                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

PHILIP HUGHES,                                  No. 16-16714

                Plaintiff-Appellant,            D.C. No. 3:14-cv-00626-RCJ-VPC

 v.
                                                MEMORANDUM*
ISIDRO BACA, Warden; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Nevada state prisoner Philip Hughes appeals pro se the district court’s order

denying his Federal Rule of Civil Procedure 60(b)(6) motion for relief from the

court’s judgment dismissing Hughes’s 42 U.S.C. § 1983 action alleging

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review



      *
             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).
for abuse of discretion an order denying a Rule 60(b) motion, Washington v. Ryan,

833 F.3d 1087, 1091 (9th Cir. 2016) (en banc), and we affirm.

      To the extent that Hughes contends that the district court abused its

discretion by declining to reopen the time to file an appeal, the district court did

not abuse its discretion because Hughes’s Rule 60(b)(6) motion was filed more

than 180 days after the entry of judgment. See Fed. R. App. P. 4(a)(6) (district

court may reopen time to file appeal if moving party did not receive notice of entry

of judgment within 21 days after entry, “the motion is filed within 180 days after

the judgment . . . is entered or within 14 days after the moving party receives

notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is

earlier,” and no party would be prejudiced (emphasis added)); Washington, 833

F.3d at 1093 (stating that Fed. R. App. P. 4(a)(6) “authorizes an ‘outer time limit’

of 180 days to move for an extension of time to file an appeal . . . [and a] district

court may not otherwise relieve parties from failing to file a timely appeal due

solely to lack of notice of judgment”); see also In re Stein, 197 F.3d 421, 424 (9th

Cir. 1999) (explaining that Fed. R. App. P. 4(a)(6) requires parties “to discover the

entry [of judgment], with or without a notice” and “[f]ailing that, they lose the

right to appeal”).

      To the extent that Hughes contends that the district court abused its

discretion by denying Hughes’s Rule 60(b)(6) motion because the complaint stated


                                           2                                    16-16714
due process and Eighth Amendment deliberate indifference claims, the district

court did not abuse its discretion because Hughes failed to establish any basis for

such relief. See Fed. R. Civ. P. 60(b)(6); Harvest v. Castro, 531 F.3d 737, 749 (9th

Cir. 2008) (stating that Rule 60(b)(6) “is to be used sparingly as an equitable

remedy to prevent manifest injustice” (citation and internal quotation marks

omitted)).

      The district court did not err in failing to recuse itself sua sponte because

Hughes failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;

Noli v. Comm’r., 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to

the judge . . . a party will bear a greater burden on appeal in demonstrating that the

judge . . . [erred] in failing to grant recusal under section 455.” (alteration in

original, citation and internal quotation marks omitted)).

      AFFIRMED.




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