Anthony Burriola v. Ted D'Amico ( 2016 )

FILED
NOT FOR PUBLICATION JUN 06 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY J. BURRIOLA, No. 13-16418
Plaintiff - Appellant, D.C. No. 3:04-cv-00346-JCM-
RAM
v.
TED D’AMICO; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Nevada state prisoner Anthony J. Burriola appeals pro se from the district
court’s order denying his motion to reopen his 42 U.S.C. § 1983 action following
the dismissal of his claims pursuant to a settlement agreement. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Sch.
*
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).
Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.
1993). We affirm.
The district court did not abuse its discretion by denying Burriola’s motion
to reopen because Burriola failed to demonstrate any basis for relief. See id. at
1262-63 (setting forth grounds for relief from judgment under Fed. R. Civ. P. 59(e)
and Fed. R. Civ. P. 60(b)); see also United States v. Stonehill, 660 F.3d 415, 443-
44 (9th Cir. 2011) (fraud upon the court in the Rule 60(b) context must be
established by clear and convincing evidence).
We lack jurisdiction to review Burriola’s challenges to the district court’s
prior orders because Burriola did not file a timely notice of appeal or a timely post-
judgment tolling motion. See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be
filed within 30 days after entry of judgment); Bowles v. Russell, 551 U.S. 205, 214
(2007) (“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.”).
AFFIRMED.
2 13-16418