Mychal Reed v. P. Vera

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYCHAL ANDRA REED, No. 19-16449
Plaintiff-Appellant, D.C. No. 1:18-cv-00297-AWI-EPG
v.
MEMORANDUM*
D. MADSEN, Lieutenant; et al.,
Defendants-Appellees,
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
California state prisoner Mychal Andra Reed appeals pro se from the district
court’s order denying his motion to withdraw the voluntary dismissal with
prejudice of his 42 U.S.C. § 1983 action alleging constitutional claims and claims
under the Americans with Disabilities Act. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review for an abuse of discretion a district court’s denial of a Fed. R.
Civ. P. 60(b) motion. United Commercial Ins. Serv., Inc. v. Paymaster Corp., 962
F.2d 853, 856 (9th Cir. 1992). We affirm.
The district court did not abuse its discretion in denying Reed’s motion
under Rule 60(b)(6) because Reed failed to establish extraordinary circumstances
warranting relief. See Lehman v. United States, 154 F.3d 1010, 1017 (9th Cir.
1998) (requirements for obtaining relief under Rule 60(b)(6)); Keeling v. Sheet
Metal Workers Int’l Ass’n, Local Union 162, 937 F.2d 408, 410 (9th Cir. 1991)
(explaining that “repudiation, or ‘complete frustration,’ of the settlement
agreement” constitutes an extraordinary circumstance justifying relief under Rule
60(b)(6)).
We do not consider Reed’s due process claim because Reed did not replead
it in the operative complaint. See Lacey v. Maricopa County, 693 F.3d 896, 928
(9th Cir. 2012) (en banc) (claims dismissed with leave to amend are waived if not
repled).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Reed’s motion to admit additional evidence (Docket Entry No. 26) is denied.
AFFIRMED.
2 19-16449