John Pangelinan v. David Wiseman

FILED
NOT FOR PUBLICATION MAR 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN S. PANGELINAN, No. 08-16310
Plaintiff - Appellant, D.C. No. 1:08-cv-00004
v.
MEMORANDUM *
DAVID A. WISEMAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
John S. Pangelinan appeals pro se from the district court’s judgment
dismissing his action under Bivens v. Six Unknown Named Agents of Federal
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Bureau of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo, Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir.
1996) (immunity); Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (failure
to state a claim), and we affirm.
The district court properly concluded that the judges were immune to the
extent they were sued for claims arising from their decisions in Pangelinan’s
lawsuits. See Moore, 96 F.3d at 1243-44 (explaining that federal judges are
entitled to absolute immunity for judicial acts taken within their jurisdiction). The
district court also properly concluded that the prosecutor was entitled to absolute
immunity. See Kalina v. Fletcher, 522 U.S. 118, 123-24 (1997) (explaining that a
prosecutor acting in the scope of his or her duties in initiating and pursuing a
criminal prosecution is entitled to absolute immunity). Further, the other federal
defendants were entitled to immunity to the extent they were sued for executing
court orders. See Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 764-65
(9th Cir. 1987).
The district court properly dismissed the claims against the non-federal
defendants because Pangelinan’s conclusory allegations are insufficient to show
that these defendants acted under color of law. See Simmons v. Sacramento
County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal
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of civil rights claim against private defendant where there were only conclusory
allegations of conspiracy with government officials).
Moreover, Pangelinan’s claim for retaliatory prosecution was properly
dismissed because there was probable cause for the prosecution. See Hartman v.
Moore, 547 U.S. 250, 265-66 (2006) (holding that, to state a claim for retaliatory
prosecution, the plaintiff must allege and prove the absence of probable cause);
McCarthy v. Mayo, 827 F.2d 1310, 1316-17 (9th Cir. 1987) (explaining that a
grand jury determines whether probable cause exists in a federal prosecution, and
affirming dismissal of malicious prosecution claim in light of grand jury’s
determination of probable cause).
The district court properly dismissed Pangelinan’s challenge to the judgment
against him in the RICO action as barred by the doctrine of res judicata. See Robi
v. Five Platters, Inc., 838 F.2d 318, 321-22 (9th Cir. 1988) (discussing res
judicata). The district court also properly rejected Pangelinan’s challenge to his
criminal convictions. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (explaining
that a 42 U.S.C. § 1983 action cannot be used to challenge a conviction); Hartman,
547 U.S. at 254 n.2 (explaining that a Bivens action is the “federal analogue” to a
section 1983 action).
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Pangelinan’s challenge to the assignment of Judge Tydingco-Gatewood is
unpersuasive. See 48 U.S.C. § 1821(b)(2).
The district court properly denied Pangelinan’s request for entry of default
against the federal defendants because these defendants filed timely motions to
dismiss. See Fed. R. Civ. P. 55(a) (providing that a default can be entered against a
party only where that party “has failed to plead or otherwise defend”).
The district court did not abuse its discretion by issuing a pre-filing review
order after giving Pangelinan notice and an opportunity to be heard, developing a
record for review, making findings of previous harassing and frivolous litigation,
and narrowly tailoring its order to address Pangelinan’s particular abuses. See
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056-57 (9th Cir. 2007) (per
curiam) (reviewing for an abuse of discretion entry of a pre-filing review order
against a vexatious litigant, and explaining factors that district courts must examine
before entering such orders).
Pangelinan’s remaining contentions are unpersuasive.
We deny the non-federal defendants’ request for sanctions without prejudice
to renewal upon proper motion. See Fed. R. App. P. 38.
The clerk shall file the reply briefs received on August 3, 2009.
AFFIRMED.
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