recognizing that decision to deny absolute immunity to Director of the Office of special Housing and Inmate Discipline responsible for hearing prisoners’ appeals might have been different if the Director could have established his independence from the hearing officers themselves
How later courts described this case
- recognizing that decision to deny absolute immunity to Director of the Office of special Housing and Inmate Discipline responsible for hearing prisoners’ appeals might have been different if the Director could have established his independence from the hearing officers themselves
- denying Selsky’s claim to absolute immunity, id. at 54, noting availability of qualified immunity “in appropriate cases,” id. at 52, and stating that in order to show entitlement to qualified immunity a “defendant must establish that he had an objectively reasonable belief that his act violated no clearly established rights,” id. at 54
- proceedings in question not adversarial in part because “[p]risoners have no right to counsel in either proceeding”
- taking judicial notice of documents and testimony filed in another action for the truth of the matters asserted therein where no party contested the accuracy of the statements, both parties relied on the information
Written by the judges who cited it.
The opinion
VAN GRAAFEILAND, Circuit Judge,
dissenting:
When Congress enacted the Ku Klux Klan Act, of which 42 U.S.C. § 1983 is a part, its principal goal was to eliminate the corrupting influence of the Klan and its sympathizers in the governments and law enforcement agencies of the Southern States. See Allen v. McCurry, 449 U.S. 90, 98 , 101 S.Ct. 411, 417 , 66 L.Ed.2d 308 (1980). Section 1983 created no substantive rights; “it merely provide[d] remedies for deprivations of rights established elsewhere.” Oklahoma City v. Tuttle, 471 U.S. 808, 816 , 105 S.Ct. 2427, 2432 , 85 L.Ed.2d 791 (1985); Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993), cert. denied, — U.S. *55 —, 114 S.Ct. 2749 , 129 L.Ed.2d 867 (1994). Congress could not have intended that pro se civil rights litigation become a “recreational activity” for long-term residents of our prisons. See James v. Quinlan, 886 F.2d 37 , 40 n. 6 (3d Cir.1989) (quoting Gabel v. Lynaugh, 835 F.2d 124 , 125 n. 1 (5th Cir.1988)). However, this is what has occurred. Thus, in Gabel , the court stated that about one appeal in every six during the preceding four months was a state prisoner’s pro se civil rights case. 835 F.2d at 125 n. 1. The following far from comprehensive tabulation of similar excessive filings in other cases is illustrative:
Case Actions by same Prisoner
Franklin v. Murphy 745 F.2d 1221 , 1231 n. 13 (9th Cir.1984) over 100
In re Green 669 F.2d 779, 781 (D.C.Cir.1981) 600-700 in 10 years
Gelabert v. Lynaugh 894 F.2d 746, 748 (5th Cir.1990) 15 appeals in 3 years
Reneer v. Sewell 975 F.2d 258, 261 (6th Cir.1992) 17 actions, 9 appeals
Visser v. Supreme Court of California 919 F.2d 113 ; 114 (9th Cir.1990) 11 in 16 months
Demos v. Kincheloe 563 F.Supp. 30, 31 (E.D.Wash.1982) 184 in 3 years
Olson v. Coleman 997 F.2d 726, 728 (10th Cir.1993) 37 appeals, 15 petitions for rehearing
Abdul-Akbar v. Watson 901 F.2d 329, 331 (3d Cir.1990) 43 in 7 years
Johnson v. Cowley 872 F.2d 342, 344 (10th Cir.1989) 54 actions, 33 appeals
Proeup v. Strickland 792 F.2d 1069, 1070 (11th Cir.1986) over 176
In re Tyler 839 F.2d 1290, 1291 (8th Cir.1988) 149
With the tremendous upsurge in section 1983 civil rights litigation came the realization that the concept of official immunity was not designed solely to protect against the personal liability of the official involved. The resources of United States Courts are limited both in time and in money. The courts are obligated, therefore, to allocate their resources in a way that promotes the interests of justice. The Supreme Court has emphasized this judicial responsibility on several occasions. In In re McDonald, 489 U.S. 180 , 109 S.Ct. 993 , 103 L.Ed.2d 158 (1989), a per curiam Court denied a pro se petitioner’s request for permission to proceed in forma pauperis in applying for a writ of habeas corpus. Citing the petitioner’s 73 unsuccessful prior filings with the Court, it said:
Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.
Id. at 184, 109 S.Ct. at 996 .
In In re Sindram, 498 U.S. 177, 179-80 , 111 S.Ct. 596, 597 , 112 L.Ed.2d 599 (1991), the Court, citing McDonald, supra, said:
As we explained, the Court waives filing fees and costs for indigent individuals in order to promote the interests of justice. The goal of fairly dispensing justice, however, is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests. Pro se petitioners have a greater capacity than most to disrupt the fair allocation of judicial resources because they are not subject to the financial considerations — filing fees and attorney’s fees— that deter other litigants from filing frivolous petitions.
In Briscoe v. LaHue, 460 U.S. 325 , 103 S.Ct. 1108 , 75 L.Ed.2d 96 (1983), which involved a section 1983 action against a police officer who allegedly gave perjured testimony, Justice Stevens, writing for six members of the Court, said:
*56 As the files in this case show, even the processing of a complaint that is dismissed before trial consumes a considerable amount of time and resources.
This category of § 1983 litigation might well impose significant burdens on the judicial system and on law enforcement resources. As this Court noted when it recognized absolute immunity for prosecutors in Imbler, if the defendant official “could be made to answer in court each time [a disgruntled defendant] charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law.” 424 U.S., at 425 [96 S.Ct. at 992]. To some degree the individual’s burden might be alleviated by the government’s provision of counsel, but a case that goes to trial always imposes significant emotional and other costs on every party litigant.
Id. at 343, 103 S.Ct. at 1119 (footnote omitted).
In Justice Rehnquist’s dissenting opinion in Cleavinger v. Saxner, 474 U.S. 193, 210-11 , 106 S.Ct. 496, 505-06 , 88 L.Ed.2d 507 (1985), he addressed squarely the issue of prisoners’ propensity to sue:
Not only may emotions run higher and tensions be exacerbated in the prison environment, but prisoners simply are not subject to many of the constraints which often deter members of the population at large from litigating at the drop of a hat. We have held, for example, that prisoners in confinement are entitled to free access to lawbooks or some other legal assistance. Bounds v. Smith, 430 U.S. 817 [ 97 S.Ct. 1491 , 52 L.Ed.2d 72 ] (1977). And the great majority of prisoners qualify for in forma pauperis status, which entitles them to relief from statutory filing fees. With less to profitably occupy their time than potential litigants on the outside, and with a justified feeling that they have much to gain and virtually nothing to lose, prisoners appear to be far more prolific litigants than other groups in the population. And prisoners have made increasing use of § 1983 and Bivens-type suits in recent years: 18,856 such suits were filed in federal court in the year ending June 30, 1984, as compared to just 6,606 in 1975.
See also Gray v. Bell, 712 F.2d 490, 496-97 (D.C.Cir.1988), cert. denied, 465 U.S. 1100 , 104 S.Ct. 1593 , 80 L.Ed.2d 125 (1984), and Robichaud v. Ronan, 351 F.2d 533, 535-36 (9th Cir.1965), where the courts listed among the reasons for awarding immunity, (1) the drain on the valuable official time of defending numerous suits, (2) the unfairness of exposing officials to vicarious liability for the acts of their subordinates, and (3) the duty of fairly representing the interests of the public in protecting and preserving the sound and orderly administration of justice. Some of these issues also were discussed by the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 422-29 , 96 S.Ct. 984, 991-94 , 47 L.Ed.2d 128 (1976).
I believe that the above reasoning mandates the dismissal of the complaint in the instant case on the ground of absolute immunity. Selsky is a professional civilian hearing officer who performs a role analogous to that of an appellate judge in that he hears prisoners’ appeals from 66 New York State prisons, with none of which he has any official connection. He hears well over 5,000 appeals a year and, at the time the instant action was brought, he was a defendant in 156 pending actions. He establishes no direct contact with prisoners or guards by participating in prisoners’ hearings as a subordinate of the warden.
Selsky’s department does, however, conduct training sessions for hearing officers in the various prisons, in which the requirements of due process are taught and emphasized. Selsky also is available to answer procedural questions asked of him by hearing examiners as they arise. When questioned about this practice, he testified “I don’t get into the specifics of the case or the inmate we are dealing with, but just maybe the issue.” Obviously, Selsky’s intent is to avoid due process violations whenever possible. This is his intent during the training sessions of hearing officers; this is his intent when responding to their inquiries; this continues to be his intent when reviewing appeals. His conduct does not constitute consulting “concerning a fact at issue in the hearing,” a *57 practice that is proscribed in Butz v. Economou, 438 U.S. 478 , 51 2914, 57 L.Ed.2d 895 (1978).
My colleagues conclude from the foregoing that Selsky may be reviewing rulings that are in essence his own. Supra, at 53. There is no evidence, however, that this occurred in the instant ease. If I am asked to assume that it did, I will assume also that Selsky made the same good-faith interpretation of due process requirements in each instance. Every appellate tribunal prescribes rules for the conduct of its subordinate bodies. They are not thus precluded from passing upon the merits of what they have prescribed.
Like Justice Scalia in Anderson v. Creighton, 483 U.S. 635 , 641-42 n. 3, 107 S.Ct. 3034 , 3040 n. 3, 97 L.Ed.2d 523 (1987), I find unpersuasive the argument often made that Selsky may be less diligent in enforcing constitutional principles because the State indemnifies him for unintentional error. Federal judges do not stray from the full-faith performance of their duties because they have lifetime appointments and absolute immunity. Selsky’s employment would be short-lived if he was comfortable in error because of his entitlement to indemnification.
Young is a paradigmatic litigious prisoner, having brought over 100, mostly frivolous, pro se proceedings, at least 60 of which required action by this Court. It is difficult to control excesses such as this by indigent prisoners who have no money and already are incarcerated. Injunctions and penalties are of little help in preventing such improper conduct. The “strong sanctions” referred to by my colleagues, supra, at 53, simply will not work if no effective punishment can be imposed upon recalcitrant prisoners.
Qualified immunity, although better than no immunity at all, is not a satisfactory solution to the problem. Qualified immunity is an affirmative defense that must be pleaded and proved by the defendant. Each paper filed with the court and each argument heard in support of this defense utilizes some portion of the court’s limited resources. In every one of the 156 actions now pending against Selsky, and in every one of the numerous pro se actions that undoubtedly will follow my colleagues’ holding, Selsky will have the burden of proving that it was objectively reasonable to conclude that the prisoner’s constitutional rights were not violated. His decisions under review will have been based in large part upon factual issues that do not lend themselves to summary adjudication. See Mahoney v. Hankin, 844 F.2d 64, 68-69 (2d Cir.1988). The immediate responsibility for the alleged violations will be that of the examiner who conducted the hearing and who concededly can claim only qualified immunity. Appellants such as Young, who seek only monetary relief, will have little to gain by suing Selsky, except whatever satisfaction they can derive from their acts of harassment. This is not the purpose for which section 1983 was enacted.