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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN FREDERICK WHEELER, 12 Plaintiff, 13 vs. 14 Defendants. 16 FINDING AND RECOMMENDATION TO DENY MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS THE ACTION WITH PREJUDICE MAYOR OF BAKERSFIELD CITY, et al., 15 1:11-cv-01832-LJO-JLT ________________________________/ (Docs. 1 & 2) 17 Plaintiff has filed a civil rights action, along with an application to proceed in forma 18 pauperis. This proceeding was referred to this Magistrate Judge in accordance with 28 U.S.C. § 19 636(b)(1) and Local Rule 302. 20 I. PROCEDURAL BACKGROUND 21 On November 2, 2011, Johm Fredrick Wheeler (“Plaintiff”), proceeding pro se, filed this 22 civil rights action, pursuant to 42 U.S.C. § 1983.1 Plaintiff alleges federal constitutional as well 23 as state law claims against the city of Bakersfield, California, and its mayor, for receiving a 24 “Notice of Violation” regarding his parked vehicle found on an unpaved surface, a violation of 25 Bakersfield’s Municipal Code Section 10.32.160. (“BMC 10.32.160") (Doc. 1 at 1.) At time he 26 27 28 1 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. -1- 1 received the notice, Plaintiff’s vehicle was parked on grass, adjacent the garage of his rental 2 property located in Bakersfield, California. (Id. at 9.) Upon review of the complaint, the Court 3 finds that this action is substantively identical to the prior complaint that Plaintiff filed on August 4 22, 2011, Wheeler v. Bakersfield City, et al., 1:11–cv–01392–LJO-JLT, which was dismissed 5 with prejudice for Plaintiff’s failure to state a claim on October 19, 2011. As discussed below, 6 Plaintiff’s complaint should be dismissed as barred under the doctrine of res judicata. 7 II. 8 9 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. § 10 1915(a)(1), the undersigned recommends that the application to proceed in forma pauperis be 11 denied as moot because, as discussed below, the undersigned also recommends that the 12 complaint be dismissed without leave to amend. 13 The determination that a plaintiff may proceed in forma pauperis does not complete the 14 inquiry. The court is also required to screen complaints brought by parties proceeding in forma 15 pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 16 2000) (en banc). Pursuant to section 1915(e)(2), the court shall dismiss a case filed pursuant to 17 the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, 18 the action is “frivolous or malicious,” the complaint fails to state a claim on which relief may be 19 granted, or the action seeks monetary relief against a defendant who is immune from such relief. 20 28 U.S.C. § 1915(e)(2)(A)-(B).2 21 III. 22 23 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 24 25 26 27 28 2 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). -2- 1 frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary 2 relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). If the 3 Court determines the complaint fails to state a claim, leave to amend should be granted to the 4 extent that the deficiencies in the pleading can be cured by amendment. Lopez v. Smith, 203 5 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc). 6 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 7 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 8 what the . . . claim is and the grounds upon which it rests[.]’” Bell Atlantic Corp. v. Twombly, 9 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Nevertheless, a 10 plaintiff’s obligation to provide the grounds of entitlement to relief under Rule 8(a)(2) requires 11 more than “naked assertions,” “labels and conclusions,” or “formulaic recitation[s] of the 12 elements of a cause of action.” Twombly, 550 U.S. at 555-57. The complaint “must contain 13 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 14 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868, 883 (2009) (quoting Twombly, 550 15 U.S. at 570). Vague and conclusory allegations are insufficient to state a claim. See Ivey v. 16 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 17 IV. 18 RES JUDICATA The doctrine of res judicata bars the re-litigation of claims previously decided on their 19 merits. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). Claim 20 preclusion (res judicata ) pertains to “the effect of a judgment in foreclosing litigation of a matter 21 that never has been litigated, because of a determination that it should have been advanced in an 22 earlier suit . . .” Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 553 (9th 23 Cir.2003) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, (1984)); 24 see Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (“Res judicata 25 precludes the litigation of ‘any claims that were raised or could have been raised’ in a previous 26 lawsuit.”). “The elements necessary to establish res judicata are: ‘(1) an identity of claims, (2) a 27 final judgment on the merits, and (3) privity between parties.’” Headwaters, Inc., 399 F.3d at 28 1052 (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 322 F.2d 1064, -3- 1 1077 (9th Cir. 2003)). “[I]f a court is on notice that it has previously decided the issue presented, 2 the court may dismiss the action sua sponte, even though the defense has not been raised,” 3 Arizona v. California, 530 U.S. 392, 416 (2000), provided that the parties have an opportunity to 4 be heard prior to dismissal, Headwaters, Inc., 399 F.3d at 1055. Generally a person who is not a 5 party to an action is not entitled to the benefits of res judicata. However, where “two parties are 6 so closely aligned in interest that one is the virtual representative of the other, a claim by or 7 against one will serve to bar the same claim by or against the other.” Nordhorn v. Ladish Co., 8 Inc., 9 F.3d 1402, 1405 (9th Cir. 1993). 9 V. ANALYSIS 10 A. 11 “Whether two events are part of the same transaction or series depends on whether they Identity of claims 12 are related to the same set of facts and whether they could conveniently be tried together.” 13 Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992). In applying the transaction test, 14 the Court examines the following criteria:(1) whether rights or interests established in the prior 15 judgment would be destroyed or impaired by prosecution of the second action; (2) whether 16 substantially the same evidence is presented in the two actions; (3) whether the two suits involve 17 infringement of the same right; and (4) whether the two suits arise out of the same transactional 18 nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201–02 (9th Cir. 1982). 19 “The last of these criteria is the most important .” Id. at 1202. 20 On November 2, 2011, Plaintiff filed the complaint in the instant case, alleging as 21 follows. On August 16, 2011, Plaintiff received a “Notice of Violation” from a code 22 enforcement officer for parking his vehicle on an unpaved surface, a violation of Bakersfield’s 23 Municipal Code Section 10.32.160. (“BMC 10.32.160") (Doc. 1 at 8-9.) At the time he 24 received the notice, Plaintiff’s vehicle was parked on grass, adjacent the garage of his residential 25 rental property located in Bakersfield, California. (Doc. 1 at 9.) BMC 10.32.160 provides in 26 relevant part: 27 28 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. -4- 1 (Doc. 1 at 10.) 2 In addition to the initial notice, Plaintiff states that he received a second seven day notice 3 to abate the violation which indicated that if the violation were not resolved, the city could assess 4 Plaintiff a total of $1,135 in fees. (Doc. 1 at 10.) Plaintiff also alleges that in order to obtain the 5 vehicle’s license number, the enforcement officer entered Plaintiff’s property without legal 6 authority to do so. (Id. at 6.) Plaintiff asserts that Defendant’s ordinance deprives him of his 7 property in violation of federal due process and abridges the privileges or immunities afforded 8 him as a citizen of the United States. (Id. at 6.) Additionally, Plaintiff contends the city’s code 9 results in both a public and private nuisance which interferes with the reasonable and 10 comfortable use of his property. (Id. at 2.) Plaintiff seeks both injunctive relief and monetary 11 damages. (Id. at 11.) 12 Prior to filing the complaint in the instant case, on August 22, 2011, Plaintiff filed 13 Wheeler v. Bakersfield City, et al., 1:11–cv–01392–LJO-JLT. Asserting nearly identical facts in 14 this previous matter, Plaintiff alleged that he had received the city’s notice on August 16, 2011 15 for parking his vehicle on his property off pavement and that the enforcement officer unlawfully 16 entered his property. Wheeler, 1:11–cv–01392–LJO-JLT, Doc. 1 at 1, 4-5. Just as in the instant 17 suit, Plaintiff alleged that the City’s ordinance deprives him of his property in violation of federal 18 due process. Id. at 1. In addition, in the previous action, though not in the instant matter, 19 Plaintiff claimed that the enforcement officer’s entry to his property violated the Fourth 20 Amendment’s prohibition against unreasonable searches and seizure. Id. at 4. As he does here, 21 Plaintiff sought both injunctive relief and monetary damages. 22 It is clear that the two suits involve “infringement of the same right” and that they arise 23 out of the “same transactional nucleus of facts.” and that Plaintiff presents identical claims in 24 both suits. Costantini, supra, 681 F.2d at 1201–02. 25 B. 26 On September 29, 2011, the Court issued findings and recommendations regarding Final judgement on the merits 27 Wheeler, 1:11–cv–01392–LJO-JLT, recommending that the action be dismissed for Plaintiff’s 28 failure to state a claim. Wheeler, 1:11–cv–01392–LJO-JLT, Doc. 4. On October 19, 2011, after -5- 1 reviewing the matter, including Plaintiff’s objections, the District Judge adopted the Findings and 2 Recommendations, dismissing the action with prejudice for failure to state a claim. Wheeler, 3 1:11–cv–01392–LJO-JLT, Doc. 7. 4 The Court concludes that the instant case, 1:11–cv–01832 stems from the claims which 5 were previously litigated against the Defendants in 1:11–cv–01392. “Supreme Court precedent 6 confirms that a dismissal for failure to state a claim under Rule 12(b)(6) is a “judgment on the 7 merits” to which res judicata applies. Federated Dep't Stores v. Moitie, 452 U.S. 394, 399 n. 3, 8 (1981); Stewart v. U.S. Bancorp, 297 F.3d 953 (9th Cir. 2002). Based on this determination, the 9 second criteria for the res judicata analysis is satisfied. 10 C. 11 The third criteria for res judicata is also satisfied. Both cases involve the same Plaintiff. 12 Additionally, in the first action, Plaintiff named defendants as “Bakersfield City et al,” however, 13 in the instant matter, Plaintiff names both the City and its Mayor. Plaintiff, however, cannot 14 escape the doctrine of res judicata with the mere addition of the Mayor to this action.. City 15 officials, like the Mayor, are in privity with the City and the third criteria is therefore satisfied. 16 Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993) (stating that “when two parties 17 are so closely aligned in interest that one is the virtual representative of the other, a claim by or 18 against one will serve to bar the same claim by or against the other”); Adams v. California Dept. 19 of Health Services, 487 F.3d 684, 691 (9th Cir. 2007) (finding that new defendants, employees of 20 the state department of health services, were in privity with the department, a named defendant in 21 the previous action); accord Duffy v. City of Long Beach, 201 Cal. App. 3d 1352, 1358 (1988) 22 (holding that city employees were protected by res judicata after a final judgment had been issued 23 in favor of the city). 24 V. 25 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., 26 1:11–cv–01392–LJO-JLT, involve the same transactional nucleus of facts and the same 27 defendants as the claims in this instant action of Wheeler v. Mayor of Bakersfield City, et al., 28 1:11–cv–01832–LJO-JLT. -6- 1 In accordance with the above, it is HEREBY RECOMMENDED that: 2 1. Plaintiff’s application to proceed in forma pauperis (Doc. 2) be denied; and 3 2. This action be DISMISSED WITH PREJUDICE as barred by res judicata and 4 duplicative of Wheeler v. Bakersfield City, et al., 1:11–cv–01392–LJO-JLT; and 5 3. This case be closed. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B). Within 14 days 8 after being served with these findings and recommendations, Plaintiff may file written objections 9 with the Court. If Plaintiff elects to file written objections, he should caption the document as 10 “Objections to Magistrate Judge's Findings and Recommendations.” Plaintiff is advised that 11 failure to file objections within the specified time may waive the right to appeal the District 12 Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: December 8, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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