United States District Court, D. South Dakota, Southern Division
MARSHALL W. HENDERSON, Plaintiff,
DR. ROYCE ENGSTROM, DR. JAMES S. KORCUSKA, DR. FRANK MAIN, DR. GRACE A. MIMS, DR. KAREN OLMSTEAD, DR. SETH OLSON, DR. TAD PERRY, DR. LINDA REETZ, DR. TERISA REMELIUS, THE SCHOOL OF EDUCATION AT THE UNIVERSITY OF SOUTH DAKOTA, THE SOUTH DAKOTA BOARD OF REGENTS, and PRESIDENT JAMES W. ABBOTT, Defendants.
OPINION AND ORDER GRANTING MOTION TO PROCEED IFP AND DISMISSING COMPLAINT
ROBERTO A. LANGE, District Judge.
Plaintiff Marshall W. Henderson, appearing pro se, filed a motion to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915(a). For the reasons explained below, this Court grants Henderson's motion to proceed IFP but dismisses his complaint under 28 U.S.C. § 1915(e)(2)(B) as barred by res judicata.
Henderson's suit, which arises out of his dismissal from the community counseling program at the University of South Dakota's (USD) Graduate School, asserts the following eight claims: violation of contract (Count I), lack of procedural due process (Count II), violations of Americans with Disabilities Act (ADA) accommodations (Count III), harassment of students (Count IV), misuse of Title IX protocols in investigating sexual harassment charges (Count V), Family Education Rights and Privacy Act (FERPA) violations (Count VI), educational malpractice (Count VII), and barring from readmission into an alternate program at the University of South Dakota (Count VIII). Doc. 1.
This Court is very familiar with the allegations in Henderson's complaint as he filed a virtually identical complaint in 2010 against Dr. Royce Engstrom, Dr. James Korcuska, Dr. Frank Main, Dr. Grace A. Mims, Dr. Karen Olmstead, Dr. Seth Olson, Dr. Tad Perry, Dr. Linda Reetz, Dr. Terisa Remelius and the School of Education at USD. See Henderson v. Engstrom, CIV 10-4116, Doc. 1. Henderson's 2010 complaint alleged the same facts, asserted the same eight claims, and requested the same relief as his present complaint. See CIV 10-4116, Doc. 1.
This Court granted summary judgment against Henderson in his 2010 case, finding that the Eleventh Amendment barred Henderson's claims for money damages against USD and its employees and that the defendants were entitled to judgment as a matter of law on the merits of all of Henderson's claims. Henderson v. Engstrom, Civ. No. 10-4116-RAL, 2012 WL 4009108 (D.S.D. Sept. 12, 2012). Shortly after this Court entered a judgment of dismissal against him, Henderson submitted a letter from a USD employee inviting him to complete a graduate degree in USD's Master of Arts in Interdisciplinary Studies (MAIS) program. CIV 10-4116, Docs. 87, 87-1. Henderson construed the letter as an "inadvertent settlement offer" and stated that he intended to "utilize the... letter in court as evidence that he should never have been barred from receiving his degree." CIV 10-4116, Doc. 87 at 2. Henderson never filed a motion under the Federal Rules of Civil Procedure seeking relief from the judgment.
Approximately thirty days after the judgment of dismissal, Henderson filed a one-sentence letter requesting an extension of time to file a notice of appeal under Rule 4(a)(5) of the Federal Rules of Appellate Procedure. CIV 10-4116, Doc. 88. This Court denied Henderson's request without prejudice to Henderson refiling his motion with a valid showing of "excusable neglect or good cause" under Rule 4(a)(5)(A). CIV 10-4116, Doc. 89. Henderson then waited approximately one more month before filing a second request for an extension of time to file a notice of appeal. CIV 10-4116, Doc. 90. This Court denied Henderson's request because he failed to show the requisite "excusable neglect or good cause" under Rule 4(a)(5)(A). CIV 10-4116, Doc. 92.
II. Title 28 U.S.C. § 1915 and Res Judicata
Henderson's affidavit establishes that he is sufficiently impoverished to qualify for IFP status under 28 U.S.C. § 1915. See 28 U.S.C. § 1915(a) (permitting a court to authorize the commencement of a suit without the prepayment of fees when an applicant demonstrates the appropriate need). Yet this does not necessarily mean that Henderson is entitled to proceed with his case. Section 1915(e)(2)(B) requires dismissal of an IFP complaint at any time if the court determines that the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). When determining whether a complaint fails to state a claim upon which relief may be granted, this Court "assumes as true all factual allegations in the pleadings, interpreting them most favorably to the [pleader]." Magee v. Trs. of Hamline Univ. , 747 F.3d 532, 534-35 (8th Cir. 2014); Atkinson v. Bohn , 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam) (applying standard of review for failure to state a claim under Rule 12(b)(6) applicable at the time to a dismissal under § 1915(e)(2)(B)(ii)). Henderson is proceeding pro se and his complaint is therefore entitled to a liberal construction. Atkinson , 91 F.3d at 1129.
Because Henderson's complaint is almost identical to his 2010 complaint, res judicata bars the majority of his claims. Jurisdiction over Henderson's 2010 complaint rested on federal question jurisdiction, with this Court exercising supplemental jurisdiction over Henderson's remaining state-law claims. As such, federal law controls the res judicata effects of the 2010 judgment against Henderson. See In re Residential Capital, LLC , 507 B.R. 477, 490 (Bankr. S.D.N.Y. 2014) ("When federal jurisdiction in a prior case is based on federal question jurisdiction, with the court exercising supplemental - not diversity - jurisdiction over the plaintiffs remaining claims, federal preclusion doctrine applies."); see also Hufsmith v. Weaver , 817 F.2d 455, 460 (8th Cir. 1987) (finding that federal rules of res judicata controlled effects of a federal-question judgment when a state-law claim was later decided as a matter of supplemental jurisdiction). The doctrine of res judicata encompasses the concepts of both issue preclusion and claim preclusion. Taylor v. Sturgell , 553 U.S. 880, 892 (2008). Where res judicata applies to an IFP plaintiff's complaint, courts have dismissed the complaint under § 1915(e)(2)(B) for failure to state a claim or for being frivolous. McMillian v. Trans World Airlines Inc., 331 F.Appx. 103, 104 (3d Cir. 2009) (per curiam) (dismissing appeal as frivolous under § 1915(e)(2)(B) because res judicata barred complaint); Pointer v. Parents for Fair Share, 87 F.Appx. 12 (8th Cir. 2004) (per curiam) (affirming dismissal of complaint under § 1915(e)(2)(B) as frivolous when res judicata barred claims); Cieszkowska v. Gray Line N.Y. , 295 F.3d 204, 205-06 (2d Cir. 2002) (per curiam) (affirming dismissal of complaint under § 1915(e)(2)(B) for failure to state a claim upon which relief can be granted where claim was barred by res judicata).
The doctrine of claim preclusion provides that "a final judgment on the merits bars further claims by parties or their privies based on the same cause of action." Costner v. URS Consultants, Inc. , 153 F.3d 667, 673 (8th Cir. 1998) (quoting United States v. Gurley , 43 F.3d 1188, 1195 (8th Cir. 1994)). The requirements for application of claim preclusion are: "(1) the first suit resulted in a final judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) both suits involve the same parties (or those in privity with them); and (4) both suits are based upon the same claims or causes of action." Yankton Sioux Tribe v. U.S. Dep't of Health & Human Servs. , 533 F.3d 634, 639 (8th Cir. 2008) (quoting Costner , 153 F.3d at 673).
The first two elements of claim preclusion are satisfied. This Court's grant of summary judgment on all of Henderson's claims in his 2010 case was a final judgment on the merits and was based on proper jurisdiction.
The third element of claim preclusion likewise is met. The only distinction between the parties in the present action and the parties in the 2010 action is that Henderson now is suing USD President James Abbott and the South Dakota Board of Regents. The question, then, is whether the parties in the first law suit are the same or in privity with the parties in the present suit for purposes of claim preclusion. Parties are in privity with one another when they have "a close relationship, bordering on near identity." Daley v. Marriott Int'l, Inc. , 415 F.3d 889, 897 (8th Cir. 2005) (quoting Gurley , 43 F.3d at 1197)). The USD employees in this suit are the same as or in privity with the parties in the 2010 suit with respect to Henderson's official-capacity claims. When, as here, a plaintiff brings successive suits against public officials, the question of privity often depends on the capacity in which the plaintiff is suing the officials. Compare Baker v. Chisom , 501 F.3d 920, 925 (8th Cir. 2007) ("The doctrine of res judicata bars a plaintiff from suing a succession of public officials on the same official-capacity claim."), with Headley v. Bacon , 828 F.2d 1272, 1279 (8th Cir. 1987) ("[L]itigation involving officials in their official capacity does not preclude relitigation in their personal capacity."). Because Henderson's 2010 complaint did not make clear whether he was suing the USD employees in their private or official capacities, this Court construed the complaint as alleging official-capacity claims only. Henderson, 2012 WL 4009108, at *4; see also Murphy v. Arkansas , 127 F.3d 750, 754 (8th Cir. 1997) ("[A]bsent a clear statement that officials are being sued in their personal capacities, we interpret the complaint as including only official-capacity claims.'" (quoting Egerdahl v. Hibbing Cmty. Coll. , 72 F.3d 615, 619 (8th Cir. 1995))).
Unlike his 2010 complaint, Henderson's current complaint states that he is suing the USD employees in their individual and official capacities. "A suit against a government official in his or her official capacity is another way of pleading an action against an entity of which an officer is an agent.'" Baker , 501 F.3d at 925 (quoting Monell v. Dep't of Soc. Servs. , 436 U.S. 658, 690 n.55 (1978)). "[T]he real party in interest in an official-capacity suit is the governmental entity and not the named official." Id . (alteration in original) (quoting Hafer v. Melo , 502 U.S. 21, 25 (1991)). Here, President Abbott and the USD employees are in privity with or the same as the parties to the first law suit for purposes of Henderson's official-capacity claims. See Baker , 501 F.3d at 925 (finding privity between officials of same government entity sued in their official capacity); Micklus v. Greer , 705 ...