ORDER GRANTING EXTENSION AND GRANTING MOTION TO DISMISS
PHYLLIS J. HAMILTON, District Judge.
This is a civil rights case filed pro se by a state prisoner. Defendants have filed a motion to dismiss on the grounds that this case is barred by the statute of limitations, it fails to state a claim upon which relief can be granted and it is barred by res judicata. Plaintiff has filed an opposition and defendants have replied. For the reasons set out below, the motion will be granted.
This action continues on the amended complaint (Docket No. 13) concerning conditions of confinement at Pelican Bay State Prison (PBSP). Plaintiff alleges that he was exposed to a risk of serious illness because every time the prisoner in the next cell flushed the toilet, some of the waste came up in plaintiff's toilet and he is required by prison authorities to clean his toilet using a paper towel and spoonful of cleanser, without protective gear. Plaintiff states that prison officials fitted the toilets with flush restrictors which are timers that restrict the frequency with which prisoners can flush, but that has not solved the problem. Plaintiff seeks money damages and injunctive relief. Plaintiff has since been transferred to another prison.
I. Res Judicata Standard
The federal courts have traditionally adhered to the related doctrines of res judicata. See Allen v. McCurry, 449 U.S. 90, 94 (1980). Under res judicata, a final judgment on the merits bars further claims by parties or their privies based on the same cause of action. The doctrine of res judicata, or claim preclusion, "bars 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.''" C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir. 1987) (citing McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986)).
Under the Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, "a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see Adam Bros. Farming, Inc. v. County of Santa Barbara, 604 F.3d 1142, 1148 (9th Cir. 2010) (same).
There is no exception to the rules of issue and claim preclusion for federal civil rights actions under 42 U.S.C. § 1983 . See Clark v. Yosemite Community College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986). The Supreme Court has made it clear that a § 1983 claim brought in federal court is subject to principles of issue and claim preclusion by a prior state court judgment. See Allen v. McCurry, 449 U.S. 90, 97-98 (1980) (issue preclusive effect in federal court of state proceedings is same as that accorded in state's own courts); Migra, 465 U.S. at 84 (extending rule of Allen to cover claim preclusion as well as issue preclusion).
A civil rights action under § 1983 may be dismissed as barred by res judicata, for example, if a prior California state court judgment rendered a valid judgment on the merits in favor of a defendant. See Takahashi v. Bd. of Trustees, 783 F.2d 848, 850-51 (9th Cir. 1986) (citing Slater v. Blackwood, 15 Cal.3d 791, 795 (1976)). It does not matter that the plaintiff had no opportunity to litigate the claim in a federal forum. Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir. 1993). State habeas proceedings also can have issue or claim preclusive effect on later § 1983 actions. See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1347 (9th Cir. 1981) (state habeas proceeding precludes identical issue from being relitigated in subsequent § 1983 action if state habeas court afforded full and fair opportunity for issue to be heard).
Res judicata prohibits a second lawsuit involving the (1) same controversy (2) between the same parties or their privies (3) so long as the prior lawsuit was a final judgment on the merits. Mycogen Corp. v. Monsanto Co., 28 Cal.4th 888, 896-97 (2002). It also applies to those claims which could have been litigated as part of the prior cause of action. See Clark, 785 F.2d at 786. A plaintiff cannot avoid the bar of claim preclusion merely by alleging conduct by the defendant not alleged in the prior action, or by pleading a new legal theory. See McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986).
On May 29, 2007, plaintiff filed a petition for writ of habeas corpus in Del Norte Superior Court concerning the defective plumbing at PBSP. Am. Compl. at 9. That petition was denied, and plaintiff filed a petition with the California Court of Appeals First District. Id. at 25. The allegations to the Court of Appeals were the same as the allegations of this action. Id. a 27-30. The Court of Appeals ordered defendants to show cause and they filed a response. Id. at 59-66. Plaintiff, who came to be represented by counsel, filed a traverse that contained the same allegations as this action. Id. at 69-85. The Del Norte Superior Court then granted the petition and ordered defendants to repair the toilets and until fixed, disable the flush restrictors that restrict the frequency with which prisoners can flush. Id. at 91-92.
Plaintiff's claims are barred by res judicata because the record shows that all elements of that doctrine are met. There is no doubt that both actions involved the same controversy between the same parties and there was a final judgment on the merits. In his opposition, plaintiff concedes as much but contends however that the flush restrictor aspect of this action has never been litigated before. Opposition at 2. Yet, this issue was discussed in plaintiff's traverse to the state habeas petition and in the court order granting the habeas petition. Am. Compl. at 71, 92. "Until Phase Two of this project is ...