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John Frederick Wheeler v. Mayor of Bakersfield City

December 8, 2011

JOHN FREDERICK WHEELER, PLAINTIFF,
v.
MAYOR OF BAKERSFIELD CITY, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDING AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS THE ACTION WITH PREJUDICE

(Docs. 1 & 2)

Plaintiff has filed a civil rights action, along with an application to proceed in forma pauperis. This proceeding was referred to this Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1) and Local Rule 302.

I. PROCEDURAL BACKGROUND

On November 2, 2011, Johm Fredrick Wheeler ("Plaintiff"), proceeding pro se, filed this civil rights action, pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff alleges federal constitutional as well as state law claims against the city of Bakersfield, California, and its mayor, for receiving a "Notice of Violation" regarding his parked vehicle found on an unpaved surface, a violation of Bakersfield's Municipal Code Section 10.32.160. ("BMC 10.32.160") (Doc. 1 at 1.) At time he received the notice, Plaintiff's vehicle was parked on grass, adjacent the garage of his rental property located in Bakersfield, California. (Id. at 9.) Upon review of the complaint, the Court finds that this action is substantively identical to the prior complaint that Plaintiff filed on August 22, 2011, Wheeler v. Bakersfield City, et al., 1:11--cv--01392--LJO-JLT, which was dismissed with prejudice for Plaintiff's failure to state a claim on October 19, 2011. As discussed below, Plaintiff's complaint should be dismissed as barred under the doctrine of res judicata.

II. IN FORMA PAUPERIS

Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Although Plaintiff's application and declaration make the showing required by 28 U.S.C. § 1915(a)(1), the undersigned recommends that the application to proceed in forma pauperis be denied as moot because, as discussed below, the undersigned also recommends that the complaint be dismissed without leave to amend.

The determination that a plaintiff may proceed in forma pauperis does not complete the inquiry. The court is also required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to section 1915(e)(2), the court shall dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is "frivolous or malicious," the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(A)-(B).*fn2

III. SCREENING REQUIREMENT

The Court is required to review a case filed in forma pauperis. See 28 U.S.C. § 1915(e)(2). The Court must review the complaint and dismiss any portion thereof that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). If the Court determines the complaint fails to state a claim, leave to amend should be granted to the extent that the deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). "Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a plaintiff's obligation to provide the grounds of entitlement to relief under Rule 8(a)(2) requires more than "naked assertions," "labels and conclusions," or "formulaic recitation[s] of the elements of a cause of action." Twombly, 550 U.S. at 555-57. The complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550 U.S. at 570). Vague and conclusory allegations are insufficient to state a claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

IV. RES JUDICATA

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. ...


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