FILED
NOT FOR PUBLICATION FEB 14 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE MULLEN, No. 11-56533
Plaintiff - Appellant, D.C. No. 2:11-cv-01374-GHK
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Steve Mullen appeals pro se from the district court’s judgment dismissing
his independent action to set aside a prior judgment for fraud on the court under
Fed. R. Civ. P. 60(b). We have jurisdiction under 28 U.S.C. § 1291. We review
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the dismissal of an independent action under Rule 60(b) for an abuse of discretion.
Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 780 (9th Cir. 2003). We
affirm.
The district court did not abuse its discretion in dismissing Mullen’s
independent action because his allegations fail to state a facially plausible claim of
fraud on the court. See United States v. Beggerly, 524 U.S. 38, 47 (1998) (“[A]n
independent action should be available only to prevent a grave miscarriage of
justice.”); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (claim
must be “plausible on its face”). Mullen’s allegation that the Department of Justice
Civil Rights Division could not locate an audio tape he requested in its central
filing system is insufficient to support a “plausible” inference that a United States
District Judge and two Assistant United States Attorneys conspired to fabricate that
tape. Bell Atl. Corp., 550 U.S. at 570.
AFFIRMED.
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