                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 07 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOHN ARMSTRONG; et al.,                          No. 07-17342

              Plaintiffs - Appellees,            D.C. No. CV-94-02307-CW

ROBERT HECKER and RALPH
COLEMAN,                                         MEMORANDUM *

              Plaintiff-intervenors -
Appellees,

  v.

ARNOLD SCHWARZENEGGER; et al.,

              Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                      Argued and Submitted January 28, 2010
                               Pasadena, California

Before: REINHARDT, TASHIMA and BERZON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Appellants challenge a minute order denying their motion to reconsider an

order requiring, among other things, that they provide certain of their staff

members individualized access to their computerized system for tracking disabled

prisoners and parolees. The facts underlying this particular appeal are well known

to the parties, as are the facts of the decade and a half litigation between appellants

and appellees, a class of disabled prisoners and parolees within the California state

penal system.

      As a preliminary matter, this appeal is not moot. Although appellants have

already provided the access required by the order underlying the motion for

reconsideration, we could nonetheless grant them “effective relief” by holding in

their favor and allowing them to remove that access for some of their employees.

See EEOC v. Fed. Express Corp., 558 F.3d 842, 846-47 (9th Cir. 2009).

      There are, however, no valid grounds for granting appellants such relief.

This court “review[s] the denial of a motion for reconsideration for abuse of

discretion.” Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1100 (9th

Cir.2004). It is firmly established that “[a]n appeal from a denial of a Rule 60(b)

motion brings up only the denial of the motion for review, not the merits of the

underlying judgment.” Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).




                                           2
      Appellants’ primary contention is that in the underlying order the district

court did not make the need-narrowness-intrusiveness findings that the Prison

Litigation Reform Act requires, and that failure to correct such a “clear” error of

law on the motion for reconsideration constituted an abuse of discretion. See

McDowell v. Calderon, 197 F.3d 1253,1255 & n.4 (9th Cir. 1999). Appellants,

however, failed to raise the need-narrowness-intrusiveness findings issue in their

motion for reconsideration. The district court cannot abuse its discretion by failing

to grant reconsideration on a ground that was not raised before it. Moreover, even

had appellants raised the issue properly, the district court made the necessary

findings in the underlying order. See Armstrong v. Schwarzenegger, No. 4:94-cv-

02307 (N.D. Cal. Sept. 11, 2007) at 22. Accordingly, there was no error in the

underlying order for the district court to correct on the motion for reconsideration.

      Appellants’ contention that the district court did not enter the order for the

purpose of correcting violations of plaintiffs’ federal rights is similarly without

merit. Again, appellants failed to assert this ground in their motion for

reconsideration. Additionally, the district court made clear that the relief it ordered

“was necessary to correct the violation of federal rights,” see id., and, moreover,

the impetus for the order was appellants’ failure to comply with prior orders, which

the court had previously described as the narrowest, least intrusive means


                                           3
necessary to correct violations of the Americans with Disabilities Act. That

appellants did less than what the court had identified as the least that was necessary

to bring them into compliance with federal law was sufficient to justify the

underlying order.

      Appellants’ other contentions attack the underlying order without stating

specifically how the district court abused its discretion in failing to grant

reconsideration. These contentions are, accordingly, also without merit.1

      Appellees’ request for attorney’s fees is denied without prejudice to their

making a proper motion for attorney’s fees consistent with Circuit Rule 39-1.6.




AFFIRMED.




      1
          Appellees’ motion to supplement the appellate record is denied.

                                            4
