Unpublished Disposition, 936 F.2d 580 (9th Cir. 1987)

MEMORANDUM^** 

Terry Michael Turner appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action as frivolous. We affirm.

BACKRGOUND

While imprisoned in a Hawaii state prison facility, Turner was attacked by fellow inmates on July 13, 1987 and injured. Turner brought an action against various prison officials and the State of Hawaii in Turner v. Shimoda et al., CV-87-740-HMF, in which he sought damages for injuries arising out of that attack.

Defendants in this case presented documents in Shimoda,¹  stating that the attack occurred in the prison recreational area. Turner, however, asserts the attack occurred in "module three maximum security." Therefore, he argues that defendants committed a fraud on the court and deprived him of protection from physical abuse.

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. § 3742. We review de novo whether Turner's complaint is frivolous. United States v. McConney, 728 F.2d 1195, 1204-05 (9th Cir.), cert. denied, 469 U.S. 824, 105 S. Ct. 101, 83 L. Ed. 2d 46 (1984). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831, 104 L. Ed. 2d 338 (1989).

DISCUSSION

Construed liberally, Turner's complaint seems to allege that defendants fraudulently misstated the place of the attack, and that misstatement caused him to be deprived of status as an inmate deserving of special protection. First, there was no fraud. When defendants filed their motion for summary judgment in Shimoda, they stated they were willing to accept Turner's version of events as correct. Thus, the judgment against him in that case was not based on the affidavit to the contrary.

Second, the complaint fails to allege how the purported fraud could have deprived Turner of anything, except, of course, the same relief he was demanding in the Shimoda case. Turner has appealed that case, and another panel of this court has that appeal under consideration. Principles of res judicata militate against readjudicating that matter on this appeal. See generally Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398-99, 101 S. Ct. 2424, 2428, 69 L. Ed. 2d 103 (1981).

Third, regarding defendant Penarosa, a civil rights action will not lie against a person for making a false statement in an affidavit to a court. Burns v. County of King, 883 F.2d 819, 821-23 (9th Cir. 1989). Defendants Price, Grayson and Campbell are immune from liability for advocacy functions performed in defense of civil rights litigation, which includes filing pleadings as part of the defense. See Murphy v. Morris, 849 F.2d 1101, 1105 (8th Cir. 1988); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir. 1986).

AFFIRMED.