Plaintiffs 1 аppeal as of right from the trial court’s orders granting defendant Kenneth L. McGinnis’ motion for a directed verdict and denying plaintiffs’ motions to depose defense counsel and an associate and to call them as witnesses at trial. We affirm.
This case arises out of the Department of Corrections’ (doc) interpretаtion of MCL 800.33; MSA 28.1403, which governs prisoners’ entitlement to sentence credits, as it relates to Proposal B offenders, MCL 791.233b; MSA 28.2303(3). 2 Plaintiffs, who had *640 been convicted of Proposal B offenses before December 30, 1982, were prisoners under the jurisdiction of the DOC. Defendant McGinnis was the director of the DOC, defendant Richard McKeon was McGinnis’ administrative assistant, and defendant Marjorie Van Ochten was the administrator of the doc’s office of policy and hearing.
On November 15, 1993, this Court ruled in Lowe v Dep’t of Corrections (After Remand), an opinion of the Court of Appeals originally designated “for publication” but later withdrawn from publication, issued November 15, 1993 (Docket No. 138095) (Lowe I), 3 that the doc’s interpretation was incorrect and that
Proposal B offenders incarcerated for crimes committed priоr to January 1, 1983, are eligible for traditional good time and special good time credits on their maximum sentence for the period up to December 30, 1982; and, they are eligible for regular and special disciplinary credits on their maximum and minimum terms beginning January 1, 1983. Proposal B offenders are not eligible for any regular or spеcial good time credits on their minimum sentences; nor are they eligible for any regular or special good time credits on their maximum terms after December 30, 1982.
The Attorney General, acting on behalf of the doc, subsequently moved for rehearing of this Court’s decision in Lowe I, arguing that this Court’s interpretation *641 of MCL 800.33(5); MSA 28.1403(5) violated the constitutional prohibition against ex post facto laws. Because of the pending motion for rehearing and the doc’s inability to determine whether the motion stayed the effect of Lowe 7, the DOC continued to calculate sentence credits as it had done in the past. Under that interpretation, fourteen prisoners (including the four plaintiffs) had earned sufficient credits to be released, whereas under this Court’s interpretation in Lowe 7, those prisoners did not have sufficient credits to be released. As a result, the DOC released the fourteen prisoners. Plaintiffs were released between November 1993 and January 1994.
In late January 1994, McGinnis determined that he was obligated to enforce Lowe 7, despite the рending motion for rehearing, and, therefore, the released prisoners should be taken back into custody. He so advised the Attorney General’s office, which filed ex parte motions in each of the sentencing courts to rescind the discharges and for arrest warrants so that the prisoners could be brought before the court to show cause why they should not be returned to prison to serve the remainder of their sentences. Warrants were obtained on February 7, 1994, and plaintiffs were arrested on February 9 and 10, 1994. The sentencing court that authorized the warrants for plaintiffs Reid and Miller declined to hold a show cause hearing, but another sentencing court, which had authorized the warrant for plaintiff Grant, scheduled a hearing for February 18, 1994.
In the meantime, on February 3, 1994, this Court issued an order granting the motion for rehearing of Lowe I. The order stated that “a revised opinion will be issued in due course if the Court determines that *642 such an opinion is appropriate,” but was otherwise silent regarding the effect of the decision in Lowe I pending release of a revised opinion, if any. On February 17, 1994, however, this Court issued another order staying the effect of its decision in Lowe I. Once notified of the order staying the effect of Lowe I, the DOC released the prisoners who had been arrested. Plaintiffs were all released on February 18, 1994. 4
Plaintiffs later filed this action on May 12, 1995. Plaintiffs alleged claims of abuse of process, false arrest, false imprisonment, denial of due process under the state and federal constitutions, violation of the protection against double jeopardy under the state and federal constitutions, intentional infliction of emotional distress, intentional interference with economic relations, and liability for damages stemming from plaintiffs’ temporary reincarcerations under 42 USC 1983. 5 6 The parties later stipulated the dismissal of the claims of intentional infliction of emotional distress and intentional interference with economic relations. The trial court granted summary disposition in favor of defendants with regard to the clаims of abuse of process, false arrest, and false imprisonment. With regard to defendants Van Ochten *643 and McKeon, all claims against those two defendants were dismissed on the basis of governmental immunity in that plaintiffs’ complaint failed to allege that their actions were grossly negligent. MCL 691.1407(2)(c); MSA 3.996(107)(2)(c). Although the trial court specificаlly allowed plaintiffs to amend the complaint in order to plead with specificity the actions comprising gross negligence so as to avoid governmental immunity, plaintiffs did not amend then-complaint in this manner. Thus, all claims against defendants Van Ochten and McKeon were dismissed before trial and they are not parties on аppeal.
Before trial, plaintiffs stipulated the dismissal of the constitutional tort claims against defendant McGinnis. The only remaining claim against McGinnis was that alleged under 42 USC 1983 in McGinnis’ individual capacity. 6 At the close of the proofs, McGinnis moved for a directed verdict on the basis of qualified immunity, and the trial court granted the motion, finding thаt he was entitled to qualified immunity.
The trial court’s ruling with respect to a motion for a directed verdict is reviewed de novo.
Meagher v Wayne State Univ,
In an action brought under 42 USC 1983, a government official performing discretionary functions is entitled to qualified or gоod-faith immunity “ ‘insofar as [the official’s] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ”
Guider v Smith,
Thus the particular conduct of the official must fall clearly within the area protected by the constitutional right, such that a reasonable official would have known that his or her conduct violated the constitutional right. . . . This “objective reasonableness” standard focuses on whether *645 defendants reasonably could have thought that their actions were consistent with the rights that plaintiff claims have been violated. [Walton, supra at 1336.]
“[T]o be clearly established, a question must be decided either by the highest state court in the state where the case arose, by a United States Court of Appeals, or by the Supreme Court.” Robinson v Bibb, 840 F2d 349, 351 (CA 6, 1988). “In an extraordinary case, it may be possible for the decisions of other courts to clearly establish a principle of law,” but such decisions “must both point unmistakably to the unconstitutionality of the conduct complained of and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the mind of a reasonable officer that his conduct, if challenged on constitutional grounds, would be found wanting.” Ohio Civil Service Employees Ass’n v Seiter, 858 F2d 1171, 1177 (CA 6, 1988). Immunity is not available if the official knew or should have known that the actions would violate the plaintiff’s constitutional rights or if the official acted with the malicious intention to deprive the plaintiff of his constitutional rights or otherwise injure the plaintiff. Procunier, supra at 562.
Liability under 42 USC 1983 is predicated on “the deprivation of any rights, privileges or immunities secured by the Constitution and laws” of the United States. The applicable law cited in plaintiffs’ amended complaint was the right to due process under US Const, Am XIV and the prohibition аgainst double jeopardy under US Const, Am V. Although not specifically alleged in their complaints, plaintiffs also relied heavily on the prohibition against ex post facto laws, US Const, art I, §§ 9 and 10. All claims are derived from McGinnis’ decision to implement Lowe I.
*646 To the extent that plaintiffs base their claim on McGinnis’ decision itself, i.e., that he should have known that he was not obligated to implement the holding in Lowe I and that by doing so he violated plaintiffs’ constitutional rights, the trial court properly concluded that he was immune from liability. There was no clearly established reported case law defining the time that a published Court of Appeals decision became effective between the parties or holding that implementing a decision that has not become effective could constitute a violation of any constitutional rights. McGinnis, not being a lawyer, did not know if Lowe I was effective for enforcement purposes upon its release and was unable to obtain a satisfactory answer from thе lawyers who advised him. They gave him two courses of action to take, indicating that either would be appropriate, and he chose one. The trial court properly considered the fact that McGinnis sought out and relied on the advice of counsel before acting, Guider, supra at 571, n 10, and found that he acted in good faith in doing so. There being no evidence to show that McGinnis’ decision resulted from anything other than the legal advice he was given, we find that the trial court did not err in ruling that he acted in good faith, there being no factual dispute regarding this matter.
To the extent that plaintiffs claim that the acts that followed from McGinnis’ decision, i.e., their return to prison without a court hearing, violated their constitutional rights, the trial court’s ruling was also not erroneous. There was clearly established law that a statute “enacted after the date of a prisoner’s sentence that attempts to reduce the amount of credit given for good behavior — and that, in effect, increases
*647
the prisoner’s sentence — violates the constitutional prohibition against ex post facto laws.
Lowe v Dep’t of Corrections (On Rehearing),
There was clearly established law that the Due Process Clause “require [s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the naturе of the case.”
Mullane v Central Hanover Bank & Trust Co,
Plaintiffs also contend that the triаl court abused its discretion in denying their motion to depose the assistant attorneys general who advised McGinnis and in precluding plaintiffs from calling them as witnesses at trial. This issue has not been preserved for appeal because plaintiffs have not cited any authority in support of their position,
Price v Long Realty, Inc,
Affirmed.
Notes
This action was brought by Willie Thomas, Jr., Larry Reid, Edward A. Grant, and Phillip Miller. During the pendency of this appeal, Phillip Miller died, and Emma Perryman, as personal representative of Miller’s estate, was substituted as a party plaintiff. For convenience, the term “plaintiffs” as used in this opinion will generally refer to the original plaintiffs, except where the context clearly suggests that the reference is to the present plaintiffs.
Before December 30,1982, Proposal B offenders could earn good-time credits, which accrued at a rate of five to fifteen days a month, toward their maximum terms but not toward their minimum terms. After December 30, 1982, Proposal B offenders could not earn good-time credits at all. Instead, they could earn disciplinary credits, which accrued at a rate of five days a month, toward their minimum and maximum sentences. On April 1, 1987, good-time credits were eliminated and all new offenders
*640
after that date could earn disciplinary credits only. The doc interpreted the statutes as allowing Proposal B offenders sentenced before January 1, 1983, to earn disciplinary credits toward their minimum sentences as of January 1, 1983, and good-time credits towаrd their maximum sentences dating back to the time of sentencing. See
Lowe v Dep’t of Corrections (On Rehearing),
Lowe I was originally scheduled for publication but was withdrawn sometime after this Court granted rehearing on February 3, 1994.
On July 5, 1994, this Court issued its decision on rehearing in Lowe II, concluding that Lowe I was incorrect and that the doc’s interpretation of the law “conforms to the legislative scheme in a way that is consistent with the intent behind MCL 800.33(5); MSA 28.1403(5), as well as the constitutional prohibition against ex post facto laws.” Lowe II, supra at 135-136.
On October 11, 1995, an amended order for consolidation was filed by the Court of Claims, consolidating this case with
Reid v Dep’t of Corrections,
We acknowledge that neither a state nor its officials acting in their official capacities are “persons” under § 1983, and thus cannot be sued under § 1983.
Will v Michigan Dep’t of State Police,