DocketNumber： 91-2320
Filed Date： 6/18/1992
Status： Precedential
Modified Date： 3/3/2016
June 18, 1992 ____________________
No. 91-2320
JAMES P. KYRICOPOULOS,
Plaintiff, Appellant,
v.
TOWN OF ORLEANS,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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James P. Kyricopoulos on brief pro se.
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Kimberly M. Saillant and Morrison, Mahoney & Miller on brief for
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appellee.
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Per Curiam. Appellant James P. Kyricopoulos
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appeals from the judgment of the district court granting the
motion for summary judgment of appellee Town of Orleans.
I.
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Appellant filed a complaint under 42 U.S.C. 1983
in which he alleged that he had been "maliciously" arrested
without probable cause, that an Orleans police officer had
"maliciously" obtained a search warrant without probable
cause, and that this officer had committed perjury both
before the grand jury and at appellant's state criminal
trial. Appellant sought $32,000,000 in damages.
Appellant was indicted on charges of larceny by
false pretenses concerning the sale and leasing of motor
vehicles from Atlantic Security Leasing Corp. ("Atlantic"), a
company which appellant allegedly owned. A jury-waived trial
was held on February 6 and 7, 1989. Appellant was found
guilty. He then filed a timely notice of appeal. Before the
Massachusetts Appeals Court ruled on his appeal, however,
appellant initiated the present action. Thus, had the town
raised the issue, Younger abstention would in all probability
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have required the district court to abstain from adjudicating
the 1983 action until the completion of the criminal
proceedings.1 Because Younger abstention may be waived, see
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1. Under Younger v. Harris, 401 U.S. 37 (1971), a federal
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court, in the absence of extraordinary circumstances, cannot
interfere with a pending state criminal prosecution. Younger
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Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471,
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480 (1977), we need not address the issue.
After holding a hearing on the town's motion for
summary judgment, the district court dismissed appellant's
action on the following grounds: (1) there was probable
cause to arrest appellant at the time the arrest occurred;
(2) qualified immunity shielded the police officer who
arrested appellant from liability for damages; and (3)
absolute immunity protected this officer from liability for
testimony given at the grand jury and at trial. The court
also stated that to the extent appellant was mounting a
"collateral attack" on his state prosecution, 1983 did not
provide the basis for such an action.
II.
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Because the district court clearly was correct in
finding the police officer absolutely immune for testimony
given at trial, see Briscoe v. LaHue, 460 U.S. 325 (1983),
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and before the grand jury, see Frazier v. Bailey, 957 F.2d
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abstention applies to the situation where, as here, state
appellate remedies had yet to be exhausted when the 1983
action was filed. See Huffman v. Pursue, Ltd., 420 U.S. 592
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(1975); cf. New Orleans Pub. Serv., Inc. v. Council of New
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Orleans, 491 U.S. 350, 368-69 (1989) (litigant may not pursue
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equitable remedy in federal court while "concurrently
challenging the [state] trial court's judgment on appeal").
As for 1983 damages actions, it is appropriate to stay the
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federal action pending the conclusion of the state criminal
proceedings. See Deakins v. Monaghan, 484 U.S. 193, 202
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(1988) (district court has no discretion whether to dismiss
rather than to stay claims for money damages where such
remedy not available in state proceeding).
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920, 931 n.12 (1st Cir. 1992), we address only the questions
concerning probable cause.
Although we affirm the judgment of the district
court concerning this issue, we do so on a different ground.
See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7
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(1st Cir. 1990) (court of appeals may affirm on "any
independently sufficient ground"). While this appeal was
pending, the Massachusetts Appeals Court affirmed appellant's
conviction, see Commonwealth v. Kyricopoulos, 31 Mass. App.
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Ct. 1122, 585 N.E.2d 353 (1992), and the Massachusetts
Supreme Judicial Court denied appellant's request for further
appellate review. See Commonwealth v. Kyricopoulos, 412
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Mass. 1101, 588 N.E.2d 691 (1992). This has resulted in a
final state court judgment.
The full faith and credit statute, 28 U.S.C.
1738, requires us to give "the same preclusive effect to
state court judgments -- both as to claims and issues
previously adjudicated -- as would be given in the state
court system in which the federal court sits." Willhauck v.
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Halpin, 953 F.2d 689, 704 (1st Cir. 1991). We therefore look
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to Massachusetts law to determine whether appellant is barred
by his conviction from relitigating the question of probable
cause.
Under Massachusetts law, issue preclusion (or
collateral estoppel) is appropriate where there is "an
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identity of issues, a finding adverse to the party against
whom it is being asserted, and a judgment by a court or
tribunal of competent jurisdiction." Miles v. Aetna Casualty
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& Surety Co., 412 Mass. 424, 427, 589 N.E.2d 314, 317 (1992).
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Massachusetts no longer requires mutuality of parties to
invoke issue preclusion. Thus, where the party in whose
favor collateral estoppel is to be applied was not a litigant
in the original action, the central inquiry is whether the
party against whom issue preclusion will be applied had a
fair opportunity to litigate the issue fully or whether
reasons exist to afford the party a chance to relitigate the
issue. Brunson v. Wall, 405 Mass. 446, 451, 541 N.E.2d 338,
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341 (1989).
Although the district court record does not contain
the entire transcript of appellant's criminal trial, it seems
likely that the issue of probable cause was litigated at the
trial. Various pages from the criminal trial transcript
attached to appellant's opposition to the town's motion for
summary judgment and to appellant's brief on appeal reflect
that appellant cross-examined the Orleans police officer
concerning the search warrant. Appellant also raised, at his
state trial, the questions whether he "owned" Atlantic and
whether the checks representing sales of vehicles had been
"cashed" or "deposited" -- the grounds on which appellant
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apparently bases his claim of lack of probable cause for his
arrest.
Moreover, at the hearing on the motion for summary
judgment, appellant stated that he had raised, and the state
trial court had considered, the question of the relation of
corporate ownership to appellant's status when he was
arrested. See Addendum B to Appellee's Brief, at B-32 to B-
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33. Finally, the first page of the brief appellant filed in
the Massachusetts Appeals Court, attached to appellant's
amended opposition to the motion for summary judgment,
specifically lists as issues on appeal whether appellant was
falsely arrested and whether the search warrant was illegal
under the Fourth Amendment to the United States Constitution.
In any event, the above is more than sufficient to
show that appellant had a "full and fair opportunity" to
raise the probable cause questions at his criminal trial.
The other requirements necessary for the application of
collateral estoppel are also present in this case. First,
the state conviction, affirmed on appeal, is a valid and
final judgment. Second, while the town and the individual
defendant were not parties to the state prosecution, the
conduct of the police officer was an issue. The affirmance
of appellant's conviction indicates that the Massachusetts
Appeals Court concluded that the police officer's actions in
arresting appellant and in obtaining a search warrant did not
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result in a violation of appellant's Fourth Amendment rights.
Under Massachusetts law, these circumstances prevent
appellant from relitigating this question. See Brunson, 405
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Mass. at 450-51, 541 N.E.2d at 341 (where MCAD determined
that individual employees' actions were not based on race,
plaintiff was precluded from relitigating same issue in later
civil suit even though only the employer, not the individual
employees, was a party in MCAD proceeding).
We, therefore, affirm the judgment of the district
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court. As a result, appellant's motion for judgment is moot.
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