FILED
NOT FOR PUBLICATION DEC 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIM DALE DAVIS, No. 11-55649
Petitioner-Appellant, D.C. No. 3:09-cv-02922-JLS
(POR)
v.
LARRY SMALL, Warden, MEMORANDUM *
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Janis Sammartino, District Judge, Presiding
Argued and Submitted October 6, 2014
Pasadena, California
Before: EBEL, ** KLEINFELD, and GRABER, Circuit Judges.
Jim Davis, a California state prisoner who is serving four consecutive
life-without-parole sentences, appeals the district court’s order granting
Larry Small’s (“the Warden”) motion to dismiss under Rule 12(b)(6). The
district court concluded that claim preclusion barred Davis’s 42 U.S.C. §
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior Judge for the United
States Court of Appeals for the Tenth Circuit, sitting by designation.
1983 action and alternatively, that Davis failed to state a plausible claim for
relief under the Due Process Clause. We review both conclusions de novo.
Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010); E. & J.
Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1287 (9th Cir. 1992).
Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM. 1
I. Background
In 2008, a sharp metal object was discovered inside a light fixture in
Davis’s prison cell. Following an administrative disciplinary proceeding,
Davis was convicted of possessing dangerous contraband. As a result,
Davis lost his paying prison job, his ability to transfer to facilities with
better programs, and some of his phone and yard privileges. 2
Davis appealed. After exhausting his administrative remedies, Davis
1
During oral argument, Davis suggested that title 15, section 3287(a)
of the California Code of Regulations and Prison Search Policy section
52050.15—which call on prison officials to inspect cells prior to occupancy
by new inmates—give inmates a private cause of action against the prison
for failing to conduct pre-occupancy cell inspections. We do not rule on
that issue because our other grounds for affirming make it unnecessary to
do so. We do note, however, that neither provision clearly expresses or
implies any intent to give inmates a private cause of action.
2
Davis also lost 120 days of good-time credit. However, because
Davis has no possibility of being released from prison due to his four
consecutive life-without-parole sentences, these forfeited good-time credits
are not relevant to our analysis, as Davis concedes.
2
filed a habeas action in state court, arguing that he was denied due process.
Both the California Superior Court and a division of the California Court of
Appeal issued reasoned decisions denying Davis’s habeas petition.
Subsequently, the California Supreme Court summarily denied Davis’s
petition for certiorari. Davis then filed this federal action.
II. Claim Preclusion
The district court properly concluded that Davis’s previous state
habeas action bars his current federal § 1983 action, applying California
law. See Gonzales v. Cal. Dep’t of Corr., 739 F.3d 1226, 1231–32 (9th Cir.
2014). California’s claim-preclusion doctrine bars (1) the same parties
from relitigating (2) an identical cause of action in a second suit if (3) the
first suit resulted in a final judgment on the merits. See Mycogen Corp. v.
Monsanto Co., 51 P.3d 297, 301–02 (Cal. 2002). Davis disputes only the
second requirement.
Under California’s claim-preclusion law, two actions are identical
when they involve the same “primary right”—i.e, when they involve “the
same injury to the plaintiff and the same wrong by the defendant.”
Gonzales, 739 F.3d at 1232–33 (internal quotation mark omitted). Here,
both actions involve the same alleged injury to Davis (the administrative
3
conviction and attendant loss of privileges) and the same alleged wrong by
the Warden (the deprivation of Davis’s liberty without due process). The
two actions are therefore identical. See Mycogen Corp., 51 P.3d at 307
(explaining that one injury gives rise to only one claim for relief even
“where there are multiple legal theories upon which recovery might be
predicated” (internal quotation marks omitted)).
III. Due Process
The district court also properly concluded that Davis failed to state a
plausible claim for relief under the Due Process Clause. To state a
plausible procedural-due-process claim, Davis must allege that (1) he was
deprived of a protected liberty or property interest, and (2) the procedures
followed by the state in depriving him of that interest were constitutionally
insufficient. See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per
curiam). Protected liberty interests may arise from either the Due Process
Clause itself or from state law. Sandin v. Conner, 515 U.S. 472, 483–84
(1995). A state law can create a protected liberty interest in avoiding
particular conditions of prison confinement if the challenged condition
“imposes atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Id. at 484.
4
Davis fails plausibly to allege that the Warden deprived him of a
protected liberty interest. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). First, the Due Process Clause itself does not give rise to a
protected liberty interest in a paying prison job, the possibility of favorable
transfers, or particular phone and yard privileges. Second, Davis cannot
establish the existence of a state-created liberty interest because he neither
identifies a state law governing the challenged conditions of confinement
nor demonstrates that these conditions impose an atypical and significant
hardship on him. See Sandin, 515 U.S. at 487 (explaining that punishment
in the prison setting is not atypical if it is “within the range of confinement
to be normally expected for one serving [the underlying sentence]”).
AFFIRMED.
5