Steve MULLEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 508 F. App'x 667

MEMORANDUM 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 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, 118 S.Ct. 1862,141 L.Ed.2d 32 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.