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Fuller v. Johnson

United States District Court, W.D. Washington, Seattle

May 22, 2015



ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendant's Motion For Summary Judgment." Dkt. # 27. Having reviewed the memoranda and exhibits submitted by the parties, the Court finds as follows.


Plaintiffs, proceeding pro se, are former probationary Customs Inspectors (CI) for the United States Customs Service (now U.S. Customs and Border Protection, or "CPB" or "Agency") who previously brought unsuccessful actions under Title VII arguing that their terminations in late-2003 were discriminatory. The Court incorporates by reference the case backgrounds provided in Fuller v. Chertoff, C05-1308RSM (W.D. Wash. Sept. 8, 2006) (Dkt. # 39) and Hudson v. Chertoff, C05-1735RSL (W.D. Wash. Aug. 3, 2007) (Dkt. # 31).[1] Plaintiffs' subsequent actions before the Equal Employment Opportunity Commission ("EEOC") are listed exhaustively in the Complaint and in defendant's motion, and will not be relisted here. Dkt. # 1 (Compl.) at 2-3; Dkt. # 27 at 2-7.

Plaintiffs' current claims rest on allegations that the Agency interfered in plaintiffs' EEO investigations by concealing evidence and improperly tampering with documents and witness testimony.[2] Plaintiffs indicate that they only discovered evidence of this interference following the entry of judgment in their previous cases. See Dkt. # 1 (Compl.) at 13-14 (discovered public records evidencing Agency interference in 2009). Defendant primarily argues that this action is barred by res judicata and by plaintiffs' failure to exhaust administrative remedies. Dkt. # 27. The Court notes that plaintiffs previously raised a number of their current allegations in Rule 60 motions for relief from their District Court judgments, which were denied as untimely. Fuller, C05-1308RSM (W.D. Wash. Jan. 20, 2010) (Dkt. # 58); Hudson, C05-1735RSL (W.D. Wash. Nov. 24, 2009) (Dkt. # 46).

In their brief opposing summary judgment, plaintiffs move to amend their complaint to add constitutional and other claims. Dkt. # 31 (Pls. Resp.) at 15. Plaintiffs also allege fraud on the Court, and seek to have their prior adverse judgments vacated under Fed.R.Civ.P. 60. See Dkt. # 31 at 16. Plaintiffs have filed a surreply in support of their de facto motion to amend, Dkt. # 37-1 (Pls.' Surreply); in the interest of considering the full record, the Court has considered the surreply and the exhibits attached therewith.

For the reasons provided infra, the Court makes the following findings. All of plaintiffs' discrimination and retaliation claims are barred either by res judicata or due to plaintiffs' failure to exhaust administrative remedies and timely file in federal court. Plaintiffs are not entitled to relief under Rule 60 from the judgments entered against them, and plaintiffs have neither stated viable constitutional claims nor pled facts supporting any other claims on which relief can be granted. Thus, granting plaintiffs leave to amend their complaint would be futile. Defendant is entitled to summary judgment.


A. Summary Judgment

Summary judgment is appropriate if, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party, the moving party shows that "there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). The moving party "bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by "pointing out... that there is an absence of evidence to support the nonmoving party's case." Id. at 325.

Once the moving party has satisfied its burden, the nonmoving party must then set out "specific facts showing that there is a genuine issue for trial" in order to defeat the motion. Id. at 324. "The mere existence of a scintilla of evidence in support of the non-moving party's position" is not sufficient; this party must present probative evidence in support of its claim or defense. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).

B. Res Judicata

The doctrine of res judicata "bars litigation in a subsequent action of any claims that were raised or could have been raised in [a] prior action." Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). The doctrine applies when (1) the prior and present lawsuits involve identical claims, (2) there was a final judgment on the merits of the first action, and (3) there is privity between the two parties in both of the actions. Frank v. United Airlines, 216 F.3d 845, 850 (9th Cir. 2000). In considering whether claims are "identical, " a court examines not whether the exact same causes of action have been asserted, but rather "(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts." Gospel Missions of America v. City of Los Angeles, 328 F.3d 548, 555 (9th Cir. 2003). The fourth factor is the most important. See ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d 960, 968 (9th Cir. 2010) (referring to it as "outcome determinative."). Two events are part of the same transaction or series of transactions where the claims share a factual foundation such that they could have been tried together. W. Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992).

"Different theories supporting the same claim for relief must be brought in the initial action." Id . The fact that some different evidence may be presented in the second action does not defeat the bar of res judicata. See Int'l Union of Operating Eng'rs-Emp'rs Constr. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1430 (9th Cir. 1993). Res judicata may bar claims that could not have been brought in the first action because plaintiffs had not ...

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