                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 13-2491
                       ___________________________

                              James Edward Smith,

                      lllllllllllllllllllll Plaintiff - Appellant,

                                          v.

 Sammy D. Johnson, CO-I, Pine Bluff Unit, ADC; T. Dobbs, Varner Unit, ADC,

                    lllllllllllllllllllll Defendants - Appellees,

Douglas E. Boultinghouse, Lt., Varner Unit, ADC; Justine M. Minor, Disciplinary
             Hearing Officer, Arkansas Department of Correction,

                           lllllllllllllllllllll Defendants.
                                    ____________

                   Appeal from United States District Court
                for the Eastern District of Arkansas - Pine Bluff
                                 ____________

                         Submitted: September 10, 2014
                            Filed: March 10, 2015
                                ____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

COLLOTON, Circuit Judge.
       James Edward Smith, an inmate of the Arkansas Department of Correction,
filed suit against Sammy D. Johnson, a correctional officer, under 42 U.S.C. § 1983,
alleging a violation of Smith’s Eighth Amendment rights. Smith asserts that Johnson
and another officer acted with deliberate indifference to Smith’s safety by placing him
where another inmate could attack him and then intentionally punishing him for the
altercation. The district court dismissed Smith’s suit on the grounds that it was barred
by either the doctrine of claim preclusion or issue preclusion in light of a prior
decision by the Arkansas State Claims Commission on a claim by Smith. Because we
conclude that neither doctrine precludes Smith’s current suit, we reverse and remand
for further proceedings.

                                           I.

       On December 20, 2009, Smith was labeled a “snitch” and attacked by three
other inmates in the Varner Unit of the Arkansas Department of Correction. He was
consequently removed from the Varner Unit and placed in protective custody. Smith
alleges that Johnson returned him to the general prison population in the Varner Unit
on January 28, 2010, without Smith’s consent and in violation of departmental
policies. According to Smith, another inmate attacked him the following day and
severely beat him with his fist and a lock, causing scarring, a lost tooth, migraines,
blurred vision, sensory losses, dizzy spells, and various psychological symptoms.
After the attack, Smith claims that Johnson and other correctional officers punished
him for a thirty-day period using “major disciplinary policies.” Smith unsuccessfully
pursued grievances regarding the altercation with the Department of Correction.

       Smith then sought to redress his injuries by filing a pro se claim against the
Department of Correction with the Arkansas State Claims Commission. Smith
alleged that various correctional officers, including Johnson, “deliberately allowed”
the other inmate to attack Smith, did nothing to protect Smith during the attack, and
then punished Smith for the altercation to conceal their acts exposing him to the

                                          -2-
attack. Smith claimed the officers’ actions amounted to “deliberate indifference” and
“cruel and unusual punishment.” Smith also argued that an officer’s confiscation of
personal property from his cell amounted to cruel and unusual punishment. Smith
sought damages for physical and psychological injuries, compensation for the
“deliberate cruel and unusual punishment,” and reimbursement for his personal
property.

       The Department of Correction moved to dismiss Smith’s claims for failure to
state a claim and for lack of jurisdiction on the ground that “[h]is claim is a federal
constitutional violation, not a negligence claim,” and that the Claims Commission
lacked jurisdiction over violations of federal law. The Claims Commission denied
the motion to dismiss. After a hearing, the Claims Commission dismissed Smith’s
claim based on his “failure to prove by a preponderance of the evidence any
negligence on the part of the Respondent,” i.e., the Department of Correction.

       Smith next filed suit in the district court under § 1983 against Johnson in his
individual capacity. In his pro se complaint, Smith alleged that Johnson returned him
to the Varner Unit with “deliberate indifference for [his] safety” from the other inmate
who attacked Smith, and then “cruelly and unusually punished” Smith for the
altercation, all in violation of the Eighth Amendment. Smith sought compensatory
and punitive damages.

       Johnson moved to dismiss Smith’s claim on the grounds that the doctrine of res
judicata barred him from relitigating the issues decided by the Claims Commission
and from pursuing any claims arising out of the same facts. The district court granted
the motion, ruling if the Claims Commission had jurisdiction to decide Smith’s
constitutional claim, then the § 1983 action was barred by claim preclusion. The
district court concluded alternatively that if the Commission did not have jurisdiction
over the constitutional claim, then issue preclusion barred Smith’s claim because “his
§ 1983 claim is based on the same facts as his unsuccessful claim before the

                                          -3-
Commission.” We review de novo the district court’s dismissal of a claim based on
res judicata, accepting the plaintiff’s factual allegations as true. Laase v. Cnty. of
Isanti, 638 F.3d 853, 856 (8th Cir. 2011).

                                           II.

       Smith argues that the district court erred by dismissing his claims as barred by
either claim or issue preclusion. We conclude first that claim preclusion does not
apply: The Arkansas Claims Commission was the only forum in which Smith could
bring his claim against the State, but the Commission did not have jurisdiction to
address a constitutional claim against Johnson individually.

       The doctrine of claim preclusion in Arkansas applies to decisions of
administrative agencies like the Claims Commission, Craven v. Fulton Sanitation
Serv., Inc., 206 S.W.3d 842, 844 (Ark. 2005), and it “bars not only the relitigation of
claims that were actually litigated in the first suit, but also those that could have been
litigated.” Jayel Corp. v. Cochran, 234 S.W.3d 278, 281 (Ark. 2006). But the
doctrine does “not bar a subsequent action where . . . a party was actually prohibited
from asserting a claim in the earlier action.” Cater v. Cater, 846 S.W.2d 173, 176
(Ark. 1993). The Restatement of Judgments, which has been followed by the
Arkansas courts in other respects, e.g., Ruth R. Remmel Revocable Trust v. Regions
Fin. Corp., 255 S.W.3d 453, 461 (Ark. 2007); Smith v. Roane, 683 S.W.2d 935, 936
(Ark. 1985), likewise provides that claim preclusion is not applicable where “[t]he
plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy
or form of relief in the first action because of the limitations on the subject matter
jurisdiction of the courts . . . and the plaintiff desires in the second action to rely on
that theory or to seek that remedy or form of relief.” Restatement (Second) of
Judgments § 26(1)(c). The Restatement reasons that “it is unfair to preclude [the
plaintiff] from a second action in which he can present those phases of the claim
which he was disabled from presenting in the first.” Id. cmt. c.

                                           -4-
       The Arkansas Claims Commission has “jurisdiction only over those claims
which are barred by the doctrine of sovereign immunity from being litigated in a court
of general jurisdiction.” Ark. Code § 19-10-204(b)(2)(A). Because the doctrine of
sovereign immunity does not bar Smith from litigating his § 1983 claim against
Johnson individually in state or federal courts of general jurisdiction, Kentucky v.
Graham, 473 U.S. 159, 166-67 (1985); Early v. Crockett, 436 S.W.3d 141, 148 & n.5
(Ark. 2014), the Claims Commission has no jurisdiction over that constitutional
claim. Smith’s claim against Johnson in his individual capacity could not have been
brought in the first action before the Claims Commission, so the doctrine of claim
preclusion does not bar the second action. The district court evidently recognized this
limitation on claim preclusion, for the court did not rely on claim preclusion to bar
the second action if the Commission lacked jurisdiction to decide Smith’s § 1983
claim. See R. Doc. 26, at 1-2.

       The district court thought the doctrine of issue preclusion nonetheless barred
Smith’s action against Johnson. Issue preclusion bars the relitigation of an issue that
was actually litigated in a prior action and was determined by, and essential to, a valid
and final judgment. Deer/Mt. Judea Sch. Dist. v. Kimbrell, 430 S.W.3d 29, 39 (Ark.
2013). Applying that doctrine, the district court ruled that Smith was precluded from
bringing a claim “based on the same facts that were litigated and decided against him”
in the Arkansas Claims Commission.

       To invoke issue preclusion, however, a defendant must establish not only that
a claim arises from the same facts, but that the same issue was decided in the prior
proceeding. Estate of Goston v. Ford Motor Co. (In re Estate of Goston), 898 S.W.2d
471, 473 (Ark. 1995). The Arkansas Supreme Court requires a party invoking issue
preclusion to establish that “the precise issue” was decided in the first proceeding,
Smith, 683 S.W.2d at 936, and interprets “very narrowly” whether an issue was
previously litigated. In re Estate of Goston, 898 S.W.2d at 473.



                                          -5-
       The Commission did not decide the same issue that Smith seeks to litigate in
the present action. The order of the Commission determined only that Smith failed
to prove “any negligence on the part of the [Department of Correction].” App. 89
(emphasis added). Smith’s present claims are that Johnson individually was
deliberately indifferent to his safety in the prison and intentionally cruelly and
unusually punished him for the altercation, in violation of the Eighth Amendment.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994). One claim involves alleged
criminal recklessness, where the defendant must “both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and . . .
also draw the inference,” id.; the other involves alleged intentional wrongdoing.

       The Commission’s determination that the Department of Correction was not
negligent thus did not resolve the same issues presented here, because negligence is
mutually exclusive of deliberate indifference and intent. “The theories of negligence
and intentional tort are contradictory and mutually exclusive.” Hockensmith v.
Brown, 929 S.W.2d 840, 845 (Mo. Ct. App. 1996). Accordingly, “there is generally
no claim of negligence that flows from intentionally tortious conduct.” BP Chems.
Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 685 (8th Cir. 2002). The Restatement
(Second) of Torts likewise recognizes that negligence “excludes conduct which
creates liability because of the actor’s intention to invade a legally protected interest,”
§ 282 cmt. d, or because of the actor’s criminal recklessness (i.e., deliberate
indifference): “[T]he word ‘negligence’ excludes conduct which the actor does . . .
realize as involving a risk to others which is not merely in excess of its utility, but
which is out of all proportion thereto.” Id. cmt. e; see also id. (“As the disproportion
between risk and utility increases, there enters into the actor’s conduct a degree of
culpability which approaches and finally becomes indistinguishable from that which
is shown by conduct intended to invade similar interests.”). For these reasons, even
assuming that the Commission’s decision on Smith’s allegations against the
Department of Corrections should be read as a decision about Johnson’s individual
conduct, the Commission’s determination that the Department was not “negligent”

                                           -6-
did not resolve the precise issues about alleged deliberate indifference and intentional
wrongdoing by Johnson that Smith raises in his § 1983 action.

                                   *       *       *

      The judgment of the district court is reversed, and the case is remanded for
further proceedings.
                     ______________________________




                                          -7-
