Edward A. Ashford v. Charles Steuart, Don Erby, Ray Beaman, Steve Stedfelt, and Maynard Ross

Plaintiff failed to file a notice of appeal within thirty days of the order denying leave to file his complaint in forma pauperis. We therefore have no jurisdiction to consider the merits of that ruling. Fed.R.App.P. 4(a). However, we do have jurisdiction to consider the denial of plaintiff’s motion for reconsideration under Fed.R.Civ.P. 60(b) since plaintiff’s motion for leave to appeal in forma pauperis was filed within thirty days after denial of this motion and was sufficient evidence of plaintiff’s intent to appeal. See Noa v. Key Futures, Inc., 638 F.2d 77, 78 (9th Cir. 1980); Tillman v. United States, 268 F.2d 422, 423-24 (5th Cir. 1959).

The district court denied plaintiff leave to file his complaint because he had improperly named the warden as defendant and had not alleged facts sufficient to satisfy Fed.R.Civ.P. 8(a). In his Rule 60(b) motion, filed more than 30 days after the order denying leave to file, plaintiff sought to dismiss his complaint with respect to the warden and to re-argue the sufficiency of his complaint.

Construing the motion to reconsider as a request for relief from a judicial “mistake” under 60(b)(1), the motion was untimely. According to the…