James E. Kimsey v. George Sumner

977 F.2d 589 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. James E. KIMSEY, Plaintiff-Appellant, v. George SUMNER, Defendant-Appellee. No. 91-15556. United States Court of Appeals, Ninth Circuit. Submitted Oct. 13, 1992. * Decided Oct. 19, 1992. Before BEEZER, CYNTHIA HOLCOMB HALL and WIGGINS, Circuit Judges. 1 MEMORANDUM ** 2 James E. Kimsey, a Nevada state prisoner, appeals pro se the district court's denial of the his Fed.R.Civ.P. 60(b) motion to vacate the district court's summary judgment in his 42 U.S.C. § 1983 action. Kimsey's section 1983 claim alleged that prison officials violated his fifth and eight amendment rights by placing him in a cell with an inmate who had tested positive for the HIV virus. We review for the denial of a Rule 60(b) motion for an abuse of discretion. Pena v. Seguors La Commercial, S.A., 770 F.2d 811, 814 (9th Cir.1985). We affirm. 3 An appeal from a denial of a Rule 60(b) motion does not bring up the merits of the underlying judgment…