Jose Bonilla v. Michael Smelosky , 594 F. App'x 933 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE BONILLA, No. 13-57139
Plaintiff - Appellant, D.C. No. 3:11-cv-01274-GPC-
WMC
v.
MICHAEL A. SMELOSKY, Former MEMORANDUM*
Warden at CEN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted February 17, 2015**
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
Jose Bonilla, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due process and
equal protection violations in connection with gang validation proceedings. 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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo. San Remo Hotel
L.P. v. San Francisco City & County, 364 F.3d 1088, 1094 (9th Cir. 2004)
(dismissal based on issue preclusion); Lee v. City of Los Angeles, 250 F.3d 668,
679 (9th Cir. 2001) (dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim). We affirm.
The district court properly dismissed Bonilla’s due process claims because
the issue of whether the evidence used to validate Bonilla’s gang association was
insufficient or unreliable was actually litigated and decided as a critical part of the
judgment in Bonilla’s prior state court action. See White v. City of Pasadena, 671
F.3d 918, 927 (9th Cir. 2012) (elements of issue preclusion under California law);
Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1346-47 (9th Cir. 1981) (“[B]ecause
of the nature of a state habeas proceeding, a decision actually rendered should
preclude an identical issue from being relitigated in a subsequent § 1983 action if
the state habeas court afforded a full and fair opportunity for the issue to be heard
and determined under federal standards.”). We reject Bonilla’s contention that he
did not receive a full and fair opportunity to litigate in state court the issues raised
by his due process claims, and his arguments regarding the statements in
defendants’ discovery responses.
The district court properly dismissed Bonilla’s equal protection claim
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because he failed to allege facts sufficient to show intentional discrimination based
on race or national origin. See Lee, 250 F.3d at 686 (a § 1983 equal protection
claim requires showing “that the defendants acted with an intent or purpose to
discriminate against the plaintiff based upon membership in a protected class.”).
Because Bonilla did not present any discernible arguments in his opening
brief regarding the denial of his motion for reconsideration under Federal Rule of
Civil Procedure 60(b), we deem the issue waived. See Nev. Dep’t of Corr. v.
Greene, 648 F.3d 1014, 1020 (9th Cir. 2011) (pro se appellant waived issues not
supported by argument in brief).
AFFIRMED.
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