1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0420P (6th Cir.)

File Name: 03a0420p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

No. 01-5956

SUSAN STEMLER,

Plaintiff-Appellee,

WILLIAM CHIPMAN,

Administrator of the Estate of

Conni Black,

Plaintiff-Appellant/

Cross-Appellee,

RANDY BLACK, Legal

Guardian of Shianne Black,

Intervenor-Appellant/

Cross-Appellee,

v.

FLORENCE, City of Florence,

Defendant-Appellee,

BOBBY JOE WINCE, in his

official capacity as an Officer

of the Florence Police

Department; JOHN DOLAN, in

his official capacity as an

Officer of the Florence Police

Department; THOMAS DUSING, in his official

capacity as an Officer of the

X---->,------------------------

Nos. 01-5956/6205

2 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

Florence Police Department,

Defendants-Appellees/

Cross-Appellants,

RON KENNER, in his official

capacity as Boone County

Sheriff,

Defendant.

No. 01-6205

SUSAN STEMLER,

Plaintiff-Appellee,

RANDY BLACK,

Intervenor-Appellee/

Cross-Appellant,

v.

FLORENCE, City of Florence,

Defendant,

BOBBY JOE WINCE, in his

official capacity as an Officer

of the Florence Police

Department; JOHN DOLAN, in

his official capacity as an

Officer of the Florence Police

Department; THOMAS DUSING, in his official

capacity as an Officer of the

Florence Police Department,

Defendants-Appellants/

Cross-Appellees. ------------------------------------N
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, 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 

Before: BOGGS, Chief Judge; and SILER and GIBBONS,

Circuit Judges.

_________________

COUNSEL

ARGUED: Eric C. Deters, ERIC C. DETERS &

ASSOCIATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey

C. Mando, ADAMS, STEPNER, WOLTERMANN &

DUSING, Covington, Kentucky, for Defendants.

ON BRIEF: Eric C. Deters, ERIC C. DETERS &

ASSOCIATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey

C. Mando, ADAMS, STEPNER, WOLTERMANN &

DUSING, Covington, Kentucky, Hugh O. Skees, ROUSE,

SKEES, WILSON & DILLON, Florence, Kentucky, David

Whalin, LANDRUM & SHOUSE, Louisville, Kentucky, for

Defendants. 

_________________

OPINION

_________________

BOGGS, Chief Judge. Appellant/cross-appellee William

Chipman, administrator of the estate of Conni Black, and

intervenor-appellant/cross-appellee Randy Black appeal the

4 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

district court’s order granting summary judgment for the

defendants in this civil action arising out of an encounter

between Conni Black and Susan Stemler, on the one hand,

and police officers from the City of Florence, Kentucky and

Boone County, Kentucky. Appellees/cross-appellants Bobby

Joe Wince, John Dolan, and Thomas Dusing appeal the denial

of summary judgment on Susan Stemler’s claim of violation

of equal protection. Wince appeals the denial 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 relevant facts are described at length in Stemler

v. Florence, 126 F.3d 856 (1997). Briefly, Black was killed

in a car accident shortly after police officers allegedly

removed her from Stemler’s car and placed her in the truck of

her boyfriend, Steve Kritis. Both Black and Kritis had been

drinking heavily, and after an altercation between them at a

bar, Black left with Stemler in Stemler’s car. Kritis then

began to chase the women on the streets of Florence before

both the car and the truck were stopped by the police after a

concerned citizen alerted them to the situation. Stemler was

arrested for driving under the influence. Witnesses say that

all the police officers present repeated Kritis’s assertion that

Stemler was a lesbian to each other and to others present. No

police officer ever checked Kritis for intoxication or asked

him to leave his truck. Black was either escorted or carried

from Stemler’s car to the passenger seat of Kritis’s truck.

Kritis then drove away and turned onto the northbound lanes

of I-75. According to Kritis, Black, who had passed out,

woke up and began to hit Kritis. He began to hit back and

lost control of the truck. The truck swerved and collided with

the guardrail. Black was partially ejected from the passengerside window. Her arm was completely severed from her body

and her head was split into two parts by some part of the

guardrail. 
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

5

1We treated the complaint against Kenner as a suit directly against

Boone County. Stemler, 126 F.3d at 864 n.8. 

2

This claim will be referred to as “the substantive due process claim.”

I. The Claims

A. Chipman’s claim

On March 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 officers

Dusing, Dolan, and Wince; Boone County police officers Rob

Reuthe and Chris Alsip; the City of Florence; and Ron

Kenner, the Boone County Sheriff. The Boone County

Circuit Court entered summary judgment on behalf of the

defendants on Chipman’s wrongful death claim. Chipman v.

City of Florence, No. 94-CI-00202 slip op. at 4 (Boone Co.,

Ky., Cir. Ct. Apr. 2, 1996). The Kentucky Court of Appeals

reversed the Circuit Court. Chipman v. City of Florence, No.

1996-CA-001287-MR (Ky. Ct. App. Nov. 25, 1998). The

Kentucky Supreme Court then reversed the Court of Appeals

and reinstated the summary judgment ordered by the Boone

County Circuit Court. City of Florence v. Chipman, 38 S.W.

3d 387 (Ky. 2001). 

Chipman also filed a complaint in federal court against the

same defendants on March 31, 1994.1 The complaint alleged

that the defendants were liable under 42 U.S.C. § 1983 for

Black’s wrongful death because they had displayed deliberate

indifference by forcing her into Kritis’s car.2

Chipman’s federal claims were dismissed by the district

court in 1994. The district court granted the individual

officers’ motions to dismiss under Federal Rule of Civil

Procedure 12(b)(6), for failure to state a claim, on the ground

of qualified immunity. The district court also granted the

6 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

motions for summary judgment of Florence and Boone

County. Chipman v. City of Florence, 858 F. Supp. 87 (E.D.

Ky. 1994), reconsideration denied on amended complaint,

866 F. Supp. 332 (E.D. Ky. 1994). 

On appeal, we upheld the district court’s order granting

summary judgment to the municipal defendants, Florence and

Boone County. Stemler, 126 F.3d at 866. However, we

reversed the district court’s dismissal of Chipman’s claims

against the individual officers. We held that Chipman had

pled facts sufficient to maintain her substantive due process

claim against the individual officers. Id. at 870. The only

state court decision prior to our decision was the Boone

County Circuit Court decision awarding judgment to the

defendant officers, holding that Black was not in custody

when the pickup struck the guardrail and that none of the state

actors were the direct cause of her death on the highway. We

stated in Stemler that “[w]hile these findings are entitled to

preclusive effect, they are irrelevant to the merits of her

substantive due process claim.” Id. at 870 n.12. The case

was remanded to the district court for further proceedings

consistent with the opinion. 

Shortly after the opinion issued, Randy Black was granted

permission to intervene on behalf of Conni Black’s minor

child, Shianne Black, to bring a claim of loss of parental

consortium. At about the same time, the federal district court

held the case in abeyance pending a decision by the Kentucky

Supreme Court on appeal of the Boone County Circuit court’s

order entering summary judgment in favor of defendants and

the Kentucky Court of Appeals reversal of that order, which

was issued February 22, 2001. Chipman later reached a

settlement with the Boone County officers. In June 2001, the

district court granted the officers’ motion for summary

judgment on Chipman’s substantive due process claim, and

Shianne Black’s claim for loss of parental consortium. The

district court found that the decision of the Kentucky

Supreme Court barred their claims under the doctrine of issue
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

7

preclusion. The issue that the district court found could not

be relitigated was whether Black was in “custody” when she

got into Kritis’s car because, according to the district court,

the Kentucky Supreme Court had held that Black was never

in custody. 

B. Stemler’s Claims

Susan Stemler filed a federal complaint, pursuant to

42 U.S.C. § 1983, against officers Wince, Dolan, Dusing, and

the City of Florence. The complaint alleged claims of

excessive force, wrongful arrest, malicious prosecution, and

violation of equal protection on the bases of sex and sexual

orientation. The district court granted the officers’ Rule

12(b)(6) motions to dismiss on the ground of qualified

immunity. The district court then consolidated her case with

Chipman’s and awarded summary judgment to Florence. The

federal district court then entered an order granting Stemler’s

motion for voluntary dismissal of her excessive force claim

against Wince. This voluntary dismissal was entered

pursuant to an agreement between the parties to dismiss the

claim so that an appeal could proceed in this court. The

agreement allowed her to bring her claim again should she be

successful upon appeal. 

As Chipman did, Stemler had also brought similar claims

in Kentucky state court. She raised state-law claims of

malicious prosecution, false arrest, abuse of process, assault

and battery, false imprisonment, and negligent or intentional

infliction of emotional distress. Stemler v. Florence, No. 94-

CI-00459. The Boone County Circuit Court held that she was

precluded from prosecuting all of her claims, except for

assault and battery. See Stemler v. City of Florence, 126 F.3d

856, 871 (6th Cir. 1997). There was ample evidence

constituting probable cause for her arrest. This barred her

false arrest and malicious prosecution claim. As the

defendants were police officers, the court found that there was

no distinction between her claims of false arrest and false

8 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

imprisonment. 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 arresting her, and that a

state prosecutor independently had made the prosecutorial

decisions in her criminal case. As for her claims of negligent

or intentional infliction of emotional distress, the court found

that under Kentucky law, there is no viable cause of action for

these torts when she had raised essentially identical claims

under traditional torts as discussed above. Finally, the court

determined that there was a genuine issue of material fact

with respect to her assault and battery claim against Wince,

but not against Dusing and Dolan. Stemler later voluntarily

dismissed this claim. The Kentucky Court of Appeals

affirmed the grant of summary judgment. Stemler did not

pursue an appeal. 

Upon appeal of the district court decision to this court, we

affirmed the grant of summary judgment in favor of the City

of Florence. Stemler, 126 F.3d at 866. We also affirmed the

dismissal of her false arrest and malicious prosecution claims

because the Boone County Circuit Court’s finding that there

had been probable cause to arrest and prosecute Stemler

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

We noted that although Stemler seemed to be asserting 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 properly

plead it. Id. at 872. We stated that she would be free to file

a new complaint against Wince raising that claim. Ibid.

Finally, we reversed the dismissal of Stemler’s equal

protection claim of selective prosecution against the officers,

holding that the allegations in her complaint were sufficient

to state a claim. Id. at 874. 

After our opinion in Stemler was issued, Stemler amended

her complaint to allege that Wince fabricated the blood
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

9

3

Stemler was twice tried in Boone County District Court on the DUI

charge. The first trial ended in a hung jury. She was acquitted at the end

of her second trial. 

sample evidence used in her DUI trials.3 As it did in

Chipman’s case, the district court held Stemler’s case in

abeyance pending final judgments in the state court

proceedings. In June 2001, the district court denied 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 judgment on her claims of

falsification of evidence, and excessive force. The district

court noted that none of these claims actually had been

litigated in state court. It stated that while it might agree with

the defendants that Stemler could and should have brought

these claims in state court, our opinion in Stemler had implied

that claim preclusion did not apply. The court further stated

that our holding in Stemler stated that she could proceed with

these claims, and that the “law of the case” would be violated

if it did not permit her to do so. 

II. Chipman’s substantive due process claim

Chipman argues that our resolution of the custody issue in

his favor in Stemler should have had preclusive effect on the

Kentucky state courts. He argues that our opinion’s holdings

constituted the “law of the case” and the district court erred in

applying the doctrine of issue preclusion based on the state

court proceedings. The officers argue that the district court

was correct in deciding that issue preclusion barred the

relitigation of the issue of custody. Alternatively, they argue

that Chipman’s substantive due process claim is barred from

further litigation under the Rooker-Feldman doctrine, or

under the doctrine of claim preclusion.

We review de novo a district court’s decision with regard

to issue preclusion or claim preclusion. Heyliger v. State

10 Stemler, et al. v. City

of Florence, 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. 1995), cert. denied, 116 S. Ct. 1848 (1996). When

deciding whether to afford preclusive effect to a state court

judgment, the Full Faith and Credit Act, 28 U.S.C. § 1738,

requires the federal court to give the prior adjudication the

same preclusive effect it would have under the law of the state

whose court issued the judgment. See Migra v. Warren 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 adjudicated cause of action and

entirely bars a new lawsuit on the same cause of action.”

Yeoman v. Kentucky Health Policy Bd., 983 S.W.2d 459, 465

(Ky. 1998). “Issue preclusion bars the parties from

relitigating any issue actually litigated and finally decided in

an earlier action.” Ibid. 

A. Issue Preclusion

In order for issue preclusion to apply in Kentucky, (1) the

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 issue must have been actually decided, and (4) the

decision on the issue in the prior action must have been

necessary to the court’s judgment. Ibid. The district court

found that all four factors were met when the Kentucky

Supreme Court resolved Chipman’s state claims. 

In order for Chipman to prevail in the Kentucky state

courts, the Kentucky Supreme Court stated that he had to

show “the existence of a duty and unless a special relationship

was present, there is no duty owing from any of the police

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

on, stating that “[i]n order for the special relationship to exist,

two conditions are required: 1) the victim must have been in

state custody or otherwise restrained by the state at the time
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

11

the injury producing act occurred, and 2) the violence or other

offensive conduct must have been committed by a state

actor.” Ibid. The court held that “[t]here 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 pickup truck

struck the guardrail with the fatal result. In addition, there is

no evidence to support a claim that the conduct which caused

the pickup truck to leave the roadway and strike the guardrail

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

The Kentucky Supreme Court also stated that Black was

never in custody. Id. at 393. This is precisely the issue that

is relevant in a § 1983 action. In order to prevail on the

§ 1983 claim, Chipman needs to show that the defendant

officers “violated substantive due process by placing [Black]

at risk of harm from a third party . . . .” Stemler, 126 F.3d at

867. The court must first determine whether “the plaintiff and

the state actors had a sufficiently direct relationship such that

the defendants owed [Black] a duty not to subject her to

danger,” and then “the court must also conclude that the

officers were sufficiently culpable to be liable under a

substantive due process theory.” Ibid. As to the first part, the

relevant inquiry is whether Black was in custody at the time

the officers allegedly forced her into Kritis’s truck. 

First, the Kentucky Supreme Court stated that there was no

evidence in the record to support a finding that Black was

ever in custody, the same issue that is necessary to Chipman’s

federal claim. Second, the custody issue was actually

litigated in the state courts: in the Boone County Circuit

Court, the Kentucky Court of Appeals and the Kentucky

Supreme Court. The Kentucky Supreme Court found that

there was no evidence to support a finding that Black was

ever in custody in the context of deciding the appeal of a

summary judgment motion. A summary judgment order is a

decision on the merits. Ohio Nat’l Life Ins. Co. v. United

States, 922 F.2d 320, 325 (6th Cir. 1990). Third, the issue

was actually decided by the Kentucky Supreme Court. The

12 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

court made an explicit statement that there was insufficient

evidence to support a finding that Black was in custody.

However,theKentucky Supreme Court’s statement that she

was never in custody was not necessary to its judgment. The

Boone County Circuit Court held that there was no genuine

issue of material fact regarding whether Black was in custody

at the time the pickup struck the guardrail – the point at which

the injury-producing act occurred. Specifically, it stated she

was not in custody at this point. This was the only holding

necessary for the affirmance of the Boone County Circuit

Court’s judgment. As we noted in discussing this lower court

decision in Stemler, the holdings of the state court on this

issue are entitled to preclusive effect. Nonetheless, this

precise issue is irrelevant to the substantive due process

claim. 

As the Kentucky Court of Appeals (now the Kentucky

Supreme Court) stated in Sedley v. City of West Buechel, 461

S.W.2d 556, 558 (Ky. 1971): 

The general rule is that a judgment in a former action

operates as an estoppel only as to matters which were

necessarilyinvolved and determined in the former action,

and is not conclusive as to matters which were

immaterial or unessential to the determination of the

prior action or which were not necessary to uphold the

judgment.

(Emphasis added).

As the Kentucky Supreme Court correctly stated, our

statements in Stemler regarding whether Black was in custody

were dicta, as the only issue before us at that point was the

sufficiency of the allegations in the complaint. Similarly, the

statements of the Kentucky Supreme Court regarding whether

Black was ever in custody are dicta, as they are not necessary
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

13

to the state courts’ disposition of the case. The actual holding

of the Kentucky Supreme Court reads: 

In order for a claim to be actionable in negligence, there

must be the existence of a duty and unless a special

relationship was present, there is no duty owing from any

of the police officers to Black to protect her from crime

or accident. In order for the special relationship to exist,

two conditions are required: 1) the victim must have been

in state custody or otherwise 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 pickup truck struck the

guardrail with the fatal result. In addition, there is no

evidence to support a claim that the conduct which

caused the pickup truck to leave the roadway and strike

the guardrail was the result of the actions of the police

officers.

City of Florence v. Chipman, 38 S.W.3d 387, 392 (Ky. 2001)

(emphasis added and citations omitted). 

The Kentucky Supreme Court would have reached the same

result if it had found that Black was in custody at the time she

entered Kritis’s truck, so long as it found she was not in

custody at the time the truck hit the guardrail. 

The district court erred in finding that issue preclusion

barred Chipman’s substantive due process claim. 

14 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

B. Claim Preclusion

The defendant officers also argue that claim preclusion

should bar Chipman’s claim against them. Claim preclusion

bars further litigation under Kentucky law when: (1) there is

identity of the parties; (2) there is identity of the causes of

action; and (3) the action has been resolved on the merits.

Yeoman, 983 S.W.2d at 465. Yeoman also stated that “[f]or

claim preclusion to apply, the subject matter of the

subsequent suit must be identical.” Ibid. 

In Barnes v. McDowell, 848 F.2d 725 (6th Cir. 1988), we

stated that “Kentucky courts do not apply the doctrine of

claim preclusion in a subsequent suit involving facts already

at issue in another action when the causes of action in the two

proceedings are not the same.” Id. at 730. A district court,

interpreting Kentucky law, stated:

[W]here the second action between the same parties is

upon a different claim or demand, the judgment in the

prior action operates as an estoppel only as to those

matters in issue or points controverted, upon the

determination of which the finding or verdict was

rendered. In all cases, therefore, where it is sought to

apply the estoppel of a judgment rendered upon one

cause of action to matters arising in a suit upon a

different cause of action, the inquiry must always be as

to the point or question actually litigated and determined

in the original action, not what might have been thus

litigated and determined. Only upon such matters is the

judgment conclusive in another action.

Presbyterian Child Welfare Agency of Buckhorn v. Nelson

County Bd. of Adjustment, 185 F. Supp. 2d 716, 720 (W.D.

Ky. 2001) (quoting Louisville v. Louisville Professional

Firefighters Ass’n, 813 S.W.2d 804, 807 (Ky. 1991)). 
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

15

While there is identity of the parties, and the action was

resolved on the merits, Chipman’s claim is not barred, as it is

not the same claim as in state court. His claim in the state

courts was for wrongful death, which is a negligence claim.

This is not the same cause of action as the one he brought in

the federal court, a claim of violation of Black’s substantive

due process rights. It is indeed true that this claim could have

been brought in state courts. However, under the Kentucky

law of claim preclusion, 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 defendant officers also argue that the federal district

court lacked jurisdiction to consider Chipman’s claim under

the Rooker-Feldman doctrine. They argue that Chipman’s

federal suit is an attempt to appeal a state court decision to the

federal courts. 

The doctrine gets its name from two Supreme Court cases.

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149

(1923), held that the power to hear appeals from state court

judgments is exclusively held by the United States Supreme

Court. 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 jurisdiction to

hear challenges to certain state-court decisions. The RookerFeldman doctrine states that “lower federal courts lack

subject matter jurisdiction to engage in appellate review of

state court proceedings or to adjudicate claims ‘inextricably

intertwined’ with issues decided in state court proceedings.”

Peterson Novelties, Inc. v. Berkley, 305 F.3d 386, 390 (6th

Cir. 2002). In defining “inextricably intertwined,” we have

adopted the reasoning that: 

[t]he federal claim is inextricably intertwined with the

state-court judgment if the federal claim succeeds only to

16 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

the extent that the state court wrongly decided the issues

before it. Where federal relief can only be predicated

upon a conviction that the state court was wrong, it is

difficult to conceive the federal proceeding as, in

substance, anything other than a prohibited appeal of the

state-court judgment.

Id. at 391 (quoting Catz v. Chalker, 142 F.3d 279, 293 (6th

Cir. 1998)). In Peterson Novelties, we held that the RookerFeldman doctrine was inapplicable to claims that the state

court did not address or rule upon even though the federal

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 that the state court wrongly decided the

issues before it. Id. at 393. 

This court discussed the Rooker-Feldman doctrine and its

frequent conflation with claim and issue preclusion in

Hutcherson v. Lauderdale County, 326 F.3d 747 (6th Cir.

2003). This court stated that Seventh Circuit case law

provided a useful way to determine which doctrine to apply:

In order to determine the applicability of the RookerFeldman doctrine, the fundamental and appropriate

question to ask is whether the injury alleged by the

federal plaintiff resulted from the state court judgment

itself or is distinct from that judgment. If the injury

alleged resulted from the state court judgment itself,

Rooker-Feldman directs that the lower federal courtslack

jurisdiction. If the injury alleged is distinct from that

judgment, i.e., the party maintains an injury apart from

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 (quoting Garry v. Geils, 82 F.3d 1362, 1365-66 (7th

Cir. 1996)). 
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

17

As Chipman is not directly challenging the state court’s

judgments in federal court, the doctrines of claim and issue

preclusion are more properly applied to this case. However,

in any case, the Rooker-Feldman doctrine does not apply.

The Kentucky Supreme Court’s discussion of whether Black

was ever in custody was dicta, and therefore any finding by

the federal court that Black was in custody at some point

during the encounter would not implicitly hold that the state

court improperly decided the issues before it. The issue of

Black’s custody before the truck hit the guardrail was not an

issue that was salient before the Kentucky court. 

The district court does have jurisdiction to hear Chipman’s

substantive due process claim. 

III. Stemler’s Claims

A. Equal Protection Claim

The defendants argue that Stemler’s equal protection claim

is barred by claim preclusion, issue preclusion, and the

Rooker-Feldman doctrine. The district court, although

inclined to rule that her claim was barred by claim preclusion,

instead decided that this court’s decision in Stemler precluded

the application of any of those doctrines. We first note that

the district court was not required to abstain from analyzing

Stemler’s claims under the claim preclusion doctrine because

of our previous opinion. Our opinion was issued while

Stemler’s appeal was pending with the Kentucky Court of

Appeals. We stated that at that point, claim preclusion did

not yet apply to her claims before the federal courts. We

nowhere said that claim preclusion would never apply.

The defendant officers argue that the Kentucky Court of

Appeals decision conclusively decided the question of

whether they had acted with improper motive in arresting her.

The Court of Appeals stated that “[a]lthough the officers may

have been crude during Stemler’s arrest, we agree with the

18 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

circuit court that Stemler cannot establish that they acted with

an improper motive.” Stemler v. City of Florence, No. 1996-

CA-001318-MR at 23. The court made this statement in the

context of discussing the propriety of summary judgment

regarding Stemler’s abuse of process claim. 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 several 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 record evidence supports a finding” that the officers

chose to arrest her because they believed her to be a lesbian

should have had preclusive effect on the Kentucky state

courts. However, this statement was dicta. We reversed the

district court’s dismissal 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 facts in

support of its claims that would entitle it to relief.”

Kostrzewa v. City of Troy, 247 F.3d 633, 638 (6th Cir. 2001).

That judgment 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 being considered for

summary judgment purposes. A summary judgment order is

a decision on the merits. Ohio Nat’l Life Ins. Co., 922 F.2d

at 325. Thus the issue was actually litigated in the state

courts. And, as the state court made an explicit finding that

the officers had no improper motive, the issue was actually

decided. 

In order 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 claim of abuse of process.
Nos. 01-5956/6205 Stemler, et al. v. City

of Florence, et al.

19

And finally, the issue was necessary to the resolution of the

state claim. Thus, the state court’s finding that the officers

did not have an improper motive in arresting Stemler has

preclusive effect on relitigating that issue in the federal

courts. 

Because Stemler’s equal protection claim is barred by issue

preclusion, the district court should have granted summary

judgment to the officers on that claim.

B. Excessive Force

Stemler’s federal claim of excessive force and her state

claim of assault and battery against Wince were voluntarily

dismissed so that she could appeal unfavorable lower court

decisions on other claims. Wince first argues that Stemler has

never taken any action to revive her federal claim. However,

Stemler’s Second Amended Complaint was accepted by the

district court on January 13, 1998. Her Second Amended

Complaint incorporated by reference her initial complaint and

her First Amended complaint, which included the excessive

force claim. Furthermore, Wince does not explain why he did

not make this argument when he moved the district court for

summary judgment on this claim, and why the district court

denied his summary judgment motion without ever

addressing this issue. 

Wince next argues that the voluntary dismissal agreement

bars Stemler from reviving her excessive force claim because

it bars her from reviving her assault and battery claim. The

agreement stated that if her appeal to the state appellate court

on her other state claims was unsuccessful, then her assault

and battery claim could not be revived, and vice versa. It

similarly stated that if her appeal to the federal appellate court

was unsuccessful, then her excessive force claim could not be

revived, and vice versa. He argues that because both claims

rely on the same facts and elements of proof, the dismissal of

20 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

her state law claims bars her from reviving her assault and

battery claims. 

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 dismissed with prejudice against Dolan and

Dusing, the state court did not grant summary judgment to

Wince, and issue preclusion does not apply to her claim

against Wince. Second, the agreement itself does not bar her

from bringing her federal claim. As she was not successful

on appeal in the state courts, the agreement would seem to bar

her from bringing her assault and battery claim again in state

courts. However, the agreement addressed her federal 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 claim again. The

agreement that bars her from bringing her state assault and

battery claim is not a judgment for the purposes of issue

preclusion, as Wince seems to argue. 

Wince next argues that theRooker-Feldman doctrine barred

the district court from considering Stemler’s claims since any

decision favorable to her would have been an impermissible

review of issues decided adversely to her in the Kentucky

state court. He also argues that the claim preclusion doctrine

bars her from relitigating this claim in the federal courts as

well. 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. City

of Florence, et al.

21

C. The application of claim preclusion and the RookerFeldman doctrines to Stemler’s Fabrication of

Evidence and Excessive Force Claims

Wince argues that Stemler’s excessive force and fabrication

of evidence 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 jurisdiction to

engage in appellate review of state court proceedings or to

adjudicate 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 federal claims without

implicitly holding that the state courts wrongly decided the

issues before them. Id. at 393. 

The state courts adjudicated several of Stemler’s claims.

As noted above, Stemler’s claims of malicious prosecution

and false arrest and imprisonment were dismissed on

summary judgment because the state court held that there was

no genuine issue that probable cause existed for her DUI

arrest. Her claims of intentional or negligent infliction of

emotional distress and outrage were dismissed on summary

judgment because Kentucky law holds that if a claimant raises

claims under traditional torts that allow recovery for

emotional distress, the claimant cannot raise claims of

intentional or negligent infliction of emotional distress or

outrage. The Boone County Circuit Court found that there

was a genuine issue of material fact as to her assault and

battery claim against Wince. 

Except for 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 claims of

fabrication of evidence or excessive force, nor did they

address any facts or issues regarding these claims. The state

22 Stemler, et al. v. City

of Florence, et al.

Nos. 01-5956/6205

courts confined themselves to the issues of probable cause

and the motive for Stemler’s arrest. The district court could

rule in Stemler’s favor without even implicitly holding that

the Kentucky courts wrongly decided the issues before them.

The Rooker-Feldman doctrine does not apply to these claims,

and the district court has jurisdiction to hear them. 

Wince also argues that claim preclusion would bar Stemler

from bringing these claims in federal court, because as she

could have brought them in state court. However, as

discussed above, the Kentucky law of claim preclusion only

bars bringing the same cause of action twice. Stemler’s claims

for falsification of evidence and excessive force could have

been brought in state court and were not. However, under

Kentucky law, as she did not bring identical causes of action

in state 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 claim preclusion did not apply to

these claims. 

IV. Conclusion

In No. 01-5956, we REVERSE the grant of summary

judgment to the defendants on Chipman’s substantive due

process claim. In No. 01-6205, we REVERSE the denial of

summary judgment with regard to Stemler’s equal protection

claim. We AFFIRM the denial of summary judgment with

regard to Stemler’s excessive force and falsification of

evidence claim. Both cases are REMANDED to the district

court for further proceedings consistent with this opinion.