Opinion
Case No. 1:15-cv-01352-SKO (PC)
09-10-2015
JOSEPH GILBERT, Plaintiff, v. FELIX IGBINOSA, et al., Defendants.
ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED AS BARRED BY DOCTRINE OF RES JUDICATA (Doc. 1)
Plaintiff Joseph Gilbert, a state prisoner proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 4, 2015. Plaintiff alleges that his rights were violated during his incarceration at Pleasant Valley State Prison ("PVSP") between 2004 and 2009. His claims arise from his exposure to and contraction of Valley Fever.
The statute of limitations which applies to Plaintiff's federal § 1983 claims is two years. Cal. Civ. Proc. Code § 335.1; Butler v. Nat'l Cmty. Renaissance of California, 766 F.3d 1191, 1198 (9th Cir. 2014). Plaintiff may be aware of the timeliness issue, as he alleges that this is an amended complaint which relates back to his original complaint in case number 1:09-cv-020650-AWI-DLB, Gilbert v. Yates, et al., and that he discovered new evidence. (Comp., 7:20-26.) However, Plaintiff may not relate his complaint in this new action back to the complaint filed in his prior action. See Fed. R. Civ. P. 15(c); Cal. Civ. Proc. Code § 473; Butler, 766 F.3d at 1201. Moreover, Plaintiff's prior case, which involved his exposure to and contraction of Valley Fever while at PVSP, was dismissed with prejudice for failure to state a claim upon which relief may be granted on February 10, 2011; and the ruling was affirmed on appeal on July 25, 2012. The doctrine of res judicata, or claim preclusion, bars Plaintiff from bringing his claims a second time in a new suit. Headwaters, Inc. v. U.S. Forest Serv., 399 F.3d 1047, 1051 (9th Cir. 2005).
Plaintiff may also be entitled to two additional years under the applicable tolling statute, if he is not serving a sentence of life without the possibility of parole. Cal. Civ. Proc. Code § 352.1.
To the extent Plaintiff seeks relief from the prior judgment based on newly discovery evidence, his sole recourse is to seek relief in his prior case. Fed. R. Civ. P. 60(b). However, motions to set aside judgment based on newly discovery evidence must be brought within one year, Fed. R. Civ. P. 60(c)(1). --------
Accordingly, Plaintiff is HEREBY ORDERED to show cause within thirty (30) days from the date of service of this order why this action should not be dismissed, with prejudice, as barred by the doctrine of res judicata. Headwaters, Inc., 399 F.3d at 1054-55. IT IS SO ORDERED. Dated: September 10 , 2015
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE