                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 15-1667
                                      ___________

                                    WADE KNIGHT,
                                                Appellant
                                         v.

      JONATHAN KAMINSKI; TROY WILLIAMSON; GEORGE C. NYE, III;
    MARK G. GULA; LOUIS CAPRIO; DAVID ANDINO; STEVEN J. VALENCIK;
                  MICHAEL A. QUIJADA; MICHAEL ORN
                 ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 3-05-cv-00018)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 26, 2016

              Before: JORDAN, RESTREPO and BARRY, Circuit Judges

                           (Opinion filed: September 28, 2016)
                                      ___________

                                       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.
       Pro se appellant Wade Knight appeals the District Court’s order denying his

motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure. For the reasons

detailed below, we will vacate the District Court’s order and remand for further

proceedings.

       Knight, a federal inmate, filed a complaint in the District Court in 2005, raising

claims against various prison employees under Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act

(FTCA). Only the FTCA claim is relevant here. In this claim, Knight alleged that

several prison guards assaulted him, causing him to suffer physical and emotional

injuries. In September 2007, the District Court granted summary judgment to the

defendants. The District Court explained that in Pooler v. United States, 787 F.2d 868

(3d Cir. 1986), we had interpreted the FTCA to waive the Government’s immunity “only

in those cases in which a law enforcement or investigative officer commits one of the

enumerated intentional torts ‘while executing a search, seizing evidence, or making an

arrest.’” D.C. dkt. #118 at pg. 18 (quoting Pooler, 787 F.2d at 872). The District Court

concluded that, “although the purported conduct in the present case is troubling,” the

defendants were entitled to summary judgment because it “did not transpire during one of

the enumerated acts recognized under Pooler.” Id. at pg. 20.

       Knight appealed. He argued, among other things, that Pooler had been wrongly

decided. See Appellant’s Motion (May 11, 2009). We affirmed. See Knight v.

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Kaminski, 331 F. App’x 901 (3d Cir. 2009) (non-precedential). Like the District Court,

we held that Knight’s FTCA claim failed because “the alleged assault did not arise out of

conduct during an arrest, search, or seizure.” Id. at 905 (citing Pooler, 787 F.2d at 872).

Knight filed a petition for certiorari to the Supreme Court, which the Supreme Court

denied in 2009.

       Subsequently, the Supreme Court issued Millbrook v. United States, 133 S. Ct.

1441 (2013), in which it overruled Pooler. Focusing on the FTCA’s plain language, the

Supreme Court held that “there is no basis for concluding that a law enforcement

officer’s intentional tort must occur in the course of executing a search, seizing evidence,

or making an arrest in order to subject the United States to liability.” Id. at 1445.

       About a month after the Supreme Court issued its decision in Millbrook, Knight

filed a motion under Rule 60(b)(6), arguing that Millbrook established that the District

Court had erred in granting summary judgment to the defendants. The District Court

denied Knight’s Rule 60(b)(6) motion, holding that the Supreme Court’s decision in

Millbrook, “even if applied retroactively, does not apply to cases already closed.” D.C.

dkt. #177 at pg. 4. Knight filed a timely notice of appeal to this Court.

       We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s

order for abuse of discretion, which “may be found when ‘the district court’s decision

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

application of law to fact.’” Reform Party of Allegheny Cty. v. Allegheny Cty. Dep’t of

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Elections, 174 F.3d 305, 311 (3d Cir. 1999) (en banc) (quoting Int’l Union, UAW v.

Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir. 1987)).

       We conclude that the District Court committed a legal error here. The District

Court’s blanket conclusion that Knight’s Rule 60(b)(6) motion lacked merit because it

relied on an intervening Supreme Court decision is contrary to our decision in Cox v.

Horn, 757 F.3d 113 (3d Cir. 2014), where we stressed that we “have not embraced any

categorical rule that a change in decisional law is never an adequate basis for Rule

60(b)(6) relief.” Id. at 121. Instead, we explained in Cox, “we have long employed a

flexible, multifactor approach to Rule 60(b)(6) motions, including those built upon a

post-judgment change in the law, that takes into account all the particulars of a movant’s

case.” Id. at 122. At bottom, the question is whether the movant has established that

“extraordinary circumstances” exist. Id. Thus, rather than simply rejecting Knight’s

Rule 60(b)(6) motion on the ground that it relied on a newly issued Supreme Court

decision, the Court should have conducted the type of multi-factor analysis that we

described in Cox.

       The Government argues that we should nevertheless rule that Knight failed to

demonstrate the requisite exceptional circumstances. However, we have explained that

“[t]he grant or denial of a Rule 60(b)(6) motion is an equitable matter left, in the first

instance, to the discretion of a district court.” Id. at 124. Therefore, we will vacate the




                                              4
District Court’s order and remand the matter to that Court to determine whether Knight

has made the necessary showing.




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