In Re Larry Arnold Wall, Debtor.larry Arnold Wall, Appellant, v. Shirley Diane Wellema, Appellee, 108 F.3d 340 (9th Cir. 1997)

MEMORANDUM^** 

Larry Wall appeals pro se the district court's affirmance of the Bankruptcy Court's summary judgment for Shirley Wellema, the judgment creditor. Wall contends that the district court erred by finding that the state court judgment rendered against him for sexual battery against Wellema was not dischargeable pursuant to 11 U.S.C. § 523(a) (6). We have jurisdiction under 28 U.S.C. § 158(d), and we affirm for the reasons set forth in the district court's order filed April 28, 1995.

Wellema also requests damages in the amount of $6,350.00 pursuant to Fed. R. App. P. 38(a) for filing a frivolous appeal. Rule 38, however, only permits an award of damages "after a separately filed motion or notice from the court and reasonable opportunity to respond." See Fed. R. App. P. 38(a). Accordingly, Wellema's request for damages under Rule 38 is denied without prejudice. See Gabor v. Frazer, 78 F.3d 459, 460 (9th Cir. 1996) (denying Rule 38 motion made in appellate brief without prejudice, and allowing the requesting party to file a separate fee motion).

AFFIRMED.