                                                                       FILED
                         NOT FOR PUBLICATION                            DEC 17 2014

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



                         FOR THE NINTH CIRCUIT


JIM DALE DAVIS,                              No. 11-55649

                Petitioner-Appellant,        D.C. No. 3:09-cv-02922-JLS
                                             (POR)
                    v.

LARRY SMALL, Warden,                         MEMORANDUM *

                Respondent-Appellee.


                Appeal from the United States District Court
                   for the Southern District of California
                Janis Sammartino, District Judge, Presiding

                   Argued and Submitted October 6, 2014
                           Pasadena, California

Before: EBEL, ** KLEINFELD, and GRABER, Circuit Judges.

      Jim Davis, a California state prisoner who is serving four consecutive

life-without-parole sentences, appeals the district court’s order granting

Larry Small’s (“the Warden”) motion to dismiss under Rule 12(b)(6). The

district court concluded that claim preclusion barred Davis’s 42 U.S.C. §

      *
            This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
      **
           The Honorable David M. Ebel, Senior Judge for the United
States Court of Appeals for the Tenth Circuit, sitting by designation.
1983 action and alternatively, that Davis failed to state a plausible claim for

relief under the Due Process Clause. We review both conclusions de novo.

Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010); E. & J.

Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1287 (9th Cir. 1992).

Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM. 1

                                I. Background

      In 2008, a sharp metal object was discovered inside a light fixture in

Davis’s prison cell. Following an administrative disciplinary proceeding,

Davis was convicted of possessing dangerous contraband. As a result,

Davis lost his paying prison job, his ability to transfer to facilities with

better programs, and some of his phone and yard privileges. 2

      Davis appealed. After exhausting his administrative remedies, Davis



      1
         During oral argument, Davis suggested that title 15, section 3287(a)
of the California Code of Regulations and Prison Search Policy section
52050.15—which call on prison officials to inspect cells prior to occupancy
by new inmates—give inmates a private cause of action against the prison
for failing to conduct pre-occupancy cell inspections. We do not rule on
that issue because our other grounds for affirming make it unnecessary to
do so. We do note, however, that neither provision clearly expresses or
implies any intent to give inmates a private cause of action.
      2
        Davis also lost 120 days of good-time credit. However, because
Davis has no possibility of being released from prison due to his four
consecutive life-without-parole sentences, these forfeited good-time credits
are not relevant to our analysis, as Davis concedes.
                                        2
filed a habeas action in state court, arguing that he was denied due process.

Both the California Superior Court and a division of the California Court of

Appeal issued reasoned decisions denying Davis’s habeas petition.

Subsequently, the California Supreme Court summarily denied Davis’s

petition for certiorari. Davis then filed this federal action.

                             II. Claim Preclusion

      The district court properly concluded that Davis’s previous state

habeas action bars his current federal § 1983 action, applying California

law. See Gonzales v. Cal. Dep’t of Corr., 739 F.3d 1226, 1231–32 (9th Cir.

2014). California’s claim-preclusion doctrine bars (1) the same parties

from relitigating (2) an identical cause of action in a second suit if (3) the

first suit resulted in a final judgment on the merits. See Mycogen Corp. v.

Monsanto Co., 51 P.3d 297, 301–02 (Cal. 2002). Davis disputes only the

second requirement.

      Under California’s claim-preclusion law, two actions are identical

when they involve the same “primary right”—i.e, when they involve “the

same injury to the plaintiff and the same wrong by the defendant.”

Gonzales, 739 F.3d at 1232–33 (internal quotation mark omitted). Here,

both actions involve the same alleged injury to Davis (the administrative


                                       3
conviction and attendant loss of privileges) and the same alleged wrong by

the Warden (the deprivation of Davis’s liberty without due process). The

two actions are therefore identical. See Mycogen Corp., 51 P.3d at 307

(explaining that one injury gives rise to only one claim for relief even

“where there are multiple legal theories upon which recovery might be

predicated” (internal quotation marks omitted)).

                              III. Due Process

      The district court also properly concluded that Davis failed to state a

plausible claim for relief under the Due Process Clause. To state a

plausible procedural-due-process claim, Davis must allege that (1) he was

deprived of a protected liberty or property interest, and (2) the procedures

followed by the state in depriving him of that interest were constitutionally

insufficient. See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per

curiam). Protected liberty interests may arise from either the Due Process

Clause itself or from state law. Sandin v. Conner, 515 U.S. 472, 483–84

(1995). A state law can create a protected liberty interest in avoiding

particular conditions of prison confinement if the challenged condition

“imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.” Id. at 484.


                                       4
      Davis fails plausibly to allege that the Warden deprived him of a

protected liberty interest. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

(2009). First, the Due Process Clause itself does not give rise to a

protected liberty interest in a paying prison job, the possibility of favorable

transfers, or particular phone and yard privileges. Second, Davis cannot

establish the existence of a state-created liberty interest because he neither

identifies a state law governing the challenged conditions of confinement

nor demonstrates that these conditions impose an atypical and significant

hardship on him. See Sandin, 515 U.S. at 487 (explaining that punishment

in the prison setting is not atypical if it is “within the range of confinement

to be normally expected for one serving [the underlying sentence]”).

      AFFIRMED.




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