Moore v. Hatton et al

Filing 34

ORDER GRANTING MOTION FOR SCREENING; OF DISMISSAL WITH LEAVE TO AMEND re 2 MOTION for Leave to Proceed in forma pauperis filed by Johnny Andrew Moore. Amended Complaint due by 8/4/2020. Signed by Judge Beth Labson Freeman on 7/7/2020. (tshS, COURT STAFF) (Filed on 7/7/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:17-cv-03696-BLF Document 34 Filed 07/07/20 Page 1 of 5

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHNNY ANDREW MOORE,

United States District Court
Northern District of California

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Plaintiff,

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v.

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Case No. 17-03696 BLF (PR)
ORDER GRANTING MOTION FOR
SCREENING; OF DISMISSAL
WITH LEAVE TO AMEND

S. HATTON, et al.,

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Defendants.

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(Docket No. 2)

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Plaintiff, a California inmate, filed a pro se complaint in Monterey County Superior

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Court, which Defendants removed to this Court under 28 U.S.C. §§ 1441(a), 1446(b). Dkt.

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No. 1. Defendants assert that the Court has original subject-matter jurisdiction over this

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action under 28 U.S.C. § 1331 because Plaintiff’s complaint alleges violations of the

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Eighth Amendment under 42 U.S.C. § 1983, as well as a First Amendment retaliation

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claim. Id. at 2. Defendants also assert that Plaintiff’s remaining causes of action fall

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within federal supplemental jurisdiction under 28 U.S.C. § 1367. Id. Defendants request

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the complaint be screened under 28 U.S.C. 1915A(a). Dkt. No. 2. The request for a

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screening is GRANTED. For the reasons discussed below, complaint is DISMISSED with

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leave to amend.

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///

Case 5:17-cv-03696-BLF Document 34 Filed 07/07/20 Page 2 of 5

DISCUSSION

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A.

Plaintiff’s Claims

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Plaintiff names the following Defendants, who are officials employed by the

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California Department of Corrections and Rehabilitation (“CDCR”): (1) S. Hatton, Warden

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of CTF; (2) K. Hoffman, Associate Warden of CTF; (3) and M. Atchley, Chief Deputy

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Warden of CTF. Dkt. No. 1 at 4. Plaintiff claims that CTF began construction of a new

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building between the interfaith chapels “without a memorandum or study release made to

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the general population that the construction could or would expose inmates to

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contaminants in the ground and foundation, which can become airborn[e] pathogens such
as dirt, dust, concrete, wood, asbestos, metal, paint, glass during the construction.” Id.

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United States District Court
Northern District of California

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Plaintiff claims the construction started before April 2016, when he first alerted

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Defendants to the “potential of exposing inmates to toxic materials.” Id. at 3. Plaintiff

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claims that shortly after construction started, he began to hear of inmates getting sick from

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valley fever, a fungus that attacks the lung and body organs. Id. at 4. On April 17, 2017,

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he experienced a viral infection and was treated for dry cough, aches and pain, headaches,

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runny nose and watery eyes. Id. at 5. Plaintiff claims that he is now exposed to valley

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fever and is being treated for it, “because Defendants failed in the duty to provide basic

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humane conditions of confinement, and this condition is harmful to his health and body.”

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Id. at 5-6. Based on these allegations, Plaintiff claims Defendants were deliberately

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indifferent to his health and safety. Id. at 6.

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Plaintiff also claims intentional infliction of emotional distress based on retaliatory

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actions by Defendants who used their subordinates to “confiscate/loss/or destroy

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documents pertaining to this case as reprisal for filing suite.” Id. at 8. Specifically,

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Plaintiff claims that the “I.S.U.” conducted a cell search on May 19, 2017, during which

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they went through all his documents and paperwork, and again on July 21, 2017, but this

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time “to raid, search, intimidate, harass, and remove all legal documents, legal material,

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and to separate me from my property by taking it with them which in turn made me feel

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Case 5:17-cv-03696-BLF Document 34 Filed 07/07/20 Page 3 of 5

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fearful for my safety, well-being, and health at this prison.” Id. at 8. Plaintiff claims that

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he has mental health issues, and that the July 21st incident “raised my stress level to

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uncontrollable feelings of hearing voices, suicidal thoughts, depression, and wanting to

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hurt myself.” Id. He was later seen by a “psyc doctor [sic]” who decided to move Plaintiff

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to a crisis bed. Id.

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B.

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Analysis
Plaintiff’s first claim of deliberate indifference to his health and safety must be

dismissed under res judicata. Under res judicata, a final judgment on the merits bars

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further claims by parties or their privies based on the same cause of action. See Montana

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v. United States, 440 U.S. 147, 153 (1979). Federal law governs the preclusive effect of a

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United States District Court
Northern District of California

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federal case decided by a federal court. See Allen v. City of Los Angeles, 92 F.3d 842, 849

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(9th Cir. 1996). This court may examine the preclusive effect of a prior judgment sua

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sponte. See Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); McClain v. Apodaca,

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793 F.2d 1031, 1032-33 (9th Cir. 1986).

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In a prior case before this Court, Plaintiff raised the same Eighth Amendment

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deliberate indifference claim against Defendants Hatton, Hoffman, and Atchley. See

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Moore v. Hatton, et al., Case No. 17-03696 BLF (PR), Dkt. No. 1. In that matter, the

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Court granted Defendants’ motion to dismiss the claim under Rule 12(b)(6) of the Federal

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Rules of Civil Procedure because the complaint contained insufficient facts from which the

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reasonable inference could be drawn that Defendants are liable for the misconduct alleged.

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Id., Dkt. No. 32 at 9. The claim was dismissed with prejudice and judgment was entered in

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favor of Defendants. Id. at 10; Dkt. No. 33. Accordingly, because the instant complaint

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contains the same cause of action against the same Defendants as in the prior action in

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which there was a final judgment on the merits, this Eighth Amendment claim is barred by

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res judicata. See Montana, 440 U.S. at 153.

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With respect to Plaintiff’s retaliation claim and the related state law claim for
intentional infliction of emotional distress, the claims must be dismissed with leave to
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Case 5:17-cv-03696-BLF Document 34 Filed 07/07/20 Page 4 of 5

amend. “Within the prison context, a viable claim of First Amendment retaliation entails

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five basic elements: (1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

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the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

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Cir. 2005) (footnote omitted). First of all, Plaintiff makes only a conclusory allegation that

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Defendants used their subordinates to take adverse action against him. See supra at 2. He

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must allege specific facts as to each Defendant’s individual conduct to satisfy the first

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element of a retaliation claim. Furthermore, Plaintiff fails to plead the fifth element, i.e.,

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that the cell searches did not reasonably advance a legitimate correctional goal. Plaintiff

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United States District Court
Northern District of California

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will be granted leave to file an amended complaint to attempt to allege sufficient facts to

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state a retaliation claim. In the amended complaint, Plaintiff may reallege his claim for

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intentional infliction of emotional distress. However, if Plaintiff fails to state a retaliation

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claim in the amended complaint, the Court will decline to exercise supplemental

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jurisdiction over any remaining state law claims and dismiss them to pursuing them in state

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court.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Defendants’ request for screening is GRANTED. Dkt. No. 2.

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2.

Plaintiff’s Eighth Amendment deliberate indifference claim is DISMISSED

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as barred by res judicata.
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The First Amendment retaliation claim is DISMISSED with leave to

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amend. Within twenty-eight (28) days from the date this order is filed, Plaintiff shall file

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an amended complaint using the court’s form complaint to attempt to state sufficient facts

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to state a First Amendment retaliation claim. The amended complaint must include the

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caption and civil case number used in this order, i.e., Case No. C 20-01445 BLF (PR), and

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Case 5:17-cv-03696-BLF Document 34 Filed 07/07/20 Page 5 of 5

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the words “AMENDED COMPLAINT” on the first page. Plaintiff must answer all the

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questions on the form in order for the action to proceed. Plaintiff is reminded that the

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amended complaint supersedes the original, and Plaintiff may not make references to the

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original complaint. Claims not included in the amended complaint are no longer claims

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and defendants not named in an amended complaint are no longer defendants. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).

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Failure to respond in accordance with this order by filing an amended

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complaint in the time provided will result in the dismissal of this action without

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prejudice and without further notice to Plaintiff.

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4.

In the alternative, Plaintiff may file notice in the same time provided above

United States District Court
Northern District of California

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that he wishes to strike all the federal claims from this action and have the matter

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remanded back to state court to pursue the sole state law claim for intentional infliction of

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emotional distress.

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This order terminates Docket No. 2.

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IT IS SO ORDERED.

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Dated: _June 7, 2020____________

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Granting Screening; DWLTA
PRO-SE\BLF\CR.17\03696Moore_dwlta

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