O'KELLY v. RUSSELL TP. BD. OF TRUSTEES, C87-926.

• Decision Date: 16 December 1987
• Docket Number: No. C87-926.,C87-926.
• Citation: 675 F. Supp. 389
• Parties: Gary O'KELLY, Plaintiff, v. RUSSELL TOWNSHIP BOARD OF TRUSTEES and Rand D. Barnes, Defendants.
• Court: U.S. District Court — Northern District of Ohio

675 F. Supp. 389

Gary O'KELLY, Plaintiff, v. RUSSELL TOWNSHIP BOARD OF TRUSTEES and Rand D. Barnes, Defendants.

No. C87-926.

United States District Court, N.D. Ohio, E.D.

December 16, 1987.

John F. Norton, Cleveland, Ohio, for plaintiff.

Anthony J. Hartman, Timothy P. McCormick, Hermann, Cahn & Schneider, Cleveland, Ohio, for defendants.

ORDER

BELL, District Judge.

Plaintiff Gary O'Kelly filed this civil rights action against the Russell Township Board of Trustees (Russell Township) and Rand D. Barnes, a police officer appointed by Russell Township, claiming violations of his constitutional rights protected by the fourth, fifth and fourteenth amendments. Federal jurisdiction is based on 42 U.S.C. § 1983, 28 U.S.C. § 1343, and this court's pendent jurisdiction is invoked for plaintiff's state claim of false arrest and malicious prosecution.

Currently pending before the court are two motions: plaintiff's amended motion for partial summary judgment and defendants' motion for dismissal or, in the alternative, for summary judgment. The parties have responded to both motions.

Plaintiff's motion seeks entry of summary judgment as to the liability of Rand D. Barnes on the theory of collateral estoppel. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that as a matter of law, it is entitled to summary judgment. In reviewing a motion for summary judgment, a court must consider the pleadings, related documents and evidence and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979), cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Board of Ed. Cincinnati v. Department of H.F.W., 532 F.2d 1070 (6th Cir.1976). The inquiry performed at this stage is whether a trial is required to resolve genuine factual issues. "There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ___, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986) (citations omitted).

Plaintiff was arrested by defendant Barnes for driving while intoxicated on April 26, 1986. He refused to take a chemical breath test to determine his blood alcohol level. Such refusal resulted in the suspension of plaintiff's drivers license pursuant to Ohio Revised Code § 4511.191. The charges against plaintiff were dismissed on July 24, 1986. He then began proceedings to have his drivers license reinstated. In a suit captioned Gary P. O'Kelly v. Michael J. McCullion (Registrar of the Bureau of Motor Vehicles), judgment was entered in plaintiff's favor based on a finding that the arresting officer did not have probable cause to believe plaintiff was operating a motor vehicle. See Judgment Entry attached to plaintiff's motion. Officer Barnes testified as a witness at the evidentiary hearing held in that proceeding.

Plaintiff's contention in this motion is that to establish a violation of his fourth and fourteenth amendment rights in this case as to Officer Barnes, he must show that he was arrested without probable cause. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir.1978). Because that issue has been litigated in a state court of competent jurisdiction, plaintiff alleges that the doctrine of collateral estoppel should be applied in respect to the liability of defendant Barnes. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).

Defendant responds that collateral estoppel is inapplicable in this case for two reasons: first, because there is no mutuality of parties between the two actions; and, second, because defendant did not have a fair and full opportunity to litigate the issue of probable cause in the first proceeding. The court finds that defendants' arguments are meritorious and that plaintiff's motion for partial summary judgment must be denied for the following reasons.

Clearly the doctrine of collateral estoppel can be invoked against a party in a section 1983 case to bar relitigation of a fourth amendment claim. Allen v. McCurry, 449 U.S. 90, 103-04, 101 S.Ct. 411, 419-20, 66 L.Ed.2d 308 (1980). In fact, federal courts are generally required to give preclusive effect to state court judgments whenever the state court would do so. 28 U.S.C. § 1738; Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983). However, a state court judgment will not be given preclusive effect in a federal action where the party against whom an earlier judgment is asserted did not have a full and fair opportunity to litigate the issue decided by the first court. Id.; Allen v. McCurry, 449 U.S. at 101, 101 S.Ct. at 418; Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979).

Applying these guidelines first requires an examination of the doctrine of collateral estoppel as applied by the State of Ohio. The cases cited by defendant deal with the defensive use of collateral estoppel and require a mutuality of issues a parties before a prior judgment will preclude further litigation of an issue. Jones v. VIP Development, 15 Ohio St.3d 90, 99-100, 472 N.E.2d 1046 (1984); State v. Tyack, 13 Ohio St.3d 4, 5, 469 N.E.2d 844 (1984); Beatrice Foods Co. v. Lindley, 70 Ohio St.2d 29, 35, 434 N.E.2d 727 (1982). Whether there is a distinction when the doctrine is asserted offensively is not clear from these cases. The logic, however, would appear to apply in both situations.

In this first case, plaintiff was proceeding against the Registrar of the Bureau of Motor Vehicles for the return of his drivers license which had been revoked because of his refusal to submit to a breathalyzer test after he was arrested for driving while intoxicated. The issue was whether there was probable cause to believe plaintiff was operating a motor vehicle while intoxicated. Defendant Barnes testified as a witness but was not a party and was not represented by counsel. The only way one could find a mutuality of parties in the first case with the section 1983 case before this court is to determine that defendant Barnes' interests were so closely aligned with the Registrar that there could be deemed an identity of interests. Wilson v. Attaway, 757 F.2d 1227, 1237 (11th Cir.1985). That determination cannot be made, however. The Registrar's interest was focused upon whether or not to return plaintiff's driving privileges, a concern completely outside the interests of defendant Barnes. Thus, even if there were a mutuality of issue between the two proceedings, there was no mutuality of parties.

The primary reason why collateral estoppel cannot bar the litigation in this proceeding, however, is that defendant Barnes did not have a full and fair opportunity to litigate the issue in the first proceeding. He was merely a witness, was not represented by counsel and had no interest in the outcome. In this proceeding, he is exposed to personal liability and damages on a constitutional claim and a pendent state claim. The outcome in the first proceeding cannot, therefore, be held to bind him here. See Williams v. Kobel, 789 F.2d 463, 470 (7th Cir.1986).

Accordingly, plaintiff's motion for partial summary judgment is denied.

Defendants are also before the court on a motion for dismissal, or in the alternative, for summary judgment. When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is constrained to accept as true the allegations of a complaint. Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983), Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1065 (6th Cir. 1984). To dismiss the complaint against defendant, the court would have to find it beyond doubt that the plaintiff can prove no set of facts in support of its claim which would justify the relief sought. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Defendants allege that plaintiff either has failed to state a claim upon which relief may be granted or that no material issue of fact exists as to certain claims of liability. In conjunction with this motion, defendants have submitted plaintiff's deposition testimony; the affidavit of defendant Barnes; and the testimony taken in the plaintiff's action against the Registrar, Bureau of Motor Vehicles, to recover his drivers license. The facts established by this record follow.

Ann and Clayton Bradley entertained plaintiff Gary O'Kelly and his wife, Sharon, at their home in Bedford Heights, Ohio, on the evening of April 25, 1986. Defendants' Motion Exhibit C, Testimony of Ann Bradley. They left at approximately 1:00 A.M. or 1:30 A.M. on the morning of April 26, 1987. Id. Plaintiff had consumed some alcohol at the Bradley home, and Sharon O'Kelly was driving when they left for home. Id.; Testimony of Ann Bradley and Sharon O'Kelly. Both plaintiff and Sharon O'Kelly entered the car through the drivers side at the Bradley's. Id. Cross-examination of Ann Bradley. Sharon O'Kelly drove the entire distance to their home and into their driveway before parking in back of their house. Id. Testimony of Sharon O'Kelly. The area where she parked is not visible from the street. Id.

As soon as the O'Kelly's arrived home, Sharon quickly ran into the house to use the bathroom. Id. She observed no...