Dorman v. Higgins

• Decision Date: 09 June 1987
• Docket Number: No. 912,912
• Citation: 821 F.2d 133
• Parties: Frank S. DORMAN, Plaintiff-Appellant, v. Michael HIGGINS, Defendant-Appellee. Docket 85-2326.
• Court: U.S. Court of Appeals — Second Circuit

Page 133

821 F.2d 133

Frank S. DORMAN, Plaintiff-Appellant, v. Michael HIGGINS, Defendant-Appellee.

No. 912. Docket 85-2326.

United States Court of Appeals, Second Circuit.

Argued March 17, 1987.

Decided June 9, 1987.

Sanford P. Dumain, New York City (Milberg Weiss Bershad Specthrie & Lerach, New York City, on brief), for plaintiff-appellant.

Paula A. Sweeney, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., New York City, Steven E. Obus, Asst. U.S. Atty., New York City, on

brief), for the U.S. of America as amicus-curiae on behalf of defendant-appellee.

Before KEARSE, MINER, and MAHONEY, Circuit Judges.

KEARSE, Circuit Judge.

Plaintiff Frank S. Dorman appeals from a judgment of the United States District Court for the Southern District of New York, Constance Baker Motley, Chief Judge, now Judge, dismissing his pro se complaint, construed as having been brought under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), seeking damages and injunctive relief against defendant Michael Higgins, a United States probation officer, for the preparation of an allegedly false presentence report on Dorman. The court dismissed the complaint on the ground that Higgins was entitled to absolute immunity in connection with the preparation of presentence reports. On appeal, Dorman contends principally that Higgins was entitled at most to a qualified immunity, and that, in any event, immunity principles did not bar injunctive relief. Finding no error in the dismissal, we affirm.

I. BACKGROUND

In September 1983, Dorman was convicted on one count of mail fraud after a jury trial before the late Henry F. Werker, Judge, and was sentenced to five years' imprisonment and a $1,000 fine. On appeal from the judgment of conviction, Dorman's counsel moved pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), to be relieved as appointed counsel on the ground that the record disclosed no nonfrivolous issues for appeal. Dorman submitted a pro se brief which argued, inter alia, that he had been prejudiced in sentencing by statements in his presentence report that were false. We rejected this contention, stating that it was "completely undermined by Judge Werker's explicit reliance on only Dorman's criminal record and the instant offense as the basis for the sentence imposed." United States v. Dorman, No. 83-1369 (Unpub.1984) [742 F.2d 1442 (table) ]. Concluding that none of Dorman's claims had even colorable merit, we granted counsel's Anders motion and affirmed the judgment.

While that appeal was pending, Dorman commenced the present action pro se, seeking civil redress for the allegedly false presentence report. The complaint alleged that the false statements that appeared in the report were the result of a conspiracy between Higgins and the prosecuting attorney and of Higgins's failure to make an adequate investigation of the relevant facts. Dorman alleged that the harshness of his criminal sentence was caused by these false statements, and he requested $70,000 in damages and an injunction against any further use of the report. Chief Judge Motley dismissed the complaint sua sponte and without requiring service on Higgins, ruling that a probation officer preparing presentence reports is performing a quasi-judicial function and is therefore entitled to absolute immunity from suit for damages for their improper preparation.

This appeal followed.

II. DISCUSSION

On appeal Dorman contends principally that Higgins was not entitled to more than qualified immunity and that neither qualified nor absolute immunity would bar Dorman's request for injunctive relief. For the reasons below, we conclude that the complaint was properly dismissed because principles of collateral estoppel bar at least part of Dorman's claim for damages, Higgins has absolute immunity from the entire claim for damages, and the complaint did not indicate that Dorman was entitled to any injunctive relief.

A. Collateral Estoppel

The complaint alleges that Dorman was injured by the allegedly false statements in the presentence report because he received a more severe sentence than would have been imposed had the report been accurate. This claim, however, is barred by principles of collateral estoppel since this Court ruled, in affirming Dorman's It is not clear, however, that collateral estoppel bars Dorman's entire claim for damages, since, reading the complaint reasonably broadly, see Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1987), especially in light of its request for an injunction against further use of the presentence report, Dorman might well have attempted to prove that the report was put to some additional use that caused him injury. See, e.g., United States v. Charmer Industries, 711 F.2d 1164, 1170 (2d Cir.1983) ("Charmer ") (though presentence report is used primarily for sentencing, it may also be used by, e.g., parole officials in making decisions as to whether defendant should be released from prison early). Since our affirmance of Dorman's conviction did not involve these other potential uses of the presentence report, Dorman is not collaterally estopped from showing that the allegedly false statements in the report injured him in ways other than causing an increase in the severity of his sentence.

                conviction and rejecting his sentencing claim, that the district court did not in fact rely on the presentence report as a basis for the sentence imposed.   See United States v. Podell, 572 F.2d 31, 35 (2d Cir.1978) (fact put in issue and determined against defendant in criminal proceeding cannot be relitigated by him in subsequent suit);  Gelb v. Royal Globe Insurance Company, 798 F.2d 38, 43 (2d Cir.1986) (party other than government may assert collateral estoppel against convicted defendant with respect to fact necessarily determined in criminal proceeding), cert. denied, --- U.S. ----, 107 S.Ct. 1608, 94 L.Ed.2d 794 (1987)
                

Accordingly, we turn to the question of whether the damage claim was barred by Higgins's entitlement to absolute immunity.

B. Absolute Immunity for Federal Probation Officers

The entitlement of a government official to absolute immunity, protecting him from liability, from suit, and from any scrutiny of the motive for and reasonableness of his official actions, depends on the function he performs. Absolute immunity is rarely granted; qualified immunity is the norm. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). Functions most apt to be accorded absolute, rather than qualified, immunity are those integrally related to the judicial process. Two types of factors inform such a decision: the need for absolute immunity in order to permit the effective performance of the function, and the existence of safeguards against improper performance.

Many functions intimately connected with the judicial process are characterized by a high degree of discretion in the decisions to be made, e.g., whom to prosecute, what evidence to present, what penalties to seek, what rulings to make on disputed issues, and what sanctions to impose. In such an adversary environment, emotions are likely to run high, and the party against whom any of these decisions is made is likely to feel aggrieved; further litigation would often ensue, if allowed. See Butz v. Economou, 438 U.S. 478, 512, 98 S.Ct. 2894, 2913, 57 L.Ed.2d 895 (1978); Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1217, 18 L.Ed.2d 288 (1967). Absolute immunity in the performance of these functions is needed in order that the official not, out of fear of exposure to a civil suit for damages, be intimidated in the exercise of his discretion and the proper performance of his duties. See, e.g., id.; Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 1097, 89 L.Ed.2d 271 (1986).

The safeguards surrounding the performance of functions closely connected with the judicial process minimize the risks that unreasonable official action will occur or, if it occurs, go uncorrected. These safeguards include the apolitical nature of judicial decisions, the role of precedent in shaping judicial decisions, the adversary nature of the process, which increases the likelihood that any significant defect will be noted and called to the impartial decisionmaker's attention, and the regularized In light of these considerations, judges performing judicial functions within their jurisdictions are granted absolute immunity. See, e.g., Pierson v. Ray, 386 U.S. at 553-55, 87 S.Ct. at 1217-18. In addition, some officials who are not judges but who "perform functions closely associated with the judicial process," Cleavinger v. Saxner, 106 S.Ct. at 500-01, have also been accorded such immunity. These include hearing examiners employed by administrative agencies, see Butz v. Economou, 438 U.S. at 513-17, 98 S.Ct. at 2914-16, attorneys in the course of activities "intimately associated with the judicial phase of the judicial process," e.g., Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976), and witnesses who testify in judicial proceedings, see Briscoe v. LaHue, 460 U.S. 325, 330-34, 103 S.Ct. 1108, 1112-13, 75 L.Ed.2d 96 (1983).

                availability of review in another forum.   See, e.g., Butz v. Economou, 438 U.S. at 512, 98 S.Ct. at 2913;  Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 501, 88 L.Ed.2d 507 (1985)
                

We conclude that federal probation officers preparing and furnishing presentence reports to the court should be added to this list. Federal probation officers are appointed by the district court, 18 U.S.C. Sec. 3654 (1982) (repealed effective Nov. 1, 1987, Pub.L. 98-473, tit. II, Secs. 212(a)(2), 235(a)(1), 98 Stat. 1987, 2031 (1984), as amended, and reenacted in part as 18 U.S.C. Sec. 3602 effective Nov. 1, 1987, by the same leg...