Powell v. Alexander

United States Court of Appeals

For the First Circuit

No. 02-2218

WALTER J. POWELL,

Plaintiff, Appellee,

v.

KATHLEEN ALEXANDER,

Defendant, Appellant,

CITY OF PITTSFIELD, EDWARD M. REILLY,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Lynch, and Lipez, Circuit Judges.

Kathleen Alexander, with whom Thomas C. Foley was on brief,

for appellant.

David P. Hoose, with whom Howard S. Sasson and Katz, Sasson,

Hoose, & Turnbull were on brief, for appellee.

November 24, 2004

LIPEZ, Circuit Judge. In response to a judgment entered

pursuant to 42 U.S.C. § 1983, defendant Kathleen Alexander, former

City Solicitor of Pittsfield, Massachusetts, appeals from the

district court's $10,000 punitive damages award against her.

First, Alexander argues that the court's specific factual

determinations underlying the award of punitive damages are clearly

erroneous and that the evidence in its totality does not meet the

legal standard for such an award. Second, Alexander argues that

punitive damages are unavailable against her in any event because

neither Powell's complaint nor the course of subsequent proceedings

adequately put her on notice that she was being sued in her

individual capacity and was therefore subject to personal liability

for punitive damages.

After considering the general principles authorizing

punitive damages in a § 1983 case, we reject Alexander’s argument

that the district court’s award was incompatible with those

principles. We next consider a circuit split on the appropriate

test for determining adequate notice of the capacity in which a

governmental official is sued, and join the majority of circuits in

adopting the "course of proceedings" test. Applying that test, we

reject Alexander's lack of notice claim and affirm the district

court's award of punitive damages against her.

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I.

In 1991, Walter Powell, an African-American police

officer, filed several state and federal actions against the City

of Pittsfield, the Acting Chief of Police, and the former Mayor,

among others, for impermissible race discrimination leading to his

termination from the police force. In September 1993, City

Solicitor Kathleen Alexander entered into a settlement agreement on

the City's behalf. The City agreed to pay Powell $81,000 and to

reinstate him as a police officer "conditioned upon" his

fulfillment of certain requirements, including "re-training" and

"undergoing a complete physical . . . examination." In return,

Powell agreed to dismiss the actions, which had generated negative

publicity for the City and fomented discord among members of the

police department.

Instead of closing the book on a contentious period in

City affairs, the signing of the settlement agreement marked the

beginning of a new and even longer dispute. Indeed, nearly three

years would pass before Powell returned to active duty as a

Pittsfield police officer. As a result of that protracted struggle

for the reinstatement contemplated by the settlement agreement,

Powell filed the instant suit in federal district court in

September 1997 against City Solicitor Alexander, the Mayor, the

Chief of Police, the City Physician, and the City of Pittsfield for

impeding and conspiring to impede his reinstatement to the City's

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police force in retaliation for his exercise of his constitutional

right to petition the courts for redress.1 Powell alleged that,

far from cooperating with his efforts at reinstatement, the

defendants had engaged in a concerted campaign to prevent or stall

his return to the police force -- first by exploiting the

possibility that his health was impaired by Hepatitis C infection,

and then by selectively and belatedly enforcing a local ordinance

barring police officers from holding outside employment2 -- because

he had filed the 1991 civil rights actions.

After a seven-day bench trial, the district court awarded

judgment for Powell on all counts in an 87-page written decision

containing 123 separately detailed findings of fact.3 The district

1

None of the defendants named in the 1997 lawsuit, save the

City of Pittsfield, was a party to the original 1991 lawsuit.

Powell also alleged that the City had committed a breach of

contract by failing to comply with the settlement agreement and had

violated his rights under Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. § 794. Defendants Dr. Gordon T. Bird and Police

Chief Gerald Lee were granted summary judgment on all claims

against them in 2001, while Powell's claims under 42 U.S.C. §§ 1981

and 1983 survived summary judgment to the extent that they alleged

retaliation for his exercise of his civil rights. See Powell v.

City of Pittsfield, 143 F. Supp. 2d 94 (D. Mass. 2001). Powell's

claims of retaliatory race discrimination in violation of 42 U.S.C.

§ 1981 against the remaining defendants were voluntarily dismissed

before trial.

2

Seeking income during the reinstatement process, Powell had

started a taxi/limousine service.

3

The district court held the City liable for violation of

Section 504 of the Rehabilitation Act, breach of contract, and

violation of 42 U.S.C. § 1983, and held the Mayor and City

Solicitor Alexander liable under 42 U.S.C. §§ 1983 and 1985(2) for

retaliation and conspiracy to retaliate against Powell for his

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court found that, "[f]ollowing the settlement, the defendants began

a campaign of obstruction, choreographed by the City Solicitor,

designed to pressure or manipulate Powell into abandoning his plan

to return to the police force." Powell v. City of Pittsfield, 221

F. Supp. 2d 119, 121 (D. Mass. 2002). Moreover, the court stated

that while "Alexander may have seen herself as a vigorous advocate

representing the interests of the Pittsfield police

department, . . . her actions were especially unworthy of a City

Solicitor." Id. at 152-53. The court awarded punitive damages in

the amount of $10,000 against Alexander, who now challenges that

award on appeal.

II.

On appeal from a bench trial, we review a district

court's factual findings for clear error and its legal conclusions

de novo. See Fed. R. Civ. P. 52(a); Cariglia v. Hertz Equip.

Rental Corp., 363 F.3d 77, 82 (1st Cir. 2004). Under the clear

error standard of review, an appellate court will not disturb the

factual determinations of a trial court unless, "after a searching

review of the entire record, the court of appeals 'forms a strong,

unyielding belief that a mistake has been made.'" Fed. Refinance

Co. v. Klock, 352 F.3d 16, 27 (1st Cir. 2003) (quoting Cumpiano v.

exercise of his civil rights. Powell v. City of Pittsfield, 221 F.

Supp. 2d 119 (D. Mass. 2002). Only Alexander appeals from the

court's decision, and only with respect to its award of punitive

damages.

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Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)). The

trial judge "sees and hears the witnesses at first hand and comes

to appreciate the nuances of the litigation in a way which

appellate courts cannot hope to replicate." Cumpiano, 902 F.2d at

152.

A. The District Court's Factual Findings Supporting Punitive

Damages

1. Three Letters and Two Notes

Alexander challenges as clearly erroneous the factual

determinations underpinning the district court's conclusion that

her course of conduct in delaying Powell's reinstatement was, taken

as a whole, "both outrageous and reprehensible," Powell, 221 F.

Supp. 2d at 152. She also challenges any finding that her conduct

was motivated by wrongful intent or involved "reckless or callous

indifference," Smith v. Wade, 461 U.S. 30, 56 (1983), to

plaintiff's federal rights. Crucial to the court's

characterization of Alexander's "course of behavior" were three

letters and two notes to which the district court adverted in its

explanation of its assessment of punitive damages. We briefly

describe here the relevant pieces of correspondence, the notes, and

their context.

a. Dr. Bird's December 21, 1993, Letter

Because he had been off the police force for three years

following his termination and during settlement negotiations,

Powell was required as a condition of reinstatement to undergo a

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routine physical examination and to attend the police academy as

though he were a new recruit. In October 1993, a physical

examination by the city physician, Dr. Bird, indicated that while

Powell was outwardly physically fit and healthy, he had slightly

abnormal liver function. Later tests revealed that Powell had

Hepatitis C, which may cause no physical symptoms and has a low

risk of transmissibility through casual contact, but which can lead

to serious liver disease.

On December 21, 1993, Dr. Bird wrote a letter to the

City's personnel department and sent a copy to Powell in which he

gave his opinion on Powell's physical fitness for reinstatement.

The letter stated:

After review of all of Mr. Powell's currently

available laboratory work, his consultation

[with a specialist], and the Physical

Standards for Public Safety Positions used by

the City, I feel that Mr. Powell has a

condition which would disqualify him for

appointment to a public safety position.

Listed as a disqualifying condition is active

hepatitis. As it is my feeling, and that of

the consultant, that Mr. Powell has chronic

active hepatitis, I feel he would currently be

disqualified.

The "standards" for "appointment to a public safety position" to

which Dr. Bird referred were state guidelines used to determine

candidates' eligibility for admission to "entry-level police

officer training programs," namely, the police academy. Dr. Bird

apparently assumed that the police academy admission guidelines

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also governed qualification for employment to the police force.4

Dr. Bird's letter concluded: "If the City concurs in this

disqualification, I understand that [Powell] has the right of

appeal to a medical review board. Other options would be at the

discretion of the appointing authority."

Alexander received a copy of Dr. Bird's letter from

personnel department staff. Instead of either concurring in or

overriding Dr. Bird's determination that Powell could not return to

work, she requested that Powell undergo a liver biopsy before a

final reinstatement decision could be made.

b. Alexander's May 12, 1994, Letter

Although Powell initially disputed that he had Hepatitis

C, he did have a liver biopsy in March 1994 at a Veterans Affairs

medical center in New York. In May 1994 his attorney forwarded a

letter from Powell's physician to Alexander, which stated that

"despite some laboratory evidence of mild liver function test

abnormality, [Powell was] looking healthy and fit for his job as a

police officer" and was "totally asymptomatic for acute or chronic

liver disease."

On May 12, 1994, Alexander responded by letter to

Powell's attorney that the City needed more information so that Dr.

4

Dr. Bird testified at trial that he concluded Powell was

disqualified "primarily" because of the police academy admission

guidelines, although he harbored additional concerns that even a

low risk of infectivity through the blood could affect Powell's

employability if he were injured in the line of duty.

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Bird could review the biopsy results independently. Alexander

wrote:

[I]f the City [P]hysician is satisfied that

Mr. Powell may safely return to work and

perform his duties based upon [the additional

biopsy data], [the Mayor] will then, assuming

all other conditions are met, make a

determination, with [the Chief of Police], in

regard to reinstatement.

Powell promptly signed a release allowing the biopsy results to be

transferred from the Veterans Affairs medical center to Dr. Bird

for analysis.

c. Dr. Bird's July 5, 1994, Letter

On July 5, 1994, Dr. Bird wrote a letter to Alexander,

which the court found to "constitute[], perhaps, the most

significant piece of evidence in this case." Powell, 221 F. Supp.

2d at 132. The letter began: "I stated in a letter 12/21/93 that

I felt [Powell] would be disqualified due to the presence of

chronic active hepatitis." Dr. Bird then gave a detailed

description of the liver biopsy results sent to him by Powell's

doctor. Dr. Bird next related that he had consulted medical

experts at the University of Massachusetts and the Centers for

Disease Control, "seeking any information on guidelines for this

condition," and discovered that no existing guidelines barred a

person infected with Hepatitis C from working as a police officer.

Dr. Bird stated: "The consensus was, given [Powell's] current state

of health, that there would be currently no reason to limit his

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physical activity." Dr. Bird's letter concluded: "Now that the

exact nature and stage of Mr. Powell's chronic liver disease is

known, I feel that he does not have a condition which would

disqualify him from returning to the police force." Dr. Bird's

copy of the letter, which he kept in his business files, was

accompanied by a sticky note that read, "Confidential per request

[of] K. Alexander." Powell remained unaware of the letter's

existence until it surfaced during discovery in the instant

lawsuit. At trial, Alexander denied that she had ever instructed

Dr. Bird to suppress the letter.

d. Alexander's Handwritten Notes

As part of her routine business practice, Alexander kept

handwritten, contemporaneous notes of her telephone conversations

with various individuals involved in Powell's reinstatement,

including the Mayor, Dr. Bird, and Powell's attorneys. On April 4,

1994, Alexander consulted a colleague versed in civil service law.

Her notes of that phone conversation contain references to the

"ADA," referring to the Americans with Disabilities Act of 1990,

Pub. L. No. 101-336, § 2, 104 Stat. 327 (1990) ("ADA"); the

possibility of "a major ADA problem"; and the availability of

"punitive dmgs?," meaning punitive damages.5 A later note dated

May 10, 1994, two days before Alexander wrote her letter of May 12,

5

See 42 U.S.C. § 1981a(a)(2) (authorizing punitive damages in

certain actions brought under the ADA).

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1994, to Powell’s attorney, refers to the ADA’s requirement of

reasonable accommodations to qualified individuals with

disabilities.6 The district court treated these notes as evidence

of Alexander's awareness that her conduct in delaying Powell's

reinstatement would violate federal law.7

2. Factual Findings on Alexander's "Particularly

Egregious Misconduct"

In light of this chronology of events and after assessing

the credibility of the witnesses who testified at trial, the court

determined that Alexander persisted in "particularly egregious

misconduct," Powell, 221 F. Supp. 2d at 122, and that she "engaged

in a course of behavior" that the court "deem[ed] to be 'outrageous

and worthy of condemnation.'" Id. at 152 (citation omitted). The

court then listed several examples of Alexander's egregious acts

and omissions, "to name just a few," id., each of which Alexander

alleges was a clearly erroneous factual determination. We also

examine whether the findings, if supportable, amount to outrageous

conduct in their cumulative effect.

6

See 42 U.S.C. § 12112(b)(5)(A) (defining impermissible

"discrimination" to include failure to make "reasonable

accommodations to the known physical or mental limitations of an

otherwise qualified individual with a disability who is an

applicant or employee, unless [the] covered entity can demonstrate

that the accommodation would impose an undue hardship on the

operation of [its] business").

7

As we discuss below in Part II.B.3, the court erred in basing

one of its legal conclusions supporting the availability of

punitive damages under § 1983 on these notes.

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a. Alexander's Failure to Forward Dr. Bird's Original

Report of December 21, 1993, to the Medical Review

Board

The district court found that Alexander failed to send

Dr. Bird's first letter, which refers to "a medical review board,"

to that board, "in violation of her legal duties." Id. The

medical review board, a body of the Massachusetts Criminal Justice

Training Council, was authorized to grant exceptions allowing

candidates with medical conditions to enroll in the police

academy.8 Alexander argues that she had no such legal duties

because the City's personnel department handled all such matters.

The court stated that "Pittsfield's personnel department

was unstaffed, and Alexander was fulfilling its responsibilities

with regard to Powell." Id. at 127. Alexander counters that the

department was "staffed and operating" at the time Powell sought

reinstatement. The record shows that the personnel department was

staffed but that it had no director at the relevant times.

Personnel staff apparently gave Alexander a copy of Dr. Bird's

letter because she was overseeing Powell's reinstatement under the

settlement agreement.

8

The Council's "Revised Interim Medical Guidelines and

Procedures" provide: "The Medical Review Board may except

candidates from these Medical Guidelines, in whole or in part,

consistent with the principle of a Bona Fide Occupational

Qualification (BFOQ) and the Reasonable Accommodation provisions"

of the applicable Massachusetts state anti-discrimination statute.

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This single misstatement by the district court that the

personnel department was "unstaffed" is immaterial to the court's

conclusion that Alexander should have referred Powell's case to the

medical review board. Alexander undertook to coordinate Powell's

reinstatement under the terms of the settlement, as evidenced by

the voluminous correspondence documenting her central role in

communicating various conditions of reinstatement to Powell's

attorneys. The court was entitled to infer that Alexander had

indeed taken control of the reinstatement process instead of

leaving Powell's reinstatement for the City's personnel staff to

handle according to routine procedures.

Although Dr. Bird forwarded to Alexander a copy of the

police academy admission guidelines, including information about

the medical review board, she stated at trial that she did not

familiarize herself with them. Alexander asserts that, in contrast

to Dr. Bird, she never viewed Powell's eligibility for admission to

the police academy as determinative of his eligibility for

reinstatement to the police force. Rather, "active hepatitis"

might or might not be a bar to employment as a police officer,

depending on the circumstances. Thus, Alexander maintains, any

action by the medical review board permitting Powell's admission to

the academy still would not have assuaged the City's independent

concerns about his qualification for reinstatement: Only the liver

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biopsy could have provided the information required to assess

Powell's ability to return to the police force.9

Regardless of the City's ultimate decision under its own

medical standards, the court found that Alexander's

"failure . . . to submit the necessary documentation" to the

medical review board "deprived Powell of the opportunity to obtain

[an] exception [for admission to the police academy], which in view

of his robust health and lack of symptoms he would very probably

have received." Id. at 127. Alexander's "inaction left Powell in

limbo." Id. Instead of being allowed to satisfy one of the

prerequisites for his return to the police force even as his biopsy

9

At trial, the parties disputed the City's need for liver

biopsy results in order to make a reinstatement determination. The

court found that Powell's expert medical witness "credibly opined

that requiring a liver biopsy for purposes of assessing whether

Powell was able to return to work was not reasonable . . . . [A]

liver biopsy was proper solely for purposes of determining whether

treatment might be appropriate, but the procedure would have told

Powell's physicians 'nothing about employability.'" Powell, 221 F.

Supp. 2d at 126-27. Alexander testified that she requested the

biopsy for the purpose of assessing the potential consequences of

treatment for Hepatitis C on Powell's physical condition, and that

she did not receive a doctor's opinion on this point until 1996.

At that time Powell submitted yet another doctor's opinion stating

not only that Powell was physically fit but also that treatment for

Hepatitis C "was mentioned to Mr. Powell and will be addressed in

the future with him . . . [but] at this time . . . would not seem

to be an obstacle to his returning to work." The court found that

Alexander "suggest[ed] for the first time" on re-cross-examination

at trial "that concerns about Powell's treatment had delayed his

return to work. This testimony was not credible." Id. at 139.

Powell also argued that the City's purported concern about the

possible effects of treatment on his performance as a police

officer constituted impermissible discrimination on the basis of

disability.

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and the City's final determination on reinstatement were pending,

Powell "continued in his ambiguous status, neither qualified nor

disqualified for reinstatement, until 1996." Id. The court

committed no clear error in determining that Alexander should have

ensured that Powell's case reached the medical review board.

b. Alexander's Deliberate Suppression of Dr. Bird's

July 5, 1994, Letter and Pressure on Dr. Bird to

Suppress its Contents

The court found that "Alexander deliberately hid" Dr.

Bird's second letter of July 5, 1994, "which cleared Powell to go

back to work, and pressured Dr. Bird to the point where he declined

to communicate candidly with a patient of his who was suffering

from a serious disease." Id. at 152. Based on testimony by the

Mayor, Dr. Bird, and one of Powell's former attorneys,10 the court

found that the letter's existence was known only to Dr. Bird and to

Alexander until its compelled disclosure during discovery. The

court also credited Dr. Bird's testimony at trial that Alexander

had told him to keep the letter confidential and to avoid

communicating directly with Powell. Although "Alexander

denied . . . ever asking Dr. Bird to keep the letter confidential,"

the court found that she had testified "without credibility" and

had "conceded that she never told anyone else about the letter."

Id. at 132.

10

Powell was represented by new counsel at trial, and one of

his former attorneys was permitted to testify regarding his

communications with Alexander.

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Alexander stresses that she did not forward Dr. Bird's

July 5, 1994, letter to the Mayor or to anyone else because she did

not consider the letter to be a "report" reflecting the "City

[P]hysician['s] satisf[action] that Mr. Powell may safely return to

work and perform his duties" as required by her May 12, 1994,

letter to Powell's attorney. She argues that Dr. Bird's second

letter did not, in fact, "clear[] Powell to go back to work."

Rather, Alexander interprets Dr. Bird's second letter as merely

reflecting his own realization that Powell's disqualification for

admission to the police academy did not automatically bar him from

eventual employment as a police officer after all, a conclusion

Alexander had reached long before in refusing to declare Powell

qualified or disqualified for reinstatement (regardless of his

eligibility for police academy admission) until he had a liver

biopsy.

The court found Alexander's interpretation of Dr. Bird's

July 5, 1994, letter untenable and her testimony that "she did not

view the letter 'as significant' . . . because in her mind, it

'wasn't a report'" lacking in credibility. Id. Instead, after

analyzing the text of both of Dr. Bird's letters and the trial

testimony about the circumstances in which those letters were

written, the court permissibly concluded that Dr. Bird's July 5,

1994, letter was indeed a "report," that it provided all the

information Alexander purported to require in her May 12, 1994,

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letter, and that it should have cleared the way for Powell's

reinstatement as early as July 1994.

The district court had more than sufficient evidence

before it from which to infer not only that Alexander's

idiosyncratic interpretation of Dr. Bird's letter was objectively

unreasonable, but also that she "obviously repressed [the letter]

as part of the effort to forestall Powell's reinstatement and to

avoid performing on [her] promise to permit reinstatement 'if the

City [P]hysician is satisfied.'" Id. This finding was not clearly

erroneous.

c. Alexander's Efforts to "Mask her Interference" and

the Alleged Agreement to "Hold off" on Dr. Bird's

Report

The district court found that "Alexander methodically

kept a stream of letters going to Powell and his counsel in an

effort to mask her interference with his reinstatement, and went so

far as to manufacture a nonexistent agreement that Dr. Bird 'hold

off' on his report on Powell's health." Id. at 152. Alexander

maintains that Powell's attorney told her in a phone conversation

on July 13, 1994, shortly after her receipt of Dr. Bird's July 5,

1994, letter, that Powell was now seeking disability retirement

instead of reinstatement and that Dr. Bird could therefore "hold

off" on writing a report based on the biopsy results regarding

Powell's fitness for reinstatement. Alexander asserts that Dr.

Bird was free at any time to send a copy of his July 5, 1994,

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letter (which she did not consider to be a "report") to Powell, and

that Dr. Bird misunderstood her direction to "hold off" on writing

a true "report" (while Powell pursued disability retirement) as a

direction to keep the letter under wraps. At trial, Powell's

former attorney denied that he agreed to delay Dr. Bird's report

and testified that it was Alexander who suggested that Powell apply

for disability retirement. The court did not credit Alexander's

testimony to the contrary.

In July 1994, unaware that Dr. Bird had just written to

Alexander to state that he felt "that [Powell] does not have a

condition which would disqualify him from returning to the police

force," Powell sought Dr. Bird's signature on his application for

disability retirement, based on Dr. Bird's original December 21,

1993, opinion that Powell was disqualified from employment on the

police force. On July 28, 1994, Dr. Bird wrote to Powell,

declining to sign the form and stating that Powell's "treating

physician" should sign the form instead. In November 1994, after

Powell approached him a second time to sign his disability form,

Dr. Bird wrote to Powell that "[a]fter discussion of your request

with the City Solicitor, I have been advised that it would be

ethically inappropriate as the city physician for me to give you

directly any statement of disability or complete the application"

because "you are not under my professional care, nor have I been

treating you." Dr. Bird testified that he would also have told

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Powell that he did not consider him to be disabled if he had not

been told to keep the information secret. Powell's application for

disability retirement eventually stalled because he had not accrued

the necessary number of service years on the police force.

During this same period, from September 1994 to January

1995, Alexander wrote monthly letters to Powell's attorneys seeking

information on "the status of [his] application for [disability]

retirement" and to discern "what, if anything, the City could do to

help with closure of this matter." Each of these letters fails to

mention Dr. Bird's change of opinion regarding Powell's fitness to

work. The court specifically rejected the credibility of

Alexander's trial testimony on cross-examination that it never

occurred to her that Powell might have abandoned his disability

retirement application if he had been aware of Dr. Bird's

conclusions about his ability to return to the police force as

stated in the July 5, 1994, letter.

The court also found that Alexander's September 20, 1994,

letter to Powell's attorney, the first in a "stream of letters"

regarding Powell's disability retirement application status, id.,

contained

what can only be characterized as the

outrageously misleading statement that at the

time of settlement, "no one anticipated that

[Powell] would have a health problem which

would impede the reinstatement." This

statement was made at a time when [Alexander]

was perfectly aware of the unanimous medical

opinion, including the considered view of the

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City's own physician, that no health problem

impeded Powell's reinstatement.

Id. at 135 (first alteration in original). In later correspondence

with Powell's attorneys throughout the next year, Alexander

continued to treat his medical condition as an unresolved issue.

Given this evidence, the court committed no clear error

in concluding that:

Alexander's failure to disclose . . . to

[Powell's attorney] in her conversations with

him that, as of July 5, 1994, she had in her

possession unambiguous documentation of the

City Physician's opinion that Powell was fit

to return to work constitutes egregious

misconduct and reflects the defendants' level

of determination to retaliate against Powell

for his earlier lawsuit by blocking his

reinstatement by whatever means.

Id. at 133.

d. Omission of the Letter from Submissions to the

Court and Efforts to Involve Dr. Bird in Those

Omissions

The district court found that Alexander intentionally

omitted any reference to Dr. Bird's July 5, 1994, letter from the

affidavits and numerous exhibits she submitted to the court in 1996

in response to Powell's motion to vacate the settlement agreement.

"Worse," the court found, "Alexander forced a kind of fraud upon

Dr. Bird when she left any reference to the letter out of his

affidavit, which she drafted." Id. at 152. As a result, the

letter's existence remained unknown to anyone except Alexander and

Dr. Bird until it materialized more than one year later during

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discovery in Powell's 1997 lawsuit. The court thus found that

"Alexander's deliberate suppression of the letter distorted the

record submitted to the court in an effort to avoid disclosure of

the defendants' bad faith." Id. at 138.

Alexander argues that she submitted the affidavits merely

to document the City's timely responses to Powell's reinstatement

requests and to show that any delay in Powell's reinstatement was

not attributable to the City's lack of diligence but was the result

of Powell's own equivocation about whether to pursue disability

retirement instead. Dr. Bird's July 5, 1994, letter was, in her

view, irrelevant to that showing. Yet Dr. Bird's affidavit

describes his review of Powell's health status, including the

biopsy results, in such detail that the absence of any reference to

the July 5, 1994, letter in which he reported his conclusions based

on that same review is striking.

Alexander reiterates that she simply did not view the

July 5, 1994, letter or its contents as material to Dr. Bird's

affidavit because it did not relate to the legitimate reasons for

the delay in Powell's reinstatement, namely, Powell's own failure

to satisfy the City's conditions by refusing to have a liver biopsy

and by deciding to petition for disability retirement and expand

his taxi/limousine business instead. The court refused to credit

this argument in light of Alexander's professional experience as a

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litigation attorney engaged in a dispute about Powell's employment

qualifications. Instead, the court found that

[a]ny fair presentation of the documents

pertinent to the dispute about reinstatement

and the Settlement Agreement generally must

necessarily have included the July 5th letter,

which would have confirmed the absence for

nearly two years of any impediment to Powell's

reinstatement.

Id. The court did not err in determining that the effort required

to exclude a single letter from a list of notes and other proof of

the communications between Alexander and Dr. Bird in his affidavit

constituted circumstantial evidence of deliberate omission.

The court also credited Dr. Bird's testimony that he

himself viewed the omission from the affidavit as unusual, although

he made no effort to correct it. Alexander argues that she should

not be charged with controlling Dr. Bird's submission to the court

in the form of his affidavit merely because he misunderstood her

directive to "hold off" on a "report" as meaning that he should

keep his July 5, 1994, letter confidential. She maintains that Dr.

Bird could easily have overridden her judgment that the letter had

no bearing on Powell's fulfillment of the settlement agreement's

reinstatement conditions and that he could have made the

appropriate additions to his own affidavit.11 We find no clear

11

At trial, Alexander sought to introduce into evidence a fax

cover sheet that she sent to Dr. Bird along with the draft

affidavit, inviting him to add any information he thought

pertinent. The district court excluded the fax cover sheet because

it had not been listed as a proposed trial exhibit. On appeal,

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error in the court's conclusion, based on Dr. Bird's testimony and

other evidence, that Dr. Bird deferred to Alexander's legal

expertise, as he expected her to defer to his medical opinions.

As for Alexander's own affidavit, accompanied by forty-

nine exhibits, in which she documented her efforts to cooperate

with Powell's attorneys in his reinstatement effort, the court

again was not clearly erroneous in finding that her decision to

exclude the July 5, 1994, letter of Dr. Bird's from the court

filing was deliberate, as was her decision in 1994 not to pass the

letter on to Powell's attorney in the first place.

e. Summary

In short, after a careful review of the evidence of

Alexander's overall course of behavior, we find nothing clearly

erroneous in the findings of the district court that, cumulatively,

Alexander engaged in "particularly egregious misconduct," id. at

122, that was "outrageous and worthy of condemnation." Id. at 152

(internal quotation marks omitted).

B. Availability of Punitive Damages Under 42 U.S.C. § 1983

1. General Principles

Alexander argues that the evidence before the trial

court, and the court's factual findings thereon, failed to meet the

Alexander does not challenge this ruling.

-23-

legal standard for an award of punitive damages.12 While "punitive

damages are available in a 'proper' [42 U.S.C.] § 1983 action,"

Smith v. Wade, 461 U.S. 30, 35 (1983) (citation omitted),13 such

damages are "not favored in the law and are allowed only with

caution and within normal limits," McKinnon v. Kwong Wah Rest., 83

F.3d 498, 508 (1st Cir. 1996).14 Whether a particular case arising

under § 1983 is a "proper" case for an award of punitive damages is

a question of law subject to de novo review. See Marcano-Rivera v.

Pueblo Int'l, Inc., 232 F.3d 245, 254 (1st Cir. 2000).

Punitive damages may be awarded under 42 U.S.C. § 1983

only where "the defendant's conduct is shown to be motivated by

evil motive or intent, or when it involves reckless or callous

12

Alexander also challenges as clearly erroneous the district

court's findings supporting her liability for compensatory damages

"to the extent that the district court's findings on the underlying

retaliation claim may also be said to support the punitive damages

award." We find nothing clearly erroneous in the findings required

to support the award of compensatory damages for the retaliation

claim, and we discuss here the court's analysis of Alexander's

underlying liability for deprivation of Powell's First Amendment

right only to the extent necessary to provide a context for the

court's punitive damages analysis.

13

42 U.S.C. § 1983 states, in relevant 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 . . . . "

14

Alexander does not challenge the amount of the punitive

damages award.

-24-

indifference to the federally protected rights of others." Smith,

461 U.S. at 56. The Supreme Court has stated that the requisite

intent "at a minimum" is "recklessness in its subjective form."

Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999).15 Thus, "the

inquiry should focus on the acting party's state of mind," Romano

v. U-Haul Int'l, 233 F.3d 655, 669 (1st Cir. 2000), and the central

question is whether the defendant acted "in the face of a perceived

risk that [her] actions [would] violate federal law," Kolstad, 527

U.S. at 536; see also DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 38

(1st Cir. 2001).

We have interpreted Kolstad as distinguishing between a

defendant’s "intent to do [an] act" and her intent "to effect a

civil rights violation" as a consequence of that act. Iacobucci v.

Boulter, 193 F.3d 14, 26 (1st Cir. 1999) (citation omitted). The

Kolstad Court described several situations in the employment

discrimination context in which punitive damages may be

inappropriate even though a defendant has engaged in intentional

acts of discrimination:

In some instances, [an] employer may simply be

unaware of the relevant federal prohibition.

There will be cases, moreover, in which the

employer discriminates with the distinct

belief that its discrimination is lawful. The

underlying theory of discrimination may be

15

While Kolstad addressed a claim for punitive damages under

42 U.S.C. § 1981a, we consider "Kolstad's teachings [to be] fully

applicable to punitive damages under section 1983." Iacobucci v.

Boulter, 193 F.3d 14, 25 n.7 (1st Cir. 1999).

-25-

novel or otherwise poorly recognized, or an

employer may reasonably believe that its

discrimination satisfies a bona fide

occupational qualification defense or other

statutory exception to liability.

Id. at 536-37.16 Where the underlying liability for deprivation of

a federally protected right under § 1983 rests on a finding of

intentional conduct, then, the state of mind requirement for the

availability of punitive damages limits those damages to that

"subset of cases," id. at 534, in which a plaintiff also adduces

evidence that permits an inference that the defendant was aware of

the risk that those intentional acts would violate federal law.

2. Powell's Constitutionally Protected Right to

Petition the Courts for Redress of Grievances

As the district court recognized, "[o]ur constitutional

system gives every citizen the right to seek redress in the

courts . . . without fear that recourse to the law will make that

citizen a target for retaliation." Powell, 221 F. Supp. 2d at 121.

The First Amendment to the U.S. Constitution provides, in relevant

part: "Congress shall make no law . . . abridging the freedom of

speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of

16

This case does not resemble any of these situations.

Alexander did not argue at trial that her retaliation for Powell's

exercise of his First Amendment right to petition the courts was

somehow lawful or that Powell's filing of the 1991 lawsuit was

beyond the scope of the First Amendment's protection. Rather, she

contested the factual basis for a finding of retaliation in the

first instance.

-26-

grievances." For decades, the Supreme Court has consistently

recognized the right to petition all branches of the government,

including the courts, Cal. Motor Transp. Co. v. Trucking Unltd.,

404 U.S. 508, 510 (1972), for redress of grievances as "among the

most precious of the liberties safeguarded by the Bill of Rights."

United Mine Workers, Dist. 12 v. Ill. State Bar Ass'n, 389 U.S.

217, 222 (1967).17 The Supreme Court has also identified "the

purpose behind the Bill of Rights, and of the First Amendment in

particular: to protect unpopular individuals from retaliation --

and their ideas from suppression -- at the hand of an intolerant

society." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357

(1995).

Claims of retaliation for the exercise of First Amendment

rights are cognizable under § 1983. See, e.g., Mt. Healthy City

17

The right to petition the courts for redress also implicates

the First Amendment right of free speech. See United Mine Workers,

389 U.S. at 222 (rights to assemble and to petition the government

for redress of grievances "are . . . intimately connected, both in

origin and in purpose, with the other First Amendment rights of

free speech and free press. 'All these, though not identical, are

inseparable.'") (quoting Thomas v. Collins, 323 U.S. 516, 530

(1945)); NAACP v. Button, 371 U.S. 415, 429 (1965) (civil rights

"litigation is a means for achieving the lawful objectives of

equality of treatment by all government . . . . It is thus a form

of political expression . . . . And under the conditions of modern

government, litigation may well be the sole practicable avenue open

to a minority to petition for redress of grievances."); see also

Robert L. Tsai, Conceptualizing Constitutional Litigation as Anti-

Government Expression: A Speech-Centered Theory of Court Access, 51

Am. U. L. Rev. 835, 838 (2002) (advocating treatment of "an

individual's efforts to secure her constitutional rights as the

equivalent of engaging in anti-government expression").

-27-

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (school

board's refusal to renew untenured teacher's contract in

retaliation for exercise of right to free speech actionable).

"Retaliation, though it is not expressly referred to in the

Constitution, is nonetheless actionable because retaliatory actions

may tend to chill individuals' exercise of constitutional rights."

ACLU of Md., Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir.

1993). Retaliation for the exercise of the right to petition the

courts for redress may take many forms, ranging from potential

negative treatment for the mere threat to file suit in the future,

see, e.g., Poole v. County of Otero, 271 F.3d 955, 960 (10th Cir.

2001) (recognizing retaliatory prosecution claim where police

instituted criminal charges after receiving indication of

plaintiff's intent to file civil suit), to actual economic injury

following the filing or pursuit of grievances, see, e.g, Collins v.

Nuzzo, 244 F.3d 246, 251 n.2 (1st Cir. 2001) (treating claim that

license application was denied because of applicant's exercise of

right to appeal prior denial of license renewal as "an ordinary

claim of unconstitutional retaliation for protected speech in

violation of the First Amendment"); Fishman v. Clancy, 763 F.2d

485, 486-87 (1st Cir. 1985) (attempts to terminate public school

teacher who had filed more grievances "than any other . . . teacher

had ever filed" and who had engaged in other First Amendment

activities cognizable under § 1983).

-28-

In order to prevail on a § 1983 claim of retaliation for

First Amendment activity under the legal standard enunciated in Mt.

Healthy, a plaintiff must first show "that his conduct was

constitutionally protected, and that this conduct was a

'substantial factor' or . . . a 'motivating factor'" for the

defendant's retaliatory decision. 429 U.S. at 287. The defendant

may then avoid a finding of liability by showing that "it would

have reached the same decision . . . even in the absence of the

protected conduct." Id.18

In this case, the district court concluded:

There is no question that Powell engaged in

constitutionally protected conduct by filing

the 1991 lawsuit against Pittsfield, its

officials, and police officers. Defendants

have not alleged that Powell's 1991 litigation

was "baseless" and therefore not within the

shelter of the First Amendment, see Bill

Johnson's Restaurants, Inc. v. N.L.R.B., 461

U.S. 731, 741, 76 L. Ed. 2d 277, 103 S. Ct.

2161 (1983), or otherwise unprotected.

Connick v. Myers, 461 U.S. 138, 148 n.8, 75 L.

Ed. 2d 708, 103 S. Ct. 1684 (1983) ("right to

protest racial discrimination [is] a matter

inherently of public concern"). Given the

substantial settlement obtained by the

plaintiff in 1993, any argument that the 1991

lawsuit was baseless would be frivolous.

Powell, 221 F. Supp. 2d at 140-41. The court found that Powell's

lawsuit alleging racial discrimination created hostility in the

18

We recognize that "[a] retaliatory state of mind typically

is not susceptible to proof by direct evidence." Ferranti v.

Moran, 618 F.2d 888, 892 (1st Cir. 1980) (plaintiff properly stated

claim of retaliation based on circumstantial evidence).

-29-

police department, id. at 124, which Alexander represented as City

Solicitor, and that she was aware that his return to the police

force would cause "friction." Id. The district court then

concluded that, more likely than not, Alexander and the Mayor

retaliated against Powell for his constitutionally protected

conduct because they "knew that if [he] was reinstated and

thereafter filed another lawsuit, they would have to deal with it."

Id. at 142.19

3. The District Court's Punitive Damages Analysis

In its richly detailed and carefully crafted 87-page

opinion, the court devoted slightly less than two pages at the end

of the opinion to its punitive damages analysis. This observation

is not a criticism. Rather, we make that observation to make the

important point that the relatively brief punitive damages analysis

at the end of the opinion unmistakably draws upon the compendious

factfinding and legal analysis on the claim for compensatory

damages that precedes it.

Based on Alexander's handwritten notes documenting her

phone conversation with a colleague about the ADA, the district

court concluded in part that punitive damages were authorized in

this case because "Alexander's notes reflect that she was aware

19

The court also found that Alexander failed to establish by

a preponderance of the evidence that she would have made the same

decision to delay Powell's reinstatement in the absence of his

protected conduct. See Powell, 221 F. Supp. 2d at 143.

-30-

that her actions violated federal law, and thus she 'acted in the

face of a perceived risk that [her] actions'" would lead to that

result. Id. at 152 (quoting Kolstad, 527 U.S. at 536) (alteration

in original).20 However, the "federal law" to which "Alexander's

notes" refer (the ADA) was not in fact the same federal law that

the court found Alexander to have violated (the First Amendment

right to seek redress in the courts as protected by § 1983).

Indeed, Powell brought no claim under the ADA against any of the

defendants, and only the City of Pittsfield was subject to his

claim under the related Rehabilitation Act.21 Id. at 122.

In order to recover punitive damages, a plaintiff

ordinarily must "establish[] liability for either compensatory or

nominal damages." Kerr-Selgas v. Am. Airlines, Inc., 69 F.3d 1205,

1215 (1st Cir. 1995) (plaintiff must make "a timely request for

nominal damages"). Given the absence of a claim by Powell that

Alexander violated his rights under the ADA, her subjective

awareness of the risk that she might violate Powell's rights under

20

Our review of the record having revealed no notes written by

Alexander that explicitly refer to any other federal law, we assume

that the district court referred to her notes on the ADA alone.

21

The Rehabilitation Act provides, in relevant part: "No

otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving Federal financial assistance or under any program or

activity conducted by any Executive agency or by the United States

Postal Service." 29 U.S.C. § 794(a). See also id. § 794(d)

(adopting standards of the ADA for application).

-31-

the ADA with her retaliatory conduct is irrelevant to the propriety

of an award of punitive damages for a § 1983 violation of a First

Amendment right. See Iacobucci, 193 F.3d at 27 (evidence tending

to show that defendant was aware of the risk of violating

plaintiff's right to be free from excessive force during arrest had

no bearing on defendant's subjective intent towards plaintiff's

right to be free from arrest without probable cause, the right

defendant actually violated under § 1983). The court's

determination that Alexander perceived the risk that her actions

would violate Powell's federally protected rights under the ADA,

therefore, does not support an award of punitive damages for

Alexander's violation of Powell's First Amendment right to petition

the courts for redress. Instead, the court had to find, explicitly

or implicitly, that Alexander's retaliatory actions manifested at

least "reckless or callous indifference to" Powell's First

Amendment right. Smith, 461 U.S. at 56. For the reasons we now

set forth, we are satisfied that the court implicitly made such a

finding, and that this finding is legally and factually

supportable.

In its punitive damages analysis, the district court also

justified its award of punitive damages because "Alexander's

actions in this case were both outrageous and reprehensible."

Powell, 221 F. Supp. 2d at 152. The court then provided a non-

exhaustive list of examples of her acts and omissions, discussed in

-32-

detail above in Part II.A.2, underlying that determination. "In

short," the district court concluded, "Alexander engaged in a

course of behavior that this court deems to be outrageous and

worthy of condemnation." Id. (internal quotation marks omitted).

While the Supreme Court's decision in Kolstad clarified

that "the presence (or absence)" of egregious or outrageous acts

"does not in itself determine the propriety (or lack of propriety)

of punitive damages in a given case," Iacobucci, 193 F.3d at 26

(citation omitted), such damages remain available where a

defendant's egregious intentional conduct itself demonstrates her

perception of a "risk that [her] actions [would] violate federal

law." Kolstad, 527 U.S. at 536. "To be sure, egregious or

outrageous acts may serve as evidence supporting an inference of

the requisite 'evil motive.'" Id. at 538. Indeed, "[c]onduct

warranting punitive awards has been characterized as

'egregious' . . . because of the defendant's mental state." Id.

We have described the plaintiff's obligation to

demonstrate a defendant's state of mind regarding the consequences

of her intentional acts as "a heightened burden." Zimmerman v.

Direct Fed. Credit Union, 262 F.3d 70, 84 (1st Cir. 2001)

(distinguishing state law standard for punitive damages from that

imposed by § 1983). This description merely reflects the dual

purposes that a plaintiff's evidence must serve in a case where

punitive damages are sought; it does not preclude evidence of

-33-

egregious misconduct from serving, in appropriate circumstances,

both as evidence of the alleged violation of a federal right and as

evidence of the defendant’s awareness of the risk that her actions

would violate that federal right.

Indeed, in cases involving retaliation, a defendant's

"actions and the effect of those actions are closely connected in

a way not necessarily present in other types of cases." Che v.

Mass. Bay Transp. Auth., 342 F.3d 31, 41 (1st Cir. 2003) (remanding

for jury trial on punitive damages where employer engaged in

"intentional discriminatory retaliation"). The legal standard for

a finding of liability for retaliation (the underlying liability

claim in a case such as this) already entails an inquiry into a

defendant's motive as well as into the legally protected nature of

the plaintiff's conduct. See Mt. Healthy, 429 U.S. at 287

(plaintiff must show "that his conduct was constitutionally

protected, and that this conduct was a 'substantial factor'

or . . . a 'motivating factor'" for the defendant's retaliatory

decision to shift burden to defendant). Where a defendant engages

in particularly "outrageous" acts of retaliation and where the

right whose exercise triggers those retaliatory acts is a well-

established constitutional right, a factfinder "could, but need

not, fairly infer that the [defendant] harbored malice or reckless

indifference" towards that federal right. Che, 342 F.3d at 42.

-34-

Although the specific intent to violate a plaintiff’s

federally protected right will support a punitive damages award,

"reckless indifference" towards a plaintiff's federally protected

right also suffices to authorize liability for punitive damages

under § 1983.22 See, e.g., Dimarco-Zappa, 238 F.3d at 38 (finding

no abuse of discretion in award of punitive damages where "[t]he

extent of federal statutory and constitutional law preventing

discrimination on the basis of ethnicity or race suggests that

defendants had to know that such discrimination was illegal, and

that [defendants' discriminatory conduct] exhibited 'reckless and

callous indifference' to [plaintiff's] federal rights, if not evil

intent.") (citation omitted); Rubinstein v. Adm'rs of Tulane Educ.

Fund, 218 F.3d 392, 406 (5th Cir. 2000) (evidence that defendant's

agent retaliated against plaintiff "because he 'hauled colleagues

22

In his majority opinion in Smith v. Wade, 461 U.S. at 42-43,

Justice Brennan parsed various formulations of the standard of

recklessness that suffices to authorize an award of punitive

damages in the absence of "actual malice." He quoted the standard

announced in Milwaukee & St. Paul Ry. Co. v. Arms, 91 U.S. 489,

493, 495 (1876), as an exemplar: "that reckless indifference to the

rights of others which is equivalent to an intentional violation of

them . . . that entire want of care which would raise the

presumption of a conscious indifference to consequences." Justice

Brennan noted that this standard distinguishes between

"indifference, conscious or otherwise," and "intent," while holding

both states of mind of similar culpability. Smith, 461 U.S. at 43

n.10. In Kolstad, the Supreme Court clarified that in the context

of intentional discrimination, a defendant must act "in the face of

a perceived risk that its actions will violate federal law to be

liable in punitive damages." Kolstad, 527 U.S. at 536. We have

thus described the standard as requiring "conscious indifference"

towards a plaintiff's federally protected rights. Iacobucci, 193

F.3d at 26.

-35-

into court to try to resolve differences' . . . indicates a healthy

disdain for [plaintiff's] rights to seek redress in the courts for

perceived wrongs [and was] adequate to meet the standard of

reckless indifference at least, if not outright animus, towards

those rights").

As noted, the court found that Alexander's retaliatory

actions "were especially unworthy of a City Solicitor." Powell,

221 F. Supp. 2d at 152-53. In our judgment, this focus by the

court on conduct unworthy of an attorney reflects the district

court's implicit finding that Alexander, as a former general

litigator, as City Solicitor (however overburdened and

inexperienced in municipal law),23 and as the attorney who

negotiated the 1993 settlement agreement, recognized and acted with

"reckless or callous indifference" towards Powell's constitutional

right to petition the courts for redress. Smith, 461 U.S. at 56.

In other words, as an attorney, Alexander surely understood that

Powell's filing of his 1991 lawsuit was an exercise of his First

Amendment right to petition the government for redress, and that in

retaliating against him for the filing of that lawsuit she risked

23

According to the district court, "[w]hen [Alexander] started

[the job of City Solicitor], the [S]olicitor's office was in bad

shape. There was a huge number of cases, and files were on the

floor. Alexander had been a general litigator and had no

experience in municipal law. She was working 12-15 hours per day,

6 days a week, and had only one half-time assistant. Due to her

efforts, the organization and professionalism of the Solicitor's

office quick[l]y improved." Powell, 221 F. Supp. 2d at 122.

-36-

violating his right under the Constitution. Her conduct was

particularly unworthy of a City Solicitor because of her callous

indifference to Powell's exercise of that right. Indeed, Alexander

never argued at trial or on appeal that Powell's filing of his 1991

lawsuit was not protected by the First Amendment or that she was

unaware that retaliation against Powell could violate his First

Amendment right to seek redress in the courts. Moreover, there is

substantial evidence in this record of Alexander's "consciousness

of wrongdoing," McKinnon, 83 F.3d at 509, in the form of her

elaborate efforts to prevent Dr. Bird's critical July 5, 1994,

letter (which the court found "cleared Powell to go back to work,"

Powell 221 F. Supp. 2d at 152), from coming to light.

We conclude, therefore, that the district court's

detailed factual analysis of Alexander's conduct, including the

examples it specifically identified as "outrageous and

reprehensible" and "especially unworthy of a City Solicitor,"

Powell, 221 F. Supp. 2d at 152-53, supports its implied finding

that Alexander acted "in the face of a perceived risk that [her]

actions [would] violate federal law [Powell's First Amendment right

under § 1983]," Kolstad, 527 U.S. at 536, and thus with sufficient

"evil motive" or "reckless or callous indifference to the federally

protected rights of others," Smith, 461 U.S. at 56, to meet the

legal standard for punitive damages under § 1983.

-37-

III.

We turn to Alexander's argument, raised for the first

time on appeal, that she is not subject to punitive damages because

she did not have proper notice that she was being sued in her

individual capacity.24 Both Powell's complaint and amended

complaint were silent on the capacity in which he sought to sue

Alexander, whom the complaints identified as "a natural person who

at all times pertinent to this complaint was the City Solicitor for

the defendant City of Pittsfield."

A. Per Se Approach or Course of Proceedings

Alexander invites us to adopt a bright-line, or "per se,"

approach to resolving a complaint's ambiguity or silence on the

issue of capacity, such as that employed by the Eighth Circuit.

Under this approach, a defendant governmental official is presumed

to be sued solely in his or her official capacity unless the

complaint specifically states otherwise. See, e.g., Johnson v.

Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("[O]nly

an express statement that [governmental officials] are being sued

in their individual capacity will suffice to give proper notice to

24

Powell argues that Alexander has forfeited this issue by

failing to raise it by objection to the magistrate judge's report

and recommendation regarding summary judgment, at trial in her

motions pursuant to Fed. R. Civ. P. 52(c), or after trial in a

motion to amend judgment or motion for a new trial. This court

may, in its discretion, excuse forfeiture, and we choose to do so

here to resolve this important issue. Chestnut v. City of Lowell,

305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam).

-38-

the defendants . . . ."); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d

615, 620 (8th Cir. 1995) ("[P]laintiff's complaint [must] contain

a clear statement of her wish to sue defendants in their personal

capacities."). In Nix v. Norman, 879 F.2d 429, 431 (8th Cir.

1989), the Eighth Circuit emphasized the importance of giving

governmental officials clear notice of the capacity in which they

are being sued at the outset of litigation -- in the complaint

itself. Early and explicit notice permits governmental official

defendants who are subject to personal liability for monetary

damages to assess matters crucial to their litigation strategy,

including the propriety of raising particular defenses available

only to governmental officials sued in a particular capacity. For

example, while an official-capacity defendant may raise the defense

of sovereign immunity, a personal-capacity defendant may assert

"objectively reasonable reliance on existing law," a defense not

available to official-capacity defendants. See Kentucky v. Graham,

473 U.S. 159, 167 (1985) (setting forth defenses to liability under

§ 1983 to "illustrate the basic distinction between personal- and

official-capacity actions"). Defendants with early notice of

potential personal liability may also assess "the availability of

insurance coverage and whether there are potential conflicts of

interest that might require separate representation of defendants."

Charron v. Picano, 811 F. Supp. 768, 772 (D.R.I. 1993).

-39-

Notwithstanding the concerns reflected in the Eighth

Circuit's analysis, the other circuits have, with virtual

unanimity, adopted the "course of proceedings" test as the better

approach.25 The Supreme Court has also acknowledged that:

in many cases, the complaint will not clearly

specify whether officials are sued personally,

in their official capacity, or both. "The

course of proceedings" in such cases typically

will indicate the nature of the liability

sought to be imposed.

Graham, 473 U.S. at 167 n.14 (quoting Brandon v. Holt, 469 U.S.

464, 469 (1985)). We now join the multitude of circuits employing

the "course of proceedings" test, which appropriately balances a

defendant's need for fair notice of potential personal liability

against a plaintiff's need for the flexibility to develop his or

her case as the unfolding events of litigation warrant. In doing

so, we decline to adopt a formalistic "bright-line" test requiring

25

See, e.g., Moore v. City of Harriman, 272 F.3d 769, 772 (6th

Cir. 2001); Atchinson v. District of Columbia, 73 F.3d 418, 425

(D.C. Cir. 1996) (approving course of proceedings test but

declining to employ it where complaint was not silent on issue of

capacity of suit); Biggs v. Meadows, 66 F.3d 56, 58 (4th Cir.

1995); Colvin v. McDougall, 62 F.3d 1316, 1317 (11th Cir. 1995);

Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993); Houston v. Reich,

932 F.2d 883, 884 (10th Cir. 1991); Price v. Akaka, 928 F.2d 824,

828 (9th Cir. 1990); Melo v. Hafer, 912 F.2d 628, 635 (3d Cir.

1990), aff'd on other grounds, 502 U.S. 21, 24 n.* (1991)

(declining to resolve circuit split on proper approach to capacity

analysis); Shockley v. Jones, 823 F.2d 1068, 1071 (7th Cir. 1987)

(presumption favoring official-capacity suit only is not

conclusive; "a court must look to the manner in which the parties

have treated [the] suit"). See also Pieve-Marín v. Combas-Sancho,

967 F. Supp. 667, 669 (D.P.R. 1997) (applying course of proceedings

test); but see Charron, 811 F. Supp. at 772 (D.R.I. 1993) (applying

per se test).

-40-

a plaintiff to use specific words in his or her complaint in order

to pursue a particular defendant in a particular capacity.

However, we do not encourage the filing of complaints which do not

clearly specify that a defendant is sued in an individual capacity.

To the contrary, it is a far better practice for the allegations in

the complaint to be specific. A plaintiff who leaves the issue

murky in the complaint runs considerable risks under the doctrine

we adopt today.

Under the "course of proceedings" test, courts are not

limited by the presence or absence of language identifying capacity

to suit on the face of the complaint alone. Rather, courts may

examine "the substance of the pleadings and the course of

proceedings in order to determine whether the suit is for

individual or official liability." Pride v. Does, 997 F.2d 712,

715 (10th Cir. 1993). Factors relevant to this analysis include

"the nature of the plaintiff's claims, requests for compensatory or

punitive damages, and the nature of any defenses raised in response

to the complaint, particularly claims of qualified immunity."

Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001);

see also Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995). A court

may also take into consideration "whether the parties are still in

the early stages of litigation," Moore, 272 F.3d at 772 n.1,

including whether amendment of the complaint may be appropriate.

No single factor is dispositive in an assessment of the course of

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proceedings. "Throughout, the underlying inquiry remains whether

the plaintiff's intention to hold a defendant personally liable can

be ascertained fairly." Biggs, 66 F.3d at 61.

B. The Course of Proceedings Here

In this case, the course of proceedings gave Alexander

fair notice that she was being sued in her individual capacity.

First, Powell's complaint and amended complaint contained a prayer

for punitive damages. The prayer for punitive damages could only

be brought against defendant governmental officials who were sued

in their individual capacities. Claims for punitive damages are

not available against a municipality, such as the City of

Pittsfield, under § 1983. City of Newport v. Fact Concerts, Inc.,

453 U.S. 247, 259-60 (1981). Because bringing suit against a

governmental official in his or her official capacity is tantamount

to bringing "suit against the official's office," Will v. Mich.

Dep't of State Police, 491 U.S. 58, 71 (1989), it follows that

punitive damages are not available against governmental officials

sued in their official capacities. See Biggs, 66 F.3d at 61.

Recognizing these legal principles, Alexander filed a joint answer

on behalf of all the defendants named in Powell's complaint,

raising, among other affirmative defenses, a qualified immunity

defense. "[T]he assertion of that defense indicates that the

defendant interpreted the plaintiff's action as being against [her]

personally." Biggs, 66 F.3d at 61.

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Alexander argues that both Powell's claim for punitive

damages and her assertion of a qualified immunity defense were

merely perfunctory pleadings and should not be taken as notice of

the capacity in which she was sued. Yet "the assertion of

qualified immunity provides some indication" that Alexander is "not

prejudiced by our treating [the] complaint as one brought against

[her] in [her] personal capacit[y]." Id. (according less weight to

raising of qualified immunity defense where defendants also raised

sovereign immunity).

Alexander also argues that subsequent indications of the

capacity in which she was sued came too late in the litigation to

provide her with adequate notice. For example, the magistrate

judge's conclusion that Alexander was being sued in her individual

capacity emerged only in a report and recommendation regarding

summary judgment, more than three years after the litigation's

inception. See Powell v. City of Pittsfield, 143 F. Supp. 2d 94,

115 (D. Mass. 2001) (adopting magistrate judge's report and

recommendation discussing availability of suit against defendants

in their individual capacity under various statutes). However, the

relevant time frame of the course of proceedings varies for each

individual case and may include events occurring after the initial

pleadings. See, e.g., Moore, 272 F.3d at 774 ("Subsequent filings

in a case," including responses to motions to dismiss for failure

to state a claim or to motions for summary judgment, "may rectify

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deficiencies in the initial pleadings."); Houston v. Reich, 932

F.2d 883, 885 (10th Cir. 1991) ("pleadings, pre-trial order, and

[jury] instructions ma[d]e it clear" that defendants were being

sued in both official and individual capacities). Here, Alexander

reiterated her early assertion of qualified immunity as an

affirmative defense in her individual motion for summary judgment.

Alexander makes much of the fact that Powell's complaint

identified her as "a natural person who at all times

pertinent . . . was the City Solicitor for the defendant City of

Pittsfield," that is, as a municipal governmental official. She

asserts that this language strongly suggests Powell intended to sue

her solely in her official capacity. However, "under § 1983, a

plaintiff may sue a [governmental] officer in [her] individual

capacity for alleged wrongs committed by the officer in [her]

official capacity." Price v. Akaka, 928 F.2d 824, 828 (9th Cir.

1990). It simply "does not follow that every time a public

official acts under color of state law, the suit must of necessity

be one against the official in his or her official capacity." Melo

v. Hafer, 912 F.2d 628, 636 (3d Cir. 1990), aff'd, 502 U.S. 21

(1991).

Powell points out that he did not seek to establish that

Alexander "acted in accordance with a governmental policy or

custom," Biggs, 66 F.3d at 61, as would be expected in an official-

capacity suit. See Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th

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Cir. 1988) (noting plaintiff's failure to "assert that the

defendants followed a policy or custom" of the city as required in

official-capacity suit). Powell thus argues that he gave no

indication here that he was suing Alexander in her official

capacity, much less solely in that capacity. Of course, Powell was

free to sue Alexander in either or both of her official and

personal capacities. Thus, the central inquiry remains whether the

course of proceedings here gave Alexander fair notice of an

individual-capacity suit, regardless of the presence or absence of

allegations supporting an official-capacity suit.

Viewed as a whole, the course of proceedings in this case

gave Alexander fair notice that she was being sued in her

individual capacity and was subject to personal liability for

punitive damages.

IV.

Powell moves for reasonable attorney's fees and costs of

appeal pursuant to 42 U.S.C. § 1988. Recognizing that the

availability of such an award is intended to compensate prevailing

plaintiffs for the time and expense required to vindicate their

federally protected civil rights, see Aubin v. Fudala, 821 F.2d 45,

47 (1st Cir. 1987); Coalition for Basic Human Needs v. King, 691

F.2d 597, 602-03 (1st Cir. 1982), we grant Powell's motion and

remand to the district court for a determination of the appropriate

amount of attorney's fees and costs. See Aubin, 821 F.2d at 48

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(remanding for award of attorney's fees and costs incurred on

appeal); Souza v. Southworth, 564 F.2d 609, 613 (1st Cir. 1977)

(award of attorney's fees for appellate work involves "factual

findings more appropriately made by a district court" than by court

of appeals).

Powell also moves for an additional or alternative award

of "just damages and single or double costs" pursuant to Federal

Rule of Appellate Procedure 38 on the ground that Alexander's

appeal was frivolous. Although we affirm the district court's

award of punitive damages and decline Alexander's invitation to

adopt a "per se" approach to the issue of pleading the capacity in

which a governmental official is sued, this appeal was not

frivolous. Establishing that a trial court's factual findings are

clearly erroneous may be "a steep uphill climb," Fed. Refinance

Co., 352 F.3d at 27, but it is not an impossible feat. Moreover,

Alexander was entitled to de novo review on the ultimate question

of whether she had the requisite state of mind to support an award

of punitive damages. Finally, Alexander's reliance on Eighth

Circuit precedent as persuasive authority supporting her argument

for a "per se" rule on capacity, an issue of first impression in

this circuit, was plausible. Finding that Alexander's appeal was

neither "perfunctory" nor wasteful of judicial resources, see

Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 74 (1st Cir. 1984), we

deny Powell's Rule 38 motion.

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Affirmed. Remanded for an award of reasonable attorney's

fees and costs of appeal pursuant to 42 U.S.C. § 1988.

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