Harper v. Sparkman

United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          April 23, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 02-60888
                        Conference Calendar

ROY RANDALL HARPER,

                                    Plaintiff-Appellant,

versus

EMMITT L. SPARKMAN, Superintendent; GENE CROCKER, Warden; J.J.
STREETER, Deputy Warden, Area IV; ROBERT ARMSTRONG, Chief of
Security; EARL JACKSON, Case Manager Supervisor; MARY CRAFT, Case
MANAGER, Unit 32-C; EDDIE QUEEN, Case Manager, Unit 32-C,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                    USDC No. 4:02-CV-144-D-B
                      --------------------

Before DAVIS, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     Roy Randall Harper, Mississippi prisoner # 42168, appeals

the district court’s determination that his
42 U.S.C. § 1983
complaint was barred by res judicata.   He argues that the

district court erred insofar as it held that the claims raised in

Harper v. Showers,
174 F.3d 716
(5th Cir. 1999) and in the

instant suit involved the same cause of action.

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 02-60888
                                 -2-

     We review the district court’s determination for plain error

only.    See Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415,

1429
(5th Cir. 1996) (en banc).   Under the doctrine of res

judicata, the critical issue in determining whether two

complaints involve the same cause of action is not the relief

requested or the theory asserted but whether the actions are

based on the same nucleus of operative fact.    Agrilectric Power

Partners, Ltd. v. Gen. Elec. Co.,
20 F.3d 663, 665
(5th Cir.

1994).    In both the instant suit and in Harper, Harper alleged

due process violations associated with his classification as an

“escape risk.”   It therefore cannot be said that the district

court plainly erred in determining that these complaints involved

the same cause of action.

     AFFIRMED.