PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TYRONE ANDREWS,
Plaintiff-Appellant,

v.
                                                                     No. 98-6329
J. M. DAW, in his individual
capacity,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CA-97-602-5-BO)

Argued: December 1, 1999

Decided: January 27, 2000

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Michael and Judge King joined.

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COUNSEL

ARGUED: Jonathan H. Siegelbaum, Appellate Litigation Clinic,
UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Reuben Franklin Young, Assistant Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee. ON BRIEF: Neal L. Walters,
Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL
OF LAW, Charlottesville, Virginia, for Appellant. Isaac T. Avery, III,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Tyrone Andrews appeals the district court's Rule 12(b)(6) dis-
missal of his 42 U.S.C.A. § 1983 (West Supp. 1999) lawsuit against
North Carolina Highway Patrol Trooper J.M. Daw in Daw's individ-
ual capacity. The district court dismissed Andrews's suit on the
ground of res judicata, reasoning that it was barred by the district
court's previous dismissal of a nearly identical suit brought by
Andrews against Daw in Daw's official capacity. We disagree with
the district court's decision and hold that a government employee in
his official capacity is not in privity with himself in his individual
capacity for purposes of res judicata. Accordingly, we reverse the dis-
trict court's dismissal of Andrews's suit and remand for further pro-
ceedings.

I.

On August 5, 1995, Tyrone Andrews was driving on Interstate 40
in Wake County, North Carolina. J.M. Daw, a trooper with the North
Carolina Highway Patrol, ordered Andrews to pull over. According
to Andrews, Daw violated his rights under the United States Constitu-
tion and state law by unlawfully chasing, arresting, assaulting, and
inflicting mental distress upon him before and during this traffic stop.
On July 2, 1996, Andrews filed a complaint asserting these allega-
tions under 42 U.S.C.A. § 1983 (West Supp. 1999) in the United
States District Court for the Eastern District of North Carolina. The
complaint named as defendants J.M. Daw, Trooper, North Carolina
Highway Patrol; Edward W. Horton, Commander, North Carolina
Highway Patrol; and the State of North Carolina.

On October 18, 1996, the district court dismissed the suit against
North Carolina on the basis of Eleventh Amendment immunity,

                    2
granted summary judgment to Horton on the ground that Andrews
failed to proffer any evidence that Horton was involved in the alleged
deprivation of Andrews's constitutional rights, and granted summary
judgment to Daw on the ground of qualified immunity. On appeal,
this Court affirmed the district court's dismissal of the claims against
Horton and Daw on different grounds, concluding that the appropriate
remedy with regard to Horton and Daw was dismissal of the suit pur-
suant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We
reasoned that Horton was sued in his official capacity and was not
subject to suit under § 1983 because Andrews failed to allege that
Horton was personally involved in the alleged unlawful conduct, and
Daw was sued in his official capacity and was shielded from a suit
for money damages by the Eleventh Amendment. See Andrews v.
Daw, 117 F.3d 1413 (4th Cir. 1997) (unpublished).

On August 11, 1997, Andrews filed a second § 1983 complaint in
the same federal district court, naming as the sole defendant Daw in
his individual capacity. This second suit was based upon the same
factual circumstances as the first suit and asserted essentially identical
claims. On September 24, 1997, Daw moved to dismiss the suit pur-
suant to Rule 12(b)(6). On February 19, 1998, the district court
granted Daw's 12(b)(6) motion to dismiss on the ground that the doc-
trine of res judicata barred Andrews's suit because his previous suit
against Daw in Daw's official capacity had been dismissed. On
March 3, 1998, Andrews filed a timely notice of appeal.

II.

On appeal, Andrews principally argues that the district court's Rule
12(b)(6) dismissal of his complaint on the ground of res judicata was
erroneous because a prior lawsuit against an individual in his official
capacity does not bar later relitigation of claims against that same
individual in his personal capacity.1 In support of this argument,
_________________________________________________________________

1 Andrews also argues that Rule 12(b)(6) dismissal of his lawsuit on the
basis of res judicata was procedurally inappropriate because the defense
of res judicata was not clearly established by the affirmative allegations
of the complaint. We disagree. This Court has previously upheld the
assertion of res judicata in a motion to dismiss. See Thomas v. Consoli-

                     3
Andrews cites several cases in which courts have held that govern-
ment employees in their individual capacity are not in privity with the
government for purposes of res judicata. Andrews contends that
because a suit against a government official in his official capacity is
in reality nothing more than a suit against the government, a govern-
ment official in his individual capacity is not in privity with himself
in his official capacity for purposes of res judicata. Because this case
is on appeal from a Rule 12(b)(6) dismissal, our review is de novo.
See Mylan Lab., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).

Under the doctrine of res judicata, "a final judgment on the merits
bars further claims by parties or their privies based on the same cause
of action." Montana v. United States, 440 U.S. 147, 153 (1979).
Because Andrews brought his first suit against Daw in federal court,
federal rules of res judicata apply. See Shoup v. Bell & Howell Co.,
872 F.2d 1178, 1179 (4th Cir. 1989). "To establish a res judicata
defense, a party must establish: (1) a final judgment on the merits in
a prior suit, (2) an identity of the cause of action in both the earlier
and the later suit, and (3) an identity of parties or their privies in the
two suits." Jones v. SEC, 115 F.3d 1173, 1178 (4th Cir. 1997) (inter-
nal quotation marks omitted), cert. denied, 118 S. Ct. 1512 (1998).
The only issue the parties dispute in this case is the third prong of this
test -- whether Daw in his official capacity is in privity with himself
in his individual capacity.2 In addressing this issue, we keep in mind
_________________________________________________________________

dation Coal Co., 380 F.2d 69, 75 (4th Cir. 1967). Although an affirma-
tive defense such as res judicata may be raised under Rule 12(b)(6) "only
if it clearly appears on the face of the complaint," Richmond, Fredericks-
burg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), when
entertaining a motion to dismiss on the ground of res judicata, a court
may take judicial notice of facts from a prior judicial proceeding when
the res judicata defense raises no disputed issue of fact, see Day v.
Moscow, 955 F.2d 807, 811 (2d Cir. 1992); Scott v. Kuhlmann, 746 F.2d
1377, 1378 (9th Cir. 1984); Briggs v. Newberry County Sch. Dist., 838
F. Supp. 232, 234 (D.S.C. 1992), aff'd, 989 F.2d 491 (4th Cir. 1993)
(unpublished). Because Andrews does not dispute the factual accuracy of
the record of his previous suit against Daw in Daw's official capacity,
the district court did not err in taking judicial notice of this prior case.
2 Andrews does not contest that the dismissal of his prior suit on Elev-
enth Amendment immunity grounds is a final judgment on the merits.

                    4
that "the privity requirement assumes that the person in privity is so
identified in interest with a party to former litigation that he repre-
sents precisely the same legal right in respect to the subject matter
involved." Id. at 1180 (internal quotation marks omitted) (emphasis
added).

Andrews contends that the doctrine of res judicata is inapplicable
to this lawsuit because a government official in his official capacity
is not in privity with himself in his personal capacity. As an initial
matter, we note that the rule of differing capacities in the context of
res judicata provides that "[a] party appearing in an action in one
capacity, individual or representative, is not thereby bound by or enti-
tled to the benefits of the rules of res judicata in a subsequent action
in which he appears in another capacity." Restatement (Second) of
Judgments § 36(2) (1982). The rationale for this rule is that "in
appearing as a representative of another, a person should be free to
take positions inconsistent with those he might assert in litigation on
his own behalf or on behalf of others he represents in some other fidu-
ciary capacity." Id. § 36 cmt. a. Thus, at first blush, application of the
rule of differing capacities counsels against a conclusion that a gov-
ernment employee in his official capacity is in privity with himself in
his individual capacity.

Application of the differing-capacities rule to a suit filed against a
government official in his individual capacity following dismissal of
_________________________________________________________________
Rule 41(b) of the Federal Rules of Civil Procedure provides that unless
the court otherwise specifies, "a dismissal . . . other than a dismissal for
lack of jurisdiction . . . operates as an adjudication upon the merits." Fed.
R. Civ. P. 41(b). Our cases have been unclear on whether a dismissal on
Eleventh Amendment immunity grounds is a dismissal for failure to state
a claim under Rule 12(b)(6) or a dismissal for lack of subject matter
jurisdiction under Rule 12(b)(1). Compare Biggs v. Meadows, 66 F.3d
56, 58-59 (4th Cir. 1995) (addressing dismissal on Eleventh Amendment
grounds as dismissal for failure to state claim), with Abril v. Virginia,
145 F.3d 182, 184 (4th Cir. 1998) (addressing dismissal on Eleventh
Amendment grounds as dismissal for lack of subject matter jurisdiction),
and Republic of Paraguay v. Allen, 134 F.3d 622, 626 (4th Cir.) (same),
cert. denied, 118 S. Ct. 1352 (1998). For this case, we assume without
deciding that a dismissal on Eleventh Amendment immunity grounds is
a final judgment on the merits for purposes of res judicata.

                     5
a similar suit filed against that same official in his official capacity
is further supported by the difference between official-capacity law-
suits and personal-capacity lawsuits. While "[p]ersonal capacity suits
seek to impose personal liability upon a government official for
actions he takes under color of state law," official-capacity suits "gen-
erally represent only another way of pleading an action against an
entity of which an officer is an agent" and in essence are "suit[s]
against the entity." Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(internal quotation marks omitted). Because the real party in interest
in an official-capacity suit is the entity, a plaintiff can only recover
damages from the entity itself, in contrast to a personal-capacity suit,
in which a plaintiff can seek a judgment against the official's personal
assets. See id. at 166. Furthermore, different legal theories of liability
are required for the plaintiff, and different defenses are available to
the defendant, in a personal-capacity action than in an official-
capacity action. See id. at 166-67. These differences indicate that a
government official in his official capacity does not represent "pre-
cisely the same legal right" as he does in his individual capacity.

The distinction between a suit against a government employee in
his official capacity and a suit against that same official in his individ-
ual capacity is readily apparent in this case. This Court affirmed the
district court's dismissal of Andrews's first suit against Daw in Daw's
official capacity on Eleventh Amendment immunity grounds without
addressing the issue of Daw's personal liability under § 1983. This
disposition makes it clear that Daw merely served as a representative
of the government when sued in his official capacity and did not rep-
resent "precisely the same legal right" as he did when sued in his indi-
vidual capacity. Accordingly, we hold that a government official in
his official capacity is not in privity with himself in his individual
capacity for purposes of res judicata. In slightly different contexts,
other circuits have reached similar conclusions. See Headley v.
Bacon, 828 F.2d 1272, 1279-80 (8th Cir. 1987) (applying federal law
in reversing district court's grant of summary judgment to defendant
officials sued in both official and personal capacities under § 1983
following suit against city under Title VII and also noting that "litiga-
tion involving officials in their official capacity does not preclude
relitigation in their personal capacity"); cf. Roy v. City of Augusta,
712 F.2d 1517, 1521-22 (1st Cir. 1983) (applying Maine law in hold-
ing that res judicata did not bar suit against individuals sued in their

                     6
personal capacities who appeared in earlier action in their official
capacities); Unimex, Inc. v. United States Dep't of Hous. & Urban
Dev., 594 F.2d 1060, 1061 n.3 (5th Cir. 1979) (per curiam) (noting
that suit against an official sued in his official capacity will not oper-
ate as collateral estoppel in a subsequent suit against the official sued
in his personal capacity); Restatement (Second) of Judgments § 36
cmt. e (explaining that, under the rule of § 36, the determination in
an action against a public official sued in his official capacity, while
binding on the government, is not binding on the official personally).
Because the district court erred in finding such privity and in dismiss-

ing Andrews's suit on the ground of res judicata, we reverse the dis-
trict court's dismissal of Andrews's suit and remand for further
proceedings.3

III.

In sum, we hold that a government employee in his official capac-
ity is not in privity with himself in his individual capacity for pur-
poses of res judicata, and, therefore, the district court erred in
dismissing Andrews's suit on that ground. Accordingly, we reverse

the district court's dismissal of Andrews's suit and remand for further
proceedings.

REVERSED AND REMANDED
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3 In the alternative, Daw urges us to affirm the district court's dismissal
of Andrews's complaint on the ground of qualified immunity. This Court
"may affirm the dismissal by the district court on the basis of any ground
supported by the record even if it is not the basis relied upon by the dis-
trict court." Ostrzenski v. Siegel, 177 F.3d 245, 253 (4th Cir. 1999).
Because the district court has yet to address this claim, we decline Daw's
invitation to affirm the district court's dismissal of Andrews's complaint
on the ground of qualified immunity. Cf. McVey v. Stacy, 157 F.3d 271,
279 (4th Cir. 1998) (affirming district court's ruling deferring qualified-
immunity issue because record had not been adequately developed at
motion-to-dismiss stage).

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