* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court g enerally disfavors the citation of orders and judgments; nevertheless, an order and ju dgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### OCT 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE RIDEOUT, Plaintiff-Appellant, v. H.N. SCOTT, Warden, Joseph Harp Correctional Center, VICKIE SHOECRAFT, Citizen of Lexington, Oklahoma, and is employed as Deputy Warden, Defendants-Appellees. No. 98-6231 (D.C. No. 97-CV-41) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
Plaintiff-Appellant José Rideout, a state prisoner in Oklahoma, appeals an order of the district court denying his motion for relief from judgment under Fed. R. Civ. P. 60(b). Mr. Rideout seeks relief from an order of the district court- 2 -

adopting a magistrate judge’s recommendation to dis miss Mr. Rideout’s underlying civil rights action against defendants. Although the district court denied two prior attempts by Mr. Rideout to proceed IFP on grounds that his appeals were not taken in good faith, (entry nos. 6 2, 65); see 28 U.S.C. § 1915(a)(3), Mr. Rideout also renews in this court amotion under 28 U.S.C. § 1915 for leave to proceed IFP. Because we find that Mr. Rideout’s appeal is frivolous, we deny his motion to proceed IFP and di smiss his appeal. Mr. Rideout sued the defendants under 42 U.S.C. § 1 983, alleging a violation of his civil rights when he was sentenced to 15 days of disciplinary segregation for refusing an order to move into a ce ll with another inmate. On March 11, 1998, a magistrate judge recommended dism issal of his suit as frivolous. (Entry no. 50.) Mr. Rideout acknowledges that he received a copy of the magistrate’s Report and Recommendation on March 12, 1998. The r eport advised him of his right to object no later than March 26, 1998, and t hat failure to object would result in waiver of his right to appeal the report’ s factual findings and legal conclusions. On March 31, 1998, the district courtnoted that no objections had been filed by either party, adopted the magistrate’ s report and recommendation in its entirety, and dismissed the suit with prejudice . (Entry no. 52.)- 3 -

On April 20, 1998, Mr. Rideout filed a Rule 60(b) m otion seeking relief from the district court’s judgment, contending thathis “conditions of confinement” had prevented him from timely filing h is objections. (Entry no. 57.) The district court denied the motion, finding that none of Mr. Rideout’s “myriad reasons” for failing to timely object provided a ba sis for relief under Rule 60(b). Mr. Rideout now appeals, arguing again that his con ditions of confinement created “excusable neglect” for his delay. See Fed. R. Civ. P. 60(b)(1). Rule 60(b) motions are reviewed for abuse of discre tion. Stubblefield v. Windsor Capital Group , 74 F.3d 990, 994 (10th Cir. 1996). “[I]n determi ning whether a district court abused its discretion, we are mindful that ‘[r]elief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances.” Cashner v. Freedom Stores, Inc. , 98 F.3d 572, 576 (10th Cir. 1996)(quoting Bud Brooks Trucking, Inc. v. Bill Hod ges Trucking Co. , 909 F.2d 1437, 1440 (10th Cir. 1990)). “[O]nly if we find a complete absence of a reasonable basis and are certain that the district court’s decision is wrong do we reverse.” Pelican Prod. Corp. v. Marino , 893 F.2d 1143, 1147 (10th Cir. 1990). Furthermore, review of a denial of a Rule 60(b) mot ion is confined only to review of the order of denial and does not extend to revie w of the underlying judgment. See Van Skiver v. United States , 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied , 506 U.S. 828 (1992).1 Mr. Rideout clearly was aware that he could seek su ch an extension. The

record reflects that he sought – and received – suc h an extension (on grounds of his conditions of confinement) for filing his oppos ition to defendants’ Motion to Dismiss or for Summary Judgment. (Entry nos. 34, 37 , 43.) - 4 - Mr. Rideout states that a series of circumstances during March 12-26, 1998 hindered his ability to respond to the magistrate j udge’s report. The specific circumstances of Mr. Rideout’s confinement, while p erhaps preventing him from filing his substantive objections within the 15-daylimit, did not entirely prevent him from seeking leave of the district court for an extension of time. 1 In short, Mr. Rideout’s failure to make timely objections to the magistrate judge’s report and recommendation, or even to seek an extension of time to file his objections, waived appellate review of the magistrate judge’s f actual findings and legal conclusions. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). As a result, his attempt to reopen the district cou rt’s judgment dismissing his case is without merit. For the reasons stated above, we DENY the motion to proceed IFP under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous. This appea l shall count as a strike pursuant to 28 U.S.C. § 1915(g). Appeal DISMISSED.- 5 -

The mandate shall issue forthwith. ENTERED FOR THE COURT

David M. Ebel Circuit Judge