Inginio Hernandez v. Renee Baker

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 2018
• Docket: 17-16384
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

INGINIO HERNANDEZ, No. 17-16384

Plaintiff-Appellant, D.C. No. 3:13-cv-00083-MMD- WGC v.

RENEE BAKER, Warden; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Nevada state prisoner Inginio Hernandez appeals pro se from the district

court’s order denying his post-judgment motion following a jury verdict in favor of

defendants in his 42 U.S.C. § 1983 action alleging cruel and unusual punishment.

We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of

* 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). discretion. Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255,

1262 (9th Cir. 1993). We affirm.

The district court did not did not abuse its discretion by denying

Hernandez’s post-judgment motion seeking reconsideration because Hernandez

failed to establish any basis for relief. See id. at 1262-63 (grounds for

reconsideration under Federal Rule of Civil Procedure 59(e) and 60(b)).

As to the merits of Hernandez’s underlying claims, we lack jurisdiction to

review the district court’s judgment. After the district court entered judgment

against Hernandez, Hernandez’s untimely motion did not toll the time to file an

appeal. Thus, his notice of appeal is untimely as to the judgment. See Fed. R.

App. P. 4(a)(1)(A), 4(a)(4) (notice of appeal must be filed within 30 days after

entry of judgment or order appealed from; Rule 60(b) motion must be filed within

28 days of judgment to have tolling effect); Fed. R. Civ. P. 59(b) (Rule 59(e)

motion must be filed within 28 days of judgment to have tolling effect); Stephanie-

Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.

2007) (“A timely notice of appeal is a non-waivable jurisdictional requirement.”).

Hernandez’s motion to file an oversized reply brief (Docket Entry No. 29) is

granted. The Clerk shall file the reply brief submitted on May 14, 2018.

AFFIRMED.

2 17-16384