       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2    Stemler, et al. v. City            Nos. 01-5956/6205
    ELECTRONIC CITATION: 2003 FED App. 0420P (6th Cir.)         of Florence, et al.
                File Name: 03a0420p.06

                                                            Florence Police Department,        -
UNITED STATES COURT OF APPEALS                                       Defendants-Appellees/     -
                                                                         Cross-Appellants,     -
              FOR THE SIXTH CIRCUIT                                                            -
                _________________                           RON KENNER , in his official       -
                                                            capacity as Boone County           -
                                                            Sheriff,                           -
          No. 01-5956             X
                                   -                                           Defendant.      -
SUSAN STEMLER,                                                                                 -
              Plaintiff-Appellee, -                                                            -
                                   -   Nos. 01-5956/6205           No. 01-6205
WILLIAM CHIPMAN,                   -                                                           -
                                                            SUSAN STEMLER,                     -
Administrator of the Estate of >
                                   ,                                  Plaintiff-Appellee,      -
Conni Black,                       -
             Plaintiff-Appellant/ -
                                                            RANDY BLACK,                       -
                                                                    Intervenor-Appellee/       -
                Cross-Appellee, -                                                              -
                                   -                                    Cross-Appellant,
RANDY BLACK, Legal                                                                             -
Guardian of Shianne Black,         -                                                           -
          Intervenor-Appellant/ -
                                                                       v.                      -
                                   -                                                           -
                Cross-Appellee, -
                                                            FLORENCE , City of Florence,       -
                                   -                                                           -
                                   -                                             Defendant,
             v.                                                                                -
                                   -                        BOBBY JOE WINCE, in his
                                                                                               -
                                   -                        official capacity as an Officer    -
FLORENCE , City of Florence,
                                   -                        of the Florence Police             -
           Defendant-Appellee, -
BOBBY JOE WINCE, in his
                                                            Department; JOHN DOLAN, in         -
                                   -                        his official capacity as an        -
official capacity as an Officer    -                                                           -
                                   -                        Officer of the Florence Police
of the Florence Police                                                                         -
                                   -                        Department; THOMAS
Department; JOHN DOLAN, in                                                                     -
his official capacity as an        -                        DUSING , in his official           -
                                   -                        capacity as an Officer of the      -
Officer of the Florence Police -
                                                            Florence Police Department,        -
Department; THOMAS                 -                                Defendants-Appellants/     -
DUSING , in his official           -                                                           -
                                   -                                       Cross-Appellees.
capacity as an Officer of the                                                                 N

                            1
Nos. 01-5956/6205               Stemler, et al. v. City   3   4    Stemler, et al. v. City               Nos. 01-5956/6205
                                   of Florence, et al.             of Florence, et al.

                                                              district court’s order granting summary judgment for the
                                                              defendants in this civil action arising out of an encounter
       Appeal from the United States District Court           between Conni Black and Susan Stemler, on the one hand,
    for the Eastern District of Kentucky at Covington.        and police officers from the City of Florence, Kentucky and
   Nos. 94-00062; 95-00014—William O. Bertelsman,             Boone County, Kentucky. Appellees/cross-appellants Bobby
                      District Judge.                         Joe Wince, John Dolan, and Thomas Dusing appeal the denial
                                                              of summary judgment on Susan Stemler’s claim of violation
               Argued: December 5, 2002                       of equal protection. Wince appeals the denial of summary
                                                              judgment on Stemler’s claims of fabrication of evidence and
         Decided and Filed: December 2, 2003                  excessive force.
Before: BOGGS, Chief Judge; and SILER and GIBBONS,               This case arises out of an incident that occurred on
                  Circuit Judges.                             February 19, 1994. We have reviewed this case on a previous
                                                              appeal. The relevant facts are described at length in Stemler
                    _________________                         v. Florence, 126 F.3d 856 (1997). Briefly, Black was killed
                                                              in a car accident shortly after police officers allegedly
                       COUNSEL                                removed her from Stemler’s car and placed her in the truck of
                                                              her boyfriend, Steve Kritis. Both Black and Kritis had been
ARGUED:     Eric C. Deters, ERIC C. DETERS &                  drinking heavily, and after an altercation between them at a
ASSOCIATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey   bar, Black left with Stemler in Stemler’s car. Kritis then
C. Mando, ADAMS, STEPNER, WOLTERMANN &                        began to chase the women on the streets of Florence before
DUSING, Covington, Kentucky, for Defendants.                  both the car and the truck were stopped by the police after a
ON BRIEF: Eric C. Deters, ERIC C. DETERS &                    concerned citizen alerted them to the situation. Stemler was
ASSOCIATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey   arrested for driving under the influence. Witnesses say that
C. Mando, ADAMS, STEPNER, WOLTERMANN &                        all the police officers present repeated Kritis’s assertion that
DUSING, Covington, Kentucky, Hugh O. Skees, ROUSE,            Stemler was a lesbian to each other and to others present. No
SKEES, WILSON & DILLON, Florence, Kentucky, David             police officer ever checked Kritis for intoxication or asked
Whalin, LANDRUM & SHOUSE, Louisville, Kentucky, for           him to leave his truck. Black was either escorted or carried
Defendants.                                                   from Stemler’s car to the passenger seat of Kritis’s truck.
                                                              Kritis then drove away and turned onto the northbound lanes
                    _________________                         of I-75. According to Kritis, Black, who had passed out,
                                                              woke up and began to hit Kritis. He began to hit back and
                        OPINION
                                                              lost control of the truck. The truck swerved and collided with
                    _________________                         the guardrail. Black was partially ejected from the passenger-
  BOGGS, Chief Judge. Appellant/cross-appellee William        side window. Her arm was completely severed from her body
Chipman, administrator of the estate of Conni Black, and      and her head was split into two parts by some part of the
intervenor-appellant/cross-appellee Randy Black appeal the    guardrail.
Nos. 01-5956/6205                           Stemler, et al. v. City         5    6    Stemler, et al. v. City              Nos. 01-5956/6205
                                               of Florence, et al.                    of Florence, et al.

I. The Claims                                                                    motions for summary judgment of Florence and Boone
                                                                                 County. Chipman v. City of Florence, 858 F. Supp. 87 (E.D.
A. Chipman’s claim                                                               Ky. 1994), reconsideration denied on amended complaint,
                                                                                 866 F. Supp. 332 (E.D. Ky. 1994).
  On March 7, 1994, William Chipman, the administrator of
the estate of Conni Black, filed a wrongful death action in the                     On appeal, we upheld the district court’s order granting
Boone County Circuit Court against Florence police officers                      summary judgment to the municipal defendants, Florence and
Dusing, Dolan, and Wince; Boone County police officers Rob                       Boone County. Stemler, 126 F.3d at 866. However, we
Reuthe and Chris Alsip; the City of Florence; and Ron                            reversed the district court’s dismissal of Chipman’s claims
Kenner, the Boone County Sheriff. The Boone County                               against the individual officers. We held that Chipman had
Circuit Court entered summary judgment on behalf of the                          pled facts sufficient to maintain her substantive due process
defendants on Chipman’s wrongful death claim. Chipman v.                         claim against the individual officers. Id. at 870. The only
City of Florence, No. 94-CI-00202 slip op. at 4 (Boone Co.,                      state court decision prior to our decision was the Boone
Ky., Cir. Ct. Apr. 2, 1996). The Kentucky Court of Appeals                       County Circuit Court decision awarding judgment to the
reversed the Circuit Court. Chipman v. City of Florence, No.                     defendant officers, holding that Black was not in custody
1996-CA-001287-MR (Ky. Ct. App. Nov. 25, 1998). The                              when the pickup struck the guardrail and that none of the state
Kentucky Supreme Court then reversed the Court of Appeals                        actors were the direct cause of her death on the highway. We
and reinstated the summary judgment ordered by the Boone                         stated in Stemler that “[w]hile these findings are entitled to
County Circuit Court. City of Florence v. Chipman, 38 S.W.                       preclusive effect, they are irrelevant to the merits of her
3d 387 (Ky. 2001).                                                               substantive due process claim.” Id. at 870 n.12. The case
                                                                                 was remanded to the district court for further proceedings
  Chipman also filed a complaint in federal court against the                    consistent with the opinion.
same defendants on March 31, 1994.1 The complaint alleged
that the defendants were liable under 42 U.S.C. § 1983 for                         Shortly after the opinion issued, Randy Black was granted
Black’s wrongful death because they had displayed deliberate                     permission to intervene on behalf of Conni Black’s minor
indifference by forcing her into Kritis’s car.2                                  child, Shianne Black, to bring a claim of loss of parental
                                                                                 consortium. At about the same time, the federal district court
  Chipman’s federal claims were dismissed by the district                        held the case in abeyance pending a decision by the Kentucky
court in 1994. The district court granted the individual                         Supreme Court on appeal of the Boone County Circuit court’s
officers’ motions to dismiss under Federal Rule of Civil                         order entering summary judgment in favor of defendants and
Procedure 12(b)(6), for failure to state a claim, on the ground                  the Kentucky Court of Appeals reversal of that order, which
of qualified immunity. The district court also granted the                       was issued February 22, 2001. Chipman later reached a
                                                                                 settlement with the Boone County officers. In June 2001, the
                                                                                 district court granted the officers’ motion for summary
    1
     W e treated the complaint against Kenner as a suit directly against
                                                                                 judgment on Chipman’s substantive due process claim, and
Bo one County. Stemler, 126 F.3d at 864 n.8.                                     Shianne Black’s claim for loss of parental consortium. The
                                                                                 district court found that the decision of the Kentucky
    2                                                                            Supreme Court barred their claims under the doctrine of issue
        This claim will be referred to as “the substantive due process claim.”
Nos. 01-5956/6205                 Stemler, et al. v. City    7    8    Stemler, et al. v. City               Nos. 01-5956/6205
                                     of Florence, et al.               of Florence, et al.

preclusion. The issue that the district court found could not     imprisonment. It also found that her abuse of process claim
be relitigated was whether Black was in “custody” when she        was barred based on the probable cause finding, that the
got into Kritis’s car because, according to the district court,   officers had no improper motive in arresting her, and that a
the Kentucky Supreme Court had held that Black was never          state prosecutor independently had made the prosecutorial
in custody.                                                       decisions in her criminal case. As for her claims of negligent
                                                                  or intentional infliction of emotional distress, the court found
B. Stemler’s Claims                                               that under Kentucky law, there is no viable cause of action for
                                                                  these torts when she had raised essentially identical claims
  Susan Stemler filed a federal complaint, pursuant to            under traditional torts as discussed above. Finally, the court
42 U.S.C. § 1983, against officers Wince, Dolan, Dusing, and      determined that there was a genuine issue of material fact
the City of Florence. The complaint alleged claims of             with respect to her assault and battery claim against Wince,
excessive force, wrongful arrest, malicious prosecution, and      but not against Dusing and Dolan. Stemler later voluntarily
violation of equal protection on the bases of sex and sexual      dismissed this claim. The Kentucky Court of Appeals
orientation. The district court granted the officers’ Rule        affirmed the grant of summary judgment. Stemler did not
12(b)(6) motions to dismiss on the ground of qualified            pursue an appeal.
immunity. The district court then consolidated her case with
Chipman’s and awarded summary judgment to Florence. The             Upon appeal of the district court decision to this court, we
federal district court then entered an order granting Stemler’s   affirmed the grant of summary judgment in favor of the City
motion for voluntary dismissal of her excessive force claim       of Florence. Stemler, 126 F.3d at 866. We also affirmed the
against Wince. This voluntary dismissal was entered               dismissal of her false arrest and malicious prosecution claims
pursuant to an agreement between the parties to dismiss the       because the Boone County Circuit Court’s finding that there
claim so that an appeal could proceed in this court. The          had been probable cause to arrest and prosecute Stemler
agreement allowed her to bring her claim again should she be      precluded relitigating that issue in this court. Id. at 871-72.
successful upon appeal.                                           We noted that although Stemler seemed to be asserting a
                                                                  claim that Wince had falsified evidence against her, and that
  As Chipman did, Stemler had also brought similar claims         the state court’s finding of probable cause would not preclude
in Kentucky state court. She raised state-law claims of           her from prosecuting this claim, she had failed to properly
malicious prosecution, false arrest, abuse of process, assault    plead it. Id. at 872. We stated that she would be free to file
and battery, false imprisonment, and negligent or intentional     a new complaint against Wince raising that claim. Ibid.
infliction of emotional distress. Stemler v. Florence, No. 94-    Finally, we reversed the dismissal of Stemler’s equal
CI-00459. The Boone County Circuit Court held that she was        protection claim of selective prosecution against the officers,
precluded from prosecuting all of her claims, except for          holding that the allegations in her complaint were sufficient
assault and battery. See Stemler v. City of Florence, 126 F.3d    to state a claim. Id. at 874.
856, 871 (6th Cir. 1997). There was ample evidence
constituting probable cause for her arrest. This barred her         After our opinion in Stemler was issued, Stemler amended
false arrest and malicious prosecution claim. As the              her complaint to allege that Wince fabricated the blood
defendants were police officers, the court found that there was
no distinction between her claims of false arrest and false
Nos. 01-5956/6205                        Stemler, et al. v. City        9    10    Stemler, et al. v. City                Nos. 01-5956/6205
                                            of Florence, et al.                    of Florence, et al.

sample evidence used in her DUI trials.3 As it did in                        Univ. and Cmty. Coll. Sys. of Tenn., 126 F.3d 849, 851 (6th
Chipman’s case, the district court held Stemler’s case in                    Cir. 1997); Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th
abeyance pending final judgments in the state court                          Cir. 1995), cert. denied, 116 S. Ct. 1848 (1996). When
proceedings. In June 2001, the district court denied the                     deciding whether to afford preclusive effect to a state court
officers’ motion for summary judgment on Stemler’s claims                    judgment, the Full Faith and Credit Act, 28 U.S.C. § 1738,
of denial of equal protection based on selective prosecution,                requires the federal court to give the prior adjudication the
and Wince’s motion for summary judgment on her claims of                     same preclusive effect it would have under the law of the state
falsification of evidence, and excessive force. The district                 whose court issued the judgment. See Migra v. Warren City
court noted that none of these claims actually had been                      Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); Heyliger, 126
litigated in state court. It stated that while it might agree with           F.3d at 851-52.
the defendants that Stemler could and should have brought
these claims in state court, our opinion in Stemler had implied                Under Kentucky law, “[c]laim preclusion bars a party from
that claim preclusion did not apply. The court further stated                re-litigating a previously adjudicated cause of action and
that our holding in Stemler stated that she could proceed with               entirely bars a new lawsuit on the same cause of action.”
these claims, and that the “law of the case” would be violated               Yeoman v. Kentucky Health Policy Bd., 983 S.W.2d 459, 465
if it did not permit her to do so.                                           (Ky. 1998). “Issue preclusion bars the parties from
                                                                             relitigating any issue actually litigated and finally decided in
II. Chipman’s substantive due process claim                                  an earlier action.” Ibid.
  Chipman argues that our resolution of the custody issue in                 A. Issue Preclusion
his favor in Stemler should have had preclusive effect on the
Kentucky state courts. He argues that our opinion’s holdings                    In order for issue preclusion to apply in Kentucky, (1) the
constituted the “law of the case” and the district court erred in            issue in the second case must be the same as the issue in the
applying the doctrine of issue preclusion based on the state                 first case, (2) the issue must have been actually litigated,
court proceedings. The officers argue that the district court                (3) the issue must have been actually decided, and (4) the
was correct in deciding that issue preclusion barred the                     decision on the issue in the prior action must have been
relitigation of the issue of custody. Alternatively, they argue              necessary to the court’s judgment. Ibid. The district court
that Chipman’s substantive due process claim is barred from                  found that all four factors were met when the Kentucky
further litigation under the Rooker-Feldman doctrine, or                     Supreme Court resolved Chipman’s state claims.
under the doctrine of claim preclusion.
                                                                               In order for Chipman to prevail in the Kentucky state
  We review de novo a district court’s decision with regard                  courts, the Kentucky Supreme Court stated that he had to
to issue preclusion or claim preclusion. Heyliger v. State                   show “the existence of a duty and unless a special relationship
                                                                             was present, there is no duty owing from any of the police
                                                                             officers . . . .” Chipman, 38 S.W. 3d at 392. The court went
    3                                                                        on, stating that “[i]n order for the special relationship to exist,
      Stemler was twice tried in Boone County District Court on the DUI      two conditions are required: 1) the victim must have been in
charge. The first trial ended in a hung jury. She was acquitted at the end   state custody or otherwise restrained by the state at the time
of her se cond trial.
Nos. 01-5956/6205                   Stemler, et al. v. City   11    12   Stemler, et al. v. City               Nos. 01-5956/6205
                                       of Florence, et al.               of Florence, et al.

the injury producing act occurred, and 2) the violence or other     court made an explicit statement that there was insufficient
offensive conduct must have been committed by a state               evidence to support a finding that Black was in custody.
actor.” Ibid. The court held that “[t]here is no evidence from
which it can be ascertained that Black was in state custody or         However, the Kentucky Supreme Court’s statement that she
otherwise restrained by the police at the time the pickup truck     was never in custody was not necessary to its judgment. The
struck the guardrail with the fatal result. In addition, there is   Boone County Circuit Court held that there was no genuine
no evidence to support a claim that the conduct which caused        issue of material fact regarding whether Black was in custody
the pickup truck to leave the roadway and strike the guardrail      at the time the pickup struck the guardrail – the point at which
was the result of the actions of the police officers.” Ibid.        the injury-producing act occurred. Specifically, it stated she
                                                                    was not in custody at this point. This was the only holding
   The Kentucky Supreme Court also stated that Black was            necessary for the affirmance of the Boone County Circuit
never in custody. Id. at 393. This is precisely the issue that      Court’s judgment. As we noted in discussing this lower court
is relevant in a § 1983 action. In order to prevail on the          decision in Stemler, the holdings of the state court on this
§ 1983 claim, Chipman needs to show that the defendant              issue are entitled to preclusive effect. Nonetheless, this
officers “violated substantive due process by placing [Black]       precise issue is irrelevant to the substantive due process
at risk of harm from a third party . . . .” Stemler, 126 F.3d at    claim.
867. The court must first determine whether “the plaintiff and
the state actors had a sufficiently direct relationship such that     As the Kentucky Court of Appeals (now the Kentucky
the defendants owed [Black] a duty not to subject her to            Supreme Court) stated in Sedley v. City of West Buechel, 461
danger,” and then “the court must also conclude that the            S.W.2d 556, 558 (Ky. 1971):
officers were sufficiently culpable to be liable under a
substantive due process theory.” Ibid. As to the first part, the      The general rule is that a judgment in a former action
relevant inquiry is whether Black was in custody at the time          operates as an estoppel only as to matters which were
the officers allegedly forced her into Kritis’s truck.                necessarily involved and determined in the former action,
                                                                      and is not conclusive as to matters which were
   First, the Kentucky Supreme Court stated that there was no         immaterial or unessential to the determination of the
evidence in the record to support a finding that Black was            prior action or which were not necessary to uphold the
ever in custody, the same issue that is necessary to Chipman’s        judgment.
federal claim. Second, the custody issue was actually
litigated in the state courts: in the Boone County Circuit          (Emphasis added).
Court, the Kentucky Court of Appeals and the Kentucky
Supreme Court. The Kentucky Supreme Court found that                  As the Kentucky Supreme Court correctly stated, our
there was no evidence to support a finding that Black was           statements in Stemler regarding whether Black was in custody
ever in custody in the context of deciding the appeal of a          were dicta, as the only issue before us at that point was the
summary judgment motion. A summary judgment order is a              sufficiency of the allegations in the complaint. Similarly, the
decision on the merits. Ohio Nat’l Life Ins. Co. v. United          statements of the Kentucky Supreme Court regarding whether
States, 922 F.2d 320, 325 (6th Cir. 1990). Third, the issue         Black was ever in custody are dicta, as they are not necessary
was actually decided by the Kentucky Supreme Court. The
Nos. 01-5956/6205                  Stemler, et al. v. City   13    14   Stemler, et al. v. City              Nos. 01-5956/6205
                                      of Florence, et al.               of Florence, et al.

to the state courts’ disposition of the case. The actual holding   B. Claim Preclusion
of the Kentucky Supreme Court reads:
                                                                     The defendant officers also argue that claim preclusion
  In order for a claim to be actionable in negligence, there       should bar Chipman’s claim against them. Claim preclusion
  must be the existence of a duty and unless a special             bars further litigation under Kentucky law when: (1) there is
  relationship was present, there is no duty owing from any        identity of the parties; (2) there is identity of the causes of
  of the police officers to Black to protect her from crime        action; and (3) the action has been resolved on the merits.
  or accident. In order for the special relationship to exist,     Yeoman, 983 S.W.2d at 465. Yeoman also stated that “[f]or
  two conditions are required: 1) the victim must have been        claim preclusion to apply, the subject matter of the
  in state custody or otherwise restrained by the state at the     subsequent suit must be identical.” Ibid.
  time the injury producing act occurred, and 2) the
  violence or other offensive conduct must have been                  In Barnes v. McDowell, 848 F.2d 725 (6th Cir. 1988), we
  committed by a state actor. Neither of these factors can         stated that “Kentucky courts do not apply the doctrine of
  be found from the undisputed material facts in this case.        claim preclusion in a subsequent suit involving facts already
  There is no evidence from which it can be ascertained            at issue in another action when the causes of action in the two
  that Black was in state custody or otherwise restrained by       proceedings are not the same.” Id. at 730. A district court,
  the police at the time the pickup truck struck the               interpreting Kentucky law, stated:
  guardrail with the fatal result. In addition, there is no
  evidence to support a claim that the conduct which                 [W]here the second action between the same parties is
  caused the pickup truck to leave the roadway and strike            upon a different claim or demand, the judgment in the
  the guardrail was the result of the actions of the police          prior action operates as an estoppel only as to those
  officers.                                                          matters in issue or points controverted, upon the
                                                                     determination of which the finding or verdict was
City of Florence v. Chipman, 38 S.W.3d 387, 392 (Ky. 2001)           rendered. In all cases, therefore, where it is sought to
(emphasis added and citations omitted).                              apply the estoppel of a judgment rendered upon one
                                                                     cause of action to matters arising in a suit upon a
  The Kentucky Supreme Court would have reached the same             different cause of action, the inquiry must always be as
result if it had found that Black was in custody at the time she     to the point or question actually litigated and determined
entered Kritis’s truck, so long as it found she was not in           in the original action, not what might have been thus
custody at the time the truck hit the guardrail.                     litigated and determined. Only upon such matters is the
                                                                     judgment conclusive in another action.
  The district court erred in finding that issue preclusion
barred Chipman’s substantive due process claim.                    Presbyterian Child Welfare Agency of Buckhorn v. Nelson
                                                                   County Bd. of Adjustment, 185 F. Supp. 2d 716, 720 (W.D.
                                                                   Ky. 2001) (quoting Louisville v. Louisville Professional
                                                                   Firefighters Ass’n, 813 S.W.2d 804, 807 (Ky. 1991)).
Nos. 01-5956/6205                   Stemler, et al. v. City    15    16   Stemler, et al. v. City              Nos. 01-5956/6205
                                       of Florence, et al.                of Florence, et al.

  While there is identity of the parties, and the action was           the extent that the state court wrongly decided the issues
resolved on the merits, Chipman’s claim is not barred, as it is        before it. Where federal relief can only be predicated
not the same claim as in state court. His claim in the state           upon a conviction that the state court was wrong, it is
courts was for wrongful death, which is a negligence claim.            difficult to conceive the federal proceeding as, in
This is not the same cause of action as the one he brought in          substance, anything other than a prohibited appeal of the
the federal court, a claim of violation of Black’s substantive         state-court judgment.
due process rights. It is indeed true that this claim could have
been brought in state courts. However, under the Kentucky            Id. at 391 (quoting Catz v. Chalker, 142 F.3d 279, 293 (6th
law of claim preclusion, this does not matter, as there is no        Cir. 1998)). In Peterson Novelties, we held that the Rooker-
identity of the causes of action. Yeoman, 983 S.W.2d at 465.         Feldman doctrine was inapplicable to claims that the state
Chipman’s federal claim is not barred by claim preclusion.           court did not address or rule upon even though the federal
                                                                     claims arose out of the same nucleus of facts. Id. at 391-93.
C. Rooker-Feldman                                                    Therefore, the question is whether this court could hold that
                                                                     the officers violated Black’s constitutional rights without
  The defendant officers also argue that the federal district        implicitly holding that the state court wrongly decided the
court lacked jurisdiction to consider Chipman’s claim under          issues before it. Id. at 393.
the Rooker-Feldman doctrine. They argue that Chipman’s
federal suit is an attempt to appeal a state court decision to the      This court discussed the Rooker-Feldman doctrine and its
federal courts.                                                      frequent conflation with claim and issue preclusion in
                                                                     Hutcherson v. Lauderdale County, 326 F.3d 747 (6th Cir.
   The doctrine gets its name from two Supreme Court cases.          2003). This court stated that Seventh Circuit case law
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149            provided a useful way to determine which doctrine to apply:
(1923), held that the power to hear appeals from state court
judgments is exclusively held by the United States Supreme             In order to determine the applicability of the Rooker-
Court. The Supreme Court held in District of Columbia                  Feldman doctrine, the fundamental and appropriate
Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303             question to ask is whether the injury alleged by the
(1983), that federal district courts do not have jurisdiction to       federal plaintiff resulted from the state court judgment
hear challenges to certain state-court decisions. The Rooker-          itself or is distinct from that judgment. If the injury
Feldman doctrine states that “lower federal courts lack                alleged resulted from the state court judgment itself,
subject matter jurisdiction to engage in appellate review of           Rooker-Feldman directs that the lower federal courts lack
state court proceedings or to adjudicate claims ‘inextricably          jurisdiction. If the injury alleged is distinct from that
intertwined’ with issues decided in state court proceedings.”          judgment, i.e., the party maintains an injury apart from
Peterson Novelties, Inc. v. Berkley, 305 F.3d 386, 390 (6th            the loss in state court and not "inextricably intertwined"
Cir. 2002). In defining “inextricably intertwined,” we have            with the state judgment, . . . res judicata may apply, but
adopted the reasoning that:                                            Rooker-Feldman does not . . . .
  [t]he federal claim is inextricably intertwined with the           Id. at 755 (quoting Garry v. Geils, 82 F.3d 1362, 1365-66 (7th
  state-court judgment if the federal claim succeeds only to         Cir. 1996)).
Nos. 01-5956/6205                 Stemler, et al. v. City   17    18   Stemler, et al. v. City               Nos. 01-5956/6205
                                     of Florence, et al.               of Florence, et al.

   As Chipman is not directly challenging the state court’s       circuit court that Stemler cannot establish that they acted with
judgments in federal court, the doctrines of claim and issue      an improper motive.” Stemler v. City of Florence, No. 1996-
preclusion are more properly applied to this case. However,       CA-001318-MR at 23. The court made this statement in the
in any case, the Rooker-Feldman doctrine does not apply.          context of discussing the propriety of summary judgment
The Kentucky Supreme Court’s discussion of whether Black          regarding Stemler’s abuse of process claim. One of the
was ever in custody was dicta, and therefore any finding by       essential elements of that tort is an ulterior purpose. Bonnie
the federal court that Black was in custody at some point         Braes Farms, Inc. v. Robinson, 598 S.W. 2d 765, 766 (Ky. Ct.
during the encounter would not implicitly hold that the state     App. 1980). It was one of several findings of fact that
court improperly decided the issues before it. The issue of       supported the granting of summary judgment in favor of the
Black’s custody before the truck hit the guardrail was not an     defendants.
issue that was salient before the Kentucky court.
                                                                    Stemler argues that our statement in our opinion in Stemler
  The district court does have jurisdiction to hear Chipman’s     that “the record evidence supports a finding” that the officers
substantive due process claim.                                    chose to arrest her because they believed her to be a lesbian
                                                                  should have had preclusive effect on the Kentucky state
III. Stemler’s Claims                                             courts. However, this statement was dicta. We reversed the
                                                                  district court’s dismissal of her claim on a 12(b)(6) motion.
A. Equal Protection Claim                                         Thus the only question before our court was whether her
                                                                  complaint adequately stated an equal protection claim. A
  The defendants argue that Stemler’s equal protection claim      dismissal pursuant to 12(b)(6) “is proper only if it appears
is barred by claim preclusion, issue preclusion, and the          beyond doubt that the plaintiff can prove no set of facts in
Rooker-Feldman doctrine. The district court, although             support of its claims that would entitle it to relief.”
inclined to rule that her claim was barred by claim preclusion,   Kostrzewa v. City of Troy, 247 F.3d 633, 638 (6th Cir. 2001).
instead decided that this court’s decision in Stemler precluded   That judgment does not preclude a later summary judgment
the application of any of those doctrines. We first note that     motion, arguing that the plaintiff in fact could not show such
the district court was not required to abstain from analyzing     evidence. In state court, the claim was being considered for
Stemler’s claims under the claim preclusion doctrine because      summary judgment purposes. A summary judgment order is
of our previous opinion. Our opinion was issued while             a decision on the merits. Ohio Nat’l Life Ins. Co., 922 F.2d
Stemler’s appeal was pending with the Kentucky Court of           at 325. Thus the issue was actually litigated in the state
Appeals. We stated that at that point, claim preclusion did       courts. And, as the state court made an explicit finding that
not yet apply to her claims before the federal courts. We         the officers had no improper motive, the issue was actually
nowhere said that claim preclusion would never apply.             decided.
  The defendant officers argue that the Kentucky Court of           In order to maintain a claim of selective prosecution (the
Appeals decision conclusively decided the question of             basis of Stemler’s equal protection claim), the plaintiff must
whether they had acted with improper motive in arresting her.     prove that a state actor initiated the prosecution with a
The Court of Appeals stated that “[a]lthough the officers may     discriminatory purpose. This is the same issue as the ulterior
have been crude during Stemler’s arrest, we agree with the        purpose issue in Stemler’s state claim of abuse of process.
Nos. 01-5956/6205                   Stemler, et al. v. City    19    20   Stemler, et al. v. City             Nos. 01-5956/6205
                                       of Florence, et al.                of Florence, et al.

And finally, the issue was necessary to the resolution of the        her state law claims bars her from reviving her assault and
state claim. Thus, the state court’s finding that the officers       battery claims.
did not have an improper motive in arresting Stemler has
preclusive effect on relitigating that issue in the federal            First, a voluntary dismissal of a claim is not a judgment on
courts.                                                              the merits. Ky. R. Civ. P. 41.01. While Stemler’s assault and
                                                                     battery claim was dismissed with prejudice against Dolan and
  Because Stemler’s equal protection claim is barred by issue        Dusing, the state court did not grant summary judgment to
preclusion, the district court should have granted summary           Wince, and issue preclusion does not apply to her claim
judgment to the officers on that claim.                              against Wince. Second, the agreement itself does not bar her
                                                                     from bringing her federal claim. As she was not successful
B. Excessive Force                                                   on appeal in the state courts, the agreement would seem to bar
                                                                     her from bringing her assault and battery claim again in state
  Stemler’s federal claim of excessive force and her state           courts. However, the agreement addressed her federal and
claim of assault and battery against Wince were voluntarily          state claims separately. The agreement did not say that if she
dismissed so that she could appeal unfavorable lower court           was unsuccessful in the state courts that she was barred from
decisions on other claims. Wince first argues that Stemler has       bringing her federal excessive force claim again. The
never taken any action to revive her federal claim. However,         agreement that bars her from bringing her state assault and
Stemler’s Second Amended Complaint was accepted by the               battery claim is not a judgment for the purposes of issue
district court on January 13, 1998. Her Second Amended               preclusion, as Wince seems to argue.
Complaint incorporated by reference her initial complaint and
her First Amended complaint, which included the excessive              Wince next argues that the Rooker-Feldman doctrine barred
force claim. Furthermore, Wince does not explain why he did          the district court from considering Stemler’s claims since any
not make this argument when he moved the district court for          decision favorable to her would have been an impermissible
summary judgment on this claim, and why the district court           review of issues decided adversely to her in the Kentucky
denied his summary judgment motion without ever                      state court. He also argues that the claim preclusion doctrine
addressing this issue.                                               bars her from relitigating this claim in the federal courts as
                                                                     well. We will discuss the application of these doctrines
   Wince next argues that the voluntary dismissal agreement          below in conjunction with Stemler’s other outstanding claim.
bars Stemler from reviving her excessive force claim because
it bars her from reviving her assault and battery claim. The
agreement stated that if her appeal to the state appellate court
on her other state claims was unsuccessful, then her assault
and battery claim could not be revived, and vice versa. It
similarly stated that if her appeal to the federal appellate court
was unsuccessful, then her excessive force claim could not be
revived, and vice versa. He argues that because both claims
rely on the same facts and elements of proof, the dismissal of
Nos. 01-5956/6205                 Stemler, et al. v. City   21    22   Stemler, et al. v. City              Nos. 01-5956/6205
                                     of Florence, et al.               of Florence, et al.

C. The application of claim preclusion and the Rooker-            courts confined themselves to the issues of probable cause
   Feldman doctrines to Stemler’s Fabrication of                  and the motive for Stemler’s arrest. The district court could
   Evidence and Excessive Force Claims                            rule in Stemler’s favor without even implicitly holding that
                                                                  the Kentucky courts wrongly decided the issues before them.
  Wince argues that Stemler’s excessive force and fabrication     The Rooker-Feldman doctrine does not apply to these claims,
of evidence claims should be barred by claim preclusion and       and the district court has jurisdiction to hear them.
the Rooker-Feldman doctrine.
                                                                     Wince also argues that claim preclusion would bar Stemler
   The Rooker-Feldman doctrine, as previously noted, states       from bringing these claims in federal court, because as she
that “lower federal courts lack subject matter jurisdiction to    could have brought them in state court. However, as
engage in appellate review of state court proceedings or to       discussed above, the Kentucky law of claim preclusion only
adjudicate claims ‘inextricably intertwined’ with issues          bars bringing the same cause of action twice. Stemler’s claims
decided in state court proceedings.” Peterson Novelties, 305      for falsification of evidence and excessive force could have
F.3d at 390. The question for this court is whether a federal     been brought in state court and were not. However, under
court can rule in Stemler’s favor on her federal claims without   Kentucky law, as she did not bring identical causes of action
implicitly holding that the state courts wrongly decided the      in state court, she is not barred from bringing them in federal
issues before them. Id. at 393.                                   court. Yeoman, 983 S.W. 2d at 465. The district court did not
                                                                  err when it decided that claim preclusion did not apply to
  The state courts adjudicated several of Stemler’s claims.       these claims.
As noted above, Stemler’s claims of malicious prosecution
and false arrest and imprisonment were dismissed on               IV. Conclusion
summary judgment because the state court held that there was
no genuine issue that probable cause existed for her DUI            In No. 01-5956, we REVERSE the grant of summary
arrest. Her claims of intentional or negligent infliction of      judgment to the defendants on Chipman’s substantive due
emotional distress and outrage were dismissed on summary          process claim. In No. 01-6205, we REVERSE the denial of
judgment because Kentucky law holds that if a claimant raises     summary judgment with regard to Stemler’s equal protection
claims under traditional torts that allow recovery for            claim. We AFFIRM the denial of summary judgment with
emotional distress, the claimant cannot raise claims of           regard to Stemler’s excessive force and falsification of
intentional or negligent infliction of emotional distress or      evidence claim. Both cases are REMANDED to the district
outrage. The Boone County Circuit Court found that there          court for further proceedings consistent with this opinion.
was a genuine issue of material fact as to her assault and
battery claim against Wince.
  Except for the decision refusing to dismiss her assault and
battery claim against Wince, the Kentucky state courts never
considered or ruled on any elements of the claims of
fabrication of evidence or excessive force, nor did they
address any facts or issues regarding these claims. The state
