Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1986)

MEMORANDUM^** 

We consider an appeal from an order granting summary judgment for defendants. This is the latest in a number of related actions commenced by George Freeman, all growing out of the closing of an entity known as the "Monastery." Freeman characterizes the Monastery as a church and himself as its "chaplain." The defendants, on the other hand, have uniformly characterized the Monastery as a teen age night club.

The controversy commenced when a group of concerned citizens in Washington filed a civil action in state court to abate the operation of the Monastery. In this action, Freeman fully litigated his claim that the First Amendment stood as a bar to the closing of his "church" and that the effort to close the Monastery was the product of an illegal conspiracy to discriminate against him. He lost this action and the Monastery was closed.

Following service of a brief time in jail for a misdemeanor conviction relating to the operation of the Monastery, Freeman commenced his first action in United States District Court against a number of defendants alleging that they conspired to violate his civil rights in closing the Monastery. Freeman was unable to effect proper service on any defendant within 120 days of the filing of the complaint as required by Fed. R. Civ. P. 4(j), and the action was dismissed without prejudice. Freeman appealed the dismissal to this court. That appeal is still pending.

On November 11, 1986, Freeman filed a second complaint against the same defendants, and a few others. The second complaint was virtually identical to the first, with the exception of certain allegations relating to the new defendants. This time he was able to serve at least some of the defendants. They moved for dismissal. That motion was granted and the action dismissed with prejudice on the basis that the suit was barred by res judicata and collateral estoppel. Freeman now appeals that dismissal.

Freeman also filed at least two petitions for writs of habeas corpus and one habeas corpus petition directly with this court. All were denied. No appeal has been taken from these denials. Freeman asserts in the current appeal that it was error to deny his petitions for habeas corpus. Because the denial of the writs is collateral to this appeal, we will not deal in this appeal with such issues.

Also, we are confronted in the current appeal with a motion by Freeman, filed while this appeal was pending, requesting that the case be remanded back to the district court to permit him to amend his complaint. His motion comes much too late and we accordingly deny it.

The present action was dismissed based upon res judicata and collateral estoppel grounds. We review the dismissal on such grounds de novo. See C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 1987).

The present action is substantially identical to Freeman v. Hittle, C 81-263 TR, previously litigated in federal court. Accordingly, we conclude that defendant Fitzsimons and the City of Seattle are entitled to dismissal on res judicata grounds, see Lemos, 832 F.2d at 1100, and that Charles Royer, the Mayor of Seattle, was properly dismissed on collateral estoppel grounds, see Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988).

Freeman raises numerous other claims of error. We believe that none has merit. Specifically, we reject his 42 U.S.C. § 1985 and 1986 claims because they are based upon alleged interference with a state witness. See Rutledge v. Arizona Bd. of Regents, 859 F.2d 732, 735 (9th Cir. 1988); Trerice v. Pederson, 769 F.2d 1398, 1403 (9th Cir. 1985) (no section 1986 claim absent a valid section 1985 claim). We likewise reject his defamation claim. See Gobel v. Maricopa County, 867 F.2d 1201, 1205 (9th Cir. 1989) (defamation alone not sufficient to state section 1983 claim). And finally, the complaint against Governor Gardner and State Assistant Attorney General Ferguson was properly dismissed. The Governor has absolute immunity for extraditing Freeman from California to Washington, Butz v. Economou, 438 U.S. 478, 508, 511-17 (1978), as does Ferguson for representing the State, Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984), cert. denied, 469 U.S. 1127 (1985).

The public defendants have requested attorneys fees and double costs for resisting what they characterize as a meritless appeal. We agree with their characterization. Under our authority found in Fed. R. App. P. 38, we assess defendant Freeman the sum of $4,000 to be paid in installments of $1,000 each to the King County prosecutor; the Washington Attorney General; Stafford, Frey & Mertel, counsel for the City of Seattle; and Culp, Gutterson & Grader, counsel for various private defendants. In addition, the plaintiff is ordered to pay double costs to the defendants.

The judgment is AFFIRMED.