                                                                           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                           NOT FOR PUBLICATION                              JUN 17 2010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



MANSE SULLIVAN,                                  No. 08-17469

             Plaintiff - Appellant,              D.C. No. 5:04-cv-02089-JW

  v.
                                                 MEMORANDUM *
COUNTY OF SANTA CLARA, the Santa
Clara County Board of Supervisors; et al.,

             Defendants - Appellees,

and

T. P. RYAN; et al.,

             Defendants.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                             Submitted May 25, 2010 **



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

      Manse Sullivan appeals pro se from the district court’s summary judgment

for defendants in his 42 U.S.C. § 1983 action challenging the conditions of

confinement in county jail during his civil commitment proceedings under the

Sexually Violent Predators Act. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. City of Martinez v. Texaco Trading & Transp., Inc., 353 F.3d

758, 761 (9th Cir. 2003). We affirm in part, reverse in part, and remand.

      The district court properly granted summary judgment as to Sullivan’s

claims arising from his confinement in 1999 because those claims have already

been litigated, or could have been litigated, by the parties or their privies in state

court. See Sullivan v. Santa Clara County Bd. of Supervisors, No. CV 812427, slip

op. at 1 (Cal. Super. Ct. Oct. 29, 2003) (dismissing Sullivan’s claims with

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

Cir. 2007) (describing elements of res judicata under California law).

      However, Sullivan’s claims arising from his confinement in 2003 and 2004

were not raised in the state court case filed on November 4, 2002, and thus, those

claims are not precluded. See Clark v. Yosemite Cmty. Coll. Dist., 785 F.2d 781,

789 (9th Cir. 1986) (“The doctrine of res judicata extends only to the facts and

conditions as they existed at the time the judgment was rendered, and to the legal


                                            2                                     08-17469
rights and relations of the parties as fixed by the facts determined in the

judgment.”). Accordingly, we reverse the grant of summary judgment as to those

claims, and remand for further proceedings.

      Sullivan’s remaining contentions are unpersuasive.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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