The opinion of the court was delivered by: Berman, District Judge.
Plaintiff Pro Se, Anthony Bryant, has sued the United States of
America, the Internal Revenue Service ("IRS"), Special IRS Agent
Philip Cousin, and Assistant United States Attorneys Andrew J.
Kameros and I. Bennett Capers (collectively, the "Defendants")
for allegedly conspiring, under color of Federal law, to deprive
him of his civil and constitutional rights and for causing him
physical and mental anguish. The Defendants, on July 13, 1998,
moved to dismiss the action on several grounds, including lack of
subject matter jurisdiction
under Fed.R.Civ.P. 12(b)(1), improper service of process under
Fed.R.Civ.P. 12(b)(5), and failure to state a claim under
Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary
judgment under Fed.R.Civ.P. 56. For the reasons stated below,
the Defendants' motion is granted and the complaint is
On or about March 21, 1995, Plaintiff was arrested for
violation of 22 U.S.C. § 7206(2), which makes it unlawful, in
substance, to willfully aid or assist in the preparation of a
fraudulent return, affidavit, or document, in any matter arising
under the Internal Revenue laws. He was released, pending trial,
on a $75,000 personal recognizance bond, secured by $5,000 cash,
and was required to participate in weekly supervision by the U.S.
Probation Office. Two weeks after Plaintiff's arrest, an
anonymous caller informed Agent Cousin that the Plaintiff was
preparing to flee the country. After verifying the caller's
information, Agent Cousin obtained a bench warrant with the
assistance of U.S. Attorney I. Bennett Capers, based upon the
incorrect assumption that Plaintiff was in violation of his bond
conditions for having failed to "surrender his travel
documents".*fn1 At a bond revocation hearing held on April 17,
1995, among other things, evidence was presented to the U.S.
Magistrate Judge that a plane ticket had been purchased in
Plaintiff's name by an unidentified woman who paid in cash.
Finding that Plaintiff posed a "flight risk", the Magistrate
Judge revoked bond and Plaintiff was detained pending trial
pursuant to 18 U.S.C. § 3142 et seq. ("[T]his combination of
evidence, which is far more than what we normally have when
making bail determinations, is sufficient . . . to meet the
Government's burden". Transcript of Bond Revocation Hearing at
92, United States v. Bryant (S.D.N.Y. 1995) (No. CR-95-240)).
Claiming that Defendants had conspired to obtain the bench
warrant by lying about his bond status (i.e. his purported
obligation to surrender travel documents) and that Defendants
sought to deprive him of his Constitutional rights and ruin him
financially, Plaintiff, in 1996, filed a (prior) complaint in
this Court. Bryant v. United States, No. 97 civ. 3620 (S.D.N Y
May 19, 1997) (Griesa, C.J.). In Bryant, Chief Judge Thomas P.
Griesa dismissed the complaint under 28 U.S.C. § 1915(e)(2),*fn2
finding that the Defendants were immune from civil liability and
that the Plaintiff's claims lacked "an arguable basis either in
law or in fact". Id. (quoting Neitzke v. Williams,
490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). Judge Griesa's
decision was affirmed by the Second Circuit Court of Appeals
which found that the appeal was "indisputably lacking in merit"
and frivolous. Bryant v. United States, No. 97-2373 (2d Cir.
The instant complaint is almost identical to Plaintiff's
previous complaint which, as noted, was dismissed by Judge
Griesa. Both pleadings make the same claims arising out of the
same events. The instant complaint merely adds certain facts to
the prior complaint and names two additional Defendants, i.e.
Assistant U.S. Attorneys Andrew J. Kameros and I. Bennett
The Defendants assert that the principles of res judicata or
claim preclusion bar the Plaintiff from bringing this action.
Claim preclusion is a fundamental
rule of law that serves a vital public interest by ensuring a
definitive end to litigation. See Federated Department Stores,
Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d
103 (1981) ("The doctrine of res judicata serves vital public
interests beyond any individual judge's ad hoc determination of
the equities in a particular case."); Hart Steel Co. v. Railroad
Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 61 L.Ed. 1148
(1917). There is simply no rule of law which permits a Federal
court to reject this well established doctrine. See Moitie, 452
U.S. at 401, 101 S.Ct. 2424; Heiser v. Woodruff, 327 U.S. 726,
733, 66 S.Ct. 853, 90 L.Ed. 970 (1946). Claim preclusion means
that a final judgment on the merits of an action prevents the
parties or their privies from initiating subsequent litigation
arising out of the same transaction or series of transactions.
See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 476, 118
S.Ct. 921, 139 L.Ed.2d 912 (1998); Moitie, 452 U.S. at 398, 101
S.Ct. 2424. See also Baker v. General Motors Corp.,
522 U.S. 222, 238 n. 5, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998); Maharaj v.
Bankamerica Corp., 128 F.3d 94 (2d Cir. 1997); National Labor
Relations Board v. United Technologies Corp., 706 F.2d 1254,
1259 (2d Cir. 1983). The preclusive effect maintains even if the
previous judgment was incorrect or based upon a legal principle
subsequently overruled in another case.*fn4 See Moitie, 452
U.S. at 398, 101 S.Ct. 2424; Chicot County Drainage Dist. v.
Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 84 L.Ed. 329
(1940). See also C.I.R. v. Sunnen, 333 U.S. 591, 597, 68 S.Ct.
715, 92 L.Ed. 898 (1948), where the Court found that "absent
fraud or some other factor invalidating the judgment", a judgment
ends the litigation over a particular cause of action.
A determination of whether claim preclusion applies requires an
analysis of several factors, including the parties involved in
both actions, the transaction or transactions giving rise to both
actions, and the judgment in the previous action.*fn5 All of the
parties to the current action except Assistant U.S. Attorneys
Kameros and Capers were parties in the first action. This is not
a material difference since, as Federal employees, Assistant U.S.
Attorneys Kameros and Capers were "arms" or agents or privies of
the prior case Defendants.*fn6
The previous claim by Plaintiff arose from the issuance of a
bench warrant, his arrest, as well as the subsequent change of
his bond status to "remand" status. Plaintiff's current claim
arises from the same series of events or transactions and, of
necessity, involves the same issues and evidence. It should be
noted that it has been held that even where a subsequent claim
asserts additional facts or legal theories not included in the
first claim, claim preclusion, nevertheless, bars relitigation of
issues that "were or could have been raised in [the first]
action". Moitie, 452 U.S. at 397, 101 S.Ct. 2424. The
additional facts asserted here, e.g. quotations from the letter
requesting a bench warrant, etc., do not alter the result that
the current claim arises from the same transaction or
transactions as the prior claim.
The Plaintiff's prior claim(s) were dismissed by Judge Griesa
under 28 U.S.C. § 1915(e)(2) on the basis that the claims "lack
an arguable basis either in law or in fact". Bryant v. United
States, No. 97 Civ. 3620 (quoting Neitzke, 490 U.S. at 325,
109 S.Ct. 1827). Judge Griesa also found that the Defendants were
immune from liability, i.e. as governmental agencies,
prosecutors acting within their official duties, and as a witness
testifying in a court proceeding. Judge Griesa's determination
was "final" under 28 U.S.C. § 1915(e)(2), particularly
subsections § (B)(ii) and (B)(iii) thereof, which provide for
dismissal where the action fails to state a claim for which
relief can be granted or where the action seeks monetary relief
against a defendant who is immune from such relief.*fn7
Dismissal for failure to state a claim for which relief can be
granted is a final judgment on the merits. See Moitie, 452 U.S.
at 399 n. 5, 101 S.Ct. 2424.*fn8 Dismissal based upon the
Defendants' immunity, under 28 U.S.C. § 1915(e)(2)(B)(iii), is
also final and precludes the instant claim. See Underwriters
Nat. Assur. Co. v. North Carolina Life and Acc. and Health Ins.
Guar. Ass'n, 455 U.S. 691, 706, 102 S.Ct. 1357, 71 L.Ed.2d 558
Lastly, the Plaintiff claims this action should not be barred
because of the decision in Kalina v. Fletcher, 522 U.S. 118,
118 S.Ct. 502, 139 L.Ed.2d 471 (1997). In that case, the Supreme
Court held that a prosecutor was not immune from liability under
42 U.S.C. § 1983 for making false statements of fact in an
affidavit supporting a request for an arrest warrant. Id. at
131, 118 S.Ct. 502. But Kalina has no bearing upon the
application of claim preclusion here. See Moitie, 452 U.S. at
398, 101 S.Ct. 2424; Chicot County, 308 U.S. at 376, 60 S.Ct.
317. Since the Plaintiff here had a full and fair opportunity to
present his case before a court of competent jurisdiction and to
appeal that decision to the Court of Appeals, he cannot, under
Moitie, collaterally attack the prior dismissal by Judge Griesa
by bringing the instant action. See Bryant v. United States,
For the reasons stated above, the Defendants' motion is
granted, and the complaint is dismissed. The Clerk is
respectfully requested to ...