                                                                             FILED
                            NOT FOR PUBLICATION                              MAR 02 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


JOSE BONILLA,                                     No. 13-57139

               Plaintiff - Appellant,             D.C. No. 3:11-cv-01274-GPC-
                                                  WMC
  v.

MICHAEL A. SMELOSKY, Former                       MEMORANDUM*
Warden at CEN; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                            Submitted February 17, 2015**

Before:        O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.

       Jose Bonilla, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due process and

equal protection violations in connection with gang validation proceedings. We


          *
             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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo. San Remo Hotel

L.P. v. San Francisco City & County, 364 F.3d 1088, 1094 (9th Cir. 2004)

(dismissal based on issue preclusion); Lee v. City of Los Angeles, 250 F.3d 668,

679 (9th Cir. 2001) (dismissal under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim). We affirm.

      The district court properly dismissed Bonilla’s due process claims because

the issue of whether the evidence used to validate Bonilla’s gang association was

insufficient or unreliable was actually litigated and decided as a critical part of the

judgment in Bonilla’s prior state court action. See White v. City of Pasadena, 671

F.3d 918, 927 (9th Cir. 2012) (elements of issue preclusion under California law);

Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1346-47 (9th Cir. 1981) (“[B]ecause

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.”). We reject Bonilla’s contention that he

did not receive a full and fair opportunity to litigate in state court the issues raised

by his due process claims, and his arguments regarding the statements in

defendants’ discovery responses.

      The district court properly dismissed Bonilla’s equal protection claim


                                            2                                      13-57139
because he failed to allege facts sufficient to show intentional discrimination based

on race or national origin. See Lee, 250 F.3d at 686 (a § 1983 equal protection

claim requires showing “that the defendants acted with an intent or purpose to

discriminate against the plaintiff based upon membership in a protected class.”).

      Because Bonilla did not present any discernible arguments in his opening

brief regarding the denial of his motion for reconsideration under Federal Rule of

Civil Procedure 60(b), we deem the issue waived. See Nev. Dep’t of Corr. v.

Greene, 648 F.3d 1014, 1020 (9th Cir. 2011) (pro se appellant waived issues not

supported by argument in brief).

      AFFIRMED.




                                          3                                    13-57139
