Terry Miller v. Craig Apker

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 5 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

TERRY MICHAEL MILLER, No. 15-15649

Plaintiff-Appellant, D.C. No. 4:11-cv-00164-DCB

v.
MEMORANDUM*
CRAIG APKER, Warden at US
Penitentiary, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Submitted July 26, 2016**

Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

Terry Michael Miller appeals pro se from the district court’s order denying

his motion to reconsider the district court’s summary judgment in his action under

the Federal Tort Claims Act, 28 U.S.C. § 1346, and Bivens v. Six Unknown Named

*
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).
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We have

jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Sch. Dist.

No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993), and we

affirm.

The district court did not abuse its discretion by denying Miller’s motion to

reconsider because Miller did not identify any grounds for relief from the

judgment. See Fed. R. Civ. P. 59(e); Sch. Dist. No. 1J, 5 F.3d at 1263 (setting

forth grounds for reconsideration).

We lack jurisdiction to review Miller’s challenges to the district court’s

January 12, 2015 order granting summary judgment because Miller did not file a

timely notice of appeal or a timely post-judgment tolling motion. See Fed. R.

App. P. 4(a)(1)A); Fed. R. App. P. 4(a)(4); Fed. R. Civ. P. 59(e) (motion must be

filed within 28 days from entry of judgment); Fiester v. Turner, 783 F.2d 1474,

1475 (9th Cir. 1986) (untimely post-judgment motion does not suspend time to

appeal from the judgment).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Miller’s request for appointment of counsel, filed on September 21, 2015, is

2 15-15649
denied.

AFFIRMED.

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