     Case: 10-20743     Document: 00511598591         Page: 1     Date Filed: 09/09/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 9, 2011

                                       No. 10-20743                        Lyle W. Cayce
                                                                                Clerk

JOSLYN M. JOHNSON,

                                                  Plaintiff - Appellant
v.

CITY OF HOUSTON; HOUSTON POLICE DEPARTMENT,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-cv-366


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
        Joslyn Johnson sued the City of Houston (“City”), alleging that the City’s
policy preventing police officers from contacting federal immigration authorities
violated her state and federal constitutional rights. The district court dismissed
Johnson’s case, holding that a previous case Johnson had filed against the City
barred the current case under principles of claim preclusion, or res judicata. We
REVERSE.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                        No. 10-20743

                                            FACTS
       On September 21, 2006, Houston Police Officer Rodney Johnson (“Rodney”)
stopped Juan Leonardo Quintero-Perez for speeding. Rodney searched Quintero-
Perez for weapons, found and confiscated a weapon, handcuffed Quintero-Perez,
and placed him in the back of his patrol car. Sometime later, while Quintero-
Perez was still in custody, Quintero-Perez fatally shot Rodney in the back of the
head. Quintero-Perez was convicted of capital murder of a police officer and is
now serving a life sentence.
       Quintero-Perez was an illegal alien. He was convicted of a felony in 1999
and deported, but reentered the United States that year.1 Between 1999 and
2006, Houston Police Department (“HPD”) officers arrested or detained
Quintero-Perez at least three times. On none of these incidents did the HPD
officers check to see if federal immigration authorities had an outstanding arrest
warrant for Quintero-Perez. At the time of Rodney’s death, the HPD maintained
a policy prohibiting HPD officers “from communicating with the federal
Department of Homeland Security and pertinent federal databases to determine
the criminal status of detained persons and whether a federal arrest warrant is
pending for such person.” Johnson refers to this policy as the “Sanctuary Policy.”
       Sometime after Rodney’s death in 2006, the HPD changed its policy to
allow officers to check the “wanted” status of anyone legally detained and to
require officers to check the “wanted” status of anyone ticketed, arrested, or
jailed (“Current HPD Policy”). HPD officers perform these checks by running the
person’s name through several databases, including the National Crime
Information Center (“NCIC”) database, which may indicate whether the person



       1
         We take these facts from Johnson’s complaint because “[i]n reviewing the dismissal
order, [this court] take[s] the well-pled factual allegations of the complaint as true and view[s]
them in the light most favorable to the plaintiff.” Lane v. Halliburton, 529 F.3d 548, 557 (5th
Cir. 2008).

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is the subject of an outstanding warrant or wanted for another reason. The
Current HPD Policy prohibits officers from contacting federal immigration
officials unless the officer receives an “NCIC immigration hit.” An “NCIC
immigration hit” indicates that the person is the subject of an outstanding
criminal warrant issued by federal immigration authorities, an administrative
warrant of removal, or a notice of detainer for a previously deported felon
convicted of drug trafficking, firearms trafficking, or other serious crimes. The
NCIC database lists only aliens convicted and deported for “drug trafficking,
firearms trafficking, or serious violent crimes.” In addition to the NCIC
database, the federal government maintains other databases containing
information on a person’s immigration status. The Current HPD Policy does not
allow HPD police officers to obtain immigration information from any database
other than the NCIC database. Furthermore, under the Current HPD Policy,
HPD officers are forbidden from notifying federal authorities that they have
encountered a known illegal alien unless they arrest that person on a “separate
criminal charge (other than a class C misdemeanor).”2
       On September 22, 2008, Johnson, in both her individual capacity and as
the executrix for the estate of Rodney, filed suit against the City of Houston in
Texas state court (“Johnson I”). In her original complaint, Johnson alleged
negligence and gross negligence claims against the City. Johnson later amended
her complaint to add a 42 U.S.C. § 1983 claim, alleging that the City’s Sanctuary
Policy violated Rodney’s federal constitutional rights. The City removed
Johnson’s case to federal district court. Once in federal court, Johnson filed her
fourth amended complaint, which alleged that the City’s maintenance and
enforcement of the Sanctuary Policy deprived Rodney of his life and liberty as
guaranteed by the Fourteenth Amendment of the U.S. Constitution. She argued

       2
        It is unclear from Johnson’s pleading whether this restriction was in place at the time
of Rodney’s death.

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that, but for the Sanctuary Policy, the police officers that had previously
encountered Quintero-Perez would have accessed federal databases, discovered
the existence of a federal arrest warrant, arrested Quintero-Perez, and turned
him over to federal immigration officials. The fourth amended complaint also re-
alleged Johnson’s negligence and gross negligence claims.
       The City filed a motion to dismiss Johnson I on several grounds, including
Johnson’s lack of standing to bring the § 1983 suit on her own behalf. On
September 8, 2009, the district court dismissed Johnson I. The court first held
that the City’s motion to dismiss Johnson’s § 1983 claims brought in her
individual capacity was moot “as Plaintiff makes no such claims.” The court then
dismissed Johnson’s § 1983 claims brought in her capacity as executrix of
Rodney’s estate, holding that she had failed to allege a substantive due process
claim because “the municipality’s policy did not create the danger” to Rodney’s
life. It finally dismissed Johnson’s gross negligence claim as barred by sovereign
immunity and remanded her remaining state law negligence claim to Texas
state court.
       On September 21, 2009, Johnson filed this lawsuit against the City, the
HPD, and former Chief of Police Harold Hurtt, in his official capacity. Relevant
to this appeal, Johnson raised a 42 U.S.C. § 1983 claim alleging that the Current
HPD Policy violated (1) her right to freedom of expression under the First
Amendment and (2) her rights under 8 U.S.C. §§ 1373 and 16443 by prohibiting
her from contacting federal immigration authorities to request or provide

       3
        8 U.S.C. § 1373(a) provides:
       Notwithstanding any other provision of Federal, State, or local law, a Federal,
       State, or local government entity or official may not prohibit, or in any way
       restrict, any government entity or official from sending to, or receiving from, the
       Immigration and Naturalization Service information regarding the citizenship
       or immigration status, lawful or unlawful, of any individual.

       Section 1664 contains a similar provision protecting local government entities’ rights
to send and receive information to federal immigration authorities. 8 U.S.C. § 1644.

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information about the immigration status of persons she encounters as a police
officer. She also raised a claim under Article I, Section 8 of the Texas
Constitution alleging that the Current HPD Policy violated her right to freedom
of expression. The City subsequently filed a Rule 12(b)(6) motion to dismiss on
several grounds.
       On September 30, 2010, the district court issued an order granting the
City’s motion. Relevant to this appeal,4 the court held that Johnson’s § 1983 and
Texas constitutional claims were barred by Johnson I under principles of claim
preclusion (or res judicata). In doing so, the court held that (1) the parties in
Johnson I and this suit were identical because Johnson “controlled the prior
litigation and was in privity with a party in it”; (2) a court of competent
jurisdiction had dismissed Johnson I; (3) the other court’s determination in
Johnson I was final and on the merits; and (4) Johnson raised the same cause
of action in both Johnson I and the current suit. Johnson timely appealed.
                               STANDARD OF REVIEW
       We review a district court’s order granting a Rule 12(b)(6) motion to
dismiss de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007). We accept all well-pleaded facts as true, viewing them in the light most
favorable to the plaintiff. Id.
                                       DISCUSSION
       “Federal law determines the res judicata effect of a prior federal court
judgment.” Meza v. Gen. Battery Corp., 908 F.2d 1262, 1265 (5th Cir. 1990). This
court has held that:



       4
          The district court also (1) dismissed Johnson’s claims against the HPD because it is
not a legal entity, (2) dismissed Johnson’s writ of mandamus action against Hurtt because he
is not a federal officer, and (3) dismissed Johnson’s other claims against Hurtt in his official
capacity because the City was also named as a defendant for those claims. Johnson does not
appeal these rulings.

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       Claim preclusion bars the litigation of claims that either have been
       litigated or should have been raised in an earlier suit. The test for
       claim preclusion has four elements: (1) the parties in the subsequent
       action are identical to, or in privity with, the parties in the prior
       action; (2) the judgment in the prior case was rendered by a court of
       competent jurisdiction; (3) there has been a final judgment on the
       merits; and (4) the same claim or cause of action is involved in both
       suits. If a party can only win the suit by convincing the court that
       the prior judgment was in error, the second suit is barred. When all
       four elements are present, claim preclusion prohibits a litigant from
       asserting any claim or defense in the later action that was or could
       have been raised in support of or in opposition to the cause of action
       asserted in the prior action.
Duffie v. United States, 600 F.3d 362, 372 (5th Cir. 2010) (internal quotation
marks and citations omitted). Johnson argues that the district court erred in
concluding that res judicata bars the current lawsuit. For the reasons described
below, we hold that the district court erred in holding that the first and fourth
elements of the claim preclusion test were satisfied.5
       A.     Identity of the parties
       Johnson very briefly argues that the district court erred in applying claim
preclusion because “the parties are not technically identical.”
       As the district court correctly noted, “[t]o satisfy the identity element,
strict identity of parties is not necessary. A non-party defendant can assert res
judicata so long as it is in ‘privity’ with the named defendant.” Russell v.
SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th Cir. 1992). We have also
previously held that, for the purposes of claim preclusion, privity exists “where
the non-party controlled the prior litigation.” Meza, 908 F.2d at 1266. The
district court concluded Johnson controlled Johnson I and was in privity with a
party in it—namely, Johnson in her capacity as executor to Rodney’s estate.



       5
         Johnson concedes that the second and third elements of the claim preclusion test were
satisfied.

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       However, “the control principle cannot apply to a person who, as a party,
controls litigation in one capacity, and then is involved in subsequent litigation
in another capacity.” CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, 18A FEDERAL PRACTICE & PROCEDURE § 4451, at 384-85 (2d ed. 2002).
This is because, as a general rule, the identity requirement for claim preclusion
is not fulfilled when a person participates in two different suits in different
capacities. See Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir.
1990); Clark v. Amoco Prod. Co., 794 F.2d 967, 973 (5th Cir. 1986)(“Res judicata
does not apply to a situation . . . in which a party appears in one action in an
individual capacity and in a subsequent action in a representative capacity.”);6
RESTATEMENT (SECOND) OF JUDGMENTS § 36(2) (1982) (“A party appearing in an
action in one capacity, individual or representative, is not thereby bound by or
entitled to the benefits of the rules of res judicata in a subsequent action in
which he appears in another capacity.”).
       Johnson did not bring her § 1983 claims in Johnson I in her individual
capacity. Although she brought her state negligence claims individually, she
brought the Fourteenth Amendment claims as executrix of Rodney’s estate. By
contrast, she brings her current claims in her individual capacity. Under this




       6
           The district court seemed to rely on this court’s prior statement that “[i]f a party’s
interests are represented in a prior action, the identity of parties element is satisfied [and] .
. . [t]his satisfaction is not defeated by a change in the capacity in which an individual sues.”
United States ex rel. Laird v. Lockheed Martin Eng’g & Sci. Servs. Co., 336 F.3d 346, 357 (5th
Cir. 2003), abrogated on other grounds by Rockwell Int’l Corp. v. United States, 549 U.S. 457
(2007). This statement conflicts with our prior holding, but it is also dictum— Laird addressed
the preclusive effect of a plaintiff’s state wrongful death claim on his federal qui tam claim.
Id. at 349-50. The plaintiff in Laird did not change the capacity in which he was sued, this
court only addressed whether he was a party in interest in the qui tam claim. Id. at 358.
Further, Laird was not an en banc decision and therefore could not overrule this court’s prior
precedent. United States v. Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007) (“Absent an
en banc or intervening Supreme Court decision, one panel of this court may not overrule a
prior panel's decision.”).

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circuit’s precedent, the identity-of-the-parties element was not met. See Clark,
794 F.2d at 973.
      B.    Identity of the causes of action
      Johnson also asserts that Johnson I and this suit do not involve the same
cause of action because the facts of this case are unrelated to Johnson I, the two
cases do not form a convenient trial unit, and trying the cases together would not
have met the expectations of the parties. The City argues that this case raises
the same cause of action as Johnson I because both actions “revolve around the
circumstances surrounding [Rodney’s] death and the HPD policies which . . .
Johnson claims prohibit officers from determining a person’s immigration
status.”
      To determine whether two lawsuits involve the same claim or cause of
action, we have adopted the transactional test of the Restatement (Second) of
Judgments. Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir.
2004) (citing In re Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999)). Under
the Restatement’s test:
      What factual grouping constitutes a “transaction”, and what
      groupings constitute a “series”, are to be determined pragmatically,
      giving weight to such considerations as whether the facts are
      related in time, space, origin, or motivation, whether they form a
      convenient trial unit, and whether their treatment as a unit
      conforms to the parties’ expectations or business understanding or
      usage.
Restatement (Second) of Judgments, § 24(2). The critical issue is whether “the
two actions under consideration are based on the same nucleus of operative
facts.” In re Southmark, 163 F.3d at 934 (emphasis in original) (internal
quotation marks omitted). “In this inquiry, we look to the factual predicate of the
claims asserted, not the legal theories upon which the plaintiff relies.” Eubanks
v. FDIC, 977 F.2d 166, 171 (5th Cir. 1992).



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      Applying the transactional test, the district court concluded that Johnson
I and the current suit raised the same cause of action. It stated that “the factual
predicate in both suits relates to [Johnson’s] complaints of what she deems to be
flawed policies and/or practices of HPD that preclude her and other officers from
inquiring into a detained person’s immigration status.” The court noted that in
both suits, Johnson (1) described the circumstances of Rodney’s death; (2) alleged
that the HPD maintained a policy preventing officers from inquiring into a
detained person’s immigration status; and (3) alleged that HPD policy led to
Rodney’s death. It also held that Johnson’s two claims made a “convenient trial
unit” and that she “could have easily brought her claims alleged in the current
action in that suit as well.”
      We disagree. Johnson I and this lawsuit do not arise from the same
transaction and are not based on the same nucleus of operative facts. Although
Johnson alleges in her complaint for this case that the policies in the Current
HPD Policy led to Rodney’s death, Rodney’s death is not a factual predicate of
Johnson’s current claim. Johnson’s First Amendment claim, §§ 1373(a) and 1664
claims, and her claim under the Texas Constitution are wholly unrelated to
Rodney’s death. Therefore, Rodney’s death cannot be part of this case’s nucleus
of operative facts. See In re Southmark, 163 F.3d at 934.
      Further, although both lawsuits challenge the propriety of HPD policies,
each challenges a different policy. Johnson’s claim in Johnson I alleged that the
HPD maintained its Sanctuary Policy with indifference to officer safety and that
Rodney lost his life because of the Sanctuary Policy. Her current claim, however,
alleges that the Current HPD Policy, enacted after Rodney’s death, violates her
free speech rights and various federal statutes. The Current HPD Policy differs
from the Sanctuary Policy in that it allows HPD officers to check the “wanted”
status of detained individuals and to contact federal immigration authorities if
there is an “NCIC immigration hit.” The facts underlying the current claim are

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not “related in time, space, [or] origin” to the facts of Johnson I because the City
indisputably did not adopt the Current HPD Policy until after Rodney’s death.
      Finally, although the two actions make a convenient trial unit because it
would have been feasible for Johnson to have brought the current claim along
with Johnson I, the City would not have had a reasonable expectation that a
plaintiff bringing a § 1983 lawsuit based on one municipal policy would include
facial challenges to another, later-enacted, policy in the same suit. Because the
current lawsuit is based on a different nucleus of operative facts from Johnson
I, it does not raise the same cause of action for claim preclusion purposes.
      After our de novo review, we conclude that the current case and Johnson
I do not meet the first and fourth elements of this circuit’s test for claim
preclusion. It was error to dismiss Johnson’s current lawsuit as barred by res
judicata.
                                 CONCLUSION
      For the foregoing reasons, the district court’s order of dismissal is
REVERSED and the case is REMANDED for further proceedings.




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