105 F.3d 291 (6th Cir. 1997), 95-5718, Donovan v. Thames

Docket Nº:95-5718.
Citation:105 F.3d 291
Party Name:Terry DONOVAN, Plaintiff-Appellant, v. Timothy THAMES and Patrick Collura, Defendants-Appellees.
Case Date:January 27, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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105 F.3d 291 (6th Cir. 1997)

Terry DONOVAN, Plaintiff-Appellant,


Timothy THAMES and Patrick Collura, Defendants-Appellees.

No. 95-5718.

United States Court of Appeals, Sixth Circuit.

January 27, 1997

Argued May 21, 1996.

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Robert A. Arnold (argued and briefed), Sutton, Hicks & Lucas, Crestview Hills, KY, for Plaintiff-Appellant.

Frank A. Wichmann, Wichmann & Schaffer, Erlanger, KY, Henry L. Walker, II (argued and briefed), Brown, Todd & Heyburn, Covington, KY, for Defendants-Appellees.

Before KRUPANSKY, DAUGHTREY, and MOORE, Circuit Judges.

MOORE, Circuit Judge.

Plaintiff/Appellant Terry Donovan appeals the district court's grant of summary judgment based on the doctrine of res judicata 1 in this 42 U.S.C. § 1983 case involving claims against Defendants/Appellees Timothy Thames and Patrick Collura of constitutional violations based on excessive force and arrest without probable cause. We affirm in part and reverse in part.


In November 1991, the Erlanger Police Dispatcher received a 911 call reporting a disturbance in front of the residence of Donovan and his parents. Officers Thames and Collura were dispatched. When the officers reached the house, they requested consent to enter because they believed that Donovan had been in an argument with his mother. Donovan invited the officers to come inside the house, and his mother did not object. Donovan claims that everything was quiet when the officers arrived and that, after allowing the officers to enter the residence, he repeatedly asked them to leave. In contrast, the officers contend that the hostilities between the plaintiff and his mother were escalating. The officers claim that Donovan struck his mother with his elbow. Donovan denies this allegation and claims that any contact with his mother was accidental. Barbara Donovan, Terry's mother, testified that Donovan did not touch her.

Thames arrested Donovan and handcuffed him by placing him face down in a chair and positioning his knee in Donovan's back. Collura was present during the arrest. The officers assert that Donovan was resisting arrest and that they used only the degree of force necessary to effectuate the arrest. On the other hand, Donovan asserts that Thames used more force than was necessary. Donovan claims that he was thrown headfirst into the chair whereupon his head hit the wooden frame, that Thames caused him pain and injury by kneeing him in the back, and that Thames would not release him from this position. During her deposition, Donovan's mother also testified about the force Thames used to handcuff her son:

He reached over and just snatched him and slung him into that chair. The chair is a--like a Victorian chair trimmed in, I guess, hard cherry wood. And when he slung him, his head struck the wood on the back of the chair, cracking it in two places.

He then--somehow or another, his--when--well, when he got on his back, his right side was on the arm of the chair, which is also wood, and he got on his back. He put his knee in his back. He took his left arm and twisted it as far as he could up to his neck and was trying to cuff it, but Terry had on an enormous amount of clothes on that night, and he couldn't get the--he just couldn't get the cuff on.

J.A. at 132-33.

Donovan was charged in a state-court criminal action with domestic violence and abuse, resisting arrest, possession of marijuana, and possession of drug paraphernalia. In that case, Donovan's counsel moved to suppress the evidence recovered from the house, alleging that the officers obtained all

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of the evidence after consent to enter the home had been withdrawn. After a suppression hearing, Judge Frank Trusty denied Donovan's motion to suppress and found, in a written Opinion and Order dated October 26, 1993, that the officers had probable cause to arrest Donovan pursuant to Kentucky Revised Statute § 431.005. 2 J.A. at 49-50. Donovan was tried by the Kenton County District Court and convicted of resisting arrest and the drug-related charges. However, Donovan was acquitted of the charge of domestic violence. Donovan filed this § 1983 action on November 23, 1992. The district court suspended discovery on March 2, 1993, pending resolution of the related criminal action, which had been filed in Kenton County District Court in Kentucky on November 25, 1991. Judge Trusty entered judgment in the state-court criminal action on November 8, 1993. Donovan did not appeal his convictions. On April 21, 1995, the U.S. district court judge granted the defendants' motion for summary judgment in the instant case.


The Supreme Court has held that issues decided in a state-court criminal proceeding may preclude relitigation of the same issues in a subsequent § 1983 action in federal court. Allen v. McCurry, 449 U.S. 90, 102, 101 S.Ct. 411, 419, 66 L.Ed.2d 308 (1980). In Allen, the respondent had been convicted in a state-court criminal proceeding in which he had moved to suppress certain evidence on the ground that it had been obtained in violation of his Fourth Amendment rights. Id. at 92, 101 S.Ct. at 413-14. The trial court denied the motion to suppress, and the respondent subsequently brought a § 1983 action in federal court against the officers who had seized the evidence. Id. The Supreme Court held that the suit was barred by issue preclusion because the issue of a Fourth Amendment violation had been resolved against the respondent by the denial of his motion to suppress in the state-court criminal trial. Id. at 105, 101 S.Ct. at 420-21. The Court reasoned that issue preclusion was mandated in this context by the federal full faith and credit statute, which provides that

judicial proceedings [of any court of any State] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in courts of such State, Territory or Possession from which they are taken.

Id. at 96, 101 S.Ct. at 415-16 (quoting 28 U.S.C. § 1738). The Allen Court further reasoned that

nothing in the language of § 1983 remotely expresses any congressional intent to contravene the common-law rules of preclusion or to repeal the express statutory requirements of the predecessor of 28 U.S.C. § 1738.... Section 1983 creates a new federal cause of action. It says nothing about the preclusive effect of state-court judgments.

Allen, 449 U.S. at 97-98, 101 S.Ct. at 416-17. Moreover, the Court noted that the legislative history of § 1983 does not suggest that Congress intended to restrict the applicability of the traditional doctrines of preclusion. Id. at 98, 101 S.Ct. at 416-17. Rather, the Court felt that the legislative history as a whole lent "only the most equivocal support to any argument that, in cases where the state courts have recognized the constitutional claims asserted and provided fair procedures for determining them, Congress intended to override § 1738 or the common-law rules of collateral estoppel and res judicata." Id. at 99, 101 S.Ct. at 417. The Court concluded that because "repeals by implication are disfavored ... much clearer support than this would be required to hold that § 1738 and the traditional rules of preclusion are not applicable to § 1983 suits." Id. Thus, Allen

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established that issues actually litigated in a state-court proceeding are entitled to preclusive effect in a subsequent federal § 1983 suit to the extent provided by the law of preclusion in the state where the judgment was rendered.

We recognize that England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), requires a different approach where a plaintiff chooses to proceed initially in a federal forum and the federal court forces the plaintiff to proceed first in state court based on abstention. Id. at 415, 84 S.Ct. at 464-65 (applying abstention doctrine announced in Railroad Commission v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645-46, 85 L.Ed. 971 (1941)). In England, plaintiffs filed a lawsuit in federal court claiming that a...

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