FILED
NOT FOR PUBLICATION FEB 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGEI PORTNOY; ELENA No. 12-15174
PORTNOY,
D.C. No. 2:11-cv-00264-GEB-
Plaintiffs - Appellants, EFB
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Sergei Portnoy and Elena Portnoy appeal pro se from the district court’s
judgment dismissing with prejudice their complaint against the United States for
alleged intentional and negligent infliction of emotional distress and violations of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Administrative Procedure Act; the Immigration and Nationality Act; the Civil
Rights Act; and the Fourth, Fifth, and Fifteenth Amendments to the U.S.
Constitution. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the dismissal of an action on res judicata grounds. Stewart v. U.S. Bancorp,
297 F.3d 953, 956 (9th Cir. 2002). We affirm the district court’s judgment.
The district court properly dismissed with prejudice the Portnoys’ claims as
being barred by the doctrine of res judicata because the Portnoys raised or could
have raised the same statutory, constitutional, and common-law claims against the
same defendant in a prior federal civil suit that resulted in a final judgment on the
merits. See Portnoy et al. v. United States, No. C-10-1680-KJM (E.D. Cal.
Aug. 19, 2010), summarily aff’d, No. 10-16912 (9th Cir. Nov. 2, 2010) (order); see
also Stewart, 297 F.3d at 956 (“Res judicata, or claim preclusion, prohibits
lawsuits on ‘any claims that were raised or could have been raised’ in a prior
action . . . when there is: ‘(1) an identity of claims; (2) a final judgment on the
merits; and (3) identity or privity between parties.’” (citation omitted) (emphasis in
original)). Case law forecloses the Portnoys’ argument that their prior suit did not
end with a final judgment on the merits. See Hells Cyn. Preserv. Council v. U.S.
Forest Serv., 403 F.3d 683, 686 (9th Cir. 2005) (“‘[F]inal judgment on the merits’
2 12-15174
is synonymous with ‘dismissal with prejudice.’”).
AFFIRMED.
3 12-15174