UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID BRIAN NEWTON,
Plaintiff-Appellant,

v.                                                                    No. 95-7090

SAM BUFORD,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CA-89-6)

Submitted: November 21, 1995

Decided: May 14, 1996

Before WILKINSON, Chief Judge, and NIEMEYER and
MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

C. Gary Triggs, C. GARY TRIGGS, P.A., Morganton, North Caro-
lina, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant David Brian Newton appeals the district court's judg-
ment denying his Fed. R. Civ. P. Rule 60(b) motion to set aside a
judgment, and to appoint a different judge to the case. Finding no
error, we affirm.

Newton originally brought this 42 U.S.C. S 1983 (1988) action pro
se in January 1989. When the Defendant failed to answer the com-
plaint and Newton had taken no further action, the court scheduled a
status hearing for October 1989. The court dismissed the action for
failure to prosecute after Newton failed to appear for the hearing. In
May 1995, Newton brought a Rule 60(b) motion to set aside the judg-
ment claiming that his failure to appear at the 1989 hearing was due
to miscommunication with an attorney. The district court denied
Newton's Rule 60(b) motion as untimely and meritless.

This court reviews a district court's denial of a Rule 60(b) motion
for an abuse of discretion. NOW v. Operation Rescue, 47 F.3d 667,
669 (4th Cir. 1995). The motion is not intended to be used as a substi-
tute for a timely and proper appeal. Ackermann v. United States, 340
U.S. 193, 198 (1950). Thus, a party seeking relief under Rule 60(b)
must show "`timeliness, a meritorious defense, a lack of unfair preju-
dice to the opposing party, and exceptional circumstances.'" Dowell
v. State Fire & Cas. Auto Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993)
(quoting Werner v. Carbo, 731 F.2d 204, 206-07 (4th Cir. 1984)).

The district court did not abuse its discretion by denying Newton's
motion because it was untimely. Newton allowed more than five
years to lapse between the time the court entered the dismissal order
and the time he filed the motion, and offered no explanation to justify
the delay. See McLawhorn v. John W. Daniel & Co. , 924 F.2d 535,
538 (4th Cir. 1991).

Newton also contends the district court judge should have recused
himself from ruling on the Rule 60(b) motion because of an alleged
conflict of interest. However, Newton failed to present this issue

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below; thus, it is waived on appeal absent a showing of plain error.
See National Wildlife Federation v. Hanson, 859 F.2d 313, 138 (4th
Cir. 1988). The district judge did not commit plain error by failing to
recuse himself. See In re Beard, 811 F.2d 818, 827 (4th Cir. 1987)
(discussing standards for recusal).

We affirm the district court's order. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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