Brule v. Southworth

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before CAMPBELL and BOWNES; LEVIN H. CAMPBELL
• Citation: Brule v. Southworth, 611 F.2d 406 (1st Cir. 1979)
• Decision Date: 28 December 1979
• Docket Number: No. 79-1343,79-1343
• Parties: Ronald BRULE et al., Plaintiffs, Appellees, v. Bradford SOUTHWORTH et al., Defendants, Appellants. First Circuit

Page 406

611 F.2d 406

Ronald BRULE et al., Plaintiffs, Appellees, v. Bradford SOUTHWORTH et al., Defendants, Appellants.

No. 79-1343.

United States Court of Appeals,First Circuit.

Argued Nov. 5, 1979.

Decided Dec. 28, 1979.

Paul L. Foster, Cranston, R. I., for defendants, appellants.

Lynette Labinger, with whom Abedon, Michaelson, Stanzler, Biener, Skolnik & Lipsey, Providence, R. I., was on brief, for plaintiffs, appellees.

Before CAMPBELL and BOWNES, Circuit Judges, and CLARKE, ^* District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal arises from a judgment of the district court awarding partial injunctive relief, and $1,000 damages each, to plaintiffs Ronald Brule and Julio Costa for an alleged violation of their first amendment rights by their superiors at the Rhode Island Adult Correctional Institution (ACI). Defendants Bradford E. Southworth, former director of the Department of Corrections, and William E. Laurie, former assistant director for Adult Services, appeal from the district court's judgment on three grounds: first, that the court lacked subject matter jurisdiction of this suit; second, that the district court's finding that plaintiffs were disciplined in retaliation for their exercise of protected rights was clearly erroneous; and third, that the court's award of damages was unwarranted.

A brief review of the events at ACI during the autumn of 1977 will help clarify the issues. On August 10, the district court entered an opinion holding that certain conditions at ACI amounted to cruel and unusual punishments in violation of the eighth amendment. Palmigiano v. Garrahy, 443 F.Supp. 956 (D.R.I.1977). Sixteen days later, a disturbance at the prison involving two prisoners and a guard led the defendants, Southworth and Laurie, to impose an indefinite lock-up in the maximum security section. Brule, who was then associate director/deputy warden in the maximum security section of ACI, and Costa, a guard captain in maximum security, made public statements criticizing the lock-up. Brule and Costa also testified before a state senate committee and a gubernatorial commission concerning the events leading up to the lock-up. In September, inmates of the maximum security section brought an action in the district court challenging the lock-up on eighth amendment grounds. This suit was eventually successful. See Jefferson v. Southworth, 447 F.Supp. 179 (D.R.I.1978), Appeal dismissed, No. 78-1113 (1st Cir. June 7, 1978). Plaintiffs were subpoenaed by the inmates and again testified in a manner critical of defendants' lock-up policy.

Brule testified on November 14. The next day, Southworth testified and, in addition to defending his own policies, stated that he was seeking to discharge Brule. Later on the same day, November 15, Brule and Costa were present at the maximum security section where they were the senior officers in authority. An inmate named Alfred Bishop, who had attended that day's session of the trial, sought permission from Costa to visit an inmate in another part of the prison to discuss the inmates' trial strategy. Bishop presented a note which had been initialed by the special master appointed by the district court to oversee implementation of the Palmigiano order. Costa acceded to Bishop's request. Later, Bishop asked Brule and Costa for permission to circulate a petition among the inmates, addressed to the district court and calling for retention of Brule in his post as deputy warden. Brule authorized Bishop to proceed and Costa arranged for him to be monitored by guards in the various wings. Later, Costa also granted permission for another inmate, Ralph Cross, to leave his cell to assist Bishop. During the evening, assistant director Laurie entered the prison briefly and observed Bishop out of his cell. Laurie ordered reports on the occurrence from several guards and requested, through an intermediary, that Costa also file a report on it. No attempt was made to elicit from Brule his version of the incident.

The following morning, November 16, Laurie informed Brule that he was suspended with pay pending an administrative hearing. Southworth approached Costa at the federal courthouse, where Costa was preparing to testify, and asked him several questions about the incident of the night before. Southworth then relieved Costa of his duties, placing him on administrative leave with pay. Brule and Costa subsequently received letters informing them that a hearing was scheduled for November 23 on the charge that they granted "special privileges" to an inmate by allowing him to roam the prison unattended. ¹

On November 22, Brule and Costa sought leave to intervene in the pending inmate action against Southworth and Laurie, asserting claims under 42 U.S.C. §§ 1983 and 1985(2). The district court permitted intervention and granted plaintiffs' motion for a temporary restraining order restoring plaintiffs to their jobs and barring defendants from holding a hearing. ² A judicial hearing was set for December 27, and at the hearing it was agreed that the "whole case" would be heard on the merits at that time. The trial that ensued consumed five court days and ended January 5, 1978. The district court issued its opinion on March 2, 1979. Following a stipulation by the parties, ³ final judgment was entered on June 1, 1979. This appeal followed.

I.

Defendants' first argument purportedly goes to the jurisdiction of the district court, and has a double aspect. They assert on appeal, for the first time, that the district court did not have subject matter jurisdiction to hear the case because the dispute between the parties had not ripened sufficiently to constitute a "case or controversy." U.S.Const. art. III, § 2, cl. 1. This is so, they say, because the "harm" which had befallen the plaintiffs when the court acted suspension with pay was not serious or permanent enough to be a violation of a constitutional right under 42 U.S.C. § 1983. Any harm which might later have taken place after the scheduled administrative hearing such as demotion or discharge was purely speculative, defendants contend.

While the above argument is presented as jurisdictional, it is plain that its underpinnings rest on the contention that plaintiffs failed to state a claim on which relief could be granted, See Fed.R.Civ.P. 12(b)(6); and we think it fatal that defendants never asserted any such ground in the district court, either before or during trial. ⁴ Having neglected to assert the defense of failure to state a claim below, defendants have waived their right to assert it now. Fed.R.Civ.P. 12(h)(2); Black, Sivalls & Bryson, Inc. v. Shondell, 174 F.2d 587, 590-91 (8th Cir. 1949); 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1392 at 862. Defendants now wish to breathe new life into their waived defense of failure to state a claim by presenting it as a challenge to the court's subject matter jurisdiction the latter being an issue which, of course, neither the parties nor the court could waive. We see no merit in this approach.

The Supreme Court has taken pains to preserve the distinction between lack of subject matter jurisdiction and the failure to state a claim upon which relief can be granted. See, e. g., Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 278-79, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 90 L.Ed. 939 (1946). As the Court stated in Bell v. Hood :

"Jurisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy."

327 U.S. at 682, 66 S.Ct. at 776. The Court did note two exceptions to this principle, namely that a suit may be dismissed for want of jurisdiction where the alleged claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Id. at 682-83, 66 S.Ct. at 776.

Appellants can only hope to prevail, therefore, if they can establish that plaintiffs' claim was immaterial or frivolous at the time the district court asserted its jurisdiction. Plaintiffs' complaint alleged that the defendants took disciplinary action against Brule and Costa by suspending them with pay and that such action was taken to punish plaintiffs for their critical statements concerning the lock-up policy. The disciplinary actions were allegedly taken in reprisal for Brule's testimony of November 14 and to deter Costa from testifying on November 16 in the ongoing federal court trial. Plaintiffs presented testimony below that defendants had a range of disciplinary options available to them at the time they acted against Brule and Costa, and that they had taken the most serious action that was permissible prior to the convening of a hearing, an action that previously had been used only against employees charged with criminal misconduct. Defendant Southworth admitted that he made public his decision to discipline Brule and Costa by placing them on administrative leave. It was admitted that such an action was considered adverse employment action and that it carried with it a suggestion of possible wrongdoing.

We need not decide whether such a retaliatory action pending a prompt administrative hearing would ordinarily state a cause of action under 42 U.S.C. § 1983 and the first amendment. Compare Ventetuolo v. Burke, 596 F.2d 476, 479 & n. 6 (1st Cir. 1979). We hold only that plaintiffs' claim that the actions which had already been taken against them violated their constitutional...