United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 22, 2016*

Decided September 26, 2016

Before

 MICHAEL S. KANNE, Circuit Judge

 ANN CLAIRE WILLIAMS, Circuit Judge

 DIANE S. SYKES, Circuit Judge

No. 16-1582

CARL REED and CONSTANCE 

HALIBURTON-REED,

Plaintiffs-Appellants,

v.

JOHN P. MACKEY, et al., 

 Defendants-Appellees.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 16 C 350

Matthew F. Kennelly,

Judge.

O R D E R

Carl Reed and Constance Haliburton-Reed appeal the dismissal of the second of 

two suits that they brought against Walgreens, Whole Foods, and Sears over 

mistreatment they alleged to have experienced while shopping at the defendants’ 

 

* Most of the appellees were not served with process in the district court and are not 

participating in this appeal. The one exception—Sears, Roebuck, and Co.—filed a brief 

in this court but did not participate in the case in the district court. We have 

unanimously agreed to decide the case without oral argument because the briefs and 

record adequately present the facts and legal arguments, and oral argument would not 

significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 16-1582 Page 2

stores. Because we agree with the district court that claim preclusion barred the suit, we 

affirm.

In 2014 the plaintiffs brought a federal suit under 42 U.S.C. § 1983, alleging race 

discrimination in connection with three incidents: in 2013 private-security personnel at 

a Walgreens falsely accused them of shoplifting, assaulted them, and detained them 

against their will; and Constance was similarly mistreated at a Whole Foods in 2011 and 

at a Sears in 2012. The district court dismissed the complaint for failure to state a claim

because the defendants were not state actors. See Reed v. Office of Cook County Gov’t, 

No. 14 C 8300 (N.D. Ill. filed Oct. 14, 2014). The plaintiffs did not appeal that judgment.

In 2015 the plaintiffs filed this second lawsuit, which they characterized as 

“a timely refiling of the issues raised and alleged” in the prior suit, though they added a 

new theory of liability under 42 U.S.C. § 1981. The district court dismissed this

complaint on the basis that it represented “at least in part, an improper attempt to refile 

a case on which judgment had been entered against plaintiffs.” The court did, however, 

invite the plaintiffs to amend their complaint if they could state a claim arising from 

events other than those addressed in the earlier lawsuit.

The plaintiffs timely amended their complaint. After some confusion ensued in 

the proceedings—a delay in the docketing of the amended complaint had prompted the 

court mistakenly to dismiss the suit for failure to prosecute—the court reconsidered its 

ruling but declined to vacate the judgment on the ground that claim preclusion barred 

the second suit.

On appeal the plaintiffs contend that the district court should have allowed their 

second suit to go forward because it is “an action for discrimination” whereas the first 

suit was “a tort action.” But claim preclusion prohibits not only “‘successive litigation of 

the very same claim’ by the same parties[,]” Whole Woman's Health v. Hellerstedt, 136 

S.Ct. 2292, 2305 (2016) (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)), 

but also litigation of claims that could have been raised during an earlier proceeding but

were not. See Bell v. Taylor, Nos. 15-2343, 15-3735, 15-3731, 2016 WL 3568139, at *4 

(7th Cir. July 1, 2016); Maher v. F.D.I.C., 441 F.3d 522, 526 (7th Cir. 2006). The plaintiffs 

cannot avoid the preclusive effect of their prior suit merely by advancing a new theory 

of liability based on the same events over which they’ve already sued the defendants. 

See Czarniecki v. City of Chicago, 633 F.3d 545, 552 (7th Cir. 2011). And although claim 

preclusion is an affirmative defense, see FED. R. CIV. P. 8(c), a district court may raise the 
No. 16-1582 Page 3

issue sua sponte when, as here, preclusion clearly applies. See Turley v. Gaetz, 625 F.3d 

1005 (7th Cir. 2010); Kratville v. Runyon, 90 F.3d 195, 197–98 (7th Cir. 1996).

AFFIRMED.