Richard Azpitarte v. King County;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD AZPITARTE,
Plaintiff - Appellant,
v.
KING COUNTY; et al.,
Defendants - Appellees.
No. 11-35739
D.C. No. 2:10-cv-01186-TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted December 19, 2012**
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Richard Azpitarte appeals pro se from district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging violations under the Fourteenth Amendment
and Washington state tort law as barred by the doctrine of claim preclusion and for
FILED
JAN 03 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-35739 2
failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s judgment on the pleadings under Fed. R. Civ. P. 12(c),
Honey v. Distelrath, 195 F.3d 531, 533 (9th Cir. 1999), and we affirm in part,
reverse in part, and remand.
The district court properly dismissed Azpitarte’s claims arising prior to
March 3, 2009 as barred by claim preclusion because Azpitarte’s current case
arises out of the same transactional nucleus of facts as his prior federal action,
which was adjudicated on the merits. See Mpoyo v. Litton Electro-Optical, 430
F.3d 985, 986-87 (9th Cir. 2005) (stating the requirements for application of claim
preclusion); United States v. $149,345 U.S. Currency, 747 F.2d 1278, 1280 (9th
Cir. 1984) (a sanction dismissal “is a judgment on the merits within the meaning of
Fed. R. Civ. P. 41(b), and operates as res judicata to bar a second suit”).
However, dismissal of Azpitarte’s § 1983 claim alleging ongoing
“harassment by helicopter” after March 3, 2009 was improper at this stage in the
proceedings because Azpitarte has sufficiently plead a violation of the Fourteenth
Amendment. See Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998)
(substantive due process violations require a deprivation of “life, liberty, or
property,” in such a way that “‘shocks the conscience’” (citation omitted)).

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The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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