Harold H. Thompson, Plaintiff-appellant, v. Herman C. Davis, Warden, Defendant-appellee, 953 F.2d 645 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 953 F.2d 645 (6th Cir. 1992)

Jan. 29, 1992


Before RALPH B. GUY, Jr., ALAN E. NORRIS and BATCHELDER, Circuit Judges.


ORDER

This pro se Tennessee prisoner appeals the district court's order denying his Fed. R. Civ. P. 60(b) motion for relief from a prior judgment dismissing his civil rights complaint filed under 42 U.S.C. § 1983. He has filed a motion for leave to proceed in forma pauperis on the appeal and requests the appointment of counsel. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In a complaint filed in the District Court for the Eastern District of Tennessee, Southern Division, Harold H. Thompson alleged that his civil rights were violated when defendant denied visitation privileges to Thompson's wife. The district court granted Thompson's application for pauper status and later transferred the action to the District Court for the Eastern District of Tennessee, Northern Division.

Subsequent to the transfer, the district court granted Thompson's motion for summary judgment and directed that a hearing on damages be scheduled. Defendant filed a motion for relief from judgment under Fed. R. Civ. P. 60(b). The district court granted the motion, vacated its earlier order and dismissed the complaint. The district court's order was entered December 28, 1989.

On January 5, 1991, Thompson filed his own motion for relief from judgment. He contended that his counsel failed to inform him that his complaint had been dismissed. The motion was denied. On appeal, Thompson reasserts the merits of his underlying claim.

Upon review, we conclude that the district court did not abuse its discretion by denying the motion for relief from judgment. See In re Salem Mortgage Co., 791 F.2d 456, 459 (6th Cir. 1986). The merits of the underlying judgment are not subject to review. See McKnight v. United States Steel Corp., 726 F.2d 333, 338 (7th Cir. 1984).

To the extent Thompson's allegations are construed as presenting grounds for relief under Fed. R. Civ. P. 60(b) (1), (2), or (3), his motion was not timely. To the extent he sought relief under Fed. R. Civ. P. 60(b) (6), he failed to present extraordinary or exceptional grounds for relief. See e.g., Olle v. Henry & Wright Corp., 910 F.2d 357, 365-66 (6th Cir. 1990).

Accordingly, the request for appointment of counsel is denied and the motion for pauper status is denied as moot. The district court's order denying the motion for relief from judgment is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.