Furnace v. Giurbino

838 F.3d 1019

Edward Terran Furnace, Plaintiff–Appellant,

v.G. Giurbino; K. Berkler; R. S. Marquez; E. W. Fischer; M. Valdez, Institutional Gang Investigator at Salinas Valley State Prison; R. L. Martinez, Lt., Institutional Gang Investigator at Salinas Valley State Prison, Defendants-Appellees.

No. 13–17620

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2015, San Francisco, California

Filed September 29, 2016

Rajeev Muttreja (argued), Jones Day New York, New York; Glen Nager, Jones Day, Washington, D.C.; for Plaintiff–Appellant.

Jose A. Zelidon–Zepeda (argued), Deputy Attorney General; Thomas S. Patterson, Supervising Deputy Attorney General; Jonathan L. Wolff, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, San Francisco, California; for Defendant–Appellee.

Before: Alex Kozinski, Jay S. Bybee, and Morgan Christen, Circuit Judges.

OPINION

BYBEE, Circuit Judge:

Edward Furnace is a prisoner at Salinas Valley State Prison. Furnace alleges the Appellees wrongfully classified him as a gang member in retaliation for filing a § 1983 suit against the defendants' colleagues. After Furnace filed a habeas petition, California courts rejected his claims on the ground that there was sufficient evidence to support the gang validation. Furnace then filed the present action under 42 U.S.C. § 1983 for violation of his Fourteenth Amendment rights, based on violation of the First Amendment and the Equal Protection Clause. The district court dismissed his suit on claim preclusion grounds. We affirm.

I. FACTS AND PROCEEDINGS BELOW

In 2006 Furnace filed a § 1983 suit against eleven Salinas Valley Prison officials (none of whom is involved in this suit) for allegedly denying him visitation rights and other privileges. These defendants filed a motion to dismiss in 2008, which was denied. Furnace alleges that shortly after that, R.L. Martinez and M. Valdez, gang investigators at Salinas Valley, were “ordered to validate [Furnace] as a prison gang member to intimidate and retaliate against him” for filing the earlier suit. The decision to classify Furnace as a member of the Black Guerilla Family (BGF) was based on prison officials finding in Furnace's cell the contact information of a validated BGF gang member as well as books, a CD, and a newspaper article relating to BGF.

Furnace filed an internal administrative appeal, claiming that the classification lacked evidence, was retaliatory, and was racially motivated. While the appeal was pending, K. Berkler, R.S. Marquez, and E.W. Fischer, also gang experts at Salinas Valley, again classified Furnace as a gang member. His internal administrative appeals were denied, and he was placed in the prison's secured housing unit (SHU).

Furnace then filed a pro se habeas petition in California Superior Court. He named D. Adams (the prison warden), R.L. Martinez, Valdez, Berkler, R.S. Marquez, and Fischer as respondents (and others not involved in this appeal). He alleged that his gang classification and placement in secured housing lacked sufficient evidence, that it was done to “intimidate and retaliate against” Furnace for filing the earlier suit, and that it violated his federal constitutional rights to free speech, equal protection of the law, and due process. Furnace sought to be removed from secured housing and to have his record cleared of any allegation that he was gang affiliated.

The Superior Court denied Furnace's petition on the ground that there was sufficient evidence to support the gang validation, without directly addressing whether the classification was retaliatory or racially discriminatory. Furnace filed another habeas petition in the California Court of Appeal, making the same allegations. The court denied his petition, holding, first, that there was sufficient evidence to support the validation and, second, that the validation did not violate his First Amendment rights. The court denied rehearing, and the California Supreme Court summarily denied review.

In February 2012, Furnace filed this § 1983 suit in federal district court. Furnace named as defendants Berkler, Marquez, Fischer, R.L. Martinez, and Valdez, plus G. Giurbino (collectively, “Appellees”), who allegedly supervised the other Appellees. Furnace's complaint alleged that his classification was illegal and retaliatory in violation of his First Amendment rights, and a violation of his right to equal protection and due process under the Fourteenth Amendment. Furnace asked for declaratory relief, money damages, as well as injunctive relief “to release him from the security housing unit” and to “expunge his prison file” of any allegation that he is associated with BGF.

The district court granted the Appellees' motion to dismiss on the ground that Furnace's suit was barred by claim preclusion. The court concluded that “both the state action and the instant one arise out of the same incident and involve the same actors allegedly performing the same act of initiating gang validation procedures and ultimately validating [Furnace] as an active gang member without proper procedural protections.” Because Furnace sought “to vindicate the same primary right in federal court as he [had] previously in state court,” his claim was precluded. Furnace timely appealed. On appeal, Appellees ask us to assess a strike against Furnace under the Prison Litigation Reform Act for having filed a duplicative suit.¹

II. ANALYSIS

This appeal raises two main issues. First, Furnace contends that the district court erred in dismissing his First Amendment and equal protection claims under California claim preclusion principles. Second, the Appellees ask us to assess a “strike” against Furnace under the Prison Litigation Reform Act. We affirm the district court and decline to assess a strike against Furnace.

A. Claim Preclusion

Under the Full Faith and Credit Statute, 28 U.S.C. § 1738, federal courts must give the same preclusive effect to state court judgments, including “reasoned” habeas judgments, as the rendering state court would. Gonzales v. Cal. Dep't of Corr. , 739 F.3d 1226, 1230–31 (9th Cir. 2014) (citing Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) ). Accordingly, California claim preclusion law governs whether, in light of his earlier state habeas petition, Furnace's § 1983 claims may be brought in federal court.

In California, “[c]laim preclusion arises if a second suit involves: (1) the same cause of action (2) between the same parties [or parties in privity with them] (3) after a final judgment on the merits in the first suit.” DKN Holdings LLC v. Faerber , 61 Cal.4th 813, 189 Cal.Rptr.3d 809, 352 P.3d 378, 386 (2015) (citing Mycogen Corp. v. Monsanto Co. , 28 Cal.4th 888, 123 Cal.Rptr.2d 432, 51 P.3d 297, 301 (2002) ). Furnace makes two arguments in response to the Defendants' claim preclusion defense. First, he argues that the “primary rights” that were violated here are distinct from the primary right he sought to vindicate in his habeas action in California state courts. Second, he argues that the identity of the parties is different between the two suits. We address each argument in turn.

1. Primary Rights

California courts, unlike federal courts, do not determine whether two suits involve the same cause of action by applying the “same transaction or occurrence” or “common nucleus of operative facts” test. Instead, California courts will hold that two suits involve the same cause of action when they involve the same “primary right.” Brodheim v. Cry , 584 F.3d 1262, 1268 (9th Cir. 2009). Under this theory “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.” Mycogen , 123 Cal.Rptr.2d 432, 51 P.3d at 306. “The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action.” Id. Thus, in California, “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.” San Diego Police Officers' Ass'n v. San Diego City Emps. Ret. Sys. , 568 F.3d 725, 734 (9th Cir. 2009) (quoting Eichman v. Fotomat Corp. , 147 Cal.App.3d 1170, 197 Cal.Rptr. 612, 614 (1983) ). “The critical focus of primary rights analysis is the harm suffered.” Brodheim , 584 F.3d at 1268 (citations and internal quotation marks omitted). California's primary rights theory can be complicated, and we have cautioned against wielding the “primary right brush ... too carelessly” and noted the possibility that “different primary rights may be violated by the same wrongful conduct” under certain circumstances. San Diego Police Officers' Ass'n , 568 F.3d at 734 (internal quotation marks omitted). But in this case, we have circuit precedent on point that requires us to affirm.

The facts of Gonzales v. California Department of Corrections will sound familiar. There, Gonzales was validated as a gang member and placed in the SHU. 739 F.3d at 1229. After exhausting his administrative remedies, and a series of state habeas proceedings, he filed a § 1983 suit alleging that “(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 ...; [and] (4) his validation ... violated his due process rights.” Id. The district court dismissed the suit on claim preclusion grounds. Id. at 1230.

On appeal, Gonzales argued “that his retaliation, First Amendment, and Equal Protection claims [were] not precluded,” because those claims arose under “a...