United States v. $11,052.00 in U.S. Currency , 670 F. App'x 967 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-56251
Plaintiff-Appellee, D.C. No. 2:14-cv-04648-DSF-
AGR
v.
$11,052.00 IN U.S. CURRENCY, MEMORANDUM*
Defendant,
v.
KENNETH LAMAR SPRATT, AKA Ken
Sparks,
Movant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
*
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). Accordingly, Spratt’s
request for oral argument, set forth in his reply brief, is denied.
Kenneth Lamar Spratt, AKA Ken Sparks, appeals pro se from the district
court’s order denying his Federal Rule of Civil Procedure 60(b) motion for relief
from judgment in a civil forfeiture action under 21 U.S.C. § 881(a)(6). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the denial of a motion
under Rule 60(b)(4). United States v. $277,000 U.S. Currency, 69 F.3d 1491, 1493
(9th Cir. 1995). We review for an abuse of discretion the denial of a motion under
any other subsection of Rule 60(b). Casey v. Albertson’s Inc., 362 F.3d 1254,
1257 (9th Cir. 2004). We affirm.
The district court did not abuse its discretion by denying Spratt’s motion for
relief from judgment under Rule 60(b)(1), (3), (5), or (6) because Spratt failed to
demonstrate any basis for relief. See Sch. Dist. No. 1J, Multnomah Cty., Or. v.
ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (setting forth grounds for relief
from judgment under Rule 60(b)).
The district court properly denied Spratt’s Rule 60(b)(4) motion because the
forfeiture complaint filing deadline at 18 U.S.C. § 983(a)(3)(A) does not apply
here, as the government did not commence nonjudicial civil forfeiture proceedings.
See 18 U.S.C. § 983(a)(1)(A) (governing “nonjudicial civil forfeiture
proceeding[s]”); United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010) (setting forth requirements for obtaining relief under Rule 60(b)(4)).
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To the extent that Spratt challenges the district court’s prior orders, we lack
jurisdiction because Spratt did not file a timely notice of appeal after the district
court entered judgment on October 3, 2014. See Fed. R. App. P. 4(a)(1)(B) (notice
of appeal must be filed within 60 days after entry of judgment if one of the parties
is the United States); Stephanie-Cardona LLC v. Smith’s Food & Drug Ctrs., Inc.,
476 F.3d 701, 703 (9th Cir. 2007) (“A timely notice of appeal is a non-waivable
jurisdictional requirement.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Spratt’s requests for return of the defendant funds and an award of interest
and fees are denied.
AFFIRMED.
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