Ricky Gonzales v. CDC

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER and CARLOS T. BEA) Gonzales s motion to certify, filed October 22, 2013, is DENIED as moot. AFFIRMED in part, REVERSED in part, and REMANDED. Each party shall bear its own costs on appeal. Judge: DFO Authoring, . FILED AND ENTERED JUDGMENT. [8938789]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICKY GONZALES,
Plaintiff-Appellant,
v.

No. 11-15851
D.C. No.
3:10-cv-01317-SI

CALIFORNIA DEPARTMENT OF
CORRECTIONS,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted
November 5, 2013—Pasadena, California
Filed January 15, 2014
Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain

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GONZALES V. CDC
SUMMARY*

Prisoner Civil Rights
The panel affirmed in part and reversed in part the district
court’s dismissal of a complaint in a 42 U.S.C. § 1983 action
brought by a California state prisoner who challenged his
validation as a gang member and his transfer to a Secured
Housing Unit for an indeterminate term, and remanded.
The panel held that the district court properly concluded
that the claim-preclusive effect of California’s denial of
plaintiff’s habeas petition barred nineteen of plaintiff’s
twenty causes of action. The panel further held, however,
that the district court erred by dismissing plaintiff’s Eighth
Amendment challenge to the debriefing process for lack of
standing. “Debriefing” is the process by which validated
gang members renounce their gang membership, divulge any
gang-related information, and earn their release back into the
prison’s general population. The panel held that construed
liberally, plaintiff’s complaint alleged that he would attempt
to debrief, which he was eligible to do, but for the risk of
retaliation. The panel held that was sufficient to establish
standing and reversed and remanded.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Ryan S. Killian (Certified Law Student) and Zach Tafoya
(Certified Law Student), Pepperdine University School of
Law Ninth Circuit Appellate Advocacy Clinc, Malibu,
California, argued the cause and Jeremy B. Rosen, Horvitz &
Levy LLP, Encino, California, filed the briefs for the
Plaintiff-Appellant.
Kenneth T. Roost, Deputy Attorney General, San Francisco,
California, argued the cause and filed the brief for the
Defendant-Appellee. With him on brief were Kamala D.
Harris, Attorney General of California, Jonathan L. Wolff,
Senior Assistant Attorney General, and Thomas S. Patterson,
Supervising Deputy Attorney General, San Francisco,
California.

OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a state court decision on a
California prisoner’s habeas corpus petition precludes any
claims he might have under federal law.
I
A
Ricky Gonzales has been in custody of the California
Department of Corrections at Pelican Bay State Prison since
2004, when he was found guilty of two counts of attempted
murder and assault with a semi-automatic firearm, and given

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an enhanced sentence for discharge of the firearm and
possession of a firearm by a gang member. In January 2007,
Gonzales was moved from the general population into
administrative segregation and the Institutional Gang
Investigators (“IGI”) began an inquiry into his possible gang
affiliation.
In early May, IGI presented Gonzales with four pieces of
evidence indicating his affiliation with the Northern Structure
prison gang. First, during a search of his cell, prison staff
found a typed letter dated April 5, 2007, identifying other
validated gang members at Pelican Bay and informing him of
gang activity at other prisons. Two other letters, both dated
March 28, 2007, also related to gang activity and were used
to corroborate the April letter.
Second, prison staff found two pieces of artwork
depicting the “Huelga Bird,” a symbol associated with
Northern Structure. One of the pieces of artwork came from
the magazine Lowrider.
Third, prison staff discovered an address card containing
the name and contact information of Jeremy Louden, an
inmate at Pelican Bay who had been validated as a member
of Northern Structure. Gonzales asserts that he and Louden
were former cellmates and communicated “strictly for the
purpose of assisting . . . with legal aid.” According to CDC,
the card not only demonstrated Gonzales’s ability to
communicate with a gang member, but also could be used as
a token to enhance Gonzales’s reputation within the gang.
Fourth, a confidential memorandum from an informant
indicated that Gonzales had “intimate knowledge” of assaults
planned within the prison by Northern Structure. This final

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piece of evidence was determined not to meet departmental
standards because the informant had not specifically
identified Gonzales as a member of the gang.
Gonzales disputed each piece of evidence. IGI sent a
validation package containing the evidence and Gonzales’s
response to the Office of Correctional Safety, which validated
Gonzales as a member of Northern Structure. Because he had
“proven a threat to the security of the institution by his
association with a prison gang engaged in a criminal
conspiracy against the safety of others,” Gonzales was
transferred to the Secured Housing Unit (“SHU”) for an
indeterminate term.
B
After exhausting all administrative remedies, Gonzales
filed a state habeas petition challenging the evidentiary basis
for his confinement in the SHU and seeking release from such
confinement. After ordering and receiving a response from
the state, the Superior Court denied the petition. It concluded
that the source documents constituted “some evidence” that
Gonzales was a gang associate, which was sufficient for due
process purposes, see Toussaint v. McCarthy, 801 F.2d 1080,
1105 (9th Cir. 1986), and that the documents constituted three
independent sources indicative of association with a validated
gang member or associates as required by 15 California Code
of Regulations § 3378(c)(4). Subsequently, the California
Court of Appeal for the First Appellate District and the
Supreme Court of California rejected his appeals.

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C

On March 29, 2010, Gonzales filed this suit under
42 U.S.C. § 1983 in the district court. His complaint asserted
twenty causes of action, which include: (1) the gang
validation violated his rights to free speech and association
under the First Amendment; (2) the validation regulations
were applied in a racially discriminatory manner; (3) he was
classified as a gang member as retaliation for refusing to
waive his right to medical treatment; (4) his validation based
on documents that did not constitute “some evidence”
violated his due process rights; and (5) the prison’s
debriefing1 procedures violated the Eighth Amendment.
Before the complaint was answered, the district court
ordered Gonzales to show cause why his complaint should
not be dismissed as barred by claim or issue preclusion and
to file copies of both his state habeas petition and the
Superior Court’s disposition. After receiving such filings, the
district court concluded that Gonzales’s § 1983 action was
barred by claim preclusion.2 The court also denied
Gonzales’s request, conditioned on his complaint surviving
the show cause order, to amend his complaint to add an
Eighth Amendment challenge to the conditions of his
confinement in the SHU.

1
“Debriefing” is the process by which validated gang members
renounce their gang membership, divulge any gang-related information,
and earn their release back into the prison’s general population.
2

The court dismissed Gonzales’s Eighth Amendment challenge to the
debriefing process for lack of standing.

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The court entered judgment dismissing with prejudice.
Gonzales timely appealed, arguing that the district court
should not have dismissed his retaliation, First Amendment,
and Equal Protection claims as precluded, should not have
dismissed his Eighth Amendment claim for lack of standing,
and should not have denied his conditional motion to amend
his complaint.
II
Gonzales first contends that California habeas decisions
should be afforded issue-preclusive, but not claim-preclusive,
effect on subsequent civil litigation for damages.3
The Federal Full Faith and Credit statute, 28 U.S.C.
§ 1738, requires federal courts to “give to a state-court
judgment the same preclusive effect as would be given that
judgment under the law of the State in which the judgment
was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ.,
465 U.S. 75, 81 (1984). We have considered the preclusive
effect of California habeas judgments on § 1983 litigation in
two previous cases: Silverton v. Department of Treasury,
644 F.2d 1341 (9th Cir. 1981), and Brodheim v. Cry, 584 F.3d
1262 (9th Cir. 2009).

3

For clarity, our Opinion refers to “claim preclusion” and “issue
preclusion” rather than “res judicata” and “collateral estoppel.” See
Taylor v. Sturgell, 553 U.S. 880, 892 & n.5 (2008). Claim preclusion
“forecloses successive litigation of the very same claim, whether or not
relitigation of the claim raises the same issues as the earlier suit.” Id. at
892 (internal quotation marks omitted). Issue preclusion “bars successive
litigation of an issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment, even if the issue
recurs in the context of a different claim.” Id. (internal quotation marks
omitted).

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A

In Silverton, we were faced with the question whether “a
§ 1983 claim [may] be precluded by a prior adjudication on
that claim in a state habeas proceeding,” and concluded that,
“because of the nature of a state habeas proceeding, a
decision actually rendered should preclude an identical issue
from being relitigated in a subsequent § 1983 action if the
state habeas court afforded a full and fair opportunity for the
issue to be heard and determined under federal standards.”
644 F.2d at 1346–47 (emphasis added). In other words, “if a
state hearing is a ‘full and fair hearing’ for federal habeas
purposes, this is also sufficient to mandate that [issue
preclusion] be applied.” Id. at 1347.
We did not settle in that case whether claim preclusion
also should apply to state habeas proceedings. We noted that
the Supreme Court had left open whether “claims which
could have been raised but were not are . . . precluded in
§ 1983 actions,” but decided it was “not necessary for this
court to meet the dangling question in this case.” Id. at 1346
(citing Allen v. McCurry, 449 U.S. 90, 97 n.10 (1980)).
In Brodheim, a California prisoner appealed the district
court’s judgment that his § 1983 claims were barred by the
claim-preclusive effect of a state habeas judgment. 584 F.3d
at 1264. We reversed because the district court had applied
the federal approach to claim preclusion, rather than
California’s approach, under which Brodheim’s claims were
not barred. Id. at 1268–69. Fully analyzing the district
court’s dismissal based on claim preclusion, we concluded
that “the federal action was not barred by the state court’s
decision.” Id. at 1269.

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Nonetheless, Gonzales correctly notes that neither party
in Brodheim raised the issue whether California habeas
determinations have claim-preclusive effect at all on
subsequent civil litigation. Thus, Brodheim did not settle the
question before us.
B
California’s general rule is that “[a] valid final judgment
on the merits in favor of a defendant serves as a complete bar
to further litigation on the same cause of action.” Slater v.
Blackwood, 543 P.2d 593, 594 (Cal. 1975). “It is clearly
established that a party may not split up a single cause of
action and make it the basis of separate suits.” Wulfjen v.
Dolton, 151 P.2d 846, 848 (Cal. 1944).
To support his contention that California exempts denials
of habeas petitions from its general rule, Gonzales relies on
one line of dicta from an intermediate appellate court: “While
a final judgment granting habeas corpus relief is res judicata,
an order denying the writ is not.” Younan v. Caruso, 59 Cal.
Rptr. 2d 103, 108 (Ct. App. 1996) (citation omitted). But
Gonzales removes the sentence from its context: Younan
concerned the claim-preclusive effect of a habeas petition on
a second or successive habeas petition, not on subsequent
civil litigation for damages. Historically, res judicata has not,
of its own force, barred such habeas petitions. See, e.g., In re
Perkins, 2 Cal. 424, 430 (1852) (“[A]ny prisoner may pursue
his remedy of habeas corpus until he has exhausted the whole
judicial power of the State.”).
But Younan itself notes that “successive habeas petitions
based on claims which could have been adjudicated in
previous petitions are not permitted, except in rare instances

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where a fundamental miscarriage of justice has occurred.”
59 Cal. Rptr. 2d at 109 (emphasis added) (citing In re Clark,
855 P.2d 729 (Cal. 1993)). The exception Gonzales urges
does not hold true even as to subsequent habeas petitions.
And nothing in Younan suggests that it applies to subsequent
civil litigation.
California may have a particular “habeas exception” to its
general rule of claim preclusion, but it is not the exception
Gonzales urges, nor is it relevant here. In Gomez v. Superior
Court, the California Supreme Court noted that
the consequences of a summary denial of a
writ petition differ in some respects from the
consequences of a final judgment in a fully
adjudicated case. For example, the denial of
an application for an alternative writ or the
summary denial of a habeas corpus petition
does not establish law of the case and does not
have a res judicata effect in future
proceedings.
278 P.3d 1168, 1175 n.6 (Cal. 2012) (emphasis added). By
implication, then, reasoned denials of California habeas
petitions, as in this case, do have claim-preclusive effect.
C
Gonzales offers several reasons why habeas proceedings
should not have claim-preclusive effect on subsequent civil
litigation, but those arguments are irrelevant to the issue
before us, which is not whether, in a general sense, habeas
judgments should have claim-preclusive effect on subsequent
civil litigation, but whether California affords claim-

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preclusive effect to its habeas judgments. Gonzales cites
several out-of-circuit precedents, but they do not concern
California’s principles of claim preclusion.
For example, in Rhodes v. Hannigan, the Tenth Circuit
determined under Kansas law that habeas judgments of
Kansas courts do not have claim-preclusive effect on
subsequent civil litigation. 12 F.3d 989, 991 (10th Cir. 1993).
Kansas’s doctrine of claim preclusion, however, requires
“identity in the things” for which suit is brought. Id. Thus,
“[s]everal Kansas courts [had] held that a suit for injunctive
relief involves a different cause of action than a suit for
compensatory damages.” Id. A habeas petition “seeks the
remedy of immediate release or a shortened period of
confinement” and a § 1983 suit “requests monetary
compensation.” Id. Therefore, under Kansas law, a habeas
petition and a § 1983 suit “involve different causes of action.”
Id.4
By contrast, California’s doctrine of claim preclusion
does not require identity in relief sought. “Res judicata
precludes piecemeal litigation by splitting a single cause of
action or relitigation of the same cause of action on a
different legal theory or for different relief.” Mycogen Corp.
v. Monsanto Co., 51 P.3d 297, 302 (Cal. 2002) (emphasis
added) (holding that a judgment granting declaratory relief
and decreeing specific performance barred, under claim
preclusion, a subsequent suit for damages).

4
Our sister circuit also offered several “policy reasons . . . against
precluding a prisoner’s § 1983 claim because it was not raised in
conjunction with an earlier petition for habeas corpus relief.” Rhodes,
12 F.3d at 992. We consider those reasons unpersuasive here as they are
not grounded in California’s doctrine of claim preclusion.

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Similarly inapposite is Burgos v. Hopkins, which held
under New York law that New York’s habeas judgments do
not preclude subsequent civil litigation for damages. 14 F.3d
787, 790–92 (2d Cir. 1994). New York does not preclude
claims where “the initial forum did not have the power to
award the full measure of relief sought in the later litigation.”
Id. at 790. California, however, applies claim preclusion
even where the plaintiff initially sued in a court of limited
jurisdiction. See, e.g., Allstate Ins. Co. v. Mel Rapton, Inc.,
92 Cal. Rptr. 2d 151, 160 (Ct. App. 2000) (“A litigant cannot
avoid the impact of the rule against splitting [a] cause[] of
action by choosing for his first foray a tribunal of limited
jurisdiction.” (internal quotation marks omitted; alterations in
original)).
Our sister circuits’ cases do not suggest that California
has a “habeas exception” to its general rule against splitting
a cause of action. California applies claim preclusion
regardless of whether the relief sought in each action is the
same, unlike Kansas, or whether the first court exercised
limited jurisdiction, unlike New York. Therefore, we must
address whether Gonzales’s complaint is claim precluded.
III
Under California’s doctrine of claim preclusion, “all
claims based on the same cause of action must be decided in
a single suit; if not brought initially, they may not be raised
at a later date.” Mycogen Corp., 51 P.3d at 302. As opposed
to the federal “transactional” theory of claim preclusion,
“California courts employ the ‘primary rights’ theory to
determine what constitutes the same cause of action for claim
preclusion purposes.” Brodheim, 584 F.3d at 1268.

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A “‘cause of action’ is comprised of a ‘primary right’ of
the plaintiff, a corresponding ‘primary duty’ of the defendant,
and a wrongful act by the defendant constituting a breach of
that duty.” Crowley v. Katleman, 881 P.2d 1083, 1090 (Cal.
1994). “[I]f two actions involve the same injury to the
plaintiff and the same wrong by 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
relief and/or adds new facts supporting recovery.” Eichman
v. Fotomat Corp., 197 Cal. Rptr. 612, 614 (Ct. App. 1983).
“If the same primary right is involved in two actions,
judgment in the first bars consideration not only of all matters
actually raised in the first suit but also all matters which could
have been raised.” Id. (emphasis added). “[U]nder the
primary rights theory, the determinative factor is the harm
suffered. When two actions involving the same parties seek
compensation for the same harm, they generally involve the
same primary right.” Boeken v. Philip Morris USA, Inc.,
230 P.3d 342, 348 (Cal. 2010).
The parties agree that Gonzales’s primary right was his
protected liberty interest in remaining free from SHU
placement. They also agree that the harm suffered was
Gonzales’s gang validation and indeterminate SHU detention
based on allegedly insufficient or unreliable evidence. Their
dispute is in defining the primary duty that CDC allegedly
breached.
According to Gonzales, the primary duty of CDC was not
to place him in the SHU without affording him established
procedural protections. CDC describes a duty to provide due
process before deciding whether to segregate him. The state
habeas court understood Gonzales to be asserting a federal
due process claim. The more precise description of CDC’s

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primary duty, therefore, was not to deprive Gonzales of
liberty without due process of law.
A
Gonzales contends that his retaliation, First Amendment,
and Equal Protection claims are not precluded, even though
they all challenge the same actions taken by the same
officials at the same time as his previously adjudicated due
process claim. They arise under a distinct “primary right,” he
asserts, because they are inherently substantive rather than
procedural claims.
Gonzales’s theory that procedural and substantive harms
must result in separate causes of action rests not on any
California case, but on Brodheim. In that case, the prisoner’s
state court suit “challenged the fairness of having staff
complaints against the Appeals Coordinator reviewed by the
Appeals Coordinator. He claimed that this effectively
deprived him of his statutory and regulatory rights to file a
complaint by denying him any meaningful review.”
Brodheim, 584 F.3d at 1268. His federal complaint, on the
other hand, “concerned specific acts which he claimed
constituted retaliation for the exercise of his constitutional
right to file a grievance, namely, the ‘warning’ message and
the subsequent transfer request.” Id.
We noted that the two harms—“lack of meaningful
review, a procedural harm, and a retaliatory chilling of
constitutional substantive rights”—were “distinct.” Id. But
our reasoning did not rely simply on a distinction between
procedural and substantive harms; we went on to explain how
the harms were distinct:

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They were caused at different times, by
different acts, and by different actors. In the
state action, the alleged harm was inflicted by
the Warden in 2003, when he allowed Cry to
review grievances Brodheim filed against Cry.
In Brodheim’s federal complaint, on the other
hand, the actual alleged harm was inflicted by
Cry himself when he placed the handwritten
warning on Brodheim’s interview request
form in 2001.
Id. at 1268–69.
Gonzales reads Brodheim’s distinction between
procedural and substantive harms out of context. Although
such a distinction might be helpful in determining whether a
plaintiff has multiple causes of action, Brodheim does not
stand for the proposition that an allegation of a “procedural”
harm always involves a different cause of action from an
allegation of a “substantive” harm.
Moreover, even if Brodheim were to stand for such a
proposition, it would not show that Gonzales has alleged
different causes of action here. The procedural harm in
Brodheim was purely procedural. The prisoner alleged that
the adjudicator of his complaint was biased because the
adjudicator was also the subject of his complaint. By
contrast, Gonzales’s state habeas petition did not allege a
purely procedural harm. The state court evaluated his
challenge under the “some evidence” standard developed in
Madrid v. Gomez, 889 F. Supp. 1146, 1273 (N.D. Cal. 1995).
That case makes clear that “some evidence,” although
mandated by due process, has a substantive component: “In
addition to purely procedural protections, due process also

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requires prison officials to have an evidentiary basis for their
decisions to confine an inmate to a security housing unit.” Id.
(emphasis added).
When challenging the same actions by the same group of
officials at the same time that resulted in the same harm,
Gonzales cannot escape claim preclusion by labeling his state
habeas challenge “procedural” and his § 1983 challenge
“substantive.” See Boeken, 230 P.3d at 348.
B
Gonzales maintains that his First Amendment and Equal
Protection claims should survive because they challenge the
conditions of his confinement, whereas his habeas petition
challenged the fact of his confinement.
CDC concedes that a challenge to the conditions of
Gonzales’s confinement would present a different cause of
action than a challenge to the fact of his confinement, but no
such distinction is present here. Although Gonzales’s brief
describes his First Amendment and Equal Protection claims
as challenges to “the conditions of his current confinement,”
in truth, his challenge is to the fact of his confinement in
SHU. As his complaint puts it, for example: “Defendants
have violated my rights guaranteed by the First Amendment
to the U.S. Constitution in that my confinement in the SHU
is based wholly upon my legal and legitimate attempts in
jailhouse lawyering activities.”
Gonzales challenged the fact of his confinement in the
SHU in his state habeas petition. That he seeks a different
remedy or asserts a different legal theory in his current

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challenge is irrelevant under California’s claim preclusion
doctrine.
IV
Gonzales’s Eighth Amendment challenge to the
debriefing process presents a separate cause of action, not
precluded by his state habeas petitions. The question is
whether he has standing to bring such challenge.
Standing’s three elements—injury in fact, causal
connection, and redressability—are well known and not at
issue here. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992). Generally speaking, “a litigant must
assert his or her own legal rights and interests, and cannot rest
a claim to relief on the legal rights or interests of third
parties.” Powers v. Ohio, 499 U.S. 400, 410 (1991).
Because Gonzales had consistently denied being a gang
member, the district court concluded that he had “alleged no
facts which would suggest that [he] could debrief,” and
therefore lacked standing to challenge the debriefing policy.
Gonzales’s complaint, construed liberally, see, e.g.,
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012), does
not allege that it is impossible for him to debrief, but that it is
impossible for him to debrief successfully. As an adjudicated
gang member, he is eligible to debrief, regardless of whether
he is, in fact, a member of Northern Structure. Of course, if
his allegations are true, he will not be able to convince prison
officials that he has renounced his non-existent gang
membership, a requirement to debrief successfully. But the
risk of retaliation from other gang members—as alleged in

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his complaint—inheres in becoming an “informant,”
regardless of whether his information is accurate.
Construed liberally, Gonzales’s complaint alleges that he
would attempt to debrief, which he is eligible to do, but for
the risk of retaliation. That is sufficient to establish standing.
V
Gonzales’s motion to amend his complaint was
conditioned on his original complaint surviving the district
court’s order to show cause why it should not be dismissed.
As that condition precedent was not met, the district court
denied the motion. But we have determined that the court
erroneously dismissed one count of Gonzales’s complaint.
Therefore, we reverse the court’s denial and remand for
reconsideration.
VI
The district court properly concluded that the claimpreclusive effect of California’s denial of his habeas petition
bars nineteen of Gonzales’s twenty counts. The court erred,
however, by dismissing Gonzales’s Eighth Amendment
challenge to the debriefing process for lack of standing. As
the condition precedent to Gonzales’s motion to amend is
now met, we must reverse the court’s denial of that motion
and remand for reconsideration.5
AFFIRMED in part, REVERSED in part, and
REMANDED. Each party shall bear its own costs on appeal.
5

Gonzales’s motion to certify, filed October 22, 2013, is DENIED as
moot.

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