* Local Rule 47.5.1 provides: "The publication of opinions that have

no precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that Rule, the Court has determined that this

opinion should not be published.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-30444

(Summary Calendar)

_______________

MILTON ROBERTS,

Plaintiff-Appellant,

versus

CHARLES C. FOTI, JR, Sheriff;

MEDICAL STAFF,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court

For the Eastern District of Louisiana

(CA 94 2153 D)

_______________________________________________

September 20, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Milton Roberts appeals the order of the district

court denying his motion for out-of-time appeal. We affirm.

I

Roberts, a Louisiana prisoner, suffered injuries during a

prison yard basketball game. Proceeding pro se and in forma

pauperis, Roberts filed a civil rights action, pursuant to 42
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U.S.C. § 1983, against Defendant Sheriff Charles C. Foti. Roberts

subsequently failed to respond to the magistrate's order to file a

statement of facts and list of witnesses, failed to respond to a

court order to show cause why his case should not be dismissed for

failure to prosecute, and failed to object to the magistrate's

findings and recommendations. The district court dismissed

Roberts' complaint with prejudice for failure to prosecute and

entered judgment for Foti.

Roberts did not file a notice of appeal within thirty days

after entry of the district court's judgment. Forty-three days

after judgment, Roberts filed a "Request for Out-of-Time Appeal,"

alleging that prison personnel had misplaced Roberts' timely mailed

statement of facts. The district court denied the motion the next

day. Fifty-four days after entry of judgment, Roberts filed a

second request for out-of-time appeal, alleging that he had

received neither the order to show cause nor the magistrate's

findings and recommendations. After an evidentiary hearing, the

district court also denied this second motion. Eleven days after

entry of the order denying the second motion, Roberts filed a

notice of appeal.

II

Compliance with the requirements for timely filing a notice of

appeal is a prerequisite to the exercise of appellate jurisdiction.

Meggett v. Wainwright, 642 F.2d 95, 96 (5th Cir. 1981). A notice

of appeal from a final judgment or order must be filed within

thirty days after entry of the judgment or order appealed from.
 

1 A district court's denial of a motion to excuse delay is reviewable

for abuse of discretion. Allied Steel v. City of Abilene, 909 F.2d 139, 142 (5th

Cir. 1990).

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FED. R. APP. P. 4(a)(1). Upon a showing of excusable neglect, the

district court may extend the time for filing a notice of appeal by

granting a motion to excuse delay filed within sixty days after

entry of the judgment or order appealed from. FED. R. APP. P.

4(a)(5). In this case, the orders denying both of Roberts'

motions, construed as Rule 4(a)(5) motions to excuse delay, were

appealable upon timely filing of a notice of appeal. However,

Roberts' notice of appeal was filed eighty-four days after the

denial of his first motion. Thus, the only matter before this

Court is the district court's denial of Roberts' second motion.1

 Roberts filed his second motion after the expiration of the

thirty-day period for filing notice of appeal of the dismissal of

his complaint, but within the sixty-day period for filing a motion

to excuse delay. Attempting to demonstrate excusable neglect,

Roberts alleged that prison personnel purposely withheld from him

the court's order to show cause and the magistrate's findings and

conclusions. After holding an evidentiary hearing via telephone

conference call, the magistrate found Roberts' claims not to be

credible. Roberts offered no evidence that prison personnel were

intercepting his mail, and he stated that he had indeed received

the magistrate's findings and conclusions. Roberts also stated

that he mailed a timely notice of appeal shortly after receiving

notice of the judgment, contrary to the record and inconsistent
 

2 The allegations in Roberts' second motion attack the grounds for the

district court's denial of his first motion. Thus, Roberts' second motion could

also be construed as a motion for relief from the district court's order denying

his first motion. FED. R. CIV. P. 60(b). See Latham v. Wells Fargo Bank, N.A.,

987 F.2d 1199, 1203 (5th Cir. 1993) (construing "motion to set aside order of

dismissal," which attacked grounds for denial of earlier motion, as Rule 60(b)

motion for relief from an order). Since a district court's denial of a motion

for relief from an order is also reviewable only for abuse of discretion, Seven

Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981), characterization of

Roberts' motion as a Rule 60(b) motion for relief from an order would not affect

our holding. 

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with his two subsequent motions (to file an untimely appeal).

Thus, Roberts presented no credible evidence explaining why he did

not file a timely notice of appeal of the dismissal of his

complaint. On these facts, Roberts made no showing of excusable

neglect. Accordingly, we hold that the district court did not

abuse its discretion in denying Roberts' second motion for out-oftime appeal.2

III

For the foregoing reasons, we AFFIRM the order of the district

court denying Roberts' motion for out-of-time appeal.