This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

March 27, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICKY GARCIA,

Plaintiff - Appellant, No. 06-2225

v. D. New Mexico

DON HOOVER; JEFF SERNA; JOHN

DOE; JOHN DOE; JOHN DOE;

ROBERT J. PERRY; BRIAN CULP;

JOHN SHANKS; JOE R. WILLIAMS;

DARELD L. KERBY; EDWARD

GONZALES; GILBERT GARCIA;

ELMER BUSTOS, each being sued in

their individual and official capacities,

Defendants - Appellees.

(D.C. No. CIV-O6-23 MV/RLP)

ORDER AND JUDGMENT

*

Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination
 Garcia also has convictions for armed robbery, aggravated battery, escape,

1

first-degree murder of an inmate and second-degree murder of an inmate. 

Additionally, while in prison, he has been involved in a riot and prison gang and

has been reprimanded for arson and possession of weapons and drugs.

 In one of Garcia’s previous lawsuits, addressed infra, the defendants 2

alleged Garcia was placed in voluntary administrative segregation upon his

sentencing being commuted. According to Garcia, he was never placed in

voluntary administrative segregation. Rather, he alleges he was placed in

involuntary administrative segregation in retaliation for his murdering a white

correctional officer and his death sentence being commuted.

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of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Ricky Garcia, a New Mexico state prisoner presently confined at Pelican

Bay State Prison in California pursuant to the Interstate Corrections Compact

(ICC), appeals pro se and in forma pauperis from the district court’s sua sponte

dismissal of his civil rights complaint. We affirm.

In 1981, Garcia was sentenced to death in New Mexico state court for the

murder of a correctional officer. In November 1986, the Governor of New 1

Mexico commuted his death sentence to life imprisonment. Thereafter, Garcia

was removed from death row and placed in administrative segregation. In 2

February 1988, Garcia requested a transfer to an out-of-state prison. In May

1989, he was transferred to a federal prison in Marion, Illinois, where he was

placed in administrative segregation. In September 1992, Garcia was returned to

New Mexico and sent to the Central New Mexico Correctional Facility (CNMCF). 
-3-

The CNMCF placed him in involuntary administrative segregation due to his

name appearing on many prisoners’ enemy lists.

In November 1992, Garcia was again transferred—this time to the

Minnesota Correctional Facility. On May 11, 1993, Garcia attacked and wounded

another inmate. In July 1993, Garcia was returned to New Mexico and sent to the

Western New Mexico Correctional Facility. There, he was placed in involuntary

administrative segregation due to his past violence and his name continuing to

appear on prisoners’ enemy lists. On April 29, 1994, Garcia was transferred to

the Pelican Bay State Prison in California, where he is currently confined. Since

his arrival at Pelican Bay, he has been housed in the Special Housing Unit in

administrative segregation due to his past conduct and association with a New

Mexico prison gang.

In 1993, Garcia filed a civil rights action (Case No. CV-93-1286) in the

United States District Court of New Mexico against New Mexico Department of

Corrections (NMDC) officials Dan Hoover and Eloy Mondrago. He alleged his

transfers to out-of-state prisons and his placement in involuntary administrative

segregation were motivated by racism and done in retaliation for having his death

sentence commuted. He also asserted the defendants conspired to place him in

out-of-state facilities and in administrative segregation. The defendants filed a

motion for summary judgment, which was granted. The court concluded Garcia

presented no specific facts in support of his retaliation claims and his placement
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in involuntary administrative segregation and transfers out of state were

reasonably related to the prison’s legitimate security concerns. It also found

Garcia presented no evidence of an agreement or meeting of the minds between

the defendants to support his conspiracy claim.

Ten years later, Garcia filed another civil rights complaint (Case No. CV03-1119) in the New Mexico District Court against Tim LeMaster, John Shanks,

Robert Perry, and Gilbert Garcia (all officials of the NMDC) alleging they

violated his Eighth and Fourteenth Amendment rights by (1) unlawfully confining

him in administrative segregation for seventeen years, (2) denying him a

classification hearing in accordance with New Mexico law while incarcerated in

California, (3) failing to comply with the ICC and to classify him under New

Mexico laws, (4) denying him a grievance appeal, (5) denying him recreation

while incarcerated in California and (6) denying him access to the courts by

denying him access to legal materials from New Mexico. The district court

dismissed the complaint. We affirmed. Garcia v. LeMaster, 439 F.3d 1215, 1216

(10th Cir. 2006) (Garcia I). We concluded Garcia’s claims concerning his

treatment in the California prison (his placement in administrative segregation,

his security classification and the denial of recreation) could only be addressed by

California officials and therefore Garcia brought his claim in the wrong court and

against the wrong defendants. Id. at 1217-18. To the extent he was challenging

his incarceration in administrative segregation in New Mexico (prior to his
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transfer to California), his claim was barred by New Mexico’s three-year statute

of limitations for civil rights actions. Id. at 1217 n.3. We further concluded

Garcia was not entitled to classification procedures pursuant to New Mexico law

or to a hearing by New Mexico officials because (1) the ICC did not create a

liberty interest protected by due process, (2) application of California procedures

to out-of-state inmates housed in California prisons does not impose an atypical

or significant hardship on them and (3) the ICC does not require a receiving state

to administer the classification and recreation rules of a sending state. Id. at

1218-20.

On January 9, 2006, Garcia filed the current lawsuit against Hoover,

Shanks, Perry, Gilbert Garcia and six other current and former NMDC officials,

as well as three John Doe defendants representing three former NMDC officials.

In his eighty page complaint (excluding exhibits), he alleged sixteen claims for

relief including conspiracy under 42 U.S.C. §§ 1985 and 1986 and violations of

his First, Eighth, and Fourteenth Amendment rights, as well as violations of

various state statutory and constitutional provisions. The district court sua sponte

dismissed Garcia’s complaint under 28 U.S.C. § 1915(e)(2) and Rule 12(b)(6) of

the Federal Rules of Civil Procedure on res judicata, failure to state a claim and

statute of limitations grounds. His subsequent motion to reconsider was also

denied.
 In 2005, Garcia filed a civil rights lawsuit against various California 3

prison officials in the Northern District of California alleging similar claims to

the ones raised in the current action. See Garcia v. Schwarzenegger (Case No.

05-4009). The status of that case is unclear.

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We review de novo the district court’s dismissal of Garcia’s complaint. 

Perkins v. Kan. Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). We

agree with the district court that Garcia’s claims against (at least) Hoover,

Shanks, Perry and Gilbert Garcia are barred by res judicata/claim preclusion. 

“Res judicata generally applies when there is a final judgment on the merits

which precludes the parties or their privies from relitigating the issues that were

decided or issues that could have been raised in the earlier action. A claim is

barred by res judicata when the prior action involved identical claims and the

same parties or their privies. ” Frandsen v. Westinghouse Corp., 46 F.3d 975,

978 (10th Cir. 1995) (citation omitted) (emphasis added). All of Garcia’s claims

against these defendants were previously litigated or should have been raised in

his previous lawsuits. 

Even assuming the remaining defendants are not in privy with the above

defendants, Garcia’s claims still fail. As we stated in Garcia I, Garcia’s claims

concerning his current classification and conditions of confinement in the Pelican

Bay State Prison are not actionable against these New Mexico defendants. 439 3

F.3d at 1218-19. To the extent Garcia is complaining about his placement in

administrative segregation or transfers to an out-of-state prison while confined in
 Garcia’s main argument against the application of res judicata and the 4

statute of limitations is that he first learned in 2004 (in the defendant’s motion to

dismiss in Case No. CV-03-1119) that the defendants claimed he was placed in

voluntary administrative segregation after his sentence was commuted in 1986.

He contends this claim is false and this error has resulted in him being placed in

involuntary administrative segregation since that time. Assuming Garcia’s

assertion is true, there is no evidence Garcia’s subsequent placements in

involuntary administrative segregation were the result of defendants’ erroneous

belief. Moreover, nothing prevented Garcia, after receiving the defendants’

motion to dismiss, from seeking to amend his complaint in Case No. CV-03-1119

to raise the issue.

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the New Mexico prison system, his claims are barred by New Mexico’s three-year

statute of limitations for civil rights actions. Id. at 1217 n.3 (citing N.M. STAT. §

37-1-8). Lastly, Garcia’s assertion he is the subject of a continuing violation by

these defendants fails because any continuing violation by them ended when he

was transferred to California in 1994.4

AFFIRMED. Garcia is reminded he must continue making payments until

the entire filing fee is paid.

ENTERED FOR THE COURT

Terrence L. O’Brien

Circuit Judge