Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1986)

MEMORANDUM^** 

Lynn Bernard Milner, pro se, appeals the district court's denial of his motion for reconsideration of the court's dismissal of his section 1983 complaint against the County Clerks of Santa Clara County. His complaint alleged a violation of his right to due process because the clerks failed to timely provide him, or his trial attorney, a copy of the official clerk's and reporter's transcript in the criminal case where he was sentenced to death. The district court dismissed his section 1983 complaint because: (1) the California Rule of Court, at the time in question, required only that a record be sent to the defendant or his attorney; it did not require that both receive a copy or that the attorney be the trial attorney; (2) the transcript was in fact sent in a timely fashion to Milner's appellate counsel; and (3) therefore, there was no legal basis for the assertion that failure to provide Milner or his trial lawyer with a copy of the transcript violated Milner's civil rights. Milner moved for reconsideration pursuant to Federal Rule of Civil Procedure 60 and the district court denied that motion. We affirm.

On appeal Milner argues the merits of the district court's dismissal of his civil rights complaint. His notice of appeal, however, was untimely to bring the merits of that judgment up for review.

Federal Rule of Appellate Procedure 4(a) (1) requires a notice of appeal be filed within 30 days after the entry of judgment. A motion under Rule 60(b) does not toll the time in which a party must file an appeal. Browder v. Director, Dept. of Corrections, 434 U.S. 257, 263 n. 7 (1978). The district court dismissed the complaint on November 25, 1985. Although the district court granted an extension of 30 days in which Milner could appeal, until January 24, 1986, his notice of appeal filed on May 1, 1986 was untimely.¹  Therefore, this court does not have jurisdiction to review the merits of the order of dismissal. Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1987).

Milner's notice of appeal, however, was timely to confer jurisdiction in this court for review of the April 11, 1986, denial of his motion for reconsideration. Milner's challenge to the denial of the motion for reconsideration is without merit.

The denial of a Rule 60 motion is reviewed for an abuse of discretion. Browder, 434 U.S. at 263 n. 7; Swimmer, 811 F.2d at 1345. Under Rule 60(b), a party may move for relief from judgment because: (1) of mistake, inadvertence, surprise, or excusable neglect; (2) of newly discovered evidence; (3) of fraud; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed, or it is not longer equitable that the judgment should have prospective application; or (6) of any other reason justifying relief. Rule 60(b), however, cannot be used as a substitute for a timely appeal. See Benny v. Pipes, 799 F.2d 489, 494 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir.), cert. denied, 108 S. Ct. 198 (1987); Pena v. Sequros La Comercial, S.A., 770 F.2d 811 814 (9th Cir. 1985).

In his motion for reconsideration, Milner argues with conclusions contained in the district court's order dismissing his complaint. His contentions do not raise any reason for relief cognizable under Rule 60. Rather, they are of the type appropriate for appellate review of the judgment on the merits. See Plotkin v. Pac. Tel. & Tel., 688 F.2d 1291, 1293 (9th Cir. 1982) (legal error alone does not warrant Rule 60(b) relief).

Accordingly, the district court did not abuse its discretion by denying Milner's motion for reconsideration.

AFFIRMED