The opinion
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8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 ETUATE SEKONA, No. 2:17-CV-2479-JAM-DMC-P
12 Plaintiff,
13 v. FINDINGS AND RECOMMENDATIONS
14 E. HOROWITZ,
15 Defendant.
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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’s motion to dismiss (ECF No. 26).
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1 BACKGROUND
2 Plaintiff is an inmate within the California Department of Corrections and
3 Rehabilitation (CDCR) system. This action proceeds on plaintiff’s civil rights complaint1,
4 submitted on November 20, 2017. See ECF No. 1. Plaintiff’s complaint contains two separate
5 claims of medical indifference against defendant Horowitz. In its May 15, 2019, findings and
6 recommendations, the Court summarizes plaintiff’s allegations as follows:
7 Plaintiff alleges Defendant[] violated his Eighth Amendment right against
cruel and unusual punishment by denying him proper medical treatment
8 and delaying further medical treatment. Plaintiff’s claims seem to arise out
of a series of injuries and medical conditions, including a heart condition,
9 stomach condition, and concussion. Plaintiff’s complaint appears to frame
two claims: (1) Plaintiff asserts Dr. E. Horowitz was deliberately
10 indifferent to Plaintiff’s medical needs by discharging him from the
hospital, placing him in a holding cell for four to five hours, where
11 Plaintiff had to lay on a concrete floor with a concussed head and without
pain killers or medical help. Plaintiff further contends that he had a seizure
12 on July 4, 2014, and Dr. Horowitz was deliberately indifferent to his
medical needs by directing the nurse to keep him in his cell until Dr.
13 Horowitz returned two days later. Further, Plaintiff charges that (2) Dr. E.
Horowitz denied him access to a cane or walker for three years and has
14 declined to further treat Plaintiff for the past three years. Plaintiff contends
this delay and denial of treatment constitutes deliberate indifference to his
15 serious medical needs. [. . .]
16 ECF No. 16, pg. 2.
17 On February 12, 2020, defendant submitted this motion to dismiss plaintiff’s
18 complaint, arguing that plaintiff’s claims are barred by the doctrine of res judicata. See ECF No.
19 26. On March 2, 2020, plaintiff submitted a response to defendant’s motion to dismiss. See ECF
20 No. 29. On March 5, 2020, defendant submitted a reply to plaintiff’s response. See ECF No. 30.
21 The Court now reviews defendant’s motion to dismiss.
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27 1 This action proceeds solely on plaintiff’s Eighth Amendment claims against
defendant E. Horowitz. See ECF No. 14 (screening order); see also ECF No. 16 (screening
28 F&Rs).
1 STANDARD OF REVIEW
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 In deciding a Rule 12(b)(6) motion, the Court generally may not consider materials
28 outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998);
1 Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The Court may, however, consider: (1)
2 documents whose contents are alleged in or attached to the complaint and whose authenticity no
3 party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question,
4 and upon which the complaint necessarily relies, but which are not attached to the complaint, see
5 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials
6 of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir.
7 1994).
8 Finally, leave to amend must be granted “[u]nless it is absolutely clear that no
9 amendment can cure the defects.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per
10 curiam); see also Lopez v. Smith, 203 F.3d 1122, 1126 (9th Cir. 2000) (en banc).
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12 DISCUSSION
13 Defendant argues that plaintiff’s claims against defendant Horowitz have been
14 previously raised and are thus barred by res judicata. The Court agrees with defendant as regards
15 plaintiff’s medical indifference claim associated with his 2014 concussion. However, the Court
16 disagrees that plaintiff’s claim of medical indifference for failure to provide a cane/walker and
17 additional care is barred by res judicata.
18 Two related doctrines of preclusion are grouped under the term “res judicata.” See
19 Taylor v. Sturgell, 553 U.S. 880, 128 S. Ct. 2161, 2171 (2008). One of these doctrines – claim
20 preclusion – forecloses “successive litigation of the very same claim, whether or not relitigation
21 of the claim raises the same issues as the earlier suit.” Id. Stated another way, “[c]laim
22 preclusion. . . bars any subsequent suit on claims that were raised or could have been raised in a
23 prior action.” Cell Therapeutics, Inc. v. Lash Group, Inc., 586 F.3d 1204, 1212 (9th Cir. 2009).
24 “Newly articulated claims based on the same nucleus of facts are also subject to a res judicata
25 finding if the claims could have been brought in the earlier action.” Stewart v. U.S. Bancorp, 297
26 F.3d 953, 956 (9th Cir. 2002). Thus, claim preclusion prevents a plaintiff from later presenting
27 any legal theories arising from the “same transactional nucleus of facts.” Hells Canyon
28 Preservation Council v. U.S. Forest Service, 403 F.3d 683, 686 n.2 (9th Cir. 2005).
1 The party seeking to apply claim preclusion bears the burden of establishing the
2 following: (1) an identity of claims; (2) the existence of a final judgment on the merits; and (3)
3 identity or privity of the parties. See Cell Therapeutics, 586 F.3d at 1212; see also Headwaters,
4 Inc. v. U.S. Forest Service, 399 F.3d 1047, 1052 (9th Cir. 2005). Determining whether there is an
5 identity of claims involves consideration of four factors: (1) whether the two suits arise out of the
6 same transactional nucleus of facts; (2) whether rights or interests established in the prior
7 judgment would be destroyed or impaired by prosecution of the second action; (3) whether the
8 two suits involve infringement of the same right; and (4) whether substantially the same evidence
9 is presented in the two actions. See ProShipLine, Inc. v. Aspen Infrastructure Ltd., 609 F.3d 960,
10 968 (9th Cir. 2010). Reliance on the first factor is especially appropriate because the factor is
11 “outcome determinative.” Id. (quoting Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987
12 (9th Cir. 2005)). As to privity of the parties, “privity . . . [arises] from a limited number of legal
13 relationships in which two parties have identical or transferred rights with respect to a particular
14 legal interest.” Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1053 (9th Cir. 2005).
15 Here, defendant argues that plaintiff’s claims against him are barred by the
16 doctrine of res judicata. According to defendant, plaintiff has attempted, and failed, to litigate
17 identical claims against Dr. Horowitz on two previous occasions. Specifically:
18 In 2016, Plaintiff sued Dr. Horowitz for the same June 2014 medical
deliberate-indifference that he is reliant upon in the instant case. Indeed, in
19 Sekona v. Holowitz, 2:16-cv-00608-CKD (Holowitz), Plaintiff claimed
Dr. Horowitz failed to treat a concussion and CTE following a June 27,
20 2014 excessive-force incident at Mule Creek State Prison. (Def.’s RJN,
Ex. A at 3, 5.) Plaintiff also claimed that he was deprived of medical
21 accommodations, including a disability vest and medication, following
this incident. (Id. at 5.) As a result, Plaintiff claimed that he suffered from
22 depression, anxiety, and other maladies. (Id.) The Magistrate Judge
determined that Plaintiff failed to state a claim, but afforded Plaintiff leave
23 to amend. (Id. at 12.) Plaintiff failed to timely amend his complaint.
24 If once was not enough, Plaintiff subsequently filed suit against Dr.
Horowitz for the same 2014 violations in Sekona v. Hernandez, No. 2:17-
25 cv-0346-KJM-EFB (Hernandez). (Def.’s RJN, Ex. B at 7.) There, Plaintiff
generally claimed that Defendant Horowitz denied Plaintiff a vest and
26 cane, and denied other treatments beginning in April 2014. (Id.) He also
claimed that he was assaulted on June 27, 2014, and suffered from CTE,
27 leading to a six-day stay at UC Davis Hospital. (Id.) Upon return to his
institution, Plaintiff claimed that Dr. Horowitz was unavailable during the
28 July fourth weekend and as a result failed to meet his treatment needs as
1 he suffered from an alleged concussion. (Id.) And again, the complaint
was dismissed for failure to state a claim. (Id. at 27.) Plaintiff amended the
2 complaint in that action, but abandoned claims against Dr. Horowitz, as
the second screening order found claims cognizable against other
3 defendants. (Id. at 36.) When two suits arise from the same nucleus of
facts, the identity of claims element has been met. See Tahoe Sierra
4 Preservation Council, Inc., 322 F.3d at 1078.
5 ECF No. 26-1, pgs. 3-4.
6 i. Identity of Claims
7 There is clearly an identity of claims between the current action and plaintiff’s two
8 previous suits against defendant Horowitz. However, the Court acknowledges that plaintiff does
9 not make one overarching claim of medical indifference but instead establishes two distinct
10 claims, one related to treatment of his concussion and one related to the provision of ambulatory
11 equipment. As in the present case, in Sekona v. Holowitz, 2:16-cv-00608-CKD (Holowitz),
12 plaintiff claimed that Dr. Horowitz2 failed to adequately treat plaintiff’s concussion after he
13 suffered an assault at Mule Creek State Prison on June 2014. See Sekona v. Holowitz, 2:16-cv-
14 00608-CKD, ECF No. 7, pg. 3. Also, in Sekona v. Hernandez, No. 2:17-cv-0346-KJM-EFB
15 (Hernandez), plaintiff, as in the present case, alleged that, around 2014, Dr. Horowitz denied
16 plaintiff a vest, a cane, and access to proper medical case. See Sekona v. Hernandez, No. 2:17-cv-
17 0346-KJM-EFB, ECF No. 14, pg. 3.
18 ii. Final Judgement on the Merits
19 The Court finds that the dismissal in Holowitz may be considered a final judgment
20 on the merits as regards plaintiff’s medical indifference claim related to his concussion. Claims
21 brought under § 1983 are subject to claim preclusion bars. See Holcombe v. Hosmer, 477 F.3d
22 1094, 1097 (9th Cir. 2007). In Holowitz, the Magistrate Judge determined that plaintiff failed to
23 state a claim against Horowitz, but afforded plaintiff leave to amend. However, plaintiff failed to
24 timely amend his complaint and the case was ultimately dismissed pursuant to Federal Rule of
25 Civil Procedure 41(b). Under FRCP 41(b), “[u]nless the dismissal order states otherwise, a
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2 In Sekona v. Holowitz, 2:16-cv-00608-CKD, plaintiff refers to defendant. Dr.
27 Horowitz as “Dr. Holowitz.” However, plaintiff acknowledges that this was a spelling error on his
part. See ECF No. 29, pg. 3.
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1 dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of
2 jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an
3 adjudication on the merits.” (bold added). Therefore, Holowitz may be considered to have
4 reached final judgment on the merits for the purposes of claim preclusion.
5 However, the Court does not find that Hernandez reached final judgement on the
6 merits, such that plaintiff’s medical indifference claim relating to his cane/walker is barred.
7 Defendant argues that it is well established that a dismissal for failure to state a claim under
8 Federal Rule of Civil Procedure 12(b)(6) is a judgment on the merits to which res judicata
9 applies. See ECF No. 26-1, pg. 4; citing Federated Dep't Stores v. Moitie, 452 U.S. 394, 399 n.3
10 (1981). However, the Court recognizes that neither of the two prior suits against defendant
11 Horowitz were resolved via a 12(b)(6) motion. There is precedent within the Eastern District of
12 California that dismissal for failure to state a claim at the screening stage of § 1983 prisoner
13 actions may qualify as “judgment on the merits.” See Evans v. Beck, No. 1:12-CV-00284-AWI-
14 MJS (PC), 2012 U.S. Dist. LEXIS 105245, at *5-8 (E.D. Cal. July 27, 2012) (§ 1983 prisoner
15 action relying on previous screening dismissal for the assertion that the present claim was
16 previously decided on the merits and thus barred under res judicata.). However, in Evans, the
17 screening dismissal upon which the Court relied on was an order dismissing the case without
18 leave to amend, unlike Hernandez, which was dismissed with leave to amend. Id.; referencing
19 Anthony Ray Evans v. Gonzales, E.D. Cal. Case No. 1:10-cv-01680-DLB PC.
20 In Hernandez, plaintiff’s original complaint was dismissed without prejudice
21 because plaintiff’s claims: (1) were too vague and conclusory to state a cognizable claim, and (2)
22 improperly joined unrelated claims and defendants in a single lawsuit. As such, amendment in
23 Hernandez necessitated proceeding with certain claims and defendants and abandoning others in
24 that particular action. Therefore, plaintiff’s medical indifference claims against Horowitz in
25 Hernandez were not adjudicated on the merits, and there is legitimate reason to suspect that they
26 could not have been raised in that case without violating that Court’s dismissal order. To the
27 extent defendant disagrees with this assessment, the burden of establishing res judicata rests on
28 the party asserting claim preclusion and defendant provides no convincing argument to the
St OVE ENTE EAINI IVING UIC OPO er OY □□□
1 | contrary. Therefore, plaintiff's medical indifference claim relating to the deprivation of a
2 | cane/walker and subsequent medical care is not barred by the doctrine of res judicata.
3 iii. Privity
4 Third, the privity element is clearly met as to the concussion claim. Both Holowitz
5 | and the present action against defendant Horowitz arise as challenges to the 2014 medical
6 | decisions by Dr. Horowitz at Mule Creek State Prison following an excessive-force incident.
7
8 CONCLUSION
9 Based on the foregoing, the undersigned recommends that:
10 1. Defendant’s motion to dismiss (ECF No. 26) be granted in part and denied
11 | in part;
12 2. Plaintiff's first claim of medical indifference relating to his 2014
13 | concussion be dismissed with prejudice; and
14 3. This action be allowed to proceed solely on the second claim that Dr. E.
15 || Horowitz denied plaintiff access to a cane or walker and further medical treatment.
16 These findings and recommendations are submitted to the United States District
17 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days
18 | after being served with these findings and recommendations, any party may file written
19 | objections with the court. Responses to objections shall be filed within 14 days after service of
20 | objections. Failure to file objections within the specified time may waive the right to appeal. See
21 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).
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23 | Dated: August 31, 2020 Sx<o_-
24 DENNIS M. COTA
25 UNITED STATES MAGISTRATE JUDGE
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