Jayne v. City of Anderson et al

Filing 9

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/24/2011 ORDERING that Plaintiff's 2 request for leave to proceed in forma pauperis is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's 1 complaint is DISMISSED with leave to amend. Plaintiff must file an amended complaint within 30 days of the filed date of this order.(Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIKE JAYNE,

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Plaintiff,

No. CIV S-11-1465 LKK GGH P

vs.
CITY OF ANDERSON, et al.,

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ORDER

Defendants.

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/

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Plaintiff is a state prisoner proceeding pro se. He seeks relief pursuant to 42

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U.S.C. § 1983 and has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma

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pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28
U.S.C. § 1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28

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U.S.C. §§ 1914(a), 1915(b)(1). Plaintiff has been without funds for six months and is currently

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without funds. Accordingly, the court will not assess an initial partial filing fee. 28 U.S.C.

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§ 1915(b)(1). Plaintiff is obligated to make monthly payments of twenty percent of the preceding

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month’s income credited to plaintiff’s prison trust account. These payments shall be collected
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and forwarded by the appropriate agency to the Clerk of the Court each time the amount in

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plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2).

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The court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

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§ 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised

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claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. 28

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U.S.C. § 1915A(b)(1),(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28

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(9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007).

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“The pleading must contain something more...than...a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal

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Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient

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

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v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct.

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1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Id.
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In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740, 96 S.Ct. 1848 (1976), construe the pleading in the light most favorable to the plaintiff,

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and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct.

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1843 (1969).

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Plaintiff’s complaint, filed with the court on March 31, 2011, alleges that,

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beginning in March 2007, defendants conspired to frame him for illegal possession of firearms

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and other charges, resulting in his conviction and imprisonment on the basis of these false

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charges. The court’s own records reveal that on November 26, 2007, plaintiff filed a complaint

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containing similar allegations against defendants Anderson Police Department, Abney, Blunk,

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and Collier (No. Civ. S-07-2522 LKK KJN, hereinafter “Jayne I”)1, along with other defendants.

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(See Jayne I, Doc. #135 at 2 (summarizing plaintiff’s allegations on summary judgment)). On

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July 15, 2010, the magistrate judge assigned to that case issued findings and a recommendation

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that defendants’ motion for summary judgment be granted.2 On August 31, 2010, the district

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judge adopted the findings and recommendations and entered judgment in favor of defendants.

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Plaintiff appealed the judgment, and that appeal is now pending. (Id., Doc. #140; see also Doc.

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#7 at 3 in the instant case). From the filing of the complaint in November 2007 to entry of

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judgment in August 2010, Jayne I spanned nearly three years and required substantial court

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resources to resolve on the merits. The undersigned will now determine whether there is

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anything left to litigate in the instant case that is not precluded by the doctrine of res judicata.

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

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parties or their privies from relitigating issues that were or could have been raised in that action.

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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Defendants Anderson Police Department, Collier, and Blunk filed the motion for
summary judgment, all other defendants having been dismissed, either voluntarily by plaintiff or
by court order. (Jayne I, Doc. #135 at 1, fn.1.)
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Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir.1995). The Supreme Court has noted

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that “claim preclusion” and “issue preclusion” are referred to collectively as “res judicata.”

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Taylor v. Sturgell, 553 U.S. 880, 128 S.Ct. 2161, 2171 (2008).

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The doctrine of res judicata is applicable to § 1983 actions. Clark v. Yosemite

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Community College Dist., 785 F.2d 781, 788 n. 9 (9th Cir. 1986) (noting that there is no

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exception to the rules of issue and claim preclusion for federal civil rights actions brought under

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42 U.S.C. § 1983), citing Migra v. Warren City School Dist. Bd. of Education, 465 U.S. 75, 84,

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104 S.Ct. 892, 898 (1984); Allen v. McCurry, 449 U.S. 90, 97-98, 101 S.Ct. 411 (1980); Piatt v.

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MacDougall, 773 F.2d 1032, 1034 (9th Cir. 1985) (en banc). Courts have held that habeas

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proceedings can have preclusive effect in subsequent civil rights actions. See Hawkins v. Risley,

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984 F.2d 321, 323 (9th Cir. 1993) (per curiam) (holding that a federal habeas decision may have

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preclusive effect in a subsequent § 1983 action); Silverton v. Dep't of Treasury, 644 F.2d 1341,

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1347 (9th Cir. 1981) (ruling that state habeas proceedings can have issue or claim preclusive

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effect in subsequent § 1983 actions).

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Under the doctrine of claim preclusion, a final judgment forecloses “successive

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litigation of the very same claim, whether or not relitigation of the claim raises the same issues as

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the earlier suit.” New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808 (2001). Issue

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preclusion, in contrast, bars “successive litigation of an issue of fact or law actually litigated and

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resolved in a valid court determination essential to the prior judgment,” even if the issue recurs in

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the context of a different claim. Id., at 748-749, 532 U.S. 742, 121 S.Ct. 1808.

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A plaintiff cannot avoid the bar of claim preclusion merely by alleging conduct

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not alleged in the prior action, by pleading a new legal theory, or by seeking a different remedy

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for violation of the same primary right. McClain v. Apodaca, 793 F.2d 1031, 1033-34 (9th

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Cir.1986). Cf. Hiser v. Franklin, 94 F.3d, 1287, 1291(1996) (the prisoner’s claims were not

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precluded because they did not accrue until two years after the settlement agreement that

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concluded a prior class action). Claim preclusion applies where a § 1983 action implicates the
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same “primary rights” as those raised in a prior proceeding. Clark, 785 F.2d at 786. The focus is

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on the legal harm for which the plaintiff seeks redress in his second action. McClain, 793 F.2d at

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1034.

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By “preclud[ing] parties from contesting matters that they have had a full and fair

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opportunity to litigate,” these two doctrines protect against “the expense and vexation attending

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multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by

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minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147,

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153-154, 99 S.Ct. 970 (1979).

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The Ninth Circuit has identified four factors that should be considered by a court
in determining whether successive lawsuits involve the same cause of action:
(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;

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(3) whether the two suits involve infringement of the same right;
and

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(4) whether the two suits arise out of the same transactional
nucleus of facts.

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See C.D. Anderson & Co., 832 F.2d 1097, 1100 (9th Cir.1987); Costantini v. Trans World

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Airlines, 681 F.2d 1199, 1201-02 (9th Cir.1982); Harris v. Jacobs, 621 F.2d 341, 343 (9th

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Cir.1980) (per curiam). The fourth of these factors has been cited by some courts as the most

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important. See Headwaters, Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005),

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citing Costantini, 681 F.2d at 1201-02; see also, C.D. Anderson & Co., 832 F.2d at 1100.

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However, “[n]o single criterion can decide every res judicata question; identity of causes of

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action ‘cannot be determined precisely by mechanistic application of a simple test.’ ” Costantini,

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681 F.2d at 1202 n. 7 (quoting Abramson v. Univ. of Haw., 594 F.2d 202, 206 (9th Cir. 1979)).

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“‘The crucial element underlying all of the standards is the factual predicate of the several
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claims asserted. For it is the facts surrounding the transaction or occurrence which operate to

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constitute the cause of action.’ ” Harris, 621 F.2d at 343 (quoting Expert Elec., Inc. v. Levine,

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554 F.2d 1227, 1234 (2d Cir. 1977)).

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Here, plaintiff’s allegations against defendants Anderson Police Department,

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Abney, Blunk, and Collier arise from the same transactional nucleus of facts as in Jayne I, where

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plaintiff alleged that in March 2007 these same defendants violated his Fourth Amendment rights

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as follows:

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The Anderson Police then maliciously contacted Parole Agent
Randy Abney knowingly bypassing [plaintiff’s] assigned Parole
Agent so Randy Abney could go after the plaintiff. Anderson
Police officers Blunk, Collier and Dispatch coerced [complaining
witness] Miss Kessler into saying the plaintiff held her against her
will for 6 hours. Then these officers illegally sent [an] exigent
circumstance request/demand to the plaintiff’s cell phone provider
saying he was wanted for kidnapping and to provide his cell
records and G.P.S. location without a warrant or real cause.

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(Jayne I, Doc. #135 at 2.) Plaintiff could not prevail on his claims against these same defendants

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in the instant action without destroying or impairing the judgment in favor of defendants in Jayne

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I. Thus, the undersigned will recommend that plaintiff’s claims against these defendants be

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dismissed under the doctrine of res judicata.

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The remaining numerous other defendants in the instant case were not named as

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defendants in Jayne I, but figured in plaintiff’s factual allegations in that case and were involved

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in the same transactional nucleus of facts. A sub doctrine of collateral estoppel goes under the

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name of “non-mutual defensive collateral estoppel.” This doctrine applies in favor of a

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defendant in a second action, not named in the first, but who is so closely connected to the events

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at issue that it would be unfair to allow plaintiff to have a second bite at the apple. This applies

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whether or not the second defendant was in “privity” with the first. See Park Lane Hosiery v.

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Shore, 439 U.S. 322, 328, 99 S.Ct. 645, 650 (1979): “Permitting repeated litigation of the same

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issue as long as the supply of unrelated defendants holds out reflects either the aura of the

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gaming table or ‘a lack of discipline and of disinterestedness on the part of the lower courts,
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hardly a worthy or wise basis for fashioning rules of procedure.’” A good example of the

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application of non-mutual defensive collateral estoppel appears in the case of Masson v. New

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Yorker Magazine, 85 F.3d 1394, 1400 (9th Cir 1996).

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The magistrate judge’s findings on summary judgment in Jayne I recount

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plaintiff’s allegations concerning instant defendants Kirvin (Jayne I, Doc. #135 at 25) and Van

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Dyke (id. at 9-10), law enforcement officers allegedly involved in the events leading to plaintiff’s

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arrest and conviction on false charges. In Jayne I, plaintiff also made numerous allegations

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concerning instant defendant Kessler, a complaining witness allegedly involved in the conspiracy

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to frame plaintiff. (Id. at 5-14.) Instant defendant FBI agent Mike Skeen also allegedly played a

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role in the events leading to plaintiff’s arrest and conviction in Jayne I. (Id. at 13, fn. 28.) Instant

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defendant City of Anderson, plaintiff alleges in the instant action, has “direct authority of being

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responsible for the Anderson Police Department,” and thus could have been named as a

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defendant in Jayne I in connection with the APD’s allegedly wrongful acts. Indeed, plaintiff

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might have named any of these defendants in Jayne I, given their connection to the wrongs he

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allegedly suffered and which formed the factual basis of his complaint.3 That case having been

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resolved, plaintiff does not get “another bite at the apple” as to various players in the events of

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March 2007 whom he did not choose to name as defendants in Jayne I. The court will

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recommend that plaintiff’s claims against the remaining defendants also be dismissed under the

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doctrine of res judicata.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action.

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This is not to say that each of these necessarily would have been a proper defendant in
Jayne I. Defendant Kessler, for example, is alleged to be a private citizen and not a state actor as
required for suit under § 1983. However, whether or not these were proper defendants in
connection with the alleged events could have been sorted out in Jayne I, as with other named
defendants in that case.
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The fee shall be collected and paid in accordance with this court’s order to the Director of the

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California Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed with leave to amend. However, in amending,

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plaintiff should be guided by this order in that persons/entities sued in the previous action should

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not be named as defendants. Nor should plaintiff allege against defendants newly named in this

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action any claims that were raised in the pervious action, or whose factual allegations were

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directly related to claims in that action.

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Plaintiff must file an amended complaint within 30 days of the filed date of this
order. The amended complaint shall be legibly presented. Failure to file an amended complaint

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may result in the entire action being dismissed.

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DATED: August 24, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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