Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1988)

MEMORANDUM^** 

John L. Penter appeals pro se the district court's order dismissing what it labeled as his Bivens¹  action against Integrated Micro Electronics, Inc., GTE California, Inc., the All-American Pipeline Company, and the Immigration and Naturalization Service ("INS"). We affirm.

DISCUSSION

The district court properly dismissed Penter's action against the INS on the ground of res judicata. Res judicata prevents a party from relitigating a claim which has already been adjudicated in a prior action. Gilbert v. Ben-Asher, 900 F.2d 1407, 1410 (9th Cir.), cert. denied, 111 S. Ct. 177 (1990). Penter's cause of action against the INS alleges that the agency violated his constitutional rights to marry Mary Rose Diaz by denying her a visa. Penter attempts to relitigate the issue of the INS's denial of a visa to Mary Rose Diaz, which was resolved in Penter v. INS, No. CV 88-064 EDP (E.D. Cal. Dec. 12, 1988). In that case, the district court determined that the INS had not erred in denying Mary Rose Diaz a visa and that the INS had not violated Penter's constitutional rights to marry. See id. Penter did not appeal from this ruling, and the time for appeal has expired. Therefore, the district court properly dismissed Penter's instant action against the INS on the ground of res judicata.

The district court also properly dismissed Penter's action against the other named defendants for lack of subject matter jurisdiction; namely, that these defendants did not act under color of federal law.²  As the district court noted, liberally construed, the only basis for federal jurisdiction over Penter's complaint is Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which provides a remedy for violation of constitutional rights by persons acting under color of federal law. In the absence of the INS as a party to this suit, no remaining defendant acted under color of federal law in committing the alleged violations of Penter's constitutional rights. Since there is no allegation that the remaining defendants acted under color of federal law, the district court lacked subject matter jurisdiction to hear his claims. See Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982).

Accordingly, we hold that the district court did not err by dismissing Penter's action.

Penter also contends the district court erred by not defaulting all the defendants on the basis of Integrated Micro Electronics' failure to answer his complaint. Penter argues that because a conspiracy is alleged, and one defendant has been served but not answered, all defendants must be brought into default.

We reject this claim. The district court properly declined to enter a default judgment against Integrated Micro Electronics because the district court lacked subject matter jurisdiction over this defendant. See Gregorian v. Izvestia, 871 F.2d 1515, 1522 (9th Cir.), cert. denied, 110 S. Ct. 237 (1989). On this basis, the district court also properly declined to enter default judgments against the other defendants.

We deem Penter's appeal to be frivolous pursuant to Fed. R. App. P. 38 in that the result is obvious and the arguments of error advanced are wholly without merit. Lopez v. Dean Witter Reynolds, Inc., 805 F.2d 880, 885 (9th Cir. 1986). We therefore award attorney's fees and double costs to the appellees.

We also take judicial notice of the fact that Penter has filed numerous similar lawsuits in the federal courts that essentially allege the same common nucleus of operative fact. We have previously enjoined Penter from relitigating certain forms of these claims. Penter v. Associated Technical College, Nos. 85-6487, 86-5552, 86-5688, slip op. at 5 (9th Cir. March 12, 1987). However, as the instant action attests, Penter has continued to file frivolous claims in the federal courts. In such situations, we have held that it is appropriate to impose the following requirement:

Petitioner may not file any civil action without leave of court. In seeking leave of court, petitioner must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon failure to certify or upon a false certification, petitioner may be found in contempt of court and punished accordingly.

Franklin v. Murphy, 745 F.2d 1221, 1232 (1984) (quoting In re Green, 669 F.2d 779, 787 (D.C. Cir. 1981). We hereby impose this requirement upon Penter. Penter may not file any civil action in federal court without leave of that court. In seeking leave of court, Penter must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon failure to certify or upon a false certification, Penter may be found in contempt of court and punished accordingly.