10-3430-pr
    Flemming v. Rosadro


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 3rd day of November, two thousand eleven.

    PRESENT:
                JOHN M. WALKER, JR.,
                ROBERT A. KATZMANN,
                RICHARD C. WESLEY,
                      Circuit Judges.
    ______________________________________________________

    Woodrow Flemming,

                          Plaintiff-Appellant,
                                                                        10-3430-pr
                   v.

    Rosadro, Head of Regional Medical Unit, Anthony Durrante, Security, Regional Medical Unit
    Walsh Medical, Anthony Boucaud, Deputy for Administration, Upstate Correctional Facility,
    Sharma, Head Medical Doctor at Regional Medical Unit, Burdick, Medical Doctor, Admiks,
    Hearing Lieutenant and acting Captain, Regional Medical Unit, Bishop, Sergeant. for Security,
    Upstate Correctional Facility, Pierce, Security Sergeant Regional Medical Unit, N. Smith, Nurse
    Administrator, Upstate Correctional Facility, Evelyn Weissman, Head Medical Doctor, Upstate
    Correctional Facility, Deana Buffham, Medical Medication Nurse, Upstate Correctional Facility,
    Batis, Nurse, Regional Medical Unit, Lisa O'Bryant, Nurse, Reginal Medical Unit, Lovett, Security
    Officer, Regional Medical Unit, Szajer, Correctional Officer, Regional Medical Unit, Gardner,
    Correctional Officer, Sergeant, Davis, Medication Nurse, Regional Medical Unit, Miller, Nurse,
    Regional Medical Unit, Michael Maher, Acting Superintendent, Regional Medical Unit, Maria
    Tirone, Deputy Superintendent for Program, Upstate Correctional Facility, Glenn Goord, Donald
    Selsky, Lester Wright, Doctor,

                          Defendants-Appellees.

    ______________________________________________________
FOR PLAINTIFF-APPELLANT:                              Woodrow Flemming, pro se, Malone, N.Y.

FOR DEFENDANTS-APPELLEES:                             Andrew B. Ayers, Assistant Solicitor
                                                      General, Albany, N.Y.


        Appeal from the United States District Court for the Northern District of New York
(Scullin, J.).

         UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the order of said District Court be and hereby is AFFIRMED, the motion to

file a reply brief is DENIED as moot, and the motion for appointment of counsel is DENIED.

         Appellant Woodrow Flemming, pro se, appeals from the district court’s post-judgment

order denying his motion filed pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.

Flemming also moves to file a reply brief and for appointment of counsel in this appeal. We

assume the parties’ familiarity with the facts, proceedings below, and specification of appellate

issues and hold as follows.

         This Court reviews the denial of Rule 60(b) motions for abuse of discretion. Transaero,

Inc. v. La Fuerza Aerea Boliviana, 

, 729 (2d Cir. 1998). “A district court would

necessarily abuse its discretion if it based its ruling on an erroneous assessment of the law or on

a clearly erroneous view of the evidence.” 

An appeal from the denial of a

Rule 60(b) motion “brings up for review only the denial of the motion and not the merits of the

underlying judgment for errors that could have been asserted on direct appeal.” Branum v.

Clark, 

, 704 (2d Cir. 1991). A motion for relief from judgment is generally not

favored and is properly granted only upon a showing of exceptional circumstances, with the

burden of proof resting on the party seeking relief from the judgment. See Paddington Partners

v. Bouchard, 

, 1142 (2d Cir. 1994); Nemaizer v. Baker, 

, 61 (2d Cir.

1986).


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       Here, an independent review of the record and relevant case law reveals that the district

court did not abuse its discretion in denying Flemming’s motion to vacate under Rule 60(b). We

affirm for substantially the same reasons stated in the district court’s thorough and well-reasoned

July 26, 2010 memorandum and order.

       Turning to Fleming’s remaining two motions, Fleming in fact already filed a reply brief

along with supplemental exhibits. Accordingly, Fleming’s motion to file a reply brief is denied

as moot. As to Fleming’s motion for appointment of counsel, Flemming cannot show a

likelihood of success on appeal for the reasons explained above. Accordingly, appointment of

counsel is not warranted, and Fleming’s motion is denied. See 28 U.S.C. § 1915(e)(1); Cooper

v. Sargenti Co., 

, 174 (2d Cir. 1989).

       We have considered all of Flemming’s arguments, including those in his reply brief, and

find them to be without merit. Accordingly, the order of the district court is hereby

AFFIRMED, the motion to file a reply brief is DENIED as moot, and the motion for

appointment of counsel is DENIED.
                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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