Warner v. Orange County Dept. of Probation

• Decision Date: 14 May 1997
• Docket Number: No. 1760,D,1760
• Citation: 115 F.3d 1068
• Parties: Robert WARNER, Plaintiff-Appellee, v. ORANGE COUNTY DEPARTMENT OF PROBATION, Defendant-Appellant. ocket 95-7055.
• Court: U.S. Court of Appeals — Second Circuit

Page 1068

115 F.3d 1068

Robert WARNER, Plaintiff-Appellee, v. ORANGE COUNTY DEPARTMENT OF PROBATION, Defendant-Appellant.

No. 1760, Docket 95-7055.

United States Court of Appeals Second Circuit.

Argued July 20, 1995.

Decided Sept. 9, 1996.

As Amended May 14, 1997.

Order Vacating Decision and

Remanding Case May 14, 1997.

On Order of Remand

Robert N. Isseks, Goshen, NY (Alex Smith, Middletown, NY, of counsel), for Plaintiff-Appellee.

Richard B. Golden, Orange County Attorney, Goshen, NY (M. Kevin Coffey, Antoinette Gluszak, Laurie T. McDermott, of counsel), for Defendant-Appellant.

Before: WINTER, LEVAL, and CALABRESI, Circuit Judges.

LEVAL, Circuit Judge:

Orange County Department of Probation ("OCDP"), the defendant, appeals from a decision of the district court awarding declaratory judgment, nominal damages of one dollar, and attorney's fees to plaintiff Robert Warner in his civil action under 42 U.S.C. § 1983. Warner claimed that a probation condition imposed on him as part of a criminal sentence, which required him to attend meetings of Alcoholics Anonymous ("A.A."), forced him to participate in religious activity in violation of the First Amendment's Establishment Clause, and that OCDP was responsible, in part because it recommended the A.A. therapy to the sentencing court as a condition of probation. OCDP contends it cannot be liable for Warner's exposure to A.A. pursuant to a sentence imposed by the court. We reject OCDP's arguments, and affirm the judgment.

Background

On November 13, 1990, Warner pleaded guilty to driving drunk and without a license in violation of New York law. N.Y. Veh. & Traf. Law §§ 511(2), 1192(1)(McKinney 1986 & Supp.1996). This was his third alcohol-related driving offense in a period of little The OCDP's report recommended a term of probation with six special conditions, which the department routinely recommends in cases of defendants with alcohol problems. These included that the probationer "totally abstain from the use of intoxicating beverages," avoid "establishment[s] where the primary business is the sale or consumption of alcohol," and, as the fifth condition, that he "attend Alcoholics Anonymous at the direction of [his] probation officer."

more than a year. Judge David L. Levinson, of the Town of Woodbury's Justice Court in Orange County, New York, accepted the plea and ordered the Orange County Department of Probation to prepare a presentence report.

These recommended special conditions were set forth on a standard form rider which OCDP routinely provided to sentencing judges in such cases. Judge Levinson sentenced Warner to three years of probation, imposing the special conditions recommended by the OCDP. In imposing these special conditions, Judge Levinson endorsed the Probation Department's standard form.

Warner attended A.A. meetings at the direction of his probation officer, Neal Terwilliger, from November 1990 through September 1992. However, in January of 1991, Warner complained to Terwilliger that, as an atheist, he found the religious nature of the A.A. meetings objectionable. The probation officer instructed Warner to continue his attendance. Some months later, Terwilliger determined that Warner lacked sufficient commitment to the program; he directed Warner to attend "Step meetings" and to seek another more advanced A.A. member as a "sponsor" to give him guidance and encourage his adherence to the program. The Step meetings were devoted to discussion of A.A.'s "Twelve Steps," which represented the heart of the therapy program.

The district court found that the program Warner was required to attend involved a substantial religious component. For example, the "Twelve Steps" included instruction that participants should "believe that a Power greater than ourselves could restore us"; "[make] a decision to turn our will and our lives over to the care of God as we [understand] Him "; "[a]dmit[ ] to God ... the exact nature of our wrongs"; be "entirely ready to have God remove all these defects ... [and] ask Him to remove our shortcomings"; and "[seek] through prayer and meditation to improve our conscious contact with God, as we [understand] Him."

Group prayer was a common occurrence at the meetings Warner attended. They frequently began with a religious invocation, and always ended with a Christian prayer. The district court found that the program "placed a heavy emphasis on spirituality and prayer, in both conception and in practice."

In July of 1992, Warner filed a motion in the Town of Woodbury Justice Court challenging the constitutionality of his consignment to A.A. The OCDP--after meeting with representatives from the local district attorney's office--responded that it could offer Warner therapy in another program. The municipal court judge then directed that nonreligious alternatives be made available and dismissed Warner's motion as moot. Warner subsequently brought this action in federal district court, seeking damages, as well as a declaratory judgment that OCDP had violated his First Amendment rights. After a bench trial, the district court found that compelling Warner to attend the program violated the Establishment Clause, and further determined that the OCDP was liable for the constitutional injury, notwithstanding that it was the sentencing judge--not the Probation Department--who had imposed the condition of A.A. participation. The court, however, found that Warner's claims of financially compensable injury were not convincing, and thus awarded nominal damages in the amount of one dollar, plus attorney's fees.

Discussion

OCDP asserts that the trial court committed a variety of errors. First, it claims that it cannot be liable because, under New York law, the determination of probation conditions is solely the responsibility of the sentencing judge. Second, it contests the district court's conclusion that requiring Warner to attend A.A. violated the Establishment

Clause. ¹ We disagree.

I. OCDP's Responsibility for the Sentence

To establish OCDP's liability for his sentence under 42 U.S.C. § 1983, Warner must first demonstrate that his injury resulted from a custom or policy of Orange County, as opposed to an isolated instance of conduct. Monell v. Department of Social Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 162-67, 90 S.Ct. 1598, 1611-13, 26 L.Ed.2d 142 (1970)(describing congressional intent in creating liability for custom or practice). The OCDP's recommendation that Warner be required to participate in A.A. therapy was unquestionably made pursuant to a general policy. This was one of six standard special conditions set forth on a form captioned "Additional Conditions of Probation Pertaining to Alcohol," which OCDP routinely submitted to sentencing judges in alcohol cases.

OCDP argues that it is nonetheless not legally responsible because it was the judge's sentencing decision, not the Probation Department's recommendation, that caused the harm. The County is certainly correct that in cases brought under § 1983 a superseding cause, as traditionally understood in common law tort doctrine, will relieve a defendant of liability. Jeffries v. Harleston, 52 F.3d 9, 14 (2d Cir.), cert. denied, 516 U.S. 862, 116 S.Ct. 173, 133 L.Ed.2d 114 (1995); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir.1989); Wagenmann v. Adams, 829 F.2d 196, 212 (1st Cir.1987). "[T]he Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under section 1983." Buenrostro v. Collazo, 973 F.2d 39, 45 (1st Cir.1992); see Malley v. Briggs, 475 U.S. 335, 344 n. 7, 106 S.Ct. 1092, 1098 n. 7, 89 L.Ed.2d 271 (1986); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961).

However, tort defendants, including those sued under § 1983, are " 'responsible for the natural consequences of [their] actions.' " Malley, 475 U.S. at 344 n. 7, 106 S.Ct. at 1098 n. 7 (quoting Monroe, 365 U.S. at 187, 81 S.Ct. at 484). As the First Circuit has explained, an actor may be held liable for "those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties." Gutierrez-Rodriguez, 882 F.2d at 561 (citations omitted). ²

A complex chain of events led to Warner's participation in religious exercises at the A.A. meetings. Two candidates present themselves as possible superseding causes of his injury that might relieve OCDP of liability: First, as the County argues, the judge's sentencing determination; second, the actions of the A.A. chapter that Warner attended.

A. Act of the Sentencing Judge

As the OCDP correctly points out, under New York law the determination of probation terms is a judicial task, which may not be delegated to probation officers. People ex. rel. Perry v. Cassidy, 23 A.D.2d 706, 257 N.Y.S.2d 228, 229 (1965); see also People v. Fuller, 57 N.Y.2d 152, 455 N.Y.S.2d 253, 256, 441 N.E.2d 563 (1982)(sentencing court must independently decide how much of probation department report to adopt). The probation department therefore argues that its role was purely advisory, and cannot have been the proximate cause of Warner's injury.

The Supreme Court, however, in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), rejected a similar argument. Malley was a civil rights action under § 1983 against a state trooper who had procured a warrant for the plaintiff's arrest by submitting an affidavit. Plaintiff claimed the affidavit was legally insufficient. The district court had dismissed the case, believing the police officer to be absolutely immune when swearing out a warrant. The Court of Appeals reversed, resuscitating the action. The officer argued in the Supreme Court not only that he was immune, but also that he was shielded from responsibility by his entitlement to rely on the judgment of the judicial officer...