ALD-023                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2205
                                       ___________

                                    PATRICK OKEY,
                                              Appellant

                                             v.

                      CPT DANIEL STREBIG; WARDEN DOLL
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 1-14-cv-01203)
                       District Judge Honorable Sylvia H. Rambo
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 22, 2015

            Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                            (Opinion filed: October 29, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Patrick Okey appeals from the judgment of the United States

District Court for the Middle District of Pennsylvania in his civil rights case. As the

appeal lacks any arguable basis in law or fact, we will dismiss it as frivolous under 28

U.S.C. § 1915(e)(2)(B)(i).

                                              I.

       As a threshold matter, we note that we have previously summarily affirmed the

District Court’s dismissal of a virtually identical action filed by Patrick Okey in 2013.

See Okey v. Strebig, 531 F. App'x 212 (3d Cir.), cert. denied, 134 S. Ct. 446 (2013).

Okey, proceeding pro se and in forma pauperis, brought a complaint under 42 U.S.C. §

1983 alleging Eighth Amendment and Fourteenth Amendment violations. The U.S.

Marshals were charged with effecting service on Defendants Strebig and Doll on July 9,

2014. When no response was forthcoming, Okey filed a request for default on August

18, 2014. The defendants filed a motion to dismiss on September 8, 2014, and filed a

brief in support, arguing that res judicata (hereafter referred to as “claim preclusion”)

applied to bar Okey’s case. Okey then filed a motion for default judgment, which the

Court denied. The Court subsequently granted the defendants’ motion to dismiss on the

ground that claim preclusion barred Okey from bringing his claims a second time.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district

court’s decision to dismiss an appeal based on claim preclusion. See Elkadrawy v.
                                              2
Vanguard Grp., Inc., 584 F.3d 169, 172 (3d Cir. 2009). For a party to win on the basis of

claim preclusion, the party must establish that there has been “(1) a final judgment on the

merits in a prior suit;” (2) involving the same parties or parties standing in the same

shoes; and (3) a subsequent suit based on the same claim or claims. Elkadrawy, 584 F.3d

at 172-73 (citing Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 963 (3d Cir. 1991)).

       The District Court correctly found that each of these elements is satisfied and that,

as a result, Okey’s second suit is barred by claim preclusion. In Okey’s first suit, filed in

2013, the District Court issued a final judgment on the merits. First, the District Court

dismissed most of Okey’s claims for failure to state a claim, except for his Eighth

Amendment claim against Defendant Strebig. The District Court granted Okey thirty

days to amend this remaining claim, and he failed to do so. The District Court then

dismissed the case with prejudice for failure to state a claim under § 1915(e)(2)(B)(ii).

Okey brought both cases against Defendants Strebig and Doll,1 alleging violations under

42 U.S.C. § 1983. In the first case, Okey argued that Defendant Strebig violated Okey’s

Eighth Amendment rights by failing to intervene in a prison fight and failing to protect

Okey from injury. Okey also argued in the first case that Defendant Doll had violated

Okey’s Fourteenth Amendment due process rights by failing to hear Okey’s grievances

regarding his administrative segregation. He made these exact arguments in the second




1
  Initially, Okey included a “Corporal Laso” in his initial complaint, but quickly dropped
this defendant from the suit.
                                              3
case. The District Court also correctly denied leave to amend because granting such

leave would have been futile.

      For the reasons stated above, we will dismiss the appeal as frivolous under §

1915(e)(2)(B)(i). In light of our disposition, Okey’s motion for appointment of counsel is

denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).




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