# David Saxner and Alfred Cain, Jr., Cross-Appellants v. Charles Benson, Cross-Appellees > Court of Appeals for the Seventh Circuit · February 13, 1984 · 727 F.2d 669 URL: https://www.frixlaw.com/law-library/cases/9471773 ## Case - **Full name:** David SAXNER and Alfred Cain, Jr., Plaintiffs-Appellees, Cross-Appellants, v. Charles BENSON, Et Al., Defendants-Appellants, Cross-Appellees - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** February 13, 1984 - **Citations:** 727 F.2d 669; 1984 U.S. App. LEXIS 25514 - **Precedential status:** Published - **Opinion:** Concurrence by Cudahy - **Judges:** Celebrezze, Cudahy, Wood - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9471773 ## How later opinions describe it (automated extraction) - finding defendants not sued in official capacities where “[i]n addition to the absence of any allegation that the defendants were acting in their official capacities, it is specifically alleged . . . [in the complaint] that ‘All defendants are sued in their individual capaciti… ## Opinion text CUDAHY, Circuit Judge, concurring. I believe that Redding v. Fairman, 111 F.2d 1105 (7th Cir.1983), is entirely sound in its resolution of the issue of absolute immunity for a prison disciplinary committee. I *674 must therefore, in view of the somewhat ambiguous tone of footnote 2 and in light of the dissent, respectfully indicate my support of Redding as an expression of the circuit position. 1 Any effort to analogize a trio of correctional officers conducting disciplinary proceedings in a prison to a “judge” or even to an administrative law judge, see Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), is unwarranted. The activities and procedures of these prison officers are so dissimilar in form and substance from those of judges granted absolute immunity that reliance on an all-encompassing similarity of quasi-judicial function will not wash. As Chief Judge Winter has pointed out, performance of “quasi-judicial” functions does not automatically trigger absolute immunity. Ward v. Johnson, 690 F.2d 1098, 1115 (4th Cir.1982) (Winter, C.J., dissenting). Thus, in Wood v. Strickland, 420 U.S. 308, 320-21 , 95 S.Ct. 992, 1000 , 43 L.Ed.2d 214 (1975), school board members, who were sued for due process violations in disciplinary proceedings, were afforded only qualified immunity. 2 See Ward v. Johnson, 690 F.2d at 1115-16 (Winter, C.J., dissenting). 3 The prison disciplinary proceedings at issue here are certainly much more akin to the school board meeting in Wood than to a hearing conducted by an ALJ under the Administrative Procedure Act. In any event, a comparison of this case with Butz shows how extraordinarily short the case before us falls of the standards prescribed in Butz . Among the characteristics of administrative law proceedings which the Butz court deemed significant were (1) the impartiality of the decision-making process and the reliability of the information developed; (2) the importance of precedent in resolving controversies; (3) the adversary nature of the proceedings; and (4) the availability of review. Butz at 512-13 , 98 S.Ct. at 2913-2914 . The Butz court relied on the Administrative Procedure Act and noted that “federal administrative law requires that agency adjudication contain many of the same safeguards as found in the judicial process....” Id. at 513 , 98 S.Ct. at 2914 . These protections include notice, representation by a lawyer, a verbatim transcript of the proceedings, subpoena power, presentation of oral and documentary evidence, cross-examination of adverse witnesses under oath (limited only by considerations of relevancy and materiality), rebuttal evidence and prehearing discovery. 5 U.S.C. §§ 554-57 . The Act also provides for impo *675 sition of the burden of proof, findings and conclusions presented by the parties and ruled on by the hearing officer and a host of other procedural safeguards. The hearing officer may not also be involved in prosecutorial or investigative duties or be supervised by an employer interested in the case, and is subject to recusal for personal bias. The dissent fails to recognize the importance of these procedural safeguards, which were specifically relied upon by the Butz court and are almost all absent from IDC proceedings. The disciplinary policy of the Bureau of Prisons provides few of the safeguards of the APA. The committee members are prison guards and supervisory employees who are in daily contact with the prisoners upon whom they sit in judgment. The committee members are supervisors and fellow employees of the guards who bring the charges and are in an unequal adversarial relationship with the prisoners. They are the keepers judging the kept rather than impartial adjudicators trained in law and presumably free of bias and prejudice. In addition, the information presented to the committee is frequently hearsay, self-serving and unreliable. See Bracy v. Herringa, 466 F.2d 702 (7th Cir.1972). Of course, the decisions of the committee are not based on precedent since there is no recorded precedent. And review is restricted to agencies of the Bureau of Prisons. To suggest that the committee functions in any real respect like the administrative law judge in Butz is to depart from reality. The suggestion that members of the prison disciplinary committees are entitled to absolute immunity also ignores a major premise of the entire immunity doctrine— that absolute immunity is the rare exception to the rule granting qualified immunity to public officials performing discretionary functions. See Ward v. Johnson, 690 F.2d 1098, 1114 (4th Cir.1982) (Winter, C.J., dissenting). See also Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982) (most executive officials entitled only to qualified immunity); accord Harlow v. Fitzgerald, 457 U.S. 800, 814-15 , 102 S.Ct. 2727, 2736-2737 , 73 L.Ed.2d 396 (1982). Thus in Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975), school board members who were clearly performing quasi-judicial functions (a factor heavily relied upon by the dissent with respect to IDC members) were granted only qualified immunity from damage suits arising out of disciplinary meetings. This circuit, by rejecting the majority position in Ward v. Johnson as not representing the “better view” (see Redding, 717 F.2d at 1117), has clearly decided not to create another exception to the qualified immunity rule. The dissent, by attempting to apply, perhaps mechanistically, the four factor Butz test, loses sight of the overriding concern the Supreme Court expressed in Harlow and Butz , that grants of absolute immunity are appropriate only when the defendant official establishes that public policy so requires. 4 Harlow, 457 U.S. at 808 , 102 S.Ct. at 2734 ; Butz, 438 U.S. at 506 , 98 S.Ct. at 2910-2911 . We said, in evaluating parole board members’ claims to absolute immunity, that it should not be granted “absent compelling reasons.” United States ex rel. Powell v. Irving, 684 F.2d 494, 495 (7th Cir.1982). No such reasons exist, nor have any been argued, for granting absolute immunity to prison disciplinary committees. The dissent does not even attempt to justify absolute immunity here on policy grounds. Instead, it relies on a quite inappropriate functional test and a loose (at best) comparison with the responsibilities of the administrative law judges in Butz . But Harlow made clear that if public policy does not require absolute immunity, an official’s function becomes irrelevant. The dissent makes no effort to explain why public policy requires absolute immunity for adjudicatory disciplinary proceedings in prisons but not in schools. Certainly, education is as *676 vital to our society as punishment. In any event, if public policy does not require absolute immunity for the high ranking presidential aides in Harlow, it does not, by any stretch of the imagination, require absolute immunity for comparatively low ranking prison officials dispensing discipline. It would be poor policy to extend absolute immunity to these defendants. The Supreme Court has recently charted a course which suggests a broadening of the protections of qualified immunity coupled with conferral of new grants of absolute immunity primarily upon defendants occupying a high place on the governmental ladder. Thus, in Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Court made it more difficult for plaintiffs to prevail over a defense of qualified immunity by eliminating any requirement that the defendant show subjective good faith. Cf. Egger v. Phillips, 710 F.2d 292, 323 (7th Cir.1983) (en banc) (Cudahy, J., concurring). This makes it more likely that defendants will prevail on summary judgment, Harlow, 457 U.S. at 816 , 102 S.Ct. at 2738 , thus reducing the burden of, and the possible intimidation resulting from, litigation. And in Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), by extending absolute immunity to the President because of his high office, the Court indicated that the position an official occupies in the federal system may be relevant to the determination of what sort of immunity applies. 5 At least, the governmental rank of the official is relevant to the determination whether public policy requires absolute immunity. Here, of course, we are dealing with comparatively low-level officials whose duties are only quite incidentally “judicial” in any sense. And they are accorded adequate protection against harassment by the enlarged safeguards of qualified immunity as announced in Harlow . Additionally, I note that the Supreme Court, in analyzing the issue of absolute immunity, has relied primarily upon the purposes of the post-Civil War amendments and of the Civil Rights Statutes. Thus, Briscoe v. LaHue, -- U.S. --, 103 S.Ct. 1108 , 75 L.Ed.2d 96 (1983), which confirmed the absolute immunity of police witnesses at trials, was based upon a searching analysis of the state common-law immunity immediately after the Civil War. Congress is presumed to have acted in the context of common law immunities. I doubt that such an inquiry into the purposes of the post-Civil War amendments and statutes, which the dissent does not attempt to undertake, could support absolute immunity for prison disciplinary committees since the 1871 Congress was greatly concerned about the proper functioning of the penal system. I therefore concur fully in the majority opinion except for any possible implication of dissatisfaction with the refusal of this circuit to grant absolute immunity to prison institutional disciplinary committees. . I note that this circuit is not alone in its view that members of the Institutional Disciplinary Committee (“IDC”) of a federal prison are not absolutely immune from damages for constitutional violations. In Sihaad v. O’Brien, 645 F.2d 556 (6th Cir.1981), the court rejected the same claim pressed by the defendants in this case, holding that IDC members are not “in one of ‘those exceptional situations where it is demonstrated that absolute immunity is essential for the conduct of the public business.’ ” Id. at 561 (quoting Butz v. Economou, 438 U.S. 478, 507 , 98 S.Ct. 2894, 2911 , 57 L.Ed.2d 895 (1978)). . The dissent fails to recognize the importance of Wood v. Strickland to the proper resolution of this case. The functions performed by the Wood defendants were every bit as “judicial” as those of the defendants here, yet they received only qualified immunity. The dissent dismisses Wood (without actually naming it) by asserting that the IDC members cannot be compared to school board members. The dissent in this respect apparently discards the functional approach to immunity which it advocates elsewhere and instead apparently relies on the title of the officials and the context within which they operate. As is demonstrated below, quasi-judicial functions are performed by many executive officials, and only in the most extraordinary cases are they absolutely immune from damage liability. Whether an official’s function and position in the government is far enough removed from the school board members in Wood to justify absolute immunity under Butz may be the key question in the case. I suspect that the Supreme Court went as far as it is willing to go with quasi-judicial immunity in Butz itself. . The dissent’s reliance on Ward v. Johnson, 690 F.2d 1098 (4th Cir.1982) is inappropriate since Ward was rejected in this circuit as not representing “the better view.” Redding, 717 F.2d at 1117. In Redding this circuit endorsed the Sixth Circuit’s view that federal disciplinary committee members have only qualified immunity from damage liability. Id. . The dissent, I believe, makes the error of presenting the question as implicating “the need to protect officials who perform judicial or quasi-judicial functions.” Infra at 676-677 (emphasis supplied). The Supreme Court has made it clear that absolute immunity is granted only to protect the public interest and not the interests of the officials involved. . The dissent notes, correctly, that the Supreme Court in Nixon v. Fitzgerald claimed reliance on the “special functions” doctrine. However, no mention is made in Nixon of presidential functions’ necessitating absolute immunity. Instead, the Court relied on the President’s “unique position in the constitutional scheme.” Id., 457 U.S. at 749, 102 S.Ct. at 2702. The dissent also suggests that in evaluating whether public policy requires absolute immunity, we are to look only at the function performed by the official in question. One need look no further than Wood v. Strickland, supra, to conclude that the dissent is incorrect in insisting that public policy uniformly dictates ab *677 solute immunity for those who perform judicial or quasi-judicial functions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471773. Public record. Not legal advice.