Herbert McMillian v. Trans World Airlines Inc.

ALD-153 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4449
HERBERT MCMILLIAN,
Appellant
v.
TRANS WORLD AIRLINES INC.; MICHAEL J. LICHTY, Plan Administrator
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1-08-cv-00777)
District Judge: Honorable Sue L. Robinson
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 9, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: May 20, 2009)
OPINION
PER CURIAM
Herbert McMillian, proceeding pro se, filed a complaint against Trans World
Airlines (“TWA”), alleging that he is entitled to monetary relief in excess of $25,000,000
because he was wrongly terminated in 1979 and denied benefits to which he was

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These actions were docketed as D. Del. Civ. Nos. 08-cv-00180; 06-cv-00044; and
02-cv-0010. In February 2009, McMillian filed yet another action in the District Court,
seeking criminal charges against the same defendants. See D. Del. Civ. No. 09-cv-00081.
That action remains pending.
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allegedly entitled. The District Court dismissed the complaint as legally frivolous,
pursuant to 28 U.S.C. § 1915(e)(2)(B), and McMillian filed a timely appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Because McMillian is
proceeding in forma pauperis, we must dismiss the appeal if it is “frivolous.” 28 U.S.C. §
1915(e)(2), i.e., “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490
U.S. 319, 325 (1989).
Under the doctrine of res judicata, “a question of fact or of law distinctly put in
issue and directly determined . . . cannot afterwards be disputed between the same
parties.” Anselmo v. Hardin, 253 F.2d 165, 168 (3d Cir. 1958) (internal quotation marks
and citations omitted). Prior to the instant civil action, McMillian initiated three actions
in the District Court.1 In at least one of these cases, McMillian requested the same relief
he seeks now: substantial damages based on his termination and denial of benefits. See
Bankr. D. Del. No. 01-bk-00056. In that case, the Bankruptcy Court dismissed
McMillian’s case in part because the claims had been previously litigated, and barred him
from filing any further pleadings related to his disability benefits claim. See D. Del. Civ.
No. 06-cv-00044. Res judicata bars him from relitigating the issues. Accordingly,
McMillian’s appeal “lacks an arguable basis [] in law,” Neitzke, 490 U.S. at 325, and we
will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Appellant’s “motion for

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summary judgment” is denied.

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