Case4:06-cv-04175-PJH Document94 Filed09/21/10 Page1 of 6

1
2
3 UNITED STATES DISTRICT COURT
4 NORTHERN DISTRICT OF CALIFORNIA
5 OAKLAND DIVISION
6
7 JOSE LUIS MORALES,
8 Plaintiff, No. C 06-4175 PJH (PR)
9 v.
ORDER GRANTING MOTION
10 PELICAN BAY STATE PRISON, FOR SUMMARY JUDGMENT
JACQUEZ, FERGUSON, and
United States District Court

11 COLEMAN,
For the Northern District of California

12 Defendants.
/
13
14 This is a civil rights case filed pro se by a state prisoner. Plaintiff contends that
15 defendant Ferguson, who was the hearing officer on a rules violation report written against
16 plaintiff, violated his constitutional rights with respect to the hearing, and that defendant
17 Cook, as presiding officer at two Institutional Classification Committee meetings, violated
18 his rights by classifying him for Security Housing Unit housing on the basis of the allegedly
19 unconstitutional disciplinary conviction. Defendants have moved for summary judgment
20 and plaintiff has opposed the motion. Plaintiff has also filed several other motions. For the
21 reasons set out below, summary judgment will be granted.
22 BACKGROUND
23 Summary judgment was granted for defendant Ferguson, the only defendant
24 remaining in the case at that time, on grounds that plaintiff’s claims were barred by the rule
25 announced in Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff’s motion to alter or amend
26 the judgment was granted when he established that the good time he had lost from the
27 disciplinary decision had been restored to him, meaning that a favorable result here would
28 not implicate the length of his confinement and that the case was not subject to Heck. The
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1 case was reopened. After reopening, the case was stayed and referred to a magistrate
2 judge to conduct settlement proceedings.
3 The case did not settle. Plaintiff filed a supplemental pleading that included claims
4 against a new defendant, M. A. Cook, and additional claims against Ferguson; this is now
5 the operative complaint in the case. The court ordered service on Cook and ordered
6 Ferguson to elect whether to continue with a motion for summary judgment he had filed,
7 which after the supplemental complaint did not go to all the claims against him, or file a new
8 comprehensive motion. Ferguson elected to file a comprehensive motion, and he and
9 Cook have jointly done so.
10 DISCUSSION
United States District Court

11 A. Standard of Review
For the Northern District of California

12 Summary judgment is proper where the pleadings, discovery and affidavits show
13 that there is "no genuine issue as to any material fact and that the moving party is entitled
14 to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may
15 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
16 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury
17 to return a verdict for the nonmoving party. Id.
18 The moving party for summary judgment bears the initial burden of identifying those
19 portions of the pleadings, discovery and affidavits which demonstrate the absence of a
20 genuine issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986); Nissan
21 Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). When the moving
22 party has met this burden of production, the nonmoving party must go beyond the
23 pleadings and, by its own affidavits or discovery, set forth specific facts showing that there
24 is a genuine issue for trial. If the nonmoving party fails to produce enough evidence to
25 show a genuine issue of material fact, the moving party wins. Id.
26 B. Analysis
27 Defendants contend that plaintiff’s claims are precluded by the state court denial of
28 his habeas petition raising the same claims. Defendants’ motion to take judicial notice of

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1 the state court record in In re Jose Luis Morales, Del Norte County Superior Court HCB07-
2 5062, and in In re Jose Luis Morales, First District California Court of Appeal A 118146, will
3 be granted. See Fed. R.Evid. 201; Biggs v. Terhune, 334 F.3d 910, 915 n. 3 (9th
4 Cir.2003), overruled in part on other grounds, Hayward v. Marshall, 603 F.3d 546, 555 (9th
5 Cir. 2010) (“[m]aterials from a proceeding in another tribunal are appropriate for judicial
6 notice”).
7 Under the circumstances discussed below, the doctrine of claim preclusion
8 (sometimes called “res judicata”) bars parties from relitigating in federal court claims that
9 were litigated or could have been litigated in a prior action in state court, provided the prior
10 action was decided on the merits. See Allen v. McCurry, 449 U.S. 90, 94 (1980). In
United States District Court

11 applying claim preclusion, the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738,
For the Northern District of California

12 requires that a federal district court “give to a state-court judgment the same preclusive
13 effect as would be given that judgment under the law of the State in which the judgment
14 was rendered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
15 That the previous state court case was a habeas action and the federal case is a section
16 1983 action, as here, makes no difference, despite the difference in the relief available in
17 the two proceeds. Silverton v. Dep't of Treasury, 644 F.2d 1341, 1347 (9th Cir.1981)
18 (describing the difference in relief available in the state habeas case versus the federal
19 section 1983 case as “unimporant.”).
20 The Ninth Circuit recently set out California’s test for preclusion:
21 Under California's claim preclusion doctrine “a valid, final judgment on
the merits precludes parties or their privies from relitigating the same ‘cause
22 of action’ in a subsequent suit” (Le Parc Cmty. Ass'n v. Workers' Comp.
Appeals Bd., 110 Cal.App.4th 1161 (2003)). Thus three requirements have to
23 be met: (1) the second lawsuit must involve the same “cause of action” as the
first one, (2) there must have been a final judgment on the merits in the first
24 lawsuit and (3) the party to be precluded must itself have been a party, or in
privity with a party, to that first lawsuit.
25
26 San Diego Police Officers' Ass'n v. San Diego City Employees’ Reitrement Sys., 568 F.3d
27 725, 734 (9th Cir. 2009).
28 ///

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1 As to the third requirement, the person against whom preclusion is sought – plaintiff
2 – was a party to the previous case. The second requirement is that the state court decision
3 be final and have been on the merits. The state court decision is final, because the court of
4 appeal’s denial occurred on June 28, 2007, and plaintiff does not dispute that he did not
5 petition for review. The California Superior Court denied the petition on the merits, saying
6 that “Petitioner has failed to establish sufficient grounds or circumstances upon which relief
7 may be granted. Sufficient evidence supported the administrative decision. No abuse of
8 administrative discretion is shown.” Mot. Jud. Notice, Ex. 2. The California Court of Appeal
9 ruling simply said “The petition for a Writ of Habeas Corpus is denied.” Id. at Ex. 4. These
10 decisions were on the merits. See Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992)
United States District Court

11 (California Supreme Court’s ruling “Petition for writ of habeas corpus DENIED[]” is a ruling
For the Northern District of California

12 on the merits). The second requirement therefore is satisfied.

13 The first requirement, that the cases involve the same “cause of action,” requires a
14 bit more discussion.
15 California law holds a final judgment of a state court “precludes further
proceedings if they are based on the same cause of action.” Maldonado [v.
16 Harris], 370 F.3d [945], 952 [9th Cir. 2004]. Unlike the federal courts, which
apply a “transactional nucleus of facts” test, “California courts employ the
17 ‘primary rights' theory to determine what constitutes the same cause of action
for claim preclusion purposes.” Id.
18
Under this theory, “a cause of action is (1) a primary right possessed
19 by the plaintiff, (2) a corresponding primary duty devolving upon the
defendant, and (3) a harm done by the defendant which consists in a breach
20 of such primary right and duty.” City of Martinez v. Texaco Trading & Transp.,
Inc., 353 F.3d 758, 762 (9th Cir.2003), citing Citizens for Open Access to
21 Sand and Tide, Inc. v. Seadrift Ass'n, 60 Cal. App. 4th 1053, 1065 (1998).
“[I]f two actions involve the same injury to the plaintiff and the same wrong by
22 the defendant, then the same primary right is at stake even if in the second
suit the plaintiff pleads different theories of recovery, seeks different forms of
23 relief and/or adds new facts supporting recovery.” Eichman v. Fotomat Corp.,
147 Cal. App. 3d 1170, 1174 (1983), quoted in San Diego Police Officers'
24 Ass'n, 568 F.3d at 734.
25 Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009).
26 The state court records attached to defendants' request for judicial notice show that
27 petitioner raised in his state court habeas petition the same claims he presents here.
28 Compare Mot. Jud. Notice, Ex. 1 at AGO 0008-AGO 0019 (superior court petition), Ex. 3 at

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1 AGO 0076-77(court of appeal petition), with Supp. Compl. at 5-11. The California Superior
2 Court denied the petition on the merits, saying that “Petitioner has failed to establish
3 sufficient grounds or circumstances upon which relief may be granted. Sufficient evidence
4 supported the administrative decision. No abuse of administrative discretion is shown.” Id.
5 at Ex. 2, AGO 0070.
6 “The critical focus of primary rights analysis ‘is the harm suffered.’ San Diego Police
7 Officers Ass'n, 568 F.3d at 734, quoting Agarwal v. Johnson, 25 Cal.3d 932, (1979); see
8 also City of Martinez, 353 F.3d at 762.” Brodheim, 584 F.3d at 1268. Unlike in Brodheim,
9 here the harms alleged are the same in both cases, state and federal, namely violations of
10 petitioner’s constitutional rights at the disciplinary hearing, causing him to be given a SHU
United States District Court

11 term. And the same wrongs by defendants are involved, that is, alleged violation of
For the Northern District of California

12 plaintiff’s constitutional rights in the course of the disciplinary hearing giving rise to his
13 assignment to the SHU. The same primary right was involved in both cases, and thus the
14 third of the California requirements for preclusion is satisfied.
15 In opposition, plaintiff contends that a decision in a habeas case cannot be
16 preclusive in a civil rights case, citing Burgos v. Hopkins, 14 F.3d 787, 790-91 (2d Cir.
17 1994). He is correct that the court in Burgos so held, but the rule is otherwise in the Ninth
18 Circuit, and of course this court must follow Ninth Circuit law. See Silverton, 644 F.2d at
19 1347. He also relies on the Supreme Court’s statement in Preiser v. Rodriguez, 411 U.S.
20 475 (1973), that its holding there that attacks on the fact or length of confinement must be
21 brought in habeas “in no way precludes [a prisoner] from simultaneously litigating in federal
22 court, under § 1983, his claim relating to the conditions of his confinement.” Id. at 499 n.14.
23 This statement, however, does not address the potential preclusive effect of a final
24 judgment in one of those simultaneous cases. Plaintiff’s other arguments also are without
25 merit.
26 All of the California requirements for application of claim preclusion having been
27 satisfied, the court concludes that the present claims are bared by claim preclusion.
28 CONCLUSION

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1 1. Defendants’ motion for judicial notice (document number 77 on the docket) is

2 GRANTED.
3 2. Plaintiff’s motion for an order allowing him to interview inmate witnesses
4 (document 70) is DENIED because the court has disposed of the motion for summary
5 judgment on a purely legal ground, as to which inmate statements would not be relevant.
6 3. Plaintiff’s motion for leave to file a motion to reconsider actually is a motion for
7 leave to file a surreply. The motion (document 90) is DENIED because plaintiff has failed
8 to establish any reason why his arguments regarding preclusion could not have been
9 presented in his opposition; in any event, they are without merit.
10 4. For the foregoing reasons, defendants' motion for summary judgment (document
United States District Court

11 number 76 on the docket) is GRANTED. The complaint is DISMISSED with prejudice. The
For the Northern District of California

12 clerk shall close the file.

13 IT IS SO ORDERED.
14 Dated: September 21, 2010.
PHYLLIS J. HAMILTON
15 United States District Judge
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