govinfo:USCOURTS-wiwd-3_25-cv-00346-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF WISCONSIN 
  
 
JOSHUA THOMAS, 
 
Plaintiff, 
v. 
 
MICHAEL ABRAHAM, 
 
Defendant. 
OPINION and ORDER 
 
25-cv-346-jdp 
 
 
Plaintiff Joshua Thomas, withou t counsel, asserts that an officer with the La Crosse 
Police Department, defendant Michael Abraha m, arrested him without probable cause. 
The court has screened the case and allowed Thomas to proceed on a false-arrest claim. Dkt. 5. 
Defendant Abraham moves to dismiss Thomas’s complaint under Federal Rule of Civil 
Procedure 12(b)(6). Dkt. 10. Abraham contends th at the doctrine of issue preclusion bars 
Thomas’s false-arrest claim because the state court already determined in a preliminary hearing 
that there was probable cause to arrest Thomas.  
Whether issue preclusion applie s is a matter of state law. Agha v. Uber Techs., Inc. , 
148 F.4th 910, 914 (7th Cir. 2025); see 28 U.S.C. § 1738. The basic rule is that the challenged 
issue must have been actually litigated in the prior action, and resolving the issue must have 
been essential to the court’s judgment. Dostal v. Strand, 2023 WI 6, ¶ 23, 405 Wis. 2d 572, 
984 N.W.2d 382. Wisconsin courts also consider whether applying issue preclusion would be 
fundamentally fair given the circumstances of the case. Mrozek v. Intra Fin. Corp., 2005 WI 73, 
¶ 17, 281 Wis. 2d 448, 699 N.W.2d 54. 
It is usually improper to dismiss a comp laint on issue preclusion grounds because 
complaints do not need to anticipate affirmative defenses, U.S. Gypsum Co. v. Ind. Gas Co., Inc., 
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350 F.3d 623, 626 (7th Cir. 2003), and issue preclusion is an affirmative defense, Fed. R. Civ. 
P. 8(c).1 Affirmative defenses are not well-suited for motions to dismiss because they “typically 
turn on facts not before the court at that stage in the proceedings.” Brownmark Films, LLC v. 
Comedy Partners , 682 F.3d 687, 690 (7th Cir. 2012). Conse quently, dismissing a case on 
affirmative defense grounds is appropriate “only when the factual allegations in the complaint 
unambiguously establish all the elements of the defense.” Hyson USA, Inc. v. Hyson 2U, Ltd. , 
821 F.3d 935, 939 (7th Cir. 2016).  
In his complaint, Thomas alleges that Abraham “did not check for or have any evidence” 
t o  a r r e s t  h i m .  D k t .  1 ,  a t  2 .  T h o m a s  a l s o  alleges that “multiple witnesses” stated that he 
intervened to break up a fight between the alleged victim and her boyfriend. Id. at 3. It is 
reasonable to infer from these allegations that Abraham did not have evidence to arrest Thomas 
and did not investigate the incident. As  I explained in my screening order, see Dkt. 5, at 3–4, 
Thomas’s allegations suggest that Abraham arrested him in bad faith. 
Abraham argues that Thomas’s false-arrest claim is barred by issu e preclusion because 
the state court in the underlying criminal case held a preliminary hearing and determined that 
Abraham had probable cause to arrest Thomas. 2 But a state court’s probable-cause 
 
1 Issue preclusion is more properly raised in  a motion for judgment on the pleadings under 
Rule 12(c) or a motion for summary judgment under Rule 56. Mains v. Citibank, N.A., 852 F.3d 
669, 678 (7th Cir. 2017). 
2 I generally cannot consider matters outside of the complaint on a motion to dismiss without 
treating the motion as one for summary judgme nt. Fed. R. Civ. P. 12(d). But there is an 
exception: I may take judicial notice of facts that are “not subject to reasonable dispute” 
because they come from “sources whose accuracy  cannot reasonably be questioned,” such as 
facts from state-court records. Fed. R. Evid. 201(b); see Olson v. Champaign Cnty. , 784 F.3d 
1093, 1097 n.1 (7th Cir. 2015). Abraham attaches to his motion to dismiss a copy of the 
certified transcript of the state-court preliminary hearing, Dkt. 10, Ex. 2, which confirms that 
the state court found probable cause to believe that Thomas had committed a felony. 
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determination does not always pr eclude a plaintiff from revisi ting the issue by bringing a 
false-arrest claim in federal court. A pair of Seventh Circuit cases guides the court’s resolution 
of Abraham’s argument. 
In Guenther v. Holmgreen, the court of appeals held that the plaintiff’s false-arrest claim 
was barred by issue preclusion because the plaintiff’s counsel already li tigated the sufficiency 
and integrity of the evidence supporting probable cause during the plaintiff’s preliminary 
hearing. 738 F.2d 879, 884 (1984). The plainti ff’s counsel attacked the sufficiency of the 
evidence by “attempting to show that the events [the officer] relied on to establish probable 
cause actually occurred after the arrest had taken place.” Id. And the plaintiff’s counsel attacked 
the integrity of the evidence by cross-examinin g the officer and by calling a witness to rebut 
the officer’s version of the events. Id. Because the state court determined that the officer had 
probable cause to arrest the plaintiff after the plaintiff attacked the sufficiency and integrity of 
the evidence, the state court’s probable-cause  determination necessarily depended on its 
finding that the officer was telling the truth and acted in good faith. Id. at 885. So the existence 
of probable cause was fully litigated to resolution and issue preclusion applied. 
In Bailey v. Andrews, the court of appeals held that the plaintiff’s false-arrest claim was 
not barred by issue preclusion, even though the state court determined that the officer had 
probable cause to arrest the plaintiff. 811 F. 2d 366, 370 (1987). The court reasoned that the 
preliminary hearing in Bailey was “designed to evaluate the su fficiency, but not the integrity, 
of the evidence against Bailey.” Id.  at 369. As a result, the i ssue underlying the plaintiff’s 
false-arrest claim in federal court—whether the officer arrested the plaintiff in bad faith—was 
not the same issue that was litigated in the plaintiff’s state-court preliminary hearing. Id. at 370. 
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So the existence of probable cause was not fully litigated to resolution and issue preclusion did 
not apply. 
Whether Thomas’s false-arrest claim is barred by issue preclusion is a close call. 
The state-court judge allowed Thomas to cr oss-examine Abraham and offered Thomas the 
opportunity to present witnesses to re but Abraham’s version of the events, see Dkt. 10, Ex. 2, 
a t  9 – 2 0 ,  w h i c h  s u g g e s t s  t h a t  t h i s  c a s e  i s  a k i n  t o  Guenther where probable cause was fully 
litigated. But in this case the state-court judge repeatedly told Thomas that credibility is 
“not an issue at a preliminary hearing,” e.g., id. at 10, which suggests that the integrity of the 
evidence was not actually litigated during Thomas’s preliminary hearing, making this case more 
like Bailey. 
On his motion to dismiss, it is Abraham’s burden to show that the factual allegations 
in Thomas’s complaint (and the facts subject to  judicial notice) unambiguously establish that 
he is precluded from relitigati ng the issue of whether Abraham had probable cause to arrest 
him. Abraham has not shown that the issue of whether his arrest of Thomas was in bad faith 
was actually and fully litigated because the state court judge declined to consider the credibility 
of the testimony about probable cause. Thomas challenges the credibility of that testimony in 
this case, and the state court finding of probable cause does not preclude that challenge.  
  
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ORDER 
IT IS ORDERED that: defendant Michael Abra ham’s motion to dismiss, Dkt. 10, is 
DENIED. 
Entered June 18, 2026. 
BY THE COURT: 
 
/s/ 
________________________________________ 
JAMES D. PETERSON 
District Judge 
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