Evans v. Knodell

63 F. App'x 980

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2003
• Docket: No. 02-36081
• Status: Published

Opinion

MEMORANDUM

**

Gary Evans appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion the district court’s decision to invoke the doctrine of judicial estoppel, Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 781 (9th Cir.2001), and we affirm.

Evans claimed violations of his federal and state civil rights stemming from allegations of child abuse made against him in criminal and marriage dissolution proceedings. The district court did not abuse its discretion in concluding that Evans’ position in this action is incompatible with his concession in his marriage dissolution proceeding that the state court was compelled under the circumstances to make a finding of fact that he abused his children. See id. at 782. The record does not support Evans’ contention that he made this concession because of fraud or mistake. Cf. Ryan v. Loui (In re Corey), 892 F.2d 829, 836 (9th Cir.1989) (judicial estoppel did not apply where party changed her position after realizing that she had been “duped”). We also disagree with Evans’ contention that his abuse of process claims should be excepted from the judicial estoppel analysis.

Because the district court properly dismissed the action under the doctrine of judicial estoppel, we need not reach Evans’ contention regarding collateral estoppel.

The record does evidence bias by the district court judge. See id. at 838-89.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.