69 F3d 547 Giese v. Wichita Police Department

69 F.3d 547

Kevin R. GIESE, Plaintiff-Appellant,
v.
WICHITA POLICE DEPARTMENT and Joe Doe, Law Enforcement
Officer, Defendants-Appellees.

No. 94-3439.
(D.C.No. 94-CV-3389).

United States Court of Appeals, Tenth Circuit.

Oct. 30, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before TACHA, LOGAN and KELLY, Circuit Judges.

ORDER AND JUDGMENT1

LOGAN

1

After examining the briefs and 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. We grant the right to appeal in forma pauperis in order to reach the merits of the case.

2

Pro se plaintiff Kevin R. Giese appeals dismissal of his 42 U.S.C.1983 action alleging that three unnamed Wichita police officers used excessive force against him during a stop and search, in violation of his Fourth Amendment protection from unreasonable search and seizures.

3

Plaintiff had previously filed a state court action in Kansas based on the same acts complained of in the instant case.2 The district court ordered plaintiff to show cause why the federal action should not be dismissed as barred by res judicata and collateral estoppel. Plaintiff responded by producing a copy of the state district court order "Denying Plaintiff's Ostensible Motion for Vacation of Journal Entry of Dismissal." I R. doc. 5, attachment. Although timely filed, this document was not before the district court when it dismissed the complaint. Thereafter, the district court granted plaintiff's request to reopen the matter, considered the response to the show cause order, and reaffirmed the dismissal of the action as barred by res judicata and collateral estoppel. We review this determination de novo. Hubbert v. City of Moore, 923 F.2d 769, 772 (10th Cir.1991).

4

We have significant problems with the district court's stated basis for dismissal. First, the only defendant in the state action was the City of Wichita's Police Department. The federal complaint named that department but also a "John Doe" individual police officer, and recited in the body of the complaint that three officers assaulted him. The federal district court construed the complaint as naming three unknown officers. Thus, under the standards we must apply, see Carter v. City of Emporia, 815 F.2d 617, 619 (10th Cir.1987), the four identities required for claim preclusion exist only with respect to the police department defendant, not the individual officers.

5

Further, both issue preclusion and claim preclusion (which the district court referred to respectively as collateral estoppel and res judicata) are affirmative defenses that must be affirmatively pleaded. Fed.R.Civ.P. 8(c). Here, the district court raised these defenses sua sponte. Normally failure of the parties to plead these defenses would prevent the district court from relying upon them to dismiss the case. See Zeligson v. Hartman-Blair Inc., 135 F.2d 874, 876 (10th Cir.1943). But see Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir.1993) (upholding dismissal because parties had opportunity to contest magistrate judge's sua sponte application of preclusion by objections filed with district court).

6

Also, "[u]nder collateral estoppel, or issue preclusion, 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." Northern Natural Gas Co. v. Grounds, 931 F.2d 678, 681 (10th Cir.1991). The state court dismissed plaintiff's suit against the Wichita Police Department because plaintiff did not make a presuit notice and claim required under state law before commencing an action against a municipality and because he failed to name as a defendant any person or corporation. See Journal Entry of Dismissal, April 1, 1994. The federal district court did not identify any issue of fact or law actually litigated in the state court that would be an issue in plaintiff's federal action against the individual police officers. Thus application of collateral estoppel (issue preclusion) would seem to be error.

7

Nevertheless, we uphold the dismissal on a different ground. The only facts dealing directly with the police officers' application of force to plaintiff recited in his federal complaint are as follows:

8

I was stopped on fott [sic] by three plaincloths [sic] officers in an unmarked car. One showed an [sic] badge and gun and ordered me in the car. I, scared of an [sic] hoax, ran and was tackled therefore breaking my arm and threatned [sic] while searched. The officers then realesed [sic] me without arrest.

9

Complaint at 2.

10

On or about the date of Jan. 14, 1994 on the address of approx. 250 E. Gilgert, Wicthita [sic], KS. the plaintiff was shown a police badge and chased and tackled, by the three plaincloths [sic] officers, therefore breaking the plaintiff's arm. he was then questioned and an I.D. check, and an [sic] body search done. Then the plaintiff was threatend [sic] with battery and told if he called an ambulance throught [sic] them there would be more trouble. The plaimtiff [sic] was released.

11

Id. at 3.

12

Taken as true, these allegations do not show use of "excessive" force necessary to constitute a violation of plaintiff's constitutional rights. When plaintiff, as a suspect, was shown the police officers' credentials and ordered into a police car, and he decided to run, it was not the application of constitutionally excessive force when the officers ran after and tackled him. See Hinton v. City of Elwood, 997 F.2d 774, 780-81 (10th Cir.1993) (test for whether police officer's use of force was constitutionally excessive is whether, under the circumstances, his actions were objectively reasonable). Further, that plaintiff's arm was broken when he was tackled does not by itself show any fault of the police officers. Verbal threats during questioning also do not constitute the use of excessive force. Thus, dismissal of the complaint was proper on this basis.

13

AFFIRMED.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

We have supplemented the record with the state court complaint and other pleadings