All right, the first case we're going to start with is a duck in versus fuller and Mr. Braga. I'll be right here from you. Yes, thank you, Your Honor. As Director of the Appellate litigation clinic at the University of Virginia School of Law, I'd like to introduce to the court this morning third year student, Ricardo Camponsano, who has satisfied the requirements for practice before this court and who has the consent of our client to argue his appeal this morning. All right, thank you very much. Welcome, Mr. Camponsano. We'll hear from you. Thank you, Your Honor. May it please the court. The court below found that Mr. Duckett's eighth amendment claim was precluded on the basis of an earlier suit, McFadden 1, to which Mr. Duckett was not a party. Instead, the district court, rejecting the magistrate judge's recommendation that claim preclusion should not apply here, found Mr. Duckett to be in privity with the losing party in McFadden 1, and therefore found non-party claim preclusion available
. That finding was erroneous for two reasons. First, the three supposed facts upon which the district court relied in making its privity determination are all either unsupported by the record or irrelevant to the issue of privity. Second, even if those facts are accepted as true, they still do not bring Mr. Duckett's claim within any of the six exclusive categories of exceptions to the general rule against non-party claim preclusion, outlined by the Supreme Court in Taylor, Visturgell. The first of the three facts upon which the district court relied was that, quote, if McFadden 1 had been successful, then Mr. Duckett would have benefited. This finding is irrelevant to privity. As the Supreme Court noted in South Central Bell telephone, the mere fact that a non-party benefits from some early litigation does not mean necessarily that non-party is similarly precluded on the basis of that litigation. Doesn't go two ways, does it? In other words, claim preclusion will preclude somebody from litigating something a second time, but it won't go the other way, can't be used offensively. If you win on a claim preclusion, you can't use that against a new defendant. That's correct, Your Honor. That is your, the essence of your argument with respect to the district court's ruling, right? The essence of our argument, Your Honor, is that the error committed by the district court was finding Mr. Duckett the plaintiff and Mr. McFadden to be in privity. And in that sense, yes, claim preclusion is being used essentially, offensively, against Mr
. Duckett to say that he is in privity with the plaintiff in McFadden 1, and is therefore claim precluded. The Supreme Court stated that the plaintiff should not expect to be precluded as a matter of raised due to Cotta simply because they may well have expected that the earlier litigation provided them some benefit. They would simply find that that case finds them in the same way that a decided case finds every citizen. So to agree with the district court that this would have- All correctly that the earlier McFadden suit involved different institution? That's correct, Your Honor. The McFadden suit was filed with relation to allegedly unconstitutional actions taken at Kirkland correctional institution where Mr. Duckett was not housed, and Mr. Duckett has only been there on three limited occasions to get medical care. In contrast, this suit brought by Mr. Duckett is with regard to allegedly unconstitutional actions taken at Kirkland correctional institution. The second fact upon which the district court relied was finding that the suits seek similar orders and that the complaints between the two suits are, quote, at their core identical. This finding is similarly irrelevant to privity and suffers from multiple factual errors. First, the two suits allege different injuries. Although it's true that both claim that the two prisons are serving insufficient portions of food and are thereby serving insufficient nutrients to the respective plaintiffs, Mr. Duckett goes further and states that the Kershaw prison is falsely publishing as beef dishes that instead contain only mechanically separated chicken or organ meats. Further, in Mr
. Duckett's special interrogatory in the joint appendix at 26, he lists ailments from which he suffers and medications that he has to take. Yeah, but you can't rest your argument on that business. If he's bound by the first suit, he's going to have to allege those things in the first suit or be precluded by him. It seems to me your argument is whether he's bound by the first suit because of this relationship with McFadden. That's correct, Your Honor. And I merely highlight- Yeah, I mean, sorry. Is that correct? Do you concede that this is the same claim for racetrack autoproposes in the two suits? No, Your Honor. We would not concede that point necessarily, but we do highlight this finding by the district court merely to illustrate that it is irrelevant to the privity determination. And simply- Well, I'm guess I'm not clear on this. So you're not conceding it or you are conceding it. You do think the two claims? I thought in response to it, Neem, are you acknowledged that for racetrack autoproposes, you would have to concede that the two claims are similar or one was foreclosed by the other? I apologize for the confusion, Your Honor. We are not conceding that the two causes of action are the same because Mr. Duckett is alleging that there is the false publication. Please let me ask you, Mr. Duckett filed the McFadden suit himself and lost
. You think he could file this suit? No, Your Honor. Well, in that case, the third question- I mean, your argument would be that this suit is different from the one he just filed, and therefore is not precluded. Now you're saying he would be precluded. And those are Duckett filed the first suit in the other institution and then filed this suit. Would he be precluded? Well, the reason that he would- Would he be- Yes or no? Yes, Your Honor, because in such a situation, Mr. Duckett would have had the opportunity to raise the false publication balance in this- Well, that was what my question was about then. You shouldn't be arguing the difference in the suits. If Duckett would be precluded, then the only issue is whether Duckett is in a relationship with McFadden, such that he's bound by the McFadden judgment. But the similarity in the complaints is similar enough that you say if Duckett filed them both, he'd be precluded on the second, wouldn't he? Yes, Your Honor. Well, I will concede that point then. But- Well, I mean, you're not a horse- I mean, you're not a horse- I mean, you're not a horse- I mean, you're not a horse- I mean, you're not a horse- Sure. Well, my apologies. The focus of our appeal, however, is the privity issue as between McFadden and Duckett, which is one element of the requirements for claim reclusion. The similarity between the causes of action is an independent issue and is not the one we are arguing primarily here on appeal. The third and final factual finding upon which the district court based its privity finding was that, quote, if McFadden one had been successful, then Duckett could have argued that issue preclusion bars the defendants from denying litigated facts
. That finding is both speculative and irrelevant. It is speculative in the sense that McFadden one was, of course, not favorable for the plaintiff there. So it is difficult to know what whether issue preclusion would have applied in this case as a result. And because issue preclusion only applies to those issues that were not only litigated, but were also necessary to the judgment in the earlier suit. It is impossible to know what issues would have been deemed necessary to the judgment in the district court's hypothetical opposite outcome. Seems to me that the argument you're going to hear against you has to be that the Duckett suit is nothing more than McFadden's effort to have an end run around raised due to Coddup because he lost the earlier suit. And so he's using Duckett as a puppet. That's got to be the argument, isn't it? Yes. And we have taken note in the appellate briefs that that argument has been raised. And that is certainly one of the categories under Taylor V. Sturgeon by which non-fight claim preclusion could be found. But with regard to that category, the Taylor court stated that court should look to agency law in making that determination and that, quote, preclusion is appropriate under that category. Only if the punitive agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication. However, merely getting help from a third party does not automatically make one that third party's agent or mean that one is under the control of that third party. Inmates who are illiterate or who may be intimidated by the workings of the judicial system may need the assistance of a jailhouse lawyer in order to properly pursue their claims
. We believe that Mr. McFadden's role is best seen as that of a jailhouse lawyer assisting Mr. Duckett in Mr. Duckett's pursuit of Mr. Duckett's claims to find an agency relationship based solely on that would imply that indigent inmates, I'm sorry illiterate inmates, could be barred from pursuing claims in court on their own behalf simply because their jailhouse lawyer pursued similar litigation without the illiterate. They don't have to eat the same food, don't they? So Duckett has his own injury. Yes, Duckett has injuries that are personalized to himself. He doesn't like the, I looked at the menu, it didn't look that bad, but I suppose the preparation suffers, maybe at least according to his allegations. Well, right, having not tasted it myself, I can't testify personally to that, but I would say that because part of Duckett's complaint involves false publication, even if the menu may look appetizing on paper, there is no way to know whether that is still not sufficient to protect him against cruel, unusual punishment under the Eighth Amendment. Turning to the other Taylor categories in issue here, one is whether there is a substantive legal relationship between Mr. McFadden and Mr. Duckett. The Taylor Court stated that those kinds of relationships are property-based and gave the examples as those between an assigner and an assignee or a bailer and a baili. And here we do not see any such kind of relationship or any kind of similar fiduciary relationship at all. Mirror association between two persons is not a legal relationship necessarily, let alone a substantive legal relationship
. It is not enough that Mr. McFadden and Mr. Duckett have appeared previously as co-plaintiffs in earlier suits and to find as much would overly broaden this category. The third and final category that was placed into question here on appeal was the adequate representation category. And the Taylor Court stated that such adequate representation exists only if either the party in the early litigation understood him or herself to be acting in a representative capacity or the earlier court took steps to protect the interests of non-parties. Here there is no evidence that Mr. McFadden understood himself to be acting in a representative capacity and further this court has held in Fowler-V-Leah that it is plain error for a pro-seid inmate to represent other pro-seid inmates in such an action. And second, there is no evidence that the earlier court took any steps to protect the interests of non-parties like Mr. Duckett. In part because the court did not know who Mr. Duckett was, let alone whether he had interest that needed protection. A better example of a case that would fit that requirement would be, say, a class action lawsuit wherein the earlier court could create opt-in or opt-out provisions that would help to protect the non-parties' interests. So the three factual findings that I alluded to earlier from the district court, although erroneous and irrelevant to the issue of privity. Was this a 12v6 decision? Yes, the appellees asserted a claim-proclusion-based affirmative defense and the lower court granted it on 12v6 grounds. So the three factual findings upon which the district court relied led the district court to conclude that, quote, McFadden and Duckett had the same legal right and were therefore in privity
. But to accept this reasoning from the district court requires also accepting the losing argument from Taylor V. Sturgell, namely that non-partie claim-proclusion can be found when there is simply a, quote, close enough relationship between the two individuals. The Taylor court sought to get rid of the gray area with respect to non-partie claim-proclusion and in light of Taylor. The district court's reasoning falls well short of a sufficient factual basis to find non-partie claim-proclusion available. And further, with respect to Taylor, this court reviews claim-proclusion-based motions to dismiss de novo. And it is not clear from neither the order nor the recommendation of the magistrate judge what test the district court was employing in making its privity determination. The Taylor court made the test very clear if the facts of a case do not fit within any of the six exclusive categories outlined in Taylor, then non-partie claim-proclusion cannot be applied. So in conclusion, ultimately, there are only two inquiries that this court needs to make. The first is whether the district court had an adequate- How did the court incorporate the prior decision? Was it judicial notice? The duckets complaint didn't allege the prior lawsuit, did it? No, your honor. How did the court get that within the decision-making context? The Appleese raised the issue in their motion to dismiss. This is- The court to take judicial notice of it is that how it happened? It was cited in their motion. Well, I know, but the 12b6 just challenges the face of the complaint to see whether it's sufficient. And they can't add it unless it's a summary judgment motion. But I suppose they can add it by judicial notice or any some aspect where it's in the public domain where the court can take it into account. Yes, your honor
. And I believe the Appleese did cite to that in their brief, citing to colonial pen insurance stating that this court or that a court may take judicial notice of other proceedings that are going on before it or have been before it in the past. Okay. That's all right. Yes, your honor. If you have no further questions. Okay. Thank you, Mr. Compton. Thank you. Ms. Beas. May it please the court. My name is Sheila Beas and I represent Appleese Fuller and Ball in this matter. We were respectfully request that the court affirm the district court's grant of Appleese motion to dismiss on race due to cotter grounds. And the central inquiry here obviously is whether there was privity between appellant and inmate McFaton
. And just to address your honor's question, procedurally this was a 12b6 motion to dismiss and judge child's the district court judge sought to take judicial notice of these prior proceedings. And interestingly, as we put it. After the judge go beyond that, in other words, this complaint is in segregated complaint. It's now been segregated and Mr. Duckett has filed additional allegations with respect to how the food injured him in this type of thing. How do we get a notion that somehow this is an end run around race due to cotter? That's being orchestrated by McFaton. Well I understand that that is an interesting leap, so to speak. So this was raised in our motion to dismiss the attorney who handled the district court, she's actually the honorable judge Newman now, handled McFaton one and McFaton two. And judge child's handled all of these cases that were severed. And so in the motion to dismiss, we raised the issue of race due to cotter that Mr. McFaton is in privity with Mr. Duckett in this case after these cases were severed. And so that is kind of how it was there. And we would- How did you make that allocation? You just put it in your responsive paper memorandum? Yes, it was in our motion to dismiss, that was the grounds. And what did you get for support for that? What did you rely on to make that allocation? We relied on the filings from the McFaton one lawsuit as well as- Well, McFaton one, McFaton filed on his own behalf. So there's no issue there, right? Well, actually, McFaton one, he filed it on behalf of himself and another inmate. And that McFaton one was actually severed. That was not Duckett. No, it was not Duckett. So McFaton filed a lawsuit on behalf of himself and another inmate. Yeah. So that's clear now how do you go further and establish that McFaton was somehow in privity with Duckett? Well, it's our position that McFaton is, as you're on our state, kind of the puppeteer and structuring the litigation. No, but I know that you're positioned, but where do you get that? Based on concepts of privity and what- Where the facts in this case? The facts in this case are that both of the inmates are inmates within the South Carolina Department of Corrections. Both of the inmates are challenging the nutritional quantity of the food and it is a master menu. So the fact that they are at separate institutions is immaterial to the analysis because the food is the same, whether it's at Kirkland or at Kershaw. So you have that. Both of the inmates are also raising the same right. They're challenging the nutritional quality and the context of their eighth amendment constitutional right against cruel and unusual punishment. That's it. Yes, Your Honor
. So there's no issue there, right? Well, actually, McFaton one, he filed it on behalf of himself and another inmate. And that McFaton one was actually severed. That was not Duckett. No, it was not Duckett. So McFaton filed a lawsuit on behalf of himself and another inmate. Yeah. So that's clear now how do you go further and establish that McFaton was somehow in privity with Duckett? Well, it's our position that McFaton is, as you're on our state, kind of the puppeteer and structuring the litigation. No, but I know that you're positioned, but where do you get that? Based on concepts of privity and what- Where the facts in this case? The facts in this case are that both of the inmates are inmates within the South Carolina Department of Corrections. Both of the inmates are challenging the nutritional quantity of the food and it is a master menu. So the fact that they are at separate institutions is immaterial to the analysis because the food is the same, whether it's at Kirkland or at Kershaw. So you have that. Both of the inmates are also raising the same right. They're challenging the nutritional quality and the context of their eighth amendment constitutional right against cruel and unusual punishment. That's it. Yes, Your Honor. So you have McFaton filing a suit on his own behalf and another inmate and another institution. He comes to this institution and he files a claim of the challenging the menu and Duckett files one and two. And both of them are in parallel in this institution and they're challenging the same menu. And so that means that they're now bound by the earlier- Well, Your Honor, a little bit differently. Duckett did not file this lawsuit separately. This is Duckett's lawsuit. It's 16 of them. Actually, Your Honor, there were 16 of them in one case and there were 90 of them in another case. So Mr. Duckett was involved with Mr. McFaton and several other inmates in multiple purported class action lawsuits challenging the nutritional quality of the food within SCDC. So it wasn't it wasn't Duckett raising the claim completely on his own. This is a sever came. It's a it's a very odd procedural posture. Were you you suggest that the facts you've just outlined are sufficient to make to make Duckett the puppet of McFaton
. So you have McFaton filing a suit on his own behalf and another inmate and another institution. He comes to this institution and he files a claim of the challenging the menu and Duckett files one and two. And both of them are in parallel in this institution and they're challenging the same menu. And so that means that they're now bound by the earlier- Well, Your Honor, a little bit differently. Duckett did not file this lawsuit separately. This is Duckett's lawsuit. It's 16 of them. Actually, Your Honor, there were 16 of them in one case and there were 90 of them in another case. So Mr. Duckett was involved with Mr. McFaton and several other inmates in multiple purported class action lawsuits challenging the nutritional quality of the food within SCDC. So it wasn't it wasn't Duckett raising the claim completely on his own. This is a sever came. It's a it's a very odd procedural posture. Were you you suggest that the facts you've just outlined are sufficient to make to make Duckett the puppet of McFaton. And this is really McFaton's lawsuit. Yes, Your Honor. And it also would direct the court to page 78 of the record. And the informal brief, Mr. Duckett, the relief that he seeks is discovery to allow the case to get facts to support McFaton's mandamus claim. So appellant himself is claim that the whole purpose of this lawsuit and the relief that he is seeking from this court is to have discovery to seek facts to support McFaton's lawsuit. So these are all prisoners experiencing the same problem. They're all eating this food and they're all complaining about the food and they're all filing lawsuits. Yes, Your Honor. The fact that one of these prisoners in some other context earlier lost one of those lawsuits. Does that mean all these prisoners are now bound? Yes, Your Honor. And because there was a set main menu that was served to all of the inmates. And another way they're challenging the same thing, but we have a different person challenging them. We have Duckett challenging them. He's the one that has to eat that food
. And this is really McFaton's lawsuit. Yes, Your Honor. And it also would direct the court to page 78 of the record. And the informal brief, Mr. Duckett, the relief that he seeks is discovery to allow the case to get facts to support McFaton's mandamus claim. So appellant himself is claim that the whole purpose of this lawsuit and the relief that he is seeking from this court is to have discovery to seek facts to support McFaton's lawsuit. So these are all prisoners experiencing the same problem. They're all eating this food and they're all complaining about the food and they're all filing lawsuits. Yes, Your Honor. The fact that one of these prisoners in some other context earlier lost one of those lawsuits. Does that mean all these prisoners are now bound? Yes, Your Honor. And because there was a set main menu that was served to all of the inmates. And another way they're challenging the same thing, but we have a different person challenging them. We have Duckett challenging them. He's the one that has to eat that food. Yes, Your Honor, but that food has already been determined, judicially determined, to be nutritionally sound. So you don't get to Mr. Duckett's individual int- Well, we're not a bind McFaton, won't it? Yes, it will. And it is. So the question is whether to bind Duckett if he makes his own effort to challenge it? Yes, Your Honor. And that is the key inquiry here. Is there privity sufficient enough between these two that it binds? And it is our position that there is. Mr. Duckett, excuse me, Mr. McFaton is not just a mere scrivener. He's not merely just a jailhouse lawyer. Yes, he does have a reputation as that, but when you look- Where are you getting all these facts? I'm sorry. Where are you getting all these facts that you're telling me? These are either in the filings with the court. They are in the various, any, the ECF, dockets with the court and the various litigation that's gone on with this. And I've cited to the very- But they're in your brief, but below open, they're not supported by anything
. Yes, Your Honor, but that food has already been determined, judicially determined, to be nutritionally sound. So you don't get to Mr. Duckett's individual int- Well, we're not a bind McFaton, won't it? Yes, it will. And it is. So the question is whether to bind Duckett if he makes his own effort to challenge it? Yes, Your Honor. And that is the key inquiry here. Is there privity sufficient enough between these two that it binds? And it is our position that there is. Mr. Duckett, excuse me, Mr. McFaton is not just a mere scrivener. He's not merely just a jailhouse lawyer. Yes, he does have a reputation as that, but when you look- Where are you getting all these facts? I'm sorry. Where are you getting all these facts that you're telling me? These are either in the filings with the court. They are in the various, any, the ECF, dockets with the court and the various litigation that's gone on with this. And I've cited to the very- But they're in your brief, but below open, they're not supported by anything. In other words, McFaton may be the jailhouse lawyer. I'm not sure that that's been demonstrated, but number one, but number two, what difference is that made? Well, in our opinion, Your Honor, it doesn't matter that he's a jailhouse lawyer. I was just responding to their argument. The fact is, I think that it takes a step further that he was a party plaintiff in these lawsuits. He was merely the scryviner. I think it's a different inquiry, but the fact that he has been a party plaintiff to all these lawsuits that started out as purported class actions, which I understand are not allowed, and we're certain you're not advocating that as well. The court seemed to apply a principle that on claim preclusion, if it goes both ways, they said if he had won, there would be a benefit, and therefore he's bound by it if they lost. Yes, the district court- Is that a correct statement of law? I don't believe that's a correct statement of law, but I would direct the court's attention. One of the reasons that Mr. Duckett contends that the claims are identical and they weren't previously litigated in his objections to the report recommendation are that he has not seen any changes in the food, and that's actually, in fact, what Mick Faden won mandated, because the food was found to be nutritionally sound there did not need to be any changes in the food. And this is demonstrating that Mick Fad, that, excuse me, Mr. Duckett is attempting to relitigate these issues, because this is the same issue of whether SCDC needs to change the food that is providing to the inmates. And so if a district court has already found that SCDC does not need to make that change, then similarly Mr. Duckett's complaint about this has already been litigated. He is attempting to relitigate what? What determined against him? That prior lawsuit didn't bind him
. In other words, McFaton may be the jailhouse lawyer. I'm not sure that that's been demonstrated, but number one, but number two, what difference is that made? Well, in our opinion, Your Honor, it doesn't matter that he's a jailhouse lawyer. I was just responding to their argument. The fact is, I think that it takes a step further that he was a party plaintiff in these lawsuits. He was merely the scryviner. I think it's a different inquiry, but the fact that he has been a party plaintiff to all these lawsuits that started out as purported class actions, which I understand are not allowed, and we're certain you're not advocating that as well. The court seemed to apply a principle that on claim preclusion, if it goes both ways, they said if he had won, there would be a benefit, and therefore he's bound by it if they lost. Yes, the district court- Is that a correct statement of law? I don't believe that's a correct statement of law, but I would direct the court's attention. One of the reasons that Mr. Duckett contends that the claims are identical and they weren't previously litigated in his objections to the report recommendation are that he has not seen any changes in the food, and that's actually, in fact, what Mick Faden won mandated, because the food was found to be nutritionally sound there did not need to be any changes in the food. And this is demonstrating that Mick Fad, that, excuse me, Mr. Duckett is attempting to relitigate these issues, because this is the same issue of whether SCDC needs to change the food that is providing to the inmates. And so if a district court has already found that SCDC does not need to make that change, then similarly Mr. Duckett's complaint about this has already been litigated. He is attempting to relitigate what? What determined against him? That prior lawsuit didn't bind him. No, Your Honor, because he was not a party to that particular lawsuit, but that issue has already been binding. You want him bound now and he hasn't had his day in court? Well, Your Honor, a day in court doesn't necessarily mean a trial. He has definitely filed this lawsuit. But it also does, it means more than having your complaint dismissed, your complaint in which every allegation has to be construed in the favor of the person that files it in play. I think Your Honor, the purpose of a 12B6 motion does tend to have those effects of not having people to fully litigate to some regedumate stage, or to a trial. That's a toll purpose. What do you mean it tends to have that effect? Well, Yes, Your Honor, that is his purpose. I'm sorry, I'm a spoke. So that does not necessarily mean he's not gotten his day in court. That's a threshold. Well, we assume all the faxies alleged to be true. Yes, Your Honor. And ask the question, is it sufficient? Yes. And it may be that if there was an eighth substantive eighth amendment challenge based on what he says, he may not survive. We don't know because that's not the challenge here
. No, Your Honor, because he was not a party to that particular lawsuit, but that issue has already been binding. You want him bound now and he hasn't had his day in court? Well, Your Honor, a day in court doesn't necessarily mean a trial. He has definitely filed this lawsuit. But it also does, it means more than having your complaint dismissed, your complaint in which every allegation has to be construed in the favor of the person that files it in play. I think Your Honor, the purpose of a 12B6 motion does tend to have those effects of not having people to fully litigate to some regedumate stage, or to a trial. That's a toll purpose. What do you mean it tends to have that effect? Well, Yes, Your Honor, that is his purpose. I'm sorry, I'm a spoke. So that does not necessarily mean he's not gotten his day in court. That's a threshold. Well, we assume all the faxies alleged to be true. Yes, Your Honor. And ask the question, is it sufficient? Yes. And it may be that if there was an eighth substantive eighth amendment challenge based on what he says, he may not survive. We don't know because that's not the challenge here. The only challenge here is that he can't even make the allegations because some other prisoner lost. Yes, Your Honor. Okay. And Your Honor, I believe we have covered everything that I intended to argue if there are no other questions on the rest of my brief. Thank you. Thank you. Mr. Compton, are you having something further? Just a couple of points I'd like to make on our bottle. First of all, as Your Honor alluded to, there is simply not evidence on record to indicate that Mr. Duckett is the puppet or agent or representative of Mr. McFadden. And on that basis alone, this decision should be reversed and sent back to the district court to conduct a proper, privity analysis. I believe the Apples attempted to argue that merely because Mr. Duckett and Mr. McFadden might be considered to be similarly situated, that there would be some sort of adequate representation of Mr
. The only challenge here is that he can't even make the allegations because some other prisoner lost. Yes, Your Honor. Okay. And Your Honor, I believe we have covered everything that I intended to argue if there are no other questions on the rest of my brief. Thank you. Thank you. Mr. Compton, are you having something further? Just a couple of points I'd like to make on our bottle. First of all, as Your Honor alluded to, there is simply not evidence on record to indicate that Mr. Duckett is the puppet or agent or representative of Mr. McFadden. And on that basis alone, this decision should be reversed and sent back to the district court to conduct a proper, privity analysis. I believe the Apples attempted to argue that merely because Mr. Duckett and Mr. McFadden might be considered to be similarly situated, that there would be some sort of adequate representation of Mr. Duckett by Mr. McFadden in the earlier litigation. And I'd like to quote from a case from a Southern District of Florida that kind of helps to make that distinction clear. There, the court stated that the defendants there were claiming that the plaintiffs in an earlier suit had adequately represented the plaintiffs in the present suit because they were all persons that happened to have mobility disabilities and were seeking similar relief. But in that case, the court stated that the defendant, Cites No Case Law, nor did the court on its own find any suggesting that such similar situation would be adequate to find adequate representation for the purposes of claim preclusion. Further, these were not class actions. Although Mr. McFadden in the earlier suit attempted to classify his suit as such, that argument and attempt was quickly thrown out by the district court because it is plain error for a pro-say inmate to attempt to represent in a class action on behalf of other pro-say inmates. And this is not an attempt to relitigate McFadden one by any means because Mr. Duckett had no opportunity to litigate in McFadden one. As your honor stated, Mr. Duckett has not had his day in court and therefore claim preclusion is plainly improper. And there are only- We had an unfortunate day in court. Yes. The case was dismissed
. Duckett by Mr. McFadden in the earlier litigation. And I'd like to quote from a case from a Southern District of Florida that kind of helps to make that distinction clear. There, the court stated that the defendants there were claiming that the plaintiffs in an earlier suit had adequately represented the plaintiffs in the present suit because they were all persons that happened to have mobility disabilities and were seeking similar relief. But in that case, the court stated that the defendant, Cites No Case Law, nor did the court on its own find any suggesting that such similar situation would be adequate to find adequate representation for the purposes of claim preclusion. Further, these were not class actions. Although Mr. McFadden in the earlier suit attempted to classify his suit as such, that argument and attempt was quickly thrown out by the district court because it is plain error for a pro-say inmate to attempt to represent in a class action on behalf of other pro-say inmates. And this is not an attempt to relitigate McFadden one by any means because Mr. Duckett had no opportunity to litigate in McFadden one. As your honor stated, Mr. Duckett has not had his day in court and therefore claim preclusion is plainly improper. And there are only- We had an unfortunate day in court. Yes. The case was dismissed. That's right. And he's not been allowed to have his full and fair opportunity to litigate. There are really only two inquiries that this court needs to make. The first is whether the district court had an adequate factual basis for its privity determination. And the second is whether the district court had an adequate legal basis for its determination. And the answer to both of those inquiries is no. And accordingly, this court should reverse the lower court's grant of Apley's motion dismiss and remand this case to the district court to allow it to subject the real facts of this case to the proper legal standard. There are no further questions. I'm Sonna. Thank you. I want to acknowledge the fact that the Professor Braga and you were appointed by the court to represent Mr. Duckett in the court. I'm going to ask you to come in this case and recognize and thank you for your help in this regard. We'll come down in Greek Council and then proceed on to the next case.
All right, the first case we're going to start with is a duck in versus fuller and Mr. Braga. I'll be right here from you. Yes, thank you, Your Honor. As Director of the Appellate litigation clinic at the University of Virginia School of Law, I'd like to introduce to the court this morning third year student, Ricardo Camponsano, who has satisfied the requirements for practice before this court and who has the consent of our client to argue his appeal this morning. All right, thank you very much. Welcome, Mr. Camponsano. We'll hear from you. Thank you, Your Honor. May it please the court. The court below found that Mr. Duckett's eighth amendment claim was precluded on the basis of an earlier suit, McFadden 1, to which Mr. Duckett was not a party. Instead, the district court, rejecting the magistrate judge's recommendation that claim preclusion should not apply here, found Mr. Duckett to be in privity with the losing party in McFadden 1, and therefore found non-party claim preclusion available. That finding was erroneous for two reasons. First, the three supposed facts upon which the district court relied in making its privity determination are all either unsupported by the record or irrelevant to the issue of privity. Second, even if those facts are accepted as true, they still do not bring Mr. Duckett's claim within any of the six exclusive categories of exceptions to the general rule against non-party claim preclusion, outlined by the Supreme Court in Taylor, Visturgell. The first of the three facts upon which the district court relied was that, quote, if McFadden 1 had been successful, then Mr. Duckett would have benefited. This finding is irrelevant to privity. As the Supreme Court noted in South Central Bell telephone, the mere fact that a non-party benefits from some early litigation does not mean necessarily that non-party is similarly precluded on the basis of that litigation. Doesn't go two ways, does it? In other words, claim preclusion will preclude somebody from litigating something a second time, but it won't go the other way, can't be used offensively. If you win on a claim preclusion, you can't use that against a new defendant. That's correct, Your Honor. That is your, the essence of your argument with respect to the district court's ruling, right? The essence of our argument, Your Honor, is that the error committed by the district court was finding Mr. Duckett the plaintiff and Mr. McFadden to be in privity. And in that sense, yes, claim preclusion is being used essentially, offensively, against Mr. Duckett to say that he is in privity with the plaintiff in McFadden 1, and is therefore claim precluded. The Supreme Court stated that the plaintiff should not expect to be precluded as a matter of raised due to Cotta simply because they may well have expected that the earlier litigation provided them some benefit. They would simply find that that case finds them in the same way that a decided case finds every citizen. So to agree with the district court that this would have- All correctly that the earlier McFadden suit involved different institution? That's correct, Your Honor. The McFadden suit was filed with relation to allegedly unconstitutional actions taken at Kirkland correctional institution where Mr. Duckett was not housed, and Mr. Duckett has only been there on three limited occasions to get medical care. In contrast, this suit brought by Mr. Duckett is with regard to allegedly unconstitutional actions taken at Kirkland correctional institution. The second fact upon which the district court relied was finding that the suits seek similar orders and that the complaints between the two suits are, quote, at their core identical. This finding is similarly irrelevant to privity and suffers from multiple factual errors. First, the two suits allege different injuries. Although it's true that both claim that the two prisons are serving insufficient portions of food and are thereby serving insufficient nutrients to the respective plaintiffs, Mr. Duckett goes further and states that the Kershaw prison is falsely publishing as beef dishes that instead contain only mechanically separated chicken or organ meats. Further, in Mr. Duckett's special interrogatory in the joint appendix at 26, he lists ailments from which he suffers and medications that he has to take. Yeah, but you can't rest your argument on that business. If he's bound by the first suit, he's going to have to allege those things in the first suit or be precluded by him. It seems to me your argument is whether he's bound by the first suit because of this relationship with McFadden. That's correct, Your Honor. And I merely highlight- Yeah, I mean, sorry. Is that correct? Do you concede that this is the same claim for racetrack autoproposes in the two suits? No, Your Honor. We would not concede that point necessarily, but we do highlight this finding by the district court merely to illustrate that it is irrelevant to the privity determination. And simply- Well, I'm guess I'm not clear on this. So you're not conceding it or you are conceding it. You do think the two claims? I thought in response to it, Neem, are you acknowledged that for racetrack autoproposes, you would have to concede that the two claims are similar or one was foreclosed by the other? I apologize for the confusion, Your Honor. We are not conceding that the two causes of action are the same because Mr. Duckett is alleging that there is the false publication. Please let me ask you, Mr. Duckett filed the McFadden suit himself and lost. You think he could file this suit? No, Your Honor. Well, in that case, the third question- I mean, your argument would be that this suit is different from the one he just filed, and therefore is not precluded. Now you're saying he would be precluded. And those are Duckett filed the first suit in the other institution and then filed this suit. Would he be precluded? Well, the reason that he would- Would he be- Yes or no? Yes, Your Honor, because in such a situation, Mr. Duckett would have had the opportunity to raise the false publication balance in this- Well, that was what my question was about then. You shouldn't be arguing the difference in the suits. If Duckett would be precluded, then the only issue is whether Duckett is in a relationship with McFadden, such that he's bound by the McFadden judgment. But the similarity in the complaints is similar enough that you say if Duckett filed them both, he'd be precluded on the second, wouldn't he? Yes, Your Honor. Well, I will concede that point then. But- Well, I mean, you're not a horse- I mean, you're not a horse- I mean, you're not a horse- I mean, you're not a horse- I mean, you're not a horse- Sure. Well, my apologies. The focus of our appeal, however, is the privity issue as between McFadden and Duckett, which is one element of the requirements for claim reclusion. The similarity between the causes of action is an independent issue and is not the one we are arguing primarily here on appeal. The third and final factual finding upon which the district court based its privity finding was that, quote, if McFadden one had been successful, then Duckett could have argued that issue preclusion bars the defendants from denying litigated facts. That finding is both speculative and irrelevant. It is speculative in the sense that McFadden one was, of course, not favorable for the plaintiff there. So it is difficult to know what whether issue preclusion would have applied in this case as a result. And because issue preclusion only applies to those issues that were not only litigated, but were also necessary to the judgment in the earlier suit. It is impossible to know what issues would have been deemed necessary to the judgment in the district court's hypothetical opposite outcome. Seems to me that the argument you're going to hear against you has to be that the Duckett suit is nothing more than McFadden's effort to have an end run around raised due to Coddup because he lost the earlier suit. And so he's using Duckett as a puppet. That's got to be the argument, isn't it? Yes. And we have taken note in the appellate briefs that that argument has been raised. And that is certainly one of the categories under Taylor V. Sturgeon by which non-fight claim preclusion could be found. But with regard to that category, the Taylor court stated that court should look to agency law in making that determination and that, quote, preclusion is appropriate under that category. Only if the punitive agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication. However, merely getting help from a third party does not automatically make one that third party's agent or mean that one is under the control of that third party. Inmates who are illiterate or who may be intimidated by the workings of the judicial system may need the assistance of a jailhouse lawyer in order to properly pursue their claims. We believe that Mr. McFadden's role is best seen as that of a jailhouse lawyer assisting Mr. Duckett in Mr. Duckett's pursuit of Mr. Duckett's claims to find an agency relationship based solely on that would imply that indigent inmates, I'm sorry illiterate inmates, could be barred from pursuing claims in court on their own behalf simply because their jailhouse lawyer pursued similar litigation without the illiterate. They don't have to eat the same food, don't they? So Duckett has his own injury. Yes, Duckett has injuries that are personalized to himself. He doesn't like the, I looked at the menu, it didn't look that bad, but I suppose the preparation suffers, maybe at least according to his allegations. Well, right, having not tasted it myself, I can't testify personally to that, but I would say that because part of Duckett's complaint involves false publication, even if the menu may look appetizing on paper, there is no way to know whether that is still not sufficient to protect him against cruel, unusual punishment under the Eighth Amendment. Turning to the other Taylor categories in issue here, one is whether there is a substantive legal relationship between Mr. McFadden and Mr. Duckett. The Taylor Court stated that those kinds of relationships are property-based and gave the examples as those between an assigner and an assignee or a bailer and a baili. And here we do not see any such kind of relationship or any kind of similar fiduciary relationship at all. Mirror association between two persons is not a legal relationship necessarily, let alone a substantive legal relationship. It is not enough that Mr. McFadden and Mr. Duckett have appeared previously as co-plaintiffs in earlier suits and to find as much would overly broaden this category. The third and final category that was placed into question here on appeal was the adequate representation category. And the Taylor Court stated that such adequate representation exists only if either the party in the early litigation understood him or herself to be acting in a representative capacity or the earlier court took steps to protect the interests of non-parties. Here there is no evidence that Mr. McFadden understood himself to be acting in a representative capacity and further this court has held in Fowler-V-Leah that it is plain error for a pro-seid inmate to represent other pro-seid inmates in such an action. And second, there is no evidence that the earlier court took any steps to protect the interests of non-parties like Mr. Duckett. In part because the court did not know who Mr. Duckett was, let alone whether he had interest that needed protection. A better example of a case that would fit that requirement would be, say, a class action lawsuit wherein the earlier court could create opt-in or opt-out provisions that would help to protect the non-parties' interests. So the three factual findings that I alluded to earlier from the district court, although erroneous and irrelevant to the issue of privity. Was this a 12v6 decision? Yes, the appellees asserted a claim-proclusion-based affirmative defense and the lower court granted it on 12v6 grounds. So the three factual findings upon which the district court relied led the district court to conclude that, quote, McFadden and Duckett had the same legal right and were therefore in privity. But to accept this reasoning from the district court requires also accepting the losing argument from Taylor V. Sturgell, namely that non-partie claim-proclusion can be found when there is simply a, quote, close enough relationship between the two individuals. The Taylor court sought to get rid of the gray area with respect to non-partie claim-proclusion and in light of Taylor. The district court's reasoning falls well short of a sufficient factual basis to find non-partie claim-proclusion available. And further, with respect to Taylor, this court reviews claim-proclusion-based motions to dismiss de novo. And it is not clear from neither the order nor the recommendation of the magistrate judge what test the district court was employing in making its privity determination. The Taylor court made the test very clear if the facts of a case do not fit within any of the six exclusive categories outlined in Taylor, then non-partie claim-proclusion cannot be applied. So in conclusion, ultimately, there are only two inquiries that this court needs to make. The first is whether the district court had an adequate- How did the court incorporate the prior decision? Was it judicial notice? The duckets complaint didn't allege the prior lawsuit, did it? No, your honor. How did the court get that within the decision-making context? The Appleese raised the issue in their motion to dismiss. This is- The court to take judicial notice of it is that how it happened? It was cited in their motion. Well, I know, but the 12b6 just challenges the face of the complaint to see whether it's sufficient. And they can't add it unless it's a summary judgment motion. But I suppose they can add it by judicial notice or any some aspect where it's in the public domain where the court can take it into account. Yes, your honor. And I believe the Appleese did cite to that in their brief, citing to colonial pen insurance stating that this court or that a court may take judicial notice of other proceedings that are going on before it or have been before it in the past. Okay. That's all right. Yes, your honor. If you have no further questions. Okay. Thank you, Mr. Compton. Thank you. Ms. Beas. May it please the court. My name is Sheila Beas and I represent Appleese Fuller and Ball in this matter. We were respectfully request that the court affirm the district court's grant of Appleese motion to dismiss on race due to cotter grounds. And the central inquiry here obviously is whether there was privity between appellant and inmate McFaton. And just to address your honor's question, procedurally this was a 12b6 motion to dismiss and judge child's the district court judge sought to take judicial notice of these prior proceedings. And interestingly, as we put it. After the judge go beyond that, in other words, this complaint is in segregated complaint. It's now been segregated and Mr. Duckett has filed additional allegations with respect to how the food injured him in this type of thing. How do we get a notion that somehow this is an end run around race due to cotter? That's being orchestrated by McFaton. Well I understand that that is an interesting leap, so to speak. So this was raised in our motion to dismiss the attorney who handled the district court, she's actually the honorable judge Newman now, handled McFaton one and McFaton two. And judge child's handled all of these cases that were severed. And so in the motion to dismiss, we raised the issue of race due to cotter that Mr. McFaton is in privity with Mr. Duckett in this case after these cases were severed. And so that is kind of how it was there. And we would- How did you make that allocation? You just put it in your responsive paper memorandum? Yes, it was in our motion to dismiss, that was the grounds. And what did you get for support for that? What did you rely on to make that allocation? We relied on the filings from the McFaton one lawsuit as well as- Well, McFaton one, McFaton filed on his own behalf. So there's no issue there, right? Well, actually, McFaton one, he filed it on behalf of himself and another inmate. And that McFaton one was actually severed. That was not Duckett. No, it was not Duckett. So McFaton filed a lawsuit on behalf of himself and another inmate. Yeah. So that's clear now how do you go further and establish that McFaton was somehow in privity with Duckett? Well, it's our position that McFaton is, as you're on our state, kind of the puppeteer and structuring the litigation. No, but I know that you're positioned, but where do you get that? Based on concepts of privity and what- Where the facts in this case? The facts in this case are that both of the inmates are inmates within the South Carolina Department of Corrections. Both of the inmates are challenging the nutritional quantity of the food and it is a master menu. So the fact that they are at separate institutions is immaterial to the analysis because the food is the same, whether it's at Kirkland or at Kershaw. So you have that. Both of the inmates are also raising the same right. They're challenging the nutritional quality and the context of their eighth amendment constitutional right against cruel and unusual punishment. That's it. Yes, Your Honor. So you have McFaton filing a suit on his own behalf and another inmate and another institution. He comes to this institution and he files a claim of the challenging the menu and Duckett files one and two. And both of them are in parallel in this institution and they're challenging the same menu. And so that means that they're now bound by the earlier- Well, Your Honor, a little bit differently. Duckett did not file this lawsuit separately. This is Duckett's lawsuit. It's 16 of them. Actually, Your Honor, there were 16 of them in one case and there were 90 of them in another case. So Mr. Duckett was involved with Mr. McFaton and several other inmates in multiple purported class action lawsuits challenging the nutritional quality of the food within SCDC. So it wasn't it wasn't Duckett raising the claim completely on his own. This is a sever came. It's a it's a very odd procedural posture. Were you you suggest that the facts you've just outlined are sufficient to make to make Duckett the puppet of McFaton. And this is really McFaton's lawsuit. Yes, Your Honor. And it also would direct the court to page 78 of the record. And the informal brief, Mr. Duckett, the relief that he seeks is discovery to allow the case to get facts to support McFaton's mandamus claim. So appellant himself is claim that the whole purpose of this lawsuit and the relief that he is seeking from this court is to have discovery to seek facts to support McFaton's lawsuit. So these are all prisoners experiencing the same problem. They're all eating this food and they're all complaining about the food and they're all filing lawsuits. Yes, Your Honor. The fact that one of these prisoners in some other context earlier lost one of those lawsuits. Does that mean all these prisoners are now bound? Yes, Your Honor. And because there was a set main menu that was served to all of the inmates. And another way they're challenging the same thing, but we have a different person challenging them. We have Duckett challenging them. He's the one that has to eat that food. Yes, Your Honor, but that food has already been determined, judicially determined, to be nutritionally sound. So you don't get to Mr. Duckett's individual int- Well, we're not a bind McFaton, won't it? Yes, it will. And it is. So the question is whether to bind Duckett if he makes his own effort to challenge it? Yes, Your Honor. And that is the key inquiry here. Is there privity sufficient enough between these two that it binds? And it is our position that there is. Mr. Duckett, excuse me, Mr. McFaton is not just a mere scrivener. He's not merely just a jailhouse lawyer. Yes, he does have a reputation as that, but when you look- Where are you getting all these facts? I'm sorry. Where are you getting all these facts that you're telling me? These are either in the filings with the court. They are in the various, any, the ECF, dockets with the court and the various litigation that's gone on with this. And I've cited to the very- But they're in your brief, but below open, they're not supported by anything. In other words, McFaton may be the jailhouse lawyer. I'm not sure that that's been demonstrated, but number one, but number two, what difference is that made? Well, in our opinion, Your Honor, it doesn't matter that he's a jailhouse lawyer. I was just responding to their argument. The fact is, I think that it takes a step further that he was a party plaintiff in these lawsuits. He was merely the scryviner. I think it's a different inquiry, but the fact that he has been a party plaintiff to all these lawsuits that started out as purported class actions, which I understand are not allowed, and we're certain you're not advocating that as well. The court seemed to apply a principle that on claim preclusion, if it goes both ways, they said if he had won, there would be a benefit, and therefore he's bound by it if they lost. Yes, the district court- Is that a correct statement of law? I don't believe that's a correct statement of law, but I would direct the court's attention. One of the reasons that Mr. Duckett contends that the claims are identical and they weren't previously litigated in his objections to the report recommendation are that he has not seen any changes in the food, and that's actually, in fact, what Mick Faden won mandated, because the food was found to be nutritionally sound there did not need to be any changes in the food. And this is demonstrating that Mick Fad, that, excuse me, Mr. Duckett is attempting to relitigate these issues, because this is the same issue of whether SCDC needs to change the food that is providing to the inmates. And so if a district court has already found that SCDC does not need to make that change, then similarly Mr. Duckett's complaint about this has already been litigated. He is attempting to relitigate what? What determined against him? That prior lawsuit didn't bind him. No, Your Honor, because he was not a party to that particular lawsuit, but that issue has already been binding. You want him bound now and he hasn't had his day in court? Well, Your Honor, a day in court doesn't necessarily mean a trial. He has definitely filed this lawsuit. But it also does, it means more than having your complaint dismissed, your complaint in which every allegation has to be construed in the favor of the person that files it in play. I think Your Honor, the purpose of a 12B6 motion does tend to have those effects of not having people to fully litigate to some regedumate stage, or to a trial. That's a toll purpose. What do you mean it tends to have that effect? Well, Yes, Your Honor, that is his purpose. I'm sorry, I'm a spoke. So that does not necessarily mean he's not gotten his day in court. That's a threshold. Well, we assume all the faxies alleged to be true. Yes, Your Honor. And ask the question, is it sufficient? Yes. And it may be that if there was an eighth substantive eighth amendment challenge based on what he says, he may not survive. We don't know because that's not the challenge here. The only challenge here is that he can't even make the allegations because some other prisoner lost. Yes, Your Honor. Okay. And Your Honor, I believe we have covered everything that I intended to argue if there are no other questions on the rest of my brief. Thank you. Thank you. Mr. Compton, are you having something further? Just a couple of points I'd like to make on our bottle. First of all, as Your Honor alluded to, there is simply not evidence on record to indicate that Mr. Duckett is the puppet or agent or representative of Mr. McFadden. And on that basis alone, this decision should be reversed and sent back to the district court to conduct a proper, privity analysis. I believe the Apples attempted to argue that merely because Mr. Duckett and Mr. McFadden might be considered to be similarly situated, that there would be some sort of adequate representation of Mr. Duckett by Mr. McFadden in the earlier litigation. And I'd like to quote from a case from a Southern District of Florida that kind of helps to make that distinction clear. There, the court stated that the defendants there were claiming that the plaintiffs in an earlier suit had adequately represented the plaintiffs in the present suit because they were all persons that happened to have mobility disabilities and were seeking similar relief. But in that case, the court stated that the defendant, Cites No Case Law, nor did the court on its own find any suggesting that such similar situation would be adequate to find adequate representation for the purposes of claim preclusion. Further, these were not class actions. Although Mr. McFadden in the earlier suit attempted to classify his suit as such, that argument and attempt was quickly thrown out by the district court because it is plain error for a pro-say inmate to attempt to represent in a class action on behalf of other pro-say inmates. And this is not an attempt to relitigate McFadden one by any means because Mr. Duckett had no opportunity to litigate in McFadden one. As your honor stated, Mr. Duckett has not had his day in court and therefore claim preclusion is plainly improper. And there are only- We had an unfortunate day in court. Yes. The case was dismissed. That's right. And he's not been allowed to have his full and fair opportunity to litigate. There are really only two inquiries that this court needs to make. The first is whether the district court had an adequate factual basis for its privity determination. And the second is whether the district court had an adequate legal basis for its determination. And the answer to both of those inquiries is no. And accordingly, this court should reverse the lower court's grant of Apley's motion dismiss and remand this case to the district court to allow it to subject the real facts of this case to the proper legal standard. There are no further questions. I'm Sonna. Thank you. I want to acknowledge the fact that the Professor Braga and you were appointed by the court to represent Mr. Duckett in the court. I'm going to ask you to come in this case and recognize and thank you for your help in this regard. We'll come down in Greek Council and then proceed on to the next case