Omar Folk v. Warden Schuylkill FCI

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________ No. 23-1936 ___________ OMAR SIERRE FOLK, Appellant v.

WARDEN SCHUYLKILL FCI

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:21-cv-01986) District Judge: Honorable Robert D. Mariani

____________________________________

Submitted Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 on September 21, 2023

Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges

(Opinion filed: October 11, 2023) ____________________________________ ___________ OPINION * ___________

PER CURIAM

Omar Folk, a federal inmate proceeding pro se and in forma pauperis, appeals from the District Court’s denial of his post-judgment motion. For the following reasons, we will summarily affirm.

In November 2021, Folk filed a petition in the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 2241, arguing that he was de- prived of his right to due process when he was sanctioned with a disciplinary violation which resulted in the loss of 27 days of good-time credits. In October 2022, the District Court found that Folk was afforded all of his procedural protections and denied his peti- tion. Folk did not appeal. Instead, three months later, Folk filed a post-judgment motion under Fed. R. Civ. P. 60(b)(1). The District Court denied that motion. 1 Folk timely ap- pealed.

We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s order denying Folk’s Rule 60(b) motion for an abuse of discretion. See Jackson v. Danberg, 656 F.3d 157, 162 (3d Cir. 2011). 2 We may summarily affirm if an appeal fails to present a substantial question and may do so on any basis supported by the record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

Under Rule 60(b)(1), a party may seek relief from judgment due to “mistake, inad- vertence, surprise, or excusable neglect.” In his Rule 60(b) motion, Folk reiterated the claims raised in his § 2241 petition and described the District Court’s denial order as “mind-blowing,” unjust, and legally flawed. ECF No. 26 at 4-5. Folk, however, did not specifically identify any mistake or other basis on which Rule 60(b) relief could have been granted. To the extent that Folk sought to use the Rule 60(b) motion as a substitute for an appeal, that was an inadequate basis for relief, too. See Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988) (“a Rule 60(b) motion may not be used as a substitute for ap- peal”), overruled on other grounds by Lizardo v. United States, 619 F.3d 273, 276-77 (3d Cir. 2010). Accordingly, the District Court did not abuse its discretion in denying Folk’s motion.

Folk’s appeal presents no substantial question, and we will summarily affirm the Dis- trict Court’s judgment. 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. We deny Folk’s motion for a briefing schedule or to remand this action to the District Court. See C.A. No. 9. jurisdiction over the underlying order denying Folk’s petition. See Fed. R. App. P. 4(a)(1)(B) (setting a 60-day time limit for filing a notice of appeal when one party is a United States agency, officer, or employee); Bowles v. Russell, 551 U.S. 205, 214 (2007).