The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS*fn1
Plaintiff, a state prisoner incarcerated at High Desert State Prison ("HDSP"), proceeds in forma pauperis and without counsel in this civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the initial screening of plaintiff's complaint, under 28 U.S.C. § 1915A(b), the undersigned found that it "states a potentially cognizable Eighth Amendment claim for relief against sole-named defendant Reddy." (Dkt. No. 4 at 2.) Pending is defendant's motion to dismiss this action, on the ground that plaintiff's claim is: (1) precluded under the doctrine of res judicata; or (2) alternatively, fails to state a claim upon which relief can be granted. Plaintiff opposes the motion.*fn2 (Dkt. Nos. 15, 17, 20, 21.) Defendant filed a reply to plaintiff's first-filed opposition. (Dkt. No. 16.)
For the reasons that follow, the undersigned recommends that defendant's motion to dismiss be granted, with leave granted to plaintiff to file an amended complaint.
II. Defendant's Motion to Dismiss
Defendant contends that the instant action is precluded under the doctrine of res judicata, because there was a final judgment on the merits of plaintiff's Eighth Amendment claim against Dr. Reddy in Ellis v. Hill et al., Case No. 2:11-cv-0363 GEB CKD P. Defendant further contends, alternatively, that plaintiff has failed to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).
A motion to dismiss, based on res judicata grounds, is properly made pursuant to Federal Rule of Civil Procedure 12(b)(1). See, e.g., Gupta v. Thai Airways Intern., Ltd., 487 F.3d 759, 763 (9th Cir. 2007). "Res judicata ensures the finality of decisions. Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes." Brown v. Felsen, 442 U.S. 127, 131 (1979) (citations and internal quotations omitted).
"The analysis of whether two suits involve an identity of claims is a pragmatic determination and a matter of degree." Durney v. WaveCrest Laboratories, LLC 441 F.Supp. 2d 1055, 1063 (N.D. Cal. 2005). "[T]he temporal relationship of the two courses of conduct at issue is taken into account in determining whether they are transactionally related or not. " Id. Significantly, "[a] claim arising after the date of an earlier judgment is not barred, even if it arises out of a continuing course of conduct that provided the basis for the earlier claim." Frank v. United Airlines, Inc., 216 F.3d 845, 851 (9th Cir. 2000) (citing Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 328 (1955); see also International Techs. Consultants, Inc. v. Pilkington, PLC, 137 F.3d 1382, 1388 (9th Cir. 1998) ("By winning the first action, the defendants did not acquire immunity in perpetuity . . . .") (internal citation and quotation marks omitted).
"In order to bar a later suit under the doctrine of res judicata, an adjudication must
(1) involve the same 'claim' as the later suit, (2) have reached a final judgment on the merits, and
(3) involve the same parties or their privies." Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993) (citations omitted).
2. Plaintiff's Instant Complaint
In the present action, plaintiff relies on the June 17, 2010 treatment note of Nurse Practitioner S. Kansier, R.N., FNP, to support the allegation that plaintiff has hemorrhoids. Nurse Kansier's one-page treatment note diagnoses "hemorrhoid," and recommends that plaintiff continue taking fiber and a stool softener, increase his water intake, and obtain prescriptions for "Proctofoam HC" (topical cortisone), and Motrin. (See Dkt. No. 1 at 6, 7 (duplicate pages).) Plaintiff relies on this diagnosis to support his allegation that his treating physician, defendant Dr. Reddy, had previously been wrong in diagnosing, treating, and referring plaintiff for a putative prostate problem. Plaintiff alleges that he has since followed, "for at least a year and a half," the medical advice of Dr. Reddy that he use Anusol (topical cortisone), and ingest fiber and stool softeners. (Dkt. No. 1 at 5.) However, plaintiff alleges, he has "complained to Doctor Reddy that the medication doesn't work period [but] Dr. Reddy stated that there's nothing she could do." (Id.) Plaintiff asserts that he is in "constant pain, which is burning, slight bleeding and swellen (sic) that makes it difficult to pass stool and sometimes urine." (Id. at 3.) Plaintiff asserts that he "has suffered, is suffering and continues to suffer physical and mental emotional [pain] also injuries in the form of damage to the internal bowel rectum and a herneah (sic) possibly from straining." (Id. at 5.)
The instant complaint further alleges that Dr. Reddy "isn't properly trained" to treat plaintiff's medical issues and thus "ignores the problem." (Id. at 3.) The complaint alleges that Dr. Reddy's failure to respond to plaintiff's complaints is "willful, intentional, malicious, wanton and despicable." (Id. at 4. ) Plaintiff alleges a violation of his Eighth Amendment rights, and seeks damages and injunctive relief, the latter including "free[dom] from pain," and referral to a ...