OpenJurist

921 F2d 281 Tedder v. O'Leary

921 F.2d 281

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Norman E. TEDDER, Plaintiff-Appellant,
v.
James O'LEARY, Andrijs Eglitis, Loren Peterson, Gene Hanner,
Malcolm Marsh, Defendants-Appellees.

Nos. 90-35065, 90-35079.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.*
Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.

1

MEMORANDUM**

2

Norman E. Tedder appeals pro se the district court's dismissal of his civil rights action for failure to state a claim. The court held that Tedder's action is barred by res judicata, prosecutorial immunity, and the statute of limitations. We review de novo, Lea v. Republic Airlines, 903 F.2d 624, 634 (9th Cir.1990), and affirm.

3

This is the fourth action Tedder has filed based on the same allegations arising out of the search of his home on January 24, 1978. See Tedder v. State of Oregon Corrections Dept., 911 F.2d 739 (9th Cir.1990) (Table,

4

Unpublished Disposition) (habeas petition); Tedder v. Peterson, 911 F.2d 739 (9th Cir.1990) (Table,

5

Unpublished Disposition) (section 1983 action); Tedder v. Frohnmayer, 848 F.2d 1213 (9th Cir.1988) (Table,

6

Unpublished Disposition) (section 1983 action). These claims have already been decided on the merits against Tedder. Under the doctrine of res judicata a final judgment on the merits bars further claims based on the same cause of action. See Montana v. United States, 440 U.S. 147, 153 (1979). Therefore, the district court did not err in finding Tedder's claims barred by res judicata.

7

The district court was also correct in finding that Tedder's claims against O'Leary and Eglitis are prohibited by the doctrine of prosecutorial immunity. It is well settled that "in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under Sec. 1983." Imbler v. Pachtman, 424 U.S. 409, 431 (1976); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986) (en banc). O'Leary's and Eglitis's activities in prosecuting Tedder based on the evidence seized in the search of Tedder's home was part of their prosecutorial function. Thus, O'Leary and Eglitis are immune from suit as a matter of law. See id.

8

Finally, the district court was correct in finding that Tedder's action is barred by the statute of limitations. State law determines the limitations period for a section 1983 claim. Wilson v. Garcia, 471 U.S. 261, 275 (1985). In Oregon, the two-year statute of limitations for personal injury actions applies to section 1983 actions. Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir.1989). Tedder filed this action 11 years after the events giving rise to his complaint, long after the statute of limitations had run.

9

Tedder initially filed this complaint as a mandamus petition requesting that the district court compel district attorneys O'Leary and Eglitis to produce the search warrant served on Tedder on January 24, 1978. The district court directed him to refile his petition as a civil rights complaint. On appeal, Tedder contends that the district court erred by not issuing the writ of mandamus. Mandamus is an extraordinary remedy to be utilized only in the most urgent cases. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33 (1980). Mandamus relief is available to compel an official of the United States to perform a duty owed to an individual only if (1) the individual's claim is clear and certain; (2) the official's duty is "ministerial and so plainly prescribed as to be free from doubt"; and (3) no other adequate remedy is available. Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir.1986). Here, Tedder could not meet this test. The validity of the search warrant had already been established in the state criminal trial and in Tedder's previous section 1983 actions and habeas petition. Thus, his claim was not clear and certain, and he did have other remedies available. Thus, the district court did not err in denying the petition for mandamus.

10

AFFIRMED.

*

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