Harold Pless, Sr. v. Gary Watkins, No. 13-2111 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2111 HAROLD L. PLESS, SR., Plaintiff Appellant, v. GARY WATKINS, Detective of Kannapolis JENNIFER HYATT, Detective; TEN UNKNOWN, Police Department; Defendants - Appellees. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:12-cv-00094-CCE-LPA) Submitted: November 21, 2013 Decided: November 25, 2013 Before KING, DUNCAN, and DIAZ, Circuit Judges. Dismissed in part, affirmed in part by unpublished per curiam opinion. Harold L. Pless, Sr., Appellant Pro Se. Jaye E. Bingham-Hinch, CRANFILL SUMNER & HARTZOG, LLP, Raleigh, North Carolina; Patrick Houghton Flanagan, Kelly Beth Smith, CRANFILL SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Howard L. Pless, Sr., appeals the district court s judgment in favor of Defendants in Pless civil action and the court s order denying his motion to reconsider that judgment. For the reasons that follow, we dismiss in part and affirm in part. While court s August informal brief court s order Pless 22, notice 2013 appears requiring of appeal order denying primarily to Defendants to designated only the reconsideration, his challenge explain the district their untimely summary judgment motion and its order granting summary judgment in favor of Defendants. these orders. 1 However, we lack jurisdiction to review Because Pless post-judgment motion was not filed within twenty-eight days of the judgment, it did not toll the appeal period. Fed. R. App. P. 4(a)(4)(A) (addressing tolling of appeal period pending disposition of certain post-judgment motions); Fed. R. Civ. P. 59(e) (stating time to file motion to alter or amend judgment). Pless notice of appeal therefore was untimely as to the court s underlying judgment and all other 1 Although the parties do not address the timeliness of the appeal, we are obliged to inquire into jurisdiction sua sponte if there is doubt as to its existence. Dickens v. Aetna Life Ins. Co., 677 F.3d 228, 230 (4th Cir. 2012) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977)). 2 orders, except the post-judgment order denying reconsideration. See Fed. R. period). App. P. 4(a)(1)(A) (providing thirty-day appeal Accordingly, we dismiss Pless appeal in part, insofar as it challenges the court s underlying judgment in favor of Defendants. Turning to the order denying reconsideration, we conclude that the district court did not abuse its discretion in denying this motion, as Pless did not meet the requisite showing for Rule 60(b) relief. 2 See Fed. R. Civ. P. 60(b) (enumerating grounds for relief); Aikens v. Ingram, 652 F.3d 496, 500-01 (4th Cir. 2011) (en banc) (addressing requirements for Rule 60(b) relief, and recognizing that Rule 60(b) motion is not substitute for appeal); Dowell v. State Farm Fire & Cas. Auto Ins. Co., 993 F.2d 46, 48 showing). insofar (4th Cir. 1993) (describing required threshold Thus, finding no reversible error, we affirm in part, as the appeal challenges the district court s order denying reconsideration. We grant Pless leave to proceed in forma pauperis. dispense with oral argument because 2 the facts and We legal A motion for reconsideration filed outside the time limits for filing a Rule 59(e) motion is construed as one seeking Rule 60(b) relief. In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992). 3 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED IN PART; AFFIRMED IN PART 4