Case: 20-10954 Document: 00515799232 Page: 1 Date Filed: 03/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10954 March 29, 2021
Summary Calendar Lyle W. Cayce
Clerk
Dina Senga Kaswatuka,
Plaintiff—Appellant,
versus
Dallas/Fort Worth International Airport Board,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:20-CV-495
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Dina Kaswatuka, pro se, sued the Dallas/Fort Worth International
Airport Board (“DFW”). The district court dismissed on the merits. Kas-
watuka filed a second complaint with the same factual allegations and legal
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-10954 Document: 00515799232 Page: 2 Date Filed: 03/29/2021
No. 20-10954
bases. The district court dismissed on the merits and, alternatively, on res
judicata. We affirm.
I.
Kaswatuka was a Transportation Security Administration (“TSA”)
agent at the DFW Airport. She alleged that on September 9, 2019, she re-
ported her manager to the airport police because he had threatened to fire
her. She claims that the police wouldn’t take her report. She also filed a
report with the Equal Employment Opportunity Commission (“EEOC”).
On September 28, Kaswatuka had a phone interview with an EEOC
investigator during her shift at work. She claims that the police interrupted
that interview with a “welfare check,” accused her of planning a shooting,
and conducted a psychological examination. They concluded that Kaswa-
tuka was paranoid. They also accused her of hating America and Caucasians.
She asked to stop the investigation, which the officers ignored.
Kawatuka claims discrimination on two grounds. First, she asserts
that the officers conspired to protect her white manager, whom she reported.
Second, she contends that, because she is a black female from the Congo who
suffers from post-traumatic stress disorder, the police falsely accused her.
Kaswatuka makes various other allegations. First, the police harassed
her and hid her food, keys, and other equipment. Second, they refused to
press charges after an airline passenger had assaulted her. Third, the police
charged Kaswatuka’s representative in her EEOC complaint with assault and
removed him.
On February 27, 2020, Kaswatuka sued DFW, alleging discrimination
based on race, gender, disability, and national origin. The district court
dismissed on the merits. Kaswatuka v. DFW Airport Police, No. 4:20-CV-192-
A, 2020 WL 2086492, at *5 (N.D. Tex. Apr. 29, 2020). On May 15, 2020,
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Kaswatuka filed a second suit against DFW. As the district court noted, the
May 15 complaint was “identical” to the one filed on February 27. The court
dismissed on the merits under Federal Rule of Civil Procedure 12(b)(6) and,
alternatively, based on res judicata. Kaswatuka appeals the dismissal of that
second suit. Our review is de novo. Ruiz v. Brennan, 851 F.3d 464, 468 (5th
Cir. 2017).
II.
DFW contends that res judicata bars Kaswatuka’s claims. We agree.
Although a defendant ordinarily must raise res judicata “as an affirma-
tive defense,” a Rule 12(b)(6) dismissal “is appropriate if the res judicata bar
is apparent from the complaint . . . and the plaintiff fails to challenge the
defendant’s failure to plead it as an affirmative defense.” Anderson v. Wells
Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir. 2020) (cleaned up). Kaswatuka
didn’t bring any such challenge.
Thus, we determine whether res judicata is apparent from the com-
plaint. It is.
Res judicata is appropriate if: 1) the parties to both actions are
identical (or at least in privity); 2) the judgment in the first ac-
tion is rendered by a court of competent jurisdiction; 3) the first
action concluded with a final judgment on the merits; and
4) the same claim or cause of action is involved in both suits.
Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000).
First, the parties to both actions are identical. Although, in her first
complaint, Kaswatuka pleaded an incorrect name for DFW, the district court
noted that the proper party, the “Dallas/Fort Worth International Airport
Board,” was the defendant. Kaswatuka, 2020 WL 2086492, at *1.
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Second, Kaswatuka sued under 42 U.S.C. § 1983, raising a federal
question. See, e.g., Williams v. Missildine, No. 01-41109, 2002 WL 432653,
at *1 (5th Cir. Mar. 1, 2002) (per curiam). Thus, the court was of competent
jurisdiction.
Third, the district court dismissed Kaswatuka’s claim with prejudice.
Kaswatuka, 2020 WL 2086492, at *5. And that constitutes “a final judgment
on the merits for res judicata purposes.” Stevens v. Bank of Am., N.A.,
587 F. App’x 130, 133 (5th Cir. 2014) (per curiam).
Fourth, both suits involve “the same claim or cause of action.” Ellis,
211 F.3d at 937. In both, Kaswatuka claims that she was falsely accused of
planning a shooting and that airport police and TSA management were col-
laborating. Kaswatuka, 2020 WL 2086492, at *1. In both suits, she claims
that those accusations were retaliatory. Id. In both, she claimed discrimina-
tion based on her “race, gender, post-traumatic stress disorder, and national
origin.” Id. at *4. In both suits, she raises Fourth and Fifth Amendment
claims. Id. at *3. In both, she sought relief under the Americans with Disa-
bilities Act and the Civil Rights Act. Id. at *4–5. As the district court put it,
the complaints were “identical.”
In general, “a district court errs in dismissing a pro se complaint for
failure to state a claim under Rule 12(b)(6) without giving the plaintiff an
opportunity to amend.” Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999)
(cleaned up). But “if a complaint alleges the plaintiff’s best case, there is no
need to remand.” Id. at 327. We thus ask whether “[w]e can perceive of [a]
viable claim” that a plaintiff “could include in an amended petition with
regard to these underlying facts.” Id. We perceive none. The court, there-
fore, did not err by dismissing with prejudice.
AFFIRMED.
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