UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Antonio King

v. Civil No. 04-cv-356-JD

Cesar Rivas, et al.

O R D E R

Antonio King moves to have certain statements of fact, based

on the jury’s verdict in Surprenant v. Rivas, 02-cv-391-JD, and

the appellate decision, Surprenant v. Rivas, 424 F.3d 5 (1st Cir.

2005), read as part of the jury instructions pursuant to the

doctrine of non-mutual offensive collateral estoppel. “Nonmutual collateral estoppel may be asserted offensively . . . “to

tie the defendants’ hands with an adversely decided issue from a

previous case. . . .” Acevedo-Garcia v. Monroig, 351 F.3d 547,

574 (2003). Its use, however, is limited to circumstances that

do not raise concerns about promoting judicial economy and

fairness to the defendant. Id. The defendants oppose the

plaintiff’s motion.

As a preliminary matter, the defendants argue that nonmutual collateral estoppel is not available against “the

government,” citing United States v. Mendoza, 464 U.S. 154

(1984). The defendants argue that, although two of them are sued

in their individual rather than official capacities, they should

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all be deemed to be “the government” for purposes of this issue. 

The defendants’ argument is not persuasive.

In Mendoza, the Supreme Court held that non-mutual

collateral estoppel is not available against the federal

government to preclude relitigation of issues. Id. at 160. Some

federal courts have adopted the reasoning of Mendoza to preclude

the use of non-mutual collateral estoppel against a state or

state agency. See, e.g., Idaho Potato Comm’n v. G & T Terminal

Packaging, Inc., 425 F.3d 708, 713-14 (9th Cir. 2005); Chambers

v. Ohio Dep’t of Human Servs., 145 F.3d 793, 801 n.14 (6th Cir.

1998). The defendants cite no case in which a court stretched

the holding in Mendoza to apply to a municipal defendant or

individuals, such as themselves. Cf. Acevedo-Garcia, 351 F.3d at

574-76 (applying non-mutual collateral estoppel analysis in case

with municipal defendants but concluding that lack of full and

fair opportunity to litigate issue barred its use). Therefore,

the holding in Mendoza does not support the defendants’ position.

All but one of the statements presented by King to be read

as instructions to the jury are worded in terms of conduct by the

defendants toward Jason Surprenant. As the defendants point out,

in the context of this case, those statements lack relevance

except as evidence of other bad acts that would not be admissible

absent an applicable exception to Federal Rule of Evidence

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1King has not waived the issue of the use of collateral

estoppel. Contrary to the defendants’ argument, any pretrial

question about the admissibility of evidence is unresolved until

ruled upon by the court.

3

404(b). Because King did not address Rule 404(b), the statements

referencing Surprenant are not admissible and cannot be included

as instructions to the jury.1

One of the requested statements is not phrased in terms of

Jason Surprenant. That statement is: “an official policy,

custom, or practice at the jail governed the conditions of

confinement in Unit 2B between July 14 and August 9 of 2002.” It

is undisputed that King and Surprenant were both held in Unit 2B

during that time. In Surprenant’s case, the jury found that the

conditions in Unit 2B during that time were imposed pursuant to a

policy, custom, or practice. Surprenant, 424 F.3d at 20. On

appeal, the court concluded that “[t]he conditions of confinement

were apparent to all and their risks were readily apparent,” id.

at 20, and affirmed the verdict, id. at 21. Therefore, the fact

that the conditions in Unit 2B between July 14 and August 9,

2002, were imposed pursuant to an official policy, custom, or

practice is established by the result in Surprenant. That fact

does not establish, however, what particular conditions King

experienced during that time. King must prove those conditions

at trial.

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As Acevedo-Garcia makes plain, a fact established by prior

litigation is not susceptible of use pursuant to the doctrine of

offensive non-mutual collateral estoppel unless certain concerns

of fairness are resolved in the plaintiff’s favor. Id. at 574-

76. Neither the concern that a plaintiff will “wait and see” or

that a defendant will have had little incentive to litigate in

the first action is applicable here. The most important

consideration, whether the defendants had “full and fair

opportunity to litigate their claims’ in the first trial” is

addressed as follows. Id. at 575 (internal quotation marks

omitted).

The issue of whether the conditions of confinement on Unit

2B were imposed pursuant to an official policy, custom, or

practice is the same in both cases, and the issue was litigated

both at trial and on appeal in Surprenant’s case. The issue has

been determined by a final binding judgment. The issue was

essential in Surprenant’s case, as it is here, to establish the

liability of the Hillsborough County Department of Corrections

for the conditions of confinement imposed on pretrial detainees

in Unit 2b during the stated time period. See Surprenant, 424

F.3d at 20-21. Therefore, in this case, it is established by the

jury’s verdict and the First Circuit’s decision in Surprenant

that the conditions of confinement on Unit 2b between July 14 and

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August 9, 2002, “were imposed pursuant to recognized prison

policy, custom, or practice.” Id. at 21.

Conclusion

For the foregoing reasons, the plaintiff’s motion for

instructions (document no. 25) is granted as to the statement

that “an official policy, custom, or practice at the jail

governed the conditions of confinement in Unit 2B between July 14

and August 9, 2002,” and is otherwise denied. Because that fact

is established by prior litigation, it may be used throughout the

litigation of this case and will be included in the instructions

to the jury.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

January 17, 2006

cc: John A. Curran, Esquire

Elizabeth L. Hurley, Esquire

Michael J. Sheehan, Esquire

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