                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           June 2, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-40631
                         Summary Calendar



DAVID RAY LEVERTON,

                                    Plaintiff-Appellant,

versus

JEFFREY POPE, Etc.; ET AL.,

                                    Defendants,

JEFFREY POPE, Lieutenant, Mark W. Stiles Unit;
JIMMI PITTS, Lieutenant, Mark W. Stiles Unit;
PATRICK ARNETT, SR., Police, Port Arthur Texas;
RUSSELL MCDONALD, Doctor of Osteopathy, Mark W.
Stiles Unit; ROBERT ASHWORTH, #1 FRANK CARPENTER,
#3, BRANDON NOLAN, #4,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:97-CV-397
                       --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     David Ray Leverton, Texas prisoner number 373652, appeals

from the July 19, 2001, denial of a Rule 60(b) motion in which he

sought relief from an order granting summary judgment in favor of

     *
        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that this opinion should not be published and is not precedent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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                                  -2-

Russell McDonald.   He also appeals from the magistrate judge’s

conclusion that his motion pursuant to FED. R. CIV. P. 59, filed

more than ten days after the entry of final judgment, must be

construed as a motion pursuant to FED. R. CIV. P. 60.   Finally, he

appeals the denial of the of FED. R. CIV. P. 60(b) motion

following a jury verdict for the defendants in this 42 U.S.C.

§ 1983 suit.   Also pending before this court is Leverton’s motion

to supplement the record on appeal.

      If necessary, this court must examine the basis of its

jurisdiction on its own motion.     Mosley v. Cozby, 813 F.2d 659,

660 (5th Cir. 1987).   A timely notice of appeal is a prerequisite

to the exercise of jurisdiction by this court.     Dison v. Whitley,

20 F.3d 185, 186 (5th Cir. 1994).    On April 24, 2003, Leverton

filed a notice of appeal from the July 19, 2001, denial of a Rule

60(b) motion in which Leverton sought relief from the grant of

summary judgment in favor of defendant Dr. Russell McDonald.

This notice of appeal, filed nearly two years after the denial of

the motion and the August 14, 2001, entry of the final judgment,

was untimely, and this court lacks jurisdiction over this appeal.

See Dison, 20 F.3d at 186.

      Leverton complains that the magistrate judge erred in

construing his FED. R. CIV. P. 59 motion for a new trial as a

motion for relief from the judgment pursuant to FED. R. CIV. P.

60.   Motions pursuant to FED. R. CIV. P. 59 must be filed within

10 days of entry, not service, of the judgment.     See FED. R. CIV.
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                                   -3-

P. 59(a), (b), (e).      Although Leverton filed a motion to extend

time to file a motion for a new trial, a district court is not

authorized to extend the time for filing such a motion.         See FED.

R. CIV. P. 6(b).   Finally, Leverton’s motion for a new trial did

not extend the time for filing a notice of appeal, as it was not

filed within ten days of the entry of the final judgment.            See

FED. R. APP. P. 4(a)(4)(A)(v)-(vi).

     Because Leverton did not file a timely notice of appeal from

the final judgment, this court will not address his contentions

regarding non-final orders and matters that do not fall under

FED. R. CIV. P. 60(b).    FED. R. CIV. P. 60(b) allows the district

court to relieve a party from a final judgment or order.         A

decision is final when it “ends the litigation on the merits and

leaves nothing for the court to do but execute the judgment.”

Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (internal

quotations and citation omitted).     Because a Rule 60(b) motion is

not a substitute for a timely appeal, this court declines to

address the issues Leverton raises that do not readily fit under

one of the grounds enumerated in Rule 60.      See Halicki v.

Louisiana Casino Cruises, Inc., 151 F.3d 465, 471 (5th Cir.

1998).   The matters Leverton raises in his brief that this court

declines to address include the denials of the: motion for

appointment of counsel, motion for a protective order, motion for

a restraining order, motion to withdraw consent to proceed before
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                                  -4-

a magistrate, and motion to supplement the witness list.      See

Coopers & Lybrand, 437 U.S. at 467; Halicki, 151 F.3d at 471.

     Leverton complains that the magistrate judge abused his

discretion in denying his August 31, 2001, motion for a new

trial.   Leverton has not met the requirements under FED. R. CIV.

P. 60(b)(2) for relief from the judgment based upon newly-

discovered evidence that he demonstrate (1) that he exercised due

diligence in obtaining the information and (2) that the evidence

is material and controlling and clearly would have produced a

different result if presented before the original judgment.      See

Government Fin. Servs. One Ltd. Partnership v. Peyton Place,

Inc., 62 F.3d 767, 770-71 (5th Cir. 1995).

     Pursuant to FED. R. CIV. P. 60(b)(3), Leverton must show by

clear and convincing evidence: (1) that the defendants engaged in

fraud or other misconduct and (2) that the misconduct prevented

him from fully and fairly presenting his case.   See id. at 772.

He has not shown that the defendants’ actions in delaying his

operation rose to a level of fraud or misconduct where the record

showed that he could walk normally, his knee was not swollen or

“grinding,” the joint had a full range of motion, and X-rays

detected no abnormalities.    See id.

     Finally, the magistrate judge did not abuse his discretion

in refusing to grant the motion pursuant to FED. R. CIV. P.

60(b)(6).   FED. R. CIV. P. 60(b)(6) allows a district court to “do

justice in a particular case when relief is not warranted by the
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                                -5-

preceding clauses.”   Government Fin. Servs., 62 F.3d at 773-74.

The “extraordinary circumstances” required to grant a FED. R. CIV.

P. 60(b)(6) motion are not present in this case.   See id.

     Finally, despite Leverton’s assertion to the contrary, the

magistrate judge was not required to provide Leverton with notice

of either the consequences of summary judgment or the right to

submit opposing affidavits.   See Martin v. Harrison County Jail,

975 F.2d 192, 193 (5th Cir. 1992).

     Leverton’s motion to supplement the record on appeal is

GRANTED.

     DISMISSED IN PART; AFFIRMED IN PART; MOTION GRANTED.
