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Judicial Watch • Joslyn M. Johnson V. City of Houston; Police Department (10-20743)

Joslyn M. Johnson V. City of Houston; Police Department (10-20743)

Joslyn M. Johnson V. City of Houston; Police Department (10-20743)

Page 1: Joslyn M. Johnson V. City of Houston; Police Department (10-20743)


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Date Created:December 1, 2015

Date Uploaded to the Library:December 01, 2015

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Case: 10-20743
Document: 00511598591
FOR THE FIFTH CIRCUIT un;tedStatesCourtofAppeals
Fifth Circuit
September 2011
No. 10-20743
Lyle Cayce
Plaintiff Appellant
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.
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.
*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.
Case: 10-207
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
FACTS September 21, 2006, Houston Police Officer Rodney Johnson (Rodney)
stopped Juan Leonardo Quintero-Perez for speeding. Rodney searched QuinteroPerez for weapons, found and confiscated weapon, handcuffed Quintero-Perez,
and placed him the back his patrol car. Sometime later, while QuinteroPerez 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 and
2006, 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 dismissal
order, [this court] take[s] the well-pied 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).
Case: 10-207
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743 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). 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 f). her original complaint, Johnson alleged
negligence and gross negligence claims against the City. Johnson later amended
her complaint add U.S.C. 1983 claim, allegingthat 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 time Rodneys death.
Case: 10-207
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
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 realleged 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 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 16443 prohibiting
her 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 rights send and receive information federal immigration authorities. U.S.C. 1644.
Case: 10-207
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
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 and
Texas 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.
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
not legal entity, (2) dismissed Johnsons writ mandamus action against Hurtt because not federal officer, and (3) dismissed Johnsons other claims against Hurtt his official
capacity because the City was also named defendant for those claims. Johnson does not
appeal these rulings.
Case: 10-20743
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
Claim preclusion bars the litigation claims that either have been
litigated should have been raised earlier suit. The test for
claim preclusion has four elements: (1) the parties the subsequent
action are identical to, privity with, the parties the prior
action; (2) the judgment the prior case was rendered court
competent jurisdiction; (3) there has been final judgment the
merits; and (4) the same claim cause action involved both
suits. party can only win the suit convincing the court that
the prior judgment was error, the second suit barred. When all
four elements are present, claim preclusion prohibits litigant from
asserting any claim defense the later action that was could
have been raised support opposition the cause action
asserted 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.
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 it-namely, Johnson her capacity executor Rodneys estate.
Johnson concedes that the second and third elements the claim preclusion test were
Case: 10-207
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
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.);
RESTATEMENT (SECOND) JUDGMENTS 36(2) (1982) 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] ]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 bane decision and therefore could not overrule this courts prior
precedent. United States Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007) (Absent bane intervening Supreme Court decision, one panel this court may not overrule
prior panels decision.).
Case: 10-20743
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
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 are
related time, space, origin, motivation, whether they form
convenient trial unit, and whether their treatment unit
conforms the parties expectations business understanding
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). 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).
Case: 10-20743
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
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
Case: 10-207
Document: 00511598591
Date Filed: 09/09/2011
No. 10-20743
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
For the foregoing reasons, the district courts order dismissal
REVERSED and the case REMANDED for further proceedings.