Whitehurst v. CVS Pharmacy

Filing 35

ORDER by Magistrate Judge Jacqueline Scott Corley granting 6 Motion to Dismiss; denying 24 Motion for Sanctions (Attachments: # 1 Certificate of Service) (ahm, COURT STAFF) (Filed on 4/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD WHITEHURST,

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Case No. 13-cv-05932-JSC

Plaintiff,
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v.

ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS

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CVS PHARMACY,

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Re: Dkt. No. 6, 24

Defendant.

United States District Court
Northern District of California

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Richard Whitehurst, proceeding pro se, brings this action alleging that Defendant CVS

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failed to accommodate him due to his physical disability and race in violation of the Americans

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with Disabilities Act and various California state laws. (Dkt. No. 1.) Before the Court is

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Defendant’s motion to dismiss and to impose sanctions on Plaintiff, arguing that his complaint is

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barred by the doctrine of res judicata and fails to state a claim. (Dkt. No. 6.) Plaintiff opposes

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Defendant’s motion (Dkt. No. 22) and cross-moves for sanctions (Dkt. No. 24). Upon

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consideration of the papers submitted by the parties and the arguments at a hearing held on March

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20, 2014, the Court GRANTS Defendant’s motion to dismiss and DENIES each party’s motion

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for sanctions.
FACTUAL & PROCEDURAL BACKGROUND

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This is Plaintiff’s fourth suit against CVS in two and a half years. The first two were filed

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in the United States District Court for the Central District of California. Plaintiff withdrew his

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claims against CVS in the first case by omitting it as a defendant in the amended complaint (Dkt.

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No. 6-2 at 2, 42), and voluntarily dismissed the second case (id. at 82). 1 The third was filed in this

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The Court grants Defendant’s request for judicial notice of the court records and orders (Dkt.
No. 6-1) because “those proceedings have a direct relation to the matters at issue.” United States
ex. rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th

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district and assigned to Judge White, who transferred it to the Central District because, in

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dismissing Plaintiff’s second case, Judge Guilford of the Central District ordered that “if the

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claims made in his case are ever reasserted in another case, they must be brought before this

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Court.” (Dkt. 6-3 at 22). Plaintiff’s third complaint alleged that CVS and three particular CVS

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locations in Oakland, San Francisco, and Long Beach refused to fill his prescription because he is

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“a person of color, Disabled, and is a Senior Citizen,” (Dkt. 6-3 at 2 (“Central District action”) at ¶

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18.) Concluding that Plaintiff failed to state a claim under the Unruh Civil Rights Act, the Civil

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Rights Act of 1964 and 1991, the Americans with Disabilities Act or for fraud, intentional

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infliction of emotional distress, or conspiracy, Judge Guilford granted defendants’ motion to
dismiss without leave to amend and entered judgment for defendants. (Dkt. 6-3 at 44, 46); see

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United States District Court
Northern District of California

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also Whitehurst v. CVS Pharm., No. CV 13-6275(ANx), 2013 WL 6086905, at *4-5 (C.D. Cal.

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Nov. 18, 2013).

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About a month later, in December 2013, Plaintiff filed the present action, alleging that

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Defendant refused to fill his prescriptions at three locations “because Plaintiff is Black, Senior

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Citizen, and handicapped.” (Dkt. No. 1 at 9). In particular, Plaintiff states that a CVS located in

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Oakland told him that it did not have the medications to fill his five prescriptions, but filled

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prescriptions for two of those medications for a white female. (Id. at 7-8.) In addition, when he

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tried to fill his prescriptions at a CVS located in San Francisco, the clerk used a racial epithet and

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explained that no CVS Pharmacy would fill any prescriptions for him because he had filed a civil

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rights complaint against the company and because he was black. (Id. at 8.) Plaintiff also alleges

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that he finds it difficult to reach the top shelves at CVS due to his disability. (Id. at ¶ 20.)

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Plaintiff’s Complaint brings causes of action under (1) the Americans with Disabilities

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Act; (2) the California Disabled Persons Act, California Civil Code section 54; (3) the Unruh Civil

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Rights Act, California Civil Code section 51; (4) California Health & Safety Code section 19955;

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(5) the Unfair Business Practices Act, California Business and Professions Code section 17200;

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and (6) California Civil Code section 3345. (Dkt. No. 1.) In addition, Plaintiff brings claims for

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Cir. 1992); see also Fed. R. Evid. 201.
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negligence and intentional and negligent infliction of emotional distress. (Id.) Defendant moves

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to dismiss Plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6) and for sanctions.
DISCUSSION

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Defendant argues that Plaintiff’s claims are barred by res judicata because Judge Guilford

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dismissed them on the merits in Plaintiff’s third suit against Defendants. In the alternative,

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Defendant asserts that Plaintiff’s complaint should be dismissed for Plaintiff’s failure to comply

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with Judge Guilford’s Order to file any such claims before that court.

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A.

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Plaintiff’s Complaint is Barred by Res Judicata
Res judicata bars the relitigation of a claim “where there is (1) an identity of claims, (2) a

final judgment on the merits, and (3) identity or privity between parties.” Tritz v. U.S. Postal

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United States District Court
Northern District of California

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Serv., 721 F.3d 1133, 1141 (9th Cir. 2013). Two of these factors are easily met. First, Plaintiff

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and Defendant were both parties to the Central District action. (Dkt. 6-3 at 2.) Second, Judge

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Guilford’s dismissal of that case without leave to amend constitutes a final judgment on the

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merits. Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002).

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Third, to determine whether the present action concerns the same claims as the prior

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litigation, the Court considers “(1) whether rights or interests established in the prior judgment

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

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same 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 facts.”

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Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal quotation marks and

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citation omitted). The last of these is the most important. Id. Indeed, satisfaction of the fourth

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factor alone is sufficient to find an identity of claims without an analysis of the other factors. See

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Int’l Union of Operating Eng’rs–Employers Constr. Indus. Pension, Welfare and Training Trust

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Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993) (citing cases finding successive claims barred

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by res judicata based solely on analysis of the fourth factor). “Whether two suits arise out of the

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same transactional nucleus depends upon whether they are related to the same set of facts and

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whether they could be conveniently tied together.” ProShipLine Inc. v. Aspen Infrastructures Ltd.,

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609 F.3d. 960, 968 (9th Cir. 2010).
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Plaintiff’s Complaint alleges Defendant refused to fill his prescriptions “because Plaintiff

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is Black, Senior Citizen, and handicapped.” (Dkt. No. 1 at 9.) Plaintiff’s specific factual

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allegations that two CVS locations refused to fill his prescriptions amounts to a claim of race

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discrimination, just like his complaint in the Central District action. See Dkt. No. 1 at 7-8.

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Plaintiff does not dispute that this Complaint alleges race discrimination once again. Instead,

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Plaintiff relies on the argument that the Central District action did not allege violations of the

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California Disabled Persons Act, California Civil Code section 54; the Unruh Civil Rights Act,

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California Civil Code section 51, California Health & Safety Code section 19955, or California

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Civil Code section 3345. However, Plaintiff “cannot avoid the bar of res judicata merely by

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alleging conduct by the defendant not alleged in his prior action or by pleading a new legal

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United States District Court
Northern District of California

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theory.” McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986). The inclusion of new claims

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is irrelevant because the basis of his claims—race discrimination—is the same. Plaintiff also

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contends this Complaint involves three CVS locations not listed in Central District complaint.

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(Dkt. No. 22 at 18.) Nevertheless, the Court cannot find that these are new claims that arose after

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the dismissal of his prior complaint on November 18, 2013, because Plaintiff does not state when

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the incidents at each of these locations occurred. Again, he filed this action less only one month

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after dismissal of the Central District action. Finally, alleging he was told that no CVS would fill

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Plaintiff’s prescriptions because he had filed a civil rights complaint against the company, Plaintiff

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seems to suggest CVS’s conduct is retaliatory, but he cites no law prohibiting such conduct.
Because the Central District case involved the same parties and claims and resulted in a

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final judgment on the merits, Plaintiff’s Complaint is barred by the doctrine of res judicata.

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B.

The Court Declines to Impose Sanctions

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Defendant asks the Court to impose sanctions on Plaintiff under Federal Rule of Civil

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Procedure 11 to deter Plaintiff from continuing to file claims against CVS that he knows to be

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meritless, and to issue an order requiring Plaintiff to seek leave of court before filing future

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lawsuits. In support of its motion, Defendant cites to a PACER record of 220 cases Plaintiff has

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filed in this District since 2003, in addition to 44 in the Eastern District and 26 in the Central

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District. (Dkt. No. 6-6 at 4-10.) The Court finds that monetary sanctions are not appropriate here,
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and Defendant does not adequately demonstrate the need for imposing a pre-filing order, which

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the Ninth Circuit has cautioned is “an extreme remedy that should rarely be used.” Molski v.

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Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). Given that more than 200 of the

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cases Plaintiff filed in this District date were filed in 2003 and less than ten were filed in the last 5

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years, the Court concludes that the sanction is not warranted at this time.

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Plaintiff’s motion for sanctions must also be denied because Defendant’s motion to dismiss

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is in no way procedurally or legally improper, and, as indicated by the Court’s conclusion, is well

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founded.
CONCLUSION

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United States District Court
Northern District of California

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For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss without
leave to amend and DENIES both parties’ motion for sanctions.
IT IS SO ORDERED.
Dated: April 4, 2014
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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