1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY EUGENE HOWARD, No. 2:19-cv-02062-KJM-CKD P 12 Plaintiff, 13 v. ORDER AND 14 ARYAD, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s second amended 19 complaint raising excessive force claims against defendants Williamson, Moltzen, Bookout, and 20 Wuest and failure to protect claims against defendants Williamson, Bookout, and Wuest, all in 21 violation of the Eighth Amendment. ECF No. 18 (screening order). The events giving rise to this 22 action occurred at California State Prison-Sacramento on November 1, 2013. ECF No. 17 23 (second amended complaint). Currently pending before the court is defendants’ motion to 24 dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because plaintiff’s 25 claims are barred by the statute of limitations and res judicata. ECF No. 33. Plaintiff filed an 26 opposition to the motion and defendants have filed a reply. ECF Nos. 41, 42. Accordingly, the 27 motion has been fully briefed. For the reasons explained in further detail below, the undersigned 28 recommends granting defendants’ motion. 1 I. Motion to Dismiss 2 In their motion to dismiss, defendants assert that based on the face of the second amended 3 complaint, plaintiff’s claims are barred by the relevant statute of limitations and, moreover, these 4 claims have already been determined to be time-barred in plaintiff’s prior case of Howard v. 5 Williamson, et al., Case No. 2:16-cv-01200-TLN-KJN (E.D. Cal.) (hereinafter referred to as 6 “Howard I”). Defendants request that the court take judicial notice of the pleadings filed in 7 Howard I, the Findings and Recommendations to dismiss the action based on the statute of 8 limitations, and the final order and judgment which adopted these recommendations on March 30, 9 2018. ECF No. 33-2. As a result, defendants request that the instant action be dismissed with 10 prejudice. ECF No. 33-1 at 12. 11 In opposition to the motion to dismiss, plaintiff argues that this action is not untimely 12 because he needed time to exhaust his administrative remedies and because he believed he was in 13 imminent danger at the time that he filed it. ECF No. 41. To the extent that the purpose of the 14 statute of limitations is to provide notice to defendants of the claims, plaintiff argues that his 15 administrative grievances provided sufficient notice. Plaintiff only addresses his prior case of 16 Howard I as it relates to the issue of the exhaustion of his administrative remedies and not the 17 statute of limitations. ECF No. 41 at 2. 18 By way of reply, defendants cite to the relevant court documents in Howard I that 19 demonstrate that plaintiff’s prior case was proceeding on the same excessive force claims at issue 20 in the present case and that it was not voluntarily dismissed by plaintiff. ECF No. 42 at 2. 21 Rather, the court granted defendants’ motion for summary judgment based on the statute of 22 limitations and judgment was entered in favor of defendants. ECF No. 42 at 2-3. Therefore, 23 plaintiff’s arguments regarding the exhaustion of his administrative remedies are irrelevant as 24 Howard I was not decided on that basis. Id. at 3. 25 II. Legal Standards 26 A. Rule 12(b)(6) Motion 27 In considering a motion to dismiss, the court must accept as true the allegations of the 28 complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), 1 construe the pleading in the light most favorable to the party opposing the motion, and resolve all 2 doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The court will 3 “‘presume that general allegations embrace those specific facts that are necessary to support the 4 claim.’” National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994), quoting 5 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, pro se pleadings are held to 6 a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 7 (1972). 8 In ruling on a motion to dismiss, the court may consider facts established by exhibits 9 attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 10 The court may also consider facts which may be judicially noticed, Mullis v. United States 11 Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including 12 pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 13 F.2d 1279, 1282 (9th Cir. 1986). For this reason, the court will grant defendants’ request for 14 judicial notice of the pleadings and orders issued in Howard I. 15 B. Issue Preclusion 16 Issue preclusion bars “successive litigation of an issue of fact or law actually litigated and 17 resolved in a valid court determination essential to the prior judgment, whether or not the issue 18 arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001). 19 Relitigation of the same issue is precluded where “(1) the issue necessarily decided at the 20 previous proceeding is identical to the one which is sought to be relitigated; (2) the first 21 proceeding ended with a final judgment on the merits; and (3) the party against whom issue 22 preclusion is asserted was a party or in privity with a party at the first proceeding.” Paulo v. 23 Holder, 669 F.3d 911, 917 (9th Cir. 2011) (quoting Hydranautics v. FilmTec Corp., 204 F.3d 880, 24 885 (9th Cir. 2000)). 25 III. Analysis 26 The court must first determine whether the issue raised in the present action concerning 27 the statute of limitations is identical to an issue that has already been litigated in a prior 28 proceeding. A review of the Findings and Recommendations issued on November 7, 2017 in 1 Howard I demonstrates that the statute of limitations on plaintiff’s excessive force claims from 2 November 1, 2013 has already been litigated. See ECF No. 36 in Howard v. Williamson, et al., 3 Case No. 2:16-cv-01200-TLN-KJN (E.D. Cal.), adopted by ECF No. 43 (March 30, 2018). In 4 Howard I, the court determined that plaintiff’s complaint was barred by the statute of limitations 5 after determining that plaintiff was not entitled to any tolling. Id. Plaintiff’s argument that the 6 case was resolved based on his failure to exhaust administrative remedies is not supported by the 7 record. Therefore, the court finds that the first factor of issue preclusion has been satisfied. 8 Secondly, the prior proceeding resulted in a final judgment being entered. In Howard I, 9 final judgment in favor of defendants was entered on March 30, 2018. See ECF No. 44 in 10 Howard v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY EUGENE HOWARD, No. 2:19-cv-02062-KJM-CKD P 12 Plaintiff, 13 v. ORDER AND 14 ARYAD, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on plaintiff’s second amended 19 complaint raising excessive force claims against defendants Williamson, Moltzen, Bookout, and 20 Wuest and failure to protect claims against defendants Williamson, Bookout, and Wuest, all in 21 violation of the Eighth Amendment. ECF No. 18 (screening order). The events giving rise to this 22 action occurred at California State Prison-Sacramento on November 1, 2013. ECF No. 17 23 (second amended complaint). Currently pending before the court is defendants’ motion to 24 dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure because plaintiff’s 25 claims are barred by the statute of limitations and res judicata. ECF No. 33. Plaintiff filed an 26 opposition to the motion and defendants have filed a reply. ECF Nos. 41, 42. Accordingly, the 27 motion has been fully briefed. For the reasons explained in further detail below, the undersigned 28 recommends granting defendants’ motion. 1 I. Motion to Dismiss 2 In their motion to dismiss, defendants assert that based on the face of the second amended 3 complaint, plaintiff’s claims are barred by the relevant statute of limitations and, moreover, these 4 claims have already been determined to be time-barred in plaintiff’s prior case of Howard v. 5 Williamson, et al., Case No. 2:16-cv-01200-TLN-KJN (E.D. Cal.) (hereinafter referred to as 6 “Howard I”). Defendants request that the court take judicial notice of the pleadings filed in 7 Howard I, the Findings and Recommendations to dismiss the action based on the statute of 8 limitations, and the final order and judgment which adopted these recommendations on March 30, 9 2018. ECF No. 33-2. As a result, defendants request that the instant action be dismissed with 10 prejudice. ECF No. 33-1 at 12. 11 In opposition to the motion to dismiss, plaintiff argues that this action is not untimely 12 because he needed time to exhaust his administrative remedies and because he believed he was in 13 imminent danger at the time that he filed it. ECF No. 41. To the extent that the purpose of the 14 statute of limitations is to provide notice to defendants of the claims, plaintiff argues that his 15 administrative grievances provided sufficient notice. Plaintiff only addresses his prior case of 16 Howard I as it relates to the issue of the exhaustion of his administrative remedies and not the 17 statute of limitations. ECF No. 41 at 2. 18 By way of reply, defendants cite to the relevant court documents in Howard I that 19 demonstrate that plaintiff’s prior case was proceeding on the same excessive force claims at issue 20 in the present case and that it was not voluntarily dismissed by plaintiff. ECF No. 42 at 2. 21 Rather, the court granted defendants’ motion for summary judgment based on the statute of 22 limitations and judgment was entered in favor of defendants. ECF No. 42 at 2-3. Therefore, 23 plaintiff’s arguments regarding the exhaustion of his administrative remedies are irrelevant as 24 Howard I was not decided on that basis. Id. at 3. 25 II. Legal Standards 26 A. Rule 12(b)(6) Motion 27 In considering a motion to dismiss, the court must accept as true the allegations of the 28 complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), 1 construe the pleading in the light most favorable to the party opposing the motion, and resolve all 2 doubts in the pleader’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). The court will 3 “‘presume that general allegations embrace those specific facts that are necessary to support the 4 claim.’” National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994), quoting 5 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Moreover, pro se pleadings are held to 6 a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 7 (1972). 8 In ruling on a motion to dismiss, the court may consider facts established by exhibits 9 attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). 10 The court may also consider facts which may be judicially noticed, Mullis v. United States 11 Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including 12 pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 13 F.2d 1279, 1282 (9th Cir. 1986). For this reason, the court will grant defendants’ request for 14 judicial notice of the pleadings and orders issued in Howard I. 15 B. Issue Preclusion 16 Issue preclusion bars “successive litigation of an issue of fact or law actually litigated and 17 resolved in a valid court determination essential to the prior judgment, whether or not the issue 18 arises on the same or a different claim.” New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001). 19 Relitigation of the same issue is precluded where “(1) the issue necessarily decided at the 20 previous proceeding is identical to the one which is sought to be relitigated; (2) the first 21 proceeding ended with a final judgment on the merits; and (3) the party against whom issue 22 preclusion is asserted was a party or in privity with a party at the first proceeding.” Paulo v. 23 Holder, 669 F.3d 911, 917 (9th Cir. 2011) (quoting Hydranautics v. FilmTec Corp., 204 F.3d 880, 24 885 (9th Cir. 2000)). 25 III. Analysis 26 The court must first determine whether the issue raised in the present action concerning 27 the statute of limitations is identical to an issue that has already been litigated in a prior 28 proceeding. A review of the Findings and Recommendations issued on November 7, 2017 in 1 Howard I demonstrates that the statute of limitations on plaintiff’s excessive force claims from 2 November 1, 2013 has already been litigated. See ECF No. 36 in Howard v. Williamson, et al., 3 Case No. 2:16-cv-01200-TLN-KJN (E.D. Cal.), adopted by ECF No. 43 (March 30, 2018). In 4 Howard I, the court determined that plaintiff’s complaint was barred by the statute of limitations 5 after determining that plaintiff was not entitled to any tolling. Id. Plaintiff’s argument that the 6 case was resolved based on his failure to exhaust administrative remedies is not supported by the 7 record. Therefore, the court finds that the first factor of issue preclusion has been satisfied. 8 Secondly, the prior proceeding resulted in a final judgment being entered. In Howard I, 9 final judgment in favor of defendants was entered on March 30, 2018. See ECF No. 44 in 10 Howard v. Williamson, et al., Case No. 2:16-cv-01200-TLN-KJN (E.D. Cal.). Once again, 11 plaintiff’s argument that he voluntarily dismissed this case is not supported by the record. 12 Lastly, the parties in the present proceeding are the same as, or in privity with, those in 13 Howard I. Plaintiff sues the same three correctional officers as in Howard I. In the present case, 14 plaintiff named a fourth defendant, Wuest, who was also a correctional officer at CSP-Sac. 15 Generally, the Ninth Circuit has held that “when two parties are so closely aligned in interest that 16 one is the virtual representative of the other, a claim by or against one will serve to bar the same 17 claim by or against the other.” Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1405 (9th Cir. 1993). 18 Here, all of the defendants worked alongside one another at the same prison during the events at 19 issue. Therefore, their interests are so closely aligned as to be determined to be in privity with 20 one another. For purposes of resolving the present motion, the court finds that the parties in the 21 present proceeding are the same as, or in privity with, those in Howard I. 22 Based on all three of these factors, the court finds there is an (1) identity of issue, (2) a 23 final judgment on the merits, and (3) privity between the parties, such that re-litigation of the 24 statute of limitations issue is barred by the determination in Howard I that the claims are time 25 barred. Accordingly, the undersigned recommends granting defendants’ motion to dismiss 26 plaintiff’s second amended complaint with prejudice. 27 IV. Plain Language Summary for Pro Se Party 28 The following information is meant to explain this order in plain English and is not 1 | intended as legal advice. 2 After reviewing defendants’ motion to dismiss, the undersigned is recommending that this 3 || case be dismissed because the statute of limitations issue was previously decided against you in 4 | your prior case of Howard v. Williamson, et al., Case No. 2:16-cv-01200-TLN-KJN (E.D. Cal.), 5 || and it cannot now be relitigated. This same legal issue cannot be decided differently in two 6 || different cases involving the same parties. 7 If you disagree with this recommendation, you have fourteen days to explain why it is the 8 | wrong result. Label your explanation as “Objections to Magistrate Judge’s Findings and 9 || Recommendations.” The district judge assigned to your case will review any objections filed and 10 || make the final decision in your case. 11 Accordingly, IT IS HEREBY ORDERED that Defendants’ Request for Judicial Notice of 12 | plaintiffs prior case of Howard v. Williamson, et al., Case No. 2:16-cv-01200-TLN-KJN (E.D. 13 | Cal.) is granted. 14 IT IS FURTHER RECOMMENDED that defendants’ motion to dismiss (ECF No. 33) be 15 || granted and that plaintiff's second amended complaint be dismissed with prejudice. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 21 || objections shall be served and filed within fourteen days after service of the objections. The 22 || parties are advised that failure to file objections within the specified time may waive the right to 23 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: April 7, 2022 / □□ I / dle ae 25 CAROLYNK. DELANEY 2% UNITED STATES MAGISTRATE JUDGE 27 | 12/howa2062.mtd.docx 28