# (PC) Jackson v. Biter

> District Court, E.D. California · August 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10029186

## Case

- **Court:** District Court, E.D. California
- **Decided:** August 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 FRED JACKSON, Case No. 1:21-cv-0774-BAM (PC)
12 Plaintiff, ORDER DIRECTING CLERK OF COURT
TO RANDOMLY ASSIGN DISTRICT
13 v. JUDGE TO ACTION

14 BITER., FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
15 Defendant. ACTION WITH PREJUDICE FOR FAILURE
TO STATE A COGNIZABLE CLAIM FOR
16 RELIEF

17 (ECF No. 1)
18 FOURTEEN (14) DAY DEADLINE
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Plaintiff Fred Jackson (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff’s complaint, filed on May
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13, 2021, is currently before the Court for screening. (ECF No. 1.)
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I. Screening Requirement and Standard
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous
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or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary
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relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b).
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1 A complaint must contain “a short and plain statement of the claim showing that the
2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not
3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere
4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken
6 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,
7 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).
8 To survive screening, Plaintiff’s claims must be facially plausible, which requires
9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable
10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret
11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully
12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility
13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.
II. Plaintiff’s Allegations
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Plaintiff is currently housed at California Correctional Institution in Tehachapi, California.
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Plaintiff alleges events in the complaint occurred at Kern Valley State Prison. Plaintiff names
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M.D. Biter, Warden, as the sole defendant.
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Plaintiff alleges as follows. In a prior action, Plaintiff sued Defendant M.D. Biter,
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Warden, for alleged prolonged exposure to arsenic in water. Jackson v. Biter et al., Kern County
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Superior Court, CV-281820 (“Biter I”). On January 22, 2018, Plaintiff was denied access to
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appear at his Biter I court hearing on summary judgment and for appointment of an expert
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witness. The expert witness Plaintiff requested to be appointed in Biter I would show Plaintiff’s
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causation of arsenic long term poisoning and injuries of enlarged prostrate and white
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pigmentation spots. Judge Schuett made a court order for the warden to make Plaintiff available
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by telephone court call appearance for a motion for summary judgment brought by Defendant.
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The prison counselor responsible for making that call lied to Plaintiff claiming she called the
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court, but the court records reflect that she never called into the court for the hearing. Plaintiff
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was blamed for the nonappearance because of the counselor’s intentional obstruction and refusing
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1 to call the court, which denied Plaintiff access to court. Plaintiff was denied access to the court in
2 Biter I for the hearing on the court appointed expert and to respond to defendant’s objections to
3 Plaintiff’s evidence. The judge blamed Plaintiff for not appearing and dismissed the court
4 appointed expert hearing and granted summary judgment for defendant. If Plaintiff had not been
5 denied the appearance, a more favorable outcome would have happened because the court
6 appointed expert would have confirmed the 3-7 years for white pigmentation spots to manifest
7 and not the 20 years as opined by defendant’s expert.
8 At the hearing, Plaintiff could have proved he was eligible for the court fee waivers under
9 state law due to his poverty level. Plaintiff’s appearance would have allowed the court to appoint
10 an expert witness to testify about any disputed facts in the case consistent with long term arsenic
11 exposure. Being denied appearance at the expert witness hearing destroyed Plaintiff’s case and
12 prevented him from moving forward to trial after years of litigation. The judge made a court order
13 to have Plaintiff appear, and Plaintiff cannot force prison officials to have him appear. But the
blame was placed all on Plaintiff for not appearing. Plaintiff claims that the denial of allowing
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him to appear at the court hearing was a deprivation of due process/equal protection. Because
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Plaintiff was not allowed to make the court appearance, the court ruled against Plaintiff on
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discovery evidence and production of documents which was excluded. Plaintiff seems to also
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challenge the trial judge’s decision to exclude evidence and grant summary judgment against
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Plaintiff as an abuse of discretion.
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Plaintiff alleges that on January 17, 2018, in Biter I, the Attorney General delivered the
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opposition to Plaintiff’s response regarding evidence to the summary judgment. The delivery did
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not give Plaintiff time to respond in writing due to the prison mail system. Defendant’s counsel
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was aware that Plaintiff would not be able to respond in writing before the court hearing on
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January 22, 2018 and Plaintiff would be required to orally present his objection. Plaintiff was not
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allowed to appear on the court call, and the trial judge immediately granted defendant’s motion,
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cancelled Plaintiff’s expert witness appointment hearing, and denied Plaintiff’s critical index of
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evidence. Plaintiff’s evidence was excluded due to his denial to appear in court. Plaintiff does
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not identify the remedies he seeks.
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1 III. Discussion
2 Plaintiff’s complaint fails to state a cognizable claim for relief.
3 A. Supervisor Liability
4 Insofar as Plaintiff is attempting to sue Defendant Biter as a supervisor, based solely upon
5 his supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for
6 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556
7 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v.
8 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th
9 Cir. 2002)
10 Supervisors may be held liable only if they “participated in or directed the violations, or
11 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th
12 Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett,
13 567 F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal
participation if the official implemented “a policy so deficient that the policy itself is a
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repudiation of the constitutional rights and is the moving force of the constitutional violation.”
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Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations
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marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).
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To prove liability for an action or policy, the plaintiff “must... demonstrate that his
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deprivation resulted from an official policy or custom established by a... policymaker possessed
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with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d
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707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between
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such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.
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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in
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civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir.
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1982).
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Plaintiff’s conclusory statements, without factual support, are insufficient to state a
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cognizable claim of supervisory liability. See Iqbal, 556 U.S. at 678. Plaintiff has failed to allege
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1 facts to support that any supervisory Defendant participated in or directed the violations, or knew
2 of the violations and failed to act to prevent them. Plaintiff also has failed to plead facts showing
3 that any policy was a moving force behind the assault. See Willard v. Cal. Dep't of Corr. &
4 Rehab., No. 14-0760, 2014 WL 6901849, at *4 (E.D. Cal. Dec. 5, 2014) (“To premise a
5 supervisor's alleged liability on a policy promulgated by the supervisor, plaintiff must identify a
6 specific policy and establish a ‘direct causal link’ between that policy and the alleged
7 constitutional deprivation.”).
8 While Plaintiff alleges that Defendant Biter was ordered by the court in Biter I to allow
9 Plaintiff to appear at the hearing, Plaintiff alleges that actions of another person, the prison
10 counselor and not the warden, were responsible for Plaintiff’s nonappearance. Defendant Biter
11 did not directly participate in or direct the violation.
12 B. First Amendment – Access to Court
13 Plaintiff appears to argue his case is a Fourteenth Amendment Due Process or Equal
Protection claim. However, his claim of being shut out of court due to prison officials refusing to
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produce him for a hearing is a First Amendment claim.
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Prisoners have a First Amendment right of access to the courts. See Lewis v. Casey, 518
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U.S. 343, 346 (1996). Inmates have a “ ‘fundamental constitutional right of access to the courts.’
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” Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)).
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However, the right is limited to direct criminal appeals, habeas petitions, and civil rights actions.
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Id. at 354 (citations omitted). Claims for denial of access to the courts may arise from the
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frustration or hindrance of “a litigating opportunity yet to be gained” (forward-looking access
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claim) or from the loss of a meritorious suit that cannot now be tried (backward-looking claim).
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Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). To state a claim based on denial of access
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to the courts, a plaintiff must allege facts demonstrating that he suffered an actual injury by being
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shut out of court. Id. at 415; Lewis, 518 U.S. at 351. Additionally, to properly plead a denial of
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access to the courts claim, “the complaint should state the underlying claim in accordance with
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Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued, and a like
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plain statement should describe any remedy available under the access claim and presently unique
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1 to it.” Christopher, 536 U.S. at 417-18 (footnote omitted).
2 Here, Plaintiff alleges that he lost an existing case in Biter I, and therefore asserts a
3 “backward looking claim.” When a prisoner asserts a backward-looking claim, “he must show:
4 1) the loss of a ‘non-frivolous’ or ‘arguable’ underlying claim; 2) the official acts frustrating the
5 litigation; and 3) a remedy that may be awarded as recompense but that is not otherwise available
6 in a future suit.” Phillips v. Hust, 477 F.3d 1070, 1076 (9th Cir.2007) (citing Christopher, 536
7 U.S. at 413-414), overruled on other grounds by Hust v. Phillips, 555 U.S. 1150 (2009).
8 The Court has reviewed the records attached to the complaint and takes judicial notice of
9 the court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (The court may take
10 judicial notice of court records. ). In Biter I, after the trial court entered judgment against
11 Plaintiff in the action, Plaintiff appealed the judgment. The Court of Appeal for the Fifth District
12 entered a decision on December 3, 2020 on Plaintiff’s appeal, which states the procedural history
13 of the case. (Appellate Decision, Doc. 1, p. 15 of 67.) In the appeal, among other things, Plaintiff
argued that he required an expert to be appointed and that he was prevented from appearing at the
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hearing by a prison employee who refused to wait and hung up before his appearance. (Appellate
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Decision, Doc. 1, p. 17 of 67.)
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The Court of Appeal addressed all of Plaintiff’s arguments. First, the Court of Appeal
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addressed Plaintiff’s request for appointment of an expert and the trial court’s denial of a court
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appointed expert. (Doc. 1, p. 21-22.) The Court held that, “[California] Evidence Code 731,
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subdivision (c) does not authorize the court to appoint an expert for a party at public expense,”
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and therefore, “the trial court did not abuse its discretion in denying Plaintiff’s motions for
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appointment of an expert witness at public expense.” (Doc. 1, p. 22.) The Court of Appeal held
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that Plaintiff had no right to be appointed an expert, and the trial court acted properly in refusing
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to do so at public expense.
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In the appeal, Plaintiff also argued that he was prevented from appearing at the summary
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judgment hearing and that he wanted oral argument to address evidentiary objections raised by
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defendant. The Court of Appeal addressed the issue of Plaintiff’s failure to appear at the
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summary judgment hearing. The appellate court noted that the judgment was entered based upon
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1 the lack of merits of Plaintiff’s case, rather than upon any failure to appear:
2 “Initially, we reject Plaintiff’s suggestion which was based on Kern County Local
Rule 2.62, that the trial court dismissed his action due to his failure to appear at the
3 hearing. The judgment clearly stated it was based on the granting of defendant’s
summary judgment motion; the order granting that motion found defendant met his
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burden of showing plaintiff could not prove an essential element of his cause of
5 action, plaintiff did not raise a triable issue of material fact, and defendant was
entitled to judgment as a matter of law. Thus, the judgment was based on the
6 merits of the motion, not on plaintiff’s failure to appear at the hearing.” (Doc. 1,
p.25 of 67.)
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The Court of Appeal further addressed Plaintiff’s contentions that the defendant’s
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objections to his evidence in Biter I were not properly served and he was not able to
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oppose the objections because he did not appear at the hearing. (Doc. 1 p. 25.) However,
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the Court of Appeal noted that Plaintiff failed to address in the appeal the merits of the
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objections that defendant raised to plaintiff’s evidence nor did plaintiff challenge the
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sufficiency of the evidence presented by defendant to meet defendant’s burden on the
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summary judgment. The Court held on appeal, “Because plaintiff has not demonstrated
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defendant’s objections were wrongly sustained, we cannot consider the evidence to which
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the trial court sustained objections.” (Doc. 1, p. 27.)
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Based on the above, Plaintiff does not state a cognizable First Amendment claim
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because Plaintiff cannot show the loss of a ‘non-frivolous’ or ‘arguable’ underlying claim.
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Plaintiff’s allegations that he was denied an expert, was prevented from appearing at the
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hearing, the summary judgment was granted against him, are not meritorious. Each of the
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arguments were raised on Plaintiff’s appeal of the trial court’s decision and addressed by
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the Court of Appeal. As noted in the appeal, Plaintiff lost in Biter I because of the failure
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of proof on his part and he was not entitled to appointment of an expert for his case.
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Therefore, Plaintiff does not have a meritorious underlying claim; he did not lose a ‘non-
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frivolous’ or ‘arguable’ underlying claim. Plaintiff merely seeks to use this Section 1983
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action as way to collaterally attack the trial court judgment and appellate decision in Biter
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I. Section 1983 is not a method to re-adjudicate an action.
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1 C. Claim Preclusion – Res Judicata
2 “Under the doctrine of claim preclusion, a final judgment forecloses successive
3 litigation of the very same claim, whether or not relitigation of the claim raises the same
4 issues as the earlier suit.” Taylor v. Sturgell, 553 U.S. 880. 892 (2008). Put another way,
5 “[c]laim preclusion bars a party in successive litigation from pursuing claims that were
6 raised or could have been raised in a prior action.” Media Rights Techs., Inc. v. Microsoft
7 Corp., 922 F.3d 1014, 1020 (9th Cir. 2019) (quotation marks and internal alterations
8 omitted). Claim preclusion “applies when the earlier suit (1) involved the same ‘claim’ or
9 cause of action as the later suit, (2) reached a final judgment on the merits, and (3)
10 involved identical parties or privies.” Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985,
11 987 (9th Cir. 2005) (internal alterations and quotation marks omitted); see also Howard v.
12 City of Coos Bay, 871 F.3d 1032, 1039 (“Claim preclusion requires ‘(1) an identity of
13 claims, (2) a final judgment on the merits, and (3) privity between parties.’ ”).
Identity of Claims
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The Court employs four criteria to determine whether claims are identical: “(1)
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whether rights or interests established in the prior judgment would be destroyed or
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impaired by prosecution of the second action; (2) whether substantially the same evidence
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is presented in the two actions; (3) whether the two suits involve infringement of the same
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right; and (4) whether the two suits arise out of the same transaction nucleus of facts.”
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Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal quotation
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marks and citation omitted). “The fourth criterion is the most important.” Id.
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After careful consideration of both actions, the Court determines that the
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allegations in this action arise out of the same nucleus of facts and allege infringement of
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the same rights as those alleged in Biter I. In both Biter I and this action, Plaintiff alleges
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that he was exposed to long term arsenic and he was prevented from presenting evidence
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and attending his summary judgment hearing, his expert appointment motion was denied
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and judgment was entered against him. Plaintiff is attempting to relitigate the Biter I
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action with the same evidence for the violation of the same rights, arising from the same
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1 nucleus of facts. Therefore, the Court determines that there is an identity of claims as
2 involved in Biter I. Mpoyo, 430 F.3d at 987. “Under the Federal Full Faith and Credit
3 Statute, 28 U.S.C. § 1738, ‘a federal court must give to a state-court judgment the same
4 preclusive effect as would be given that judgment under the law of the State in which the
5 judgment was rendered.’ ” Takahashi v. Bd. of Trustees of Livingston Union Sch. Dist.,
6 783 F.2d 848, 850 (9th Cir. 1986) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ.,
7 465 U.S. 75, 81 (1984));
8 While this current action potentially alleges a “denial of access to court,” Plaintiff
9 is challenging the same facts that were adjudicated in the underlying action, Biter I: he
10 was not allowed to appear at the summary judgment hearing, his evidence was denied, an
11 expert was not appointed, and judgment was entered against him. Plaintiff’s purported
12 injury arises out of conduct during Biter I. “If two actions involve the same injury to the
13 plaintiff and the same wrong by the defendant, then the same primary right is at stake even
if in the second suit the plaintiff pleads different theories of recovery, seeks different
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forms of relief and/or adds new facts supporting recovery. City of Martinez v. Texaco
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Trading & Transp., Inc., 353 F.3d 758, 762 (9th Cir. 2003)).
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Final Judgment on the Merits
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As described above, there was a judgment on the merits in Biter I and an appeal of
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the judgment. The California Supreme Court denied the petition for review. (Doc. 1, p.
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10 of 67.) The judgment is final.
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Privity Between Parties
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Third, the Court notes that Plaintiff was also the Plaintiff in Biter I and that
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Defendant Biter was also named as a Defendant in Biter I. Since Plaintiff and Defendant
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Biter are identical parties, they are quite obviously in privity. Tahoe-Sierra Pres. Council,
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Inc. v. Tahoe Reg'l Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003). The claims at
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issue in this case were fully adjudicated in Biter I, regardless of the responsible party for
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preventing Plaintiff’s appearance at the hearing.1 Therefore, the Court determines that the
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28 1 As noted above, Plaintiff cannot to state a 'non-frivolous' or 'arguable' underlying claim for
1 third element for the application of claim preclusion is met.
2 Consequently, as all three elements of res judicata are satisfied, Plaintiff's claims
3 against Defendant Biter in this action are barred by res judicata.
4 D. Judicial Immunity
5 It is unclear whether Plaintiff is seeking to bring a claim against Judge Schuett,
6 who presided over Biter I. Absolute judicial immunity is afforded to judges for acts
7 performed by the judge that relate to the judicial process. In re Castillo, 297 F.3d 940, 947
8 (9th Cir. 2002), as amended (Sept. 6, 2002). “This immunity reflects the long-standing
9 ‘general principle of the highest importance to the proper administration of justice that a
10 judicial officer, in exercising the authority vested in him, shall be free to act upon his own
11 convictions, without apprehension of personal consequences to himself.’ ” Olsen v. Idaho
12 State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004). This judicial immunity insulates
13 judges from suits brought under section 1983. Olsen, 363 F.3d at 923. Plaintiff cannot
assert a §1983 action against Judge Schuett.
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IV. Conclusion and Order
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Plaintiff has failed to state a cognizable claim against the named defendant. The
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deficiencies in the complaint that cannot be cured by amendment. Therefore, the Court concludes
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that granting leave to amend would be futile.
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The Court HEREBY ORDERS the Clerk of the Court to randomly assign a district judge
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to this action.
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Based on the above, IT IS HEREBY RECOMMENDED THAT this action be dismissed,
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with prejudice, based on Plaintiff’s failure to state a cognizable claim upon which relief may be
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granted.
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These Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendation, Plaintiff may file written
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violation of First Amendment access to courts, regardless of the responsible party for preventing
28 Plaintiff’s appearance at the hearing.
1 objections with the Court. The document should be captioned “Objections to Magistrate Judge's
2 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the
3 specified time may result in the waiver of the “right to challenge the magistrate's factual findings”
4 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
5 F.2d 1391, 1394 (9th Cir. 1991)).
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7 IT IS SO ORDERED.

8 Dated: August 4, 2021 /s/ Barbara A. McAuliffe _
9 UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10029186. Public record. Not legal advice.