Unpublished Disposition, 861 F.2d 268 (9th Cir. 1987)

MEMORANDUM^** 

Kenneth and Judy Morris (the Morrises), pro se, appeal the dismissal of their Sec. 1983 action as frivolous under 28 U.S.C. § 1915(d). The Morrises contend the district court erred by dismissing the action because (1) the complaint was not frivolous, (2) the court did not grant the Morrises leave to amend the complaint, and (3) Judy Morris's state court conviction was improper. We affirm.

FACTS

On October 8, 1984, Kenneth and Judy Morris's chicken coop caught fire after Judy emptied a can of almond shells into her incinerator. A neighbor summoned the fire department, but the fire had already been doused when the firefighters arrived. While viewing the premises, the firefighters observed that the Morrises' incinerator was illegal in various regards. They filed a report of their observations with the Tehama County District Attorney's Office and a warrant was issued for Judy's arrest.

On June 13, 1986, the Morrises filed a complaint against the State of California and various state and county authorities alleging twelve causes of action under 42 U.S.C. § 1983. On September 5, 1986, on motion of the defendants, the district court held that the action was barred by res judicata. It found that the complaint alleged claims substantially identical to those that had been dismissed previously in a state court proceeding. Accordingly, it granted the defendant's motion to dismiss.¹  The Morrises timely appealed. On October 19, 1987, the Morrises' appeal was dismissed for failure to prosecute.

On November 21, 1986, the Morrises filed a complaint against the United States of America, the State of California, and various federal, state, and county authorities in the district court alleging twelve causes of action virtually identical to those alleged in their June 13, 1986 complaint. The only change was the addition of federal defendants and a request for relief against the federal defendants. On December 18, 1986, the district court granted the Morrises' request to proceed in forma pauperis under 28 U.S.C. § 1915(a), but dismissed the action as frivolous under 28 U.S.C. § 1915(d). The Morrises timely appeal.

ANALYSIS

The Morrises contend the district court erred by dismissing the action because (1) the complaint was not frivolous, (2) the court did not grant the Morrises leave to amend and (3) Judy Morris's state court conviction was improper. These contentions lack merit.

This court reviews de novo the dismissal of an action as frivolous under 28 U.S.C. § 1915(d). Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). A district court may dismiss with prejudice an in forma pauperis complaint before service of process when the complaint is frivolous. 28 U.S.C. § 1915(d); Noll, 809 F.2d at 1446, 1448. A frivolous action is one "lacking arguable basis in law or in fact." Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987). A district court may rely on its records and files to determine whether a claim is frivolous. Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). However, leave to amend must be granted, unless it is absolutely clear the complaint's deficiencies could not be cured by amendment. Noll, 809 F.2d at 1446, 1448.

Here, the district court held that the fact that the Morrises' November 21, 1986 complaint alleged claims duplicative of its earlier complaint filed in federal court, which complaint was part of the record before it, rendered it frivolous. Res judicata prohibits the presentation of any cause of action that was or could have been asserted in a prior suit between the same parties or their privies. C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 1987). Whether successive lawsuits involve the same cause of action is determined by examining four criteria: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right, and (4) whether the two suits arise out of the same transactional nucleus of facts. Id. The final criterion is the most important. Id.

The Morrises' November 21, 1986 complaint was virtually identical to a complaint they had filed in the same court five months earlier. The Morrises are barred by res judicata from relitigating any cause of action arising from the chain of events set forth in their June 13, 1986 complaint. See Anderson, 832 F.2d at 1100. The earlier action had been fully adjudicated on the merits and dismissed by the same judge. See Dash, Inc. v. Alcoholic Beverage Control Appeals Board, 683 F.2d 1229, 1232 (9th Cir. 1982) ("for res judicata purposes, a judgment 'on the merits' has been liberally construed"); cf. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 399 (1980) (dismissal for failure to state a claim is a "judgment on the merits"). Therefore, the court did not err by invoking the principle of res judicata against the Morrises and dismissing their complaint as frivolous. See Anderson, 832 F.2d at 1100. Furthermore, because an amendment could not cure the deficiency, the district court did not err by dismissing the Morrises' complaint without leave to amend. See Noll, 809 F.2d at 1448. Finally, this court is without jurisdiction to review the state court conviction. See Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986).²