Unpublished Disposition, 936 F.2d 577 (9th Cir. 1991)

MEMORANDUM^** 

Kenneth Gage, a California state prisoner, appeals pro se the district court's grant of summary judgment in favor of the Milpitas Police department in his 42 U.S.C. § 1983 action. Gage contends that the Milpitas Police Department lost, destroyed, and failed to preserve exculpatory evidence from the crime scene that was crucial to his defense for which he seeks damages.

The section 1983 action was filed while Gage was awaiting trial on a murder charge. He was subsequently convicted in California state court. While the section 1983 action was pending, Gage filed a 28 U.S.C. § 2254 habeas corpus petition in California state court. In the habeas corpus petition, Gage raised the same issue regarding the loss of allegedly exculpatory evidence to achieve a new trial.

After exhausting his state remedies, Gage filed the habeas corpus petition in federal district court. The habeas corpus and section 1983 actions were both assigned to Judge Schwarzer who subsequently dismissed Gage's habeas corpus petition on the merits, and which this court has upheld on appeal. See Gage v. Borg. No. 89-16191 (9th Cir. Apr. --, 1991).

As to the section 1983 action, Judge Schwarzer, sua sponte, issued an order that Gage should show cause within thirty days why summary judgment should not be granted in favor of the Milpitas Police Department. Following receipt of Gage's response, Judge Schwarzer granted summary judgment.

Gage appeals the district court's order granting summary judgment. Three specific issues are raised: 1) did the district court abuse its discretion in moving for summary judgment sua sponte: 2) did the district court err in granting summary judgment; and 3) was Gage entitled to appointed counsel at the district court level. We affirm in all respects.

MOVING FOR SUMMARY JUDGMENT SUA SPONTE

A district court has the power to grant summary judgment sua sponte, as long as the losing party was on notice that it had to come forward with all of its evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). In this instance, the district judge provided Gage with thirty days to show why summary judgment should not be granted. Accordingly, we hold that the court did not abuse its discretion in moving for summary judgment sua sponte.

MERITS OF SECTION 1983 ACTION

Gage raises the same issue in his section 1983 action that was decided in his habeas corpus petition. In both actions, he challenged the failure of the police to collect and preserve allegedly exculpatory evidence. In the habeas corpus proceeding, the district court specifically held that the evidence was not exculpatory. This court has affirmed the district court's decision.

The doctrine of collateral estoppel precludes Gage from bringing his section 1983 action. Where the identical issue was actually litigated and necessarily decided after a full and fair opportunity for litigation in the habeas corpus proceeding, as in this case, petitioner is collaterally estopped from raising the claim again in another action. See Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (listing elements of collateral estoppel); see also 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4416, at 137-38 (1981). In light of our ruling in the habeas corpus action that the lost evidence could not have been exculpatory, Gage did not sustain any damage from the loss. Thus, the district court correctly granted summary judgment in favor of the Milpitas Police Department.

DENIAL OF MOTION TO APPOINT COUNSEL

Under 28 U.S.C. § 1915(d), the district court has discretion to appoint counsel to represent an indigent civil litigant. Counsel should be appointed under section 1915(d) only in "exceptional circumstances." See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). "A finding of exceptional circumstances requires an evaluation of both 'the liklihood of success on the merits (and) the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Id.

In this instance Gage failed to show a liklihood of success in his section 1983 action. Therefore, we hold that the district court did not abuse its discretion in denying Gage's request to have counsel appointed.

Gage argues that the district court at one point indicated a willingness to appoint counsel but later failed to do so. Tentative indications, on which there has been no substantial reliance, are not harnesses into which a judge must thereafter fit to avoid reversals. The district court has the discretion to resolve these issues as the case unfolds. There is no abuse of discretion here.

AFFIRMED.