Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1989)

MEMORANDUM^* 

Carl Eugene Jones ("Jones") appeals pro se from the district court's dismissal with prejudice of Jones' 42 U.S.C. § 1983 action charging various government officials with perjury and illegal searches. Jones also challenges the court's injunction against filing any further complaints in federal court without leave. We affirm.

On August 21, 1985, Jones was convicted of conspiring to manufacture methamphetamine, attempting to manufacture said drugs, using a telephone to further a conspiracy, and possessing firearms unlawfully. This Circuit affirmed his sentence to a six year prison term. Since that time, Jones has proceeded to file fourteen lawsuits against various governmental personnel and agencies within a nine month period. All of the suits brought by Jones attacked various aspects of his criminal conviction.

In the case at bar, Jones attacks the constitutionality of his conviction. Jones alleges that government officials and witnesses conspired to commit perjury on the stand and were involved in the illegal removal of his personal and private property at the time of his arrest. Defendants named in this suit are the Mendocino County Narcotics Task Force, the Fort Bragg Police Department, the Drug Enforcement Administration ("DEA"), and other state and federal officers who participated in the surveillance, raid, and criminal trial which placed Jones in prison for six years. Three more defendants were named in the suit: Christina Harju Jones, a government witness; Rose Clark, a government witness; and Tom Wilcox, a special agent of the DEA. Despite the three additional defendants, the issues raised in this suit are identical to those presented in Jones v. Mendocino County Narcotics Task Force, et al., No. C-87-0146-AJZ (N.D. Cal. 1987).

In that case Judge Alfonso Zirpoli, presiding judge over twelve of the fourteen suits, dismissed Jones' complaint with prejudice for failure to allege sufficient facts to state a claim under 42 U.S.C. § 1983. On January 14, 1987, the court had given Jones leave to cure the deficiency, but the amended complaint failed to do so. Subsequently, since the complaint in the case at bar also failed to cure the factual deficiencies which proved fatal in the earlier action, Judge Zirpoli dismissed the present action on the basis of res judicata.

On January 14, 1987, prior to the filing of the present suit, Judge Zirpoli issued an order sua sponte prohibiting Jones from filing further suits in federal court without prior court review. Jones circumvented this prefiling order by filing this action in state court on April 13, 1987. The government then removed this case to federal court on December 2, 1987.

"We review de novo a district court's ruling on the availability of res judicata both as to claim preclusion and as to issue preclusion." Guild Wineries and Distilleries v. Whitehall Co., 853 F.2d 755, 758 (9th Cir. 1988) (footnote omitted) (quoting Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988)).

Res judicata "treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same 'claim' or 'cause of action.' " McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986) (footnote omitted) (quoting South Delta Water Agency v. United States, Dep't of Interior, Bureau of Reclamation, 767 F.2d 531, 538 (9th Cir. 1985)). Jones alleges that government officials and witnesses conspired to commit perjury and were involved in the illegal removal of his personal and private property. With the exception of Christina Harju Jones, Rose Clark and Tom Wilcox, the defendants and the issues are identical to those presented in case No. C-87-0146-AJZ. Since those issues were raised and dismissed in that case, Jones was properly estopped from bringing this action.

The basic premise of preclusion is that parties to a prior action are bound and nonparties are not bound. See United States v. 177.51 Acres of Land, 716 F.2d 78, 81 (1st Cir. 1983) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure p 4449 (1981)). Although nonparties to the prior action, Christina Harju Jones and Rose Clark are government witnesses. As witnesses, they are absolutely immune from suits for damages under 42 U.S.C. § 1983. See Briscoe v. LaHue, 460 U.S. 325, 345-46, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983), cited in Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). Proceeding against Tom Wilcox, a DEA agent, is also precluded because he is in privity with parties to the prior suit. See United States v. Truckee-Carson Irrigation Dist., 649 F.2d 1286, 1303 (9th Cir. 1981), amended, 666 F.2d 351 (9th Cir. 1982), aff'd in part and rev'd in part sub nom. Nevada v. United States, 463 U.S. 110, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983).

Jones also contends that the district court erroneously relied on res judicata in its dismissal of this action because the March 31, 1987 judgment in the prior action, on the basis of which the court invoked res judicata, was not a judgment on the merits. This contention is meritless.

A final judgment on the merits bars a subsequent action over the same cause of action. Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985). The dismissal of a complaint for failure to allege necessary facts is a dismissal on the merits for purposes of res judicata. Hayes v. New England Millwork Distrib., Inc., 485 F. Supp. 459, 461 (D. Mass. 1980). This rule does not bar a later proceeding on the same cause of action, however, where the necessary facts are alleged. See Cullen v. New York State Civil Serv. Comm'n, 435 F. Supp. 546, 553-54 (E.D.N.Y. 1977), appeal dismissed, 566 F.2d 846 (2d Cir. 1977).

On March 31, 1987, the district court dismissed with prejudice Jones' complaint in No. C-87-0146-AJZ for failure to allege sufficient facts to state a claim under 42 U.S.C. § 1983. In dismissing Jones' complaint in this action, the court found that the claims were identical to those presented in No. C-87-0146-AJZ. Consequently, the court found that the instant complaint also failed to cure the factual deficiencies which proved fatal to the complaint in the earlier action.

We review the district court's grant of permanent injunctive relief for an abuse of discretion or application of erroneous legal principles. Guadamuz v. Bowen, 859 F.2d 762, 766 (9th Cir. 1988); Tollis, Inc. v. San Bernradino County, 827 F.2d 1329, 1331 (9th Cir. 1987).

"A United States District Court hearing a particular case possesses the power to enjoin the filing of related lawsuits in other federal courts." Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 (9th Cir. 1983), cert. denied, 465 U.S. 1081 (1984). "Such orders are generally unnecessary, as res judicata and collateral estoppel are usually more than adequate to protect defendants against repetitious litigation." Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980). Nevertheless, under the All Writs Act, 28 U.S.C. § 1651(a), district courts have the power to reinforce the effects of these doctrines by issuing an injunction against repetitious litigation. Wood, 705 F.2d at 1524.

Although litigiousness alone is no reason to enjoin future litigation, Ruderer v. United States, 462 F.2d 897, 899 (8th Cir.), cert. denied, 409 U.S. 1031 (1972), "frivolous claims by a litigious plaintiff may be extremely costly to defendants and can waste valuable court time." De Nardo v. Murphy, 781 F.2d 1345, 1348 (9th Cir.), cert. denied, 476 U.S. 1111 (1986).

The general pattern of litigation in this case has been vexatious enough to warrant an injunction in anticipation of future attempts to relitigate old claims. See Wood, 705 F.2d at 1524. Over a period of nine months Jones filed fourteen lawsuits against various governmental officers and agencies. Ten suits were dismissed with prejudice. Some were dismissed on the basis of res judicata while others were dismissed because the claims were frivolous. On June 15, 1989, Jones filed a fifteenth action reiterating similar claims. The district court did not abuse its discretion by enjoining future litigation in this case since Jones has forced these parties to defend themselves a number of times on the same claims.

Because Jones is a pro se litigant, however, we must address whether the injunction would abridge Jones' constitutionally protected right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977).

This constitutional right "requires that a person's access to the courts be 'adequate, effective, and meaningful.' ... The touchstone is not total or unlimited access, but meaningful access." Green v. Warden, United States Penitentiary, 699 F.2d 364, 369-70 (7th Cir.), cert. denied, 461 U.S. 960 (1983) (quoting Bounds, 430 U.S. at 822-23).

This injunction does not deny Jones meaningful access to the courts. The requirement that Jones certify to the novelty of his claims can hardly be burdensome and is necessary in light of Jones' pleadings and other papers that have deluged the district court. The injunction "does not preclude or even unduly burden [Jones] from submitting a new and nonfrivolous complaint; it merely requires that all of his future claims be original, an idea not at all inconsistent with traditional notions of res judicata." Green, 699 F.2d at 370 (footnote omitted).

AFFIRMED.