Cynthia Morales v. Alonzo Wilder; Dr. Stephen McCulloh; Cheryl Smith; Lauren Milton; Karlie Vikowski; Other Unknown Livingston Parish Medical Personnel; Livingston Parish

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

k FIRST CIRCUIT

2020 CA 0861

CYNTHIA MORALES

VERSUS

ALONZOALONZO WILDER;WILDER; DR.DR. STEPHENSTEPHEN McCULLOH;McCULLOH; CHERYLCHERYL SMITH;SMITH; LAURENLAUREN
MILTON;MILTON; KARLIEKARLIE VIKOWSKI;VIKOWSKI; OTHEROTHER UNKNOWNUNKNOWN LIVINGSTONLIVINGSTON PARISHPARISH
MEDICALMEDICAL PERSONNEL;PERSONNEL; LIVINGSTON LIVINGSTON PARISHPARISH

JudgmentJudgment Rendered:Rendered:
MAYMAY 22 55 20212021

OnOn AppealAppeal fromfrom thethe TwentyTwenty
- - FirstFirst JudicialJudicial DistrictDistrict CourtCourt
InIn andand forfor thethe ParishParish ofof LivingstonLivingston
StateState ofof Louisiana Louisiana
Docket Docket No.No. 164,164, 043043

HonorableHonorable JeffreyJeffrey S.S. Johnson,Johnson, JudgeJudge PresidingPresiding

EmilyEmily H.H. PosnerPosner CounselCounsel forfor Plaintiff/Plaintiff/ AppellantAppellant
NewNew Orleans,Orleans, LALA CynthiaCynthia MoralesMorales

ChristopherChristopher M.M. MoodyMoody CounselCounsel forfor Defendants/Defendants/ Appellees Appellees
AlbertAlbert D.D. GiraudGiraud CherylCheryl Smith,Smith, LaurenLauren Milton,Milton,
Hammond,Hammond, LALA KarlieKarlie Vikowski,Vikowski, andand LivingstonLivingston
ParishParish

MichaelMichael M.M. RemsonRemson CounselCounsel forfor Defendant/Defendant/ AppelleeAppellee
CraigCraig J.J. SabottkeSabottke StephenStephen McCulloh,McCulloh, M.M. D.D.
Courtenay'Courtenay' S.S. HerndonHerndon
ShelbyShelby G.G. LaplanteLaplante
BatonBaton Rouge,Rouge, LALA

BEFORE:BEFORE: GUIDRY,GUIDRY, McCLENDON,McCLENDON, ANDAND LANIER,LANIER, JJ.JJ.

MCCLENDON, J.

Plaintiff appeals a judgment sustaining a peremptory exception raising the

objection of res judicata and dismissing plaintiff's suit with prejudice. For the

reasons that follow, we reverse.

FACTUAL AND PROCEDURAL HISTORY

Cynthia Morales filed a petition for damages in the Twenty -First Judicial

District Court, Parish of Livingston ( 21St JDC), on August 8, 2018, seeking damages

stemming from alleged inadequate medical treatment she received during her

incarceration at Livingston Parish Detention Center ( LPDC) on or about August 6-

10, 2017 ( original suit). Morales asserted claims of negligence, medical

malpractice, negligent supervision and training, gross negligence, and respondeat

superior. Named as defendants were Dr. Stephen McCulloh; Parish of Livingston;

Cheryl Smith, as the former medical director of LPDC; unknown medical personnel

who provided care to Morales at LPDC; Lauren Milton; Karlie Vikowski; and Alonzo

Wilder.

Morales' suit was removed to the United States District Court for the Middle

District of Louisiana on August 31, 2018 ( federal court). In an amended complaint,

Morales alleged claims under the Eighth Amendment, the Fourteenth Amendment,

and 42 U. S. C. § 1983, in addition to the claims she had previously raised under

state law.

In response to Morales' amended complaint, Dr. McCulloh filed a motion

pursuant to Federal Rule of Civil Procedure 12( b)( 6). 1 Parish of Livingston, Smith,

Milton, and Vikowski ( collectively, the Livingston Parish defendants), together filed

a separate motion to dismiss pursuant to Rule 12( b)( 6). The motions to dismiss

argued that Morales' amended complaint failed to state a claim upon which relief

can be granted, because Morales had failed to exhaust available administrative

remedies prior to filing suit. Morales opposed the motions to dismiss.

1 Federal Rule of Civil Procedure 12( B) permits a party to assert, by motion, the defense of "failure
to state a claim upon which relief can be granted."

2

The federal court granted the motion to dismiss filed by the Livingston

Parish defendants in a written ruling on July 2, 2019. Regarding Morales' claims

arising under federal law, the federal court found that Morales had failed to state

a plausible claim for relief, and dismissed Morales' federal law claims with

prejudice. Regarding Morales' claims arising under state law, the federal court

determined that Morales' claims arose while she was incarcerated and therefore

were subject to the Louisiana Prison Litigation Reform Act, LSA- R. S. 15: 1181, et

seq. ( LPLRA). Specifically, the federal court referenced LSA- R. S. 15: 1184( A)( 2),

which provides " No prisoner suit shall assert a claim under state law until such

administrative remedies as are available are exhausted. If a prisoner suit is filed in

contravention of this Paragraph, the court shall dismiss the suit without prejudice."

Because Morales "[ did] not allege in her Complaint or Amended Complaint, that

she exhausted any administrative procedures," the federal court " dismiss[ ed]

Morales' state law claims without prejudice for failure to exhaust administrative

remedies." 2 A footnote in the federal court's July 2, 2019 ruling further stated:

The state law claims are dismissed without prejudice. In the event
that Morales sought leave to amend her state law claims, the Court
would decline to exercise supplemental jurisdiction over those claims
in light of the dismissal of the federal claims, infra.

On July 18, 2019, the federal court executed a written order granting the

motion to dismiss filed by Dr. McCulloh, which provided in pertinent part:

F] or the reasons outlined in this Court's [ July 2, 2019 ruling
on the motion to dismiss filed by the Livingston Parish defendants],

IT IS HEREBY ORDERED that the [ motion to dismiss] is
GRANTED, and the Plaintiff's state law claims against Defendant,
Stephen McCulloh, are hereby DISMISSED without prejudice.

IT IS FURTHER ORDERED that the [ motion to dismiss] is
GRANTED, and the Plaintiff's claims arising out of federal law are
hereby DISMISSED with prejudice.

2 On July 6, 2019, Morales filed a motion to amend judgment pursuant to Federal Rule of Civil
Procedure 59( e), requesting that the federal court amend the July 2, 2019 ruling to remand her
state law claims to the 21s' JDC. The federal court denied Morales' motion to amend judgment in
a July 10, 2019 order, which provided in pertinent part:
T] he Court chose to exercise supplemental jurisdiction over the state law claims.
The Court dismissed the state law claims on a substantive legal finding that
Morales had failed to exhaust her state administrative remedies pursuant to the
Louisiana Prison Litigation Reform Act.

3

Thereafter, Morales filed a petition on August 1, 2019 in the 21St JDC

instant suit). The instant suit named the same defendants, alleged the same facts,

and asserted the same claims as the original suit, with the exception that the

instant suit additionally alleged that Morales had " exhausted all available

administrative remedies that were available to her... as required by the [ LPLRA]."

In response, Dr. McCulloh and the Livingston Parish defendants each filed a

peremptory exception raising the objection of res judicata.

A hearing on the exceptions raising the objection of res judicata was held

on January 27, 2020. Counsel for Morales was not present. Counsel for Dr.

McCulloh and the Livingston Parish defendants presented arguments, and offered,

filed, and introduced their pleadings and supporting exhibits into the record. The

trial court allowed defense counsels' submissions of evidence, granted the

exceptions of resjudicata, and dismissed Morales' suit with prejudice.

The trial court executed a written judgment in conformity with its January

271 2020 oral ruling as to the Livingston Parish defendants that day. The trial court

executed a separate written judgment as to Dr. McCulloh on February 18, 2020.

On February 27, 2020, Morales filed a motion for and notice of appeal that

improperly sought appellate review of both the January 27, 2020 judgment in favor

of the Livingston Parish defendants and the February 18, 2020 judgment in favor

of Dr. McCulloh, in one appeal. This Court noticed the lodging of the appeal of the

February 18, 2020 judgment in favor of Dr. McCulloh on September 17, 2020.

Thus, we consider the February 18, 2020 judgment granting the exception of res

judicata in favor of Dr. McCulloh herein. 3

DISCUSSION

When a Louisiana court is required to assess the issue of res judicata in a

case in which the earlier judgment was rendered by a federal court exercising

federal question jurisdiction, the state court must apply the federal law of res

3 We note that Morales only challenges the trial court's decision to sustain the exception of res
judicata as to her state law claims. She makes no argument regarding any federal law claims.

0

judicata.4Raj v. Louisiana State Univ., 2014- 0140 ( La. App. 1 Cir. 4/ 24/ 15), 167

So. 3d 1023, 1029. In federal law, resjudicata is a term that comprises two distinct

doctrines regarding the preclusive effect of prior litigation: claim preclusion, or res

judicata, and issue preclusion, or collateral estoppel. Lucky Brand Dungarees,

Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 1594, 206 L. Ed. 2d 893

2020). Res judicata viewed in this broad sense includes foreclosure of both

relitigation of matters that have been previously litigated and litigation of matters

that have never been litigated but should have been advanced in the earlier suit.

Samour v. Louisiana Casino Cruises, Inc., 2001- 0831 ( La. App. 1 Cir.

2/ 27/ 02), 818 So. 2d 171, 174.

The doctrine of res judicata is strictijuris Each of the essential elements

must be present and established beyond all question, and any doubt must be

resolved against the application of the doctrine. Griffin v. BSFI W. E & P, Inc.,

2000- 2122 ( La. App. 1 Cir. 2/ 15/ 02), 812 So. 2d 726, 730. Further, under federal

law, res judicata does not apply unless the party claimed to be barred had a ' full

and fair opportunity" to litigate the claim in the first action. Benton, Benton &

Benton v. Louisiana Pub. Facilities Auth., 95- 1367 ( La. App. 1 Cir. 4/ 4/ 96),

672 So. 2d 720, 722, writ denied, 96- 1445 ( La. 9/ 13/ 96), 679 So. 2d 110, citing

Kremer v. Chemical Construction Corporation, 456 U. S. 461, 102 S. Ct. 1883,

72 L. Ed. 2d 262 ( 1982). In reviewing the res judicata effect of a prior federal

judgment, we apply the de novo standard of review. Raj, 167 So. 3d at 1029.

To determine whether the federal court judgment dismissing Morales' state

law claims bars Morales from bringing those claims in the instant suit, we first

consider the federal doctrine of claim preclusion. Claim preclusion, or ' true res

4 In the federal system, there are generally two types of jurisdiction in civil cases: federal question
jurisdiction and diversity of citizenship jurisdiction. Raj, 167 So. 3d at 1031. Relevant here is the
fact that Congress has authorized the federal district courts to exercise original jurisdiction in " all
civil actions arising under the Constitution, laws, or treaties of the United States." 28 U. S. C. § 1331.
Such federal question jurisdiction exists when a federal law creates the cause of action asserted in
a complaint. Id. Here, Morales asserted claims under the Eighth Amendment, Fourteenth
Amendment, and 42 U. S. C. § 1983. In the July 2, 2019 written ruling dismissing Morales' federal
law claims against the Livingston Parish defendants, the federal court indicated that it would decline
to exercise supplemental jurisdiction over Morales' remaining state law claims " in light of the
dismissal of the federal claims." It is therefore evident that the federal district court was exercising
federal question jurisdiction in this matter.

5

judicata," treats a judgment, once rendered, as the full measure of relief to be

accorded between the same parties on the same ' claim" or ' cause of action."

Reeder v. Succession of Palmer, 623 So. 2d 1268, 1271 ( La. 1993); Stewart

v. City of Hammond, Louisiana, 2020- 0851 ( La. App. 1 Cir. 3/ 29/ 21), --- So. 3d.

2021 WL 1171074, at * 2. The aim of claim preclusion is to avoid multiple

suits on identical entitlements or obligations between the same parties,

accompanied, as they would be, by the redetermination of identical issues.

Therefore, claim preclusion will apply to bar a subsequent action on res judicata

principles where parties or their privies have previously litigated the same claim to

a valid final judgment. Id.

In this matter, Morales does not dispute that the instant suit raises the same

claims, against the same parties, as previously asserted in the federal suit.

However, exceptions to the federal law of resjudicata exist. Terrebonne Fuel &

Lube, Inc. v. Placid Refining Co., 95- 654, 95- 671 ( La. 1/ 16/ 96), 666 So. 2d 624,

634. Such exceptions include circumstances when there is an express reservation

of claims, when the defendant acquiesces in such a reservation, or when the court

in the first action has expressly reserved the plaintiff's right to maintain the second

action. Id. The Louisiana Supreme Court recognized another such exception in

Reeder, supra, finding that res judicata based on claim preclusion is precluded if

the federal court clearly declined, or clearly would have declined, pendent

jurisdiction. Reeder, 623 So. 2d at 1273; Terrebonne, 666 So. 2d at 634. This

Court applied Reeder in Benton, 672 So. 2d 720, stating that in order for res

judicata to bar pendent state claims in a subsequent state law proceeding three

requirements must be met: first, the federal court must have jurisdiction over the

federal law claims; second, it must exercise that jurisdiction and render a judgment

on the merits; and third, there must have been pendent state law claims that were

not litigated due to a failure of the plaintiff to assert the claims. 5 Benton, 672

So. 2d at 722.

5 More recently, the Louisiana Supreme Court applied Reeder in O' Brien v. Orleans Par. Sch.
Bd., 2000- 1925 ( La. 9/ 29/ 00), 769 So. 2d 1218.

1.1

The present case does not meet the Benton requirements of res judicata.

As set forth above, the federal court exercised jurisdiction over Morales' federal

law claims, and therefore had pendent jurisdiction over the state law claims that

arose out of the same operative facts. However, upon dismissal of the federal law

claims, the federal court stated that if Morales sought to amend her complaint, it

would decline to exercise pendent jurisdiction over her state law claims and

dismissed the state claims without prejudice. 6 Thus, the federal court expressly

declined to exercise pendent jurisdiction over Morales' state law claims.

Accordingly, the federal doctrine of claim preclusion does not apply in this matter,

and Morales is not barred from filing her state law claims in the 21St JDC. See

Samour, 818 So. 2d at 174- 75.

We now consider the federal doctrine of collateral estoppel, or issue

preclusion. Issue preclusion bars the relitigation of issues actually litigated and

necessarily decided in an earlier case between the same parties. Under issue

preclusion, once an issue of ultimate fact is actually and necessarily determined

by a court of competent jurisdiction, that determination is conclusive in subsequent

suits based on a different cause of action involving a party to the prior

litigation. Samour, 818 So. 2d at 175. For issue preclusion to apply, the issue in

question must have been identical to that in the original action, actually litigated

in the original action, and a necessary part of the judgment in the earlier

action. Id.

In this matter, Dr. McCulloh argues that issue preclusion applies to bar

Morales' state law claims in the instant suit. Dr. McCulloh points out that the July

10, 2019 order denying Morales' motion to amend judgment stated that the federal

court " chose to exercise supplemental jurisdiction over the state law claims" and

6 Moreover, we note that the United States Supreme Court has determined that a dismissal " without
prejudice" is a dismissal that does not bar the plaintiff from filing the same claim at a later date.
See Semtek Int'I Inc. v. Lockheed Martin Corp., 531 U. S. 497, 505- 06, 121 S. Ct. 1021, 1027,
149 L. Ed. 2d 32 ( 2001); see also Rivera v. PNS Stores, Inc., 647 F. 3d 188, 194 ( 5th Cir. 2011)
Without prejudice' indicates that the suit is dismissed without a decision on the merits and is not
conclusive of the rights of the parties"); Int'I Energy Ventures Mgmt., L. L. C. v. United Energy
Grp., Ltd., 818 F. 3d 193, 202, fn 25 ( 5th Cir. 2016) (" As the claim or claims against the nondiverse
defendant must be dismissed without prejudice,' the plaintiff is not barred by res judicata from
refiling those claims in state court if he so desires.").

7

dismissed the state law claims on a substantive legal finding that Morales had

failed to exhaust her state administrative remedies pursuant to the [ LPLRA]." Thus,

Dr. McCulloh contends that the federal court decided an issue of law which was

necessary to the judgment of dismissal, and issue preclusion bars any relitigation

of the question of whether Plaintiff exhausted administrative remedies as required

by the LPLRA. Dr. McCulloh further maintains that there is no evidence that Morales

satisfied exhaustion requirements between the federal dismissal and the filing of

her lawsuit in the 21St JDC, such that her claims remain precluded and should be

given res judicata effect.

We disagree. As set forth above, under issue preclusion, once an issue of

ultimate fact is actually and necessarily determined by a court of competent

jurisdiction, that determination is conclusive. Samour, 818 So. 2d at 175. In the

original suit, the July 2, 2019 ruling explicitly stated that the dismissal of Morales'

state law claims was based on her failure to a//egeexhaustion of her administrative

remedies. Thus, the issue of ultimate fact actually determined by the federal court

in the July 2, 2019 ruling was whether Morales alleged exhaustion of her

administrative remedies. In the instant suit, Morales affirmatively alleged that she

exhausted her administrative remedies. Therefore, the issue in the instant matter

may more accurately be identified as whether Morales has or has not exhausted

her administrative remedies.' As the issue previously determined is not identical

to the issue presently in question, issue preclusion does not apply.$

Moreover, were we to accept Dr. McCulloh' s argument, Morales' failure to

plead exhaustion in her original suit would effectively become dispositive of the

We make no determination and express no opinion as to whether Morales has exhausted her
administrative remedies, or whether she might prevail on the merits of her claims in the event that
she has done so.

8 To the extent the federal court's denial of Morales' motion to amend judgment (motion to amend)
stated that the July 2, 2019 ruling on the Livingston Parish defendants' motions to dismiss involved
a " substantive legal finding that Morales had failed to exhaust her state administrative remedies
pursuant to the [ LPLRA]," we make several observations. First, the ruling on the motion to amend
is not before us. Second, in denying Morales' motion to amend, the federal court expressly, and by
definition, maintained the July 2, 2019 ruling on the motion to dismiss in its original form. Third,
the ruling on the motion to amend is inconsistent with the text of the July 2, 2019 ruling, which
explicitly stated that the dismissal of Morales' state law claims was based on her failure to allege
exhaustion, and which preemptively stated that the federal court would decline to exercise
supplemental jurisdiction if Morales sought to amend her state law claims, as discussed herein.

merits of her state law claims. Under federal law, resjudicata does not apply unless

the party claimed to be barred had a full and fair opportunity to litigate the claim

in the first action. Benton, 672 So. 2d at 722; see also James Wm. Moore, Moores

Federal Practice Third Edition § 131. 41[ 1] ( 2014) ( noting that "[ e] ven if all of the

other prerequisites for claim preclusion are met, it will not be applied if the party

against whom the prior judgment is asserted did not have a full and fair

opportunity to litigate the claim in the prior proceeding'; Board of Supervisors

of Louisiana State Univ. v. Dixie Brewing Co., Inc., 2014- 0641 ( La. App. 4

Cir. 11/ 19/ 14), 154 So. 3d 683, 692, fn 8. In this matter, the federal court dismissed

Morales' claims without prejudice, and preemptively indicated that in the event

Morales sought leave to amend her state law claims, the federal court would

decline to exercise supplemental jurisdiction over those claims, on the basis of the

dismissal of the federal law claims. We do not find that the federal court' s refusal

to exercise supplemental jurisdiction over Morales' state law claims should deprive

9
Morales of a full and fair opportunity to litigate her state law claims. Finally, we

again emphasize that the doctrine of resjudicata is strictijuris, and any doubt

concerning application of the principle of resjudicata must be resolved against its

application. Griffin, 812 So. 2d at 730. Accordingly, we find that the trial court

erred in finding that resjudicata bars Morales from pursuing her state law claims

in the 21St JDC.

CONCLUSION

For the foregoing reasons, we reverse the February 18, 2020 judgment of

the trial court granting Dr. McCulloh' s exception of resjudicata. Costs are assessed

against Dr. McCulloh.

REVERSED.

9 We note this Court' s previous opinion in Webb v. Morella, 2016- 1153 ( La. App. 1 Cir. 6/ 21/ 17),
224 So. 3d 406, but find it to be distinguishable from the matter before us. In Webb, the federal
court had previously ruled on issues of fact which were necessary to the plaintiffs' state law claims.
Id. at 411. In this matter, the federal court's ruling addressed Morales' failure to plead exhaustion
of administrative remedies in the original suit, and did not make a determination of a contested
issue of fact.

9