UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JUAN CARLOS ESCOBAR; LETICIA
ESCOBAR,
Plaintiffs-Appellants,
                                                                      No. 95-3185
v.

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-95-41-3-MU)

Submitted: February 28, 1997

Decided: March 19, 1997

Before HALL and WILKINS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellants. Mark T.
Calloway, United States Attorney, James M. Sullivan, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Juan Escobar and Leticia Escobar appeal from the district court's
orders dismissing his complaint under Fed. R. Civ. P. 12(b)(6) and
denying his motion for reconsideration. We affirm.

Juan Escobar (hereinafter Escobar) was arrested for violating
cocaine trafficking laws and taken into custody by the United States
Customs Service agents for interrogation. While handcuffed and in
custody, Escobar fell over a stairwell guardrail from the second floor
to the first floor, causing severe injuries. The Escobars filed an action
under the Federal Torts Claim Act ("FTCA"), which the district court
dismissed for failure to state a claim upon which relief could be
granted. The Escobars then filed a motion for reconsideration under
Fed. R. Civ. P. 60(b), which the district court denied.

This Court reviews a Rule 12(b)(6) dismissal de novo and a dis-
missal of a motion for reconsideration for abuse of discretion. See
Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995); National Org. for
Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir. 1995). Under
the FTCA, the government is only liable if a private individual would
be liable under local law. 28 U.S.C. § 1346(b) (1994). To sustain a
claim of actionable negligence in North Carolina,"plaintiff must
prove (1) defendant owed a duty to plaintiff, (2) defendant failed to
exercise proper care in the performance of that duty, and (3) the
breach of that duty was the proximate cause of plaintiff's injury,
which a person of ordinary prudence should have foreseen as proba-
ble under the conditions as they existed." Westbrook v. Cobb, 411
S.E.2d 651, 653 (N.C. 1992); see Crinkley v. Holiday Inns, Inc., 844
F.2d 156, 160 (4th Cir. 1988). The absence of any one element will
defeat a negligence action. Westbrook, 411 S.E.2d at 653. Escobar
failed to make sufficient allegations that the arresting agents breached
their duty to Escobar because his injuries were not foreseeable to the

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ordinarily prudent person.* See Helmly v. Bebber, 335 S.E.2d 182,
185 (N.C. 1985).

Escobar's Rule 60(b) motion raised three issues, all of which were
considered by the district court during the hearing on the motion to
dismiss. Escobar did not show meritorious defense, a lack of unfair
prejudice to the opposing party, or exceptional circumstances. Dowell
v. State Fire & Cas. Auto Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993)
(quoting Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984)).
Escobar merely asked the court to change its mind. Therefore, we find
that the district court did not abuse its discretion in denying the
motion.

Accordingly, we affirm the district court's order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED
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*Escobar's allegation that an agent held him over a guardrail and
dropped him, alluded to in his third complaint and, in more detail, in his
appeal brief, is contrary to the allegations raised in his FTCA claim let-
ter, first Complaint, and First Amended Complaint. The district court did
not err in refusing to permit the amendment proffered in Escobar's third
complaint (also styled First Amended Complaint), and it properly refused
to consider this claim because it was not included in the previous com-
plaints.

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