Fonda J. Killebrew v. ST. VINCENT HEALTH, INC. and ST. JOSEPH HOSPITAL & HEALTH CENTER, INC.

*The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we have
concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 21, 2008 *
Decided September 25, 2008
Before
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐1960
FONDA J. KILLEBREW,
Plaintiff‐Appellant,
v.
ST. VINCENT HEALTH, INC. and
ST. JOSEPH HOSPITAL & HEALTH
CENTER, INC.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Indiana,
Indianapolis Division.
No. 1:08‐cv‐255‐LJM‐WTL
Larry J. McKinney,
Judge.
O R D E R
Fonda Killebrew was fired from her job as a housekeeper at a Kokomo, Indiana,
hospital operated by St. Vincent Health, Inc. She sued the hospital and St. Vincent claiming,
as the district court understands her complaint, that at the hospital she was “subjected to
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1960 Page 2
discrimination, a hostile work environment and retaliation based on her race.” See 42 U.S.C.
§§ 1981, 2000e‐2. Killebrew told the court that she could not afford to pay the filing fee, so
the court allowed her to proceed in forma pauperis. It then reviewed her complaint prior to
service, see 28 U.S.C. § 1915(e)(2)(b), and concluded that the action is barred by the doctrine
of claim preclusion. According to the court Killebrew’s claims “were or could have been
asserted” in a pair of consolidated race‐discrimination suits she filed in 2003 and 2004. See
Killebrew v. St. Joseph Hosp. & Health Ctr., Inc., 1:04‐cv‐48‐LJM‐WTL (S.D. Ind. filed Jan. 8,
2004); Killebrew v. St. Vincent Health, 1:03‐cv‐1497‐DFH‐VSS (S.D. Ind. filed Oct. 10, 2003).
Those actions were dismissed with prejudice for failure to prosecute, see Killebrew v. St.
Vincent Health, 1:03‐cv‐1497‐DFH‐VSS (S.D. Ind. Sept. 27, 2004) (unpublished order); so, the
court’s reasoning goes, Killebrew already had her bite at the apple and is not entitled to
another. The court thus dismissed Killebrew’s complaint for failure to state a claim. Our
review is de novo. See DeWalt v. Carter, 224 F.3d 607, 611‐12 (7th Cir. 2000).
We accept, for the moment, the district court’s generous reading of Killebrew’s
complaint, but we do not agree that the doctrine of claim preclusion would bar the action as
framed by the district court. Claim preclusion is an affirmative defense that the defendant
generally must raise or risk waiving. FED. R. CIV. P. 8(c); Curtis v. Timberlake, 436 F.3d 709,
711 (7th Cir. 2005); Rizzo v. Sheahan, 266 F.3d 705, 714 (7th Cir. 2001). A district court, upon
reviewing a complaint before service, has discretion to invoke claim preclusion to dismiss
the case, but only if the defense “is so plain from the language of the complaint and other
documents in the district court’s files that it renders the suit frivolous.” Gleash v. Yuswak,
308 F.3d 758, 760 (7th Cir. 2002). And claim preclusion bars an action only if there was a
final judgment on the merits in an earlier case and both the parties and claims in the two
lawsuits are the same. See Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 822 (7th Cir. 2006).
Two of these criteria are met: the dismissal of Killebrew’s prior consolidated suits
was a judgment on the merits, see FED. R. CIV. P. 41(b); In re Bagdade, 334 F.3d 568, 573 (7th
Cir. 2003), and the parties in both cases are the same. But we see nothing in the complaint
in this new suit which suggests that the claims Killebrew attempts to raise now are
necessarily the same as those she raised previously. Claims raised in separate lawsuits are
the same for purposes of claim preclusion if they are rooted in the same factual allegations.
See Tartt, 453 F.3d at 822. In her prior consolidated actions, Killebrew alleged that in 2003
the hospital and St. Vincent discriminated against her because she is black and then
retaliated when she filed a charge of discrimination with the Equal Employment
Opportunity Commission. Now she alleges that she was fired, and any claim arising from
her termination could not possibly be the “same” for purposes of claim preclusion because
she was still employed at the hospital in 2003. Indeed, Killebrew elaborates in her brief that
she was fired in March 2006, more than two years after her prior suits were filed. See Smith

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No. 08‐1960 Page 3
v. Potter, 513 F.3d 781, 783 (7th Cir. 2008) (noting that claim preclusion does not bar suit
based on claims that arise after a prior suit was filed). Furthermore, she again alleges that
the defendants subjected her to a hostile work environment, and it is not evident from the
face of the complaint that this allegation relates to events that were, or even could have
been, the subject of the consolidated suits. To the contrary, it would be possible for
Killebrew to prove, consistent with the allegations in her complaint, that the defendants
treated her worse in the two years leading up to her discharge and that this treatment (alone
or in combination with treatment she suffered before 2003) created a hostile working
environment. See id. (“The filing of a suit does not entitle the defendant to continue or
repeat the unlawful conduct with immunity from further suit.”).
We, however, can affirm the district court’s judgment for any reason supported in
the record, and we agree that this case should be dismissed, but on a different basis. See
Vargas‐Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974 (7th Cir. 2001). The district
court read Killebrew’s complaint broadly, but, in our view, its interpretation went too far.
As we read her new complaint, Killebrew is not claiming that her termination violated
federal law. Her allegations are incoherent and rambling—she lists “[b]uilidng brought
from KKK unsafe working conditions not following my doctor orders” as one of her claims.
Although she does appear to allege that she was harassed at work and then fired, she does
not assert that race or any other protected ground was the motivating factor behind the ill‐
treatment. Killebrew makes only one passing reference to “racism” in her complaint and
does not even mention race in her brief to this court, instead insisting that she was unfairly
fired for “quitting without notice” and that she received poor representation from her
attorney. Killebrew is proceeding pro se, so we construe her filings liberally, see Kaba v.
Stepp, 458 F.3d 678, 681, 687 (7th Cir. 2006), but her complaint does not even hint at a
plausible right to relief and thus fails to satisfy the lenient notice‐pleading requirement of
Federal Rule of Civil Procedure 8(a), see Bell Atl. Corp. v. Twombly, 127 S .Ct.1955, 1964‐65
(2007); Killingsworth v. HSBC Bank Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007), and borders
on frivolousness, see Neitzke v. Williams, 490 U.S. 319, 325 (1989) (noting that a complaint is
frivolous when it “lacks an arguable basis either in law or in fact” ); Edwards v. Snyder, 478
F.3d 827, 830 (7th Cir. 2007). Therefore, the district court properly dismissed it. See 28
U.S.C. § 1915(e)(2)(B)(i), (ii).
AFFIRMED.

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