United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATION
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
Wayne Kellberg, appearing pro se in this action, filed a
motion to proceed in forma pauperis under 28 U.S.C. §
1915(a). He also filed his complaint.
district court has discretion to deny leave to proceed in
forma pauperis under section 1915(a) “if it appears
from the face of the proposed complaint that the action is
frivolous or without merit[, ]” i.e. lacking any
arguable basis in fact or law. Minetti v. Port of
Seattle, 152 F.3d 1113, 1115 (9th Cir. 1998).
complaint Kellberg identifies Defendant Ricky Shelbourne as a
supervisor employed by the FBI. For his statement of claims
Kellberg simply states “slandering fairness pain &
suffering”. (Doc. 2 at 6.) Kellberg does not present
further facts supporting his allegations.
Kellberg is proceeding pro se the Court must construe his
pleading liberally, and the pleading is held “to less
stringent standards than formal pleadings drafted by
lawyers[.]” Haines v. Kerner, 404 U.S. 519,
520 (1972). See also Neitzke v. Williams,
490 U.S. 319, 330 n.9 (1989). In view of the required liberal
a district court should grant leave to amend even if no
request to amend the pleading was made, unless it
determines that the pleading could not possibly be cured by
the allegation of other facts.
Lopez v. Smith, 203 F.3d 1122, 1127 (9th
Cir. 2000) (emphasis added) (quoting Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995)).
even with liberal construction of Kellberg's pleading,
the Court finds his allegations against Shelbourne fail to
state any claim upon which relief could be granted as
required by Fed.R.Civ.P. 8(a). He does not present facts
describing what Shelbourne did, or failed to do, that would
subject him to liability under any legal theory.
the Court concludes this action is barred under the doctrine
of res judicata. Although a federal court must be cautious in
raising a preclusion bar sua sponte, it is appropriate to do
so in special circumstances. Arizona v. California,
530 U.S. 392, 412 (2000).
[I]f a court is on notice that it has previously decided the
issue presented, the court may dismiss the action sua sponte,
even though the defense has not been raised. This result is
fully consistent with the policies underlying res judicata:
it is not based solely on the defendant's interest in
avoiding the burdens of twice defending a suit, but is also
based on the avoidance of unnecessary judicial waste.
Arizona, at 412 (quoting United States v. Sioux
Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J.,
dissenting)). “As a general matter, a court may, sua
sponte, dismiss a case on preclusion grounds ‘where the
records of that court show that a previous action covering
the same subject matter and parties had been
dismissed.'” Headwaters, Inc. v. United States
Forest Service, 399 F.3d 1047, 1054-55 (9th
Cir. 2005) (quoting Evarts v. W. Metal Finishing
Co., 253 F.2d 637, 639 n.1 (9th Cir.1958)).
Thus, where judicial resources have previously been spent on
the resolution of a particular prior case, special
circumstances can be found warranting the court's sua
sponte application of res judicata to a subsequent attempt to
relitigate the same case. Cf. Arizona, at 412-413,
and Headwaters, Inc. at 1056-57.
Court has notice of the facts and circumstances of
Kellberg's prior civil actions filed in this Court, each
of which were captioned as Kellberg v. Ricky
Shelbourne, Supervisor FBI, and filed in cause
numbers CV 18-176-M-DLC-JCL (Kellberg I), CV
18-204-M-DLC-JCL (Kellberg II), and CV
19-37-M-DLC-JCL (Kellberg III). This Court expended
judicial resources addressing the merits of Kellberg's
claims pled against Defendant Ricky Shelbourne in
Kellberg I, Kellberg II, and
Kellberg III. On November 29, 2018, and February 8,
2019, respectively, the Court entered an order and a judgment
dismissing Kellberg I and Kellberg II. And
on February 28, 2019, the Court entered its recommendation
that Kellberg III also be dismissed as barred by res
Kellberg now seeks to commence a new lawsuit against
Shelbourne which asserts the same unsupported claims he
presented in Kellberg I, Kellberg II, and
Kellberg III. Thus, any relitigation of
Kellberg's same prior claims would be inconsistent with
the dispositions in the three prior cases, and it would be a
waste of judicial resources to again adjudicate claims
stemming from the same claims as were presented in the three
prior cases. Therefore, the Court finds it is appropriate to
raise the doctrine of res judicata sua sponte.
judicata, or claim preclusion, provides that “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 (1980). Res judicata is
applicable when (1) the prior litigation and the present
action involve the same claims, or when the two cases have an
“identity of claims;” (2) a final judgment on the
merits was entered in the prior litigation; and (3) there
exists privity ...