Unpublished Dispositionlee Iler, Plaintiff-appellant, v. Robert Brown, Jr.; John Wireman, Defendants-appellees, 902 F.2d 33 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 33 (6th Cir. 1990)

May 9, 1990


Before RALPH B. GUY, Jr. and RYAN, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

This pro se plaintiff appeals the district court's judgment denying his motion for relief from judgment filed pursuant to Fed. R. Civ. P. 60(b) (1).

Plaintiff sued the defendants pursuant to 42 U.S.C. § 1983, alleging a violation of his constitutional rights while an inmate at Camp Lehman in Grayling, Michigan. Plaintiff alleged that as a result of overcrowding and understaffing at the camp, he was attacked by more than 20 members of a known religious militant group, with a following of more than 100 members at Camp Lehman. Plaintiff sought monetary damages. The district court granted the defendants' motion for summary judgment and dismissed the complaint on May 2, 1989. Instead of appealing that ruling, plaintiff filed a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b), which was ultimately denied. Upon review, we conclude the district court properly denied the motion.

A ruling on a Fed. R. Civ. P. 60(b) motion for relief from judgment is appealable, but it does not bring the final judgment under review. Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1020 (6th Cir. 1983). The abuse of discretion standard of review is applied to an appeal from the denial of a Rule 60(b) motion. Smith v. Secretary of Health and Human Services, 776 F.2d 1330, 1332 (6th Cir. 1985).

The motion filed by plaintiff stated that the district court granted summary judgment without informing plaintiff that he should file an affidavit in opposition. There is no authority in this circuit for the proposition that a district court must advise a pro se prison inmate of his right to file counter affidavits or other responsive material or that he must be alerted to the fact that his failure to so respond might result in entry of summary judgment against him. The district court, therefore, did not abuse its discretion in denying the Rule 60(b) motion.

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.