Harry v. Rodriguez, (2nd Cir. 2009)
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07-4856-pr
Harry v. Rodriguez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED B Y THIS COURT'S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)." A PARTY CITING A SUM M ARY
ORDER M UST SERVE A C O PY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W H ICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFEREN CE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10 th day of July, two thousand nine.
PRESENT: REENA RAGGI,
PETER W. HALL,
Circuit Judges,
JOSEPH F. BIANCO ,
District Judge .1
ANTHONY HARRY,
Plaintiff-Appellant,
v. No. 07-4856-pr
JOSEPH RODRIGUEZ, DARREN PERKINSON,
JOSEPH ARCHIBALD, EUGENIO RAMOS, ROBERT
G. SHAW, PATRICIA DURANTE,
Defendants-Appellees.
APPEARING FOR APPELLANT: ANTHONY HARRY, pro se, Port Jervis, New
York. APPEARING FOR APPELLEES: SCOTT SHORR, Senior Counsel, for Michael A.
Cardozo, Corporation Counsel, The City of New York Law Department, New York, New York.
Appeal from the United States District Court for the Southern District of New York (Stephen C. Robinson, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on October 16, 2007, is AFFIRMED.
Pro se plaintiff Anthony Harry appeals the district court's dismissal of his complaint for excessive force on the ground of res judicata. We review the district court's 12(b)(6) dismissal of Collins's complaint de novo, see Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008), construing his pro se pleadings liberally, see Erickson v. Pardus, 551 U.S. 89, 94 (2007); Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008). We assume the parties' familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision.
Harry asserts that the district court erred in concluding that his present suit was barred by the Rule 41(b) dismissal of a former one. We are not persuaded. Harry's prior suit was resolved on the merits, see Fed. R. Civ. P. 41(b) (stating that, "[u]nless the dismissal order states otherwise," a Rule 41(b) dismissal "operates as an adjudication on the merits"); involved the same "nucleus of operative fact[s]" concerning his alleged mistreatment while incarcerated, Channer v. Dep't of Homeland Sec., 527 F.3d 275, 280 (2d Cir. 2008) (internal quotation marks omitted); and involved the same parties or those "in privity" with them, see Central Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995). This satisfies the elements of res judicata. See Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001).
While Harry contends that his prior lawsuit was improvidently dismissed, see Lewis v. Rawson, 564 F.3d 569, 575 (2d Cir. 2009), he did not appeal that judgment of dismissal, and, thus, he cannot now undo its res judicata effect by attacking it collaterally. See Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (explaining that "the res judicata consequences of a final, unappealed judgment on the merits" are not "altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case").
Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT: CATHERINE O'HAGAN WOLFE, Clerk of Court By:
1 District Judge Joseph F. Bianco of the United States District Court for the Eastern District of New York, sitting by designation.
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