     11-3312-pr
     Proctor v. LeClaire


 1                               UNITED STATES COURT OF APPEALS

 2                                     FOR THE SECOND CIRCUIT

 3                                                 ------

 4                                           August Term, 2012

 5   (Argued: January 9, 2013                                         (Decided: April 25, 2013)

 6                                         Docket No. 11-3312-pr

 7   _________________________________________________________

 8   PATRICK PROCTOR,

 9                                                        Plaintiff-Appellant,

10                                        - v. -

11   LUCIEN J. LECLAIRE, JR., Deputy Commissioner, Department of Correctional
12   Services,

13                                             Defendant-Appellee.
14   _________________________________________________________

15   Before: KEARSE, KATZMANN, and LOHIER, Circuit Judges.

16                  Appeal from a judgment of the United States District Court for the Northern District

17   of New York dismissing, on grounds of res judicata and collateral estoppel, plaintiff's action under

18   42 U.S.C. § 1983 alleging deprivation of due process in the periodic reviews conducted with respect

19   to his administrative confinement in a prison special housing unit. See 2011 WL 2976911 (July 21,

20   2011).

21                  Vacated and remanded.
 1                          BETH A. WILLIAMS, Washington, D.C. (Stephen Schwartz, Kirkland &
 2                               Ellis, Washington, D.C., on the brief), for Plaintiff-Appellant.

 3                          MARTIN A. HOTVET, Assistant Solicitor General,Albany,New York
 4                              (Eric. T. Schneiderman, Attorney General of the State of New
 5                              York, Barbara D. Underwood, Solicitor General, Denise A.
 6                              Hartman, Assistant Solicitor General, Albany, New York, on
 7                              the brief), for Defendant-Appellee.



 8   KEARSE, Circuit Judge:

 9                  Plaintiff Patrick Proctor, a New York State prisoner who has been administratively

10   confined since 2003 in a Special Housing Unit (or "SHU") at the Great Meadow Correctional Facility

11   ("Great Meadow") or at the Clinton Correctional Facility, subject to reviews every 60 days, appeals

12   from a judgment of the United States District Court for the Northern District of New York, Gary L.

13   Sharpe, then-Judge, now Chief Judge, dismissing Proctor's amended complaint ("Complaint" or "2010

14   Complaint") brought under 42 U.S.C. § 1983 alleging that his due process rights have been violated

15   because the decisions to continue his confinement in SHU have been based on evidence that should

16   have been expunged from his record, the periodic reviews have been perfunctory and meaningless,

17   and the reasons given for his continued confinement have been false or misleading. The district court

18   granted the motion of defendant Lucien J. LeClaire, Jr., Deputy Commissioner of the New York State

19   Department of Correctional Services ("DOCS"), to dismiss the 2010 Complaint on the grounds that,

20   because Proctor had previously lost a similar suit, see Proctor v. Kelly, No. 05-cv-0692, 2008 WL

21   5243925 (N.D.N.Y. Dec. 16, 2008) ("Proctor I"), the present action was barred by principles of res

22   judicata and collateral estoppel, see Proctor v. LeClaire, No. 09-cv-1114, 2011 WL 2976911

23   (N.D.N.Y. July 21, 2011) ("Proctor II"). Challenging the district court's decision in the present action,

24   Proctor contends principally that neither claim preclusion nor issue preclusion is applicable because

                                                        2
 1   his 2010 Complaint includes material allegations of new facts, asserting a cause of action that was

 2   not previously litigated or decided. To an extent, we agree, and we therefore vacate the judgment and

 3   remand for further proceedings.



 4                                           I. BACKGROUND



 5                  Since 1989, Proctor has been serving a sentence of 32-1/2 years to life imprisonment

 6   for convictions of second-degree murder and attempted escape. He had served prison terms in New

 7   York twice before. In November 1994, Proctor escaped from Shawangunk Correctional Facility

 8   ("Shawangunk"), was recaptured, and was sentenced to serve nine years and one month in SHU at

 9   Great Meadow as disciplinary confinement for, inter alia, escape, weapons possession, assault, and

10   fighting.



11   A. Special Housing Units

12                  A correctional facility SHU is a designated area that is designed "to maximize facility

13   safety and security," by separating particular inmates from the general prison population. 7 N.Y.

14   Comp. Codes R. & Regs. ("NYCRR") § 300.1(b); see also id. § 300.2. Inmates may be assigned to

15   SHU either for disciplinary reasons, see id. § 301.2, or for administrative reasons, see id. § 301.4.

16   Administrative confinement in SHU may be ordered where "the inmates' presence in general

17   population would pose a threat to the safety and security of the facility." Id. § 301.4(b). SHU inmates

18   are subject to particularly strict living conditions. See id. §§ 304.1-.14 (limited services); id.

19   §§ 305.1-.6 (controls and restrictions); see generally Palmer v. Richards, 364 F.3d 60, 65 & n.3 (2d

20   Cir. 2004).

                                                       3
1                   A prisoner who has been confined in SHU for administrative reasons ("administrative

2    segregation" or "Ad Seg") has a due process right to have "[p]rison officials . . . engage in some sort

3    of periodic review of [his] confinement," Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983) ("Helms");

 4   see id. ("administrative segregation may not be used as a pretext for indefinite confinement of an

 5   inmate"). New York law requires that these reviews be conducted "every 60 days in accordance with

 6   the following procedure":

 7                           (1) A three-member committee consisting of a representative of the
 8                  facility executive staff, a security supervisor, and a member of the guidance
 9                  and counseling staff shall examine the inmate's institutional record and prepare
10                  and submit to the superintendent or designee a report setting forth the
11                  following:

12                                 (i) reasons why the inmate was initially determined to be
13                          appropriate for administrative segregation;

14                                  (ii) information on the inmate's subsequent behavior and
15                          attitude; and

16                                 (iii) any other factors that they believe may favor retaining the
17                          inmate in or releasing the inmate from administrative segregation.

18   7 NYCRR § 301.4(d)(1). Such reviews must not deny the prisoner basic due process protections. See

19   generally Helms, 459 U.S. at 477 & n.9.



20   B. Proctor's 2005 Action

21                  In December 2003, after Proctor had served his nine-years-and-one-month sentence

22   of disciplinary confinement in SHU, he was served with an Administrative Segregation

23   Recommendation (the "Ad Seg Recommendation") recommending that, at the end of his disciplinary

24   sentence, he remain assigned to SHU rather than being released into the general prison population.

25   The recommendation cited, inter alia, 14 specific instances of Proctor's alleged misbehavior (plus

                                                       4
 1   general allegations of misbehavior), and it asserted that Proctor was an extreme risk to the safety and

 2   security of facility staff and inmates with whom he could come into contact.

 3                   As described in Proctor I, part of the Ad Seg Recommendation cited Proctor's conduct

 4   before he was confined in SHU, including his 1994 escape from Shawangunk, other escapes or

 5   attempted escapes dating back to at least 1984, and his 1990 stabbing of another inmate. See, e.g.,

 6   Proctor I, 2008 WL 5243925, at *14. Proctor's alleged misconduct while in SHU--as recorded in

 7   Unusual Incident ("UI") reports or staff memoranda, most of which did not result in misbehavior

 8   reports--included his possession of a sharpened nail clipper (a charge that did become the subject of

 9   a misbehavior report, but which was later reversed and eventually expunged); slipping out of his

10   handcuffs; starting multiple fires; telephoning a citizen whom he urged to firebomb a certain home;

11   stabbing another inmate housed in SHU; and concealing a razor in his rectum (as evidenced by

12   x-rays). See id. at *14-*16, *21.

13                   A hearing, attended by Proctor, was held in December 2003 to evaluate the bases for

14   the Ad Seg Recommendation. See generally 7 NYCRR § 301.4(a) (hearing requirement); id.

15   §§ 254.1-.6 (hearing procedures); id. § 251-3.1 (formal charge requirements). The hearing officer

16   concluded that Proctor did "pose a threat to the safety and security of the facility," id. § 301.4(b), and

17   ordered Proctor's placement in administrative segregation.

18                   In 2005, Proctor, proceeding pro se and in forma pauperis, commenced the action that

19   was eventually dismissed in Proctor I. Seven of the 10 causes of action asserted in his amended

20   complaint (or "2005 complaint") alleged that various DOCS employees, including LeClaire, had

21   violated his due process rights in connection with the December 2003 hearing that authorized his

22   administrative confinement. Proctor alleged principally that his administrative segregation hearing


                                                         5
 1   was based on false allegations of misconduct that had been dismissed or expunged and thus should

 2   not have been considered; that he was denied the right to present witnesses in his defense; that the

 3   hearing officer was not impartial; and that portions of the hearing transcript had been destroyed.

 4   (Proctor also asserted three Eighth Amendment claims that are not relevant to his present case.)

 5   Proctor sought monetary and injunctive relief, including the expungement of all records that had been

 6   used in the December 2003 hearing.

 7                  Following discovery, the defendants moved for summary judgment. With respect to

 8   the due process claims, they contended, inter alia, that several of the defendants had not been

 9   personally involved in Proctor's administrative segregation hearing, and that Proctor had received all

10   of the process to which he was entitled. Proctor cross-moved for summary judgment in his favor,

11   reiterating the allegations in the 2005 complaint, and adding in his memorandum of law

12                  that Defendants . . . continue to maintain me in Ad Seg (based upon sham,
13                  perfunctory '60 day-Reviews') and they are using the 'cloak of Ad Seg' as a
14                  pretext to indefinitely confine me and punish me based upon false information
15                  . . . [and] continue[] to [v]iolate due process [by denying me] Constitutionally
16                  mandated meaningful reviews.

17   Proctor's memorandum added that LeClaire had been repeatedly notified of the allegedly false

18   information that was being used as grounds for Proctor's administrative segregation but had simply

19   rubber-stamped the periodic reports recommending Proctor's continued confinement in SHU.

20                  In reply to Proctor's cross-motion, the defendants submitted a memorandum of law

21   arguing that "any alleged due process claim regarding periodic review is distinct from due process

22   claims associated with the initial placement in ad seg," and that "[t]he [2005 c]omplaint is devoid of

23   any allegations claiming any due process violation with respect to the periodic review." The

24   defendants contended that Proctor's new claim "should not be entertained" by the court.


                                                       6
 1                  The magistrate judge to whom the motions had been referred for report and

 2   recommendation recommended that the defendants' motion for summary judgment be granted and that

 3   Proctor's cross-motion be denied. As to the due process claims arising out of the December 2003

 4   administrative segregation hearing, the magistrate judge stated that the hearing had been conducted

 5   in accordance with New York State regulations and in accordance with due process. See Report and

 6   Recommendation of the Magistrate Judge Gustave J. DiBianco dated September 30, 2008

 7   ("Magistrate's 2008 Report"), at 14-29.

 8                  The magistrate judge added that Proctor's claim for denial of due process with respect

 9   to the periodic reviews was not properly before the court because there was no mention of such a

10   claim in the 2005 complaint. The magistrate judge noted that

11                  [t]he question of periodic review is a due process claim that is separate from
12                  the claim for the initial placement in administrative segregation. . . .

13                           Plaintiff's motion for summary judgment, filed in 2008, is the first time
14                  in this case that plaintiff is complaining about his periodic reviews. There is
15                  absolutely no mention of periodic reviews in his amended complaint that was
16                  initially submitted as a motion to amend on September 8, 2005. Since plaintiff
17                  was placed in administrative segregation in 2003, by September of 2005, there
18                  would have been many of those periodic reviews to challenge if plaintiff
19                  wished to do so. Defendants are correct in arguing that the constitutionality
20                  of plaintiff's periodic reviews is not before the court.

21   Id. at 33-34 (emphases in original).

22                  In a decision dated December 16, 2008, District Judge Glenn T. Suddaby, to whom

23   Proctor I was then assigned, accepted and adopted the magistrate judge's recommendation, see, e.g.,

24   Proctor I, 2008 WL 5243925, at *1, *5, *6, *7, *9-*28, and dismissed the 2005 complaint. The court

25   found that no evidence had been proffered to show a denial of procedural due process, pointing out

26   that Proctor had been afforded, inter alia,


                                                        7
 1                  (1) substantial notice of the hearing; (2) the right to choose an assistant before
 2                  the hearing; (3) the ability to have two witnesses interviewed; (4) notice of his
 3                  rights during the hearing; (5) the ability to be present for the entire hearing; (6)
 4                  wide latitude to argue and object during the hearing; (7) the opportunity to
 5                  question Defendant Seyfert and Deputy Superintendent Carpenter at the
 6                  hearing; (8) the opportunity to challenge evidence against him; (9) a
 7                  deliberately and patiently conducted hearing; and (10) a written hearing
 8                  determination that was supported by at least some evidence.

 9   Id. at *4 (internal quotation marks omitted). The district court ruled that there was also no basis for

10   Proctor's claims of the denial of substantive due process. It stated that, given the record of Proctor's

11   history of violent behavior, both in and out of prison, the decision to impose administrative

12   segregation could not be viewed as arbitrary in the constitutional sense. See id. at *6.

13                  With respect to Proctor's belatedly-raised claim that he was denied due process in the

14   periodic reviews, the district court noted

15                  [a]s an initial matter, . . . that Plaintiff appears to have asserted his procedural
16                  due process claim regarding periodic reviews for the first time in his
17                  Memorandum of Law dated February 7, 2008, nearly two and a half years after
18                  he filed an [a]mended [c]omplaint . . . and nearly one and a half years after
19                  discovery closed in the action . . . .

20   Proctor I, 2008 WL 5243925, at *6 (emphases in original). The court concluded that

21                  [a]s a result, it appears that Defendants have conducted no discovery regarding
22                  the claim. For this reason alone, this claim is not properly before the Court,
23                  no matter how much special solicitude Plaintiff is afforded.

24   Id. (emphasis added).

25                  The court went on to say, however, that it would briefly address the merits of the

26   challenge to the periodic reviews "in the interest of thoroughness." Id. The court concluded that

27   Proctor had not been denied meaningful periodic reviews; that he had not been kept in SHU for new

28   reasons ("the Court can find no evidence in the record that Plaintiff continued to remain in

29   administrative segregation as a result of a new reason that arose after the date on which he was

                                                         8
 1   originally placed in administrative segregation"); and that in the absence of any new reason for his

 2   administrative confinement in SHU, Proctor had not been deprived of any right to an explanation of

 3   the decisions to continue that confinement. Proctor I, 2008 WL 5243925, at *7.

 4                  Judgment was entered dismissing the 2005 complaint. Proctor timely appealed; this

 5   Court dismissed the appeal as lacking any basis in fact or law.



 6   C. The Present Action

 7                  In 2009, Proctor, again proceeding pro se and in forma pauperis, commenced the

 8   present action against LeClaire; Proctor filed his amended Complaint in 2010. The 2010 Complaint

 9   alleged principally that the periodic reviews of his SHU status--first occurring on February 23, 2004,

10   and conducted every 60 days thereafter--had been "perfunctory and meaningless," (2010 Complaint

11   ¶ 102), and were "performed merely as a formality and . . . a pretext . . . to indefinitely confine

12   [Proctor] to Ad Seg" (id. ¶ 47). Proctor contended that all references to all of the allegations

13   mentioned in the December 2003 Ad Seg Recommendation should have been expunged from his

14   record--one of which he stated he had been misled to believe was expunged--and that that allegedly

15   false information remained the basis for his continued administrative segregation (see, e.g., 2010

16   Complaint ¶¶ 37, 48, 53, 84); that new or changed reasons given by the review committee for

17   continuing his administrative segregation were false or misleading (see, e.g., id. ¶¶ 42-46, 71); and

18   that he was not provided advance notice of such proposed rationales and thus had been unable to

19   defend against them (see id.). He also alleged that the reviews were "discriminatory" in that he was

20   not allowed to participate in them but was allowed only to raise objections after the decisions had

21   been made. (See, e.g., id. ¶¶ 14, 46, 50.) The 2010 Complaint alleged that some letters Proctor had


                                                       9
 1   submitted to the review committee were not in fact reviewed, denying him a right to be heard. (See,

 2   e.g., id. ¶¶ 35, 62; see also id. ¶ 74 (alleging that Proctor's counselor informed Proctor that "he never

 3   saw any letters [Proctor] wrote for consideration, [and had not] sat down with any security supervisor

 4   and/or committee chairman to discuss [Proctor's] Ad Seg status").) Proctor also alleged that he had

 5   been informed by multiple sources that he was being detained simply because his escape from

 6   Shawangunk had angered DOCS staff. (See id. ¶¶ 91-95; id. ¶ 92 (alleging that Proctor "was told by

 7   several . . . staff . . . that the word is he will remain in Ad Seg for the rest of his sentence" because of

 8   his earlier escape and because he had "caus[ed] embarrassment for the Commissioner, the Department

 9   and the Governor"); id. ¶ 94 (alleging that DOCS Assistant Commissioner told Proctor, "I don't know

10   if you will ever get out. I was in the office th[e] day [of your escape]. You pissed a lot of people off.

11   They think the Governor lost the election because of the escape that day.").)

12                   LeClaire moved to dismiss the 2010 Complaint on grounds that (1) the Complaint

13   failed to allege his personal involvement in the alleged due process violations; (2) Proctor's claim was

14   barred by claim preclusion; and (3) the Complaint was untimely. Judge Sharpe, to whom Proctor II

15   was assigned, referred the motion to a magistrate judge for report and recommendation.

16                   The magistrate judge concluded that Proctor had sufficiently alleged LeClaire's

17   participation in the claimed violations and that Proctor's claim was not time-barred. See Report and

18   Recommendation of the Magistrate Judge David E. Peebles dated February 17, 2011 ("Magistrate's

19   2011 Report"), at 14, 26. But he recommended that the 2010 Complaint be dismissed on grounds of

20   claim preclusion and issue preclusion. See id. at 23-24.

21                   The magistrate judge stated, first, that Proctor could have raised his periodic-reviews

22   claim in Proctor I, stating that "[b]y the time of plaintiff's submission of his summary judgment brief


                                                         10
 1   in [Proctor I] . . . twenty-five periodic reviews of administrative segregation . . . had already been

 2   conducted." Magistrate's 2011 Report at 19. The magistrate judge also concluded that these periodic

 3   reviews were in fact raised and were addressed by Judge Suddaby in Proctor I. See Magistrate's 2011

 4   Report at 17, 23.

 5                   As to the periodic reviews that post-dated Proctor's summary judgment submission,

 6   the magistrate judge, focusing on "'whether the same transaction or connected series of transactions

 7   is at issue,'" id. at 19 (quoting Monahan v. New York City Department of Corrections, 214 F.3d 275,

 8   289 (2d Cir.) (emphasis in Monahan), cert denied, 531 U.S. 1035 (2000)), recommended that Proctor's

 9   2010 Complaint be dismissed on the ground of claim preclusion. He viewed all of Proctor's factual

10   allegations as "deriv[ing] ultimately from the same origin or motivation . . . that drove his claims in

11   [the Proctor I] complaint," Magistrate's 2011 Report at 21 (internal quotation marks omitted), and

12   viewed Proctor's current claim as alleging "the very same . . . unconstitutional conduct" that he had

13   challenged in the prior action, id. at 23.

14                   The magistrate judge stated, however, that

15                   [t]his is not to say . . . that a future action or series of future occurrences
16                   involving plaintiff's administrative segregation review could not at some point
17                   suffice to create a new, viable section 1983 action. . . . It may well be that
18                   some time in the future the plaintiff can sufficiently allege changed
19                   circumstances altering the factual predicate of his procedural due process
20                   claim such that it would not be barred by the original judgment. . . . Claims
21                   based on conduct or procedures which were not contemplated by, or a direct
22                   result of, the earlier action would not necessarily be precluded.

23   Id. at 22 (internal quotation marks omitted).

24                   The magistrate judge also opined that Proctor's 2010 Complaint should be dismissed

25   on the ground that it was "subject to issue preclusion." Id. at 24. He stated that "Judge Suddaby

26   considered and addressed the merits of [Proctor's] procedural due process claim stemming from the

                                                       11
 1   contention that period[ic] reviews of his administrative segregation status have not been meaningful,

2    but instead are sham proceedings based upon false information." Id.

 3                  Proctor objected to the Magistrate's 2011 Report, arguing, inter alia, that the magistrate

4    judge erred in suggesting that Judge Suddaby, when deciding Proctor I, had addressed--or even seen--

5    25 periodic reviews. Proctor also stated that he had not been aware of the sham nature of the earlier

6    reviews, or of LeClaire's "discriminatory" policy and practice, and that he therefore could not have

7    asserted such a claim when he filed his complaint in Proctor I. Proctor argued that his periodic-

8    reviews due process claim--as contrasted with his due process claims arising out of the December

 9   2003 hearing--was not before the Proctor I court and thus that Judge Suddaby's analysis of the

10   periodic reviews was not necessary to the judgment in Proctor I.

11                  The district court rejected Proctor's objections and adopted the Magistrate's 2011

12   Report in its entirety. See Proctor II, 2011 WL 2976911, at *3, *1. Stating that the doctrine of claim

13   preclusion forecloses a cause of action where "there was a final judgment on the merits in a previous

14   proceeding, involving the same parties or their privies, and arising out of the same transaction or

15   connected series of transactions," id. at *2 (internal quotation marks omitted), the court found that

16   principle applicable to Proctor's 2010 Complaint, stating as follows:

17                         In the prior action, the issue of sixty-day reviews was not raised in
18                  Proctor's complaint. . . . Rather, the issue was first raised and resolved at the
19                  summary judgment stage.FN5

20                                  FN5. While this claim went unaddressed in Magistrate Judge
21                          Gustave J. DiBianco's report and recommendation, District Judge
22                          Glenn T. Suddaby concluded that although the issue was not properly
23                          before the court, he would address the merits of the claim "in the
24                          interest of thoroughness." (See Proctor v. Kelly, No. 9:05-CV-692,
25                          Dec. 16, 2008 Order at 15, Dkt. No. 110.)

26   Proctor II, 2011 WL 2976911, at *3 & n.5 (emphases ours). The court continued:

                                                       12
 1                   Thus, with respect to the issue of claim preclusion, Judge Peebles
 2                   recommended dismissal because the claim should have been, and was, raised
 3                   in the previous action. . . . Proctor's due process claim concerning his periodic
 4                   reviews is the same claim he advanced in the prior action. . . . In fact, Proctor's
 5                   [2010 C]omplaint contends that LeClaire's discriminatory policy or practice
 6                   concerning his reviews began on or about February 23, 2004, (see Am. Compl.
 7                   ¶¶ at 13-14), and that since April 2008, each review has employed this
 8                   discriminatory policy, (see id. at ¶ 77). Proctor's first claim involved the initial
 9                   administrative segregation determination, and his second claim developed to
10                   include the periodic reviews based on the same facts derive[d] ultimately from
11                   the same origin or motivation. . . . [T]his lawsuit would have formed a
12                   convenient trial unit with the previous action since both involve substantially
13                   the same occurrences regarding [Proctor's] periodic reviews of his
14                   administrative confinement. . . . Both actions involve facts that occurred as a
15                   "single transaction or series of related transactions." Waldman[ v. Vill. of
16                   Kiryas Joel], 207 F.3d [105,] 112 [(2d Cir. 2000)] . . . . Accordingly, treating
17                   the facts of both actions as a single transaction would conform to the parties'
18                   expectations, . . . which supports Judge Peebles's reasoning that the doctrine
19                   of claim preclusion bars Proctor's claim.

20   Proctor II, 2011 WL 2976911, at *3 (other internal quotation marks omitted) (emphases ours).

21                   The district court also agreed with the magistrate judge's recommendation to apply

22   principles of issue preclusion. The court ruled that Proctor's due process claim had "already [been]

23   addressed on the merits" and was thus barred, id. at *4, stating that "[i]ssue preclusion bars [a] party

24   that has had a full and fair opportunity to litigate an issue of fact from relitigating the same issue once

25   it has been decided against that party," id. (internal quotation marks omitted).

26                   Proctor timely appealed the Proctor II decision, and this Court appointed counsel to

27   represent him on the appeal.




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 1                                             II. DISCUSSION



 2                  On appeal, Proctor principally pursues his contentions that his claim of denial of due

3    process in the periodic reviews was not part of Proctor I, was not required to be part of Proctor I, and

 4   no decision of such a claim was necessary to the judgment in Proctor I. We agree that the district

 5   court's applications of claim preclusion and issue preclusion, which we review de novo, see, e.g.,

 6   Computer Associates International, Inc. v. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997) ("Computer

 7   Associates"), cert. denied 523 U.S. 1106 (1998), were in large part erroneous.



 8   A. Claim Preclusion

 9                  Under the doctrine of res judicata, or claim preclusion, "'[a] final judgment on the

10   merits of an action precludes the parties or their privies from relitigating issues that were or could

11   have been raised in that action'" to support or to defend against the alleged cause of action. SEC v.

12   First Jersey Securities, Inc., 101 F.3d 1450, 1463 (2d Cir. 1996) ("First Jersey") (quoting Federated

13   Department Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)), cert. denied, 522 U.S. 812 (1997).

14                  [T]he doctrine of res judicata provides that when a final judgment has been
15                  entered on the merits of a case, [i]t is a finality as to the claim or demand in
16                  controversy, concluding parties and those in privity with them, not only as to
17                  every matter which was offered and received to sustain or defeat the claim or
18                  demand, but as to any other admissible matter which might have been offered
19                  for that purpose.

20   First Jersey, 101 F.3d at 1463 (quoting Nevada v. United States, 463 U.S. 110, 129-30 (1983) (internal

21   quotation marks omitted) (emphases ours)). The fact that several operative facts may be common to

22   successive actions between the same parties does not mean that a judgment in the first will always

23   preclude litigation of the second. See, e.g., Interoceania Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91

                                                       14
 1   (2d Cir. 1997) ("Interoceania"). "'[A] prior judgment is res judicata only as to suits involving the

 2   same cause of action.'" First Jersey, 101 F.3d at 1464 (quoting Lawlor v. National Screen Service

 3   Corp., 349 U.S. 322, 329 (1955) (emphasis ours)); see, e.g., Nevada v. United States, 463 U.S.

 4   at 128-30 (court must determine whether same "cause of action" is sued on); cf. First Jersey, 101 F.3d

 5   at 1464 ("The claim that First Jersey defrauded customers in the sale, purchase, and repurchase of

 6   certain securities in 1975-1979 is not the same as the claim that First Jersey defrauded customers in

 7   the sale, purchase, and repurchase of other securities in 1982-1985.").

 8                   "For purposes of res judicata, [t]he scope of litigation is framed by the complaint at the

 9   time it is filed." Computer Associates, 126 F.3d at 369-70 (internal quotation marks omitted). Acts

10   committed after the filing of the complaint are not within the scope of the plaintiff's claim. And

11   "[a]lthough a plaintiff may seek leave to file a supplemental pleading to assert a new claim based on

12   actionable conduct which the defendant engaged in after a lawsuit is commenced, see Fed. R. Civ. P.

13   15(c), he is not required to do so . . . ." Computer Associates, 126 F.3d at 370 (citing First Jersey, 101

14   F.3d at 1464). "If the second litigation involve[s] different transactions, and especially subsequent

15   transactions, there generally is no claim preclusion." First Jersey, 101 F.3d at 1464 (emphases added);

16   see, e.g., Lawlor, 349 U.S. at 328 (no res judicata bar to antitrust claim for anticompetitive conduct

17   occurring subsequent to first antitrust suit); Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir. 1977) ("res

18   judicata has very little applicability to a fact situation involving a continuing series of acts, for

19   generally each act gives rise to a new cause of action").

20                   In the present case, Proctor's current due process challenge to the periodic reviews was

21   not within the scope of his 2005 complaint. The due process claims asserted in the original and

22   amended complaints in Proctor I were that Proctor was denied due process in connection with the


                                                        15
1    December 2003 hearing. As recognized by the defendants and the district court in Proctor I, those

 2   pleadings made no mention of any due process claim with respect to the periodic reviews. See, e.g.,

 3   Proctor I, 2008 WL 5243925, at *1 n.1 ("Plaintiff's claim regarding periodic reviews was raised for

 4   the first time in his February 7, 2008 Memorandum of Law, more than two years after Plaintiff filed

 5   his [a]mended [c]omplaint"); Magistrate's 2008 Report at 33-34 ("[t]here is absolutely no mention of

 6   periodic reviews in [Proctor's] amended complaint . . . . Defendants are correct . . . that the

 7   constitutionality of plaintiff's periodic reviews is not before the court" (emphasis in original)). Thus,

 8   a challenge to the periodic reviews, though raised in Proctor's 2008 cross-motion for summary

 9   judgment, was not within the scope of Proctor I.

10                  By the time Proctor commenced Proctor I some of the mandated 60-day periodic

11   reviews had taken place.       And to the extent that Proctor believed that those reviews were

12   constitutionally deficient, he could have joined such a claim with his claims that he was denied due

13   process in connection with the December 2003 hearing. But he was not required to do so because the

14   claims raised in Proctor I and the claim raised in this suit do not constitute the same cause of action.

15   The claims raised in Proctor I focused on the decision against Proctor in December 2003 by a hearing

16   officer and on the ensuing affirmance of that decision by another corrections official; the present

17   claim focuses on decisions adverse to Proctor made periodically after 2003 by committees consisting

18   of three persons. Further, the decision whether to continue a prisoner's administrative segregation

19   depends not only on the prisoner's history that led to his SHU confinement, but on his "subsequent

20   behavior and attitude," 7 NYCRR § 301.4(d)(1)(ii) (emphasis added), and on other circumstances as

21   they exist at the time of the review, see generally Helms, 459 U.S. at 477 n.9.




                                                        16
 1                  Thus, although the Proctor II court viewed the initial confinement and the subsequent

 2   periodic reviews as "the same transaction," 2011 WL 2976911, at *2 (internal quotation marks

 3   omitted), and believed that "treating the facts of both [the initial confinement and the continued

 4   confinement] as a single transaction would conform to the parties' expectations," id. at *3 (internal

 5   quotation marks omitted), we disagree. If the initial decision to administratively confine an inmate

 6   and the subsequent decisions to continue his confinement were a single transaction for res judicata

 7   purposes, a judgment ruling that there was no due process violation in the original administrative

 8   confinement would, in effect, relieve subsequent reviewers of any due process constraints. The very

 9   fact that there is a requirement, however, that after the initial decision imposing administrative

10   segregation "[p]rison officials must engage in some sort of periodic review of the confinement of such

11   inmates," Helms, 459 U.S. at 477 n.9 (emphasis added), means that the initial authorization for

12   confinement and the subsequent decisions to continue confinement--although plainly involving

13   considerations that overlap--are not, and could not reasonably be expected to be, the "same

14   transaction." Accordingly, we conclude that the district court erred in ruling that Proctor's present due

15   process claim with respect to the post-2003 periodic reviews is barred by the Proctor I judgment

16   rejecting his challenges to the December 2003 hearing.

17                  Finally, we see no basis for any suggestion that the district court in Proctor I in effect

18   allowed Proctor to supplement his 2005 complaint with a due process challenge to the periodic

19   reviews. As set out in Part I.B. above, the district court noted that the periodic-reviews claim was

20   not mentioned until Proctor's 2008 cross-motion for summary judgment, "nearly one and a half years

21   after discovery closed in the action," Proctor I, 2008 WL 5243925, at *6 (emphasis in original). And

22   rather than reopening discovery, as would have been necessary had the court allowed Proctor to file


                                                        17
 1   a supplemental complaint to assert that previously unmentioned claim, the court stated that defendants

 2   had had no opportunity for discovery with respect to the periodic reviews and that "[f]or this reason

 3   alone, this claim is not properly before the Court," id.

 4                  Although the Proctor I court went on to address the periodic reviews "in the interest

 5   of thoroughness," id., it thereby went beyond the scope of the 2005 complaint; and its rejection of

 6   Proctor's challenge to the December 2003 hearing did not in any way depend on the adequacy or

 7   appropriateness of the periodic reviews that commenced in 2004. We conclude that the Proctor II

 8   court erred in ruling that Proctor's present action is barred by principles of claim preclusion.



 9   B. Issue Preclusion

10                  For similar reasons, we conclude that, except as to certain issues, the Proctor II court's

11   application of issue preclusion was inappropriate. Issue preclusion, or collateral estoppel, which

12   applies not to claims or to causes of action as a whole but rather to issues, bars litigation of an issue

13   when

14                  (1) the identical issue was raised in a previous proceeding; (2) the issue was
15                  actually litigated and decided in the previous proceeding; (3) the party had a
16                  full and fair opportunity to litigate the issue; and (4) the resolution of the issue
17                  was necessary to support a valid and final judgment on the merits.

18   Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006) (internal quotation marks omitted); see, e.g.,

19   McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007) ("McKithen"), cert. denied, 552 U.S. 1179

20   (2008); Interoceania, 107 F.3d at 91. For issue preclusion to apply, all of these conditions must be

21   met, although the allocation of the burden of proof is divided.

22                  The burden of showing that the issues are identical and were necessarily
23                  decided in the prior action rests with the party seeking to apply issue
24                  preclusion . . . . In contrast, the burden of showing that the prior action did not

                                                        18
 1                     afford a full and fair opportunity to litigate the issues rests with . . . the party
 2                     opposing the application of issue preclusion.

 3   Kulak v. City of New York, 88 F.3d 63, 72 (2d Cir. 1996). If all four of the above conditions are met,

 4   issue preclusion is applicable even if the two suits are not based on the same cause of action. See,

 5   e.g., Lawlor, 349 U.S. at 326; Balderman v. United States Veterans Administration, 870 F.2d 57, 62

 6   (2d Cir. 1989).

 7                     If a party is not shown to have had a full and fair opportunity to litigate the issue, he

 8   is not precluded from litigating it in a subsequent case. See, e.g., Allen v. McCurry, 449 U.S. 90, 101

 9   (1980). Similarly, issue preclusion is inappropriate if "the issue in question" was not "actually and

10   necessarily decided in a prior proceeding." McKithen, 481 F.3d at 105 (internal quotation marks

11   omitted) (emphasis added); see, e.g., Interoceania 107 F.3d at 92 (defense not barred by collateral

12   estoppel where it was "not 'actually litigated and decided' in the previous proceeding and certainly was

13   not 'necessary to support a valid and final judgment on the merits'" (emphasis ours)). The district

14   court in Proctor II, in describing the requirements for issue preclusion, omitted the condition that the

15   decision in the first case must have been necessary to support the final judgment, see 2011 WL

16   2976911, at *4.

17                     In the present action, Proctor contends principally (1) that the periodic reviews were

18   a "sham," (2) that information he provided to the review committees was not considered, (3) that the

19   reasons given by the review committees for continuing his administrative segregation were new, were

20   false or misleading, and were based on false information, and (4) that the review committees'

21   decisions were improperly based on evidence that should have been expunged from his record. Only

22   the last of these contentions is--in part--subject to issue preclusion.




                                                           19
 1                  The amended complaint in Proctor I clearly involved Proctor's contention that certain

 2   evidence should have been expunged from his record; Proctor argued in Proctor I that where incidents

 3   were reflected only in UI reports and not in misbehavior reports, those incidents did not occur.

 4   Proctor's contention that it was improper for the hearing officer to rely on incidents that were

5    described in UI reports but not reflected in misbehavior reports was squarely rejected in Proctor I:

6    "To the extent that UI reports were considered where misbehavior reports were not issued, the court

 7   does not find any error in their use." 2008 WL 5243925, at *21; see id. at *5. Thus, this legal issue--

 8   as to which Proctor has not shown any lack of opportunity to litigate--was actually decided and was

 9   necessary to the ultimate judgment that the December 2003 hearing did not violate Proctor's due

10   process rights. This ruling also rejected Proctor's contention that due process required that all of the

11   records that were used in the December 2003 hearing be expunged from the record. Thus, Proctor

12   is barred from relitigating both the issue of whether the use of incidents described in UI reports that

13   were not the subject of misbehavior reports violates due process and--with one exception discussed

14   in Part II.B.2 below--the issue of whether due process requires that the UI reports that were

15   considered in his December 2003 hearing be expunged from his record.



16          1. "[U]nclear" Contentions and Rulings

17                  Despite finding in general that the hearing officer did not err in relying on UI reports

18   that were not followed by misbehavior reports, the court in Proctor I did not, in connection with that

19   ruling, specifically address most of Proctor's contentions that the hearing officer had relied on false

20   or expunged information. Rather, the Proctor I court found that "[t]o the extent that [Proctor] claims

21   that [the December 2003 hearing officer] relied upon 'false and expunged' information, it is unclear


                                                       20
 1   to what [Proctor] is referring," 2008 WL 5243925, at *21 (emphasis added). It is thus also unclear

 2   to what specific false-information issues the Proctor I court was referring in finding no error.

 3                   While the lack of clarity as to Proctor's specific contentions would not prevent the

 4   application of claim preclusion if that doctrine were otherwise applicable, it prevents the application

 5   of issue preclusion because, inter alia, it is not clear that the false-or-expunged evidence issues in the

 6   two actions are identical, and because we cannot conclude that in Proctor I the contentions that

7    Proctor's initial administrative confinement was based on false or expunged information were actually

8    resolved.



 9           2. The Issue of the Nail Clipper Incident

10                   The Proctor I court, in considering Proctor's contention that expunged matter should

11   not have been considered in the December 2003 hearing, did expressly address the UI-described

12   conduct that was also the subject of a misbehavior report, i.e., Proctor's alleged possession of a

13   sharpened nail clipper. The court noted that "the UI from this incident was considered in th[e 2003]

14   administrative segregation proceeding" after Proctor had "had the charges reversed and expunged"

15   in the mid 1990s. 2008 WL 5243925, at *21. But the court does not appear to have actually decided

16   that it was not error for the hearing officer to consider

17   that incident. The Proctor I court stated that "[t]o the extent that [the hearing officer] considered the

18   one incident involving the nail clipper, the court still finds that no due process violation occurred. . . .

19   If it was error, the error was certainly not 'prejudicial'" to Proctor. Id. at *22 (footnote omitted)

20   (emphasis added). The court noted that it "ma[de] no . . . finding in this case" that consideration of

21   the nail clipper incident was a constitutional error. Id. at *22 n.11. It stated that "[t]here were so


                                                         21
 1   many other incidents upon which [the hearing officer] could [have] base[d] his decision" that, "[e]ven

 2   if the court were to assume that [the hearing officer] erred in considering the UI, and even if that error

 3   could rise to the level of a constitutional error, the court would find the error harmless." Id. at *22

 4   (footnote omitted) (emphasis added). Any finding that an error was harmless, however, must be based

 5   on a consideration of the context in which the error was committed. A finding that an error was

 6   harmless in the context of an initial hearing is not determinative of whether the same error would be

 7   harmless in connection with subsequent reviews which are to consider evidence as to subsequent

 8   behavior and contemporaneous circumstances.

 9                   In sum, to the extent that Proctor contends that any consideration of the expunged

10   allegation of his possession of a sharpened nail clipper violates due process, we do not see that that

11   issue was resolved in Proctor I. Proctor is not precluded from pursuing that issue in the context of

12   his due process challenge to the conduct of the periodic reviews.



13           3. The Issue of New Reasons Given by the Review Committees

14                   Proctor also contends that decisions to continue his confinement in administrative

15   segregation were based on new, and false, reasons that differed from those found to warrant his

16   original confinement. The court in Proctor I found that no new reasons had been given. See 2008 WL

17   5243925, at *7. However, as discussed above, nothing the Proctor I court decided as to the post-2003

18   periodic reviews, in the interest of thoroughness, was necessary to the judgment in Proctor I that the

19   December 2003 hearing did not violate due process. Thus, Proctor's contention that in fact new and

20   false rationales were given for his continued confinement is not barred by issue preclusion.




                                                        22
 1           4. Opportunity To Litigate with Respect to the Periodic Reviews

 2                   Finally, the record in Proctor I in no way indicates that Proctor had a full and fair

 3   opportunity to litigate any allegation that was directed solely at the conduct of the periodic reviews.

 4   As discussed above, in Proctor I the defendants argued that the periodic reviews were not in the case;

 5   and the district court agreed that a challenge to the periodic reviews was not properly before the court.

 6   The court indicated that there had been no prior mention of the periodic reviews and that they had not

 7   been the subject of discovery. As the conduct of those reviews--which began in 2004--was not

 8   relevant to Proctor's challenge to the constitutionality of the December 2003 hearing, the Proctor I

 9   court did not reopen discovery for development of the issues specific to those reviews. Issues that

10   relate to the periodic reviews and that had no bearing on the constitutionality of the December 2003

11   hearing are thus not barred by issue preclusion.

12                   We note that the Proctor II court expressed concern that if claim preclusion or issue

13   preclusion did not prevent Proctor from challenging the periodic reviews, which occur every 60 days,

14   he could bring a new action after every adverse decision, see 2011 WL 2976911, at *3. In theory,

15   such repetitive litigation would be possible. In practice, however, few rational persons will use their

16   own financial resources to repeatedly pursue claims that have been found frivolous; and federal law

17   places limits on the number of suits a prisoner may bring in forma pauperis. See 28 U.S.C. § 1915(g)

18   ("In no event shall a prisoner bring a civil action or appeal a judgment [in forma pauperis] if the

19   prisoner has, on 3 or more prior occasions, while incarcerated . . . brought an action or appeal in a

20   court of the United States that was dismissed on the grounds that it is frivolous . . . or fails to state a

21   claim upon which relief may be granted . . . .").




                                                         23
1                                             CONCLUSION



2                  We have considered all of the arguments of both sides in support of their respective

3   positions with respect to claim preclusion and issue preclusion, and, except as indicated above, have

4   found them to be without merit. The judgment of the district court is vacated, and the matter is

5   remanded for further proceedings consistent with this opinion. We express no view as to the merits

6   of Proctor's present cause of action.




                                                     24
