United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING ACTION BE DISMISSED, WITH PREJUDICE, AS BARRED BY CLAIM PRECLUSION (Docs. 125 and 128)
SHEILA K. OBERTO, Magistrate Judge.
Plaintiff Kevin Darnell Bryant ("Plaintiff"), a state prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR") proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on March 17, 2011. This action is proceeding on Plaintiff's amended complaint against Defendants Schaefer, Lopez, Keldgord, Harrington, and Flynn ("Defendants") arising out of a prison policy and practice of crushing and floating inmates' medication, which allegedly caused internal injury to Plaintiff and resulted in a diagnosis of severe erosive esophagitis and esophageal hemorrhaging in July 2010. Plaintiff alleges that his rights under the Eighth Amendment of the United States Constitution were violated by Defendants' actions in accordance with the prison policy. The events at issue occurred at Kern Valley State Prison ("KVSP") in Delano, California.
On February 4, 2015, the undersigned, acting sua sponte, issued an order to show cause on the issue of claim and/or issue preclusion in light of a state court judgment against Plaintiff in Bryant v. Harrington . Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1054-55 (9th Cir. 2005). Defendants were ordered to file a response within thirty days and Plaintiff was ordered to file a response within thirty days from the date of service of Defendants' response. Headwaters Inc., 399 F.3d at 1055.
On March 5, 2015, Plaintiff filed a motion seeking an extension of time, and on March 6, 2015, Defendant Lopez filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Defendants Schaefer, Keldgord, Harrington, and Flynn filed notices of joinder on the same day. On March 10, 2015, the Court granted Plaintiff a forty-five day extension of time to file an opposition or a statement of non-opposition to Defendants' motion to dismiss. Plaintiff filed a second motion seeking a thirty day extension of time on April 8, 2015, and it was granted on May 1, 2015.
More than thirty days have since passed and Plaintiff has not filed a response. Accordingly, the order to show cause and Defendants' motion are submitted upon the record without oral argument, and for the reasons that follow, the Court recommends this action be dismissed, with prejudice, as barred by the doctrine of claim preclusion. Local Rule 230( l ).
A. Legal Standard
Following issuance of the order to show cause, Defendants moved pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss this action, with prejudice, as barred by claim preclusion. However, Rule 12(b)(1) provides for a defense based on lack of subject matter jurisdiction. The Court has subject matter jurisdiction over this federal civil rights case, 28 U.S.C. § 1331, and res judicata is an affirmative defense rather than a jurisdictional defense. Fed.R.Civ.P. 8(c); In re Sasson, 424 F.3d 864, 872 (9th Cir. 2005); Rotec Indus., Inc. v. Mitsubishi Corp., 348 F.3d 1116, 1119 (9th Cir. 2003). Therefore, Defendants' motion shall be construed as brought under Rule 12(b)(6) rather than 12(b)(1). Holcombe v. Hosmer, 477 F.3d 1094, 1096-97 (9th Cir. 2007); Stewart v. U.S. Bancorp, 297 F.3d 953, 955-56 (9th Cir. 2002); Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984) (per curiam); cf. Gupta v. Thai Airways Intern., Ltd., 487 F.3d 759, 763-64 (9th Cir. 2007) (federal claim against foreign airline barred by claim preclusion where state court determined in an earlier proceeding that it lacked subject matter jurisdiction pursuant to Foreign Sovereign Immunities Act).
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court's review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). However, courts may properly consider matters subject to judicial notice without converting the motion to dismiss to one for summary judgment, Harris, 682 F.3d at 1131-32; U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), and here, the Court takes judicial notice of court records in Bryant v. Harrington and Bryant v. Apotex, Inc., both sua sponte and pursuant to Defendants' request. Fed.R.Evid. 201; Harris, 682 F.3d at 1131-32.
B. Summary of Proceedings in Bryant v. Harrington and Bryant v. Apotex, Inc.
1. Bryant v. Harrington
In December 2010, Plaintiff filed suit in Kern County Superior Court. On June 28, 2012, the superior court granted summary judgment in favor of Kelly Harrington, Sherry Lopez, Dr. Schaefer, Matthew Cate, and J. Clark Kelso, and Plaintiff appealed the judgment, which was affirmed on October 14, 2015, by the Fifth District Court of Appeal. Bryant v. Harrington, No. F067290, 2014 WL 5392967, at *1-4 (Cal.Ct.App. 2014).
Bryant v. Harrington, 2014 WL 5392967, at *1-4.
On appeal, the court summarized Plaintiff's allegations as follows:
Bryant alleges that the CDCR's statewide policy for medical management, which authorizes the administration of certain medications in crushed form, constitutes medical negligence and an intentional tort or fraud. In his first cause of action, Bryant alleges that staff at the KVSP medical facility forced him to take his prescribed pain medications, Gabapentin and Tramadol, as well as Tylenol with codeine, crushed and floating in water despite medical documents which state that these medications should not be crushed. He asserts this method of administration caused him severe erosive esophagitis and esophageal hemorrhaging, and that ...