1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 ZINAIDA DOLJENKO and Case No. 2:21-cv-02818-DSF (GJS) GENNADY DOLZHENKO, 12 ORDER SUMMARILY Plaintiffs DISMISSING ACTION 13 v. 14 THE CITY OF LOS ANGELES, et 15 al.,
16 Defendants.
17 As part of the inherent authority to control its docket, the Court is summarily 18 dismissing this action without prejudice because it is duplicative of a prior pending 19 case, CV 21-02088-DSF (GJS).1 The Complaints in both cases were brought by the 20 same Plaintiffs, name many of the same defendants, and list nearly identical claims 21 all arising from the same incident—Plaintiff Zinaida Doljenko’s2 March 27, 2019 22 arrest for allegedly making criminal threats. 23 On March 29, 2021, Plaintiffs Zinaida Doljenko and Gennady Dolzhenko, 24 proceeding pro se and in forma pauperis, filed the instant civil rights action pursuant 25
26 1 Plaintiffs’ Complaint in CV 21-02088 was filed on March 5, 2021 and is currently awaiting screening pursuant to 28 U.S.C. § 1915(a) and (e)(2). 27 2 The Court uses Zinaida Doljenko’s first name to avoid confusion with the 28 other named plaintiff, Gennady Dolzhenko. 1 to 42 U.S.C. § 1983 against the City of Los Angeles, Chief Michel Moore, Sergeant 2 Mejia, Sergeant Matt Ethridge, Police Officer Herrera, and Police Officer 3 Georgeson seeking damages (“Doljenko II”). Plaintiffs allege that on March 27, 4 2019, Zinaida was falsely arrested after her landlord “S. Kravchenko” made a “false 5 911 call” alleging that Plaintiff had threatened to “assault and kill” her. (Compl. ¶ 6 19.) Following the call, Defendant police officers Mejia, Herrera, and Georgeson 7 arrived at the apartment, questioned Zinaida for over three hours about the alleged 8 threats, and ultimately arrested her. (Compl. ¶¶ 20, 22.) Zinaida was initially 9 charged with a felony for making criminal threats, however, that charge was later 10 reduced to a misdemeanor and eventually dismissed on July 10, 2019. (Compl. ¶ 11 31.) Plaintiffs claim that the individual Defendant officers arrested her without a 12 warrant and without first conducting a proper investigation regarding the 13 “truthfulness of allegations of threatening to assault and to kill.” (Compl. ¶ 25.) 14 Plaintiffs claim that arresting officers’ conduct amounted to false arrest, unlawful 15 search and seizure, and excessive force. As to the City of Los Angeles and Chief 16 Michel Moore, Plaintiffs allege that Zinaida’s false arrest was the “result of 17 unconstitutional policies, practices and procedures in place at the City of Los 18 Angeles Police Department.” (Compl. ¶ 33.) Plaintiffs also allege related state law 19 claims stemming from the March 27, 2019 arrest including “false arrest, illegal 20 lockout, intentional infliction of emotional distress, and negligent infliction of 21 emotional distress.” (Compl. ¶¶ 67-86.) 22 On March 5, 2021, Plaintiffs, again proceeding pro se and in forma pauperis, 23 filed a similar civil rights complaint pursuant to 42 U.S.C. § 1983 against the City of 24 Los Angeles, Chief Michel Moore, Assistant Chief Robert Arcos, Captain Rafael 25 Ramirez, Captain Richard Gabaldon, Lieutenant Robert Toledo, Sergeant Matt 26 Ethridge, Sergeant Jeff Beck, and Detective Joseph Hampton. See Dolzhenko v. 27 City of Los Angeles, No. 2:21-CV-2088-DSF (GJS) (C.D. Cal. Mar. 5, 2021) 28 (“Dolzhenko I”). Like the instant complaint, Plaintiffs’ Complaint in Case No. CV 1 21-2088 includes substantially all of the factual allegations and claims asserted in 2 Doljenko II including identical claims of false arrest, unlawful search and seizure, 3 excessive force, Monell liability and state law tort claims for intentional and 4 negligent infliction of emotional distress all stemming from Zinaida’s March 27, 5 2019 arrest. 6 DISCUSSION 7 Under the doctrine against claim splitting, a party is “not at liberty to split up 8 his demand, and prosecute it by piecemeal, or present only a portion of the grounds 9 upon which special relief is sought, and leave the rest to be presented in a second 10 suit, if the first fails.” United States v. Haytian Republic, 154 U.S. 118, 125 (1894). 11 This rule “protect[s] the defendant from being harassed by repetitive actions based 12 on the same claim.” Clements v. Airport Auth. of Washoe Cnty., 69 F.3d 321, 328 13 (9th Cir. 1995). In contrast to a res judicata dismissal, dismissal for claim splitting 14 does not require the entry of a judgment in the first action. Comm’r v. Sunnen, 333 15 U.S. 591, 597 (1948); see also Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir. 16 2011). To ascertain whether a complaint is subject to dismissal for claim splitting, 17 the Court must examine whether the causes of actions in the two suits are the same 18 and the parties to the suits are the same or in privity. Adams v. Cal. Dep’t of Health 19 Servs., 487 F.3d 684, 688-89 (9th Cir. 2007), overruled on other grounds by Taylor 20 v. Sturgell, 553 U.S. 880, 904 (2008). 21 To determine whether successive causes of action are the same, this Court 22 applies the “transaction test,” which was developed in the context of claim 23 preclusion. See id. at 688. In applying the transaction test, four criteria are relevant:
24 (1) whether rights or interests established in the prior judgment would 25 be destroyed or impaired by prosecution of the second action; (2) 26 whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and 27 (4) whether the two suits arise out of the same transactional nucleus of 28 facts. 1 Id. The final criterion is also the most important. See United States v. Liquidators 2 of European Fed. Credit Bank, 630 F.3d 1139, 1151 (9th Cir. 2011). 3 Relatedly, “[t]here is no abuse of discretion where a district court dismisses 4 under [28 U.S.C.] § 1915 a complaint that merely repeats pending or previously 5 litigated claims.” See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) 6 (quotation marks omitted); see also Denton v. Hernandez, 504 U.S. 25, 31 (1992) 7 (recognizing Congress’s concern that “a litigant whose filing fees and court costs are 8 assumed by the public, unlike a paying litigant, lacks an economic incentive to 9 refrain from filing frivolous, malicious, or repetitive lawsuits”) (internal quotation 10 marks and citation omitted). It is also well-established that “[a]ll federal courts are 11 vested with inherent powers enabling them to manage their cases and courtrooms 12 effectively.” United States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008) 13 (quoting Aloe Vera of America, Inc. v. United States, 376 F.3d 960, 964-65 (9th Cir. 14 2004)). 15 Here, in both this case and Case No. CV 21-2088, Plaintiffs bring 16 substantially the same claims regarding the same exact incident involving Plaintiff 17 Zinaida’s arrest following her landlord’s call to the police.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10
11 ZINAIDA DOLJENKO and Case No. 2:21-cv-02818-DSF (GJS) GENNADY DOLZHENKO, 12 ORDER SUMMARILY Plaintiffs DISMISSING ACTION 13 v. 14 THE CITY OF LOS ANGELES, et 15 al.,
16 Defendants.
17 As part of the inherent authority to control its docket, the Court is summarily 18 dismissing this action without prejudice because it is duplicative of a prior pending 19 case, CV 21-02088-DSF (GJS).1 The Complaints in both cases were brought by the 20 same Plaintiffs, name many of the same defendants, and list nearly identical claims 21 all arising from the same incident—Plaintiff Zinaida Doljenko’s2 March 27, 2019 22 arrest for allegedly making criminal threats. 23 On March 29, 2021, Plaintiffs Zinaida Doljenko and Gennady Dolzhenko, 24 proceeding pro se and in forma pauperis, filed the instant civil rights action pursuant 25
26 1 Plaintiffs’ Complaint in CV 21-02088 was filed on March 5, 2021 and is currently awaiting screening pursuant to 28 U.S.C. § 1915(a) and (e)(2). 27 2 The Court uses Zinaida Doljenko’s first name to avoid confusion with the 28 other named plaintiff, Gennady Dolzhenko. 1 to 42 U.S.C. § 1983 against the City of Los Angeles, Chief Michel Moore, Sergeant 2 Mejia, Sergeant Matt Ethridge, Police Officer Herrera, and Police Officer 3 Georgeson seeking damages (“Doljenko II”). Plaintiffs allege that on March 27, 4 2019, Zinaida was falsely arrested after her landlord “S. Kravchenko” made a “false 5 911 call” alleging that Plaintiff had threatened to “assault and kill” her. (Compl. ¶ 6 19.) Following the call, Defendant police officers Mejia, Herrera, and Georgeson 7 arrived at the apartment, questioned Zinaida for over three hours about the alleged 8 threats, and ultimately arrested her. (Compl. ¶¶ 20, 22.) Zinaida was initially 9 charged with a felony for making criminal threats, however, that charge was later 10 reduced to a misdemeanor and eventually dismissed on July 10, 2019. (Compl. ¶ 11 31.) Plaintiffs claim that the individual Defendant officers arrested her without a 12 warrant and without first conducting a proper investigation regarding the 13 “truthfulness of allegations of threatening to assault and to kill.” (Compl. ¶ 25.) 14 Plaintiffs claim that arresting officers’ conduct amounted to false arrest, unlawful 15 search and seizure, and excessive force. As to the City of Los Angeles and Chief 16 Michel Moore, Plaintiffs allege that Zinaida’s false arrest was the “result of 17 unconstitutional policies, practices and procedures in place at the City of Los 18 Angeles Police Department.” (Compl. ¶ 33.) Plaintiffs also allege related state law 19 claims stemming from the March 27, 2019 arrest including “false arrest, illegal 20 lockout, intentional infliction of emotional distress, and negligent infliction of 21 emotional distress.” (Compl. ¶¶ 67-86.) 22 On March 5, 2021, Plaintiffs, again proceeding pro se and in forma pauperis, 23 filed a similar civil rights complaint pursuant to 42 U.S.C. § 1983 against the City of 24 Los Angeles, Chief Michel Moore, Assistant Chief Robert Arcos, Captain Rafael 25 Ramirez, Captain Richard Gabaldon, Lieutenant Robert Toledo, Sergeant Matt 26 Ethridge, Sergeant Jeff Beck, and Detective Joseph Hampton. See Dolzhenko v. 27 City of Los Angeles, No. 2:21-CV-2088-DSF (GJS) (C.D. Cal. Mar. 5, 2021) 28 (“Dolzhenko I”). Like the instant complaint, Plaintiffs’ Complaint in Case No. CV 1 21-2088 includes substantially all of the factual allegations and claims asserted in 2 Doljenko II including identical claims of false arrest, unlawful search and seizure, 3 excessive force, Monell liability and state law tort claims for intentional and 4 negligent infliction of emotional distress all stemming from Zinaida’s March 27, 5 2019 arrest. 6 DISCUSSION 7 Under the doctrine against claim splitting, a party is “not at liberty to split up 8 his demand, and prosecute it by piecemeal, or present only a portion of the grounds 9 upon which special relief is sought, and leave the rest to be presented in a second 10 suit, if the first fails.” United States v. Haytian Republic, 154 U.S. 118, 125 (1894). 11 This rule “protect[s] the defendant from being harassed by repetitive actions based 12 on the same claim.” Clements v. Airport Auth. of Washoe Cnty., 69 F.3d 321, 328 13 (9th Cir. 1995). In contrast to a res judicata dismissal, dismissal for claim splitting 14 does not require the entry of a judgment in the first action. Comm’r v. Sunnen, 333 15 U.S. 591, 597 (1948); see also Katz v. Gerardi, 655 F.3d 1212, 1218 (10th Cir. 16 2011). To ascertain whether a complaint is subject to dismissal for claim splitting, 17 the Court must examine whether the causes of actions in the two suits are the same 18 and the parties to the suits are the same or in privity. Adams v. Cal. Dep’t of Health 19 Servs., 487 F.3d 684, 688-89 (9th Cir. 2007), overruled on other grounds by Taylor 20 v. Sturgell, 553 U.S. 880, 904 (2008). 21 To determine whether successive causes of action are the same, this Court 22 applies the “transaction test,” which was developed in the context of claim 23 preclusion. See id. at 688. In applying the transaction test, four criteria are relevant:
24 (1) whether rights or interests established in the prior judgment would 25 be destroyed or impaired by prosecution of the second action; (2) 26 whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and 27 (4) whether the two suits arise out of the same transactional nucleus of 28 facts. 1 Id. The final criterion is also the most important. See United States v. Liquidators 2 of European Fed. Credit Bank, 630 F.3d 1139, 1151 (9th Cir. 2011). 3 Relatedly, “[t]here is no abuse of discretion where a district court dismisses 4 under [28 U.S.C.] § 1915 a complaint that merely repeats pending or previously 5 litigated claims.” See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) 6 (quotation marks omitted); see also Denton v. Hernandez, 504 U.S. 25, 31 (1992) 7 (recognizing Congress’s concern that “a litigant whose filing fees and court costs are 8 assumed by the public, unlike a paying litigant, lacks an economic incentive to 9 refrain from filing frivolous, malicious, or repetitive lawsuits”) (internal quotation 10 marks and citation omitted). It is also well-established that “[a]ll federal courts are 11 vested with inherent powers enabling them to manage their cases and courtrooms 12 effectively.” United States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008) 13 (quoting Aloe Vera of America, Inc. v. United States, 376 F.3d 960, 964-65 (9th Cir. 14 2004)). 15 Here, in both this case and Case No. CV 21-2088, Plaintiffs bring 16 substantially the same claims regarding the same exact incident involving Plaintiff 17 Zinaida’s arrest following her landlord’s call to the police. Having reviewed both 18 complaints, the Court concludes there is no justification for allowing these two 19 separate cases to proceed simultaneously based on what plainly is a single Section 20 1983 attack on Zinaida’s warrantless arrest. Although both complaints involve 21 substantially the same subject matter, the Court also notes that the causes of action 22 and the listed defendants are not completely identical. For example in Dolzhenko I, 23 in addition to Plaintiffs’ allegations regarding Zinaida’s unlawful arrest, Plaintiffs 24 allege claims against various officers at the North Hollywood police department for 25 failing to properly investigate the March 27 arrest. (Compl. ¶ 18.) But in Doljenko 26 II, Plaintiffs do not mention the complaints to the North Hollywood police 27 department following the arrest, but instead focus their claims on the actions of the 28 arresting officers during the March 27, 2019 arrest. Despite these slight variations, 1 || Plaintiffs’ instant complaint violates the rule against claim splitting, which 2 || “prevent[s] the same plaintiff from filing multiple suits alleging the same claims 3 || against the same defendant when one suit will do.” Beckerley v. Alorica, Inc., 14- 4 || cv-0836, 2014 U.S. Dist. LEXIS 132070, 2014 WL 4670229, at *4 (C.D. Cal., Sept. 5 || 17,2014). Because the rule against claim splitting forecloses Plaintiffs’ ability to 6 || bring two separate actions involving the same subject matter at the same time in the 7 || same court against many of the same defendants, dismissal of the instant action is 8 || appropriate. 9 Further, dismissal will not prejudice Plaintiffs as they may file a First 10 || Amended complaint in Dolzhenko J, which is currently pending. Should Plaintiffs 11 || choose to amend their Complaint in Dolzhenko J, Plaintiffs shall consolidate their 12 || relevant claims and grievances into one amended complaint. 13 IT THEREFORE IS ORDERED that the Complaint in this action 1s dismissed 14 || as duplicative of CV 20-2088, and Judgment shall be entered dismissing this action 15 || without prejudice. 16 17 IT IS SO ORDERED. 18 || DATED: May 17, 2021 i) □ + )
30 UNITED STATES DISTRICT JUDGE 21 22 || PRESENTED BY: BYU 24 GAIL J. STANDISH 25 || UNITED STATES MAGISTRATE JUDGE 26 27 28