Ursula Holcombe v. DAVID HOSMER; RICHARD D.C. No. KIRKLAND,  CV-03-00587-HDM

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 URSULA HOLCOMBE,
Plaintiff-Appellant,
v. No. 05-15151
DAVID HOSMER; RICHARD D.C. No.
KIRKLAND,  CV-03-00587-HDM
Defendants-Appellees, OPINION
and
DALE LIEBHERR,
Defendant. 
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted January 11, 2007*
San Francisco, California
Filed February 23, 2007
Before: A. Wallace Tashima and Consuelo M. Callahan,
Circuit Judges, and George P. Schiavelli,** District Judge.
Opinion by Judge Callahan
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable George P. Schiavelli, United States District Judge for
the Central District of California, sitting by designation.
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COUNSEL
Jeffery A. Dickerson, Reno, Nevada, for appellant Ursula
Holcombe.
Brian Sandoval, Attorney General, Carson City, Nevada;
Michael Somps, Deputy Attorney General, Carson City,
Nevada, for appellees David Hosmer and Richard Kirkland.
OPINION
CALLAHAN, Circuit Judge:
Appellant Ursula Holcombe (“Holcombe”) alleged under
42 U.S.C. § 1983 that Appellees David Hosmer and Richard
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Kirkland (collectively “defendants”) dismissed her from the
Nevada Department of Public Safety (“Highway Patrol”) in
retaliation for associating with her husband in violation of her
First Amendment rights. The district court granted the defen-
dants’ Rule 12(b)(6) motion, concluding that Holcombe’s
claims were precluded by the state court’s affirmance of an
administrative decision upholding her termination. Holcombe
appeals, contending that her First Amendment claims were
not adjudicated in the state court proceedings, therefore, they
were not actually litigated and are not precluded. We affirm
the dismissal of Holcombe’s case.
FACTS AND PROCEDURAL HISTORY
The Highway Patrol terminated Holcombe on July 31,
2002, after charging her with forging two subpoenas related
to her husband’s administrative appeal of his termination by
the Nevada Department of Corrections. Holcombe appealed
her termination, and received an administrative hearing where
she was represented by counsel, testified, presented evidence,
cross-examined witnesses, and successfully excluded some
pieces of evidence. During that hearing, Holcombe specifi-
cally discussed her husband’s termination, his appeal, and her
efforts to help him appeal his termination. The hearing officer
(“ALJ”) issued his findings and decision finding just cause for
Holcombe’s termination. Holcombe appealed to the Second
Judicial District Court for the State of Nevada (“state court”),
and the state court affirmed the ALJ’s decision.
On January 28, 2004, after the state court’s decision
became final, Holcombe filed an amended complaint in fed-
eral district court adding the two defendants in this case. The
defendants filed a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), arguing issue and claim preclusion,
as well as failure to state a claim upon which relief could be
granted.1
1On March 29, 2004, Holcombe filed an opposition and dismissed a
defendant who is not a party to this appeal.
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The district court granted the motion to dismiss, concluding
that the state court’s final judgment precluded Holcombe’s
§ 1983 claims. Applying Nevada law, the district court cited
Nevada Revised Statute § 233B.135(3)(a), which authorizes a
state district court to remand or affirm the final decision of a
state administrative agency if that decision was in violation of
constitutional provisions. The district court concluded that,
because Holcombe could have raised her First Amendment
claim when she appealed the ALJ’s decision in state court, her
§ 1983 claims were precluded under the principles of claim
preclusion.
STANDARD OF REVIEW
The court reviews de novo a district court’s dismissal of a
plaintiff’s complaint pursuant to a Rule 12(b)(6) motion. See
Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th Cir.
2002). All facts alleged in the complaint are presumed to be
true for the purposes of analyzing a Rule 12(b)(6) decision.
Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir.
1988). A district court’s ruling on claim preclusion is also
reviewed de novo. See Robi v. Five Platters, Inc., 838 F.2d
318, 321 (9th Cir. 1988).
DISCUSSION
I. Claim preclusion bars litigation of claims that were or
could have been raised in a prior action, including claims
under § 1983.
[1] “Under res judicata, a final judgment on the merits of
an action precludes the parties or their privies from relitigat-
ing issues that were or could have been raised in that action.”
Allen v. McCurry, 449 U.S. 90, 93 (1980). “Claim preclusion
is a broad doctrine that bars bringing claims that were previ-
ously litigated as well as some claims that were never before
adjudicated.” Clements v. Airport Auth. of Washoe County, 69
F.3d 321, 327 (9th Cir. 1995).
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[2] Claims under 42 U.S.C. § 1983 are subject to claim pre-
clusion even if the litigants did not actually litigate the federal
claim in state court. See Migra v. Warren City School Dist.
Bd. of Educ., 465 U.S. 75, 83-85 (1984) (holding that petition-
er’s § 1983 claim is subject to claim preclusion); Allen, 449
U.S. at 97-99 (discussing history of § 1983 and rejecting argu-
ment that Congress exempted § 1983 claims from preclusion
by state court judgments). In Migra, the Supreme Court spe-
cifically rejected the argument that a § 1983 claim that could
have been, but was not raised in a state-court proceeding can
avoid the preclusive effect of res judicata. Migra, 465 U.S. at
84-85. Therefore, Holcombe’s § 1983 claim is not exempt
from preclusion under the doctrine of claim preclusion.
II. Under Nevada law, Holcombe’s § 1983 claims are
precluded by the state court judgment.
A. Federal courts must apply Nevada law concerning
claim preclusion to a prior Nevada state court
judgment.
[3] “It is now settled that a federal court must give to a
state-court judgment the same preclusive effect as would be
given that judgment under the law of the State in which the
judgment was rendered” under the Constitution’s Full Faith
and Credit Clause and under 28 U.S.C. § 1738. Id. at 81.
Accordingly, the court applies Nevada law concerning claim
preclusion to the Nevada judgment.
[4] Under Nevada law, there are three elements to claim
preclusion as stated in Bennett v. FDIC:
Was the issue decided in the prior adjudication iden-
tical with the one presented in the action in question?
Was there a final judgment on the merits? Was the
party against whom the plea is asserted a party or in
privity with a party to the prior adjudication?
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652 P.2d 1178, 1180 (Nev. 1982).2 For the purposes of claim
preclusion, the first element includes claims that could have
been litigated in the first action, even if they were not actually
litigated. See York v. York, 664 P.2d 967, 968 (Nev. 1983)
(holding that for purposes of claim preclusion, the first ele-
ment meant whether the claim could have been litigated in the
first action). In Tarkanian, the Nevada Supreme Court differ-
entiated issue preclusion (or collateral estoppel) from claim
preclusion, stating:
Claim preclusion, or merger and bar, is triggered
when a judgment is entered. A valid and final judg-
ment on a claim precludes a second action on that
claim or any part of it. The preclusive effect is gen-
erally as to a subsequent action on the same claim or
part thereof, not as to subsequent proceedings in the
same litigation. The claim of a prevailing plaintiff is
merged into the judgment. If the defendant prevails,
the plaintiff is thereafter barred from subsequent
suits on the same claim. The modern view is that
claim preclusion embraces all grounds of recovery
that were asserted in a suit, as well as those that
could have been asserted, and thus has a broader
reach than collateral estoppel.
Univ. of Nev. v. Tarkanian, 879 P.2d 1180, 1191-92 (Nev.
1994) (citations omitted). Therefore, under Nevada state law,
claim preclusion acts to bar both claims that could have been
asserted in the prior action and alternative grounds of recov-
ery. See Rosenthal v. Nevada, 514 F. Supp. 907, 912 (D. Nev.
1981) (finding plaintiff’s § 1983 claim for damages precluded
by prior administrative adjudication judicially reviewed by
the Nevada state courts).
2Holcombe does not dispute that the state court proceedings are final,
or that she is in privity with the Highway Patrol and its employees.
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B. Applying Nevada law, the state court proceedings
preclude prosecution of Holcombe’s § 1983 claims.
[5] For the purposes of defining a “claim” under Nevada
law, “[t]he authorities agree that when the same evidence sup-
ports both the present and the former cause of action, the two
causes of action are identical.” Round Hill Gen. Improvement
Dist. v. B-Neva, Inc., 606 P.2d 176, 178 (Nev. 1980) (quoting
Silverman v. Silverman, 283 P. 593, 598 (Nev. 1930) (Cole-
man, J., concurring)). Therefore, a “claim” under Nevada law
encompasses all claims that arise out of a single set of facts.
See Firsching v. Ferrara, 578 P.2d 321, 322 (Nev. 1978)
(“the facts essential to the maintenance of both suits are iden-
tical; therefore, both suits involve but one cause of action and,
accordingly, the final judgment on the merits in the formal
suit bars subsequent litigation involving any matter which was
or might, with propriety, have been litigated therein.”).
[6] Applying Nevada law concerning claim preclusion to
this case, the facts supporting Holcombe’s § 1983 claim and
her challenges to her termination are the same. The amended
complaint alleges facts concerning the investigation into the
altered subpoenas, and the Highway Patrol’s decision to ter-
minate Holcombe over the altered subpoenas. Specifically,
Holcombe claimed that the defendants violated her First
Amendment rights concerning her “freedom to associate with
Roger Holcombe” and assist in Mr. Holcombe’s efforts to
exercise his rights regarding his termination. Holcombe testi-
fied about these facts at her administrative hearing. Therefore,
Holcombe’s claim that the defendants fired her in retaliation
for exercising her First Amendment rights is the same as her
claim that she was wrongfully terminated.
C. Holcombe could have raised her First Amendment
retaliation claim under Nevada Revised Statute
§ 233B.135(3)(a).
[7] Although Holcombe argues that she was not able to
assert First Amendment retaliation at her administration hear-
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ing, that is not the test for a claim under Nevada law. Still, the
district court concluded that Holcombe could have raised her
First Amendment claims upon judicial review under Nevada
Revised Statute § 233B.135(3)(a). Nevada Revised Statute
§ 233B.135(3)(a) states:
The court shall not substitute its judgment for that of
the agency as to the weight of the evidence on a
question of fact. The court may remand or affirm the
final decision or set it aside in whole or in part if
substantial rights of the petitioner have been preju-
diced because the final decision of the agency is: (a)
in violation of constitutional or statutory provisions.
Although there is no Nevada authority regarding the assertion
of constitutional retaliation claims on judicial review of
administrative personnel hearings, the cases interpreting
Nevada Revised Statute § 233B.135(3) and judicial review of
other administrative proceedings suggest that Holcombe could
have raised her First Amendment claim on judicial review.
In Field v. Nevada, the Nevada Supreme Court reversed an
administrative decision because the agency violated statutory
provisions concerning the calibration of alcohol breath tests to
the percentage of alcohol in a person’s blood. 893 P.2d 380,
381-383 (Nev. 1995). Based on the statutory violations, the
Nevada Supreme Court concluded that the evidence of the
appellant’s breath tests that were calibrated to the amount of
alcohol in a person’s breath were inadmissible. Id. at 383. As
a result, the state failed to carry its burden of showing that the
appellant submitted a test showing that her blood alcohol con-
tent was higher than .10, and the Nevada Supreme Court
directed the lower court to vacate the administrative ruling.
Id. In Field, the Nevada Supreme Court reached the merits of
the appellant’s constitutional or statutory defenses to the
administrative action. Id. Therefore, it appears that Holcombe
could have raised her First Amendment rights as a defense to
her termination, arguing that her termination was pretextual.
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[8] Holcombe argues that the Nevada Supreme Court’s
decision in Bivens Constr. v. State Contractors Bd., 809 P.2d
1268 (Nev. 1991), narrows the scope of judicial review to
whether or not the hearing complied with due process. A
closer reading of Bivens shows that it actually supports the
idea that judicial review in Nevada encompasses constitu-
tional and statutory rights. In Bivens, the appellant failed to
object at the hearing to the Board cutting off cross-
examination of a key witness. Id. at 1270. On appeal, the
appellant raised a due process claim and an unlawful proce-
dure claim under Nevada Revised Statute § 233B.135(3)(c).
Id. The Nevada Supreme Court reversed the Board’s decision
on both grounds. Id. Bivens and Field establish that the
Nevada state courts may reverse administrative decisions if
they violate constitutional or statutory rights. Therefore, the
district court correctly interpreted Nevada Revised Statute
§ 233B.135(3)(a) and properly decided that her claims are
precluded because she could have raised her claims in the
state court proceedings.
CONCLUSION
Holcombe’s allegations concerning her § 1983 claims are
based on the same set of facts as her claims of wrongful ter-
mination litigated before the Nevada State Personnel Com-
mission and affirmed by the Nevada state court. Therefore,
under Nevada law, her § 1983 claims are precluded, and the
district court properly dismissed Holcombe’s claims. Accord-
ingly, the district court’s judgment of dismissal is
AFFIRMED.
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