Griess v. State of Colo.

• Decision Date: 15 March 1988
• Docket Number: 86-1174,Nos. 86-1123,s. 86-1123
• Citation: 841 F.2d 1042
• Parties: Dale GRIESS, Plaintiff-Appellant and Cross-Appellee, v. The STATE OF COLORADO; The Colorado Department of Corrections; Chase Riveland, as Director of the Colorado Department of Corrections; Mark McGoff, as Superintendent of Fremont Correctional Facility; James Brittain, Superintendent of the Territorial Correctional Facility; James G. Ricketts, as the former director of the Colorado Department of Corrections; Gene Tollis; Edward Buckingham; John Perko; and Lena Dice, Defendants-Appellees and Cross- Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1042

841 F.2d 1042

Dale GRIESS, Plaintiff-Appellant and Cross-Appellee, v. The STATE OF COLORADO; The Colorado Department of

Corrections; Chase Riveland, as Director of the Colorado

Department of Corrections; Mark McGoff, as Superintendent

of Fremont Correctional Facility; James Brittain,

Superintendent of the Territorial Correctional Facility;

James G. Ricketts, as the former director of the Colorado

Department of Corrections; Gene Tollis; Edward Buckingham;

John Perko; and Lena Dice, Defendants-Appellees and Cross-

Appellants.

Nos. 86-1123, 86-1174.

United States Court of Appeals, Tenth Circuit.

March 15, 1988.

James D. Evans, Denver, Colo., for plaintiff-appellant and cross-appellee.

Alan Epstein, Hall and Evans, Denver, Colo., and Marleen Langfield, Office of the Atty. Gen., Denver, Colo., for defendants-appellees and cross-appellants.

Before LOGAN, SEYMOUR, and ANDERSON, Circuit Judges.

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of these appeals. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.8(c) and 27.1.2. The causes are therefore ordered submitted without oral argument.

This matter is before the court on appeal and cross appeal from an order of the United States District Court for the District of Colorado dismissing a prisoner civil rights action asserting claims under 42 U.S.C. Secs. 1981 and 1983, as well as two pendent state law claims. See Griess v. Colorado, 624 F.Supp. 450 (D.Colo.1985). Plaintiff appeals from the district court's decision to grant defendants' motion for summary judgment on absolute immunity grounds; defendants seek review of the court's underlying determination that a constitutional violation had been established.

The factual background of this case is recited in sufficient detail in the district court's opinion, id. at 451-52, and need only be summarized here. Plaintiff, an inmate of the Colorado Department of Corrections in 1981-1983, alleges that defendants deprived him of his equal protection and due process rights under the Fifth and Fourteenth Amendments by failing to include the time he served prior to sentencing in the computation of "good time" under Colo.Rev.Stat. Sec. 17-22.5-101 (1973) (1980 Supp.) (superseded by Colo.Rev.Stat. Sec. 17-22.5-101 (1986 Supp.)). The inclusion of presentence confinement in the calculation of good time under the statute was established in People v. Chavez, 659 P.2d 1381, 1383-84 (Colo.1983), which controls in plaintiff's case by virtue of the Colorado Supreme Court's express direction for retroactive application of its decision. Id. at 1384. The parties have stipulated that, had plaintiff's good time been properly determined in accordance with Chavez, plaintiff's latest discharge date would have been January 28, 1983, more than two months prior to his actual release on March 31, 1983. See Griess, 624 F.Supp. at 452 & n. 4. Plaintiff seeks damages incurred as a result of his excessive and illegal incarceration.

State Defendants' Eleventh Amendment Immunity

The district court held the defendant State of Colorado and its department of corrections immune from liability under the Eleventh Amendment. See generally Meade v. Grubbs, 841 F.2d 1512, 1525, (10th Cir. 1988) (the immunity conferred by the Eleventh Amendment extends to the state and its instrumentalities). Plaintiff attempts to avoid the otherwise undeniable application of such immunity by arguing that Colorado has consented to suit in the present context. See Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057-58, 57 L.Ed.2d 1114 (1978) (a federal suit against the state and its board of corrections is barred by the Eleventh Amendment, unless the state has consented to the filing of such a suit). Specifically, plaintiff contends that the Colorado Governmental Immunity Act (GIA), Colo.Rev.Stat. Sec. 24-10-101, et seq., which waives the state statutory defense of sovereign immunity in certain circumstances, manifests the state's assent to the maintenance of the present suit.

As the district court correctly pointed out, a state's waiver of sovereign immunity in its own courts does not constitute abandonment of its Eleventh Amendment immunity in the federal courts. See Edelman v. Jordan, 415 U.S. 651, 677 n. 19, 94 S.Ct. 1347, 1363 n. 19, 39 L.Ed.2d 662 (1974). Indeed, even a general waiver of sovereign immunity, apparently indeterminate in its scope or locus of effect, would be insufficient in this respect. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985). The Supreme Court has thus imposed a very stringent test for determining the relinquishment of Eleventh Amendment protection: "[I]n order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State's intention to subject itself to suit in federal court.... In the absence of an unequivocal waiver specifically applicable to federal-court jurisdiction, we decline to find that [the State] has waived its constitutional immunity." Id. at 241, 105 S.Ct. at 3147 (emphasis in original).

Applying the above principles to the present case, we agree with the district court's conclusion that the GIA, particularly Colo.Rev.Stat. Secs. 24-10-104 and 106, does not effect a waiver of the state's constitutional immunity to suit in federal court. Nothing in the GIA indicates "by the most express language or by such overwhelming implication from the text," Atascadero, 473 U.S. at 239-40, 105 S.Ct. at 3146, that the legislature was concerned with anything other than the tort liability of the state enforceable in its own courts. See, e.g., Colo.Rev.Stat. Secs. 24-10-103(2), 105, 106(1). A provision recently added to the GIA to explain its effect on claims asserted under federal law is certainly germane, though not controlling, and it clearly bears out this construction of the legislature's intent: "The provisions of this article shall apply to any action against a public entity or a public employee in any court of this state having jurisdiction over any claim brought pursuant to any federal law, if such action lies in tort or could lie in tort...." Colo.Rev.Stat. Sec. 24-10-119 (emphasis added). Accordingly, we affirm the district court's dismissal of plaintiff's claims against the state and its department of corrections on Eleventh Amendment immunity grounds.

Individual Defendants' Eleventh Amendment Immunity

While we agree with the district court regarding the state defendants' immunity from suit under the Eleventh Amendment, we decline to take the next step and apply that same immunity, derivatively, to the individually named defendants. The Supreme Court has recognized two distinct situations in which an action nominally against public officials is, in essence, an action against a governmental entity and should be treated as such for purposes of immunity analysis. The present case falls in neither of these two categories.

First, it is by now well settled that a judgment against a public servant in his official capacity imposes liability not on the particular servant in office, but on the governmental entity the office represents. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 471-73, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985); Meade v. Grubbs, 841 F.2d at 1529. Consequently, "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Graham, 473 U.S. at 166, 105 S.Ct. at 3105 (citing Brandon, 469 U.S. at 471-72, 105 S.Ct. at 878). This principle cannot be invoked here, however, as plaintiff amended the complaint specifically to clarify his intention to sue the individual defendants in their personal capacities.

In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Supreme Court acknowledged another special class of cases, those in which an unnamed governmental entity is deemed to be the true defendant despite the designation of its officials as defendants in their personal capacities. The distinctive feature of this second category of cases is summarized in the following excerpt from Edelman:

It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459 [65 S.Ct. 347, 89 L.Ed. 389] (1945), the Court said:

'[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants.' Id., at 464 .

Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Great Northern Life Insurance Co. v. Read, [322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944) ]; Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 [66 S.Ct. 745, 90 L.Ed. 862] (1946).

Id. at 663, 94 S.Ct. at 1355-56.

The district court held Edelman applicable to the present case by reasoning that, under an indemnification provision included in the GIA, Colo.Rev.Stat. Sec. 24-10-110(1)(b)(I), the state would be obligated to reimburse the individual defendants for any recovery by plaintiff. Thus, the district court concluded, plaintiff's suit for compensatory damages is "in essence one for the recovery of money against the state," and, as such, prohibited by Edelman. Griess, 624 F.Supp. at 454. We disagree.

We need not decide whether the indemnification provision included in the GIA in fact applies to personal capacity actions brought against state officials in federal court, as the statute could not, in any event, be...