FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

URSULA HOLCOMBE, 

Plaintiff-Appellant,

v. No. 05-15151

DAVID HOSMER; RICHARD D.C. No. KIRKLAND,  CV-03-00587-HDM Defendants-Appellees,

OPINION and

DALE LIEBHERR,

Defendant. 

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Submitted January 11, 2007*

San Francisco, California

Filed February 23, 2007

Before: A. Wallace Tashima and Consuelo M. Callahan,

Circuit Judges, and George P. Schiavelli,** District Judge.

Opinion by Judge Callahan

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable George P. Schiavelli, United States District Judge for

the Central District of California, sitting by designation. 

2073
COUNSEL

Jeffery A. Dickerson, Reno, Nevada, for appellant Ursula

Holcombe. 

Brian Sandoval, Attorney General, Carson City, Nevada;

Michael Somps, Deputy Attorney General, Carson City,

Nevada, for appellees David Hosmer and Richard Kirkland.

OPINION

CALLAHAN, Circuit Judge: 

Appellant Ursula Holcombe (“Holcombe”) alleged under

42 U.S.C. § 1983 that Appellees David Hosmer and Richard

HOLCOMBE v. HOSMER 2075
Kirkland (collectively “defendants”) dismissed her from the

Nevada Department of Public Safety (“Highway Patrol”) in

retaliation for associating with her husband in violation of her

First Amendment rights. The district court granted the defendants’ Rule 12(b)(6) motion, concluding that Holcombe’s

claims were precluded by the state court’s affirmance of an

administrative decision upholding her termination. Holcombe

appeals, contending that her First Amendment claims were

not adjudicated in the state court proceedings, therefore, they

were not actually litigated and are not precluded. We affirm

the dismissal of Holcombe’s case.

FACTS AND PROCEDURAL HISTORY

The Highway Patrol terminated Holcombe on July 31,

2002, after charging her with forging two subpoenas related

to her husband’s administrative appeal of his termination by

the Nevada Department of Corrections. Holcombe appealed

her termination, and received an administrative hearing where

she was represented by counsel, testified, presented evidence,

cross-examined witnesses, and successfully excluded some

pieces of evidence. During that hearing, Holcombe specifically discussed her husband’s termination, his appeal, and her

efforts to help him appeal his termination. The hearing officer

(“ALJ”) issued his findings and decision finding just cause for

Holcombe’s termination. Holcombe appealed to the Second

Judicial District Court for the State of Nevada (“state court”),

and the state court affirmed the ALJ’s decision. 

On January 28, 2004, after the state court’s decision

became final, Holcombe filed an amended complaint in federal district court adding the two defendants in this case. The

defendants filed a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6), arguing issue and claim preclusion,

as well as failure to state a claim upon which relief could be

granted.1

1On March 29, 2004, Holcombe filed an opposition and dismissed a

defendant who is not a party to this appeal. 

2076 HOLCOMBE v. HOSMER
The district court granted the motion to dismiss, concluding

that the state court’s final judgment precluded Holcombe’s

§ 1983 claims. Applying Nevada law, the district court cited

Nevada Revised Statute § 233B.135(3)(a), which authorizes a

state district court to remand or affirm the final decision of a

state administrative agency if that decision was in violation of

constitutional provisions. The district court concluded that,

because Holcombe could have raised her First Amendment

claim when she appealed the ALJ’s decision in state court, her

§ 1983 claims were precluded under the principles of claim

preclusion. 

STANDARD OF REVIEW

The court reviews de novo a district court’s dismissal of a

plaintiff’s complaint pursuant to a Rule 12(b)(6) motion. See

Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035 (9th Cir.

2002). All facts alleged in the complaint are presumed to be

true for the purposes of analyzing a Rule 12(b)(6) decision.

Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir.

1988). A district court’s ruling on claim preclusion is also

reviewed de novo. See Robi v. Five Platters, Inc., 838 F.2d

318, 321 (9th Cir. 1988). 

DISCUSSION

I. Claim preclusion bars litigation of claims that were or

could have been raised in a prior action, including claims

under § 1983. 

[1] “Under res judicata, a final judgment on the merits of

an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.”

Allen v. McCurry, 449 U.S. 90, 93 (1980). “Claim preclusion

is a broad doctrine that bars bringing claims that were previously litigated as well as some claims that were never before

adjudicated.” Clements v. Airport Auth. of Washoe County, 69

F.3d 321, 327 (9th Cir. 1995). 

HOLCOMBE v. HOSMER 2077
[2] Claims under 42 U.S.C. § 1983 are subject to claim preclusion even if the litigants did not actually litigate the federal

claim in state court. See Migra v. Warren City School Dist.

Bd. of Educ., 465 U.S. 75, 83-85 (1984) (holding that petitioner’s § 1983 claim is subject to claim preclusion); Allen, 449

U.S. at 97-99 (discussing history of § 1983 and rejecting argument that Congress exempted § 1983 claims from preclusion

by state court judgments). In Migra, the Supreme Court specifically rejected the argument that a § 1983 claim that could

have been, but was not raised in a state-court proceeding can

avoid the preclusive effect of res judicata. Migra, 465 U.S. at

84-85. Therefore, Holcombe’s § 1983 claim is not exempt

from preclusion under the doctrine of claim preclusion. 

II. Under Nevada law, Holcombe’s § 1983 claims are

precluded by the state court judgment. 

A. Federal courts must apply Nevada law concerning

claim preclusion to a prior Nevada state court

judgment. 

[3] “It is now settled that a federal court must give to a

state-court judgment the same preclusive effect as would be

given that judgment under the law of the State in which the

judgment was rendered” under the Constitution’s Full Faith

and Credit Clause and under 28 U.S.C. § 1738. Id. at 81.

Accordingly, the court applies Nevada law concerning claim

preclusion to the Nevada judgment. 

[4] Under Nevada law, there are three elements to claim

preclusion as stated in Bennett v. FDIC:

Was the issue decided in the prior adjudication identical with the one presented in the action in question?

Was there a final judgment on the merits? Was the

party against whom the plea is asserted a party or in

privity with a party to the prior adjudication? 

2078 HOLCOMBE v. HOSMER
652 P.2d 1178, 1180 (Nev. 1982).2

 For the purposes of claim

preclusion, the first element includes claims that could have

been litigated in the first action, even if they were not actually

litigated. See York v. York, 664 P.2d 967, 968 (Nev. 1983)

(holding that for purposes of claim preclusion, the first element meant whether the claim could have been litigated in the

first action). In Tarkanian, the Nevada Supreme Court differentiated issue preclusion (or collateral estoppel) from claim

preclusion, stating: 

Claim preclusion, or merger and bar, is triggered

when a judgment is entered. A valid and final judgment on a claim precludes a second action on that

claim or any part of it. The preclusive effect is generally as to a subsequent action on the same claim or

part thereof, not as to subsequent proceedings in the

same litigation. The claim of a prevailing plaintiff is

merged into the judgment. If the defendant prevails,

the plaintiff is thereafter barred from subsequent

suits on the same claim. The modern view is that

claim preclusion embraces all grounds of recovery

that were asserted in a suit, as well as those that

could have been asserted, and thus has a broader

reach than collateral estoppel. 

Univ. of Nev. v. Tarkanian, 879 P.2d 1180, 1191-92 (Nev.

1994) (citations omitted). Therefore, under Nevada state law,

claim preclusion acts to bar both claims that could have been

asserted in the prior action and alternative grounds of recovery. See Rosenthal v. Nevada, 514 F. Supp. 907, 912 (D. Nev.

1981) (finding plaintiff’s § 1983 claim for damages precluded

by prior administrative adjudication judicially reviewed by

the Nevada state courts). 

2Holcombe does not dispute that the state court proceedings are final,

or that she is in privity with the Highway Patrol and its employees. 

HOLCOMBE v. HOSMER 2079
B. Applying Nevada law, the state court proceedings

preclude prosecution of Holcombe’s § 1983 claims. 

[5] For the purposes of defining a “claim” under Nevada

law, “[t]he authorities agree that when the same evidence supports both the present and the former cause of action, the two

causes of action are identical.” Round Hill Gen. Improvement

Dist. v. B-Neva, Inc., 606 P.2d 176, 178 (Nev. 1980) (quoting

Silverman v. Silverman, 283 P. 593, 598 (Nev. 1930) (Coleman, J., concurring)). Therefore, a “claim” under Nevada law

encompasses all claims that arise out of a single set of facts.

See Firsching v. Ferrara, 578 P.2d 321, 322 (Nev. 1978)

(“the facts essential to the maintenance of both suits are identical; therefore, both suits involve but one cause of action and,

accordingly, the final judgment on the merits in the formal

suit bars subsequent litigation involving any matter which was

or might, with propriety, have been litigated therein.”). 

[6] Applying Nevada law concerning claim preclusion to

this case, the facts supporting Holcombe’s § 1983 claim and

her challenges to her termination are the same. The amended

complaint alleges facts concerning the investigation into the

altered subpoenas, and the Highway Patrol’s decision to terminate Holcombe over the altered subpoenas. Specifically,

Holcombe claimed that the defendants violated her First

Amendment rights concerning her “freedom to associate with

Roger Holcombe” and assist in Mr. Holcombe’s efforts to

exercise his rights regarding his termination. Holcombe testified about these facts at her administrative hearing. Therefore,

Holcombe’s claim that the defendants fired her in retaliation

for exercising her First Amendment rights is the same as her

claim that she was wrongfully terminated. 

C. Holcombe could have raised her First Amendment

retaliation claim under Nevada Revised Statute

§ 233B.135(3)(a). 

[7] Although Holcombe argues that she was not able to

assert First Amendment retaliation at her administration hear2080 HOLCOMBE v. HOSMER
ing, that is not the test for a claim under Nevada law. Still, the

district court concluded that Holcombe could have raised her

First Amendment claims upon judicial review under Nevada

Revised Statute § 233B.135(3)(a). Nevada Revised Statute

§ 233B.135(3)(a) states:

The court shall not substitute its judgment for that of

the agency as to the weight of the evidence on a

question of fact. The court may remand or affirm the

final decision or set it aside in whole or in part if

substantial rights of the petitioner have been prejudiced because the final decision of the agency is: (a)

in violation of constitutional or statutory provisions.

Although there is no Nevada authority regarding the assertion

of constitutional retaliation claims on judicial review of

administrative personnel hearings, the cases interpreting

Nevada Revised Statute § 233B.135(3) and judicial review of

other administrative proceedings suggest that Holcombe could

have raised her First Amendment claim on judicial review. 

In Field v. Nevada, the Nevada Supreme Court reversed an

administrative decision because the agency violated statutory

provisions concerning the calibration of alcohol breath tests to

the percentage of alcohol in a person’s blood. 893 P.2d 380,

381-383 (Nev. 1995). Based on the statutory violations, the

Nevada Supreme Court concluded that the evidence of the

appellant’s breath tests that were calibrated to the amount of

alcohol in a person’s breath were inadmissible. Id. at 383. As

a result, the state failed to carry its burden of showing that the

appellant submitted a test showing that her blood alcohol content was higher than .10, and the Nevada Supreme Court

directed the lower court to vacate the administrative ruling.

Id. In Field, the Nevada Supreme Court reached the merits of

the appellant’s constitutional or statutory defenses to the

administrative action. Id. Therefore, it appears that Holcombe

could have raised her First Amendment rights as a defense to

her termination, arguing that her termination was pretextual.

HOLCOMBE v. HOSMER 2081
[8] Holcombe argues that the Nevada Supreme Court’s

decision in Bivens Constr. v. State Contractors Bd., 809 P.2d

1268 (Nev. 1991), narrows the scope of judicial review to

whether or not the hearing complied with due process. A

closer reading of Bivens shows that it actually supports the

idea that judicial review in Nevada encompasses constitutional and statutory rights. In Bivens, the appellant failed to

object at the hearing to the Board cutting off crossexamination of a key witness. Id. at 1270. On appeal, the

appellant raised a due process claim and an unlawful procedure claim under Nevada Revised Statute § 233B.135(3)(c).

Id. The Nevada Supreme Court reversed the Board’s decision

on both grounds. Id. Bivens and Field establish that the

Nevada state courts may reverse administrative decisions if

they violate constitutional or statutory rights. Therefore, the

district court correctly interpreted Nevada Revised Statute

§ 233B.135(3)(a) and properly decided that her claims are

precluded because she could have raised her claims in the

state court proceedings. 

CONCLUSION

Holcombe’s allegations concerning her § 1983 claims are

based on the same set of facts as her claims of wrongful termination litigated before the Nevada State Personnel Commission and affirmed by the Nevada state court. Therefore,

under Nevada law, her § 1983 claims are precluded, and the

district court properly dismissed Holcombe’s claims. Accordingly, the district court’s judgment of dismissal is

AFFIRMED. 

2082 HOLCOMBE v. HOSMER