06-3746-cv

M a r t i n e z v. United States

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RU L IN G S BY SUMMARY ORDER DO NO T HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L ED AFTER JANUARY 1, 2007, IS PERM I T T E D AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

FE D E R A L RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT

C I T E S A SUMMARY ORDER , IN EACH PARA G R A P H IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION

M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY

O R D E R

P U B L IC L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P ://W W W .C A 2.U S C O U R T S .G O V /), THE PARTY CITING THE SUMMARY ORDER M U S T FILE AND SERVE A

C O P Y OF THAT SUMMARY ORDER TOGETH E R WITH THE PAPER IN WHICH THE SUMM A R Y ORDER IS CITED.

IF NO COPY IS SERVED BY REASO N OF THE AVA I L A B I L I T Y OF THE ORDER O N SUCH A DATA B A S E , THE

C IT A TI O N MUST INCLUDE REFEREN C E TO THA T DAT A B A S E AND THE DOC K E T NUM B E R O F THE CASE IN

W H I C H THE O R D E R WAS ENTERED. 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 15th day of May, two thousand and seven. PRESENT: HON. RALPH K. WINTER, HON. SONIA SOTOMAYOR, HON . PETER W. HALL, Circuit Judges. Alfonso Martinez, Plaintiff-Appellant, -v.- No. 06-3746-cv United States of America, Defendant-Appellee. Alfonso Martinez, pro se, Fort Dix, NJ. For Plaintiff-Appellant: For Defendant-Appellee: Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Varuni Nelson, Laura D. Mantell, Assistant United States Attorneys, Eastern District of New York), Brooklyn, NY.

UP ON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND DECREED that the order of the United States District Court for the Eastern District of New York is AFFIRMED.

Appellant Alfonso Martinez, pro se, appeals the order of the United States District Court for the Eastern District of New York (Carol B. Amon, J.) entered on July 24, 2006, denying his Federal Rule of Civil Procedure 60(b) motion for relief from the district court's order, which granted the government's summary judgment motion and dismissed Martinez's complaint as untimely. We presume the parties' familiarity with the facts and procedural history of the case, and the issues on appeal.

The district court did not abuse its discretion in denying appellant's motion because appellant merely challenged the underlying merits of the judgment and failed to allege any extraordinary circumstances that would warrant relief under Rule 60(b)(6). See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (reviewing the grant or denial of a Rule 60(b) motion for abuse of discretion). Further, to the extent that appellant based his motion on newly discovered evidence pursuant to Rule 60(b)(2), his claim was also without merit because the alleged new evidence provided no insight into why he failed to file his original complaint within the applicable statute of limitations.

The order of the district court is therefore affirmed.

FOR THE COURT: T h o m a s Asreen, Acting Clerk By: