                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           April 6, 2012
                                  TENTH CIRCUIT
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court


 CHADWICK JASHAWN NEAL,

        Plaintiff–Appellant,

 v.                                                         No. 12-5005
                                                (D.C. No. 4:11-CV-00617-TCK-PJC)
 MEGAN C. DAVIS; RICK SILVER;                               (N.D. Okla.)
 JOHNNY JOHNSON; and STEVE
 JOHNSON,

        Defendants–Appellees.


                               ORDER AND JUDGMENT*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.



      Chadwick Neal appeals the dismissal of his 42 U.S.C § 1983 complaint.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      * The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 32.1.
                                              I

       Neal, who appears pro se, is incarcerated at the Howard McLeod Correctional

Facility in Atoka, Oklahoma. In May 2010, Neal filed a federal civil rights lawsuit in

state court based on events that allegedly occurred while he was in custody at the county

jail. Neal asserted that he sustained a serious eye injury during an assault by another

inmate and that jail officials denied him adequate medical care. As a result, Neal alleges,

he is now blind in his left eye.

       The state court dismissed Neal’s complaint on August 15, 2011. The court

provided three reasons for doing so: First, the court concluded that Allen failed to “have

summonses issued and served in a timely manner” without demonstrating “good cause

for [his] failure.” Second, the court found that Allen “failed to state a claim” that was

“plausible on its face” or rose “above a speculative level.” Finally, the court found that

the defendants were “entitled to qualified immunity in their individual capacities.” In

conclusion, however, the county court stated that it was granting the defendant’s motion

to dismiss for “insufficient service of process,” for “failure to state a claim upon which

relief could be granted,” and “for lack of subject matter jurisdiction.”

       On October 6, 2011, Neal filed the present suit in federal district court against the

same defendants based on the same events. The district court concluded that res judicata

barred Neal’s claims and dismissed his suit. Neal now appeals.




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                                              II

        We review the lower court’s dismissal de novo and liberally construe Neal’s pro

se filings. Martinez v. Garden, 430 F.3d 1302, 1303 (10th Cir. 2005). “Under res

judicata, a final judgment on the merits of an action precludes the parties or their privies

from relitigating issues that were or could have been raised in that action.” Allen v.

McCurry, 449 U.S. 90, 94 (1980). There is no question that Neal litigated the same

issues against the same defendants in his state court suit that he now seeks to litigate in

federal court. Instead, Neal argues that claim preclusion does not apply because the state

court dismissed his prior action for lack of subject matter jurisdiction.

       Neal is correct that a dismissal for lack of subject matter jurisdiction by an

Oklahoma state court does not have claim preclusive effect in a subsequent federal case.

Indep. Sch. Dist. No. 1 v. Scott, 15 P.3d 1244, 1248 (Okla. Civ. App. Div. 2000); see also

Brady v. UBS Fin. Servs., 538 F.3d 1319, 1327 (10th Cir. 2008). He is mistaken,

however, in his assertion that the state court did not have jurisdiction to decide his § 1983

claim. It is well established that state courts may decide federal civil rights suits brought

under § 1983, see Strickland v. City of Albuquerque, 130 F.3d 1408, 1412 (10th Cir.

1997), and we can discern no other reason why the state court would lack subject matter

jurisdiction.

       Although its opinion is lacking in detail, we surmise that the state court

erroneously assumed that qualified immunity, like sovereign immunity, is jurisdictional

in nature. See FDIC. v. Meyer, 510 U.S. 471, 475 (1994). But qualified immunity is a
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defense on the merits, not a jurisdictional bar. See Harlow v. Fitzgerald, 457 U.S. 800,

815 (1982). Accordingly, the state court dismissal order has preclusive effect whether it

dismissed Neal’s complaint for failure to state a claim or on qualified immunity grounds.

The federal district court was therefore correct to dismiss the present complaint as res

judicata.

                                            III

       We AFFIRM. Appellant is reminded he must continue making partial payments

until the filing fees are paid in full.



                                          Entered for the Court


                                          Carlos F. Lucero
                                          Circuit Judge




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