Crawford-El v. Britton

Edwards Opinion Continued

Despite the complete lack of judicial precedent or evidence that an alternative judicial remedy is either appropriate or necessary, the judges who view this case differently have reached out and attempted to devise new rules of law that would have devastating consequences in many civil rights lawsuits. Thus, at precisely the moment that we have finally dispensed with our absurd and anomalous direct-evidence rule, some members of the court would once again concoct an arbitrary and unfair evidentiary standard that diverges from the settled law of every other court in the land.

D. Application to This Case

Although it is far from clear whether the plaintiff in this case can prevail on the merits of his claims, his complaint is sufficient to survive motions to dismiss or for summary


judgment. Prison inmate Leonard Rollon Crawford-El alleges that prison official Patricia Britton unconstitutionally retaliated against him for exercising his First Amendment rights by deliberately retaining and then misdelivering his personal items during a series of prison transfers. Far from simply appending a claim of unconstitutional motivation to an otherwise questionable claim, however, Crawford-El's complaint, as recounted by the District Court, includes several specific factual allegations:

" Crawford-El alleges that Britton treated him worse than other prisoners because she knew that when he had been in charge of the law library at the Central Facility, he had helped other prisoners prepare their Administrative Remedy Procedure grievance forms or their appeals of disciplinary decisions. Crawford-El had "a reputation for asserting legal rights and knowing the administrative procedures for doing so," and that made Britton hostile towards him. (Fourth Amended Complaint, at 6.)

" On April 20, 1986, The Washington Post published a front-page article about jail overcrowding based on interviews with Crawford-El. The next day, Britton chastised Crawford-El for tricking her and for embarrassing her before her co-workers. She threatened to make life hard for him in jail any way she could. (Fourth Amended Complaint, at 12.)

" Britton stated on another occasion that prisoners like Crawford-El "don't have any rights." (Fourth Amended Complaint, at 15.)

" After the publication of a second Washington Post article, which reported inmates' suspicions that "they were handpicked for transfer [from the District of Columbia to the State of Washington] because they were "jailhouse lawyers' " troublemaking "writ-writers' who tied up the courts with occasionally successful lawsuits against the prison system" and quoted Crawford-El to that effect, Britton told another prison official that


Crawford-El was a "legal troublemaker." (Fourth Amended Complaint, at WW 16-17.) Crawford-El v. Britton, 844 F. Supp. 795, 802-03 (D.D.C. 1994).

Based on these and other allegations, the trial judge concluded that a jury "might reasonably infer ... that Britton diverted and withheld Crawford-El's property out of an unconstitutional desire to retaliate against a "legal troublemaker.' " Id. at 803. Thus, an experienced member of our District Court found that, under the Federal Rules of Civil Procedure, there is a legitimate case to go to the jury. Yet, under the evidentiary standard proposed by several of my colleagues, Crawford-El's allegations would not be sufficient even to proceed to discovery. Nothing in the Supreme Court's qualified immunity jurisprudence justifies such a result; indeed, it would appear that Crawford-El's complaint would survive a motion for summary judgment under the rules adopted by every other court of appeals in the nation.


Given the lack of any Supreme Court decision indicating that a "clear and convincing" standard can or should be invented by judges and overlaid onto the Federal Rules of Civil Procedure, the result proposed by the judges who view this case differently suggests an extraordinary use of judicial authority. One would have thought that the outcome they propose would be anathema to judges who advocate a philosophy of judicial restraint, particularly when the more prudent course is to insist on a firm application of the Federal Rules until such a time as the Supreme Court commands us to do otherwise, or an amendment is made either to the Federal Rules or to section 1983 itself. "[J]ust as masons building a cathedral should not supplant the architect, even though both are creating a work of art, a judge should not supplant the politician or administrator though all are seeking sound governance." Stephen F. Williams, The Roots of Deference, 100 YALE L.J. 1103, 1111 (1991); see also, e.g., Laurence H. Silberman, Chevron " The Intersection of Law & Policy, 58


GEO. WASH. L. REV. 821, 821-22 (1990) ("decr[ying] the extraordinary expansion of judicial power in the latter half of this century," and observing that the one concept that most distinguishes those who advocate "judicial restraint" is "avoidance of judicial policy making").

The simple truth here is that Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and its progeny (not to mention the Civil Rights Act of 1871), remain the law of the land and control the actions of this court. And, as Justice Kennedy recently pointed out, courts must be cautious about "devising limitations to a remedial statute, enacted by Congress, which "on its face does not provide for any immunities.' " Wyatt, 504 U.S. at 171 (Kennedy, J., concurring) (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)). I therefore find it incredible that some members of this court seek to create new rules that would effectively render impossible all Bivens-type civil rights actions that turn on the intent of government officials. Until the Supreme Court finally resolves the question once and for all, it appears that this circuit might sit alone among all the federal courts of appeal in its approach to this issue.

Citizens of the United States who legitimately use the legal system to render representatives of their government accountable for unconstitutional action should not find the courthouse door in our nation's capital slammed shut. I hope that will not be the consequence of today's decision.

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