Elmer Winters v. Patrick Lynch , 81 F.3d 162 ( 1996 )

81 F.3d 162

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Elmer WINTERS, Plaintiff-Appellant,
v.
Patrick LYNCH, et al., Defendants-Appellees.

No. 95-3668.

United States Court of Appeals, Sixth Circuit.

March 29, 1996.

1

Before: NORRIS and COLE, Circuit Judges, and HULL, District Judge.*

ORDER

2

Elmer Winters, an Ohio citizen, appeals pro se an order of the district court denying his motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b) in a civil rights action. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Winters filed a complaint in 1985 seeking $30 million and alleging that he had been subjected to a beating during his arrest in 1980. The action was dismissed as barred by the statute of limitations, and this court affirmed that decision. Winters v. Lynch, No. 87-3804, 1988 WL 90874 (6th Cir. Aug. 31, 1988). In 1995, Winters moved for relief from judgment, alleging that new evidence showed the statute of limitations had been tolled by his incarceration and incompetence. The district court denied the motion, as it was filed beyond the one-year period provided for Rule 60(b)(2) motions. In a previous order, this court denied a motion to proceed in forma pauperis filed by Winters, and he has now paid the filing fee.

4

Upon review, we conclude that the district court did not abuse its discretion in denying this motion for relief from judgment. See Lewis v. Alexander, 987 F.2d 392, 396 (6th Cir.1993). Motions under Rule 60(b)(2) for relief from judgment based on new evidence must be filed within one year of the underlying judgment. See McDowell v. Dynamics Corp. of America, 931 F.2d 380, 384 (6th Cir.1991). This motion was filed well beyond that period.

5

Accordingly, the district court's order is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.

*

The Honorable Thomas G. Hull, United States District Judge for the Eastern District of Tennessee, sitting by designation