Neuman, James v. McCoy, Mike

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
(Submitted November 2, 2006*)
Decided December 22, 2006
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Nos. 05-2350, 05-2351
Appeals from the United States
James Neuman, District Court for the
Plaintiff-Appellant, Central District of Illinois.
v. No. 05-1002
Mike McCoy, et al., Joe Billy McDade, Judge.
Defendants-Appellees.
ORDER
James Neuman filed this pro se civil rights law suit against numerous
defendants, including various Peoria City and County officials and entities and the
State of Illinois. This is the second time he has tried to assert claims arising out of
his arrest and detention on January 21, 2003, and the denial of his request to have
certain subpoenas served on his behalf. See Neuman v. Peoria County Police Dep’t,
No. 05-3279, 2006 WL 1869435 (7th Cir. June 26, 2006) (unpublished order).
Relying on the doctrines of claim and issue preclusion, the district court dismissed
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. The appeal is therefore submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
Nos. 05-2350, 05-2351 Page 2
the suit. We affirm.
I
The underlying facts reveal a brief episode of mistaken identity, which was
straightened out relatively quickly. In January 2003 Neuman, who was pursuing a
small claims action, went to court to appear before Judge Brian Nemenoff of Peoria
County. While he spoke to the courthouse bailiff, complaining that his case had
been delayed while Judge Nemenoff was hearing criminal cases, Officer Larry Ryan
and then-Officer Tim Fuller approached him to determine whether he was the same
James Neuman who was wanted on an outstanding arrest warrant. When they
asked for his date of birth, Neuman was uncooperative: he responded that he did
not have his driver's license and that he would not provide his date of birth. The
officers arrested him pursuant to the warrant.
Very shortly thereafter, a police dispatcher radioed the date of birth of the
James Neuman named on the warrant. The officers quickly realized that the
Neuman they arrested was younger than the 45-year-old they were seeking. Rather
than release him, however, the officers changed the charge to obstruction of justice,
because Neuman had refused to provide his date of birth. At that point, Neuman
was taken into custody, held for four hours (during which he alleges that Fuller
taunted him by laughing and waving at him), and released. Prosecutors did not
pursue the obstruction of justice charge.
Two months before commencing his first lawsuit, Neuman tried to obtain certain
courthouse video surveillance tapes by delivering two subpoenas to Jim Ludolph,
Director of Courthouse Security and Civil Process Server Supervisor for the Peoria
County Sheriff and asking Officer Ludolph to serve them for him. Ludolph refused
because they were not related to a pending matter.
In January 2004, Neuman filed his first action, basing it on 42 U.S.C. § 1983. In
it, he alleged that Judge Nemenoff erred both by delaying his consideration of
Neuman’s small claims case to attend to his criminal docket and in his ultimate
dismissal of Neuman’s case. He also charged that Officer Ryan wrongfully arrested
him pursuant to the outstanding arrest warrant and that Officers Ryan and Fuller
wrongfully arrested him for obstruction of justice. Finally, he asserted that Ludolph
wrongfully refused to serve his subpoenas. The district court dismissed his claims
against the Peoria Police Department, Officer Ryan, and Judge Nemenoff for failure
to state a claim upon which relief can be granted; it dismissed his claim against
Officer Fuller for lack of personal jurisdiction; and it granted summary judgment in
favor of Officer Ludolph. Neuman appealed, and we eventually affirmed the district
court’s judgment.
Nos. 05-2350, 05-2351 Page 3
II
While Neuman’s appeal in his first case was pending in this court, he filed a
second lawsuit, also based on 42 U.S.C. § 1983, in which the facts he alleged were
identical but the legal theories were new and some additional defendants were
named. The district court dismissed the new suit on its own motion, citing claim
and issue preclusion. The court reasoned that Neuman could not raise these claims
against the Police Department, Officer Ryan, Officer Ludolph, and Judge Nemenoff,
because there was a final judgment on the merits in favor of each one. As for the
remaining defendants, the court found that issue preclusion barred Neuman’s
claims: the first suit necessarily resolved the dispositive issue of whether Neuman
was deprived of any rights. Neuman has again appealed.
We first consider the district court’s invocation of claim preclusion to bar
Neuman’s suit against the four original defendants. (We note that this is ordinarily
an affirmative defense, which a defendant would raise under Fed. R. Civ. P. 8(c),
but in this case the problem was apparent on the face of Neuman’s second
complaint and the defendants have by now made it clear that they had no intention
of waiving this defense.) Claim preclusion 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). Claim preclusion bars not only
issues actually decided in the 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).
Neuman urges us to find that he is not advancing the same claim in his new
lawsuit, because the legal theories he is asserting are different. This argument,
however, reflects a fundamental misunderstanding of the concept of claim
preclusion. For purposes of claim preclusion, “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 plain
from a review of Neuman’s two complaints that both arise out of the same
transaction or occurrence, such that both represent only one constitutional “case.”
Cloaking these facts in new legal jargon does not create a new claim. See Cannon v.
Loyola Univ. of Chicago, 784 F.2d 777, 780 (7th Cir. 1986). Neuman also argues
that the present lawsuit is different because he has named new defendants. But
that fact has nothing to do with the question whether claim preclusion bars his suit
against the defendants who were present for the first case. The district court
correctly recognized that it does.
We turn now to the claims against the new defendants, which the district court
found barred by virtue of issue preclusion. The latter doctrine bars the relitigation
of issues of fact or law between the same parties or their privies. Simon v. Allstate
Nos. 05-2350, 05-2351 Page 4
Employee Group Med. Plan, 263 F.3d 656, 658 (7th Cir. 2001). There are four
elements to issue preclusion: (1) the issue must be the same as the one involved in
the prior action; (2) the issue must actually have been litigated; (3) the
determination of the issue must have been necessary to the prior judgment; and (4)
the party against whom preclusion is invoked must have been present (or properly
represented) in the prior action. Wash. Group Int’l, Inc. v. Bell, Boyd & Lloyd LLC,
383 F.3d 633, 636 (7th Cir. 2004).
Neuman raises only a general challenge to the identity of issues in his two suits.
He also urges, again, that the lawsuits differ because he has added new parties
(including the State of Illinois, the City of Peoria, the County of Peoria, the Chief
Judge of the Peoria County Courthouse, unnamed police officers, and the unnamed
Bailiff of the Peoria County Courthouse) and he has advanced new legal theories
(including allegations of First, Fifth, Sixth, Eighth, and Ninth Amendment
violations). As for Neuman’s first point, the district court correctly found that his
claims could succeed only if Neuman’s allegations revealed that the defendants’
actions (or inaction) deprived him of a right secured by the Constitution or laws of
the United States, as § 1983 requires. Baker v. McCollan, 443 U.S. 137, 140 (1979).
Since the very same actions are at issue in the present case, this element of issue
preclusion is easily satisfied. The fact that Neuman is now trying to assert those
claims against new defendants is of no moment, since the Supreme Court has
recognized that issue preclusion may be used offensively against a plaintiff who has
had one full and fair opportunity to litigate a given claim, as long as exceptions not
applicable here do not apply. See Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979).
The judgment of the district court is AFFIRMED. Our business with Neuman is
not quite complete, however. The records of this court show that, in addition to the
two appeals now before us, Neuman has filed 28 additional notices of appeal
recently. Eighteen of those appeals were dismissed as duplicative while a motion for
permission to proceed in forma pauperis was pending, see Nos. 05-2153, 05-2217,
and 05-2455-2470; the court waived the fee in No. 05-2471 after the appeal was
administratively closed on the ground that it had been opened in error; and
Neuman paid the filing fee for five of his appeals, Nos. 05-1223, 05-2152, 05-3279,
and the two now before us, 05-2350 and 05-2351. He has not paid the filing fee for
the remaining six appeals: Nos. 05-1111 and 05-1646, both of which are appeals for
which the filing fee was $255, and four mandamus actions, 05-1216, 05-2119, 05-
2120, and 05-2121, for which the filing fee was $250. In all, this means that
Neuman owes $1,510 in unpaid filing fees. Under the terms of Support Systems Int’l
v. Mack, 45 F.3d 185 (7th Cir. 1995), we order that until Neuman pays this amount
in full, he is hereby barred from filing further civil suits in the courts of this circuit,
with the exceptions recognized in Mack. Also in keeping with Mack, he will be
entitled to move for modification of this order after two years from the date of the
mandate in this case.