UNITED STATES DISTRICT COURT October 29, 2021 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION
QUIRINO TORRES, § § Plaintiff, § VS. § CIVIL ACTION NO. 2:21-CV-138 § MASON JOHNSON, et al, § § Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION TO DISMISS CASE
Pending before the Court are Magistrate Judge Julie K. Hampton’s Memorandum and Recommendation (M&R) and Petitioner Torres’s objections. D.E. 8; D.E. 11. The M&R recommends that the Court dismiss with prejudice Torres’s claims “as malicious and/or for failure to state a claim.” D.E. 8, pp. 1, 6 (citing 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1)). The M&R further recommends that the dismissal count as a “strike.” D.E. 8, pp. 1, 6 (citing 28 U.S.C. §§ 1915(g)). STANDARD OF REVIEW The district court conducts a de novo review of any part of the Magistrate Judge’s disposition that has been properly objected to. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). As to any portion for which no objection is filed, a district court reviews for clearly erroneous factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam). DISCUSSION I. Preclusion Doctrines The M&R recommends dismissing Torres’s present action based on preclusion
doctrines (res judicata and collateral estoppel). D.E. 8, p. 6. The M&R describes how the present action is essentially duplicative of Torres’s 2019 action, which this Court dismissed with prejudice. Torres v. Bee Cnty. Jail (Torres I), No. 2:19-CV-278, 2019 WL 7833969 (S.D. Tex. Dec. 30, 2019), R. & R. adopted, No. 2:19-CV-278, 2020 WL 533119 (S.D. Tex. Feb. 3, 2020). In his objection to the M&R, Torres first asserts that new “actual and factual evidence” should prevent the Court from dismissing his case. D.E. 11.
Claim Preclusion (Res Judicata). Claim preclusion “precludes the relitigation of claims which have been fully adjudicated or arise from the same subject matter, and that could have been litigated in the prior action.” Palmer v. Fed. Home Loan Mortg. Corp., No. 4:13-cv-430, 2013 WL 2367794, at *2 (N.D. Tex. May 30, 2013) (citing Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th Cir. 1983)). A petitioner cannot “merely assert a
new fact to sidestep the res judicata roadblock.” Phalanx Grp. Int’l v. Critical Sols. Int’l, No. 3:19-cv-3002, 2020 WL 2114818, at *8 (N.D. Tex. May 4, 2020) (citations and punctuation omitted); see also Cervantes v. Ocwen Loan Servicing, No. 5:19-cv-7, 2019 WL 6003129, at *5 (S.D. Tex. Aug. 28, 2019) (“Simply alleging additional facts . . . does not survive the defense of res judicata.”).
“In order for new facts to constitute a new cause of action and thus allow a claim to be relitigated, those facts must be both significant and create new legal conditions.” Wilson v. Lynaugh, 878 F.2d 846, 851 (5th Cir. 1989). “If simply submitting new evidence rendered a prior decision factually distinct, res judicata would cease to exist, and the application process would continue ad infinitum.” Torres v. Shalala, 48 F.3d 887, 894 (5th Cir. 1995). As the Fifth Circuit has stated, “Plaintiffs are not given a second chance to
prove their claims; they must do it right the first time.” Cervantes, 749 F. App’x at 245. Issue Preclusion (Collateral Estoppel). Similarly, issue preclusion promotes the interests of judicial economy by preventing a party from relitigating a particular fact issue the party has already litigated and lost in an earlier suit. San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323, 336 (2005). Moreover, the Fifth Circuit has also
explained that “under federal principles a party who has had a full and fair opportunity to litigate an issue decided in a prior suit may be precluded from relitigating that issue in a subsequent action, even though the subsequent adversary was not a party to the prior litigation.” Johnson v. United States, 576 F.2d 606, 614 (5th Cir. 1978). Like claim preclusion, issue preclusion cannot “be defeated by seeking rescue from a mistaken trial
strategy, by undertaking an improved evidentiary presentation, or by arguing that the first court should not have decided the issue on motion to dismiss.” Wright & Miller, Issue Preclusion—Actual Litigation, 18 Fed. Prac. & Proc. § 4419 (3d ed. 2021). Application. The M&R sufficiently explains how Torres’s claims satisfy the elements for claim and issue preclusion. D.E. 8, pp. 4–6. Although Torres lists as new
evidence a nurse practitioner’s statement regarding his illness and a guard’s willingness to testify, the Court finds the proposed testimony cumulative of evidence presented in Torres I. 2019 WL 7833969, at *3–4. Torres does not present a significant change in fact or law supporting a new cause of action to be litigated. D.E. 11; see also Wilson, 878 F.2d at 851. The M&R correctly concluded that the present action is essentially duplicative of Torres I and is barred under preclusion doctrines. D.E. 8, p. 6. Torres has failed to show that the M&R’s analysis is erroneous, and his objection is OVERRULED. Therefore, as
the M&R recommends, the Court DISMISSES WITH PREJUDICE Torres’s in forma pauperis (IFP) complaint for failure to state a claim for relief. D.E. 8, p. 1 (citing 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b)(1)). II. Strike Based on Reason for Dismissal Torres objects to the Court applying a strike because “Bee County does and will not
afford the legal material for [him] to have known a possible strike could incur.” D.E. 11. But Torres’s ignorance of this filing’s consequences does not relieve him of those consequences. See Lomax v. Ortiz–Marquez, 140 S. Ct. 1721, 1726 (2020). Congress enacted the Prisoner Litigation Reform Act (PLRA) to deter a perceived “flood of nonmeritorious claims” filed by prisoners. Jones v. Bock, 549 U.S. 199, 203
(2007). The statute was therefore designed “to cabin not only abusive but also simply meritless prisoner suits.” Lomax, 140 S. Ct. at 1726. To limit nonmeritorious filings, Congress amended the statute to include the following “three-strikes” provision: In no event shall a prisoner bring a civil action [IFP] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C.
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UNITED STATES DISTRICT COURT October 29, 2021 SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk CORPUS CHRISTI DIVISION
QUIRINO TORRES, § § Plaintiff, § VS. § CIVIL ACTION NO. 2:21-CV-138 § MASON JOHNSON, et al, § § Defendants. §
ORDER ADOPTING MEMORANDUM & RECOMMENDATION TO DISMISS CASE
Pending before the Court are Magistrate Judge Julie K. Hampton’s Memorandum and Recommendation (M&R) and Petitioner Torres’s objections. D.E. 8; D.E. 11. The M&R recommends that the Court dismiss with prejudice Torres’s claims “as malicious and/or for failure to state a claim.” D.E. 8, pp. 1, 6 (citing 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1)). The M&R further recommends that the dismissal count as a “strike.” D.E. 8, pp. 1, 6 (citing 28 U.S.C. §§ 1915(g)). STANDARD OF REVIEW The district court conducts a de novo review of any part of the Magistrate Judge’s disposition that has been properly objected to. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). As to any portion for which no objection is filed, a district court reviews for clearly erroneous factual findings and conclusions of law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam). DISCUSSION I. Preclusion Doctrines The M&R recommends dismissing Torres’s present action based on preclusion
doctrines (res judicata and collateral estoppel). D.E. 8, p. 6. The M&R describes how the present action is essentially duplicative of Torres’s 2019 action, which this Court dismissed with prejudice. Torres v. Bee Cnty. Jail (Torres I), No. 2:19-CV-278, 2019 WL 7833969 (S.D. Tex. Dec. 30, 2019), R. & R. adopted, No. 2:19-CV-278, 2020 WL 533119 (S.D. Tex. Feb. 3, 2020). In his objection to the M&R, Torres first asserts that new “actual and factual evidence” should prevent the Court from dismissing his case. D.E. 11.
Claim Preclusion (Res Judicata). Claim preclusion “precludes the relitigation of claims which have been fully adjudicated or arise from the same subject matter, and that could have been litigated in the prior action.” Palmer v. Fed. Home Loan Mortg. Corp., No. 4:13-cv-430, 2013 WL 2367794, at *2 (N.D. Tex. May 30, 2013) (citing Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th Cir. 1983)). A petitioner cannot “merely assert a
new fact to sidestep the res judicata roadblock.” Phalanx Grp. Int’l v. Critical Sols. Int’l, No. 3:19-cv-3002, 2020 WL 2114818, at *8 (N.D. Tex. May 4, 2020) (citations and punctuation omitted); see also Cervantes v. Ocwen Loan Servicing, No. 5:19-cv-7, 2019 WL 6003129, at *5 (S.D. Tex. Aug. 28, 2019) (“Simply alleging additional facts . . . does not survive the defense of res judicata.”).
“In order for new facts to constitute a new cause of action and thus allow a claim to be relitigated, those facts must be both significant and create new legal conditions.” Wilson v. Lynaugh, 878 F.2d 846, 851 (5th Cir. 1989). “If simply submitting new evidence rendered a prior decision factually distinct, res judicata would cease to exist, and the application process would continue ad infinitum.” Torres v. Shalala, 48 F.3d 887, 894 (5th Cir. 1995). As the Fifth Circuit has stated, “Plaintiffs are not given a second chance to
prove their claims; they must do it right the first time.” Cervantes, 749 F. App’x at 245. Issue Preclusion (Collateral Estoppel). Similarly, issue preclusion promotes the interests of judicial economy by preventing a party from relitigating a particular fact issue the party has already litigated and lost in an earlier suit. San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323, 336 (2005). Moreover, the Fifth Circuit has also
explained that “under federal principles a party who has had a full and fair opportunity to litigate an issue decided in a prior suit may be precluded from relitigating that issue in a subsequent action, even though the subsequent adversary was not a party to the prior litigation.” Johnson v. United States, 576 F.2d 606, 614 (5th Cir. 1978). Like claim preclusion, issue preclusion cannot “be defeated by seeking rescue from a mistaken trial
strategy, by undertaking an improved evidentiary presentation, or by arguing that the first court should not have decided the issue on motion to dismiss.” Wright & Miller, Issue Preclusion—Actual Litigation, 18 Fed. Prac. & Proc. § 4419 (3d ed. 2021). Application. The M&R sufficiently explains how Torres’s claims satisfy the elements for claim and issue preclusion. D.E. 8, pp. 4–6. Although Torres lists as new
evidence a nurse practitioner’s statement regarding his illness and a guard’s willingness to testify, the Court finds the proposed testimony cumulative of evidence presented in Torres I. 2019 WL 7833969, at *3–4. Torres does not present a significant change in fact or law supporting a new cause of action to be litigated. D.E. 11; see also Wilson, 878 F.2d at 851. The M&R correctly concluded that the present action is essentially duplicative of Torres I and is barred under preclusion doctrines. D.E. 8, p. 6. Torres has failed to show that the M&R’s analysis is erroneous, and his objection is OVERRULED. Therefore, as
the M&R recommends, the Court DISMISSES WITH PREJUDICE Torres’s in forma pauperis (IFP) complaint for failure to state a claim for relief. D.E. 8, p. 1 (citing 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b)(1)). II. Strike Based on Reason for Dismissal Torres objects to the Court applying a strike because “Bee County does and will not
afford the legal material for [him] to have known a possible strike could incur.” D.E. 11. But Torres’s ignorance of this filing’s consequences does not relieve him of those consequences. See Lomax v. Ortiz–Marquez, 140 S. Ct. 1721, 1726 (2020). Congress enacted the Prisoner Litigation Reform Act (PLRA) to deter a perceived “flood of nonmeritorious claims” filed by prisoners. Jones v. Bock, 549 U.S. 199, 203
(2007). The statute was therefore designed “to cabin not only abusive but also simply meritless prisoner suits.” Lomax, 140 S. Ct. at 1726. To limit nonmeritorious filings, Congress amended the statute to include the following “three-strikes” provision: In no event shall a prisoner bring a civil action [IFP] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). The text of the statute is plain and focuses only on the grounds for dismissal. See Lomax, 140 S. Ct. at 1726. The dismissal in this case counts as a strike because the Court dismisses the case for failure to state a claim for relief. Torres has supplied no reason that this assessment of his claim is incorrect. His objection is OVERRULED. CONCLUSION Having reviewed the findings of fact, conclusions of law, and recommendations set forth in the Magistrate Judge’s M&R, as well as Torres’s objections, and all other relevant documents in the record, and having made a de novo disposition of the portions of the Magistrate Judge’s M&R to which objections were specifically directed, the Court OVERRULES Torres’s objections and ADOPTS as its own the findings and conclusions of the Magistrate Judge. Accordingly, this action is DISMISSED WITH PREJUDICE. It is further ORDERED that this dismissal count as a “strike” for purposes of 28 U.S.C. § 1915(g) and that the Clerk of Court forward a copy of this Order and the underlying M&R to the Manager of the Three Strikes List for the Southern District of Texas at Three_Strikes @txs.uscourts.gov. ORDERED this 29th day of October, 2021.
UNITED STATES DISTRICT JUDGE