Unpublished Disposition, 898 F.2d 156 (9th Cir. 1988)

MEMORANDUM^** 

SUMMARY

Appellant appeals, pro se, the grant of summary judgment dismissing his consolidated 42 U.S.C. § 1983 civil rights actions. In each of his actions, Appellant alleged that various individuals violated his fourth amendment right to be free from unlawful search and seizure. We agree with the district court that Appellant is barred by collateral estoppel from asserting ownership of the land in question, and we affirm.

FACTS

In 1985 and 1986, W.B. McConnell, a deputy sheriff of Josephine County, entered upon the land in question to conduct an investigation regarding reports that Appellant had wrongfully removed timber belonging to Champion International Corporation. On the basis of this investigation, a theft of timber charge was filed against Mr. Massey. While the criminal charge of theft was pending, Appellant filed these four suits alleging that the land belonged to him, and that various defendants had entered the land illegally and searched and seized property in violation of 42 U.S.C. § 1983. On January 12, 1988, Appellant was found guilty in state court of theft with the court necessarily finding that the land in question was owned by Champion Corporation and not by the Appellant. After Appellant was convicted, the defendants in these actions filed motions for summary judgment contending that the state court finding of ownership of the land of Champion collaterally estopped plaintiff from asserting in these federal actions that the land was owned by him. The district court agreed, and Appellant's actions were dismissed.

STANDARD OF REVIEW

Questions regarding the defense of res judicata or collateral estoppel are subject to de novo review on appeal, while the application of the doctrine, if available, is reviewed under an abuse of discretion standard. Turf Paradise, Inc. v. Arizona Downs, 670 F.2d 813, 819 (9th Cir.) cert. denied, 456 U.S. 1011 (1982).

ANALYSIS

Before Appellant could have prevailed on his section 1983 action, he must have proved that he was the owner of the land in question during the relevant period; otherwise, he lacks standing to contest the various defendants' entry upon the land.

Appellant urges that the state criminal proceeding against him--which was relied upon by the district court in its finding--was dismissed in an order dated January 12, 1988. We begin by noting that the copy of this order introduced into the Excerpts of Record by appellant is not an accurate copy of what exists in state court record.¹  We also note that it appears that appellant has successfully used this ruse before to convince this court that the same criminal conviction in issue was dismissed by the state court.²  We view appellant's legerdermain before this court, misleading us as to the state court record and submitting selective documents to deceive the court, as a fraud upon the court. Accordingly, we believe at the very least this warrants sanctions.

The issue of ownership has already been decided against Appellant in the state criminal proceeding. Oregon law prevents a party from litigating the same issues in a civil proceeding that have necessarily been decided in a previous criminal proceeding. State Farm & Cas. v. Reuter, 299 Or. 155, 157, 70 P.2d 236 (1985). Since Oregon state courts would apply collateral estoppel to bar Appellant from raising these claims, this court must likewise apply the doctrine. Allen v. McCurry, 449 U.S. 90, 96-97 (1980).

We agree with the district court that the issue of ownership of the land in question was necessarily decided against Appellant in the state criminal proceeding. Appellant has alleged no facts that show he did not have an opportunity to fully and fairly litigate this issue at that time. We find the district court's application of the doctrine appropriate. We find this appeal frivolous pursuant to Fed. R. App. P. 38 and award sanctions in the amount of $2500.00. The decision of the district court is

AFFIRMED.