                                                                                      FILED
                               NOT FOR PUBLICATION                                     JUN 05 2013

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




                                FOR THE NINTH CIRCUIT



 KALVIN KALDOR,                                         No. 11-17245

                Plaintiff-Appellant,                    D.C. No. 3:10-CV-529-LRH-RAM

   v.                                                   MEMORANDUM *

 HOWARD SKOLNIK, an individual,
 DON HELLING, an individual, STATE
 OF NEVADA, ex. rel., ITS
 DEPARTMENT OF CORRECTIONS, a
 political subdivision of the State of
 Nevada,

                Defendants-Appellees.

                      Appeal from the United States District Court
                               for the District of Nevada
                     Larry R. Hicks, Senior District Judge, Presiding

                                 Submitted May 17, 2013 **
                                 San Francisco, California

Before: CLIFTON and BEA, Circuit Judges, and KORMAN,




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes that this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

                                                1
         Senior District Judge.***

       Kalvin Kaldor, a former correctional officer, filed this civil rights action

alleging that he was terminated in retaliation for public statements he made to a

Nevada legislative committee regarding proposals to reduce the budget of the state

prison at which he was employed. Prior to his termination, Kaldor was granted a pre-

disciplinary hearing, which resulted in an adverse determination. He withdrew his

appeal of that determination and filed this action.

       The district court granted summary judgment for defendants on the ground that

this action is barred by claim preclusion. Specifically, the district court held that

because “the facts supporting Kaldor’s federal action and the previous administrative

hearing are the same,” his failure to raise the wrongful termination claims at the

administrative hearing “preclude him from having those claims adjudicated by [the

district court].” Kaldor v. Skolnik, No. 3:10-cv-0529-LRH-RAM, 2011 WL 3841109,

at *3 (D. Nev. Aug. 26, 2011) (citing Holcombe v. Hosmer, 477 F.3d 1094, 1099-1100

(9th Cir. 2007)).

       Kaldor’s sole argument on appeal is that, because he withdrew his appeal from

the adverse determination of the pre-disciplinary hearing, the district court erred in

holding that his complaint was barred by claim preclusion. Kaldor cannot avoid the


        ***
               The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.

                                              2
preclusive effect of the pre-disciplinary hearing by forgoing an appeal that would have

entitled him to a full administrative hearing. Indeed, under Nevada law, “unreviewed

administrative determinations are binding and have preclusive effect.” Dias v. Elique,

436 F.3d 1125, 1130 (9th Cir. 2006) (citation omitted). Moreover, Kaldor’s failure

to raise the allegations in his complaint at the pre-disciplinary hearing does not defeat

claim preclusion. See Olson v. Morris, 188 F.3d 1083, 1086-87 (9th Cir. 1999)

(stating that a party’s failure to raise a defense he had the right to raise in an

administrative hearing does not defeat application of res judicata).

      AFFIRMED.




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