TERRY MILLER V. CRAIG APKER, No. 15-15649 (9th Cir. 2016)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 5 2016 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT TERRY MICHAEL MILLER, Plaintiff-Appellant, v. U.S. COURT OF APPEALS No. 15-15649 D.C. No. 4:11-cv-00164-DCB MEMORANDUM* CRAIG APKER, Warden at US Penitentiary, et al., Defendants-Appellees. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Submitted July 26, 2016** Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges. Terry Michael Miller appeals pro se from the district court’s order denying his motion to reconsider the district court’s summary judgment in his action under the Federal Tort Claims Act, 28 U.S.C. § 1346, and Bivens v. Six Unknown Named * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993), and we affirm. The district court did not abuse its discretion by denying Miller’s motion to reconsider because Miller did not identify any grounds for relief from the judgment. See Fed. R. Civ. P. 59(e); Sch. Dist. No. 1J, 5 F.3d at 1263 (setting forth grounds for reconsideration). We lack jurisdiction to review Miller’s challenges to the district court’s January 12, 2015 order granting summary judgment because Miller did not file a timely notice of appeal or a timely post-judgment tolling motion. See Fed. R. App. P. 4(a)(1)A); Fed. R. App. P. 4(a)(4); Fed. R. Civ. P. 59(e) (motion must be filed within 28 days from entry of judgment); Fiester v. Turner, 783 F.2d 1474, 1475 (9th Cir. 1986) (untimely post-judgment motion does not suspend time to appeal from the judgment). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Miller’s request for appointment of counsel, filed on September 21, 2015, is 2 15-15649 denied. AFFIRMED. 3 15-15649

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