FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF THIS ACTION AS BARRED BY RES JUDICATA AND FOR RULE 11(b)(3) VIOLATION
On September 21, 2007, Michael Gonzales ("Plaintiff'), a state prisoner proceeding pro se and in forma pauperis , filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleged claims of retaliation, involuntary medication, theft of novels and drawings, refusal to mail correspondence and art, and denial of showers. Doc. 1. On December 2, 2009, the Court ordered Plaintiff to amend his complaint or notify the Court of willingness to proceed on the two cognizable claims, i.e. , retaliation and refusing to mail correspondence and art. Doc. 8. On February 16, 2010, Plaintiff agreed to proceed on only the cognizable claims. Doc. 10.
Upon review of the complaint, the Court finds that this action is substantively identical to the prior complaint that Plaintiff filed on April 12, 2007, Gonzales v. Fresura, et al. , 1:07-cv-00565-OWW-GSA, which was dismissed with prejudice on April 24, 2009, for failure to state a claim. Additionally, in Plaintiff's complaint, he listed five prior lawsuits, which contradicts Court records demonstrating that Plaintiff has filed at least twenty-five prior actions.
The doctrine of res judicata bars the
re-litigation of claims previously decided on their merits.
Headwaters, Inc. v. U.S. Forest Serv. , 399 F.3d 1047,
1051 (9th Cir. 2005). 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 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. , 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)). "[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. 1993). "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 re-litigation 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). 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.
On September 21, 2007, Plaintiff filed the complaint in the
instant case, alleging claims against correctional officers Price, K.
Frescure, B.S. Vikjord, M. Castro, and R. Pinzon for "intentional
retaliation and complete denial of personal mail." Pl. Compl. at 4,
Doc. 1. Plaintiff states that "this has been a [sic] issue for several
years and I did file other claims." Id. at 5.
Plaintiff alleges that on October 7, 2006, he confronted Defendant
Pinzon about his mail. See id. at 6. As relief,
Plaintiff seeks a permanent and preliminary injunction prohibiting
Defendants from harassing, threatening, or retaliating against
Plaintiff and for punitive and compensatory damages. See id.
Prior to filing the complaint in the instant case, on April 12,
2007, Plaintiff filed Gonzales
v. Fresura, et al. , 1:07-cv-00565. In that action,
Plaintiff alleged that Price, K. Frescura, *fn1
Vikjord, Castro, Weaver, Mallory, F. Yamat, and J.
Munoz *fn2 alleging "officers deny me all
legal personal mail
process medicate my meals *fn3 and deny
me copies in retaliation for exercising my civil rights."
See Gonzales v. Fresura, et al. , 1:07-cv-00565, Pl.
Compl. at 3, Doc. 1. Plaintiff further alleged that "Officers K.
Frescura, Vikjord, Price, and Castro have completely stopped my
personal mail, consisting of art drawings, poems, letters to my family
from leaving the facility they have been doing this since June of 2006
. . . For the past three weeks Officer Frescura and Vikjord have been
denying me mail to the court. Officer Frescura threatens never to mail
by refusing to pick it up." See id. at
5. As relief, Plaintiff sought a "permanent and preliminary
injunction that prohibits the defendants, their successors in office
their agents et al. from censoring, harassing, threatening or
assaulting Plaintiff for exercising his civil rights" as well as
"punitive and compensatory damages." See id.
6. In his complaint, Plaintiff alleged that he has exhausted his
administrative remedies for "food medicating and obstruction of legal
and personal mail that has never stopped it is continuous from 2000 to
the present day." See id. at 7.
B. Final Judgment on the Merits
On December 15, 2008, the Court dismissed the complaint in Gonzales v. Fresura, et al. , 1:07-cv-00565, providing Plaintiff with leave to amend or an opportunity to notify the Court of willingness to proceed on only the cognizable claims. Doc. 10. On January 15, 2009, Plaintiff filed a motion for extension of time to amend his complaint. Doc. 11. On January 22, 2009, the Court granted Plaintiff's motion for extension of time. Plaintiff failed to file an amended complaint or notify the Court of his willingness to proceed on only the cognizable claims, and on March 6, 2009, the Magistrate Judge issued Findings and Recommendations recommending that the action be dismissed for failure to state a claim upon which relief may be granted. Doc. 13. ...