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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

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. 1995).

  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 complaint.

  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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