(PS) Gray v. City of West Sacramento, No. 2:2010cv00784 - Document 3 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/3/2010 recommending that this action be dismissed with prejudice re 1 Complaint filed by Gary S. Gray. Objections to F&R due w/in 14 days. (Matson, R)
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(PS) Gray v. City of West Sacramento Doc. 3 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 GARY S. GRAY, 9 10 11 12 Plaintiff, vs. No. CIV S-10-0784 GEB GGH PS CITY OF WEST SACRAMENTO, Defendant. 13 FINDINGS AND RECOMMENDATIONS / 14 Plaintiff, proceeding in this action pro se, has requested leave to proceed in forma 15 pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 16 72-302(21), pursuant to 28 U.S.C. § 636(b)(1). 17 18 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. 19 The determination that plaintiff may proceed in forma pauperis does not complete 20 the required inquiry. Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss the case 21 at any time if it determines the allegation of poverty is untrue, or if the action is frivolous or 22 malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against 23 an immune defendant. 24 A claim is legally frivolous when it lacks an arguable basis either in law or in fact. 25 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 26 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an 1 Dockets.Justia.com 1 indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 2 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully 3 pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 4 Cir. 1989); Franklin, 745 F.2d at 1227. 5 A complaint must contain more than a “formulaic recitation of the elements of a 6 cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the 7 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). 8 “The pleading must contain something more...than...a statement of facts that merely creates a 9 suspicion [of] a legally cognizable right of action.” Id., quoting 5 C. Wright & A. Miller, Federal 10 Practice and Procedure 1216, pp. 235-235 (3d ed. 2004). “[A] complaint must contain sufficient 11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 12 v. Iqbal, ___ U.S.___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 13 S.Ct. 1955). “A claim has facial plausibility when the plaintiff pleads factual content that allows 14 the court to draw the reasonable inference that the defendant is liable for the misconduct 15 alleged.” Id. 16 Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519, 17 520-21, 92 S. Ct. 594, 595-96 (1972); Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th 18 Cir. 1988). Unless it is clear that no amendment can cure the defects of a complaint, a pro se 19 plaintiff proceeding in forma pauperis is entitled to notice and an opportunity to amend before 20 dismissal. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987); Franklin, 745 F.2d at 1230. 21 Plaintiff alleges that the City of West Sacramento is liable for “stopping all the 22 navigation from the Sacramento River to the William G. Stone locks to the ship channel to the 23 port West Sacramento.” His claim is that the City of West Sacramento constructed bridges that 24 prevent public access to the channel by means of the barge canal and its bascule bridge and locks, 25 thereby interfering with the public’s constitutional right to navigate these waters. (Compl. at 2.) 26 Plaintiff cites 42 U.S.C. § 1983, the Commerce Clause, the “Equal Footing Doctrine,” the state 2 1 and federal constitutions, the 1946 Bridges Act, and the Rivers and Harbors Act of 1899. 2 Plaintiff seeks $500,000,000 in damages. 3 The complaint for the most part alleges the same violations by defendant as 4 alleged previously in a complaint brought and decided in this court in 2008. See Gray v. The 5 City of West Sacramento, Civ.S.08-0433 MCE DAD PS. This related case concerned plaintiff’s 6 allegations of interference with navigation of the Sacramento River Deep Water Ship Channel by 7 the City of West Sacramento through its construction of bridges that prevent public access to the 8 channel by means of the barge canal and its bascule bridge and locks. In that case, plaintiff 9 alleged that the bridges at issue were constructed in 1997 and 2005 without the necessary 10 permits. The court construed plaintiff’s claims under the Rivers and Harbors Act of 1899, the 11 General Bridge Act of 1946, and interference with navigation under admiralty common law. The 12 action was dismissed on the merits after a hearing in which the court asked plaintiff to identify a 13 statute or any other provision of law that gives him a private right of action to pursue the claims 14 alleged in his complaint. Plaintiff could not point to any other such law. (Findings and 15 Recommendations, filed December 15, 2008, at 5.) 16 Although the instant complaint adds other claims based on the same set of facts, 17 plaintiff’s allegations pertain to the underlying action by plaintiff against the same defendant. As 18 a result, they are barred by collateral estoppel or res judicata, as plaintiff has either attempted to 19 bring new claims regarding West Sacramento’s alleged interference with navigation of the 20 Sacramento River Deep Water Ship Channel, raise claims which could have been brought earlier, 21 or raise the same claims which were already decided in the previous action. Under the doctrine 22 of res judicata, “‘[a] final judgment on the merits bars a subsequent action between the same 23 parties or their privies over the same cause of action.’” The Fund for Animals, Inc. v. Lujan, 962 24 F.2d 1391, 1398 (9th Cir. 1992), quoting Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 25 (9th Cir. 1985). The doctrine of res judicata consists of two concepts, issue preclusion, or 26 collateral estoppel, and claim preclusion, or res judicata. Migra v. Warren City School District 3 1 Board of Education, 465 U.S. 75, 77 n.1 (1984). “Issue preclusion [collateral estoppel] refers to 2 the effect of a judgment in foreclosing relitigation of a matter that has been litigated and 3 decided.” Id. “Claim preclusion [res judicata] refers to the effect of a judgment in foreclosing 4 litigation of a matter that never has been litigated, because of a determination that it should have 5 been advanced in an earlier suit.” Id. “Claim preclusion [res judicata] bars the assertion of any 6 theory of recovery that could have been asserted in the first action.” Fund for Animals, 962 F.2d 7 at 1398, citing Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988). 8 9 The instant complaint relates to the same allegations as raised in the previous action. Both actions allege that the City of West Sacramento acted to prevent navigation of the 10 Sacramento River Deep Water Ship Channel. The instant complaint is based on the same events 11 as the previous action. 12 Aside from the claims against the City of West Sacramento for violation of the 13 federal and state constitutions, 42 U.S.C. § 1983, and the equal footing doctrine, the claims 14 currently before the court were already litigated and decided in defendant’s favor in the previous 15 action. See Gray v. The City of West Sacramento, Civ.S.08-0433 MCE DAD PS (Order, filed 16 January 9, 2009, dkt. #21). All the claims raised in that action were necessarily determined and 17 were the same issues as those raised here. Plaintiff’s remaining legal theories raised here could 18 have and should have been raised in that action. Accordingly, collateral estoppel and/or res 19 judicata bars this action from proceeding against the City of West Sacramento. 20 21 22 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice. These findings and recommendations are submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 24 fourteen (14) days after being served with these findings and recommendations, plaintiff may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 4 1 advised that failure to file objections within the specified time may waive the right to appeal the 2 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: August 3, 2010 /s/ Gregory G. Hollows 4 GREGORY G. HOLLOWS, UNITED STATES MAGISTRATE JUDGE 5 GGH:076/Harris2568.f&r 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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