     Case: 12-10109       Document: 00512086456         Page: 1     Date Filed: 12/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 17, 2012
                                     No. 11-10989
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

SHELBY WAYNE FIFE,

                                                  Plaintiff - Appellant

v.

NFN HENSLEY, Health and Medical Administrator; SHANE MARTINEZ,
Health and Medical Administrator; BEN LUONG, Physician-Medical Director,
Preston E. Smith Unit,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:06-CV-203


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Shelby Wayne Fife, Texas prisoner # 1039740, appeals
the district court’s denying his motion for relief from judgment, in which he
relies on Federal Rules of Civil Procedure 9(b), 60(b)(3), 60(b)(6), and 60(d)(3).
In December 2007, the district court granted summary judgment for defendants
in Fife’s underlying pro se proceeding under 42 U.S.C. § 1983. Our court


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 11-10989

affirmed in February 2009. Fife v. Hensley, No. 08-10062, 2009 WL 348823 (5th
Cir. 12 Feb. 2009) (unpublished). The post-judgment motion at issue was filed
in September 2011.
      Fife’s reliance on Federal Rule of Civil Procedure 9(b) is misplaced; that
rule requires a claim of fraud or mistake to be plead with particularity.
Although an action may be dismissed for failure to state a claim if the pleading
does not comply with this rule, it does not provide an independent basis to grant
a post-judgment motion such as Fife’s. E.g., United States ex rel. Williams v.
Bell Helicopter Textron, Inc., 417 F.3d 450, 453-54 (5th Cir. 2005) (affirming
dismissal of complaint under FED. R. CIV. P. 12(b)(6) for failure to state a claim
because complaint did not meet heightened pleading standard of Rule 9(b)).
      Denials of Rule 60(b) motions are reviewed for abuse of discretion. E.g.,
Matter of Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.
1984). A Rule 60(b)(3) motion must be made “no more than a year after the
entry of the judgment or order or the date of the proceeding”; and a Rule 60(b)(6)
motion must be made “within a reasonable time”. FED. R. CIV. P. 60(c)(1).
      Rule 60(b)(3) allows relief from a judgment to be granted on the basis of
fraud, misrepresentation, or misconduct by the opposing party. Fife contends
Dr. Luong created false records and attempted to defraud the court regarding his
treatment of Fife and the nature of his claims. Because Fife’s Rule 60(b)(3)
motion was filed more than one year after the entry of judgment, it is untimely.
FED. R. CIV. P. 60(c)(1).
      Fife also relies on Rule 60(d)(3), which states that Rule 60 does not limit
a court’s power to set aside a judgment for fraud on the court. A motion under
Rule 60(d)(3), however, requires a higher level of misconduct, such as “an
unconscionable plan or scheme which is designed to improperly influence the
court in its decision”. Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872
(5th Cir. 1989) (citation omitted).    Because Rule 60(d)(3) is without time
limitation, “only the most egregious misconduct . . . will constitute fraud on the

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                                    No. 11-10989

court”. Jackson v. Thaler, 348 F. App’x 29, 34 (5th Cir. 2009) (quoting Rozier v.
Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978).                Fife asserts that
subsequent medical reports from other prison doctors and an outside physician
establish Dr. Luong’s fraud. These reports instead demonstrate a disagreement
over medical treatment, and do not show that Dr. Luong engaged in an
“unconscionable plan or scheme” to defraud the court. Id.
      Rule 60(b)(6) provides that a court may grant relief for “any other reason
that justifies relief”; however, “[t]he reason for relief . . . cannot be the reason for
relief sought under another subsection of 60(b)”. Hesling v. CSX Transp., Inc.,
396 F.3d 632, 643 (5th Cir. 2005). Thus, to the extent Fife contends Dr. Luong’s
alleged fraud justifies relief under Rule 60(b)(6), this contention is unavailing.
E.g., id. To the extent he contends the district court’s failure to appoint counsel
or an independent medical expert justifies relief under Rule 60(b)(6), Fife has not
shown this claim was raised “within a reasonable time”. FED. R. CIV. P. 60(c)(1).
      AFFIRMED.




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