ELD-004 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2460
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VITO A. PELINO,
Appellant
v.
JOHN E. WETZEL; ROBERT GILMORE; MICHAEL ZAKEN
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-20-cv-00326)
District Judge: Honorable Arthur J. Schwab
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
December 23, 2022
Before: GREENAWAY, JR., KRAUSE, and MATEY, Circuit Judges
(Opinion filed: January 3, 2023)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Vito Pelino, an inmate proceeding pro se and in forma pauperis, appeals from the
District Court’s order denying his post-judgment motion. We will summarily affirm the
District Court’s judgment.
I.
In March 2020, Pelino initiated this lawsuit challenging a Pennsylvania
Department of Corrections (“DOC”) mail policy, which he alleged violates the First and
Fourteenth Amendments to the United States Constitution. Under the policy, incoming
non-privileged mail is sent to a third party, Smart Communications, for electronic
scanning, after which inmates receive a photocopy of their mail. Pelino alleged that the
policy permits storage of personal mail in an electronic database for a period of seven
years. He sought injunctive relief, a declaratory judgment, and court costs.
The District Court granted the defendants’ motion to dismiss Pelino’s amended
complaint in February 2021, and we affirmed. See Pelino v. Wetzel, No. 21-1363, 2022
WL 1239050 (3d Cir. Apr. 27, 2022) (per curiam). Pelino then filed a motion for relief
from the judgment under Federal Rule of Civil Procedure 60(b) in the District Court,
arguing that he possessed new evidence supporting his contention that the mail policy
allows electronic storage of non-privileged inmate mail for seven years, and that the
defendants engaged in fraud by asserting that they destroy mail after 45 days. The
District Court denied the motion, concluding that it was untimely and without merit.
Pelino appeals.
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II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Ohntrup
v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir. 1986) (per curiam). We review the
District Court’s order denying the Rule 60(b) motion for abuse of discretion. Budget
Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008). We may affirm on any basis
supported by the record, see Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam), if the appeal presents no substantial question, see 3d Cir. L.A.R. 27.4; 3d Cir.
I.O.P. 10.6.
III.
Pelino argues that his motion was brought under Rule 60(b)(6), which has no
explicit time limit, and that the District Court accordingly erred in concluding that his
motion was untimely. However, as Pelino’s motion relied on newly discovered evidence
and allegations of fraud on the part of the defendants, it is better construed as one brought
under Rule 60(b)(2) or 60(b)(3). See Fed. R. Civ. P. 60(b)(2)-(3) (providing that a court
may relieve a party from a judgment based on, respectively, “newly discovered evidence
that, with reasonable diligence, could not have been discovered in time to move for a new
trial under Rule 59(b)” or “fraud . . . , misrepresentation, or misconduct by an opposing
party”). Such motions must be filed “no more than a year after the entry of the judgment
or order” at issue. Fed. R. Civ. P. 60(c)(1); see also Moolenaar v. Gov’t of V.I., 822 F.2d
1342, 1346 n.5 (3d Cir. 1987) (noting that “[a]n appeal does not toll this time period”).
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Here, the District Court dismissed Pelino’s action in February 2021, and Pelino did not
file his Rule 60(b) motion until May 2022, several months late. While Pelino is correct
that motions under Rule 60(b)(6) are not subject to a one-year limitation, see Fed. R. Civ.
P. 60(c)(1), that provision “is available only when Rules 60(b)(1) through (b)(5) are
inapplicable,” Kemp v. United States, 142 S. Ct. 1856, 1861 (2022), and may not be used
“as a means by which the time limitations of 60(b)(1-3) may be circumvented,” Stradley
v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975). Accordingly, we agree with the District
Court that Pelino’s motion was untimely.
Even if his motion could be construed as one under Rule 60(b)(6), moreover,
Pelino failed to show “extraordinary circumstances” justifying relief. See Budget Blinds,
536 F.3d at 255 (explaining that a showing of extraordinary circumstances involves
demonstrating that “without relief from the judgment, an extreme and unexpected
hardship will result” (citation and internal quotation marks omitted)). As the District
Court noted, Pelino’s motion was essentially an effort to re-litigate the merits of his
amended complaint. Although he pointed to evidence supporting his contention that
electronic copies of non-privileged mail are stored in Smart Communications’ database
for seven years, we accepted Pelino’s allegation to that effect as true in affirming the
District Court’s order dismissing Pelino’s amended complaint. See Pelino, 2022 WL
1239050, at *1-2. Thus, we agree with the District Court that Pelino’s motion also lacked
merit.
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Accordingly, we will affirm the judgment of the District Court.
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