[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 7, 2008
No. 07-13747 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-80217-CV-DTKH
CURTIS SHERROD,
Plaintiff-Appellant,
versus
THE SCHOOL BOARD OF PALM BEACH COUNTY,
TOM LYNCH,
DR. ARTHUR JOHNSON,
FRAN GIBLIN,
ESTHER BULGER, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 7, 2008)
Before DUBINA, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Curtis Sherrod, proceeding pro se, appeals the dismissal, on res judicata
grounds, of his 42 U.S.C. § 1983 civil rights action against the School Board of
Palm Beach County (“the Board”), several individuals involved in the events
leading to his termination from employment as a high school teacher in Palm
Beach County, and the Board’s attorneys in a prior § 1983 civil rights suit Sherrod
instituted against the Board. On appeal, Sherrod argues that his prior federal
lawsuit does not preclude his current § 1983 suit because the facts underlying the
instant action arose after he filed his original complaint in the prior suit.1 After
careful review, we affirm in part and vacate and remand in part.
We review de novo the district court’s application of res judicata. See
E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). Res
judicata, or claim preclusion, bars a party from relitigating a cause of action that
was, or could have been, raised in a previous suit between the parties that resulted
in a final judgment on the merits. In re Piper Aircraft Corp., 244 F.3d 1289, 1296
(11th Cir. 2001). A party seeking to invoke res judicata must satisfy four
elements: “(1) the prior decision must have been rendered by a court of competent
jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases
1
Sherrod also argues the district court erred by finding that the individual defendants to
the instant action were parties to, or in privity with parties to, his earlier federal lawsuit. We find
no clear error in the district court’s privity findings. Cf. E.E.O.C. v. Pemco Aeroplex, Inc. 383 F.3d
1280, 1285 (11th Cir. 2004) (reviewing district court’s finding of privity for clear error).
2
must involve the same parties or their privies; and (4) both cases must involve the
same causes of action.” Id. If the party satisfies these requirements, the district
court must determine whether the new claims could have been raised in the prior
suit, and if so, the claims are barred by res judicata. Id. The preclusion of claims
that “could have been brought” does not include claims that arose after the original
complaint was filed in the prior action, unless the plaintiff actually asserted the
claim in an amended pleading, but res judicata does not bar the claim simply
because the plaintiff elected not to amend his complaint. Pleming v. Universal-
Rundle Corp., 142 F.3d 1354, 1357 (11th Cir. 1998). This is true even if the
plaintiff discussed the facts supporting the subsequent claim in support of his
claims in the prior case. Id. at 1358-59.
Here, the district court’s res judicata dismissal was based on Sherrod’s
previous § 1983 civil rights action against the same defendants, or their privies
(“Sherrod I”). In Sherrod I, in a third amended complaint filed on October 24,
2003, Sherrod asserted a § 1983 action against the Board, alleging equal protection
and free speech violations based on retaliation. Sherrod later filed a fourth
amended complaint against the Board, and added the individual defendants named
in the present action, alleging that, in retaliation for speaking out against the
exploitation of African-American athletes and the defendants’ failure to infuse
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African and African-American history into its world history curriculum, the
defendants had violated Sherrod’s free speech, due process, and equal protection
rights by repeatedly transferring him, giving him negative evaluations, and
ultimately terminating him.
In Sherrod I, the district court dismissed the individual defendants, as
untimely added, and sua sponte struck the equal protection and due process claims,
as they exceeded the scope of the authorized amendment to the third amended
complaint. Additionally, the court found that although the fourth amended
complaint sufficiently alleged that the individuals involved in his transfers and
teaching assignments had final authority over those areas, the complaint did not
allege that there was a practice or custom of transferring employees on the basis of
race or in retaliation for exercising his constitutional rights. Accordingly, the court
granted the defendants partial summary judgment on the “practice or custom”
theory. The jury returned a verdict in favor of Sherrod on the remaining, free-
speech claim, but the district court entered judgment as a matter of law for the
Board, and denied Sherrod’s motions for a new trial, pursuant to Fed. R. Civ. P.
59(a), and relief from the court’s order granting judgment as a matter of law,
pursuant to Fed. R. Civ. P. 60. This Court dismissed Sherrod’s appeal of the
district court’s order granting judgment as a matter of law, because the appeal was
4
untimely filed, and affirmed the district court’s denial of Sherrod’s motion for
relief under Rules 59(a) and 60.
On March 8, 2007, Sherrod filed the instant suit alleging various violations
of his equal protection, free speech, and due process rights. The district court
found that all of Sherrod’s claims were barred by res judicata because they were or
could have been presented in Sherrod I had Sherrod timely sought to include them
in that action.
The preclusion of claims that “could have been brought” does not include
claims that arose after the original complaint was filed in the prior action, unless
the plaintiff actually asserted the claim in an amended pleading. Pleming, 142 at
1357. Because the following claims arose after Sherrod filed his third amended
complaint on October 24, 2003 in Sherrod I,2 and thus could not have been brought
in that action, the district court erred by dismissing them: (1) in Count I, Sherrod’s
claim against defendant St. John, compare CM/ECF for the U.S. Dist. Ct. for the
S.D. Fla., no. 9:02-cv-80764, Doc. Entry 100 at 33 (stating that Sherrod’s child,
Surya, was in the fifth grade at the time the fourth amended complaint was filed),
with R1-5 at 25-27 (stating that St. John taught Surya in the seventh grade)); (2) in
2
Although, in his untimely fourth amended complaint in Sherrod I, Sherrod referenced
some of the facts underlying the claims we hold were not barred by res judicata, his mere
discussion of those facts in his fourth amended complaint does not have res judicata effect.
See Pleing, 142 F.3d at 1358-59.
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count 2, Sherrod’s claim against defendant Crutchfield, based on her 2004
recommendation that he be terminated 3; (3) in Count 2, Sherrod’s due process
claim against all of the named defendants, with regard to their failure to inform the
district court, in the course of the Sherrod I proceedings, that Principal Hall no
longer worked for the Board; (4) Count IV’s retaliation claim as to defendants
Johnson and Crutchfield, the underlying facts of which all occurred in 2004; and
(5) the claims in Count V against defendants Johnson, Pare-Evans, and
Middletown, which arose during the course of the Sherrod I proceedings, or shortly
thereafter.4 We vacate and remand for further consideration of only the foregoing
claims, and affirm in all other respects.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
3
As best we can tell from the record we have before us, Sherrod’s intervening state law-
suit also did not preclude Sherrod’s § 1983 action against Crutchfield, because the state
administrative hearing and appeal involved Sherrod’s termination and the performance-assessment
procedures of Fla. Stat. §1012.34, while the instant action concerns alleged free speech, due process,
and equal protection violations that Crutchfield, and the other defendants, allegedly committed in
retaliation against Sherrod for speaking out on the Board’s failure to implement the education
courses enumerated in Fla. Stat. § 1003.42.
4
Sherrod’s Rule 60(b)(2) motion in Sherrod I did not preclude the claim because the basis
for the motion was that Sherrod had discovered that Principal Hall had filed a retaliation suit against
the Board, not that Johnson, Pare-Evans, and Middletown had violated his due process and equal
protection rights. See CM/ECF for the U.S. Dist. Ct. for the S.D. Fla., no. 9:02-cv-80764, Doc.
Entry 239.
6