Illa Garcia v. California Department of Forestry and Fire Protection , 385 F. App'x 636 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ILLA L. GARCIA and MARY A. JASSO, No. 09-15916
Plaintiffs - Appellants, D.C. No. 2:07-cv-02770-GEB-
v. EFB
CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION; MEMORANDUM *
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Illa L. Garcia and Mary A. Jasso appeal pro se from the district court’s
judgment dismissing their action claiming that defendants, California state
agencies and officials, violated their civil rights, various federal statutes and
*
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).
09-15916
regulations, and California common law by permitting their exposure to harmful
levels of electromagnetic radiation at their workplace and then engaging in a cover-
up. We have jurisdiction under 28 U.S.C. § 1291. We review de novo dismissal
under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007). We may
affirm on any grounds supported by the record. ACLU of Nev. v. City of Las
Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003). We affirm.
The district court properly dismissed the claims against the state agencies
and individual defendants acting in their official capacities. See Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989) (a state agency, state and state
officials acting in their official capacities are not persons susceptible of suit under
§ 1983).
The district court properly dismissed the first and second causes of action
against the individual defendants acting in their personal capacities because a
California state court previously reached a final adjudication on the merits of those
causes of action in Garcia v. Dep’t of Forestry and Fire Protection, Nos. C053667,
C053793, 2007 WL 1520069 (Cal. App. May 25, 2007). See Kay v. City of
Rancho Palos Verdes, 504 F.3d 803, 809 (9th Cir. 2007) (under California law,
“[r]es judicata . . . prevents litigation of all grounds for . . . recovery that were
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previously available to the parties, regardless of whether they were asserted or
determined in the prior proceeding”) (citations and internal quotation marks
omitted).
The district court properly dismissed the third cause of action against the
individual defendants acting in their personal capacities. Plaintiffs failed to allege
facts that would establish the deprivation of any constitutional rights. See
Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126 (9th Cir. 1989) (failure
to allege any actual deprivation of constitutional rights, and conclusory allegations
of conspiracy, do not give rise to liability under § 1983); Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (holding that § 1985 conspiracy
claim was properly dismissed because plaintiff had failed to allege facts
establishing invidious discrimination). Moreover, the criminal statutes and federal
regulation plaintiffs cite do not confer a private right of action. See Aldabe, 616
F.2d at 1092 (no civil liability obtains under 18 U.S.C. §§ 241 or 242). Finally, the
claims under regulations promulgated by the Federal Communications
Commission, as well as the claims of fraudulent concealment of allegedly
excessive radiation levels, were litigated and decided in plaintiffs’ earlier state
court action. See Jasso v. Cal. Dep’t of Forestry, Superior Court of California,
County of Lassen No. 41697; see also First Nat'l Bank v. Russell (In re Russell),
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76 F.3d 242, 244-45 (9th Cir. 1996) (describing the elements of collateral estoppel
under California law to be: (1) the issue decided in the earlier case is identical to
the issue presented, (2) the earlier case culminated in a final judgment on the
merits, and (3) the party against whom estoppel is asserted was a party to, or was in
privity with a party to, the earlier case).
Plaintiffs’ remaining contentions are unpersuasive.
AFFIRMED.
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