Okoro v. Bohman

• Decision Date: 23 February 1999
• Docket Number: No. 97-1615,97-1615
• Citation: 164 F.3d 1059
• Parties: Ralphael OKORO, Plaintiff-Appellant, v. Randall BOHMAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1059

164 F.3d 1059

Ralphael OKORO, Plaintiff-Appellant, v. Randall BOHMAN, et al., Defendants-Appellees.

No. 97-1615.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 1998.

Decided Jan. 8, 1999.

Rehearing Denied Feb. 23, 1999.

Matthew R. Kipp, Ian D. Roffman, Janet Thabit (argued), Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, for Plaintiff-Appellant.

Lawrence Rosenthal, Benna R. Solomon, Julian Henriques, Susan S. Sher, Office of the Corporation Counsel, Appeals Division, for Commander Callaghan and Anthony Deleonardis.

James M. Kuhn (argued), Office of the United States Attorney, Thomas P. Walsh, Office of the United States Attorney, Civil Division, Chicago, IL, for Randall Bohman and Daniel Dodds.

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

POSNER, Chief Judge.

A federal prisoner has sued federal and state law enforcement officers for the return of gems and cash that he claims the defendants seized in the course of searching his home. The district court allowed Okoro to proceed in forma pauperis, but later dismissed his suit on the ground that it was barred by res judicata or, alternatively, by absence of federal subject-matter jurisdiction. Okoro has appealed, presenting questions concerning jurisdiction to recover property held by federal authorities and the res judicata effect of dismissals under the statute (28 U.S.C. § 1915) governing proceedings in forma pauperis.

Back in 1993 Okoro was arrested in his home by several of the defendants on suspicion of being a heroin dealer; the search of which he complains in the present suit was incident to the arrest. Prosecuted on federal drug charges--and drugs allegedly seized in the search were introduced in evidence against him--he was convicted and sentenced to prison, where he remains. But shortly before this court affirmed Okoro's conviction and sentence in an unpublished opinion, he had filed a civil suit in federal district court claiming that the defendants--the same defendants as in the present case, plus others--had framed him in violation of the Constitution. He asked for leave to proceed in forma pauperis. This was denied, and his suit dismissed, on the ground that it was frivolous in light of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which holds that a convicted criminal may not bring a civil suit questioning the validity of his conviction until he has gotten the conviction set aside.

Okoro brought a second, essentially identical suit, which was disposed of similarly. Then he brought the present suit, seeking the return of the gems allegedly seized during the search that had accompanied his arrest. This suit was not dismissed on Heck grounds, presumably because success in it would not necessarily undermine the validity of Okoro's conviction; he could be guilty of drug violations yet also have been the victim of a theft by the officers who arrested him. Gonzalez v. Entress, 133 F.3d 551, 553-54 (7th Cir.1998); United States v. Guzman, 85 F.3d 823, 830 (1st Cir.1996); cf. Nance v. Vieregge, 147 F.3d 589, 591-92 (7th Cir.1998). Yet from the outset Okoro has insisted that when arrested he was not trying to sell the officers heroin, as they testified, but instead trying to sell them the gems that (he claims) they stole. If this is true, then almost certainly he was convicted in error, for that testimony was an essential part of the evidence against him in the criminal case. If he cannot prevail on his claim for the return of the gems without undermining the criminal case against him, then he is barred by Heck unless and until he knocks out his conviction. But this point is not argued by the defendants, so we'll not pursue it. We are not required to, since the Heck defense is not jurisdictional. Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir.1995); Dixon v. Chrans, 101 F.3d 1228, 1231 (7th Cir.1996).

The district court's manner of disposing of Okoro's suit--first holding that it was barred by res judicata and then, in the alternative, that it was outside the court's jurisdiction--was irregular. With an immaterial exception explained in McNamara v. City of Chicago, 138 F.3d 1219, 1222 (7th Cir.1998), jurisdictional issues should be addressed first and if they are resolved against jurisdiction the case is at an end and there is no occasion to address the merits. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998); Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir.1998). So we shall reverse the order of his discussion, and begin with the jurisdictional issue.

Although Okoro's pleading was convoluted (he did not have a lawyer), the judge was correct to conclude that what Okoro essentially seeks is simply the return of his property under Rule 41(e) of the Federal Rules of Criminal Procedure. It is true that motions under this rule ordinarily seek relief against the United States (not named in Okoro's motion). See, e.g., United States v. Solis, 108 F.3d 722 (7th Cir.1997). The reason is that ordinarily it is the government that is the possessor of property seized for a criminal investigation, rather than the particular officers who seized it. And it is also true that a Rule 41(e) motion usually is filed in the underlying criminal proceeding rather than as a separate action, since (in the ordinary case) the parties are the same. But Okoro's theory is not that the United States government is holding his gems, but that the defendant officers are, and that they are doing so not as agents of the United States but in their private capacity; and so he was right to seek relief against them.

The district judge (Judge Nordberg) dismissed Okoro's Rule 41(e) motion for lack of jurisdiction on the ground that it had to be filed with the district judge (Judge Shadur) who had presided at Okoro's criminal trial and was and is presiding over the numerous postconviction proceedings that Okoro has filed in an effort, as yet unsuccessful, to void his conviction, because the motion was ancillary to the criminal case. This was a mistake. Ancillary the motion was, and so it could properly have been filed with Judge Shadur, United States v. Taylor, 975 F.2d 402, 403 (7th Cir.1992), but nothing in the rule required Okoro to proceed thus. E.g., Interstate Cigar Co. v. United States, 928 F.2d 221, 222 n. 1 (7th Cir.1991); Pena v. United States, 122 F.3d 3, 4-5 (5th Cir.1997); United States v. Garcia, 65 F.3d 17, 20 (4th Cir.1995); 3 Charles A. Wright, Federal Practice and Procedure: Criminal § 673, p. 765 (2d ed.1982). Rule 41(e) requires only that the motion be filed in the district court in which the property was seized. Okoro complied with that requirement. Which judge in the Northern District of Illinois was assigned to hear the motion was a matter without jurisdictional significance. The district court has procedures for transferring cases from the originally assigned judge, and Judge Nordberg could have invoked these procedures had he thought it important for Judge Shadur rather than himself to decide Okoro's motion. See N.D. Ill. R. 2.31; Apostolou v. Geldermann, Inc., 919 F.Supp. 289 (N.D.Ill.1996). He had no warrant for dismissing the motion just because he thought it better for Judge Shadur to decide it.

So we proceed to the alternative ground on which the district court refused to give Okoro any relief--that his motion is barred by res judicata. This would be clear if the two prior suits had been paid suits dismissed on the merits for failure to state a claim in light of Heck v. Humphrey. It would not matter that the prior suits charged different violations of law, alleged different facts, and sought different relief. Under the federal common law of res judicata, a subsequent suit is barred if the claim on which it is based arises from the same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment. Wilson v. City of Chicago, 120 F.3d 681, 687 (7th Cir.1997); Andersen v. Chrysler Corp., 99 F.3d 846, 852-53 (7th Cir.1996); Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223, 226 (7th Cir.1993); Restatement (Second) of Judgments § 24 (1982). This test, which does not require identity of legal theory or of facts, is satisfied here. All three suits arose from the same event cluster, namely the investigation and prosecution of Okoro for federal drug offenses. According to his allegations in the first two suits, Okoro was the victim of a massive conspiracy to frame him. The overt acts of the conspiracy included a meeting at his home in which he tried to sell members of the conspiracy gems but they claimed he tried to sell them heroin. If they not only testified falsely about his trying to sell them heroin but also, and at the very meeting about which they testified falsely, had stolen his gems (and some cash to boot), it was incumbent on him to allege the theft, along with the conspiracy to frame him, in his first suit. See, e.g., Brzostowski v. Laidlaw Waste Systems, Inc. 49 F.3d 337, 339 (7th Cir.1995); Herrmann v. Cencom Cable Associates, Inc., supra, 999 F.2d at 226-27; Atkins v. Hancock County Sheriff's Merit Board, 910 F.2d 403 (7th Cir.1990); Massachusetts School of Law v. American Bar Ass'n, 142 F.3d 26, 37-39 (1st Cir.1998). It was part of the same ball of wax.

But we must consider whether it matters that the first two suits were not paid suits and did not result in judgments on the merits, but instead were dismissed under 28 U.S.C. § 1915(d) (now 28 U.S.C. § 1915(e)(2)(B)(i)) as frivolous. The black-letter law is that only a "judgment on the merits" has res judicata effect. E.g., Herrmann v. Cencom Cable Associates, Inc., supra, 999 F.2d at 224. But much black-letter law is reliable only when understood as generally valid generalization rather than as literal truth; and that is the case here. A judgment that does not resolve the dispute between the...