### The Honorable Carol E. Jackson, United States District 1 

### Judge for the Eastern District of Missouri, adopting the review and recommendation of the Honorable William S. Bahn, United States Magistrate Judge for the Eastern District of Missouri. ___________ No. 95-1173

___________ David Simmons, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Mike O'Brien, Detective, * Captain; William Turner, * Lieutenant; Don Gault, * Detective; Patrick Conway, * Detective; M. J. Walsh, * Detective; City of Overland, * * Appellees. *

__________ Submitted: September 12, 1995 Filed: March 4, 1996

__________ Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.

___________ MAGILL, Circuit Judge.

Dav id Simmons appeals the district court's dismissal withou t 1 prejudice of his 42 U.S.C. § 1983 claim that defendants, officers of the St. Louis Metropolitan Police Department, coerced his confession through the use of racial slu rs and excessive physical force. Because the claims
are barr ed by issue preclusion and should have been dismissed wit h prejudice, we affirm in part and

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reverse in part.

I.

On August 20, 1990, officers of the St. Louis police departmen t questioned Simmons about the murder of Meredith Marshall, Simmons ' girlfriend's mother, and the theft of Marshall's car. After several hours of que stioning, Simmons made a videotaped confession. Following th e vide otaped confession, questioning continued for two more days, durin g which the police took more statements.

Prior to trial, on August 21, 1991, Simmons moved to suppress th e confession and any other statements made to the police on the grounds that his Fifth and Fourtee nth Amendment rights were violated. Simmons alleged that he w as not specifically made aware of his Miranda rights; that th e length and nature of the interrogation were inherently coercive given his education, background , and physical and mental condition; and that he was subjected to physical and psychological duress during the interrogation an d the taking of his confession.

The trial court denied the motion to suppress on September 13, 1991. Following a jury trial on October 24, 1991, Simmons was found guilty o f second degree murder and first degree burglary. He was sentenced to life in pr ison for the murder conviction and fifteen years for the burglar y conviction. Simmons' petition for postconviction relief was denied. In his subsequent direct appeal, Simmons alleged pr ocedural errors as grounds for reversal, but he did not challenge the suffi ciency of the evidence nor did he challenge the admission of the confession. The Missouri Court of Appeals upheld both the conviction and the denial of postconviction relief

. State v. Simmons , 865 S.W.2d 893 (Mo. Ct. App. 1993).
Simmons then brought this § 1983 action seeking damages,

### The Fifth Circuit has held that allegations of racial 2 

### insults and harassment can present a cognizable claim under § 1983. See Johnson v. Morel , 876 F.2d 477, 479 (5th Cir. 1989) (en banc), overruled on other grounds by Harper v. Harris County, Tex. , 21 F.3d 597 (5th Cir. 1994).
-3- all eging that defendants used excessive physical force, psychologica l duress, and racial slurs in coercing his confession. Specifically , 2 Simmons contends that he was choked several times, kicked in the stomach, and punched in the face; that pins were continually stuck in his hand s unti l he confessed; and that, when he would not confess, one office r threatened to "take this nigger somewhere in (sic) kill him." Further , Simmons maintains that the police repeatedly referred to him as "nigger" and that they told him they were trying to coerce his confession solel y because he is an African-American.
The trial court granted summary judg ment for the defendants based on Heck v. Humphrey , 114 S. Ct. 2364 (1994), holding that until a habeas cour t ruled on the validity of Simmons' conviction, a ruling on the excessiv e force and racial slurs claims would be premature. This appeal followed.

II.

As a thre shold matter, we must determine whether Simmons' claim for damages is presently cognizable under § 1983. I n Heck , supra , the Supreme Court held that where "judgment in favor of the plaintiff would necessaril y imply the invalidity of his conviction," id. at 2372, a cause of action ha s not accrued unless the plaintiff can demonstrate that the conviction o r sentence h as already been invalidated by a state court or called int o quest ion by a federal habeas court. Id. Where, however, "plaintiff' s action, even if successful, will not demonstrate the invalidity of an y outstanding criminal judgment against the plaintiff, the action should be allowed to proceed." Id.

### -4- The Court offered an example of a § 1983 suit that should be allowed to proceed: suits for damages for allegedly unreasonable searches, even when s uch searches yielded evidence admitted at trial, resulting i n conviction. Because of doctrines such as independent source, inevitable discovery, and, most importantly, harmless error, "such a § 1983 action,
even i f successful, would not necessarilyimply that the plaintiff' s conviction was unlawful," and thus the action sh ould proceed. Id. at 2372 n.7.
We believe that this reasoning shoul d be extended to Fifth Amendment claims challenging the voluntariness of confessions. In Arizona v

. Fulminante , 499 U.S. 279 (1991), the Supreme Court held that, in terms of effect on trial, there was no qualitative distinction between the admissio n at trial of illegally seized evidence and the admission of involuntar y confessio ns. Id. at 310. In applying harmless error analysis to a confession obtained in violation of the Fifth Am endment, the Supreme Court noted:

The admission of an invo luntary confession is a "trial error," similar in both degree and kind to the erroneous admission of oth er types of evidence. The evidentiary impact of a n involuntary confession, and its effect upon the composition of the record, is indistinguishable from that . . . of evidenc e seized in violation of the Fourth Amendment . . . .

Id.

Because harmless error analysis is applicable to the admission a t trial of coerced conf essions, judgment in favor of Simmons on this § 1983 acti on challenging his confession will not necessarilydemonstrate th e inval idity of his conviction. See Heck , 114 S. Ct. at 2372 n.7. Thus , Simmons' cause of action has accrued.

III.
At issue is whether Simmons' § 1983 claims are barred by issue

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preclu sion because the excessive force and racial slurs claims wer e necessarily litigated and decided against Simmon s at the state suppression hearing. We hold that they are.

A.

Und er issue preclusion (collateral estoppel), "once a court ha s decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry , 449 U.S. 90, 94 (1980) (citing Montana v. United States , 440 U.S. 147, 153 (1979)); see also Restatement (Second) of Judgments § 27 (1982).
This preclusion principle is rooted in concerns of judicial economy. By precluding parties from contesting matters that they have had a full an d fair opportunity to litigate, issue preclusion a cts to "relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance o n adjudication." McCur ry , 449 U.S. at 94 (citing Montana , 440 U.S. at 153- 54); see also University of Tenn. v. Elliott , 478 U.S. 788, 798 (1986 ) (noting that preclusion principles "enforce repose").

Of c ourse, "central to the fair administration of preclusio n doc trine" is the notion that a party will be bound only if it had "a n adequate opportunity or incentive to obtain a full and fair adjudication in the first proceedi ng." Restatement (Second) of Judgments § 28 cmt. j. Only when a party has previously had such a full and fair opportunity to litiga te that issue does the benefits of preclusion outweigh th e countervailing due process concerns present whenever a party is estopped from raising a claim. See Blonder-Tongue Lab., Inc. v. University of Ill. Found. , 402 U.S. 313, 328-30 (1971).

### -6- This defe rence to prior adjudication extends not only to antecedent decisions of federal courts, but to those of the state courts as well

. Under the federal full faith and credit statute,
judicial proceedings [of any court of any State] sh all have the same fu ll faith and credit in every court within the Unite d States and its Territori es and Possessions as they have by law or usage in the courts of such State . . . .

28 U.S.C. § 1738 (1988). Thus, federal courts must give preclusive effect to state court judgments, and the scope of the preclusive effect i s governed by the law of the state from which the prior judgment emerged

. See Migra v. Warren C ity Sch. Dist. Bd. of Educ. , 465 U.S. 75, 81 (1984). This deference "promote[s] the comity between state and federal courts tha t has been recognized as a bulwark of the federal system." McCurry , 449 U.S

. at 95-96 (citing Younger v. Harris , 401 U.S. 37, 43-45 (1971)).

Prior sta te court adjudications are given preclusive effect even in later federal § 1983 actions. In McCurry , the Supreme Court noted that, while § 1983 "alter[s] the balance of judicial p ower between the state and federal courts," McCurry , 449 U.S. at 99, nothing in § 1983 or it s legislative history s uggests that Congress intended to repeal or restrict the tradi tional doctrines of preclusion. Id. at 98-101. The Cour t reasoned that the Civil Rights Acts were passed to allow "federal courts to step in where the state courts were unable or unwilling to protec t federal ri ghts," id. at 101; to the extent that issue preclusion onl y applies where a party had a full and fair opportunity to litigate the issu e in the first proceeding, the preclusive effect of state judgments is not incompatible with § 1983. Id.
When a federal constitutional issue is previously decided in a state crimin al proceeding following a full and fair hearing, issue preclusio n will therefore bar relitigation of that issue in

### While McCurrydealt with a Fourth Amendment violation, its 3 

### reasoning has been extended to Fifth Amendment claims. Baker v. McCoy , 739 F.2d 381, 384 (8th Cir. 1984); Gray v. Farley , 13 F.3d 142, 146 (4th Cir. 1994).

-7- a § 1983 action. McCurry , 449 U.S. at 103-04; M unz v. Parr , 972 F.2d 971, 973 (8th Cir. 1992). 3

B.

We look to the Missouri law of issue preclusion in determining th e preclusive effect given to the state trial court's decision to admit the confession into evidence. See Baker v. McCoy , 7 39 F.2d 381, 384 (8th Cir. 1984). In Missouri, issue preclusion will apply when: (1) the issue in th e present action is identical to the issue decided in the prior adjudication ; (2) t he prior adjudication resulted in judgment on the merits; (3) th e party against whom issue preclusion is asserted was a party or is i n privity with a party to the prior adjudication; and (4) the party against whomcollateral estoppel is asserted had a full and fair opportunity t o litigate the issue inthe prior suit. State ex rel. Haley v. Groose , 873 S.W.2d 221, 223 (Mo. banc 1994).

The last three elements are clearly met in this case. Simmons ' conviction and the denial of the motion to suppress were on the merits, an d Simmons was a party t o the prior proceeding. Further, the state, through the suppression hearing, afforded Simmons a full and fair opportunity to litigate t he claims now raised in his § 1983 action, and he had ful l incentive to litigate the issues.

As to the first element, even though the state trial judge made n o explicit findings of fact and law when he overruled the motion to suppress , we are satisfied that, on the record before us, the issues of excessive us e of force and racial slurs and the

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vol untariness of Simmons' confession were raised in the state court an d necessarily decided against Simmons in that forum.
In his state motion to suppress, Sim mons alleged that his confession
was in voluntary because he was "subjected to mental, physical, an d psycho logical duress during said interrogation." The state trial judg e rejected this contention. Because coerced, involuntary confessions ar e inadmissible at trial, see Colorado v. Connelly , 479 U.S. 157, 163 (1986), we may properly infer that, by admitting the con fession into evidence, the state trial judge considered the confession voluntary and not coerced.

It is this same issue, the voluntariness of his confession, tha t Simmons raises in his § 1983 action. Although S immons protests that he is asserting an excessive use of force claim and an equal protection clai m apa rt from challenging the confession, this contention is belied by th e language o f his complaint. In four separate counts in his complaint , Simmons alleges that police used excessive physi cal force and violated his equal pro tection rights. In each count, Simmons goes on to allege tha t police officers intentionally used such physical and mental abuse to coerc e his confession and that the abuse resulted in such a coerced confession. For e xample, in Count I, Simmons alleges that excessive force was use d against him and that such force was "intentionally used to coerce Plaintif f into confessing," andthat, as a result of such physical abuse, plaintiff was in fact "coerced into confessing to a murder which he did not commit." See Second Am. Compl., Count I. This language is repeated in Counts II, III, and V.
Based on the language of the compla int, it is clear that Simmons is ulti mately challenging the voluntariness of the confession and seekin g damages fo r a coerced confession. Any differences between the § 198 3 excessive use of force claim and equal protection claim and the coercion claim asserted at the

### We recognize that Simmons was much more explicit about the 4 

### scope of his claims in his § 1983 complaint than in his motion to suppress. In support of his motion to suppress, Simmons merely stated that he was "subjected to mental, physical, and psychological duress during said interrogation." In support of his § 1983 complaint, Simmons depicts a night of torture during which officers punched and kicked him, stuck pins in him, threatened to shoot him, used racial slurs against him, and singled him out for abuse solely because of his race, all in an attempt to coerce Simmons to confess. However, it is not required for issue preclusion that the issues be raised, or even argued, with the same level of clarity or intensity in each proceeding. For issue preclusion to apply, the issue raised in the second proceeding need only have been raised in the first proceeding by the party sought to be precluded and necessarily determined on the merits in a proceeding affording a full and fair opportunity to litigate the issue. There is no further requirement that the party actually take advantage of that opportunity to fully and fairly litigate the issue.
-9- suppression hearing "appear to us no more than cosmetic changes" made by Simmons in order to "perpetuate litigation on the same basic issues. " McLaughli n v. Bradlee , 803 F.2d 1197, 1202 (D.C. Cir. 1986). Thus, th e first element of issue preclusion, that the issue be raised and necessaril y determined in the first proceeding, is met. 4
Because Simmons raised the issue of coercion at the state suppr ession hearing, the issue was determined on the merits at the first proceeding, and Simmons was afforded a full and fair opportunity to litigate the claim , he is estopped from relitigating this issue in f ederal court. See Robbins

v. Clarke , 946 F.2d 1331, 1334 (8th Cir. 1991) (issue preclusion i s appropriate where party merely gives "slightly different verbal twist to [his] claim" and the claim is "simply the same claim repackaged").

IV.

The district court determined that, under Heck v. Humphrey , supra , Simmons' § 1983 claim had not yet accrued, and thus the

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court dismissed Simmons' claim without prejudice. We disagree with this conclusion and conclu de that Simmons can presently raise his claims under § 1983. However, Simmons' claims were already litigated and decided at th e state suppression hearing, and he is thus preclu ded from relitigating them in this forum. Accordingly, we dismiss the complaint with prejudice.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.