Fitzsimmons

MEMORANDUM

Kevin James Fitzsimmons appeals pro se the district court’s denial of his Fed. R.Civ.P. 60(b) motion to set aside the judgment dismissing his 42 U.S.C. § 1983 action.

We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

We review for abuse of discretion an order denying a Fed.R.Civ.P. 60(b) motion for relief from judgment. See Briones v. Riviera Hotel, 116 F.3d 379, 380 (9th Cir.1997). On appeal from the denial of a Rule 60(b) motion, this court does not reach the merits of the underlying judgment. See id.

Because the balance of equities mandated by Pioneer Investment Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 , 113 S.Ct. 1489 , 123 L.Ed.2d 74 (1993) and Briones weigh in favor of defendants, the district court did not abuse its discretion by denying the Rule 60(b) motion. See Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir.2000).

Because defendants fail to establish that Fitzsimmon’s claim was frivolous, vexatious, or brought to harass or embarrass, we deny the request for attorney’s fees. See Benigni v. City of Hemet, 879 F.2d 473, 480 (9th Cir.1988).

AFFIRMED.

. This disposition is not appropriate…