
USCA1 Opinion

	




          February 7, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1512                                RICHARD A. MCEACHERN,                                Plaintiff, Appellant,                                          v.                            CORRECTIONS, ME COMMN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                            FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Richard A. McEachern on brief pro se.            ____________________            Andrew Ketterer,  Attorney General, and  Christopher C.  Leighton,            _______________                          ________________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                                                            -2-                      Per  Curiam.     On  September  2,  1992,   Richard                      ___________            McEachern, a  Maine state  prisoner, filed a  pro se  federal                                                          ___ __            civil rights action against Donald Allen, Commissioner of the            Maine Department of Corrections, and Martin Magnusson, Warden            of the Maine  State Prison.1  The  parties eventually reached                                       1            an  out-of-court settlement  agreement under  which McEachern            agreed  to  dismiss the  pending  lawsuit in  exchange  for a            transfer to a prison  in New Jersey.2  At the time, McEachern                                                2            was  housed at  Maine's  highest security  prison, the  Maine            Correctional Institution  in Warren (MCI-Warren).   On  March            25, 1994, the  parties filed a stipulation of  dismissal with            prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(ii).                      Following   the   dismissal,  McEachern   was  duly            transferred to a  New Jersey  prison.  On  February 3,  1995,            however, McEachern  filed a motion and  affidavit pursuant to            Fed.  R. Civ. P. 60(b)  to void the  settlement agreement and            reinstate  his lawsuit on the ground that he had been coerced            into  settling  his  case  by  the  "inhumane  and  punitive"                                            ____________________               1As amended, the complaint also names Deputy Warden Arthur               1            Kiskila as a defendant.               2The agreement  also provided that McEachern could request               2            the Maine Department  of Corrections  to provide  him with  a            Pine Tree Legal Assistance attorney should he need  access to            Maine legal  materials in connection with  any future actions            in Maine courts.                                           -2-                                         -2-            environment at MCI-Warren.3  The motion  was denied, and this                                      3            appeal followed.                      McEachern argues that his Rule 60(b) motion  should            have  been allowed because it  was filed within  one year and            set  forth  extraordinary  circumstances   warranting  relief            pursuant to Fed. R. Civ. P.  60(b)(6).  We disagree.  A party            seeking relief under any  provision of Rule 60(b) must  do so            within  a "reasonable  time."4   Fed. R.  Civ. P.  60(b); see                                         4                            ___            also  Planet Corp. v. Sullivan,  702 F.2d 123,  126 (7th Cir.            ____  ____________    ________            1983)  (explaining that  what  constitutes a  reasonable time            depends  on the facts of each case, taking into consideration            the interest in finality, the reason for delay, the practical            ability to  learn earlier  of  the grounds  relied upon,  and            prejudice to other parties).   McEachern failed to adequately            explain why, after being transferred to New Jersey, he waited                                            ____________________               3McEachern  also alleged,  as  an  additional  ground  for               3            reopening  the  dismissed  suit,  that  defendants failed  to            comply with their agreement  to provide him with a  Pine Tree            Legal  Assistance attorney.   McEachern  does not  renew this            argument on appeal, and we deem the issue waived.                 4Since McEachern filed his  motion within one year, we  do               4            not  need  to  decide  which   provision  of  Rule  60(b)  is            applicable.   We note, however, that to the extent the motion            is grounded  on alleged misconduct  of an  adverse party,  it            properly should have been brought pursuant to Fed. R. Civ. P.            60(b)(3).                                           -3-                                         -3-            over  ten months  before seeking  relief based  on coercion.5                                                                        5            We think this delay was unreasonable.                      We add that  McEachern did not claim  that the ill-            treatment he allegedly received at MCI-Warren was directed at            forcing him to settle his  lawsuit.  Moreover, the conditions            of confinement  he described in  meaningful detail--including            the  number of hours spent  in his cell,  the restrictions on            activities, the requirement that he wear prison clothing, the            prohibition on  contact visits, and  the lack of  a canteen--            fall within  constitutional limits.   Cf. Rhodes  v. Chapman,                                                  ___ ______     _______            452 U.S.  337, 347 (1981) (observing  that restrictive, harsh            conditions are  part of  the penalty that  criminal offenders            pay  for   their  offense   against  society).     Under  the            circumstances,  we cannot  say  that the  district court  was            required to hold a  hearing or that it abused  its discretion            in denying the requested relief.  See Hoult v. Hoult, 57 F.3d                                              ___ _____    _____            1, 3  (1st  Cir. 1995)  (stating that  district courts  enjoy            broad discretion  in deciding motions under Rule 60(b) and we            review such ruling only for abuse of that discretion).                      Affirmed.                      _________                                            ____________________               5Although McEachern  vaguely alludes, in his affidavit, to               5            "lingering  psychological damage"  allegedly  caused  by  his            treatment at  MCI-Warren, his  affidavit reveals that  he had            been  actively litigating other matters since his transfer to            New Jersey.                                            -4-                                         -4-
