Gomez

MEMORANDUM

Robert P. Smith, a California state prisoner, appeals pro se the district court’s order denying his motion to reconsider-summary judgment for defendant in Smith’s 42 U.S.C. § 1983 action alleging denial of access to the courts because the state prison system’s indigence policy requires Smith to choose between buying necessary hygiene supplies and buying legal supplies. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

We lack jurisdiction to address Smith’s contentions regarding the merits of the district court’s original entry of judgment because Smith both failed to file a notice of appeal within 30 days of the district court’s order granting summary judgment for defendant and failed to file a timely post-judgment tolling motion. Accordingly, we review only the district court’s order denying Smith’s motion to reconsider.

“An untimely motion for reconsideration is construed as a motion based on Fed. R.Civ.P. 60(b).” Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441 , 1463 n. 35 (9th Cir.1992). Denial of such a motion is reviewed for abuse of discretion. See School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255 , 1262 (9th…