Lance McDermott v. USPS , 700 F. App'x 701 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LANCE McDERMOTT, No. 16-35630
Plaintiff-Appellant, D.C. No. 2:16-cv-00377-JCC
v.
MEMORANDUM*
UNITED STATES POSTAL SERVICE,
also known as USPS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Lance McDermott appeals pro se from the district court’s judgment
dismissing his action alleging various claims arising from his employment at the
United States Postal Service (“USPS”). We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo the district court’s dismissal on the basis of claim
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
preclusion. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). We
affirm.
The district court properly dismissed McDermott’s action because
McDermott’s claims were raised, or could have been raised, in prior actions
between the parties or those in privity with them, and those prior actions resulted in
final judgments on the merits. See id. (setting forth elements of claim preclusion);
see also Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322
F.3d 1064, 1081 (9th Cir. 2003) (“Even when the parties are not identical, privity
may exist if there is substantial identity between parties, that is, when there is
sufficient commonality of interest.” (citation and internal quotation marks
omitted)).
To the extent that McDermott alleged a violation of the Hatch Act, the
district court properly dismissed the claim because McDermott failed to allege
facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-
42 (9th Cir. 2010) (although pro se pleadings are to be liberally construed, a
plaintiff must still present factual allegations sufficient to state a plausible claim
for relief).
The district court did not abuse its discretion in declaring McDermott a
vexatious litigant and imposing a pre-filing order against him because it gave
McDermott notice and an opportunity to be heard, developed an adequate record
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for review, made findings regarding his frivolous litigation history, and narrowly
tailored the restriction in the pre-filing order. See Molski v. Evergreen Dynasty
Corp., 500 F.3d 1047, 1057-58 (9th Cir. 2007) (setting forth standard of review
and factors a district court must consider before imposing a pre-filing restriction on
a vexatious litigant).
All requests set forth in McDermott’s reply brief, including his request for
appointment of counsel, are denied.
AFFIRMED.
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