1 15-459-cv Zulu v. Ruth UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 25 th day of November, two thousand fifteen.

PRESENT: AMALYA L. KEARSE, REENA RAGGI, RICHARD C. WESLEY, Circuit Judges.

___________________ __________________ CHAKA ZULU, Plaintiff-Appellant , v. No. 15-459-cv LINDSAY RUTH, ex-Director, Defendant-Appellee , JEAN CLANCY BOTTA, Librarian for Library Services, DONALD SELSKY, Director, Special Housing, Inmate Disciplin ary Program, TIMOTHY J. MURRAY, Superintendent, JAMES A. LINDSAY, Acting Deputy Superintendent for Program Services, KEITH R. PERKINS, Deputy Superintendent for Security Services, BILL J. ANDERSON, Disciplinary Lieutenant, DOUGLAS R. PETRIC, Senior Librarian,2 K. BIVENS, Lieutenant , MICHAEL D. MURRAY, Correction Sergeant, PIONEER LIBRARY SYSTEM, JENNIFER MORRIS, Executiv e Director, PATRICIA STOCKER, Assistant Direct or and Records Manager, CINDY GARDNER, Financ ial Administrator, MARILYN LONGHOUSE, Community Outreach Coordinator, GENEVA FR EE LIBRARY, KIM IRACI, Special Services Librarian, DEBBIE SCHEFFLER, Reference Li brarian, JOHN AND JANE DOES 1–50, Defendants

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___________________ __________________ FOR APPELLANT: Chaka Zulu, pro se , Rochester, New York.

FOR APPELLEE: No appearance.

Appeal from a judgment of the United States District Court for the Western District of New York (David G. Larimer, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on February 6, 2015, is AFFIRMED. Plaintiff Chaka Zulu appeal s pro se from the denial of his 2014 motion for relief from a 2009 award of summary judgment in favor of defendant Lindsay Ruth. See Fed. R. Civ. P. 60(b)(6), (d); Fed. R. App. P. 4(a)(6). 2 We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal, which we reference only as necessary to explain our decision to affirm.

1 The Clerk of Court is directed to ame nd the official caption as shown above.

2 In 2011, Zulu settled with the remaining defendants.3 We review the denial of motions for relie f from judgment for abuse of discretion. See In re WorldCom, Inc., 708 F.3d 327, 33 5–36 (2d Cir. 2013) (Rule 4(a)(6)); Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir. 1994) (R ule 60). A district court abuses its discretion when “(1) its decision rest s on an error of law (such as application of the wrong legal principle) or a clearl y erroneous factual finding, or (2) its decision—though not necessarily th e product of a legal error or a clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 16 9 (2d Cir. 2001) (footnote omitte d). We identify no such

abuse here. Zulu’s Rule 60(b)(6) motion was properly denied as untimely because it was not filed until five years after the challenged awar d of summary judgment and more than three years after the 2011 settlement. Such a filing was not “within a reasonable time.” Fed. R. Civ. P. 60(c)(1); see Kello gg v. Strack, 269 F.3d 100, 10 4 (2d Cir. 2000) (ruling motion made 26 months after judgment was unreasona ble); Truskoski v. ESPN, Inc., 60 F.3d 74, 76–77 (2d Cir. 1995) (ruling 18-m onth delay unreasonable). Zulu’s motion for relief under Rule 60(d) was without merit. Under Rule 60(d)(1), a court may “entertain an independent action to relieve a party from a judgment.” Such relief requires a claimant to show, inter alia, that his “own fault, neglect, or carelessness did

not create the situation for whic h [he] seek[s] equitable relief.” Campaniello Imports, Ltd. v. Saporiti Italia S.p.A., 117 F. 3d 655, 662 (2d Cir. 1997). Zu lu cannot make that showing4 in light of his inordinate delay in moving for re lief from judgment. In urging otherwise, Zulu contends that (1) he did not receive the 2009 summary judgment motion until 2 014, and (2) the motion should ha ve been denied because it was not signed by Ruth’s counsel. These arguments fail because, if Zulu was ignorant of the motion and award in 2009, he was obliged to purs ue diligently his cl aims against this defendant, which he di d not do. See Cresswell v. Sulliv an & Cromwell, 922 F.2d 60, 71 (2d Cir. 1990) (reasoning that equitable relief of independent action is unavailable if movant did not act with “pr oper diligence” (internal quota tion marks omitted)). The same

holds for Ruth’s counsel’s failu re to sign the motion; “[i]n this type of action, it is fundamental that equity will not grant relief if the complaining party has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action to open, vacate, modify, or otherwise obtain re lief against, the judgment.” Id. (internal quotation marks a nd ellipsis omitted). We identif y no abuse of discretion in

the denial of Zulu’s motion for relief from a judgment entered five years earlier. Under Rule 60(d)(3), a court may set as ide a judgment for fraud on the court.

Zulu’s assertion that Ruth’s counsel mailed the summary judgment mo tion to an incorrect address—even if it alleged conduct that was in tentional rather than inadvertent—does not make this showing. See Gleason v. Ja ndrucko, 860 F.2d 556, 559 (2d Cir. 1988) (reasoning that fraud on court “as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication”).5 The court also properly denied reopening of the time to appeal because Zulu did

not file the motion within 180 da ys of the entry of judgment. See Fed. R. App. P. 4(a)(6). Finally, Zulu points to no record support for his clai m that the district court

misconstrued the settlement to in clude Ruth. The fact that th e district court had already awarded summary judgment to Ruth some two years before the settlement was approved defeats Zulu’s misconstruction argument.

We have considered all of Zulu’s remain ing arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court