Hiser v. Franklin

• Decision Date: 03 September 1996
• Docket Number: No. 94-35749,94-35749
• Citation: 94 F.3d 1287
• Parties: 96 Cal. Daily Op. Serv. 6556, 96 Daily Journal D.A.R. 10,785 Timothy William HISER, Plaintiff-Appellant, v. Richard H. FRANKLIN; Frank Sauser; Al Terrault, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1287

94 F.3d 1287

96 Cal. Daily Op. Serv. 6556, 96 Daily Journal

D.A.R. 10,785

Timothy William HISER, Plaintiff-Appellant, v. Richard H. FRANKLIN; Frank Sauser; Al Terrault Defendants-Appellees.

No. 94-35749.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1996.

Filed May 2, 1996.

Withdrawn Sept. 3, 1996.

Decided Sept. 3, 1996.

Steven L. Pevar, American Civil Liberties Union, Denver, Colorado, for plaintiff-appellant.

John K. Bodick, Assistant Attorney General, Juneau, Alaska, for defendants-appellees.

Appeal from the United States District Court for the District of Alaska, James K. Singleton, District Judge, Presiding. D.C. No. CV-93-00015-JKS.

Before FLETCHER, JOHN T. NOONAN, Jr. and RYMER, Circuit Judges.

ORDER

The majority opinion and concurring and dissenting opinion filed May 2, 1996 are withdrawn, and the enclosed opinions are substituted in their place. As the appellee's petition for rehearing previously has been denied and the suggestion for rehearing en banc rejected as well, no further petitions for rehearing or rehearing en banc will be entertained. The mandate shall issue forthwith.

OPINION

FLETCHER, Circuit Judge.

Timothy Hiser, an inmate in the Alaska Department of Corrections' Fairbanks Correctional Center ("FCC"), appeals from the district court's grant of summary judgment in favor of defendant prison officials ("defendants" or "the State"). Hiser sought equitable relief and damages contending that defendants refused to photocopy his legal documents, thereby denying him access to the courts in violation of the Constitution. The district court did not reach the merits of the claim, instead granting summary judgment on the grounds of res judicata. The court reasoned that a class of all Alaska inmates, present and future, had entered into a comprehensive consent decree in state court in 1990 dealing with prison conditions, Cleary v. Smith, 3AN-81-5274 Civ. (3d Jud. Dist.Alaska); the consent decree devoted approximately nine pages to various issues related to inmates' "Access to the Courts" (although it did not address photocopying); and therefore Hiser's claim was or could have been litigated in the previous class action and is barred by res judicata.

We disagree. Because the issue of photocopying was never adjudicated in the Cleary litigation, Hiser's claims are not barred by issue preclusion. Neither are they barred by claim preclusion. Hiser's damages and individual injunction relief claims could not have been brought in the Cleary litigation, as the injury Hiser alleges did not occur until 1992 when his request for photocopying was denied. Although Hiser's class action challenge to the prison's photocopying policy could have been brought in the Cleary litigation, it nevertheless is not barred because it is based on a separate set of operative facts. We have jurisdiction under 28 U.S.C. § 1291 and reverse and remand.

I.

On August 3, 1993, after exhausting his administrative remedies, Hiser filed a section 1983 complaint in United States District Court for the District of Alaska contending that, from 1992 to the present, defendants violated his constitutional right of access to the courts under Gluth v. Kangas, 951 F.2d 1504, 1510 (9th Cir.1991) and Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) by refusing to photocopy his legal documents. He sought declaratory and injunctive relief and damages. He asserted that defendants refused three requests by him to photocopy legal documents. His complaint alleged that inmates at FCC were "routinely denied photocopies of needed legal materials," that he himself "has on several occasions been denied needed copies of legal materials," and that the failure to provide copies "has caused plaintiff to suffer difficulty and harm in pursuing his legal claims." ¹ To his complaint, Hiser attached, among other things, a grievance appeal response stating that "FCC will not make [copies] for you as you have no pending court case involved with this subject," and a response from defendant Franklin stating that "[w]e are under no obligation to photocopy anything, however, we do so if there is a valid reason. The burden is on you to demonstrate this reason." ²

The State moved for summary judgment on the grounds of res judicata, contending that Hiser's photocopying claim "was or could have been raised" in Cleary v. Smith, 3AN-81-5274 Civ. (3d Jud. Dist.Alaska). Cleary was a state class action lawsuit brought on behalf of all present and future Alaska inmates. It sought (only) declaratory and injunctive relief against the Alaska Department of Corrections to redress a variety of prison conditions. It was filed in 1981. The final settlement agreement was approved by the court on September 21, 1990. The agreement is 88 pages plus appendices, with approximately nine pages devoted to topics related to access to the courts, such as materials in the law library and legal mail. No mention of photocopying is made. Even though the issue of photocopying was not addressed in the Cleary litigation, the magistrate judge recommended that summary judgment be granted on the grounds of res judicata. He concluded that there is no independent constitutional right to photocopying and that any such right is a component of the right to access to the courts, which was comprehensively litigated. The district judge agreed with the magistrate judge's reasoning and entered summary judgment in favor of the State. Hiser timely appealed.

II.

The district court's grant of summary judgment on res judicata grounds is reviewed de novo. International Union of Operating Engineers-Employers Const. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993).

III.

The preclusive effects of former litigation are commonly referred to as "res judicata." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984). "Res judicata is often analyzed further to consist of two preclusion concepts: 'issue preclusion' and 'claim preclusion.' " Id.

Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. See Restatement, supra, § 27. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar. See id., Introductory Note before § 24. ³

Id.

To determine the preclusive effect of the Cleary litigation on Hiser's photocopying claim, this court applies Alaska's res judicata law. See id. at 81, 104 S.Ct. at 896 ("It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered."). Alaska generally follows the Restatement (Second) of Judgments. See State v. Smith, 720 P.2d 40, 41 (Alaska 1986); Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986).

A.

Hiser's claims are not barred by issue preclusion. The Alaska Supreme Court has expressly said that "[t]he issue of photocopying was not raised in regard to the [final settlement agreement "FSA" in Cleary ] and is not properly raised as a challenge to the FSA." Hertz v. Cleary, 835 P.2d 438, 440 (Alaska 1992). Issue preclusion only bars the relitigation of issues explicitly litigated and necessary to the judgment. Since the issue of photocopying was not adjudicated in the Cleary litigation, issue preclusion does not bar consideration of Hiser's photocopying claim. The State essentially acknowledges this, explaining that it is relying on the "claim preclusion," rather than "issue preclusion," prong of res judicata.

B.

Neither are Hiser's claims barred by claim preclusion. In Hoffman Const. Co. v. Active Erectors & Installers, Inc., 969 F.2d 796 (9th Cir.1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1258, 122 L.Ed.2d 656 (1993), this court noted that in Alaska, "res judicata covers 'relevant claims that could have been raised in the prior case,' but were not. A mere change in the legal theory asserted cannot revive an already barred action." Id. at 799 (quoting DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987), cert. denied, 484 U.S. 919, 108 S.Ct. 277, 98 L.Ed.2d 239 (1987)). The State asserts that Hiser's photocopying claim is barred because it "could have been raised in Cleary."

1.

Hiser's claims for damages and individual injunctive relief are clearly not barred by res judicata because they could not have been brought in the Cleary litigation. Hiser was not even incarcerated at the time of the Cleary settlement agreement. His claims did not accrue until 1992-two years after the settlement agreement-when he requested and was denied photocopying. Therefore, Hiser's individual claims for damages and injunctive relief are not barred. Accord 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4455 (1995 supp.) ("Another obvious limitation on class action preclusion is that the judgment does not bar an individual claim based on events occurring after the judgment.").

Moreover, the general rule is that a class action suit seeking only declaratory and injunctive relief does not bar subsequent individual damage claims by class members, even if based on the same events. In fact, "every federal court of appeals that has considered the question has held that a class action seeking only declaratory or injunctive relief does not bar subsequent individual suits for damages." In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 892 (E.D.Mich.1983); see, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030-32 (11th Cir.1993) ("It is clear that a prisoner's claim for monetary damages or other particularized relief is not barred if the class...