                    Case: 11-15808         Date Filed: 01/11/2013   Page: 1 of 4

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15808
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 9:11-cv-80949-DMM

PAULINE MOODY,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellant,

                                                 versus

CITY OF DELRAY BEACH,
DELRAY BEACH POLICE DEPARTMENT,
STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllll                               Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (January 11, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 11-15808    Date Filed: 01/11/2013    Page: 2 of 4

      Pauline Moody, proceeding pro se, appeals the district court’s denial of her

motion for leave to proceed in forma pauperis and its dismissal of her civil rights

action under 42 U.S.C. § 1983. In her complaint, Moody alleged that the

defendants violated her civil rights when they arrested her for battery in 2007.

The court below denied her motion to proceed in forma pauperis and dismissed

her complaint because it found the complaint identical to a complaint she had

previously filed in 2003 that had been dismissed with prejudice. Moody asserts on

appeal that the district court erred when it concluded that her complaint was

frivolous because her new complaint differs from her earlier complaint in the prior

case. Because we agree with Moody that her new complaint differs from the

earlier complaint, we vacate the district court’s judgment and remand for further

proceedings.

      “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). A district court’s dismissal of a

motion to proceed in forma pauperis because the issues raised are frivolous is

reviewed for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.

2001). A claim is frivolous if it is without arguable merit either in law or fact. Id.

at 1349.

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      Under the doctrine of res judicata, a claim is barred by prior litigation if:

“(1) there is a final judgment on the merits; (2) the decision was rendered by a

court of competent jurisdiction; (3) the parties, or those in privity with them, are

identical in both suits; and (4) the same cause of action is involved in both cases.”

Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). “[I]f a case

arises out of the same nucleus of operative fact, or is based upon the same factual

predicate, as a former action, . . . the two cases are really the same ‘claim’ or

‘cause of action’ for purposes of res judicata.” Id. at 1239 (citation and quotation

marks omitted). However, res judicata bars only those claims that could have

been raised in the prior litigation. Id. at 1238-39; see also Manning v. City of

Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992) (holding that res judicata does not

bar those claims that arose after the original pleading was filed in the earlier

proceeding).

      Moody’s prior complaint contained allegations that she had been raped and

falsely imprisoned by an officer of the Delray Beach Police Department in 1989.

That complaint was dismissed in 2004. In Moody’s present complaint, however,

she contends that the defendants violated her civil rights in events arising out of

her arrest for battery in 2007. Because her present complaint is not identical to her

prior complaint, but involves a wholly separate factual predicate, the district court

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erred in so holding and dismissing her complaint and denying in forma pauperis

status for that reason. Accordingly, we vacate the district court’s judgment and

remand the case for further proceedings.

      VACATED AND REMANDED.




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