Introduction

In Sullivan v. Graham, consolidated Nos. 24‑3113 and 24‑3114, the United States Court of Appeals for the Tenth Circuit addressed two related appeals brought by a pro se litigant, Scott B. Sullivan, following the denial of his Federal Rule of Civil Procedure 60(b) motions to set aside district court judgments entered in July 2023. Mr. Sullivan also challenged the district court’s denial of his request for appointed counsel in connection with his post‑judgment motion practice.

The cases trace back to two civil actions in the District of Kansas (D. Kan. Nos. 2:22‑cv‑02319‑SRB and 2:22‑cv‑02491‑SRB) in which Mr. Sullivan sued an array of defendants including physicians, law firms, insurers, and even state and federal judges. The district court dismissed the underlying suits, and the Tenth Circuit ultimately affirmed those judgments in July 2025 after vacating an earlier 2024 affirmance because of a recusal issue.

The key issues presented on these new appeals were:

• Whether Mr. Sullivan’s appeals from the denial of his Rule 60(b) motions were timely and, if so, what the permissible scope of such appeals is.
• Whether the district court abused its discretion in denying Rule 60(b) relief where the movant largely reargued the merits of the dismissed claims.
• Whether the district court abused its discretion in denying appointment of counsel for Mr. Sullivan in connection with his Rule 60(b) motion.
• Whether dismissal of the appeals as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) was warranted.

Summary of the Opinion

The Tenth Circuit (Judges Matheson, Carson, and Federico; order authored by Judge Carson) dismissed both appeals as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The court held it had jurisdiction under 28 U.S.C. § 1291, but emphasized the narrow scope of review: a notice of appeal filed more than 30 days after the underlying judgments is timely only as to the order denying the Rule 60(b) motion—not the underlying merits judgments. Relying on Servants of the Paraclete v. Does, the panel reiterated that an appeal from the denial of a Rule 60(b) motion “addresses only the district court’s order denying the motion, and not the underlying decision itself.”

On the merits of the Rule 60(b) denial, the panel applied abuse‑of‑discretion review (Choice Hospice, Inc. v. Axxess Tech. Sols., Inc.) and found no abuse. The district court had analyzed the motion under Rule 60(b)(2) (newly discovered evidence) and 60(b)(6) (catch‑all), found no new evidence, and concluded the motion merely repeated arguments previously rejected. The appellate court further held there was no abuse of discretion in denying appointment of counsel, given the district court’s consideration of the merits, factual issues, the movant’s ability to present claims, and the complexity of the legal issues.

After rejecting Mr. Sullivan’s arguments—which the court characterized as attempts to reargue the merits—the panel dismissed the appeals as frivolous, citing Braley v. Campbell (“An appeal is frivolous when the result is obvious, or the appellant’s arguments of error are wholly without merit.”). The court denied an appellees’ timeliness-based motion to dismiss “in part,” recognizing that while the appeals were untimely as to the underlying judgments, they were timely as to the orders denying Rule 60(b) relief.

The court ordered submission without oral argument and designated the order and judgment as nonbinding precedent (with the standard exceptions for law of the case, res judicata, and collateral estoppel) but citable for its persuasive value under Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.

Analysis

Precedents Cited and Their Influence

• Servants of the Paraclete v. Does, 204 F.3d 1005 (10th Cir. 2000):
  • Two distinct uses: (1) Scope of appeal—an appeal from denial of a Rule 60(b) motion permits review only of that denial, not the underlying merits judgment; and (2) Substance—motions for reconsideration (including Rule 60(b) requests) are not vehicles to rehash arguments or advance points that could have been raised earlier.
  • This case anchored the panel’s twin holdings: the timeliness analysis (appeal limited to the post‑judgment denial) and the substantive dismissal (Rule 60(b) cannot relitigate the merits).
• Choice Hospice, Inc. v. Axxess Tech. Sols., Inc., 125 F.4th 1000 (10th Cir. 2025):
  • Confirms the highly deferential abuse‑of‑discretion standard for reviewing denials of Rule 60(b) motions, characterizing reversal as appropriate only if the decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
  • The reliance on this recent authority underscores continuity and consistency in the Tenth Circuit’s approach to Rule 60(b) review.
• McCarthy v. Weinberg, 753 F.2d 836 (10th Cir. 1985):
  • Confirms that appointment of counsel in civil cases is discretionary and depends upon a showing of sufficient merit.
  • The district court applied familiar factors—merits, factual issues, litigant’s ability to present the case, and legal complexity—exactly the contours the Tenth Circuit has long recognized.
• Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836 (10th Cir. 2005):
  • Reiterates that courts liberally construe pro se filings, but courts are not advocates; they cannot construct arguments or comb the record for litigants. This frames the court’s limited tolerance for conclusory or repetitive Rule 60(b) submissions, even from pro se parties.
• Braley v. Campbell, 832 F.2d 1504 (10th Cir. 1987):
  • Defines a “frivolous” appeal as one where the result is obvious or the arguments wholly lack merit.
  • Provides the doctrinal hook for dismissal under 28 U.S.C. § 1915(e)(2)(B)(i).

Legal Reasoning

The panel proceeded along three main axes: jurisdiction and timeliness; Rule 60(b) standards and application; and appointment of counsel, followed by the in forma pauperis screening outcome.

1. Jurisdiction and Timeliness
   • The appellees (Deryl Wynn, Jodi Fox, and McAnany, Van Cleave & Phillips, P.A.—the “MVP Appellees”) moved to dismiss for untimeliness, pointing out that Mr. Sullivan noticed his appeals well beyond 30 days after the July 2023 judgments.
   • The court agreed that any challenge to the underlying merits judgments was untimely. However, the notices of appeal were filed within 30 days of the orders denying Rule 60(b) relief, making the appeals timely as to those denials.
   • Citing Servants of the Paraclete, the panel emphasized that the scope of the appeal is limited to review of the denial order; the merits of the original dismissal are not before the court.
2. Rule 60(b) Standards and Application
   • The district court considered only Rule 60(b)(2) (newly discovered evidence) and 60(b)(6) (catch‑all), the only potentially applicable subsections in this context.
   • Rule 60(b)(2): The district court found Mr. Sullivan identified no new evidence. This finding was particularly salient because the underlying dismissal included a failure to satisfy Rule 8 pleading standards—an insufficiency not cured by post‑judgment “new evidence” that was never identified in any event.
   • Rule 60(b)(6): The district court concluded the motion largely reasserted arguments previously raised and rejected, which is not a basis for relief under the “extraordinary” catch‑all provision.
   • On appeal, applying Choice Hospice’s abuse‑of‑discretion standard, the Tenth Circuit found no arbitrariness or unreasonableness in those conclusions. The panel added that Mr. Sullivan’s appellate briefing attempted to reargue the merits—exactly what Servants of the Paraclete forbids in the Rule 60(b) posture.
3. Appointment of Counsel
   • Under McCarthy v. Weinberg, appointment of counsel in a civil case is discretionary and generally requires a showing of sufficient merit.
   • The district court expressly weighed relevant considerations: the merits of the claims, the nature of factual issues, the movant’s ability to present the claims, and the complexity of the legal issues. It found no basis to appoint counsel, particularly given the absence of substantive merit in the Rule 60(b) motion.
   • The Tenth Circuit discerned no abuse of discretion in this assessment.
4. IFP Screening and Frivolousness
   • Having concluded that the appeals sought an improper rehash of the merits and failed to show any error in the denial of Rule 60(b) relief or counsel, the panel invoked 28 U.S.C. § 1915(e)(2)(B)(i) to dismiss the appeals as frivolous.
   • Relying on Braley, the court found the result “obvious” and the arguments “wholly without merit.” The statute authorizes dismissal “at any time,” notwithstanding payment of some portion of the filing fee.

Impact and Practical Implications

• Tightening the aperture for Rule 60(b) appeals: The opinion reinforces that litigants cannot use Rule 60(b) as a substitute appeal to revisit the original merits. Any appeal from the denial of Rule 60(b) relief is strictly limited to whether the district court abused its discretion in refusing to reopen the judgment.
• Timeliness clarity: Even if a post‑judgment motion is itself untimely and thus does not toll the time to appeal the merits, the denial of that motion is a separately appealable order. But the appellate court’s review will focus solely on the denial, not the underlying case.
• Higher bar for pro se Rule 60(b) motions: While pro se filings are liberally construed, this decision underscores that such leniency does not permit courts to reconstruct arguments or supply missing evidence, especially at the post‑judgment stage.
• Use of § 1915(e) to cull meritless post‑judgment appeals: The decision exemplifies the Tenth Circuit’s willingness to employ § 1915(e)(2)(B)(i) to dismiss obviously meritless appeals at the threshold, conserving judicial resources.
• Appointment of counsel remains exceptional in civil post‑judgment practice: Absent a showing of likely merit or complexity that outstrips a litigant’s capabilities, requests for counsel in civil Rule 60(b) contexts will generally be denied.
• Persuasive, not binding, but instructive: Although designated as an “Order and Judgment” without precedential force (with limited exceptions), the opinion can be cited for its persuasive value, adding to a consistent line of Tenth Circuit authorities cabining Rule 60(b) practice.

Complex Concepts Simplified

• Rule 60(b) Motions (Post‑Judgment Relief):
  • These motions ask the district court to relieve a party from a final judgment for specified reasons. Two relevant subsections here were:
    • (b)(2): Newly discovered evidence that could not have been discovered earlier with reasonable diligence and would likely change the outcome.
    • (b)(6): A catch‑all for “any other reason that justifies relief,” reserved for extraordinary circumstances.
  • Rule 60(b) is not a vehicle to reargue the case; it requires something materially different from what was already presented and rejected.
• Scope of Appeal from Denial of Rule 60(b) Relief:
  • When appealing the denial of a Rule 60(b) motion, the appellate court reviews only whether the district court abused its discretion in denying relief, not whether the original judgment was correct.
• Abuse of Discretion Standard:
  • A highly deferential standard. Reversal is warranted only if the decision was “arbitrary, capricious, whimsical, or manifestly unreasonable.” The appellate court does not substitute its judgment for the district court’s.
• Frivolous Appeals under 28 U.S.C. § 1915(e)(2)(B)(i):
  • An appeal is frivolous when the outcome is obvious or the arguments lack any legal merit. Courts may dismiss such appeals at any time, even if fees have been paid in part.
• Appointment of Counsel in Civil Cases:
  • There is no automatic right to counsel. Courts evaluate factors such as:
    • Apparent merits of the claims.
    • The nature and complexity of factual and legal issues.
    • The litigant’s ability to present the case.
• Nonprecedential Dispositions:
  • An “Order and Judgment” may not bind future cases, except under doctrines like law of the case, res judicata, and collateral estoppel. It may be cited for persuasive value under the applicable appellate rules.

Conclusion

Sullivan v. Graham reinforces several settled but critical principles about post‑judgment federal practice in the Tenth Circuit:

• Rule 60(b) relief is extraordinary and cannot be used to relitigate the merits of claims already dismissed and affirmed on appeal.
• An appeal from a Rule 60(b) denial is timely and reviewable even when an appeal of the underlying judgment would not be—but the scope of appellate review is limited to the denial order, not the underlying merits.
• Abuse‑of‑discretion review is stringent, and district courts do not err by rejecting repetitive arguments or requests that lack new evidence or extraordinary circumstances.
• Appointment of counsel in civil, post‑judgment settings remains discretionary and is typically denied where the claims appear meritless or straightforward enough for a pro se litigant to present.
• Frivolous appeals—particularly those that merely rehash already rejected arguments—will be dismissed under § 1915(e)(2)(B)(i).

Although nonprecedential, the decision provides clear guidance to litigants and counsel: finality matters, Rule 60(b) is not a second appeal, and appellate courts will not hesitate to dismiss meritless post‑judgment appeals as frivolous. The opinion thus contributes persuasively to a consistent doctrinal framework that safeguards both the integrity of final judgments and judicial economy.