60 F.3d 835

MEMORANDUM**

Robert L. Theede appeals pro se the district court’s: (1) dismissal of his complaint against the United States Veterans Administration, William L. Roberts, Wayne D. Thompson, Dean R. Stordahl, Ausma S. Blumenthal and Neal C. Lawson (the “VA defendants”) as barred by res judicata; and (2) dismissal of the Department of Labor, Elizabeth Dole, Edward Derwinsk, and Clarence H. Nixon (the “Labor Department defendants”) for failure to comply with a district court order. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

* Res Judicata

Theede contends that the district court erred by concluding that his action was barred by res judicata. This contention lacks merit.

A district court’s dismissal on res judicata grounds is subject to de novo review. Palomar Mobilehome Park Ass’n v. City of San Marcos, 989 F.2d 362, 363 (9th Cir. 1993). Res judicata prevents subsequent litigation by the same parties of all claims or defenses that were, or could have been raised in a previous action which led to a final judgment on the merits. Robi v. Five Platters, Inc., 838 F.2d 318, 321 (9th Cir. 1988).

Here, Theede filed a complaint alleging that the VA defendants discriminated against him on the basis of his age when they terminated him from his position as a dentist wit the Veteran’s Administration. Theede has previously filed at least four other actions against the Veterans Administration and its employees based on his termination.1

Because Theede’s present action involves the same parties and is based on the same claims as his prior actions, he is barred under the doctrine of res judicata from relitigating those claims.2 See id.

Theede next contends that the district court erred by dismissing his claim against the Labor Department defendants because he failed to amend his complaint as ordered by the district court. This contention lacks merit.

A district court may dismiss an action for failure to comply with any order of the court. Fed. R. Civ. P. 41(b); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 113 S. Ct. 321 (1992). We will not disturb the district court’s dismissal unless there is a definite and firm conviction that the district court committed a clear error of judgment in its conclusion based upon a weighing of the relevant factors. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987).

On September 2, 1994, the district court ordered Theede to amend his complaint within 20 days because Theede’s complaint made no mention of the Labor Department defendants nor any injury he suffered as a result of their actions. Theede did not file an amended complaint, instead, he filed a motion for reconsideration in which he stated that “AN AMENDED COMPLAINT DEFEATS THE ISSUES” but again failed to mention these defendants or the injuries which he sustained. On November 11, 1994, the district court dismissed Theede’s claim for failure to amend his complaint.

In light of the express instructions given to Theede and his failure to amend his complaint, the district court did not abuse its discretion by dismissing Theede’s action.3 See Ferdik, 963 F.2d at 1261-62.

AFFIRMED.

MEMORANDUM**

Jose Luis Vargas, a federal prisoner, appeals pro se the district court’s order granting the United States’ motion for summary judgment in Vargas’s action brought under the Federal Torts Claim Act (“FTCA”) 28 U.S.C. Sec. 2671 et seq. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

* Background

In his complaint, Vargas sought damages for personal injuries, allegedly caused by the negligence of Officer Escobedo, a federal correctional officer, when Escobedo authorized or negligently failed to prevent another inmate, who was wheeling a cart, from crossing a volleyball court on which Vargas and other prisoners were playing. The complaint alleged that Vargas collided with the cart, resulting in personal injuries.

The government moved for summary judgment based on a supporting declaration from Officer Escobedo, an eyewitness to the events. In his declaration, Escobedo stated that he instructed the inmate pushing the cart to wait until there was a break in play to push the cart across the volleyball court. The inmate acknowledged the instruction, but when Escobedo returned to his post a few seconds later, he saw the inmate proceeding onto the court. Before Escobedo could stop the inmate or even shout a warning, Vargas backed into the empty cart, which was approximately 18 inches off the ground, and fell, landing on top of the cart.

Escobedo stated that “Vargas appeared to be unhurt because he stood up on the cart and pretended he was surfing while the other inmate pushed him around the volleyball court.” Escobedo ordered “the two inmates to stop their horseplay.” The inmate pushing the cart stopped and Vargas tumbled onto a gym mat. Another inmate joined them, pulling at Vargas’s legs. Escobedo ordered the inmate to get away from Vargas, who was complaining that he had no feelings in his legs. Escobedo called for medical assistance and Vargas was carried on a gurney to the medical facility. Approximately forty-five minutes later, Escobedo stated that Vargas returned to the rooftop recreation area and was walking without any apparent difficulty.

Vargas did not file an opposition to government’s motion for summary judgment, and the district court granted summary judgment for the government finding that pursuant to California law, Vargas had assumed the risk of injury, or, alternatively, that the correctional officer was not negligent.

We review de novo the grant of summary judgment. Hopkins v. Andaya, 958 F.2d 881, 884 (9th Cir.1992) (per curiam). Summary judgment is appropriate if the evidence, read in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Taylor v. List, 880 F.2d 1040, 1044 (9th Cir.1989); Fed.R.Civ.P. 56(c).

The party moving for summary judgment “bears the initial responsibility for informing the district court of the basis for its motion….” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he burden on the moving party may be discharged by ‘showing’–that is, pointing out to the district court–that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.

In cases where the nonmoving party bears the burden of proof at trial with respect to a material fact, the party opposing the motion is required “to go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324 (quoting Fed.R.Civ.P. 56(e)). “To show existence of a ‘genuine’ issue, … [the plaintiff] must produce at least some significant probative evidence tending to support the complaint.” Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir.1990) (quotations omitted). Thus, the plaintiff cannot rest on the allegations in his pleadings to overcome a motion for summary judgment. See Ghebreselassie v. Coleman Sec. Serv., 829 F.2d 892, 898 (9th Cir.1987), cert. denied, 487 U.S. 1234 (1988).

Here, the government met its initial burden. Because Vargas has the burden of proving at trial that the government’s negligence caused his injury, he must produce specific evidence showing a genuine issue of fact as to each element of his claim to withstand summary judgment. See Celotex, 477 U.S. at 322, 324.

Vargas, however, did not file an opposition to the motion for summary judgment.1 See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.1995) (although pro se pleadings are construed liberally, pro se litigants are nonetheless bound by the rules of procedure). Thus, Vargas failed to offer significant probative evidence of specific facts to be resolved at trial. See Celotex, 477 U.S. at 324. Accordingly, the district court was correct in finding that Vargas had not produced evidence establishing a genuine issue of material fact as to each element of his claim and that the government was entitled to summary judgment. See Henry, 983 F.2d at 950; Smolen, 921 F.2d at 963.

AFFIRMED.