* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR
. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### November 10, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARITY LEHNERT, Plaintiff-Appellant, No. 04-1529
v. (D. Colorado) BILL HERSH, Lieutenant; THOMAS HAYNIE, Lieutenant; RODNEY RUBEN, Lieutenant; JOEL LEVY, Captain; LINDA FICSHER, Lieutenant; KAREN RAYL, Lieutenant; MARY WEST, Division 2 Director; Defendants, and T. UNRUH, Captain; BECKY TORRI, Major; NOBLE WALLACE, Warden; RANDY LIND, Captain, Defendants-Appellees. (D.C. No. 01-B-859 (BNB))

ORDER AND JUDGMENT *** After examining the briefs and appellate record, th is panel has determined

unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See F ED
. R. A PP
. P. 34( F ). The case is therefore submitted without oral argument. -2- Before EBEL , McKAY , and HENRY , Circuit Judges. **
Charity Lehnert appeals the district court’s order denying her Motion for Rehearing, filed in the district court on August 20 , 2004. We affirm the district court’s decision.

I. BACKGROUND In May 2001, Ms. Lehnert filed this pro se 42 U.S.C . § 1983 action alleging that she had been subjected to physical abuse while incarcerated at the Denver Women’s Correctional Facility. Ms. Lehnert failed to respond to several court orders, and, as a result, on January 2, 2002, the d istrict court dismissed her complaint. On December 11, 2003, Ms. Lehnert filed a motion fo r relief from the judgment pursuant to Fed. R. Civ. P. 60(b)(1). She asserted that she had been incarcerated since August 7, 2001 and “did not rece ive notice of any judgment against her and was confused and misinformed about federal civil procedures in question.” Rec. doc. 28, at 1-2.-3-

On May 7, 2004, the district court denied Ms. Lehne rt’s Rule 60(b)(1) motion. The court stated:

I cannot conclude that the grounds argued by Plaint iff constitute excusable neglect. The record here indi cates that after Plaintiff filed her initial complaint, s he informed the court of a new address when her mail was not pro perly forwarded to her in June 2001. As a result, it is clear that Plaintiff was aware that in order to receive pleadi ngs from the court in this matter, she would need to inform the court of any change of her address. The record further r eveals that Plaintiff had no contact with the court, afterpaying her filing fee in July of 2001, until ten months la ter when Plaintiff finally notified the court of her new add ress in May 2002. Rec. doc. 29, at 2-3 (Order, filed May 7, 2004). T he court further noted that despite notifying the court of her new address in M ay 2002, Ms. Lehnert did not seek relief from the dismissal of her case until ma ny months later. On August 20, 2004, Ms. Lehnert filed a Motion for Rehearing. She cited Fed. R. Civ. P. 60(b)(1). As grounds for relief, s he again asserted that she had not received mail from the district court. See Rec. doc. 30. The court denied that motion.

II. DISCUSSION Because she cited Fed. R. Civ. P. 60(b)(1) and argu ed that the court should vacate its order of dismissal on grounds of excusab le neglect, we view Ms. Lehnert’s August 2004 Motion for Rehearing as a mot ion for relief from the-4-

judgment pursuant to Fed. R. Civ. P. 60(b)(1). Rul e 60(b)(1) provides that a district court may grant relief from a judgment due to “mistake, inadvertence, surprise or excusable neglect.” A Rule 60(b) motio n “shall be made within a reasonable time, . . . and . . . not more than one year after the judgment, order, or proceeding was entered or taken.” We review the denial of a Rule 60(b) motion for an abuse of discretion. FDIC v. Oldenburg , 38 F.3d 1119, 1123 (10th Cir. 1994). “Relief und er Rule 60(b) is extraordinary and may only be granted in e xceptional circumstances.” Bud Brooks Trucking, Inc. v. Bill Hodges Trucking C o. , 909 F.2d 1437, 1440 (10th Cir. 1990). Here, Ms. Lehnert’s August 20, 2004 Motion for Rehe aring was untimely: she filed it more than two and one-half years afterthe district court’s order of dismissal. Moreover, for the reasons set forth in the district court’s order denying her first Rule 60(b) motion, Ms. Lehnert has not es tablished excusable neglect warranting relief under Rule 60(b).

III. CONCLUSION Accordingly, we AFFIRM the district court’s denial of Ms. Lehnert’s Motion for Rehearing. We also DENY Ms. Lehnert’s m otion to proceed in forma-5-

pauperis in this appeal. Ms. Lehnert is therefore responsible for the immediate payment of the unpaid balance of the appellate fili ng fee.

Entered for the Court,

Robert H. Henry United States Circuit Judge