DLD-311 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 20-1806

___________

JOSE MONTALBAN,

Appellant

v.

MR. POWELL; MR. VERBYLA WILLIAMS; MR. JASON GLOSSENGER; MS. 

PATRICIA BURGERHOLFF; MR. MODDROFF; MR. WALTER DOBUSHAK; MR. 

M. KABONICK; MR. JARRETT TUTTLE; ANTHONY PEDONE; MR. MARK 

BRENNAN; COREY VRABEL; C.O. GUILLARD; C.O. SNEE; C.O. SCHULTZ; 

UNITED STATES OF AMERICA; MACCA, Correctional Officer; DUSTIN M. COOK, 

PSY, D.; CAROLINE M. JOHANSON, PHD. Staff Psych; SIA JOHN GINTZ

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-17-cv-00212)

District Judge: Honorable Christopher C. Conner

____________________________________

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

September 17, 2020

Before: RESTREPO, PORTER, and SCIRICA, Circuit Judges

(Opinion filed: October 7, 2020)

_________

OPINION*

_________

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

constitute binding precedent.
2

PER CURIAM

Appellant Jose Montalban, proceeding pro se and in forma pauperis, appeals from 

the District Court’s denial of his post-judgment motions. Because the appeal presents no 

substantial question, we will summarily affirm the judgment of the District Court.

On January 27, 2017, Montalban initiated a civil rights lawsuit against nineteen 

Federal Bureau of Prison staff members at USP-Canaan, where he was incarcerated at the 

time, relying on Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 

U.S. 388 (1971). The defendants moved to dismiss the complaint or, in the alternative, 

for summary judgment, arguing, among other things, that Montalban’s claims were 

barred by the statute of limitations. The District Court converted the motion to a motion 

for summary judgment and provided Montalban with notice and an opportunity to submit 

exhibits. Concluding that Montalban’s claims were time-barred, on January 15, 2019, the 

District Court entered summary judgment for the defendants.

Montalban filed a motion for reconsideration and appealed the District Court’s 

order granting summary judgment. On January 14, 2020, the District Court denied his

reconsideration motion. Montalban then filed a second motion for reconsideration, dated 

January 23, 2020, and a motion to submit new evidence, dated February 21, 2020, which 

the District Court construed as motions under Federal Rule of Civil Procedure 60(b). On 

April 1, 2020, we affirmed the District Court’s decision to grant summary judgment to 
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the defendants. Montalban v. Powell, 799 F. App’x 111 (3d Cir. 2020). On April 2, 

2020, the District Court denied Montalban’s Rule 60(b) motions. Montalban appealed.1

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

the District Court’s denial of Montalban’s Rule 60(b) motions for abuse of discretion. 

See Budget Blinds, Inc. v. White, 536 F.3d 244, 251 (3d Cir. 2008). “The district court 

abuses its discretion if its decision rests upon a clearly erroneous finding of fact, an errant 

conclusion of law, or the improper application of law to fact.” Ragguette v. Premier 

Wines & Spirits, 691 F.3d 315, 322 (3d Cir. 2012).

The District Court did not abuse its discretion in construing Montalban’s motions

as arising under Rule 60(b). While the motions were characterized as motions for 

reconsideration, neither one was made within 28 days of the challenged summary 

1

 Montalban’s original notice of appeal, which was never amended, did not encompass 

the District Court’s January 14, 2020 denial of his reconsideration motion. See Fed. R. 

App. P. 4(a)(4)(B)(ii). His second notice, dated April 7, 2020, names both the January 

14, 2020 order and the April 2, 2020 order. However, the scope of our review is limited 

to the April 2, 2020 order. Montalban’s second notice was not filed within 30 days of the 

January 14, 2020 order, see id., and his subsequent Rule 60(b) motions—which made 

similar arguments as his unsuccessful first reconsideration motion— did not toll the time 

to appeal that order, see Turner v. Evers, 726 F.2d 112, 114 (3d Cir. 1984) (“Where, as 

here, a motion styled as one for reconsideration is made by the same party that lost an 

earlier motion covered by Rule 4(a)(4) and the factual and legal issues surrounding the 

earlier motion and the current motion are roughly similar, we see no good reason to allow 

such motions . . . to postpone the time for appeal.”); see also Aybar v. Crispin-Reyes, 118 

F.3d 10, 14 (1st Cir. 1997) (holding that the second of two successive motions for 

reconsideration did not toll the time for appeal); Trowel Trades Emp. Health & Welfare 

Tr. Fund of Dade Cty. v. Edward L. Nezelek, Inc., 645 F.2d 322, 325 (5th Cir. Unit B 

May 1981) (concluding that “successive motions of the kind enumerated in Rule 4(a)” do 

not toll the time for filing an appeal.”) (internal quotation marks omitted).
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judgment as required under Federal Rule of Civil Procedure 59. Thus, it was appropriate 

to construe them as Rule 60(b) motions. See Burtch v. Milberg Factors, Inc., 662 F.3d 

212, 230 (3d Cir. 2011) (explaining that a motion seeking to alter or reopen the judgment 

is properly construed as either a motion pursuant to Rule 59(e) or Rule 60(b), depending 

on when it was filed); see also Lewis v. Att’y Gen. of U.S., 878 F.2d 714, 722 n.20 (3d 

Cir. 1989) (emphasizing that courts are free to characterize pro se motions according to 

their substance rather than their titles).

The District Court also acted within its discretion in determining that Montalban is 

not entitled to relief under Rule 60(b). Montalban’s claims do not fit under the first five 

subsections of that provision,

2

and he has failed to show the “extraordinary circumstances 

where, without such relief, an extreme and unexpected hardship would occur” required to 

reopen proceedings under Rule 60(b)(6). Cox v. Horn, 757 F.3d 113, 115 (3d Cir. 2014) 

(quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)). We already 

considered and rejected Montalban’s arguments that his time spent pursuing the 

grievance process rendered his complaint timely filed, and that his claims should be 

deemed exhausted because the grievance process was made unavailable to him. His

attempts to relitigate issues that we already considered on appeal do not warrant relief 

under Rule 60(b). See United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003) 

2 Montalban’s motions were untimely under Rules 60(b)(1)–(3), which require filing 

within one year of the challenged judgment, Fed. R. Civ. P. 60(c)(1), and he did not claim 

that the District Court’s summary judgment is void as required under Rule 60(b)(4), or 

that it has been satisfied, released, or discharged as required under Rule 60(b)(5).
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(holding that a Rule 60(b) motion may not be used as a substitute for an appeal, and legal 

error, without more, is not a proper basis for reopening a case).

Nor does Montalban’s argument that the District Court erred in not following

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), which the Eleventh Circuit applied 

in a parallel proceeding that he initiated in Florida. See id. at 1082 (describing a two-step 

process for resolving motions to dismiss for failure to exhaust administrative remedies). 

Turner is not precedent in this Circuit. Besides, Montalban’s Eleventh Circuit case 

involved a motion to dismiss, which requires a district court to accept the allegations in a 

plaintiff’s complaint as true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). 

Here, the District Court was not required to accept Montalban’s allegations as true in 

evaluating the defendants’ motion for summary judgment. See Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986) (concluding that “in the face of [a] defendant’s 

properly supported motion for summary judgment, [a] plaintiff [cannot] rest on his 

allegations . . . without any significant probative evidence tending to support the 

complaint”) (citation and internal quotation marks omitted).

Because this appeal presents no substantial question, we will affirm. Montalban’s 

motions are denied. To the extent that he presents any requests for relief in the other 

document he has filed, those motions are denied, as well.