Earl Warner v. Matthew Cate ( 2012 )

FILED
NOT FOR PUBLICATION NOV 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EARL WARNER, No. 11-17794
Plaintiff - Appellant, D.C. No. 3:09-cv-04081-JW
v.
MEMORANDUM *
MATTHEW CATE, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Submitted November 13, 2012 **
Before: CANBY, TROTT, and W. FLETCHER, Circuit Judges.
Earl Warner, a California state prisoner, appeals pro se from the district
court’s order denying his motion for relief from judgment in his 42 U.S.C. § 1983action alleging prison officials discriminated against him with regard to his work
*
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).
assignment. We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion, Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100
(9th Cir. 2006), and we affirm.
The district court did not abuse its discretion in denying Warner’s motion for
relief from judgment because Warner failed to show that the mental breakdown he
suffered while the summary judgment motion was pending constituted a basis for
relief from the judgment. See Fed. R. Civ. P. 60(b); Sch. Dist. No. 1J, Multnomah
Cnty, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (setting forth grounds
justifying relief).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, 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).
AFFIRMED.
2 11-17794