F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                          June 29, 2005
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT                        PATRICK FISHER
                                                                              Clerk


 AUTRY LEE JONES,

       Plaintiff-Appellant,

 v.                                                    No. 04-1265
                                                    (D.C. No. 04-Z-414)
 U.S. DEPARTMENT OF JUSTICE,                             (D. Colo.)
 JOHN ASHCROFT,
 JANET RENO,
 KATHLEEN HAWK,
 FEDERAL BUREAU OF PRISONS,
 FEDERAL PRISON INDUSTRY
 (UNICOR),
 RICHARD P. CALTRON, and
 BRYAN R. MOON,

       Defendants-Appellees.



                           ORDER AND JUDGMENT



Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      Plaintiff Autry Lee Jones worked until early 1999 as a prisoner employee at

the United States Penitentiary (“USP”) in Florence, Colorado. He alleges he was

fired based on a citation for “insolence towards staff” that was later expunged

from his record by an administrative board. Subsequently, in 2003, Jones filed a
suit against the same defendants as those in the case at bar (except John Ashcroft

and Janet Reno) alleging that he was fired because of defendants’ racial animus.

The court in that action dismissed Jones’ claims against the Department of

Justice, the Bureau of Prisons, and Federal Prison Industries (a.k.a. UNICOR) on

the grounds of sovereign immunity, and dismissed his claims against the

individual defendants for failure to state a claim. In December 2004, Jones filed

the instant action, a pro se prisoner complaint under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 

(1971), alleging that

Defendants Federal Prison Industries (a government corporation, also known as

UNICOR), Hawk (Director of the Federal Bureau of Prisons), Caltron (assistant

warden of USP Florence), Moon (director of a prisoner-staffed factory at USP

Florence), and Martinez (factory foreperson) treated Jones more harshly than they

treated other similarly situated prisoners. 1

      The district court dismissed this claim under the broad doctrine of res

judicata, concluding that the dismissals in the 2003 action had preclusive effect in

the instant action. We apply a de novo standard of review to questions of res

judicata. May v. Parker-Abbott Transfer & Storage, 

, 1009 (10th

Cir. 1990). For substantially the same reasons as the district court, we exercise



      1
        Jones raised an unrelated claim below that was dismissed. He does not
raise that issue on appeal.

                                           2
jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

      The district court determined that Jones’ action was precluded because the

issues and claims presented in the second action had already been litigated in his

2003 suit, Jones v. U.S. Dep’t of Justice, No. 02-M-2056 (D. Colo. filed Sept. 24,

2003). We agree.

      We first address Jones’ claims against the individual defendants, which

were dismissed for failure to state a claim in Jones’ 2003 action. Because Jones’

instant action brings the same claims based on the same conduct, we must

determine whether claim preclusion applies. 2 In order for Jones’ claims against

the individual defendants to be barred under claim preclusion, four factors must

be present:

          (1) the prior suit must have ended with a judgment on the merits; (2)
          the parties must be identical or in privity; (3) the suit must be based
          on the same cause of action; and (4) the plaintiff must have had a
          full and fair opportunity to litigate the claim in the prior suit.

Nwosun v. Gen. Mills Rests., Inc., 

, 1257 (10th Cir. 1997).


      2
         Claim preclusion, a particular type of res judicata, is an affirmative
defense barring the same parties from litigating a second lawsuit on the same
claim, or any other claim arising from the same transaction or series of
transactions and that could have been raised in the first suit. It is distinguished
from issue preclusion, a doctrine barring a party from relitigating an issue
determined against that party in an earlier action, even if the second action differs
significantly from the first one. Thus, “the principal distinction between claim
preclusion and issue preclusion is . . . that the former [can foreclose] litigation of
matters that have never been litigated.” Charles Alan Wright, The Law of Federal
Courts § 100A, at 723 (5th ed. 1994).

                                            3
      The first requirement for claim preclusion is met as concerns the individual

defendants. In the 2003 action, the district court dismissed Jones’ claims against

them for failure to state a claim. A dismissal for failure to state a claim is a

decision on the merits. Osborn v. Shillinger, 

, 617 (10th Cir. 1988).

Therefore, the district court’s dismissal of these defendants satisfies the first

prong of our analysis.

      As to Nwosun’s second factor, the parties whose actions give rise to Jones’

second claim (the only one here appealed) are identical to the parties in his 2003

suit. Jones does not allege that Ashcroft and Reno, the only new defendants, were

involved in the actions giving rise to his second claim.

      Additionally, the third Nwosun prong is met. The cause of action in which

the suit is based is the same in both of Jones’ suits despite the fact that in his

2003 suit Jones alleged that Defendants’ actions were based on racial animus,

whereas here his claim of differential treatment does not have a racial component.

We use the “transaction approach” to define a cause of action. See 

. “Under this approach, a cause of action includes all claims or legal

theories of recovery that arise from the same transaction, event, or occurrence.”

Jones alleges in this action arise from the same occurrence (his

firing from the prison factory) as the claims he asserted in his 2003 suit.

      Finally, Jones’ instant suit satisfies the fourth Nwosun prong, requiring a


                                            4
full and fair opportunity to litigate. His 2003 claims were properly considered by

the district court, and his appeal was terminated under Fed. R. App. P. 42,

“Voluntary Dismissal.” To have claim-preclusive effect, Nwosun requires only

that litigants have a “full and fair opportunity” to pursue their cases, not that the

cases be fully litigated. Where litigants themselves terminate an action, we

cannot conclude that they did not have a full opportunity to proceed. Any other

conclusion would permit litigants to bring the same suit ad infinitum as long as

they had begun and then withdrawn an appeal.

      As to the district court’s dismissal of the institutional defendants (the

Department of Justice, the Bureau of Prisons, and UNICOR) on sovereign

immunity grounds, the doctrine of issue preclusion is applicable. “[I]ssue

preclusion bars a party from relitigating an issue once it has suffered an adverse

determination on the issue, even if the issue arises when the party is pursuing or

defending against a different claim.” Park Lake Res., Ltd. Liab. Co. v. U.S.

Dep’t of Agric., 

, 1136 (10th Cir. 2004). The doctrine requires that

      (1) the issue previously decided is identical with the one presented in
      the action in question, (2) the prior action has been finally
      adjudicated on the merits, (3) the party against whom the doctrine is
      invoked was a party, or in privity with a party, to the prior
      adjudication, and (4) the party against whom the doctrine is raised
      had a full and fair opportunity to litigate the issue in the prior action.

v. Cotter Corp., 

,1198 (10th Cir. 2000)). First,

in the prior action, it was determined that Jones was barred from filing suit

                                           5
against the Department of Justice, Bureau of Prisons, and UNICOR on the

grounds of sovereign immunity. This same issue is implicated in the current

controversy. Therefore, the first prong of the issue preclusion analysis is met.

      Second, we must address whether the prior dismissal on sovereign

immunity grounds constituted a final adjudication on the merits. “Sovereign

immunity is jurisdictional in nature.” F.D.I.C. v. Meyer, 

, 475

(1994). However, a dismissal on jurisdictional grounds does not constitute a

judgment on the merits for purposes of issue preclusion. Park 

; see also Fed. R. Civ. P. 41(b) (“a dismissal . . . other than a dismissal for

lack of jurisdiction . . . operates as an adjudication upon the merits.”) (emphasis

added). We would be “mistaken, however, in asserting that a jurisdictional

dismissal can have no issue-preclusive effect. There is an important exception to

the general rule that a final adjudication on the merits is a prerequisite to issue

preclusion.” Park 

. Under that exception, “dismissals for

lack of jurisdiction preclude relitigation of the issues determined in ruling on the

jurisdiction question.” 

and quotations omitted).

      Therefore, the district court’s dismissal of Jones’ 2003 action against the

Department of Justice, Bureau of Prisons, and UNICOR on sovereign immunity

grounds bars him from attempting to relitigate that issue determined as a

consequence of the jurisdictional ruling against him, and the second prong of Park


                                          6
Lake is satisfied. Likewise, as in the analysis we conducted for the individual

defendants, we conclude the rest of the necessary issue preclusion factors are met.

Consequently, Jones is equally barred from relitigating his issues against the

named federal agencies.

      For the foregoing reasons, Jones’ second claim was barred by the broad

principles of res judicata. Under both the doctrines of claim preclusion and issue

preclusion, he cannot relitigate the claims and issues determined against him in

the 2003 action. The district court’s dismissal is AFFIRMED and Jones’ motion

to proceed in forma pauperis is GRANTED. 3



                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge




      3
        After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.

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