CLD-172                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 19-3539
                                    ___________

                              GEORGE A. JACKSON,
                                           Appellant

                                          v.

      M.D. KEITH IVENS; PRISON HEALTH SERVICES, INCORPORATED;
   STANLEY TAYLOR; STATE OF DELAWARE; CORRECTIONAL MEDICAL
SERVICES INC, Correctional Medical Services, Inc. and Correctional Medical Services
  of Delaware, Inc.; CARL C. DANBERG; JAMES C. WELCH; CORRECTIONAL
MEDICAL SERVICES; CORRECTIONAL MEDICAL SERVICES OF DELAWARE,
 INC.; MD KEITH IVENS; PRISON HEALTH SERVICES, INC.; WARDEN RICK
               KEARNEY; DE DEPARTMENT OF CORRECTIONS
                     ____________________________________

                   On Appeal from the United States District Court
                             for the District of Delaware
                          (D.C. Civil No. 1-01-cv-00559)
                    District Judge: Honorable Leonard P. Stark
                    ____________________________________

            Submitted for Possible Dismissal Due to a Jurisdictional Defect,
             Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B), or
          Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 23, 2020
              Before: JORDAN, KRAUSE, and MATEY, Circuit Judges

                            (Opinion filed: April 28, 2020)
                                     _________
                                        OPINION *
                                        _________

PER CURIAM

       George Jackson appeals the District Court’s denial of his motion filed pursuant to

Fed. R. Civ. P. 60 as well as its order denying his motion for reconsideration. For the

reasons below, we will summarily affirm the District Court’s orders.

       Jackson, a Delaware inmate, filed a pro se complaint in 2001, alleging that

Appellees were deliberately indifferent to his serious medical needs. While represented

by counsel, Jackson entered into settlements with some defendants, and in 2012, the

District Court granted the remaining defendants’ motion for summary judgment. We

affirmed the District Court’s judgment. See C.A. No. 12-4155. In 2018, Jackson filed a

pro se motion pursuant to Fed. R. Civ. P. 60. The District Court denied the motion as

untimely and meritless. Jackson filed a motion for reconsideration and a notice of appeal.

After the District Court denied the motion for reconsideration, Jackson filed an amended

notice of appeal. 1




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  Because Jackson filed a timely motion for reconsideration of the District Court’s denial
of the Rule 60(b) motion, the time period to file his notice of appeal began when the
motion for reconsideration was denied. See Fed. R. App. P. 4(a)(4)(A). Thus, his notices
of appeal were timely filed and we have jurisdiction over the appeal pursuant to 28
U.S.C. § 1291.
                                             2
      In his Rule 60 motion, Jackson alleged that during a review of his medical files in

2015, he discovered that Appellees did not disclose two medical records to him during

the litigation. Jackson claimed that he had a biopsy of an enlarged lymph node and

agreed to an excisional biopsy to remove the node in 2000. While he consented to the

removal of the “right submandibular” lymph node, he asserted that the medical records

indicate that the “right superior cervical” lymph node was removed. He claimed that he

did not consent to have that lymph node removed. Jackson argued that if he had seen

these medical records during the litigation, he would have settled his claims on more

favorable terms and would have won a judgment against the medical provider. He also

discussed other medical issues that have arisen since the District Court’s 2012 judgment.

      Jackson based his motion on several subsections of Rule 60. First, he argued that

he was entitled to relief from judgment pursuant to Rule 60(b)(2) based on newly

discovered evidence, i.e. the two medical records. He also relied on Rule 60(b)(3), which

provides for relief from judgment due to fraud or misconduct. However, motions filed

pursuant to subsections (2) and (3) must be filed no more than a year after the judgment.

Fed. R. Civ. P. 60(c)(1). Jackson’s motion was filed far beyond that time limit.

Moreover, he did not make any allegations that would support a conclusion that the

Appellees purposefully and fraudulently withheld two medical records instead of simply

overlooking two records out of 800 pages of medical records disclosed.




                                            3
       In addition, Jackson relied on Rule 60(b)(6) which allows for relief from judgment

for “any other reason that justifies relief.” Such a motion must be made within a

reasonable time, see Fed. R. Civ. P. 60(c)(1), and the litigant must show “extraordinary

circumstances” to justify reopening a final judgment. Gonzalez v. Crosby, 545 U.S. 524,

535 (2005). Jackson has not shown that the motion was made within a reasonable time.

He alleged that he discovered the medical records in September 2015, but he did not file

the Rule 60(b) motion until three years later in November 2018. Moreover, he does not

explain why he could not have discovered these medical records years earlier. Nor has

Jackson made a showing of extraordinary circumstances. Jackson has not explained why

he would consent to the removal of one lymph node but not the other. He has not shown

how the alleged failure to disclose these two medical records affected the litigation of his

claims.

       Finally, Jackson relies on Rule 60(d)(3) which provides that Rule 60 does not limit

a court’s power to set aside a judgment for fraud on the court. Rule 60(d) allows a

District Court to entertain an independent action for relief from judgment to prevent a

grave miscarriage of justice. Jackson v. Danberg, 656 F.3d 157, 166 (3d Cir. 2011). As

noted above, Jackson has not made a showing that Appellees fraudulently failed to

disclose the medical records. See Booker v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987)

(party seeking relief under Rule 60(d)(3) must show fraud by clear and convincing

evidence). Failing to reopen the District Court’s judgment would not lead to a grave

                                             4
miscarriage of justice. The District Court did not err in denying Jackson’s Rule 60

motion.

       In his motion for reconsideration, Jackson did not make any new arguments.

Rather, he attached the medical records he had forgotten to attach to his Rule 60 motion.

The District Court did not err in denying the motion for reconsideration.

       Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by

the District Court, we will summarily affirm the District Court’s order. See Third Circuit

I.O.P. 10.6.




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