13 -41 84

MacKinno n v. Ci ty

of New York / Hu m an Resources A dm inistratio n



## U N IT E D S T A T E S C O U RT O F A P P E A L S F O R T H E S E C O N D C IRC U IT 

# S U M M A R Y O R D E R
RULING S BY SUM M ARY ORDER DO NOT HAVE PRECEDENT IAL EFFECT. CITAT ION TO A SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 20 07 , IS PERM ITT ED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32 .1 AND THIS COURT’S LOCAL RULE 32 .1. 1. WHEN C IT IN G A SUM M ARY ORDER IN A DOC U M EN T F ILED WITH THIS COURT, A PARTY M UST CITE EIT HER THE FEDERAL APPENDIX OR AN ELE CTRONIC DATABASE (WITH THE NOTA TI O N “SUM M ARY ORDER”) . A PARTY CITI NG TO A SUM M ARY ORDER M UST SERVE A CO PY O F IT ON ANY PAR TY NOT REPRESENTE D B Y COU NSEL.

At a stated te rm of the United States Court of A ppeals for the Second Circuit, held at the Thurg ood Marsha ll United States Courthouse, 40 Foley Square, in the City

of Ne w York, on the 14 day of Oc tober, two thousand f ourtee n. t h PRES ENT: ROSEMARY S. P OOL ER,

REENA RAGGI , PETER W . HAL L , Circuit Judges.

_____________________________________ J ohn A. Mac Kinnon, Plaintif f-Appellant 13-4184
v. City of Ne w York / Huma

n Resource s Administration, Defendant- Appellee
.

_____________________________________ FOR PLAI

NTI FF -APPEL LANT: J ohn A. Mac Kinnon, pro se, L acka waxen, PA Appea l from a judg ment and orde r of the United States District Court for the Southern District of Ne w York ( Preska, C.J. ).UP ON DUE CONSIDERATION, IT IS HEREB Y ORDERED, ADJUD GED, A ND

DECREED that the judg ment of the district cour t is AF F IRMED
. Appellant John MacKinnon, proce edingpro se, a ppeals fr om the district court’s judg ment dismiss ing his c omplaint as barr ed by the doctrine of re s judicata. We assume the parties’ familiarity

with the underly

ing f acts, the pr ocedur al history of the c ase, a

nd the issues on appe al. A district court ha s the inhere nt authority to dismi ss an ac tion that “lacks a n arguable basis either in lawor in fac t,” Neitzke v. W illiams , 490 U.S. 319, 325 (1989), re g ardle ss of whether the plaintiff has pa id the filing f ee, see Fitzgerald v. F

irst E. Seventh St. Tenants Corp. , 221 F.3d 362, 363–64 ( 2d Cir. 2000). Whil e this Court has y et to decide whether it reviews a district court’s sua sponte dism issal of a com plaint pursuant to its inherent authority de novo or for a n abuse of

discretion, see F

itzgerald , 221 F.3d at 364 n.2, in this case , the district court’s decision “e asily

passes m uster [e ven] under the m ore r ig orous de novo revie w ,” id
. Under the doctrine of re s judicata, or c laim prec lusion, a “final judgment on the merits of
an ac tion preclude s the parties or their privies fr om relitigating issues that we re or could have been r aised in that ac tion.” Fede rated Dep’ t Stores, Inc. v . Moitie , 452 U.S. 394, 398 (1981). Res judicata “ applies in later litig ation if an e arlier decision wa s (1) a

final judg ment on the merits, (2) by a cour t of compete nt jurisdiction, (3) in a ca se involving the same pa rties or their privies, and (4) involving the same ca use of a ction.” Hec ht v. United Collection Bureau, Inc

. , 691 F.3d 218, 221–22 (2d Cir. 2012) (c itation omit ted). “ Even c laims based upon diffe rent leg al theorie s
are barr ed provide d they

arise f rom the same tr ansac tion or occur renc e.” Cieszkowska v. Gray Line N.Y

. , 295 F.3d 204, 205 ( 2d Cir. 2002) (citation omitted). MacKinnon admits that his present claims arise from the same eve nts that were at issue in his prior litigation. He argues, howe ver, that his claims should notbe bar red be causethey

wer e 

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raised in the pr ior ac tion, but never fina lly adjudicate d. This assertion is not borne out by the re cord. N one of Ma cKinnon’s pr esent c laims were expli citly raised in his ea

rlier a ction, and to the extent that any

of them we re implied in his arguments to the court, they wer e ca ref ully addre ssed. The district c ourt thus properly deter mined that res judicata bar s MacKinnon’ s prese nt claims. MacKinnon’s asser tion that the district court err ed by dismiss ing his c laims sua sponte is likewise without merit. We have r egularly upheld a district cour

t’s authority

to dismi ss sua sponte a pro se complaint on res judicata grounds. See Salahuddin v. J ones , 992 F.2d 447, 449 (2d Cir. 1993) (holdingthat failure of a de fenda nt to raise re s judicata in an a nswer doe s not deprive a cour

t of power

to dismi ss claim on that g round). Although a district cour t should not dismiss a pro se complaint without gr antingleave to amend, leave is not nece ssary when it would be futile. See Cuoc o v. Moritsugu , 222 F.3d 99, 112 ( 2d Cir. 2000). As discussed above , the district court prope rly dismiss ed Mac Kinnon’s complaint. Although it did not g rant him leave to amend, it is clear that any attempt to re-ple ad would have been f utile. The problem with his complaint “is substantive; better ple adingwill not cure it.” Id
. He se eks to re- litigate c laims alrea dy adjudicate d, or else to a ssert new leg al theorie s based upon the same ope rative f

acts at issue in his prior action. We theref ore a ffirm substantially

for the
rea sons set forth by

the district court in its thoroug h and we ll-rea soned orde r dismissing MacKinnon’s action as ba rre d by res judica

ta. Acc ording ly , we AF F IRM the judg ment of the district cour t. FOR THE COURT: Catherine O ’Ha g an Wolfe, Clerk



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