This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The panel unanimously concludes this case is suitable for decision **

without oral argument. See Fed. R. App. P. 34(a)(2).

09-15916

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ILLA L. GARCIA and MARY A. JASSO,

 Plaintiffs - Appellants,

 v.

CALIFORNIA DEPARTMENT OF

FORESTRY AND FIRE PROTECTION;

et al.,

 Defendants - Appellees.

No. 09-15916

D.C. No. 2:07-cv-02770-GEBEFB

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Submitted May 25, 2010** 

Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

Illa L. Garcia and Mary A. Jasso appeal pro se from the district court’s

judgment dismissing their action claiming that defendants, California state

agencies and officials, violated their civil rights, various federal statutes and

FILED

JUN 22 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 09-15916

regulations, and California common law by permitting their exposure to harmful

levels of electromagnetic radiation at their workplace and then engaging in a coverup. We have jurisdiction under 28 U.S.C. § 1291. We review de novo dismissal

under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. 

Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir. 2007). We may

affirm on any grounds supported by the record. ACLU of Nev. v. City of Las

Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003). We affirm.

The district court properly dismissed the claims against the state agencies

and individual defendants acting in their official capacities. See Will v. Mich.

Dep’t of State Police, 491 U.S. 58, 71 (1989) (a state agency, state and state

officials acting in their official capacities are not persons susceptible of suit under

§ 1983). 

The district court properly dismissed the first and second causes of action

against the individual defendants acting in their personal capacities because a

California state court previously reached a final adjudication on the merits of those

causes of action in Garcia v. Dep’t of Forestry and Fire Protection, Nos. C053667,

C053793, 2007 WL 1520069 (Cal. App. May 25, 2007). See Kay v. City of

Rancho Palos Verdes, 504 F.3d 803, 809 (9th Cir. 2007) (under California law,

“[r]es judicata . . . prevents litigation of all grounds for . . . recovery that were
3 09-15916

previously available to the parties, regardless of whether they were asserted or

determined in the prior proceeding”) (citations and internal quotation marks

omitted).

The district court properly dismissed the third cause of action against the

individual defendants acting in their personal capacities. Plaintiffs failed to allege

facts that would establish the deprivation of any constitutional rights. See

Woodrum v. Woodward County, Okl., 866 F.2d 1121, 1126 (9th Cir. 1989) (failure

to allege any actual deprivation of constitutional rights, and conclusory allegations

of conspiracy, do not give rise to liability under § 1983); Aldabe v. Aldabe, 616

F.2d 1089, 1092 (9th Cir. 1980) (per curiam) (holding that § 1985 conspiracy

claim was properly dismissed because plaintiff had failed to allege facts

establishing invidious discrimination). Moreover, the criminal statutes and federal

regulation plaintiffs cite do not confer a private right of action. See Aldabe, 616

F.2d at 1092 (no civil liability obtains under 18 U.S.C. §§ 241 or 242). Finally, the

claims under regulations promulgated by the Federal Communications

Commission, as well as the claims of fraudulent concealment of allegedly

excessive radiation levels, were litigated and decided in plaintiffs’ earlier state

court action. See Jasso v. Cal. Dep’t of Forestry, Superior Court of California,

County of Lassen No. 41697; see also First Nat'l Bank v. Russell (In re Russell),
4 09-15916

76 F.3d 242, 244-45 (9th Cir. 1996) (describing the elements of collateral estoppel

under California law to be: (1) the issue decided in the earlier case is identical to

the issue presented, (2) the earlier case culminated in a final judgment on the

merits, and (3) the party against whom estoppel is asserted was a party to, or was in

privity with a party to, the earlier case).

Plaintiffs’ remaining contentions are unpersuasive.

AFFIRMED.