Curtis v. Shapiro et al Doc.

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Case 3:05-cv-03883-MMC Document 4 Filed 09/28/2005 Page 1 of 2

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7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE NORTHERN DISTRICT OF CALIFORNIA
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10 ROBERT CURTIS, No. C-05-3883 MMC
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United States District Court

Plaintiff, ORDER RE: APPLICATION TO

12 PROCEED IN FORMA PAUPERIS
For the Northern District of California

v.
13 STEVE SHAPIRO, et al.,
14 Defendants.
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17 Before the Court is the complaint filed September 26, 2005 by plaintiff Robert Curtis,

18 and his application, filed the same date, to proceed in this action in forma pauperis.

19 Pursuant to 28 U.S.C. § 1915(e)(2), the Court must dismiss any complaint filed by a person

20 seeking to proceed in forma pauperis if the complaint “is frivolous or malicious” or “fails to

21 state a claim on which relief may be granted.” See 28 U.S.C. § 1915(e)(2).

22 Plaintiff alleges in his complaint that he has filed twelve prior complaints and that at

23 least some of them have been dismissed. (See Compl. ¶ 46.) The Court takes judicial

24 notice that plaintiff has filed at least seventeen actions in the District of Oregon within the

25 past two years. All of the defendants in the instant action have been sued by plaintiff in one

26 or more of his prior actions in the District of Oregon. Indeed, plaintiff filed at least three

27 such cases against the same set of defendants that have been sued in the instant action.

28 See Curtis v. Brong, Case No. C-05-00793 PA (D. Ore.), Curtis v. Shapiro, Case No. 05-
1040 PA (D. Ore.), Curtis v. Shapiro, Case No. 05-1270 PA (D. Ore.). All three of said

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1 cases have been dismissed with prejudice by the Honorable Owen Panner of the District of
2 Oregon on the ground that they were duplicative of one or more prior actions filed by
3 plaintiff. See Curtis v. Brong, No. C-05-00793 PA, slip op. (D. Ore. Aug. 30, 2005); Curtis
4 v. Shapiro, No. C-05-1040 PA, slip op. (D. Ore. Aug. 30, 2005); Curtis v. Shapiro, No. C-
5 05-1270 PA, slip op. (D. Ore. Aug. 30, 2005).
6 It thus appears that the instant action may be barred by the doctrine of res judicata.
7 Plaintiff may not evade the dismissal of his prior actions in the District of Oregon by filing a
8 new and duplicative action in this District. The doctrine of res judicata “is meant to protect
9 parties against being harassed by repetitive actions” and is applicable “whenever there is
10 (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between the
11 parties.” See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,
12 322 F.3d 1064, 1077 (9th Cir. 2003) (internal quotations and citations omitted). Plaintiff
13 may not avoid the doctrine of res judicata by “attaching a different legal label to an issue
14 that has, or could have, been litigated.” See id. Rather, an “identity of claims” exists “when
15 two suits arise from the same transactional nucleus of facts.” See id. (internal quotation
16 and citation omitted). “Newly articulated claims based on the same nucleus of facts may
17 still be subject to a res judicata finding if the claims could have been brought in the earlier
18 action.” Id.
19 Accordingly, plaintiff is hereby ORDERED to file, no later than October 21, 2005, a
20 supplemental brief demonstrating that the instant action is not barred by the doctrine of res
21 judicata, and attaching copies of the complaints filed in Curtis v. Brong, Case No. C-05-
22 00793 PA (D. Ore.), Curtis v. Shapiro, Case No. 05-1040 PA (D. Ore.), Curtis v. Shapiro,
23 Case No. 05-1270 PA (D. Ore.), and any other complaints relating to the subject matter of
24 the instant action. If plaintiff fails to file a timely supplemental brief, the Court will deny his
25 application to proceed in forma pauperis and dismiss the instant action with prejudice.
26 IT IS SO ORDERED.
27 Dated: September 28, 2005 MAXINE M. CHESNEY
United States District Judge
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