Johnson v. Gregoire

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 LAUSTEVEION JOHNSON, Case No. 3:22-cv-00095-ART-CSD

4 Plaintiff, ORDER GRANTING, IN PART, AND v. DENYING, IN PART, 5 MOTION TO DISMISS AND D. GREGOIRE, et al., 6 DENYING MOTION FOR HEARING Defendants. 7 [ECF Nos. 35, 40] 8 Plaintiff Lausteveion Johnson, a Nevada prisoner, has filed a civil rights 9 complaint by an inmate. (ECF No. 6 (“Complaint”).) Currently before the Court is 10 the Defendants’ motion to dismiss the Complaint as duplicative. (ECF No. 35.) 11 Johnson responded to the motion and moved for oral argument, and the 12 Defendants replied. (ECF Nos. 37, 39, 40.) For the reasons discussed below, the 13 motion to dismiss is granted, in part, and denied, in part, and the motion for 14 hearing is denied. 15 I. Procedural history and background 16 Johnson’s Complaint in the instant case (hereinafter “Johnson I”) was 17 received by this Court on February 16, 2022. (ECF No. 1.) A screening order was 18 entered on July 25, 2022, and pursuant to the screening order, the Complaint 19 was filed on July 26, 2022. (ECF Nos. 5, 6.) Johnson I was stayed to allow Johnson 20 and the Defendants an opportunity to settle their dispute. (ECF No. 5 at 15.) 21 Johnson I was later excluded from the early mediation program, and the stay was 22 lifted. (ECF Nos. 8, 9.) 23 Johnson filed an allegedly similar complaint in a different case (hereinafter 24 “Johnson II”): Johnson v. Cornfield, et al., 3:22-cv-00108-MMD-CSD. The 25 complaint in Johnson II was received by this Court on February 28, 2022. (3:22- 26 cv-00108-MMD-CSD, ECF No. 1-1.) A screening order was entered on May 18, 27 2022, staying Johnson II to allow Johnson and the Defendants an opportunity to 28 settle their dispute. (3:22-cv-00108-MMD-CSD, ECF No. 4.) Johnson II was also 1 excluded from the early mediation program, and the stay was lifted. (3:22-cv- 2 00108-MMD-CSD, ECF No. 7.) Pursuant to the post-stay order, the complaint 3 was filed on June 10, 2022. (3:22-cv-00108-MMD-CSD, ECF No. 8.) 4 The Defendants move to dismiss the Complaint in Johnson I, arguing that 5 it is factually identical and maliciously duplicative of the complaint filed in 6 Johnson II, and ask this Court to issue a strike against Johnson. (ECF No. 35.) 7 II. Legal standard 8 This Court has “discretion to dismiss a duplicative later-filed action, to stay 9 that action pending resolution of the previously filed action, to enjoin the parties 10 from proceeding with it, or to consolidate both actions.” Adams v. Cal. Dep’t of 11 Health Servs., 487 F.3d 684, 688 (9th Cir. 2007), overruled on other grounds by 12 Taylor v. Sturgell, 553 U.S. 880 (2008). This is because “[p]laintiffs generally have 13 no right to maintain two separate actions involving the same subject matter at 14 the same time in the same court and against the same defendant.” Id. (internal 15 quotation marks omitted). “[I]n assessing whether the second action is duplicative 16 of the first, we examine whether the causes of action and relief sought, as well as 17 the parties or privies to the action, are the same.” Id. at 689. 18 “To ascertain whether successive causes of action are the same,” this Court 19 “use[s] the transaction test, developed in the context of claim preclusion. Whether 20 two events are part of the same transaction or series depends on whether they 21 are related to the same sets of facts and whether they could conveniently be tried 22 together.” Id. (internal quotation marks omitted). In applying this test, four 23 criteria are examined:

24 (1) whether rights or interests established in the prior judgment 25 would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two 26 actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same 27 transactional nucleus of facts. 28 1 Id. The last criteria is the most significant. Id. 2 III. Discussion 3 A. The allegations made in Johnson I 4 In Johnson I, Johnson sued seven defendants for events that took place at 5 Warm Springs Correctional Center (“WSCC”): Defendants Correctional Officer 6 (“C/O”) D. Gregoire, Phoenix Program Counselor Cornfield, Fiess, Caseworker V. 7 Meza, C/O R. Nerson, Sergeant C. Mahram, and NDOC Director Charles Daniels. 8 (ECF No. 6 at 1–2.) Johnson brought four claims and alleged the following facts.1 9 (Id. at 3–13.) 10 On September 21, 2021, Defendant Cornfield, Johnson’s Phoenix Program 11 counselor, threatened to have a white prison gang called the Aryan Warriors 12 assault Johnson, file a false notice of charges (“NOC”) against Johnson, get 13 Johnson removed from the Phoenix Program, and get Johnson booked on new 14 charges by sending synthetic marijuana in his name. (Id. at 3, 8.) On September 15 28, 2021, Defendant Cornfield called six Aryan Warrior inmates into his office 16 and showed them Johnson’s criminal charges to get those six inmates to assault 17 and kill Johnson. (Id. at 6, 8.) On October 5, 2021, and October 6, 2021, 18 Defendants Cornfield, Gregoire, Meza, and Feiss forced Johnson to move from a 19 bottom bunk to a top bunk, knowing he was physically unable to do so. (Id. at 9.) 20 Defendants Cornfield, Gregoire, Meza, and Fiess wrote a false NOC against 21 Johnson and removed him from the Phoenix Program. (Id.) These four retaliatory 22 actions were made because Johnson is black, is Muslim, and told Defendant 23 Cornfield that he would file a lawsuit against him.2 (Id. at 8.) Additionally, the 24 first retaliatory action was also made because Johnson told a fellow inmate who 25 had recently converted to Islam that he could wear his Islamic religious cap called

26 1These facts have been taken from the screening order in Johnson I. 27 2According to Johnson, on September 21, 2021, Johnson threatened to sue Defendant Cornfield for telling Johnson that he could not practice his religion. 28 (ECF No. 1-1 at 5.) 1 a Kufi, and the fourth retaliatory action was also made because Johnson filed an 2 emergency grievance on October 5, 2021. (Id. at 8–9.) 3 Defendants Gregoire, Cornfield, Fiess, Meza, Nerson, Mahram, and Daniels 4 had knowledge of the atrophy and arthritis in Johnson’s back and knee3 that 5 prevented him from physically being able to climb into a top bunk. (Id. at 10.) 6 Despite this, these Defendants ordered Johnson to be moved to a top bunk. (Id.) 7 Johnson attempted to climb into his newly assigned top bunk twice on October 8 5, 2021, and October 6, 2021, but he fell on both occasions, causing injuries to 9 his back, knees, hip, and legs. (Id.) Johnson submitted an emergency grievance 10 on this issue on October 5, 2021, but in response, Defendants Gregoire and 11 Cornfield filed an NOC against Johnson on October 6, 2021. (Id. at 6.) Defendants 12 Meza, Nerson, and Mahram denied the emergency grievance, ordering Johnson 13 to move to the top bunk. (Id. at 7.) Defendant Daniels failed to properly hire and 14 train staff regarding treatment of serious medical conditions, resulting in staff 15 members forcing Johnson to climb into the top bunk against his physical 16 limitations. (Id. at 10–11.) 17 Defendant Cornfield told Johnson on September 18, 2021, and September 18 21, 2021, that Johnson could not exercise his spiritual duty of instructing a 19 fellow inmate that that fellow inmate could wear his Kufi. (Id. at 12.) 20 Defendants Meza, Gregoire, and Cornfield wrote an NOC on October 6, 21 2021, and removed Johnson from the Phoenix Program because he is Muslim 22 and black. (Id. at 13.) Contrarily, Defendants Meza, Gregoire, and Cornfield did 23 not write up or remove any Christians or Caucasians from the program. (Id.) 24 Based on these allegations, Johnson brought a First Amendment 25 retaliation claim, an Eighth Amendment claim for deliberate indifference, a First 26

27 3According to Johnson, these conditions were caused from being assaulted by 12 to 15 staff members in 2012 and then being forced into solitary confinement for 28 537 days. (ECF No. 1-1 at 2–3.) 1 Amendment free exercise of religion and Religious Land Use and Institutionalized 2 Persons Act (“RLUIPA”) claim, and a Fourteenth Amendment equal protection 3 claim. (Id. at 8–13.) The Court liberally construed Johnson’s second claim as an 4 Eighth Amendment claim based on unsafe prison conditions. (ECF No. 5 at 5.) 5 B. The allegations made in Johnson II 6 In Johnson II, Johnson sued sixteen defendants for events that took place 7 at WSCC: Defendants Cornfield, Kirk Widmar, Richard Ashcraft, V. Meza, 8 Rynerson, Fernandez, Holloway, Suwe, Travis Fratis, D. Gregoire, Barrius, K. 9 Fond, Coltrin, Charles Daniels, Fiess, and Ambaker. (3:22-cv-00108-MMD-CSD, 10 ECF No. 8 at 1–3.) Johnson brought three claims and alleged the following facts.4 11 (Id. at 4–20.) 12 Defendant Cornfield, Johnson’s counselor, told Johnson that if he 13 completed the Phoenix Program, Johnson would “automatic[ally]” receive parole. 14 (Id. at 4–5.) Johnson’s failure to complete the program, by contrast, would result 15 in “an automatic denial of parole.” (Id. at 5.) On September 7, 2021, Defendant 16 Cornfield said that “there were too many Black inmates in the Phoenix Program, 17 and he didn’t like that.” (Id.) Johnson is Black; Defendant Cornfield is white. (Id.) 18 Johnson served as the imam for the Muslims in Unit 2. (Id.) Around 19 September 15, 2021, Johnson converted a white inmate named Jordan Davis to 20 Islam. (Id.) Several days later, Davis was wearing a kufi cap in accordance with 21 Johnson’s instructions. (Id.) Defendant Cornfield told Davis that Davis could not 22 wear a kufi because he was “not Black or Muslim.” (Id.) Johnson responded that 23 Davis could wear a kufi, and that Defendant Cornfield was violating the free 24 exercise clause of the RLUIPA. (Id.) 25 On September 21, 2021, Defendant Cornfield told Johnson that Johnson 26 should not have said Davis could wear a kufi. (Id.) Johnson replied, “I [ ] will sue 27

28 4These facts have been taken from the screening order in Johnson II. 1 you over th[ese] 1st Amendment[ ] and RLUIPA violations.” (Id.) In response, 2 Defendant Cornfield said that he had “rank” in the “A-Dubbs,” a white 3 supremacist prison gang, and that he could “get [Johnson] assaulted,” write him 4 up, kick him out of the Phoenix Program, cause his parole to be denied, and “send 5 spice (synthetic marijuana) in [Johnson’s] name.” (Id.) Defendant Cornfield also 6 “spoke about” breaking his supervisor’s eye socket if she “trie[d] to fire him.” (Id. 7 at 6.) He claimed to have “already researched the medical cost” of such an 8 assault—“$2,500.” (Id.) Johnson said he would “never allow that to happen,” and 9 Johnson began filing kites and grievances about Defendant Cornfield’s 10 misconduct. (Id.) 11 On September 28, 2021, Defendant Cornfield called members of the A- 12 Dubbs and another white supremacist gang into his office. (Id.) He solicited the 13 gang members to attack Johnson by showing them Johnson’s “criminal charges 14 on the computer.” (Id.) The gang members then tried to assault Johnson, but they 15 could not “move on the matter because the Black inmates . . . supported 16 [Johnson] physically and wouldn’t allow them to jump [Johnson] without [there] 17 being an all-out riot.” (Id.) 18 Defendant Cornfield “came up with another tactic” after he failed to get the 19 gang members to assault Johnson. (Id.) Specifically, Defendant Cornfield solicited 20 Johnson’s cellmate Harrison to assault him. (Id.) Harrison agreed to assault 21 Johnson on the condition that the two remain cellmates after the assault. (Id. at 22 6–7.) 23 On October 5, 2021, Defendants Gregoire, Cornfield, and Meza ordered 24 Johnson “to move from the bottom bunk to the top bunk” despite knowing that 25 Johnson had been assigned to the bottom bunk due to a “sever[e] back and knee 26 injury.” (Id. at 6.) Johnson repeatedly told these Defendants that Johnson was 27 “physically incapable of climbing to the top bunk because of his physical 28 disability.” (Id.) Their response: “We know that you are assigned to the bottom 1 bunk, but we’re now assigning you to the top bunk.” (Id. at 6–7.) Johnson filed a 2 grievance about the issue on October 5. (Id. at 7.) Defendants Rynerson, Gregoire, 3 and Cornfield then told Johnson, “Now that you grieved the issue, if you don’t get 4 on the top bunk, [you will] be written up and terminated from the Phoenix 5 Program and [have your] parole denied.” (Id.) Johnson subsequently tried to climb 6 to the top bunk twice, falling “violently to the concrete floor” and injuring himself. 7 (Id.) 8 On the morning of October 6, 2021, Harrison told Johnson that Defendant 9 Cornfield had ordered him to assault Johnson. (Id.) That same day, Johnson filed 10 a grievance about the issue. (Id.) Johnson then asked Hilldabrand, a caseworker, 11 to move him out of his cell. (Id.) Hilldabrand agreed, giving Johnson a bottom- 12 bunk assignment in a new cell later that day. (Id.) That afternoon, Defendants 13 Cornfield, Gregoire, and Meza wrote Johnson up for “not physically being able to 14 climb to the top bunk on 10/5/21.” (Id.) This caused Johnson to be “terminated 15 from the Phoenix Program.” (Id.) 16 Defendant Fratis served Johnson with the notice of charges on October 24, 17 2021. (Id. at 8.) At the hearing, Johnson showed Defendant Fratis his medical 18 records and a lawsuit in which “the federal court ruled in [Johnson’s] favor 19 regard[ing] his medical disability . . . and not being able to get on the top bunk.” 20 (Id.) Concluding that these records showed the NDOC had “been aware of this 21 issue for years,” Fratis “dismissed” the charges as “baseless.” (Id.) As a result of 22 the dismissal, Johnson was reinstated to the Phoenix Program on October 26, 23 2021. (Id.) 24 After the dismissal, Defendants Cornfield and Gregoire asked Johnson, 25 “How did your [notice of charges] get dismissed[?] It [ ] was not supposed to get 26 dismissed.” (Id.) Defendant Cornfield then had staff members “berate” Defendant 27 Fratis for dismissing the charges. (Id.) 28 On November 10, 2021, Defendants Cornfield, Gregoire, Meza, Ashcraft, 1 Fiess, Rynerson, Fernandez, Holloway, and Suwe told Johnson that he needed 2 “to move from the bottom bunk [in his current cell] to the top bunk” in a new cell 3 with Harrison. (Id.) These officials knew that Harrison had “promised to assault 4 [Johnson] if they were cellmates.” (Id.) Indeed, Johnson told them that they could 5 not “force [him] to move into a cell with someone to be sexually assaulted.” (Id. at 6 9.) Defendant Gregoire responded, “You have to go into the cell.” (Id.) 7 At this point, Johnson spoke with Defendants Meza and Ashcraft, 8 informing them about “the top bunk medical issue and [the] threat of sexual 9 assault by Harrison.” (Id.) During this conversation, Defendant Meza said, “No! I 10 will not accommodate you. You have to face your fears and move into the cell 11 with Harrison because you never kited medical on this issue to date!” (Id.) When 12 Johnson showed Defendant Meza the kites he had submitted about “falling from 13 the top bunk,” Defendant Meza replied, “I don’t care! Face your fears . . . and 14 move into the room with Harrison. I [ ] won’t accommodate you because you filed 15 a lawsuit on this issue (2:19-cv-00232) and because you filed grievances against 16 me [ ] and staff [ ] weeks ago. So move into the cell with Harrison or I’ll write you 17 up, kick you out of the program[,] and send you to the hole.” (Id.) Johnson stated 18 that he would file grievances about these issues; Defendant Meza said, “It’s not 19 grievable.” (Id. at 9–10.) 20 Johnson returned to his unit, obtained an emergency grievance from 21 Defendant Gregoire, and filed the grievance at 9:52 a.m. on November 10, 2021. 22 (Id. at 10.) Defendant Gregoire then said, “I’m[ ] going to write you up for filing 23 this fucking grievance you fucking [n-word]!” (Id.) Defendant Gregoire proceeded 24 to call Johnson the n-word from 9:55 a.m. “to approximately 11:30 a.m.” (Id.) 25 Later that day, Defendants Rynerson, Fernandez, Holloway, and Suwe 26 came to Johnson’s cell and “discussed having to move to [the new cell] with 27 inmate Harrison.” (Id.) Johnson told them he could neither access the top bunk 28 nor share a cell with Harrison. (Id.) Johnson added that “he had been written up 1 for this issue weeks before,” and the charges were “dismissed as baseless.” (Id.) 2 Johnson gave these Defendants the dismissed notice of charges, which they then 3 took up to “administration” to inquire about why Defendants Gregoire, Meza, and 4 Cornfield were trying to “write [Johnson] up for an issue that he was just written 5 up on and dismissed.” (Id.) Defendants Rynerson, Fernandez, Holloway, and 6 Suwe returned, informing Johnson that Defendants Ashcraft, Meza, and Fond 7 believed the new notice of charges would “not turn out the same way as the last 8 one” because Johnson had “already filed a lawsuit on this issue.” (Id. at 10–11.) 9 Defendants Rynerson, Fernandez, Holloway, and Suwe then ordered Johnson to 10 move into the new cell with Harrison or be “written up[,] sent to the hole[,] and 11 kicked out of the Phoenix Program.” (Id. at 11.) Johnson refused to move in with 12 Harrison. (Id.) As a result, Defendant Gregoire wrote Johnson up, causing 13 Johnson to be sent to the hole and kicked out of the program. (Id.) Defendant 14 Fratis served the notice of charges on Johnson, saying that Defendant Ashcraft 15 had told him “not to even consider dismissing [the charges] because we have to 16 find you guilty.” (Id.) 17 Defendant Barrius was Johnson’s caseworker while Johnson was in the 18 hole. (Id.) Johnson asked Defendant Barrius if Johnson could return to the 19 Phoenix Program or, alternatively, join the Trust Program, a drug treatment 20 program at Southern Desert Correctional Center. (Id.) Defendant Barrius told 21 Johnson that (i) he could not return to the Phoenix Program because “Harrison 22 threatened to sexually assault [him],” and (ii) he could not participate in the Trust 23 Program because Defendants Ambaker and Fiess had said his inability to “climb 24 [to] the top bunk” disqualified him. (Id. at 11–12.) Johnson responded, “This is 25 retaliation! I need a grievance[.]” (Id. at 12.) Defendant Barrius said the issue was 26 not “grievable.” (Id.) 27 On December 2, 2021, Johnson was transferred from WSCC to Northern 28 Nevada Correctional Center. (Id.) Two months later, on February 3, 2022, the 1 latest notice of charges against Johnson was “dismissed” as “baseless.” (Id.) 2 Based on these allegations, Johnson brought a First Amendment 3 retaliation claim, an Eighth Amendment claim for deliberate indifference, and a 4 Fourteenth Amendment equal protection claim. (Id. at 13, 17, 19.) The Court 5 liberally construed Johnson’s second claim as an Eighth Amendment claim based 6 on unsafe prison conditions. (3:22-cv-00108-MMD-CSD, ECF No. 4 at 7–8.) 7 C. Comparison of the causes of action in Johnson I and Johnson II 8 1. First Amendment retaliation claims 9 In Johnson I, Johnson alleged that (1) in response to Johnson threatening 10 to sue Defendant Cornfield, Defendant Cornfield threatened to have the Aryan 11 Warriors assault Johnson, to file a false NOC against Johnson, to get Johnson 12 removed from the Phoenix Program, and to get Johnson booked on new charges 13 by sending synthetic marijuana in his name; (2) in response to Johnson 14 threatening to sue Defendant Cornfield, Defendant Cornfield tried to get inmates 15 to assault and kill Johnson; (3) in response to Johnson threatening to sue 16 Defendants Cornfield, Defendants Cornfield, Gregoire, Meza, and Feiss forced 17 Johnson to move to a top bunk; and (4) in response to Johnson threatening to 18 sue Defendants Cornfield and Johnson filing an emergency grievance, 19 Defendants Gregoire, Meza, and Fiess wrote a false NOC against Johnson and 20 removed him from the Phoenix Program. (ECF No. 6 at 8–9.) 21 In Johnson II, Johnson alleged that (1) in response to Johnson threatening 22 to sue Defendant Cornfield, Defendant Cornfield tried to have Johnson assaulted; 23 (2) in response to Johnson filing a grievance complaining about his top bunk 24 assignment, Defendants Rynerson, Gregoire, and Cornfield threatened to write 25 Johnson up and cause his parole application to be denied; (3) in response to 26 Johnson filing lawsuits and grievances about the top-bunk issue and Harrison’s 27 threats, Defendant Meza threatened to write Johnson up and send him to the 28 hole; (4) in response to Johnson filing an emergency grievance about his 1 encounter with Defendants Meza and Ashcraft, Defendant Gregoire wrote 2 Johnson up. (3:22-cv-00108-MMD-CSD, ECF No. 8 at 5–11.) 3 In both Johnson I and Johnson II, Johnson alleges the following First 4 Amendment retaliation claim: in response to Johnson threatening to sue 5 Defendant Cornfield, Defendant Cornfield tried to have Johnson assaulted. In his 6 response to the motion to dismiss, Johnson admits that this claim is duplicative 7 and should be dismissed. (ECF No. 37 at 5.) As such, the portion of claim 1(a) 8 alleging that Defendant Cornfield threatened to have the Aryan Warriors assault 9 Johnson and claim 1(b) are dismissed with prejudice. The remainder of the claims 10 in Johnson I and Johnson II do not share the same facts. 11 2. Eighth Amendment claims 12 In Johnson I, Johnson alleged that Defendants Gregoire, Cornfield, Meza, 13 Nerson, and Mahram assigned Johnson to a top bunk on October 5, 2021, and 14 October 6, 2021.5 (ECF No. 6 at 10–11.) In Johnson II, Johnson alleged that (1) 15 Defendant Cornfield recruited other inmates to attack Johnson, (2) Defendants 16 Gregoire, Cornfield, and Meza assigned Johnson to a top bunk on November 10, 17 2021, and (3) several Defendants ordered Johnson to move into a new cell with 18 Harrison.6 (3:22-cv-00108-MMD-CSD, ECF No. 8 at 5–7, 17–18.) 19 Although the single Eighth Amendment claim based on unsafe prison 20 conditions in Johnson I is similar to the second Eighth Amendment claim based 21 on unsafe prison conditions in Johnson II, the claims arise out of instances 22 occurring on different dates: October 5, 2021, in Johnson I and November 10, 23 2021, in Johnson II. Indeed, in Johnson II, Johnson references the prior incident 24 from Johnson I, further supporting the conclusion that these claims are not the 25 same: “this same order caused Plaintiff to violently fall to the concrete floor

26 5The Court dismissed Defendants Fiess and Daniels from this claim. (ECF No. 5 27 at 9–10.) 6The Court found the third allegation to be insufficient to support a colorable 28 claim. (3:22-cv-00108-MMD-CSD, ECF No. 4 at 13.) 1 repeatedly injuring himself. He was still injured on 11/10/21 due to these 2 defendant’s cause [sic] him injuries on 10/5/21.” (Id. at 17.) Moreover, the claim 3 in Johnson I is brought against two additional defendants than the similar claim 4 in Johnson II. Consequently, this Court finds that the claims in Johnson I and 5 Johnson II do not share the same facts. 6 3. Fourteenth Amendment equal protection claims 7 In Johnson I, Johnson alleged that on October 6, 2021, Defendants Meza, 8 Gregoire, and Cornfield wrote an NOC against him and removed him from the 9 Phoenix Program because he is Muslim and black. (ECF No. 6 at 13.) In Johnson 10 II, Johnson alleged that on November 10, 2021, Defendant Cornfield tried to have 11 Johnson assaulted and assigned to a top bunk because he is black, Defendant 12 Gregoire sent Johnson to the hole for being black, Johnson was targeted for an 13 attempted assault because he is a Muslim, and Defendant Cornfield told another 14 inmate that he could not wear a kufi because he was “not Black or Muslim.” 15 (3:22-cv-00108-MMD-CSD, ECF No. 8 at 5–11, 19–20.)7 The specific Fourteenth 16 Amendment equal protection claim in Johnson I was not raised in Johnson’s 17 Fourteenth Amendment equal protection in Johnson II. 18 4. RLUIPA 19 In Johnson I, Johnson alleged that Defendant Cornfield told him that he 20 “could not exercise his spiritual duty by instructing [a fellow inmate] that [that 21 fellow inmate] could wear his Kuffi.” (ECF No. 6 at 12.) Although Johnson 22 included these same factual allegations in Johnson II (see 3:22-cv-00108-MMD- 23 CSD, ECF No. 8 at 5), he did not bring a RLUIPA claim in Johnson II. Indeed, 24 rather than including these factual allegations to support a RLUIPA claim, these 25 factual allegations were included in Johnson II to show the catalyst for one of 26 Johnson’s retaliation claims. 27 7This Court dismissed Johnson’s last two theories without prejudice. (ECF No. 4 28 at 15.) 1 D. Comparison of the parties/privies in Johnson I and Johnson II 2 Excluding the defendants that were dismissed, Johnson sued Gregoire, 3 Cornfield, and Meza in both Johnson I and Johnson II. However, importantly, 4 Defendants Nerson8 and Mahram are included in Johnson I but not Johnson II. 5 E. Conclusion 6 It is certainly true, as Defendants argue, that the gravamen of Johnson I 7 and Johnson II concern Johnson’s participation in the Phoenix Program, his bunk 8 assignment, assaults by other inmates, getting retaliatory charges filed against 9 him, and issues surrounding his religion. However, a careful review of the 10 Complaint in Johnson I and the complaint in Johnson II demonstrates that—with 11 the exception of the retaliation claim against Defendant Cornfield—the facts of 12 Johnson’s claims do not truly overlap, making the underlying fundamental 13 identity of the cases different. Cf. Mendoza v. Amalgamated Transit Union 14 International, 30 F.4th 879, 887 (9th Cir. 2022) (“The fact that Mendoza II involves 15 somewhat different legal theories and a somewhat broader range of related 16 conduct and damages [than Mendoza I] does not alter the underlying 17 fundamental identity of the suits.”). Thus, even though the defendants in Johnson 18 I and Johnson II were nearly identical, the Court finds that Johnson I is not 19 entirely duplicative of Johnson II, so a dismissal of the entirety of the Complaint 20 in Johnson I and the giving of a strike are not warranted. 21 Further, although the Complaint in Johnson I was filed after the complaint 22 in Johnson II—July 26, 2022, versus June 10, 2022—Johnson II was commenced 23 after Johnson I—February 28, 2022, versus February 16, 2022. Accordingly, the 24 Court notes, without deciding, that the Defendants should have filed their motion 25 to dismiss in Johnson II, the “later-filed action.” Adams, 487 F.3d at 688. 26 Finally, Johnson has filed a motion requesting oral argument on the motion 27 8The Court suspects, however, that Defendant Nerson in Johnson I and Defendant 28 Rynerson in Johnson II may be the same person. 1 || to dismiss. (ECF No. 40.) The Court declines to hold an oral argument, 2 || determining that the briefs are sufficient to rule on the motion to dismiss. 3 || IV. Conclusion 4 It is therefore ordered that Defendants’ motion to dismiss [ECF No. 35] is 5 || granted, in part, and denied, in part, as follows: the portion of claim 1(a) alleging 6 || that Defendant Cornfield threatened to have the Aryan Warriors assault Johnson 7 || and claim 1(b) are dismissed with prejudice. 8 It is further ordered that Plaintiffs motion for hearing [ECF No. 40] is 9 || denied. 10 DATED THIS 168 day of November 2022. 11 en Ares Vaseed? 13 ANNE R. TRAUM 4 UNITED STATES DISTRICT JUDGE

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