John Burton v. Spokane Police Department

517 F. App'x 554

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2013
• Docket: 12-35643
• Status: Unpublished

Opinion

MEMORANDUM **

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. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the 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.1995). 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.