Louis Cale v. J.R. Johnson, Warden, F.C.I., James Wahl, Food Service Administrator, F.C.I., Milan, and Melvin Persky, Inmate and Clerk to James Wahl

Farris, attention. “Oh, Cale stated to I’m NELSON, Before MARTIN and glad you it’s Mr. Farris. You are fair. Judges, CONTIE, Circuit Senior These_are trying up.” to set me At Judge. Circuit time, get shouted Farris to packet from Cale. Farris did not know CONTIE, Senior Judge. Circuit what statement, Wahl meant appeals Louis Cale from the district piece Cale paper threw a which was grant summary judgment court’s square folded in a small top Bivens action.1 following reasons, For the serving main directly line in front of Farris. we reverse the district court’s packet This subsequently was determined and remand this proceed- further marijuana. contain again Cale became ings. very agitated and shouted accusations at Persky. I. Wells, duty supervisor, correctional

Appellant Louis was an inmate at was called to the scene of the incident. He the Federal Correctional Institution at Mi- ordered correctional officers to escort Cale lan, Michigan (F.C.I. Milan) on November to administrative detention and instructed date, 1982. On that at approximately Wahl to file an report documenting incident 10:15 a.m. Cale took the diet lunch appropriate line charges. thought Cale was Agents 1. See Bivens v. Six Named Unknown 2. "Get receiving the duces” refers to an emer- Narcotics, Fed. Bureau gency call. 29 L.Ed.2d 619 the Honorable that of Joiner marijuana, Charles possession been filed Subsequently, Wahl others; George LaPlata. toward threats had made summary judgment. motion if Cale third therefore, believed Wells 17, 1987, the dis- popu- Thereafter, September general remain allowed for sum- life motion own granted or his court of others lives trict the lation sum- granted sponte jeopardy. mary judgment, in sua have been Persky,3 inmate favor of mary judgment segrega- in administrative remained Cale complaint. the dismissed and 1982, 22, when through November tion completed. incident was the We are investigation appeal. timely this filed Cale 1982, 24, a three-member November On the district decide whether asked con- had which committee discipline unit summary granting erred report written the incident sidered Preliminarily, Persky. of Wahl and favor threatening anoth- him with charging Cale authority to entertain our must consider nar- possession bodily harm and er action context. Bivens not commit- had that Cale concluded cotics prison’s bureau violatiоn ted II. im- were No sanctions policy. disciplinary The inci- by the committee. Cale posed on A. expunged, been have report would dent — request. U.S. -, Cale’s at retained it Chilicky, v. In Schweiker (1988),the 2460, L.Ed.2d S.Ct. se 1983, proa filed January On recently reconsidered Supreme Court vio- conspiracy alleging action, Bivens In that actions.4 Bivens scope of pro- proper due and substantive procedural late authority to its Court evaluated punishment. and unusual cruel cess and follows: as actions J.R. Bivens Warden entertain included defendants Original Persky. Wells, Wahl, and Johnson, Fevurly, victim of held this In Court by federal violation Amendment Fourth district court 18,1983, the September On of their au- color acting under officers in favor summary judgment granted money dam- for bring may suit thority re- Wahl Fеvurly, and Wells. Johnson, court. in federal officers ages ‍​​​‌‌​‌​​​‌​​‌​‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌​​‌‌‌‌​‌​‌‌​‍against summary judgment. for his motion newed Narcotics Fed. Unknown 28,1985, Bivens Six the district Thereafter, August 1999, 29 S.Ct. and 403 U.S. report Agents, magistrate’s [91 adopted a Con- that noted deni- The Court recommended L.Ed.2d 619]. which recommendation for summary provided specifically gress motion second al of Wahl’s Fourth magistrate, ‘the remedy and According to the such a judgment. eighth many words process not in so does procedural Cale’s merit. an award were its enforcement theories provide amendment continued, consequences magistrate However, for the damages money “ Nevertheless, finding to whether dispute as is a factual ‘There its violation.’ are there marijuana counselling hesitation planted Persky special factors ‘no doubt raise some action circumstances of affirmative in the absence If was involved.’ Wahl congressional or not explicit whether ‘no Congress,’ substan- plaintiff, may ‘frame’ damages did fact money declaration’ may have been protections relied on awarded, majority tive due not be ‘ rights impeded.” legal “where rule pro- statute invaded, a federal been transfer- May On for such right to sue general vides Honorable docket from the red jurisdiction. subject hence, matter question of Persky’s challenge sua does not Appellant 398-402, S.Ct. Bivens, U.S. at see Yashon See improper. But sponte dismissal X, judgment). Cir.1984). concurring in (Harlan, 2005-08 Gregory, F.2d 547 at 2466. Chilicky, S.Ct. see also ques- is a scope actions proper оf Bivens 4. and, competency, courts’ the federal tion invasion, Lucas, federal courts use Bush v. 368 [103 2404, 2406, good to make S.Ct. remedy available 76 L.Ed.2d 648] ’ wrong done.” sum, money actions’ for ‘special So-called‘Bivens dam concept factors counselling ages against federal officers have subse hesitation the absence of by Congress’ affirmative action quently permitted under has proved to appropriate judicial include an violation of the Process Clause of Due deference Amendment, congression- to indications that the Fifth Davis v. Pass al man, inaction has not been inadvertent. U.S. 228 [99 design When the government pro- of a L.Ed.2d and the Cruel and 846] gram suggests Congress provid- Unusual Clause of Punishment ed adequate what it considers Amendment, remedial Eighth Green, Carlson v. mechanisms for constitutional violations U.S. S.Ct. L.Ed.2d [100 may that occur in the course of its ad- cases, In each of these as in 15] ministration, we have not itself, created addi- found Bivens Court that there tional Bivens ‘special remedies. counselling were no factors hesi tation in the absence of affirmative ac (some Id. 108 S.Ct. at 2466-68 citations by Congress,’ explicit tion no statutory omitted). In Chilicky, the Court held that prohibition against sought, the relief improper denial Security of Social dis- statutory no exclusive alternative reme ability allegedly resulting benefits dy. by petitioners violations Our more their respond- recent decisions have administration of the continuing dis- cautiously ability program ed suggestions give that review could Bivens not rise remedies to a be into Bivens action. extended new contexts. statutory absence of relief for a Of the Bivens actions considered violation, constitutional for example, Court, Supreme the instant case is most by any does not necessarily imply means similar to Carlson v. In that Green. that courts money should award dam- action brought against Bivens feder ages against the responsible officers al officials for prison violation of a Thus, Chappell violation. v. Wal- eighth er’s rights. amendment The Court lace, 462 U.S. S.Ct. [103 permitted context, a Bivens action that (1983), L.Ed.2d we refused—unani- 586] reasoning as follows: mously create a Bivens action for —to First, the case special involves factors military personnel enlisted alleged who counselling hesitation the absence of they

that injured by the uncon- by Congress. affirmative action Peti- stitutional superior of their actions offi- tioners do enjoy independent such cers and who had no remedy against the status in our constitutional scheme as to Government itself.... suggest judicially that created remedies against might them inappropriate. See also United Stanley, v. States Passman, Davis v. U.S. [442 [99 U.S. ‍​​​‌‌​‌​​​‌​​‌​‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌​​‌‌‌‌​‌​‌‌​‍-, - [107 3054, 3062, S.Ct. 2264, 2277, S.Ct. (1979)]. L.Ed.2d 841] (1987) L.Ed.2d (disallowing Bivens Moreover, 550] if requiring even them to de- actions military personnel ‘whenever respondent’s fend suit inhibit their injury arises activity out “incident perform efforts to duties, their official ’). to service” qualified immunity accorded them Economou, under Similarly, Butz v. again 438 U.S. 478 unanimous- refused — ly S.Ct. create a L.Ed.2d remedy [98 for a Bivens First 895] —to provides adequate protection. ‘arising] Amendmеnt violation out See Davis of an Passman, employment relationship at governed that is 99 S.Ct. at [442 2277], by comprehensive procedural and sub- provisions given stantive meaningful Second, we explicit congres- have here no remedies the United States.’ sional persons declaration injured that recon- justify grounds that major Eighth [T]he violations officers’ federal change intervening an involve sideration money recover availability of new law, the controlling must be agents from the damages a clear correct evidence, the need ef- equally remedy, to another remitted injustice. manifest prevent error Peti- Congress. view fective reconsidera- grounds for applying these Federal nothing point tioners distinc- draw proper to tion, may prove it legislative its (FTCA) or Act Tort Claims stage rest tions Congress meant show history to Early pretrial has reached. proceeding to create remedy or a Bivens pre-empt sub- often be example, may rulings, for constitu- remedy for effective equally to reconsideration ject violations. tional trial.... toward progresses Green, Carlson equal applies with This rationale at 1472. often of freedom degree A... wide Therefore, we case. instant force same when appropriate jurisdic- courts federal hold single judges different presented ac- a Bivens to entertain authority tional sure, unfettered To be court. district alleging prisoner, federal by a brought tion encourage unduly would reexamination to substantive violations of judge rulings one shop from efforts that we and, consequently, process, seem an undesirable another, and appeal. this consider authority to colleagues, comity between of denial none- is desirable freedom Substantial B. pro- continued theless, since particularly argues that the im- appellant provide a much Initially, ceedings may often of deciding law same of the the doctrine for court violated proved foundation district ap- ruled that granted often been Judge LaPlata it has Thus when case issue. the summary judg- summary for motion of a motion denial third pellee not foreclose judge denied does one Judge Joiner ment after judgment by another judgment argu summary reject this of grant We motions. similаr two are matters preliminary other judge, and ment. reopened. often of requirements precise more the Unlike Cooper, Feder- & E. amor- A. Miller Wright, is an the case 18 C. law of judicata, res 790- pp. 4478 commonly de- and Procedure Practice al concept. As most phous omitted). (footnotes (1981) when a posits that 95 fined, doctrine the law, that a upon rule v. Sonotone court decides Products Co. Dictograph In govern Cir.), the (2d cert. 131, continue should 134 decision Corp., 104, stages the 883, subsequent S.Ct. dismissed, U.S. issues same a faced the directs Circuit Second Law the same case.8 L.Ed.2d in the discretion, presented not limit it does similar question a court’s Ryan was Judge “[Wjhether power. case: instant tribunal’s denial Judge Weinfield’s follow so bound doctrine, as now most the case law Under summary motion defendants’ of the understood, improper commonly it is his summa reverse we must judgment holding if con- prior depart consid merits without judgment ry would clearly erroneous is it vinced that injustice. is, wheth right: work manifest it was ering whether law ‘the had become the denial er California, Arizona thereafter accepted case,’ must be (1983) 75 L.Ed.2d Cir Second 54(b) re-examination.” omitted). Fed.R.Civ.P. (citations Cf negative. in the question answered cuit other form an order (stating that reasoned Hand Learned Judge any time to revision subject decision as follows: adjudicating entry before judge the first suggest that one will No liabilities rights and claims all mind change his may not himself parties). all order, overrule his own so that the basis See also Williamsburg Museum, Wax Inc. only оf the doctrine can be that there are Figures, Inc., v. Historic 810 F.2d why judge may reasons the second (D.C.Cir.1987) (holding subsequent that a do so do not exist when the first summary motion for judgment based on an only does. We can think of two such expanded record always permissible); (1) judge reasons: the second should de- Horton, United States v. 622 F.2d fer to the rule of the first as a matter of (5th Cir.1980) (holding that the trial court respect mutual between members of the properly reconsidered the motion for sum- court; (2) defer, same if he does not so mary judgment production because party may shop the defeated about in the reports, admissions, affidavits, and other hope finding judge favorably more record during material pro- the course of disposed. The first clearly reason is un- ceedings had clarified ques- and resolved judicial play tenable: sensibilities should tions of material issues). fact on several part disposition of suitors’ Dearborn, Amen City 718 F.2d Cf. rights. The second reason has indeed 789, (6th Cir.1983)(law 793-94 of the case it, and, much to recommend as a matter rigid doctrine is not so as the rule of res practice, universally regard- judicata; there is well-recognized excep- ed a sufficient treating reason for tion that yield doctrine must to an ruling is, however, first as conclusive. It intervening change in controlling law; the quite another whether under all law of the case doctrine does not foreclose circumstances it ruling makes the first subject-matter reconsideration of jurisdic- immune from reconsideration. tion). Id. at 134-35. appellant instant stresses The Second Circuit reconsidered and re grant the district court’s of summary holding affirmed its in Dictaphone Prod judgment improper only because the Corporacion ucts inCo. De Mercadeo new evidence considered the district Agricola International, v. Mellon Bank court ‍​​​‌‌​‌​​​‌​​‌​‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌​​‌‌‌‌​‌​‌‌​‍was Cale’s affidavit. We need not 43, (2d Cir.1979): 608 F.2d 48 decide whether the new evidence con- In Dictograph Products Company v. sidered court district meets some Corporation, Sonotone 230 F.2d 131 threshold sufficiency, however, test of (2nd Cir.1956),we forth set the standard the Second Circuit has made clear. The governs which consideration of re- [a district court does rely not have to on new newed motion for summary judgment be- evidence; if the justice demаnds of require, judge]. fore a second We held that on a may it simply change Thus, its mind. summary renewed motion judgment turn to the substantive in this judge, before a second the district court i.e., appeal, appellant whether has raised a must balance finality the need for genuine issue of concerning material fact against the forcefulness of new evi- violation of his to substantive due dence and the justice. demands of With process which can be through redressed respect non-appealable to a denial of Bivens v. Six Agents Unknown Named summary judgment, the law of the case Narcotics, Federal Bureau is not a limit jurisdiction, on the court’s 388, 29 L.Ed.2d (1971). practice but a may rule of which de- parted from in the sound discretion of C. the district court. The judge first al- ways power Appellant argues has the change ruling; the district further court granting reflection erred in summary judgment allow a better in- ruling formed by holding accordance case appellee with the con- science fortiori, court. A abuse of authority prison if the his as a official to judge first change plant can illegal drugs his mind after appellant, on denying summary inmate, judgment, change for retaliatory purposes did not ruling, judge appellant’s second should violate process substantive due and does have the power rights. to do so as well. agree. We plaintiff where prosecution malicious court appellate an standard general imprisonment.' danger of ‘in never summary grant reviewing a applies (allega- F.2d suprа, 757 Vasquez, court district as the the same is for issuance harassment police Rule of Civ tion of Federal initially under employs citations).... Lynch, v. 56(c). traffic Gutierrez il Procedure Cir.1987); 10 C. subjected (6th never were plaintiffs F.2d Because Kane, incarceration, Federal they M.&Miller A. Wright, possibility to the (1983). Procedure, for violation a claim state Practice failed may be moving party Dismissal process. burden due substantive “[T]he is, pointing ‘showing’ agency] discharged a state with employment —that court—that [from there district to the out the conscience.’ ‘shock not simply does the nonmov- support evidence sec- absence intended Congress not believe We do v. Ca Corp. Celotex case.” party’s ing of dis- every claim apply tion 1983 trett, proba- employment missal “Where L.Ed.2d can plaintiffs cause, where at least ble burden its carried has moving party reason invidious other to no point an depositions, pleadings, showing political dismissal, race such as their admissions interrogatories, swers protect- conduct other status or beliefs favor record, construed affidavits stat- or federal Constitution by the ed raise a do nonmoving party, ably utes. trial, fact material issue of genuine omitted). (some citations 522-23 Id. at appropri summary judgment entry of court by the cited In one F.2d at Gutierrez, 826 ate.” recog however, McMaster, Re- Human Cabinet McMaster In govern abuse “egregious that an nized Cir.1987), (6th former sources, 824 F.2d to state may be sufficient power” mental rights ac- a civil brought emplоyees state of substantive violation claim based due of substantive claiming violation tion, County Campbell Vinson process. due prosecution. malicious through Cir.1987). 194, 201 Ct., Fiscal position its summarized This as follows: reasoned Vinson, this court sub- prosecution-type malicious respect to component of substantive “The follows: claims process due stantive government certain clause process ‘bar[s] process due substantive The test of the fairness of the regardless actions conduct defendants’ whether claims them implement [and used to procedures v. Cali- Rochin the conscience.’ ‘shocks governmental prevent to thereby] serves 205, 96 165, 72 S.Ct. fornia, of purposes “being used from power previously have We L.Ed. ’ ” case, а mother In that Id. oppression.” prosecu- malicious section measured her from removed had been children whose E.g., Vas- this standard. tion claims Kentucky juvenile by a custody in Ohio Hamtramck, City quez civil brought a officer probation services have Cir.1985). Where 771, 773 officer probation against the rights action claim, section possible a recognized of substan alia, a violation inter alleging, uniformly in- have circumstances officer’s probation The process. due tive incarceration, arrest, situations volved malicious, intentional unlawful, alleged non-traffic violation charges of liberty interest mother’s deprivation recog- have Also, courts laws. egregious anwas her custody children prosecution malicious nized to power sufficient governmental abuse virtually are claim a section support pro on substantive based a claim state constitutional holding that unanimous cess. to respect only with exists protection distinguishable pro- case to instant and not civil The proceedings criminal in- Vasquez because McMaster ceedings. fur- danger of inwas appellant stant recog- declined past, we In the de- disciplinary through liberty loss of ther analogous claim section nize through tention and good-time the loss of tion Inspector the state General into credit as the result of charges filed reported incidents inmate abuse. The Furthermore, him. this case is dis- prisoner alleged subsequently that he had tinguishable from McMaster because in the subjected trumped up disciplinary appellees allegedly instant case ap- framed charges resulting in confinement and a loss pellant in exercising retaliation for his first privileges, and that he physical suffered right register complaint amendment abuse and by prison guards. threats about the food. Additionally, Eighth recently Circuit However, remains whether prisoner has held that a stated a claim appellees’ alleged conduct constitutes an based on substantive due under “egregious governmental power” abuse following circumstances: meaning within the of Vinson. As the complaint Sgt. states that Livingston observed, magistrate there is a factual dis- pointed weapon lethal prisoner, at the pute Persky planted as to whether the mar- it, cocked and threatened him in- ijuana, and there are circumstances which stant death. This incident im- occurred question concerning raise Wahl’s involve- mediately prisoner after the given had framing appellant. example, ment For testimony against guard another Peterson, foreman, Mikko cook related in 1983 action. The death threat ac- was an internal concerning memorandum companied by epithets racial which incident, which was filed in the district strongly suggest prisoner would court, again in a deposition that on the have been differently treated he morning of the incident Wahl Fevurly told been black. Apparently, guard another going to have up Cale locked present who was took the threat serious- and that that wоuld be the end of Cale’s ly enough step prisoner between the complaints. Wells recalled an interview Sgt. Livingston. In case the point concerning the incident that at the noon made, had not been Sgt. Livingston re- day meal on that Wahl told Wells that he peated performance moments later. go need to be available would According to the uncontroverted words dining room at approximately p.m. 3:00 of the complaint, there was provoca- Thus, supports the evidence a claim that guard’s tion for the action other than the intentionally and maliciously framed prisoner’s attempting to exercise his due- Cale and filed disciplinary charges against process and First him in retaliation for Cale’s exercise of his аccess to the federal courts. The com- rights. amendment alleged first This con- plaint plain describes in words a wanton egregious duct constitutes an abuse of au- act cruelty which, occurred, if it thority within the meaning of Vinson. despite brutal the fact that it resulted in Our conclusion is bolstered recent physical measurable injury to the pris- holdings in other circuits. example, For in oner. day passed The when in- an Kelly, (2d Franco v. Cir.1988), F.2d 584 mate must a show court the of scars Second Circuit question addressed the torture in order to make out a complaint allegation an “whether that prison state under 1983. We hold that prisoner a intentionally officials discipli- filed false retains at least the to be free from nary charges against inmate, an in retalia- the terror of instant unexpected and prisoner’s tion for the exercise of a consti- death at the of allegedly whim his bigot- right, tutional states a cause of action for ed custodians. damages under that can [section 1983] Livingston, Burton v. 791 F.2d withstand motion for summary judg- Cir.1986). The ment.” answered this case, affirmative. In prisoner that The instant case is similar to Franco. alleged prison that a Appellant official’s disciplinary alleges that ap- retaliation for report part was pattern of a pellant’s of false complaint disci- about the food a federal plinary actions taken against him in prison retalia- official by framed him instructing tion for cooperation his with investiga- plant another inmate narcotics on him deprived right not to be disciplinary filing false Fifth and then pro- life, liberty property pos- or subject to the of Appellant was charges. of a re- because constitutional and of law —exist sibility disciplinary sanctions cess per- consequence improper actions liberty as a sulting prohibitions loss Moreover, agree governmental au- under alleged actions. formed color inmate of such au- Burton only that an under color thority, and with the prevent the scars of torture thority. show a court does need not Constitution go- under complaint out in order make Wahl Food Service Administrator inflicting night section cruel ing home at child, wayward punishment on his unusual reasons, the district foregoing For the liberty, child of arbitrarily depriving the or REVERSED, is court’s parent acting in his role as the man is when proceed- for further case is REMANDED Nor prison role as official. his ings. ‍​​​‌‌​‌​​​‌​​‌​‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌​​‌‌‌‌​‌​‌‌​‍cause Bivens give the child a federal does NELSON, Judge, situation; a cause of Circuit A. action such DAVID concurring. consequent upon uncon- damages action Bivens, arises, conduct under stitutional re- ought to be this case agree I of a there is a violation constitutional when thinking so manded, my reasons but agent acting un- federal “by command my col- from those differ somewhat Bivens, color his authority_” der leagues. 1999, 2001, 388, 389, Admin- official, Food Service As a (1971). (Emphasis supplied.)1 L.Ed.2d 619 authority to surely had no istrator Wahl acting under agent is not the federal When planted on the drugs to be illegal cause authority, his governmental color any purpose prison inmate person of a heinous, simply not conduct, however Whether all, retaliatory or otherwise. unconstitutional. prompted frame-up was alleged confronting hurdles of the several One critique of Cale’s pique at inmate therefore, is to show stemming from dis- menu, animosity Mr. or had the race, looks, person- Administrator when Mr. Cale’s like of did, he whatever, absolutely no if he planted, that what marijuana Wahl had ality or appear authority as a acting make it color of his trying to under business was way of which guilty possible of an infraction employee. inmate was One federal to show surmounting innocent. hurdle would be was inci- was not an isolated Wahl’s act plaintiff in a for the poses a problem This pattern of miscon- dent, of a pаrt sort of action, opposed Bivens as suggestive of as to be pervasive so duct doubtless could tort action that action, purely opposed to governmental state law. court under brought in a state precisely That seems to action. be private correcly decision, as Mr. Cale The Bivens Kelly, Franco v. alleged what held that pro se complaint, in his observed Cir.1988), plain- (2d where violat- sued for employees federal filing discipli- of false claimed that tiff Feder- rights. ing people’s constitutional him, the result charges against nary sweep, law has a narrower constitutional al for 30 in confinement placed he was Both course, tort law does. than state pattern false disci- of a of days, part “was is rights Mr. Cаle the constitutional of in retalia- him actions taken Eighth plinary in this case —the talking about investiga- with an cooperation subjected to tion not to be tion_” supplied.) (Emphasis the punishment, and cruel and unusual banc), Cir.1987) (en where we allegedly planted F.2d Persky, the mar- who 1. Inmate agent direction, although prisoner, not an federal not a that a state ijuana held under Wahl's course, himself, state, inconceiv- color acting but it is not under agent have been the could acting law, of a federal under color that he was purposes able agent’s authority of U.S.C. state Compare agent. qua federal brutal murder. the time he committed Tennessee, County, Nishiyama v. Dickson moving summary judgment purpose, apparent with the authorization оf case, defendant Wahl made no effort high prison charged officials by the state planting demonstrate that the of the mari- responsibility care, of the state for the occurred, juana, if it was an isolated inci- control, discipline prisoners.” Id. at part pervasive dent rather than of a more spontaneous 1032. Thus a physical attack pattern of misconduct. That the supposed by prison guard against an inmate “does frameup may part congeries have been of a not any ordinary concept fit ‘punish- ” suggested is similar acts the summa- ment,’ Judge said, Friendly notwithstand- itself; ry judgment order that order the ing punitive the guard intent of the him- district court tells us “defendant Wahl self. Id. subsequently investigated for numer- Food Service may Administrator Wahl wrongdoings ous discharged from his punitive well have had a in causing intent employment with F.C.I. Correc- [Federal marijuana planted, to be if that is what tional Milan.” Institute] happened, hypothesis but the has to be that tell, point, We cannot at this how much punish intended to the criticism of his government knew about Wahl’s behav- menu, not the violation of a federal statute. alleged ior set-up before the of Mr. Cale. The affidavits filed this case establish Maybe government ought to have fired without contradiction that as far as the long purported Wahl planting before high charge officials in running pris- marijuana. event, In any I am not concerned, on are placing of an inmate prepared say, present record, in administrative detention status while the Persky may Wahl and per- not have been roles, inmate is under investigation forming posses- their drama that has us, government drugs as sion of been described is a practice actors standard rather than as bad actors of a purely pri- prophylactic nature, that is punitive. vate sort. Plaintiff appellate Cale’s able counsel as conceded, much as during argument, oral then, Assuming must, Ias think one Eighth Amendment claim is not plaintiff may be able to show that viable, and I agree am inclined to with him. defendants and Persky acted under I my colleagues assume are government color of too. authority, one comes to the whether presumed their I may Where have a fundamental differ- governmental actions could have violated my ence with cоlleagues analysis the commandments of the Fifth or Eighth of Mr. Cale’s Fifth Amendment claim. If Amendments. simply claim is that Food Service Ad- latter, As to the it seems reasonably ministrator Wahl committed an abuse of clear, for spelled several of the reasons out governmental power “egregious” so that it by Judge Friendly Glick, in Johnson v. 481 “shocks the conscience” and therefore vio- (2d Cir.), denied, cert. 414 lated “right Mr. Cale’s to substantive due 38 L.Ed.2d 324 process,” it seems to me that may the claim one, that our like that “does not lie comfortably more within the comfortably lie within the Eighth text of the Fifth Amendment than it does Amendment.” amendment, The text of the within the text Eighth Amendment. Judge Friendly noted, “suggests action The Fifth say Amendment does not “No taken, usually court, by a in carrying out a person deрrived shall be of substantive due legislative authorization or command.” Id. process.” rather, says, It person that no Although prohibition against cruel deprived “life, shall be liberty punishment proper- unusual apply also ty,” except by manner in which an otherwise law. constitution What out, al sentence Mr. Wahl alleged is carried there to have done cannot be a here “punishment,” violation without obviously did deprive and the Mr. Cale of his punishment must have been “deliberately life or his property, question so the that the penal administered for a or disciplinary district ought addressed, court to have I

953 him deprived to have held not days as a was conduct Mr. believe, is whether law.) The due liberty without possibly could actor government putative сourt, fa- district more of the observations Mr. Cale of deprived to have shown be I, have facts than would miliar with the process of law. due "liberty” without point. helpful on this been court how the district know do not We constitutionally Mr. did If Cale have the question, because would answer remaining in “liberty in protected interest” was that its conscience merely told us it is prison general population the Not all happened. by what not “shocked” —and regu- prison me to that the hard for believe conduct, of same cringe at the consciences Milan FCI autho- in effect at the lations to colleagues may be easier course, my in placement of inmates adminis- rized the court was. the district than shock strength the of false segregation оn trative “is not one test conscience” “shocks the by the purposely manufactured evidence computer,” as by applied that can be government if actual- the government in delicately put it Friendly rather —and Judge segre- up for administrative ly set Cale Mr. me, I 1083, and as Glick, F.2d at claims, would way in the I gation threshold of the shock say that am frank to deprived of his he was indeed conclude any length of judge, like individual process that liberty without the minimal foot, is a chancellor’s individual prison context. I the one think me less than that interests ought have addressed district court to rec might difficult My be conclusion here, didn’t. Rideout, F.2d Freeman v. oncile with denied, Cir.1986), F.2d 194 (2d reh. know, that the for all I possible, It is — U.S. -, denied, (2d Cir.1987), cert. able to con district (1988), 99 L.Ed.2d Mr. clude, facts of under the filing administra of unfounded where constitutionally ‍​​​‌‌​‌​​​‌​​‌​‌​​‌​‌​‌‌​​​‌‌​​​​‌‌‌​​‌‌‌‌​‌​‌‌​‍pro have a did indeed inmate was held charges against an tive remaining in “liberty interest” tected long process as to violate due than be population, rather prison general in a subsequently adjudicated charges were segregation for administrative ing put in meaningful There be a hearing. fair Supreme States The United days. three however, difference, triggering between all, said, prison after Court has disciplinary proceedings administrative of Penn of the Commonwealth regulations ultimately prove charges that openly filing prisoner Pennsylvania may give a sylvania false, triggering to be unfounded liberty inter protected [constitutionally] “a plant by surreptitiously proceedings such pоpu general prison remaining in the est person on an inmate’s ing contraband Helms, 459 U.S. v. lation.” Hewitt Lane, F.2d 1137 his cell. Hanrahan v. 870-71, 74 L.Ed.2d 470-71, S.Ct. Cir.1984) per (7th decided curiam case—a speaking there (1983). The Court was that even argument suggests — placed admin who had been of an inmate pro poses no due of contraband planting of five period for a segregation istrative disagree. I problem. cess Whether, presented, the facts days. prison exigencies enough days I of two would realize difference require from officials Hewitt sometimes the instant situation differentiate courts (See informally, and Vasquez v. Helms, quickly know. I do not act infor- equate very slow indeed should be of Hamtramck, City if Mr. unconstitutionality. give a con But Cir.1985), mality declined where we true, there facts is of the “petty acts of account Cale’s dimension stitutional justification Compare conceivable agent. by a state harassment” removal Mr. Cale’s which McCollan, 443 manner Baker population effected general prison negli where 61 L.Ed.2d know- government For the by Wahl. Mr. three plaintiff gent detention ingly to someone into railroad confinement

by planting person evidence on false his FRASER, The STATE BANK OF directly comparable, by my lights, to rail- Plaintiff-Appellee, Cross-Appellant, roading person through into confinement kangaroo proceeding which the opportunity accused has no to be heard. America, UNITED STATES of procedures Both strike me very as the an- Defendant-Appellant, process” in tithesis of “due the true sense Cross-Appellee. of that tеrm.2 87-1666, Nos. 87-1789. telling Rather than the district court that Appeals, United States Court of ought its conscience to have been shocked Sixth Circuit. by I story, Mr. Cale’s would have asked the to determine whether defendants Argued Sept. 1988. Persky, acting Wahl and under color of Decided Nov. 1988. governmental authority, did in deprive fact 29, 1988. Rehearing Denied Dec. liberty Mr. process Cale of without due law. Murray's dered, Improve-

2. Lessee v. Hoboken Land and process without due of Law....” Id. at Co., 272, 276, (1856), ment 18 How. 15 L.Ed. 372 50. approval later, a decision pages cited with in Daniels v. A few subject, still on the same Coke Williams, 332-33, any by remarks that “if man any colour of 665-66, authority, 88 L.Ed.2d 662 tells us that what any where particu- he hath not in that law,” originally by process case, arrest, meant man, "due imprison lar or оr cause Amendment, arrested, used in the Fifth Coke, was what Lord imprisoned, him to be or this is commentary Magna Act, in his famous against hatefull, and it is most when it Charta, conveyed said was in the latter doc- by is done countenance of Justice.” Id. at 54. by "by phrase ument the law of the land." Coke’s staple Institutes Century were a of 18th 29) phrase appears chapter (Chapter That in a legal course, learning, of and it is far from Magna Charta that be translated as follows: suppose unreasonable to that the Fifth Amend- prohibition taken, ment’s deprivation liberty imprisoned, “No free man shall be or tenement, "without due liberties, of law” was or disseised of his free intended to be or enough customs, broad outlawed, to cover the or his free nor shall he “hatefull” case of the who, exiled, acting by man any way destroyed, authority or or in color of nor will him, him, possess, go upon does not upon causes nor will we send judgment another to be arrested imprisoned by or peers, wrongfully. but his or Our forebears lawful sell, difficulty well the law the land. To none have had concept will we with the that it possible deny, delay justice, right.” person none will we for a wrongfully to be de- (Emphasis supplied.) (in Latin) prived quoted liberty As liberty at after his already Coke, Inst., away by 2d been taken imprisonment, lawful begins exegesis phrase difficulty us; Coke “but need not concern the Su- preme the law of the land” as follows: Court prison- has made it clear that some ers, least, exposition "For the true sense and of these liberty retain a measure of words, E.3.cap.8, see the Statute of 37. protects where Constitution prison gates even after the words, Land, the law of the clanged are ren- shut on them.

Case Details

Case Name: Louis Cale v. J.R. Johnson, Warden, F.C.I., James Wahl, Food Service Administrator, F.C.I., Milan, and Melvin Persky, Inmate and Clerk to James Wahl

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 17, 1988

Citation: 861 F.2d 943

Docket Number: 87-1970

Court Abbreviation: 6th Cir.