897 F. 2d 529 - Moorish American Moslems

Before KENNEDY and RYAN, Circuit Judges, and ANN ALDRICH, District Judge.*

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiffs, eighteen (18) inmates incarcerated at the Chillicothe Correctional Institution (CCI), brought a civil rights action alleging violations of their first amendment right to free exercise of religion. Defendants moved for summary judgment and for sanctions. The district court denied defendants' motion for sanctions and granted defendants' motion for summary judgment. Plaintiffs appealed the district court's decision which was affirmed. Plaintiffs then filed a motion for relief from judgment under Fed.R.Civ.P. 60(2) and (3). This appeal followed the denial of the latter motion. The parties have briefed the issues, plaintiffs proceeding on their own behalf.

Upon consideration, we find the appeal to be without merit. We review the denial of a Fed.R.Civ.P. 60(b) motion for an abuse of discretion. See Union Oil Co. of California v. Service Oil Co., 766 F.2d 224, 227 (6th Cir.1985). A review of the documents attached to plaintiffs' motion to vacate judgment reveals that the "newly discovered evidence" could have been discovered by due diligence and submitted to the court while the case was still pending. Furthermore, such "newly discovered evidence" is merely cumulative of matters considered by the district court. Moreover, plaintiffs' fraud claim is insufficient to merit vacating the original summary judgment in favor of the defendants. Review of the record does not reveal the requisite clear and convincing evidence sufficient to establish fraud under Fed.R.Civ.P. 60(b)(3). See Simons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir.1983).

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.