Derrick Billups v. Jean Howard, et al, No. 09-15571 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS AUG 27 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DERRICK LEE BILLUPS, Plaintiff - Appellant, No. 09-15571 D.C. No. 1:04-cv-05107-AWIDLB v. JEAN E. HOWARD; MATTHEW C. KRAMER, CMO; J. TENNISON, CC II, MEMORANDUM * Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding Submitted August 10, 2010 Before: ** HAWKINS, McKEOWN, and IKUTA, Circuit Judges. Derrick Billups, a California state prisoner, appeals pro se from the district court s order denying his motion to reconsider. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion a district court s decision * 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). denying a motion to reconsider. Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm. The district court determined that Billups failed to exhaust his administrative remedies prior to filing his complaint because his last administrative appeal was completed approximately six months after he filed his complaint in district court. See McKinney v. Carey, 311 F.3d 1198, 1199-1201 (9th Cir. 2002). The district court did not abuse its discretion in denying Billups s motion to reconsider because Billups did not present grounds warranting relief. See Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (on reconsideration, a party must demonstrate both injury and circumstances beyond his control that prevented him from proceeding with the action in a proper fashion (internal quotations and citation omitted)). AFFIRMED. 2 09-15571

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