Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

John D. Kirkland appeals pro se the district court's summary judgment in favor of A.G. Spanos, Inc. and El Dorado Village, Inc. (collectively "Spanos")¹  in his negligence action for injuries sustained during an assault while in Spanos's apartment complex. Kirkland contends that summary judgment was inappropriate because (1) the evidence shows that there are genuine unresolved issues of material fact, and (2) Spanos failed to carry its burden of proof that no triable issue of fact existed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We review a summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). Summary judgment is appropriate if the evidence "show [s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

The party moving for summary judgment "bears the initial responsibility for informing the district court of the basis for its motion...." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). " [T]he burden on the moving party may be discharged by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

In cases where the nonmoving party bears the burden of proof at trial with respect to a material fact, the party opposing the motion is required "to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324 (quoting Fed. R. Civ. P. 56(e)). "To show existence of a 'genuine' issue, appellant [ ] must present some evidence establishing each element of [his] claims on which [he] would bear the burden of proof at trial. [citation omitted] [He] must produce at least some significant probative evidence tending to support the complaint." Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations omitted).

Here, Spanos met its initial burden of showing the absence of evidence to support Kirkland's action. Because Kirkland has the burden of proving at trial that Spanos's negligence caused his injury, he must produce specific evidence showing a genuine issue of fact as to each element of his claim to withstand summary judgment. See Celotex, 477 U.S. at 322, 324.² 

Kirkland, however, did not file an opposition to the motion for summary judgment.³  Instead, after the district court granted summary judgment for Spanos, Kirkland filed his notice of appeal and, at the same time, a motion for reconsideration pursuant to Federal Rule of Civil Procedure 60(b). In his Rule 60(b) motion, Kirkland included a declaration setting forth his opposition to the summary judgment. We denied Kirkland's request for a limited remand to the district court for consideration of the Rule 60(b) motion, and the district court denied the Rule 60(b) motion.

A Rule 60(b) motion is separately appealable. Taag Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1353 (9th Cir. 1990). Kirkland did not file a second notice of appeal after the district court denied the Rule 60(b) motion. Accordingly, we do not have jurisdiction to consider the denial of the motion, nor the declaration Kirkland submitted with it. See id. Thus, we consider only Spanos's unopposed motion for summary judgment.

Kirkland cannot rest on the allegations in his pleadings to overcome a motion for summary judgment. See Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892, 898 (9th Cir. 1987), cert. denied, 487 U.S. 1234 (1988). Kirkland did not come forward with any further evidence to sustain his allegations. Kirkland also refused to submit to a deposition or answer interrogatories, despite repeated requests from Spanos.

Thus, Kirkland failed to offer significant probative evidence of specific facts to be resolved at trial. See Celotex, 477 U.S. at 324. Accordingly, the district court was correct in finding that Kirkland had not produced evidence establishing each element of his claim and that Spanos was entitled to summary judgment. See Smolen, 921 F.2d at 963.

On appeal, Spanos requests an award of attorney's fees. We have discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988). "An appeal is frivolous if the result is obvious, or the arguments of error are wholly without merit." Wilcox, 848 F.2d at 1009 (citation omitted). Kirkland's claims are wholly without merit. In the exercise of our discretion, however, we decline to award attorney's fees on appeal to Spanos.

AFFIRMED.