This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-98-1410

Charles Earl Hanson,
Appellant,

vs.

David Hackley, et al.,
Respondents.

Filed February 2, 1999
Affirmed in part and reversed in part
Shumaker, Judge

Hennepin County District Court
File No. 982351

Bruce A. Rasmussen, Michael Rodning Bash, Bruce A. Rasmussen & Associates, 2116 Second Avenue South, Minneapolis, MN 55404, and

Philip W. Getts, Law Offices of Philip W. Getts, 2116 Second Avenue South, Minneapolis, MN 55404 (for appellant)

Amy Klobuchar, Hennepin County Attorney, Karla F. Hancock, Senior Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondents)

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant sued Hennepin County in tort and for civil rights violations. While the county's summary judgment motion was pending, appellant started a second lawsuit on the same facts but against the county sheriff and two deputies individually. The judge in the first action dismissed all but a negligence claim. The judge in the second lawsuit ruled that appellant was collaterally estopped from bringing the second action and dismissed it. Appellant alleges that the dismissal was error. We affirm in part and reverse in part.

FACTS

Suspecting that appellant was driving while under the influence of alcohol, a police officer arrested him on January 20, 1996, and took him to the police station for an Intoxilyzer test. Although appellant's highest test reading was .09%, the officer decided to hold him in custody in the Hennepin County Adult Detention Center.

At the detention center, respondent deputy sheriff David Hackley searched appellant and asked him about his medical condition. Appellant alleges that he told Hackley that he was an epileptic and that he had phenobarbital in his possession. Appellant contends that Hackley required him to surrender the phenobarbital and all other personal property and then placed him in a cell.

Later, respondent deputy sheriff Christopher Mathisen escorted appellant from his cell to be fingerprinted. During the fingerprinting, appellant felt as if he were going to have a seizure, and he contends that he told Mathisen that he was "feeling bad" and needed medical attention. Appellant alleges that Mathisen said a nurse would examine him. The nurse never arrived.

Back in his cell, appellant again sensed the onset of a seizure and he contends that he repeatedly asked deputies for medical help but they ignored him. He suffered two seizures in his cell.

Appellant contends that the detention center incident caused him to suffer post-traumatic stress disorder, anxiety and clinical depression. He started a lawsuit on March 3, 1997, naming as defendants "Hennepin County, Sheriff of Hennepin County and Officers of the Hennepin County Sheriff's Department" and alleging entitlement to damages for civil rights violations, negligence and intentional infliction of emotional distress. The complaint was served only on the Hennepin County Board.

Respondent Hennepin County moved for summary judgment. While the judge had the motion under advisement, appellant retained new lawyers. They started this second lawsuit on the same facts as the first action but they named and served as defendants deputies Hackley and Mathisen and sheriff Patrick McGowan. They alleged claims of civil rights violations, false imprisonment, intentional infliction of emotional distress and gross negligence.

On January 27, 1998, the judge in the first action granted partial summary judgment, dismissing the civil rights and emotional distress claims, but preserving the negligence claim for trial. That trial is pending.

Respondents in this second action then moved to dismiss all claims on the ground that they are barred by collateral estoppel. The judge granted the motion. Appellant appeals from the judgment of dismissal in the second action.

D E C I S I O N

The legal principle that a matter finally adjudicated may not be relitigated is applied in two forms: (1) res judicata, or claim preclusion, and (2) collateral estoppel, or issue preclusion. Gulbranson v. Gulbranson, 408 N.W.2d 216, 217 (Minn. App. 1987). Res judicata, designed to prevent the relitigation of claims, applies when a subsequent claim is based on an action previously determined, regardless of the issues raised or actually litigated in the initial action. Beutz v. A.O. Smith Harvestore Prods., Inc., 431 N.W.2d 528, 531 (Minn. 1988); Hauser v. Mealey, 263 N.W.2d 803, 806 (Minn. 1978);. Res judicata requires (1) a final adjudication on the merits, (2) a subsequent suit involving the same cause of action, and (3) identical parties or persons in privity with the original parties. Demers v. City of Minneapolis, 486 N.W.2d 828, 830 (Minn. App. 1992). Res judicata will bar a subsequent suit for the same cause of action not only as to every matter actually litigated, but also as to every matter that might have been litigated. Id. (citation omitted). See also Youngstown Mines Corp. v. Prout, 266 Minn. 450, 466, 124 N.W.2d 328, 340 (1963) (judgment on merits is absolute bar not only to every matter actually litigated "but also as to every matter which might have been litigated.").

Collateral estoppel prevents parties from relitigating issues that are identical to issues previously litigated and that were necessary and essential to the former resulting judgment. Ellis v. Minneapolis Comm'n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982). Collateral estoppel applies only when the following elements are satisfied: (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Care Institute, Inc. - Maplewood v. County of Ramsey, 576 N.W.2d 734, 737 (Minn. 1998) (citation omitted). Both res judicata and collateral estoppel are subject to de novo review. Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).

Any dismissal of a claim, other than for lack of jurisdiction, forum non conveniens, or failure to join an indispensable party, operates as an adjudication on the merits. Minn. R. Civ. P. 41.02 (c). Appellant argues that all the claims that were dismissed in the initial action were dismissed because the court lacked jurisdiction over defendants, and therefore there was no final adjudication on the merits. Respondent argues that the court dismissed all the claims on the merits, and therefore there was a final adjudication, precluding the current claims. Because the procedural posture of each claim is different, we address them each separately.

A. Civil Rights Violations

The court in the initial action dismissed the civil rights claims because 1983 claims can be brought only against individual persons, and no individuals were named in the lawsuit. See 42 U.S.C. 1983 (1998). In fact, appellant conceded that the civil rights counts in his complaint could not proceed because no individuals were named. Even though the court purported to dismiss the claims "with prejudice," it did not address the claims on their merits.

In the second lawsuit, appellant alleged that his civil rights were violated by certain individuals. Respondent argues that these civil rights counts were dismissed on the merits because the court dismissed the claims "with prejudice." We disagree. The mere use of the phrase "dismissed with prejudice" does not turn a jurisdictional dismissal into a dismissal on the merits. Appellant conceded only the defect of failure to join individual defendants, and the court did not note any problem with the claims other than that they were not against the proper defendants. The dismissal of a  1983 claim for failure to sue individuals was in the nature of a jurisdictional dismissal. It is not a final adjudication on the merits and does not collaterally estop a subsequent action on the same facts against individual parties.

B. Gross Negligence

The district court ruled that the negligence claim against Hennepin County in the first lawsuit could proceed to trial, and that trial has not yet been held. Appellant brought gross negligence claims against individual defendants in the second action, arising out of the same events. However, there has been no final adjudication of the first negligence claim that would bar the second claim. Until there is a final judgment on the merits, appellant is free to proceed on both negligence claims.

C. False Imprisonment

Appellant includes in his second action a claim of false imprisonment, a matter not asserted in the initial lawsuit. Collateral estoppel operates only as to matters actually litigated, determined by, and essential to a previous judgment. In re Application of Hofstad to Register Title to Certain Land, 376 N.W.2d 698, 700 (Minn. App. 1985). Because appellant did not previously litigate any issues regarding false imprisonment, collateral estoppel will not bar a false imprisonment claim.

Unlike collateral estoppel, which bars the relitigation of issues actually and necessarily determined, res judicata extends to claims that might have been determined had they been asserted in the former action. Demers, 486 N.W.2d at 830. Although it can be argued that appellant could have asserted a claim of false imprisonment in the original lawsuit, the sine qua non of the res judicata bar is that there has been a final adjudication in the previous action. See Hauser, 263 N.W.2d at 807. That action is pending. Absent a final determination of that action res judicata will not bar a subsequent action with a new claim even though the claim could have been included in the former lawsuit.

D. Intentional Infliction of Emotional Distress

The district court determined in the first action that the jailer's conduct did not "meet the high standard necessary to sustain a claim for intentional infliction of emotional distress." Unlike the other claims in the suit, this claim was obviously dismissed on the merits. Minnesota does not require mutuality of parties for the application of defensive collateral estoppel. Aufderhar, 452 N.W.2d at 652. Minnesota instead focuses upon whether the party sought to be estopped was the claimant on the issue in both proceedings. Id. If so,

[t]he requirement of mutuality must yield to public policy. To hold otherwise would be to allow repeated litigation of identical questions, expressly adjudicated, and to allow a litigant having lost on a question of fact to re-open and re-try all the old issues each time he can obtain a new adversary not in privity with his former one.

Gammel v. Ernst & Ernst, 245 Minn. 249, 257, 72 N.W.2d 364, 369 (1955).

Appellant here is the claimant in both cases. He had a full and fair opportunity to litigate his claim of intentional infliction of emotional distress, and the district court determined that, on appellant's alleged facts, the claim did not satisfy the requisite legal standard. Because the elements of collateral estoppel have been met, appellant is estopped from maintaining the intentional infliction claim in the second action.

The district court's dismissal of the claim of intentional infliction of emotional distress is affirmed, and its dismissals of the civil rights, gross negligence, and false imprisonment claims are reversed.

Affirmed in part and reversed in part.