Rafael A. Llovera Linares v. Broward County Sheriff's Office

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15416 ELEVENTH CIRCUIT
NOVEMBER 9, 2011
Non-Argument Calendar
________________________ JOHN LEY
CLERK
D.C. Docket No. 0:06-cv-61082-WPD
RAFAEL A. LLOVERA LINARES,
Plaintiff-Appellant,
versus
BROWARD COUNTY SHERIFF'S OFFICE, et al.,
Defendants,
OFFICER FELIX VASCONEZ,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 9, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Rafael Linares appeals pro se the denial of his motion for relief from a civil
judgment. Fed. R. Civ. P. 60(b)(6). Linares challenges a judgment entered in July
2008 in favor of the Broward County Sheriff’s Office and Felix Vasconez, which
this Court affirmed in September 2009. We affirm.
The district court did not abuse its discretion by denying Linares’s motion.
Linares argues that the district court erred when it failed to serve a witness before
trial and by denying Linares’s motion for a continuance to serve subpoenas, but
this “‘appeal does not bring up the underlying judgment for review.’” Cavaliere v.
Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993) (quoting Glass v. Seaboard
Coast Line R.R. Co., 714 F.2d 1107, 1109 (11th Cir. 1983)). Linares also argues
about the insufficiency of the evidence, but this Court refused on appeal to review
the issue “in the absence of a trial transcript,” Linares v. Broward Cnty. Sheriff’s
Office, No. 08-14674, slip op. at 11 (11th Cir. Sept. 8, 2009), and Linares cannot
“‘use . . . [his] Rule 60(b) motion as a substitute for a proper and timely appeal,’”
Cavaliere, 996 F.2d at 1115 (quoting Burnside v. E. Airlines, Inc., 519 F.2d 1127,
1128 (5th Cir. 1975)).
We AFFIRM the denial of Linares’s motion for relief.
2