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Terry Morgan v. City and County of San Francisco


January 26, 2012


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

United States District Court Northern District of California


This section 1983 lawsuit arises out of an August 15, 2008 arrest. Plaintiff Terry Morgan alleges that defendants Officer Fong and Officer Giovanelli used excessive force 22 against him when they arrested him for jaywalking. Plaintiff previously filed an identical 23 lawsuit in California state court, which was dismissed with prejudice. Defendants move for 24 summary judgment on all claims, arguing, in part, that res judicata precludes Plaintiff from 25 litigating these claims again. After carefully considering the evidence properly submitted by 26 the parties, and having had the benefit of oral argument on January 26, 2012, the Court 27 GRANTS Defendants‟ motion for summary judgment. 28


On August 15, 2008 the defendant officers witnessed Plaintiff jaywalking. (Dkt. Nos. 31 at 1, 37 at 2.) When the officers asked for Plaintiff‟s identification, he informed them that 4 he had none. (Dkt. Nos. 31 at 2, 37 at 2.) Defendants allege that at this point Plaintiff became 5 hostile, and that when they attempted to detain Plaintiff for refusing to provide his 6 identification and comply with other verbal commands, Plaintiff tried to escape on foot. (Dkt. 7 No. 37 at 2.) Plaintiff contends that he attempted to escape after Officer Fong "became hostile 8 and started shoving" him. (Dkt. No. 31 at 2.) After being put into "restraints" by Officer 9 2.) Upon arrival at the county jail, Officer Giovanelli punched him "until he was out of 11 breath." (Dkt. No. 31 at 2.) 12

On February 10, 2009, Plaintiff filed a lawsuit in San Francisco Superior Court against 14 then-Officer, now Sergeant Fong, Officer Giovanelli, and the San Francisco Police 15 Department ("SFPD"). (See Dkt. No. 40, Ex. A.) Plaintiff‟s form complaint listed causes of 16 action for intentional tort, general negligence, and "assault." (Id. at 3.) Specifically, Plaintiff 17 alleged: 18 19

I was assaulted by Officer D. Fong with pushing and shoving. I have prior injuries 20 from an arm robber/resulting to a 12 gauge shotgun blast to my upper right arm. 21

During completion of transportation during a j-walking arrest. Officer-Giovanelli 22 began repeatedly punching me while I was in restraints causing me to fall on the 23 restraint bar bench, dislocating my shoulder. And placing restraints on my wrist until 24 my wrist bled causing a sprained wrist. 25 26

On July 24, 2009, Plaintiff filed a First Amended Complaint. (See Dkt. No. 40, Ex. B.)

After the City‟s demurrer for failure to state a claim was sustained with leave to amend (id. at

Giovanelli, Officer Fong "bust[ed] [his] lip against the ihop window" nearby. (Dkt. No. 31 at 10


(See Dkt. No. 40, Ex. A.) 27

Ex. C), Plaintiff failed to amend his complaint. Then in December 2009, the Court granted 2

27, 2010, judgment was entered in Defendants‟ favor. (Id. at Ex. F.) The San Francisco 4

On May 7, 2010, Plaintiff filed a second lawsuit in San Francisco Superior Court which 6 was removed by the City to federal court on grounds that the allegations created federal court 7 jurisdiction under 42 U.S.C. § 1983. (Dkt. No. 1 at 2.) Plaintiff subsequently amended the 8 complaint and identified Officer Fong, Officer Giovanelli, and the SFPD as defendants. (See 9

"became hostile and started shoving" Plaintiff (id. at Ex. G) and that Officer Giovanelli 11 punched Plaintiff and slammed him into a "steel restraint bar." (Id.). 12

to Federal Rule of Civil Procedure 56. (Dkt. No. 39.) 14

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,

16 and admissions on file, together with the affidavits, if any, show that there is no genuine issue 17 as to any material fact." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a 18 sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving 19 party, and a dispute is "material" only if it could affect the outcome of the suit under 20 governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 21

22 essential element of each claim on which they seek judgment or showing that Plaintiff cannot 23 produce evidence sufficient to satisfy his burden of proof at trial. Nissan Fire & Marine Ins. 24

Co., Ltd. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once Defendants meet that 25 burden, Plaintiff, as the non-moving party, must show that a material factual dispute exists. 26

California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Allegations alone are not sufficient 27 to meet Plaintiff‟s burden; instead, Plaintiff must submit admissible evidence. Devereaux v. 28

Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). This evidence must be such that a reasonable

Defendants‟ motion to dismiss the lawsuit with prejudice. (Id. at Ex. D, E.) On September 3

Superior Court records do no indicate that Plaintiff has appealed this adverse ruling. 5

Dkt. No. 40, Ex. G.) The complaint alleges that while arresting Plaintiff, Officer Fong 10

Now pending before the Court is Defendants‟ motion for summary judgment pursuant


Defendants, as the moving parties, have the burden of producing evidence negating an trier of fact could return a verdict in Plaintiff‟s favor. Triton Energy Corp. v. Square D Co., 2 68 F.3d 1216, 1221 (9th Cir. 1995). 3

Because Defendants argue that the prior state court judgment ("Morgan I") precludes

Plaintiff from litigating this case, the Court begins by examining when a state court decision 6 has a preclusive effect on a federal proceeding. 7

8 public Acts, Records, and judicial Proceedings of every other State." U.S. Const. art. IV, § 1. 9


The Constitution provides that "Full Faith and Credit shall be given in each State to the

In order to effectuate this provision and extend its reach to the federal courts, Congress 10 enacted 28 U.S.C. § 1738, which provides that the "Acts, records, and judicial proceedings" of 11 "any State.of the United States.shall have the same full faith and credit in every court 12 within the United they have by law or usage in the courts of such state.from which they are taken." Section 1738 requires that federal courts "give to a state-court 14 judgment the same preclusive effect as would be given that judgment under the law of the 15 U.S. 75, 81 (1984). 17

18 the state‟s rules of preclusion. Kremer v. Chem. Const. Corp., 456 U.S. 461, 482 (1982). 19

According to the Supreme Court, "[t]he preclusive effect of a judgment is defined by claim 20 preclusion and issue preclusion, which are collectively referred to as "res judicata.‟" Taylor v. 21 Sturgell, 533 U.S. 880, 892 (2008). Claim preclusion bars successive litigation of a claim on 22 which a final judgment has already been made, whether or not relitigation of the claim raises 23 the same issues as the earlier suit. Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748 24 (2001)). Issue preclusion, in contrast, bars successive litigation of an issue of fact or law 25 actually litigated and resolved in a valid court determination essential to the prior judgment, 26 even if the issue recurs in the context of a different claim." Id. (quoting New Hampshire, 532 27

U.S. at 748-49). The rules of claim and issue preclusion apply equally to section 1983 actions 28 in federal courts. Allen v. McCurry, 449 U.S. 90, 98 (1980).

State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of Ed., 465 16

In determining the preclusive effect of a state court judgment, the federal courts follow

California‟s claim preclusion doctrine precludes relitigation of a cause of action where

2 a "valid final judgment on the merits in favor of a defendant" has been issued on the same 3 cause of action. Slater v. Blackwood, 543 P.2d 593, 594 (Cal. 1975). California applies the 4 primary rights theory in determining what constitutes the "same cause of action", under which 5 the invasion of one primary right gives rise to a single cause of action. Id. The "most salient 6 characteristic of a primary right is that it is indivisible: the violation of a single primary right 7 gives rise to but a single cause of action." Mycogen Corp. v. Monsanto Co., 28 Cal. 4th 888, 8

904 (2002). The primary right theory prevents plaintiffs from invoking the same violation in 9 two lawsuits by either of two means: (1) if the first suit is still pending when the second is 10 filed, the defendant in the second suit may plead that fact in abatement; or (2) if the first suit 11 has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second 12 suit may set up that judgment as a bar under the principles of res judicata [claim preclusion]."

Id. In California, dismissal with prejudice is the equivalent of a final judgment on the merits. 14

Applying these principles to this case leads the Court to conclude, under California‟s

16 claim preclusion doctrine, that Morgan I precludes Plaintiff from claiming that Defendants 17 used excessive force against him during his August 15, 2008 arrest. 18 19 instant case presents the identical excessive force issue that Morgan I presented: Plaintiff 20 admitted as much in an October 25, 2011 deposition during which he confirmed that the 21 misconduct that both lawsuits allege is exactly the same. (See Dkt. No. 39, Morgan Depo. at 22

25:10-12, 25:24-26:5, 26:17-23, Oct. 25, 2011.) Plaintiff‟s Morgan I complaint listed causes 23 of action for intentional tort and assault (see Dkt. No. 40, Ex. A), and the instant complaint 24 makes claims for "excessive force" and "depravation of rights" in connection with the same 25 arrest (See Dkt. No. 40, Ex. G.) Additionally, the parties to Morgan I and the instant action 26 are the same: Plaintiff lists as defendants Officer Fong, Officer Giovanelli, and the SFPD in 27 both complaints. (Compare Dkt. No. 40, Ex. A, with Dkt. No. 40, Ex. G.) 28

Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788, 804 (2010). 15

Plaintiff now to enforce the same primary right that he invoked in Morgan I. The

Lastly, the San Francisco Superior Court disposed of Morgan I in a manner that

2 constitutes a final judgment on the merits under California law. The case was dismissed with 3 prejudice, which in California is equivalent to issuing a final judgment on the merits. Boeken

48 Cal. 4th at 804. Accordingly, claim preclusion bars all of Plaintiff‟s claims.


All of Plaintiff‟s claims are barred by claim preclusion as a matter of law. Therefore,

Defendants‟ motion for summary judgment is GRANTED. 8 9



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