                                     ___________

                                     No. 95-1173
                                     ___________


David Simmons,                             *
                                           *
              Appellant,                   *
                                           *   Appeal from the United States
      v.                                   *   District Court for the
                                           *   Eastern District of Missouri.
Mike O'Brien, Detective,                   *
Captain; William Turner,                   *
Lieutenant; Don Gault,                     *
Detective; Patrick Conway,                 *
Detective; M. J. Walsh,                    *
Detective; City of Overland,               *
                                           *
              Appellees.                   *

                                     __________

                      Submitted:     September 12, 1995

                            Filed:   March 4, 1996
                                     __________

Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.

                                     ___________


MAGILL, Circuit Judge.


      David    Simmons     appeals   the   district   court's1   dismissal   without
prejudice of his 42 U.S.C. § 1983 claim that defendants, officers of the
St. Louis Metropolitan Police Department, coerced his confession through
the use of racial slurs and excessive physical force.            Because the claims
are   barred by issue preclusion and should have been dismissed with
prejudice, we affirm in part and




      1
      The Honorable Carol E. Jackson, United States District
Judge for the Eastern District of Missouri, adopting the review
and recommendation of the Honorable William S. Bahn, United
States Magistrate Judge for the Eastern District of Missouri.
reverse in part.


                                         I.


     On August 20, 1990, officers of the St. Louis police department
questioned    Simmons   about   the   murder   of   Meredith   Marshall,   Simmons'
girlfriend's mother, and the theft of Marshall's car.          After several hours
of questioning, Simmons made a videotaped confession.               Following the
videotaped confession, questioning continued for two more days, during
which the police took more statements.


     Prior to trial, on August 21, 1991, Simmons moved to suppress the
confession and any other statements made to the police on the grounds that
his Fifth and Fourteenth Amendment rights were violated.           Simmons alleged
that he was not specifically made aware of his Miranda rights; that the
length and nature of the interrogation were inherently coercive given his
education, background, and physical and mental condition; and that he was
subjected to physical and psychological duress during the interrogation and
the taking of his confession.


     The trial court denied the motion to suppress on September 13, 1991.
Following a jury trial on October 24, 1991, Simmons was found guilty of
second degree murder and first degree burglary.         He was sentenced to life
in prison for the murder conviction and fifteen years for the burglary
conviction.    Simmons' petition for postconviction relief was denied.           In
his subsequent direct appeal, Simmons alleged procedural errors as grounds
for reversal, but he did not challenge the sufficiency of the evidence nor
did he challenge the admission of the confession.          The Missouri Court of
Appeals upheld both the conviction and the denial of postconviction relief.
State v. Simmons, 865 S.W.2d 893 (Mo. Ct. App. 1993).


     Simmons then brought this § 1983 action seeking damages,




                                        -2-
alleging that defendants used excessive physical force, psychological
duress, and racial slurs in coercing his confession.2           Specifically,
Simmons contends that he was choked several times, kicked in the stomach,
and punched in the face; that pins were continually stuck in his hands
until he confessed; and that, when he would not confess, one officer
threatened to "take this nigger somewhere in (sic) kill him."        Further,
Simmons maintains that the police repeatedly referred to him as "nigger"
and that they told him they were trying to coerce his confession solely
because he is an African-American.


     The trial court granted summary judgment for the defendants based on
Heck v. Humphrey, 114 S. Ct. 2364 (1994), holding that until a habeas court
ruled on the validity of Simmons' conviction, a ruling on the excessive
force and racial slurs claims would be premature.       This appeal followed.


                                     II.


     As a threshold matter, we must determine whether Simmons' claim for
damages is presently cognizable under § 1983.     In Heck, supra, the Supreme
Court held that where "judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction," id. at 2372, a cause of action has
not accrued unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated by a state court or called into
question by a federal habeas court.        Id.   Where, however, "plaintiff's
action, even if successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the action should be
allowed to proceed."   Id.




     2
      The Fifth Circuit has held that allegations of racial
insults and harassment can present a cognizable claim under
§ 1983. See Johnson v. Morel, 876 F.2d 477, 479 (5th Cir. 1989)
(en banc), overruled on other grounds by Harper v. Harris County,
Tex., 21 F.3d 597 (5th Cir. 1994).

                                     -3-
       The Court offered an example of a § 1983 suit that should be allowed
to proceed:    suits for damages for allegedly unreasonable searches, even
when such searches yielded evidence admitted at trial, resulting in
conviction.    Because of doctrines such as independent source, inevitable
discovery, and, most importantly, harmless error, "such a § 1983 action,
even if successful, would not necessarily imply that the plaintiff's
conviction was unlawful," and thus the action should proceed.   Id. at 2372
n.7.


       We believe that this reasoning should be extended to Fifth Amendment
claims challenging the voluntariness of confessions.        In Arizona v.
Fulminante, 499 U.S. 279 (1991), the Supreme Court held that, in terms of
effect on trial, there was no qualitative distinction between the admission
at trial of illegally seized evidence and the admission of involuntary
confessions.     Id. at 310.    In applying harmless error analysis to a
confession obtained in violation of the Fifth Amendment, the Supreme Court
noted:


       The admission of an involuntary confession is a "trial error,"
       similar in both degree and kind to the erroneous admission of
       other types of evidence.       The evidentiary impact of an
       involuntary confession, and its effect upon the composition of
       the record, is indistinguishable from that . . . of evidence
       seized in violation of the Fourth Amendment . . . .


Id.


       Because harmless error analysis is applicable to the admission at
trial of coerced confessions, judgment in favor of Simmons on this § 1983
action challenging his confession will not necessarily demonstrate the
invalidity of his conviction.    See Heck, 114 S. Ct. at 2372 n.7.      Thus,
Simmons' cause of action has accrued.


                                    III.


       At issue is whether Simmons' § 1983 claims are barred by issue




                                    -4-
preclusion because the excessive force and racial slurs claims were
necessarily litigated and decided against Simmons at the state suppression
hearing.    We hold that they are.


                                              A.


       Under issue preclusion (collateral estoppel), "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."               Allen v. McCurry, 449 U.S.
90, 94 (1980) (citing Montana v. United States, 440 U.S. 147, 153 (1979));
see also Restatement (Second) of Judgments § 27 (1982).


       This preclusion principle is rooted in concerns of judicial economy.
By precluding parties from contesting matters that they have had a full and
fair opportunity to litigate, issue preclusion acts to "relieve parties of
the cost and vexation of multiple lawsuits, conserve judicial resources,
and,   by   preventing     inconsistent        decisions,    encourage    reliance    on
adjudication."     McCurry, 449 U.S. at 94 (citing Montana, 440 U.S. at 153-
54); see also University of Tenn. v. Elliott, 478 U.S. 788, 798 (1986)
(noting that preclusion principles "enforce repose").


       Of   course,   "central    to    the    fair   administration     of   preclusion
doctrine" is the notion that a party will be bound only if it had "an
adequate opportunity or incentive to obtain a full and fair adjudication
in the first proceeding."      Restatement (Second) of Judgments § 28 cmt. j.
Only when a party has previously had such a full and fair opportunity to
litigate    that   issue   does   the    benefits     of    preclusion   outweigh    the
countervailing due process concerns present whenever a party is estopped
from raising a claim.      See Blonder-Tongue Lab., Inc. v. University of Ill.
Found., 402 U.S. 313, 328-30 (1971).




                                          -5-
     This deference to prior adjudication extends not only to antecedent
decisions of federal courts, but to those of the state courts as well.
Under the federal full faith and credit statute,


     judicial proceedings [of any court of any State] shall have the
     same full faith and credit in every court within the United
     States and its Territories and Possessions as they have by law
     or usage in the courts of such State . . . .


28 U.S.C. § 1738 (1988).    Thus, federal courts must give preclusive effect
to state court judgments, and the scope of the preclusive effect is
governed by the law of the state from which the prior judgment emerged.
See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).
This deference "promote[s] the comity between state and federal courts that
has been recognized as a bulwark of the federal system."   McCurry, 449 U.S.
at 95-96 (citing Younger v. Harris, 401 U.S. 37, 43-45 (1971)).


     Prior state court adjudications are given preclusive effect even in
later federal § 1983 actions.      In McCurry, the Supreme Court noted that,
while § 1983 "alter[s] the balance of judicial power between the state and
federal courts," McCurry, 449 U.S. at 99, nothing in § 1983 or its
legislative history suggests that Congress intended to repeal or restrict
the traditional doctrines of preclusion.        Id. at 98-101.    The Court
reasoned that the Civil Rights Acts were passed to allow "federal courts
to step in where the state courts were unable or unwilling to protect
federal rights," id. at 101; to the extent that issue preclusion only
applies where a party had a full and fair opportunity to litigate the issue
in the first proceeding, the preclusive effect of state judgments is not
incompatible with § 1983.    Id.


      When a federal constitutional issue is previously decided in a state
criminal proceeding following a full and fair hearing, issue preclusion
will therefore bar relitigation of that issue in




                                      -6-
a § 1983 action.   McCurry, 449 U.S. at 103-04; Munz v. Parr, 972 F.2d 971,
973 (8th Cir. 1992).3


                                     B.


     We look to the Missouri law of issue preclusion in determining the
preclusive effect given to the state trial court's decision to admit the
confession into evidence.   See Baker v. McCoy, 739 F.2d 381, 384 (8th Cir.
1984).   In Missouri, issue preclusion will apply when: (1) the issue in the
present action is identical to the issue decided in the prior adjudication;
(2) the prior adjudication resulted in judgment on the merits; (3) the
party against whom issue preclusion is asserted was a party or is in
privity with a party to the prior adjudication; and (4) the party against
whom collateral estoppel is asserted had a full and fair opportunity to
litigate the issue in the prior suit.     State ex rel. Haley v. Groose, 873
S.W.2d 221, 223 (Mo. banc 1994).


     The last three elements are clearly met in this case.          Simmons'
conviction and the denial of the motion to suppress were on the merits, and
Simmons was a party to the prior proceeding.     Further, the state, through
the suppression hearing, afforded Simmons a full and fair opportunity to
litigate the claims now raised in his § 1983 action, and he had full
incentive to litigate the issues.


     As to the first element, even though the state trial judge made no
explicit findings of fact and law when he overruled the motion to suppress,
we are satisfied that, on the record before us, the issues of excessive use
of force and racial slurs and the




     3
      While McCurry dealt with a Fourth Amendment violation, its
reasoning has been extended to Fifth Amendment claims. Baker v.
McCoy, 739 F.2d 381, 384 (8th Cir. 1984); Gray v. Farley, 13 F.3d
142, 146 (4th Cir. 1994).


                                    -7-
voluntariness of Simmons' confession were raised in the state court and
necessarily decided against Simmons in that forum.


      In his state motion to suppress, Simmons alleged that his confession
was   involuntary   because   he   was    "subjected   to   mental,   physical,   and
psychological duress during said interrogation."             The state trial judge
rejected this contention.      Because coerced, involuntary confessions are
inadmissible at trial, see Colorado v. Connelly, 479 U.S. 157, 163 (1986),
we may properly infer that, by admitting the confession into evidence, the
state trial judge considered the confession voluntary and not coerced.


      It is this same issue, the voluntariness of his confession, that
Simmons raises in his § 1983 action.        Although Simmons protests that he is
asserting an excessive use of force claim and an equal protection claim
apart from challenging the confession, this contention is belied by the
language of his complaint.         In four separate counts in his complaint,
Simmons alleges that police used excessive physical force and violated his
equal protection rights.      In each count, Simmons goes on to allege that
police officers intentionally used such physical and mental abuse to coerce
his confession and that the abuse resulted in such a coerced confession.
For example, in Count I, Simmons alleges that excessive force was used
against him and that such force was "intentionally used to coerce Plaintiff
into confessing," and that, as a result of such physical abuse, plaintiff
was in fact "coerced into confessing to a murder which he did not commit."
See Second Am. Compl., Count I.          This language is repeated in Counts II,
III, and V.


       Based on the language of the complaint, it is clear that Simmons is
ultimately challenging the voluntariness of the confession and seeking
damages for a coerced confession.           Any differences between the § 1983
excessive use of force claim and equal protection claim and the coercion
claim asserted at the




                                          -8-
suppression hearing "appear to us no more than cosmetic changes" made by
Simmons in order to "perpetuate litigation on the same basic issues."
McLaughlin v. Bradlee, 803 F.2d 1197, 1202 (D.C. Cir. 1986).     Thus, the
first element of issue preclusion, that the issue be raised and necessarily
determined in the first proceeding, is met.4


     Because Simmons raised the issue of coercion at the state suppression
hearing, the issue was determined on the merits at the first proceeding,
and Simmons was afforded a full and fair opportunity to litigate the claim,
he is estopped from relitigating this issue in federal court.   See Robbins
v. Clarke, 946 F.2d 1331, 1334 (8th Cir. 1991) (issue preclusion is
appropriate where party merely gives "slightly different verbal twist to
[his] claim" and the claim is "simply the same claim repackaged").


                                   IV.


     The district court determined that, under Heck v. Humphrey, supra,
Simmons' § 1983 claim had not yet accrued, and thus the




     4
      We recognize that Simmons was much more explicit about the
scope of his claims in his § 1983 complaint than in his motion to
suppress. In support of his motion to suppress, Simmons merely
stated that he was "subjected to mental, physical, and
psychological duress during said interrogation." In support of
his § 1983 complaint, Simmons depicts a night of torture during
which officers punched and kicked him, stuck pins in him,
threatened to shoot him, used racial slurs against him, and
singled him out for abuse solely because of his race, all in an
attempt to coerce Simmons to confess.

     However, it is not required for issue preclusion that the
issues be raised, or even argued, with the same level of clarity
or intensity in each proceeding. For issue preclusion to apply,
the issue raised in the second proceeding need only have been
raised in the first proceeding by the party sought to be
precluded and necessarily determined on the merits in a
proceeding affording a full and fair opportunity to litigate the
issue. There is no further requirement that the party actually
take advantage of that opportunity to fully and fairly litigate
the issue.

                                   -9-
court dismissed Simmons' claim without prejudice.     We disagree with this
conclusion and conclude that Simmons can presently raise his claims under
§ 1983.   However, Simmons' claims were already litigated and decided at the
state suppression hearing, and he is thus precluded from relitigating them
in this forum.   Accordingly, we dismiss the complaint with prejudice.


     A true copy.


            Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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