                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                             May 1, 2008
                             No. 07-11888                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D.C. Docket No. 06-00818-CV-ORL-28-JGG

JOSEPH KONIKOV,
CHANA KONIKOV,
                                                     Plaintiffs-Appellants,

                                  versus

ORANGE COUNTY, FL,
EDWARD CANEDA, individual and/or agent of Orange County, FL,
GEORGE LAPORTE, individual and/or agent of Orange County, FL,
MICHAEL SCOTT, individual and/or agent of Orange County FL,
ROBERT SPIVEY, individual and/or agent of Orange County, FL,
MELVIN PITTMAN, et al.,

                                                     Defendants-Appellees.
                        ______________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                  ON PETITION FOR REHEARING
             AND SUGGESTION OF REHEARING EN BANC

                              (May 1, 2008)
Before BIRCH, WILSON and COX, Circuit Judges.

PER CURIAM:

      This case is before us on Appellants’ petition for rehearing and rehearing en

banc. We grant Appellants’ petition for panel rehearing. We substitute the following

opinion for our previously issued opinion in this appeal, Konikov v. Orange County,

No. 07-11888 (11th Cir. Oct. 22, 2007).

      Joseph Konikov sued Orange County, Florida, and some of its employees in

2002, alleging violations of constitutional and statutory law with regard to a zoning

regulation prohibiting the use of his residence for religious purposes (Konikov I). The

district court in Konikov I granted summary judgment against Konikov and was

affirmed in part and reversed in part by this court. Konikov v. Orange County, 410

F.3d 1317 (11th Cir. 2005). The action was remanded to the district court and

concluded without an appeal. The Konikovs filed this suit, arising out of the same

facts as Konikov I, against Orange County and other employees (Konikov II). The

district court dismissed the suit with prejudice, based on res judicata. The Konikovs

appeal.

      This court reviews de novo a district court’s res judicata determination. EEOC

v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). A case is barred from

re-litigation under the doctrine of res judicata if: “(1) there is a final judgment on the

                                            2
merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the

parties, or those in privity with them, are identical in both suits; and (4) the same

cause of action is involved in both cases.” Ragsdale v. Rubbermaid, Inc., 193 F.3d

1235, 1238 (11th Cir. 1999). Counts I-VI of Appellants’ amended complaint are

barred by res judicata to the extent they assert causes of action against the County and

the individual defendants in their official capacity. Id. at 1238 (“Res judicata bars the

filing of claims which were raised or could have been raised in an earlier

proceeding.”).

      Further, Counts I-VI are barred by collateral estoppel to the extent they assert

causes of action against the individual defendants in their personal capacity.

Collateral estoppel bars re-litigation of issues actually litigated and necessary to the

judgment of prior litigation when the party against whom the earlier decision is

asserted had a full and fair opportunity to litigate in the earlier proceeding. Precision

Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1501 (11th Cir. 1984). The issues

presented in Counts I-VI have already been litigated, and in fact were resolved on

remand following our opinion in Konikov I, 410 F.3d 1317. See Quinn v. Monroe

County, 330 F.3d 1320, 1328 (11th Cir. 2003) (“Collateral estoppel, i.e., issue

preclusion, refers to the effect of a judgment in foreclosing relitigation of a matter

that has been litigated and decided.”).

                                           3
      Also, Count VIII, negligent supervision/retention, is barred by res judicata.

This count asserts a cause of action only against the County, which was a party in

Konikov I, and the Appellants could have asserted this claim at that time. See

Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992) (“Res judicata, or

claim preclusion, bars relitigation of matters that were litigated or could have been

litigated in an earlier suit.”) (emphasis added).

      The only remaining count is Count VII, civil conspiracy. In this count,

Appellants seek damages from the individual defendants in their personal capacity.

Because the defendants are sued in their personal capacity, they are not in privity with

the County, which was sued in Konikov I. See Willner v. Budig, 848 F.2d 1032, 1034

n.2 (10th Cir. 1988) (“Government employees in their individual capacities are not

in privity with their government employer.”); 18A Wright et al., Federal Practice and

Procedure § 4458, at 567 & n.20 (2d ed. 2002) (“[A] judgment against a government

or one government official does not bind a different official in subsequent litigation

that asserts a personal liability against the official . . . .”); see also Hurt v. Pullman,

Inc., 764 F.2d 1443, 1448 (11th Cir. 1985) (“Under basic principles of res judicata

jurisprudence, for a party to be bound by or take advantage of a prior suit that party

or its privy must not only have been present in both suits, but it has to appear in the

same capacity in both suits.”). Therefore res judicata does not bar this claim.

                                            4
Additionally, Count VII alleges a conspiracy only between the individual defendants,

not between the County and its officials, as alleged in Konikov I. Because Appellants

have not litigated this claim, it is not barred by collateral estoppel.

      The district court’s order dismissing with prejudice Appellants’ amended

complaint is reversed with respect to Count VII, but is otherwise affirmed. No Judge

in regular active service on the court having requested that the court be polled on

rehearing en banc, Fed. R. App. P. 35, Appellants’ petition for rehearing en banc is

denied.

      PETITION FOR PANEL REHEARING GRANTED. PETITION FOR

REHEARING EN BANC DENIED. DISTRICT COURT JUDGMENT AFFIRMED

IN PART, REVERSED IN PART.




                                           5
