Passion Moore v. City of Santa Barbara

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2018
• Docket: 15-55316
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 15 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PASSION MOORE, No. 15-55316

Plaintiff-Appellant, D.C. No. 2:13-cv-07354-BRO-RZ

v.

CITY OF SANTA BARBARA; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Beverly Reid O’Connell, District Judge, Presiding

Submitted June 8, 2018**

Before: FISHER and CHRISTEN, Circuit Judges, and SHEA, District Judge.***

Passion Moore appeals from the district court’s order denying her motion for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Pursuant to the parties’ request, this case was submitted for decision on the briefs without oral argument. See Fed. R. App. P. 34(f).

*** The Honorable Edward F. Shea, Senior United States District Judge for the Eastern District of Washington, sitting by designation.

1 reconsideration.1 We have jurisdiction under 28 U.S.C. § 1291. When a district

court denies a motion brought under Federal Rule of Civil Procedure 60(b), we

review for an abuse of discretion. Smith v. Pac. Props. & Dev. Corp., 358 F.3d

1097, 1100 (9th Cir. 2004). We affirm.

In denying Ms. Moore’s motion to alter or amend the judgment, the district

court judge wrote a thorough and well-reasoned decision that addressed all the

issues raised to date. Prior to summary judgment, all of Ms. Moore’s arguments

relating to an improperly enhanced bail were limited to supporting her racial-

animus claims. Ms. Moore did not assert an Eighth Amendment excessive-bail

claim before the district court on summary judgment, and she therefore waived that

issue. See Intercontinental Travel Mktg., Inc. v. F.D.I.C., 45 F.3d 1278, 1286 (9th

Cir. 1994) (“Raising an issue for the first time in a motion to reconsider is not

considered adequate preservation of the issue at a summary judgment stage.”). As

such, the district court properly declined to consider the merits of Ms. Moore’s

untimely excessive-bail arguments.

1 Ms. Moore filed a motion to alter or amend the judgment, citing Federal Rule of Civil Procedure Rule 59(e). The district court correctly construed Ms. Moore’s motion as a Rule 60(b) motion because she had not filed it within 28 days of judgment. See Fed. R. Civ. P. 59(e) (requiring a motion to alter or amend a judgment to be filed within 28 days after entry of judgment). Accordingly, we do not review the underlying judgment. See Fed. R. App. P. 4(a)(4); Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir. 1986) (holding that an untimely motion does not suspend time to appeal).

2 The district court did not abuse its discretion by denying Ms. Moore’s

motion because she failed to demonstrate any basis for relief. See Fed. R. Civ.

P. 60(b); Fuller v. MG Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (setting forth

grounds for relief under Rule 60).

Appellees’ request for judicial notice, filed October 7, 2015 (Docket Entry

No. 21), is DENIED.

AFFIRMED.