Free Reply to Response to Motion - District Court of California - California

Case 3:08-cv-00080-DMS-POR

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Filed 08/25/2008

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DAVID S. CHANEY Chief Assistant Attorney General 3 ROCHELLE C. EAST Senior Assistant Attorney General 4 MICHELLE DES JARDINS Supervising Deputy Attorney General 5 PHILLIP LINDSAY, State Bar No. 204444 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-3134 8 Fax: (619) 645-2581 Email: [email protected] 9 10 Attorneys for Defendant R. Darr 11 12 13 14 15 16 17 18 19 20 21 22 23 Defendant Darr respectfully submits his reply to Plaintiff's Opposition to Defendant's DARR, . v. MATTHEW L. JOHNSON, Plaintiff, 08-CV-0080-DMS (POR) DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO DISMISS Hearing: Time: Courtroom: Judge: September 18, 2008 2:00 p.m. H The Honorable Louisa S. Porter IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Special Briefing Schedule

24 Motion to Dismiss. This Court should dismiss this action because Plaintiff failed to exhaust his 25 administrative remedies before filing suit. This Court should also dismiss the Complaint as 26 frivolous because Plaintiff filed this second, identical action in an attempt to re-litigate the 27 exhaustion issue -- an issue he has already lost on. 28 ///
Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss Case No. 08-CV-0080-DMS (POR)

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ARGUMENT I. THIS COURT SHOULD DISMISS THE COMPLAINT BECAUSE PLAINTIFF IS ATTEMPTING TO RE-LITIGATE THIS COURT'S PREVIOUS FINDING THAT HE FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES BEFORE FILING SUIT This Court should dismiss this duplicative action because this Court has already found in

7 Johnson's first action that he failed to exhaust his administrative remedies. Johnson does not 8 dispute this. Rather, Johnson disputes the correctness of this Court's prior finding: 9 10 11 Plaintiff filed a complaint against this Correctional Officer timely and fully exhausted all administrative remedies before filing his last complaint to this Court, but because Plaintiff is a layman at law, and did the best he could at filing such complaint, plaintiff's complaint was dismissed based upon the way plaintiff addressed that complaint. . .

12 (Pl.'s Opp'n at 3:15-22.) Johnson's entire opposition attempts to re-litigate this Court's prior 13 finding, making the same arguments this Court already rejected. He even attacks the declaration 14 that was filed by Defendant in support of the motion to dismiss the first action. (Id. at 4:1-13.) 15 Johnson does not, however, address Defendant's argument that he is collaterally estopped from 16 re-litigating the exhaustion issue. Nor does he dispute in his opposition that he was given a full 17 and fair opportunity to litigate the exhaustion issue. 18 Moreover, Johnson does not address Defendant's argument that he failed to exhaust his

19 administrative remedies after his first action was dismissed. His failure to address this issue and, 20 instead, simply argue that the Court's previous decision was wrong, is evidence that he failed to 21 correct the deficiency after his first suit was dismissed. Because Johnson is collaterally estopped 22 from re-litigating the exhaustion issue, Clark v. Bear Stearns & Co., 966 F.2d 1318, 1320 (9th 23 Cir. 1992) and Clark v. Mason, No. C04-1647C, 2005 WL 1189577, at *4 (W.D. Wash. May 19, 24 2005), and because Johnson failed to cure his failure to exhaust before filing this second, 25 identical suit, this Court should dismiss this action for lack of exhaustion of administrative 26 remedies. 27 /// 28
Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss Case No. 08-CV-0080-DMS (POR)

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II. THE DISMISSAL OF THIS ACTION SHOULD COUNT AS A "STRIKE" UNDER THE PLRA As with the other points raised by Defendant's motion, Johnson fails to address Defendant's

5 argument that this action should be dismissed as frivolous. In his opposition, Johnson offers no 6 rationale or excuse for filing a second, identical action after his first action was dismissed for 7 failure to exhaust administrative remedies. Johnson was fully aware that his suit was barred 8 based on this Court's previous finding that he failed to exhaust his administrative remedies. Yet, 9 it appears that Johnson simply re-filed his action in an attempt to get a second bite at the apple. 10 Johnson offers no reasons and makes no arguments that he filed this action in good faith or that 11 he was under a mistaken belief that he could do so. 12 13 14 15 squarely falls in that category of frivolous actions. 16 Moreover, Johnson had the opportunity to voluntarily dismiss this action after receiving second action frivolous). This case

17 Defendant's motion to dismiss. Fed. R. Civ. P. 41(a). Instead of doing so, he filed an eight page 18 opposition ignoring Defendant's arguments and, instead, arguing that the previous finding 19 should be ignored as well. Because this action is frivolous, it should count as a "strike" under 20 the PLRA. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss Case No. 08-CV-0080-DMS (POR)

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CONCLUSION Johnson is collaterally estopped from re-litigating this Court's previous finding that he

3 failed to exhaust his administrative remedies. As such, this action is barred by the PLRA and 4 should be dismissed. This Court should also find that the dismissal of this action counts as a 5 "strike" under the PLRA; Johnson knew that this action was barred by the PLRA when he filed 6 it. 7 8 9 10 11 12 13 14 15 16 17 18 19
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Dated: August 21, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DAVID S. CHANEY Chief Assistant Attorney General ROCHELLE C. EAST Senior Assistant Attorney General MICHELLE DES JARDINS Supervising Deputy Attorney General

PHILLIP LINDSAY Deputy Attorney General Attorneys for Defendant R. Darr

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Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Dismiss

Case No. 08-CV-0080-DMS (POR)

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