Simmons v. CDCR et al

Filing 15

ORDER to SHOW CAUSE signed by Chief Judge Ralph R. Beistline on 4/9/2013. Show Cause Response due by 5/10/2013.(Lundstrom, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CHRISTOPHER SIMMONS,
Case No. 1:10-cv-00553-RRB
Plaintiff,
vs.
ORDER TO SHOW CAUSE
JONATHAN AKANNO, et al,
Defendants.

Plaintiff Christopher Simmons is a state prisoner proceeding
pro se and in forma pauperis in this civil rights action pursuant
to 42 U.S.C. § 1983. Simmons filed this action in the Kern County
Superior Court on August 25, 2009, and the California Department of
Corrections and Rehabilitation (“CDCR”) removed it to this Court.1
Currently pending before the Court is the First Amended Complaint,
filed March 5, 2012.2
I.

SCREENING REQUIREMENTS
This Court is required to screen complaints brought by

prisoners seeking relief against a governmental entity or officer
or employee of a governmental entity.3 This Court must dismiss a

1

Docket 1.

2

Docket 13.

3

28 U.S.C. § 1915A(a).

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complaint or portion thereof if the prisoner has raised claims that
are legally “frivolous or malicious,” that “fails to state a claim
on which relief may be granted,” or that “seeks monetary relief
against a defendant who is immune from such relief.”4
In determining whether a complaint states a claim, the Court
looks

to the pleading standard under Federal Rule of Civil

Procedure 8(a). Under Rule 8(a), a complaint must contain “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” 5 “[T]he pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more

than

an

unadorned,

the-defendant-unlawfully-harmed-me

accusation.”6 Failure to state a claim under § 1915A incorporates
the familiar standard applied in Federal Rule of Civil Procedure
12(b)(6), including the rule that complaints filed by pro se
prisoners are to be liberally construed, affording the prisoner the
benefit of any doubt, and dismissal should be granted only where it
appears beyond doubt that the plaintiff can plead no facts in
support of his claim that would entitle him or her to relief.7

4

28 U.S.C. § 1915(e)(2)(B).

5

Fed. R. Civ. P. 8(a)(2).

6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007)).
7

Wilhelm v. Rotham, 680 F.3d 1113, 1121 (9th Cir. 2012).

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Under § 1983, Plaintiff must demonstrate that each defendant
personally participated in the deprivation of his rights.8 This
requires the presentation of factual allegations sufficient to
state a plausible claim for relief. 9 “[A] complaint [that] pleads
facts that are ‘merely consistent with’ a defendant’s liability
. . . ‘stops short of the line between possibility and plausibility
of entitlement to relief.’”10 Further, although a court must accept
as true all factual allegations contained in a complaint, a court
need

not

accept

a

“Threadbare recitals

plaintiff’s
of

legal

conclusions

as

true.11

the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”12
II.

ALLEGATIONS
Simmons is wheelchair bound and incarcerated at the California

Medical Facility (“CMF”). The incidents detailed in the Amended
Complaint occurred while Simmons was being housed at Kern Valley
State Prison (“KVSP”,). Simmons brings suit against Defendants

8

Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002); see
Monell v. Dep’t of Soc. Svcs., 436 U.S. 658, 691–95 (1978)
(rejecting the concept of respondeat superior in the context of
§ 1983, instead requiring individual liability for the violation).
9

Iqbal, 556 U.S. at 678–69; see Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting and applying
Iqbal and Twombly).
10

Id. at 678 (quoting Twombly, 550 U.S. at 557).

11

Id.

12

Id. (quoting Twombly, 550 U.S. at 555).

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CDCR; KVSP; Anthony Hedgpeth, Warden; Associate Warden Robert
Keldgord, Associate Warden; Chief Medical Officer Doe, Jonathan
Akanno, M.D. (Primary Care Physician); Sharon Zamora, Heath Care
Manager;

Capt.

P.

Sanchez;

Sgt. Sandoval; J. Key,

Lt.

M.

Cabrera;

Sgt.

Steelman;

R.N.; Mohammad Ali, Supervising RN;

L. Sauceda, LVN, T. Ellstrom, LVN; Shagoon, LVN; Green Moorehead,
LVN; M. Koonce, LVN; Correctional Officers I. Jaime; D. Campas;
J. Covarrubias; J. Hernandez (“J. Hernandez 1"); J. Hernandez
(“J. Hernandez 2"); D. Sedkezsky; B. Gricewich; Pfieffer; Sanchez;
Thompson; Nunez; and fifty additional Does. Simmons brings a
multitude of claims, including interference with access to the
courts, retaliation for exercising his free speech rights under the
First Amendment, inadequate medical care in violation of the Eighth
Amendment, violation of his due process and equal protection rights
under the Fourteenth Amendment, violation of the Americans With
Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act,
and tortious conduct under the California Civil Code.
Simmons’ Amended Complaint alleges multiple incidents that
occur during the period between July 2007 and March 2009, and
appear to be both related and unrelated. This Court will not
summarize all of the allegations in the first amended complaint
since it entails a variety of apparently unrelated claims that do
not present a cohesive basis for analysis.

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III. PRIOR ACTIONS
Initially, this Court notes that in addition to this action,
Simmons has filed at least two other actions in this Court alleging
violations of his rights while incarcerated at KVSP: Simmons v.
Hedgpeth, 1:07-cv-01058-LJO-SAB (“Simmons I”), filed July 15, 2007;
and Simmons v. Akanno, 1:09-cv-00659-GBC (“Simmons II”), filed
June 17, 2009.13
Simmons I was initially brought as a petition for habeas
relief. The district court dismissed it and on appeal the Ninth
Circuit reversed and directed that it be treated as civil rights
action under § 1983. After reversal by the Ninth Circuit, but prior
to the issuance of the mandate, Simmons filed a motion in Simmons
I to consolidate it with Simmons II and this case. 14 That motion was
denied.15 On February 17, 2012, after Simmons was transferred from
KVSP,16 Simmons filed an Amended Complaint in which he sought relief
under the Eighth Amendment, the Americans with Disabilities Act,
and the Rehabilitation Act of 1973. In that Amended Complaint

13

This Court takes judicial notice of the files in those
two cases. Fed. R. Evid. 201.
14

Simmons I, Docket 20,

15

Id., Docket 25.

16

According to his First Amended Complaint in Simmons II,
Simmons was transferred from KVSP to Pleasant Valley State Prison
on April 8, 2009.
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Simmons includes some of the same defendants sued in this action,
as well as others who are not included in the this action. Its
allegations span the time period October 2005 through February
2008, inclusive. That action remains pending.
After his First and Second Amended Complaints in Simmons II
were dismissed with leave to amend during screening, Simmons filed
his Third Amended Complaint, which is virtually a carbon copy of
the Amended Complaint in this case.17 Prior to screening the Third
Amended Complaint, after determining that Simmons had filed three
or more actions or appeals that had been dismissed as frivolous,
malicious, or for failing to state a claim upon which relief could
be granted,18 the Court revoked Simmons in forma pauperis status,
and ultimately dismissed the case for failure to pay the required
filing fee.19 The Ninth Circuit in turn dismissed Simmons’ appeal
for failing to pay the required filing fee.20
Because this case was removed from the California Superior
Court by CDCR and the filing fee was paid by CDCR, Simmons is not
proceeding in forma pauperis in this case.
//
//

17

Simmons II, Docket 28.

18

28 U.S.C. § 1915(g).

19

Simmons II, Dockets 32, 38.

20

Simmons II, Docket 46.

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IV.

DISCUSSION
The present posture of this case and Simmons I requires this

Court to determine whether this case is duplicative of Simmons I
and, therefore, should be dismissed. “Plaintiffs generally have ‘no
right to maintain two separate actions involving the same subject
matter at the same time in the same court against the same
defendant.’”21 In such case, “[a]fter weighing the equities of the
case, the district court may exercise its discretion to dismiss a
duplicative

later-filed

action,

to

stay

the

action

pending

resolution of the previously filed action, to enjoin the parties
from proceeding with it, or to consolidate both actions.”22
To determine whether a suit is duplicative, we
borrow from the test for claim preclusion.
As the
Supreme Court stated in The Haytian Republic, “the true
test of the sufficiency of a plea of ‘other suit pending’
in another forum [i]s the legal efficacy of the first
suit, when finally disposed of, as ‘the thing adjudged,’
regarding the matters at issue in the second suit.” 154
U.S. 118, 124, 14 S. Ct. 992, 38 L. Ed. 930 (1894); see
also Hartsel Springs Ranch, 296 F.3d at 987 n. 1 (“[I]n
the claim-splitting context, the appropriate inquiry is
whether, assuming that the first suit were already final,
the second suit could be precluded pursuant to claim
preclusion.”); Curtis, 226 F.3d at 139–40 (“[T]he normal
claim preclusion analysis applies and the court must
assess whether the second suit raises issues that should
have been brought in the first.”); Davis v. Sun Oil Co.,
148 F.3d 606, 613 (6th Cir.1998) (per curiam) (referring

21

Adams v. California Dept. of Health Svcs., 487 F.3d 684,
688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 F.2d 66, 70
(7th Cir. 1977) (en banc)).
22

Id. (citations omitted).

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to the doctrine against claim-splitting as “the ‘other
action pending’ facet of the res judicata doctrine”).
Thus, in assessing whether the second action is
duplicative of the first, we examine whether the causes
of action and relief sought, as well as the parties or
privies to the action, are the same. See The Haytian
Republic, 154 U.S. at 124, 14 S. Ct. 992 (“There must be
the same parties, or, at least, such as represent the
same interests; there must be the same rights asserted
and the same relief prayed for; the relief must be
founded upon the same facts, and the . . . essential
basis, of the relief sought must be the same.” (internal
quotation marks omitted)); Curtis, 226 F.3d at 140
(holding that the trial court did not abuse its
discretion in dismissing “Curtis II claims arising out of
the same events as those alleged in Curtis I,” which
claims “would have been heard if plaintiffs had timely
raised them”); Serlin, 3 F.3d at 223 (“[A] suit is
duplicative if the claims, parties, and available relief
do not significantly differ between the two actions.”
(internal quotation marks omitted)).23
The Ninth Circuit then laid down the following “same causes of
action” test:
We examine first whether the causes of action in
Adams's two suits are identical. To ascertain whether
successive causes of action are the same, we use the
transaction test, developed in the context of claim
preclusion. “Whether two events are part of the same
transaction or series depends on whether they are related
to the same set of facts and whether they could
conveniently be tried together.” Western Sys., Inc. v.
Ulloa, 958 F.2d 864, 871 (9th Cir.1992) (citing
Restatement (Second) of Judgments § 24(1) (1982)). In
applying the transaction test, we examine four criteria:
(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

23

Id. at 688–89.

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infringement of the same right; and (4) whether the
two suits arise out of the same transactional
nucleus of facts.
Costantini v. Trans World Airlines, 681 F.2d 1199,
1201–02 (9th Cir.1982). “The last of these criteria is
the most important.” Id. at 1202.24
The claims in Simmons I and this case overlap, some being
identical in that they allege the same operative facts. The claims
raised by Simmons in both lawsuits arise out of the same series of
transactions, involve essentially the same parties, infringement of
the same right. The most significant difference is that the claims
in this action include acts that occurred after the acts alleged in
Simmons I, i.e., between February 2008 and March 2009. More
importantly, however, it does not appear that Simmons could not
have included these claims in Simmons I, either in his Amended
Complaint or in a Supplemental Complaint.25
V.

CONCLUSION/ORDER
Because it appears that there is no reason that Simmons could

not bring the claims raised in this action in Simmons I, this
action is duplicative of Simmons I.

24

Id. at 689.

25

This Court is not unmindful of the fact that Simmons
unsuccessfully sought to consolidate this action with Simmons I.
That effort preceded filing of the Amended Complaint in Simmons I;
therefore, the factual basis underlying Simmons’ consolidation
motion, i.e., the comparison of the action pending in Simmons I and
this action, differed materially from the present factual basis.
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IT IS THEREFORE ORDERED that unless Plaintiff shows good cause
for continuing this action, on or before May 10, 2013, the Court
will dismiss it as duplicative, without prejudice.
IT IS SO ORDERED this 9th day of April, 2013.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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