Opposition Brief — Mellas v. Walsh

Supreme Court, US.

oe i ee

No. 87-1765

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

NICHOLAS MELLAS and HARRY MARTIN (deceased),

Petitioners,

vs.

THOMAS PATRICK WALSH,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Barry Levenstam*

Joel J. Africk

Richard D. Murphy, Jr.

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Attorneys for Respondent

*Counsel of Record

QUESTIONS PRESENTED

cw Did the Seventh Circuit correctly hold that

petitioners were not entitled to qualified immunity:

(a) where petitioners waived the defense by not raising it

in their summary judgment motion and by only making obscure

references to their good faith at trial and in selected

pleadings; and (b) where the parameters of the constitu-

tional right petitioners violated were clearly established

in 1979 at the time they acted?

Eis Is the Seventh Circuit’s holding that petitioners

violated respondent’s eighth amendment rights by failing to

institute any procedures for reviewing inmate files prior to

cell placement in conflict with a Fifth Circuit decision

finding no violation where existing procedures proved

inadequate?

a{in

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . «© «© «© «© «© « «@

TABLE OF AUTHORITIES . . . . 2 « « « « «

STATEMENT OF THE CASE ....+«s<se«e

REASONS FOR DENYING THE WRIT ........ -.

Ls THE QUESTIONS PERTAINING TO QUALIFIED

IMMUNITY DO NOT MERIT THIS COURT’S

ATTENTION AND WERE DECIDED CORRECTLY BELOW .

A. The Question Whether Petitioners Waived

The Affirmative Defense Of Qualified

Immunity Does Not Merit This Court’s

Attention and Was Decided Correctly

eae ss 9 wes ee ee aa es eas

B. The Question Whether Petitioners Are

Entitled To Qualified Immunity Does

Not Merit This Court’s Attention And

Was Decided Correctly Below . cs

II. THE DECISION OF THE SEVENTH CIRCUIT DOES NOT

CONFLICT WITH THE DECISION OF THE FIFTH

CIRCUIT IN JOHNSTON V. LUCAS... °

GOLAN 61.8) ae! ea Ta Oe eee a fe ae

~iii-

TABLE OF AUTHORITIES

Cases

Anderson v. Creighton, 107 S. Ct. 3034 (1987) ..

Finney v. Arkansas Board of Correction,

S05 ©.20 196 (Gen Git. JOM) <3 kk 6 ss

Harlow v. Fitzgerald, 457 U.S. 800 (1982) ..

Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979).

~ Johnston v. Lucas, 786 F.2d 1254 (5th Cir. 1986).

Little v. Walker, 552 F.2d 193 (7th Cir. 1977),

cert. Genied, 435 U.S. 932 (1978). . « « «

McCary v. Sullivan, 509 F.2d 1332 (5th Cir. 1973),

cert. denied, 423 U.S. 859 (1975). . ... .

National Fidelity Life Insurance Co. v. Karaganis,

Sik F.26 357 (70h Cir. E9G7) 2. 3s 2 8 sh tt

Ohio Casualty Insurance Co. v. Bazzi Construction

Co., Inc., 815 F.2d 1146 (7th Cir. 2907) ». «

Procunier v. Navarette, 434 U.S. 555 (1978) ...

Spence v. Staras, 507 F.2d 554 (7th Cir. 1974).

Wade v. Hegner, 804 F.2d 67 (7th Cir. 1986) .

West v. Rowe, 448 F. Supp. 58 (N.D. Ill. 1978)

(8. 3p) eee :

Woodhous v. Commonwealth of Virginia, 487 F.2d 889

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3, 6

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No. 87-1765

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1987

NICHOLAS MELLAS and HARRY MARTIN (deceased),

Petitioners,

vs.

THOMAS PATRICK WALSH,

Respondent.

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

STATEMENT OF THE CASE

Respondent Thomas P. Walsh agrees with peti-

tioners’ recitation of the facts underlying this matter and

with petitioners’ recitation of the procedural history of

Walsh v. Brewer, 733 F.2d 473 (7th Cir. 1984) ("Walsh I"),

but disagrees with petitioners’ characterization of the

second opinion of the court of appeais in Walsh v. Mellas,

837 F.2d 789 (7th Cir. 1988) ("Walsh II"). Therefore,

respondent will only include a brief statement of the

underlying facts and will set forth his own statement of the

opinion below.

This matter arises out of the strangulation of

respondent by his cellmate, a member of a prison gang, at

Stateville Correctional Center in Joliet, Illinois. The

district court found that respondent had been targeted for

attack by prison gangs; that the risk of assault under those

circumstances was real and significant; and that petitioners

devised and operated a security system which ignored that

-2-

risk. (Pet. App. at 39.)/ Based upon its findings, the

district court awarded Walsh $2,500 as compensation for per-

sonal humiliation and mental anguish caused by the depriva-

tion of his constitutional rights. Further, the district

court awarded punitive damages of $5,000 because petition-

ers’ conduct constituted deliberate indifference to a known

hazard.

On appeal in Walsh II, petitioners argued, inter

alia, that they were entitled to qualified immunity and that

the district court failed to apply the proper eighth amend-

ment standards. The court of appeals rejected both argu-

ments. First, the court held that the petitioners had

waived the qualified immunity defense because petitioners

did not raise the issue in their summary judgment motion and

made only obscure references to the defense in selected

pleadings. The court stated that "the mere fact that an

obscure reference to defendants’ ‘good faith’ is contained

in one of the defendants’ pleadings does not suffice to

preserve that issue for appeal." (Pet. App. at 20.)

Alternatively addressing the merits of petitioners’

qualified immunity defense, the court of appeals rejected

petitioners’ argument that they were entitled to immunity.

The court held that the parameters of the constitutional

right petitioners violated were sufficiently clear in light

of prior decisional law, citing as an example, Spence v.

Staras, 507 F.2d 554 (7th Cir. 1974). Relying on Anderson v.

Creighton, 107 S. Ct. 3034 (1987), the court held that

liability may be imposed where, in light of preexisting law,

the unlawfulness of the official’s conduct is apparent.

Accordingly, petitioners could not assert that they acted in

good faith. (Pet. App. at 22-23.)

a1/ The district court initially entered a finding of no

liability. (Pet. App. at 29.) The Seventh Circuit reversed

and remanded the matter in Walsh I. (Pet. App. at 31-37.)

-3-

REASONS FOR DENYING THE WRIT

I. THE QUESTIONS PERTAINING TO QUALIFIED

IMMUNITY DO NOT MERIT THIS COURT’S

ATTENTION AND WERE DECIDED CORRECTLY BELOW.

A. The Question Whether Petitioners Waived

The Affirmative Defense Of Qualified

Immunity Does Not Merit This Court’s

Attention And Was Decided Correctly Below.

Petitioners do not dispute that the defense of

qualified immunity may be deemed waived if not properly and

timely presented to the district court. Rather, petitioners

complain that the court of appeals erred in concluding,

based upon the record established in the original trial on

the merits, the first appeal, and the proceedings on remand,

that petitioners "failed to bring the argument to the

{district] court’s attention, despite their having numerous

opportunities to do so" (Pet. App. at 19), and did not raise

it in the initial appeal. (Pet. App. at 21.) Petitioners

invite this Court to re-review the extensive record below

and second-guess the conclusion of the court of appeals.

This matter does not merit the attention of this Court.

Moreover, the court of appeals correctly concluded

that petitioners’ failure to raise qualified immunity

precluded the district court from making certain findings

and therefore constituted a waiver of the defense. The

court observed (Pet. App. at 21):

(F]actual questions may have-been impli-

cated as to which the judge made no

finding because the issue was not

directly raised and equally, where

consideration underlying a subtle legal

issue could have been exposed and

distiljJed by the district court so as to

facilitate more informed consideration

by [an appellate) court.2/

2/ Qualified immunity protects "public officials from the

‘broad ranging discovery’ that can be particularly disrup-

tive of effective government. For this reason, [this Court

has] emphasized that qualified immunity questions should be

resolved at the earliest possible stage of a litigation."

Anderson v. Creighton, 107 S. Ct. 3034, 3042 n.6 (1987),

quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982). The

(Footnote Continued)

-4-

The court of appeals properly relied upon the

decisions in Ohio Casualty Insurance Co. v. Bazzi Construc-

tion Co., Inc., 815 F.2d 1146 (7th Cir. 1986), and National

Fidelity Life Insurance Co. v. Karaganis, 811 F.2d 357 (7th

Cir. 1987), to hold that petitioners’ few obscure references

to “good faith" failed to present, and thus preserve, the

qualified immunity defense. In Ohio Casualty, the plaintiff

mentioned the exclusionary provisions of an insurance

contract in one of its memoranda but failed to explain the

significance of these provisions to the district court. 815

F.2d at 1149. In National Fidelity, the plaintiff failed to

address the significance of an issue mentioned in its

complaint. 811 F.2d at 360. In each case, the court held

that a party must "press" an issue to the district court by

explaining its relevance and significance to preserve it for

appeal; mere mention, or obscure references, do not suffice.

(Pet. App. at 19-20.)

Petitioners also argue that they were excused from

raising qualified immunity in their motion for summary

judgment because the standards for qualified immunity prior

to this Court’s decision in Harlow v. Fitzgerald, 457 U.S.

800 (1982), included a subjective good faith component that

was within the province of the jury. (Pet. at 16.) Peti-

tioners’ argument that good faith could not be decided on

summary judgment before Harlow, however, is erroneous. See,

e.g., Procunier v. Navarette, 434 U.S. 555 (1978); Henzel v.

Gerstein, 608 F.2d 654, 658-59 (5th Cir. 1979). In any

event, as the court of appeals found, petitioners’ waiver

extended beyond the summary judgment proceedings through

trial, appeal, and remand.

(Footnote Continued)

court of appeals concluded that petitioners’ delay in

pursuing qualified immunity frustrated these important

goals. (Pet. App. at 20 n.7.)

B. The Question Whether Petitioners Are Entitled To

Qualified Immunity Does Not Merit This Court’s

Attention And Was Decided Correctly Below.

Even if an adequate record had been made below

concerning the belated claims of qualified immunity, the

question petitioners would put to this Court is of no

significance beyond this case: whether the state of prece-

dent in 1979 was sufficiently clear to inform petitioners of

their constitutional obligations to respondent. This

question likewise does not merit the attention of this

Court.

Petitioners’ efforts to distinguish between their

conduct and respondent’s cause of action is unavailing, and

creates no “cert-worthy” question. As the court of appeals

noted (Pet. App. 22-23), this Court’s recent decision in

Anderson v. Creighton, 107 S. Ct. 3034, 3039 (1987), held

that an official cannot escape liability based upon qualified

immunity as long as "(t]he contours of the right" he is

alleged to have violated were sufficientiy clear so that a

reasonable official would understand that what he is doing

violates that right. As this Court observed: "This is not

to say that an official action is protected by qualified

immunity unless the very action has been held unlawful but

it is to say that in the light of preexisting law the

unlawfulness must be apparent." Id. (emphasis added;

citation omitted). See also Wade v. Hegner, 804 F.2d 67, 71

(7th Cir. 1986) (under Harlow the objective inquiry focuses

on whether the legal norms governing official’s behavior

were clearly established) .?/

3/ In Little v. Walker, 552 F.2d 193, 197 (7th Cir. 1977),

cert. denied, 435 U.S. 932 (1978), the Seventh Circuit

warned that a prison official:

cannot hide behind a claim that the

particular factual predicate in question

has never appeared in haec verba in a

reported opinion. If the application of

settled principles to this factual

tableau would inexorably lead to a

(Footnote Continued)

| een or ea

=-6-

The contours of the right of prison inmates to be

protected from inmate-on-inmate attacks were well estab-

lished before petitioners’ unlawful conduct. Deliberate

indifference to such attacks was a constitutional violation.

See, e.g., Little v. Walker, 552 F.2d 193, 197 (7th Cir.

1977), cert. denied, 435 U.S. 932 (1978); Finney v. Arkansas

Board of Corrections, 505 F.2d 194, 201 (8th Cir. 1974);

Woodhous v. Commonwealth of Virginia, 487 F.2d 889, 890 (4th

Cir. 1973). That the courts below vindicated this pre-

existing constitutional right by following a line of analy-

sis that was subsequently labelled "the identifiable group

theory" of liability does not mean that respondent’s rights,

or petitioners’ duties, were any less obvious. Given the

clear law establishing a constitutional obligation to

protect inmates from violent inmate attack, a reasonable

official would have understood that he had an obligation to

protect identifiable groups of prisoners for whom the risk

of assault is a serious problen.

Moreover, in light of preexisting law, the unlaw-

fulness of petitioners’ conduct was apparent. Anderson v.

Creighton, 107 S. Ct. at 3039. Decisional law prior to

petitioners’ deprivation of respondent’s rights indicated

that petitioners would be subject to liability if they

failed to take adequate steps to protect individuals or

identifiable groups in prison subject to the risk of assault,

even in the absence of pervasive violence. See Spence v.

Staras, 507 F.2d 554, 557 (7th Cir. 1974); West v. Rowe, 448

F. Supp. 58, 60 (N.D. Ill. 1978); McCary v. Sullivan, 509

F.2d 1332, 1334 (5th Cir. 1973), cert. denied, 423 U.S. 859

(1975).

(Footnote Continued)

conclusion of unconstitutionality, a

prison official may not take solace in

ostracisn.

am, Po

II. THE DECISION OF THE SEVENTH CIRCUIT

DOES NOT CONFLICT WITH THE DECISION

' OF THE FIFTH CIRCUIT IN JOHNSTON V. LUCAS.

Petitioners also attempt to persuade this Court to

grant the writ of certiorari by asserting that the decision

below conflicts with the Fifth Circuit’s decision in Johnston v.

Lucas, 786 F.2d 1254 (5th Cir. 1986). Johnston, however,

does not conflict with the decision belew. To the contrary,

the two courts of appeals applied the same legal standard to

determine whether the conduct of the defendant prison

officials amounted to an eighth amendment violation: did

the prison officials’ conduct constitute deliberate indif-

ference. Compare Pet. App. at 8-18 with Johnston v. Lucas,

786 F.2d at 1260.

In Johnston, the inmate plaintiff was stabbed

after a known enemy of the plaintiff was placed in the same

building with plaintiff. The district court held that

defendants violated the eighth amendment by not implementing

adequate procedures that would have prevented the stabbing.

786 F.2d at 1259-60. It premised that holding, however,

upon a finding that defendants were negligent, but not

consciously indifferent, in failing to prevent the stabbing.

The court of appeals reversed, holding that the district

court’s factual finding that the defendant prison officials

did not act with “conscious indifference" precluded finding

an eighth amendment violation. Id.

In contrast, the district court in this case found

as one of its findings of fact that the defendants before it

had acted with "deliberate indifference" to respondent’s

rights. (Pet. App. at 39.) The court of appeals held that

the eighth amendment was violated because, in spite of

petitioners’ knowledge of the risk of gang-related violence

against individuals targeted by gangs, they completely

failed to institute procedures to determine whether an

inmate to be placed in the same cell with a gang member was

targeted by the gang. (Pet. App. at 12.) Furthermore, the

court of appeals, upon careful review of the record, affirmed

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the district court’s underlying findings of fact as "not

Clearly erroneous." (Pet. App. at 14-18.) 4/

The different outcomes in Johnston and the case at

bar result from factual differences in the two cases. There

is no conflict among the circuits.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

THOMAS P. WALSH

Ps vy

By: ioe, boy Be allt

One of hig attorneys

Barry Levenstam*

Joel J. Africk

Richard D. Murphy, Jr.

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

*Counsel of Record for

Respondent

Dated: May 20, 1988

4/ Petitioners also assert, without any factual support in

the record, that the holding below "presents prison

officials with an impossible task." (Pet. at 14-15.) The

court of appeals expressly considered the increased burden

in this case, and found that such concerns were outweighed

by the real and obvious threats to human life that exist in

maximum security prisons. (Pet. App. at 16.) The court

found that any increased administrative burden upon the

prison system would be “inconsequential when compared with

the value of a proper screening process protecting human

life and curbing gang-related violence." (Id.)