FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD MARENTES TORRES, No. 11-18054
Plaintiff - Appellant, D. C. No. 3:09-cv-05929-CRB
v.
M. CATE, et al., MEMORANDUM*
Defendants - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Richard Marentes Torres, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due
process violations arising from his gang validation and continued confinement in
administrative segregation. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo the district court’s dismissal under Federal Rule of Civil Procedure
12(b)(6), Watson v. Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006), and we affirm.
The district court properly dismissed Torres’ due process claims relating to
his initial validation and placement in administrative segregation because these
claims are barred by the doctrines of res judicata and collateral estoppel. See
Sanchez v. City of Santa Ana, 936 F.2d 1027, 1035-36 (9th Cir. 1990) (plaintiff is
precluded from litigating § 1983 due process claims based upon the same primary
rights as those previously adjudicated in a California state court action).
The district court properly dismissed Torres’ due process claims relating to
his continued confinement in administrative segregation because Torres’ Third
Amended Complaint demonstrates that the periodic reviews of his segregation
were sufficient for due process. See Toussaint v. McCarthy, 801 F.2d 1080, 1101
(9th Cir. 1986) (while periodic review of inmate’s segregated confinement is
necessary, prison officials are not required to allow additional evidence or
statements), abrogated in part on other grounds by Sandin v. Conner, 515 U.S.
472 (1995).
The district court did not abuse its discretion in denying Torres’ motions for
appointment of counsel and in staying discovery pending resolution of defendants’
motions to dismiss Torres’ amended complaints. See Terrell v. Brewer, 935 F.2d
2 11-18054
1015, 1017 (9th Cir. 1991) (requiring “exceptional circumstances” for appointment
of counsel and reviewing decision for abuse of discretion); Wood v. McEwen, 644
F.2d 797, 801-02 (9th Cir. 1981) (per curiam) (no abuse of discretion where
district court stayed discovery to determine whether plaintiff could state a claim
and plaintiff did not allege any prejudice from the stay).
AFFIRMED.
3 11-18054