ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that the defendants violated his First Amendment rights when they retaliated against him for lodging a misconduct complaint.*fn1 Plaintiff claims that in retaliation for reporting alleged misconduct by correctional staff, his classification score was increased and he was subjected to a series of transfers to higher-security level prison facilities. Before the court is a motion to dismiss this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure filed on behalf of defendants Fry and Sisto. Therein, counsel for defendants argues in conclusory fashion that the res judicata doctrine requires that this action be dismissed because plaintiff has previously litigated the issues presented in this lawsuit in a state habeas action which he pursued before bringing this suit. Plaintiff has opposed the motion. Despite the perfunctory nature of the moving papers, counsel for defendants elected not to file a reply.
DEFENDANTS' MOTION TO DISMISS
As noted, defendants Fry and Sisto argue that this action is barred because plaintiff previously litigated the same issues to final resolution on the merits in a habeas action he brought in the Amador County Superior Court. (MTD at 3.) Defendants contend that this court must apply the preclusion principles under California law which provide that collateral estoppel is invoked where two actions involve: (1) identical issues; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding. (MTD at 3-4) (citing Younan v. Caruso, 51 Cal. App. 4th 401, 406-07 (1996)).
Defendants argue that the first prong of this test is satisfied because both plaintiff's state habeas action and this action raise a First Amendment retaliation claim and, possibly, a due process claim. (Id. at 4.) With respect to the second prong, defendants contend that the Amador County Superior Court denial of plaintiff's earlier habeas petition based on a failure of proof, is a decision on the merits. (Id.) (citing In re Clark, 5 Cal. 4th 750, 769-70 (1993) and Gage v. Tristan, 1997 WL 76178 (9th Cir. Nov. 19, 1996))*fn2 . (MTD at 4.) Defendants assert that after plaintiff's habeas petition raising these same claims was denied by the Superior Court, he "appealed to the Third District Court of Appeals, then the California Supreme Court, which also denied his petition." (Id. at 5.) Defendants contend that therefore, plaintiff had a full and fair opportunity to litigate his First Amendment retaliation and Due Process claims in his state habeas proceedings. (Id.) Finally, defendants argue that the third prong of the test for collateral estoppel under California law is satisfied here because it cannot be disputed that plaintiff filed both his state habeas petitions and this lawsuit. (Id. at 4.)
In support of their motion defendants have submitted several documents for this court's consideration, including a copy of the habeas petition plaintiff filed with the Amador County Superior Court, the informal response submitted by the Attorney General's Office to that petition, the reply filed by plaintiff and the Amador County Superior Court's order denying the petition. (Req. for Judicial Notice, Exs. A & B*fn3 (Doc. No. 13).) Defendants note that in denying habeas relief the Amador County Superior Court explained petitioner's burden to state a prima facie case for relief, concluded that petitioner had failed to meet that burden and therefore denied him habeas relief. (MTD at 5.)
In opposing defendants' motion to dismiss, plaintiff advances two arguments. First, plaintiff contends that the denial of his state habeas petition does not bar this § 1983 action because the remedy sought in the two actions is different. Specifically, plaintiff notes that through this civil rights action he is seeking monetary damages, a remedy unavailable in the state habeas action he pursued before the Amador County Superior County. Second, while plaintiff agrees that his state habeas petition raised the same claims presented in this federal civil rights action, he argues that the Amador County Superior County did not issue a ruling on the merits of those claims. Rather, plaintiff contends, he was denied habeas relief in state court only because he failed to allege sufficient facts in his petition to state a prima facie case for habeas relief.
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS
A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). Dismissal of the complaint, or any claim within it, "can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). See also Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Thus, the court may dismiss a complaint or any claim within it as frivolous where the claim is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). The critical inquiry is whether a claim, even if inartfully pleaded, has an arguable legal and factual basis. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin v. Murphy, 745 F.2d 1221, 1227 (9th Cir. 1984). As the Supreme Court has explained, in order to state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In determining whether a complaint states a claim, the court accepts as true the material allegations in the complaint and construes those allegations, as well as the reasonable inferences that may be drawn from them, in the light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Hosp. Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Love v. U.S., 915 F.2d 1242, 1245 (9th Cir. 1989). For purposes of a motion to dismiss, the court also resolves doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court may disregard allegations in the complaint that are contradicted by facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). In addition, the court need not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A motion to dismiss on the basis of res judicata or collateral estoppel may properly be brought under Rule 12(b)(6). See Neitzke v. Williams, 490 U.S. 319, 328 (1989) ("When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate[.]"); see also Day v. Moscow, 955 F.2d 807, 811 (2nd Cir. 1992) (concluding that, although generally an affirmative defense, res judicata may be raised in a Rule 12(b)(6) motion "when all relevant facts are shown by the court's own records, of which the court takes notice"); Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (affirming the district court's dismissal of complaint pursuant to Rule 12(b)(6) on res judicata grounds).
RES JUDICATA/COLLATERAL ESTOPPEL*fn4
"A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies." Montana v. United States, 440 U.S. 147, 153 (1979). Federal courts "are required to give state court judgments the preclusive effect they would be given by another court of that state." Brodheim v. Cry, 584 F.3d 1262, 1268 (9th Cir. 2009) (citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 84 (1984)). T he doctrines of collateral estoppel and res judicata apply in § 1983 action such as this one when the constitutional claim is based on the same alleged act or omission that was the subject of a state court action and the ...