                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 15 1998
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 JOSE RIDEOUT,

          Plaintiff-Appellant,
 v.
                                                        No. 98-6231
 H.N. SCOTT, Warden, Joseph Harp
                                                    (D.C. No. 97-CV-41)
 Correctional Center, VICKIE
                                                        (W.D. Okla.)
 SHOECRAFT, Citizen of Lexington,
 Oklahoma, and is employed as Deputy
 Warden,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Plaintiff-Appellant José Rideout, a state prisoner in Oklahoma, appeals an

order of the district court denying his motion for relief from judgment under Fed.

R. Civ. P. 60(b). Mr. Rideout seeks relief from an order of the district court



      *
       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(f) and 10th Cir. R. 34.1.9.
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Judgment is not binding precedent, except under the doctrines of law of the case,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. 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.
adopting a magistrate judge’s recommendation to dismiss Mr. Rideout’s

underlying civil rights action against defendants. Although the district court

denied two prior attempts by Mr. Rideout to proceed IFP on grounds that his

appeals were not taken in good faith, (entry nos. 62, 65); see 28 U.S.C. §

1915(a)(3), Mr. Rideout also renews in this court a motion under 28 U.S.C. §

1915 for leave to proceed IFP. Because we find that Mr. Rideout’s appeal is

frivolous, we deny his motion to proceed IFP and dismiss his appeal.

      Mr. Rideout sued the defendants under 42 U.S.C. § 1983, alleging a

violation of his civil rights when he was sentenced to 15 days of disciplinary

segregation for refusing an order to move into a cell with another inmate. On

March 11, 1998, a magistrate judge recommended dismissal of his suit as

frivolous. (Entry no. 50.)

      Mr. Rideout acknowledges that he received a copy of the magistrate’s

Report and Recommendation on March 12, 1998. The report advised him of his

right to object no later than March 26, 1998, and that failure to object would

result in waiver of his right to appeal the report’s factual findings and legal

conclusions. On March 31, 1998, the district court noted that no objections had

been filed by either party, adopted the magistrate’s report and recommendation in

its entirety, and dismissed the suit with prejudice. (Entry no. 52.)




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      On April 20, 1998, Mr. Rideout filed a Rule 60(b) motion seeking relief

from the district court’s judgment, contending that his “conditions of

confinement” had prevented him from timely filing his objections. (Entry no. 57.)

The district court denied the motion, finding that none of Mr. Rideout’s “myriad

reasons” for failing to timely object provided a basis for relief under Rule 60(b).

Mr. Rideout now appeals, arguing again that his conditions of confinement

created “excusable neglect” for his delay. See Fed. R. Civ. P. 60(b)(1).

      Rule 60(b) motions are reviewed for abuse of discretion. Stubblefield v.

Windsor Capital Group, 74 F.3d 990, 994 (10th Cir. 1996). “[I]n determining

whether a district court abused its discretion, we are mindful that ‘[r]elief under

Rule 60(b) is extraordinary and may only be granted in exceptional

circumstances.” Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.

1996)(quoting Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909 F.2d

1437, 1440 (10th Cir. 1990)). “[O]nly if we find a complete absence of a

reasonable basis and are certain that the district court’s decision is wrong do we

reverse.” Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1147 (10th Cir. 1990).

Furthermore, review of a denial of a Rule 60(b) motion is confined only to review

of the order of denial and does not extend to review of the underlying judgment.

See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert.

denied, 506 U.S. 828 (1992).


                                         -3-
       Mr. Rideout states that a series of circumstances during March 12-26, 1998

hindered his ability to respond to the magistrate judge’s report. The specific

circumstances of Mr. Rideout’s confinement, while perhaps preventing him from

filing his substantive objections within the 15-day limit, did not entirely prevent

him from seeking leave of the district court for an extension of time. 1 In short,

Mr. Rideout’s failure to make timely objections to the magistrate judge’s report

and recommendation, or even to seek an extension of time to file his objections,

waived appellate review of the magistrate judge’s factual findings and legal

conclusions. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

As a result, his attempt to reopen the district court’s judgment dismissing his case

is without merit.

      For the reasons stated above, we DENY the motion to proceed IFP under 28

U.S.C. § 1915(e)(2)(B)(i) as frivolous. This appeal shall count as a strike

pursuant to 28 U.S.C. § 1915(g).

      Appeal DISMISSED.




      1
       Mr. Rideout clearly was aware that he could seek such an extension. The
record reflects that he sought – and received – such an extension (on grounds of
his conditions of confinement) for filing his opposition to defendants’ Motion to
Dismiss or for Summary Judgment. (Entry nos. 34, 37, 43.)

                                         -4-
The mandate shall issue forthwith.

                               ENTERED FOR THE COURT


                               David M. Ebel
                               Circuit Judge




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