Judge Williams overlooks the point; Judge Silberman faces
up to it but reminds us that "personal damage suits are
2
decidedly
not the only disincentive" to unconstitutional conduct. The
federal statutes that he cites, however, do not justify the
balance that he or Judge Williams would strike between the
interests of injured plaintiffs and the public interest in
avoiding unfounded litigation against government officials.
First, those statutes do not reach all the motive-based
constitutional torts for which a plaintiff can seek redress under
Bivens or § 1983. Second, a plaintiff who seeks damages against
a public official under any of the cited statutes has no greater
access to discovery than does a plaintiff who sues for the same
remedy under Bivens or § 1983; qualified immunity shields the
public official from personal damage liability regardless of the
particular type of action brought against him. See Todd v. Hawk,
72 F.3d 443, 445 n.7 (5th Cir. 1995) ("Racial discrimination
claims brought under § 1981 are subject to the defense of
qualified immunity"); Hobson v. Wilson, 737 F.2d 1, 19 (D.C.
Cir. 1994) ("section 1985(3) encompasses actions against federal
officers, subject, of course, to considerations of qualified
immunity").
In order to obtain any other remedy or impose any sanction, the
plaintiff or prosecutor respectively will have to show that some
public official acted with a prohibited motive - racial,
religious, or gender discrimination, retaliation for protected
speech, or what have you. Although the public official will be
shielded from personal liability and, perhaps, from the cost of
retaining counsel, he will not be shielded from the demands upon
his time, the risk of injury to his reputation, the emotional
distress likely to attend an adversarial inquiry into whether his
actions were basely motivated, or the possibility of unpleasant
consequences apart from the litigation (such as losing his job)
if the inquiry shows that his actions were improperly motivated. Effective deterrence of unconstitutional conduct depends unavoidably upon exposing public officials to some risks that might also chill them in the proper exercise of their descretion.
Therefore, that a particular rule, such as the one Judge
Silberman proposes, would leave in place some deterrent effect
because some types of cases might still be brought tells us
little about whether the rule strikes an appropriate balance
between our interest in deterring constitutional torts generally
3
and our interest in reducing the social costs of litigation
against public officials. Judge Silberman suggests, based upon
the low success-rate of Bivens and § 1983 actions, that there is
not much out there to deter. He does not consider, however, that
the low-success rate is, in part, a result of the qualified
immunity doctrine and other legal rules.
We cannot know how much
additional unconstitutional mischief the rules proposed by Judges
Silberman and Williams would elicit, but that seems reason enough
to proceed with more caution than either of them displays. A
more prudent and discriminating approach - one that may preserve
the desired deterrent while still lessening the burden now placed
upon defendant public officials - would be to provide more
guidance than we have heretofore given to district judges faced
with the task of balancing, case by case, the competing values
accommodated by the institution of qualified immunity. We could
then rely upon them, as we normally do, to manage the
fact-finding process that my colleagues would truncate with clear
but Draconian rules.
When a defendant files a motion for summary judgment and the plaintiff argues that he needs discovery in order to withstand
the motion, Rule 56(f) invests the district court with discretion
to (1) deny the motion for summary judgment, (2) continue the
motion pending discovery, or (3) "make such other order as is
just." In a case involving qualified immunity, the district
court abuses this discretion if it fails duly to consider not
only the competing interests of the parties " as in any civil
litigation " but also the social costs associated with discovery
had against a government official.
Hence, while this court has acknowledged that "in the
mine-run of cases" summary judgment is generally inappropriate
until all discovery has been completed, Martin, 812 F.2d at 1436,
we have also recognized that "creditable pleas of official
immunity remove cases from the mine-run category," id. at
1436-37. Although we now reject then-Judge Ruth Bader Ginsburg's
elevation of direct over circumstantial evidence, see id. at
1435, we ought not forget her description of our task in a case
such as this " to "leav[e] some space for
4
discovery" while "minimiz[ing] the burdens imposed upon government officials."
Id. at 1437.
In Martin we required the plaintiff to make factual
allegations sufficiently precise to enable the district court to
"employ with particular care and sensibility [its] large
authority to exercise control over discovery." Id. at 1437. We
expected that district courts would protect government officials
from "unnecessary involvement in [ ] litigation" by "permit[ting]
particularized interrogation of the defendants for the
circumscribed purpose of ascertaining whether there is any
substance" to the plaintiff's specific factual allegations. Id.
at 1438.
Rather than looking further back, as Chief Judge Edwards
does, to the concern expressed in Hobson, 737 F.2d at 30-31, that
"in some circumstances plaintiffs are able to paint only with a
very broad and speculative brush at the pre-discovery stage," we
should go forward along the path to which Justice Ginsburg
pointed us in Martin. Consideration of the social costs
associated with litigation against public officials (which, as
Harlow teaches, weighs heavily against discovery) should
constrain to this extent the district court's discretion to
continue a summary judgment motion pending discovery: If, when
the defendant moves for summary judgment, the plaintiff cannot
present evidence that would support a jury in finding that the
defendant acted with an unconstitutional motive, then the
district court should grant the motion for summary judgment
unless the plaintiff can establish, based upon such evidence as
he may have without the benefit of discovery and any facts to
which he can credibly attest, a reasonable likelihood that he
would discover evidence sufficient to support his specific
factual allegations regarding the defendant's motive.
Chief Judge Edwards too speaks of requiring a "reasonable
likelihood that additional discovery will uncover evidence to
buttress the claim," but that is not the same as requiring a
reasonable likelihood, based upon specific evidence within the
plaintiff's command, that discovery will uncover evidence
sufficient to sustain a jury finding in the plaintiff's favor.
5
Moreover, the Chief Judge's emphasis upon some plaintiffs'
ability to "paint only with a broad and speculative brush," and
upon the district court's almost unfettered discretion (in the
mine-run of cases, that is) to continue a summary judgment motion
pending discovery, suggests a substantial difference in our
expectations of the district court.
Permitting a plaintiff to pursue limited discovery only upon
showing that he has a reasonable likelihood of turning up
evidence that a jury could consider clear and convincing proof of
the defendant's unconstitutional motive would leave more space
for discovery than would Judge Williams or Judge Silberman, would
still protect the public from the costs of pointless discovery
against Government officials, and would not usurp the district
court's authority over the course of the litigation. Moreover, I
see no reason to doubt the district court's willingness or
ability to strike anew in each case the balance that underlies
the doctrine of qualified immunity. Indeed, a district judge,
whose experience with the management of discovery is far more
extensive than ours, whose familiarity with the case and with the
litigants is more immediate, and whose tools for controlling the
course of litigation are more subtle and precise, is eminently
qualified for this task.
II. Application to this Case
I agree with my colleagues who conclude that Crawford-El
adequately alleged a violation of clearly established
constitutional law and that we must therefore remand this case to
the district court. See Williams Op. at 23-25. But if on remand Britton moves for summary
judgment prior to discovery and Crawford-El cannot substantially
supplement the record now before us, then it would be an abuse of
discretion for the district court to deny the motion or to
continue it pending discovery.
A. The Summary Judgment Standard
In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56
(1986), the Supreme Court explained how a district court should
determine whether a plaintiff has submitted evidence sufficient
to withstand a summary judgment motion when the
6
plaintiff must
prove an element of his claim " in that libel case it was actual
malice " by clear and convincing evidence:
[T]here is no genuine issue if the evidence presented in the
opposing affidavits is of insufficient caliber or quantity to
allow a rational finder of fact to find actual malice by clear
and convincing evidence.
Thus, in ruling on a motion for summary judgment, the judge
must view the evidence presented through the prism of the
substantive evidentiary burden.... It makes no sense to say that
a jury could reasonably find for either party without some
benchmark as to what standards govern its deliberations and
within what boundaries its ultimate decision must fall, and these
standards and boundaries are in fact provided by the applicable
evidentiary standards.
Our holding that the clear-and- convincing standard of proof
should be taken into account in ruling on summary judgment
motions does not denigrate the role of the jury. It by no means
authorizes trial on affidavits. Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge, whether he is ruling on a motion for summary judgment or
for a directed verdict. The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor....
In sum, we conclude that the determination of whether a
given factual dispute requires submission to a jury must be
guided by the substantive evidentiary standards that apply to the
case.... Thus, where the factual dispute concerns actual malice,
clearly a material issue in a New York Times case, the
appropriate summary judgment question will be whether the
evidence in the record could support a reasonable jury finding
either that the plaintiff has shown actual malice by clear and
convincing evidence or that the plaintiff has not.
Thus, although the plaintiff is entitled to have all rational
inferences drawn in his favor on intermediate facts - such as
7
hostility, in this case - those facts must add up to clear and
convincing evidence of the ultimate facts that he must prove "
here, that Britton (1) in order to retaliate against Crawford-El
for exercising his constitutional rights (2) knowingly gave
Crawford-El's legal papers to his brother-in-law.
B. Crawford-El's Complaint
Let us now look at Crawford-El's sworn declarations to see
whether they are sufficient to withstand Britton's no doubt
imminent motion for summary judgment. In paragraph 6 of his
fourth amended complaint, Crawford-El declares that
[1] Ms. Britton persistently displayed toward prisoners a
cavalier attitude " manifesting a view that prisoners were
beneath her, disentitled to dignity, and unworthy of civil
treatment. [2] Ms. Britton was hostile to plaintiff, in
particular, because she knew plaintiff ... had been in charge of
the law library [and] had helped many prisoners prepare ...
grievance forms or appeals of disciplinary actions, and had a
reputation for asserting legal rights and knowing the
administrative procedures for doing so. [3] Ms. Britton deemed
plaintiff "too big for his britches."
The first sentence establishes merely that Britton did not like
prisoners generally; it says nothing specific about her alleged
unconstitutional motive. The second sentence states a fact about
Britton's state of mind, to which Crawford-El may not testify
without laying a foundation. See Fed.R.Civ.Pro. 56(e)
("affidavits shall be made on personal knowledge"); and
Fed.R.Evid. 602 (accord) and 701 ("testimony in the form of
opinions or inferences is limited to those opinions or inferences
which are ... rationally based on the perception of the
witness"). The third sentence, provided without context, does
not tell us why Britton said that Crawford-El was "too big for
his britches" or even whether the statement manifests hostility.
In paragraph 9 of the complaint, Crawford-El declares that
Ms. Britton was among those who were hostile to the Inmate
Grievance Committee and to plaintiff's efforts to seek redress of
prisoner grievances. On one occasion
8
when plaintiff was typing
[Housing and Adjustment] Board papers in the Q Block office, Ms.
Britton came in and said to Cpt. (then Lt.) Brummell in a caustic
manner that she (Cpt. Brummell) should watch out for plaintiff
and make sure he wasn't using the typewriter to write up
[grievance forms] or lawsuits. As Ms. Britton said this she
stood over plaintiff to see what he was typing.
Britton's concern, even if caustically expressed, that
Crawford-El not conduct his jailhouse law practice when he was
supposed to be performing administrative work is not evidence of
hostility to Crawford-El's efforts to seek redress of prisoner
grievances.
In paragraph 12 of the complaint, Crawford-El declares that
The day after the [first Washington Post] article was published
[April 21, 1986], defendant Britton ordered plaintiff into her
office. Corporal Barrett, then Officer in Charge of Dorm K2,
escorted plaintiff there. Ms. Britton was visibly upset. After
ignoring plaintiff for a considerable period, she asked him if he
had arranged the visit by the reporter. When plaintiff said that
he had, she asked him how he had done it. Plaintiff showed her
the visitor application naming the reporters invited and their
address and pointed out that Ms. Britton had approved the
application. [7] Ms. Britton became enraged and accused
plaintiff of tricking her. Plaintiff denied tricking her. [9]
Ms. Britton said plaintiff had embarrassed her before her
coworkers by having the reporter come. Ms. Britton made a
telephone call trying to get plaintiff placed in restrictive
confinement in Q Block. [11] When this effort failed she said
that so long as plaintiff was incarcerated she was going to do
everything she had to do to make it as hard for him as possible.
A few days later Ms. Britton had plaintiff transferred to the
Department's Central Facility.
9
Crawford-El's statement (in the 7th sentence) that Britton
"became enraged" when she thought she had been duped by
Crawford-El does not help his case. On the contrary, that she
was angered at being tricked " Crawford-El has no constitutional
right to trick his keeper " provides a qualifying context for
Crawford-El's most significant declarations: that Britton said
that she was embarrassed by the article and that she would make
life hard for Crawford-El.
Judge Williams brushes the allegations aside as
"self-serving." Self-serving opinions, inferences, and
conclusions without a basis in perceptible fact may not be
sufficient to withstand a summary judgment motion even under the
mere preponderance standard; but neither is summary judgment "a
procedure for resolving a swearing contest" over concrete facts,
see Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992)
(Posner, J.) (§ 1983 action against prison officials), should
such a contest arise " Britton has not contradicted Crawford-El's
declaration with her own sworn statement. Recall Anderson, in
which the Supreme Court instructed, again on a summary judgment
motion in a case where the plaintiff must prove an element by
clear and convincing evidence, that "[c]redibility determinations
... are jury functions, not those of a judge," and that "[t]he
evidence of the non-movant is to be believed."
Suppose Britton (or Corporal Barrett) were to corroborate
the alleged threat, however; without more it would not clearly
and convincingly indicate that Britton's decision to deliver
Crawford-El's property to his brother-in-law was
unconstitutionally motivated. Britton allegedly made the threat
in a moment of anger in April 1986; she delivered Crawford-El's
property to his brother-in-law in September 1989, at the same
time (according to Crawford-El's own declaration) that she was
calling the families of other prisoners, who, like Crawford-El,
were being sent to the federal prison in Petersburg, Virginia and
threatening to discard the prisoner's property if a family member
did not come to collect it.
10
In paragraph 15 of the complaint, Crawford-El declares that
[During a transfer to the Spokane County Jail in Washington
State] Correctional Officer Ballard, with Ms. Britton's
knowledge, made a videotape of [ ] prisoners [including
Crawford-El] while they were handcuffed, leg-shackled, and
chained about their waists. Plaintiff and several others
protested to Ms. Britton that the videotaping violated thir
privacy rights. Plaintiff said to her that the videotaping could
not be done without the prisoners' written authorization. Ms.
Britton responded, "You're a prisoner, you don't have any
rights."
What does this show? That Britton was generally insensitive to
the constitutional rights of prisoners? Maybe. More likely it
shows simply that she did not believe that a prisoner has a right
not to be videotaped. In either event, it is not very probative
on the question whether (nine months later) she retaliated
against Crawford-El for exercising his first amendment rights.
In paragraph 17 of his complaint, Crawford-El alleges that
shortly after publication of a second Washington Post article
(December 1988) in which he was quoted on the topic of jailhouse
lawyers, Britton told one Captain Manning of the Spokane County
Jail (to which Crawford-El had been transferred) that Crawford-El
was a "legal troublemaker." As Judge Williams observes,
Britton's describing Crawford-El as a "legal troublemaker" is
scant evidence of hostility. Indeed, viewed as an expression of
hostility it is too mild to support the inference that she bore a
grudge against Crawford-El nine months later when she gave his
legal papers to his brother-in-law.
Finally, Crawford-El alleges that on August 18, 1989, when
he and other prisoners told Britton that property left in her
possession included important legal material, she "smirked and
spoke in a cavalier manner," but "informed [Crawford-El] that she
understood his need both for his personal property and his legal
material and that she would personally
11
see to it that [he] would
get them." Crawford-El alleges also that upon arriving at the
federal prison in Petersburg, Virginia several other D.C.
prisoners informed him that Britton had asked their families to
pick up their property or she would throw it away. Crawford-El
offers no evidence indicating that Britton bore an
unconstitutional animus toward any of these other prisoners; on
the contrary, that she apparently treated the property of several
prisoners in the same manner jibes with her sworn declaration
that she was motivated by what she understood to be the policy of
the Federal Bureau of Prisons.
In sum, even if Crawford-El were by discovery to get
corroboration of every sworn declaration in his fourth amended
complaint, he would not have evidence that would clearly and
convincingly indicate to a reasonable jury what he must prove.
At best, his evidence would establish that in a moment of anger
in April 1986, Britton threatened to retaliate against him for
embarrassing her by making statements to a Washington Post
reporter, and that as recently as December 1988 she resented his
jailhouse lawyering. Crawford-El points to no evidence that
Britton did anything to make good on the 1986 threat before she
delivered his legal papers to his brother-in-law in September
1989, nor to anything suggesting that he could discover evidence
of such rabid hostility toward him that it would constitute
clear-and-convincing circumstantial evidence that Britton was
retaliating against Crawford-El by treating him as she treated
other similarly situated prisoners.
Under the clear-and-convincing evidence standard, no
reasonable jury could find on these facts that Britton acted with
an unconstitutional motive in 1989 and Crawford-El has not
offered a reason to believe that more evidence can be discovered.
If on remand he has nothing more significant to offer, then the
plaintiff should be denied discovery and the defendant's motion
for summary judgment should be granted.
12
Henderson Opinion
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