Neng Por Yang v. Terry Nutter , 455 F. App'x 705 ( 2012 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 11-2927
    ___________
    Neng Por Yang,                           *
    *
    Appellant,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Minnesota.
    Terry Nutter, acting in his individual   *
    capacity as Minneapolis Police Officer; * [UNPUBLISHED]
    Anthony Leone, acting in his individual *
    capacity as Minneapolis Police Officer; *
    John Doe 1; John Doe 2, acting in        *
    their individual capacities as Unknown *
    Federal Agents of the United States      *
    Government,                              *
    *
    Appellees.                  *
    ___________
    Submitted: February 2, 2012
    Filed: February 7, 2012
    ___________
    Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.
    ___________
    PER CURIAM.
    Neng Por Yang challenges the district court’s1 dismissal of his action asserting
    
    42 U.S.C. § 1983
     claims and a common law negligence claim against state and federal
    law enforcement officers. We initially note that the appeal is timely, see Fed. R. App.
    P. 4(a)(1)(B) (when United States or its officer or agency is party, notice of appeal may
    be filed by any party within 60 days after judgment or order appealed from is entered),
    and we conclude, upon careful de novo review, that dismissal was appropriate, see B
    & B Hardware, Inc. v. Hargis Indus., Inc., 
    569 F.3d 383
    , 387 (8th Cir. 2009) (de novo
    review of Fed. R. Civ. P. 12(b)(6) dismissal).
    First, we agree with the district court that Yang’s claims were precluded under
    the doctrines of res judicata and collateral estoppel. See 
    28 U.S.C. § 1738
     (judicial
    proceedings of any state court shall have same full faith and credit in every court
    within United States as they have by law or usage in courts of such state from which
    they are taken); Zutz v. Nelson, 
    601 F.3d 842
    , 845, 847-48 (8th Cir. 2010) (reciting
    elements of res judicata and noting that it applies to all claims that were actually
    litigated and that could have been litigated in earlier action), cert. denied, 
    131 S. Ct. 524
     (2010); Aufderhar v. Data Dispatch, Inc., 
    452 N.W.2d 648
    , 650 (Minn. 1990)
    (Minnesota does not require “mutuality” of parties as predicate to invocation of
    collateral estoppel; although defendant was not party to earlier proceeding, he may
    invoke collateral estoppel in subsequent litigation by plaintiff who was claimant in
    earlier proceeding if (1) issue was identical to one in prior adjudication, (2) there was
    final judgment on merits, (3) estopped party was party to prior adjudication; and (4)
    estopped party was given full and fair opportunity to be heard on adjudicated issue).
    We also agree with the district court that these doctrines applied notwithstanding
    Yang’s unsupported and conclusory allegations of fraud in the prior state-court
    proceedings.
    1
    The Honorable John R. Tunheim, United States District Judge for the District
    of Minnesota, adopting in part the report and recommendation of the Honorable
    Franklin L. Noel, United States Magistrate Judge for the District of Minnesota.
    -2-
    Second, we agree with the district court that the Federal Tort Claims Act
    provided the exclusive remedy for Yang’s negligence claim against the federal
    defendants, see 
    28 U.S.C. § 2679
    (b)(1) (remedy against United States provided by this
    title for personal injury arising from negligent or wrongful act of any government
    employee while acting within scope of his office or employment is exclusive of any
    other civil action for money damages by reason of same subject matter against
    employee whose act or omission gave rise to claim), and that his negligence claim was
    not timely, see 
    28 U.S.C. § 2401
    (b) (tort claim against United States shall be forever
    barred unless action is begun within six months after date of mailing, by certified or
    registered mail, of notice of final denial of claim by agency to which it was presented).
    Accordingly, we affirm. See 8th Cir. R. 47B.
    ______________________________
    -3-
    

Document Info

Docket Number: 11-2927

Citation Numbers: 455 F. App'x 705

Judges: Murphy, Arnold, Shepherd

Filed Date: 2/7/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024