454 F.2d 313 (7th Cir. 1971)
Plaintiff filed a complaint seeking damages and claiming that a previous arrest by defendants deprived him of rights secured by the constitution. Defendants asserted that the matter was res judicata by virtue of the dismissal of a prior complaint based on the same arrest. The prior complaint was dismissed for failure to state a claim upon which relief could be granted. The two complaints were identical in substance, except an averment that the arrest was made without probable cause was included in the second complaint, but not the first. The trial court sustained the defense of res judicata and dismissed the action.
On appeal, the court held that the order of the trial court which dismissed the complaint for failure to state a claim, but did not specify that the dismissal was without prejudice, operated as res judicata, barring the later complaint.
Dismissal of plaintiff's complaint affirmed because the previous dismissal of plaintiff's complaint for failure to state a claim operated as res judicata, barring the later complaint.
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