15-1376-cv
Steuerwald v. Cleveland, et al.


                            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 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
8th day of June, two thousand sixteen.

Present:
            PETER W. HALL,
            GERARD E. LYNCH,
            DENNY CHIN,
                        Circuit Judges.
____________________________________________________

JOHN STEUERWALD,

                              Plaintiff-Appellant,

               v.                                                           No. 15-1376-cv


RICHARD CLEVELAND, ET AL.,

                        Defendants-Appellees.
_____________________________________________________

For Plaintiff-Appellant:                             John Steuerwald, pro se, Alburgh, Vermont.



For Defendants-Appellees:                 Nancy G. Sheahan, Kevin J. Coyle, McNeil,
                                          Leddy & Sheahan, P.C., Burlington,
                                          Vermont.
____________________________________________________
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       Appeal from a judgment of the United States District Court for the District of Vermont

(Murtha, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED.

       Appellant John Steuerwald, proceeding pro se, appeals the district court’s order

dismissing his 42 U.S.C. § 1983 complaint.           We assume the parties’ familiarity with the

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

       On appeal, Steuerwald challenges only the district court’s conclusion that res judicata

barred his claims against Officer Richard Cleveland. Because he has raised no other issues on

appeal, he has waived any other challenges to the district court’s order. See LoSacco v. City of

Middletown, 71 F.3d 88, 92 (2d Cir. 1995) (holding that issues not raised in pro se appellate brief

are considered abandoned).

       We review de novo the district court’s application of res judicata principles. Computer

Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997). “[A] federal court must give to

a state-court judgment the same preclusive effect as would be given that judgment under the law

of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ.,

465 U.S. 75, 81 (1984); accord O’Connor v. Pierson, 568 F.3d 64, 69 (2d Cir. 2009). In

Vermont, res judicata will preclude a claim from being litigated “if (1) a previous final judgment

on the merits exists, (2) the case was between the same parties or parties in privity, and (3) the

claim has been or could have been fully litigated in the prior proceeding.”            Iannarone v.

Limoggio, 190 Vt. 272, 279 (2011) (internal quotation marks omitted); see also Carlson v. Clark,

185 Vt. 324, 331 (2009) (“[U]nder the doctrine of claim preclusion, a final judgment in previous




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litigation bars subsequent litigation if the parties, subject matter, and cause(s) of action in both

matters are the same or substantially identical.” (internal quotation omitted)).

       Here, an independent review of the record and relevant case law reveals that the district

court properly dismissed Steuerwald’s claims against Cleveland as barred by res judicata. We

affirm for substantially the reasons stated by the district court in its thorough March 31, 2015

decision. In brief, the 2013 state court judgment cited by the district court was a final judgment

on the merits, Steuerwald and Cleveland were the parties in both cases, and Steuerwald either did

litigate, or could have fully litigated, his claims against Cleveland in the prior state court

proceeding. See Iannarone, 190 Vt. at 279.

       On appeal, Steuerwald challenges the district court’s conclusion that the 2013 state court

judgment was a final judgment on the merits.          He asserts that the 2013 state action was

voluntarily dismissed without prejudice and, thus, there was no final judgment on the merits.

Steuerwald’s arguments are unpersuasive. The 2013 state court judgment did not state whether

the dismissal was with or without prejudice, nor did it address Steuerwald’s request, made in

opposition to Cleveland’s motion to dismiss for failure to state a claim, to voluntarily dismiss the

action without prejudice. That judgment, nevertheless, constituted a judgment on the merits

because it granted Cleveland’s motion to dismiss for failure to state a claim pursuant to Rule

12(b)(6) of the Vermont Rules of Civil Procedure.

       Vermont Rule 12(b)(6) mirrors Federal Rule of Civil Procedure 12(b)(6). Compare

V.R.C.P. 12(b)(6) (“[T]he following defenses may at the option of the pleader be made by

motion: . . . (6) failure to state a claim upon which relief can be granted.”), with Fed. R. Civ. P.

12(b)(6) (“[A] party may assert the following defenses by motion: . . . (6) failure to state a claim

upon which relief can be granted.”). The Vermont Supreme Court has held that “the dismissal of



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[a] complaint under V.R.C.P. 12(b)(6) for failure to state a claim . . . operates as a final

adjudication on the merits.” Judd v. State, No. 2011-350, 2012 WL 1305003, at *2 (Vt. Mar. 15,

2012) (unpublished) (citing Exch. Nat’l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126,

1130–31 (2d Cir. 1976) (recognizing that “judgments under [Federal Rule of Civil Procedure]

12(b)(6) are on the merits, with res judicata effects”)).

       The state court judgment’s silence regarding whether the dismissal was with or without

prejudice does not alter this result. The effect of a dismissal under Vermont Rule 12(b)(6) is

governed by Vermont Rule 41(b)(3), which provides as follows: “Unless the court in its order

for dismissal otherwise specifies, . . . any dismissal not provided for in this rule, other than a

dismissal for lack of jurisdiction, for improper venue, or for failure to join a party . . . , operates

as an adjudication upon the merits.” Because the state court judgment dismissed Steuerwald’s

action under Vermont Rule 12(b)(6) and did not specify otherwise, it is an adjudication on the

merits. See Judd, 2012 WL 1305003, at *2 (concluding, based on Vermont Rule 41(b)(3), that

dismissal of complaint pursuant to Vermont Rule 12(b)(6) was adjudication on the merits where

court order did not specify otherwise).

       Steuerwald’s argument—that the state court’s judgment was dismissed without prejudice

because, in denying leave to amend, the state court determined that his malicious prosecution

claim was not ripe—is also meritless. Even if his malicious prosecution claim was not ripe,

Steuerwald did not assert a claim for malicious prosecution in his federal complaint. Thus,

whether his malicious prosecution claim was ripe is irrelevant to the state court judgment’s

preclusive effect on the claims he sought to litigate in federal court.

       Similarly unavailing is Steuerwald’s argument that the district court should have

permitted him to amend his complaint. Steuerwald had already been given an opportunity to



                                                  4
amend, and any additional amendment of his claims against Cleveland would have been futile

because those claims were barred by res judicata. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d

Cir. 2000) (pro se plaintiff should generally be granted at least one opportunity to amend where

repleading would not be futile).

       We have considered all of Steuerwald’s arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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