Earl Rose , Jr. v. B. Bonnet , 402 F. App'x 226 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 01 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
EARL E. ROSE, JR., No. 09-55784
Plaintiff - Appellant, D.C. No. 5:06-01236-SJO-AJW
v.
MEMORANDUM *
B. BONNET, Deputy Sheriff, in his/her
individual capacity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
California state prisoner Earl Rose, Jr. appeals from the district court’s
summary judgment and order denying his motion for reconsideration in his 42
U.S.C. § 1983 action alleging deliberate indifference to his safety. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo the grant of summary
judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and for abuse of
discretion the denial of a motion for reconsideration, Casey v. Albertson’s Inc., 362
F.3d 1254, 1257 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment on qualified
immunity grounds because defendants’ moving papers and evidence alone
established that there was no triable issue as to whether they knew of and
disregarded an excessive risk to Rose’s safety. See Farmer v. Brennan, 511 U.S.
825, 834, 837 (1994) (deliberate indifference claim requires that defendants
knowingly disregard an excessive risk to inmate’s health or safety in violation of
the Eighth Amendment); Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007)
(qualified immunity requires determining whether defendants’ conduct violated a
constitutional right and whether the right was clearly established at the time of the
alleged violation).
The district court did not abuse its discretion in denying reconsideration
because neither Rose’s counsel’s calendaring mistakes nor his ignorance of the law
in failing to file a timely opposition to defendants’ motion for summary judgment
established valid grounds for relief under Federal Rule of Civil Procedure 60(b)(1).
See Casey, 362 F.3d at 1257 (“parties are bound by the actions of their lawyers,
2 09-55784
and alleged attorney malpractice does not usually provide a basis to set aside a
judgment pursuant to Rule 60(b)(1)”).
We do not consider arguments raised for the first time on appeal. See Foti v.
City of Menlo Park, 146 F.3d 629, 238 (9th Cir. 1998).
Rose’s remaining contentions are unpersuasive.
AFFIRMED.
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