Suarez v. Cate, et. al.

Filing 98

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/2/16 recommending that defendants' motion for judgment on the pleadings (ECF No. 88 ) be granted and that the Clerk be directed to enterjudgment accordingly and close this case. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAHER SUAREZ,

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Plaintiff,

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No. 2:12-cv-2048-KJM-EFB P

v.

FINDINGS AND RECOMMENDATIONS

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Defendants Hubbard, Gower, Davey, Marquez, Harrison, St. Andre, Garcia,

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Harrison, Kokkonen, Tamplen, Williams, White, Furtado, and Kernan (hereafter ‘defendants’)

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move for judgment on the pleadings. ECF No. 88. For the reasons stated below, the motion

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should be granted.

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I.

Procedural Background
Plaintiff alleges several causes of action against the defendants. First, he alleged that in

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2009 they validated him as a gang member and placed him in the Secure Housing Unit (“SHU”)

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without due process, thereby violating his Fourteenth Amendment rights. ECF No. 1 at 15.

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Second, plaintiff alleged that defendants violated his “state created liberty interest” by placing

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him in both the administrative segregation unit (“ASU”) and the SHU. Id. at 15-16. Third,

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plaintiff claimed that his indefinite retention in the SHU violated the Due Process Clause of the

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California Constitution. Id. at 16. Fourth, he alleged that defendants violated his rights under the

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Fourteenth Amendment by refusing to combine two pieces of evidence used in his gang

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validation into a single source, thereby denying him equal protection of the law. Id. at 17. Fifth,

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he alleged that his First Amendment rights were violated by defendants’ policies which punished

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his associations with other prisoners which were not in furtherance of gang activity and which did

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not violate rules, regulations, or the law. Id. Sixth, he claimed that those defendants who held

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supervisory positions failed to properly train or supervise their subordinates even as they had

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knowledge that those subordinates were violating plaintiff’s rights. Id. at 17-18. Seventh, he

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alleged that defendants violated his equal protection rights by treating him like an inmate who had

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committed a disciplinary infraction without first charging him with any disciplinary offense. Id.

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at 18. In conjunction with this claim, plaintiff alleged that defendants denied him the privileges

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and property allowed to general population inmates. Id. Eighth, he claimed that defendants’

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decision to treat him like an inmate who had committed a disciplinary infraction and restricting

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his privileges and property on that basis also violated his due process rights under the Fourteenth

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Amendment. Id. at 18-19.

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On July 12, 2013, defendants filed their first motion to dismiss. ECF No. 22. Plaintiff’s

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California due process claim (Claim Three) was dismissed due to his failure to file a claim with

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California Victim Compensation and Government Claims Board. ECF No. 43 at 18; ECF No. 46.

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Plaintiff’s First Amendment freedom of association claim (Claim Five) and failure to train and

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supervise subordinates claim (Claim Six) were also dismissed. Id.

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A second motion to dismiss was filed on behalf of defendant Kernan.1 ECF No. 58. It was

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granted as to plaintiff’s claims for injunctive relief intended to cure the alleged violations of his

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Fourteenth Amendment due process rights. ECF No. 73; ECF No. 83.

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The motion was originally filed on behalf of defendant Beard. ECF No. 58. Kernan has
been substituted in place of Beard. ECF No. 83.
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The instant motion seeks judgment on the pleadings.
II.

Legal Standard
“After the pleadings are closed—but early enough not to delay trial—a party may move

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for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is properly

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granted when, accepting all factual allegations in the complaint as true, there is no issue of

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material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Chavez

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v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quotation marks and alteration omitted). A

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motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is similar to a Rule 12(c)

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motion insofar as it challenges the legal sufficiency of the claims asserted in the complaint. See

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Id. A Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion, and courts apply

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the “same standard.” Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)

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(explaining that the “principal difference” between Rule 12(b)(6) and Rule 12(c) “is the tim[ing]

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of filing”); see also United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054

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n.4 (9th Cir. 2011).

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Judgment on the pleadings is appropriate when a complaint does not plead “enough facts

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to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a

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probability requirement, but it asks for more than a sheer possibility that a defendant has acted

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unlawfully.” Id. (quotation marks omitted). For purposes of ruling on a Rule 12(c) motion, the

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Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the

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light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519

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F.3d 1025, 1031 (9th Cir. 2008).

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The court, however, need not accept as true allegations contradicted by judicially

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noticeable facts, see Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look

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beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(c)

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motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.
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1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in

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the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per

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curiam) (quotation marks omitted). Mere “conclusory allegations of law and unwarranted

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inferences are insufficient” to defeat a motion for judgment on the pleadings. Adams v. Johnson,

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355 F.3d 1179, 1183 (9th Cir. 2004).

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III.

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Request for Judicial Notice
Defendants request judicial notice of plaintiff’s state court filings and court orders,

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namely: (1) the online docket for Lassen County Superior Court Case No. CHW2875 (2)

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plaintiff’s habeas petition filed in Case No. CHW2875 on September 1, 2010; (3) the September

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13, 2010 Order of the Lassen County Superior Court denying plaintiff’s habeas petition; (4) the

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California Court of Appeal for the Third District Case No. C066250 online docket; (5) plaintiff’s

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habeas petition filed in Case No. C066250 on October 4, 2010; (6) the Order returning plaintiff’s

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case to the Lassen County Superior Court on December 15, 2010; (7) the August 22, 2011 Order

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of the Lassen County Superior Court denying plaintiff’s habeas petition; (8) the California Court

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of Appeal for the Third District Case No. C069342 online docket; (9) plaintiff’s habeas petition

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filed in Case No. C069342 on October 3, 2011; and (10) the Order of the California Court of

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Appeal for the Third District denying plaintiff’s habeas petition on December 28, 2011. ECF No.

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89, Ex. A-J (89-1 through 89-10).

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Plaintiff has not raised any objections to judicial notice of these documents in his

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opposition and it appears that they are proper subjects for such notice. See also Headwaters Inc.

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v. United States Forest Service, 399 F.3d 1047, 1051 n.3 (9th Cir. 2005) (taking judicial notice of

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docket in another case); Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1388 & n.9

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(9th Cir. 1987) (taking judicial notice of “pleadings, orders and other papers on file in the

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underlying bankruptcy case”). Accordingly, defendants’ request for judicial notice is granted.

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IV.

Analysis

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Defendants argue that all of plaintiff’s remaining claims are precluded by California’s

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claim preclusion doctrine. Plaintiff brought a habeas action on or about September 1, 2010 in

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Lassen County Superior Court which challenged his 2009 gang validation and placement in the
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ASU/SHU. ECF No. 89-2 at 4-11, 14-22. As noted by defendants, plaintiff specifically

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challenged the reliability and accuracy of the information used to validate him, the decision not to

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combine multiple source items, defendants’ decision to punish him for affiliation rather than

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conduct, and the violation of his due process rights by his indefinite assignment to the SHU. Id.

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The Lassen County Superior Court denied his petition on September 13, 2010. ECF No. 89-3 at

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2.

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Plaintiff filed a habeas petition with the California Court of Appeal for the Third

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Appellate District on October 4, 2010. ECF No. 89-5. The allegations contained in this petition

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were identical to those raised in the petition before the Lassen County Superior Court. Id. at 14-

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23. After weighing arguments from the parties, the Court ordered plaintiff’s petition returned to

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the Lassen County Superior Court on December 15, 2010. ECF No. 89-6.

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Counsel was appointed for plaintiff and respondents filed their return in the Lassen

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County Superior Court on February 7, 2011. ECF No. 89-1 at 2. Plaintiff’s petition was denied

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on August 22, 2011, after the Court reasoned that the process by which plaintiff was validated

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(contained in California Code of Regulations Title 15, Section 3378(c)) was not a violation of his

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due process rights. ECF No. 89-7 at 2-3. The Court also held that the sources used to validate

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plaintiff met the “some evidence” standard and were not, as he alleged, “laundry lists.” Id.

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Following this denial, plaintiff filed in the California Court of Appeal for the Third

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Appellate District a petition for habeas relief on October 3, 2011. ECF No. 89-9 at 2. This

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petition raised the same issues as the previously submitted petitions. Id. at 20. It was denied on

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December 28, 2011, when the Court held that the evidence used to validate him was sufficient.

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ECF No. 89-10 at 2.

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It is well settled that the rules of preclusion apply with equal measure to section 1983

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actions. See Allen v. McCurry, 449 U.S. 90, 105 (1980). In determining whether a state court

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decision is preclusive, federal courts are required to refer to the preclusion rules of the relevant

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state. Miofsky v. Superior Court of California, 703 F.2d 332, 336 (9th Cir. 1983). Under

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California law, res judicata or claim preclusion applies where:

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(1) the issues decided in the prior adjudication were identical to the issues raised in
the present action, (2) the prior proceeding resulted in a final judgment on the
merits, and (3) the party against whom the plea is raised was a party or was in
privity with a party to the prior adjudication.
Citizens for Open Access to Sand and Tide, Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053 (Cal. Ct.

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App. 1998). In determining whether the issues raised in a prior case are identical to the ones
raised in the present action California courts apply the ‘primary rights’ theory under which the

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violation of one primary right gives rise to a single cause of action. Slater v. Blackwood, 15 Cal.

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3d 791, 795 (1975). Specifically:

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[A] cause of action is (1) a primary right possessed by the plaintiff, (2) a
corresponding primary duty devolving upon the defendant, and (3) a harm done by
the defendant which consists in a breach of such primary right and duty. Claims
are ‘identical’ if they involve the same ‘primary right.’

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Acuna v. Regents of Univ. of Cal., 56 Cal. App. 4th 639 (Cal. Ct. App. 1997). Finally, a party has

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had a full and fair opportunity to litigate if the state proceedings satisfied the minimum

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requirements of the Fourteenth Amendment’s Due Process Clause. Kremer v. Chem. Constr.

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Corp., 456 U.S. 461, 481 (1982).

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Res judicata bars plaintiff’s remaining claims in this suit. First, the previous habeas

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petitions raised the same claims at issue in this case, namely: (1) the sufficiency of the evidence

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used to validate him as a gang member, including the decision not to combine separate pieces of

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evidence into a single source; (2) the failure to grant him an interview during the rebuttal stage of

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the validation process; (3) the decision to punish him for affiliation rather than conduct; and (4)

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the length of his confinement in the SHU. ECF No. 89-2 at 4-11, 14-22; ECF No. 89-5 at 14-23;

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ECF No. 89-9 at 20. These claims plainly invoke his primary right to be free from gang

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validation and SHU confinement without adequate procedural and substantive due process – the

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same right which is at issue in this case. Further, the claims are predicated on the same core facts.

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Plaintiff’s habeas petitions resulted in a final judgment on the merits. See Gonzales v. Cal. Dep’t

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of Corr., 739 F.3d 1226, 1231 (9th Cir. 2014) (holding that reasoned denials of habeas petitions

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can form the basis for preclusion). Additionally, the privity element is satisfied even if Warden
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M.D. McDonald and Secretary Cate were the only parties named in plaintiff’s habeas petitions.

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See Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940) (“There is privity between

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officers of the same government so that a judgment in a suit between a party and a representative

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of the United States is res judicata in relitigation of the same issue between that party and another

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officer of the government.”)2

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The arguments raised by plaintiff’s against claim preclusion are unpersuasive. First, he

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argues that defendants delayed in raising the affirmative defense of res judicata and should not be

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allowed to invoke the argument at “this late stage.” ECF No. 96 at 1-2. But defendants timely

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raised the affirmative defense of res judicata/issue preclusion in their answer. ECF No. 64 at 4.

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Plaintiff has not offered any authority which would prevent them from raising the issue in a

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timely filed answer and litigating its merits in motion for judgment on the pleadings. Second, he

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contends that the state proceedings could not have awarded him compensatory or punitive

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damages of the sort he seeks in this action. As noted above, however, merely seeking a different

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form of relief will not exempt claims that would otherwise be barred by res judicata. Eichman,

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147 Cal. App.3d 1170 at 1175. Finally, plaintiff argues that his previous habeas petitions did not

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explicitly raise those equal protection and Fourteenth Amendment claims which assert that his

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validation and placement in the SHU amounted to disciplinary punishment without a

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corresponding disciplinary violation. These claims, while cast differently, are still ultimately

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challenges to his gang validation and placement in segregated housing. As such, they stem from

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the same primary rights as his habeas petitions and are barred on that basis. Crucially, “if two

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actions involve the same injury to the plaintiff and the same wrong by the defendant then the

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same primary right is at stake even if in the second suit the plaintiff pleads different theories of

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recovery . . . and/or adds new facts supporting recovery.” Id. at 1174.

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For these reasons, plaintiff’s claims here are barred. Further, as plaintiff’s inability to

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avoid the res judicata bar renders any amendment futile, this action must be dismissed with

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prejudice.

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Plaintiff was, of course, the petitioner in both of his habeas petitions and is the claimant
in the present case.
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V.

Recommendation
For the reasons stated above, it is hereby RECOMMENDED that defendants’ motion for

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judgment on the pleadings (ECF No. 88) be granted and that the Clerk be directed to enter

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judgment accordingly and close this case.

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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)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 2, 2016.

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