Defeating efforts to delay s. 1983 cases.

Civil fights plaintiffs can get dismissals and sanctions against defendants who improperly delay proceedings. They should try more often.

Plaintiffs who sue under 42 U.S.C. [sections] 1983 for violation of their federal civil rights bear extraordinary burdens.(1) There is one small ray of hope. The federal courts --including the Supreme Court--have ruled against defendants who improperly delay proceedings of legally well-founded [sections] 1983 claims. Recent decisions by the Supreme Court and federal appeals courts offer civil rights plaintiffs new tools for dealing with defendants' appeals from district court decisions refusing early termination of their lawsuits.

Some interlocutory appeals can be dismissed before briefing. In some of those cases, substantial frivolous appeal sanctions can be collected. This article is a short primer on how to set up these dismissals and sanctions.

The Supreme Court has held that government employees and officials who are sued in their personal capacities for damages for violating a person's civil rights may terminate the lawsuit early on grounds of absolute or qualified immunity. The Court has said, "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery."(2)

A defendant may raise the qualified (or absolute) immunity defense at almost any time during the lawsuit and may do so repeatedly. Immunity may be asserted as an affirmative defense with the answer, in a motion to dismiss for failure to state a claim on which relief can be granted, in summary judgment motions, and in motions for a directed verdict during or after trial.

Unfortunately, asserting immunity provides civil rights defendants with extraordinary opportunities for trial delay, even when the defense fails. "The denial of a substantial claim of absolute [or qualified] immunity" is an order subject to interlocutory appeal before final judgment.(3) A nonfrivolous appeal will stay virtually all trial court proceedings.(4) Delay usually benefits the defendant, not the plaintiff.

Issues of qualified immunity are often difficult because they involve subtle legal and factual components. To oversimplify a bit, a government employee or official enjoys qualified immunity if his or her conduct was objectively "reasonable" as measured by reference to clearly established law.(5)

To defeat a claim of qualified immunity, a civil rights plaintiff must show that the challenged conduct violated a federal right that was "clearly" established at the time of the conduct and that, under the circumstances, defendants knew or should have known that their acts would violate the plaintiff's right.(6) The first element of this analysis is almost a purely legal question. The second is a highly factual one.(7)

Ray of hope

Fortunately, even the present Supreme Court has figured out that not all prejudgment denials of the qualified immunity defense should be the subject of an appeal. In 1995, the Court held that the federal appellate courts have jurisdiction over these appeals only when the immunity determination turns on the legal issue of whether the plaintiff's federal right was clearly established.(8) The appeals courts have no jurisdiction to determine whether genuine issues of material fact exist, whether wrongful conduct took place, and, usually, whether that conduct violated a federal right (assuming the right was clearly established).(9) Most likely, the Supreme Court was motivated by a desire to protect the already overburdened federal appellate courts from a flood of fact-intensive appeals.

The courts of appeals have responded by dismissing interlocutory appeals from prejudgment orders denying claims of qualified immunity where there are material issues of fact and no questions of law as to the existence of a clearly established fight.(10) In 1998, the Sixth Circuit held:

   In the future, a defendant who wishes to file such an appeal after being
   denied qualified immunity should be prepared to concede the best view of
   the facts to the plaintiff and discuss only the legal issues raised by the
   case. Such a defendant will have a solid jurisdictional position if the
   defendant claims the plaintiff cannot show a violation of clearly
   established law even assuming everything alleged is true. Once a
   defendant's argument drifts from the purely legal into the factual realm
   and begins contesting what really happened, our jurisdiction ends and the
   case should proceed to trial.(11)

In 1995, the Fifth Circuit took an encouraging step. It held: "Because there are disputed issues of material fact concerning the qualified immunity defense, we lack jurisdiction to consider the interlocutory appeal. Accordingly, we dismiss. In addition, because counsel for appellant has multiplied these proceedings unreasonably and vexatiously, we impose sanctions against counsel pursuant to 28 U.S.C. [sections] 1927."(12) The court awarded as sanctions the full amount of fees and costs claimed for work on the appeal by plaintiff's counsel.(13)

Recently, attorney Elden Rosenthal of Portland, Oregon, and I got a similar result in the Ninth Circuit. A panel granted our early motion to dismiss as frivolous two defendant police officers' interlocutory appeals.(14) The court awarded sanctions, measured by double costs, jointly and severally against both officers.

One of the officers had dismissed his appeal in exchange for the plaintiffs' agreement to withdraw their request for sanctions against him. However, that did not prevent the court from imposing the modest double costs sanction against him. Additional sanctions were imposed on the officer who did not stipulate to dismiss his appeal. The court awarded reasonable attorney fees against him. These fees were substantial.(15)

The appeal caused no delay in the trial schedule. It was dismissed within a few months of being filed. No briefs were prepared on the merits. Our work involved a motion to certify the appeal as frivolous in the district court, the motion to dismiss the appeal in the Ninth Circuit (which was promptly made after the appeal was docketed), reply papers, and the fee application and reply. Full payment, including statutory interest, was made promptly.

The case, Boots & Proctor v. Bond & Smith, involved a malicious prosecution claim. The plaintiffs had been imprisoned for more than eight years until they were released as innocent. The case settled just before trial, four months after the sanctions award. The plaintiffs' interim success in securing appellate sanctions may have played some part in the favorable resolution of the case.

Seeking dismissal and sanctions

Every time a civil rights defendant files an interlocutory appeal, you, as the plaintiff's counsel, must consider filing a motion to dismiss and for sanctions. Well before the motion or even the appeal is filed, consider this option and prepare for it. Think positively but be realistic. The road map laid out here will not work in most cases. It will work in some. Be ready and on the lookout for those cases.

Setting up the motion to dismiss, and especially the motion for sanctions, involves several steps similar to setting up Rule 11 sanctions. First, you must adequately plead facts that negate the immunity defense. Second, you must collect and marshal the relevant evidence that rebuts the defense. Third, you must make sure that the plaintiff's evidence creates material factual disputes as to whether the wrongful conduct occurred and whether that conduct violates a clearly established federal right. Fourth, you must prepare to demonstrate that the federal right in question was clearly established at the time of the wrongful conduct. This is often the most difficult step, and you will have to be thorough and creative.

The touchstone of the clearly established federal right requirement is fair warning --namely, whether the defendant could reasonably have anticipated that the conduct might give rise to liability.(16) Reference to Supreme Court decisions and to those from the federal circuit courts is appropriate in determining whether a right was clearly established.(17)

The act at issue in the case being litigated need not previously have been held unlawful.(18) The plaintiff does not have to identify a case directly on point.(19) Even "closely analogous case law is not required to show" that the right is clearly established.(20) The plaintiff need only show that the contours of the right were sufficiently clear that a reasonable person would understand that his or her conduct might violate that right.(21)

It follows that you should research all pertinent statutory law and appellate jurisprudence, civil and criminal, to determine the earliest date on which the contours of the federal right became sufficiently clear to provide reasonable notice. If initially you find only recent decisions articulating the federal right that postdate the wrongful act, read all cases cited by those decisions on the relevant point and those cited in earlier decisions.(22)

The date of the first appellate decision recognizing the federal right or its contours is not the most important date in the "clearly established right" exercise. Review the Supreme Court and appellate courts decisions, as well as the district court decisions from which the appeals were taken, to determine the date of the wrongful acts being reviewed. If an appellate court held that the right or its contours were clearly established, especially in a [sections] 1983 context, it must mean they were clearly established at the time the act occurred--well before the date of the appellate decision.(23) When you write your brief, reverse the usual approach. Start with the oldest and strongest authorities, not the newest and strongest.

Let us skip ahead and assume that you have defeated the defendant's summary judgment motion, with the district court holding that there are material issues of fact as to whether the defendant violated the plaintiff's federal rights. Now the sanctions set-up work begins.

As soon as you have the order denying summary judgment in hand, write a careful letter to defendant's counsel. Inform counsel that the order is not appealable because the federal rights involved or their contours were clearly established at the time of the wrongful conduct. Citing the Supreme Court decisions in Johnson v. Jones and Behrens v. Pelletier,(24) explain that no interlocutory appeal will lie from the district court's decision that there are material issues of fact. Finally, point out the Sixth Circuit's decision that the defendant must concede the plaintiff's version of the facts(25) and the Fifth Circuit's awarding frivolous appeal sanctions.(26)

If the defendant files a notice of appeal, send another warning letter announcing that you will file a motion in the district court to certify the appeal as frivolous and a motion in the court of appeals to dismiss the appeal and for sanctions. Ask the defendant's counsel to dismiss the appeal to avoid unnecessary work for which the plaintiff will seek compensation.

In response to the defendant's appellate docketing statement, inform the court that the defendant's appeal is frivolous and that the plaintiff intends to file a motion to dismiss the appeal and for sanctions. (Check the appeals court rules concerning the timing of this motion.)

Promptly file a motion in the district court to certify the appeal as frivolous. This avoids having the trial court proceedings automatically stayed. If the court certifies the appeal as frivolous, it retains jurisdiction, and the case will proceed toward trial while the appeal is pending.(27)

After the certification of a frivolous appeal, write defendant's counsel another warning letter. Then, as promptly as possible, file a motion in the appeals court to dismiss the appeal and for sanctions. (If necessary, file the motion while you await the court's decision on your motion to certify the appeal as frivolous. But that is risky. If the district court finds that the appeal is not frivolous, your motion to the appellate court will be weakened and the district court's order may undermine your arguments to the appeals court.)

You may file or continue to pursue a motion to dismiss and for sanctions even if the district court does not certify the appeal as frivolous. The plaintiffs likelihood of securing sanctions, of course, is greatly limited in these circumstances. However, you still may get the appeal dismissed. In these circumstances, the appeals court's motions panel may refer the motion to the merits panel. After full briefing, that panel may dismiss the appeal, possibly without oral argument.

Any motion to dismiss and for sanctions should lay out the relevant procedural history, including the warnings sent to the defendant's counsel. Attach the pertinent correspondence to an affidavit. Recite the facts with the plaintiff's slant, but do so reasonably. Set out the bases for showing that the federal rights were clearly established at the time of the wrongful acts. Request dismissal of the appeal and, if appropriate, frivolous appeal sanctions, citing appropriate statutes and rules and the Fifth Circuit sanctions decision. Reply to the defendant's opposition papers aggressively.

You should probably request that the amount of any sanctions be determined after the appeal is dismissed. (The circuit's local rules and practice should guide you on this.)

When you submit that claim to the court, justify it the way you would justify any appellate fees application, with time records, declarations authenticating your time and expense records and substantiating your claimed billing rates, and other appropriate evidence.

If an interlocutory appeal is frivolous and you have set the stage properly, it is likely that the appeal will be dismissed early. It is also possible that defendants or their counsel will be sanctioned.

Case law suggests that even judges who are conservative about substantive civil rights law are becoming increasingly fed up with unjustified delays in litigation. In fact, I have heard several federal judges complain that too few civil rights plaintiffs make the effort to certify interlocutory appeals as frivolous or to seek early dismissal of these appeals and sanctions for their filing. Lawyers for civil rights plaintiffs should consider doing this more frequently.

Notes

(1.) Section 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

(2.) See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), limited by Johnson v. Jones, 515 U.S. 304 (1995).

(3.) Id. at 525. Whether these appeals are available in state court 1983 lawsuits is a matter of state appellate procedure. See Johnson v. Fankell, 520 U.S. 911 (1997).

(4.) See, e.g., Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992).

(5.) See, e.g., Davis v. Scherer, 468 U.S. 183, 190-91 (1984).

(6.) See, e.g., Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993).

(7.) A government employee or official is absolutely immune from suit for damages, for example, if he or she acted as a judicial officer, a prosecutor, or a legislator. See, e.g., Supreme Court v. Consumers Union, 446 U.S. 719 (1980); Pierson v. Ray, 386 U.S. 547 (1967). The defendant who pleads absolute immunity bears the burden of demonstrating that he or she enjoys that immunity rather than the more limited "qualified" immunity. See Cleavinger v. Saxner, 474 U.S. 193 (1985). The absolute immunity question hinges on whether the wrongful act was performed within an immune status. See e.g., Buckley v. Fitzsimmons, 509 U.S. 259 (1993).

(8.) Johnson v. Jones, 515 U.S. 304, 317 (1995); see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

(9.) If a district court denies a claim of absolute immunity because it finds the defendant was not acting in an immune capacity or there are triable issues of fact on that issue, it follows that defendant's interlocutory appeal should be dismissed.

(10.) See, e.g., Harding v. Vilmer, 72 F.3d 91 (8th Cir. 1995) (per curiam); Rambo v. Daley, 68 F.3d 203 (7th Cir. 1995); Sevier v. City of Lawrence, 60 F.3d 695 (10th Cir. 1995).

(11.) Berryman v. Rieger, 150 F.3d 561, 564-65 (6th Cir. 1998).

(12.) Baulch v. Johns, 70 F.3d 813, 814 (5th Cir. 1995).

(13.) Id. at 818.

(14.) Boots & Proctor v. Bond & Smith, Nos. 97-35601, 97-35641 (9th Cir. unpublished order dated Sept. 26, 1997) (The case arose in the District of Oregon (DC Civ. 95-06408-HO).).

(15.) Unpublished order dated Jan. 14, 1998.

(16.) See, e.g., United States v. Lanier, 520 U.S. 259 (1997) (applying [sections] 1983 qualified immunity analysis to analogous civil rights criminal statute).

(17.) See, e.g., Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987).

(18.) Anderson v. Creighton, 483 U.S. 635 (1987).

(19.) Allen v. City & County of Honolulu, 39 F.3d 936, 939 (9th Cir. 1994).

(20.) Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir.), amended 94 C.D.D.S. 3867 (9th Cir. 1994).

(21.) Browning v. Vernon, 44 F.3d 818, 823 (9th Cir. 1995).

(22.) See, e.g., Goodwin v. Metts, 885 F.2d 157 (4th Cir. 1989), cert. denied, 494 U.S. 1081 (1990) (involving police misconduct in 1983 and building on Clark v. Montgomery Ward & Co., 298 F.2d 346, 348 (4th Cir. 1962)). Metts was recently overruled on other grounds in an unpublished decision by Osborne v. Rose, 133 F.3d 916 (4th Cir. 1988) (Table Unpublished Disposition) Nos. 97-1259, 97-1264,1998 WL 17044 (4th Cir. Jan. 20, 1998) (per curiam).

(23.) See, e.g., Jean v. Collins, 107 F.3d 1111, 1115-17 (4th Cir. 1997) (involving police misconduct in 1982), different results reached upon reh'g, en banc, 155 F.3d 701 (4th Cir.), petition for cert. filed, 67 U.S.L.W. 3409 (U.S. Dec. 16, 1998) (No. 98-930); Geter v. Fortenberry, 849 F.2d 1550, 1559 (5th Cir. 1988) (involving police misconduct in 1982).

(24.) Johnson, 515 U.S. 304; Behrens, 516 U.S. 299.

(25.) Berryman, 150 F.3d 561.

(26.) Baulch, 70 F.3d 814.

(27.) See, e.g., Chuman, 960 F.2d 104.

Sanford Jay Rosen is a partner with the law firm of Rosen, Bien & Asaro in San Francisco.3