UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

SILAS WILSON, JR., 

 Plaintiff - Appellant,

v.

KEITH C. REID, individually and official 

capacity, Tulsa Police Officer; CHUCK 

JORDAN, individually and official 

capacity, Chief of Police Tulsa Police 

Department; G. T. BYNUM, individually 

and official capacity, Mayor of City of 

Tulsa; SALLY HOWE SMITH, 

individually and official capacity, (former) 

Court Clerk Tulsa County; DON 

NEWBERRY, individually and official 

capacity, Court Clerk Tulsa County; FNU 

LNU, individually and official capacity, 

Unknown Deputy Court Clerks; 

STANLEY GLANTZ; GERALD M. 

BENDER; G. CHRIS BENGE; TULSA 

COUNTY; CITY OF TULSA; 

OKLAHOMA SECRETARY OF STATE, 

 Defendants - Appellees.

No. 20-5015

(D.C. No. 4:18-CV-00374-JED-JFJ)

(N.D. Okla.)

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ORDER AND JUDGMENT*

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* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

December 14, 2020

Christopher M. Wolpert

Clerk of Court
2

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.

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Federal Rule of Civil Procedure 60(b) provides, in exceptional circumstances,

an opportunity for relief from a final judgment after the time for a Rule 59 motion 

has expired. In this case, Plaintiff’s Rule 60(b) motion did not state a cognizable 

argument and amounted to a relitigating of issues he could have brought in his first 

appeal. The district court denied that motion and, exercising jurisdiction under 28 

U.S.C. § 1291, we affirm.

I.

Plaintiff Silas Wilson, Jr., a pro se prisoner litigant, sued defendants, various 

local and county officials and entities, in the Western District of Oklahoma under 42 

U.S.C. § 1983. Upon concluding that it was not a proper venue, that court transferred 

the action to the Northern District of Oklahoma, which ordered Plaintiff to file an 

amended complaint to cure certain identified deficiencies. Plaintiff timely filed his 

amended complaint in accordance with the order, but the district court held that he 

still failed to state a claim. The district court explained that Plaintiff failed to state a 

cognizable constitutional violation related to an allegedly falsified affidavit. And, in 

any event, the district court said, Supreme Court case law barred those claims. See

Heck v. Humphry, 512 U.S. 477, 487 (1994) (requiring district courts to dismiss any 

§ 1983 claim that, if resolved in the plaintiff’s favor, would necessarily imply the 

invalidity of his conviction or sentence). The district court also found that Plaintiff 

failed to allege a cognizable claim stemming from the alleged withholding of public 
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records. Accordingly, the district court dismissed Plaintiff’s amended complaint with 

prejudice and entered judgment against him. 

Plaintiff appealed the district court’s judgment and we affirmed. Wilson v. 

Reid, 781 Fed. App’x 789 (10th Cir. 2019) (Wilson I). During the first appeal, 

Plaintiff filed his Motion to Vacate Judgment and Set Aside the United States District 

Court’s Order, pursuant to Federal Rule of Civil Procedure 60(b). After the first 

appeal, the district court denied that motion and Plaintiff brought this appeal.

II.

Plaintiff appeals the order denying his motion, not the underlying judgment. 

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). We review the 

district court’s denial of a Rule 60(b) motion for abuse of discretion. Zurich N. Am. 

v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (citing Servants of 

Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000)). Relief under Rule 60(b) is 

an extraordinary remedy that a court should give only in “exceptional circumstances” 

and is “not a substitute for appeal.” Id. (internal citations omitted). Therefore, we 

look only for a “clear or unmistakable error” and will reverse only if we find “a 

complete absence of a reasonable basis” and we are “certain that the . . . decision is 

wrong.” Id. (internal citations omitted).

III.

Plaintiff moved for relief under Rules 60(b)(1), (b)(4), and (b)(6). Rule 60 

provides that “On motion and just terms, the court may relieve a party . . . from a 

final judgment . . . for the following reasons: (1) mistake, inadvertence, surprise, or 
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excusable neglect; . . . (4) the judgment is void; . . . (6) any other reason that justifies 

relief. Fed. R. Civ. P. 60(b). Importantly to this case, a party may not use Rule 60(b) 

to “revisit[] the issues already addressed” or to “advance[e] new arguments or 

supporting facts which were otherwise available for presentation” earlier in the 

proceeding. Van Skiver, 952 F.2d at 1243. “Reiterat[ing] the original issues raised 

in [the] complaint” or “arguing that the district court misapplied the law or 

misunderstood [the plaintiff’s] position” are not proper for a Rule 60(b) motion. Id.

at 1244.

Plaintiff premised his motion on the idea that the district court “mistakenly 

misconstrued the true facts as alleged in [his complaint].” He argued that the 

“amended complaint should have been properly construed liberally . . . according to 

the . . . true facts alleged” and that it “alleged a violation of due process/equal 

protection.” Plaintiff ultimately concluded that the district court (1) entered its 

“order to dismiss . . . without even considering Plaintiff’s amended pleadings as a 

whole,” (2) “misconstrued the facts alleged in Plaintiff’s amended complaint,” 

(3) did not view “the allegations in the light most favorable to the Plaintiff,” and 

(4) “based [its] resolution of Plaintiff’s claims on materially false information.” 

Plaintiff contended that these errors prejudiced him, deprived him of due process, and 

“render[ed] the judgment void on its face.” The district court held that Plaintiff’s 

arguments all either “rehash[ed] or amplif[ied]” his original arguments or would not 

have “nudg[ed] Plaintiff’s allegations from deficient to plausible.” We agree and 

will address 60(b)(1), (4), and (6) each in turn.
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First, Rule 60(b)(1) provides relief for a mistake “in only two instances: (1) 

when ‘a party has made an excusable litigation mistake or an attorney in the litigation 

has acted without authority; or (2) whe[n] the judge has made a substantive mistake 

of law or fact in the final judgment or order.’” Utah ex rel. Div. of Forestry, Fire & 

State Lands v. United States, 528 F.3d 712, 722–23 (10th Cir. 2008) (alteration in 

original) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir. 

1996)). Plaintiff did not argue inadvertence, surprise, or excusable neglect.

Plaintiff’s argument that the district court “mistakenly misconstrued the true 

facts alleged in [his complaint]” is not proper for a Rule 60(b) motion. Van Skiver, 

952 F.2d at 1243–44; see also Swam v. United States, 327 F.2d 431, 433 (7th Cir. 

1964) (explaining that misconceiving the character of a cause of action is not “the 

kind of mistake or inadvertence that comes within the ambit of Rule 60(b)”). A party 

should bring such arguments via either Rule 59(e) or direct appeal. Van Skiver, 952 

F.2d at 1244. And, on direct appeal, we affirmed the district court’s dismissal of 

Plaintiff’s complaint. Wilson I, 781 Fed. App’x at 793. As for any new facts 

Plaintiff attempted to introduce or new arguments he could have made earlier or in 

his first appeal, we reject them as well. A motion under Rule 60(b) may not have its 

basis in “arguments or supporting facts which were otherwise available for 

presentation” earlier. Van Skiver, 952 F.3d at 1243. Therefore, we need not decide 

whether these new facts or arguments would have changed the result of the case. We 

simply conclude that the district court correctly dismissed them as inappropriate for a 

Rule 60(b) motion.
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Next, we address Plaintiff’s Rule 60(b)(4) argument. “A judgment is void 

under Rule 60(b)(4) ‘only in the rare instance where [the] judgment is premised 

either on a certain type of jurisdictional error or on a violation of due process that 

deprives a party of notice or the opportunity to be heard.’” Johnson v. Spencer, 950 

F.3d 680, 694 (10th Cir. 2020) (alteration in original) (quoting United Student Aid 

Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)). Plaintiff made no jurisdictional 

argument, but he claimed the district court deprived him of due process. Relief for 

lack of due process is not appropriate in a case in which the district court has not 

deprived a party of “notice, hearing, or other fundamental constitutional rights.” See

V.T.A., Inc. v. Airco, Inc., 597 F.3d 220, 225 (10th Cir. 1979). The district court did 

not deprive Plaintiff of a fundamental due process right in the underlying proceeding. 

Before dismissing the case, the district court gave him opportunity to amend his 

pleadings and, in doing so, even pointed out his deficiencies. Moreover, Plaintiff 

appealed the district court’s judgment and could have raised a due process violation 

at that time.

Finally, Relief under Rule 60(b)(6)’s catchall provision is “even more difficult 

to attain and is appropriate only when it offends justice to deny such relief.” Zurich, 

426 F.3d at 1293 (quoting Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir. 

1999)). Furthermore, “Rule 60(b)’s categories are mutually exclusive.” Id. (citing 

United States v. Buck, 281 F.3d 1336, 1341 (10th Cir. 2002)). So, to obtain relief 

under Rule 60(b)(6), a party must make an argument that Rules 60(b)(1)–(5) do not 

encompass. Id. (Rule 60(b)(6) “is restricted to reasons other than those enumerated 
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in the previous five clauses.” (quoting Buck, 281 F.3d at 1314)). Plaintiff did not 

state any ground for relief not within the scope of Rule 60(b)(1) or (b)(4).

Plaintiff’s Rule 60(b) motion and this appeal attempt to end-run our prior 

affirmation of the district court’s dismissal of his claims, and they constitute an 

impermissible second shot at appealing that judgment. Zurich, 426 F.3d at 1289 

(Rule 60(b) is not a substitute for appeal). Because nothing in Plaintiff’s motion 

justifies relief under Rule 60(b)(1), (4), or (6), we conclude the district court did not 

abuse its discretion in denying Plaintiff’s Rule 60(b) motion for relief from judgment.

AFFIRMED.

Entered for the Court

Joel M. Carson III

Circuit Judge