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finding that comments "that the company wanted to hire `fresh, young blood,' and `young, aggressive, recent college graduates' . . . are in themselves sufficient to support a jury verdict"
Summary of this case from Chapman v. AI TransportOpinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
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This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Southern District of California, Marilyn L. Huff, District Judge, Presiding.
Before T.G. NELSON, KLEINFELD, and HAWKINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Jesse James Wright, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We may affirm on any grounds supported by the record. See United States v. Washington, 969 F.2d 752, 755 (9th Cir.1992). We review de novo the district court's dismissal on res judicata grounds, see United States v. Schimmels (In re Schimmels), 127 F.3d 875, 880 (9th Cir.1997), and we affirm.
We conclude that Wright's notice of appeal "clearly indicates" that his wife is not a party to this appeal. See Fed. R.App. P. 3(c).
Wright's claim that he was arrested without probable cause could not have been litigated in the prior action brought by his wife; thus, it was not precluded by res judicata. See Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir.1993). This claim is, however, precluded by Heck v. Humphrey, 512 U.S. 477, 483-84, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996) (per curiam). We construe dismissal of this claim as without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam).
The district court properly concluded that Wright's remaining claims are precluded by res judicata. See Nordhorn, 9 F.3d at 1404 (discussing three factors which determine when a prior adjudication precludes a later suit); see also id. at 1405 (discussing factors for deciding when claims are identical); Ellingson v. Burlington N., Inc., 653 F.2d 1327, 1331 n. 3 (9th Cir.1981) (stating that dismissal on statute of limitations grounds is judgment on the merits); In re Schimmels, 127 F.3d at 881 (discussing tests for determining when privity exists between parties).
AFFIRMED.