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.

David Simmons appeals the district court's dismissal without

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 slurs and excessive physical force. Because the claims

are barred by issue preclusion and should have been dismissed with

prejudice, we affirm in part and
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reverse in part.

I.

On August 20, 1990, officers of the St. Louis police department

questioned Simmons about the murder of Meredith Marshall, Simmons'

girlfriend's mother, and the theft of Marshall's car. After several hours

of questioning, Simmons made a videotaped confession. Following the

videotaped confession, questioning continued for two more days, during

which the police took more statements.

Prior to trial, on August 21, 1991, Simmons moved to suppress the

confession and any other statements made to the police on the grounds that

his Fifth and Fourteenth Amendment rights were violated. Simmons alleged

that he was not specifically made aware of his Miranda rights; that the

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 and

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 of

second degree murder and first degree burglary. He was sentenced to life

in prison for the murder conviction and fifteen years for the burglary

conviction. Simmons' petition for postconviction relief was denied. In

his subsequent direct appeal, Simmons alleged procedural errors as grounds

for reversal, but he did not challenge the sufficiency 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).

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alleging that defendants used excessive physical force, psychological

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 hands

until he confessed; and that, when he would not confess, one officer

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 solely

because he is an African-American. 

The trial court granted summary judgment for the defendants based on

Heck v. Humphrey, 114 S. Ct. 2364 (1994), holding that until a habeas court

ruled on the validity of Simmons' conviction, a ruling on the excessive

force and racial slurs claims would be premature. This appeal followed.

II.

As a threshold matter, we must determine whether Simmons' claim for

damages is presently cognizable under § 1983. In Heck, supra, the Supreme

Court held that where "judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction," id. at 2372, a cause of action has

not accrued unless the plaintiff can demonstrate that the conviction or

sentence has already been invalidated by a state court or called into

question by a federal habeas court. Id. Where, however, "plaintiff's

action, even if successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action should be

allowed to proceed." Id.
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The Court offered an example of a § 1983 suit that should be allowed

to proceed: suits for damages for allegedly unreasonable searches, even

when such searches yielded evidence admitted at trial, resulting in

conviction. Because of doctrines such as independent source, inevitable

discovery, and, most importantly, harmless error, "such a § 1983 action,

even if successful, would not necessarily imply that the plaintiff's

conviction was unlawful," and thus the action should proceed. Id. at 2372

n.7.

We believe that this reasoning should 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 admission

at trial of illegally seized evidence and the admission of involuntary

confessions. Id. at 310. In applying harmless error analysis to a

confession obtained in violation of the Fifth Amendment, the Supreme Court

noted:

The admission of an involuntary confession is a "trial error,"

similar in both degree and kind to the erroneous admission of

other types of evidence. The evidentiary impact of an

involuntary confession, and its effect upon the composition of

the record, is indistinguishable from that . . . of evidence

seized in violation of the Fourth Amendment . . . .

Id.

Because harmless error analysis is applicable to the admission at

trial of coerced confessions, judgment in favor of Simmons on this § 1983

action challenging his confession will not necessarily demonstrate the

invalidity 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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preclusion because the excessive force and racial slurs claims were

necessarily litigated and decided against Simmons at the state suppression

hearing. We hold that they are.

A.

Under issue preclusion (collateral estoppel), "once a court has

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 and

fair opportunity to litigate, issue preclusion acts to "relieve parties of

the cost and vexation of multiple lawsuits, conserve judicial resources,

and, by preventing inconsistent decisions, encourage reliance on

adjudication." McCurry, 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 course, "central to the fair administration of preclusion

doctrine" is the notion that a party will be bound only if it had "an

adequate opportunity or incentive to obtain a full and fair adjudication

in the first proceeding." Restatement (Second) of Judgments § 28 cmt. j.

Only when a party has previously had such a full and fair opportunity to

litigate that issue does the benefits of preclusion outweigh the

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).
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This deference 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] shall have the

same full faith and credit in every court within the United

States and its Territories 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 is

governed by the law of the state from which the prior judgment emerged.

See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

This deference "promote[s] the comity between state and federal courts that

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 state 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 power between the state and

federal courts," McCurry, 449 U.S. at 99, nothing in § 1983 or its

legislative history suggests that Congress intended to repeal or restrict

the traditional doctrines of preclusion. Id. at 98-101. The Court

reasoned that the Civil Rights Acts were passed to allow "federal courts

to step in where the state courts were unable or unwilling to protect

federal rights," id. at 101; to the extent that issue preclusion only

applies where a party had a full and fair opportunity to litigate the issue

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

criminal proceeding following a full and fair hearing, issue preclusion

will therefore bar relitigation of that issue in
 While McCurry dealt 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).

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a § 1983 action. McCurry, 449 U.S. at 103-04; Munz v. Parr, 972 F.2d 971,

973 (8th Cir. 1992).3

B.

We look to the Missouri law of issue preclusion in determining the

preclusive effect given to the state trial court's decision to admit the

confession into evidence. See Baker v. McCoy, 739 F.2d 381, 384 (8th Cir.

1984). In Missouri, issue preclusion will apply when: (1) the issue in the

present action is identical to the issue decided in the prior adjudication;

(2) the prior adjudication resulted in judgment on the merits; (3) the

party against whom issue preclusion is asserted was a party or is in

privity with a party to the prior adjudication; and (4) the party against

whom collateral estoppel is asserted had a full and fair opportunity to

litigate the issue in the 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, and

Simmons was a party to the prior proceeding. Further, the state, through

the suppression hearing, afforded Simmons a full and fair opportunity to

litigate the claims now raised in his § 1983 action, and he had full

incentive to litigate the issues. 

As to the first element, even though the state trial judge made no

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 use

of force and racial slurs and the
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voluntariness of Simmons' confession were raised in the state court and

necessarily decided against Simmons in that forum.

In his state motion to suppress, Simmons alleged that his confession

was involuntary because he was "subjected to mental, physical, and

psychological duress during said interrogation." The state trial judge

rejected this contention. Because coerced, involuntary confessions are

inadmissible at trial, see Colorado v. Connelly, 479 U.S. 157, 163 (1986),

we may properly infer that, by admitting the confession into evidence, the

state trial judge considered the confession voluntary and not coerced.

It is this same issue, the voluntariness of his confession, that

Simmons raises in his § 1983 action. Although Simmons protests that he is

asserting an excessive use of force claim and an equal protection claim

apart from challenging the confession, this contention is belied by the

language of his complaint. In four separate counts in his complaint,

Simmons alleges that police used excessive physical force and violated his

equal protection rights. In each count, Simmons goes on to allege that

police officers intentionally used such physical and mental abuse to coerce

his confession and that the abuse resulted in such a coerced confession.

For example, in Count I, Simmons alleges that excessive force was used

against him and that such force was "intentionally used to coerce Plaintiff

into confessing," and that, 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 complaint, it is clear that Simmons is

ultimately challenging the voluntariness of the confession and seeking

damages for a coerced confession. Any differences between the § 1983

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.

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suppression hearing "appear to us no more than cosmetic changes" made by

Simmons in order to "perpetuate litigation on the same basic issues."

McLaughlin v. Bradlee, 803 F.2d 1197, 1202 (D.C. Cir. 1986). Thus, the

first element of issue preclusion, that the issue be raised and necessarily

determined in the first proceeding, is met.4

Because Simmons raised the issue of coercion at the state suppression

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 federal court. See Robbins

v. Clarke, 946 F.2d 1331, 1334 (8th Cir. 1991) (issue preclusion is

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 conclude that Simmons can presently raise his claims under

§ 1983. However, Simmons' claims were already litigated and decided at the

state suppression hearing, and he is thus precluded 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.