Clarence Demetrius Tate v. Roger D. Bear

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 27, 2005
No. 04-11188 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-08980-CV-KLR
CLARENCE DEMETRIUS TATE,
Plaintiff-Appellant,
versus
ROGER D. BEAR,
STEPHEN J. BERLINSKY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 27, 2005)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Clarence Demetrius Tate, a California prisoner, appeals the
district court’s denial of his Fed.R.Civ.P. 60(b)(1) motion for relief from an earlier
order dismissing his civil complaint. On appeal, Tate argues that the district court
abused its discretion by denying his Rule 60(b) motion as untimely because, under
Rule 60(b)(6), relief may be granted for any reason justifying relief and need not
be requested within a specific time period. Tate also argues that the district court
abused its discretion by not allowing him to withdraw funds on a monthly basis
from his trust account in order to satisfy court filing fees. He further challenges
the district court’s denial of his original civil complaint.
We review the district court’s denial of relief under Rule 60(b) for an abuse
of discretion. Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993).
Under Rule 60(b)(1), a party may file a motion for relief from a judgment or order
based on mistake, inadvertence, surprise, or excusable neglect within one year
from the date when the district court entered the judgment or order. Fed.R.Civ.P.
60(b)(1). Under Rule 60(b)(6), a party may move for relief from judgment within
a reasonable time, for “any other reason justifying relief from the operation of the
judgment.” Fed.R.Civ.P. 60(b). We have indicated that relief under Rule 60(b)(6)
“is an extraordinary remedy which may be invoked only upon a showing of
exceptional circumstances.” Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th
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Cir. 1984); see also Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th
Cir. 2000).
Because the record demonstrates that Tate’s motion was filed nearly two
years after the district court dismissed his original complaint, we conclude that the
district court did not abuse its discretion by denying the motion as untimely.
Accordingly, we affirm the district court’s order.
AFFIRMED.
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