IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-20743

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.

United States Court of Appeals

Fifth Circuit

F I L E D

September 9, 2011

Lyle W. Cayce

Clerk

 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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FACTS

On September 21, 2006, HoustonPolice Officer Rodney Johnson (“Rodney”)

stopped Juan Leonardo Quintero-Perez for speeding. Rodney searched QuinteroPerez for weapons, found and confiscated a weapon, handcuffed Quintero-Perez,

and placed him in the back of his patrol car. Sometime later, while QuinteroPerez 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. Between 1999 and 1

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

 We take these facts from Johnson’s complaint because “[i]n reviewing the dismissal 1

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

It is unclear from Johnson’s pleading whether this restriction was in place at the time

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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 realleged 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 1644 by prohibiting 3

her from contacting federal immigration authorities to request or provide

 8 U.S.C. § 1373(a) provides: 3

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, the court held that Johnson’s § 1983 and 4

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:

 The district court also (1) dismissed Johnson’s claims against the HPD because it is 4

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.

Johnson concedes thatthe second and third elements of the claim preclusion test were 5

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

The district court seemed to rely on this court’s prior statement that “[i]f a party’s

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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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