                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-2559
                                ________________

Steven M. Jacob,                          *
                                          *
             Appellant,                   *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of Nebraska.
Harold Clarke,                            *
                                          *      [UNPUBLISHED]
             Appellee.                    *

                                ________________

                                Submitted: April 14, 2005
                                    Filed: April 22, 2005
                                ________________

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
                      ________________

PER CURIAM.

      On September 16, 2002, Steven M. Jacob, a prisoner in the Nebraska State
Penitentiary, filed a 42 U.S.C. § 1983 complaint in federal court against Harold
Clarke, Director of the Nebraska Department of Corrections. Jacob asserted an
Eighth Amendment violation from a new prison policy stating that inmates infected
with HIV, Hepatitis B, or Hepatitis C are not restricted from working in the prison
food service. Jacob sought an injunction to change the policy or to require mental
screening of infected inmates who work in food service to prevent acts of intentional
food contamination. Jacob also sought monetary damages to compensate him for the
cost of purchasing food from the canteen. The policy was instituted on May 14,
2002, and Jacob stopped eating food from the kitchen on July 18, 2002.

       Clarke moved to dismiss the complaint on the grounds that Jacob lacked
standing and the complaint failed to state a claim. See Fed. R. Civ. P. 12(b)(1), (6)
(2005). The district court1 granted the motion, concluding that Jacob has no standing
to challenge the policy because he has not alleged any actual injury or pervasive risk
of injury to set forth a colorable claim under § 1983 and that the complaint provides
no indication that Clarke acted with deliberate indifference to the risk of exposing
Jacob to a communicable disease. The district court filed its judgment dismissing the
complaint on August 7, 2003.

       Jacob filed a timely Rule 59(e) motion to alter or amend the judgment on
August 19, 2003, asserting that the court failed to liberally construe his complaint and
failed to allow him an opportunity to amend his complaint. Jacob sought to add to
the complaint a claim that although the prison has now implemented a policy of
psychological screening of infected inmates, the policy still permits even those
diagnosed with depression to work in food service, and that one infected inmate was
forced to work in the food service area against his wishes. Jacob also sought to add
the Warden and Associate Warden as defendants.

       On October 24, 2003, while this motion was pending, the district court ordered
Clarke to file a brief in response to the motion to alter or amend. Clarke did not file
a brief. On March 19, 2004, the district court denied Jacob's motion. After this
denial, Jacob had 30 days in which to file an appeal from the final judgment and the
order denying his Rule 59(e) motion to alter or amend. Jacob did not file a notice of
appeal at that time.


      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
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       Instead, Jacob filed another motion to alter or amend the judgment, citing both
Rule 59(e) and Rule 60(b), and again sought leave to amend the complaint. In this
motion, he alleged that he was now suffering elevated liver enzymes as shown in a
blood test, which he states is symptomatic of Hepatitis; pain in his abdomen; and a
gallbladder problem that may require surgery. On June 16, 2004, the district court
denied this second motion to alter or amend the judgment as an untimely Rule 59(e)
motion. Jacob filed a notice of appeal on June 21, 2004, intending to appeal the
district court's judgment, dated August 7, 2003, dismissing his complaint; the order,
dated March 19, 2004, denying his first Rule 59(e) motion; and the June 16, 2004,
order denying his second motion.

       We dismiss the appeal for lack of jurisdiction due to Jacob's failure to file a
timely notice of appeal. Generally, a notice of appeal must be filed within 30 days
after entry of the judgment or order that is the subject of the appeal. Fed. R. App. P.
4(a)(1)(A) (2005). This time for appeal may be tolled in certain instances. A
postjudgment motion under either Rule 59(e) or 60(b), filed within 10 days of
judgment, will toll the time for appeal. Fed. R. App. P. 4(a)(4)(A); United States v.
Duke, 50 F.3d 571, 574 (8th Cir.), cert. denied, 516 U.S. 885 (1995). Jacob
successfully tolled the appeal time by initially filing a timely Rule 59(e) motion
following the district court's dismissal of his complaint, but he then failed to file a
notice of appeal within 30 days of the district court's order of March 19, 2004,
disposing of the first Rule 59(e) motion.

      Jacob does not argue that his notice of appeal was timely as to the original
judgment, but he contends that the "unique circumstances" doctrine applies to save
his appeal. The equitable exception to timely filing, known as the unique
circumstances doctrine, is construed narrowly. See Charles v. Barnhart, 375 F.3d
777, 781-82 (8th Cir. 2004). This doctrine "permits an appeal from an untimely Rule
59(e) motion when the district court 'specifically assures' a party that its motion is
timely, and the party relies upon that assurance in failing to file a timely notice of

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appeal." Id. at 782 (emphasis supplied). We have also applied the doctrine to permit
a late appeal in circumstances where an action of the district court has "lulled [the
appellant] into inactivity." Sidebottom v. Delo, 46 F.3d 744, 750 (8th Cir.), cert.
denied, 516 U.S. 849 (1995). There are no "unique circumstances" here to render
timely either the second motion or the notice of appeal filed after the second motion.
Jacob contends that he delayed filing because Clarke did not comply with the district
court's order to file a brief while the first motion to alter or amend was pending. The
fact that the district court entered a final order without enforcing its request for a brief
is not the type of unique circumstance that could lull a litigant into failing to file a
timely appeal from the final order. No action by the district court indicated that its
order of March 19, 2004, was not final. Absent a timely notice of appeal or an
applicable exception, this court lacks jurisdiction over the original dismissal of
Jacob's complaint as well as over the denial of the first Rule 59(e) motion.

       The district court denied Jacob's second Rule 59(e) motion as untimely because
it was not brought within 10 days of the judgment. The district court had no
jurisdiction to entertain an untimely Rule 59(e) motion and, likewise, this court has
no jurisdiction to consider even a timely appeal from an untimely Rule 59(e) motion.
See Arnold v. Wood, 238 F.3d 992, 998 (8th Cir.), cert. denied, 534 U.S. 975 (2001);
Garrett v. United States, 195 F.3d 1032, 1033-34 (8th Cir. 1999).

       Jacob asserts that his second motion to alter or amend was in fact a timely Rule
60(b) motion based upon newly discovered evidence, which such motion may be filed
up to a year after the judgment. To the extent that Jacob's second motion was filed
under Rule 60(b), we have jurisdiction to consider only whether the district court
abused its discretion by denying Rule 60(b) relief. Arnold, 238 F.3d at 998. We note
that an appeal from the denial of a Rule 60(b) motion does not raise the underlying
judgment for our consideration but only the merits of the Rule 60(b) motion. Hunter
v. Underwood, 362 F.3d 468, 475 (8th Cir. 2004).



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       For the reasons that follow, we conclude that considering the second motion
to alter or amend as having been brought under Rule 60(b), the district court did not
abuse its discretion in denying relief. See United States v. Wells, 347 F.3d 280, 287
(8th Cir. 2003) (noting that it is well-settled that we may affirm the district court on
any basis that is supported by the record), cert. denied, 124 S. Ct. 2435 (2004). To
prevail on a Rule 60(b) motion based on newly discovered evidence, the evidence
must have been discovered after trial in the exercise of due diligence, the evidence
must be material and not merely cumulative or impeaching, and a new trial
considering the evidence would probably result in a different outcome. See
McCormack v. Citibank, N.A., 100 F.3d 532, 542 (8th Cir. 1996).

       Jacob's new evidence includes symptoms and medical reports dating three
months or more after the judgment of August 7, 2003.2 The reports do not include
any diagnosis that Jacob currently suffers from HIV, Hepatitis B, or Hepatitis C. The
new evidence demonstrates that Jacob has been suffering from abdominal pain, an
elevated liver enzyme level (which he states is symptomatic of Hepatitis), and a
gallbladder problem that may require surgery.

      2
        Clarke contends that the evidence offered was not "newly discovered" within
the meaning of Rule 60(b) because new evidence in this context must be evidence
that existed at the time of trial but was not discoverable at that time due to some
excusable reason. See Swope v. Siegel-Robert, Inc., 243 F.3d 486, 498 (8th Cir.)
(stating,"Rule 60(b) permits consideration only of facts which were in existence at the
time of trial"), cert. denied, 534 U.S. 887 (2001); see, e.g., Betterbox
Communications Ltd. v. BB Tech., Inc., 300 F.3d 325, 331 (3d Cir. 2002) (evidence
must have been in existence at the time of trial to be considered "newly discovered"
under Rule 60(b)); NLRB v. Jacob Decker & Sons, 569 F.2d 357, 364 (5th Cir. 1978)
(holding that "newly discovered" evidence must be that which existed at the time of
trial but for an excusable reason was not discoverable until later). Clarke argues that
Jacob's medical symptoms and records were not in existence until three months after
judgment, and therefore they do not qualify as "newly discovered" for Rule 60(b)
purposes. We express no views on this argument because of our conclusion that in
any event, the evidence would not have produced a different outcome.
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       A prisoner may state a cause of action under the Eighth Amendment by
alleging that prison officials have, with deliberate indifference, exposed him to a
serious, communicable disease that poses "an unreasonable risk of serious damage
to [the prisoner's] future health." See Helling v. McKinney, 509 U.S. 25, 33, 35
(1993). See also Glick v. Henderson, 855 F.2d 536, 539-40 (8th Cir. 1988) (noting
that a prisoner could state a colorable § 1983 claim by showing "that there is a
pervasive risk of harm to inmates of contracting" the communicable disease and
"there is a failure of prison officials to reasonably respond to that risk") (internal
quotations omitted). Jacob's new evidence does not sufficiently allege the existence
of a pervasive or unreasonable risk of contracting HIV, Hepatitis B, or Hepatitis C
from the food service workers. The evidence does not indicate that he has been
exposed to HIV, Hepatitis B, or Hepatitis C through the food supply or that there is
a serious risk of such exposure. Jacob's fears of possible infection from the prison
food service because of the prison's new policy remain speculative at best. Further,
the new evidence does not allege that the prison's policy is contrary to any particular
medical guidelines. See Glick, 855 F.2d at 539 (dismissing a complaint seeking
segregation of AIDS infected inmates, noting that the complaint did not state a claim
because "[t]here is not the slightest indication of what the officials are doing or not
doing that is not in accord with proper practice as established by medical guidelines,"
and the complaint was "based on unsubstantiated fears"). In fact, neither HIV nor
Hepatitis B or C are listed by the Department of Health and Human Services as
diseases that can be transmitted through handling the food supply. See 69 Fed. Reg.
59237 (Oct. 4, 2004). Jacob's allegations do not state either an injury in fact or any
pervasive risk of potential injury from the new policy.

      Finally, because the district court dismissed the complaint without prejudice,
Jacob is not jeopardized. He is free to bring suit whenever he can allege the existence
of sufficient facts to demonstrate an unreasonable or "pervasive risk of harm to
inmates" or to indicate "what the officials are doing or not doing that is not in accord
with proper practice as established by medical guidelines." Glick, 855 F.2d at 539.

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       Accordingly, we dismiss for lack of jurisdiction the appeal from the district
court's dismissal of Jacob's complaint and denial of his Rule 59(e) motions. We
affirm the district court's denial of relief under Rule 60(b).
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