                                                                              FILED
                             NOT FOR PUBLICATION                               JUL 24 2015

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



                              FOR THE NINTH CIRCUIT


LEANNA SMITH, individual and as the              No. 14-15390
mother of CR, a minor,
                                                 D.C. No. 2:13-cv-00332-SRB
                Plaintiff - Appellant,

  v.                                             MEMORANDUM*

STATE OF ARIZONA, et al.,

                Defendants - Appellees.



LEANNA SMITH, individual and as the             No. 14-15473
mother of CR, a minor,
                                                D.C. No. 2:13-cv-00332-SRB
                Plaintiff - Appellee,

       v.




KATHRYN COFFMAN, M.D., et al.,

                Defendants - Appellants.

And


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
STATE OF ARIZONA et al.,

            Defendants.

                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                          Argued and Submitted April 17, 2015
                               San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges and GLEASON,** District
Judge.

      Leanna Smith appeals from the district court’s order granting Defendant-

Appellees’ motion to dismiss on claim preclusion grounds. Consolidated with that

appeal is an appeal of the district court’s order denying fees requested by

Defendant-Appellants Kathryn Coffman and St. Joseph’s Hospital and Medical

Center. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

      1. “This court reviews de novo a district court’s dismissal based on res

judicata.” W. Radio Servs. Co., Inc. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.

1997) (citing UPS, Inc. v. Cal. Pub. Util. Comm’n, 77 F.3d 1178, 1182 (9th Cir.

1996)). “Res judicata, also known as claim preclusion, bars litigation in a

subsequent action of any claims that were raised or could have been raised in the


       **
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
                                           2
prior action. In order for res judicata to apply there must be: 1) an identity of

claims, 2) a final judgment on the merits, and 3) identity or privity between the

parties.” Id. (internal citations omitted). The district court accorded preclusive

effect to two prior actions, Smith v. Barrow Neurological Institute, No. CV 10-

01632-PHX-FJM, 2012 WL 4359057 (D. Ariz. Sept. 21, 2012) (“Smith I”) and

Smith v. Arizona, No. 2:12-cv-00905-ROS (“Smith II”), and dismissed all the

claims in this action (“Smith III”).

      2. As to Smith II, most of the defendants in that action were dropped by the

amendment of the complaint, which carries no preclusive effect. Hells Canyon

Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 686 (9th Cir. 2005). And

although the district court granted summary judgment on the merits to the

remaining defendants in Smith II, it subsequently issued an order dismissing the

action without prejudice, which likewise lacks res judicata effect. See Fed. R. Civ.

P. 41(a); In re Corey, 892 F.2d 829, 835 (9th Cir. 1989).

      3. As to Smith I, a final judgment on the merits resolved that case in favor of

defendants.1 And Smith is in privity because she was the plaintiff in Smith I and is

the party against whom claim preclusion is being asserted here. See California v.


      1
        We affirmed the district court’s order granting summary judgment in Smith
I in Smith v. Banner Health Systems, – F. App’x –, 2015 WL 3758031 (9th Cir.
June 17, 2015).
                                           3
IntelliGender, LLC, 771 F.3d 1169, 1176–77 (9th Cir. 2014). Therefore, res

judicata will apply to the extent there is an identity of claims between Smith I and

Smith III.

      To determine whether an identity of claims exists, this court applies a four-

part test, examining

             (1) whether rights or interests established in the prior
             judgment would be destroyed or impaired by prosecution
             of the second action; (2) whether substantially the same
             evidence is presented in the two actions; (3) whether the
             two suits involve infringement of the same right; and (4)
             whether the two suits arise out of the same transactional
             nucleus of facts.

Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (quoting Harris v.

Jacobs, 621 F.2d 341, 343 (9th Cir. 1980)). Whether the two suits arise out of the

same transactional nucleus of facts is “the most important” criteria. Id.

      Here, Smith I and Smith III arise out of the same transactional nucleus of

facts—the taking into custody of CR by the State of Arizona and the subsequent

treatment provided to CR while in state custody. And both cases involve the

alleged infringement of Smith’s parental rights. These factors weigh heavily in

favor of finding an identity of claims. The other two Costantini factors also weigh




                                          4
in favor of such a finding.2 The operative complaint in Smith I was filed on

December 23, 2010. We hold that any claim that was or could have been raised in

that complaint is barred by res judicata, and that all of the claims in this action

could have been raised in the December 2010 Smith I complaint except the claim

for malicious prosecution.

      4. Smith’s malicious prosecution claim could not have been brought until

CR’s dependency proceeding was concluded in January 2012. See Giles v. Hill

Lewis Marce, 988 P.2d 143, 147 (Ariz. Ct. App. 1999) (“In an action for malicious

prosecution, the plaintiff must show the defendant instituted a civil action which

was motivated by malice, begun without probable cause, terminated in favor of the

plaintiff, and damaged the plaintiff.”). However, we need not remand on that claim

because “[i]f support exists in the record, a dismissal may be affirmed on any

proper ground.” Sinibaldi v. Redbox Automated Retail, LLC, 754 F.3d 703, 706

(9th Cir. 2014). The district court in Smith I found that “[i]n light of the reports

from CR’s doctors and established law under A.R.S. § 8-821(B), a reasonable CPS

investigator would have probable cause of believe that taking CR into temporary

protective custody was lawful at the time.” We hold that the district court’s


      2
        The rights or interests of the Smith I defendants could be impaired in this
action through renewed exposure to liability stemming from the same acts. And
the relevant evidence in the two actions is substantially the same.
                                           5
finding that CPS had probable cause to initiate proceedings related to CR is

properly accorded collateral estoppel effect and forecloses Smith’s malicious

prosecution claim. See B. & B. Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct.

1293, 1302–03 (2015).

      5. “We review a district court’s decision to grant attorneys’ fees pursuant to

42 U.S.C. § 1988 for an abuse of discretion.” Galen v. Cnty. of Los Angeles, 477

F.3d 652, 658 (9th Cir. 2007) (citation omitted). We hold that the district court did

not abuse its discretion in determining that Smith’s pursuit of this action was not

“unreasonable, frivolous, meritless or vexatious” and declining to award fees.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).

      AFFIRMED.




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