*

 This order and judgment is not binding precedent except under the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.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1

 Because Hernandez is proceeding pro se, we construe his filings liberally. 

See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).

FILED

United States Court of Appeals

Tenth Circuit

January 25, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WALTER HERNANDEZ, SR.,

Plaintiff-Appellant, No. 09-3180

v. (D. of Kan.)

E. J. GALLEGOS, Former Warden,

USP-Leavenworth, KENDALL

HUGHES, Chaplin Director, Life

Connection Program,

Defendants-Appellees.

(D.C. No. 07-CV-3004-SAC)

ORDER AND JUDGMENT*

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.** 

Walter Hernandez, Sr., a federal prisoner appearing pro se and in forma

pauperis,1

 appeals the district court’s refusal to grant relief for reconsideration of

his civil rights claims pursuant to Federal Rule of Civil Procedure 60(b). The

Appellate Case: 09-3180 Document: 01018354791 Date Filed: 01/25/2010 Page: 1 
-2-

district court found that the new evidence Hernandez’s Rule 60(b) motion sets

forth is not material to his claim. 

We have jurisdiction under 28 U.S.C. § 1291, and AFFIRM the ruling of

the district court. 

I. Background

Hernandez filed a complaint under 42 U.S.C. § 1983 against the chaplain

and warden of the United States Penitentiary in Leavenworth, Kansas. 

Hernandez, alleging that exposure to second-hand smoke at USP-Leavenworth in

2003 and 2004 caused him injury, claimed the chaplain and the warden violated

federal law by allowing smoking at the Penitentiary. Hernandez also claimed the

chaplain violated federal law by assigning him to cells with smoking inmates in

retaliation for raising security concerns.

The district court dismissed Hernandez’s complaint in an order and separate

judgment on July 30, 2008. The district court found Hernandez failed to set forth

allegations establishing that the chaplain and the warden personally participated

in causing him to be exposed to an environmental hazard that was contrary to

contemporary standards or that posed an unreasonable risk of harm to his health

in the near future. The district court also concluded Hernandez’s retaliation claim

was time barred. 

Hernandez filed the Rule 60 motion giving rise to this appeal on May 1,

2009. In that motion, entitled “Motion Based on Newly Discovered Evidence,

Appellate Case: 09-3180 Document: 01018354791 Date Filed: 01/25/2010 Page: 2 
2

 “When the United States or its officer or agency is a party, the notice of

appeal may be filed by any party within 60 days after the judgment or order

appealed from is entered.” Fed. R. App. P. 4(a)(1)(B). 

-3-

Rule 60(b),” Hernandez identifies as newly discovered evidence possible

motivations for the chaplain’s alleged role in his claim. He states that the

chaplain was transferred to USP-Leavenworth after an inmate assaulted him and

his sister at another facility, making him “paranoid” of inmates. 

The district court refused to grant Hernandez relief from its judgment based

on his Rule 60(b) motion. In an order dated May 20, 2009, the district court

denied the motion, finding that the newly discovered evidence was not material to

Hernandez’s claims. The district court noted the evidence cited concerned only

the chaplain’s past experiences at unspecified times with inmates other than

Hernandez and was not sufficiently related to Hernandez’s second-hand smoke

claims. 

II. Discussion

Preliminarily, we must take up the issue of whether Hernandez’s notice of

appeal had been timely filed pursuant to Federal Rule of Appellate Procedure 4.2

Hernandez contends that his appeal relates to the district court’s May 20, 2009

order on the Rule 60 motion, not the original order dismissing his appeal. Based

on that clarification, we find that Hernandez’s notice of appeal satisfies Rule 4.

Turning to the merits, we conclude the district court did not err in denying

Hernandez’s motion. We review the denial of a Rule 60(b) motion for abuse of

Appellate Case: 09-3180 Document: 01018354791 Date Filed: 01/25/2010 Page: 3 
-4-

discretion. See Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th

Cir. 2005). “Rule 60(b) relief is extraordinary and may only be granted in

exceptional circumstances.” Id. (internal quotation marks omitted). A Rule 60(b)

motion is not a substitute for an appeal—“our review is meaningfully narrower

than review of the merits of a direct appeal.” Amoco Oil Co. v. EPA, 231 F.3d

694, 697 (10th Cir. 2000). Given the lower court’s discretion, the district court’s

ruling is only reviewed to determine if a “definite, clear, or unmistakable error

occurred below.” Id. (internal quotation marks omitted). We may reverse only if

we find “a complete absence of a reasonable basis and [are] certain that the

decision is wrong.” Zurich, 426 F.3d at 1289.

Hernandez requests relief based on newly discovered evidence pursuant to

Rule 60(b)(2). Rule 60(b)(2) provides that, “on motion and just terms, the court

may relieve a party . . . from a[n] order . . . for . . . newly discovered evidence

that, with reasonable diligence, could not have been discovered in time to move

for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). In order to provide

the basis for relief, the newly discovered evidence must, among other things, be

material. Zurich, 426 F.3d at 1289. 

First, we note that the evidence Hernandez cites in his motion relates only

to the chaplain. The newly discovered evidence does not in any way concern the

warden. The dismissal of the warden’s claims thus are not implicated by the

motion.

Appellate Case: 09-3180 Document: 01018354791 Date Filed: 01/25/2010 Page: 4 
3

 Rule 60(b)(6) allows a court to relieve a party from an order for “any

other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). To the extent

Hernandez’s motion can be interpreted as seeking relief under Rule 60(b)(6),

rather than Rule 60(b)(2), we reach the same conclusion for the same reasons. 

See Yapp v. Excel Corp., 186 F.3d 1222, 1232 (10th Cir. 1999) (“Rule 60(b)(6)

relief is even more difficult to attain and is appropriate only when it offends

justice to deny such relief. The denial of a 60(b)(6) motion will be reversed only

if we find a complete absence of a reasonable basis and are certain that the

decision is wrong.” (internal punctuation and citation omitted)). 

-5-

Second, we cannot find that the district court committed a “definite, clear,

and unmistakable” error in holding that the cited evidence is not material. It is

not apparent, and Hernandez does not explain, why the chaplain’s past

experiences with other inmates caused him to allow inmates to smoke or retaliate

against Hernandez. Nor is it clear how the evidence identified buttresses the

other aspects of Hernandez’s claims. Moreover, any inferences that could be

drawn from such evidence would not save the retaliation claim as time barred. 

Accordingly, for much of the same reasons as the district court, we conclude that

the court did not abuse its discretion in denying Hernandez’s Rule 60(b) motion.3

 

III. Conclusion

For the foregoing reasons, we AFFIRM the ruling of the district court.

Entered for the Court,

Timothy M. Tymkovich

Circuit Judge 

Appellate Case: 09-3180 Document: 01018354791 Date Filed: 01/25/2010 Page: 5