Raul Arellano v. L. Helmick

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 23 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RAUL ARELLANO, No. 20-55494

Plaintiff-Appellant, D.C. No. 3:14-cv-02401-MMA-

JLB

v.

L. HELMICK, Correctional Officer; et al., MEMORANDUM*

Defendants-Appellees,

and

E. OJEDA, Correctional Sergeant,

Defendant.

Appeal from the United States District Court

for the Southern District of California

Michael M. Anello, District Judge, Presiding

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

California state prisoner Raul Arellano appeals pro se from the district

*

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).

court’s orders denying his post-judgment motions in his 42 U.S.C. § 1983 action

alleging an Eighth Amendment claim. We have jurisdiction under 28 U.S.C.

§ 1291. We review for an abuse of discretion. Sch. Dist. No. 1J Multnomah Cty.,

Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.

The district court did not abuse its discretion in denying Arellano’s motions

for reconsideration because Arellano failed to demonstrate any basis for relief. See

id. at 1262-63 (setting forth grounds for reconsideration); see also Pearson v.

Callahan, 555 U.S. 223, 232 (2009) (“Qualified immunity is applicable unless the

official’s conduct violated a clearly established constitutional right.”); Horton v.

City of Santa Maria, 915 F.3d 592, 600 (9th Cir. 2019) (the inquiry as to whether a

constitutional right is clearly established must be undertaken “in light of the

specific context of the case, not as a broad general proposition” (citation and

internal quotation marks omitted)).

The district court did not abuse its discretion by denying Arellano’s motion

to reopen the action because Arellano did not demonstrate grounds for relief. See

Weeks v. Bayer, 246 F.3d 1231, 1234, 1236 (9th Cir. 2001) (standard of review for

motion to reopen; holding that an action is not properly reopened “absent highly

unusual circumstances, unless the district court is presented with newly discovered

evidence, committed clear error, or if there is an intervening change in the

controlling law” (citation and internal quotation marks omitted)).

2 20-55494

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

to strike defendants’ motion for summary judgment because Arellano did not

demonstrate grounds to strike the motion. See Hambleton Bros. Lumber Co. v.

Balkin Enters., Inc., 397 F.3d 1217, 1224 n.4 (9th Cir. 2005) (setting forth standard

of review).

We do not consider Arellano’s contentions regarding the underlying

judgment because Arellano failed to file a timely notice of appeal of that judgment.

See Fed. R. App. P. 4(a)(1)(A) (notice of appeal must be filed within 30 days of

judgment); Fed. R. App. P. 4(a)(4)(A)(iv), (vi) (post-judgment tolling motions

must be filed within 28 days of the entry of judgment); Swimmer v. IRS, 811 F.2d

1343, 1344-45 (9th Cir. 1987) (an untimely second motion for reconsideration does

not toll time to appeal underlying judgment), abrogated on other grounds by

Briones v. Riviera Hotel & Casino, 116 F.3d 379 (9th Cir. 1997).

AFFIRMED.

3 20-55494