Opinion
No. 4:01CV3288
February 20, 2003
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS
Before me are the motions of Defendants Bryan Lincoln General Hospital, St. Paul Fire and Marine Insurance Co., and Troy Hemberger (filing 59) and Defendant Nurse C. Ashcroft (filing 61) to dismiss the plaintiff's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6), and 41(a)(1), and pursuant to the doctrine of res judicata. The defendants' motions will be denied.
The defendant has suggested that St. Paul Fire and Marine Insurance Co. is not a valid party to this action, and the plaintiff has agreed. Compare Defs. Bryan LGH Medical Center East, St. Paul Fire Marine Ins. Co., and Troy Hemberger's Br. in Supp. of Rule 12(b)(6) Mot. to Dismiss at 5 n. 2 with Pl.'s Br. in Response to Defs.' Mot. to Dismiss at 5.) Therefore, I shall order that St. Paul Fire and Marine Insurance Co. be dismissed from the plaintiff's complaint.
I. BACKGROUND
On November 15, 2001, the plaintiff, Jason N. Witmer, filed a complaint entitled " 42 U.S.C. § 1983 Civil Action and Motion To Proceed in Forma pauperis." (Filing 1.) This complaint, which was filed by the plaintiff pro se, alleges that defendants "Officer Sims," "Sgt. Koziol," "Sgt. Kuhlman," "Officer Brehn," "Jane Doe Nurses," "John Doe Doctor," and "Officer Hunzeker" violated or conspired to violate the plaintiff's rights under the United States and Nebraska Constitutions. (Compl., filing 1.) These violations allegedly occurred while the plaintiff was receiving treatment at the "Bryan — LGH East" hospital in Lincoln, Nebraska, (hereinafter "the hospital") for multiple gunshot wounds. (Id.) Specifically, the plaintiff claims that while he was "under the influence of morphine" during his recovery from emergency surgery, Lincoln Police officers interrogated him, obtained a confession, and secured his signature on a consent form that allowed them to collect blood samples from the plaintiff's body. (See id.) The officers' actions allegedly violated the plaintiff's rights under the First, Fourth, Fifth, Thirteenth, and Fourteenth Amendments, and the remaining defendants allegedly violated these same rights by failing to prevent the officers' actions and by conspiring with the officers. (See id.) To redress these violations, the plaintiff requests (1) a declaration that the defendants violated his rights; (2) $10 million in compensatory damages and an additional $10 million for "pain and suffering, psychological trauma and mental duress"; and (3) an order directing the hospital to prevent the police from harassing him while he is injured and under the influence of drugs. (Id.)
On December 6, 2001, the plaintiff filed a "Motion to Strike," (filing 6), which stated, "Please dismiss this civil action before it is started." (Mot. to Strike, filing 6.) The Honorable Kathleen A. Jaudzemis, United States Magistrate Judge, construed this "Motion to Strike" as a voluntary dismissal within the meaning of Federal Rule of Civil Procedure 41(a), and ordered that the plaintiff's complaint be dismissed without prejudice. (See filing 7.) However, on December 27, 2001, the plaintiff moved to reinstate the case (see filing 10), and his motion was granted by me on January 18, 2002, (see filing 12).
The plaintiff's amended complaint, which was filed on the same day as his motion to reinstate the case, names the hospital, Troy Hemberger, John and Jane Does, Police Chief Tom Casady, Sgt. Erin Sims, Officer Greg Sims, Officer Brehm, and "all unknown sureties" as defendants. (See filing 11). However, the plaintiff (still acting pro se) promptly filed a new complaint entitled "2nd Amended Complaint, 'Official Complaint,'" which names the hospital, Troy Hemberger, Nurse C. Ashcroft, St. Paul Fire and Marine Insurance Co., Chief Casady, Sgt. Erin Sims, Officer Greg Sims, Officer Brehm, and "Lincoln Police's Unknown Surety" as defendants. (Filing 14.) In the second amended complaint, the plaintiff claims that "defendants routinely conspire to illegally procure and obtain the DNA and other incriminating or seemly [sic] incriminating evidence, etc, from Afro-Americans, minorities, etc, paupers such as hereof complained in violation of the 4th, 5th, 8th, 13th, and 14th Amendments to the U.S. Constitution." (Second Am. Compl., filing 11.) The plaintiff also added "the torts of assault and battery and negligence." (Id.)
Meanwhile, the plaintiff filed a similar complaint that was given a new case number and assigned to the Honorable Richard G. Kopf, Chief United States District Judge. See Witmer v. Bryan Lincoln General Hospital, et al., No. 4:02CV3024 (D.Neb. filed Jan. 24, 2002). Pursuant to Judge Kopf's order of February 27, 2002, this complaint was ultimately transferred to file number 4:01CV3288, and case number 4:02CV3024 was terminated. This complaint now appears in file number 4:01CV3288 at filing 26, and it is the operative complaint in this case.
The operative complaint names the hospital, Troy Hemberger, Nurse C. Ashcroft, St. Paul Fire and Marine Insurance Co., Chief Casady, Sgt. Erin Sims, Officer Greg Sims, Officer Brehm, and "Lincoln Police's Unknown Surety" as defendants, and alleges that the defendants routinely conspire to procure illegally DNA and other evidence from minorities and paupers in violation of the Fifth, Eighth, Thirteenth, and Fourteenth Amendments. (Filing 26.) However, in my initial review of the operative complaint pursuant to the Prison Litigation Reform Act, Pub.L. No. 104-135, §§ 804(a)(5), 805, 110 Stat. 1321 (1996), 28 U.S.C. § 1915A; id. § 1915(e)(2), I determined that if the plaintiff's allegations are construed liberally and assumed to be true, the complaint states a claim "for violation of the Fourth, Fifth, and Sixth Amendments to the Constitution and the principles of Miranda v. Arizona, 384 U.S. 436 (1966)." (Mem. and Order, filing 36, at 3.) The relief sought by the plaintiff comprises a declaration that the defendants violated the plaintiff's rights, $50 million for "physical distress," $50 million for "emotional and mental distress," and $50 million for "theft of DNA/blood." (Filing 26.)
The claims set forth in the operative complaint are based upon the following allegations. On August 16, 1999, Witmer sought treatment at the hospital for multiple gunshot wounds. While he was being prepared for surgery, Witmer was questioned by the Lincoln Police about an alleged robbery. "The doctors and nurses present did not in any way try to stop" the interrogation. (Filing 26, ¶ 3.) The interrogation lasted until anesthetics rendered Witmer unconscious. After the surgery, the police, who were "supported by" the hospital, denied the plaintiff access to visitors and to a telephone, posted a 24-hour guard, and placed him in shackles. (Filing 36, ¶ 7.) On August 19, 1999, the interrogation of the plaintiff continued despite the fact that the plaintiff was in pain, bedridden, and under the influence of morphine. Although the plaintiff refused to speak with the officers initially, the officers eventually obtained a confession and a signed consent form from him. The police also obtained blood and DNA samples from the plaintiff without first securing a warrant. The samples were collected from the plaintiff's body by Hemberger, an employee of the hospital.
(See filing 26; see also filing 36 at 3.)
On June 19, 2002, Defendants Tom Casady, Erin Sims, Greg Sims, and Officer Brehm moved to dismiss the plaintiff's complaint against them pursuant to Federal Rule of Civil Procedure 12(b)(6). (See filing 49.) On June 21, 2002, I appointed counsel to represent the plaintiff. (See filing 50.) The plaintiff was granted additional time to respond to the defendants' motion to dismiss, and on July 22, 2002, the plaintiff filed a notice dismissing Defendants Casady, Erin Sims, Greg Sims, and Brehm without prejudice pursuant to Federal Rule of Civil Procedure 41(a). (See filing 55.) I therefore denied the defendants' motion to dismiss as moot and dismissed those defendants without prejudice pursuant to the plaintiff's Rule 41(a) notice of dismissal. (See filing 57.)
The hospital, St. Paul Fire and Marine Insurance Co., Hemberger, and Nurse C. Ashcroft filed motions to dismiss as well; however, these motions were erroneously accepted for filing in Case No. 4:02CV3024. Pursuant to Judge Kopf's order of August 6, 2002, the motions were transferred to Case No. 4:01CV3288. (See filings 58, 59, 60, 61.) These are the motions that are now before me for resolution.
According to the Index of Evidence submitted by these defendants, the plaintiff has also filed complaints against them in the District Courts of Lancaster County and Hall County. (See filing 60, Ex. 1, 5, 9.) Case No. CI 01-4221 was filed by the plaintiff in Lancaster County District Court on November 19, 2001, and names the hospital, "Unknown John/Jane Doe Doctors [and] Nurses [and] Unknown Insurance Companies" as defendants. (Filing 60, Ex. 1.) The plaintiff moved to dismiss this case without prejudice on January 31, 2002, (see id., Ex. 2), and his motion was granted on January 30, 2002, (see id., Ex. 3). However, on February 4, 2002, the plaintiff filed a second amended complaint in Case No. CI 01-4221. (See id., Ex. 4.) I cannot determine from the materials before me whether Case No. CI 01-4221 remains closed or has been reinstated.
On December 12, 2001, the plaintiff filed Case No. CI 01-4523 in Lancaster County District Court, naming Troy Hemberger "and his Unknown Surety" as defendants. (Filing 60, Ex. 5.) The court reviewed the plaintiff's complaint and denied the plaintiff's request to proceed in forma pauperis on the ground that "the 'legal' position being asserted by the plaintiff is frivolous." (Id., Ex. 6.) The plaintiff evidently moved for a reconsideration of this decision, but his motion was denied on December 19, 2001. (See id. Ex. 7.) It appears that the plaintiff has appealed the District Court's orders, (see id. Ex. 8), and the defendants in the instant case have stated that this appeal is currently pending in the Nebraska Court of Appeals, (see Defs. Bryan LGH Medical Center East, St. Paul Fire Marine Ins. Co., and Troy Hemberger's Br. in Supp. of Rule 12(b)(6) Mot. to Dismiss (hereinafter "Defs.' Br.") at 3).
Finally, on January 18, 2002, the plaintiff filed Case No. CI 02-80 in Hall County District Court, naming St. Paul Fire and Marine Insurance Company as defendant. (See filing 60, Ex. 9.) The plaintiff moved to dismiss this case without prejudice on February 15, 2002, (see id., Ex. 10) and this motion was granted on the same day, (see id., Ex. 11.) The plaintiff's complaints in Case Nos. CI 01-4221, CI 01-4523, CI 02-80 and the operative complaint in the instant case all appear to be based upon incidents that occurred during the plaintiff's stay at the hospital in August 1999.
The hospital, St. Paul Fire and Marine Insurance Company (St. Paul), and Troy Hemberger have filed a motion to dismiss the operative complaint (filing 26) pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(6), 41(a)(1), and pursuant to the doctrine of res judicata. (See filing 59.) Their motion is supported by an evidence index (see filing 60) and a brief (see Defs.' Br.) Nurse C. Ashcroft has filed a motion to dismiss (filing 61) that is nearly identical to that filed by the hospital, St. Paul, and Hemberger, (compare filing 59 with filing 61), and has requested that I consider the evidence index and brief submitted by the hospital, St. Paul, and Hemberger in connection with her motion. (See filing 61 at 1; Def. Nurse C. Ashcroft's Br. in Supp. of Mot. to Dismiss (submitted to Chief Judge Richard G. Kopf in Case No. 4:02CV3024).) The plaintiff has responded to the defendants' motions. (See Pl.'s Br. in Response to Defs.' Mot. to Dismiss (hereinafter Pl.'s Br.).) My analysis of the parties' arguments follows.
II. STANDARDS FOR MOTIONS TO DISMISS
A motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may challenge either the factual truthfulness or the facial sufficiency of the plaintiff's jurisdictional allegations. See, e.g.,Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990)).
A court deciding a motion under Rule12(b)(1) must distinguish between a "facial attack" and a "factual attack." In the first instance, the court restricts itself to the face of the pleadings, . . . and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6). The general rule is that a complaint shall not be dismissed "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" In a factual attack, the court considers matters outside the pleadings, . . . and the non-moving party does not have the benefit of 12(b)(6) safeguards.Osborn, 918 F.2d at 729 n. 6 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)) (citations omitted). Continuing, the court explained factual attacks in greater detail:
[H]ere the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist.Id. at 730 (quoting Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977)). A court's election to consider affidavits or other documents submitted in support of a factual Rule 12(b)(1) motion does not convert the Rule 12(b)(1) motion into a motion for summary judgment. See Osborn, 918 F.2d at 729.
Pursuant to Rule 12(b)(6), "a motion to dismiss a complaint should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (citation omitted); see also Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In resolving such motions, all well-pleaded allegations in the complaint must be taken as true, and the complaint and all reasonable inferences arising therefrom must be weighed in favor of the plaintiff. Morton, 793 F.2d at 187. When considering a Rule 12(b)(6) motion to dismiss, the court has the discretion to decide whether it will accept materials outside the pleadings. See Skyberg v. United Food and Commercial Workers International Union, 5 F.3d 297, 302 n. 2 (8th Cir. 1993). If the Court accepts outside information, it must convert the motion to dismiss to one for summary judgment. See Fed.R.Civ.P. 12(b)(6). Upon conversion, the court applies the standard for summary judgment set forth in Rule 56. Id.
A party may move to dismiss a claim for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). If, in connection with a Rule 12(b)(2) motion to dismiss, the district court considers only written materials submitted by the parties, the non-moving party may satisfy his burden of establishing personal jurisdiction by making only a prima facie showing of jurisdictional facts. Northrup King Co. v. Compania Productora Semillas Algodoneras Selectas, S.A., 51 F.3d 1383, 1387 (8th Cir. 1995).
III. ANALYSIS A. Whether the Complaint Must Be Dismissed Pursuant to Rule 12
The defendants first argue that the operatiave complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12. (See Defs.' Br. § II.A. at 4-7.) Of course, Rule 12 contains a number of different defenses, and the defendants specifically invoke three of these in their brief. (See id.) First, after describing the standard for evaluating "factual attacks" against a complaint's jurisdictional allegations, (see Defs.' Br. at 4 (citing White v. Lee, 227 F.3d 1214 (9th Cir. 2000))), the defendants argue as follows:
In addition, all parties joining in this motion to dismiss have submitted to the jurisdiction of the Lancaster and Hall County Courts on these identical facts and, indeed, the Court of Appeals for the State of Nebraska currently has jurisdiction over these persons and the subject matter of this claim pursuant to Witmer's appeal. (FRCP 12(b)(1); (FRCP 12(b)(2))[)].
Congress has employed its power to provide that the federal courts "shall not have jurisdiction" over a claim, "for or in respect to which" the plaintiff "has [a suit or process] pending in any other court. Owen Equip. Erection Co. v. Kroger, 437 U.S. 365, 374 . . . (1978).
(Defs.' Br. at 4.) The defendants appear to claim that the present case must be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and personal jurisdiction pursuant to Rule 12(b)(2) because two County District Courts in Nebraska had or have jurisdiction over other "identical" suits filed by the plaintiff. While this argument may present a basis for exercising abstention — a theory that has not been advanced by the parties — I do not believe that the defendants have presented a colorable argument that the operative complaint must be dismissed for lack of subject matter jurisdiction or personal jurisdiction. Certainly, Kroger does not support the defendants' position. Indeed, the quote attributed to Kroger in the defendants' brief is not to be found anywhere in that case. I find that the defendants have not demonstrated that they are entitled to dismissal of the operative complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), and therefore their motion to dismiss is denied to the extent that it is based upon those rules.
The remaining cases cited by the defendants in support of their argument are also inapposite. See In re Skinner Eddy Corp., 265 U.S. 86, 96 (1924) ("No person shall file or prosecute in the Court of Claims, or in the Supreme Court on appeal therefrom, any claim for or in respect to which he or any assignee of his has pending in any other court any suit or process against any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, mediately or immediately, under the authority of the United States.") (quoting 154 of the Judicial Code (Comp. St. § 1145)); Corona Coal Co. v. United States, 263 U.S. 537 (1924); Light v. Blackwell, 472 F. Supp. 333 (E.D.Ark. 1979) ("There is simply no need to provide a federal tort remedy for property damage caused by the negligence of state agents if a state remedy is not only adequate in theory but also readily available in practice.")
The defendants also argue that the operative complaint must be dismissed because "in order to recover under 42 U.S.C. § 1983 and 1985, the challenged conduct must be committed 'under color of law,'" (Defs.' Br. at 5), and here none of the defendants "was acting with governmental authority or was clothed under color of law," (id. at 6). I shall interpret the defendants' argument as being raised under Rule 12(b)(6).
The defendants are correct that "[t]o state a claim under § 1983, a plaintiff . . . must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). However, "[t]o act 'under color' of law does not require that the [defendant] be an officer of the state." United States v. Price, 383 U.S. 787, 794 (1966). "It is enough that he is a willful participant in joint activity with the State or its agents." Id. See also Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295-96 (2001); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982); Mildfelt v. Circuit Court of Jackson County, Missouri, 827 F.2d 343, 345-46 (8th Cir. 1987). Here, the plaintiff has alleged that the defendants conspired to violate his constitutional rights and to illegally obtain his DNA. (See filing 26.) He has also alleged with particularity the factual basis for his allegations. (See id.) Taking these allegations as true, and weighing all reasonable inferences arising from the allegations in favor of the plaintiff, I cannot say that it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief.See Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). Therefore I must reject the defendants' argument that the operative complaint must be dismissed pursuant to Rule 12(b)(6).
In United States v. Price, 383 U.S. 787 (1966), the Court was considering an indictment that charged "nonofficial" defendants with offenses based upon 18 U.S.C. § 242. Price, 383 U.S. 794. However, the Court explicitly noted that '[u]nder color of law' means the same thing in § 242 that it does in the civil counterpart of § 242, 42 U.S.C. § 1983." Id. at 794 n. 7. The Court also recognized that "[i]n cases under § 1983, 'under color' of law has consistently been treated as the same thing as the 'state action' required under the Fourteenth Amendment." Id. See also Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 295 n. 2 (2001).
The defendants have also argued that the plaintiff's operative complaint must be dismissed pursuant to the doctrine of res judicata. Although res judicata is a defense typically raised in an answer, see Fed.R.Civ.P. 8(c), the defendants argue that their res judicata challenge may properly be raised in a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Thompson v. County of Franklin, 15 F.3d 245, 253 (2nd Cir. 1994) (citing 5A Wright Miller, Federal Practice and Procedure § 1357, at 356 n. 69 (2d ed. 1984)). I shall present my analysis of the defendants' res judicata arguments under a separate heading below. In all other respects, I have rejected the defendants' arguments that the plaintiff's complaint must be dismissed under Rules 12(b)(1), 12(b)(2), and 12(b)(6). I shall now turn to the defendants' claim that the complaint must be dismissed pursuant to Rule 41(a)(1).
B. Whether the Operative Complaint Must Be Dismissed Pursuant to Rule 41(a)(1)
The defendants next argue that the operative complaint must be dismissed pursuant to Federal Rule of Civil Procedure 41(a)(1).
Rule 41(a)(1) permits a plaintiff to dismiss an action without prejudice only when he files a notice of dismissal before the defendant files an answer or motion for summary judgment and only if the plaintiff has never previously dismissed an action "based on or including the same claim." . . . If the plaintiff invokes Rule 41(a)(1) a second time for an "action based on or including the same claim," the action must be dismissed with prejudice.Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 394 (1990). The defendants argue that because the plaintiff "has voluntarily dismissed this case in Lancaster County, Hall County, and in the United States District Court," his claims are now barred. (Defs.' Br. at 8.) However, after studying the evidence index submitted by the defendants, (filing 60), it seems to me that as things now stand, the plaintiff has not "invoke[d] Rule 41(a)(1) a second time" so as to trigger the two-dismissal limit set forth in Rule 41(a)(1). Cooter Gell, 496 U.S. at 394. It is true that the plaintiff voluntarily dismissed Case No. CI 02-80, and that this dismissal "counts" as a prior voluntary dismissal for the purposes of Rule 41(a)(1). However, although the plaintiff also voluntarily dismissed Case No. CI 01-4221 (see filing 60, Ex. 2-3) and the instant case (see filing 6), he evidently succeeded in vacating both of those dismissals, (see filing 60, Ex. 4; filings 10, 12). The Eighth Circuit has recognized that a plaintiff can avoid having a second dismissal operate as an adjudication on the merits within the meaning of Rule 41(a)(1) by moving "to set aside or vacate the dismissal of the second action." Engelhardt v. Bell Howell Co., 299 F.2d 480, 484 (8th Cir. 1962). The plaintiff has done so here. Therefore, the instant case will not be dismissed pursuant to Rule 41(a)(1).
C. Whether the Operative Complaint Must Be Dismissed Pursuant to the Doctrine of Res Judicata
Finally, the defendants argue that the operative complaint must be dismissed pursuant to the doctrine of res judicata. I am not wholly convinced that it is appropriate to consider this argument in connection with the instant motion to dismiss. It seems to me that because the defendants have submitted matters outside the complaint for my consideration (see filing 60), the motion to dismiss technically ought to be converted to a motion for summary judgment. See Fed.R.Civ.P. 12(b). However, as there is some authority for considering matters of public record in connections with motions to dismiss, see 5A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990) ("In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account."), and since I have already considered the materials submitted by the defendants in connection with their Rule 41(a)(1) argument, I shall proceed to analyze the defendants' res judicata argument.
The defendants argue that the denial of the plaintiff's request to proceed in forma pauperis in Case No. CI 01-4523 bars the instant action. To prevail on this argument, the defendants must establish each of the following three elements: "(1) the prior judgment was rendered by a court of competent jurisdiction, (2) the prior judgment was a final judgment on the merits, and (3) the same cause of action and the same parties or their privies were involved in both cases." White v. Kelsey, 935 F.2d 968, 969 (8th Cir. 1991) (citing Murphy v. Jones, 877 F.2d 682, 684 (8th Cir. 1989)). "[T]he principle of [r]es judicata applies to § 1983 actions and operates as a bar to the relitigation of constitutional issues actually raised as well as to constitutional issues that could have been raised in a prior lawsuit if the second suit concerns the same operative nucleus of fact." Robbins v. District Court of Worth County, Iowa, 592 F.2d 1015, 1017 (8th Cir. 1979). See also Allen v. McCurry, 449 U.S. 90, 96-104 (1980).
In support of their argument that this previous order was a final judgment on the merits, the defendants rely upon Cole v. Clarke, 641 N.W.2d 412 (Neb.Ct.App. 2002). In Cole, the Court of Appeals of Nebraska found that the claimant's petition was largely barred by the doctrine of res judicata. See Cole, 641 N.W.2d at 415-17. The court stated:
For purposes of res judicata, a judgment on the merits is one which is based on legal rights, as distinguished from mere matters of practice, procedure, jurisdiction, or form. See DeVaux v. DeVaux, [ 245 Neb. 611, 514 N.W.2d 640 (1994)]. As such, summary judgments, judgments on directed verdict, judgments after trial, default judgments, and consent judgments are all generally considered to be on the merits for purposes of res judicata, while dismissals on technical procedural grounds are generally not on the merits. See id.Cole, 641 N.W.2d at 416. The court noted that Cole previously filed a petition based upon the same operative facts as his current one, and that this prior petition was dismissed based upon the claimant's failure to state a cause of action. See id. This dismissal was deemed to be a final judgment on the merits for res judicata purposes. See id.
It seems to me that Cole is distinguishable from the present case. There is no evidence presently before me indicating that a judgment adverse to the plaintiff was entered in Case No. CI 01-4523. I have been shown no "summary judgment, judgment on directed verdict, judgment after trial, default judgment, . . . consent judgment," or judgment of dismissal for failure to state a claim. Cole, 641 N.W.2d at 416. I do see an order signed by District Judge Merritt stating, "Accordingly, the plaintiff's request to proceed in forma pauperis should be, and hereby is, denied." (Filing 60, Ex. 6.) However, this order does not seem to fall within the category of "judgments on the merits" for res judicata purposes. On the contrary, Nebraska Revised Statute section 25-2301.02(1) suggests that the plaintiff would be allowed "to proceed with an action or appeal upon payment of fees, costs, or security" if he does so within 30 days of the statement denying his "forma pauperis" application. Indeed, there is evidence that the plaintiff has paid the applicable fee and appealed Judge Merritt's order pursuant to this statute. (See filing 60, Ex. 7-8.) At this time, I am simply not persuaded that the previous denial of the plaintiff's application to proceed in forma pauperis, standing alone, amounts to a final judgment on the merits for the purposes of res judicata. Thus, the defendant has not established that the operative complaint must be barred.
The defendants also refer me to a section of Cole entitled, "Continuing Litigation," which includes that following statement:
In Cole v. Wilson, 10 Neb. App. 156, 627 N.W.2d 140 (2001), this court noted that the state's interest in not allowing frivolous or malicious litigation in its courts is constitutionally paramount to the plaintiff's desire to pursue such litigation. See, also, State ex rel. Tyler v. Douglas Cty. Dist. Ct., 254 Neb. 852, 580 N.W.2d 95 (1998). Pursuant to the appellate courts' interest in not allowing frivolous or malicious litigation, the appellate courts have previously limited Billy Roy Tyler to filing only one lawsuit per month when proceeding in forma pauperis in Douglas County and have ordered that the present claimant, Frankie Levi Cole, be prohibited from filing further litigation against his former attorney, Andrew Wilson, concerning the adequacy of Wilson's representation of Cole between February 13 and April 9, 1996.Cole v. Clarke, 641 N.W.2d 412, 417 (Neb.Ct.App. 2002). It seems to me that this reference to the problems presented by particularly persistent would-be plaintiffs is not applicable to the case now before me. I shall resist the defendants' suggestion that I should impose a similar ban upon the plaintiff in this case.
The defendants have also failed to convince me that "the same cause of action and the same parties or their privies were involved in both cases," which is the third criterion that must be satisfied before a complaint will be deemed precluded under the doctrine of res judicata.White v. Kelsey, 935 F.2d 968, 969 (8th Cir. 1991). On this point the defendants argue, "In each of the cases filed in Lancaster County, the case filed in Hall County and the case currently on file in the United States District Court, all allege that Bryan LGH and Troy Hemberger among others, violated Witmer's civil rights with respect to the Fourth and Fourteenth Amendments to the United States Constitution." (Defs.' Br. at 5.) This statement is not accurate. As I noted above (see supra Part I), Case No. CI 01-4523 names Troy Hemberger "and his Unknown Surety" as defendants. (Filing 60, Ex. 5.) There is no mention of the hospital, Nurse C. Ashcroft, St. Paul Fire and Marine Insurance Co., Chief Casady, Sgt. Erin Sims, Officer Greg Sims, Officer Brehm, or "Lincoln Police's Unknown Surety" in the petition. (See id.) Although the "police" defendants have been dismissed from the operative complaint, I am not persuaded that the remaining defendants (with the exception of Hemberger) are in privity with the defendant in Case No. CI 01-4523. See, e.g.,White, 935 F.2d at 969-70.
In addition, I am not convinced that the petition in filed Case No. CI 01-4523 and the operative complaint allege the same cause of action. The substantive allegations presented in Case No. CI 01-4523 state, in their entirety, as follows:
Acting in concert with the Lincoln Police and under color of state law on August 19, 1999, the defendant violated our constitution when defendant stole blood/DNA from relator as is set out and detailed in the annexed police report.
Defendant intentionally subjected relator to physical distress by withdrawing our "blood/DNA."
Defendant then and there being did willfully, wrongfully, knowingly, feloniously, and unlawfully against the will, peace, and dignity of relator, subject relator to emotional distress.
(Filing 60, Ex. 5.) I can infer from the date provided by the plaintiff that this petition is based upon a particular incident that formed part of the basis for the claims set forth in the operative complaint. (Compare filing 26 with filing 60, Ex. 5.) However, there are no allegations in the petition concerning the events of the days prior to August 19, 1999, including the hospital's or its employees' collaboration with the police to arrange interrogations (compare filing 26, ¶¶ 3, 8with filing 60, Ex. 5) or their role in holding the plaintiff "incommunicado," (compare filing 26, ¶ 7 with filing 60, Ex. 5). There are also no allegations whatsoever in the petition against Nurse C. Ashcroft. (Compare filing 26, ¶ 15 with filing 60, Ex. 5.) The operative complaint therefore alleges different violations by different people involved in different transactions than those presented in Case No. CI 01-4523. Many of their alleged actions "were separate in time and function" from the actions of Hemberger as they are set forth in the petition in Case No. CI 01-4523. White v. Kelsey, 935 F.2d 968, 970 (8th Cir. 1991). Under the circumstances, I have doubts as to whether the defendants (other than, perhaps, Hemberger) would have a valid argument that the operative complaint is barred by the doctrine of res judicata even if there had been a final judgment on the merits in Case No. CI 01-4523.
IT IS THEREFORE ORDERED that the motions to dismiss filed by Defendants Bryan Lincoln General Hospital, St. Paul Fire and Marine Insurance Co., and Troy Hemberger (filing 59) and Defendant Nurse C. Ashcroft (filing 61) are denied.
IT IS FURTHER ORDERED THAT defendant St. Paul Fire and Marine Insurance Co. is dismissed from this action.