Jeffrey Coleman v. John Jabe

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:11-cv-00518-SGW-PMS Copies to all parties and the district court/agency. [999752831]. Mailed to: Jeffrey Coleman. [15-6975]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6975

JEFFREY COLEMAN,
Plaintiff - Appellant,
v.
JOHN JABE; ROBERT BIVENS; HAROLD CLARKE; LOU CEI; VIRGINIA
DEPARTMENT OF CORRECTIONS; UNKNOWN MEMBERS OF THE FAITH
REVIEW COMMITTEE,
Defendants – Appellees,
and
T. JONES; STANLEY YOUNG; K. S. RICHARDSON; CATHERINE TURNER;
DAVE HAMMOND; GENE JOHNSON; ROY WALZ; RON HALL; G. ROBINSON;
JOHN GARMAN; S. MEEKS; MAJOR BATTON; D. J. HASTY-MARTIN;
RANDY
MYERS;
TED
DURR;
JONES
EXPRESS
MUSIC;
KEEFE
COMMISSARY,
Defendants.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:11-cv-00518-SGW-PMS)

Submitted:

January 21, 2016

Decided:

February 10, 2016

Before WILKINSON, KING, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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Jeffrey Coleman, Appellant Pro Se.
Richard Carson Vorhis,
Senior Assistant Attorney General, Laura Haeberle Cahill, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jeffrey Coleman appeals the district court’s order denying
his Fed. R. Civ. P. 60(b)(6) motion.

We review the district

court’s order for abuse of discretion.

CNF Constructors, Inc.

v. Donohoe Constr. Co., 57 F.3d 395, 401 (4th Cir. 1995) (per
curiam).

An appeal from the denial of a Rule 60(b) motion does

not bring up the merits of the underlying judgment, but only
permits review of the motion in light of the requirements for
Rule 60(b) relief.

MLC Auto., LLC v. Town of S. Pines, 532 F.3d

269, 277 (4th Cir. 2008).
To

receive

threshold

Rule

showing

60(b)

of

relief,

timeliness,

the
“a

movant

must

meritorious

make

claim

a
or

defense,” and lack of unfair prejudice to the opposing party, in
addition to one of the grounds for relief enumerated under Rule
60(b).

Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011).

Rule 60(b)(6) permits relief only when the movant demonstrates
“extraordinary circumstances.”
Our

review

circumstances.
postjudgment
provide

of

the

record

Although
change

sufficiently

in

Id. at 500.
reveals

Coleman

decisional

extraordinary

relief under Rule 60(b)(6).

no

bases
law,

such
his

such

extraordinary
motion

changes

circumstances

to

on

a

rarely
justify

See Gonzalez v. Crosby, 545 U.S.

524, 536-37 (2005); Stokes v. Williams, 475 F.3d 732, 735-36
(6th

Cir.

2007);

United

States
3

ex

rel.

Garibaldi

v.

Orleans

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Parish Sch. Bd., 397 F.3d 334, 337-38 (5th Cir. 2005); Dowell v.
State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir.
1993).
509

Although Coleman cites Harper v. Va. Dep’t of Taxation,

U.S.

86,

97

(1993),

and

related

cases,

that

line

of

authority does not compel a different result in the procedural
posture presented here.
Moreover, “[a] Rule 60(b) motion may not substitute for a
timely appeal.”

In re Burnley, 988 F.2d 1, 3 (4th Cir. 1992).

Coleman’s deliberate choice not to prosecute his appeal of the
court’s underlying judgment by refusing to pay the applicable
filing

fee

deprived

him

of

the

opportunity

to

challenge

the

district court’s determination and, in turn, to raise the change
in decisional law on appeal before his judgment became final.
See Gonzalez, 545 U.S. at 537; Dowell, 993 F.2d at 48.

Coleman

may not use Rule 60(b) to avoid the consequences of such a
strategic choice, even if hindsight later reveals it to be illadvised.
Accordingly,
dispense

with

contentions

are

we

oral

affirm

the

argument

adequately

district

because

presented

in

court’s

the
the

facts

order.

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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