Davis v. Raines
MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 12/11/2017. (slt)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
CASE NO. 7:17cv00107
By: Hon. Glen E. Conrad
Senior United States District Judge
Gary Davis, a Virginia inmate proceeding pro se, filed this civil rights action under 42
U.S.C. § 1983, alleging that the defendant, Stephen Raines, wrongfully detained him and used
excessive force against him. The defendant has filed a motion to dismiss arguing that Davis’
current claims are barred by res judicata, based on the court’s dismissal of his prior lawsuit, Case
No. 7:15CV00380. Finding no merit to the defendant’s argument, the court will deny the motion
In brief, Davis alleges that on Saturday, May 31, 2014, he was leaving a store in Franklin
County, Virginia, when Raines, an off-duty Henry County police officer, stopped him and
prevented him from entering a nearby vehicle. Raines believed that authorities had outstanding
arrest warrants for Davis. When Davis refused to cooperate and tried to reenter the store, Raines
allegedly slammed the door on his hand and injured him.
In July 2015, Davis filed a pro se civil rights complaint under § 1983 against Raines and
others, docketed as Case No. 7:15CV00380. In the initial, conditional filing order, the court
notified Davis, among other things: “Plaintiff shall notify the court in writing immediately upon
plaintiff’s transfer or release and shall provide a new address. FAILURE TO NOTIFY THE
COURT OF SUCH A CHANGE OF ADDRESS WILL RESULT IN DISMISSAL OF THE
CASE.” (Case No 7:15CV00380, ECF No. 5.) Once Davis consented to pay the filing fee
through installments from his inmate trust account, the court advised him that his original
complaint did not state the claims he wished to pursue and granted him an opportunity to file an
amended complaint, which Davis did. The court liberally construed Davis’ amended complaint
as alleging the following claims against Raines, seeking monetary damages: 1 (1) Raines violated
state law by detaining Davis outside of Henry County; (2) Raines seized Davis in violation of the
Fourth Amendment by preventing him from entering the vehicle and by slamming the store’s
door on Davis’ arm to prevent him from entering the store; and (3) Raines’ slamming of the door
on Davis’ hand constituted (a) excessive force under the Fourth Amendment and (b) assault and
Raines filed a motion to dismiss, and Davis responded. By opinion and order dated June
14, 2016, the court denied the motion to dismiss 2 and directed Raines to file a motion for
summary judgment within 21 days. (Case No. 7:15CV00380, ECF No. 29.) On June 30, 2016,
the copies of the opinion and order that the clerk had mailed to Davis at the jail address he had
provided were returned as undeliverable, with no forwarding address. (Case No 7:15CV00380,
ECF No. 30). By opinion and order entered July 1, 2016, the court dismissed the civil action
without prejudice for failure to prosecute, based on Davis’ failure to comply with the court’s
prior order requiring him to ensure that the court had a current mailing address. See Fed. R. Civ.
P. 41(b). The court’s opinion also stated: “If Davis wishes to proceed with this action, he may
move to reopen the case within 30 days from the entry of the dismissal order, provided that he
By separate opinion and order, the court summarily dismissed all claims against the other defendants: the
Franklin County Sheriff’s Office and the Henry County Sheriff’s Office.
Specifically, the court denied the motion as to the federal claims (2) and (3)(a) and denied it without
prejudice as to the state law claims (1) and (3)(b).
demonstrates good cause for his failure to update the court with a current address as directed.”
(Case No 7:15CV00380, ECF No. 30). Davis made no such motion in the time allotted.
On September 15, 2016, the court received a letter from Davis, asking about the status of
his case. The clerk’s office resent him copies of the dismissal opinion and order. Davis then
filed a motion in the closed case, dated September 19, 2016, seeking reinstatement of the case.
He stated that he had been released from prison unexpectedly on an unspecified date and “all of
the paperwork pertaining to his complaint was lost upon his release.” (Case No 7:15CV00380,
ECF No. 35.) He also stated that he was “extremely indigent” after his release and believed, in
error, that because he was on probation, the prison would forward his mail to “his address of
record.” (Id.) The court found no basis for reinstatement, stating:
The court concludes that Davis’ motion omits critical facts necessary for him to
show good cause for his failure to provide the court with his address
“immediately” after his release from confinement. He does not provide the date
of his release, preventing the court from calculating the number of weeks or
months that he waited before his first inquiry with the court about the status of his
case. He also fails to explain how or why he lost his case number and documents,
and he states no reason whatsoever that he was unable to mail the court an address
update. His belief that the prison would forward his mail to his address of record
because of his probation status does not excuse his failure to send that address to
the court immediately after his release, as directed. Based on this record, the
court cannot find that dismissal of the action for failure to prosecute was
erroneous or that reinstatement is warranted.
(Case No 7:15CV00380, ECF No. 42.) For the reasons stated, the court denied Davis’ motion to
On March 21, 2017, the court received a new pro se § 1983 complaint from Davis,
raising the same claims against Raines. 3 (Case No. 7:17CV00107, ECF No. 1.) Raines has
waived service of process and filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Davis has responded, making the matter ripe for consideration.
The court notes that at the time Davis filed this new and separate civil action, he was again
incarcerated and is currently confined at Indian Creek Correctional Center.
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. See,
e.g., Bell Atl. Corp. v. Twombly, 553 U.S. 544, 553-63 (2007). In ruling on such a motion, the
court accepts the factual allegations of the complaint as true, but may also consider facts of
which it properly takes judicial notice. See Brooks v. Arthur, 626 F.3d 194, 200 (4th Cir.
2010). 4 In particular, the court may properly take notice of facts from a prior judicial proceeding
to address a defendant’s res judicata defense if it does not involve disputed factual issues. Id.
“Under res judicata, a final judgment 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.”
Cromwell v. Cnty. of Sac, 94 U.S. 351, 597 (1948). The doctrine of
res judicata serves as a bar to a subsequent litigation only when the prior
judgment was returned by a court of competent jurisdiction, when the prior
judgment was a final judgment on the merits, when the same parties and their
privies are involved in both suits, when the two actions are based on the same
issues and material facts and when the two proceedings present the same cause of
United States v. Mumford, 630 F.2d 1023, 1027 (4th Cir. 1980).
Rule 41(b) provides that a defendant may move for dismissal of a civil action for the
plaintiff’s failure to prosecute or comply with court orders or applicable civil rules. “Unless the
court in its order for dismissal otherwise specifies, a dismissal under [under Rule 41(b)] and any
dismissal not provided for in this rule . . . operates as an adjudication upon the merits” except in
limited circumstances not present in Davis’ case. Fed. R. Civ. P. 41(b). In other settings, courts
have held that for res judicata purposes, a prior judgment that does not address the merits of the
underlying claims, but dismisses the action with prejudice “is a complete adjudication of the
The court has, throughout this opinion, omitted internal quotation marks, alterations, and citations.
issues presented by the pleadings and is a bar to a further action between the parties.” Harrison
v. Edison Bros. Apparel Stores, Inc., 924 F.2d 530, 534 (4th Cir. 1991).
Conversely, however, a dismissal without prejudice “operates to leave the parties as if no
action had been brought at all.” Dove v. CODESCO, 569 F.2d 807, 809 n. 3 (4th Cir. 1978).
Dismissal without prejudice does not support a subsequent res judicata challenge. See, e.g.,
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990) (“[D]ismissal . . . without prejudice
is a dismissal that does not operat[e] as an adjudication upon the merits under Rule 41(a)(1), and
thus does not have a res judicata effect.”); Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554,
566 (7th Cir. 1984) (“by definition,” neither res judicata nor collateral estoppel arise from a
dismissal without prejudice).
Whether to dismiss an action with or without prejudice is
ordinarily within the court’s discretion. Carter v. Norfolk Comm. Hosp. Ass’n, 761 F.2d 970,
974 (4th Cir. 1985).
Raines argues that Davis is barred by res judicata from litigating his current claims
against Raines, based on the dismissal of Davis’ prior § 1983 action raising the same claims.
Specifically, Raines contends: “The Judgment of December 8, 2016, was also a final judgment
on the merits pursuant to Rule 41(b)” because it “entered a dismissal but did not state that the
dismissal was without prejudice.” Mem. Supp. Mot. Dism. 5, ECF No. 14 (citing Nagle v. Lee,
807 F.2d 435, 437 (5th Cir. 1987) (holding that federal court’s failure to state in dismissal order
that dismissal is “with prejudice” does not prevent that dismissal from being an adjudication on
the merits, and thus dismissal with prejudice).
The record does not support this defense argument. The docket in the prior case reflects
only one dismissal order, entered on July 1, 2016, and that order states:
“this action is
DISMISSED without prejudice, pursuant to Fed. R. Civ. P. 41(b).” (Case No. 7:15CV00380,
ECF No. 32.) In the accompanying memorandum opinion, the court advised Davis that he could
resume pursuing his claims in Case No. 7:15CV00380 if he filed a motion to do so within 30
days and provided good reasons for his failure to update his mailing address. Davis allowed this
time period to pass, however. Two and a half months after the dismissal, Davis filed a motion in
the closed case, asking for reinstatement of Case No. 7:15CV00380 in order to pursue his claims
against Raines. The court denied that motion by order entered December 8, 2016, and the case
remained dismissed without prejudice. In no respect did the December 8 order reopen Case No.
7:15CV00380 or change the court’s July 1 dismissal order from dismissal of Davis’ claims
“without prejudice” to dismissal of those claims “with prejudice.” The July 1, 2016, order
dismissing Case No. 7:15CV00380 without prejudice had no res judicata effect. Cooter, 496
U.S. at 396. Rather, it left Davis free to pursue his claims against Raines in a new and separate
civil action “as if no [prior] action had been brought at all.” Dove, 569 F.2d at 809 n. 3.
For the reasons stated, the court concludes that defendant’s motion to dismiss must be
denied. If he files no motion for summary judgment within 30 days from entry of this order, the
matter shall be set for trial. An appropriate order will issue this day.
The clerk will send a copy of this memorandum opinion and the accompanying order to
ENTER: This 11th day of December, 2017.
/s/ Glen E. Conrad
Senior United States District Judge
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