Petition for Writ of Certiorari — Christopher Everson, Petitioner v. John Armstrong, et al.

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Case 16-3381, Document 63-1, 09/08/2017, 2119723, Pagel of 4

16-3381

Everson v. Armstrong ci al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,

on the 8th day of September, two thousand seventeen.

PRESENT:

BARRINGTON D. PARKER,

SUSAN L. CARNEY,

Circuit Judges.

TIMOTHY C. STANCEU,

ChiefJudge, U.S. Court of Intl Trade. *

CHRISTOPHER EVERSON,

PlaintffAppellant,

No. 16-3381

JOHN ARMSTRONG, OFFICIAL AND INDIVIDUAL CAPACITY,

Scorr SEMPLE, COMMISSIONER OF CORRECTION,

OFFICIAL AND INDIVIDUAL CAPACITY,

Defendants-Appellees.

FOR APPELLANT:

Christopher Everson, pro se, Hamden, CT.

Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.

Case 16-3381, Document 63-1, 09/08/2017, 2119723, Page2 of 4

AMICUS CURIAE:

Carletha S.P. Texidor, Assistant Attorney

General, Office of the Connecticut

Attorney General, Hartford, CT.

Appeal from a judgment of the United States District Court for the District of

Connecticut (Chatigny, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court entered on

September 7, 2016, is AFFIRMED.

Appellant Christopher Everson appeals from a judgment entered after the district

court sna sponte dismissed his suit pursuant to 28 U.S.C. § 1915(e)(2). We assume the parties'

familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, to which we refer only as necessary to explain our decision to affirm.'

We review de novo a district court's sua sponte dismissal under § 1915(e)(2). Giano P.

Goord, 250 F.3d 146, 149-50 (2d Cir. 2001). We conclude that the district court properly

dismissed Everson's complaint on claim-preclusion grounds. Monahan u. N.Y C. Dept. of Corr.,

214 F.3d 275, 285 (2d Cir. 2000) (A claim is precluded when "(1) the previous action

involved an adjudication on the merits; (2) the previous action involved the plaintiffs or

those in privity with them; [and] (3) the claims asserted in the subsequent action were, or

could have been, raised in the prior action."). First, Everson's 2004 action for damages under

42 U.S.C. § 1983 was resolved on the merits when the district court entered summary

judgment for defendants in 2009. Everson v. Comm'r of Corr., No. 04-cv-387 (Dkt. Nos. 48,

131); see also Beck v. Levering,947 F.2d 639, 642 (2d Cir. 1991). Second, with the exception of

Commissioner Scott Semple, now sued in his individual capacity, the 2004 action and the

I The named defendants were never served and, therefore, are not parties to this appeal. We directed the

Connecticut Attorney General's Office to file a brief as amicus curiae in support of defendants' position.

Case 16-3381, Document 63-1, 09/08/2017, 2119723, Page3 of 4

current action involve the same named parties or those in privity with them. Third, in both

the 2004 action and the current action, Everson asserts claims under § 1983 based on his

allegedly discriminatory firing in 2001. Therefore, the district court properly determined that

the earlier dismissal of the 2004 action precludes Everson from pursuing the present claims

against the same parties.

Dismissal of Everson's claim against Semple also was proper. The district court

dismissed this claim on claim-preclusion grounds even though it could have been argued that

Semple was not in privity with the plaintiffs in the 2004 action. We need not consider that

issue because the claim, even were it not so precluded, would be time-barred. See Lounsbuy v.

Jeffries, 25 F.3d 131, 133-34 (2d Cir. 1994). Moreover, to the extent Everson seeks in the

current action to hold Semple liable in his individual capacity as well as in his official

capacity, he fails to allege any facts to support an inference that Semple was personally

involved in the 2001 events giving rise to his claim. See, e.g., K &A Radiologic Tech. Sews., Inc.

v. Comm'r of Dep't of Health of State ofNY, 189 F.3d 273, 278-79 (2d Cir. 1999) (stating that

"[p]ersonal involvement of the defendant in the alleged deprivation is a prerequisite to

recovery of damages under § 1983").

Finally, Everson invokes this Court's mandamus jurisdiction, seeking an order

directing the district court to revisit its 2009 summary judgment ruling. We deny the

requested relief. Everson has already had the opportunity to appeal the 2009 ruling, and

mandamus "[may] not be used as a substitute for the regular appeals process." See, e.g., Chenej'

p. U.S. Dist. Coiirtfor D. C, 542 U.S. 367, 380-81 (2004) (citation omitted).

Case 16-3381, Document 63-1, 09/08/2017, 2119723, Page4 of 4

We have considered Everson's remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the district court's judgment.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court

Case 16-3381, Document 68, 10/25/2017, 2156621, Pagel of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

25th

day of October, two thousand seventeen.

Christopher Everson,

Plaintiff- Appellant,

ORDER

Docket No: 16-3381

John Armstrong, Official and Individual Capacity, Scott

Semple, Commissioner of Correction, Official and

Individual Capacity,

Defendants Appellees.

Appellant, Christopher Everson, filed a petition for panel rehearing, or, in the alternative,

for rehearing en banc. The panel that determined the appeal has considered the request for panel

rehearing, and the active members of the Court have considered the request for rehearing en banc.

IT IS HEREBY ORDERED that the petition is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

Case 3:16-cv-00077-RNC Document 13 Filed 09/07/16 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CHRISTOPHER EVERSON,

Plaintiff,

CASE NO. 3:16CV77 (RNC)

SCOTT SEMPLE, Commissioner of

Correction, Official and Individual

Capacity, and JOHN ARMSTRONG, Official

and Individual Capacity,

Defendants.

JUDGMENT

This action having come on for consideration of the paintiffs motion for leave to proceed

in forma paueris dkt. # [2], and the plaintiff's motion for appointment of counsel

dkt. # [3] before the Honorable Robert N. Chatigny, United States District Judge,

and, District Judge Robert N. Chatigny referred the matter to the Honorable Judge Donna F.

Martinez, United States Magistrate Judge and,

The Honorable Donna F. Martinez, US Magistrate Judge having considered the full

record of the case including applicable principles of law, and having filed a recommended

ruling dkt. # [10] granting the plaintiff's motion to proceed in forma Daureris, denying his motion

for appointment of counsel and recommending that his complaint be dismissed without

prejudice pursuant to 28 U.S.C. § 1915 (e) (2)(B). The Court having approved and adopted over

objection; it is hereby

ORDERED, ADJUDGED AND DECREED that this case be dismissed.

Dated at Hartford, Connecticut, this 7th day of September, 2016.

ROBIN D. TABORA, Clerk

Is! TG

Terri Glynn

Deputy Clerk

Case 3:16-cv-00077-RNC Document 13 Filed 09/07/16 Page 2 of 2

EOD: 9/7/16

Case 3:16-cv-00077-RNC Document 10 Filed 08/03/16 Page 1 of 5

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CHRISTOPHER EVERSON,

Plaintiff,

CASE NO. 3:16cv77(RNC)

SCOTT SEMPLE, ET AL.

Defendants.

RECOMMENDED RULING

Plaintiff, Christopher Everson, brings this employment

discrimination action against defendants Scott Semple and John

Armstrong--the Commissioner and former Commissioner of the

Department of Correction ("DOC"), respectively. Pending before

the court is plaintiff's motion for leave to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915 (doc. #2) as well as his

motion for appointment of counsel.' (Doc. #3.) Based on

plaintiff's financial affidavit, the motion to proceed in forma

pauperis is GRANTED. However, I recommend that his complaint be

dismissed without prejudice pursuant to 28 U.S.C. §

1915(e) (2) (B). His motion for appointment of counsel is DENIED.

Legal Standard

The same statute that authorizes the court to grant in

forma pauperis status to a plaintiff also contains a provision

'U.S. District Judge Robert N. Chatigny referred the pending

motions to me on June 15, 2016. (Doc. #8.)

Case 3:16-cv-00077-RNC Document 10 Filed 08/03/16 Page 2 of 5

that protects against abuses of this privilege. Subsection (e)

provides that the court "shall dismiss the case at any time if

the court determines that

the action

(i) is

frivolous or malicious; (ii) fails to state a claim upon which

relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief." 28 U.S.C. §

1915(e) (2) (B); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

II. Discussion

Plaintiff's complaint appears to challenge the court's

February 4, 2009 judgment against him in an earlier lawsuit he

filed in 2004. See Everson v. Cornm'r of Correction, Docket No.

04-cv-387 (RNC) (D. Conn. Feb. 4, 2009)

Plaintiff pleads the

same underlying facts as he did in the 2004 case. He was

arrested in October and November 2000, but the charges later

were dismissed. Immediately following both arrests, plaintiff

alleges that his employer, the Department of Correction ("DOC"),

"began its employee arrest procedure," with which plaintiff

maintains he cooperated fully. Nonetheless, in March 2001, the

DOC terminated plaintiff's employment. In April 2004, he filed

a complaint with this court pursuant to 42 U.S.C. § 1983,

alleging employment discrimination on the basis of his race. In

February 2009, Judge Chatigny granted summary judgment in favor

of defendants. Plaintiff appealed to the Second Circuit, which

dismissed his appeal for failure to pay the filing fee. He

Case 3:16-cv-00077-RNC Document 10 Filed 08/03/16 Page 3 of 5

filed a motion to reopen the case, which was denied. Plaintiff

filed a petition for a writ of certiorari, which the United

States Supreme Court denied in November 2010.

"Under the doctrine of res judicata, or claim preclusion,

[a] final adjudication on the merits of an action precludes the

parties or their privies from relitigating issues that were or

could have been raised in that action." St. Pierre v. Dyer, 208

F.3d 394, 399 (2d Cir. 2000) (internal quotation marks omitted)

"Once a final judgment has been entered on the merits of the

case, that judgment will bar any subsequent litigation by the

same parties or those in privity with them concerning the

transactions out of which the first action arose

The

doctrine of res judicata mandates the sua sponte dismissal of

the instant action." Wasser v. Battista, No. 12-CV-2455

(RRM) (LB) , 2012 WL 1901957, at *2 (E.D.N.Y. May 23, 2012)

Plaintiff's attempt to relitigate claims that already were

decided by this court is barred by thedoctrine of res judicata

and thus, his complaint should be dismissed. Eze v. Scott, No.

10-CV-1017, 2011 WL 4383140, at *4 (W.D.N.Y. Sept. 14, 2011)

("[R]epetitious litigation of virtually identical causes of

action is subject to dismissal under 28 U.S.C. § 1915[e].")

(internal quotation marks omitted)

Turning to plaintiff's request for appointment of counsel,

a plaintiff in a civil case is not entitled to appointment of a

Case 3:16-cv-00077-RNC Document 10 Filed 08/03/16 Page 4 of 5

free lawyer on request and the Second Circuit repeatedly has

cautioned district courts against the routine appointment of

counsel. See, e.g., Hendricks v. Coughlin, 114 F.3d 390, 393

(2d Cir. 1997); Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d

Cir. 1989)

Because volunteer-lawyer time is in short supply, a

plaintiff seeking appointment of a free lawyer must show first

that he "sought counsel and has been unable to obtain it."

McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d

121, 123 (2d Cir. 1988)

If the plaintiff has been unable to

obtain counsel, he must then demonstrate that his complaint

passes the test of "likely merit." Cooper at 173. This

standard requires a plaintiff to show that the claims in the

complaint have a sufficient basis to justify appointing a

volunteer lawyer to pursue them. In light of my recommendation

to dismiss plaintiff's complaint on res judicata grounds,

plaintiff's motion for appointment of counsel is DENIED.

III.

Conclusion

For these reasons, plaintiff's motion to proceed in forma

pauperis (doc. #2) is GRANTED, but I recommend that his

complaint be dismissed without prejudice. Plaintiff's motion

for appointment of counsel (doc. #3) is DENIED.

Any party may seek the district court's review of this

recommendation. See 28 U.S.C. § 636(b) (written objections to

proposed findings and recommendations must be filed within

Case 3:16-cv-00077-RNC Document 10 Filed 08/03/16 Page 5 of 5

fourteen days after service of same); Fed. R. Civ. P. 6(a), 6(d)

& 72; Thomas v. Am, 474 U.S. 140, 155 (1985); Frank v. Johnson,

968 F.2d 298, 300 (2d Cir. 1992) (failure to file timely

objections to Magistrate Judge's recommended ruling waives

further review of the ruling)

Dated this 3rd day of August, 2016 at Hartford,

Connecticut.

/s/_______________

Donna F. Martinez

United States Magistrate Judge

Additional material

from this filing is

available i n the

Cler'k's Office.

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