
USCA1 Opinion

	




          July 12, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2237                                  DR. AMARENDRA TUNGA,                                Plaintiff, Appellant,                                          v.                             PROF. LOUIS D. QUIN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Dr. Amarendra Tunga on brief pro se.            ___________________            Joyce  A.  Kirby,  General  Counsel,  U.  of  Mass.,  and  Special            ________________        Assistant Attorney  General, and Deirdre Heatwole,  Associate Counsel,                                         ________________        U. of Mass., on brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.   Dr. Amarendra Tunga  filed similar actions                 __________            in  state and federal court complaining of the termination of            his  temporary appointment  as  a visiting  scientist at  the            University of  Massachusetts at  Amherst.  Some  months after            the  state  court  suit  was dismissed,  the  district  court            dismissed the instant action (1) on claim preclusion grounds,            (2) for failure to  state a claim, and (3)  because plaintiff            had  not   adequately  justified  his  failure   to  file  an            opposition to  defendants' motion to  dismiss.  As  the first            rationale  provides  ample  support  for  the  court's action            (especially now that plaintiff's  appeal from the state court            judgment has been dismissed), we affirm on that basis alone.                 Little discussion  is required.   A federal  court "must            give preclusive effect to state court judgments in accordance            with state law,"  Mulrain v.  Board of Selectmen  of Town  of                              _______     _______________________________            Leicester, 944 F.2d 23, 25 (1st  Cir. 1991); we thus look  to            _________            Massachusetts res judicata principles.  In Isaac v. Schwartz,                                                       _____    ________            706 F.2d 15 (1st  Cir. 1983), we summarized those  principles            as follows:                  Massachusetts  courts  apply  res  judicata   in  a                 perfectly traditional manner.   That is to say, the                 doctrine prevents the  relitigation of "issues that                 were  or could have  been dealt with  in an earlier                 litigation."    The  entry  of a  valid  and  final                 judgment on the merits "extinguishes ... all rights                 of  a plaintiff to  remedies against  the defendant                 with respect to all or any part of the transaction,                 or series  of connected transactions,  out of which                 the complaint arose."                      ....                 ....    In Massachusetts,  as  elsewhere,  a second                 claim  is barred  "even  though  the  plaintiff  is                 prepared  in  the  second  action  ...  to  present                 evidence,  grounds, or  theories  of  the case  not                 presented in the  first action ...."   The issue is                 "not  whether  the  plaintiff in  fact  argued  his                 [civil  rights] claims in the state proceeding, but                 whether he could have."            Id. at 16-17 (citations  omitted); accord, e.g., Willhauck v.            ___                                ______  ____  _________            Halpin, 953 F.2d 689, 704-05 (1st Cir. 1991).            ______                 The  instant case clearly falters under these standards.            Indeed, the  state and  federal complaints (both  as amended)            are virtually verbatim copies of one another--to the point of            sharing the  same typographical  errors.   Plaintiff protests            that the respective legal theories diverge, in that his state            action focused on slander while the federal action advanced a            host of civil rights and constitutional claims.  Even if true            (and the language of the complaints indicates otherwise), all            such allegations "grow[] out of the same transaction, act, or            agreement and seek[] redress for the same wrong."  Mackintosh                                                               __________            v.  Chambers, 285 Mass. 594, 596 (1934) (quoted in Isaac, 706                ________                                       _____            F.2d at  17).   Plaintiff's suggestion that  claim preclusion            does not apply  in civil  rights actions is  mistaken.   See,                                                                     ___            e.g., Mulrain,  944 F.2d at 25.   And contrary to his further            ____  _______            assertion, "a dismissal for failure  to state a claim,  under            Mass. R. Civ.  P. 12(b)(6),  operates as a  dismissal on  the            merits,  see  Mass. R.  Civ. P.  41(b)(3), with  res judicata                     ___            effect."  Isaac, 706 F.2d at 17.                      _____                 Affirmed.                 _________                                         -3-
