*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

** After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case therefore is ordered

submitted without oral argument.

UNITED STATES COURT OF APPEALS

Filed 4/29/96 TENTH CIRCUIT

 

ROLLY O. KINNELL, )

)

Plaintiff-Appellant, )

)

vs. ) No. 95-3412

) (D.C. No. 95-CIV-3301)

FORT SCOTT POLICE DEPARTMENT, ) (D. Kan.)

SHAWN WEST, FORT SCOTT SHERIFF’S )

DEPARTMENT, HAROLD COLEMAN, )

FORT SCOTT MENTAL HEALTH CENTER, )

(NFN) IBARRA, Dr., OSAWATOMIE STATE )

HOSPITAL, STEPHEN H. FEINSTEIN, BILL )

GRAVES, Governor, STATE OF KANSAS, )

CARLA STOVAL, Attorney General of )

Kansas, )

)

Defendants-Appellees. )

 

ORDER AND JUDGMENT*

 

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.**

 

In July 1995, Plaintiff Rolly O. Kinnell brought a 42 U.S.C. § 1983 action alleging
2

Defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights. Plaintiff

maintained that: (1) Kan. Stat. Ann. § 59-2912 is unconstitutional and allowed state

agents to jail him without proving any elements of insanity; and (2) Defendants conspired

with “citizens of Kansas, a doctor at a mental health center, [and] all the doctors at the

state hospital,” to abduct Plaintiff under an unconstitutional statute. The district court

concluded that Plaintiff’s arguments were conclusory and without legal or factual support. 

The court dismissed Plaintiff’s § 1983 action in a September 7, 1995 order and concurrent

judgment. 

Plaintiff did not appeal the district court’s September 7th order. Instead, on

September 12, Plaintiff filed a motion to reconsider. The district court liberally construed

Plaintiff’s motion as seeking to alter or amend judgment pursuant to Fed. R. Civ. P. 59(e). 

By an October 2, 1995 order, the district court denied Plaintiff’s motion to alter or amend

judgment. Plaintiff did not appeal the district court’s October 2nd order. 

Instead, Plaintiff filed another motion to reconsider on November 21, 1995. The

district court denied this motion in a December 12, 1995 order. Plaintiff filed his notice

of appeal on December 18th. In January 1996, the district court denied Plaintiff leave to

appeal in forma pauperis.

I.

On appeal, Plaintiff contends the district court erred in dismissing his § 1983
1

 Plaintiff also asserts that: (1) he “was denied a hearing without due process”; (2)

“mental illness is entitled to the same due process procedure”; (3) “mental health centers

are not to be used and abused by state law enforcement agents to make illegal arrests.” 

We do not consider these arguments because they are raised for the first time on appeal. 

Farmers Ins. Co. v. Hubbard, 869 F.2d 565, 570 (10th Cir. 1989). 

3

action. Plaintiff renews the arguments he raised below.1

 For the reasons that follow, we

lack appellate jurisdiction to review the district court’s September 7th and October 2nd

orders, but have jurisdiction to review the court’s December 12th order.

A.

Under Federal Rule of Appellate Procedure 4(a)(1), a party in a civil case must file

its notice of appeal within thirty days “after the date of entry of the judgment or order

appealed from.” A party may toll the time to appeal, by filing within ten days after entry

of judgment: (1) a motion to alter or amend judgment under Rule 59, or (2) a motion for

relief from judgment under Rule 60(b). See Fed. R. App. P. 4(a)(4)(C), (F), Fed. R. Civ.

P. 59(e). If a party timely files one of the above tolling motions, “the time for appeal for

all parties runs from the entry of the order disposing of the last such motion outstanding.” 

Fed. R. App. P. 4(a)(4). 

Plaintiff did not appeal the district court’s September 7th order and concurrent

judgment. Plaintiff did, however, file a motion to alter or amend judgment within ten

days. This motion tolled the time for appeal. Fed. R. App. P. 4(a)(4)(C). The district

court entered its order disposing of Plaintiff’s Rule 59(e) motion on October 2nd. 

Plaintiff had thirty days from October 2nd to appeal. Fed. R. App. P. 4(a)(4). He did not
2

 We grant Plaintiff’s motion to proceed in forma pauperis.

4

do so. Although Plaintiff filed a second motion to reconsider on November 21st, which

the district court construed as a Rule 60(b) motion, this motion did not toll the time for

appeal because Rule 60(b) motions toll the appeal time only if “filed no later than 10 days

after the entry of judgment.” Fed. R. App. P. 4(a)(4)(F). Accordingly, because Plaintiff

failed to timely appeal the district court’s September 7th and October 2nd orders, we lack

jurisdiction to review them. Turnbull v. Wilcken, 893 F.2d 256, 257 (10th Cir. 1990) (“A

timely notice of appeal is an essential prerequisite to appellate jurisdiction.”). 

B.

Plaintiff did, however, timely appeal on December 18th, the district court’s

December 12th order denying his Rule 60(b) motion for relief from judgment. We

therefore have jurisdiction to review the district court’s December 12th order. Our

review, however, is limited to this order; we cannot review the underlying judgment. Van

Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). We review the district

court’s order denying Plaintiff’s Rule 60(b) motion for abuse of discretion. White v.

American Airlines, 915 F.2d 1414, 1425 (10th Cir. 1990). 

We have reviewed Plaintiff’s brief and the entire record on appeal. Based on our

review of the record, we find no abuse of discretion in the district court’s denial of

Plaintiff’s motion for relief from judgment. We therefore AFFIRM.2
5

AFFIRMED. 

ENTERED FOR THE COURT

Bobby R. Baldock

Circuit Judge