Opinion
No. 14-16659
10-22-2015
RODERICK HIMES, Plaintiff - Appellant, v. CONNIE GIPSON, Warden; et al., Defendants - Appellees.
NOT FOR PUBLICATION
D.C. No. 1:13-cv-00021-DLB MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Himes consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).
Roderick Himes, a California state prisoner, appeals pro se from the district court's order denying his motion for relief from judgment in his 42 U.S.C. § 1983 action alleging denial of access to the courts. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Sch. Dist. No. 1J Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), and we affirm.
The district court did not abuse its discretion in denying Himes's motion for relief from judgment under Federal Rule of Civil Procedure 60(b) because Himes failed to demonstrate any basis for relief. See id. at 1263 (grounds for reconsideration under Rule 60); see also Christopher v. Harbury, 536 U.S. 403, 414-16 (2002) (discussing elements of a backward-looking access-to-courts claim); Lewis v. Casey, 518 U.S. 343, 348-53 (1996) (access-to-courts claim requires showing that the defendant's conduct caused actual injury to a non-frivolous legal claim).
We do not consider Himes's challenge to the underlying order dismissing the first amended complaint without leave to amend because Himes failed to file a timely notice of appeal or a timely post-judgment tolling motion. See Fed. R. App. P. 4(a)(1)(A), (a)(4)(A). We reject Himes's contention, set forth in his submission filed on August 28, 2015, that this result is altered by the mailbox rule. Himes's request for a ruling on his August 28, 2015 motion, filed on September 15, 2015, is granted.
AFFIRMED.