Unpublished Disposition, 925 F.2d 1470 (9th Cir. 1990)

MEMORANDUM^** 

Robert E. Schaefer appeals pro se the district court's grant of summary judgment in favor of the state defendants, dismissal for failure to state a claim as to the county defendants, and dismissal for failure to file a third amended complaint in his 42 U.S.C. § 1983 action. In his complaint, Schaefer challenged the computation of state tax deficiencies by the California State Board of Equalization ("SBE") and the Franchise Tax Board ("FTB"), the imposition of a tax lien on his real property, and the subsequent sale of the property to satisfy the lien. As defendants, he names employees of the SBE and FTB, county and state police officers who executed court orders, the purchaser of the real property, the state attorney generals who prosecuted the state court action, and the judge who signed the court orders. As relief, he sought damages from all defendants and an order setting aside the liens and sale of the property. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* Where a federal constitutional claim is based on the same asserted wrong as a state action and the parties are the same, res judicata will bar the federal constitutional claim, even if that claim was not asserted specifically in state court. 28 U.S.C. § 1738; Trujillo v. County of Santa Clara, 775 F.2d 1359, 1363 (9th Cir. 1985); see also Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (federal court must apply res judicata rules of particular state to judgments issued by that state).

Under California law, res judicata precludes a plaintiff from litigating a claim if the claim relates to the same "primary right" as a claim in a prior action, the prior judgment was final and on the merits, and the plaintiff was a party to the prior action. Trujillo, 775 F.2d at 1366 (citing Slater v. Blackwood, 15 Cal. 3d 791, 795, 543 P.2d 593, 594, 126 Cal. Rptr. 225, 226 (1975)). " [I]f two actions involve the same injury to the plaintiff and the same wrong by the defendant, then the same primary right is at state even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery." Eichmann v. Fotomat Corp., 147 Cal. App. 3d 1170, 1174-75, 197 Cal. Rptr. 612, 614 (1983).

In addition, the decisions of a state administrative agency acting in a semi-judicial capacity are res judicata under section 1983 where the decision is final and was not appealed pursuant to appellate provisions of state law. See University of Tennessee v. Elliot, 478 U.S. 788, 798-99 (1986) (federal courts must give a state agency's factfinding the preclusive effect it would be entitled to in state court). Under California law, a decision of an administrative body such as the SBE is subject to review and correction only through established avenues of direct attack, such as direct appeal or administrative mandamus. See Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control, 55 Cal. 2d 728, 731, 361 P.2d 712, 713, 13 Cal. Rptr. 104, 105 (1961).

Here, to the extent that Schaefer alleges that the SBE violated state law in assessing tax deficiencies against him, he states no claim under section 1983. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Moreover, the allegations in Schaefer's complaint and on appeal concern the tax lien action which he litigated in state court. Following administrative determinations by the SBE and FTB that he was deficient in his tax payments, which decisions were affirmed on administrative appeal, the state court ordered the sale of his property. Schaefer failed to appeal the administrative decisions by direct appeal or administrative mandamus, and the state courts rejected his other challenges to the tax lien action. Therefore, he is barred from relitigating these issues in federal court. See Elliot, 478 U.S. at 798-99; Trujillo, 775 F.2d at 1363; see also MacKay v. Pfeil, 827 F.2d 540, 453 (9th Cir. 1987) (to the extent a civil rights complaint requests the district court to review the state court's judgment, the district court lacks subject matter jurisdiction over the complaint).

II

In his complaint, Schaefer seeks damages for threatening letters and phone calls from FTB employees who were attempting to collect a personal income tax deficiency. He maintains that these acts were part of a tax enforcement conspiracy against him. He also alleges that FTB supervisors were liable for this conduct based on their failure to train employees adequately.

Schaefer has stated no federal cause of action cognizable under section 1983. See Parratt, 451 U.S. at 535. In any event, his claims are barred by the statute of limitations. Under California law, the statute of limitations for claims brought under section 1983 is one year. Cal.Civ.P.Code Sec. 340(3); Wilson v. Garcia, 471 U.S. 261, 269 (1985); Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Here, the last allegedly harassing act by FTB employees occurred in May 1986, over a year before November 27, 1987, the date Schaefer filed his original complaint. The district court properly concluded that the claims are time-barred.

III

The district court properly dismissed Schaefer's action for failure to state a claim against the county and state police officers who executed court orders, the state attorneys general who litigated the state court action, and the judge who presided over the state court action. All are absolutely immune from liability for damages. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (prosecutorial immunity); McQuade v. United States, 839 F.2d 640, 643 (9th Cir. 1988) (quasi-judicial immunity for police officers executing facially valid court orders); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (judicial immunity). To the extent that Schaefer sued the officers for the damage to his front door from nailing the summonses, he states no claim under section 1983. See Parratt, 451 U.S. at 535. Similarly, the district court properly concluded that Schaefer stated no claim under section 1983 against the purchaser of the property, who allegedly purchased the property despite his knowledge of the "cloud" surrounding its sale. Id.

IV

After the district court disposed of the above claims, it denied the county's motion to dismiss Schaefer's claim against deputy county sheriff Gopperton, who allegedly advised the purchaser of the real property that he could keep any personal property on the premises. Thereafter, the district court denied Schaefer's motion to reconsider its orders but granted him leave on March 9, 1990 to file a third amended complaint. The district court warned Schaefer that failure to file a complaint by April 5, 1990 would result in the dismissal of the entire action. After Schaefer failed to file his amended complaint, the district court dismissed the action.

Under Fed. R. Civ. P. 41(b), a district court may dismiss an action "for failure of the plaintiff to prosecute or comply with these rules or any order of the court." We review a dismissal under Rule 41(b) for an abuse of discretion. Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989). The district court must weigh five factors before imposing dismissal: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987), cert. denied, 488 U.S. 819 (1988). If the district court does not explicitly consider these factors, we review the entire record to determine whether there has been an abuse of discretion. Id.

Here, the district court warned Schaefer that failure to file a third amended complaint would result in the dismissal of his action. We have reviewed the district court record and hold that the court did not abuse its discretion by dismissing the action. Id.

AFFIRMED.