### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 9 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-20743 Document: 00511598591 Page: 1 Date Filed: 09/09/2011No. 10-20743 FACTS O n S e p t ember 21, 2006, Housto n Polic e O f f ic er Ro dn ey John s o n (“Ro dn ey”) stopped Juan Leonardo Quintero-Perez for s p e e din g
. Ro dn ey s e arch e d QuinteroPerez for weapons, found and confiscated a weapon, handcuffed Quintero-Perez, and placed him in the b a c k o f h i s 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 c a p i t a l m urder 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 U ni t e d States that year. Between 1999 and 1 2006, Houston Poli c e 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 commu n i cating with the federal Department of Homeland Security and pertinent fe deral 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 ch anged its policy to

a l l o w officers to check the “wanted” status of anyone legally detained and t o require officers to check the “wanted” status of a ny o n e 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

Wet ak e t hes e fac tsfromJohnso n’scom plai nt beca use“[i] n review ing the dis mi ss al 1 ord er, [this court] tak e[s ] the we ll- ple d fac tual allegations of the com plai nt as tru e and view [s ] them in the light mo st favor able to the plai ntif f. ” Lane v. Ha ll ibur ton , 529 F.3d 548, 557 (5t h Cir. 200 8). 2 Case: 10-20743 Document: 00511598591 Page: 2 Date Filed: 09/09/2011No. 10-20743

i s the subject of an outstanding warrant or wanted for another reaso n . Th e Current HPD Policy prohibits officers from contacting feder a l immigration officials unless the officer receiv e s a n “NCIC immigration hit.” An “NCIC immigration hit” indicates that th e p erson 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 “dru g trafficking, firearms trafficking, or se ri o u s 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 f e d e r a l 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 stat e c o u rt (“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, wh i c h alleged that the City’s maintenance and enforcement of the Sanctuary Policy deprive d R o dn e y of his life and liberty as guaranteed by the Fourteenth Amendment of the U.S. Constitution. She argued

It is uncle ar fr om Johns on’s ple adin g wh ethe r this res tri cti on wa s in plac e at the tim e 2 of Rodne y’sd eath

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that, but for the Sanctuary Policy, the police offi c e r s 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 cap a c i ty 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, J o h n s on 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 e x p r e s sion 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 o r provide

8 U. S. C. § 1 373( a) pr ovide s: 3 Not wi ths tanding any othe r pr ovis ion of Federal , Sta te, or local law , a Fede ral, Sta te, or l o cal governm ent enti ty or off icia l may not pr ohibit , or in any way res tri ct, any governm ent enti ty or off icial fr om se ndin g to, or rec eiving fr om , the Imm igrat ion and Naturali zatio n Service info rm atio n regar ding the citizens hip or im mi grati on st atus , law ful or unlaw ful, of any individual

. Sec tio n 1664 cont ains a sim ilarprovis ion pr ote cti ng local govern me nt enti tie s’rights to se nd and rec eive info rm atio n t o f ede ral imm igrat ion autho rities

. 8 U .S .C. § 1644. 4 Case: 10-20743 Document: 00511598591 Page: 4 Date Filed: 09/09/2011No. 10-20743

information about the immigration status of persons she encounters as a police officer

. S h e a l so 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 o r d er 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 , th e c o u rt held that (1) the parties in Johnson I and this suit were id e n t i c a l because Johnson “controlled the prior litigation and was in privity with a party i n it”; (2) a court of competent jurisdiction had dismissed Johnson I ; (3 ) th e other court’s determination in Johnson I w a s f

i nal 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 o rder 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 th e r es 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 dist ric t court als o (1) dis mi ss ed John so n’sclaim s agains t the H PD bec aus e it is 4 not a legal enti ty, (2) dis mi ss ed Johns on’s writ of man dam us act ion agains t Hu rtt beca use he is not a fed eraloff

icer , and ( 3) di sm iss ed John so n’sotherclaim s agains t Hu rttinhi s off icia l cap acit y becaus e the City w as als o name d as a def enda nt fo r thos e claim s. Johnso n does not app eal thes e 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 f

our elements: (1) the parties in the subsequent action are i d e n tical 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) th e r e has been a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. If a p a rty c a n o nly 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 , 6 0 0 F.3d 362, 372 (5th Cir. 2010) (internal quotation marks and citations omitted)

. J o h n s o n 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 correctl y n o t ed, “[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.” R u s s e ll v. SunAmerica Sec., I

nc. , 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 litig a tion.” 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.

Johns on conc ede s that the se cond and thir d elem ents of the clai m pr eclu sio n tes t we re 5 sat isf ied

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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.” C H AR L E S ALA N WR I G H T , AR T H U R R. M I L L E R & E D WAR D H. C O O P E R , 18A F E D E RAL PRA C T I C E & P R O C E D U R E § 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 d o e s not apply to a situation

. . . in which a party appears in one action in a n individual capacity and in a subsequent action in a representative capacity.”); 6 R E S TAT E M E N T (S E C O N D ) O F J U D G M E N T S § 36(2) (1982) (“A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the b e nefits 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 Johnso n I in her individual capacity. Although she brought her state negligence cl a i m s individually, she brought the Fourteenth Amendment claims as executrix of Rodney’s estate. By contrast, she bring s h e r c urrent claims in her individual capacity. Under this

T h e dis tri ct court se em ed to rely on this court’s prior st atem ent that “[i]f a p a r t y’ s 6 inte res tsare rep res ente d in a prio r act ion, the identity of part ieselem ent is sat isf ied[ and]

.

. . [t]his sat isf

act ion is not def

eate d by a change in the capaci ty in wh ich an individual sue s. ” Uni ted States ex rel

. Lai rd v. Lockhe ed Ma rtin Eng’g & Sci

. Serv s. Co. , 336 F.3d 346, 357 (5t h Cir. 2003), abrogatedon other grounds by Rock we ll Int’l Corp

. v. Uni ted States , 549 U. S. 457 (200 7). This st atem ent conf lict s wi th our prior holding, but it is als o dic tum

— Lai rd addres se d the pr eclu sive eff

ect of a plai ntif

f’ s st ate wr ongful d eath clai m on his fed eral qui tam clai m. Id. at 349- 50. The plai ntif f in Lai rd did not change the cap acit y in wh ich h e w a s s u e d , t h is court only addres se d wh ethe r he wa s a party in inte res t in the qui tam clai m. Id. at 358. Further, Lai rd wa s not an en banc dec isi on and ther efo re coul d not overr ule this court’s prior pr ece dent

. Uni ted States v. Rodriguez -Ja im es , 481 F.3d283, 288 (5t h Cir. 2007) (“Abse nt an en ban c o r inte rvenin g Sup rem e Court dec isi on, one pane l of this court may not overr ule a prior pane l's d ecis ion. ”)

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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.” T o determine whether two lawsuits involve the same claim or c a u s e o f action, we have adopted the transac t ional 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. 199 9)). Under the Restatement’s test: What f a c t u al 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 m o tivation, whether they form a convenient trial unit, and wh e th e r 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 o n th e s a m e nucleus of operative facts .” In re Southma rk , 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. 199 2).

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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 b oth s uit s , J ohn s o n ( 1 ) described the circumstances of Rodney’s death; (2) alleged that the HPD maintained a policy preventing offi c e r s 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 th i s l awsuit 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 th e p o li c i e s 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 u nrelated 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 hav e been feasible for Johnson to have brought the current claim along wi th J o hnson 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 d o n o t m eet the first and fourth elements of this circuit’s test for claim preclusion. It was error to dism i s s J o h nson’s current lawsuit as barred by res judicata

. CONCLUSION For the foregoing reasons, the district court ’ s o r d e r of dismissal is REVERSED and the case is REMANDED for further proceedings.

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