Wheeler v. Mayor of Bakersfield City

Filing 4

FINDINGS and RECOMMENDATION TO DENY 2 MOTION to PROCEED IN FORMA PAUPERIS and DISMISS ACTION WITH PREJUDICE signed by Magistrate Judge Jennifer L. Thurston on 12/8/2011. Objections to F&R due by 12/22/2011. (Leon-Guerrero, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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JOHN FREDERICK WHEELER,

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Plaintiff,

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vs.

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Defendants.

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FINDING AND RECOMMENDATION TO
DENY MOTION TO PROCEED IN FORMA
PAUPERIS AND DISMISS THE ACTION
WITH PREJUDICE

MAYOR OF BAKERSFIELD CITY, et al.,

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1:11-cv-01832-LJO-JLT

________________________________/

(Docs. 1 & 2)

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Plaintiff has filed a civil rights action, along with an application to proceed in forma

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pauperis. This proceeding was referred to this Magistrate Judge in accordance with 28 U.S.C. §

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636(b)(1) and Local Rule 302.

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I.

PROCEDURAL BACKGROUND

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On November 2, 2011, Johm Fredrick Wheeler (“Plaintiff”), proceeding pro se, filed this

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civil rights action, pursuant to 42 U.S.C. § 1983.1 Plaintiff alleges federal constitutional as well

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as state law claims against the city of Bakersfield, California, and its mayor, for receiving a

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“Notice of Violation” regarding his parked vehicle found on an unpaved surface, a violation of

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Bakersfield’s Municipal Code Section 10.32.160. (“BMC 10.32.160") (Doc. 1 at 1.) At time he

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Though Plaintiff does not cite to 42 U.S.C. § 1983 in his current complaint, the nature of Plaintiff’s
allegations including his claim that his civil rights have been violated (Doc. 1 at 10), reflect a claim best
characterized as an action brought under the statute.

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received the notice, Plaintiff’s vehicle was parked on grass, adjacent the garage of his rental

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property located in Bakersfield, California. (Id. at 9.) Upon review of the complaint, the Court

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finds that this action is substantively identical to the prior complaint that Plaintiff filed on August

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22, 2011, Wheeler v. Bakersfield City, et al., 1:11–cv–01392–LJO-JLT, which was dismissed

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with prejudice for Plaintiff’s failure to state a claim on October 19, 2011. As discussed below,

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Plaintiff’s complaint should be dismissed as barred under the doctrine of res judicata.

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II.

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IN FORMA PAUPERIS
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

Although Plaintiff’s application and declaration make the showing required by 28 U.S.C. §

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1915(a)(1), the undersigned recommends that the application to proceed in forma pauperis be

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denied as moot because, as discussed below, the undersigned also recommends that the

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complaint be dismissed without leave to amend.

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The determination that a plaintiff may proceed in forma pauperis does not complete the

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inquiry. The court is also required to screen complaints brought by parties proceeding in forma

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pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir.

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2000) (en banc). Pursuant to section 1915(e)(2), the court shall dismiss a case filed pursuant to

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the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue,

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the action is “frivolous or malicious,” the complaint fails to state a claim on which relief may be

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granted, or the action seeks monetary relief against a defendant who is immune from such relief.

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28 U.S.C. § 1915(e)(2)(A)-(B).2

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III.

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SCREENING REQUIREMENT
The Court is required to review a case filed in forma pauperis. See 28 U.S.C. §

1915(e)(2). The Court must review the complaint and dismiss any portion thereof that is

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Plaintiff has frequently filed non-meritorious lawsuits in this district. See e.g., W heeler v. Bakersfield
City, et al., No. 11-cv-1392 LJO JLT (E.D. Cal.); W heeler v. United States, No. 11-cv-1045 LJO JLT (E.D. Cal.);
W heeler v. American Tobacco Co, Inc., No. 10-cv-0851 OW W JLT (E.D. Cal.); W heeler v. Payless Towing, No.
09-cv-1829 LJO SMS (E.D. Cal.); W heeler v. Bank of America, No. 11-cv-01270 LJO JLT (E.D. Cal.). The Court
has warned Plaintiff–and does so again here–that repeated filing of frivolous cases lacking in merit may result in the
Court ordering a plaintiff to show cause why he should not be declared a vexatious litigant and pre-filing restrictions
imposed. See De Long v. Hennessey, 912 F.2d 1144 (9th Cir. 1990).

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frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary

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relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). If the

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Court determines the complaint fails to state a claim, leave to amend should be granted to the

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extent that the deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203

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F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

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“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the

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claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a

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plaintiff’s obligation to provide the grounds of entitlement to relief under Rule 8(a)(2) requires

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more than “naked assertions,” “labels and conclusions,” or “formulaic recitation[s] of the

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elements of a cause of action.” Twombly, 550 U.S. at 555-57. The complaint “must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550

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U.S. at 570). Vague and conclusory allegations are insufficient to state a claim. See Ivey v.

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Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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IV.

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RES JUDICATA
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). Claim

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preclusion (res judicata ) pertains to “the effect of a judgment in foreclosing litigation of a matter

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that never has been litigated, because of a determination that it should have been advanced in an

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earlier suit . . .” Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th

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Cir.2003) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, (1984));

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see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (“Res judicata

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precludes the litigation of ‘any claims that were raised or could have been raised’ in a previous

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lawsuit.”). “The elements necessary to establish res judicata are: ‘(1) an identity of claims, (2) a

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final judgment on the merits, and (3) privity between parties.’” Headwaters, Inc., 399 F.3d at

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1052 (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.2d 1064,
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1077 (9th Cir. 2003)). “[I]f a court is on notice that it has previously decided the issue presented,

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the court may dismiss the action sua sponte, even though the defense has not been raised,”

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Arizona v. California, 530 U.S. 392, 416 (2000), provided that the parties have an opportunity to

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be heard prior to dismissal, Headwaters, Inc., 399 F.3d at 1055. Generally a person who is not a

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party to an action is not entitled to the benefits of res judicata. However, where “two parties are

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so closely aligned in interest that one is the virtual representative of the other, a claim by or

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against one will serve to bar the same claim by or against the other.” Nordhorn v. Ladish Co.,

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Inc., 9 F.3d 1402, 1405 (9th Cir. 1993).

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V.

ANALYSIS

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A.

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

Identity of claims

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

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

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the Court examines the following criteria:(1) whether rights or interests established in the prior

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judgment would be destroyed or impaired by prosecution of the second action; (2) whether

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substantially the same evidence is presented in the two actions; (3) whether the two suits involve

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infringement of the same right; and (4) whether the two suits arise out of the same transactional

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nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir. 1982).

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“The last of these criteria is the most important .” Id. at 1202.

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On November 2, 2011, Plaintiff filed the complaint in the instant case, alleging as

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follows. On August 16, 2011, Plaintiff received a “Notice of Violation” from a code

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enforcement officer for parking his vehicle on an unpaved surface, a violation of Bakersfield’s

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Municipal Code Section 10.32.160. (“BMC 10.32.160") (Doc. 1 at 8-9.) At the time he

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received the notice, Plaintiff’s vehicle was parked on grass, adjacent the garage of his residential

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rental property located in Bakersfield, California. (Doc. 1 at 9.) BMC 10.32.160 provides in

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relevant part:

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No person shall park any motor vehicle on any unpaved area in any front yard, any
rear yard, which rear yard is open [sic] to public view from any public right of
way, any side yard, or on any other unpaved public or private property.
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(Doc. 1 at 10.)

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In addition to the initial notice, Plaintiff states that he received a second seven day notice

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to abate the violation which indicated that if the violation were not resolved, the city could assess

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Plaintiff a total of $1,135 in fees. (Doc. 1 at 10.) Plaintiff also alleges that in order to obtain the

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vehicle’s license number, the enforcement officer entered Plaintiff’s property without legal

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authority to do so. (Id. at 6.) Plaintiff asserts that Defendant’s ordinance deprives him of his

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property in violation of federal due process and abridges the privileges or immunities afforded

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him as a citizen of the United States. (Id. at 6.) Additionally, Plaintiff contends the city’s code

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results in both a public and private nuisance which interferes with the reasonable and

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comfortable use of his property. (Id. at 2.) Plaintiff seeks both injunctive relief and monetary

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damages. (Id. at 11.)

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Prior to filing the complaint in the instant case, on August 22, 2011, Plaintiff filed

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Wheeler v. Bakersfield City, et al., 1:11–cv–01392–LJO-JLT. Asserting nearly identical facts in

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this previous matter, Plaintiff alleged that he had received the city’s notice on August 16, 2011

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for parking his vehicle on his property off pavement and that the enforcement officer unlawfully

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entered his property. Wheeler, 1:11–cv–01392–LJO-JLT, Doc. 1 at 1, 4-5. Just as in the instant

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suit, Plaintiff alleged that the City’s ordinance deprives him of his property in violation of federal

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due process. Id. at 1. In addition, in the previous action, though not in the instant matter,

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Plaintiff claimed that the enforcement officer’s entry to his property violated the Fourth

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Amendment’s prohibition against unreasonable searches and seizure. Id. at 4. As he does here,

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Plaintiff sought both injunctive relief and monetary damages.

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It is clear that the two suits involve “infringement of the same right” and that they arise

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out of the “same transactional nucleus of facts.” and that Plaintiff presents identical claims in

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both suits. Costantini, supra, 681 F.2d at 1201–02.

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B.

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On September 29, 2011, the Court issued findings and recommendations regarding

Final judgement on the merits

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Wheeler, 1:11–cv–01392–LJO-JLT, recommending that the action be dismissed for Plaintiff’s

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failure to state a claim. Wheeler, 1:11–cv–01392–LJO-JLT, Doc. 4. On October 19, 2011, after
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reviewing the matter, including Plaintiff’s objections, the District Judge adopted the Findings and

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Recommendations, dismissing the action with prejudice for failure to state a claim. Wheeler,

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1:11–cv–01392–LJO-JLT, Doc. 7.

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The Court concludes that the instant case, 1:11–cv–01832 stems from the claims which

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were previously litigated against the Defendants in 1:11–cv–01392. “Supreme Court precedent

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confirms that a dismissal for failure to state a claim under Rule 12(b)(6) is a “judgment on the

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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). Based on this determination, the

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second criteria for the res judicata analysis is satisfied.

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C.

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The third criteria for res judicata is also satisfied. Both cases involve the same Plaintiff.

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Additionally, in the first action, Plaintiff named defendants as “Bakersfield City et al,” however,

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in the instant matter, Plaintiff names both the City and its Mayor. Plaintiff, however, cannot

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escape the doctrine of res judicata with the mere addition of the Mayor to this action.. City

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officials, like the Mayor, are in privity with the City and the third criteria is therefore satisfied.

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Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993) (stating that “when two parties

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are so closely aligned in interest that one is the virtual representative of the other, a claim by or

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against one will serve to bar the same claim by or against the other”); Adams v. California Dept.

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of Health Services, 487 F.3d 684, 691 (9th Cir. 2007) (finding that new defendants, employees of

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the state department of health services, were in privity with the department, a named defendant in

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the previous action); accord Duffy v. City of Long Beach, 201 Cal. App. 3d 1352, 1358 (1988)

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(holding that city employees were protected by res judicata after a final judgment had been issued

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in favor of the city).

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V.

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Same parties or privity between parties

CONCLUSION AND RECOMMENDATION
The Court finds that the claims in the prior case of Wheeler v. Bakersfield City, et al.,

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1:11–cv–01392–LJO-JLT, involve the same transactional nucleus of facts and the same

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defendants as the claims in this instant action of Wheeler v. Mayor of Bakersfield City, et al.,

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1:11–cv–01832–LJO-JLT.
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In accordance with the above, it is HEREBY RECOMMENDED that:

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Plaintiff’s application to proceed in forma pauperis (Doc. 2) be denied; and

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2.

This action be DISMISSED WITH PREJUDICE as barred by res judicata and

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duplicative of Wheeler v. Bakersfield City, et al., 1:11–cv–01392–LJO-JLT; and

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3.

This case be closed.

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These findings and recommendations are 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)(1)(B). Within 14 days

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after being served with these findings and recommendations, Plaintiff may file written objections

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with the Court. If Plaintiff elects to file written objections, he should caption the document as

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“Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated: December 8, 2011
9j7khi

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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