(PC) Maeshack v. Avenal State Prison, et al, No. 1:2006cv00011 - Document 58 (E.D. Cal. 2010)
Court Description: FINDINGS And RECOMMENDATIONS, Recommending That Defendant Weeds' Motion To Dismiss Be Granted, With Prejudice, For Failure To State A Claim, Based On The Doctrine Of Res Judicata (Doc. 36 ), Objections, If Any, Due In 30 Days, signed by Magistrate Judge Gary S. Austin on 1/20/2010. F&R referred to Judge Anthony W. Ishii; Objections to F&R due by 2/23/2010.(Scrivner, E)
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(PC) Maeshack v. Avenal State Prison, et al Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT MAESHACK, 12 13 14 1:06-cv-00011-AWI-GSA-PC Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT WEED’S MOTION TO DISMISS BE GRANTED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, BASED ON THE DOCTRINE OF RES JUDICATA (Doc. 36.) v. AVENAL STATE PRISON, et al., 15 Defendants. 16 OBJECTIONS, IF ANY, DUE IN 30 DAYS / 17 18 Findings and Recommendations on Defendant Weeds’ Motion to Dismiss for Failure to State a Claim 19 Plaintiff Robert Maeshack (“plaintiff”), a state prisoner proceeding pro se and in forma 20 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on December 22, 2005, at the 21 Sacramento Division of the United States District Court for the Eastern District of California. (Doc. 22 1.) On January 5, 2006, the case was transferred to the Fresno Division of the Eastern District. 23 (Doc. 5.) This action now proceeds on plaintiff’s amended complaint filed on March 16, 2007, 24 against defendants MTA Harbinson, Dr. McIntyre, Dr. Weed, and Dr. Sweetland for denial of 25 adequate medical care in violation of the Eighth Amendment, and for medical malpractice under 26 state law.1 (Doc. 17.) 27 28 1 All other claims and defendants were dismissed by the Court on January 13, 2009. (Doc. 25.) 1 Dockets.Justia.com 1 On April 28, 2009, defendant Weed filed a motion to dismiss plaintiff ’s claims against him 2 for failure to state a claim upon which relief may be granted, based on the doctrine of res judicata. 3 Fed. R. Civ. P. 12(b)(6). (Doc. 36.) Plaintiff filed an opposition to the motion on September 4, 4 2009. (Doc. 55.) Defendant Weed did not file a reply to the opposition. 5 I. LEGAL STANDARDS 6 A. 7 “The focus of any Rule 12(b)(6) dismissal . . . is the complaint,” Schneider v. California 8 Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), which must contain “a short and plain 9 statement of the claim showing that the pleader is entitled to relief . . . ,” Fed. R. Civ. P. 8(a)(2). 10 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 11 to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 (2007)); Moss 13 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls 14 short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969. Rule 12(b)(6) 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 16 cause of action, supported by mere conclusory statements, do not suffice,” Iqbal, 129 S.Ct at 1949 17 (citing Twombly, 550 U.S. at 555), and courts “are not required to indulge unwarranted inferences,” 18 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 19 citation omitted). 20 B. 21 The doctrine of res judicata bars the re-litigation of claims previously decided on their merits. 22 Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005).2 Under the doctrine of 23 claim preclusion, a final judgment on the merits of an action precludes the parties or persons in 24 privity with them from litigating the same claim that was raised in that action and all claims arising 25 out of the same transaction or occurrence. See Taylor v. Sturgell, 128 S.Ct. 2161, 2171 (2008); 26 Rest.2d Judgments § 18. “The elements necessary to establish res judicata are: ‘(1) an identity of Res Judicata 27 2 28 The Supreme Court recently clarified that the terms “claim preclusion” and “issue preclusion” are collectively referred to as “res judicata.” Taylor v. Sturgell, 128 S.Ct. 2161, 2171 (2008). 2 1 claims, (2) a final judgment on the merits, and (3) privity between parties.’” Headwaters, Inc., 399 2 F.3d at 1052 (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.2d 3 1064, 1077 (9th Cir. 2003)). “[T]he doctrine of res judicata (or claim preclusion) ‘bars all grounds 4 for recovery which could have been asserted, whether they were or not, in a prior suit between the 5 same parties ... on the same cause of action.’” Costantini v. Trans World Airlines 681 F.2d 1199, 6 1201 (9th Cir. 1982) (quoting Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980) (emphasis added)). 7 When determining, for res judicata purposes, whether a present dispute concerns the same 8 claims as did prior litigation, the Ninth Circuit considers: "(1) whether rights or interests established 9 in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) 10 whether substantially the same evidence is presented in the two actions; (3) whether the two suits 11 involve infringement of the same right; and (4) whether the two suits arise out of the same 12 transactional nucleus of facts", which is the most important factor. Headwaters, Inc., 399 F.3d at 13 1052. 14 The related doctrine of collateral estoppel, or issue preclusion, provides that “when an issue 15 of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be 16 litigated between the same parties in any future lawsuit.” U.S. v. Bhatia, 545 F.3d 757, 759 (9th Cir. 17 2008) (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). Both doctrines apply to criminal and 18 civil proceedings, and both require privity between the parties. Bhatia, 545 F.3d at 759 (citing U.S. 19 v. Cejas, 817 F.2d 595, 598 (9th Cir. 1987) and see In re Schimmels, 127 F.3d at 881(noting that, 20 under res judicata, “parties or their privies” may be bound by a prior judgment); United States v. ITT 21 Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir.1980) (requiring identity or privity between parties for 22 collateral estoppel to apply)). 23 A defendant relying on res judicata or collateral estoppel as a defense must plead it as an 24 affirmative defense. Blonder-Tongue Laboratories, Inc. v. University of Ill. Found., 402 U.S. 313, 25 350, 91 S.Ct. 1434, 1453 (1971). However, "if a court is on notice that it has previously decided the 26 issue presented, the court may dismiss the action sua sponte, even though the defense has not been 27 raised," Arizona v. California, 530 U.S. 392, 416, 120 S.Ct. 2304, 2318 (2000), provided that the 28 parties have an opportunity to be heard prior to dismissal, Headwaters, Inc., 399 F.3d at 1055. "As 3 1 a general matter, a court may, sua sponte, dismiss a case on preclusion grounds 'where the records 2 of that court show that a previous action covering the same subject matter and parties had been 3 dismissed.'" Id. at 1054-1055 (quoting Evarts v. W. Metal Finishing Co., 253 F.2d 637, 639 n. 1 (9th 4 Cir. 1058)). 5 C. 6 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 7 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 8 U.S. 337, 347 (1981). A prison official does not act in a deliberately indifferent manner unless the 9 official “knows of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 10 511 U.S. 825, 834 (1994). “[T]o maintain an Eighth Amendment claim based on prison medical 11 treatment, an inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 12 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 295 13 (1976)). The two part test for deliberate indifference requires the plaintiff to show (1) “‘a serious 14 medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further 15 significant injury or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s 16 response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. 17 Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. 18 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate 19 indifference is shown by “a purposeful act or failure to respond to a prisoner’s pain or possible 20 medical need, and harm caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Eighth Amendment Medical Claim 21 “[T]he existence of an injury that a reasonable doctor would find important and worthy of 22 comment or treatment, . . . the presence of a medical condition that significantly affects an 23 individual’s daily activities, and . . . the existence of chronic or substantial pain” are indications of 24 a serious medical need. Doty v. County of Lassen, 37 F.3d 540, 546 n.3 (9th Cir. 1994) (citing 25 McGuckin, 974 F.2d at 1059-1060, overruled on other grounds, WMX Techs., Inc., 104 F.3d at 1136 26 (en banc)); Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000). 27 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d, 1051, 1060 28 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 4 1 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 2 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official 3 should have been aware of the risk, but was not, then the official has not violated the Eighth 4 Amendment, no matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 5 290 F.3d 1175, 1188 (9th Cir. 2002)). 6 II. 7 8 RELEVANT PROCEDURAL HISTORY Court records show that plaintiff filed three separate actions largely concerning the same defendants and claims. 9 Case Number 1:06-cv-00065 (Maeshack v. Avenal State Prison, et al.) 10 Plaintiff filed the complaint commencing this action on December 23, 2005, at the 11 Sacramento Division of the United States District Court for the Eastern District of California, case 12 number 2:05-cv-2607-MCE-PAN-PC. Plaintiff brought claims pursuant to 42 U.S.C. § 1983 for 13 violation of his rights to adequate medical care under the Eighth Amendment, against defendants 14 Avenal State Prison, Medical Technical Assistant (“MTA”) Harbinson, Lieutenant Smith, and 15 Appeals Coordinator Grazier, for denial of medical treatment for a rat bite plaintiff received on April 16 23, 2004. On January 19, 2006, the case was transferred to the Fresno Division of the Eastern 17 District and opened as case number 1:06-cv-00065-AWI-SMS-PC. On September 12, 2006, the 18 Court consolidated this case with case 1:06-cv-01025 AWI-SMS-PC, closing case 1:06-cv-00065- 19 AWI-SMS-PC. (Doc. 14.) The consolidated action then proceeded under case number 1:06-cv- 20 01025-AWI-SMS-PC, which is described next. 21 Case Number 1:06-cv-01025 (Maeshack v. Greenough, et al.) 22 Plaintiff filed the complaint commencing this action on August 7, 2006, pursuant to 42 23 U.S.C. § 1983, for violation of his rights to adequate medical care under the Eighth Amendment, 24 against defendants Dr. Greenough (CMO) and Arnold Schwarzenegger, for denial of medical 25 treatment for a rat bite received by plaintiff on April 23, 2004. On September 12, 2006, upon 26 plaintiff’s motion, the Court consolidated this case with case 1:06-cv-00065-AWI-SMS-PC. (Docs. 27 5, 6.) The consolidated action then proceeded under case number 1:06-cv-01025-AWI-SMS-PC, 28 /// 5 1 against defendants Dr. Greenough (CMO), Arnold Schwarzenegger, Avenal State Prison, MTA 2 Harbinson, Lieutenant Smith, and Appeals Coordinator Grazier. 3 On September 21, 2006, plaintiff filed the First Amended Complaint. (Doc. 7.) On July 10, 4 2008, dismissed the First Amended Complaint with leave to amend. (Doc. 8.) On September 15, 5 2008, plaintiff filed the Second Amended Complaint. (Doc. 11.) In the Second Amended 6 Complaint, plaintiff named MTA H. Harbinson , CCII G. Grazier, Lieutenant Smith, Dr. Weed, and 7 Dr. McIntyre as defendants. 8 On November 25, 2008, the case was reassigned to District Judge G. Murray Snow (“Judge 9 Snow”) for all further proceedings. (Doc. 12.) On January 16, 2009, Judge Snow dismissed the 10 Second Amended Complaint pursuant to 28 U.S.C. § 1915A(b)(1), for failure to state a claim, 11 without leave to amend, terminating the entire action. (Doc. 14.) With regard to the allegations 12 against Dr. Weed, Judge Snow found that plaintiff failed to provide information about the nature and 13 severity of his injuries, making it impossible for the Court to determine whether he was denied 14 treatment for serious medical needs. Judge Snow also found that plaintiff failed to describe what 15 injury, if any, resulted from Dr. Weed’s failure to provide him with medical care. 16 Plaintiff’s Allegations and Claims Against Dr. Weed in Case 1:06-cv-00025 17 Plaintiff alleged in the Second Amended Complaint that on April 23, 2004, while he was 18 incarcerated at Avenal State Prison, he was bitten by a mouse or rat. Plaintiff alleges that on or 19 about May 8, 2004, Dr. Weed, a doctor at Avenal State Prison, refused to provide medical treatment 20 to plaintiff’s serious medical condition. Plaintiff claimed that Dr. Weed’s refusal to provide medical 21 treatment violated section 2652 of the Penal Code and the cruel and unusual punishment clause of 22 the Eighth Amendment. 23 Case Number 1:06-cv-00011-AWI-GSA-PC (Maeshack v. Avenal State Prison, et al.) 24 Plaintiff filed the complaint commencing this action on December 22, 2005, at the 25 Sacramento Division of the United States District Court for the Eastern District of California, case 26 number 2:05-cv-2599-LKK-DAD-PC. Plaintiff brought claims pursuant to 42 U.S.C. § 1983 for 27 violation of his rights to adequate medical care under the Eighth Amendment pursuant to 42 U.S.C. 28 § 1983, against defendants Avenal State Prison, MTA Harbinson, Lieutenant Smith, and Appeals 6 1 Coordinator Mr. Grazier, for denial of medical treatment for a rat bite plaintiff received on April 23, 2 2004. (Doc. 1.) On January 5, 2006, the case was transferred to the Fresno Division of the Eastern 3 District and opened as case number 1:06-cv-00011-AWI-LJO-PC. On February 20, 2007, the Court 4 issued an order requiring plaintiff to either file an amended complaint or notify the Court in writing 5 that he does not wish to file an amended complaint and pursue the action and instead wishes to 6 voluntarily dismiss the case. (Doc. 15.) On February 26, 2007, due to the elevation of Magistrate 7 Judge Lawrence J. O’Neill to District Judge, the case was reassigned from District Judge Anthony 8 W. Ishii to District Judge Lawrence J. O’Neill, and from Magistrate Judge Lawrence J. O’Neill to 9 Magistrate Judge Dennis L. Beck, as case number 1:06-cv-00011-LJO-NEW(DLB)-PC. (Doc. 16.) 10 On March 16, 2007, plaintiff filed the First Amended Complaint against defendants MTA 11 Harbinson, Lieutenant Smith, Appeals Coordinator Grazier, Dr. Weed, Dr. McIntyre, Dr. Sweetland, 12 and Chief Medical Officer (“CMO”) Greenough. (Doc. 17.) On October 12, 2007, the case was 13 reassigned from Magistrate Judge Dennis L. Beck to Magistrate Judge Gary S. Austin, as case 14 number 1:06-cv-00011-LJO-GSA-PC. (Doc. 19.) The Court screened the First Amended Complaint 15 pursuant to 28 U.S.C. § 1915A and found that plaintiff stated cognizable claims only against 16 defendants Harbinson, Weed, McIntyre, and Sweetland, on his Eighth Amendment medical care 17 claim and his state law medical malpractice claim. (Doc. 21.) On November 21, 2008, the Court 18 issued an order requiring plaintiff either to file a Second Amended Complaint or to notify the Court 19 in writing that he does not want to file an amended complaint and instead wishes to proceed on the 20 First Amended Complaint on the claims found cognizable by the Court. Id. On December 15, 2008, 21 plaintiff filed written notice that he did not wish to file an amended complaint and was willing to 22 proceed with the claims found cognizable by the Court. (Doc. 22.) On January 27, 2009, the Court 23 directed the U.S. Marshal to serve process upon defendants Harbinson, Weed, McIntyre, and 24 Sweetland. (Doc. 28.) On April 28, 2009, defendant Weed filed a motion to dismiss. (Doc. 36.) 25 On May 6, 2009, defendants McIntyre and Harbinson filed a motion to dismiss. (Doc. 38.) On June 26 12, 2009, the U.S. Marshal filed a return of service unexecuted as to defendant Sweetland. (Doc. 27 48.) Defendant Sweetland has not appeared in this action. 28 /// 7 1 Plaintiff’s Allegations and Claims Against Dr. Weed in Case 1:06-cv-00011 2 Plaintiff alleges in the First Amended Complaint that on April 23, 2004, while he was 3 incarcerated at Avenal State Prison, he was bitten by a mouse or rat on his right hand. Plaintiff 4 alleges that on May 8, 2004, Dr. Weed, a doctor at Avenal State Prison, gave plaintiff an EKG and 5 then refused to treat plaintiff despite his complaints of pain, suffering, and swelling. Plaintiff alleges 6 that Dr. Weed then ordered another officer to return plaintiff to his housing cell in administrative 7 segregation. Plaintiff claims that Dr. Weed was deliberately indifferent to his medical needs, in 8 violation of the Eighth Amendment. 9 III. MOTION TO DISMISS 10 Defendant Weed brings a motion to dismiss this action against him under Rule 12(b)(6), 11 based on the doctrines of res judicata and collateral estoppel.3 Defendant Weed argues that this 12 action against him must be dismissed because the complaint for this action (1:06-cv-00011-AWI- 13 GSA-PC)(“Case 0011") states identical allegations against him as found in the complaint for 14 Plaintiff’s consolidated action (1:06-cv-01025-AWI-SMS-PC)(“Case 1025") which was dismissed 15 by Judge Snow on January 19, 2009, for failure to state a claim. 16 In opposition, plaintiff argues that defendant Weed’s argument basing res judicata and 17 collateral estoppel on Judge Snow’s order is flawed, because Judge Snow’s order is barred by res 18 judicata. Plaintiff presents evidence that on November 21, 2008, the Court issued an order in Case 19 0011 finding that plaintiff’s complaint states cognizable claims for relief under section 1983 against 20 Dr. Weed for inadequate medical care under the Eighth Amendment. Plaintiff argues that the earlier 21 November 21, 2008 order in Case 0011 finding cognizable claims bars Judge Snow’s subsequent 22 January 19, 2009 order in Case 1025 finding failure to state a claim. Plaintiff also argues that 23 defendant Weed’s theory of res judicata is inapplicable because Case 0011 was filed before Case 24 1025, and Case 1025 should have been “swallowed up” by Case 0011 prior to Judge Snow’s holding, 25 making any such holding moot. 26 27 28 3 In the motion to dismiss, defendant W eed uses the term “res judicata” to mean “claim preclusion,” and the term “collateral estoppel” to mean “issue preclusion.” 8 1 IV. DISCUSSION 2 The Court has thoroughly reviewed the First Amended Complaint for Case 1025 and the 3 Second Amended Complaint for Case 0011. Both complaints were filed by the same plaintiff, 4 Robert Maeshack, CDC# C-15018, a state prisoner who was incarcerated at Avenal State Prison. 5 Both complaints name Dr. Weed, a medical doctor employed at Avenal State Prison, as one of the 6 defendants. There is no dispute between the parties that Robert Maeshack and Dr. Weed are the 7 same persons named in both complaints. Therefore, the requirement of privity between the parties 8 is satisfied. 9 Both complaints allege that on April 23, 2004, while he was incarcerated at Avenal State 10 Prison, plaintiff was bitten by a mouse or rat. Both complaints allege that on May 8, 2004, Dr. Weed 11 refused to provide medical treatment to plaintiff for a serious medical condition. Plaintiff claims in 12 both complaints that Dr. Weed violated his rights to adequate medical care under the Eighth 13 Amendment. Although the Court disagrees with defendant Weed’s statement that the allegations 14 are “identical” in both complaints, the Court finds that plaintiff has raised the same claim or cause 15 of action against Dr. Weed in both actions. Since the doctrine of res judicata bars all grounds for 16 recovery which could have been asserted on the same cause of action, whether they were or not, it 17 is of no consequence that plaintiff offers additional facts in Case 0011, alleging that his bitten hand 18 was swollen with blood on it, that Dr. Weed gave plaintiff an EKG, and that Dr. Weed ordered a 19 correctional officer to take plaintiff back to his housing cell in Administrative Segregation without 20 further treatment. Both of the lawsuits did “arise out of the same transactional nucleus of facts”: 21 defendant Weed’s alleged denial of medical treatment to plaintiff for a mouse or rat bite. The only 22 significant difference is that plaintiff described his injuries and symptoms in case 0011 and alleged 23 that Dr. Weed ordered him returned to his cell without further treatment after administering an EKG. 24 This evidence is not enough to establish that the two lawsuits arise out of a different “transactional 25 nucleus of facts.” The other criteria for finding a single cause of action are also met. Clearly, Dr. 26 Weed’s freedom from liability for denial of treatment to plaintiff, established in Case 1025, could 27 be impaired if Case 0011 is permitted to go forward. Plaintiff did not offer any evidence in Case 28 0011 which he did not possess when he brought Case 1025; the two cases were originally filed only 9 1 one day apart on December 22 and 23, 2005. Finally, the two suits involve infringement of the same 2 right: both lawsuits seek damages from Dr. Weed for violation of plaintiff’s constitutional right to 3 adequate medical care. Thus, the cause of action against Dr. Weed involved in both lawsuits is 4 identical for purposes of res judicata. 5 The final question is whether the judgment in Case 1025 was a judgment on the merits. As 6 defendant Weed points out, Judge Snow amply reviewed plaintiff’s Second Amended Complaint in 7 Case 1025 and determined that plaintiff failed to state a cause of action for violation of his rights to 8 adequate medical care under the Eighth Amendment. With regard to Dr. Weed, Judge Snow found 9 that plaintiff failed to provide information about the nature and severity of his injuries, which made 10 it impossible for the Court to determine whether plaintiff had serious medical needs. Judge Snow 11 also found that plaintiff failed to describe what injury, if any, resulted from Dr. Weed’s failure to 12 provide him with medical care. Thus, the judgment in Case 1025 was a judgment on the merits. 13 Plaintiff’s arguments are without merit because the Court’s November 21, 2008 order in Case 14 0011 finding cognizable claims was not a judgment on the merits, and because the court is not 15 required under Rule 42 to consolidate actions pending before the court where such actions involve 16 a common question of law or fact.4 Fed. R. Civ. P. 42(a). 17 Based on this analysis, the Court finds that defendant Weed has demonstrated that the 18 doctrine of res judicata prohibits the re-litigation of plaintiff’s claims against defendant Weed in 19 Case 0011, which were previously decided on their merits in Case 1025. 20 V. Conclusion and Recommendation 21 For the reasons set forth herein, IT IS HEREBY RECOMMENDED that defendant Weeds’ 22 motion to dismiss plaintiff’s claims against him, filed April 28, 2009, be GRANTED, and defendant 23 Weed be DISMISSED from this action, with prejudice, for plaintiff’s failure to state a claim against 24 him, based on the doctrine of res judicata. 25 /// 26 27 28 4 Rule 42(a) provides, “W hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Fed. R. Civ. P. 42(a) (emphasis added). 10 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 3 days after being served with these Findings and Recommendations, plaintiff may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 9 10 IT IS SO ORDERED. Dated: 6i0kij January 20, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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