                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 21 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RICHARD WHITEHURST,                             No. 14-15714

                Plaintiff-Appellant,            D.C. No. 3:13-cv-05932-JSC

 v.
                                                MEMORANDUM*
CVS PHARMACY,

                Defendant-Appellee.

                  Appeal from the United States District Court
                      for the Northern District of California
              Jacqueline Scott Corley, Magistrate Judge, Presiding**

                            Submitted April 11, 2017***

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      Richard Whitehurst appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging federal and state law claims arising

from discrimination on the basis of race, age, and disability. We have jurisdiction


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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).
under 28 U.S.C. § 1291. We review de novo a district court’s dismissal on the

basis of res judicata. Cabrera v. City of Huntington Park, 159 F.3d 374, 381 (9th

Cir. 1998). We affirm.

      The district court properly dismissed Whitehurst’s action as barred by the

doctrine of res judicata because Whitehurst’s claims arose out of the same

transactional nucleus of facts, and were raised, or could have been raised, in a prior

federal action between the parties that resulted in a final judgment on the merits.

See id. (setting forth elements of res judicata and explaining that the doctrine bars

subsequent litigation both of claims that were raised and those that could have been

raised in the prior action); Tripati v. Henman, 857 F.2d 1366, 1367 (9th Cir. 1988)

(a final judgment in the district court retains its res judicata consequences while the

decision is pending appeal).

      We reject as unsupported by the record Whitehurst’s contentions regarding

default judgment and defendant’s alleged fraud on the court.

      AFFIRMED.




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