Stevens v. Gay, s. 85-8594
| Decision Date | 27 June 1986 |
| Docket Number | Nos. 85-8594,85-8678,s. 85-8594 |
| Citation | 792 F.2d 1000 |
| Parties | James Russell STEVENS, Plaintiff-Appellant, v. Opal GAY, Larry Hightower and Jerry Thomas, Defendants-Appellees. James Russell STEVENS, Plaintiff-Appellee, v. Opal GAY, Larry Hightower and Jerry Thomas, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
John C. Jones, Asst. Atty. Gen., Atlanta, Ga., for Gay et al.
Appeals from the United States District Court for the Southern District of Georgia.
Before KRAVITCH and HATCHETT, Circuit Judges, and TUTTLE, Senior Circuit Judge.
BACKGROUND
This is a Sec. 1983 action brought by James Russell Stevens, an inmate serving a life sentence at the Georgia State Prison. When this controversy arose, the prison had a policy of allowing indigent inmates to send three letters per week at the expense of the prison, so long as the letters were addressed to members of the inmate's immediate family.
On July 14, 1981, Stevens sent a letter addressed as follows:
(Sister) Thats (sic) Immediate Family
In the upper right hand corner he placed the letters N.F. (no funds) which was a reference to the mail policy described above.
When the letter arrived at the prison mailroom, it was handled by mail clerk Opal Gay. There was evidence at trial that the mailroom at that time was receiving a significant number of requests for postage free mail. Apparently to prevent abuse of this mail privilege, Ms. Gay telephoned correction officer Pansey Griner at the front gate to determine whether Linda Green was listed on plaintiff's mailing or visiting list. Griner erroneously informed Gay that Stevens had no such list on file, as was required. In fact, he had the required list and Linda Green is his sister.
Upon instructions from her supervisor, Larry Hightower, Ms. Gay opened the letter and read it to determine if it sounded like a "sisterly type" letter. It was hardly a letter of the kind one would write to a sister; it contained explicit sexual suggestions and profane language. Based on the content of the letter, Ms. Gay concluded that Linda Green was not Stevens' sister. She therefore initiated a disciplinary charge against him for abuse of mail privilege.
On July 16, 1981, Stevens wrote a second letter to Linda Green and submitted it without postage. Ms. Gay opened the letter, since she believed that Linda Green was not plaintiff's sister.
On February 1, 1982, in order to vindicate his First Amendment rights, Stevens filed a pro se action in forma pauperis against Correction Officers Opal Gay and Larry Hightower in their individual capacities.
On December 15, 1982, United States Magistrate Dunsmore conducted an evidentiary hearing to determine whether plaintiff's complaint was meritorious. The magistrate issued a report on January 25, 1983 in which he concluded that plaintiff's claim clearly is founded upon the abridgement of his First Amendment rights. The magistrate further noted that in light of Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), plaintiff likely would prevail on a motion for summary judgment at trial if he filed one.
In April 1984, the trial court issued an order requiring the parties to file a pre-trial order on July 20, 1984. On May 18, 1984, Georgia Legal Services lawyer Ozell Hudson, Jr. entered his formal appearance on On October 1, plaintiff filed a motion to amend his complaint to add as defendants the Department of Offender Rehabilitation and the Board of Offender Rehabilitation. 2 He also sought to amend his complaint to sue Gay and Hightower in their official capacities and to add claims for declaratory and injunctive relief. In addition, plaintiff moved for summary judgment.
behalf of plaintiff. 1 Upon motions of plaintiff, the date for filing the pretrial order was first extended to August 20, 1984, then to September 20, 1984, and finally to October 1, 1984
The trial court denied plaintiff's motion to amend on the grounds of undue delay and also denied plaintiff's motion for summary judgment.
On November 1, 1984, plaintiff filed a pro se motion for extension of time to amend the pretrial order. On November 12, plaintiff's counsel moved for and received permission to withdraw. Counsel's motion was based on his representation that Stevens insisted on his including a claim that counsel could not agree with.
On January 4, 1985, the court granted plaintiff additional time to secure representation. Present counsel, John P. Batson, entered his notice of appearance on January 8.
At trial, the court instructed the jury that plaintiff's rights had been violated but left to them the determination whether qualified, good faith, immunity barred recovery. The court denied plaintiff's motion to strike the qualified immunity defense. The jury found in favor of Stevens but held Gay and Hightower not liable because they in good faith relied on Department regulations. 3
Plaintiff subsequently filed a motion for new trial and for judgment notwithstanding the verdict. He also filed a motion for attorney's fees and costs. The court granted only the latter motion, but awarded attorney's fees and costs against the State of Georgia, even though the defendants were sued only in their individual capacities, after it concluded that the defendants' prevailing on their good faith defense prevented their being ordered to pay attorney's fees and expenses. Based upon the agreement of the parties as to the amount, the court entered an order setting the amount of attorney's fees and expenses to date at $1,500.
(1) Whether attorney's fees can be awarded under Sec. 1988 against an individual who successfully asserts a good faith, qualified immunity defense to a Sec. 1983 claim.
(2) Whether attorney's fees can be awarded against the State of Georgia when state officials are sued solely in their individual capacities.
(3) Whether the trial court abused its discretion in denying plaintiff's motion to amend his complaint to add as parties the Department of Offender Rehabilitation and the Board of Offender Rehabilitation.
(4) Whether the trial court erred in denying plaintiff's motion for a new trial.
(5) Whether the trial court erred in refusing to strike defendant Gay's assertion of a good faith, qualified immunity defense.
(6) Whether the trial court's instruction on the qualified immunity defense constitutes reversible error.
The trial court cited Familias Unidas v. Briscoe, 619 F.2d 391, 406 (5th Cir.1980), and Clanton v. Orleans Parish School Board, 649 F.2d 1084, 1103 (5th Cir.1981), as barring attorney's fees against the individual defendants, since the jury found they were entitled to a good faith immunity.
Familias Unidas states:
[t]hough all the defendants were sued in their individual capacities, as well, the same qualified "good faith" immunity that insulated them from personal liability for damages also forecloses their personal liability for plaintiff's attorney's fees.
The trial court ruled correctly on this issue.
In plaintiff's main brief he admits "... that the eleventh amendment precludes the award of damages or attorney's fees against the State of Georgia." In his reply brief, however, he retracts this statement. In any event, Kentucky v. Graham, --- U.S. ----, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), is directly on point and expressly holds that a governmental entity is not liable for attorney's fees when governmental employees are sued solely in their personal capacities. Appellant thus fails on this contention.
Plaintiff attacks the trial court's denial of his motion on the ground that the trial court did not comply with Lonestar Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69, 75 (5th Cir.1961), in that it failed to consider what effect the denial of the motion would have on the movant. Lonestar expressed the importance of the potential prejudice to both the defendant and the movant in the trial court's making its decision whether to allow an amendment. Speaking of the possible prejudice to the defendant and to the court, the Court said: Lonestar, supra, at 75. 4
It is clear, therefore, that this Court, following this decision was required to consider the potential injury to a plaintiff if denied the right to amend.
Defendants here respond to plaintiff's argument by claiming that Lonestar was effectively overruled in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). They quote from this case:
In the absence of any apparent or declared reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought, as the rules require, shall be "freely given."
This argument is a complete non sequitur. To say that unless one of several things occurred, the privilege of amending shall be "liberally granted" does not mean that if none of such things occurred, amendment should not be "liberally granted." This is especially true in looking at the language of the court's opinion in Foman, for in addition to the several stated bases which would particularly call into play the liberal requirement of allowing an amendment, there is added "etc." We have no doubt that the reasoning of the court in Lonestar--the effect of the denial of a motion to amend because of the irreparable injury of such action on the plaintiff--might well have been included by the Supreme Court in its list of "reasons" under...
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