                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 11 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NICOLAS AQUINO,                                No. 16-16815

              Plaintiff-Appellee,              D.C. No. 5:14-CV-03387-EJD

 v.                                            MEMORANDUM*

COUNTY OF MONTEREY SHERIFF’S
DEPARTMENT; IVAN RODRIGUEZ,
an individual,

              Defendants-Appellants.


                   Appeal from the United States District Court
                     for the Northern District of California
                 Edward J. Davila, District Court Judge, Presiding

                    Argued and Submitted September 12, 2017
                            San Francisco, California

Before: KOZINSKI and FRIEDLAND, Circuit Judges, and BENNETT, ** District
Judge.

      Summary judgment was denied on defendant-appellant Ivan Rodriguez’s

claims of qualified immunity because the district court found genuine issues of

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
material fact remained unresolved concerning each claim. We agree and thus

affirm.

      Plaintiff-appellee Nicolas Aquino moved this court to impose sanctions

against Rodriguez for filing a frivolous appeal. See FED. R. APP. P. 38 (“[I]f a

court of appeals determines that an appeal is frivolous, it may, after a separately

filed motion or notice from the court and reasonable opportunity to respond, award

just damages and single or double costs to the appellee.”). “‘An appeal is

considered frivolous if the result is obvious or the appellant’s arguments are

wholly without merit.’” Ingle v. Circuit City, 408 F.3d 592, 595 (9th Cir. 2005)

(quoting Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1417 (9th Cir. 1990)).



      The request for sanctions in Aquino’s answering brief does not provide

Rodriguez sufficient notice. See Higgins v. Vortex Fishing Sys., Inc., 379 F.3d

701, 709 (9th Cir. 2004) (“A request made in an appellate brief does not satisfy

Rule 38 . . . .” (quoting State of Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission

Ltd.), 98 F.3d 1147, 1154 (9th Cir. 1996))). However, we may, sua sponte, impose

sanctions for filing a frivolous appeal under Rule 38 “after . . . notice from the

court and reasonable opportunity to respond.” FED. R. APP. P. 38. We order

Rodriguez to show cause in writing, within 14 days after this memorandum


                                           2
disposition is filed, why we should not award attorneys’ fees and double costs to

Aquino under Rule 38—including addressing the questions raised at oral argument

about Rodriguez’s potentially frivolous positions. Aquino may file a reply within

14 days after service of Rodriguez’s response.

      AFFIRMED.




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