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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Health & Social Services, Office of Children's Services v. Sullivan (09/14/2007) sp-6163
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| DEPARTMENT OF HEALTH & | ) Supreme Court Nos. S- 12157/12277 |
| SOCIAL SERVICES, OFFICE OF | ) |
| CHILDRENS SERVICES, LYNN | ) Superior Court No. |
| ELDRIDGE, and PATRICK | ) 4FA-04-02521 Civil |
| OCTUCK, | ) |
| ) O P I N I O N | |
| Petitioners, | ) |
| ) No. 6163 - September 14, 2007 | |
| v. | ) |
| ) | |
| KELLY SULLIVAN DOHERTY | ) |
| and SHANNON SULLIVAN, | ) |
| ) | |
| Respondents. | ) |
| ) | |
Petitions for Review from the Superior Court
of the State of Alaska, Fourth Judicial
District, Fairbanks, Mark I. Wood, Judge.
Appearances: Megan R. Webb, Assistant
Attorney General, Anchorage, and David W.
M rquez and Talis J. Colberg, Attorneys
General, Juneau, for Petitioners. Michael C.
Kramer, Borgeson & Burns, PC, Fairbanks, for
Respondents.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Lynn Eldridge, a social worker being sued in her
individual capacity, petitions us to reverse the superior courts
orders (1) determining that she was not entitled to qualified
immunity from a number of claims brought pursuant to 42 U.S.C.
1983, and (2) precluding her from relitigating the factual issues
decided in a prior child in need of aid case. Because it appears
that the superior court failed to apply the proper federal test
for qualified immunity, we vacate the superior courts order
denying Eldridge qualified immunity and remand for further
proceedings on this issue. Because Eldridge was neither a party
to nor in privity with a party to the prior child in need of aid
case, we reverse the superior courts order precluding her from
relitigating issues of fact determined in that case.
II. FACTS AND PROCEEDINGS
A. Facts
Lynn Eldridge is a social worker employed by the State
of Alaska, Department of Health and Social Services, Office of
Childrens Services (OCS).1 Kelly Sullivan Doherty is a former
resident of Fairbanks. Kellys minor daughter, Shannon Sullivan,
was born on October 10, 2000, and is also a former resident of
Fairbanks. The current lawsuit by Kelly and Shannon (the
Sullivans) against Eldridge arises from Eldridges participation
in a child in need of aid (CINA) case in which the State
unsuccessfully sought to terminate Kellys parental rights over
Shannon.
On August 18, 2001, the Sullivans were treated at
Fairbanks Memorial Hospitals emergency room for injuries they had
sustained as the result of domestic violence. At the time, Kelly
refused to identify the abuser2 or to avail herself of any of the
social services that could have potentially protected her and her
daughter from further abuse. As a result, OCS removed Shannon
from Kellys care and placed her in a foster home. Eldridge was
assigned as the social worker to the case.
On December 16, 2001, Shannon was adjudicated a child
in need of aid. On January 28, 2003, OCS filed a petition in
superior court to terminate Kellys parental rights with regard to
Shannon. The superior court then held a twelve-day termination
trial.
After the close of the trial, the superior court issued
an order denying OCSs petition to terminate Kellys rights and
criticizing the manner in which OCS and its social workers had
pursued the case. In the superior courts words, the case was
remarkable and had been investigated and prosecuted unlike any
other termination case the Court ha[d] ever heard.
In its findings of fact and conclusions of law, the
superior court detailed the novelty of the case. According to
the superior court, OCS had failed to fulfill its
responsibilities at nearly every stage of the CINA process.
Before trial, the social workers, the Office of Childrens
Services, licensing authorities, and the foster mother ha[d] done
more to undermine the parents progress and reunification efforts
than in any other case the superior court had ever heard.3 At
trial, some parts of OCSs case were based largely on innuendo and
reminded the superior court of the Army-McCarthy hearings.
With regard to Eldridge, the superior court found that
she had improperly instructed other social workers not to call or
remind Kelly of her appointments and had improperly terminated
Kellys visits with her daughter. According to the superior
court, Eldridge did not want Kelly to succeed in her efforts to
regain custody of Shannon and was likely biased against Kelly
because of Kellys second job as an adult dancer. The superior
court also found that OCS and its social workers had failed to
protect Shannon by not acting on concerns about the foster mother
or repeated recommendations that Shannon should be removed from
the foster home.
Ultimately, the superior court concluded that Shannon
was no longer a child in need of aid and ordered OCS to
immediately begin plans for reunification so that the child may
be returned to the mother.
B. Proceedings
The Sullivans filed their initial complaint for damages
against Eldridge on October 22, 2004.4 In this complaint, the
Sullivans leveled an array of state and federal claims against
Eldridge, including two claims brought pursuant to 42 U.S.C.
19835 that Eldridge had violated the Sullivans rights to due
process under the United States Constitution. In support of
their claims, the Sullivans attached a number of documents from
the original CINA case, including the superior courts findings of
fact and conclusions of law in which it criticized OCS and its
social workers and declined to terminate Kellys parental rights.
Eldridge filed an answer to the complaint on January
14, 2005. In her answer, Eldridge denied many of the Sullivans
factual claims and asserted several affirmative defenses,
including the defense of immunity.
On January 25, 2005, the Sullivans filed a motion in
limine asking the superior court to preclude Eldridge, under the
doctrine of collateral estoppel, from relitigating the findings
of fact from the original CINA case. Eldridge opposed this
motion on April 22, arguing, among other things, that collateral
estoppel did not apply because she was neither a party to nor in
privity with a party to the CINA proceeding. The Sullivans
replied that Eldridge was in privity with OCS because she had
been a key individual in initiating the CINA proceedings, had
been a key witness at the termination trial, and had been
adequately represented by OCS at the termination trial.
On May 13, 2005, Eldridge filed a motion to dismiss,
arguing, in relevant part, that she was entitled to absolute
quasi-prosecutorial immunity with regard to the Sullivans 1983
claims. The Sullivans opposed the motion and argued that, under
the facts of the case, Eldridge was entitled to neither absolute
nor qualified immunity. Eldridge replied and reasserted that she
was entitled to absolute quasi-prosecutorial immunity.
On October 26, 2005, the superior court issued a
memorandum decision granting the Sullivans motion for collateral
estoppel. With regard to the issue of privity, the court
concluded that there is no question that [OCSs] attorney was in
the position of defending the actions of its social workers. It
also noted that Eldridge was the States primary witness and
testified at length about the actions she had taken throughout
the time Shannon was in state custody.
On October 27, 2005, the superior court issued a
memorandum decision in which it found, in relevant part, that (1)
Eldridge was not shielded by either absolute or qualified
immunity, and (2) the Sullivans had pled facially valid 1983
claim[s]. As such, the superior court denied Eldridges motion to
dismiss the Sullivans 1983 claims.
On November 7, 2005, Eldridge moved for
reconsideration, arguing that the superior court had applied the
wrong standard for determining her immunity to the Sullivans
1983 claims. According to Eldridge, the superior court applied
state immunity law when it should have applied federal immunity
law. The Sullivans objected to the motion for reconsideration,
arguing that the superior courts discussion of Eldridges
qualified immunity occurred in a portion of its order addressing
state law claims only and did not directly discuss the doctrine
[of] qualified immunity as applied to [their 1983] claims. The
superior court effectively denied this motion by declining to
rule on it.6
On the same day that she moved for reconsideration,
Eldridge also filed a motion requesting that the superior court
clarify which of the factual findings from the CINA case would be
given preclusive effect. According to Eldridge, this
clarification was necessary to facilitate an appeal. Over the
objections of the Sullivans, the superior court issued an order
on March 17, 2006, detailing forty-seven factual findings that
could not be relitigated at trial and explaining that the jury
would be instructed to assume that each of these facts were true.
Eldridge subsequently filed two petitions for
interlocutory review, requesting that we reverse the superior
courts orders (1) denying Eldridge qualified immunity with regard
to the Sullivans 1983 claims, and (2) granting the Sullivans
motion for collateral estoppel. We agreed to hear both
petitions.
III. STANDARD OF REVIEW
Whether an individual is entitled to immunity for a
1983 claim is a question of law that we review de novo, using our
independent judgment.7 Whether collateral estoppel applies to a
particular set of facts is also a question of law that we review
using our independent judgment.8
IV. DISCUSSION
A. Qualified Immunity
Both federal and state law maintain that executive
officials who perform discretionary functions may be shielded
from liability for civil damages on the basis of qualified
immunity. However, the relevant legal standards applicable to
and tests for qualified immunity vary with the nature of the
claim asserted against the executive official.
In the case at hand, Eldridge argues that the superior
court applied the incorrect legal standard when it determined
that she was not entitled to qualified immunity from the
Sullivans 1983 claims. According to Eldridge, the superior
court applied the state test for state law tort claims when it
should have applied the federal test for federal statutory and
constitutional claims. As evidence, she points to the superior
courts lengthy discussion and application of Alaskas three-prong
test for immunity from state law tort claims.
The Sullivans do not dispute that the superior court
discussed the test for qualified immunity from state law tort
claims, but insist that this discussion must be read in context.
They note that the superior courts determination that Eldridge
was not entitled to qualified immunity was included in a
comprehensive memorandum decision that covered a wide variety of
claims and defenses, brought under both state and federal law.
Consequently, they argue, the fact [t]hat Judge Wood discussed
the state standard for qualified immunity in one part . . . of
his comprehensive memorandum decision does not mean that he
applied this standard to the 1983 claims discussed separately
[in another part]. According to the Sullivans, the superior
court adequately resolved the federal immunity question in the
section of its memorandum decision dedicated exclusively to their
1983 claims.
Under federal law, qualified immunity shields
government officials performing discretionary functions . . .
from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.9 The
United States Supreme Court has established a two-prong test for
resolving claims of qualified immunity.10 First, taken in the
light most favorable to the party asserting the injury, do the
facts alleged show the officers conduct violated a constitutional
right?11 Second, if so, was that right clearly established?12 In
determining whether a right is clearly established, the relevant
inquiry is whether it would be clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.13 This
inquiry should be objective and based upon the specific factual
circumstances of the case at hand.14 The burden of establishing
that a right is clearly established falls upon the plaintiff.15
Under our case law, courts faced with a defense of
immunity from state law tort claims must determine: (1) does
official immunity apply to the officials conduct; (2) if so, is
the immunity absolute or qualified; and (3) if it is only
qualified, did the official act in a corrupt or malicious manner
or in bad faith.16 This test is distinct from the federal test
and involves a line of inquiry that the United States Supreme
Court has specifically rejected namely, the inquiry into the
subjective intentions of the government official.17
As both the Sullivans and Eldridge agree, the superior
court discussed the test for qualified immunity from state law
tort claims at great length in the section of its memorandum
decision labeled Eldridge is entitled to qualified immunity only.
In this section, the superior court set out the three-part test
for immunity from state law tort claims, applied that test to
Eldridge, and concluded that Eldridge was not shielded by
qualified immunity because the Sullivans had adequately alleged
that Eldridge acted in bad faith. Although the Sullivans insist
that the courts application of state immunity law in this section
of its decision was intended only to address Eldridges claims of
immunity from their state law tort claims, nothing in the text of
the superior courts decision evinces such a limited intention.
This is the only section of the superior courts decision in which
immunity is explicitly discussed, and it concludes with a
statement denying Eldridges motion to dismiss a number of the
Sullivans claims, including their claims under 1983.
The Sullivans nonetheless argue that the superior court
adequately addressed the issue of federal qualified immunity in a
later section of its memorandum decision. But the section of the
superior courts decision that the Sullivans point to is
explicitly dedicated to determining whether the Sullivans had
pled a facially valid claim under 1983. Although the test for a
facially valid 1983 claim and the test for federal qualified
immunity both require the court to ask whether the plaintiff has
shown a violation of a right, the two tests have little else in
common.18 Unlike the test for qualified immunity, the test for a
facially valid 1983 claim does not require the court to consider
whether the constitutional right in question was clearly
established or whether a reasonable officer would have known that
his or her conduct violated that right.19 And, indeed, this later
section of the superior courts decision a section explicitly
dedicated to determining whether the Sullivans had pled a
facially valid 1983 claim does not make either of these
determinations.
In the end, there is nothing in the superior courts
decision to indicate that the superior court applied the proper
federal test. Because the defenses to a federal cause of action
are defined by federal law,20 the superior courts determination
that Eldridge is not entitled to qualified immunity from the
Sullivans 1983 claims cannot be sustained.
Eldridge maintains that we should not apply the federal
test for qualified immunity on appeal and should instead remand
the issue back to the superior court for further litigation.
According to Eldridge, such a remand is necessary because claims
of federal qualified immunity must be analyzed within the context
of the specific facts of the case, and she has not yet had a
chance to develop those facts. In her words, she has had no
opportunity to actually litigate the defense (i.e., provide
affidavits, deposition testimony, or other relevant documentary
evidence). Eldridge explains that she has not yet had this
opportunity because of the specific manner in which the superior
court addressed the issue. As Eldridge points out, her motion to
dismiss was based not on the defense of qualified immunity, but
on the defense of absolute immunity. As such, the superior
courts decision that Eldridge was not shielded by either absolute
or qualified immunity from the Sullivans 1983 claims actually
went beyond the scope of Eldridges motion.21 And, according to
Eldridge, [s]ince she had not sought summary judgment on
qualified immunity, she did not submit relevant documentary
evidence in support of this defense.22
Eldridge is correct to note that the specific facts of
the case are relevant to the resolution of her qualified immunity
defense. As the Ninth Circuit has explained, the inquiry into
whether a reasonable officer would know that his conduct was
unlawful is a wholly objective inquiry that should be undertaken
in light of the specific factual circumstances of the case.23 In
fact, the United States Supreme Court has specifically stated
that, at least with regard to law enforcement officers and
warrantless searches, the reasonableness of the officials actions
should be assessed in light of the information that the official
possessed at the time he or she took those actions.24 And, as
Eldridge points out, she may be able to submit documentary
evidence that would be relevant to the objective reasonableness
of her actions. For instance, she notes that there may be OCS
policies in place that could explain her decision to terminate
the Sullivans visitation sessions.
Because Eldridge has not yet had the opportunity to
submit relevant documentary evidence, we decline to apply the
federal test for qualified immunity and instead vacate the
superior courts order and remand the issue for further
proceedings.
B. Collateral Estoppel
As we have explained in the past, collateral estoppel,
or issue preclusion, prohibits a party from relitigating an issue
of fact only if four factors are met:
(1) the party against whom the preclusion is
employed was a party to or in privity with a
party to the first action; (2) the issue
precluded from relitigation is identical to
the issue decided in the first action; (3)
the issue was resolved in the first action by
a final judgment on the merits; and (4) the
determination of the issue was essential to
the final judgment.[25]
Eldridge maintains that the superior court erred when
it granted the Sullivans motion to preclude her from relitigating
forty-seven factual findings from the original CINA case.
According to Eldridge, she should not be collaterally estopped
because she was not a party to or in privity with a party to the
CINA case. Moreover, she contends that applying collateral
estoppel against social workers sued in their personal capacity
would inject improper focus into CINA proceedings.
The Sullivans disagree and assert that the superior
court correctly found that Eldridge was in privity with OCS.
According to the Sullivans, [t]here is no question that it was in
[OCSs] interest in the CINA case to fully defend Eldridges
actions because Eldridges dealings with Kelly were the central
issue. The Sullivans also assert that [t]here is no question
that Eldridge had notice of the proceedings and an opportunity to
be heard on the collaterally estopped issues. They note that
Eldridge attended every day of the trial and testified for four
days; that many of the factual findings from the CINA case were
based upon either Eldridges testimony or documents that Eldridge
had prepared; and that Eldridge controlled [OCSs] presentation of
evidence in the CINA case.
The majority of courts maintain that government
employees, in their individual capacities, are generally not in
privity with the government and are not bound by adverse
determinations against the government.26 This is because the
interests, incentives, and immediate goals of a government
employee in his or her individual capacity will most often be
dissimilar from those of the government or even from those of
that same employee in his or her official capacity.27 As a
result, cases brought by or against the government or its
employees in their official capacities will not usually provide a
proper forum or even the slightest opportunity for a government
employee to protect his or her own personal interests. And as a
matter of sound policy, this is how it should be. For when the
government enters the courthouse in order to prosecute criminal
conduct or protect a child in need of aid, it should not be
distracted from its purpose by the personal interests of its
employees.28
While the Sullivans seem to recognize that government
employees acting in their personal capacities are generally not
in privity with the state, they insist that this general rule is
not an automatic bar to privity with a government entity and that
courts must come[] to a conclusion based on the facts of the
particular case. As evidence, the Sullivans point to a handful
of cases in which courts have concluded that public officials
acting in their personal capacities were, in fact, in privity
with the state. However, as Eldridge notes, these cases largely
involved instances of government employees using collateral
estoppel in a defensive manner to prevent plaintiffs from
relitigating issues that had already been unsuccessfully
litigated against the same government employees in different
capacities, other government employees, or the government
entities themselves.29 As such, these cases did not raise the
same sort of fairness and policy concerns that are present in
cases such as the one at hand they neither bound a litigant to
the adverse determinations of a case to which he or she was not a
party nor burdened the government with concerns about its
employees personal interests.
Ultimately, we find no reason in this case to deviate
from the general rule that employees acting in their personal
capacities are not in privity with the government and are not
bound by adverse determinations against the government. Indeed,
the facts of this case are such that even under our standard case
law, Eldridge cannot be understood to have been in privity with
the state. As we explained in Powers v. United Service
Automobile Assn, a non-party will be found to have been in
privity with a party to a prior legal proceeding only if that non-
party (1) substantially participated in the control of a partys
presentation in the adjudication or had an opportunity to do so;
(2) agreed to be bound by the adjudication between the parties;
or (3) was represented by a party in a capacity such as trustee,
agent, or executor.30 Here, Eldridge did not agree to be bound by
the adjudication and was not represented by a party in a capacity
such as trustee. And, contrary to the Sullivans contentions, the
fact that Eldridge drafted and signed the initial petition to
terminate Kellys parental rights, prepared records, and testified
at the termination trial, does not mean that Eldridge had control
over the litigation or the ability to pursue her personal
interests. Eldridge was therefore not afforded a full and fair
opportunity to litigate the issues of fact and cannot be
precluded from relitigating these issues.31
V. CONCLUSION
For the reasons detailed above, we VACATE the superior
courts order denying Eldridge qualified immunity from the
Sullivans 1983 claims and REMAND for further proceedings in
accordance with this decision. We also REVERSE the superior
courts order precluding Eldridge from relitigating factual issues
determined in the previous CINA proceeding and REMAND for further
proceedings in accordance with this decision.
_______________________________
1 OCS was previously known as the Division of Family and
Youth Services.
2 Kelly later identified the abuser as a state trooper
trainee and explained that she had initially refused to identify
him out of fear.
3 Similarly, the superior court found that OCS had
totally failed in fulfilling its concurrent planning obligation.
4 Kellys original suit also named OCS and Patrick Octuck
as defendants. However, neither OCS nor Octuck is a party to this
appeal. At the time petitions for interlocutory review were
filed in this case, the Sullivans only claim against OCS had been
dismissed. After petitions for review were filed, the Sullivans
only claim against Octuck was settled. Therefore, this appeal
concerns only Eldridge.
5 42 U.S.C. 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress . . . .
6 Alaska Rule of Civil Procedure 77(k)(4) provides, in
relevant part:
If the motion for reconsideration has not
been ruled upon by the court within 30 days
from the date of the filing of the motion, or
within 30 days of the date of filing of a
response request by the court, whichever is
later, the motion shall be taken as denied.
7 Mabe v. San Bernadino County, Dept of Pub. Soc. Servs.,
237 F.3d 1101, 1106 (9th Cir. 2001).
8 Chilton-Wren v. Olds, 1 P.3d 693, 696 (Alaska 2000).
9 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
10 We note that we have chosen generally to follow federal
precedent for determining whether qualified immunity should be
conferred for executive acts alleged to contravene a [state]
statutory or constitutional mandate. Breck v. Ulmer, 745 P.2d
66, 71-72 (Alaska 1987).
11 San Jose Charter of Hells Angels Motorcycle Club v.
City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005) (quoting
Saucier v. Katz, 533 U.S. 194, 201 (2001)); see also City of
Fairbanks v. Rice, 20 P.3d 1097, 1109 (Alaska 2000) (explaining
federal qualified immunity).
12 San Jose Charter of Hells Angels Motorcycle Club, 402
F.3d at 971 (quoting Saucier, 533 U.S. at 201).
13 Id.
14 Id.
15 Devereaux v. Perez, 218 F.3d 1045, 1051 (9th Cir.
2000), affd en banc sub nom. Devereaux v. Abbey, 263 F.3d 1070
(9th Cir. 2001).
16 Alpine Indus., Inc. v. Feyk, 22 P.3d 445, 447-48
(Alaska 2001).
17 Harlow, 457 U.S. at 817-18 (concluding that allegations
of malice should not suffice to subject government officials
either to the costs of trial or to the burdens of broad-reaching
discovery and articulating an objective test for qualified
immunity).
18 See Crawford v. Kemp, 139 P.3d 1249, 1255 n.10 (Alaska
2006) (explaining that a 1983 claim can only be sustained if the
plaintiff shows: (1) that the conduct complained of was
committed by a person acting under color of state law, and (2)
that the conduct deprived the plaintiff of a constitutional
right) (citing Balistreri v. Pacifica Police Dept, 901 F.2d 696,
699 (9th Cir. 1990)).
19 Id.
20 Van Sandt v. Brown, 944 P.2d 449, 452 n.5 (Alaska 1997)
(citing Howlett v. Rose, 496 U.S. 356, 375-76 (1990)); see also
Martinez v. California, 444 U.S. 277, 284 (1980) (It is clear
that the California immunity statute does not control this [
1983] claim even though the federal cause of action is being
asserted in the state courts.).
21 Although Eldridge had touched upon the issue of
qualified immunity in her opposition to the Sullivans motion for
partial summary judgment, the superior court decided the issue of
qualified immunity in its ruling on Eldridges motion to dismiss,
which was based only on absolute immunity.
22 Moreover, Eldridge could not have submitted any
evidence in support of the defense of qualified immunity without
the superior court converting her motion to dismiss into a motion
for summary judgment. See Alaska R. Civ. P. 12(c) (stating that
[i]f . . . matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment).
23 San Jose Charter of Hells Angels Motorcycle Club v.
City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005).
24 Anderson v. Creighton, 483 U.S. 635, 641 (1987) (noting
that a determination of whether it was objectively legally
reasonable to conclude that a given search was supported by
probable cause or exigent circumstances will often require
examination of the information possessed by the searching
officials).
25 Powers v. United Serv. Auto. Assn, 6 P.3d 294, 297
(Alaska 2000).
26 See Bilida v. McCleod, 211 F.3d 166, 170-71 (1st Cir.
2000) (noting that most precedent indicates that individual state
officials are not bound, in their individual capacities, by
determinations adverse to the state in prior criminal cases); see
also Turpin v. County of Rock, 262 F.3d 779, 782-83 (8th Cir.
2001) (stating that [c]ollateral estoppel cannot be used against
the officers . . . as the officers were neither parties nor in
privity with the State in the criminal action and did not have a
full and fair opportunity to litigate the issues in the criminal
action); Smith v. Holtz, 210 F.3d 186, 199 n.18 (3d Cir. 2000)
(concluding that the defendants in their individual capacities .
. . are not in privity with the government); Morgan v. Gertz, 166
F.3d 1307, 1309 (10th Cir. 1999) (holding that a social worker
and police detective were not in privity with the State and were
therefore not precluded from relitigating findings that the
plaintiffs constitutional rights had been violated); Gray v.
Lacke, 885 F.2d 399, 405 (7th Cir. 1989) (concluding that to the
extent county officials were sued in their individual capacities,
they were not in privity with the county); Harris v. Jones, 471
N.W.2d 818, 820 (Iowa 1991) (noting that the court was aware of
no case in which a person, sued individually, has been estopped
to litigate an issue because of a ruling adverse to the State in
a prior criminal prosecution); Brown v. Osier, 628 A.2d 125, 128
(Me. 1993) (noting that an official sued in his individual
capacity is generally not considered to be in privity with the
government) (quoting Cohen v. Shea, 788 F. Supp. 66, 68 (D. Mass.
1992)); Lamb v. Geovjian, 683 A.2d 731, 734 (Vt. 1996)
(recognizing that a public official sued in her individual
capacity is generally not considered to be in privity with the
government for the purpose of res judicata); 18A Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure 4458 (2d
ed. 2002) (stating that [t]he relationships between a government
and its officials justify preclusion only as to litigation
undertaken in an official capacity).
27 See Bilida, 211 F.3d at 170-71 (explaining that the
interests and incentives of the individual police or officials
are not identical to those of the state, and the officers
normally have little control over the conduct of a criminal
proceeding); Restatement (Second) of Judgments 36 cmt. a (1982)
(noting that [a] legal capacity other than ones individual
capacity is by definition representative of interest of others).
28 We also note that we have previously adopted portions
of the Restatement (Second) of Judgments approach to privity.
Powers, 6 P.3d at 297-98. The Restatement maintains that a party
appearing in an action in one capacity, individual or
representative, is not thereby bound by or entitled to the
benefits of the rules of res judicata in a subsequent action in
which he appears in another capacity. Restatement (Second) of
Judgments 36(2) (1982).
29 See, e.g., Powell v. Snyder, 84 Fed. Appx. 650, 651-52
(7th Cir. 2003) (unreported) (barring, under the doctrine of res
judicata, a state prisoners suit against prison officials because
he had already unsuccessfully litigated the same claims against
the Department of Corrections). We also briefly note that the
bulk of cases cited by the Sullivans were, like Powell,
unreported and carry no precedential weight.
30 6 P.3d at 298 (citing Restatement (Second) of Judgments
39-41 (1982)).
31 See id. (concluding that collateral estoppel did not
apply, in part, because the litigant had not been afforded
meaningful notice and an opportunity to be heard).
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