United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted July 30, 2019*

Decided July 30, 2019

Before

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 18-2985

ARLENE R. ATHERTON,

Plaintiff-Appellant,

v.

ST. VINCENT HOSPITAL, et al.,

Defendants-Appellees.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 18-cv-02321

Andrea R. Wood,

Judge.

O R D E R

Arlene Atherton has filed four complaints in the Northern District of Illinois, 

suing nine New York entities and residents for their roles in her allegedly unlawful 

commitment to New York psychiatric hospitals. The case before us—the last to be 

adjudicated in the district court—was dismissed at screening based on res judicata and 

improper venue. See 28 U.S.C. § 1915(e). We affirm the judgment on both grounds.

 

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

participating in this appeal. We have agreed to decide this case without oral argument 

because the brief 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NONPRECEDENTIAL DISPOSITION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. 18-2985 Page 2

In her complaint, Atherton states that the district court previously dismissed a

nearly identical suit. Both suits allege that the defendants wrongly arrested her and 

discriminated against her based on her disabilities, and that her commitment violated

her free exercise of religion, due-process rights, and liberty. The district court dismissed

the earlier suit because Atherton had failed to obey an order that she either file a proper 

application for leave to proceed in forma pauperis or pay the filing fee. 

Atherton asserts that her current suit is her attempt to reopen the earlier one, but 

filing a new suit is not the proper way to ask a court to reopen a dismissed case. After 

the district court dismissed the first suit, Atherton had several options, none of which 

she pursued: She did not appeal the dismissal, see FED. R. APP. P. 3, move the district 

court to modify the dismissal, see FED. R. CIV. P. 59(e), or ask that court to grant relief 

from the dismissal, see FED. R. CIV. P. 60(b). Because the first case is closed, the judgment 

there can, and as we are about to explain does, bar this suit. 

Atherton challenges whether res judicata bars this case, but we agree with the 

district court that it does. Although res judicata is an affirmative defense, dismissal at 

screening is proper when it is clear “from the face of the complaint” that res judicata 

bars the claims. Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). A district court 

may dismiss a suit based on res judicata if the plaintiff’s earlier suit raised identical 

claims against the same parties (or their privies) and reached a final judgment on the 

merits. See Barr v. Bd. of Trs. of W. Ill. Univ., 796 F.3d 837, 840 (7th Cir. 2015). That is all 

evident from Atherton’s complaint. She sues seven of the defendants whom she 

previously sued and labels this suit a “reopen[ing] of a previous complaint.” Moreover, 

the earlier dismissal was on the merits. Under Rule 41(b) of the Federal Rules of Civil 

Procedure, when, as here, the district court dismisses a suit for plaintiff’s failure to 

comply with a court order, the dismissal “operates as an adjudication on the merits.” 

See Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 822 (7th Cir. 2006). (Although Rule 41 refers to 

dismissals prompted by a defendant’s motion, the Rule also applies when a court sua 

sponte dismisses the suit for violations of court orders. See Link v. Wabash Railroad Co., 

370 U.S. 626, 630 (1963).)

Atherton responds that res judicata does not block the claims against the two 

defendants whom she did not previously sue—Westchester County Government and 

the New York State Office of Mental Health. She adds that she should be allowed to 

proceed on those claims in the Northern District of Illinois because venue is proper. She

may be correct about res judicata, but she is wrong about venue. To show that venue is 
No. 18-2985 Page 3

proper, Atherton argues that the district court had federal-question jurisdiction over her

claims against the two new defendants. But a federal question establishes subject-matter 

jurisdiction; it has no bearing on whether the plaintiff brought the suit in the proper 

court from a geographic standpoint. See 28 U.S.C. § 1390(a). 

As with res judicata, improper venue is an affirmative defense that district courts 

ordinarily should not consider at screening. See Auto. Mechs. Local 701 Welfare & Pension 

Funds v. Vanguard Car Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007). But the 

complaint establishes that venue in Illinois is improper, so the district court acted 

properly when it addressed the defense. Atherton specifies in her complaint that the 

defendants are New York government entities, and all relevant events—including 

Atherton’s psychiatric commitment—took place in that state. See 28 U.S.C. § 1391(b). 

The district court thus permissibly dismissed these two defendants for improper venue, 

and it rightly described their dismissal as without prejudice. See 28 U.S.C. § 1406; In re 

IFC Credit Corp., 663 F.3d 315, 320 (7th Cir. 2011).

AFFIRMED