NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 4 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS MORALES, No. 18-15009

Plaintiff-Appellant, D.C. No. 5:11-cv-03901-EJD

v.

MEMORANDUM*

MATTHEW CATE; G. D. LEWIS; P. T.

SMITH; R. BELL; CLARK E. DUCART,

Warden,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Argued and Submitted January 13, 2022 Pasadena, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK,** District Judge. Partial Concurrence and Partial Dissent by Judge WALLACE

Plaintiff Jose Luis Morales appeals from the district court’s order dismissing

his claims in a § 1983 action against officials of the Pelican Bay State Prison

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. (“PBSP”). We have jurisdiction under 28 U.S.C. § 1291. We affirm the district

court’s dismissal of Morales’s equal protection and due process claims. We vacate

the judgment on Morales’s Eighth Amendment claim and remand with instructions

to grant leave to amend.

1. Morales alleges that the district court improperly dismissed, on claim

preclusion grounds, his equal protection claim for damages under § 1983. Morales

does not dispute that this claim meets the elements of claim preclusion under

California law. Instead, he argues that California recognizes three exceptions to

claim preclusion and that those exceptions apply here. We disagree.

First, Morales contends that because damages were not an available remedy

in his state habeas proceedings, he should be allowed to seek damages in a

subsequent § 1983 action. This argument for a “limited proceedings” exception is

foreclosed by our decisions in Gonzales v. California Department of Corrections,

739 F.3d 1226 (9th Cir. 2014), and Furnace v. Giurbino, 838 F.3d 1019 (9th Cir.

2016). In those cases, we squarely held that a California habeas judgment has

claim preclusive effect on a subsequent civil action for damages. Gonzales, 739

F.3d at 1231-32; Furnace, 838 F.3d at 1025. We rejected as “irrelevant” the fact

that a plaintiff “could not have obtained damages in his prior habeas action.”

Furnace, 838 F.3d at 1025; Gonzales, 739 F.3d at 1232. Morales attempts to

distinguish Gonzales and Furnace by pointing out that the petitioners in those

2 cases lost in their state habeas proceedings, whereas here, Morales won his state

habeas case and now seeks only an additional remedy for the acknowledged

violation. But this purported distinction lacks support in the caselaw: The

reasoning in neither Gonzales nor Furnace suggests that the application of

California’s claim preclusion rule turns on whether the petitioner prevailed in the

prior state habeas proceeding.

Second, Morales relies on California’s declaratory relief exception to claim

preclusion, which “carves out an exception to the bar of res judicata only where a

plaintiff’s initial action seeks purely declaratory relief.” Mycogen Corp. v.

Monsanto, 51 P.3d 297, 302 (Cal. 2002). We decline to read Morales’s state

habeas petition as requesting only declaratory relief. California’s pre-printed

habeas forms do not include a question asking the petitioner to specify a form of

relief. Morales filled out this form, including the section titled “Grounds for

Relief,” and attached his prison grievance, in which he had requested that prison

officials provide him access to outdoor recreation time. The state habeas court

granted his petition and issued an order enjoining prison officials from denying

him privileges based on his ethnicity and requiring instead that he be individually

validated as a member or associate of a gang before any such restrictions were

imposed. Morales has not provided a plausible theory explaining why he would

have sought only declaratory relief, and we conclude that the better reading is that

3 the state habeas court granted him the injunctive relief that he requested.

Third, Morales argues that this case presents the “rare circumstances” in

which “a final judgment may be denied claim preclusive effect when to do so

would result in manifest injustice.” F.E.V. v. City of Anaheim, 223 Cal. Rptr. 3d

213, 216 (Ct. App. 2017). But Gonzales and Furnace make clear that California

has made a deliberate policy choice to afford claim-preclusive effect to habeas

judgments and bar subsequent suits for damages. See, e.g., Gonzales, 739 F.3d at

1231-32. We would undermine that policy choice if it applied the manifest

injustice exception here.

2. Next, Morales argues that the district court erred in dismissing his due

process claim alleging that Defendant Bell denied Morales an individualized

hearing before subjecting him to lockdown conditions. Even if due process did

require such an individualized hearing, Defendant Bell is entitled to qualified

immunity because he did not “violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”1 Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). In Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.

1980), we held that due process does not require prison officials to provide

1 We reject Morales’s argument that Defendant Bell waived his qualified immunity defense. Defendant Bell raised qualified immunity as soon as it became clear that he was the target of the due process claim—i.e., after Morales amended his complaint to clarify which defendants denied him the individualized hearing. Therefore, the defense was timely raised.

4 prisoners with notice and a hearing before imposing a five-month lockdown like

the one at issue here. We provided two bases for its holding. First, we concluded

that the prisoners had not asserted a cognizable liberty interest. Id. at 601-02.

Second, we concluded that due process does not require an individualized hearing

when prisoners seek to challenge “a rule change of general applicability affecting

an entire class of prisoners.” Id. at 602-03 (quoting Johnson v. Anderson, 370 F.

Supp. 1373, 1382 (D. Del. 1974)).

Morales argues that Hayward is no longer good law. To be sure, Hayward’s

methodology for analyzing whether a plaintiff has asserted a cognizable liberty

interest was subsequently undermined by the Supreme Court’s decision in Sandin

v. Conner, 515 U.S. 472 (1995). But Sandin did not address the second,

independent basis for Hayward’s holding. Without a case explicitly overruling

that aspect of Hayward’s reasoning, Defendant Bell’s conduct cannot be said to

have violated any clearly established right, and the district court properly

dismissed Morales’s due process claim on qualified immunity grounds.

3. Finally, Morales argues that the district court erred in dismissing his

Eighth Amendment claim. In his Amended Complaint, Morales argued that by

virtue of his continuous lockdown, he was deprived of outdoor exercise time and

access to basic hygiene supplies. We have previously held that these types of

deprivations can violate the Eighth Amendment. Keenan v. Hall, 83 F.3d 1083,

5 1089-91 (9th Cir. 1996) (noting that “[d]eprivation of outdoor exercise violates the

Eighth Amendment rights of inmates confined to continuous and long-term

segregation” and that “[i]ndigent inmates have the right to personal hygiene

supplies such as toothbrushes and soap”).

The district court correctly determined, however, that Morales failed to

allege the element of “deliberate indifference” with enough specificity to survive

dismissal. The Amended Complaint alleged:

At plaintiff’s annual review, he appeared before Captain Bell. Plaintiff asked Bell why he was placed on lockdown if he had been disciplinary [sic] free. Bell responded that he could [do] what he wanted and did not care what the courts have said when plaintiff attempted to cite precedent to make his point of being deprived unconstitutionally of rights and privileges. Bell decided to continue to house plaintiff on B-facility.

Although this allegation, if true, establishes Defendant Bell’s subjective awareness

and conscious disregard of at least some of Morales’s allegations, it is not clear

from the face of the Amended Complaint whether Defendant Bell was specifically

aware of the Eighth Amendment deprivations themselves (or only, for example, of

the equal protection violation or the alleged due process violation). Accordingly,

the district court did not err in concluding that Morales failed to state an Eighth

Amendment claim.

We conclude, however, that the district court erred in failing to grant

Morales leave to amend. “[D]ismissal of a pro se complaint without leave to

amend is proper only if it is clear that the deficiencies cannot be cured by

6 amendment or after the pro se litigant is given an opportunity to amend.” Flowers

v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002) (citing Lucas v. Dep’t of

Corr., 66 F.3d 245, 248-49 (9th Cir. 1995)). The record makes clear that

amendment would not be futile in this case, because in earlier filings Morales did

allege that Bell had awareness of the lockdown conditions, including the

deprivations of outdoor exercise time and basic hygiene materials. To the extent

that the district court relied on Morales’s purported delay in asserting the claim, the

district court erred. Contrary to the district court’s indication, Morales did not

assert this claim for the first time in his opposition to the motion to dismiss.

Rather, in his original complaint, Morales asked the district court to take judicial

notice of his state habeas records, which he attached in full and which explicitly

alleged an Eighth Amendment violation. Accordingly, Morales should have been

given leave to cure the deficiency in his allegation of deliberate indifference.

We affirm the district court’s dismissal of Morales’s equal protection and

due process claims. We vacate the judgment on Morales’s Eighth Amendment

claim and remand to the district court with instructions to grant Morales leave to

amend that claim.

AFFIRMED in part, VACATED in part, and REMANDED. Each party

shall bear its own costs.

7

FILED

FEB 4 2022

Morales v. Cate, Case No. 18-15009 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

WALLACE, Circuit Judge, concurring in part and dissenting in part:

I concur with the majority’s decision affirming the district court’s

dismissal of Morales’s equal protection and due process claims. I

disagree, however, with the majority’s decision vacating the judgment on

Morales’s Eighth Amendment claim and remanding to the district court

with instructions to grant Morales leave to amend.

Morales did not request leave to amend in his opening or reply

briefs. Morales thus forfeited this issue on appeal because we do “not

ordinarily consider matters on appeal that are not specifically and

distinctly raised and argued in appellant’s opening brief.” Young v.

Hawaii, 992 F.3d 765, 780 (9th Cir. 2021) (citation omitted); see also

Frank v. Schultz, 808 F.3d 762, 763 n.3 (9th Cir. 2015) (“[I]ssues which

are not specifically and distinctly argued and raised in a party’s opening

brief are waived”) (citation omitted).

Therefore, I would affirm the district court’s dismissal of Morales’s

Eighth Amendment claim and would not consider whether the district

court erred by not granting Morales leave to amend.