Second, while the applicable law and policies are the same and the parties overlap, the parties are not identical. See, e.g., Garcia v. Hoover, 223 F. App'x 785, 788 (10th Cir. 2007) (parties or their privies must be same). In the first action, the defendants remaining at the time of final disposition were: Joe Williams, the Director of the New Mexico Department of Corrections; Anthony Romero, Warden of the Central New Mexico Correctional Facility; and Jai R. Walton, staff in charge of legal access at the facility.
See id. A district court may sua sponte dismiss a complaint when the plaintiff's claims are barred by res judicata. See Garcia v. Hoover, 223 F. App'x 785, 788 (10th Cir. 2007). Here, it appears that Rockefeller is trying to re-litigate the same issues that were resolved in his prior lawsuit.
Under federal law, res judicata requires that the prior action involved identical claims and the same parties or their privies, and that there was a final judgment on the merits. See Garcia v. Hoover, 223 Fed.Appx. 785, 788 (10th Cir.2007). Because the Counterclaimants' abuse-of-process claim is not the same claim as any of the underlying claims, res judicata would not apply to bar the Counterclaimants' abuse-of-process claim.
The Tenth Circuit permits a court to consider the timeliness of an action sua sponte when timeliness is clear on the fact of the complaint that the action is barred and there are no meritorious tolling issues, and the plaintiff is given an opportunity to be heard on the issue. Arroyo v. Starks, ___ F.3d. ___, 2009 WL 4827370 (10th Cir. 12/16/09) (citing Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir. 1995)); see also e.g., Garcia v. Hoover, 223 Fed. App'x 785, 788 (10th Cir. 2007) (dismissal of repetitious and untimely prisoner complaint). These proposed findings will serve as the notice and I will give him ample time to object and to raise issues of tolling, though I note there is no basis for tolling on the face of the record.
This result is fully consistent with the policies underlying res judicata: it is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste.Arizona v. California, 530 U.S. 392, 412 (2000) (quoting United States v. Sioux Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J., dissenting)); see Garcia v. Hoover, 223 Fed. Appx. 785, 788 (10th Cir. 2007) (affirming the district court's sua sponte dismissal of pro se plaintiff's complaint on the ground of res judicata). The related doctrine of collateral estoppel bars a party from relitigating an issue once the party has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.