     07-1758-cv
     O'Connor v. Pierson

1                          UNITED STATES COURT OF APPEALS

2                              FOR THE SECOND CIRCUIT

3                                August Term, 2008

4    (Argued: March 9, 2009                            Decided: June 3, 2009)

5                              Docket No. 07-1758-cv

6                    -------------------------------------

7                                 THOMAS O'CONNOR,

8                               Plaintiff-Appellant,

9                                      - v -

10   LYNNE B. PIERSON, ELLEN C. HEALY, CHRISTOPHER A. DUMAS, PATRICIA
11      M. STRONG, CHRISTINE T. FORTUNATO, DONNA H. HEMMANN, STACEY
12      HODGES, JOHN F. MORRIS, FREDERICK E. PETRELLI JR., PENNY H.
13            STANZIALE, and WETHERSFIELD BOARD OF EDUCATION,

14                             Defendants-Appellees.

15                   -------------------------------------

16   Before:     WINTER and SACK, Circuit Judges, and COGAN, District
17               Judge.*

18               Appeal from an order of the United States District

19   Court for the District of Connecticut (Robert N. Chatigny, Chief

20   Judge) granting the defendants' motion for summary judgment.        We

21   agree with the district court that the plaintiff's claims, which

22   are based on an alleged denial of his right to substantive due

23   process, are barred under the doctrine of res judicata inasmuch

24   as they were or could have been brought in the parallel suit




           *
             The Honorable Brian M. Cogan of the United States
     District Court for the Eastern District of New York, sitting by
     designation.
1    based on the same facts that were litigated to a final judgment

2    in Connecticut state court.

3               Affirmed.

4                              LEON M. ROSENBLATT, Law Offices of Leon
5                              Rosenblatt, West Hartford, CT, for
6                              Appellant.


 7                             MICHAEL J. ROSE, Rose Kallor, LLP
 8                             (Johanna G. Zelman, Melinda A. Powell,
 9                             of counsel), Hartford, CT, for
10                             Appellees.

11   Sack, Circuit Judge:

12              Plaintiff-appellant Thomas O'Connor pursued parallel

13   lawsuits against the defendants in federal and state court.

14              What became the federal lawsuit was first filed in the

15   Superior Court for the State of Connecticut.   Based on O'Connor's

16   assertion of, inter alia, causes of action under federal law, the

17   action was removed by the defendants to the United States

18   District Court for the District of Connecticut.   When the case

19   stalled, the plaintiff filed a second complaint in Superior Court

20   in which he limited himself to the assertion of state law claims

21   only.   This lawsuit went to trial.   A state-court jury found in

22   O'Connor's favor on one of his claims, but against him on the

23   others.   Both sides appealed.

24              Shortly after the state trial court judgment was

25   entered, the district court in the pending parallel federal

26   action (Robert N. Chatigny, Chief Judge) entered judgment for the

27   defendants on all of O'Connor's federal claims, and remanded the

28   pendent state claims to state court.   The district court did not

                                      2
1    reach an issue raised by the defendants: whether the state court

2    judgment had a res judicata (or "claim preclusion") effect on the

3    claims pending in the federal action.       That district court

4    judgment was appealed to this Court.

5              While the federal appeal was pending here, the

6    Connecticut Appellate Court reversed the judgment based on the

7    state-court jury verdict with respect to the one claim on which

8    O'Connor had been successful -- invasion of privacy –- and

9    affirmed the remaining claims on which the defendants had

10   prevailed.   The Connecticut Supreme Court denied O'Connor's

11   petition for certification for appeal.       All of O'Connor's claims

12   in the state-court lawsuit were therefore unsuccessful.

13             Shortly after the Connecticut Supreme Court ruled, we

14   vacated the district court's decision in the federal case in

15   part, and remanded for further consideration of O'Connor's

16   substantive due process claims.    We declined to reach the

17   defendants' res judicata argument, concluding that it had not

18   been sufficiently presented to the district court.       O'Connor v.

19   Pierson, 426 F.3d 187, 194-95 (2d Cir. 2005).

20             Following our remand, the district court granted the

21   defendants' motion for summary judgment on O'Connor's substantive

22   due process claims on the ground that in light of the state court

23   decision, they were barred by the doctrine of res judicata.

24   O'Connor v. Pierson, 482 F. Supp. 2d 228 (D. Conn. 2007).

25             The plaintiff appeals.       We affirm.



                                        3
1                                 BACKGROUND

2                On January 26, 2000, O'Connor brought this action in

3    Connecticut Superior Court, Judicial District of Hartford,

4    against the Wethersfield Board of Education, members of the Board

5    in their official capacities, and Lynne B. Pierson, the

6    Superintendent of Schools, in both her individual and official

7    capacity.   O'Connor v. Pierson, No. CV-595721-S (Conn. Super. Ct.

8    January 26, 2000).   O'Connor, a public-school teacher, alleged

9    that the defendants had acted unlawfully by conditioning his

10   return to work following administrative leave on his agreement to

11   undergo a psychiatric examination and to release all of his

12   medical records to the defendants.   He contended that these

13   conditions violated his rights under both the United States

14   Constitution and the Constitution of the State of Connecticut.1

15   He also asserted state common-law claims for negligent and

16   intentional infliction of emotional distress, invasion of

17   privacy, and intentional interference with beneficial and

18   contractual relations.   The defendants removed the action to the

19   United States District Court for the District of Connecticut on

20   the basis of federal question jurisdiction arising out of




          1
             These state and federal constitutional claims were later
     amended to clarify that they were brought under the Due Process
     Clause. They were ultimately construed by the district court as
     assertions that the defendants had violated O'Connor's rights to
     both procedural and substantive due process. See O'Connor, 482
     F. Supp. 2d at 229. O'Connor has not challenged the district
     court's interpretation.

                                      4
1    O'Connor's assertion of federal constitutional claims.    See 28

2    U.S.C. § 1441.

3               In February 2001, Magistrate Judge Donna F. Martinez

4    filed a Recommended Ruling in the removed case, concluding that

5    summary judgment should be granted in favor of the defendants on

6    the federal constitutional claims and that the court should

7    dismiss the pendent state law claims without prejudice.    See 28

8    U.S.C. § 1367(c)(3).   The following month, the district court

9    adopted the magistrate judge's recommendation in part, dismissing

10   O'Connor's federal procedural due process claim but declining to

11   dismiss his federal substantive due process claims and deferring

12   decision on that claim pending further briefing.    In light of the

13   fact that a federal claim remained before it, the district court

14   declined to dismiss the pendent state law claims.    See O'Connor,

15   482 F. Supp. 2d at 229.

16              In June 2001, O'Connor initiated a second action in

17   State Superior Court against the Wethersfield Board of Education.

18   O'Connor v. Wethersfield Bd. of Educ., No. CV-01-0808376-S (Conn.

19   Super. Ct., June 11, 2001); see also O'Connor, 482 F. Supp. 2d at

20   229.   It was based on the same facts as the first, previously

21   removed, action, asserting many of the same state-law causes of

22   action along with several new ones.    The second action contained

23   no claims under federal law and was therefore not subject to

24   removal on that basis.    O'Connor, 482 F. Supp. 2d at 229.

25              Later that year, the Board unsuccessfully moved in

26   state court to dismiss the pending state-court action based on

                                       5
1    the pendency of this case in federal court.    See O'Connor v.

2    Wethersfield Bd. of Educ., 34 Conn. L. Rptr. 621, 621, 2003 WL

3    21299644, at *1, 2003 Conn. Super. LEXIS 1581, at *1 (Conn.

4    Super. Ct. May 20, 2003) (unpublished opinion) (discussing denial

5    of the motion to dismiss in 2001).     After several of the claims

6    in the state-court action were dismissed by the trial court in

7    its decision on a motion for summary judgment by the defendants,

8    Mem. of Decision on Def's Mot. for Summary Judgment, O'Connor v.

9    Wethersfield Bd. of Educ., CV-01-0808376-S (Conn. Super. Ct.,

10   July 7, 2003), three claims remained: 1) tortious invasion of

11   privacy, 2) intentional infliction of emotional distress, and 3)

12   a statutory claim based on Conn. Gen. Stat. § 31- 51q, which

13   prohibits employers from disciplining or discharging employees in

14   retaliation for exercising their right to free speech.    They were

15   tried to a jury beginning in September 2003.

16             In October 2003, the state-court jury returned a

17   verdict in favor of O'Connor on his claim for tortious invasion

18   of privacy, awarding him $162,500 in damages, but in favor of the

19   Board on the other two claims.   See O'Connor, 482 F. Supp. 2d at

20   230 (describing state-court proceedings).    The trial court

21   entered a judgment based on the verdict.    Both parties appealed

22   from the judgments against them.

23             On July 5, 2005, the Connecticut Appellate Court

24   decided that the judgment for O'Connor on his invasion of privacy

25   claim was barred by the Board's governmental immunity.    It

26   therefore reversed the judgment of the Superior Court insofar as

                                        6
1    it had been in O'Connor's favor.       O'Connor v. Bd. of Educ., 90

2    Conn. App. 59, 877 A.2d 860 (2005).       It affirmed the remainder of

3    the judgment against him.    Id.   On September 12, 2005, the

4    Connecticut Supreme Court denied O'Connor's petition for

5    certification for appeal.    O'Connor v. Bd. of Educ., 275 Conn.

6    912, 882 A.2d 675 (2005).

7                Soon after the state-court jury reached its verdict,

8    the defendants in the action that remained pending in federal

9    district court -- the one now on appeal before us -- submitted a

10   letter to the federal district court requesting a conference

11   regarding their intention to file a supplemental motion to

12   dismiss based on a theory of res judicata.       O'Connor, 482 F.

13   Supp. at 230.    The letter complied with a provision in a previous

14   district court order regarding case management, which required

15   the parties to request a conference before filing dispositive

16   motions.    O'Connor, 482 F. Supp. at 230.

17               On December 12, 2003, the district court held a

18   conference as requested.    In the course of the conference, the

19   court orally granted summary judgment to the defendants on the

20   remaining substantive due process claims.       Later, in a ruling and

21   order, the court explained its rationale for this dismissal.

22   O'Connor v. Pierson, No. 00 Civ. 339 (D. Conn. Dec. 17, 2003).

23   It decided, inter alia, that the Board was both justified and had

24   a legitimate interest in requesting the medical records and

25   therefore did not violate O'Connor's substantive due process

26   rights.    Id.; see also O'Connor, 482 F. Supp. 2d at 230.     The

                                        7
1    issue of whether the state court judgment precluded a federal

2    judgment on the claims based on res judicata principles was

3    unnecessary to the resolution of the motion, and the district

4    court did not reach it.

5               On December 16, 2003, a final judgment was entered in

6    favor of the defendants on all of the federal claims against

7    them, and the pendent state claims were remanded to Connecticut

8    Superior Court.    On January 6, 2004, O'Connor appealed the

9    judgment of the district court to this Court.

10              We affirmed the judgment with respect to O'Connor's

11   procedural due process claim, but vacated it as to the

12   substantive due process claims.     O'Connor, 426 F.3d 187.    We

13   concluded that there was a genuine issue of material fact as to

14   whether, in insisting that O'Connor release his medical records,

15   the Board "acted out of spite, or to keep O'Connor from teaching

16   by whatever means necessary," such that the Board's action would

17   "shock the conscience."    Id. at 204.   Such a finding of fact

18   could have served as a basis for a viable substantive due process

19   cause of action.    See id. at 200-04.   We declined to address the

20   issue of res judicata because it had not been preserved for

21   appeal.2   Id. at 194-95 ("A motion by the Board raising the


          2
             We do not read our prior decision to hold, as O'Connor
     asserts, that the defense of res judicata had forever been waived
     by the defendants. And as the district court observed, "even if
     the Second Circuit's statement about waiver is binding, res
     judicata can still be applied at this stage because a court has
     authority to invoke the doctrine of res judicata on its own
     initiative, even when the defense has been waived." O'Connor,
     482 F. Supp. 2d at 233; see Salahuddin v. Jones, 992 F.2d 447,
     449 (2d Cir. 1993) (per curiam) ("The failure of a defendant to
                                     8
1    claim-preclusion defense when it became available would have

2    preserved the issue for appeal; a letter asking for a briefing

3    schedule, which was not followed up, did not.").

4                On remand, the defendants filed a motion to dismiss on

5    the ground that the remaining substantive due process claims were

6    barred by the doctrine of res judicata.      On March 31, 2007, the

7    district court granted that motion, concluding that:

 8               there can be no doubt that plaintiff's
 9               substantive due process claims are barred by
10               the judgment in the state court action. To
11               prevail on his substantive due process claims
12               under § 1983, plaintiff must prove that the
13               defendants' insistence on obtaining his past
14               medical records was arbitrary and oppressive.
15               See O'Connor v. Pierson, 426 F.3d at 204.
16               The Board's insistence on obtaining these
17               records, and its intent in doing so, were
18               central to the invasion of privacy and
19               intentional infliction of emotional distress
20               claims that were tried in state court.

21   O'Connor, 482 F. Supp. 2d      at 232; see also id. at 235.

22               The district court again entered judgment against

23   O'Connor.    Id. at 235.    O'Connor appeals.

24                                  DISCUSSION

25               I.    Standard of Review

26               "We review de novo the district court's application of

27   the principles of res judicata."       EDP Med. Computer Sys., Inc. v.

28   United States, 480 F.3d 621, 624 (2d Cir. 2007) (internal

29   quotation marks omitted).

30               II.    Res Judicata (or "Claim Preclusion")



     raise res judicata in answer does not deprive a court of the
     power to dismiss a claim on that ground.").
                                     9
1              "[A] federal court must give to a state-court judgment

2    the same preclusive effect as would be given that judgment under

3    the law of the State in which the judgment was rendered."   Migra

4    v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984);

5    see also Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 ("[28

6    U.S.C. §] 1738 requires federal courts to give the same

7    preclusive effect to state court judgments that those judgments

8    would be given in the courts of the State from which the

9    judgments emerged.").

10             Under Connecticut law:

11             [A] former judgment on a claim, if rendered
12             on the merits, is an absolute bar to a
13             subsequent action on the same claim. Claim
14             preclusion prevents the pursuit of any claims
15             relating to the cause of action which were
16             actually made or might have been made. The
17             judicial doctrine of res judicata expresses
18             no more than the fundamental principle that
19             once a matter has been fully and fairly
20             litigated, and finally decided, it comes to
21             rest. The doctrine of res judicata applies
22             as to the parties and their privies in all
23             other actions in the same or any other
24             judicial tribunal of concurrent
25             jurisdiction . . . . [T]he appropriate
26             inquiry with respect to claim preclusion is
27             whether the party had an adequate opportunity
28             to litigate the matter in the earlier
29             proceeding . . . . [T]he scope of matters
30             precluded in the subsequent suit necessarily
31             depends on what has occurred in the former
32             adjudication.
33
34   Joe's Pizza, Inc. v. Aetna Life and Cas. Co., 236 Conn. 863, 871-

35   72, 675 A.2d 441, 446-47 (1996)(citations, internal quotation

36   marks, emphasis, and alterations omitted).   "The claim that is

37   extinguished by the judgment in the first action includes all


                                    10
1    rights of the plaintiff to remedies against the defendant with

2    respect to all or any part of the transaction, or series of

3    connected transactions, out of which the action arose."   Comm'r

4    of Envtl. Prot. v. Conn. Bldg. Wrecking Co., 227 Conn. 175, 189-

5    90, 629 A.2d 1116, 1124 (1993) (internal quotation marks and

6    alterations omitted).

7              It is undisputed on appeal that the claims in the

8    instant case and the state-court case arose out of the same

9    transaction, or series of connected transactions, and are

10   therefore the same for purposes of the res judicata inquiry.    Cf.

11   O'Connor, 482 F. Supp. 2d at 232 (relying on Conn. Bldg. Wrecking

12   Co., supra, and deciding for the defendants on the "identity of

13   claims" issue).   O'Connor does dispute, however, that: (1) the

14   judgment in the state court was rendered on the merits; (2) the

15   parties in the state and federal actions are the same or are in

16   privity with each other; and (3) O'Connor had an adequate

17   opportunity to litigate his claims in the state court action.

18   For the reasons that follow, we conclude in the affirmative as to

19   each issue, and that the district court therefore correctly

20   decided that O'Connor's federal lawsuit was barred by the

21   judgment in Connecticut state court.

22   A. Whether the State Court Action Was Decided on the Merits

23             O'Connor argues that because the state-court action was

24   ultimately decided on appeal in part on statutory immunity


                                     11
1    grounds, it was not decided on the merits.    We find this argument

2    unhelpful.3

3              The invasion of privacy claim was the only claim on

4    which the jury ruled in O'Connor's favor.    The Appellate Court

5    reversed, however, concluding that the trial court "improperly

6    failed to set aside the verdict because the plaintiff's claim

7    against the defendant for invasion of privacy was barred by

8    governmental immunity [under Conn. Gen. Stat. § 52-557n(a)(2)]."

9    O'Connor v. Bd. of Educ., 90 Conn. App. at 63.    There is divided

10   authority as to whether a judgment based on an immunity defense

11   is a judgment on the merits for the purposes of res judicata.

12   Compare Lommen v. City of East Grand Forks, 97 F.3d 272, 275 (8th

13   Cir. 1996) (finding that, under Minnesota law, a decision based

14   on governmental immunity is considered "on the merits" for the

15   purposes of res judicata) and Flores v. Edinburg Consol. Indep.

16   Sch. Dist., 741 F.2d 773, 775 n.3 (5th Cir. 1984) ("summary

17   judgment on grounds of sovereign immunity is a judgment on the

18   merits for purposes of res judicata") with Wade v. City of

19   Pittsburgh, 765 F.2d 405, 410 (3rd Cir. 1985) (stating, with

20   regards to a state-court judgment based on statutory immunity,

21   that "we predict that under Pennsylvania law, if a judgment is

22   entered before development of the merits and is based on a




          3
             We note also that this argument may have been forfeited,
     inasmuch as it is not at all clear that it was made before the
     district court. Because we find the argument unpersuasive in any
     event, we need not address whether it was forfeited.
                                    12
1    collateral defense applicable only to the first action, claim

2    preclusion would not apply.").

3              In light of the disposition of the claim for

4    intentional infliction of emotional distress on the merits,

5    however, we do not think it matters whether the claim for

6    invasion of privacy was decided on the merits or not.    The

7    district court's conclusion that the substantive due process

8    claims could not be pursued under principles of res judicata

9    would have been valid even if it had been based on the state

10   court's decision on the merits of the intentional infliction of

11   emotional distress claim alone.    To paraphrase the district

12   court's opinion, for the plaintiff to succeed on his remaining

13   claim in federal court -- whether defendants violated his right

14   to substantive due process -- he would have had to prove that the

15   defendants' insistence on obtaining his past medical records was

16   arbitrary and oppressive.   See O'Connor, 482 F. Supp. 2d at 232.

17   The Board's insistence on obtaining these records, and its intent

18   in doing so, were central to the intentional infliction of

19   emotional distress claims that were tried in state court.      Under

20   the transactional test that the Connecticut Supreme Court has

21   adopted to determine whether an action is barred by res judicata,

22   the decision on the merits in the state court against O'Connor on

23   his intentional infliction claim therefore bars his pursuit of

24   the substantive due process claims in federal district court.4


          4
             With the possible exception of the invasion of privacy
     claim, all of O'Connor's other claims were also indisputably
                                       13
1    See Comm'r of Envtl. Prot., 227 Conn. at 189-90, 629 A.2d at 1124

2    (judgment in first action extinguishes all other claims "with

3    respect to all or any part of the transaction, or series of

4    connected transactions, out of which the action arose.").

5    B. Privity

6              In the state action, only the Board was a defendant.

7    In the federal action now before us, O'Connor brought suit

8    against not only the Board, but also several Board members, all

9    of whom are being sued only in their official capacities.5

10   "[O]fficial-capacity suits generally represent only another way

11   of pleading an action against an entity of which an officer is an

12   agent -- at least where Eleventh Amendment considerations do not

13   control analysis . . . ."   Monell v. Dep't of Soc. Servs. of City

14   of N.Y., 436 U.S. 658, 691 n.55 (1978).   "As long as the

15   government entity receives notice and an opportunity to respond,

16   an official-capacity suit is, in all respects other than name, to

17   be treated as a suit against the entity."   Kentucky v. Graham,

18   473 U.S. 159, 166 (1985).   We therefore agree with the district


     decided on the merits by the state court. Because we hold that
     the intentional infliction of emotional distress decision alone
     was sufficient to preclude the case at bar, we need not and do
     not reach the issue of whether the resolution on the merits of
     these other claims, viewed in isolation or in combination, would
     be sufficient to bar the present action.
          5
             Lynne B. Pierson, the Superintendent of Schools, was
     originally sued in both her individual and official capacities.
     However, O'Connor did not appeal the district court's 2001 ruling
     that Pierson is entitled to qualified immunity and therefore
     cannot be sued in her individual capacity. See O'Connor, 482 F.
     Supp. 2d at 231 n.3. Therefore, all the individual defendants
     are now being sued solely in their official capacities.
                                     14
1    court that the parties in the two actions are in privity for

2    purposes of res judicata.    See O'Connor, 482 F. Supp. 2d at 231-

3    32.

4    C. Adequate Opportunity to Litigate

5              Under Connecticut law, a party has not had an adequate

6    opportunity to litigate a claim, and res judicata therefore does

7    not apply, if "the court in the first action would clearly not

8    have had jurisdiction to entertain the omitted theory or

9    ground or, having jurisdiction, would clearly have declined to

10   exercise it as a matter of discretion ."   Conn. Nat'l Bank v.

11   Rytman, 241 Conn. 24, 44, 694 A.2d 1246, 1257 (1997) (quoting

12   Restatement (Second) of Judgments, § 25 cmt.(e) (1982); internal

13   quotation marks, emphasis and parentheses omitted).   But the

14   Connecticut courts clearly had jurisdiction to hear all the

15   claims O'Connor brought in the federal lawsuit, including those

16   brought under federal law.    See Howlett ex rel. Howlett v. Rose,

17   496 U.S. 356, 367 (1990) ("Federal law is enforceable in state

18   courts . . . .").   O'Connor does not argue otherwise.   Neither

19   does he argue that the Connecticut courts would have declined to

20   exercise that jurisdiction.

21             O'Connor contends instead that he did not have "a fair

22   and adequate opportunity to litigate all his claims in a single

23   lawsuit,"6 Pl.'s Br. 20, because had he brought his federal


           6
             O'Connor appears to cite Gladysz v. Planning and Zoning
     Comm'n of Town of Plainville, 256 Conn. 249, 262, 773 A.2d 300,
     308 (2001), for the proposition that res judicata principles
     should not bar this suit if he has not had an opportunity to
                                      15
1    claims in state court, the defendants would have removed the

2    action to federal court, and, according to O'Connor, the state

3    court claims would then have ultimately been remanded to state

4    court.   This might all be true, but it is beside the point.

5    O'Connor cites no authority, nor are we aware of any, for the

6    proposition that the specter of removal or subsequent remand,

7    which may result in a plaintiff's state law and federal law

8    claims being heard in different courts, deprives him or her of an

9    adequate opportunity to litigate his or her claims.   We agree

10   with the district court that O'Connor had "a fair and adequate

11   opportunity" to litigate his claims, even if they may eventually

12   have been separated from one another, some heard in state and

13   some in federal courts.

14                               CONCLUSION

15              We have considered the other arguments advanced by

16   O'Connor and find them to be without merit.   For the foregoing

17   reasons, the judgment of the district court is affirmed.




     litigate all of his claims in a single lawsuit. Pl.'s Br. 20.
     But Gladysz, which addresses primarily the doctrine of collateral
     estoppel (or "issue preclusion"), stands for no such proposition.

                                     16
