ALD-414                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-2807
                                      ____________

                              NATHANIEL L. ADDERLY,
                                                 Appellant

                                             v.

             CPL. WILSON; TPR. CONNORS; COUNSELOR RICHARD
              KELLER; R.S. CHERYL ZALANDONIS; M.J. TUPPER
                     __________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 3-13-cv-01945)
                             District Judge: Edwin M. Kosik
                       __________________________________

           Submitted for Possible Dismissal under 28 U.S.C. § 1915(e)(2) or
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 September 15, 2016

             Before: AMBRO, SHWARTZ and NYGAARD, Circuit Judges

                           (Opinion filed: September 16, 2016)
                                     ____________

                                       OPINION*
                                      ____________


PER CURIAM

       Nathaniel L. Adderly appeals from orders of the District Court dismissing his

complaint and denying his motion for reconsideration. For the reasons that follow, we


* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
will dismiss the appeal in part for lack of appellate jurisdiction and summarily affirm to

the extent of our jurisdiction.

       Adderly, an inmate confined at the State Correctional Institution in Houtzdale,

Pennsylvania, filed a civil rights action, 42 U.S.C. § 1983, in the United States District

Court for the Middle District of Pennsylvania. He sought damages, alleging violations of

his civil rights in connection with an allegedly unlawful prosecution and conviction for

failure to comply with state sex offender registration requirements, see 18 Pa. Cons. Stat.

Ann. § 4915.1(a)(1), and certain incidents of prison life. The defendants moved to

dismiss the complaint, Fed. R. Civ. P 12(b)(6), and, in an order entered on July 29, 2015,

the District Court dismissed the complaint as to all defendants. In pertinent part, the

District Court concluded that Adderly’s claims either were barred by Heck’s favorable

termination rule, Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), or meritless, see

Griffin v. Vaughn, 112 F.3d 703, 705-07 (3d Cir. 1997).

       On September 8, 2015, Adderly filed a motion for “reconsideration/reargument

and/or to alter or amend judgment,” which was postmarked September 2, 2015. After the

motion was fully briefed, the District Court, in an order entered on May 25, 2016, denied

it.

       On June 13, 2016, Adderly filed a notice of appeal, seeking review of both the

order dismissing his complaint and the order denying reconsideration. Our Clerk granted

him leave to appeal in forma pauperis and advised him that the appeal was subject to

summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary action under Third Cir.

LAR 27.4 and I.O.P. 10.6.

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       We will dismiss the appeal in part for lack of appellate jurisdiction and summarily

affirm to the extent of our jurisdiction. The taking of an appeal within the prescribed

time is mandatory and jurisdictional. Bowles v. Russell, 551 U.S. 205, 209 (2007).

Final judgment was entered on July 29, 2015. Adderly had 30 days to appeal that order

under Federal Rule of Appellate Procedure 4(a)(1)(A) and 28 U.S.C. § 2107(a). He filed

his notice of appeal on June 13, 2016, well beyond the 30-day deadline. Federal Rule of

Appellate Procedure 4(a)(4)(A)(iv) tolls the running of the appeal period only when a

motion for reconsideration pursuant to Fed. R. Civ. P. 59(e) is filed within 28 days after

entry of the judgment. Lizardo v. United States, 619 F.3d 273, 278-79 (3d Cir. 2010).

Adderly’s motion for “reconsideration/reargument and/or to alter or amend judgment”

was not postmarked within 28 days of the District Court’s order dismissing the

complaint. See generally Fed. R. Civ. P. 6(b)(2) (“When an act may or must be done

within a specified time, the court may, for good cause, extend the time,” except that a

“court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and

(e), and 60(b).”). Accordingly, it did not toll the time for taking an appeal and we thus

lack jurisdiction to review the District Court’s order entered on July 29, 2015.

       In his motion for “reconsideration/reargument and/or to alter or amend judgment,”

Adderly argued that the District Court overlooked his retaliation claim, and he submitted

new evidence -- a transcript -- in support of this claim. Rule 60(b)(2) provides that “the

court may relieve a party … from a final judgment” where the movant has “newly

discovered evidence that, with reasonable diligence, could not have been discovered in

time to move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). We will treat

                                             3
Adderly’s motion as a Rule 60(b) motion insofar as it presented grounds cognizable

under Rule 60. See Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir.2002). Adderly’s

notice of appeal was timely filed within 30 days of the order entered on May 25, 2016.

We thus have jurisdiction to review that order. 28 U.S.C. 1291; Fed. R. App. P.

4(a)(1)(A).

       We will summarily affirm the order of the District Court denying Adderly’s

motion for “reconsideration/reargument and/or to alter or amend judgment” because no

substantial question is presented, Third Circuit LAR 27.4 and I.O.P. 10.6. We review the

denial of a Rule 60(b) motion for an abuse of discretion. See Reform Party of Allegheny

County v. Allegheny County Dep’t of Elections, 174 F.3d 305, 311 (3d Cir. 1999) (en

banc). The District Court abuses its discretion when it bases its decision “upon a clearly

erroneous finding of fact, an erroneous conclusion of law, or an improper application of

law to fact.” Id. (internal quotation marks and citation omitted). In denying the motion,

the District Court concluded that Adderly failed to present any new evidence, facts, or

issues which were not previously in existence and available. The Court declined to grant

Adderly relief from the judgment because he merely reasserted his same arguments and

offered transcripts that were in existence and previously available to, but not used by,

him. After careful review of the record, we hold that the District Court, in reaching this

conclusion, did not abuse its discretion.

       For the foregoing reasons, we will dismiss the appeal in part for lack of appellate

jurisdiction and summarily affirm the order of the District Court denying Adderly’s

motion for “reconsideration/reargument and/or to alter or amend judgment.

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