Ronald Lee Madsen, Plaintiff-appellant, v. George Herman, Defendant-appellee, 961 F.2d 216 (9th Cir. 1992)

MEMORANDUM^** 

Ronald Lee Madsen, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal before service of process of his 42 U.S.C. § 1983 action against the defendants. We construe the district court's dismissal prior to issuance and service of process as a dismissal under 28 U.S.C. § 1915(d), and we review de novo. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). We affirm.

The district court may dismiss an action under 1915(d) only if it is frivolous. Neitzke v. Williams, 490 U.S. 319, 324 (1989). A frivolous claim is one which lacks an arguable basis in either law or fact. Id.

Under Arizona law, "a judgment 'on the merits' in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action." Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573, 716 P.2d 28, 30 (1986). " [A] dismissal ... other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits" unless otherwise specified in the court order. Fed. R. Civ. P. 41(b).

Madsen contends that prison officials negligently lost his television and other property when he was transferred from one unit to another in the Arizona State prison. The due process clause is not implicated by claims of official negligence. See Daniels v. Williams, 474 U.S. 327, 330-32 (1986). Therefore, the district court correctly found that Madsen did not state an arguable claim. See id.

Moreover, Madsen filed a prior action in the district court based on the same facts which was dismissed for failure to state a claim on March 20, 1989. Because the prior action was a dismissal on the merits, involves the same party, and involves the same cause of action, this action is barred by res judicata. See Chaney, 148 Ariz. at 573, 716 P.2d at 30 (1986).¹ 

AFFIRMED.