IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10466 Summary Calendar

ROY LEE SMITH,

Plaintiff-Appellant,

versus

VANESSA R. SCHROCK,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:00-CV-1346-D -------------------- November 27, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Roy Lee Smith appeals the district court’s dismissal of his

complaint as barred by res judicata. We review the

grant of summary judgment de novo. Traveler’s Ins. Co. v. St. Jude

Hosp.,

(5th Cir. 1994).

Smith contends that his first

suit emanated

from allegations of an assault, and the instant

action arose from allegations of a threat. He asserts that the

claims based on the threat charge had not accrued

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-10466 -2-

when he filed the first

complaint because the

criminal proceedings on the threat charge had not terminated. He

argues that he obtained an unfavorable result in the first

lawsuit because the district court concluded that

Schrock was entitled to qualified immunity; he maintains that

qualified immunity is not at issue in this case.

A prior judgment bars an action on the basis of res judicata

if (1) the parties are identical in both suits; (2) the prior

judgment was rendered by a court of competent jurisdiction; (3) the

prior judgment was a final judgment on the merits; and (4) the

cases involve the same cause of action. Traveler’s Ins. Co.,

. Smith concedes that the first three elements are

present.

We use the transactional test to determine whether the same

cause of action is involved. Traveler’s Ins. Co.,

.

The critical issue is whether the plaintiff bases the two actions

on the same nucleus of operative fact.

Res judicata bars all

claims that were or that could have been advanced in support of the

cause of the action, not merely the claims that were asserted.

In his affidavit in support of his response to Schrock’s

motion for summary judgment in the instant case, Smith stated that

during the pendency of his divorce from Schrock, Schrock invented

false claims of abuse and threats which initiated arrests and that

Schrock acted to gain an advantage in the divorce. Smith admitted

that both

complaints stemmed from his ex-wife’s No. 02-10466 -3-

allegations that were levied with the intent to have Smith arrested

and suffer a disadvantage in the divorce. The transaction at the

heart of Smith’s

complaints was the divorce, the

allegations that led to the

were made during the

pendency of the divorce, and he has not shown that the claims

raised in the present suit could not have been effectively

litigated with the prior suit. See In re: Baudoin,

,

743 (5th Cir. 1993). Thus, Smith’s

lawsuits

involved a common nucleus of operative fact. See Traveler’s Ins.

Co.,

.

The district court did not err in dismissing the instant

action as barred by the doctrine of res judicata. The judgment of

the district court is AFFIRMED.