Carlton Eugene Hooker, Jr. v. Secretary, Department of Veteran Affairs

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13311
Non-Argument Calendar
____________________
CARLTON EUGENE HOOKER, JR.,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF VETERAN
AFFAIRS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02557-KKM-JSS
____________________
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2 Opinion of the Court 21-13311
Before R OSENBAUM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Carlton Hooker, Jr., proceeding
pro se, appeals the district
court’s dismissal of his employment action against the Department
of Veteran Affairs (VA) as barred by
res judicata. Hooker argues
that the district court erred when it determined that his claims were
barred by
res judicata because his prior case was dismissed for
failure to state a claim, which he contends means that there was no
final judgment on the merits. The VA moves separately for
damages and costs pursuant to Federal Rule of Appellate
Procedure 38, arguing that sanctions are appropriate because
Hooker is a serial litigator and his appeal is blatantly frivolous.
After review, we affirm the district court, and we deny the VA’s
request for sanctions at this time.
We review
de novo the district court’s determination that a
claim is barred by
res judicata.
See Jang v. United Tech. Corp., 206
F.3d 1147, 1149 (11th Cir. 2000).
Res judicata “bar[s] a subsequent
action if: (1) the prior decision was rendered by a court of
competent jurisdiction; (2) there was a final judgment on the
merits; (3) the parties were identical in both suits; and (4) the prior
and present causes of action are the same.”
Id. (quotation omitted).
“[I]f a case arises out of the same nucleus of operative facts, or is
based upon the same factual predicate, as a former action, . . . the
two cases are really the same ‘claim’ or ‘cause of action’ for
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21-13311 Opinion of the Court 3
purposes of
res judicata.”
Griswold v. Cnty. of Hillsborough, 598
F.3d 1289, 1293 (11th Cir. 2010) (quotation omitted).
In 2020, Hooker filed the underlying complaint against the
VA alleging employment retaliation and discrimination related to
a position he applied for in 2017. The VA moved to dismiss the
claims based on
res judicata. Court records reveal that Hooker
raised the same employment retaliation and discrimination claims
against the VA in a prior 2018 case, and those claims were dismissed
with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim.1 Contrary to Hooker’s argument on
appeal, a dismissal with prejudice pursuant to Rule 12(b)(6) is an
adjudication on the merits.
Lobo v. Celebrity Cruises, Inc., 704
F.3d 882, 893 (11th Cir. 2013). Therefore, the district court
correctly determined that Hooker’s underlying employment
discrimination and retaliation claims were barred by
res judicata.2
Accordingly, we affirm the district court’s dismissal.3
1 As noted by the VA in its motion for sanctions, Hooker has a lengthy history
of litigation against the VA dating back to 2011.
2 To the extent that Hooker sought to raise new facts or additional arguments
in his 2020 complaint related to the alleged employment discrimination,
res
judicata still applied.
See Maldonado v. U.S. Att’y Gen., 664 F.3d 1369, 1377
(11th Cir. 2011) (explaining that “
[r]es judicata acts as a bar not only to the
precise legal theory presented in the previous litigation, but to all legal theories
and claims arising out of the same operative nucleus of fact.” (quotation
omitted)).
3 Hooker’s motion requesting oral argument is DENIED. Additionally,
Hooker argues for the first time in his reply brief that the district court
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4 Opinion of the Court 21-13311
We now turn to the VA’s motion for sanctions. Federal Rule
of Appellate Procedure Rule 38 provides that, upon a
determination that an appeal is frivolous, an appellate court may,
“after a separately filed motion or notice from the court and
reasonable opportunity to respond, award just damages and single
or double costs to the appellee.” “Rule 38 sanctions have been
imposed against appellants who raise clearly frivolous claims in the
face of established law and clear facts.”
Farese v. Scherer, 342 F.3d
1223, 1222 (11th Cir. 2003) (quotation omitted). However,
generally, where, as here, the appellant is
pro se, we have declined
requests to impose sanctions under Rule 38.
See Woods v. I.R.S.,
3 F.3d 403, 404 (11th Cir. 1993);
Hyslep v. United States, 765 F.2d
1083, 1084–85 (11th Cir. 1985). Nevertheless, we have made
exceptions and imposed sanctions against
pro se appellants who
were attorneys themselves or who were explicitly warned by the
district court that their claims were frivolous.
See, e.g.,
United
States v. Morse, 532 F.3d 1130, 1132–33 (11th Cir. 2008) (imposing
sanctions on
pro se appellant who had been warned in the district
court that his tax claims were “utterly without merit”);
Bonfiglio v.
Nugent, 986 F.2d 1391, 1394–94 (11th Cir. 1993) (imposing
sanctions on a
pro se appellant who was also an attorney);
Pollard
erroneously struck his motion for relief from judgment under Federal Rule of
Civil Procedure 60. Because he raises this argument for the first time in his
reply brief, we do not reach this issue.
Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008) (“[W]e do not address arguments raised for the first time in a
pro se litigant’s reply brief.”).
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21-13311 Opinion of the Court 5
v. Comm’r, 816 F.2d 603, 604–05 (11th Cir. 1987) (imposing
sanctions on
pro se appellant who brought tax claims that were
determined to be frivolous in a previous suit, and for which
appellant had been sanctioned).
Although this appeal is frivolous, none of the special
circumstances for awarding sanctions against a
pro se party exist in
this case. There is no indication that Hooker is an attorney.
Further, even though Hooker is a serial litigant and continues to
bring unsuccessful suits against the VA, many of the prior suits
highlighted in the VA’s motion for sanctions pre-date the 2017
employment discrimination claims he sought to bring in the case
below. Regardless, Rule 38 is not meant to sanction a litigant for
past vexatious litigation. Rather, the focus of Rule 38 is on whether
the present appeal is frivolous.
See Fed. R. App. P. 38. Because of
Hooker’s
pro se status, we exercise the discretion afforded us by
Rule 38 and decline to impose sanctions at this time.
See Woods,
3 F.3d at 404 (“There can be no doubt that this is a frivolous appeal
and we would not hesitate to order sanctions if appellant had been
represented by counsel. However, since this suit was filed pro se,
we conclude that sanctions would be inappropriate.”). However,
we caution Hooker that any future challenges based on this same
set of facts will be deemed frivolous and subject to sanctions.
AFFIRMED. MOTION FOR SANCTIONS DENIED.
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