West, Rufus v. Litscher, Jon , 209 F. App'x 557 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006*
Decided December 15, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-1733
RUFUS WEST, Appeal from the United States District Court
Plaintiff-Appellant, for the Western District of Wisconsin
v. No. 06-C-037-S
JON E. LITSCHER, et al., John C. Shabaz,
Defendants-Appellees. Judge.
ORDER
Rufus West, an inmate at the Wisconsin Secure Program Facility, filed suit
in state court claiming that guards and medical staff denied him food and
medication in violation of federal and state law. The defendants removed the suit
to federal court and promptly moved for dismissal on the ground that West had
sued them before in federal court on the same claims and lost. Judge Shabaz
granted the defendants’ motion, and West appeals.
West is housed at Wisconsin’s “supermax” prison. In his earlier lawsuit, filed
in the Eastern District of Wisconsin in March 2003, West claimed that guards and
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. Fed. R. App. P. 34(a)(2).
No. 06-1733 Page 2
medical workers often refused to deliver food or medications either because he
would not comply with their commands to sit, wear pants, or remove a towel from
the crown of his head or because they wanted to retaliate for his many prison
grievances. West, a frequent litigator, named more than a hundred defendants.
Magistrate Judge Callahan screened the complaint under 28 U.S.C. § 1915A and
allowed West to proceed on several federal claims but said nothing about the state
claims. The court, sitting by consent, see 28 U.S.C. § 636(c), then transferred the
case to the Western District of Wisconsin, where West is confined. After the
transfer Judge Shabaz dismissed the action without prejudice as against those
named defendants West had not served with process. See Fed. R. Civ. P. 4(m).
Among those dismissed without prejudice were Todd Evers and Lebbeus Brown,
both prison employees, and Katherine McQuillan, a nurse working for a private
corporation. In July 2004 Judge Shabaz dismissed the complaint with prejudice as
to the remaining defendants when West failed to comply with a court order.
See Fed. R. Civ. P. 41(b). West did not appeal the judgment.
The current litigation, which West initiated in state court in December 2005,
raises the same claims as the earlier suit and names all of the same defendants plus
a few more. But West managed to serve only twenty-five of the named defendants
before those defendants removed the case to federal court, so for purposes here we
can ignore the others. The twenty-five, which includes Evers, Brown, and
McQuillan, were all named in West’s prior suit, and all but those three were
dismissed from the earlier case with prejudice. After West’s new lawsuit was
assigned to Judge Shabaz, the twenty-five served defendants moved for dismissal
under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint is precluded by the
earlier litigation. West opposed the motion and argued under 28 U.S.C. § 144 that
Judge Shabaz was prejudiced and should recuse himself. The court denied West’s
motion and granted the defendants’ motion to dismiss.
West makes two arguments on appeal. He first contends that Judge Shabaz
abused his discretion in refusing to recuse himself. According to West, Judge
Shabaz could not be fair as evidenced by “arbitrary orders” the court issued in
West’s prior case and in other lawsuits brought by indigent inmates. This
contention is frivolous. A judge must recuse himself under § 144 if a party files a
timely and sufficient affidavit suggesting personal prejudice against the party.
Tezak v. United States, 256 F.3d 702, 716-17 (7th Cir. 2001). But an affidavit is not
sufficient unless it includes definite and particular facts about times, places,
persons, and circumstances that would convince a reasonable person that the judge
is prejudiced. Id. at 717. Opinions, rumors, and conjecture will not suffice, see id.,and almost never will adverse rulings by the judge provide a basis for seeking
disqualification under § 144, see Liteky v. United States, 510 U.S. 540, 555 (1994);
Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000). In this case West
No. 06-1733 Page 3
tendered, not an affidavit, but a one-page motion relying on court orders he
characterized as erroneous. Plainly this submission did not satisfy § 144.
West next argues that Judge Shabaz erred in dismissing his complaint as
precluded by the prior litigation. The doctrine of claim preclusion bars relitigation
of a claim decided on the merits in a prior lawsuit involving the same parties or
their privies. See, e.g., Highway J Citizens Group v. United States Dep’t of Transp.,
456 F.3d 734, 741 (7th Cir. 2006); Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 822 (7th
Cir. 2006); Cent. States, Se. & Sw. Areas Pension Fund v. Hunt Truck Lines, Inc.,
296 F.3d 624, 628 (7th Cir. 2002). A claim in a second suit is the same as an earlier
one if it arises from the same facts. Manicki v. Zeilmann, 443 F.3d 922, 924-25 (7th
Cir. 2006); Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337, 338-39 (7th Cir.
1995). West concedes that the claims in his two suits are identical; he also concedes
that the federal claims in his first suit were decided on the merits as to the
defendants he served with process in that litigation. He contends, however, that his
federal claims are not precluded against Evers, Brown, and McQuillan because they
were never served in the first suit. He also argues that his state claims are not
precluded against any of the defendants because, in his view, the state claims were
not decided on the merits when they were screened out under § 1915A.
The latter contention is incorrect. When Magistrate Judge Callahan
screened West’s complaint in the first suit, the court did not decline to exercise
supplemental jurisdiction, see 28 U.S.C. § 1367(c), as West believes. The relevant
statute, § 1915A, directs the court to screen out claims that are frivolous, or that
could not survive a motion to dismiss under Rule 12(b)(6), or that seek damages
from an immune defendant. 28 U.S.C. § 1915A(b); Zimmerman v. Tribble, 226 F.3d
568, 571 (7th Cir. 2000). And though Magistrate Judge Callahan did not explicitly
mention the state claims when the court authorized West to proceed on several of
his federal claims, we have no reason to conclude that the court was applying
§ 1367(c) rather than § 1915A. Effectively, then, the court dismissed the state
claims with prejudice, see Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775
(7th Cir. 2002), which precludes West from relitigating them.
West is correct, however, that Judge Shabaz erred in relying on claim
preclusion to dismiss his federal claims as to Evers, Brown, and McQuillan. A
dismissal for lack of service is not an adjudication on the merits, see Fed. R. Civ. P.
4(m) (formerly Rule 4(j)); Lewellen v. Morley, 875 F.2d 118, 120 (7th Cir. 1989);
Powell v. Starwalt, 866 F.2d 964, 965-66 (7th Cir. 1989), “so principles of preclusion
do not bar the way” of West pursuing his federal claims against those three
defendants. Lewellan, 875 F.2d at 120. And while these three defendants argue
that they were in privity with their colleagues who secured a merits decision in the
prior case, we have held that, under federal principles of claim preclusion,
defendants sued individually are not in privity with each other. Beard v. O’Neal,
No. 06-1733 Page 4
728 F.2d 894, 897-98 (7th Cir. 1984) (distinguishing Sunshine Anthracite Coal Co. v.
Adkins, 310 U.S. 381 (1940), and recognizing that while FBI agents sued in official
capacity are in privity with each other, those sued in personal capacities are not).
See also Gray v. Lacke, 885 F.2d 399, 405 (7th Cir. 1989) (holding that county
employees were not in privity with county when sued in their personal capacities);
Conner v. Reinhard, 847 F.2d 384, 395 (7th Cir. 1988) (“[C]ourts do not generally
consider an official sued in his personal capacity as being in privity with the
government.”). West seeks damages for allegedly unconstitutional acts committed
by the named defendants, so he has sued the three defendants in their individual,
not official, capacities. See Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001)
(citing Hill v. Shelander, 924 F.2d 1370, 1373 (7th Cir. 1991); Miller v. Smith, 220
F.3d 491, 494 (7th Cir. 2000)). And though it may well be that under Wisconsin law
these defendants would be deemed in privity with their colleagues who obtained a
merits decision in the prior lawsuit, see Froebel v. Meyer, 217 F.3d 928, 933-34 (7th
Cir. 2000); Northern States Power Co. v. Bugher, 525 N.W.2d 723, 728 (Wis. 1995),
we are concerned with a prior federal judgment, so Wisconsin rules of claim
preclusion are irrelevant. See Cent. States, Se. & Sw. Areas Pension Fund, 296 F.3d
at 628; EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1290 n.4 (7th Cir. 1993).
The federal claims against Evers, Brown, and McQuillan were thus dismissed
improperly. We note that West faces a significant obstacle given our recent decision
in Freeman v. Berge, 441 F.3d 543, 545 (7th Cir. 2006), which holds that prison
administrators may set and enforce reasonable conditions on the receipt of food,
including wearing appropriate attire. But the defendants have never argued that
West’s complaint fails to state a federal claim, nor have they ever suggested an
alternative ground that might support dismissal of his federal claims. Accordingly,
the judgment of the district court is VACATED to the extent it dismisses the federal
claims against Todd Evers, Lebbeus Brown, and Katherine McQuillan, and as to
those three defendants the case is REMANDED for further proceedings. In all
other respects, the judgment is AFFIRMED.