Unpublished Disposition, 904 F.2d 710 (9th Cir. 1989)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 904 F.2d 710 (9th Cir. 1989)

Charles R. COOK, Plaintiff-Appellant,v.Brad GATES; Randall Blair; Tim Simon; Richard Wilder;Michael Foote; County of Orange; City of SantaAna, Defendants-Appellees.

No. 89-55434.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1990.* Decided June 12, 1990.

Before ALARCON, BRUNETTI and O'SCANNLAIN, Circuit Judges.


Cook appeals from the district court's entry of summary judgment in favor of defendants in Cook's action under 42 U.S.C. § 1983. We affirm.

The district court granted summary judgment against Cook on two different grounds. As to the alleged incidents between 1982 and 1985 of which Cook complains, the district court determined that Cook's action was barred by the statute of limitations. We agree with the reasoning of the district court, as set forth on pages 3-4 of its Memorandum Decision and Order filed on March 22, 1989. We do not consider Cook's argument that defendants are estopped from raising the statute of limitations; Cook did not raise this argument below, and exceptional circumstances do not exist such that it is appropriate for us nonetheless to consider the contention. See Animal Protection Inst. of Amer. v. Hodel, 860 F.2d 920, 927 (9th Cir. 1988) (exceptional circumstances justifying an appellate court's entertainment of an issue not raised below may exist when the issue is a purely legal one and the pertinent record has been fully developed, when entertainment will prevent manifest injustice, or when there has been clear error).

As to any alleged post-1985 incidents, the district court granted summary judgment against Cook because of his failure to "put forth [ ]sufficient evidence to establish that the defendants, acting under color of state law, ... deprived [Cook] of rights secured by the Constitution or federal statutes." Cook v. Gates, No. CV 87-5527-RJK, Memorandum of Decision and Order at 5 (C.D. Cal. Mar. 22, 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (" [Federal] Rule [of Civil Procedure] 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.")). Because Cook does not challenge this determination on appeal, he has abandoned it. See Fed. R. App. P. 28(a) (4) ("The argument [section of an appellant's brief] shall contain the contentions of the appellant with respect to the issues presented...."); see, e.g., Meehan v. County of Los Angeles, 856 F.2d 102, 105 n. 1 (9th Cir. 1988) ("deem [ing] abandoned" pursuant to Rule 28 an issue that was not briefed on appeal).

Appellees' motion for sanctions under Federal Rule of Appellate Procedure 38 is granted; attorneys' fees and double costs are awarded to the appellees. On appeal, Cook discusses only the events that allegedly occurred from 1982 to 1985; any cause of action based on these alleged events, however, is clearly barred by the statute of limitations, as the district court determined. Because there can be no serious argument to the contrary, notwithstanding Cook's attempt to raise on appeal for the first time the question of estoppel, his appeal of this issue is frivolous and sanctions are appropriate. See Fed. R. App. P. 38 ("If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee."); see also International Union of Bricklayers & Allied Craftsman v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (9th Cir. 1985) ("A frivolous appeal [under Rule 38] is defined as one in which the result is obvious, or where the appellants' claims are utterly meritless.").



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit 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 Ninth Circuit R. 36-3