Lewis Duckett v. MARCIA FULLER, SCDC Dietician in their individual or personal capacities

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6568
LEWIS DUCKETT,
Plaintiff - Appellant,
v.
MARCIA FULLER, SCDC Dietician in their individual or personal
capacities; MRS. BALL, First Name Unknown Kershaw Cafeteria
Supervisor in their individual or personal capacities;
MICHAEL L. FAIR, Legislative Audit Counsel in their
individual or personal capacities; SC DISTRICT 6, Greenville
County State Senate in their individual or personal
capacities; BOYD H. PARR, Director of Poultry Products and
Inspection in their individual or personal capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. J. Michelle Childs, District
Judge. (6:13-cv-03205-JMC)
Argued: March 22, 2016 Decided: April 25, 2016
Before NIEMEYER and MOTZ, Circuit Judges, and Max O. COGBURN,
Jr., United States District Judge for the District of North
Carolina, sitting by designation.
Reversed and remanded by published opinion. Judge Niemeyer
wrote the opinion in which Judge Motz and Judge Cogburn joined.

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ARGUED: Ricardo Camposanto, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Charlottesville, Virginia, for Appellant. Sheila M. Bias,
RICHARDSON PLOWDEN & ROBINSON, P.A., Columbia, South Carolina,
for Appellees. ON BRIEF: Stephen L. Braga, Counsel of Record,
Kaitlyn Tongalson, Third Year Law Student, Appellate Litigation
Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Caleb M. Riser, RICHARDSON PLOWDEN &
ROBINSON, P.A., Columbia, South Carolina, for Appellees.

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NIEMEYER, Circuit Judge:
Lewis Duckett commenced this action against employees of
the South Carolina Department of Corrections (“SCDC”) and
others, alleging that the food served to him at the Kershaw
Correctional Institution, a prison managed by the SCDC, was so
deficient as to violate his Eighth Amendment rights. The form
of Duckett’s complaint and the claims made are virtually the
same as a complaint filed against SCDC employees by a fellow
inmate in 2010, which the district court dismissed on the
merits.
On the state defendants’ motion in this case, the district
court dismissed Duckett’s complaint under Federal Rule of Civil
Procedure 12(b)(6), concluding that, because Duckett would have
benefited if his fellow inmate’s 2010 suit had been successful,
he is barred by the doctrine of res judicata from pursuing the
present action. As the court explained:
The claims are at their core identical, and thus
qualify as the same cause of action. To allow this
claim to go forward would mean relitigating the same
issues this court litigated in [the earlier suit].
This goes against the principles behind res judicata.
We reverse. As a nonparty to the earlier suit, Duckett is
not precluded from pursuing the same claims on his own behalf in
the instant action unless the state defendants are able to
demonstrate that at least one of the six exceptions to the
general rule against nonparty preclusion applies. See Taylor v.

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Sturgell, 553 U.S. 880, 892-95 (2008). We conclude that the
state defendants have not demonstrated that any of the
exceptions applies and accordingly reverse the district court’s
dismissal of Duckett’s complaint and remand for further
proceedings.
I
On April 4, 2013, Duckett and 15 other inmates at Kershaw,
all proceeding pro se, filed a complaint against two SCDC
employees and other state officials, challenging, under the
Eighth Amendment, the quality of the food served at Kershaw. In
the complaint, which is labeled “Class Action Complaint,” the
inmates alleged that the prison authorities failed to serve food
satisfying recommended minimum daily amounts of vitamins and
nutrients; that they served insufficient portions; and that they
misrepresented food as beef when it was actually made from
ground poultry offal and organs, thereby violating the inmates’
Eighth Amendment rights. The inmates sought declaratory and
injunctive relief, as well as damages. The parties agree that
the complaint was drafted by Duckett’s fellow inmate, Bernard
McFadden, who was also one of the 16 plaintiffs in the action.
On review of the complaint under 28 U.S.C. § 1915, the
district court ruled that the complaint “should not be allowed
to proceed under one joint action,” explaining, among other

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things, that the “Plaintiffs have alleged a wide array of
illnesses resulting from malnutrition that would require
individualized findings.” The court accordingly severed the
case “into sixteen separate actions, individualized for each
Plaintiff,” and directed the clerk to file copies of the
complaint under new case numbers, a different one for each
plaintiff.
Following severance of the action, Duckett paid the
required $350 filing fee out of his prison account and
supplemented the allegations of his complaint with further
allegations of his specific injury, claiming “Bleeding gums,
weight loss, High Cholesterol, teeth damage, [and] Heart burn,”
among other things.
The state defendants filed a motion under Rule 12(b)(6) to
dismiss Duckett’s complaint, asserting that “[t]he subject
matter of this action ha[d] already been litigated by
Plaintiff’s privies and a full and final decision on the merits
[had been] rendered by this court.” They specifically referred
to a similar complaint, which the district court had dismissed
on the merits, filed by inmate McFadden in 2010 against SCDC
employees while McFadden was housed in the Kirkland Correctional
Institution, another prison managed by the SCDC.
While the magistrate judge recommended concluding “that
neither res judicata nor collateral estoppel bar[s] the

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plaintiff’s complaint,” the district court granted the state
defendants’ motion to dismiss on res judicata grounds by order
dated March 19, 2015.1 In its supporting opinion, the court
concluded that Duckett “[was] in privity with Plaintiff McFadden
in the prior case,” providing the following explanation:
Had McFadden I been a successful suit for Plaintiff,
Plaintiff in this case would have benefitted. In
McFadden I, the Complaint sought “an Order directing
the Defendants to serve nutritious and balanced meals
according to the daily recommended food charts.”
Plaintiff here similarly seeks an Order requiring “a
gradual change to daily recommended foods that are
balanced and nutritious.” Further, as far as any
damages Plaintiff seeks, had McFadden I been
successful, Plaintiff could have argued collateral
estoppel barred Defendants from denying the facts that
were litigated and thus would benefit from a favorable
decision. Thus, Plaintiff has the same legal right as
Plaintiff McFadden, and is in privity.
From the final judgment dismissing Duckett’s claims with
prejudice, Duckett filed this appeal. By order dated October
27, 2015, we appointed counsel to represent him on appeal.2
II
Duckett contends that he is not bound by the judgment in
McFadden’s 2010 suit because he was not a party to it; he never
had his day in court on the issues presented in it; and he had
1 In the same order, the district court dismissed, without
prejudice, the claims against defendants Michael Fair, SC
District 6, and Boyd Parr, a ruling that Duckett does not
challenge on appeal.
2 We are grateful for appointed counsel’s able service.

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“no meaningful way of participating” in it. In short, he argues
that he cannot be bound by the judgment in that action unless
his circumstances fit into one of the exceptions to the rule
against nonparty preclusion recognized in Taylor. He asserts
that, because none of the exceptions applies to his
circumstances, we should reverse the district court’s order
dismissing his complaint.
The state defendants contend that Duckett is bound by the
judgment in McFadden’s 2010 suit because Duckett’s interests in
this action are “aligned with and even identical to” McFadden’s
interests in McFadden’s 2010 suit and, therefore, Duckett is “in
privity” with McFadden. They assert that “‘privity’ between
parties exists, as a matter of law, when the interests of one
party are so identified with the interests of another that
representation by one party is representation of the other’s
legal right.” The state defendants maintain that the
applicability of Taylor to this case is, “at best, minimal,”
because Taylor rejected a preclusion doctrine based on what is
known as “virtual representation” and “did not discuss the
concept of privity,” on which the district court relied in this
case. But even if Taylor were to control, they reason, at least
one exception identified in Taylor would apply because Duckett
“desires to create a substantive legal relationship with Inmate

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McFadden” and is, in this case, “acting as an agent or proxy for
Inmate McFadden to re-litigate his claims.”
The district court agreed with the state defendants and
dismissed Duckett’s suit as precluded by the doctrine of res
judicata.
The general rule is well established that once a person has
had a full and fair opportunity to litigate a claim, the person
is precluded, under the doctrine of res judicata, from
relitigating it. See New Hampshire v. Maine, 532 U.S. 742, 748-
49 (2001). Sound considerations justify the doctrine.
“[P]reclud[ing] parties from contesting matters that they have
had a full and fair opportunity to litigate protects their
adversaries from the expense and vexation attending multiple
lawsuits, conserves judicial resources, and fosters reliance on
judicial action by minimizing the possibility of inconsistent
decisions.” Montana v. United States, 440 U.S. 147, 153-54
(1979). The doctrine of res judicata, or claim preclusion, is
applied to bar a suit in light of a prior judgment when three
elements are demonstrated: (1) that “the prior judgment was
final and on the merits, and rendered by a court of competent
jurisdiction in accordance with the requirements of due
process”; (2) that “the parties are identical, or in privity, in
the two actions”; and (3) that “the claims in the second matter
are based upon the same cause of action involved in the earlier

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proceeding” -- i.e., the claims “arise out of the same
transaction or series of transactions, or the same core of
operative facts.” In re Varat Enterprises, Inc., 81 F.3d 1310,
1315-16 (4th Cir. 1996) (citations omitted).
Thus, in this case, it cannot be disputed that inmate
McFadden is precluded from relitigating the claims he asserted
and lost in his 2010 suit. The question presented here,
however, is whether Duckett’s present action, raising the same
claims that McFadden made in the 2010 suit, is barred by the
doctrine of claim preclusion even though Duckett was not a party
to McFadden’s 2010 suit and did not participate in it. The
answer is provided definitively by Taylor.
In Taylor, the Supreme Court noted that under the “deep-
rooted historic tradition that everyone should have his own day
in court” with a “full and fair opportunity to litigate the
claims and issues,” a person not designated a party to an action
nor served with process in it “is [generally] not bound by a
judgment in personam” entered in the action. 553 U.S. at 892-93
(internal quotations marks omitted) (quoting Richards v.
Jefferson Cnty., 517 U.S. 793, 798 (1996)). But the general
rule has exceptions such that the nonparty may nonetheless be
bound by a judgment entered in the action. The Taylor Court
identified six such exceptions.

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First, a nonparty who agrees to be bound by a judgment in
an action “‘is bound in accordance with the terms of his
agreement.’” Taylor, 553 U.S. at 893 (quoting 1 Restatement
(Second) of Judgments § 40 (1980)). Second, a nonparty may be
bound by a judgment “based on a variety of pre-existing
substantive legal relationships” between the nonparty and a
party in the action, such as “preceding and succeeding owners of
property, bailee and bailor, and assignee and assignor.” Id. at
894 (alteration, internal quotation marks, and citation
omitted). Third, a nonparty may be bound by a judgment when the
nonparty was adequately represented in the action by a party
with the same interests, such as in “properly conducted class
actions, and suits brought by trustees, guardians, and other
fiduciaries.” Id. (citations omitted). Fourth, a nonparty is
bound by a judgment if the nonparty “‘assume[d] control’ over
the litigation in which that judgment was rendered.” Id. at 895
(alteration in original) (quoting Montana, 440 U.S. at 154).
Fifth, “a party bound by a judgment may not avoid its preclusive
force by relitigating through a proxy,” making preclusion
“appropriate when a nonparty later brings suit as an agent for a
party who is bound by a judgment.” Id. And sixth, “in certain
circumstances a special statutory scheme may ‘expressly
foreclos[e] successive litigation by nonlitigants . . . if the
scheme is otherwise consistent with due process.’” Id.

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(alteration in original) (quoting Martin v. Wilks, 490 U.S. 755,
762 n.2 (1989)).
These six exceptions to the rule against nonparty claim
preclusion constitute an exhaustive list for cases such as this.
As the Taylor Court stated unequivocally, “The preclusive
effects of a judgment in a federal-question case decided by a
federal court should . . . be determined according to the
established grounds for nonparty preclusion described in this
opinion.” 553 U.S. at 904 (emphasis added).
Despite the state defendants’ arguments to the contrary,
therefore, the resolution of the issue presented in this appeal
begins and ends with Taylor. While the state defendants
correctly point out that the Taylor Court declined to use the
term “privity” -- with the Court explaining that it was avoiding
the term to prevent confusion, 553 U.S. at 894 n.8 -- no one can
seriously dispute that the Court nonetheless sought to provide a
comprehensive synthesis of the “discrete exceptions that apply
in ‘limited circumstances’” to the “fundamental . . . rule that
a litigant is not bound by a judgment to which she was not a
party,” id. at 898 (quoting Martin, 490 U.S. at 762 n.2).
Consequently, the question of whether the judgment in McFadden’s
2010 suit bars Duckett from pursuing his claims in this case
must be determined according to the grounds for nonparty
preclusion described in Taylor. See id. at 904.

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Turning to this case, the relevant facts to consider are
those alleged in Duckett’s complaint and the undisputed record
facts from McFadden’s 2010 suit, of which the district court in
this case took judicial notice. See Andrews v. Daw, 201 F.3d
521, 524 n.1 (4th Cir. 2000). These facts show that, in 2010,
McFadden, while incarcerated at Kirkland, filed a complaint
alleging that SCDC employees had served deficient food and
thereby violated his Eighth Amendment rights. The district
court dismissed that action on the merits. Duckett was not a
party to that action, nor was he in any way involved in its
process. Indeed, he was, at the time, incarcerated at Kershaw,
a different prison.
After McFadden was transferred from Kirkland to Kershaw, he
drafted a complaint on behalf of himself and 15 other inmates,
including Duckett, to challenge the adequacy of the food served
at Kershaw. This complaint made the same claims that McFadden
had made in 2010 while at Kirkland. When the district court
severed the action, requiring each inmate to prosecute his own
claims, Duckett did indeed pursue his own, using the McFadden-
drafted complaint and adding his own allegations about the
injuries he claimed to be suffering. The district court
dismissed Duckett’s action because the complaint was virtually
identical to McFadden’s 2010 complaint that had been dismissed,
stating that “to go forward would mean relitigating the same

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issues this court litigated in McFadden I. This goes against
the principles behind res judicata.” Because Duckett was not a
party to McFadden’s 2010 suit and was not served in that action,
however, he cannot be bound by the judgment of dismissal in that
action unless one of the six Taylor exceptions applies.
It appears undisputed that four of the six Taylor
exceptions clearly have no applicability here. There is no
indication that Duckett agreed to be bound by the judgment in
McFadden’s 2010 suit (exception one); that McFadden represented
Duckett in the 2010 suit through a class action mechanism or
other type of representational action, such that McFadden
functioned as Duckett’s trustee, guardian, or fiduciary
(exception three); that Duckett assumed control over McFadden’s
2010 suit (exception four); or that Duckett’s action implicated
a special statutory scheme limiting relitigation (exception
six).
As to the second Taylor exception, which applies based on
“a variety of pre-existing substantive legal relationships
between the person to be bound [in the current action] and a
party to the [previous] judgment,” Taylor, 553 U.S. at 894
(alteration, internal quotation marks, and citation omitted),
the state defendants suggest, almost in passing, that this
exception applies here. But this casual assertion
misunderstands the nature of the exception, which is reserved

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for a variety of legal, property-based relationships. As the
Taylor Court explained, relationships qualifying under the
second exception include “preceding and succeeding owners of
property, bailee and bailor, and assignee and assignor,” noting
further that this exception “originated ‘as much from the needs
of property law as from the values of preclusion by judgment.’”
Id. (quoting 18A Charles Alan Wright, Arthur R. Miller & Edward
H. Cooper, Federal Practice and Procedure § 4448 (2d ed. 2002)).
Nothing in this record hints of any qualifying substantive legal
relationship between Duckett and McFadden that might implicate
the second exception.
The state defendants’ argument for nonparty preclusion
therefore can rest only, if at all, on the fifth exception,
which would preclude Duckett from bringing his suit “as a
representative or agent of [McFadden] who is bound by the prior
adjudication.” Taylor, 553 U.S. at 905. But nothing in the
record supports this exception, which, in essence, is aimed at
precluding McFadden from relitigating his 2010 case by using
Duckett as his foil. To be sure, McFadden apparently drafted
the original complaint in this case for himself and 15 other
inmates, and, indeed, Duckett has referred to McFadden as a
“jailhouse lawyer.” But such jailhouse-lawyer assistance does
not prove that Duckett is acting “subject to the control” of
McFadden for the purpose of pursuing McFadden’s claim. Id. at

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906. To the contrary, the record indicates that Duckett used
McFadden’s assistance to pursue his own claim. Duckett signed
the original complaint as a plaintiff, and his joinder was
consistent with his own earlier grievance about the
institution’s food, which he filed in May 2012, nearly a year
before this action was commenced. In addition, when Duckett’s
claim was severed from the claims of the other 15 inmates,
Duckett paid the filing fee from his own prison account and
supplied the court with language, in his own words, describing
the nature of his personal injuries. Nothing in the record
suggests that Duckett was acting as an agent for McFadden to
pursue McFadden’s claims or that McFadden was serving as some
form of “puppeteer” controlling Duckett, as the state defendants
argue. Taylor’s fifth exception thus does not apply to this
case.
At bottom, we conclude that the state defendants have
failed, at this stage, to meet their burden of demonstrating the
applicability of any of the six Taylor exceptions to the rule
against nonparty preclusion. Accordingly, as a nonparty to
McFadden’s 2010 suit, Duckett is not barred by a judgment in
that suit from pursuing his own similar claims in this action.
The district court’s judgment dismissing Duckett’s complaint

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under Federal Rule of Civil Procedure 12(b)(6) is thus reversed,
and the case is remanded for further proceedings.
REVERSED AND REMANDED

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