                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 17 2010

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




                             FOR THE NINTH CIRCUIT



ARCADIO S. ACUNA,                                No. 09-15239

               Plaintiff - Appellant,            D.C. No. 3:07-cv-05423-VRW

  v.
                                                 MEMORANDUM *
LEA ANN CHRONES; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Vaughn R. Walker, Chief Judge, Presiding

                              Submitted May 25, 2010 **


Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Arcadio S. Acuna, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that he was

improperly placed in administrative segregation on the basis of his membership in


          *
             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).
a prison gang. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005) (res

judicata); Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (failure to

exhaust). We affirm.

      The district court properly dismissed the due process claims because they

have already been litigated by the parties or their privies in state court. See Acuna

v. Kirkland, No. HC-PB-05-0005242, slip op. at 1 (Cal. Super. Ct. Oct. 6, 2006); In

re Arcadio Acuna, No. HCPB06-5235, slip op. at 3 (Cal. Super. Ct. Apr. 6, 2007);

see also Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808 (9th Cir. 2007)

(setting forth elements of res judicata under California law); Silverton v. Dep’t of

Treasury, 644 F.2d 1341, 1347 (9th Cir. 1981) (holding that “because of the nature

of a state habeas proceeding, a decision actually rendered should preclude an

identical issue from being relitigated in a subsequent § 1983 action if the state

habeas court afforded a full and fair opportunity for the issue to be heard and

determined under federal standards”).

      The district court properly dismissed the retaliation claims because Acuna

did not exhaust administrative remedies as to those claims before commencing this

action. See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam)




                                           2                                      09-15239
(exhaustion under 42 U.S.C. § 1997e(a) must occur prior to commencement of the

action).

      Acuna’s remaining contentions are unpersuasive.

      AFFIRMED.




                                       3                                 09-15239
