Christopher Payne v. Fred Britten

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-3872

___________________________

Christopher M. Payne

lllllllllllllllllllll Plaintiff - Appellee

v.

Fred Britten; Christopher Connelly; Michelle Hillman; Lee Tinkler; Benny

Noordhoek; Carina McRoberts; Jennifer Kunzman

lllllllllllllllllllll Defendants - Appellants

Jerry Bell; Mailroom Person 1; Mailroom Person 2

lllllllllllllllllllll Defendants

____________

Appeal from United States District Court

for the District of Nebraska - Lincoln

____________

Submitted: June 26, 2013

Filed: April 16, 2014

____________

Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.

____________

MELLOY, Circuit Judge.

Christopher Payne is an inmate at Nebraska's Tecumseh State Correctional

Institution (the prison). Prison officials censored and confiscated Payne's incoming

and outgoing mail. Payne filed a lawsuit asserting various claims, including 42 U.S.C.

§ 1983 claims alleging violations of the First and Fourteenth Amendments. Payne

named several of the prison officials as defendants, asserting that they wrongfully

censored and confiscated his mail.

The officials moved for dismissal on the pleadings pursuant to Federal Rule of

Civil Procedure 12(b)(6), asserting qualified immunity. The district court did not rule

on the motion but converted it to a motion for summary judgment. The officials

reasserted qualified immunity. The district court granted summary judgment to the

officials in part on a limited issue, but otherwise denied summary judgment and again

declined to rule on qualified immunity. Finally, the officials filed a motion for

reconsideration seeking a ruling on qualified immunity. The district court denied the

motion for reconsideration. The officials appeal.

We affirm in part, reverse in part, and remand. When an official properly and

timely files a motion for dismissal or for summary judgment asserting qualified

immunity, the official is entitled to a ruling on the issue of qualified immunity. As

such, the district court must issue a reviewable ruling—either granting or denying

qualified immunity—before requiring the officials to progress further in litigation at

the district court.

I. Background

A. Facts

Payne is serving sentences for two convictions of first-degree sexual assault of

a child. See Neb. Rev. Stat. § 28-319.01. Between October 13, 2010, and March 23,

2011, prison officials reviewed and held correspondence mailed by and to Payne.

According to the officials, the censored correspondence was pedophilia-related and

included efforts by Payne to obtain sexually related stories, pictures, and information

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about children, including information about Payne's prior victims. Also according to

the officials, some of the correspondence indicated Payne was attempting to share

such materials and run a business (from inside the prison) selling such materials to

others both inside and outside the prison. The officials assert that some

correspondence suggested Payne was attempting to contact his prior victims. The

officials explain that a March 23, 2011 letter mailed to Payne contained: potential

contact information for some of Payne's victims; a reference to "BL" (which the

officials interpret as meaning "boy love"); an explanation that "the reason we can't

find a good address for [victim's name1] is that he is a kid"; and "possible addresses"

for a certain individual with notes that two of the addresses were associated with

someone sharing the individual's name but who were "too old."

The officials confiscated the mail and alerted the FBI, which ultimately decided

not to open a criminal investigation. Payne disputes the officials' classification of his

mail as pedophilia-related and disputes assertions regarding the contents of his mail.

Prison officials continue to hold the confiscated mail, and, other than the March 23,

2011 letter, such mail has not been made available for the courts' review.

B. Procedural History

On February 11, 2011, Payne filed his § 1983 complaint in the District of

Nebraska against several of the officials. On September 26, 2011, the officials moved

to dismiss the individual capacity claims on the pleadings under Federal Rule of Civil

Procedure 12(b)(6) because the officials "are immune from suit pursuant to the

doctrine of qualified immunity." The district court did not rule on the motion to

dismiss. Rather, on March 8, 2012, the district court issued an order instructing the

officials to supplement the record with evidence supporting their claims for qualified

1

To protect Payne's victims, we do not include identifying information in this

opinion.

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immunity. In a May 15, 2012 order, the district court stated "it is now apparent that

the court must consider matters outside of the pleadings to resolve this matter." The

district court stated that it would treat the pending motions for dismissal as motions

for summary judgment and provided the parties with an opportunity to submit

additional evidence. The district court specifically directed the officials "to file, under

seal, a copy of the March 23, 2011, letter."

In response to the district court's conversion of their dismissal motion into a

summary judgment motion, the officials again invoked qualified immunity. At the

same time, the officials complied with the district court's order and filed under seal a

copy of the March 23, 2011 letter. They also submitted a memorandum explaining

certain names and terms used in the letter. On September 19, 2012, the district court

granted summary judgment to the officials on the "First and Fourth Amendment

claims relating to the censoring and monitoring of [Payne's] mail as part of a criminal

investigation." The district court denied the motion for summary judgment in all other

respects, stating, "questions of fact remain regarding the content of [Payne's] incoming

and outgoing mail and the reasonableness of the [officials'] continued detention of that

mail." The district court identified the surviving claims as "claims regarding the

continued detention of [Payne's] mail after [the FBI] declined to initiate a criminal

investigation." The district court's order did not decide whether the officials were

entitled to qualified immunity or assess whether any alleged violations were of clearly

established federal law.

The officials then filed a "Motion for Reconsideration and Determination of

Qualified Immunity." The district court denied the motion without ruling on qualified

immunity. The officials filed this interlocutory appeal.

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II. Discussion

Ordinarily, our court lacks jurisdiction to review denials of motions to dismiss

and motions for summary judgment because neither is a final decision. See, e.g.,

Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 41–42 (1995). When a denial turns

on qualified immunity, however, our court has appellate jurisdiction to decide

whether, as a purely legal matter, the denial was erroneous. See, e.g., Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). Our court has jurisdiction over such interlocutory

appeals because "[q]ualified immunity is 'an immunity from suit rather than a mere

defense to liability; and like an absolute immunity, it is effectively lost if a case is

erroneously permitted to go to trial.'" Scott v. Harris, 550 U.S. 372, 376 n.2 (2007)

(quoting Mitchell, 472 U.S. at 526).

"Like denials of qualified immunity, a refusal to rule on qualified immunity is

effectively unreviewable on appeal because once the defendant has had to proceed to

trial, he or she has lost the benefit of qualified immunity, that is, the entitlement to be

free from suit." Parton v. Ashcroft, 16 F.3d 226, 228 (8th Cir. 1994) (exercising

jurisdiction and remanding "for a ruling on the issue of qualified immunity"). The

potentially lost benefits of qualified immunity include the costs and expenses of

litigation, and discovery in particular, which is a type of burden distinct from appeals

and other lawyer-driven aspects of a case. Other lost benefits include the lost

opportunity to appeal to our court and, ultimately, to petition the Supreme Court for

certiorari. For this reason, both the Supreme Court and our court "repeatedly have

stressed the importance of resolving [qualified] immunity questions at the earliest

possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam);

O'Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir. 2007).

Our court, therefore, has jurisdiction over interlocutory appeals arising not only

from a district court's reasoned denial of qualified immunity, but also from a district

court's failure or refusal to rule on qualified immunity. In the latter instance, however,

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our court only exercises its jurisdiction to compel the district court to decide the

qualified immunity question. See, e.g., Robinson v. Mericle, 56 F.3d 946, 947 (8th

Cir. 1995) (per curiam) (remanding "to the district court with directions to decide the

issue of qualified immunity"); Craft v. Wipf, 810 F.2d 170, 173 (8th Cir. 1987) (per

curiam) (finding appellate jurisdiction for the limited purpose of remanding for a

ruling on qualified immunity). In Craft, for example, the district court "simply did not

rule on the qualified immunity issue," effectively depriving the defendant of qualified

immunity. Id. at 173. Citing the Fifth Circuit's holding in Helton v. Clements, 787

F.2d 1016 (5th Cir. 1986) (per curiam), that "an order which declines or refuses to rule

on . . . a claim of immunity 'is an appealable "final decision" within the meaning of

28 U.S.C. § 1291 notwithstanding the absence of a final judgment,'" id. at 1017

(quoting Mitchell, 472 U.S. at 530), our court "took jurisdiction of the appeal" for the

limited purpose of remanding "to the District Court for a ruling on the qualified

immunity issue," Craft, 810 F.2d at 173.

Because the district court in the present case did not decide whether the officials

are immune from Payne's suit, we have jurisdiction to order a remand. Exercising that

jurisdiction, we now, as we must, remand the case for the district court to conduct the

proper analysis. See, e.g., Craft, 810 F.2d at 173. It is "certain, and the case law is

clear, that [the officials] are entitled to a thorough determination of their claim[s] of

qualified immunity if that immunity is to mean anything at all." O'Neil, 496 F.3d at

918.

We write further because, although we are compelled to remand, we are

sympathetic with the district court in this case and understand clearly why the district

court followed the seemingly reasonable, but impermissible, path that it chose. The

prison officials are legally entitled to a ruling on their assertions of qualified

immunity. In the present case, as with many cases, however, such a ruling would

appear to be at the expense of efficiently getting to the heart of the material issue in

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the case. Here, that issue clearly involves a simple fact question: what is in the

withheld mail (much of which is mail that only the officials have seen)?

In this regard, the contents of the withheld mail appear to be contested.2 As we

understand the core legal issues surrounding the allegations in this case, any analysis

of the merits of the qualified immunity defense will require the district court to assess

whether the regulation or policy at issue under which the mail is being held is valid

and neutral and whether it addresses a legitimate penological concern. See Murphy

v. Mo. Dep't of Corr., 372 F.3d 979, 985–86 (8th Cir. 2004). A qualified immunity

analysis will then require the district court to conduct an independent review of the

evidence to determine if the officials have demonstrated an exaggerated response to

those penological concerns in relation to a particular item of mail that has been

confiscated. Id. See also Williams v. Brimeyer, 116 F.3d 351, 354 (8th Cir. 1997)

(stating that the court must conduct "'an independent review of the evidence'" to

determine if the prison officials response to prison concerns was "'exaggerated'"

(quoting Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990))); Kaden v.

Slykhuis, 651 F.3d 966, 969 (8th Cir. 2011) (per curiam) ("[I]f a valid prison

regulation is applied to particular mail items in such a way as to negate the legitimate

penological interest, the regulation may be unconstitutional as applied to those items.

. . . On appeal, we must independently review the evidence to determine whether [the]

decision to apply the regulation and withhold [the particular mail items] was an

exaggerated response to prison concerns and therefore unconstitutional as applied.")

(internal citations and quotation marks omitted). In the absence of such evidence, the

district court is bound to take the plaintiff's allegations as true and presume that the

mail does not, in fact, contain material that runs afoul of any neutral and valid

restrictions. As such, it would seem that if the content of the mail is contested, the

district court cannot grant qualified immunity to the officials in this case without first

reviewing the withheld mail.

2

And perhaps not frivolously given the FBI's election not to pursue the matter.

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Simply put, the district court appears to have correctly determined that this is

a case where, ultimately and eventually, the documents will matter for the qualified

immunity analysis. Nevertheless, the district court may not force public officials into

subsequent stages of district court litigation without first ruling on a properly

presented motion to dismiss asserting the defense of qualified immunity. Courts may

ask only whether the facts as alleged plausibly state a claim and whether that claim

asserts a violation of a clearly established right. Kaden, 651 F.3d at 969 ("At this

extremely early stage of the litigation, there is a reasonable inference that [the

prison]'s policy was unconstitutionally applied to the censored publication." (citing

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged."))).

In summary, all parties at all times are entitled to their appropriate share of

process. The defendants in this case, like any public officials, are entitled to a

reasoned denial or grant of their claim of qualified immunity at the motion to dismiss

stage, the summary judgment stage, and any other permissible stage at which a proper

motion is filed. By following the path described herein, courts will ensure in all cases

that public officials receive this process.

III. Conclusion

We reverse the district court's order converting the officials' motion to dismiss

into a motion for summary judgment; vacate the district court's partial denial of the

officials' motion for summary judgment; and remand with instructions for the district

court to decide, consistent with this opinion, whether the officials are entitled to

qualified immunity on the pleadings under Rule 12(b)(6).

__________________________

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RILEY, Chief Judge, concurring in part and dissenting in part.

Because the district court had a responsibility to provide the officials with a

prompt and thorough individualized determination of their right to qualified

immunity, see, e.g., Stanton v. Sims, 571 U.S. ___, ___, 134 S. Ct. 3, 4-5 (2013) (per

curiam), I concur in the background section of the court’s opinion (Part I) and the

well-reasoned first four paragraphs of the court’s discussion section (Part II). See ante

at 2-6.

Reading the rest of the majority’s opinion, it is unclear to me what “part” of the

district court’s rulings the majority purports to “affirm,” ante at 2, given that the

majority’s conclusion makes no mention of an affirmance, ante at 8. I would reverse

the district court’s sua sponte conversion of the officials’ motion to dismiss into a

motion for summary judgment; vacate the district court’s denial of the officials’

motion for summary judgment; and remand with instructions to decide whether the

officials are entitled to qualified immunity, first on the pleadings under Federal Rule

of Civil Procedure 12(b)(6) and, if not, then on the record under Federal Rule of Civil

Procedure 56(a). To the extent the majority’s vague judgment deviates from this

course, I respectfully dissent.

A. Jurisdiction

I think it important to begin by emphasizing our precedent that our court’s

“jurisdiction to review the qualified immunity issue on interlocutory appeal depends

upon whether the district court actually ruled on the issue.” Bradford v. Huckabee

(Bradford I), 330 F.3d 1038, 1040 (8th Cir. 2003) (emphasis added). A casual reader

might think this statement means we lack jurisdiction unless the district court makes

a merits determination as to qualified immunity, but that reading is foreclosed by

Bradford I itself: we exercised jurisdiction to “remand to the district court for such a

determination,” 330 F.3d at 1041 (emphasis added). The Bradford I opinion’s

reference to “jurisdiction to hear th[e] appeal,” id. (emphasis added), merely meant

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our court would not reach the merits of a qualified immunity question in a case where

the district court, whether intentionally or through neglect, failed to answer the

question (i.e., “actually ruled”). As the court’s opinion explains, ante at 5-6, we have

long exercised our interlocutory jurisdiction to order district courts to issue the

necessary qualified immunity rulings when they fail to do so. See, e.g., Robinson v.

Mericle, 56 F.3d 946, 947 (8th Cir. 1995); Parton v. Ashcroft, 16 F.3d 226, 228 (8th

Cir. 1994); Craft v. Wipf, 810 F.2d 170 (8th Cir. 1987) (per curiam).

Most circuits follow our approach. See, e.g., Wallin v. Norman, 317 F.3d 558,

563 (6th Cir. 2003) (“[T]he district court’s refusal to address the merits of the

defendants’ motion based on qualified immunity was a conclusive determination for

the purpose of allowing an interlocutory appeal.”); Lowe v. Town of Fairland, Okla.,

143 F.3d 1378, 1380 (10th Cir. 1998) (same); Jenkins v. Medford, 119 F.3d 1156,

1159 (4th Cir. 1997) (same); Collins v. Sch. Bd. of Dade Cnty., Fla., 981 F.2d 1203,

1205 (11th Cir. 1993) (same); Zayas-Green v. Casaine, 906 F.2d 18, 23 (1st Cir. 1990)

(same); Smith v. Reagan, 841 F.2d 28, 31 (2d Cir. 1988) (same); Helton v. Clements,

787 F.2d 1016, 1017 (5th Cir. 1986) (per curiam) (same). It appears only the Ninth

Circuit disagrees on the jurisdictional question. See, e.g., Miller v. Gammie, 335 F.3d

889, 894-95 (9th Cir. 2003) (en banc) (holding that “[d]istrict court orders deferring

a ruling on immunity for a limited time to ascertain what relevant functions were

performed generally are not appealable”). But the Ninth Circuit achieves essentially

the same result by treating a notice of appeal from a district court’s failure to decide

qualified immunity as a petition for writ of mandamus to compel the district court to

decide the question. See id. As our court—now joined by a majority of circuits—has

recognized since at least 1989, see Craft, 810 F.2d at 173, the Ninth Circuit’s

approach is unnecessarily formalistic.

B. This Case

District courts have an obligation to “resolv[e] [qualified] immunity questions

at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227

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(1991) (per curiam) (emphasis added). In Payne’s case, the earliest possible stage was

the officials’ motion to dismiss for failure to state a claim upon which relief could be

granted. The officials appropriately based their motion on qualified immunity,

invoking their entitlement to be free of the burden of further litigating Payne’s claims.

To rule on that motion, “[t]he district court needed to first determine whether the

complaint alleged enough facts to demonstrate the violation of a clearly established

statutory or constitutional right.” Bradford I, 330 F.3d at 1040 (emphasis added).

Instead of making that determination and ruling on the motion by either granting or

denying qualified immunity at the pleading stage, the district court refused the

officials the decision—one way or the other—to which they were entitled.

On its own motion, the district court directed the officials to “supplement the

record with properly authenticated evidence to show that they were censoring and

confiscating [Payne’s] mail in accordance with a legitimate criminal investigation.”

That sua sponte order was an abuse of discretion. The officials had a right to a

qualified immunity ruling on the pleadings. See, e.g., id. To vindicate their right to

such a ruling, the officials had no obligation to submit any “properly authenticated

evidence.” On the contrary, qualified immunity provides “an entitlement not to . . .

face [such] burdens of litigation, conditioned on the resolution of the essentially legal

question whether the conduct of which the plaintiff complains violated clearly

established law.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). This entitlement

is so important that it may be asserted, appealed, reasserted, and again appealed at

multiple stages in the same case. See Behrens v. Pelletier, 516 U.S. 299, 307 (1996).

As Behrens makes clear, by refusing to decide whether Payne’s “complaint

alleged enough facts to demonstrate the violation of a clearly established statutory or

constitutional right,” Bradford I, 330 F.3d at 1040, the district court deprived the

officials of two definite opportunities and a third possible opportunity to avoid the

cost and inconvenience of producing evidence. First, a decision by the district court

on the pleadings that the officials were entitled to qualified immunity would obviously

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have freed the officials from the burden of ongoing litigation. Second, if the district

court decided the officials were not entitled to qualified immunity, the officials could

have immediately appealed that denial to our court. See Behrens, 516 U.S. at 307.

This second opportunity to challenge the sufficiency of the plaintiff’s pleadings

frequently proves decisive. See, e.g., Bradford v. Huckabee (Bradford II), 394 F.3d

1012, 1016 (8th Cir. 2005) (reversing a pleading stage denial of qualified immunity

on appeal after the Bradford I remand). Third, if our court decided the officials were

not entitled to qualified immunity, the officials could have petitioned the Supreme

Court for a writ of certiorari—an unlikely but possible path to qualified immunity at

the pleading stage.3 See, e.g., Ashcroft v. al-Kidd, 563 U.S. ___, ___, 131 S. Ct. 2074,

2080 (2011) (“correct[ing]” the Ninth Circuit’s “analysis at both steps of the qualified-

immunity inquiry” on an interlocutory appeal from a district court’s denial of a motion

to dismiss based on qualified immunity).

The district court also abused its discretion by sua sponte converting the

officials’ motion to dismiss into a motion for summary judgment without deciding

whether Payne’s complaint sufficiently alleged any violation of a clearly established

right. It is true Rule 12(d) requires district courts to treat Rule 12(b)(6) motions as

summary judgment motions under Rule 56 “[i]f, on a motion under Rule 12(b)(6)[,]

. . . matters outside the pleadings are presented to and not excluded by the court.”

Fed. R. Civ. P. 12(d). But the only “matters outside of the pleadings” in Payne’s

record were two documents the district court sua sponte compelled the officials to

3

Appealing a case does entail a litigation burden, but in advance of any

obligation to submit evidence, that burden primarily falls on the lawyers whose job

it is to handle such cases. By contrast, requiring defendant officials to submit

evidence burdens the officials themselves: they often must find documents, answer

interrogatories, undergo depositions, and prepare affidavits. The doctrine of qualified

immunity ensures that corrections officials and police officers are not pulled off their

rounds and beats to respond to lawsuits until a plaintiff sufficiently pleads a clearly

established violation.

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provide. The officials did not present any document to the court on their Rule

12(b)(6) motion.

The district court summarily declared “questions of fact remain regarding the

content of [Payne’s] incoming and outgoing mail and the reasonableness of the

[officials’] continued detention of that mail.” Were these questions genuinely

disputed? See Fed. R. Civ. P. 56(a). Were these facts “material”? Id. The district

court did not answer these relevant questions. Instead, the district court explained

“[t]he record before the court does not contain copies of the letters held from October

13, 2010, to November 16, 2010.” On that basis alone, the district court denied

summary judgment, without resolving qualified immunity.

The officials again moved “for a determination of their claim of qualified

immunity.” (Emphasis added). The officials argued they should be “immune from

further burdens of litigation absent a determination of their defense of qualified

immunity based on . . . clearly established law.” The officials were right. See, e.g.,

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“[T]he ‘driving force’ behind creation

of the qualified immunity doctrine was a desire to ensure that ‘“insubstantial claims”

against government officials [will] be resolved prior to discovery.’” (second alteration

in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987))).

C. Judicial Economy

Although the district court’s obligation to rule on qualified immunity is beyond

debate, the majority does not content itself with following this law. Instead, the

majority deems it appropriate to “write further.” Ante at 6. The majority implies that

following the law and remanding for the necessary rulings in this case will waste

judicial resources. The majority—after recognizing that our court should not address

the merits—speculates that a denial of qualified immunity on the merits is inevitable.

I cannot join these gratuitous portions of the majority’s opinion.

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Even if the majority were right that following the correct procedure will “be at

the expense of efficiently getting to the heart of the material issue,” ante at 6, any

dissipation of judicial resources stems not from our court’s following the law but from

the district court’s failure to do so. Had the district court issued a reasoned denial of

qualified immunity, our court could have resolved this case on the merits. Instead, the

“efficient” course of action has resulted in remarkable inefficiency. In the “efficient”

legal world, judges lead investigations, demand evidence, and issue orders untethered

to the parties’ pleadings. This “efficient” legal world does exist in continental Europe

and elsewhere on our planet. But it is foreign to our Anglo-American legal system,

and (at least in cases involving governmental parties) it is prohibited by our

Constitution’s federalism and separation of powers and our adherence to the rule of

law. I strongly disagree with the majority’s implication that procedural rules, e.g.,

Fed. R. Civ. P. 12(b)(6), and legal principles, e.g., Pearson, 555 U.S. at 231, are not

worth following whenever they might appear inexpedient. Even if producing the

withheld mail would quickly end the case, the officials’ choice to seek a qualified

immunity determination on the pleadings must be respected, and the law must be

followed.

In any event, I am far from convinced the officials’ request for a qualified

immunity ruling on the pleadings is as futile as the majority predicts. The equitable

question whether Payne should receive his mail may very well require the district

court to review the mail, but the legal question whether Payne is entitled to damages

may not. Neither Payne, nor the district court, nor the majority cite a single case

giving the officials “fair and clear warning” that withholding the mail at issue violated

the Constitution. United States v. Lanier, 520 U.S. 259, 271 (1997). My search of

case law from the Supreme Court and the federal circuit courts disclosed none.

What I found instead were numerous cases tending to support the officials’

position. See, e.g., Bell v. Wolfish, 441 U.S. 520, 547 (1979) (granting prison

officials “wide-ranging deference in the adoption and execution of policies and

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practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security”); Ahlers v. Rabinowitz, 684 F.3d 53, 65 (2d Cir.

2012) (“Because of the state’s interest in treating [an inmate’s] sexual deviance, [state

officials] had a justification for an embargo on” “images of children in bathing

suits.”); Wishnatsky v. Schuetzle, 141 F.3d 1172 (8th Cir. 1998) (unpublished per

curiam) (upholding ban on mail containing images of fetuses); Dawson v. Scurr, 986

F.2d 257, 259 (8th Cir. 1993) (upholding prison regulations banning publications

portraying “child sex acts” and limiting access to publications involving certain adult

sex acts); Bullock v. McGinnis, 14 F.3d 604, 1993 WL 533325, at *4 (7th Cir. Dec.

21, 1993) (unpublished table decision) (upholding prison officials’ decision to censor

“mail that contained a photograph of an adult female partially exposing her genitalia

to two clothed young children and two letters that referred to the photograph”); Harper

v. Wallingford, 877 F.2d 728, 733 (9th Cir. 1989) (upholding ban on mail from the

“North American Man/Boy Love Association”).

Our circuit has even upheld a blanket ban on prisoners’ “receiv[ing] through the

mail secondary religious materials” and “send[ing] out commercially prepared

greeting cards.” Jones v. Banks, 51 F. App’x 608, 609 (8th Cir. 2002) (unpublished

per curiam). In child sexual assault cases, other circuits have gone even further—for

example, upholding blanket bans on internet use post-release for defendants who, like

Payne, found victims online. See, e.g., United States v. Paul, 274 F.3d 155, 169 (5th

Cir. 2001); United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999). It is

difficult to imagine how a reasonable prison official reviewing such cases could

expect this case’s lesser restrictions on prisoner communication to ever give rise to

civil damages. The best that could be said for Payne is that the case law does not

specifically address claims of the precise sort he raises because no court has ever

addressed the particular circumstances of this case. But that would still leave the

officials entitled to qualified immunity.

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D. Qualified Immunity Principles

Like the majority, I am “sympathetic with the district court in this case,” ante

at 6, but for very different reasons. I am sympathetic to the difficult task any district

court confronts trying to apply the complex doctrine of qualified immunity in the face

of opinions which demand a ruling, see ante at 5-6, without providing any guidance

on how to reach a correct ruling. Rather than discussing the “efficiency” of not

following the law, the court’s opinion should clarify how to apply this law. Having

prepared some thoughts in the hope of assisting with the qualified immunity analysis,

I offer the following.

A determination of the qualified immunity question at a particular stage in the

proceedings does not necessarily mean a grant of immunity: often, the determination

entails a reasoned denial of immunity. But without a thorough qualified immunity

analysis by the district court—either granting or denying immunity—“we cannot

fulfill our function of review.” Robbins v. Becker, 715 F.3d 691, 694 n.2 (8th Cir.

2013) (internal quotation omitted). Exercising our court’s “well-established . . .

supervisory authority over lower courts,” Starr v. Mandanici, 152 F.3d 741, 750 (8th

Cir. 1998), we must ensure district courts make “findings of fact and conclusions of

law, similar by analogy to Fed. R. Civ. P. 52(a)(2) (addressing ‘an interlocutory

injunction’), sufficient to permit our court (1) to determine what facts the district court

assumed, in the light most favorable to the nonmoving party, and (2) to evaluate the

district court’s individualized legal analysis.” Robbins, 715 F.3d at 694.

Qualified immunity requires district courts to answer two questions. Question

one: did each individual defendant official violate a constitutional or statutory right?

See, e.g., LaCross v. City of Duluth, 713 F.3d 1155, 1158 (8th Cir. 2013). Question

two: was the right clearly established when the violation occurred? See, e.g., id. A

district court may answer either question first. See Pearson, 555 U.S. at 236. For

example, a district court could begin and end with the first question, granting qualified

immunity because there was no constitutional violation. See, e.g., Burke v. Sullivan,

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No. 4:10CV588 CDP, 2011 WL 3235761 (E.D. Mo. July 27, 2011), aff’d 677 F.3d

367, 373 (8th Cir. 2012) (affirming the “well-reasoned opinion and judgment of the

district court”). Or a district court could begin and end with the second question,

granting qualified immunity because, even if the defendant’s conduct violated a

constitutional right, the right was not clearly established. See, e.g., Sisney v. Reisch,

674 F.3d 839, 844, 847 (8th Cir. 2012) (affirming a district court’s grant of qualified

immunity which “did not expressly examine the first prong,” but “[i]nstead . . .

focused on the second prong”). What a district court cannot do is deny qualified

immunity without resolving both questions in the plaintiff’s favor. See, e.g., Stanton,

571 U.S. at ___ - ___, ___, 134 S. Ct. at 4-5, 7; Krout v. Goemmer, 583 F.3d 557, 564

(8th Cir. 2009). Neither is a district court permitted to decline to answer either

question. See, e.g., Hunter, 502 U.S. at 227; O’Neil v. City of Iowa City, Iowa, 496

F.3d 915, 918 (8th Cir. 2007).

At the pleading stage, these principles mean an individual defendant official is

entitled to qualified immunity “unless [the] plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Al-Kidd, 563 U.S. at ___, 131 S.

Ct. at 2080 (emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). At the summary judgment stage, a defendant is entitled to qualified

immunity unless “(1) the facts, viewed in the light most favorable to the plaintiff,

demonstrate the deprivation of a constitutional or statutory right; and (2) the right was

clearly established at the time of the deprivation.” Howard v. Kan. City Police Dep’t,

570 F.3d 984, 988 (8th Cir. 2009). At the trial stage, a defendant is entitled to

qualified immunity unless (1) the jury reasonably finds facts establishing that the

defendant violated a constitutional or statutory right, and (2) the right was clearly

established at the time the violation occurred. See, e.g., Luckert v. Dodge Cnty., 684

F.3d 808, 817 (8th Cir. 2012).

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The first question develops from stage to stage: it evolves from a construction

of the pleadings, to a review of the record in the light most favorable to the plaintiff,

to a deferential consideration of facts found by a jury. The second question does not

change: the question is always whether the right was clearly established. “For a right

to be deemed clearly established, the ‘contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.’”

Buckley v. Rogerson, 133 F.3d 1125, 1128 (8th Cir. 1998) (quoting Anderson, 483

U.S. at 640). “‘We do not require a case directly on point’ before concluding that the

law is clearly established, ‘but existing precedent must have placed the statutory or

constitutional question beyond debate.’” Stanton, 571 U.S. at ___, 134 S. Ct. at 5

(emphasis added) (quoting al-Kidd, 563 U.S. at ___, 131 S. Ct. at 2083).

To meet their burden to show the right at issue was clearly established,

“plaintiffs [must] point either to ‘cases of controlling authority in their jurisdiction at

the time of the incident’ or to ‘a consensus of cases of persuasive authority such that

a reasonable officer could not have believed that his actions were lawful.’” Al-Kidd,

563 U.S. at ___, 131 S. Ct. at 2086 (Kennedy, J., concurring) (quoting Wilson v.

Layne, 526 U.S. 603, 617 (1999)). Without one or the other, qualified immunity

applies—regardless of whether there is a factual dispute about what

occurred—because the defendant did not have “fair and clear warning” that his

conduct was unlawful. Lanier, 520 U.S. at 271. This is true “whether or not the

constitutional [or statutory] rule applied by the [district] court [i]s correct,” because

qualified immunity applies unless the rule is “beyond debate.” Stanton, 571 U.S. at

___, 134 S. Ct. at 8 (internal quotation omitted).

E. Conclusion

I respectfully dissent from whatever the majority affirms. I concur in the

majority opinion’s Part I and first four paragraphs of Part II, also concurring in the

reversal, vacation, and remand.

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