*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30042

(Summary Calendar)

NOBLE MARSHALL, 

Plaintiff-Appellant,

versus

DUNCAN S. KEMP, ET AL., 

Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of Louisiana

(93-CV-2359H)

(May 15, 1995)

Before DUHÉ, WIENER and SMITH, Circuit Judges. 

PER CURIAM:* 

 

In this civil rights action Plaintiff-Appellant Noble Marshall

appeals from the district court's denial of his Federal Rules of

Civil Procedure 60(b) motion for relief from judgment and from the
2

court's failure to hold an evidentiary hearing prior to dismissing

his complaint. Finding no reversible error, we affirm. 

I

FACTS AND PROCEEDINGS

Proceeding pro se and in forma pauperis, Marshall filed a

42 U.S.C. § 1983 complaint against Tangipahoa Parish District

Attorney Duncan S. Kemp; Judge Jefferson D. Hughes; Judge James E.

Kuhn; Clerk of Court John J. Dahmer; Deputy Clerk Cynthia Johnson;

Indigent Defender Michael Pawlus; and Tangipahoa Parish Assistant

District Attorneys Clara E. Toombs, Scott Sledge, and Pat Dunn.

Marshall claims that he was falsely imprisoned by the defendants

before and after his state court conviction for armed robbery. He

alleges that the defendants falsified the transcripts and withheld

certain documents and information from him. His claims comprise

prosecutorial misconduct, general civil rights violations, and

conspiracy, for which he seeks damages, attorneys' fees, and court

costs. 

Over Marshall's objections to the magistrate judge's report,

some of Marshall's claims were dismissed by the district court

without prejudice as habeas corpus claims for failure to exhaust

state remedies; and his claims against Hughes, Kuhn, Kemp, Toombs,

Sledge and Dunn were dismissed as frivolous, but without prejudice,

on the basis of absolute immunity. The court stayed and severed

the claims against Pawlus, Dahmer, and Johnson, pending the
 

1 Final judgment was entered before the United States Supreme

Court issued its opinion in Heck v. Humphrey, 114 S. Ct. 2364

(1994). 

3

exhaustion of state and federal habeas corpus remedies.1 

Well over a year later Marshall filed a motion requesting the

district court to reconsider its order or, alternatively, to allow

an interlocutory appeal. Marshall argued that he had newly

discovered law and facts. He also sought to add four additional

named defendants and four unnamed defendants, but he failed to

identify the claims against them. The district court denied the

motion, treating it as a Rule 60(b) motion. 

II

ANALYSIS

A. Entitlement to Proceed IFP on Appeal

The district court granted Marshall's motion to proceed IFP in

that court. In its order denying Marshall's motion for

reconsideration, the district court stated that Marshall's "request

for leave to appeal the September 2, 1993, interlocutory order is

also DENIED. [Marshall] has shown no good cause for the appeal nor

for the inordinate delay in seeking said appeal." This statement

does not constitute a decertification of Marshall's IFP status.

See Fed. R. App. P. 24(a). Marshall is entitled to proceed IFP in

this court. 

B. Rule 60(b) Motion for Relief from Judgment

Marshall's postjudgment "motion to reconsider" was filed over

15 months after the entry of the district court's judgment

dismissing his civil rights complaint. Any postjudgment motion
4

that challenges the underlying judgment, requests relief other than

correction of a purely clerical error, and is served more than ten

days after judgment is entered, is treated as a motion under

Fed. R. Civ. P. 60(b). Harcon Barge Co. v. D & G Boat Rentals,

784 F.2d 665, 667 (5th Cir.) (en banc), cert. denied, 479 U.S. 930

(1986). Therefore, Marshall's motion for reconsideration was

treated correctly by the district court as a Rule 60(b) motion for

relief from the judgment. See Ford v. Elsbury, 32 F.3d 931, 937

n.7 (5th Cir. 1994). 

Our review is limited to whether the district court abused its

discretion in denying the Rule 60(b) motion. Carimi v. Royal

Caribbean Cruise Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992).

"It is not enough that the granting of relief might have been

permissible, or even warranted--denial must have been so

unwarranted as to constitute an abuse of discretion." Seven Elves,

Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981).

Generally, the denial of a Rule 60(b) motion does not bring up the

underlying judgment for review. See Harrison v. Byrd, 765 F.2d

501, 503 (5th Cir. 1985). 

Rule 60(b) lists the reasons that authorize the district court

to relieve a party from a final judgment. In considering a Rule

60(b) motion, the district court should consider the following

factors: (1) final judgments should not be disturbed lightly;

(2) a Rule 60(b) motion is not to be used as a substitute for

appeal; (3) the rule should be interpreted liberally to do

substantial justice; (4) whether the motion was made within a
5

reasonable time; (5) if the judgment was a default or dismissal

without consideration of the merits, whether the interest in

deciding cases on the merits outweighs the interest in the finality

of judgments; (6) whether there are any intervening equities that

would make it inequitable to grant relief; and (7) any other

factors relevant to the justice of the judgment under attack.

Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 356 (5th Cir.

1993). Relief is appropriate under Rule 60(b)(6) "only if

extraordinary circumstances are present." American Totalisator

Corp. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir. 1993)

(internal quotations and citation omitted). 

We liberally construe the briefs of pro se appellants. Haines

v. Kerner, 404 U.S. 519, 520 (1972). Liberally construing

Marshall's appellate arguments, we see that he argues that the

district court should have granted his motion because Judge Kuhn,

a traffic and juvenile court judge, was without jurisdiction over

Marshall's criminal proceeding. 

The district court suggested that the motion for

reconsideration was not timely filed for the purposes of Rule

60(b)(1),(2), or (3) as the order from which Marshall sought relief

had been entered more than a year before Marshall filed his motion

for relief. See Fed. R. Civ. P. 60(b). The district court noted

that Rule 60(b)(6) specifies that a court may relieve a party from

the effects of an order for "any other reason justifying relief

from the operation of judgment" when that motion is brought within

a reasonable time. The court determined, however, that fifteen
6

months was not a reasonable time. As Marshall's appellate brief

fails to address the determination that his motion was not made in

a reasonable time, we deem that issue to have been abandoned. 

As the district court observed, the only new allegation

asserted in Marshall's Rule 60(b) motion was that Judge Kuhn was

not immune from suit because, as a traffic and juvenile court

judge, he acted outside his jurisdiction in handling Marshall's

criminal proceeding. The district court observed that Marshall

submitted no tangible support for his contention that Kuhn was

acting outside the scope of his judicial authority. The court also

noted that Marshall provided no cause for the addition of other

defendants, and that he failed to prove exhaustion of his state or

federal habeas corpus remedies. 

Marshall has failed to establish that "extraordinary

circumstances are present," requiring relief under Rule 60(b)(6).

See American Totalisator Corp., 3 F.3d at 815. As Marshall has not

shown that the district court's denial of his Rule 60(b) motion was

so unwarranted as to constitute an abuse of discretion, we must

affirm the district court's ruing. 

C. Evidentiary Hearing

Marshall insists that the district court erred in dismissing

his civil rights complaint without holding an evidentiary hearing.

As review of the underlying judgment of the district court is

precluded, and as this issue was not asserted in Marshall's 60(b)

motion, we decline to consider it. See Harrison, 765 F.2d at 503.

AFFIRMED.