Petition for Writ of Certiorari — Doug Kisaka, Petitioner v. University of Southern California

Supreme Court briefOct 28, 2024

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Appeal No.JjU-55945

SC Case No.

In The

Supreme Court of the United

States

Doug Kisaka

Petitioner, in Pro Se

USC (The University of Southern California)

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

TABLE OF CONTENTS FOR APPENDIX

Appendices A through (Pages 1-66)

Page 1 of 3

RECEIVED

NOV -6 202*1

OFFICE OF THE CLERK

SUPREME COURT, U.S,.

Appendix

App A

App B

App C

App D

App E

App F

App G

Appendix & Description

9tj Circ Order Denying Rehearing

after full court had been advised

of the petition for rehearing en

banc and no judge has requested

a vote on whether to rehear the

matter en banc.

9th Circ Memorandum Affirming

Dismissal of 5th Action

9th Circ Order deferring decision on

motion for amended Brief

9th Circ Motion to Augment

Record with Appellant’s own

Supplemental Excerpts of Record

5th Act Order denying motion to

reinstate

5th Act Judgment after Dismissal

5th Act Order Accepting Report &

Recommendations & Dismissal of

Action

Page 2 of 3

Date

Page

7-31-2024 2-3

1-24-2024

4-5

10-31-023

7-25-2023

7-9

9-26-2022

10-12

12-16-2021

14-15

App H

App 1

App J

5th Act Magistrate’s Report &

Recommendations

2nd Action Ruling by LA Superior

Court, where Superior Court

Judge dismissed based on issues

than those in the demurrer. & an

unconstitutional theory of law.

2nd Act US Order Granting Remand

after District Court Judge Beverly

O'Connell denied USC’s two

Motions to Dismiss Action with

Prejudice ■

11-15-2021

16-39

8-3-2017 40-44

5-11-2017 45-55

App K

9th Circ Memorandum affirming

dismissal of 1st Act. Also affirming

the 1st Action dismissal was for

failure to prosecute and not a final

judgment.

8-26-2016 56-57

App L

1st Act Dismissal. District court Judge

Beverly O'Connell states dismissal

was for failure to prosecute

1st Act District court Judge Beverly

O'Connell denied USC" s motion

for summary judgment and

vacated hearing.

4-15-2014 58-65

App M

Page 3 of 3

10-31-2013

In The

SUPREME COURT OF THE UNITED

STATES

SC No.

Doug Kisaka,

Petitioner,

-v-

USC (The University of Southern California),

Respondent.

On Petition for Writ of Certiorari to

the Ninth Circuit Court of Appeals

No. 22-55945

Table of Contents

Appendices A through M

Appendix for Petition for Writ of Certiorari

Page 1 of 66

Case: 22-55945, 07/31/2024, ID: 12899760, DktEntry: 35, Page 1 of 2

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JUL 31 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

DOUG KISAKA, a California Resident,

Plaintiff-Appellant,

UNIVERSITY OF SOUTHERN

CALIFORNIA,

No. 22-55945

D.C. No. 2:21-cv-04757-CJC-GJS

Central District of California,

Los Angeles

ORDER

Defendant-Appellee.

Before:

S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

Kisaka’s motion to accept a late filing (Docket Entry No. 32) and motion to

file an oversized brief (Docket Entry Nos. 32 and 34) are granted.

The mandate is recalled for the limited purpose of considering the petition

for panel rehearing and petition for rehearing en banc.

The panel has voted to deny the petition for panel rehearing.

The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. See Fed. R.

App. P. 35.

Kisaka’s petition for panel rehearing and petition for rehearing en banc

(Docket Entry Nos. 30 and 32) are denied.

The mandate will reissue forthwith.

OSA172

Appendix of Petition for Writ of certiorari

Page 2 of 66

Case: 22-55945, 07/31/2024, ID: 12899760, DktEntry: 35, Page 2 of 2

No further filings will be entertained in this closed case.

22-55945

Appendix of Petition for Writ of certiorari

Page 3 of 66

OSA172

(2 of 3)

Case: 22-55945, 01/24/2024, ID: 12851853, DktEntry: 22-1, Page 1 of 2

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUG KISAKA, a California Resident,

Plaintiff-Appellant,

FILED

JAN 24 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 22-55945

D.C. No. 2:21-cv-04757-CJC-GJS

MEMORANDUM

UNIVERSITY OF SOUTHERN

CALIFORNIA,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Submitted January 17, 2024

Before:

S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.

Doug Kisaka appeals pro se from the district court’s order denying his

second post-judgment motion for relief under Federal Rule of Civil Procedure

60(b)(1) in his action alleging various federal claims. We have jurisdiction under

28 U.S.C. § 1291. We review for an abuse of discretion. Sch. Dist. No. 1J,

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

Appendix of Petition for Writ of certiorari

Page 4 of 66

(3 of 3)

Case: 22-55945, 01/24/2024, ID: 12851853, DktEntry: 22-1, Page 2 of 2

Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We

affirm.

The district court did not abuse its discretion by denying Kisaka’s motion for

relief from judgment because Kisaka failed to establish any basis for such relief.

See Fed. R. Civ. P. 60(b)(1) (the court may relieve a party from a final judgment or

order for mistake); United States v. Schimmels (In re Schimmels), 127 F.3d 875,

884 (9th Cir. 1997) (“An involuntary dismissal generally acts as a judgment on the

merits for the purposes of res judicata, regardless of whether the dismissal results

from procedural error or from the court’s considered examination of the plaintiff s

substantive claims.”). Contrary to Kisaka’s contention, this court did not

previously determine that the dismissal of Kisaka’s first action was not a final

judgment on the merits.

We do not consider matters not supported by argument in the opening brief,

or arguments and allegations raised for the first time on appeal. See Padgett v.

Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions are denied.

AFFIRMED.

22-55945

Appendix of Petition for Writ of certiorari

Page 5 of 66

Case 2:21-cv-04757-CJC-GJS Document 52 Filed 09/26/22 Page 1 of 3 Page ID #:424

UNITED STATES DISTRICT COURT

' 14

4 18

CENTRAL DISTRICT OF CALIFORNIA

DOUG KISAKA,

Plaintiff,

Case No. 2:21-cv-04757-CJC (GJS)

ORDER DENYING SECOND

RULE 60(b) MOTION

UNIVERSITY OF SOUTHERN

CALIFORNIA,

Defendant.

On June 9, 2021, Plaintiff filed a civil rights complaint arising out of the same

subject matter as four previous lawsuits brought in this District. Defendant moved

to dismiss this action on the grounds of res judicata, untimeliness, and failure to

state a claim. On November 15, 2021, United States Magistrate Judge Gail J.

Standish issued a Report and Recommendation, in which she recommended that the

motion to dismiss be granted on the basis of res judicata [Dkt. 26, “Report”]. On

December 16, 2021, the Court accepted the Report and Judgment issued dismissing

this case with prejudice [Dkts. 35-36]. Plaintiff did not appeal.

Eight months later, on August 20, 2022, Plaintiff filed a “Rule 60 Motion to

Reinstate” [Dkt. 37 “First Rule 60(b) Motion”]. In the Motion, Plaintiff asserted

that the Court had committed legal error with respect to the Report’s finding that

Ap >endix of Petition for Writ of certiorari

Page 10 of 66

:21-cv-04757-CJC-GJS Document 52 Filed 09/26/22 Page 2 of 3 Page ID #:425

this action was barred by res judicata and purported additional finding that the

statute of limitations bars this case. Plaintiff also claimed that the Court had

“overlooked” an Order issued by the United States Court of Appeal for the Ninth

Circuit in connection with the dismissal of one of his earlier actions, in which the

Ninth Circuit found that it lacked jurisdiction to consider his complaints about

certain interlocutory orders.

On September 2, 2022, the Court denied the First Rule 60(b) Motion [Dkt. 42,

“September 2 Order”]. The September 2 Order explained why the First Rule 60(b)

Motion must be construed as one brought under Rule 60(b)(1) and denied it for the

following reasons:

Plaintiff has not shown that the dismissal of this action

on res judicata grounds was the result of mistake or

inadvertence, much less surprise or excusable neglect.

Indeed, he has not shown any error by the Court and,

instead, demonstrates only his own misunderstanding of

the nature of the Court’s dismissal and of the applicable

law. Contrary to Plaintiffs arguments, the Court did not

dismiss this case on the basis of the statute of limitations.

[See Report at 2 n.l, expressly declining to reach the

statute of limitations issue.] Plaintiff s lengthy

arguments regarding the alleged timeliness of this action

are irrelevant and do not demonstrate any basis for Rule

60(b)(1) relief. Plaintiffs arguments about why he

believes this case is not barred by res judicata are simply

a re-hash of those he previously made in this case and

which were considered fully in connection with the

Report and this Court’s Order of dismissal. Plaintiff s

assertion that the Court overlooked the nature of the

Ninth Circuit’s Order in one of his earlier appeals is of no

moment. The Court considered the record in full,

including appellate proceedings, and the Ninth Circuit’s

Order he cites has no effect on the res judicata question.

At the conclusion of the September 2 Order, the Court expressly cautioned Plaintiff

that “[n]o further motions or requests for reconsideration or other motions or

requests will be entertained in this closed case.”

Notwithstanding that caution, Plaintiff has filed a second Rule 60(b) “motion

of Petition for Writ of certiorari

Page 11 of 66

Case ?:21-cv-04757-CJC-GJS Document 52 Filed 09/26/22 Page 3 of 3 PagelD#:426

to reinstate” [Dkt. 48], along with a supporting declaration [Dkt. 50] (collectively,

the “Second Rule 60(b)(1) Motion”). While the Second Rule 60(b) Motion has

added some additional introductory verbiage and attempts to explain Plaintiff s

behavior in connection with one of his earlier lawsuits, this second motion is

effectively duplicative of the First Rule 60(b) Motion. The Court already rejected

Plaintiffs arguments through its September 2 Order denying the First Rule 60(b)

Motion, and nothing in the Second Rule 60(b) Motion causes the Court to change its

mind. Plaintiff has not shown any basis for questioning the Judgment in this case or

for setting aside the Court’s Order of dismissal. Moreover, Plaintiff has violated the

September 2 Order by filing this successive and duplicative motion.

Accordingly, IT IS ORDERED that the Second Rule 60(b) Motion is

DENIED.

The Court reiterates that no further Rule 60(b) motions or requests for

reconsideration or other motions or requests of this nature will be entertained in this

closed case. Any such further attempted filings by Plaintiff in disregard of this

Court’s Orders may subject him to sanctions.

IT IS SO ORDERED.

DATED: September 26,2022

CORMAC J. CARNEY /

UNITED STATES DISTRICT JUDGE

Presented by:

GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

lix of Petition for Writ of certiorari

Page 12 of 66

:21-cv-04757-CJC-GJS Document 36 Filed 12/16/21 Page 1 of 1 Page 104:32'

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DOUG KISAKA,

Plaintiff

Case No. 2:21-cv-04757-CJC (GJS)

JUDGMENT

UNIVERSITY OF SOUTHERN

CALIFORNIA,

Defendant.

Pursuant to the Court’s Order Accepting Findings and Recommendations of

United States Magistrate Judge,

IT IS ADJUDGED THAT this action is dismissed with prejudice.

DATE: December 16,2021

CORMAC J<CARNEY/

UNITED STATES DISTRICT JUDGE

lix of Petition for Writ of certiorari

App F

Page 13 of 66

Cas J 2:21-cv-04757-CJC-GJS

Document 35

#:327

Filed 12/16/21

Page 1 of 2 Page ID

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

DOUG KI SAKA,

Plaintiff

Case No. 2:21-cv-04757-CJC (GJS)

UNIVERSITY OF SOUTHERN

CALIFORNIA,

ORDER ACCEPTING FINDINGS

AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE

JUDGE

Defendant.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all other

documents, pleadings, and motions filed and lodged in this action, and the Report

and Recommendation of United States Magistrate Judge [Dkt. 26, “Report”].

Objections to the Report were due by no later than December 6, 2021 [see Dkt. 25],

but no Objections have been filed. The Court, however, has considered Plaintiff s

motion filed on December 8, 2021 [Dkt. 27] to the extent that it addressed and/or

objected to any matter set forth in the Report. Pursuant to 28 U.S.C. § 636(b)(1)(C)

and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those

portions of the Report to which Plaintiff has stated any objection through the above

noted motion.

Ap )endix of Petition for Writ of certiorari

Page 14 of 66

Cas ; 2'21-cv-04757-CJC-GJS

Document 35

#:328

Filed 12/16/21

Page 2 of 2 Page ID

Having completed its review, the Court accepts the findings and

recommendations set forth in the Report. Accordingly, IT IS ORDERED that:

Defendant’s motion to dismiss [Dkt. 10] is GRANTED; the Complaint is dismissed

without leave to amend; and Judgment shall be entered dismissing this action with

prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATE: December 16, 2021

CORMAC j/CARNEY /

UNITED STATES DISTRICT JUDGE

Ap >endix of Petition for Writ of certiorari

Page 15 of 66

Case :21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 1 of 24 Page ID #:260

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Plaintiff

Case No. 2:21-cv-04757-CJC (GJS)

DOUG KI S AKA,

UNIVERSITY OF SOUTHERN

CALIFORNIA,

REPORT AND

RECOMMENDATION OF

UNITED STATES MAGISTRATE

JUDGE

Defendant.

This Report and Recommendation is submitted to United States District Judge

Cormac J. Carney, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the

United States District Court for the Central District of California.

BACKGROUND

On June 9, 2021 Plaintiff filed a civil complaint [Dkt. 1, “Complaint”]. The

sole Defendant is the University of Southern California (“USC”). On August 30,

3021, USC filed a motion to dismiss this action pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure [Dkt. 10, “Motion”]. In the Motion, USC argues

that the Complaint is untimely, is barred by the res judicata doctrine, and some of

the claims pleaded fail to set forth adequate allegations to state a claim upon which

relief can be granted.

Ap lendix of Petition for Writ of certiorari

Page 16 of 66

Case :21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 2 of 24 PagelD#:261

On August 31, 2021, the Court issued an Order directing briefing on the

Motion [Dkt. 11, August 31 Order”]. The August 31 Order directed Plaintiff to file

his Opposition to the Motion by no later than September 24, 2021. The Order also

cautioned Plaintiff that a failure to respond to the Motion could be deemed to

constitute consent to a grant of the Motion pursuant to Local Civil Rule 7-12.

The deadline for Plaintiff to oppose the Motion passed and Plaintiff neither

filed his Opposition nor requested an extension of time to do so, notwithstanding

that he had filed other motions and requests in this case during the relevant period

[see Dkts. 12, 14]. On October 8, 2021, however, Plaintiff filed an untimely request

for an extension of time [Dkt. 20], which the Court granted [Dkt. 22]. On October

22, 2021, Plaintiff filed his Opposition to the Motion [Dkt. 23], and on November 1,

2021, Defendant filed its Reply [Dkt. 24],

The Motion, thus, is under submission. Having reviewed the filings in this

case and the record, the Court concludes that the Motion should be granted, because

it is obvious that this action is barred by the doctrine of res judicata.1

BACKGROUND

As explained below, this action is Plaintiffs fifth federal lawsuit stemming

from a stay away order that USC issued against him in 2010, and its assertedly

harmful effects, and other allegedly wrongful actions taken by USC and its officers

and employees. The Complaint’s allegations must be considered in the light of

Petitioner’s prior similar and/or identical actions.

In March 2011, Plaintiff filed a complaint in this District in Case No. 2:11-cv-

01942-BRO (MANx) (the “First Action”).2 The First Action complaint [Dkt. 3]

In light of the Court’s finding that res judicata bars this case in full, the Court need not, and

does not, address the alternative arguments for dismissal set forth in the Motion.

Pursuant to Rule 201 ofthe Federal Rules of Evidence, the Court takes judicial notice of its

own dockets, records, and files in connection with Plaintiff s earlier actions filed in this District,

of Petition for Writ of certiorari

Page 17 of 66

Case :21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 3 of 24 PagelD#:262

named USC and five identified individuals as Defendants, included Doe defendants,

and pleaded 14 federal and state law claims. Plaintiffs claims stemmed from

alleged harassment and other wrongful conduct by USC officers and employees

based on his race, which included the early 2010 issuance of a stay away order, a

trespassing arrest, interference with his financial aid, and the termination of his

graduate studies. On December 20, 2012, May 2, 2013, and October 11, 2013,

Plaintiff filed essentially the same motion seeking leave to amend the First Action

complaint to name four additional Defendants in place of the Doe defendants and to

add an additional claim. All three motions were denied (for procedural and other

reasons), and trial was set for June 10, 2014. [Dkts. 54, 71, 88, 112, 124]. In the

meantime, various other motions were filed in the First Action, including many

related to Plaintiffs failure to comply with discovery and court orders. On April 14,

2014, former United States District Judge Beverly O’Connell dismissed the First

14’

Action, pursuant to Rules 37(b) and 41(b) of the Federal Rules of Civil Procedure,

due to Plaintiffs ongoing and repeated failure to comply with court orders and

discovery. [Dkt. 159, the “First Action Dismissal Order.”3] Plaintiff appealed the

dismissal of the First Action (No. 14-55649), and on August 26, 2016, the United

States Court of Appeals for the Ninth Circuit affirmed the judgment. [Dkts. 174-

175.]

In February 2017, Plaintiff filed a lawsuit in the Los Angeles Superior Court

(Case No. BC650048) (the “Second Action”). On March 3, 2017, the defendants

removed the Second Action to this District, and it was assigned Case No. 2:17-cv-

as well as those of the United States Court of Appeals for the Ninth Circuit available through the

PACER system and of the California state courts available through their electronic docketing

systems. See Lee v. City ofLos Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (a court is allowed to

consider extrinsic evidence without converting a motion to dismiss to a motion for summary

judgment when the evidence is judicially noticeable as a matter of public record).

Docket No. 159 is the redacted version of the First Action Dismissal Order. Docket 160

contains the unredacted version of that Order, which has been filed under seal.

of Petition for Writ of certiorari

Page 18 of 66

Case ?:21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 4 of 24 PagelD#:263

01746-BRO (MRWx). The Second Action complaint again sued USC and various

of its officers and employees, again raised various federal and state law claims, and

again stemmed from the same 2010 stay away order issued by USC and the same

other assertedly wrongful conduct by USC officers and employees that had been

alleged in the First Action complaint. [See Dkt. 1.] Defendants moved to dismiss

the Second Action complaint on the grounds that it was untimely, barred by res

judicata, and failed to state a claim upon which relief could be granted. [Dkt. 12.]

In response, Plaintiff amended the Second Action complaint to remove his federal

claims and moved to remand the case. [Dkts. 13-14.] District Judge O’Connell then

denied the motion to dismiss as moot given the filing of the amended complaint.

[Dkt. 15.] Defendants filed a motion to dismiss the amended complaint, again

raising the same three grounds as before. [Dkt. 17.] On May 11, 2017, District

Judge O’Connell remanded the Second Action to state court. [Dkt. 18.] In her May

11, 2017 Order, she declined to exercise supplemental jurisdiction over the case,

which by then consisted solely of state law claims, and she did not consider any of

the arguments raised in the second motion to dismiss or in Plaintiffs opposition

thereto, including whether the Second Action was barred by res judicata. [Id.}

Once the Second Action was back in the Los Angeles Superior Court, the

defendants filed a demurrer based on res judicata and statute of limitations grounds.

The demurrer was sustained on August 9, 2017, and judgment entered in the Second

Action on August 24, 2017, dismissing the Second Action with prejudice. In

particular, the Los Angeles County Superior Court concluded that the First Action

Dismissal Order was a judgment on the merits under California law and, thus, had a

res judicata effect. Plaintiff appealed (No. B284559), and on December 21, 2018,

the California Court of Appeal affirmed, finding that the Second Action was barred

in full by res judicata due to the First Action Dismissal Order.

On April 22, 2020, Plaintiff filed his third lawsuit based on the events alleged

in the First and Second Actions, in Case No. 2:20-cv-03680-CJC (GJSx) (the “Third

Ap )endix of Petition for Writ of certiorari

Page 19 of 66

Case :>:21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 5 of 24 PagelD#:264

Action”). The Third Action complaint was the same pleading as the original Second

Action complaint in all salient respects, albeit with the addition of a few extra

claims based on the same subject-matter at issue in the First and Second Actions.

On April 29, 2020, District Judge Carney denied Plaintiffs application for

leave to proceed in forma pauperis and dismissed the Third Action [Dkt. 6, the

“April 29 Order”]. The April 29 Order found that the Third Action complaint was:

substantially similar to the complaint filed in the First Action; and essentially

identical to the original Second Action complaint, with the exception of a few added

claims based on the same facts as before as well as new barebones and conclusory

allegations of “continuing violation” and “current, permanent violations.” As to the

latter, the April 29 Order concluded that Plaintiff had added these allegations in an

obvious (and unsuccessful) attempt to overcome the claim preclusion and statute of

limitation problems he knew he faced. As the April 29 Order noted, the last factual

event alleged to have occurred was Plaintiffs stroke and accident in August 2012 —

over seven and a half years before the' Third Action commenced. The April 29

Order found that the Third Action Complaint was untimely under all possibly

17-

applicable statutes of limitations and explained why, including explaining why

Plaintiffs tolling allegations were ineffective. In addition, the April 29 Order found

that the Third Action was barred by res judicata, because: it arose out of the same

transactional nucleus of facts and involved the same parties and the same claims as

had been pleaded (or could have been pleaded) as in the First Action; and the First

Action Dismissal Order constituted an adjudication on the merits for res judicata

purposes. Further, the April 29 Order found that a number of the claims alleged in

the Third Action complaint plainly failed on their faces and no amendment could

cure them and explained why.

Plaintiff did not appeal the April 29 Order. Instead, nine days after it issued

and the Third Action was dismissed, he filed his fourth action in this District

stemming from the 2010 USC stay away order and his previously-made allegations

Ap :>endix of Petition for Writ of certiorari

Page 20 of 66

Case :21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 6 of 24 PagelD#:265

of wrongful conduct by USC and its officers and employees, in Case No. 2:20-cv-

04178-CJC (GJSx) (the “Fourth Action”). The Fourth Action complaint dropped

the numerous individuals who were defendants in the First, Second, and Third

Actions and, as in this action, kept only USC as a defendant. As with the

complaints in the First, Second, and Third Actions, the Fourth Action complaint

asserted federal and state claims premised on: the same allegedly wrongful conduct

of USC and its officers and employees alleged in the three prior cases; and the 2010

stay away order and the effects it allegedly has had on Plaintiff, including the 2012

stroke mentioned in his earlier actions and a related injury he suffered days

afterward.

On May 13, 2020, District Judge Carney denied Plaintiff’s application for

leave to proceed in forma pauperis and dismissed the Fourth Action [Dkt. 8, the

“May 13 Order”]. The May 13 Order concluded that the Fourth Action complaint

was an unsuccessful attempt to plead around the earlier-identified fundamental

defects and bars to Plaintiff’s repeated efforts to litigate the validity of the 2010 stay

away order and the events he alleged had preceded and succeeded it. The May 13

Order also concluded that Plaintiff’s attempts to plead around the statute of

limitations bar - by dropping allegations related to events that preceded March 26,

2010, and by alleging that he continues to suffer consequences as a result of the

2010 stay away order and the events related to it - did not override the res judicata

and untimeliness bars to his Fourth Action.

Plaintiff appealed the May 13 Order (No. 20-55559). On February 23, 2021,

the Ninth Circuit dismissed the appeal based on its finding that the “appeal is

frivolous.” On May 26, 2021, the Ninth Circuit denied Plaintiffs motion for

reconsideration, and the mandate issued on June 3, 2021.

Six days later, Plaintiff commenced this action - his fifth - resting on the

same subject-matter that served as the basis for the First, Second, Third, and Fourth

Actions.

of Petition for Writ of certiorari

Page 21 of 66

Case :21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 7 of 24 PagelD#:266

THE COMPLAINT ALLEGATIONS

The instant Complaint is almost identical to the Fourth Action complaint that

both this Court and the Ninth Circuit have determined was barred by untimeliness

and res judicata. Pages 1-10 of both pleadings are identical. At page 11 of the

instant Complaint, Plaintiff re-orders what were the allegations of 33-40 of the

Fourth Action complaint (now presented

then immediately sets forth at

allegations made in the Fourth Action complaint (at

by the present Complaint’s “Requisites for Relief’ section and First through

Sixteenth Causes of Action of the Complaint, which are identical to the same

allegations and causes of action as pleaded in the Fourth Action complaint. The

prayers for relief in both the Fourth Action complaint and the instant Complaint also

are identical. Apart from the above re-ordering of allegations, the only difference

between the Fourth Action complaint and the instant Complaint is that the latter

alleges an additional claim, i.e., the Seventeenth Cause of Action labeled

“Conspiracy,” with consists of a single conclusory statement that USC conspired to

harm Plaintiff.

38-46, with

33-37 left blank). He

47-51 of the instant Complaint the same tolling

41-45).4 These are followed

In short, with the exception of a new one sentence “conspiracy” claim tacked

on to the end of the instant Complaint, Plaintiff has instituted an action that is

identical to the Fourth Action and that is functionally identical to the three actions

that preceded that fourth case. For the fifth time, Plaintiff complains about the 2010

stay away order issued by USC and its alleged harmful consequences (including a

In the May 13 Order, the Court found that these tolling allegations - in which Plaintiff

claimed that his limitations period was tolled because he purportedly had pursued an alternative

remedy in a different forum - were specious, reasoning: “Labelling his prior lawsuits brought in

this District stemming from the stay away order and raising many of the same claims alleged once

again, and his duplicative case brought in the state court that was found to be barred by res

judicata, to be the pursuit of‘alternative remedies’ in ‘different’ fora is so frivolous that it

implicates Fed. R. Civ. P., 11.” Undeterred - including by the Ninth Circuit’s conclusion of

frivolity - Plaintiff repeats those same specious allegations in his present Complaint.

of Petition for Writ of certiorari

Page 22 of 66

Case ’:21-cv-04757-CJC-GJS Document 26 Filed 11/15/21 Page 8 of 24 PagelD#:267

stroke he suffered in 2012, and a related injury incurred days later), as well as

allegedly wrongful and racially-motivated conduct by USC and its officers and

employees that took place around that same time. Plaintiff raises here the same

federal and state law claims that he has raised in the four prior iterations of this

lawsuit, which include claims based on Title VI of the Civil Rights Act, 42 U.S.C.

§§ 1981, 1985 and 1986, violations of the California Constitution and California

statutes, and various torts. There is nothing new about this case - it is the very

same lawsuit Plaintiff had been pursuing since 2011, other than that the individual

defendants have fallen by the way side and Plaintiff has omitted allegations

pertaining to pre-March 26, 2010 events.

STANDARDS OF REVIEW

Defendant USC seeks dismissal of this action pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. To survive a Rule 12(b)(6) motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, ‘to state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Review under

Rule 12(b)(6) is generally limited to the contents of a complaint. Sprewell v. Golden

State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). However, courts may “consider

certain materials - documents attached to the complaint, documents incorporated by

reference in the complaint, or matters of judicial notice - without converting the

motion to dismiss into a motion for summary judgment.” United States v. Ritchie,

342 F.3d 903, 908 (9th Cir. 2003).

“ [Affirmative defenses may not be raised by motion to dismiss” unless “the

defense raises no disputed issues of fact.” Scott v. Kuhlman, 746 F.2d 1377, 1378

(9th Cir. 1984) (per curiam) (affirming the district court’s dismissal of a complaint

when “[t]he defendants raised res judicata in their motion to dismiss under Rule

12(b)(6)”); see also Goldberg v. Cameron, 694 Fed. App’x 564, 565-66 (9th Cir.

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2017) (finding no error in the grant of defendant’s Rule 12(b)(6) motion to dismiss

brought on the ground of res judicata); Bayone v. Baca, 130 F. App’x 869, 872 (9th

Cir. 2005) (“We have held that the affirmative defense of res judicata may be raised

in a motion to dismiss under Rule 12(b)(6),” citing Scott, supra}. Thus, for

example, dismissal can be ordered based on res judicata when the elements are

established by the text of the complaint and judicially-noticeable facts. See, e.g.,

Headwaters Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1054 (9th Cir. 2005) (“As a

general matter, a court may, sua sponte, dismiss a case on preclusion grounds where

the records of that court show that a previous action covering the same subject

matter and parties had been dismissed.”) (internal quotation marks and citation

omitted); see also Scott, 746 F.2d at 1378 (a Rule 12(b)(6) dismissal can be granted

if the court is able to discern the relevant facts by way of judicial notice of the

earlier court proceeding).

If a complaint is to be dismissed, “(u]nder Ninth Circuit case law, district

courts are only required to grant leave to amend if a complaint can possibly be

saved. Courts are not required to grant leave to amend if a complaint lacks merit

entirely.” Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000); see Rosati v.

Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss

a pro se complaint without leave to amend unless ‘it is absolutely clear that the

deficiencies of the complaint could not be cured by amendment.’” (internal citations

and quotation omitted)). Leave to amend is not appropriate, even given the liberal

pleading standard for pro se litigants, when “the pleading ‘could not possibly be

cured by the allegation of other facts.’” Ramirez v. Galaza, 334 F.3d 850, 861 (9th

Cir. 2003) (internal quotation omitted).

DISCUSSION

As noted earlier, the Motion seeks dismissal on the ground of untimeliness,

among other reasons. The instant Complaint is simply a re-do of the earlier-filed

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Fourth Action complaint. This Court found that the Fourth Action complaint was

untimely, and the Ninth Circuit determined that Plaintiffs appeal of that issue was

“frivolous.” As a result, it seems obvious that this later-filed duplicative Complaint

is untimely as well. The Court, however, need not assess Plaintiffs various tolling

allegations and timeliness arguments and actually resolve the timeliness issue,

because the conclusion that this repetitive case is barred by res judicata is

inescapable.

“This Court has long recognized that ‘[p]ublic policy dictates that there be an

end of litigation; that those who have contested an issue shall be bound by the result

of the contest, and that matters once tried shall be considered forever settled as

between the parties.’” Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401

(1981) (citation omitted). The res judicata doctrine provides that a final judgment

on the merits bars further claims by the parties or their privies based on the same

cause of action. See, e.g., Tahoe-Sierra Pres. Council v. Tahoe Reg’I. Planning

Agency, 322 F.3d 1064, 1077 (9th Cir. 2003); see also Robertson v. Isomedix, Inc.,

28 F.3d 965, 969 (9th Cir. 1994) (the “doctrine of res judicata bars a party from

bringing a claim if a court of competent jurisdiction has rendered a final judgment

on the merits of the claim in a previous action involving the same parties or their

privies”). “Res judicata bars relitigation of all grounds of recovery that were

asserted, or could have been asserted, in a previous action between the parties,

where the previous action was resolved on the merits.” United States ex rel. Barajas

v. Northrop Corp., 147 F.3d 905, 909 (9th Cir. 1998). “It is immaterial whether the

claims asserted subsequent to the judgment were actually pursued in the action that

led to the judgment; rather, the relevant inquiry is whether they could have been

brought.” Id.; see also Robertson, 28 F.3d at 969 (“[r]es judicata bars all grounds

for recovery that could have been asserted, whether they were or not, in a prior suit

between the same parties on the same cause of action”). The doctrine “is meant to

protect parties against being harassed by repetitive actions.” Tahoe-Sierra Pres.

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Council, 322 F.3d at 1077 (internal quotation marks omitted). The doctrine applies

even if the prior judgment assertedly “may have been wrong or rested on a legal

principle subsequently overruled in another case.” Federated. Dept. Store, 452 U.S.

at 398.

For res judicata to apply, there must be “1) an identity of claims, 2) a final

judgment on the merits, and 3) privity between parties.” Headwaters, Inc, 399 F.3d

at 1052. With respect to the privity ofparties requirement, USC was named as a

defendant in the First, Second, Third, and Fourth Actions, as well as in this case, and

Plaintiff has been the sole plaintiff in all five cases. The privity requirement,

therefore, is met easily.

With respect to the identity of claims requirement, all five cases revolve

around the same transactional nucleus of alleged facts, namely, that USC’s officers

13-

and employees engaged in a variety of wrongful actions and behaviors for racial

reasons, that USC relatedly issued a stay away order against Plaintiff in 2010, and

this order has caused him harm since its issuance. Indeed, each of Plaintiff s five

actions have rested on essentially identical complaints and allegations, with only

nominal differences. Any claims added to succeeding lawsuits plainly are claims

that “could have been” asserted in the original First Action, such as Plaintiffs one-

sentence “conspiracy” claim added in this case. Plaintiff has filed the same lawsuit

five times now and it already has been found to be barred by res judicata on three

prior occasions. This time is no different. The identity of claims requirements is

readily satisfied.

23 <

With respect to the finaljudgment on the merits requirement, the First Action

was dismissed pursuant to Rule 37(b) and Rule 41(b). Rule 37 provides that

dismissal may be ordered, as a sanction for failure to comply with discovery

obligations and related court orders. Rule 41(b) provides that a case may be

involuntarily dismissed if a plaintiff fails to prosecute, to comply with the Federal

Rules of Civil Procedure, or to comply with a court order. There is no question that

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the First Action Dismissal Order is a final judgment, as it was never appealed.

For purposes of the res judicata final judgment on the merits requirement,

“[t]he phrase ‘final judgment on the merits’ is often used interchangeably with

‘dismissal with prejudice.’” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.

2002); see also In re Marino, 181 F.3d 1142, 1144 (9th Cir. 1999) (a dismissal with

prejudice, whatever its basis, is “on the merits” and has res judicata effect). The

First Action Dismissal Order did not specifically state that the dismissal of the case

under Rules 37(d) and 41(b) was “with” prejudice or “without” prejudice. The

failure to so specify, however, does not mean that the dismissal was not a final

judgment on the merits for res judicata purposes. Stewart, 297 F.3d at 956. As the

Ninth Circuit has explained, Rule 41(b) explicitly provides that “[u]nless the

dismissal order states otherwise, a dismissal under this subdivision (b) and any

dismissal not under this rule - except one for lack of jurisdiction, improper venue, or

failure to join a party under Rule 19 - operates as an adjudication on the merits.” If

none of those three exceptions are the basis for dismissal, then the order dismissing

the action constitutes an adjudication on the merits regardless of the failure to

specify whether it was with or without prejudice. Id.; see also Koshak v. County of

Orange, 637 Fed. App’x 323, 324 (9th Cir. 2016) (“The failure to state whether the

dismissal was with prejudice or not is immaterial where the terms ‘adjudication on

the merits’ and ‘with prejudice’ are interchangeable.”) (citing Stewart).

An involuntary dismissal under Rule 41 (b) for the reasons noted in the Rule

(failure to prosecutor or to comply with a court order or rule) or under Rule 37(d)

has a res judicata effect. See Costello v. United States, 365 U.S. 265, 286 (1961)

(under the above language of Rule 41(b), “it is therefore logical that a dismissal on

one of these grounds should, unless the Court specified otherwise, bar a subsequent

action”); United States v. $149,345 U.S. Currency, 747 F.2d 1278, 1280 (9th Cir.

1984) (dismissal of a first action as a discovery sanction constituted a judgment on

the merits under Rule 41(b) and had a res judicata effect as to a second action). It is

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well-established in the Ninth Circuit that an involuntary dismissal under Rule 41(b)

and/or Rule 37 operates as an adjudication on the merits for purposes of the res

judicata doctrine. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 714

(9th Cir. 2001); see also United States v. Schimmels (In re Schimmels'), 127 F.3d

875, 884 (9th Cir. 1997) (“An involuntary dismissal generally acts as a judgment on

the merits for the purposes of res judicata, regardless of whether the dismissal

results from procedural error or from the court's considered examination of the

plaintiffs substantive claims.”); Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d

585, 592 (9th Cir. 1983) (“By its terms, Rule 37 authorizes the sanction of dismissal,

and a punitive dismissal is equivalent to an adjudication on the merits.”); P. Y.M. T. v.

City ofFresno, No. l:16-cv-0817-AWI, 2017 WL 2868443, *3 (E.D. Cal. July 5,

2017) (involuntary dismissals, including under Rules 37 and 41(b), are adjudications

on the merits for res judicata purposes); Syufy Enterprises v. American Multicinema,

Inc., 575 F. Supp. 431, 435 (N.D. Cal. 1983) (“a dismissal under Rule 37 operates as

an adjudication on the merits”).

Because District Judge O’Connell’s First Action Dismissal Order did not “state

otherwise,” under longstanding Ninth Circuit precedent, the First Action Dismissal

Order - as an involuntary dismissal - operates as an adjudication on the merits of

Plaintiffs claims and constitutes a dismissal of them with prejudice. See Stewart,

297 F.3d at 956 (when the first dismissal did not state that whether it was with or

without prejudice, under Rule 41(b)’s language, it constituted a with prejudice

adjudication on the merits); In re Jee, 799 F.2d 532, 534 n.2 (9th Cir. 1986) (if an

involuntary dismissal does not specify that it is with or without prejudice, then under

Rule 41(b), it “is considered to be with prejudice”); Huey v. Teledyne, Inc., 608 F.2d

1234, 1237 (9th Cir. 1979) (when a dismissal for lack of prosecution is made

without any qualifying language, “Rule 41(b) specifies that such a dismissal, unless

otherwise specified, operates as an adjudication on the merits, and thus is one with

prejudice”); Moon v. Dulles, 237 F.2d 241, 242 (9th Cir. 1956) (when the first

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dismissal order did not specify if it was with or without prejudice, under Rule 41(b),

it was an adjudication on the merits and had res judicata effect); see also Nutrition

Distribution, LLC v. IronMag Labs, LLC, 723 Fed. App’x 397, 398 (9th Cir. 2018)

(although the dismissal of the prior action did not say whether it was with prejudice,

under Rule 41(b), “we interpret the dismissal as an adjudication on the merits that

was therefore with prejudice”).5

Accordingly, the governing precedent makes clear that the First Action

Dismissal Order was an adjudication on the merits for purposes of the res judicata

doctrine. The Court already has so determined in the April 29 Order in the Third

Action and the May 13 Order in the Fourth Action, in both instances finding that the

First Action Dismissal Order constitutes a res judicata bar to Plaintiff s continued

efforts to raise the claims that are now asserted again through the instant Complaint.

The Ninth Circuit agreed, finding Plaintiffs appeal of the May 13 Order in the

Fourth Action to be “frivolous.” Thus, the final judgment on the merits requirement

is met here.

In his Opposition, Plaintiff does not contend that the identity of claims and

privity of parties res judicata elements are met, but he vigorously disputes that the

final judgment on the merits requirement is satisfied notwithstanding the foregoing

governing law and the Court’s prior findings. Plaintiff spends some time arguing

that, following the remand of the Second Action, the state trial and appellate courts

erred by according res judicata effect to the First Action Dismissal Order. Whether

or not the state courts erred is of no moment in this case, because the issue before

Under this rule, District Courts in the Ninth Circuit routinely find that involuntary

dismissals for failure to prosecute and/or failure to comply with court rules and orders to have an

adjudicated on the merits/res judicata effect regardless of the dismissal order’s failure to specify

whether the dismissal was with or without prejudice. See, e.g., Govindasamy v. Selvasekaran, No

CV 17-0235-MWF (SSx), 2017 WL 8180628, *1 (C.D. Cal. July 24, 2017); Coleman v. Bankof

America Corp., No. CV 130-7157-MWF (MANx), 2013 WL 12115773, *2-3 (C.D. Cal. Nov. 21,

2013); Quinto v. J.P.Morgan Chase Bank, No. 11-cv-02920-LHK, 2011 WL 6002599, *6 (N.D.

Cal.Nov. 30, 2011).

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the Court is whether the First Action Dismissal Order was an adjudication on the

merits for res judicata purposes in this federal action. What happened in the Second

Action has nothing to do with the res judicata issue that requires resolution here, and

in any event, this federal court is not an appropriate forum for Plaintiffs years-after-

the-fact attempt to challenge a final state court judgment. There is no need to

consider Plaintiffs arguments and assertions regarding the state courts’ resolution of

the Second Action any further.

Turning to Plaintiffs principal argument, Plaintiff contends that, for res

judicata purposes, a dismissal for failure to prosecute is not an adjudication on the

merits as a matter of law and that the First Action Dismissal Order was made on a

“without prejudice” basis. Plaintiff repeatedly accuses USC of lying and deception

in arguing that the First Action Dismissal Order constitutes an adjudication on the

merits, and he asserts that due to USC’s “falsehood,” the Motion must be denied

summarily, because it purportedly rests on an “unequivocally false” premise. [See

Opposition at 2-4.] Plaintiff represents affirmatively that former District Judge

O’Connell did not intend for her First Action Dismissal Order to constitute a with

prejudice dismissal and an adjudication on the merits for res judicata purposes,

because: (1) she stated that she would have ruled otherwise had Plaintiff provided

additional medical records, but Plaintiff should be excused from his failure to do so;

and (2) she denied the Defendants’ motion to dismiss the Second Action and

expressly stated in her ruling that she rejected the defense’s res judicata argument.

[See id. at 3, 9, 12-13]

The first obvious problem with Plaintiffs arguments is that there is no

falsehood set forth in the Motion. The Motion essentially parrots the Court’s own

findings and analyses set forth in the April 29 Order and the May 13 Order. So,

Plaintiffs assertion of falsity rests on the premise that the Court’s prior findings

were “unequivocally false” and erroneous and, further, that the Ninth Circuit

similarly erred when it dismissed Plaintiffs appeal from the May 13 Order as

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“frivolous.” Moreover, if Plaintiff s assertion of falsity were correct, then all of the

Supreme Court and Ninth Circuit decisions on which the Court has relied in finding

the third res judicata element met necessarily were decided wrongly as well.

Plaintiffs untimely invitation to reconsider the Court’s prior rulings is declined,

particularly the factually and legally meritless nature of his arguments.

Plaintiffs argument rests primarily on Semtek Int’l Inc. v. Lockheed Martin

Corp., 531 U.S. 497 (2001), which he claims stands for the proposition that the

Supreme Court has held that, for res judicata purposes, a Rule 41(b) dismissal “is

not an adjudication on the merits, but rather, a dismissal without prejudice.”

[Opposition at 10.] Apart from the fact that this assertion contradicts Costello,

supra, Plaintiff misunderstands the Semtek decision, which stemmed from a

California federal district court’s dismissal of the plaintiffs diversity jurisdiction

lawsuit “on the merits and with prejudice” as barred by California’s two-year statute

of limitations. Id. at 499. The plaintiff then sued the same defendant in a new

action in Maryland state court, where the claims were timely under Maryland’s

three-year statute of limitations. Id. at 500. The Maryland state court found that,

under federal law, the dismissal of the California case had a preclusive effect for res

judicata purposes and dismissed the action. Id. The Supreme Court reversed and

remanded, holding that for purposes of the res judicata effect of a first judgment

stemming from a diversity case, the rules of preclusion of the state in which the

diversity court sits are incorporated and govern. Id. at 508-09.

Semtek involved claims filed in different fora and which were dismissed in the

first instance pursuant to a state law untimeliness rule under an exercise of diversity

jurisdiction. The Supreme Court found that, in those particular circumstances, a

dismissal with prejudice in the first forum may not constitute an adjudication on the

merits sufficient to find the claim barred by res judicata when it is re-raised in a

different forum, where it otherwise would not be time-barred. As the Ninth Circuit

has recognized, however, Semtek only applies when there is a dismissal in one court

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and the claim is re-raised in a different court;' it is inapplicable when the original

dismissal and the subsequent re-filing of the claim occur in the same federal court.

Headwaters, 399 F.3d at 1052 n.4. Here, the Court is not faced with a prior

judgment from a different court that was dismissed under state law principles, but

rather, multiple judgments issued by the same federal court sitting in federal

question jurisdiction rather than diversity. Semtek does not govern here. Moreover,

contrary to Plaintiff’s assertion, Semtekplainly did not hold that a dismissal under

Rule 41(b) necessarily is a dismissal without prejudice that cannot have res judicata

effect in federal question cases. Semtek did not even involve the effect of a prior

involuntary dismissal for failure to prosecute or to comply with court orders or rules.

In any event, as shown above, under longstanding precedent, an involuntary

dismissal pursuant to Federal Rule of Civil Procedure 41(b) is a dismissal on the

merits and with prejudice for purposes of this case.

14-

As secondary support for his argument, Plaintiff cites to Wright & Miller,

Federal Practice and Procedure, § 4440, for the proposition that a penalty-based

dismissal will not be accorded res judicata effect. Plaintiff’s invocation of the cited

portion of this treatise is odd, to say the least, given that the treatise makes

abundantly clear that a penalty dismissal, whether under Rule 41(b) or as a

discovery sanction, will result in a res judicata bar of a second action under the

above-noted language of Rule 41(b). Equally oddly, without any citation provided,

Plaintiff alludes to a case entitled “Hardy v. America Best Home Loans,” purports to

quote from it, and represents that the Supreme Court therein reversed the Ninth

Circuit and held that a penalty dismissal will not be accorded claim preclusion

effect. [Opposition at 5-6, 10.] The Court has been unable to find any such

Supreme Court or Ninth Circuit decision under that case title. In fact, the language

Plaintiff quotes is contained in a California decision, Hardy v. America’s Best Home

Loans, 232 Cal. App. 4th 795, 806-07 (2014), which has no application here.

Plaintiff’s representation that Hardy is a Supreme Court decision that rendered a

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federal law holding is untrue.

The second obvious problem with Plaintiffs res judicata argument is that it

rests on his mischaracterization of the record, namely, his misrepresentations as to

District Judge O’Connell’s actions and orders in the First Action and the Second

Action.6 To start with, as noted earlier, Plaintiff contends that the First Action

Dismissal Order necessarily issued on a without prejudice basis, because District

Judge O’Connell said that she would not have dismissed the case if only Plaintiff

had disclosed additional medical records, but he could not do so due to his concern

about privacy and the effect on his career and life opportunities. [Opposition at 3.]

Plaintiffs proffered excuse is unconvincing, given that the record demonstrates that

Plaintiff actually did submit a number of medical records in the First Action and

when he did so, he repeatedly asked that they be filed under seal, which was

permitted. [See First Action Docket Nos. 50 (Ex. 1), 51, 75-76, 147, 154, 155, 156.]

Plaintiff plainly knew exactly what do to protect his privacy with respect to any

medical records he wished to submit in the First Action and he took the necessary

steps.

In any event, Plaintiffs failure to submit additional medical records is not the

reason why the First Action was dismissed, as the record establishes. While

Plaintiff quotes a selected portion of the First Action Dismissal Order that he claims

In another mischaracterization of the record, Plaintiff states that the reasons given by the

Court for dismissing the Third Action through the April 29 Order were that the complaint

contained defective causes of action and co-defendants, and that he eliminated “all defects”

identified in the April 29 Order when he initiated the Fourth Action. [Opposition at 15.] In fact,

the first and principal reason identified in the April 29 Order for dismissing the Third Action

without leave to amend was res judicata, and the secondary reason was untimeliness, both nonrectifiable defects. While the April 29 Order did note that some of the claims alleged failed on

their faces (i.e., sought civil relief for violations of federal or state criminal statutes or were

brought directly under the California Constitution or California Civil Code provisions, even

though no private rights of action had been authorized under any of them), the bases for dismissal

of the entire action were res judicata and untimeliness. Moreover, the May 13 Order dismissing

the Fourth Action expressly found that the complaint filed did not rectify the inherent res judicata

and untimeliness problems identified in the April 29 Order; Plaintiffs representation here that he

had done so simply is not correct.

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shows that District Judge O’Connell was equivocal about dismissing the First

Action, a reading of her entire Order, as well as the filed transcript of the hearing,

makes clear the disingenuous nature of Plaintiff s selective quotation. District Judge

O’Connell plainly did take Plaintiffs medical situation into account in making her

decision to issue an involuntary dismissal order in the First Action. She noted that

she did “not doubt that Plaintiff experiences health-related difficulties” and that if

Plaintiff had provided evidence that he was “truly completely incapacitated on each

and every date where he missed a hearing or filing deadline,” she might be “less

inclined” to dismiss the First Action. That said, District Judge O’Connell then

explained why dismissal was required regardless of Plaintiff s medical situation:

However, while Plaintiff has proffered some evidence

that he faced some medical problems, it is not clear to

this Court that this should excuse his repeated failure to

appear. In addition, during the time frame Plaintiff

claims to be incapacitated he engaged in litigation in the

court of appeal. Further, Plaintiff could have challenged

the earlier imposition of sanctions based on his

incapacitation on the specific dates for which he was

sanctioned for failing to appear; however, Plaintiff

provided no satisfactory explanation then, and he has not

provided one now, as to why he was unable to appear on

any of his scheduled deposition dates and why he missed

multiple hearing dates. Further, Plaintiff appears to have

been sufficiently well, as a general matter, to be able to

prosecute this case, as well as file a premature appeal of

an order in this case; Plaintiff has filed multiple motions

and ex parte requests in this action. The Court is

skeptical, therefore, that Plaintiff was truly incapacitated

on each of his scheduled deposition dates.

17’

(First Action Dismissal Order at 7.) In short, District Judge O’Connell made it clear

that while she believed that Plaintiff did suffer from medical issues that rendered

things difficult for him, this was not enough to excuse his ongoing noncompliance,

because she believed that Plaintiffs own behavior during the course of the litigation

belied his assertion that his repeated failures to appear for his deposition and to

otherwise comply with discovery and hearing obligations should be excused by his

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assertions of medical problems.

In addition, at both the hearing on the Defendants’ First Action motion to

dismiss and in her First Action Dismissal Order, District Judge O’Connell outlined

Plaintiffs repeated failures to comply with discovery, rules, and court orders and the

related imposed sanctions that had proven to be ineffective at getting him to meet

his obligations. [First Action Dismissal Order at 2-3; Docket No. 164 (transcript of

April 14, 2014 hearing) at 6.] She noted that Plaintiff had been given “multiple

attempts to litigate this case” and she afforded him the opportunity to explain why

the case should continue, before ultimately concluding that Plaintiff had squandered

the “opportunity after opportunity” he had been afforded to litigate the case, that

“legally the time has come,” and that she had “no alternative” but to dismiss the

case. [Docket No. 164 at 3-4, 7-8.] Any notion that District Judge O’Connell was

reticent about dismissing the First Action based on concerns about Plaintiff s

medical situation or otherwise, and that she intended the dismissal to be on a

without prejudice basis, is fully belied by the First Action record.

Plaintiffs second argument is that District Judge O’Connell intended the First

Action Dismissal Order to be on a without prejudice basis, because three years later

in the Second Action, she purportedly expressly rejected Defendants’ res judicata

argument set forth in their motion to dismiss. [Opposition at 4 Ins. 7-12 (asserting

that District Judge O’Connell “dispelled any notion of [the First Action’s] dismissal

with prejudice in the Order of Remand [in the Second Action] rejecting all the

arguments, pleading the statute of limitations, collateral estoppel, claim preclusion

and res judicata in their motion for dismissal”); id. at 9 Ins. 11-13 (asserting that the

First Action Dismissal Order was denied without prejudice, because District Judge

O’Connell “stated as much in her ruling” denying the motion to dismiss in the

Second Action); and id. at 12-13 (asserting that in her order remanding the Second

Action, District Judge O’Connell “rejected” the Defendants’ motion to dismiss

arguments, including that the First Action Dismissal Order was “with prejudice”)).

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Plaintiffs representations are, yet again, untrue.

As noted earlier, after Defendants removed the Second Action, they filed a

motion to dismiss, raising as grounds, inter alia, res judicata and untimeliness.

District Judge O’Connell denied that motion as moot after Plaintiff filed an amended

complaint in response to it. Contrary to Plaintiffs representation, she did not deny

the motion on any other basis and did not reach or resolve any of Defendants’

arguments. [Dkt. 15.] With his amended complaint, which now asserted only state

law claims, Plaintiff filed a motion to remand, arguing that the case belonged in

state court. Defendants thereafter moved to dismiss the amended complaint, again

asserting res judicata and untimeliness. [Dkt. 17.] They also filed an opposition to

the motion to remand, in which they argued that judicial economy principles

warranted keeping the Second Action before the federal court, given that District

Judge O’Connell had presided over the First Action and Plaintiffs claims lacked

merit. [Dkt. 16.]

Two weeks later, District Judge O’Connell issued her Order remanding the

Second Action. [Dkt. 18.] She noted that Plaintiffs motion to remand included

arguments in opposition to the motion to dismiss, but that the motion to dismiss

“addresses different issues than the instant [motion to remand] and that “the Court

does not consider these arguments.” [Dkt. 18 at 4 n.4.] In addressing the

Defendants’ judicial economy arguments, District Judge O’Connell noted that she

had never reached and ruled on the merits of Plaintiff s claims, and thus, judicial

economy did not favor exercising supplemental jurisdiction over an action that now

consisted only of state law claims. [Id. at 8-9.] She also noted that “Defendants

may argue that Plaintiff is estopped from” pursuing his claims based on the First

Action, but that the existence of any such res judicata issue would not render

remand judicially economical, because she had “never before considered” this

argument and, thus, there would be no duplication of resources if the argument were

made to the state court following remand. [Id. at 8 n.6.] District Judge O’Connell

Ap >endix of Petition for Writ of certiorari

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concluded that, after weighing all the relevant factors under 28 U.S.C. § 1367(a),

exercising supplemental jurisdiction over Plaintiff s state law claims was not

appropriate and remanded the case. [Id. at 10.] At no point in the remand order did

District Judge O’Connell consider, opine as to, or resolve Defendants’ res judicata

argument (or any other argument) raised in their motion to dismiss. [Id., passim.]

Plaintiffs assertion that she did so in her remand order, and therein rejected finding

the First Action Dismissal Order to serve as a res judicata bar, is plainly false.

Finally, the Court notes Plaintiffs contention that the Court’s April 29 and 13

Orders dismissing the Third and Fourth Actions as barred by res judicata should be

disregarded, because they are “to the detriment of’ and “incompatible” with District

Judge O’Connell’s First Action Dismissal Order and are “outside the norms of

federal jurisprudence and case law precedent.” [Opposition at 14-15.] To the

contrary, those two subsequent Orders gave the First Action Dismissal Order the full

deference and credit required by finding it to serve as a bar to Plaintiff s repetitive

third and fourth lawsuits, in compliance with Supreme Court and Ninth Circuit

precedent. If Plaintiff believed the April 29 Order and the May 13 Order to be

wrong and to be inconsistent with the First Action Dismissal Order, his remedy

would have been to take a timely appeal at the time those Orders issued. Plaintiff, in

fact, did so, as to the May 13 Order dismissal of the Fourth Action and the Ninth

Circuit agreed with this Court, finding that Plaintiffs appeal was so “frivolous” that

summary dismissal was warranted. Plaintiffs efforts here to overturn both the

California court’s decision on appeal finding the Second Action to be barred by res

judicata and this Court’s prior Orders finding that the First Action Dismissal Order

bars Plaintiffs third and fourth efforts to file the same lawsuit over and. over are

untimely, procedurally improper, and in any event, ineffectual.

The substance and claims of the instant Complaint have been the subject of

four prior lawsuits filed by Plaintiff - three initiated directly in this District by

Plaintiff and one pending here for a brief period based on removal followed by a

of Petition for Writ of certiorari

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remand. The first lawsuit was resolved adversely to Plaintiff through an involuntary

dismissal that, by operation of law, is deemed to be an adjudication on the merits

with prejudice. When the second lawsuit was returned to state court, the Los

Angeles County Superior Court and the California Court of Appeal found that the

second lawsuit was barred by claim preclusion principles. When Plaintiff filed the

same lawsuit for a third time in this Court, the April 29 Order issued, finding the

lawsuit to be barred by res judicata (as well as its untimeliness). When Plaintiff

filed this same lawsuit for a fourth time in this Court, the May 13 Order again found

the lawsuit to be barred by res judicata (and its untimeliness). There is no basis for

concluding otherwise in the face of Plaintiff s fifth attempt to bring an effectively

identical lawsuit. While there have been nominal variations over time in the labels

and forms of Plaintiff s claims, they have remained identical in substance and with

respect to the injuries for which he seeks redress, as have the nucleus of facts that

14"

are alleged to support his right to relief. This action is barred by res judicata - a

fundamental and preclusive defect that cannot be corrected through amendment.

Thus, allowing amendment would be a futile, empty, and wasteful gesture.

Therefore, the Motion should be granted, leave to amend should be denied, and this

case should be dismissed with prejudice.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue

an Order: (1) accepting this Report and Recommendation; (2) granting the Motion

and dismissing the Complaint without leave to amend; and (3) dismissing this action

with prejudice.

DATED: November 15, 2021

GAIL J. STANDISH

UNITED STATES MAGISTRATE JUDGE

lix of Petition for Writ of certiorari

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NOTICE

Reports and Recommendations are not appealable to the United States Court

of Appeals for the Ninth Circuit, but may be subject to the right of any party to file

objections as provided in the Local Civil Rules for the United States District Court

for the Central District of California and review by the United States District Judge

whose initials appear in the docket number. No notice of appeal pursuant to the

Federal Rules of Appellate Procedure should be filed until the District Court enters

judgment.

lix of Petition for Writ of certiorari

Page 39 of 66

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.