Case 1:16-cv-00540-AJT-MSN Document 37 Filed 07/28/17 Page 14 of 20 PageID# 3270 to a dismissal with prejudice after confirming that he “didn’t want to waste the time of the Court, of the school board, or anybody else to be here,” that he had “very productive meetings” with the new principal at his children’s school, and that “it seems like there is no relief that I can get now that I’m allowed to go every day to the school, which was the point of my petition.” Id., Ex. 2 (“Petitioner’s Motion for Nonsuit Hearing Transcript” or “Tr.”) 5:9-10,11-14, 18-21. He never mentioned his pending federal action, and there is no merit to Davidson’s contention that he informed the state court that he was dismissing his Petition in order to pursue his federal action. 6 The fact that Davison’s state court action arose out of an administrative appeal of LCSB’s decision does not negate the res judicata effect it would otherwise have. As this Court concluded in Martin-Bangura v. Commonwealth Dep’t of Mental Health, 640 F. Supp. 2d 729, 733-34 (E.D. Va. 2009) (Ellis, J.), which arose out of analogous facts, 7 under Supreme Court of Virginia Rule 1:6(a), res judicata preclusion applies to bar federal claims that “could have and should have brought . . . in the administrative hearing.” 8 Id. at 740. Virginia courts have also found 6 Plaintiff argues that “it is clear that the state court . . . was granting the motion for nonsuit because the appeal was moot.” Plaintiff’s Supplemental Memorandum of Law in Opposition to Defendants’ Motion [Doc. No. 36] (“Pl.’s Supp. Mem. Opp’n”) 8. However, the state court did not grant Davidson’s motion for nonsuit; in fact, the Court explicitly told Davidson that it did not have the authority to enter a non-suit, Tr. 8: 6-7, and that the only option was “outright dismissal or withdrawing your appeal.” Tr. 8:11-12. Davison explained that “I have written up three different orders: one with nonsuit, one with dismiss with prejudice, one with dismiss without prejudice. I would like to get it dismissed today in some way.” Tr. 8: 16-19. The Court further explained, “I can’t dismiss without prejudice,” Tr. 8: 21-22, to which Davison responded, “Whatever the best way to get it off the docket is,” Tr. 9: 3-4. Davison voluntarily opted for outright dismissal, and he gave every indication that he intended that resolution to put an end to his claims and as a final adjudication on the merits, whether or not his appeal is characterized as “moot.” 7 In Martin-Bangura, a former employee challenged his termination by filing a state grievance through the Virginia Department of Employment Dispute Resolution alleging wrongful discharge. The state hearing officer upheld the termination, and the plaintiff appealed that decision to the Circuit Court of Fairfax County. Before the state court entered judgment, the plaintiff filed a federal EEOC complaint under Title VII of the Civil Right act alleging discrimination. Martin-Bangura, 640 F. Supp. 2d at 732-34. 8 Plaintiff now argues that “no claim under 42 U.S.C. § 1983 was made in the state court” and that “Davison did not submit his federal law claims to the state court for adjudication.” Pl.’s Supp. Mem. Opp’n 8. First, Davidson’s Petition, in fact, raised his First and Fourteenth Amendment claims in the state court action, which were dismissed with prejudice, although not within the context of a Section 1983 claim. Second, unlike collateral estoppel, res judicata bars both claims that have actually been litigated and those that could have been litigated. It is well established that claims arising under 42 U.S.C. § 1983 can be brought in a state court action. See Haywood v. Drown, 556 U.S. 729, 731 (2009); Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 506-07 (1982); Maine v. Thiboutot, 448 U.S. 1, 3 n.1 (1980). 14