## 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 P laintiff-Appellant. David W. Kirk of Carter & Kirk, P.C., Oklahoma City , Oklahoma, for DefendantAppellees Rondell Seratte and City of Comanche, Okl ahoma. Cara Epps Clifton, Legal Division, Department of Pu blic Safety, Oklahoma City, Oklahoma, for Defendants-Appellees Dennis Ratzlaff and the Oklahoma Highway Patrol.-2-

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 notmaterially 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 ar gument. 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, Plaint iff filed a 42 U.S.C. § 1983 action against Defendants in which he alleged vario us civil rights violations including false arrest and unlawful search and seiz ure and pendent state claims based on malicious prosecution and the Oklahoma Tort Claims Act. The district court granted summary judgment to Defendants and di smissed the action. Plaintiff appeals. We review a grant of summary ju dgment de novo , applying the same legal standard used by the district court purs uant 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 erroneou sly granted Defendants1 We note that the requirements for collateral estopp el under federal law

appear to be substantially the same as under Oklaho ma law. Compare Murdock , 975 F.2d at 687, with Fent v. Oklahoma Natural Gas Co. , 898 P.2d 126, 133-34 (Okla. 1994), andAdamson v. Dayton Hudson Corp. , 774 P.2d 478, 480 (Okla. Ct. App. 1989). -3- qualified immunity because it was precluded from re examining the legality of the search and seizure of his truck and his arrest by aprior 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 earlie r 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 becaus e “examining a question of federal law upon which another federal court, namel y 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 n ecessary to its judgment, the same parties or their privies may not relitigate th e 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 affo rded a “full and fair opportunity” to litigate the critical issue in the prior action. Fent , 898 P.2d at 133; see also-4-

Parklane Hosiery Co., Inc. v. Shore , 439 U.S. 322, 328, 332-33 (1979) (indicating that “‘the requirement of determining whether the p arty against whom an estoppel is asserted had a full and fair opportunity to liti gate’” 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 findi ng of probable cause against a criminal defendant in her criminal prosecution is b inding on that individual in subsequent civil rights claims against the arrestin g 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 office rs 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 “c ould not call witnesses, . . . direct the examination of the Stat e’s witnesses, . . . [or] choose the counsel who represented the State at the suppressio n hearing. Nor could the officers appeal the ruling once it was made.” Harr is v. Jones , 471 N.W.2d 818,2 Oklahoma law requires that, “[i]n order for the ‘pr ivity’ rule to apply, the

party in privity must actually have the same intere st, 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 ‘priv ies’ varies according to the circumstances of the particular case . . . and [gen erally] . . . 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). -5- 820 (Iowa 1991); accordDuncan , 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 a ction 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 i napplicable 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 Yo rk , 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 contestin g the unlawfulness of arrest in subsequent civil action). Although Oklahoma courts have not addressed the pre cise problem that confronts us, we also believe that, under Oklahoma’ s definition of privity, 2the officers were not in privity with the State of Oklahoma. The officers are being3 While 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 rul ing 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, the y are closely related. Generally, when one is not a party or privy to the earlier proceeding, one has not (continued...) -6- sued in their individual capacity 3 in this action and their personal interests, which were not at stake in the criminal proceeding, diffe r 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 th at officers were not parties or privies to earlier action); 18 Charles A. Wright, A rthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4458, at 5 08 (1981) (“[A] judgment against a government does not bind its officials insubsequent litigation that asserts a personal liability against the officials. ”). “The mere fact that [the officers] happen[ed] to be interested in a particul ar question, or in proving a state of facts as may have been presented in [the prior a ction,] . . . does not establish that they were in privity with any of the parties i n that action.” Bowen v. Brock , 244 P.2d 546, 552 (Okla. 1952); see Duncan744 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 opportunityto litigate in state court the constitutionality of the issues in this section 198 3 action, 4the doctrine of issue4 (...continued)

had a full and fair opportunity to litigate an issu e. 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 thatdismissal of criminal charges against plaintiff for lack of probable cause did no t preclude relitigation of probable cause issue by defendant police officials in wrongful arrest action); Duncan , 744 F.2d at 52 (holding defendant officer was notbound by prior determination because he was not party to prosecuti on or in privity with prosecutor); Davis v. Eide , 439 F.2d 1077, 1078 (9th Cir.) (adverse rulings i n criminal action did not preclude defendant police o fficers 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 p rotected or represented in prior criminal adjudication brought by the state); see al so Willner v. Budig , 848 F.2d 1032, 1034 n.2 (10th Cir. 1988) (finding elements o f 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 judgme nt on all the other issues raised by Plaintiff. The court correctly di smissed Plaintiff’s two pendent state claims based on malicious prosecution and the Oklahoma Tort Claims Act in its Order filed January 9, 1998. -7- preclusion does not apply to this case. Thus, “we need not decide whether the other elements of collateral estoppel are met.” Or jias 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 ba sed on counts 1, 2, and 3 of Plaintiff’s amended complaint. 5
AFFIRMED.