                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                    July 18, 2006
                           FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk
                           _____________________

                               No. 05-51113
                           ____________________

                               KENNETH LEE,

                                           Plaintiff-Appellant,

                                      v.

                     CITY OF SAN ANTONIO, et al.,

                                           Defendants-Appellees.

                            __________________

 On Appeal from the United States District Court for the Western
                  District of Texas, San Antonio
                           5:04-CV-1184
                        __________________

Before DAVIS, BARKSDALE, and DEMOSS, Circuit Judges.

PER CURIAM:1

      Appellant Kenneth Lee (“Lee”) appeals the dismissal of his

discrimination    claims    against    the   City   of   San    Antonio     (the

“City”) on res judicata grounds. Because we find no error in the

district court’s judgment, and for the reasons stated below, we

affirm.

  1
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
  this opinion should not be published and is not precedent
  except under the limited circumstances set forth in 5TH CIR.
  R. 47.5.4.


                                      1
     Lee filed his initial complaint (“Lee I”) against the City

in federal district court, asserting violations of Title VII as

well as sections 1981, 1983, and 1985 under an equal protection

theory.   Lee   asserted      that   the   City    and   certain   individuals

discriminated against him on the basis of race by failing to

properly classify and pay him as a superintendent and later as an

on-site manager of the Environmental Service Department’s Waste

Transfer Station.

     In   the   course   of    discovery,    the    City   disclosed   a   site

operating plan for the Waste Transfer Station indicating that the

City was required to have a waste disposal superintendent manage

the facility. After discovering the site plan, and while his

initial suit remained pending in federal court, Lee initiated a

second suit (“Lee II”) in Texas state court against an identical

set of defendants and based on identical facts. In this second

suit, Lee asserted, inter alia, equal protection claims brought

under section 1983, state constitutional claims based on equal

protection and due process, and quantum meruit claims. Lee did

not seek to amend his complaint in Lee I to include any of the

claims asserted in Lee II.           The City removed the second suit to

federal court, answered Lee’s allegations, and asserted several

defenses, including res judicata.



                                       2
     The district court eventually granted summary judgment to

both the individual defendants and the City in Lee I.                   Lee

appealed the summary judgment as to his claims against the City,

and a panel of this court affirmed that judgment. See Dotson v.

City of San Antonio, No. 05-50652, 2006 WL 1097845 (5th Cir.

April 25, 2006)(unpublished). Based on the summary judgment in

Lee I, the City and other defendants filed a motion for summary

judgment in Lee II based on res judicata. The district court

granted that motion, and this appeal followed.

     We review the grant of summary judgment de novo, applying

the same standard of a district court. Pratt v. City of Houston,

247 F.3d 601, 605-06 (5th Cir. 2001). “Summary judgment is proper

when the evidence, viewed in the light most favorable to the non-

movant, reflects no genuine issues of material fact.” Id. at 606

(internal quotation omitted). Consistent with Federal Rule of

Civil   Procedure   56(c),   to   prevail   on   a   motion   for   summary

judgment the movant must be entitled to judgment as a matter of

law. In particular, the res judicata effect of a prior judgment

is a question of law that we review de novo. Davis v. Dallas Area

Rapid Transit, 383 F.3d 309, 313 (5th Cir. 2004).

     Res   judicata   “insures    the   finality     of   judgments”    and

precludes parties from relitigating issues that either were or



                                    3
could have been raised in that action. Proctor & Gamble Co. v.

Amway Corp., 376 F.3d 496, 499 (5th Cir. 2004). Res judicata

applies where    (1)    the   parties       to   the    respective    actions     are

identical; (2) the prior judgment was rendered by a court of

competent jurisdiction; (3) the prior action resulted in a final

judgment on the merits; and (4) the same cause of action is

involved in both cases. See Russell v. SunAmerica Securities,

Inc., 962 F.2d 1169, 1172 (5th Cir. 1992).

      Lee argues first that the district court erred in granting

summary judgment based on res judicata because there was no final

judgment on the merits as to the equal protection claims asserted

in Lee I.    Lee argues that the district court’s dismissal of his

equal protection claim against the City, based on his failure to

plead   an   official   policy,   practice,            or   custom,   was   not   an

adjudication on the merits. Lee is incorrect. “[A] judgment of

dismissal for failure to state a claim is a judgment on the

merits, with preclusive effect.” May v. Transworld Drilling Co.,

786 F.2d 1261, 1263 (5th Cir. 1986).2



  2
   Lee also argues that the underlying dismissal for failure to
  allege a policy, practice, or custom was itself erroneous,
  essentially rearguing the appellate issue urged in Lee I.
  However, we affirmed the dismissal on this point in Lee I,
  Dotson, 2006 WL 1097845, *2, and Lee’s argument therefore is
  itself barred by res judicata.


                                        4
     Lee argues second that the district court erred in granting

summary judgment based on res judicata because he could not have

asserted the claims in Lee II as part of his suit in Lee I. In

Lee I, Lee asserted claims of Title VII employment discrimination

and equal protection violations. In Lee II, he asserted claims of

equal protection, access to courts, and due process violations

pursuant to section 1983, along with similar state law claims.

     Lee concedes that the claims asserted in Lee I and Lee II

arise out of the same transaction and nucleus of operative facts,

but argues that he was not fully aware of the factual predicate

for the claims asserted in Lee II until the discovery of the site

operating plan, apparently after the deadline to request leave to

amend his complaint in Lee I. Lee argues that as a result of the

belated discovery of documents after the deadline for amendments,

the adjudication of the Lee I claims should not preclude the

assertion of the claims in Lee II.

     “[I]t is black-letter law that res judicata ... bars all

claims that were or could have been advanced in support of the

cause of action on the occasion of its former adjudication.”

Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 (5th Cir.

1983)(en   banc)(emphasis   in   original).   This   general   principle

applies specifically to claims first asserted under Title VII and



                                   5
in a subsequent suit under section 1983. See id. at 559 n.3

(“[W]hen § 1983 is used as a parallel remedy with Title VII in a

discrimination suit, the elements of the substantive cause of

action are the same under both statutes.”); see also Harrington

v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 437 (6th Cir.

1981)(“It is undisputed that appellant’s earlier Title VII action

and the present § 1983 suit are based on the same discriminatory

acts.   When    two    successive        suits    seek    recovery       for   the    same

injury, ‘a judgment on the merits operates as a bar to the later

suit,    even   though      a     different      legal    theory    of    recovery     is

advanced in the second suit.’”).

       Lee’s    belated     discovery      of     documents     that      support      and

strengthen his claims does not provide a basis for avoiding the

res judicata effect of the judgment in Lee I. Lee discovered

these   documents      before      the   entry     of    judgment    in    Lee   I,    and

despite the fact that the district court had extended several

other scheduling order deadlines at Lee’s request, Lee failed to

make any request to amend his complaint to include his new legal

theories based on the same set of operative facts. In light of

such    failure,      we   will    not   grant     Lee    an   exception       from    res

judicata. Cf. Nilsen, 701 F.2d at 563 (affirming application of




                                           6
res judicata to later section 1983 suit where plaintiff filed

untimely motion to amend in prior Title VII suit).3

      Because we agree that the claims asserted in Lee II are

barred by the res judicata effect of the judgment in Lee I, we

AFFIRM the judgment of the district court.

      AFFIRM.




  3
    Indeed, had Lee requested, the district court may well have
  been obligated to allow such an amendment. We have previously
  recognized that under certain circumstances it may be an abuse
  of discretion for a trial court to deny a plaintiff's motion
  to amend when the denial of that motion could unduly prejudice
  the plaintiff's action as a result of res judicata
  implications. See Underwriters at Interest on Cover Note
  JHB92M10582079 v. Nautronix, Ltd., 79 F.3d 480, 485 (5th Cir.
  1996); Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 600 n.
  3 (5th Cir.1981) (noting that where res judicata might bar a
  subsequent action by the plaintiff, the denial of a motion to
  amend in order to add that cause results in undue prejudice).
  Because Lee never requested such an amendment, we need not
  address the issue.


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