Horne v. Coughlin, Docket No. 97-2047

• Citation: 191 F.3d 244
• Decision Date: 01 August 1997
• Docket Number: No. 301,Docket No. 97-2047,301
• Parties: (2nd Cir. 1999) 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. -
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 244

191 F.3d 244 (2nd Cir. 1999)

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.

Docket No. 97-2047

No. 301 - August Term, 1997

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: November 17, 1997

Decided: May 21, 1999

Amended: August 25, 1999

Plaintiff, a New York State prisoner, sued prison authorities under 42 U.S.C. § 1983, alleging that his constitutional rights were violated by the employment of a procedure prescribed by New York regulation for the provision of an employee assistant in prison disciplinary proceedings. The district court dismissed the complaint. The Court of Appeals affirmed the decision by reason of the defendants' qualified immunity.

On application for rehearing and rehearing in banc, the question was raised whether the Court under County of Sacramento v. Lewis, 118 S. Ct. 1708 (1998), should have passed on the constitutional question either instead of, or in addition to, the ruling based on qualified immunity. The Court of Appeals (Leval, J.) interprets Sacramento not to require lower courts to express views on the constitutional question in all cases, and rules that it is preferable in this case not to express such views.

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.

Judge Cardamone dissents by separate opinion.

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, 118 S. Ct. 1708 (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.

In explaining this approach, the Court pointed out that unless the constitutional issue could arise in a circumstance where qualified immunity is not a defense-in a suit to enjoin future conduct, in an action against a municipality, or in the litigation of a suppression motion in a criminal case-the constitutional issue might repeatedly evade decision. As a result, if courts always avoided the constitutional issue by repeatedly dismissing suits on the basis of the defendants' immunity, "standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals." Id.

We recognize the wisdom of the Supreme Court's exhortation. Without doubt, in certain fact patterns allegations of unconstitutional conduct by state officers might repeatedly and indefinitely escape review. If the challenged conduct occurs spontaneously and inflicts harm on the victim without warning, potential victims would have no opportunity to sue for injunctive relief. A retrospective action for damages cannot be brought against a state under §1983, because a state is not subject to suit under the act. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989). And, if the conduct is by municipal officers but is not a part of a municipal policy or practice, then under Monell v. Department of Social Servs., 436 U.S. 658, 690-61 (1978), an action for damages also cannot be brought against the municipality. As a result, in some cases, the only available defendants would be individual officers who could assert their qualified immunity in repeated suits so long as courts had not put them on notice of the illegality of their conduct. If the questioned conduct was not a part of the collection of evidence for a criminal case, the victims would also have no opportunity to cause judicial review through a motion to suppress. Official conduct in such cases might thus indefinitely escape judicial appraisal if the courts addressed only the issue of immunity. Neither state officials nor the public would receive judicial guidance on the lawfulness of injurious official practices.

Similarly, even where plaintiffs can have their constitutional claims adjudicated, plaintiffs may effectively be limited to state courts because of the Rooker-Feldman or Younger doctrines or other rules of federalism. See Wilkinson v. Russell, 182 F.3d 89, 106 (2d Cir. June 17, 1999). The consequence would be that such complaints would indefinitely escape federal court review (except in the tiny number of cases heard by the Supreme Court on review of a state's highest court). The Supreme Court has expressed the view, however, that "the very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights." Patsy v. Board of Regents, 457 U.S. 496, 503 (1982) (internal quotations and citations omitted).

Those considerations undoubtedly argue in favor of a federal court's reaching the constitutional question in a suit brought under § 1983, notwithstanding the obligation to dismiss by reason of qualified immunity. On the other hand, the circumstances that favor reaching the constitutional issue are not always present. And there are powerful arguments against reaching out in dictum to establish new constitutional rights in circumstances where that reasoning plays no role whatsoever in the disposition of the action.

First, the Supreme Court has for generations warned against reaching out to adjudicate constitutional matters unnecessarily. See, e.g., Ashwander v. TVA, 297 U.S. 288, 346 47 (1936) (Brandeis, J., concurring); Burton v. United States, 196 U.S. 283, 295 (1905); Liverpool, N.Y. & Phila. Steamship Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). It is a "fundamental and longstanding principle of judicial restraint [that] courts 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 (1988). Under our system of constitutional government, we generally prefer some prolongation of uncertainty over unnecessary, hasty resolution of constitutional questions.

Furthermore, where there is qualified immunity, a court's assertion that a constitutional right exists would be pure dictum. See Wilkinson v. Russell, 182 F.3d at 112 (Calabresi, J., concurring). It would play no role in supporting the action taken by the court - the dismissal of the case by reason of qualified immunity. Such dictum would, of course, not be binding in future cases. See Seminole Tribe v. Florida, 517 U.S. 44, 67 (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 (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. Judges risk being insufficiently thoughtful and cautious in uttering pronouncements that play no role in their adjudication. Furthermore, parties may do an inadequate job briefing and presenting an issue that predictably will have no effect on the outcome of the case. A governmental official who knows the suit against him must be dismissed by reason of qualified immunity because the asserted right was not clearly established may have little incentive to contest vigorously the constitutional issue. This is all the more likely where the challenged conduct occurs in a nonrecurring fact pattern, so that the claimed right is not likely to be asserted again against the same defendant. A court may therefore be swayed by the plaintiff's forceful assertion of a constitutional right where a more vigorous and thoroughly researched 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 (1962).

The odd status of declarations of constitutional rights in dictum will likely cause further serious problems. District courts and courts of appeals will declare new constitutional rights as a part of a judgment in favor of the government defendants. The government defendants, as the prevailing parties, will have no opportunity to appeal for review of the newly declared constitutional right in the higher courts. If those government actors defer to the courts' declarations and modify their procedures accordingly, new constitutional rights will have effectively been established by the dicta of lower court without the defendants having the right to appellate review.¹ Only by defying the views of the lower court, adhering to practices that have been declared illegal, and thus inviting new suits will the state officials be able to ensure appellate review of lower court declarations of the...