United States District Court, D. Minnesota
Victor B. Perkins, Plaintiff,
Dr. Shelley Stanton, Chief Psychiatrist, Defendant.
MEMORANDUM AND ORDER
A. Magnuson United States District Judge
matter is before the court on the June 27, 2019, Report and
Recommendation (“R&R”) of Magistrate Judge
Tony Leung. (Docket No. 35.) The R&R recommends that this
matter be dismissed with prejudice because Perkins's
claims are barred by res judicata. Perkins filed timely
objections to the R&R. (Docket Nos. 36, 37.)
Court must conduct a de novo review of any portion of the
R&R to which specific objections are made. 28 U.S.C.
§ 636(b)(1)(C); Fed.R.Civ.P. 72(b); D. Minn. LR 72.2(b).
Based on that de novo review, and for the reasons set forth
below, the Court overrules Perkins's objections and
adopts the R&R.
full factual background of this matter is stated in
Magistrate Judge Leung's R&R. In short, Perkins
claims that he “suffered two massive heart
attacks” while taking a medication that Defendant Dr.
Shelley Stanton prescribed to him. (Compl. (Docket No. 1) at
1.) Perkins sued Stanton in 2016, alleging that she was
deliberately indifferent to his medical needs in violation of
42 U.S.C. § 1983 and that Stanton committed medical
malpractice in violation of Minnesota law. This Court
dismissed that matter with prejudice after adopting the
R&R of Magistrate Judge Franklin Noel. Perkins v.
Stanton, No. 16cv1070 (Docket No. 27). Perkins's
deliberate indifference claim failed because Stanton was
protected by qualified immunity. Perkins's claim for
medical malpractice failed because he “failed to
include an affidavit stating that his medical malpractice
claim [was] reviewed by a qualified health care
provider” as required for a medical malpractice claim
under Minn. Stat. § 145.682. Perkins v.
Stanton, No. 16cv1070, 2017 WL 780886, at *3 (D. Minn.
Jan. 27, 2017) (Noel, M.J.).
filed the instant Complaint in 2018, which contains the same
two allegations as his previous case.
federal law, res judicata applies when “‘(1) the
first suit resulted in a final judgment on the merits; (2)
the first suit was based on proper jurisdiction; (3) both
suits involve the same parties (or those in privity with
them); and (4) both suits are based upon the same claims or
causes of action.'” Elbert v. Carter, 903
F.3d 779, 782 (8th Cir. 2018) (quoting Costner v. URS
Consultants, Inc., 153 F.3d 667, 673 (8th Cir. 1998)).
Similarly, under Minnesota law, the res judicata bar applies
when “(1) the earlier claim involved the same set of
factual circumstances; (2) the earlier claim involved the
same parties or their privies; (3) there was a final judgment
on the merits; [and] (4) the estopped party had a full and
fair opportunity to litigate the matter.”
Hauschildt v. Beckingham, 686 N.W.2d 829, 840 (Minn.
objections, Perkins claims that the Court incorrectly decided
the qualified immunity issue because Perkins is suing Stanton
in her individual capacity rather than her official capacity.
Perkins further alleges that his medical malpractice claim is
not barred by res judicata because this Court's earlier
judgment was not “on the merits” and Perkins was
not given a “full and fair opportunity to litigate the
matter” because the claim was dismissed for failure to
provide the required expert affidavit. Id. Perkins
has not challenged the fact that the parties to the instant
suit are identical or that the Court had jurisdiction over
the previous case.
argument regarding qualified immunity has already been heard
and rejected. Perkins, 2017 WL 780886, at *3
(“Dr. Stanton is immune from suit in her official and
individual capacities pursuant to the Eleventh Amendment and
the doctrine of qualified immunity”). Because his
arguments are identical to those in the previous case,
Perkins's deliberate-indifference claim is barred by res
medical-malpractice claim is similarly barred. A
plaintiff's failure to provide the necessary expert
affidavit in a medical-malpractice claim results in dismissal
of the claim with prejudice. Flores v. United
States, 689 F.3d 894, 900 (8th Cir. 2012). And unless
the dismissal order states otherwise, an involuntary
dismissal-“except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19-
operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(b). Accordingly, Perkins received a final
judgment on the merits of this claim in his prior case, and
the claim is barred by res judicata. And even if his claim
was not barred, Perkins has still failed to include the
necessary expert affidavit, and his claim would fail on that
basis as well.
Perkins's claims are barred under the doctrine of res
judicata and this matter must be dismissed with ...