                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 27, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 LLOYD VICTOR HAYNES,

               Plaintiff - Appellant,                   No. 12-1277
          v.                                           (D. Colorado)
 RYAN MEMMEN; UNITED STATES                (D.C. No. 1:03-CV-00577-RBJ-MEH)
 OF AMERICA,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, EBEL, and MURPHY, Circuit Judges.


      Prisoner Lloyd Victor Haynes sued Ryan Memmen and the United States in

the United States District Court for the District of Colorado, seeking damages for

injuries he sustained in an automobile collision while being transported by the

government. As a sanction for Haynes’s failure to respond to discovery requests,

the court dismissed the action. More than seven years later, Haynes sought to set



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
aside the dismissal on the grounds of fraud on the court, see United States v.

Beggerly, 524 U.S. 38, 45 (1998); Fed. R. Civ. P. 60(d)(3), and the district

judge’s failure to disqualify himself, see 28 U.S.C. § 455. The court denied

relief, and Haynes, proceeding pro se, appeals the denial. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm.

I.    BACKGROUND

      On April 4, 2003, Haynes filed a complaint against Memmen, Steve Bush,

and the United States Department of Justice, alleging that he sustained injuries

when Bush, a government employee, negligently operated the government-owned

vehicle in which Haynes was a passenger, causing a collision with a vehicle

negligently operated by Memmen. An amended complaint named as a defendant

the United States in place of Bush and the Department of Justice. See id.

§ 2679(d)(1) (government shall be substituted as party defendant in suit against

government employee certified to have been acting within scope of his

employment).

      On March 31, 2004, the government filed a motion to compel Haynes to

respond to its request for production of documents. The magistrate judge ordered

a response by April 16. Shortly thereafter, Haynes’s attorney, Terry Rector, filed

a motion to withdraw as counsel, explaining that he could not locate or contact

Haynes and that he was “unable to represent [Haynes] competently and zealously

under these circumstances.” R., Vol. 1, tab 46 at 2. On April 16, the deadline for

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Haynes to respond to the motion to compel, the court granted Rector’s motion to

withdraw, noting that Haynes would be “responsible for complying with all future

court deadlines in this case.” Id., tab 48 at 1. Haynes did not respond to the

motion to compel. On June 21, 2004, the district court dismissed the action.

      The record reflects no further activity in the case until March 12, 2007,

when Haynes filed a “Motion for Status Report,” id., Vol. 2 at 6, followed two

months later by an additional pleading seeking a response to his March 12

motion. The district court mailed to the address on Haynes’s most recent

pleadings a copy of the order dismissing the case.

      In 2007 and 2008 Haynes twice attempted to reopen the case. First, he

filed a pro se “Motion to Proceed with Complaint,” id. at 19, asserting that he had

not received notice of the June 2004 dismissal and blaming Rector, his former

attorney, for the failure to pursue his claims properly. When the district court did

not rule on that motion, he filed a Rule 60(b) motion for relief from the dismissal,

raising similar arguments. The magistrate judge recommended that the Rule

60(b) motion be denied because it was not “made within a reasonable time,” Fed.

R. Civ. P. 60(c)(1), and because the allegations in the motion did not warrant

relief. The district court adopted the magistrate judge’s recommendation and

denied relief on August 25, 2008.

      On September 9, 2009, Haynes, now represented by an attorney, filed a

motion for relief from the dismissal of his claim, his third attempt to reopen the

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case. The pleading repeated the arguments from his two previous postjudgment

motions. It also asserted that counsel for the government had fraudulently

misrepresented to the court that Haynes had not answered the government’s

interrogatories, and that Haynes’s hypothyroidism (caused by the traffic accident)

had prevented him from properly prosecuting the action. In November 2009 the

district court again denied relief.

      On January 9, 2012, Haynes, once again proceeding pro se, filed a pleading

styled simply “Rule 60(d)(3).” R., Vol. 2 at 135; see Fed. R. Civ. P. 60(d)(3)

(stating that Rule 60 does not limit a court’s authority to “set aside a judgment for

fraud on the court”). It alleged that counsel for the government had committed

fraud on the court by misrepresenting that Haynes had failed to comply with his

discovery obligations when he had, in fact, complied. It also raised as an

independent ground for relief that the district judge had failed to disqualify

himself despite personal bias and a financial interest in the case. See 28 U.S.C.

§ 455(a), (b)(1), (b)(4). To support this claim, Haynes asserted that court

employees are paid by the United States Marshals Service (the employer of

former defendant Bush), that the judge works with marshals, and that the court

failed to provide him with court documents relating to the dismissal of his case.

The court summarily denied relief.

      Haynes appeals the rejection of his latest attempt to reopen the case. His

brief on appeal raises instances of alleged fraud that, he argues, justify relief

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under Fed. R. Civ. P. 60(d)(3). And in support of his claim under 28 U.S.C.

§ 455, he incorporates by reference a “Motion for Change of Venue/Motion for

Disqualification of Judge” filed in the district court, in which he argued that

earlier rulings by the court, along with the relationship between the court and

Bush, demonstrate the judge’s partiality. R., Vol. 2 at 171.

II.   DISCUSSION

      A.     Fraud on the Court

      Haynes’s brief in this court attempts to support his fraud-on-the-court claim

by pointing to alleged fraud by Rector, his former attorney, and by the court

itself. But Haynes’s motion in the district court alleged only a single instance of

fraud: the failure by the attorney for the government to notify the court that

Haynes had complied with discovery requests. The motion made no reference to

Rector and pointed to no instances of alleged fraud by the court. We decline to

review issues not raised below. See Walters v. Wal-Mart Stores, Inc., 703 F.3d

1167, 1173 (10th Cir. 2013).

      We likewise decline to consider the only claim of fraud on the court that

Haynes presented to the district court: fraud by the government’s attorney. By

not raising this claim on appeal, he has waived it. See Lindstrom v. United States,

510 F.3d 1191, 1196 (10th Cir. 2007).

      B.     District Judge’s Failure to Disqualify Himself




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       Haynes also asserts that the district judge was obligated under 28 U.S.C.

§ 455 to disqualify himself but failed to do so. Because Haynes does not suggest

any other avenue for setting aside a judgment on this ground, we assume that he

is proceeding under Fed. R. Civ. P. 60(b)(6), which permits setting aside a

judgment for “any other reason that justifies relief.” Such a motion must,

however, be “made within a reasonable time.” Fed. R. Civ. P. 60(c)(1), see also

United States v. Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000) (“[Section] 455(a)

motions for recusal must be timely filed. Although this circuit has not attempted

to define the precise moment at which a § 455(a) motion to recuse becomes

untimely, our precedent requires a party to act promptly once it knows of the facts

on which it relies in its motion.” (citation and internal quotation marks omitted)).

All the alleged facts upon which Haynes relies for his claims of bias were readily

available at the time the action was dismissed in June 2004. By waiting over

seven years, Haynes failed to act promptly in seeking recusal.

III.   CONCLUSION

       We AFFIRM the district court’s judgment. We DENY Haynes’s motion to

proceed in forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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