Steven J. Terrall, Plaintiff-appellant, v. Deborah K. Fowler, Defendant-appellee, 127 F.3d 1106 (9th Cir. 1997)

MEMORANDUM^* 

MARSH, District Judge, Presiding

Steven J. Terrall appeals the district court's dismissal of his 42 U.S.C. § 1983 action on preclusion grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissal on grounds of both issue and claim preclusion, see Russell v. Russell ( In re Russell), 76 F.3d 242, 244 (9th Cir. 1996), and we reverse and remand.

Issue preclusion bars the relitigation of matters which have been raised and decided in a prior action; claim preclusion bars the relitigation of matters which could have been raised in a prior action. See Hiser v. Franklin, 94 F.3d 1287, 1290 (9th Cir. 1996), cert. denied, 117 S. Ct. 1106 (1997). In a prior action, Terrall alleged that Fowler conspired with state officials to prevent him from exercising his visitation rights in violation of the substantive due process clause. In the present action, Terrall alleged that Fowler used her influence as a prison employee to have a warrant issued for Terrall's arrest. The issues raised in the present action were not raised in the prior action; the events giving rise to the present action occurred after the prior action was filed so they could not have been included in the prior complaint.

Accordingly, the district court erred by dismissing Terrall's complaint on preclusion grounds. See id.

REVERSED and REMANDED.