Metro Charities, Inc. v. Moore, Civ. A. No. J90-0141(L).

• Decision Date: 24 August 1990
• Docket Number: Civ. A. No. J90-0141(L).
• Citation: 748 F. Supp. 1156
• Parties: METRO CHARITIES, INC. and Robert Malone, Plaintiffs, v. Mike MOORE, Individually; Jim Warren, Individually; Don Bartlett and Ken Winter, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

748 F. Supp. 1156

METRO CHARITIES, INC. and Robert Malone, Plaintiffs, v. Mike MOORE, Individually; Jim Warren, Individually; Don Bartlett and Ken Winter, Defendants.

Civ. A. No. J90-0141(L).

United States District Court, S.D. Mississippi, Jackson Division.

August 24, 1990.

COPYRIGHT MATERIAL OMITTED

Michael Farrell, Peter L. Doran, Wells, Moore, Simmons, Stubblefield & Neeld, Jackson, Miss., for plaintiffs-Metro Charities and Robert Malone.

Susan D. Fahey, Phelps, Dunbar, Jackson, Miss., for Ken Winter.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of defendants Mike Moore, Attorney General of the State of Mississippi, and Jim Warren, Special Assistant Attorney General, in their individual capacities, to dismiss or, in the alternative, for summary judgment pursuant to Rules 12 and 56 of the Federal Rules of Civil Procedure, respectively. Plaintiffs Metro Charities, Inc. (Metro) and Robert M. Malone have responded to the motion and the court has considered the memoranda of authorities together with attachments submitted by the parties.

This case arises out of a state civil action brought by Mike Moore, Mississippi's attorney general, against these plaintiffs and others in which Moore sought to enjoin bingo games conducted by plaintiffs. The record in this cause reflects that plaintiff Malone is assistant director of plaintiff Metro Charities, Inc., a non-profit unincorporated association formed in 1988 for the stated purpose of "sponsoring and encouraging charitable, civic and educational work." As a means of raising funds, Metro sponsored bingo games in Jackson, Greenville and Meridian. Plaintiffs allege that although officials from the attorney general's office had previously assured them that their bingo operations were permitted by state law, on January 10, 1990, Moore, as attorney general of the State of Mississippi, filed a complaint for declaratory and injunctive relief in the Chancery Court of the First Judicial District, Hinds County, Mississippi, naming as defendants Metro and Malone, d/b/a Bingo Depot, inter alia. The complaint sought to have bingo declared a lottery and hence violative of the Mississippi Constitution¹ and to have Miss.Code Ann. § 97-33-51 (Supp. 1989), which purports to exempt certain bingo games from the general statutory prohibition against gambling, declared unconstitutional.² Additionally, the attorney general sought to enjoin bingo sponsors, including the plaintiffs herein, from violating the constitution by continuing their bingo operations. The chancellor immediately issued a temporary restraining order, enjoining Metro and Malone from conducting bingo games and from destroying, altering or disposing of any books, records, cash or equipment relating to their bingo operations, and further enjoining them from "withdrawing, transferring, or disposing of any real or personal property" including any and all bank accounts or other monies which amounted to bingo proceeds. The chancellor's order was issued without notice, as provided for by Rule 65(b) of the Mississippi Rules of Civil Procedure, upon the affidavit of Jim Warren wherein Warren stated that prior notice to Metro or Malone would likely result in their absconding with evidence.³

On the same day that the chancellor issued the temporary restraining order, January 10, 1990, search warrants were issued by judges in Jackson, Meridian and Greenville for Metro properties at which bingo games were operated. According to plaintiffs' complaint, agents of the attorney general's office applied for the search warrants and prevailed on the Jackson Police Department and the Hinds County District Attorney's office to participate in the execution of the warrants in order to search the premises and seize any evidence of alleged violations of the Mississippi Constitution to assist in the prosecution of the civil lawsuit. That evening, the temporary restraining order and the warrants were served and executed by persons from the attorney general's office, the Jackson Police Department, the Hinds County District Attorney's office, the Hinds County Sheriff's office and the Mississippi Highway Patrol. All property and fixtures contained within the premises were seized. Thereafter, additional warrants were obtained pursuant to which Malone's and Metro's bank accounts were seized.

Ultimately, on April 27, 1990, the chancellor issued a permanent injunction over the vigorous objections of plaintiffs herein. The chancellor's order is presently on appeal to the Mississippi Supreme Court. Additionally, a criminal indictment was returned by a Washington County grand jury against Metro and Malone for racketeering activities, and in particular, the conduct of an illegal lottery. The criminal proceedings remain pending in the state courts, as does a civil forfeiture action which was commenced against the property seized in the course of the civil proceeding.

Plaintiffs have brought this action pursuant to 42 U.S.C. § 1983, charging that defendants Mike Moore and Jim Warren violated their Fourth, Fifth and Fourteenth Amendment rights by (1) conspiring to obtain a temporary restraining order without notice, (2) combining forces with local law enforcement officials in Jackson, Greenville and Meridian in order to approach state court judges for the purpose of causing the issuance and execution of search warrants so as to further a civil suit, (3) improperly using the search warrants, not to search for evidence of criminal activity, but to "dismantle" Metro's operation without any prior showing of criminal activity and without having first established probable cause, (4) seizing assets of Metro and Malone which were not shown to have any connection to any bingo activities, (5) engaging in selective prosecution since other bingo operators were not similarly sued, and warrants were not issued as to those who were, and (6) abusing the legal process by filing a civil suit to further political goals. Plaintiffs assert that defendants acted in bad faith and outside the scope of their prosecutorial function by wrongfully invoking the injunctive powers of a civil court for political reasons, unlawfully seizing money and property, using criminal investigative efforts to aid in the civil action, and using the civil action for the purpose of fostering a criminal investigation. It is plaintiffs' theory that the defendants engaged in such conduct, all of which violated their constitutional rights, for the ulterior motive of putting political pressure on the state legislature to allow the people of the state to vote on a constitutional amendment to authorize a state-sponsored lottery. Defendants Moore and Warren contend that plaintiffs' claims are barred by collateral estoppel and/or res judicata, that they are entitled to prosecutorial immunity from plaintiffs' claims and that they are entitled to qualified good faith immunity from plaintiffs' claims.

Collateral Estoppel/Res Judicata

The principle of res judicata precludes parties or their privies from relitigating issues that were or could have been raised in an action in which there has been a final judgment on the merits. Under the related concept of collateral estoppel, once a court has decided an issue essential to its judgment, that decision precludes relitigation of that issue in a suit on a different cause of action involving a party to the first case. In an early case addressing the preclusive effect to be accorded a prior state court judgment in a subsequent federal civil rights proceeding, the United States Supreme Court, in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), stated:

We in no way intend to suggest that there is a right of access to a federal forum for the disposition of all federal issues, or that the normal rules of res judicata and collateral estoppel do not operate to bar relitigation in actions under 42 U.S.C. § 1983 of federal issue arising in state court proceedings.

Huffman, 420 U.S. at 606 n. 18, 95 S.Ct. at 1209 n. 18; see also Preiser v. Rodriquez, 411 U.S. 475, 497, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439 (1973) (implicitly approving view of federal courts that principles of res judicata are fully applicable to civil rights suits under section 1983). Thereafter, in Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), the Court observed that there is no universal right to litigate a federal claim in a federal district court, and made it clear that the issue-preclusive collateral estoppel doctrine, barring relitigation of issues that were actually litigated in a state court proceeding, applies in a subsequent federal section 1983 action. The Court explained:

There is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all.

Allen, 449 U.S. at 104, 101 S.Ct. at 420. Finally, in Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the Court specifically held that federal section 1983 actions are subject to rules of claim preclusion as well as issue preclusion, stating:

Having rejected in Allen the view that state-court judgments have no issue preclusive effect in § 1983 suits, we must reject the view that § 1983 prevents the judgment ... in a state court proceeding from creating a claim preclusion bar.

Migra, 465 U.S. at 79, 104 S.Ct. at 895. The court explicitly held that "section 1983 ... does not override state preclusion law and guarantee a party a right to proceed to judgment in state court on her state law claims and then turn to federal court for adjudication of her federal claims." Id. at 85, 104 S.Ct. at 898.

To determine in a particular case whether a prior state court judgment is to...