Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1987)

MEMORANDUM^** 

Rodger C. Finvold and his daughter Elise R. Finvold (the Finvolds) appeal from the district court's order dismissing their claims for lack of subject matter jurisdiction and failure to state a cognizable deprivation of a federal constitutional right. The Finvolds contend that the district court erred in dismissing their complaint (1) "without justifying facts to support the dismissal" and (2) in denying "leave to amend for technical corrections."

* In 1981, the Finvolds filed a medical malpractice action in the California Superior Court for the County of San Diego against a psychiatrist, Dr. Sambs, alleging that he had installed a phobia of the drug stelazine in Elise Finvold (Finvold I). The state trial court held that the action was barred by the statute of limitations. The California Court of Appeal, Fourth Appellate District, Division One, affirmed the trial court's judgment. The California Supreme Court and the United States Supreme Court denied a hearing.

In 1985, the Finvolds filed another civil action in the California Superior Court for San Diego County, alleging that Dr. Sambs had instilled a "fear of father" in Elise Finvold (Finvold II). The state trial court sustained the demurrer filed by Dr. Sambs, holding that the action was barred by the doctrine of res judicata. The Finvolds appealed the decision. The California Court of Appeal for the Fourth District, Division One (California Court of Appeal) affirmed the trial court's decision.

On February 20, 1987, the Finvolds filed a pro se complaint in the district court naming the State of California and the California Court of Appeal, Fourth Appellate District, Division One as defendants. The Finvolds alleged that the California Court of Appeal had violated their federal constitutional rights by dismissing Finvold I and Finvold II. They sought to have California's laws regarding res judicata and the statute of limitations declared unconstitutional as applied to their psychiatric malpractice actions, and to have Finvold I and Finvold II reinstated.

The district court issued an order dismissing the action for lack of jurisdiction and for failure to state a claim. The Finvolds then made a motion to reconsider which the district court denied on September 29, 1987.

II

The Finvolds contend that the district court has jurisdiction to review the decisions of the California Court of Appeal in Finvold I and Finvold II for violations of their constitutional rights in the application of the doctrine of res judicata and the statute of limitations. Their contention lacks merit.

We review a district court's dismissal of an action for lack of subject matter jurisdiction independently without deference to the district court's conclusion. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). This court construes pro se civil rights pleadings liberally and affords the plaintiff any benefit of the doubt. Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc).

The jurisdiction of district courts is original. Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). Federal district courts may not serve as appellate tribunals to review errors allegedly committed by state courts, Mackay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987), even when the challenge to the state court decision involves federal constitutional questions. Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir. 1986). The district court does, however, have subject matter jurisdiction over complaints that present general challenges to state rules, if such challenges do not require review of a final state court judgment in a particular case. D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983). The district court does not have jurisdiction over those elements of such complaints that are inextricably intertwined with the state court's decision. Id. at 487 (1982). Claims are inextricably intertwined if the district court must scrutinize not only the challenged rule itself, but the state court's application of the rule. Worldwide Church of God, 805 F.2d at 892.

The Finvolds allege that the state court denied their due process right to a jury trial by applying California's primary rights theory of the claim preclusion aspect of res judicata. Under California's primary rights theory, the right sought to be enforced determines the cause of action. 4 Witkin, California Procedure, Pleadings Sec. 23 (1985).

The Finvolds allege that the state court improperly construed Elise's phobia of the drug stelazine and "phobia of the father" as an injury to a single primary right. Although the Finvolds' prayer for relief seeks to have the primary rights theory declared unconstitutional, their 47-page complaint is concerned with the application of the rule to Finvold II. To determine the issues raised in the Finvolds' federal complaint concerning the primary rights theory, the district court would have to go beyond a mere review of that rule to an examination of the California law as applied by the California Court of Appeal. The district court does not have jurisdiction to review California's primary rights theory as applied to Finvold II. Worldwide Church of God, 805 F.2d at 893.

The Finvolds also allege in their complaint that the California Court of Appeal incorrectly applied California's statute of limitations regarding medical malpractice to their action in Finvold I. They allege that the court erred in determining that their action was barred by the statute of limitations.

The district court lacks jurisdiction to review California's statute of limitations as applied by the California Court of Appeal in Finvold I. See Feldman, 460 U.S. at 486. As noted above, the district court does, however, have subject matter jurisdiction to review a general challenge to the California statute of limitations. See Feldman, 460 U.S. at 487.

The Finvolds also allege that they are deprived of their fourth amendment rights but allege no facts to support this claim. Accordingly, we do not reach this claim.

The right to jury trial in civil cases under the seventh amendment is not applicable to the states through the fourteenth amendment. Bute v. Illinois, 333 U.S. 640, 657 n. 13 (1948). An amendment to the complaint to allege that they were denied the right to jury trial under California law would not aid the Finvolds in this action. The Due Process Clause of the fourteenth amendment is not "a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701 (1976). Therefore, the district court properly dismissed the Finvolds' complaint for failure to state a claim.

III

The Finvolds also argue in their reply brief that they should have been allowed to amend their complaint to state a cause of action under 42 U.S.C. § 1983. This contention lacks merit.

The Supreme Court has held that " [a] State's interest in regulating the work load of its courts and determining when a claim is too stale to be adjudicated certainly suffices to give it legislative jurisdiction to control the remedies available in its courts by imposing statutes of limitations" without violating due process. Sun Oil Co. v. Wortman, 108 S. Ct. 2117, 2126 (1988).

The Finvolds' complaint cannot be amended to state a cause of action under section 1983 because the facts do not support a claim that California's statute of limitations had deprived them of rights secured by the federal Constitution or the laws of the United States. Havas v. Thornton, 609 F.2d 372, 374 (9th Cir. 1979). As noted above, this action was brought against the State of California and its judicial officers for applying local law. An action against the state or a state official for violating state law is barred by the eleventh amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 121 (1984). Therefore, the district court properly dismissed the action without providing the Finvolds an opportunity to amend their complaint. See Jones v. Community Redevelopment Agency, 733 F.2d 646, 650 (9th Cir. 1984) (where amendment of complaint would have served no purpose, because acts complained of could not constitute claim for relief, it is not error to dismiss the complaint without leave to amend).

AFFIRMED.