
    Timothy William HISER, Plaintiff-Appellant, v. Richard H. FRANKLIN; Frank Sauser; Al Terrault, Defendants-Appellees.
    No. 94-35749.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 7, 1996.
    Filed May 2, 1996.
    Withdrawn Sept. 3, 1996.
    Decided Sept. 3, 1996.
    
      Steven L. Pevar, American Civil Liberties Union, Denver, Colorado, for plaintiff-appellant.
    John K. Bodick, Assistant Attorney General, Juneau, Alaska, for defendants-appellees.
    Before FLETCHER, JOHN T. NOONAN, Jr. and RYMER, Circuit Judges.
   ORDER

The majority opinion and concurring and dissenting opinion filed May 2,1996 are withdrawn, and the enclosed opinions are substituted in their place. As the appellee’s petition for rehearing previously has been denied and the suggestion for rehearing en banc rejected as well, no further petitions for rehearing or rehearing en bane will be entertained. The mandate shall issue forthwith,

OPINION

FLETCHER, Circuit Judge.

Timothy Hiser, an inmate in the Alaska Department of Corrections’ Fairbanks Correctional Center (“FCC”), appeals from the district court’s grant of summary judgment in favor of defendant prison officials (“defendants” or “the State”). Hiser sought equitable relief and damages contending that defendants refused to photocopy his legal documents, thereby denying him access to the courts in violation of the Constitution. The district court did not reach the merits of the claim, instead granting summary judgment on the grounds of res judicata. The court reasoned that a class of all Alaska inmates, present and future, had entered into a comprehensive consent decree in state court in 1990 dealing with prison conditions, Cleary v. Smith, 3AN-81-5274 Civ. (3d Jud. Dist.Alaska); the consent decree devoted approximately nine pages to various issues related to inmates’ “Access to the Courts” (although it did not address photocopying); and therefore Hiser’s claim was or could have been litigated in the previous class action and is barred by res judicata.

We disagree. Because the issue of photocopying was never adjudicated in the Cleary litigation, Hiser’s claims are not barred by issue preclusion. Neither are they barred by claim preclusion. Hiser’s damages and individual injunction relief claims could not have been brought in the Cleary litigation, as the injury Hiser alleges did not occur until 1992 when his request for photocopying was denied. Although Hiser’s class action challenge to the prison’s photocopying policy could have been brought in the Cleary litigation, it nevertheless is not barred because it is based on a separate set of operative facts. We have jurisdiction under 28 U.S.C. § 1291 and reverse and remand.

I.

On August 3, 1993, after exhausting his administrative remedies, Hiser filed a section 1983 complaint in United States District Court for the District of Alaska contending that, from 1992 to the present, defendants violated his constitutional right of access to the courts under Gluth v. Kangas, 951 F.2d 1504, 1510 (9th Cir.1991) and Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) by refusing to photocopy his legal documents. He sought declaratory and injunctive relief and damages. He asserted that defendants refused three requests by him to photocopy legal documents. His complaint alleged that inmates at FCC were “routinely denied photocopies of needed legal materials,” that he himself “has on several occasions been denied needed copies of legal materials,” and that the failure to provide copies “has caused plaintiff to suffer difficulty and harm in pursuing his legal claims.” To his complaint, Hiser attached, among other things, a grievance appeal response stating that “FCC will not make [copies] for you as you have no pending court case involved with this subject,” and a response from defendant Franklin stating that “[w]e are under no obligation to photocopy anything, however, we do so if there is a valid reason. The burden is on you to demonstrate this reason.”

The State moved for summary judgment on the grounds of res judicata, contending that Hiser’s photocopying claim “was or could have been raised” in Cleary v. Smith, 3AN-81-5274 Civ. (3d Jud. Dist.Alaska). Cleary was a state class action lawsuit brought on behalf of all present and future Alaska inmates. It sought (only) declaratory and injunctive relief against the Alaska Department of Corrections to redress a variety of prison conditions. It was filed in 1981. The final settlement agreement was approved by the court on September 21, 1990. The agreement is 88 pages plus appendices, with approximately nine pages devoted to topics related to access to the courts, such as materials in the law library and legal mail. No mention of photocopying is made. Even though the issue of photocopying was not addressed in the Cleary litigation, the magistrate judge recommended that summary judgment be granted on the grounds of res judicata. He concluded that there is no independent constitutional right to photocopying and that any such right is a component of the right to access to the courts, which was comprehensively litigated. The district judge agreed with the magistrate judge’s reasoning and entered summary judgment in favor of the State. Hiser timely appealed.

II.

The district court’s grant of summary judgment on res judicata grounds is reviewed de novo. International Union of Operating Engineers-Employers Const. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993).

III.

The preclusive effects of former litigation are commonly referred to as “res judicata.” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984). “Res judicata is often analyzed further to consist of two preclusion concepts: ‘issue preclusion’ and ‘claim preclusion.’ ” Id.

Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided. See Restatement, supra, § 27. This effect also is referred to as direct or collateral estoppel. Claim preclusion refers to the effect of a judgment in foreclosing relit-igation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar. See id., Introductory Note before § 24.

Id. .

To determine the preclusive effect of the Cleary litigation on Hiser’s photocopying claim, this court applies Alaska’s res judicata law. See id. at 81, 104 S.Ct. at 896 (“It is now settled that a federal court must give to 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.”). Alaska generally follows the Restatement (Second) of Judgments. See State v. Smith, 720 P.2d 40, 41 (Alaska 1986); Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986).

A.

Hiser’s claims are not barred by issue preclusion. The Alaska Supreme Court has expressly said that “[t]he issue of photocopying was not raised in regard to the [final settlement agreement “FSA” in Cleary ] and is not properly raised as a challenge to the FSA” Hertz v. Cleary, 835 P.2d 438, 440 (Alaska 1992). Issue preclusion only bars the relitigation of issues explicitly litigated and necessary to the judgment. Since the issue of photocopying was not adjudicated in the Cleary litigation, issue preclusion does not bar consideration of Hiser’s photocopying claim. The State essentially acknowledges this, explaining that it is relying on the “claim preclusion,” rather than “issue preclusion,” prong of res judicata.

B.

Neither are Hiser’s claims barred by claim preclusion. In Hoffman Const. Co. v. Active Erectors & Installers, Inc., 969 F.2d 796 (9th Cir.1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1258, 122 L.Ed.2d 656 (1993), this court noted that in Alaska, “res judicata covers ‘relevant claims that could have been raised in the prior case,’ but were not. A mere change in the legal theory asserted cannot revive an already barred action.” Id. at 799 (quoting DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987), cert. denied, 484 U.S. 919, 108 S.Ct. 277, 98 L.Ed.2d 239 (1987)). The State asserts that Hiser’s photocopying claim is barred because it “could have been raised in Cleary.”

1.

Hiser’s claims for damages and individual injunctive relief are clearly not barred by res judicata because they could not have been brought in the Cleary litigation. Hiser was not even incarcerated at the time of the Cleary settlement agreement. His claims did not accrue until 1992-two years after the settlement agreement-when he requested and was denied photocopying. Therefore, Hiser’s individual claims for damages and injunctive relief are not barred. Accord 18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4455 (1995 supp.) (“Another obvious limitation on class action preclusion is that the judgment does not bar an individual claim based on events occurring after the judgment.”).

Moreover, the general rule is that a class action suit seeking only declaratory and injunctive relief does not bar subsequent individual damage claims by class members, even if based on the same events. In fact, “every federal court of appeals that has considered the question has held that a class action seeking only declaratory or injunctive relief does not bar subsequent individual suits for damages.” In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 892 (E.D.Mich.1983); see, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030-32 (11th Cir.1993) (“It is clear that a prisoner’s claim for monetary damages or other particularized relief is not barred if the class representative sought only declaratory and injunctive relief, even if the prisoner is a member of a pending class action.”); Wright, Miller, & Cooper, Federal Practice and Procedure: Jurisdiction § 4455 (1981 and 1995 Supp.) (collecting cases). In Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), the Supreme Court held that the plaintiffs’ Title VII damages suit against their employer was not barred by the res judicata effect of a previous Title VII class action-even though the plaintiffs had been class members and witnesses in the previous action and thus could have brought their damages claim in that case. Finally, a leading treatise concludes that a member of a class generally should be free to bring an individual damages claim subsequent to a class action suit for declaratory or injunctive relief:

The basic effort to limit class adjudication as close as possible to matters common to members of the class frequently requires that nonparticipating members of the class remain free to pursue individual actions that would be merged or barred by claim preclusion had a prior individual action been brought for the relief demanded in the class action. An individual who has suffered particular injury as a result of practices enjoined in a class action, for instance, should remain free to seek a damages remedy even though claim preclusion would defeat a second action had the first action been an individual suit for the same injunctive relief.

18 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 4455 (1981).

The district court’s dismissal of Hiser’s damages claim is contrary to this authority. Although these authorities do not specifically apply Alaska law, there is no Alaska case to the contrary and no reason to believe that Alaska’s law would differ. Alaska follows the Restatement; in Cooper, the Supreme Court relied on the Restatement for its holding that the class members’ subsequent individual damages claims were not barred by the previous class action lawsuit. Also, Alaska courts have relied on Wright, Miller and Cooper’s treatise for res judicata analysis. See, e.g., State v. Smith, 720 P.2d at 42 n. 2. Finally, several of the cases holding that class members’ subsequent damages claims are not barred have relied on notions of due process, which are applicable to state res judicata decisions as well. In Wright v. Collins, 766 F.2d 841, 847-49 (4th Cir.1985), for instance, the court reasoned that before a member of a class can be barred from an individual claim for damages, the class members must be given clear warning that individual claims may be lost. No such warning was given in the instant case. The court observed that a broad-gauged class complaint “should not mean that all future litigation involving harm to individual prisoners will be precluded.” Id. at 848. If every member of the class were compelled to intervene to protect his individual claims, serious questions would be raised as to the adequacy of the class representatives, and the class action would become unmanageable. Id. at 849.

As amicus points out, prison class action litigation typically seeks only declaratory and injunctive relief. The purpose of a class action is to concentrate on an issue or issues all class members have in common. If every prisoner in the state of Alaska needed to join his or her own individual damage claim to the Cleary litigation or else lose it, the action would have been unmanageable. As it is, the case took over twelve years to resolve and ended in an 88 page consent decree-without a single individual damage claim being involved. The general rule that a class action for equitable relief does not bar subsequent individual damages suits recognizes and respects this reality.

For these reasons, Hiser’s individual damages and injunctive relief claims are not barred by claim preclusion.

2.

Even though a broad challenge to the prison’s photocopying policy could have been brought in the Cleary litigation, Hiser’s class action challenge to the prison’s photocopying policy is not precluded either. Alaska res judicata law generally bars relevant claims that could have been brought in the earlier litigation. Specifically, Alaska follows the Restatement (Second) of Judgments, which forecloses “litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit.” Migra, 465 U.S. at 77, 104 S.Ct. at 894 (citing Restatement (2d) § 24, Introductory Note) (emphasis added). A matter should have been advanced in the earlier litigation if it is part of the same “transaction, or series of connected transactions, out of which the action arose.” Smith, 720 P.2d at 41 (quoting Restatement (2d) § 24). “The expression ‘transaction, or series of connected transactions,’ is not capable of a mathematically precise definition; it invokes a pragmatic standard to be applied with attention to the facts of the cases.... In general, the expression connotes a natural grouping or common nucleus of operative facts.” Restatement (2d) § 24 comment b.

The district court reasoned that Hiser’s photocopying claim was merely a subset of an “access to the courts” claim, which had previously been brought in the Cleary litigation, and was therefore barred. We do not believe that all facts related to court access are part of a “common nucleus of operative facts” and therefore create one transaction and a single claim. The concern behind claim preclusion is that a plaintiff should not be able to relitigate the same facts under a different legal theory. Id. § 24. Although Hiser’s photocopying challenge implicates the same right of “access to the courts” as was addressed in the Cleary litigation, see Bounds, 430 U.S. at 828, 97 S.Ct. at 1498; Lewis v. Casey, — U.S. -, ---, 116 S.Ct. 2174, 2179-80, 135 L.Ed.2d 606 (1996), it is based on a different set of operative facts and is not merely an alternative remedy or theory of recovery. Thus, under the Restatement’s transactional approach, Hiser’s challenge to the prison’s photocopying policy is not barred by claim preclusion.

Especially taking into account that the first action was a class action for which Hiser was an unnamed, absent class member, his claim should not be precluded. Cf. Ferguson v. Department of Corrections, 816 P.2d 134 (Alaska 1991) (“Out of concern that it is unfair to preclude a non-named class member from subsequent litigation, many courts modify the traditional res judicata tests when the initial litigation is a class action.”). Arguably, everything related to prison life could conceivably be deemed part of “a series of transactions” when a broad-based class action is brought, but if this is how claim preclusion is defined in the class action context, it would essentially make class actions obsolete. After one prisoner class action had been filed, no “related” claims could ever be filed. No responsible attorney would file a class action challenging a prison condition, because by doing so, all future claims by prisoners challenging an unconstitutional condition could be barred-even if the specific issue was never raised in the previous litigation.

The Alaska Supreme Court’s decision in Ferguson v. Department of Corrections, 816 P.2d 134 (Alaska 1991) recognizes that res judicata must be applied carefully in the class action context. In Ferguson, the plaintiff wished to challenge the Alaska Department of Corrections’ drug testing policies. The plaintiff was, like Hiser, “technically a party in the Cleary litigation,” since the Cleary litigation included all future Alaska inmates. Id. The State moved to dismiss, arguing that Cleary barred the plaintiff’s claim on the grounds of res judicata. The Department of Corrections’ drug testing policies had in fact been evaluated on erossmotions for summary judgment in Cleary. Id. at 138. Accordingly, the superior court dismissed the complaint as barred by res judicata.

The Alaska Supreme Court reversed. The court noted that a person cannot be bound by a judgment unless he has had the opportunity to be heard in opposition to the judgment. The court concluded that Ferguson had not “been fully heard on the issue of the prison’s drug testing policies.” Id. Even though the drug testing had been challenged in Cleary, it “constituted a relatively insignificant aspect of the litigation and negotiations.” Id. The court determined that “the Cleary plaintiffs did not adequately represent Ferguson’s interests as to the reliability of the EMIT test; consequently, the provisions in Cleary related to drug testing cannot be given res judicata effect.” Id. at 139. “Although concerns as to [the test’s] reliability were raised in Cleary, they were not given the careful consideration they deserve, and it would be unjust to block future consideration now.” Id.; cf. Richards v. Jefferson County, — U.S. -, -, 116 S.Ct. 1761, 1769, 135 L.Ed.2d 76 (1996) (“Because petitioners received neither notice of, nor sufficient representation in, the Bedinford litigation, that adjudication, as a matter of federal due process, may not bind them and thus cannot bar them from challenging an allegedly unconstitutional deprivation of their property.”).

Hiser’s situation is even more compelling. In Cleary, the drug testing policy was challenged-albeit in a cursory fashion. Thus, not only was Ferguson’s a related claim that could have been raised, it actually was raised. Even so, the Alaska Supreme Court determined that res judicata did not bar the claim, since “Ferguson was not fully heard on the issue.” Hiser was not heard at all on the issue of photocopying, much less “fully heard on the issue.” Accordingly, just as Ferguson’s interests in challenging the drug testing policy were not “adequately represented]” in the Cleary litigation, Hiser’s interests in challenging the photocopying policy were not “adequately represented].”

The State suggests that Ferguson is distinguishable because the Cleary plaintiffs’ attorney at the time the drug testing issue was litigated was not very good, whereas the Cleary plaintiffs’ attorney at the time of the consent decree, Mr. Volland, is excellent. We think the distinction untenable. The Alaska Supreme Court did not allow Ferguson’s case to go forward because it concluded that the plaintiffs’ attorney was incompetent. Rather, the Court allowed Ferguson’s case to go forward because the issue with which he was concerned, drug testing, had “not been given the careful consideration [it] deserved” in the Cleary litigation; thus, the Cleary plaintiffs had not adequately represented Ferguson’s interests in challenging the drug testing. Similarly, Mr. Volland may be an excellent attorney, but because the State’s photocopying policy was given no consideration in the Cleary litigation, much less “careful consideration,” the Cleary plaintiffs did not adequately represent Hiser’s interests in challenging the policy. Thus, under Ferguson, Hiser’s class action challenge to the State’s photocopying policy is not barred by res judicata.

IV.

Hiser’s photocopying claims are not barred by res judicata. We reverse and remand for further proceedings not inconsistent with this opinion.

RYMER, Circuit Judge,

concurring in part, dissenting in part:

I agree that Hiser may pursue his claim for damages, as he was not incarcerated in Alaska when Cleary was decided and the actions about which he complains did not occur until almost a year later. Under these circumstances, the Cleary judgment cannot be dispositive of his individual claim, and I concur in the majority’s conclusion in this respect.

However, I do not agree that Hiser’s claims for declaratory and injunctive relief survive. Hiser complains about the right to photocopy. While photocopying was not an issue in Cleary, copying was. Alaska’s policy regarding photocopying of legal and other materials for inmates has remained unchanged since at least 1988. It therefore could have been raised as part of the class challenge that inmates were denied access to the courts in part on account of the policy on copying. Particularly in light of the extensive nature of the Cleary litigation and the comprehensive settlement reached so recently in that case (including, as it did, a specific provision on access to copying facilities), it is not inappropriate to expect a claimant seeking systemic relief with respect to copying to return to the Cleary court.

Nor can I agree with the majority that Ferguson v. Dep’t of Corrections, 816 P.2d 134 (Alaska 1991), stands for the broad proposition that we must disregard the principles of res judicata whenever a non-named class member wishes to start anew. Rather, Ferguson simply tells us that “there must have been a full and fair opportunity to litigate the issue before res judicata can be applied,” and that such an opportunity has been provided where, as here, “the class representatives are found to have made a competent attempt to protect the interests of the individual who now seeks to litigate the issue.” Id. at 138.

I would, therefore, affirm the district court on this issue. 
      
      . Although Hiser did not use the phrase "as applied,” he clearly argued that his personal rights were violated by defendants’ refusal of his request for photocopying. Thus, we reject the State’s contention that Hiser only facially attacked the prison’s photocopying policy.
     
      
      . The State submitted an affidavit from FCC compliance officer Judy Coleman declaring that the State’s policy provides for "free photocopying for legal materials for indigent inmates when they can demonstrate a need for such materials in connection with pending or proposed litigation, and for five free copies per week when they cannot make such a showing.” No written me-morialization of the policy was submitted. Hiser contends in his amended complaint that ”[n]u-merous inmates have been denied copies of legal materials because they have been unable to justify their need for such materials to defendants’ satisfaction.”
     
      
      . The term "res judicata” is sometimes used to refer specifically to "claim preclusion” and sometimes used to encompass both "claim pre-elusion” and "issue preclusion.” Migra, 465 U.S. at 77 n. 1, 104 S.Ct. at 894 n. 1.
     
      
      . We note that the Cleary consent decree requires the State to provide typewriters and carbon paper to inmates. These would not appear to be adequate substitutes for photocopying under all circumstances, however. For example, an inmate might need to copy something he didn’t write himself in order to pursue his claim, for which purpose carbon paper would be useless. In any event, the issue at this juncture is only whether res judicata bars consideration of the merits of Hiser's claim. That carbon paper and typewriters were addressed in the consent decree should not mean that the State’s photocopying policy and practices may never be challenged. Cf. Crowe v. Leeke, 550 F.2d 184 (4th Cir.1977) (holding that prior class action challenging prison’s mail regulations in general did not bar subsequent class action challenge to prison's procedure allowing mail from attorneys to be opened and inspected outside the presence of the inmate-addressee).
     
      
      . Because Ferguson's concerns were not sufficiently addressed in Cleary, Ferguson was entitled to bring an independent action challenging the prison's drug testing policy. He was not relegated to reopening the Cleary litigation. So, too, Hiser may bring an independent action challenging the prison's photocopying policy. Although a court may, in appropriate cases, transfer or consolidate a plaintiff’s individual claim with an existing class action, the court may not simply dismiss the claim as barred by res judica-ta. See, e.g., Fortner, 983 F.2d at 1030-32.
     
      
      . By our ruling, we intímate no view of the merits of Hiser’s claim. Although res judicata does not bar Hiser's claim, Hiser must, in order to prevail, still establish that the alleged shortcomings in the prison's photocopying policy have hindered, or are presently hindering, his efforts to pursue a nonfrivolous legal claim. See Lewis, - U.S. at —--, 116 S.Ct. at 2179-82. An inmate has a right to photocopying under Bounds when, and only when, necessary to guarantee him meaningful access to the courts. See id.
      
     