Unpublished Disposition, 855 F.2d 864 (9th Cir. 1986)

MEMORANDUM^** 

Brad Wilkinson appeals from the district court's grant of summary judgment to the defendants. The appellant contends that the trial court erred in its finding that his 42 U.S.C. § 1983 claims were barred by res judicata, that the trial court improperly relied on two affidavits presented with the defendants' motion for summary judgment, and failed to address all of the issues raised in his complaint. We AFFIRM.

FACTS

The appellant is a prisoner incarcerated at Arizona State Prison, Central Unit. In 1982, the appellant brought suit under 42 U.S.C. § 1983 against Arizona state prison officials and the State of Arizona requesting injunctive relief to require the prison to provide a constitutionally adequate prison law library and for damages for injuries caused by the inadequate law library. On January 6, 1984, the district court granted the requested injunctive relief. It found that the prison law library was inadequate at the time the appellant filed his original suit. The court noted that at the time it granted relief the library was constitutionally adequate under Bounds v. Smith, 430 U.S. 817, 829 (1977). The court, however, found that the appellant's case was not moot because the inadequate conditions existing in the library at the time the suit was filed could easily recur. The court found that library hours were constitutionally adequate. The court ordered the defendants to maintain a complete and current collection of works contained in an approved list included as part of its court order. The court also found that the defendants possessed a good faith qualified immunity from damages under Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982).

On April 10, 1985, the appellant brought the present suit against the same defendants under 42 U.S.C. § 1983 alleging noncompliance with the January 5, 1984 district court order requiring a minimum library at the prison. His first amended complaint included claims related to library facilities, library hours, inadequate staffing, and harassment for raising grievances about library conditions. The defendants answered raising the affirmative defense that the appellant's present claim was barred by res judicata. The defendants later filed a motion to dismiss or for summary judgment. The district court ordered briefing on whether the present suit was merely an attempt to enforce the January 6, 1984 court order, rather than a new action, and whether the action should be consolidated. As part of its brief on this issue, the defendants submitted affidavits from two prison workers named Bojorquez and Cleveland concerning the present status of the law library. On July 9, 1986, the district court granted the defendants' motion for summary judgment. The court found that the plaintiff was attempting to relitigate issues previously decided in the 1984 case. Relying on the Bojorquez and Cleveland affidavits, the court found that the prison law library was in substantial compliance with the January 6, 1984 court order. The court also found that any alleged inadequate or unhealthful library facilities had also been cured by the defendants. The court rejected the appellant's harassment claims brought under the "cruel and unusual punishment" clause of the eighth amendment as insufficient to make out such an eighth amendment claim. The court granted the defendants' motion for summary judgment as to all counts of the plaintiff's first amended complaint. Wilkinson timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). A district court's finding of res judicata is also subject to de novo review. In re Daley, 776 F.2d 834, 836 (9th Cir. 1985), cert. denied sub nom. Daley v. Frank, 476 U.S. 1159 (1986). Whether an identity of parties and causes exists in successive cases is a mixed question of law and fact in which the legal issues predominate. Blasi v. Williams, 775 F.2d 1017, 1018 (9th Cir. 1985) (per curiam).

The doctrine of res judicata provides that when a final judgment has been entered on the merits of a case, it is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. Nevada v. United States, 463 U.S. 110, 129-30 (1983); In re Daley, 776 F.2d at 838. There is a complete identity of parties and causes in the case at bar with the case brought by the appellant in 1982 and decided in 1984. Wilkinson originally sued the state prison system and various officials and sued the same defendants and system in the present suit. Likewise, his claim of inadequate prison library conditions is identical to that previously brought. We hold that the appellant's present claim is barred by res judicata.

The court also properly found that present library conditions at the Central Unit of the Arizona State Prison were constitutionally adequate. The appellant's contention that the court improperly relied on the Bojourquez and Cleveland affidavits because they were made by affiants without personal knowledge of the library's condition at the time the present suit was filed is irrelevant. The affidavits set out inventories of the present condition of the library, both as to its collection and its physical condition. These issues are dispositive of whether the library is presently in compliance with the January 6, 1984 court order.

The court also addressed all claims of the defendant: "It is further ordered granting defendants' motion for summary judgment as to all counts of plaintiff's First Amended Complaint." See July 8, 1986 district court order (emphasis added). The court was also correct in its findings that the "harassment" claims are not constitutionally cognizable under the eighth amendment. As the court noted, the claimed "harassment" included such events as: intentional misspelling of the plaintiff's name, "stopping law book from the publisher due to three-ring binders," loss of an "ice" pass, being made to stand outside for two and one half hours on a single day, and allowing a prisoner with AIDS to pass within two feet of the plaintiff. These acts do not constitute "cruel and unusual punishment" under the eighth amendment. The parties will bear their own costs.

AFFIRMED.