*

This successive appeal has been submitted to the panel that decided the original

appeal. See Operating Procedure 6(b). After examining the briefs and the record, we have

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

the record. See Fed. R.App. P. 34(a)(2).

 

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 22, 2007*

Decided September 14, 2007

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. KENNETH F. RIPPLE, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 06-1646

CYNTHIA EASLEY, Individually

and as Administrator of the Estate of

CHRISTOPHER B. EASLEY,

Plaintiff-Appellant,

v.

SERGEANT. MICHAEL B. REUSS, 

Defendant-Appellee.

Appeal from the United States

District Court for the Eastern District

of Wisconsin

No. 02 C 1065

Thomas J. Curran,

Judge

O R D E R

In 2004 we affirmed the denial of Cynthia Easley’s motion to vacate the grant

of summary judgment in a suit she brought under 42 U.S.C. § 1983 against several

Wisconsin police officers and municipalities after one of the officers shot and killed

her son Christopher. See Easley v. Kirmsee, 382 F.3d 693 (7th Cir. 2004). In the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 06-1646 Page 2

present suit, also brought under § 1983, Easley has sued Sergeant Michael Reuss,

the highest-ranking officer at the scene. The district court granted summary

judgment for Reuss. Because both claim and issue preclusion bar Easley’s present

suit, we affirm.

Reuss was not in the immediate vicinity when Christopher was shot and

killed in October 2006. Rather, Reuss was called in as backup when an officer, on

patrol in a residential neighborhood, spotted Christopher bleeding and wielding a

knife and determined that he matched the description in an area-wide alert of an

armed, emotionally-disturbed, and intoxicated individual that was roaming in the

area that night. After Christopher refused to heed the officer’s commands to put

down the knife, Reuss asked the officer whether he had a non-lethal weapon in his

possession, but he did not. Two more officers then arrived, and the four spread out

to secure the area before pursuing further action against Christopher. As they were

doing so, several other officers from different townships also arrived on the scene. 

Suddenly, Christopher darted in a different direction. While Reuss was therefore

repositioning his squad car, he heard over his radio that Christopher had been shot

by one of the officers from a different township. 

Easley brought her first suit, (“Easley I”), in September 2001 against the

shooting officer, alleging he used excessive force, against the officers who were in

the immediate vicinity, alleging they failed to intervene, and against the townships

they represented—including the City of Lake Geneva which is Reuss’

employer—alleging that they failed to properly train the officers. Reuss, though,

was not a party to this suit. The district court granted the defendants’ motion for

summary judgment after Easley failed to respond. The court found that the use of

force was reasonable and that the officers were adequately trained. See Easley v.

Kirmsee, No. 01-C-938 (E.D. Wis. Nov. 26, 2006). Easley did not appeal that ruling,

but instead filed a Rule 60(b) motion to reconsider. The court denied it, and we

upheld that denial on appeal. 

In the meantime, in October 2002, Easley initiated the instant lawsuit

against Reuss in both his official and individual capacities. Easley alleged that

Reuss—as the highest ranking officer at the scene—violated Christopher’s Fourth

and Fourteenth Amendment rights by failing to control his fellow officers and order

them to procure less than lethal force before attempting to apprehend Christopher. 

The district court granted Reuss’s motion for summary judgment, finding that the

doctrine of res judicata (claim preclusion) barred the claim against him in his

official capacity, and that Reuss was entitled to qualified immunity on the claim

against him in his individual capacity. Reuss appealed. 

 We first turn to the district court’s application of claim preclusion (res

judicata) to Easley’s claims against Reuss in his official capacity. Claim preclusion
No. 06-1646 Page 3

bars not only issues actually decided in a prior suit, but also those that could have

been raised. Highway J Citizens Group v. United States Dep’t of Transp., 456 F.3d

734, 741 (7th Cir. 2006). It requires (1) a prior final judgment on the merits; (2) the

same claim; and (3) the same parties or their privies. Tartt v. Nw. Cmty. Hosp., 453

F.3d 817, 822 (7th Cir. 2006). Easley argues that none of the three requirements

for claim preclusion are satisfied here. 

She first contends that Easley I was not decided on its merits, but rather on

“procedural irregularities.” This characterization is not supported by the district

court’s decision in that case. It is true that Easley failed to respond to the

defendants’ motion for summary judgment, but the district court emphasized that

“summary judgment cannot be granted merely because the opponent of the motion

fails to respond.” The district court thus independently reviewed the defendants’

proposed facts and arguments and concluded that “the force used against

Christopher was reasonable.” In any event, even a dismissal for failure to prosecute

or otherwise comply with the rules of civil procedure (other than dismissal for lack

of jurisdiction) is an adjudication on the merits. See Fed. R. Civ. P. 41(b). 

Easley then insists that she is not advancing the same claims in her new

lawsuit because the legal theories she is asserting are different. But Easley

misapprehends the concept of a claim: for res judicata purposes “a claim is not an

argument or a ground but the events claimed to give rise to a right to a legal

remedy.” Bethesda Lutheran Homes & Servs., Inc. v. Born, 238 F.3d 853, 857 (7th

Cir. 2001). It is clear from our review of Easley’s complaints that they both arise

out of the same set of facts. Cloaking the facts in new legal theories does not

establish a new claim. See Cannon v. Loyola Univ. of Chicago, 784 F.2d 777, 780

(7th Cir. 1986). 

Easley finally argues that claim preclusion does not apply because Reuss was

not a party to her previous suit. But “res judicata bars subsequent suits against

those who were not party to a prior suit if their interests are closely related to those

who were.” Tartt v. Northwestern Comm. Hosp., 453 F.3d 817, 822 (7th Cir. 2006);

Garcia v. Vill. of Mount Prospect, 360 F.3d 630, 636 (7th Cir. 2004). And we have

explained that such privity exists between government entities and their employees

when such employees are sued in their official capacities. See Gray v. Locke, 885

F.2d 399, 405 (7th Cir. 2005). See also Hafer v. Melo, 502 U.S. 21, 25 (1991) (noting

that claims against officers in their official capacity “represent another way of

pleading an action against an entity of which an officer is an agent.”) Thus, the

district court correctly applied the doctrine of res judicata to bar Easley’s claims

against Reuss in his official capacity. 

 We turn now to the claims against Reuss in his individual capacity, which

Reuss argues are barred under the doctrine of collateral estoppel (issue preclusion). 

Reuss raised this argument in his motion for summary judgment, but the district
No. 06-1646 Page 4

court did not address it in its order. An appellee, though, may urge an alternate

ground for affirmance that he raised below and that is supported by the record so

long as it does not enlarge the relief previously given the appellee. See Morley Co.

v. Maryland Cas. Co., 300 U.S. 185, 191 (1937); Ill. Sch. Dist. Agency v. Pacific Ins.

Co., 471 F.3d 714, 722 (7th Cir. 2006). It follows that we may consider Reuss’s

argument because the district judge decided the merits of Easley’s claims in Reuss’s

favor. See, e.g., Williams v. Seniff, 342 F.3d 774, 793 (7th Cir. 2003)

The doctrine of collateral estoppel provides that once a court has decided an

issue of fact or law necessary to its judgment, that decision is conclusive in a

subsequent suit involving a party to the prior litigation. Harrell v. U.S. Postal

Service, 445 F.3d 913, 921 (7th Cir. 2006). There are four specific elements to issue

preclusion: (1) the issue is the same as one involved in the prior action; (2) the issue

was actually litigated; (3) the determination of the issue was necessary to the prior

judgment; and (4) the party against whom preclusion is invoked was fully

represented in the prior action. Wash. Group Int’l, Inc. v. Bell, Boyd, & Lloyd LLC,

383 F.3d 633, 636 (7th Cir. 2004). And it makes no difference that Reuss is being

sued in his individual capacity because it is well settled that collateral estoppel may

be used defensively by a party who was not a party to the previous suit against a

plaintiff like Easley who has had one full and fair opportunity to litigate a given

issue. See Blonder-Tongue Laboratories, Inc. v. Univ. of Ill. Foundation, 402 U.S.

313, 325 (1971); Newman v. State of Ind., 129 F.3d 937, 942 (7th Cir. 1997). 

Easley only generally challenges the first prong of the test, again asserting

that the issues differ because she has advanced new legal theories. But to 

establish a claim for failure to intervene, a plaintiff must show that the officer had

reason to know "that any constitutional violation has been committed by another

law enforcement official; and the officer had a realistic opportunity to intervene to

prevent the harm from occurring." Windle v. City of Marion, 321 F.3d 658, 663 (7th

Cir. 2003). In other words, Easley’s claim can succeed only if Christopher’s shooting

by Reuss’s subordinates violated constitutional standards, which according to the

decision in Easley I, it did not. Under the doctrine of collateral estoppel, Easley

may not now relitigate whether the underlying shooting was justified.

 Accordingly, the judgment of the district court is AFFIRMED.