BEAUMONT – Area blogger Philip Klein recently had an appeal shot down by the U.S. Court of Appeals for the Fifth Circuit in his litigation brought against former district judge Layne Walker.

Klein had appealed a district court's grant of summary judgment, the striking of allegations made in his second amended complaint, and a decision to deny him leave to amend.

On Sept. 5, the Fifth Circuit found no error and affirmed the lower court’s rulings, court records show.

The litigation began when Klein filed a state court action against Walker, a sitting judge at the time, for allegedly retaliating against him for posting disparaging blog content. Initially, Klein sought only declaratory and injunctive relief, the opinion states.

In response, Walker filed a motion to dismiss on the basis of judicial and sovereign immunity. He then retired from the bench and filed a Plea to the Jurisdiction and a motion for summary judgment subject to a plea to the jurisdiction for absolute and qualified immunity. The filing restated his previous defenses and argued that Klein's claims for declaratory and injunctive relief were moot because he was no longer a sitting judge.

Shortly after, Klein nonsuited his claims for declaratory and injunctive relief, pursuing only a free speech retaliation claim. Eleven days later, the state court granted Walker's motion to dismiss and his motion for summary judgment. Once the order issued, Klein took no further action in state court.

Approximately two weeks later, Klein filed a complaint in federal court, asserting a carbon copy of his section 1983 free speech retaliation claim. In response, Walker filed a motion to dismiss based on three defenses: res judicata, judicial immunity, and failure to state a claim, the opinion states.

The magistrate judge recommended that Walker's motion be granted for failure to state a claim, but with leave to amend. The district court adopted the part of the recommendation allowing Klein to amend his complaint. Klein did so, and

Walker responded with an amended motion to dismiss raising the three grounds he had previously asserted.

The magistrate judge again recommended that Klein's claims be dismissed for failure to state a claim. But he also proposed that Klein be given one final opportunity to correct the pleading deficiencies. That amended complaint would be limited to Klein alleging additional details about the claims that had been previously dismissed; he could not add new claims.

The report further recommended that Walker pursue his res judicata defense through a motion for summary judgment because of uncertainty about whether the state court issued a final judgment on the merits.

After receiving four extensions, Klein filed his second amended complaint. In response, Walker filed three separate motions: a motion for summary judgment on the merits, a motion to strike and dismiss Klein's second amended complaint, and a motion for summary judgment based on res judicata, the opinion states.

In his res judicata motion for summary judgment, Walker submitted a certified copy of the complete state court record, which indicated that Klein took no further action following the state court's grant of summary judgment.

The district court held that res judicata barred the claims asserted in

Walker's earlier pleadings and to the extent Walker was adding new claims, those should be struck as exceeding the limited authority to amend the magistrate judge had granted.

“To the extent Klein's conspiracy allegation against Walker constitutes a claim arising out of different conduct, Klein failed to adequately brief how the decision to limit his second amendment to claims previously asserted was an abuse of discretion,” the opinion states.

“Failure to adequately brief an issue forfeits it.”

Case No. 17-40052

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