BARBARA A. McAULIFFE, Magistrate Judge.
Plaintiff Barry Louis Lamon is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This case proceeds on Plaintiff's First Amendment retaliation claims, state-law negligence claims based on the same factual allegations, and California Civil Code § 52.1 claims, against Defendants Amrhein, Bondoc, Schultz, Austin, Wilson, and Yzguerra. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Currently before the Court is Defendants' Motion for Judgment on the Pleadings, filed on January 9, 2017. (ECF No. 71.) On January 23, 2017, Plaintiff filed an opposition to Defendants' motion, (ECF No. 73), and on January 30, 2017, Defendants filed a reply to Plaintiff's opposition, (ECF No. 75.) Defendants' motion is deemed submitted without oral argument. Local Rule 230(1).
Defendants bring their motion under Federal Rule of Civil Procedure 12(c). They argue that because Plaintiff has previously litigated these claims in 2009, when the parties stipulated to a dismissal with prejudice, and in 2011, when the Court dismissed the claims, Plaintiff is now barred from raising them this action under the doctrine of claims preclusion.
Plaintiff opposes the motion on several grounds. First, he argues that Defendants' motion is procedurally incorrect, as a motion for the judgment on the pleadings shall only be filed after Defendants have filed an answer, which they have not done here. Plaintiff further argues that the motion should be converted to a motion for summary judgment, and denied for lack of merit. Plaintiff also does not deny bringing actions in 2009 and 2011, but argues that there is no privity of the parties or identity of claims between this action and the 2009 action. Plaintiff further argues that the 2011 action did not proceed to a judgment on the merits. Thus, Plaintiff argues that Defendants' motion must be denied.
In reply, Defendants concede that their motion should not have been brought under Rule 12(c) as the pleadings have not closed, but they assert that their motion may be converted to a motion to dismiss pursuant to Rule 12(b)(6). Defendants further argue that their motion should not be converted to a motion for summary judgment because the matters they rely upon may be considered on a Rule 12(b)(6) motion. To Plaintiff's preclusion arguments, Defendants argue that Plaintiff's 2011 action ended in a judgment on the merits, as it was involuntarily dismissed for the failure to comply with a court order, and that his 2009 action arise out of the same legal theories, same facts, and involved the same parties. Therefore, they assert that their motion should be granted.
Defendants have admitted a procedural error in bringing a Rule 12(c) motion at this juncture. Therefore, as a threshold issue, the Court must determine whether Defendants' motion must be denied on those grounds, or whether it may be converted to a motion to dismiss under Rule 12(b)(6), as they request.
Rule 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A Rule 12(c) motion for judgment on the pleadings is substantially identical to a motion to dismiss for failure to state a claim under Rule 12(b)(6), because both permit challenges to the legal sufficiency of the opposing party's pleadings.
In this case, Defendants filed their motion for judgment on the pleadings before any answer was filed, and it is therefore premature. However, the Court finds it appropriate to convert the motion to a motion to dismiss pursuant to Rule 12(b)(6). As the same legal standards apply, there is no risk to either party.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
As noted above, this case concerns Plaintiff's First Amendment retaliation claims, state-law negligence claims, and California Civil Code § 52.1 claims, against Defendants Amrhein, Bondoc, Schultz, Austin, Wilson, and Yzguerra. These claims are based upon allegations that Plaintiff was denied access to medical care, either in the form of access to the nutritional supplement "Nutren" (defendants Amrhein, Bondoc, Clark, and Schultz) or by being refused transport to a scheduled medical appointment off-site (defendants Austin, Wilson, and Yzguerra), in retaliation for Plaintiff having previously filed administrative grievances and lawsuits against prison staff. The grievances involved allegations that Plaintiff's meals and medications were being tainted by prison officials, and were made in May and June 2009. Defendants argue that Plaintiff is precluded from bringing these claims under the doctrine of res judicata.
The doctrine of claim preclusion bars the re-litigation of claims previously decided on their merits.
When determining, for claim preclusion purposes, whether the present dispute concerns the same claims as prior litigation, the Ninth Circuit considers: "(1) [W]hether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The last of these criteria is the most important."
As noted above, Defendants argue that the claims in this case have been litigated before, in Lamon v. Adams, et al., No. 1:09-cv-00205-LJO-JLT (E.D. Cal.) (the "2009 action"), and Lamon v. Amrhein, et al., No. 1:11-cv-00615-GSA (E.D. Cal.) (the "2011 action"). As noted above, Plaintiff does not dispute bringing the actions nor their dispositions, as reflected in the judicial documents that Defendants request for the Court to take judicial notice.
Regarding the 2009 action, Plaintiff argues that his claims are distinct and not barred, as there is neither privity between the parties nor identity of claims. In that case, Plaintiff sued several prison officials employed at Corcoran State Prison ("CSP"). Plaintiff alleged that, sometime after May and June 2008, these prison officials used excessive force on him, placed him on strip-cell status, and housed him with known gang members in retaliation for filing inmate grievances and lawsuits related to tainting his meals. Plaintiff thus proceeded on Eighth Amendment claims of excessive force and deliberate indifference to his safety, and First Amendment retaliation claims.
Although the prison officials in the 2009 action are not the same as Defendants in this action, Defendants nevertheless assert that there is privity between the parties because they are all prison officials with identical interests accused of similar retaliatory conduct during a similar time period. In arguing that the parties need not be identical, Defendants rely upon a case in which an employee was precluded from bringing a suit where the California Fair Employment and Housing Commission had previously litigated his claim, with prior authorization, at the employee's request, and where the employee had an interest in the outcome of the litigation.
The action here is distinguishable from
Defendants also rely upon
The third case Defendants rely upon is a closer case than the others, as it concerned prison officials at separate institutions, who were found to be in privity as they were all Federal Bureau of Prison officials.
The Court also does not find that there is an identity of claims in the 2009 action and this action. Claims are identical when they derive from the same transactional nucleus of facts, notwithstanding any "different legal labels" attached to the claims.
Regarding the 2011 action, there is no dispute that the claims raised and parties in that action are the same as in this action. Plaintiff only disputes whether there was a final judgment on the merits.
Plaintiff's 2011 action was dismissed for the failure to comply with the Court's order to pay the filing fee or file an application to proceed in forma pauperis, and judgment was entered accordingly. Plaintiff subsequently filed a motion for reconsideration asking the Court to vacate its dismissal of his claims, and the Court denied that motion.
Defendants argue that because the Court dismissed Plaintiff's action for his failure to comply with court orders, the dismissal was a final judgment on the merits under Federal Rule of Civil procedure 41(b). However, the dismissal order in this case indicated that the dismissal was made without prejudice. The Ninth Circuit has repeatedly held that "a dismissal without prejudice is not a decision on the merits" for the purposes of claim preclusion.
Accordingly, IT IS HEREBY RECOMMENDED that Defendants' motion for judgment on the pleadings, filed on January 9, 2017 (ECF No. 71), be DENIED.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within