John Burton v. Spokane Police Department

FILED
NOT FOR PUBLICATION APR 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN BURTON, No. 12-35643
Plaintiff - Appellant, D.C. No. 2:06-cv-00322-RHW
v.
MEMORANDUM *
SPOKANE POLICE DEPARTMENT,
(SPD) Uniformed Public Safety Division;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Submitted April 16, 2013 **
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Washington state prisoner John Burton appeals pro se from the district
court’s order denying his motion to vacate the judgment in his 42 U.S.C. § 1983action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the
*
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).
district court’s determination of jurisdiction over a Fed. R. Civ. P. 60(b) motion,
Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984), and for an abuse of
discretion the district court’s denial of such a motion, Latshaw v. Trainer Wortham
& Co., Inc., 452 F.3d 1097, 1100 (9th Cir. 2006). We may affirm on any ground
supported by the record. Herring v. FDIC, 82 F.3d 282, 284 (9th Cir. 1996). We
affirm.
The district court lacked jurisdiction to consider Burton’s motion to vacate
the judgment under Rule 60(b)(2) or (3) because the motion was filed more than
one year after summary judgment was granted for defendants. See Fed. R. Civ. P.
60(c)(1) (requiring a motion under Rule 60(b)(1)-(3) to be made within one year
after the entry of the judgment or order); Nevitt v. United States, 886 F.2d 1187,
1188 (9th Cir. 1989) (a district court lacks jurisdiction to consider an untimely
motion to vacate a judgment).
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) (per curiam).
AFFIRMED.
2 12-35643