Number of Pages:10
Date Created:September 9, 2011
Date Uploaded to the Library:July 30, 2013
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THE UNITED STATES COURT APPEALS United States Court Appeals FOR THE FIFTH CIRCUIT Fifth Circuit September 2011 No. 10-20743 Lyle Cayce Clerk JOSLYN JOHNSON, Plaintiff Appellant CITY HOUSTON; HOUSTON POLICE DEPARTMENT, Defendants Appellees Appeal from the United States District Court for the Southern District Texas USDC No. 4:10-cv-366 Before WIENER, CLEMENT, and ELROD, Circuit Judges. PER CURIAM:* Joslyn Johnson sued the City Houston (City), alleging that the Citys policy preventing police officers from contacting federal immigration authorities violated her state and federal constitutional rights. The district court dismissed Johnsons case, holding that previous case Johnson had filed against the City barred the current case under principles claim preclusion, res judicata. REVERSE. Pursuant 5TH CIR. 47.5, the court has determined that this opinion should not published and not precedent except under the limited circumstances set forth 5TH CIR. 47.5.4. FACTS September 21, 2006, Houston Police Officer Rodney Johnson (Rodney) stopped Juan Leonardo Quintero-Perez for speeding. Rodney searched Quintero-Perez for weapons, found and confiscated weapon, handcuffed Quintero-Perez, and placed him the back his patrol car. Sometime later, while Quintero-Perez was still custody, Quintero-Perez fatally shot Rodney the back the head. Quintero-Perez was convicted capital murder police officer and now serving life sentence. Quintero-Perez was illegal alien. was convicted felony 1999 and deported, but reentered the United States that year. Between 1999 and2006, Houston Police Department (HPD) officers arrested detained Quintero-Perez least three times. none these incidents did the HPD officers check see federal immigration authorities had outstanding arrest warrant for Quintero-Perez. the time Rodneys death, the HPD maintained policy prohibiting HPD officers from communicating with the federal Department Homeland Security and pertinent federal databases determine the criminal status detained persons and whether federal arrest warrant pending for such person. Johnson refers this policy the Sanctuary Policy. Sometime after Rodneys death 2006, the HPD changed its policy allow officers check the wanted status anyone legally detained and require officers check the wanted status anyone ticketed, arrested, jailed (Current HPD Policy). HPD officers perform these checks running the persons name through several databases, including the National Crime Information Center (NCIC) database, which may indicate whether the person take these facts from Johnsons complaint because [i]n reviewing the dismissalorder, [this court] take[s] the well-pled factual allegations the complaint true and view[s] them the light most favorable the plaintiff. Lane Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). the subject outstanding warrant wanted for another reason. The Current HPD Policy prohibits officers from contacting federal immigration officials unless the officer receives NCIC immigration hit. NCIC immigration hit indicates that the person the subject outstanding criminal warrant issued federal immigration authorities, administrative warrant removal, notice detainer for previously deported felon convicted drug trafficking, firearms trafficking, other serious crimes. The NCIC database lists only aliens convicted and deported for drug trafficking, firearms trafficking, serious violent crimes. addition the NCIC database, the federal government maintains other databases containing information persons immigration status. The Current HPD Policy does not allow HPD police officers obtain immigration information from any database other than the NCIC database. Furthermore, under the Current HPD Policy, HPD officers are forbidden from notifying federal authorities that they have encountered known illegal alien unless they arrest that person separate criminal charge (other than class misdemeanor).2 September 22, 2008, Johnson, both her individual capacity and the executrix for the estate Rodney, filed suit against the City Houston Texas state court (Johnson I). her original complaint, Johnson alleged negligence and gross negligence claims against the City. Johnson later amended her complaint add U.S.C. 1983 claim, alleging that the Citys Sanctuary Policy violated Rodneys federal constitutional rights. The City removed Johnsons case federal district court. Once federal court, Johnson filed her fourth amended complaint, which alleged that the Citys maintenance and enforcement the Sanctuary Policy deprived Rodney his life and liberty guaranteed the Fourteenth Amendment the U.S. Constitution. She argued unclear from Johnsons pleading whether this restriction was place the timeof Rodneys death. that, but for the Sanctuary Policy, the police officers that had previously encountered Quintero-Perez would have accessed federal databases, discovered the existence federal arrest warrant, arrested Quintero-Perez, and turned him over federal immigration officials. The fourth amended complaint also re-alleged Johnsons negligence and gross negligence claims. The City filed motion dismiss Johnson several grounds, including Johnsons lack standing bring the 1983 suit her own behalf. September 2009, the district court dismissed Johnson The court first held that the Citys motion dismiss Johnsons 1983 claims brought her individual capacity was moot as Plaintiff makes such claims. The court then dismissed Johnsons 1983 claims brought her capacity executrix Rodneys estate, holding that she had failed allege substantive due process claim because the municipalitys policy did not create the danger Rodneys life. finally dismissed Johnsons gross negligence claim barred sovereign immunity and remanded her remaining state law negligence claim Texas state court. September 21, 2009, Johnson filed this lawsuit against the City, the HPD, and former Chief Police Harold Hurtt, his official capacity. Relevant this appeal, Johnson raised U.S.C. 1983 claim alleging that the Current HPD Policy violated (1) her right freedom expression under the First Amendment and (2) her rights under U.S.C. 1373 and 1644 prohibitingher from contacting federal immigration authorities request provide U.S.C. 1373(a) provides: Notwithstanding any other provision Federal, State, local law, Federal, State, local government entity official may not prohibit, any way restrict, any government entity official from sending to, receiving from, the Immigration and Naturalization Service information regarding the citizenship immigration status, lawful unlawful, any individual. Section 1664 contains similar provision protecting local government entities rightsto send and receive information federal immigration authorities. U.S.C. 1644. information about the immigration status persons she encounters police officer. She also raised claim under Article Section the Texas Constitution alleging that the Current HPD Policy violated her right freedom expression. The City subsequently filed Rule 12(b)(6) motion dismiss several grounds. September 30, 2010, the district court issued order granting the Citys motion. Relevant this appeal, the court held that Johnsons 1983 andTexas constitutional claims were barred Johnson under principles claim preclusion (or res judicata). doing so, the court held that (1) the parties Johnson and this suit were identical because Johnson controlled the prior litigation and was privity with party it; (2) court competent jurisdiction had dismissed Johnson (3) the other courts determination Johnson was final and the merits; and (4) Johnson raised the same cause action both Johnson and the current suit. Johnson timely appealed. STANDARD REVIEW review district courts order granting Rule 12(b)(6) motion dismiss novo. Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). accept all well-pleaded facts true, viewing them the light most favorable the plaintiff. Id. DISCUSSION Federal law determines the res judicata effect prior federal court judgment. Meza Gen. Battery Corp., 908 F.2d 1262, 1265 (5th Cir. 1990). This court has held that: The district court also (1) dismissed Johnsons claims against the HPD because isnot legal entity, (2) dismissed Johnsons writ mandamus action against Hurtt because heis not federal officer, and (3) dismissed Johnsons other claims against Hurtt his officialcapacity because the City was also named defendant for those claims. Johnson does notappeal these rulings. Claim preclusion bars the litigation claims that either have beenlitigated should have been raised earlier suit. The test forclaim preclusion has four elements: (1) the parties the subsequentaction are identical to, privity with, the parties the prioraction; (2) the judgment the prior case was rendered court ofcompetent jurisdiction; (3) there has been final judgment themerits; and (4) the same claim cause action involved bothsuits. party can only win the suit convincing the court thatthe prior judgment was error, the second suit barred. When allfour elements are present, claim preclusion prohibits litigant fromasserting any claim defense the later action that was couldhave been raised support opposition the cause actionasserted the prior action. Duffie United States, 600 F.3d 362, 372 (5th Cir. 2010) (internal quotation marks and citations omitted). Johnson argues that the district court erred concluding that res judicata bars the current lawsuit. For the reasons described below, hold that the district court erred holding that the first and fourth elements the claim preclusion test were satisfied.5 Identity the parties Johnson very briefly argues that the district court erred applying claim preclusion because the parties are not technically identical. the district court correctly noted, [t]o satisfy the identity element, strict identity parties not necessary. non-party defendant can assert res judicata long privity with the named defendant. Russell SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th Cir. 1992). have also previously held that, for the purposes claim preclusion, privity exists where the non-party controlled the prior litigation. Meza, 908 F.2d 1266. The district court concluded Johnson controlled Johnson and was privity with party itnamely, Johnson her capacity executor Rodneys estate. Johnson concedes that the second and third elements the claim preclusion test weresatisfied. However, the control principle cannot apply person who, party, controls litigation one capacity, and then involved subsequent litigation another capacity. CHARLES ALAN WRIGHT, ARTHUR MILLER EDWARD COOPER, 18A FEDERAL PRACTICE PROCEDURE 4451, 384-85 (2d ed. 2002). This because, general rule, the identity requirement for claim preclusion not fulfilled when person participates two different suits different capacities. See Howell Hydrocarbons, Inc. Adams, 897 F.2d 183, 188 (5th Cir. 1990); Clark Amoco Prod. Co., 794 F.2d 967, 973 (5th Cir. 1986)(Res judicata does not apply situation which party appears one action individual capacity and subsequent action representative capacity.);6 RESTATEMENT (SECOND) JUDGMENTS 36(2) (1982) (A party appearing action one capacity, individual representative, not thereby bound entitled the benefits the rules res judicata subsequent action which appears another capacity.). Johnson did not bring her 1983 claims Johnson her individual capacity. Although she brought her state negligence claims individually, she brought the Fourteenth Amendment claims executrix Rodneys estate. contrast, she brings her current claims her individual capacity. Under this The district court seemed rely this courts prior statement that [i]f partys interests are represented prior action, the identity parties element satisfied [and] [t]his satisfaction not defeated change the capacity which individual sues. United States rel. Laird Lockheed Martin Engg Sci. Servs. Co., 336 F.3d 346, 357 (5th Cir. 2003), abrogated other grounds Rockwell Intl Corp. United States, 549 U.S. 457 (2007). This statement conflicts with our prior holding, but also dictum Laird addressed the preclusive effect plaintiffs state wrongful death claim his federal qui tam claim. Id. 349-50. The plaintiff Laird did not change the capacity which was sued, this court only addressed whether was party interest the qui tam claim. Id. 358. Further, Laird was not banc decision and therefore could not overrule this courts prior precedent. United States Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007) (Absent anen banc intervening Supreme Court decision, one panel this court may not overrule aprior panel's decision.). circuits precedent, the identity-of-the-parties element was not met. See Clark, 794 F.2d 973. Identity the causes action Johnson also asserts that Johnson and this suit not involve the same cause action because the facts this case are unrelated Johnson the two cases not form convenient trial unit, and trying the cases together would not have met the expectations the parties. The City argues that this case raises the same cause action Johnson because both actions revolve around the circumstances surrounding [Rodneys] death and the HPD policies which Johnson claims prohibit officers from determining persons immigration status. determine whether two lawsuits involve the same claim cause action, have adopted the transactional test the Restatement (Second) Judgments. Petro-Hunt, L.L.C. United States, 365 F.3d 385, 395 (5th Cir. 2004) (citing Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999)). Under the Restatements test: What factual grouping constitutes transaction, and what groupings constitute series, are determined pragmatically,giving weight such considerations whether the facts arerelated time, space, origin, motivation, whether they form aconvenient trial unit, and whether their treatment unit conforms the parties expectations business understanding usage. Restatement (Second) Judgments, 24(2). The critical issue whether the two actions under consideration are based the same nucleus operative facts. Southmark, 163 F.3d 934 (emphasis original) (internal quotation marks omitted). In this inquiry, look the factual predicate the claims asserted, not the legal theories upon which the plaintiff relies. Eubanks FDIC, 977 F.2d 166, 171 (5th Cir. 1992). Applying the transactional test, the district court concluded that Johnson and the current suit raised the same cause action. stated that the factual predicate both suits relates [Johnsons] complaints what she deems flawed policies and/or practices HPD that preclude her and other officers from inquiring into detained persons immigration status. The court noted that both suits, Johnson (1) described the circumstances Rodneys death; (2) alleged that the HPD maintained policy preventing officers from inquiring into detained persons immigration status; and (3) alleged that HPD policy led Rodneys death. also held that Johnsons two claims made convenient trial unit and that she could have easily brought her claims alleged the current action that suit well. disagree. Johnson and this lawsuit not arise from the same transaction and are not based the same nucleus operative facts. Although Johnson alleges her complaint for this case that the policies the Current HPD Policy led Rodneys death, Rodneys death not factual predicate Johnsons current claim. Johnsons First Amendment claim, 1373(a) and 1664 claims, and her claim under the Texas Constitution are wholly unrelated Rodneys death. Therefore, Rodneys death cannot part this cases nucleus operative facts. See Southmark, 163 F.3d 934. Further, although both lawsuits challenge the propriety HPD policies, each challenges different policy. Johnsons claim Johnson alleged that the HPD maintained its Sanctuary Policy with indifference officer safety and that Rodney lost his life because the Sanctuary Policy. Her current claim, however, alleges that the Current HPD Policy, enacted after Rodneys death, violates her free speech rights and various federal statutes. The Current HPD Policy differs from the Sanctuary Policy that allows HPD officers check the wanted status detained individuals and contact federal immigration authorities there NCIC immigration hit. The facts underlying the current claim are not related time, space, [or] origin the facts Johnson because the City indisputably did not adopt the Current HPD Policy until after Rodneys death. Finally, although the two actions make convenient trial unit because would have been feasible for Johnson have brought the current claim along with Johnson the City would not have had reasonable expectation that plaintiff bringing 1983 lawsuit based one municipal policy would include facial challenges another, later-enacted, policy the same suit. Because the current lawsuit based different nucleus operative facts from Johnson does not raise the same cause action for claim preclusion purposes. After our novo review, conclude that the current case and Johnson not meet the first and fourth elements this circuits test for claim preclusion. was error dismiss Johnsons current lawsuit barred res judicata. CONCLUSION For the foregoing reasons, the district courts order dismissal REVERSED and the case REMANDED for further proceedings.