John Warden v. Coolidge Unified School Distri, et al, No. 09-16594 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 05 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOHN P. WARDEN, Nos. 09-16594, 09-17610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 DISTRICT, et al., MEMORANDUM * 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

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