                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                           August 20, 2010

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 INGMAR GILLON,

        Plaintiff-Appellant,
                                                             No. 09-1571
 v.                                               (D.C. No. 06-cv-02383-MSK-MEH)
                                                              (D. Colo.)
 BUREAU OF PRISONS; FEDERAL
 CORRECTIONAL INSTITUTION-
 FLORENCE,

        Defendants-Appellees.


                               ORDER AND JUDGMENT*


Before KELLY, EBEL and LUCERO, Circuit Judges.


       This case began as a Freedom of Information Act (FOIA) action brought by

Plaintiff-Appellant Ingmar Gillon against Defendants-Appellees the Bureau of Prisons

and Federal Correctional Institution-Florence (“FCI-Florence”). The defendants

ultimately provided Gillon with the document that was the subject of his FOIA claim—a

       * After examining appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
staff sign-in log for the Special Housing Unit at FCI-Florence—and sought dismissal of

Gillon’s complaint for lack of subject matter jurisdiction on the ground that Gillon had

received the relief he sought. Gillon then sought to amend his complaint by adding

numerous claims against prison officials pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). On February 7, 2008, the

district court granted the defendants’ motion to dismiss and denied the motions Gillon

had filed seeking to amend his complaint by adding the Bivens claims. Over the next

year, Gillon filed three motions for reconsideration with the district court, before filing

the notice of appeal that has brought the matter to this court’s attention.

       At the outset, we must consider whether we have jurisdiction over Gillon’s appeal.

On February 7, 2008, the district court granted the defendants’ motion to dismiss, denied

Gillon’s motions to amend the complaint, and directed the Clerk of Court to close the

case. (Doc. No. 89 at 3.) However, judgment was never entered on a separate document,

as required by Federal Rule of Civil Procedure 58(a); accordingly, the judgment was

deemed entered 150 days after February 7, or July 7, 2008.1 See Fed. R. Civ. P.

58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii). Gillon’s notice of appeal was therefore due

sixty days later, or September 5, 2008. See Fed. R. App. P. 4(a)(1)(B). His notice of




1
  Technically, 150 days would have been July 6, 2008, but since July 6 was a Sunday,
judgment was deemed entered the next business day. See Fed. R. Civ. P. 6(a)(1)(C).


                                              2
appeal was not filed until December 20, 2009,2 and so, absent tolling, his notice of appeal

was untimely and we lack jurisdiction over his appeal. See Judd v. Univ. of N.M., 204

F.3d 1041, 1043 n.2 (10th Cir. 2000) (noting that “untimely notices of appeal [do] not

create jurisdiction in this court”).

       Therefore, we must consider whether Gillon’s motions to reconsider extended this

deadline so as to make his notice of appeal timely. After the district court’s February 7,

2008 order, Gillon filed, on February 22, a Motion to Alter or Amend Judgment, which

the district court construed as brought under Federal Rules of Civil Procedure 59 and 60.

The district court denied the motion on April 24, 2008. Ordinarily, “the time to file an

appeal runs for all parties from the entry of the order disposing of” a Rule 59 or Rule 60

motion, in which case Gillon’s notice of appeal would have been due sixty days after

April 24. Fed. R. App. P. 4(a)(4)(A). However, this case is in an unusual procedural

posture, wherein the “postjudgment” Rule 59/60 motion was filed and ruled upon before

judgment was deemed entered. We need not determine the precise effect this has on the

timing of the filing of a notice of appeal, however, because regardless of whether the

sixty-day period in which Gillon could file his notice of appeal began running on July 7

(when judgment was deemed entered pursuant to Rule 58(c)(2)(B)) or April 24 (when his

Motion to Alter or Amend Judgment was denied), his notice of appeal, filed in December

2
  The docket reflects a filing date of December 28, 2009, but the notice of appeal includes
a certification showing that Gillon deposited the notice in the mail at the penitentiary
where he is incarcerated on December 20. Under the prison mailbox rule, we treat
December 20 as the filing date. See Fed. R. App. P. 4(c)(1).

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of the following year, was untimely.

       Gillon filed a second Motion to Alter or Amend Judgment on May 8, 2008—still

before judgment was deemed entered under Rule 58(c)(2)(B)—which the district court

denied on March 4, 2009. However, the filing of a “second motion for reconsideration . .

. [does] not extend the time for filing a notice of appeal from the underlying . . . final

judgment.” See Ysais v. Richardson, 603 F.3d 1175, 1178 (10th Cir. 2010).

Furthermore, even if this motion did somehow toll the time period in which the notice of

appeal could be filed, the notice of appeal was still untimely, as it came more than sixty

days after the district court’s March 4, 2009 order.

       Finally, Gillon filed a third Motion to Alter or Amend Judgment on March 18,

2009, which the district court denied on October 22, 2009. For the same reasons that his

second Motion to Alter or Amend Judgment did not extend the time for filing a notice of

appeal from the underlying judgment, his third Motion to Alter or Amend also does not

permit him to appeal the underlying judgment. Therefore, we lack jurisdiction to review

the underlying February 7, 2008 order.

       Even though we do not have jurisdiction to review the district court’s underlying

order, we may still possess jurisdiction to review the district court’s denial of the Third

Motion to Alter or Amend Judgment because the notice of appeal was filed within sixty

days of the district court’s denial of that motion. Gillon styled his motion as one brought

pursuant to “Rules 59(e) or 60(b).” (Doc. No. 106 at 1.) Because this motion was made

more than ten days after the judgment was deemed entered, it was not proper under Rule
                                               4
59(e), and must therefore be treated as a Rule 60(b) motion. See Fed. R. Civ. P. 59(e)

(2009).3 Rule 60(b) permits a court to order relief

       for the following reasons:

       (1) mistake, inadvertence, surprise, or excusable neglect;

       (2) newly discovered evidence that, with reasonable diligence, could not
       have been discovered in time to move for a new trial under Rule 59(b);

       (3) fraud (whether previously called intrinsic or extrinsic),
       misrepresentation, or misconduct by an opposing party;

       (4) the judgment is void;

       (5) the judgment has been satisfied, released or discharged; it is based on an
       earlier judgment that has been reversed or vacated; or applying it
       prospectively is no longer equitable; or

       (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

       Gillon did not specify upon which ground he claimed an entitlement to relief

under Rule 60(b), and the district court also did not specify which subsection it thought

applied. Since Gillon is a pro se plaintiff, we construe his pleadings liberally. See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). His motion alleges that the district court

“misapprehen[ded]” one of his claims; that the district court committed “many specific


3
  Rule 59(e) has since been amended to permit a 59(e) motion to be filed up to twenty-
eight days after entry of the judgment. This amendment did not go into effect until
December 1, 2009, however, and so the prevailing rule at the time of Gillon’s motion was
ten days, although Gillon was well outside of either time frame.


                                               5
errors in the court’s decision to deny amending”; and that all three motions for

reconsideration “were only filed due to the court’s ‘misapprehension of the facts’ plus the

‘plaintiff’s position’ for the ‘need to correct clear error or prevent manifest injustice’ in

this civil case.” (Doc. No. 106 at 1-3 (quoting Servants of Paraclete v. Does, 204 F.3d

1005, 1012 (10th Cir. 2000).) Subsections two through five of Rule 60(b) clearly do not

apply to Gillon’s arguments in his third Motion to Amend or Alter Judgment; therefore,

we will consider whether we have jurisdiction over a claim made pursuant to Rule

60(b)(1) or 60(b)(6) and, if we do, whether Gillon is entitled to relief.

       “Rule 60(b) is not intended to be a substitute for a direct appeal.” Cashner v.

Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 1996). Accordingly, “when Rule

60(b)(1) is used to challenge a substantive ruling by the district court, we have required

that such a motion be filed within the time frame required for the filing of a notice of

appeal.” Id. at 578. Here, the Rule 60(b) motion alleges that the court made mistakes in

its ruling, and, as already noted, this third motion was not filed within the time frame

required for filing a notice of appeal. Therefore, insofar as this motion is brought under

Rule 60(b)(1), we do not have jurisdiction to consider the motion.

       No jurisdictional bar clearly prevents our review of Gillon’s motion to the extent it

raises a claim under Rule 60(b)(6), and so we proceed to consider that claim on its merits.

We review a district court’s decision to deny relief under Rule 60(b)(6) “for abuse of

discretion and will reverse the denial of a 60(b)(6) motion only if we find a complete

absence of a reasonable basis and are certain . . . that the decision is wrong.” Middle Rio
                                               6
Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1225 (10th Cir. 2002) (internal

quotations omitted). “Relief under Rule 60(b)(6) is appropriate when circumstances are

so unusual or compelling that extraordinary relief is warranted, or when it offends justice

to deny such relief.” Cashner, 98 F.3d at 580 (internal quotations omitted). The district

court denied relief, noting that Gillon offered only “conclusory allegations” that the court

misunderstood the facts and committed clear error and that a manifest injustice will result

without relief, arguments that the district court had previously addressed and dismissed.

(Doc. No. 111 at 4.) Having reviewed Gillon’s third Rule 60(b) motion, we have no

trouble concluding that the district court’s denial of Gillon’s motion has an eminently

reasonable basis, and nothing Gillon has argued below or to this court convinces us that

the district court’s decision was wrong. We thus affirm the district court’s denial of

Gillon’s Rule 60(b) motion, to the extent the motion was brought pursuant to Rule

60(b)(6).

       Therefore, we DISMISS Gillon’s appeal to the extent he appeals the underlying

judgment or claims that his Rule 60(b) motion should have been granted based on the

district court’s mistake, pursuant to Rule 60(b)(1). To the extent his appeal raises a Rule

60(b)(6) issue, we AFFIRM the district court’s denial of his third Motion to Alter or




                                             7
Amend Judgment. Gillon’s Motion for Leave to Proceed on Appeal Without Prepayment

of Costs or Fees is DENIED.


                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




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