                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 4 2014

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


ANTHONY GASTON,                                  No. 13-17551

                Plaintiff - Appellant,           D.C. No. 1:08-cv-01629-GSA

  v.
                                                 MEMORANDUM*
TERRONEZ,

                Defendant - Appellee.


                     Appeal from the United States District Court
                         for the Eastern District of California
                     Gary S. Austin, Magistrate Judge, Presiding**

                           Submitted November 18, 2014***

Before:         LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       California state prisoner Anthony Gaston appeals pro se from the district

court’s summary judgment in his action brought under 42 U.S.C. § 1983 and the



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Americans with Disabilities Act (“ADA”) arising from defendant’s alleged denial

of adult diapers for one week. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the district court’s summary judgment on the basis of the doctrine

of res judicata. Hiser v. Franklin, 94 F.3d 1287, 1290 (9th Cir. 1996). We affirm.

      The district court properly granted summary judgment because Gaston

alleged the same claims against the same defendant in a state court action in which

there was a final judgment on the merits. See Manufactured Home Cmtys., Inc. v.

City of San Jose, 420 F.3d 1022, 1031 (9th Cir. 2005) (“To determine the

preclusive effect of a state court judgment federal courts look to state law.

California’s res judicata doctrine is based on a primary rights theory.” (citation

omitted)).

      AFFIRMED.




                                           2                                    13-17551
