ORDER and FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

I. Introduction

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action proceeds on plaintiff's First Amended Complaint (FAC), against sole defendant C. Davis, a librarian at High Desert State Prison (HDSP), on claims that defendant, acting in retaliation, was deliberately indifferent to plaintiff's safety. ECF No. 14. This action is referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).

Currently pending is defendant's motion (ECF No. 33) to dismiss this action on the ground that plaintiff's claims are barred by application of res judicata. Defendant seeks, alternatively, the dismissal of plaintiff's claims for injunctive relief on the ground that they were mooted by his transfer from HDSP. Plaintiff filed an opposition to defendant's motion, ECF No. counsel. ECF No. 42.

For the reasons set forth herein, the court recommends that defendant's motion to dismiss this action on res judicata grounds be denied, but that plaintiff's claims for injunctive relief be dismissed as moot; in addition, the court denies without prejudice plaintiff's motion for appointment of counsel.

II. Background

Plaintiff filed his initial complaint in this action on August 29, 2014,1 ECF No. 1, and the court dismissed the complaint with leave to amend. ECF No. 9. Plaintiff filed his FAC on January 17, 2015. ECF No. 14. Pursuant to screening the FAC under 28 U.S.C. §1915A, this court recounted plaintiff's allegations as follows, ECF No. 17 at 3 (internal citations omitted):

The court found that the FAC states claims for retaliation and deliberate indifference/ failure to protect against defendant Davis based on her alleged enlisting of other inmates to intimidate and/or harm plaintiff in response to his efforts to access the HDSP law library and provide legal assistance to other inmates. ECF No. 17 at 3. The court found that the FAC does not state a claim for denial of access to the courts because it does not allege that plaintiff suffered any actual legal injury. See id. at 3-7. Therefore, plaintiff's allegations that defendant Davis threatened to take away his PLU status, denied him access to the library, or obtained the cooperation of other prison officials to limit his access to the library, do not state a claim for relief.2 It is only defendant's alleged enlisting of other inmates to intimidate and/or injure plaintiff that supports plaintiff's claims for retaliation and failure to protect.

Defendant now informs the court that, the day before plaintiff commenced the instant action, he filed a related case against defendant Davis in the Lassen County Superior Court (Case No. JC58661). Defendant has provided a copy of plaintiff's complaint in his state court action, filed by plaintiff on August 28, 2014, see n.1, supra, although file-stamped by that court on October 1, 2014. See ECF No. 33-2 at 5-11 (Df. Ex. A); see also ECF No. 39-1 at 12-8 (Pl. Ex. A). Defendant has also provided a copy of the state court's January 23, 2015 order sustaining defendant Davis' demurrer without leave to amend.3 See ECF No. 33-2 at 13-4 (Df. Ex B). In addition, plaintiff has provided a portion of defendant's motion in support of her demurrer in plaintiff's state court action. See ECF No. 39-1 at 20-1 (Pl. Ex. B). The court takes judicial notice of these documents.4

The form portion of plaintiff's state court complaint indicates that it was a limited civil action for damages (seeking between $10,000 and $25,000) for personal injury based on an intentional tort theory. See ECF No. 33-2 at 5-7. The body of the complaint sought "compensatory, emotional and punitive damages" based on defendant's alleged promulgation of "untrue defamatory statements going directly to Plaintiff's character and standing as a reputable Activist and Lobbyist for Prisoner' Rights and Reform." Id. at 8. Plaintiff alleged that on April 4, 2010, defendant "attacked Plaintiff's character" when she made the following statements to him while in the library and in the presence of other inmates, id. at 9-10:

In sustaining defendant's demurrer, the superior court ruled in pertinent part, id. at 13-4:

Defendant contends in her motion before this court that plaintiff's federal action is barred by res judicata because "[t]he allegations in both cases [state and federal] revolve around threats from Defendant Davis regarding Plaintiff's PLU status, and the ensuing contact from other inmates, allegedly orchestrated by Davis. Plaintiff has already litigated the same circumstances, and lost on the merits." ECF No. 33-1 at 4.

In response, plaintiff asserts that the claims pending in this case have "never been adjudicated in any prior action." ECF No. 39 at 1. Plaintiff explains that his state action was limited to his defamation claim against defendant Davis (clarifying "wherein it was alleged she defamed plaintiff's character in promulgating statements in a crowded library, i.e. she proclaimed that plaintiff charged large sums of money for his aid"), and did not involve "the fact the defendant threatened to take away plaintiff's PLU [status]" or "deal with any threats of violence or actual injury as this case does." Id. at 2, 4. Plaintiff further asserts that "the Lassen County case and this instant [case] were engendered out of two different, separate, and distinct actions taken by defendant, and occurring days apart on two different dates." Id. at 5. Plaintiff identifies April 4, 2014 as the date of defendant's alleged defamatory statements challenged in plaintiff's state court case; April 10, 2014 as the date of "the actual physical fight inside of B-4 Building in which plaintiff was shot with the 40 mm;" and April 12, 2014 as the date he was "accosted by Inmates Lancaster and Ramirez outdoors on the Rec Yard."6 Id. at 5, see also id. at 6-10. In her response, defendant again asserts that all of plaintiff's claims "hinge[] on Defendant Davis' alleged threats regarding his PLU status;" "involve dates `on or about [April 1, 2014];'" and therefore "should and could have been brought in a single action," thus barring plaintiff's federal action by res judicata. ECF No. 40 at 2.

III. Legal Standards

A. Legal Standards for Dismissal Under Rule 12(b)(6)

To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure, a complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept as true the allegations of the complaint, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and construe the pleading in the light most favorable to plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts that may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and similar papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). However, "[a] motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6) must be treated as a motion for summary judgment under Federal Rule of Civil Procedure 56 if either party to the motion to dismiss submits materials outside the pleadings in support or opposition to the motion, and if the district court relies on those materials." Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

B. Legal Standards for Applying Res Judicata

The doctrine of res judicata, or claim preclusion, "bars repetitious suits involving the same cause of action once a court of competent jurisdiction has entered a final judgment on the merits." United States v. Tohono O'Odham Nation, 563 U.S. 307, 315 (2011) (citation and internal quotation marks omitted). The date of the initial judgment controls the application of res judicata. Guild Wineries & Distilleries v. Whitehall Co., 853 F.2d 755, 761 (9th Cir. 1988).

Under the Full Faith and Credit Statute, 28 U.S.C. § 1738, a federal court must accord 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. See Migra v. Warren City School District Bd. of Educ., 465 U.S. 75, 81 (1984) (state court final judgments are entitled to claim preclusion in federal Section 1983 actions); accord, Allen v. McCurry, 449 U.S. 90, 103-04 (1980) (state court final judgments are entitled to issue preclusion in federal § 1983 actions); Clark v. Yosemite Community College District, 785 F.2d 781, 788 n.9 (9th Cir. 1986) (collecting cases).

In California, "the doctrine of res judicata has two aspects. `First, where the causes of action and the parties are the same, a prior judgment is a complete bar in the second action. This is fundamental and is everywhere conceded. [¶] Second, where the causes of action are different but the parties are the same, the doctrine applies so as to render conclusive matters which were decided by the first judgment.'" Taylor v. Hawkinson, 47 Cal.2d 893, 895 (1957) (quoting Sutphin v. Speik, 15 Cal.2d 195, 201 (1940)).

The contours of a "cause of action" under California law are determined by application of the "primary rights doctrine." Under this doctrine a "cause of action" is defined as: "(1) a primary right possessed by the plaintiff, (2) a corresponding primary duty devolving upon the defendant, and (3) a harm done by the defendant which consists in a breach of such primary right and duty." Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (citations and internal quotation marks omitted). "Under California law, the claim arises from the harm suffered, as opposed to the particular theory of the litigant. Even when multiple legal theories for recovery exist, one injury gives rise to only one claim for relief." Eichman v. Fotomat Corp., 759 F.2d 1434, 1438 (9th Cir. 1985) (citing Slater v. Blackwood, 15 Cal.3d 791, 794-95 (1975)).

In the related doctrine of collateral estoppel (also known as issue preclusion), "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, supra, 449 U.S. at 94. "A prior judgment operates as a bar against a second action upon the same cause, but in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." Taylor, supra, 47 Cal. 2d at 895-96 (quoting Sutphin, 15 Cal. 2d at 202) (further internal citation and quotation marks omitted).

IV. Analysis

Although plaintiff's state and federal actions involve the same parties, plaintiff's state court action was limited7 to his state law defamation claim arising from defendant's alleged conduct on April 4, 2014. Under California law, defamation is injury to one's reputation. Shively v. Bozanich, 31 Cal.4th 1230, 1242 (2003) (citing Cal. Civ. Code § 44). "Defamation `involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.'" Price v. Stossel, 620 F.3d 992, 998 (9th Cir. 2010) (quoting Gilbert v. Sykes, 147 Cal.App.4th 13, 27 (2007) (internal citation and quotation marks omitted)).

Applying a primary rights analysis, plaintiff's state court cause of action asserted the violation of his common law right to be free from defamation when defendant Davis made allegedly false statements to him on April 4, 2014, in the presence of other inmates. Plaintiff alleged injury to his reputation based on defendant's statements that plaintiff used his PLU status to "drum up business" from other inmates and charge them "large amounts of money." Therefore, res judicata precludes plaintiff relitigating any cause of action — and any necessarily related claim or defense — premised on defendant Davis' alleged defamatory statements to plaintiff on April 4, 2014 and plaintiff's allegedly resulting injury to his reputation.

In the present case, plaintiff alleges different factual predicates to support federal claims that were neither pled nor addressed in the state court.8 More importantly, plaintiff's state and federal claims allege different injuries as a result of different alleged wrongs and therefore assert different primary rights. As set forth by the court in Ewing v. Superior Court of California, 90 F.Supp.3d 1067, 1076 (S.D. Cal. 2015) (citations and internal quotation marks omitted):

In the instant case, plaintiff alleges that defendant, acting in retaliation against him, actively enlisted the assistance of other inmates to verbally and physically intimidate plaintiff, causing him emotional and physical injury. These alleged wrongs violated plaintiff's rights to be free from harm by other prisoners,9 and from conditions of confinement based on the retaliatory motive of a prison official.10 These rights, grounded in federal constitutional law, are clearly distinct from plaintiff's right under state tort law to be free of injury to his reputation. See Daniels v. Williams, 474 U.S. 327, 333 (1986) (the United States Constitution and traditional tort law "do not address the same concerns"); see also Paul v. Davis, 424 U.S. 693, 715 (1976) (available state law remedy for cause of action for defamation irrelevant to determination whether there is a cause of action under Section 1983) (dicta)).

Moreover, the dates of defendant's challenged conduct are different in plaintiff's state and federal actions. Plaintiff's state action challenged defendant's alleged statements to plaintiff on April 4, 2014. Plaintiff's federal action alleges that defendant engaged in discussions with other inmates on undisclosed dates to enlist them to harass, intimidate and/or physically injure plaintiff, resulting in plaintiff's interactions with those inmates on April 1 (or 10), 2014 and April (or May) 12, 2014. See n.6, supra. Plaintiff's federal claims do not arise from or challenge defendant's statements to plaintiff on April 4, 2014.

For these reasons, this court finds that plaintiff's right to be free from defamation implicates a different primary right and cause of action than those sought to be vindicated in plaintiff's federal action on his civil rights claims for retaliation and failure to protect.

This conclusion is consistent with the decision of the Ninth Circuit Court of Appeals in Brodheim v. Cry, supra, 584 F.3d 1262, which reversed the district court's finding that plaintiff's federal claims were barred by res judicata. In his state court action, plaintiff, a state prisoner, challenged the fairness of a prison policy authorizing the Appeals Coordinator to review inmate staff complaints against the Coordinator, asserting that this policy effectively deprived plaintiff of his statutory and regulatory rights to obtain meaningful review of his complaints. In his federal action, plaintiff alleged, in pertinent part, retaliatory conduct by the Appeals Coordinator in the form of issuing a written "warning" to plaintiff in response to an interview request. The Court of Appeals found that "[t]he two harms here — lack of meaningful review, a procedural harm, and a retaliatory chilling of constitutional substantive rights — are distinct. They were caused at different times, by different acts, and by different actors. In the state action, the alleged harm was inflicted by the Warden in 2003, when he allowed Cry [the Appeals Coordinator] to review grievances Brodheim filed against Cry. In Brodheim's federal complaint, on the other hand, the actual alleged harm was inflicted by Cry himself when he placed the handwritten warning on Brodheim's interview request form in 2001." Brodheim, 584 F.3d at 1268-69. The Court of Appeals concluded that "[b]ecause the claims involved different causes of action under the primary rights theory, . . . the federal action was not barred by the state court's decision." Id. at 1269.11

Similarly, in the instant case, plaintiff's state law defamation claim and his federal constitutional claims for retaliation and failure to protect implicate different primary rights and causes of action. Therefore, plaintiff's instant federal claims are not barred by plaintiff's state court action.

Defendant more broadly contends that, because plaintiff could have brought all of his claims against her in his state court action, his failure to do so bars his federal action as a matter of res judicata. See, e.g., Sutphin, supra, 15 Cal. 2d at 202 ("[a] party cannot by negligence or design withhold issues and litigate them in consecutive actions"). This contention is also without merit.

There is no question that plaintiff's First and Eighth Amendment claims were not raised in his state court action, although his federal claims had then accrued.12 Nevertheless, "despite general statements found in many cases that a prior judgment between the same parties is conclusive not only as to issues actually determined but as to those which might have been determined, it should be emphasized that, where the doctrine of res judicata is applied in its secondary aspect as a collateral estoppel rather than in its primary sense as a merger or bar, the effect of the prior judgment is confined only to those issues in the second action which were actually litigated in the first." Saunders v. New Capital for Small Businesses, Inc., 231 Cal.App.2d 324, 331 (1964) (emphasis added) (collecting cases). "The doctrine of res judicata has a double aspect. A former judgment operates as a bar against a second action upon the same cause, but, in a later action upon a different claim or cause of action, it operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action." Todhunter v. Smith, 219 Cal. 690, 695 (1934) (emphasis added) (collecting cases). Similarly, in Brodheim, the Court of Appeals rejected defendants' argument that "any claims that Brodheim could have brought in his state court claim are barred by res judicata." Brodheim, 584 F.3d at 1268 n.2. The court reasoned that "under California law, not all claims that may have been brought in an earlier case are barred in a later action; rather only those that derive from the same primary right are precluded." Id. (citing Grisham v. Philip Morris U.S.A., Inc., 40 Cal.4th 623, 641 (2007)).

These cases demonstrate that res judicata, in the form of collateral estoppel, does not apply to newly alleged factual or legal contentions that were not relevant to the adjudication of the parties' rights in the earlier case, even if the circumstances underlying the new allegations were then known to the parties. See Henn v. Henn, 26 Cal.3d 323, 331 (1980) (declining to apply res judicata to bar plaintiff's claim to a community property interest in her ex-spouse's military pension despite failing to adjudicate the matter in the prior dissolution proceedings). Here, there is no fact, claim or defense pertinent to plaintiff's defamation claim that is also pertinent to plaintiff's constitutional claims. Even if plaintiff's state and federal claims rested on some common facts, "the significant factor" under California's primary rights theory "is the harm suffered; that the same facts are involved in both suits is not conclusive." Agarwal v. Johnson, 25 Cal.3d 932, 954-55 (1979) (citations omitted), disapproved on another point in White v. Ultramar, Inc., 21 Cal.4th 563, 574 n.4 (1999). This is not a case where plaintiff has asserted different legal theories or requests for relief based on the same primary right asserted in his state court action. Cf., Slater, supra, 15 Cal. 3d at 795. Nor is this a situation where different primary rights were allegedly violated by the same wrongful conduct. Cf., Branson v. Sun-Diamond Growers, 24 Cal.App.4th 327, 342 (1994). Judgment on plaintiff's federal claims will not nullify or otherwise impact the state court's determinations and judgment. Cf., Manufactured Home Cmtys., Inc. v. City of San Jose, 420 F.3d 1022, 1031-32 (9th Cir. 2005) (plaintiff's state and federal court claims involved "a single primary right").

For these several reasons, this court finds that the instant action involves different primary rights and different causes of action than addressed by plaintiff in his state court action. Therefore, the court finds that plaintiff's instant constitutional claims are not precluded by res judicata, either as a complete bar or in the form of collateral estoppel. Accordingly, defendant's motion to dismiss this action should be denied.

V. Claims for Injunctive Relief

Defendant contends that plaintiff's claims for injunctive relief — specifically, his requests to maintain access to HDSP's law library, and to be free from intimidation and physical injury by other inmates13 — were mooted by plaintiff's transfer from HDSP in July 2015. Review of the court's docket indicates that plaintiff was initially transferred from HDSP to California State Prison-Sacramento (CSP-SAC) in July 2015. See ECF No. 38. Plaintiff was then transferred from CSP-SAC to California State Prison Los Angeles County (CSP-LAC) in September 2015. See ECF No. 43.

Plaintiff filed his opposition to defendant's motion while he was incarcerated at CSP-SAC. He then asserted that his claim for injunctive relief "is not moot due to plaintiff's being transferred as Sergeant Kile, and C/O Kirkland from HDSP are now at CSP-SAC and still having ties to officers at HDSP . . . [r]etaliating against plaintiff." ECF No. 39-1 at 2.

As a general rule, prisoners who have been transferred to a different prison may not sue for injunctive relief based on conditions of confinement at the prison from which they were transferred because their challenges are mooted upon their transfer. See, e.g., Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995), and cases cited therein. An exception may be found if a claim is "capable of repetition, yet evading review," defined generally as "limited to extraordinary cases in which (1) the duration of the challenged action is too short to be fully litigated before it ceases, and (2) there is a reasonable expectation that the plaintiff will be subjected to the same action again." C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011) (citations and internal quotation marks and punctuation omitted), cert. denied, 132 S.Ct. 1566 (2012).

Plaintiff's allegations meet neither of these preconditions for applying an exception to the mootness doctrine. Plaintiff's allegations do not explain how the transfer of prison officials Kile and Kirkland from HDSP to CSP-SAC perpetuated defendant Davis' alleged retaliation against plaintiff which, according to the FAC, was implemented only by HDSP inmates. Absent such linkage, any newly alleged retaliatory conduct by Kile and Kirkland would give rise new claims that must be separately grieved. Indeed, plaintiff's allegations appear to support potentially new and independent claims against Kile and Kirkland, see e.g. Pl. Supp. Stmt., ECF No. 41 at 2-3, et seq. (alleging retaliatory conduct by these officials "only after I reported and complained about Kirkland's and Kile's reproaching me"), apparently so perceived by plaintiff who sought appropriately to separately grieve these matters at CSP-SAC, see id. at 10-25. Thus, these matters appear to have no significant relationship to defendant Davis' alleged conduct challenged in this action. More importantly, plaintiff was transferred from CSP-SAC within two months and remains incarcerated elsewhere.

For these reasons, the court finds that plaintiff's requests for injunctive relief in this action were mooted by plaintiff's transfer from HDSP in July 2015, and hence away from the physical presence of defendant Davis and the inmates with whom she allegedly cooperated.

Accordingly, this action should proceed only on plaintiff's pursuit of damages.

VI. Motion for Appointment of Counsel

While incarcerated at CSP-SAC, plaintiff submitted a request for appointment of counsel. Plaintiff states that he is indigent, has only a tenth grade education, and has no legal training. Plaintiff avers that he has limited access to legal materials because the CSP-SAC library is small and the library provides services to more than 1000 prisoners. Plaintiff asserts that this action is meritorious and presents complex legal issues that would be more effectively addressed by legal counsel, who could also more competently and efficiently conduct discovery and develop crucial facts.

The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. The burden of demonstrating exceptional circumstances is on the plaintiff. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

In the present case, the court finds that plaintiff has not met his burden of demonstrating exceptional circumstances supporting the appointment of counsel. The grounds asserted — indigence, limited general education, no formal legal training and limited access to the law library — are factors shared by most prisoners. Moreover, plaintiff's pleading and briefing to date demonstrate that he is capable of articulating his claims pro se; plaintiff has also informed the court that he assists other inmates in the preparation of their legal filings. Finally, this case is not sufficiently developed to conclude that plaintiff is likely to succeed on the merits.

For these reasons, plaintiff's motion for appointment of counsel will be denied without prejudice.

VII. Conclusion

For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff's motion for appointment of counsel, ECF No. 42, is denied without prejudice.

Further, IT IS HEREBY RECOMMENDED that defendant's motion to dismiss, ECF No. 33, be granted in part and denied in part, as follows:

1. Defendant's motion to dismiss this action based on principles of res judicata should be denied.

2. Defendant's motion to dismiss plaintiff's claims for injunctive relief should be granted.

3. This action should proceed on plaintiff's pursuit of damages premised on his First and Eighth Amendment claims against defendant Davis.

These findings and recommendations are submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).