                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 25, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
STEPHEN D. COOK,

             Plaintiff-Appellant/
             Cross-Appellee,

v.                                                   Nos. 12-4214 & 13-4003
                                                  (D.C. No. 2:12-CV-00157-DN)
JUSTIN AAGARD, a Sanpete County                             (D. Utah)
Sheriff’s Deputy; CHAD HUFF, a Police
Officer with the City of Fountain Green;
SANPETE COUNTY; SANPETE
VALLEY HOSPITAL,

             Defendants Appellees,

and

STAN ANDERSON, an Ephraim City
Police Officer; EPHRAIM CITY,

             Defendants-Appellees/
             Cross-Appellants.


                            ORDER AND JUDGMENT*




*
      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)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
O’BRIEN, Circuit Judge.


      Stephen D. Cook filed a 42 U.S.C. § 1983 civil rights complaint claiming

defendants violated his constitutional rights when he was detained, searched, and

arrested on drug possession charges. The district court granted summary judgment in

favor of the defendants, ruling Cook’s suit was precluded because he previously

litigated, and lost, the identical claims in state criminal proceedings. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm and dismiss as moot the

cross-appellants’ cross-appeal.

      The district court’s memorandum decision and order accurately and thoroughly

recounts the factual and procedural background of this case; thus, we summarize only

the most salient points. In 2008, Cook was charged in Ephraim City, Utah with

possession of marijuana and drug paraphernalia and interfering with a lawful arrest.

He moved to suppress the results of a urine test and to dismiss the charges, claiming

the arresting officer, Deputy Justin Aagard, lacked probable cause to detain, search,

and arrest him; omitted material facts from his search-warrant affidavit; and

catheterized him to obtain the urine sample when a blood test would have sufficed.

The state court held an evidentiary hearing on these motions and denied Cook’s

motions. It ruled probable cause supported Cook’s detention, search, and arrest, and

the challenged omissions from Deputy Aagard’s affidavit did not alter this

conclusion. Further, it ruled Cook’s constitutional rights were not violated by the


                                          -2-
catheterization because the state presented uncontroverted evidence Cook consented

to it.

         Cook then entered a plea in abeyance. See State v. Wimberly, 305 P.3d 1072,

1074 (Utah. App. 2013) (explaining a plea in abeyance is a court order “accepting a

plea of guilty or of no contest from the defendant but not, at that time, entering

judgment of conviction against him” on condition he comply with specific

conditions) (internal quotation marks omitted)). As part of his plea, Cook admitted

he had illegally possessed marijuana. The state later dismissed the criminal charges

after Cook met agreed-upon conditions. See id. at 1075 (“After successful

completion of [the plea-in-abeyance] conditions, a trial court may dismiss the charge

and no conviction will remain on the defendant’s record.”).

         Three years later, Cook filed this § 1983 action against Deputy Aagard; the

back-up police officers; Ephraim City; and Sanpete Valley Hospital, where the

catheterization took place. Cook asserted the defendants violated his constitutional

rights in connection with his March 2008 arrest. He claimed (1) unlawful search and

seizure without probable cause; (2) illegal detention without probable cause;

(3) excessive force in taking his urine sample; (4) failure to advise him of his

Miranda rights; (5) failure to intervene; (6) failure to train; (7) violation of

procedural due process; and (8) violation of substantive due process. On defendants’

motion for summary judgment, the district court ruled the state court had already

determined probable cause supported Cook’s detention, search and arrest, and Cook’s


                                           -3-
constitutional rights were not violated by the catheterization. Thus, it ruled Cook’s

action was barred by Utah’s doctrine of issue preclusion.

       Cook appeals this ruling. Defendants Stan Anderson and Ephraim City

cross-appeal the district court’s ruling that the action was not additionally barred by

the doctrine of judicial estoppel. We review de novo the district court’s grant of

summary judgment and its interpretation of Utah’s law. Bushco v. Shurtleff,

__ F.3d __, 2013 WL 4779612, at *3 (10th Cir. Sept. 9, 2013).

       A federal civil rights plaintiff may be collaterally estopped from litigating a

§ 1983 claim by a state court criminal judgment, so long as he had a full and fair

opportunity to litigate the issue at the state criminal proceedings. Allen v. McCurry,

449 U.S. 90, 104-05 (1980). The preclusive effect in federal court of a state

judgment is governed by the state’s preclusion rules. Valley View Angus Ranch, Inc.

v. Duke Energy Field Servs., Inc., 497 F.3d 1096, 1100 (10th Cir. 2007). Under Utah

law, issue preclusion, “prevents parties or their privies from relitigating facts and

issues in the second suit that were fully litigated in the first suit,” provided the

following four elements are met:

       (i) the party against whom issue preclusion is asserted must have been a
       party to or in privity with a party to the prior adjudication; (ii) the issue
       decided in the prior adjudication must be identical to the one presented
       in the instant action; (iii) the issue in the first action must have been
       completely, fully, and fairly litigated; and (iv) the first suit must have
       resulted in a final judgment on the merits.

Oman v. Davis Sch. Dist., 194 P.3d 956, 965 (Utah 2008) (internal quotation marks

omitted).

                                           -4-
       Cook contends the second, third and fourth factors are not met here. First, he

claims the issues decided by the Utah court were not essential to the resolution of his

criminal proceedings and, thus, are not identical to his § 1983 action. See Zufelt v.

Haste, Inc., 142 P.3d 594, 597 (Utah App. 2006) (“What is critical in determining

identical issues is whether the issue that was actually litigated in the first suit was

essential to resolution of that suit and is the same factual issue as that raised in a

second suit.” (brackets and internal quotation marks omitted)). The district court

found Cook conceded this factor in his pleadings. From our independent review, it is

evident the issues in the state proceedings are identical to those in the § 1983 action.

In both proceedings, the claims are based on the same facts and the same dispositive

constitutional issues. Essential to Cook’s success in both proceedings was a finding

that there was no probable cause for his detention, search, and arrest, and that the

catheterization violated his constitutional rights. The state court decided those issues

and Cook lost.

       Cook argues the issues are not identical because he included additional facts

about the detention and search in his § 1983 complaint, which he knew of but chose

not to raise in the suppression hearing. He asserts these new facts might alter the

probable cause totality-of-the-circumstances analysis. His argument is unavailing.

Utah broadly defines the issue precluded: “[t]he minimum reach of issue preclusion

beyond precise repetition of the first action is to prevent relitigation by mere

introduction of cumulative evidence bearing on a simple historical fact that has once


                                           -5-
been decided.” Harline v. Barker, 912 P.2d 433, 443 (Utah 1996) (emphasis in

original; quoting 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper,

Federal Practice and Procedure § 4417, at 157 (1981)). Issue preclusion “extends to

every matter which was or might have been urged to sustain or defeat the

determination actually made.” Macris & Assoc., Inc., v. Neways, Inc., 16 P.3d 1214,

1223 (Utah 2000) (“[A] party cannot by negligence or design withhold issues and

litigate them in separate actions.”). Cook chose not to present evidence available to

him at the suppression hearing, but the issues he raised and were determined there are

identical to the issues here.

       Next, Cook contends the suppression hearing was not a complete, full, and fair

litigation of these issues, but was a summary proceeding addressing some immaterial

evidentiary issues which likely would have been re-considered had he gone to trial.

To the contrary, the constitutional issues in Cook’s criminal proceedings were

litigated in an evidentiary hearing at which he was represented by counsel, and had

the right and opportunity to testify, present evidence, call and cross-examine

witnesses, and appeal the court’s ruling. See 3D Constr. & Dev., L.L.C. v. Old

Standard Life Ins. Co., 117 P.3d 1082, 1087 (Utah App. 2005) (holding the

‘completely, fully, fairly’ element is met if the party against whom preclusion is

sought had adequate notice and an opportunity to be heard on the issue.). There is no

reason to doubt the quality, extensiveness, or fairness of the criminal proceeding and

we agree with the district court that Cook “had his day in court.” Buckner v.


                                         -6-
Kennard, 99 P.3d 842, 846 (Utah 2004) (“[O]nce a party has had his or her day in

court and lost, he or she does not get a second chance to prevail on the same

issues.”).

       Third, Cook contends there was no final judgment on the merits because his

criminal case was ultimately dismissed. But under Utah law, “a judgment does not

have to proceed to trial” to be “on the merits” for issue preclusion. State v.

Sommerville, 297 P.3d 665, 674 (Utah App. 2013) (internal quotation marks omitted).

“Rather, [it] may be made at any stage of the litigation, so long as the judgment

rendered is based upon a proper application of the relevant law to the facts of the

case.” Id. at 674-75 (internal quotation marks, brackets, and ellipses omitted).

       ‘On the merits’ is a term of art that means that a judgment is rendered
       only after a court has evaluated the relevant evidence and the parties’
       substantive arguments. . . . A judgment is upon the merits when it
       amounts to a declaration of the law as to the respective rights and duties
       of the parties based on facts and evidence upon which the right of
       recovery depend, irrespective of formal, technical, or dilatory objections
       or contentions.

Id. at 674 (internal quotation marks, brackets and ellipses omitted).

The state court ruling was a final adjudication on the merits for purposes of issue

preclusion because it rendered a substantive ruling on the merits of the constitutional

issues presented, based on the relevant law applied to the facts of the claims.

       Finally, Cook argues policy considerations prevent application of issue

preclusion. Utah courts have recognized that courts have discretion to limit the use

of issue preclusion, see Gudmundson v. Del Ozone, 232 P.3d 1059, 1067


                                          -7-
(Utah 2010), but we are not persuaded the district court abused its discretion in

applying the doctrine here.

      Accordingly, we affirm the district court’s grant of summary judgment.

Because we decide this appeal on the basis of issue preclusion, we dismiss as moot

Stan Anderson’s and Ephraim City’s cross-appeal.


                                               Entered for the Court


                                               Terrence L. O’Brien
                                               Circuit Judge




                                         -8-
