Galy L. Liggett, Plaintiff-appellant, v. Margret Furchtenicht, Patricia Mcclellan, Defendants-appellees, 46 F.3d 1151 (10th Cir. 1995)

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 cause is therefore ordered submitted without oral argument.

Gary L. Liggett filed a complaint under 42 U.S.C.1983 alleging violation of his due process rights during administrative proceedings in discipline while he was in custody of the Colorado Department of Corrections. On April 7, 1994, the magistrate judge to whom the case was referred recommended the complaint be dismissed under 28 U.S.C.1915(d) and advised Mr. Liggett he had ten days after the date of service of the recommendation to file any objection to the recommendation. No objection having been filed previously, on June 3, 1994, the district court entered an order dismissing the action.

On June 6, 1994, Mr. Liggett filed an objection to the recommendation, and on June 27, 1994, Mr. Liggett filed a motion for reconsideration of the dismissal. No notice of appeal from the order of dismissal was filed. The district court immediately entered a terse order denying reconsideration apparently on the ground Mr. Liggett had failed to timely file his objection to the magistrate judge's recommendation in the first instance. Mr. Liggett has appealed.

The Federal Rules of Civil Procedure do not recognize a "motion to reconsider" such as that filed by Mr. Liggett. Because it was filed more than ten days after entry of the judgment of dismissal, we shall construe the motion as one for relief under Fed. R. Civ. P. 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 113 S. Ct. 89 (1992). As such, however, our jurisdiction in this appeal is only over the denial of the motion and not the merits of the dismissal of the complaint. Id. We review that denial for abuse of discretion. Id.

Because the filing of Mr. Liggett's objection to the recommendation of the magistrate judge was untimely and not even filed until after entry of the order of dismissal, even though entry of that order was delayed for almost two months, we see no abuse of discretion by the district court in failing to grant Rule 60(b) relief. Moreover, we see no exceptional circumstances in this case that would justify such relief. Id. at 1244.

AFFIRMED.