Payares v. Rodriguez

22 F. App'x 889

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 28, 2001
• Docket: No. 00-57169; D.C. No. CV-99-12863-TJH
• Status: Published

Opinion

MEMORANDUM

**

Robert Castillo Payares, a federal prisoner, appeals pro se the district court’s denial of his motion to reconsider its denial without prejudice of his application to proceed in forma pauperis. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We lack jurisdiction to address Payares’ contentions regarding the merits of the district court’s original entry of judgment because Payares both failed to file a notice of appeal within 60 days of entry of final judgment and failed to file a timely post-judgment tolling motion. See Fed. R.App.P. 4(a)(1)(B).

“An untimely motion for reconsideration is construed as a motion based on Fed. R.Civ.P. 60(b).” Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1463 n. 35 (9th Cir.1992). Denial of such a motion is reviewed for abuse of discretion. See Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Because Payares failed to demonstrate mistake, inadvertence, surprise, excusable neglect, newly-discovered evidence, or any other basis for relief from judgment, the district court did not abuse its discretion by denying his motion to reconsider. See id. at 1262-63.

AFFIRMED.

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