                                                                           FILED
                             NOT FOR PUBLICATION                             JUL 1 2011

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




                             FOR THE NINTH CIRCUIT



MARK S. MUSZYNSKI,                               No. 10-15808

               Plaintiff - Appellant,            D.C. No. 2:04-cv-00082-JAM-
                                                 GGH
  v.

D. L. RUNNELS; et al.,                           MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Mark S. Muszynski, a California state prisoner, appeals pro se from the

district court’s order denying his motion for reconsideration following a settlement

agreement in his 42 U.S.C. § 1983 action. To the extent we have jurisdiction, it is

under 28 U.S.C. § 1291. We review for an abuse of discretion the denial of a

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion to reconsider. Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5

F.3d 1255, 1262 (9th Cir. 1993). We affirm.

      The district court did not abuse its discretion by denying Muszynski’s

motion for reconsideration under Fed. R. Civ. P. 59 because Muszynski did not

present any newly discovered evidence, nor did he advance any other viable

ground for relief. See id. at 1263; Coastal Transfer Co. v. Toyota Motor Sales,

U.S.A., 833 F.2d 208, 212 (9th Cir. 1987) (evidence is not “newly discovered” if it

was in the moving party’s possession prior to judgment).

      We lack jurisdiction to consider Muszynski’s contentions concerning the

underlying merits of this action because it was voluntarily dismissed without

prejudice. See Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995) (voluntary

dismissal without prejudice is not appealable).

      We deny Muszynski’s request in his reply brief for appointment of counsel.

      AFFIRMED.




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