Loren May, Sr. v. United States, et al

Filing

PER CURIAM OPINION FILED - THE COURT: Duane Benton, Pasco M. Bowman and Bobby E. Shepherd (UNPUBLISHED); [4088145-2] Denying Appellant Mr. Loren W. May, Sr's pending motion. [4118291] [13-2814]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2814
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Loren W. May, Sr.
lllllllllllllllllllll Plaintiff - Appellant
v.
United States of America; T. C. Outlaw, Warden, FCI - Forrest City; Ronald
Smith, Safety Manager, FCI-Forrest City; Geraldo Maldonado, Jr.; Harrell Watts; Does
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Helena
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Submitted: January 24, 2014
Filed: January 29, 2014
[Unpublished]
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Before BENTON, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.

Appellate Case: 13-2814

Page: 1

Date Filed: 01/29/2014 Entry ID: 4118291

Loren May appeals the district court’s1 denial of his Federal Rule of Civil
Procedure 60(b) motion seeking to set aside the judgment in his underlying civil
action. May’s post-judgment motion was based on purported newly discovered
evidence, which he claimed defendants had fraudulently prevented him from
accessing. See Fed. R. Civ. P. 60(b)(2) (relief from final judgment may be based on
newly discovered evidence), (3) (relief from final judgment based on, inter alia, fraud
or misconduct by opposing party). Upon careful review, we conclude that the district
court did not commit a clear abuse of discretion in denying May’s motion. See Jones
v. Swanson, 512 F.3d 1045, 1048 (8th Cir. 2008) (standard of review). More
specifically, we conclude (1) that May’s proffered evidence was merely cumulative
and would not have produced a different result, see Schwieger v. Farm Bureau Ins.
Co. of Neb., 207 F.3d 480, 487 (8th Cir. 2000) (to prevail on newly-discoveredevidence claim under Rule 60(b)(2), movant must establish that evidence is material
and not merely cumulative, and that evidence would likely produce different result),
and (2) that May failed to show by clear and convincing evidence any misconduct by
defendants, see Cook v. City of Bella Villa, 582 F.3d 840, 855 (8th Cir. 2009) (Rule
60(b)(3) movant must show by clear and convincing evidence that defendants engaged
in fraud or other misconduct that prevented him from fully and fairly presenting his
case).
Accordingly, we affirm. See 8th Cir. R. 47B. We also deny May’s pending
motion filed in this court.
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1

The Honorable Jerome T. Kearney, United States Magistrate Judge for the
Eastern District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
-2-

Appellate Case: 13-2814

Page: 2

Date Filed: 01/29/2014 Entry ID: 4118291