United States District Court, E.D. California
LACEDRIC W. JOHNSON, Plaintiff,
ISAAC GONZALEZ, et al., Defendants.
IF ANY, DUE IN THIRTY DAYS
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT
DEFENDANTS' MOTION FOR COSTS AND STAY BE DENIED (ECF No.
LaCedric W. Johnson is a state prisoner proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. The case is
currently proceeding on the Second Amended Complaint (the
“SAC”) filed by Plaintiff on April 22, 2016. (ECF
No. 13.) The SAC names Defendants Isaac Gonzalez and A.
Martinez and alleges federal and state claims for denial of
access to courts in violation of the First Amendment. In
particular, the SAC alleges that the Defendants searched
Plaintiff's cell on September 18, 2012 and destroyed
documents related to several different state and federal
cases that Plaintiff was litigating at the time.
December 12, 2016, Defendants filed a Motion for Costs and
Request for Stay under Rule 41(d) of the Federal Rules of
Civil Procedure. Defendants contend that Plaintiff previously
filed identical claims in state court, voluntarily dismissed
the state case, and proceeded to file the present case in
federal court. Defendants ask the Court to require Plaintiff
to pay the costs they incurred in litigating the state case
and to place a stay on the present case until those costs are
August 19, 2013, Plaintiff filed a complaint in Fresno County
Superior Court. (Defendants' Request for Judicial Notice,
Exh. A, ECF No. 24 (the “State Complaint”).) The
State Complaint named correctional officers I. Gonzalez and
A. Martinez as defendants and alleged that on September 18,
2012, both defendants searched his property and confiscated
or destroyed property relating to “Ninth Circuit Case
No. 11-16994, 12-16655, U.S.D.C. Eastern District of
California Case No. 2:08-CV-1609-KJM-KJN, U.S.D.C. Northern
District of California Case No. 12-0720 JST, and a state
appeal SC36915, A136223, S204477.” (State Complaint
¶ 6.) Plaintiff alleged two causes of action against
defendants: one for conversion and one for intentional
infliction of emotional distress.
State Complaint was served and the defendants filed a
demurrer. On December 12, 2013, the demurrer was sustained on
the IIED claim but overruled on the conversion claim.
alleges that on January 29, 2014, he was subjected to a strip
search by a group of correctional officers in the shower.
Defendants Gonzalez and Martinez were not among the
correctional officers. Plaintiff alleges that he was then
pepper-sprayed and beaten by the correctional officers, that
he was hog-tied, and that the officers placed a hood over his
head to prevent decontamination from the pepper-spray. This
conduct is the subject of a separate complaint that Plaintiff
filed in Johnson v. Frauenheim et al., Case No.
1:14-cv-01601-LJO-SKO on October 10, 2014. Plaintiff
initiated at least one of the staff complaints in the CDCR
appeals process for Johnson v. Frauenheim on March
April 23, 2014, Fresno County Superior Court dismissed the
State Complaint after Plaintiff filed a request to
voluntarily dismiss the action. Plaintiff then filed his
initial complaint in this case on July 28, 2014. (ECF No. 1.)
His complaint in the current case alleges that on September
18, 2012, Defendants I. Gonzalez and A. Martinez searched his
property and confiscated or destroyed documents relating to
several court cases.
REQUESTS FOR JUDICIAL NOTICE
parties have requested that the Court take judicial notice of
a variety of documents. Defendants ask the Court to take
judicial notice of the State Complaint, the order regarding
the demurrer to the State Complaint, and the order granting
voluntary dismissal of the State Complaint. Plaintiff asks
the Court to take judicial notice of the complaint he filed
in Johnson v. Frauenheim, et al., case no.
1:14-cv-01601-LJO-SKO. Neither party objects to the requests
for judicial notice and all the records for which notice is
sought are public court records maintained by either the U.S.
District Court or Fresno County Superior Court.
may take judicial notice of facts “not subject to
reasonable dispute” when they are either: “(1)
generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” Fed.R.Evid. 201. The Court
takes judicial notice of the requested documents. U.S. v.
Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011)
(courts may “take judicial notice of ‘matters of
public record'”). The Court notes, however, that
its ability to take judicial notice of these records is
limited to notice of the existence of these records and the
proceedings described therein-the Court cannot judicially
notice disputed facts within those documents. For example,
the Court may take judicial notice of the facts that
Plaintiff filed complaints in Johnson v. Frauenheim
and in the Fresno County Superior Court case, but may not
assume the truth of any of the facts alleged in those
complaints. Lee v. City of Los Angeles, 250 F.3d
668, 690 (9th Cir. 2001) (“when a court takes judicial
notice of another court's opinion, it may do so
‘not for the truth of the facts recited therein, but
for the existence of the opinion, which is not subject to
reasonable dispute over its authenticity'”),
quoting S. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir.
Rule 41(d) of the Federal Rules of Civil Procedure, a
plaintiff may be required to pay the costs incurred in prior
litigation against the same defendants:
If a plaintiff who previously dismissed an action in any
court files an action based on or including the same claim