FILED
NOT FOR PUBLICATION
JUL 7 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN BERNARD SHAY, No. 21-55620
Plaintiff-Appellant, D.C. No.
2:15-cv-04607-CAS-RAO
v.
COUNTY OF LOS ANGELES; LOS MEMORANDUM*
ANGELES COUNTY SHERIFF’S
DEPARTMENT; CHRISTOPHER
DERRY, Deputy; DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted July 6, 2022 **
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
*
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).
Allen B. Shay appeals pro se from the district court’s order denying his
Federal Rule of Civil Procedure 60(d)(3) motion to vacate the district court’s
judgment for fraud on the court in his 42 U.S.C. § 19831 and California law2 action
against the County of Los Angeles, the Los Angeles County Sheriff’s Department,
and Deputy Christopher Derry (collectively, “Defendants”). We affirm.3
The district court did not abuse its discretion4 in denying Shay’s motion.
Shay alleged that Defendants’ failure to provide him with notice of their motion in
proceedings in the California Superior Court for the County of Los Angeles that
Shay be denied bail until a hearing could be convened to determine the source of
the bail funds (the “bail-hold” motion)5 and the subsequent hearing on the motion
constituted a fraud on the court. However, Shay cannot show that the judgment he
now seeks to vacate was obtained by fraud because the alleged fraud, if any, was
1
U.S. Const. amends. IV, XIV.
2
The Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1, and false
imprisonment.
3
We have jurisdiction to hear Shay’s appeal. See 28 U.S.C. § 1291; United
States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1167 (9th Cir. 2017).
Additionally, Shay’s motion to vacate the judgment for fraud on the district court
was timely. See Sierra Pac. Indus., Inc., 862 F.3d at 1167.
4
Sierra Pac. Indus., Inc., 862 F.3d at 1166–67.
5
See Cal. Penal Code § 1275.1.
2 21-55620
perpetrated against the state court in the state criminal prosecution, not against the
district court in this action. See Levander v. Prober (In re Levander), 180 F.3d
1114, 1119 (9th Cir. 1999). Moreover, contrary to Shay’s assertions, in this action
Jury Instruction Number 11 did not require the jury to accept as true any
purportedly false statements regarding the need for bail.
Additionally, Defendants’ failure to provide Shay with notice of the bail-
hold motion and hearing does not constitute “‘after-discovered fraud.’” Sierra
Pac. Indus., Inc., 862 F.3d at 1169; see id. at 1168–69. When he sought to have
the bail-hold lifted, Shay would have been aware, or at least “‘through due
diligence could have discovered,’” that Defendants failed to provide him with
notice. Id. at 1169.
Finally, Shay’s allegations are insufficient to establish fraud on the district
court. “Generally, non-disclosure by itself does not constitute fraud on the court.”
In re Levander, 180 F.3d at 1119. Shay has not shown an “‘unconscionable plan
or scheme’” that was “‘designed to improperly influence the [district] court.’”
Sierra Pac. Indus., Inc., 862 F.3d at 1168; see id. at 1171–72; cf. Pumphrey v. K.W.
Thompson Tool Co., 62 F.3d 1128, 1131–32 (9th Cir. 1995). In short, Shay has not
shown that, absent relief from the judgment, there would be “‘a grave miscarriage
3 21-55620
of justice.’” Sierra Pac. Indus., Inc., 862 F.3d at 1167; see also id. at 1168; United
States v. Est. of Stonehill, 660 F.3d 415, 452–53 (9th Cir. 2011).
To the extent that Shay argues that the district judge should have recused
herself, her failure to do so was not error, much less plain error.6 See Clemens v.
U.S. Dist. Ct., 428 F.3d 1175, 1178–79 (9th Cir. 2005) (per curiam); 28 U.S.C.
§ 455(a).
We do not consider arguments raised for the first time on appeal or matters
not specifically and distinctly raised and argued in the opening brief. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
We decline Defendants’ request to impose sanctions on Shay. See Fed. R.
App. P. 38; 28 U.S.C. § 1912; Gabor v. Frazer, 78 F.3d 459, 459–60 (9th Cir.
1996).
AFFIRMED.
6
United States v. Spangle, 626 F.3d 488, 495 (9th Cir. 2010).
4 21-55620