           Case: 12-14061   Date Filed: 06/13/2013   Page: 1 of 5


                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14061
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:10-cv-20094-CMA

GLEN TOWNSEND,


                                                            Plaintiff-Appellant,

                                  versus

VETERANS AFFAIRS MEDICAL CENTER,
VETERANS AFFAIRS REGIONAL OFFICE,


                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (June 13, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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      Glen Townsend, proceeding pro se, appeals the district court’s denial of his

motion for reinstatement of his medical malpractice complaint following the

district court’s sua sponte dismissal of his complaint. Townsend visited the

Veterans Affairs Medical Center (VAMC) in Kansas City, Missouri in 1999, where

he was diagnosed with tuberculosis by a VAMC doctor. Townsend contends that

the VAMC doctor declined to treat him for tuberculosis at that time and that the

doctor told him that he should not experience any future medical emergencies. In

2002, Townsend visited the VAMC in San Francisco, California and received

treatment for scar tissue in his lungs that had developed as a result of tuberculosis.

Townsend filed his complaint for failure to treat a serious medical condition

against the VAMC on January 12, 2010. On appeal, Townsend argues that his

failure to comply with 28 U.S.C. § 2401(b)’s requirements for tort claims against

the United States was excusable and, based on newly discovered evidence, the

district court should have reconsidered its order dismissing his complaint.

      We review a district court’s denial of relief under Federal Rule of Civil

Procedure 60(b) for abuse of discretion. Waddell v. Hendry Cnty. Sheriff’s Office,

329 F.3d 1300, 1309 (11th Cir. 2003). An appeal from the denial of a Rule 60(b)

motion is limited to the denial of that motion and does not raise issues in the

underlying judgment for review. Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins.

Co., 198 F.3d 1332, 1338 (11th Cir. 1999).


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      Rule 60(b) provides for relief from judgment on numerous grounds,

including: “(1) mistake, inadvertence, surprise, or excusable neglect” and “(2)

newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ. P.

60(b)(1)–(2). “Excusable neglect” under Rule 60(b)(1) generally encompasses

situations where a party fails to comply with a filing deadline due to negligence.

United States v. Davenport, 668 F.3d 1316, 1324 (11th Cir.), cert denied 132 S. Ct.

2731 (2012). We employ a five-part test to determine entitlement to relief based

on newly discovered evidence under Rule 60(b)(2), which requires:

      (1) the evidence must be newly discovered since the trial [or final
      judgment or order]; (2) due diligence on the part of the movant to
      discover the new evidence must be shown; (3) the evidence must not
      be merely cumulative or impeaching; (4) the evidence must be
      material; and (5) the evidence must be such that a new trial [or
      reconsideration of the final judgment or order] would probably
      produce a new result.

Waddell, 329 F.3d at 1309.

      Under 28 U.S.C. § 2401(b), “[a] tort claim against the United States shall be

forever barred unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues or unless action is begun within six

months after . . . notice of final denial of the claim by the agency.” “It is

undisputed that under section 2401(b), a tort claim must be presented to the

appropriate federal agency within two years after the claim accrues and the lawsuit


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must be commenced within six months after the receipt of a final agency decision.”

Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001) (emphasis in

original).

      Turning to the facts of this case, we construe Townsend’s self-styled

“motion for reinstatement” as a motion for relief from the order dismissing his

complaint under Rule 60(b). See Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th

Cir. 1997) (per curiam) (“A post-judgment motion may be treated as made

pursuant to either Fed. R. Civ. P. 59 or 60—regardless of how the motion is styled

by the movant—depending on the type of relief sought.”).

      Townsend’s claim is barred by 28 U.S.C. § 2401(b). The VAMC diagnosed

Townsend with tuberculosis in 1999, and a VAMC doctor informed Townsend that

tuberculosis had damaged his lungs in 2002. Townsend filed his complaint in

January 2010. Townsend made no showing that, after he became aware of the

damage to his lungs, his failure to comply with 28 U.S.C. § 2401(b) by almost six

years was excusable. The district court did not abuse its discretion in declining to

reconsider its order on this basis. Further, because Townsend’s newly discovered

evidence would not alter the basis for the district court’s dismissal, we decline to

address whether the evidence was otherwise sufficient to merit relief under Rule

60(b)(2). See Waddell, 329 F.3d at 1311 (holding that the district court did not

abuse its discretion in denying the movant’s motion under Rule 60(b)(2), in part


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because the movant’s newly discovered evidence would not change the outcome in

the underlying case). Accordingly, we affirm.

      AFFIRMED. 1




      1
          Townsend’s motion for judgment on the pleadings is DENIED.
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