*1 and Fred Josiah HAYNESWORTH
Hancock, Appellants, MILLER, Chief,
Frank P. Law Enforce- Section, Corporation
ment Office (Two Cases) Counsel, al., Appellees. et
Nos. Appeals,
United States Court of
District of Columbia Circuit.
Argued March May
Decided *3 Genn, J. Stuart L. with whom
Edward brief, D.C., Lemle, Washington, was on the appellants. for Counsel, Sutton, Corp. Asst. P. David Rogers, Corp. Coun W. whom Judith Reischel, Deputy Corp. sel, L. Charles Grossman, Counsel, Asst. and Martin L. D.C., Counsel, Washington, were Corp. brief, appellees, District Colum Gorman, Corp. Asst. bia, N. et al. Leo D.C., Counsel, Washington, also entered an District of Colum appellees appearance for bia, et al. Winston, L. Stuart with whom
L. Mark D.C., Bindeman, Washington, was on the brief, appellee Gildon. ROBINSON, Judge, rests, Before solely they Circuit because refuse to waive WRIGHT, Judge, Circuit Senior arresting civil suits officers.3 PELT,* Judge. VAN Senior District appeal, Haynesworth disputes On propriety the District Court’s dismissal Opinion Court filed 12(b)(6)4 under Federal Rule Civil of his Judge Circuit ROBINSON. claims the District and three indi- Opinion filed Concurring by Senior defendants, vidual judg- the court’s District Judge VAN PELT. pleadings5 ment on in favor of another. ROBINSON, W., Ill, Spottswood Circuit Hancock challenges the District Court’s Judge: dismissal of his action in toto on the ground improper joinder plaintiffs.6 Josiah and Fred Han We find that order contested Han- this Bivens action1 for al brought cock court, properly cock is not now before this First, leged violations of their Fourth accordingly appeal.7 dismiss rights by Fifth Amendment the District of do, however, We perceive in Haynes- *4 merit its Ap Columbia and several of officials.2 challenge. worth’s We therefore reverse pellants they aver that were by victimized and proceed- remand his for policy retaliatory prosecution prac of case further —a ings pursuing charges against against tice of criminal all defendants named in his wrongful individuals have endured complaint8 except who ar- only one who took office * general appellate Of United States District Court for the Dis- incorpo- trend in the courts to Nebraska, by sitting designation pursu- trict of suits”). rate law opti- § 1983 into Bivens Since 294(d) (1982). to 28 § ant U.S.C. mally congruent the remedies should be in both specifics operation of their and the relief Agents 1. See Bivens v. Six Unknown Named of afford, they opinion frequently this relies on Narcotics, the Federal Bureau 403 U.S. of developed caselaw in the § 1983 context. (1971). S.Ct. At the com- Appellants also invoke the District Court’s November, 1978, litigation mencement this pendent jurisdiction to allow consideration statutory by cause of action conferred arrest, battery, their claims of false assault and (1982) deprivations § U.S.C. for civil prosecution. Complaint and malicious rights provide did not redress for acts commit- Miller, Haynesworth (D.D.C.) Civ. No. 78-2223 ted under color District Columbia law. (filed 27, 1978), Appendix Appellants Nov. Carter, 418, 432, District Columbia v. 409 U.S. (A.App.) 602, 610, We do not address (1973). these nonfederal S.Ct. 34 L.Ed.2d Congress stage, primarily subsequently counts at because their § amended 1983 to en- compass wrongs by entirely dependent upon committed District status is actors. survival of the 96-170, (1979). Gibbs, No. §§ Pub.L. 93 Stat. 1284 constitutional claims. UMWv. recognized applies We have that the amendment however, only prospectively, and it therefore is (1966) ("[c]ertainly, if the federal claims are predicate Tarpley not a for relief in this case. trial, though dismissed before even not insub Greene, 231 n. jurisdictional sense, stantial in a the state claims appellants 5 n. 11 Since cannot well"). should be dismissed as statutory remedy, avail themselves of the have no occasion to consider whether victims of 4-8, Complaint, supra A.App. ¶¶ 10-11. constitutional violations the District or its employees after effective date of the amend- 12-17, 25-33, A.App. 3. Id. ment could invoke in lieu Bivens of or in addi- proceeding to a § tion under 12(b)(6). Fed.R.Civ.P. Haynesworth While and Hancock assert a directly based cause tion, action on the Constitu 12(c). 5. See Fed.R.Civ.P. they their claims are of such nature that typically pursued more would be § under appealed separate- and Hancock circumstances, implied these In we think the ly rulings. from District We Court’s ordered right constitutional to sue should mirror appeals consolidated consideration. express statutory cause of action to the fullest possible. States, See extent Brown v. United 7. See Part II infra. 347 n. (en 1984), 2n. banc ruling regarding (case no (1985) We make the claims L.Ed.2d 509 Sonya Police Officer Proctor and Prose- § assimilation of especially 1983 and Bivens caselaw "is Horowitz, strong” cutor Howard B. both named as constitutional actions de- tort Columbia); only complaint. District of see also Ellis v. fendants note, however, Hancock’s We Blunt, (2d Cir.1981) (noting alleged "the that Horowitz’s miscon- through Hancock drawing handing the citation to issue here were the events as street, dropped she it in the conduct the car window close,9 another whose ab- demanded, loud, voice,”14 angry in “a suit.10 then immune from solutely appellant retrieve it. The ticket had away, then blown and Hancock refused Background I. order, repeated Proctor her to chase it.15 Background A. Factual stepping from the car and unbutton- back gun;16 summarized, ing holster of her when Hancock allegations of Briefly him again declined she ordered out of the complaint are as follows.11 car, down, placed him him under patted police Hancock was taken to a arrest.17 Hancock charged leaving with a motor- station November, 1977, Han- morning in One unattended, depositing running vehicle street in front parked his car on the cock street, citation —in the and dis- trash —the proceeded to check the anti- home and orderly conduct.18 He forfeited collateral briefly car to fetch He left the freeze.12 charge on the first stated that he appellee Sonya tool, to find then returned wished to stand trial on the latter two.19 Metropolitan Po- Proctor, officer of the incident, him, days Three after Hancock re- approached Department, lice who Metropolitan reg- his wife filed with the and vehicle his driver’s license quested Department Police a citizens’ istration, that he would be and announced later, against Proctor. A Hancock week leaving the vehicle unattended cited for charged depositing formally was running.13 As Proctor was motor with the *5 Pro, would, judgment Wager reasoning as a of law. 188 by process set matter duct the 3, 882, 1, (1976); 111(B)(3)(c) clearly U.S.App.D.C. infra, with- F.2d 884 fall 575 forth in Part Inc., immunity. Greenberg Group, v. General Mills Fun 478 the ambit of absolute 254, (5th Cir.1973); F.2d Southern O. 256 Bank defendant, that, 9. the as to this We conclude Pierce, Inc., Lynch, v. Merrill Fenner & Smith relief complaint state a claim for which fails to 478, (6th Cir.1973). The court 479 F.2d 480 III(B)(2) granted. See Part can be infra. 12(c) accept evaluating the motion will as true allegations opponent’s pleadings, and the See Part III(B)(3)(c) infra. mov all controverted assertions of the as false ant, 11. Supervisor appellees, Only Police Londin, one of the Carro, Spanbock, Rodman Bloor Gildon, complaint; to the filed an answer Dixie 57, Cir.1985); Foss, (2d 61 Gumer v. & Shearson, 754 F.2d prevailed to dismiss for on a motion the others 283, Co., (2d & 516 F.2d 286 Hammill See Fed.R.Civ.P. state a claim. failure to Commissioner, 152, Cir.1974); F.2d Cash v. 580 12(b)(6). evaluat established that in It is well (5th Cir.1978), benefit and will accord the 154 dismissal, ing propriety we must of such the non-moving inferences to the of all reasonable allegations complaint, accept see, of the true the as Pro, Wager supra, party, 3, 188 Niagara e.g., Square D Co. v. Frontier Co., Tariff 884; NLRB v. Weirton Steel — 1922, 1924, U.S. -, -, Bureau, 106 S.Ct. 144, (3d Cir.1944); Quality Mercu 145 Rowe, (1986); Hughes v. L.Ed.2d 418 90 Co., (8th 468 ry, Cir.1976), v. Ford Motor Inc. 66 L.Ed.2d U.S. 433 Beto, (1980); U.S. Cruz (1977). 1079, 1081, L.Ed.2d S.Ct. curiam), (1972) together (per with all reason 1, 9, A.App. Complaint, supra ¶ 12. therefrom in that be drawn able inferences Rhodes, favor, see, e.g., plaintiff’s Scheuer v. the 13. Id., A.App. 11-12. S.Ct. U.S. Carlson, Carter v. Id., A.App. 11-12. 14. (1971), grounds District Co sub nom. rev'd on other 10, A.App. 12. Id. Carter, lumbia v. L.Ed.2d 613 Id., A.App. 12. join to Appellee in the motion Gildon did not dismiss, post- prevailed subsequently on her but ¶ 11, A.App. 12. pleadings. judgment on the motion for answer 12(c) 12(c). requires that Rule See Fed.R.Civ.P. Id., A.App. 12. show, pleadings, at the close the movant remains to be issue of fact that no material Id., A.App. solved, clearly entitled to she is and that he or Haynesworth the pretrial trash.20 At a conference on charge, appellee B. Horo- trash Howard In Haynesworth, December an em- witz, Corporation Counsel as- an Assistant ployee of the District Superior of Columbia signed to the Law Enforcement Section Court, was accosted in a corri- courthouse Corporation the District of Columbia Coun- men, dor three who not known were Office, attorney told Hancock and his him, sel’s One, dressed in street attire. without pending explanation, citizens’ any Haynesworth the seized and presented “problem.”21 Horowitz slammed him wall.30 When stated Haynesworth protect endeavored to him- speak to Proctor that he needed to before assailant, identify self and his the latter prosecute he decide could whether punched jaw.31 him in the While the other later, charge.22 days trash A few Horowitz pinned men Haynesworth against two attorney informed Hancock’s that Proctor wall, aggressor frisked him re- and angry complaint, the citizens’ was about badge pocket moved his identification and charge not dis- would calculator.32 then missed.23 Hancock learned that episode interrupted This was Department investigating Police was a court- guard, approached house group, who complaint,24 shortly thereafter Haynesworth identified employ- as a court conduct, charge disorderly which had ee, and demanded to know what the other arrest, pressed not been after was add- doing.33 assailants, were Joseph three charge.25 ed to the trash Schwartz, Lyddane, Donald and Patrick alleges charge Hancock the trash Mooney, for the first time them- identified dropped, would have been disorder- police selves as One officers.34 instructed ly charge conduct would never have been guard Haynesworth, to arrest reinstated, were lodging for the demurred, guard saying complaint.26 his citizens’ He asserts that nothing justify had done an arrest.35 pressed retaliatory prosecu- Horowitz Haynesworth, seeing that a crowd had “pursuant policies tion and/or directives gathered, suggested that the three officers [appellee Miller who was then Frank] accompany adjacent him room.36 is Chief the Law Enforcement Sec- Schwartz, There the aggressor in *6 corri- Corporation tion of the Counsel.”27 Han- dor, grabbed Haynesworth while either supervisory cock’s “further demands to of- Mooney Lyddane or administered a choke- ficials and threats of suit for declaratory hold, restricting Haynesworth’s breath- injunctive relief”28 eventually resulted in ing.37 Haynesworth was struck a with charges against blackjack dismissal of all handcuffed,38 him.29 and then taken to 12-13, ¶ 35, Id. A.App. 20. Id. A.App. 13. 28. 9. ¶¶ Id. ¶ Id., A.App. A.App. 21. 13. 29. 19. Id., ¶ 20, A.App. A.App. Id.
22. 13. 14. 30. Id., Id., A.App. A.App.
23. 13. 31. 14. 20-21, A.App. A.App. Id. Id. 24. ¶¶ 13. 32. 14-15. ¶ ¶ 22, A.App. A.App. 15. Id. Id. 25. 13. 33. ¶ Id., A.App. A.App. Id. additionally 26. 15. 13-14. Hancock 34. ¶ illegal contends that the arrest itself was Id., A.App. cause. See id. probable A.App. lack 15. 35. 20. ¶ allegation This forms the basis for his constitu 23, A.App. Id. sounding tional and law 15-16. ¶ common claims arrest, battery, false and and assault malicious Id., Id., prosecution. A.App. A.App. 15-16. Id., Id. A.App. A.App. 15-16. ¶ headquarters, charged where he was
police previously he had broached the subject of a disorderly conduct.39 with release of civil day claims.45 On the set for trial, Haynesworth and his new counsel Processing charge against Schwartz, Lyddane, met Mooney assigned was Haynesworth appellee Mil- way their to Miller’s office for another ler, Chief of the Law Enforcement Section case, conference on the and Schwartz stat- Corporation Counsel’s office. After potential litigation ed that civil was an ob- talking privately Schwartz, Lyd- first dane, stacle to dismissal of appellee Gildon, charge.46 Dixie their At the su- conference, Miller, pervisor, Miller held a any conference with the without reference officers, Haynesworth waiver, attorney.40 and his reiterated his press intention to might stated that he Miller dismiss the disorderly charge.47 conduct charge conditions, under certain and asked charge against Haynesworth, like Haynesworth whether he intended to file Hancock, those was ultimately dis- Haynesworth’s civil suit. objected, counsel missed, only “but after further demands to stating question that should be ad- supervisory officials and the threat of a only dressed to him.41 Miller then asked Haynesworth suit.”48 alleges that everyone attorney but the leave charge would dropped have been at the out, way room. On her Officer Gildon re- outset but for the tacit policy of retaliation Haynesworth’s marked that initiation of prevailed that Corporation Counsel’s proceedings change civil would their deci- Metropolitan office and the Depart- Police drop charge; sion to interjected Miller ment.49 he, police, not the would make that departed, decision.42 the others When had B. Proceedings in the District Court Haynesworth’s attorney Miller told Corporation pur- Counsel’s office would Appellants filed suit in the District Court disorderly charge only sue the conduct if November, 1978, seeking compensatory Haynesworth threatened civil action punitive damages, declaratory relief, attorney the officers.43 The re- expungement of all relating records sponded authority that he had no to waive prosecutions.50 the arrests and Shortly Haynesworth’s right to sue. Miller sum- thereafter, Court, the District sponte, sua moned the others into back the room and dismissed Hancock from the suit without announced Haynesworth would be prejudice,51 ground “sepa- that his prosecuted disorderly conduct.44 rate cause of action is improperly joined in Subsequent attempts this lawsuit.”52 attorney retained another and, during subsequent this order discussion of the have set aside were unsuccess- case, Miller attorney admitted to the ful.53 24, A.App. probable cuted without cause. See id 1717 A.App. 21. *7 ¶ 26, A.App.
40. Id. 16. Complaint, supra (prayer 50. at 16-17 for Id., A.App. 41. 16. relief), A.App. 23-24. Id., A.App. 42. 16. Miller, Haynesworth 51. Civ. No. 78-2223 (D.D.C. 1978) (order), A.App. Dec. 25. A.App. 43. Id. 17. ¶ Id., A.App. 44. 17. Id., A.App. 52. 25. ¶ 29, A.App. 45. Id. 17. presented Hancock 53. a "Motion to Set Aside Dismissal,” 26-31, A.App. Order of which was 30-31, A.App. 46. Id. ¶¶ 17. denied, Miller, Haynesworth v. Civ. No. 78-2223 (D.D.C. 26, 1978) (order), A.App. Dec. 32, A.App. 47. Id. 18. ¶ Undaunted, he then submitted a "Motion to Set Aside,” Denying Aside Order Motion to Set 35, A.App.
48. Id. 19. ¶ 35-38, A.App. apparently which was also during hearing, A.App. Haynesworth 49. avers the course a status see Joint ¶¶ additionally prose Appellants he Brief that was arrested and for at 5. course, Officer answered in due for Gildon the employ- constitutional torts of its Schwartz, denying Lyddane, that Officers ees.58 Appellees Jefferson and Cullinane Mooney54 Haynesworth, and had accosted similarly disclaimed vicarious for denying and she and officers subordinates, that these had the torts of pointed their and engaged retaliatory prosecution, in but ad- out that the did not aver that mitting that had she remarked they participated directly in the activities drop disorderly decision to conduct complained grant- of.59 District Court charge by Haynes- would affected Miller, ed the motion and dismissed Jeffer- worth’s to file decision suit.55 Gildon son, Cullinane, and the District of Columbia judgment plead- partial moved for essentially reasons tendered.60 ings Court, discerning and the District no Reviewability “participated II. indication that Gildon had complained prosecution,” arrest or 54(b)61 imposes Federal Civil Rule dismissed her from the action.56 appeals restraint on partially from orders Miller, Columbia, disposing the District of and for- involving multiple of suits claims parties. furnishes, mer Police Burtell or Chiefs Jefferson The rule also how Cullinane, ever, responsive Maurice lieu of allowing appeals mechanism such pleadings, jointly go filed a motion dismiss. provides forward. The rule that a dis ruling Miller asserted that he and the District of disposing trict-court of some but not Columbia, employer, all absolutely as his were or claims liabilities in an action is liability by appealable only shielded from the doctrine of after expressly the court prosecutorial immunity.57 The District con- appeal determines should not be additionally delayed tended expressly that was account- entry directs the theory respondeat superior judgment.62 54(b) able on the Rule thus embodies a Schwartz, Lyddane Miller, Mooney Haynesworth Officers also See Civ. No. 78-2223 (D.D.C. 22, 1979) (order filed did answers but not seek dismissal. The June and memorandum opinion), claims these three A.App. defendants are all 47-55 cited [hereinafter as Opinion remain before the District Court. Further Memorandum ]. proceedings against stayed were officers pending disposition appeal. of this See Rule 54(b) 61. Fed.R.Civ.P. states: 54(b) Order, Haynesworth Certificate and v. Mil- When more than one claim for relief is ler, (D.D.C.) (filed Civ. No. 78-2223 Mar. presented multiple action when ... or 1980), A.App. 59-60. involved, parties are the court direct the entry judgment of a final as to one or more See Haynes Answer Dixie ¶ Gildon parties but fewer than all of the claims Miller, (D.D.C.) (filed worth v. Civ. No. 78-2223 express only upon an determination that there 7, 1979), Appendix Appellee Feb. Brief just delay upon is no reason for an ex- (Gildon App.) Gildon 2. While Gildon admitted press judgment. entry direction In remark, that she made the she averred also of such absence determination and di- Haynesworth prosecuted she wanted on the dis rection, decision, any order or other form of orderly charge regardless conduct of whether he designated, adjudicates however which fewer planned App. to file civil suit. Id. Gildon rights than claims all of the or the and liabili- parties ties of fewer than all the shall not any action terminate the as to of the claims or Miller, Haynesworth No. Civ. 78-2223 parties, and the order or other form of deci- (D.D.C. 31, 1979) (order), A.App. Oct. any subject to sion is revision at time before judgment entry adjudicating all the Miller, 57. Motion of Defendants Frank P. Dis rights claims and the and liabilities of all Columbia, trict of Burtell M. Jefferson and Mau parties. ¶ 2, Complaint rice Cullinane Dismiss the Kane, Wright, generally C. See A. Miller & Miller, M. (D.D.C.) Civ. No. *8 (1983 Supp. §§ Federal Practice (filed 15, 2653-2661 & 1979), A.App. Feb. 41. of Because Moore, 1986); Wicker, Taggart 6 J. W. & J. claims, severance and dismissal of Hancock’s (1985 Supp. Moore’s Federal Practice 54.04 & Corporation neither Assistant Counsel Horowitz 1985-1986). Proctor, nor only Officer named as defendants Hancock, by complaint. answers filed to the Curtiss-Wright Co., Corp. 62. See v. General Elec. 1460, 1464-1465, 100 446 U.S. S.Ct. 64 ¶ 3, A.App. 41. (1980); Wright, 11 10 C. A. Miller & Kane, ¶ 4, A.App. 59. Id. note § M.
1253 54(b) a policy disfavoring in Rule is more than mere technical- of reconciliation interlocutory or- compliance, from appeals ity; without federal court of piecemeal avoiding delay needless of jurisdiction ders with appeals lacks entertain chal- truly taken in a has been final action when thus lenges to the order.68 We have no a multiclaim or multi- portion of severable appeal. to dismiss Hancock’s choice but Rule satisfaction of Mere party case.63 course, ruling, preclude This of does not impart appeal- 54(b)’s will not requirements pressing his Hancock from case. The Dis- is not order that otherwise ability to an interlocutory trict Court’s order remains final,64 steps called but without really subject until the and is to revision balance order remains interlocu- by the rule an adjudicated.69 If of the claims have been fully disposes of a discrete tory even if it sua does not its the District Court vacate litigation.65 portion of the sponte dismissal of Hancock’s action when fully adhered The District Court resume, proceedings the order will be- 54(b) of after issuance the dictates of Rule appealable upon completion come final and dismissing all claims the orders Moreover, litigation in that court. Cullinane, Miller, Jefferson, and the Dis Hancock, course, always liberty Columbia, granting after Gil- trict of 54(b) compliance Rule with a seek with pleadi judgment motion for don’s resurrecting appeal. But view toward are Consequently, these orders ngs.66 economy judicial well be that would appeal. But us on this properly before if served the District Court first be better any effort nothing in the record reveals light appellees’ order in reevaluated its to the sua respect the District Court with proper remedy concession that the for mis- sponte dismissing severing Han order claims, assuming joinder of Hancock’s Rule the demands of claims to meet cock’s deciding misjoinder such actu- steps specified 54(b).67 take the without Failure to Kane, 63. 10 C. the Chief Staff Counsel of this Wright, & M. were noted A. Miller attorney balancing in a letter to Hancock’s dated has been court 2654. Such § 14, 1979, promoting the the letter did not incite compelled by modern rules March parties. indication that joinder claims and As the Seventh curative action. There is some purposes explained, has believed it sufficient for Circuit counsel compliance 54(b) satisfy prereq- Rule its “hardship joinder and denial of can create brought by Haynesworth appeal for the uisites through delay justice if each issue must await with Hancock’s. See and then consolidate it parties issues as to all the determination of all Relief, Stay Proceedings or for Other Motion to judgment can be had.” ... a final before (D.C.Cir.) (filed Miller, 54(b) aggrieved party No. 79-1244 to obtain Hancock allows an Rule 26, 1979); Extending Apr. for Order Motion accelerate the resolution review that will Miller, Proceeding, Stay disrupting Hancock question the rest of the Time for one without (D.C.Cir.) (filed 1979). Aug. litigation____ No. 79-1244 Daniels, clearly misconception, Exchange F.2d because Bank v. That was Nat'l orders, (7th Cir.) (quoting appeals v. Petrole different which in- Dickinson two dividually involve 290-291 507, 511, requirements Rule Corp., meet the um Conversion 322, 324, must (1950)), reh'g granted 54(b). L.Ed. (7th grounds, F.2d 140 other in Cir.1985). Lines, Kappelmann Air See v. Delta 163, 166, (1976), cert. App.D.C. 539 F.2d 64. Gold Seal Co. v. Weeks, U.S.App.D.C. Preisser, (1954); Page v. 209 F.2d (1977); v. Institute Resource Turtle Cir.1978); (8th 10 C. 338-339 341, 342, Inc., Management, Kane, supra Wright, Miller & M. A. (1973); Wright, A. Miller C. 2655, at 41. § Kane, supra note § M.& Kane, supra 10 C. Wright, & M. A. Miller asserted remembered that claims It must be 38; at note 68 see text § infra. complaint against Haynesworth-Hancock unadjudicated in remain the defendants three of Order, 54(b) Haynes- 66. See Rule Certificate supra; Fed.R. Court. See note 54 the District (filed Miller, (D.D.C.) worth v. Civ. No. 61); 54(b) (quoted supra Reuber Civ.P. 21, 1980), A.App. 59. Mar. States, United Wright, A. Miller 10 C. See Nonobservance text at note 52. Kane, supra § 54(b) thereby M. problem & created Rule and the *9 1254 occurred, proved,
ally
provide
would be severance and not
for
would
a basis
recov-
complaint.70
Hancock’s
ery.72
dismissal of
plaintiff’s
A
bare conclusions of
law,
sweeping
and unwarranted aver-
Haynesworth’s
Complaint
III.
fact,
ments of
will not be deemed admitted
motion;73
case
Haynesworth’s
purposes
type
thus reaches us
either
of
of
for judgment
on the
to dismiss and
motions
plaintiff enjoys
the
the
of
benefit
all infer-
these,
pleadings.
on the
Motions such as
plausibly
ences that
can be drawn from
summarily extinguish litigation
that would
well-pleaded allegations
complaint.74
of the
opportu
at the
the
threshold
foreclose
Several issues are thus framed for our
nity
discovery
presentation,
factual
question
The
consideration.
threshold
we
greatest
should be treated with the
of care.
in assaying
propriety
must address
granted
A motion to
should
only
dismiss
be
rulings
District Court’s
is whether
that,
beyond
when
appears
under
doubt
alleged any conduct
any
reading
complaint,
reasonable
damages
which a
cause
action for
may
plaintiff
prove any
be unable to
will
set
implied
directly from the Constitution.
of facts
would justify
relief.71 The
so,
If
then
must
determine
extent to
awarding judgment
standard for
which each appellee may
impli-
been
have
pleadings
virtually
regardless
is
identical:
wrong
cated in
depicted,
the constitutional
answer,
in an
a
assertions
defendant
may
participation
whether his or her
may
not succeed on such a motion if there
which,
allegations
are
in the complaint
if
have been
liability.
sufficient
to warrant
Jefferson, Cullinane,
Appellees
70. Brief for
see
Dep’t,
Mil-
also
v. D.C.
Martin
Metro. Police
259
31, 39,
1425,
ler and the
at 7 n.
U.S.App.D.C.
(1987),
District Columbia
1. See
812 F.2d
1433
Appellees urge us to
(order) (D.C.Cir.
Fed.R.Civ.P. 21.
treat the
part,
vacated in
Of
have broad discre-
evidence that the
was entered into
drop charges.
tion
there
press
But
voluntarily,
prosecutor
acted
limits____
are
Government
reasonably
pursuit
legitimate
and in
law
*11
deterring
prosecute
purpose
for the
of
goals.88 Among
enforcement
circum-
the
people
exercising
right
pro-
their
from
to
impressing
majority
stances
the
were that
and petition
test official misconduct
for Rumery’s
attorney
own
the re-
drafted
grievances.84
redress of
agreement
lease-dismissal
counseled
and
joined
reject
Several other circuits have
in
at
length
client
on its
and
benefits
Dixon 85
ing
challenged in
practice
the
implications,
prosecutor’s
and that the
deci-
realize,
course,
every
of
that
seek
We
not
sion to
a civil release
motivated in
was
attempt
associate
to
dismissal of criminal
part
large
by
key
his desire to insulate the
charges with waiver of civil claims will
in a
felony prosecution
witness
related
prosecutorial
amount
misconduct
testify
the
Rumery’s
from
need to
at
crimi-
deprivation of
prerogative.
constitutional
nal
or in
trial
his civil suit.89
Town Newton v.
In
Rumery,86
the Su
may
The fact that circumstances
render
preme
found
Court
a release-dismissal
agreements
release-dismissal
valid
en-
agreement
binding
to be
against
valid and
any
forceable does
in
way
not
excuse the
putative
subsequent
the
defendant
in his
alleged
conduct
in this case. The circum-
Section 1983 action.87 While acknowl
attending
stances
the
press
decision to
edging
“in some
that
cases [release-dismis
against
charges
Haynesworth strengthen
agreements
infringe
in
may
important
sal]
prosecute
his assertion that the decision to
the
terests of
criminal defendant and of
solely by
pre-
was motivated
the desire to
whole,”
society
majority
as a
of the Court
seeking judicial
vent him from
redress for
the
possibility
held that
mere
of over
police misconduct;
Rumery
alleged
reaching
agree
should not
the
invalidate
overwhelming
ment at
in the
in
issue
face
Court
no wise intended
legalize
such
(separate opinion
(1985);
Id. at
We also concur in the District
that in some contexts failure of an
Court’s dismissal of the
safeguard against
claims
Jef
official to
constitutional
ferson. He took office as Chief of
transgressions by
Police
those under his control
1,
Complaint, supra
A.App.
note
acquiesced
practice
retaliatory
¶¶
either
in the
[of
or,
prosecution]
negligent
supervision,
due to
it,
prevent
failed to become aware of and
al
105. Joint Brief for
though
Complaint, supra
then able to do so.”
Appellants
at 45-48.
1, ¶ 45, A.App.
note
106. Memorandum
60,
7,
Opinion, supra
Porter,
368,
E.g.,
(4th
Slakan v.
737 F.2d
372
A.App. 54.
Cir.1984),
denied,
cert.
470 U.S.
(1985);
Adams,
116. See notes
119-122 infra
(D.R.I.1978).
text.
tions
the constitutional violation standard
appropriate, given
is
the wide
range
that did
fact occur.124 This standard of
of constitutional breaches arguably
culpability
supervisory
daily operations
officials
“foreseeable” in the
has
of a
by recognition
agency,
law enforcement
justified
imposi-
difficulty
been
and the
providing
of
meaningful guidance
duty
prevent
tion of a
of care to
all foresee-
ward
possible
off all
wrongs.128
duty
The
misconduct
able
subordinates would
supervise
triggered
that,
is
by proof
absent
supervisors
thrust an excessive burden on
supervision,
effective
harm
merely
was not
hamper performance
of official
foreseeable,
highly likely, given
but was
Despite
duties.125
differences in articula-
the circumstances of the case. When inac-
applicable
tions of
standard126 and the
tion in the face of a substantial threat of
rationale,127
underlying
overwhelming
shown,
harm is
it can be said that
majority of courts faced with claims of
supervisor acquiesced in the resulting con-
supervisory liability after
have deter-
Rizzo
violation, thereby
stitutional
“linking” the
that,
responsibility
predicat-
mined
where
non-feasance with
injury
in the manner
ed on inattentiveness rather than affirma-
required by Rizzo.
misconduct,
plaintiff
tive
must estab-
high degree
lish a
of fault
in order to
It remains to delineate those situations
implicate
supervisor
in the constitution-
trigger
duty
supervise
under
al infractions of his subordinates.
Bivens and Section 1983. Courts requiring
“gross negligence” or “deliberate indiffer-
agree
We
that Rizzo mandates a
ence” have held that standard satisfied
retreat
from the
proclaimed
standard
supervisor
where a
passive
remains
Carlson,
join majority
Carter v.
past
face of
constitutional violations about
calling
courts
for something more than which he knew or should have known.129
negligence
forge
mere
the “affirmative
Some of these courts have also concluded
link” between the
infringe
constitutional
duty
supervise
arise,
that a
even
supervisor’s
ment and the
conduct. Con
pattern
past
absent a
transgressions,
exigencies
sideration
of criminal law
training
where
clearly
has been so
deficient
suggests
higher
enforcement also
deprivation
that some
rights
will inevita-
See
Hays
County, supra
v.
Hays
note
County,
supra note
Jefferson
Jefferson
872-873;
Providence,
City
cases).
668 F.2d at
Leite v.
(collecting
bly result additional instruction.130 the prevent absent instruct to subordinate consti- duty general, In the of a to su- existence tutional harm arose the surrounding from pervise particular prevent to a harm is a circumstances; that, as a result of the law, question rather of fact than and de- instruct, plaintiff official’s failure to the pends dispute.131 of particulars the each was harmed manner threatened. We Haynesworth’s turn now to complaint today that the analo We hold close against Cullinane to ascertain whether it to Rizzo gy us requires to constrict states a colorable claim for relief under supervisory liability ambit of for constitu this standard. wrongs. tional Our decision does not shift required culpability the level of to establish violation; underlying turn on must (b) Sufficiency Allegations of provision the nature of the constitutional Against Appellee Cullinane allegedly infringed.132 Nor does it affect stated, As we have a motion to showing municipal liability essential to pursuant 12(b)(6) dismiss to Rule should be inadequate supervision, prob since the appears if it complaint denied from the determining lem governmen of whether a plaintiff might prove be to able some entity charged tal responsi be should provide set of facts which a would basis for
bility employees for the of its is con acts liability.134 according Evaluated to this lib ceptually question from the wheth distinct standard, eral we think the District Court’s wrongs er the one municipal of worker of dismissal Cullinane from the lawsuit was imputed should be to another.133 Our hold premature. Haynesworth’s al ing that, supervisory order find a leged charged that Cullinane was with the official personally damages liable for the responsibility of subordinate, supervising wrongdo unconstitutional acts officers;135 ing must responsible practice he was shown that retali supervising wrongdoer; duty atory prosecution that a had unfolded in the Dis- Moreover, E.g., Hays County, supra right. note Amendment ed, as we have stat- Jefferson 874; Facteau, 668 F.2d at supra, McClelland v. plaintiff plead 71 note must 697; supra Providence, City note 610 at Leite v. assertion of motive unconstitutional with some supra F.Supp. note 590- particularity. But once such violation is es- 591; Haas, (2d cf. Owens v. tablished, charged we think an official with su- cert, Cir.), denied, 100 S.Ct. pervising wrongdoer may be held liable for (1979) (municipality may L.Ed.2d 407 be held duty regardless dereliction of of whether he resulting single liable for harm from act improper harbored motive of his own. See employee, supervisor subordinate where was Gildon, generally (distinguishing ”deliberate[ly] gross inadequacies indifferent” to culpability necessary the level of to establish the existing training program). deprivation required constitutional from that 1983). state claim under or § Bivens See Mailet, (2d Turpin Cir.), 101 S.Ct. parameters municipal L.Ed.2d We that the personnel supervisory for the acts of Gamble, 105-106, E.g., Estelle v. are unclear. See note 232 While some infra. (in (1976) L.Ed.2d equated municipal supervisory have courts Eighth order to violation establish Amendment Providence, liability, City see Leite v. treatment, stemming improper from medical F.Supp. believe that the prisoner state must show action under color of question supervise whether a failure consti- pris- state law with "deliberate indifference" municipal policy implicates tutes a or custom needs); Williams, oner’s medical Daniels v. beyond scope of our concerns discussion 327, -, U.S. 662, Columbia, supra here. See Carter v. District (1986) (infringement of Due Process Clause of Fourteenth satisfied Amendment not (discussing municipal scope of lia- by proof negligently that state actor caused bility inadequate supervision by city offi- deprivation liberty property). unintended cials). observed, already We have text, accompanying a First establishment of *17 134. See note 71 supra. retaliatory prosecution of Amendment claim re- quires governmental proof acted that a official 135. Complaint, deprive plaintiff supra A.App. with intent to First ¶ of his 10. Columbia;136 failed motion 12(b)(6) of that Cullinane withstand a under trict Rule proceed to him to discovery.142 enable with supervise instruct his in order officers to against further of re- guard to outbreaks Corporation 3. Counsel Miller taliation; Haynesworth’s inju- and that Haynesworth’s that Addition- resulted from failure.138 complaint ries as liability against may partici- Corpora serted ally, police infer139that the Assistant tion Miller on ground Counsel direct of prior retaliatory prose- in the acts of pated complicity prosecution in the alleged, and cution, police and that the chief was or ground on supervision the further of have been in should aware thereof. Cast promotion of the retaliatory policy.143The light Haynesworth, most favorable to against District Court dismissed the claims facts, proven, if these could sustain a find- in Miller the belief that he com enjoyed ing liability part of of Cullinane. plete prosecutorial immunity from suit.144 Haynesworth will to It be substanti- in determination, We this concur are but practice claim past ate his that there was a upon to principles constrained elaborate .the retaliatory prosecutions, of underlying application prosecutorial of participated police therein with knowl- immunity in this case. Accordingly, we edge at least the indifference —of Culli- —or legal theory discuss policymaking Haynesworth be nane. should afforded against Miller, asserted the suffi opportunity verify some to these claims ciency complaint charging of the liabili through discovery operative since the infor- ty, that, and the bases for our conclusion largely in the of adverse mation hands notwithstanding Haynesworth’s allega parties.140 Correspondingly, Cullinane tions, is absolutely Miller immune from lia given be a chance to counter should bility therefor. allegations factual in- Haynesworth’s with (a) Policymaking Liability
formation, develop and to the affirmative good immunity.141 We defense faith do Governmental officials also be course, not, Haynesworth’s assess personally damages held liable in con trial, prevailing chance at but believe infringements resulting stitutional from complaint enough his sets poli- forth their establishment of unconstitutional 136. ¶34, A.App. Haynesworth including Id. 18. While the motive element —has been set pattern developed under particularity, states the aus sufficient forth with we are Counsel, Corporation pices liberty of the would seem to draw reasonable re- inferences with likely police gard implication more than not that officers—the to Cullinane’s therein. practice prior of the beneficiaries —abetted just retaliatory prosecution, they as incidents Haas, Owens 601 F.2d at allegedly did in the case before us. (where plaintiffs complaint alleges an enough to raise incident severe an inference of 44, A.App. 22-23. While "deliberate indifference” on the su- alleges "negligent” that Cullinane was in his pervisor, discovery court allows limited deter- supervise, will failure this averment not de shown). mine such indifference can whether complaint long the action so as the other feat attributing furnishes a wise basis for Culli See note infra. higher degree some nane fault. Second Circuit noted in As the Owens Id., A.App. 22-23. Haas, supra note this outcome accommo- curbing interest dates the vexatious and ability supra. See notes Our officials, litigation against city groundless Haynes- reasonable inferences from draw provides plaintiffs time at the same is not cir- worth’s Cullinane press adequate opportunity to their constitution- by this court’s cumscribed admonition Hob- court. 601 al claims in F.2d at 1246. Wilson, allegations son pleaded motive be with some unconstitutional 34-35, A.App. Complaint, ¶¶ specificity. 237 18-19. The claim Cullinane is not founded any upon upon part, malicious intent his Memorandum acquiescence wrongful Opinion, supra acts others. underlying A.App. Since constitutional violation— *18 supervisory prosecution alleged cíes.145 In contrast or train- policymak- and for his ing liability liability, policymaking ing regard latter, rests role. With to the upon complaint points misfeasance rather the official’s than to Miller’s responsibility For an establishing his nonfeasance.146 official to be and implementing policy basis, Counsel,149 Corporation held he must for the pro- accountable on and his actually prescribe policy formally pursuance agenda or de motion and of an of re- — encourages improper taliatory prosecution.150 facto147 —that means But while we find policymaking complaint’s allegations or ends. To succeed on a wrong- theory, plaintiff doing against a must demonstrate requirement Miller meet liability against particularity, the official whom is assert- we conclude that he is power formally absolutely either ed has the immune from this suit. —vested practical poli- or as a matter —to formulate Prosecutorial (c) Immunity151 cy, policymaking and has exercised that authority generate improper practices. Columbia, As an officer of the District of supervisory liability, As in the case of qualified immunity Miller has at least from plaintiff seeking poli- to recover suit for all activities undertaken within the cymaking official must demonstrate a caus- scope Corpora- of his duties as Assistant policy al connection between estab- Haynesworth tion initially Counsel.152 con- wrong lished and the committed that, regardless protection tends oth- him.148 applicable, erwise Miller’s conduct was so palpably beyond scope authority of his
(b) Sufficiency
Allegations
the cloak of
immunity
official
should
Against Appellee Miller
cast
aside.153
directs our
adequately
The
sets
attention to a decision
this court154 and
against Miller,
prior
forth a cause of action
both
Corporation
directive of the
Coun-
participation
Office,155
retaliatory
for direct
reflecting
sel’s
both
disapproval
contexts, promulgation
brought against
In
pursuant
some
of unconsti
state officers
1983;
fact,
policies by city
tutional
Supreme
officials
lead to
§
Court counsels
"
”
municipal
personal liability
as well as
for harm
that it would be ‘untenable’
to draw such a
III(B)(4)
thereby.
occasioned
See Part
Fitzgerald, supra
distinction. Harlow v.
note
infra.
457 U.S. at
n.
102 S.Ct. at
n.
146. See Duchesne v.
Sugarman, supra
note
(quoting
of the
Section 1983.158Nor are we constrained to
argues
that Miller’s actions taken in
immunity
cast
simply
aside
because Miller
derogation of these
do
authorities
not merit may have contravened
thirteen-year-old
immunity.
Haynesworth pre-
We believe
policy directive. Even assuming that the
sphere
protected activity
sumes a
far
policy
might
statement
otherwise have still
narrower than that countenanced
the
been in force during
period
the
relevant
caselaw.
here, it is entirely plausible
power
that the
to amend
reposed
outdated directives
with-
Supreme
Court has staked out ex-
in
parameters
the
pansive
general
of Miller’s
immunity,
poli-
boundaries for official
cymaking
governmental employee
authority.
so that a
Accordingly,
forfeits
we con-
protection only
he
“manifestly
when
acts
clude
the
challenged
conduct
was not
palpably beyond
authority.”156
Un-
so far afield of Miller’s official duties as to
standard,
der this
the conduct at issue did deprive him of
immunity
applicable.
destroy
immunity.
Miller’s
As Chief of
We must now ascertain the nature of the
Section,
pos-
the Law Enforcement
Miller
immunity that attaches to Miller’s activi-
authority
imple-
sessed
to establish and
ties,
great
and a
deal turns on this determi-
policies governing
prosecu-
ment
criminal
nation.
If
enjoys only
Miller
qualified im-
Haynesworth’s
tions.157 Since
claim for
munity
issue,
for the conduct at
then addi-
damages against Miller rests on the estab-
pleadings
tional
are necessary to evaluate
implementation
prosecution
lishment and
whether he is
protection
entitled to
in this
policy,
challenged
clearly
the activities
fall
case.159 Accordingly, qualified
if
immunity
immunity.
within the realm of official
And
day,
carries the
the District
disposi-
Court’s
Miller
protection
does not lose this
simply
complaint
tion of the
against Miller under
authority impinged
because his exercise of
Rule 12
If,
was erroneous.
on the other
upon Haynesworth’s
rights;
constitutional
hand, Miller is entitled to
allegation
if
absolute immuni-
of unconstitutional action
ty for the
shield,
sufficed to
establishment and
immunity
implementa-
remove the
immunity
prosecution
would never be
tion of
policies,
available Bi-
Haynes-
then
only
vens actions and
seldom in suits under
worth’s suit
him is
at
“defeat[ed]
against police
exchange
15;
[of claims
U.S.App.D.C.
officers]
Gregoire
at
at
v.
F.2d
dropping
charges,
Biddle,
(2d
for the
Cir.1949),
and not to allow
cert.
denied,
pro-
their discretion in the manner of a nolle
339 U.S.
70 S.Ct.
—Prosecutorial
explicitly held that initiation
aof
criminal
Advocacy
prosecution
absolutely protected
from a
apply
We now must
the somewhat nebu-
suit for
As to the formulation
*22
damages.192
prosecutorial immunity
lous doctrine of
general policies
however,
prosecution,
present
the facts of the
case.
provides
guidance
Our first we find Imbler
less clear
229 U.S. 185. Hamilton v.
Bell,
160,
E.g., Gray
supra
1207,
(7th
180.
v.
Daley,
note
777 F.2d
1213
186,
App.D.C.
("we
Cir.1985).
Gerstein,
safeguards
sufficient
prosecutorial
absolutely
that Miller is
immune
leave
in the formulation of
conduct
wronged
policies
frequently
“genuinely
re
defendant without
policies. Those
will
realize,
redress,”
civil
but we
as the
proceedings,200
in criminal
and therein
sult
“
Imbler,
in
‘the answer
be accorded the full Court did
the defendants will
appellate mechanisms
must be found
a balance between the
panoply of trial and
”205
in either alternative.’
suspect practices.201 Further
evils inevitable
to attack
more,
profes
only qualified immunity
extend
prosecutors
subject
are
to
Were we to
censure,
per
promulgation
prosecu-
of standards
discipline, public
sional
tion,
penalties
unsavory
we would deter
the formulation
haps even criminal
acts;
policy
policy,206 thereby
jeopardizing
deci
individual
and to the extent
justice system
and the criminal
impact
have wider
than conduct
defendants
sions
prosecutions,
they
currently
like
Given
means
are more
as
whole.
individual
area,
ly
produce a backlash.
“The rationale
available to deter misconduct
protection afforded
underlying
immunity
absolute
does not re we view the additional
dynamics
suggest
charges
of the situation
200. The
were dis-
199. The
trial,
only
episode
prosecutors
be
about formu-
missed
but one
should not
will not
timid
before
may forego
lating policy,
they
implicating
but also that
control a determination
an entire
Moreover,
altogether.
supervisory
species
prosecutorial
policymaking
If
offi-
conduct.
litigation
deny
immunity simply
they
understand that
could invite
absolute
because the of-
cials
by
attempts
prosecutorial
challenged
zeal
ficial conduct was never
in court
their
to cabin
statements, they
discourage prosecutors
dismissing
through
policy
would
from
the issuance of
trial,
by
only
pur-
might
opt
prosecutors
meritless actions before
since
leave individual
well
suing
charges
prosecutor
Discourag-
sham
would the
guidance
clear
or control.
without
fully
prosecutorial
immune.
ing the centralization of
decision-
making
plainly unwise.
It would seem be-
See,
Bell,
e.g., Gray
yond peradventure
arbitrary
or discrimina-
U.S.App.D.C.at 187 & n.
though Section
responsibility
of
seems
case,220
form
challenged,
properly
this
can
be said
have
constitutionally-im-
imposable in a
clearly
the alter ego
municipality.
acted as
of the
plied
as well.221
action
inquiry poses
question
This
of fact
a
rather
law,224
than
and in order to survive a mo-
municipal
liability of which we
The
dismiss,
tion to
the
must
set
direct,
is
vicarious.
It
is
speak
now
“plausible
the
forth a
nexus” between
ac-
the
the
fact
premised, not on
mere
authority
tion assailed
the
conferred
municipally
em
officer
wrongdoing
is
policy
municipality.225
by
existence of some
the
ployed,
municipal govern
to the
fairly attributable
question
The
policy-
whether
primary justification for
The
ment
itself.
making by a
should
municipal officer
be
liability
recognition
is
the
type
of
municipal
liability pur
for
deemed
act
only through those
municipality
can act
the
of
poses
scope
turns on
and nature
the
an offi
it to function.222 When
who enable
authority.226
pos
officer’s
If the official
delegated power
has
employee
cer or
been
authority
promulgate policy
final
sesses
municipality
act
responsiblity
for
sphere,
in the relevant
decisions
“con
as a unit
area,
may
acting
he
given
final
municipality’s
stitute
decisions”
municipal government,
thus render
provide
hence
for municipal
a basis
con
ing
municipal entity liable for his
accountability.227
case
wrongdoings.223
The
clearest
The critical
is
stitutional
sue, then,
municipal repre-
presented
say
is whether
when final
over
chal-
821,
387,
808,
Blackwell,
(5th
105
85
Brewer v.
401
692 F.2d
791,
(1985)
Cir.1982);
Inc.,
opinion);
Physicians,
Malak v.
(plurality
803
see
Associated
223,
Columbia, supra
District
policy retaliatory prosecution,237 as did attorneys acting under his other District ap- in Our conclusions this multifaceted allegations, proven, if direction.238 These peal following. reduce to the Dismissal of supply adequate could an foundation for properly Hancock’s is not before of Miller’s conduct to the Dis attribution us, encouraged and the is District Court trict. original reconsider its order when the liti- gation upon resumes issuance of the man- issue, anyAt trial of this the Dis appeal. date on this Gildon must be rein- may attempt trict to show that Miller’s stated as a defendant because the District routinely decisions were monitored his erroneously granted Court her motion superiors, showing and that could serve judgment pleadings. Haynesworth municipality liability. insulate the from is unable to maintain a cause of action charges against Haynes- Evidence that the against either of the former Chiefs of Po- dropped lodged worth were when he respondeat-superior theory, lice on a complaint would be relevant administrative responsibili- has not stated a claim of direct regard, allegation in this but the bare Jefferson, ty against pro- entitled to preclude municipal that fact does not liabili against alleged ceed Cullinane for his fail- prosecution. ty for the Nor does the mere adequately supervise ure to train and policy condemning existence of a directive enjoys subordinates. Miller absolute im- retaliatory prosecutions Haynes- defeat munity prosecutor for his actions as the against the If worth’s claim District. Haynesworth’s case and for his conduct as District can establish the directive was policymaker Corporation enforced, Counsel’s vigorously may be that Miller alleged wrongdoing office. Miller’s never- municipal authority. acted without Absent provides proceeding theless showing, Haynesworth if basis such a can estab Corporation lish that the District of Columbia since it Council’s office appears actually policy retaliatory may possessed adhered to a that he have suffi- prosecution, policymaking authority will be cient to act for directive rendered meaningless.239 prosecution District in the establishment of supra. supra. 235. See note 11 note 225 240. See Complaint, supra A.App. 236. 10. ¶ recovery puni- 241. also seeks damages against Complaint, ¶ 34, tive the District. A.App. 237. Id. relief), (prayer A.App. supra note at 16 17, A.App. punitive Supreme Court has ruled that dam- ages may against municipality assessed not be otherwise, were to conclude If we the Dis- Concerts, Newport pursuant v. Fact §to escape future trict could under Bivens Inc., enacting general simply by prohibi- §or We think that pro- tions viding unconstitutional acts without inappropriate is likewise Schnapper, supra such an award for their enforcement. at 231. Bivens suit.
policies. The District Court’s action is ac- present this defense in a motion for sum- cordingly affirmed in and reversed in mary judgment. Thus, I also would re- part, and the case is remanded to that verse the dismissal of Cullinane for these proceedings court for consistent with this purposes. The may trial court opinion. conclude that the qualified defense of im- *28 munity presented can be in a motion for
So ordered. summary judgment jury or that a issue PELT, VAN Judge, Senior District con- exists as to this officer. curring: As liability to the issue of of the District I desire to make a short statement as to Columbia, I recognize my tendency as a my concurrence. I Judge commend Robin- judge from outside the District to defer to opinion, son on his in Judge Wright which Judges Robinson and Wright gen- their concurred, attempt bring has and his knowledge eral of the intention and history plaintiff’s argument order to which is disor- of the District of governmental Columbia verbose, ganized, and difficult to follow. agree action. I cannot be based on theory respondeat superior. argued When this case was and sub- possibility As to the of direct liability based panel, mitted to the Hancock’s claim had upon proof of the existence of a municipal improperly joined. been dismissed as action, policy or course of I would hold that standing claims of were as Department Monell v. Schwartz, Services, Social against Lyddane Mooney, the officers who had L.Ed.2d 611 arrested him. As to (1978), is claim, applicable based on the disagree Hancock’s I status of Judge this case at the time of the opinion part ruling Robinson’s only; I conclude judge. Nevertheless, district that it was I reversible error to concur in dismiss his proposed, I action claim. think it should since this have been severed. case should Rule have immediate See: Federal attention. Rules of Civil Proce- Later review dure, panel a full page and Footnote always of Brief court is possi- Appellees. bility, protection He should have full with an issue applicabili- such as the against ty statutes of limitations. The dismis- Monell. Proctor, Sonya officer,
sal of police Hancock,
who arrested can be reconsidered
if Hancock’s claim is reinstated.
I concur in the affirmance of Miller’s
dismissal. While this comment not be stage
relevant at this proceedings, I
comment gratuitously that Howard B. Horowitz is immune to the same extent DOE, Appellant, John immune, that Miller is assuming his acts were taken scope within the of his advoca- cy duties. Caspar WEINBERGER, Secretary, I in rejecting concur respondeat supe- Defense, Department of et al. rior claims Cullinane and Jefferson No. 86-5395. the dismissal of Jefferson on the basis that there was personal insufficient Appeals, United States Court of involvement on to implicate him in District of Columbia Circuit. either the alleged formulation of the policy Argued Feb. agree or its execution. I that further dis- covery should be allowed on Haynes- Decided June worth’s claim Cullinane. Culli- nane, turn, given should be right
develop the affirmative qualified defense of
immunity. possible It that he could