921 F2d 281 Richardson v. County of Merced G C

921 F.2d 281

Unpublished Disposition

Lewis RICHARDSON, Plaintiff-Appellant
The COUNTY OF MERCED, Merced County Board of Supervisors,
Merced County Sheriff's Office Wyatt G. Davenport, Tony
Whitehurst, Sheriff William C. Amis, Jr., Undersheriff Jerry
Brockman, Captain David Hammond Sergeant Jerry Carlson,
Sergeant James Edmondson, in their official and individual
capacities, Defendants-Appellees

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 89-15295.


United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 19, 1990.
Decided Dec. 28, 1990.



Before BEEZER and KOZINSKI, Circuit Judges, and STEPHENS,* District Judge.



The parties agree on the facts. Plaintiff is a former deputy sheriff with the County of Merced's Sheriff Department. He was fired for being insubordinate, discourteous, and in violation of departmental rules. After his termination, Sheriff Amis made some allegedly defamatory remarks about the plaintiff.


Richardson appealed this termination under the county's administrative procedure for discipline review. The County Appeals Board overturned the termination as being an excessive penalty, and instead imposed a two-month suspension. The County appealed this decision to the next level of review.1 The Merced County Board of Supervisors reversed the County Appeals Board and reinstated Richardson's termination.


Richardson sought review in court by filing a petition for a writ of administrative mandate pursuant to Cal.Civ.Pro.C. Sec. 1094.5. In his complaint, plaintiff asked only for reinstatement to his former position. The trial court found that termination was grossly excessive, and remanded to the Board of Supervisors for imposition of a fair, just, and reasonable penalty. Again, the County appealed. However, on August 1, 1988, the California Appellate Court upheld the trial court's decision. Richardson also filed a complaint in district court on December 14, 1987, asserting violations of his civil rights. In particular, plaintiff alleges that the Sheriff, certain managerial employees in the Sheriff's Department, and others, had violated his rights to freedom of speech, due process, and equal protection, by retaliating against Mr. Richardson for publicly protesting the sheriff's policy and practice of protecting his personal friends. Plaintiff also asserted a claim for defamation based on remarks made by Merced County Sheriff Amis about Richardson after his termination.


On January 24, 1989, the district court granted defendants' motion for summary judgment dismissing Richardson's causes of action based on the First and Fourteenth Amendments as being barred by res judicata. The court also dismissed, without prejudice, plaintiff's claim for defamation, on the grounds that jurisdiction no longer existed. Plaintiff filed timely notice of appeal on February 21, 1989.


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A grant of summary judgment is reviewed de novo. Darring v. Kinchloe, 783 F.2d 874, 876 (9th Cir.1986). A district court's interpretation of state law is also reviewed de novo. In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). On appeal, plaintiff argues that summary judgment was inappropriate as to his 42 U.S.C. Sec. 1983 action because he was not barred by res judicata. He also argues that his remaining claim states a cause of action under federal law, and should not be dismissed for lack of jurisdiction.


I. Did the district court err in finding that plaintiff was barred from seeking damages in federal court?


The district court found that plaintiff's federal action was barred by the state writ of mandamus proceedings. A federal court must give the state court judgment the same preclusive effect as it would have been entitled to in the courts of the state in which it was entered. Heath v. Cleary, 708 F.2d 1376, 1379 (9th Cir.1983).


A. Did plaintiff have a full and fair opportunity to litigate the issue of damages in state court?


In this Circuit, the basic rule is that "when a party seeks relief in the state court for an alleged wrong, the state court judgment bars the plaintiff from seeking relief on constitutional grounds from the same defendant for the same wrong, in federal court." Gallagher v. Frye, 631 F.2d 127, 128 (9th Cir.1980) (citing Scoggin v. Schrunk, 522 F.2d 436 (9th Cir.1975), cert. denied, 423 U.S. 1066 (1976)). However, the Supreme Court has held that neither claim nor issue preclusion can be applied by a federal court if there was not a full and fair opportunity to litigate in the state proceeding. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 480-81 & n. 22 (1982).


In the present case, it is clear that a claim involving federal constitutional rights may be joined to a California mandamus action. Gallagher, 631 F.2d at 130 (42 U.S.C. Sec. 1983 claim could have been joined to a California mandamus action). State courts are competent to hear claims of 42 U.S.C. Sec. 1983 violations. Martinez v. California, 444 U.S. 277, 283 n. 7 (1980). A California court may grant relief in the form of damages together with a writ of mandamus regarding the same action. See Cal.Civ.Pro.Code Secs. 1090, 1095 (1990). This includes the more specialized writ of administrative mandamus. Woods v. Superior Court, 28 Cal.3d 668, 673-74 (1981). Since relief may be granted, claims for damages can be joined to actions for writ of mandate and all appropriate evidence introduced.


Therefore, Richardson had a full and fair opportunity to litigate his Sec. 1983 calim in state court. Whether the defendant's motion should be granted depends solely on the law in California pertaining to res judicata.


B. Was one "primary right" involved in the two actions?


Under California law, the principle of res judicata carries two aspects. First, "[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, 15 Cal.3d 791, 795 (1975) (en banc). In addition, where the plaintiff is successful in a previous action, the plaintiff is unable to bring a second suit based on the same cause of action and must act only on the prior judgment. Hatch v. Bank of America, 182 Cal App.2d 206 (1960); 7 B. Witkin, California Procedure, Judgments Sec. 243 (1985).


To determine whether the same cause of action is at issue, the California courts employ the "primary rights" theory. As stated in Eichman v. Fotomat Corp., 147 Cal.App.3d 1170 (1983), "if 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." Id. at 1174-75. Therefore, the invasion of one primary right gives rise to one cause of action. Slater, 15 Cal.3d at 795.


Unfortunately, the determination of whether one or more "primary rights" exists is not a simple matter. The fact that the same facts are involved is not conclusive. For example, compare Agarwal v. Johnson, 25 Cal.3d 932 (1979) with Mattson v. City of Costa Mesa, 106 Cal.App.3d 441 (1980). In Agarwal, plaintiff suffered discriminatory treatment by his employer. He brought a state court action against his employer for defamation and intentional infliction of emotional distress seeking general and punitive damages. The California Supreme Court held that a prior action in federal court alleging discrimination under the Civil Rights Act in which the plaintiff sought back pay did not bar the state court action. In Mattson, plaintiff was unlawfully arrested and confined. A first federal action based on the Civil Rights Act was found to bar a later state court action for negligence, assault, and battery.


In Clark v. Yosemite Community College Dist., 785 F.2d 781 (9th Cir.1986), plaintiff was a teacher in a community college who was accused by students of sexual harassment and discrimination. His employer maintained a file on this and allegedly interfered with his teaching and with outside business contacts. Plaintiff first sought, and obtained, a writ of mandate ordering the employer to desist from interfering with plaintiff's teaching and to remove derogatory materials from his file. Plaintiff then brought an action in federal court based on 42 U.S.C. Sec. 1983 seeking damages for defamation. On appeal, we held that the had the first action been limited to enforcing administrative procedures, the second action would not have been barred. Since Clark's arguments ranged beyond that, we upheld the district court decision that this was one "primary right" and that the action was barred by the prior state court proceeding. But see Gallagher, 631 F.2d at 127 (in an employment termination case, writ of mandate limited to ordering back pay and reinstatement did not bar Sec. 1983 suit for wrongful conduct).


Likewise, Takahashi v. Board of Trustees of Livingston, 783 F.2d 848 (9th Cir.), cert, denied, 476 U.S. 1182 (1986), involves a teacher's employment dispute. Plaintiff was fired and sought a writ of mandate seeking reinstatement. Plaintiff failed to obtain a writ because the court found that she was fired for just cause. Id. at 851. She subsequently brought an action in federal court under 42 U.S.C. Sec. 1983 alleging discrimination. Again, the court of appeals upheld the district court's holding that this was one primary right and that the state action barred the federal action.


In the present case, only one wrong was committed and plaintiff only suffered one harm, a disciplinary action. The language from Eichman quoted above indicates neither the underlying remedy nor the identity of facts is dispositive as to whether one or more primary rights is affected. It is the harm suffered which is the significant factor. Agarwal, 25 Cal.3d at 954-55. In addition, courts have generally found that the primary rights at issue in a civil rights action are the same as those at issue in a California common law tort action. See, e.g., Takahashi, 783 F.2d at 851; Clark, 785 F.2d 784-87; Agarwal, 25 Cal.3d at 955; Mattson, 106 Cal.App.3d at 447-48; City of Los Angeles v. Superior Court, 85 Cal.App.3d 143, 153 (1978). Therefore, plaintiff suffered damage to only one primary right and his 42 U.S.C. Sec. 1983 action is barred by res judicata.


II. Did the district court err in dismissing plaintiff's pendant "defamation" claim?


Plaintiff argues that his claim for damages resulting from certain allegedly defamatory remarks made by Sheriff Amis is an additional claim for violations of his federal rights, and, therefore, cannot be dismissed for lack of jurisdiction, even if plaintiff's other claims are dismissed. Defendants respond that plaintiff has not raised a liberty interest under the standards of Paul v. Davis, 424 U.S. 693 (1976), and that his cause of action is simply one for defamation, which was properly dismissed for lack of subject matter jurisdiction.


Plaintiff's theory is that Sheriff Amis directed that plaintiff be fired and then made comments concerning him intending to prevent Richardson from working in law enforcement in the future. Plaintiff then argues that the possibility of future employment is a property interest protected under the Due Process Clause, citing Goss v. Lopez, 419 U.S. 565, 575 (1975). However, Goss does not support plaintiff's claim. In Goss, a group of high school students were given a 10-day suspension without a hearing. The Supreme Court held that this was a violation of their rights under the Due Process Clause because a public education is a property interest and because the suspension effects the students' reputation with other students as well as success in getting into college. It is the last aspect which affects future employment opportunities. However, the case does not stand for the blanket statement that future employment possibilities are a property interest. Plaintiff cites no other authority for this proposition.


The district court held that plaintiff's cause of action was more appropriately considered as one for defamation. Under Paul, 424 U.S. at 693, defamation alone is not a liberty interest sufficient to invoke the procedural protection of the Due Process Clause. Paul, 424 U.S. at 701-710. The Court did state that defamation in the course of termination of employment constituted an interest protected by the Due Process Clause. However, the Court seemed to be indicating that where a defamatory statement results in termination of employment, a liberty interest is affected. In the present case, plaintiff does not allege such facts, instead, the defamatory remarks were made after termination.


The district court correctly held that no constitutionally protected interest was raised by the plaintiff. The judgment is AFFIRMED.


The Honorable Albert Lee Stephens, Jr., Chief Judge Emeritus, Central District of California, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Richardson also appealed a few days later alleging that no discipline should have been imposed