United States District Court, District of New Jersey
April 9, 1991
CARTHEL WHEELER, PLAINTIFF,
AMALIO NIEVES, JR. AND RONALD HUMPHREY, DEFENDANTS.
The opinion of the court was delivered by: Lechner, District Judge.
This is an action brought pro se by Southern State
Correctional Facility inmate Carthel Wheeler ("Wheeler")
against Amalio Nieves, Jr. ("Nieves") and Ronald Humphrey
("Humphrey"), his arresting officers (collectively, the
"Defendants"), arising out of events leading up to his arrest
and occurring at trial. While Wheeler does not state the basis
for jurisdiction, it appears the claims are brought pursuant to
the Civil Rights Act of 1871, 42 U.S.C. § 1983.*fn1
Jurisdiction appears to be appropriate pursuant to 28 U.S.C. § 1331.
Nieves moves to dismiss the complaint on the ground that
28 U.S.C. § 1257(3) deprives this court of jurisdiction over the
action. In addition, Nieves moves to dismiss the complaint
under principles of res judicata and collateral estoppel.*fn2
For the reasons which follow, the motion is granted. In
addition, the complaint against Humphrey is dismissed sua
The complaint of Wheeler appears to be based on alleged
constitutional violations arising out of both the conduct of
Nieves and Humphrey leading up to Wheeler's arrest and the
testimony of Nieves at Wheeler's trial.
Wheeler alleges he was convicted by a jury on 1 October 1986
of one count of conspiracy, two counts of possession of "CDS"
and "[two] counts of CDS," and "was sentenced to 12 years with
a minimum term of 5 years." Complaint at ¶ 26. His complaint
states the convictions are "under appeal awaiting to be heard
in Superior Court of New Jersey, Appellate Division, docket
number A-3361-86-T4." Id. at ¶ 26.*fn4
Wheeler alleges that at his trial on 30 September 1986,
Nieves testified that Wheeler and "John Doe," apparently an
unindicted co-conspirator, conspired on 11 March 1986 to sell
Nieves $20 of white powdered cocaine. Id. at ¶¶ 3-4. Wheeler
contends Nieves testified: he met Wheeler at 9:00 p.m. at the
J.T. Bar on Summer Street in Paterson, New Jersey; he left the
J.T. Bar at 9:15 p.m. and met Wheeler and John Doe at a corner
approximately fifty feet away from the J.T. Bar, id. at ¶¶ 4-6;
John Doe handed him four vials of cocaine as Wheeler said to
John Doe, "Go ahead, give it to him," id. at ¶ 7; he then
handed John Doe a twenty dollar bill, id. at ¶ 6; and after
purchasing the cocaine from John Doe and Wheeler, he contacted
Humphrey, his back-up, by radio and gave him a description of
John Doe and Wheeler. Id. at ¶ 10. Wheeler alleges: "Humphrey
and a companion [then] got out of their vehicle and made
[Wheeler] drop his pants to his knees and searched him on the
`public street' with another individual named Lewis Goodwin."
Id. at ¶ 13. Wheeler alleges
"there were [sic] no arrest nor was [Wheeler] taken to police
headquarters for questioning or photograph." Id. at ¶ 14.
Wheeler further alleges:
Subsequently, Defendant Humphrey went to Paterson
Police Headquarters . . . and pulled a photo of
[Wheeler] out of files from June of 1983,
pertaining to [Wheeler's] prior conviction for
narcotics violation. . . . Humphrey handed this
photo over to Detective Roy Daniels, who witnessed
the photo being put into (1) five photo line-up
for Defendant Nieves to review, and made out this
report on April 9, 1986, almost a month after the
Id. at ¶¶ 16-18. Wheeler then alleges: "This photo line-up was
ruled overly suggestive in Superior Court because of [Wheeler]
being the only black male with two (2) punch holes (taken out
of file), clean shaven, and under 66 inches tall." Id. at ¶ 19.
Wheeler alleges Nieves later recanted his testimony, instead
testifying that he did not meet Wheeler at the J.T. Bar and
that the crime occurred at 10:25 p.m., the hour written on the
physical evidence used at trial, not 9:15 p.m. Id. at ¶ 9.
Wheeler alleges Nieves also testified at trial that he bought
one ten dollar vial from Wheeler on 19 March 1986. Nieves
allegedly testified that after this purchase he radioed a
description of Wheeler to Humphrey and gave him a description
of Wheeler's clothing which was identical to the description he
gave Humphrey following the purchase of 11 March 1986.
Id. at ¶¶ 21-22. Wheeler alleges: "Defendant Humphrey made a
`pass by' the area . . . to verify that [Wheeler] was the
suspect in this alleged crime without going through any
positive identification procedure." Id. at ¶ 23.*fn5
Wheeler filed the instant complaint on 6 September 1988.
Without specifying whether he refers to the conduct of the
Defendants resulting in his arrest or to the testimony of
Nieves at trial, Wheeler asserts the "action of the
[D]efendants [described above] denied [Wheeler] Due Process of
law in violation of the Fourth Fifth, Sixth, and Fourteen
Amendment [sic] . . . . " Id. at ¶ 28. In addition, he contends
he was "deprived of his right to a fair and impartial trial . .
. when Nieves knowingly, willingly, and purposely . . .
falsified police reports, . . . gave perjured testimonies [sic]
under oath, . . . and used false evidence." Id. at ¶ 29.
Wheeler contends Humphrey violated his constitutional rights by
conducting a "pass by" prior to the arrest of 19 March 1986
without first engaging in "positive identification procedures."
Id. at ¶ 30. Wheeler next alleges: "[Wheeler] was semi-strip
searched on the public street without an arrest, afterwards, a
overly suggestive photo from [Wheeler's] prior conviction for
narcotics drug was then put into a line-up and used as evidence
violating search and seizure, double jeopardy standards. . . ."
Id. at ¶ 31. Next, Wheeler alleges the crimes for which he was
convicted were fabricated in violation of his constitutional
rights. Id. at ¶ 32. In addition, Wheeler contends: "[He] had
no co-defendant in the alleged crime of conspiracy on March 11,
1986, moreover; all through trial there was no one but a John
Doe who can be anyone, violating [Wheeler's] right of access to
the courts. . . ." Id. at ¶ 33. Finally, Wheeler contends: "All
narcotics drug allegedly purchased from the accused or whoever,
being marked with the name of John Doe's [sic] . . . was a
violation of [Wheeler's] Fourth Amendment of the . . .
Constitution and Due Process. . . ." Id. at ¶ 34.
On 8 December 1989, approximately fifteen months after
Wheeler filed the complaint, the appellate division of the New
Jersey superior court decided his appeal from the conviction.
Wheeler raised on appeal the following issues:
I. THE APPELLANT'S FIFTH AMENDMENT
CONSTITUTIONAL RIGHT NOT TO TESTIFY WAS
VIOLATED WHEN THE STATE IMPERMISSABLY [SIC]
ELICITED TESTIMONY REGARDING HIS PRIOR
INVOLVEMENT WITH LAW ENFORCEMENT.
II. THE STATE IMPERMISSABLY [SIC] INTRODUCED
OTHER CRIMES EVIDENCE TO ESTABLISH A GENERAL
DISPOSITION FOR WRONGDOING IN VIOLATION OF
[NEW JERSEY] EVIDENCE RULE 55.
III. THE TRIAL COURT ERRED IN PERMITTING AN IN
COURT IDENTIFICATION OF APPELLANT AS THERE
DID NOT EXIST SUFFICIENT INDICIA OF
RELIABILITY OUTWEIGHING THE CORRUPTING
EFFECT OF THE SUGGESTIVE PHOTO ARRAY.
IV. APPELLANT WAS DENIED HIS SIXTH AMENDMENT
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE
OF COUNSEL WHICH AFFECTED THE OUTCOME OF THE
V. THE SENTENCE IMPOSED WAS MANIFESTLY
App. Div. Opinion at 3. In addition, Wheeler raised the
following issues in his supplemental pro se brief:
I. NO RATIONAL TRIER OF FACT COULD HAVE FOUND
THE APPELLANT GUILTY OF CONSPIRACY BEYOND A
REASONABLE DOUBT ON THE EVIDENCE PRESENTED
BY THE STATE.
II. THE APPELLANT'S SENTENCE OF 12 YEARS WITH A
5 YEAR PAROLE DISQUALIFIER IS IN VIOLATION
OF THE EX POST FACTO CLAUSE OF THE UNITED
App. Div. Opinion at 4.
Wheeler asserted before the appellate division that testimony
by Nieves and Humphrey violated his Fifth Amendment right to be
free from self-incrimination because it could be inferred from
such testimony that Wheeler had previously engaged in crime.
App. Div. Opinion at 4. Wheeler also argued that such testimony
constituted the impermissible admission of evidence of other
crimes. App. Div. Opinion at 4-6. Wheeler additionally argued
his in-court identification was tainted by the earlier
identification based on an unduly suggestive photograph array.
App. Div. Opinion at 6-7.
The appellate division determined Wheeler's Fifth Amendment
right against self-incrimination was not violated by the
testimony of Nieves and Humphrey. App. Div. Opinion at 4.
Additionally, it concluded any inference from their testimony
that Wheeler had previously been engaged in crime was not
unduly prejudicial and did not constitute the improper
admission of evidence of prior crimes. App. Div. Opinion at 5-6.
The appellate division also concluded the in-court
identification of Wheeler was not tainted by the earlier
identification based on an unduly suggestive photograph array.
In deciding the propriety of the in-court identification, the
appellate division summarized the trial court proceedings on
the issue of the suggestiveness of the photograph array as
Prior to commencement of Wheeler's trial a
Wade hearing was held in order to determine whether
the photo array used at the police station was
unduly suggestive because the defendant's photo had
two holes punched in the top, whereas the other
four photos used did not. The trial court found
that the photo array utilized by the State was
unnecessarily suggestive, but that there was [sic]
sufficient indicia of reliability to outweigh the
corrupting effect of any suggestive identification.
Therefore, the arresting officer was permitted to
make an in-court identification of [Wheeler].
App. Div. Opinion at 3. The appellate division affirmed the
decision of the trial court permitting the in-court
identification of Wheeler because it agreed that the in-court
identification contained sufficient indicia of reliability to
outweigh the prejudicial effect of the suggestive photograph
The [trial] court correctly ruled that the photo
lineup was unnecessarily suggestive, but that
there were clearly sufficient independent indicia
of reliability to support the in-court
Nieves made an unequivocal identification of
[Wheeler] as the person involved in the two sales
to him. The sales took place face to face giving
Nieves ample opportunity to view defendant, as
well as reinforcing the impression gained from
each encounter. Nieves identified defendant using
the photo array shortly after the first sale, and
then saw defendant again at the second sale.
Furthermore, Nieves' identification is supported
by Humphrey's corroborative testimony. There was
no error in permitting in-court identification of
defendant in this case.
App. Div. Opinion at 6-7. As to the other issues raised by
Wheeler, including the sufficiency of the evidence raised in
Point I of his supplemental pro se brief, the appellate
division stated simply:
We have reviewed carefully all other arguments
raised by [Wheeler] in his brief and supplemental
pro se brief regarding ineffective assistance of
counsel, unduly excessive sentence and that the
conviction for conspiracy to distribute a
controlled dangerous substance was against the
weight of the evidence, and find that defendant's
arguments on these points are clearly without
App. Div. Opinion at 7. The conviction of Wheeler was affirmed
by the appellate division on 8 December 1989. It does not
appear Wheeler sought to further appeal the conviction.
A. Standard of Review
A court may dismiss a complaint for failure to state a claim
where it appears beyond doubt that no relief could be granted
under any set of facts which could be proved consistent with
the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73,
104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957);
Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir.
1990); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). In
deciding such a motion under Fed.R.Civ.P. 12(b)(6), all
allegations in the complaint must be taken as true and viewed
in the light most favorable to the plaintiff. Gomez v. Toledo,
446 U.S. 635, 636, 100 S.Ct. 1920, 1921, 64 L.Ed.2d 572 (1980);
Markowitz, 906 F.2d at 103; Melikian v. Corradetti,
791 F.2d 274, 277 (3d Cir. 1986); Robb v. Philadelphia,
733 F.2d 286, 290 (3d Cir. 1984).
In applying this standard of review to motions to dismiss
complaints brought pro se, such submissions "must be held to
`less stringent standards than formal pleadings drafted by
lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285,
292, 50 L.Ed.2d 251 (1976), reh'g denied, 429 U.S. 1066, 97
S.Ct. 798, 50 L.Ed.2d 785 (1977) (quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)); see
also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30
L.Ed.2d 652, reh'g denied, 405 U.S. 948, 92 S.Ct. 963, 30
L.Ed.2d 819 (1972).
B. Section 1257
As his first ground for dismissal, Nieves contends this court
is deprived of jurisdiction over Wheeler's complaint by
28 U.S.C. § 1257(3), which provides for review of decisions issued
by a state's highest court only by writ of certiorari to the
United States Supreme Court and which precludes an attack on
such decisions through an action in a federal district
court.*fn6 Nieves contends: "[Wheeler] claims that the acts
which lead [sic] to the trial court's determination of his
guilt violated his constitutional rights. That decision as well
as the subsequent Appellate Decision is not reviewable by this
court. . . . A United
States District Court may not entertain an appeal from
judgments of the highest court of a State." Moving Brief at 2
(citing District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 416, 44 S.Ct. 149, 150, 68
L.Ed. 362 (1923)).
Nieves correctly asserts that a party cannot attack the
judgment of a state's highest court by bringing an action in
federal district court. Feldman, 460 U.S. at 476, 103 S.Ct. at
1311 (in action in which plaintiffs sought voiding of judgment
of state's highest court by federal district court, the Supreme
Court held "the United States District Court is without
authority to review final determinations of the [state's
highest court] in judicial proceedings. Review of such
determinations can be obtained only in this [the United States
Supreme] Court."); Rooker, 263 U.S. at 415-16, 44 S.Ct. at 150
(district court had no jurisdiction to void the judgment of the
state's highest court for constitutional errors). However,
Nieves incorrectly relies on this provision in moving for
Wheeler's complaint does not attack the judgment of
conviction of the state trial court or the affirmance by the
appellate division so as to effectively constitute an appeal
from the judgment of conviction. Rather, Wheeler brings an
action against the arresting and testifying officers for
constitutional violations which allegedly occurred during the
events leading up to his arrest and for fabricating the crimes
of which he was accused and for which he was convicted. Section
1257 is inapplicable in connection with this motion.
C. Claim and Issue Preclusion
In addition, without specifying as to whether he refers to
the state trial court's judgment of conviction or the appellate
division affirmance of that conviction, and without explaining
his reasoning for so contending, Nieves conclusorily asserts
the instant action by Wheeler is barred by principles of res
judicata and collateral estoppel. Moving Brief at 3.
The term res judicata has been given a variety of meanings,
some of which incorporate the distinct concept of collateral
estoppel. See Gregory v. Chehi, 843 F.2d 111, 115 (3d Cir.
1988) (citing A. Vestal, Res Judicata/Preclusion, V-13 to 14
(1969)). "To reduce the confusion that resulted from the
interchangeable use of these terms, the courts have refined the
nomenclature used in the preclusion doctrine." Id. (citing Wade
v. City of Pittsburgh, 765 F.2d 405, 408 (3d Cir. 1985)). The
terms "claim preclusion" and "issue preclusion" will be used in
this opinion. See Migra v. Warren City School Dist. Bd. of
Education, 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79
L.Ed.2d 56 (1984); Electro-Miniatures Corp. v. Wendon Co.,
889 F.2d 41, 44 (3d Cir. 1989); Gregory, 843 F.2d at 115-116;
Rider v. Pennsylvania, 850 F.2d 982, 989 (3d Cir.), cert.
denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 582 (1988).
The term claim preclusion replaces res judicata; the term issue
preclusion replaces collateral estoppel. Electro-Miniatures,
889 F.2d at 44; Gregory, 843 F.2d at 116.
Congress has provided that "judicial proceedings shall have
the same full faith and credit in every court within the United
States . . . as they have by law or usage in the courts of
[the] State . . . from which they are taken."
28 U.S.C. § 1738.*fn7 Based upon this statutory direction, federal courts
are to raise the issue of the preclusive effect of prior state
court rulings whenever the courts of the state "from which the
judgments emerged would do so." Kelley v. TYK Refractories Co.,
860 F.2d 1188, 1193 (3d Cir. 1988) (quoting Allen v. McCurry,
449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980)).
See also Rider, 850 F.2d at 988; Van Dissel v. Jersey Cent.
Power & Light, Co., 194 N.J. Super. 108, 121-122, 476 A.2d 310
(App. Div.), cert. denied, 99 N.J. 186,
491 A.2d 690 (1984). Accordingly, the preclusive effect under
28 U.S.C. § 1738 of the trial court judgment of conviction and
the appellate division affirmance will be determined with
reference to New Jersey law. See Migra, 465 U.S. at 75, 104 S.Ct.
at 892; Towers, Perrin, Forster & Crosby, Inc. v. Brown,
732 F.2d 345 (3d Cir. 1984).
Claim and issue preclusion are "related but independent
preclusion concepts." Gregory, 843 F.2d at 115. See also Rider,
850 F.2d at 988. These doctrines generally prohibit
relitigation of claims and issues decided in a prior
proceeding. As summarized by the Supreme Court in Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d
Under the doctrine of [claim preclusion], a
judgment on the merits in a prior suit bars a
second suit involving the same parties or their
privies based on the same cause of action. Under
the doctrine of [issue preclusion], on the other
hand, the second action is upon a different cause
of action and the judgment in the prior suit
precludes relitigation of issues actually litigated
and necessary to the outcome of the first action.
Id. at 326 n. 5, 99 S.Ct. at 649 n. 5 (emphasis added) (citing
1B J. Moore, Moore's Federal Practice ¶ 0.405(1) at 622-624 (2d
ed. 1974)). Both doctrines "`shar[e] the common goals of
judicial economy, predictability and freedom from harassment. .
. .'" Electro-Miniatures Corp., 889 F.2d at 44 (quoting
Gregory, 843 F.2d at 116).
Although issue and claim preclusion are similar, they have
different consequences. "Claim preclusion refers to the effect
of a judgment in foreclosing litigation of a matter that never
has been litigated, because of a determination that it should
have been advanced in an earlier suit." McNasby v. Crown Cork
and Seal Co., 888 F.2d 270, 275 (3d Cir. 1989), cert. denied,
___ U.S. ___, 110 S.Ct. 1783, 108 L.Ed.2d 784 (1990) (citing
Migra, 465 U.S. at 77 n. 1, 104 S.Ct. at 894 n. 1). "`Issue
preclusion refers to the effect of a judgment in foreclosing
relitigation of a matter that has been litigated and decided.'"
Id., n. 7 (citing Migra, 465 U.S. at 77 n. 1, 104 S.Ct. at 894
Claim preclusion rules formulated by courts are "designed to
draw a line between the meritorious claim[s] on the one hand
and the vexatious, repetitious and needless claim[s] on the
other hand." Purter v. Heckler, 771 F.2d 682, 689-90 (3d Cir.
1985). Litigation should not be renewed after a case has been
fully presented before a court and the matter has been decided
against a litigant. Id.
Issue preclusion "embodies the principle that `later courts
should honor the first actual decision of a matter that has
actually been heard and litigated.'" Rider, 850 F.2d at 989
(quoting C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure § 4416 at 136 (1981)). "By precluding a court from
making a second determination as to an issue on which an
earlier court has previously rendered a decision, the doctrine
of issue preclusion assists in the `maintenance of the social
order' and `secure[s] the peace and repose of society by the
settlement of matters capable of judicial determination.'" Id.
(quoting Southern Pacific Railroad v. United States,
168 U.S. 1, 48-49, 18 S.Ct. 18, 27-28, 42 L.Ed. 355 (1897)).
To invoke claim preclusion under New Jersey law, it is
required that the subsequent action involve substantially
similar or identical causes of action, issues, parties and
relief as were involved in the prior action. Culver v.
Insurance Co. of North America, 115 N.J. 451, 460, 559 A.2d 400
(1989). A final judgment by a court of competent jurisdiction
is also required. Id. To characterize two causes of action as
the same for claim preclusion purposes, a court should consider
(1) whether the wrong for which redress is sought is the same
in both actions (that is, whether the acts complained of and
the demand for relief are the same), (2) whether the theory of
recovery is the same, (3) whether the witnesses and documents
necessary at trial are the same and (4) whether the material
facts alleged are the same.
Id. at 461-462, 559 A.2d 400 (citations omitted).
In the instant case, there is a sufficient identity of causes
of action and parties to hold the prior criminal proceedings
preclusive of the present civil action. While technically the
parties in the prior criminal action were the State of New
Jersey and Wheeler, not Humphrey and Nieves and Wheeler,
Humphrey and Nieves were privies of the State in the prior
criminal action. "Privity . . . `is merely a word used to say
that the relationship between one who is a party on the record
and another is close enough to include that other within the
res judicata.'" E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489, 493
(3d Cir. 1990). See also Society Hill Civic Ass'n v. Harris,
632 F.2d 1045, 1064 (3d Cir. 1980). In the criminal action, the
State prosecuted its case through Humphrey and Nieves,
presented its case and evidence through Humphrey and Nieves and
relied on the substance and credibility of their testimony.
There was an identity of functions and interests in the
criminal action between the State and Humphrey and Nieves. The
parties in the instant case are essentially identical to those
present in the prior criminal proceedings, given for the
purposes of this motion Humphrey and Nieves were the privies of
the State in the prior action.
In addition, the wrongs alleged by Wheeler in the instant
civil action were also at issue in the prior criminal
proceedings. With respect to the trial court proceedings, the
alleged illegal conduct of Humphrey and Nieves constituted a
potential defense for Wheeler and was either raised by him or
was waived under claim preclusion principles, in that it should
have been raised in the prior criminal proceedings but was not.
See McNasby, 888 F.2d at 275. Moreover, the testimony and
physical evidence which Wheeler relies on in the instant civil
case are identical to the evidence he either contested or
submitted in the prior criminal proceedings, or should have
contested or submitted in order to avoid waiving a defense
asserting the illegality of the conduct of Humphrey and Nieves.
See Id. In addition, the underlying facts in the instant action
involve identical events to those in the prior criminal
proceedings pertaining to Wheeler's arrest and prosecution.
In addition, Wheeler in essence challenged the legality of
the conduct of Humphrey and Nieves before the appellate
division by challenging the sufficiency of the evidence in
Point I of his supplemental pro se brief. This issue depends at
least in part on the credibility of the testimony of Humphrey
and Nieves. The appellate division ruled Wheeler's challenge to
the sufficiency of the evidence to be "clearly without merit."
App. Div. Opinion at 7. Claim preclusion principles apply to bar
the instant complaint.
In addition, a number of issues raised in the instant
complaint are barred by principles of issue preclusion, which
"preclude the relitigation of an issue that has been put in
issue and directly determined adversely to the party against
whom the estoppel is asserted." Melikian, 791 F.2d at 277
(citing New Jersey-Philadelphia Presbytery of the Bible
Presbyterian Church v. New Jersey State Board of Higher
Education, 654 F.2d 868, 876 (3d Cir. 1981)); State v.
Gonzalez, 75 N.J. 181, 380 A.2d 1128 (1977)). Issue preclusion
does not extend to collateral issues nor to matters inferred
from the judgment. Id. To be precluded, a factual issue must
have been litigated and determined. Id. The issue must have
been "`distinctly put in issue' and `directly determined'
adversely to the party against which the estoppel is asserted."
New Jersey-Philadelphia Presbytery, 654 F.2d at 876 (quoting
City of Plainfield v. Public Service Electric and Gas, 82 N.J. 245,
257-58, 412 A.2d 759 (1980)). In addition, "[i]f a party
is precluded from litigating an issue with an opposing party,
he is also precluded from doing so with another person unless
he lacked a full and fair opportunity to litigate the issue in
the first action or unless other circumstances justify
affording him an opportunity to relitigate the issue."
Melikian, 791 F.2d at 277 (citing United Rental Equipment Co.
v. Aetna Life & Casualty Insurance Co., 74 N.J. 92,
376 A.2d 1183 (1977)). See also In re Braen,
900 F.2d 621, 628 (3d Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct.
782, 112 L.Ed.2d 845 (1991).
If there is more than one ground for the prior judgment, none
of which were expressly relied upon, the prior judgment may not
have preclusive effect in the subsequent action because it may
not be discernable by the subsequent court which issues were
actually litigated in the prior action. New Jersey-Philadelphia
Presbytery, 654 F.2d at 876 (citing Ettin v. Ava Truck Leasing
Inc., 53 N.J. 463, 480-81, 251 A.2d 278 (1969)).
To the extent Nieves relies on the judgment of conviction of
the state trial court to preclude Wheeler's instant claim,
"[t]he federal decisions have made clear that the rule of
collateral estoppel in criminal cases is not be applied with
the hyper-technical and archaic approach of a 19th century
pleading book, but with realism and rationality." Ashe v.
Swenson, 397 U.S. 436, 444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469
(1970) (barring second prosecution of robbery suspect where
suspect was found guilty in first prosecution for robbery of
different victim in identical incident, under rules of
collateral estoppel and double jeopardy). Where the judgment of
conviction was entered upon a general verdict, a court must
"`examine the record of a prior proceeding, taking into account
the pleadings, evidence, charge and other relevant matter'" to
determine whether preclusion should apply, unless it is clear
from the face of the complaint that the action is barred by the
issues decided in the prior proceedings. Id. (quoting Sealfon
v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 239, 92
L.Ed. 180 (1948)); Kauffman v. Moss, 420 F.2d 1270, 1274 (3d
Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84
(1970). See also Chisholm v. Defense Logistics Agency,
656 F.2d 42, 48-50 (3d Cir. 1981) (administrative board erred in
according convictions of civil servant preclusive effect in
removal proceedings, where board did not have before it
pleadings, transcript and exhibits from criminal trial).
"`In the case of a criminal conviction based on a jury
verdict of guilty, issues which were essential to the verdict
must be regarded as having been determined by the judgment.'"
Kauffman, 420 F.2d at 1274 (quoting Emich Motors Corp. v.
General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95
L.Ed. 534 (1951)). See also In re Coruzzi, 95 N.J. 557, 571,
472 A.2d 546 (1984) (conviction of judge conclusively
established his guilt in subsequent disciplinary proceedings),
appeal dismissed, 469 U.S. 802, 105 S.Ct. 56, 83 L.Ed.2d 8
(1984); Figueroa v. Hartford Insurance Co., 241 N.J.Super. 578,
583, 575 A.2d 888 (App. Div. 1990) (convicted person could be
collaterally estopped from relitigating issue of intent to
commit crime after issue was settled in previous criminal
action); Allstate Insurance Co. v. Schmitt, 238 N.J.Super. 619,
622, 570 A.2d 488 (App. Div.) (a judgment of conviction is
conclusive evidence of the convicted person's guilt and may be
asserted against that person under principles of issue
preclusion in later proceedings), cert. denied, 122 N.J. 395,
585 A.2d 394 (1990). In addition, "`considerations of
state-federal comity and judicial efficiency may dictate that a
civil rights action be dismissed when the alleged deprivation
has been examined fully during a state criminal trial or has
been waived by the complainant. . . .'" Kauffman, 420 F.2d at
1273 (quoting Mulligan v. Schlachter, 389 F.2d 231 (6th Cir.
1968)) (emphasis added).
Wheeler was tried and found by a jury to be guilty beyond a
reasonable doubt, a standard of proof higher than that present
in the instant civil action. Wheeler had every incentive to
fully litigate in the prior criminal proceedings all issues he
raises in this matter, given the risk he faced of losing his
freedom. Wheeler challenges the credibility of the testimony of
Nieves, the written reports and tangible evidence and asserts
the crimes were fabricated. Wheeler had the opportunity to
challenge the credibility of the testimony and evidence and the
legitimacy of the charges in the prior criminal proceedings.
The jury was sufficiently convinced of the credibility of such
testimony and evidence and the legitimacy of the charges to
guilty beyond a reasonable doubt of the crimes of which he was
Wheeler challenged on appeal the credibility of the testimony
and evidence presented by Wheeler and Nieves by challenging the
sufficiency of the evidence for conviction at Point I of his
supplemental pro se brief. The appellate division expressly
found his challenge to the sufficiency of the evidence was
"clearly without merit." App. Div.Op. at 7. Wheeler is
foreclosed from collaterally attacking the conviction in a
subsequent action on these grounds.*fn8
In addition, to the extent the complaint is based on the
alleged use of an overly suggestive photograph array, such
claim is foreclosed. Wheeler raised the suggestiveness of the
photograph array both during the trial court proceedings and at
Point III of his appellate brief. Both the trial court and the
appellate division determined Wheeler stated no constitutional
injury by alleging use of an overly suggestive photograph
array. It was held the in-court identification contained
sufficient indicia of reliability to be admitted into evidence
apart from the use of the photograph array. See App. Div.
Opinion at 2-3, 6-7. Those determinations foreclose Wheeler
from raising in these proceedings a claim of a constitutional
injury arising from the use of the overly suggestive photograph
The motion of Nieves to dismiss the complaint is therefore
granted. To decide otherwise would allow Wheeler a second
opportunity to litigate claims which were either litigated in
the prior proceedings or which he had every incentive to raise
in those proceedings but which he waived. Wheeler is not
entitled to "two bites at the apple."
In addition, because claim and issue preclusion likewise bar
Wheeler's complaint against Humphrey, the complaint against
Humphrey is dismissed sua sponte. A court may dismiss a
complaint of its own initiative if the complaint affords a
sufficient basis for the court's action. Bryson v. Brand
Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980); Coggins v.
Carpenter, 468 F. Supp. 270, 279 (E.D.Pa. 1979) (dismissing
complaint sua sponte against non-moving defendants under
Fed.R.Civ.P. 12(b)(6)). See also Reich v. Beharry, 686 F. Supp. 533,
535 (W.D.Pa. 1988), aff'd, 883 F.2d 239 (3d Cir. 1989)
(dismissing complaint sua sponte against non-moving defendant
because jurisdictional defect supporting dismissal of complaint
against moving defendant also supported dismissal of complaint
against non-moving defendant).
While the complaint is not entirely clear in its allegations,
Wheeler appears to assert that he was arrested without probable
cause because Humphrey conducted a "`pass by' [of] the area .
. . to verify that [Wheeler] was the suspect in this alleged
crime without going through any positive identification
procedure." Id. at ¶ 23. It appears Wheeler did not challenge
the legality of his arrest in the prior criminal proceedings.
As such, Wheeler was convicted upon a presumptively legal
arrest and waived the opportunity to challenge its legality.
Wheeler is therefore foreclosed from collaterally attacking the
arrest in a subsequent action by attacking the legality of
Humphrey's "pass by" procedure. This
being the sole allegation in the complaint against Humphrey,
the complaint against Humphrey is dismissed sua sponte.
For the foregoing reasons, the complaint of Wheeler is
dismissed in its entirety.