Hogan v. Nobles

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 17, 2000
• Docket: 99-60295
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60295 Conference Calendar

BRIAN HOGAN,

Plaintiff-Appellant,

versus

NOBLES, Etc.; ET AL.,

Defendants,

NOBLES, Officer, Police Officer at Hattiesburg Police Department,

Defendant-Appellee.

CITY OF HATTIESBURG; UNKNOWN NOBLES, Officer,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:96-CV-20-PG USDC No. 2:96-CV-31-PG - - - - - - - - - - October 17, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. No. 99-60295 -2-

Brian Hogan, Mississippi prisoner # 67383, appeals from the

magistrate judge’s denial of his Fed. R. Civ. P. 60(b)(2) motion

and his independent action under Rule 60(b)(3), alleging fraud on

the court. By not briefing the issue, Hogan has abandoned any

challenge to the magistrate judge’s April 13, 1999, order denying

his Rule 60(b)(2) motion. Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). Even if Hogan has preserved the issue, the

magistrate judge did not abuse his discretion because the motion

was untimely. Rule 60(b).

Regarding Hogan’s independent action, Hogan renews his long-

held view that he is entitled to relief because the judgment is

based entirely upon perjured testimony given by the defense

witnesses. Hogan’s allegations of perjured testimony do not

constitute such egregious conduct as to meet the narrow

definition of a “fraud upon the court.” Browning v. Navarro, 826

F.2d 335, 345 n.12 (5th Cir. 1987); see also Johnson Waste

Materials v. Marshall, 611 F.2d 593, 600 (5th Cir. 1980).

Accordingly, the magistrate judge did not abuse its discretion in

denying the motion.

This appeal is without arguable merit and therefore

frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. 5th Cir.

R. 42.2.

APPEAL DISMISSED.

R. 47.5.4.