                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                      FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            February 27, 2008
                            No. 07-13101                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                 D. C. Docket No. 07-01149-CV-RWS-1

ARLANDA ARNAY SMITH,


                                                          Plaintiff-Appellant,

                                 versus

M.L. MERCER,
DEKALB COUNTY POLICE DEPARTMENT,


                                                       Defendants-Appellees.


                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                    _________________________

                          (February 27, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
       Arlanda Arnay Smith appeals the dismissal of his civil suit against a Dekalb

County Police Officer and the Dekalb County Police Department. Smith argues

the district court erred in dismissing his suit under the doctrine of res judicata. For

the reasons stated below, we agree and reverse.

                                     I. Background

       Smith, a DeKalb County Georgia jail inmate, filed suit under 42 U.S.C. §

1983 against M.L. Mercer, a Dekalb County police officer, and the Dekalb County

Police Department. Smith claimed Mercer’s actions relating to the issuance of the

arrest warrant, Smith’s arrest, and the failure to provide him with a timely probable

cause hearing violated his constitutional rights under the 4th, 6th, 8th, and 14th

Amendments. The court dismissed his suit as frivolous under 28 U.S.C. §1915A

because barred by res judicata owing to a the dismissal of Smith’s previous similar

complaint.

       Smith appealed on the grounds that res judicata does not bar his suit since

the prior action was dismissed without prejudice. In granting Plaintiff’s motion to

appeal in forma pauperis, the district court acknowledged that its previous

dismissal on res judicata grounds was in error. The court expressed its willingness

to revisit its prior decision, but noted that Plaintiff’s filing of a notice of appeal

deprived it of jurisdiction to do so.



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                                II. Standard of Review

         This court reviews dismissal of a complaint as frivolous pursuant to 28

U.S.C. § 1915A for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349 (11th

Cir. 2001). The application of res judicata is a question of law reviewed de novo.

Norfolk Southern Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir.

2004).

                                     III. Discussion

         Pursuant to 28 U.S.C. § 1915A, federal courts conduct an initial screening of

complaints filed by prisoners to determine whether the claim is, inter alia,

“frivolous or malicious.” The district court dismissed the instant case as frivolous

because it was barred by res judicata. Plaintiff had filed a previous suit on the

same or similar issues, and that case had been dismissed. The earlier case,

however, was dismissed without prejudice on the basis of Younger abstention

during the pendency of criminal proceedings against Plaintiff.

         The doctrine of res judicata bars a subsequent action if the following four

elements are present: (1) the prior decision was rendered by a court of competent

jurisdiction; (2) there was a final judgment on the merits; (3) the parties were

identical in both suits; and (4) the prior and present causes of action are the same.

Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1187 (11th Cir. 2003).



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      A dismissal without prejudice does not constitute a “final judgment on the

merits” and thus has no res judicata effect. Hughes v. Lott, 350 F.3d 1157, 1161

(11th Cir. 2003). A dismissal pursuant to the Younger doctrine is without

prejudice, and does not preclude later re-filing of the complaint. See Maymo-

Melendez v. Alvarez-Ramirez, 364 F.3d 27, 32 n.4 (1st Cir. 2004). As Plaintiff’s

claims were dismissed without prejudice pursuant to Younger, they are not barred

by res judicata, and the dismissal on that basis was improper.

                                  IV. Conclusion

      For the foregoing reasons, the dismissal of Smith’s complaint is

VACATED, and the action is REMANDED to the district court for further

proceedings consistent with this opinion.




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