Opinion
Civil Action No. 3:00-CV-1346-D
March 15, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff alleges that his former wife, acting in her capacity as a Dallas police officer, fabricated allegations against him to place him at a disadvantage in their bitter divorce proceeding, thereby prompting his false arrest and prosecution for the offense of making a terroristic threat. In an earlier suit, he had alleged that during the same divorce proceeding she falsely accused him of sexually abusing their daughter. Defendant moves for summary judgment, presenting the dispositive question whether plaintiff's present suit is barred by res judicata. Concluding that it is, the court grants the motion and dismisses the case.
I
Plaintiff Roy Lee Smith ("Smith") brings this lawsuit against defendant Vanessa R. Schrock ("Schrock"), his former wife. At the time of the events that give rise to Smith's lawsuit, Schrock was a City of Dallas police officer. Smith and Schrock were separated and undergoing a divorce. According to Smith, the couple married in 1985, separated in September 1995, and divorced in November 1996. See P. App. 1-2.
Smith contends that Schrock is liable under 42 U.S.C. § 1983 for violating his rights under the Fourth and Fourteenth Amendments by causing him to be falsely arrested on September 11, 1996, illegally detained, and maliciously prosecuted for committing the offense of making a terroristic threat on September 3, 1996. He asserts that after Schrock filed for divorce, she falsely accused him of threatening to kill her, and she induced a friend (a fellow police officer) to seek a warrant for his arrest on the false charge of making a terroristic threat, which resulted in his false arrest. Smith maintains that before she sought the warrant, Schrock knew the charge was fabricated and untrue, but she nevertheless pressed the charge, triggering his arrest and requiring that he post bail to obtain his release from jail, and forcing him to stand trial, at which he was acquitted.
This is not Smith's first suit against Schrock. In 1997 he sued her and another Dallas police officer. See Smith v. Smith, 1999 WL 378214 (ND. Tex. May 27, 1999) (Fish, J.) ("Smith I"), aff'd, 211 F.3d 594 (5th Cir. Mar. 24, 2000) (table) (per curiam). He alleged that Schrock had prompted his false arrest on October 10, 1995 and malicious prosecution for the aggravated sexual assault of the couple's daughter, D___. Smith alleged that Schrock "`invented' the story that he had sexually abused their daughter, [D___], in order to gain an advantage in their divorce proceeding." Id, at *1. He also asserted that Schrock had conspired with the codefendant officer "to seek a warrant for his arrest based on the fabricated charge." Id. Smith averred that Schrock and the other officer "knew that there was no probable cause to believe that he had violated any law and that they acted with malicious intent when they obtained the warrant." Id.
Due to the availability of court documents and opinions via the Internet and other media, this court has adopted a policy that encourages litigants to exclude or redact the names of minors from documents filed with the court. To promote the efficacy of this policy, the court will redact the name of the parties' minor child from this memorandum opinion.
Schrock moves for summary judgment maintaining that (1) there was probable cause to arrest Smith for the offense of terroristic threat; (2) there was probable cause to prosecute Smith; (3) Schrock is entitled to qualified immunity; (4) Smith's action is barred by res judicata, and(5) Smith's malicious prosecution claim is time-barred. Smith opposes the motion.
Schrock argues that she is entitled to dismissal of Smith's malicious prosecution claim on the ground that it is time-bred under the one-year Texas statute of limitations. Smith responds that his claim is brought under § 1983, not state law. In view of the court's conclusion that Smith's suit is bred by res judicata, it need not address this defense.
II
Schrock contends she is entitled to summary judgment because there was probable cause to rest Smith for the offense of terroristic threat.
Although, in view of the basis on which the court grants summary judgment, it need not address the probable cause arguments, because the court's reasoning concerning these issues will assist in understanding its analysis of the qualified immunity question, it will address them.
A
"Probable cause to arrest exists `where "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed.'" United States v. Lee, 962 F.2d 430, 435 (5th Cir. 1992) (quoting United States v. Preston, 608 F.2d 626, 632 (5th Cir. 1979)). "Probable cause must be judged not with the logic of cold steel, but with a common sense view to the realities of everyday life." Id. at 435 (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)). "The existence of probable cause is not determined by reference to a precise formula. Instead, probable cause is present `when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.'" Vance v. Nunnery, 137 F.3d 270, 276 (5th Cir. 1998) (quoting United States v. Levine, 80 F.3d 129, 132 (5th Cir. 1996)). The court is to examine the totality of the circumstances to determine whether probable cause existed. Mendenhall v. Riser, 213 F.3d 226, 231 (5th Cir. 2000). "`[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.'" Id. (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). "[A] peace officer who arrests someone with probable cause is not liable for false rest simply because the innocence of the suspect is later proved." Pierson v. Ray, 386 U.S. 547, 555 (1967). "It is not necessary that the resting officer himself have personal knowledge of all of the facts." Lee, 962 F.2d at 435. Rather, "probable cause can rest upon the collective knowledge of the police . . . when there is some degree of communication between [them]." Id. (citation and internal quotation marks omitted). "[P]robable cause is the `sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers.'" United States v. Shaw, 701 F.2d 367, 376 (5th Cir. 1983) (quoting United States v. Edwards, 577 F.2d 883, 895 (5th Cir. 1978) (en banc)). Probable cause is not to be determined by weighing "[e]ach individual layer of information" but by considering "the `laminated total' of the facts available[.]" Id. "Whether [an] rest [is] constitutionally valid depends in turn upon whether, at the moment the rest was made, the officers had probable cause to make it — whether at that moment the facts and circumstance within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Mendenhall, 213 F.3d at 231 (emphasis deleted) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)).B
Section 22.07(a) of the Texas Penal Code defines the Texas crime of terroristic threat. It provides inter alia that "[a] person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to . . . place any person in fear of imminent serious bodily injury[.]" Tex. Penal Code Ann. § 22.07 (a)(2) (Vernon 1994).
If the facts that Schrock has adduced were found to be true at trial, her argument likely would have merit. Schrock avers in her affidavit that, in the summer of 1996, at a time when the two were separated and he was under a restraining order, Smith parked in front of her house a couple of times a week and, more than once, came to her door and initiated a confrontation. D. App. 2. Schrock feared for her safety and that of her daughter, D___. Once, when she called the police, they arrived at her home and asked Smith not to return. Id. Smith departed without incident. Smith also telephoned Schrock, stating that she "better watch [her] back," that he would "stomp" her, and that he would pick up D___ from school and never return. Based on Smith's behavior, Schrock moved D___ to a new school. Id.
According to Schrock, on September 3, 1996 Smith called her at work and questioned her regarding D___'s new school. Id. She responded that she needed to contact her attorney, and she hung up. A few minutes later, Smith called again, questioned her about a car parked in her driveway the prior night, and asked her about D___'s whereabouts. Id. On this basis, Schrock concluded that Smith had been parked outside her house the night before. Id. When she told him again that she needed to contact her attorney, Smith responded "B__ch, I'm going to get D___ no matter what it takes!" Id. at 3. According to Schrock, when she responded, "Over my dead body you will," Smith replied in a threatening tone, "If I have to kill you, I'll kill you." Id. Schrock believed Smith was able and willing any time to carry out his threats to harm her. When she hung up the telephone, she was concerned for D___'s and her safety. Id. Following the incident, Schrock immediately went to the family violence unit of the Dallas Police Department and spoke with Detective Brasher, whom she did not know before. Id. She also provided a written statement. Id.
If true, these facts would easily establish probable cause to rest Smith for placing Schrock in fear of imminent serious bodily injury, a violation of § 22.07(a)(2) that is punishable as a Class B misdemeanor. But Smith has directly controverted Schrock's testimony and denies it in all material respects. See P. App. 2-6. Were this suit not barred by res judicata, his evidence would present a genuine issue of material fact that requires a trial.
Schrock objects to parts of Smith's evidence. See D. Rep. Br. at 1-3. The court either has not considered the evidence to which she objects or concludes that the objections lack merit because they are so broadly framed. The court therefore overrules the objections as moot or on the merits. Moreover, in view of the court's decision to dismiss this case based on res judicata, and the fact that no objection directly relates to that issue, the objections can be overruled as moot.
Smith also advances a general objection to any part of Schrock's affidavit wherein she attributes statements to third parties. See P. Resp. at 1. The court has not relied on hearsay in deciding any issue unfavorably to Smith and therefore overrules this objection as moot. Moreover, the objections are immaterial given the basis for the court's decision to dismiss this case based on the defense of res judicata.
C
Neither side has adequately briefed an issue that Schrock raises in one paragraph within the body of her argument that there was probable cause to arrest Smith. Preceded and followed by analysis of the probable cause issue, Schrock inserts the contention that she was not acting under color of law when she reported Smith's conduct to Detective Brasher. See D. Br. at 3-6 (probable cause argument) and 5 (state actor argument); see also D. Rep. Br. at 5 (reasserting that Schrock "was not acting under color of law when she reported this incident."). She maintains that she "Was not acting under her authority as a police officer but as a complainant in a criminal case." D. Br. at 5. Perhaps because of the unusual manner in which Schrock briefed this argument, Smith does not focus on this contention in his brief. His only response appears to be this single sentence: "An actor may misuse power that he possesses by virtue of state law even if his acts violate state law; what is important is that the Defendant was clothed with the authority of state law." P. Resp. at 12 (citations omitted).
The incomplete briefing does not address this issue sufficiently, and the court is unwilling to undertake the complete research that the parties are obligated to perform. At an introductory level, however, the court's examination of the law reveals these principles: (1) Normally, a person does not act under color of law merely because she is a state employee. See Thomas v. Pearl, 998 F.2d 447, 450 (7th Cir. 1993). (2) "It is beyond question that, when a private party gives testimony in open court in a criminal trial, that act is not performed `under color of law.'" Briscoe v. LaHue, 460 U.S. 325, 329-30 (1983) (footnote omitted). (3) Section 1983 liability based on misuse of power is limited to those instances in which a defendant is able to violate the plaintiff's rights because the person, although acting outside her authority, is clothed with state authority. See United States v. Classic, 313 U.S. 299, 326 (1941) ("Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law."); Bennett v. Pippin, 74 F.3d 578, 589 (5th Cir. 1996) (holding in suit by plaintiff alleging that Sheriff had raped her in her own home that district court did not err in finding that Sheriff had acted under color of law because, under facts of case, Sheriff had abused power that he held uniquely because of a state position) (citing Classic, 313 U.S. 299). (4) The color of law requirement can be met when someone who is not a state actor "has obtained significant aid from state officials." Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982).
A private person who conspires with someone who is acting under color of state law can be held liable under § 1983. See, e.g., Richardson v. Fleming, 651 F.2d 366, 371 (5th Cir. Unit A July 1981). Smith does not appear to rely on a conspiracy theory in his summary judgment response. He alleges in his complaint that "Schrock induced a friend and fellow police officer to seek a warrant for the Plaintiff's rest for the false charge of terroristic threat." Compl. ¶ 6. Notably, he does not allege that the two conspired, nor has he sued the "fellow police officer," as he did in Smith I.
As to the last principle, assuming arguendo that what Smith alleges about Schrock's conduct is true, it is arguable that state aid (the processes of the police department in resting Smith and of the courts in prosecuting him) was necessary to effect the scheme of bringing about Smith's false arrest and prosecution. Cf. Ruffalo by Ruffalo v. Civiletti, 702 F.2d 710, 717 (8th Cir. 1983) (holding that private party's conduct constituted government action because he was able to deprive his former wife of access to the couple's son only because of federal government action taken as part of witness Protection Program). Accordingly, at least on the incomplete briefing presented, the court holds that Schrock has not shown that she is entitled to summary judgment on the basis that she was not acting under color of law.
III
Schrock also argues that there was probable cause to prosecute Smith for the offense of making a terroristic threat. She posits in particular that there is no evidence that she acted maliciously in making her report to Detective Brasher. For the same reasons discussed supra at § II(B) — i.e., Smith's sworn denial of the material facts on which Schrock relies — there is a genuine issue of material fact whether Schrock is liable for malicious prosecution and, in particular, whether she acted maliciously. Were this case not bred by res judicata, it would be necessary for the trier of fact to resolve this issue.
IV
Schrock next argues that she is entitled to qualified immunity. She first contends that Smith's complaint is insufficient to plead a constitutional violation with particularity and specificity. See D. Br. at 7-10. Schrock next asserts that Smith cannot prove that his conduct was not objectively reasonable.
She advances this argument in the alternative, if it is assumed that she was acting under the color of law.
Although it is curious why Schrock is raising in a summary judgment motion a challenge to Smith's pleadings, this component of her motion is answered by the court's earlier ruling on her Fed.R.Civ.P. 12(b)(6) motion to dismiss, see Smith v. Schrock, Civil Action No. 3:00-CV-1346 (N.D. Tex. Dec. 6, 2000) (Fitzwater, J.).
As the court wrote in deciding that motion:
Smith alleges that Officer Schrock caused him to be falsely rested, illegally detained, and maliciously prosecuted for the offense of terroristic threat, which Smith contends Officer Schrock knew he had not committed. Smith asserts that Officer Schrock "invented the lie that [Smith] threatened to kill her on September 3, 1996 . . . [and] induced a friend and fellow police officer to seek a warrant for [Smith's] arrest for the false charge of terroristic threat." Compl. ¶ 6. Government officials performing discretionary functions are shielded from liability for civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "The doctrine of qualified immunity shields a police officer from liability for civil damages when a reasonable officer could have believed that the challenged conduct did not violate clearly established statutory or constitutional rights." Id. (quoting Husband v. Bryan, 946 F.2d 27, 30 (5th Cir. 1991), and Simpson v. Hines, 903 F.2d 400, 402 (5th Cir. 1990)). "Whether a government official is entitled to qualified immunity generally turns on the objective reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken." Id. (quoting Texas Faculty Ass'n v. University of Tex. at Dallas, 946 F.2d 379, 389 (5th Cir. 1991), and Anderson v. Creighton, 483 U.S. 635, 639 (1987)) (internal quotation marks omitted). Smith alleges that Officer Schrock concocted a story that Smith had threatened to kill her and, based on that lie, caused Smith to be rested, detained, and prosecuted for that crime. The Fourth and Fourteenth Amendments protect against illegal rests. Hand, 838 F.2d at 1427. Smith's allegations are sufficient to overcome a qualified immunity defense. See Young v. Biggers, 938 F.2d 565, 570 (5th Cir. 1991) ("a reasonable person . . . surely would realize that `framing' someone for a crime that he did not commit deprives that person of his constitutional rights."). In September 1996 a reasonable police officer would have known that she could not make up a story that a person had threatened to kill her and, based on that lie, cause the person to be rested, detained, and prosecuted for that crime. Accordingly, due to the very simple claim that Smith is asserting and the clarity of the law, Smith need not have made any more detailed or different allegations to meet the pleading requirements concerning the qualified immunity defense.Id., slip op. at 4-5.
As to the argument that Smith cannot show that Schrock's conduct was objectively unreasonable, in his response to Schrock's summary judgment motion, Smith has adduced evidence that she fabricated material elements of the charges against him for the improper purposes of embarrassing him, getting him fired from his job, and gaining an advantage in their pending divorce proceeding. See P. App. 2-6. If he proved these allegations at a trial, Schrock would not be entitled to qualified immunity because her conduct in framing him for a crime he did not commit could not have been objectively reasonable.
The court recognizes that the Fifth Circuit has held: "Ideally, the district court's order denying summary judgment based on qualified immunity explains what facts the plaintiff may be able to prove at trial, i.e. what particular facts the court assumed in denying summary judgment urged on the basis of qualified immunity. This facilitates appellate review by allowing this Court to focus on the aforementioned purely legal issues." Thompson v. Upshur County, TX, 245 F.3d 447, 456 (5th Cir. 2001). The court has not detailed the facts in this section of the opinion because Smith's relevant denials of Schrock's version of the events at issue are set out adequately in his affidavit. See P. App. 2-6.
Although qualified immunity "poses solely a question of law" for the court, see, e.g., Jefferson v. Ysleta Independent School District, 817 F.2d 303, 304 (5th Cir. 1987), the court must view the evidence favorably to Smith as the nonmovant, see Saucier. v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2156 (2001) ("A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry." (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991))). A trial is necessary when the defense turns on the facts of what occurred. See, e.g., Enlow v. Tishomingo County, Miss., 962 F.2d 501, 510 (5th Cir. 1992).
V A
Schrock maintains next that she is entitled to summary judgment based on the defense of res judicata. She posits that Smith's action is bred because he previously sued her for false rest and malicious prosecution in Smith I based on his rest pursuant to a warrant for aggravated sexual assault. Schrock contends the present case is based on the same claims and causes of action (false rest and malicious prosecution) as were alleged in that case.When the party who will have the burden of proof at trial concerning an affirmative defense seeks summary judgment on the basis of that defense, she "must establish `beyond peradventure all of the essential elements of the . . . defense.'" Bank One, Tex., NA. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
The doctrine of res judicata, or claim preclusion, bars litigation of any issue connected with a cause of action or defense that, in the use of diligence, a party might have tried or actually did try. See Ellis v. Amex Life Ins. Co., 211 F.3d 935, 938 n. 1 (5th Cir. 2000). Res judicata has four elements: (1) the parties must be the same in both cases; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same cause of action must be involved in both cases. See Travelers Ins. Co. v. St. Jude Hosp., 37 F.3d 193, 195 (5th Cir. 1994) (citing Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 559 (5th Cir. 1983) (en banc)). In determining whether the fourth element is satisfied, the court utilizes the transactional test of the Restatement (Second) of Judgments. Ellis, 211 F.3d at 938; In re Intelogic Trace, Inc., 200 F.3d 382, 386 n. 3 (5th Cir. 2000). The critical issue is not the relief requested or the theory asserted. The question is instead
whether [the] plaintiff bases the two actions on the same nucleus of operative facts. The rule is that res judicata "bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication, . . . not merely those that were adjudicated."In re Howe, 913 F.2d 1138, 1144 (5th Cir. 1990) (quoting Nilsen, 701 F.2d at 560).
B
Smith argues that he could not have advanced the instant claims in Smith I until June 28, 1998, when he was acquitted of the terroristic threat charge. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). The court agrees with this assertion as a general proposition. Cf. Rooding v. Peters, 92 F.3d 578, 582 (7th Cir. 1996) (holding under Illinois law that res judicata did not bar prisoner's § 1983-based damages claim where earlier-filed habeas mandamus action challenging duration of confinement could not have included damages claim due to requirements of Heck v. Humphrey). But in the context of the present case, his argument lacks force. Smith I was still pending on June 28, 1998. Judge Fish did not enter summary judgment against Smith until May 27, 1999. Smith makes no attempt in his brief to explain why he could not have included his present claims in Smith I via an amended pleading. He merely asserts in a conclusory manner that he could not have done so in view of Heck v. Humphrey. This overlooks the fact that the requirements of Heck v. Humphrey were satisfied while Smith I was still pending, almost 11 full months before it was dismissed.
C
With Heck v. Humphrey presenting no impediment, the controlling question becomes whether Schrock has established beyond peradventure that Smith I and the present case are based on the same nucleus of operative facts. This issue is conceptually challenging because, at a superficial level, there appear to be two ways of identifying the "nucleus." If the court analyzes this question according to the allegedly false allegations (and subsequent legal proceedings) on which each suit is based — the alleged sexual abuse of D___ in 1995 and the alleged terroristic threat against Schrock in 1996 — the two lawsuits appear to arise from discrete nuclei. One false charge involved one victim (D___) in 1995; the other pertained to a different victim (Schrock) in 1996. But this approach would be mistaken.
In Smith's view, these are not lawsuits about two different victims at two distinct times. According to Smith, Schrock's allegations are complete fabrications, concocted and pursued during the same contentious divorce case. The first occurred in October 1995, shortly after they separated in September 1995. The second occurred in September 1996, shortly before their divorce became final in November 1996. There is thus one victim (Smith) injured twice during the same transaction (the divorce case). When the court assesses the transaction question in the more relevant context of Smith's common theory of each case — i.e., Schrock falsely accused him of criminal offenses and used state legal processes to injure him so that he would be at a disadvantage during the couple's bitter divorce proceeding — it is apparent that both suits arise from the same nucleus of operative facts.
In his affidavit, Smith asserts that "[o]ther than my ex-wife having lied twice to gain my rest, there is nothing about the first lawsuit that would or should prevent me from bringing a second claim against her." P. App. 6. Even assuming that this assertion is not a legal conclusion, it illustrates why the two suits do arise from the same nucleus of operative facts. According to Smith, during the course of the same contentious divorce case, Schrock attempted repeatedly to injure him in order to gain the upper hand. He is thus complaining about alleged lies and abuses of legal process for a common purpose that are part of one transaction (the divorce).
The second approach to ascertaining the nucleus is the relevant one because the gravamen of Smith's complaint is that Schrock twice lied about him in the context of the same bitter divorce, for virtually identical reasons, using a similar modus operandi. See Southmark Props. v. Charles House Corp., 742 F.2d 862, 871 (5th Cir. 1984) ("Although appellants' present claim alleges various other acts of wrongdoing by Southmark, all of those acts are alleged to have produced or resulted from, and were integrally related to, the sale of the property to Southmark. They all involved a `common nucleus of operative facts.'"); Agrilectric Power Partners, Ltd. v. Gen. Elec. Co., 20 F.3d 663, 665 (5th Cir. 1994) (footnote omitted) ("If the factual scenario of the two actions parallel, the same cause of action is involved in both."). It does not matter that her legal theories differed in each instance. The nucleus of facts, not the theory of recovery, defines the claim. Howe, 913 F.2d at 1144 n. 10; see NY. Life Ins. Co. v. Gillispie, 203 F.3d 384, 387 (5th Cir. 2000). "The substantive theories advanced, forms of relief requested, types of rights asserted, and variations in evidence needed do not inform this inquiry." Agrilectric, 20 F.3d at 665. And even if the two alleged lies are not considered part of one transaction (the divorce), the lies themselves at least constitute a series of transactions. See Howe, 913 F.2d at 1144 n. 10 (noting that under transactional test, same action includes all remedial rights of plaintiff against defendant growing out of relevant transaction or series of transactions).
If res judicata does not bar cases like this one, the prospect for multiple lawsuits arising from the same protracted divorce proceeding will be limited only by the willingness of dueling parties not to sue each other for individual, odious acts that are in reality part of a continuum of enmity. The doctrine of res judicata imposes a structural limitation in a context where human restraint may not be found. Accordingly, the court holds that Schrock is entitled to summary judgment on the basis that this suit is bred by res judicata.
That the court declined to dismiss this case based on res judicata in the context of Schrock's Rule 12(b)(6) motion is not inconsistent with its present decision. In the Rule 12(b)(6) context, the question presented was whether, based on what clearly appeared on the face of Smith's complaint, under the highly deferential standard of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), and viewing the allegations of Smith's complaint in the light most favorable to him, the court could say that Smith's suit is bred by res judicata. Under the standards of Rule 56, the court can now say that it is barred.
* * *
For the reasons set out, the court grants Schrock's January 2, 2002 motion for summary judgment and dismisses this action by judgment filed today.SO ORDERED.