Harvey v. Thornton et al

Filing 31

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 12/10/13. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 12/10/2013)

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*E-Filed 12/10/13*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ORDER OF DISMISSAL

Plaintiff,

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No. C 12-2866 RS (PR)

JAMES EARL HARVEY,

v.
B. THORNTON, et al.,
Defendants.
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INTRODUCTION

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This is a federal civil rights action filed pursuant to 42 U.S.C. § 1983 by a pro se state

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prisoner. For the reasons stated herein, defendants’ motion to dismiss is GRANTED, and the

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action is DISMISSED.

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BACKGROUND
Plaintiff claims that defendants, correctional staff for the California Department of

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Corrections and Rehabilitation, violated his First Amendment rights by confiscating a letter

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referencing the Black August Organizing Committee. Defendants move to dismiss the

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complaint on grounds that plaintiff’s claims were previously litigated in federal court, and

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therefore are barred by the doctrine of res judicata.

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No. C 12-2866 RS (PR)
ORDER OF DISMISSAL

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The following facts are undisputed. On June 9, 2008, plaintiff filed a civil rights

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action (“Harvey I”) asserting that prison officials violated his First Amendment rights by

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confiscating certain pieces of mail. (Defs.’ Request for Judicial Notice (“RJN”) Ex. A). On

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August 19, 2008, defendants confiscated a letter sent to plaintiff because it allegedly

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contained gang-related material. (Mot. to Dismiss (“MTD”) at 2.) Plaintiff tried to

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supplement his amended complaint in Harvey I with the August 19, 2008 incident, and on

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October 10, 2008, the court dismissed the complaint with leave to amend, instructing plaintiff

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to, within 30 days, “file an amended complaint containing all related claims plaintiff wishes

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to bring in this action.” (RJN Ex. B.) Plaintiff filed an amended complaint on October 24,

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2008, which did not include the August 19, 2008 confiscation. (RJN Ex. C.) Plaintiff

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subsequently filed another civil-rights action against prison officials (“Harvey II”) alleging

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First Amendment violations for confiscating mail, which included the August 19, 2008

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incident. (RJN Ex. E.) The court dismissed Harvey II because Harvey I was still pending,

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but stated that, “[s]hould plaintiff wish to include the . . . August 19, 2008 incident[] in his

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pending complaint . . . he must file a motion in [Harvey I] seeking a stay of proceedings and

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a leave of court to file an amended complaint.” (RJN Ex. F at 3–4.) Plaintiff filed a third

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civil-rights action on October 28, 2010 (“Harvey III”), alleging prison officials violated his

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First Amendment rights by confiscating his mail. (RJN Exs. H, I.) This action did not

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include the August 19, 2008 incident. All parties in Harvey I settled on January 13, 2011,

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and the case was dismissed with prejudice. (RJN Exs. J, K.) All parties in Harvey III settled

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on December 7, 2012, and the case was dismissed with prejudice. (RJN Exs. M, O.) The

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instant action was filed on June 4, 2012, raising claims related to the August 19, 2008

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confiscation.

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No. C 12-2866 RS (PR)
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DISCUSSION

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The doctrine of res judicata, or claim preclusion, "'bars all grounds for recovery which

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could have been asserted, whether they were or not, in a prior suit between the same parties

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. . . on the same cause of action.'" C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100

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(9th Cir. 1987) (citing McClain v. Apodaca, 793 F.2d 1031, 1033 (9th Cir. 1986)). A final

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judgment on the merits bars further claims by parties or their privies based on the same cause

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of action. See Montana v. United States, 440 U.S. 147, 153 (1979). Judgment entered on a

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motion to dismiss or for summary judgment is just as binding as a judgment entered after a

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trial of the facts. See Ruple v. City of Vermillion, 714 F.2d 860, 862 (8th Cir. 1983), cert.

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denied, 465 U.S. 1029 (1984). Where the prior action was dismissed, the dismissal must

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have been on the merits and with prejudice in order for the prior judgment to have claim-

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preclusive effect: that the dismissal was with prejudice is a necessary, but not a sufficient,

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condition for claim preclusion. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S.

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497, 505–06 (2001).

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Four criteria are used to determine whether successive lawsuits involve the same

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cause of action: (1) whether rights or interests established in the prior judgment would be

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destroyed or impaired by prosecution of the second action; (2) whether substantially the same

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evidence is presented in the two actions; (3) whether the two suits involve infringement of

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

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facts. C.D. Anderson, 832 F.2d at 1100.

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Plaintiff’s claims are barred by res judicata because the record shows that all elements

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of that doctrine are present. Both defendants in this case were parties to all three previous

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law suits. Harvey I and Harvey III were both dismissed with prejudice after a settlement,

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which is just as binding as a judgment entered after a trial of the facts. Ruple, 714 F.2d at

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862. For the purposes of res judicata, the instant lawsuit involves the same cause of action

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as in the three previous law suits. All prior suits involved First Amendment claims stemming

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No. C 12-2866 RS (PR)
ORDER OF DISMISSAL

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from the confiscation of letters. The same evidence from the past suits — plaintiff’s gang

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affiliations, the gang affiliation of the Black August group, prison policies regarding gang

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communications, and the training and qualifications of the defendants — would be used in

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the instant suit. The only factual difference between the confiscation on August 19, 2008 and

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all the other confiscations was the particular letter, which, like in the other cases, plaintiff

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claimed was a political communication, and not gang related. The August 19, 2008 incident

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was one of many incidents forming the basis for plaintiff’s argument in the prior suits that,

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“you can’t look at this as a single act . . . this is a continuation of IGI ongoing campaign to

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deny my First Amendment/free speech [rights].” (RJN Ex. I at 5.) The one suit in which

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plaintiff raised the August 19, 2008 incident (Harvey II) was dismissed because the claims

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were so similar to the then-pending Harvey I.

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Plaintiff argues that he could not have included the August 19, 2008 incident in his

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Harvey I amended complaint because he had not yet exhausted his administrative remedies

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when the court asked him to file the amended complaint. (Response to MTD at 2.) Plaintiff,

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however, could have added this incident to Harvey I after the dismissal of Harvey II, or when

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he filed Harvey III, as both occurred well after he exhausted his administrative remedies on

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January 9, 2009. This claim about the August 19, 2008 incident should have been raised in

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plaintiff’s prior actions, and cannot now be raised in this subsequent action.

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CONCLUSION

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For the reasons stated above, defendants’ motion to dismiss (Docket No. 19) is

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GRANTED. The action is DISMISSED WITH PREJUDICE. The Clerk shall terminate

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Docket No. 19, enter judgment in favor of all defendants as to all claims, and close the file.

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IT IS SO ORDERED.

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DATED: December 10, 2013
RICHARD SEEBORG
United States District Judge

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No. C 12-2866 RS (PR)
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