United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 27, 2016*

Decided October 31, 2016

Before

WILLIAM J. BAUER, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

No. 16-1594

ROBERT GALLAGHER,

Plaintiff-Appellant,

v.

NATHAN O’CONNOR and VILLAGE 

OF LYONS, ILLINOIS,

Defendants-Appellees.

Appeal from the United States District 

Court for the Northern District of Illinois, 

Eastern Division.

No. 14 C 7859

Charles R. Norgle,

Judge.

O R D E R

Robert Gallagher appeals the dismissal of his suit under 42 U.S.C. § 1983 alleging 

that the Village of Lyons and one of its police officers, Officer Nathan O’Connor, violated 

his constitutional rights during an October 2013 arrest and subsequent criminal 

prosecution in state court. The district court concluded that “nonmutual claim 

preclusion” barred his suit because Gallagher previously sued other defendants for 

alleged violations stemming from the same events. But claim preclusion requires

 

* 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NONPRECEDENTIAL DISPOSITION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. 16-1594 Page 2

mutuality of parties, and O’Connor and the Village were not in privity with the 

defendants whom Gallagher had sued. We affirm in part, vacate in part, and remand. 

In his most recent complaint, Gallagher alleged that Officer O’Connor and the 

Village violated his constitutional rights when he was arrested at a gas station in October 

2013. Gallagher stated that he was riding in a friend’s car when O’Connor accelerated his 

car toward them, intending to cause a “T Bone Crash”—a broadside collision. 

Gallagher’s friend swerved away from O’Connor and pulled into a gas station.

Gallagher got out of the car to check if the tires were low on air and, finding no problem,

switched places with his friend and began backing the car out of the station. He was 

blocked, however, by O’Connor, who had parked his car in the gas station’s exit.

O’Connor walked over and asked Gallagher to see his license and proof of insurance;

Gallagher replied that these documents were in the trunk. Gallagher went to fetch the 

documents from the trunk but was assaulted by O’Connor, who twisted his arm and 

slammed him against the car. The result, Gallagher claimed, was a broken arm,

“damage[]” to his “chest internal organs,” and damage to his friend’s vehicle. Gallagher 

was arrested and charged with trespassing and resisting a peace officer.

Gallagher also alleged that his constitutional rights were violated twice during his 

state criminal trial. At a November 2013 hearing, Gallagher asserted, O’Connor 

“attempted” to falsely arrest him, but he “defeated” this attempt. Then in December 

2013, Gallagher complained that he was falsely arrested for arriving late to court. 

After being convicted of resisting a peace officer but acquitted of trespassing, he 

filed this federal suit. He asserted claims against O’Connor for excessive force, malicious 

prosecution, falsely arresting him at the gas station, attempting to falsely arrest him at 

the state court hearing in November 2013, and falsely arresting him in December 2013 

for failing to appear at the state court hearing. He also complained that the Village is 

liable for employing O’Connor and failing to train its police officers under Monell v. 

Department of Social Services, 436 U.S. 658, 691 (1978).

These events had been the subject of three prior suits Gallagher had filed. In case 

13 C 7891, he sued the gas station’s manager for having him falsely arrested in October 

2013, attempting to falsely arrest him at the state court hearing in November 2013, and 

intentionally inflicting emotional distress. The parties filed a joint stipulation to dismiss

that suit. Second, in case 14 C 3801, he sued the gas station’s manager along with the 

Office of the Cook County Public Defender (for negligence in connection with his 

state-court criminal proceedings), a state court judge (for having him falsely arrested for 

failing to appear at a hearing in December 2013), former Governor Patrick Quinn (for 
No. 16-1594 Page 3

negligence and for employing the Public Defender and the state-court judge), and the 

Cook County Sheriff (for inflicting cruel and unusual punishment and intentional 

infliction of emotional distress). The court dismissed that suit because Gallagher failed to 

serve former Governor Quinn and the state-court judge, as required by Federal Rule of 

Civil Procedure 4(m), and he failed to respond to motions to dismiss filed by the other 

defendants. In his third case, 14 C 3803, Gallagher sued the gas station’s owner for the 

station manager’s actions and for negligence, and an insurance company for concealing

the ownership of the gas station. That suit was dismissed when Gallagher again failed to 

respond to a motion to dismiss.

Based on these prior lawsuits, O’Connor and the Village moved to dismiss the 

complaint on grounds of “nonmutual claim preclusion,” which they characterized as “an 

expansion of the res judicata doctrine that abandons the mutuality requirement.” This 

doctrine, they maintained, barred Gallagher’s suit because they had a “close and 

significant relationship with the original defendants” and Gallagher was asserting the 

same claims against them that he had asserted in the prior suits.

The district court granted the defendants’ motion and dismissed Gallagher’s suit. 

The court understood the defendants to argue that they were indispensable parties 

whom Gallagher was required to join in his first suit, see FED. R. CIV. P. 19, and 

“nonmutual claim preclusion” therefore barred him from suing them here. According to 

the court, Officer O’Connor and the Village were in privity with the defendants in 

Gallagher’s prior suits, given that the complaints in those suits were “rife with 

assertions” that O’Connor and the Village had conspired with the named defendants to 

deprive him of his constitutional rights. In addition, all of Gallagher’s cases arose from 

the same set of operative facts. And each of the prior cases ended in a final judgment on 

the merits, the court said, including case 13 C 7891, in which Gallagher filed a stipulation 

of dismissal with prejudice, because a joint stipulation of dismissal with prejudice is 

given preclusive effect in later lawsuits.

On appeal, Gallagher challenges the district court’s application of claim 

preclusion. He argues that O’Connor and the Village are not in privity with the 

defendants in his prior suits, and he maintains that this suit involves different 

claims—including claims of excessive force—than those in his other three cases.

Courts distinguish between two types of preclusion. Claim preclusion bars a 

subsequent lawsuit if the parties are identical to (or in privity with) the parties in the 

prior suit, a prior final judgment on the merits was entered in the first suit, and the two 

suits have identical claims. Cannon v. Burge, 752 F.3d 1079, 1101 (7th Cir. 2014). Issue 
No. 16-1594 Page 4

preclusion, on the other hand, bars “refers to the effect of a prior judgment in foreclosing 

successive litigation of an issue of fact or law actually litigated and resolved in a valid 

court determination essential to the prior judgment, whether or not the issue arises on 

the same or a different claim.“ New Hampshire v. Maine, 532 U.S. 742, 748–49 (2001). While 

the requirement that the parties be identical or in privity has been abandoned in the 

context of issue preclusion, it remains an essential part of this court’s jurisprudence 

regarding claim preclusion in order to ensure that “each person [has] his or her own day 

in court.” Tice v. American Airlines, Inc., 162 F.3d 966, 972 (7th Cir. 1998); see also Nevada v. 

United States, 463 U.S. 110, 143 (1983). The minimum requirements for a nonparty to be

adequately represented by a party in a prior suit are an alignment of interests between 

the nonparty and the representative, the party’s understanding that it was acting in a 

representative capacity, and notice to the nonparty of the suit. See Taylor v. Sturgell, 553 

U.S. 880, 900–01 (2008).

The district court erred when it concluded that Officer O’Connor and the Village 

were in privity with the defendants in Gallagher’s other cases. Gallagher sued O’Connor 

in his individual capacity, see Miller v. Smith, 220 F.3d 491, 493–94 (7th Cir. 2000) 

(individual capacity suit exists when a plaintiff alleges tortious conduct of a person 

acting under color of state law and seeks monetary damages), and O’Connor’s interests 

were not represented by any of the defendants in Gallagher’s prior suits because he 

would have to pay any judgment against him out of his own pocket, see Sterling v. United 

States, 85 F.3d 1225, 1228 (7th Cir. 1996). Neither is the Village in privity with any of the 

defendants in Gallagher’s other suits; no prior defendant was a Village official sued in 

his official capacity, see Gray v. Lacke, 885 F.2d 399, 405 (7th Cir. 1989) (“Suits against 

employees in their official capacities are essentially suits against the government entities 

for which they work.”). The district court believed that Gallagher had to join O’Connor 

and the Village in his earlier suits, but plaintiffs may litigate separately against joint 

tortfeasors. See Temple v. Synthes Corp., 498 U.S. 5, 7 (1990); Sterling, 85 F.3d at 1228

(plaintiff not required to join the government in a prior action against government 

employee being sued in his individual capacity).

Issue preclusion also cannot apply here because the issues in this lawsuit were not 

previously litigated and determined in Gallagher’s other suits. See Firishchak v. Holder, 

636 F.3d 305, 308 (7th Cir. 2011) (issues must be actually litigated and determined in 

order to be given preclusive effect); Levinson v. United States, 969 F.2d 260, 264 (7th Cir. 

1992) (Claim and issue preclusion “do not apply where, as here, the issues or causes of 

action sought to be precluded in a subsequent proceeding were allegedly determined in 

a stipulation or a judgment by consent.” (internal quotation marks omitted)).
No. 16-1594 Page 5

Because neither claim preclusion nor issue preclusion bars this suit, we turn to the 

merits of Gallagher’s complaint and conclude that he stated two constitutional claims 

that should be allowed to proceed. First, he stated a claim of excessive force. As 

Gallagher alleged, Officer O’Connor broke his arm and slammed him against the car 

hard enough to harm his “chest internal organs” and dent the car. These allegations, if 

proven, could show that O’Connor used more force than necessary to arrest Gallagher at 

the gas station. See Holmes v. Vill. of Hoffman Estate, 511 F.3d 673, 685 (7th Cir. 2007).

Gallagher also stated a claim of malicious prosecution, though with regard only 

to the trespassing charge. Malicious prosecution is offense-specific in Illinois,

see Williams v. City of Chicago, 733 F.3d 749, 759 (7th Cir. 2013), and he asserted that the 

criminal proceeding terminated in his favor, was initiated against him without probable 

cause, with malice, and resulted in damages. Gonzalez v. City of Elgin, 578 F.3d 526, 541 

(7th Cir. 2009). On the other hand, Gallagher cannot state a claim of malicious 

prosecution in connection with the resisting arrest charge because he admitted that he 

was convicted of that charge. See id.

Gallagher’s remaining allegations, however, fail to state a claim. Gallagher failed 

to state a claim against the Village for instituting a pattern or practice of failing to train 

its police officers under Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). In 

order to state a claim against the Village for failure to train its officers, Gallagher needed 

to “plead[] factual content that allows the court to draw the reasonable inference” that 

the Village maintained a policy, custom, or practice of using excessive force, 

inadequately trained officers on the use of force, or was deliberately indifferent to the 

use of excessive force. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011).

Gallagher does not contend that the Village has an express policy or that an individual 

with policymaking authority caused his injury, so he must allege “a common, unwritten 

practice put in place by the [Village] that nonetheless has the force of law.” League of 

Women Voters of Chi. v. City of Chicago, 757 F.3d 722, 727–28 (7th Cir. 2014). He fails to do 

so. Rather his complaint merely describes the factual circumstances of his arrest and 

tacks on boilerplate allegations that trace the legal requirements of a Monell claim. He 

does not allege that a practice of using excessive force is common to the rest of the 

Village’s police force or that excessive force has been used on other occasions in 

accordance with the supposed policy, see id. (recognizing three separate instances of 

aldermen relying on a new redistricting map prior to its implementation did not suffice 

to state a claim under Monell). Accordingly, Gallagher has failed to allege that the Village 

violated his constitutional rights.
No. 16-1594 Page 6

To the extent that Gallagher complains that his arrest in October 2013 amounted 

to a false arrest, he pleaded himself out of court when he alleged facts reflecting that 

Officer O’Connor had probable cause to arrest him—probable cause being a complete 

defense to a false arrest claim. See Williams, 733 F.3d at 756. Gallagher’s allegations that 

the gas station’s manager complained to O’Connor about Gallagher’s presence on the 

property and that he should have seen signs warning him not to enter the property

would give O’Connor probable cause. See 720 ILCS 5/21-3(a)(3), (b); United States v. 

Kincaid, 212 F.3d 1025, 1029 (7th Cir. 2000) (A “No Trespassing” sign and prior 

interactions with the property owner established probable cause.).

Nor can Gallagher state a claim that he was falsely arrested in November 2013. He 

alleged that he “defeated” this attempt, and we understand this allegation to mean that

he was not arrested at all. See Copus v. City of Edgerton, 151 F.3d 646, 649 (7th Cir. 1998) 

(§ 1983 claim for a Fourth Amendment violation accrues at the time of the seizure). 

Similarly he cannot state a claim against O’Connor that he was falsely arrested in 

December 2013 because O’Connor was not involved in this arrest. Gallagher’s brief 

clarifies that it was the state-court judge, not O’Connor, who “rearrested [him] by falsely 

claiming that he was an hour late to a court date.” He also cannot maintain his claim 

against the Village for employing O’Connor because a municipality cannot be liable 

under § 1983 for employing a tortfeasor. Monell, 436 U.S. at 691; Rossi v. City of Chicago, 

790 F.3d 729, 737 (7th Cir. 2015).

We AFFIRM the judgment to the extent that Gallagher challenges the dismissal of 

his claims for false arrest and his claims against the Village. We VACATE the judgment 

to the extent Gallagher challenges the dismissal of his claims for excessive force and 

malicious prosecution against O’Connor, and we REMAND for further proceedings.