Chadwick Jashawn NEAL, Plaintiff-Appellant, v. Megan C. DAVIS; Rick Silver; Johnny Johnson; and Steve Johnson, Defendants-Appellees.
No. 12-5005.
United States Court of Appeals, Tenth Circuit.
April 6, 2012.
Agricultural relies on this reasoning to argue that Oklahoma law would apply equitable subrogation broadly enough to permit a subrogee to assert a claim that its subrogor has already released. And, in an unreported case, the Northern District of Oklahoma appears to have permitted an insurer to pursue an equitable subrogation claim against another insurer, notwithstanding that the second insurer had previously obtained a release from the insured. See Fed. Ins. Co. v. Sw. Wire Cloth, Inc., No. 95-C-689-K, 1999 WL 33544427, at *3, *5 (N.D.Okla. Feb. 8, 1999) (unreported).
IV. PROCEDURAL ORDERS IMPLEMENTING CERTIFICATION
We appreciate the Oklahoma Supreme Court‘s consideration of our certified question. And we recognize that, if the Oklahoma Supreme Court accepts this certified question, it may, “[p]ursuant to
The clerk of this court [shall] transmit a copy of this certification order to the parties and [] forward a copy of this order, together with the parties’ briefs (which also display the names and addresses of counsel of record, see
Pino, 507 F.3d at 1238. We also direct the clerk of this court to transmit a copy of this certification order to the Clerk of the United States District Court for the Northern District of Oklahoma, attention case No. 4:05:-CV-00126-GKF-TLW. See Ball v. Wilshire Ins. Co., 498 F.3d 1084, 1086 (10th Cir. 2007). “The treatment of any costs associated with the certification proceedings should be as prescribed by
Pursuant to Tenth Circuit Rule 27.1(A)(2), we stay this appeal pending the Oklahoma Supreme Court‘s consideration of this certification request and, if the request is accepted, pending the Oklahoma Supreme Court‘s resolution of the certified question. See Randall, 450 F.3d at 1117. If the Oklahoma Supreme Court accepts our certified question, the parties are directed to notify this court when the Oklahoma Supreme Court enters a final order resolving this question.
Chadwick J. Neal, Atoka, OK, pro se.
Before LUCERO, O‘BRIEN, and MATHESON, Circuit Judges.
ORDER AND JUDGMENT*
CARLOS F. LUCERO, Circuit Judge.
Chadwick Neal appeals the dismissal of his
I
Neal, who appears pro se, is incarcerated at the Howard McLeod Correctional Facility in Atoka, Oklahoma. In May 2010, Neal filed a federal civil rights lawsuit in state court based on events that allegedly occurred while he was in custody at the county jail. Neal asserted that he sustained a serious eye injury during an assault by another inmate and that jail officials denied him adequate medical care. As a result, Neal alleges, he is now blind in his left eye.
The state court dismissed Neal‘s complaint on August 15, 2011. The court provided three reasons for doing so: First, the court concluded that Allen failed to “have summonses issued and served in a timely manner” without demonstrating “good cause for [his] failure.” Second, the court found that Allen “failed to state a claim” that was “plausible on its face” or rose “above a speculative level.” Finally, the court found that the defendants were “entitled to qualified immunity in their individual capacities.” In conclusion, however, the county court stated that it was granting the defendant‘s motion to dismiss for “insufficient service of process,” for “failure to state a claim upon which relief could be granted,” and “for lack of subject matter jurisdiction.”
On October 6, 2011, Neal filed the present suit in federal district court against the same defendants based on the same events. The district court concluded that res judicata barred Neal‘s claims and dismissed his suit. Neal now appeals.
We review the lower court‘s dismissal de novo and liberally construe Neal‘s pro se filings. Martinez v. Garden, 430 F.3d 1302, 1303 (10th Cir. 2005). “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.” Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980). There is no question that Neal litigated the same issues against the same defendants in his state court suit that he now seeks to litigate in federal court. Instead, Neal argues that claim preclusion does not apply because the state court dismissed his prior action for lack of subject matter jurisdiction.
Neal is correct that a dismissal for lack of subject matter jurisdiction by an Oklahoma state court does not have claim preclusive effect in a subsequent federal case. Indep. Sch. Dist. No. 1 v. Scott, 15 P.3d 1244, 1248 (Okla. Civ. App. Div. 2000); see also Brady v. UBS Fin. Servs., 538 F.3d 1319, 1327 (10th Cir. 2008). He is mistaken, however, in his assertion that the state court did not have jurisdiction to decide his
Although its opinion is lacking in detail, we surmise that the state court erroneously assumed that qualified immunity, like sovereign immunity, is jurisdictional in nature. See FDIC v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994). But qualified immunity is a defense on the merits, not a jurisdictional bar. See Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Accordingly, the state court dismissal order has preclusive effect whether it dismissed Neal‘s complaint for failure to state a claim or on qualified immunity grounds. The federal district court was therefore correct to dismiss the present complaint as res judicata.
III
We AFFIRM. Appellant is reminded he must continue making partial payments until the filing fees are paid in full.
CARLOS F. LUCERO
Circuit Judge