Unpublished Disposition, 909 F.2d 1488 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 909 F.2d 1488 (9th Cir. 1989)

Alvin HEGGE, Plaintiff-Appellant,v.Alen ALEF, Karl Shultz, et al., Defendants-Appellees.Alvin HEGGE, Plaintiff-Appellant,v.Karl SHULTZ, Felix Ramone, Defendants-Appellees.

Nos. 88-4239, 89-35346.

United States Court of Appeals, Ninth Circuit.

Submitted July 12, 1990.* Decided July 30, 1990.As Amended Aug. 2, 1990.

Before HUG, NELSON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

These are related matters involving plaintiff-appellant Alvin Hegge's civil rights claims against various federal and state officials in their individual and official capacities, arising out of a search of Hegge's residence on October 24, 1984 conducted pursuant to a search warrant issued by a federal magistrate.

In both actions the district court granted defendants' motions for summary judgment and dismissed the complaints with prejudice, ruling that in the Alef action the doctrine of issue preclusion barred Hegge's claims, which had been previously litigated in his federal criminal proceedings, and that in the Shultz action qualified immunity shielded the defendants. On August 5, 1988 Hegge filed the identical "Motion to Vacate Judgment" in both actions. The district court denied the motion in both actions, ruling that in the Alef action the motion alleged similar arguments as those raised in Hegge's previously denied motion for reconsideration, and that in the Shultz action the motion discussed only issues raised in the Alef action and thus had no relevance to the Shultz action.

Hegge filed in both actions a notice of appeal from the final judgment and order denying his motion to vacate. This Court has previously ruled that both notices of appeal were timely only with respect to the appeal of the orders denying his August 5, 1988 motions to vacate. See Order dated Oct. 18, 1989, Hegge v. Alef, No. 88-4239; Order dated Sept. 12, 1989, Hegge v. Shultz, No. 89-35346. Therefore, the only issue on appeal in each action is whether the district court's order of September 15, 1988, in the Alef action and its order of October 14, 1988 in the Shultz action properly denied Hegge's August 5, 1988 motions to vacate, which may be set aside only if the court's denial constitutes an abuse of discretion. See Bruce v. United States, 759 F.2d 755, 759 (9th Cir. 1985).

Rule 60(b) provides in part:

On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ... misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b).

Legal error does not by itself warrant application of Rule 60(b). Plotkin v. Pacific, Telephone and Telegraph Co., 688 F.2d 1291, 1293 (9th Cir. 1982).

Hegge's August 5, 1988 motion to vacate does not contain any reference to mistake, inadvertence, surprise, or excusable neglect, nor does it discuss any newly discovered evidence, fraud, or other misconduct of an adverse party. Instead, it merely attacks the court's allegedly "erroneous view of the law on issue preclusion" and its allegedly misguided reliance on Allen v. McCurry, 449 U.S. 90 (1980), legal arguments previously raised by Hegge in his motions for reconsideration in the Alef action. These arguments are without merit, as are appellant's claims that his access to the courts was unlawfully impeded and that District Judge Quackenbush was prejudiced against him. Because Hegge's motion to vacate fails to set forth a basis upon which relief may be granted under Rule 60(b), the district court did not abuse its discretion in denying the motion in both the Alef and Shultz actions.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3