                                                           FILED
                                               United States Court of Appeals
                  UNITED STATES COURT OF APPEALS       Tenth Circuit

                        FOR THE TENTH CIRCUIT                     May 18, 2018
                      _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
KENT VU PHAN,

       Plaintiff - Appellant,
                                                   No. 18-1022
v.                                        (D.C. No. 1:17-CV-02830-LTB)
                                                    (D. Colo.)
RED SKY CONDOMINIUM HOA’S
DIRECTOR HENRY HIPPLE; RED
SKY CONDOMINIUM HOA’S
BUILDING MANAGER DALE
SMITH; STATE FARM
INSURANCE COMPANY;
YVONNE NAJANJO, Property
Seller Counsel by Attorney Scott
Nelson; KENNEDY BROKERAGE,
LLC; JASON LOBATO, Realtor;
STEPHEN BEAUDOIN, Inspector,

       Defendants - Appellees.
                    _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
              _________________________________



*
     We conclude that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R.
34.1(G). Thus, we have decided the appeal based on the briefs.

      Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
     This appeal involves various claims brought by Mr. Kent Vu Phan

regarding contamination of the crawlspace beneath his condominium. Mr.

Phan brought claims implicating

          the Americans with Disabilities Act;

          Section 504 of the Rehabilitation Act;

          undefined environmental laws;

          42 U.S.C. §§ 1981, 1983, 1985, and 1986;

          the Federal Fair Housing Act; and

          various state tort laws involving fraud and bad-faith insurance
           practices.

     The district court dismissed

          the § 1981 cause of action for failure to state a valid claim and

          all other federal causes of action under the doctrine of res
           judicata.

Having dismissed all of the federal claims, the district court declined to

exercise supplemental jurisdiction over the state-law claims.

     Mr. Phan appeals pro se, arguing that the district court’s dismissal of

his claims denied him justice and a remedy for his alleged injury. In

addition, Mr. Phan seeks leave to proceed in forma pauperis. We affirm the

dismissals and grant the request for leave to proceed in forma pauperis.




                                      2
                         Disposition of the Appeal

I.    Failure to State a Valid Claim Under 42 U.S.C. § 1981

      We affirm the dismissal of the § 1981 cause of action for failure to

state a valid claim.

      Our review of this dismissal is de novo. Fernandez v. Clean House,

LLC, 883 F.3d 1296, 1298 (10th Cir. 2018). To survive a motion to

dismiss, a plaintiff must allege facts that would “‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 1

      Section 1981 prohibits discrimination against protected classes while

their members engage in protected activities. See Hampton v. Dillard Dep’t

Stores, Inc., 247 F.3d 1091, 1101–02 (10th Cir. 2001). To state a valid

claim under § 1981, Mr. Phan needed to allege facts supporting a plausible

inference that

           he was a member of a protected class,

           the defendants had intended to discriminate on the basis of Mr.
            Phan’s protected status, and

           the discrimination had interfered with a protected activity.




1
      Because Mr. Phan is pro se, we liberally construe the complaint, but
we do not act as an advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
                                       3
Id. at 1102. The district court properly determined that Mr. Phan had not

alleged a valid claim under § 1981, for he had not alleged facts indicating

an intent to discriminate on the basis of his protected status.

      Mr. Phan urged discrimination based on a disability and status as an

Asian. Even if we assume that Mr. Phan is a member of a protected class

and that the defendants had interfered with a protected activity, Mr. Phan

pleaded no facts indicating that the defendants had taken action based on

his disability or race.

      He argues that his Caucasian neighbor had the resources to move out

of the contaminated condominium while he did not. 2 But Mr. Phan alleged

no facts suggesting an intent to treat him differently than the Caucasian

neighbor.

      Because Mr. Phan failed to allege that the defendants had intended to

discriminate against him based on his protected status, we affirm the

dismissal of the § 1981 claim.

II.   Claims Barred by Res Judicata

      Before bringing this action, Mr. Phan had filed a similar action for

contamination of the crawlspace beneath his condominium. See generally

Phan v. Hipple, No. 16-cv-03111, slip op. (D. Colo. May 25, 2017). In the

2
      In his reply brief, Mr. Phan argued that some of the defendants had
advised the neighbor to move out because of the contamination. We do not
consider arguments raised for the first time in a reply brief. See United
States v. Redcorn, 528 F.3d 727, 738 n.4 (10th Cir. 2008). But even if we
were to consider the new allegation, it would not change our analysis.
                                      4
prior action, the district court dismissed with prejudice all claims as

frivolous except those arising under § 1981. Id. at 7. Based on res judicata,

we affirm the district court’s dismissal of any claims that were or could

have been raised in the prior action.

      Our review is again de novo. City of Eudora v. Rural Water Dist. No.

4, 875 F.3d 1030, 1034–35 (10th Cir. 2017). In conducting this review, we

consider the nature of res judicata, a doctrine preventing parties from re-

litigating issues that were or could have been raised in an earlier action.

Mitchell v. City of Moore, 218 F.3d 1190, 1202 (10th Cir. 2000). Res

judicata requires

           a judgment on the merits in the earlier action,

           identity of the parties in both suits, and

           identity of the cause of action in both suits.

City of Eudora, 875 F.3d at 1035. The district court correctly concluded

that the federal causes of action (other than the § 1981 cause of action)

were barred by res judicata.

      First, there was a judgment on the merits in Mr. Phan’s earlier

action. In the prior case, the district court dismissed with prejudice the

federal causes of action except those brought under § 1981. Phan v.

Hipple, No. 16-cv-03111, slip op. at 7 (D. Colo. May 25, 2017). A

dismissal with prejudice constitutes a judgment on the merits. Brooks v.

Barbour Energy Corp., 804 F.2d 1144, 1146 (10th Cir. 1986).
                                        5
      Second, there is a common identity between the parties in both suits.

The district court determined that Mr. Phan’s prior action was against

“these same defendants.” Phan v. Hipple, No. 17-cv-02830, 2017 WL

8751737, at *2 (D. Colo. Dec. 19, 2017).

      On appeal, Mr. Phan argues that the parties were not the same

because in the prior suit, “all defendants did not officially enter [the] suit.”

Appellant’s Opening Br. at 10. Mr. Phan cites no authority for this

argument, and even sua spone dismissals can trigger res judicata. See

Coleman v. Labor & Indus. Rev. Comm’n, 860 F.3d 461, 469 (7th Cir.

2017) (noting “that screening dismissals have res judicata effect”). Mr.

Phan makes no other argument that the district court erred in finding a

common identity between the parties in the two suits. 3

      Third, there is a common identity of the cause of action in both suits.

This court defines “cause of action” based on a transactional approach.

Lowell Staats Mining Co. v. Phila. Elec. Co., 878 F.2d 1271, 1274 (10th




3
      In his current suit, Mr. Phan includes an additional defendant not
named in the prior suit: Kennedy Brokerage, LLC. Kennedy Brokerage was
named in the new suit based on the alleged conduct of a realtor, Mr. Jason
Lobato, who had been included as a defendant in the prior action. On
appeal, Mr. Phan does not challenge the element of common identity based
on the addition of Kennedy Brokerage as a party in the second suit. See
United States v. Wells, 873 F.3d 1241, 1254 (10th Cir. 2017) (stating that
we will not consider an argument inadequately presented in a pro se
litigant’s brief).

                                       6
Cir. 1989). Under this approach, a plaintiff cannot bring a new suit for a

claim that was part of the same transaction underlying the earlier suit. Id.

       Like the district court, we conclude that both of the suits stem from

the contamination of the crawlspace beneath the condominium. The district

court determined that Mr. Phan had known about the events since July

2015 (or earlier), which preceded the start of the prior suit, and Mr. Phan

presents no argument questioning the district court’s determination

regarding a common identity of the cause of action in the two suits. Thus,

Mr. Phan could have raised all of the present issues in his prior suit. 4

                                     * * *

       The district court did not err in dismissing Mr. Phan’s federal claims

(with the exception of his § 1981 claim) as barred by res judicata. 5

III.   Jurisdiction over the State-Law Claims

       Having dismissed all of the federal claims, the district court declined

to exercise supplemental jurisdiction over the state-law claims. Here we




4
       On appeal, Mr. Phan raises various new claims against individuals
who are not parties to this appeal. The new claims against these individuals
are not properly before us.
5
      The district court also dismissed as frivolous all claims that had been
asserted in the prior action. See 28 U.S.C. § 1915(e)(2)(B)(i). Because we
affirm the dismissal of the federal claims based on res judicata, we need
not decide whether the court erred in ordering dismissal for frivolousness.
See Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (“We have
discretion to affirm on any ground adequately supported by the record.”).
                                       7
apply the abuse-of-discretion standard. Nielander v. Bd. of Cty. Comm’rs,

582 F.3d 1155, 1172 (10th Cir. 2009).

      A district court may decline to exercise supplemental jurisdiction

over state-law claims if “the district court has dismissed all claims over

which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). We have

explained that when all federal claims have been dismissed, the district

court should usually decline to exercise supplemental jurisdiction over any

outstanding state claims. Koch v. City of Del City, 660 F.3d 1228, 1248

(10th Cir. 2011).

      Here the district court dismissed all of the federal claims, and the

only remaining claims were based on state law. In these circumstances, the

district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over the state-law claims. See id.

IV.   Conclusion

      The district court properly dismissed the § 1981 cause of action for

failure to state a valid claim, and the court properly dismissed the other

federal claims under the doctrine of res judicata. Thus, the court did not

abuse its discretion in declining to exercise supplemental jurisdiction over

the state-law claims.

      Affirmed.




                                      8
            Motion for Leave to Proceed In Forma Pauperis

     In district court, Mr. Phan moved for leave to proceed in forma

pauperis for the purpose of appeal. To obtain leave to proceed in forma

pauperis, Mr. Phan must show that he

          lacks the money to prepay the filing fee and

          brings the appeal in good faith.

28 U.S.C. § 1915(a)(1), (a)(3). He satisfies both requirements. He has no

assets, and we have no reason to question Mr. Phan’s good faith even

though we reject his underlying appeal points. As a result, we grant leave

to proceed in forma pauperis.

                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




                                     9
