Glenn Smith v. Diane Kukua

Case: 12-40033 Document: 00511966022 Page: 1 Date Filed: 08/22/2012

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 22, 2012
No. 12-40033
Summary Calendar Lyle W. Cayce
Clerk

GLENN FLOYD SMITH,

Plaintiff-Appellant

v.

DIANE KUKUA; KENNETH NEGBENEBOR; DIRK LORIMEIR; SAMUEL
SEALE; NATHANIEL ARDS; ET AL,

Defendants-Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:08-CV-194

Before JONES, Chief Judge, and SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
Glenn Floyd Smith, Texas prisoner # 851176, appeals from the district
court’s order denying his Federal Rule of Civil Procedure 60(b) motion for relief
from the district court’s judgment dismissing his 42 U.S.C. § 1983 civil rights
complaint as frivolous and for failure to state a claim. See 28 U.S.C.
§ 1915A(b)(1); § 1915(e)(2)(b)(i). Smith argues that the district court abused its
discretion in denying him relief under Rule 60(b)(2) on the basis of the newly

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 Case: 12-40033 Document: 00511966022 Page: 2 Date Filed: 08/22/2012

No. 12-40033

discovered evidence that two prison units, where he previously had been housed,
did not post copies of the Anti-Terrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), in the law libraries.
He further argues that the district court abused its discretion in denying relief
under Rule 60(b)(3) on the basis of fraudulent court rulings and that the court
erred in determining, in denying his Rule 60(b) motion, that his case was not
dismissed pursuant to the AEDPA.
Our review of the district court’s denial of a Rule 60(b) motion is limited
to whether the district court abused its discretion in denying relief. Matter of
Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir. 1984). “It
is not enough that the granting of relief might have been permissible, or even
warranted--denial must have been so unwarranted as to constitute an abuse of
discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
A motion under Rule 60(b) must be made “within a reasonable time,” and
a motion under subsections (1) through (3) of Rule 60(b) must be made “no more
than a year after the entry of the judgment or order or the date of the
proceeding.” FED R. CIV. P. 60(c)(1). Smith’s Rule 60(b) motion, filed in October
2011, expressly sought relief from the judgment, which was entered on April 19,
2010, under Rule 60(b)(2) on grounds of newly discovered evidence and Rule
60(b)(3) on grounds of fraud. Because Smith filed his Rule 60(b) motion almost
18 months after the district court entered the judgment, his motion seeking
relief under Rule 60(b)(2), (3) was untimely. See FED. R. CIV. P. 60(c)(1); Wilson
v. Johns-Manville Sales Corp., 873 F.2d 869, 871-72 (5th Cir. 1989).
Although the district court did not rely on untimeliness as the basis for
denial, we may affirm on any ground that is apparent from the record. See Davis
v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). Because it is apparent from the
record that Smith filed his Rule 60(b) motion almost six months beyond the outer
limit for seeking relief under Rule 60(b)(2), (3), the district court’s denial of
Smith’s Rule 60(b) motion is AFFIRMED. See FED. R. CIV. P. 60(c)(1).

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