Unpublished Disposition, 931 F.2d 59 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 59 (9th Cir. 1990)

Michael Henry FERDIK, Plaintiff-Appellant,v.Bill S.O. RICHARDSON, Former Sheriff, Joe Bonzelet, Sheriff,of Mojave County, Jerry Holt, Jim Schultz, JackRose, Defendants-Appellees.

No. 90-15196.

United States Court of Appeals, Ninth Circuit.

Submitted April 8, 1991.* Decided April 22, 1991.

Before PREGERSON, NOONAN and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Michael Henry Ferdik filed a pro se civil rights action under 42 U.S.C. § 1983 against a number of Arizona Sheriff Department officials. The district court entered judgment in favor of the defendants. We affirm.

* Procedural Background

In this action, Ferdik alleges that Arizona Sheriff Department officials conspired with prison officials to (1) deny him prison mail, (2) force his attorney to withdraw, and (3) subject him to unsafe and unsanitary prison conditions. On October 4, 1989, the district court entered judgment in favor of defendants. On October 31, 1989, Ferdik moved for reconsideration. The district court denied the motion on December 19, 1989. Ferdik filed a notice of appeal on January 5, 1990.

II

DISCUSSION

Because Ferdik's notice of appeal was filed more than 30 days after entry of judgment, it was untimely under Fed. R. App. P. 4(a). Compliance with the 30-day time limit is mandatory and jurisdictional. Browder v. Director, Dep't. of Corrections, 434 U.S. 257, 264, 98 S. Ct. 556, 560 (1978). "Failure to timely file a notice of appeal must result in dismissal for lack of appellate jurisdiction." Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984).

A timely motion filed under Fed. R. Civ. P. 59(e) tolls the running of the time for filing the notice of appeal. E.g., Browder, 434 U.S. at 264, 98 S. Ct. at 561. Although not labeled as such, Ferdik's motion for reconsideration is most reasonably construed as a Rule 59(e) motion. See Scott, 739 F.2d at 1466-67. Because Ferdik did not file his motion within 10 days of the entry of judgment, however, the filing of his motion did not toll the 30-day notice of appeal filing period. Browder, 434 U.S. at 264-65, 98 S. Ct. at 561; Cel-A-Pak v. California Agric. Labor Relations Bd., 680 F.2d 664, 666 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S. Ct. 491 (1982). As no timely appeal was taken from the underlying judgment, this court has no jurisdiction to review the judgment.

If Ferdik's motion for reconsideration is considered a Rule 59(e) motion, the district court properly denied Ferdik's untimely motion. Scott, 739 F.2d at 1467. Alternatively, Ferdik's motion for reconsideration may be viewed as a Fed. R. Civ. P. 60(b) motion. His notice of appeal would then be timely as an appeal from the order denying that motion, but the appeal does not bring up the underlying judgment for review. We review for abuse of discretion only the district court's order denying Ferdik's motion. Cel-A-Pak, 680 F.2d at 668.

We hold that the district court did not abuse its discretion in denying Ferdik's motion for reconsideration. Ferdik points to no new matters that would entitle him to relief from judgment. Rather, Ferdik merely argues the merits of his claims; he does not specifically contest the court's order denying his motion for reconsideration. As discussed in part IIA, however, we do not review the merits of the underlying judgment.1 

III

CONCLUSION

To the extent Ferdik appeals the underlying judgment, his appeal is dismissed. The district court's order denying his motion for reconsideration is AFFIRMED.

 *

The panel unanimously found this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

This court acknowledges that we may review the merits of the underlying order if necessary to prevent a "substantial abuse of discretion or when the new issues raised on reconsideration are inextricably intertwined with the merits of the underlying order." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 n. 4 (9th Cir. 1984). But these unusual circumstances are not present here