Dominque v. Telb

Citation831 F.2d 673
Decision Date23 October 1987
Docket NumberNo. 86-3763,86-3763
PartiesWilliam DOMINQUE, Plaintiff-Appellee, v. James A. TELB, Sheriff; et al., Defendants, Jimmy G. Putnam, Assistant Deputy Director, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Thomas A. Kulick (argued), Asst. Atty. Gen., Corrections Div., Lansing, Mich., for defendant-appellant.

Joseph P. Dawson (argued), Cox & Vassar, Toledo, Ohio, for plaintiff-appellee.

Before LIVELY, Chief Judge, and ENGEL and KRUPANSKY, Circuit Judges.

ENGEL, Circuit Judge.

This appeal requires us to address further the procedural problems which arise in framing and resolving, before trial, claims of qualified immunity in civil rights actions against public officers. See generally, Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); and Kennedy v. City of Cleveland, 797 F.2d 297 (6th Cir.1986).

In Mitchell v. Forsyth, the question whether the Attorney General's action was clearly proscribed by federal constitutional law at the time it was taken was not a particularly difficult one, once his conduct was determined to be potentially subject to the defense of qualified, but not absolute immunity. At the time the Attorney General made his determination, the law was uncertain whether he could authorize the challenged wiretaps in the good-faith belief that they were not prohibited by the federal wiretapping statute because of their involvement with national security. It was only after United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), that such action could clearly be said to have violated federal law. Therefore, the court in Mitchell v. Forsyth held that the Attorney General was entitled to a defense of qualified immunity and dismissed the claims against him because the law was unsettled at the time of his action. Mitchell v. Forsyth, 472 U.S. at 530-36, 105 S.Ct. at 2821. The Supreme Court's recognition in that case of the right to appeal the denial of this defense before trial, and in some cases even before discovery, was the subject of our opinion in Kennedy v. City of Cleveland, supra. The issue of whether the law was clearly established at the time is more complicated in this appeal, and hence this case more likely typifies appeals arising under Harlow v. Fitzgerald, Mitchell v. Forsyth, and Kennedy.

Defendant Jimmy G. Putnam is the Assistant Deputy Director of the Michigan Department of Corrections. He appeals an order of a United States Magistrate, upheld by the district court, denying his motion to dismiss because of good-faith immunity the plaintiff's civil rights claim under 42 U.S.C. Sec. 1983. The section 1983 claim alleges that Putnam, by filing an unlawful detainer, deprived Dominque of his liberty without due process of law in violation of the Fifth and Fourteenth Amendments. The district court dismissed Dominque's complaint under section 1985 and his claims against the other defendants, but denied Putnam's combined motion for dismissal and for summary judgment as to the section 1983 claim on the ground that there were material issues of fact concerning Putnam's defense of qualified immunity. Putnam's notice of appeal was timely, and specifically confines itself to the order entered July 14, 1986, denying his motion to dismiss plaintiff's 42 U.S.C. Sec. 1983 claim.

In 1970, plaintiff Dominque was sentenced by the Michigan courts to serve a 15-year sentence for robbery. In 1976, Dominque escaped from confinement in Michigan and committed an armed robbery in Ohio. Thereafter apprehended in Michigan, he was held in the Monroe County Jail on Michigan charges of carrying a concealed weapon and possessing stolen property. Dominque waived extradition to Ohio to face the robbery charges in exchange for the dismissal of the described Michigan criminal charges. On that day, however, the Michigan Department of Corrections filed a detainer with Monroe County authorities. Extradited to Ohio, he was convicted and sentenced in Ohio, but was released in 1979 by authorities there. No detainers had been filed with them against such release. In 1981, Dominque was arrested and convicted for a minor theft offense, but was released in 1982 when there were again no detainers prohibiting such release.

On December 4, 1984, Dominque was stopped for a traffic offense in Ohio. Although plaintiff's outstanding Ohio traffic violation charge was disposed of, plaintiff was detained without bond because defendants had forwarded to the Lucas County Sheriff's Department a detainer and an administrative warrant for the return of plaintiff as an escaped inmate based upon his alleged unauthorized leave taken in January, 1976. According to plaintiff, he had, through counsel, informed Putnam that under established law, the Michigan Department of Corrections had waived jurisdiction over him by waiting an unreasonable time to file the detainer. He also asserted that Putnam had wrongfully denied the waiver and had wrongfully disputed the alleged action of an unknown employee/agent of the Department of Corrections who had not earlier placed a detainer for the plaintiff's return from the State of Ohio, even though he had known of plaintiff's actual incarceration and whereabouts. Plaintiff's petition for habeas corpus filed in the Ohio courts, challenging the Michigan detainer and plaintiff's return on the Michigan administrative warrant, was denied. Plaintiff was thereupon returned to Michigan after Ohio Governor Celeste issued a warrant of arrest and extradition.

We note initially that a serious question is raised whether an individual incarcerated under state law may maintain a civil rights action alleging unconstitutional activity on the part of the state officers which if proved might bear upon his right to release from incarceration even though that was not directly sought. Plaintiff's complaint appears to allege that he remains incarcerated in Michigan due to the execution of the void warrant. Serious questions exist, therefore regarding the propriety of a civil rights action which in essence challenges the validity of incarceration, which, absent a direct appeal in Michigan courts, could be remedied only by writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 1836, 36 L.Ed.2d 439 (1973). Since appeals authorized by Mitchell v. Forsyth and Kennedy v. City of Cleveland are limited, however, we address only the narrow question of defendant Putnam's right to avoid defending a civil rights action against him personally and/or his right to avoid liability upon a proper claim of qualified immunity. Under these circumstances we therefore expressly refrain from addressing the question of the propriety of this civil rights action, but see Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). 1

We construe the overall complaint, while somewhat ambivalently worded, as clearly seeking money damages from defendant Putnam in his individual capacity. It seems also that the district judge proceeded on that assumption, and we think this analysis entitles Putnam to a determination from the district court, and on appeal therefrom if adverse to him, whether he must bear the burden and expense of standing trial regarding his personal liability. See Kennedy, 797 F.2d at 298-99. 2

The order and opinion of the district judge, which adopted the report and recommendations of the magistrate, denied summary judgment for the following reasons:

[D]efendant argues that plaintiff's action is barred because the defendants enjoy qualified immunity from damage liability under 42 U.S.C. Sec. 1983. Defendant directs the Court's attention to Procunier v. Navarette, 434 U.S. 555 [98 S.Ct. 855, 55 L.Ed.2d 24] (1978), where the Supreme Court held that prison officials and officers have a qualified immunity under 42 U.S.C. Sec. 1983. Further, in Harlow v. Fitzgerald, 457 U.S. 800 [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982), the Court held that this qualified immunity bars suits against the defendant official unless he knew or should have known that his conduct violated clearly established rights. Id. at 815-19 .

As plaintiff points out, defendant has failed to demonstrate that he is entitled to qualified immunity under Sec. 1983 in this cause. The determinative question is whether defendant Putnam knew or should have known that his actions violated plaintiff's established rights. Plaintiff maintains that defendant did know that he was violating plaintiff's rights at the time of the violation. Defendant, however, merely contends that he is entitled to good faith immunity without offering the court any support for his contention. Clearly, there is a genuine issue of material fact in dispute regarding whether defendant Putnam knew or should have known that his actions, issuing and enforcing the allegedly unlawful detainer against plaintiff, violated plaintiff's clearly established rights. Accordingly, I find that defendant's second basis for summary judgment is not well taken.

While the district judge's opinion is accurate in many respects, we think it misconstrues the thrust both of the Supreme Court cases such as Mitchell v. Forsyth and the more recent language of our decision in Kennedy. The important question concerns which party bears the burden of going forward once the defendant raises the qualified immunity defense. As evidenced by its opinion, the trial court placed upon the defendant the entire burden to justify his entitlement to qualified immunity. This was error.

[T]he plaintiff must plead facts which, if true, describe a violation of a clearly established statutory or constitutional right of which a reasonable public official, under an...

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