                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 12 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GREGORY LEWIS; LEITH                            No.    16-35534
JASINOWSKI-KAHL,
                                                D.C. No. 2:15-cv-00345-TSZ
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

RONALD J. ENGLISH, individually and in
his official capacity as the General Counsel
of Seattle Public School District No. 1;
LARRY DORSEY, individually and in his
official capacity as the Public Safety
Director of Seattle Public School District
No. 1; SEATTLE PUBLIC SCHOOL
DISTRICT NO. 1; DOES 1-250,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Thomas S. Zilly, District Judge, Presiding

                      Argued and Submitted August 27, 2018
                               Seattle, Washington

Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Gregory Lewis (“Lewis”) and Leith Jasinowski-Kahl (“Kahl”) appeal the

summary judgment entered by the district court on their constitutional and state

law tort claims against the Seattle School District (the “District”) and several of its

officers. Because the parties are familiar with the facts, we do not recite them in

full here. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      In a previous state court action, Lewis and Kahl defeated, on First

Amendment grounds, the District’s decision banning them from entering or

attending meetings on “all District property.” The state court enjoined the ban.

      Months later, Lewis and Kahl sued for damages in federal court based on the

same events and claims as the state court action. The district court granted

summary judgment in favor of the District, in part based on res judicata, and

denied a request for further discovery.

      We review de novo the district court’s decision to grant summary judgment.

Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). We view the

evidence in the light most favorable to the non-movant, and we may affirm

summary judgment on any ground supported by the record. Campidoglio LLC v.

Wells Fargo & Co., 870 F.3d 963, 973 (9th Cir. 2017). We review for abuse of

discretion the district court’s refusal to continue summary judgment proceedings

pending further discovery. Swoger v. Rare Coin Wholesalers, 803 F.3d 1045, 1047

(9th Cir. 2015).


                                           2
      We conclude that res judicata bars all of the claims. As a matter of full faith

and credit, we apply Washington claim preclusion law to the state court’s

judgment. Furnace v. Giurbino, 838 F.3d 1019, 1023 (9th Cir. 2016). The state

court’s order satisfies the threshold requirement of a “final judgment on the merits

in the prior suit.” Hisle v. Todd Pac. Shipyards Corp., 93 P.3d 108, 114

(Wash. 2004).

      Claim preclusion bars the federal action because it overlaps with the state

court action in the following respects: “(1) subject matter; (2) cause of action; (3)

persons and parties; and (4) the quality of the persons for or against whom the

claim is made.” Rains v. State, 674 P.2d 165, 168 (Wash. 1983). For good reason,

Lewis and Kahl hardly dispute that the first, third, and fourth elements are present.

So we turn to the second element of claim preclusion—same “cause of action.”

Rather than mechanistically comparing the asserted claims, Washington courts

consider the following factors to determine whether two causes of action are the

same for purposes of res judicata:

      (1) [W]hether 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.

Rains, 674 P.2d at 168 (alteration in original) (quoting Constantini v. Trans World

Airlines, 681 F.2d 1199, 1201–02 (9th Cir. 1982)).

                                           3
      So understood, the “causes of action” are identical. The first factor is

irrelevant where, as here, a prevailing party seeks to leverage its victory in a

subsequent action (as opposed to a losing party seeking to undermine its defeat).

See Feminist Women’s Health Ctr. v. Codispoti, 63 F.3d 863, 868 (9th Cir. 1995)

(applying Washington law). The other three factors suggest uniformity.

Comparing Lewis and Kahl’s state court trial brief with their complaint in federal

court shows an overwhelming overlap of evidence, rights, and transactional

nucleus of facts.

      Finally, we reject Lewis and Kahl’s argument that assorted jurisdictional

barriers precluded them from pursuing their damages claims in state court. State

courts have concurrent jurisdiction to hear 42 U.S.C. § 1983 actions. Robinson v.

City of Seattle, 830 P.2d 318, 332 (Wash. 1992). Nothing about

RCW 28A.645.010, which authorized Lewis and Kahl’s challenge to the District’s

decision, precluded them from also asserting claims for damages. See, e.g., Clark

v. Cent. Kitsap Sch. Dist. No. 401, 686 P.2d 514, 515 (Wash. Ct. App. 1984)

(plaintiff in superior court had “appealed the Board’s order of dismissal” pursuant

to RCW 28A.625.010’s identical predecessor “and also sought damages for breach

of contract”). Nor did Washington’s 60-day notice-of-claim waiting period,

RCW 4.96.020(4), preclude Lewis and Kahl from asserting claims for damages.

“[S]tate notice of claim provisions are inapplicable to § 1983 actions,” Boston v.


                                           4
Kitsap Cty., 852 F.3d 1182, 1185 (9th Cir. 2017), and the seven months between

filing and final judgment provided Lewis and Kahl ample opportunity to include

the state law claims, see Wash. Super. Ct. Civ. R. 15 (governing amendment and

relation back).

      The federal action overlaps with the state action in the four relevant respects,

so res judicata bars the federal action. The district court acted within its discretion

in denying additional discovery, which was unrelated to the res judicata issue.

      AFFIRMED.




                                           5
