Larry Junior WARD, Appellant, v. Gene M. JOHNSON, Warden, Sgt. Gardner, Chairman of Adjustment Committee, Appellees.
No. 79-6304
United States Court of Appeals, Fourth Circuit
Decided Oct. 7, 1982
Heard En Banc March 29, 1982.
In conclusion, I should say that the question of whether or not a jury is required is not before us, so footnote 8 to the majority opinion is bound to be dicta. So far as the opinion may intimate, however, that the breach of the settlement agreement is not triable to a jury, I do not agree. If the validity of the settlement agreement is a question properly to be tried to a jury in a trial of the underlying cause of action on its merits, then the fact that the same matter may also go to the jurisdiction of the court does not diminish the right of the parties to trial by jury as to that issue. Again, such a holding is contrary to the principles of Osborn, Bell, and Smith, and would enable parties to avoid trial by jury in many federal question claims by simply trying to the court as a preliminary matter the fact common to both the question of jurisdiction and the merits.
Carter Glass, IV, Richmond, Va. (Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellant.
Richard F. Gorman, III, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellees.
DONALD RUSSELL, Circuit Judge:
This is an action by an inmate (Ward) of the Virginia prison system seeking damages under
The disciplinary proceeding, which provided the subject matter of this action, arose out of a disturbance among the prison inmates in the recreational area of the
The procedure for processing a report such as that filed by Corporal Goode against the plaintiff is carefully prescribed by Guideline No. 861 of the Virginia Department of Corrections. Under this Guideline, a reporting officer, after submitting his report, is enjoined from any further involvement with the proceeding, “with any witnesses the accused inmate may request, with other witnesses, with members of the Adjustment Committee, or anyone else involved with the adjudicatory process before judgment is made on the charge.”4 The report itself is initially reviewed by the reporting officer‘s superior,5 and after such review, if found “in good order“, the charge is referred to the Adjustment Committee, which consists of a Chairman and two assigned officers, for trial and disposition.6
The Guideline provides that when a charge is referred to the Adjustment Committee, “the accused inmate must be advised of his/her rights in connection with the disciplinary process.” Where an inmate is charged as here with a “Major Violation“, such rights include (a) the right at his option either to employ a private attorney or to utilize the services of an inmate or staff adviser “to assist in the presentation of a defense,” (b) “to present the voluntary testimony of witnesses, either inmates, correctional personnel or others, in his/her own behalf,” (underscoring in text) and (c) to “cross-examine for relevant purposes, the
While the Guideline provides that any witness requested to appear by the accused inmate has “the option to appear or not,” it mandates that prison officials shall endeavor to persuade the requested witnesses to give a statement of their knowledge of relevant facts and, if they decline, such requested witnesses, “be they inmates or employees,” must “state in writing the reasons they refuse to appear.” The Guideline warns that if it later appears that “pertinent employee testimony was not given when requested, a reversal may be ordered.”8
The plaintiff in this case waived the right to an attorney given him under the Guideline but did elect to be assisted at the hearing by an inmate adviser of his selection, one Patterson, who was assigned to assist him. As required, the plaintiff listed three witnesses, all fellow inmates, whose testimony or statements he wished to use at the hearing.
Statements of their knowledge of the incident in the charge were procured from all witnesses requested by the plaintiff to appear at the disciplinary hearing, and these statements were furnished the plaintiff before the hearing began.9 At the hearing the Chairman, the defendant Gardner, presided. Under the prison Guideline he was
At the hearing before the Adjustment Committee chaired by the defendant Gardner, on the charge filed against the plaintiff, Corporal Goode was called as a witness, testified and was cross-examined by the plaintiff. In his testimony he said that, after the officers had subdued Graham and had him under control, the plaintiff intervened and kicked Graham “in the ass.” On cross-examination he was asked what he meant by asserting in his report that the plaintiff “was resisting-wrestling.” Goode responded that “in my point of view it looked like you (referring to the plaintiff) were wrestling with the officer. And after you had kicked Graham in the ass I had no other alternative but to figure that out in my mind.” Later, the plaintiff, testifying in his defense, was asked directly by a member of the Committee:
“From what I understand when Mr. Finkbiner and officer Hawkins, Corporal Goode had the inmate that was trying to stab everybody down on the ground. And you went up and kicked him in the ass?”
He answered this direct question,
“Yeah.”12
This frank admission of his conduct by the plaintiff was accepted by the Chairman as well as by the other members of the Committee as the dispositive fact on the issue of the plaintiff‘s guilt or innocence of the charge of “[d]elaying, hindering or interfering with a [prison] employee in the performance of his/her duties [during a prison commotion].” After the plaintiff had made this admission, the Chairman inquired of him, “do you have anything you want to say about these witness statements?” The plaintiff replied, “No, I don‘t have nothing.” The Chairman then addressed the inmate‘s adviser, inviting any response he might like to make. The adviser expressed a desire to make a motion. The motion is not in the record but as the grounds of appeal, later filed by the plaintiff and his adviser, demonstrate, they restated his claim of variance between charge and proof and his assertion of an absolute right to call the witnesses and to cross-examine them.
After reviewing the witnesses’ statements, no one of which contradicted the plaintiff‘s own admission of kicking Graham after the latter had been thrown to the ground and subdued by the officers, the Chairman “exclude[d]” such witnesses on the grounds that their testimony would be repetitive or “accumulative,” as he put it, and irrelevant as presenting nothing “that would make any difference whatsoever on the point in question.”13 The Chairman, however, read the statements into the record for such consideration as the other members of the Committee might wish to give such statements.
After consideration of the record, which was tape-recorded as required under the prison Guideline,14 the Committee found the plaintiff guilty of the offense charged and imposed as a penalty “10 days loss of recreation time” coupled with a recommendation of an “I.C.C. review.”15 From this deter-
In his complaint the plaintiff stated his cause of action against the defendant Gardner in these words:
“Plaintiff contends that Chairman Gardner knew that the charge was false, and this is why he did not want plaintiff‘s witnesses present and the accusing officer‘s [sic] who were Mr. Finkbeiner and Officer Hawkins, and plaintiff‘s witnesses names were M. Moore # 105266; B. Arnold # 103942; Orpiano. All witnesses were not allowed to be present.”
Gardner, as well as his co-defendant Johnson first moved for summary judgment. That motion was denied. The cause thereafter came on for trial. In his testimony at the trial the plaintiff explained his objection to the use of the statements of his witnesses at the disciplinary hearing as follows: “Statements were read into the record, but you really couldn‘t understand what he was saying (referring to the Chairman Gardner) because he was reading too fast.” This was the stated reason whereby he found error in the Chairman‘s challenged ruling. He, also, raised the point that neither Hawkins nor Finkbeiner was present.
But, on the merits of the charge itself, he admitted that there was a “general scuffle” involving Graham and the officers who were trying to subdue and control Graham. During this scuffle the plaintiff kicked Graham. Unlike his testimony before the Adjustment Committee, he claimed that when he kicked Graham, the latter was “trying to stab” him, and “was attacking” him. In short, he was asserting self-defense in repelling an attack from Graham and not intervention with the officers after the latter had brought Graham under control and had him defenseless on the ground. Such a defense hardly seems to fit in with the fact that he kicked Graham “in the ass,” while Graham was on the ground with apparently his back to the plaintiff. That is an odd defense, under the circumstances, one which is about as credible as the claim of self-defense where the victim had been admittedly shot in the back.
Gardner testified in his own defense. He asserted his good faith and denied any malice toward the plaintiff. He added that, while he had seen the plaintiff in the prison, he knew nothing about him and specifically had no bias of any kind against him. This testimony of Gardner was not disputed by the plaintiff.
The district court‘s findings of fact and conclusions of law at the conclusion of the testimony, as they related to the defendant Gardner, were:
“The case against Mr. Gardner arises out of his participation as the chairman of the Adjustment Committee. And the complaint basically is that Mr. Ward (the plaintiff) considered himself charged with interfering with officers and did not feel that [evidence] should have been introduced concerning his kicking another inmate.
“Mr. Ward takes exception to the Adjustment Committee‘s finding that the conduct of kicking another inmate was interfering with the work of the officers. The Court disagrees, because the Court finds that the evidence before the Adjustment Committee was that the rampant inmate, Mr. Graham, had been brought under control by Corporal Goode and had been subdued before the kicking took place.”
The Court found, also, that it was probable that the plaintiff had not requested the presence of Hawkins and Finkbeiner and that the “loss of eight occasions to be out in the prison yard or in the recreation yard is [not] of a constitutional dimension, and I so hold.” It accordingly dismissed the action against the defendant Gardner.18
On appeal to this court the plaintiff has confined his claim of constitutional error to the denial by the defendant Gardner of his right to call and cross-examine his listed witnesses at the disciplinary hearing. The panel opinion found that this denial of the right of the plaintiff to call his witnesses was a violation of the plaintiff‘s procedural due process rights.19 It based this conclusion on its construction of the decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), which, in its view, held that an inmate facing a disciplinary hearing had an absolute right to call witnesses in his behalf unless “to do so [would] be unduly hazardous to institutional safety or correctional goals.”20 It seemingly recognized no right to refuse to call witnesses whose testimony would be irrelevant or repetitious. Having found that there was no showing that “institutional safety or correctional goals” would have been hazarded by calling the witnesses requested by the plaintiff in this case, it concluded that there had been a constitutional deprivation of the plaintiff‘s procedural due process rights as a result of the defendant Gardner‘s action in refusing to call the witnesses because, in his opinion, their testimony would be irrelevant and cumulative. However, it declared the plaintiff had failed to show any special injury because of this constitutional deprivation beyond the loss of eight recreational periods. Under the circumstances, it concluded that the plaintiff was entitled to recover only nominal damages, which it fixed at $1.00. The dissent would, however, have granted Gardner immunity and have dismissed the action. Upon proper motion, we granted en banc rehearing of the cause. We now affirm the dismissal by the district court of the action against Gardner but on grounds different than those assigned by that court.
The critical question on appeal, as we perceive it, is whether Gardner, in ruling as he did during the disciplinary hearing on the right of the plaintiff to the testimony of the three witnesses requested by the plaintiff at the disciplinary hearing, enjoyed immunity, whether absolute, qualified or both. In resolving this question, we assume at this stage of the appeal that the panel opinion is correct in its conclusion that a prison inmate at a disciplinary hearing is constitutionally entitled to present live witnesses save in the sole instance where it can be fairly said that institutional safety or goals will be jeopardized, though we hasten to add, as we later observe, we do not think that either Wolff or the later case of Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976) is so limited. With that assumption, however, we find
In Butz the Supreme Court declared that “[a]lthough a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations, our decisions recognize that there are some officials whose special functions require a full exemption from liability.”21 It proceeded to identify certain of those officers whose “special functions” had been properly found traditionally and constitutionally to afford them absolute immunity from liability for mistakes of judgment, whether of law or fact. These, among others, were judges, jurors, grand and petit, prosecutors and witnesses.21a Butz, however, broadened this constitutional rule of absolute immunity to include certain members of the executive branch, both federal and state, whose participation and role in administrative adjudicatory proceedings could be said to be ” ‘functionally comparable’ to that of judge”22 in the typical judicial proceedings. The Court emphasized that the applicability of the broadened rule of absolute immunity to include certain administrative proceedings under the “functional comparability” test of Butz23 did not depend on the title or status in the bureau-
It would seem fairly clear that the action of the defendant Gardner has the typical characteristics of a “formal” adjudicatory decision involving as it did none of that “wide spectrum of conferences, discussions and settlements outside the framework of a formal hearing” that mark an “informal” hearing28 for which there is not absolute immunity. The action by Gardner providing the basis for plaintiff‘s claim of a constitutional deprivation was a ruling by him in his capacity as Chairman of the Adjustment Committee on the relevancy of testimony in the course of a formal hearing itself. Under the Guideline of the Division of Corrections that was the Chairman‘s responsibility. Under the Guideline he was explicitly authorized to rule out testimony or statements of witnesses which he found to be irrelevant or repetitious. As we later construe both Wolff and Baxter,29 this right to exclude irrelevant and repetitious witnesses or testimony is recognized and upheld. Whether Gardner‘s ruling in exercising that right was correct or not would,
Moreover, proceedings before the Adjustment Committee involving a charge of a “Major Violation” by a prison inmate are “adversary in nature,” again as typical in judicial proceedings. The inmate is entitled in such proceedings to be represented by counsel or, if he elects, to be afforded the assistance of a fellow prison inmate; he has a right to confront and cross-examine his accusers, either personally or by his lawyer or inmate adviser; he has a right to present either oral testimony or written statements in his behalf; and his lawyer or inmate adviser may “in addition, present arguments in behalf of the accused inmate.” Finally, the Guideline concludes with this paragraph:
“It is the purpose of the Adjustment Committee process to discover the truth regarding the charges against an inmate. In this connection, the Chairman should encourage anyone present for a hearing to ask any relevant question or make any statement which tends to make the truth more apparent.”30
Significantly, the regulations and the Guidelines are carefully drafted to insulate not only the Chairman but all members of the Adjustment Committee from any outside influence or partiality and to assure that the decision on guilt or innocence is made “exclusively” on the record as made at the hearing. Thus, they provide certain very definite “safeguards” intended to assure that all persons on the Adjustment Committee be “as unbiased as possible” and that any “appearance of impropriety” be avoided. No one who was the reporting officer, the reviewing officer, or “any other employees who witnessed the events surrounding the alleged offense, or who spoke to anyone concerning the offense, or who by any other means became familiar with the facts of the alleged offense so as to render any verdict on the facts improper because of such prior knowledge or involvement” can serve on the Committee (Italics added). Further, the Guideline enjoins the Committee members that they “shall listen to all testimony offered by the reporting officer, accused inmate and all witnesses ... shall require the reporting officer and all witnesses to provide all details concerning the alleged offense ..., shall question each witness as the need arises in order to clarify in their own minds the facts surrounding the
There is also unquestioned authority in the Guideline for an appeal by the inmate in order to challenge any ruling made by the Chairman during the hearing or the decision of the Committee itself. When the violation is within the classification of a “Major Violation” as in this case, an aggrieved inmate has not one but actually two levels of appellate review. First, he may appeal to the Superintendent or Warden of the institution itself, and, if he is not satisfied with the decision of the Superintendent, he may then appeal to the Deputy Director of the Division of Adult Services in the central offices of the Division of Corrections32 by noting an appeal within ten (10) days after the Superintendent or Warden
Finally, there can be no dispute that if absolute immunity is denied in this case, the members of the Adjustment Committee involved in prisoner disciplinary hearings in Virginia will be subjected to a real threat of burdensome and expensive litigation, much of it in “retaliatory response” to the decisions of the Committee. The proclivities of prison inmates to engage in litigation are prodigious. It has been estimated that between 30 and 40 percent of our appeals in this Circuit concern proceedings by prison inmates.33 That burden on the courts will be immeasurably increased by allowing suits arising out of disciplinary hearings which have been as carefully structured as this one has been in order to provide every reasonable “safeguard” of an inmate‘s right to a fair and impartial hearing within the prison context. It is of no moment that the award in such case—as it was in this case—may be but a dollar. The award, however, minimal, would carry with it a right to attorney‘s fees, which could run into a substantial sum. And while generally the State provides the officer sued with counsel, this is not obligatory on the State and, if the claim is only against the officer personally, it is by no means certain that the State will give the same attention to the defense where it is only the personal liability of the officer which is at stake, as it would if a judgment against the State itself were threatened. This suggests that a prison officer, sued in a case such as this, should give serious consideration to retaining personal counsel at his own expense.
Moreover, lawsuits, whether meritorious or not, are always burdensome, harassing, and time-consuming. It is difficult enough to secure qualified prison employees. That task will be made more difficult, particularly in securing officials to serve on Adjustment Committees, if, however fair they try to be, such officials are subjected to the hazards of repeated litigation by disappointed defendants in disciplinary hearings. Ordinarily, prison officials are not generously rewarded for their services and the threat of an award against them personally would be a hazard many would feel themselves not justified in risking. The prison system itself will also likely be seriously hampered by a denial to the members of the Adjustment Committee absolute immunity, since prison employees will unquestionably be resistant to accepting appointment as members of an Adjustment Committee if acceptance entails the serious hazard of being sued personally for their actions strictly as members of the Committee.
For all these reasons, the claim of absolute immunity in favor of the defendant Gardner falls manifestly within the criteria fixed by Butz for absolute immunity. We would not be misunderstood, however. We are not concluding that in connection with all prison disciplinary hearings the members of the Adjustment Committee enjoy absolute immunity. Perhaps this case would be different if the plaintiff had been denied absolutely any “adversary” hearing or if he had been denied any notice of the charge against him, or if he had been denied the right to confront and cross-examine his accusers at the disciplinary hearing (though this right is circumscribed in Wolff), but
It is highly unlikely that, if a similar ruling had been made in a state criminal trial, for instance, we would in later habeas proceedings have found constitutional error. Errors in the admission or exclusion of evidence in a state criminal trial rises to the level of a constitutional deprivation only if the error is of such magnitude as to deny fundamental fairness. See Lisenba v. California, 314 U.S. 219, 227-28, 62 S.Ct. 280, 285, 86 L.Ed. 166 (1941); Freeman v. Slayton, 550 F.2d 909, 911 (4th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1150, 51 L.Ed.2d 566 (1977); Chapman v. Maryland, 516 F.2d 1277, 1278 (4th Cir.), cert. denied, 423 U.S. 935, 96 S.Ct. 293, 46 L.Ed.2d 267 (1975); Grundler v. North Carolina, 283 F.2d 798, 802 (4th Cir.), cert. denied, 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 738 (1960); Bryson v. Alabama, 634 F.2d 862, 865 (5th Cir. 1981); Smith v. Warden, Maryland Penitentiary, 477 F.Supp. 500, 501 (D.Md.1979); Foster v. Watkins, 423 F.Supp. 53, 55 (W.D.N.C.1976), aff‘d., 570 F.2d 501 (4th Cir. 1978). Certainly, there was no fundamental unfairness in the evidentiary ruling by Gardner in this case. The three witnesses listed by the plaintiff could have added nothing by their testimony that could have changed the effect of the plaintiff‘s own admission on the issue of plaintiff‘s guilt. To repeat: It is in the context of ruling on the admissibility of such evidence and not on the right of the plaintiff to an adversary hearing after notice of charges that we find that the defendant Gardner enjoyed absolute immunity.
Our ruling illustrates the principle that every case in which immunity is claimed for members of the Adjustment Committee should be considered on its own facts and with reference to the particular procedure under which the disciplinary hearing is held. To qualify for absolute immunity, the action involved must be of a judicial character and the procedure followed in connection with the hearing must include the “safeguards” of a fair and impartial proceeding as stated in Butz. Thus, absolute immunity will not attach to action taken by the members of a Committee whose functions may be properly classified as administrative or investigative rather than adjudicatory. Moreover, the procedure followed in the hearing must insure for the accused inmate, as far as reasonably practical, similar rights to those the typical judicial defendant would be entitled to before a tribunal realistically insulated from prejudicial influences or bias and from whose rulings and decisions the inmate would have an effective means of appeal. Where such rights are not so “safeguarded,” the criteria for absolute immunity as established in Butz are not met.
There are a few cases involving a claim of immunity in favor of the members of a prison disciplinary committee in which absolute immunity was denied precisely because the procedure mandated did not accord the accused inmate sufficient “safeguards” of fairness and impartiality to qualify under Butz. Such cases are, however, easily distinguishable from the case under review. Hilliard v. Scully, 537 F.Supp. 1084 (S.D.N.Y.1982), the most recent of these cases, is typical of these cases where absolute immunity under
Similarly, in Mary and Crystal v. Ramsden, 635 F.2d 590 (7th Cir. 1980) the procedure for the trial of inmates at a female juvenile center was properly found not to offer sufficient “safeguards of fairness and impartiality” to mandate absolute immunity for the members of the institutional committee holding inmate misconduct hearing. The “[g]irls accused of misconduct [under the procedure] were not allowed to have an advocate at the hearing, were not allowed to have their own witnesses at such a hearing (although the committee did sometimes interview other persons involved in the incident), and were not given the opportunity to confront [or to cross-examine] any witnesses against them.”36 It is obvious that that procedure is far removed from that mandated by the Guidelines of the Virginia Department of Corrections.
In Jihaad v. O‘Brien, 645 F.2d 556 (6th Cir. 1981), the hearing of a charge that the plaintiff-prisoner had refused an order to shave his beard resulted in a
Contrary to these cases, the Virginia procedure places every reasonable constraint on any unfair or prejudicial influence upon the Adjustment Committee and seeks to arm the accused inmate with every procedural right he would have enjoyed if tried in a court. His appellate rights extend beyond those at his institution to a separate division of the Department of Corrections reasonably removed from the influence of any one at the state institution where the alleged infraction occurred. This case presents, as we have said, a case which fits fully the test of “functional comparability” on the part of the members of the Adjustment Committee, as stated in Butz, for absolute immunity. Cf., Birch v. Mazander, 678 F.2d 754, 756 (8th Cir. 1982).
Though we are convinced and so hold that the defendant Gardner under the facts of this case was entitled to absolute immunity from an award of damages in favor of the plaintiff, we would perhaps be remiss not to take note of the possibility that the defendant Gardner may have been likewise qualifiedly immune from damages liability. In Butz the Supreme Court declared categorically that, “Federal officials will not be liable for mere mistakes of judg-
As the last term ended, the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), reiterated (with one amendment later stated) the rule stated in Butz and Wood:
“We therefore hold that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”41
The Supreme Court added that a “threshold immunity question” in every action against a public official, whether federal or state, exercising discretionary functions is “whether [the currently applicable law] was clearly established at the time an action occurred.” It proceeded to declare that “[u]ntil this threshold immunity question is resolved, discovery [or further proceedings in the case] should not be allowed.” In resolving this “threshold” question, the con-
The initial “threshold” question thus to be answered in resolving the claim of qualified privilege in this case would be whether the right which the plaintiff claims was violated by Gardner was “clearly established” at the time of the alleged violation. If it was not, Gardner is plainly immune from liability under Butz, as restated in Harlow v. Fitzgerald. The constitutional right which the defendant Gardner was alleged to have violated was the denial of the plaintiff‘s right to call live witnesses in his defense at his disciplinary hearing on the
Actually, though, neither Wolff nor Baxter, in our opinion declares absolutely that, at a prison disciplinary hearing, the testimony of a witness whose testimony is cumulative or irrelevant may not be found inadmissible. In the very paragraph in Wolff relied on by the plaintiff the Supreme Court posited that “it would be useful for the [Adjustment] Committee to state its reason for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases,” though it prefaced such statement with the declaration it was not “prescrib[ing] compliance with such sugges-
It should probably be observed, too, that if the Adjustment Committee were without the right to exclude irrelevant or cumulative evidence—as apparently the plaintiff would argue—it would be subject to a more stringent rule than would the court itself in a judicial trial where both cumulative and irrelevant testimony may be excluded. See Hamling v. United States, 418 U.S. 87, 127, 94 S.Ct. 2887, 2912, 41 L.Ed.2d 590 (1974); United States v. Dominguez, 604 F.2d 304, 310 (4th Cir. 1979), cert. denied, 444 U.S. 1014, 100 S.Ct. 664, 62 L.Ed.2d 644 (1980); United States v. Clark, 617 F.2d 180, 187 (9th Cir. 1980); United States v. Peters, 610 F.2d 338, 340 (5th Cir. 1980); and Rules 401 and 403
Since it is plain that it is not “clearly established” in this Circuit or in Wolff or in Baxter, that the defendant Gardner as Chairman of the Adjustment Committee did not have the discretion to hold inadmissible testimony that he found to be irrelevant or cumulative, the defendant was entitled as a matter of law to qualified immunity for his evidentiary ruling, which is the subject of the alleged constitutional violation, whether the ruling was erroneous as an abuse of discretion or not. We reiterate, though, that we are of opinion Gardner was entitled to absolute immunity for his ruling.
For the reasons stated, we affirm the dismissal by the district court of the action against the defendant Gardner.
Accordingly, the judgment of the district court is
AFFIRMED.
K. K. HALL, Circuit Judge, concurring:
As I read the majority opinion, the law of this case is that under the facts presented, the defendant, Gardner, enjoys absolute immunity since he conducted a formal hearing in accordance with the guidelines of Butz v. Economou. I concur wholeheartedly in that determination. However, the opinion speculates that “Perhaps this case would be different if the plaintiff had been denied absolutely any ‘adversary’ hearing or if he had been denied any notice of the charge against him, or if he had been denied the right to confront and cross-examine his accusers at the disciplinary hearing . . . .” This is pure dicta, which adds nothing to the case and seems to be sugar coating for a rule of law that I find is not bitter and needs no sweetening.
I concur, seeking refuge in the hope that the dicta in this case will be recognized as such and treated as unworthy of future consideration.
MURNAGHAN, Circuit Judge, concurring:
What Judge Russell has written concerning qualified immunity compellingly leads to the conclusion that the judgment of the district court should be affirmed. As for absolute immunity, the point is a complex one not requiring decision and should be
Judge Phillips authorizes me to state that he joins in this concurring opinion.
HARRISON L. WINTER, Chief Judge, dissenting:
I continue to think that this case is an inappropriate vehicle for considering the immunity, if any, which may be claimed by the chairman of a prison disciplinary committee. But, if as a result of the invitation of the dissenting panel member, defendant Gardner belatedly urges this defense and the court is determined to consider it, I find my views at variance with those of my brothers. Hence I write separately.
The majority holds that Gardner is entitled to absolute immunity for the evident error that he made in conducting the hearing which resulted in the denial of Ward‘s constitutional right to call witnesses in his behalf. It does so as an original proposition on its construction and application of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The exact question before us, or one so similar as to be indistinguishable, has been considered by a number of other courts. In an unbroken line of authority, the ruling has been that prison officials enjoy only qualified immunity. See Jihaad v. O‘Brien, 645 F.2d 556, 561-62 (6th Cir. 1981); Chavis v. Rowe, 643 F.2d 1281, 1288 (7th Cir. 1981); Hayes v. Thompson, 637 F.2d 483, 489-90 (7th Cir. 1980); Bills v. Henderson, 631 F.2d 1287, 1299 (6th Cir. 1980); Bogard v. Cook, 586 F.2d 399, 410-12 (5th Cir. 1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979). See also Craig v. Franke, 478 F.Supp. 19 (E.D.Wis.1979). There is no case which supports the view of the majority.
The cases which have held that prison officials, including members of a disciplinary adjustment committee, have only qualified immunity have all stemmed from the ruling in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). There, in the context of a prisoner‘s suit for interference with his mailing rights, the Court held that “prison officials and officers . . . were not absolutely immune from liability in this
In focusing on one aspect of Butz to the exclusion of the other relevant immunity decisions, the majority overlooks a central theme of this area of our jurisprudence: i.e., that where immunity is accorded to executive officials, qualified immunity is the rule and absolute immunity the rare exception. See Scheuer, 416 U.S. at 242-45, 94 S.Ct. at 1689. See also Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690 at 2700, 73 L.Ed.2d 349 (1982); Wood, 420 U.S. at 320, 95 S.Ct. at 999. The Butz opinion itself was quite clear on this point and on the procedural corollary that “officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Butz, 438 U.S. at 506, 98 S.Ct. at 2910. Just this past term, the Supreme Court reiterated that “[t]he burden of justifying absolute immunity rests on the official asserting the claim.” Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982).
These repeated admonitions make clear that it is improper for a court to reach the issue of absolute immunity where that defense has not been litigated in earnest by the defendant official. But that is precisely
In short, the question seized upon by the majority would be better left for another day. If the issue is to be addressed prematurely, however, I must also take exception to the majority‘s decision on the merits. The administrative law judges held absolutely immune in Butz are far different creatures from the members of a prison disciplinary committee. The former belong to a legally trained professional corps whose independence is guaranteed by numerous means under the Administrative Procedure Act; the latter are any “key” prison employees designated by the warden who lack direct knowledge of the matter to be adjudicated. Although disciplinary committee members must, under the applicable regulation, have a working knowledge of prison disciplinary regulations, see Va. Dept. of Corrections Guideline No. 861, VI(H)(1)(b), they are not required to have any knowledge of constitutional law or civil rights.
One of the linchpins of Butz is the presence of substantial safeguards to control unconstitutional conduct by the person granted immunity. The majority finds the safeguards here in a prisoner‘s right to appeal an adverse disciplinary action to the warden or superintendent of the institution and from him to an officer of the central state administration of the prison system. To me this “safeguard” is more illusory than real. I can hardly think that the prison head, whose duties include selecting the members of the disciplinary committee and deciding which member shall be chairman, is reasonably guaranteed to be an objective reviewing officer. Nor can the state department administering the prison system be expected to function as an impartial arbiter of conflicts between the institutional interests of the prisons and the rights of inmates. Without impugning the competence or integrity of prison administrators, I am unable to view this system of review as a reliable check on the discretion of prison disciplinary committees, nor can I accept disciplinary committee members as the functional equivalents of the administrative law judges immunized in Butz.
The mere fact that disciplinary committees exercise an adjudicative function does not entitle them to absolute immunity. The school board members who were defendants in Wood played a quasi-judicial role in disciplining the plaintiff students, yet the board members’ claim of absolute immunity was rejected. 420 U.S. at 320-21, 95 S.Ct. at 1000. The prison disciplinary hearings from which the present case arose seem much more closely analogous, in form and function, to the school disciplinary system at issue in Wood than to the administrative enforcement process implicated in Butz. Under the applicable guideline, prison disciplinary hearings take place one to four days after the alleged infraction. See Va. Dept. of Corrections Guideline No. 861, VI(F)(2). The members of the disciplinary committee are not professional hearing officers but ordinary prison officials temporarily diverted from their usual duties. Although the committee‘s decisions are supposedly made on a reviewable record, transcripts of the proceedings—as amply demonstrated in this case—are often unintelligible at potentially significant points. To label such hearings
The majority‘s grant of absolute immunity rests, not only on the supposed “formality” of the prison disciplinary system, but also on the proclivity of prison inmates to engage in “burdensome and expensive litigation.” Such a problem undoubtedly exists, but absolute immunity is neither an appropriate nor an effective means of solving it. Butz itself teaches that the Federal Rules of Civil Procedure provide the proper safeguard against frivolous suits. In withholding absolute immunity from certain federal executives, the Butz Court observed:
Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss. Moreover, the Court recognized in Scheuer that damages suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of [qualified] immunity. See 416 U.S. at 250 [94 S.Ct. at 1693] . . . . In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits.
Butz, 438 U.S. at 507-08, 98 S.Ct. at 2911 (footnote and parallel citations omitted).
The majority apparently assumes that the federal rules are inadequate to the task of separating substantial from insubstantial claims in the context of prisoner litigation1 relating to discipline. This is an assumption I cannot share, especially in view of the fact that the Supreme Court has recently modified the elements of qualified immunity to make that defense more susceptible to summary disposition. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Under Harlow, qualified immunity no longer hinges on a factual inquiry into the defendant‘s subjective good faith but instead rests solely “on the objective reasonableness of [his] conduct, as measured by reference to clearly established law.” Id. 457 U.S. at 818, 102 S.Ct. at 2738 (footnote omitted). After Harlow, the majority‘s decision in the present case will add little to the ability of the courts to dispose of groundless claims quickly and efficiently. Indeed, the majority‘s opinion in this regard is largely self-defeating because it holds that absolute immunity does not attach to “all” disciplinary hearings. It states as a principle that “every case in which immunity is claimed for members of the Adjustment Committee should be considered on its own facts and with reference to the particular procedure under which the disciplinary hearing is held.” The resources supposedly conserved by the majority‘s decision will surely be squandered if every case must be separately considered to determine whether or not the new rule of absolute immunity will apply.2
In my judgment, whatever gain today‘s decision may confer in terms of reducing meritless litigation is negligible in proportion to the extreme nature of the majority‘s chosen means—the complete insulation of a class of prison officials from liability for intentional or otherwise inexcusable violation of constitutional rights. See Wood, 420 U.S. at 320, 95 S.Ct. at 999. The Supreme Court has repeatedly “recognized that it is not unfair to hold liable the official who knows or should know he is acting outside the law, and that insisting on an awareness of clearly established constitutional limits will not unduly interfere with the exercise of official judgment.” Butz, 438 U.S. at 506-07, 98 S.Ct. at 2910. I would adhere to these principles in the present case and therefore, if the immunity question is to be reached at all, I would recognize only a qualified immunity in favor of prison disciplinary officials. Under Harlow, our inquiry should be whether defendant Gardner “violate[d] clearly established ... constitutional rights” when he refused to call plaintiff‘s witnesses at the disciplinary hearing. Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738 (1982).
I continue to believe that a prisoner‘s right to call witnesses at such a hearing was clearly established in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), and Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). I reject the notion that what has been unambiguously decided by the Supreme Court can be rendered ambiguous by the contrary decision of a district court and a summary affirmance by a panel of the court of appeals. See Pollard v. Baskerville, 481 F.Supp. 1157, 1161 (E.D.Va.1979), aff‘d mem., 620 F.2d 294 (4 Cir. 1980). In my view, moreover, Gardner‘s characterization of the proffered testimony as irrelevant or unduly cumulative was so unreasonable that it invokes no exception to plaintiff‘s right to call witnesses and indeed exceeds the scope of qualified immunity.2 Any serious doubt that can be admitted on these points simply underscores how far the majority has reached in order to cloak Gardner in absolute immunity. If the constitutional point in question was not clearly settled or if Gardner‘s determination was not unreasonable, the majority‘s every concern in this case could be amply resolved by applying the doctrine of qualified immunity.
Because to my mind today‘s decision is both unnecessary and unsound, I dissent.
Judge ERVIN authorizes me to state that he joins in this opinion.