OpenJurist

95 F3d 1157 Gray v. C Nielson

95 F.3d 1157

Edmond A. GRAY, Plaintiff-Appellant,
v.
Allen C. NIELSON, Defendant-Appellee.

No. 95-36036.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 12, 1996.*
Decided Aug. 19, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BROWNING, SCHROEDER, and RYMER, Circuit Judges.

1

MEMORANDUM**

2

Edmond Gray, a Washington state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint alleging that Allen C. Nielson, a state prosecutor, violated Gray's civil rights during his criminal prosecution. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

3

We review for abuse of discretion a district court's dismissal of an in forma pauperis complaint as frivolous. See Denton v. Hernandez, 504 U.S. 25, 33 (1992); Trimble v. City of Santa Rosa, 49 F.3d 583, 584 (9th Cir.1995).1

4

"[A] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Clark v. Haas Group, Inc., 953 F.2d 1235, 1237 (9th Cir.), cert. denied, 506 U.S. 832 (1992). The parties cannot defeat the application of res judicata by simply alleging new legal theories. Id. at 1238.

5

Because Gray's section 1983 action raises the same issues as he raised in a previous habeas petition, see Gray v. Wood, D.C. No. CV-94-00390-FVS (E.D.Wa. filed July 21, 1995), the district court did not err by dismissing the action as barred by res judicata. See Clark, 953 F.2d at 1237.

AFFIRMED.2

*

The panel unanimously finds this case suitable for decision without oral argument. See 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

1

The district court dismissed this complaint pursuant to 28 U.S.C. § 1915(d) which has been recodified at 28 U.S.C. § 1915(e)(2)

2

Because of our disposition of this appeal, we do not consider the applicability, if any, of the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), to this appeal