D.C. No. CV-93-1594-VRW. Amended Opinion of March 29, 1996.
The memorandum Disposition filed March 29, 1996 is amended as follows:
At end of Section 1, add the following paragraph:
In the present action, McHenry raises a facial challenge to the park permit ordinance. He argues on appeal that the earlier cases should not operate as res judicata because the present action arises out of two more recent arrests, on April 30, 1992 and June 2, 1993. McHenry alleges in his First Amended Complaint ("complaint") that his April 30, 1992 arrest occurred on Market Street in San Francisco while he was demonstrating against police violence. He alleges that his June 2, 1993 arrest occurred while he was leaving San Francisco's Civic Center. McHenry does not allege in his complaint that either of these arrests were for violating the park permit ordinance. Rather, he alleges that those arrests were in furtherance of a conspiracy to deprive him of his constitutional right to free expression. Central to McHenry's conspiracy theory are his numerous denials of park permit applications and arrests for violating the park permit ordinance. According to his complaint, these denials and arrests occurred between 1988 and 1991.
In Section III.A, change the last paragraph to read:
The transactional nucleus of facts in this case consists of the lengthy history of this dispute, as recounted in McHenry's complaint. He does not allege that either the April 30, 1992 or June 2, 1993, arrests were for violating the park permit ordinance. The only plausible connection between these arrests and the park permit ordinance is the ongoing dispute between McHenry and the city--McHenry's alleged conspiracy. Because he could have raised the facial challenge to the park permit ordinance in the earlier federal court action which arose out of the same transactional nucleus of facts, McHenry's claim is barred by res judicata.
In addition, I propose the following minor clarifications:
Sec. I, P 4, line 4 Change "statute" to "park permit ordinance"
Sec. III.A, II 4, line 4 Change "First Amended Complaint" to "complaint"
With the above amendments the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing is rejected.
The full court has been advised of the suggestion for rehearing en banc and no active Judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.
Petition for rehearing is DENIED and suggestion for rehearing ...