Susan Stemler v. FLORENCE, City of Florence

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0420P (6th Cir.)
File Name: 03a0420p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 01-5956
SUSAN STEMLER,
Plaintiff-Appellee,
WILLIAM CHIPMAN,
Administrator of the Estate of
Conni Black,
Plaintiff-Appellant/
Cross-Appellee,
RANDY BLACK, Legal
Guardian of Shianne Black,
Intervenor-Appellant/
Cross-Appellee,
v.
FLORENCE, City of Florence,
Defendant-Appellee,
BOBBY JOE WINCE, in his
official capacity as an Officer
of the Florence Police
Department; JOHN DOLAN, in
his official capacity as an
Officer of the Florence Police
Department; THOMAS
DUSING, in his official
capacity as an Officer of the
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Nos. 01-5956/6205
2 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
Florence Police Department,
Defendants-Appellees/
Cross-Appellants,
RON KENNER, in his official
capacity as Boone County
Sheriff,
Defendant.
No. 01-6205
SUSAN STEMLER,
Plaintiff-Appellee,
RANDY BLACK,
Intervenor-Appellee/
Cross-Appellant,
v.
FLORENCE, City of Florence,
Defendant,
BOBBY JOE WINCE, in his
official capacity as an Officer
of the Florence Police
Department; JOHN DOLAN, in
his official capacity as an
Officer of the Florence Police
Department; THOMAS
DUSING, in his official
capacity as an Officer of the
Florence Police Department,
Defendants-Appellants/
Cross-Appellees.
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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
3
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
Nos. 94-00062; 95-00014—William O. Bertelsman,
District Judge.
Argued: December 5, 2002
Decided and Filed: December 2, 2003
Before: BOGGS, Chief Judge; and SILER and GIBBONS,
Circuit Judges.
_________________
COUNSEL
ARGUED: Eric C. Deters, ERIC C. DETERS &
ASSOCIATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey
C. Mando, ADAMS, STEPNER, WOLTERMANN &
DUSING, Covington, Kentucky, for Defendants.
ON BRIEF: Eric C. Deters, ERIC C. DETERS &
ASSOCIATES, Ft. Mitchell, Kentucky, for Plaintiffs. Jeffrey
C. Mando, ADAMS, STEPNER, WOLTERMANN &
DUSING, Covington, Kentucky, Hugh O. Skees, ROUSE,
SKEES, WILSON & DILLON, Florence, Kentucky, David
Whalin, LANDRUM & SHOUSE, Louisville, Kentucky, for
Defendants.
_________________
OPINION
_________________
BOGGS, Chief Judge. Appellant/cross-appellee William
Chipman, administrator of the estate of Conni Black, and
intervenor-appellant/cross-appellee Randy Black appeal the
4 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
district court’s order granting summary judgment for the
defendants in this civil action arising out of an encounter
between Conni Black and Susan Stemler, on the one hand,
and police officers from the City of Florence, Kentucky and
Boone County, Kentucky. Appellees/cross-appellants Bobby
Joe Wince, John Dolan, and Thomas Dusing appeal the denial
of summary judgment on Susan Stemler’s claim of violation
of equal protection. Wince appeals the denial of summary
judgment on Stemler’s claims of fabrication of evidence and
excessive force.
This case arises out of an incident that occurred on
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
removed her from Stemler’s car and placed her in the truck of
her boyfriend, Steve Kritis. Both Black and Kritis had been
drinking heavily, and after an altercation between them at a
bar, Black left with Stemler in Stemler’s car. Kritis then
began to chase the women on the streets of Florence before
both the car and the truck were stopped by the police after a
concerned citizen alerted them to the situation. Stemler was
arrested for driving under the influence. Witnesses say that
all the police officers present repeated Kritis’s assertion that
Stemler was a lesbian to each other and to others present. No
police officer ever checked Kritis for intoxication or asked
him to leave his truck. Black was either escorted or carried
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
lost control of the truck. The truck swerved and collided with
the guardrail. Black was partially ejected from the passenger-
side window. Her arm was completely severed from her body
and her head was split into two parts by some part of the
guardrail.

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
5
1W e treated the complaint against Kenner as a suit directly against
Bo one County. Stemler, 126 F.3d at 864 n.8.
2This claim will be referred to as “the substantive due process claim.”
I. The Claims
A. Chipman’s claim
On March 7, 1994, William Chipman, the administrator of
the estate of Conni Black, filed a wrongful death action in the
Boone County Circuit Court against Florence police officers
Dusing, Dolan, and Wince; Boone County police officers Rob
Reuthe and Chris Alsip; the City of Florence; and Ron
Kenner, the Boone County Sheriff. The Boone County
Circuit Court entered summary judgment on behalf of the
defendants on Chipman’s wrongful death claim. Chipman v.
City of Florence, No. 94-CI-00202 slip op. at 4 (Boone Co.,
Ky., Cir. Ct. Apr. 2, 1996). The Kentucky Court of Appeals
reversed the Circuit Court. Chipman v. City of Florence, No.
1996-CA-001287-MR (Ky. Ct. App. Nov. 25, 1998). The
Kentucky Supreme Court then reversed the Court of Appeals
and reinstated the summary judgment ordered by the Boone
County Circuit Court. City of Florence v. Chipman, 38 S.W.
3d 387 (Ky. 2001).
Chipman also filed a complaint in federal court against the
same defendants on March 31, 1994.1 The complaint alleged
that the defendants were liable under 42 U.S.C. § 1983 for
Black’s wrongful death because they had displayed deliberate
indifference by forcing her into Kritis’s car.2
Chipman’s federal claims were dismissed by the district
court in 1994. The district court granted the individual
officers’ motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), for failure to state a claim, on the ground
of qualified immunity. The district court also granted the
6 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
motions for summary judgment of Florence and Boone
County. Chipman v. City of Florence, 858 F. Supp. 87 (E.D.
Ky. 1994), reconsideration denied on amended complaint,
866 F. Supp. 332 (E.D. Ky. 1994).
On appeal, we upheld the district court’s order granting
summary judgment to the municipal defendants, Florence and
Boone County. Stemler, 126 F.3d at 866. However, we
reversed the district court’s dismissal of Chipman’s claims
against the individual officers. We held that Chipman had
pled facts sufficient to maintain her substantive due process
claim against the individual officers. Id. at 870. The only
state court decision prior to our decision was the Boone
County Circuit Court decision awarding judgment to the
defendant officers, holding that Black was not in custody
when the pickup struck the guardrail and that none of the state
actors were the direct cause of her death on the highway. We
stated in Stemler that “[w]hile these findings are entitled to
preclusive effect, they are irrelevant to the merits of her
substantive due process claim.” Id. at 870 n.12. The case
was remanded to the district court for further proceedings
consistent with the opinion.
Shortly after the opinion issued, Randy Black was granted
permission to intervene on behalf of Conni Black’s minor
child, Shianne Black, to bring a claim of loss of parental
consortium. At about the same time, the federal district court
held the case in abeyance pending a decision by the Kentucky
Supreme Court on appeal of the Boone County Circuit court’s
order entering summary judgment in favor of defendants and
the Kentucky Court of Appeals reversal of that order, which
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
judgment on Chipman’s substantive due process claim, and
Shianne Black’s claim for loss of parental consortium. The
district court found that the decision of the Kentucky
Supreme Court barred their claims under the doctrine of issue

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
7
preclusion. The issue that the district court found could not
be relitigated was whether Black was in “custody” when she
got into Kritis’s car because, according to the district court,
the Kentucky Supreme Court had held that Black was never
in custody.
B. Stemler’s Claims
Susan Stemler filed a federal complaint, pursuant to
42 U.S.C. § 1983, against officers Wince, Dolan, Dusing, and
the City of Florence. The complaint alleged claims of
excessive force, wrongful arrest, malicious prosecution, and
violation of equal protection on the bases of sex and sexual
orientation. The district court granted the officers’ Rule
12(b)(6) motions to dismiss on the ground of qualified
immunity. The district court then consolidated her case with
Chipman’s and awarded summary judgment to Florence. The
federal district court then entered an order granting Stemler’s
motion for voluntary dismissal of her excessive force claim
against Wince. This voluntary dismissal was entered
pursuant to an agreement between the parties to dismiss the
claim so that an appeal could proceed in this court. The
agreement allowed her to bring her claim again should she be
successful upon appeal.
As Chipman did, Stemler had also brought similar claims
in Kentucky state court. She raised state-law claims of
malicious prosecution, false arrest, abuse of process, assault
and battery, false imprisonment, and negligent or intentional
infliction of emotional distress. Stemler v. Florence, No. 94-
CI-00459. The Boone County Circuit Court held that she was
precluded from prosecuting all of her claims, except for
assault and battery. See Stemler v. City of Florence, 126 F.3d
856, 871 (6th Cir. 1997). There was ample evidence
constituting probable cause for her arrest. This barred her
false arrest and malicious prosecution claim. As the
defendants were police officers, the court found that there was
no distinction between her claims of false arrest and false
8 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
imprisonment. It also found that her abuse of process claim
was barred based on the probable cause finding, that the
officers had no improper motive in arresting her, and that a
state prosecutor independently had made the prosecutorial
decisions in her criminal case. As for her claims of negligent
or intentional infliction of emotional distress, the court found
that under Kentucky law, there is no viable cause of action for
these torts when she had raised essentially identical claims
under traditional torts as discussed above. Finally, the court
determined that there was a genuine issue of material fact
with respect to her assault and battery claim against Wince,
but not against Dusing and Dolan. Stemler later voluntarily
dismissed this claim. The Kentucky Court of Appeals
affirmed the grant of summary judgment. Stemler did not
pursue an appeal.
Upon appeal of the district court decision to this court, we
affirmed the grant of summary judgment in favor of the City
of Florence. Stemler, 126 F.3d at 866. We also affirmed the
dismissal of her false arrest and malicious prosecution claims
because the Boone County Circuit Court’s finding that there
had been probable cause to arrest and prosecute Stemler
precluded relitigating that issue in this court. Id. at 871-72.
We noted that although Stemler seemed to be asserting a
claim that Wince had falsified evidence against her, and that
the state court’s finding of probable cause would not preclude
her from prosecuting this claim, she had failed to properly
plead it. Id. at 872. We stated that she would be free to file
a new complaint against Wince raising that claim. Ibid.
Finally, we reversed the dismissal of Stemler’s equal
protection claim of selective prosecution against the officers,
holding that the allegations in her complaint were sufficient
to state a claim. Id. at 874.
After our opinion in Stemler was issued, Stemler amended
her complaint to allege that Wince fabricated the blood

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
9
3Stemler was twice tried in Boone County District Court on the DUI
charge. The first trial ended in a hung jury. She was acquitted at the end
of her se cond trial.
sample evidence used in her DUI trials.3 As it did in
Chipman’s case, the district court held Stemler’s case in
abeyance pending final judgments in the state court
proceedings. In June 2001, the district court denied the
officers’ motion for summary judgment on Stemler’s claims
of denial of equal protection based on selective prosecution,
and Wince’s motion for summary judgment on her claims of
falsification of evidence, and excessive force. The district
court noted that none of these claims actually had been
litigated in state court. It stated that while it might agree with
the defendants that Stemler could and should have brought
these claims in state court, our opinion in Stemler had implied
that claim preclusion did not apply. The court further stated
that our holding in Stemler stated that she could proceed with
these claims, and that the “law of the case” would be violated
if it did not permit her to do so.
II. Chipman’s substantive due process claim
Chipman argues that our resolution of the custody issue in
his favor in Stemler should have had preclusive effect on the
Kentucky state courts. He argues that our opinion’s holdings
constituted the “law of the case” and the district court erred in
applying the doctrine of issue preclusion based on the state
court proceedings. The officers argue that the district court
was correct in deciding that issue preclusion barred the
relitigation of the issue of custody. Alternatively, they argue
that Chipman’s substantive due process claim is barred from
further litigation under the Rooker-Feldman doctrine, or
under the doctrine of claim preclusion.
We review de novo a district court’s decision with regard
to issue preclusion or claim preclusion. Heyliger v. State
10 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
Univ. and Cmty. Coll. Sys. of Tenn., 126 F.3d 849, 851 (6th
Cir. 1997); Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th
Cir. 1995), cert. denied, 116 S. Ct. 1848 (1996). When
deciding whether to afford preclusive effect to a state court
judgment, the Full Faith and Credit Act, 28 U.S.C. § 1738,
requires the federal court to give the prior adjudication the
same preclusive effect it would have under the law of the state
whose court issued the judgment. See Migra v. Warren City
Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); Heyliger, 126
F.3d at 851-52.
Under Kentucky law, “[c]laim preclusion bars a party from
re-litigating a previously adjudicated cause of action and
entirely bars a new lawsuit on the same cause of action.”
Yeoman v. Kentucky Health Policy Bd., 983 S.W.2d 459, 465
(Ky. 1998). “Issue preclusion bars the parties from
relitigating any issue actually litigated and finally decided in
an earlier action.” Ibid.
A. Issue Preclusion
In order for issue preclusion to apply in Kentucky, (1) the
issue in the second case must be the same as the issue in the
first case, (2) the issue must have been actually litigated,
(3) the issue must have been actually decided, and (4) the
decision on the issue in the prior action must have been
necessary to the court’s judgment. Ibid. The district court
found that all four factors were met when the Kentucky
Supreme Court resolved Chipman’s state claims.
In order for Chipman to prevail in the Kentucky state
courts, the Kentucky Supreme Court stated that he had to
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
on, stating that “[i]n order for the special relationship to exist,
two conditions are required: 1) the victim must have been in
state custody or otherwise restrained by the state at the time

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
11
the injury producing act occurred, and 2) the violence or other
offensive conduct must have been committed by a state
actor.” Ibid. The court held that “[t]here is no evidence from
which it can be ascertained that Black was in state custody or
otherwise restrained by the police at the time the pickup truck
struck the guardrail with the fatal result. In addition, there is
no evidence to support a claim that the conduct which caused
the pickup truck to leave the roadway and strike the guardrail
was the result of the actions of the police officers.” Ibid.
The Kentucky Supreme Court also stated that Black was
never in custody. Id. at 393. This is precisely the issue that
is relevant in a § 1983 action. In order to prevail on the
§ 1983 claim, Chipman needs to show that the defendant
officers “violated substantive due process by placing [Black]
at risk of harm from a third party . . . .” Stemler, 126 F.3d at
867. The court must first determine whether “the plaintiff and
the state actors had a sufficiently direct relationship such that
the defendants owed [Black] a duty not to subject her to
danger,” and then “the court must also conclude that the
officers were sufficiently culpable to be liable under a
substantive due process theory.” Ibid. As to the first part, the
relevant inquiry is whether Black was in custody at the time
the officers allegedly forced her into Kritis’s truck.
First, the Kentucky Supreme Court stated that there was no
evidence in the record to support a finding that Black was
ever in custody, the same issue that is necessary to Chipman’s
federal claim. Second, the custody issue was actually
litigated in the state courts: in the Boone County Circuit
Court, the Kentucky Court of Appeals and the Kentucky
Supreme Court. The Kentucky Supreme Court found that
there was no evidence to support a finding that Black was
ever in custody in the context of deciding the appeal of a
summary judgment motion. A summary judgment order is a
decision on the merits. Ohio Nat’l Life Ins. Co. v. United
States, 922 F.2d 320, 325 (6th Cir. 1990). Third, the issue
was actually decided by the Kentucky Supreme Court. The
12 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
court made an explicit statement that there was insufficient
evidence to support a finding that Black was in custody.
However, the Kentucky Supreme Court’s statement that she
was never in custody was not necessary to its judgment. The
Boone County Circuit Court held that there was no genuine
issue of material fact regarding whether Black was in custody
at the time the pickup struck the guardrail – the point at which
the injury-producing act occurred. Specifically, it stated she
was not in custody at this point. This was the only holding
necessary for the affirmance of the Boone County Circuit
Court’s judgment. As we noted in discussing this lower court
decision in Stemler, the holdings of the state court on this
issue are entitled to preclusive effect. Nonetheless, this
precise issue is irrelevant to the substantive due process
claim.
As the Kentucky Court of Appeals (now the Kentucky
Supreme Court) stated in Sedley v. City of West Buechel, 461
S.W.2d 556, 558 (Ky. 1971):
The general rule is that a judgment in a former action
operates as an estoppel only as to matters which were
necessarily involved and determined in the former action,
and is not conclusive as to matters which were
immaterial or unessential to the determination of the
prior action or which were not necessary to uphold the
judgment.
(Emphasis added).
As the Kentucky Supreme Court correctly stated, our
statements in Stemler regarding whether Black was in custody
were dicta, as the only issue before us at that point was the
sufficiency of the allegations in the complaint. Similarly, the
statements of the Kentucky Supreme Court regarding whether
Black was ever in custody are dicta, as they are not necessary

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
13
to the state courts’ disposition of the case. The actual holding
of the Kentucky Supreme Court reads:
In order for a claim to be actionable in negligence, there
must be the existence of a duty and unless a special
relationship was present, there is no duty owing from any
of the police officers to Black to protect her from crime
or accident. In order for the special relationship to exist,
two conditions are required: 1) the victim must have been
in state custody or otherwise restrained by the state at the
time the injury producing act occurred, and 2) the
violence or other offensive conduct must have been
committed by a state actor. Neither of these factors can
be found from the undisputed material facts in this case.
There is no evidence from which it can be ascertained
that Black was in state custody or otherwise restrained by
the police at the time the pickup truck struck the
guardrail with the fatal result. In addition, there is no
evidence to support a claim that the conduct which
caused the pickup truck to leave the roadway and strike
the guardrail was the result of the actions of the police
officers.
City of Florence v. Chipman, 38 S.W.3d 387, 392 (Ky. 2001)
(emphasis added and citations omitted).
The Kentucky Supreme Court would have reached the same
result if it had found that Black was in custody at the time she
entered Kritis’s truck, so long as it found she was not in
custody at the time the truck hit the guardrail.
The district court erred in finding that issue preclusion
barred Chipman’s substantive due process claim.
14 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
B. Claim Preclusion
The defendant officers also argue that claim preclusion
should bar Chipman’s claim against them. Claim preclusion
bars further litigation under Kentucky law when: (1) there is
identity of the parties; (2) there is identity of the causes of
action; and (3) the action has been resolved on the merits.
Yeoman, 983 S.W.2d at 465. Yeoman also stated that “[f]or
claim preclusion to apply, the subject matter of the
subsequent suit must be identical.” Ibid.
In Barnes v. McDowell, 848 F.2d 725 (6th Cir. 1988), we
stated that “Kentucky courts do not apply the doctrine of
claim preclusion in a subsequent suit involving facts already
at issue in another action when the causes of action in the two
proceedings are not the same.” Id. at 730. A district court,
interpreting Kentucky law, stated:
[W]here the second action between the same parties is
upon a different claim or demand, the judgment in the
prior action operates as an estoppel only as to those
matters in issue or points controverted, upon the
determination of which the finding or verdict was
rendered. In all cases, therefore, where it is sought to
apply the estoppel of a judgment rendered upon one
cause of action to matters arising in a suit upon a
different cause of action, the inquiry must always be as
to the point or question actually litigated and determined
in the original action, not what might have been thus
litigated and determined. Only upon such matters is the
judgment conclusive in another action.
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)).

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
15
While there is identity of the parties, and the action was
resolved on the merits, Chipman’s claim is not barred, as it is
not the same claim as in state court. His claim in the state
courts was for wrongful death, which is a negligence claim.
This is not the same cause of action as the one he brought in
the federal court, a claim of violation of Black’s substantive
due process rights. It is indeed true that this claim could have
been brought in state courts. However, under the Kentucky
law of claim preclusion, this does not matter, as there is no
identity of the causes of action. Yeoman, 983 S.W.2d at 465.
Chipman’s federal claim is not barred by claim preclusion.
C. Rooker-Feldman
The defendant officers also argue that the federal district
court lacked jurisdiction to consider Chipman’s claim under
the Rooker-Feldman doctrine. They argue that Chipman’s
federal suit is an attempt to appeal a state court decision to the
federal courts.
The doctrine gets its name from two Supreme Court cases.
Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149
(1923), held that the power to hear appeals from state court
judgments is exclusively held by the United States Supreme
Court. The Supreme Court held in District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303
(1983), that federal district courts do not have jurisdiction to
hear challenges to certain state-court decisions. The Rooker-
Feldman doctrine states that “lower federal courts lack
subject matter jurisdiction to engage in appellate review of
state court proceedings or to adjudicate claims ‘inextricably
intertwined’ with issues decided in state court proceedings.”
Peterson Novelties, Inc. v. Berkley, 305 F.3d 386, 390 (6th
Cir. 2002). In defining “inextricably intertwined,” we have
adopted the reasoning that:
[t]he federal claim is inextricably intertwined with the
state-court judgment if the federal claim succeeds only to
16 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
the extent that the state court wrongly decided the issues
before it. Where federal relief can only be predicated
upon a conviction that the state court was wrong, it is
difficult to conceive the federal proceeding as, in
substance, anything other than a prohibited appeal of the
state-court judgment.
Id. at 391 (quoting Catz v. Chalker, 142 F.3d 279, 293 (6th
Cir. 1998)). In Peterson Novelties, we held that the Rooker-
Feldman doctrine was inapplicable to claims that the state
court did not address or rule upon even though the federal
claims arose out of the same nucleus of facts. Id. at 391-93.
Therefore, the question is whether this court could hold that
the officers violated Black’s constitutional rights without
implicitly holding that the state court wrongly decided the
issues before it. Id. at 393.
This court discussed the Rooker-Feldman doctrine and its
frequent conflation with claim and issue preclusion in
Hutcherson v. Lauderdale County, 326 F.3d 747 (6th Cir.
2003). This court stated that Seventh Circuit case law
provided a useful way to determine which doctrine to apply:
In order to determine the applicability of the Rooker-
Feldman doctrine, the fundamental and appropriate
question to ask is whether the injury alleged by the
federal plaintiff resulted from the state court judgment
itself or is distinct from that judgment. If the injury
alleged resulted from the state court judgment itself,
Rooker-Feldman directs that the lower federal courts lack
jurisdiction. If the injury alleged is distinct from that
judgment, i.e., the party maintains an injury apart from
the loss in state court and not "inextricably intertwined"
with the state judgment, . . . res judicata may apply, but
Rooker-Feldman does not . . . .
Id. at 755 (quoting Garry v. Geils, 82 F.3d 1362, 1365-66 (7th
Cir. 1996)).

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of Florence, et al.
17
As Chipman is not directly challenging the state court’s
judgments in federal court, the doctrines of claim and issue
preclusion are more properly applied to this case. However,
in any case, the Rooker-Feldman doctrine does not apply.
The Kentucky Supreme Court’s discussion of whether Black
was ever in custody was dicta, and therefore any finding by
the federal court that Black was in custody at some point
during the encounter would not implicitly hold that the state
court improperly decided the issues before it. The issue of
Black’s custody before the truck hit the guardrail was not an
issue that was salient before the Kentucky court.
The district court does have jurisdiction to hear Chipman’s
substantive due process claim.
III. Stemler’s Claims
A. Equal Protection Claim
The defendants argue that Stemler’s equal protection claim
is barred by claim preclusion, issue preclusion, and the
Rooker-Feldman doctrine. The district court, although
inclined to rule that her claim was barred by claim preclusion,
instead decided that this court’s decision in Stemler precluded
the application of any of those doctrines. We first note that
the district court was not required to abstain from analyzing
Stemler’s claims under the claim preclusion doctrine because
of our previous opinion. Our opinion was issued while
Stemler’s appeal was pending with the Kentucky Court of
Appeals. We stated that at that point, claim preclusion did
not yet apply to her claims before the federal courts. We
nowhere said that claim preclusion would never apply.
The defendant officers argue that the Kentucky Court of
Appeals decision conclusively decided the question of
whether they had acted with improper motive in arresting her.
The Court of Appeals stated that “[a]lthough the officers may
have been crude during Stemler’s arrest, we agree with the
18 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
circuit court that Stemler cannot establish that they acted with
an improper motive.” Stemler v. City of Florence, No. 1996-
CA-001318-MR at 23. The court made this statement in the
context of discussing the propriety of summary judgment
regarding Stemler’s abuse of process claim. One of the
essential elements of that tort is an ulterior purpose. Bonnie
Braes Farms, Inc. v. Robinson, 598 S.W. 2d 765, 766 (Ky. Ct.
App. 1980). It was one of several findings of fact that
supported the granting of summary judgment in favor of the
defendants.
Stemler argues that our statement in our opinion in Stemler
that “the record evidence supports a finding” that the officers
chose to arrest her because they believed her to be a lesbian
should have had preclusive effect on the Kentucky state
courts. However, this statement was dicta. We reversed the
district court’s dismissal of her claim on a 12(b)(6) motion.
Thus the only question before our court was whether her
complaint adequately stated an equal protection claim. A
dismissal pursuant to 12(b)(6) “is proper only if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of its claims that would entitle it to relief.”
Kostrzewa v. City of Troy, 247 F.3d 633, 638 (6th Cir. 2001).
That judgment does not preclude a later summary judgment
motion, arguing that the plaintiff in fact could not show such
evidence. In state court, the claim was being considered for
summary judgment purposes. A summary judgment order is
a decision on the merits. Ohio Nat’l Life Ins. Co., 922 F.2d
at 325. Thus the issue was actually litigated in the state
courts. And, as the state court made an explicit finding that
the officers had no improper motive, the issue was actually
decided.
In order to maintain a claim of selective prosecution (the
basis of Stemler’s equal protection claim), the plaintiff must
prove that a state actor initiated the prosecution with a
discriminatory purpose. This is the same issue as the ulterior
purpose issue in Stemler’s state claim of abuse of process.

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
19
And finally, the issue was necessary to the resolution of the
state claim. Thus, the state court’s finding that the officers
did not have an improper motive in arresting Stemler has
preclusive effect on relitigating that issue in the federal
courts.
Because Stemler’s equal protection claim is barred by issue
preclusion, the district court should have granted summary
judgment to the officers on that claim.
B. Excessive Force
Stemler’s federal claim of excessive force and her state
claim of assault and battery against Wince were voluntarily
dismissed so that she could appeal unfavorable lower court
decisions on other claims. Wince first argues that Stemler has
never taken any action to revive her federal claim. However,
Stemler’s Second Amended Complaint was accepted by the
district court on January 13, 1998. Her Second Amended
Complaint incorporated by reference her initial complaint and
her First Amended complaint, which included the excessive
force claim. Furthermore, Wince does not explain why he did
not make this argument when he moved the district court for
summary judgment on this claim, and why the district court
denied his summary judgment motion without ever
addressing this issue.
Wince next argues that the voluntary dismissal agreement
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
20 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
her state law claims bars her from reviving her assault and
battery claims.
First, a voluntary dismissal of a claim is not a judgment on
the merits. Ky. R. Civ. P. 41.01. While Stemler’s assault and
battery claim was dismissed with prejudice against Dolan and
Dusing, the state court did not grant summary judgment to
Wince, and issue preclusion does not apply to her claim
against Wince. Second, the agreement itself does not bar her
from bringing her federal claim. As she was not successful
on appeal in the state courts, the agreement would seem to bar
her from bringing her assault and battery claim again in state
courts. However, the agreement addressed her federal and
state claims separately. The agreement did not say that if she
was unsuccessful in the state courts that she was barred from
bringing her federal excessive force claim again. The
agreement that bars her from bringing her state assault and
battery claim is not a judgment for the purposes of issue
preclusion, as Wince seems to argue.
Wince next argues that the Rooker-Feldman doctrine barred
the district court from considering Stemler’s claims since any
decision favorable to her would have been an impermissible
review of issues decided adversely to her in the Kentucky
state court. He also argues that the claim preclusion doctrine
bars her from relitigating this claim in the federal courts as
well. We will discuss the application of these doctrines
below in conjunction with Stemler’s other outstanding claim.

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Nos. 01-5956/6205 Stemler, et al. v. City
of Florence, et al.
21
C. The application of claim preclusion and the Rooker-
Feldman doctrines to Stemler’s Fabrication of
Evidence and Excessive Force Claims
Wince argues that Stemler’s excessive force and fabrication
of evidence claims should be barred by claim preclusion and
the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine, as previously noted, states
that “lower federal courts lack subject matter jurisdiction to
engage in appellate review of state court proceedings or to
adjudicate claims ‘inextricably intertwined’ with issues
decided in state court proceedings.” Peterson Novelties, 305
F.3d at 390. The question for this court is whether a federal
court can rule in Stemler’s favor on her federal claims without
implicitly holding that the state courts wrongly decided the
issues before them. Id. at 393.
The state courts adjudicated several of Stemler’s claims.
As noted above, Stemler’s claims of malicious prosecution
and false arrest and imprisonment were dismissed on
summary judgment because the state court held that there was
no genuine issue that probable cause existed for her DUI
arrest. Her claims of intentional or negligent infliction of
emotional distress and outrage were dismissed on summary
judgment because Kentucky law holds that if a claimant raises
claims under traditional torts that allow recovery for
emotional distress, the claimant cannot raise claims of
intentional or negligent infliction of emotional distress or
outrage. The Boone County Circuit Court found that there
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
22 Stemler, et al. v. City
of Florence, et al.
Nos. 01-5956/6205
courts confined themselves to the issues of probable cause
and the motive for Stemler’s arrest. The district court could
rule in Stemler’s favor without even implicitly holding that
the Kentucky courts wrongly decided the issues before them.
The Rooker-Feldman doctrine does not apply to these claims,
and the district court has jurisdiction to hear them.
Wince also argues that claim preclusion would bar Stemler
from bringing these claims in federal court, because as she
could have brought them in state court. However, as
discussed above, the Kentucky law of claim preclusion only
bars bringing the same cause of action twice. Stemler’s claims
for falsification of evidence and excessive force could have
been brought in state court and were not. However, under
Kentucky law, as she did not bring identical causes of action
in state court, she is not barred from bringing them in federal
court. Yeoman, 983 S.W. 2d at 465. The district court did not
err when it decided that claim preclusion did not apply to
these claims.
IV. Conclusion
In No. 01-5956, we REVERSE the grant of summary
judgment to the defendants on Chipman’s substantive due
process claim. In No. 01-6205, we REVERSE the denial of
summary judgment with regard to Stemler’s equal protection
claim. We AFFIRM the denial of summary judgment with
regard to Stemler’s excessive force and falsification of
evidence claim. Both cases are REMANDED to the district
court for further proceedings consistent with this opinion.

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