                                                                            FILED
                              NOT FOR PUBLICATION                           MAR 10 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 JOHN S. PANGELINAN,                              No. 08-16310

                Plaintiff - Appellant,            D.C. No. 1:08-cv-00004

   v.
                                                  MEMORANDUM *
 DAVID A. WISEMAN; et al.,

                Defendants - Appellees.



                       Appeal from the United States District Court
                     for the District of the Northern Mariana Islands
               Frances Tydingco-Gatewood, Chief District Judge, Presiding

                             Submitted February 16, 2010 **


Before:         FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        John S. Pangelinan appeals pro se from the district court’s judgment

dismissing his action under Bivens v. Six Unknown Named Agents of Federal



          *
             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).

JS/Research
Bureau of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo, Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir.

1996) (immunity); Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (failure

to state a claim), and we affirm.

        The district court properly concluded that the judges were immune to the

extent they were sued for claims arising from their decisions in Pangelinan’s

lawsuits. See Moore, 96 F.3d at 1243-44 (explaining that federal judges are

entitled to absolute immunity for judicial acts taken within their jurisdiction). The

district court also properly concluded that the prosecutor was entitled to absolute

immunity. See Kalina v. Fletcher, 522 U.S. 118, 123-24 (1997) (explaining that a

prosecutor acting in the scope of his or her duties in initiating and pursuing a

criminal prosecution is entitled to absolute immunity). Further, the other federal

defendants were entitled to immunity to the extent they were sued for executing

court orders. See Coverdell v. Dep’t of Soc. & Health Servs., 834 F.2d 758, 764-65

(9th Cir. 1987).

        The district court properly dismissed the claims against the non-federal

defendants because Pangelinan’s conclusory allegations are insufficient to show

that these defendants acted under color of law. See Simmons v. Sacramento

County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (affirming dismissal


JS/Research                                2                                       08-16310
of civil rights claim against private defendant where there were only conclusory

allegations of conspiracy with government officials).

        Moreover, Pangelinan’s claim for retaliatory prosecution was properly

dismissed because there was probable cause for the prosecution. See Hartman v.

Moore, 547 U.S. 250, 265-66 (2006) (holding that, to state a claim for retaliatory

prosecution, the plaintiff must allege and prove the absence of probable cause);

McCarthy v. Mayo, 827 F.2d 1310, 1316-17 (9th Cir. 1987) (explaining that a

grand jury determines whether probable cause exists in a federal prosecution, and

affirming dismissal of malicious prosecution claim in light of grand jury’s

determination of probable cause).

        The district court properly dismissed Pangelinan’s challenge to the judgment

against him in the RICO action as barred by the doctrine of res judicata. See Robi

v. Five Platters, Inc., 838 F.2d 318, 321-22 (9th Cir. 1988) (discussing res

judicata). The district court also properly rejected Pangelinan’s challenge to his

criminal convictions. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (explaining

that a 42 U.S.C. § 1983 action cannot be used to challenge a conviction); Hartman,

547 U.S. at 254 n.2 (explaining that a Bivens action is the “federal analogue” to a

section 1983 action).




JS/Research                               3                                     08-16310
        Pangelinan’s challenge to the assignment of Judge Tydingco-Gatewood is

unpersuasive. See 48 U.S.C. § 1821(b)(2).

        The district court properly denied Pangelinan’s request for entry of default

against the federal defendants because these defendants filed timely motions to

dismiss. See Fed. R. Civ. P. 55(a) (providing that a default can be entered against a

party only where that party “has failed to plead or otherwise defend”).

        The district court did not abuse its discretion by issuing a pre-filing review

order after giving Pangelinan notice and an opportunity to be heard, developing a

record for review, making findings of previous harassing and frivolous litigation,

and narrowly tailoring its order to address Pangelinan’s particular abuses. See

Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056-57 (9th Cir. 2007) (per

curiam) (reviewing for an abuse of discretion entry of a pre-filing review order

against a vexatious litigant, and explaining factors that district courts must examine

before entering such orders).

        Pangelinan’s remaining contentions are unpersuasive.

        We deny the non-federal defendants’ request for sanctions without prejudice

to renewal upon proper motion. See Fed. R. App. P. 38.

        The clerk shall file the reply briefs received on August 3, 2009.

        AFFIRMED.


JS/Research                                 4                                     08-16310
