                                                           NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                         No. 16-1566
                                        ____________

                               MICHAEL EVAN KEELING,
                                                  Appellant

                                               v.

                          ATTORNEY GENERAL FOR THE
                       COMMONWEALTH OF PENNSYLVANIA
                        __________________________________

                      On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civ. No. 12-cv-02720)
                       District Judge: Honorable Harvey Bartle, III
                        __________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   September 8, 2016

          Before: AMBRO, GREENAWAY, JR., and GARTH, Circuit Judges

                             (Opinion filed: October 25, 2016)
                                      ____________

                                         OPINION*1
                                        ____________



 The Honorable Leonard I. Garth passed away on September 22, 2016 after the submission date,
but before the filing of the opinion. This opinion is filed by a quorum of the panel pursuant to
28 U.S.C. § 46(d) and Third Circuit I.O.P. Chapter 12.
1
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Michael Evan Keeling appeals from orders of the District Court denying his

motion to reopen the judgment and motion for reconsideration. For the reasons that

follow, we will affirm.

       On May 17, 2012, Keeling filed an in forma pauperis civil rights action, 42 U.S.C.

§ 1983, against Linda Kelly, the former Attorney General of Pennsylvania. Kelly filed a

motion to dismiss the complaint on multiple grounds pursuant to Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). The District Court granted that motion, ruling that no

case or controversy existed since Kelly had no involvement with any of the allegations

contained in the complaint. Keeling filed a motion for reconsideration, Fed. R. Civ. P.

59(e), requesting permission to replace Kelly with a new defendant. He identified the

police officers and prosecutors involved in his arrest and conviction as possible

replacements. The District Court denied the motion.

       Keeling then filed a motion for relief from the judgment under Rule 60(b)(1) or

60(b)(6), Fed. R. Civ. P., again requesting permission to replace Kelly with the police

officers and prosecutors. The District Court denied that motion as well. Keeling timely

appealed the denial of his Rule 60(b) motion. On August 12, 2014, we summarily

affirmed, concluding that the District Court did not abuse its discretion because Keeling’s

proposed amendment would have been futile, see Keeling v. Attorney General,

Commonwealth of Pa., 575 F. App’x 16 (3d. Cir. 2014) (Keeling I). We noted that

Keeling claimed that his public defenders had been constitutionally ineffective in his


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defense, but that public defenders are not state actors and thus are not subject to § 1983

liability. Id. at 17 (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981)). We noted

that Keeling argued that his Fourth Amendment rights were violated when he was

arrested in November 1994, but that the statute of limitations for a § 1983 claim arising in

Pennsylvania is only two years and had long since expired, id. at 18 (citing Wallace v.

Kato, 549 U.S. 384, 397 (2007)). We noted that, to the extent that success on Keeling’s

Fourth Amendment claim would imply the invalidity of his conviction, which had never

been invalidated, it was barred by the favorable termination requirement of Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994). Id. Last, we noted that, to the extent that

Keeling was seeking to vacate his conviction and secure his release from prison, he

would have to rely on a petition for writ of habeas corpus, 28 U.S.C. § 2254, rather than a

civil rights action, id. (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).

Accordingly, we reasoned, naming a different defendant would not have saved Keeling’s

complaint, and thus the District Court correctly denied him leave to amend.

       At issue in this appeal, on December 23, 2015, Keeling filed another Rule 60(b)

motion, pursuant to subparagraphs (1), (3), and (6), in his civil rights case. Keeling

argued that the District Court should reconsider its denial of his original Rule 60 motion

on the basis of our 2014 decision in Cox v. Horn, 757 F.3d 113, 124-26 (3d Cir. 2014)

(change in decisional law in conjunction with equitable considerations could suffice to

entitle habeas petitioner to Rule 60(b) relief). In an order entered on January 11, 2016,

the District Court denied the Rule 60 motion as untimely filed. Keeling then filed a



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timely motion for reconsideration, Fed. R. Civ. P. 59(e). In an order entered on February

26, 2016, the District Court denied reconsideration.

       Keeling appeals. We have jurisdiction under 28 U.S.C. § 1291. We review the

District Court’s order denying a Rule 60(b) motion for relief from judgment for an abuse

of discretion. See Cox, 757 F.3d at 118. An order denying a Rule 59(e) motion for

reconsideration is also reviewed for an abuse of discretion. See Long v. Atlantic City

Police Dep’t, 670 F.3d 436, 446 (3d Cir. 2012). In his pro se brief Keeling argues that

the District Attorney, the Philadelphia Police Department, and the Public Defenders’

Office deprived him of his constitutional rights in connection with his prosecution and

conviction; that naming the wrong defendant is curable by way of an amendment; that

Cox authorizes the filing of his latest Rule 60(b) motion; and that the ballistics evidence

used to convict him was unreliable, see Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993).

       We will affirm. The District Court did not abuse its discretion in denying

Keeling’s Rule 60 motion as untimely filed. Rule 60(c)(1), Fed. R. Civ. P., provides that

a “motion under Rule 60(b) must be made within a reasonable time -- and for reasons (1),

(2), and (3) no more than a year after the entry of the judgment or order” which the

movant seeks to reopen. Judgment was entered in Keeling’s civil rights case in an order

entered on March 13, 2013, when the District Court, after granting Kelly’s motion to

dismiss, denied Keeling’s timely filed motion for reconsideration. Keeling’s December

2015 Rule 60(b) motion was not filed within one year of the District Court’s judgment.



                                             4
Therefore, he cannot obtain relief from that judgment pursuant to subsections (1) and (3)

of Rule 60, as the District Court correctly held.

       A motion under Rule 60(b)(6), which only applies “in cases evidencing

extraordinary circumstances,” must still be made “within a reasonable time.” Stradley v.

Cortez, 518 F.2d 488, 493 (3d Cir. 1975). Keeling asserts that Cox justifies the timing of

his Rule 60(b)(6) motion, and we note that Cox was decided on August 7, 2014, our

mandate issued on September 3, 2014, and the United States Supreme Court denied

certiorari on March 23, 2015. Cox, however, involved a Rule 60(b)(6) motion filed in the

context of a habeas corpus proceeding, see Norris v. Brooks, 794 F.3d 401, 405 (3d Cir.

2015), cert. denied, 136 S. Ct. 1227 (2016), not a civil rights action, and thus does not

justify the timing of Keeling’s Rule 60(b)(6) motion. See Moolenaar v. Gov’t of Virgin

Islands, 822 F.2d 1342, 1348 (3d Cir. 1987) (Rule 60(b)(6) motion filed almost two years

after District Court’s judgment was not made within reasonable time).

       Keeling’s motion for reconsideration was properly denied because he did not show

an intervening change in the law, new evidence, or the need to correct a clear error of

law. See Max’s Seafood Café v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999).

       For the foregoing reasons, we will affirm the orders of the District Court denying

Keeling’s Rule 60 motion and motion for reconsideration.




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