Procedural means of enforcement under 42 U.S.C. 1983

Procedural means of enforcement under 42 U.S.C. 1983

Marlow, Kristina

Provisions’ Applicability and Relief. Under section 1983 of the Civil Rights Act of 1871,36 a prisoner may seek redress when a person acting under color of state law367 deprives the prisoner of rights guaranteed by the Constitution or federal laws.3068 Section 1983 is not itself a source of substantive rights, but rather it is a means of vindicating federal rights established elsewhere.3069 Section 1983 supplements available state remedies designed to vindicate violations of constitutional rights.3070

Section 1983 is not a substitute for a writ of habeas corpus. In Preiser v. Rodriguez,3071 the Supreme Court explained that a prisoner seeking damages for deprivation of constitutional or federally created rights may properly bring suit under section 1983,3072 whereas a prisoner challenging “the fact or length of his custody” must pursue his claim through a writ of habeas corpus.30’3 In Heck v. Humphrey,30’4 the Supreme Court held that if a successful section 1983 claim for damages by a prisoner would necessarily imply the invalidity of a conviction or sentence, the court must dismiss the complaint unless the plaintiff can demonstrate that his conviction has been reversed on direct appeal, expunged by executive order, invalidated by an authorized state tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus.3075

Federal district courts have jurisdiction to hear section 1983 claims under 28 U.S.C. 1343.3o76 A prisoner filing in federal court need not satisfy a jurisdictional amount.3077 Courts determine venue under the same statutory provision that applies to all civil actions.3078

28 U.S.C.A. 1915 authorizes federal courts to allow a prisoner to file claims under section 1983 in forma pauperis and without the assistance of counsel.3079

Courts hold such pro se complaints to less stringent standards than formal pleadings drafted by an attorney and liberally construe such complaints when determining whether they state a cause of action.3080 Moreover, courts are reluctant to dismiss the claim of a prisoner proceeding pro se solely on procedural grounds,3081 and they usually allow prisoners to correct deficiencies by amendment.3082 Nevertheless, as with all suits by prisoners, courts will dismiss pro se complaints if they are frivolous3083 or are malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune.3084 In addition, courts will dismiss pro se complaints if they are brought by an inmate who lacks standing.3085

Indigent prisoners seeking relief under section 1983 may petition a federal court to appoint counsel to represent them.3086 Before a court may exercise its discretion to appoint counsel, it must be satisfied that the petitioner’s claim is colorable.3087

Generally, a properly formulated section 1983 suit does not require a claimant to exhaust available state judicial or administrative remedies before seeking federal judicial relief.3088 Nonetheless, in 42 U.S.C.A. 1997e, Congress created an exception to this rule as applied to claims regarding prison conditions, mandating exhaustion of state administrative remedies.3089

Available Remedies. Federal courts may award section 1983 claimants the full range of remedies available to civil litigants. Monetary relief may include nominal,3090 compensatory,3′ and punitive damages;392 however, in order to recover for mental or emotional injury suffered while in custody, plaintiff must first establish physical injury.393 Under section 1983, the court may only impose monetary liability on persons responsible for the deprivation of rights secured by the Constitution and federal law.394 In Will v. Michigan Department of State Police,3095 the Supreme Court held that a state is not amenable to suits for damages because a state is not a person within the meaning of section 1983.306 The Court also concluded that a suit against a state official in her official capacity is “no different from a suit against the state,” and thus the Court barred such suits unless the action involves a prayer for injunctive relief.397 Despite these limitations on state liability, the Court has held that a municipality may be liable for damages under section 1983 for violations of federal law that occur pursuant to an official government policy or custom.38 An inmate’s section 1983 claim for damages against one correctional facility does not become moot because she is later transferred to another facility.30 If the facility to which the inmate is transferred continues to deprive the inmate of her rights, a federal court may also grant injunctive relief if a real and immediate threat exists that the inmate will be the victim of an unconstitutional action.310o In addition, 42 U.S.C.

1988 expressly provides that courts may award attorney’s fees to the prevailing party.3101

Affirmative Defenses. Various affirmative defenses may prevent a prisoner from obtaining relief in a section 1983 action. For example, the running of the statute of limitations normally bars a section 1983 claim.3102 Furthermore, a prisoner may release the defendants from liability by knowingly, willingly, and voluntarily agreeing not to pursue her section 1983 claim.3103 The doctrines of res judicata and collateral estoppel may also bar a section 1983 action.314

Official immunity, whether absolute or qualified, may bar a prisoner from obtaining damages under section 1983, despite the fact that section 1983 does not facially provide for official immunity.3’05 In determining which categories of official action merit absolute immunity, the Court employs a “functional approach” and looks to the nature of the official function, not to the identity of the official actor or to her employment title.316 Absolute immunity is designed to protect judicial functions;3l07 accordingly, courts have granted absolute immunity to prosecutors at trial,3108 to judges,3109 and to other officials performing judicial acts.3ll0 Even if absolute immunity is not available, government officials performing discretionary functions3’l’ “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”3112 This qualified immunity applies to the remaining official functions, particularly executive functions,3113 such as those commonly performed by prison personnel3ll4 or police officers.3115 If officials who usually perform judicial functions, such as those involved in most prosecutorial work, are instead performing functions akin to those typically performed by executive officers, such conduct merits only qualified, not absolute, immunity.3116

Immunity is a question for the court, not the jury.3117 Appellate courts review qualified immunity dispositions de novo.318 Yet, government officials entitled to assert qualified immunity may not seek immediate appeal of a district court order denying their motion for summary judgment if the order is based upon a determination that the summary judgment record raises a genuine issue of material fact.3119 Kristina Marlow

3066. 42 U.S.C. 1983 (1994). This statute provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. Id.

3067. Id. In Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), the Supreme Court enunciated a two-part test for determining whether a private individual has acted under color of state law. First, the claimed deprivation must result from the exercise of a right or privilege having its source in state authority, and second, under the facts of the instant case, the private party must be fairly characterized as a state actor. Id. at 937. But see NBC v. Communications Workers, 860 F.2d 1022, 1026 n.5 (llth Cir. 1988) (questioning whether first prong of Lugar test still exists since no subsequent Supreme Court cases have mentioned or used first prong). The Court has provided at least three examples of conduct that satisfy the “under color of” state law requirement of 1983.

First, in U.S. v. Classic, 313 U.S. 299 (1941), the Court held that “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of’ state law.” Id. at 326; accord Parratt v. Taylor, 451 U.S. 527, 535 (1981) (prison official considered state actor under 1983 when he failed to follow institutional mail procedures, thereby losing inmate’s mail-order materials), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Monroe v. Pape, 365 U.S. 167, 184-87 (1961) (police officer considered state actor under 1983 when he allegedly performed illegal search and seizure), overruled on other grounds, Monell v. Department of Social Servs., 436 U.S. 658 (1978); Eagleston v. Guido, 41 F.3d 865, 876 (2d Cir. 1994) (police department considered state actor under 1983 when it responded to victim’s domestic abuse complaints); Mark v. Borough of Hatboro, 51 F.3d 1137, 1144 (3d Cir. 1995) (volunteer fire company considered state actor under 1983 when it allegedly employed inadequate screening criteria); Laughlin v. Olszewski, 102 F.3d 190, 193 n.l (Sth Cir. 1996) (off-duty police officer hired by corporation to provide security acted under color of state law when he prevented former corporate officer from entering corporate offices by threatening arrest); Robles v. City of Fort Wayne, 113 F.3d 732, 735 n.2 (7th Cir. 1997) (off-duty police officer acted under color of law while working as private security guard); Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir. 1994) (prison officials considered state actors under 1983 when they refused to allow prisoner daily access to prison sweat lodge for prayer); U.S. v. Koon, 34 F.3d 1416, 1447-48 (9th Cir. 1994) (police officer considered state actor under 1983 when he beat motorist in police custody), aff’d in part, 116 S. Ct. 2035 (1996). But see Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 450-51 (lst Cir. 1997) (police officer on medical leave who shot and killed patron during bar fight was not acting under color of state law); Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994) (off-duty drunk police officer not considered state actor under 1983 when he used personal gun to shoot victim); Mark, 51 F.3d at 1150-51 (fire fighter not considered state actor under 1983 when he committed arson); Harris v. Rhodes, 94 F.3d 196, 197-98 (Sth Cir. 1996) (prison

maintenance worker not state actor when he punched inmate’s nose; incident occurred during horseplay and involved “purely private aim and no misuse of state authority”); Gibson v. City of Chicago, 910 F.2d 1510, 1518-19 (7th Cir. 1990) (police officer ordered not to perform police duties while on medical leave not considered state actor under 1983 when he identified himself as police officer, drew gun, informed victim that he was under arrest, and then fired fatal shot); Van Ort v. Stanewich, 92 F.3d 831, 838-40 (9th Cir. 1996) (off-duty deputy not acting under color of state law when assaulting and attempting to rob victims), cert. denied, 117 S. Ct. 950 (1997); Jojola v. Chavez, 55 F.3d 488, 494 (lOth Cir. 1995) (school custodian not considered state actor under 1983 when he sexually molested student, but complaint did not allege that custodian enticed student into classroom through use or misuse of state authority); Almand v. DeKalb County, Georgia, 103 F.3d 1510, 1513-IS (llth Cir. 1997) (police officer who allegedly raped girl after gaining access to her apartment on pretense of discussing police business, leaving apartment, and then forcibly reentering apartment did not act under color of state law when he reentered apartment), cert denied, 118 S. Ct. 411 (1997).

Second, in Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), the Court held that to act under color of state law, a defendant need not be an officer of the state; it is sufficient that she “is a willful participant in joint activity with the State or its agents.” Id. at 152 (quoting U.S. v. Price, 383 U.S. 787, 794 (1966)); see Montano v. Hedgepeth, 120 F.3d 844, 850-51 (8th Cir. 1997) (prison chaplain was not acting under color of state law but rather performing an inherently ecclesiastical function when he prohibited inmate from attending religious activities and excommunicated inmate); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1455 (lOth Cir. 1995) (private security officers not acting under color of state law when performing pat-down searches before concert at public university where no evidence that university officials jointly participated in searches). But see Street v. Corrections Corp. of America, 102 F.3d 810 (6th Cir. 1996) (warden, corrections officer and detention facility run by publicly-held corporation were acting under color of state law).

Third, the Court has held that private persons who are authorized to exercise state authority are deemed to be acting “under color of state law.” West v. Atkins, 487 U.S. 42, 54-55 (1988). In Atkins, the Court held that a private physician under contract with North Carolina to provide medical services for prisoners was acting “under color of state law.” Id. at 57; accord Conner v. Donnelly, 42 F.3d 220, 225 (4th Cir. 1994) (private physician acting under color of state law when treating prisoner under referral from prison physician); Estate of Cole by Pardue v. Fromm, 94 F.3d 254 (7th Cir. 1996) (nurses and psychiatrist acting under color of state law when pretrial detainee committed suicide on psychiatric ward), cert. denied, 117 S. Ct. 945 (1997). But cf. Rockwell v. Cape Cod Hosp., 26 F.3d 254, 257 (lst Cir. 1994) (private hospital and private physicians not acting under color of state law when they admitted mentally

ill person pursuant to state involuntary commitment statute); Ellison v. Garbarino, 48 F.3d 192, 196 (6th Cir. 1995) (same); Wade v. Byles, 83 F.3d 902, 905-06 (7th Cir.) (housing authority security guard not acting under color of state law where guard did not enjoy powers vested in state police or deputized private housing police and did not have any powers exclusively reserved to police), cert. denied, 117 S. Ct. 311 (1996). The Court has held, however, that a public defender does not act “under color of state law” when performing the traditional functions of counsel on behalf of a criminal defendant, despite the fact that the attorney derives her authority from state law. Polk County v. Dodson, 454 U.S. 312, 321 (1981); accord Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d. Cir. 1997) (court-appointed attorney not acting “under color of state law” when performing lawyer’s traditional function as counsel to criminal defendant); Harris v. Champion, 51 F.3d 901, 916 (lOth Cir. 1995) (public defender not acting under color of state law when performing traditional lawyer function as counsel to defendant in criminal proceeding). But cf Tower v. Glover, 467 U.S. 914, 919-20 (1984) (although appointed counsel in state criminal prosecution not acting under color of state law in normal course of conducting defense, one who conspires with state officials to deprive client of constitutional rights may be found to act under color of state law); Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985) (per curiam) (dictum) (although allegations that public defender conspired with judges to deprive inmate of federally protected rights may satisfy “under color of state law” requirement in 1983 action, claim dismissed because claimant did not plead conspiracy).

3068. 42 U.S.C. 1983 (1994). A 1983 action must allege a violation of federal law. City of Oklahoma City v. Tuttle, 471 U.S. 808, 817 n.4 (1985); see Pyles v. Raisor, 60 F.3d 1211, 1213 (6th Cir. 1995) (arrestee’s 1983 claim against law enforcement officer not actionable where complaint alleged violation of state law); Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996) (inmate’s 1983 claim that officer violated state law could not be construed into a claim that state law itself is unconstitutional); Brown v. Nix, 33 F.3d 951, 954 (8th Cir. 1994) (inmate’s 1983 claim against prison officials not actionable where complaint alleged violation of state statute); Boling v. Romer, 101 F.3d 1336, 1338 (lOth Cir. 1997) ( 1983 claim not actionable where inmate alleged Department of Corrections policies violate state statute and therefore addressed only state law concerns); Almand v. DeKalb County, 103 F.3d 1510 (llth Cir.) ( 1983 must not supplant state tort law; liability is appropriate solely for violations of federally protected rights), cert. denied, 118 S. Ct. 411 (1997). Mere torts committed by government

officials are not a sufficient basis for a suit under this section. See Paul v. Davis, 424 U.S. 693, 700-01 (1976) (state tort of defamation not cognizable under 1983 merely because state official committed tort); cf. Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (violations of federal statute actionable under 1983 if statute creates enforceable “rights, privileges, or immunities” and Congress has not foreclosed such enforcement in the enactment itself); Lividas v. Bradshaw, 114 S. Ct. 2068, 2083 (1994) (although Congress may exempt violations of federal statute from giving rise to liability under 1983, 1983 is presumptively available for violations of all federal law). When a person acting under color of federal authority deprives a prisoner of her constitutional rights, the prisoner may seek redress directly under the Constitution. Carlson v. Green, 446 U.S. 14, 18-19 (1980); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 396-97 (1971); see, e.g., Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir. 1997), (officials who arrested Ruby Ridge resident were entitled to qualified immunity in Bivens action alleging excess force in violation of Fourth Amendment rights, but Deputy U.S. Marshals who allegedly created and disseminated falsehoods were not), cert. denied sub nom., Smith v. Harris, 118 S. Ct. 1051 (1998).

3069. Albright v. Oliver, 114 S. Ct. 807, 811 (1994) (plurality opinion) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); accord Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) ( 1983 does not create substantive rights, but rather provides remedy for violation of rights established elsewhere in the Constitution or federal laws); Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (same). 3070. Monroe v. Pape, 365 U.S. 167, 183 (1961). 3071. 411 U.S. 475 (1973).

3072. Id. at 499 & n.14; accord Wolff v. McDonnell, 418 U.S. 539, 554-SS (1974) (prisoner’s 1983 suit for damages and injunctive relief proper when claim alleged unconstitutionality of disciplinary proceedings, inmate legal assistance program, and mail inspection regulations). But see Edwards v. Balisok, 117 S.Ct. 1584, 1587-89 (1997) (prisoner’s claim seeking damages for using wrong procedure, not for reaching wrong result, could still fail to be cognizable under 1983 if it implies invalidity of conviction or sentence, unless prisoner shows that conviction or sentence has previously been invalidated; prisoner’s claim challenging only procedures employed in disciplinary hearing was not cognizable under 1983 where it necessarily implied invalidity of good-time credits). 3073. Preiser, 411 U.S. at 500 (action seeking restoration of good-time credits improperly brought under 1983); see Clarke v. Stadler, 121 F.3d 222, 226 (5th Cir. 1997) (inmate pursuing return of good-time credits had no cause of action under 1983 where favorable determination would entitle him to accelerated release); Best v. Kelly, 39 F.3d 328, 330 (D.C. Cir. 1994) (state prisoners challenging alleged unconstitutional change in good-time credits have no cause of action under 1983). But see Carson v. Johnson, 112 F.3d 818, 820 (Sth Cir. 1997) (inmate challenging prison procedure that would affect the timing of his release properly construed as 1983 action because it would not automatically shorten inmate’s sentence).

The Supreme Court has held that Preiser does not bar a 1983 claim where an inmate seeks an injunction to require a hearing to determine whether there was probable cause for pretrial detention. Gerstein v. Pugh, 420 U.S. 103, 107-08 (1975). The Court stated that a successful claim by Gerstein would not lead to vacation of his conviction. Id. at 119; accord Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995) (arrestee’s 1983 claim for false imprisonment based on detention pursuant to arrest proper where police lacked probable cause to arrest). In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S.1 (1979), the Supreme Court did not require the exhaustion of state habeas remedies and addressed the merits of a 1983 claim which challenged the constitutionality of a state’s parole-release determination procedures. 3074. 114 S. Ct. 2364 (1994).

3075. Id. at 2372. The Supreme Court emphasized in Heck that it was not adding a state exhaustion requirement to 1983, but rather it was denying the existence of a cause of action when a 1983 claim challenged a conviction or sentence. Id. at 2373; see Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir. 1994) (inmate’s 1983 claim for damages against defense counsel and law enforcement officers properly dismissed where successful claim would call conviction into question); cf. Leonard v. Nix, SS F.3d 370, 373 (8th Cir. 1995) (inmate challenging legality of conviction must file successful habeas petition as prerequisite to 1983 claim); Fottler v. U.S., 73 F.3d 1064, 1065 (lOth Cir. 1996) (dismissal without prejudice required when prisoner’s pro se 1983 action dismissed as frivolous under Heck; if later successful in overturning conviction, 1983 action allowed at that time). Compare White v. Gittens, 121 F.3d 803, 806-807 (lst Cir. 1997) (parolee’s 1983 claim challenging parole revocation was not actionable because revocation had not been reversed, expunged, set aside, or called into question); Hudson v. Hughes, 98 F3d 868, 872-873 (Sth Cir. 1996) (inmate could not maintain 1983 action alleging false arrest and excessive force where action would render inmate’s conviction invalid); Stone-Bey v. Barnes, 120 F.3d 718, 721-22 (7th Cir. 1997) (inmate’s claim that his Due Process rights were violated by one-year disciplinary segregation term was barred under Heck v. Humphrey where prison disciplinary judgment had not been previously overturned, and inmate’s claims would necessarily imply its invalidity); Sheldon v. Hundley, 83 F.3d 231, 233-34 (8th Cir. 1996) (inmate could not bring claim under 1983 alleging disciplinary ruling revoking good-time credits violated First Amendment before invalidating disciplinary ruling); Williams v. Schario, 93 F.3d 527 (8th Cir. 1996) (inmate could not bring claim under 1983 alleging malicious prosecution without challenging conviction or sentence) and Crawford v. Barry, 1996 WL 734096, at *2 (D.C. Cir. 1997) (inmate’s 1983 claim seeking damages for parole board’s reliance on “inaccurate” sentence calculation not actionable unless conviction or confinement invalidated in separate proceding) with Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (inmate claim challenging prison procedure under Double Jeopardy and Ex Post Facto clauses that would affect the timing of his release properly construed as 1983 action where it would merely enhance his eligibility for accelearted release and would not automatically shorten his sentence); Hamilton v. Lyons, 74 F.3d 99, 103 (Sth Cir. 1996) (detainee could bring claim under 1983 alleging conditions of confinement in city jail violated Constitution where claims were unrelated to validity of subsequent convictions and sentences); Simpson v. Rowan, 73 F.3d 134, 136 (7th Cir. 1995) (prisoner could bring claim under 1983 for illegal search or arrest since illegal search or arrest may be followed by valid conviction), cert. denied, 117 S. Ct. 104 (1996) and Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam) (prisoner could bring claim under 1983 alleging use of excessive force as success would not necessarily imply invalidity of conviction; claims for arrest without probable cause and unfounded charges, however, imply validity of conviction and are therefore barred).

3076. 28 U.S.C. 1343(a)(3)-(4) (1994); accord Maher v. Gagne, 448 U.S. 122, 129 n.ll (1980) (federal district courts have original jurisdiction over 1983 claims only when substantive right allegedly

violated is secured by Constitution or federal statute providing for civil rights); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 602-03 & n.l (1979) (federal district courts have original jurisdiction over 1983 claims). A state court that has jurisdiction over state law actions similar to 1983 may not decline to entertain a 1983 action in the absence of a “valid excuse.” Howlett v. Rose, 496 U.S. 356, 369-70 (1990). Although the Court in Howlett did not delineate a list of “valid excuses,” it did note that on each of the three occasions in which the Court found an excuse to be valid, the excuse “involved a neutral rule of judicial administration,” such as lack of personal jurisdiction or forum non conveniens. Id. at 374.

3077. 28 U.S.C. 1343(a)(3)-(4) (1994); see also id. 1331.

3078. Id. 1391(b). A party seeking redress in federal court under 1983 may file only in the judicial district where all the defendants reside or in which a substantial part of the events giving rise to the claim occurred. Id. If there is no judicial district in which the action may otherwise be brought, the action can be brought in any judicial district in which any defendant may be found. Id. 3079. 28 U.S.C.A. 1915(a)-(h) (West Supp. 1997). Under the 1996 amendments, whenever the prisoner’s funds are insufficient to pay the full filing fee, courts are required to assess an initial partial filing fee of 20 percent of the greater of (1) average monthly deposits to prisoner’s account, or (2) average monthly balance in prisoner’s account for prior six-month period. Thereafter, the prisoner must make monthly payments of 20 percent of the preceding month’s income credited to prisoner’s account. The

agency having custody of the prisoner must forward payments from the prisoner’s account to the clerk of court each time the amount in the account exceeds $10 until the filing fees are paid. See Leonard v. Lacy, 88 F.3d 181, 186 (2d Cir. 1996) (obligation for filing fees under newly amended law imposed prior to any assessment of frivolousness of appeal on motion to proceed in forma pauperis; applies to both filing fee and docketing fee required for commencement of appeal). Nonetheless, under no circumstances can a prisoner who has no means to pay initial filing fee be prevented from filing suit. 28 U.S.C.A. 1915(b) (West Supp. 1997).

Additionally, courts are now required to determine whether a prisoner has, on three or more occasions, while incarcerated, brought an action or appeal in a federal court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted. If so, the prisoner’s new action must be dismissed unless he or she is in imminent danger of serious physical injury. Id. 1915(g).

Only natural persons may qualify for treatment in forma pauperis under 28 U.S.C. 1915. An artificial entity, such as an association of inmates, is not a person under 1915, and therefore may not proceed in forma pauperis in a 1983 suit against state correction officers. Rowland v. California Men’s Colony, 506 U.S. 194, 199-209 (1993).

3080. Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam) (pro se complaint should not be dismissed for failure to state claim unless it appears beyond doubt that plaintiff can prove no facts in support of claim that would entitle him to relief); see Whitney v. State of New Mexico, 113 F.3d 1170, 1173-1175 (lOth Cir. 1997) (court erred by failing to construe liberally, and consequently dismissing,

plaintiff’s 1983 claim but correctly dismissed other claims as court will not supply additional factual allegations or construct legal theories on pro se plaintiff’s behalf); Hulsey v. Owens, 63 F.3d 354, 355 n.2 (5th Cir. 1995) (per curiam) (court liberally construed pro se prisoner’s brief challenging his parole revocation as alleging that parole board members are not immune); Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 554-56 (7th Cir. 1996) (where inmate faced difficulties due to his incarceration in identifying culpable individuals, court had special responsibility to construe pro se conmplaints liberally, allow ample opportunity to amend, and permit adjudication on merits rather than dismiss on technical grounds); Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (inmate’s retaliation complaint, even liberally construed, failed to state claim because it did not allege defendants were involved in previous litigation brought by inmate and failed to allege sufficient facts upon which retaliatory animus could be inferred); May v. Baldwin, 109 F3d 557, 565 (9th Cir.) (inmate’s 1983 claim alleging confinement to disciplinary segregation unit violated constitutional rights lacked merit, even construed broadly), cert. denied, 118 S. Ct. 312 (1997); Gaylor v. Does, 105 F.3d 572, 574 (lOth Cir. 1997) (court liberally construed detainee’s pleadings claim that his Due Process rights were violated by city’s failure to inform him of bail statutes in finding that material issues of fact precluded summary judgment against detainee). 3081. Compare Lucas v. Miles, 84 F3d 532, 534 (2d Cir. 1996) (court erred in dismissing pro se complaint where court-ordered supplemental complaint filed past 60-day deadline when supplemental complaint met with court order in all other regards and all defendants answered without objecting to tardiness); Murphy v. Kellar, 950 F.2d 290, 293 (5th Cir. 1992) (court erred in dismissing case for failure to identify defendants when discovery could facilitate identification); Casteel v. Pieschek, 3 F.3d 1050, 1055 (7th Cir. 1993) (court erred in dismissing complaint for failure to prosecute when pro se prisoner failed to comply with court order to sign pleadings and failed to notify court of address change); Holloway v. Lockhart, 792 F.2d 760, 761-62 (8th Cir. 1986) (court erred in dismissing complaint on defendant’s motion to dismiss where court did not judge motion solely on the face of plaintiff’s complaint and instead improperly considered defendant’s defenses); Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988) (court erred in failing to provide pro se claimant with fair notice of requirements of summary judgment rule before granting defendant’s motion for summary judgment) and Dean v. Barber, 951 F.2d 1210, 1213 (llth Cir. 1992) (court erred in granting summary judgment without ruling on plaintiff’s motion to compel discovery because summary judgment inappropriate without adequate opportunity for discovery) with Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir. 1997) (prisoner’s pro se complaint of sexual abuse by corrections officer failed to state an Eighth Amendment claim under 1983 because alleged abuse, consisting of verbal harassment and touching, was not serious enough to constitute cruel and unusual punishment); Biliski v. Harborth, 55 F.3d 160, 162 (Sth Cir. 1995) (per curiam) (court did not abuse discretion in dismissing inmate’s 1983 claims alleging jail officials interfered with his right of access to courts and First Amendment rights when claims not included in complaint and claims either conclusory or not supported by adequate allegation of resulting prejudice); Williams v. Browman, 981 F.2d 901, 903-04 (6th Cir. 1992) (court did not abuse discretion in entering summary judgment against pro se prisoner despite argument that prisoner unaware of right to file responsive material; pro se

prisoner need not be advised of right to file responsive material, or that failure to respond might result in entry of summary judgment against him) and Edgington v. Missouri Dep’t of Corrections, 52 F.3d 777, 780 (8th Cir. 1995) (court did not abuse discretion in dismissing pro se complaint without prejudice for failure to comply with pretrial orders).

3082. Compare Forte v. Sullivan, 935 F.2d 1, 3 (Ist Cir. 1991) (per curiam) (court erred in dismissing pro se complaint as frivolous under 1915(d); court should have provided opportunity to amend complaint to include defendant in her individual capacity); Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 34-35 (2d Cir. 1996) (court erred in dismissing pro se complaint where inmate mistakenly failed to name individual corrections officers; after appropriate discovery, inmate may move for leave to amend complaint); Hamilton v. Leavy, 117 F.3d 742, 749 (3d Cir. 1997) (court erred when it refused to permit prisoner bringing pro se 1983 action to amend his complaint to add new defendants); Morin v. Caire, 77 F.3d 116, 121 (5th Cir. 1996) (court erred in dismissing pro se complaint as frivolous where plaintiffs’ initial complaint pleaded only conclusions; court should have ordered plaintiffs to file either statement of facts or reply to defendant’s assertion of qualified immunity); Donald v. Cook County Sheriff’s Dep’t., 95 F.3d 548, 554-55 (7th Cir. 1996) (court erred in dismissing pro se complaint where complaint clearly alleged facts sufficient to state cruel and unusual punishment claim for heart attack resulting from police officer’s denial of heart medication; court failed to construe complaint liberally or to provide ample opportunity to amend) and Lucas v. Department of Corrections, 66 F.3d 245, 248-49 (9th Cir. 1995) (court erred in dismissing pro se complaint where amendment would cure defect; court shall give specific notice of complaint’s deficiencies and opportunity to amend) with Rockwell v. Cape Cod Hosp., 26 F.3d 254, 260-61 (Ist Cir. 1994) (pro se complaint properly dismissed when failure to state claim would not be cured by amendment, and Pilgrim v. Littlefield, 92 F3d 413, 415-16 (6th Cir. 1996) (prisoners’ 1983 claim of inadequate access to courts was properly dismissed, even though prisoners were pro se litigants, because prisoners were given opportunity to remedy deficiencies, but failed to do so).

3083. 28 U.S.C.A. 1915(e) (West Supp. 1997). Section 1915(e) “accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint’s factual allegation and dismiss those claims whose factual contentions are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Claims are frivolous if the facts alleged are “clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). Courts need not accept the

facts alleged without question. Id. at 32. The standard of review for frivolous claims is “abuse of discretion.” Id. at 33. Compare Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (pro se complaint alleging constitutional violations by prison officials properly dismissed as frivolous when defense that appears on face of complaint based on indisputably meritless legal theory); Deutsch v. U.S., 67 F.3d 1080, 1091-92 (3d Cir. 1995) (pro se complaint against prison officials for $4.20, cost of pens allegedly taken by defendants, “trivial” and properly dismissed as “frivolous”; reasonable paying litigant would not file claim); Brock v. Angelone, 105 F.3d 952, 953-54 (4th Cir. 1997) (pro se complaint alleging pancake syrup served in prison contained dangerous ingredient properly dismissed as frivolous); Norton v. Dimazana, 122 F.3d 286, 291 (Sth Cir. 1997) (pro se complaint alleging prison officials were deliberately indifferent to his serious medical needs properly dismissed as frivolous when records indicated he received extensive medical care from prison officials, and hence claim lacked an arguable basis in law or in fact); Talley v. Lane, 13 F.3d 1031, 1033, 1035 (7th Cir. 1994) (pro se complaint against housing authority alleging denial of housing based on plaintiff’s criminal record properly dismissed as frivolous where no argument in fact or law could support plaintiff’s claim; district court’s failure to explain reason for dismissal constituted harmless error) and McWilliams v. State of Colorado, 121 F.3d 573 (lOth Cir. 1997) (pro se complaint against governor for allegedly signing ex post facto parole law into effect was duplicative of prisoner’s earlier action and hence properly dismissed as frivolous) with Neitzke, 490 U.S. at 328 (in forma pauperis complaint failing to state claim not automatically frivolous so as to warrant sua sponte dismissal when complaint raises an arguable question of law); Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (pro se complaint alleging violation of First Amendment rights improperly dismissed as frivolous when prison officials prohibited possession of noncommercial nude photos); Hicks v. Garner, 69 F.3d 22, 25-26 (5th Cir. 1995) (pro se complaint alleging that prison grooming regulations violated Religious Freedom Restoration Act improperly dismissed as frivolous where standards of Act undefined and court could not conclude that claim lacked arguable basis in law); Brooks v. Seiter, 779 F.2d 1177, 1181 (6th Cir. 1985) (pro se complaint alleging deprivation of mail order materials improperly dismissed as frivolous where complaint stated colorable claim of First Amendment violation); Hutchinson v. Spink, 126 F.3d 895, 900 (7th Cir. 1997) ( 1983 complaint by mother for death of son in foster care not frivolvous or malicious where facts could be presented that would give rise to right to relief); Hake v. Clarke, 91 F.3d 1129, 1131 (8th Cir. 1996) (court erred in conducting frivolousness review under 28 U.S.C. 1915(d) after inmate had paid filing fee although inmate had originally filed complaint against

corrections officials in forma pauperis); Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (pro se complaint alleging unsanitary conditions at prison constituted cruel and unusual punishment not frivolous even though allegation “highly improbable” because arguable question of fact exists); Fratus v. DeLand, 49 F.3d 673, 676 (lOth Cir. 1995) (pro se complaint improperly dismissed as frivolous on ground that time-barred where court unclear when plaintiffs cause of action accrued) and Johnson v. Gibson, 14 F.3d 61, 64 (D.C. Cir. 1994) (per curiam) (pro se complaint improperly dismissed as frivolous where police allegedly destroyed pornographic photographs belonging to petitioner).

3084. 28 U.S.C.A. 1915(e) (West Supp. 1997). This review shall be performed before docketing if feasible. Id. 1915A; see Allen v. Coughlin, 64 F.3d 77, 81 (2d Cir. 1995) (pro se complaint challenging seizure of newspaper clippings as due process and equal protection violations properly dismissed on grounds of qualified immunity of state corrections officials); Curtis v. Bembenek, 48 F.3d 281, 284, 288 (7th Cir. 1995) (pro se complaint alleging police officer gave perjured testimony during preliminary hearing and pretrial suppression hearing properly dismissed when officer entitled to absolute immunity from liability under 1983 for damages caused by his testimony); Atkinson v. Bohn, 91 F.3d 1127, 1128-29 (8th Cir. 1996) (pro se complaint alleging retaliation properly dismissed for failure to state a claim where prisoner did not allege that defendants were involved in or affected by his previous litigation, and failed to allege facts to support retaliatory animus); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc) (pro se complaint properly dismissed when amendment could not overcome judicial and prosecutorial immunities despite fact that pro se complaints held to lesser standard).

3085. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985) (pro se prisoner lacked standing to bring claims alleging mistreatment of fellow prisoners when no personal injury alleged); Darring v. Kincheloe, 783 F.2d 874, 877-78 (9th Cir. 1986) (pro se prisoner lacked standing to challenge institutional order on ground that it violated other inmates’ rights when no legally cognizable injury alleged by plaintiff); Harris v. Evans, 20 F.3d 1118, 1121 (llth Cir. 1994) (pro se prisoner lacked standing to assert First Amendment rights of prison guards with regard to prison policy prohibiting employees from communicating directly with parole board on behalf of prisoners when prisoner’s and guards’ interests not aligned and guards able to protect own rights). 3086. 28 U.S.C. 1915(d) (1994).

3087. Id. Compare Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991) (appointment of counsel appropriate when plaintiff presented colorable claim of deliberate indifference to serious medical needs resulting in permanent deformities); Sours v. Norris, 782 F.2d 106, 107 (8th Cir. 1986) (per curiam)

(appointment of counsel appropriate when 1983 claim that prisoner transferred in violation of Interstate Corrections Compact not malicious or frivolous, as evidenced by claim’s survival of motion to dismiss) and McCarthy v. Weinberg, 753 F.2d 836, 838-39 (lOth Cir. 1985) (per curiam) (appointment of counsel appropriate when pro se prisoner suffering from severe physical handicaps presented colorable claim that doctor failed to provide physical therapy and medication to treat prisoner’s multiple sclerosis) with Pedraza v. Jones, 71 F.3d 194, 197-98 (Sth Cir. 1995) (appointment of counsel inappropriate despite plaintiff’s claim of “exceptional circumstances,” where record showed plaintiff ably representing himself); Childs v. Pellegrin, 822 F.2d 1382, 1384-85 (6th Cir. 1987) (appointment of counsel inappropriate for claim asserting denial of access to courts when prisoner given opportunity to review facts of case before trial judge and court determined claim lacked merit) and Zarnes v. Rhode, 64 F.3d 285, 288-89 (7th Cir. 1995) (appointment of counsel inappropriate where pleadings indicated detainee understood elements of claims and authority, and detainee able to investigate facts surrounding pretrial detainment despite incarceration in another state).

In determining the appropriateness of appointing counsel, the circuit courts also consider the complexity of the legal and factual issues involved. Compare Cookish v. Cunningham, 787 F.2d 1, 4 (Ist Cir. 1986) (per curiam) (court properly denied appointment of counsel for indigent civil litigant when claims did not involve difficult or complex legal or factual issues); Jackson v. Cain, 864 F.2d 1235, 1242 (Sth Cir. 1989) (court properly denied appointment of counsel in prisoner’s 1983 case when case not particularly complex and prisoner proved capable of self-representation); Zanes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995) (court properly denied appointment of counsel in inmate’s 1983 action when inmate’s claims not so complex as to indisputably require counsel; however, court did appoint counsel on appeal); Edgington, 52 F.3d at 780 (court properly denied appointment of counsel in inmate’s 1983 claim when factual and legal issues discernable from inmate’s pleadings not complex and pleadings indicated inmate’s basic ability to state claims); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (court did not err in denying inmate’s request for counsel, reh’g en banc granted, 122 F.3d 39 (1997);

Lucero v. Gunter, 52 F.3d 874, 878 (lOth Cir. 1995) (court properly denied appointment of counsel in inmate’s pro se 1983 claim when record amply demonstrated plaintifFs ability to present own case) and Wahl v. McIver, 773 F.2d 1169, 1172-74 (llth Cir. 1985) (per curiam) (court properly denied appointment of counsel when essential facts of case and legal doctrines of immunity, mootness, and acting under color of state law ascertainable to inmate without assistance of counsel) with Hendricks v. Coughlin, 114 F.3d 390, 393, 395 (2d Cir. 1997) (court’s automatic denial of inmate’s request for appointment of counsel on ground that case not survived dispositive motion was abuse of discretion under 1915(e)). The Ninth Circuit requires a demonstration of both the “likelihood of success and the complexity of legal issues involved.” Burns v. County of King, 883 F.2d 819, 824 (9th Cir. 1989). Several circuits have indicated that appointment of counsel in 1983 claims is appropriate only in “exceptional circumstances.” See Cookish, 787 F.2d at 2 (court did not abuse discretion in denying appointment of counsel given that prisoner’s claim did not present “exceptional circumstances”; in determining whether exceptional circumstances exist, courts should consider complexity of case, ability of indigent to bring case, merits of claim, and chance of claim’s success); Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975) (court did not abuse discretion in denying appointment of counsel given lack of exceptional circumstances); Ulmer v. Chancellor, 691 F.2d 209, 213 (Sth Cir. 1982) (appointment of counsel appropriate only in exceptional circumstances; on remand, district court should consider complexity of case, indigent’s ability to represent himself, indigent’s ability to investigate case, and possibility of conflicting testimony requiring skill in presentation of evidence and in cross-examination); Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993) (court did not abuse discretion in denying appointment of counsel given lack of exceptional circumstances); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam) (same); Fowler v. Jones, 899 F.2d 1088, 1096 (llth Cir. 1990) (court did not abuse discretion in denying appointment of counsel; exceptional circumstances not demonstrated where factual and legal issues not novel or complex and where litigant capable of self-representation). But see Tabron v. Grace, 6 F.3d 147, ISS-58 (3d Cir. 1993) (court erred in requiring “exceptional circumstances” to justify appointment of counsel to represent indigent prisoner; district court has discretion to appoint counsel based on merits of plaintiff’s claim, plaintiff’s ability to present case, complexity of legal issues, likelihood that witness credibility will be at issue in case, and need for expert witnesses). The indigent plaintiff also may need to demonstrate reasonable attempts to secure counsel on her own as a prerequisite to the court’s consideration of a 1915(d) motion. See Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992).

The Supreme Court has held that 28 U.S.C. 1915(d) does not authorize a federal court to compel an attorney to represent an indigent litigant in a civil proceeding. Mallard v. U.S. Dist. Court, 490 U.S. 296, 301-07 (1989).

3088. Patsy v. Board of Regents, 457 U.S. 496, 516 (1982); see Edwards v. Balisok, 117 S.Ct. 1584, 1587-89 (1997) (court erred in staying 1983 action while prisoner exhausted state remedies in seeking restoration of his good-time credits); Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985) (prisoner need not exhaust state remedies when claiming prison officials violated due process rights by not according adequate hearing before final disciplinary decision); Georgevich v. Strauss, 772 F.2d 1078, 1085-87 (3d Cir. 1985) (prisoners need not exhaust state remedies when challenging state parole statute on equal protection grounds); Talbot v. Lucy Corr Nursing Home, 118 F.3d 215, 220 (4th Cir. 1997) (resident was not required to exhaust state administrative remedies before bringing 1983 claim alleging nursing home violated resident rights provisions of Medicare Act); Sisk v. CSO Branch, 974 F.2d 116, 117-18 (9th Cir. 1992) (prisoners need not exhaust state remedies before bringing 1983 action alleging defendants violated inmates’ due process and equal protection rights, even though disciplinary actions involved reduction of good-time credits, because relief sought would not directly impact sentences served); Herrera v. Harkins, 949 F.2d 1096, 1097-98 (lOth Cir. 1991) (prisoner need not exhaust state remedies when seeking injunctive or declaratory relief under 1983 to correct constitutionally defective parole procedures); Gwin v. Snow, 870 F.2d 616, 624 (llth Cir. 1989) (prisoner need not exhaust state remedies when challenging parole board’s alleged consideration of race as factor in its parole decisions). But see Reid v. New Hampshire, 56 F.3d 332, 341 (lst Cir. 1995) (plaintiff’s claim alleging arrest without probable cause may not be redressed under 1983 where state law recognizes common law torts of false arrest and criminal prosecution; claimant filing procedural due process claim under 1983 must exhaust state remedies where adequate state remedy exists).

The exhaustion requirement for habeas corpus relief is discussed in HABEAS RELIEF FOR STATE PRISONERS and HABEAS RELIEF FOR FEDERAL PRISONERS in Part V.

3089. 42 U.S.C.A. 1997e(a) (West Supp. 1997).

3090. See Edwards v. Balisok, 117 S. Ct. 1584, 1587 (1997) (prisoner entitled to recover at least nominal damages under 1983 if he proves that hearing which resulted in deprivation of good-time credits was a violation of procedural due process, even if he cannot prove that depriving him of good-times credits was wrong); see also Santiago v. Garcia, 821 F.2d 822, 829 (Ist Cir. 1987) (inmate entitled to nominal damages for constitutional injury when unable to prove actual damages for emotional distress); Haywood v. Koehler, 78 F.3d 101, 105 (2d Cir. 1996) (plaintiff entitled to nominal damages of $1 in excessive force claim; jurors resolved conflicting testimony to find excessive force did not result in compensable injuries); Carter v. Burch, 34 F.3d 257, 266 (4th Cir. 1994) (plaintiff entitled to only nominal damages for police officer’s failure to disclose exculpatory evidence even though plaintiff had shown undisputed evidence of over two million dollars in damages for lost income due to incarceration and expenses caused by conviction); Briggs v. Marshall, 93 F.3d 355, 360-61 (7th Cir. 1996) (plaintiff entitled to only nominal damages where jury concluded that injuries caused by reasonable, not excessive, force); Howard v. Barnett, 21 F.3d 868, 873 (8th Cir. 1994) (prisoner entitled to nominal damages for use of excessive force by prison officials when injury lacks monetary value or insufficient to justify with reasonable certainty more substantial measure of damages); Floyd v. Laws, 929 F.2d 1390, 1401 (9th Cir. 1991) (victim entitled to nominal damages when constitutional violation established but no actual damages).

3091. See Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986) (compensatory damages awarded only for actual injuries; abstract value of violated constitutional rights cannot form basis for 1983 damages). Compare Mathie v. Fries, 121 F.3d 808, 813 (2d Cir. 1997) (compensatory

damage award of $250,000 upheld where evidence supported finding that pretrial detainee’s posttraumatic stress disorder resulted partially from prison official’s sexual abuse and assault); Bolden v. Southeastern Pa. Transp. Auth., 21 F.3d 29, 33-34 (3d Cir. 1994) (jury award of $25,001 as compensation for emotional distress caused when employer required employee to undergo unconstitutional drug test upheld); Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir. 1987) (jury award of $900,000 as compensation for police brutality upheld); Hale v. Fish, 899 F.2d 390, 403 (5th Cir. 1990) (court award of compensatory damages for arrest without probable cause upheld); Chatman v. Slagle, 107 F.3d 380, 385 (6th Cir. 1997) ($8,500 award in compensatory damages against officer upheld when arrestee testified that illegal search and arrest left him nervous, restless, and unable to sleep); Graham v. Satkoski, 51 F.3d 710, 713-14 (7th Cir. 1995) (court award of $550 as compensation for pain and suffering experienced as result of prison officials’ failure to treat prisoner’s scalp condition and confiscation of newspapers, mail, and portable radio upheld); Coleman v. Rahija, 114 F.3d 778, 787 (8th Cir. 1997) (compensatory damage award of $1,000 upheld when inmate who had given premature birth suffered mental anguish and physical pain as a result of prison nurse’s delay in transferring inmate to hospital) and Jolivet v. Deland, 966 F.2d 573, 577 (lOth Cir. 1992) (court award of $250 as compensation for emotional distress caused by interception of inmate’s personal mail upheld) with O’Connor v. Huard, 117 F.3d 12, 18 (Ist Cir. 1997) (affirming jury’s refusal to award compensatory damages to pretrial detainee where detainee offered evidence related to his mental and emotional suffering endured as result of correction officer’s action, but no evidence of economic damages), cert. denied, 118 S. Ct. 691 (1998); Bender v. City of New York, 78 F.3d 787, 793 (2d Cir. 1996) (jury award of $300,700 in compensatory damages, on finding that plaintiff arrestee was subjected to false arrest, malicious prosecution, battery, and intentional infliction of emotional distress in civil rights action against police officers, was “excessive” and was likely to have been artificially inflated by duplication of awards among causes of action and among defendants); Dunn v. Denk, 79 F.3d 401, 403 (Sth Cir.) (jury awarded no compensatory damages despite finding of excessive force; aggravation of old injury was attributable not to excessive force but reasonable force of handcuff ng plaintiff’s hands behind his back), cert. denied, 117 S. Ct. 61 (1996) and Bailey v. Andrews, 811 F.2d 366, 375-76 (7th Cir. 1987) (jury award of $80,000 excessive in 1983 claim against police officer for illegal arrest when plaintiff suffered only scratched boots, torn pants, and bent glasses and submitted no bills for medical or psychological treatment).

3092. See Smith v. Wade, 461 U.S. 30, 51 (1983) (punitive damage award proper in 1983 case involving “reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law”). Compare O’Neill v. Krzeminski, 839 F.2d 9, 13-14 (2d Cir. 1988) (punitive damage award of $185,000 proper in 1983 civil rights action against police officers who denied plaintiff medical attention after breaking his nose when using excessive force); Cooper v. Dyke, 814 F.2d 941, 943-48 (4th Cir. 1987) (punitive damage award proper when police ignored boy’s pleas for nearly two hours before obtaining medical assistance for boy’s gunshot wounds); Hill v. Marshall, 962 F.2d 1209, 1217 (6th Cir.

1992) (punitive damage award proper against prison officials for deliberate indifference to prisoner’s medical needs); Cooper v. Casey, 97 F.3d 914, 919-20 (7th Cir. 1996) (punitive damages proper when prison guards beat inmates and deliberatly refused medical assistance for resulting injuries); Estate of Davis v. Delo, 115 F.3d 1388, 1396 (8th Cir. 1997) (punitive damage award of $5,000 proper in excessive force claim when there was evidence of malicious intent in correctional officer’s beating of unresisting, restrained inmate and in later taunting and threatening inmate) and Kelly v. Curtis, 21 F.3d 1544, 1557 (llth Cir. 1994) (punitive damage award proper when plaintiff’s constitutional rights violated, even absent showing of actual loss by plaintiff) with O’Connor v. Huard, 117 F.3d 12, 18 (lst. Cir. 1997) (corrections officer’s conduct in intentionally provoking pretrial detainee into “rage attacks” did not constitute such malicious intent, reckless disregard, or callous indifference that jury was unreasonable in failing to award punitive damages); Cornell v. Woods, 69 F.3d 1383, 1391 (8th Cir. 1995) (punitive damage award improper where allegedly improper conduct in transferring inmate in retaliation for exercise of First Amendment right not egregiousness enough to justify punitive damages) and Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1995) (punitive damage award of $100,000 against defendants in official capacities improper because such claim against county protected by immunity). Punitive damages may be limited so that they “are not grossly out of proportion to the severity of the offenses and have some understandable relationship to compensatory damages.” Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 22 (1991); accord Mathie v. Fries, 121 E3d 808, 816-17 (2d Cir. 1997) (punitive damages of $500,000 excessive; even where award not beyond constitutional limit imposed by the Due Process clause, appellate court has responsibility to compare awards in similar cases to determine whether award is so high as to shock judicial conscience and constitute denial of justice); Larez v. City of Los Angeles, 946 F.2d 630, 639 (9th Cir. 1991) (punitive damages up to 300 times greater than compensatory damages not excessive when “tailored to the degree of harm” each plaintiff suffered); Hutchinson v. Stuckey, 952 F.2d 1418, 1422 (D.C. Cir. 1992) (jury should be permitted to consider amount of actual damage in calculating punitive damage award). But cf Davis v. Locke, 936 F.2d 1208, 1214 (llth Cir. 1991) (punitive damage award proper even without actual loss). 3093. 42 U.S.C.A. 1997e(e) (West Supp. 1997). 3094. 42 U.S.C. 1983 (1994). 3095. 491 U.S. 58 (1989).

3096. Id. at 64-70; see Hale v. Arizona, 967 E2d 1356, 1370 (9th Cir. 1992) (private profit-oriented commercial enterprise operating with prison labor not considered “arm of the state” and therefore subject to suit under 1983). But cf. Bolden v. Southeastern Pa. Transp. Auth., 953 F.2d 807, 830 (3d Cir. 1991) (en banc) (regional transportation authority considered “person” under 1983 but also analogous to municipality for purposes of 1983, and therefore immune from punitive damages). The holding in Will has its roots in the Eleventh Amendment, which prohibits a suit in federal court against a nonconsenting state or against a state official when relief is in fact against the state. 491 U.S. at 66; see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (Eleventh Amendment bars suit in federal court against nonconsenting state when relief in fact against state and not against individual state official). The scope of immunity from 1983 actions is a question of federal law that the states cannot override. Howlett v. Rose, 496 U.S. 356, 374-75 (1990); see Martinez v. California, 444 U.S. 277, 284 & n.8 (1980) (California statute immunizing public entities and employees from liability for parole release decisions preempted by 1983).

3097. Will, 491 U.S. at 70-71 & n.10. accord Amos v. Maryland Dept. of Public Safety and Correctional Services, 126 F.3d 589, 608 (4th Cir. 1997) (summary judgment proper where prisoners brought suit against prison officials in their official capacity only); Lancaster v. Monroe County, Alabama, 116 F.3d 1419, 1429-30 (llth Cir. 1997) (jailers considered state officials who could not be sued in their official capacities). But cf. Hafer v. Melo, 502 U.S. 21, 25-29 (1991) (individual capacity suit against state official upheld even when official’s actions cloaked with state authority and could not have been effectuated had she been acting only in her personal capacity); White v. Gregory, 1 F.3d 267, 270 (4th Cir. 1993) (individual capacity suit against state prison officials upheld; state prison officials not absolutely immune from personal liability); Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996) (court erred in

dismissing deaf inmate’s 1983 claims against state agencies; Congress’ abrogation of states’ Eleventh Amendment immunity under Americans with Disabilities Act and Rehabilitation Act precludes assertion of immunity by state officials sued in their official capacity).

The critical issue in a suit against a state official in her official capacity is whether prospective or retroactive relief is sought, because only the former can be obtained under 1983. Will, 491 U.S. at 89-90. This distinction arises because an entity with Eleventh Amendment protection is not a “person” within the meaning of 1983, but the entity’s Eleventh Amendment immunity varies depending upon the nature of the relief sought: although relief that serves to compensate a party injured in the past is impermissible, relief that serves “to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect” on a state’s treasury. Papasan v. Allain, 478 U.S. 265, 278 (1986). The conclusion that suits seeking prospective relief are not suits against the state permits the use of 1983 when such relief is sought. Will, 491 U.S. at 71 n.10; Harris v. Angelina County, Tex., 31 F.3d 331, 337-38 (Sth Cir. 1994) (Eleventh Amendment not bar to

1983 action for prospective injunctive relief); Doe v. Wigginton, 21 F.3d 733, 737 (6th Cir. 1994) (Eleventh Amendment bar to 1983 claim for damages against prison officials for denying inmate’s request for HIV test, but not bar to claim for injunctive and declaratory relief); Bethesda Lutheran Homes and Services, Inc. v. Leean, 122 F.3d 443, 444 (7th Cir. 1997) (Eleventh Amendment bar to 1983 suit by non-residents against state officials for enforcing certain federal Medicaid regulations and state laws prohibiting nonresident admission to health care facility, but injunctive claim could proceed); cf. Missouri v. Jenkins, 491 U.S. 274, 280 (1989) (Eleventh Amendment not bar to enhancement of fee award ancillary to prospective relief against state); Hutto v. Finney, 437 U.S. 678, 695-96 (1978) (Eleventh Amendment not bar to award of attorney fees against state officials because no reason to distinguish award from any other penalty imposed to enforce prospective injunction).

3098. Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978). Nonetheless, mere employment of the tortfeasor is not enough to establish a valid 1983 claim. Id. at 691-92. The employee must be acting pursuant to an official policy before the municipality may be found liable. Id. at 694. Compare City of Canton v. Harris, 489 U.S. 378, 387, 390 (1989) (municipality may be held liable under

1983 for failure to train police officers only when failure to train amounts to deliberate indifference to rights of persons with whom police interact and when municipal policy actually caused injury); Pembaur v. City of Cincinnati, 475 U.S. 469, 485 (1986) (county may be held liable under 1983 for prosecutor’s actions when prosecutor acted as final decision maker for county); Krulik v. Board of Educ., 781 F.2d 15, 23 (2d Cir. 1986) (dictum) (municipality may be held liable when municipal supervisors knowingly acquiesced in official’s behavior because individual official’s act rises to level of “policy” for purposes of

1983); Fagan v. City of Vineland, 22 F.3d 1283, 1292-94 (3d Cir.) (municipality may be held liable for policy of inadequate training of police officers, where inadequate training caused officers to conduct high speed automobile chase in unsafe manner, even if none of pursuing police officers violated Constitution), a.d en banc, 22 F.3d 1296 (1994); Hyland v. Wonder, 127 F.3d 1135 (9th Cir. 1997) (city was not immune when constitutional deprivations resulted from chief probation officer’s decisions, where probation officer had policy making authority), cert. denied, 1998 WL 7742 (U.S. Mar. 2, 1998) (No. 97-1100); Fundiller v. City of Cooper City, 777 F.2d 1436, 1442-43 (llth Cir. 1985) (city may be held liable because allegation that city adopted custom of allowing use of excessive force fulfilled requirement that custom be “moving force behind the constitutional deprivation” before 1983 liability attaches) and Parker v. District of Columbia, 850 F.2d 708, 712-13 (D.C. Cir. 1988) (municipality may be held liable under 1983 when evidence of deliberate indifference to constitutional rights manifested by systematic and grossly inadequate training, discipline, and supervision of its police officers resulting in shooting of plaintiff by police officer during extra-jurisdictional arrest and disarmament) with City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (city may not be held liable under 1983 for single incident of excessive force by police officer because insufficient evidence of official municipal policy); Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995) (county may not be held liable under 1983 for actions of local judge acting in judicial capacity); Jones v. City of Carlisle, Ky., 3 F.3d 945, 950 (6th Cir. 1993) (city may not be held liable under 1983 for failure to train police officers when plaintiff’s injury caused by private actor, not by city policy); Sivard v. Pulaski County, 17 F.3d 185, 189 (7th Cir. 1994) (municipality may not be held liable under 1983 when no evidence exists of municipal policy or custom of unconstitutionally detaining arrestees without warrants); Frey v. City of Herculaneum, 44 F.3d 667, 672 (8th Cir. 1995) (municipality may not be held liable under 1983 when claim based on respondeat superior theory (citing Monell, 436 U.S. at 690)); Eggar v. City of Livingston, 40 F.3d 312, 316 (9th Cir. 1994) (municipality may not be held liable under 1983 for judicial conduct it lacks power to require, control, or remedy, even if conduct parallels or appears entangled with desires of municipality); Buckner v. Toro, 116 F.3d 450, 452-453 (llth Cir. 1997) (municipality not liable in arrestee’s 1983 action against county and private health care provider when no evidence Constitutional deprivation caused by municipal policy or

custom), cert. denied, 118 S. Ct. 608 (1997) and Triplett v. District of Columbia, 108 F.3d 1450, 1453 (D.C. Cir. 1997) (court erred in finding municipal liability under 1983 because alleged practice of excessive force by corrections officers was not part of policy or “standard operating procedure”). This holding, however, does not give a municipality the right to immediately appeal a trial court’s denial of its summary judgment motion asserting that the violations did not occur pursuant to official government policy. Swint v. Chambers County Comm’n, 115 S. Ct. 1203, 1208 (1995). In Swint, the county asserted that it was immune from suit because the sheriff who authorized the raids resulting in the alleged violations was not a policymaker for the county. Id. at 1207-08. The county further argued that the trial court’s denial of its summary judgment motion was immediately appealable to preserve its right to be free from trial. Id. The Court held that the county’s assertion “ranks as a mere defense to liability” and does not entitle the county to be free from trial. Id. at 1208. In reaching its decision, the Court held that the trial court’s denial of the county’s summary judgment motion was not appealable under either the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), or the appellate court’s discretionary “pendent party” jurisdiction. Id. at 1212.

In Howlett, based on the Monell rule, the Supreme Court held that a state court may not grant immunity to a municipality because a municipality, under federal law, does not have immunity in federal court. Howlett, 496 U.S. at 376-77.

In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S. Ct. 1160 (1993), the Supreme Court held that federal courts may not apply a “heightened pleading standard,” more stringent than the requirements of Rules 8 and 9 of the Federal Rules of Civil Procedure, in 1983 claims alleging municipal liability. Id. at 1162.

3099. See Boag v. MacDougall, 454 U.S. 364, 364-65 (1982) (per curiam) (prisoner’s transfer to another facility did not moot damage claim arising from solitary confinement at original facility). 3100. Compare Green v. McCall, 822 F.2d 284, 293 (2d Cir. 1987) (injunctive relief requiring compliance with parole regulations proper when history of noncompliance existed, even though parole commission had regulations in place for parole rescission hearing) and Williams v. Lane, 851 F.2d 867, 883-84 (7th Cir. 1988) (injunctive relief and appointment of special master to implement just remedy

proper when inmates successfully claimed denial of free exercise of religion, denial of access to courts, and cruel and unusual punishment) with Preiser v. Newkirk, 422 U.S. 395, 401-03 (1975) (injunctive relief dismissed as moot when potential for recurrence of allegedly unconstitutional transfers between prisons slight); Cooper v. Sheriff of Lubbock County, 929 F.2d 1078, 1084 (5th Cir. 1991) (per curiam) (injunctive relief dismissed as moot when prisoner, allegedly denied food for five consecutive days, transferred to another prison) and Young v. Lane, 922 F.2d 370, 373-74 (7th Cir. 1991) (injunctive relief dismissed as moot unless plaintiffs could show, on remand, that retransfer likely to prison where alleged violation of right to free exercise of religion occurred).

3101. 42 U.S.C. 1988(b) (1994) (“In any action or proceeding to enforce a provision the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.”); see Smith v. Robinson, 468 U.S. 992, 1006 (1984) (courts have broad authority to make 1988 awards of attorney’s fees); cf. North Carolina Dep’t of Transp. v. Crest St. Community Council, 479 U.S. 6, 12 (1986) (courts may grant attorney’s fees under 1988 only for action to enforce enumerated civil rights statutes).

Under 42 U.S.C.A. 1997e(d), fees may be awarded only if they are directly and reasonably incurred in proving an actual violation of the 1983 plaintiff’s rights and the amount of the fee was proportionately related to the relief awarded by the court for the violation, or if they were incurred in enforcing a court’s order of such relief. 42 U.S.C.A. 1997e(d) (West Supp. 1997); see Muhammad v. Lockhart, 104 F.3d 1069, 1070 (8th Cir. 1997) (court properly determined that prisoner had achieved material victory and awarded attorney fees in addition to nominal damages for 1983 claim alleging procedural due process rights had been violated during various disciplinary hearings and that compulsory use of ill-fitting shoes amounted to cruel and unusual punishment); Hook v. Arizona Dept. of Correction, 107 F.3d 1397, 1404 (9th Cir. 1997) (award of reasonable attorney’s fees proper under both 42 U.S.C. 1988 and standards set forth by PLRA where inmate was a “prevailing party” and where fees were “directly and reasonably incurred in proving an actual violation of the prisoner’s rights”), cert. denied, 118 S. Ct. 171 (1997). In addition, up to twenty-five percent of any monetary award can be used to satisfy attorney’s fees awarded against the defendant. Id. If the award of attorney’s fees is not greater than 150 percent of the

judgment, the excess shall be paid by the defendant. Id. The hourly rate for determining attorney’s fees is limited to 150 percent of the hourly rate for court-appointed counsel as listed in 18 U.S.C. 3006A. Id. A prisoner can agree to personally pay more than these limits, but the defendant cannot be held liable for amounts in excess of those listed. Id. These changes apparently do not apply retroactively to attorneys who had previously accepted employment. Cooper v. Casey, 97 F.3d 914, 921 (7th Cir. 1996) (provision in PLRA limiting amount of attorney’s fees that may be awarded in prison civil litigation does not have retroactive effect); Jensen v. Clarke, 94 F.3d 1191, 1202-03 (8th Cir. 1996) (retroactive application of amended law would foil attorney expectations in agreeing to take the case and would be manifestly unjust). But see Alexander S. v. Boyd, 113 F.3d 1373, 1385-88 (4th Cir. 1997) (attorney’s fees awards entered after effective date of PLRA had to comply with restrictions imposed by PLRA, regardless of when work being compensated was performed, because restrictions did not negatively impact party’s expectations or rights and thus were not retroactive), cert. denied sub nom., Medford v. Jenkins, 118 S. Ct. 881 (1998).

The party requesting attorney’s fees must be the “prevailing party.” 42 U.S.C. 1988 (1994). In Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989), the Supreme Court held that a plaintiff is a “prevailing party” if she has succeeded on “any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit.” Id. at 791-92. The Court also indicated that the plaintiff must point “to a resolution of the dispute which changes the legal relationship between itself and the defendant,” ensuring that the judgment was not merely a “technical victory.” Id. at 792. Similarly, in Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam), the Supreme Court stated that a party meets the “prevailing party” requirement if, and only if, the judgment affects the behavior of the defendant toward the plaintiff. Id. at 4. The Court held that plaintiffs who won a declaratory judgment against prison officials did not prevail for purposes of 1988 because the judgment did not affect the behavior of the defendant towards the plaintiffs when one plaintiff had died and the other plaintiff had been released by the time the district court entered its order. Id. at 2.

In Farrar v. Hobby, 113 S. Ct. 566 (1992), the Supreme Court held that a plaintiff who wins nominal damages is a “prevailing party” under 1988, but that because an award of nominal damages is only a partial or limited success for the plaintiff, an award of attorney’s fees is unwarranted. Id. at 573-75. Compare O’Connor v. Huard, 117 F.3d 12, 17 (lst Cir. 1997) (pretrial detainee awarded only nominal damages for 1983 claim against corrections officer was neverthe less eligible for award of attorney fees where case would have deterrent impact against future abuses and fee was tailored to work documented and relief obtained); Piper v. Oliver, 69 F.3d 875, 876-77 (8th Cir. 1995) (plaintiff entitled to attorney’s

fees since right to be free from illegal detention significant and public goal served by victory); Friend v. Kolodzieczak, 72 F.3d 1386, 1389-92 (9th Cir. 1995) (plaintiff entitled to attorney’s fees where attainment of right to use of rosaries and scapulars more than technical victory; fees for representation on contest of attorney’s fees to Supreme Court and for post-judgment interest also appropriate), cert. denied, 116 S. Ct. 1016 (1996) and Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1583 (llth Cir. 1994) (party seeking end to all race- and gender-conscious affirmative action entitled to attorney’s fees in decision that restricts scope and duration of affirmative action provision) with Langton v. Johnson, 928 F.2d 1206, 1224-26 (Ist Cir. 1991) (plaintiff not entitled to attorney’s fees when his success as to issue of double-bunking was of only “minor significance” and did not have a “catalytic effect” in bringing about abandonment of practice); Carter v. Burch, 34 F.3d 257, 266 (4th Cir. 1994) (plaintiff not entitled to attorney’s fees when no broad civil rights issues involved); Testa v. Village of Mundelein, Ill., 89 F.3d 443, 447 (7th Cir. 1996) (plaintiff not entitled to attorney’s fees where jury returned mixed verdict in favor of defendants on 1983 claim but awarded plaintiff $1,500 on malicious prosecution claim); Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir. 1996) (plaintiff not entitled to attorney’s fees despite status as prevailing parties; plaintiffs received only $4 in compensatory damages and victory served little or no public purpose); Milton v. Des Moines, Iowa, 47 F.3d 944, 946-47 (8th Cir. 1995) (plaintiff not entitled to attorney’s fees even though plaintiff prevailed in 1983 suit alleging use of excessive force in arrest when plaintiff obtained only $1 verdict against one of three defendant police officers, plaintiff withdrew punitive damage claims, and plaintiff failed to obtain judgment against one police officer for alleged use of racial slurs) and Corder v. Brown, 25 F.3d 833, 836 (9th Cir. 1994) (plaintiff not entitled to full attorney’s fees where plaintiff recovered only $24,000 in claim for one million dollars and only three out of 45 named defendants found liable; remanded to reduce fees to reflect limited degree of success). The court may review the number of hours billed and rate sought. See Cooper v. Pentecost, 77 F.3d 829, 832 (Sth Cir. 1996) (plaintiff’s award of attorney fees appropriately reduced for duplicative listing of hours); Hadix v. Johnson, 65 F.3d 532, 534-36 (6th Cir. 1995) (plaintiffs did not meet burden of showing need for expensive out-of-town expert counsel; case remanded with instructions to calculate award at lower hourly rate); Jensen v. Clarke, 94 F.3d 1191, 1203-04 (8th Cir. 1996) (reduction of hours in granting attorney’s fees for lack of documentation where major relief obtained).

In Hewitt v. Helms, 482 U.S. 755 (1987), the Supreme Court also stated that in certain circumstances defendants may perform voluntary acts that afford the plaintiff all or some of the relief sought without

having a court enter a final judgment. Id. at 760-61. For example, a monetary settlement or a change in conduct that redresses the plaintiff’s grievances would entitle the plaintiff to be deemed a “prevailing party.” Id. (dictum). Compare Heath v. Brown, 807 F.2d 1229, 1233 (5th Cir. 1987) (per curiam) (dictum) (court must find suit “substantial factor or a significant catalyst in motivating the defendants to end their unconstitutional behavior” in order for plaintiff to “prevail” without obtaining legal relief); Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 312-13 (6th Cir. 1988) (plaintiff “prevailed” when lawsuit resulted in landmark Supreme Court case which served as catalyst for change in board practices even though plaintiff did not obtain individual relief) and Foremaster v. City of St. George, 882 F.2d 1485, 1488 (lOth Cir. 1989) (plaintiff entitled to attorney’s fees absent judicial relief when lawsuit causally linked to relief obtained and defendant’s response to lawsuit required by law) with Quinn v. Missouri, 891 F.2d 190, 194 (8th Cir. 1989) (plaintiffs not entitled to attorney’s fees in suit challenging state statute later declared unconstitutional because plaintiffs gained nothing from suit).

A prevailing defendant in a civil rights case may recover 1988 attorney’s fees when the suit is vexatious, frivolous, or brought to harass the defendant. Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983). Compare Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1049-50 (6th Cir.) (defendant not entitled to attorney’s fees as sanctions where cross-examination of police officer about prior civil suits did not vexatiously or unreasonably multiply proceedings), cert. denied, 117 S. Ct. 312 (1996) and Cobb v. Saturn Land Co., 966 F.2d 1334, 1338 (lOth Cir. 1992) (defendant not entitled to attorney’s fees when case raised significant issues) with Leefler v. Meer, 936 F.2d 981, 986-87 (7th Cir. 1991) (defendant entitled only to those attorney’s fees which accrued after claim against county commissioners became clearly frivolous; this amount may be reduced if defendant failed to mitigate fees through summary procedures) and Gilbert v. Ben-Asher, 900 F.2d 1407, 1411-12 (9th Cir. 1990) (defendant board of medical examiners not entitled to attorney’s fees even though plaintiff’s claims barred by res judicata and collateral estoppel). But see Popham v. City of Kennesaw, 820 F.2d 1570, 1582-83 (llth Cir. 1987) (defendant not entitled to attorney’s fees even though possible that plaintiff brought suit to harass city because plaintiff prevailed on claims against other defendant).

3102. In Wilson v. Garcia, 471 U.S. 261 (1985), the Supreme Court held that, because 1983 has no statute of limitations of its own, courts should apply the statute of limitations pertaining to personal injury actions in the jurisdiction in which the claim arose. Id. at 275-80; cf. Arnold v. Duchesne County,

26 F.3d 982, 986-87 (lOth Cir. 1994) (state statute of limitations enacted specifically for 1983 actions inapplicable because it eliminates assurance that neutral rules of decision will apply to 1983 actions). In Owens v. Okure, 488 U.S. 235 (1989), the Court held that if the state in which the cause of action arose has more than one statute of limitations, the federal court should apply the residual or general personal injury statute of limitations rather than the statute of limitations for specific intentional torts. Id. at 249-50. The statute of limitations applied by federal courts will thus depend on the structure of the statute of limitations laws in the state in which the claim arose. See Farrell v. McDonough, 966 F.2d 279, 281-82 (7th Cir. 1992) ( 1983 complaint against prison official for deliberate indifference to medical needs when prisoner transferred from low gallery to high gallery, despite leg injury, governed by state statute of limitations for personal injury actions); Meade v. Grubbs, 841 F.2d 1512, 1522-23 (lOth Cir. 1988) ( 1983 claims arising in Oklahoma will be uniformly held to two-year state statute of limitations for injury to personal rights of another and not to one-year statute of limitations for assault and battery). In Heck v. Humphrey, 114 S. Ct. 2364 (1994), the Supreme Court held that a 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated. Id. at 2374; accord Black v. Couglin, 76 F.3d 72, 75 (2d Cir. 1996) (prisoner’s cause of action for denial of due process in disciplinary proceedings did not accrue until court reversed disciplinary ruling); Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996) (prisoner’s 1983 claims for damages resulting from unlawful conviction and confinement did not accrue until state supreme court ordered murder charges against claimant dismissed), cert. denied, Wambaugh v. Smith, 117 S. Ct. 611 (1997); Hulsey v. Owens, 63 F.3d 354, 355 n.2 (5th Cir. 1995) (per curiam) (prisoner’s 1983 claim does not accrue until after he has obtained habeas relief, if warranted).

In Board of Regents v. Tomanio, 446 U.S. 478 (1980), the Court held that in addition to applying the state statute of limitations, federal courts are obligated to apply the state’s tolling rules unless doing so would produce results that are inconsistent with the policies underlying 1983. Id. at 483-86. Compare Hardin v. Straub, 490 U.S. 536, 543-44 (1989) (plaintiff entitled to benefit of Michigan tolling provision during period of legal disability because statute consistent with 1983); Rose v. Bartle, 871 F.2d 331, 348 (3d Cir. 1989) (plaintiff entitled to benefit of state tolling provision because favorable termination of underlying proceeding necessary element in 1983 claim); Hughes v. Sheriff of Fall River County Jail, 814 F.2d 532, 533 (8th Cir. 1987) (plaintiff entitled to benefit of South Dakota tolling provision despite express exclusion of federal civil rights suits in state statute) and Elliott v. City of Union City, 25 F.3d 800, 803 (9th Cir. 1994) (plaintiff entitled to benefit of California tolling provision during uninterrupted

periods of incarceration, despite fact that period included both pre-conviction and post-conviction incarceration) with Street v. Vose, 936 F.2d 38, 40-41 (lst Cir. 1991) (per curiam) (plaintiff not entitled to benefit of Massachusetts tolling provision because alleged mental incapacities developed long after cause of action accrued, and tolling provision not unconstitutional for excluding imprisonment) and Pinaud v. County of Suffolk, 52 F.3d 1139, 1157-58 (2d Cir. 1995) (plaintiff not entitled to benefit of state equitable tolling doctrine because plaintiff failed to submit non-conclusory evidence of conspiracy or other fraudulent wrong which precluded possible discovery of harms suffered).

The federal doctrine of equitable tolling which “permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim” may be available in addition to state tolling rules. Smith v. City of Chicago Heights, 951 F.2d 834, 839-40 (7th Cir. 1992) (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1991); see also Donald v. Cook County Sheriff’s Dep’t., 95 F.3d 548, 561-62 (7th Cir. 1996) (equitable tolling potentially appropriate where pro se inmate unable to identify officers directly involved in alleged incidents without aid of discovery tools or court-ordered disclosure; court’s delay in considering, and eventual denial of, motion for appointment of counsel, combined with lack of notice to plaintiff that wrong defendants sued, ensured continued ignorance of identities of unknown officials); cf Cervantes v. City of San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (arrestee claiming police conspiracy to violate his civil rights entitled to benefit from state equitable tolling rules).

3103. In Town of Newton v. Rumery, 480 U.S. 386 (1987), the Supreme Court held that a person arrested for witness tampering who agreed to release any 1983 claims against the city in exchange for the city’s dismissal of charges would be barred by the release from filing a subsequent 1983 claim. Id. at 397-98. At a minimum, the release must be voluntary. Id. at 398. Compare Sexton v. Ryan, 804 F.2d 26, 27 (2d Cir. 1986) (per curiam) (release inherently suspicious and unenforceable against suspect who claimed he was coerced into signing in exchange for police dismissing charges) with Hammond v. Bales, 843 F.2d 1320, 1322-23 (lOth Cir. 1988) (release-dismissal agreement valid when not coerced and executed under judicial supervision).

3104. Allen v. McCurry, 449 U.S. 90, 98-99 (1980); Jennings v. Caddo Parish Sch. Bd., 531 E2d 1331, 1331-32 (Sth Cir. 1976) (per curiam) ( 1983 suit barred by prior state court decision on merits of discrimination claim, either by application of res judicata or collateral estoppel). Compare Pasterczyk v.

Fair, 819 F.2d 12, 13-14 (Ist Cir. 1987) (prisoner’s 1983 suit for damages barred by res judicata when prisoner, returned to Massachusetts after escaping and serving sentence for subsequent crime in Arizona, prevailed in state suit claiming credit for original time served but failed to seek monetary remedy at time of first suit); Sykes v. James, 13 F.3d 515, 521 (2d Cir. 1993) (parolee’s 1983 claim against parole officer barred by collateral estoppel when court in previous 1983 action determined findings of hearing officer in revocation hearing were binding on district court); Gray v. Farley, 13 F.3d 142, 146 (4th Cir. 1993) (prisoner’s 1983 claim against sheriffs for use of excessive force barred by collateral estoppel when issue tried at suppression hearing in state court); Walker v. Schaeffer, 854 F.2d 138, 142-43 (6th Cir. 1988) (prisoners in 1983 suit for false arrest and imprisonment barred by collateral estoppel from relitigating issue of probable cause when prisoners had been convicted in state court and given “reasonable and fair opportunity” to litigate claims); Hudson v. Hedge, 27 F.3d 274, 275-76 (7th Cir. 1994) (prisoner’s 1983 claim that police had deprived him of property without due process of law barred by res judicata when prisoner’s prior 1983 claim involving same property dismissed as frivolous); Waller v. Groose, 38 F.3d 1007, 1008 (8th Cir. 1994) (per curiam) (inmate’s 1983 claim of improper discipline for conduct violation barred by res judicata when inmate’s prior identical complaint dismissed as frivolous); Ayers v. City of Richmond, 895 F.2d 1267, 1272 (9th Cir. 1990) (prisoner’s

1983 claim barred by collateral estoppel when motion to suppress denied in state court proceeding) and Klein v. Zavaras, 80 F.3d 432, 435 (lOth Cir. 1996) (inmate’s 1983 claim alleging deprivation of personal belongings during transfer to more secure facility without adequate justification or due process barred by res judicata where judgment for defendants already entered in state court) with Haring v. Prosise, 462 U.S. 306, 316 (1983) (prisoner’s 1983 claim of unlawful search not barred by collateral estoppel when guilty plea in criminal trial); Gilday v. Dubois, 124 F.3d 277, 283 (Ist Cir. 1997) (defendants not collaterally estopped from raising question of state or federal wiretap statute violation where question was neither addressed nor implicated in separate, narrow, fact-based case); Golino v. City of New Haven, 950 F.2d 864, 869 (2d Cir. 1991) ( 1983 claim for malicious prosecution not barred by collateral estoppel when findings of preliminary evidentiary hearing for investigation in which charges eventually dropped, given that procedural limitation at hearing prevented “full and fair” litigation of issue); Mosely v. Wilson, 102 F.3d 85, 91 (3rd. Cir. 1996) (conviction ultimately overturned did not preclude action against arresting officer alleging malicious prosecution and arrest without probable cause); Brown v. Edwards, 721 F.2d 1442, 1448 (5th Cir. 1984) (litigation of probable cause issue in

1983 action not barred by prisoner’s prior guilty plea when issue not actually litigated in prior proceeding); Donovan v. Thames, 105 F.3d 291, 295 (6th Cir. 1997) (conviction for resisting arrest did not bar excessive force 1983 claim where there was no evidence that issue was actually litigated or that claim could have been raised claim as separate action; but plaintiff was barred under res judicata from bringing 1983 claim that he was arrested without probable cause where court had already determined arrest was valid); Rooding v. Peters, 92 F.3d 578, 580 (7th Cir. 1996) (action to recover damages for unconstitutional incarceration did not accrue until prisoner prevailed in mandamus action, and thus writ of mandumus not res judicata); Hiser v. Franklin, 94 F.3d 1287, 1290-92 (9th Cir. 1996) (inmate’s 1983 claim alleging denial of access to courts not barred by collateral estoppel or res judicata where Constitutional violations occurred after earlier litigation, and subsequent judicial decisions held that under some circumstances prisoners have constitutional right to photocopies of legal documents), cert. denied, 117 S. Ct. 1106 (1997) and Fields v. Sarasota Manatee Airport Auth., 953 F.2d 1299, 1306 (llth Cir. 1992) (prisoner’s 1983 suit not barred by res judicata when claim brought after nearly identical state claim defeated; res judicata does not apply in cases where litigant reserves right in state court proceedings to bring federal claims in federal court, should state court deny state law remedy, if litigant required to pursue state court proceedings to satisfy exhaustion requirements imposed by federal courts). The doctrine of judicial estoppel also applies. See Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996) (plaintiff’s present position regarding shooting by police officer during traffic stop by another officer contradictory to position plaintiff took when he pled guilty in related criminal case; therefore plaintiff judicially estopped from claiming that Fourth Amendment right to be free from unreasonable seizures violated), cert. denied, 117 S. Ct. 954 (1997).

The res judicata effect of a state court decision on a 1983 claim is a matter of state law. Heck, 114 S. Ct. at 2369 n.2.

3105. Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2612 (1993).

3106. Id. at 2613. Building on the statutory interpretation of 1983 given in Tenney v. Brandhove, 341 U.S. 367, 376 (1951), the Court held that absolute immunity under 1983 includes the immunities available to government officials under the common law of 1871, when 1983 was adopted. Buckley, 113 S. Ct. at 2613.

3107. Id. at 2614. Absolute judicial immunity does not prevent a prisoner from seeking injunctive relief or attorney’s fees in 1983 actions. See Pulliam v. Allen, 466 U.S. 522, 541-44 (1984) judicial

immunity not bar to prospective injunction against judge who imposed bail on individuals charged with non-jailable offenses); Harris v. Champion, 51 F.3d 901, 905-06 (lOth Cir. 1995) (judicial immunity not bar to suit by defendants seeking prospective relief even though bar to 1983 suit for monetary damages); Hollins v. Wessel, 819 F.2d 1073, 1074 (llth Cir. 1987) (per curiam) (judicial immunity not bar to petition for injunction against mortgage foreclosure action on prisoner’s property when prisoner not notified of proceedings or appointed guardian ad litem).

Like judges, prosecutors are not immune from 1983 cases seeking injunctive relief or attorney’s fees. See Lemmons v. Law Firm of Morris and Morris, 39 E3d 264, 267 (lOth Cir. 1994) (prosecutor’s assertion of immunity not bar to inmate’s 1983 claim for injunctive relief; neither qualified nor absolute immunity precludes prospective injunctive relief except in rare cases). In addition. parole board members or grand jurors are not immune from 1983 cases seeking injunctive relief or attorney’s fees. See Dorman v. Higgins, 821 F2d 133, 139 (2d Cir. 1987) (although absolute immunity of parole officer not bar to plaintiff’s petition for injunction against use of false information in presentencing report, complaint properly dismissed when no imminent danger of harm indicated).

3108. Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (ultimate fairness of system could be weakened by subjecting prosecutors to 1983 liability). Compare Buckley, 113 S. Ct. at 2615 (prosecutor absolutely immune from damages for acts taken in preparing for prosecution and which occur in course of role as advocate for state); Reid v. New Hampshire, 56 F3d 332, 337 (Ist Cir. 1995) (prosecutors absolutely immune from 1983 suit by former defendant alleging prosecutors knowingly withheld exculpatory evidence in violation of discovery orders); Rodriguez v. Weprin, 116 F.3d 62, 66 (2nd Cir. 1997) (prosecutor absolutely immune from 1983 suit related to prosecutor’s functions as trial or appellate advocates); Carter v. Burch, 34 F.3d 257, 262-63 (4th Cir. 1994) (prosecutor absolutely immune from inmate’s 1983 suit alleging failure to disclose exculpatory evidence when prosecutor acting as advocate

of state, not in investigatory capacity); Hudson v. Hughes, 98 F.3d 868, 873 (Sth Cir. 1996) (assistant district attorneys absolutely immune from inmate’s 1983 prosecutorial misconduct claims); Randles v. Gregart, 965 F.2d 90, 93 (6th Cir. 1992) (prosecutor absolutely immune from suit alleging de minimis prosecution); Lucien v. Preiner, 967 F.2d 1166, 1166 (7th Cir. 1992) (prosecutor absolutely immune from liability for allegedly lying at executive clemency proceeding); Brodnicki v. City of Omaha, 75 F.3d 1261, 1267-68 (8th Cir.) (prosecutor who was not trial attorney absolutely immune from 1983 suit alleging intimidation from interviews conducted with claimant’s potential witness, where interviews arguably either preparation for bond revocation hearing or as evaluation of reliability of witness), cert. denied, 117 S. Ct. 179 (1996); Lerwill v. Joslin, 712 F.2d 435, 439-40 (lOth Cir. 1983) (prosecutor absolutely immune even when acting beyond scope of authority by invoking local statute under which not empowered to prosecute; prosecutor may lose absolute immunity, however, if actions “so clearly beyond the bounds of a prosecutor’s authority” that liability would not deter prosecutors from performing their functions) and Elder v. Athens-Clarke County, Ga., 54 F.3d 694, 695-96 (llth Cir. 1995) (prosecutor absolutely immune from prisoner’s 1983 suit for damages alleging conspiracy to maliciously prosecute prisoner for obstructing justice in effort to cover up beating of prisoner by jailers) with Kalina v. Fletcher, 118 S. Ct. 502, 509-10 (1997) (prosecutor not absolutely immune with respect to her actions in executing certification for determination of probable cause, but absolutely immune for conduct in connection with preparation and filing of charging documents); Doe v. Phillips, 81 F.3d 1204, 1210 (2d Cir. 1996) (prosecutor not absolutely immune from damages in demanding that claimant swear to innocence on Bible in church as condition of dropping charges; government official has no authority to require religious act), cert. denied, 117 S. Ct. 1244 (1997); Allen v. Lowder, 875 F.2d 82, 85-86 (4th Cir. 1989) (prosecutor not absolutely immune in suit alleging prosecutor attempted to secure continued incarceration of defendant after reversal of conviction because acting in administrative capacity); Hughes v. County, Tex., 948 F.2d 918, 923 (Sth Cir. 1991) (prosecutor not absolutely immune for advice given to county commissioners where prosecutor not pursuing a criminal case) and Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264, 266 (lOth Cir. 1994) (prosecutor not absolutely immune, but rather entitled to qualified immunity, in suit alleging intervention to forestall inmate’s writ of habeas corpus because prosecutor’s action, at best, constituted administrative duty).

3109. In Forrester v. White, 484 U.S. 219 (1988), the Supreme Court stated that, although judges enjoy absolute immunity from liability and damages for their judicial or adjudicatory acts, they are not absolutely immune in their performance of administrative and executive functions. Id. at 227. The Forrester Court held that a judge who demoted and dismissed a probation officer was acting in an administrative capacity and was therefore not absolutely immune from liability and damages. Id. at 229. Compare Mireles v. Waco, 502 U.S. 9, 13 (1991) (per curiam) (judge absolutely immune from damages in suit alleging he authorized police to seize and bring public defender into courtroom by using excessive force); Malachowski v. City of Keene, 787 F.2d 704, 710 (lst Cir. 1986) (per curiam) (judge absolutely immune from damages when acting with jurisdiction over parental custody case); Krueger v. Reimer, 66 F.3d 75, 76-77 (5th Cir. 1995) (judge absolutely immune in 1983 action alleging judge and district attorney conspired to deprive inmate of right to appeal burglary conviction by denying request to proceed in forma pauperis on appeal); Randles v. Gregart, 965 F.2d 90, 93 (6th Cir. 1992) (per curiam) (judge absolutely immune from 1983 action when judge convicted defendant of hunting fur-bearing animals without harvester’s license); John v. Barron, 897 F.2d 1387, 1392 (7th Cir. 1990) judge absolutely immune from suit based on handling of trial); Duty v. City of Springdale, Ark., 42 F.3d 460, 462 (8th Cir. 1994) (per curiam) judge absolutely immune from 1983 suit alleging civil rights violations in issuance of arrest warrant); New Alaska Dev. Corp. v. Guetschew, 869 F.2d 1298, 1302 (9th Cir. 1989) judge absolutely immune from liability when had subject matter jurisdiction and acted in judicial capacity when appointing receiver for corporation) and Harris v. Champion, 51 F.3d 901, 906 (lOth Cir. 1995) judge absolutely immune from 1983 suit for damages alleging delays in prosecution of appeals violated former criminal defendants’ Sixth Amendment and Fourteenth Amendment rights) with Morrison v. Lipscomb, 877 F.2d 463, 466 (6th Cir. 1989) judge not absolutely immune for executive action as Chief Judge of judicial district declaring moratorium on issuance of writs of restitution) and Kurowski v. Krajewski, 848 F.2d 767, 775 (7th Cir. 1988) judge not absolutely immune when terminated employment of former public defenders who did not share judge’s political beliefs).

3110. Courts have also granted absolute immunity to parole board members and grand jurors. Compare Imbler, 424 U.S. at 423 & n.20 (grand jurors absolutely immune when acting within scope of duties); Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986) (state parole board examiner absolutely immune in

1983 damage action alleging parole revocation based on false information); Hulsey v. Owens, 63 F.3d 354, 357 (Sth Cir. 1995) (per curiam) (director and general counsel for parole board absolutely immune from inmate’s 1983 action in connection with inmate’s parole revocation) and Wilson v. Kelkhoff, 86 F.3d 1438, 1445 (7th Cir. 1996) (prisoner review board members absolutely immune in 1983 suit alleging failure to provide prisoner sufficient notice of final hearing on revocation of mandatory supervised release and failure to provide prisoner opportunity to present evidence and witnesses) with

Lanier v. Fair, 876 F.2d 243, 253 (lst Cir. 1989) (parole board members entitled to qualified immunity with respect to rescission of reserve parole date).

Other individuals accorded absolute immunity because of their judicially related activities include court-appointed psychiatrists, social workers, hearing examiners, federal and state probation officers, and court clerks and reporters. Compare Rodriguez v. Weprin, 116 F.3d 62, 66-67 (2d Cir. 1997) (court clerks alleged to have contributed to inmate’s delay of appeal were entitled to immunity for such “functions. . . undertaken pursuant to the explicit direction of a judicial officer”); Mays v. Sudderth, 97 F.3d 107, 113-14 (5th Cir. 1996) (sheriff’s strict compliance with facially valid judicial order clothed sheriff with same absolute judicial immunity enjoyed by the judge issuing the order); Kurzawa v. Mueller, 732 F.2d 1456, 1458 (6th Cir. 1984) (psychiatrist, social worker, and supervisor of county protective services who testified at parental rights termination hearing absolutely immune because all inherently part of judicial process); Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992) (state court clerk absolutely immune from claim of wrongly refusing to file prisoner’s complaint); Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994) (bailiff absolutely immune if allegedly improper communication with jury occurred under direction of trial judge; otherwise, bailiff entitled to only qualified immunity); Coverdell v. Department of Social and Health Servs., 834 F.2d 758, 764-65 (9th Cir. 1987) (court-appointed child protective services worker absolutely immune when acting pursuant to court order) and Turner v. Barry, 856 F.2d 1539, 1540 (D.C. Cir. 1988) (per curiam) (probation officer absolutely immune from suit alleging that he filed false presentence report) with Sealey v. Giltner, 116 F.3d 47, 51 (2d. Cir 1997) (acting director of prison disciplinary committee responsible for hearing rules infraction cases was not entitled to quasi-judicial absolute immunity) and Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 592 (lOth Cir. 1994) (hearing officers not absolutely immune from 1983 claim alleging violation of civil rights arising from disciplinary actions taken against nurse and psychiatrist).

Witnesses, including police officers, are also granted absolute immunity. See Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983) (police officer absolutely immune from liability for perjured testimony); Malachowski v. City of Keene, 787 F.2d 704, 712 (lst Cir. 1986) (per curiam) (police officer absolutely immune from damages for filing allegedly false delinquency petition in juvenile delinquency proceeding); Sykes v. James, 13 F.3d 515, 521 (2d Cir. 1994) (parole officer absolutely immune from liability for submitting perjurious affidavit in parolee’s petition for habeas relief); Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (deputy sheriff absolutely immune from liability for testimony at pretrial suppression hearing); Curtis v. Bembenek, 48 F.3d 281, 284 (7th Cir. 1995) (police officers absolutely immune from

1983 liability for giving allegedly perjured testimony during preliminary hearing and pretrial suppression hearing); Holt v. Castaneda, 832 F.2d 123, 125 (9th Cir. 1987) (police officers absolutely immune from liability for testimony at pretrial suppression hearing); Miller v. Glanz, 948 F.2d 1562, 1570 (lOth Cir. 1991) (police officer absolutely immune from charge of giving false testimony at trial). But see Wheeler v. Cosden Oil & Chem. Co., 734 F.2d 254, 261 (5th Cir.) (police officer not absolutely immune from liability for testimony at pretrial probable cause hearing), modified on other grounds, 744 F.2d 1131 (1984); Juriss v. McGowan, 957 F.2d 345, 348 (7th Cir. 1992) (police officer not absolutely immune from false arrest claim despite fact that arrest warrant based on immunized testimony given by same police officer at grand jury hearing). Police officers are also absolutely immune from liability for conspiracy to give perjured testimony. Alioto v. City of Shively, Ky., 835 F.2d 1173, 1174 (6th Cir. 1987); Wilkins v. May, 872 F.2d 190, 192 (7th Cir. 1989); Miller, 948 F.2d at 1570. Contra Dory v. Ryan, 25 F.3d 81, 84 (2d Cir. 1994) (police officer not absolutely immune from charge of extra-judicial conspiracy to give false testimony).

3111. Compare Jarvis v. Wellman, 52 F3d 125, 126 (6th Cir. 1995) (prison officials entitled to qualified immunity in 1983 action by rape victim alleging right to privacy violation for disclosing her

medical records to inmate; prison officials exercising discretionary function); Browning v. Vernon, 44 F.3d 818, 821-22 (9th Cir. 1995) (prison officials entitled to qualified immunity in 1983 suit alleging due process violations in administration of probation; prison officials exercising discretionary function); Uhlrig v. Harder, 64 F.3d 567, 576 (lOth Cir. 1995) (state mental health administrators entitled to qualified immunity in 1983 action brought by deceased hospital employee’s husband alleging that violations of employee’s substantive due process rights recklessly created danger leading to employee’s death; administrators exercising discretionary function), cert. denied, 116 S. Ct. 924 (1996) and Adams v. Poag, 61 F.3d 1537, 1548 (llth Cir. 1995) (prison nurse entitled to qualified immunity in 1983 action brought by deceased inmate’s family alleging failure to recognize and treat inmate’s progressively deteriorating condition; nurse exercising discretionary function) with Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (prison nurse not entitled to qualified immunity in action by inmate who alleged denial of medical treatment prescribed by physician; nurse’s compliance with prescription or treatment plan constituted ministerial, not discretionary, function) and McCullough v. Horton, 69 F.3d 918, 919 (8th Cir. 1995) (clerk of court not entitled to immunity in failure to provide transcript when ordered to do so by court; not discretionary function).

3112. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Compare Davis v. Scherer, 468 U.S. 183, 197 (1984) (plaintiff can only overcome qualified immunity by showing that rights clearly established at time of violation; no showing made when right to pre-termination hearing or prompt post-termination hearing not clear from precedent); St. Hilaire v. City of Laconia, 71 F.3d 20, 28-29 (Ist Cir. 1995) (qualified immunity applicable in shooting during execution of search warrant where duty to announce identity and state purpose not clearly established at time of shooting), cert. denied, 116 S. Ct. 2548 (1996); Lue v. Moore, 43 F.3d 1203, 1206 (3d Cir. 1994) (qualified immunity applicable where blind prisoner failed to show that prison officials violated his clearly established rights under Rehabilitation Act of 1973 and thus no showing of denial of equal access to vocational training); Price v. Sasser, 65 F.3d 342, 347 (4th Cir. 1995) (qualified immunity applicable where law governing duty to protect inmates from other inmates unclear when assault occurred, and no showing sheriff had reason to know inmate in danger); Bell-Bey v. Williams, 87 F.3d 832, 836-37 (6th Cir. 1996) (qualified immunity applicable where prison official neither knew nor could have known of relevant legal standard pertaining to inspection of outgoing legal mail); Anderson v. Romero, 72 F.3d 518, 524 (7th Cir. 1995) (qualified immunity applicable against inmate’s claim that constitutional rights violated by disclosure of HIV-positive status where right to confidentiality not clearly established); Doby v. Hickerson, 120 F.3d 111, 113 (8th Cir. 1997) (prison psychiatrist entitled to qualified immunity for alleged due process violation arising from nonconsensual administration of antipsychotic medication but immunity applied only to conduct before and within short period of time after Supreme Court decision which set forth due process requirements for such administrations and did not not extend to administrations three weeks after decision handed down); Blueford v. Prunty, 108 F.3d 251, 253-55 (9th Cir. 1997) (corrections officer entitled to qualified immunity from inmate’s 1983 claim where right to be free from same-sex verbal sexual harassment not clearly established at the time of incident); Adkins v. Rodriguez, 59 F.3d 1034, 1037 (lOth Cir. 1995) (qualified immunity applicable where inmate failed to show clearly established right to be free from prison officials’ verbal sexual harassment and thus failed to show requisite deliberate indifference required to establish Eighth Amendment violation) and Haygood v. Johnson, 70 F.3d 92, 94-95 (llth Cir. 1995) (qualified immunity applicable where omitted facts from search warrant application not so clearly material that reasonable law officer would have known that omission would lead to violation of federal law), cert. denied, 117 S. Ct. 359 (1996) with Doe v. Phillips, 81 F.3d 1204, 1212 (2d Cir. 1996) (qualified immunity inapplicable where prosecutor demanded that claimant swear to innocence on Bible in church as condition of dropping charges; right not to be forced to participate in religious ceremony clearly established), cert. denied sub nom., D’Amelia v. Doe, 117 S. Ct. 1244 (1997); Woods v. Smith, 60 F.3d 1161, 1167 (Sth Cir. 1995) (qualified immunity inapplicable where inmate showed that prison officials violated constitutional right to be free from retaliation for exercise of First Amendment right of access to courts clearly established at time of incident), cert. denied, 116 S. Ct. 800 (1996); Haley v. Gross, 86 F.3d 630, 646 (7th Cir. 1996) (qualified immunity inapplicable where prisoner burned in fire started by cellmate; prison officials admitted they knew of duty to protect inmates from other inmates and could not reasonably believe indifference to prisoner’s pleas for help lawful); Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995) (qualified immunity inapplicable where prisoner showed that prison officials violated clearly established law when they showed deliberate indifference to prisoner’s serious medical need); Malik v. Brown, 71 F.3d 724, 730 (9th Cir. 1995) (qualified immunity inapplicable where inmate’s First Amendment interest in using religious name clearly established); Penrod v. Zavaras, 94 F.3d 1399, 1404-05 (lOth Cir. 1996) (qualified immunity inapplicable where law well established that prison officials may not harass or retaliate against inmate for exercising his right to petition government for redress of grievances) and McMillian v. Johnson, 88 F.3d 1554, 1570 (llth Cir. 1996) (qualified immunity inapplicable where clearly established law prohibited state officials from knowingly using perjured testimony to convict defendant and reasonable official should have known that coercing witness to testify falsely would violate arrestee’s constitutional rights), cert. denied, 117 S. Ct. 2514 (1997). Public officials are presumed to be aware of the law governing their conduct. See Long v. Norris, 929 F.2d 1111, 1115 (6th Cir. 1990) (public officials cannot rely on ignorance of even most esoteric aspects of law to avoid liability). The reasonableness standard is determined “under settled law in the circumstances.” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam); see Johnson v. Hay, 931 F.2d 456, 461 (8th Cir. 1991) (government official not required to guess, at his peril, future development of constitutional doctrine, and cannot be held liable for violation of extremely abstract rights). 3113. Buckley, 113 S. Ct. at 2615-16.

3114. Compare Cleavinger v. Saxner, 474 U.S. 193, 206-07 (1985) (federal prison disciplinary

committee members and warden entitled to qualified immunity in suit claiming that administrative detention for inciting work stoppage violated prisoner’s constitutional rights); Cookish v. Powell, 945 F.2d 441, 449 (lst Cir. 1991) (per curiam) (prison official entitled to qualified immunity in suit claiming violation of prisoner’s Fourth Amendment rights by conducting body cavity search in view of prison guards of opposite sex); Davidson v. Scully, 114 F.3d 12, 14-IS (2d Cir. 1997) (prison officials entitled to qualified immunity for alleged constitutional violation arising from refusal to allow inmate’s sealed mail to go to governmental agency); Lue v. Moore, 43 F.3d 1203, 1206 (3d Cir. 1994) (prison officials entitled to qualified immunity in 1983 suit alleging denial of equal access to vocational training); Winfield v. Bass, 106 F.3d 525, 532 (4th Cir. 1997) (prison officials entitled to qualified immunity in 1983 suit by inmate allegedly injured in attack after prison oficials failed to immediately confiscate alcoholic beverages); Ganther v. Ingle, 75 F.3d 207, 211 (Sth Cir. 1996) (prison officials entitled to qualified immunity in ordering inmate to stop holding religious services where officials cited administrative and space limits); Sheets v. Moore, 97 F.3d 164, 167-68 (6th Cir. 1996) (correctional facility manager entitled to qualified immunity from suit alleging that prohibition of receipt of bulk mail violated First Amendment), cert. denied, 117 S. Ct. 1261 (1997); Craddick v. Duckworth, 113 F.3d 83, 85 (7th Cir. 1997) (reformatory superintendent entitled to qualfied immunity from claim that Free Exercise clause was violated when Native American inmate not allowed to wear medicine bag); Jensen v. Clarke, 94 F.3d 1191, 1196-97 (8th Cir. 1996) (prison officials entitled to qualified immunity in 1983 claim alleging randomly assigning new inmates to double cells produced increased risk of cellmate violence in violation of Eighth Amendment); Osolinski v. Kane, 92 F.3d 934, 938 (9th Cir. 1996) (prison officials entitled to qualified immunity in 1983 claim alleging failure to repair oven violated Eighth Amendment); Werner v. McCotter, 49 F.3d 1476, 1481-82 (lOth Cir. 1995) (prison officials entitled to qualified immunity from damage claims in suit alleging unconstitutional interference with prisoner’s free exercise of religion) and Haney v. City of Cumming, 69 F.3d 1098, 1102-03 (llth Cir. 1995) (county jail guard entitled to qualified immunity in 1983 claim alleging failure to prevent inmate’s suicide violated Eight Amendment), cert. denied, 116 S. Ct. 1826 (1996) with Richardson v. McKnight, 117 S.Ct. 2100, 2107 (1997) (prison guards employed by private prison management firm not entitled to qualfied immunity because no a firmly rooted tradition of immunity applicable to privately employed prison guards, and immunity doctrine’s purposes not served by immunity for private prison guards); Williams v. Greifinger, 97 F.3d 699, 706-07 (2d Cir. 1996) (prison official not entitled to qualified immunity for objectively unreasonable actions in keeping inmate in “medical keeplock” without out-of-cell exercise until he submitted to TB testing); Bieregu v. Reno, 59 F.3d 1445, 1459 (3d Cir. 1995) (prison officials not entitled to qualified immunity in suit alleging constitutional violations by opening prisoner’s incoming legal mail outside his presence); Rochon v. City of Angola, 122 F.3d 319, 320 (Sth Cir. 1997) (prison officials not entitled to qualified immunity against inmate’s 1983 claim that prison smoking policies endangered his health); Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994) (prison officials not entitled to qualified immunity for knowing and intentional violation of court order mandating end to racial segregation); Haley v. Gross, 86 F.3d 630, 646 (7th Cir. 1996) (qualified immunity inapplicable where prisoner burned in fire started by cellmate where prison officials admitted knowledge of duty to protect inmates from other inmates and indifference to prisoner’s pleas for help not reasonable); Cornell v. Woods, 69 F.3d 1383, 1390 (8th Cir. 1995) (prison officials not entitled to qualified immunity from civil rights claims by inmate who alleged transfer from medium to high security prison in retaliation for exercise of constitutional right to speak with penitentiary’s internal affairs office concerning suspected violations); Newell v. Sauser, 79 F.3d IIS, 118 (9th Cir. 1996) (prison officer not entitled to qualified immunity in seizing computer-generated legal papers prepared on behalf of another inmate) and Mitchell v. Maynard, 80 F.3d 1433, 1447 (lOth Cir. 1996) (prison officer not entitled to qualified immunity in conditions of confinement claims because alleged conditions arguably violate clearly established constitutional right).

3115. Compare Hunter, 502 U.S. at 228 (Secret Service officers entitled to qualified immunity in case alleging arrest made without probable cause when officers had trustworthy information that suspect had written letter containing reference to assassinating President, suspect was cognizant of President’s whereabouts, and suspect refused to answer questions about whether he intended to harm President); Soto v. Flores, 103 F.3d 1056, 1064-65 (lst Cir.) (police officers entitled to qualified immunity from due process claim arising from failure of police to prevent father from killing his children), cert. denied, 118 S. Ct. 71 (1997); Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996) (police officer entitled to qualified immunity in alleged use of excessive force where handcuffing individual on ground not objectively unreasonable); Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83 (3d Cir. 1995) (police officers entitled to qualified immunity where officers believed probable cause existed to arrest city councilman for official misconduct, no allegation that officers altered surveillance tapes or misrepresented context in affidavit); Jackson v. Long, 102 F.3d 722, 731 (4th Cir. 1996) (sheriff entitled to qualified immunity against discharged jailers’ 1983 action alleging they were deprived of liberty interests in their reputations); Baker v. Putnal, 75 F.3d 190, 199 (Sth Cir. 1996) (police chiefs entitled to qualified immunity in 1983 suit claiming failure to provide proper supervision and training of officer who shot

and killed decedent where no evidence of deliberate indifference overcoming qualified immunity); Brennan v. Township of Northville, 78 F.3d 1152, 1156 (6th Cir. 1996) (police officers entitled to qualified immunity in detaining individual from 6:00 p.m. until arraignment the following afternoon because no magistrate available for evening arraignment); Kunik v. Racine County, 106 F.3d 168, 174 (7th Cir. 1997) (police officer entitled to qualified immunity from pregnant suspect’s 1983 claim that her constitutional rights were violated when she was told that other suspects had already confessed and that her child might be born in prison); Veneklase v. City of Fargo, 78 F.3d 1264, 1269 (8th Cir.) (police officers entitled to qualified immunity for arrest of anti-abortion protestors where no clearly established right to picket in route encompassing residence of clinic administrator), cert. denied, 117 S. Ct. 178 (1996); Williams v. City and County of Denver, 99 F.3d 1009, 1021 (lOth Cir. 1996) (police officer who killed motorist when he sped through intersection without using siren while responding to nonemergency call entitled to qualified immunity) and Cottrell v. Caldwell, 85 F.3d 1480, 1491-92 (llth Cir. 1996) (police officers entitled to qualified immunity in asphyxiation of arrestee while detained in automobile with head in space between front and rear seats; no indication officers consciously disregarded risk of suffocation, and officers not trained how to recognize signs of suffocation) with In re State Police Litigation, 88 F.3d 111, 126-27 (2d Cir. 1996) (police officers not entitled to qualified immunity in routinely tape recording all telephone conversations in police barracks to which arrestees were transported); Rogers v. Powell, 120 F.3d 446, 454-55 (3d Cir. 1997) (state trooper not entitled to qualified immunity for unlawful arrest based on rumors of existence of arrest warrant in adjoining county); Nerren v. Livingston Police Dept., 86 F.3d 469, 474 (Sth Cir. 1996) (police officers not entitled to qualified immunity where failed to present legitimate governmental objective for denial of medical attention to arrestee); Centanni v. Eight Unknown Officers, IS F.3d 587, 592 (6th Cir.) (police not entitled to qualified immunity when law clearly established that seizure and detention of person not suspected of criminal activity required probable cause and police lacked such probable cause); Erickson v. Holloway, 77 F.3d 1078, 1Q81 (8th Cir. 1996) (police officer not entitled to qualified immunity where deputy intentionally interfered with arrestee’s treatment prescribed for serious medical condition); Carlo v. City of Chino, IOS F.3d 493, SOO (9th Cir. 1997) (police officer not entitled to qualfied immunity for denying arrestee’s clear statutory right to access to telephone), petition for cert. filed, 66 U.S.L.W. 3324 (U.S. Oct. 24, 1997) (No. 97-715); Mick v. Brewer, 76 F.3d 1127, 1135-36 (lOth Cir. 1996) (police officer not entitled to qualified immunity where clearly established affirmative duty to intervene to prevent another official’s use of excessive force) and Lancaster v. Monroe County, 116 F.3d 1419, 1424 (llth Cir. 1997) (county sheriff and jailers who delayed treatment for pretrial detainee until after suffered seizure not entitled to qualified immunity in 1983 action for detainee’s death).

3116. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1151-52 (2d Cir. 1995) (prosecutors not entitled to absolute immunity for keeping arrestee in state custody after termination of all state charges, but rather entitled to only qualified immunity, because administrative, not prosecutorial task); McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161 (Sth Cir. 1995) (per curiam) (executive officers responsible for promulgating rules and policies governing parole proceedings not entitled to absolute immunity, but

rather entitled to only qualified immunity); Houston v. Partee, 978 F.2d 362, 367 (7th Cir. 1992) (prosecutors not entitled to absolute immunity for failure to disclose exculpatory evidence acquired when no longer personally prosecuting case because actions akin to those of police); Gobel v. Maricopa County, 867 F.2d 1201, 1205 (9th Cir. 1989) (prosecutors not entitled to absolute immunity for making allegedly false statements about arrestees because such statements not quasi-judicial acts); Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264, 266 (lOth Cir. 1994) (state prosecutor not entitled to absolute immunity, but rather entitled to only qualified immunity, for alleged intervention to forestall execution of inmate’s writ of habeas corpus because, at best, constituted administrative duty); Marx v. Gumbinner, 855 F.2d 783, 791 (llth Cir. 1988) (prosecutors not entitled to absolute immunity for damages resulting from issuance of allegedly defamatory press release).

In Buckley, the Supreme Court held that the prosecutors were not entitled to absolute immunity when they endeavored to determine whether a bootprint found on a door at the scene of a crime had been left by the suspect or when they announced their intentions to seek indictment of the suspect at a press conference because they were not functioning in a judicial capacity. 113 S. Ct. at 2616-17. The Supreme Court held that the investigations related to the bootprint were akin to the executive functions of detectives and therefore entitled to only qualified immunity. Id.; cf. Rose v. Bartle, 871 F.2d 331, 345-46 (3d Cir. 1989) (granting absolute immunity to damages on 1983 claim that district attorney had solicited perjured testimony, because such testimony related to prosecutors’ quasi-judicial, not investigative, functions). The Court also found that absolute immunity was unavailable for statements made to the press, because absolute immunity under 1983 is derived from common law immunities, and at common law there was no immunity for statements made to the press. Buckley, 113 S. Ct. at 2615-18.

3117. Hunter, 502 U.S. at 228.

3118. Elder v. Holloway, 114 S. Ct. 1019, 1023 (1994) (in 1983 claim for damages resulting from warrantless arrest, court of appeals improperly refused to consider case law not discovered by district court; case law was relevant to question raised by defendant’s claim of qualified immunity regarding whether police violated a clearly established right); accord Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995) (court reviewed district court’s denial of qualified immunity claim de novo in action alleging prison officials violated inmate’s constitutional rights when they transferred him to less desirable prison); Beyerbach v. Sears, 49 F.3d 1324, 1325 (8th Cir. 1995) (court reviewed district court’s denial of summary judgment on qualified immunity grounds de novo in action alleging violation of inmate’s Eighth Amendment right to be free from cruel and unusual punishment); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995) (court reviewed district court’s denial of summary judgment on qualified immunity grounds de novo in action alleging violation of inmate’s First Amendment and due process rights when prison officials transferred him to more secure facility); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (lOth Cir. 1995) (court reviewed district court’s granting of summary judgment on qualified immunity grounds de novo in action alleging violation of inmate’s Eighth Amendment rights when prison official engaged in verbal sexual harassment); Pickens v. Hollowell, 59 F.3d 1203, 1205 (llth Cir. 1995) (court reviewed district court’s denial of summary judgment on qualified immunity grounds de novo in action alleging violation of arrestee’s Fourth Amendment rights by sheriff’s deputies). Appellate courts should consider all relevant precedents, not merely those presented to the district court. Elder, 114 S. Ct. at 1023.

3119. Johnson v. Jones, 115 S. Ct. 2151, 2159 (1995) (holding that police officers entitled to assert qualified immunity could not seek immediate appeal of district court order denying motions for summary judgment in arrestee’s 1983 action because summary judgment record raised genuine issue of material fact).

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