Horne v. Coughlin

• Decision Date: 21 May 1999
• Docket Number: D,No. 301,301
• Citation: 178 F.3d 603
• Parties: Willie HORNE, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner, New York State Department of Correctional Services; Philip Coombe, former Superintendent, Eastern Correctional Facility; Donald Selsky, Coordinator, Inmate Discipline; Arthur Kracke, Lieutenant, Eastern Correctional Facility; and Joseph A. Demskie, Captain, Sullivan Correctional Facility, in their individual and official capacities, Defendants-Appellees. ocket 97-2047.
• Court: U.S. Court of Appeals — Second Circuit

Page 603

178 F.3d 603

Willie HORNE, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner, New York State

Department of Correctional Services; Philip Coombe, former

Superintendent, Eastern Correctional Facility; Donald

Selsky, Coordinator, Inmate Discipline; Arthur Kracke,

Lieutenant, Eastern Correctional Facility; and Joseph A.

Demskie, Captain, Sullivan Correctional Facility, in their

individual and official capacities, Defendants-Appellees.

No. 301, Docket 97-2047.

United States Court of Appeals,

Second Circuit.

Argued Nov. 17, 1997.

Decided May 21, 1999.

Deborah Schneer, Poughkeepsie, N.Y. (Kenneth R. Stephens, Prisoners' Legal Services of New York, Poughkeepsie, N.Y., Of Counsel), for Plaintiff-Appellant.

Katharine Demgen, New York, N.Y. (Dennis C. Vacco, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte and Belina Anderson, Assistant Attorneys General, New York, N.Y., Of Counsel), for Defendants-Appellees.

Before: CARDAMONE, WALKER, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

On consideration of the application for rehearing and rehearing in banc, the question was raised whether, under County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), we should have first declared whether plaintiff stated a claim for violation of a constitutional right, and only if he did so, decided whether defendants were entitled to qualified immunity because the right was not clearly established at the time of the alleged violation. A footnote in Sacramento describes this sequence of decisions as "[n]ormally" the "better approach." Id. at 1714 n. 5. We nonetheless believe, like the Eleventh Circuit in Santamorena v. Georgia Military College, 147 F.3d 1337, 1343-44 (11th Cir.1998), that courts may, in appropriate cases, go directly to the qualified immunity issue. See also Stuto v. Fleishman, 164 F.3d 820, 825 (2d Cir.1999)(describing "preference" of Sacramento as "nonmandatory"); Connell v. Signoracci, 153 F.3d 74, 80 (2d Cir.1998) (describing "preference"). This is an appropriate case.

At the outset, we share the Eleventh Circuit's doubt that the Supreme Court intended its hortatory language in Sacramento to bind lower courts. See Santamorena, 147 F.3d at 1343 n. 14. The suggested approach would require courts to declare new constitutional rights in dictum--where the declaration of the new constitutional right has no influence on the result of the case. If we believed that a given allegation stated a constitutional claim but that this claim was not clearly established at the time the defendant acted, the defendant would be entitled to have the case dismissed regardless of our conclusion that a constitutional right was violated. The finding of the constitutional right would be dictum, not essential to our holding that defendants had qualified immunity, and not binding in future cases. See Seminole Tribe v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ("When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound."); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.) ("It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.").

As is often the case with dictum, our declaration of a new constitutional right would run a high risk of error. Where an asserted right is neither clearly established nor likely to be asserted again against the same defendant, the defendant will have little incentive to contest the merits of the constitutional right vigorously, knowing that qualified immunity provides a complete defense. A court may therefore be swayed by the plaintiff's vigorous assertion of a constitutional right where a more vigorous defense might have showed that the claim is unwarranted. Adjudication in such a case is unreliable because the presentation lacks the "concrete adverseness ... upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (discussing standing requirement). More broadly, in addressing a constitutional question whose answer would have no effect on the outcome of the case, we would have violated the "fundamental and longstanding principle of judicial restraint [that] requires ... courts [to] avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). The Court's use of cautious language in the Sacramento footnote may reflect its awareness of these dangers.

Furthermore, it is worth noting that the Supreme Court in Sacramento reached the conclusion that there was no constitutional right. That finding was the holding; the Court directed dismissal on that basis. The same was true in Conn. v. Gabbert, --- U.S. ----, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). In contrast, had the Court validated the asserted new constitutional right, that would have been dictum; it would have had no effect on the disposition, as the defendant would have been entitled to qualified immunity because the right was not yet clearly established. Perhaps what the court means in Sacramento is that where it is clear the new constitutional right claimed by the plaintiff does not exist, the court should dismiss on that basis rather than leave the law unclear. Such a practice would not draw the lower courts into declaring new constitutional rights in dictum.

Needless to say, if the Supreme Court's discussion in Sacramento is a holding that requires adjudication of the claimed constitutional right, we are bound to follow it even if we think it unwise. And even if it is not a holding and therefore has no binding force, we would nonetheless give it great deference out of respect for the Supreme Court if we understood it as a firm recommendation that the procedure should always be followed.

But the discussion in Sacramento is not a holding. The Supreme Court would have decided the case before it the same way regardless whether a rule requires courts always to consider the constitutional question before reaching the issue of immunity.

Nor does the Sacramento discussion, regardless how characterized, purport to establish a rigid rule. The Court spoke merely of a "better approach," as opposed to the alternative of "always" first deciding qualified immunity. See Sacramento, 118 S.Ct. at 1714 n. 5. Clearly the discussion leaves room for discretion, based on appropriate considerations. ¹

Furthermore, the Court placed the tentatively worded suggestion in a footnote--scarcely the placement one would expect had the Court intended to command the lower courts to abandon a widespread practice and a generally recognized precept of avoiding unnecessary constitutional adjudication. ² In joining the Court's opinion, Justice Breyer stated that the Court's precedents "should not be read to deny lower courts the flexibility, in appropriate cases, to decide § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling with constitutional issues that are either difficult or poorly presented." Id. at 1723 (Breyer, J., concurring). We understand the passage in the Sacramento opinion as a suggestion that the lower courts should be mindful lest the repeated failure to consider constitutional issues allow "standards of official conduct ... to remain uncertain," without clarifying adjudication. Id. at 1714 n. 5. In this case, we considered it appropriate to abstain from the thorny constitutional issue and to proceed directly to the clear issue of immunity.

The key motivating factor in Sacramento is not applicable to this case. The constitutional question raised here is the validity of a prison regulation affecting the conduct of disciplinary proceedings. There is no reason to believe that the questioned regulation will repeatedly, or over a substantial time, escape judicial review by reason of qualified immunity. Whenever the regulation is applied, adequate opportunity will arise to challenge it in federal court. ³ Because qualified immunity is not a defense in injunctive actions, a prisoner can seek injunctive relief while the disciplinary hearing is pending, or indeed at any time while serving the punishment arising out of the hearing. Such a suit would require adjudication of the constitutional question that we do not answer here. Accordingly, the danger of sustained uncertainty that concerned the Court in Sacramento is not present in this case; ⁴ in contrast, the traditional arguments for restraint operate with full force.

Two further questions warrant consideration. First, the Supreme Court receives careful and thorough briefing in virtually all its cases. The same is not always true in the lower courts. The poor quality of the briefing in a particular case may make it all the more perilous for a court to render an advisory ruling asserting (or denying) an important constitutional right. Second, the federal courts are heavily burdened by their caseload. Litigants often face substantial delays; many courts routinely deny oral argument; and many cases are decided by summary order because the courts haven't time to make a carefully crafted full opinion in each case. See Chief Justice William H. Rehnquist, The 1997 Year-End Report on the Federal Judiciary, The Third Branch, Jan. 1998, at 2 (stating that the "upward spiral" of a "large and expanding workload" threatens to "outstrip [the] resources" of the federal judiciary). The question arises whether limited, burdened judicial resources should properly be...