Ervin v. Wexford

Filing 2

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).

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• IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ZOISDEC 27 Pii 5: 46 Plaintiff • • By, v • Civil Action No. ELH-16-3964 WEXFORD • ROGER ERVIN i .. LI- .•\ 1 [.\Llli r 1 ••• 1 a... ,-i 'Jl" • Defendant ••• MEMORANDUM 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 ECF I. 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. See .. 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)). Although Ervin's correspondence referenccs the closed civil case, most of the 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. I 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. In 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. I 2 is forewarned that failure to file a supplemental result in dismissal clarifying the matters of this case, without further notice, and without prejudice. /s/ 12/27/2017 Date pleading Ellen L. Hollander United States District Judge 3 asserted will An Order follows.

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