United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR JUDGMENT ON THE PLEADINGS
AND DENYING MOTION TO TRANSFER OF JUDICIAL OFFICERS
R. SWEENEY II JUDGE
Motion for Judgment on the Pleadings
October 2, 2018, plaintiff Robert Peacher filed a complaint
alleging that he suffers from nerve neuropathy in his face
that causes extreme pain and migraines if he does not keep
his face shaved. However, his nerve neuropathy is exacerbated
if he attempts to shave using a disposable or straight razor
on his face or attempts to apply depilatory cream. He has had
this condition for many years and was treated with
medications and permitted to use an electric trimmer on his
face to manage the nerve disease. He further explains that an
outside specialist, a dermatologist at the Indiana University
Hospital, along with his former primary doctor, ordered him
to use an electric trimmer on his face each day. Mr. Peacher
alleged that Dr. Talbot has refused to renew the medical
order permitting him to shave with his electric trimmers each
day and refused to prescribe pain medication in the
alternative. Dr. Talbot changed Mr. Peacher's medical
order to have the barbers at the barbershop shave him once
per week, but the weekly shaving did not happen weekly, nor
did the weekly shaving alleviate his pain and suffering. Mr.
Peacher sought help from Lieutenant Jason Ernest, who had the
authority to help him get his medically ordered barbershop
shave, but Lieutenant Ernest apparently refused to help.
Ernest has now filed a motion for judgment on the pleadings
arguing that Mr. Peacher's claim against him is barred by
res judicata based on the Court's resolution in
2014 of Mr. Peacher's lawsuit against Superintendents
Alan Finnan and Keith Butts in Peacher v. Finnan et
al., 1:11-cv-00601-SEB-DKL (“Peacher
I”). Dkt. 62. Mr. Peacher filed two responses in
opposition. Dkts. 65, 70. Mr. Ernest filed a reply. Dkt. 77.
Mr. Peacher filed a surreply. Dkt. 83.
the pleadings are closed but early enough not to delay trial,
a defendant may move for judgment on the pleadings for reason
that a complaint fails to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(c). “[A] motion for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c) is subject to the same standard as a Rule
12(b)(6) motion to dismiss.” Katz-Crank v.
Haskett, 843 F.3d 641, 646 (7th Cir. 2016). “To
survive a Rule 12(b)(6) motion, the complaint must
‘state a claim for relief that is plausible on its
face.'” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). The Court must
“accept the allegations in the complaint as true unless
they are ‘threadbare recitals of a cause of
action's elements, supported by mere conclusory
statements.'” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009)). A reviewing court
draws all reasonable inferences and facts in favor of the
non-movant but need not accept as true any legal assertions.
Vesely v. Armslist LLC, 762 F.3d 661, 664-65 (7th
5, 2011, Mr. Peacher filed a complaint in this Court alleging
that Superintendent Alan Finnan was deliberately indifferent
to his serious medical needs in violation of the Eighth
Amendment. Peacher I, dkt. 1. In his amended
complaint, filed June 14, 2011, Mr. Peacher alleged that
former Superintendent Alan Finnan and Superintendent Keith
Butts were deliberately indifferent to his serious medical
needs by failing to provide him an electric razor to treat
his facial pain. Id., dkt. 13-1. He also brought a
retaliation claim against Mr. Finnan. Id. On
September 30, 2014, the Court granted the defendants'
motion for summary judgment because Mr. Peacher failed to
identify a genuine issue of material fact as to his claims.
Id., dkt. 150.
Ernest argues that Mr. Peacher's claim against him is
barred by res judicata because Mr. Peacher already
litigated the issue of his inability to get an electric razor
and cannot sue a new set of prison employees about the same
fundamental precept of common-law adjudication, embodied in
the related doctrines of collateral estoppel and res
judicata, is that a right, question or fact distinctly
put in issue and directly determined by a court of competent
jurisdiction…cannot be disputed in a subsequent suit
between the same parties or their privies[.]”
Montana v. United States, 440 U.S. 147, 153 (1979).
The three requirements for res judicata under
federal law are: “(1) an identity of the causes of
actions; (2) an identity of the parties or their privies; and
(3) a final judgment on the merits” in the first
lawsuit. Bell v. Taylor, 827 F.3d 699, 706 (7th Cir.
2016) (internal quotation omitted). If any one of these three
requirements are not met, then res judicata is
allow the application of res judicata, there must
exist an “identity of the causes of action.”
Bell, 827 F.3d at 706. “[T]he test for an
identity of the causes of action is whether the claims arise
out of the same set of operative facts or the same
transaction.” Kilburn-Winnie v. Town of
Fortville, 891 F.3d 330, 333 (7th Cir. 2018) (internal
quotation omitted). Stated another way, “two claims are
one for purposes of res judicata if they are based
on the same, or nearly the same, factual allegations.”
Barr v. Bd. of Trs., 796 F.3d 837, 840 (7th Cir.
2015) (citing Herrmann v. Cencom Cable Assocs., 999
F.2d 223, 226 (7th Cir. 1993)). “Res judicata
bars any claims that were litigated or could have
been litigated in a previous action.”
Kilburn-Winnie, 891 F.3d at 333 (internal quotation
Peacher I, Mr. Peacher alleged that the two
Superintendents failed to provide him an electric shaver for
his facial pain. In this action, Mr. Peacher has realleged
that he is not being provided with an electric shaver. That
claim is directed to Dr. Talbot and Michelle LaFlower. His
claim against Mr. Ernest and Michael Conyers in this action
is that Dr. Talbot issued an order for Mr. Peacher to get
regular shaves at the barbershop, but the defendants have
failed to ensure that he gets his regular shaves pursuant to
Dr. Talbot's medical order. Although not explicitly
stated, it is likely that Dr. Talbot's change in medical
order occurred after 2014. Thus, Mr. Peacher's claim in