FILED
NOT FOR PUBLICATION NOV 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY REGAN, No. 08-16042
Plaintiff - Appellant, D.C. No. CV-07-00029 JMS-BMK
v.
MEMORANDUM *
DEPARTMENT OF PUBLIC SAFETY,
State of Hawaii, et al.
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted November 5, 2010 **
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and KORMAN, *** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, United States District Judge, Eastern
District of New York, sitting by designation.
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We assume familiarity with the procedural background underlying this case.
Briefly, while incarcerated at the Halawa Correctional Facility in Aiea, Hawaii,
Anthony Regan filed a prisoner civil rights complaint pursuant to 42 U.S.C. § 1983.
Proceeding pro se and in forma pauperis, Regan’s complaint alleged various
constitutional violations and sought recovery on eighteen different claims. After a
number of procedural motions and orders, on January 10, 2008, the district court
dismissed the complaint with prejudice for failure to state a claim pursuant to 28
U.S.C. §§ 1915(e)(2), 1915A(b).
On January 24, 2008, Regan filed a motion for “reconsideration of January 9
(sic) dismissal of Plaintiff’s Civil Rights action,” pursuant to Federal Rule of Civil
Procedure 59, which was denied on February 11, 2008. Subsequently, on February
22, 2008, Regan filed a motion for “relief from the judgment of dismissal entered on
January 10, 2008.” The motion, which invoked Federal Rule of Civil Procedure 60,
was denied on March 24, 2008.
On April 21, 2008, Regan filed a notice of appeal, which stated that:
Plaintiff here-by (sic) appeals the district court’s March 24,
2008 “Order denying motion for relief from judgment”
which plaintiff received on March 28, 2008 and is
connected to the court’s January 9, 2008 Order dismissing
plaintiff’s complaint with prejudice, which he also appeals
to the Ninth Circuit Court of Appeals.
The notice of appeal “also mentions, briefly” an order, which had set aside a default
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judgment against the defendants much earlier in the proceedings, and alleges ex parte
conferences that were not recorded.
While the notice of appeal expressly states that Regan was appealing from the
district court’s March 24, 2008 order denying his Rule 60 motion, Regan’s brief does
not set forth any reasons why that order should be reversed. Because arguments not
raised by a party in his opening brief are deemed waived, United States v. Kama, 394
F.3d 1236, 1238 (9th Cir. 2005); Wilcox v. Comm’r, 848 F.2d 1007, 1008 n.2 (9th Cir.
1988) (applying rule to pro se litigant), we decline to search the record for error.
Indeed, it seems clear that Regan’s real concern is the order and judgment dismissing
the complaint, which was entered on January 10, 2008. See Appellant’s Informal Br.
3-B (“Plaintiff’s action should not of (sic) been dismissed and he should of (sic) been
granted more time in which to file his [First Amended Complaint].”). Indeed, Regan’s
notice of appeal states that he is also appealing from the “court’s January 9, 2008
Order dismissing plaintiff’s complaint with prejudice.”
Nevertheless, the appeal from that order, which was actually entered on January
10, 2008, is time barred. Specifically, assuming that Regan’s first post-judgment
motion, which was filed on January 24, 2008, is treated as a motion to alter or amend
the January 10, 2008 judgment, it tolled the time for filing a notice of appeal until
February 11, 2008, when it was denied. Thus, Regan was required to file his notice
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of appeal from the January 10th dismissal by March 12, 2008, thirty days after his
motion for reconsideration was denied. Fed. R. App. P. 4(a)(1)(A). The notice of
appeal was not filed until April 21, 2008.
Nor did Regan’s motion for relief from the underlying judgment pursuant to
Federal Rule of Civil Procedure 60, which was filed on February 22, 2008, toll the
period for filing a notice of appeal from the order and judgment dismissing the
complaint on January 10, 2008, because under Federal Rule of Appellate Procedure
4(a)(4)(A)(vi), a motion under Rule 60 only tolls the period in which an appellant
must file the notice of appeal if that motion is filed within ten days after the original
judgment was entered. Moreover, Regan’s Rule 60 motion cannot be reclassified as
a Rule 59 motion with respect to the January 10, 2008 judgement and order, cf.
Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1986) abrogated on other grounds by
Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997), because it was
filed more than ten days after that order. Reclassifying it as a Rule 59 motion would
not toll the time for appeal with respect to the January 10th order and judgment
because it was not filed within ten days of that order. Fed. R. Civ. P. 59(e).
Because Regan failed to file his notice of appeal by March 12, 2008, some three
months after the January 10, 2008 order and judgment, his appeal from that judgment
and order is time barred. Moreover, his appeal from the denial of his Rule 60 motion
4
for relief would not, in any event, provide a basis for bringing the entire underlying
judgment up for review. Browder v. Director, Dep’t of Corr., 434 U.S. 257, 263 n.7
(1978); Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).
AFFIRMED
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