Unpublished Dispositionin Re Morris May, Plaintiff-appellant, 897 F.2d 529 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 897 F.2d 529 (6th Cir. 1990) March 7, 1990

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and LAWRENCE P. ZATKOFF, District Judge.* 


Plaintiff May appeals from the district court's order denying May's motion for relief from judgment in this civil rights case. 42 U.S.C. § 1983 (1982). May is a prolific litigant who resides in Cincinnati, Ohio. Pursuant to an order of this court, the district court entered an order imposing a $15.00 partial filing fee upon May. May appealed from that order, and this court affirmed.

May then filed a Fed. R. Civ. P. 60(b) motion. The district court denied this motion, and May appealed.

A Rule 60(b) motion is appealable in and of itself. Peake v. First Nat'l Bank, 717 F.2d 1016, 1020 (6th Cir. 1983). The standard of review is abuse of discretion; the appeal does not bring up the underlying judgment for review. 717 F.2d at 1020.

May argues that the district court should have waited for the mandate to issue on this court's appeal and should have given May notice of its intention to issue the order. While the district court could have followed these procedures, any error here was harmless. Fed. R. Civ. P. 61. This court clearly authorized the order; none of May's substantial rights was violated. The district court did not abuse its discretion when it denied the motion.

The order of the district court is affirmed under Rule 9(b) (5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.


The Honorable Lawrence P. Zatkoff, U.S. District Judge for the Eastern District of Michigan, sitting by designation