FINDING AND RECOMMENDATION, RECOMMENDING DISMISSING ACTION AS BARRED BY RES JUDICATA (Doc. 21)
Barry Louis Lamon ("Plaintiff') is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on September 21, 2007, and is proceeding on Plaintiff's second amended complaint filed on April 8, 2009. (Docs. 1, 21, 30). On April 12, 2011, the Court issued an Order to Show Cause ("OSC") as to whether the action should be dismissed as duplicative and ordered both parties to provide additional briefing on the matter. (Doc. 74). On April 28, 2011, Plaintiff filed a response to the OSC (Doc. 76) and on May 12, 2011, Defendants filed a response. (Doc. 77). On May 26, 2011, Plaintiff filed a reply. (Doc. 78).
II. Res Judicata Legal Standard
"Plaintiffs generally have 'no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.'" Adams v. California Dept. of Health Services , 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp. , 563 F.2d 66, 70 (3d Cir.1977). In this instance, Plaintiff maintained two separate actions, involving the same subject matter and defendants at the same time, however, the earlier filed action dismissed with prejudice the duplicative claim and in this case the claim went forward. After careful review of the record, Plaintiff's response and Defendants' response, the Court finds that this action is barred by claim preclusion and is proceeding on claims previously brought in another case, Lamon v. Tilton, et al. , 1:07-cv-00493-AWI -DLB. *fn1 Claim preclusion (res judicata) pertains to 'the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit . . .' Gospel Missions of America v. City of Los Angeles , 328 F.3d 548, 553 (9th Cir. 2003) quoting Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 77 n. 1 (1984); see also Owens v. Kaiser Found. Health Plan, Inc. , 244 F.3d 708, 713 (9th Cir. 2001) ('Res judicata precludes the litigation of "any claims that were raised or could have been raised" in a previous lawsuit.'). "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. v. U.S. Forest Service , 399 F.3d 1047, 1052 (9th Cir. 2005) (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency , 322 F.2d 1064, 1077 (9th Cir. 2003)).
"[I]f a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte , even though the defense has not been raised," Arizona v. California , 530 U.S. 392, 416 (2000), provided that the parties have an opportunity to be heard prior to dismissal, Headwaters, Inc. , 399 F.3d at 1055. Generally a person who is not a party to an action is not entitled to the benefits of res judicata. However, where "two parties are so closely aligned in interest that one is the virtual representative of the other, a claim by or against one will serve to bar the same claim by or against the other." Nordhorn v. Ladish Co., Inc. , 9 F.3d 1402, 1405 (9th Cir. 2003). "There is privity between officers of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government." Sunshine Anthracite Coal Co. v. Adkins , 310 U.S. 381, 402-03 (1940).
"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." Western Sys., Inc. v. Ulloa , 958 F.2d 864, 871 (9th Cir.1992). *fn2 In applying the transaction test, the Court examines the following criteria:
(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.
Costantini v. Trans World Airlines , 681 F.2d 1199,
1201-02 (9th Cir.1982). "The last of these criteria is the most
important." Id. at 1202. In Tilton
, the case proceeded on Plaintiff's third
amended complaint. Lamon v. Tilton, et al. ,
1:07-cv-00493-AWI-DLB (Doc. 68, Order adopting findings and
recommendations as to what claims would proceed from the third amended
complaint; Doc. 41, Third amended complaint). Both actions had many of
the same defendants (although many were ultimately dismissed in
Tilton ): Masiel, Mendoza, Luna, Roberts, Salinas, Jones,
Castillo, Lopez and Adams. Compare Lamon v. Tilton, et
al. , 1:07-cv-00493-AWI-DLB (Doc. 41 at pp. 1, 10-11)
with Lamon v. Adams, et al. , 1:07-cv-01390-LJO-GBC (Doc.
21 at pp. 1, 4, 10 ). Plaintiff originally filed Tilton
on March 29, 2007, and this action on September 21, 2007.
Plaintiff's complaints in Tilton were dismissed on
January 28, 2008 and September 12, 2008 with leave to amend (Docs. 18,
28) and Plaintiff's retaliatory excessive force claims were ultimately
dismissed on August 11, 2009. Tilton at Doc. 68.
Meanwhile, same and similar claims against the same defendants were
determined to proceed in an order dated September 11, 2009.
Adams at Doc. 29. In both the third amended complaint in
the Tilton action (Doc. 41) and the second amended
complaint in this action (Doc. 21), Plaintiff asserted that his claims
stem from the same two administrative grievances: one administrative
grievance numbered CSPC-5-06-2116 and another administrative grievance
numbered CSPC-6-06-03346. Compare Lamon v. Tilton, et
al. , 1:07-cv-00493-AWI-DLB (Doc. 41 at p. 7) with
Lamon v. Adams, et al. , 1:07-cv-01390-LJO-GBC (Doc. 21 at p.
In Tilton , Plaintiff alleged that: . . . from February 23, 2006, on-going, [correctional officers] . . . J. Masiel . . . [and] L. Mendoza . . . subjected me to manifold acts of retaliation, including but not limited to the chronic unprovoked infliction of wanton and unnecessary inflictions of pain, physical and mental suffering by systematically tainting me meals, beverages, lotions, gels and food packages from home with cleaning detergents and unknown other chemical agents that cause me excruciating pain . . . . (Doc. 41, Third Amended Complaint at p. 19, ¶ 115).
In this action ( Adams ), Plaintiff alleges that: [He] suffered a highly-amplified pattern of harassment, intimidation and retaliation from Corcoran officials including but not limited to . . . Masiel [and] Mendoza. . . including taintings of [his] meals with pain and discomfort causing chemical agents, physically beating [Plaintiff] while [he] was handcuffed behind [his] back . . . ." (Doc. 21, Complaint at ¶ 45). Plaintiff further alleged that "On May 23, 2006, as Defendants Masiel . . . [and] Mendoza were escorting [him] . . . Defendant Masiel made incessant threats that [Masiel] and [the other officers] were tired of [Plaintiff's] complaining, filing grievances and trying to file lawsuits and if [Plaintiff] did not back off, [the officers] were going to "take [Plaintiff] down." (Doc. 21, Second Amended Complaint at p. 15, ¶ 54). Plaintiff further alleged that Defendant Masiel beat Plaintiff while Defendant Mendoza, along with other defendants where on top of Plaintiff and held him down. (Doc. 21, Second Amended Complaint at p. 15, ¶ 56). It is clear that the claims in this action stem from the same transactional nucleus of facts, involve the same right to be free from retaliatory cruel and unusual punishment and the prior judgment dismissing the claim on the merits implicates the established interests of Defendants from facing additional prosecution. Additionally the type of evidence that would have been obtained in the form of witness testimony from Defendants and documents in Plaintiff's central file would have been the same to address the ongoing series of cruel and unusual retaliatory acts.
Plaintiff's earlier filed suit of Tilton
contains the same allegation of tainting food with chemicals,
vaguely alleges unconstitutional conduct by the same defendants
(Masiel and Mendoza) during a broad date ("from February 23, 2006,
on-going") and a broad range of retaliatory cruel and unusual conduct
("...manifold acts of retaliation, including but not limited to the
chronic unprovoked infliction of wanton and unnecessary inflictions of
pain..."). Plaintiff had multiple opportunities in Tilton
to amend his complaint to add the May 23, 2006, retaliatory
use of excessive force by Defendants Masiel and Mendoza that stemmed
from Plaintiff's two administrative grievances numbered CSPC-5-06-2116
and CSPC-6-06-03346. However, rather than amend his complaint in
Tilton to provide greater specificity to the "manifold
acts of retaliation, including but not limited to the chronic
unprovoked infliction of wanton and unnecessary inflictions of pain,"
Plaintiff had split the claim between two cases and the duplicative
claims in Tilton were dismissed ...