Kunzelman v. Thompson

• Decision Date: 25 August 1986
• Docket Number: Nos. 85-1624,85-1662,s. 85-1624
• Citation: 799 F.2d 1172
• Parties: Frederick L. KUNZELMAN, Plaintiff-Appellant, Cross-Appellee, v. Gervase THOMPSON, Richard Giese and Juneau County, Wisconsin, Defendants- Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1172

799 F.2d 1172

Frederick L. KUNZELMAN, Plaintiff-Appellant, Cross-Appellee, v. Gervase THOMPSON, Richard Giese and Juneau County, Wisconsin, Defendants- Appellees, Cross-Appellants.

Nos. 85-1624, 85-1662.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 13, 1986.

Decided Aug. 25, 1986.

Richard B. Jacobson, Borns, Porter, Macaulay & Jacobson, Madison, Wis., for plaintiff-appellant, cross-appellee.

Rick J. Mundt, Thurow, Sauthoff & Alexander, Madison, Wis., for defendants-appellees, cross-appellants.

Before CUMMINGS, Chief Judge, BAUER and POSNER, Circuit Judges.

CUMMINGS, Chief Judge.

Plaintiff brings this 42 U.S.C. Sec. 1983 action claiming that the defendants violated his constitutional right to assist other inmates by prosecuting him for practicing law without a license. The district court entered a judgment notwithstanding the verdict holding that as a matter of law plaintiff had not established lack of access to the courts. For the reasons set out below we affirm.

Statement of the Case and Facts

Frederick L. Kunzelman brought this 42 U.S.C. Sec. 1983 action against defendants Sheriff Gervase Thompson, Chief Deputy Richard Giese, and Juneau County, Wisconsin. Plaintiff, an inmate at the Juneau County Jail, alleges that defendants violated his First and Fourteenth Amendment rights by criminally prosecuting him for assisting two inmates write post-conviction writs. After a two-day trial the jury returned a verdict for plaintiff and awarded him $1,000 compensatory and $10,000 punitive damages against each individual defendant. Judgment was entered on December 5, 1984. On December 12, 1984, defendants moved for judgment notwithstanding the verdict, which was granted January 18, 1985. Following denial of post-trial motions, plaintiff appealed. Defendants have cross-appealed from the denial of a motion for a new trial.

Frederick Kunzelman is an inmate at the Juneau County Jail. On September 30, 1983, Juneau County District Attorney Daniel Berkos charged plaintiff with practicing law without a license, a misdemeanor violation of Wisc. Stat. Sec. 757.30(2). The complaint was initiated by Berkos and signed by defendant Chief Deputy Sheriff Giese after the plaintiff rendered legal assistance ¹ to two other inmates. Kunzelman assisted both Ronald Spencer (April 1983) and Jose Guevara (September 1983) prepare post-conviction petitions for credit for pre-sentence detainment. Both inmates were ultimately successful in their petitions and were released. Kunzelman received no compensation for his assistance.

The defendants concede that Berkos felt a great deal of animus toward the plaintiff because of an abundance of litigation on Kunzelman's own behalf. ² Berkos was present at the hearing on Guevara's petition when he discovered Kunzelman's writ-writing activities. Both he and Giese ordered an investigator, Kim Stropolis, to look into the Guevara situation. As a result of this investigation they were informed that Guevara approached Kunzelman for help, Kunzelman was not compensated, another inmate had been assisted earlier, and Kunzelman's position was that these activities were constitutionally protected under Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. Nevertheless, a criminal complaint was sworn out against Kunzelman on September 30, 1983, and served on October 7, 1983. ³ Judge Latton dismissed the charge in March 1984, finding that Kunzelman's activities were clearly protected. This Sec. 1983 action soon followed.

Kunzelman raises two issues on appeal. First, he argues the district court erred in denying his motion in limine that defendants were collaterally estopped from relitigating the constitutional issue. Second, he argues that the district court erred in granting the motion for judgment notwithstanding the verdict. We affirm.

I. Defendant Sheriff Thompson

The district court ruled that plaintiff's evidence was insufficient to show personal involvement by Sheriff Gervase Thompson. In its judgment notwithstanding the verdict, the district court ruled that Thompson was not directly involved in the decision to prosecute Kunzelman. At oral argument plaintiff's counsel conceded that the evidence against Thompson was slim. The only evidence linking Thompson to the criminal prosecution attempt was his county relationship with Berkos. Plaintiff contends that the fact that Thompson and Berkos had lunch on a daily basis and discussed (at least informally) Kunzelman's prosecution was evidence of Thompson's involvement. The plaintiff further argues that Thompson's involvement can be inferred from his failure to discourage Berkos actively. This evidence could in no way support a finding of liability on the part of Thompson. While plaintiff argues that Thompson's inaction should be sufficient personal involvement, such involvement requires more than motive, more than a desire to take action, more than support and encouragement--it takes some act to infer that the defendant has assisted the violation. Hampton v. Hanrahan, 600 F.2d 600, 630 (7th Cir.1979), reversed on other grounds, 446 U.S. 754, 101 S.Ct. 411, 66 L.Ed.2d 308. It is arguable that given a duty to act, inaction would be sufficient evidence of personal active involvement, but such is not the case here. Thompson had no duty or responsibility to ensure that the district attorney's office exercised its prosecutorial discretion in a manner that did not offend citizens' constitutional rights. The district court was correct in holding that as a matter of law there was not sufficient evidence to show that Thompson was personally involved in initiating Kunzelman's prosecution.

II. Collateral Estoppel

Kunzelman first contends that collateral estoppel precludes defendants from relitigating the issue of whether his writ-writing activities were constitutionally protected. Plaintiff claims that under Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308, dismissal of the criminal charge should act to bar the defendants from introducing evidence as to the adequacy of the Juneau County Jail inmates' access to the courts. The district court denied plaintiff's motion in limine to that effect. Defendants respond by arguing first, that they did not have a full and fair opportunity to litigate the issue in the state criminal proceeding and second, that they were not parties nor privies in the prior proceeding. We agree with defendants that collateral estoppel should not apply.

Under the doctrine of collateral estoppel, once a court has decided an issue necessary to its judgment, that decision is conclusive in a subsequent suit on a different cause of action involving a party to the prior litigation. United States v. Mendoza, 464 U.S. 154, 158, 104 S.Ct. 568, 571, 78 L.Ed.2d 379; Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210. ⁴ In Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308, the Supreme Court held that collateral estoppel is as applicable to Sec. 1983 actions as it is to other types of suits. In determining when collateral estoppel applies federal courts must look to state law and determine whether another state court would give preclusive effect to the prior proceeding. Id. at 96, 101 S.Ct. at 415; Migra v. Warren City School Dist., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56, see 28 U.S.C. Sec. 1738. In general, collateral estoppel precludes relitigation of issues in a subsequent proceeding when: (1) the party against whom the doctrine is asserted was a party to the earlier proceeding; (2) the issue was actually litigated and decided on the merits; (3) the resolution of the particular issue was necessary to the result; and (4) the issues are identical. County of Cook v. Midcon Corp., 773 F.2d 892, 898 (7th Cir.1985); Whitley v. Seibel, 676 F.2d 245, 248 & n. 1 (7th Cir.1982), certiorari denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198; Reckner v. Reckner, 105 Wis.2d 425, 314 N.W.2d 159, 165 (1981) (collateral estoppel bars relitigation of issues "litigated, determined, and necessary to the [prior] decision").

But when a federal court has serious doubts about the fairness, quality, or extensiveness of the earlier state court proceedings, it will not apply collateral estoppel. Montana v. United States, 440 U.S. 147, 164 n. 11, 99 S.Ct. 970, 979 n. 11, 59 L.Ed.2d 210; Lumen Construction, Inc. v. Brant Construction Co., 780 F.2d 691, 697 (7th Cir.1985). Due process does not permit application of collateral estoppel against a party who did not have a full and fair opportunity to litigate the issue in the earlier proceeding. Kremer v. Chemical Construction Corp., 456 U.S. 461, 481 n. 22, 102 S.Ct. 1883, 1897 n. 22, 72 L.Ed.2d 262; Haring v. Prosise, 462 U.S. 306, 313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595; Jones v. City of Alton, 757 F.2d 878, 884 (7th Cir.1985).

A. We must first address an issue not specifically raised by the parties, but relevant to our discussion. In Sec. 1983 actions typically the government as defendant attempts to assert collateral estoppel against a plaintiff who had been convicted (or received some similar unfavorable ruling during the criminal proceeding, e.g. denial of a motion to suppress based on Fourth Amendment grounds) in a previous state criminal trial. See Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308; Whitley v. Seibel, 676 F.2d 245 (7th Cir.1982), certiorari denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198. The differing burdens of proof do not present a problem in this scenario because it is assumed that if the government could have initially proven guilt beyond a reasonable doubt (or no Fourth Amendment violation) it would have no trouble defending the issue when the plaintiff carries the burden in a Sec. 1983 action. Issue preclusion may be defeated by shifts in the burden of persuasion or by changes in the degree of persuasion required to prevail. Guenther v. Holmgreen, 738 F.2d 879, 888-889 (7th Cir.1984), ...