                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                            June 12, 2012
                       UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
                                       TENTH CIRCUIT


 CHARLES PATRICK COSGROVE,

                Plaintiff–Appellant,
                                                             No. 10-3274
           v.                                    (D.C. No. 2:07-CV-02125-SAC-GLR)
                                                              (D. Kansas)

 KANSAS DEPARTMENT OF SOCIAL
 AND REHABILITATIVE [sic]
 SERVICES; DONNA WHITEMAN;
 MICHAEL VANLANDINGHAM; LOIS
 MITCHELL; SYDNEY KRAFT;
 ALBERTA BRUMLEY; DELMAR
 BRUMLEY,

                Defendants–Appellees.


                              ORDER AND JUDGMENT*


Before O’BRIEN, McKAY, and MATHESON, Circuit Judges.



       Plaintiff Charles Cosgrove appeals from the district court’s dismissal of his § 1983

case on various grounds. In his pro se § 1983 complaint, Plaintiff alleged his civil rights

were violated when as a young child he was removed from his biological parents’ custody


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and placed with abusive foster parents. Plaintiff alleged he was kept in the abusive foster

home for over eight years despite repeated complaints made by Plaintiff, his biological

parents, and others, finally being removed in 1992 only after another child in the home

died as a result of extreme physical abuse. This action was filed against the abusive

foster parents, the Kansas Department of Social and Rehabilitation Services, and four

State officials in both their individual and official capacities. The district court dismissed

the complaint based on, inter alia, the doctrine of res judicata and the failure to allege a

cognizable claim for relief under § 1983.

       We first consider the district court’s dismissal of most of Plaintiff’s claims on res

judicata grounds, reviewing this decision de novo. See Mactec, Inc. v. Gorelick, 427 F.3d

821, 831 (10th Cir. 2005). The instant complaint is nearly identical to a state-court

complaint Plaintiff filed in 2004, differing in only two substantive ways: (1) it includes

the phrase “sexual abuse,” and (2) it names the State employees in their individual as well

as official capacities. The 2004 state-court complaint was dismissed with prejudice based

on the applicable statutes of limitations, and the district court concluded that it had

preclusive effect as to all of Plaintiff’s claims except his claims against the State

employees in their individual capacities.

       As the district court correctly noted, the preclusive effect of the 2004 state-court

judgment is determined by Kansas law. See Jarrett v. Gramling, 841 F.2d 354, 356 (10th

Cir. 1988) (“The claim-preclusive effect of a state-court judgment in the context of a

subsequent suit in federal court under § 1983 is therefore determined by state law.”).

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Under Kansas law, res judicata prevents relitigation of previously litigated claims when

the following four elements are present: “(1) same claim; (2) same parties; (3) claims

were or could have been raised; and (4) a final judgment on the merits.” Winston v. Kan.

Dep’t of Soc. & Rehab. Servs., 49 P.3d 1274, 1285 (Kan. 2002). Plaintiff concedes the

state court’s dismissal of the 2004 complaint based on the statute of limitations was a

final judgment on the merits, and we therefore consider only the application of the first

three elements to this case.

       “The test for determining whether the claims for relief are the same is whether the

primary right and duty and delict or wrong is the same in each action.” Dexter v. Brake,

269 P.3d 846, 853 (Kan. Ct. App. 2012). “It should be noted that the doctrine of res

judicata prevents the splitting of a single cause of action or claim into two or more suits.

The doctrine of res judicata requires that all the grounds or theories upon which a cause

of action or claim is founded be asserted in one action or they will be barred in any

subsequent action.” Parsons Mobile Prods., Inc. v. Remmert, 531 P.2d 435, 437 (Kan.

1975). In this case, the 2004 complaint alleged the same primary right and duty as the

instant complaint—the constitutional right of children in state custody to be “reasonably

safe from harm” and the duty of state officials to exercise professional judgment in foster

care decisions. Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 893 (10th Cir.

1992). The complaints also alleged the same primary wrong—Plaintiff’s placement from

1984 until 1992 in a foster home where there was a pattern and practice of abuse. The

fact that Plaintiff did not explicitly mention sexual abuse in his earlier complaint does not

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create a new claim under the circumstances of this case. Plaintiff’s allegations of sexual

abuse could have been raised in the 2004 complaint and are part of the same cause of

action, and we therefore conclude that both the first and third elements of the Kansas

claim-preclusion test are satisfied in this case.

       As for the second element, the instant complaint lists all of the same Defendants as

the 2004 complaints, but it differs from the earlier complaints in that it raises claims

against the four State officials in their individual as well as official capacities. Kansas

follows the Restatement view that “a party in an action in one capacity is not bound by or

entitled to the benefits or rules of res judicata in a subsequent action in which he appears

in another capacity.” Betz v. Farm Bureau Mut. Ins. Agency, 8 P.3d 756, 759 (Kan. 2000)

(citing Restatement (Second) of Judgments § 36 (1982)). Thus, the district court

correctly held that Plaintiff’s claims against the State officials in their individual

capacities—and only these claims—were not barred by the doctrine of res judicata.

       Although the district court concluded that Plaintiff’s individual-capacity claims

against the four State officials were not barred by res judicata, the court concluded that

these claims should be dismissed because they failed to state a plausible claim for relief

under § 1983. We review this conclusion de novo. See Kansas Penn Gaming, LLC v.

Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

       Plaintiff’s complaint alleged violations of his Eighth Amendment, equal

protection, and due process rights. As for Plaintiff’s Eighth Amendment claim, the

Eighth Amendment’s protections do not apply to children in foster care, who are instead

                                              -4-
protected by the “Fourteenth Amendment right to reasonable protection from physical

harm.” Yvonne L., 959 F.2d at 893; see also Bell v. Wolfish, 441 U.S. 520, 537 n.16

(1979). We therefore affirm the district court’s dismissal of this claim. As for the

remaining claims, the district court concluded that the allegations in Plaintiff’s complaint

were insufficient to support a claim for relief. Specifically, Plaintiff’s equal protection

claim was not supported by any allegations regarding his membership in a defined class

or Defendants’ different treatment of similarly situated individuals, and his due process

claim was not supported by allegations specifically linking each Defendant to the alleged

violation of Plaintiff’s constitutional right to be reasonably safe from harm while in foster

care. We agree that Plaintiff’s complaint does not contain sufficient specificity to state a

plausible claim for relief under Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009), and we

therefore affirm the dismissal of these claims as well.

       The district court’s order of dismissal is AFFIRMED.



                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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