NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INGINIO HERNANDEZ, No. 17-16384
Plaintiff-Appellant, D.C. No. 3:13-cv-00083-MMD-
WGC
v.
RENEE BAKER, Warden; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Nevada state prisoner Inginio Hernandez appeals pro se from the district
court’s order denying his post-judgment motion following a jury verdict in favor of
defendants in his 42 U.S.C. § 1983 action alleging cruel and unusual punishment.
We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
discretion. Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255,
1262 (9th Cir. 1993). We affirm.
The district court did not did not abuse its discretion by denying
Hernandez’s post-judgment motion seeking reconsideration because Hernandez
failed to establish any basis for relief. See id. at 1262-63 (grounds for
reconsideration under Federal Rule of Civil Procedure 59(e) and 60(b)).
As to the merits of Hernandez’s underlying claims, we lack jurisdiction to
review the district court’s judgment. After the district court entered judgment
against Hernandez, Hernandez’s untimely motion did not toll the time to file an
appeal. Thus, his notice of appeal is untimely as to the judgment. See Fed. R.
App. P. 4(a)(1)(A), 4(a)(4) (notice of appeal must be filed within 30 days after
entry of judgment or order appealed from; Rule 60(b) motion must be filed within
28 days of judgment to have tolling effect); Fed. R. Civ. P. 59(b) (Rule 59(e)
motion must be filed within 28 days of judgment to have tolling effect); Stephanie-
Cardona LLC v. Smith’s Food & Drug Ctrs., Inc., 476 F.3d 701, 703 (9th Cir.
2007) (“A timely notice of appeal is a non-waivable jurisdictional requirement.”).
Hernandez’s motion to file an oversized reply brief (Docket Entry No. 29) is
granted. The Clerk shall file the reply brief submitted on May 14, 2018.
AFFIRMED.
2 17-16384