### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10989 Summary Calendar

SHELBY WAYNE FIFE, Plaintiff - Appellant

v. NFN HENSLEY, Health a n d Medical Administrator; SHANE MARTINEZ, Health and Medical Administrator; BEN LUONG, Physician-Medical Director, Preston E. Smith Unit, Defendants - Appellees

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:06-CV-203

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Proceeding pro se , Shelby Wayne Fife, Texas prisoner # 1039740, appeals th e di s trict court’s denying his motion for relief from judgment, in which he relies on Federal Rules of Civil Procedure 9(b), 60(b)(3), 60(b)(6), and 60(d)(3). In December 2007, the district court granted summary judgment for defendants in Fife’s underlying pro se proceeding under 42 U.S.C. § 1 983. Our court U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 1 7, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-10109 Document: 00512086456 Page: 1 Date Filed: 12/17/2012No. 11-10989

affirmed in February 2009. Fife v. Hensley, No. 08-10062, 2009 WL 348823 (5th Cir. 12 Feb. 2009) (unpublished). The post-judgment motion at issue was filed in September 2011. Fife’s reliance on Federal Rule of Civil P r o c e d ure 9(b) is misplaced; that rule requires a claim of fraud or mist a k e t o be plead with particularity. Although an action may be dismissed for failure to state a claim if the pleading does not comply with this rule, it does not provide an independent basis to grant

a post-judgment motion such as Fife’s. E.g. , United States ex rel. W i l l i a m s v. Bell Helicopter Textron, Inc., 417 F.3d 450, 453-54 (5th Cir. 2005) (affirming dismissal of complaint under F E D
. R. C IV
. P. 12(b)(6) for failure to state a claim because complaint did not meet heightened pleading standard of Rule 9(b)). Denials of Rule 60(b) motions are reviewed for abuse of discretion. E.g. , M a t ter of Ta Chi Navigation (Panama) Corp. S.A. , 728 F.2d 699, 703 (5t h C i r . 1984). A Rule 60(b)(3) motion must be made “no more than a y e ar a f t e r the entry of the judgment or order or the date of the proceeding”; and a Rule 60(b)(6) motion must be made “within a reasonable time”. F E D
. R. C IV
. P. 60(c)(1). Rule 60(b)(3) allows relief fr o m a j u d gment to be granted on the basis of fraud, misrepresentation, or misconduct by the opposing party. Fife c o n t e n d s Dr. Luong cre ated false records and attempted to defraud the court regarding his treatment of Fife and the nature of his claims. Because Fife’s Rule 60 (b ) ( 3) motion was filed more than one year after the entry of judgment, it is untimely. F E D
. R. C IV
. P. 60(c)(1). Fife also relies on Rule 60(d)(3), which states that Rule 60 does not limit a court’s power to set aside a judgment for fraud on the court. A motion under Rule 60(d)(3), however, requires a highe r l evel of misconduct, such as “an unconscionable plan or scheme which is designed to improperly influence the court in its decision”. Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989) (citation omitted). Because Rule 60(d)(3) is without time limitation, “only the most egregious misconduct

. . . will constitute fraud on the
2 Case: 12-10109 Document: 00512086456 Page: 2 Date Filed: 12/17/2012No. 11-10989

court”. Jackson v. Thaler , 348 F. App’x 29, 34 (5th Cir. 2009) (quoting Rozier v. Ford Mot o r Co. , 573 F.2d 1332, 1338 (5th Cir. 1978). Fife asserts that subsequent medical reports from other prison doctors and an outside physician establish Dr. Luong’s fraud. These reports instead demonstrate a disagreement

over medical treatment, and do not s h o w t h a t Dr. Luong engaged in an “unconscionable plan or scheme” to defraud the court. Id. Rule 60(b)(6) provides that a court may grant relief for “any other reason that justifies relief”; however, “[t]he reason for relief

. . . cannot be the reason for relief sought under another subsection of 60(b)”. Hesling v

. CSX Transp., Inc. , 396 F.3d 632, 643 (5th Cir. 2005). Thus, to the extent Fife contends Dr. Luong’s alleged fraud justifies relief under Rule 60(b)(6), this contention is unavailing. E.g. , id. To the extent he contends the district court’s failure to appoint counsel

or an in de pendent medical expert justifies relief under Rule 60(b)(6), Fife has not shown this claim was raised “within a reasonable time”. F E D
. R. C IV
. P. 60(c)(1). AFFIRMED.

3 Case: 12-10109 Document: 00512086456 Page: 3 Date Filed: 12/17/2012