                                                                             FILED
                                                                              MAR 21 2013
                            NOT FOR PUBLICATION
                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

                     UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



WILLIAM L. SCOTT,                                 No. 11-55353

              Plaintiff - Appellant,              D.C. No. 2:09-cv-06496-RGK-
                                                  FMO
  v.

JOHN E. POTTER, Postmaster General,               MEMORANDUM *
United States Postal Service,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                            Submitted February 4, 2013 **
                               Pasadena, California

Before: PREGERSON, W. FLETCHER, and NGUYEN, Circuit Judges.


       William L. Scott appeals the district court’s dismissal of his action against




        *
             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).
John E. Potter, Postmaster General of the United States Postal Service, alleging

discrimination and retaliation in violation of the Rehabilitation Act of 1973 and

Title VII of the Civil Rights Act of 1965. Scott also appeals the district court’s

denial of his Request for Continuance of the Motion for Summary Judgment

Hearing Pursuant to Federal Rule of Civil Procedure 56(f). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary

judgment based on res judicata, F.T.C. v. Garvey, 383 F.3d 891, 896 (9th Cir.

2004), and for abuse of discretion a denial of a Rule 56(f) application, Visa Int’l

Serv. Ass’n v. Bankcard Holders of Am., 784 F.2d 1472, 1475 (9th Cir. 1986). We

affirm.

1.    The district court properly dismissed Scott’s claims of discrimination and

retaliation on res judicata grounds. The doctrine of res judicata “bars any lawsuits

on any claims that were raised or could have been raised in a prior action.”

Garvey, 383 F.3d at 897 (quotation marks omitted). Res judicata applies when

there is “(1) an identity of claims; (2) a final judgment on the merits; and (3)

identity or privity between parties.” Id. (quotation marks omitted). The only

dispute here is whether there is an identity of claims between the instant action and

the prior action.

      There is an identity of claims between the prior action and the instant action


                                           2
because the wrongful acts alleged in the complaints were based on the same

transactional nucleus of facts. See Owens v. Kaiser Found. Health Plan, Inc., 244

F.3d 708, 714 (9th Cir. 2001) (“The central criterion in determining whether there

is an identity of claims between the first and second adjudication is whether the

two suits arise out of the same transactional nucleus of facts.” (quotation marks

omitted)). In all three complaints, Scott alleged that, after he was rendered

disabled from a shoulder injury at work, Appellee discriminated against him due to

his disability and retaliated against him for filing Equal Employment Opportunity

claims.

      The only difference among the three complaints is that the acts alleged in the

prior action occurred at a different time than the acts alleged in the instant action.

Nevertheless, Scott neither sought a stay in the prior action to pursue

administrative remedies for the wrongful acts alleged in the instant action, nor

attempted to amend his complaint to include the wrongful acts alleged in the

instant action even though all the wrongful acts occurred before the prior action

was filed in the district court. See Owens, 244 F.3d at 714-15 (“Title VII claims

are not exempt from the doctrine of res judicata where plaintiffs have neither

sought a stay from the district court for the purpose of pursuing Title VII

administrative remedies nor attempted to amend their complaint to include their


                                            3
Title VII claims.”). Thus, the instant action is barred because there is an identity

of claims and the claims could have been raised in the prior action. Garvey, 383

F.3d at 897.

2.    The district court did not abuse its discretion by denying Scott’s Request for

Continuance of the Motion for Summary Judgment Hearing Pursuant to Federal

Rule of Civil Procedure 56(f). The district court properly denied Scott’s Rule 56(f)

application because Scott failed to identify specific facts that further discovery

would reveal nor did he explain why those facts would preclude summary

judgment. See Tatum v. City of San Francisco, 441 F.3d 1090, 1100 (9th Cir.

2006) (“Failure to comply with the requirements of Rule 56(f) is a proper ground

for denying relief.”) (alteration omitted). Moreover, Scott failed to identify any

effort to conduct discovery during the weeks his new counsel represented him in

the district court. See Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir.

2002) (“A district court abuses its discretion only if the movant diligently pursued

its previous discovery opportunities, and if the movant can show how allowing

additional discovery would have precluded summary judgment.” (internal

quotation marks omitted)).

      AFFIRMED.




                                           4
