Kyricopoulos v. Town of Orleans

• Court: Court of Appeals for the First Circuit
• Decided: June 18, 1992
• Docket: 91-2320
• Status: Published

Opinion

USCA1 Opinion

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]
                                              ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Campbell, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
                                         _____________

                                 ____________________

            James P. Kyricopoulos on brief pro se.
            _____________________
            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
                      ____________

            appeals  from the judgment of the district court granting the

            motion for summary judgment of appellee Town of Orleans.

                                          I.
                                          __

                      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
                              _______

            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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                                         -2-

Ohio Bureau of Employment  Services v. Hodory, 431  U.S. 471,
            ___________________________________    ______

            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.
                                         ___

                      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),
                             ___ _______     _____

            and  before the grand jury,  see Frazier v.  Bailey, 957 F.2d
                                         ___ _______     ______

____________________

            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
                               ___ _______     ____________
            (1975);  cf. New Orleans Pub.  Serv., Inc. v.  Council of New
                     ___ _____________________________     ______________
            Orleans, 491 U.S. 350, 368-69 (1989) (litigant may not pursue
            _______
            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
                           _______
            federal action  pending the conclusion of  the state criminal
            proceedings.    See Deakins  v. Monaghan,  484 U.S.  193, 202
                            ___ _______     ________
            (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).

                                         -3-

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
            ___  ____________    _________________________

            (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.
                         ___ ____________     ____________

            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
                                  ___ ____________      ____________

            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.
                                                             _________

            Halpin, 953 F.2d 689, 704 (1st Cir. 1991).  We therefore look
            ______

            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
                                                  _____    ______________

            & Surety Co., 412 Mass. 424, 427, 589 N.E.2d 314, 317 (1992).
            ____________

            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,
                    _______    ____

            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-
                       ___

            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

-6-

result in a violation of appellant's Fourth Amendment rights.

            Under   Massachusetts   law,   these  circumstances   prevent

            appellant from relitigating this  question.  See Brunson, 405
                                                         ___ _______

            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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