Petros v. Sanitation Dept.

993 F.2d 1538 NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Mike J. PETROS, Plaintiff-Appellant, v. SANITATION DEPARTMENT; City of Wheeling; Sanitation Department Supervisor; Old Engineer; New Engineer; Old City Manager; City Clerk; Civil Service MEA Secretary, Unnamed; ALL INVOLVED, Defendants-Appellees. No. 93-1304. United States Court of Appeals, Fourth Circuit. Submitted: May 3, 1993 Decided: May 25, 1993 Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. Frederick P. Stamp, Jr., District Judge. (CA-92-179-W-S) Mike J. Petros, Appellant Pro Se. Kevin Alston Stryker, City Solicitor's Office, Wheeling, West Virginia; Paul Thomas Boos, Phillips, Gardill, Kaiser, Boos & Hartley, Wheeling, West Virginia, for Appellees. N.D.W.Va. AFFIRMED. Before RUSSELL and HALL, Circuit Judges, and SPROUSE, Senior Circuit Judge. PER CURIAM: OPINION [1] Mike J. Petros appeals from a district court order dismissing his action alleging employment discrimination. Because we find no reversible error below, we affirm. [2] Petros filed the current action, making conclusory and unsupported allegations of discrimination by his employer and alleging a resultant violation of his civil rights. Petros's claim was previously dismissed by a federal court for failure to state a claim. Petros v. L.P. Adams, No. 91-22-W(S) (N.D.W. Va. May 18, 1992). Although he named slightly different or additional parties in the current case, his claim arose out of the same set of operative facts, and it had already been denied with prejudice. Thus, his claim was precluded. The district court did not err in denying relief.* Nevada v. United States, 463 U.S. 110, 130-31 (1983). [3] Because the district court was correct in denying Petros's claim, we affirm. We deny Petro's motion for the appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. AFFIRMED Footnotes [-s] * The district court's denial, although titled a dismissal, was actually summary judgment, as matters outside the pleadings were submitted by the Defendants and not excluded by the court. Fed. R. Civ. P. 12(b). Further, the district court should have issued notice pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975); however, its failure to do so was harmless, as Petros responded to the Defendants' motion to dismiss