F I L E D

United States Court of Appeals

Tenth Circuit

OCT 15 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JEFF H. KINSLOW, 

Plaintiff - Appellant,

v. No. 98-6055

DENNIS RATZLAFF, individually;

RONDELL SERATTE, individually;

STATE OF OKLAHOMA, ex rel.

Oklahoma Highway Patrol; and CITY

OF COMANCHE, OKLAHOMA,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-62)

Submitted on the briefs:

Brian M. Dell, P.C., Oklahoma City, Oklahoma, for Plaintiff-Appellant.

David W. Kirk of Carter & Kirk, P.C., Oklahoma City, Oklahoma, for DefendantAppellees Rondell Seratte and City of Comanche, Oklahoma.

Cara Epps Clifton, Legal Division, Department of Public Safety, Oklahoma City,

Oklahoma, for Defendants-Appellees Dennis Ratzlaff and the Oklahoma Highway

Patrol.

 
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Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

 

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

After an Oklahoma state court dismissed a criminal proceeding against

Plaintiff that involved charges of reckless driving, operating an overweight

vehicle, and listening to police broadcasts, Plaintiff filed a 42 U.S.C. § 1983

action against Defendants in which he alleged various civil rights violations

including false arrest and unlawful search and seizure and pendent state claims

based on malicious prosecution and the Oklahoma Tort Claims Act. The district

court granted summary judgment to Defendants and dismissed the action. 

Plaintiff appeals. We review a grant of summary judgment de novo, applying the

same legal standard used by the district court pursuant to Federal Rule of Civil

Procedure 56(c). See Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th

Cir. 1995). 

Plaintiff contends that the district court erroneously granted Defendants
1We note that the requirements for collateral estoppel under federal law

appear to be substantially the same as under Oklahoma law. Compare Murdock,

975 F.2d at 687, with Fent v. Oklahoma Natural Gas Co., 898 P.2d 126, 133-34

(Okla. 1994), and Adamson v. Dayton Hudson Corp., 774 P.2d 478, 480 (Okla.

Ct. App. 1989).

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qualified immunity because it was precluded from reexamining the legality of the

search and seizure of his truck and his arrest by a prior state court determination

which found no probable cause to prosecute. See Appellant’s App. at 332, 334. 

A party's ability to relitigate an issue decided in a prior state court determination

depends on the law of the state in which the earlier litigation occurred. See 28

U.S.C. § 1738; Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81

(1984); Allen v. McCurry, 449 U.S. 90, 96 (1980); cf. Murdock v. Ute Indian

Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 687 (10th Cir. 1992)

(applying federal law of collateral estoppel because “examining a question of

federal law upon which another federal court, namely the Supreme Court, has

previously ruled”), cert. denied, 507 U.S. 1042 (1993).1 Under Oklahoma law,

“once a court has decided an issue of fact or law necessary to its judgment, the

same parties or their privies may not relitigate the issue in a suit brought upon a

different claim.” Fent v. Oklahoma Natural Gas Co., 898 P.2d 126, 133 (Okla.

1994); see McCurry, 449 U.S. at 94-95. Preclusion operates to bar a person’s

litigation of an issue only if that person was afforded a “full and fair opportunity”

to litigate the critical issue in the prior action. Fent, 898 P.2d at 133; see also
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Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 328, 332-33 (1979) (indicating

that “‘the requirement of determining whether the party against whom an estoppel

is asserted had a full and fair opportunity to litigate’” applies to offensive

collateral estoppel) (citation omitted); Hubbert v. City of Moore, 923 F.2d 769,

772-73 (10th Cir. 1991) (holding that a prior finding of probable cause against a

criminal defendant in her criminal prosecution is binding on that individual in

subsequent civil rights claims against the arresting officers because she had full

and fair opportunity to litigate claim).

In order for issue preclusion to apply to this case, Defendants, Officers

Ratzlaff and Serrate, who were the arresting officers in Plaintiff’s criminal

proceeding, must have been parties to that criminal proceeding or in privity with

the parties in that action. See Hildebrand v. Gray, 866 P.2d 447, 450-51 (Okla.

Ct. App. 1993). Clearly, the officers were not parties to Plaintiff’s criminal

proceeding. Plaintiff’s opponent was the State of Oklahoma. Officers Ratzlaff

and Seratte had no control over the prosecution of the criminal case and their role

“at the [preliminary] hearing was simply that of a witness for the prosecution.” 

Duncan v. Clements, 744 F.2d 48, 52 (8th Cir. 1984). The officers “could not call

witnesses, . . . direct the examination of the State’s witnesses, . . . [or] choose the

counsel who represented the State at the suppression hearing. Nor could the

officers appeal the ruling once it was made.” Harris v. Jones, 471 N.W.2d 818,
2Oklahoma law requires that, “[i]n order for the ‘privity’ rule to apply, the

party in privity must actually have the same interest, character, or capacity as the

party against whom the prior judgment was rendered.” Hildebrand, 866 P.2d at

450-51. “[T]he scope of who qualify [sic] as ‘privies’ varies according to the

circumstances of the particular case . . . and [generally] . . . such privity involves

a person so identified in interest with another that he represents the same legal

right.” Id. at 451; see also Greco v. Foster, 268 P.2d 215, 220 (Okla. 1954)

(stating that privity means a mutual or successive relationship to the same rights

or property of the party).

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820 (Iowa 1991); accord Duncan, 744 F.2d at 52-53; Jackson v. Ramundo, No. 95

Civ. 5832, 1997 WL 678167, at *4 (S.D.N.Y. Oct. 30, 1997) (stating that

collateral estoppel did not apply to section 1983 action because officer was not

party or privy to criminal case); Trujillo v. Simer, 934 F. Supp. 1217, 1224 (D.

Colo. 1996) (holding that collateral estoppel was inapplicable because customs

officers were not parties to the criminal case and were not in privity with the

party); Griffin v. Strong, 739 F. Supp. 1496, 1502-03 (D. Utah 1990)

(determining that officer was not a party to or in privity with the state in

plaintiff’s criminal case); Brown v. City of New York, 458 N.E.2d 1250, 1251

(N.Y. 1983) (holding that determination in criminal case on unlawfulness of

plaintiff’s arrest does not bar city from contesting the unlawfulness of arrest in

subsequent civil action).

Although Oklahoma courts have not addressed the precise problem that

confronts us, we also believe that, under Oklahoma’s definition of privity,2 the

officers were not in privity with the State of Oklahoma. The officers are being
3While a government official sued in his official capacity may be in privity

with the government, see, e.g., Tait v. Western Md. Ry. Co., 289 U.S. 620, 627

(1933), we are aware of no case in which a person, sued individually, has been

precluded from litigating an issue because of a ruling adverse to the state in a

prior criminal prosecution.

4Although the party/privy element and full and fair opportunity element are

two separate requirements for issue preclusion, they are closely related. 

Generally, when one is not a party or privy to the earlier proceeding, one has not

(continued...)

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sued in their individual capacity3

 in this action and their personal interests, which

were not at stake in the criminal proceeding, differ from Oklahoma’s interests. 

See Hildebrand, 866 P.2d at 450-51; see also Tierney v. Davidson, 133 F.3d 189,

195 (2d Cir. 1998) (applying Vermont law to hold that officers were not parties or

privies to earlier action); 18 Charles A. Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 4458, at 508 (1981) (“[A] judgment

against a government does not bind its officials in subsequent litigation that

asserts a personal liability against the officials.”). “The mere fact that [the

officers] happen[ed] to be interested in a particular question, or in proving a state

of facts as may have been presented in [the prior action,] . . . does not establish

that they were in privity with any of the parties in that action.” Bowen v. Brock,

244 P.2d 546, 552 (Okla. 1952); see Duncan 744 F.2d at 52. Because the officers

were neither parties nor privies to the prior state court determination and,

therefore, did not have a full and fair opportunity to litigate in state court the

constitutionality of the issues in this section 1983 action,4 the doctrine of issue
4

(...continued)

had a full and fair opportunity to litigate an issue. See Tierney, 133 F.3d at 196

(“[T]he Officers did not have a full and fair opportunity to litigate in the state

court because they were not parties to that action . . . .”); Kraushaar v. Flanigan,

45 F.3d 1040, 1050-51 (7th Cir. 1995) (holding that dismissal of criminal charges

against plaintiff for lack of probable cause did not preclude relitigation of

probable cause issue by defendant police officials in wrongful arrest action);

Duncan, 744 F.2d at 52 (holding defendant officer was not bound by prior

determination because he was not party to prosecution or in privity with

prosecutor); Davis v. Eide, 439 F.2d 1077, 1078 (9th Cir.) (adverse rulings in

criminal action did not preclude defendant police officers from litigating

lawfulness of search in civil action), cert. denied, 404 U.S. 843 (1971); Griffin,

739 F. Supp. at 1503 & n.6 (holding that collateral estoppel does not apply

because detective’s interests were not adequately protected or represented in prior

criminal adjudication brought by the state); see also Willner v. Budig, 848 F.2d

1032, 1034 n.2 (10th Cir. 1988) (finding elements of res judicata not satisfied

because officials sued in individual capacity were not in privity with the

university).

5

 We also affirm the district court’s summary judgment on all the other

issues raised by Plaintiff. The court correctly dismissed Plaintiff’s two pendent

state claims based on malicious prosecution and the Oklahoma Tort Claims Act in

its Order filed January 9, 1998.

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preclusion does not apply to this case. Thus, “we need not decide whether the

other elements of collateral estoppel are met.” Orjias v. Stevenson, 31 F.3d 995,

1010 (10th Cir. 1994). We therefore conclude that the district court did not err in

granting Defendants qualified immunity from suit based on counts 1, 2, and 3 of

Plaintiff’s amended complaint.5

AFFIRMED.