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WATSON v. STYNCHOMBE
PER CURIAM:
Watson sued the Sheriff and Deputy Sheriff of Fulton County, Georgia, under 42 U.S.C. § 1983, seeking damages for the alleged wrongful withholding of personal property taken from him upon his incarceration. He alleged jurisdiction by virtue of 28 U.S.C. §§ 1331 and 1343. The district court dismissed his petition on the ground that it was a verbatim copy of a previous petition which had been dismissed for failure to state a civil rights cause of action.
This original dismissal was clearly for lack of § 1983 based jurisdiction and expressly preserved plaintiff's right to litigate his property loss in state court. Defendants' contention that it had res judicata effect is not well taken. Hughes v. United States, 71 U.S. (4 Wall.) 232, 18 L.Ed. 303 (1866); Tyler Gas Service Co. v. Federal Power Commission [101 U.S.App.D.C. 184], 247 F.2d 590 (1957); see Fed.R.Civ.P. 41(b).
We vacate and remand to the district court for reconsideration in light of Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), which held that there is no distinction between personal liberties and property rights with respect to jurisdiction under 28 U.S.C. § 1343(3). See Montana v. Harrelson, 469 F.2d 1091 (5th Cir. 1972).
Vacated and remanded.
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