United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Plaintiff is a state prisoner proceeding with counsel in this civil rights action. At the April 24, 2014 hearing on defendants' motion for judgment on the pleadings and plaintiff's motion to file a seventh amended and supplemental complaint, this court directed the parties to file briefing to address the effect of Gonzales v. California , 739 F.3d 1226 (9th Cir. 2014), on this case. That briefing has now been filed and after reviewing it, the undersigned issues the following order and findings and recommendations.
Plaintiff is serving a sentence of 25 years to life with the possibility of parole and is alleging that California's parole system violates his constitutional rights. At the April 24, 2014 hearing, the court granted plaintiff's motion to amend because defendants had filed a non-opposition. The seventh amended complaint ("SAC") is now before the court. It alleges one cause of action for violation of the ex post facto clause: that since the passage of Proposition 89 in 1988, adding Section 8(b) to Article V of the California Constitution, it has never been used by a governor to reverse a Board of Parole Hearings ("Board") decision "finding an inmate unsuitable for parole, but has been used exclusively by all governors to reverse decisions by the Board finding inmates suitable for parole." (ECF No. 97-1, ¶ 73.) The SAC alleges that plaintiff has been found suitable for parole twice, and both times the governor has reversed the Board's decisions, which has increased his punishment, which would have been less prior to passage of Proposition 89, and in fact "he would have been released immediately upon the setting of his term." Id. at ¶ 74.
Petitioner filed two state habeas actions which resulted in adverse, reasoned decisions by the state courts. The first decision, issued November 16, 2012, resolved four contentions in regard to the governor's reversal of the Board's decision to grant parole, including one pertinent here, that "the Governor's reversal violated the ex post facto clause of federal and state constitutions." ECF No. 106-1, Ex. A at 1. The second decision, filed January 22, 2014, addressed petitioner's contention that the Governor's reversal of the parole grant violated his due process rights because there is no evidence to support the Governor's decision that he currently poses an unreasonable risk to public safety." Id., Ex. B at 2. Those decisions will be discussed fully in the next section.
At the April 24th hearing, the court directed the parties to brief the applicability of Gonzales v. California Dep't of Corr. , 739 F.3d 1226 (9th Cir. 2014), and whether claim preclusion would bar this action based on a reasoned denial of plaintiff's previous state habeas action.
I. Claim Preclusion
Because Gonzales applied California's standards of res judicata (a state court, not a federal court had decided the underlying case), this court will also apply California law rather than federal law to issues of claim preclusion. See also Brodheim v. Cry , 584 F.3d 1262, 1268 (9th Cir. 2008) (reversing district court's use of federal claim preclusion standards and applying instead California's rules on res judicata to determine civil rights claim was precluded by prior state habeas petition).
Claim preclusion acts to prevent "successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit." New Hampshire v. Maine , 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001).
"California courts employ the primary rights' theory to determine what constitutes the same cause of action for claim preclusion purposes." Gonzales , 739 F.3d at 1232 (quoting Brodheim , 584 F.3d at 1268.) 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." Gonzales , 739 F.3d at 1232-1233 (quoting Crowley v. Katleman , 8 Cal.4th 666, 681, 34 Cal.Rptr.2d 386, 881 P.2d 1083 (1994)). Claims are considered identical under California law if they concern the same "primary right." City of Martinez v. Texaco Trading & Transp., Inc. , 353 F.3d 758, 762 (9th Cir. 2003), citing Acuna v. Regents of Univ. of Cal. , 56 Cal.App.4th 639, 65 Cal.Rptr.2d 388, 394 (1997). In the Ninth Circuit's recent decision applying claim preclusion in the section 1983 context where a previously decided state habeas action was based on the same cause of action, the court described application of the primary rights theory:
"[I]f 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." Eichman v. Fotomat Corp. , 147 Cal.App.3d 1170, 197 Cal.Rptr. 612, 614 (1983). "If the same primary right is involved in two actions, judgment in the first bars consideration not only of all matters actually raised in the first suit but also all matters which could have been raised." Id . (emphasis added). "[U]nder the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right." Boeken v. Philip Morris USA, Inc. , 48 Cal.4th 788, 108 Cal.Rptr.3d 806, 230 P.3d 342, 348 (2010).
Gonzales , 739 F.3d at 1232-1233.
Gonzales had previously filed a state habeas petition challenging his placement in a secured housing unit based on his gang membership, and that petition had been denied. He then filed a civil rights action alleging retaliation and challenging the same actions by the same prison officials, pursuant to the First and Eighth Amendments, and the Equal Protection Clause. The Ninth Circuit held that because the habeas petition and the § 1983 action sought to vindicate the same primary right, petitioner's protected liberty interest in being free from SHU placement, and concerned the same primary duty by the prison to refrain from depriving Gonzales of his liberty without due process, California's claim preclusion barred the federal action. Id. at 1233-34. The court definitively stated, "Gonzales challenged the fact of his ...