1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0420P (6th C ir.) File Name: 03a04 20p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
No. 01-5956 S USAN S TEMLER ,

Plaintiff-Appellee, W IL LI AM C HIPMAN , Administrator of the Estate of Conni Black,

Plaintiff- Appellant / Cross-Appellee, RANDY B LACK , Legal Guardian of Shianne Black, Interve nor-Appe llant/ Cross-Appellee,

v.

F LORENCE , City of Florence
, Defendant-Appellee, B OBBY J OE W INCE , in his official capacity

as an Officer of the Florence Police Department; J OHN D OLAN , in his official capacity

as an Officer of the Florence Police Department; T HOMAS D USING , in his official capacity as an Officer of the X - - - -
> , - - - - - - - - - - - - - - - - - - - - - - - - Nos. 01-5956/6205 2 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

Florenc e Police D epartme nt, Defenda nts-Appe llees/ Cross-App ellants, R ON K ENNER , in his official capaci ty a s Boone C ounty Sheriff, Defenda nt.

No. 01-6205 S USAN S TEMLER ,

Plaintiff-Appellee, RANDY B LACK , Intervenor-Appellee/ Cross-App ellant,

v.

F LORENCE , City of Florence
,

Defenda nt, B OBBY J OE W INCE , in his official capacity

as an Officer of the Florence Police Department; J OHN D OLAN , in his official capacity

as an Officer of the Florence Police Department; T HOMAS D USING , in his official capacity as an Officer of the Florenc e Police D epartme nt, Defenda nts-Appe llants/ Cross-App ellees. -

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NNos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 3

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. Nos. 94-00062; 95-00014—William O. Bertelsman,

District Judge. Argued: December 5, 2002
Decided and Filed: December 2, 2003

Befor e: BOGG S, Chief Judg e; and SI LER a nd GIBBONS, Circuit Judg es.

_________________ COUNSEL

A RGUED: Eric C. Deters, ERIC C. DETER S & ASSOCI ATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey C. Mando, AD AMS, STEPNER, WOLTERMANN & DUSI NG, Co vi ng to n, Ke nt uc ky, for Def endants

. ON BRIE F: Eric C. De ters, ERIC C. D ETERS & ASSOCI ATES, Ft. Mitchell, Kentucky, f or Plaintiffs. Jeffrey C. Mando, AD AMS, STEPNER, WOLT ERM ANN & DUSING, Covington, K entu cky, Hug h O. Skees, ROUSE, S KEES , WIL SON & DI

LL ON, Flor

ence, K entucky , David Whalin, LAND RUM & SHOUSE, Louisville, Kentucky , for Defendants.

_________________

OPINION

_________________ BOGGS, Chief Judge. Appellant /cross-appellee William Chipman, administr

ator of the estate of Conni Black, and intervenor-ap p ellant/cross-appellee Randy Blac k appeal the 4 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

districtcourt’s order granting summar y judg ment for the defenda nts in thi s c ivil action arising out of an encounter betweenConni Black and Susan Stemler, on the one han d
, and police officers from the City of Flore nce , Kentucky a

nd Boone County, Kentucky . Appellees/cross-appellants Bobby Joe Wince, John Dolan, and Thomas Dusing appeal the denial of summary judgme

nton Susan Ste

mler’s c laim

of violation of equal protection. Wince appeals the de nial of summary judgment on Stemler’s claims of

fabrication

of evidence and excessive force.

This case arises out of an incident that occurred on February 19, 1994. We have reviewed this case on a previous appeal. The rele

vant facts are des cribed a t length in Stemler

v. Florence , 126 F.3d 856 (1997). Briefly , Black was killed ina car accident shortly after police of

fi cers al legedl

y removed her from Stemler’s car

and placed

her in the truck of her boyfr iend, Steve Kritis. Both Black and Kritis had been drinking heavily, and a

fter an alter

cation be tween the m at a bar
, Black le ft with Ste

mler in Ste

mler’s c ar. Krit

is the n began to chase the women on the s treets of Florence before both the car and the truck were stop pedby the police af

ter a concerned

citizen alerted them to the situation. Stemler was
arrested for driving unde

r the infl uence. Witnesses s a y tha t all the police officers present repea ted Kritis’s assertion that Stemler was a lesbian to each other and to otherspresent

. No police officer ever checke d Kritis for intoxication or a sked him to leave his truck. Black w as eith er escorted or carried fromStemler’s car to the passenger sea t of Kritis’s truck. Kritis then drove away

and turned onto the northbound lanes of I-75. Accordi

ng to Kritis, B lack, who had pas sed out, woke up and began to hit Kritis. He began to hit back and lost control of the truck. The truck swerved and colli ded with the guard rail. Black was partially

ejected from the passengerside window. Her arm was completely severed from her body and her h e ad was split into two parts by some part of the guardrail.Nos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 5

1 We treated the complaint against Kenn er as a suit directly against Bo one Co unty. Stemler , 126 F.3d at 86 4 n.8

.
2 Th is claim will

be referred to as “t

he substanti ve due pro cess cla im.” I. The Cl aims

A. Chipman’ s claim

OnMarch 7, 1994, William Chipman, the administrator of the estate of Conni Black, filed a wrongful death action in the Boone County Circuit Court against Florence police off icers Dusin g, Dolan, and Wince; Boone County police offi ce rs Rob Reu the and Chris Alsip; the City of Florence; and Ron Kenner, the Boone County Sherif f. The Boone Co

unty Circuit Court e ntere d summary judgme nt on behalf of the defenda nts on Chipman’s wrongf ul death c laim. Chipman v. City of Florence , No. 94-CI-00202 slip op. at4 (Boone Co., Ky., Cir. Ct. Apr. 2, 1996). The Kentucky Court of Appeals reversed the Circu it Court. Chipman v. City of Florence
, No. 1996-CA- 001287-MR

(K y. Ct. App. Nov. 25, 1998). The Kentucky Supreme Court then

revers ed the Cou

rt of Appe als and rein s tated the summary judg ment ordered by

the Boone County Circuit Court. City of Florence v. Chipman , 38 S. W. 3d 387 (Ky. 2001). Chipman also filed

a compla int in federal court against the
same defendants on March 31, 1994. 1 The complaint alleged that the defe ndants we

re liable under 4 2 U.S.C. § 1983 for Black’s wrongf

ul death because they

had displa

ye d deliber

ate indifference by

forcing her into Kritis’s car. 2
Chipma n’s federal claims were dismissed by the district court in 1994. Th e dis trict court granted the individual office rs’ motions to di smi ss under F ederal Rule of Civil Procedure 12(b)(6 ), for f

ailure to state a c laim, on the ground of qual ified immunity. The district court also g ranted the 6 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

motions for summary judg ment of Flor en ce and Boone Co un ty. Chipman v. City of Florence , 858 F. Supp. 87 (E.D. Ky. 1994), reconsid

eration de

nied on am ended c omplain t , 866 F. Supp. 332 (E.D. Ky. 1994)

. Onappeal, we uphel d the distr ict c ourt’s order granting summary judgment to the municipal defendants, Florence a nd Boone County. Stemler , 126 F.3d at 866. However, we
rever sed th e distric t court’s dismissal o f Chipman’ s claims agains tthe individ

ual o f ficers. We held that Chipman had pled facts sufficien

t t o maint ain her s

ubstantiv e due pro cess cl ai m against the individual officers. Id. at 870. Th e only state court d ecision prior to our decision was the Boone County Circuit Court decision awarding judgment to the defendant office rs, holdin g that B lack wa s not in cus t od y when the pickup struck th e guar drail and that none

of the sta te actors were the direct cause of her deat h on th e hig

hway . We stated in Stemler that “ [w ]hile these finding s are en

titled to preclusive e ff

ect, they a

re irrelevant to the merits of her subs tantive due process claim.” Id. at 870 n.12. The cas e was remanded to the district cour t forfurth er proc eedin gs consistent with the opinion. Shortly after the opinion issued, Randy Blac k was granted permission to interve

ne on beh alf of Co nni Black’s minor child, Shianne Black, to bring a claim of loss of parenta l consorti um. At about the same time, the federal district court held the case in abeyanc e pending a decision by the Kentucky Supreme Court on a

ppeal of the Boone County

Circuit court’s order entering summary

judgment in favor

of defendants and the Kentu cky Court of A

ppeals reversal of that

order, which
was issued February

22, 2001. Chipman later reached a settlement

with th e Bo one Co unt y off

ice rs. InJune 2001, the districtcourt granted the o fficer s’ motion for summary judgment on Chipman’s substantive due pro cess claim, and Shianne Bla ck’s claim for loss of parental consortium. The districtcourt found that the decision of t h e Kentucky Supreme Court barred

their claims under the doctrine of issueNos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 7

preclusion. The issue that the di strict court found could not be relitigated was whether Blac k was in “custody”

when she got into Kritis’s car beca

use, accord

ing to the district c ourt, the Kentuck

y Su pr eme Court had held that Black was never in custody.

B. Stemle r’s Cl aims

Susan Stemler filed a federal complaint, pu rsua nt to 42 U.S.C. § 1983, against officers Wince, Dolan, Dusing, and the Ci ty o f Florence. The complaint allege d claims of excessive force, wrongful arrest, malicious prosecution, and violati on of

equal protection on the bases of sex and sexual orientation. The district court grant ed the of

ficers’ Rule 12(b)(6) motions to dismiss on the ground of qualified im mu ni ty. The district court thenconsolida

ted her c ase with Chipman’s and awarded summary judgment to Florence. The federal district court

then entered an order gr

anting Stemler’s motion for

voluntar y di smissal of

her exce ssive for

ce clai m agains tWi nce. This voluntary dismissal was entere d pursuant to an agreement betwee

n the parties to dismiss the claim so that an appeal could proceed in this court. The agreement

allowed her to brin

g her c laim ag ain

should she be successful upon appeal.

As Chipman did, Stemler had also b rought similar c laims inKentucky state c ourt. She raised state-law claims of malicious prosecu

tion, fals e arre st, abuse

of proce ss, assault and battery , false imprisonment, and negligent or intentional infliction of emotion

al distre ss. Stemler v. Florence , No. 94- CI-00459. The Boone County Circuit Court held that she was precluded f rom pro secuting all of her claims, except for assault and battery. See Stemler v. City of Florence , 126 F.3d 85 6, 871 (6th Cir . 1997). T here wa s ample e

vid enc e con stituting probable cause for her arr est. This barred h e r falsearrest and malicious prosecution claim. As the defenda nts were police officers, the court found that there was no distinction betwee

n her cla ims of fal se arre st and fa lse 8 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

imprisonme

nt. It also found

that her abuse of process claim
was barred based on the probable cause finding, that the officers had no improper motive in arr es ting her , and that a state prosecu

tor indep endently

had ma de the prosecutorial decisions in her

criminal case. As for

her claims of negligent
or intentional infliction of

emotiona l distress
, the court found that under Kentucky

law, there is no viable cause of action for the se tor ts when sh e had ra ised esse ntially identica l claims under traditional torts as discussed above. Finally , the court determined

that there was a genuine issu e of material fact with r esp ect to her assault and battery claim against Wince, butnot aga

inst Dusing

and Dola n. Stemler

late r v oluntaril

y dismissedthis claim. T he Kentuck y Co urt of App eals affirmed the gran t of summary judgme nt. Stemler did not pursue an appeal. Uponappeal of the district court decision to this court, we affirmed the grant of summary judgmen t in favor of the City of Florence. Stemler
, 126 F.3d at 866. We also affirmed the dismissal of her f

alse ar rest and malic ious prose cution cl aims because the Boone County Circuit Court’sfinding that there had been probable cause to arrest an d prosecute Stemler preclude d

relitigating that issue in this court. Id. at 871-72

. We noted that a ltho ugh St emler seemed to be a ssert ing a claim that Wince had falsified

evidence against her, and that the state court’s finding of probable cause would not preclude her from prosecuting this claim, she had failed to pr operl y plead it. Id. at 872. We s tated tha t she would

be free to file
a newcompl aint against Wince raising that claim. Ibid. Fi na ll y, we reve

rsed the dis mis sal of Stemler’s equal protection

claim of selective prosecution

agains t the offi cers, holding that the allegations in her complaint were sufficie nt to state a claim. Id. at 874.

After our opinion in Stemler was issued, Stemler amended her complaint to allege that Wince fabricated the bloodNos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 9

3 Stemler was twice tr ied in Boone Cou nty Di st ri ct Cou rt on th e DUI charge. The first trial ended in a hung jury. She was acquit ted at the end of her se con d trial. sampleevidenc e used in her DUI trials. 3 As it did in Chipman’s ca se, the distri ct court held Stemle

r’s cas e in abeya nce pending final judgments in the state court procee dings. In June 2001, the district co urt de nied the officers’ motion for summary judgment

on Stemler’s claims of denial of equal protection based on selective prosecution, and Wince’s motion for summary judg ment on her

claims of falsification

of evidence, and excessive force. The district
co urt noted that none of these claims actually had bee n litigated instate court. It sta

ted that w hile it mig

ht agre e with the defen dants that Stemler could and should have brought theseclaims in state court, our opinion in Stemler

had implied that claim preclusion did not apply. The c ourt further stated that our holding in Stemler

stated that she could proceed with theseclaims, and that the “law of the case” would be violated if it did not permit her to do so.

II. Chipman’ s substantiv e due proc ess claim Chipman argues that our

resolution of the c

ustody issue in his favor in Stemler

should have had preclusive effect on the Kentucky state courts. He argues that our opin ion’s hold ings constituted

the “law of the case” and

the distri ct court

erred i n applying the doctrine of issue preclus ion based on the state court proceedings. Th e officers argue that the district c ourt
was correct in decid

ing that iss ue pre clusion barred the relitigation

of the issue of custody. Alterna tively, they

argue that Chipman’s substantive due proc ess claim is barred from f urther litigation under the Rooker-Feldman doctrine, o r under the doctrine of claim preclusion.

We review de novo a district court’s decision with r egard to issue preclusion or claim preclusion. Heylige r v. State 10 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

Univ. and Cmty. Coll. Sys. of Tenn

. , 126 F. 3d 849, 851 (6th Cir. 1997); Kane v. Magna Mixer Co. , 71 F.3d 555, 560 ( 6th Cir. 1 995), cert. denied
, 116 S. Ct. 18 48 (1 996) . Wh e n decidin g whether to afford preclusive eff ect to a state cou

r t judgmen t, the Full Faith and Credit Act, 28 U.S.C. § 1 738, requires the fede ral cou rt to give the prior adjudication the
same preclusive effect it would have under the law of the state whosecourt issued the judgment. See Migr a v. W arren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); Heyliger
, 126 F.3d at 851-52.

Under Kentucky

law, “[c]laim preclusion bars a party from re-litigating

a previously adjudica

ted cause of action and entirely b ars a newlawsuit on the same cause of action.” Yeoman v. Kentucky Health Policy Bd ., 983 S.W.2d 459, 465 (K y. 1 998). “Issue prec lusion bars the parties from relitigating

any issue ac tually

litigate d and fina

lly d ecided i n an earlier action.” Ibid.

A. Issue Preclusion

In order f or issue preclusion to apply in Kentucky, (1) th e issue in the second case must be the same as the issue in the first case, (2) the issue must have been actually litigated, (3) the is s ue must have been actually decided, and (4) the decisionon the i ssue i n the prior action must have been necessary to the court’s judgmen

t. Ibid. The district court found that all four factors were met when the Ke ntucky Supreme Court resolved Chipman’s state claims.

I n order for Chipman to prevail in the Kentuc ky stat e courts, the Kentu

cky Supreme C ourt state d that he had to show “the existence of a

duty and unless a s pecial r elationsh ip
was present, there is no duty owing fro m a ny of the police officers

. . . .” Chipman , 38 S.W. 3d at 392. The court went on, stating

that “[i]n or

der for the spec ial rela

tionship to

exist, two conditions are required: 1) the victim must have been in state custody or otherw

i se restr ained by the state at the timeNos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 11

the injury producing

act occurred, and 2) the violence or other offens ive co nduct must

have be en committ

ed by a state actor.” Ibid. The court held that “[t]here is no evidence from whichit can be ascertained that Black wa s in state custody or otherwis e restrained by

the police at

the time the pickup truck struck the guardrail with the fatal re sult. In a ddition, th ere is
no evidenc e to support

a claim that the conduct which caused the pickup tr

uck to leave the roadway

and strike the guard

rail was the result of the actions of the police officers.” Ibid.

The Kentucky Supreme

Court also stated that Black was

neve r in custody. Id. at 393. This is precisely the issue that is releva nt in a § 1983 action. In order to pre vail on the § 1983 claim, Chipman needs to show that the d efen dant officers “violated substantive due process by placing [Black] at risk of ha rm from a third par ty

. . . .” Stemler , 126 F.3d at 867. The cour

t must first determine whether “the plaintiff and the state actors had a

sufficiently direc

t relationship such that the def endants owed [Bla

ck] a duty

not to subje ct her to dange r,” and then “the court must also conclude that th e officers were sufficiently culpable to be liable under a substantive due proc ess theory.” Ibid. As to the first part, the relevant inquiry is whethe

r Black was in cu stody

at the time the officers allegedly

forced her into Kritis’s truck. First, the Kentucky

Supreme Court stated that there was no evi dence in the record to support a finding that Black wa s ever in cu st od y, the same

issue tha t is nece ssary

to Chipman’s federal claim. Se cond, the custody iss ue w as actua

lly litigated i n the state

courts: in

the Boone County

Circuit Court, the Kentucky Court of A ppeals and the Kentuck

y S upreme Court. The Kentucky Supre me Court foun d tha t there was no evide nce to suppo rt a fi ndin g t hat B lack was
ever in custod y in the context of deciding the appeal of a summary judgment motion. A summary judg ment order is a decisionon the merits. Ohio Nat’l Life Ins. Co. v. United States , 922 F.2d 320, 325 (6th Cir. 1990) . Third, the issue
was actually

de cided by the Ke

ntucky Supreme Court. The 12 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

court made an ex pl icit statement that there was insufficient
ev id en ce to su pp or t a fi nd in g t ha t B la ck wa s i n c us to dy.
However, the Ke ntucky Supreme Court’s stateme nt that she
was never in

custody was not necessary

to its judgment. The Boone Co unty Circuit Court held that there was no g enuine issue of material fact regarding w hether Black

was in custody at the time the pickup struck the guardrail – the point at which the injury-producing

act occ urred. Sp ecifica

lly, itstated she
was not in custody at this point. This was the only holding necessary for the a

ffirman ce of the Boone Co

unty Circuit Court’s judgmen

t. As we no ted in

discussin g this lower court decisionin Steml er , t he holding s of the sta te court on this issue are entitled to preclusive effec t. No nethele ss, this precise issue is ir

releva nt to the su

bstantive due proc ess claim.

As the Kentu

cky Court of A

ppeals (now the Kentucky Supreme Court) stated

in Sedley v. City of West Buec hel , 461 S.W.2d 556, 5 58 (Ky . 1971):

The gener

al rule is that a judgm ent in a former action operates as an estoppel on ly as to matters which were
necess arily inv olved and determined in the former action, and is not conclusive as to matter s wh ich were immaterial o r unessential to the determination of the prior action or which were not n ecessary

to uphold the judgmen t. (Emphasis added).

As the Kentuc ky Supreme Court correctly stated, our statemen ts in Stemler

regarding whether

Black was incustody
were dicta, as the only issue bef ore us at that point was the sufficiency

of the al legati ons in the c omplaint. Similarly, the statemen ts of the Ke

ntucky Supreme C ourt reg arding wheth e r Black was ever in custody are dicta, as they ar e not necessaryNos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 13

to the state

courts’ disposition of

the case. The actual holding of the Ke ntucky Supreme C ourt rea

ds:

Inorder f or a cla im to be actionable in

negligence, there must be the existence of a duty and unless a special relation ship was present, there is no duty owing from a ny of the police officers to Black to protect her from crime
or accident. Inorder f

or the spe cial rel ationship to exist, two conditions are required: 1) the victim must have been instate cu stody

or other wise restrained by

the state at

the time the injury producing act occurred, and 2) the violence or other offensive conduct must have been committed by a state actor. Neither of these factors can be found from the undisputed

material facts in this case. There is no evidence from which it can be ascertained that Black was in state custody or otherwise restrained by the police at the time the pick u p truck struck the guar drail with the fata l result . In addition, there is no evidence to support

a claim that the co nduct which caused the pickup truck to leave the roadway and strike the guard rail w as the result of the actions of the police office rs. City of Florence v. Chipman , 38 S.W.3d 387, 392 (Ky. 2001) (emphasis added and citations omitted).

The Kentucky Supreme

Court would have reac hed the s ame result if it had found that

Black was in custody

at the time she entered Kritis ’s tr

uck, so lon

g as it f ound she w as not in custody at the time the truck hit the g uardrail.

The district court erred in finding that issue preclusion barred Chipman’s substantive due process claim. 14 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

B. Claim Preclusion

The defenda

nt office rs also a rgue that claim preclusion should bar Chipma

n’s claim agains t them. Cla

impreclusion bars further litigation under Kentucky law

when: (1) there is identity of the parties; (2 ) there is identity of the ca uses of action; and (3) the action has been res olved on the mer its. Yeoman , 983 S.W.2d at 465. Yeoman also stated that “[f]or claim preclus ion to appl

y , the s ubject matter of the subsequent suit must be identical.” Ibid.

In Barnes v. M

cDowell, 848 F.2d 725 (6th Cir. 1988), we stated that “ Kentu cky courts do not apply the doctrine of claim preclus ion in

a subsequent suit involving facts already at issue in another action when the causes of action in the two procee dings are not the same.” Id. at 730. A d istric t c ourt, interpreting Kentucky

law, stated: [W]here t he second a

ction bet ween the same par ties is upon a different claim or demand, the judgment in the prior action operates as an estoppel on ly as to those matters in issue or points controverted, upon the determination

of which the finding or verdict was render ed. In all case s, there fore, w here it is sought to apply the estoppel of a judgment rendered upon one
cause of actio n to matters arisi ng i n a suit upon a different cause of action, the inquiry must always be as to the point

or questio n actually

litigated and determined i n the original action, not what might have been thu s litigated and determined. Only upon such matters is the judgment conclusive in another action. Presbyterian Chi ld Welfare Agency of Buc khorn v. Nelson County Bd. of Adjustment , 185 F . Supp . 2d 716, 720 (W.D. Ky. 2001) (quot ing L ou isville v. Louisville Professional Firefighters Ass’n , 813 S.W.2d 804, 807 (Ky. 1991)).Nos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 15

Wh ile t here is identity of the pa rties, and the action was resolved on the mer

its, Chipman’s claim is not barred , as it is notthe same cl aim as in st ate cour t. His cla

im in the sta

te courts was fo r wron gful de ath, w hich i s a negl igen ce clai m. This is not the same cause of action as the one he brough t in the federal court, a claim of violation of Black’s substantive due process rights. It is indeed tr ue that this c laim

could have been brough t in st ate courts. However, under the Kentuc ky law of cl aim pr eclusion, this does not matter, as there is no identity of the causes of action. Yeoman , 983 S.W.2d at 465. Chipman’s federal claim is not barred by claim preclusion.

C. Rooker-Feldman

The defenda

nt o ffi cers also argue that the fede ral district court lacked jurisdiction to consider Chipman’s claim under the Rooker-Feldm a n doctrine. They argue that Chipman’s federal suit is an a

ttempt to a

ppeal a s tate court

decision to the federal courts.

The doctrine

gets its name from two Supreme C ourt cas es. Rooke r v . Fidelity Trust Co. , 263 U.S. 413, 44 S. Ct. 149 (1923), held that the power to hear appeals fr om state court judgmen ts is exclusive ly

held by t he United States Supr

eme Co ur t. The Supreme Court held in District of Columbia Court of Appeals v. Feldman , 460 U.S. 462, 103 S. Ct. 1303 (1983), that federal district courts do not have jur isdiction t o hear challenges to certain state-court decisions. The RookerFeldman doc trine states that “lower federal courts lac k subject matter jurisdiction to engage in appellate r eview of state court pr

oceedin gs or to a djudicat e claims ‘ inextrica

bly intertwined’ with issues decided instate court proceedings.” Peterson Novelties, Inc. v. Berkley , 305 F.3d 386, 3 90 (6th Cir. 2002). In d efini ng “inextricably inter twined,” we have adopted t he reas oning tha

t: [t ]he federal claim is inextricably intertwined with the state-court

judgment if the federa

l claim suc ceeds on

ly to 16 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

the extent that the st

ate cour t wrong ly decided the issues before it . W he re fe de ra l r el ie f c an on ly be pr edicated upon a conviction that the state court w as wrong , it is difficul tto conceive the federal pro ceeding as, in substance, anything othe

r than a prohibited appeal of the state-c ourt judg

ment.
Id. at 391 (quot ing Ca tz v. Ch alker , 142 F.3d 279, 293 ( 6th Cir. 1998)). In Peterson Novelties , we held that the RookerFeldman doctrine was ina p plicable to claims t

hat the sta

te court did not addr ess or rule upon even though the feder al claims arose out

of the same nucleus of facts. Id. at 391-93. Therefore, the question is whether this court could hold that the officers violated Black’s constitutional rights without implicitly holding t

h at the state court wrongly decided the issues before it. Id. at 393.

This court discussed

the Rooker-Feldman doctrine and its frequen t con flation with claim a nd issue pr

eclusion in Hutcherson v. Lauder

dale Count

y , 326 F.3d 747 (6th Cir. 2003). This court stated that Seve nt h Circuit case law provided a useful way to determine which d

octrine to ap pl y:
Inorder to det erm ine the applicability of the RookerFeldman doctr

ine, the funda

mental an

d appropriate question to ask is whether the injury a lleg ed b y the federal plaintiff resulted from the stat e court judgment itself or is distinct from that judgment. I f the in ju ry alleged resulted fr om the state court judgment itself, Rooker-Feldman directs that the lower fede ral courts lac k jurisdiction. If t he in

ju ry a lleg ed is distinct from that judgmen t, i.e., the party maintains

an in jur y apart f

rom the loss in state court

and not "inextricably intertwined" with the state judgment
, . . . res judicata may apply, but Rooker

- Feldman does not . . . .

Id. at 755 (quot ing Garry v. Geils , 82 F.3d 1 362, 1365- 66 (7th Cir. 1996)).Nos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 17

As Chipman is n

ot direc tly c

hallenging the s tate court’s judgmen ts in feder

al court , the doct

rines of claim and

is su e preclusion

are more properly

applied to this case. However, inany case, th e Rooker-Feldman do ct ri ne do es no t a pp ly. The Kentucky Supreme

Court’s discussion of whether Black
was ever in custo dy was dicta, a nd therefore any

finding by the feder al court that Black was in custody at some point during the encounter

would not im

plicitly hold that the state court improperly dec ided

the issues before i t . The i ssue of Black’s custody before

the truc k hit

the guardrail was not an issue that was salient before the Kentucky court.
The districtcourt does have jurisdiction to hear Chipman’s substantive due process claim.

III. Stemle r’s Cl aims

A. Equal Pro tectio n Claim

The defendants argue that Stemler’s equa l protectionclaim is barred by c laim preclusion, issue preclusion, and the Rooker-Feldman doctr ine. T he dis trict court , alth ough inclined to rule that her claim was barred by c laim preclusion, instead decided that this court’s decision in Stemler precluded the a pplication of any

of those d

octrine s. We first

note th a t the district court was not required t o abst ain from analy zing Stemler’s claims under the claim preclusion doctrinebecause of our previous opinion. Our op inion was i ssued whi le Ste mler’s appeal was pending with the Kentucky Courto f Appeals

. We stated tha t at that point , claim pr eclusion did notyet apply

to her claims befo r e the fede ral c ourts . We
no wh er e s ai d t ha t c la im pr ec lu si on wo ul d n ev er ap pl y.
The defendant officers arg ue that the Kentucky

Cour t o f Appeals decision conclusively de cided the question of whether they had ac

ted with improper motive in arresting her. The Court of Appeals stated that “[a]lthough the officers may have been crude during Stemler’sarre st, we agree with the 18 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

circuit court that Stemler cannot establish that they acted with
animproper motive.” Stemler v. City of Florence
, No. 1996- CA-00131 8-MR

at 23. The court made this statement in the cont ext of discus sing the

propriety o f summa

ry ju dgment regarding Stemler’s abuse of proces s cla im. One of the essential elements of that tort is an ulterior purpose. Bonnie Braes Farms, Inc. v. Robinson , 598 S .W. 2d 765, 766 (Ky . Ct. App. 1980). It was one of sev eral findings of fact that supported the granting of summary judgment

in favor of

the defendants.

Stemler argues that our

statement in our opinion in Stemler that “the re cord evi dence su

pports a finding” that the officers choseto arrest her b ec ause they be lieved her to be a lesbian should have had preclusive effect on the K en tu ck y s tate courts. However, this statement was dicta. We reversed the districtcourt’s di smi ssal of her claim on a 12(b)(6) motion. Thus the only question before our court was whether her complaint adequately

stated an equal protection claim. A dismissal pursuant to 12(b)(6) “is proper only if it appears beyond doubt that the plaintiff can prove no set of fac ts in support of its claims that would ent itle it to relief.” Kostrzewa

v. City of Troy , 247 F.3d 633, 638 (6th Cir. 2001). That ju dgment does not preclude a later summary judgment motion, arguing that the plaintiff in fact could not show such evidence. In state court, the claim was be ing considered for summary judgment purposes. A summary judgment order is
a decision on the merits. Ohio Nat’l Li fe Ins. Co. , 922 F.2d at 325. Thus the i ss ue was a ctually litigate d in the sta

te courts. And, as the state court made an explicit fi ndin g that the office rs had no i

mproper motive, the

iss u e was actually decided.

Ino rder to maintain a claim of selective prosecution (the basis of Stemler’s equal protection claim), the plaintiff must prove that a state actor initiated the prosecution with a discriminatory

purpose. This is the same issue as the ulterior purpose issue in Stemler’s state clai m of abuse of proce ss.Nos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 19

And finally, the issue was ne cessary to the resolution of th e state claim. Th

us, the sta

te court ’s finding

that the offic ers did not have an improper m otive in arresting Stemler has preclusive effect on relitigating that issue i n the federal courts.

Becau se Stemler’s equal protection claim is barred by issue pr e clusion, the district court should have granted summary judgmen t to the off

icers on that clai m.
B. Excessive Force

Stemler’s federal claim of excessive force and he r s t ate claim of assault and b attery

agains t Wince we

re volunt arily dismissedso that she could appeal unfavorable low er court decisions on other claims. Wince first argues that Stemler has
never taken any a

ction to revive her federal claim. However, Stemler’s Se co nd Am en de d C om pl ai nt wa s a cc ep te d b y t he districtcourt on January 13, 1998. Her S econ d Amended Complaint incorporated by reference her initial com

pla int and her First Amended co mplaint, which included the excessive force claim. Furthermore, Wince does not explain why he did notmake this argument when he moved

the district court for summary judgmen t on this cla

im, and why the district cour t denied his summary judgment motion without ever addressing this issue. Wince next argues that

the voluntary dismissal

agreement bars Stemler from

reviving her exce ssive for

ce clai m becaus e it bars her fr om revivi ng her assault and battery claim. The agreement

stated that if her

appeal to the state appellate court
on her other state claims was unsuccessful, t he n her ass ault and battery cla

im could not be revived, an d v ice ver sa. It similarly stated that

if her appeal to the federal appellate court
was unsuccessful, then her excessive force c laim could

not be revived, and

vice versa. He a

rgues t hat beca use both claims rely on the same facts and elements of proof, the dismissal of 20 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

her state law claims bars her from re viving her assault and battery cla

ims. First, a voluntary

dismissal of a claim is not a judgment on the merits. Ky. R. Civ. P. 41.01. While Stemler’s assault and battery claim was dismissedwith prejudice against Dolan and Dusin g, the state court did not grant summar y jud gment to Wince, and issue preclusion does not apply to her cl a im agains tWince. Second, the agreement itself does not bar her frombringing her federa

l claim. As she was no t successful
on appeal in the state courts, the agreement would seem to bar her from bringing her assault and batter y claim ag ain in

state courts. However, the a g reement addressed her fede ral and state claims separately . The agreement did not say that if she
was unsuccessful in the state courts that she was barred from bringing her federal excessive force c laim again. The agreement

that bars her from bringing her stat e assau lt and battery claim i s not a judgment for the purposes of issue preclusion, as Wince seems to argue.

Wince next arg

ues that the Rooker-Feldman doctrine barred the district c ourt fro m conside ring Ste mler’s c laims since any decision favorable to her would have been an imper missible review of issues decided adversely to her in the Kentucky state court. He also argues that the claim preclusion doctrine bars her f rom re litigating this claim in the federal courts as
we ll. We will discuss the application of these doctrines below in conjunction with Stemler’s other outstanding claim.Nos. 01-5956/6205 Stemler, et al. v. Ci ty of Florenc e, et al. 21

C. The applic ati on of claim preclusion and the RookerF eldman doctrines to Stemler’s F abrication o f Evidence and E xcess ive For ce Cla ims

Wince argue s that Stemler’s ex cessive force and fabrica tion of evidenc e claims

should be barred by

claim preclusion and the Rooker-Feldman doctrine.

The Rooker-Feldman doctrine, as previously noted, states that “lower federal courts lack subject matter jurisdi ction to engage in appellate revi e w of state court pr oceedin gs or to adjudica te claims ‘ inextricably intertwined’ with issues decided in state court

proceedings.” Peterson Novelties
, 305 F.3d at 390. The question

for this court is whether a federal court can rule in Stemler’s favor on her fede ral claims without implicitly holding that the state courts wrongly decided the issues before them. Id. at 393.

The state courts adjudicated several of Stem ler ’s claims

. As noted above, Stemle

r’s clai m s of malicious prosecution and falsearr est and imprisonment were dismissed on summary judgment because the state court held that there was no genuine issue that probable cause existed for her D U I arrest. Her claims of intentional or negligent infliction of emotional distress and outrage w ere d ismissed on summary judgment because Kentucky

law holds that if a claimant raises claims under traditional torts that allow recovery for emotional distre ss, t he claimant cannot raise claims of intentional or neg ligent infliction o f emotiona l dis tress or outrage. The B oon e County Circuit Court found that there
was a genu

ine issue of mater ial fact as to her assault and battery cla

im against Wince. Exceptfor

the decision refusing

to dismiss her assault and battery claim against Wince, the Kentucky state courts never considered

or ruled on any

elements of the cl aims of fa bricat ion of evidence or excessive force, nor did they address any

facts or issues re gardin

g these claims. T

he state 22 Stemler, et al. v. Ci ty of Florenc e, et al. Nos. 01-5956/6205

cour ts confined themselves to the issues of probable c aus e and the motive for Stemler’s arrest. The districtcourt co

uld rule in Stemler’s favor without even i mplici tly holding that the Kentucky

courts wr ongly decided the issue s before

them. The Rooker-Feldman doctrine does not a

pply to these c laims, and the district court has jurisdiction to hear them.

Wince also argues that

claim preclusion would bar Stemler frombringing these claims in federal c ourt, because as she could have brought the m i n state court. However, as discussed above, the Kentucky

law of cl aim prec lusion only bars bringing

the same cause of

action tw ice. Stem ler’s cl aims for falsification

of e vidence and excessive force could have been broug ht in sta

te court and were not. However, under Kentucky law, as she did not bring identical causes of action instate court, she is not barred from bringing them in federal court. Yeoman , 983 S.W. 2d at 465

. The district court did not
err when it decided that cl aim prec lusion did not apply to these claims.

IV. Conclusion

InNo. 01-5 9 56, we REVERSE the grant of summary judg ment to the defendants on Chipman’s substantive du e process claim. In No. 01-6205, we REVERSE the denial of summary judgmen t with regard to Stemler’s equal protection claim. We AFFIRM the de nial of su mmary judgmen t with regard to Stemler ’s excess ive forc e and fa lsificat i on of evidence claim. B oth

cases a re REMAN

DED to the district court for further proceeding s consistent with this opinion.