Walker v. Lankford

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-01006-GPG-CYC
ARTHUR WALKER,
Plaintiff,
v.
LANKFORD,
Defendant.
______________________________________________________________________________
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge.
Defendant Brandon Lankford moves to dismiss plaintiff Arthur Walker’s excessive force
and retaliation claims, contending that res judicata, otherwise known as claim preclusion, bars
those claims. ECF No. 53. Because the excessive force and retaliation claims arise out of the
same transaction alleged and dismissed with prejudice in one of the plaintiff’s previous lawsuits,
the Court recommends that the claims here again be dismissed with prejudice.
BACKGROUND
According to the Second Amended Complaint, whose allegations are taken as true for
purposes of this motion, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the defendant, a
correctional officer at the Buena Vista Correctional Facility, falsely charged the plaintiff with
assault on a correctional officer on April 2, 2021. ECF No. 10 at 4-5. The plaintiff says that, in
reality, he was the victim of the assault, and the defendant fabricated charges in retaliation for the
plaintiff having sued the defendant’s supervisor. Id. at 4. As a result, the plaintiff had to destroy
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$1,000 worth of personal property and was sent to a maximum-security prison. Id. The plaintiff
proceeded to trial on the charges the defendant brought, and a jury found him not guilty. Id. at 4.
In the meantime, the plaintiff brought the first of three lawsuits against the defendant in
this Court, of which the Court can take judicial notice in evaluating this motion. Johnson v.
Spencer, 950 F.3d 680, 704-06 (10th Cir. 2020). In Walker v. Lankford, No. 21-cv-01524-MEH
(“Walker I”), the plaintiff alleged that on April 2, 2021, the defendant assaulted him in retaliation
for a lawsuit against the defendant’s supervisor. Walker I, ECF No. 8 at 4-5. But because the
Prison Litigation Reform Act (“PLRA”) “requires the exhaustion of administrative remedies
before an incarcerated person may bring an action concerning prison conditions under 42 U.S.C.
§ 1983,” and “the unrebutted evidence” indicated that the “[p]laintiff ha[d] failed to exhaust the
required administrative remedies” then-Magistrate Judge Hegarty granted summary judgment to
the defendant. Walker I, 2022 WL 375576, at *4, 6 (D. Colo. Feb. 8, 2022).
Five months later, the plaintiff returned. Walker v. Lankford, No. 22-cv-01711-NYW-
MEH (“Walker II”), ECF No. 1. That action “relitigate[d] claims” from Walker I. Walker II,
2023 WL 11970605, at *1 (D. Colo. Apr. 6, 2023). It alleged again that on April 2, 2021, the
defendant used excessive force against the plaintiff in violation of the Eighth Amendment in
retaliation for the lawsuit against the defendant’s supervisor. Walker II, ECF No. 1 at 3-4.
Because, “as a matter of law, Plaintiff ha[d] failed to exhaust administrative remedies as required
by the PLRA,” Judge Hegarty recommended that the excessive force claim be dismissed with
prejudice. Walker II, 2023 WL 11970605, at *5. The district judge adopted that recommendation.
Walker II, 2023 WL 11970602 (D. Colo. Apr. 25, 2023). Final judgment therefore entered in
favor of the defendant. Walker II, ECF No. 45.
A year later, the defendant filed his third lawsuit against the defendant. The original
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complaint included other defendants and allegations relating to them. ECF No. 1. The defendant
was granted in forma pauperis status, ECF No. 4, and, pursuant to its obligations under 28
U.S.C. § 1915A, the Court screened the complaint, ordering certain amendments, dismissing the
other defendants, and leaving the allegations of the Second Amended Complaint described above
as the operative ones here. ECF Nos. 5, 8, 10, 15, 17. This motion followed.
ANALYSIS
The defendant seeks dismissal of the plaintiff’s claims against him alleging retaliation
and excessive force under a theory of res judicata. ECF No. 53. The motion was referred to the
undersigned for a recommendation. ECF Nos. 63, 72.
A defendant may move to dismiss a complaint under Rule 12(b)(6) for “failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[W]hen,” as here, “all
relevant facts are shown by the court’s own records, of which the court takes notice, the defense”
of res judicata “may be upheld on a Rule 12(b)(6) motion without requiring an answer.” Tri-State
Truck Ins., Ltd. v. First Nat’l Bank of Wamego, 564 F. App’x 345, 347 (10th Cir. 2014)
(unpublished) (quoting Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992)); see Johnson, 950
F.3d at 705-06 & n.9. “The federal courts have traditionally adhered to the . . . doctrine[ ] of res
judicata.” Allen v. McCurry, 449 U.S. 90, 94 (1980). That doctrine, also known as “claim
preclusion, will prevent a party from relitigating a legal claim that was or could have been the
subject of a previously issued final judgment.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831
(10th Cir. 2005). “[C]laim preclusion applies when three elements exist: (1) a final judgment on
the merits in an earlier action; (2) identity of the parties in the two suits; and (3) identity of the
cause of action in both suits.” Id. They exist here.
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A final judgment, for example, previously entered. Walker II, ECF No. 46. The parties
were the same there. Compare ECF No. 10 at 2, 4 (suing “Lankford, sargeant [sic] Buena Vista
Correctional Facility” with supervisor “Tresch”), with Walker II, ECF No. 1 at 2, 6 (suing
“Brandon Lankford, Correctional Officer Buena Vista Correctional Complex” with supervisor
“Tresch”). The first two elements, then, are satisfied, and the plaintiff does not argue otherwise.
So is the third. “In this circuit, a cause of action includes all claims or legal theories of
recovery that arise from the same transaction, event, or occurrence.” Kahler v. Walmart, Inc.,
No. 22-1136, 2023 WL 18358, at *2 (10th Cir. Jan. 2, 2023) (unpublished) (internal quotation
marks omitted). Under this “transactional approach,” “a claim arising out of the same
transaction, or series of connected transactions as a previous suit, which concluded in a valid and
final judgment, will be precluded.” Yapp v. Excel Corp., 186 F.3d 1222, 1227 (10th Cir. 1999)
(internal quotation marks omitted). What constitutes the same transaction or series of
transactions is “to be determined pragmatically, giving weight to such considerations as whether
the facts are related in time, space, origin, or motivation, whether they form a convenient trial
unit, and whether their treatment as a unit conforms to the parties’ expectations or business
understanding or usage.” Id. Accordingly, “a new action will be permitted only where it raises
new and independent claims, not part of the previous transaction, based on the new facts.” Hatch
v. Boulder Town Council, 471 F.3d 1142, 1150 (10th Cir. 2006). Here, both this case’s claims
and those in Walker II arise from the defendant’s alleged April 2, 2021 assault on the plaintiff in
retaliation for filing a grievance against the defendant’s supervisor. As such, the plaintiff’s
excessive-force and retaliation claims arise from the same “transaction, event, or occurrence” as
those he asserted in Walker II.
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The plaintiff protests. Without elaboration, he avers that Walker II somehow differs from
this case. ECF No. 58 at 1. Federal courts must construe pro se plaintiffs’ pleadings “liberally”
and hold them “to a less stringent standard than formal pleadings drafted by lawyers,” though it
is not “the proper function of the district court to assume the role of advocate for the pro se
litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). So construed, the plaintiff could
be arguing that because Walker II alleged retaliation by assault, ECF No. 58 at 12-13, whereas
this case alleges retaliation by filing false charges related to that assault, Walker II cannot
preclude the claims here. But while the plaintiff may not be “present[ing] the exact same claims
or legal theories in both cases . . . that’s not the test.” Nesmith v. Morse, No. 22-cv-03276-LTB-
GPG, 2023 WL 11922139, at *3 (D. Colo. Feb. 23, 2023), recommendation adopted, 2023 WL
11922140 (D. Colo. Mar. 23, 2023). “All that is required is that” the claims “arise ‘out of the
same transaction, or series of connected transactions as [the] previous suit.’” Hatch, 471 F.3d at
1151 (quoting Yapp, 186 F.3d at 1227) (alteration in Hatch). They do here.
Where, as here, all three res judicata elements are satisfied, the claim is precluded “unless
the party seeking to avoid preclusion did not have a full and fair opportunity to litigate the claim
in the prior suit.” MACTEC, 427 F.3d at 831 (internal quotation marks omitted). “This narrow
exception applies only where the requirements of due process were not afforded.” Lenox
MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1243 (10th Cir. 2017). To
determine such fairness, a court examines “any procedural limitations, the party’s incentive to
fully litigate the claim, and whether effective litigation was limited by the nature or relationship
of the parties.” Nwosun v. Gen. Mills Rest., Inc., 124 F.3d 1255, 1257-58 (10th Cir. 1997).
There is no indication of any procedural deficiency in Walker II to indicate that the
plaintiff was not afforded a full and fair opportunity to litigate his claims against the defendant
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arising out of the April 2, 2021 incident. In that case, after an initial review, the plaintiff was
provided an opportunity to amend his complaint but declined to do so. Walker II, ECF Nos. 6, 8,
9. Instead, he filed an “Order to Proceed,” informing the court that he was declining to amend his
complaint and instructing the court to “proceed.” Walker II, ECF No. 9. Later, after the
defendant filed his motion to dismiss in Walker II, the plaintiff did not initially file a response.
Nevertheless, Judge Hegarty sua sponte afforded the plaintiff an opportunity to respond to the
motion more than a month after the initial deadline. Walker II, ECF No. 39. The plaintiff
eventually filed a response that Judge Hegarty considered in recommending dismissal. Walker II,
ECF Nos. 41, 43. Specifically, after concluding that dismissal was appropriate for the plaintiff’s
failure to exhaust administrative remedies, Judge Hegarty recommended dismissal with prejudice
because “[n]o amendment by Plaintiff would remedy this [deficiency] because AR 850-
4(IV)(F)’s deadline for Plaintiff to file a Step 1 grievance regarding the alleged April 2, 2021
excessive force incident with Defendant has expired.” Walker II, 2023 WL 11970605, at *5. The
recommendation advised the plaintiff that he could object. Id. at *6 n.4. He did not and, after
considering the recommendation, the district judge concluded that the law was correctly applied,
adopted the recommendation, and dismissed the case with prejudice. Walker II, 2023 WL
11970602, at *1. The plaintiff therefore “had a full and fair opportunity to litigate the claim in
the prior suit.” MACTEC, 427 F.3d at 831.
Because the requisite elements of claim preclusion are satisfied, the plaintiff’s excessive
force and retaliation claims are barred. See id. The defendant does not seek dismissal of Claim
One to the extent the plaintiff alleges malicious prosecution and that he was forced to destroy
personal property, ECF No. 53 at 7 n.2, so those claims survive.
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CONCLUSION
For the foregoing reasons, the Court RECOMMENDS granting Defendant’s Motion To
Dismiss the Second Amended Complaint, ECF No. 53, and dismissing the plaintiff’s excessive
force and retaliation claims. For the same reason Judge Hegarty recommended that the Walker II
dismissal be with prejudice, see Walker II, 2023 WL 11970602, at *1 n.2, the Court also
RECOMMENDS that dismissal be with prejudice here.1
It is hereby ORDERED that to the extent Defendant’s Errata to Motion To Dismiss
Second Amended Complaint, ECF No. 71, was filed as a motion and referred to the undersigned
for consideration, ECF No. 72, it is DENIED as moot.
Respectfully submitted this 20th day of March, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
1 Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not
consider frivolous, conclusive, or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1).
Additionally, the failure to file written objections to the proposed findings and recommendations
within fourteen days after being served with a copy may bar the aggrieved party from appealing
the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by
the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply
with the District Judge’s practice standards for any specific requirements concerning the filing
and briefing of objections.
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