Philip Hughes v. Isidro Baca , 692 F. App'x 884 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP HUGHES, No. 16-16714
Plaintiff-Appellant, D.C. No. 3:14-cv-00626-RCJ-VPC
v.
MEMORANDUM*
ISIDRO BACA, Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Nevada state prisoner Philip Hughes appeals pro se the district court’s order
denying his Federal Rule of Civil Procedure 60(b)(6) motion for relief from the
court’s judgment dismissing Hughes’s 42 U.S.C. § 1983 action alleging
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for abuse of discretion an order denying a Rule 60(b) motion, Washington v. Ryan,
833 F.3d 1087, 1091 (9th Cir. 2016) (en banc), and we affirm.
To the extent that Hughes contends that the district court abused its
discretion by declining to reopen the time to file an appeal, the district court did
not abuse its discretion because Hughes’s Rule 60(b)(6) motion was filed more
than 180 days after the entry of judgment. See Fed. R. App. P. 4(a)(6) (district
court may reopen time to file appeal if moving party did not receive notice of entry
of judgment within 21 days after entry, “the motion is filed within 180 days after
the judgment . . . is entered or within 14 days after the moving party receives
notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is
earlier,” and no party would be prejudiced (emphasis added)); Washington, 833
F.3d at 1093 (stating that Fed. R. App. P. 4(a)(6) “authorizes an ‘outer time limit’
of 180 days to move for an extension of time to file an appeal . . . [and a] district
court may not otherwise relieve parties from failing to file a timely appeal due
solely to lack of notice of judgment”); see also In re Stein, 197 F.3d 421, 424 (9th
Cir. 1999) (explaining that Fed. R. App. P. 4(a)(6) requires parties “to discover the
entry [of judgment], with or without a notice” and “[f]ailing that, they lose the
right to appeal”).
To the extent that Hughes contends that the district court abused its
discretion by denying Hughes’s Rule 60(b)(6) motion because the complaint stated
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due process and Eighth Amendment deliberate indifference claims, the district
court did not abuse its discretion because Hughes failed to establish any basis for
such relief. See Fed. R. Civ. P. 60(b)(6); Harvest v. Castro, 531 F.3d 737, 749 (9th
Cir. 2008) (stating that Rule 60(b)(6) “is to be used sparingly as an equitable
remedy to prevent manifest injustice” (citation and internal quotation marks
omitted)).
The district court did not err in failing to recuse itself sua sponte because
Hughes failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;
Noli v. Comm’r., 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to
the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (alteration in
original, citation and internal quotation marks omitted)).
AFFIRMED.
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