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July 29, 1992


The opinion of the court was delivered by: EDWARD A. INFANTE

 I. Background

 Plaintiff Douglas Miller ("Miller") was employed as a detention officer by the Santa Cruz County Sheriff's Department from December 1980 until September 24, 1987. During the course of his employment, four disciplinary actions were taken against him. The last action involved Miller's alleged knowing failure to report a salary overpayment and resulted in his dismissal.

 Under the Santa Cruz County Civil Service Ordinance Code a discharged employee has the right to appeal his termination to the County Civil Service Commission ("the Commission"). Miller exercised this right, and, after an evidentiary hearing on January 27, 1988, the Commission upheld the dismissal. Miller did not seek judicial review of the Commission's determination.

 Miller filed this action in 1989, alleging violations of his civil rights pursuant to 42 U.S.C. Section 1983, and naming Santa Cruz County, Santa Cruz County Sheriff Al Noren, and Officer Terry Moore as defendants. Specifically, Miller alleges that defendants violated his rights to equal protection of the laws, substantive due process, and procedural due process.

 II. Motion Before the Court

 All defendants seek summary judgment on the theory that this action is barred by the doctrines of res judicata/collateral estoppel. Alternatively, Sheriff Noren seeks summary judgment, in his favor alone, on the theory that the undisputed fasts show that he is entitled to the defense of qualified immunity. For the reasons set forth below, defendants' Motion for Summary Judgment is hereby GRANTED. *fn1"

 III. Summary Judgment Standard

 Rule 56(c), F.R.Civ.P., provides that upon motion, summary judgment shall be rendered:

 if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to material fact and that the moving party is entitled to a judgment as a matter of law."

 Once a proper motion is made, entry of summary judgment is mandated where the responding party fails to make a showing sufficient to establish the existence of an element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The test used to determine whether summary judgment should be granted "mirrors" that applied to a motion for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). "Where the record taken as whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

 Summary judgment is especially appropriate where there is no genuine issue of material fact and the only dispute is as to pure legal questions. Smith v. Califano, 597 F.2d 152 (9th Cir. 1979). In this instance, defendants move for summary judgment based on res judicata/collateral estoppel grounds which, if applicable, is a proper grounds for summary judgment. Eilrich v. Remas, 839 F.2d 630 (9th Cir. 1988). Alternatively, defendant Noren moves for summary judgment on the grounds that he is entitled to qualified immunity, which may also provide a proper basis for summary judgment. Thorsted v. Kelly, 585 F.2d 571, 575 (10th Cir. 1988).

 IV. Discussion

 "When a state agency 'acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' [citation omitted] federal courts must give the agency's fact finding the same preclusive effect to which it would be entitled in the state's courts." University of Tennessee v. Elliott, 478 U.S. 788, 796-799, 106 S. Ct. 3220, 92 L. Ed. 2d (1986). This is so, even though the proceedings resolved disputed issues of fact which are later pled to allege a civil rights violation. Id. Relying on Swartzendruber v. City of San Diego, 3 Cal. App. 4th 896, 908, 5 Cal. Rptr. 2d 64 (Cal. App. 4 Dist. 1992), defendants argue that since Miller failed to seek writ review of the Commission's determination in state court, pursuant to Cal. Civ. ...

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