United States District Court, S.D. California
October 17, 2005.
JOSEPH NICHOLS, CDC #H-87217, Plaintiff,
SERGEANT LAIRD, et al., Defendants.
The opinion of the court was delivered by: JAMES LORENZ, District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST
AMENDED COMPLAINT PURSUANT TO FED.R.CIV.P. 12(b)(6) [Doc. No. 27]
Plaintiff, an inmate currently incarcerated at Salinas Valley
State Prison in Soledad, California, and proceeding pro se, first
filed this civil rights action pursuant to 42 U.S.C. § 1983 on
October 14, 2004. Plaintiff also prepaid the initial civil filing
fee rather than proceeding in forma pauperis. On April 18,
2005, Plaintiff filed a First Amended Complaint ("FAC").
Defendants filed a Motion to Dismiss Plaintiff's First Amended
Complaint pursuant to FED.R.CIV.P. 12(b)(6) on July 8, 2005.
While this case was randomly referred upon filing to the
Honorable Magistrate Judge Ruben B. Brooks pursuant to
28 U.S.C. § 636(b)(1)(B) for disposition, the Court has determined that a
Report and Recommendation regarding the disposition of
Defendants' pending Motion to Dismiss is unnecessary. See S.D.
CAL. CIVLR 72.3(a) (assigning "[a]ll of the District's civil §
1983 prisoner caseload" to the District's magistrate judges for
disposition either upon consent of all parties, or in absence of unanimous written consent, "upon
submission of proposed findings and recommendations to the
district judge, unless the district judge orders otherwise.").
I. Factual Background
On March 6, 2001, Plaintiff was incarcerated at the Richard J.
Donovan Correctional Facility ("Donovan") awaiting transfer to
Salinas Valley State Prison ("Salinas") See FAC at 3. Plaintiff
suffers from mental health problems and sought to remain at
Donovan where he believed that he would receive adequate mental
health care. Id. However, when he was informed that the
transfer to Salinas was imminent, Plaintiff climbed onto the
guard rail with the intention of jumping from the top tier
because he was hearing voices in his head telling him to jump.
Id. Correctional Officer Renteria yelled to Plaintiff to stop
him from jumping. Id.
Before Plaintiff jumped from the top tier, he saw that
Defendant Laird was approaching. Plaintiff alleges that he was
fearful of Defendant Laird due to past harassment and
mistreatment of his mental health issues by Defendant Laird.
Id. Because Plaintiff believed that Defendant Laird would harm
him and he heard the voices in his head, Plaintiff jumped off the
tier. Id. at 3-4. Plaintiff also claims that Defendant Clark
urged him to jump. Id. at 4.
After Plaintiff jumped, he alleges Defendant Laird sprayed him
with "OC" (pepper) spray. Id. Defendant Laird then instructed
Plaintiff to stand up and told Plaintiff that if he wanted the
"burning to stop" (from the pepper spray) he needed to go to the
showers. Id. Plaintiff claims that he was unable to move his
legs and he was told by medical personnel that too much pepper
spray was used. Id. Plaintiff was then, lifted onto a "medical
bed" by correctional officers. Id.
Plaintiff was later helped into a wheelchair by Defendant
Osborne, an X-ray technician, who then escorted him to the X-ray
room. Id. at 5. Plaintiff alleges Defendant Osborne was holding
a stapler in his hand and "pretended" to have trouble opening the
door to the examination room. Id. Osborne then "deliberately
dropped" the stapler on Plaintiff's foot to determine whether
Plaintiff was "faking" his injuries. Id. Plaintiff filed an
administrative grievance alleging excessive force and medical
malpractice. Id. Later that same day, Plaintiff was transferred
to Salinas Valley State Prison. Id. at 6. II. Defendants' Motion to Dismiss per FED. R. CIV. P.
12(b)(6) [Doc. No. 27-1]
Defendants move to dismiss Plaintiff's First Amended Complaint
for failing to state a claim pursuant to FED.R.CIV.P. 12(b)(6).
Defendants claim that: (1) Plaintiff's claims are barred by res
judicata and collateral estoppel; (2) Plaintiff has not stated a
Fourteenth Amendment due process claim against Defendant Raupe;
and (3) Defendant Raupe is entitled to qualified immunity.
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant to
FED.R.CIV. P. 12(b)(6) tests the legal sufficiency of the claims
in the complaint. A claim can only be dismissed if it "appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); Hishon v. King &
Spaulding, 467 U.S. 69, 73 (1984). The court must accept as true
all material allegations in the complaint, as well as reasonable
inferences to be drawn from them, and must construe the complaint
in the light most favorable to the plaintiff. N.L. Industries,
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Parks School
of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.
The court looks not at whether the plaintiff will "ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236
(1974). Unless it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claim, a complaint cannot
be dismissed without leave to amend. Conley, 355 U.S. at 45-46;
see also Lopez v. Smith, 203 F.3d 1122, 1129-30 (9th Cir. 2000)
(en banc) (district court should grant leave to amend when
complaint fails to state a claim "unless it determines that the
pleading could not possibly be cured by the allegation of other
facts" and if "it appears at all possible that the plaintiff can
correct the defect") (citations omitted).
Where a plaintiff appears pro se, the court must construe the
pleadings liberally and afford the plaintiff any benefit of the
doubt. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,
623 (9th Cir. 1988). The rule of liberal construction is
"particularly important in civil rights cases." Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) ("Presumably
unskilled in the law, the pro se litigant is far more prone to making errors in pleading than the person who benefits
from the representation of counsel."). In giving liberal
interpretation to a pro se civil rights complaint, however, a
court may not "supply essential elements of the claim that were
not initially pled." Ivey v. Bd. of Regents of the University of
Alaska, 673 F.2d 266, 268 (9th Cir. 1982). "Vague and conclusory
allegations of official participation in civil rights violations
are not sufficient to withstand a motion to dismiss." Id.; see
also Jones v. Community Redevelopment Agency, 733 F.2d 646, 649
(9th Cir. 1984) (conclusory allegations unsupported by facts are
insufficient to state a claim under section 1983.) "The plaintiff
must allege with at least some degree of particularity overt acts
which defendants engaged in that support the plaintiff's claim."
Jones, 733 F.2d at 649 (internal quotation omitted).
B. Res Judicata and Collateral Estoppel
Defendants argue that the doctrines of res judicata and
collateral estoppel bars this action. Specifically, Defendants
request that the Court take judicial notice of a previous action
filed by Plaintiff in Nichols v. Laird, et al., S.D. Cal. Civil
Case No. 04cv1662 J (PCL). A court "may take notice of
proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to
matters at issue." United States ex rel. Robinson Rancheria
Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992). Thus, it is appropriate for the Court to take judicial
notice of action filed by Plaintiff in Nichols v. Laird, et
al., S.D. Cal. Civil Case No. 04cv1662 J (PCL).
Defendants maintain that the previous action filed by Plaintiff
is identical to the action currently before the Court. In S.D.
Civil Case No. 04cv1662, the district court denied Plaintiff's
Motion to Proceed In Forma Pauperis ("IFP") pursuant to
28 U.S.C. § 1915(g)*fn1 because Plaintiff had filed three civil actions or appeals that had been
dismissed as frivolous or malicious or for failure to state a
claim. See S.D. Civil Case No. 04cv1662, September 17, 2004
Order at 6. The district court went on to find that Plaintiff's
complaint was subject to sua sponte dismissal because it appeared
from the face of Plaintiff's pleading that his claims were barred
by the applicable statute of limitations. Id. at 4-5.
The doctrine of res judicata or claim preclusion applies in
actions where: "(1) the same parties, or their privies, were
involved in the same litigation, (2) the prior litigation
involved the same claim or cause of action as the later suit, and
(3) the prior litigation was terminated by a final judgment on
the merits." See Central Delta Water Agency v. United States of
America, et al., 306 F.3d 938, 952 (9th Cir. 2002) (citations
omitted). Plaintiff does not dispute in his Opposition that any
of the above elements have not been met. Instead, Plaintiff
attempts to argue that the district court in S.D. Cal. Civil Case
No. 04cv1662 was simply wrong when the district court issued its
order dismissing Plaintiff's complaint as barred by the
applicable statute of limitations. However, Plaintiff chose not
to file an appeal in that action nor did he file any motions
seeking to vacate the district court's judgment dismissing his
It is now clear to this Court upon reviewing the complaint
filed in S.D. Cal. Civil Case No. 04cv1662, that the action
presently before this Court is duplicative of the previous
action. It involves the exact same set of facts and the same
parties with the exception of Defendant Raupe. Defendant Raupe is
no longer a party to this action pursuant to Plaintiff's request
for voluntary dismissal of Defendant Raupe filed on August 10,
2005 [Doc. No. 35]. Finally, a dismissal on statute of
limitations grounds is a judgment on the merits. See Tahoe
Sierra Preservation Council, Inc. v. Tahoe Regional Planning
Agency, et al., 322 F.3d 1064, 1081 (9th Cir. 2003). The Court
GRANTS Defendants' Motion to Dismiss Plaintiff's First Amended
Complaint pursuant to FED.R.CIV.P. 12(b)(6) on res judicata
grounds. Defendant Raupe, who was not a Defendant in the previous
action, argues that she should be dismissed on collateral
estoppel grounds. In the alternative, Defendant Raupe moves to
dismiss Plaintiff's Fourteenth Amendment claims on the grounds
that his allegations fail to state a claim upon which relief can
be granted. However, the Court need not reach these issues as
Plaintiff voluntarily dismissed Defendant Raupe from this action
on August 10, 2005. See Pl.'s Request for Voluntary Dismissal
[Doc. No. 35].
III. Conclusion and Order
Good cause appearing, IT IS HEREBY ORDERED that:
Defendants' Motion to Dismiss Plaintiff's First Amended
Complaint pursuant to FED.R.CIV.P. 12(b)(6) [Doc. No. 27] is
GRANTED, without leave to amend, on res judicata grounds.
The Clerk shall close the file.
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