The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss on grounds that this action is barred by the statute of limitations and on grounds that plaintiff's claims are barred by the doctrine of res judicata. The motion is made on behalf of all defendants but for defendant Mangis who has not yet been served.*fn1
After carefully considering the record, the undersigned recommends that defendants' motion be granted. ////
The doctrine of res judicata protects "litigants from the burden of relitigating an identical issue" and promotes "judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). The court bars a claim where there is an identity of claims, a final judgment on the merits, and privity between parties. See Mpoyo v. Litton Electro--Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). An identity of claims exists if the two actions arise out of the same transactional nucleus of facts. Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes, 323 F.3d 767, 770 (9th Cir. 2003). Res judicata "bar [s] all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties ... on the same cause of action." Constantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (quoting Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980)).
Res judicata is generally jurisdictional; therefore the motion to dismiss is properly made under Federal Rule of Civil Procedure 12(b)(1). See Lande v. Billings Hospitality, Inc., 2008 WL 4180002, *1 (D.Mont. 2008).
This action is proceeding on the amended complaint filed October 19, 2011, as to defendants Gillette, Barton, Callison, Dial, Roche, Rohlfing, Davey, Mangis, Leo and James. Defendants argue that plaintiff filed an amended complaint in Armstrong v. Garcia, 2:08-cv-0039 FCD KJM P (hereinafter "08-cv-0039"), which made identical allegations against those named as defendants in the instant action.
The undersigned below compares the claims on which the instant action is proceeding with those made in 08-cv-39.
Alleged Denial of Access to Wheelchair
In the instant action, plaintiff alleges that defendants Gillette, Barton, Callison, and Dial refused to allow him to use a wheelchair from March 23, 2004, through July 2, 2004. (Dkt. No. 21 at 3-4, 10.) Plaintiff alleges that in December 2004, defendants Roche and Rohlfing denied his administrative grievances requesting access to a wheelchair. (Id. at 12.) Plaintiff alleges that defendant Davey seized his wheelchair by force. (Id. at 18-19.)
In the operative amended complaint filed in 08-cv-39, plaintiff alleged that beginning in March 2004*fn2 , defendants Gillette, Barton, Callison and Dial denied him access to a wheelchair.*fn3 (08-cv-39, Dkt. No. 34 at 11:18-25, 26-28; 12:1-4, 7-10, 18-18; 13:1-9.) Plaintiff alleged that defendants Roche and Rohlfing denied his December 2004 administrative appeals requesting access to a wheelchair. (Id. at 23:1-5.) Plaintiff alleged that defendant Davey forcibly removed plaintiff from his wheelchair. (Id. at 23:15-23.) On May 21, 2009, the Honorable Kimberly J. Mueller ordered service of those Eighth Amendment claims. (08-cv-39, Dkt. No. 39.)
On June 15, 2010, in 08-cv-39, the Honorable Frank C. Damrell dismissed the claims against defendant Gillette without prejudice. (08-cv-39, Dkt. No. 102.) Accordingly, the doctrine of res judicata is not applicable to the claims against defendant Gillette because the claims against defendant Gillette were not previously adjudicated on the merits.
While plaintiff may have named defendant Davey as a defendant in 08-cv-39, defendant Davey was not served in 08-cv-39. Accordingly, the doctrine of res judicata is not applicable to the claims against defendant Davey because the claims against defendant Davey were not previously adjudicated on the merits.
Plaintiff's claims in the instant action regarding denial of access to a wheelchair made against defendants Barton, Callison, Dial, Roche and Rohfling are identical to those made against these defendants in 08-cv-39. On June 15, 2010, in 08-cv-39, the Honorable Frank C. Damrell dismissed the claims made against defendants Barton, Callison, Dial, Roche and Rohfling regarding denial of ...