21 F.3d 430 (7th Cir. 1994), 92-1040, King v. Young

• Citation: 21 F.3d 430
• Party Name: Frederick J. KING, Plaintiff-Appellant, v. Gerald YOUNG and John Patterson, Defendants-Appellees.
• Case Date: April 05, 1994
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 430

21 F.3d 430 (7th Cir. 1994)

Frederick J. KING, Plaintiff-Appellant,

v.

Gerald YOUNG and John Patterson, Defendants-Appellees.

No. 92-1040.

United States Court of Appeals, Seventh Circuit

April 5, 1994

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Argued March 1, 1994.

Rehearing and Suggestion for Rehearing En Banc

Denied July 6, 1994.

Appeal from the United States District Court, for the Southern District of Indiana, Indianapolis Division, No. 86 C 1471; Sarah Evans Barker, Judge.

S.D.Ind. [APPEALING AFTER REMAND FROM, 897 F.2d 885].

AFFIRMED.

Before BAUER, FLAUM and EASTERBROOK, Circuit Judges.

ORDER

Frederick King appeals from the district court's grant of summary judgment in favor of the defendants in this civil rights action filed pursuant to 42 U.S.C. §§ 1983, 1985. The issue presented is whether the district court erred in determining that under Indiana rules of collateral estoppel, King is barred from relitigation of his claim that the police officers wrongfully procured his arrest and conviction by fabricating evidence and suborning perjury.

I. BACKGROUND

King, an employee of Hoosier Coin Shop, a second hand retail shop, was arrested following a "reverse sting" operation during which undercover police officers, Patterson and Jarman twice sold King items they claimed were "hot." The sales transactions were recorded by Sergeant Young. In November of 1982, King was tried before a jury and convicted of one count of attempting to receive stolen property in violation of Indiana Code §§ 35-43-4-2(b) and 35-41-5-1, and acquitted of a second identical charge. He was sentenced on January 4, 1983, to two years of imprisonment. This sentence was suspended and instead King performed eighty hours of community service, served two years of probation, and paid a fine of $250.00.

Finding sufficient evidence to support his conviction, the Court of Appeals of Indiana affirmed. King v. State, 469 N.E.2d 1201 (Ind.App.1984). King's petition for a rehearing was denied as was his petition for transfer to the Indiana Supreme Court. King next filed a petition for post conviction relief, arguing that he was entitled to a new trial because Patterson and Jarman had given sworn testimony during a license revocation hearing for Hoosier Coin Shop which contradicted their testimony at his trial. Had this evidence been presented to the jury, he maintained, it would have created reasonable doubt and might have resulted in a different verdict. After a hearing, the post-conviction court concluded that this issue had been heard by the court on direct appeal and thus was res judicata. The court also noted that this was not "newly discovered" evidence, since King knew the substance of the testimony prior to trial but only later obtained the transcript. In any event, the court found that had the transcript been available at trial it would have provided merely impeaching evidence and would not have affected the outcome of the trial. In an unpublished order the state appellate court affirmed denial of post-conviction relief (No. 49A04-8607-PC-229, Dec. 30, 1986), and the Indiana Supreme Court denied review.

King then filed this civil rights suit under 42 U.S.C. § 1983 against the prosecutor and two police officers alleging that they had violated his constitutional rights by: (1) intentionally misrepresenting and concealing information from the Magistrate, thereby causing his arrest without probable cause; (2) fabricating and withholding evidence; and (3) committing and suborning perjury. The district court granted summary judgment to the defendants on the basis of immunity and the common law defense of conviction. This court affirmed dismissal on grounds of immunity as to Goldsmith, the prosecutor, ¹ but remanded the suit against the officers, holding that Indiana common law cannot bar relitigation of the issue of King's guilt if his conviction had been procured by fraud. King v. Goldsmith, 897 F.2d 885, 886 (7th Cir.1990). On remand, the district court again granted summary judgment to the defendants, this time on the ground that collateral estoppel precluded King from relitigating his claims. (District Court Order, Oct. 30, 1991). King argues that application of collateral estoppel to his claims was improper. ²

II. ANALYSIS

In determining whether a § 1983 claim is precluded by a prior state court criminal conviction and subsequent state proceedings, the federal court is required to "give state court judgments 'the same full faith and credit ... as they have by law or usage in the courts of such state.' " Welch v. Johnson, 907 F.2d 714, 719 (7th Cir.1990) (quoting 28 U.S.C. § 1738); see Leal v. Krajewski, 803 F.2d 332, 334 (7th Cir.1986). Thus, to determine the appropriate preclusive effect to be given to a state judgment, the federal court must consider: (1) whether state law would give the prior state judgment preclusive effect against the claims asserted in the federal action, and (2) whether the party against whom preclusion is asserted had a full and fair opportunity to litigate the claim in state court (i.e., whether the state proceedings satisfied the minimum requirements of Due Process). Allen v. McCurry, 449 U.S. 90, 104 (1980); Welch, 907 F.2d at 719; Guenther v. Holmgreen, 738 F.2d 879, 884-85 (7th Cir.1984), cert. denied, 469 U.S. 1212 (1985).

Indiana bars relitigation if: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) there is identity of the issues actually litigated and necessarily determined to support the judgment in the prior proceeding; and (3) the party to be estopped was a party or the privy of a party in the prior action. Sullivan v. American Casualty Co., 605 N.E.2d 134, 137 (Ind.1992). King was convicted by a jury of attempt to receive stolen property; that conviction was affirmed and post conviction relief denied. King v. State, 469 N.E.2d 1201 (Ind.App.1984). Thus, a final judgment was clearly rendered in this case. Where collateral estoppel is used defensively, as in this case, Indiana courts have historically not required mutuality and privity. Sullivan, 605 N.E.2d at 137. Finally, to determine whether the issues raised in King's § 1983 action were essentially identical to those previously litigated, each claim will be evaluated in turn.

A. Unlawful Arrest

King first challenges the basis of the warrant for his arrest. ³ He claims that officer Patterson intentionally omitted the fact that King "did not respond to or otherwise acknowledge his understanding and his actions were consistent and expected of him in his livelihood." (King's Br. at 32). The district court likened this claim to the issue of whether Patterson had lied about whether he told King the silverware was "hot." (Order Oct. 30, 1991, at 7). The district court concluded that King was collaterally estopped from relitigating the issue of whether the defendants had fabricated evidence to obtain an arrest warrant for three reasons: the jury necessarily found Patterson's testimony credible, the appellate court found the evidence sufficient to support the jury's verdict, and this conclusion was held to be res judicata by the post-conviction court. King argues that this essentially equates the jury's determination of guilt with a challenge to the integrity of the evidence relied on to establish probable cause.

As we noted in King I, where the arrest and conviction is allegedly procured through fraud, the focus is on the legality of the officers' conduct not on the legality of the conviction. Thus, equating the sufficiency of the evidence to convict with the issue of whether Patterson intentionally or recklessly omitted information from the warrant application was arguably error. Because these issues are distinct, and there is no evidence that the issue of probable cause to arrest has been previously litigated and actually determined, Indiana collateral estoppel law cannot preclude litigation of King's false arrest claim. See Schertz v. Waupaca County, 875 F.2d 578, 581 (7th Cir.1989) (collateral estoppel did not bar litigation of probable cause to arrest because claim not fairly and thoroughly addressed in preliminary hearing); Whitley v. Seibel, 676 F.2d 245, 248-49 (7th Cir.),cert. denied, 459 U.S. 942 (1982); cf. Guenther, 738 F.2d at 884 (issue barred because it had been actually litigated in the state criminal preliminary hearing).

Yet the defendants maintain that the existence of probable cause was subsumed in the verdict reached by the jury and thus conclusively determined. ⁴ Conviction of the underlying offense, they argue, bars King's claim that he was falsely arrested. The Second Circuit in Cameron v. Fogarty, 806 F.2d 380 (2d Cir.1986), cert. denied, 481 U.S. 1016 (1987), provides some support for this position. ⁵ See also Malady v. Crunk, 902 F.2d 10 (8th Cir.1990) (extending preclusive effect to guilty plea); Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir.1988) (same); Brumfield v. Jones, 849 F.2d 152, 155 n. 4 (5th Cir.1988) (discussing inter-circuit decisions on issue); McGill v. Mountainside Police Dep't, 720 F.Supp. 418 (D.N.J.1989) (discussing split among the circuits). But see Rose v. Bartle, 871 F.2d 331, 351 (3d Cir.1989) (criticizing Cameron ). And in essence, this is the reasoning relied on by the district court to find that the issue of probable cause had been previously determined. However, it was this reasoning that was rejected in King's first appeal. ⁶ And the defendants offer no persuasive reason why the court should reconsider its earlier decision.

In support of its position that probable cause had been previously determined, the government argued that the affidavit Patterson submitted in seeking a warrant for King's arrest supported a finding of probable cause and...