09-3695-pr
Rollock v. LaBarbera

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the thirtieth day of June, two thousand and ten.


PRESENT:

          ROGER J. MINER ,
          JOSÉ A. CABRANES,
          RICHARD C. WESLEY ,
                       Circuit Judges.

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LEONARD ROLLOCK ,

                    Plaintiff-Appellant,

                    -v.-                                                                   No. 09-3695-pr

NICOLE LABARBERA ,

                    Defendant-Appellee.

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FOR PLAINTIFF- APPELLANT:                                     Leonard Rollock, pro se, Lisbon, OH.

FOR DEFENDANT-APPELLEE:                                       Li Yu, Assistant United States Attorney (Sarah S.
                                                              Normand, Assistant United States Attorney, on the brief),
                                                              for Preet Bharara, United States Attorney for the Southern
                                                              District of New York, New York, NY.

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        Appeal from a June 23, 2009 judgment of the United States District Court for the Southern
District of New York (Loretta A. Preska, Chief Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

          Plaintiff-Appellant Rollock, pro se, appeals from a judgment of the District Court dismissing his
complaint, sua sponte, as barred by the doctrine of res judicata. Rollock alleges that the District Court erred
in (a) raising the issue of res judicata sua sponte and (b) holding that his claim was barred by res judicata.
“We review de novo the District Court’s application of the principles of res judicata.” EDP Med. Computer
Sys., Inc. v. United States, 480 F.3d 621, 624 (2d Cir. 2007).

          The District Court did not err when it sua sponte raised the issue of res judicata. Scherer v. Equitable
Life Assurance Soc’y of U.S., 347 F.3d 394, 398 n.4 (2d Cir. 2003) (“[A] court is free to raise [the] defense
[of res judicata] sua sponte, even if the parties have seemingly waived it.”). Indeed, after an independent
and thorough review, we conclude, for substantially the reasons stated by the District Court in its well-
reasoned order, Rollock v. LaBarbera, No. 09-civ-5736 (S.D.N.Y. Jun. 23, 2009), that Rollack’s claim is
barred by res judicata.

         Finally, we hold that Rollock’s attempt to invoke the “declaratory judgment exception” is
unavailing. “As this Court has previously stated, the declaratory judgment exception to the application
of the doctrine of res judicata applies when the prior action involved only a request for declaratory relief.”
Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 600 F.3d 190, 196 (2d Cir. 2010) (internal quotation
marks omitted). Because Rollock’s prior claim sought injunctive as well as declaratory relief, see Rollock v.
Stine, Civ. A. 6:06-61, 2006 WL 950186 at *2, the declaratory judgment exception is unavailable. See
Giannone v. York Tape & Label, Inc., 548 F.3d 191, 194 (2d Cir. 2008).

                                                CONCLUSION

       We have considered each of defendant’s arguments on appeal and find them to be without merit.
For the reasons stated above, we AFFIRM the judgment of the District Court.

                                                   FOR THE COURT,
                                                   Catherine O’Hagan Wolfe, Clerk of Court




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