Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM^** 

Leroy Woods appeals from the district court's grant of summary judgment for defendants Lesley Portee and Richard O. Davis. The district court found that Woods was precluded from bringing this action under 42 U.S.C. section 1983 for an allegedly illegal seizure of his address book under the rule of collateral estoppel that has been applied to Sec. 1983 actions since the Supreme Court's decision in Allen et al. v. McCurry, 449 U.S. 90 (1980). We review the entry of summary judgment de novo, KL Group v. Case, Kay and Lynch, 829 F.2d 909, 914 (9th Cir. 1987), and the denial of discovery prior to the entry of summary judgment for abuse of discretion. Landmark Development Corp. v. Chambers Corp., 752 F.2d 369, 373 (9th Cir. 1985) (per curiam).

It is undisputed that at a certain juncture in his criminal trial, Woods had an opportunity to raise his fourth amendment objections to the admissibility of his address book, and that he did not do so. A mere "opportunity," however, is not enough to trigger the doctrine of collateral estoppel. Haring v. Prosise, 462 U.S. 306, 316 (1983). For Woods to be estopped in his section 1983 action, he must have had a full and fair opportunity to raise his arguments regarding the allegedly illegal search of his room and seizure of his address book. See id. at 317-18; Allen, 449 U.S. at 101. In addition, for collateral estoppel to apply, the fourth amendment issue must have been actually litigated, decided, and necessary to the state court's final judgment.¹ 

The record before us does not establish whether Woods was given a full and fair opportunity to raise his fourth amendment argument. We need not decide this issue, however, because it is clear from the record that the legality of the search and seizure was never decided by the Arizona courts. Woods's counsel only made a timely objection on relevancy grounds. When he tried to raise his client's fourth amendment objection, the trial court ruled the objection untimely and did not decide it. Because the issue was not actually litigated, Woods could not be collaterally estopped from raising it in the Arizona courts, and therefore is not barred from raising his fourth amendment claim in this action.

We further decline to affirm the district court's entry of summary judgment on the alternative ground that Woods failed to present evidence that Portee and Davis acted under color of state law. While we may affirm summary judgment on any ground fairly presented by the record, San Bernardino Physicians' Service Medical Group v. County of San Bernardino, 825 F.2d 1404, 1407 (9th Cir. 1987), Woods never had an opportunity to argue the state action issue before the district court and the issue is not fairly presented in this court on appeal. Woods deserves adequate notice and an opportunity to respond to the moving party's arguments before summary judgment can properly be entered against him. See Portland Retail Druggists Ass'n v. Kaiser Foundation Health Plan, 662 F.2d 641, 645 (9th Cir. 1981), cert. denied, 469 U.S. 1229 (1985).

Nevertheless, we cannot find that the district court abused its discretion in dismissing the action without ruling on Woods's motion for sanctions. Woods did not file the request for sanctions until the day judgment was entered.

We reverse the award of summary judgment and remand to permit Woods to respond to Portee's state action arguments.

REVERSED and REMANDED.