                                                                               FILED
                           NOT FOR PUBLICATION                                 JAN 30 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


WILLIAM M. WINDSOR,                              No.    14-36042

              Plaintiff-Appellant,               D.C. No. 9:13-cv-00311-DLC

 v.
                                                 MEMORANDUM*
SEAN M. BOUSHIE; UNIVERSITY OF
MONTANA,

              Defendants-Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                           Submitted January 18, 2017**

Before:      TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

      William M. Windsor appeals pro se from the district court’s order declaring

him a vexatious litigant and its judgment dismissing his diversity action as

frivolous. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of discretion. Denton v. Hernandez, 504 U.S. 25, 33-34 (1992) (dismissal of a

complaint as frivolous); Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056-

57 (9th Cir. 2007) (vexatious litigant order). We affirm.

         The district court did not abuse its discretion in dismissing Windsor’s action

as frivolous because Windsor’s complaint, liberally constured, lacks an arguable

basis in fact. See Denton, 504 U.S. at 32-33 (a claim lacks an arguable basis in fact

“when the facts alleged rise to the level of the irrational or the wholly incredible . .

. .”).

         The district court did not abuse its discretion in declaring Windsor a

vexatious litigant and imposing a pre-filing order against him because it gave

Windsor notice and an opportunity to be heard, developed an adequate record for

review, made findings regarding his frivolous litigation history, and narrowly

tailored the restrictions in the pre-filing order. See Molski, 500 F.3d at 1056-61

(discussing factors to consider before imposing pre-filing restrictions). Contrary to

Windsor’s contention, the district court satisfied the requirement of providing an

opportunity to be heard by written submission rather than an oral or evidentiary

hearing.

         We reject as meritless Windsor’s various contentions regarding Magistrate

Judge Lynch.


                                             2                                    14-36042
      Appellee Boushie’s request for sanctions, set forth in his answering brief, is

denied. See Fed. R. App. P. 38 (requiring a separate motion for fees); Winterrowd

v. Am. Gen. Annuity Ins. Co., 556 F.3d 815, 828 (9th Cir. 2009) (a request made in

an appellate brief does not satisfy Rule 38).

      AFFIRMED.




                                           3                                  14-36042
