Strong v. Hubbard et al

Filing 32

FINDINGS and RECOMMENDATIONS Recommending Dismissal of This Action as Barred by Res Judicata, signed by Magistrate Judge Gerald B. Cohn on 1/30/2012, referred to Judge O'Neill. Objections to F&R Due Within Twenty-One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE BERRY STRONG,

CASE NO: 1:08-cv-00087-LJO-GBC (PC)

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Plaintiff,
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v.

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF THIS
ACTION AS BARRED BY RES JUDICATA

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SUSAN HUBBARD, et al.,
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Defendants.
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OBJECTIONS, IF ANY, DUE WITHIN
/ TWENTY-ONE DAYS

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I. Procedural Background

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On January 17, 2008, George Berry Strong (“Plaintiff’), a former state prisoner proceeding

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pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. On August

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12, 2009, Plaintiff filed an amended complaint. Doc. 15. On December 29, 2010, the Court adopted

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findings and recommendations, recommending dismissal of certain claims and finding a cognizable

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claim for Eighth Amendment deliberate indifference to medical need for prohibiting Plaintiff from

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wearing his personal tennis shoes to visitation. Doc. 20.

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Upon review of the complaint, the undersigned finds that this action is substantively identical

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to the previously decided case that Plaintiff filed on October 18, 2008, George Berry Strong v. O.

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Beregovskaya, 1:09-cv-00821-AWI-BAM, which was dismissed, with prejudice, on November 8,

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2011, for failure to state a claim.
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II. Res Judicata

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The doctrine of res judicata bars the re-litigation of claims previously decided on their merits.

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Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). Claim preclusion (res

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judicata) pertains to “the effect of a judgment in foreclosing litigation of a matter that never has been

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litigated, because of a determination that it should have been advanced in an earlier suit . . . ” Gospel

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Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003) (quoting Migra v.

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Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984)); see Owens v. Kaiser Found. Health

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Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (“Res judicata precludes the litigation of ‘any claims

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that were raised or could have been raised’ in a previous lawsuit.”). “The elements necessary to

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establish res judicata are: ‘(1) an identity of claims, (2) a final judgment on the merits, and (3) privity

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between parties.’” Headwaters, Inc., 399 F.3d at 1052 (quoting Tahoe-Sierra Pres. Council, Inc. v.

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Tahoe Reg’l Planning Agency, 322 F.2d 1064, 1077 (9th Cir. 2003)). “[I]f a court is on notice that

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it has previously decided the issue presented, the court may dismiss the action sua sponte, even

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though the defense has not been raised,” Arizona v. California, 530 U.S. 392, 416 (2000), provided

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that the parties have an opportunity to be heard prior to dismissal, Headwaters, Inc., 399 F.3d at

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1055. Generally a person who is not a party to an action is not entitled to the benefits of res judicata.

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However, where “two parties are so closely aligned in interest that one is the virtual representative

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of the other, a claim by or against one will serve to bar the same claim by or against the other.”

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Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993). “There is privity between officers

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of the same government so that a judgment in a suit between a party and a representative of the

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United States is res judicata in re-litigation of the same issue between that party and another officer

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of the government.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940).

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//
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III. Analysis

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A. Identity of Claims

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“Whether two events are part of the same transaction or series depends on whether they are

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related to the same set of facts and whether they could conveniently be tried together.” Western Sys.,

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Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). In applying the transaction test, the Court examines

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the following criteria:

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(1) whether rights or interests established in the prior judgment would
be destroyed or impaired by prosecution of the second action; (2)
whether substantially the same evidence is presented in the two
actions; (3) whether the two suits involve infringement of the same
right; and (4) whether the two suits arise out of the same transactional
nucleus of facts.

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Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982). “The last of these

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criteria is the most important.” Id. at 1202.

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On August 12, 2009, Plaintiff filed an amended complaint in the instant case, alleging claims

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against Susan Hubbard, director of the California Department of Corrections and Rehabilitation

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(“CDCR”), and Ken Clark, warden of the California State Abuse Treatment Facility at Corcoran

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(“CSATF”), for Eighth Amendment deliberate indifference to medical need for prohibiting Plaintiff

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from wearing his personal tennis shoes to visitation. Pl. Am. Compl. at 2-3, 9, 12, Doc. 15. In

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Plaintiff’s amended complaint, he chronologizes his foot issues, from 2000 through the 2008. Id. at

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7-10. Plaintiff alleges that on December 17, 2007, medical staff at CSATF examined Plaintiff and

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issued copies of a medical document stating he could wear his personal tennis shoes. Id. at 9.

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Plaintiff alleges that in December 2007, due to new rules adopted by Defendants, officers at CSATF

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prohibited Plaintiff from wearing his personal tennis shoes to visitation. Id. at 8. Plaintiff states that

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in December 2007 and January 2008, he sent a letter to Defendants regarding their failure to honor

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his medical chrono to wear personal tennis shoes to visitation. Id. at 9-10. As relief, Plaintiff seeks

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a declaratory judgment and punitive and compensatory damages. Id. at 13.

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Prior to filing the amended complaint in the instant case, on October 18, 2008, Plaintiff filed

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Strong v. Beregovskaya. In that action, Plaintiff alleged a claim against Defendant Olga
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Beregovskaya, a licensed medical doctor at CSATF, for Eighth Amendment deliberate indifference

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to medical need for failing to provide Plaintiff with a chrono to wear his personal tennis shoes to

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visitation. See Strong v. Beregovskaya, 1:09-cv-00821-AWI-BAM, Pl. Am. Compl. at 11-12, Doc.

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13. In Plaintiff’s amended complaint, he chronologizes his foot issues, from 2000 through the 2008.

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Id. at 6-11. Plaintiff alleges that in December 2007,1 officers at CSATF told Plaintiff he would have

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to obtain an updated medical chrono to wear his personal tennis shoes to visitation. Id. at 7. Plaintiff

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states that in May 2008, he sent a letter to the warden at CSATF regarding Beregovskaya’s failure

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to issue a personal tennis shoe chrono. Id. at 8. the As relief, Plaintiff sought punitive and

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compensatory damages. Id. at 13.
B. Final Judgment on the Merits

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On September 1, 2011, in Strong v. Beregovskaya, 1:09-cv-00821-AWI-BAM, the Magistrate

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Judge issued Findings and Recommendations recommending that the action be dismissed for failure

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to state a claim upon which relief may be granted. Doc. 17. Plaintiff did not file any objections, and

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on November 8, 2011, the District Judge adopted the Findings and Recommendations, dismissing

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the action, with prejudice, for failure to state a claim. Doc. 20.

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The undersigned concludes that the instant case, Strong v. Hubbard, et al.,

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1:08-cv-00087-LJO-GBC, stems from the claims which were previously litigated against the

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Defendants in privity in Strong v. Beregovskaya, 1:09-cv-00821-AWI-BAM. “Supreme Court

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precedent confirms that a dismissal for failure to state a claim under Rule 12(b)(6) is a ‘judgment

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on the merits’ to which res judicata applies. Federated Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3

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(1981).” Stewart v. U.S. Bancorp, 297 F.3d 953 (9th Cir. 2002).
C. Privity Between Parties

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The named defendants in the instant case, Defendant Hubbard, director of the CDCR and

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Defendant Clark, warden of CSATF, are in privity with Defendant Beregovskaya, the named

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defendant in the prior case, as an employee of CSATF and CDCR. See Nordhorn, 9 F.3d at 1405;

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In Plaintiff’s complaint, he writes December 2008, but from reading his chronology, it is clear that Plaintiff
meant December 2007. See id. at 7.
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see also Sunshine Anthracite Coal Co., 310 U.S. at 402-03; Adams v. California Dept. of Health

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Services, 487 F.3d 684, 691 (9th Cir. 2007). Moreover, Plaintiff chronologized his foot issues in both

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complaints and referenced the letters he sent to Defendants Hubbard and Clark in his complaint

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against Defendant Beregovskaya. Strong v. Hubbard, et al., 1:08-cv-00087-LJO-GBC, Pl. Am.

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Compl. at 7-10, Doc. 15; Strong v. Beregovskaya, 1:09-cv-00821-AWI-BAM, Pl. Am. Compl. at

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6-11, Doc. 13.
IV. Conclusion and Recommendation

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The undersigned finds that the claims in the previously decided case of Strong v.

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Beregovskaya, 1:09-cv-00821-AWI-BAM and the instant case of Strong v. Hubbard, et al.,

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1:08-cv-00087-LJO-GBC, involve the same transactional nucleus of facts against the same

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defendants in privity, alleging Eighth Amendment deliberate indifference to medical need for

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prohibiting Plaintiff from wearing his personal tennis shoes to visitation. Therefore, the undersigned

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hereby RECOMMENDS that this action be DISMISSED WITH PREJUDICE as barred by res

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judicata and duplicative of Strong v. Beregovskaya, 1:09-cv-00821-AWI-BAM.

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These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21)

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days after being served with these Findings and Recommendations, Plaintiff may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
0jh02o

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January 30, 2012
UNITED STATES MAGISTRATE JUDGE

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