     Case: 17-40578      Document: 00514266073         Page: 1    Date Filed: 12/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                    No. 17-40578                            December 8, 2017
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
KENNETH LEO BUHOLTZ, as Guardian Ad Litem, on behalf of his minor
children J.C.G. & L.S.B.,

              Plaintiff–Appellant,

v.

BART CARROLL, Individually and in his official capacity as Chief
Investigator, Texas Child Protective Services; DELIA
GUILLARMONDEGUI, Individually and in her official capacity as
Supervisor, Texas Child Protective Services; JOHN SPACIA, Individually
and in his official capacity as Commissioner, Collin County, Texas; BILLY
LANIER, Individually and in his official capacity as Deputy Sheriff, Collin
County, Texas; TERRY BOX, Individually and in his official capacity as
Sheriff, Collin County, Texas; WARREN KENNETH PAXTON, JR.,
Individually and in his official capacity as Attorney General, Texas,

              Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:16-CV-747


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 17-40578
      Kenneth Buholtz appeals the dismissal of his civil rights lawsuit, in
which he alleged that various state and local officials violated the
constitutional rights of his minor son and step-son by failing to investigate or
respond to allegations that the children’s mother was sexually abusing them.
Because Buholtz’s claims are barred by res judicata, we affirm.
                                               I
      Buholtz is a federal inmate incarcerated in Virginia. According to his
complaint, government officials received reports that Buholtz’s minor son and
step-son were being sexually abused by their mother and her friend but failed
to intervene. Buholtz alleges that Delia Guillarmondegui and Bart Carroll,
investigators for the Texas Department of Family and Protective Services
(DFPS) were informed of the allegations but dismissed or ignored them. He
also alleges that DFPS commissioner John Spacia ignored a certified letter
informing him of the investigators’ actions and that Texas Attorney General
Kenneth Paxton did not respond to repeated requests to investigate DFPS.
Additionally, Buholtz claims that Deputy Sherriff Billy Lanier had authority
to protect the children but failed to do so, and that Sheriff Terry Box failed to
respond to repeated requests to investigate Lanier. These actions, Buholtz
alleges, violated the children’s constitutional rights and warrant relief under
28 U.S.C. § 1983.
      Acting on recommendation of the magistrate judge, the district court
dismissed Buholtz’s § 1983 claims under the doctrine of res judicata. The court
reasoned that Buholtz had filed a complaint with identical factual allegations
in the United States District Court for the Eastern of District of Virginia. 1 In
that case, the court dismissed Buholtz’s § 1983 claims “for failure to state a



      1   Buholtz v. Carroll, 2016 WL 204474, at *2 (E.D. Va. Jan. 15, 2016).

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                                       No. 17-40578
claim and as legally frivolous.” 2 The district court in this case also upheld the
magistrate judge’s order denying Buholtz’s request to appoint an attorney ad
litem for the children. Buholtz timely appealed.
                                              II
       We review the district court’s dismissal of Buholtz’s § 1983 claim de
novo. 3 We review the denial of his request for appointed counsel for abuse of
discretion. 4 The district court did not err on either count.
       First, the district court correctly held that Buholtz’s § 1983 claims are
foreclosed by res judicata. Res judicata dictates 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.” 5                    Under this
doctrine, subsequent claims are barred if “(1) the prior suit involved identical
parties; (2) the prior judgment was rendered by a court of competent
jurisdiction; (3) the prior judgment was a final judgment on the merits; and
(4) the same claim or cause of action was involved in both cases.” 6                       To
determine whether the claim is the same in both cases, we evaluate whether
the cases “are based on the same nucleus of operative facts.” 7
       There is no question that Buholtz’s current complaint and previous
lawsuit involved the same parties. 8               The previous judgment was a final
judgment on the merits rendered by a court of competent jurisdiction. 9
Because the facts alleged in Buholtz’s complaint in the present case repeat


       2  Id. at *3.
       3  Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011).
        4 Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985).
        5 Allen v. McCurry, 449 U.S. 90, 94 (1980).
        6 Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 883, 898 (5th Cir. 2016)

(citing In re Ark–La–Tex Timber Co., Inc., 482 F.3d 319, 330 (5th Cir. 2007)).
        7 Id. at 899 (quoting United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007)).
        8 See Buholtz v. Carroll, 2016 WL 204474, at *2 (E.D. Va. Jan. 15, 2016).
        9 Id. (dismissing Buholtz’s § 1983 claims as “frivolous”).



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                                        No. 17-40578
verbatim the allegations in the complaint he filed in the Eastern District of
Virginia, the cases share a common nucleus of operative facts. 10 As a result
the district court correctly held that res judicata precludes Buholtz from
relitigating his claims.
      Second, the district court did not abuse its discretion by declining
Buholtz’s request for the appointment of an attorney ad litem. The magistrate
judge considered the factors for evaluating requests for appointed counsel in
civil cases 11 and denied Buholtz’s motion, in part because the law concerning
res judicata is well established and the case would likely not require the
presentation of evidence.         Construing Buholtz’s objection to the denied
appointment as a motion to reconsider, 12 the district court concluded that the
magistrate judge’s order was not clearly erroneous. Because Buholtz’s claims
are governed by well-settled legal principles, the district court did not abuse
its discretion by upholding the magistrate judge’s conclusion that the
appointment of counsel would not aid in the presentation of the case.
                                    *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      10 Id.
      11 Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
      12 See 28 U.S.C. § 636(b)(1)(a).

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