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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES ERNEST LANE,

Plaintiff-Appellant,

v.

LARRY FIELDS; KEN KLINGLER; MAJOR WHITEHEAD; KULCARNI; DOYLESTOUP; BOBBY GOODSON; JAMES WOOTEN; ROBERT BERNARD, and DONNIE BLEVINS,

Defendants-Appellees.

 No. 01-6248

(D.C. No. Civ-98-1788-C)

(W. D. Okla.)

ORDER AND JUDGMENT(*)

Before EBEL, KELLY, and LUCERO, Circuit Judges.

Mr. Lane filed a civil rights claim pursuant to 42 U.S.C. § 1983 against the defendants for their failure to protect him and for deliberate indifference to his medical needs after he was attacked by a fellow inmate in a prison gym. The magistrate judge issued a lengthy report recommending that Mr. Lane's claims be summarily dismissed. The district court adopted the magistrate's report and dismissed the case.(1) Mr. Lane subsequently filed a "Pro Se Motion to Amend/Alter" and a "Pro Se Motion for Relief from Judgement." (Doc. 88, 92). The district court denied both of these motions, and Mr. Lane now appeals those denials. Finding no error in the district court's decisions, we affirm.

In his brief on appeal, Mr. Lane has moved to "voluntarily dismiss" his first claim of error in the denial of his Motion to Amend/Alter. (Aplt Br. at 3.) Therefore, we need only address the district court's denial of Mr. Lane's Rule 60(b) motion to reconsider. A district court's denial of such a motion is reviewed for abuse of discretion. See Servants of the Paraclete v. Does, I-XVI, 204 F.3d 1005, 1009 (10th Cir. 2000). Relief under such a motion is "extraordinary" and should "only be granted in exceptional circumstances." Id. On appeal, Mr. Lane argues that his motion to reconsider did not merely revisit issues already addressed, as the defendants claim, but that it alleged the magistrate improperly "weighed disputed facts" in recommending dismissal of his claims. (Aplt. Br. at 4).

An evaluation of the magistrate's report and recommendation, however, reveals that the magistrate carefully analyzed the facts as Mr. Lane alleged them, and found that they did not rise to the level of a constitutional violation under

§ 1983. Accordingly, he recommended dismissal of the claims. Finding no error in the magistrate's report, we conclude that the district court did not abuse its discretion in denying Mr. Lane's motion to reconsider. We therefore AFFIRM the district court's denial of that motion. We grant Mr. Lane's motion to proceed in forma pauperis.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTES
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*.After examining appellant's brief and the 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)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral 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 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.

1. Mr. Lane filed a separate appeal objecting to the dismissal of his case. The merits of his underlying case are discussed in that companion appeal. See Lane v. Klingler, et al., No. 01-6144.

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