Ervin v. Wexford
MEMORANDUM. Signed by Judge Ellen L. Hollander on 12/27/2016. (kr2, Deputy Clerk)(c/m 12/28/16) Modified on 12/28/2016 (kr2, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Pii 5: 46
Civil Action No. ELH-16-3964
i .. LI- .•\
On December 8, 2016, plaintiff Roger Ervin mailed correspondence
concerns a prior civil rights case, Civil Action ELH-15-2263,
surrounding his conviction.
to the court that
as well as the circumstances
Ervin's prior civil case was closed on August 18,2016, after the defendants' motion to
dismiss or for summary judgment was granted. See Ervin v. Olley, et aI., Civil Action ELH-152263 (D. Md.) at ECF 27 & 28. Ervin did not note an appeal in that case, but in his letter he
alleges that defendants lied in documents filed with this court and continues to state that the
diagnosis provided is incorrect.
Unless Ervin can express a new claim based on facts arising
after the termination of Civil Action ELH-15-2263, the matters asserted regarding his medical
care cannot be raised in a new civil action.
Where there has been a final judgment on the merits in a prior suit; an identity of the
cause of action in both the earlier and the later suit; and an identity of parties or their privies in
the two suits, res judicata is established.
243,248 (4th Cir. 2005).
See Pension Ben. Guar. Corp. v. Beverley, 404 F. 3d
The doctrine of res judicata precludes the assertion of a claim after a
judgment on the merits in a prior suit by the same parties on the same cause of action.
Meekins v. United Tramp. Union, 946 F. 2d 1054, 1057 (4th Cir. 1991). In addition, "'[nJot only
does res judicata bar claims that were raised and fully litigated, it prevents litigation of all
grounds for, or defenses to, recovery that were previously available to the parties, regardless of
whether they were asserted or determined in the prior proceeding.'''
Id. (quoting Peugeot Motors
oj America, Inc. v. Eastern AII/o Distribll/ors, Inc., 892 F. 2d 355, 359 (4th Cir. 1989)).
correspondence addresses his conviction and alleges certain deficiencies in the trial process as
well as defense counsel's performance.
ECF I. If Ervin intends to challenge the validity of his
conviction he may do so by filing a petition for writ of habeas corpus pursuant to 28 U.S.C.
~2254, provided he has exhausted all claims he intends to raise in thc state courts.
To the extent Ervin wishes to raise a new civil rights claim, distinct from his earlier case,
he may do so using pre-printed forms for filing a claim pursuant to 42 U.S.C. ~1983.
supplementing the claim, Ervin is reminded to include the names of individuals whom he claims
are responsible for the alleged wrongdoing; the dates of the alleged incidents; and the facts
supporting his claim. He is also reminded that case law citations or submission of exhibits with
the Complaint are not required.
As the Court has suggested, it is unclear whether the intent of Ervin's correspondence is
to file a new civil rights claim regarding medical care, or to file a habeas corpus petition
challenging his conviction.
Therefore, he will be provided an opportunity to clarify his intent
and forms will be provided to him for his use in clarifying the claims he intends to pursue. Ervin
When tiling a federal habeas corpus application under 28 U.S.c. ~ 2254, a petitioner
must show that all of his claims have been presented to the state courts. 28 U.S.C. ~ 2254(b) and
(c); see also Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). This exhaustion requirement is
satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it.
For a person convicted of a criminal offense in Maryland this may be accomplished either on
direct appeal or in post-conviction proceedings.
that failure to file a supplemental
result in dismissal
of this case, without further notice, and without prejudice.
Ellen L. Hollander
United States District Judge
An Order follows.
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