874 F. 2d 815 - Freeman v. State of Washington

MEMORANDUM**

George Freeman (Freeman) appeals pro se the district court's dismissal of his 42 U.S.C. Sec. 1983 action for failure to serve process within 120 days of filing his complaint as required by Fed.R.Civ.P. 4(j) and on eleventh amendment immunity grounds. Freeman contends that the district court erred in dismissing his action because (1) he was not responsible for the United States Marshals' failure to serve process, and (2) he brought an action against Governor Booth Gardner in his individual capacity and not against the state of Washington. Freeman also contends that the district court erred in refusing to join a habeas corpus petition with his pending Sec. 1983 action. We find, however, that Freeman's section 1983 appeal is moot and the district court did not err in refusing to permit Freeman to join an unrelated habeas petition with his pending Sec. 1983 action.

Because mootness is an element of justiciability and raises a question of jurisdiction, this court may consider the issue though neither party has raised it. Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir.1986). A case is moot if this court cannot grant effective relief to the litigants. Id.

Here, Freeman's Sec. 1983 action ("first complaint") was dismissed by the district court for failure to serve process. After filing a notice of appeal with this court, Freeman redrafted his complaint and filed another action in the district court, naming the same parties and transactions ("second complaint"). Freeman effected service in the second complaint on all those defendants named in the first complaint. The district court eventually granted summary judgment in the second complaint as to those defendants on res judicata grounds because previous state court litigation addressed the merits of Freeman's Sec. 1983 action. Freeman appealed the dismissal of his second complaint, which is currently pending before this court (Case No. 87-4342).

Because the relief Freeman seeks in this appeal--an opportunity to properly serve the defendants--has already been effectively granted by the filing of and proper service in his second complaint, this court cannot grant relief to Freeman. Accordingly, the appeal as to Freeman's section 1983 action is dismissed as moot. See Aquirre, 801 F.2d at 1189.

District courts have inherent power to "manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962); Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829 (1986).

Here, about four months after filing his Sec. 1983 action, Freeman attempted to file with the district court a habeas corpus petition which alleged unconstitutional prison conditions. The habeas petition, which also sought monetary damages, was unrelated to his pending Sec. 1983 action because the parties and events in the Sec. 1983 action were not mentioned in the habeas petition. The district court referred the habeas petition to a magistrate and the clerk was directed to set up a new case file. Freeman was so notified. Accordingly, the district court did not err in refusing to permit Freeman to join an unrelated habeas petition with his pending section 1983 action because it was properly managing its docket. See Thompson, 782 F.2d at 831.

Appellees' request for attorneys' fees and double costs against Freeman for bringing a frivolous appeal pursuant to Fed.R.App.P. 38 is denied.

APPEAL DISMISSED.