ELD-004 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 22-2460

___________

VITO A. PELINO,

Appellant

v.

JOHN E. WETZEL; ROBERT GILMORE; MICHAEL ZAKEN

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2-20-cv-00326)

District Judge: Honorable Arthur J. Schwab

____________________________________

Submitted for 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

December 23, 2022

Before: GREENAWAY, JR., KRAUSE, and MATEY, Circuit Judges

(Opinion filed: January 3, 2023)

_________

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.
2

Vito Pelino, an inmate proceeding pro se and in forma pauperis, appeals from the 

District Court’s order denying his post-judgment motion. We will summarily affirm the 

District Court’s judgment.

I.

In March 2020, Pelino initiated this lawsuit challenging a Pennsylvania 

Department of Corrections (“DOC”) mail policy, which he alleged violates the First and 

Fourteenth Amendments to the United States Constitution. Under the policy, incoming 

non-privileged mail is sent to a third party, Smart Communications, for electronic 

scanning, after which inmates receive a photocopy of their mail. Pelino alleged that the 

policy permits storage of personal mail in an electronic database for a period of seven 

years. He sought injunctive relief, a declaratory judgment, and court costs.

The District Court granted the defendants’ motion to dismiss Pelino’s amended 

complaint in February 2021, and we affirmed. See Pelino v. Wetzel, No. 21-1363, 2022 

WL 1239050 (3d Cir. Apr. 27, 2022) (per curiam). Pelino then filed a motion for relief 

from the judgment under Federal Rule of Civil Procedure 60(b) in the District Court,

arguing that he possessed new evidence supporting his contention that the mail policy 

allows electronic storage of non-privileged inmate mail for seven years, and that the 

defendants engaged in fraud by asserting that they destroy mail after 45 days. The 

District Court denied the motion, concluding that it was untimely and without merit. 

Pelino appeals. 
3

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. See Ohntrup 

v. Firearms Ctr., Inc., 802 F.2d 676, 678 (3d Cir. 1986) (per curiam). We review the

District Court’s order denying the Rule 60(b) motion for abuse of discretion. Budget 

Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008). We may affirm on any basis 

supported by the record, see Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per 

curiam), if the appeal presents no substantial question, see 3d Cir. L.A.R. 27.4; 3d Cir. 

I.O.P. 10.6.

III.

Pelino argues that his motion was brought under Rule 60(b)(6), which has no 

explicit time limit, and that the District Court accordingly erred in concluding that his 

motion was untimely. However, as Pelino’s motion relied on newly discovered evidence 

and allegations of fraud on the part of the defendants, it is better construed as one brought 

under Rule 60(b)(2) or 60(b)(3). See Fed. R. Civ. P. 60(b)(2)-(3) (providing that a court 

may relieve a party from a judgment based on, respectively, “newly discovered evidence 

that, with reasonable diligence, could not have been discovered in time to move for a new 

trial under Rule 59(b)” or “fraud . . . , misrepresentation, or misconduct by an opposing 

party”). Such motions must be filed “no more than a year after the entry of the judgment 

or order” at issue. Fed. R. Civ. P. 60(c)(1); see also Moolenaar v. Gov’t of V.I., 822 F.2d 

1342, 1346 n.5 (3d Cir. 1987) (noting that “[a]n appeal does not toll this time period”). 
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Here, the District Court dismissed Pelino’s action in February 2021, and Pelino did not 

file his Rule 60(b) motion until May 2022, several months late. While Pelino is correct 

that motions under Rule 60(b)(6) are not subject to a one-year limitation, see Fed. R. Civ. 

P. 60(c)(1), that provision “is available only when Rules 60(b)(1) through (b)(5) are

inapplicable,” Kemp v. United States, 142 S. Ct. 1856, 1861 (2022), and may not be used

“as a means by which the time limitations of 60(b)(1-3) may be circumvented,” Stradley

v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975). Accordingly, we agree with the District

Court that Pelino’s motion was untimely.

Even if his motion could be construed as one under Rule 60(b)(6), moreover, 

Pelino failed to show “extraordinary circumstances” justifying relief. See Budget Blinds, 

536 F.3d at 255 (explaining that a showing of extraordinary circumstances involves 

demonstrating that “without relief from the judgment, an extreme and unexpected 

hardship will result” (citation and internal quotation marks omitted)). As the District 

Court noted, Pelino’s motion was essentially an effort to re-litigate the merits of his 

amended complaint. Although he pointed to evidence supporting his contention that 

electronic copies of non-privileged mail are stored in Smart Communications’ database 

for seven years, we accepted Pelino’s allegation to that effect as true in affirming the 

District Court’s order dismissing Pelino’s amended complaint. See Pelino, 2022 WL 

1239050, at *1-2. Thus, we agree with the District Court that Pelino’s motion also lacked 

merit.
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Accordingly, we will affirm the judgment of the District Court.