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Colon v. Sullivan

November 4, 2010

GILBERT F. COLON, PLAINTIFF,
v.
M. SULLIVAN, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE GRANTED

(Doc. 24)

THIRTY-DAY DEADLINE

I. Background

Plaintiff Gilbert F. Colon ("Plaintiff") is a state prisoner who is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a twenty year to life sentence in state prison and is currently housed at Centinela State Prison in Imperial, California. (Doc. 14, Amend. Comp., p. 7.)

Plaintiff was convicted of the murder of a 16 year old that occurred on January 19, 1993. (Id., p. 30.) On August 13, 2005, Plaintiff appeared before the Sierra Conservation Center Classification Committee ("SCCCC") and the committee affirmed a restriction, pursuant to Title 15, California Code of Regulations, § 3173.1,*fn1 that Plaintiff could no longer have visits with minors under 18 years of age. (Id., p. 33.)

Plaintiff filed a writ of habeas corpus on November 1, 2006, in the Superior Court of California, County of Tuolumne alleging that the California Department of Corrections and Rehabilitation ("CDCR") "acted in excess of its authority in implementing the 2003 amendments to 15 [California Code of Regulations] § 3173.1" and "the actions of the [SCCCC] in denying him visitation with minors in accordance with the above regulation was [sic] arbitrary and capricious." (Id., p. 54.) The writ was denied on December 6, 2006, in an order stating Plaintiff had "not made a prima facie showing that the institution has violated any statute or regulation. Administrative regulations, properly authorized, are presumptively valid. Petitioner has not met his burden of demonstrating invalidity." (Id.) A petition for a writ of habeas corpus was filed in the Court of Appeal for the State of California on January 10, 2007. The petition was denied on May 11, 2007, because the Plaintiff failed to show that he exhausted his superior court habeas remedies on all of his claims. (Doc. 14, Amend. Comp., p. 77.) A petition for a writ of habeas corpus was filed with the Supreme Court of California on June 15, 2007, requesting the Court to declare invalid 15 CCR § 3173.1(d). (Id., p. 21.) On June 27, 2007, the Supreme Court of California denied Plaintiffs petition for writ of habeas corpus. (Id., p. 79.)

The complaint in this action was filed on July 18, 2007. (Doc. 1.) On December 19, 2008, an order dismissing the complaint with leave to amend was filed. (Doc. 11.) A first amended complaint was filed on February 24, 2009. (Doc. 14.) Findings and recommendations were issued on November 19, 2009. (Doc. 18.) An order adopting the findings and recommendations to proceed only on Fourteenth Amendment claims was filed on February 9, 2010. (Doc. 19.) Defendants filed a motion to dismiss on May 4, 2010, on the grounds that Plaintiff is precluded from bringing this action by the doctrine of res judicata. (Doc. 24, p. 1.) Plaintiff filed an opposition on June 30, 2010. (Doc. 29.) Defendants did not file a reply. Defendants brought the motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

II. Discussion

A. Legal Standard

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint," Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ," Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555).

However, the court can consider documents extrinsic to the complaint where the authenticity is undisputed and they are integral to the claims. Fields v. Legacy Health Systems, 413 F.3d 943, 958 n 13 (9th Cir. 2005). Additionally "a court may take judicial notice of 'matters of public record.'" Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (quoting Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Claim preclusion may be raised in a Rule 12(b)(6) motion. See Holcombe v. Hosmer, 477 F.3d 1094 (9th Cir. 2007).

B. Res Judicata

The doctrine of res judicata bars a second lawsuit on any claims arising from the same facts that were or could have been brought in a prior action. Stewart v. U. S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002); Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982). Res judicata applies where the earlier suit involved the same claim or cause of action, the final judgment was on the merits, and the current suit involves the same parties or there is privity between parties. Stewart, 297 F.3d at 956; Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1404 (9th Cir. 1993).

Plaintiff's argument that res judicata "actually means addressing the same issue of a case in the same court more than once when it already has been resolved or ruled on" is clearly without legal merit. Takahashi v. Board of Trustees of Livingston Union School ...


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