1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0284p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

ERIC D. WHEELER, 

Plaintiff-Appellant, 

v. 

DAYTON POLICE DEPARTMENT; RYAN HALBURNT;

MICHAEL T. FULLER; CITY OF DAYTON, OHIO, 

Defendants-Appellees. 

┐

│

│

│

│

│

│

│

│

┘

No. 15-3484 

Appeal from the United States District Court 

for the Southern District of Ohio at Dayton. 

No. 3:13-cv-00300—Michael J. Newman, Magistrate Judge. 

Decided and Filed: December 4, 2015 

 Before: COLE, Chief Judge; SUTTON, Circuit Judge; BELL, District Judge.*

_________________ 

COUNSEL 

ON BRIEF: Charles E. McFarland, New Castle, Kentucky, for Appellant. John C. Musto, 

DAYTON LAW DEPARTMENT, Dayton, Ohio, for Appellees. 

_________________ 

OPINION

_________________ 

 SUTTON, Circuit Judge. In June 2012, Eric Wheeler filed a lawsuit alleging that two 

police officers violated his constitutional rights during a 2009 arrest. A district court dismissed 

his complaint, and we affirmed. Now Wheeler brings a new lawsuit stemming from the 

2009 arrest—namely a challenge to a bench warrant arrest in April 2012 for failing to appear on 

 *

The Honorable Robert Holmes Bell, United States District Judge for the Western District of Michigan, 

sitting by designation. 

>
No. 15-3484 Wheeler v. Dayton Police Dep’t, et al. Page 2 

one of the two charges that arose from the 2009 arrest—raising similar constitutional challenges. 

Similar allegations arising from the same underlying dispute lead to a similar result: The trial 

court rejected the second action on claim-preclusion grounds, and so do we. 

 On May 19, 2009, Dayton police officers Ryan Halburnt and Michael Fuller arrested 

Wheeler for possession of marijuana and cocaine. The arrest led to two charges: one for felony 

drug possession (for the cocaine) in Montgomery County Common Pleas Court and the other for 

misdemeanor drug possession (for the marijuana) in Dayton Municipal Court. The municipal 

court scheduled a trial for Wheeler’s misdemeanor charge, but he failed to appear. The court 

issued a bench warrant for his arrest. 

 A few months later, Wheeler pleaded guilty to the felony charge in the court of common 

pleas, and he received a two-year prison sentence. He served his time, but in April 2012, shortly 

after his release, Dayton police officers arrested him again—this time on the outstanding bench 

warrant. Wheeler posted bail, and the prosecutor dropped the misdemeanor charge two days 

after the arrest. 

 In June 2012, Wheeler filed his first federal lawsuit arising from the 2009 arrest. He filed 

the action against Halburnt, Fuller, and the Dayton Police Department and alleged that, during 

the 2009 arrest, the officers had violated his constitutional rights by conducting an illegal search 

and using excessive force. He also alleged that Halburnt had “planted” marijuana on him. 

R. 20-2 at 11. The district court dismissed Wheeler’s complaint, finding that the statute of 

limitations had run on his claims. We affirmed but on slightly different grounds. We noted that 

the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994), prevents plaintiffs 

from “recover[ing] damages for [an] allegedly unconstitutional conviction” unless the conviction 

has been reversed or otherwise invalidated. See Wheeler v. Dayton Police Dep’t, No. 12-4029, 

slip op. at 3 (6th Cir. Mar. 15, 2013). We held that, to the extent Wheeler challenged the 

constitutionality of his felony conviction, Heck barred his claims, while the statute of limitations 

blocked the remaining challenges. Id. at 3–4. 

 In 2013, Wheeler returned to federal court, filing an action against the same defendants 

(Halburnt, Fuller, and the Dayton Police Department) plus the City of Dayton itself. This time, 

instead of directly attacking the 2009 arrest, Wheeler alleged that his April 2012 arrest on the 
No. 15-3484 Wheeler v. Dayton Police Dep’t, et al. Page 3 

outstanding bench warrant was unconstitutional. His theory was that, because Halburnt and 

Fuller allegedly fabricated evidence and falsified the misdemeanor citation, the marijuana charge 

should never have been brought, which means the bench warrant should never have issued. A 

magistrate judge (who, with the parties’ consent, entered a final judgment in this case) found that 

claim preclusion barred Wheeler’s suit. He appealed. 

 Claim preclusion prevents parties from litigating matters that “should have been 

advanced in an earlier suit.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 

(1984). To establish claim preclusion, the defendants need to show (1) “a final judgment on the 

merits” in a prior action; (2) “a subsequent suit between the same parties or their privies”; (3) an 

issue in the second lawsuit that should have been raised in the first; and (4) that the claims in 

both lawsuits arise from the same transaction. Montana v. United States, 440 U.S. 147, 153 

(1979) (quotation omitted); Wilkins v. Jakeway, 183 F.3d 528, 532, 535 (6th Cir. 1999). 

 The defendants satisfy all four elements. One: Wheeler’s previous lawsuit ended with a 

judgment on the merits. We affirmed the district court’s decision to dismiss that action with 

prejudice, and dismissals with prejudice generally are judgments on the merits that bar plaintiffs 

from refiling their claims in the court that dismissed them. See Semtek Int’l Inc. v. Lockheed 

Martin Corp., 531 U.S. 497, 505–06 (2001). 

 Two: As Wheeler concedes, this lawsuit involves the same parties as the previous one. 

Although Wheeler did not name the City of Dayton as a defendant in his earlier lawsuit, he did 

sue the Dayton Police Department, which is a “subdivision” of the city itself. Tysinger v. Police 

Dep’t, 463 F.3d 569, 572 (6th Cir. 2006); see Ohio Rev. Code. § 715.05. 

 Three: Wheeler’s claims could have (and should have) been raised in the June 2012 

action. His 2012 arrest occurred two months before he filed his previous lawsuit, and his 

complaint in that action included the factual allegations that, Wheeler now claims, make the 

2012 arrest illegal. He stated, for example, that he “had no marijuana on him ever”; that he 

could not possibly have been hiding “3.0 grams of marijuana . . . in a front pocket”; and that 

Halburnt “planted the bag of marijuana.” R. 20-2 at 10–11. With these assertions already in his 

complaint, Wheeler should have taken the next step and alleged (based on these same facts) that 

the bench warrant leading to his 2012 arrest was invalid. 
No. 15-3484 Wheeler v. Dayton Police Dep’t, et al. Page 4 

 Four: Wheeler’s previous lawsuit and this one “arose out of the same transaction.” 

Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 580 (6th Cir. 2008) (quotation omitted). 

That transaction was Wheeler’s 2009 arrest, which gave rise to the allegations in his prior lawsuit 

(that the officers conducted an illegal search and used excessive force) and to the allegations in 

this one (that the officers planted evidence and falsified a citation). 

 Wheeler counters that claim preclusion does not apply for three reasons. He first 

maintains that there was no “final decision on the merits” in the previous lawsuit because, when 

we affirmed the district court’s judgment in that case, we relied on the statute of limitations and 

Heck v. Humphrey, 512 U.S. 477 (1994). When courts dismiss claims under Heck, they typically 

do so without prejudice, see Heck, 512 U.S. at 479; Callihan v. Schneider, 178 F.3d 800, 804 

(6th Cir. 1999), and dismissals without prejudice generally are not judgments on the merits for 

claim-preclusion purposes, see Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990). 

To the extent we relied on Heck in disposing of the previous action, Wheeler contends, we 

should not treat that lawsuit as a bar to this one. 

 Wheeler has a point, but he also has a problem. He may be right that Heck-barred claims 

usually are dismissed without prejudice, but that is not what the previous panel did. It affirmed 

the district court’s decision to dismiss all of Wheeler’s claims with prejudice, and it subsequently 

denied Wheeler’s petition for panel rehearing. See Wheeler, No. 12-4029, slip op. at 2–4, reh’g 

denied, No. 12-4029 (6th Cir. May 9, 2013). If Wheeler disagreed with the disposition of his 

earlier suit, his best bet—his only bet—was to file an en banc petition or to seek Supreme Court 

review. What he cannot do is ask us to convert a prior dismissal with prejudice into one without

prejudice, or request that we rewrite the previous panel’s order so that it no longer acts as a 

judgment on the merits. See Phillip v. United States, 229 F.3d 550, 552–53 (6th Cir. 2000); 

Hudson v. Hedge, 27 F.3d 274, 276 (7th Cir. 1994). And claim preclusion at all events, bitter 

though the medicine may be, applies to all final judgments, even those with which a party 

disagrees. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981). 

Perhaps making this medicine a little less bitter to swallow is this reality: Even if the 

prior panel had dismissed Wheeler’s Heck-barred claims without prejudice, claim preclusion still 

would apply. Recall that the earlier panel did not dismiss all of Wheeler’s claims on Heck
No. 15-3484 Wheeler v. Dayton Police Dep’t, et al. Page 5 

grounds; it found that the statute of limitations barred some of them. See Wheeler, No. 12-4029, 

slip op. at 3–4. One such claim (barred by the limitations period but not by Heck) was Wheeler’s 

excessive-force allegation. Id. at 3. And the prior panel’s disposition of that issue alone suffices 

to bar Wheeler’s claims in this case. We reached the merits of the excessive-force challenge, 

because dismissals on statute-of-limitations grounds are judgments on the merits, see Mitchell v. 

Chapman, 343 F.3d 811, 820 (6th Cir. 2003); Nathan v. Rowan, 651 F.2d 1223, 1226 (6th Cir. 

1981); Wheeler’s current allegations involve the same parties (Halburnt and Fuller) and the same 

transaction (the 2009 arrest) as the excessive-force claim; and the allegations should have been 

raised in a lawsuit involving that claim. Even if we put Wheeler’s Heck-barred claims to one 

side, in other words, claim preclusion still would block this lawsuit. 

Wheeler next argues that his two lawsuits do not involve the same claims, because his 

previous action related to the 2009 arrest while this one relates to the 2012 arrest. But claim 

preclusion does not operate at this level of generality. We look not at the specific injuries that 

Wheeler alleges (here, the second arrest), but at the underlying transaction that gave rise to those 

injuries. See J.Z.G. Res., Inc. v. Shelby Ins. Co., 84 F.3d 211, 215 (6th Cir. 1996). And the sole 

basis of Wheeler’s challenge to his 2012 arrest is that the officers acted illegally during the 

2009 arrest by planting evidence on him and falsifying a citation. That is why Halburnt and 

Fuller, not the officers who arrested Wheeler in 2012, are the defendants in this lawsuit, and that 

is why Wheeler should have raised these allegations in his earlier complaint. 

Wheeler, last of all, alleges that claim preclusion would violate “public policy” if applied 

here. But the Supreme Court has cautioned against making equitable exceptions to traditional 

claim-preclusion principles, see Moitie, 452 U.S. at 399–402, and Wheeler has not offered any 

sound reason for ignoring standard claim-preclusion rules here. Sure, he maintains that barring 

this lawsuit will infringe on his “right to petition the government.” Appellant’s Br. 19. But that 

right guarantees only Wheeler’s ability to file a lawsuit, see Borough of Duryea v. Guarnieri, 

131 S. Ct. 2488, 2494 (2011); it does not displace claim preclusion or other procedural bars once 

the case gets here. Nor do the public policies underlying § 1983 cut against claim preclusion in 

cases filed under that statute. See Castorr v. Brundage, 674 F.2d 531, 536–37 (6th Cir. 1982). 

Nor do we see how barring these claims will result in “manifest injustice.” Appellant’s Br. 22–
No. 15-3484 Wheeler v. Dayton Police Dep’t, et al. Page 6 

23. A “grave injustice” does not result when courts apply “accepted principles of [claim 

preclusion],” Moitie, 452 U.S. at 401, especially when Wheeler offers no good reason for failing 

to include these allegations in his earlier complaint. 

For these reasons, we affirm.