John Burton v. Spokane Police Department , 473 F. App'x 731 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 25 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN BURTON, No. 11-35267
Plaintiff - Appellant, D.C. No. 2:06-cv-00322-RHW
v.
MEMORANDUM *
SPOKANE POLICE DEPARTMENT,
(SPD) Uniformed Public Safety Division;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Washington state prisoner John Burton appeals pro se from the district
court’s order denying his motion to vacate the judgment in his 42 U.S.C. § 1983*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
district court’s determination of jurisdiction over a Fed. R. Civ. P. 60(b) motion,
Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984), and for an abuse of
discretion the district court’s denial of such a motion, Latshaw v. Trainer Wortham
& Co., 452 F.3d 1097, 1100 (9th Cir. 2006). We affirm.
The district court properly denied as untimely Burton’s motion to vacate the
judgment under Rule 60(b)(2) or (3) because it was filed more than one year after
summary judgment was granted for defendants. See Fed. R. Civ. P. 60(c)(1)
(requiring a motion under Rule 60(b)(1)-(3) to be made within one year after entry
of judgment); Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989) (a
district court lacks jurisdiction to consider an untimely motion to vacate a
judgment).
To the extent that Burton’s motion falls within Rule 60(b)(6), the district
court did not abuse its discretion when it denied Burton’s motion because his
almost two-year delay before filing the motion was unreasonable. See Fed. R. Civ.
P. 60(c)(1) (required a motion under Rule 60(b) to be made within a “reasonable
time”); Hammer v. Drago (In re Hammer), 940 F.2d 524, 526 (9th Cir. 1991)
(holding that it was not an abuse of discretion to find an unexcused two-year delay
unreasonable).
2 11-35267
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, nor arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Burton’s pending motions are denied.
AFFIRMED.
3 11-35267