                                                                           FILED
                            NOT FOR PUBLICATION                            DEC 11 2013

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



                             FOR THE NINTH CIRCUIT


DONALD EUGENE MOSER,                             No. 12-15805

               Plaintiff - Appellant,            D.C. No. 3:09-cv-08208-NVW

  v.
                                                 MEMORANDUM*
D. McGINNIS, Deputy Sheriff; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Arizona state prisoner Donald Eugene Moser appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging unreasonable search and

serizure in violation of the Fourth Amendment. We have jurisdiction under 28

U.S.C. § 1291. We review for clear error an award of actual damages, Jarvis v. K2

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Inc., 486 F.3d 526, 529 (9th Cir. 2007), and for an abuse of discretion an award of

punitive damages, Fair Housing of Marin v. Combs, 285 F.3d 899, 906-07 (9th

Cir. 2002). We affirm.

      The district court did not commit clear error by awarding no actual damages

because Moser admitted that he did not have evidence of actual damages by failing

to respond to defendants’ requests for admission, and he did not bring a motion to

withdraw his admissions under Federal Rule of Civil Procedure 36(b). See Fed. R.

Civ. P. 36(b) (“A matter admitted under this rule is conclusively established unless

the court, on motion, permits the admission to be withdrawn or amended.”); Colon

v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (“Unanswered requests for

admissions may be relied on as the basis for granting summary judgment.”); see

also Hazle v. Crofoot, 727 F.3d 983, 992 & n.6 (9th Cir. 2013) (actual injury

required for compensatory damages award).

      The district court did not abuse its discretion by denying Moser punitive

damages because he failed to proffer evidence showing that defendants acted with

malice, in reckless disregard, or in an oppressive manner. See Dang v. Cross, 422

F.3d 800, 807 (9th Cir. 2005) (discussing three predicates for punitive damages

under § 1983).

      The district court properly dismissed Moser’s claim against defendant


                                          2                                     12-15805
Waugh because Moser sued Waugh solely on the basis of his position as a

supervisor, and Moser alleged no facts showing supervisory liability. See Starr v.

Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (setting forth elements for

supervisory liability under § 1983); Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th

Cir. 2007) (standard of review).

      The district court did not abuse its discretion by denying Moser’s “Motion

for Research and Preparation Costs” because Moser is pro se and, thus, not entitled

to attorney’s fees. See Kay v. Ehrler, 499 U.S. 432, 435 (1991) (“[A] pro se

litigant who is not a lawyer is not entitled to attorney’s fees.”).

       We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      We do not consider any documents that are not part of the district court

record. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988)

(“Papers not filed with the district court or admitted into evidence by that court are

not part of the clerk’s record and cannot be part of the record on appeal.”).

      Moser’s contention concerning judicial bias is unsupported by the record.

      AFFIRMED.




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