# 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/9471774

## 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:** Dissent by Celebrezze
- **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/9471774

## 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

CELEBREZZE, Senior Circuit Judge,
dissenting.
The majority has failed to analyze the immunity issue presented by this case consistent with the Supreme Court’s decision in Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). Respectfully, I dissent.
The Supreme Court in Butz established clearly that in some circumstances executive officials performing judicial or quasi-judicial functions are absolutely immune *677 from liability for any tortious acts. 1 Butz v. Economou, 438 U.S. at 508-17 , 98 S.Ct. at 2911-2912, 2916 (administrative law judge absolutely immune). For an official to demonstrate that he is entitled to absolute immunity for his acts, he must show: that his decisions are functionally comparable 2 to the type of decisions made by a judge, that the controversies which the official resolves are sufficiently intense to spawn harassing or intimidating litigation, and that the adjudicatory process over which the official presides contains sufficient safeguards to lessen the “need for individual suits to correct constitutional error.” Id. at 512 , 98 S.Ct. at 2914 . Although several courts have applied the Butz analysis in a similar context, e.g. Reed v. Village of Shorewood, 704 F.2d 943, 951-52 (7th Cir. 1983) (liquor control commissioner absolutely immune for quasi-judicial acts); United States v. Irving, 684 F.2d 494, 496-97 (7th Cir.1982) (parole board members absolutely immune for quasi-judicial acts); Segarra v. McDade, 706 F.2d 1301, 1305 (4th Cir.1983); Ward v. Johnson, 690 F.2d 1098 (4th Cir. *678 1982) (en banc) (prison officials absolutely immune for quasi-judicial acts), one may not generalize safely from the holdings in those cases; every case differs in the degree which the official asserting absolute immunity is comparable to a judge, in the degree to which he is exposed to harassing litigation, and in the degree which the procedural formality of the proceeding is sufficient to assure that constitutional error, if it occurs, will not go uneorrected. Accordingly, each factor must be analyzed in the context of the facts and circumstances existing at the time the plaintiff’s rights were infringed. Absent such analysis, a court cannot balance the need to protect the rights of citizens against the need to protect officials who perform judicial or quasi-judicial functions. 3
I believe that this circuit has failed to analyze fully immunity issues concerning the special functions doctrine. 4 Without discussion, the majority holds that the federal correctional officers in this case are not entitled to absolute immunity; it believes that this court’s decision in Redding v. Fairman, et al., 717 F.2d 1105 (7th Cir.1983) is dispositive. Without discussion, this court in Redding held that prison officials of the Illinois Department of Corrections were not entitled to absolute immunity; it believed that this court’s decision in Mary and Crystal v. Ramsden, 635 F.2d 590 (7th Cir.1980) was dispositive. In Mary and Crystal , the primary issue was whether staff members at Goodland State Camp, a Wisconsin juvenile correctional institution, were entitled to absolute immunity. This court acknowledged that the threshold question was whether the staff members performed a function comparable to that of a judge; it concluded that the staff members of the juvenile center performed a function more akin to the function performed by school board members. Id. at 600 . I do not believe that one can assert rationally that the function performed by the federal correctional officers in this case, who serve on a disciplinary committee in a federal penitentiary, is equivalent to the function performed by school board members. 5 The experience in this circuit demonstrates the need to analyze carefully each of the factors established by Butz. 6
*679 In this case, the defendants are federal correctional officers who serve on a committee called the Institutional Disciplinary Committee (IDC). 7 Although, as prison officials they were primarily responsible for the day-to-day operations of the prison, they argue that they were discharging a quasi-judicial function while serving on the IDC, and, thus, that they ought to be entitled to absolute immunity for these acts in light of Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). I agree.
Clearly, the appellants, as members of the IDC, are functionally comparable to judges. Indeed, IDC members are involved in the classic judicial function: they are required to determine whether an accused person is guilty or innocent of the charges brought against him. See Bureau of Prisons Policy Statement, 7400.5C (1974), Sec. 9(b). See also 28 C.P.R. Sec. 541.14(c). They are required to judge the credibility of witnesses, to weigh the evidence, and to make a principled determination of guilt or innocence. Because the IDC members discharge responsibilities which are identical to judges, 8 I believe that the first prong of the Butz test is satisfied. See United States v. Irving, 684 F.2d 494, 496-97 (7th Cir.1982) (parole board members are functionally comparable to judges). Cf. Reed v. Village of Shorewood, 704 F.2d 943, 951 (7th Cir.1983) (liquor control commissioner entitled to absolute immunity because acting in “judicial capacity”).
The likelihood that an adverse decision would result in harassing or intimidating litigation is equally apparent. Ward v. Johnson, 690 F.2d 1098, 1108 (4th Cir.1982) (en banc). See United States v. Irving, 684 F.2d at 497 (danger that parole board members will be harassed by retaliatory suits). The ability of prisoners to generate litigation is substantial and well documented. See Ward v. Johnson, 690 F.2d at 1108 . The burden of such prodigious litigation upon IDC members would be substantial in terms of time and money; these burdens are likely to affect the fashion in which IDC members discharge their quasi-judicial functions.
In my opinion, the final factor in Butz , whether the procedural safeguards are sufficiently formal to assure that constitutional error will not go uncorrected, is the crux of this dispute. See Butz v. Economou, 438 U.S. at 512 , 98 S.Ct. at 2913-2914 ; Reed v. Village of Shorewood, 704 F.2d at 952 . This factor is an expression of the inverse relationship between procedural regularity and the incremental deterrent effect of qualified immunity; if the formality of the procedure is sufficient to assure that constitutional error will be corrected, then qualified immunity will have only a marginal deterrent effect which, in turn, will not warrant exposing persons acting in a quasi-judicial function to the risk of personal liability and the expense of defending against the complaint of a disappointed liti *680 gant. See Simons v. Bellinger, 643 F.2d 774, 782 (D.C.Cir.1980) (“The presence of these checks reduces the need for private causes of action and thereby renders absolute immunity appropriate.”). Thus, absolute immunity is justified only when the procedures afforded the litigants are sufficient to assure that the risk of uncorrected constitutional error is low, and the attendant need for the incremental deterrent effect of qualified immunity is limited.
The procedures in effect at the time of the plaintiff’s hearing before the IDC were fairly extensive. 9 Under Policy Statement 7400.5C, which was in effect in 1975, no staff member having personal knowledge of the incident which is the subject matter of a hearing is permitted to serve on the IDC. Policy Statement, 7400.5C, Sec. 9(a). See 28 C.F.R. Sec. 541.14(b). The IDC is required to keep a record of the proceedings which documents the inmate’s awareness of his rights, the IDC’s findings, its decision, the specific evidence relied upon by the IDC, and an explanation of the reasons for imposing the sanction chosen. Policy Statement 7400.5C, Sec. 9(c)(4). See 28 C.F.R. Sec. 541.15(g). Moreover, prisoners are entitled to seek review of the IDC’s decision. Initial review of an IDC decision is provided by the warden; an adverse decision by the warden may be appealed to the Regional Director, Bureau of Prisons. Finally, decisions of the Regional Director may be reviewed by the Assistant Director (General Counsel), Bureau of Prisons. Policy Statement 7400.5C, Sec. 10. See 28 C.F.R. Sec. 541.17.
An inmate charged with misconduct is entitled to notice of all charges against him at least 24 hours before his hearing. Policy Statement, 7400.5C, Sec. 9(c)(1). See 28 C.F.R. Sec. 541.15(a). He also is entitled to select a correctional staff member as an advocate for his position; the IDC may order the hearing continued to assure that the selected advocate has sufficient time to prepare for the hearing. Policy Statement, 7400.5C, Sec. 9(c)(2). See 28 C.F.R. Sec. 541.15(b). An inmate is permitted to call witnesses and to present documentary evidence on his behalf; the staff representative may question these witnesses or, if the right to a staff representative is waived, the inmate may submit written questions to be asked by the IDC. 10 Policy Statement 7400.5C, Sec. 9(c)(3). See 28 C.F.R. Sec. 541.15(c). If the IDC refuses to call a witness requested by the inmate, the reasons for the refusal must be determined in the record. Policy Statement 7400.5C, Sec. 9(c)(3). See 28 C.F.R. Sec. 541.15(c). The inmate is entitled to be present during all phases of the hearing, except during the deliberations of the IDC. Policy Statement 7400.5C, Sec. 9(c)(5). See 28 C.F.R. Sec. 541.15(c).
The proceedings before the IDC are adversarial in nature and are sufficiently formal to assure that any constitutional error will either be corrected in the course of the proceeding, or avoided entirely. Inmates are represented by advocates, and are permitted to present evidence in their defense. The IDC is required to engage in principled *681 decision making, to make detailed findings of fact, and to explain the basis for its decision in writing. At least two of the members of the IDC must be senior officials holding a position equivalent to a department head position; thus, the IDC’s decision is unlikely to be a result of intimidating influences. Finally, any decision is subject to several levels of appellate review; the efficiency of the review is demonstrated by the decision to modify, and, ultimately, to reverse the IDC’s decision in this case. I believe that IDC proceedings are sufficiently formal to satisfy the third prong of the Butz test and to warrant the extension of absolute immunity to IDC members.
In sum, I believe that the IDC members act in a quasi-judicial fashion, that a substantial risk of retaliatory litigation exists, and that the procedural rules governing the conduct of disciplinary proceedings are sufficient to assure that constitutional error will not go uncorrected; consequently, I would hold that the appellants, all members of the IDC, are entitled to absolute immunity. Butz v. Economou, 438 U.S. at 511-512 , 98 S.Ct. at 2913-2914 .
. Normally, a prison official is entitled to qualified immunity from liability for acts occurring in the course of his duties. Procunier v. Navarette, 434 U.S. 555 , 98 S.Ct. 855 , 55 L.Ed.2d 24 (1978). See Butz v. Economou, 438 U.S. 478, 498 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978). The type of immunity to be accorded an official, however, is not a function of that official’s position within the hierarchical structure of government. Id. at 511 , 98 S.Ct. at 2913. Rather, the type of immunity to be accorded a particular official depends upon the duties the official was discharging at the time the allegedly tortious conduct occurred. E.g., Stump v. Sparkman, 435 U.S. 349, 362 , 98 S.Ct. 1099, 1107 , 55 L.Ed.2d 331 (1978) (type of immunity available to a judge depends upon the nature of the act); Hampton v. City of Chicago, 484 F.2d 602, 608 (7th Cir.1973), cert. denied, 415 U.S. 917 , 94 S.Ct. 1413 , 39 L.Ed.2d 471 (1974) (nature of prosecutor’s immunity depends upon character of conduct). See Apton v. Wilson, 506 F.2d 83, 91-92 (D.C.Cir.1974) (prosecutor absolutely immune only when participating in judicial process); Lopez v. Vanderwater, 620 F.2d 1229, 1233 (7th Cir.), cert. dismissed, 449 U.S. 1028 , 101 S.Ct. 601 , 66 L.Ed.2d 491 (1980) (judge absolutely immune if unconstitutional act is judicial in character).
. The concurrence believes that the Supreme Court in Nixon v. Fitzgerald, 457 U.S. 731 , 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982), granted the President of the United States absolute immunity “because of his high office.” According to the concurrence, the “rank of the official” determines whether public policy requires absolute immunity; it reasons that “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” (emphasis added). Clearly, the concurrence’s assertions that this dissent relies improperly on an official’s “title” and disregards the “functional approach to immunity law” are unfounded.
Contrary to the concurrence’s assertions, the Supreme Court has stated repeatedly that the type of immunity to be afforded executive officials does not depend upon the official’s “high” position in the executive branch. E.g., Harlow v. Fitzgerald, 457 U.S. 800, 808-809 , 102 S.Ct. 2727, 2733-2734 , 73 L.Ed.2d 396 (1982); Nixon v. Fitzgerald, 457 U.S. 731, 744-47 , 102 S.Ct. 2690, 2699-2700 , 73 L.Ed.2d 349 (1982); Butz v. Economou, 438 U.S. 478, 506 , 98 S.Ct. 2894, 2910 , 57 L.Ed.2d 895 (1978). Instead, the Supreme Court has held consistently that the type of immunity available to executive officials depends upon the functions performed by the particular official claiming immunity. E.g., Harlow v. Fitzgerald, 457 U.S. 800, 810 , 102 S.Ct. 2727, 2734 , 73 L.Ed.2d 396 (1982); Nixon v. Fitzgerald, 457 U.S. 731, 751 , 102 S.Ct. 2690, 2702 , 73 L.Ed.2d 349 (1982); Butz v. Economou, 438 U.S. 478, 508 , 98 S.Ct. 2894, 2911-2912 , 57 L.Ed.2d 895 (1978). Accordingly, the Supreme Court in Nixon did not grant the President of the United States absolute immunity “because of his high office.” Instead, the Supreme Court reasoned that absolute immunity was necessary to permit the President to fulfill responsibilities important for the effective functioning of our government. Similarly, the Supreme Court in Harlow did not hold that “public policy does not require absolute immunity for ... high ranking presidential aides.” Indeed, the Supreme Court expressly reserved the question whether the petitioners, on remand, could prove that their functions were so sensitive as to justify a grant of absolute immunity. Harlow v. Fitzgerald, 457 U.S. 800, 813 , 102 S.Ct. 2727, 2736 , 73 L.Ed.2d 396 (1982). I believe that the Supreme Court’s decisions in Butz, Nixon and Harlow confirm the continued vitality of the “special functions” doctrine. Consistent with the Supreme Court’s approach to immunity law, the critical inquiry does not depend upon the fact that this case involves “comparatively low-level officials”, but rather, upon the functions which these officials were *678 performing at the time that the alleged constitutional violation occurred.
. According to the concurrence, this dissent focuses improperly on protecting officials, rather than the public interest. The concurrence reasons that public policy is the threshold question; “if public policy does not require immunity, an official’s function becomes irrelevant.” (emphasis added).
As the concurrence recognizes, the critical question is whether public policy justifies conferring upon an official the right to absolute immunity. The concurrence fails to recognize, however, that we define the need for such protection by examining the function performed by the official. Quite logically, this approach has been called the “functional approach to immunity law.” E.g., Harlow v. Fitzgerald, 457 U.S. 800, 810 , 102 S.Ct. 2727, 2734 , 73 L.Ed.2d 396 (1982). In other words, the importance of the function defines the public interest. In my view, the concurrence’s suggestion that we first examine the public interest and if the interest is insufficient disregard the function performed by the official claiming immunity, is inconsistent with the basic rationale of the functional approach to immunity law. Whether the “functional test” established by the Supreme Court is an “inappropriate” approach to immunity law is not the issue. The issue in this circuit concerns this court’s willingness to follow Supreme Court precedent.
. The exception is this court’s decision in United States v. Irving, 684 F.2d 494 (7th Cir.1982). In Irving , the question presented was whether certain parole board members were entitled to absolute immunity. In an excellent discussion, this court found that the parole board members performed a task “functionally comparable” to judges, that the parole board members faced “the same risk of constant unfounded suits,” and that the safeguards available protected adequately prisoners’ parole rights. Id. at 496-97 . Accordingly, this court held that these parole board members were entitled to absolute immunity. Id.
. The difference between the function performed by prison officials and the function performed by school board members is as great as the difference between prisoners and schoolchildren. See Ingraham v. Wright, 430 U.S. 651, 669 , 97 S.Ct. 1401, 1411 , 51 L.Ed.2d 711 (1977) (“The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.”)
. For example, the question whether the available procedural safeguards are sufficient to assure that constitutional error will not go uncor *679 rected depends on the particular procedures available. The procedural safeguards available to inmates who appear before the members of the IDC are not the same set of procedures available to juvenile inmates at a Wisconsin Juvenile Correctional Institution. Mary and Crystal v. Ramsden, 635 F.2d 590 , 594 n. 1 (7th Cir.1980) (juvenile defendants were not permitted to have advocates at the hearing, were not permitted to question witnesses, and were not permitted to produce witnesses in their defense).
. This circuit has twice concluded that prison officials involved in the disciplinary process were entitled to qualified immunity. Chavis v. Rowe, 643 F.2d 1281 (7th Cir.1981); Hayes v. Thompson, 637 F.2d 483 (7th Cir.1980). In both of these cases, however, the question whether prison officials are entitled to absolute immunity does not appear to have been presented or decided; neither case cites or discusses the Supreme Court’s decision in Butz .
. The justification for affording absolute immunity to executive officials who perform quasi-judicial functions is patently obvious. Like parole board members and federal court judges, officials who serve on a disciplinary committee in a federal penitentiary perform the function of rendering “impartial decisions in cases and controversies that excite strong feelings because the litigant’s liberty is at stake. They face the same risk of constant unfounded suits by those disappointed by their decisions.” United States v. Irving, 684 F.2d 494, 497 (7th Cir.1982). (“The adjudicatory process simply could not work if the adjudicator had to anticipate a possible lawsuit from every dissatisfied litigant.”).
. The plaintiffs have argued that in order to determine whether the third part of the Butz analysis is satisfied, a court should examine the procedure that was actually afforded them. In my view, the degree of procedural formality must be determined by examining the procedural safeguards which should have been afforded the plaintiffs; if, as the plaintiffs suggest, courts examined only the procedure actually afforded, then the decision to provide absolute immunity would depend entirely upon the degree which the IDC departed from traditional notions of procedural regularity. In other words, if procedural error was egregious, absolute immunity would not be available as a defense. Such an analysis would be akin to a qualified immunity analysis because the availability of absolute immunity would depend upon the degree to which the defendant’s actions departed from accepted standards of conduct. Cf. Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982) (defense of qualified immunity unavailable if actions clearly are at variance with established constitutional right).
. This right to call witnesses is not unlimited; the IDC may refuse to call a witness if the testimony would be cumulative or if the presence of the witness would implicate security considerations. Policy Statement 7500.5C, Sec. 9(c)(3). In any event, inmates are not permitted to conduct any examinations of witnesses.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9471774. Public record. Not legal advice.