                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 6 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 FRANK MEHDIPOUR; ALI
 MEHDIPOUR; LADONNA
 MEHDIPOUR,

          Plaintiffs-Appellants,

               v.                                      No. 98-6168
                                                   (D.C. No. 95-CV-312)
 THE CITY OF OKLAHOMA CITY, a                          (W.D. Okla.)
 municipality and political subdivision
 of the State of Oklahoma; PATRICK
 BURNE, as public officer and
 individual,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
ordered submitted without oral argument.

      Plaintiffs Frank Mehdipour and Ali Mehdipour, appearing pro se, appeal

the district court’s denial of their motion to vacate judgment pursuant to Fed. R.

Civ. P. 60(b)(4). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

      Plaintiffs, along with Ali’s wife LaDonna Mehdipour, filed a civil rights

action on June 5, 1992, against the City of Oklahoma City and police officers

Patrick Byrne and Winforde Martin, claiming defendants subjected them to false

arrest, performed an illegal search, and improperly demolished a building

belonging to them. The district court dismissed the action on March 31, 1994,

without prejudice, because plaintiffs failed to obtain timely service, failed to

respond to one defendant’s motion to dismiss, and failed to comply with a direct

court order. Plaintiffs did not appeal that dismissal.

      Plaintiffs filed a second, essentially identical, action on February 28, 1995.

The district court granted summary judgment in favor of defendants on January

23, 1997. Plaintiffs appealed and we affirmed the district court’s judgment on

December 3, 1997.

      Not satisfied with the outcome of the litigation, plaintiffs first attempted,

without success, to vacate the district court’s judgment in the original 1992

action. Plaintiffs then filed a Fed. R. Civ. P. 60(b)(4) motion to vacate the 1995


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judgment, arguing the attorney who represented them in the 1995 action

effectively waived their claims by admitting, in response to defendants’ summary

judgment motion, that probable cause existed for the City and its employees to

arrest plaintiffs. According to plaintiffs, the district court’s grant of summary

judgment was void because they neither authorized nor agreed with such

admission. The court denied plaintiffs’ motion to vacate judgment on March 27,

1998, concluding it was “frivolous and without merit.”

      We review de novo a district court’s denial of a Rule 60(b)(4) motion to

vacate judgment.   See Wilmer v. Board of County Comm’rs      , 69 F.3d 406, 409

(10th Cir. 1995). In V.T.A., Inc. v. Airco, Inc. , 597 F.2d 220, 224-25 (10th Cir.

1979), we outlined the standards for determining whether a judgment is void

under Rule 60(b)(4):

      A judgment is not void merely because it is or may be erroneous.
      [Citations omitted.] For a judgment to be void under Rule 60(b)(4), it
      must be determined that the rendering court was powerless to enter
      it. If found at all, voidness usually arises for lack of subject matter
      jurisdiction or jurisdiction over the parties. It may also arise if the
      court’s action involves a plain usurpation of power or if the court has
      acted in a manner inconsistent with due process of law. In the
      interest of finality, the concept of setting aside a judgment on
      voidness grounds is narrowly restricted.

      Applying these standards to the case before us, we conclude the underlying

judgment is not void. Nothing in the record demonstrates the district court lacked

personal or subject matter jurisdiction, nor is there any indication the district


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court’s action involved a plain usurpation of power or that the court acted in a

manner inconsistent with due process of law. Ultimately, the record demonstrates

only that plaintiffs are dissatisfied with the outcome of the case and believe their

counsel is to blame. Because the Sixth Amendment right to effective assistance

of counsel does not apply in civil cases, an allegation that counsel was

incompetent is no basis for reversing the underlying judgment.     See MacCuish v.

United States , 844 F.2d 733, 735 (10th Cir. 1988).

      The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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