*

The appellees were not served with process in the district court and are not

participating in this appeal.  After examining the appellant’s brief and the record, we have

concluded that oral argument is unnecessary.  Thus, the appeal is submitted on the

appellant’s brief and the record.  See FED. R. APP. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 21, 2008*

Decided September 25, 2008

Before

     RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 08‐1960

FONDA J. KILLEBREW,

           Plaintiff‐Appellant,

v.

ST. VINCENT HEALTH, INC. and     

ST. JOSEPH HOSPITAL & HEALTH

CENTER, INC.,

Defendants‐Appellees.

Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:08‐cv‐255‐LJM‐WTL

Larry J. McKinney,

Judge.

O R D E R

Fonda Killebrew was fired from her job as a housekeeper at a Kokomo, Indiana,

hospital operated by St. Vincent Health, Inc.  She sued the hospital and St. Vincent claiming,

as the district court understands her complaint, that at the hospital she was “subjected to

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1960 Page 2

discrimination, a hostile work environment and retaliation based on her race.”  See 42 U.S.C.

§§ 1981, 2000e‐2.  Killebrew told the court that she could not afford to pay the filing fee, so

the court allowed her to proceed in forma pauperis.  It then reviewed her complaint prior to

service, see 28 U.S.C. § 1915(e)(2)(b), and concluded that the action is barred by the doctrine

of claim preclusion.  According to the court Killebrew’s claims “were or could have been

asserted” in a pair of consolidated race‐discrimination suits she filed in 2003 and 2004.  See

Killebrew v. St. Joseph Hosp. & Health Ctr., Inc., 1:04‐cv‐48‐LJM‐WTL (S.D. Ind. filed Jan. 8,

2004); Killebrew v. St. Vincent Health, 1:03‐cv‐1497‐DFH‐VSS (S.D. Ind. filed Oct. 10, 2003).

Those actions were dismissed with prejudice for failure to prosecute, see Killebrew v. St.

Vincent Health, 1:03‐cv‐1497‐DFH‐VSS (S.D. Ind. Sept. 27, 2004) (unpublished order); so, the

court’s reasoning goes, Killebrew already had her bite at the apple and is not entitled to

another.  The court thus dismissed Killebrew’s complaint for failure to state a claim.  Our

review is de novo.  See DeWalt v. Carter, 224 F.3d 607, 611‐12 (7th Cir. 2000).

We accept, for the moment, the district court’s generous reading of Killebrew’s

complaint, but we do not agree that the doctrine of claim preclusion would bar the action as

framed by the district court.  Claim preclusion is an affirmative defense that the defendant

generally must raise or risk waiving.  FED. R. CIV. P. 8(c); Curtis v. Timberlake, 436 F.3d 709,

711 (7th Cir. 2005); Rizzo v. Sheahan, 266 F.3d 705, 714 (7th Cir. 2001).  A district court, upon

reviewing a complaint before service, has discretion to invoke claim preclusion to dismiss

the case, but only if the defense “is so plain from the language of the complaint and other

documents in the district court’s files that it renders the suit frivolous.”  Gleash v. Yuswak,

308 F.3d 758, 760 (7th Cir. 2002).  And claim preclusion bars an action only if there was a

final judgment on the merits in an earlier case and both the parties and claims in the two

lawsuits are the same.  See Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 822 (7th Cir. 2006).

Two of these criteria are met:  the dismissal of Killebrew’s prior consolidated suits

was a judgment on the merits, see FED. R. CIV. P. 41(b); In re Bagdade, 334 F.3d 568, 573 (7th

Cir. 2003), and the parties in both cases are the same.  But we see nothing in the complaint

in this new suit which suggests that the claims Killebrew attempts to raise now are

necessarily the same as those she raised previously.  Claims raised in separate lawsuits are

the same for purposes of claim preclusion if they are rooted in the same factual allegations.

See Tartt, 453 F.3d at 822.  In her prior consolidated actions, Killebrew alleged that in 2003

the hospital and St. Vincent discriminated against her because she is black and then

retaliated when she filed a charge of discrimination with the Equal Employment

Opportunity Commission.  Now she alleges that she was fired, and any claim arising from

her termination could not possibly be the “same” for purposes of claim preclusion because

she was still employed at the hospital in 2003.  Indeed, Killebrew elaborates in her brief that

she was fired in March 2006, more than two years after her prior suits were filed.  See Smith
No. 08‐1960 Page 3

v. Potter, 513 F.3d 781, 783 (7th Cir. 2008) (noting that claim preclusion does not bar suit

based on claims that arise after a prior suit was filed).  Furthermore, she again alleges that

the defendants subjected her to a hostile work environment, and it is not evident from the

face of the complaint that this allegation relates to events that were, or even could have

been, the subject of the consolidated suits.  To the contrary, it would be possible for

Killebrew to prove, consistent with the allegations in her complaint, that the defendants

treated her worse in the two years leading up to her discharge and that this treatment (alone

or in combination with treatment she suffered before 2003) created a hostile working

environment.   See id.  (“The filing of a suit does not entitle the defendant to continue or

repeat the unlawful conduct with immunity from further suit.”).

We, however, can affirm the district court’s judgment for any reason supported in

the record, and we agree that this case should be dismissed, but on a different basis.  See

Vargas‐Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974 (7th Cir. 2001).  The district

court read Killebrew’s complaint broadly, but, in our view, its interpretation went too far.

As we read her new complaint, Killebrew is not claiming that her termination violated

federal law.  Her allegations are incoherent and rambling—she lists “[b]uilidng brought

from KKK unsafe working conditions not following my doctor orders” as one of her claims.

Although she does appear to allege that she was harassed at work and then fired, she does

not assert that race or any other protected ground was the motivating factor behind the ill‐

treatment.  Killebrew makes only one passing reference to “racism” in her complaint and

does not even mention race in her brief to this court, instead insisting that she was unfairly

fired for “quitting without notice” and that she received poor representation from her

attorney. Killebrew is proceeding pro se, so we construe her filings liberally, see Kaba v.

Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006), but her complaint does not even hint at a

plausible right to relief and thus fails to satisfy the lenient notice‐pleading requirement of

Federal Rule of Civil Procedure 8(a), see Bell Atl. Corp. v. Twombly, 127 S .Ct.1955, 1964‐65

(2007); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007), and borders

on frivolousness, see Neitzke v. Williams, 490 U.S. 319, 325 (1989) (noting that a complaint is

frivolous when it “lacks an arguable basis either in law or in fact” ); Edwards v. Snyder, 478

F.3d 827, 830 (7th Cir. 2007).  Therefore, the district court properly dismissed it.   See 28

U.S.C. § 1915(e)(2)(B)(i), (ii).

AFFIRMED.