Rhoda Nelsen v. Barbara Pierce

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 28, 2024*
Decided June 5, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1063
RHODA NELSEN,
Plaintiff-Appellant,
v.
BARBARA PIERCE,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 23-cv-1685-bhl
Brett H. Ludwig,
Judge.
O R D E R
Rhoda Nelsen (formerly Stahmann) has repeatedly sued various defendants,
alleging that they unlawfully detained and maliciously prosecuted her in violation of
her rights under the Fourth and Fourteenth Amendment rights. See 42 U.S.C. § 1983.
* Appellant submitted a notice of name change, effective February 20, 2024, in
another pending appeal (No. 24-1253), and we update the caption accordingly. The
appellee was not served with process and is not participating in this appeal. After
examining the appellant’s brief and the record, we have concluded that the case is
appropriate for summary disposition. See FED. R. A PP. P. 34(a)(2).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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Her lawsuits pertain to her arrest and prosecution in Fond Du Lac County, Wisconsin,
for falsely reporting a stimulus check stolen. Relevant here is Nelsen’s complaint
against Barbara Pierce, a state prosecutor, seeking $2.5 million in damages. The district
court screened the complaint under 28 U.S.C. § 1915(e)(2) and dismissed it, concluding
it was barred by the claim preclusion doctrine. Although the previous suit’s preclusive
effect is somewhat ambiguous, Nelsen has not persuaded us that the court erred;
further, we can easily discern from the complaint alone that dismissal here was proper
because the prosecutor is absolutely immune from this suit. We therefore affirm.
In October 2021, Nelsen reported to a deputy sheriff that someone had stolen and
cashed her federal stimulus check; she wished to file a police report to provide to the
IRS in her pursuit of a replacement check. A detective investigated and found video of
what appeared to be Nelsen cashing the check at a bank branch in a retail store. Nelsen
denied that the video depicted her. The detective thought Nelsen was lying and
recommended that she be charged with obstructing a police officer. Nelsen was
eventually charged with that offense. A jury acquitted her on September 11, 2023.
In the meantime, Nelsen sued Pierce and others in one of several lawsuits she has
filed since being charged. Stahmann v. Menzel, No. 23-cv-1192-bhl, 2023 WL 7219884,
at *2 (E.D. Wis. Nov. 2, 2023). We will refer to that case as Menzel. She alleged that
detectives lied and falsified evidence against her and that prosecutors, including Pierce,
used that false information to maliciously prosecute her. Id. at *3. Because Nelsen
applied to proceed in forma pauperis, the district court screened her complaint,
see 28 U.S.C. § 1915(a)(1), (e)(2), noted that it was “difficult to follow,” and dismissed it,
explaining that Nelsen “has not alleged any violations of federal or constitutional law
over which the Court has subject-matter jurisdiction.” Menzel, 2023 WL 7219884, at *2–3.
To the extent it discerned any claims, the court concluded that they arose under state
law only. In its separate judgment, the court stated that the suit was dismissed “with
prejudice for failure to state a claim.” Judgment, Menzel, No. 23-cv-1192-bhl (E.D. Wis.
Nov. 2, 2023), ECF No. 9. Nelsen did not appeal.
In December 2023 Nelsen brought the current lawsuit against Pierce alone. Her
complaint here, like the one in Menzel, is disjointed, but she again alleges that, during
her trial, Pierce knowingly used the detective’s “false statement and evidence” to try to
convict her. This time, however, Nelson asserted that Pierce violated her constitutional
rights and cited 42 U.S.C. § 1983. The district court dismissed this complaint at
screening, relying on claim preclusion. As the court saw it, Nelsen’s complaint arose out

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of the same operative facts as Menzel, Pierce was a named defendant in that case, and
the case had ended with a final judgment on the merits.
On appeal, Nelsen takes issue with the district court’s conclusion that claim
preclusion bars her lawsuit. She does not develop her argument other than to
emphasize that the district court wrongly focused on “a different complaint” that was
not against “the wrongdoer in this case” and that she brings constitutional claims in this
suit. But under the federal common law of claim preclusion, a prior judgment bars
subsequent litigation of claims that arise from the same transaction and could have been
brought in the first action. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981).
The new legal theories do not matter. Complaints needn’t plead law; even though
Nelsen articulates her legal theories more clearly this time around, her “claim”—her
grievance against the defendant—is the same. See Johnson v. City of Shelby, 574 U.S. 10,
11 (2014) (“[N]o heightened pleading rule requires plaintiffs seeking damages for
violations of constitutional rights to invoke § 1983 expressly … .”). And Pierce was a
party in the prior case, regardless of whether Nelsen developed allegations against her.
We question the applicability of claim preclusion on another ground, though:
There must be “a prior final judgment on the merits.” Daza v. Indiana, 2 F.4th 681, 683
(7th Cir. 2021). A dismissal for failure to state a claim is a judgment on the merits, but a
dismissal for lack of jurisdiction is not. Bell v. Hood, 327 U.S. 678, 682 (1945); Campbell v.
Keagle Inc., 27 F.4th 584, 586–87 (7th Cir. 2022). Consequently, a dismissal for failure to
state a claim is with prejudice, while dismissal for lack of subject-matter jurisdiction is
without prejudice to the merits (even if it is a final decision for appeal purposes). Semtek
Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001); Lewert v. P.F. Chang's
China Bistro, Inc., 819 F.3d 963, 969 (7th Cir. 2016). Here, there is ambiguity about
whether Menzel was dismissed for failure to state a claim or lack of jurisdiction. The
court’s written rationale repeatedly refers to the absence of any “federal” claim and thus
a lack of jurisdiction. True, that order ends by saying that the case was dismissed “with
prejudice,” which is consistent with a merits dismissal, but that is incongruous with the
court’s statements that the absence of federal claims deprived it of jurisdiction.
See 2023 WL 7219884, at *3–4. It appears from the complaint here that Nelsen
interpreted the order to require her to explain the federal nature of her claims.
But despite the ambiguity in the rationale for the dismissal of Menzel, the Rule 58
judgment controls. Reed v. Columbia St. Mary's Hosp., 782 F.3d 331, 336 (7th Cir. 2015)
(“[L]itigants may and should rely on the specific wording of a Rule 58 judgment to
determine whether a judgment is final and appealable.”) In that document, the court

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stated that it dismissed the case “with prejudice for failure to state a claim,” i.e., on the
merits. See Semtek, 531 U.S. at 505–06. Thus, we cannot say that the district court erred
by citing the judgment in Menzel as preclusive. The district court explained why the
other requirements for claim preclusion were satisfied, and Nelsen does not
meaningfully challenge those determinations. Her claims are therefore barred.
To the extent there is any doubt about claim preclusion, the dismissal was proper
also because Pierce is absolutely immune from this suit. Under 28 U.S.C.
§ 1915(e)(2)(B)(iii), a court must dismiss a case filed in forma pauperis “at any time” it
determines that the plaintiff “seeks monetary relief against a defendant who is immune
from such relief.” Prosecutors like Pierce, when sued in their individual capacity, are
immune from civil suits under § 1983 for their conduct “in initiating a prosecution and
in presenting the State’s case.” Imbler v. Pachtman, 424 U.S. 409, 431 (1976); see Foreman v.
Wadsworth, 844 F.3d 620, 624 (7th Cir. 2016). Such conduct includes the knowing use of
false testimony at trial, the basis of Nelsen’s claim here. See Imbler, 424 U.S. at 431 &
n.34; Archer v. Chisholm, 870 F.3d 603, 612 (7th Cir. 2017) (explaining that prosecutorial
immunity extends even to “malicious prosecution unsupported by probable cause”).
Finally, we note that Nelsen has filed six lawsuits and four appeals regarding her
prosecution for obstructing police. All have been, at least in part, frivolous—like her
effort in this case to obtain damages from a defendant with absolute immunity—and all
have come out against Nelsen. Yet her losing has not sufficiently deterred her
duplicative filings. Therefore, Nelsen has 14 days to show cause why we should not
impose sanctions, including a fine.
AFFIRMED

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