Michael Smith v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL SMITH,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
No. 23-55030
D.C. No. 3:22-cv-00798-DMS-BGS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted March 26, 2024**
Before: TASHIMA, SILVERMAN, and KOH, Circuit Judges.
Michael Smith appeals pro se from the district court’s judgment dismissing
his action brought under Federal Rule of Civil Procedure 60(d)(3) seeking to
collaterally attack his criminal conviction entered in the Eastern District of
Kentucky. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse
* 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). Smith’s request for oral
argument, set forth in the reply brief, is denied.
FILED
MAR 29 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of discretion. Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th
Cir. 2003). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Dismissal of Smith’s action against the United States was proper because
Smith failed to allege facts sufficient to show an explicit waiver of sovereign
immunity. See Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990) (“Absent its
consent to suit, an action against the United States must be dismissed.”);
Cominotto v. United States, 802 F.2d 1127, 1129 (9th Cir. 1986) (“Waiver of
immunity must be demonstrated by the party suing the United States.”), abrogated
on other grounds by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
AFFIRMED.

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