Unpublished Disposition, 936 F.2d 578 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 936 F.2d 578 (9th Cir. 1989)

Tony A. LUCA, Plaintiff-Appellant,v.Jesse FIGUEROA, Kishman County Investigator, Defendants-Appellees.

No. 90-15719.

United States Court of Appeals, Ninth Circuit.

Submitted June 18, 1991.* Decided June 21, 1991.

Before BEEZER, WIGGINS and FERNANDEZ, Circuit Judges.


Tony A. Luca, an Arizona state prisoner, appeals pro se the district court's denial of his motion for reconsideration of its dismissal of his 42 U.S.C. § 1983 action. The district court denied the motion because Luca had failed to provide the court with new evidence or law warranting reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

Luca did not specify the ground for his motion for reconsideration, but relied on new case law as the basis for the motion. The district court correctly construed Luca's motion as a Federal Rule of Civil Procedure 60(b) motion. "A motion for relief from judgment based on a mistake (Rule 60(b) (1)), newly discovered evidence (Rule 60(b) (2)), or fraud (Rule 60(b) (3)) shall be made 'not more than one year after the judgment, order, or proceeding was entered or taken.' " Nevitt v. United States, 886 F.2d 1187, 1188 (9th Cir. 1989) (quoting Fed R.Civ.P. 60(b)). A motion based on Rule 60(b) (4) (judgment is void), Rule 60(b) (5) (judgment has been released, satisfied, or discharged, or prior judgment upon which it is based has been reversed or vacated), or Rule 60(b) (6) (any other reason justifying relief from the operation of the judgment) must be made "within a reasonable time". Fed. R. Civ. P. 60(b).

Here, the district court entered judgment in Luca's case on August 26, 1987. Luca filed his motion for reconsideration on December 25, 1989, more than two years after entry of judgment. Thus, to the extent Luca's motion for reconsideration was made pursuant to Rule 60(b) (1), (2), or (3), it was untimely, and the district court lacked jurisdiction to consider the merits of the motion. See Nevitt, 886 F.2d at 1188. Further, a change in the applicable law after a judgment has become final in all respects is not a sufficient basis for a motion pursuant to Rule 60(b) (4), (5), or (6). Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th Cir. 1989). Accordingly, the district court correctly denied Luca's motion for reconsideration.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3