Unpublished Disposition, 930 F.2d 920 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 920 (9th Cir. 1991)

Jullian SWIG, Plaintiff-Appellant,v.DEPARTMENT OF MOTOR VEHICLES, Defendant-Appellee.

No. 89-15739.

United States Court of Appeals, Ninth Circuit.

Submitted March 11, 1991.* Decided April 15, 1991.

Before D.W. NELSON, KOZINSKI and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

If nothing else, Jullian Swig is a persistent man. Since 1986, he has brought no fewer than six actions against the Department of Motor Vehicles, each time alleging virtually identical claims.1  A virtue in moderation, perserverance rapidly becomes a vice in excess. Swig's is of the second type.

Swig's pro se actions, both in state and federal court, challenge various sections of California's Vehicle Code on constitutional grounds. In his latest encounter with the courts, he challenges California's right to require him to register his vehicle and obtain a driver's license before driving on public roads and asserts that California's Vehicle Code unconstitutionally deprives him of due process. Because Judge Peckham had dismissed as frivolous a similar case, Swig v. Governor Deukmejian, he held the instant case to be barred by res judicata. He also found that Swig's petition for peremptory writ of mandate failed to state a claim, was frivolous, vexatious and filed in order to harass appellee. As a result, the court granted appellee's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and imposed sanctions in the form of $200.00 in attorney's fees for violation of Rule 11.

Needless to say, we too find Swig's appeal baseless. We also find it blindly oblivious to well settled principles of res judicata. See Mirin v. State of Nevada, ex rel. Public Service Comm., 547 F.2d 91 (9th Cir. 1976), cert. denied, 432 U.S. 906 (1977). His claims have been adjudicated--indeed, more than once. We can only affirm the district court's order.

We turn next to the issue of additional sanctions. Although we are mindful that appellant appears pro se, " [t]his court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal." Maisano v. United States, 908 F.2d 408, 411 (9th Cir. 1990); see also Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988). Swig's appeal being patently without merit, we clearly are empowered to impose an additional sanction under Rule 38 of the Federal Rules of Appellate Procedure.

However, because Swig has declared himself to be indigent, there is reason to doubt the efficacy of monetary sanctions. Appellee therefore suggests that we enter an order prohibiting Swig from filing further appeals without prior court approval. As the Supreme Court has noted, courts have the authority to implement remedies restricting a litigant's access to courts. See In Re McDonald, 489 U.S. 180, 184 & n. 8 (1989). Indeed, courts must "protect and preserve the sound and orderly administration of justice." In Re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984); see also Lysiak v. Commissioner, 816 F.2d 311, 313 (7th Cir. 1987) (per curiam); In Re Urban, 768 F.2d 1497, 1500 (D.C. Cir. 1985).

Accordingly, and mindful of Swig's uncontested right of access to the courts, see Lysiak, 816 F.2d at 313, we hereby enjoin him from filing any new action or proceeding in any federal court in the Ninth Circuit without first obtaining leave of that court. In order to obtain leave of court, he must file with his complaint a copy of this memorandum. He also must attach a sworn affidavit certifying that the claims he raises are not frivolous and that he has not raised them before. Failure to abide by these procedures may be considered sufficient ground for the court's refusing to accept the complaint for filing.

The judgment of the district court is AFFIRMED.

 *

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

 **

This disposition is not appropriate for publication. It may not be cited to or by the courts of this circuit with two exceptions: citation as provided by Ninth Circuit Rule 36-3 and citation to section II of the memorandum pertaining to the imposition of sanctions

 1

The following sample should suffice: Swig v. Governor Deukmejian et al., Ninth Circuit No. 88-2957, was dismissed as frivolous by the district court and Swig's appeal was dismissed as untimely by this court; Swig v. State of California, Department of Motor Vehicles was brought in Alameda County Superior Court and the court granted the motion for judgment on the pleadings and the motion for nonsuit; Swig v. Wolfe, filed in San Francisco, was also dismissed

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