ALD-023 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 15-2205

___________ PATRICK OKEY, Appellant

v. CPT DANIEL STREBIG; WARDEN DOLL

___________________ _________________ On Appeal from the United States District Court for the Middle Distri ct of Pennsylvania (D.C. Civil No. 1-14-cv-01203) District Judge Honorable Sylvia H. Rambo

___________________ _________________ Submitted for Possible Dismissal Purs uant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Under Third Ci rcuit LAR 27.4 and I.O.P. 10.6 October 22, 2015 Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges (Opinion filed: October 29, 2015)

_________ OPINION *

_________ PER CURIAM

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Pro se appellant Patrick Okey appeals from the judgment of the United States District Court for the Middle District of Pe nnsylvania in his civil rights case. As the appeal lacks any arguable basis in law or f act, we will dismiss it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
I. As a threshold matter, we note that we have previously summa rily affirmed the District Court’s dismissal of a virtually iden tical action filed by Patr ick Okey in 2013. See Okey v. Strebig, 531 F. App'x 212 (3d Cir.), cert. deni ed, 134 S. Ct. 446 (2013). Okey, proceeding pro se and in forma pauperis, brought a co mplaint under 42 U.S.C. § 1983 alleging Eighth Amendment and Fourte enth Amendment violations. The U.S. Marshals were charged with effecting servi ce on Defendants Strebi g and Doll on July 9, 2014. When no response was forthcoming, Okey filed a re quest for default on August 18, 2014. The defendants filed a motion to dismiss on September 8, 2014, and filed a brief in support, arguing that res judicata (hereafter referred to as “claim preclusion”) applied to bar Okey’s case. Okey then filed a motion fo r default judgment, which the Court denied. The Court subsequently gran ted the defendants’ motion to dismiss on the ground that claim preclusion barred Okey from bringing his claims a second time.
II. The District Court had jurisdiction pursua nt to 28 U.S.C. § 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court’s decision to dismiss an appeal base d on claim preclusion. See Elkadrawy v.3 Vanguard Grp., Inc., 584 F.3d 169, 172 (3d Cir. 2009). For a party to win on the basis of claim preclusion, the party must establish that there has been “(1) a final judgment on the merits in a prior suit;” (2) in volving the same parties or pa rties standing in the same shoes; and (3) a subsequent su it based on the same claim or claims. Elkadrawy, 584 F.3d at 172-73 (citing Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991)). The District Court correctly found that each of these elem ents is satisfied and that, as a result, Okey’s seco nd suit is barred by claim preclusion. In Okey’s first suit, filed in 2013, the District Court issued a final judgment on the mer its. First, the District Court dismissed most of Okey’s claims for failure to state a claim, except for his Eighth Amendment claim against Defend ant Strebig. The District Court granted Okey thirty days to amend this remaining claim, and he failed to do so. The District Court then dismissed the case with prejudice for failure to state a claim under § 1915(e)(2)(B)(ii). Okey brought both cases agains t Defendants Strebig and Doll, 1 alleging violations under 42 U.S.C. § 1983. In the firs t case, Okey argued that Defendant Strebig violated Okey’s Eighth Amendment rights by fa iling to intervene in a prison fight and failing to protect Okey from injury. Okey also argued in th e first case that Defendant Doll had violated Okey’s Fourteenth Amendment due process ri ghts by failing to hear Okey’s grievances regarding his administrative segregation. He made these exact arguments in the second

1 Initially, Okey included a “Cor poral Laso” in his initial comp laint, but quickly dropped this defendant from the suit.4 case. The District Court also correctly de nied leave to amend because granting such leave would have been futile. For the reasons stated above, we will dismiss the appeal as frivolous under § 1915(e)(2)(B)(i). In light of our disposition, Okey’s moti on for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).