CHARLES JACKSON, Plaintiff-Appellee, v. CITY OF CLEVELAND, et al., Defendants, BARBARA RHODES MARBURGER, Defendant-Appellant.
No. 22-3253
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 6, 2023
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 23a0065p.06. Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:21-cv-01679—J. Philip Calabrese, District Judge. Argued: December 8, 2022. Before: MOORE, STRANCH, and MURPHY, Circuit Judges.
COUNSEL
ARGUED: Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellant. M. Caroline Hyatt, FRIEDMAN, GILBERT & GERHARDSTEIN, Cincinnati, Ohio, for Appellee. ON BRIEF: Stephen W. Funk, ROETZEL & ANDRESS, LPA, Akron, Ohio, for Appellant. M. Caroline Hyatt, Jacqueline Greene, FRIEDMAN, GILBERT & GERHARDSTEIN, Cincinnati, Ohio, Sarah Gelsomino, FRIEDMAN, GILBERT & GERHARDSTEIN, Cleveland, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court in which STRANCH, J., joined, and MURPHY, J., joined in part. MURPHY, J. (pp. 20–26), delivered a separate opinion concurring in part and concurring in the judgment.
KAREN NELSON MOORE, Circuit Judge. Charles Jackson filed a
I. BACKGROUND
In 1991, Charles Jackson was wrongfully convicted of murder and was sentenced to twenty years to life in prison. R. 1 (Compl. ¶¶ 56–57, 79–81) (Page ID #10, 13). The Ohio Eighth District Court of Appeals upheld his conviction on appeal. Id. 58 (Page ID #10). Between 1996 and 2013, Jackson made multiple attempts to have his conviction set aside and his sentence vacated, but each time he was denied relief. Id. ¶¶ 59–61 (Page ID #10). Eventually, the Ohio Innocence Project became involved in his case. Id. ¶ 62 (Page ID #10).
In February 2016, pursuant to the Ohio Public Records Act, the Ohio Innocence Project requested from the Cleveland Division of Police (CDP) documents relating to the investigation of Joe Travis‘s murder and the arrest of Charles Jackson. Id. 63 (Page ID #11). It received no response. In June 2016, the Innocence Project renewed its request to CDP and filed a new records request with the Cleveland Law Department. Id. ¶¶ 63–65. In August 2016, the Innocence Project sent another records request, this time to the Cuyahoga County Prosecutor‘s Office.
The Ohio Public Records Act exempts “investigatory work product” and “[t]rial preparation record[s]” from production as public records.
In May 2017, nine months after Marburger‘s production of redacted records, the
In May 2018, the Ohio Innocence Project filed a Petition for Post-Conviction Relief and a Motion for Leave to File a Motion for New Trial on Jackson‘s behalf. Id. ¶ 79 (Page ID #13). In these materials, Jackson relied upon the exculpatory information that Marburger had redacted from the investigative file in the Cuyahoga County Prosecutor‘s Office‘s initial production. In November 2018, a state-court judge vacated Jackson‘s conviction and released Jackson from custody on bond. Id. ¶ 80 (Page ID #13). In August 2019, the State moved to dismiss the charges against him, and he was finally exonerated. Id. ¶ 81 (Page ID #13).
Jackson filed a lawsuit in the U.S. District Court for the Northern District of Ohio in August 2021 against the City of Cleveland, a number of CDP officers and supervisors, Cuyahoga County, and Assistant Prosecuting Attorney Barbara Marburger. R. 1 (Compl. ¶¶ 7–14) (Page ID #3–5). He made claims under
Marburger filed a motion to dismiss in the district court. R. 11 (Marburger Mot. to Dismiss at 1) (Page ID #126). She argued that she was entitled to absolute immunity for her role in redacting the exculpatory information. Id. at 6–8 (Page ID #136–38). She further argued that she was entitled to qualified immunity. Id. at 8–20 (Page ID #138–50). Finally, she argued that Jackson‘s claim was barred by the statute of limitations. Id. at 20 (Page ID #150). The district court denied her motion to dismiss. Jackson v. City of Cleveland, 586 F. Supp. 3d 737, 754 (N.D. Ohio 2022). It reasoned that when Marburger responded to the public-records request, there were no legal proceedings pending, and that “[r]esponding to a public records request is not ‘intimately associated with the judicial phase of the criminal process’ sufficient to confer absolute immunity.” Id. at 747. Marburger had argued that because Jackson‘s counsel had made the records request, Marburger knew that Jackson was engaged in “a form of post-conviction advocacy that entitle[d] her to absolute immunity.” Id. The district court found that because there were no proceedings pending at the time of the records
The district court then evaluated Marburger‘s claim of qualified immunity. It found that Jackson had made out a plausible claim for denial of access to the courts, which requires a showing that: “(1) Plaintiff had a nonfrivolous underlying claim; (2) State actors took obstructive actions, (3) those actions caused substantial prejudice to the underlying claim, for which a State court cannot provide a remedy; and (4) Plaintiff would have sought relief on the underlying claim that is otherwise now unattainable.” Id. at 748, 749. The district court found that Jackson had alleged the underlying causes of action to which he had allegedly been denied access: motions for a new trial and petitions for postconviction relief that he had lost between 1991 and 2013. Id. at 749. The district court also rejected Marburger‘s argument that Jackson did not permanently lose his remedies because he obtained relief when the state acquiesced in his motion for a new trial and eventually dismissed the charges. Id. The district court reasoned that this argument confused backward- and forward-looking claims. Id. It dismissed Marburger‘s argument that damages recoverable against the other defendants would adequately compensate Jackson for his delayed release and exoneration, concluding that Jackson‘s “claims against Ms. Marburger and the County seek to vindicate different rights and interests than those against the other Defendants. As a result, the damages flowing from these alleged harms differ.” Id. The district court then considered whether Jackson needed to exhaust his state-court remedies before bringing an access-to-the-courts claim and concluded that he was not required to do so, distinguishing Jackson‘s case from Swekel v. City of River Rouge, 119 F.3d 1259 (6th Cir. 1997). Jackson, 586 F. Supp. 3d at 749–50.
The district court next considered whether Jackson‘s right of access to the courts was clearly established. Id. at 750–51. It distinguished cases requiring plaintiffs to show previous Sixth Circuit or Supreme Court cases with similar fact patterns on the ground that they “involve[d] police officers responding in a matter of moments to life-threatening situations.” Id. It concluded that because Marburger “took nearly two months to respond” to the records request and “had time to consider whether withholding exculpatory information might violate Jackson‘s rights or prejudice his efforts at exoneration” Jackson had stated a plausible claim that Marburger had knowingly violated his clearly established constitutional rights. Id. at 751.
Finally, the district court considered whether the fact that Marburger redacted the investigative file pursuant to Ohio state law entitled her to qualified immunity. It determined that this issue was not a “pure legal question[] capable of neat resolution at the pleading stage,” and it saw “no reason to deviate from the general rule in this Circuit that qualified immunity is best decided at summary judgment.” Id. Marburger filed this timely interlocutory appeal.
II. JURISDICTION
The courts of appeals have appellate jurisdiction over “final decisions of the district courts.” Mitchell v. Forsyth, 472 U.S. 511, 524 (1985) (quotation marks omitted). Though denials of motions to dismiss are often non-final orders, “under the collateral-order doctrine a ‘limited set of district-court orders are reviewable’ even though they are ‘short of final judgment.‘” Cahoo v. SAS Analytics Inc., 912 F.3d 887, 896 (6th Cir. 2019) (quoting Peatross v. City of Memphis, 818 F.3d 233, 239 (6th Cir. 2016)). Included in these collateral orders are “a district court‘s denial of a defendant‘s motion for dismissal or summary judgment on the grounds of absolute immunity or qualified immunity ‘to the extent that it turns on an issue of law.‘” Watkins v. Healy, 986 F.3d 648, 658 (6th Cir. 2021) (quoting Forsyth, 472 U.S. at 530). We therefore have appellate jurisdiction over the district court‘s denial of Marburger‘s motion to dismiss based on absolute and qualified immunity.
III. ANALYSIS
A. Standard of Review
We review de novo a defendant‘s claims that they are entitled to absolute or qualified immunity. Spurlock v. Thompson, 330 F.3d 791, 796 (6th Cir. 2003); Watkins, 986 F.3d at 660. At the motion-to-dismiss stage, a plaintiff‘s “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We must “construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and draw all reasonable inferences in [the plaintiff‘s] favor.” Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 440 (6th Cir. 2020).
B. Absolute Immunity
Prosecutors receive absolute immunity from suit for conduct in initiating and pursuing criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). Absolute immunity is the exception to the general presumption that qualified immunity “is sufficient to protect government officials in the exercise of their duties.” Burns v. Reed, 500 U.S. 478, 486–87 (1991). When determining whether a prosecutor‘s actions should be shielded by such an expansive grant of immunity, we apply a functional approach that “looks to ‘the nature of the function performed, not the identity of the actor who performed it.‘” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Officials seeking the protection of absolute immunity bear the burden of showing that absolute immunity is justified and that “qualified immunity does not suffice.” Stockdale v. Helper, 979 F.3d 498, 502 (6th Cir. 2020); Buckley, 509 U.S. at 269.
In our circuit, “[t]he critical inquiry is how closely related is the prosecutor‘s challenged activity to [their] role as an advocate intimately associated with the judicial phase of the criminal process.” Howell v. Sanders, 668 F.3d 344, 349–50 (6th Cir. 2012) (quoting Ireland v. Tunis, 113 F.3d 1435, 1443 (6th Cir. 1997)); see also Prince v. Hicks, 198 F.3d 607, 611 (6th Cir. 1999). When a prosecutor performs administrative or investigatory functions that “do not relate to an advocate‘s preparation for the initiation of a prosecution or for judicial proceedings,” they are “not entitled to absolute immunity.” Prince, 198 F.3d at 611 (quoting Buckley, 509 U.S. at 273). But administrative actions that are “directly connected with the conduct of a trial” are protected by absolute immunity. Van de Kamp v. Goldstein, 555 U.S. 335, 344 (2009). Therefore, “we must identify precisely the wrongful acts” that a prosecutor has taken and “classify those acts according to their function.” Adams v. Hanson, 656 F.3d 397, 403 (6th Cir. 2011). We must also take into consideration the timing of the actions taken: “[W]here the [prosecutor‘s] role as advocate
The act in question here is Barbara Marburger‘s response to the Ohio Innocence Project‘s public-records request and her redaction of exculpatory information in the Cuyahoga County Prosecutor‘s Office‘s file on Jackson. This is an administrative task that is not closely related to “an advocate‘s preparation for the initiation of a prosecution or for judicial proceedings.” Prince, 198 F.3d at 611 (quoting Buckley, 509 U.S. at 273). Marburger has provided no historical or common-law support for her argument that responding to a records request after the conclusion of a trial should be protected by absolute immunity. And, as the district court found significant, there was no trial or other ongoing judicial proceeding at the time the records request was filed; Jackson‘s most recent attempt at having his conviction overturned had concluded in 2013. Marburger never took on a role as an advocate in a judicial proceeding related to Jackson.
Marburger contends that absolute immunity shields prosecutors from liability for failure to disclose exculpatory evidence “in connection with a criminal proceeding,” Appellant Br. at 46, and that under state law at the time, such a proceeding extended until the completion of a defendant‘s sentence, id. at 48. Notwithstanding any provisions of Ohio law, Marburger fails to cite any case indicating that a criminal proceeding in the federal courts extends from the moment of indictment to the moment an individual is released from incarceration. She also misstates the law in our circuit; we have held that “absolute immunity protects a prosecutor from civil liability for the non-disclosure of material exculpatory evidence at trial.” Koubriti, 593 F.3d at 470 (emphasis added). The Sixth Circuit has extended absolute immunity for adversarial acts of prosecutors past the trial context in some circumstances, but those circumstances are limited to “post-conviction proceedings, including direct appeals, habeas corpus proceedings, and parole proceedings, where the prosecutor is personally involved in the subsequent proceedings and continues [their] role as an advocate.” Spurlock, 330 F.3d at 799 (emphasis added). To be protected by absolute immunity in both the trial and postconviction contexts, a prosecutor must be acting as an advocate in a judicial proceeding. Marburger was not acting as an advocate when she responded to the Innocence Project‘s records request. The fact that Jackson‘s investigative file was ultimately used
We also find unconvincing Marburger‘s arguments that she ought to be treated the same as a prosecutor representing the government in a postconviction proceeding would have been. She contends that, at the time of the Innocence Project‘s records request, the Ohio Public Records Act required incarcerated individuals to file a motion with their sentencing judge to obtain a copy of public records relevant to a justiciable claim, and that if Jackson had done so, his request could have been considered by a prosecutor acting as an advocate in his criminal case and entitled to absolute immunity. Appellant Br. at 48–49; see also
C. Qualified Immunity
We next consider Marburger‘s claim of qualified immunity. Qualified immunity protects public officials from civil liability for damages when their conduct does not violate the plaintiff‘s “clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In order to overcome a defendant‘s qualified immunity defense, ‘a plaintiff must plausibly allege facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.‘” Moderwell v. Cuyahoga County, 997 F.3d 653, 659–60 (6th Cir. 2021) (quotation marks omitted) (quoting Marvaso v. Sanchez, 971 F.3d 599, 605 (2020)). We may address these questions in any order. Cahoo, 912 F.3d at 897.
“[I]t is ‘generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.‘” Siefert v. Hamilton County, 951 F.3d 753, 761 (6th Cir. 2020) (quoting Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)). “Although an officer‘s ‘entitlement to qualified immunity is a threshold question to be resolved at the earliest possible point,’ that point is usually summary judgment and not dismissal under Rule 12.” Hart v. Hillsdale County, 973 F.3d 627, 635 (6th Cir. 2020) (quoting Wesley v. Campbell, 779 F.3d 421, 433–34 (6th Cir. 2015)). This is because “‘[i]t is often perilous to resolve a Rule 12(b)(6) motion on qualified immunity grounds’ because
1. Violation of Constitutional Rights
Plaintiffs with nonfrivolous legal claims have a constitutional right to access the courts to bring those claims. Christopher v. Harbury, 536 U.S. 403, 414–15 & n.12 (2002). Jackson brought a backward-looking access-to-courts claim, in which he alleged that Marburger barred his access to the courts by concealing exculpatory evidence so that he could not obtain an adequate remedy for his underlying postconviction or habeas relief claims in state and federal courts. R. 1 (Compl. at ¶¶ 315–30) (Page ID #54–55). This claim has four elements: “(1) a non-frivolous underlying claim; (2) obstructive actions by state actors; (3) ‘substantial[ ] prejudice’ to the underlying claim that cannot be remedied by the state court; and (4) a request for relief which . . . is now otherwise unattainable.” Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013) (citations and quotations omitted). On appeal, Marburger argues that Jackson has not satisfied only the final two elements. Appellant Br. at 31.2
A plaintiff “must show actual injury” or prejudice to their underlying claim when stating a claim for interference with access to the courts. Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005); see also Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). If the obstructive action occurs before the plaintiff can file their claim, they “must establish that such abuse denied [them] ‘effective’ and ‘meaningful’ access to the courts.” Swekel, 119 F.3d at 1263 (quoting Bounds v. Smith, 430 U.S. 817, 822 (1977)). A plaintiff can do so by showing that the defendant‘s actions prevented plaintiff “from filing suit in state court or rendered ineffective any state court remedy [plaintiff] previously may have had.” Id. at 1263–64. We have identified “having a case dismissed, being unable to file a complaint, and missing a court-imposed deadline” as some examples of actual prejudice to pending or contemplated litigation. Harbin-Bey, 420 F.3d at 578.
Jackson has plausibly stated “‘substantial[ ] prejudice’ to [his] underlying claim that cannot be remedied by the state court.” Flagg, 715 F.3d at 174 (quoting Swekel, 119 F.3d at 1264). The concealment of exculpatory information deprived
Marburger redacted the investigative file and delivered the redacted file to the Innocence Project in August 2016. Jackson ultimately received the unredacted file from the City of Cleveland in May 2017—nine months later—and then filed a petition for a new trial, after which his conviction was vacated and he was released from prison in November 2018. Had Marburger sent Jackson an unredacted file, he could have applied for postconviction relief and been released approximately nine months earlier. Marburger‘s actions “effectively cover[ed]-up evidence” and temporarily “foreclosed [Jackson] from filing suit in state court,” because her concealment “render[ed] [his] state court remedy ineffective.” Swekel, 119 F.3d at 1262, 1264. Marburger thus caused Jackson substantial prejudice on his postconviction relief claims.
Even if, as Marburger contends, Jackson could have filed an action before his sentencing judge seeking release of the records, the state court cannot turn back time. The state court must be able to remedy the “‘substantial[ ] prejudice’ to the underlying claim,” not the obstructive action. Flagg, 715 F.3d at 174 (quoting Swekel, 119 F.3d at 1264). Though the state courts could have, after State ex rel. Caster v. Columbus, issued a writ of mandamus requiring Marburger to produce the unredacted file, or the state sentencing judge could have ordered the production of the unredacted file, they could not have remedied the delay of his postconviction filing. Thus, there is no procedure that could “remedy the wrong alleged.” Green, 925 F.3d at 288 (Murphy, J., concurring) (quoting Swekel, 119 F.3d at 1265).
To be sure, a previous panel of the Sixth Circuit suggested in a brief unpublished and nonbinding decision that delay alone does not substantially prejudice an underlying claim, Winburn v. Howe, 43 F. App‘x 731, 734 (6th Cir. 2002). But Jackson did not suffer only delay—he also suffered the injury of prolonged wrongful incarceration as a result of delay. In Winburn, the plaintiff complained of a lost or destroyed habeas petition. But his habeas petition was eventually considered on the merits and denied by a federal district court, and he was unable to show that earlier consideration of his petition would have produced a different result. Winburn, 43 F. App‘x at 734. The delay did not injure Winburn or his claims. Id. The panel in Winburn was not presented with the question of whether the plaintiff could have shown prejudice if his habeas petition had been granted on the merits, and other circuits have not been presented with this issue, either. In Waller v. Hanlon, 922 F.3d 590 (5th Cir. 2019), the Fifth Circuit held that delay of an excessive-force claim caused by police obstruction did not “cost” the plaintiffs
Finally, Jackson has requested “a remedy that could not be obtained on an existing claim.” Harbury, 536 U.S. at 421. In Harbury, when dismissing the plaintiff‘s access-to-courts claim, the Supreme Court reasoned that the plaintiff “ha[d] not explained, and it is not otherwise apparent, that she can get any relief on the access claim that she cannot obtain on her other tort claims.” Id. at 422. The Harbury Court went on to say that her “access claim cannot address any injury she has suffered in a way [that her] presently surviving intentional-infliction claims cannot . . . .” Id. That was because in Harbury, the plaintiff had a surviving intentional-infliction claim against the CIA defendants. Id. at 409, 410, 412. Importantly, the underlying claim that she asserted had been compromised as a result of the State Department‘s obstruction was an intentional infliction of emotional distress claim against the CIA, the very same claim that was presently pending against the CIA—though, of course, she was no longer able to seek an injunction, as she claimed she would have.3 She could thus still obtain the “single payment for the harm caused by her husband‘s death,” Concurrence at 25, that she sought from the federal government through her existing intentional-infliction claim against the CIA, and therefore there was no different remedy available to her.
Jackson‘s case is distinct from Harbury‘s in several ways. First, Jackson‘s surviving § 1983 claims against the City of Cleveland and the defendant officers are not the same claims as the postconviction relief petition that Marburger obstructed. A postconviction petition for relief is different in kind from a damages claim, even if they are derived from the same Brady violations. Second, as the district court correctly noted, Jackson‘s access-to-courts claim seeks redress for a different wrong than his Brady claims against the individual police officers and the City of Cleveland. His claim against Marburger seeks recompense for his inability to file a petition for postconviction relief for nine additional months as a result of her obstructive actions in 2016. His claims against the city and its officers seek compensation for the officers’ wrongdoing in 1991 and of course for Jackson‘s resultant twenty-seven years of wrongful imprisonment. If Jackson‘s claims were ultimately vindicated, Marburger and the defendant officers would each
Another panel of this court offered a different rule for this fourth prong of a backward-looking access-to-courts claim, stating that the plaintiff must request “relief which the plaintiff would have sought on the underlying claim and is now otherwise unattainable.” Flagg, 715 F.3d at 174 (emphasis added). But the holding in Flagg was based on the plaintiff‘s failure to satisfy the third prong, substantial prejudice, id. at 178–79, and therefore its discussion of the fourth prong is dicta and does not bind this panel. Harbury contemplates that in a backward-looking access-to-courts claim a plaintiff could seek relief that could not be obtained otherwise, not that the plaintiff must specifically request the relief they would have received in the lawsuit they were unable to file as a result of the denial of access to the courts. Harbury, 536 U.S. at 421–22 & nn.21, 22. Specifically, the Supreme Court explained that the plaintiff in Harbury could not maintain a cause of action for denial of access to the courts because the district court had not dismissed her tort claims against the defendants and she could still seek monetary damages on those claims, and therefore she had not shown “that she can get any relief on the access claim that she cannot obtain on her other tort claims, i.e., those that remain pending in the District Court.” Harbury, 536 U.S. at 422. The Court went on to note that “[t]his might not be the case where, for example, the underlying claim had been tried or settled for an inadequate amount given official deception . . . and thus likely barred by res judicata, or where the statute of limitations had run.” Id. at 422 n.22 (citations omitted). This important context from the Harbury opinion makes clear that Flagg‘s statement of the fourth prong of an access-to-courts claim is too narrow, and that the correct inquiry is whether the plaintiff has requested “a remedy that could not be obtained on an existing claim,” Harbury, 536 U.S. at 421, rather than “relief which the plaintiff would have sought on the underlying claim and is now otherwise unattainable,” Flagg, 715 F.3d at 174 (emphasis added). In other words, Jackson does not need to seek release from prison on his access-to-courts claim because that is the relief that was denied to him. He can instead seek damages from Cuyahoga County and from
2. Clearly Established Law
We next consider the second prong of qualified immunity, which asks whether the right that has been violated was clearly established, meaning that “every reasonable official would [have understood] that what he is doing violates that right.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in Anderson); see also Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). The Supreme Court has often “stressed that courts must not ‘define clearly established law at a high level of generality, since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.‘” District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)). A rule is too general “if the unlawfulness of the officer‘s conduct ‘does not follow immediately from the conclusion that [the rule] was firmly established.‘” Id. (quoting Anderson, 483 U.S. at 641). Nevertheless, an official “can still be on notice that their conduct violates established law even in novel factual circumstances. . . . Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier, 520 U.S. 259, 268 (1997)); see also Al-Kidd, 563 U.S. at 741; cf. Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (per curiam) (vacating and remanding a Fifth Circuit decision granting qualified immunity because no reasonable official could have concluded that it was permissible to house a prisoner in deplorably unsanitary conditions for six days even though there was no previous case directly on point). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” White v. Pauly, 580 U.S. 73, 79 (2017) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)).
The district court found that the Sixth Circuit had recognized backward-looking access-to-courts claims and defined the elements of the claim with particularity, thus making it beyond debate that restricting an individual‘s access to the courts is a constitutional violation. Jackson, 586 F. Supp. 3d at 750. It rejected Marburger‘s argument that, based on Arrington-Bey v. City of Bedford Heights, 858 F.3d 988 (6th Cir. 2017), Jackson was required to identify a specific case with a similar fact pattern. Id. at 750–51. The district court reasoned that in contrast to those officers, Marburger had at least several weeks to consider whether redacting the substantive information from Jackson‘s file would violate his rights. Id. at 751. It concluded that Jackson had stated a claim that Marburger knowingly violated Jackson‘s rights. Id.
At the time of Marburger‘s actions, it was clearly established that “if a
The contours of this right must be “clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at 590. The Supreme Court has repeatedly urged the courts of appeals that general principles can clearly establish law only in obvious cases, see, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021); Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018); Wesby, 138 S. Ct. at 590, and has criticized the courts of appeals for citing cases “too factually distinct to speak clearly to the specific circumstances,” Mullenix, 577 U.S. at 18; see also City of Tahlequah v. Bond, 142 S. Ct. 9, 11–12 (2021). The question then becomes whether the principle outlined in Spurlock and Swekel is sufficiently specific or whether the facts of those cases are sufficiently similar that every reasonable official in Marburger‘s position would know that concealing exculpatory information by redacting the investigative file violated Jackson‘s right of access to the courts. Swekel refers to two examples of situations in which officials engaged in cover-ups that constitute violations of the right of access to the courts: one in which police officers concealed a murder by one of their officers, and one in which prosecutors covered up the fact that a murder had occurred and that one of their fellow prosecutors was the murderer. Swekel, 119 F.3d at 1262. And the court in Swekel denied the plaintiff‘s access-to-courts claim because she had not shown that the defendants’ actions had rendered her state-court suit ineffective. Id. at 1264. Spurlock is closer; it considered a prosecutor who engaged in obstructive actions and to whom the Sixth Circuit denied qualified immunity. That prosecutor, however, engaged in egregious conduct that included coercing witnesses to maintain false testimony and concealing evidence that would have revealed a wrongful conviction. Spurlock, 330 F.3d at 798–801, 801 n.3.
The rule set out in Swekel and Spurlock, that a violation of the right of access to the courts occurs when an official “engages in actions that effectively cover-up evidence, thereby rendering a plaintiff‘s court remedy ineffective,” Spurlock, 330 F.3d at 801 n.3, is too general. “[T]he unlawfulness of [Marburger‘s] conduct ‘does not follow immediately from the conclusion that [the rule is] firmly established.‘” Wesby, 138 S. Ct. at 590 (quoting Anderson, 483 U.S. at 641). We do not believe that every reasonable official would conclude that redacting exculpatory information included in a response to a public-records request constitutes “actions that effectively cover-up evidence” on par with coercion of witnesses or concealment of a murder. The Sixth Circuit had never considered an access-to-courts claim based on redaction in a response to a public-records request, and a reasonable official, considering the legal landscape at the time, could conclude that they would not be violating constitutional or statutory law by redacting exculpatory information from a response to a public-records request. Marburger did not
IV. CONCLUSION
We hold that Marburger is not entitled to absolute immunity for redacting Jackson‘s investigative file in response to the Ohio Innocence Project‘s records request because she performed an administrative function that is not intimately connected with judicial proceedings. We also hold that Jackson has plausibly alleged that Marburger violated his right of access to the courts by redacting exculpatory material from the investigative file and thereby stymieing his efforts to file a petition for postconviction relief. But it was not yet clearly established in 2016 that redacting exculpatory information from a response to a public-records request would violate the right of access to the courts, and therefore we must grant qualified immunity to Marburger. Accordingly, we REVERSE the district court‘s order denying qualified immunity.
CONCURRENCE
MURPHY, Circuit Judge, concurring in part and concurring in the judgment. In 1991, Charles Jackson was wrongfully convicted of murdering a man in Cleveland, Ohio. According to Jackson, Cleveland police officers intentionally failed to produce exculpatory information at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). Decades later, Jackson‘s case file in the Cuyahoga County Prosecutor‘s Office still contained the exculpatory information. He alleges that the Ohio Innocence Project asked for this file in 2016 using Ohio‘s public-records laws. Barbara Marburger, a former assistant
But I part ways with my colleagues’ conclusion that, apart from this qualified-immunity defense, Jackson‘s complaint stated a viable access-to-courts claim against Marburger. As I have noted, this “nebulous” claim “remains a work in progress.” Green v. City of Southfield, 925 F.3d 281, 287–89 (6th Cir. 2019) (Murphy, J., concurring) (citation omitted). The Supreme Court has merely assumed the claim‘s existence. See Christopher v. Harbury, 536 U.S. 403, 414 n.9 (2002). And circuit courts have had trouble even pinpointing its constitutional source. Is it the First Amendment right to “petition the Government for a redress of grievances“?
Because courts remain unsure of the constitutional claim‘s source, they have created its elements with little regard for the constitutional text. In seemingly common-law fashion, we have created a four-part test for plaintiffs to prove this claim. See Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. 2013). Other courts have adopted similar multi-part tests. See, e.g., Harer v. Casey, 962 F.3d 299, 308 (7th Cir. 2020); Waller v. Hanlon, 922 F.3d 590, 602 (5th Cir. 2019). As for our elements, we have said that: (1) a plaintiff must at one time have possessed a “non-frivolous underlying claim“; (2) the state-actor defendant must have engaged in “obstructive actions“; (3) these actions must have caused “‘substantial[ ] prejudice’ to the underlying claim” that cannot be remedied by the court that would have heard it; and (4) the plaintiff must request the relief that the plaintiff “would have sought on the underlying claim” but is “now otherwise unattainable.” Flagg, 715 F.3d at 174 (citation omitted).
Jackson‘s complaint does not plausibly plead these elements. To be sure, I agree that the complaint pleads our first element: that Jackson possessed a “non-frivolous” Brady claim. Flagg, 715 F.3d at 174. He has pursued this claim in two venues seeking two forms of relief. In his state criminal case, he filed a post-conviction motion asking the state court to overturn his conviction because of the Brady violation. Compl., R.1, PageID 13. Once the prosecutor conceded the “materiality” of the exculpatory information, Jackson won his release. Id. In this federal civil case, he filed a § 1983 suit seeking damages against the Cleveland police officers who committed the Brady violation. Id., PageID 45–47. This claim remains pending in the district court.
I also agree that we cannot resolve Jackson‘s access-to-courts claim on our
Jackson, though, does not allege that Marburger participated in the Brady violation in 1991. Compl., R.1, PageID 6–10. She entered the scene 25 years later when responding to the Ohio Innocence Project‘s public-records request. Id., PageID 11–12. Jackson also does not challenge Marburger‘s contention that her public-records redactions adhered to the Ohio Supreme Court‘s then-existing reading of Ohio law. See State ex rel. Steckman v. Jackson, 639 N.E.2d 83, 92–94 (Ohio 1994). (The court changed its reading months later, which led to the release of Jackson‘s full file. See State ex rel. Caster v. City of Columbus, 89 N.E.3d 598, 608–09 (Ohio 2016).) As far as I can tell, then, Jackson seeks to hold Marburger liable under the Constitution for her state-law-authorized refusal to disclose information to a third party. If we imposed this constitutional duty on Marburger, how would it fit with the Supreme Court‘s precedent that the Constitution does not require state actors to disclose information in their possession? And wouldn‘t such a duty create the very post-trial Brady right that the Court has said does not exist? I am not sure of the answer to these questions. But we can save them for another day given the parties’ briefing choices.
Jackson‘s access-to-courts claim nevertheless founders on our third element: that he show “substantial prejudice” to his Brady claim that the court considering the claim cannot remedy. Flagg, 715 F.3d at 174 (citation omitted). This element requires Jackson to prove that Marburger‘s conduct “foreclosed” the relief that he seeks on his Brady claim. Swekel, 119 F.3d at 1264.
But Marburger‘s initial redactions of Jackson‘s case file have not prohibited him from seeking either type of Brady relief that he has requested (his release and damages). As for the injunctive-type relief that he once sought in state court, Jackson cannot show prejudice for an obvious reason: he won. Despite Marburger‘s conduct, Jackson obtained his release from prison by pursuing this Brady claim in his post-conviction motion. Without a “lost remedy,” Jackson cannot establish that Marburger prejudiced his victorious Brady claim. Harbury, 536 U.S. at 416.
As for the monetary relief that he now seeks in this federal suit, Jackson makes no claim that Marburger‘s redactions of his case file harmed his ability to prove his Brady claim against the Cleveland officers in any way. See Swekel, 119 F.3d at 1263–64. He, for example, does not allege that Marburger‘s conduct prevented him from filing a timely § 1983 claim. See Harbury, 536 U.S. at 422 n.22. Nor does he allege that her conduct triggered a claim-preclusion defense because he litigated and lost an earlier suit at a time when he lacked the later-obtained case file. See id.
While only an unpublished decision, Winburn has plenty of company. The other circuit courts to consider this question all agree that litigation delay does not suffice. As the Seventh Circuit explained, police misconduct that “delays redress” but “still allow[s] sufficient time for the plaintiff” to pursue the claim does not prove prejudice. Harer, 962 F.3d at 307 (citation omitted). Or as the Fifth Circuit put it, “showing delay alone is not enough; the plaintiffs must likewise show the delay caused some further harm to their cause of action.” Waller, 922 F.3d at 603.
My colleagues respond that the delay caused a tangible non-litigation harm (Jackson‘s incarceration for several more months) and that this harm allows Jackson to pursue an access-to-courts claim. Under the existing caselaw, however, a plaintiff must identify “litigation-related” harm—not outside-the-courtroom harm. Winburn, 43 F. App‘x at 734 (emphasis added). That is, the prejudice must affect the “cause of action” itself. Waller, 922 F.3d at 603. This limit flows out of the nature of the claim: it is not a substantive-due-process claim alleging the denial of the right to liberty; it is an access-to-courts claim alleging the denial of the right to litigate. My colleagues’ reasoning thus rejects our logic in Winburn and creates a circuit split.
My colleagues’ analysis of prejudice also conflicts with Harbury—the case in which the Supreme Court assumed the existence of this access-to-courts claim. The plaintiff in Harbury alleged that the delay in disclosing information had led to the most serious of non-litigation harms: her husband‘s death. 536 U.S. at 405. She suggested that certain CIA defendants had collaborated with the Guatemalan army to detain, torture, and kill her husband. Id. at 406. She next suggested that other State Department defendants “intentionally misled” her when she expressed concerns about her husband‘s safety. Id. at 406–07. These latter defendants had allegedly deprived her of her right to ask the courts for an injunction that could have saved his life. Id. at 409–10.
The Court held that this access-to-courts claim against the State Department defendants failed for two reasons. It noted that her complaint did not identify any underlying claim that the failure to disclose truthful information had prevented. Id. at 418. She later identified this underlying claim in oral argument as one for the intentional infliction of emotional distress against the CIA defendants. Id. at 419 & n.17, 421. Even assuming that she could amend her pleadings in this fashion, the Court next held that she could still seek damages on this intentional-infliction claim in her pending suit against the CIA defendants. Id. at 420–21. Money, of course, could not turn back the clock. So the State Department defendants’ conduct had permanently
Identical logic applies here. Apart from Jackson‘s access-to-courts claim against Marburger, he continues to pursue his Brady claim against the Cleveland officers. Neither through his pending Brady claim nor through his pending access-to-courts claim can Jackson get back the extra months in prison that he allegedly served due to the delayed disclosure of his case file. But he can seek damages for this extra time under his Brady claim. So he is “not entitled to maintain the access claim as a substitute” for that Brady claim. Id.
This reasoning brings me to our fourth and final element. I agree with my colleagues that, notwithstanding stray language in Flagg, this element requires Jackson to prove that he may not now seek the relief through his Brady claim that he pursues through his access-to-courts claim. See Harbury, 536 U.S. at 416; cf. Flagg, 715 F.3d at 174Brady claim to seek payment for the extra months that he spent in prison allegedly due to Marburger‘s delayed disclosure. Cf. County of Los Angeles v. Mendez, 581 U.S. 420, 430–31 (2017). To the contrary, he pursues both claims at the same time in the same suit—something that other courts would categorically prohibit him from doing. See, e.g., Harer, 962 F.3d at 309; Waller, 922 F.3d at 603.
My colleagues assert that Jackson seeks relief on his access-to-courts claim that he cannot pursue on his Brady claim because he pursues the two claims against different defendants: he sued Marburger for the alleged access-to-courts violation in 2016 and the Cleveland officers for the alleged Brady violation in 1991. This logic would allow a plaintiff to pursue an access-to-courts claim whenever the defendant who allegedly violated the access-to-courts right is different from the defendant who committed the underlying violation. I do not read this fourth element to permit that result. Rather, it asks whether the plaintiff seeks to use both claims to redress the same injury. Harbury again proves my point. The plaintiff there sought a single payment for the harm caused by her husband‘s death. So, even though the tort claim ran against the CIA defendants and the access-to-courts claim ran against the State Department defendants, the Court did not let the latter claim proceed. Harbury, 536 U.S. at 421. Likewise, Jackson seeks to use both claims to pursue a payment for the extra time that he spent in prison. I thus would follow Harbury here.
Because Jackson‘s complaint fails to state an access-to-courts claim, I respectfully concur in the majority opinion in part and concur in the judgment.