claims committed three distinct errors each of which is an independent basis for reversal by this court most fundamentally the district court misapplied california's primary rights rule of claim preclusion by wrongly holding that mr furnace is retaliation and equal protection claims and his different claims he previously litigated in california state court through his habeas petition all concerned the same singular harm namely his wrongful placement in this prison secure housing unit or sh you that holding wrongly focused on the facts defining mr frum says claims when california law is clear that factually identical claims can be filed in multiple honor and this court is squarely held that in the bruce case the heinz case also holds that in both of those cases this court made clear that the some evidence standard that is used to adjudicate drew process claims about placement into the shoe the since were here i have the same question about it the equal protection claim if there were two prisoners side by each in two different cells and one of them was a person of color and one of them is not and they both have the same reading material and one of them is validated as being member of a gang affiliated with a gang because that reading material is some evidence does that preclude an equal protection crime there's some evidence standard only apply this court is only held the some evidence standard applies to due process claims i think recognizing that retaliation claims and equal protection claims seek to vindicate harms that are different from the harms that issue with a due process claim ok so this gets back to your primary rights argument you're arguing which i find primary right stuck as always slippery as far as i'm concerned it's a little difficult for me to reconcile and but i think you come back to what is the harm being alleged exactly your honor it comes down to what harm is being alleged and i think the california courts in both the georgian the henderson cases have made clear that a claim that a decision is substantively wrong is distinct from  claim that a decision is wrongly motivated due to retaliation or for race or some other reason and so those two classes of claims can indeed be brought separately as is the case here even though it's validated because there is some evidence  gating the things that were determined in state court or what just that there's some evidence that he's affiliated with a gang yes but because this court in bruce and hines held that that some evidence standard does not apply to the validation decision for purposes of retaliation that's not something that would bind him from relating the question in in this court the the defendants here don't really offer in their papers much answer to the california law that distinguishes between claims that decision is substantively wrong from claims that incision is wrongly motivated they largely focus on this court's going salis decision but for several reasons that case does not control the result in this case the parties and agreed that the exact same primary right was at issue in the state case in the subsequent federal case and the prisoner there simply argued that the saying a same primary right can be split into multiple actions so long as a prisoner bring substantive claims and one action and procedural claims and the other action that's sort of an automatic bright line distinction is all this court rejected in gonzales we don't ask for that here and instead the key here is the difference between retaliation and equal protection claims on one hand due process claims on the other hand and the fact that the underlying harms are different between those two cases you're separate from the difference in primary rights that that issue between the two cases there are two other reasons that this court can reverse the decision below the first is the fact that this case involves different parties from the state action the defendant this in this case undisputedly were not parties to mr francis a b s action now they claimed in their brief that that issue of mutuality just isn't one that is required to california law but the california supreme court in the dk and holdings case recently squarely rejected that argument the defendants argued in their letter recently submitted to this court that in fact they're in privity with mr furnish discussed odeon and so as a result they can avail themselves of of their affinity with that case however the defendants here were sued in their individual capacity and it is it has been held by numerous courts including the fourth circuit in the eighth circuit that even when the exact same party is that issue they are not in privy with themselves if there sued in their individual capacity in one case and in their official capacity in the other case and so there's no privity here and mutuality as a result is another reason that the decision below maybe reversed the third reason is the fact that mr furnace seeks in this case money damages that he could not have possibly sought in his hey b s petition california courts and been have noted this repeatedly and the defendants don't dispute that point and here too the law is clear that if you seek relief that you could not have possibly sought in your first action you cannot be barred from claim preclusion and again i just want to emphasize that what we're talking about here is claim preclusion of claims that mr furnace has never litigated no court has ever addressed these allegations no court has ever rejected them issue  believe that the defendant gonzales raised the point so i don't think it was before the court the court's decision certainly doesn't acknowledge the argument and i don't believe it was raised in the briefs as well the court has no further questions at this time i'd like to reserve the rest of what i'm missing your honor that the court did more than just adopted the party's stipulation for like a better term the court actually went on to say to point out the fact that we're talking about even though  essentially the same claim so we're very sure there retaliation equal protection the court pointed out that it was pertaining to the same defendants the same events the same type of situation that was at issue and what a contrast it to was brought home versus cry when we're talking about two different incidents and therefore there was a procedure and a source and the type right and what what i think it's important to keep in mind is what it is that we're trying to avoid by these types of precludes of doctrines and that is independent judgments w trying to avoid an individual trying to get a second bite at the proverbial apple this way over here we have one incident that led to allegedly different harms on the part of the plaintiffs so we could race and before and therefore irrespective of if i could it's the course discussion is on page twelve thirty four and it says when challenging the same actions by the same group of officials at the same time you salting in the same harm allegation i think it's actually a very similar type of situation over there the allegations seem to involve that there was retaliation separate apart from the denial of the permit which was i think the underlying harm over here what we have is the underlying harm is the same which is the  which case your honor like bruce talks about the fact that there is a separate harm that's at issue retaliation claims which is the right not to be retaliated my point is that the underlying harm in terms of what under the primary rights here would be the validation because mr furness does not allege that for example some individuals retaliated against him when he was complaining about the validation by threatening him he said that the ultimate basically what he was complaining about and what he's trying to get out of is the validation process itself and if you look at california's primary rights doctrine that would be the focus of the analysis rather than the separate allegations now let's assume if you  not confused does say that how do you get out from under that because another aspect of the retaliation claim that the plaintiff would have to establish was that the actions that he complains about in this case the validation like a legitimate  retaliation claim in the supreme court as held in there in the employment context in harbin vs more that in order to show that and individuals to show that the allegedly retaliatory action was the but for reason  for the retaliation it was the but for reason for the ultimate result and that's where you get into the concerns about having inconsistent judgments it into state court decision and at the federal cause of action that mr furnace attempted to raise here from the same underlying harm separately i wanted to address different parties issue that plaintive raises again i'd submit to the court declan's all this is on point on this particular issue because in that case it involved again is action which by state law must name the custodian of the individual as a defendant and therefore if plaintiff's reading of california primary california claim then there would never be precluded of effective previous a v s actions which is contrary to what this court has already held moreover if you look at the pretty analysis the type of situations which the california supreme court has said are the types of situations where pretty applies are at issue here for example you have situations where there is a contractor sub contractor a car a corporation it's employees what you have here is the state he is action which named the warden but the warden defended the actions of the underlying think it actually shows how can solve this does not control this case the sentence at the end of the court's analysis is now i'm quoting when challenging the same actions by the same group of officials at the same time that resulted in the same harm is no agreement here it also points out thing official that under your theory that doesn't work doesn't exactly exactly i mean gonzales is inconsistent with your theory that's right because in all of the had to be they had to be sued in their official capacity in the certainly make claims it would be the end it would be the end of the of a claim preclusion argument but it would do nothing to issue preclusion or that privity is not required or that relationship between between the defendants and both actions is not required  just operating to bar claims that were never raised and so it makes sense i think to have that doctrine be narrow in its effect the california courts have actually been quite explicit that it's a pretty narrow doctrine under california law and that's because issue preclusion can be quite robust in how it prevents the real litigation things that a prisoner brought up in an initial hey vs action your counsel referred to how this is mr furnace trying for a second bite not so this is his first bite still in retaliation equal protection and the even if he is correctly in the shoe and bruce i think makes that as clear as can be of course no further question can i just and whether he's correctly in the shoe or not is not going to be revisited in your case is that correct that is correct that is correct yes of course