     Case: 10-60086     Document: 00511230231          Page: 1    Date Filed: 09/10/2010




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

                                                  FILED
                                                                        September 10, 2010

                                     No. 10-60086                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



EARL STEPHEN DEAN,

                                                   Plaintiff - Appellant
v.

MISSISSIPPI BOARD OF BAR ADMISSIONS; JAMES R. MOZINGO, in his
official capacity as Chairman of the Mississippi Board of Bar Admissions and in
his individual capacity; LAWRENCE C. GUNN, JR.; CRAIG M. GENO;
MILDRED JUANITA LESURE; PAUL M. LUCKETT; JENNY F. NICAUD;
JEFFREY G. PIERCE; E. BARNEY ROBINSON, III; JEFFREY A. STYRES;
PIETER TEEUWISSEN; CLYDE H. GUNN, III; H. HUNTER TWIFORD, III;
JAY PAUL CARMEAN; KAREN K. SAWYER; MICHAEL C. BAREFIELD; KAY
L. TRAPP; JOHN DOE,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:06-CV-46


Before DAVIS, SMITH, and DENNIS, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-60086   Document: 00511230231      Page: 2   Date Filed: 09/10/2010

                                  No. 10-60086

      This case arises out of the denial of plaintiff Earl Stephen Dean’s (“Dean”)
application to be admitted to the Mississippi Bar. Dean was denied entry to the
bar, first in 2002, and upon reconsideration, in 2005. Defendants – the
Mississippi Board of Bar Admissions, and its members – determined that Dean
had failed to demonstrate the requisite character and fitness for admission,
based, in part, on Dean’s misrepresentation of his criminal history and a pattern
of frivolous, retaliatory litigation. Dean first sued in Mississippi state court,
where he raised both state and federal claims challenging the denial of his
application for admission. The state courts have since reached a final judgment
on the merits, resolving that case against Dean and in favor of the defendants.
Dean also filed the instant suit in the federal district court, where he raised
claims under the Americans with Disabilities Act and 42 U.S.C. § 1983, all of
which relate to the denial of his application for admission. On defendants’
motion, the district court dismissed all of his claims as barred by res judicata.
We affirm.
                              I. BACKGROUND
We have described the facts of in our previous consideration of this case:
            Dean filed an application for admission to the Mississippi Bar
      on March 28, 2002. The Board denied Dean's application in
      accordance with the recommendations of the Committee on
      Character and Fitness (“the Committee”). At Dean's request, he
      appeared before the Board for reconsideration on April 17, 2003. On
      January 22, 2004, the Committee recommended the Board deny
      Dean's application because Dean demonstrated “an inclination to be
      dishonest, an inclination to take unfair advantage of others, an
      inclination to fail to exercise self-control, and an inclination to be
      mentally or emotionally unstable to the extent that he was not
      suited to the practice of law.”

             The Committee conducted a second hearing on August 25,
      2005, and the Board denied Dean's application for admission again
      on September 22, 2005. Dean timely appealed the Board's decision
      to the Chancery Court of Hinds County, Mississippi, on October 24,

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   2005. The Chancery Court affirmed the Board's decision on
   August 23, 2006, and Dean appealed to the Mississippi Supreme
   Court. The appeal to the Mississippi Supreme Court was pending at
   the time of both district court opinions, but an opinion was issued
   on January 17, 2008.

         On February 8, 2006, while the appeal of the Board's decision
   was pending in the Chancery Court, Dean filed suit in the Southern
   District of Mississippi alleging violations of the ADA and 42 U.S.C.
   § 1983 against the Board and its individual members. Judge Louis
   Guirola, Jr. sua sponte dismissed the case for lack of subject matter
   jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). Relying upon
   District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486
   (1983), for the proposition that “[f]ederal courts do not have
   jurisdiction over challenges to state court decisions in particular
   cases arising out of judicial proceedings,” but that federal courts do
   have jurisdiction over “general challenges to state bar rules...which
   do not require review of a final state court judgment in a particular
   case,” Judge Guirola concluded that because Dean's claims
   challenge an individual finding and not the Mississippi Bar
   admissions rules generally, the district court lacked jurisdiction
   over Dean's claim.

          On May 17, 2006, Dean filed a second suit in the Southern
   District of Mississippi against Mozingo for prospective and
   injunctive relief from the operation of Mississippi attorney licensing
   rules. Also relying upon Feldman, 460 U.S. at 486, the district court
   found that it lacked subject matter jurisdiction “over challenges to
   state court decisions in particular cases arising out of judicial
   proceedings even if those challenges allege that the state court's
   action was unconstitutional.” Finding that Dean's allegations,
   although couched in general terms, are “inextricably intertwined
   with the denial of his application to practice law,” Judge Wingate
   also dismissed Dean's case sua sponte for lack of subject matter
   jurisdiction.

         Judge Wingate also considered Mozingo's arguments for
   dismissal raised by his motion to dismiss and motion for summary
   judgment under the abstention doctrine of Younger v. Harris, 401
   U.S. 37 (1971), and pursuant to claim and issue preclusion. Finding
   that “Younger and its progeny establish a strong policy against


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                                  No. 10-60086

      federal court interference with certain pending state proceedings
      absent extraordinary circumstances,” the district court agreed with
      Mozingo that abstention, given the pending state proceedings, was
      appropriate. The district court . . . also granted summary judgment
      on claim and issue preclusion.

            On appeal, Dean challenge[d] both district courts' rulings.

Dean v. Miss. Bd. of Bar Admissions, 326 F. App’x 760, 760-762 (5th Cir. 2009).
      While the prior appeal was pending in this case, the Mississippi Supreme
Court rendered a final decision in In re Dean, 972 So.2d 590 (Miss. 2008).
Because the state proceedings were no longer pending, we held that the
abstention issue was moot. See Dean, 326 F. App’x at 761. We further held that
the Rooker-Feldman doctrine was inapplicable, because the doctrine applies only
in cases “brought by state-court losers complaining of injuries caused by state-
court judgments rendered before the district court proceedings commenced.” Id.
at 762 (internal citations omitted) (emphasis added). Finally, because the district
court granted summary judgment to the defendants on their claim and issue
preclusion arguments without providing analysis, we vacated the district court’s
judgment and remanded for further proceedings in light of the Mississippi
Supreme Court’s decision.
      On remand, the district court again granted the Board’s motion for
dismissal (or, alternatively, summary judgment) based on res judicata and
alternative grounds, noting that “[d]isposition of the federal action, once the
state-court adjudication is complete, [is] governed by preclusion law.”(citing
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (U.S. 2005)). Dean
timely appealed.
                        II. STANDARD OF REVIEW
      Dismissal under Rule 12(b)(6) on res judicata grounds may be appropriate
when the elements of res judicata are apparent on the face of the pleadings. See



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                                    No. 10-60086

Kan. Reinsurance Co. v. Mktg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994).
In ruling on a such a motion, “[t]he court may consider documents attached to
or incorporated in the complaint and matters of which judicial notice may be
taken.” United States ex rel. Willard v. Humana Health Plan of Tex. Inc., 336
F.3d 375, 379 (5th Cir. 2003). This court “reviews the res judicata effect of a
prior judgment de novo because it is a question of law.” United States v.
Davenport, 484 F.3d 321, 326 (5th Cir. 2007).
                                III. DISCUSSION
      The doctrine of res judicata serves to “relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, [prevent] inconsistent
decisions, [and] encourage reliance on adjudication” by barring “further claims
by parties or their privies based on the same cause of action.” Davenport, 484
F.3d at 326 (internal citations omitted). The federal courts may not “employ
their own rules of res judicata in determining the effect of state judgments.
Rather, . . . a federal court [must] accept the rules chosen by the State from
which the judgment is taken.” Shimon v. Sewerage & Water Bd. of New Orleans,
565 F.3d 195, 199 (5th Cir. 2009) (internal citations omitted).
      Mississippi res judicata doctrine provides that “when a court of competent
jurisdiction enters a final judgment on the merits of an action, the parties or
their privies are precluded from re-litigating claims that were decided or could
have been raised in that action.” Miss. Dep’t of Human Serv. v. Shelby, 802 So.2d
89, 95 (Miss. 2001). The doctrine applies only when there has been a final
judgment on the merits, and the following identities are present between the
earlier and current proceedings: “(1) identity of the subject matter of the action;
(2) identity of the cause of action; (3) identity of the parties to the cause of action;
and (4) identity of the quality or character of a person against whom the claim
is made.” Harrison v. Chandler-Sampson Ins.,Inc., 891 So.2d 224, 232 (Miss.
2005).

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                                  No. 10-60086

      First, the Mississippi Supreme Court rendered a final judgment on the
merits of Dean’s claims in In re Dean, 972 So.2d 590 (Miss. 2008). That case
involved the Board’s handling of Dean’s application for admission to the
Mississippi bar – the same subject matter that gave rise to Dean’s ADA, civil
rights, and equal protection claims in the case sub judice. This fulfills the first
element.
      Second, Mississippi law considers actions to be “the same if they arise from
the same ‘transaction’; whether they are products of the same ‘transaction’ is to
be determined by giving weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether they form a convenient
trial unit, and whether their treatment as a unit conforms to the parties'
expectations or business understanding or usage.” Harrison, 891 So. 2d at 234
(internal citations omitted). Dean argues that the Mississippi Supreme Court
in In re Dean was limited to reviewing the Board’s administrative decision under
an “arbitrary, capricious or malicious” standard. Therefore, Dean reasons, the
proceedings did not provide a forum in which to litigate his Federal law claims.
This characterization of the Mississippi action is inaccurate. First, “bar
admission is within the constitutional domain of [the Mississippi Supreme]
Court. Thus, there is no separation of powers impediment to trial de novo.”
Watkins v. Miss. Bd. of Bar Admissions, 659 So.2d 561, 567 (Miss. 1995).
Because the Mississippi courts have the authority to provide de novo trial in the
“limited cases where allegations go beyond the merits of a[ bar] applicant's
examination,” Dean could have brought federal claims there. Id. In fact, Dean
actually raised federal claims before the state court, which the court adjudicated
on the merits, separately from its review of the Board’s decision. In re Dean, 972
So.2d at 597-98. Specifically, the state court in that action heard Dean’s claims
under the First and Fourteenth Amendments to the U.S. Constitution. Id. at



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                                  No. 10-60086

598. Dean’s contention that he did not have an adequate forum to litigate his
federal claims is therefore without merit.
       Because Dean’s claims here result from the same transaction as in In re
Dean – Dean’s application to the Mississippi bar – the second element is met.
The district court properly noted that “[a]lthough couched in terms of an ADA
claim, a due process claim and an equal protection claim, at the heart of each is
Dean’s complaint that the Board determined that he was mentally and
emotionally unstable, and in Dean’s opinion, without being qualified to make
such an assessment.” Dean argued in In re Dean that the Board had unlawfully
made a medical determination without a medical license in deciding that he was
mentally or emotionally unfit to be an attorney. The Court found the Board
“capable of evaluating an applicant’s mental and emotional state, not for the
purposes of medical diagnosis, but for the purpose of determining whether he or
she is mentally and emotionally fit to practice law.” In re Dean, 972 So.2d at 600.
Dean’s claims here contest the Board’s practice of assessing his mental state in
the absence of any medically guided assessment. All these claims draw on the
same operative facts, resulting from Dean’s application for admittance to the
bar. Together, they form a convenient trial unit. The second element is therefore
met.
       Third, “[a] non-party defendant can assert res judicata so long as it is in
‘privity’ with a named defendant.” Harrison, 891 So.2d at 236. In In re Dean,
only the Board was a named defendant. Here, in contrast, the Board’s members
are named individually as defendants in addition to the Board. However, Dean’s
allegations only refer to actions taken by the individual defendants while
functioning in their capacities as Board members. This establishes privity
between the defendants and the Board. See Schuster v. Martin, 861 F.2d 1369
(5th Cir. 1988). The third element is therefore met.



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      Finally, because the actions of the Board and the actions of its members
are the same for the purposes of this litigation, the fourth element – the identity
of the quality or character of the defendants – is also met. See EMC Mortg.
Corp. v. Carmichael, 17 So.3d 1087, 1091 (Miss. 2009).
                              IV. CONCLUSION
      For the foregoing reasons, we affirm the judgment of the district court in
its entirety.
      AFFIRMED.




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