Johnson v. Department of Housing Preservation & Development

25 F. App'x 81

• Court: Court of Appeals for the Second Circuit
• Decided: January 31, 2002
• Docket: No. 01-7753
• Status: Published

Opinion

SUMMARY ORDER

This cause came on to be heard on the record from the United States District Court for the Southern District of New York, and was argued by appellant pro se and by counsel for the City appellees, and was submitted by appellee Brickhouse pro se.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the orders of said District Court be and they hereby are affirmed.

Plaintiff pro se Theodore F. Johnson appeals from orders of the United States District Court for the Southern District of New York, Sidney H. Stein, Judge, denying his March 22, 2001 motion to vacate the September 29, 2000 final judgment (“September 2000 Judgment”) that dismissed his complaint, and denying his motion for a default judgment. For the reasons that follow, we affirm.

Johnson’s brief principally challenges rulings and events that preceded the dismissal of his complaint in September 2000. However, Johnson failed to file a notice of appeal within the 30 days allowed following the September 29 entry of the September 2000 Judgment, see Fed. R.App. P. 4(a); and his Rule 60(b) motion to vacate, filed more than five months after the entry of judgment, did not extend his time to appeal from the September 2000 Judgment, see Fed. R.App. P. 4(a)(4)(A)(vi) (appeal deadline is extended by a Rule 60(b) motion only if the motion is filed no later than 10 days after entry of judgment); Jones v. UNUM Life Insurance Co. of America, 223 F.3d 130, 137 (2d Cir.2000). As no timely appeal was taken from the September 2000 Judgment of dismissal, and an appeal from the denial of a Rule 60(b) motion calls up for review only the denial of the motion, not the merits of the underlying judgment, see, e.g., Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978), we lack jurisdiction to consider Johnson’s challenges to the September 2000 Judgment itself or to any interlocutory rulings entered prior to that judgment, see generally id. at 264, 98 S.Ct. 556 (time limit for filing a notice of appeal is “mandatory and jurisdictional”). In sum, the merits of the September 2000 Judgment are not properly before us.

The denial of a Rule 60(b) motion is reviewable only for abuse of discretion. See, e.g., Sampson v. Radio Corporation of America, 434 F.2d 315, 317 (2d Cir.1970). Johnson has not called to our attention any basis for finding that the district court abused its discretion in denying his motion to vacate the judgment. Although Johnson asserts that the district judge and the magistrate judge were biased against him, we have seen nothing in the record to support that claim.

Johnson also challenges the district court’s denial of a motion he filed, after the denial of his Rule 60(b) motion, to have a default judgment entered against defendants for failure to answer an amended complaint. The motion for a default judgment was properly denied because, inter alia, it was made after final judgment had been entered closing the case, and it was premised on an amended complaint that Johnson was not entitled to file.

We note also that if Johnson’s challenges to the underlying judgment and the court’s interlocutory rulings were properly before us, we would reject them for lack of merit.

We have considered all of Johnson’s contentions that are properly before us and have found them to be without merit. The orders of the district court are affirmed.