Tunga v. Quin ( 1995 )

USCA1 Opinion

          July 12, 1995

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT











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        No. 94-2237



                                 DR. AMARENDRA TUNGA,



                                Plaintiff, Appellant,



                                          v.



                             PROF. LOUIS D. QUIN, ET AL.,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Michael A. Ponsor, U.S. District Judge]



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                                        Before



                                Torruella, Chief Judge,
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                          Selya and Boudin, Circuit Judges.
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            Dr. Amarendra Tunga on brief pro se.
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            Joyce  A.  Kirby,  General  Counsel,  U.  of  Mass.,  and  Special
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        Assistant Attorney  General, and Deirdre Heatwole,  Associate Counsel,
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        U. of Mass., on brief for appellees.





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                 Per Curiam.   Dr. Amarendra Tunga  filed similar actions
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            in  state and federal court complaining of the termination of



            his  temporary appointment  as  a visiting  scientist at  the



            University of  Massachusetts at  Amherst.  Some  months after



            the  state  court  suit  was dismissed,  the  district  court



            dismissed the instant action (1) on claim preclusion grounds,



            (2) for failure to  state a claim, and (3)  because plaintiff



            had  not   adequately  justified  his  failure   to  file  an



            opposition to  defendants' motion to  dismiss.  As  the first



            rationale  provides  ample  support  for  the  court's action



            (especially now that plaintiff's  appeal from the state court



            judgment has been dismissed), we affirm on that basis alone.



                 Little discussion  is required.   A federal  court "must



            give preclusive effect to state court judgments in accordance



            with state law,"  Mulrain v.  Board of Selectmen  of Town  of
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            Leicester, 944 F.2d 23, 25 (1st  Cir. 1991); we thus look  to
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            Massachusetts res judicata principles.  In Isaac v. Schwartz,
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            706 F.2d 15 (1st  Cir. 1983), we summarized those  principles



            as follows:



                 Massachusetts  courts  apply  res  judicata   in  a

                 perfectly traditional manner.   That is to say, the

                 doctrine prevents the  relitigation of "issues that

                 were  or could have  been dealt with  in an earlier

                 litigation."    The  entry  of a  valid  and  final

                 judgment on the merits "extinguishes ... all rights

                 of  a plaintiff to  remedies against  the defendant

                 with respect to all or any part of the transaction,

                 or series  of connected transactions,  out of which

                 the complaint arose."

                      ....



































                 ....    In Massachusetts,  as  elsewhere,  a second

                 claim  is barred  "even  though  the  plaintiff  is

                 prepared  in  the  second  action  ...  to  present

                 evidence,  grounds, or  theories  of  the case  not

                 presented in the  first action ...."   The issue is

                 "not  whether  the  plaintiff in  fact  argued  his

                 [civil  rights] claims in the state proceeding, but

                 whether he could have."



            Id. at 16-17 (citations  omitted); accord, e.g., Willhauck v.
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            Halpin, 953 F.2d 689, 704-05 (1st Cir. 1991).
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                 The  instant case clearly falters under these standards.



            Indeed, the  state and  federal complaints (both  as amended)



            are virtually verbatim copies of one another--to the point of



            sharing the  same typographical  errors.   Plaintiff protests



            that the respective legal theories diverge, in that his state



            action focused on slander while the federal action advanced a



            host of civil rights and constitutional claims.  Even if true



            (and the language of the complaints indicates otherwise), all



            such allegations "grow[] out of the same transaction, act, or



            agreement and seek[] redress for the same wrong."  Mackintosh
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            v.  Chambers, 285 Mass. 594, 596 (1934) (quoted in Isaac, 706
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            F.2d at  17).   Plaintiff's suggestion that  claim preclusion



            does not apply  in civil  rights actions is  mistaken.   See,
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            e.g., Mulrain,  944 F.2d at 25.   And contrary to his further
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            assertion, "a dismissal for failure  to state a claim,  under



            Mass. R. Civ.  P. 12(b)(6),  operates as a  dismissal on  the



            merits,  see  Mass. R.  Civ. P.  41(b)(3), with  res judicata
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            effect."  Isaac, 706 F.2d at 17.
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                 Affirmed.
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