NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1401

___________

CARLOS ZUNIGA HERNANDEZ,

Appellant

v.

UNITED STATES OF AMERICA

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1:12-cv-00647)

District Judge: Honorable Christopher C. Conner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 12, 2015

Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

(Opinion filed: April 2, 2015)

___________

OPINION*

___________

PER CURIAM

Carlos Zuniga Hernandez, a federal prisoner, filed suit against the United States 

under the Federal Tort Claims Act (“FTCA”). He alleged that correctional officers and 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

prison officials did not properly respond to his complaints of physical and sexual assault 

by another inmate in January 2009, which led him to suffer injuries at that inmate’s hands 

in a subsequent altercation. The United States sought summary judgment, asserting that 

Zuniga Hernandez’s claims were barred by the discretionary function exception to the 

FTCA. 

The District Court, adopting a Magistrate Judge’s report and recommendation over 

Zuniga Hernandez’s objections, granted the United States’ motion. Considering the facts 

as presented by the United States as undisputed and assessing the applicability of the 

discretionary function exception,1the District Court concluded that Zuniga Hernandez’s 

claims failed as a matter of law. The District Court entered judgment in favor of the 

United States on October 2, 2013. 

On October 17, 2013, Zuniga Hernandez filed a letter in which he asked that a 

“supplemental declaration” that he had previously submitted “in an earnest attempt to fill 

the void of evidence referred to by the magistrate judge,” and which crossed in the mail 

with the District Court’s judgment, be accepted as a motion for reconsideration. Despite 

Zuniga Hernandez’s reference to it, no “supplemental declaration” appears in the record. 

 

1 Zuniga Hernandez twice sought an extension of time to file a response to the summary 

judgment motion. On the granting of both requests, Zuniga Hernandez was directed to 

file not only a brief but also a counterstatement of material facts to respond to the 

statement of facts submitted by the United States. Zuniga Hernandez filed a brief, but he 

did not file a counterstatement of material facts or any affidavit or declaration. In his 

brief, he argued that the factual record submitted by the United States supported his 

allegations that he reported sexual assaults on January 9, 2009, and January 14, 2009, and 

that, given his reports, correctional officers and officials were without discretion 

regarding their response under the regulations at 28 C.F.R. § 115.5, et seq. Zuniga 

Hernandez also stated that the allegations in his complaint should be taken as true for 

purposes of the summary judgment motion. 
3

In December 2013, Zuniga Hernandez filed a motion “seeking affirmative relief 

under Fed. R. Civ. P. 60(b)(6)” and leave to present supplemental evidence. He asked the 

District Court to vacate its ruling, arguing that the decision was based on a 

“misapprehension of fact and incorrect application of law.” Citing 28 U.S.C. § 2680(h), 

he further stated that the ruling ignored defendants’ obligations to exercise their duty of 

care in response to reports of rape. He claimed that he was raped on January 9, 2009, and 

January 13, 2009, and immediately reported the attacks, but correctional officers did not 

undertake their required investigatory and enforcement duties (which led to the 

altercation with the other inmate and his injuries). The United States opposed the motion 

on the basis that Zuniga Hernandez had not shown any basis for reconsideration. 

On January 28, 2014, the District Court denied the motion. The District Court 

noted the accepted bases for relief under Rule 60(b) and concluded that Zuniga 

Hernandez merely sought to relitigate the issues already addressed without presenting a 

clear error of law. The District Court also rejected Zuniga Hernandez’s claim of a 

“misapprehension of fact,” noting that Zuniga Hernandez failed to submit any evidence 

in the summary judgment proceedings and did not put forth any evidence that was not 

previously available to the District Court. On February 14, 2014, the District Court 

received Zuniga Hernandez’s notice of appeal (dated February 5, 2014) from “the final 

judgment of the District Court.” 

Our first question is the scope of this appeal. The answer depends on the 

timeliness of the filing of the notice of appeal, which turns in part on two subsidiary 

questions, the significance of Zuniga Hernandez’s October letter and the nature and effect 
4

of his December filing. The time limit of Rule 4(a)(1) for commencing an appeal is 

mandatory and jurisdictional. See Bowles v. Russell, 551 U.S. 205, 209-14 (2007). A 

notice of appeal in a civil case in which the United States is a party must be filed within 

60 days of the date of entry of the judgment or order appealed. Fed. R. App. P. 

4(a)(1)(B)(i). A timely motion pursuant to Rule 59(e) of the Federal Rules of Civil 

Procedure tolls the deadline, as does a motion for relief under Rule 60, if it is filed within 

28 days of the entry of judgment. Fed. R. App. P. 4(a)(4)(iv) & (v).

Zuniga Hernandez asks us to consider the letter that he filed in October 2013 as a 

motion for reconsideration under Rule 59(e), so that we would have a jurisdictional hook 

to review the order denying summary judgment. However, that letter does not so much 

seek reconsideration as ask the District Court to consider as a motion for reconsideration 

a supplemental declaration that may have been put in the mail but that does not appear on 

the docket. We cannot deem the October letter a Rule 59(e) motion.2 

The next question concerns what type of motion Zuniga Hernandez filed in 

December. A pro se pleading must be “judged by its substance rather than according to 

its form or label.” See Lewis v. Att’y Gen. of the U.S., 878 F.2d 714, 722 n.20 (3d Cir. 

1989). Zuniga Hernandez, in seeking an order to vacate the District Court’s judgment, 

cited Rule 60(b)(6), requested leave to present supplemental and “new” evidence, and 

 

2 Zuniga Hernandez also asks us to consider the letter as a notice of appeal, but we cannot 

do so because the document does not evidence that Zuniga Hernandez had an intention to 

appeal. See Fed. R. App. P. 3(c) (describing the required contents of a notice of appeal); 

3d Cir. L.A.R. 3.4 (explaining that a document filed by a pro se litigant after a district 

court’s decision will be deemed a notice of appeal despite an informal form or title “if it 

evidences an intention to appeal”) (emphasis added).
5

also cited traditional bases for reconsideration under Rule 59(e) (essentially, errors of fact 

and law resulting in manifest injustice). 

As either a Rule 59(e) motion or a Rule 60 motion, Zuniga Hernandez’s 

submission was not filed within the time periods that would afford him tolling under Rule 

4(a)(4). Although we have not decided whether Rule 4(a)(4) is a jurisdictional rule or a 

claims-processing rule, see Baker v. United States, 670 F.3d 448, 459 n.14 (3d Cir. 2012) 

(discussing the matter and suggesting it is a claims-processing rule that should generally 

be enforced sua sponte); Long v. Atl. City Police Dep’t, 670 F.3d 436, 446 n.18 (3d Cir. 

2012), we need not decide the matter in this case where the United States argues that 

Zuniga Hernandez’s appeal of the District Court’s order granting summary judgment was 

untimely because the motion was untimely. See Lizardo v. United States, 619 F.3d 273, 

280 & n.9 (3d Cir. 2010). 

Zuniga Hernandez’s appeal is timely as to the order denying his Rule 59/60 hybrid 

motion. We have jurisdiction over that decision under 28 U.S.C. § 1291. See Long, 670 

F.3d at 446 n.19 (explaining that we have jurisdiction over a timely appeal of an order 

ruling on an untimely motion for reconsideration); cf. Ohntrup v. Firearms Ctr., Inc., 802 

F.2d 676, 678 (3d Cir. 1986) (per curiam) (explaining that “most post judgment orders 

are final decisions within the ambit of 28 U.S.C. § 1291 as long as the district court has 

completely disposed of the matter”) (citation and quotation marks omitted). 

Our review of an order denying a motion for reconsideration is for abuse of 

discretion, but, to the extent the denial is based on the interpretation and application of a 

legal precept, review is plenary. See Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 
6

333 (3d Cir. 1985). Also, we generally review orders denying Rule 60(b) motions for 

abuse of discretion. See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 & n.5 (3d Cir. 

2008) (explaining also that we exercise plenary review over orders granting or denying 

relief under Rule 60(b)(4)). 

Zuniga Hernandez was not entitled to reconsideration based on information that 

was previously available to him. “The purpose of a motion for reconsideration is to 

correct manifest errors of law or fact or to present newly discovered evidence.” Harsco 

Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Zuniga Hernandez asserted that he 

was entitled to reconsideration because he had “supplemental evidence”; he also filed a 

document entitled “affidavit in support,” as well as exhibits. However, a litigant may not 

submit that evidence in support of a motion for reconsideration unless that evidence is 

newly discovered. Id. His “affidavit” (although dated in December) and other evidence 

did not constitute new evidence; all that he submitted (other than copies of decisions in 

his case) was information that was available at the summary judgment stage. Because 

Zuniga Hernandez did not put before the District Court material new evidence that could 

not have been discovered earlier with reasonable diligence, he was not entitled to 

reopening under Rule 60(b), either. See Compass Tech., Inc. v. Tseng Labs, Inc., 71 F.3d 

1125, 1130 (3d Cir. 1995). 

Zuniga Hernandez also claimed errors of law and fact. He asked the District Court 

to reexamine the facts found by the Magistrate Judge, claiming that the report and 

recommendation “ignor[ed] the com[m]ission of felony rape on two separate occasions 

reported as crimes to the BOP.” The District Court did not abuse its discretion in 
7

concluding there was no error in its fact-finding because Zuniga Hernandez had not 

submitted evidence of rape or its report to controvert the United States’ version of the 

facts. Under the circumstances of this case, the District Court permissibly relied on its 

application of its Local Rule 56.1 to deem admitted the United States’ statement of the 

facts. See Anchorage Assoc. v. V.I. Bd. of Tax Rev., 922 F.2d 168, 174-76 (3d Cir. 

1990) (considering a different local rule related to summary judgment proceedings and 

explaining that local rules consistent with Acts of Congress and the Federal Rules of 

Procedure are permitted); Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (noting, 

inter alia, that pro se litigants must follow procedural rules). Zuniga Hernandez clearly 

had warning and was told (more than once in light of the extensions of time) of his filing 

obligations. He nonetheless did not file a statement of disputed facts or any evidence 

with his response to the motion for summary judgment.3 Accordingly, the District Court 

did not err in treating the facts as undisputed in its analysis of the merits of Zuniga 

 

3 He instead sought to rely on the allegations in his complaint. Without further factual 

details, in his complaint, Zuniga Hernandez stated that an inmate “sexually assaulted” 

him on January 9, 2009, and January 13, 2009. He did not provide further facts about the 

incidents. We note that the “allegations” he described in his motion for reconsideration

(regarding rape and its report) do not exist in his complaint. Although he used the term 

rape in brief in response to the motion for summary judgment, he appeared to use it to 

describe something that occurred after the sexual assaults (he stated that his case was 

“about sexual abuse and assault, which was allowed through Defendant’s negligence to 

blossom into rape,” and that if corrections officers had followed procedures after he 

reported the two sexual assaults, he “would never have been raped and suffered other 

physical injuries”). Regardless, in its undisputed statement of facts, the United States 

described Zuniga Hernandez’s first report as one about unspecified problems with 

another inmate and the second as a report of pressure for sex without physical contact or 

threats from the other inmate. 
8

Hernandez’s case. Therefore, the District Court did not abuse its discretion in denying 

reconsideration based on a “misapprehension of facts.” 

Zuniga Hernandez also sought reconsideration on the basis that the District Court 

erred in applying the discretionary function exception to the FTCA. “Legal error, 

without more, cannot justify granting a Rule 60(b) motion.” Smith v. Evans, 853 F.2d 

155, 158 (3d Cir. 1988) (explaining that a Rule 60(b) motion cannot substitute for an 

appeal). But we consider the District Court’s legal analysis on summary judgment to 

determine whether reconsideration was warranted. See Harsco Corp., 779 F.2d at 909. 

To determine if the discretionary function exception to the FTCA applies, a court 

must consider first whether the challenged conduct involves an element of judgment or 

choice. Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000) (citation and 

quotation marks omitted). If a statute or a regulation prescribes a particular cause of 

action for an employee to follow, then the first part of the test is not met. Id. If it is met, 

a court is tasked to then determine whether the discretionary function exception was 

designed to shield the type of judgment or choice at issue. Id. (citation and quotation 

marks omitted). 

The United States owes a duty of care to federal prisoners under 18 U.S.C. § 4042, 

which states, in relevant part, that the Bureau of Prisons (“BOP”) shall “provide for the 

safekeeping, care, and subsistence of all persons charged with or convicted of offenses 

against the United States.” 18 U.S.C. § 4042(a)(2). Other relevant regulations are 28 

C.F.R. § 541.10(a) (relating to disciplinary action against inmates) and 28 C.F.R. 

§ 541.22(a) (regarding placements in administrative segregation). For the reasons given 
9

by the District Court (and in the authority cited by the District Court), the statute and 

those regulations afford the BOP discretion in deciding how to best protect an inmate. 

Furthermore, as the District Court and those authorities concluded, the judgment involved 

in how best to protect one inmate from the threat of attack by another is the type of 

judgment that the exception was designed to shield. 

We must also note one additional policy, effective at the time of the incident, 

which includes directions for prison officials in dealing with sexually abusive behavior.4 

The policy, Program Statement “P5342.06, Sexually Abusive Behavior Prevention and 

Intervention Program, effective 4/27/2005,” gave the operations lieutenant discretion in 

safeguarding the inmate, but appears to have required 1) other staff members to report 

sexually abusive behavior complaints to lieutenants, and 2) the lieutenants to make a 

prompt referral to the prison psychology services and to notify to certain other prison 

officials of a reported or suspected victim of sexually abusive behavior. We do not have 

to resolve, however, whether the discretionary function exception is inapplicable to the 

extent that P5342.06 specifically prescribed a course of action, including the notification 

of the lieutenant and the referral to psychological services. Based on the undisputed 

facts, Hernandez’s first report (before the assault in which he was injured) was a 

complaint about unspecified problems with another inmate. The second report (which he 

made after after the assault) was a report of pressure for sex without physical contact or 

 

4 Zuniga Hernandez also argued that additional regulations that begin at 28 C.F.R. 

§ 115.5 (the National Standards for the Prison Rape Elimination Act) required a 

particular course of action to ensure his safety. However, we do not consider them 

because they were not effective in 2009; they became effective in 2012. 
10

threats from the other inmate. Neither report fell within the definitions of sexually 

abusive behaviors listed in P5342.06 (sexual fondling, sexual misconduct by staff 

members, sexual assault with an object, and rape).5 

For these reasons, the District Court did not abuse its discretion in denying Zuniga 

Hernandez’s motion to the extent that he sought reconsideration under Rule 59(e). As we 

have explained, and because Zuniga Hernandez also did not make the necessary 

“showing of exceptional circumstances” to justify relief under Rule 60(b)(6), see Coltec 

Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002), we conclude that the District 

Court did not abuse its discretion in denying reopening, either. We will affirm the 

District Court’s judgment. 

 

5 P5342.06 also included a recommendation that all staff “should report to the Operations 

Lieutenant, any behaviors that could lead to sexually abusive behaviors.” But a 

recommendation is different from a requirement.