Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

William G. JACKSON, Plaintiff-Appellant,v.The COUNTY OF LOS ANGELES, STATE of CALIFORNIA, Defendant-Appellee,Frank S. Zolin, Real Party in Interest.

No. 89-55518.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 9, 1990.

Before CANBY, BRUNETTI and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

William G. Jackson appeals pro se the dismissal of his 42 U.S.C. § 1983 complaint. Jackson contends that the district court erred in concluding that it lacked jurisdiction to review of the Los Angeles Superior Court judgment ordering the sale of his real property. We affirm.

FACTS

Jackson's complaint alleged he was the true owner of certain real property in Los Angeles, California. The complaint alleged that Frank Zolin, the Clerk of the Los Angeles Superior Court, fraudulently executed a grant deed conveying title to the property. Zolin filed a motion pursuant to Fed. R. Civ. P. 12(b) (1) and 12(b) (6). He attached to the motion a copy of the Superior Court order directing Jackson's property to be sold. The order specifically directed the court Clerk to execute the deed to the property for the sale.

A magistrate concluded that a decision on the merits of Jackson's claim would require a review of the Superior Court order by the district court, in violation of this court's pronouncement in Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986). The magistrate therefore dismissed Jackson's complaint with leave to amend.

Jackson filed an amended complaint in which he reiterated his allegation of fraud and alleged that the property was transferred before any Superior Court order was executed.

The magistrate concluded that the amended complaint "does not and cannot cure the fatal defects in the original complaint" and recommended dismissing the action with prejudice. Jackson objected to the magistrate's recommendation but did not produce any evidence to support his allegation that Zolin fraudulently transferred his property. The district court accepted the magistrate's recommendation and dismissed the action. Jackson timely appeals.

ANALYSIS

Jackson contends that the district court erred in dismissing his complaint. We review the dismissal of a complaint on a 12(b) motion de novo. Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

The substance of Jackson's federal claim is that his property was taken from him illegally without due process or just compensation. Because the federal district court could not determine this claim without first evaluating the merits of the California Superior Court's determination that Jackson's property may legally be sold to a third party, Jackson's claim is inextricably intertwined with the Superior Court order. See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-84 n. 16 (1983); Worldwide Church of God v. McNair, 805 F.2d 888, 892 (9th Cir. 1986). This federal action is therefore an impermissible appeal from the state court action. See id. at 892.1  The district court therefore properly dismissed Jackson's complaint.

Jackson contends that McNair does not apply because Zolin's transfer of the property was fraudulent and did not involve any Superior Court order. Jackson, in essence, challenges the district court's implicit finding that the Superior Court papers attached to Zolin's 12(b) motion were genuine. Jackson's contention is meritless.

Zolin's 12(b) (1) motion contained attachments tending to prove that Zolin signed Jackson's deed pursuant to an order of the Superior Court of California. Jackson therefore had the burden of producing evidence outside his pleadings to support his allegation that the district court had jurisdiction. See Trentacosta v. Frontier Pac. Aircraft Industries, 813 F.2d 1553, 1558 (9th Cir. 1987). Jackson, however, did not file any additional evidence; instead, he merely reiterated his allegation of fraud.2  Jackson thus did not make a sufficient showing that the district court had jurisdiction and his complaint was properly dismissed.3 

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

 1

The Supreme Court has made clear that when the facts underlying the federal action are inextricably intertwined with the state court proceedings, the federal claim is barred whether or not the constitutional issues were raised in the state court proceedings. Feldman, 460 U.S. at 482-84 n. 16

 2

Jackson also contended that the dates on the Superior Court order prove that it was executed after Zolin signed the deed. This contention is meritless. The dates are all consistent with Zolin's allegation that he signed the deed on June 9, 1988, three days after the Superior Court order was filed

 3

We therefore need not consider whether the Clerk of the Superior Court can be sued for carrying out the orders of the Superior Court judge