[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 1, 2008
No. 07-11888 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 06-00818-CV-ORL-28-JGG
JOSEPH KONIKOV,
CHANA KONIKOV,
Plaintiffs-Appellants,
versus
ORANGE COUNTY, FL,
EDWARD CANEDA, individual and/or agent of Orange County, FL,
GEORGE LAPORTE, individual and/or agent of Orange County, FL,
MICHAEL SCOTT, individual and/or agent of Orange County FL,
ROBERT SPIVEY, individual and/or agent of Orange County, FL,
MELVIN PITTMAN, et al.,
Defendants-Appellees.
______________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
ON PETITION FOR REHEARING
AND SUGGESTION OF REHEARING EN BANC
(May 1, 2008)
Before BIRCH, WILSON and COX, Circuit Judges.
PER CURIAM:
This case is before us on Appellants’ petition for rehearing and rehearing en
banc. We grant Appellants’ petition for panel rehearing. We substitute the following
opinion for our previously issued opinion in this appeal, Konikov v. Orange County,
No. 07-11888 (11th Cir. Oct. 22, 2007).
Joseph Konikov sued Orange County, Florida, and some of its employees in
2002, alleging violations of constitutional and statutory law with regard to a zoning
regulation prohibiting the use of his residence for religious purposes (Konikov I). The
district court in Konikov I granted summary judgment against Konikov and was
affirmed in part and reversed in part by this court. Konikov v. Orange County, 410
F.3d 1317 (11th Cir. 2005). The action was remanded to the district court and
concluded without an appeal. The Konikovs filed this suit, arising out of the same
facts as Konikov I, against Orange County and other employees (Konikov II). The
district court dismissed the suit with prejudice, based on res judicata. The Konikovs
appeal.
This court reviews de novo a district court’s res judicata determination. EEOC
v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir. 2004). A case is barred from
re-litigation under the doctrine of res judicata if: “(1) there is a final judgment on the
2
merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the
parties, or those in privity with them, are identical in both suits; and (4) the same
cause of action is involved in both cases.” Ragsdale v. Rubbermaid, Inc., 193 F.3d
1235, 1238 (11th Cir. 1999). Counts I-VI of Appellants’ amended complaint are
barred by res judicata to the extent they assert causes of action against the County and
the individual defendants in their official capacity. Id. at 1238 (“Res judicata bars the
filing of claims which were raised or could have been raised in an earlier
proceeding.”).
Further, Counts I-VI are barred by collateral estoppel to the extent they assert
causes of action against the individual defendants in their personal capacity.
Collateral estoppel bars re-litigation of issues actually litigated and necessary to the
judgment of prior litigation when the party against whom the earlier decision is
asserted had a full and fair opportunity to litigate in the earlier proceeding. Precision
Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1501 (11th Cir. 1984). The issues
presented in Counts I-VI have already been litigated, and in fact were resolved on
remand following our opinion in Konikov I, 410 F.3d 1317. See Quinn v. Monroe
County, 330 F.3d 1320, 1328 (11th Cir. 2003) (“Collateral estoppel, i.e., issue
preclusion, refers to the effect of a judgment in foreclosing relitigation of a matter
that has been litigated and decided.”).
3
Also, Count VIII, negligent supervision/retention, is barred by res judicata.
This count asserts a cause of action only against the County, which was a party in
Konikov I, and the Appellants could have asserted this claim at that time. See
Manning v. City of Auburn, 953 F.2d 1355, 1358 (11th Cir. 1992) (“Res judicata, or
claim preclusion, bars relitigation of matters that were litigated or could have been
litigated in an earlier suit.”) (emphasis added).
The only remaining count is Count VII, civil conspiracy. In this count,
Appellants seek damages from the individual defendants in their personal capacity.
Because the defendants are sued in their personal capacity, they are not in privity with
the County, which was sued in Konikov I. See Willner v. Budig, 848 F.2d 1032, 1034
n.2 (10th Cir. 1988) (“Government employees in their individual capacities are not
in privity with their government employer.”); 18A Wright et al., Federal Practice and
Procedure § 4458, at 567 & n.20 (2d ed. 2002) (“[A] judgment against a government
or one government official does not bind a different official in subsequent litigation
that asserts a personal liability against the official . . . .”); see also Hurt v. Pullman,
Inc., 764 F.2d 1443, 1448 (11th Cir. 1985) (“Under basic principles of res judicata
jurisprudence, for a party to be bound by or take advantage of a prior suit that party
or its privy must not only have been present in both suits, but it has to appear in the
same capacity in both suits.”). Therefore res judicata does not bar this claim.
4
Additionally, Count VII alleges a conspiracy only between the individual defendants,
not between the County and its officials, as alleged in Konikov I. Because Appellants
have not litigated this claim, it is not barred by collateral estoppel.
The district court’s order dismissing with prejudice Appellants’ amended
complaint is reversed with respect to Count VII, but is otherwise affirmed. No Judge
in regular active service on the court having requested that the court be polled on
rehearing en banc, Fed. R. App. P. 35, Appellants’ petition for rehearing en banc is
denied.
PETITION FOR PANEL REHEARING GRANTED. PETITION FOR
REHEARING EN BANC DENIED. DISTRICT COURT JUDGMENT AFFIRMED
IN PART, REVERSED IN PART.
5