Rodney Plant v. Spackman ( 2016 )

FILED
NOT FOR PUBLICATION AUG 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY L. PLANT, No. 14-35133
Plaintiff - Appellant, D.C. No. 1:10-cv-00278-EJL
v.
MEMORANDUM*
SPACKMAN, C/O; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Rodney L. Plant, a former Idaho state prisoner, appeals pro se from the
district court’s order denying his Federal Rule of Civil Procedure 60(b) motion for
relief from the order dismissing his 42 U.S.C. § 1983 action alleging federal and
state law claims arising out of the alleged denial of his right to practice his religion.
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion, Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1100 (9th Cir.
2006), and we affirm.
The district court did not abuse its discretion by denying Plant’s Rule 60(b)
motion because Plant failed to prove by clear and convincing evidence that
defendants engaged in fraud or other misconduct in connection with the settlement
agreement, or establish extraordinary circumstances or any other ground
warranting relief from the order of dismissal. See id. at 1103 (requirements for
obtaining relief under Rule 60(b)(6)); Casey v. Albertson’s Inc., 362 F.3d 1254,
1260 (9th Cir. 2004) (requirements for obtaining relief under Rule 60(b)(3)).
While the repudiation or complete frustration of a settlement agreement can
constitute grounds to set aside a judgment under Rule 60(b)(6), see Keeling v.
Sheet Metal Workers Int’l Ass’n, Local Union 162, 937 F.2d 408, 410-11 (9th Cir.
1991), Plant has not demonstrated that such circumstances exist in this case.
Plant’s contentions that the district court erred in not incorporating the terms
of the settlement into its order of dismissal, and by ignoring Plant’s supplemental
pleading, which was filed after the case was dismissed, are meritless.
We do not consider Plant’s contentions concerning the district court’s
order denying his “Motion to Alter, Amend, or Reconsider Memorandum Decision
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and Sealed Order” because Plant failed to file a new or amended notice of appeal
after the district court issued its ruling. See Fed. R. App. P. 4(a)(4)(B)(ii).
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).
AFFIRMED.
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