936 F. 2d 579 - Tedder v. McAlister R

MEMORANDUM**

Norman Edward Tedder, an Oregon state prisoner, appeals pro se the district court's summary judgment dismissing his civil rights action against Oregon Assistant Attorney General James McAlister and Oregon State Penitentiary Captain John Ritter. The court held that Tedder's action against McAlister is barred by res judicata and that the action against Ritter is barred by collateral estoppel. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

We review the district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990). We must determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

Tedder contends that McAlister violated his civil rights by telling Ritter not to honor a subpoena to appear as a witness in Tedder's action against another prison guard. Tedder does not dispute his failure to include the proper witness and mileage fees with the subpoena, but claims that his in forma pauperis status excused the payment of the fees. Tedder raised the same claim against McAlister in Tedder v. Odel, 890 F.2d 210, 211 (9th Cir.1989). In Odel, we held that Tedder's civil rights were not violated where McAlister advised a witness not to honor a subpoena which was not tendered with the proper witness fees. Id. Under the doctrine of res judicata a final judgment on the merits of a claim bars re-litigation of that claim. See Montana v. United States, 440 U.S. 147, 153 (1979); Marin v. H.E.W., Health Care Financing, 769 F.2d 590, 593 (9th Cir.1985). Therefore, the district court did not err in finding Tedder's claims barred by res judicata and granting McAlister's motion for summary judgment.

The district court also was correct in holding that Tedder's claim against Ritter for failure to appear was barred by collateral estoppel. Collateral estoppel bars re-litigation of an issue which a party had a full and fair opportunity to litigate in a prior suit. Allen v. McCurry, 449 U.S. 90, 94-95 (1980). Here, as in Tedder v. Odel, the subpoena did not comply with Fed.R.Civ.P. 45(c) because Tedder failed to attach the required fees. In Odel we held that a witness' failure to appear pursuant to an invalid subpoena did not give rise to civil liability. Thus, Tedder is collaterally estopped from re-litigating the issue of witness liability for failure to appear, and the district court properly granted summary judgment as to Ritter.