Briscoe v. Wagner

(\\i\ FILED SEP 15 2011 Clerk, U.S. District & Bankruptcy Courts for the District ot Columbia UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Tyrone Briscoe, Plaintiff, v. Civil Action No. lb.?;[ ' c Chief Judge Annice M. Wagner et al., \/\/\z\/\/\/\/\/\/ Defendants. MEMORANDUM OPINION This action, brought pro se, is before the Court on its initial review of the complaint, which is accompanied by an application to proceed in forma pauperis. Because the instant complaint presents claims that were or could have been raised in a previous action, the Court will dismiss this action on the ground that it is procedurally barred. Under the doctrine of res judicata, a final judgment on the merits in one action "bars any further claim based on the same ‘nucleus of facts’ . . . ." Page v. United States, 729 F.2d 818, 820 (D.C. Cir, 1984) (quoting Expert Elec., Inc. v. Levl`ne, 554 F.2d l227, 1234 (D.C. Cir. 1977)). Res judicata bars the relitigation "of issues that were or could have been raised in [the prior] action" by the same parties or their privies. Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002) (emphasis in original) (quoting Allen v. McCurry, 449 U.S. 9(), 94 (1980)); see I.A.M Nat’l Pensz`on Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that res judicata "forecloses all that which might have been litigated previously"); accord Crowder v. Bz'erman, Geesz`ng, and Ward LLC, 713 F. Supp. 2d 6, 10 (D.D.C. 20lO). Plaintiff is a District of Columbia prisoner confined at the United States Penitentiary McCreary in Pine Knot, Kentucky. Invoking 42 U.S.C. § 1983, plaintiff sues former Chief Judge Annice M. Wagner of the District of Columbia Court of Appeals, former Assistant United States Attorney ("AUSA") John Fisher, AUSA J ames Sweeney, and attorneys Kenneth A. Rosenau and Susan H. Rosenau, both of whom were appointed in 2001 to represent the plaintiff in his criminal appeal before the D.C. Court of Appeals. See Complaint ("Compl.") Attachment (Nov. 21, 2001 Order). ln addition, plaintiff sues the "Clerk, United States Court of Appeals," Compl. Caption, who is identified in the body of the complaint as the "Chief Clerk" of the District of Columbia Court of Appeals, Compl. at 6, alleging only that "individuals working as assistant clerk [sic] discarded and destroyed motions file[d] by [plaintiff] in a timely fashion." Compl. at 5. Plaintiff "seeks to have the original indictment dismissed [and] feel[s] strongly that he is entitled to obtain his liberty." 1d. at 6. The instant complaint presents the same claims that were raised, or could have been raised, in the prior civil action dismissed on May 5, 2010. See Brz'scoe v. Wagner, Civ. Action No. 10-07l0 (UNA) (D.D.C., May 5, 20l0) (Order and accompanying l\/Iemorandum Opinion dismissing case pursuant to 28 U.S.C. § l9l5A(b)(1)). Therefore, this case will be dismissed with prejudice.' A separate Order accompanies this Memorandum Opinion. Z:`/C- § />’w