David Portillo v. James Gomez, Dir. Dept. Of Corr. , 85 F.3d 637 ( 1996 )

85 F.3d 637

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
David PORTILLO, Petitioner-Appellant,
v.
James GOMEZ, Dir. Dept. of Corr., Respondent-Appellee.

No. 95-17248.

United States Court of Appeals, Ninth Circuit.

Submitted April 30, 1996.*
Decided May 6, 1996.

Before: BROWNING, REINHARDT, and FERNANDEZ, Circuit Judges.

MEMORANDUM**

California state prisoner David Portillo appeals pro se the district court's 28 U.S.C. § 1915(d) dismissal of his 42 U.S.C. § 1983 action alleging that he was improperly placed in administrative segregation for an indefinite term because he was determined to be an associate of the Mexican mafia. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, Denton v. Hernandez, 504 U.S. 25, 33 (1992), and we affirm in part, vacate in part and remand.1

The district court dismissed Portillo's claims pursuant to section 1915(d) because a prior state court judgment was rendered on allegedly similar claims. Our review of the record, however, only discloses that a state court judgment was rendered on Portillo's claim that he was improperly designated a gang member. Because we cannot determine whether all of Portillo's claims should be precluded, we vacate and remand this action for further proceedings.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

Appellant's motion for appointment of counsel is denied