Willie T. Smith v. Drugh Waggener

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIE T. SMITH,
Plaintiff-Appellant,
v.
DRUGH WAGGENER,
Defendant-Appellee,
and
C. KERNER; et al.,
Defendants.
No. 20-15891
D.C. No. 3:15-cv-00373-RCJ-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Nevada state prisoner Willie T. Smith appeals from the district court’s order
* 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).
FILED
JAN 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denying his motion to vacate the judgment in his 42 U.S.C. § 1983 action alleging
constitutional violations arising from the seizure of his mail. We have jurisdiction
under 28 U.S.C. § 1291. We review for an abuse of discretion. Sch. Dist. No. 1J
Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We
may affirm on any basis supported by the record, Thompson v. Paul, 547 F.3d
1055, 1058-59 (9th Cir. 2008), and we affirm.
Denial of Smith’s Federal Rule of Civil Procedure 60(b)(3) motion was not
an abuse of discretion because Smith failed to demonstrate any basis for relief. See
Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th Cir. 2004) (to prevail under
Rule 60(b)(3), the “moving party must prove by clear and convincing evidence”
that judgment was obtained through fraud, misrepresentation, or other misconduct
that was not “discoverable by due diligence before or during the proceedings”
(citation and internal quotation marks omitted)).
The district court did not abuse its discretion in denying Smith’s motion for
sanctions because Smith failed to establish grounds for sanctions. See Christian v.
Mattel, Inc., 286 F.3d 1118, 1126-27 (9th Cir. 2002) (standard of review and
grounds for sanctions under Rule 11).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Smith’s opposed motion for appointment of counsel (Docket Entry No. 27)

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is denied. Smith’s motion to file a late brief (Docket Entry No. 37) is granted. The
Clerk will file the reply brief received at Docket Entry No. 36.
Waggener’s request that this court admonish Smith against further filings,
set forth in the answering brief, is denied.
AFFIRMED.

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