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Bak v. Donahoe

United States District Court, C.D. California

April 7, 2015

UEON BAK, Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General, et al., Defendants.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

BACKGROUND

On July 1, 2014, Plaintiff paid the filing fee and filed a pro se civil rights Complaint against United States Postmaster General Patrick R. Donahoe.[1] The Complaint, which is not a model of clarity, appears to allege Plaintiff was unlawfully forced to resign from his job with the United States Postal Service in 1989. The Complaint asserts that, after Plaintiff took a day off work to care for his minor daughter, Plaintiff's supervisor deemed Plaintiff "AWOL." Plaintiff then allegedly became upset and resigned from his job, effective September 1, 1989. Later that day, however, Plaintiff assertedly told personnel manager Margaret "Peggy" Oliver that Plaintiff wished to rescind his resignation. Oliver allegedly said she would tear up the resignation. Plaintiff assertedly continued to work until September 10, 1989. Plaintiff alleges that Oliver "forged" the effective date of the resignation, assertedly changing the date to September 11, 1989, and then allegedly told Plaintiff that Plaintiff's resignation would be effective on September 11. Due to this purportedly "forced resignation, " Plaintiff assertedly lost his career and his home. Attached to the Complaint are various documents, including:

1. a copy of an order of the United States Equal Opportunity Employment Commission ("EEOC"), dated May 1, 2014, denying reconsideration of the EEOC's 2013 decision rejecting Plaintiff's discrimination claim on the ground that the claim had been "fully litigated through the EEO process, U.S. District Court, the 9th Circuit Court of Appeals, and the U.S. Supreme Court";

2. a partial copy of the decision of the United States Court of Appeals for the Ninth Circuit in Bak v. Postal Service, 52 F.3d 241 (9th Cir. 1995) (discussed further below);

3. an interim Order issued by an EEOC administrative law judge, dated December 4, 2000; and

4. copies of documents bearing the case numbers of several of Plaintiff's appeals in other cases in the United States Court of Appeals for the Ninth Circuit (discussed further below).

On January 29, 2015, Defendant Donahoe and the United States Postal Service filed a Motion to Dismiss on the ground that this action assertedly is barred by the doctrine of res judicata. On March 6, 2015, Plaintiff filed an Opposition.

STANDARDS GOVERNING MOTION TO DISMISS

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Zucco Partners, LLC v. Digimatic Corp., 552 F.3d 981, 989 (9th Cir. 2009) (on motion to dismiss, court takes as true all non-conclusory factual allegations in the complaint and construes the complaint in the light most favorable to the plaintiff). "Generally a court may not consider material beyond the complaint in ruling on a Fed.R.Civ.P. 12(b)(6) motion." Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (citation and footnote omitted). However, the Court may consider matters properly the subject of judicial notice. See id.

The Court may not dismiss a complaint without leave to amend unless "it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citations and quotations omitted); see also Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (district court should grant leave to amend "unless it determines that the pleading could not possibly be cured by the allegation of other facts") (citation and internal quotations omitted).

PLAINTIFF'S PRIOR ACTIONS

In each of the below-described prior actions, Plaintiff asserted claims arising out of the same 1989 resignation or termination from the Postal Service ...


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