Robert F. Mulligan v. Board of Trustees of Indiana University

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 2, 2024*
Decided October 2, 2024
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 24-1923
ROBERT F. MULLIGAN,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF INDIANA
UNIVERSITY, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:24-cv-00096-TWP-MJD
Tanya Walton Pratt,
Chief Judge.
O R D E R
Robert Mulligan appeals the dismissal of his suit under 42 U.S.C. § 1983 against
the Board of Trustees of Indiana University, Kathryn Girten, and Michelle Malott. The
district court dismissed the suit as blocked by claim preclusion. Because Mulligan’s
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1923 Page 2
lawsuit draws from the same set of operative facts as an earlier lawsuit he filed, we
agree with the district court that his claims are claim-precluded. We thus affirm.
In 2018, Mulligan was removed from his position as dean of the School of
Business and Economics at Indiana University East. Afterward, he filed suit in federal
court against the Board of Trustees of Indiana University and two people involved in
his removal, alleging that they violated his rights to due process and breached his
contract. Mulligan v. Ind. Univ. Bd. of Trs., No. 1:19-cv-01834-TWP-MPB, 2021 WL
1225929, at *3 (S.D. Ind. Mar. 31, 2021). The district court entered summary judgment
for the defendants and dismissed Mulligan’s claims with prejudice. Id. at *8.
Rather than appeal the dismissal, Mulligan filed the present suit against the same
defendants, raising a new legal theory about his dismissal: retaliation for asserting
constitutionally protected rights. He also alleged that the defendants are withholding
certain “protections” from him—on appeal he appears to mean his personnel records.
The district court dismissed Mulligan’s suit as claim-precluded. It reasoned that this
case stemmed from the same set of operative facts as his earlier suit, and Mulligan
could have raised his new legal theory in that previous case.
On appeal, Mulligan argues that the district court improperly applied claim
preclusion to dismiss his suit. We review a dismissal based on claim preclusion de
novo, meaning we take a fresh look at the legal issues. Bell v. Taylor, 827 F.3d 699, 706
(7th Cir. 2016). Because a federal court resolved the first suit, we apply federal common
law of claim preclusion to determine whether the court properly dismissed the suit.
Daza v. Indiana, 2 F.4th 681, 683 (7th Cir. 2021). Claim preclusion (also called res
judicata) bars a claim that a plaintiff could have litigated in a previous suit when three
criteria are met: “(1) an identity of the causes of action; (2) an identity of the parties or
their privies; and (3) a final judgment on the merits.” Bell, 827 F.3d at 706 (citation
omitted).
Mulligan disputes only the first element, but his argument is unavailing. He
maintains that the claims in this case are different from those in his first suit because
they are based on ongoing unlawful conduct. But as the district court correctly
concluded, both suits arise from the same core of past, operative facts: Mulligan’s
removal as dean of the School of Business and Economics. Mulligan’s current suit
advances a different legal theory about past conduct—retaliation—but that does not
transform the theory into a new claim. See Bernstein v. Bankert, 733 F.3d 190, 226–27 (7th
Cir. 2013). Because his claim arises from past conduct, he could have brought his claim

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No. 24-1923 Page 3
of retaliatory discharge in the previous suit. See Highway J Citizens Grp. v. U.S. Dep’t of
Transp., 456 F.3d 734, 741 (7th Cir. 2006) (“res judicata bars not only those issues which
were actually decided in a prior suit, but also all issues which could have been raised in
that action” (citation and internal quotation marks omitted)). The district court thus
properly dismissed this suit.
We recognize that in this suit Mulligan alleges some conduct that appears to
post-date the earlier suit—the defendants’ alleged refusal to turn over Mulligan’s
personnel files, a protection to which he believes he is entitled. To the extent that
Mulligan seeks to sue the defendants under Indiana law for withholding his personnel
files, he does not assert, let alone explain, that this state-law claim satisfies the
diversity-of-citizenship and amount-in-controversy requirements for federal
jurisdiction. See 28 U.S.C. § 1332. That claim, therefore, does not belong by itself in
federal court. We thus AFFIRM the judgment but MODIFY it to clarify that it is without
prejudice as to any state-law claims.

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