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ARELLANO v. E. Ojeda, Correctional Sergeant, Defendant. (2021)

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United States Court of Appeals, Ninth Circuit.

Raul ARELLANO, Plaintiff-Appellant, v. L. HELMICK, Correctional Officer; et al., Defendants-Appellees, E. Ojeda, Correctional Sergeant, Defendant.

No. 20-55494

Decided: February 23, 2021

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges. Raul Arellano, Pro Se Martha P. Ehlenbach, Esquire, Deputy Attorney General, AGCA-Office of the California Attorney General, Sacramento, CA, for Defendants-Appellees


California state prisoner Raul Arellano appeals pro se from the district 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, 129 S.Ct. 808, 172 L.Ed.2d 565 (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)).

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).


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