Florer v. Johnson et al, No. 3:2006cv05561 - Document 187 (W.D. Wash. 2009)
Court Description: ORDER granting 161 Motion to Amend. Plaintiff shall file a proposed Third Amended Complaint on or before 5/29/09. by Judge Karen L Strombom.(JLP)(copy mailed to plaintiff)
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Florer v. Johnson et al Doc. 187 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 11 DENNIS FLORER, Case No. C06-5561 RJB/KLS Plaintiff, 12 13 14 CHERYL JOHNSON, et al., Defendants. 15 16 ORDER GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT v. Before the Court is Plaintiff Dennis Florer’s motion to amend. Dkt. # 161. This case was 17 previously stayed pending resolution of trial on the merits of Mr. Florer’s case in the Eastern District of 18 Washington, Florer v. Peck, CV-05-5039EFS (the “Eastern District case1”). Dkt. # 156. The Court is 19 advised that judgment has been entered in the Eastern District case and the parties have now presented 20 their arguments as to the impact of that ruling on Mr. Florer’s pending motion to amend. 21 In the proposed second amended complaint, Mr. Florer claims that the 2004, 2006 and 2008 22 kosher and mainline dietary menus offered by the Department of Corrections (DOC) are nutritionally and 23 religiously inadequate. He names three individuals employed as dieticians at the DOC as defendants. 24 The proposed amended complaint deletes 33 named defendants and three Washington private food 25 contractors, and deletes several claims including a claim of retaliation and claims under RCW 7.72 26 (Product Liability Actions), 21 C.F.R. § 101.9 (Nutritional Labeling of Food) and 9 C.F.R. § 317 27 (Labeling, Marking Devices and Containers). 28 1 Docket entries in the Eastern District case shall be referred to herein as “ED Dkt. # __”. ORDER Page - 1 Dockets.Justia.com 1 Defendants object to the proposed amendment, arguing that Mr. Florer’s claims as to the religious 2 and nutritional adequacy of the 2004 kosher diet are barred by the doctrine of res judicata by rulings in 3 the Eastern District case. They argue that proposed claims based on the religious and nutritional 4 adequacy of the kosher and mainline diets from 2004 through the present day are similarly barred because 5 Mr. Florer could have raised them in the Eastern District case. Defendants also argue that they would be 6 prejudiced by allowing the amendment at this stage, as it would necessitate the reopening of discovery 7 and filing of more dispositive motions. 8 The Court, having reviewed the parties’ briefing, including Defendants’ Supplement (Dkt. # 164), 9 Plaintiff’s Reply (Dkt. # 172), Response Memorandum (Dkt. # 173),2 and balance of the record, finds that 10 Mr. Florer’s proposed amendments are not barred by res judicata and that his motion to amend should be 11 granted.3 12 13 14 BACKGROUND A. The Eastern District Case In his Supplemental Amended Complaint filed on September 28, 2005 in the Eastern District case, 15 Mr. Florer sued individual DOC employees at the Washington State Penitentiary (WSP), claiming that 16 they violated his rights under the First and Eighth Amendments.4 ED Dkt. # 89. His claims were based 17 on the alleged religious and nutritional inadequacy of the kosher diet he received, the failure of the 18 institution where he was held to provide him with religious materials, a retaliation claim, a claim alleging 19 that he was housed in discouraging conditions and a claim based on the institution’s failure to process 20 grievances. Id. 21 On July 30, 2007, Defendants were granted summary judgment on Mr. Florer’s claims that the 22 2 23 24 25 26 27 28 Plaintiff also filed a request to file an overlength brief (Dkt. # 168), stating that he was confused as to whether he was responding to his motion to amend or the Defendants’ motion for summary judgment. Dkt. # 168. He also filed a praecipe to attach exhibits. Dkt. # 169. However, Plaintiff clearly identifies his subsequent Reply (Dkt. # 172) as his “reply to Dkt. # 165 Re Motion to Amend.” 3 Related to Mr. Florer’s motion to amend are his subsequently filed motions that a ruling on his motion to amend be held in abeyance (Dkt. # 175) and for Rule 11 sanctions (Dkt. # 176). These motions are dealt with by separate order. 4 Defendants in the Eastern District case included William Peck, Ron Denny, Larry Langhoff, Janet Harper, Sean Scanlon, Dwitte Ellison, Megan Gilbertson, Shirley Clark, John Johnson, Patricia Gleason, Tim Richmond, Kieth Power, Kerri Robonson, Ron Knight, Diane Benfield, Paul Owens, Sean Murphy, John Moore, Dave Snell, Sherry Hartford, Richard Morgan, Brad Simpson and Cheryl Johnson. ED Dkt. # 89. ORDER Page - 2 1 diet he was served at WSP was religiously inadequate in violation of his First Amendment rights. ED 2 Dkt. # 445, pp. 8-11. Defendants were also granted summary judgment on Mr. Florer’s claims that (1) 3 despite repeated requests he was not given a torah and thus, his practice of religious was burdened (Id. p. 4 9); (2) he was subjected to discouraging conditions of confinement (Id., p. 10); and (3) that Defendants 5 failed to process his grievances. Id. 6 On August 20, 2007, Judge Shea denied Defendants’ motion for summary judgment on Mr. 7 Florer’s claims regarding the nutritional inadequacy of the kosher diet he was served at WSP under the 8 First and Eighth Amendments. ED Dkt. # 446, pp. 8-9, 12.5 As to the issue before the court on summary 9 judgment, Judge Shea explained: 10 11 12 “Plaintiff does not dispute that the Department of Corrections had a policy under which it provided Plaintiff with a kosher diet, rather Plaintiff’s remaining argument is that the diet he was actually served was nutritionally inadequate. Therefore, in order to defeat Defendants’ motion for summary judgment on the issue of the diet Plaintiff was served, Plaintiff must demonstrate that an issue of material fact remains as to whether the diet Plaintiff was served was nutritionally adequate. 13 ED Dkt. # 446, p. 4 14 On September 8, 2008, Judge Shea granted Defendants’ motion to dismiss Defendant Sean 15 Murphy and the retaliation claim. ED Dkt. # 592. 16 At the time of trial, only Mr. Florer’s claims against Defendant Diane Benfield, a Registered 17 Clinical Dietician at WSP, remained. Mr. Florer contended that WSP’s 2004 kosher diet was nutritionally 18 inadequate, that the portion sizes in WSP’s 2004 kosher diet as written differed from the portion sizes 19 actually served, that Ms. Benfield inflicted cruel and unusual punishment upon him and interfered with 20 his practice of Judaism by not providing a nutritionally adequate kosher diet while he was incarcerated at 21 WSP. ED Dkt. # 592, p. 2; ED Dkt. # 598, p. 3. Mr. Florer claims that he suffered severe physical and 22 psychological injuries due to weight loss while incarcerated at WSP in 2004. ED Dkt. # 598, p. 3. 23 On September 10, 2008, the Court dismissed Mr. Florer’s case on Defendants’ motion for 24 judgment as a matter of law. ED Dkt. # 165, Exh. 1, Attachment A. Relevant portions of the Court’s 25 ruling are as follows: 26 27 5 28 The Court also dismissed eighteen of the twenty-three named defendants because Mr. Florer did not allege sufficient facts for the Court to find individual participation on the part of their part. Id., p. 11. (Only Defendants Peck, Benfield, Moore, Murphy and Snell remained at that time.) ORDER Page - 3 1 [H]is real purpose is either to demonstrate that Ms. Benfield had the authority to change or alter the diet and the menu, and she did not. She could exchange within the days, as Ms. Bales has explained – and here Bales and Johnson are used interchangeably – and she did so. The evidence is that when she was aware of the issues, she addressed them appropriately and conducted herself consistent with her responsibilities to address inmate concerns of this kind. Here where a weight loss occurred, she saw it, appropriately prescribed a booster and other snacks, varying those snacks to accommodate Mr. Florer’s responses, some discomfort with regard to the milk, some concerns about the soy product, the caloric intake to supplement, which on its face was at the very least a 2100 – approximately 2100-calorie diet, boosting him at least to a 24 and in some instances to 2700 calories with the booster product, convened a team meeting because of a concern about his severe weight loss and considered institutionalizing him, that is, putting him in a medical unit to deal with this weight loss issue if he went below a certain weight. That was consistent with her responsibilities. 2 3 4 5 6 7 8 And there is no evidence that she acted in any way to interfere with his exercise of Judaism. She, in fact, attempted to accommodate his needs for Kosher diet and varying within in [sic] it depending upon his independent reaction to it. 9 10 As to the First Amendment clause, there is no proof, and the case is dismissed. That claim is dismissed. 11 12 As to the Eighth Amendment, she – she did all of the things she should have done. While, it’s possible there could have been a harm had he gone below a certain weight, there was no substantial risk of that given her continued vigilance with regard to his weight loss and her efforts to correct those. She acknowledged that and was sensitive to it. She did not disregard it. Nothing she did caused the – caused Mr. Florer any harm whatsoever. 13 14 15 The essence of Mr. Florer’s issues are that there may – from his point of view, some of the foods were served in containers that made it inedible, and the other concern is that there may not have been enough caloric intake from his viewpoint or micronutrients that should have been contained in the diet. That’s a case for another day in another location. 16 17 18 Id., Attachment B. 19 20 Mr. Florer has appealed to the Ninth Circuit Court of Appeals. Id., Attachment C. B. 21 Plaintiff’s First Amended Complaint and Relief Sought in This Case Plaintiff filed his original complaint in October 2006. Dkt. # 5. In March 2007, the Court denied 22 Defendants’ motion to dismiss Plaintiff’s original complaint and granted Plaintiff leave to file an 23 amended complaint. Dkt. # 58. Plaintiff filed his First Amended Complaint on April 18, 2007. Dkt. # 24 62. 25 In his First Amended Complaint, Mr. Florer alleges violations of his First, Eighth, and Fourteenth 26 Amendment rights and the Religious Land Use and Institutionalized Persons Act (RLUIPA). (Dkt. # 62). 27 Mr. Florer also claims violations of RCW 7.72 (Product Liability Actions), 21 C.F.R. § 101.9 (Nutritional 28 Labeling of Food) and 9 C.F.R. § 317 (Labeling, Marking Devices and Containers). Id. Mr. Florer ORDER Page - 4 1 alleges that the foods actually served to him on the kosher and mainline diets did not meet the minimally 2 acceptable standards of nutrition set by the Department of Health and Human Services or U.S. 3 Department of Agriculture Dietary Guidelines for Americans and that the foods actually served did not 4 maintain him at his natural body weight. Dkt. # 62, pp. 9-10. 5 Mr. Florer’s claims cover a period of time from December 1, 2004 through April 2006, while he 6 was housed at WCC, CBCC and SCC. Id. Mr. Florer also alleges that Defendants destroyed any spiritual 7 value that he might have achieved through the Kosher diet, Biblical fast days, Rabbanic fast days and 8 Passover and he stopped attempts to practice Judaism in April of 2006. Id., p. 9. Mr. Florer also claims 9 that Defendants retaliated against him by failing to make photocopies and by failing to respond to 10 grievances. Id., pp. 26-27. 11 The plaintiff named 35 individual defendants and 25 John Does, including the chaplain, food 12 service cooks, food managers, dieticians, correctional officers and grievance coordinators at DOC, SCCC 13 and WCC, and three Washington private food contractors, for events occurring from December 1, 2004 to 14 April 2006 at WCC, CBCC and SCCC. 15 C. 16 Plaintiff’s Proposed Amendment In This Case In his proposed Second Amended Complaint (Dkt. # 161), Mr. Florer seeks to drop all of the 17 named Defendants except two individuals, former food manager Cheryl Johnson Bales (formerly Cheryl 18 Johnson, who was named in the Eastern District case), and current food program manager Jay Jackson. 19 Mr. Florer has recently advised the parties of a newly discovered defendant and asserts that he now needs 20 to add a “registered dietician,” named in Grievance Log No. 0823868.6 Dkt. # 161, p. 6. Mr. Florer 21 argues that the nutritional inadequacy of the 2004 kosher menu remains to be litigated. He relies on the 22 following passage from Judge Shea’s ruling on the Defendants’ motion for judgment as a matter of law: 23 The essence of Mr. Florer’s issues are that there may – from his point of view, some of the foods were served in containers that made it inedible, and the other concern is that there may not have been enough caloric intake from his viewpoint or micronutrients that should have been contained in the diet. That’s a case for another day in another location. 24 25 26 Dkt. # 165, Exh. 1, Attachment A 27 6 28 See Dkt. # 172, p. 6, Mr. Florer states that he has discovered another new party as to his claims as to the 2008 mainline menu, a Registered Dietician named in Grievance Log No. 0823868. ORDER Page - 5 1 In his proposed amendment, Mr. Florer claims that Ms. Bales wrote the 2004 and 2006 kosher and 2 mainline menus for use by institutions within the DOC, but that the menus do not meet U.S. Department 3 of Agriculture, U.S. Department of Health and Human Services Dietary Guidelines and Dietary Reference 4 Intakes. He alleges that Mr. Jackson wrote the menus for 2008 and that they suffer from these same 5 deficiencies. 6 Mr. Florer asserts that the menus are nutritionally inadequate because they do not meet the 7 aforementioned guidelines and that they are religiously inadequate because they placed a substantial 8 burden on his ability to exercise his religion, all in violation of his rights under the First and Eighth 9 Amendments and RLUIPA. Dkt. # 161-3. Mr. Florer alleges that the nutritional inadequacies of the 10 diets subjected him to a substantial risk of harm in that it does not maintain his usual body weight of 185 11 to 190 pounds. See, e.g., Dkt. # 161-3, p. 6. 12 13 II. DISCUSSION Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 15(a), “[a] party may amend 14 the party’s pleading once as a matter of course at any time before a responsive pleading is served.” 15 Otherwise, the party “may amend the party’s pleading only by leave of court or by written consent of the 16 adverse party.” Id. Leave to amend “shall be freely given when justice so requires,” and “this policy is to 17 be applied with extreme liberality.” Id.; Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 18 (9th Cir. 1990). After a responsive pleading has been filed, “leave to amend should be granted unless 19 amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue 20 delay.” Martinez v. Newport Beach City, 125 F.3d 777, 786 (9th Cir. 1997). 21 Although the amendment rules are liberal, they do not require that courts indulge in futile 22 gestures. Deloach v. Woodley, 405 F.2d 496, 497 (5th Cir. 1968). If a proposed amendment could not 23 withstand a motion to dismiss, a court is justified in denying a motion to amend the pleadings made 24 pursuant to Rule 15(a). Jones v. Community Redevelopment Agency of City of Los Angeles, 733 F.2d 646 25 (9th Cir. 1984); Glick v. Koenig, 766 F.2d 265 (7th Cir. 1985). In addition, a proposed amendment that 26 necessitates reopening discovery or that creates the need for further discovery causes undue prejudice to 27 the opposing party. Lockhead Martin Corp. v. Networth Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). 28 ORDER Page - 6 1 2 A. Res Judicata Defendants argue that the doctrine of res judicata bars Mr. Florer’s claims as to the religious and 3 nutritional adequacy of the 2004 kosher diet because of the rulings in the Eastern District case. Dkt. # 4 165, p. 5. In addition, Defendants argue that Mr. Florer is precluded from asserting claims based on the 5 religious and nutritional adequacy of DOC’s kosher and mainline diets from 2004 through the present day 6 because he could have raised them in the Eastern District case when he amended his complaint on 7 September 12, 2005. Id., p. 6. Defendants reason that as of that date, Plaintiff had received the kosher 8 diet and mainline diets and could have included all claims regarding the diets at that time. Defendants 9 also argue that Mr. Florer could have brought a claim for recovery under RLUIPA in the Eastern District 10 case, but he chose to only raise his claim in that court under the First Amendment. Id. at p. 7. Thus, his 11 attempt to amend to add a RLUIPA claim now is barred under res judicata. Id. 12 Mr. Florer objects because his attempts to amend his claims in the Eastern District case to include 13 claims for on-going activities relating to the kosher and mainline diets occurring while he was 14 incarcerated at WCC, CBCC and SCCC were denied.7 Dkt. # 173, p. 5. The defendants in the Eastern 15 District case strenuously objected that the Eastern District was not the proper venue for any claims arising 16 out of Mr. Florer’s incarcerations at WCC, CBCC and SCCC as none of the named employees of those 17 institutions live in any of the counties that comprise the Eastern District. Dkt. # 174, p. 4. They also 18 argued that the Eastern District of Washington lacked jurisdiction to consider claims against individuals 19 working in DOC institutions in the Western District of Washington. Defendants argued that each DOC 20 institution is expected to follow the kosher menu that is developed and maintained at the DOC level by 21 the food program manager. However, if an inmate alleges that something is wrong with how the menu is 22 being served at a particular institution, the DOC food program manager has no control over the menu as 23 applied in the institutions. Dkt. # 174-2, pp. 8-9.8 24 Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims 25 7 26 27 28 Mr. Florer attempted to add Jay Jackson. Cheryl Johnson was already a named party. (ED Dkt. # 156-1, p. 1). 8 As Food Program Manager for the DOC, Cheryl Johnson attested that she plans menus and establishes the three week kosher menu cycle for the DOC and that each institution within the DOC is instructed to follow the three week kosher menu. (ED Dkt. # 174, Exh. 6). She also attested that each institution may make adjustments as necessary if menu items are unavailable. Id. ORDER Page - 7 1 that were raised or could have been raised in the prior action. Federated Dep’t Stores, Inc. v. Moitie, 452 2 U.S. 394, 398 (1981); Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982); 3 Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192. Res judicata applies when there is 1) an 4 identity of claims, 2) a final judgment on the merits, and 3) identity or privity between parties. Blonder- 5 Tongue Lab v. University of Ill. Found., 402 U.S. 313, 323-24 (1971); Western Radio Servs., 123 F.3d at 6 1192. Res judicata applies when the prior judgment and the second action are similar with respect to the 7 subject matter, the cause of action, the persons and parties, and the quality of the persons for or against 8 whom the claim is made. Feminist Women’s Health Center v. Codispoti, 63 F.3d 863, 866 (9th Cir. 1995). 9 A change in the legal theory underlying claims brought in the first round of litigation will not defeat res 10 11 judicata. See Mpoyo v. Litton Electro-Optical Systems, 430 F.3d 985, 988 (9th Cir. 2005). To determine whether the causes of action are identical, courts consider the following: (1) whether 12 rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the 13 second action; (2) whether substantially the same evidence is presented in the two actions, (3) whether the 14 two suits involved infringement of the same rights; and (4) whether the two suits arise out of the same 15 transactional nucleus of facts. Costantini, 681 F.2d at 1201. The last of these criteria is considered most 16 important, and “[n]o single criterion can decide every res judicata question [because] identity of causes of 17 action cannot be determined precisely by mechanistic application of a simple test. Femnist Women’s 18 Health Center, 63 F.3d at 867; Costantini, 681 F.2d at 1202 n. 7. 19 A close review of Mr. Florer’s claims in the Eastern District case and his proposed claims in this 20 case leads to the conclusion that the two suits do not arise out of the same transactional nucleus of facts. 21 Mr. Florer claimed that the 2004 kosher diet he received at WSP was religiously inadequate 22 because: (1) the DOC’s expert responsible for creating and implementing the DOC’s kosher diet is not 23 certified in kashruth supervision, (2) an employee of a kashruth supervision agency must be present at all 24 times when the food service department is in operation in order to maintain the kosher laws, (3) there 25 were problems with the kosher menu as written including the food preparation9, and (4) based on these 26 breaches, Mr. Florer was religiously defiled by consuming non-kosher foods. See e.g., ED Dkt. # 445, p. 27 28 9 The Court noted that the “heart of this contention appears to be that despite prison policy, on some occasions Plaintiff was served food that was not religiously adequate.” (ED Dkt. #445, pp. 7-8). ORDER Page - 8 1 6. He claimed that the 2004 kosher diet he received at WSP was nutritionally inadequate because (1) it 2 did not contain supplement snacks, (2) it was a repetitive 3-week cycle menu, (3) it contained inedible 3 food, and (4) defendants failed to coordinate Dietetics and General Nutritional Services with WSP closed 4 custody food service. Dkt. # 89, pp. 80-81. 5 Mr. Florer was at WSP from September 11, 2003 until December 1, 2004.10 His claims covered a 6 specific period of six and one-half months while he was on 23 to 24 hour a day lockdown. See, e.g., ED 7 Dkt. # 34, p. 32. 8 In the present litigation, Mr. Florer seeks to amend his complaint to include allegations that Cheryl 9 Bales (formerly Johnson) wrote the 2004 kosher menu for DOC, the menu was sent to each institution 10 with instructions to follow the menu, and that he received the 2004 kosher menu at WCC in December 11 2004, CBCC in December 2004-2005, SCCC in September 2005-April 2006. Dkt. # 161-3, p. 5. Mr. 12 Florer alleges that the menus as written failed to meet certain dietary guidelines. Id., pp. 4-6. He alleges 13 that the 2004 kosher menu is religiously inadequate and interfered with his exercise of Judaism. Id., p. 6. 14 He alleges that the 2004 kosher menu is nutritionally inadequate because it does not allow him to 15 maintain his usual body weight. Id. Mr. Florer also alleges that the 2006 kosher and mainline menus and 16 2008 kosher and mainline menus (written by Defendant Jay Jackson) suffer from these same deficiencies. 17 Id., pp. 7-15. 18 Turning first to the proposed allegations as to the 2006 and 2008 kosher and mainline menus, the 19 Court concludes that these claims do not arise from the same nucleus of facts as the claims in the Eastern 20 District case as they occurred in a time period distinct from that alleged in the Eastern District case. In 21 Costantini, the Ninth Circuit ruled that the successive claim brought by plaintiff was barred by res 22 judicata even though plaintiff claimed to have discovered additional supporting evidence. Id. at 1202. 23 The court reasoned that such evidence could have been unearthed during the discovery stages of the prior 24 action and was insufficient to establish a distinct transactional nucleus of fact. Id. Outside of this 25 evidence, the cause of action alleged in the second claim was identical to that of the first. Id. 26 27 In Costantini, the plaintiff was alleging new facts in support of a claim that was essentially identical to the previous one. This is not the case here. Here, Mr. Florer seeks to attack the 2006 and 28 10 ORDER Page - 9 Dkt. # 141, p. 3, Exh. 1, Attach. A (Legal Face Sheet). 1 2008 kosher and mainline menus as written that he received while he was incarcerated at WCC, CBCC 2 and SCCC. He has not included a claim relating to the 2004 kosher menu for the diet served to him while 3 he was housed at WSP from September 11, 2003 until December 1, 2004. Although Defendants argue 4 that Mr. Florer’s claims arise generally from the 2004 kosher menu that is applied statewide, the Court 5 does not agree. Mr. Florer’s new allegations do not serve as additional support for the prior claim, but as 6 grounds for new claims stemming from different periods of time at different institutions. These temporal 7 and geographical distinctions remove Mr. Florer’s claims for the 2006 and 2008 kosher and mainline 8 menus from the res judicata bar. (This is particularly true in light of Defendants’ previous arguments that 9 each DOC institution is expected to follow the kosher menu that is developed and maintained at the DOC 10 level by the food program manager but if a inmate alleges that something is wrong with how the menu is 11 being served at a particular institution, the DOC food program manager has no control over the menu as 12 applied in the institutions. Dkt. # 174-2, pp. 8-9.11) This means that Mr. Florer’s new claims are distinct 13 from his previous claims that the WSP menu was nutritionally deficient, where he was required to sue 14 individual defendants employed at WSP where the menu was served. 15 As to Mr. Florer’s allegations that the 2004 kosher menu that he received at WCC, CBCC and 16 SCCC was nutritionally deficient, Defendants further argue that Mr. Florer could have asserted this claim 17 during the time while the Eastern District case was pending because this claim is based on the statewide 18 menu. However, these claims also occurred in a time period distinct from that of the Eastern District 19 case and Mr. Florer alleges that the 2004 menu as written does not meet nutritional and dietary guidelines. 20 As noted above, Mr. Florer allegations in the Eastern District case as to the 2004 kosher menu were based 21 on the diet he received for the six month period of time he was in lockdown at WSP. See, e.g., ED Dkt. # 22 34, p. 32. As explained by Judge Shea in that case, Mr. Florer did not dispute that the DOC had a policy 23 to provide him with a kosher diet, but he was arguing that the diet he was actually served was 24 nutritionally inadequate. Dkt. # 446, p. 4. 25 Defendants further argue that Mr. Florer should have been required to amend his pleading to 26 27 28 11 As Food Program Manager for the DOC, Cheryl Johnson attested that she plans menus and establishes the three week kosher menu cycle for the DOC and that each institution within the DOC is instructed to follow the three week kosher menu. (ED Dkt. # 174, Exh. 6). She also attested that each institution may make adjustments as necessary if menu items are unavailable. Id. ORDER Page - 10 1 allege these claims in the Eastern District case and that his failure to do so bars him from bring them now. 2 This is not true. See SEC v. First Jersey Securities, Inc., 101 F.3d 1450, 1464 (2nd Cir. 1996) (“If a 3 defendant engaged in actionable conduct after a lawsuit is commenced, the plaintiff may seek leave to file 4 a supplemental pleading to assert a claim based on the subsequent conduct .... But he is not required to do 5 so, and his election not to do so is not penalized by application of res judicata to bar a later suit on that 6 subsequent conduct.”); Los Angeles Branch NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 7 (9th Cir. 1984). 8 In this case, it appears that Mr. Florer is alleging that the 2004, 2006 and 2008 kosher and 9 mainline menus as written are nutritionally and religiously deficient in violation of his First and Eighth 10 Amendment rights (and RLUIPA). His claim is that the menus are supposed to be written according to 11 certain governmental guidelines and they did not meet those guidelines. He does not appear to be 12 attacking the menus on the basis of how they are being applied in the particular institutions where he has 13 been or is housed. Consequently, these new allegations require that he sue individuals who are 14 responsible for the content of the menus. This Court’s conclusion that allegations in Mr. Florer’s 15 proposed amendment do not arise from the same nucleus of transactional facts as those in his previous 16 litigation is further supported by comments made by Judge Shea during trial in the Eastern District case: 17 Mr. Florer So this is an issue that we were at yesterday. You were saying, well, you need to prove that since the menu was written in ‘04 that these dietary intakes haven’t changed since ‘05. Well, the person who wrote the menu in ‘04, Cheryl Johnson, used – should have used these guidelines, and I have a letter from her. ...My concern is this: So whether the Kosher diet is nutritionally adequate, is that an issue or not in this case? Because I have another case in the Western District, and I could use this over there, 2005 guidelines, with Ms. Johnson’s 2005 – 2006 Kosher menu, Lachney’s report, and I can show that, okay, the diet is nutritionally deficient, does not meet RDI’s as DOC policy states. But if they win here, then – and they say, well, the Kosher diet is all of a sudden nutritionally adequate, they win here, then I’m stopped from litigating the case from over there with my evidence. The Court: That’s probably true. Your case here – who’s your case against over there? Mr. Florer: Cheryl Johnson, the person who wrote the menu. The Court: Well, that’s a different case than this defendant. This defendant – Mr. Florer: I realize that. But if they win this with Lachney because I can’t use this, then they just take it over there and say, well, guess what, nutritionally adequate. The Court: That’s correct. 18 19 20 21 22 23 24 25 26 27 28 ORDER Page - 11 1 Mr. Florer: Right. 2 The Court: That’s a good analysis on your part. What do you want to do? 3 Mr. Florer: Dismiss with –without prejudice so I can just go over there and litigate my case. The Court: No. This defendant is different from Ms. Johnson. You have an issue. And I think I always understood your issue, Mr. Florer, to be with the DOC Kosher diet and its nutritional content, but I had told you at some point in the past that that was not the – this issue, you weren’t taking on the State, and you didn’t have any person here who was a defendant in this State – in the case who would get to that point. You were – you’re right. You’re right over in the Western District with the right person who devised the diet. This person either did not did not by her behavior violate your rights. 4 5 6 7 8 9 Dkt. # 174, pp. 14-16 (CM/ECF page numbering). 10 For these reasons, the undersigned concludes that the proposed allegations do not arise from the 11 same nucleus of transactional facts as those contained in the prior complaint and thus are not barred by 12 res judicata. 13 Defendants make no argument that any rights or interest established in the prior judgment would 14 be destroyed or impaired by prosecution of the second action or that substantially the same evidence 15 would be presented in the two actions. Based on its review of the proposed amendments, the Court 16 concludes that these factors are not implicated by allowing the amendment as the cases are not identical. 17 The Court need also not address the remaining res judicata factors based on its finding that the proposed 18 allegations do not arise from the same nucleus of transactional facts as those contained in the prior 19 complaint. 20 B. Claims Under RLUIPA 21 Defendants also argue that Mr. Florer is precluded from alleging that the kosher diet violates his 22 rights under RLUIPA because he could have brought a claim for recovery under RLUIPA in the Eastern 23 District Case. Dkt. # 165, p. 7.12 24 received at WSP from the 2004 kosher menu violated his rights under RLUIPA. Clearly, those claims 25 would be barred under the doctrine of res judicata as he could have brought them in the Eastern District 26 case, but chose only to bring his claims under the First Amendment. See, Int’l Union of Operating Eng’rs This would be true if Mr. Florer now sought to claim that the diet he 27 12 28 Mr. Florer sought to bring a claim for recovery under RLUIPA in the Eastern District case, but his motion was denied as he made the claim only against individuals and entities who were not governments or state actors. (ED Dkt. # 179, p. 6). ORDER Page - 12 1 v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993) (The doctrine of res judicata bars a second suit on the same 2 claim or on different claims arising from the same facts – thus, the bar reaches both grounds of recovery 3 that were asserted and those that were not asserted but could have been.) In ruling on his claim that the 4 kosher menu was religiously inadequate, Judge Shea noted that “Defendants and the Court further assume 5 that Plaintiff’s First Amendment claim is one of free exercise.” (ED Dkt. # 445, p. 4). As noted above, 6 however, Mr. Florer is not making any new claims based on the time he spent at WSP. 7 The Court disagrees with Defendants’ assertion that they will be prejudiced by the inclusion of a 8 RLUIPA claim in this action as they have been on notice from the onset that Mr. Florer alleged violation 9 of RLUIPA. Mr. Florer’s original complaint included allegations of violation of RLUIPA (Dkt. # 1, p. 4), 10 as did his First Amended Complaint. See, e.g., Dkt. # 62, p. 18. Thus, Defendants’ argument that the 11 doctrine of res judicata bars the raising of a RLUIPA claim is without merit. 12 C. 13 Other Considerations Regarding Proposed Amendment Defendants also argue that if Mr. Florer is permitted to amend his complaint, they will have to file 14 another answer, and be required to engage in another round of discovery. They state that they have 15 already engaged in extensive discovery, producing 10,482 documents responsive to requests for 16 production, based on the content of the First Amended Complaint. Dkt. # 165, Exh. 1. ( Mr. Florer 17 disputes the accuracy of this statement, claiming that most of the documents produced were billing 18 invoices for food purchases for the mainline diet. Dkt. # 172, p. 4.). Defendants also argue that their 19 motion for summary judgment remains pending. 20 In their motion for summary judgment, Defendants request dismissal of Mr. Florer’s claims 21 regarding the kosher diet under the doctrine of res judicata, argue that they are entitled to qualified 22 immunity and in the alternative, requested a stay pending judgment in the Eastern District case. Dkt. # 23 141, p. 5. The Court has addressed the issue of res judicata in this Order. A stay was granted and has 24 now been lifted. There can be no prejudice to the Defendants by permitting the Plaintiff to amend his 25 complaint so the allegations are clear and the Defendants will be in a position to again raise the qualified 26 immunity defense. 27 28 With the proposed amendments, numerous DOC employees and three Washington private food contractors and several claims including a retaliation claim and those under RCW 7.72 (Product Liability ORDER Page - 13 1 Actions), 21 C.F.R. § 101.9 (Nutritional Labeling of Food) and 9 C.F.R. § 317 (Labeling, Marking 2 Devices and Containers) will be deleted. Although the case has been on file for a number of years, 3 discovery has been stayed twice while Defendants sought dismissal and the parties’ awaited judgment in 4 the Eastern District case. 5 6 7 Accordingly, the Court finds that granting leave to amend will not cause undue prejudice or delay nor does it find that the amendment is sought in bad faith. Therefore, it is ORDERED: (1) Plaintiff’s motion to amend (Dkt. # 161) is GRANTED with regard to Mr. Florer’s allegations that the 2004, 2006 and 2008 kosher and mainline menus received by him at WCC, CBCC and SCCC are religiously and nutritionally inadequate. Plaintiff shall file a proposed Third Amended Complaint on or before May 29, 2009 to include factual allegations as to Defendants Cheryl Johnson Bales and Jay Jackson and “Registered Dietician Identified in Grievance Log No. 0823868". In addition, Plaintiff must include factual allegations regarding the applicability of kosher menus in light of the fact that Plaintiff stopped requesting kosher menus three years ago, in April 2006. (2) The Clerk shall strike Defendants’ motion for summary judgment (Dkt. # 141) from the docket. The Court will issue a new scheduling order after the filing of a new complaint and Defendants’ answer. (3) The Clerk shall send copies of this Oder to Plaintiff and counsel for Defendants. 8 9 10 11 12 13 14 15 DATED this 4th day of May, 2009. 16 A 17 18 Karen L. Strombom United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 ORDER Page - 14
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