Ernest Cox, Jr. v. Scott Kernan

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERNEST LEE COX, Jr., No. 21-17131

Plaintiff-Appellant, D.C. No. 2:19-cv-01637-JAM-DB v.

SCOTT KERNAN, Secretary of CDCR; JOE MEMORANDUM* A. LIZARRAGA, Warden; L. OLIVAS; R. GRIMES; M. ALLEN,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted October 20, 2023**

Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.

Ernest Cox appeals pro se from the district court’s dismissal of his Second

Amended Complaint. Because the facts are known to the parties, we repeat them

only as necessary to explain our decision.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Federal courts accord the same preclusive effect to state court judgments as

the courts in the state rendering the judgment would. Furnace v. Giurbino, 838 F.3d

1019, 1023 (9th Cir. 2016) (citing 28 U.S.C. § 1738). Under California law, claim

preclusion bars a second suit when the first suit involved: (1) the same cause of

action; (2) the same parties; and (3) a final judgment on the merits. DKN Holdings

LLC v. Faerber, 61 Cal. 4th 813, 825 (2015).

Cox’s current complaint is part of the same cause of action as his habeas

petitions because he alleges the same harm to his due process rights, arising from

the same purported violations in the RVR hearing. See Boeken v. Philip Morris USA,

Inc., 48 Cal. 4th 788, 798 (2010) (describing California’s “primary rights theory”).

Allen is in privity with Kernan, the respondent in the habeas petitions, because they

are agents of the same government. Sunshine Anthracite Coal Co. v. Adkins, 310

U.S. 381, 402-03 (1940) (“There is privity between officers of the same government

. . . .”). Finally, the state courts’ denials of Cox’s habeas petitions under the “some

evidence” standard were reasoned decisions on the merits. Cf. Gonzalez v. Dep’t of

Corr., 739 F.3d 1226, 1234 (9th Cir. 2014).

The three elements of claim preclusion under California law are satisfied. Cox

was barred from bringing the second action. We do not consider the other arguments

presented by Cox.

AFFIRMED. Allen’s motion requesting this court to take judicial notice of

2 two district court documents is GRANTED. We construe Cox’s filing (Dkt. No.

31) as a motion to supplement the record. The motion to supplement the record is

DENIED.