(PS) Driskell v. Sacramento Dept. of Child Support Services et al, No. 2:2017cv00008 - Document 3 (E.D. Cal. 2017)

Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/12/2017 RECOMMENDING that this action be dismissed without leave to amend; Plaintiff's 2 motion to proceed in forma pauperis be denied as moot, discovery and motion practice are STAYED pending resolution of the F & R's; Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days after being served with these F & R's. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DRISKELL, 12 Plaintiff, 13 14 15 No. 2:17-cv-0008-GEB-KJN PS v. ORDER AND SACRAMENTO DEPARTMENT OF CHILD SUPPORT SERVICES, et al., 16 FINDINGS AND RECOMMENDATIONS Defendants. 17 18 Plaintiff Michael Driskell, who proceeds in this action without counsel, requested leave to 19 proceed in forma pauperis under 28 U.S.C. § 1915. (ECF No. 2.)1 Pursuant to 28 U.S.C. § 1915, 20 the court is directed to dismiss the case at any time if it determines that the allegation of poverty 21 is untrue, or if the action is frivolous or malicious, fails to state a claim on which relief may be 22 granted, or seeks monetary relief against an immune defendant. For the reasons discussed below, 23 the court concludes that the case should be dismissed without leave to amend and plaintiff’s 24 motion to proceed in forma pauperis be denied as moot. 25 Liberally construed, plaintiff’s complaint alleges that he had a child with a woman to 26 whom he was not married in 1999. Plaintiff claims that, despite acknowledging his parental 27 28 1 This case proceeds before the undersigned pursuant to Local Rule 302(c)(21). 1 1 responsibilities and acting as the child’s primary caregiver, the Sacramento County Department of 2 Child Support Services (“DCSS”) and its attorney, Jack Mills, maliciously prosecuted plaintiff for 3 child support over a period of 14 years, resulting in suspension of plaintiff’s driving privileges, 4 loss of job opportunities and potential income, destruction of plaintiff’s credit, and severe 5 emotional distress. According to plaintiff, DCSS refused to consider documentation provided by 6 plaintiff, threatened the child’s mother with loss of benefits if she did not cooperate in the DCSS 7 prosecution, and conspired with the Sacramento Family Court commissioner to effectuate the 8 prosecution. Plaintiff alleges that he is African American, and that the prosecution was based on 9 a racial vendetta against him. Plaintiff asserts a claim under 42 U.S.C. § 1983 for violation of his 10 civil rights, as well as state law claims for malicious prosecution and intentional infliction of 11 emotional distress against three defendants: DCSS; attorney Jack Mills; and an unidentified 12 Sacramento Family Court commissioner. Plaintiff seeks $800,000.00 in compensatory damages 13 and $2,000,000.00 in punitive damages. (See generally ECF No. 1.) 14 This is not the first time that plaintiff has brought his child support grievances to this 15 court. On May 21, 2008, plaintiff filed a lawsuit alleging “years of abuse by Sacramento 16 County’s Dept of Child Support Services and their attorney Jack O Mills” with respect to 17 plaintiff’s child support case, purportedly resulting in suspension of his driver’s license, loss of 18 several employment offers and potential income, ruination of his credit, and mental anguish. (See 19 2:08-cv-1118-JAM-DAD, ECF No. 1.) Subsequently, on April 16, 2009, this court dismissed the 20 earlier action with prejudice. (Id., ECF Nos. 5, 6.)2 After examining this court’s records, the court finds that plaintiff’s claims against DCSS 21 22 and Mills are barred by the doctrine of claim preclusion. Claim preclusion “bars litigation in a 23 subsequent action of any claims that were raised or could have been raised in the prior 24 action....The doctrine is applicable whenever there is (1) an identity of claims, (2) a final 25 judgment on the merits, and (3) identity or privity between parties.” Owens v. Kaiser Foundation 26 27 28 2 A court may take judicial notice of court filings and other matters of public record, which are not subject to reasonable dispute. Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Fed. R. Evid. 201(b). 2 1 Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (internal citations and quotation marks 2 omitted). In this case, there can be no serious dispute that there was a final judgment on the 3 merits in the prior case (the prior case was dismissed with prejudice) and that identity or privity 4 between parties exists (DCSS and Mills were the focus of plaintiff’s allegations in both 5 complaints). The only question is whether there is an identity of claims. 6 7 8 9 10 11 12 13 14 The Ninth Circuit has identified four factors that should be considered by a court in determining whether successive lawsuits involve an identity of claims: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. 15 See C.D. Anderson & Co. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987); accord Headwaters Inc. 16 v. United States Forest Serv., 399 F.3d 1047, 1052 (9th Cir. 2005); Littlejohn v. United States, 17 321 F.3d 915, 920 (9th Cir. 2003). “The central criterion in determining whether there is an 18 identity of claims between the first and second adjudications is whether the two suits arise out of 19 the same transactional nucleus of facts.” Owens, 244 F.3d at 714. 20 Here, plaintiff’s claims in both actions are based on the same alleged malicious 21 prosecution for child support benefits (through suspension of plaintiff’s driver’s license, a 22 purported conspiracy or cooperation between DCSS and the Family Court, a refusal to consider 23 evidence, threats to the child’s mother, ruination of plaintiff’s credit, and preventing plaintiff 24 from finding more lucrative employment and better income). As such, both actions arise out of 25 the same transactional nucleus of facts, both actions involve alleged infringement of the same 26 type of rights, substantially the same evidence would be involved in both actions, and the rights 27 or interests established in the prior judgment would be destroyed or impaired by allowing plaintiff 28 to prosecute the instant action. To be sure, in the prior action, plaintiff proceeded under a theory 3 1 of sex discrimination whereas he presently primarily alleges racial discrimination. Nevertheless, 2 plaintiff’s claim of racial discrimination is merely a new legal theory arising from the same 3 transactional nucleus of facts and could have been raised in the prior action. See Owens, 244 4 F.3d at 713-14; C.D. Anderson & Co., 832 F.2d at 1100. Consequently, plaintiff’s claims against DCSS and Mills are barred by the doctrine of 5 6 claim preclusion. 7 As noted above, in the prior action, plaintiff also alleged misconduct by the Family Court, 8 whereas his present complaint names an unidentified Sacramento Family Court commissioner. 9 Even assuming, without deciding, that the doctrine of claim preclusion does not apply to the 10 commissioner, he or she is immune from liability for damages derived from decisions made when 11 presiding over plaintiff’s child support case. See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th 12 Cir. 1986) (“Judges and those performing judge-like functions are absolutely immune from 13 damage liability for acts performed in their official capacities…Judicial immunity applies 14 however erroneous the act may have been, and however injurious in its consequences it may have 15 proved to the plaintiff.”); Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (“As a person 16 performing ‘judge-like functions’ that were not clearly outside the scope of his jurisdiction, 17 Commissioner Schwartz is judicially immune from damage liability in this action.”). The fact 18 that plaintiff alleges a conspiracy between the commissioner and DCSS with respect to the 19 prosecution of plaintiff’s child support payments also does not impact the commissioner’s 20 immunity. Ashelman, 793 F.2d at 1078 (noting that “a conspiracy between judge and prosecutor 21 to predetermine the outcome of a judicial proceeding, while clearly improper, nevertheless does 22 not pierce the immunity extended to judges….”). As such, plaintiff’s claim against the unidentified court commissioner is likewise not 23 24 25 viable. The court has carefully considered, especially given plaintiff’s pro se status, whether 26 leave to amend should be granted. However, in light of the nature of plaintiff’s claims, which are 27 barred by claim preclusion and/or asserted against an immune defendant, the court finds that 28 granting leave to amend here would be futile. See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 4 1 339 (9th Cir. 1996). 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. The action be dismissed without leave to amend. 4 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be denied as moot. 5 3. The Clerk of Court be directed to close this case. 6 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 7 discovery, and motion practice in this action are stayed pending resolution of those findings and 8 recommendations. Other than objections to the findings and recommendations or non-frivolous 9 motions for emergency relief, the court will not entertain or respond to any pleadings or motions 10 until the findings and recommendations are resolved. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 13 days after being served with these findings and recommendations, any party may file written 14 objections with the court and serve a copy on all parties. Such a document should be captioned 15 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 16 shall be served on all parties and filed with the court within fourteen (14) days after service of the 17 objections. The parties are advised that failure to file objections within the specified time may 18 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 19 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 20 21 IT IS SO ORDERED AND RECOMMENDED. Dated: January 12, 2017 22 23 24 25 26 27 28 5

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