-GGH (PS) Jacobson v. Army Board for the Correction of Military Records, No. 2:2011cv02493 - Document 3 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/19/11 ORDERING that the 2 Motion to Proceed IFP is GRANTED; RECOMMENDING that the action be dismissed with prejudice. Referred to Judge Morrison C. England, Jr. Objections due within 14 days. (Manzer, C)
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-GGH (PS) Jacobson v. Army Board for the Correction of Military Records Doc. 3 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BOBBY N. JACOBSON, 11 12 13 14 15 Plaintiff, No. CIV S-11-2493 MCE GGH PS vs. DEPARTMENT OF THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS, Defendant. 16 ORDER AND FINDINGS AND RECOMMENDATIONS / 17 Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma 18 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to the undersigned by E.D. 19 Cal. L.R. 302(c)(21), pursuant to 28 U.S.C. § 636(b)(1). 20 21 22 Plaintiff has submitted an affidavit making the showing required by 28 U.S.C. § 1915(a)(1). Accordingly, the request to proceed in forma pauperis will be granted. The determination that plaintiffs may proceed in forma pauperis does not 23 complete the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to 24 dismiss the case at any time if it determines the allegation of poverty is untrue, or if the action is 25 frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary 26 relief against an immune defendant. Dockets.Justia.com 1 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 2 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 3 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 4 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 5 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 6 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 7 Cir. 1989); Franklin, 745 F.2d at 1227. 8 A complaint must contain more than a “formulaic recitation of the elements of a 9 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 10 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 11 “The pleading must contain something more...than...a statement of facts that merely creates a 12 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 13 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 15 v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 16 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 17 the court to draw the reasonable inference that the defendant is liable for the misconduct 18 alleged.” Id. 19 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 20 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 21 Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se 22 plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before 23 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 24 The court finds that this action should be dismissed under the principles of claim 25 preclusion. Claim preclusion bars litigation in a subsequent action of “any claims that were 26 raised or could have been raised in the prior action...The doctrine is applicable whenever there is 2 1 “(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between 2 parties.” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). The 3 Ninth Circuit has identified four factors that should be considered by a court in determining 4 whether successive lawsuits involve the same claims: 5 (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; 6 7 (2) whether substantially the same evidence is presented in the two actions; 8 (3) whether the two suits involve infringement of the same right; and 9 10 (4) whether the two suits arise out of the same transactional nucleus of facts. 11 12 See C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987). “The central criterion 13 in determining whether there is an identity of claims between the first and second adjudications is 14 whether the two suits arise out of the same transactional nucleus of facts.” Owens, 244 F.3d at 15 714. 16 Here, on August 7, 2008, plaintiff initially filed a complaint against the 17 Department of the Army Board for the Correction of Military Records (“Army Board”) seeking 18 an order that the Army Board issue him a “Purple Heart” based on plaintiff’s Army service in the 19 Korean war during which plaintiff allegedly sustained shrapnel wounds while engaged in hostile 20 action. In the course of that litigation, plaintiff also contended that because the Army Board 21 incorrectly ruled that he did not prove that he was wounded in combat, it erroneously denied his 22 application for an upgraded discharge. On September 30, 2009, after considering the evidence 23 submitted by both parties, the court granted summary judgment in favor of the Army Board. The 24 court found that plaintiff failed to show that the Army Board’s decision was arbitrary or 25 capricious, not based on substantial evidence, or contrary to law. Plaintiff did not appeal that 26 judgment. (See CIV S-08-1828 GGH PS.) 3 1 The current action, filed almost two years later on September 20, 2011, involves 2 the same parties (plaintiff and the Army Board) and the same claims (a request that the court 3 “rule that the [Army Board] acted arbitrarily, capriciously, and unlawfully in denying my 4 applications for the Purple Heart medal and a corrected honorable discharge.”) (Dkt. No. 1, at p. 5 4.) Additionally, the current action would involve substantially the same evidence that was 6 presented in the context of the summary judgment motion in the prior action. Because the 7 current action arises out of the same transactional nucleus of facts, it is barred by the doctrine of 8 claim preclusion. In light of this, leave to amend would be futile. 9 10 For the reasons outlined above, IT IS HEREBY ORDERED that plaintiff’s request to proceed in forma pauperis (dkt. no. 2) is granted. 11 IT IS ALSO HEREBY RECOMMENDED that: 12 1. The action be dismissed with prejudice, and 13 2. The case be closed. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 16 days after being served with these findings and recommendations, plaintiff may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 19 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 20 F.2d 1153 (9th Cir. 1991). 21 DATED: October 19, 2011 22 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 23 24 25 GGH/wvr 26 Jacobson.2493.ifp-fr.wpd 4
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