[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            April 7, 2008
                             No. 07-13747                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 07-80217-CV-DTKH

CURTIS SHERROD,

                                                           Plaintiff-Appellant,

                                  versus

THE SCHOOL BOARD OF PALM BEACH COUNTY,
TOM LYNCH,
DR. ARTHUR JOHNSON,
FRAN GIBLIN,
ESTHER BULGER, et al.,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (April 7, 2008)

Before DUBINA, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
       Curtis Sherrod, proceeding pro se, appeals the dismissal, on res judicata

grounds, of his 42 U.S.C. § 1983 civil rights action against the School Board of

Palm Beach County (“the Board”), several individuals involved in the events

leading to his termination from employment as a high school teacher in Palm

Beach County, and the Board’s attorneys in a prior § 1983 civil rights suit Sherrod

instituted against the Board.          On appeal, Sherrod argues that his prior federal

lawsuit does not preclude his current § 1983 suit because the facts underlying the

instant action arose after he filed his original complaint in the prior suit.1 After

careful review, we affirm in part and vacate and remand in part.

       We review de novo the district court’s application of res judicata.                        See

E.E.O.C. v. Pemco Aeroplex, Inc., 

, 1285 (11th Cir. 2004). Res

judicata, or claim preclusion, bars a party from relitigating a cause of action that

was, or could have been, raised in a previous suit between the parties that resulted

in a final judgment on the merits. In re Piper Aircraft Corp., 

, 1296

(11th Cir. 2001).         A party seeking to invoke res judicata must satisfy four

elements: “(1) the prior decision must have been rendered by a court of competent

jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases


       1
            Sherrod also argues the district court erred by finding that the individual defendants to
the instant action were parties to, or in privity with parties to, his earlier federal lawsuit. We find
no clear error in the district court’s privity findings. Cf. E.E.O.C. v. Pemco Aeroplex, Inc. 

, 1285 (11th Cir. 2004) (reviewing district court’s finding of privity for clear error).

                                                  2
must involve the same parties or their privies; and (4) both cases must involve the

same causes of action.” 

party satisfies these requirements, the district

court must determine whether the new claims could have been raised in the prior

suit, and if so, the claims are barred by res judicata. 

of claims

that “could have been brought” does not include claims that arose after the original

complaint was filed in the prior action, unless the plaintiff actually asserted the

claim in an amended pleading, but res judicata does not bar the claim simply

because the plaintiff elected not to amend his complaint. Pleming v. Universal-

Rundle Corp., 

, 1357 (11th Cir. 1998). This is true even if the

plaintiff discussed the facts supporting the subsequent claim in support of his

claims in the prior case. 

      Here, the district court’s res judicata dismissal was based on Sherrod’s

previous § 1983 civil rights action against the same defendants, or their privies

(“Sherrod I”). In Sherrod I, in a third amended complaint filed on October 24,

2003, Sherrod asserted a § 1983 action against the Board, alleging equal protection

and free speech violations based on retaliation.      Sherrod later filed a fourth

amended complaint against the Board, and added the individual defendants named

in the present action, alleging that, in retaliation for speaking out against the

exploitation of African-American athletes and the defendants’ failure to infuse



                                            3
African and African-American history into its world history curriculum, the

defendants had violated Sherrod’s free speech, due process, and equal protection

rights by repeatedly transferring him, giving him negative evaluations, and

ultimately terminating him.

      In Sherrod I, the district court dismissed the individual defendants, as

untimely added, and sua sponte struck the equal protection and due process claims,

as they exceeded the scope of the authorized amendment to the third amended

complaint.    Additionally, the court found that although the fourth amended

complaint sufficiently alleged that the individuals involved in his transfers and

teaching assignments had final authority over those areas, the complaint did not

allege that there was a practice or custom of transferring employees on the basis of

race or in retaliation for exercising his constitutional rights. Accordingly, the court

granted the defendants partial summary judgment on the “practice or custom”

theory. The jury returned a verdict in favor of Sherrod on the remaining, free-

speech claim, but the district court entered judgment as a matter of law for the

Board, and denied Sherrod’s motions for a new trial, pursuant to Fed. R. Civ. P.

59(a), and relief from the court’s order granting judgment as a matter of law,

pursuant to Fed. R. Civ. P. 60.      This Court dismissed Sherrod’s appeal of the

district court’s order granting judgment as a matter of law, because the appeal was



                                          4
untimely filed, and affirmed the district court’s denial of Sherrod’s motion for

relief under Rules 59(a) and 60.

       On March 8, 2007, Sherrod filed the instant suit alleging various violations

of his equal protection, free speech, and due process rights. The district court

found that all of Sherrod’s claims were barred by res judicata because they were or

could have been presented in Sherrod I had Sherrod timely sought to include them

in that action.

       The preclusion of claims that “could have been brought” does not include

claims that arose after the original complaint was filed in the prior action, unless

the plaintiff actually asserted the claim in an amended pleading. Pleming, 142 at

1357. Because the following claims arose after Sherrod filed his third amended

complaint on October 24, 2003 in Sherrod I,2 and thus could not have been brought

in that action, the district court erred by dismissing them: (1) in Count I, Sherrod’s

claim against defendant St. John, compare CM/ECF for the U.S. Dist. Ct. for the

S.D. Fla., no. 9:02-cv-80764, Doc. Entry 100 at 33 (stating that Sherrod’s child,

Surya, was in the fifth grade at the time the fourth amended complaint was filed),

with R1-5 at 25-27 (stating that St. John taught Surya in the seventh grade)); (2) in


       2
        Although, in his untimely fourth amended complaint in Sherrod I, Sherrod referenced
some of the facts underlying the claims we hold were not barred by res judicata, his mere
discussion of those facts in his fourth amended complaint does not have res judicata effect.
See 

.

                                               5
count 2, Sherrod’s claim against defendant Crutchfield, based on her 2004

recommendation that he be terminated 3; (3) in Count 2, Sherrod’s due process

claim against all of the named defendants, with regard to their failure to inform the

district court, in the course of the Sherrod I proceedings, that Principal Hall no

longer worked for the Board; (4) Count IV’s retaliation claim as to defendants

Johnson and Crutchfield, the underlying facts of which all occurred in 2004; and

(5) the claims in Count V against defendants Johnson, Pare-Evans, and

Middletown, which arose during the course of the Sherrod I proceedings, or shortly

thereafter.4 We vacate and remand for further consideration of only the foregoing

claims, and affirm in all other respects.

       AFFIRMED IN PART; VACATED AND REMANDED IN PART.




       3
           As best we can tell from the record we have before us, Sherrod’s intervening state law-
suit also did not preclude Sherrod’s § 1983 action against Crutchfield, because the state
administrative hearing and appeal involved Sherrod’s termination and the performance-assessment
procedures of Fla. Stat. §1012.34, while the instant action concerns alleged free speech, due process,
and equal protection violations that Crutchfield, and the other defendants, allegedly committed in
retaliation against Sherrod for speaking out on the Board’s failure to implement the education
courses enumerated in Fla. Stat. § 1003.42.
       4
         Sherrod’s Rule 60(b)(2) motion in Sherrod I did not preclude the claim because the basis
for the motion was that Sherrod had discovered that Principal Hall had filed a retaliation suit against
the Board, not that Johnson, Pare-Evans, and Middletown had violated his due process and equal
protection rights. See CM/ECF for the U.S. Dist. Ct. for the S.D. Fla., no. 9:02-cv-80764, Doc.
Entry 239.

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