Duane Reed Moore v. ROBERT W. FOX, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUANE REED MOORE,
Plaintiff-Appellant,
v.
ROBERT W. FOX, Warden; et al.,
Defendants-Appellees.
No. 20-16479
D.C. No. 2:16-cv-02641-MCE-
DMC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges
California state prisoner Duane Reed Moore appeals pro se from the district
court’s post-judgment order denying his motions for relief from judgment under
Federal Rule of Civil Procedure 60(b) in his 42 U.S.C. § 1983 action alleging
deliberate indifference to his serious medical needs. We have jurisdiction under 28
* 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
JUN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 20-16479
U.S.C. § 1291. We review for an abuse of discretion. United States v. Asarco Inc.,
430 F.3d 972, 978 (9th Cir. 2005). We reverse and remand.
The district court denied Moore’s second and third requests for
reconsideration. However, Moore demonstrated in these motions that he
experienced attorney abandonment, which can “constitute the extraordinary
circumstances necessary to justify relief under Rule 60(b)(6).” Foley v. Biter, 793
F.3d 998, 1002 (9th Cir. 2015). We therefore remand to the district court to
provide Moore with an opportunity to notify the court as to whether he is
proceeding pro se or substituting in another attorney, and an opportunity to serve
defendants.
We do not consider the district court’s order dismissing Moore’s action for
failure to comply with a court order or its order denying Moore’s first motion for
reconsideration because Moore did not timely appeal from those orders. See Fed.
R. App. P. 4(a) (notice of appeal must be filed within 30 days of the entry of
judgment or the denial of certain post-judgment motions); Tillman v. Ass’n of
Apartment Owners of Ewa Apartments, 234 F.3d 1087, 1089 (9th Cir. 2000) (“The
court of appeals lacks jurisdiction to decide an appeal if the notice of appeal is not
timely filed.”).
REVERSED and REMANDED.

-- 2 of 2 --