G. TIDWELL, District Judge
The above-styled matter is presently before the court on:
(1) defendant J. Steven Cheatwood's motion to dismiss [docket no. 4];
(2) plaintiff's motion for leave to file response to motion to dismiss, with proposed response [docket no. 6].
On July 7, 2006, plaintiff, proceeding pro se, filed the instant action in the Superior Court of Fulton County, Georgia against numerous defendants, including the Honorable Thomas W. Thrash, United States District Judge for the Northern District of Georgia. On August 31, 2006, Judge Thrash removed the action to this court pursuant to 28 U.S.C. 1442(a)(1) (3). On October 19, 2006, defendant Cheatwood, asserting res judicata, filed a motion to dismiss. On November 27, 2006, plaintiff filed a motion for leave to respond out of time. Motion for leave to respond
Plaintiff, citing out-of-state treatment for ongoing medical problems, requests leave to file his response to defendant Cheatwood's motion to dismiss out of time. Having considered plaintiff's motion, the court hereby GRANTS plaintiff's motion for leave to respond out of time [docket no. 6]. Plaintiff's proposed response to the motion to dismiss was attached as an exhibit to plaintiff's motion for leave and will be considered by the court in resolving defendant Cheatwood's motion to dismiss.
Motion to dismiss
Defendant Cheatwood moves to dismiss plaintiff's complaint against him pursuant to Fed.R. Civ P. 12(b)(6) for failure to state a claim. Defendant Cheatwood argues that plaintiff's claims are barred by the doctrine of res judicata and that plaintiff's claims should be dismissed on the merits.
Standard
A motion to dismiss under Rule 12(b)(6) attacks the legal sufficiency of the complaint. It is viewed with disfavor and rarely granted. See e.g., International Erectors, Inc. v. Wilhoit Steel Erectors Rental Service, 400 F.2d 465, 471 (5th Cir. 1968). A complaint should not be dismissed for failure to state a claim unless the plaintiff can prove no set of facts entitling him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984);Pataula Electric membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir. 1992). The court is to presume true all of the complaint's allegations and make all reasonable inferences in favor of the plaintiff. Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). The rules require nothing more than "a short and plain statement" that will give the defendant fair notice of the claims and the grounds upon which they are based. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Facts
In light of the foregoing standard, the court finds the following pertinent facts for the purpose of resolving this motion to dismiss only. Washington Mutual Bank filed a foreclosure dispossessory proceeding in the Magistrate Court of Fulton County Georgia, Civil Action File No. 04ED215652. Plaintiff filed an answer and counterclaim in the case and removed it to the United States District Court for the Northern District of Georgia. Judge Thrash later remanded the action to the Magistrate Court of Fulton County. A hearing was held and judgment was granted to Washington Mutual Bank. On June 9, 2005, plaintiff appealed the judgment to the Superior Court of Fulton County, Georgia. Civil Action No. 2005-CV-10205-6.
On June 9, 2005, defendant Cheatwood "without being the legal or lawful counsel for Washington Mutual Bank, illegally induced Tonia Bragg, a deputy clerk of the Magistrate Court, to accept and legally execute a Rule NISI legal pleading in the case, knowing that he had no legal or lawful authority to file the same."
Discussion
Defendant Cheatwood asserts that plaintiff's claims against him are barred by res judicata because the claims were raised or should have been raised in a previous civil action. The doctrine of res judicata, or claim preclusion, will bar a subsequent action if: "(1) the prior decision was rendered by a court of competent jurisdiction; (2) there was a final judgment on the merits; (3) the parties were identical in both suits; and (4) the prior and present causes of action are the same." Davila v. Delta Air Lines, Inc. 326 F.3d 1183, 1187 (11th Cir. 2003). This bar pertains not only to claims that were raised in the prior action, but also to claims that could have been raised previously. Id.
The instant action is virtually identical to the other action against defendant Cheatwood in this court. See Bush v. Cheatwood, et al., Civil Action No. 1:05-cv-2923-TWT. In the earlier action, Judge Thrash found that plaintiff failed to state a claim against defendant Cheatwood because plaintiff's complaint "fails to allege any facts sufficient to show a conspiracy such that Mr. Cheatwood was transformed into a state actor." Bush v. Cheatwood, et al., Civil Action No. 1:05-cv-2923-TWT (N.D. Ga. May 16, 2006). Therefore, plaintiff's claims against defendant Cheatwood are barred by res judicata.
Additionally, this court agrees with the conclusions of Judge Thrash and further finds, for the reasons set forth in defendant Cheatwood's motion to dismiss, that plaintiff's claims against defendant Cheatwood must be dismissed on the merits. Therefore, defendant Cheatwood's motion to dismiss [docket no. 4] is GRANTED.
Summary
(1) Defendant J. Steven Cheatwood's motion to dismiss [docket no. 4] is GRANTED;
(2) Plaintiff's motion for leave to file response to motion to dismiss, with proposed response [docket no. 6] is GRANTED.
SO ORDERED.