Lambert v. Conrad, 75-1639

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before CASTLE, Senior Circuit Judge, and PELL and TONE; PELL
• Citation: 536 F.2d 1183
• Parties: Lawrence W. LAMBERT, Plaintiff-Appellant, v. David R. CONRAD and Martha Carlson, Defendants-Appellees.
• Docket Number: No. 75-1639,75-1639
• Decision Date: 21 July 1976

Page 1183

536 F.2d 1183 Lawrence W. LAMBERT, Plaintiff-Appellant,
v.
David R. CONRAD and Martha Carlson, Defendants-Appellees. No. 75-1639. United States Court of Appeals,
Seventh Circuit. Argued Jan. 12, 1976.
Decided June 24, 1976.
Rehearing Denied July 21, 1976.

Page 1184

Edward F. Diedrich, DeKalb, Ill., for plaintiff-appellant.

John B. Angelo, Chicago, Ill., for defendants-appellees.

Before CASTLE, Senior Circuit Judge, and PELL and TONE, Circuit Judges.

PELL, Circuit Judge.

The crucial issue in this appeal is whether plaintiff's present civil rights action for damages is barred by the dismissal of a prior similar action for injunctive relief.

Plaintiff brings this action under 42 U.S.C. § 1983, alleging jurisdiction under 28 U.S.C. § 1343. He alleges that he was improperly denied a pre-termination hearing before his discharge from Northern Illinois University, where he was employed as a computer operator; that the post-termination hearing provided was inadequate; and that he was discriminated against because of his sex. Defendant Carlson was the assistant director of computer services for the University, and defendant Conrad was the assistant personnel director. The complaint also contained other allegations which are not relevant to the defendants on this appeal. The complaint prayed for punitive as well as actual damages.

The district court dismissed the action on the grounds that it was barred by res judicata. In an earlier action the plaintiff had sought injunctive relief against the Board of Regents of the University. Plaintiff argues that the present action is not barred by res judicata for several reasons: the dismissal of the prior action was on the ground of lack of jurisdiction and therefore not on the merits under Fed.R.Civ.P. 41(b), the district court did not have jurisdiction in the prior action, the present action is for damages and the prior action was for injunctive relief, and the defendants in this action are different from the defendant in the prior action. Plaintiff also argues that the defense of res judicata was not properly raised.

Plaintiff's prior action was dismissed by Judge Julius Hoffman of the Northern District of Illinois. After discussing from the bench the various allegations of plaintiff's complaint, Judge Hoffman indicated that 42 U.S.C. § 1981 was of no avail to plaintiff because he had made no allegations of racial discrimination. He also indicated that plaintiff was barred from invoking Title VII because he had failed to comply with the jurisdictional obligations in 42 U.S.C. § 2000e-5. He then turned to plaintiff's allegations under section 1983 and discussed an employee's due process rights. He indicated that plaintiff's interest did not approach the threshold level of a legitimate claim of entitlement which would give rise to a property interest. He stated that even

Page 1185

if plaintiff's interest could be considered a protected one, the hearing provided to him was sufficient to satisfy due process requirements. He found that the facts alleged showed no denial of equal protection. Finally, he found that the court did not need to consider whether the Board of Regents was a proper person within the meaning of section 1983 since the plaintiff failed to state a claim in any event.

Plaintiff fails to distinguish properly between a dismissal for want of jurisdiction and a dismissal for failure to state a claim upon which relief can be granted. In Bell v. Hood, 327 U.S. 678, 682-88, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court held that a court may dismiss a claim that is alleged under the Constitution or federal statutes for want of jurisdiction where the claim appears immaterial and made solely for the purpose of obtaining jurisdiction or where the claim is wholly insubstantial and frivolous. Otherwise, the court indicated, the failure to state a proper cause of action calls for a judgment on the merits and not a dismissal for want of jurisdiction. From the language of the district judge, we conclude that the dismissal by him was on the merits. See Rinehart v. Locke, 454 F.2d 313, 315 (7th Cir. 1971).

Plaintiff argues that in any event the action was not properly before Judge Hoffman because the Board of Regents was not a proper party within the meaning of section 1983. This court recently declined to take a position on that issue in Hill v. Trustees of Indiana University, --- F.2d ----, No. 75-1010 (7th Cir. April 5, 1976), although it is clear that...