                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      November 17, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 C HERYL R . R IC HA RD SO N ,

               Petitioner-A ppellant,                      No. 06-1207
          v.                                           District of Colorado
 SAFEW AY, IN C.,                              (D.C. No. 01-CV -2438-M SK-OES)

               Respondent-Appellee.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Cheryl Richardson appeals from the district court’s denial of her pro se

M otion To Review This Case Under Rule 60(b). W e review the district court’s

denial of the Rule 60(b) motion for abuse of discretion. Searles v. Dechant, 393

F.3d 1126, 1131 (10th Cir. 2004). “‘Given the lower court’s discretion, the

district court’s ruling is only reviewed to determine if a definite, clear, or

unmistakable error occurred below .’” Zurich N. Am. v. M atrix Serv., Inc., 426


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
F.3d 1281, 1289 (10th Cir. 2005) (quoting Cummings v. General M otors Corp.,

365 F.3d 944, 955 (10th Cir. 2004)). W e do not find a definite, clear or

unmistakable error, and therefore affirm.

      M s. Richardson originally filed suit against Safeway in 2001 alleging

gender and race discrimination under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000(e), and age discrimination under the Age Discrimination in

Employment Act, 29 U.S.C. § 621, and 42 U.S.C. § 1981. The case was

dismissed on September 12, 2003, after she failed to pay sanctions imposed by the

district court for failure to comply with Safew ay’s discovery requests. This Court

affirmed the dismissal on September 3, 2004. Richardson v. Safeway, 109 Fed

Appx, 275 (10th Cir. 2004).

      On April 3, 2006–more than two years later–M s. Richardson filed a Rule

60(b) motion based on the “defendant’s and court’s mistakes, inadvertence,

neglect, newly discovered evidence, fraud, etc.” The district court denied her

motion because she failed to cite any facts to support it and because her motion

was untimely.

      On appeal M s. Richardson reargues that the district court in the original

case erred in dismissing her claim. She also asserts that the district court violated

her civil rights by dismissing her case, though she states no facts or legal theory

to support this allegation. She lists a number of clerical mistakes in her court

documents as grounds for review of the judgment. However,

                                          -2-
      “Rule 60(b)(1) motions prem ised upon mistake are intended to provide
      relief to a party in only two instances: (1) when the party has made an
      excusable litigation mistake or an attorney in the litigation has acted
      without authority; or (2) when the judge has made a substantive mistake of
      law or fact in the final judgment or order.”

Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999). Even if the alleged

clerical errors were made, they are not sufficient to warrant relief from the

original judgment in this case.

      The district court did not abuse its discretion in finding M s. Richardson’s

Rule 60(b) motion to be unsupported by facts and untimely. Further, the district

court did not violate her constitutional rights by dismissing the case.

      W e also D EN Y M s. Richardson’s motion to proceed in forma pauperis on

appeal, and the appeal is DISM ISSED.

                                                Entered for the Court,

                                                M ichael W . M cConnell
                                                Circuit Judge




                                          -3-
