                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2009

Herbert McMillian v. Trans World Airlines
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4449




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Recommended Citation
"Herbert McMillian v. Trans World Airlines" (2009). 2009 Decisions. Paper 1344.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1344


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ALD-153                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-4449


                               HERBERT MCMILLIAN,
                                               Appellant

                                            v.

       TRANS WORLD AIRLINES INC.; MICHAEL J. LICHTY, Plan Administrator


                     On Appeal from the United States District Court
                               for the District of Delaware
                            (D.C. Civil No. 1-08-cv-00777)
                      District Judge: Honorable Sue L. Robinson


         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 9, 2009

             Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                              (Opinion filed: May 20, 2009)


                                        OPINION


PER CURIAM

      Herbert McMillian, proceeding pro se, filed a complaint against Trans World

Airlines (“TWA”), alleging that he is entitled to monetary relief in excess of $25,000,000

because he was wrongly terminated in 1979 and denied benefits to which he was
allegedly entitled. The District Court dismissed the complaint as legally frivolous,

pursuant to 28 U.S.C. § 1915(e)(2)(B), and McMillian filed a timely appeal.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Because McMillian is

proceeding in forma pauperis, we must dismiss the appeal if it is “frivolous.” 28 U.S.C. §

1915(e)(2), i.e., “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490

U.S. 319, 325 (1989).

       Under the doctrine of res judicata, “a question of fact or of law distinctly put in

issue and directly determined . . . cannot afterwards be disputed between the same

parties.” Anselmo v. Hardin, 253 F.2d 165, 168 (3d Cir. 1958) (internal quotation marks

and citations omitted). Prior to the instant civil action, McMillian initiated three actions

in the District Court.1 In at least one of these cases, McMillian requested the same relief

he seeks now: substantial damages based on his termination and denial of benefits. See

Bankr. D. Del. No. 01-bk-00056. In that case, the Bankruptcy Court dismissed

McMillian’s case in part because the claims had been previously litigated, and barred him

from filing any further pleadings related to his disability benefits claim. See D. Del. Civ.

No. 06-cv-00044. Res judicata bars him from relitigating the issues. Accordingly,

McMillian’s appeal “lacks an arguable basis [] in law,” Neitzke, 490 U.S. at 325, and we

will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Appellant’s “motion for


   1
    These actions were docketed as D. Del. Civ. Nos. 08-cv-00180; 06-cv-00044; and
02-cv-0010. In February 2009, McMillian filed yet another action in the District Court,
seeking criminal charges against the same defendants. See D. Del. Civ. No. 09-cv-00081.
That action remains pending.

                                              2
summary judgment” is denied.




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