Appellant Steven DeWitt appeals from an order of the Superior Court granting summary judgment in favor of defendants/appellees (the District of Columbia and four of its Metropolitan Police Department detectives) on DeWitt’s complaint asserting common law claims of false imprisonment and malicious prosecution and a claim under the Unjust Imprisonment Act *294 (the “UIA”), D.C.Code §§ 2-121 to -424 (2001). For the reasons discussed below, we affirm.
I. Background
A jury convicted DeWitt of second-degree murder and weapons offenses in connection with the May 13, 1991, shooting of Paul Ridley, and this court affirmed the conviction in an October 1, 1993, Memorandum Opinion and Judgment. In 2004, after having served over thirteen years of a fifteen-years-to-life sentence, DeWitt filed a motion under the Innocence Protection Act (the “IPA”), D.C.Code § 22-4135 (2001), to set aside his conviction. After a lengthy hearing, the Honorable Franklin Burgess, who had also presided over De-Witt’s criminal trial, issued a 94-page memorandum opinion dated December 17, 2004, in which he detailed new evidence that an individual named Samuel Carson shot Ridley, and in which he described and analyzed numerous weaknesses and inconsistencies in the government’s case against DeWitt. Judge Burgess vacated DeWitt’s conviction and ordered a new trial, finding that it was “more likely than not that DeWitt is actually innocent,” that “the evidence favoring Carson’s guilt is stronger than that favoring DeWitt’s,” and that it was “more plausible to believe that Carson committed the killing.” Judge Burgess stated, however, that he could not find by “clear and convincing evidence” that De-Witt was innocent. 1 After the United States Attorney declined to re-prosecute DeWitt, he was released from prison on December 24, 2004.
In June 2005, DeWitt gave notice to the Mayor of the District of Columbia of his intent to file a civil suit. In December 2005, DeWitt filed suit against the District and four police detectives 2 (together, the “District defendants”), asserting his false imprisonment, malicious prosecution, and UIA claims. After the trial court (the Honorable Judith Retchin) initially denied a series of dispositive motions brought by the defendants, and after the close of discovery, the court (the Honorable Robert Richter) eventually granted the District’s renewed motion for summary judgment, 3 reasoning (1) that the false imprisonment claim against the District of Columbia was barred because of DeWitt’s failure to give timely notice under D.C.Code § 12-309; 4 (2) that neither the false imprisonment claim nor the malicious prosecution claim could succeed because there was probable cause for DeWitt’s arrest and prosecution; and (3) that because of Judge Burgess’s ruling, collateral estoppel applied to preclude DeWitt from re-litigating the issue of whether, by clear and convincing evidence, he was innocent of the offenses of which he was convicted.
DeWitt challenges each of those three *295 rulings, our review of which is de novo. 5 For the reasons discussed below, we agree with the last two rulings. Because our conclusion as to them enables us to affirm the grant of summary judgment, we need not discuss the first of the trial court’s rulings. We therefore leave for another day the issue of whether (as DeWitt argues) long-term false imprisonment constitutes a continuous infliction of injury, such that giving notice of the claim within six months after any date on which the imprisonment continued constitutes notice “within six months after the injury ... was sustained” for the purposes of § 12-309. 6
II. The False Imprisonment and Malicious Prosecution Claims
“The gist of any complaint for ... false imprisonment is an unlawful detention .... ”
Clarke v. District of Columbia,
“The existence of probable cause will likewise defeat a claim for malicious prosecution....”
Gabrou,
The District defendants argue that summary judgment on DeWitt’s false imprisonment and malicious prosecution claims was warranted because “[pjrobable cause to arrest and imprison DeWitt until trial and to prosecute him is established by DeWitt’s conviction, even though the conviction was later set aside.” The applicable principle, however, is that “a prior conviction, although set aside or reversed and followed by an acquittal, is conclusive evidence of the existence of probable cause,
unless the conviction was procured by fraud, perjury or other corrupt means.” Bumphus v. Smith,
Having reviewed the record, we agree with Judge Richter’s conclusion, in his Order Granting Defendants’ Motion for Summary Judgment, that the defendants “unquestionably had probable cause” to arrest and detain DeWitt and that no reasonable finder of fact “could find that [they] lacked either probable cause or a reasonable belief in probable cause.” As Judge Burgess’s lengthy evidentiary summary recounted, two days after the shooting, when Detective Alexander Shepard showed eyewitness Rufus Pace a photo array, Pace selected DeWitt’s photograph and one other in the photo array as resembling the shooter. 9 On May 23, 1991, Pace selected DeWitt from a line-up. 10 On May 15, 1991, eyewitness Mildred Greene, the cashier at the gas station where Ridley was shot (who testified at trial that she looked “right into [the] face” of the shooter), picked DeWitt’s photo from a photo array. Greene also made an in-court identification of DeWitt as the shooter. And, when officers arrived at the scene of the shooting, they were informed by witnesses that the shooter was a black male who drove a red, two-door Acura bearing temporary tags. DeWitt fit that description and owned a red Acura with temporary tags, facts that Judge Burgess aptly characterized as “important corroborating evidence of [DeWitt’s] guilt.” Judge Burgess *298 found that in light of all the foregoing evidence (and additional evidence that we need not discuss), “[tjhere exist[ed] too much evidence indicating DeWitt’s guilt” for him to find by clear and convincing evidence that DeWitt is innocent. That same “too much evidence” provided probable cause for DeWitt’s detention and prosecution. 11
Moreover, we see no evidence in the record (and DeWitt points to none) that his conviction was maliciously sought or that defendants had a “primary purpose in instituting the proceeding other than that of bringing an offender to justice.”
Jarett,
III. The UIA Claim
The UIA provides that “[a]ny person unjustly convicted of and subsequently imprisoned for a criminal offense contained in the District of Columbia Code may present a claim for damages against the District of Columbia.” D.C.Code § 2-421. It further specifies that:
Any person bringing suit under § 2-421, must allege and prove:
(1) That his conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted, or on new trial or rehearing was found not guilty of such offense, as appears from the record or certificate of the court setting aside or reversing such conviction, or that he has been pardoned upon the stated ground of innocence and unjust conviction; and
(2) That, based upon clear and convincing evidence, he did not commit any of the acts charged or his acts or omissions in connection with such charge constituted no offense against the United States or the District of Columbia the maximum penalty for which would equal or exceed the imprisonment served and he did not, by his misconduct, cause or bring about his own prosecution.
D.C.Code § 2^22.
By contrast, the IPA provides that “[a] person convicted of a criminal offense in the Superior Court of the District of Columbia may move the court to vacate the conviction or to grant a new trial on grounds of actual innocence based on new evidence.” D.C.Code § 22-4135(a). “Un *299 less the motion and files and records of the case conclusively show that the movant is entitled to no relief,” the “movant shall be entitled to invoke the processes of discovery available under Superior Court Rules of Criminal Procedure or Civil Procedure, or elsewhere in the usages and principles of law if, and to the extent that, the judge, in the exercise of the judge’s discretion and for good cause shown, grants leave to do so[.]” Id. § 22^135(e)(l), (4). At the conclusion of a hearing on the motion, if “the court concludes that it is more likely than not that the movant is actually innocent of the crime, the court shall grant a new trial.” Id. § 22 — 4135(g)(2). If, however, “the court concludes by clear and convincing evidence that the movant is actually innocent of the crime, the court shall vacate the conviction and dismiss the relevant count with prejudice.” Id. § 22-4135(g)(3).
DeWitt contends that he satisfied the first prong of the UIA because Judge Burgess’s finding, pursuant to the IPA, that it was “more likely than not” that he was “actually innocent,” and the resultant reversal of his conviction, meant that his “conviction has been reversed or set aside on the ground that he is not guilty of the offense of which he was convicted” within the meaning of § 2-422(1) of the UIA. In his summary judgment order, Judge Richter found that proposition “debatable,” but ruled that even if it were correct, DeWitt could not satisfy the requirements of § 2-422(2) of the UIA, which required him to allege and prove that, “based upon clear and convincing evidence, he did not commit any of the acts charged.” Judge Richter reasoned that Judge Burgess’s “explicit decision[] that there was not clear and convincing evidence of [DeWitt’s] innocence” precluded DeWitt from seeking to prove the contrary in this case. More specifically, Judge Richter found that De-Witt was collaterally estopped from re-litigating the issue of his innocence.
The question whether Judge Burgess’s finding by a preponderance of the evidence that DeWitt did not murder Ridley satisfied § 2-422(1) does not admit of an easy answer. We note, on the one hand, that this first prong of the UIA is “identical to the comparable provision in the [counterpart] federal law,” 28 U.S.C. § 2513.
See
D.C. Council, Report on Bill 3-251 at 6 (July 9,1980) (“Committee Report”).
12
Interpreting that identical federal provision, at least one appellate court has reasoned that a “conviction [that] was set aside ... on a ground that leaves room for the possibility that the petitioner in fact committed the offense with which he was charged” and thus for the possibility of a retrial (as Judge Burgess’s ruling under the IPA left open for DeWitt) would not satisfy the requirements of the statute.
Betts v. United States,
We conclude that, like the trial court, we need not decide definitively whether the first prong of the UIA is satisfied by reversal of a conviction and remand for a *300 new trial on the basis of a finding that a defendant more likely than not is innocent. We can assume without deciding that the first prong was satisfied because we agree with Judge Richter’s determination that, on the facts of this case, DeWitt was es-topped from attempting to prove that he satisfied the requirements of the second prong of the UIA. 13
Collateral estoppel, also known as “issue preclusion,” bars the re-litigation of issues determined in a prior action “where (1) the issue was actually litigated; (2) was determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the party; (4) under circumstances where the determination was essential to the judgment.”
Wilson v. Hart,
That leaves the third condition — whether, during the IPA hearing, DeWitt was denied “a full and fair opportunity for litigation.” It is uncontroverted that the hearing on DeWitt’s motion under the IPA involved several weeks of testimony and voluminous documentary evidence. De-Witt contends, however, that he was denied a full opportunity to litigate the issue of his actual innocence because he did not have the opportunity to cross-examine “crucial witnesses” (including Greene, who DeWitt asserts was a biased witness, and Pace) whose “grand jury testimony and FBI interviews were introduced into evidence by the Government over [DeWitt’s] objection.”
There are a number of reasons why we cannot agree that DeWitt was denied a full and fair opportunity to litigate the issue of his innocence. The first is, again, that DeWitt did not appeal Judge Burgess’s order, thereby forgoing the opportunity to challenge Judge Burgess’s rulings that the government would be permitted to introduce into evidence at the IPA hearing certain grand jury transcripts and FBI interview narratives to which DeWitt’s counsel objected. In addition, as defendants/appellees point out, in DeWitt’s opposition to their motion for summary judgment, DeWitt acknowledged that the grand jury testimony was admissible since both Greene (who “cannot be located”) and *301 Pace (who is dead) were unavailable to testify. Further, during the IPA proceedings, DeWitt’s counsel told the court that “[h]aving now been allowed to read the Rufus Pace [FBI] interview, ... I don’t object.” Counsel also withdrew her objection to the Greene FBI interview, which she “view[ed] ... as a wash.” Because we will not permit DeWitt to take a position in this appeal that is contrary to the position he took in the IPA proceeding, we reject his argument that his lack of opportunity to cross-examine Pace and Greene as to their grand jury testimony and FBI interviews means that he was denied a full and fair opportunity to litigate the issue of his actual innocence during the IPA hearing. 14
DeWitt also argues that he was “unfairly restricted to limited discovery during the IPA hearing.” However, as the defendants/appellees have argued, DeWitt does not assert that he made a request to Judge Burgess for leave to utilize “the processes of discovery available under Superior Court Rules of ... Civil Procedure,” a request the court would have had discretion to grant under D.C.Code § 22-4135(e)(4). DeWitt asserted in the trial court that it was “unrealistic to think that Judge Burgess would have entertained, much less granted, a request for a civil deposition of [the] witnesses” DeWitt wished to question, but we are unpersuaded by that seemingly unfounded contention.
We note, moreover, that (according to DeWitt’s brief and as reflected in the trial court record), DeWitt’s counsel took nine depositions (including those of the defendant detectives) before discovery closed in this case. Yet, we do not see in the record anything to indicate that after the close of discovery, DeWitt ever supplemented his response to the defendants’ interrogatories (which he initially answered in September 2008), in which he stated that he “ha[d] not learned any information through the civil discovery process in this case that was not previously available (or made available) or not known to him during his Innocence Protection Act proceedings.” 15 In addition, witnesses who were unavailable during the IPA proceedings because they were dead by that time (including Pace, the victim Ridley, Kyle Knight and Stevie Ellington) are, of course, still unavailable. As to other witnesses who DeWitt has acknowledged were in witness protection programs or had relocated, he has not explained how he would obtain their presence at trial against the District defendants, 16 or what he would expect the witnesses to add to the evidence that Judge Burgess heard. We highlight these points to note that DeWitt has not explained what opportunity, that he did not have during the IPA proceeding, a trial in this UIA case would give him to litigate successfully the issue of his innocence.
We conclude that the trial court correctly ruled that DeWitt was collaterally es-topped from re-litigating the issue of his innocence by clear and convincing evidence. Accordingly, the court did not err *302 in granting summary judgment to the District on DeWitt’s UIA claim.
For the foregoing reasons, the judgment of the Superior Court is
Affirmed.
Notes
. DeWitt did not appeal that ruling.
. The defendant/appellee detectives are Daniel Villars, Earl Delauder, John Davis, and Joseph Schwartz.
. We note that "denial of a motion for summary judgment by one judge [to whom a case was initially assigned] does not foreclose grant of summary judgment by another judge [who succeeds to the assignment]."
Guilford Transp. Indus. v. Wilner,
.In pertinent part, D.C.Code § 12-309 (2001) provides that "[a]n action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage.”
.
See Mamo v. Skvirsky,
.
But see George v. Dade,
. Judge Burgess did not reach the issue of whether Hines was beaten or whether Detective Villars gave false testimony before the grand jury. Judge Burgess did find that the
prosecutor
committed a
Brady
[v.
Maryland,
.
See also Harris v. Bornhorst,
. DeWitt argues that Pace selected photographs 1A and 1C from the police photo array, rather than DeWitt’s photo, which was IF in the array. However, Judge Burgess summarized the evidence as being that "Pace looked at all of the pictures twice and selected two, one of which was DeWitt’s.” Having failed to appeal from Judge Burgess's decision (and, in particular, having failed to challenge Judge Burgess’s evidentiary summary as not supported by the record), DeWitt is foreclosed from challenging that evidentiary summary now.
Cf. Montana v. United States,
. Although DeWitt argues that the line-up was suggestive (in that DeWitt was "forced” to wear a shirt similar to the one that Pace said the shooter wore), this court concluded, in the Memorandum Opinion and Judgment affirming DeWitt’s conviction, that Pace’s line-up identification of DeWitt "was reliable despite the suggestive lineup.” Pace also identified DeWitt at trial as the shooter.
DeWitt also highlights Pace’s description of the shooter as "stocky” and of a dark brown complexion and witness Ronnie Oliver's contrasting description of the shooter as "light” complected (whereas DeWitt was none of those things). However, inconsistencies in the testimony of the key witnesses "can be found in almost any [criminal matter].”
In re A.H.B.,
. DeWitt urges us to focus on the evidence, highlighted at the IPA hearing, that witnesses described the red Acura's temporary tags as being blue and white and as having either “825 or 829” as the last three numbers (whereas DeWitt’s Acura had red and white temporary tags and the tag number "818-461”), and that the prosecutor obtained information that someone had tried to frame De-Witt for Ridley's murder. Judge Burgess found, however, that the government’s evidence about whether police officers heard the tag number "818” from witnesses on the scene (instead of from a detective who had already stopped DeWitt’s car and seen that number on the license plate) was "ambiguous.” We cannot disagree with that characterization. Further, Judge Burgess’s order recounts that it was not until September 2001 that the prosecutor obtained information (from Kabria White) about a possible attempt to frame DeWitt.
. Similarly, the language of the second prong, D.C.Code § 2-422(2), "basically tracks the language of the federal unjust imprisonment statute.” Committee Report at 6, 7.
. DeWitt argues that the UIA "contemplate[s] that the issue of innocence will be litigated in a[t] least two proceedings” and affords a defendant an opportunity to "allege and prove " his actual innocence. Such an opportunity would be appropriate where the issue of actual innocence has not already been adjudicated (for example, where the UIA plaintiff is proceeding on the basis of having been found “not guilty” after a retrial in which the "beyond a reasonable doubt standard” was applied, but in which the finder of fact made no determination of actual innocence vel non). As we go on to discuss, it is not appropriate here.
. Cf. Brown v. United States,
. The record shows that as of the date of a January 29, 2010, pleading, DeWitt had not supplemented his interrogatory response.
. Our point is that even if (as DeWitt suggests) the United States Attorney’s Office had some ability to produce the witnesses during the IPA hearing, we see no reason to think that the District defendants have that same ability.