NOT FOR PUBLICATION FILED

OCT 20 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUSH SPINKS, Jr., No. 21-15007

Plaintiff-Appellant, D.C. No. 1:10-cv-01886-AWI-SKO

v.

MEMORANDUM*

E. LOPEZ,

Defendant-Appellee,

and

T. LAU; C. SCHUTT,

Defendants.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Submitted October 12, 2021**

Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges.

Rush Spinks, Jr., appeals pro se from the district court’s order denying his

* 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). Federal Rule of Civil Procedure 60(b) motion for relief from the court’s summary

judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his

serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review

for an abuse of discretion. Washington v. Ryan, 833 F.3d 1087, 1091 (9th Cir.

2016) (en banc). We affirm.

The district court did not abuse its discretion by construing Spinks’s motion

as one for relief under Rule 60(b)(3) and denying it as untimely because the motion

was filed more than six years after the entry of judgment. See Fed. R. Civ. P.

60(b)(3) (providing that a court may relieve a party from a final judgment for

fraud, misrepresentation, or misconduct by an opposing party); 60(c)(1) (requiring

a motion under Rule 60(b) to be made within a reasonable time—and for reasons

(1), (2), and (3) no more than a year after the entry of the judgment); see also

United States v. Estate of Stonehill, 660 F.3d 415, 444 (9th Cir. 2011) (“Mere

nondisclosure of evidence is typically not enough to constitute fraud on the court,

and perjury by a party or witness, by itself, is not normally fraud on the court.”

(citation and internal quotation marks omitted)); Molloy v. Wilson, 878 F.2d 313,

316-17 (9th Cir. 1989) (setting forth the standard of review for construing a Rule

60(b) motion, and noting that Rule 60(b)(6) motions can only be brought for

reasons other than those enumerated in subsections (1)–(5)).

Even if Spinks’s motion were construed as being brought under Rule

2 21-15007 60(b)(6), Spinks has not shown the requisite extraordinary circumstances to be

granted relief. See United States v. Alpine Land & Reservoir Co., 984 F.2d 1047,

1049 (9th Cir. 1993).

The district court did not abuse its discretion by denying Spinks’s requests

for entry of default because defendant did not fail to plead or otherwise defend.

See Fed. R. Civ. P. 55(a) (providing for entry of default when a defendant “has

failed to plead or otherwise defend”); Speiser, Krause & Madole P.C. v. Ortiz, 271

F.3d 884, 886 (9th Cir. 2001) (setting forth standard of review); see also E.D. Cal.

R. 78-230(1) (providing that a failure to file an opposition or statement of non-

opposition to a motion may be, but is not required to be, deemed a waiver to any

opposition to the granting of the motion and may result in the imposition of

sanctions).

The parties’ motions for judicial notice (Docket Entry Nos. 17 and 23) are

granted.

AFFIRMED.

3 21-15007