                       NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                 Fed. R. App. P. 32.1




                United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                               Submitted June 22, 2007*
                              Decided September 14, 2007

                                         Before

                      Hon. JOHN L. COFFEY, Circuit Judge

                      Hon. KENNETH F. RIPPLE, Circuit Judge

                      Hon. MICHAEL S. KANNE, Circuit Judge

No. 06-1646

CYNTHIA EASLEY, Individually                      Appeal from the United States
and as Administrator of the Estate of             District Court for the Eastern District
CHRISTOPHER B. EASLEY,                            of Wisconsin
       Plaintiff-Appellant,
                                                  No. 02 C 1065
           v.

SERGEANT. MICHAEL B. REUSS,                       Thomas J. Curran,
     Defendant-Appellee.                          Judge

                                       ORDER

      In 2004 we affirmed the denial of Cynthia Easley’s motion to vacate the grant
of summary judgment in a suit she brought under 42 U.S.C. § 1983 against several
Wisconsin police officers and municipalities after one of the officers shot and killed
her son Christopher. See Easley v. Kirmsee, 382 F.3d 693 (7th Cir. 2004). In the

       *
        This successive appeal has been submitted to the panel that decided the original
appeal. See Operating Procedure 6(b). After examining the briefs and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and
the record. See Fed. R.App. P. 34(a)(2).
No. 06-1646                                                                    Page 2

present suit, also brought under § 1983, Easley has sued Sergeant Michael Reuss,
the highest-ranking officer at the scene. The district court granted summary
judgment for Reuss. Because both claim and issue preclusion bar Easley’s present
suit, we affirm.

       Reuss was not in the immediate vicinity when Christopher was shot and
killed in October 2006. Rather, Reuss was called in as backup when an officer, on
patrol in a residential neighborhood, spotted Christopher bleeding and wielding a
knife and determined that he matched the description in an area-wide alert of an
armed, emotionally-disturbed, and intoxicated individual that was roaming in the
area that night. After Christopher refused to heed the officer’s commands to put
down the knife, Reuss asked the officer whether he had a non-lethal weapon in his
possession, but he did not. Two more officers then arrived, and the four spread out
to secure the area before pursuing further action against Christopher. As they were
doing so, several other officers from different townships also arrived on the scene.
Suddenly, Christopher darted in a different direction. While Reuss was therefore
repositioning his squad car, he heard over his radio that Christopher had been shot
by one of the officers from a different township.

       Easley brought her first suit, (“Easley I”), in September 2001 against the
shooting officer, alleging he used excessive force, against the officers who were in
the immediate vicinity, alleging they failed to intervene, and against the townships
they represented—including the City of Lake Geneva which is Reuss’
employer—alleging that they failed to properly train the officers. Reuss, though,
was not a party to this suit. The district court granted the defendants’ motion for
summary judgment after Easley failed to respond. The court found that the use of
force was reasonable and that the officers were adequately trained. See Easley v.
Kirmsee, No. 01-C-938 (E.D. Wis. Nov. 26, 2006). Easley did not appeal that ruling,
but instead filed a Rule 60(b) motion to reconsider. The court denied it, and we
upheld that denial on appeal.

        In the meantime, in October 2002, Easley initiated the instant lawsuit
against Reuss in both his official and individual capacities. Easley alleged that
Reuss—as the highest ranking officer at the scene—violated Christopher’s Fourth
and Fourteenth Amendment rights by failing to control his fellow officers and order
them to procure less than lethal force before attempting to apprehend Christopher.
The district court granted Reuss’s motion for summary judgment, finding that the
doctrine of res judicata (claim preclusion) barred the claim against him in his
official capacity, and that Reuss was entitled to qualified immunity on the claim
against him in his individual capacity. Reuss appealed.

       We first turn to the district court’s application of claim preclusion (res
judicata) to Easley’s claims against Reuss in his official capacity. Claim preclusion
No. 06-1646                                                                      Page 3

bars not only issues actually decided in a prior suit, but also those that could have
been raised. Highway J Citizens Group v. United States Dep’t of Transp., 456 F.3d
734, 741 (7th Cir. 2006). It requires (1) a prior final judgment on the merits; (2) the
same claim; and (3) the same parties or their privies. Tartt v. Nw. Cmty. Hosp., 453
F.3d 817, 822 (7th Cir. 2006). Easley argues that none of the three requirements
for claim preclusion are satisfied here.

        She first contends that Easley I was not decided on its merits, but rather on
“procedural irregularities.” This characterization is not supported by the district
court’s decision in that case. It is true that Easley failed to respond to the
defendants’ motion for summary judgment, but the district court emphasized that
“summary judgment cannot be granted merely because the opponent of the motion
fails to respond.” The district court thus independently reviewed the defendants’
proposed facts and arguments and concluded that “the force used against
Christopher was reasonable.” In any event, even a dismissal for failure to prosecute
or otherwise comply with the rules of civil procedure (other than dismissal for lack
of jurisdiction) is an adjudication on the merits. See Fed. R. Civ. P. 41(b).

       Easley then insists that she is not advancing the same claims in her new
lawsuit because the legal theories she is asserting are different. But Easley
misapprehends the concept of a claim: for res judicata purposes “a claim is not an
argument or a ground but the events claimed to give rise to a right to a legal
remedy.” Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 857 (7th
Cir. 2001). It is clear from our review of Easley’s complaints that they both arise
out of the same set of facts. Cloaking the facts in new legal theories does not
establish a new claim. See Cannon v. Loyola Univ. of Chicago, 784 F.2d 777, 780
(7th Cir. 1986).

       Easley finally argues that claim preclusion does not apply because Reuss was
not a party to her previous suit. But “res judicata bars subsequent suits against
those who were not party to a prior suit if their interests are closely related to those
who were.” Tartt v. Northwestern Comm. Hosp., 453 F.3d 817, 822 (7th Cir. 2006);
Garcia v. Vill. of Mount Prospect, 360 F.3d 630, 636 (7th Cir. 2004). And we have
explained that such privity exists between government entities and their employees
when such employees are sued in their official capacities. See Gray v. Locke, 885
F.2d 399, 405 (7th Cir. 2005). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (noting
that claims against officers in their official capacity “represent another way of
pleading an action against an entity of which an officer is an agent.”) Thus, the
district court correctly applied the doctrine of res judicata to bar Easley’s claims
against Reuss in his official capacity.
        We turn now to the claims against Reuss in his individual capacity, which
Reuss argues are barred under the doctrine of collateral estoppel (issue preclusion).
Reuss raised this argument in his motion for summary judgment, but the district
No. 06-1646                                                                      Page 4

court did not address it in its order. An appellee, though, may urge an alternate
ground for affirmance that he raised below and that is supported by the record so
long as it does not enlarge the relief previously given the appellee. See Morley Co.
v. Maryland Cas. Co., 300 U.S. 185, 191 (1937); Ill. Sch. Dist. Agency v. Pacific Ins.
Co., 471 F.3d 714, 722 (7th Cir. 2006). It follows that we may consider Reuss’s
argument because the district judge decided the merits of Easley’s claims in Reuss’s
favor. See, e.g., Williams v. Seniff, 342 F.3d 774, 793 (7th Cir. 2003)

       The doctrine of collateral estoppel provides that once a court has decided an
issue of fact or law necessary to its judgment, that decision is conclusive in a
subsequent suit involving a party to the prior litigation. Harrell v. U.S. Postal
Service, 445 F.3d 913, 921 (7th Cir. 2006). There are four specific elements to issue
preclusion: (1) the issue is the same as one involved in the prior action; (2) the issue
was actually litigated; (3) the determination of the issue was necessary to the prior
judgment; and (4) the party against whom preclusion is invoked was fully
represented in the prior action. Wash. Group Int’l, Inc. v. Bell, Boyd, & Lloyd LLC,
383 F.3d 633, 636 (7th Cir. 2004). And it makes no difference that Reuss is being
sued in his individual capacity because it is well settled that collateral estoppel may
be used defensively by a party who was not a party to the previous suit against a
plaintiff like Easley who has had one full and fair opportunity to litigate a given
issue. See Blonder-Tongue Laboratories, Inc. v. Univ. of Ill. Foundation, 402 U.S.
313, 325 (1971); Newman v. State of Ind., 129 F.3d 937, 942 (7th Cir. 1997).

       Easley only generally challenges the first prong of the test, again asserting
that the issues differ because she has advanced new legal theories. But to
establish a claim for failure to intervene, a plaintiff must show that the officer had
reason to know "that any constitutional violation has been committed by another
law enforcement official; and the officer had a realistic opportunity to intervene to
prevent the harm from occurring." Windle v. City of Marion, 321 F.3d 658, 663 (7th
Cir. 2003). In other words, Easley’s claim can succeed only if Christopher’s shooting
by Reuss’s subordinates violated constitutional standards, which according to the
decision in Easley I, it did not. Under the doctrine of collateral estoppel, Easley
may not now relitigate whether the underlying shooting was justified.

      Accordingly, the judgment of the district court is AFFIRMED.
