Hopper v. Wright et al

Filing 21

ORDER DISMISSING ACTION, With Prejudice, for Failure to State a Claim and as Barred by Res Judicata, signed by Magistrate Judge Gerald B. Cohn on 5/18/2012. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS L. HOPPER,

CASE NO: 1:10-cv-00055-GBC (PC)

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Plaintiff,

ORDER DISMISSING ACTION, WITH
PREJUDICE, FOR FAILURE TO STATE A
CLAIM AND AS BARRED BY RES
JUDICATA

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v.
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S. WRIGHT, et al.,
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Defendants.
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/ Doc. 14

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I. Introduction

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On January 11, 2010, Douglas L. Hopper (“Plaintiff’), a state prisoner proceeding pro se and

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in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging deprivation of

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property. Doc. 1. On February 15, 2011, the Court dismissed Plaintiff’s civil rights complaint with

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leave to amend. Doc. 9. On April 29, 2011, Plaintiff filed a first amended complaint. Doc. 14. On

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March 21, 2012, the Court issued an order to show cause as to why this action should not be

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dismissed, with prejudice, based on Plaintiff’s failure to state any claims upon which relief may be

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granted under § 1983 and as barred by res judicata. Doc. 15. On May 4, 2012, Plaintiff filed a

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response to the order to show cause. Doc. 19.

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II. Plaintiff’s First Amended Complaint Fails to State a Claim

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A. Screening Standard

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The Court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a

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claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint must contain “a short and plain statement of the claim showing that the pleader

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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

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do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge

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unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While

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factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.

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While prisoners proceeding pro se in civil rights actions are still entitled to have their

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pleadings liberally construed and to have any doubt resolved in their favor, the pleading standard is

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now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under § 1983, Plaintiff must

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demonstrate that each defendant personally participated in the deprivation of his rights. Jones v.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002). This requires the presentation of factual allegations

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sufficient to state a plausible claim for relief. Iqbal, 129 S. Ct. at 1949-50; Moss v . U.S. Secret

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Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting

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this plausibility standard. Iqbal, 129 S. Ct. at 1949-50; Moss, 572 F.3d at 969.

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B. Allegations in Plaintiff’s Case

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On January 11, 2010, Plaintiff filed a one hundred and eighty-one page complaint alleging

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denial of his legal and personal property against Defendants S. Wright, facility captain of the CDCR;

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Fernando Gonzales, Warden of California Correctional Institution, Tehachapi, California (“CCI”);

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B. Sanders, correctional lieutenant at CCI; J.G. Lopez, correctional sergeant at Pleasant Valley State

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Prison (“PVSP”); Correctional Officer Singleton, property officer at PVSP; R. Cruz, property officer

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at CCI; E. Noyce, correctional sergeant at CCI; and Doe Defendants. Compl. at 8-9, Doc. 1.
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On April 29, 2011, Plaintiff filed a first amended complaint alleging denial of his legal and

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personal property against Defendants R. Cruz, property officer at CCI; J.G. Lopez, correctional

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sergeant at PVSP; and Doe Defendant, correctional officer assigned to Investigative Service Unit at

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PVSP. Am. Compl. at 6, Doc. 14.

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In Plaintiff’s first amended complaint, Plaintiff alleges that on May 1, 2007, Plaintiff was

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placed in administrative segregation in PVSP due to an alleged prison escape plan. Id. On June 19,

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2007, Doe Defendant placed Plaintiff’s personal property in storage, and Officer Singleton noted

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Plaintiff’s missing personal property. Id. at 7. On June 19, 2007, Plaintiff submitted an inmate appeal

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to J.C. Smith, supervisor for Pleasant Valley investigative services unit. Id. On July 25, 2007,

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Sergeant J.G. Lopez notified Plaintiff that they completed their investigation and determined the

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officers were responsible for Plaintiff’s missing property and they would be compensating Plaintiff.

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Id. at 8. On September 17, 2007, Plaintiff was transferred to CCI. Id. On October 26, 2007, Sgt.

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Lopez told Plaintiff to stop his family members from complaining about the loss of property. Id. at

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9. On November 18, 2007, Plaintiff mailed a complaint letter to Warden Fernando Gonzales of CCI

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due to the delay of R. Cruz in issuing Plaintiff his property. Id. at 10. On December 6, 2007, Lt. B.

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Sanders told Plaintiff he would be issued his property on the following day. Id. On December 7,

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2007, R. Cruz brought Plaintiff his property, they had a heated exchange, and Plaintiff told

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Defendant Cruz he still had missing property. Id. at 10-11. Defendant Cruz told Plaintiff he could

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not have all his legal property or his personal property that is beyond the property limits, i.e., 114

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Top Ramen, 12-Cup of Soup, 13 bars of soap, 9 bottles of shampoo, and 14 toothpaste. Id. On

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December 28, 2007, Plaintiff submitted an inmate appeal to request his legal property and that his

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personal property be held until he was told the postage cost to send it to his sister. Id. at 13. On

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January 7, 2008, Defendant Cruz responded to Plaintiff’s appeal, advising that Plaintiff that he had

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been afforded over fifty days to acquire the funds to mail his property home, and since Plaintiff did

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not have the funds, his property was destroyed on December 18, 2007. Id. On January 10, 2008,

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Plaintiff submitted his appeal to formal level review. Id. On January 28, 2008, Sgt. Noyce denied

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Plaintiff’s appeal at the first level. Id. at 14. On February 19, 2008, Warden M. Carrasco denied

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Plaintiff’s appeal at the second level. Id. On June 5, 2008, S. Wright denied Plaintiff’s appeal at the
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Director’s third level review, and N. Grannis, Chief of Inmate Appeals signed the denial. Id. at 15.

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Plaintiff alleges emotional distress at loss of personal photographs and a manuscript he

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worked on for three years. Id. at 18. Plaintiff alleges loss of records for his criminal habeas case and

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$1,000 in personal property. Id. Plaintiff was prevented from using the law library to timely file a

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claim with the Victim Compensation Board. Id. at 19. Plaintiff alleges he is not seeking money or

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damages but injunctive relief in the form of return of his personal and legal property and an order

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directing the CDCR to provide inmates with sixty days to mail personal property to family. Id. at 19

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& 21. Plaintiff alleges cruel and unusual punishment. Id. at 20.

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C. Fourteenth Amendment Due Process Deprivation of Property

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The Due Process Clause protects prisoners from being deprived of property without due

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process of law, Wolff v. McDonnell, 418 U.S. 539, 556 (1974), and prisoners have a protected

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interest in their personal property, Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974).

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However, while an authorized, intentional deprivation of property is actionable under the Due

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Process Clause, see Hudson v. Palmer, 468 U.S. 517, 532, n.13 (1984) (citing Logan v. Zimmerman

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Brush Co., 455 U.S. 422, 435-36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985),

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neither negligent nor unauthorized intentional deprivations of property by a state employee

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“constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth

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Amendment if a meaningful postdeprivation remedy for the loss is available,” Hudson, 468 U.S. at

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533. California provides such a remedy. Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (per

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curiam).

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Only an authorized, intentional deprivation of property is actionable under the Due Process

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Clause. Hudson, 468 U.S. at 533. An authorized deprivation is one carried out pursuant to

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established state procedures, regulations, or statutes. See Logan, 455 U.S. at 436; see also Knudson

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v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). Authorized deprivations of property are

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permissible if carried out pursuant to a regulation that is reasonably related to a legitimate

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penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). “An unauthorized intentional

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deprivation of property by a state employee does not constitute a violation of the procedural

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requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful
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post-deprivation remedy for the loss is available.” Hudson, 468 U.S. at 533. Thus, where the state

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provides a meaningful post-deprivation remedy, only authorized, intentional deprivations constitute

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actionable violations of the Due Process Clause. Id.

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In Plaintiff’s response to the order to show cause, Plaintiff states that Cruz illegally and

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maliciously destroyed Plaintiff’s property. Resp. at 12-13, Doc. 19. Plaintiff’s depiction of the

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relevant events, which include the wrongful, retaliatory confiscation of his personal property, does

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not support a claim. The type of behavior described by Plaintiff is clearly not authorized by the state

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and Defendant’s unauthorized, bad-faith behavior does not support a federal due process claim.

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Hudson, 468 U.S. at 533.

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Plaintiff seeks injunctive relief in the form of the return of his property, but he states in his

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complaint that his property has been destroyed. Therefore, the Court cannot provide Plaintiff’s

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requested relief. In the absence of a viable claim based on the deprivation of his property, Plaintiff

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may not seek an injunction mandating the return of the property. 18 U.S.C. § 3626(a)(1)(A);

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Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). Plaintiff also seeks an order directing

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the CDCR to provide inmates with sixty days to mail personal property to family. The Court

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recognizes that prison administrators “should be accorded wide-ranging deference in the adoption

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and execution of policies and practices that in their judgment are needed to preserve internal order

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and discipline and to maintain institutional security.” Whitley v. Albers, 475 U.S. 312, 321–322

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(1986) (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1970). Thus, Plaintiff’s claim for injunctive

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relief is not cognizable.

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Plaintiff fails to state a § 1983 claim for deprivation of his property. Plaintiff alleges an

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unauthorized intentional deprivation of his property by a state employee. This is not a violation of

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the Due Process Clause of the Fourteenth Amendment because California provides a meaningful

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post-deprivation remedy for the loss. Hudson, 468 U.S. at 533; Barnett, 31 F.3d at 816-17.

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D. First Amendment Right of Access to Courts

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Inmates have a fundamental constitutional right of access to the courts. Lewis v . Casey, 518

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U.S. 343, 346 (1996); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011). The right of

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access to the courts is merely the right to bring to court a grievance the inmate wishes to present, and
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is limited to direct criminal appeals, habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354.

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To bring a claim, a prisoner must have suffered an actual injury by being shut out of court.

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Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis, 518 U.S. at 351; Phillips v. Hust, 588

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F.3d 652, 655 (9th Cir. 2009).

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Plaintiff fails to state a claim against any Defendants for First Amendment right to access the

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courts. Plaintiff has not alleged sufficient facts which indicate that Plaintiff suffered an actual injury

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by being shut out of court.

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E. Eighth Amendment Cruel and Unusual Punishment

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The Eighth Amendment prohibits cruel and unusual punishment. “The Constitution does not

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mandate comfortable prisons.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prisoner’s claim

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of inadequate medical care does not rise to the level of an Eighth Amendment violation unless (1)

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“the prison official deprived the prisoner of the ‘minimal civilized measure of life’s necessities,’”

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and (2) “the prison official ‘acted with deliberate indifference in doing so.’” Toguchi v . Chung, 391

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F.3d 1051, 1057 (9th Cir. 2004) (quoting Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002)

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(citation omitted)). The deliberate indifference standard involves an objective and a subjective prong.

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First, the alleged deprivation must be, in objective terms, “sufficiently serious . . . .” Farmer, 511

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U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must

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“know of and disregard an excessive risk to inmate health or safety . . . .” Id. at 837.

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“Deliberate indifference is a high legal standard.” Toguchi, 391 F.3d at 1060. “Under this

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standard, the prison official must not only ‘be aware of the facts from which the inference could be

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drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’”

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Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the

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risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the

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risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)).

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“What is necessary to show sufficient harm for purposes of the Cruel and Unusual

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Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .” Hudson v.

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McMillian, 503 U.S. 1, 8 (1992). “The objective component of an Eighth Amendment claim is . .

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. contextual and responsive to contemporary standards of decency.” Id.
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Plaintiff fails to state a claim against any Defendants for Eighth Amendment cruel and

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unusual punishment. Plaintiff has not alleged sufficient facts which indicate that Plaintiff suffered

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injuries rising to a constitutional violation.

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III. Res Judicata

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A. Legal Standard

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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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The doctrine of res judicata is applicable to section 1983 actions. Clark v. Yosemite Comm’y

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College Dist., 785 F.2d 781, 788 n.9 (9th Cir. 1986) (noting that there is no exception to the rules
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of issue and claim preclusion for federal civil rights actions brought under 42 U.S.C. § 1983). The

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doctrine is applicable whenever there is “(1) an identity of claims, (2) a final judgment on the merits,

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and (3) identity or privity between parties.” Id.

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B. Analysis

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

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the previously decided case that Plaintiff filed on September 14, 2009, Hopper v. McDonald, et al.,

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2:09-cv-02563-KJM-GH, which was dismissed, with prejudice, on September 26, 2011, for failure

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to state a claim.

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1. 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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a. Plaintiff’s Allegations in the Previously Decided Case

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Prior to filing the complaint in the instant case, on September 14, 2009, Hopper v.

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McDonald, et al., 2:09-cv-02563-KJM-GH. In that action, Plaintiff filed a one hundred and thirty-

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one page complaint, including exhibits, alleging denial of his legal and personal property against

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Defendants Mike McDonald, Warden at High Desert State Prison (“HDSP”); Robert Ayers, Warden,

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D.K. Downs, Sergeant Danna, Sission Stewart, R. Walton. See Hopper v. McDonald,

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2:09-cv-02563-KJM-GH, Compl. at 1, Doc. 1. Plaintiff alleges that on May 1, 2007, Plaintiff was

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transferred to administrative segregation at PVSP and his property was placed in storage. Id. at 16.

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On September 17, 2007, Plaintiff was transferred to CCI and property officer Cruz illegally held
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Plaintiff’s personal and legal property. Id. at 17. On November 25, 2008, Plaintiff sent a letter to the

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secretary of CDCR, Matthew L. Cate, regarding his missing legal property. Id. at 17-18. On

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December 16, 2008, Plaintiff received a response from N. Grannis, Chief of Inmate Appeals in

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Sacramento. Id. at 18. On March 3, 2009, Plaintiff was transferred from CCI to HDSP. Id.

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On January 15, 2010, Plaintiff filed a seventy-eight page amended complaint, including

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exhibits, alleging denial of his legal and personal property against Defendants R.K. Wong, Warden

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at CSP Lancaster; D.K. Downs, Associate Warden at CSP Lancaster; and Uriel Gamboa, Daniel

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Romero, Dan Hunter, M. Muniz, and Sgt. Danna, correctional officers at CSP Lancaster; C.A.

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Collins, Appeals Coordinator at CSP Lancaster; N. Grannis, Chief of Inmate Appeals for the CDCR;

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T. Kots, correctional counselor at HDSP; T. Robertson, Appeals Coordinator for HDSP; and

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Matthew Cates, Secretary of the CDCR. See Hopper v. McDonald, 2:09-cv-02563-KJM-GH, Am.

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Compl. at 3-5, Doc. 5. In Plaintiff’s amended complaint, Plaintiff alleges that from January 2007

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through May 1, 2007, Plaintiff was “stone-walled” by the PVSP correctional counselor. Id. at 14. On

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May 1, 2007, Plaintiff was placed in ad-seg and became separated from all of his property. Id.

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(emphasis in original). On September 17, 2007, Plaintiff was transferred from PVSP to CCI, where

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his personal property was illegally detained and ultimately destroyed by corrections officer R. Cruz.

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Id. at 14-15. R. Cruz is not a named defendant because Plaintiff is pursuing that matter

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independently. Id. at 15. From December 2007 through August 2008, Plaintiff waged a difficult and

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endless campaign to reacquire the documents destroyed by C/O R. Cruz. Id. On November 2, 2008,

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Plaintiff sent a letter to N. Grannis, Chief of Inmate Appeals for CCI. Id. at 16. Plaintiff alleges that

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Defendant N. Grannis, Chief of Inmate Appeals, failed to take action while Plaintiff was housed at

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PVSP and CCI. Id. at 25. Plaintiff received notification from the Victim Compensation and

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Government Claims Board with respect to his claim regarding lost or destroyed legal materials that

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the issue would be better addressed through the court system. Id. at 13, 33. Plaintiff alleged that his

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lack of access to his legal property denied him his First Amendment right to access the courts,

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contributing to the dismissals of his federal habeas petitions. Id. at 21-25, 28-29. He alleged that his

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due process and equal protection rights were violated and that he was subjected to cruel and unusual

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punishment. Id. Plaintiff sought money damages. Id. at 30.
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On September 26, 2011, the Court adopted findings and recommendations, granting

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Defendants’ motion to dismiss, for failure to state a claim. Doc. 36. In the findings and

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recommendations, the Court found that Plaintiff’s complaint failed to state a claim as to equal

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protection, cruel and unusual punishment, first amendment denial of access to the courts, due process

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for loss of personal property, and due process for grievance procedure. Doc. 34.

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b. Legal Standard for Res Judicata as to Alternate Legal Theories

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Under the doctrine of res judicata, a final judgment on the merits precludes the parties or their

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privies from relitigating issues that were or could have been raised in that action. Dodd v. Hood

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River County, 59 F.3d 852, 863 (9th Cir. 1995). “Claim preclusion [ res judicata ] refers to the effect

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of a judgment in foreclosing litigation of a matter that never has been litigated, because of a

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determination that it should have been advanced in an earlier suit.” Migra, 465 U.S. at 77 n.1. Claim

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preclusion “bar(s) all grounds for recovery which could have been asserted, whether they were or

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not, in a prior suit between the same parties . . . on the same cause of action.” Ross v. IBEW, 634

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F.2d 453, 457 (9th Cir. 1980); Lester v. NBC, 217 F.2d 399, 400 (9th Cir.1954), cert. denied, 348

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U.S. 954 (1955) (“a judgment’s finality applies to facts which might have been pleaded with

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reference to the same event as well as to those actually pleaded”); Scoggin v. Schrunk, 522 F.2d 436,

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437 (9th Cir. 1975), cert. denied, 423 U.S. 1066 (1976) (res judicata bars “assertion of every legal

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theory . . . that might have been raised” in first action); Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir.

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1980) (“res judicata preclusion extends only to claims that arise out of the same ‘cause of action’

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asserted in the prior action”).

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A § 1983 cause of action may be dismissed as barred by res judicata if a prior court judgment

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constituted a valid judgment on the merits. See Takahashi v. Bd. of Trustees, 783 F.2d 848, 850-51

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(9th Cir. 1986). Asserting a new legal theory for recovery in a subsequent action does not give rise

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to a new cause of action; “[e]ven where there are multiple legal theories upon which recovery might

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be predicated, one injury gives rise to only one claim of relief.” Id. at 851.

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Res judicata bars not only every claim that was raised in the prior court but also bars the

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assertion of every legal theory or ground for recovery that might have been raised in support of the

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granting of the desired relief, and a plaintiff cannot avoid the bar of claim preclusion merely by
Page 10 of 13

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alleging conduct by the defendant not alleged in the prior action, or by pleading a new legal theory.

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See McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986); see, e.g., Stewart v. U.S. Bancorp,

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297 F.3d 953, 957-58 (9th Cir. 2002) (holding that ERISA claim was barred where plaintiff’s prior

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action had been dismissed because his state law claim was preempted by ERISA and he had failed

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to amend the prior complaint to state a valid ERISA claim); Smith v. City of Chicago, 820 F.2d 916,

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920 (7th Cir. 1987) (claim preclusion applies where single core of operative facts forms basis of both

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lawsuits and plaintiff neglected to raise § 1983 claim until years after it occurred and not until

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adverse judgment was rendered on cause of action for employment discrimination); Fleming v.

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Travenol Laboratories, Inc., 707 F.2d 829, 834 (5th Cir. 1983) (claim preclusion applies where

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factual basis for Title VII claim is same as factual basis for § 1983 claim raised earlier; even though

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legal theory is different, same wrong is sought to be vindicated in each instance and plaintiff could

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have amended prior action to include Title VII claim).

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c. Plaintiff’s Claims Arise from the Same Transactional Nucleus of Facts as his Prior Case

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In the instant case, Plaintiff’s claims arise from the same transactional nucleus of facts as his

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prior case of Hopper v. McDonald, et al., 2:09-cv-02563-KJM-GH. In the instant case and the prior

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cases, Plaintiff alleges denial of personal and legal property, related to his placement in

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administrative segregation. See Hopper v. S. Wright, et al., 1:10-cv-00055-GBC, Compl. at 8-9, Doc.

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1; Am. Compl. at 6-11, 13-15, 18-21, Doc. 14; see also Hopper v. McDonald, et al.,

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2:09-cv-02563-KJM-GH, Compl. at 1, 16-18, Doc. 1; Am. Compl. at 3-5, 14-15, 21-25, 28-30, Doc.

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5. Indeed, both cases surround Plaintiff’s appeals to N. Grannis for denial of his legal and personal

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property, and Plaintiff raises the same constitutional claims in both cases. In fact, the Court in

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Hopper v . McDonald noted in its findings Plaintiff had not named R. Cruz in his complaint because

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Plaintiff was pursuing his allegations against R. Cruz “independently.” F&R at 5, Doc. 34.

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Plaintiff’s complaint in the instant case arises from the same transactional nucleus of facts

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as his prior case, i.e.,denial of personal and legal property, related to his placement in administrative

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segregation. Therefore, the claims in the instant case are barred by res judicata.

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//

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2. Final Judgment on the Merits

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On September 26, 2011, the Court adopted findings and recommendations, granting

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Defendants’ motion to dismiss, for failure to state a claim. Hopper v. McDonald, et al.,

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2:09-cv-02563-KJM-GH, Doc. 36.

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The Court concludes that the instant case, Hopper v. S. Wright, et al., 1:10-cv-00055-GBC,

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stems from the claims which were previously litigated in Hopper v. McDonald, et al.,

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2:09-cv-02563- KJM-GH. “Supreme Court precedent confirms that a dismissal for failure to state a

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claim under Rule 12(b)(6) is a ‘judgment on the merits’ to which res judicata applies. Federated

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Dep’t Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981).” Stewart, 297 F.3d at 957.

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3. Privity Between Parties

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The named Defendants in the instant case, S. Wright, facility captain of the CDCR; Fernando

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Gonzales, Warden of CCI; B. Sanders, correctional lieutenant at CCI; J.G. Lopez, correctional

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sergeant at PVSP; Correctional Officer Singleton, property officer at PVSP; R. Cruz, property officer

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at CCI; E. Noyce, correctional sergeant at CCI; and Doe Defendants, are in privity with the named

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Defendants in the prior case, Mike McDonald, Warden at HDSP; Robert Ayers, Warden, Sission

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Stewart, R. Walton, R.K. Wong, Warden at CSP Lancaster; D.K. Downs, Associate Warden at CSP

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Lancaster; and Uriel Gamboa, Daniel Romero, Dan Hunter, M. Muniz, and Sgt. Danna, correctional

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officers at CSP Lancaster; C.A. Collins, Appeals Coordinator at CSP Lancaster; N. Grannis, Chief

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of Inmate Appeals for the CDCR; T. Kots, correctional counselor at HDSP; T. Robertson, Appeals

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Coordinator for HDSP; and Matthew Cates, Secretary of the CDCR as the Defendants in both cases

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are employees of the CDCR. See Nordhorn, 9 F.3d at 1405; see also Sunshine Anthracite Coal Co.,

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310 U.S. at 402-03; Adams v. California Dept. of Health Services, 487 F.3d 684, 691 (9th Cir. 2007).

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1988)).

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IV. Conclusion

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Plaintiff’s first amended complaint fails to state any claims upon which relief may be granted.

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Plaintiff was previously notified of the deficiencies in his claims and granted leave to amend, but he

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was unable to cure the deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); Noll v.

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Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Based on the record in this case, the Court finds
Page 12 of 13

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that further leave to amend is not warranted.

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The Court finds that the claims in the previously decided case of Hopper v. McDonald, et al.,

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2:09-cv-02563-KJM-GH, and the instant case of Hopper v. S. Wright, et al., 1:10-cv-00055-GBC,

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involve the same transactional nucleus of facts against the same Defendants in privity, alleging

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denial of personal and legal property, related to his placement in administrative segregation.

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Accordingly, pursuant to 28 U.S.C. §§ 1915A and 1915(e), the Court HEREBY ORDERS

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that this action be DISMISSED, with prejudice, based on Plaintiff’s failure to state any claims upon

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which relief may be granted under § 1983 and as barred by res judicata.

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IT IS SO ORDERED.

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Dated:
7j8cce

May 18, 2012
UNITED STATES MAGISTRATE JUDGE

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