Unpublished Disposition, 902 F.2d 40 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1988)

G. Donald MASSEY, Plaintiff-Appellant,v.G.B. WILLIAMS, or any other name used by this defendant,Defendant-Appellee.

No. 89-35184.

United States Court of Appeals, Ninth Circuit.

April 26, 1990.

Before TANG, NELSON and O'SCANNLAIN, Circuit Judges.


G. Donald Massey appeals pro se the district court's order dismissing his first amended complaint for lack of subject matter jurisdiction.1  We affirm.

In his original complaint, Massey alleged federal jurisdiction based on 28 U.S.C. § 1331, 30 U.S.C. §§ 21, 23, 26, 28, 29, and 53. In his amended complaint, Massey added 18 U.S.C. § 1852 as an additional basis for jurisdiction.

The district court properly found that Massey's first amended complaint failed to confer federal jurisdiction over his claims. The district court based its finding on this court's prior affirmance of the district court's dismissal of Massey's original claim for lack of subject matter jurisdiction. See Massey v. Williams, No. 88-3621, unpublished memorandum disposition (9th Cir. Dec. 1, 1988) (Massey I) . In Massey I, this court found that Massey's jurisdictional allegations in both the original and the amended complaint failed to confer federal jurisdiction on his claims. See id.

The law of the case doctrine requires that the decision of an appellate court on a legal issue "must be followed in all subsequent proceedings in the same case." Planned Parenthood of Cent. & N. Ariz. v. Arizona, 718 F.2d 938, 949 (9th Cir. 1983). "The law of the case controls unless the first decision is clearly erroneous and would result in manifest injustice, there has been an intervening change in the law, or evidence on remand is substantially different." Waggoner v. Dallaire, 767 F.2d 589, 593 (9th Cir. 1985) (citing Planned Parenthood), cert. denied, 475 U.S. 1064 (1986).

Here, the decision in Massey I was not clearly erroneous, no manifest injustice is threatened, there has been no intervening change in the law, and the evidence is the same. There is no jurisdiction.

G.B. Williams requests sanctions against Massey for filing this frivolous appeal. This court may impose sanctions even if it has no jurisdiction to hear the merits of the appeal. See Trohimovich v. Commissioner, 776 F.2d 873, 875 (9th Cir. 1985) (court has inherent power to condemn and punish the abusive conduct of litigants). Moreover, we have discretion to impose sanctions against litigants, even pro se, for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; see Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988).

Massey has not only burdened this court with repetitive and meritless claims but has abused the judicial process by his repeated attempts to mislead the court with spurious evidence.2  We, therefore, impose sanctions of $500 on Massey for filing a frivolous appeal.

In addition, we find merit in Williams's request that some constraint be placed on Massey's vexatious litigation.

Accordingly, we impose the following requirement on Massey:

Appellant may not file any federal civil action without leave of the court. In seeking leave of the court, appellant must certify that the claims he wishes to present are new claims never before raised and disposed of on the merits by any federal court. Upon failure to certify or upon a false certification, appellant may be found in contempt of court and punished accordingly.

See e.g., Franklin v. Murphy, 745 F.2d 1221, 1232 (9th Cir. 1984) (imposing a similar restraint on filings).



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 Cir.R. 36-3


Massey also seeks review of the district court's order denying him leave to file a second amended complaint substituting his original trespass claim for an entirely new claim for declaratory relief and/or to quiet title. On February 17, 1989, after the first amended complaint had been dismissed, the district court magistrate denied Massey leave to file this second amended complaint. Massey appealed the magistrate's decision. The district court construed Massey's appeal as a motion to reconsider, which it denied on October 16, 1989. Because no notice of appeal was filed from this order, we lack jurisdiction to consider this issue


Massey repeatedly has offered, as true, a copy of an order mistakenly signed by a Oregon district court judge purporting to dismiss a state criminal proceeding against him. See Massey v. Josephine County, No. 87-4077, unpublished memorandum disposition (9th Cir. Aug. 25, 1988) (this court, unaware of Massey's ruse, erroneously found the state criminal action had been dismissed); Massey v. Champion Int'l Corp., Nos. 88-3914, 88-4104 to 88-4107, unpublished memorandum disposition (9th Cir. Mar. 23, 1990) (this court imposed $2,500 sanctions on Massey finding that sanctions were warranted because Massey knew the document was signed in error but had nevertheless submitted it to the court in an attempt to commit "fraud upon the court")

The document, offered in this appeal to "prove" that the issue of ownership of the land involved in this action has not been decided against him already is bogus, and Massey's reliance on it in this appeal is yet another attempt to perpetrate fraud upon this court.