Hogan v. Nobles ( 2000 )

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.
BRIAN HOGAN,
Plaintiff-Appellant,
versus
CITY OF HATTIESBURG;
UNKNOWN NOBLES, Officer,
Defendants-Appellees.
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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
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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that this opinion should not be published and is not precedent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.