Brett C. Kimberlin v. Michael J. Quinlan

EDWARDS, and Before WILLIAMS HENDERSON, Judges. Circuit Opinion by for court filed Circuit Judge KAREN HENDERSON. LECRAFT Separate concurring opinion filed Judge F. Circuit STEPHEN WILLIAMS. Dissenting opinion Judge filed Circuit HARRY T. EDWARDS. HENDERSON,

KAREN LECRAFT Judge: Circuit Kimberlin, prison [1] Brett C. federal er, brought this action J. Michael Quinlan, Director Bureau of Prisons (Bureau), Miller, Jr., Loye W. Director of Department Public Affairs of Justice (Department), and the United States. The Miller, Quinlan complaint alleged and in their capacities, conspired individual to violate and in fact violated under and fifth to the first amendments United him, by denying respec States Constitution tively, process to the access and due addition, complaint charged law. In Quinlan in United States and his official ca pacity battery with the torts of assault violating III title Omnibus Act of Crime Control Safe Streets § 2511. district court 18 U.S.C. dis part1 missed the tort claims in and the fifth amendment claims left intact in toto but Loeb, Attorney, Dept, U.S. first amendment title III claims. Robert M. (D.D.C. Quinlan, Justice, appellants. F.Supp. 1 argued the cause for the Kimberlin v. 1991). Jay Stephens, Atty. Quinlan appeal B. were and Miller now On brief filed, Stuart M. district court’s of their motions the time briefs were denial assault, two, third, battery alleged missed the first not the 1. Kimberlin claims of but im- proper imprisonment. court dis- venue. and false The district Office, summary judgment Acting dismissal or on the first “the suggested Warden that a claims, alleging are entitled joint amendment up interview be set to reduce the strain qualified immunity liability on those on institution handling resources of each in- following claims.2 For the reasons we con separately.” terview June 1990 Letter appellants clude the are entitled to Rosenblatt, from Sabol to Howard T. Coun- and, accordingly, reverse the dis (Sabol Letter). sel for Brett C. Kimberlin trict court’s decision and remand with di Benefiel, Accordingly, R.C. executive assis- summary judgment rection to enter in their warden, tant to the El Reno told Kimberlin favor on the first amendment claims. up that “he ‘press would set a conference’ for 30,1990 evening giving 7:00.” Oct. circumstances rise to Kimber- Declara- (Kimberlin largely tion of Brett undisputed. lin’s claims are C. Kimberlin Some Decla- ration) Goodin, presiden time before the November at 2. Mark Deputy Press election, tial Secretary while incarcerated' at the El Bush/Quayle for the campaign, (El Reno Federal Correctional Institution impending press learned of the conference Reno) Reno, Oklahoma,3 in El an Kimberlin from a reporter telephoned say Miller to nounced to members of the news media that he was “amazed” that Kimberlin was to hold marijuana Quayle, he had sold to Dan press a conference. Deposition Oct. President, Republican candidate for Vice of Mark W. Goodin responded 73. Miller Quayle early when was law student “Well, not, going amazed or he’s to have one. Thursday 1970s. On November before It’s within his according to have one election, El NBC News contacted Reno regulations.” the rules and Id. requested authorities and an interview with Kimberlin. The Bureau’s Central Office in Late in the afternoon of November Washington, pressure under from Quinlan NBC press ordered the conference can- News, expedit directed that the interview because, it, put celled as he “[t]he Bureau’s ed order to occur before the election. policy permits on media access individual Accordingly, the interview was conducted on by inmates, media contacts as well as small Friday Thursday November 4.4 On either or press pools specialized circumstances, under Friday, Bush/Quayle an official at the Cam press but does not authorize inmate confer paign, having learned of the situation from Keating Quin ences.” Memorandum 3. sources, telephoned other the Bureau “for apparently lan policy maintained a consistent additional information” and was informed of against press by prisoners. conferences Quinlan the interview. Memorandum from Freiwald, Aaron Isolation Inmate with for II, Keating, Attorney to Francis A. Associate Claims, Times, Quayle Legal Dec. Memorandum) (Keating General at 4.5 (“Quinlan at 10 ... notes that he has not requests and, prison press allowed a

Other interview ac- conference since he followed Sabol, cording Carolyn Regional A. became director of Coun- the bureau late last Regional year.”).6 sel for the Bureau’s South Central summary judgment press pools 2. Denial representative motion based in which one from qualified immunity immediately participates, reviewable each news medium 28 C.F.R. by interlocutory (1988), appeal. Forsyth, § Mitchell v. press 540.64 but make no mention of 511, 524-30, 2806, 2814-18, conferences. While Kimberlin does not chal- (1985). L.Ed.2d 411 lenge regulations’ validity, he does assert that they prohibit press because do not conferences serving fifty-one year 3. Kimberlin is sentence logic he was entitled to hold one. The of Kim- drug- explosives-related charges. argument berlin’s sub silentio eludes us. That authorized; regulations which the authorize is ultimately 4. NBC News declined to broadcast the conversely what do not authorize is not story. Further, regulations provide authorized. "[a]ny questions meaning appli- as to the Quinlan 5. The exact date of the call is unclear as subpart cation of this are resolved the Di- 3rd,” placed "Friday, it on November misidenti- rector of the Bureau of Prisons.” 28 C.F.R. fying day either the of the week or the date. has, noted, 540.61(g). § Quinlan apparently as Keating Memorandum at 4. consistently exercised his discretion under this regulations procedures provision prohibit prisoner press

6. The Bureau’s set out conferences interviews, (1988), personal § 28 C.F.R. 540.63 and to limit inmates' access to the more Busb/Quayle cam- only a call from single p.m. on November 11:30 approximately At Kimberlin, the one regarding de- described paign placed administrative 4 Kimberlin during the above, Sabol Letter no time “[a]t direction. Quinlan’s tention order Thursday, detention November 3rd period The administrative from entire prison officials on Reno El anyone Day entered did through Election for deten- reason 4 recited November campaign ask or instruct Bush/Quayle the National Kimberlin “stated tion regard anything with Prisons to do Bureau of danger.” life is [sic] media news Keating Memorandum to this matter.” A con- Detention Order. November re- evening, Kimberlin was 7:30 that Around from Benefiel memorandum temporaneous investigation after an from detention leased Williams, the that J.D. file stated safety and “Kimber- threat to his revealed no Director, Regional South Central Bureau’s perceive he did specifically lin stated report- radio report that a telephoned to had Letter threat.” Sabol Kimberlin that informed Miller er 7, again Kimberlin was for his safeth On November and had fear retaliation “feared time, detention, 4,1988 this from placed Memorandum administrative November [sic].” Bureau, File. The a Bu- Investigative violating for according Benefiel to the R.C. “the eve- noted that prisoner further regulation prohibiting memorandum reau receiving call, ... had been ning lieutenant third-party telephone watch making a from compound inmates on the is, party information elec- placed to one who a call on if Kimberlin will snitch saying that were party. another No- tronically transfers it to Id. same to us.” Quale he will do the [sic] 7, Report; see 28 1988 Incident vember concluded: “Based memorandum Benefiel’s (“Third (1988) billing party § C.F.R. 540.104 being called a about his upon the information call to a third transfer of a and electronic Mr. telephone call from and the snitch According El permitted.”). party are not to insure the it was decided that Williams records, third-party call occurred Reno placed in safety he would [sic] inmates telephoned a 4 Kimberlin on November when until the matter detention administration through a him in turn connected friend who investigated by in- throughly [sic] could be lawyer for the call to a Democrat- conference evening vestigative staff. I directed 14, Disci- Nov. 1988 ic National Committee. placement.” Id. make such watch Hearing Report 2. The same plinary Officer was following day, while Kimberlin mak- that Kimberlin admitted records noted detention, received another Miller pro- knowing still it was but denied the call who “noted telephone call from Goodin guilty found Id. He was scribed. Tuesday to the elec- that the closer obvious: 14 and hearing on November violation after break, the more story were to that the tion day. Id. later that was released likely get, the better it was attention for a placed detention Kimberlin was at least some that it could have the chance 22, according to third time on December Bush-Quayle chances.” adverse effect on the Bureau, third-party again violating the Miller from 1989 Memorandum October prison prohibition. Local officials telephone (Miller May Memoran- it Concern to Whom on December 23 released Kimberlin however, dum) noted, at 4. Miller there “no guilty because found him any way to try did not [sic] “Goodwin intentional- specific [Kimberlin] handling Kim- department’s influence conference/third-party call.” Jan- ly placed a seeking himself denied Id. Goodin berlin.” 9,1989 Report. uary Incident This detention Miller, receiving any “reassurances” ap- days news after stories occurred a few speaking Deposition at or ever Goodin problems describing peared Bureau, anyone at the id. day after Kimberlin and one prison received officials addition, Quinlan the Bureau stated legitimate penological Tur- interests.” settings expressly related to manageable under authorized 78, 89, policy Safley, regulations. extent that this 482 U.S. S.Ct. To the ner v. the may impinge (1987). prisoner's amendment aon first 96 L.Ed.2d "reasonably valid as it is nevertheless rights, telephone fending long Siegert interviews. drawn out two lawsuit.” had conducted 226, -, Gilley, Declaration at 4. Kimberlin S.Ct. 1793, 114 (1991). Thus, L.Ed.2d it “ordi noted, foregoing previously facts As narily long should be decided the court dispute. vigorously con- are not What — trial,” Bryant, before Hunter v. U.S. for Kimberlin’s three tested is the motivation ——, -, 116 L.Ed.2d alleges the first two detentions. Kimberlin (1991), possible “at the stage earliest deny him access detentions were ordered id., at -, litigation,” S.Ct. while the third was retaliation pretrial discovery “such matters as are to be appellants, his media interviews. The possible, avoided if of this kind ‘[inquiries hand, the other maintain that the detentions peculiarly disruptive can be gov- of effective ordered for the reasons set out above:

were ” Forsyth, ernment.’ Mitchell v. 472 U.S. at safety the first to ensure Kimberlin’s and the Harlow, (quoting third-party later two on account of the call 2737-38). 102 S.Ct. at they Specifically, infractions. claim are entitled to from suit be- special immunity Because of the ac objectively cause their actions were reason- government corded officials who act in an in the able under the facts as established objectively manner, reasonable court has agree. record. We “heightened pleading” established a Fitzgerald, plaintiff gov In Harlow v. 457 U.S. for a like Kimberlin who sues 2727, (1982), 800, alleges 102 L.Ed.2d 396 ernment S.Ct. 73 officials and unconstitutional objective Supreme Ordinarily, 56(c), established an motive. Court Rule “[u]nder immunity “gov summary qualified judgment proper plead test for under which is ‘if the performing discretionary ings, depositions, interrogatories, ernment officials answers file, generally liability functions are shielded from together admissions on with the affidavits, damages any, for civil insofar as their conduct if genu show that there is no clearly statutory any does not violate established ine issue toas material fact and that the moving party judgment or constitutional of which a reasonable is entitled to a as a 818, person entry 102 matter of summary known.” law’” so that of judgment adequate then the has S.Ct. Since Court is “mandated” “after time qualified immunity motion, discovery upon against made it clear that should for a dismissed, granted, party and suit where showing who fails to make a sufficient plaintiff only allege “not failed to the viola to establish the existence of an element es right clearly case, party’s tion of a constitutional that was sential to that and on which that party established at the time of the proof [defendant’s] will bear the burden of at trial.” action, Catrett, 317, 322, ... Corp. but failed to establish the viola v. 477 Celotex U.S. 2548, 2552, (1986) right tion of constitutional at all.” Sie 106 S.Ct. 91 L.Ed.2d 265 226, -, 56).7 gert Gilley, (quoting v. 500 111 impose U.S. Fed.R.Civ.P. We a (1991). 1789, 1794, standard, however, stringent 114 L.Ed.2d 277 The more on a emphasized qualified plaintiff charges government immuni- Court has who a official ty immunity “an deprivation is suit rather than a with a constitutional where the from liability,” depends mere defense to Mitchell v. For outcome on the official’s state of 2806, 2815, syth, subject 472 U.S. 105 S.Ct. mind. Such a to this (1985), “heightened pleading” 86 L.Ed.2d 411 and that of “[o]ne [its circuit’s so-called stan dard, purposes] spare only requiring pleading specific is to defendant not of direct liability, but de- unwarranted unwarranted intent defeat a motion to dis imposed subsequent production customarily upon mands those de- miss and of such evi above, Quinlan's Miller's and motion to dismiss for failure of the to state a 7. As noted for, alternatively, summary one dismissal or granted, upon claim which relief can be matters judgment. parties Because the submitted and presented are outside and not the district court considered materials outside the court, excluded the motion shall be treat pleadings, we treat the motion as one for summary judgment disposed ed one as 12(b) ("If, summary judgment. See Fed.R.Civ.P. 56...."). provided as in Rule (6) asserting the defense numbered on a motion 794 (1991).9 1789, 277 While 114 L.Ed.2d summary judgm S.Ct. motion for to defeat denee Wilson, refraining adopting the v. U.S.App. 237 Hobson direct/circum ent.8 Nixon, (1984); employ, we most other v. stantial distinction Smith 1 737 F.2d D.C. “height adopted some sort of Martin v. Dis (D.C.Cir.1986); circuits have 197 807 F.2d goal Dep’t, standard to further Police pleading” ened Metro. 812 trict Columbia gov immunity, namely protect Martin v. Mal (D.C.Cir.1987); F.2d 1425 litigat (D.C.Cir.1987); from the burdens of Whitacre ernment officials hoyt, 237 F.2d 830 Mitchell, claims,” (D.C.Cir.1989); 472 U.S. Sie- “insubstantial Davey, 1168 v. F.2d 2815; Harlow, (D.C.Cir.1990), 457 U.S. 105 S.Ct. Gilley,

gert v. 102 S.Ct. at 2738.10 grounds, on other aff'd ' cases, this, here, quirements which an summary judg- such as applied, at the as 8. When raised.”); Chapman immunity “heightened plead- defense can be expression stage, the ment Detroit, Cir.1986) (6th City 808 F.2d the enhanced stan- ing” because is a misnomer (“It enough complaint § under showing is not evidentiary greater rath- requires dard allegations conclusory mere of uncon- to contain v. Thom- pleading. See Elliott er than enhanced ("[W]e by persons acting (7th Cir.1991) under color as, dep- stitutional conduct 937 F.2d claims law. Some factual basis for such ‘heightened pleading’ of state expression recate the pleadings.”); in the Elliott v. quantum proof must be set forth minimum speak instead Cir.1991) Thomas, (7th summary 937 F.2d motion for required defeat the initial (‘‘[W]e the conun- think that the best solution to summary judgment, appli- judgment.”). For produce ‘spe- require plaintiff to drum is to might better be characterized cable standard cific, nonconclusoiy allegations which es factual production.” "heightened one of state], necessary mental or face dis [the tablish the kernel of a missal.’ Unless has County Recently, v. Tarrant Nar in Leatherman hand, the defendant wins on case in Unit, - U.S. Intelligence & Coordination cotics discovery.” (quoting grounds Sie in advance of (1993), -, 122 L.Ed.2d at -, (Kenne- gert, 111 S.Ct. at 1795 heightened pleading rejected a Supreme Court J., dy, concurring)); Frey, Brown v. alleging municipal 1983 suits in section Cir.1989) (8th ("Damage actions expressly it had "no occasion liability noted but government subject heightened are to a officials qualified immunity juris- our to consider whether precision pleading standard of with sufficient heightened pleading require a prudence would ‘ put defendants on notice of the nature of the "to government involving officials.” individual cases prepare response claim and enable them to a Id., at -, The Court ob S.Ct. at 1162. 113 and, summary judgment appropriate, where a officials, government "unlike various served that ’ qualified immunity grounds." on Mar motion enjoy immunity municipalities from suit— do not 237, (D.C.Cir.1987) Malhoyt, tin v. 830 F.2d 254 id., qualified," suggesting the or either absolute Wilson, (quoting U.S.App.D.C. Hobson v. 237 capacity might in individual be different result 1, 219, (1984))."); v. 737 F.2d Branch Tun against government officials. The Court actions ("We nell, 1382, (9th Cir.1991) 1386-87 937 F.2d heightened pleading stan- a true also noted that dard, requirement plaintiff put that a must believe a solely applied a motion to dismiss based subjective nonconclusory allegations of forward impossible pleadings, “is square, motivation, supported either direct or circum- up by system pleading’ ‘notice set the liberal of evidence, had, discovery may before stantial particularly with rule the Federal Rules” government offi- satisfies Harlow’s directive that “ 8(a)(2)’s complaint requirement that ‘a include 'insubstantial' law- cials should be shielded from suits, pleader plain only statement that the a short and op- preserving at the time while same id., at -, relief,’” 113 S.Ct. at entitled to is portunity plaintiffs pursue for meritorious 1163, apply that does not to a a consideration Ctrs., claims.”); Neighborhood Health Inc. Pueblo production heightened of at the sum- standard Losavio, 642, (10th Cir.1988) 847 F.2d 649-50 v. judgment stage. supra mary note 8. In ("We agree with the Martin District Colum- [v. of event, height- address the Court did not because Dep't] court Su- '[t]he bia Metro. Police suits, capacity pleading our in individual ened preme "strong Court’s condemnation of insub- requiring in such suits precedent that standard against government suits officials” im- stantial governing this circuit. law of remains the pels application demand- of a standard more plaintiffs public of when officer defendants See, Lindsey, Corp. e.g., summary judgment v. 905 F.2d Dunbar the basis of their move for on Cir.1990) (“We (4th [Martin, agree immunity.' with the qualified 812 F.2d at 1435] 763-64 States, ‘heightened Malhoyt] a (quoting court that v. 742 F.2d [v. Martin Krohn United (1st Cir.1984)). highly subjec- appropriate in ac- pleading is Where the defendant's standard’ officials.”); plaintiff's against government of the claim Jackson tive intent is an element tions summary judg- Dep't, defendant has City (5th Cir.1992) (“[Tjhis Police and the moved Beaumont showing objective requires reason- ment based on a of the circuit actions, may plaintiff avoid of his heightened pleading re- ableness plaintiffs § 1983 meet Whitacre, is, explained we the rationale for tive. That some direct evidence that heightened pleading standard as follows: improperly our the officials’actions were moti- litiga- produced costs attend the vated must be if “substantial the case is to Since subjective good govern- of the faith of proceed tion trial. Harlow, officials,” at ment Martin, (citing 895 F.2d at 801-02 812 F.2d and since the Court 1435); Whitacre, see also 890 F.2d at 1171 need to terminate insubstan- stressed the (“[W]e imposed, in cases where the id., trial, Bivens11 claims before see tial subjective defendant’s intent an essential 815-16, 102 sup we have claim, part demanding requirement requirements planted pleading the liberal on proceed in order to to trial or of the Federal Rules with discovery. obtain See Martin v. District whenever a in a Dep’t, Columbia Metro. Police 812 F.2d alleges Bivens claim an unconstitutional (D.C.Cir.1987). avert ‘[T]o dismissal motive. trial, plaintiff] short of [the must come for- (citing Malhoyt, F.2d at 1171 Smith and something ward with more than inferential Hobson). recently, Siegert, More we support allegation circumstantial for his clearly explained applies how the standard is, unconstitutional That motive. some direct summary judgment quali- motion based on evidence that the officials’ actions were im- immunity: fied properly produced motivated must be if the subjective Where the defendant’s intent is proceed ease (emphasis is to to trial.’ Id. claim, component plaintiffs an essential added).”). Thus, in response to Miller’s and pretrial once defendant has moved below, Quinlan’s motions Kimberlin was re- objec- judgment showing on a based quired proffer actions, direct evidence of unconsti- tive reasonableness of then part tutional motive on trial, the two defen- plaintiff, to avert short of dismissal precluded relying dants and was something must come forward with more support mere than inferential or circumstantial circumstantial evidence. We conclude allegation for his of unconstitutional mo- Kimberlin failed to sustain this burden.12 case, summary judgment only by pointing specific ened is not critical. In either improp sought purpose, evidence that the official’s actions were courts have to achieve the same erly only namely motivated. In some instances the effectuation of the aims of examined, Wilson, pleadings incorporate are see Hobson v. subjec- in claims which (1984) U.S.App.D.C. County, tive element." Gooden v. Howard (heightened 960, (4th pleading required pro Cir.1992) (en banc). standard F.2d 970 n. 3 others, discovery), case, ceed to while in such as the present developed the information that is Agents 11. In Bivens v. Six Unknown Named of by discovery before the motion is made should Narcotics, 388, Fed. Bureau 91 S.Ct. of considered, DeVargas also be [v. Mason & Han (1971), Supreme 29 L.Ed.2d 619 the Court Co.], [714,] (10th ger-Silas Mason 844 F.2d damages authorized actions federal offi- Cir.1988).”); City Birmingham, Oladeinde v. of cials for constitutional torts. Cir.1992) (11th (“On a (whether question pleadings related about recognize 12. We that in one recent section 1983 claim), complaint states a we want to use this alleging panel case unconstitutional intent opportunity repeat 'in an effort to elimi- "heightened plead- this court characterized the pleadings nate nonmeritorious claims on the ing” simply requiring standard "nonconcluso- protect litiga- public protracted officials from ty “sufficiently allegations” precise” that are we, involving specious tion claims and other "specific enough” put and concrete defen- courts, tightened application of Rule 8 dants on notice of the nature of the claim and §to v. cases.' Arnold Board Educ. prepare response, including enable them to (11th County, Escambia F.2d Cir. summary judgment qualified motion based on 1989) (citation omitted). In a section immunity grounds, any either action, without mention of necessary, some factual detail is direct or circumstantial evidence. especially if we are to be to see that the able Crawford-El Britton, (D.C.Cir. allegedly right clearly violated was established 1991). occurred.”). appears The reason for this omission allegedly wrongful when the acts defendant-appellant’s recently lie in the failure to raise The Fourth Circuit "Whether observed: height- purposes discriminatory the distinction in her discussion of the of Harlow in animus Appellant expressed by are ened standard. See Brief for cases means of immu- so, finding nity by requirement height- Even formulation or Crawford-El. than cast cites does more mo dence Kimberlin unconstitutional To establish detention, appellants’ reasons for relied stated Kimberlin doubt first tive for his among direct discrepancies does not constitute alleged their actions —it primarily on any imper accounts of the circum acted out of participants’ various motive, Novem the detention. On preceding as our circuit’s stances missible detention, Kimberlin’s first requires. Mary’s the date of Honor ber St. Cf. — telephone at least twice spoke Hicks, U.S. -, Miller over Ctr. v. who, according reporter (title radio (1993) vii does 125 L.Ed.2d 407 Miller, had told her that Kimberlin related by merely carry persuasion burden “led press conference the cancellation firing disproving proffered explanation for by safety threatened his was him to believe actu affirmatively establish race as but must prison authorities.” attitude of the the hostile factor). motivating al Quinlan, 2-3. consis Memorandum Miller fact, alleges— the motive Kimberlin placed Kimberlin tently, maintained he par- denying him access to the —seems after, because, he learned that detention ticularly unlikely since Kimberlin had al- Loye ... reporter had “advised Miller ready allegations to News and aired his NBC might be in some Kimberlin that she believed ” permitted telephone contact with mem- Keating Memorandum at 3. The ‘danger.’ others, during his of the media and even bers hand, admitting reporter, on the other while Deposition Richard D. detention. Kimberlin an hour before his detention (handwritten Acuff, by prison standard, phoned "perhaps p.m.," the Bureau at Id. at had met Crawford-El Reno, p.m. panel expressly "specific 10:00 in El relied on statements" which would been Oklahoma, by a full hour and a half before Kimber- the defendant that showed her intent. event, placed any panel 1321. In decision in Craw- lin was detention. not, not, and could overrule the then did ford-El requirement established circuit that a evidence, Quinlan 14. Given this acted in an ob- plead produce, depending stage or jectively ordering reasonable manner in Kimber- litigation, direct evidence of unconstitutional in- safety lin’s detention until his could be assured. tent. obligation provide Prison officials have an to prisoners protection with reasonable from fore- claim, See, support e.g., Washington 13. In of his also cites a seeable violence. v. Kimberlin District Columbia, (D.C.Cir. by "pretty he statement Miller that was sure" 802 F.2d Thus, 1986). already given that Kimberlin was in detention before information he received Miller, remiss, spoke Quinlan he Bureau. Miller Memorandum would have been inconsistent, equivocal liability, at 4. This statement is he and risked failed to order deten- however, subsequently with Miller’s recollection he tele- tion and Kimberlin came to harm. Report; vember summary judgment as it related 1988 Incident denying November 14,1988 Disciplinary Hearing Report, first detention. Officer subsequently, Keating and see Memorandum allegation, that Kimberlin’s second 96; Letter at Sabol 68-69. Kimberlin has was also ordered the November 7 detention come forth no any direct evidence of deny press, him access to the fares no other motive for this detention.16 First, has cited no direct better. Kimberhn Finally, appellants qual- are entitled to Quinlan or Miller that either was ified on Kimberlin’s claim that the appears even involved in this detention which retaliatory 22 detention December was be- prison to have been ordered local officials. any cause the record is also devoid of direct (“[T]his placement Letter at Sabol appellant evidence that either was involved in and the one in De administrative detention which, according that detention El Reno cember, 1988, local were both done records, imposed by local officials for a any level and did not involve direction or alleged second third-party violation of the Bu consultation with staff members of the regulation. call Department reau of Prisons or the of Justice sum, Washington.”); Keating only at 4 In Memorandum Kimberlin relies on inference (“[T]he evidence, place Kim notably local officials decided weak circumstantial events, Monday morning. timing support on berlin detention his claim of Quinlan Central Office was not involved that decis unconstitutional detention ion.”).15 addition, noted, Miller; already produced it is he has no direct evidence of beyond dispute that Kimberlin violated the unconstitutional motive for of his deten- published third-party regulation required heightened call tions as under our stan- —the proffered the Bureau for his second dard. Kim- reason Such unsubstantiated claims as contemporaneously, precisely both see No- berlin raises are sort detention that both course, by ordering Quinlan satisfy Of the detention also direct evidence so as to our (and got) a lawsuit. risked standard. newspaper

15. Kimberlin cites two articles as evi- letter, In her June Sabol wrote: Quinlan’s support dence to involvement in the 7, 1988, Monday, upon On November review the New November detention: one in York information, intelligence it was determined quoting saying Times Miller as "Mr. Kimberlin attempting that Mr. Kimberlin was to use the placed was twice in administrative detention on telephone up press to set conference in Quinlan, the order of J. Michael head of the result, morning. Washington D.C. that As a Prisons,” Solitary Quayle's Federal Bureau of again placed Mr. Kimberlin was in administra- Accuser, N.Y.Times, B9, Dec. and a detention, tive to avoid a violation of our rules Legal similarly quoting in the Times Mil- .second protect integrity security. of institution asserting ler as Bureau of Prisons "[t]he however, nothing suggest, Id. at 3-4. There is caught going on that he was to hold another explanation was based information that her in,” put conference so him back Aaron (local officials) obtained from those involved Freiwald, Quayle Inmate with 19, 1988, Isolation for (Kimberlin Miller) purportedly even involved Claims, Times, Legal Dec. at 10. Such in the detention decision so as to constitute di- however, summary hearsay, cannot defeat a rect evidence of their intent. judgment necessary motion. While it is not improper Kimberlin also cites as evidence of nonmoving party produce “the must evidence in placed intent that he was in detention before a form that would be admissible at trial in order being guilty violating third-party found call Celotex, summary judgment,” to avoid regulation. (authorizing § See 28 C.F.R. 541.22 2553, "normally” hearsay 106 S.Ct. at placed inmate in administrative deten- an enough not be an "would to raise issue of fact (1) only tion "when the inmate is in holdover summary judgment purposes,” Crawford-El institution) (i.e., designated Britton, status en route to a (D.C.Cir.1991). transfer, during pending or is a new commitment Specifically, party's description “A [a third (2) classification” or "when the inmate’s contin- testimony supposed witness’s] is not suitable general poses presence population ued in the grist summary judgment for the mill.” Garside life, self, staff, Inc., 46, (1st Cir.1990). property, other serious threat to Drug, v. Osco Thus, 895 F.2d 50 security orderly running inmates or to the newspapers' the two characterizations of condi- the institution” and one of six enumerated Miller's statements are useless to Kimberlin. evidence, however, Further, present). tions is also This as there is evidence that Miller no intent, wholly probative circumstan- special even if involved in or had information about the detention, satisfy opinion regarding November 7 tial and would therefore be insufficient to why who ordered it or cannot be viewed as our standard. 798 height- except fatal in the rare ease of the defen- immunity our circuit’s be

qualified 937 F.2d at 345. At the intended to cut short. dant’s confession. standard are ened time, perjured having same while a claim of Accordingly, the district court’s denial of test, would meet the motion to dismiss or heard such a confession individual defendants’ not. amend- a massive circumstantial case would summary judgment on the first Circuit, And, Judge speaking for the Ninth ment claims is the defendant’s Hall noted that evidence of Reversed and remanded. likely peculiarly to be under his intent was Tunnell, 1382, control. Branch v. 937 F.2d WILLIAMS, Judge, F. Circuit STEPHEN (9th Cir.1991). hardly surpris- It is 1386-87 concurring: only to consider our circuits opinion in the of the court. When I concur Elliott; rejected it. direct evidence rule have enjoying that an official plaintiff claims Branch. Both circuits concluded that it was immunity qualified has committed a constitu- plaintiff put specific, enough for forward motive, involving precedent circuit tional tort Elliott, non-conclusory allegations, 937 F.2d (as proffer “direct” requires 344-45; Branch, at 937 F.2d at circumstantial) opposed to evidence of the nothing require having we even in cases obtaining discovery illicit motive before Wilkins, motive, do with see Andrews v. 934 793-95; Maj. Op. official. 1267, 1269-70(D.C.Cir.1991); Hunter v. F.2d (D.C.Cir.1990), Gilley, Siegert v. 895 F.2d Columbia, District 943 F.2d grounds, 'd on other (D.C.Cir.1991). aff (1991); L.Ed.2d 277 S.Ct. simple requirement specific, non- Davey, 890 F.2d 1171 & n. Whitacre v. eonelusory may only allegations not be the (D.C.Cir.1989). Plaintiffs here have Seigert. alternative to Doubtless reasonable Maj. Op. at 796-98. met standard. recognizing vulnerability of the direct say not to that circuit law is cor This is rule, Department here Justice arose out of an effort to rect. The restriction argued position. A a fallback could conflicting goals: protect officials reconcile discovery by making showing get only immunity litigation qualified undue strong specific if illicit intent so legal burdens and to afford remedies for true, alleged accepted facts were rea- may citizens whose have been abused. jury to infer illicit mo- sonable would have Fitzgerald, 457 Harlow v. S.Ct. (Discovery ultimately tive. trial would (1982), 2727, L.Ed.2d 396 had framed the necessary to determine whether of course be immunity objective qualified test terms true.) Appel- specific allegations were precisely a rule that sheltered an because proposal lant’s Brief at 30-32. The bears only official he had incurred the bur after some resemblance to a test devised for cases discovery into his motivation — a dens of plaintiff claimed that officials with where subjective highly pretty be issue—would had conducted electronic Id., flimsy shelter. surveillance, turning on with lawfulness Thomas, 2736-39; see also Elliott v. whether had done so for national securi- (7th Cir.1991). adopting Kissinger, ty purposes. Halperin v. evidence rule for constitutional torts “direct” (D.C.Cir.1986). 180, 184-85 There we motive, involving that Harlow we reasoned summary judgment motion said defendants’ logically required especially high an thresh granted they “adduce[d] be if suffi- should showing of unconstitutional motive before old jury, looking at cient facts that no reasonable exposed discovery. defendant should be light the evidence most favorable to Whitacre, F.2d at 1171. that it was ob- plaintiffs, ... could conclude jectively unreasonable for the defendants to The distinction between direct and circum- evidence, however, security appears complete- acting for national reasons”. stantial id., 189; (immunity defense ly arbitrary strength and unrelated to the see also at 188 pur- Judge prevails “if the facts establish that the plaintiffs case. As Easterbrook Elliott, security ported national motivation would pointed requirement out in reasonable”). proposed been The rule ... with the system liberal plead- ‘notice by appellants stringent seems more than ing’ up by set the Federal Rules.” adopted the one we for a -, situation that com- added). 113 S.Ct. at (emphasis inquiry bined into motive with national secu- The Court also made it clear height- that a concerns, rity may logically so it unsus- pleading ened requirement “must be ob- If the tainable. direct evidence rule is reex- process tained amending the Fed- banc, however, amined en Rules, the reconsidera- eral by judicial and not interpreta- tion should encompass alternatives. tion.” Although Id. Supreme Court did not address present issues EDWARDS, HARRY T. Judge, case, id., Circuit at -, this 113 S.Ct. at dissenting: rationale underlying the decision in Leather- man —that standards of “heightened plead Kimberlin, inmate, Brett a federal claims ing” are fundamentally incompatible with in this ease that the Director of the Bureau 8(a) Fed.R.Civ.P. doubt on the validi- —casts and the Prisons Director of Public Affairs ty any judge-made “heightened pleading” Department at the of Justice violated his imposed id., standard context. See rights First Amendment when caused -, 113 S.Ct. at 1163. placed him to be in “administrative deten- tion” to retaliate trying Despite him for strong to message sent talk According Supreme with the media. Leatherman, to Kimber- Court in majority lin, conjunction retaliation this occurred in the instant case heightened embraces a attempts the federal officials’ prevent pleading standard giving without serious at him telling story fi’om allegedly his validity that he tention its or wisdom. To make marijuana worse, sold to former Vice President matters the majority insup adds an Quayle Quayle when portable was in gloss standard, school. law The to the distinguishing majority now holds under a between evidence, so-called direct and circumstantial “heightened standard, pleading” thereby requiring plaintiffs plead Bivens1 direct, lawsuit must be dismissed opposed because his com- as circumstantial, evidence plaint rests on motive, “circumstantial evidence.” In of unconstitutional or suffer immedi view, my misguided unfair; this result is ate dismissal of their only suits. Ours is the it also stands at odds Supreme with the imposes circuit that requirement such pronouncements Court’s most rights recent plaintiffs.2 on civil because, I dissent “heightened pleading.” assuming even pleading valid, standard can be majority’s so- 3,1993, On March Supreme Court held called “direct rule” has no founda that a federal court may apply “ tion in reason inor the case law. ‘heightened standard’ —more stringent than pleading require- the usual BackgRound I. 8(a) ments of Rule of the Federal Rules of Civil Procedure —in civil alleging cases infirmity and unfairness of the so- municipal liability § under [42 U.S.C. 1983 called “direct starkly evidence rule” is appar- (1988) ].” Leatherman County case, v. Tarrant ent which a Bivens Intelligence Unit, Narcotics & provided Coordination ample has circumstantial— —albeit - U.S. -, -, 1160, 1161, 122 government evidence that officials twice vio- (1993). reaching L.Ed.2d this conclu- rights. lated First Amendment Brett sion, Court wrote impossible Kimberlin, inmate, “it a federal alleges that J. square ‘heightened Quinlan, standard’ Michael the Director of the Bureau Tunnell, 1. Agents Bivens v. Six Unknown Named Fed. tent. v. Branch 937 Narcotics, (9th 1991); Bureau Thomas, 91 S.Ct. Cir. Elliott 937 F.2d (1971). 29 L.Ed.2d 619 — (7th Cir.1991), denied, -, cert. U.S. denied, 112 S.Ct. 117 L.Ed.2d 138 and cert. explicitly circuits have Three considered and — —, 117 L.Ed.2d rejected heightened pleading that re- (1992); Kentucky, Crutcher v. direct, quires plead opposed (6th Cir.1989). circumstantial, evidence of unconstitutional in- interview. an earlier Jr., arrange for Miller, to Reno (“BOP”), Loye W. and Prisons in a memoran Quinlan later wrote Depart Director at the Public Affairs Director the lack of fundamental (“DOJ”), his First dum “Kimberliris that violated of Justice ment of unnecessari credibility, Kim- likelihood they caused and the when rights

Amendment just story before ‘cover-up’ deten a ly precipitating “administrative in placed to be beriin deci election, major the factors retaliate were to the him and to silence tion” on story original to the interview Quayle NBC permit the to tell his sion trying to him from J. not had the has Memorandum schedule.” Although Kimberlin an earlier media.3 Keating, II to the A. discovery, Quinlan has to Francis he submitted Michael benefit documents, 93, affidavits, at 94. prison (Dec. 1988), J.A. 22, reprinted in numerous court written articles, memoranda newspaper prison at Kimberlin the interviewed NBC strong cir provide that defendants the Friday, p.m. on until 12:15 from 11:30 a.m. allega of his support cumstantial R.C. Be from 4. Memorandum November tions. (Nov. 1988), Investigative File nefiel to shortly place took in this case events Meanwhile, because at 49. in J.A. reprinted presidential elec- the 1988 and after before many re so received officials had prison was incar- Kimberlin tion, during time which Kimberlin, Roger for interviews quests Reno, El prison in federal at the cerated Reno, in El Benefiel, Acting Warden the elec- weeks before two About Oklahoma. “press “joint interview” that suggested a a journalist, received Totenberg, tion, a Nina agreed Kimberlin be held. conference” marijuana to sold that Kimberlin tip conference, was scheduled press Quayle when candidate vice-presidential evening. Administrative that p.m. for 7:00 Totenberg inter- law school. Quayle inwas Carolyn A. Letter # Tort Claim telephone, and ar- Kimberlin viewed (June 19, T. Rosenblatt to Howard Sabol give affidavit an Kimberlin ranged for 66, 67; Declara 1990), at reprinted J.A. Nina To- story. Declaration verifying his Kimberlin, reprinted in J.A. Brett C. tion of (“J.A.”) Appendix reprinted in Joint tenberg, Quinlan cancelled Director 72-73. Thereafter, Totenberg sent the 79, 79. Memo Quinlan/Keating press conference. Goodin, dep- to Mark affidavit Kimberlin Reporters ar randum, who 95. supra, J.A. cam- Bush-Quayle secretary of the uty press conference prison for rived at turn, the affi- Goodin, then showed paign; due to cancelled had been were it told Baker, cam- Bush-Quayle to James davit Press Release circumstances.” “unfor[e]seen Atwater, Bush- chairman, Lee paign 1988), (Nov. 4, in J.A. reprinted manager, Stuart campaign Quayle manager. campaign Quayle Quinlan ordered night, Director Spencer, Later Goodin, reprinted detention,” Wayne of Mark Deposition “administrative into Kimberlin regulations, 99-103. con- J.A. which, according to BOP special cell and removes a inmate in fines the organiza time, other news this At about prison population. general him from story interested Kimberlin’s became tions (1992). p.m. on 10:30 At § 541.22 C.F.R. Prison of began requesting interviews. handcuffed, was Kimberlin November NBC agreed to Reno allow in El ficials the outdoor across 1988, wheelbarrow-marched November Kimberlin interview searched, coat, strip compound without satisfied, threatened NBC day. Not election Declara- Kimberlin cell. into a small locked and run allegations broadcast expressly for- He was tion, supra, J.A. interview story unless an earlier “cover-up” next calls until the phone make bidden Thursday, November arranged. On could demanded afternoon, duty officer when Washing the BOP Office the Central 74; FCI El Totenberg. he call in El prison officials ton, asked D.C. However, has not story. Kimberlin Quayle his alleges defendants also 3. Kimberlin specific facts allegation with corroborated linking tion; harassment continual to suffer caused him exercising 22 deten- the December defendants he when Amendment First therefore, agree does not survive that it I on De- detention placed in administrative standard. heightened pleading talking about reporters after cember Record, Special Housing Reno reprint- Second, Unit there is further evidence that the ed justification in J.A. 87. Kimberlin was released at that placed Kimberlin was in p.m. Saturday, 7:30 on 5. protection November detention his pretextual. In statement, a sworn Totenberg denies that weekend, That Kimberlin made several “quoted she saying Kimberlin [] his life phone arrange telephone calls to interview danger.” inwas Totenberg Declaration, su- reporters gather May- who would at the pra, J.A. 80. Kimberlin also having denies Washington, flower Hotel in D.C. on the expressed safety. concern for his Kimberlin morning Monday, day November Declaration, supra, J.A 73-74. Further- before Again, the election. the interview more, there was no reason to restrict Kim- press place. never took At 9:00 phone berlin’s if calls he was in detention for a.m., planned before telephone interview, safety; fact, his prison regulations require Kimberlin was once more taken to the ad- the warden procedures to establish for in- unit, searched, ministrative strip detention segregation mates in phone to make calls. cell, and locked in a detention this time for (1992). § Yet, 28 C.F.R. 540.105 Kimberlin days. seven Kimberlin was allowed to call expressly was phone forbidden make calls lawyer, his family not his press. but or the during the first until detention the afternoon Declaration, Kimberlin supra, 74-75. J.A. Declaration, November 5. Kimberlin su- 74; pra, Special J.A. Thus, Housing Record, Unit was Kimberlin adminis- confined supra, J.A. 87. occasions, separate trative detention two immediately either prior after or to contact Third, it highly was high-rank- unusual for with the media. timing The of these deten- ing officials such as Quinlan Miller and tions alone supports an they inference that- become involved in an administrative deten- were intended to silence Kimberlin retali- Pendleton, tion decision. congressional John ate for speaking him to the media. BOP, liaison for the told the Legal Times This supported inference is further by the that he could not “think of another instance conflicting, seemingly pretextual, expla- and in which the director of the bureau made the nations Quinlan offered Directors and place decision to inmate in an administrative regarding Miller the reasons for Kimberlin’s detention. system 45,000 houses some Indeed, detentions. many there are details Freiwald, inmates.” Aaron In Isolation for Quinlan strong- and Miller stories that Legal Times, Claims, Quayle mate with Dec. ly support that claim acted with a 19, 1988, reprinted in J.A. at 90. purpose infringe clearly estab- Fourth, conflicting there pretextu- are lished rights. First Amendment explanations al regarding Kimberlin’s second First, there detention, are inconsistencies Quinlan and the in- Miller Quinlan and concerning Miller stories volvements with it. In writings, various reason for Kimberlin’s Quinlan November deten- denies he or that the BOP’s Central memorandum, tion. Quinlan explains ordering Office was involved the second that he El instructed the Reno officials to Quinlan/Keating Memorandum, detention. place detention, Kimberlin “pending supra,. 96; an J.A. Quin from J. Letter Michael any possible threat,” assessment of be- to Robert (Aug. after lan Kastenmeier W. 1990), informed that Nina Totenberg had reprinted told J.A. at 108. But Miller of the DOJ that “she Kimber- believed Miller told the York “Kim New Times that ” might lin be in ‘danger.’ Quin- some placed berlin was twice in administrative de- lan/Keating Memorandum, supra, J.A. Quinlan.” 95. tention order of J. Michael Miller that he Accuser, confirms learned from Toten- Solitary Quayle’s Times, N.Y. berg that expressed had (em- Kimberlin fear for reprinted Dec. in J.A. at 109 safety, added). but safety denies that phasis Furthermore, concerns on November had influence on the put 7, Quinlan decision to tapes was sent of Kimberlin’s Kimberlin in detention. telephone Memorandum from conversations “with numerous Loye (Oct. Miller May to Whom It friends,” personnel, family Concern news media 11, 1989), reprinted in J.A. at report 84-85. investigative supervisor of an BOP’s contradicted himself has Miller past three “spent the who prison at the placed de was Kimberlin explanation Memorandum case. working on days” rules. telephone prison violating (Nov. tention for Quinlan J. Michael Martin

from T.C. “[i]t in a memorandum wrote Miller Thus, 1988), in J.A. reprinted understanding the time certainly my suggests that strongly is evidence there an unauthorized attempt to hold it was situation following Kimberlin’s Quinlan was directly [Kim- caused conference involved have been may well closely, and again.” Miller segregated once berlin] to Miller, who detention. second ordering the Legal Memorandum, The 86. supra, J.A. de- the second with involvement also denies “[t]he that saying Miller quotes Times the BOP called acknowledges that he tention, to going was caught [Kimberlin] on that BOP learned and morning of November conference, ... so press hold another detained. again been that Kimberlin Inmate, su in.” Isolation him back put Memorandum, 85-86. supra, J.A. Miller 90. pra, J.A. tracking closely Kim- Thus, too Miller was that Fifth, there is uncontested status. berlin’s close con- campaign was in Bush-Quayle BOP Quinlan and the explanation that Miller BOP and Quinlan at the tact with con- is detention second for the have offered Kimberlin time when during the the DOJ to In a letter by prison documents. tradicted being and media trying to contact was Biden, Quinlan that stated Joseph Senator Bush-Quayle detention, and placed in a viola- detention to was sent Kimberlin about concerned were campaign officials Mon- on committed prison regulations tion of story on the impact of Kimberlin’s possible attempted he when day, November Bush- Quinlan, the According to election. party. Letter a third through a call place Novem- on the BOP campaign called Quayle Biden, Joseph R. Quinlan to Michael from J. interview the NBC more about learn ber 1988), (Dec. 22, reprinted J.A. Jr. Memoran- Quinlan/Keating Quinlan. letter, Quinlan wrote that later a 78. campaign official dum, supra, 96. When J.A. up a tele- set attempting to was “Kimberlin press confer- learned about Goodin Mark using impermis- an conference, press phonic place on November towas take ence that The tele- party’ procedure- ‘third sible and with Miller spoke the DOJ called he reason the sole was phone violation in- Miller’s assistant assistants. of his one place him deten- decided local officials an there was “unless formed Goodin Quinlan/Kas- Monday morning_” tion on concern, within ... it was security immediate (emphasis Letter, supra, J.A. tenmeier press con- a parameters [hold prisoner’s Claim, su- added); see also Administrative supra, J.A. Deposition, Goodin ference.]” Monday, (stating “[o]n pra, J.A. already apprised Miller, who was 104. of intelli- upon review November conference, his assistant’s confirmed press information, it was determined gence information: to use the attempting Kimberlin was Mr. ap- fellow Kimberlin said “This [Goodin] press conference in up a to set telephone press confer- going parently is result, morning. As a Washington D.C. that I’m amazed.” ence. again placed adminis- was Mr. Kimberlin not, “Well, he’s said, amazed or [Miller] detention-”). According prison trative rights to It’s within his have one. going to charged however, documents, was Kimberlin regula- according the rules and have one regula- violating prison guilty found tions.” call third-party phone on placing a tions for said, over.” “I am bowled [Goodin] And J, attempted he had November when Friday, said, “Its fact.” [Miller] And Estrich, manager of the' to call Susan Id. at 105. party. third through campaign, Dukakis Further, in close contact (Nov. 7,1988), Goodin was reprinted Report Incident of November Report Miller weekend 58; Hearing over Disciplinary in J.A. telephone setting up his (Nov. 14, 1988), 56- when Kimberlin reprinted in J.A. at called 7. Goodin for November interview berg’s affidavit, Miller several times that weekend to ask Miller told press her that the about the Kimberlin situation and to update conference had been per cancelled orders Quayle campaign’s Miller on the strategy if from the Totenberg Declaration, DOJ. su- story the Kimberlin were to break. pra, Goodin J.A. 80. planned told Miller that he to travel with summarize, To the record Quin- shows that Quayle Monday press to handle relations. lan and Miller have offered conflicting, incon- Memorandum, supra, Miller J.A. 85. sistent seemingly pretextual explana- Sixth, Quinlan’s tions for explanation of Kimberlin’s his sudden detentions on Novem- ber decision to cancel 7. There the November 4 is further press evidence that Bush-Quayle prison entirely campaign conference at the suspect. officials were in Reporters close contact during were told that with Miller confer the time of ence was cancelled due to Kimberlin’s detentions and upset cir were over “unforeseen Release, possibility cumstances.” supra, story Press receiving J.A. 37. (and Quinlan media Quinlan later attention. possibly wrote in a memorandum that Mil- ler) directly prevented he learned about press the conference from a Kimberlin from speaking reporters wire service’s inquiry, and that his decision November and Quinlan to cancel the has offered an explanation conference was based on incredible “the fact that for his policy press the decision to cancel Bureau’s on media that access confer- permits ence. individual The record thus powerful media contacts in contains mates, as well circumstantial press pools as small evidence of the under defendants’ il- circumstances, legal specialized motivation placing but does au Kimberlin in not de- tention. press thorize inmate Quin conferences.” lan/Keating Memorandum, supra, J.A. 95. The information that pre- Kimberlin has Contrary Quinlan’s statement, however, to sented satisfies a also regulations the BOP’s do not press disallow one). (assuming may apply we He 540.63(h)(4) § conferences. See 28 C.F.R. provided specific dates, has the events and (permitting the “[l]imit Warden to the ... surrounding actions allegations, thereby personnel number of media entering the in putting the defendants on notice of the if stitution the Warden determines the that charges against them. He has corroborated personnel ... requested would create a dis pled the facts allegations in his with adminis- institution”); ruption within the see also 28 articles, trative newspaper documents and § (permitting C.F.R. 540.64 the Warden to provided and has reliable evidence—such as press pool establish a “whenever he or she regulations affidavits and federal cast —that that frequency requests determines the suspicion veracity of the defendants’ interviews and visits reaches a volume that alleged denials. He has also that the defen- limitations”). fact,

warrants prison In offi dants took certain specifically, caus- action— El initially cials at Reno suggested press the ing him placed to be administrative deten- Claim, conference. supra, Administrative that, trial, proven if support tion— J.A. 67. the inference that the defendants acted with impermissible short, motive. the Miller of the may DOJ also have been provided nonconclusory, factually-based, has involved the cancellation of the November specific allegations and of unconstitutional press Miller, According conference. he expect intent. To more from Kimberlin called BOP on November to ask about compel would be him prove his case at press He did conference. not talk to pleading stage, something that neither Quinlan, and was whether unsure the BOP Rules nor Federal common sense re- about knew conference before his quire. later, An call. hour or two Miller heard Quinlan “when Director had learned that the Heightened Pleading II. The Standaed prison warden was about allow a Kimber- conference, lin press (Quinlan) cases, he or- Generally, plaintiffs in civil are enti dered it Memorandum, called off.” Miller discovery tled to if set forth in their “ supra, According J.A. 82-83. complaint to Nina plain Toten- ‘short and statement of Siegert are irreconcilable and Hobson fair defendant give the that will claim’ commands, appears thus it their claim is plaintiffs what notice of the circuit Conley ignored v. the law Siegert panel it rests.” upon

grounds rule.” None- 78 S.Ct. evidence Gibson, adopting a “direct (1957) ignores (quoting ease theless, majority in this Fed.R.Civ.P. L.Ed.2d Fitzgerald, 457 U.S. instead, 8(a)(2)). Siegert, In Harlow relies on Hobson (1982), 73 L.Ed.2d Siegert S.Ct. if case. Even dismissing Kimberlin’s concluded however, Supreme Court merely an “out- as read can somehow suffice should allegations of malice “bare claim, I fanciful of Hobson —a growth” either officials subject government by the ought to be reconsidered think —it of broad- the burdens or to of trial costs simple here The truth en banc. court 817-18, discovery.” reaching support in no rule” finds a “direct purpose Rules, Supreme is at odds the Federal dispose was to in Harlow immunity rule law of this the case defies precedent, Court discovery and prior claims “insubstantial” circuits, no- is a nonsensical other id., trial. See tion. officials “government Thus, held Harlow functions, discretionary generally performing above, matter, noted an initial As damages liability for civil are shielded in Leather- decision recent Supreme Court’s violate does not their conduct insofar as underlying even the into question calls man statutory or constitutional clearly established standard heightened pleading the rationale person a which reasonable Hobson, justified this court In in Hobson. Id., 102 S.Ct. known.” as a pleading requirement heightened the purported to eliminate Although the Court Rules of of the Federal application “firm of Govern subjective intent into the inquiry Hobson, F.2d at 737 See Procedure.” Civil officials, cases did not discuss Harlow ment Economou, 438 (citing Butz v. n. 29-30 & 86 essen motive is an unconstitutional in which L.Ed.2d 57 98 S.Ct. U.S. of the claim. tial element however, (1978)). Leatherman, the 895 Harlow, in years after decision Two the “impossible it held that was Supreme Court question not considered this court pleading standard heightened square” a to Wilson, v. in In Hobson Harlow. reached the “lib with Hobson4 one similar (D.C.Cir.1984), 1 U.S.App.D.C. 237 up by set pleading’ system of ‘notice eral denied, U.S. rt. 470 ce — Leatherman, 8(a) U.S. ].” [Fed.R.Civ.P. (1985), held the court 142 L.Ed.2d 85 added). (emphasis at -, 1163 S.Ct. of Govern- that, the motive in which in cases that Rule Further, noted Supreme Court element an essential is ment officials 9(b) of actions exclusive list an contains non- must rest on claim, pleading plaintiffs may be re- pleading particularized support a claim allegations to conelusory of an amend- that, in the absence quired, id., F.2d at motive. unconstitutional Rules, may not re- the courts to the ment “di- distinguish between did 29. Hobson causes of ac- pleading in particularized quire evidence; howev- “circumstantial” rect” and 9(b). Id.; see Fed. Rule tion not listed Hobson, Siegert v. Gil er, years after six 9(b) plead particularized (requiring R.Civ.P. (D.C.Cir.1990), 797, 802 ley, 895 F.2d aff'd mistake). alleging fraud cases 226, 111 S.Ct. grounds, other thus in Leatherman Court’s decision The (1991), panel a different 114 L.Ed.2d 8 and 9 reading of Rules employs a strict pleadings plaintiffs held that court heightened strongly that suggests direct, to circum- opposed provide must square impossible is pleading motive stantial, of unconstitutional evidence invalid.5 Rules, and is therefore a motion dismiss. survive in order to Perez, 751 (quoting Elliott down heightened pleading standard struck 4. " Cir.1985)). (5th plaintiffs required 'that in Leatherman particu detail and complaints state factual suggestion Leatherman majority's 5. The " U.S. at -, - larity basis for claim.' only spoke stan- distinguishable it because added). Thus, Even if (emphasis we assume some form of a stan may pleading requirement be im- dard Hobson was intended to ensure that posed involving qualified eases there was a factual basis for plaintiffs defense, today’s holding still cannot stand. allegations and that Government officials be Nothing reasonably in Hobson can be read to put on specific notice of the claims categorical invoke a distinction between di- them; Hobson was not concerned about the Rather, rect and circumstantial evidence. plaintiffs opposed use of direct as to circum the court in Hobson ruled stantial evidence.6 involving in cases a claim that defendants The court’s later decision in Siegert inex motive, acted with an unconstitutional we plicably characterizes the complaint in Hob- require will that nonconclusory allegations as “an example son allegations of direct pres-

[or] such intent must be improper evidence of complaint ent in a motivation that litigants proceed will overcome a discovery qualified defense of allegations immunity.” on the claim. The extensive, Siegert, on this issue need not be 895 F.2d at A but careful examina sufficiently will have to be precise tion of Hobson reveals that complaint put defendants on notice of the nature of that case referred to provid memoranda that the claim and enable prepare them to ed “direct evidence” of the unconstitutional and, response appropriate, where a sum- only intent of two of the five Hobson defen mary judgment motion on immu- dants; illegal intent of the other three nity grounds. Hobson defendants by established added). strong Hobson, (emphasis 737 F.2d at circumstantial evidence. See Hobson also requires (noting stated that “Harlow F.2d at 8-9 that mere- incriminating ly eonclusory allegations of unconstitutional memoranda were issued defendants Bren motive, Moore, devoid support, must nan and Jones, but not defendants of factual lacking found and dismissed.” at 31 Pangburn).7 Grimaldi and Siegert really If dismiss, Whitacre, dard of Op. Maj. ery”); for motions to see (plaintiff's 890 F.2d at 1171 n. 4 disingenuous. Although 794 n. is the immediately” claim "must be dismissed in ab majority appellants’ chooses to treat motion as sence of direct evidence of unconstitutional in summary judgment, one ing majority's the read tent). effect, therefore, require The net is to precedents of this court's makes clear that it plaintiffs' pleadings higher to meet a threshold strictly reach the same result were this required by than is the Rules — a result (D.C. motion for dismissal. See id. at 793 Cir disparages. Leatherman heightened pleading cuit’s "requir[es] standard pleading specific direct evidence of intent to panel heightened plead 6. The Hobson derived its dismiss”) defeat a (emphasis origi motion to in require standard from the Second Circuit's nal); (citing applying heightened 794 cases pleading particularity rights ment of civil in dismiss, pleading e.g., standard to motions to complaints. provides The Second Circuit's rule Siegert; Davey, Whitacre v. 890 F.2d 1168 "complaints containing only 'eonclusory,' (D.C.Cir.1989), denied, cert. 110 'vague,' ‘general allegations' conspiracy of a (1990)). 111 L.Ed.2d 810 deprive person of constitutional will Moreover, calling plaintiff's burden one of Hobson, (quoting be dismissed.” 737 F.2d at 30 “production" "pleading” rather than draws a Aronwald, (2d v. Ostrer 567 F.2d 553 Cir. distinction without a difference. For the fact 1977)). circuit, plaintiffs remains that alleging in this unconstitutional motive are not afforded dis- Siegert complaint 7. noted "[the ] Hobson re- covery pleadings unless their meet a certain specific admitting ferred to memoranda that the threshold, higher required by than that the Fed- program's express [COINTELPRO-New Left] eral ordinary Rules of Civil Procedure. In the purpose disrupt plaintiffs’ political towas activi- context, 56(f) summary judgment expressly Rule fact, Siegert, only ties." 895 F.2d at 804. In two gives judge the trial broad discretion to order actually of the five Hobson defendants au- discovery prior ruling were summary judgment aon memoranda; motion, incriminating thors of some of the party opposing where the motion the "present the three by cannot other defendants were known to have affidavit facts essential to

justify party's supervisors during opposition....” the been in a the division of FBI Fed.R.Civ.P. 56(f). engaged majority Yet the the time in cases on which the which that division had in relies Hobson, effectively strip judge the trial COINTELPRO activities. See of that discretion. Siegert, (plaintiff "specific plead 895 F.2d at 802 at 8-9. must The memoranda” to which the specific, intent complaint discernible facts or direct referred Hobson had been summa- evidence Report studying "in order to obtain even limited discov- rized in a Senate the Gov- improperly motivat-ed....” were actions as officials’ as it arose to Hobson to adhere meant d., borrowed Martin re- decided, evidence I then the direct it was a trial court language be Siegert in cannot evidence” “direct quirement enunciated be- a “direct categorical had fashioned Maryland, distinction which on a in to rest seen evidence, and out of whole requirement circumstantial pleading direct tween evidence” Siegert be rec- Eichbaum, can F.Supp. pleading standard v. Harris cloth. in Hob- Martin, standard (D.Md.1986), onciled with cited evidence, Siegert can of direct Instead son. lan ill-chosen Although this F.2d at nonconclusory require precise, read to be the direct appears to be source guage or circum- direct supported allegations standard, examination a close evidence intent— of unconstitutional evidence stantial no that there is reveals reasoning in Martin complaint Hob exactly what the bare, (other unexplained than the basis Quinlan, v. See Kimberlin provided. son words) majority Martin to believe (D.D.C.1991) (reasoning that F.Supp. direct, plead require plaintiffs intended to turned on appear to have “does not Siegert circumstantial, of un evidence opposed as circum- between direct the distinction no Certainly, there is motive. constitutional the law of as understood in stantial plucked from language, to elevate this reason evidence, question whether but binding opinion, over court a district something than other had proffered in Hob- court precedent established conclusions, allegations namely tangible mere son. plain- [the corroborative of concrete facts events”). subjective version of the majority own First, tiffs] tellingly, and most However, really meant to Siegert court if the in affirmed an explicitly opinion Martin opposed to circumstantial require direct In its Hobson. remain faithful to tention to adopted evidence, then court to the trial Martin instructed holding, reconciled with Hobson. by Siegert be cannot motion decision on defendants’ defer its plain after the summary judgment until Siegert ma confusion of the apparent discovery8 and had limited tiff obtained meaning of the standard jority over meeting complaint amended presented “an decisions can traced several Hobson Hobson, 737 F.2d set out in the standard aftermath of Hobson. rendered Martin, (emphasis 812 F.2d at 29.” Depart Metropolitan Police Martin D.C. added). Thus, faith purported to be Martin (D.C.Cir.1987), ment, panel pleading standard ful to the present must majority held that id., (quoting Hob at 1434 See also sup Hobson. or circumstantial than inferential “more son, “must plaintiffs F.2d at mo allegation of his unconstitutional port for support for their claim factual ‘produce some is, that the direct evidence That some tive. rehearing granted and vacated the sec- intelligence thereafter domestic activities. ernment's majority opinion that dis- the Martin id., tion of Study 8; see also To at 10 n. Select Comm. limited pleading and allowed standard cussed Operations respect Governmental Intelli- to Metropolitan Police discovery. v. D.C. Martin II, Intelligence gence Activities, Book Activities banc). (en (D.C.Cir.1987) Dep't, S.Rep. No. 94th Rights Americans, 86-93, accompany- Cong., 211-23 and 2d Sess. motion, later denied the court own On its (1976). ing footnotes Bowen, banc, F.2d rehearing en Bartlett banc), (D.C.Cir.1987) (en rein- Martin, primary whether the issue was dissenting opinions. 8. In majority and stated discovery Bartlett, might'obtain limited defendants the debate attached to the statements heightened pleading meeting stan- purpose focuses precedential of Hobson value over dard, secondary height- wording was whether the issue of the and the the formulation not on standard, panel The whether a pleadings case were sufficient. rather on pleading in the but ened discovery discovery strictly could majority permitted limited limited plaintiff held should plead- required meeting heightened plaintiff was purpose be allowed before for the Id., at heightened pleading Hobson. standard. announced in meet the standard id., J., R.B., concurring); strong at Judge (Ginsburg, Starr entered F.2d at 1438. id., J., (Silberman, concurring); at 1249 majority's to allow Martin decision dissent to the Starr, Ginsburg, Id., (Bork, Buckley, & Williams discovery. limited statement). D.H., JJ., joint dissenting in a J., (Starr, dissenting part). The banc court en tent, [of motive] unconstitutional to avert dismiss- his claim must be dismissed immediate- id., ”); (Edwards, J., Id., concurring) ly.” al’ at 1438 at 1171 n. 4. Whitacre has no (noting majority opinion that “the is not un- precedential weight, however, because the Hobson"). teachings faithful to the The rely court that case did not plain- on the logical simply conclusion is that Martin in- tiffs of direct lack evidence when it dis- pleading to restate the tended Hobson re- plaintiffs Id., missed the claim. quirement. certainly, nothing Most there is Siegert majority attempted to summa- replace Martin that shows an intent clarify rize and holdings the court’s in Hob- rigorous Hobson with a more pleading stan- son, Whitacre, but, Martin and doing, so dard. majority mistakenly latched onto the “di- Second, rect evidence” language in Martin was concerned Martin and with the incor- rectly probative concluded quality plaintiffs overall of the evidence at pleading stage, not with its under heightened this court’s pleading

characterization as standard, direct or circumstantial. in order obtain even limited heightened Martin pleading characterized its discovery, [unconstitutional] intent must be standard as a ... pleaded “[limitation [ ] specific, discernible facts or draw,” range may of inferences a trial court proof offers of that constitute direct as (not prohibition as a the trial opposed on court’s merely circumstantial evidence inferences), reliance and illustrated the- of the intent. examples standard with from antitrust cases. Siegert, Indeed, Siegert added). (emphasis at 1435-36 A review majority plaintiff insisted that the must offer of the cited antitrust cases confirms that not impermissible motive, direct evidence of con- one them invokes a distinction between trasting “direct” with “circumstantial” evi- direct and espe circumstantial evidence. See places opinion, dence least two in the cially Spray-Rite Monsanto Co. v. Serv. id., 802, 803, see though even there is no 752, 764, 104 Corp., 465 U.S. foundation for this ei- (1984) (permitting 79 L.Ed.2d 775 “direct or ther Hobson or upon Martin —the two cases support circumstantial" an in Siegert principally relied. added), conspiracy) (emphasis ference of cit- Regrettably, Supreme Court did not Martin, ed in 812 F.2d at 1436. Martin also heightened address the pleading standard plaintiffs] that “[the concluded fact recita- it judgment when affirmed the court’s tions, stand, as insufficiently now are Siegert.9 However, Kennedy specifi Justice probative alleged unconstitutional mo- cally separate wrote in a concurrence that he tive to warrant denial of the [defendants’] “reject ... Appeals’ Court of summary judgment.” motion for 812 F.2d at plaintiff statement that a present must di- (emphasis added); (noting see id. but rect, circumstantial, opposed evidence.” produced that the no direct evi- at -, Siegert, 500 U.S. 111 S.Ct. at 1795 dence of the defendants’ unconstitutional mo- J., (Kennedy, concurring). Instead, Justice tive). say, Needless to this focus on the Kennedy wrote that probative quality of entirely the evidence is require “put standard should pleading consistent with the requirement in specific, noneonclusory forward factual alle- Hobson. malice, gations which establish or face dis- distortion dissent, The of can Hobson also be missal.” In Id. his Justice Marshall Davey, Stevens) traced Whitacre v. 890 (joined F.2d 1168 Justices Blackmun and (D.C.Cir.1989), denied, cert. 497 appeals U.S. also stated that the of court “erred in (1990), 110 S.Ct. holding” L.Ed.2d 810 in plaintiff proffer that a must “direct the opined court incorrectly that Mar- of evidence the unconstitutional motive.” Id., tin at -, (Marshall, J., “made clear that if a failed to 111 S.Ct. at 1800 allege direct evidence of in- dissenting). justices unconstitutional At least three of the Supreme Siegert, The Court affirmed basis that tected the Constitution. 500 U.S. at true, plaintiff’s allegations, the even -, if did not 111 S.Ct. at 1791. any rights pro- state claim for the violation overrule is not free to panel of court made have therefore Supreme Court current subsequent distor- awith original standard evidence that a “direct they believe

plain that require- pleading tion of that standard. is rule” error. binding precedent. See in is ment Hobson in decision Supreme Court’s Following the (Starr, J., Martin, dissent- at 1440 height- application court’s Siegert, this (“Even latter-day if one has part) ing in floundered. has standard pleading ened wisdom, pleading toas Hobson’s doubts Columbia, F.2d District Hunter v. clearly is articulates it so requirement which (D.C.Cir.1991), “[t]he held that panel are bound circuit. We of this the law no requires standard pleading [heightened] it.”). follow story, tell his more than that is al- information relating pertinent III. The Distinction DiRect between Id., (citing at 76 ready possession.” in his EVIDENCE AND CIRCUMSTANTIAL Siegert for anal- dissent Marshall’s Justice Shortly Hunter after ogous support). why this me incomprehensible to It is also Britton, 951 F.2d decided, that com- adopt a test court want Crawford-El — denied, (D.C.Cir.1991), U.S. cert. “di- pleadings on to base their pels plaintiffs (1992), 62, 121 -, L.Ed.2d 29 113 S.Ct. or suffer dismissal —unless rect evidence” of the formulation the Hobson applied court ac- all to eliminate civil court intends refer- without pleading standard heightened As motive. involving unconstitutional tions requirement direct evidence ence to the Harlow, purpose of the noted Andrews v. Id., (quoting at 1317 Siegert.10 out insub- is to winnow immunity defense (D.C.Cir. Wilkins, F.2d discovery they reach before stantial claims 30)). Hobson, 1991) (quoting Harlow, 457 U.S. at and trial. that Hunter had noted also be- But the distinction 2736-38. Crawford-El scope of this circuit’s clarified the evidence is circumstantial tween direct and nothing If pleading standard. likely determining the merits irrelevant else, show that Hunter a claim. Crawfordr-El in this circuit considerable confusion there is probative value indisputable that the It is height- formulation the correct about “intrinsically no evidence is of circumstantial standard. ened evidence,” Holland from testimonial different summarize, heightened pleading To States, 75 S.Ct. v. United Hobson, standard, originally formulated as (1954), can in 99 L.Ed. 150 of “direct evidence” and mention makes no certain, satisfying and “more some cases be of a provide the basis does Michalic evidence.” direct persuasive than direct, opposed requires as 325, 330, Tankers, Inc., 364 U.S. v. Cleveland circumstantial, evi- The “direct evidence. (1960). Circum- 5 L.Ed.2d forms the basis language that dence” high probative can be of stantial thin today out of air majority’s holding arose goes to bed and example, if one quality. For Martin, a district court borrowed ground, and one no there is snow language conjured the likewise opinion that ground, the up find snow on the wakes the “direct evidence” air. While out of thin wholly cir- powerful evidence—albeit snow is with the language in Martin was reconcilable one was it snowed while cumstantial —that standard, subsequent eases such as Hobson can con- Conversely, asleep. direct evidence poured an unin- Siegert Whitacre unreliable something incredible sist language that into significance tended perjurer who testimony of a convicted as the with the stan- fundamentally irreconcilable in- confessed that the defendant asserts dard Hobson. If to him. Kimberlin and motive tent such affida- pleadings with one supported his be- difference Faced an irreconcilable to vit, majority now be standards, constrained a heightened tween two Whitacre, Crawford-El, Mar- 951 F.2d 1317-18. Siegert, and cited 10. Crawford-El tin, to direct evidence. no reference but made

809 -, 287, allow him to continue with his suit. I no see 113 S.Ct. 121 L.Ed.2d 213 why type reason this of direct evidence (1992); Stone, see also United States v. 748 proceed a should suffice to allow (6th 361, Cir.1984) F.2d 362 (ruling that “cir- discovery, strong when circumstantial evi- cumstantial evidence alone can sustain a pattern of a dence of conduct that over- guilty so, verdict and that to do circumstan- whelmingly supports an inference that tial evidence need every not remove reason- defendants acted with unconstitutional mo- hypothesis except able guilt”). prof- tive—evidence that Kimberlin has If circumstantial prove evidence suffices to fered —would not. Redress violations of beyond surely intent a the Constitution should not reasonable doubt in rest on a crimi- trial, flimsy such distinctions. nal it certainly satisfy should this court’s well-recognized It is also in almost Indeed, civil case. require plaintiffs motive, any involving claim a defendant’s plead direct evidence of intent require is to typically by state of mind is established cir plaintiffs provide more evidence at the cumstantial difficulty evidence because of the pleading stage required than is to win the obtaining direct evidence of motive.11 In Crutcher, cases, case at trial. See example, criminal where 883 F.2d at 504 the bur proof considerably higher (rejecting den of is requirement than in a direct evidence be- suit, Bivens this court and recog others have cause require plaintiff it would “to come forth may, must, nized that generally “[i]ntent and with more evidence than she would have to proved circumstantially; be normally, the produce prevail merits”); see also probable consequences natural may of an act Douds, American Communications Ass’n v. satisfactorily evidence the state of mind ac- 382, 411, 674, 690, 339 U.S. 70 S.Ct. 94 L.Ed. companying Jackson, it.” United States v. (1950) 925 (noting that juries “courts and 456, (D.C.Cir.1975) (footnotes 513 F.2d 461 every day pass upon knowledge, belief and omitted).12 distinguish Nor does this court ... having intent before them no more than between direct and circumstantial evidence conduct, evidence of their words and from evaluating sufficiency when of the evi- which, ordinary experience, human mental dence a criminal ease. United States v. inferred”). may condition be Kwong-Wah, 298, Lam 924 F.2d 303 (D.C.Cir.1991) (“No recognized Given difficulty proving distinction is made be- by evidence, intent tween direct and direct the effect circumstantial evidence in of a evaluating sufficiency sup pleading requirement of evidence direct evidence will be — verdict.”), porting guilty denied, prevent cert. overcoming N.A., England, United States v. Bank susceptible proof; New proved of direct it must be 844, (1st Cir.) (“Willfulness circumstances.”) (footnote omitted), 821 by F.2d 854 can cert. de evidence, nied, 966, rarely 271, proven by direct since it is a 409 U.S. 93 S.Ct. 34 L.Ed.2d 232 mind; (1972); Charles usually by state of it is 2 established draw- A. Wright, Federal Practice and (2d 1982) § (“Though reasonable inferences from the ed. available circum- Procedure facts.”), denied, 943, virtually every cert. stantial evidence is used in crimi- case, (1987); nal Scully, 98 L.Ed.2d 356 there are certain Mallette v. kinds cases and (2d Cir.1984) ("Because indispensable, issues on which it is almost be- intent is ..., unlikely secrecy cause it is so formed in the mind direct evidence will be silence available. These include such matters as the determination of whether a deliberate intent was intent, conspiracy, existence of a formed must criminal be drawn from all the circum- mind.”) (footnotes involving other issues omitted); state of stances of the case. Circumstantial evidence of H. subjective indispensable.”); fact is therefore Wigmore, John Evidence Trials (Chadbourn §§ (7th Pope, rev. United States v. Cir.1984) ("Proof Common 739 F.2d Law 1979) (intent, belief, knowledge, requisite state of state of mind may evidence; mind be evidenced external circum- may need not be direct it be in- conduct). stances defendant’s surrounding ferred from the stances.”); facts and circum- Hudson, United States 717 F.2d (8th Cir.1983) ("Willfulness, intent Maggitt, 12. See United also States v. 784 F.2d guilty knowledge may (5th proven by Cir.1986) (same); also be United States v. frequently Harris, (7th Cir.1977) circumstantial evidence and (same); cannot be 558 F.2d proven way."); White, (10th other United States v. United States v. 557 F.2d Childs, (4th Cir.) ("Intent Cir.1977) curiam) (same). (per Harlow, 457 U.S. liability. litigation and of except in the immunity defense qualified And, be- at 2735-36. 102 S.Ct. In Hob- extraordinary circumstances. most requirement effec- the direct in- cause evidence “intensive” 15-month son, example, a for rights civil class tively precludes an entire of of the Committee by a Select vestigation the claims, flat contradiction it stands in up evi- direct turned Senate States United itself, of Bivens which reaffirmed dictates five Hobson defendants two dence that “ very of civil liber- essence ‘[t]he notion plaintiffs’ to violate with intent had acted every of Study certainly right in the ty consists rights. civil To Comm. Select laws, protection of the to claim supra note individual Operations, GOVERNMENTAL ” Bivens, injury.’ an Operations he Military at whenever receives Foreign I, Book (quoting at 2005 91 S.Ct. 403 U.S. requirement has III. If a direct evidence Cranch) (1 Madison, however, Marburg v. 5 U.S. Hobson, the com- applied in been (1803)). As both Justice 163, 2 L.Ed. three de- the other brought against plaints in indicated Kennedy Marshall lack Justice for have been dismissed would fendants ... a [direct Siegert, there is “no warrant supra note intent. See of of direct evidence precedent a matter of rule as evidence] text. accompanying 6 and at -, Siegert, 500 U.S. common sense.” effect in recognized this Marshall Justice (Marshall, J., dissenting); at 1801 Siegert. in Justice dissenting opinion his (Kennedy, id., at -, J. at 1795 evidence of “[b]ecause Marshall wrote (“Circumstantial may concurring) evidence peculiarly within is intent [unconstitutional] evidence.”). testimonial probative as be defendant, ‘heightened of control Ap- of employed the Court rule pleading’ CONCLUSION IV. action Bivens effectively precludes peals prescient, all too an admonition is an state of mind defendant’s in which panel the court cautioned Hobson Siegert, underlying claim.” element of pleading requirement heightened applying its at -, 111 S.Ct. at 1800-01 in the dismissal rigidly, lest result too it circuits (Marshall, J., dissenting). Two other Hobson, F.2d at 30- claims. meritorious wisely rejected a happened in exactly what has But this is requires direct evidence sight of what must not lose case. We this Branch, F.2d at 1386- very reason. this the United happened here. A citizen of has (“Because largely of intent is he had the media that suggested to States often defendant and control of

within the about the candidate damaging information discovery, through we only can be obtained position in second-highest executive for the present require a unwilling to are days the elec- democracy. Just before our in intent of that order direct evidence tion, placed “administrative Elliott, he was twice dismissal.”); at 345 avert effectively detention,” preclud- he was where intent (“Requiring ‘direct’ evidence story an under- sharing his ed from case in which the rare fatal all but might standably While we confessed.”); curious media. Siegert, see also defendant eye- C.J., raise (Wald, dissenting part) expect such action official F.2d at 806 guarantees of (“The evi- with fewer requiring specific, country direct brows policy in- is liberty, unconstitutional such action unfathomable civil dence defendant’s system all cases tent, applied country our constitutional unflinchingly under when immunity imagine simply defense I cannot of government. raised, fide and shut effectively judiciary off both bona will cuts of the United States suits.”). refuse of the courthouse and ill-motivated the doors proceed for the Kimberlin’s suit allow effectively pre- standard that A complaint is based specious reason that uncon- that involve Bivens actions cludes all circumstantial evidence. cynical perversion motive is stitutional balance responsibility to strike a I this court’s dissent. resolving the “evils inevitable” between shutting out evil of questions —the claims, and the evil civil

meritorious to the burdens

exposing officials Government Exh. 4 notes concerned about what the told her he “was documenting made Kim- staff seven calls him,” might Department do to denied Justice detention); during berlin on November “quoted saying Kimberlin as his life having 7, 1988 Memorandum of T.C. November danger.” November 1990 Declara was in Quinlan (referring to Martin to J. Michael Reporter at 2. him of Radio Kimberlin tion tapes” containing “copies of cassette “[s]even having “perceived” or “ex self denied ever telephone conversation Brett Kimber- “fears that other inmates would pressed” personnel, lin numerous news media Declaration at 3.13 harm Kimberlin [him].” friends”); family and Sabol Letter at 3 motion, Assuming, must on this as we (“Kimberlin reporter spoke to the radio of her conversa reporter’s recollection Saturday, while “again on November relay correct and that she did not tions is detention”). Further, he was still Miller, Department fear of the timing of Miller’s and tenor conversations merely disputes descrip account Miller’s her Bush/Quayle any campaign belie conversations, with the without contra tion of their influence from that source. Because there is Quinlan dicting the affirmative evidence attempted to no evidence that Miller of information direct ordered the detention because Quinlan detention or that safety, secure Kimberlin’s regarding Kimberlin’s whether or not conveyed, reason other than Kimberlin’s accurately that he received from did so importantly, safety, none of evi we conclude the district court erred Miller.14 More

Case Details

Case Name: Brett C. Kimberlin v. Michael J. Quinlan

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Oct 8, 1993

Citation: 6 F.3d 789

Docket Number: 91-5315

Court Abbreviation: D.C. Cir.