John Burton v. Spokane Police Department

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., 452 F.3d 1097, 1100 (9th Cir.2006). We affirm.

The district court properly denied as untimely Burton’s motion to vacate the judgment under Rule 60(b)(2) or (3) because it 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 entry of judgment); 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).

To the extent that Burton’s motion falls within Rule 60(b)(6), the district court did not abuse its discretion when it denied Burton’s motion because his almost two-year delay before…