ELD-004 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-2460 ___________

VITO A. PELINO, Appellant

v.

JOHN E. WETZEL; ROBERT GILMORE; MICHAEL ZAKEN ____________________________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-20-cv-00326) District Judge: Honorable Arthur J. Schwab ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 23, 2022

Before: GREENAWAY, JR., KRAUSE, and MATEY, Circuit Judges

(Opinion filed: January 3, 2023) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Vito Pelino, an inmate proceeding pro se and in forma pauperis, appeals from the

District Court’s order denying his post-judgment motion. We will summarily affirm the

District Court’s judgment.

I.

In March 2020, Pelino initiated this lawsuit challenging a Pennsylvania

Department of Corrections (“DOC”) mail policy, which he alleged violates the First and

Fourteenth Amendments to the United States Constitution. Under the policy, incoming

non-privileged mail is sent to a third party, Smart Communications, for electronic

scanning, after which inmates receive a photocopy of their mail. Pelino alleged that the

policy permits storage of personal mail in an electronic database for a period of seven

years. He sought injunctive relief, a declaratory judgment, and court costs.

The District Court granted the defendants’ motion to dismiss Pelino’s amended

complaint in February 2021, and we affirmed. See Pelino v. Wetzel, No. 21-1363,

(3d Cir. Apr. 27, 2022) (per curiam). Pelino then filed a motion for relief

from the judgment under Federal Rule of Civil Procedure 60(b) in the District Court,

arguing that he possessed new evidence supporting his contention that the mail policy

allows electronic storage of non-privileged inmate mail for seven years, and that the

defendants engaged in fraud by asserting that they destroy mail after 45 days. The

District Court denied the motion, concluding that it was untimely and without merit.

Pelino appeals.

2 II.

We have jurisdiction over this appeal pursuant to

. See Ohntrup

v. Firearms Ctr., Inc.,

(3d Cir. 1986) (per curiam). We review the

District Court’s order denying the Rule 60(b) motion for abuse of discretion. Budget

Blinds, Inc. v. White,

(3d Cir. 2008). We may affirm on any basis

supported by the record, see Murray v. Bledsoe,

(3d Cir. 2011) (per

curiam), if the appeal presents no substantial question, see 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

III.

Pelino argues that his motion was brought under Rule 60(b)(6), which has no

explicit time limit, and that the District Court accordingly erred in concluding that his

motion was untimely. However, as Pelino’s motion relied on newly discovered evidence

and allegations of fraud on the part of the defendants, it is better construed as one brought

under Rule 60(b)(2) or 60(b)(3). See Fed. R. Civ. P. 60(b)(2)-(3) (providing that a court

may relieve a party from a judgment based on, respectively, “newly discovered evidence

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

trial under Rule 59(b)” or “fraud . . . , misrepresentation, or misconduct by an opposing

party”). Such motions must be filed “no more than a year after the entry of the judgment

or order” at issue. Fed. R. Civ. P. 60(c)(1); see also Moolenaar v. Gov’t of V.I.,

, 1346 n.5 (3d Cir. 1987) (noting that “[a]n appeal does not toll this time period”).

3 Here, the District Court dismissed Pelino’s action in February 2021, and Pelino did not

file his Rule 60(b) motion until May 2022, several months late. While Pelino is correct

that motions under Rule 60(b)(6) are not subject to a one-year limitation, see Fed. R. Civ.

P. 60(c)(1), that provision “is available only when Rules 60(b)(1) through (b)(5) are

inapplicable,” Kemp v. United States,

(2022), and may not be used

“as a means by which the time limitations of 60(b)(1-3) may be circumvented,” Stradley

v. Cortez,

(3d Cir. 1975). Accordingly, we agree with the District

Court that Pelino’s motion was untimely.

Even if his motion could be construed as one under Rule 60(b)(6), moreover,

Pelino failed to show “extraordinary circumstances” justifying relief. See Budget Blinds,

(explaining that a showing of extraordinary circumstances involves

demonstrating that “without relief from the judgment, an extreme and unexpected

hardship will result” (citation and internal quotation marks omitted)). As the District

Court noted, Pelino’s motion was essentially an effort to re-litigate the merits of his

amended complaint. Although he pointed to evidence supporting his contention that

electronic copies of non-privileged mail are stored in Smart Communications’ database

for seven years, we accepted Pelino’s allegation to that effect as true in affirming the

District Court’s order dismissing Pelino’s amended complaint. See Pelino,

, at *1-2. Thus, we agree with the District Court that Pelino’s motion also lacked

merit.

4 Accordingly, we will affirm the judgment of the District Court.

5