116 F.3d 486
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Barbara SARGENT, Plaintiff-Appellant,v.CITY OF MODESTO;  Craig Wend;  Allen Pengra;  Tom Allen,Defendants-Appellees.
No. 96-16665.
United States Court of Appeals,Ninth Circuit.
Submitted June 3, 1997.*Decided June 5, 1997.

Appeal from the United States District Court for the Eastern District of California, No. CV-94-06059-REC/DLB;  Robert E. Coyle, District Judge, Presiding
Before:  NORRIS, LEAVY and TASHIMA, Circuit Judges.


1
MEMORANDUM**


2
Barbara Sargent appeals the district court's summary judgment in favor of the City of Modesto and police officer Craig Wend in Sargent' § 42 U.S.C. § 1983 action, alleging constitutional violations during the execution of a search warrant.


3
Sargent contends that defendants violated Fed.R.Civ.P. 5(d) when they filed their motion for summary judgment with the district court minutes before the motion was served on Sargent.  For the reasons stated in the district court's order of 2/16/96, we affirm.  Appellees request for costs for a frivolous appeal is construed as a request for damages pursuant to Fed.  R.App. P. 38(a).  So construed, the request is denied without prejudice, because Rule 38 only permits an award of damages "after a separately filed motion or notice from the court and reasonable opportunity to respond."   See Gabor v. Frazer, 78 F.3d 459, 460 (9th Cir.1996).


4
AFFIRMED.



*
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


