E. Wade v. Woody Gilliland

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2023
• Docket: 21-17007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

E. K. WADE, No. 21-17007

Plaintiff-Appellant, D.C. No. 3:10-cv-00425-WHA

v. MEMORANDUM* WOODY GILLILAND; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding

Submitted June 16, 2023** San Francisco, California

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

E.K. Wade appeals pro se from the district court’s post-judgment order

denying relief from its June 2010 prefiling order declaring Wade a vexatious

litigant and requiring him to obtain permission before filing additional actions

related to his termination. We have jurisdiction under 28 U.S.C. § 1291.

* 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). Reviewing for an abuse of discretion, Molski v. Evergreen Dynasty Corp., 500

F.3d 1047, 1056 (9th Cir. 2007), we affirm.

Denial of Wade’s motion to reopen the case was not an abuse of discretion.

We liberally construe Wade’s motion as one under Federal Rule of Civil Procedure

60(b). To the extent the motion sought relief under either Rule 60(b)(1) or

60(b)(3), the district court lacked jurisdiction to consider it because the motion was

filed more than one year after judgment was entered. See Fed. R. Civ. P. 60(c)(1);

Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989). To the extent that the

motion fell within Rule 60(b)(4) or 60(b)(6), Wade failed to establish any

circumstances justifying relief. See Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th

Cir. 2012).

We do not consider the underlying prefiling order because the notice of

appeal is untimely as to that order. See Fed. R. App. P. 4(a)(4)(A)(vi); Stephanie-

Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.

2007).

AFFIRMED.1

1 The motions for reconsideration (Dkt. Nos. 20, 21) are DENIED.