Unpublished Disposition, 874 F.2d 815 (9th Cir. 1988)

MEMORANDUM^*

Francis J. Brown appeals in propria persona from a grant of summary judgment in favor of the City of Phoenix (the City). Brown claims that the City deprived him of a profit a prendre without just compensation and seeks several million dollars in damages under 42 U.S.C. § 1983 (1982). The district court ruled that res judicata barred the action because Brown already has litigated his claim against the City in an eminent domain proceeding in the Arizona courts. The City, which moved for sanctions against Brown, cross-appeals from their denial. We affirm the district court's rulings.

FACTS AND PROCEEDINGS BELOW

In 1974, South Bank Corporation (South Bank) was mining sand and gravel on property owned by David M. Paton and Rose E. Paton (the Patons). On May 21, 1974, the City dumped hundreds of tons of demolition debris on the access road to the mining operation, completely landlocking the Patons' property and preventing South Bank from removing and selling its products. The City filed an eminent domain action in the Maricopa County superior court seeking to condemn the Patons' property on the same day. The City added South Bank to the suit on September 25, 1974.

In 1976, the superior court determined that South Bank did not have a compensable interest in the condemned property. In 1982, however, the Arizona Court of Appeals conditionaly reversed this decision and, after describing South Bank's interest as a profit a prendre, instructed the superior court to allow South Bank to prove the fair market value of its interest. See City of Phoenix v. South Bank Corp., 133 Ariz. 90, 96, 649 P.2d 293, 299 (App.1982). South Bank, by this time, had dissolved and had transferred its assets to Brown.

At a subsequent hearing in the superior court on March 12, 1984, Brown called himself and three other witnesses to testify about the value of the profit a prendre. These witness were: (1) Mr. Marvin Larson, a licensed professional engineer; (2) Mr. James Krumtum, a contractor and mine operator; and (3) Mr. Larry Haight, a land appraiser. Haight testified that the sand and gravel in the Patons' property had a fair market value of $4 million. Brown testified that his interest had a fair market value of $4.5 million. The City did not call a rebuttal witness.

On May 30, 1984, the superior court, unimpressed by Brown's evidence, ruled that Brown should receive no compensation because he had the burden of proof on the issue of damages and failed to produce any competent evidence. Brown again appealed to the Arizona Court of Appeals. On October 16, 1986, in a lengthy unpublished memorandum decision, the court of appeals affirmed. Although Brown argued on appeal that it was unconstitutional to place the burden of proof on him in a condemnation action, the court of appeals stated:

In Arizona, the burden of proof as to value of the a condemned leasehold is on the lessee.... This is consistent with the general rule in eminent domain actions that the burden of proof as to damages is on the condemnee.... We find no authority, nor has [Brown] advanced any, for departing from this rule when the interest condemned is that of a profit a prendre.

On March 24, 1987, the Supreme Court of Arizona denied review.

Brown did not petition the Supreme Court of the United States for a writ of certiorari. Instead, on May 13, 1987, acting in propria persona, Brown sued the City in the United States district court below. His complaint asked for damages under 42 U.S.C. § 1983 (1982) equal to the value of his profit a prendre plus interest and a declaration that the burden of proof rule used in his state court trial was unconstitutional. The complaint alleged that the City, in conjunction with the state courts, had deprived him of his rights under the Fifth and Fourteenth Amendments by taking his property without paying him just compensation. The City denied liability and asked for sanctions under Fed. R. Civ. P. 11.

On January 12, 1988, the district court granted summary judgment for the City. The district court ruled that it lacked subject matter jurisdiction over the action to the extent that Brown was asking it to review the correctness of a state court decision. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (Marshall, J., concurring in judgment); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 482 (1983); Worldwide Church of God v. McNair, 805 F.2d 888, 892-93 & n. 4 (9th Cir. 1986). But see Miofsky v. Superior Court, 703 F.2d 332, 335 (9th Cir. 1983). The district court asserted that, if Brown wanted such review, he should have petitioned the United States Supreme Court for a writ of certiorari under 28 U.S.C. § 1257 (1982). The court then held that res judicata barred Brown from presenting his claim anew in federal court. The district court's order did not mention sanctions, but denied seven of Brown's pretrial motions.¹  On January 25, 1988, the City again moved for sanctions. On March 25, 1988, the court denied both the City's motion for sanctions and Brown's motions for rehearing. On April 18, 1988, Brown filed a notice of appeal. On April 20, 1988, the City filed a notice of cross-appeal on the issue of sanctions.

JURISDICTION

The district court had jurisdiction to hear Brown's claim, if not to review the state court judgment, under 28 U.S.C. § 1331 (1982). We have jurisdiction over Brown's appeal and the City's cross-appeal under 28 U.S.C. § 1291.² 

STANDARD OF REVIEW

We review de novo an order granting summary judgment. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). In an appeal from the denial of sanctions under Fed. R. Civ. P. 11, we review the legal issues de novo and the factual issues for clear error. See Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir. 1986).

CLAIM PRECLUSION

The district court correctly determined that Brown's unsuccessful state court litigation bars him from pressing his claim against the City in federal court. The Supreme Court has held that, under 28 U.S.C. § 1738 (1982), a state court judgment has the same claim preclusive effects in a subsequent Sec. 1983 action in a federal court that the judgment would have in state court. See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 85 (1984). We, therefore, must give the same preclusive effect to the City's eminent domain judgment that the Arizona courts would give to it if Brown had brought this action in state court.

The Arizona Supreme Court has said: "Under the doctrine of res judicata, claim preclusion, 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 (S. Ct. 1986). The present suit clearly involves the same parties as the state court eminent domain proceedings. Fairly viewed, we hold it also involves the same "cause of action."

Brown's claim, although brought under 42 U.S.C. § 1983, is an inverse condemnation claim. Brown seeks to recover the value of the profit a prendre in this court just as he sought to recover it in state court. He alleges the same constitutional claim that he asserted in the state court. If the City first had brought its condemnation action against Brown, who made the constitutional claim he makes here, and then Brown had brought an inverse condemnation action against the City repeating the same constitutional claim, res judicata surely would bar the second action. Cf. Department of Transp. v. Samuels, 185 Ga.App. 871, 366 S.E.2d 181, 182 (1988) (holding that a government condemnation action barred a subsequent inverse condemnation action).

Brown's claim does not change merely because Brown has chosen a federal forum made available by Sec. 1983. As we have explained:

It is now established that where the federal constitutional claim is based on the same asserted wrong as was the subject of a state action, and where the parties are the same, res judicata will bar the federal constitutional claim whether it was asserted in state court or not, for the reason that the state judgment on the merits serves not only to bar every claim that was raised in state court but also to preclude the assertion of every legal theory or ground for recovery that might have been raised in support of the granting of the desired relief.

Scoggin v. Schrunk, 522 F.2d 436, 437 (9th Cir. 1975) (res judicata barred a Sec. 1983 action against a city that sold the plaintiff's property to collect an assessment because the state courts already had denied the plaintiff's claim for possession and damages), cert. denied, 423 U.S. 1066 (1976).

We recognize, in reaching this conclusion, that the Arizona courts did not resolve the issues involved in this case to Brown's satisfaction. Brown, in particular, thinks that the Arizona courts should have struck down the state's burden of proof rule as unconstitutional and should have compensated him for his loss. By failing to seek review by the Supreme Court of the United States, Brown permitted the litigation in which he first made his constitutional claim to come to an end. He cannot revive it by initiating an action in a federal district court pursuant to Sec. 1983. Brown's desire to do so must yield to the important policies embodied in 28 U.S.C. § 1738. Neither the state courts nor the federal courts could function properly without the doctrine of claim preclusion. " [R]es judicata and collateral estoppel not only reduce unnecessary litigation and foster reliance on adjudication, but also promote the comity between state and federal courts that has been recognized as a bulwark of the federal system." Allen v. McCurry, 449 U.S. 90, 95-96 (1980).

OTHER ISSUES

We affirm the district court's decision to deny Brown's seven pretrial motions. Although Brown's brief leaves quite unclear what he finds specifically erroneous in the court's decision, he filed most of the motions because he believed that res judicata could not serve the City as a defense. The preceding discussion shows that he was wrong. Brown has not shown that the motions otherwise dealt with topics that could have changed the outcome of this case.

We also affirm the district court's decision not to impose sanctions on Brown. The City asserts that this case resembles Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 652 (9th Cir. 1988), which upheld an award of sanctions against a party who filed multiple improper actions on the same basis in the state and federal courts. The City also notes that even a pro se plaintiff must abide by the rules of the court in which he litigates. See United States v. Merrill, 746 F.2d 458, 465 (9th Cir. 1984), cert. denied, 469 U.S. 1165 (1985). Although Brown's litigation tactics are no model for others, pro se or otherwise, we believe they remain within unsanctionable bounds.

AFFIRMED.