                                                                           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                            NOT FOR PUBLICATION                             FEB 14 2013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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