
USCA1 Opinion

	




        June 18, 1992            ____________________        No. 91-2320                                 JAMES P. KYRICOPOULOS,                                Plaintiff, Appellant,                                          v.                                   TOWN OF ORLEANS,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                                 ____________________            James P. Kyricopoulos on brief pro se.            _____________________            Kimberly M. Saillant and Morrison, Mahoney  & Miller on brief  for            ____________________     ___________________________        appellee.                                 ____________________                                 ____________________                      Per   Curiam.    Appellant  James  P.  Kyricopoulos                      ____________            appeals  from the judgment of the district court granting the            motion for summary judgment of appellee Town of Orleans.                                          I.                                          __                      Appellant filed a complaint  under 42 U.S.C.   1983            in  which he alleged that he  had been "maliciously" arrested            without probable  cause, that  an Orleans police  officer had            "maliciously"  obtained  a  search  warrant  without probable            cause,  and  that this  officer  had  committed perjury  both            before  the  grand jury  and  at  appellant's state  criminal            trial.  Appellant sought $32,000,000 in damages.                      Appellant  was indicted  on charges  of  larceny by            false  pretenses concerning  the  sale and  leasing of  motor            vehicles from Atlantic Security Leasing Corp. ("Atlantic"), a            company which appellant allegedly owned.  A jury-waived trial            was  held on  February 6  and 7,  1989.  Appellant  was found            guilty.  He then filed a timely notice of appeal.  Before the            Massachusetts Appeals  Court ruled  on  his appeal,  however,            appellant initiated the present  action.  Thus, had  the town            raised the issue, Younger abstention would in all probability                              _______            have required the district court to abstain from adjudicating            the    1983  action  until  the  completion of  the  criminal            proceedings.1  Because Younger  abstention may be waived, see                                   _______                            ___                                            ____________________            1.  Under Younger  v. Harris, 401  U.S. 37 (1971),  a federal                      _______     ______            court, in the absence of extraordinary circumstances,  cannot            interfere with a pending state criminal prosecution.  Younger                                                                  _______                                         -2-            Ohio Bureau of Employment  Services v. Hodory, 431  U.S. 471,            ___________________________________    ______            480 (1977), we need not address the issue.                      After holding  a hearing  on the town's  motion for            summary  judgment, the  district court  dismissed appellant's            action  on the  following grounds:   (1)  there was  probable            cause to  arrest appellant at  the time the  arrest occurred;            (2)  qualified  immunity  shielded  the  police  officer  who            arrested  appellant  from  liability  for  damages;  and  (3)            absolute  immunity protected this  officer from liability for            testimony  given at the grand  jury and at  trial.  The court            also stated  that  to the  extent  appellant was  mounting  a            "collateral attack" on his state  prosecution,   1983 did not            provide the basis for such an action.                                         II.                                         ___                      Because the district  court clearly was correct  in            finding  the police officer  absolutely immune  for testimony            given  at trial, see Briscoe  v. LaHue, 460  U.S. 325 (1983),                             ___ _______     _____            and  before the grand jury,  see Frazier v.  Bailey, 957 F.2d                                         ___ _______     ______                                            ____________________            abstention  applies to  the situation  where, as  here, state            appellate  remedies had yet to  be exhausted when  the   1983            action was filed.  See Huffman  v. Pursue, Ltd., 420 U.S. 592                               ___ _______     ____________            (1975);  cf. New Orleans Pub.  Serv., Inc. v.  Council of New                     ___ _____________________________     ______________            Orleans, 491 U.S. 350, 368-69 (1989) (litigant may not pursue            _______            equitable   remedy  in  federal   court  while  "concurrently            challenging the [state]  trial court's judgment  on appeal").            As for   1983  damages actions, it is appropriate to stay the                           _______            federal action  pending the conclusion of  the state criminal            proceedings.    See Deakins  v. Monaghan,  484 U.S.  193, 202                            ___ _______     ________            (1988) (district  court has no discretion  whether to dismiss            rather than  to  stay claims  for  money damages  where  such            remedy not available in state proceeding).                                         -3-            920,  931 n.12 (1st Cir. 1992), we address only the questions            concerning probable cause.                      Although  we affirm  the  judgment of  the district            court  concerning this issue, we do so on a different ground.            See  Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7            ___  ____________    _________________________            (1st  Cir.  1990)  (court  of  appeals  may  affirm  on  "any            independently  sufficient ground").   While  this appeal  was            pending, the Massachusetts Appeals Court affirmed appellant's            conviction,  see Commonwealth v.  Kyricopoulos, 31 Mass. App.                         ___ ____________     ____________            Ct.  1122,  585  N.E.2d  353 (1992),  and  the  Massachusetts            Supreme Judicial Court denied appellant's request for further            appellate  review.    See Commonwealth  v.  Kyricopoulos, 412                                  ___ ____________      ____________            Mass. 1101,  588 N.E.2d 691 (1992).   This has  resulted in a            final state court judgment.                      The  full faith  and  credit statute,  28 U.S.C.               1738,  requires us  to give  "the same  preclusive  effect to            state  court  judgments  --  both  as  to claims  and  issues            previously adjudicated  -- as  would be  given  in the  state            court  system in which the federal court sits."  Willhauck v.                                                             _________            Halpin, 953 F.2d 689, 704 (1st Cir. 1991).  We therefore look            ______            to Massachusetts law to determine whether appellant is barred            by his conviction from  relitigating the question of probable            cause.                      Under  Massachusetts  law,  issue   preclusion  (or            collateral  estoppel)  is  appropriate  where  there  is  "an                                         -4-            identity of issues,  a finding adverse  to the party  against            whom  it is  being asserted,  and a  judgment  by a  court or            tribunal of competent jurisdiction."  Miles v. Aetna Casualty                                                  _____    ______________            & Surety Co., 412 Mass. 424, 427, 589 N.E.2d 314, 317 (1992).            ____________            Massachusetts  no  longer  requires mutuality  of  parties to            invoke  issue preclusion.    Thus, where  the party  in whose            favor collateral estoppel is to be applied was not a litigant            in  the original action,  the central inquiry  is whether the            party  against whom  issue preclusion  will be applied  had a            fair  opportunity  to litigate  the  issue  fully or  whether            reasons  exist to afford the party a chance to relitigate the            issue.  Brunson v. Wall, 405 Mass. 446, 451,  541 N.E.2d 338,                    _______    ____            341 (1989).                      Although the district court record does not contain            the entire transcript of appellant's criminal trial, it seems            likely  that the issue of probable cause was litigated at the            trial.   Various  pages  from the  criminal trial  transcript            attached to  appellant's opposition to the  town's motion for            summary judgment  and to appellant's brief  on appeal reflect            that  appellant  cross-examined  the  Orleans  police officer            concerning the search warrant.  Appellant also raised, at his            state trial,  the questions  whether he "owned"  Atlantic and            whether the  checks representing  sales of vehicles  had been            "cashed"  or "deposited"  -- the  grounds on  which appellant                                         -5-            apparently  bases his claim of lack of probable cause for his            arrest.                      Moreover, at the hearing  on the motion for summary            judgment, appellant stated that he had raised, and the  state            trial court had  considered, the question of  the relation of            corporate  ownership  to  appellant's   status  when  he  was            arrested.  See Addendum B to Appellee's Brief, at B-32 to  B-                       ___            33.  Finally, the  first page of the brief appellant filed in            the  Massachusetts  Appeals  Court, attached  to  appellant's            amended  opposition  to  the  motion  for  summary  judgment,            specifically lists as issues  on appeal whether appellant was            falsely arrested  and whether the search  warrant was illegal            under the Fourth Amendment to the United States Constitution.                      In any event, the above  is more than sufficient to            show  that appellant  had  a "full  and fair  opportunity" to            raise  the probable  cause questions  at his  criminal trial.            The  other  requirements  necessary  for  the  application of            collateral estoppel  are also present  in this case.   First,            the  state  conviction, affirmed  on appeal,  is a  valid and            final  judgment.  Second,  while the town  and the individual            defendant  were not  parties  to the  state prosecution,  the            conduct of the police  officer was an issue.   The affirmance            of  appellant's conviction  indicates that  the Massachusetts            Appeals Court concluded that  the police officer's actions in            arresting appellant and in obtaining a search warrant did not                                         -6-            result in a violation of appellant's Fourth Amendment rights.            Under   Massachusetts   law,   these  circumstances   prevent            appellant from relitigating this  question.  See Brunson, 405                                                         ___ _______            Mass.  at 450-51,  541 N.E.2d at  341 (where  MCAD determined            that individual  employees' actions  were not based  on race,            plaintiff was precluded from relitigating same issue in later            civil suit even  though only the employer, not the individual            employees, was a party in MCAD proceeding).                      We, therefore, affirm the judgment of  the district                                     ______            court.  As a result, appellant's motion for judgment is moot.                                         -7-
