(PC) Candler v. Palko ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH CANDLER, No. 2:19-CV-0394-MCE-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 E. PALKO, 15 Defendant. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. Pending before the Court is Defendant Palko’s motion to dismiss, ECF No. 23. 19 Plaintiff filed a late opposition, ECF No. 25. According to Defendant, the current action is barred 20 because Plaintiff’s claim has already been decided in Candler v. Baker, et al., E. Dist. Cal. Case 21 No. 2:17-CV-1885-KJM-AC (prior action). 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 I. BACKGROUND 2 A. The Current Action 3 The current action proceeds on Plaintiff’s original complaint, filed on March 5, 4 2019. See ECF No. 1.1 Plaintiff’s claim relates to events which allegedly occurred in July 2016 5 while he was housed in administrative segregation. See id. at 5. Plaintiff claims Defendant Palko 6 was deliberately indifferent to Plaintiff’s suicidal ideations. Plaintiff alleges that defendant Palko 7 spoke with him and heard him say he felt “the need” to hang himself with a bedsheet. Id. at 6. 8 After hearing his state of mind, Defendant Palko sent him back to his room, with no extra 9 precautionary measures, where he had a bedsheet. Id. Still feeling the need to hang himself, and 10 being all alone with a bedsheet, Plaintiff attempted to hang himself. Id. at 6-7. Seeing this, 11 Officer Marquez entered Plaintiff’s cell and sprayed him with pepper spray, preventing Plaintiff 12 from hanging himself. Id. at 7. 13 The Court authorized service on Defendant Palko on November 5, 2019. See ECF 14 No. 11. Defendant Palko waived service on April 9, 2020, see ECF No. 22, and filed the instant 15 motion to dismiss based on res judicata on May 1, 2020, see ECF No. 23. Plaintiff filed an 16 untimely opposition on July 27, 2020. See ECF No. 25. Defendant did not file a reply. 17 B. The Prior Action 18 The prior action was originally filed in the Sacramento County Superior Court and 19 removed to this Court on September 11, 2017. See ECF No. 1 (prior action). The court screened 20 the complaint and issued an order on September 13, 2017. See ECF No. 4 (prior action). Judge 21 Claire summarized Plaintiff’s allegations in the prior action as follows: 22 . . . Plaintiff alleges, among other things, that: (1) defendant Palko violated his Eighth Amendment rights by exhibiting deliberate 23 indifference to his serious medical needs when, despite his contentions that he was suffering suicidal thoughts, she cleared him to return to his cell 24 (ECF No. 2 at 11-12); (2) defendants Marquez, Rashid, and Gonzales violated his Eighth Amendment rights by telling Palko that plaintiff was 25 “just playing games” and not actually suicidal (id. at 12); (3) defendant Whitehead violated plaintiff’s First Amendment rights by intimidating and 26 threatening him for filing staff complaint (id. at 12-13); (4) defendant Baker violated plaintiff’s Eighth Amendment right to be free from cruel 27 1 Further citations to documents filed with the Court refer to documents filed in the 28 current action unless otherwise noted. 1 and unusual punishment by sexually harassing him (footnote omitted) (id. at 15-16); (5) defendants Rashid, Gonzalez, Baker, Marquez, and 2 Whitehead violated plaintiff’s First Amendment rights by refusing to let him go to the canteen as a form of retaliation for filing staff complaints 3 (id. at 16-17). . . . 4 ECF No. 4, pg. 2 (prior action). 5 Judge Claire concluded Plaintiff’s complaint in the prior action violated Federal 6 Rule of Civil Procedure 22(a)(2). Specifically, the court stated: 7 At the outset, the court notes that plaintiff’s complaint, despite having been removed from state court, is now subject to the federal rules 8 of civil procedure. See Fed. R. Civ. P. 81(c)(1) (“These rules apply to a civil action once it is removed from state court.”). Plaintiff’s complaint 9 violates these rules insofar as it attempts to bring unrelated claims against multiple defendants. Federal Rule of Civil Procedure 20(a)(2) requires that 10 the right to relief against multiple defendants arise out of common events and contain common questions of law or fact. Here, plaintiff has alleged at 11 least two separate claims, namely the deliberate indifference to serious medical needs claim against defendants Palko, Gonzalez, Marquez, and 12 Rashid and the various retaliation claims which plaintiff alleges are all part of a “campaign of retaliation” for filing staff complaints. These claims 13 do not appear to bear any relation to each other. Plaintiff should file an amended complaint which pursues only one of these causes of action. 14 Alternatively, he may allege how, if at all, these incidents arise out of common facts or events. 15 ECF No. 4, pg. 4 (prior action). 16 17 Plaintiff filed a first amended complaint in the prior action on October 4, 2017. 18 See ECF No. 7 (prior action). On October 17, 2017, the court determined the first amended 19 complaint was appropriate for service. See ECF No. 10 (prior action). The court also ordered 20 that Palko be terminated as a party to the prior action for failure to state a claim because the first 21 amended complaint did not name Palko. See id. The remaining defendants filed their answers on 22 November 16, 2017, see ECF No. 11 (prior action), and August 21, 2018, see ECF No. 10 (prior 23 action). Defendants filed a motion for summary judgment in the prior action on June 7, 2019, see 24 ECF No. 28 (prior action), which the court granted in full on October 1, 2020, see ECF No. 44 25 (prior action). Judgement in the prior action was entered the same day. See ECF No. 45 (prior 26 action). Plaintiff did not appeal. 27 / / / 28 / / / 1 In granting summary judgment, the Chief District Judge adopted in full findings 2 and recommendations issued on March 11, 2020. See ECF Nos. 40 (Magistrate Judge’s findings 3 and recommendations) and 44 (Chief District Judge’s order). The findings and recommendations 4 in the prior action described Plaintiff’s claims as follows: 5 Plaintiff’s first amended complaint (“FAC”), ECF No. 7, presents four claims for relief: (1) retaliation in violation of the First Amendment, 6 against defendant correctional officers Baker, Gonzalez, Rashid, Whitehead and Marquez; (2) conspiracy to retaliate in violation of the 7 First Amendment, against defendants Baker, Gonzalez, Rashid, Whitehead and Marquez; (3) interference with medical care in violation of the Eighth 8 Amendment, against defendants Gonzalez, Rashid, Whitehead and Marquez; and (4) sexual harassment in violation of the Eighth Amendment 9 against defendants Baker and Gonzalez. ECF No. 10 at 3. 10 ECF No. 40, pgs. 1-2 (prior action). 11 With respect to Eighth Amendment deliberate indifference claims related to 12 medical care, the court discussed claims arising in July 2016, see id. at 11-15 (prior action), and 13 August 2016, see id. at 15-18 (prior action). Claims arising in August 2016 are unrelated to the 14 claim against Defendant Palko in the current action and are not discussed here. See id. at 15-18. 15 (prior action). 16 As to the July 2016 claim in the prior action, which the court discussed alongside 17 related retaliation claims not raised in the current action, the Court stated: 18 Plaintiff has not identified evidence to support essential elements of his claims that defendants Gonzales, Rashid and Marquez acted with 19 deliberate indifference to his serious mental health needs on July 24, 2016, and that their interference with his mental health care was retaliatory. 20 Plaintiff testified at his deposition that he heard Gonzales, Rashid and Marquez tell Dr. Palko “that I was playing games.” Pl. Dep. at 66:22-23. 21 Later in the deposition he clarified that Marquez had made this statement, and that Gonzalez and Rashid had nodded in agreement. Pl. Dep. at 90:3- 22 19. Each defendant has declared that he did not speak with Dr. Palko about plaintiff’s mental health condition or state of mind. See ECF No. 28- 23 7 at 3 (Gonzales Decl.); ECF No. 28-10 at 2-3 (Rashid Decl.); ECF No. 28-8 at 3 (Marquez Decl.). While Dr. Palko does state that her suicide risk 24 evaluation process generally includes consultation with custody and nursing staff, and that she did consult with these groups about plaintiff that 25 day (see ECF No. 28-12 at 3-5), neither her written evaluation nor her declaration specify any individual with whom she spoke. For purposes of 26 discussion, the court will assume that whether defendants made the alleged statements to Dr. Palko is disputed. 27 28 / / / 1 Even if Dr. Palko did speak with the defendants and they did tell her that they believed plaintiff was faking his depression, however, their 2 opinions were precisely that: opinions, and there is no indication that they influenced Dr. Palko’s decision not to admit plaintiff for treatment. To the 3 contrary, Dr. Palko’s notes document a host of other factors that she took into consideration in exercising her professional judgment. For example, 4 Dr. Palko’s declaration mentions that she talked to the psychiatric technician who had called for plaintiff’s emergency referral. See ECF No. 5 28-12 at 5. The technician told Dr. Palko that s/he had overheard plaintiff make a statement to another inmate which, in turn, suggested to Dr. Palko 6 that plaintiff’s motivation in being evaluated was the secondary gain of being able to have access to female staff. (footnote omitted) See id. at 5. In 7 addition, the record documents Dr. Palko’s personal observation of plaintiff, specifically that when she entered the room, plaintiff “quickly 8 chang[ed] his affect to present as depressed.” See id. at 10. These facts, plaintiff’s limited admissions history, (footnote omitted) and a recent 9 admission in May 2016 in which some of plaintiff’s responses were described as “rehearsed” (see id. at 10), independently support Dr. Palko’s 10 decision not to admit plaintiff, regardless of what defendants may or may not have said to her. 11 The question before the court is not whether Dr. Palko’s assessment was correct, but whether plaintiff has identified evidence 12 supporting his allegations against the defendant correctional officers. He has not. On the record before the court, no jury could find that Gonzales, 13 Rashid and Marquez influenced Dr. Palko’s evaluation of plaintiff’s suicide risk by telling her that plaintiff was faking a mental health crisis. 14 To the extent that plaintiff claims deliberate indifference to his serious mental health needs, defendants are entitled to summary judgment 15 on the following additional and independent grounds. First, plaintiff has not identified evidence from which a jury could conclude that the 16 defendants subjectively knew he was actually a danger to himself on July 24, 2016. Even an unreasonable belief that plaintiff was faking would 17 defeat liability. See Farmer, 511 U.S. at 835, 837. Second, plaintiff has not identified any evidence that the correctional defendants had any authority 18 over what mental health care he would receive. The defendants did not prevent plaintiff from being evaluated by a mental health clinician. The 19 exercise of independent professional judgment by Dr. Palko means that defendants cannot have been the ones who subjected plaintiff to any 20 deprivation of his right to adequate care, as required by statute for liability. See 42 U.S.C. § 1983 (liable party is the person who “subjects, or causes 21 to be subjected” another person to the deprivation of federal rights). 22 ECF No. 40, pgs. 13-14. (prior action). 23 Based on this discussion, the court concluded that the moving defendants were 24 entitled to judgment as a matter of law on Plaintiff’s July 2016 claims. See id. at 15 (prior 25 action). 26 / / / 27 / / / 28 / / / 1 II. STANDARDS FOR MOTION TO DISMISS 2 In considering a motion to dismiss, the Court must accept all allegations of 3 material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The 4 Court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer 5 v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 6 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All 7 ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 8 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual 9 factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). 10 In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. 11 See Haines v. Kerner, 404 U.S. 519, 520 (1972). 12 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 13 of the claim showing that the pleader is entitled to relief” in order to “give the defendant fair 14 notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp v. Twombly, 15 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order 16 to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain 17 more than “a formulaic recitation of the elements of a cause of action;” it must contain factual 18 allegations sufficient “to raise a right to relief above the speculative level.” Id. at 555-56. The 19 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 20 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the 21 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 22 Iqbal, 129 S. Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but 23 it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting 24 Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a 25 defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement 26 to relief.” Id. (quoting Twombly, 550 U.S. at 557). 27 / / / 28 / / / 1 In deciding a Rule 12(b)(6) motion, the court generally may not consider materials 2 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); 3 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) 4 documents whose contents are alleged in or attached to the complaint and whose authenticity no 5 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, 6 and upon which the complaint necessarily relies, but which are not attached to the complaint, see 7 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials 8 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 9 1994). 10 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no 11 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per 12 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc). 13 14 III. DISCUSSION 15 In general, Defendant Palko contends Plaintiff’s current action is barred under the 16 doctrine of preclusion. More specifically, Defendant contends res judicata, or claim preclusion, 17 applies.2 18 There are two distinct doctrines regarding the preclusive effect of prior litigation: 19 (1) claim preclusion, sometimes referred to as res judicata, and (2) issue preclusion, sometimes 20 referred to as collateral estoppel. See Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, 21 Inc., 140 S. Ct. 1589, 1594-1595 (2020). “Preclusion of nonparties falls under the rubric of 22 collateral estoppel rather than res judicata because the latter doctrine presupposes identity [of 23 parties] between causes of action.” Montana v. United States, 440 U.S. 147, 154 (1979). Res 24 judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, 25 conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on 26 2 Defendant also contends the action is barred by the doctrines against claim- splitting and duplicative actions. See ECF No. 23-1, pgs. 13-14. Defendant’s argument is based 27 on the premise that the prior action is still pending. Though it was pending at the time Defendant filed the instant motion to dismiss, the prior action has since been closed and is no longer 28 pending. Therefore, the doctrines against claim-splitting and duplicative actions do not apply. 1 adjudication. See id. Under res judicata, or claim preclusion, a final judgment on the merits in a 2 prior action precludes the same parties or their privies from relitigating claims that were or could 3 have been raised in that action. See Cromwell v. County of Sac, 94 U.S. 351, 352 (1877). Under 4 collateral estoppel, or issue preclusion, once a court has decided an issue of fact or law necessary 5 to its judgment, that decision may preclude re-litigation of the same issue of fact or law in a 6 subsequent suit. Montana, 440 U.S. at 153. 7 As discussed below, while the Court finds that res judicata does not bar the current 8 action, collateral estoppel does because issues necessary to decide Plaintiff’s claim against 9 Defendant Palko in the current action were decided against Plaintiff in the prior action. 10 A. Res Judicata (Claim Preclusion) 11 Defendant argues that this suit is barred by the doctrine of res judicata. Res 12 judicata applies when “a final judgment on the merits bars parties or their privies from raising 13 additional claims on the same cause of action.” See Stratosphere Litig. LLC v. Grand Casinos, 14 Inc., 298 F.3d 1137, 1142 n.3 (9th Cir. 2002). “If a later suit advances the same claim as an 15 earlier suit between the same parties, the earlier suit's judgment prevents litigation of all grounds 16 for, or defenses to, recovery that were previously available to the parties, regardless of whether 17 they were asserted or determined in the prior proceeding.” Lucky Brand Dungarees, Inc., 140 S. 18 Ct. at 1594. “The Ninth Circuit has held that res judicata applies when: (1) the issues decided in a 19 prior action are identical to the issues in the pending action; (2) the prior action resulted in a final 20 judgment on the merits; and (3) the parties involved in the prior action were either identical to, or 21 in privity with the parties in present action.” See Del Campo v. Kennedy, 491 F. Supp. 2d 891, 22 901 (9th Cir. 2006). If any of these elements is unmet, res judicata does not apply. See City of 23 Martinez v. Texaco Trading & Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003). 24 For the reasons discussed below, the Court finds res judicata inapplicable because, 25 while the prior action reached a final judgment on the merits, there is no identity or privity of 26 parties and there is no identity of claims. 27 / / / 28 / / / 1 1. Final Judgment on the Merits 2 It is clear the prior action resulted in a judgment on the merits. Even though the 3 motion for summary judgment in the prior action was still pending when Defendant filed the 4 instant motion to dismiss on May 10, 2020, the court in the prior action subsequently granted 5 summary judgment on October 1, 2020. See ECF No. 44 (prior action). Judgement in the prior 6 action was entered the same day. See ECF No. 45 (prior action). 7 2. Identity or Privity of Parties 8 Identity or privity of parties is an element of res judicata to ensure that the parties’ 9 interests were sufficiently represented in the previous action. Tahoe-Sierra Pres. Council, Inc. v. 10 Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003). 11 Here, Defendant Palko argues there is an identity of parties between the two 12 actions because she was originally named in the prior action. Plaintiff, however, chose not to 13 pursue the prior action as against Palko by not naming her as a defendant when he amended his 14 complaint. Given that Palko was not a party to the prior action beyond the pleading stage, the 15 Court finds that, strictly speaking, the prior action did not involve identical parties. Specifically, 16 the prior action did not result in any decision as to Palko. Thus, there is no identity of parties. 17 Alternatively, Defendant argues there is sufficient privity of parties to apply res 18 judicata. “Even when the parties are not identical, privity may exist if ‘there is ‘substantial 19 identity’ between parties, that is, when there is sufficient commonality of interest.’” Tahoe-Sierra 20 Pres. Council, Inc. 332 F.3d at 1081 (citation omitted). In cases against government employees, 21 privity exists where “each current defendant is a . . . government employee who is ‘so identified 22 in interest with a party to former litigation that he represents precisely the same right in respect to 23 the subject matter involved.’” Konarski v. City of Tucson, 289 F. App’x 242, 244 (9th Cir. 2008) 24 (citing In re Schimmels, 127 F.3d 875, 881 (9th Cir. 1997)). 25 According to Defendant: 26 Here, Defendant assisted the defendants in Keith Candler v. Baker by submitting a sworn declaration that explained her role in the incident, 27 and broadly explained the mental health treatment that Plaintiff received the day of the incident. (Req. Jud. Not., Ex. G at RJN.124-134.) As noted 28 in her declaration, Defendant is an employee of the California Department 1 of Corrections and Rehabilitation (CDCR) (id. at RJN.125)—just like the other defendants in Keith Candler v. Baker. Although she was not a named 2 defendant at the time the motion for summary judgment was filed in that case, she reasonably had an interest in the defense of the case. 3 For one, as a State-licensed psychologist, she undoubtedly had an interest in protecting her license and reputation. (See id., ¶ 1.) Second, as a 4 mentor in CDCR’s Suicide Risk Evaluation Procedure, Defendant had an interest “to ensure clinicians provide the highest standard of suicide risk 5 assessments” to inmate-patients. (Id. at RJN.126, ¶ 2.) Lastly, as a fellow employee of CDCR, Defendant also had an interest in supporting her 6 fellow employees, and defending the critical relationship between custody staff and mental health staff within CDCR. (footnote omitted). 7 ECF No. 23-1, pgs. 12-13. 8 9 In making this argument, Defendant relies on the Ninth Circuit’s decision in In re 10 Schimmels. Defendant states: 11 . . .The Ninth Circuit explored this at length in In re Schimmels: 12 One who prosecutes or defends a suit in the name of another to establish and protect his own rights, or who 13 assists in the prosecution or defense of an action in aid of some interest of his own is as much bound as he would be 14 if he had been a party to the record. 15 In re Schimmels, 127 F.3d at 881 (emphasis added) (alterations, internal citations, and quotation marks omitted). 16 ECF No. 23-1, pg. 12. 17 18 By emphasizing the phrases “or defends” and “who assists,” Defendant appears to 19 ask the Court to find privity exists because Palko assisted with the defense of the prior action. 20 The Court finds this apparent argument misapplies In re Schimmels. The Ninth Circuit began its 21 discussion of privity by noting “[t]he doctrine of res judicata provides that ‘a final judgment on 22 the merits bars further claims by parties or their privies based on the same cause of action.’” In 23 re Schimmels, 127 F.3d at 880-81 (quoting Montana v. United States, 440 U.S. 147, 153 (1979)) 24 (emphasis added). The court also observed that the purposes of res judicata are “likewise 25 implicated ‘when nonparties assume control over litigation in which they have a direct financial 26 or proprietary interest. . . .’” Id. at 881 (quoting Montana, 440 U.S. at 154). Thus, the inquiry is 27 not whether Defendant simply assisted with the defense of the prior action. For Defendant Palko 28 to be a privy of the defendants to the prior action, and thus in privity with them, Defendant must 1 show some direct financial or proprietary link between her interests and those of the defendants to 2 the prior action. Defendant Palko must also show some kind of assumption of control of these 3 interests. 4 The Court finds Defendant has done neither. Defendant attempts to link some of 5 her interests to those represented in the prior action by listing: (1) “an interest in protecting her 6 license and reputation,” (2) “to ensure clinicians provide the highest standard of suicide risk 7 assessments to inmate-patients,” and (3) “defending the critical relationship between custody staff 8 and mental health staff within the CDCR.” ECF No. 23-1, pg. 13. These links are too tenuous to 9 establish Defendant Palko is in privity with any defendant to the prior action in the sense that one 10 assumed control of the other’s direct financial or proprietary interests. While Defendant Palko 11 certainly has an interest in protecting her license and reputation, those interests were not assumed 12 by any defendant in the prior action. Further, these are not direct financial or proprietary interests 13 which are transferrable such that the defendants in the prior action were actually representing 14 these interests. Similarly, ensuring clinicians provide a high standard of care and defending the 15 relationship among staff are not transferable direct financial or proprietary interests. 16 The Court finds Defendant has failed to establish either identity of parties or 17 privity of parties and, for this reason alone, res judicata does not apply. 18 3. Identity of Claims 19 By definition, res judicata cannot apply if the current and prior actions do not 20 involve the same claim. The Ninth Circuit has identified four factors relevant to determining 21 whether successive lawsuits share an identity of claims. See Turtle Island Restoration Network v. 22 U.S. Dep’t of State, 673 F.3d 914, 917-18 (9th Cir. 2012). These factors are: (1) whether rights 23 or interests established in the prior judgment would be destroyed or impaired by prosecution of 24 the second action; (2) whether substantially the same evidence is presented in the two actions; 25 (3) whether the two suits involve infringement of the same right; and (4) whether the two suits 26 arise out of the same transactional nucleus of facts. See id. The Ninth Circuit has also held that 27 the fourth factor is the central criterion in determining whether there is an identity of claims for 28 purposes of res judicata. See Owens v. Kaiser Found. Health Plan, Inc., 422 F.3d 708, 714 (9th 1 Cir. 2001). 2 Here, it is clear from the procedural background outlined above that the prior 3 action did not involve any Eighth Amendment medical claims against Defendant Palko because 4 she was dismissed as a defendant to the prior action. Put another way, the question of whether 5 Palko was deliberately indifferent to a serious medical need – the essence of any Eighth 6 Amendment medical claim – was not an issue in the prior action. Strictly speaking, no Eighth 7 Amendment medical claim was raised in the prior action as against Palko. 8 Defendant asserts that the current and prior actions nonetheless share an identity of 9 claims because “Plaintiff already filed a nearly identical suit against Defendant, in which she was 10 dismissed during screening.” ECF No. 23-1, pg. 1. This fact alone does not establish an identify 11 of claims. As Defendant acknowledges, Plaintiff’s deliberate indifference claim as against Palko 12 did not proceed past screening. This occurred, however, because Plaintiff did not name Palko in 13 his amended complaint filed in the prior action, not because the claim was dismissed by the court 14 for some procedural or substantive reason which could constitute a final judgment on the merits. 15 The Court now turns to evaluation of the four factors identified in Turtle Island 16 Restoration Network. 17 a. Will There Be an Impairment or Destruction of Rights? 18 Defendant claims she would suffer prejudice if forced to defend herself in a second 19 lawsuit arising out of the same incident. See ECF No. 23-1, pg. 7. According to Defendant: 20 Although she was terminated from the initial lawsuit by the time defendants in Keith Candler v. Baker filed their motion for summary 21 judgment (Req. Jud. Not., Ex. F at RJN.121-123), Defendant substantially participated in the defense of the action by filing a six-page declaration 22 that explained her role in the incident (Req. Jud. Not., Ex. G at RJN.124- 134). By allowing the instant lawsuit to proceed, Plaintiff now has the 23 benefit of having seen the evidence that Defendant will present in her own defense, and can alter his litigation strategy accordingly. In essence, he 24 gets a second bite at the apple to rebut Defendant’s evidence. Moreover, to the extent that the Court construes the dismissal of 25 Defendant as a dismissal with prejudice (see section I.B., infra), Defendant may suffer prejudice in the form of inconsistent rulings — 26 particularly if Plaintiff appeals the dismissal of Defendant in Keith Candler v. Baker. 27 This factor weighs in Defendant’s favor. 28 Id. 1 Defendant’s argument is not persuasive. The first factor identified in Turtle Island 2 Restoration Network is whether rights or interests established in the prior judgment would be 3 destroyed or impaired by prosecution of the second action. See 673 F.3d at 917-18. The issue is 4 not, as Defendant contends, whether she would suffer prejudice. The issue is whether defendants 5 to the prior action would suffer prejudice. 6 The final judgment in the prior action established nothing on the merits in favor of 7 Palko for the simple reason Palko was not a defendant to the prior action. Instead, the final 8 judgment in the prior action established the moving defendants’ rights and interest in being free 9 from claims of deliberate indifference to a serious medical need based on the facts alleged against 10 those defendants. An adjudication of the claim against Defendant Palko in the current action 11 would do nothing to affect these rights and interests because Defendant Palko’s liability for her 12 conduct was not at issue in the prior action. It is possible one defendant can be liable for her own 13 conduct while others are not held liable for theirs even though the same incident is at issue. 14 Allowing the current action against Palko would result in nothing in terms of the rights and 15 interests of the defendants to the prior action. 16 Because allowing the current action to proceed would not have any effect on rights 17 or interests established by the judgment in the prior action, the Court finds this factor weighs 18 against Defendant’s position. 19 b. Will Substantially the Same Evidence Be Presented in Both Actions? 20 21 Defendant references her declarations made in the prior action and contends “the 22 parties will be retreading the same ground in this lawsuit.” ECF No. 23-1, pg. 7. While there will 23 be overlap in the evidence presented, the thrust will not be the same. With the motion for 24 summary judgment in the prior case, Palko provided her declaration attesting that the moving 25 defendants did not interfere with Plaintiff’s medical care. In the current action, Plaintiff’s claim 26 is necessarily focused on Defendant Palko’s direct conduct with respect to Plaintiff’s medical 27 needs, not her indirect conduct insofar as it affected the moving defendants in the prior action. 28 The prior action involved other defendant’s conduct, which was allegedly influenced by Palko. 1 The current action, by way of distinction, involves Defendant Palko’s own conduct regardless of 2 how others may or may not have acted in response. 3 While there will be overlap, the Court does not find that substantially the same 4 evidence is involved. To the contrary, the current action will involve evidence not relevant or 5 raised in the prior action. This factor also weighs against Defendant’s position. 6 c. Do Both Actions Involve Infringement of the Same Rights? 7 Defendant broadly defines the right Plaintiff alleges has been infringed in both 8 actions as arising under the Eighth Amendment and relating to medical care. See ECF No. 23-1, 9 pgs. 7-8. As in the qualified immunity context, the Court will look to the various pleadings and 10 motions in both actions as a guide. See e.g. Kelly v. Borg, 60 F.3d 664, 667 (9th Cir. 1995) 11 (concluding that a clearly established right for purposes of qualified immunity must be defined 12 more narrowly than the constitutional provision guaranteeing the right, but more broadly than the 13 factual circumstances surrounding the alleged violation). 14 In screening the original complaint in the prior action, Judge Claire summarized 15 Plaintiff’s claim against Palko as follows: “. . . Plaintiff alleges. . . that. . .defendant Palko 16 violated his Eighth Amendment rights by exhibiting deliberate indifference to his serious medical 17 needs when, despite his contentions that he was suffering suicidal thoughts, she cleared him to 18 return to his cell. . . .” ECF No. 4, pg. 2 (prior action). This claim did not proceed to judgment 19 because Plaintiff did not name Palko in his amended complaint filed in the prior action. Judge 20 Claire identified the remaining Eighth Amendment medical care claims as: “interference with 21 medical care in violation of the Eighth Amendment, against defendants Gonzalez, Rashid, 22 Whitehead and Marquez. . . .” ECF No. 40, pgs. 1-2 (prior action). 23 In the current action, Plaintiff claims Defendant Palko was deliberately indifferent 24 to Plaintiff’s suicidal ideations. See ECF No. 1, pgs. 5-7. This current claim is almost identical 25 to the claim originally asserted against Palko in the prior action which did not proceed to 26 judgment because Palko was dropped from the suit when Plaintiff filed his amended complaint in 27 the prior action. 28 / / / 1 Comparing the live claims in the two actions – the claims against Gonzalez, 2 Rashid, Whitehead, and Marquez in the prior action and the claim against Palko in the current 3 action – the Court finds the third Turtle Island Restoration Network factor to be neutral. Though 4 the claims in both actions generally allege infringement of Plaintiff’s Eighth Amendment rights 5 regarding medical care, the prior claim was about interference with access to medical care, 6 whereas the current claim is about denial of medical care. On the one hand, both cases involve 7 Eighth Amendment rights. On the other hand, both cases involve different allegations as to how 8 that right was violated and by whom. 9 d. Do Both Actions Arise Out of the Same Transactional Nucleus of Facts? 10 11 Defendant claims that “there is no question that the two lawsuits arise out of the 12 same common transactional nucleus of facts.” ECF No. 23-1, pg. 8. Defendant argues that the 13 relevant facts in both cases include all the events that transpired on the day that Plaintiff 14 attempted to commit suicide. See id. at 8-9. 15 While Defendant is correct that both actions arise generally from events allegedly 16 occurring on the day Plaintiff attempted to commit suicide in July 2016, the facts alleged to be at 17 the heart of each claim are different. In the current action, Plaintiff alleges that defendant Palko 18 spoke with him and heard him say he felt “the need” to hang himself with a bedsheet. ECF No. 1, 19 pg. 6. After hearing his state of mind, Plaintiff claims Defendant Palko sent him back to his cell, 20 with no extra precautionary measures, where he had a bedsheet. See id. In the prior action, 21 Plaintiff alleged defendants Marquez, Rashid, and Gonzales violated his Eighth Amendment 22 rights by telling Palko that plaintiff was “just playing games” and not actually suicidal. See ECF 23 No. 2, pg. 12 (prior action). Unlike the claim in the prior action, the claim in the current action 24 has nothing to do with what Palko allegedly told any of the defendants to the prior action, or what 25 they may have allegedly said to Palko, or what the defendants to the prior action did or did not do. 26 Based on this evaluation, the Court finds that res judicata is not applicable here. 27 / / / 28 / / / 1 B. Collateral Estoppel (Issue Preclusion) 2 Having concluded that res judicata does not apply, the Court will consider whether 3 the related preclusion doctrine of collateral estoppel bars the current action. 4 Collateral estoppel precludes a party from relitigating an issue actually decided in 5 a prior case and necessary to the judgment. Lucky Brand Dungarees, Inc., 140 S. Ct. at 1594. 6 Collateral estoppel can be used by a defendant to estop a plaintiff from asserting a claim that had 7 previously been litigated and lost against another defendant. Collins v. D. R. Horton, Inc., 505 8 F.3d 874 (2007). A party asserting collateral estoppel must show: (1) the issue or fact decided in 9 a prior adjudication is identical to the one in the present action; (2) the prior adjudication reached 10 a final judgment on the merits; (3) the party being estopped is the party, or is in privity with the 11 party, against whom judgment was passed in a prior action; and (4) precluding re-litigation would 12 not work an injustice against the party who is to be estopped. Comentout v. Pierce County 13 Superior Court, 2017 WL 1957125 (identify the court). “Defensive use of collateral estoppel 14 precludes a plaintiff from re-litigating identical issues by merely switching adversaries. Thus, 15 defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in 16 the first action if possible.” Collins, 505 F3d. at 881. 17 For the reasons discussed below, the Court concludes that each of the four 18 elements required for application of collateral estoppel to bar the current action against Defendant 19 Palko has been satisfied. 20 1. Final Judgment on the Merits 21 As discussed above in the context of res judicata, it is clear the prior action 22 reached a final judgment on the merits. 23 2. The Party to be Estopped is a Party, or in Privity with a Party, Against Whom Judgment was Entered in the Prior Action 24 25 This element is also clearly satisfied. Here, Defendant seeks to estop Plaintiff 26 from litigating his Eighth Amendment claim. Thus, Plaintiff is the party being estopped. In the 27 prior action, judgment was entered in favor of the moving defendants and against Plaintiff. Thus, 28 the party being estopped in the current action is the same party as against whom judgment was 1 entered in the prior action. 2 3. Injustice to the Party to be Estopped from Precluding Re-litigation 3 The Court finds this element favors application of issue preclusion. In the prior 4 action, Plaintiff had a full and fair opportunity to litigate his Eighth Amendment claim against 5 Palko. Why he chose not to do so by omitting Palko from the amended complaint filed in the 6 prior action remains somewhat of a mystery. Nonetheless, Plaintiff’s current claim against 7 Defendant Palko was raised in the prior action and not the subject of Judge Claire’s screening 8 order in that case. 9 Given that Plaintiff voluntarily chose to abandon his claim against Palko in the 10 prior action, the Court does not find that precluding re-litigation would work any injustice against 11 Plaintiff. Application of defensive collateral estoppel to prevent Plaintiff from re-litigating a 12 claim he had every opportunity to litigate in the prior action promotes the preference that all 13 potential parties be joined in a single action if possible. Here, it was possible for Plaintiff’s 14 claims against Palko to have been litigated in the prior action. Application of defensive collateral 15 estoppel here provides plaintiffs an incentive to joint parties in a single lawsuit. See Collins, 505 16 F3d. at 881. 17 4. Identical Issue or Fact from Prior Adjudication 18 Having concluded that three of the four elements favor application of collateral 19 estoppel to bar the current action, the Court considers whether the final element has been met. 20 The inquiry necessarily begins with an analysis of the facts and issues decided in 21 the prior action. In ruling on the motion for summary judgment in the prior action, Judge Claire 22 noted several key facts and issues. Judge Claire noted: (1) “Dr. Palko’s notes document a host of 23 other factors that she took into consideration in exercising her professional judgment”; (2) “For 24 example, Dr. Palko’s declaration mentions that she talked to the psychiatric technician who had 25 called for plaintiff’s emergency referral. . . .”; (3) “In addition, the record documents Dr. Palko’s 26 personal observation of plaintiff, specifically that when she entered the room, plaintiff ‘quickly 27 chang[ed] his affect to present as depressed’”; and (4) “These facts, plaintiff’s limited admissions 28 history, (footnote omitted) and a recent admission in May 2016 in which some of plaintiff’s 1 responses were described as ‘rehearsed’ (citation omitted), independently support Dr. Palko’s 2 decision not to admit plaintiff, regardless of what defendants may or may not have said to her.” 3 ECF No. 40, pgs. 13-14 (prior action). 4 In the current action, Plaintiff claims Defendant Palko was deliberately indifferent 5 for sending Plaintiff back to his cell without precautions against suicide despite telling Palko he 6 was suicidal. The facts and issues outlined above which were decided in the prior action are 7 necessarily involved in deciding the claim in the current action. In particular, the current action 8 will involve the issue of Defendant Palko’s subjective state a mind. This factual issue, however, 9 was already decided against Plaintiff in the prior action in which it was determined that the facts 10 “independently support Dr. Palko’s decision. . . .” Additionally, the facts in the prior action show 11 that Palko exercised professional judgment. Finally, the facts in the prior action indicate that 12 Palko spoke with a psychiatric technician before releasing Plaintiff back to his cell. 13 The Court finds that the facts decided in the prior action would defeat the claim 14 raised in the current action. Thus, the two actions involve identical factual issues necessary to the 15 claims raised in both cases. 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 V. CONCLUSION 2 Based on the foregoing, the undersigned recommends that Defendant Palko’s 3 | motion to dismiss, ECF No. 23, be granted and that this action be dismissed with prejudice as 4 | barred under the doctrine of collateral estoppel. 5 These findings and recommendations are submitted to the United States District 6 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 7 | after being served with these findings and recommendations, any party may file written 8 | objections with the court. Responses to objections shall be filed within 14 days after service of 9 | objections. Failure to file objections within the specified time may waive the right to appeal. See 10 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 11 12 Dated: March 5, 2021 Ssvcqo_ 13 DENNIS M. COTA 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19