Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That They Are Not Precedent and Generally Should Not Be Cited Unless Relevant to Establishing the Doctrines of Res Judicata, Collateral Estoppel, the Law of the Case, or if the Opinion Has Persuasive Value on a Material Issue and No Published Opinion Would Serve As Well.willie Broadux, Appellant,dennis Wayne Allen, Plaintiff, v. Dick Moore; William Armontrout; Paul D. Caspari; Donna Kaybrown; Mary Brundage, Appellees, 998 F.2d 1018 (8th Cir. 1993)

Willie Lee Broadux¹  appeals from the district court's denial of his motion to vacate its dismissal of his 42 U.S.C. § 1983 action. We dismiss the appeal for lack of appellate jurisdiction.

Broadux, a black prisoner, claimed that defendant prison officials discriminated against him based on his race and defamed him. On December 23, 1992, the district court entered an order dismissing his complaint. In a December 28 letter, Broadux requested an extension of time to reply to the court's order. The court granted an extension until January 18, 1993.

On January 13, Broadux served a motion to vacate judgment under Federal Rules of Civil Procedure 59(e) and 60(b). He argued that the district court erred by not first obtaining a magistrate judge's report and giving him an opportunity to object, and by not allowing him to amend his complaint to specify racially discriminatory prison policies relevant to his claim. On March 1, the court denied Broadux's motion without comment, and on March 4, Broadux submitted his notice of appeal.

Rule 60(b) permits the district court, upon a party's motion made within a reasonable time, to grant relief from a final judgment on grounds of mistake, inadvertence, surprise, newly discovered evidence, fraud, or excusable neglect. A motion can be considered under Rule 60(b), however, only if it states grounds for relief available under the rule. Reyher v. Champion Int'l Corp., 975 F.2d 483, 488 (8th Cir. 1992). Broadux's motion could not have been construed as a Rule 60(b) motion because he did not allege any such grounds and did not make a showing of exceptional circumstances. See id.

The deadline for serving a Rule 59(e) motion in this case was January 8, 1993. Fed. R. Civ. P. 59(e), 6(a). The district court could not extend that time. See Townsend v. Terminal Packaging Co., 853 F.2d 623, 624 n.2 (8th Cir. 1988) (per curiam) (citing Fed. R. Civ. P. 6(b)). Therefore, the district court was without jurisdiction to rule on the motion served January 13 and, because Broadux's motion was out of time, the time for appealing to this court was not tolled. See Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir. 1988). Thus, Broadux's appeal is untimely, and we lack jurisdiction to review it. See Fed. R. App. P. 4(a) (1).

Accordingly, we dismiss.