Arnold Norman Fant, Plaintiff-appellant, v. D. Hubble, Individually and in His Official Capacity As Unitmanager; E.h. Anderson, Individually and in His Officialcapacity As Case Manager; K. (nmi) Sasek, Correctionalcounselor, Individually and in His Official Capacity Asmember of Adult Authority of U.S. Penitentiary, Leavenworth,ks, Defendants-appellees, 42 F.3d 1406 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Arnold Norman Fant appeals from the district court's order denying his motion to vacate judgment and his motion for abeyance. Plaintiff seeks relief from an order of the district court granting summary judgment on claims related to various prison mail privileges. The summary judgment order was entered June 22, 1993. Plaintiff filed his motion for abeyance and motion to vacate judgment in opposition to the order on July 16 and 19, 1993.

This court has specifically stated that whether a "motion to reconsider" is governed by Rule 59(e) or Rule 60(b) "depends essentially on the time a motion is served. If a motion is served within ten days of the rendition of judgment, the motion ordinarily will fall under Rule 59(e). If the motion is served after that time it falls under Rule 60(b)." Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (citations omitted), cert. denied, 113 S. Ct. 89 (1992). In this case, plaintiff did not file his motion until twenty-seven days after judgment; we therefore must treat his motion as a motion pursuant to Rule 60(b).

A Rule 60(b) motion does not toll the period in which a notice of appeal may be filed. Thus, plaintiff's notice of appeal from the district court's order granting summary judgment to defendants is untimely. Plaintiff may now appeal only the district court's denial of his Rule 60(b) motion. We find that the court correctly determined that no grounds existed for plaintiff's motion under Rule 60(b).

We grant in forma pauperis status on appeal to plaintiff and grant the certificate of probable cause. We dismiss plaintiff's appeal from the district court's order granting defendants summary judgment as untimely, and we affirm the district court's order denying plaintiff's motion to vacate judgment and his motion for abeyance. DISMISSED and AFFIRMED. The mandate shall issue forthwith.