Although it is far from clear whether the plaintiff in this
case can prevail on the merits of his claims, his complaint is
sufficient to survive motions to dismiss or for summary
12
judgment. Prison inmate Leonard Rollon Crawford-El alleges that prison
official Patricia Britton unconstitutionally retaliated against
him for exercising his First Amendment rights by deliberately
retaining and then misdelivering his personal items during a
series of prison transfers. Far from simply appending a claim of
unconstitutional motivation to an otherwise questionable claim,
however, Crawford-El's complaint, as recounted by the District
Court, includes several specific factual allegations:
" Crawford-El alleges that Britton treated him worse than
other prisoners because she knew that when he had been in charge
of the law library at the Central Facility, he had helped other
prisoners prepare their Administrative Remedy Procedure grievance
forms or their appeals of disciplinary decisions. Crawford-El
had "a reputation for asserting legal rights and knowing the
administrative procedures for doing so," and that made Britton
hostile towards him. (Fourth Amended Complaint, at 6.)
" On April 20, 1986, The Washington Post published a
front-page article about jail overcrowding based on interviews
with Crawford-El. The next day, Britton chastised Crawford-El
for tricking her and for embarrassing her before her co-workers.
She threatened to make life hard for him in jail any way she
could. (Fourth Amended Complaint, at 12.)
" Britton stated on another occasion that prisoners like
Crawford-El "don't have any rights." (Fourth Amended Complaint,
at 15.)
" After the publication of a second Washington Post
article, which reported inmates' suspicions that "they were
handpicked for transfer [from the District of Columbia to the
State of Washington] because they were "jailhouse lawyers' "
troublemaking "writ-writers' who tied up the courts with
occasionally successful lawsuits against the prison system" and
quoted Crawford-El to that effect, Britton told another prison
official that
13
Crawford-El was a "legal troublemaker." (Fourth
Amended Complaint, at WW 16-17.) Crawford-El v. Britton, 844 F. Supp. 795, 802-03 (D.D.C. 1994).
Based on these and other allegations, the trial judge
concluded that a jury "might reasonably infer ... that Britton
diverted and withheld Crawford-El's property out of an
unconstitutional desire to retaliate against a "legal
troublemaker.' " Id. at 803. Thus, an experienced member of our
District Court found that, under the Federal Rules of Civil
Procedure, there is a legitimate case to go to the jury. Yet,
under the evidentiary standard proposed by several of my
colleagues, Crawford-El's allegations would not be sufficient
even to proceed to discovery. Nothing in the Supreme Court's
qualified immunity jurisprudence justifies such a result;
indeed, it would appear that Crawford-El's complaint would
survive a motion for summary judgment under the rules adopted by
every other court of appeals in the nation.
CONCLUSION
Given the lack of any Supreme Court decision indicating that
a "clear and convincing" standard can or should be invented by
judges and overlaid onto the Federal Rules of Civil Procedure,
the result proposed by the judges who view this case differently
suggests an extraordinary use of judicial authority. One would
have thought that the outcome they propose would be anathema to
judges who advocate a philosophy of judicial restraint,
particularly when the more prudent course is to insist on a firm
application of the Federal Rules until such a time as the Supreme
Court commands us to do otherwise, or an amendment is made either
to the Federal Rules or to section 1983 itself. "[J]ust as
masons building a cathedral should not supplant the architect,
even though both are creating a work of art, a judge should not
supplant the politician or administrator though all are seeking
sound governance." Stephen F. Williams, The Roots of Deference,
100 YALE L.J. 1103, 1111 (1991); see also, e.g., Laurence H.
Silberman, Chevron " The Intersection of Law & Policy, 58
14
GEO.
WASH. L. REV. 821, 821-22 (1990) ("decr[ying] the extraordinary
expansion of judicial power in the latter half of this century,"
and observing that the one concept that most distinguishes those
who advocate "judicial restraint" is "avoidance of judicial
policy making").
The simple truth here is that Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
its progeny (not to mention the Civil Rights Act of 1871), remain
the law of the land and control the actions of this court. And,
as Justice Kennedy recently pointed out, courts must be cautious
about "devising limitations to a remedial statute, enacted by
Congress, which "on its face does not provide for any
immunities.' " Wyatt, 504 U.S. at 171 (Kennedy, J., concurring)
(quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)). I
therefore find it incredible that some members of this court seek
to create new rules that would effectively render impossible all
Bivens-type civil rights actions that turn on the intent of
government officials. Until the Supreme Court finally resolves
the question once and for all, it appears that this circuit might
sit alone among all the federal courts of appeal in its approach
to this issue.
Citizens of the United States who legitimately use the legal
system to render representatives of their government accountable
for unconstitutional action should not find the courthouse door
in our nation's capital slammed shut. I hope that will not be
the consequence of today's decision.
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