Mitchell v. Bennett

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 KENYATTA QUINN MITCHELL, Case No. 24-cv-02307-BAS-DDL

CDCR #BC-0837,

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ORDER:

Plaintiff,

13 (1) DENYING MOTION TO

v. PROCEED IN FORMA

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PAUPERIS AS BARRED BY 28

15 U.S.C. § 1915(g);

PAUL BENNETT; JANE DOE;

16 ANGEL NUNEZ; BETHANY HOGGE;

(2) DISMISSING CIVIL ACTION

BONNIE DUMANIS; CLAUDIA

17 PURSUANT TO 28 U.S.C. §

PLASCENCIA; PATRICIA T.

1915A(b)(1); AND

18 VALDOVINOS,

19 Defendants. (3) DENYING MOTIONS FOR

PRELIMINARY INJUNCTION

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AND APPOINTMENT OF

21 COUNSEL AS MOOT

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(ECF Nos. 2, 3, 4, 7)

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24 Plaintiff Kenyatta Quinn Mitchell, a prisoner incarcerated at California State Prison,

25 Los Angeles County, in Lancaster, California, and proceeding without counsel, has filed a

26 civil rights complaint pursuant to 42 U.S.C. § 1983. (See ECF No. 1.) Plaintiff has also

27 filed a motion to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a), two

28 identical motions for preliminary injunction, and a motion for appointment of counsel. (See

1 ECF Nos. 2, 3, 4, 7.) Plaintiff claims state prosecutors, his public defender, and several

2 probation and parole officers violated his Sixth, Eighth, and Fourteenth Amendment rights

3 in the months preceding and during 2016 criminal proceedings in San Diego Superior Court

4 Case No. SCN362476. (ECF No. 1 at 2‒6.) Plaintiff seeks $2 million in general and

5 punitive damages, declaratory relief, and a permanent injunction preventing the violation

6 of his rights under California’s Domestic Violence Protection Act. (Id. at 8; see also ECF

7 No. 4 at 1‒3.)

8 For the reasons explained, the Court DENIES Plaintiff’s motion to proceed IFP,

9 DISMISSES his Complaint without leave to amend, and DENIES his motions for

10 preliminary injunctive relief and appointment of counsel as moot.

11 I. IFP MOTION

12 A. Legal Standard

13 All parties instituting any civil action, suit or proceeding in a district court of the

14 United States, except an application for writ of habeas corpus, must pay a filing fee of

15 $350, and those not granted leave to proceed IFP must pay an additional administrative fee

16 of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court

17 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s

18 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28

19 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);

20 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).

21 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”)

22 amended 28 U.S.C. § 1915 to preclude the privilege of proceeding IFP:

23 . . . if [he] has, on 3 or more prior occasions, while incarcerated or detained in

any facility, brought an action or appeal in a court of the United States that

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was dismissed on the grounds that it is frivolous, malicious, or fails to state a

25 claim upon which relief may be granted, unless the prisoner is under imminent

danger of serious physical injury.

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27 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

28 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). Once a prisoner

1 has accumulated three strikes, he is prohibited by § 1915(g) from pursuing any other IFP

2 action in federal court unless he can show he is facing “imminent danger of serious physical

3 injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s

4 exception for IFP complaints which “make[] a plausible allegation that the prisoner faced

5 ‘imminent danger of serious physical injury’ at the time of filing.”).

6 “‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which

7 were dismissed ‘on the ground that [they were] frivolous, malicious, or fail[ed] to state a

8 claim[,]’” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal

9 as [a] denial of the prisoner’s application to file the action without prepayment of the full

10 filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a

11 dismissal to determine whether it counts as a strike, the style of the dismissal or the

12 procedural posture is immaterial. Instead, the central question is whether the dismissal

13 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v.

14 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607,

15 615 (4th Cir. 2013)).

16 B. Plaintiff’s Prior “Strikes”

17 Defendants typically carry the initial burden to produce evidence demonstrating a

18 prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some instances,

19 the district court docket records may be sufficient to show that a prior dismissal satisfies at

20 least one of the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120.

21 Upon review of its own dockets and those of the Ninth Circuit Court of Appeal, the Court

22 finds that Plaintiff, while incarcerated, has had four prior civil actions and appeals

23 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon

24 which relief may be granted. See Fed. R. Evid. 201(b)(2); Tiedemann v. von Blanckensee,

25 72 F.4th 1001, 1007 (9th Cir. 2023) (noting that courts may take notice of proceedings in

26 other courts—state or federal—when those proceedings have a direct relation to matters at

27 issue). They are:

28 (1) Mitchell v. Chula Vista Parole, Case No. 20cv919-MMA-AHG, 2020

1 WL 5106653, at *8 (S.D. Cal. Aug. 31, 2020) (Order dismissing civil action

“based on Plaintiff’s failure to state a claim upon which relief may be granted

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pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1)”) (ECF No.

3 11);1

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(2) Mitchell v. Chula Vista Parole Bd., No. 20-56064, 2021 WL 11505176,

5 at *1 (9th Cir. Aug. 19, 2021) (“[W]e conclude this appeal is frivolous.”);

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(3) Mitchell v. Bennett, No.: 22-cv-1011-BAS-BGS, 2023 WL 4003473, at

7 *3 (S.D. Cal. June 13, 2023) (Order dismissing civil action for failure to

state a claim upon which relief can be granted pursuant to 28 U.S.C.

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§ 1915(e)(2)(B) and § 1915A(b)) (ECF No. 26); and

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(4) Mitchell v. Bennett, No. 23-55577, 2024 WL 3226570, at *1 (9th Cir.

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Mar. 29, 2024) (“[W]e conclude that this appeal is frivolous.”), cert. denied,

11 145 S. Ct. 303 (2024).

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Accordingly, because Plaintiff accumulated four qualifying strikes pursuant to

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§ 1915(g) before he filed this case, he cannot proceed IFP unless he meets the imminent

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danger exception to the three strikes provision of the PLRA.

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C. Imminent Danger of Serious Physical Injury

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In order to qualify for § 1915(g)’s exception, Plaintiff’s pleading must contain a

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“plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the

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time of filing.” Cervantes, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). “Imminent

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danger” requires an allegation that a harm is “ready to take place,” or “hanging

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threateningly over one’s head,” Cervantes, 493 F.3d at 1056, and “cannot be triggered

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solely by complaints of past injury or generalized fears of possible future harm.”

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Hernandez v. Williams, No. 21cv347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal.

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25 1 This counts as a strike under § 1915(g) because Plaintiff’s case was dismissed “as a whole” for

two separate qualifying reasons: 1) Plaintiff’s allegations failed to state a claim upon which § 1983 relief

26 could be granted; and 2) it was clear from the face of his pleading that Plaintiff’s claims were time-barred.

See Hoffman v. Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019); Belanus v. Clark, 796 F.3d 1021, 1024‒25

27 (9th Cir. 2007) (concluding that the dismissal of a time-barred complaint “for failure to state a cause of

action upon which relief could be granted” was properly “assessed as a strike” pursuant to 28 U.S.C.

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1 Apr. 8, 2021) (citing Cervantes, 493 F.3d at 1053). Instead, “the exception functions as a

2 limited safety valve for a prisoner who has exhausted his three strikes but nevertheless

3 faces imminent danger stemming from the violations of law alleged in his complaint.” Ray

4 v. Lara, 31 F.4th 692, 701 (9th Cir. 2022).

5 Plaintiff has exhausted his three strikes, but he does not allege that he faces any

6 imminent or ongoing physical danger stemming from the 2016 criminal proceedings which

7 he alleges were “abusive,” “vindictive,” and “malicious” and are the subject of both his

8 Complaint and his motions for injunctive relief. (See ECF No. 1 at 1, 4, 5; ECF No. 4 at

9 3; ECF No. 4-1 at 3‒5.) At most, Plaintiff alleges that the deprivation of “procedural

10 safeguards” at his trial have caused him emotional distress, see ECF No. 1 at 6, and he has

11 been “irreparab[ly] harmed” as a result of his “wrongful conviction.” (See ECF No. 4 at

12 2; ECF No. 4-1 at 4.) But “imprisonment itself” does not constitute imminent danger under

13 § 1915(g). See Alkebu-Lan v. Hazelwood, No. 21-cv-06063-JST, 2022 WL 19317, at *4

14 (N.D. Cal. Jan. 3, 2022).

15 “The right to proceed in forma pauperis is not an unqualified one.” Jefferson v.

16 United States, 277 F.2d 723, 725 (9th Cir. 1960) (citations omitted). “It is a privilege, rather

17 than a right.” Id. Section 1915(g) “does not prevent all prisoners from accessing the courts;

18 it only precludes prisoners with a history of abusing the legal system from continuing to

19 abuse it while enjoying IFP status.” Rodriguez, 169 F.3d at 1180. Because Plaintiff’s

20 litigation history reflects a pattern of abuse of the judicial process, and he does not plausibly

21 allege to have been in “imminent danger of serious physical injury” at the time he filed his

22 Complaint, the Court DENIES him leave to proceed IFP in this action. See Cervantes, 493

23 F.3d at 1055.

24 II. SCREENING PURSUANT TO 28 U.S.C. § 1915A

25 A. Standard of Review

26 Even if Plaintiff paid the full filing fee or were eligible to proceed IFP, 28 U.S.C. §

27 1915A—also enacted as part of the PLRA—requires the Court to sua sponte dismiss any

28 prisoner complaint, or any portion thereof, that is “frivolous, malicious, or fails to state a

1 claim upon which relief may be granted[,]” or “seeks monetary relief from a defendant who

2 is immune,” and in this case, Plaintiff’s allegations are subject to dismissal on those

3 grounds. 28 U.S.C. § 1915A(b)(1)–(2); Coleman v. Tollefson, 575 U.S. 532, 538‒39

4 (2015). Section 1915A(a) “mandates early review—‘before docketing [] or [] as soon as

5 practicable after docketing’—for all complaints ‘in which a prisoner seeks redress from a

6 governmental entity or officer or employee of a governmental entity.’” Chavez v.

7 Robinson, 817 F.3d 1162, 1168 (9th Cir. 2016). The mandatory screening provisions of §

8 1915A apply to all prisoners, no matter their fee status, who bring suit against a

9 governmental entity, officer, or employee. See, e.g., Resnick v. Hayes, 213 F.3d 443, 446‒

10 47 (9th Cir. 2000).

11 “On review, the court shall . . . dismiss the complaint, or any portion of the

12 complaint,” if it “(1) is frivolous, malicious, or fails to state a claim upon which relief may

13 be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.”

14 Olivas v. Nevada ex rel. Dept. of Corr., 856 F.3d 1281, 1283 (9th Cir. 2017) (citing 28

15 U.S.C. § 1915A(b)). “The standard for dismissal for prisoner claims at screening is the

16 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”

17 Long v. Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024) (citing Watison v. Carter, 668 F.3d

18 1108, 1112 (9th Cir. 2012)). A complaint may also be dismissed as frivolous if it “merely

19 repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d 1103, 1105

20 n.2 (9th Cir. 1995) (citations and internal quotation marks omitted). “The purpose of

21 § 1915A is to ‘ensure that the targets of frivolous or malicious suits need not bear the

22 expense of responding.”’ Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014)

23 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

24 B. Discussion

25 Plaintiff’s Complaint is also subject to sua sponte dismissal pursuant to 28 U.S.C.

26 §1915A(b)(1) and (2) because it is clear from the face of his pleading that his claims are

27 barred by Heck v. Humphrey, 512 U.S. 477 (1994), since he seeks damages arising from

28 an allegedly wrongful conviction from defendants who are immune, and his claims are

1 duplicative of those raised and dismissed in both a prior § 1983 civil rights action and in

2 multiple habeas corpus proceedings filed in this Court pursuant to 28 U.S.C. § 2254.

3 1. Heck Bar & Immunity

4 First, Plaintiff seeks $2 million in damages, declaratory and injunctive relief from

5 probation and parole officers who investigated and proffered testimony as well as the

6 attorneys who both prosecuted and defended him in San Diego County Superior Court Case

7 No. SCN362476. (See ECF No. 1 at 2‒6, 8.) Plaintiff was convicted of robbery in that

8 matter on December 14, 2016. See Mitchell v. Dir. of the California Dep’t of Corr. &

9 Rehab., No. 18cv0697-WQH (BLM), 2018 WL 4680122, at *1–2 (S.D. Cal. Sept. 28,

10 2018), report and recommendation adopted, 2019 WL 157800 (S.D. Cal. Jan. 10, 2019)

11 (“Mitchell HC1”). Specifically, Plaintiff’s Complaint alleges Chula Vista parole officers

12 Bennett and Doe violated his Fourteenth Amendment rights when they “fail[ed] to enforce

13 a required restraining order,” and the remaining Defendants, including his public defender,

14 prosecutors, and two probation officers, violated his due process, Sixth, and Eighth

15 Amendment rights during trial by failing to obtain exculpatory evidence, submitting false

16 investigative reports, and depriving him of “procedural safeguards” as guaranteed by

17 California’s Domestic Violence Protection Act. (See ECF No. 1 at 4‒6.) As a result,

18 Plaintiff contends he was wrongfully deprived of his liberty based on an “abusive,”

19 “vindictive,” and “malicious” prosecution. (See ECF No. 4 at 3; ECF No. 4-1 at 2‒5.)

20 When a state prisoner raises claims that “necessarily imply” the invalidity of his state

21 criminal conviction or sentence, a habeas corpus petition is his “sole federal remedy.” See

22 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck, 512 U.S. at 487. Heck and its

23 progeny reaffirm that “a prisoner in state custody cannot use a § 1983 action to challenge

24 ‘the fact or duration of his confinement.’” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005)

25 (quoting Preiser, 411 U.S. at 489); Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016)

26 (en banc). “Under Heck, a plaintiff’s civil claims challenging government conduct in

27 connection with [his] arrest and prosecution may not proceed if a judgment in [his] favor

28 ‘would necessarily imply the invalidity of [his] conviction or sentence.’” Mayfield v. City

1 of Mesa, __ F.4th __, No. 23-3222, 2025 WL 890507, at *4 (9th Cir. Mar. 24, 2025)

2 (quoting Heck, 512 U.S. at 487); see also Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.

3 1996) (“Heck bars . . . claims that defendants lacked probable cause to arrest . . . and

4 brought unfounded criminal charges.”).

5 For this reason alone, the Court finds Plaintiff’s Complaint, which essentially alleges

6 his current and yet-to-be invalidated conviction and incarceration is the result of a

7 malicious prosecution, fails to state a claim upon which § 1983 relief can be granted and is

8 subject to sua sponte dismissal without leave to amend pursuant to 28 U.S.C.

9 § 1915A(b)(1). See Heck, 512 U.S. at 486–87; see also Guerrero v. Gates, 442 F.3d 697,

10 703 (9th Cir. 2006) (finding that absent prior invalidation, Heck bars § 1983 suits alleging

11 wrongful arrest, malicious prosecution, and conspiracy among police officers to bring false

12 charges); Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1055 (9th Cir.

13 2016) (finding that a § 1983 complaint barred by Heck may be dismissed for failure to state

14 a claim when the pleading as a whole “present[s] an ‘obvious bar to securing relief.’”)

15 (citation omitted). “[T]he PLRA expressly authorize[s] the district court to dismiss [a]

16 complaint [barred by Heck] for failure to state a claim at any time[] even when . . . the legal

17 basis for the dismissal [is raised] o[n] its own accord.” Hebrard v. Nofziger, 90 F.4th 1000,

18 1006 (9th Cir. 2024).

19 If that were not enough, Plaintiff’s Complaint also requires dismissal pursuant to 28

20 U.S.C. § 1915A(b)(1) and (2) to the extent he seeks damages from his public defender,

21 who does not act under color of state law, and prosecutors who are absolutely immune.

22 See Polk County v. Dodson, 454 U.S. 312, 317‒19 (1981) (explaining that a private attorney

23 or a public defender does not act under color of state law within the meaning of § 1983);

24 Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 842–43 (9th Cir. 2016) (explaining that

25 state prosecutors are absolutely immune from § 1983 actions when performing functions

26 “intimately associated with the judicial phase of the criminal process” or “when performing

27 the traditional functions of an advocate.” (first quoting Imbler v. Pachtman, 424 U.S. 409,

28 427 (1976); and then quoting Kalina v. Fletcher, 522 U.S. 118, 131 (1997)).

1 2. Res Judicata

2 Finally, the doctrine of res judicata bars a party from re-litigating claims that were

3 raised or could have been raised in a prior action. Owens v. Kaiser Foundation Health

4 Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). Res judicata precludes a subsequent suit

5 when there is: “(1) an identity of claims, (2) a final judgment on the merits, and (3) privity

6 between the parties.” Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1052 (9th Cir.

7 2005) (quoting Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322

8 F.3d 1064, 1077 (9th Cir. 2003)). Specifically, “a prior judgment in a federal habeas corpus

9 proceeding may have preclusive effect in an action brought under § 1983.” Hawkins v.

10 Risley, 984 F.2d 321, 323 (9th Cir. 1992); see also Silverton v. Dep’t of the Treasury, 644

11 F.2d 1341, 1347 (9th Cir. 1981) (“[W]e hold that because of the nature of a state habeas

12 proceeding, a decision actually rendered should preclude an identical issue from being

13 relitigated in a subsequent §1983 action if the state habeas court afforded a full and fair

14 opportunity for the issue to be heard and determined under federal standards.”). The Court

15 may consider the res judicata effect of a prior proceeding sua sponte. Hawkins, 984 F.2d

16 at 324.

17 Here, the Court finds that even if Plaintiff were entitled to proceed IFP, his suit were

18 not barred by Heck, and defendants were not immune, he may not relitigate the due process,

19 equal protection, ineffective assistance of counsel, or cruel and unusual punishment

20 violations alleged in his Complaint because he has previously raised these same Sixth,

21 Eighth, and Fourteenth Amendment challenges to his conviction in SCN362476 in two

22 prior habeas corpus petitions filed pursuant to 28 U.S.C. § 2254, as well as in a previously-

23 filed civil rights action pursuant to 42 U.S.C. § 1983 naming the same defendants. See

24 Mitchell HC1, 2018 WL 4680122, at *5 (outlining Plaintiff’s asserted due process,

25 effective assistance of counsel, equal protection, and cruel and unusual punishment

26 violations); Mitchell v. CDCR Dir., No. 21-CV-1261 JLS (MDD), 2021 WL 2982067, at

27 *1 (S.D. Cal. July 15, 2021) (Order Summarily Dismissing Successive Petition pursuant to

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1 28 U.S.C. § 2244(b)(3)(A)) (ECF No. 3) (“Mitchell HC2”); and Mitchell v. Bennett, No.

2 22-CV-1011-BAS-BGS, 2023 WL 4003473, at *2 (S.D. Cal. June 13, 2023) (Order

3 Dismissing Fourth Amended Complaint alleging Eighth Amendment violations against

4 Defendants Bennett and Doe and malicious prosecution against all other Defendants for

5 failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1)) (ECF No.

6 26), appeal dismissed, No. 23-55577, 2024 WL 3226570 (9th Cir. Mar. 29, 2024), cert.

7 denied, 145 S. Ct. 303 (2024).3

8 Thus, because the claims raised in this action are the same, both Mitchell HC1 and

9 Mitchell v. Bennett resulted in final judgments on the merits, and there is privity between

10 the parties in both cases, see Headwaters Inc., 399 F.3d at 1052, the Court finds Plaintiff’s

11 claims are also barred by res judicata principles. See Hawkins, 984 F.2d at 325 (holding

12 that prior habeas action precluded subsequent § 1983 suit even though plaintiff sought

13 different relief); Nelson v. Brown, No. 11-CV-2202-GPC (WVG), 2014 WL 1096189, at

14 *8 (S.D. Cal. Mar. 19, 2014) (finding privity between the Warden named as Respondent in

15 § 2254 habeas petition and prison officials named as Defendants in Plaintiff’s subsequent

16 § 1983 suit for purposes of res judicata); Save Bull Trout v. Williams, 51 F.4th 1101, 1109

17 (9th Cir. 2022) (noting that a “[d]ismissal for failure to state a claim is a judgment on the

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2 Plaintiff “acknowledge[d] that this [wa]s not his first federal petition for a writ of habeas corpus

21 challenging his 2016 conviction in San Diego Superior Court, case number SCN362476, . . . [and further]

acknowledge[d] the prior federal petition was denied on the merits.” Mitchell HC2, 2021 WL 2982067,

22 at *1. Plaintiff also “indicate[d] that one or more of the same issues presented . . . were raised in the prior

federal petition.” Id.

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3 See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking

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judicial notice of plaintiff’s court briefs and hearing transcript in order to determine whether issues

25 actually litigated in prior suit barred present action under the doctrine of issue preclusion); Egan v. Teets,

251 F.2d 571 (9th Cir. 1957) (finding that district court in a habeas corpus proceeding properly took

26 judicial notice of prior habeas corpus proceedings in same court involving same state prisoner); Nelson v.

Brown, No. 11-CV-2202-GPC (WVG), 2014 WL 1096189, at *3 (S.D. Cal. Mar. 19, 2014) (taking judicial

27 notice of the “existence and legal effect” of court orders and filings in prior federal habeas corpus

proceedings to determine whether a prisoner’s subsequent § 1983 suit was barred by res judicata).

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1 merits for purposes of claim preclusion”) (citing Stewart v. U.S. Bancorp, 297 F.3d 953,

2 957 (9th Cir. 2002)); Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981);

3 see also Mulligan v. Montana, No. CV-21-00054-M-DLC, 2021 WL 3617854, at *2 (D.

4 Mont. Aug. 16, 2021) (dismissing § 1983 claims sua sponte pursuant to 28 U.S.C.

5 § 1915A(b) as previously raised and dismissed in § 2254 petition).

6 3. Leave to Amend

7 Finally, while the Court generally grants unrepresented litigants leave to amend, it

8 concludes doing so in this case would be futile. See Lopez v Smith, 203 F.3d 1122, 1127

9 (9th Cir. 2000) (en banc); Schmier v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d

10 817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis for

11 dismissal without leave to amend). Leave to amend is not required if it is “absolutely clear

12 that the deficiencies of the complaint could not be cured by amendment.” Rosati v.

13 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (internal citations omitted); see also Bell v.

14 Allison, No. 20-16880, 2022 WL 4077119, at *1 (9th Cir. Sept. 6, 2022) (“Because Bell’s

15 claim is squarely foreclosed by Heck, amendment would be futile.”); Cornejo v. Minglana,

16 No. 23-cv-05383-JSW, 2025 WL 870415, at *4 (N.D. Cal. Mar. 20, 2025) (dismissing pro

17 se prisoner’s complaint for failing to state a claim and denying leave to amend claims

18 barred by res judicata as futile).

19 III. CONCLUSION

20 For all the reasons discussed, the Court:

21 (1) DENIES Plaintiff’s Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g)

22 (ECF No. 2);

23 (2) DISMISSES this civil action based on Plaintiff’s failure to pay the full $405

24 civil filing fee required by 28 U.S.C. § 1914(a), and his failure to state a claim upon which

25 relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1);

26 (3) DENIES Plaintiff’s Motions for Preliminary Injunctive Relief and for

27 Appointment of Counsel (ECF Nos. 3, 4, 7) as moot;

28 (4) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to

1 U.S.C. § 1915(a)(3); and

2 (5) DIRECTS the Clerk of Court to enter a judgment of dismissal and to close

3 || the file.

4 IT IS SO ORDERED.

5 ~

6 || DATED: April 7, 2025 ( Lilia. (Duhark

7 H n. Cynthia Bashant, Chief Judge

United States District Court

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