(PC) Thomas v. Rene Wilkinson , et al, No. 1:2015cv00527 - Document 49 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS, Recommending That Defendant Tehrani's Rule 12(b)(6) Motion to Dismiss the Claims Against Her as Barred By Statute of Limitations Be Granted 31 , signed by Magistrate Judge Gary S. Austin on 2/10/17: 30-Day Deadline. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSH THOMAS, 12 Plaintiff, 13 14 vs. WILKINSON, et al., 15 Defendants. 16 1:15-cv-00527-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANT TEHRANI’S RULE 12(b)(6) MOTION TO DISMISS THE CLAIMS AGAINST HER AS BARRED BY STATUTE OF LIMITATIONS BE GRANTED (ECF No. 31.) OBJECTIONS, IF ANY, DUE WITHIN 30 DAYS 17 18 19 I. BACKGROUND 20 Josh Thomas (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 21 pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint commencing this action on April 22 21, 2014, at the Fresno County Superior Court, case number 14CECG01710. (ECF No. 2, Exh. 23 A.) On April 2, 2015, defendant Jasmine A. Tehrani removed the complaint to federal court 24 pursuant to 28 U.S.C. 1441(a). (ECF No. 2.) This case now proceeds on the original complaint 25 against defendants Jasmine A. Tehrani and Renee Wilkinson, Ph.D.1 (“Defendants”) on 26 Plaintiff’s Eighth Amendment deliberate indifference claim and related state claims. (Id.) 27 28 1 Sued as “Rene Wilkinson.” (ECF No. 41 at 1:23-34.) 1 1 On January 19, 2016, the court dismissed Plaintiff’s complaint as barred by the 2 favorable termination doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). (ECF No. 15.) 3 Plaintiff appealed the dismissal to the Ninth Circuit Court of Appeals. (ECF Nos. 18, 23.) The 4 parties conferred and agreed that Plaintiff’s complaint was not Heck-barred and filed a 5 stipulated motion to dismiss the appeal in the Ninth Circuit. Subsequently the parties filed a 6 joint motion in the district court to vacate the judgment and modify the dispositive order. (ECF 7 Nos. 25-27.) On July 28, 2016, the district court granted the parties’ joint motion, reopened the 8 case and ordered defendant Tehrani to file a responsive pleading within thirty days. (ECF No. 9 28.) 10 On August 29, 2016, defendant Tehrani filed a Rule 12(b)(6) motion to dismiss the 11 complaint on the grounds that: (1) Plaintiff’s claims are barred by the applicable statute of 12 limitations; (2) Plaintiff’s claims are barred by the doctrine of res judicata; and (3) Plaintiff 13 failed to exhaust his state law claims with the California Victim Compensation and 14 Government Claims Board pursuant to the Tort Claims Act (Cal. Gov’t Code §§ 810, 900- 15 935.7). (ECF No. 31.) On September 23, 2016, Plaintiff filed an opposition to the motion. 16 (ECF No. 35.) On September 29, 2016, defendant Tehrani filed a reply to the opposition. 17 (ECF No. 36.) Defendant Tehrani requests that if the court grants her motion to dismiss, the 18 dismissal count as a “strike” for purposes of 28 U.S.C. § 1915(g). 19 Defendant Wilkinson also filed a motion to dismiss on November 11, 2016, pursuant to 20 Federal Rules of Civil Procedure Rule 12(b)(1) and Rule 12(b)(6) on the following grounds: 21 that Dr. Wilkinson is immune from suit based upon the doctrine of quasi-judicial immunity and 22 California Civil Code section 47(b) and 47(c), and because the Complaint fails to state a claim 23 upon which relief can be granted. (ECF No. 43.) Defendant Wilkinson also requested leave to 24 join in defendant Tehrani’s motion to dismiss. (Id.) Defendant Wilkinson’s separate motion 25 and joinder in this motion will be addressed in a later and separate ruling given that Plaintiff 26 has been granted an extension of time to respond to her motions. Defendant Tehrani’s motion to dismiss is now before the court. Local Rule 230(l). 27 28 /// 2 1 /// 2 II. SUMMARY OF PLAINTIFF’S ALLEGATIONS 3 Plaintiff is a currently incarcerated at the California Medical Facility in Vacaville, 4 California. The events at issue occurred while Plaintiff was incarcerated at the California 5 Substance Abuse Treatment Facility in Corcoran, California, in the custody of the California 6 Department of Corrections and Rehabilitation. 7 Plaintiff alleges that Defendants refused to correct inaccurate information in Plaintiff’s 8 psychological evaluation report which led to the repeated denial of his parole. Plaintiff points 9 to the following portion of his evaluation, which erroneously contains information about 10 another inmate named Carranza (Inmate Carranza), discussing Inmate Carranza’s history of 11 violence and substance abuse: 12 13 14 15 16 17 18 Mr. Carranza’s elevated “historical” variables included previous violence (i.e., life crime), and substance abuse problems (i.e., PCP abuse). There was one moderately elevated item on relationship instability. Given that the bulk of data contributing to this estimate is historical, then by definition, this score is not amenable to significant change regardless of the number of years of his incarceration. In the “clinical” or more current and dynamic domain of risk assessment score, the inmate had one moderate elevation on lack of insight due to his problems with perceiving his flaws and failures and his tendency to divert responsibility to external events and others. (ECF No. 2-1, at 17.) 19 Plaintiff alleges that the Board of Parole Hearings (Board) and Plaintiff’s attorney 20 determined that the mistake caused serious prejudice at Plaintiff’s parole hearing, thus the 21 hearing was postponed. 22 Plaintiff next alleges that he and the Board gave notice to defendant Tehrani, Senior 23 Psychologist and defendant Wilkinson’s supervisor, that defendant Wilkinson made an 24 erroneous reference to another inmate and inserted the other inmate’s (Inmate Carranza) data 25 into Plaintiff’s evaluation, “with no result.” (ECF No. 2-1, at 6.) Plaintiff states that he 26 requested that Inmate Carranza’s information be removed from the report. 27 On January 28, 2009, defendant Tehrani responded to Plaintiff’s request finding that the 28 error did not invalidate the report. Defendant Tehrani said that the typing error had been 3 1 corrected and a revised copy of the report was submitted. She concluded, “The January 2008 2 Psychological Evaluation is valid and will serve as the evaluation on record at the time of the 3 upcoming hearing. A new Psychological Evaluation is not warranted.”2 (ECF No. 2-1, at 21.) 4 Plaintiff argues that defendant Wilkinson then generated the same report, and while he removed 5 Inmate Carranza’s name, Inmate Carranza’s data was left in the report. The Board relied on 6 this report to deny Plaintiff parole. Plaintiff alleges that each time he has a parole hearing the 7 Board reviews Inmate Carranza’s data causing Plaintiff to be denied a parole date. 8 Moreover, as a result of the commingling of data, Plaintiff believes that the Board 9 recommended mental health therapy for Plaintiff. Plaintiff filed a grievance requesting such 10 therapy, but the request was denied. (ECF No. 2-1, at 35-36.) 11 Finally, Plaintiff contends that defendants Wilkinson and Tehrani not only falsified his 12 psychological evaluation report, which the Board relied on to deny parole and order mental 13 health therapy, but “knowingly, willingly and intentionally refused to generate a new 14 Psychological Evaluation Report,” despite a request by the Board and Plaintiff on two 15 occasions. (ECF No. 2-1, at 8.) 16 Based on these allegations, Plaintiff contends that his Fourth, Fifth, and Eighth 17 Amendment rights were violated. He also alleges state law claims for negligence and 18 “intentional tort,” and alleges that Defendants falsified his report in violation of California 19 Penal Code sections 133 and 134. 20 21 Plaintiff requests $2,500,000 dollars in damages. III. LEGAL STANDARDS 22 A. 23 In considering a motion to dismiss, the court must accept all allegations of material fact 24 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 25 1081 (2007); Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 Rule 12(b)(6) Motion To Dismiss For Failure To State A Claim 26 27 28 2 Defendant Tehrani also explained as follows: “The facts and references made in the report are individualized and specific to Mr. Thomas; there is no evidence to suggest that the evaluator commingled the records from two different inmates. The opinions and conclusions, including those pertaining to diagnoses and violence risk potential, are clearly supported by data gleaned from Mr. Thomas’ file.” (ECF No. 2-1, at 21.) 4 1 L.Ed.2d 338 (1976). The court must also construe the alleged facts in the light most favorable 2 to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), 3 overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 4 (1984); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or 5 doubts must also be resolved in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 6 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). However, legally conclusory statements, not 7 supported by actual factual allegations, need not be accepted. Ashcroft v. Iqbal, 556 U.S. 662, 8 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). In addition, pro se pleadings are held to a 9 less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520, 10 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). “The issue is not whether a plaintiff will ultimately 11 prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer, 12 416 U.S. at 236. 13 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain 14 statement of the claim showing that the pleader is entitled to relief” in order to “give the 15 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 16 Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) 17 (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). However, in 18 order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must 19 contain more than “a formulaic recitation of the elements of a cause of action;” it must contain 20 factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555– 21 56. The complaint must contain “enough facts to state a claim to relief that is plausible on its 22 face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that 23 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 24 alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability 25 requirement,’ but it asks for more than a sheer possibility that a defendant has acted 26 unlawfully.” Id. at 679 (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts 27 that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 28 possibility and plausibility for entitlement to relief.” Id. at 680 (quoting Twombly, 550 U.S. at 5 1 557). 2 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 3 outside the complaint and pleadings. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 4 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 5 documents whose contents are alleged in or attached to the complaint and whose authenticity 6 no party questions, see id. at 454; (2) documents whose authenticity is not in question, and 7 upon which the complaint necessarily relies, but which are not attached to the complaint, see 8 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and 9 materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 10 (9th Cir. 1994). 11 IV. DEFENDANT TEHRANI’S MOTION TO DISMISS 12 Defendant Tehrani argues that this case should be dismissed on the grounds that: (1) 13 Plaintiff’s claims are barred by the applicable statute of limitations; (2) Plaintiff’s claims are 14 barred by the doctrine of res judicata; and (3) Plaintiff failed to exhaust his state law claims 15 with the California Victim Compensation and Government Claims Board pursuant to the Tort 16 Claims Act (Cal. Gov’t Code §§ 810, 900-935.7). (ECF No. 31.) 17 A. 18 Under Federal Rule of Evidence 201(b), “The court may judicially notice a fact that is 19 not subject to reasonable dispute because it: (1) is generally known within the trial court’s 20 territorial jurisdiction; or (2) can be accurately and readily determined from sources whose 21 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); accord United States v. 22 Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003). “A court shall take judicial notice if requested 23 by a party and supplied with the necessary information.” Id. at 201(c). “[A] court may take 24 judicial notice of its own records.” U.S. v. Author Svcs., Inc., 804 F.2d 1520, 1522 (9th Cir. 25 1986); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n. 6 (9th Cir. 2006); 26 Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of 27 proceedings in other courts, both within and without the federal judicial system, if those 28 proceedings have a direct relation to matters at issue”) (internal quotation omitted). Request for Judicial Notice 6 1 Additionally, a court “may take judicial notice of a record of a state agency not subject to 2 reasonable dispute.” City of Sausalito v. O'Neill, 386 F.3d 1186, 1223 n. 2 (9th Cir. 2004); 3 Evans v. CSP Sacramento, No. CIV S-10-1969, 2011 WL 4738472 at *4 (E.D. Cal. Oct. 5, 4 2011) (declaration from VCGCB’s custodian of records that inmate had not filed a claim 5 subject to judicial notice). 6 Defendant requests the court to take judicial notice of the following exhibits: 7 1. Exhibit A contains true and correct copies of the following docket events from 8 the case Thomas v. California Board of Parole Hearing Commissioners, et al., 9 No. 1:10-cv-00035-OWW-MJS (E.D. Cal. Jan. 14, 2011) (Ex. A at AGO.001- 10 111): 11 a. PACER Docket Sheet (Ex. A at AGO.001-006.) 12 b. Excerpts from “Petition Under 28 U.S.C. § 2254 for Writ of Habeas 13 Corpus by a Person in State Custody,” filed January 7, 2010 by Josh 14 Thomas. (Ex. A at AGO.007-093.) 15 c. Dismiss.” (Ex. A at AGO.094-108.) 16 17 d. 18 “Order Adopting Findings and Recommendations.” (Ex. A at AGO.109110.) 19 e. 20 21 “Findings and Recommendations Regarding Respondent’s Motion to Order from the United States Court of Appeals for the Ninth Circuit, denying certificate of appealability. (Ex. A at AGO.111.) 2. Exhibit B is a true and correct copy of the Declaration of Katrina De Caro, 22 Custodian of Records, California Victim Compensation and Government Claims 23 Board (VCGCB), dated April 2, 2015. (Ex. B at AGO.112-114.) 24 (Req. for Judicial Notice, ECF No. 31-2 at 1-2.) 25 The court finds that Exhibit A consists of court records relevant to this case. Such 26 documents are readily capable of judicial notice. The documents in Exhibit B, which pertain to 27 Plaintiff’s exhaustion efforts at the VCGCB, are part of a state administrative proceeding and 28 may also be judicially noticed. These documents are relevant to the court’s determination of 7 1 /// 2 the exhaustion issue in defendant Tehrani’s motion to dismiss. Therefore, the court shall grant 3 Defendant’s request for judicial notice. 4 5 B. Statute of Limitations 1. Legal Standard 6 In federal court, federal law determines when a claim accrues, and “under federal law, a 7 claim accrues ‘when the plaintiff knows or has reason to know of the injury which is the basis 8 of the action.’” Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 9 2008) (quoting Two Rivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Fink v. Shedler, 192 10 F.3d 911, 914 (9th Cir. 1999)). In the absence of a specific statute of limitations, federal courts 11 should apply the forum state’s statute of limitations for personal injury actions. Lukovsky, 535 12 F.3d at 1048; Jones v. Blanas, 393 F.3d 918, 927 (2004); Fink, 192 F.3d at 914. California's 13 two-year statute of limitations for personal injury actions applies to 42 U.S.C. § 1983 claims. 14 See Jones, 393 F.3d at 927. California’s statute of limitations for personal injury actions 15 requires that the claim be filed within two years. Cal. Code Civ. Proc., § 335.1. 16 In actions where the federal court borrows the state statute of limitations, the court 17 should also borrow all applicable provisions for tolling the limitations period found in state 18 law. See Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 2000 (1989). Pursuant to 19 California Code of Civil Procedure, § 352.1, a two-year limit on tolling is imposed on 20 prisoners. Section 352.1 provides, in pertinent part, as follows: 21 22 23 24 25 (a) If a person entitled to bring an action, . . . is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years. Cal. Code Civ. Proc., § 352.1. 26 The equitable tolling doctrine also tolls the statute of limitations while exhaustion 27 occurs. Donoghue v. County of Orange, 848 F.2d 926, 930-31 (9th Cir. 1988); Addison v. 28 State of California, 21 Cal.3d 313, 318 (1978). Additionally, whether an inmate is entitled to 8 1 equitable tolling is decided by state law except to the extent that it is inconsistent with federal 2 law. Jones, 393 F.3d at 927. Under California law, equitable tolling is available where there is 3 “timely notice, and lack of prejudice to the defendant, and reasonable and good faith conduct 4 on the part of the plaintiff.” Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1132 5 (9th Cir. 2001) (quoting Addison, 21 Cal.3d at 319). Equitable tolling applies “to suspend or 6 extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” 7 Jones, 393 F.3d at 927 (quoting Lantzy v. Centex Homes, 31 Cal.4th 363, 370 (2003)). 8 Application of equitable tolling “requires a balancing of the injustice to the plaintiff occasioned 9 by the bar of his claim against the effect upon the important public interest or policy expressed 10 by the . . . limitations statute.” Jones, 393 F.3d at 927 (quoting Lantzy, 31 Cal.4th at 371)). 11 2. Defendant’s Motion 12 Defendant argues that Plaintiff failed to comply with the applicable statute of 13 limitations. Defendant contends that Plaintiff’s § 1983 claim accrued on January 29, 2008, the 14 date Plaintiff knew or had reason to know of the injury which formed the basis of his 15 complaint, and therefore Plaintiff was required to file his complaint at the latest by January 29, 16 2012, four years after his claim accrued. (ECF No. 2-1 at 6.) Instead, Plaintiff filed his 17 complaint in Fresno County Superior Court on April 21, 2014, more than six years later. (ECF 18 No. 2-1 at 2.) Defendant asserts there is nothing in the complaint to indicate that Plaintiff 19 should be entitled to exhaustion-based equitable tolling, and with respect to the state claims, 20 Plaintiff is not entitled to equitable tolling because he did not file a claim with the VCGCB. 21 Plaintiff argues that Defendant is wrong because section 1983 does not contain a statute 22 of limitations. 23 Complaint. Plaintiff also alleges that his injury was “ongoing” and he suffered damages from 24 January 8, 2008 through 2010. Plaintiff alleges that he was under imminent danger when he filed the 25 Defendant acknowledges that section 1983 does not contain its own statute of 26 limitations, but asserts that under California state law, the federal court applies California’s 27 four-year statute of limitations for personal injury. Defendant argues that since Plaintiff did not 28 file his lawsuit until April 21, 2014, his claim is barred by the applicable statute of limitations. 9 1 Defendant also argues that Plaintiff is not excused from the statute of limitations because of an 2 imminent danger exception. Defendant also contends that Plaintiff has not cited any statute or 3 case law to support this exception, and Defendant is not aware of any such exception to 4 California’s statute of limitations for personal injury suits. Defendant also asserts that Plaintiff 5 has not identified any imminent physical injury, and Plaintiff’s claim that his situation has been 6 ongoing for over eight years belies his claim that any danger was “imminent.” 7 3. Discussion 8 As discussed above, “under federal law, a claim accrues ‘when the plaintiff knows or 9 has reason to know of the injury which is the basis of the action.’” Lukovsky, 535 F.3d at 10 1048. “A claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the 11 applicable statute of limitations only when ‘the running of the statute is apparent on the face of 12 the complaint.’” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 13 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006)). 14 “‘[A] complaint cannot be dismissed unless it appears beyond doubt that the plaintiff can prove 15 no set of facts that would establish the timeliness of the claim.’” Von Saher, 592 F.3d at 969 16 (quoting Supermail Cargo, Inc. v. U.S., 68 F.3d 1204, 1206 (9th Cir. 1995)). “[W]here the 17 issue of limitations requires determination of when a claim begins to accrue, the complaint 18 should be dismissed only if the evidence is so clear that there is no genuine factual issue and 19 the determination can be made as a matter of law.” Sisseton-Wahpeton Sioux Tribe v. United 20 States, 895 F.2d 588, 591 (9th Cir. 1990); In re Swine Flu Prod. Liab. Litig., 764 F.2d 637, 638 21 (9th Cir. 1985); Lundy v. Union Carbide Corp., 695 F.2d 394, 397-98 (9th Cir.1982). 22 Here, the Court finds that the running of the limitations period is apparent on the face of 23 Plaintiff’s Complaint. The Complaint alleges that defendant Tehrani “caused the damage to 24 Plaintiff on January 29, 2008, at [a] Board of Parole Hearing,” when a psychological evaluation 25 report for Plaintiff was used even though another inmate’s records had been erroneously 26 commingled with Plaintiff’s records. 27 allegations, it appears that the statute of limitations began to run on January 29, 2008. Plaintiff 28 did not file this lawsuit until more than seven years later, on April 21, 2014. Even if Plaintiff’s (Complaint, ECF No 2-1 at 6.) 10 Based on these 1 /// 2 claim did not accrue until he was denied parole in February 2008, on the face of the complaint, 3 Plaintiff’s claims against defendant Tehrani are still barred. 4 Plaintiff’s argument that he was under “imminent danger” when he filed the complaint 5 and is therefore entitled to tolling of the limitations period is unavailing. The Court knows of 6 no such exception to the running of the statute of limitations for personal injury, and as noted 7 by Defendant, Plaintiff has not cited any statute or case law to support this exception. 8 Plaintiff’s argument that he is not subject to the statute because his injury was “ongoing” is 9 unpersuasive. Plaintiff fails to support this argument except to claim that his “damages 10 continue from January 8, 2008 – 2010.” (ECF No. 35 at 6.) Plaintiff appears to argue that 11 because his damages continued until 2010, his Complaint was timely filed in 2014. However, 12 because a personal injury claim accrues when the plaintiff knows of the injury, and Plaintiff 13 alleges in the Complaint that defendant Tehrani “caused the damage to Plaintiff on January 29, 14 2008,” this argument fails. 15 Here, it appears beyond doubt that Plaintiff cannot prove any set of facts that would 16 establish the timeliness of his claim. Therefore, Plaintiff’s Complaint should be dismissed as 17 barred by the statute of limitations. 18 19 C. Res Judicata 1. Legal Standard 20 The doctrine of res judicata bars the re-litigation of claims previously decided on their 21 merits. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005). Under the 22 doctrine of claim preclusion, a final judgment on the merits of an action precludes the parties or 23 persons in privity with them from litigating the same claim that was raised in that action and all 24 claims arising out of the same transaction or occurrence. See Taylor v. Sturgell, 128 S.Ct. 25 2161, 2171 (2008); Rest.2d Judgments § 18. AThe elements necessary to establish res judicata 26 are: >(1) an identity of claims, (2) a final judgment on the merits, and (3) privity between 27 parties.=@ Headwaters, Inc., 399 F.3d at 1052 (quoting Tahoe-Sierra Pres. Council, Inc. v. 28 Tahoe Reg=l Planning Agency, 322 F.2d 1064, 1077 (9th Cir. 2003)). A[T]he doctrine of res 11 1 judicata (or claim preclusion) >bars all grounds for recovery which could have been asserted, 2 whether they were or not, in a prior suit between the same parties . . . on the same cause of 3 action.=@ Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982) (quoting 4 Ross v. IBEW, 634 F.2d 453, 457 (9th Cir. 1980) (emphasis added)). 5 When determining, for res judicata purposes, whether a present dispute concerns the 6 same claims as did prior litigation, the Ninth Circuit considers: "(1) whether rights or interests 7 established in the prior judgment would be destroyed or impaired by prosecution of the second 8 action; (2) whether substantially the same evidence is presented in the two actions; (3) whether 9 the two suits involve infringement of the same right; and (4) whether the two suits arise out of 10 the same transactional nucleus of facts", which is the most important factor. Headwaters, Inc., 11 399 F.3d at 1052. A prior federal habeas decision may have preclusive effect in a separate 12 section 1983 action. Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir. 1993). 13 A defendant relying on res judicata as a defense must plead it as an affirmative defense. 14 Blonder-Tongue Laboratories, Inc. v. University of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 15 1434, 1453 (1971). However, "if a court is on notice that it has previously decided the issue 16 presented, the court may dismiss the action sua sponte, even though the defense has not been 17 raised," Arizona v. California, 530 U.S. 392, 416, 120 S.Ct. 2304, 2318 (2000), provided that 18 the parties have an opportunity to be heard prior to dismissal, Headwaters, Inc., 399 F.3d at 19 1055. "As a general matter, a court may, sua sponte, dismiss a case on preclusion grounds 20 'where the records of that court show that a previous action covering the same subject matter 21 and parties had been dismissed.'" Id. at 1054-1055 (quoting Evarts v. W. Metal Finishing Co., 22 253 F.2d 637, 639 n. 1 (9th Cir. 1958)). 23 2. Defendant’s Motion 24 Defendant argues that the elements necessary to establish res judicata were satisfied 25 when Plaintiff’s federal petition for habeas corpus, Thomas v. California Board of Parole 26 Hearing Commissioners, et al., case number 1:10-v-00035-OWW-MJS (E.D. Cal., Jan. 14, 27 2011), filed on June 7, 2010, was denied, and as a result, Plaintiff is barred from bringing the 28 present § 1983 case. 12 1 /// 2 Shared Identity of Claims 3 Defendant argues that the habeas petition and the present case arise out of the same 4 nucleus of facts because Plaintiff argued in both cases that “Dr. Wilkinson’s l[a]ck of insight 5 opinion confl[i]cts with other psychologists’ insight opinion [and] as [a] result[] petitioner’s 6 parole hearing was prejudice[d].” 7 AGO.056.) 8 “evaluation report . . . contained false information,” including “information [that] appl[ied] to 9 Mr. Carranza, not petitioner.” (Id.) Defendant asserts that likewise here, Plaintiff claims that (Req. for Judicial Notice, ECF No. 31-2, Exh. C at Defendant asserts that Plaintiff pointed to the fact that his January 2008 10 Rene Wilkinson erroneously inserted a damaging paragraph concerning Mr. Carranza into 11 Plaintiff’s psychological report, and that the error prejudiced him at his parole hearing, 12 resulting in denial of parole. (Id. at 4, 7.) 13 Defendant asserts that Plaintiff also attached substantially the same evidence to both his 14 habeas petition and the complaint in this case, including the January 2008 Board of Parole 15 Hearings psychological evaluation report containing the erroneous reference to “Mr. Carranza.” 16 (Compare ECF No. 2-1 at 17 with Defendant’s Req. for Judicial Notice, Exh. A at AGO.088.) 17 Defendant argues that Plaintiff’s two suits both involve the infringement of the same 18 right: in the present case, Plaintiff alleges a “Loss of Liberty,” (ECF No. 2-1 at 3), and in the 19 habeas petition Plaintiff alleged that “Ms. Wilkinson’s opinion cause[d] petitioner to suffer 20 prejudice . . . [and] petitioner’s due process have and continue to be violated.” (Req. for 21 Judicial Notice, Exh. A at AGO.060.) 22 In addition, Defendant argues that because the habeas petition was denied, the Board of 23 Parole Hearing’s interests would be impaired if defendant Tehrani, an employee of the Board, 24 were forced to defend a lawsuit involving the exact same claims. 25 Final Judgment on the Merits 26 Defendant argues that Plaintiff’s habeas petition reached a final adjudication on the 27 merits, asserting that in Plaintiff’s habeas case, the district court denied Plaintiff’s petition for 28 writ of habeas corpus, finding, inter alia, that Plaintiff’s “claims regarding his 2008 parole 13 1 hearing [were] not cognizable” in light of Swarthout v. Cooke, 131 S. Ct. 859 (2001). (Req. 2 Judicial Notice at AGO.110.) Plaintiff appealed, but the Ninth Circuit denied his certificate of 3 appealability. (Id. at AGO.111.) 4 Privity 5 Defendant argues that the present case and the habeas petition involve parties in privity, 6 because respondents in the habeas petition and defendant Tehrani are all employees of Board of 7 Parole Hearings. Defendant asserts that the respondents to Plaintiff’s habeas petition were the 8 Board of Parole Hearings Commissioners and Ken Clark, a CDCR Warden, and here, 9 defendant Tehrani is a Senior Psychologist for the Board. 10 3. Plaintiff’s Opposition 11 Plaintiff argues that res judicata does not apply because the habeas petition does not 12 share identity of claims with the present case; the habeas decision was not a final decision on 13 the merits; and defendant Tehrani was not a party in the habeas case. 14 Identity of Claims 15 Plaintiff argues that because the claim at issue in the habeas petition was a due process 16 claim, and the claim in the present case is an Eighth Amendment claim, the two cases do not 17 share identity of claims. Plaintiff asserts that the judgment in the habeas case denied his due 18 process claims as noncognizable, whereas here, he brings completely different claims. 19 Final Judgment on the Merits 20 Plaintiff argues that the habeas petition did not reach a final adjudication on the merits 21 of Plaintiff’s Eighth Amendment and state law claims, and therefore the denial of the habeas 22 petition on Plaintiff’s due process claim was not a final judgment on the merits of the claims 23 brought in the § 1983 case. 24 Privity 25 Plaintiff argues that the two cases do not involve the same parties or identity of parties 26 because defendant Tehrani was not a party in the habeas petition, and the petition did not make 27 reference to her name. Plaintiff asserts that the habeas action was against the Board of Parole 28 Hearings and Warden Ken Clark, whereas this case is against defendants Tehrani and 14 1 Wilkinson as individuals, so the parties are not the same. 2 4. Discussion 3 The court finds that Plaintiff’s Eighth Amendment claims against defendant Tehrani in 4 this § 1983 action are not barred by res judicata, because although identity of claims and 5 privity exist, the denial of Plaintiff’s petition for habeas corpus was not a final judgment on the 6 merits. 7 Identity of Claims 8 “Identity of claims exists when two suits arise from ‘the same transactional nucleus of 9 facts.’” Tahoe-Sierra Pres. Council, 322 F.3d at 1078 (quoting Owens v. Kaiser Found Health 10 Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001). Res judicata bars relitigation of all grounds of 11 recovery that were asserted, or could have been asserted, in a previous action between the 12 parties . . .” Tahoe-Sierra Pres. Council, 322 F.3d at 1078 (quoting United States ex rel. 13 Barajas v. Northrop Corp., 147 F.3d 905 (9th Cir.1998). 14 Here, there is a common transactional nucleus of facts in Plaintiff’s two cases. Both 15 cases arise from Plaintiff’s allegations that another inmate’s information was erroneously 16 inserted into Plaintiff’s psychological evaluation report which the Board considered at 17 Plaintiff’s parole hearing, resulting in denial of parole and violating Plaintiff’s constitutional 18 rights. Plaintiff’s federal habeas petition raised eight different grounds for relief, including a 19 claim that his January 2008 psychological evaluation report conflicted with previous reports 20 and prejudiced his February 2008 parole hearing. In the habeas petition, Plaintiff points out 21 that the report refers to a “Mr. Carranza,” potentially bringing the reliability of the report into 22 question. 23 mistaken information in his psychological report to deny him parole. Plaintiff asserted that the Board violated his due process rights by relying on 24 In this § 1983 case, Plaintiff proceeds on an Eighth Amendment deliberate indifference 25 claim against Defendants, based on their refusal to correct inaccurate information on Plaintiff’s 26 psychological report, which then led to the denial of Plaintiff’s parole at a hearing in February 27 2008. In the § 1983 case, Plaintiff alleges that in January 2008, defendant Wilkinson, a 28 contractor for the Board of Parole hearings, referred to another inmate, Inmate Carranza, and 15 1 included Inmate Carranza’s data in Plaintiff’s psychological evaluation report. Plaintiff alleges 2 that defendant Tehrani, defendant Wilkinson’s supervisor, was notified of the error and was 3 asked to remove the other inmate’s information from the report, which she did not do. Plaintiff 4 alleges that the Board then relied on the erroneous report to deny him parole at a February 2008 5 hearing. The court finds that Plaintiff’s two cases arise from the same collection of facts and 6 therefore, identity of claims exists. 7 Final Judgment on the Merits 8 Res judicata also requires a final judgment on the merits of Plaintiff’s habeas case. 9 There was no such final judgment here. Plaintiff’s due process claim in the habeas case was 10 not decided on the merits. Plaintiff’s claims concerning the February 2008 parole hearing were 11 denied as non-cognizable for lack of jurisdiction because of an intervening change in the law 12 due to the Supreme Court’s decision in Swarthout.3 (emphasis added.) A dismissal for lack of 13 jurisdiction generally is not a decision on the merits for res judicata purposes. Fed. R. Civ. P. 14 41(b). 15 Privity 16 Even when the parties are not identical, privity may exist if “there is ‘substantial 17 identity’ between parties, that is, when there is sufficient commonality of interest.” Tahoe- 18 Sierra Pres. Council, 322 F.3d at 1081 (quoting In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir. 19 1983) (citation omitted); see also Stratosphere Litigation, 298 F.3d at 1142 n. 3 (finding privity 20 when a party is “so identified in interest with a party to former litigation that he represents 21 precisely the same right in respect to the subject matter involved”) (citation omitted); Shaw v. 22 Hahn, 56 F.3d 1128, 1131–32 (9th Cir. 1995) (finding privity when the interests of the party in 23 the subsequent action were shared with and adequately represented by the party in the former 24 25 26 27 3 In 2011, the United States Supreme Court overruled a line of Ninth Circuit precedent that had supported habeas review in California cases involving denials of parole by the Board of Parole Hearings and/or the governor. See Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 861 (2011). The Supreme Court held that federal habeas jurisdiction does not extend to review of the evidentiary basis for state parole decisions. Magee v. Arnold, No. 2:15-CV-2318 GGH P, 2016 WL 1060203, at *2 (E.D. Cal. Mar. 17, 2016) 28 16 1 action); United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir. 1980) (“[A] ‘privy’ 2 may include those whose interests are represented by one with authority to do so.”)) “Courts 3 are no longer bound by rigid definitions of parties or their privies for purposes of applying 4 collateral estoppel or res judicata.” United States v. ITT Rayonier, Inc., 627 F.2d 996, 1003 5 (9th Cir. 1980). 6 Here, none of the parties are named in both actions. However, the defendants or 7 respondents in both actions share a relationship to the Bureau of Parole Hearings and share 8 each other’s interests. Defendants Wilkinson and Tehrani are both employees of the Board and 9 shared in causing the alleged injuries to Plaintiff, based on the same set of facts during which 10 the individual defendants acted in their roles as employees in the interest of the Board. 11 Defendants Wilkinson and Tehrani both had a significant interest in the outcome of the habeas 12 action, even if they were not named as parties. Therefore, the court finds that privity exists for 13 purposes of res judicata. 14 15 D. CALIFORNIA TORT CLAIMS ACT 1. Legal Standard 16 California’s Government Claims Act requires that a tort claim against a public entity or 17 its employees be presented to the California Victim Compensation and Government Claims 18 Board, formerly known as the State Board of Control, no more than six months after the cause 19 of action accrues. Cal. Gov. Code, §§ 900 et seq. Presentation of a written claim, and action 20 on or rejection of the claim are conditions precedent to suit. State v. Superior Court of Kings 21 County (Bodde), 32 Cal.4th 1234, 1245, 90 P.3d 116, 124, 13 Cal.Rptr.3d 534, 543 (2004); 22 Mangold v. California Pub. Utils. Comm=n, 67 F.3d 1470, 1477 (9th Cir. 1995). To state a tort 23 claim against a public employee, a plaintiff must allege compliance with the Government 24 Claims Act or an excuse for noncompliance. State v. Superior Court, 32 Cal.4th at 1245, 90 25 P.3d at 124, 13 Cal.Rptr.3d at 543; Mangold, 67 F.3d at 1477; Karim-Panahi v. Los Angeles 26 Police Dept., 839 F.2d 621, 627 (9th Cir. 1988). 27 28 2. Defendant’s Motion Defendant argues that Plaintiff failed to exhaust his state law claims with the California 17 1 Victim Compensation and Government Claims Board (VCGCB) as required under the 2 California Tort Claims Act.4 Defendant provides evidence that Plaintiff did not present his 3 state tort claims to the VCGCB prior to bringing suit. Defendant asserts that the VCGCB has 4 no record of Plaintiff presenting any claims regarding the January 2008 incident at issue in his 5 Complaint. 6 Plaintiff argues that because his claims in this action are not against the State itself or 7 against Defendants in their official capacity, and Plaintiff sought more than $25,000.00 in his 8 complaint, it would have been fruitless for Plaintiff to file a claim with the VCGCB. 9 Nonetheless, Plaintiff asserts that he did exhaust his state law claims by presenting a claim to 10 the VCGCB, and he provides evidence that his claim number G615306 was received by the 11 VCGCB on December 17, 2013, and rejected on December 23, 2013. (ECF No. 35, Appx. 12.) 12 Defendant replies that Plaintiff presents no evidence to show that claim number 13 G615306 to the VCGCB concerns the incident at issue in his Complaint. Defendant submits 14 evidence that the custodian of records of the VCGCB searched VCGCB’s records and was 15 unable to find any claims filed by Plaintiff concerning an incident in January 2008. Defendant 16 argues that even if Plaintiff did submit a relevant claim to the VCGCB on December 17, 2013, 17 that claim would be late because it was presented more than six months after the accrual of his 18 cause of action against defendant Tehrani. 19 3. Discussion 20 Defendant Tehrani is an employee of the Board of Parole Hearings which, as an agency 21 of the State of California, is a public entity. Therefore, for Plaintiff to state a tort claim against 22 defendant Tehrani, Plaintiff must allege compliance with the California Government Claims 23 Act (GCA). Cal. Govt. Code, §§ 900 et seq. 24 Plaintiff’s Complaint is silent as to whether or not he filed a government claim pursuant 25 26 27 4 The California Tort Claims Act is now known as the Government Claims Act. City of Stockton v. Superior Court, 42 Cal. 4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than California Tort Claims Act). 28 18 1 to the GCA, and Plaintiff’s evidence that he purportedly filed claim number G615306 with the 2 VCGCB on December 17, 2013, is not sufficient to show that Plaintiff filed a VCGCB claim 3 relevant to his claim in this § 1983 case against defendant Tehrani that meets the requirements 4 of the GCA. The court concurs with defendant Tehrani that Plaintiff presents no evidence to 5 show that his claim number G615306 to the VCGCB concerns the incident at issue in his 6 Complaint or that he timely filed a VCGCB claim no more than six months after accrual of the 7 claim. Plaintiff alleges in the Complaint that an erroneous report generated in January 2008 8 caused denial of parole at his parole hearing in February 2008. Accordingly, Plaintiff was 9 required to file a VCGCB claim, at the latest, no later than six months after his parole was 10 denied at the February 2008 parole hearing. Plaintiff has submitted no evidence that he did so, 11 or that he was excused from doing so. Therefore, the court finds that Plaintiff failed to exhaust 12 his remedies with the VCGCB, and therefore his state tort claims against defendant Tehrani 13 should be dismissed. 14 V. CONCLUSION AND RECOMMENDATION 15 The court has found that Plaintiff’s claims against defendant Tehrani in this action are 16 not barred by res judicata. However, the court finds that Plaintiff’s Eighth Amendment claims 17 against defendant Tehrani are barred by the statute of limitations, and Plaintiff’s state law 18 claims should be dismissed for Plaintiff’s failure to exhaust his remedies required by 19 California’s Government Claims Act.5 Therefore, defendant Tehrani’s Rule 12(b)(6) motion to 20 dismiss Plaintiff’s case should be granted as barred by the statute of limitations. 21 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 22 1. 23 24 Defendant Tehrani’s Rule 12(b)(6) motion to dismiss Plaintiff’s claims as barred by the statute of limitations, filed on August 28, 2016, be GRANTED; 2. The claims against defendant Tehrani be dismissed with prejudice for failure to 25 26 27 28 5 Moreover, once Plaintiff’s federal claims are dismissed, his state law claims fail. Although the court may exercise supplemental jurisdiction over state law claims, Plaintiff must first have a cognizable claim for relief under federal law. See 28 U.S.C. ' 1367. The Supreme Court has cautioned that Aif the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.@ United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). 19 1 state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure; and 2 3. 3 These Findings and Recommendations will be submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within 5 thirty (30) days after being served with these Findings and Recommendations, any party may 6 file written objections with the Court. The document should be captioned “Objections to 7 Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be 8 served and filed within ten days after service of the objections. The parties are advised that 9 failure to file objections within the specified time may result in the waiver of rights on appeal. 10 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 11 F.2d 1391, 1394 (9th Cir. 1991)). Defendant Tehrani be dismissed from this action. 12 13 14 15 IT IS SO ORDERED. Dated: February 10, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 20