                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3348
                                       ___________

                                    GERALD BUSH,
                                             Appellant

                                             v.

                              MERCY HOSPITAL, et al;
                       CTT COMMUNITY TREATMENT TEAM
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 2:16-cv-04022)
                      District Judge: Honorable C. Darnell Jones, II
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 4, 2017

              Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

                             (Opinion filed: August 4, 2017)
                                     ___________

                                        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.
       Gerald Bush, proceeding pro se, appeals an order of the United States District

Court for the Eastern District of Pennsylvania dismissing his civil rights action against

Mercy Hospital and Community Treatment Team.

       In 2014, Gerald Bush (“Gerald”) filed a complaint in the Eastern District of

Pennsylvania alleging that the appellees violated his civil rights by discharging his

brother, Gregory Bush (“Gregory”), from a mental hospital. Gerald alleged that, after

being discharged, Gregory set fire to his home on January 3, 2014. The District Court

dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim

for relief. We affirmed. See Bush v. Mercy Hosp., 605 F. App’x 92 (3d Cir. 2015).

       In 2016, Gerald filed a second complaint alleging that the appellees violated his

civil rights by negligently discharging Gregory. This time Gerald claimed Gregory set a

fire to his home on July 5, 2014. The District Court dismissed his complaint pursuant to

28 U.S.C. § 1915(e)(2)(B)(i) because Gerald had brought a previous suit against the

appellees. Gerald appeals.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the

District Court’s dismissal of a complaint on res judicata grounds. Morgan v. Covington

Twp., 648 F.3d 172, 177 (3d Cir. 2011).

       Res judicata, also called claim preclusion, protects defendants from having to

defend “multiple identical or nearly identical lawsuits.” Id. Accordingly, the doctrine of

claim preclusion bars claims that were brought, or could have been brought, in a previous

action. In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008). It applies where there is “(1)




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a final judgment on the merits in a prior suit involving (2) the same parties or their privies

and (3) a subsequent suit based on the same cause of action.” Id. (citation omitted).

       The first two prongs are clearly met here. The only question presented is whether

Gerald’s claim arises out of the same set of facts as his prior suit. The focus of this

inquiry is “the essential similarity of the underlying events giving rise to the various legal

claims.” Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 173 (3d Cir. 2009) (citation

omitted). In making such a determination, we look to “whether the acts complained of

were the same, whether the material facts alleged in each suit were the same and whether

the witnesses and documentation required to prove such allegations were the same.” Id.

(citation omitted).

       Gerald’s first action alleged that Mercy Hospital and Community Treatment Team

wrongfully discharged Gregory and that as a result Gregory set fire to his home on

January 3, 2014. In the present action, Gerald claimed that Mercy Hospital and

Community Treatment Team negligently discharged Gregory and that as a result Gregory

set fire to his home on July 5, 2014. These claims are essentially indistinguishable except

for the date of the fire. The second fire, however, already had allegedly occurred before

Gerald filed his initial complaint. Cf. Morgan, 648 F.3d at 178 (holding that claims that

are predicated on events that postdate the filing of the initial complaint are not barred by

claim preclusion). Gerald’s claim could therefore have been brought in his prior suit and

the District Court properly concluded that Gerald’s complaint was barred by claim

preclusion. See Elkadrawy, 584 F.3d at 174 (explaining that claim preclusion applies to

discrete events that constitute a “series of connected transactions.”).


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       Gerald argues that he should be provided the opportunity to amend his complaint

because, if he obtained counsel, it is “likely” that he would be able to state a claim for

relief. However, the District Court correctly concluded that, even if Gerald were given

leave to amend his complaint, amendment here would be futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

       Finally, Gerald claims that the District Court failed to monitor the appellants’

compliance with the disclosure requirements of Federal Rule of Civil Procedure 26.

However, as the District Court dismissed the action prior to the defendants being served

with the complaint, the defendants had no obligation to respond to the complaint or

provide initial disclosures.

       Accordingly, we will affirm the judgment of the District Court.1




1
  To the extent Gerald’s amended appendix could be construed as a motion to supplement
the record, it is denied as the submitted exhibits were not filed in District Court. See In re
Capital Cities/ABC, Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96
(3d Cir. 1990) (the court of appeals will not consider material on appeal that is outside of
the district court record).


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