                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 20 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



EARL WARNER,                                      No. 11-17794

               Plaintiff - Appellant,             D.C. No. 3:09-cv-04081-JW

  v.
                                                  MEMORANDUM *
MATTHEW CATE, et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Earl Warner, a California state prisoner, appeals pro se from the district

court’s order denying his motion for relief from judgment in his 42 U.S.C. § 1983

action alleging prison officials discriminated against him with regard to his work




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
assignment. We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion, Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1100

(9th Cir. 2006), and we affirm.

       The district court did not abuse its discretion in denying Warner’s motion for

relief from judgment because Warner failed to show that the mental breakdown he

suffered while the summary judgment motion was pending constituted a basis for

relief from the judgment. See Fed. R. Civ. P. 60(b); Sch. Dist. No. 1J, Multnomah

Cnty, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (setting forth grounds

justifying relief).

       We do not consider matters not specifically and distinctly raised and argued

in the opening brief, arguments and allegations raised for the first time on appeal.

See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

       AFFIRMED.




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