Gregory Lewis; Leith Jasinowski-Kahl v. Ronald J. English, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY LEWIS; LEITH
JASINOWSKI-KAHL,
Plaintiffs-Appellants,
v.
RONALD J. ENGLISH, individually and in
his official capacity as the General Counsel
of Seattle Public School District No. 1;
LARRY DORSEY, individually and in his
official capacity as the Public Safety
Director of Seattle Public School District
No. 1; SEATTLE PUBLIC SCHOOL
DISTRICT NO. 1; DOES 1-250,
Defendants-Appellees.
No. 16-35534
D.C. No. 2:15-cv-00345-TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted August 27, 2018
Seattle, Washington
Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Gregory Lewis (“Lewis”) and Leith Jasinowski-Kahl (“Kahl”) appeal the
summary judgment entered by the district court on their constitutional and state
law tort claims against the Seattle School District (the “District”) and several of its
officers. Because the parties are familiar with the facts, we do not recite them in
full here. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
In a previous state court action, Lewis and Kahl defeated, on First
Amendment grounds, the District’s decision banning them from entering or
attending meetings on “all District property.” The state court enjoined the ban.
Months later, Lewis and Kahl sued for damages in federal court based on the
same events and claims as the state court action. The district court granted
summary judgment in favor of the District, in part based on res judicata, and
denied a request for further discovery.
We review de novo the district court’s decision to grant summary judgment.
Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). We view the
evidence in the light most favorable to the non-movant, and we may affirm
summary judgment on any ground supported by the record. Campidoglio LLC v.
Wells Fargo & Co., 870 F.3d 963, 973 (9th Cir. 2017). We review for abuse of
discretion the district court’s refusal to continue summary judgment proceedings
pending further discovery. Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1047
(9th Cir. 2015).

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We conclude that res judicata bars all of the claims. As a matter of full faith
and credit, we apply Washington claim preclusion law to the state court’s
judgment. Furnace v. Giurbino, 838 F.3d 1019, 1023 (9th Cir. 2016). The state
court’s order satisfies the threshold requirement of a “final judgment on the merits
in the prior suit.” Hisle v. Todd Pac. Shipyards Corp., 93 P.3d 108, 114
(Wash. 2004).
Claim preclusion bars the federal action because it overlaps with the state
court action in the following respects: “(1) subject matter; (2) cause of action; (3)
persons and parties; and (4) the quality of the persons for or against whom the
claim is made.” Rains v. State, 674 P.2d 165, 168 (Wash. 1983). For good reason,
Lewis and Kahl hardly dispute that the first, third, and fourth elements are present.
So we turn to the second element of claim preclusion—same “cause of action.”
Rather than mechanistically comparing the asserted claims, Washington courts
consider the following factors to determine whether two causes of action are the
same for purposes of res judicata:
(1) [W]hether rights or interests established in the prior judgment would
be destroyed or impaired by prosecution of the second action; (2)
whether substantially the same evidence is presented in the two actions;
(3) whether the two suits involve infringement of the same right; and
(4) whether the two suits arise out of the same transactional nucleus of
facts.
Rains, 674 P.2d at 168 (alteration in original) (quoting Constantini v. Trans World
Airlines, 681 F.2d 1199, 1201–02 (9th Cir. 1982)).

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So understood, the “causes of action” are identical. The first factor is
irrelevant where, as here, a prevailing party seeks to leverage its victory in a
subsequent action (as opposed to a losing party seeking to undermine its defeat).
See Feminist Women’s Health Ctr. v. Codispoti, 63 F.3d 863, 868 (9th Cir. 1995)
(applying Washington law). The other three factors suggest uniformity.
Comparing Lewis and Kahl’s state court trial brief with their complaint in federal
court shows an overwhelming overlap of evidence, rights, and transactional
nucleus of facts.
Finally, we reject Lewis and Kahl’s argument that assorted jurisdictional
barriers precluded them from pursuing their damages claims in state court. State
courts have concurrent jurisdiction to hear 42 U.S.C. § 1983 actions. Robinson v.
City of Seattle, 830 P.2d 318, 332 (Wash. 1992). Nothing about
RCW 28A.645.010, which authorized Lewis and Kahl’s challenge to the District’s
decision, precluded them from also asserting claims for damages. See, e.g., Clark
v. Cent. Kitsap Sch. Dist. No. 401, 686 P.2d 514, 515 (Wash. Ct. App. 1984)
(plaintiff in superior court had “appealed the Board’s order of dismissal” pursuant
to RCW 28A.625.010’s identical predecessor “and also sought damages for breach
of contract”). Nor did Washington’s 60-day notice-of-claim waiting period,
RCW 4.96.020(4), preclude Lewis and Kahl from asserting claims for damages.
“[S]tate notice of claim provisions are inapplicable to § 1983 actions,” Boston v.

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Kitsap Cty., 852 F.3d 1182, 1185 (9th Cir. 2017), and the seven months between
filing and final judgment provided Lewis and Kahl ample opportunity to include
the state law claims, see Wash. Super. Ct. Civ. R. 15 (governing amendment and
relation back).
The federal action overlaps with the state action in the four relevant respects,
so res judicata bars the federal action. The district court acted within its discretion
in denying additional discovery, which was unrelated to the res judicata issue.
AFFIRMED.

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