Crawford-El v. Britton

GINSBURG, Circuit Judge, concurring: I agree with the clear majority of my colleagues who conclude that the direct-evidence rule of Martin v. D.C. Metropolitan Police Dep't, 812 F.2d 1425, 1431 (D.C. Cir. 1987), should be abandoned. I also concur in Judge Williams' opinion insofar as it requires that a 1983 or Bivens plaintiff who seeks damages from a government official for a constitutional tort must prove the defendant's unconstitutional motive (where that is an element of the tort) by clear and convincing evidence. As Judge Williams details, a plaintiff will feel the weight of this burden not only at trial but also in opposing a motion for summary judgment; in both contexts the plaintiff will have to present evidence that a jury could consider clear and convincing proof of the defendant's unconstitutional motive.

I cannot concur, however, in Judge Williams' attempt to place an even greater burden upon the plaintiff at the summary judgment stage. He would require the district court to grant summary judgment prior to discovery unless the plaintiff already has in hand evidence of the defendant's motive that a reasonable jury could find "clear and convincing." That seems a rather bold intrusion into the district court's management of the fact-finding process, an area in which we generally defer to the trial judge. The consequences would be twofold. First, Judge Williams' proposal would put compensation beyond the reach of even the plaintiffs with the most meritorious claims - a consequence arguably consistent with Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982), in which the Supreme Court accepted that some deserving plaintiffs would be denied compensation in order to reduce the social costs of litigation against government officials. Second, Judge Williams' approach would invite an increase in the number of constitutional torts that are committed - a consequence more difficult to square with Harlow.

I. General Principles

In relating this case to Harlow, we must consider not only the compensatory role of constitutional tort liability but also


its deterrent purpose. The rule announced in Harlow probably did not increase the frequency with which public officials knowingly violate someone's constitutional rights. An official who knows that the action he is contemplating would violate an individual's constitutional rights can hardly be confident that a court will later disagree - more precisely, that the court will conclude that the official's action was objectively reasonable under the law as clearly established at the time. Harlow is cold comfort, ex ante, to that official. This is why the Court could say in Harlow that the rule announced there would "provide no license to lawless conduct." 457 U.S. at 819.

We cannot make the same statement about the requirement that the plaintiff prove his case by clear and convincing evidence; as sure as we are that demand curves slope downward and that there will be more of a behavior when the price (or penalty) goes down, we can be confident that raising the plaintiff's burden of persuasion will embolden some additional Government officials to take actions that they know are unconstitutional. Although we cannot know the magnitude of that effect (i.e. the slope of the demand curve for tortious conduct), I agree with Judge Williams that we are justified in taking this step to contain the social cost of litigating constitutional torts that turn upon the defendant's motive.

My colleague, however, would take not only this but a second step beyond Harlow; he would not only raise the plaintiff's burden of persuasion but also require the plaintiff to obtain evidence without the ability to compel its production from those most likely to have it. No matter whether the plaintiff can demonstrate that he has a reasonable chance " or for that matter a virtual certainty " of obtaining such evidence from the defendant or even a third party, such as one of the defendant's coworkers, Judge Williams would deny him any discovery. This would further reduce the deterrent effect of constitutional tort liability, perhaps to a point below what is justified.

Judge Williams overlooks the point; Judge Silberman faces up to it but reminds us that "personal damage suits are


decidedly not the only disincentive" to unconstitutional conduct. The federal statutes that he cites, however, do not justify the balance that he or Judge Williams would strike between the interests of injured plaintiffs and the public interest in avoiding unfounded litigation against government officials. First, those statutes do not reach all the motive-based constitutional torts for which a plaintiff can seek redress under Bivens or 1983. Second, a plaintiff who seeks damages against a public official under any of the cited statutes has no greater access to discovery than does a plaintiff who sues for the same remedy under Bivens or 1983; qualified immunity shields the public official from personal damage liability regardless of the particular type of action brought against him. See Todd v. Hawk, 72 F.3d 443, 445 n.7 (5th Cir. 1995) ("Racial discrimination claims brought under 1981 are subject to the defense of qualified immunity"); Hobson v. Wilson, 737 F.2d 1, 19 (D.C. Cir. 1994) ("section 1985(3) encompasses actions against federal officers, subject, of course, to considerations of qualified immunity").

In order to obtain any other remedy or impose any sanction, the plaintiff or prosecutor respectively will have to show that some public official acted with a prohibited motive - racial, religious, or gender discrimination, retaliation for protected speech, or what have you. Although the public official will be shielded from personal liability and, perhaps, from the cost of retaining counsel, he will not be shielded from the demands upon his time, the risk of injury to his reputation, the emotional distress likely to attend an adversarial inquiry into whether his actions were basely motivated, or the possibility of unpleasant consequences apart from the litigation (such as losing his job) if the inquiry shows that his actions were improperly motivated. Effective deterrence of unconstitutional conduct depends unavoidably upon exposing public officials to some risks that might also chill them in the proper exercise of their descretion.

Therefore, that a particular rule, such as the one Judge Silberman proposes, would leave in place some deterrent effect because some types of cases might still be brought tells us little about whether the rule strikes an appropriate balance between our interest in deterring constitutional torts generally


and our interest in reducing the social costs of litigation against public officials. Judge Silberman suggests, based upon the low success-rate of Bivens and 1983 actions, that there is not much out there to deter. He does not consider, however, that the low-success rate is, in part, a result of the qualified immunity doctrine and other legal rules.

We cannot know how much additional unconstitutional mischief the rules proposed by Judges Silberman and Williams would elicit, but that seems reason enough to proceed with more caution than either of them displays. A more prudent and discriminating approach - one that may preserve the desired deterrent while still lessening the burden now placed upon defendant public officials - would be to provide more guidance than we have heretofore given to district judges faced with the task of balancing, case by case, the competing values accommodated by the institution of qualified immunity. We could then rely upon them, as we normally do, to manage the fact-finding process that my colleagues would truncate with clear but Draconian rules.

When a defendant files a motion for summary judgment and the plaintiff argues that he needs discovery in order to withstand the motion, Rule 56(f) invests the district court with discretion to (1) deny the motion for summary judgment, (2) continue the motion pending discovery, or (3) "make such other order as is just." In a case involving qualified immunity, the district court abuses this discretion if it fails duly to consider not only the competing interests of the parties " as in any civil litigation " but also the social costs associated with discovery had against a government official.

Hence, while this court has acknowledged that "in the mine-run of cases" summary judgment is generally inappropriate until all discovery has been completed, Martin, 812 F.2d at 1436, we have also recognized that "creditable pleas of official immunity remove cases from the mine-run category," id. at 1436-37. Although we now reject then-Judge Ruth Bader Ginsburg's elevation of direct over circumstantial evidence, see id. at 1435, we ought not forget her description of our task in a case such as this " to "leav[e] some space for


discovery" while "minimiz[ing] the burdens imposed upon government officials." Id. at 1437.

In Martin we required the plaintiff to make factual allegations sufficiently precise to enable the district court to "employ with particular care and sensibility [its] large authority to exercise control over discovery." Id. at 1437. We expected that district courts would protect government officials from "unnecessary involvement in [ ] litigation" by "permit[ting] particularized interrogation of the defendants for the circumscribed purpose of ascertaining whether there is any substance" to the plaintiff's specific factual allegations. Id. at 1438.

Rather than looking further back, as Chief Judge Edwards does, to the concern expressed in Hobson, 737 F.2d at 30-31, that "in some circumstances plaintiffs are able to paint only with a very broad and speculative brush at the pre-discovery stage," we should go forward along the path to which Justice Ginsburg pointed us in Martin. Consideration of the social costs associated with litigation against public officials (which, as Harlow teaches, weighs heavily against discovery) should constrain to this extent the district court's discretion to continue a summary judgment motion pending discovery: If, when the defendant moves for summary judgment, the plaintiff cannot present evidence that would support a jury in finding that the defendant acted with an unconstitutional motive, then the district court should grant the motion for summary judgment unless the plaintiff can establish, based upon such evidence as he may have without the benefit of discovery and any facts to which he can credibly attest, a reasonable likelihood that he would discover evidence sufficient to support his specific factual allegations regarding the defendant's motive.

Chief Judge Edwards too speaks of requiring a "reasonable likelihood that additional discovery will uncover evidence to buttress the claim," but that is not the same as requiring a reasonable likelihood, based upon specific evidence within the plaintiff's command, that discovery will uncover evidence sufficient to sustain a jury finding in the plaintiff's favor.


Moreover, the Chief Judge's emphasis upon some plaintiffs' ability to "paint only with a broad and speculative brush," and upon the district court's almost unfettered discretion (in the mine-run of cases, that is) to continue a summary judgment motion pending discovery, suggests a substantial difference in our expectations of the district court.

Permitting a plaintiff to pursue limited discovery only upon showing that he has a reasonable likelihood of turning up evidence that a jury could consider clear and convincing proof of the defendant's unconstitutional motive would leave more space for discovery than would Judge Williams or Judge Silberman, would still protect the public from the costs of pointless discovery against Government officials, and would not usurp the district court's authority over the course of the litigation. Moreover, I see no reason to doubt the district court's willingness or ability to strike anew in each case the balance that underlies the doctrine of qualified immunity. Indeed, a district judge, whose experience with the management of discovery is far more extensive than ours, whose familiarity with the case and with the litigants is more immediate, and whose tools for controlling the course of litigation are more subtle and precise, is eminently qualified for this task.

II. Application to this Case

I agree with my colleagues who conclude that Crawford-El adequately alleged a violation of clearly established constitutional law and that we must therefore remand this case to the district court. See Williams Op. at 23-25. But if on remand Britton moves for summary judgment prior to discovery and Crawford-El cannot substantially supplement the record now before us, then it would be an abuse of discretion for the district court to deny the motion or to continue it pending discovery.

A. The Summary Judgment Standard

In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-56 (1986), the Supreme Court explained how a district court should determine whether a plaintiff has submitted evidence sufficient to withstand a summary judgment motion when the


plaintiff must prove an element of his claim " in that libel case it was actual malice " by clear and convincing evidence:

[T]here is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence.

Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.... It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.

Our holding that the clear-and- convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor....

In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.... Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.

Thus, although the plaintiff is entitled to have all rational inferences drawn in his favor on intermediate facts - such as


hostility, in this case - those facts must add up to clear and convincing evidence of the ultimate facts that he must prove " here, that Britton (1) in order to retaliate against Crawford-El for exercising his constitutional rights (2) knowingly gave Crawford-El's legal papers to his brother-in-law.

B. Crawford-El's Complaint

Let us now look at Crawford-El's sworn declarations to see whether they are sufficient to withstand Britton's no doubt imminent motion for summary judgment. In paragraph 6 of his fourth amended complaint, Crawford-El declares that
[1] Ms. Britton persistently displayed toward prisoners a cavalier attitude " manifesting a view that prisoners were beneath her, disentitled to dignity, and unworthy of civil treatment. [2] Ms. Britton was hostile to plaintiff, in particular, because she knew plaintiff ... had been in charge of the law library [and] had helped many prisoners prepare ... grievance forms or appeals of disciplinary actions, and had a reputation for asserting legal rights and knowing the administrative procedures for doing so. [3] Ms. Britton deemed plaintiff "too big for his britches."

The first sentence establishes merely that Britton did not like prisoners generally; it says nothing specific about her alleged unconstitutional motive. The second sentence states a fact about Britton's state of mind, to which Crawford-El may not testify without laying a foundation. See Fed.R.Civ.Pro. 56(e) ("affidavits shall be made on personal knowledge"); and Fed.R.Evid. 602 (accord) and 701 ("testimony in the form of opinions or inferences is limited to those opinions or inferences which are ... rationally based on the perception of the witness"). The third sentence, provided without context, does not tell us why Britton said that Crawford-El was "too big for his britches" or even whether the statement manifests hostility.

In paragraph 9 of the complaint, Crawford-El declares that
Ms. Britton was among those who were hostile to the Inmate Grievance Committee and to plaintiff's efforts to seek redress of prisoner grievances. On one occasion


when plaintiff was typing [Housing and Adjustment] Board papers in the Q Block office, Ms. Britton came in and said to Cpt. (then Lt.) Brummell in a caustic manner that she (Cpt. Brummell) should watch out for plaintiff and make sure he wasn't using the typewriter to write up [grievance forms] or lawsuits. As Ms. Britton said this she stood over plaintiff to see what he was typing.

Britton's concern, even if caustically expressed, that Crawford-El not conduct his jailhouse law practice when he was supposed to be performing administrative work is not evidence of hostility to Crawford-El's efforts to seek redress of prisoner grievances.

In paragraph 12 of the complaint, Crawford-El declares that
The day after the [first Washington Post] article was published [April 21, 1986], defendant Britton ordered plaintiff into her office. Corporal Barrett, then Officer in Charge of Dorm K2, escorted plaintiff there. Ms. Britton was visibly upset. After ignoring plaintiff for a considerable period, she asked him if he had arranged the visit by the reporter. When plaintiff said that he had, she asked him how he had done it. Plaintiff showed her the visitor application naming the reporters invited and their address and pointed out that Ms. Britton had approved the application. [7] Ms. Britton became enraged and accused plaintiff of tricking her. Plaintiff denied tricking her. [9] Ms. Britton said plaintiff had embarrassed her before her coworkers by having the reporter come. Ms. Britton made a telephone call trying to get plaintiff placed in restrictive confinement in Q Block. [11] When this effort failed she said that so long as plaintiff was incarcerated she was going to do everything she had to do to make it as hard for him as possible. A few days later Ms. Britton had plaintiff transferred to the Department's Central Facility.


Crawford-El's statement (in the 7th sentence) that Britton "became enraged" when she thought she had been duped by Crawford-El does not help his case. On the contrary, that she was angered at being tricked " Crawford-El has no constitutional right to trick his keeper " provides a qualifying context for Crawford-El's most significant declarations: that Britton said that she was embarrassed by the article and that she would make life hard for Crawford-El.

Judge Williams brushes the allegations aside as "self-serving." Self-serving opinions, inferences, and conclusions without a basis in perceptible fact may not be sufficient to withstand a summary judgment motion even under the mere preponderance standard; but neither is summary judgment "a procedure for resolving a swearing contest" over concrete facts, see Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992) (Posner, J.) ( 1983 action against prison officials), should such a contest arise " Britton has not contradicted Crawford-El's declaration with her own sworn statement. Recall Anderson, in which the Supreme Court instructed, again on a summary judgment motion in a case where the plaintiff must prove an element by clear and convincing evidence, that "[c]redibility determinations ... are jury functions, not those of a judge," and that "[t]he evidence of the non-movant is to be believed."

Suppose Britton (or Corporal Barrett) were to corroborate the alleged threat, however; without more it would not clearly and convincingly indicate that Britton's decision to deliver Crawford-El's property to his brother-in-law was unconstitutionally motivated. Britton allegedly made the threat in a moment of anger in April 1986; she delivered Crawford-El's property to his brother-in-law in September 1989, at the same time (according to Crawford-El's own declaration) that she was calling the families of other prisoners, who, like Crawford-El, were being sent to the federal prison in Petersburg, Virginia and threatening to discard the prisoner's property if a family member did not come to collect it.


In paragraph 15 of the complaint, Crawford-El declares that
[During a transfer to the Spokane County Jail in Washington State] Correctional Officer Ballard, with Ms. Britton's knowledge, made a videotape of [ ] prisoners [including Crawford-El] while they were handcuffed, leg-shackled, and chained about their waists. Plaintiff and several others protested to Ms. Britton that the videotaping violated thir privacy rights. Plaintiff said to her that the videotaping could not be done without the prisoners' written authorization. Ms. Britton responded, "You're a prisoner, you don't have any rights."
What does this show? That Britton was generally insensitive to the constitutional rights of prisoners? Maybe. More likely it shows simply that she did not believe that a prisoner has a right not to be videotaped. In either event, it is not very probative on the question whether (nine months later) she retaliated against Crawford-El for exercising his first amendment rights.

In paragraph 17 of his complaint, Crawford-El alleges that shortly after publication of a second Washington Post article (December 1988) in which he was quoted on the topic of jailhouse lawyers, Britton told one Captain Manning of the Spokane County Jail (to which Crawford-El had been transferred) that Crawford-El was a "legal troublemaker." As Judge Williams observes, Britton's describing Crawford-El as a "legal troublemaker" is scant evidence of hostility. Indeed, viewed as an expression of hostility it is too mild to support the inference that she bore a grudge against Crawford-El nine months later when she gave his legal papers to his brother-in-law.

Finally, Crawford-El alleges that on August 18, 1989, when he and other prisoners told Britton that property left in her possession included important legal material, she "smirked and spoke in a cavalier manner," but "informed [Crawford-El] that she understood his need both for his personal property and his legal material and that she would personally


see to it that [he] would get them." Crawford-El alleges also that upon arriving at the federal prison in Petersburg, Virginia several other D.C. prisoners informed him that Britton had asked their families to pick up their property or she would throw it away. Crawford-El offers no evidence indicating that Britton bore an unconstitutional animus toward any of these other prisoners; on the contrary, that she apparently treated the property of several prisoners in the same manner jibes with her sworn declaration that she was motivated by what she understood to be the policy of the Federal Bureau of Prisons.

In sum, even if Crawford-El were by discovery to get corroboration of every sworn declaration in his fourth amended complaint, he would not have evidence that would clearly and convincingly indicate to a reasonable jury what he must prove. At best, his evidence would establish that in a moment of anger in April 1986, Britton threatened to retaliate against him for embarrassing her by making statements to a Washington Post reporter, and that as recently as December 1988 she resented his jailhouse lawyering. Crawford-El points to no evidence that Britton did anything to make good on the 1986 threat before she delivered his legal papers to his brother-in-law in September 1989, nor to anything suggesting that he could discover evidence of such rabid hostility toward him that it would constitute clear-and-convincing circumstantial evidence that Britton was retaliating against Crawford-El by treating him as she treated other similarly situated prisoners.

Under the clear-and-convincing evidence standard, no reasonable jury could find on these facts that Britton acted with an unconstitutional motive in 1989 and Crawford-El has not offered a reason to believe that more evidence can be discovered. If on remand he has nothing more significant to offer, then the plaintiff should be denied discovery and the defendant's motion for summary judgment should be granted.


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