United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, with a civil
rights action pursuant to 42 U.S.C. § 1983. This action
proceeds on the amended complaint filed September 5, 2017, as
to defendants Curren, Haring, Hinrichs, Lynch, Virga, Walcott
and Wright. (ECF No. 13.)
before the court is the motion to dismiss filed on behalf of
defendants Haring, Hinrichs, Lynch, Walcott, Wright and
Virga. (ECF No. 41.) Defendant Curren has not been served.
opposition, plaintiff voluntarily dismisses defendants
Curren, Wolcott and Wright. (ECF No. 47 at 12.) On May 10,
2019, the undersigned recommended dismissal of defendant
Curren based on plaintiff's failure to provide documents
for service of defendant Curren. (ECF No. 45.) Accordingly,
the May 10, 2019 findings and recommendations are vacated.
Defendants Curren, Wolcott and Wright are dismissed pursuant
to Federal Rule of Civil Procedure 41(a).
move to dismiss plaintiff's amended complaint for failing
to state potentially colorable claims for relief, pursuant to
Federal Rule of Civil Procedure 12(b)(6). Defendants also
move to dismiss plaintiff's claims on the grounds that
they are barred by the doctrine of res judicata. Finally,
defendants move to dismiss the claims on the grounds of
reasons stated herein, the undersigned recommends that
defendants' motion be granted.
action proceeds on the amended complaint filed September 5,
2017. (ECF No. 13.) Plaintiff filed an amended complaint on
September 1, 2017, that contains several exhibits. (ECF No.
12.) In the September 5, 2017 amended complaint, plaintiff
refers to the exhibits attached to the September 1, 2017
amended complaint. As discussed herein, some of the exhibits
attached to the September 1, 2017 are incorporated by
September 5, 2017 amended complaint identifies defendant
Virga as the Warden of California State Prison-Sacramento
(“CSP-Sac”), where the alleged deprivations
occurred. (ECF No. 13 at 7.) The September 5, 2017 amended
complaint identifies defendant Haring as a Facility Sergeant.
(Id. at 7.) The September 5, 2017 amended complaint
does not describe the duties of defendants Hinrich and Lynch.
However, exhibits attached to the September 1, 2017 amended
complaint, to which plaintiff refers, indicate that defendant
Hinrichs is a Correctional Counselor and defendant Lynch is
the Appeals Coordinator, Defendants Hinrich, Lynch and
alleges that he requires single cell housing based on mental
illness. (ECF No. 13 at 2-3.) Plaintiff alleges that in 2004,
prison psychologist Dias requested that plaintiff receive
single cell status for mental health reasons. (Id.
at 4.) Prison officials at California State Prison-Centinella
denied this request. (Id.) Plaintiff alleges that
the failure of prison staff to accommodate his need for
special housing based on his mental health contributed to the
deterioration of his mental health. (Id.) As a
result of the deterioration of his mental health, plaintiff
was placed in the Crisis Treatment Center (“CTC”)
of various prisons for suicidal ideation/suicide attempts and
was involuntarily medicated for three years. (Id. at
alleges that in 2013, defendants Hinrich, Lynch and Virga
denied his requests for single cell housing on the grounds
that plaintiff did not have a history of in-cell physical or
sexual violence against a cellmate. (Id. at 2-3.) In
other words, defendants Hinrich, Lynch and Virga denied
plaintiff's request for single cell housing without
regard to plaintiff's mental health needs. Plaintiff
alleges that these defendants failed to consider his mental
health needs pursuant to a “practice or custom.”
(Id. at 13.) Plaintiff appears to claim that this
was a policy or practice of the California Department of
Corrections and Rehabilitation (“CDCR”), because
he alleges that in 2016, CDCR Secretary Kernan issued a
memorandum clarifying that prison staff were to consider,
among other things, inmate mental health when considering
whether to grant single cell status. (Id. at 3; ECF No.
12 at 32-34.)
alleges that in September 2011, he was housed in a cell
containing side-by-side beds pursuant to a policy carried out
by defendant Virga requiring certain disabled inmates to be
housed only in cells with side-by-side beds. (Id. at
7.) Plaintiff alleges that side-by-side beds aggravate his
mental illness. (Id. at 5.) Plaintiff alleges that
he expressed his housing concerns to defendant Haring.
(Id. at 7.) Plaintiff alleges that defendant Haring
refused to move him from the cell even after plaintiff warned
him that the housing arrangement would be harmful to his
mental disorder. (Id. at 7-8.)
judicata challenges may properly be raised via motion to
dismiss for failure to state a claim under Rule
12(b)(6).” Thompson v. Cty. of Franklin, 15
F.3d 245, 253 (2d Cir. 1994); see also Scott v.
Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).
the preclusive effect of a prior judgment is referred to as
res judicata. Taylor v. Sturgell, 553 U.S. 880, 892
(2008); Robi v. Five Platters, Inc., 838 F.2d 318,
321 (9th Cir. 1988). Res judicata includes both claim
preclusion and issue preclusion. Americana Fabrics, Inc.
v. L & L Textiles, Inc., 754 F.2d 1524, 1529 (9th
Cir. 1985); Robi, 838 F.2d at 321.
preclusion “bars litigation in a subsequent action of
any claims that were raised or could have been raised in the
prior action. . . . The doctrine is applicable whenever there
is (1) an identity of claims, (2) a final judgment on the
merits, and (3) identity or privity between parties.”
Owens v. Kaiser Foundation Health Plan, Inc., 244
F.3d 708, 713 (9th Cir. 2001) (internal citations and
quotation marks omitted). The Ninth Circuit has identified
four factors that should be considered by a court in
determining whether successive lawsuits involve an identity
(1) whether rights or interests established in the prior
judgment would be destroyed or impaired by prosecution of the
(2) whether substantially the same evidence is presented in
the two actions;
(3) whether the two suits involve infringement of the same
(4) whether the two suits arise out of the same transactional
nucleus of facts. See C.D. Anderson & Co. v.
Lemos, 832 F.2d 1097, 1100 (9th Cir.1987); accord
Headwaters Inc. v. United States Forest Serv., 399 F.3d
1047, 1052 (9th Cir. 2005); Littlejohn v. United
States, 321 F.3d 915, 920 (9th Cir. 2003). “The
central criterion in determining whether there is an identity
of claims between the first and second adjudications is
whether the two suits arise out of the same transactional
nucleus of facts.” Owens, 244 F.3d at 714.
issue preclusion bars “successive litigation of an
issue of fact or law actually litigated and resolved in a
valid court determination essential to the prior judgment,
whether or not the issue arises on the same or different
claim.” New Hampshire v. Maine, 532 U.S. 742,
749 (2001). “A party invoking issue preclusion must
(1) the issue at stake is identical to an issue raised in the
(2) the issue was actually litigated in the prior litigation;
(3) the determination of the issue in the prior litigation
must have been a critical and necessary part of the judgment
in the earlier action.” Littlejohn, 321 F.3d
at 923. The “actually litigated” requirement is
satisfied where the parties “have a full and fair
opportunity to litigate the merits of the issue.”
argue that plaintiff raised the same claims he now raises
against defendant Haring in Coleman v. CDCR, et al.,
2:13-cv-1021 JAM KJN P. On March 6, 2017, plaintiff
voluntarily dismissed 13-1021 with prejudice. (See
13-1021, ECF No. 131.) Defendants contend that a voluntary
dismissal with prejudice is a final judgment on the merits.
See Overby v. International Longshore and Warehouse Union
Local Chapter Eight, 2018 WL 7200662 at *8-9 (D. Ore.
2018) (a dismissal with prejudice in federal court general
constitutes a final judgment on the merits for ...