Moss v. Kopp

Decision Date18 March 2009
Docket NumberNo. 07-4098.,07-4098.
Citation559 F.3d 1155
PartiesSusan I. MOSS and Jamal S. Yanaki, Plaintiffs-Appellants, v. Heinz KOPP; Kendra Herlin; Aaron D. Kennard, solely in his capacity as Sheriff of Salt Lake County; and Salt Lake County, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Roger H. Hoole (Gregory N. Hoole with him on the briefs), Hoole & King, L.C., Salt Lake City, UT, for Plaintiffs-Appellants.

T.J. Tsakalos, Deputy District Attorney, Salt Lake City, UT, for Defendants-Appellees.

Before LUCERO, HOLLOWAY, and EBEL, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiffs-appellants Jamal Yanaki and Susan Moss brought this 42 U.S.C. § 1983 civil rights action against two Salt Lake County sheriff's deputies, the Salt Lake County Sheriff, and Salt Lake County. Yanaki and Moss allege that the sheriff's deputies participated in an illegal search of Yanaki's residence pursuant to court orders issued in a civil case in which Yanaki was a defendant.

All four defendants moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), variously arguing that collateral estoppel applied or, alternatively, they were entitled to quasi-judicial or qualified immunity. The district court held that collateral estoppel did not apply but all the defendants were nevertheless entitled to quasi-judicial immunity, and dismissed the claims against the defendants for failure to state a claim. Moss v. Kopp, 505 F.Supp.2d 1120 (D.Utah 2007). This timely appeal ensued, and we have jurisdiction pursuant to 28 U.S.C. § 1291. The central question before this court is whether the judge below erred in dismissing the § 1983 claims.


Several years ago Yanaki was a defendant before a Utah district court in an unrelated civil case filed by a corporation named Iomed. During that action the judge in that case issued two orders, the execution of which by Utah law enforcement forms the basis of the claims in this case.2

On Monday, April 15, 2002, Heinz Kopp, a Salt Lake County sheriff's deputy, and a private attorney3 appeared at the home of Yanaki and Moss with a court order captioned "Order Allowing Immediate Discovery to Prevent the Destruction or Alteration of Evidence" (Discovery Order). The Discovery Order was obtained from Judge Medley, a Utah state district court judge, upon an ex parte motion by the plaintiffs in the Utah case, and it directed law enforcement to take custody of various property at Yanaki's home address.4 Yanaki was not then at his house. After reading portions of the order, Moss advised Kopp that Yanaki was not home and that she would not allow them into her house without him being present. The private attorney then stated that "[w]e can come in now, or we can come in later," and Kopp stated that "[w]e can kick in this door." The attorney told Moss that he was going to obtain a further civil order and left, while Kopp remained at the home.

The private attorney returned with another order captioned "Supplemental Order in Aid of Enforcement" (Supplemental Order).5 Kopp threatened to detain Moss if she interfered, and Moss stepped aside as Kopp and three other individuals entered the house. Another sheriff's deputy, Kendra Herlin, later arrived and also threatened to detain Moss if she attempted to interfere. Kopp then took property belonging to Yanaki, Moss, and others to a private citizen's place of business.

After the search, Yanaki and Moss filed a civil rights suit under 42 U.S.C. § 1983 against Iomed (the plaintiff in the underlying Utah state case) and several private citizens, alleging that the search of their residence violated their rights under the United States Constitution. See Yanaki v. Iomed, 415 F.3d 1204, 1205 (10th Cir.2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1910, 164 L.Ed.2d 663 (2006). This court affirmed the district court's grant of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) because we held that "[t]he involvement of the police in executing the court-ordered search, without more, does not convert [the private defendants'] abuse of state law into conduct attributable to the state for purposes of § 1983 liability," and "[b]ecause [Yanaki and Moss] allege nothing more than `private misuse' of state laws, their complaint [therefore] fails to satisfy the first part of the color of law test." Id. at 1209-10.

After losing that appeal, Yanaki and Moss filed this § 1983 civil rights action in the federal district court for the District of Utah against the sheriff's deputies, Kopp and Herlin, the Salt Lake County Sheriff, Aaron Kennard, and Salt Lake County itself. The defendants each moved for dismissal, variously arguing that: (1) the suit is barred by collateral estoppel, (2) the deputies involved in the alleged search and seizure are protected by quasi-judicial immunity, and (3) the deputies' conduct is protected by qualified immunity. The district court determined that collateral estoppel was not applicable, but further held that the defendants were entitled to dismissal on quasi-judicial immunity grounds. Yanaki and Moss appealed, and we now address the district court's dismissal.


We review a dismissal under Fed.R.Civ.P. 12(b)(6) de novo. Schneider, 493 F.3d at 1177. In reviewing a dismissal, we must accept as true all well-pleaded facts, as distinguished from conclusory allegations, and those facts must be viewed in the light most favorable to the non-moving party. Shero, 510 F.3d at 1200. Our inquiry is whether the complaint contains enough facts to state a claim for relief that is plausible on its face. Schneider, 493 F.3d at 1177. "Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Id.

A. Collateral Estoppel/Issue Preclusion

The first issue in this appeal is whether the defendants-appellees are entitled to an affirmance of the complaint's dismissal on the basis of collateral estoppel.6 Collateral estoppel, or issue preclusion,7 is designed to prevent needless relitigation and bring about some finality to litigation. United States v. Botefuhr, 309 F.3d 1263, 1282 (10th Cir.2002). Collateral estoppel bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim. Park Lake Res. Ltd. Liab. Co. v. USDA, 378 F.3d 1132, 1136 (10th Cir.2004).

Collateral estoppel will bar a claim if four elements are met: (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Frandsen v. Westinghouse Corp., 46 F.3d 975, 978 (10th Cir.1995).8 The only element that is reasonably in question is the first element—whether the issue decided in Yanaki is identical with the one presented in the action in question.

In Yanaki, Yanaki and Moss sued various private parties (not the state defendants in this case) under § 1983. 415 F.3d at 1205. As the Supreme Court has explained, § 1983 "provides that `[every] person' who acts `under color of' state law to deprive another of constitutional rights shall be liable in a suit for damages." Tower v. Glover, 467 U.S. 914, 919, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (quoting 42 U.S.C. § 1983). As this statement makes clear, the party from whom damages are sought must have acted under color of state law. Therefore, the relevant inquiry in Yanaki was whether the private defendants (the only parties sued) acted under color of law.

We affirmed the dismissal of the complaint because we found that the plaintiffs had failed to allege sufficiently that the private defendants had acted under color of state law because the conduct of the private defendants in obtaining the relevant court orders could not be attributed to the state so as to satisfy the first part of the under-color-of-law test. See Yanaki, 415 F.3d at 1209-10 (holding that "[t]he involvement of the police in executing the court-ordered search, without more, does not convert [the private defendants'] abuse of state law into conduct attributable to the state for purposes of § 1983 liability," and "[b]ecause [Yanaki and Moss] allege nothing more than `private misuse' of state laws, their compliant fails to satisfy the first part of the color of law test"); see also id. at 1211 (Holloway, J., dissenting) ("I disagree with the Majority's conclusion that Plaintiffs failed to sufficiently allege concerted action between the private Defendants and the police in order to support a finding that the Defendants were acting `under color of state law.'"); Yanaki v. Iomed, Inc., 319 F.Supp.2d 1261, 1265 (D.Utah 2004) ("Plaintiffs allege that [the private] Defendants' use of state discovery rules to obtain an order from a state court judge permitting the search of their home and the seizure of Yanaki's property satisfies the first part of the test for fair attribution [to the state for purposes of satisfying the requirement that the deprivation occur under color of state law].").

The question here, however, is whether under the same facts the associated state officials (defendants in this case) acted under color of law by their own conduct, not whether the private parties acted under color of law by having their conduct in obtaining the orders attributed to the state officials. In sum, we are convinced that the issue in Yanaki is sufficiently different from the issue that is raised in the instant suit so as to preclude the application of collateral estoppel...

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