Foster v. City of Lake Jackson

• Decision Date: 27 July 1994
• Docket Number: No. 93-7196,93-7196
• Citation: 28 F.3d 425
• Parties: Larry Wayne FOSTER, et al., Plaintiffs-Appellees, v. CITY OF LAKE JACKSON, et al., Defendants, A.A. McClain, etc., William Yenne, etc., P.C. Miller, etc., Matthew Houston, etc., and John Dewey, etc., Defendants/Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 425

28 F.3d 425

63 USLW 2104

Larry Wayne FOSTER, et al., Plaintiffs-Appellees, v. CITY OF LAKE JACKSON, et al., Defendants,

A.A. McClain, etc., William Yenne, etc., P.C. Miller, etc.,

Matthew Houston, etc., and John Dewey, etc.,

Defendants/Appellants.

No. 93-7196.

United States Court of Appeals, Fifth Circuit.

July 27, 1994.

Rehearing Denied Sept. 7, 1994.

Barry Abrams, Ramon G. Viada, III, Abrams, Scott & Bickley, Houston, TX, for appellants.

Jerry D. Patchen, Houston, TX, Matt Rubin, Gerald M. Birnberg, Houston, TX, for appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before WISDOM and BARKSDALE, Circuit Judges, and HARMON, District Judge. ¹

RHESA HAWKINS BARKSDALE, Circuit Judge:

The dispositive issue for this appeal is qualified immunity against a claim of denial of access to the courts by concealing and suppressing evidence during discovery. And, for purposes of this appeal, that issue centers on whether the claimed constitutional right was clearly established at the time of its alleged violation. Claiming qualified immunity, among other things, officials of the City of Lake Jackson, Texas, press this interlocutory appeal from the denial of their motion to dismiss. We REVERSE.

I.

Larry and Pamela Foster sued the City in state court in 1985, claiming that their son's death in an automobile accident was caused by the City's failure to maintain a traffic light. After discovery, the Fosters and the City reached a settlement, and the claims against the City were dismissed. ²

The Fosters later filed this Sec. 1983 action against the City and several of its officials. ³ They alleged that, in the state suit, the defendants conspired to deny them access to the courts by concealing and suppressing evidence during discovery, causing them to settle for less than they might have had they obtained the evidence in question. ⁴

The city officials moved, inter alia, to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6). They asserted that the Fosters failed to state a violation of a constitutional right, and that, in any event, the action was barred by absolute witness immunity and qualified immunity. The district court held that a claim had been stated, and ruled, inter alia, against the absolute witness immunity defense, Foster v. City of Lake Jackson, 813 F.Supp. 1262, 1263 (S.D.Tex.1993); later, against qualified immunity. ⁵ 5] The separate appeals from those orders have been consolidated. ⁶

II.

Our qualified immunity holding moots the other issues. When the issue is purely one of law, denial of such immunity is appealable immediately under 28 U.S.C. Sec. 1291, notwithstanding the absence of a final judgment, because "immunity" in this sense "means immunity from suit, not simply immunity from liability." Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 618 & n. 3 (5th Cir.1992) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Geter v. Fortenberry, 849 F.2d 1550, 1552 (5th Cir.1988)); see also Siegert v. Gilley, 500 U.S. 226, 231-33, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). But, where there are fact issues, the denial is not appealable immediately. E.g., Lampkin v. City of Nacogdoches, 7 F.3d 430, 436 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1400, 128 L.Ed.2d 73 (1994). Here, no facts are disputed; because we review the denial of a Rule 12(b)(6) motion, we take as true the well pleaded allegations in the complaint. E.g., Jackson v. City of Beaumont, 958 F.2d at 618; Collins v. City of Harker Heights, 916 F.2d 284, 286 & n. 2 (5th Cir.1990), aff'd, --- U.S. ----, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). We review the denial de novo. Jackson v. City of Beaumont, 958 F.2d at 618.

At bottom, qualified immunity "reconcile[s] two competing interests. One interest is the compensation of persons whose federally protected rights have been violated. Opposing this is the fear that personal liability will inhibit public officials in the discharge of their duties." Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir.1994); accord, Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993). In balancing these interests, it is inevitable that some improper actions are shielded.

Abrogation of qualified immunity is properly the exception, not the rule. See McGregor v. Louisiana State Univ. Bd. of Supervisors, 3 F.3d 850, 862 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1103, 127 L.Ed.2d 415 (1994). The burden of negating the defense lies with the plaintiffs. Chrissy F. by Medley v. Mississippi Dep't of Public Welfare, 925 F.2d 844, 851 (5th Cir.1991) (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815); appeal after remand, 995 F.2d 595 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1336, 127 L.Ed.2d 684 (1994); see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

In assessing a claim of qualified immunity, we engage in a bifurcated analysis. First, we determine whether the plaintiff has allege[d] the violation of a clearly established constitutional right. If so, we then decide if the defendant's conduct was objectively reasonable....

Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993) (citations and internal quotation marks omitted; brackets in original). Accordingly, " '[u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.' " Chrissy F., 925 F.2d at 848 (quoting Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815) (citations omitted).

Therefore, our first task is to "review the specific parts of the complaint to determine whether [plaintiffs] charge conduct violating clearly established federal rights". Id. at 851 & n. 33 (citing Stem v. Ahearn, 908 F.2d 1, 5-6 (5th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991)); accord, Lampkin, 7 F.3d at 434; Enlow v. Tishomingo County, 962 F.2d 501, 508 (5th Cir.1992). A right is "clearly established" only when its contours are sufficiently clear that a reasonable official would have realized that his conduct violated that right, not simply that the conduct was otherwise improper. See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454-55 (5th Cir.1994) (en banc ) (citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)); Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir.1993); Click v. Copeland, 970 F.2d 106, 109 (5th Cir.1992).

An official's conduct is not protected by qualified immunity if, in light of preexisting law, it was apparent that the conduct, when undertaken, constituted a violation of the right at issue. This is true even if the "very action in question" had not then been held to be a constitutional violation. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; Spann v. Rainey, 987 F.2d at 1114-15 (reasonableness of official conduct judged in light of law existing at time of violation). "Put another way, officials must observe 'general, well-developed legal principles.' " Doe v. Taylor ISD, 15 F.3d at 455 (quoting Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303, 305 (5th Cir.1987)).

The constitutional right in issue is access to the courts. The Fosters contend that this right protects against the discovery abuses claimed here, because otherwise, litigants' access to the courts is not "adequate, effective and meaningful". The city officials counter that the right does not encompass a right to proceed free of discovery abuses by a governmental entity involved in a civil lawsuit in state court, but protects only the right to institute the action. In addition, they assert that, even if a more broadly-based right exists now, it was not clearly established in 1985-88, the time of the alleged conduct. See note 2, supra. We agree with this latter contention.

The right of access, in its "most obvious and formal manifestation ... protects one's physical access" to the courts. Crowder v. Sinyard, 884 F.2d 804, 811 (5th Cir.1989), cert. denied, 496 U.S. 924, 110 S.Ct. 2617, 110 L.Ed.2d 638 (1990). In this manifestation, our court has found the right to be implicated where, for example, prisoners are denied the right to file a lawsuit, or are denied access to legal materials, or when prison officials fail to forward legal documents. Id. at 811-12; Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir.1993) (collecting cases), cert. denied, --- U.S. ----, 114 S.Ct. 1081, 127 L.Ed.2d 397 (1994). Similarly, the right may be violated if an indigent litigant is denied a refund or waiver of filing fees. See Johnson v. Atkins, 999 F.2d 99 (5th Cir.1993).

Here, however, the claimed violation is not an impediment to the ability to file suit. Instead, as framed by the district court, plaintiffs allege that

public officials "wrongfully and intentionally conceal[ed] information crucial to a person's ability to obtain redress though the courts, and d[id] so for the purpose of frustrating that right, and that concealment and the delay engendered by it substantially reduce[d] the likelihood of one's obtaining the relief to which one [wa]s otherwise entitled...."

Foster, 813 F.Supp. at 1263 (quoting Crowder, 884 F.2d at 812) (district court's brackets). As noted, plaintiffs contend that defendants' actions have violated their right of " 'adequate, effective, and meaningful' " access. Crowder, 884 F.2d at 811, quoting Ryland v. Shapiro, 708 F.2d 967, 972 (5th Cir.1983).

Crowder--which involved a challenge to defendants' taking plaintiffs' property outside the jurisdiction in an in rem action--did not involve a "cover-up" by officials. Instead, like the prisoners' rights cases on which it relied, it involved conduct by an official that effectively could have prevented plaintiffs from instituting their action. That is, the Crowders alleged that by removing their property from Texas, the defendants "destroyed or impaired the...