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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RICHARD WHITEHURST, 7 Case No. 13-cv-05932-JSC Plaintiff, 8 v. ORDER GRANTING DEFENDANT'S MOTION TO DISMISS 9 CVS PHARMACY, 10 Re: Dkt. No. 6, 24 Defendant. United States District Court Northern District of California 11 Richard Whitehurst, proceeding pro se, brings this action alleging that Defendant CVS 12 13 failed to accommodate him due to his physical disability and race in violation of the Americans 14 with Disabilities Act and various California state laws. (Dkt. No. 1.) Before the Court is 15 Defendant’s motion to dismiss and to impose sanctions on Plaintiff, arguing that his complaint is 16 barred by the doctrine of res judicata and fails to state a claim. (Dkt. No. 6.) Plaintiff opposes 17 Defendant’s motion (Dkt. No. 22) and cross-moves for sanctions (Dkt. No. 24). Upon 18 consideration of the papers submitted by the parties and the arguments at a hearing held on March 19 20, 2014, the Court GRANTS Defendant’s motion to dismiss and DENIES each party’s motion 20 for sanctions. FACTUAL & PROCEDURAL BACKGROUND 21 This is Plaintiff’s fourth suit against CVS in two and a half years. The first two were filed 22 23 in the United States District Court for the Central District of California. Plaintiff withdrew his 24 claims against CVS in the first case by omitting it as a defendant in the amended complaint (Dkt. 25 No. 6-2 at 2, 42), and voluntarily dismissed the second case (id. at 82). 1 The third was filed in this 26 27 28 1 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 1 district and assigned to Judge White, who transferred it to the Central District because, in 2 dismissing Plaintiff’s second case, Judge Guilford of the Central District ordered that “if the 3 claims made in his case are ever reasserted in another case, they must be brought before this 4 Court.” (Dkt. 6-3 at 22). Plaintiff’s third complaint alleged that CVS and three particular CVS 5 locations in Oakland, San Francisco, and Long Beach refused to fill his prescription because he is 6 “a person of color, Disabled, and is a Senior Citizen,” (Dkt. 6-3 at 2 (“Central District action”) at ¶ 7 18.) Concluding that Plaintiff failed to state a claim under the Unruh Civil Rights Act, the Civil 8 Rights Act of 1964 and 1991, the Americans with Disabilities Act or for fraud, intentional 9 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 11 United States District Court Northern District of California 10 also Whitehurst v. CVS Pharm., No. CV 13-6275(ANx), 2013 WL 6086905, at *4-5 (C.D. Cal. 12 Nov. 18, 2013). 13 About a month later, in December 2013, Plaintiff filed the present action, alleging that 14 Defendant refused to fill his prescriptions at three locations “because Plaintiff is Black, Senior 15 Citizen, and handicapped.” (Dkt. No. 1 at 9). In particular, Plaintiff states that a CVS located in 16 Oakland told him that it did not have the medications to fill his five prescriptions, but filled 17 prescriptions for two of those medications for a white female. (Id. at 7-8.) In addition, when he 18 tried to fill his prescriptions at a CVS located in San Francisco, the clerk used a racial epithet and 19 explained that no CVS Pharmacy would fill any prescriptions for him because he had filed a civil 20 rights complaint against the company and because he was black. (Id. at 8.) Plaintiff also alleges 21 that he finds it difficult to reach the top shelves at CVS due to his disability. (Id. at ¶ 20.) 22 Plaintiff’s Complaint brings causes of action under (1) the Americans with Disabilities 23 Act; (2) the California Disabled Persons Act, California Civil Code section 54; (3) the Unruh Civil 24 Rights Act, California Civil Code section 51; (4) California Health & Safety Code section 19955; 25 (5) the Unfair Business Practices Act, California Business and Professions Code section 17200; 26 and (6) California Civil Code section 3345. (Dkt. No. 1.) In addition, Plaintiff brings claims for 27 28 Cir. 1992); see also Fed. R. Evid. 201. 2 1 negligence and intentional and negligent infliction of emotional distress. (Id.) Defendant moves 2 to dismiss Plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6) and for sanctions. DISCUSSION 3 Defendant argues that Plaintiff’s claims are barred by res judicata because Judge Guilford 4 5 dismissed them on the merits in Plaintiff’s third suit against Defendants. In the alternative, 6 Defendant asserts that Plaintiff’s complaint should be dismissed for Plaintiff’s failure to comply 7 with Judge Guilford’s Order to file any such claims before that court. 8 A. 9 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 11 United States District Court Northern District of California 10 Serv., 721 F.3d 1133, 1141 (9th Cir. 2013). Two of these factors are easily met. First, Plaintiff 12 and Defendant were both parties to the Central District action. (Dkt. 6-3 at 2.) Second, Judge 13 Guilford’s dismissal of that case without leave to amend constitutes a final judgment on the 14 merits. Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002). 15 Third, to determine whether the present action concerns the same claims as the prior 16 litigation, the Court considers “(1) whether rights or interests established in the prior judgment 17 would be destroyed or impaired by prosecution of the second action; (2) whether substantially the 18 same evidence is presented in the two actions; (3) whether the two suits involve infringement of 19 the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.” 20 Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal quotation marks and 21 citation omitted). The last of these is the most important. Id. Indeed, satisfaction of the fourth 22 factor alone is sufficient to find an identity of claims without an analysis of the other factors. See 23 Int’l Union of Operating Eng’rs–Employers Constr. Indus. Pension, Welfare and Training Trust 24 Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993) (citing cases finding successive claims barred 25 by res judicata based solely on analysis of the fourth factor). “Whether two suits arise out of the 26 same transactional nucleus depends upon whether they are related to the same set of facts and 27 whether they could be conveniently tied together.” ProShipLine Inc. v. Aspen Infrastructures Ltd., 28 609 F.3d. 960, 968 (9th Cir. 2010). 3 Plaintiff’s Complaint alleges Defendant refused to fill his prescriptions “because Plaintiff 1 is Black, Senior Citizen, and handicapped.” (Dkt. No. 1 at 9.) Plaintiff’s specific factual 3 allegations that two CVS locations refused to fill his prescriptions amounts to a claim of race 4 discrimination, just like his complaint in the Central District action. See Dkt. No. 1 at 7-8. 5 Plaintiff does not dispute that this Complaint alleges race discrimination once again. Instead, 6 Plaintiff relies on the argument that the Central District action did not allege violations of the 7 California Disabled Persons Act, California Civil Code section 54; the Unruh Civil Rights Act, 8 California Civil Code section 51, California Health & Safety Code section 19955, or California 9 Civil Code section 3345. However, Plaintiff “cannot avoid the bar of res judicata merely by 10 alleging conduct by the defendant not alleged in his prior action or by pleading a new legal 11 United States District Court Northern District of California 2 theory.” McClain v. Apodaca, 793 F.2d 1031, 1034 (9th Cir. 1986). The inclusion of new claims 12 is irrelevant because the basis of his claims—race discrimination—is the same. Plaintiff also 13 contends this Complaint involves three CVS locations not listed in Central District complaint. 14 (Dkt. No. 22 at 18.) Nevertheless, the Court cannot find that these are new claims that arose after 15 the dismissal of his prior complaint on November 18, 2013, because Plaintiff does not state when 16 the incidents at each of these locations occurred. Again, he filed this action less only one month 17 after dismissal of the Central District action. Finally, alleging he was told that no CVS would fill 18 Plaintiff’s prescriptions because he had filed a civil rights complaint against the company, Plaintiff 19 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 20 21 final judgment on the merits, Plaintiff’s Complaint is barred by the doctrine of res judicata. 22 B. The Court Declines to Impose Sanctions 23 Defendant asks the Court to impose sanctions on Plaintiff under Federal Rule of Civil 24 Procedure 11 to deter Plaintiff from continuing to file claims against CVS that he knows to be 25 meritless, and to issue an order requiring Plaintiff to seek leave of court before filing future 26 lawsuits. In support of its motion, Defendant cites to a PACER record of 220 cases Plaintiff has 27 filed in this District since 2003, in addition to 44 in the Eastern District and 26 in the Central 28 District. (Dkt. No. 6-6 at 4-10.) The Court finds that monetary sanctions are not appropriate here, 4 1 and Defendant does not adequately demonstrate the need for imposing a pre-filing order, which 2 the Ninth Circuit has cautioned is “an extreme remedy that should rarely be used.” Molski v. 3 Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). Given that more than 200 of the 4 cases Plaintiff filed in this District date were filed in 2003 and less than ten were filed in the last 5 5 years, the Court concludes that the sanction is not warranted at this time. 6 Plaintiff’s motion for sanctions must also be denied because Defendant’s motion to dismiss 7 is in no way procedurally or legally improper, and, as indicated by the Court’s conclusion, is well 8 founded. CONCLUSION 9 10 United States District Court Northern District of California 11 12 13 14 15 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 ______________________________________ JACQUELINE SCOTT CORLEY United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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