William Whitsitt v. City of Stockton

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 23, 2024

Docket21-16774

StatusUnpublished

This text of William Whitsitt v. City of Stockton (William Whitsitt v. City of Stockton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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William Whitsitt v. City of Stockton, (9th Cir. 2024).

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Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM J. WHITSITT, No. 21-16774

Plaintiff-Appellant, D.C. No. 2:20-cv-00131-KJM-AC

v. MEMORANDUM* CITY OF STOCKTON; SAN JOAQUIN COUNTY; FRIAD; OSCAR OCHOA; PAUL BILLMAN; KELLY MORRIS; NICKY MORRIS; JAYNE C. LEE; J. NORTHUP, Judge; BECKY R. DIEL; SHORE; MCKINLEY; SUPERIOR COURT OF SAN JOAQUIN COUNTY; SAN JOAQUIN COUNTY DISTRICT ATTORNEY'S OFFICE; SAN JOAQUIN COUNTY PROBATION DEPARTMENT; SHORE MCKINLEY CONGER LLP; LIZARDO,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted July 16, 2024**

* 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). Before: SCHROEDER, VANDYKE, and KOH, Circuit Judges.

The motion to recall the mandate (Docket Entry Nos. 22 and 23) is granted.

The February 2, 2023 order of dismissal for failure to prosecute is vacated and the

appeal is reinstated. The Clerk will file the supplemental opening brief received on

February 27, 2024.

William J. Whitsitt appeals pro se from the district court’s order denying his

Federal Rule of Civil Procedure 60(b) motion seeking to reopen his action alleging

various federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291.

We review for an abuse of discretion. Lemoge v. United States, 587 F.3d 1188,

1191-92 (9th Cir. 2009). We affirm.

The district court did not abuse its discretion in denying Whitsitt’s motion to

reopen his case because Whitsitt failed to demonstrate a basis for relief. See Sch.

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

Cir. 1993) (setting forth grounds for relief under Rule 60(b)).

We do not consider Whitsitt’s contentions concerning the merits of the

underlying case. See Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 444 (9th

Cir. 2019) (“[A]n appeal from the denial of a Rule 60(b) motion brings up for

review only the denial of that motion, . . . not the underlying judgment.”).

AFFIRMED.

2 21-16774

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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 23 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM J. WHITSITT, No. 21-16774

Plaintiff-Appellant, D.C. No. 2:20-cv-00131-KJM-AC

v. MEMORANDUM* CITY OF STOCKTON; SAN JOAQUIN COUNTY; FRIAD; OSCAR OCHOA; PAUL BILLMAN; KELLY MORRIS; NICKY MORRIS; JAYNE C. LEE; J. NORTHUP, Judge; BECKY R. DIEL; SHORE; MCKINLEY; SUPERIOR COURT OF SAN JOAQUIN COUNTY; SAN JOAQUIN COUNTY DISTRICT ATTORNEY'S OFFICE; SAN JOAQUIN COUNTY PROBATION DEPARTMENT; SHORE MCKINLEY CONGER LLP; LIZARDO,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted July 16, 2024**

* 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). Before: SCHROEDER, VANDYKE, and KOH, Circuit Judges.

The motion to recall the mandate (Docket Entry Nos. 22 and 23) is granted.

The February 2, 2023 order of dismissal for failure to prosecute is vacated and the

appeal is reinstated. The Clerk will file the supplemental opening brief received on

February 27, 2024.

William J. Whitsitt appeals pro se from the district court’s order denying his

Federal Rule of Civil Procedure 60(b) motion seeking to reopen his action alleging

various federal and state law claims. We have jurisdiction under 28 U.S.C. § 1291.

We review for an abuse of discretion. Lemoge v. United States, 587 F.3d 1188,

1191-92 (9th Cir. 2009). We affirm.

The district court did not abuse its discretion in denying Whitsitt’s motion to

reopen his case because Whitsitt failed to demonstrate a basis for relief. See Sch.

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

Cir. 1993) (setting forth grounds for relief under Rule 60(b)).

We do not consider Whitsitt’s contentions concerning the merits of the

underlying case. See Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 444 (9th

Cir. 2019) (“[A]n appeal from the denial of a Rule 60(b) motion brings up for

review only the denial of that motion, . . . not the underlying judgment.”).

AFFIRMED.

2 21-16774

Related

School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation E.J. Bartells Company, a Washington Corporation A.P. Green Refractories Company, School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation, and Fibreboard Corp., a Delaware Corporation as Successor in Interest to the Paraffine Companies, Inc., Pabco Products, Inc., Fibreboard Paper Products Corporation, Plant Rubber & Asbestos Works and Plant Rubber & Asbestos Co., School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation Armstrong Cork Company, Inc., a Delaware Corporation Atlas Asbestos Company, Inc., a Canadian Corporation, and Keene Corporation, a New York Corporation Individually and as Successor in Interest to the Baldwin Ehret Hill Company, School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation Armstrong Cork Company, Inc., a Delaware Corporation Atlas Asbestos Company, Inc., a Canadian Corporation, and Us Gypsum Company, a Delaware Corporation, School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation Armstrong Cork Company, Inc., a Delaware Corporation Atlas Asbestos Company, Inc., a Canadian Corporation, and Owens-Corning Fiberglass Corporation, School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation Armstrong Cork Company, Inc., a Delaware Corporation Atlas Asbestos Company, Inc., a Canadian Corporation, and Flintkote Company, a Delaware Corporation, School District No. 1j, Multnomah County, Oregon v. Acands, Inc., a Pennsylvania Corporation Atlas Asbestos Company, Inc., a Canadian Corporation, and Armstrong Cork Company, Inc., a Delaware Corporation

5 F.3d 1255 (Ninth Circuit, 1993)

Lemoge v. United States

587 F.3d 1188 (Ninth Circuit, 2009)

Melissia Henson v. Fidelity National Financial

943 F.3d 434 (Ninth Circuit, 2019)

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