PS2-177                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 14-1629
                                     ___________

                                DAVID V. ALSTON,
                                            Appellant

                                          v.

          KEAN UNIVERSITY; DR. PHILIP H. WITT; SARAH D. BLOOD

                     ____________________________________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. Civil Action No. 2-14-cv-01338)
                    District Judge: Honorable Susan D. Wigenton
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 2, 2014
           Before: CHAGARES, KRAUSE and SLOVITER, Circuit Judges

                              (Filed: September 8, 2014)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      David V. Alston appeals pro se from the District Court’s order dismissing his

complaint. We will affirm.



                                           I.
       In February 2014, Alston filed a complaint in the District Court against Kean

University (“Kean”); Dr. Philip H. Witt, a psychologist employed by Kean University;

and Sarah D. Blood, a student at Kean University. He alleged that he was charged with

violating a “no contact order” with Blood, required to attend a “Student Conduct

Hearing,” and then was suspended from Kean. The hearing officer allegedly delayed

issuing a decision for 29 days and, when the decision was issued, it specified that Alston

was required to see Witt for a psychological evaluation. During the psychological

evaluation, Witt allegedly “exhibited partiality” based on the information contained in the

10-page decision letter. Alston later appealed his suspension and requested another copy

of the decision letter, as he no longer had the original. He asserts that Kean officials

rewrote the letter, “deleting all of the Hearing Officer’s silly and defamatory statements”

that formed the basis of Witt’s questions. Alston claims that Kean and Witt conspired to

violate his due process rights and engaged in libel and defamation of his character.

       The District Judge reviewed the complaint and determined that the allegations

made therein were substantially similar to allegations that Alston had raised in a separate

civil suit, D.C. Civ. No. 2:13-cv-00309, which had been dismissed without leave to

amend in June 2013. Accordingly, the District Court summarily dismissed the complaint.

Alston appeals.

                                             II.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary

review over the District Court’s dismissal of Alston’s complaint. See Tourscher v.


                                              2
McCullough, 184 F.3d 236, 240 (3d Cir. 1999). A district court must sua sponte dismiss

a complaint that is filed in forma pauperis if it determines that the action is frivolous,

malicious, fails to state a claim, or seeks damages against a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2)(B).

       A plaintiff who has received a final judgment on the merits in one action is

precluded from litigating another suit against the same parties based on the same cause of

action. See CoreStates Bank, N.A. v. Huls Am., Inc., 176 F.3d 187, 194 (3d Cir. 1999).

Whether two causes of action are identical depends, in general, on a consideration of: (1)

whether the acts complained of and the demand for recovery are the same; (2) whether

the same witnesses and documents will be necessary in the trial in both cases; and (3)

whether the material facts alleged are the same. See United States v. Athlone Indus. Inc.,

746 F.2d 977, 984 (3d Cir. 1984)

       At the time that Alston filed his complaint, he had already been denied relief in a

separate civil rights action docketed at D.C. Civ. No. 2:13-cv-00309. In that separate

complaint, as amended, he sued Kean, Witt, and Blood, and alleged that: (1) the hearing

officer intentionally delayed issuing a decision letter; (2) Kean officials libeled him; and

(3) Kean’s vice president and the Office of Student Conduct harassed him while he

waited for the results of his appeal. The District Court granted Kean and Witt’s motions

to dismiss pursuant to Rules 8 and 12 of the Federal Rules of Civil Procedure and

dismissed Alston’s state law claims against Blood for lack of subject matter jurisdiction.

In her dismissal order, the District Judge denied Alston’s motion to file a second


                                               3
amended complaint and noted that further amendment of the complaint would be futile.

We affirmed in Alston v. Kean Univ., C.A. No. 13-2733 (judgment entered Dec. 19,

2013).1

         The instant action stems from the same alleged harm caused by the same three

defendants named in D.C. Civ. No. 2:13-cv-00309, does not identify any different

defendants or harms, and was filed after the District Court had dismissed Alston’s

amended complaint without further leave to amend. The District Court therefore

properly dismissed Alston’s complaint. See CoreStates Bank, 176 F.3d at 194.

         Accordingly, we will affirm the judgment of the District Court.




1
    We also affirmed the District Court’s denial of Alston’s recusal motion.
                                               4
