                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-4306
                                       ___________

                              GEORGE E. JOHNSON, JR,
                                            Appellant

                                             v.

PHILADELPHIA HOUSING AUTHORITY; MICHAEL P. KELLY, Executive Director
              in their individual as well as their official capacity
                 ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2-11-cv-04572)
                     District Judge: Honorable Mitchell S. Goldberg
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 13, 2017
             Before: SHWARTZ, COWEN and FUENTES, Circuit Judges

                              (Opinion filed: June 14, 2017)
                                     ___________

                                        OPINION *
                                       ___________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
         George Johnson, Jr., proceeding pro se, appeals from the District Court’s order

denying his motion to reopen his case pursuant to Federal Rule of Civil Procedure

60(b). For the following reasons, we will affirm.

         Johnson was involved in an administrative proceeding before the Philadelphia

Housing Authority, after which he filed a pro se complaint pursuant to 42 U.S.C. § 1983

in the United States District Court for the Eastern District of Pennsylvania against the

Philadelphia Housing Authority and its Executive Director. Johnson charged the

defendants with perpetrating “fraud upon the court” that resulted in a series of adverse

procedural rulings and failures by the Philadelphia Court of Common Pleas prothonotary.

The District Court granted Johnson in forma pauperis status and, before the complaint

was served, sua sponte dismissed the action pursuant to 28 U.S.C. § 1915(e)(2)(B), as it

determined that it lacked subject matter jurisdiction pursuant to the Rooker-Feldman

doctrine. Johnson then filed a motion seeking leave to add the United States Department

of Housing and Urban Development as a defendant, as well motions for reconsideration

and relief from the judgment. These motions were denied and we affirmed the District

Court’s orders. Johnson v. Philadelphia Hous. Auth., 448 F. App’x 190, 191 (3d Cir.

2011).

         Five years after the District Court entered judgment, Johnson filed a motion

pursuant to Federal Rule of Civil Procedure 60(b), alleging that the judgment was void

due to fraud. The District Court denied the motion. Johnson appeals.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We review Rule 60(b)

dismissals, other than those under Rule 60(b)(4), for abuse of discretion; for Rule

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60(b)(4) dismissals, our review is plenary. Budget Blinds, Inc. v. White, 536 F.3d 244,

251 & n.5 (3d Cir. 2008). “A district court abuses its discretion when it bases its decision

upon a clearly erroneous finding of fact, an erroneous conclusion of law, or an improper

application of law to fact.” Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 2014) (citing Morris

v. Horn, 187 F.3d 333, 341 (3d Cir. 1999)).

       A motion for relief from judgment based on fraud must be filed not more than one

year after the judgment was entered. Fed. R. Civ. P. 60(c)(1). A Rule 60(b)(6) motion

must be brought within a reasonable time. Id. Johnson alleged that the defendants

colluded with the docket clerk in the District Court to avoid entering their appearance and

responding to Johnson’s complaint. Johnson claimed that the District Court’s judgment

entered in 2011 is therefore void. It is difficult to discern what Johnson asserts occurred

between the docket clerk and the defendants, but to the extent he complained of fraud, his

motion is untimely as it was brought over five years after judgment was entered. To the

extent Johnson’s motion is brought under Rule 60(b)(6), the motion was not brought

within a reasonable time because Johnson was aware of the factual basis for his claim in

2011. See, e.g., Moolenaar v. Gov’t of the V.I., 822 F.2d 1342, 1348 (3d Cir. 1987)

(Rule 60(b)(6) motion filed almost two years after judgment was not made within a

reasonable time). In sum, we perceive no abuse of discretion in the District Court’s

denial of Johnson’s motion as untimely to the extent the motion was brought pursuant to

Rules 60(b)(3) and 60(b)(6).

       Nor did the District Court err in determining that the motion was meritless. The

District Court determined that Johnson had failed to explain the basis for his fraud

                                              3
allegation. We agree. While Johnson contended that there was a conspiracy between the

defendants and the clerk, he presented no evidence of this. In his brief, Johnson argues

that a District Court order was not signed and that this supports his allegation of a

conspiracy; however, our review of the order in question reveals that the order was

electronically signed by the District Judge. Johnson also claimed that the clerk’s failure

to serve the defendants is evidence of their collusion. As we discussed in our prior

opinion, the Court independently identified a flaw in the complaint that, in its view,

rendered service (and response by the defendants) pointless. Therefore, relief from

judgment under Rules 60(b)(3) or 60(b)(6) would not be warranted.

       Finally, the District Court did not err in denying Johnson’s motion to the extent he

asserted that the judgment was void under Rule 60(b)(4). Johnson argued that the

judgment was void because the defendants had defaulted in the state court proceedings

and because the defendants failed to enter an appearance in the District Court. Again, the

defendants were not required to enter their appearance as the District Court sua sponte

dismissed Johnson’s complaint. Additionally, Johnson’s claim that the underlying state

court judgment is void, even if it were true, does not provide a basis to conclude that the

District Court’s judgment is void.

       In his brief, Johnson also argues that the defendants defaulted in the District Court

by failing to respond to his original complaint. This issue concerns rulings related to his

original civil action, but an appeal from the denial of Rule 60(b) relief does not bring up

the underlying judgment for review unless it is timely filed and tolls the time for appeal

under Rule 4(a)(4). See Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 161

                                              4
n.3 (3d Cir. 2004); Fed. R. App. P. 4(a)(4)(A)(vi). Johnson’s motion was filed five years

after the entry of judgment and clearly did not toll the time for appeal.

       Accordingly, we will affirm the order of the District Court.




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