1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE RIGOBERTO MORENO, Case No. 21-cv-00683-WHO

8 Plaintiff, ORDER ADOPTING MAGISTRATE 9 v. JUDGE’S REPORT AND RECOMMENDATION 10 PENA, et al., Re: Dkt. No. 22 Defendants. 11

12 13 On May 10, 2021, Magistrate Judge Joseph C. Spero issued a Report and Recommendation 14 (“R&R”), recommending that plaintiff Jose Rigoberto Moreno’s Amended Complaint be 15 dismissed with prejudice based on the preclusive effect of the judgment I entered in Moreno v. 16 Brettkelly, No. 20-cv-02082-WHO (N.D. Cal. Jan 7, 2021). Dkt. No. 22.1 Objections were due on 17 or before May 24, 2021. On May 22, 2021, Moreno filed a “Supplemented Statement Explaining 18 Assigned Orders by Magistrate Judge,” which I will construe as an objection. Dkt. No. 26. 19 In Moreno v. Brettkelly, after conducting an initial review pursuant to

1915(e)(2), I granted Moreno leave to amend his complaint. Dkt. No. 15.2 Because Moreno’s 21 amended complaint still failed to state a claim on which relief may be granted, I dismissed it 22 pursuant to

(e)(2). Dkt. No. 31. However, it appeared to me that he may have 23 been able to state an excessive force claim based upon the alleged January 23, 2019 incident with 24 San Francisco police officers.

Accordingly, to the extent Moreno sought to assert a claim 25

26 1 Magistrate Judge Spero also issued a sua sponte referral to determine whether this case is related to the Moreno v. Brettkelly matter that was before me. Dkt. No. 23. On May 17, 2021, I issued an 27 order relating the cases. Dkt. No. 24. 1 under 42 U.S.C § 1983 against the San Francisco Police Department and/or individual police 2 officers for use of excessive force, I dismissed that portion of his amended complaint without 3 prejudice and granted him leave to file a second amended complaint. Id. After about four months 4 with no response from Moreno, on November 20, 2020, I dismissed all of Moreno’s claims with 5 prejudice for failure to prosecute and ordered him to show cause why his section 1983 claim 6 should not also be dismissed with prejudice. Dkt. No. 33. On January 7, 2021, after reviewing 7 Moreno’s filings in response to my November 20, 2020 order and weighing the factors described 8 in Omstead v. Dell, Inc.,

(9th Cir. 2010), I found it appropriate to dismiss 9 Moreno’s section 1983 claim with prejudice and dismissed the entire Moreno v. Brettkelly mater 10 with prejudice. Dkt. No. 39. 11 A few weeks later, on January 25, 2021, Moreno filed this new action asserting 12 substantially similar section 1983 claims against San Francisco police officers involved in the 13 alleged January 23, 2019 incident. I agree with Magistrate Judge Spero’s Report and 14 Recommendation that all of the elements of res judicata are established to dismiss this action with 15 prejudice: “(1) the claims in the two cases are sufficiently identical, because both arise from the 16 common facts of Moreno’s alleged physical assault by San Francisco police officers outside the 17 [single-room occupancy hotel]; (2) Judge Orrick’s dismissal with prejudice and entry of judgment 18 operated as a final judgment on the merits, see Fed. R. Civ. P. 41(b); and (3) the parties are 19 identical, because Moreno is the plaintiff in both cases and asserts a violation of his constitutional 20 rights by the same police officers.” R&R at 6. 21 In his objection to the Report and Recommendation, Moreno points out that the civil cover 22 sheet he filed in Moreno v. Brettkelly shows that he marked it as an “SSID Title XVI” suit under 23 the Social Security category, unlike the civil cover sheet he filed here, in which he marked the 24 “Other Civil Rights” category. That does not change the fact that both suits still involve 25 sufficiently identical section 1983 claims regarding the January 23, 2019 incident, which creates 26 the preclusive effect under res judicata. This suit includes a section 1983 claim and the Moreno v. 27 Brettkelly matter involved multiple claims, including a sufficiently identical section 1983 claim. 1 objections, I agree with Magistrate Judge Spero’s Report and Recommendation and adopt it in 2 || full. Moreno’s Amended Complaint is DISMISSED WITH PREJUDICE based on the preclusive 3 effect of the judgment entered in Moreno yv. Brettkelly, No. 20-cv-02082-WHO (N.D. Cal. Jan 7, 4 |} 2021). 5 IT IS SO ORDERED. 6 || Dated: May 26, 2021 AM H. ORRICK 8 United States District Judge 9 10 11 a 12

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