Opinion
8:22-cv-03800-DCC-JDA
03-03-2023
Donald Rouse, Plaintiff, v. Dana Nessel, R. Paul Viar, Dennis James, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on Defendants' two motions to dismiss. [Docs. 13; 27.] Plaintiff, proceeding pro se, filed this civil action under 42 U.S.C. § 1983, alleging violations of his constitutional rights. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff commenced this action by filing a Complaint on October 6, 2022, in the Saluda County Court of Common Pleas. [Doc. 1-1.] Defendants removed the action to this Court on November 1, 2022. [Doc. 1.] Defendants filed a motion to dismiss (the “First Motion to Dismiss”) on November 7, 2022. [Doc. 13.] By Order of this Court filed the same day, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately. [Doc. 15.]
On November 18, 2022, Plaintiff filed an Amended Complaint. [Doc. 24; see Doc. 22.] On December 1, 2022, Defendants filed a motion to dismiss the Amended Complaint (the “Second Motion to Dismiss”). [Doc. 27.] Plaintiff filed a response opposing that motion on December 13, 2022, and Defendants filed a reply on December 19, 2022. [Docs. 28; 30.] On December 27, 2022, Plaintiff filed a supplement to his response. [Doc. 32.]
In his supplement, Plaintiff objects to Defendants' filing of their reply brief, arguing that it “should have been submitted with the motion to dismiss.” [Doc. 32 at 2.] However, Local Rule 7.07, D.S.C, allows for the filing of a reply brief within seven days after service of the response, unless the Court orders otherwise.
Both of Defendants' motions to dismiss are now ripe for review.
BACKGROUND
From Plaintiff's Amended Complaint, the documents incorporated by reference therein, and judicial filings of which the Court may take judicial notice, the Court gleans the following facts.
When considering a motion to dismiss, a court may take judicial notice of public filings, including court filings. Goldfarb v. Mayor of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
An arrest warrant (“the 2015 Warrant”) was issued for Plaintiff on May 29, 2015, in Abbeville, South Carolina, based on a 2008 Michigan warrant for felony failure to pay the child support required by a Michigan family court order (“the Support Order”). [Doc. 24-1 at 6-7.] Plaintiff was arrested the same day in South Carolina. [Doc. 24 at 8 ¶ 15.] However, on February 1, 2017, the charges underlying the 2015 Warrant were dismissed nolle prosequi. [Doc. 24-1 at 10.]
On March 6, 2020, Plaintiff filed a pro se civil rights complaint under 42 U.S.C. § 1983 in this Court challenging his arrest in South Carolina pursuant to the 2015 Warrant (“the First Case”). See Rouse v. Nessel, No. 20-12088, 2021 WL 4785527 (E.D. Mich. July 30, 2021), Report and Recommendation adopted by 2021 WL 4452212 (E.D. Mich. Sept. 29, 2021), aff'd, No. 21-1630, 2022 WL 13631916 (6th Cir. July 11, 2022). Plaintiff alleges that on March 26, 2021, he “[a]mended his complaint [in the First Case] to sue [Defendant Michigan Attorney General Dana Nessel] and different defendants at the Michigan [Attorney General's] office for malicious prosecution.” [Doc. 24 at 4.] He alleges that five days later, on March 31, 2021, the Michigan Attorney General's Office issued an information (“the Information”) and obtained an arrest warrant (“the 2021 Warrant”) for felony non-support against Plaintiff. [Id. at 4-5; see Doc. 24-1 at 12-13.] Defendant Dennis James, a Special Agent for the Michigan Attorney General's office, was listed as the complaining witness. [Docs. 24 ¶ 11; 24-1 at 12-13.] The dates of the offense were listed as May 1, 2015 to February 28, 2017. [Doc. 24-1 at 12-13.] Defendant Michigan Assistant Attorney General R. Paul Viar signed the information. [Id. at 12.] Viar also signed as authorizing the 2021 Warrant, and James signed as the complaining witness. [Id. at 13.]
The case was originally filed in this Court and subsequently transferred to the Eastern District of Michigan, and was dismissed with prejudice on September 29, 2021. Rouse, 2021 WL 4452212.
The present action primarily concerns Defendants' alleged actions in issuing the Information and obtaining the 2021 Warrant. Plaintiff alleges that James signed the complaint seeking the 2021 Warrant “under penalty of perjury to charge [Plaintiff] with this fabricated crime with direct knowledge NO crime was committed, and NO probable cause existed.” [Doc. 24 at 4.] Plaintiff alleges that all Defendants “had direct knowledge and factual evidence there was NO crime or probable cause that existed to charge” Plaintiff and that “[Defendants had direct knowledge that the STATU[T]E OF LIMITATIONS [had] expired 6 years prior to [Defendants' charging Plaintiff] for the alleged crime.” [Id.] Plaintiff alleges that Defendants violated his First Amendment rights by issuing the 2021 Warrant “in retaliation for [Plaintiff's] [a]mending his complaint for monetary damages for Malicious Prosecution.” [Id. at 5.] Plaintiff alleges that Defendants violated his Fourteenth Amendment rights by making materially false statements and omissions to obtain issuance of the 2021 Warrant. [Id. at 5-6.] He alleges that Defendants' “punish[ment]” of him for doing “what the law plainly allow[ed] him to do” violated his Fifth and Fourteenth Amendment rights as well as his Fourth Amendment right “to be free from unreasonable seizures.” [Id. at 6-7.] And, he alleges that Defendants “conspired to impede and oppress[] [Plaintiff's] [r]ight to travel interstate by issuing th[e] warrant and entering it in [the Law Enforcement Information Network] and the Federal Bureau of Investigation's . . . National Crime Information Center.” [Id. at 7-8 (emphasis omitted).] Plaintiff also alleges that “Michigan Attorney General['s] Office lied to the South Carolina Sheriff[']s [Department]” when they told them that Plaintiff “was a Fugitive from justice.” [Id. at 8.]
In his supplement to his response opposing the Second Motion to Dismiss, Plaintiff clarifies that he is asserting that the 2001 Support Order “was TERMINATED on June 3rd, 2009” and that Defendants knew that before they issued the Information and 2021 Warrant. [Doc. 32 at 3.]
The Amended Complaint requests the following relief: a declaration that Defendants conspired to violate Plaintiff's rights and did violate his rights under the First, Fourth, Fifth, and Fourteenth Amendments; an order stopping the Michigan Attorney General's office and all named Defendants from falsifying court documents and issuing fictitious warrants; an order stopping the Michigan Attorney General's office and all named Defendants from conspiring to injure, oppress, threaten, impede, intimidate, and harass Plaintiff; and compensatory and punitive damages in the amount of $750,000. [Id. at 9.]
APPLICABLE LAW
Liberal Construction of Pro Se Pleadings
Plaintiff is proceeding pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the party proceeding pro se could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the pro se party's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
The Second Motion to Dismiss was brought under Rules 12(b)(1), (2), and (6). [Doc. 27.] However, because the Court addresses only the arguments of claim preclusion and issue preclusion, the Court sets out only the standard regarding Rule 12(b)(6).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.. The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 “‘is not itself a source of substantive rights,' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999).
Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant “deprived [the plaintiff] of a right secured by the Constitution and laws of the United States” and (2) that the defendant “deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage.” Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
The under-color-of-state-law element, which is equivalent to the “state action” requirement under the Fourteenth Amendment,
reflects judicial recognition of the fact that most rights secured by the Constitution are protected only against infringement by governments. This fundamental limitation on the scope of constitutional guarantees preserves an area of individual freedom by limiting the reach of federal law and avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.Id. (quoting Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998)) (internal citations and quotation marks omitted). Nevertheless, “the deed of an ostensibly private organization or individual” may at times be treated “as if a State has caused it to be performed.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Specifically, “state action may be found if, though only if, there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself.” Id. (internal quotation marks omitted). State action requires both an alleged constitutional deprivation “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State . . . or by a person for whom the State is responsible” and that “the party charged with the deprivation [is] a person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). A determination of whether a private party's allegedly unconstitutional conduct is fairly attributable to the State requires the court to “begin[ ] by identifying the specific conduct of which the plaintiff complains.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (internal quotation marks omitted).
DISCUSSION
In the Second Motion to Dismiss, Defendants argue, for several reasons, including the doctrines of claim preclusion and issue preclusion, that the Court should dismiss the Amended Complaint. [Doc. 27-1 at 8-21.] The Court agrees.
Plaintiff contends that the fact that the Court permitted him to file the Amended Complaint shows that he has cured the defects that Defendants had asserted warranted dismissal of his original Complaint. [Doc. 28 at 27.] In fact, however, the Court found as moot Plaintiff's motion to amend his original Complaint based only on Plaintiff's entitlement to amend as a matter of course pursuant to Rule 15(a)(1). [Doc. 22.] That ruling did not determine whether the Amended Complaint would be able to survive a motion to dismiss. The Court further notes that Plaintiff's Amended Complaint replaces his original Complaint and is considered to be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case.”). Because the Amended Complaint supersedes the original Complaint, the Court recommends that the First Motion to Dismiss [Doc. 13], directed at the original Complaint, be found as moot.
Given the Court's conclusion that Defendants are entitled to dismissal of this case on the basis of claim and issue preclusion, the Court declines to address Defendants' alternative arguments.
While the First Case was still pending, and prior to filing the present action, Plaintiff filed another pro se civil rights action under 42 U.S.C. § 1983 in the Eastern District of Michigan (“the Second Case”). The Second Case was based on nearly the same facts as the present case, and it named the same three defendants in their individual and official capacities. See Rouse v. Nessel, No. 2:21-cv-11626, 2022 WL 3585719, at *2-3 & n.3 (E.D. Mich. Aug. 22, 2022) (setting out facts). The court in that case construed Plaintiff's operable complaint to allege a claim of due process and lack of jurisdiction based on his contentions that “the warrants were not based on the [Support Order] since [that order] was terminated on June 3, 2009”; the 2021 Warrant “was barred by the statute of limitations”; and “the state court lacked personal jurisdiction over him.” Id. at *3-5. The court also construed Plaintiff's amended complaint to allege claims of First Amendment retaliation and malicious prosecution based on Defendants' obtaining issuance of the 2021 Warrant. Id. at *6-7. The court dismissed the due process and lack of jurisdiction claim with prejudice based on the Rooker/Feldman doctrine, res judicata and collateral estoppel, prosecutorial immunity, and failure to state a claim. Id. at *3-5. The court dismissed the First Amendment retaliation and malicious prosecution claims without prejudice on the basis that they were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Younger v. Harris, 401 U.S. 37, 43 (1971), given that the criminal case stemming from the 2021 charge was ongoing. Rouse, 2022 WL 3585719, at *6-7.
Again, the Court notes that in considering a motion to dismiss, a court may take judicial notice of public filings, including court filings. Goldfarb, 791 F.3d at 508.
As the Court will discuss, the district court in the Second Case-in what appears to be a scrivener's error-uses a caption with the defendants from the First Case.
Plaintiff also alleged claims under the criminal statutes, 18 U.S.C. §§ 241 and 242, which the court dismissed with prejudice. See Rouse v. Nessel, No. 2:21-cv-11626, 2022 WL 4231216, at *7 (E.D. Mich. Mar. 14, 2022), Report and Recommendation adopted by 2022 WL 3585719; see also Rouse, 2022 WL 3585719, at *3 (noting that Plaintiff did not object to the magistrate judge's conclusions regarding those claims).
“Under the Rooker-Feldman doctrine, a party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court.” American Reliable Ins. Co. v. Stillwell, 336 F.3d 311, 316 (4th Cir. 2003).
In Heck, the Supreme Court explained that “civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486. The Court then held that
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, . . . a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. Further, the Supreme Court stated that,
when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.Id. This is known as the “favorable termination” requirement. See Wilson v. Johnson, 535 F.3d 262, 263 (4th Cir. 2008).
Younger provides that a federal court should not interfere with ongoing state criminal proceedings “except in the most narrow and extraordinary of circumstances.” Gilliam v. Foster, 75 F.3d 881, 903 (4th Cir. 1996).
Defendants argue that because the present case involves the identical parties and is based on nearly the same factual allegations as the Second Case, they are entitled to dismissal of this case under the doctrines of claim preclusion and issue preclusion. [Docs. 27-1 at 10-12; 30 at 2-3.] The Court agrees.
“Although an affirmative defense such as res judicata may be raised under Rule 12(b)(6) only if it clearly appears on the face of the complaint, when entertaining a motion to dismiss on the ground of res judicata, a court may take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises no disputed issue of fact.” Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir. 2000) (internal quotation marks and citations omitted).
“Under the doctrine of claim preclusion, a prior judgment bars the relitigation of claims that were raised or could have been raised in the prior litigation . . . when three elements are satisfied: 1) the prior judgment was final and on the merits, and rendered by a court of competent jurisdiction in accordance with the requirements of due process; 2) the parties are identical, or in privity, in the two actions; and, 3) the claims in the second matter are based upon the same cause of action involved in the earlier proceeding.” Pittston Co. v. United States, 199 F.3d 694, 704 (4th Cir. 1999) (internal quotation marks omitted).That an original judgment dismissed some claims without prejudice does not prevent the judgment from being final for claim preclusion purposes, and it precludes relitigation of claims that dismissed with prejudice. See Hill v. Potter, 352 F.3d 1142, 1144, 1146 (7th Cir. 2003). Additionally, the doctrine of issue preclusion “bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (internal quotation marks omitted). “By precluding parties from contesting matters that they have had a full and fair opportunity to litigate, these two doctrines protect against the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibility of inconsistent decisions.” Id. (cleaned up).
When the earlier decision is a federal court decision based on federal question jurisdiction, as the Second Case is here, federal law governs the preclusive effect of the decision. Taylor v. Sturgell, 553 U.S. 880, 891 (2008); Snow Ingredients, Inc. v. Snowizard, Inc., 833 F.3d 512, 521 n.9 (5th Cir. 2016).
Claim Preclusion
The Court begins with the doctrine of claim preclusion. The decision in the Second Case was final, on the merits, and rendered by a court of competent jurisdiction. That the decision also dismissed some claims with prejudice and others without prejudice does not preclude the res judicata effect of the judgment regarding the jurisdiction/due process claim. See Hill, 352 F.3d at 1144, 1146. The second claim preclusion element is satisfied as well because the two cases involve the same parties.
“[C]ourts within the Fourth Circuit have acknowledged that a dismissal pursuant to Rule 12(b)(6) for failure to state a claim qualifies as an adjudication on the merits for the purpose of claim preclusion.” Hill v. SJV, LLC, No. 1:16-cv-0193 (GBL/TCB), 2017 WL 4476840, at *1 (E.D. Va. July 28, 2017).
Regarding the third element, Plaintiff argues that the causes of action in the two cases are different because Plaintiff did not assert a malicious prosecution claim in the Second Case. [Doc. 28 at 8.] Initially, the Court notes that the court in the Second Case construed Plaintiff's operable complaint as alleging a claim for malicious prosecution and addressed that claim, dismissing it without prejudice under Heck and Younger. Rouse, 2022 WL 3585719, at *6-7. In any event, as noted, claim preclusion applies not only to claims that “were raised” but also to those that “could have been raised” in the prior proceeding. Pittston, 199 F.3d at 704. “[T]he appropriate inquiry to determine whether [the] causes of action [in the two cases] are identical . . . is whether the claim presented in the new litigation ‘arises out of the same transaction or series of transactions as the claim resolved by the prior judgment.'” Id. (quoting Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). “The expression ‘transaction' in the claim preclusion context ‘connotes a natural grouping or common nucleus of operative facts.'” Id. (quoting Restatement (Second) of Judgments § 24 cmt. b). Causes of action constitute a single claim for claim preclusion purposes if they are related “in time, space, origin, or motivation, and [when] taken together, they form a convenient unit for trial purposes.” Id. In this case, there is no doubt that the present case does not present a different cause of action from the Second Case as the present case is based nearly entirely on facts that were alleged in the Second Case. The malicious prosecution claim, even had it not been asserted in the Second Case, would merely present a new theory of liability arising from the same cause of action. See Aliff v. Joy Mfg. Co., 914 F.2d 39, 43 (4th Cir. 1990) (“[R]es judicata may apply even though the plaintiff in the first suit proceeded under a different legal theory.”). Thus, the Court concludes that all three elements are satisfied and claim preclusion bars Plaintiff's claims.
Plaintiff had argued to the court in the Second Case that he was not asserting a malicious prosecution claim. Rouse, 2022 WL 3585719, at *6 n.6. The court nonetheless construed the complaint liberally as asserting such a claim. Id. at *6.
Plaintiff argues that res judicata does not apply here because the judgments issued in his prior cases are somehow “void.” [Docs. 28 at 9; 32 at 5.] But there is no basis for Plaintiff's argument. The judgment in the Second Case bars relitigation of his claims here for the reasons explained. Plaintiff points out that in the final judgment in the Second Case, the district court-in what appears to be a scrivener's error-uses a caption with the defendants from the First Case. [Doc. 32 at 5 (citing Doc. 28-1 at 2).] The Court sees no basis for attributing any legal significance to that error, however. See Smith v. Comm'r v. Internal Revenue, 67 F.2d 167, 169 (4th Cir. 1933) (“[Clerical errors and omissions in a judgment are not fatal, if by reference to other parts of the record the meaning is clear.” (internal quotation marks omitted)).
Issue Preclusion
The Court also notes that the doctrine of issue preclusion bars Plaintiff from relitigating whether his claims for malicious prosecution and First Amendment retaliation claim are barred by Heck and Younger. The party invoking issue preclusion must demonstrate the following elements: “(1) that the issue sought to be precluded is identical to one previously litigated”; “(2) that the issue was actually determined in the prior proceeding”; “(3) that the issue's determination was a critical and necessary part of the decision in the prior proceeding”; “(4) that the priorjudgment is final and valid”; and “(5) that the party against whom [issue preclusion] is asserted had a full and fair opportunity to litigate the issue in the previous forum.” E. Assoc. Coal Co. v. Dir., Off. of Workers' Comp. Programs, 578 Fed.Appx. 165, 173 (4th Cir. 2014) (internal quotation marks omitted). All of these elements are satisfied with regard to Defendants' entitlement to dismissal of the malicious prosecution and First Amendment claims. That these claims were dismissed in the Second Case without prejudice does not remove the preclusive effect of the court's determination that Defendants were entitled to dismissal of the claim. See Hill, 352 F.3d at 1146-47; Oudeh v. Goshen Med. Ctr., Inc., No. 5:22-CV-193-D, 2022 WL 18028281, at *4 (E.D. N.C. Dec. 29, 2022) (“[E]ven a judgment not on the merits will generally have preclusive effect at least as to the same issue for which dismissal was ordered.” (internal quotation marks omitted) (collecting cases)). To the extent that Plaintiff disagreed with the court's decision in the Second Case to dismiss his claims for malicious prosecution and retaliation based on Heck and Younger, his remedy was to make his argument via appeal of that decision, not to bring a second action on the same facts. See Clardy v. Bicigo, No. 12-11114, 2012 WL 5986635, at *6-8 (E.D. Mich. Sept. 6, 2012) (holding that prisoner was barred under the doctrine of issue preclusion from relitigating a claim that had been dismissed without prejudice under Heck when the relevant facts had not changed), Report and Recommendation adopted by 2012 WL 5986630 (E.D. Mich. Nov. 29, 2012).
The Court notes that Michigan court records show that Plaintiff's charge for failing to pay support remains pending. See https://micourt.courts.michigan.gov/case-search/court/D41B/case-details?caseId=2021-21-1467SM-FY-01&tenantKey=D41B-50-1867316-00-00&searchUrl=%2Fcourt%2FD41B%2Fsearch%3FfirstName%3Ddonald%26 middleName%3D%26lastName%3Drouse%26birthYear%3D0%26caseNumber%3D%2 6caseYear%3D0%26caseType%3D%26page%3D1 (last visited Mar. 2, 2023).
In sum, based on the doctrines of claim and issue preclusion, the Court recommends that the Second Motion to Dismiss be granted.
RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the Second Motion to Dismiss [Doc. 27] be GRANTED and Defendants' First Motion to Dismiss [Doc. 13] be FOUND AS MOOT.
IT IS SO RECOMMENDED.