                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 15a0284p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


 ERIC D. WHEELER,                                               ┐
                                       Plaintiff-Appellant,     │
                                                                │
                                                                │        No. 15-3484
            v.                                                  │
                                                                 >
                                                                │
 DAYTON POLICE DEPARTMENT; RYAN HALBURNT;                       │
 MICHAEL T. FULLER; CITY OF DAYTON, OHIO,                       │
                            Defendants-Appellees.               │
                                                                ┘
                            Appeal from the United States District Court
                             for the Southern District of Ohio at Dayton.
                     No. 3:13-cv-00300—Michael J. Newman, Magistrate Judge.
                                 Decided and Filed: December 4, 2015

                 Before: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*

                                           _________________

                                                COUNSEL

ON BRIEF: Charles E. McFarland, New Castle, Kentucky, for Appellant. John C. Musto,
DAYTON LAW DEPARTMENT, Dayton, Ohio, for Appellees.

                                           _________________

                                                 OPINION
                                           _________________

        SUTTON, Circuit Judge. In June 2012, Eric Wheeler filed a lawsuit alleging that two
police officers violated his constitutional rights during a 2009 arrest. A district court dismissed
his complaint, and we affirmed.           Now Wheeler brings a new lawsuit stemming from the
2009 arrest—namely a challenge to a bench warrant arrest in April 2012 for failing to appear on

        *
           The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan,
sitting by designation.




                                                      1
No. 15-3484                   Wheeler v. Dayton Police Dep’t, et al.             Page 2

one of the two charges that arose from the 2009 arrest—raising similar constitutional challenges.
Similar allegations arising from the same underlying dispute lead to a similar result: The trial
court rejected the second action on claim-preclusion grounds, and so do we.

        On May 19, 2009, Dayton police officers Ryan Halburnt and Michael Fuller arrested
Wheeler for possession of marijuana and cocaine. The arrest led to two charges: one for felony
drug possession (for the cocaine) in Montgomery County Common Pleas Court and the other for
misdemeanor drug possession (for the marijuana) in Dayton Municipal Court. The municipal
court scheduled a trial for Wheeler’s misdemeanor charge, but he failed to appear. The court
issued a bench warrant for his arrest.

        A few months later, Wheeler pleaded guilty to the felony charge in the court of common
pleas, and he received a two-year prison sentence. He served his time, but in April 2012, shortly
after his release, Dayton police officers arrested him again—this time on the outstanding bench
warrant. Wheeler posted bail, and the prosecutor dropped the misdemeanor charge two days
after the arrest.

        In June 2012, Wheeler filed his first federal lawsuit arising from the 2009 arrest. He filed
the action against Halburnt, Fuller, and the Dayton Police Department and alleged that, during
the 2009 arrest, the officers had violated his constitutional rights by conducting an illegal search
and using excessive force. He also alleged that Halburnt had “planted” marijuana on him.
R. 20-2 at 11. The district court dismissed Wheeler’s complaint, finding that the statute of
limitations had run on his claims. We affirmed but on slightly different grounds. We noted that
the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), prevents plaintiffs
from “recover[ing] damages for [an] allegedly unconstitutional conviction” unless the conviction
has been reversed or otherwise invalidated. See Wheeler v. Dayton Police Dep’t, No. 12-4029,
slip op. at 3 (6th Cir. Mar. 15, 2013). We held that, to the extent Wheeler challenged the
constitutionality of his felony conviction, Heck barred his claims, while the statute of limitations
blocked the remaining challenges. Id. at 3–4.

        In 2013, Wheeler returned to federal court, filing an action against the same defendants
(Halburnt, Fuller, and the Dayton Police Department) plus the City of Dayton itself. This time,
instead of directly attacking the 2009 arrest, Wheeler alleged that his April 2012 arrest on the
No. 15-3484                  Wheeler v. Dayton Police Dep’t, et al.              Page 3

outstanding bench warrant was unconstitutional. His theory was that, because Halburnt and
Fuller allegedly fabricated evidence and falsified the misdemeanor citation, the marijuana charge
should never have been brought, which means the bench warrant should never have issued. A
magistrate judge (who, with the parties’ consent, entered a final judgment in this case) found that
claim preclusion barred Wheeler’s suit. He appealed.

       Claim preclusion prevents parties from litigating matters that “should have been
advanced in an earlier suit.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1
(1984). To establish claim preclusion, the defendants need to show (1) “a final judgment on the
merits” in a prior action; (2) “a subsequent suit between the same parties or their privies”; (3) an
issue in the second lawsuit that should have been raised in the first; and (4) that the claims in
both lawsuits arise from the same transaction. Montana v. United States, 440 U.S. 147, 153
(1979) (quotation omitted); Wilkins v. Jakeway, 183 F.3d 528, 532, 535 (6th Cir. 1999).

       The defendants satisfy all four elements. One: Wheeler’s previous lawsuit ended with a
judgment on the merits. We affirmed the district court’s decision to dismiss that action with
prejudice, and dismissals with prejudice generally are judgments on the merits that bar plaintiffs
from refiling their claims in the court that dismissed them. See Semtek Int’l Inc. v. Lockheed
Martin Corp., 531 U.S. 497, 505–06 (2001).

       Two: As Wheeler concedes, this lawsuit involves the same parties as the previous one.
Although Wheeler did not name the City of Dayton as a defendant in his earlier lawsuit, he did
sue the Dayton Police Department, which is a “subdivision” of the city itself. Tysinger v. Police
Dep’t, 463 F.3d 569, 572 (6th Cir. 2006); see Ohio Rev. Code. § 715.05.

       Three: Wheeler’s claims could have (and should have) been raised in the June 2012
action. His 2012 arrest occurred two months before he filed his previous lawsuit, and his
complaint in that action included the factual allegations that, Wheeler now claims, make the
2012 arrest illegal. He stated, for example, that he “had no marijuana on him ever”; that he
could not possibly have been hiding “3.0 grams of marijuana . . . in a front pocket”; and that
Halburnt “planted the bag of marijuana.” R. 20-2 at 10–11. With these assertions already in his
complaint, Wheeler should have taken the next step and alleged (based on these same facts) that
the bench warrant leading to his 2012 arrest was invalid.
No. 15-3484                    Wheeler v. Dayton Police Dep’t, et al.            Page 4

        Four: Wheeler’s previous lawsuit and this one “arose out of the same transaction.”
Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 580 (6th Cir. 2008) (quotation omitted).
That transaction was Wheeler’s 2009 arrest, which gave rise to the allegations in his prior lawsuit
(that the officers conducted an illegal search and used excessive force) and to the allegations in
this one (that the officers planted evidence and falsified a citation).

        Wheeler counters that claim preclusion does not apply for three reasons.           He first
maintains that there was no “final decision on the merits” in the previous lawsuit because, when
we affirmed the district court’s judgment in that case, we relied on the statute of limitations and
Heck v. Humphrey, 512 U.S. 477 (1994). When courts dismiss claims under Heck, they typically
do so without prejudice, see Heck, 512 U.S. at 479; Callihan v. Schneider, 178 F.3d 800, 804
(6th Cir. 1999), and dismissals without prejudice generally are not judgments on the merits for
claim-preclusion purposes, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990).
To the extent we relied on Heck in disposing of the previous action, Wheeler contends, we
should not treat that lawsuit as a bar to this one.

        Wheeler has a point, but he also has a problem. He may be right that Heck-barred claims
usually are dismissed without prejudice, but that is not what the previous panel did. It affirmed
the district court’s decision to dismiss all of Wheeler’s claims with prejudice, and it subsequently
denied Wheeler’s petition for panel rehearing. See Wheeler, No. 12-4029, slip op. at 2–4, reh’g
denied, No. 12-4029 (6th Cir. May 9, 2013). If Wheeler disagreed with the disposition of his
earlier suit, his best bet—his only bet—was to file an en banc petition or to seek Supreme Court
review. What he cannot do is ask us to convert a prior dismissal with prejudice into one without
prejudice, or request that we rewrite the previous panel’s order so that it no longer acts as a
judgment on the merits. See Phillip v. United States, 229 F.3d 550, 552–53 (6th Cir. 2000);
Hudson v. Hedge, 27 F.3d 274, 276 (7th Cir. 1994). And claim preclusion at all events, bitter
though the medicine may be, applies to all final judgments, even those with which a party
disagrees. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).

        Perhaps making this medicine a little less bitter to swallow is this reality: Even if the
prior panel had dismissed Wheeler’s Heck-barred claims without prejudice, claim preclusion still
would apply. Recall that the earlier panel did not dismiss all of Wheeler’s claims on Heck
No. 15-3484                   Wheeler v. Dayton Police Dep’t, et al.             Page 5

grounds; it found that the statute of limitations barred some of them. See Wheeler, No. 12-4029,
slip op. at 3–4. One such claim (barred by the limitations period but not by Heck) was Wheeler’s
excessive-force allegation. Id. at 3. And the prior panel’s disposition of that issue alone suffices
to bar Wheeler’s claims in this case. We reached the merits of the excessive-force challenge,
because dismissals on statute-of-limitations grounds are judgments on the merits, see Mitchell v.
Chapman, 343 F.3d 811, 820 (6th Cir. 2003); Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir.
1981); Wheeler’s current allegations involve the same parties (Halburnt and Fuller) and the same
transaction (the 2009 arrest) as the excessive-force claim; and the allegations should have been
raised in a lawsuit involving that claim. Even if we put Wheeler’s Heck-barred claims to one
side, in other words, claim preclusion still would block this lawsuit.

       Wheeler next argues that his two lawsuits do not involve the same claims, because his
previous action related to the 2009 arrest while this one relates to the 2012 arrest. But claim
preclusion does not operate at this level of generality. We look not at the specific injuries that
Wheeler alleges (here, the second arrest), but at the underlying transaction that gave rise to those
injuries. See J.Z.G. Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 215 (6th Cir. 1996). And the sole
basis of Wheeler’s challenge to his 2012 arrest is that the officers acted illegally during the
2009 arrest by planting evidence on him and falsifying a citation. That is why Halburnt and
Fuller, not the officers who arrested Wheeler in 2012, are the defendants in this lawsuit, and that
is why Wheeler should have raised these allegations in his earlier complaint.

       Wheeler, last of all, alleges that claim preclusion would violate “public policy” if applied
here. But the Supreme Court has cautioned against making equitable exceptions to traditional
claim-preclusion principles, see Moitie, 452 U.S. at 399–402, and Wheeler has not offered any
sound reason for ignoring standard claim-preclusion rules here. Sure, he maintains that barring
this lawsuit will infringe on his “right to petition the government.” Appellant’s Br. 19. But that
right guarantees only Wheeler’s ability to file a lawsuit, see Borough of Duryea v. Guarnieri,
131 S. Ct. 2488, 2494 (2011); it does not displace claim preclusion or other procedural bars once
the case gets here. Nor do the public policies underlying § 1983 cut against claim preclusion in
cases filed under that statute. See Castorr v. Brundage, 674 F.2d 531, 536–37 (6th Cir. 1982).
Nor do we see how barring these claims will result in “manifest injustice.” Appellant’s Br. 22–
No. 15-3484                   Wheeler v. Dayton Police Dep’t, et al.          Page 6

23.   A “grave injustice” does not result when courts apply “accepted principles of [claim
preclusion],” Moitie, 452 U.S. at 401, especially when Wheeler offers no good reason for failing
to include these allegations in his earlier complaint.

       For these reasons, we affirm.
