# Daniel Johnson v. Joe Kegans and John Holmes

> Court of Appeals for the Fifth Circuit · April 24, 1989 · 870 F.2d 992

URL: https://www.frixlaw.com/law-library/cases/9478840

## Case

- **Full name:** Daniel JOHNSON, Plaintiff-Appellant, v. Joe KEGANS and John Holmes, Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 24, 1989
- **Citations:** 870 F.2d 992; 1989 U.S. App. LEXIS 5486; 1989 WL 31497
- **Precedential status:** Published
- **Opinion:** Dissent by Goldberg
- **Judges:** Goldberg, Garwood, Jolly
- **Cited by:** 93 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/9478840

## How later opinions describe it (automated extraction)

- holding that prosecutor’s statements to the parole board were protected by absolute immunity
- concluding that absolute prosecutorial immunity barred inmate’s § 1983 claim arising from 15 prosecutor’s negative recommendation letter to the parole board
- explaining a judge is absolutely immune for all judicial acts “not performed in clear absence of all jurisdiction, however erroneous the act and however evil the motive”
- holding that judges are absolutely immune for judicial acts unless performed in clear absence of jurisdiction
- discussing history of absolute immunity for parole board members, equating their function to that of judges and labeling the parole board’s function "quasi-judicial"

## Opinion text

GOLDBERG, Circuit Judge,
dissenting:
Today we consider what is in my view quite a vexatious issue. Johnson, a prisoner acting pro se, claims that the defendants, a state trial judge and a county prosecutor, have retaliated against him because he exercised his Fourteenth Amendment right of access to the courts. See Part I infra. Embroiling such individuals in litigations initiated by prisoners proceeding pro se and in forma pauperis could have destructive systemic effects on the administration of criminal justice in this country. Needless to say, however, we cannot assume the frivolity of prisoner-initiated litigation attempting to vindicate constitutional rights. Thus, I perceive a practical and legal problem of some magnitude lying before us.
Judge Garwood’s opinion for the majority concludes that the defendants are entitled to absolute immunity from the plaintiff’s Section 1983 suit. I agree that the labyrinth in which we walk leads to the conclusion that the defendants are entitled to absolute immunity. But I have weaved my way somewhat differently through the maze, so I must dissent with deference, because I believe that the majority’s holding sweeps too far. I emphasize that I hold no view of the merits of this case. In fact, the plaintiff’s case appears to be rather dubious. However, a remand would be appropriate based on my reasoning below. Thus, I must write in dissent although the majority and I are in basic agreement about the fundaments of this case.
A district judge has “especially broad discretion” under 28 U.S.C. § 1915 (d) in deciding whether an in forma pauperis proceeding is frivolous, but this discretion is “limited in a pro se case ... by the rule in Haines v. Kerner [, 404 U.S. 519 , 92 S.Ct. 594 , 30 L.Ed.2d 652 (1972) ] ... and in every case by the language of [§ 1915(d) ] itself.” Cay v. Estelle, 789 F.2d 318, 325 (5th Cir.1986) (quoting Boyce v. Alizaduh, 595 F.2d 948, 951 (4th Cir.1979)). I believe that the district court abused its discretion by dismissing the plaintiff’s complaint under § 1915(d). 1
*1000 Four issues prompt my separate opinion. First, I read the plaintiff’s complaint to set forth only one even arguable claim: that the defendants wrote letters to the Texas parole board in retaliation for the plaintiffs exercise of his constitutionally protected right of access to the courts. Such claims pose the primary systemic problems that justify the blanket protections of absolute immunity. The district court did not determine whether the plaintiff alleged facts sufficient to state a retaliation claim, holding only that Johnson has no constitutional right to parole and that the defendants are absolutely immune. Rather than decide an issue on appeal not considered by the court below, however, I would remand to allow the district court to decide in the first instance whether Johnson has stated a retaliation claim.
Second, to the extent the majority holds that absolute immunity flows in these circumstances from the parole board’s immunity, I must respectfully disagree. The absolute immunity of parole board members for their quasi-judicial acts does not, I believe, serve as a basis for determining the scope of the defendants’ immunity in this case.
Third, to the extent the majority holds that absolute immunity must flow in this case from a need to preserve the integrity of the processes of judicial and prosecutorial decisionmaking, I agree, but only to the extent that the information a judge or prosecutor provides to a parole board is reasonably derivative of the adjudicatory process. I would remand this case to allow the plaintiff to state why the information allegedly provided by the defendants to the parole board was not reasonably derived from the adjudicatory process.
Finally, Johnson has made allegations against the prosecutor in his official capacity which would survive if the district court on remand found that Johnson had sufficiently alleged a retaliation claim. Thus, I would remand on this issue as well. I agree that Johnson is not entitled to further consideration of his equitable claims or his damages claim against Judge Ke-gans in his official capacity.
I. The Claim
Johnson primarily and most explicitly complains that the defendants sent letters to the parole board adversely affecting the board’s consideration of his interest in parole. An interest in parole, however, does not support a claim for Johnson, as the majority recognizes and the district court held. Greenholtz v. Inmates of Nebraska Penal and Cor., 442 U.S. 1 , 99 S.Ct. 2100, 2104 , 60 L.Ed.2d 668 (1979) (“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence”). Thus, this suit’s relation to parole is attenuated. Yet the district judge focused and the majority focuses on the parole-oriented language in Johnson’s complaint. The district court held only that (1) Johnson has no constitutional right to parole; and (2) the defendants are entitled to absolute immunity.
In my view, we should focus on the language in Johnson’s complaint suggesting that the defendants retaliated against him for exercising his Fourteenth Amendment right of access to the courts. Bounds v. Smith, 430 U.S. 817 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977); Perry v. Sindermann, 408 U.S. 593 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972); see Mount Healthy City School District v. Doyle, 429 U.S. 274 , 97 S.Ct. 568, 574 , 50 L.Ed.2d 471 (1977). This is the only arguable claim stated in the complaint, and we must construe the plaintiff’s complaint liberally in this pro se action. Bogg v. MacDougall, 454 U.S. 364 , 102 S.Ct. 700, 701 , 70 L.Ed.2d 551 (1982); Haines v. Kerner, 404 U.S. 519 , 92 S.Ct. 594, 595-96 , 30 L.Ed.2d 652 (1972); see Covington v. Cole, 528 F.2d 1365, 1373 (5th Cir.1976), in which we stated that “Job-like patience should be the judicial benchmark in this area.”
Although the record is before us, I would not decide in the first instance whether *1001 Johnson’s factual allegations are sufficient to make out a retaliation claim. Plaintiffs, even pro se plaintiffs, must plead with factual detail and particularity the basis for their claims, Elliott v. Perez, 751 F.2d 1472, 1473 (5th Cir.1985), but the district court did not even consider the retaliation claim, much less hold that Johnson failed to meet the Elliott standard. Thus, I would leave it to the district court to decide the retaliation issue on remand, as well as allow the plaintiff to address the immunity issue. See Part II infra.
II. Absolute Immunity
Although the majority and I reach the same result concerning the immunity issue, my focus on Johnson’s retaliation claim leads me to concentrate solely on the effect of immunity (and its absence) on the integrity of the decisionmaking process leading to conviction and sentencing. As I note above, I do not believe that parole board immunity fits into an analysis of this case.
“Absolute immunity ... is ‘strong medicine, justified only when the danger of [officials’ being] deflected] from the effective performance of their duties is very great.’ ” Forrester v. White, 484 U.S. 219 , 108 S.Ct. 538, 545 , 98 L.Ed.2d 555 (1988) (quoting the Seventh Circuit dissent below of Judge Posner). Thus, we allow absolute immunity to extend no further than is absolutely necessary to protect the integrity of an official’s decisionmaking process. “Running through our cases, with fair consistency, is a ‘functional’ approach to immunity questions other than those that have been decided by express constitutional or statutory enactment. Under that approach, we examine the nature of the functions with which a particular official or class of officials has [sic] been lawfully entrusted, and we seek to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.” Forrester, 108 S.Ct. at 542 ; Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727, 2734 , 73 L.Ed. 2d 396 (1982) (protection of absolute immunity “has extended no further than its justification would warrant”). Clearly, then, absolute immunity should only attach to the extent functional necessity absolutely demands that it must attach.
Forrester illustrates well the narrow approach that we must take in any absolute immunity inquiry. The case demonstrates that absolute immunity is by no means guaranteed to a judge (or, a fortiori, a prosecutor) even when its absence will (at least marginally) affect the decisionmaking process.
In Forrester , the Court held that a state court judge was not entitled to absolute immunity from a Section 1983 damages suit brought by a probation officer whom the judge had dismissed. The officer alleged that in dismissing her the judge discriminated against her on account of her sex in violation of the Equal Protection Clause of the Fourteenth Amendment. After reviewing precedent, the Court held that the dismissal of the probation officer was not a judicial act, but rather constituted an administrative act not shielded by absolute immunity. Forrester, 108 S.Ct. at 545 . The Court rejected the argument that a judge should be entitled to absolute immunity when acting within the scope of his authority, stating that such a holding would “lift form above substance” by characterizing an employment decision as a judicial act. Id. at 546.
The import of Forrester is especially significant because the Court, unanimous on this point, conceded that the argument against its position, stated by the Seventh Circuit panel majority below, carried great weight, although the Court ultimately rejected the argument. The Seventh Circuit majority stated that, “ ‘The evil to be avoided is the following: A judge loses confidence in his probation officer, but hesitates to fire him because of the threat of litigation. He then retains the officer, in which case the parties appearing before the court are the victims, because the quality of the judge’s decision-making will decline.’ ” 108 S.Ct. at 545 (quoting Seventh Circuit panel majority).
Thus, the Court is unwilling to extend absolute immunity even to contexts in which the integrity of the decisionmaking *1002 process is implicated. Instead, the Court has chosen to place the immunity analysis on a spectrum, reversing the judgment below in Forrester because under the facts of the case the “danger” of not providing absolute immunity was “not great enough.” Id. at 545.
A. Parole Board-Derived Immunity.
As the majority recognizes, the parole board is an executive body acting in a quasi-judicial capacity when it performs the adjudicative function of determining whether a prisoner should or should not be paroled. But I do not believe that a judge’s or prosecutor’s provision of information to a parole board derivatively entitles the judge or prosecutor to absolute immunity simply because parole board members are necessarily entitled to absolute immunity in the context of their decisionmaking. Farrish v. Mississippi State Parole Board, 836 F.2d 969, 974 (5th Cir.1988). Consequently, to the extent the majority holds that the defendants are entitled to the immunity enjoyed by the parole board members in their adjudicative capacities, I must respectfully disagree.
Parole board members are entitled to absolute immunity in their adjudicative capacities, because of an overriding need, as with the judiciary, to preserve the integrity of their decisionmaking process. This reflects a consensus by those whose decisions hold sway that the social costs of not providing absolute immunity require a subordination of certain meritorious civil claims that a prisoner may have against a parole board or its members in a particular situation. And, in terms of regulating unconstitutional behavior by parole board members, a parole board’s decisions, whatever the motive, are subject to corrective process. See, e.g., Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.), cert. denied, 454 U.S. 1102 , 102 S.Ct. 678 , 70 L.Ed.2d 644 (1981).
State actors who simply provide information to the Texas parole board, and who act neither under oath nor subject to cross-examination by a prisoner or his representative, are not subject to sufficient corrective process. Such persons, then, should not enjoy an absolute immunity derived simply from a parole board’s members, whose own immunity comes only from the functional need to insulate their decisionmaking process. State actors who provide information to parole board decisionmakers cannot count on such inherent functionalist arguments. They must look elsewhere for protections offered by immunity. 2
As my colleagues well-recognize, the Texas legislature has indeed placed a duty on prosecutors and judges, among others, to provide information concerning prisoners upon request of the parole board, and the parole board, indeed, must request such information. Tex.Code Crim.Proc. art. 42.-18 §§ 8(e) & 9 (Vernon supp.1988). This 1987 enactment, however, does not expressly provide protection from suit for those engaged in the provision of information. Forrester, 108 S.Ct. at 542 . The Texas courts have not construed these provisions. And in any event, the scope of immunity under § 1983 is determined by federal law, not state law. Robertson v. Wegmann, 436 U.S. 584 , 98 S.Ct. 1991, 1998 , 56 L.Ed. 2d 554 (1978). This is true whether we characterize the immunity determination as federal common law or simply as a gloss on 42 U.S.C. § 1983 . I agree entirely with the majority that the Texas statute should influence our decision to provide absolute immunity to the defendants. But the statute should influence us because it allows us to infer that the Texas legislature has made a pronouncement concerning the value of a judge’s and prosecutor’s information derived from the decisionmaking process leading to conviction and sentencing. In contrast, the Texas legislature has not *1003 stated that individuals providing information to parole boards should be derivatively blanketed by whatever immunity the members of a parole board enjoy.
Thus, to the extent the majority opinion holds that because the defendants’ “acts were intimately connected with ... the quasi-judicial parole-granting process” the defendants are entitled to absolute immunity, I cannot agree. The holding “sweeps too far.” Harlow, 102 S.Ct. at 2734 . We grant absolute immunity to parole board members to preserve the integrity of their decisionmaking process, but this functional rationale does not apply to state actors who are not otherwise expressly protected by legislative enactment, and who provide information to the decisionmakers neither under oath nor subject to cross-examination. “The undifferentiated extension of absolute ‘derivative’ immunity ... [canjnot be reconciled with the ‘functional’ approach that has characterized the immunity decisions of [the Supreme] Court.” Harlow, 102 S.Ct. at 2734 .
B. Absolute Immunity Grounded in the Decisionmaking Process.
Because I believe that absolute immunity cannot flow in these circumstances from the parole board, as I discuss above in Part 11(A), it must have its source, if it exists, in the decisionmaking process leading to conviction and sentencing. To the extent the majority holds that immunity flows from the adjudicatory decisionmaking process, I agree with this result. While this immunity will be overinclusive, and will allow a judge or prosecutor who acts with a retaliatory motive to escape civil liability in a particular case, I believe it is necessary to protect the systemic integrity of the adjudicatory process.
Although I have found no decision that addresses the problem we face, see Tyler v. Ryan, 419 F.Supp. 905, 907 (E.D.Mo.1976) (holding prosecutor immune for writing letter to parole board, citing for support only Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976), and offering no additional reasoning), I believe the step we are taking is weighted in the balance between the functional need for immunity and the need to consider claims under the Constitution carefully. We extend the existing law that defines the scope of absolute immunity with such a holding, however, and therefore my conclusion lies within close confines. We address judicial and prosecutorial immunity in an unusual context where (1) corrective process for unconstitutional acts shielded by immunity is insufficient; and (2) the acts of defendants are not formally within their “jurisdiction” in the terms our jurisprudence has emphasized.
Our jurisprudence has commonly afforded absolute immunity to judges “from liability for damages for acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547 , 87 S.Ct. 1213, 1217-18 , 18 L.Ed.2d 288 (1967), citing, Bradley v. Fisher, 80 U.S. (13 Wall.) 335 , 20 L.Ed. 646 (1872); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719 , 100 S.Ct. 1967, 1976 , 64 L.Ed.2d 641 (1980). “[T]he necessary inquiry in determining whether a defendant judge, is immune from suit is. whether at the time he took the challenged action he had jurisdiction over the subject matter before him.” Stump v. Sparkman, 435 U.S. 349 , 98 S.Ct. 1099, 1105 , 98 L.Ed. 2d 331 (1978). His act must constitute a “judicial act.” 98 S.Ct. at 1106. Similarly, prosecutors enjoy absolute immunity “in initiating a prosecution and in presenting the State’s case.” Imbler v. Pachtman, 424 U.S. 409 , 96 S.Ct. 984, 995 , 47 L.Ed.2d 128 (1976); Supreme Court of Virginia, 100 S.Ct. at 1977 . The immunity attaches because a prosecutor’s activities are an “integral part of the judicial process.” Imbler, 96 S.Ct. at 995 (quoting court of appeals decision below).
Several considerations underlie the need to grant absolute immunity to judges, including “the need to assure that the individual can perform his functions without harassment or intimidation; ... the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; ... and ... the correctability of error on appeal.” Cleavinger v. Saxner, 474 U.S. 193, 202 , 106 S.Ct. 496, 501 , 88 L.Ed.2d 507, *1004 514-15 (1985), citing, Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978); see also Imbler, 96 S.Ct. at 944 (public not “powerless to deter misconduct or to punish that which occurs” given prosecutor’s absolute immunity). I shall discuss the immunity issue primarily with reference to judges for the sake of clarity, although my conclusions apply to prosecutors as well.
As I have noted, one must perform a strict functional analysis in determining whether absolute immunity should attach in a particular case or class of cases. It is therefore essential to understand the world in which judges and prosecutors would live if they were not entitled to absolute immunity in the circumstances of this case. Prisoners file numerous complaints 'pro se and in forma pauperis. Cay v. Estelle, 789 F.2d 318, 324-25 (5th Cir.1986) (quoting Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd on basis of district court’s reasoning, 480 F.2d 805 (5th Cir.1973)); see W.B. Turner, When Prisoners Sue: A Study of Section 1983 Litigation in the Federal Courts, 92 Harv.L.Rev. 610 (1979). If judges and prosecutors were required to defend suits like this one, they would be drawn into a significant number of cases not subject to dismissal under 28 U.S.C. § 1915 (d), broad as the discretion of a district judge may be. Cay, 789 F.2d at 325 . When prisoners allege in their pro se complaints that judges or prosecutors have retaliated against them for filing earlier lawsuits against the official, then because we give particularly liberal scrutiny to pro se complaints from prisoners, even in contexts where immunities come into play, a significant number of cases should proceed beyond the initial pleading stage. By the time a case goes beyond its earliest stage, the judge or prosecutor may have to hire a lawyer to, for example, file an answer if the complaint is served, or represent her at an evidentiary hearing where the prisoner’s credibility would be tested. Spears v. McCotter, 766 F.2d 179 (5th Cir.1979).
Involvement in such litigations poses a grave systemic problem. If a judge or prosecutor faces numerous lawsuits like this one that she must defend, the quality of her decisionmaking during the adjudication of pending and future cases, and during sentencing, will be adversely affected. Prisoners could effectively intimidate judges and prosecutors from acting with the utter independence that their proper decisionmaking requires. The judge or prosecutor faced with such litigation would understandably keep an eye fixed on the possibility that a defendant on trial may later sue or harass the judge or prosecutor if her actions appear too harsh. Prosecuto-rial tactics before and during trial, judicial rulings before and during trial and judicial sentencing decisions would all be adversely affected. “The resulting timidity would be hard to detect or control, and it would manifestly detract from independent and impartial adjudication.” Forrester, 108 S.Ct. at 544 . Unlike in Forrester , the significant nexus between the integrity of the decisionmaking process and the likely effect of prisoner litigation on the integrity of the decisionmaking process justifies our extension of absolute immunity. In For-rester, on the other hand, the relationship between the judge’s administrative employment decisions and the integrity of the decisionmaking process was substantially more attenuated. 3
Still, extending absolute immunity in these circumstances raises perplexing issues that require pause and careful deliberation. In this case, as I note above, we confront two primary problems under these standards commonly used to determine a judge’s entitlement to absolute immunity.
First, the “judicial jurisdiction” extends to aspects of the decisionmaking process leading to conviction and sentencing during the time period when the judge is empow *1005 ered to make adjudicative decisions. These aspects of the decisionmaking process include, for example, rulings before trial on motions, rulings at trial on the admissibility of evidence, consideration of testimony and, finally, the imposition of a sentence if the defendant is convicted. It does not, for example, extend to every one of a judge’s musings about a prison inmate whom the judge may have sentenced years earlier. If such a loose nexus sufficed, a judge would be protected from suit under § 1983 based on anything she might write or say over the years stemming from a case she earlier decided.
Second, there is an absence of sufficient corrective process in this context for a judge’s alleged retaliatory misdeeds, a factor which has played a central role in developing the jurisprudence of absolute immunity. See, e.g., McAlester v. Brown, 469 F.2d 1280, 1283 (5th Cir.1972). 4 Most immunity cases arise in temporal contexts where a judge is engaged in decisionmak-ing. Thus, our jurisprudence commonly has emphasized the correctability of unconstitutional judicial behavior on appeal, for example, as an important factor making the erasure of meritorious civil claims far less disturbing than it otherwise would be. Id.
These novel problems, although substantial, are not insurmountable for two reasons. First, although in formal terns a judge providing information to a parole board after conviction and sentence is not acting within her jurisdiction, such a temporal distinction should not defeat the substantive policy goals and systemic concerns underlying the need to immunize judges from the intimidation and harassment that may adversely affect the quality of their decisionmaking. The information properly provided to a parole board flows directly from the processes of trial, such as the taking of testimony and the admission of documentary evidence, during which time a judge and prosecutor would certainly be entitled to absolute immunity for their acts integral to the process. Pierson, 87 S.Ct. 1213 ; Imbler, 96 S.Ct. 984 . To deny immunity to the official who properly provides information after conviction that was generated during a period of time shielded by immunity “would lift form above substance.” Forrester, 108 S.Ct. at 546 .
My first point concerning the relation between temporality and substance leads directly to my second point, which concerns substance alone. I would hold that absolute immunity attaches only to the extent that the information provided to the parole board is reasonably derivative of the adjudicatory process leading to conviction and sentencing. This process includes the observation of witnesses and the defendant. Such a standard would prevent a judge or prosecutor from receiving absolute immunity for offering retaliatory opinions and observations based on information not reasonably derived from the adjudicatory process. At the same time, the standard would allow a judge or prosecutor to offer her opinions and observations reasonably derived from information generated during the adjudicatory process. Such inferences, opinions and observations surely constitute information desired by the Texas Parole Board, see Part 11(A) supra, or else the Texas legislature would have been content to have the Board rely solely on the paper record created at trial.
By utilizing the standard I have set out, judges and prosecutors would be well-protected from personal capacity suits. First, the actions of a judge or prosecutor in providing information to the Board that flows substantively from the processes of *1006 adjudication would be protected, although the judge or prosecutor would not be acting within her “jurisdiction” in a formal, temporal sense. Second, because information offered to the Board that is not reasonably derivative of the adjudicatory process would not be blanketed by absolute immunity, a judge or prosecutor could be liable under Section 1983 for retaliatory misdeeds in certain circumstances. This liability potential addresses the formal problems resulting in this context from the lack of sufficient corrective process.
Applying the standard I have discussed, one cannot determine whether the information that Johnson alleges the defendants provided in the letters was reasonably derivative of the adjudicatory process. Our circuit “demand[s] that the plaintiffs complaint state with factual detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity.” Elliott v. Perez, 751 F.2d 1472, 1473 (1985); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986) (plaintiff must state with particularity “ ‘the facts which show that official immunity does not shield ... defendants’ ”). The pro se nature of this action eases the plaintiffs burden. Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir.1986). Johnson has met this burden by specifically contending that the defendants were acting outside of their jurisdiction, citing Pierson, 87 S.Ct. 1213 , and Imbler, 96 S.Ct. 984 . Thus, I would remand this case to allow Johnson to state, according to the standards enunciated in Elliott v. Perez, 751 F.2d at 1473 , why the information allegedly provided to the parole board by the defendants was not reasonably derivative of the adjudicatory process.
In my view, the approach I have discussed meets two concerns at the core of our system of justice. First, it meets our systemic goals of protecting the integrity of the judicial and prosecutorial decision-making processes. And no less important, it leaves room for meritorious prisoner complaints that seek to vindicate rights guaranteed by the Federal Constitution.
III. Official Capacity Claim
Finally, I believe that the district court should consider on remand the official capacity claim against the prosecutor. Johnson has alleged the existence of a policy or custom in his claim against the prosecutor in his official capacity. He claims that the prosecutor is a policymaker. See Pembaur v. Cincinnati, 475 U.S. 469 , 106 S.Ct. 1292 , 89 L.Ed.2d 452 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112 , 108 S.Ct. 915 , 99 L.Ed.2d 107 (1988). The district court failed to consider this official capacity claim, holding only that Johnson has no constitutional right to parole and the defendants are absolutely immune. The majority does not remand on this claim for two reasons. First, the majority holds that the prosecutor is absolutely immune in his personal capacity. However, this immunity is immaterial to the official capacity claim. Second, the majority holds that a remand is unnecessary because the county has not been named and has not received sufficient notice of this lawsuit as required by Brandon v. Holt, 469 U.S. 464 , 105 S.Ct. 873 , 83 L.Ed.2d 878 (1985). But because the lack of notice follows from the procedural status of this case, I cannot agree that the official capacity claim should be dismissed under Brandon . The district court dismissed the complaint sua sponte under 28 U.S.C. § 1915 (d), and the complaint was not served even on the named defendants.
In light of the foregoing discussion, then, I would remand this case to the district court with instructions to (1) allow the plaintiff to state whether the information allegedly provided to the parole board was reasonably derived from the adjudicatory process; (2) consider the personal capacity retaliation claims against both defendants; and (3) consider the official capacity retaliation claim against the prosecutor.
. The Supreme Court will decide whether the standard for dismissal of pro se complaints under 28 U.S.C. § 1915 (d) is (1) whether a party bringing the action cannot make any rational argument in law or fact that would entitle her to relief; or (2) is equivalent to the standard under F.R.Civ.P. 12(b)(6). Williams v. Faulkner, 837 F.2d 304 (7th Cir.1988), cert. granted sub nom. Neitzke v. Williams, — U.S. -, 109 S.Ct. 53 , 102 L.Ed.2d 32 (1988), argued on February 22, *1000 1989, 57 U.S.L.W. 3602 (March 14, 1989). The Court’s decision would not affect this case in its present posture under my approach because no error of the district court involves the stringency of the standard for dismissal.
. The sufficiency of state law remedies in this context is unclear. One cannot assume, of course, that state law remedies would provide sufficient corrective process for any potential problems to which I refer with respect to 42 U.S.C. § 1983 .
Section 1983’s criminal analogue is 18 U.S.C. § 242 (amended in 1988 by Pub.L. 100-690 to provide additional penalties in certain classes of cases). Section 242 offers some means of controlling unconstitutional behavior, but provides insufficient corrective process in this area. See note 4 infra.
. I recognize that judges may be "inevitably more sensitive to the ill effects that vexatious lawsuits can have on the judicial function than they are to similar dangers in other contexts.” Forrester, 108 S.Ct. at 543 , citing, Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894, 2921 , 57 L.Ed. 2d 895 (1978) (Rehnquist, J., concurring in part and dissenting in part). However, I am confident that our extension of absolute immunity results from necessity, not simply from our possible parochialism.
. The criminal analogue to Section 1983 is 18 U.S.C. § 242 . See note 2 supra. Section 242 provides criminal penalties if, for example, a judge or prosecutor acting under color of state law "willfully” subjects an inhabitant of a state to the deprivation of rights protected by the Constitution and federal law. Imbler, 96 S.Ct. at 994 (discussing prosecutors); O'Shea v. Littleton, 414 U.S. 488 , 94 S.Ct. 669, 679 , 38 L.Ed.2d 674 (1974) (discussing judges). But Section 242, not surprisingly, does not provide for a private right of action. Its efficacy is therefore limited. As I note in the text, corrective process commonly lies in a plaintiffs opportunity to appeal directly from a trial court's decision. Here, in contrast, corrective process under 18 U.S.C. § 242 would lie entirely within the discretion of a governmental body, the United States Department of Justice.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478840. Public record. Not legal advice.