Allah v. Songer et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending Dismissing 1 Action as Duplicative/Barred by Res Judicata and Frivolous signed by Magistrate Judge Gerald B. Cohn on 5/18/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 6/21/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GIFT A. Z. DIVINE ALLAH,
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CASE NO. 1:09-cv-01960-LJO-GBC
Plaintiff,
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSING ACTION AS
DUPLICATIVE/BARRED BY RES JUDICATA
AND FRIVOLOUS
v.
M. SONGER, et al.,
Defendants.
/ (Doc. 1)
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Plaintiff Gift A. Z. Divine Allah (“Plaintiff”) is proceeding pro se in this civil action pursuant
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to 42 U.S.C. § 1983. On November 9, 2009, Plaintiff filed this 1983 action which was assigned the
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case number 1:09-cv-01960-LJO-GBC. Upon review of this case, this Court has concluded that the
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complaint submitted on November 9, 2009, is substantively identical to the complaint that Plaintiff
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filed on October 15, 2009, in the case Allah v. Vasquez, et al., 1:09-cv-01888-MJS, which was
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dismissed with prejudice on September 10, 2010, for failure to state a claim and failure to prosecute.
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The Court also notes that a similar case, Allah v. Vasquez, et al.,1:09-cv-02019-OWW-DLB, was
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dismissed on December 15, 2009, as duplicative of Allah v. Vasquez, et al., 1:09-cv-01888-MJS.
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The doctrine of res judicata bars the re-litigation of claims previously decided on their
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merits. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). “The elements
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necessary to establish res judicata are: ‘(1) an identity of claims, (2) a final judgment on the merits,
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and (3) privity between parties.’” Headwaters, Inc., 399 F.3d at 1052 (quoting Tahoe-Sierra Pres.
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Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.2d 1064, 1077 (9th Cir. 2003)). “[I]f a court
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is on notice that it has previously decided the issue presented, the court may dismiss the action sua
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sponte, even though the defense has not been raised,” Arizona v. California, 530 U.S. 392, 416
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(2000), provided that the parties have an opportunity to be heard prior to dismissal, Headwaters,
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Inc., 399 F.3d at 1055. Generally a person who is not a party to an action is not entitled to the
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benefits of res judicata. However, where “two parties are so closely aligned in interest that one is
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the virtual representative of the other, a claim by or against one will serve to bar the same claim by
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or against the other.” Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405. “There is privity between
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officers of the same government so that a judgment in a suit between a party and a representative of
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the United States is res judicata in relitigation of the same issue between that party and another
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officer of the government.” Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03 (1940).
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Same as this case, Allah v. Vasquez, et al., 1:09-cv-01888-MJS, involved falsification of
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medical records and medical malpractice claims stemming from misdiagnosis of Plaintiff having
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Hepatitis C, Glaucoma and erroneously prescribing the seizure medication Dilantin when in fact
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Plaintiff believes his medical problems stem from diabetes. Same as this case, Plaintiff’s claims are
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against officers of the same government who are in privity with one another. Different defendants
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have been added to this case: Chief Medical Officer (“CMO”), Dr. M. Songer; CMO A. Klang;
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“FNP” Garza; Dr. Odeluga; CMO Jack St. Claire; Dr. Mathos; CMO Curtis Allen; Dr. Booker; Dr.
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K. Low and; Dr. Win. (Doc. 1). Presumably, these new Defendants are added to this case for their
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roles in the above mentioned claims of falsifying medical records and misdiagnosing Plaintiff. (Doc.
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1). The court in Allah v. Vasquez, et al., 1:09-cv-01888, made a final judgment on the merits of the
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case, finding that Plaintiff failed to state a claim upon which relief may be granted. Allah v. Vasquez,
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et al., 1:09-cv-01888 (Docs. 17, 21).
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The case currently before the Court stems from the medical claims which were previously
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litigated against defendants in privity with parties in Allah v. Vasquez, et al., 1:09-cv-01888. A
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prisoner’s claims are considered frivolous if it “merely repeats pending or previously litigated
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claims.” See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (quoting Bailey v.
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Johnson, 846 F.2d 1019, 1021 (5th Cir.1988)). Therefore, the Court finds that this current case,
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Allah v. Songer, et al., 1:09-cv-01960-LJO-GBC, is bared by res judicata and was merely duplicative
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of the previously dismissed suit for failure to state a claim (Allah v. Vasquez, et al., 1:09-cv-01888).
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Thus, this action is also frivolous. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995).
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In light of the duplicative nature of the instant action, the Court HEREBY RECOMMENDS
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that the instant action be DISMISSED as barred by res judicata, duplicative and frivolous.
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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 Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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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
May 18, 2011
UNITED STATES MAGISTRATE JUDGE
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