concluding that "federal courts have the 26 jurisdictional authority to entertain a Bivens action brought by a 27 federal prisoner, alleging violations of his right to substantive 28 due process"
How later courts described this case
- concluding that "federal courts have the 26 jurisdictional authority to entertain a Bivens action brought by a 27 federal prisoner, alleging violations of his right to substantive 28 due process"
- holding that framing an inmate by planting evidence may violate substantive due process where a defendant’s conduct shocks the conscience and constitutes an “egregious abuse of governmental power”
- concluding *211 that “federal courts have the jurisdictional authority to entertain a Bivens action brought by a federal prisoner, alleging violations of his right to substantive due process”
- recognizing the § 1983 claim of an inmate in part because “in this case appellant was in danger of further loss of liberty through disciplinary detention and through the loss of good-time credit as the result of the charges filed against him”
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Thaddeus-X and Earnest Bell, Jr. v. Blatter, 175 F.3d 378 (1999)
861 F.2d 943, 950 (6th Cir. 1988), overruled on other grounds by Thaddeus-X v. Blatter, 175 F.3d 378
The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
I agree that this case ought to be remanded, but my reasons for thinking so differ somewhat from those of my colleagues.
As a prison official, Food Service Administrator Wahl surely had no authority to cause illegal drugs to be planted on the person of a prison inmate for any purpose at all, retaliatory or otherwise. Whether the alleged frame-up was prompted by pique at inmate Cale’s critique of Wahl’s menu, or by animosity stemming from dislike of Mr. Cale’s looks, or race, or personality or whatever, Wahl had absolutely no business trying to make it appear that the inmate was guilty of an infraction of which he was innocent.
This poses a problem for the plaintiff in a Bivens action, as opposed to the sort of tort action that could doubtless have been brought in a state court under state law. The Bivens decision, as Mr. Cale correcly observed in his pro se complaint, held that federal employees may be sued for violating people’s constitutional rights. Federal constitutional law has a narrower sweep, of course, than state tort law does. Both of the constitutional rights that Mr. Cale is talking about in this case — the Eighth Amendment right not to be subjected to cruel and unusual punishment, and the Fifth Amendment right not to be deprived of life, liberty or property without due process of law — exist because of constitutional prohibitions against improper actions performed under color of governmental authority, and only under color of such authority. The Constitution does not prevent Food Service Administrator Wahl from going home at night and inflicting cruel and unusual punishment on his wayward child, or arbitrarily depriving the child of liberty, when the man is acting in his role as parent and not in his role as prison official. Nor does Bivens give the child a federal cause of action in such a situation; a cause of action for damages consequent upon unconstitutional conduct arises, under Bivens, when there is a violation of a constitutional command “by a federal agent acting under color of his authority_” Bivens, 403 U.S. 388, 389 , 91 S.Ct. 1999, 2001 , 29 L.Ed.2d 619 (1971). (Emphasis supplied.) 1 When the federal agent is not acting under color of his governmental authority, his conduct, however heinous, is simply not unconstitutional.
One of the several hurdles confronting Mr. Cale in this case, therefore, is to show that when Administrator Wahl had the marijuana planted, if that is what he did, he was acting under color of his authority as a federal employee. One possible way of surmounting that hurdle would be to show that Wahl’s act was not an isolated incident, but was part of a pattern of misconduct so pervasive as to be suggestive of governmental action, as opposed to purely private action. That seems to be precisely what was alleged in Franco v. Kelly, 854 F.2d 584, 586 (2d Cir.1988), where the plaintiff claimed that the filing of false disciplinary charges against him, with the result that he was placed in confinement for 30 days, “was part of a pattern of false disciplinary actions taken against him in retaliation for his cooperation with an investiga-tion_” (Emphasis supplied.)
*952 In moving for summary judgment in this case, defendant Wahl made no effort to demonstrate that the planting of the marijuana, if it occurred, was an isolated incident rather than part of a more pervasive pattern of misconduct. That the supposed frameup may have been part of a congeries of similar acts is suggested by the summary judgment order itself; in that order the district court tells us that “defendant Wahl was subsequently investigated for numerous wrongdoings and discharged from his employment with F.C.I. [Federal Correctional Institute] Milan.”
We cannot tell, at this point, how much the government knew about Wahl’s behavior before the alleged set-up of Mr. Cale. Maybe the government ought to have fired Wahl long before the purported planting of the marijuana. In any event, I am not prepared to say, on the present record, that Wahl and Persky may not have been performing their roles, in the drama that has been described to us, as government actors rather than as bad actors of a purely private sort.
Assuming then, as I think one must, that plaintiff Cale may be able to show that defendants Wahl and Persky acted under color of government authority, one comes to the question whether their presumed governmental actions could have violated the commandments of the Fifth or Eighth Amendments.
As to the latter, it seems reasonably clear, for several of the reasons spelled out by Judge Friendly in Johnson v. Glick, 481 F.2d 1028, 1031 (2d Cir.), cert. denied, 414 U.S. 1033 , 94 S.Ct. 462 , 38 L.Ed.2d 324 (1973), that our case, like that one, “does not lie comfortably within the Eighth Amendment.” The text of the amendment, as Judge Friendly noted, “suggests action taken, usually by a court, in carrying out a legislative authorization or command.” Id. Although the prohibition against cruel and unusual punishment may also apply to the manner in which an otherwise constitutional sentence is carried out, there cannot be a violation without “punishment,” and the punishment must have been “deliberately administered for a penal or disciplinary purpose, with the apparent authorization of high prison officials charged by the state with responsibility of the state for the care, control, and discipline of prisoners.” Id. at 1032. Thus a spontaneous physical attack by a prison guard against an inmate “does not fit any ordinary concept of ‘punishment,’ ” Judge Friendly said, notwithstanding the punitive intent of the guard himself. Id.
Food Service Administrator Wahl may well have had a punitive intent in causing the marijuana to be planted, if that is what happened, but the hypothesis has to be that he intended to punish the criticism of his menu, not the violation of a federal statute. The affidavits filed in this case establish without contradiction that as far as the high officials in charge of running the prison are concerned, the placing of an inmate in administrative detention status while the inmate is under investigation for possession of drugs is a standard prison practice that is prophylactic in nature, not punitive. Plaintiff Cale’s able appellate counsel as much as conceded, during oral argument, that the Eighth Amendment claim is not viable, and I am inclined to agree with him. I assume my colleagues are too.
Where I may have a fundamental difference with my colleagues is in the analysis of Mr. Cale’s Fifth Amendment claim. If the claim is simply that Food Service Administrator Wahl committed an abuse of governmental power so “egregious” that it “shocks the conscience” and therefore violated Mr. Cale’s “right to substantive due process,” it seems to me that the claim may not lie any more comfortably within the text of the Fifth Amendment than it does within the text of the Eighth Amendment.
The Fifth Amendment does not say “No person shall be deprived of substantive due process.” It says, rather, that no person shall be deprived of “life, liberty or property,” except by due process of law. What Mr. Wahl is alleged to have done here obviously did not deprive Mr. Cale of his life or his property, so the question that the district court ought to have addressed, I *953 believe, is whether Mr. Wahl’s conduct as a putative government actor could possibly be shown to have deprived Mr. Cale of his "liberty” without due process of law.
We do not know how the district court would answer that question, because the court merely told us that its conscience was not “shocked” by what happened. Not all consciences cringe at the same conduct, of course, and my colleagues may be easier to shock than the district court was. The “shocks the conscience” test “is not one that can be applied by a computer,” as Judge Friendly rather delicately put it in Glick, 481 F.2d at 1083 , and as for me, I am frank to say that the shock threshold of any individual judge, like the length of any individual chancellor’s foot, is a question that interests me less than the one I think the district court ought to have addressed here, but didn’t.
It is possible, for all I know, that the district court might have been able to conclude, under the facts of this case, that Mr. Cale did indeed have a constitutionally protected “liberty interest” in remaining in the general prison population, rather than being put in administrative segregation for three days. The United States Supreme Court has said, after all, that the prison regulations of the Commonwealth of Pennsylvania may give a Pennsylvania prisoner “a [constitutionally] protected liberty interest in remaining in the general prison population.” Hewitt v. Helms, 459 U.S. 460, 470-71 , 108 S.Ct. 864, 870-71 , 74 L.Ed.2d 675 (1983). The Court was speaking there of an inmate who had been placed in administrative segregation for a period of five days. Whether, on the facts presented, a difference of two days would be enough to differentiate the instant case from Hewitt v. Helms, I do not know. (See Vasquez v. City of Hamtramck, 757 F.2d 771, 773 (6th Cir.1985), where we declined to give a constitutional dimension to acts of “petty harassment” by a state agent. Compare Baker v. McCollan, 443 U.S. 137 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979), where a negligent detention of the plaintiff for three days was held not to have deprived him of liberty without due process of law.) The observations of the district court, more familiar with the facts than I, would have been helpful on this point.
If Mr. Cale did have a constitutionally protected “liberty interest” in remaining in the general prison population — and it is hard for me to believe that the prison regulations in effect at the Milan FCI authorized the placement of inmates in administrative segregation on the strength of false evidence purposely manufactured by the government — and if the government actually set Mr. Cale up for administrative segregation in the way that he claims, I would conclude that he was indeed deprived of his liberty without the minimal process that is due in the prison context.
My conclusion might be difficult to reconcile with Freeman v. Rideout, 808 F.2d 949 (2d Cir.1986), reh. denied, 826 F.2d 194 (2d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1273 , 99 L.Ed.2d 484 (1988), where the filing of unfounded administrative charges against an inmate was held not to violate due process as long as the charges were subsequently adjudicated in a fair hearing. There may be a meaningful difference, however, between triggering administrative disciplinary proceedings by openly filing charges that ultimately prove to be unfounded or false, and triggering such proceedings by surreptitiously planting contraband on an inmate’s person or in his cell. Hanrahan v. Lane, 747 F.2d 1137 (7th Cir.1984) — a case decided per curiam without argument — suggests that even the planting of contraband poses no due process problem. I disagree.
I realize that the exigencies of the prison situation sometimes require prison officials to act quickly and informally, and courts should be very slow indeed to equate informality with unconstitutionality. But if Mr. Cale’s account of the facts is true, there was no conceivable justification for the manner in which Mr. Cale’s removal from the general prison population was effected by Mr. Wahl. For the government know *954 ingly to railroad someone into confinement by planting false evidence on his person is directly comparable, by my lights, to railroading a person into confinement through a kangaroo court proceeding in which the accused has no opportunity to be heard. Both procedures strike me as the very antithesis of “due process” in the true sense of that term. 2
Rather than telling the district court that its conscience ought to have been shocked by Mr. Cale’s story, I would have asked the court to determine whether defendants Wahl and Persky, acting under color of governmental authority, did in fact deprive Mr. Cale of liberty without due process of law.
. Inmate Persky, who allegedly planted the marijuana under Wahl's direction, was not a federal agent himself, of course, but it is not inconceivable that he was acting under color of a federal agent’s authority qua federal agent. Compare Nishiyama v. Dickson County, Tennessee, 814 F.2d 277 (6th Cir.1987) (en banc), where we held that a state prisoner, although not an agent of the state, could have been acting under color of state law, for purposes of 42 U.S.C. § 1983 , at the time he committed a brutal murder.
. Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272, 276 , 15 L.Ed. 372 (1856), a decision cited with approval in Daniels v. Williams, 474 U.S. 327, 332-33 , 106 S.Ct. 662, 665-66 , 88 L.Ed.2d 662 (1986), tells us that what was originally meant by "due process of law,” as used in the Fifth Amendment, was what Lord Coke, in his famous commentary on Magna Charta, said was conveyed in the latter document by the phrase "by the law of the land." That phrase appears in a chapter (Chapter 29) of Magna Charta that may be translated as follows:
“No free man shall be taken, or imprisoned, or disseised of his free tenement, or liberties, or his free customs, nor shall he be outlawed, or exiled, or in any way destroyed, nor will we go upon him, nor will we send upon him, but by the lawful judgment of his peers, or by the law of the land. To none will we sell, to none will we deny, or delay justice, or right.” (Emphasis supplied.) As quoted (in Latin) at Coke, 2d Inst., 45.
Coke begins his exegesis of the phrase “but by the law of the land” as follows:
"For the true sense and exposition of these words, see the Statute of 37. E.3.cap.8, where the words, by the law of the Land, are rendered, without due process of Law....” Id. at 50.
A few pages later, still on the same subject, Coke remarks that “if any man by colour of any authority, where he hath not any in that particular case, arrest, or imprison any man, or cause him to be arrested, or imprisoned, this is against this Act, and it is most hatefull, when it is done by countenance of Justice.” Id. at 54.
Coke’s Institutes were a staple of 18th Century legal learning, of course, and it is far from unreasonable to suppose that the Fifth Amendment’s prohibition against deprivation of liberty "without due process of law” was intended to be broad enough to cover the “hatefull” case of the man who, acting by color of an authority he does not possess, causes another to be arrested or imprisoned wrongfully. Our forebears might well have had difficulty with the concept that it is possible for a person to be wrongfully deprived of liberty after his liberty has already been taken away by lawful imprisonment, but that difficulty need not concern us; the Supreme Court has made it clear that some prisoners, at least, retain a measure of liberty that the Constitution protects even after the prison gates have clanged shut on them.