                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 26 2001
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 DANIEL CANALES, Administrator of
 the estate of Rito Canales, ERNEST
 CANALES; FRANK CORDOVA, as
 Administrator of the estate of Antonio
 Cordova,                                               No. 00-2164
                                             (D. Ct. No. CIV-99-1259-JC/RLP)
               Plaintiffs - Appellants,                 (D. N. Mex.)

          v.

 WAYNE LARSEN; R. POLO; B.
 SALAZAR; L. URIOSTE; T.
 DRENNAN; R. McNUTT; A.
 BRIGGS; SANTOS BACA; TRUMAN
 WOODS; CITY OF ALBUQUERQUE;
 COUNTY OF BERNALILLO; STATE
 OF NEW MEXICO,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, LUCERO, Circuit Judge, and BROWN, District
Judge. †




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.

      The Honorable Wesley E. Brown, Senior District Judge for the District of
      †

Kansas, sitting by designation.
      The administrators of the estates of Rito Canales and Antonio Cordova

appeal the district court’s denial of relief from judgment and its dismissal

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



                                  I. Background

      In 1972, Rito Canales and Antonio Cordova were killed by police while

attempting to steal dynamite from a construction site near Albuquerque, New

Mexico.

      The mother of Antonio Cordova sued the defendants in state court. Tim

Chapa’s deposition was taken, but he denied being a police informer or having

any knowledge of a conspiracy or of what happened at the construction site. The

defendants filed a motion for summary judgment. In sworn affidavits in support

of this motion, the individual defendants stated that the police officers had

responded to a tip from an anonymous source who informed them of the planned

dynamite robbery, that they observed Canales and Cordova attempting to steal

dynamite at the construction site, that police officers attempted to apprehend the

two men, and that Canales and Cordova were killed after firing at the police

officers. The City of Albuquerque also indicated in its response to interrogatories

that police had responded to an anonymous tip. The defendants further denied


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having familiarity with Tim Chapa. The trial court granted the defendants’

motion for summary judgment. The New Mexico Court of Appeals affirmed.

Cordova v. City of Albuquerque, 526 P.2d 1290 (N.M. Ct. App. 1974).

      Daniel Canales, Rito Canales’ brother, sued the defendants in federal

district court, alleging a conspiracy to kill Rito Canales. The defendants denied

the existence of any conspiracy, denied the participation of Tim Chapa, and

provided essentially the same testimony as contained in their affidavits filed in

state court. The jury returned a verdict for the defendants.

      In 1996, Tim Chapa changed his story. He gave a videotaped statement

detailing the existence of a conspiracy, his involvement, and the involvement of

the defendants. He claims that police officers asked him to infiltrate an

organization called the Black Berets, an activist Chicano rights organization to

which Canales and Cordova belonged. After infiltrating this group, he claims that

he worked with police to devise a plan whereby members of the Black Berets

would be killed while attempting to steal dynamite. He claims that he

accompanied Canales and Cordova on their fatal attempt to steal dynamite, that

police were waiting at the construction site with the intent of killing Canales and

Cordova, and that only Cordova was armed. He further claims that the day after

Canales and Cordova were killed, police officers threatened to kill him if he ever

spoke about what really happened.


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         Plaintiffs filed a complaint in district court on November 1, 1999, alleging

fraud on the court and seeking relief from the judgments in both cases. The

district court granted the defendants’ motion for dismissal, finding that the

plaintiffs had failed to allege facts sufficient to support a claim of fraud on the

court.



                                     II. Discussion

         We review de novo the district court’s dismissal pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Sutton v. Utah State Sch. for the Deaf

and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We must take as true and view

in the light most favorable to appellants all factual allegations contained in

appellants’ complaint. Id.

         We review a district court’s decision to deny relief from judgment on the

basis of fraud on the court for abuse of discretion. Robinson v. Audi

Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995). We also review a

district court’s decision to deny relief from judgment on the basis of an

independent action for abuse of discretion. Zimmerman v. First Fed. Sav. & Loan

Assoc., 848 F.2d 1047, 1053 (10th Cir. 1988). For substantially the same reasons

given by the district court, we agree that the plaintiffs failed to allege facts

sufficient to support either a claim of fraud on the court or an independent action.


                                           -4-
Therefore, we find no abuse of discretion in the district court’s denial of relief

from the two prior judgments. And, consequently, we find that the district court’s

dismissal of the plaintiffs’ claim was appropriate. Accordingly, the district

court’s order of dismissal is AFFIRMED.

                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Chief Judge




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