Unpublished Disposition, 844 F.2d 792 (9th Cir. 1987)

MEMORANDUM^** 

Kenneth Pendleton, a federal prisoner, appeals pro se the district court's dismissal of his civil rights action. We AFFIRM.

FACTS AND PROCEEDINGS BELOW

On June 28, 1982, federal and local law enforcement officials in Edmonds, Washington, arrested Kenneth Pendleton and Helen Eckleman in connection with several robberies. With Pendleton's written consent, officers searched a self-storage locker and seized numerous items of property. Officers impounded Pendleton's truck and seized the contents.

After Pendleton's arrest, warrants were executed in six bank robbery cases in six different jurisdictions. The cases were opened in Seattle and then transferred to their respective districts in August of 1982.

On September 5, 1982 and April 13, 1983, Pendleton and Eckelman were indicted in Idaho. Pendleton pled guilty. After sentencing he was transferred to Oregon for trial on another charge.

In February, 1984, while plea negotiations were being completed in Oregon, Idaho Assistant U.S. Attorney Ron Howen filed a motion and order for forfeiture, return and disposal of property. By letter to Judge McNichols, dated May 1, 1984, Pendleton's attorney expressed Pendleton's position regarding the seized property. Pendleton claimed the forfeiture order was not in accordance with his Oregon plea agreement. Judge McNichols signed an order disposing of the property in question on May 14, 1984. A copy of the order was mailed to Pendleton's attorney.

Thereafter, Pendleton filed a civil suit against Charles Turner, U.S. Attorney for the District of Oregon, and Ron Howen in Oregon district court. Pendleton alleged that he was deprived of property without due process of law with regard to property seized from his truck and locker. The district court dismissed the complaint, adopting the findings and recommendation of Magistrate Juba. The magistrate found that Pendleton was collaterally estopped from arguing that his property was dispersed in violation of the plea agreement because this issue was put in issue and directly determined in the Idaho forfeiture action.

On August 30, 1985, Pendleton made a new motion in Idaho district court opposing the forfeiture on due process grounds. Pendleton raised the issues of lack of subject matter jurisdiction, unreasonable delay, lack of notice, violations of Fed. R. Crim. P. 41(b) and (d), and breach of the plea agreement. The district judge denied the motion, finding that Pendleton received notice, and that collateral estoppel and res judicata barred his claims.

In July, 1986, Pendleton filed this civil rights action in the Western District of Washington. He alleged that defendants (four federal officers and an Idaho bank official) violated various constitutional rights in the seizure and disposition of the property recovered from his truck and locker. Upon recommendation of the magistrate, the district judge dismissed the complaint against Kucera, the bank officer, and found that while the complaint did not state a Sec. 1983 claim, it did state a cognizable Bivens action.

The four remaining defendants filed a motion to dismiss on December 1, 1986, asserting collateral estoppel and the immunity of the defendants. The motion was accompanied by a memorandum, affidavits, and other documents. Pendleton moved for an extension of time to respond which was granted until January 19, 1987. On January 15, 1987, Pendleton moved to compel discovery. The court denied the motion for failure to comply with a local rule. Pendleton did not respond to the motion to dismiss. The magistrate recommended dismissal on February 23, 1987 on grounds of collateral estoppel. Pendleton was given until May 15, 1987 to object and did not do so. The district court entered judgment on June 12, 1987. Pendletom timely appealed.

STANDARD OF REVIEW

We review de novo a dismissal for failure to state a claim. Kelson v. City of Springfield, 767 F.2d 651, 653 (9th Cir. 1985).

ANALYSIS

Pendleton alleges four errors by the district court: 1) dismissing the complaint before Pendleton had an opportunity to complete discovery, 2) dismissing the complaint on collateral estoppel grounds, 3) dismissing the equal protection claim for failure to state a claim, and 4) denying Pendleton's motion for leave to file an amended complaint.

Pendleton was not entitled to complete discovery before the court's ruling on the motion to dismiss. Defendants have the right under Fed. R. Civ. P. 12(b) to challenge the legal sufficiency of the complaint's allegations against them without subjecting themselves to discovery procedures. SEC v. Seaboard Corp., 677 F.2d 1315, 1317 (9th Cir. 1982). Moreover, the discovery Pendleton sought regarding who had handled which piece of property was irrelevant to the collateral estoppel and immunity issues.

Under collateral estoppel doctrine, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation. Montana v. United States, 440 U.S. 147, 153 (1979). Pendleton has litigated the handling of the property seized from his truck and locker previously in Oregon and Idaho. Although Pendleton has sued different defendants and advanced different theories, the issues decided by the federal courts in Oregon and Idaho were the same. These courts determined that Pendleton's property was properly seized and handled. Thus, the district court did not err in dismissing Pendleton's complaint on collateral estoppel grounds.

C. Failure to state a claimThe magistrate concluded that plaintiff had failed to state a cognizable equal protection claim. Pendleton contends that the magistrate erred in failing to accept the allegations of the complaint as true. Alternatively, Pendleton argues that he was entitled to notice and an opportunity to respond because the court converted the defendants' 12(b) motion into a motion for summary judgment.

Assuming Pendleton's allegations are true, i.e. that his property was illegally seized, transferred and forfeited, he cannot state an equal protection claim. The fifth amendment equal protection component prohibits the United States from invidiously discriminating between individuals or groups. Washington v. Davis, 426 U.S. 229, 239 (1976). Pendleton does not allege that he was purposefully treated differently from anyone else in his situation.

The district court denied Pendleton's motion for leave to amend his complaint as untimely filed. Pendleton claims that his delay in amending resulted from his difficulty in obtaining discovery from the defendants.

Even assuming Pendleton's failure to comply with the court's schedule for pretrial proceedings was justifiable, his amended complaint does nothing to change the result in the motion to dismiss. The amended complaint dismisses defendant McCarthy and adds more specific contentions under each cause of action. The action is still barred by collateral estoppel.

CONCLUSION

The district court's dismissal of Pendleton's complaint is AFFIRMED.