BLD-023                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3113
                                       ___________

                                  JUSTIN M. HICKOX,
                                               Appellant

                                             v.

               COUNTY OF BLAIR; BLAIR COUNTY PRISON;
         MICHAEL JOHNSTON; ROSS NEGRI; JACQUELINE YOHRLING;
                     DAVID URISH; FRANCIS BAILEY
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-14-cv-00089 )
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 30, 2014

               Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                                (Filed: November 4, 2014)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant Justin Hickox brought this pro se civil rights action claiming excessive

force and deliberate indifference to his medical needs by the defendants. His claims arise

from an incident that took place in November 2010, while Hickox was incarcerated as a

pretrial detainee at Blair County Prison in Hollidaysburg, Pennsylvania. The District

Court, approving and adopting the Report and Recommendation of the Magistrate Judge,

granted the defendants’ motion to dismiss and dismissed Hickox’s complaint on res

judicata and statute of limitations grounds. Hickox appealed.

       We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over

a dismissal based on res judicata. See Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169,

172 (3d Cir. 2009). Because this appeal presents no substantial question, we will

summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       On March 18, 2011, Hickox filed a pro se civil rights complaint in the District

Court for the Middle District of Pennsylvania, which was transferred to the District Court

for the Western District of Pennsylvania. See Hickox v. Blair County, et al., W.D. Pa.

No. 11-cv-00078. In that first action, Hickox brought claims against the current

defendants for excessive force, failure to provide medical care and indifference to his

medical needs, and intentional infliction of emotional distress. Hickox alleged that on or

about November 13, 2010, he was deliberately injured by Blair County Prison corrections

officers while being moved from his cell in the general population to the Restricted

Housing Unit. Hickox also alleged that he suffers from chronic pulmonary disease, he


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had difficulty breathing during this incident, and prison staff refused to provide him with

medical care.

       After discovery, the defendants moved for summary judgment on all claims.

Hickox filed a cross-motion for summary judgment. The District Court, approving and

adopting the supplemented Reports and Recommendations of the Magistrate Judge,

granted the defendants’ motion and denied Hickox’s motion. The District Court found

that Hickox had failed to produce any evidence of excessive force, any evidence that he

had an immediate serious medical need to which the defendants had been deliberately

indifferent, or any evidence of injury as a result of the alleged refusal to provide medical

care. Judgment was entered in favor of the defendants and against Hickox on December

12, 2012. Hickox appealed the judgment to this Court, but the appeal was later dismissed

for failure to pay the filing fee. See Hickox v. County of Blair, et al., C.A. No. 12-4565

(3d Cir. Feb. 25, 2013).

         On October 30, 2013, Hickox filed the current action in the Court of Common

Pleas of Blair County, Pennsylvania, bringing substantially the same claims for excessive

force and deliberate indifference in violation of his constitutional rights, against the same

defendants named in the 2011 action, based on the same November 2010 incident and

resulting injuries. The defendants removed the action to the District Court for the

Western District of Pennsylvania on the basis of federal subject matter jurisdiction, see

28 U.S.C. §§ 1331 & 1441(a), and moved to dismiss under Federal Rules of Civil


                                              3
Procedure 8(c) and 12(b)(6), on the grounds that Hickox’s claims were barred by res

judicata and the statute of limitations.1

       The doctrine of res judicata, or claim preclusion, precludes a party from

relitigating the same claims against the same parties after those claims have already been

decided on the merits. The doctrine applies when a defendant demonstrates that “there

has been (1) a final judgment on the merits in a prior suit involving (2) the same parties

or their privies and (3) a subsequent suit based on the same causes of action.” United

States v. Athlone Indus., Inc., 746 F.2d 977, 983 (3d Cir. 1984) (citing I.A.M. Nat’l

Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946–947 (D.C. Cir. 1983); Parklane

Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979)). The doctrine bars not only claims

that were brought in a previous action but also claims that could have been brought. See

In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008).

       The District Court properly dismissed Hickox’s October 2013 complaint as barred

by the doctrine of res judicata. The judgment entered in favor of the defendants and

against Hickox by the District Court in W.D. Pa. Civ. No. 11-cv-00078 was

unquestionably a final adjudication on the merits in a suit involving the same parties.2


1
  In this Circuit, a defendant may assert a statute of limitations defense in a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) where it is apparent on the face of
the complaint that the claims are time-barred. See Robinson v. Johnson, 313 F.3d 128,
135 & n.3 (3d Cir. 2002).
2
 Hickox named Blair County Prison as a defendant in the second case and in his initial
complaint in the first case, but did not name the Prison as a defendant in his second
amended complaint in the first case, which was the operative complaint at the time of
                                             4
Furthermore, Hickox’s current complaint asserts virtually the same claims of excessive

force and deliberate indifference, based on the same underlying November 2010 incident.

See Athlone Indus., 746 F.2d at 984 (explaining that, for res judicata purposes, suits

involve the same cause of action where there is “an essential similarity of the underlying

events giving rise to the various legal claims”).

       In his opposition to the motion to dismiss, Hickox concedes that the claims are

“identical” and this matter was previously litigated and resolved in favor of the

defendants, but he argues that “new” claims preclude dismissal of his complaint. No new

claims are identified. Instead, Hickox asserts that res judicata should not apply because

the District Court’s summary judgment decision in W.D. Pa. Civ. No. 11-cv-00078 was

wrongly decided. Even assuming this were true, it is well established that an erroneous

prior judgment nonetheless has preclusive effect. See Del. River Port Auth. v. Fraternal

Order of Police, 290 F.3d 567, 576–77 (3d Cir. 2002).

       The District Court also properly dismissed Hickox’s claims as time-barred.

Claims arising under 42 U.S.C. § 1983 are subject to state statutes of limitations

governing personal injury actions. See Garvin v. City of Phila., 354 F.3d 215, 220 (3d

Cir. 2003) (noting that there is a two-year statute of limitations for such actions in



summary judgment. This variation is immaterial to our inquiry, however, as “‘res
judicata may be invoked against a plaintiff who has previously asserted essentially the
same claim against different defendants where there is a close or significant relationship
between successive defendants.’” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 966 (3d
Cir. 1991) (quoting Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir. 1972)).

                                              5
Pennsylvania); 42 Pa. Cons. Stat. Ann. § 5524. Hickox’s cause of action accrued on

November 13, 2010, the date on which he alleges he was injured by the defendants’

actions. Hickox’s current complaint was filed in October 2013, nearly a year after the

statute of limitations had expired.

       In his opposition to the defendants’ motion to dismiss, Hickox argues that the

statute of limitations should be tolled in this case because he “continues to suffer” back

pain and fear of law enforcement personnel as a result of the defendants’ 2010 actions.

However, the “continuing violation” doctrine Hickox invokes refers to “continual

unlawful acts [by the defendants], not continual ill effects from an original violation.”

Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir. 2001) (quoting Ocean Acres Ltd.

P’ship v. Dare Cnty. Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983)); see also

Montan᷃ez v. Sec’y Pa. Dep’t of Corr., --- F.3d ---, 2014 WL 5155040, at *5–6 (3d Cir.

Aug. 15, 2014, Nos. 13-1380, 13-1478).3 Accordingly, his current claims are also time-

barred.




3
  Under the continuing violation doctrine, “‘when a defendant’s conduct is part of a
continuing practice, an action is timely so long as the last act evidencing the continuing
practice falls within the limitations period.’” Montan᷃ez, 2014 WL 5155040, at *5
(quoting Cowell, 263 F.3d at 292). Hickox also alleges that the staff at Blair County
Prison – where Hickox is no longer incarcerated – “continue to assault” inmates, but does
not allege that he himself was assaulted after November 2010. Hickox does not have
standing to sue on behalf of other inmates. See Weaver v. Wilcox, 650 F.2d 22, 27 (3d
Cir. 1981).
                                              6
       We conclude that there is no substantial question presented by this appeal, and will

summarily affirm the District Court’s order granting the defendants’ motion to dismiss.

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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