Countryman v. Baca et al, No. 3:2007cv00052 - Document 90 (D. Nev. 2009)

Court Description: REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE re 75 Defendants' Motion for Partial Dismissal and 83 Plaintiff's Motion to Strike. IT IS HEREBY RECOMMENDED that the District Judge enter an Order GRANTING the Motion to Dismiss 75 Counts IV and V of the Amended Complaint with prejudice and DENYING the Motion to Strike 83 . IT IS FURTHER RECOMMENDED that the District Judge enter an Order DISMISSING Defendants Williams, Jaeger and Rexwinkel with prejudice. Objections to R&R due by 7/10/2009. Signed by Magistrate Judge Robert A. McQuaid, Jr. on 6/24/09. (Copies have been distributed pursuant to the NEF - HJ)
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Countryman v. Baca et al Doc. 90 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 RALPH COUNTRYMAN, 8 Plaintiff, 9 10 ) ) ) ) ) ) ) ) ) ) vs. BACA, et al., 11 Defendants. 12 3:07-CV-0052-PMP (RAM) REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE 13 This Report and Recommendation is made to the Honorable Philip M. Pro, United 14 States District Judge. The action was referred to the undersigned Magistrate Judge pursuant 15 to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR IB 1-4. Before the court is 16 Defendants’ Motion for Partial Dismissal (Doc. #751). Plaintiff has filed an opposition/motion 17 to strike (Doc. #83), and Defendants have replied (Doc. #85). After a thorough review, the 18 court recommends that the motion should be granted dismissing Counts IV and V of the 19 amended complaint. I. BACKGROUND 20 21 A. Counts IV and V of the First Amended Complaint 22 This is a prisoner civil rights complaint brought under 42 U.S.C. § 1983. At all relevant 23 times, Plaintiff Ralph Countryman (“Plaintiff”) was an inmate in custody of the Nevada 24 Department of Corrections (“NDOC”) at Southern Desert Correctional Center (“SDCC”) and 25 Nevada State Prison (“NSP”). 26 /// 27 1 28 Refers to the court’s docket number. 1 1 The First Amended Complaint (“FAC”) (Doc. #63) reflects the claims contained in two 2 separate but related actions that were removed to this district: (1) the above-captioned matter 3 and (2) Countryman v. Williams, et al., Case No. 2:08-CV-255-RCJ-RJJ (“the ‘255 action”). 4 Both lawsuits concern Plaintiff’s right to possess copies of certain religious texts. 5 Only Counts IV and V of the FAC are implicated by the instant motion.2 Count IV arose 6 while Plaintiff was confined at SDCC. It alleges that prison officials violated Plaintiff’s 7 Fourteenth Amendment right to equal protection when they confiscated his hardbound Bible. 8 (Doc. #63 at 13.3) Warden Williams and Property Sergeant Jaeger are named as defendants 9 in this Count. (Id. at 16.) 10 Count V of the FAC arises from the same facts as Count IV. It alleges a violation of 11 Plaintiff’s Fourteenth Amendment right to due process. Defendants Williams and Jaeger are 12 again named in this count, as well as Defendant Rexwinkel, the Deputy Director of NDOC. (Id. 13 at 17-18.) Defendants move to dismiss these claims on the basis that they were previously 14 15 adjudicated in the ‘255 action. Therefore, it is necessary to briefly summarize that lawsuit. 16 B. The ‘255 Action 17 In Countryman v. Williams, et al., Plaintiff alleges that Defendants violated Plaintiff’s 18 constitutional rights and 42 U.S.C. § 2000cc (also known as the Religious Land Use and 19 Institutionalized Persons Act or “RLUIPA”) when Defendants at SDCC confiscated Plaintiff’s 20 Bible due to its hardbound cover. 21 /// 22 23 24 25 26 2 Counts I and II of the FAC duplicate the first two counts of the original complaint in this action. These claims arose while the plaintiff was confined at NSP and not permitted to possess a hardbound copy of a book called “Analytical Lexicon.” Based on this deprivation, he alleges a violation of his First Amendment rights as well as his rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Count III states a claim for the violation of Plaintiff’s rights under the Fourteenth Amendment and RLUIPA due to an alleged ban on the receipt of religious texts at NSP. These claims are not the subject of the instant motion. 3 27 28 Refers to his handwritten page numbering appearing at the bottom of the document. 2 1 This complaint consists of two counts. Count I alleges a violation of Plaintiff’s rights 2 under the Equal Protection Clause of the Fourteenth Amendment as well as a statutory claim 3 under RLUIPA. Defendants Williams and Jaeger are named in this count. (Case No. 2:08-CV- 4 255-RCJ-RJJ, Doc. #1, at 8-9.) Count II alleges a due process violation based on the same conduct. Defendants Jaeger 5 6 and Williams are named in this count. (Doc. #63 at 7.) 7 In November 2008, this court granted Defendants’ Motion to Dismiss (Doc. #36). On 8 the merits of Plaintiff’s First Amendment, Equal Protection, Due Process, and RLUIPA claims, 9 the court found that there had been no violation of Plaintiff’s rights. (Id.) Additionally, the 10 court found that even had there been a constitutional violation, the defendants were entitled 11 to qualified immunity. (Id. at 16.) Accordingly, judgement was entered in favor of Defendants 12 Williams and Jaeger. Plaintiff also made a motion to consolidate the ‘255 action and this 13 lawsuit, which was denied as moot. (Id.) 14 C. Recent Procedural History 15 In this lawsuit, Plaintiff filed an identical motion to consolidate the actions as above, 16 which the court granted. (Doc. #61.) This motion was moot since the ‘255 action had already 17 been terminated. The motion also amended the complaint to add new claims and new parties. 18 (Id.) The claims consolidated from the dismissed ‘255 complaint and a derivative claim 19 asserted against a new defendant are the subject of the instant motion. 20 II. LEGAL STANDARD 21 “A dismissal under Fed.R.Civ.P. 12(b)(6) is essentially a ruling on a question of law.” 22 North Star Inter’l v. Ariz. Corp. Comm., 720 F.2d 578, 580 (9th Cir. 1983) (citation omitted). 23 A plaintiff must state “enough facts to state a claim to relief that is plausible on its face.” Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). 25 The complaint need not contain detailed factual allegations, but it must contain more than “a 26 formulaic recitation of the elements of a cause of action.” Id. at 1965. The Rule 8(a) notice 27 pleading standard requires the plaintiff to “give the defendant fair notice of what the . . . claim 28 3 1 is and the grounds upon which it rests.” Id. at 1964 (internal quotations and citation omitted). 2 In considering a motion to dismiss for failure to state a claim upon which relief may be 3 granted, all material allegations in the complaint are accepted as true and are to be construed 4 in a light most favorable to the non-moving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 5 337-38 (9th Cir. 1996) (citation omitted). For a defendant-movant to succeed, it must appear 6 to a certainty that a plaintiff will not be entitled to relief under any set of facts that could be 7 proven under the allegations of the complaint. Id. at 338. A complaint may be dismissed as 8 a matter of law for, “(1) lack of a cognizable legal theory or (2) insufficient facts under a 9 cognizable legal claim.” Smilecare Dental Group v. Delta Dental Plan, 88 F.3d 780, 783 (9th 10 Cir 1996) (quoting Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 11 1984)). 12 A pro se plaintiff’s complaint must be construed liberally and can only be dismissed 13 where it appears certain from the complaint that the plaintiff would not be entitled to relief. 14 Ortez v. Washington County, State of Or., 88 F.3d 804, 807 (9th Cir. 1996). Although 15 allegations of a pro se complaint are held to a less stringent standard than formal pleadings 16 drafted by a lawyer, Haines v. Kerner, 404 U.S. 519 (1972), sweeping conclusory allegations 17 will not suffice. Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). III. DISCUSSION 18 19 A. RES JUDICATA 20 Res judicata, or claim preclusion, provides that a final judgment on the merits of an 21 action precludes the parties from relitigating all issues that were or could have been raised in 22 that action. Rein v. Providian Financial Corp., 270 F.3d 895, 898-99 (9th Cir. 2001). Claim 23 preclusion is appropriate where: (1) the parties are identical or in privity, (2) the judgment in 24 the prior action was rendered by a court of competent jurisdiction, (3) there was a final 25 judgment on the merits, and (4) the same claim or cause of action was involved in both suits. 26 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). To determine 27 whether successive lawsuits involve the same claim, the court analyzes the following: 28 4 (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. 1 2 3 4 Constantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982). 5 Applying the Owens factors, the court finds that Count IV of this action contains the 6 same two defendants as Count I of the ‘255 action, Warden Williams and Property Sergeant 7 Jaeger. The ‘255 action was properly removed to this court, and hence there is no jurisdictional 8 infirmity. Additionally, the ‘255 action involved a final judgments on all the claims asserted 9 by the plaintiff, as set forth above. Finally, applying the Constantini factors, the court finds 10 that the same equal protection claim involving the confiscation of a hardbound Bible at SDCC 11 is involved in both actions. Therefore, the res judicata effect of the dismissal of Count I in the 12 ‘255 action bars Plaintiff from bringing Count IV in the present lawsuit. It accordingly should 13 be dismissed. 14 The court reaches a similar conclusion with respect to Count V of the FAC, which is 15 similar to Count II dismissed in the ‘255 action. With the exception of Defendant Rexwinkel, 16 who was not named in the ‘255 action, the parties are the same and a final judgment was 17 rendered on the merits of the due process claim. Accordingly, the claims in Count V should be 18 dismissed against Defendants Williams and Jaeger. 19 B. DEFENDANT REXWINKEL 20 In addition to claims carried over from the ‘255 action, Count V of the amended 21 complaint states a claim against a newly added party, Defendant Rexwinkel. This is a claim for 22 derivative liability for the violation of Plaintiff’s due process rights based on the failure of 23 Rexwinkel to properly supervise his subordinate employees. (Doc. #63 at 17.) Defendant 24 Rexwinkel was not, however, a party named in the ‘255 action. Therefore, for res judicata to 25 apply, there must be some sort of privity between Defendants Williams and Jaeger and 26 Defendant Rexwinkel. Owens, 244 F.3d at 713. 27 /// 28 5 1 The Ninth Circuit Court of Appeals has defined privity in the res judicata context as “a 2 legal conclusion ‘designating a person so identified in interest with a party to former litigation 3 that he represents precisely the same right in respect to the subject matter involved.’” In re 4 Schimmels, 127 F.3d 875, 8881 (9th Cir. 1997) (quoting Southwest Airlines Co. v. Texas Int'l 5 Airlines, Inc., 546 F.2d 84, 94 (5th Cir. 1977)). The following types of relationships allow res 6 judicata to apply against the non-party: First, a non-party who has succeeded to a party's interest in property is bound by any prior judgment against the party. Second, a non-party who controlled the original suit will be bound by the resulting judgment. Third, federal courts will bind a non-party whose interests were represented adequately by a party in the original suit. 7 8 9 10 Id. at 95. 11 In this case, the mere fact that Defendant Rexwinkel was employed by NDOC and sued 12 in that capacity is insufficient to establish a privity relationship. Additionally, no property 13 interest was involved, and Defendant Rexwinkel hardly “controlled” the ‘255 litigation. The 14 interests of this defendant were, however, adequately represented in the initial suit. This is 15 because Rexwinkel’s liability derives from an alleged constitutional violation committed by 16 Defendant Williams and Jaeger who, according to Plaintiff’s allegations, were “subordinate 17 employee’s [sic]”. Therefore, if there was no primary constitutional violation of Plaintiff’s due 18 process rights, then there can be no derivative liability for Defendant Rexwinkel based on a 19 failure to properly supervise. To the extent that Defendants Jaeger and Williams established 20 that there was no violation of Plaintiff’s rights in the ‘255 action, they adequately represented 21 Defendant Rexwinkel’s interests as they are now implicated in the instant FAC. Therefore, the 22 court finds that there was sufficient privity so that the res judicata bar extends to the claim 23 alleged against Defendant Rexwinkel in Count V. Accordingly, it should be dismissed. 24 C. MOTION TO STRIKE 25 In his opposition, Plaintiff alternatively argues that the motion to dismiss should be 26 stricken. This contention lacks merit. Plaintiff alleges that the Defendants have improperly 27 submitted ex parte exhibits to the court. To the contrary, no exhibits were included with the 28 6 1 motion to dismiss, which only refers to the case docket. The court clerk mails Plaintiff a copy 2 of all documents filed with that office. Second, Plaintiff contends that Defendants are 3 “technically in default” because they did not timely answer the FAC. The court has already 4 rejected this argument. See Doc. #73 (rejecting Plaintiff’s motion for default judgement (Doc. 5 #70)). Accordingly, the motion to strike should be denied. IV. RECOMMENDATION 6 7 IT IS HEREBY RECOMMENDED that the District Judge enter an Order 8 GRANTING the Motion to Dismiss (Doc. #75) Counts IV and V of the Amended Complaint 9 with prejudice and DENYING the Motion to Strike (Doc. #83). IT IS FURTHER RECOMMENDED that the District Judge enter an Order 10 11 DISMISSING Defendants Williams, Jaeger, and Rexwinkel with prejudice. The parties should be aware of the following: 12 13 1. 14 Rules of Practice, specific written objections to this Report and Recommendation within ten 15 (10) days of receipt. These objections should be titled "Objections to Magistrate Judge's Report 16 and Recommendation" and should be accompanied by points and authorities for consideration 17 by the District Court. 18 2. 19 of appeal pursuant to Rule 4(a)(1), Fed. R. Civ. P., should not be filed until entry of the District 20 Court's judgment. 21 That they may file, pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local That this Report and Recommendation is not an appealable order and that any notice DATED: June 24, 2009. 22 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 7