13-4184
    MacKinnon v. City of New York / Human
    Resources Administration


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    14th day of October, two thousand fourteen.

    PRESENT:
                ROSEMARY S. POOLER,
                REENA RAGGI,
                PETER W. HALL,
                      Circuit Judges.
    _____________________________________

    John A. MacKinnon,

                              Plaintiff-Appellant
                                                                   13-4184

                     v.

    City of New York / Human Resources
    Administration,

                              Defendant-Appellee.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                 John A. MacKinnon, pro se, Lackawaxen, PA

            Appeal from a judgment and order of the United States District Court for the Southern

    District of New York (Preska, C.J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant John MacKinnon, proceeding pro se, appeals from the district court’s judgment

dismissing his complaint as barred by the doctrine of res judicata. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

       A district court has the inherent authority to dismiss an action that “lacks an arguable

basis either in law or in fact,” Neitzke v. Williams, 

, 325 (1989), regardless of

whether the plaintiff has paid the filing fee, see Fitzgerald v. First E. Seventh St. Tenants Corp.,

, 363–64 (2d Cir. 2000). While this Court has yet to decide whether it reviews a

district court’s sua sponte dismissal of a complaint pursuant to its inherent authority de novo or

for an abuse of discretion, see 

n.2, in this case, the district court’s

decision “easily passes muster [even] under the more rigorous de novo review,” 

doctrine of res judicata, or claim preclusion, 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.” Federated Dep’t Stores, Inc. v. Moitie, 

, 398 (1981). Res

judicata “applies in later litigation if an earlier decision was (1) a final judgment on the merits,

(2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies,

and (4) involving the same cause of action.” Hecht v. United Collection Bureau, Inc., 

, 221–22 (2d Cir. 2012) (citation omitted). “Even claims based upon different legal theories

are barred provided they arise from the same transaction or occurrence.” Cieszkowska v. Gray

Line N.Y., 

, 205 (2d Cir. 2002) (citation omitted).

       MacKinnon admits that his present claims arise from the same events that were at issue in

his prior litigation. He argues, however, that his claims should not be barred because they were


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actually raised in the prior action, but never finally adjudicated. This assertion is not borne out by

the record. None of MacKinnon’s present claims were explicitly raised in his earlier action, and

to the extent that any of them were implied in his arguments to the court, they were carefully

addressed. The district court thus properly determined that res judicata bars MacKinnon’s present

claims.

          MacKinnon’s assertion that the district court erred by dismissing his claims sua sponte is

likewise without merit. We have regularly upheld a district court’s authority to dismiss sua

sponte a pro se complaint on res judicata grounds. See Salahuddin v. Jones, 

, 449

(2d Cir. 1993) (holding that failure of a defendant to raise res judicata in an answer does not

deprive a court of power to dismiss claim on that ground). Although a district court should not

dismiss a pro se complaint without granting leave to amend, leave is not necessary when it would

be futile. See Cuoco v. Moritsugu, 

, 112 (2d Cir. 2000).

          As discussed above, the district court properly dismissed MacKinnon’s complaint.

Although it did not grant him leave to amend, it is clear that any attempt to re-plead would have

been futile. The problem with his complaint “is substantive; better pleading will not cure it.” 

to re-litigate claims already adjudicated, or else to assert new legal theories based upon

the same operative facts at issue in his prior action. We therefore affirm substantially for the

reasons set forth by the district court in its thorough and well-reasoned order dismissing

MacKinnon’s action as barred by res judicata.

          Accordingly, we AFFIRM the judgment of the district court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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