    19-1848
    Jackson v. Connecticut Dep’t of Public Health


                            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 ASUMMARY 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 25th day of February, two thousand twenty.

    PRESENT:
                AMALYA L. KEARSE,
                RICHARD J. SULLIVAN,
                JOSEPH F. BIANCO,
                      Circuit Judges.
    _____________________________________

    Beverly Jackson,

                                 Plaintiff-Appellant,

                       v.                                                           19-1848

    Connecticut Department of Public Health,
    Raul Pino, Adrienne Anderson,


                                 Defendants-Appellees.

    _____________________________________


    FOR PLAINTIFF-APPELLANT:                             Beverly Jackson, pro se, Norwalk, Connecticut.

    FOR DEFENDANTS-APPELLEES:                            William Tong, Attorney General, Claire Kindall,
                                                         Solicitor General, Daniel Shapiro, Assistant
                                                         Attorney General, Hartford, Connecticut.
        Appeal from a judgment of the United States District Court for the District of Connecticut

(Shea, J.).


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

DECREED that the judgment of the district court is AFFIRMED.

        Appellant Beverly Jackson, proceeding pro se, appeals the district court’s judgment

dismissing her 42 U.S.C. § 1983 complaint. Jackson sued the Connecticut State Department of

Health (“DPH”), its Commissioner, and a DPH employee, alleging that the Connecticut medical

board had issued a cease and desist order that violated her First Amendment right to practice her

religion, which she calls “Nedicine.” The district court dismissed the complaint, ruling that the

DPH was immune from suit and that Jackson’s claims against the remaining defendants were

barred by res judicata in light of her prior action, Jackson v. Connecticut Department of Public

Health, D. Conn. 15-cv-750; 2d Cir. 16-2282 (“Jackson I”). In Jackson I, Jackson sued the DPH,

its Commissioner, and a DPH employee, alleging that the DPH was investigating her for practicing

medicine without a license, which interfered with her right to practice her profession, Nedicine.

The district court dismissed Jackson I for failure to state a claim, and this Court dismissed

Jackson’s appeal as lacking an arguable basis in law or fact. We assume the parties’ familiarity

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

        In reviewing a district court’s dismissal pursuant to Federal Rule of Civil Procedure

12(b)(1), we review legal conclusions de novo, and any fact finding for clear error. Makarova v.

United States, 201 F.3d 110, 113 (2d Cir. 2000). We review de novo the district court’s ruling on




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res judicata and its dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). TechnoMarine

SA v. Giftports, Inc., 758 F.3d 493, 498 (2d Cir. 2014).

       The district court correctly held that Jackson’s claims against the DPH, a state agency, must

be dismissed on sovereign immunity grounds.             See Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 100 (1984) (holding Eleventh Amendment bars a suit against the State

or its agencies, “regardless of the nature of the relief sought”). On appeal, Jackson argues that the

State’s immunity was abrogated by the Lanham Act, and that it is not immune because this is an

in rem action. She is incorrect. First, Jackson did not raise a Lanham Act claim in this action,

but, in any event, that Act did not abrogate the State’s immunity. See Coll. Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 691 (1999) (holding Congress had not

validly abrogated State’s immunity from suit under the Lanham Act, and immunity barred

trademark claim against a State). Moreover, the caselaw Jackson cites about in rem actions is

inapposite. She filed a complaint asserting a First Amendment violation, not an in rem action.

See Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 364 (2d Cir.

1995) (explaining that “an in rem action is an action against the arrested res itself and any judgment

is thus limited to the value thereof or the value of the bond or stipulation substituted for the res to

obtain its release” (quotation marks omitted)).

       As to the individual defendants, the district court properly dismissed the complaint as

barred by res judicata. 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., 691 F.3d 218, 221-22 (2d Cir. 2012) (quotation marks omitted). This doctrine bars

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the re-litigation of claims that “were, or could have been, brought in an earlier litigation.” Bank

of New York v. First Millennium, Inc., 607 F.3d 905, 919 (2d Cir. 2010).

       All elements are met here. Jackson I was dismissed with prejudice for failure to state a

claim, a decision on the merits, and the district court was a court of competent jurisdiction. See

Berrios v. New York City Hous. Auth., 564 F.3d 130, 134 (2d Cir. 2009) (reasoning a “dismissal

for failure to state a claim is a final judgment on the merits and thus has res judicata effects”).

The defendants in this action were either also sued in Jackson I or were in privity with the Jackson

I defendants. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“As long as the government

entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects

other than name, to be treated as a suit against the entity.”).

       Jackson’s brief contests only the last element of the res judicata analysis, arguing that she

could not have raised her First Amendment claim until after Jackson I was decided. Jackson,

however, does not explain why she could not have raised her First Amendment claim in Jackson

I, or what happened after Jackson I that gave rise to her First Amendment claim. In this action,

Jackson frames her claim as a right to practice her religion, as opposed to the right to practice her

profession that she asserted in Jackson I. But at the time she filed Jackson I, the facts essential to

her First Amendment claim were already present: she was a Nedicine practitioner, and the DPH

had warned her that her practice of Nedicine constituted the unlawful practice of medicine. See

Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992) (explaining that, for res judicata

purposes, it “is this identity of facts surrounding the occurrence which constitutes the cause of

action, not the legal theory upon which [the plaintiff] chose to frame her complaint”). Nothing



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prohibited Jackson from raising her First Amendment claim then, and her failure to do so is fatal

to her later case.

        We have considered all of Jackson’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.


                                            FOR THE COURT:
                                            Catherine O=Hagan Wolfe, Clerk of Court




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