                                                                            FILED
                               NOT FOR PUBLICATION                           OCT 05 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



JOHN P. WARDEN,                                   Nos. 09-16594,
                                                       09-17610
                 Plaintiff - Appellant,
                                                  D.C. No. 2:07-cv-02273-MHB
  v.

COOLIDGE UNIFIED SCHOOL                           MEMORANDUM *
DISTRICT, et al.,

                 Defendants - Appellees.




                     Appeal from the United States District Court
                              for the District of Arizona
                    Michelle H. Burns, Magistrate Judge, Presiding **

                            Submitted September 22, 2010 ***

Before:         WALLACE, HAWKINS, and THOMAS, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
                The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes these appeals are suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      We affirm the district court’s dismissal and summary judgment in favor of

defendants on John P. Warden’s (“Warden”) equal protection, Title VII, and

Americans with Disabilities Act claims for the reasons stated in the district court’s

orders entered on December 16, 2008 and July 1, 2009.

      We do not consider Warden’s arguments that were not specifically and

distinctly argued the opening brief. See Friends of Yosemite Valley v. Kempthorne,

520 F.3d 1024, 1033 (9th Cir. 2008).

      Warden’s remaining contentions concerning the district court’s dismissal

and summary judgment are unpersuasive.

      We vacate the district court’s award of attorney’s fees to Coolidge Unified

School District because there is no indication in the record that the district court

considered Warden’s pro se status or found his action to be frivolous,

unreasonable, or without foundation. See Miller v. L.A. County Bd. of Educ., 827

F.2d 617, 619-20 (9th Cir. 1987); see also McGrath v. County of Nevada, 67 F.3d

248, 253 (9th Cir. 1995) (the district court must explain how it exercised its

discretion in calculating an attorney’s fee award).

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                           2                                     09-16594
