Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 40 (9th Cir. 1990)

Roy T. CROSBY, Plaintiff-Appellant,v.WORKER'S COMPENSATION APPEALS BOARD, Defendant-Appellee.

No. 89-15746.

United States Court of Appeals, Ninth Circuit.

Submitted April 13, 1990.* Decided June 5, 1990.

Before KOELSCH, CHOY and BEEZER, Circuit Judges.


MEMORANDUM** 

Roy Crosby appeals pro se the dismissal of his 42 U.S.C. § 1983 action against the California Worker's Compensation Appeals Board (WCAB). Crosby contends that the WCAB violated his due process rights by sequestering and suppressing his evidence. We affirm.

The WCAB did not default by filing a motion to dismiss as its responsive pleading to Crosby's complaint. Under Fed. R. Civ. P. 12(b) (6) a defendant may make a motion to dismiss for failure to state a claim instead of an answer.

Crosby's action was barred under the eleventh amendment. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). A suit against a state agency is considered to be a suit against the state and barred under the eleventh amendment.

Finally, Crosby's complaint was not curable by amendment because his claim was also barred as res judicata. See Allen v. McCurry, 449 U.S. 90, 95 (1980). In his section 1983 complaint, Crosby seeks to litigate the same issue brought before the California appellate and Supreme Courts: Whether he was denied due process when the WCAB sequestered and suppressed his evidence. The California courts denied his petition for a writ of review. Although both courts denied Crosby's petition without opinion, the denials operated as decisions on the merits. See Shaw v. State of California Dept. of Alcoholic Beverage Control, 788 F.2d 600, 605 n. 3 (9th Cir. 1986). Therefore, Crosby was precluded from relitigating his claim. See McCurry, 449 U.S. 90, 95 (1980).

Because Crosby's claim is barred under the principle of res judicata, he is entitled to no relief. See id. Therefore, the district court did not err in dismissing his claim without granting an opportunity to amend. See Kelson v. City of Springfield, 767 F.2d 651, 653 (9th Cir. 1985).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 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

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