                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 03 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RICHARD AZPITARTE,                               No. 11-35739

               Plaintiff - Appellant,            D.C. No. 2:10-cv-01186-TSZ

  v.
                                                 MEMORANDUM *
KING COUNTY; et al.,

               Defendants - Appellees.



                    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




          *
             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).
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)).




                                           2                                      11-35739
The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.




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