The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (Doc. 92) THIRTY (30) DAY DEADLINE
Plaintiff Gust Marion Janis ("Plaintiff") is a federal prisoner proceeding pro se in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors and pursuant to 28 U.S.C. § 1346(b) (the Federal Tort Claims Act, "FTCA"). The FTCA provides a limited remedy for torts committed by federal employees. This action is proceeding on Plaintiff's Fourth Amended Complaint, filed January 18, 2008. (Doc. 55.)
II. Defendants' Motion to Dismiss
Pending before the Court is Defendants' *fn1
motion to dismiss, filed March 12, 2010. (Doc.
92, MTD.) Defendants move to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure because: (1) the FTCA judgment
bar, 28 U.S.C. § 2676, bars Plaintiff's Bivens
action against Defendants in light of the judgment on plaintiff's
FTCA claim, previously filed in the Central District of California
("the Central District Case") *fn2 based on
the same subject matter; (2) the FTCA claim is barred by res judicata
in light of the judgment entered in the Central District Case; (3)
certain of the Bivens claims are barred by the
two-year statute of limitations; and (4) the allegations in the Fourth
Amended Complaint are insufficient to state plausible Bivens
claims. ( Id. , 1:20-2:3.) Defendants also
bring an "unenumerated" Rule 12(b) motion to dismiss on the grounds
that Plaintiff has failed to exhaust administrative remedies for some
of his Bivens claims as required by 42 U.S.C. §
1997e(a) and move for dismissal based on improper venue pursuant to
Rule 12(b)(3) because most of the conduct in the Fourth Amended
Complaint is alleged to have occurred at the United States
Penitentiary at Lompoc, California -- which is not located in the
Eastern District of California. ( Id. , 2:4-9.)
Finally, Defendants argue that certain of the individuals named as
defendants in the Fourth Amended Complaint, who have not been served
and have not waived service, must be dismissed from this action for
insufficient service of process pursuant to Rule 12(b)(5) and for
untimely service pursuant to Rule 4(m) of the Federal Rules of Civil
Procedure. ( Id. , 2:10-13.)
Plaintiff requested and received multiple extensions to file his
opposition, which was filed on September 13, 2010. *fn3
(Docs. 96, 110, 113, 116, 120, 125). Defendants requested
and received an extension to file their reply, which was filed on
November 19, 2010. (Docs. 124, 127, 131.) The motion was deemed
submitted pursuant to Local Rule 78-230 upon
filing of the reply. *fn4
A. The Federal Tort Claims Act -- Judgment Bar
"The United States is immune from suit unless it consents to be sued." Graham v. U.S. , 96 F.3d 446, 448 (9th Cir. 1996) ( citing United States v. Mitchell , 445 U.S. 535, 538 (1980)). The FTCA " 'waives the sovereign immunity of the United States for certain torts committed by federal employees "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." ' " Vacek v. U.S. Postal Service , 447 F.3d 1248, 1250 (9th Cir. 2006) ( quoting Smith v. United States , 507 U.S. 197, 201 (1993) (emphasis omitted) ( quoting 28 U.S.C. § 1346(b))); see also 28 U.S.C. § 2674. Federal courts have jurisdiction to hear claims for damages for injury or loss under the FTCA. 28 U.S.C. § 1346(b)(1).
Defendants argue that Plaintiff's Bivens claims (Claims 1-8) are barred by the FTCA's judgment bar since the Central District Case was based on the same factual allegations and was dismissed for lack of jurisdiction on statute of limitations grounds because Plaintiff did not file his FTCA action within six months of denial of his administrative claim as required by 28 U.S.C. § 2401(b). (Doc. 92-1, MTD P&A, 12:12-14:27.)
The judgment bar rule of the FTCA provides that "[t]he judgment in any action under section 1346(b) of this title shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim." 28 U.S.C. § 2676.
The FTCA's judgment bar precludes Bivens claims where a previous FTCA claim was dismissed based on lack of subject matter jurisdiction. Gasho v. United States , 39 F.3d 1420, 1436-38 (9th Cir.1994) (district court's dismissal of the plaintiff's FTCA abuse of process claim under Rule 12(b)(6) was upheld on the alternative grounds that the claim was barred under an exception to the FTCA's waiver of sovereign immunity -- upholding lack of subject matter jurisdiction as the basis for upholding the FTCA judgment and precluding related Bivens claims.) "[ A ] ny FTCA judgment, regardless of its outcome, bars a subsequent Bivens action on the same conduct that was at issue in the prior judgment." Id. (emphasis in original). Under § 2676, a Bivens action related to a previously dismissed FTCA claim may proceed only to the extent that it arises out of factual allegations different from those raised in the FTCA claim. See Pesnell v. Arsenault , 543 F.3d 1038 (9th Cir. 2008) (action raising Bivens claims and Racketeering Influenced and Corrupt Organizations Act ("RICO") claims was allowed to proceed only to the extent that the claims arose out of factual allegations not raised in a previous action where FTCA claims were dismissed for lack of subject matter jurisdiction). "[T]he statute of limitations in 28 U.S.C. § 2401(b) is jurisdictional." Marley v. U.S. , 567 F.3d 1030 (9th Cir. 2009).
In his opposition, Plaintiff argues that the FTCA judgment bar does not bar his Bivens claims in this case because his FTCA claim in the Central District Case was "not based on the same subject matter, nor where [sic] the defendant were [sic] named as Bivens defendant or served with a Summons and Complaint." (Doc. 125, Plntf. Opp., p. 3.) Plaintiff then delineates the circumstances under which the Central District Case was terminated. ( Id. , at pp. 4-5.) However, as noted in Defendants' reply, the assertion that the Central District Case was not based on the same subject matter as the Fourth Amended Complaint is unsupported by a review of the pleadings and Plaintiff "does not identify a single instance where the claims differ, nor does he refute any portion of the comparison presented in defendants' opening brief which shows that the FTCA claim in the Central District and the Bivens claims here are nearly identical." (Doc. 131, Def. Reply, 5:13-18 ( ref . Doc. 125, pp. 3-4).)
Defendants provide a very detailed rendition of the factual parallels between Plaintiff's factual allegations in the Central District Case and those of the Fourth Amended Complaint in this action. (Doc. 92-1, MTD P&A, 9:1-11-10.) However, this rendition fails to show any correlation between Plaintiff's allegations in paragraph 14 ("Claim 7") in the Fourth Amended Complaint in this action (Doc. 55, FAC, ¶ 14) and the factual allegations in the Central District Case. Indeed, the pleadings from both actions reveal no similarities such that Claim 7 in the Fourth Amended Complaint, for deliberate indifference to Plaintiff's serious medical needs against Defendants Schultz, Milligan, Rios, DeVere, Spencer, Wolf, Stahley, Orozco, and Rios, is not subject to the FTCA's judgment bar.
With the exception of Claim 7, the allegations in Plaintiff's
Bivens claims are based on the same factual
allegations raised in the previously dismissed FTCA claims in the
Central District Case. Accordingly, the FTCA's judgment bar precludes
Plaintiff's Bivens Claims 1-6, and 8 in this
action. See Gasho , 39 F.3d at 1436-38. As noted
above, the FTCA's judgment bar does not preclude Claim 7 (Doc. 55,
FAC, ¶ 14) since no similar allegations were stated in the Central
Defendants move for dismissal under the doctrine of res
judicata which bars the re-litigation of claims previously
decided on their merits. *fn5
Headwaters, Inc. v. U.S. Forest Serv. , 399 F.3d 1047,
1051 (9th Cir. 2005). "Res judicata, also known as claim preclusion,
bars litigation in a subsequent action of any claims that
were raised or could have been raised in the prior action."
Western Radio Services Col, Inc. v. Glickman , 123
F.3d 1189, 1192 (1997) (emphasis added) ( citing Federated
Dep't Stores, Inc. v. Moitie , 452 U.S. 394, 398 (1981);
Costantini v. Trans World Airlines , 681 F.2d 1199,
1201-02 (9th Cir.1982)).
Defendants argue that they are entitled to dismissal of Plaintiff's FTCA claim ("Claim 9") because the Central District Case and its resolution bars Plaintiff from proceeding on his claims under the FTCA in this action. (Doc. 92-1, MTD P&A, p. 15.) Claim preclusion, like issue preclusion, is an affirmative defense. See Fed. Rule Civ. Proc. 8(c). "The elements necessary to establish res judicata are: '(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties.'" Headwaters, Inc. , 399 F.3d at 1052 ( quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency , 322 F.2d 1064, 1077 (9th Cir. 2003)).
The transaction test, developed in the context of claim preclusion, is used to ascertain whether successive causes of action are the same. Adams v. California Dept. of Health Services , 487 F.3d 684, 689 (9th Cir. 2007). "Whether two events are part of the same transaction or series depends on whether they are related to the same set of facts and whether they could conveniently be tried together." Id. ( quoting Western Sys., Inc. v. Ulloa , 958 F.2d 864, 871 (9th Cir.1992) ( citing Restatement (Second) of Judgments § 24(1) (1982)). In applying the transaction test, four criteria are to be examined:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.
Id. ( quoting Costantini , 681 F.2d at 1201-02). However, "[t]he last of these criteria is the most important." Costantini at 1202.
It is evident from the record in the Central District Case, of which notice is taken, see Harrington v. Vandalia-Butler Bd. of Education , 649 F.2d 434, 441 (6th Cir.1981), and the pleadings in this case, that the Central District Case and the vast majority of Plaintiff's claims in this action arise out of the same transactional nucleus of facts. Defendants painstakingly delineated that paragraphs 6-13, 15-20, 22-24, and 26-27 of the Fourth Amended Complaint are repetitious of ...