1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOHNNY ANDREW MOORE, 11 Case No. 17-03696 BLF (PR) Plaintiff, 12 ORDER GRANTING MOTION FOR v. SCREENING; OF DISMISSAL 13 WITH LEAVE TO AMEND
14 S. HATTON, et al., 15 Defendants.
16 (Docket No. 2)
17 18 Plaintiff, a California inmate, filed a pro se complaint in Monterey County Superior 19 Court, which Defendants removed to this Court under 28 U.S.C. §§ 1441(a), 1446(b). Dkt. 20 No. 1. Defendants assert that the Court has original subject-matter jurisdiction over this 21 action under 28 U.S.C. § 1331 because Plaintiff’s complaint alleges violations of the 22 Eighth Amendment under 42 U.S.C. § 1983, as well as a First Amendment retaliation 23 claim. Id. at 2. Defendants also assert that Plaintiff’s remaining causes of action fall 24 within federal supplemental jurisdiction under 28 U.S.C. § 1367. Id. Defendants request 25 the complaint be screened under 28 U.S.C. 1915A(a). Dkt. No. 2. The request for a 26 screening is GRANTED. For the reasons discussed below, complaint is DISMISSED with 27 leave to amend. 1 DISCUSSION 2 A. Plaintiff’s Claims 3 Plaintiff names the following Defendants, who are officials employed by the 4 California Department of Corrections and Rehabilitation (“CDCR”): (1) S. Hatton, Warden 5 of CTF; (2) K. Hoffman, Associate Warden of CTF; (3) and M. Atchley, Chief Deputy 6 Warden of CTF. Dkt. No. 1 at 4. Plaintiff claims that CTF began construction of a new 7 building between the interfaith chapels “without a memorandum or study release made to 8 the general population that the construction could or would expose inmates to 9 contaminants in the ground and foundation, which can become airborn[e] pathogens such 10 as dirt, dust, concrete, wood, asbestos, metal, paint, glass during the construction.” Id. 11 Plaintiff claims the construction started before April 2016, when he first alerted 12 Defendants to the “potential of exposing inmates to toxic materials.” Id. at 3. Plaintiff 13 claims that shortly after construction started, he began to hear of inmates getting sick from 14 valley fever, a fungus that attacks the lung and body organs. Id. at 4. On April 17, 2017, 15 he experienced a viral infection and was treated for dry cough, aches and pain, headaches, 16 runny nose and watery eyes. Id. at 5. Plaintiff claims that he is now exposed to valley 17 fever and is being treated for it, “because Defendants failed in the duty to provide basic 18 humane conditions of confinement, and this condition is harmful to his health and body.” 19 Id. at 5-6. Based on these allegations, Plaintiff claims Defendants were deliberately 20 indifferent to his health and safety. Id. at 6. 21 Plaintiff also claims intentional infliction of emotional distress based on retaliatory 22 actions by Defendants who used their subordinates to “confiscate/loss/or destroy 23 documents pertaining to this case as reprisal for filing suite.” Id. at 8. Specifically, 24 Plaintiff claims that the “I.S.U.” conducted a cell search on May 19, 2017, during which 25 they went through all his documents and paperwork, and again on July 21, 2017, but this 26 time “to raid, search, intimidate, harass, and remove all legal documents, legal material, 1 fearful for my safety, well-being, and health at this prison.” Id. at 8. Plaintiff claims that 2 he has mental health issues, and that the July 21st incident “raised my stress level to 3 uncontrollable feelings of hearing voices, suicidal thoughts, depression, and wanting to 4 hurt myself.” Id. He was later seen by a “psyc doctor [sic]” who decided to move Plaintiff 5 to a crisis bed. Id. 6 B. Analysis 7 Plaintiff’s first claim of deliberate indifference to his health and safety must be 8 dismissed under res judicata. Under res judicata, a final judgment on the merits bars 9 further claims by parties or their privies based on the same cause of action. See Montana 10 v. United States, 440 U.S. 147, 153 (1979). Federal law governs the preclusive effect of a 11 federal case decided by a federal court. See Allen v. City of Los Angeles, 92 F.3d 842, 849 12 (9th Cir. 1996). This court may examine the preclusive effect of a prior judgment sua 13 sponte. See Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); McClain v. Apodaca, 14 793 F.2d 1031, 1032-33 (9th Cir. 1986). 15 In a prior case before this Court, Plaintiff raised the same Eighth Amendment 16 deliberate indifference claim against Defendants Hatton, Hoffman, and Atchley. See 17 Moore v. Hatton, et al., Case No. 17-03696 BLF (PR), Dkt. No. 1. In that matter, the 18 Court granted Defendants’ motion to dismiss the claim under Rule 12(b)(6) of the Federal 19 Rules of Civil Procedure because the complaint contained insufficient facts from which the 20 reasonable inference could be drawn that Defendants are liable for the misconduct alleged. 21 Id., Dkt. No. 32 at 9. The claim was dismissed with prejudice and judgment was entered in 22 favor of Defendants. Id. at 10; Dkt. No. 33. Accordingly, because the instant complaint 23 contains the same cause of action against the same Defendants as in the prior action in 24 which there was a final judgment on the merits, this Eighth Amendment claim is barred by 25 res judicata. See Montana, 440 U.S. at 153. 26 With respect to Plaintiff’s retaliation claim and the related state law claim for 1 amend. “Within the prison context, a viable claim of First Amendment retaliation entails 2 five basic elements: (1) An assertion that a state actor took some adverse action against an 3 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 4 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 5 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 6 Cir. 2005) (footnote omitted). First of all, Plaintiff makes only a conclusory allegation that 7 Defendants used their subordinates to take adverse action against him. See supra at 2. He 8 must allege specific facts as to each Defendant’s individual conduct to satisfy the first 9 element of a retaliation claim. Furthermore, Plaintiff fails to plead the fifth element, i.e., 10 that the cell searches did not reasonably advance a legitimate correctional goal. Plaintiff 11 will be granted leave to file an amended complaint to attempt to allege sufficient facts to 12 state a retaliation claim. In the amended complaint, Plaintiff may reallege his claim for 13 intentional infliction of emotional distress. However, if Plaintiff fails to state a retaliation 14 claim in the amended complaint, the Court will decline to exercise supplemental 15 jurisdiction over any remaining state law claims and dismiss them to pursuing them in state 16 court. 17 18 CONCLUSION 19 For the foregoing reasons, the Court orders as follows: 20 1. Defendants’ request for screening is GRANTED. Dkt. No. 2. 21 2.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JOHNNY ANDREW MOORE, 11 Case No. 17-03696 BLF (PR) Plaintiff, 12 ORDER GRANTING MOTION FOR v. SCREENING; OF DISMISSAL 13 WITH LEAVE TO AMEND
14 S. HATTON, et al., 15 Defendants.
16 (Docket No. 2)
17 18 Plaintiff, a California inmate, filed a pro se complaint in Monterey County Superior 19 Court, which Defendants removed to this Court under 28 U.S.C. §§ 1441(a), 1446(b). Dkt. 20 No. 1. Defendants assert that the Court has original subject-matter jurisdiction over this 21 action under 28 U.S.C. § 1331 because Plaintiff’s complaint alleges violations of the 22 Eighth Amendment under 42 U.S.C. § 1983, as well as a First Amendment retaliation 23 claim. Id. at 2. Defendants also assert that Plaintiff’s remaining causes of action fall 24 within federal supplemental jurisdiction under 28 U.S.C. § 1367. Id. Defendants request 25 the complaint be screened under 28 U.S.C. 1915A(a). Dkt. No. 2. The request for a 26 screening is GRANTED. For the reasons discussed below, complaint is DISMISSED with 27 leave to amend. 1 DISCUSSION 2 A. Plaintiff’s Claims 3 Plaintiff names the following Defendants, who are officials employed by the 4 California Department of Corrections and Rehabilitation (“CDCR”): (1) S. Hatton, Warden 5 of CTF; (2) K. Hoffman, Associate Warden of CTF; (3) and M. Atchley, Chief Deputy 6 Warden of CTF. Dkt. No. 1 at 4. Plaintiff claims that CTF began construction of a new 7 building between the interfaith chapels “without a memorandum or study release made to 8 the general population that the construction could or would expose inmates to 9 contaminants in the ground and foundation, which can become airborn[e] pathogens such 10 as dirt, dust, concrete, wood, asbestos, metal, paint, glass during the construction.” Id. 11 Plaintiff claims the construction started before April 2016, when he first alerted 12 Defendants to the “potential of exposing inmates to toxic materials.” Id. at 3. Plaintiff 13 claims that shortly after construction started, he began to hear of inmates getting sick from 14 valley fever, a fungus that attacks the lung and body organs. Id. at 4. On April 17, 2017, 15 he experienced a viral infection and was treated for dry cough, aches and pain, headaches, 16 runny nose and watery eyes. Id. at 5. Plaintiff claims that he is now exposed to valley 17 fever and is being treated for it, “because Defendants failed in the duty to provide basic 18 humane conditions of confinement, and this condition is harmful to his health and body.” 19 Id. at 5-6. Based on these allegations, Plaintiff claims Defendants were deliberately 20 indifferent to his health and safety. Id. at 6. 21 Plaintiff also claims intentional infliction of emotional distress based on retaliatory 22 actions by Defendants who used their subordinates to “confiscate/loss/or destroy 23 documents pertaining to this case as reprisal for filing suite.” Id. at 8. Specifically, 24 Plaintiff claims that the “I.S.U.” conducted a cell search on May 19, 2017, during which 25 they went through all his documents and paperwork, and again on July 21, 2017, but this 26 time “to raid, search, intimidate, harass, and remove all legal documents, legal material, 1 fearful for my safety, well-being, and health at this prison.” Id. at 8. Plaintiff claims that 2 he has mental health issues, and that the July 21st incident “raised my stress level to 3 uncontrollable feelings of hearing voices, suicidal thoughts, depression, and wanting to 4 hurt myself.” Id. He was later seen by a “psyc doctor [sic]” who decided to move Plaintiff 5 to a crisis bed. Id. 6 B. Analysis 7 Plaintiff’s first claim of deliberate indifference to his health and safety must be 8 dismissed under res judicata. Under res judicata, a final judgment on the merits bars 9 further claims by parties or their privies based on the same cause of action. See Montana 10 v. United States, 440 U.S. 147, 153 (1979). Federal law governs the preclusive effect of a 11 federal case decided by a federal court. See Allen v. City of Los Angeles, 92 F.3d 842, 849 12 (9th Cir. 1996). This court may examine the preclusive effect of a prior judgment sua 13 sponte. See Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993); McClain v. Apodaca, 14 793 F.2d 1031, 1032-33 (9th Cir. 1986). 15 In a prior case before this Court, Plaintiff raised the same Eighth Amendment 16 deliberate indifference claim against Defendants Hatton, Hoffman, and Atchley. See 17 Moore v. Hatton, et al., Case No. 17-03696 BLF (PR), Dkt. No. 1. In that matter, the 18 Court granted Defendants’ motion to dismiss the claim under Rule 12(b)(6) of the Federal 19 Rules of Civil Procedure because the complaint contained insufficient facts from which the 20 reasonable inference could be drawn that Defendants are liable for the misconduct alleged. 21 Id., Dkt. No. 32 at 9. The claim was dismissed with prejudice and judgment was entered in 22 favor of Defendants. Id. at 10; Dkt. No. 33. Accordingly, because the instant complaint 23 contains the same cause of action against the same Defendants as in the prior action in 24 which there was a final judgment on the merits, this Eighth Amendment claim is barred by 25 res judicata. See Montana, 440 U.S. at 153. 26 With respect to Plaintiff’s retaliation claim and the related state law claim for 1 amend. “Within the prison context, a viable claim of First Amendment retaliation entails 2 five basic elements: (1) An assertion that a state actor took some adverse action against an 3 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled 4 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably 5 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th 6 Cir. 2005) (footnote omitted). First of all, Plaintiff makes only a conclusory allegation that 7 Defendants used their subordinates to take adverse action against him. See supra at 2. He 8 must allege specific facts as to each Defendant’s individual conduct to satisfy the first 9 element of a retaliation claim. Furthermore, Plaintiff fails to plead the fifth element, i.e., 10 that the cell searches did not reasonably advance a legitimate correctional goal. Plaintiff 11 will be granted leave to file an amended complaint to attempt to allege sufficient facts to 12 state a retaliation claim. In the amended complaint, Plaintiff may reallege his claim for 13 intentional infliction of emotional distress. However, if Plaintiff fails to state a retaliation 14 claim in the amended complaint, the Court will decline to exercise supplemental 15 jurisdiction over any remaining state law claims and dismiss them to pursuing them in state 16 court. 17 18 CONCLUSION 19 For the foregoing reasons, the Court orders as follows: 20 1. Defendants’ request for screening is GRANTED. Dkt. No. 2. 21 2. Plaintiff’s Eighth Amendment deliberate indifference claim is DISMISSED 22 as barred by res judicata. 23 3. The First Amendment retaliation claim is DISMISSED with leave to 24 amend. Within twenty-eight (28) days from the date this order is filed, Plaintiff shall file 25 an amended complaint using the court’s form complaint to attempt to state sufficient facts 26 to state a First Amendment retaliation claim. The amended complaint must include the 1 |} the words “AMENDED COMPLAINT” on the first page. Plaintiff must answer all the 2 |} questions on the form in order for the action to proceed. Plaintiff is reminded that the 3 || amended complaint supersedes the original, and Plaintiff may not make references to the 4 || original complaint. Claims not included in the amended complaint are no longer claims 5 || and defendants not named in an amended complaint are no longer defendants. See Ferdik 6 || v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992),. 7 Failure to respond in accordance with this order by filing an amended 8 || complaint in the time provided will result in the dismissal of this action without 9 || prejudice and without further notice to Plaintiff. 10 4. In the alternative, Plaintiff may file notice in the same time provided above 11 that he wishes to strike all the federal claims from this action and have the matter 2 remanded back to state court to pursue the sole state law claim for intentional infliction of E 13 emotional distress. S 14 This order terminates Docket No. 2. 3 15 IT IS SO ORDERED. ; 2 16 Dated: _June 7, 2020 kom mcr) BETH LABSON FREEMAN = "7 United States District Judge Z 18 19 20 21 22 23 24 25 26 27 □□□□□□□□□□□□□□□□□□□□□□□□ dwt