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Sherron L. Lewis, Jr v. John W. Suthers

June 10, 2011

SHERRON L. LEWIS, JR., PLAINTIFF,
v.
JOHN W. SUTHERS, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY, ANDREW P. MCCALLIN, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY, AND ERIC R. NEUSCH, INDIVIDUALLY AND IN HIS REPRESENTATIVE CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Pro se Plaintiff Sherron L. Lewis, Jr. ("Plaintiff" or "Lewis"), brings this action against Defendants John W. Suthers, individually and in his representative capacity as Attorney General of Colorado, Andrew P. McCallin, individually and in his representative capacity as First Assistant Attorney General of Colorado, and Erik R. Neusch, individually and in his representative capacity as Assistant Attorney General of Colorado. (R. 1.) Plaintiff filed this lawsuit in response to a complaint that Defendants filed against him on July 26, 2010, in the District Court for Jefferson County, Colorado, under the Colorado Consumer Protection Act. (Id. at 7-16.) In bringing the Colorado lawsuit, Defendants alleged that Lewis had improperly offered mortgage-foreclosure-legal assistance to Colorado citizens and had engaged in the unlicensed practice of law. (Id. at 7-8.)

In his Complaint, Lewis vigorously disputes the accuracy of the allegations that Defendants brought against him in the state-court action in Colorado. (R. 1 at passim.) He brings claims under 42 U.S.C. §§ 1981, 1982, 1983, and 1985, 18 U.S.C. §§ 241 and 1951, 11 U.S.C. § 362, for civil conspiracy, and for extreme and outrageous conduct, seeking injunctive relief and damages. (Id. at 16-27.) This is the second complaint that Lewis has filed against Defendants based on the same alleged facts. On September 28, 2010, this Court dismissed Lewis's lawsuit on the ground that Defendants have absolute immunity under 28 U.S.C. § 1915(e)(2)(B)(iii) and because the Eleventh Amendment bars lawsuits against a state for damages. Lewis v. Suthers, No. 10-CV-6101, 2010 WL 3842701, at *1 (N.D. Ill. Sept. 28, 2010). The Court also observed that the case appeared "to be an attempt to bring the Colorado enforcement action in federal district court" and so the Court dismissed the lawsuit "in its entirety[.]" Id. at 2.

Defendants have filed a motion to dismiss the instant lawsuit, on a number of grounds that include the Rooker-Feldman doctrine, the Younger doctrine, prosecutorial immunity, the Eleventh Amendment, improper venue, the doctrine of res judicata, and for failure to state a claim. (R. 20.) The Court grants Defendants' motion to dismiss, with prejudice.

DISCUSSION

I. The Doctrine of Res Judicata Bars Lewis's Complaint Against Defendants in their Official Capacities The Court previously dismissed Lewis's lawsuit against Defendants under the Eleventh Amendment. Lewis, 2010 WL 3842701, at *1-2. The Court noted that, "[u]nder the Eleventh Amendment[,] . . . individuals cannot bring lawsuits seeking damages against a State based on sovereign immunity." Id. at 1. Observing that "the individual Defendants represented the State of Colorado," the Court found that Lewis's claims were not actionable. Id. The Court will not revisit that determination, and so it dismisses Lewis's claims against Defendants in their official capacities.

As the Seventh Circuit recently observed, "[r]es judicata prohibits parties 'from relitigating issues that were or could have been raised' in a previous action in which there was final judgment on the merits." Johnson v. Cypress Hill, -- F.3d --, 2011 WL 2138085, at *5 (7th Cir. June 1, 2011) (quoting Highway J Citizens Grp. v. U.S. Dep't Transp., 456 F.3d 734, 741 (7th Cir. 2006)). Res judicata applies if there is "(1) an identity of the parties or their privies; (2) an identity of the cause of action; and (3) a final judgment on the merits in the earlier action."

Id. (quoting Prochotsky v. Baker & McKenzie, 966 F.2d 333, 334 (7th Cir. 1992)). Lewis's present lawsuit against Defendants in their official capacities satisfies all of these conditions.

Lewis's earlier lawsuit involved precisely the same parties. Cf. R. 1 with Lewis, 2010 WL 3842701, at *1-2. Although the Complaint in this case differs in some modest respects from the earlier-filed complaint in this Court, they are materially identical, involving a common nucleus of operative fact. Specifically, both complaints allege facts emanating from Defendants' state-court action against Lewis under the Colorado Consumer Protection Act. Therefore, there is an identity of the cause of action. Johnson, 2011 WL 2138085, at *5 ("Johnson asserts that the claims are not the same because the original action was based on copyright infringement, whereas Johnson II is based on state claims of unfair competition and misappropriation. But . . . 'two claims are one for purposes of res judicata if they are based on the same, or nearly the same, factual allegations.'") (quoting Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 822 (7th Cir. 2006)).

The final question is whether this Court's dismissal of Lewis's previously filed lawsuit against Defendants constituted a final judgment on the merits. There is some authority that suggests that a court's dismissal on Eleventh Amendment grounds may constitute a final judgment on the merits. See Andrews v. Daw, 201 F.3d 521, 524 n.2 (4th Cir. 2000) ("Andrews does not contest that the dismissal of his prior suit on Eleventh Amendment immunity grounds is a final judgment on the merits. . . . For this case, we assume without deciding that a dismissal on Eleventh Amendment immunity grounds is a final judgment on the merits for purposes of res judicata"); Lommen v. City of E. Grand Forks, 97 F.3d 272, 275 (8th Cir. 1996) (applying Minnesota law of res judicata, which it read as recognizing that "a final adjudication on the merits existed where summary judgment had been granted in a prior suit against the plaintiffs because the defendants were entitled to quasi-judicial immunity."); Otis v. Ryan, No. 02-CV-6397, 2003 WL 21267106, at *4 (N.D. Ill. May 28, 2003) ("The third requirement, final judgment on the merits, is also satisfied because a final judgment on the merits was rendered in Otis I. In that case, the defendant moved to dismiss the complaint for lack of subject matter jurisdiction because plaintiff's claim was barred by the Eleventh Amendment . . . . [T]he District Court entered a final order dismissing plaintiff's complaint for lack of subject matter jurisdiction."); see also Daye v. Brannon, No. 00-CV-592, 2001 WL 34664089, at *4 (M.D.N.C. May 22, 2001); Stewart v. Hunt, 598 F. Supp. 1342, 1350 n.11 (D.C.N.C. 1984) ("Had it been proven to the court's satisfaction that sovereign immunity was indeed the basis of the state court decision, this litigation might well have been barred by claim preclusion since a dismissal premised upon sovereign immunity constitutes a final judgment on the merits."); Warwick Corp. v. Maryland Dep't of Transp., 573 F. Supp. 1011, 1014 (D.C. Md. 1983) ("[A] judgment granting dismissal on the grounds of sovereign immunity is a final judgment on the merits, commanding res judicata effect.").

Despite this case law, it is not clear that a federal court's dismissal of a lawsuit on Eleventh Amendment grounds constitutes a final judgment on the merits. See, e.g., Adams v. Andrews, No. 99-CV-3316, 1999 WL 544727, at *2 (S.D.N.Y. July 27, 1999) ("The case law has some divergence on whether a dismissal for sovereign immunity under the Eleventh Amendment constitutes a final judgment on the merits, so it is not clear that res judicata is applicable here.") (quotation omitted). Federal Rule of Civil Procedure 41 provides that a dismissal "for lack of jurisdiction" does not operate as an adjudication on the merits. Fed. R. Civ. P. 41 (b). If a dismissal under the Eleventh Amendment is jurisdictional, therefore, it does not constitute such an adjudication.

A number of courts have characterized a dismissal based on the Eleventh Amendment as jurisdictional-specifically, they regard it as a dismissal for lack of subject-matter jurisdiction. See, e.g., State Emps. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 76 n.2 (2d Cir. 2007) (noting a "lack of subject matter jurisdiction under the Eleventh Amendment" and observing that "[t]here is no final judgment from which plaintiffs can appeal this decision"); Republic of Para. v. Allen, 134 F.3d 622, 626 (4th Cir.), cert. denied 523 U.S. 371 (1998); Seaborn v. Fla., 143 F.3d 1405, 1407 (11th Cir. 1998) (noting "the jurisdictional nature of the Eleventh Amendment"); Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996) ("Eleventh Amendment sovereign immunity deprives a federal court of jurisdiction to hear a suit against a state."); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989) ("The Eleventh Amendment presents a jurisdictional limit on federal courts in civil rights cases against states and their employees.").

The Seventh Circuit has made a similar characterization. See Doe v. Univ. of Ill., 138 F.3d 653, 656 n.2 (7th Cir. 1998) ("The University's Eleventh Amendment immunity defense is a question of the federal courts' subject matter jurisdiction over the action."), vacated on other grounds by Bd. of Trs. of Univ. of Ill. v. Doe, 526 U.S. 1142 (1999); Johnson v. Ill. Commerce Comm'n, 176 Fed. App'x 662, 663 (7th Cir. 2006) (affirming district-court holding that the court lacked subject-matter jurisdiction over an Illinois ...


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