Johnson v. Kegans

The issue in this case is whether the district court erred in dismissing as frivolous pursuant to 28 U.S.C. § 1915(d) an in forma pauperis action by a state prisoner seeking damages from and injunctive relief against a county prosecutor and a state court judge under 42 U.S.C. § 1983. We hold that the judge and prosecutor are absolutely immune from liability for damages and that the allegations for injunctive relief are insufficient. We therefore affirm.

Facts and Proceedings Below

Plaintiff-appellant Daniel Johnson (Johnson) is an inmate of the Texas Department of Corrections. On February 9, 1987, he filed this pro se action pursuant to 42 U.S. C. § 1983. He named as defendants Judge Joe Kegans (Judge Kegans), Judge of the 230th Judicial District Court of Harris County, Texas, and John Holmes (Holmes), District Attorney of Harris County, Texas. Johnson claims that in the fall of 1986 Judge Kegans and Holmes each filed with the Texas Board of Pardons and Parole (the Board) a letter or instrument in which they urged or recommended the Board to deny Johnson parole. Johnson alleges that Judge Kegans and Holmes filed their letters in retaliation for civil rights suits that Johnson had prosecuted against Judge Ke-gans and other state and county officials and that Holmes further acted “with the intent of extending Plaintiffs period of incarceration ... on the basis of unadjudicat-ed offenses.” His complaint does not allege whether defendants informed the Board of those matters, nor does it otherwise allege the contents of the letters or allege that defendants made any false statements to the Board. Johnson does claim that these letters “prejudiced” him “in parole matters.” In addition to damages, he seeks an injunction ordering defendants to withdraw their letters and not to engage in “future, similar acts.”

Defendants were never served. Instead, on March 23, 1987, the district court granted Johnson leave to file his complaint in forma pauperis pursuant to 28 U.S.C. § 1915(a), but found that Johnson had no constitutional right to parole and that defendants were absolutely immune from suit, and concluded that Johnson had therefore failed to state a section 1983 claim. The court dismissed his action as frivolous under 28 U.S.C. § 1915(d). This appeal followed.

Discussion

A district court may dismiss an in forma pauperis proceeding pursuant to section 1915(d) if: “(1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law and fact; or (3) it is clear that the plaintiff can prove no set of facts in support of his claim.” Cay v. Estelle, 789 F.2d 318, 326 (5th Cir.1986). The district court may dismiss sua sponte an in forma pauperis proceeding, Cay, 789 F.2d at 323, and is vested with “especially broad discretion” when making the determination of frivolousness vel non, id. at 325; Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.1986). The district court in this case did not abuse its discretion under section 1915(d) because defendants were absolutely immune from suit and Johnson did not state a claim for injunctive relief.

1. Absolute Immunity

It is well established that judges are absolutely immune from liability for judicial acts that are not performed in clear absence of all jurisdiction, however erroneous the act and however evil the motive. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 1105-07, 55 L.Ed.2d 331 (1978); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Holloway v. Walker, 765 F.2d 517, 522-25 (5th Cir.), cert. denied, 474 U.S. 1037, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985); Adams v. McIlhany, 764 F.2d 294, 297-99 (5th Cir.1985), cert. denied, 474 U.S. 1101, 106 S.Ct. 883, 88 L.Ed.2d 918 (1986). See also Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496, 500, 88 L.Ed.2d 507 (1985). This absolute judicial immunity contrasts with the qualified immunity that executive officials generally enjoy. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Judges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities.” Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 2914, 57 L.Ed.2d 895 (1978). Officials whose responsibilities are “functionally comparable” to those of a judge are also absolutely immune from liability. Id. 98 S.Ct. at 2913-14. Thus, for example, federal hearing examiners and administrative law judges, id. at 2914, arbitrators, Corey v. New York Stock Exchange, 691 F.2d 1205, 1208-11 (6th Cir.1983), bar association disciplinary committee members, Slavin v. Curry, 574 F.2d 1256, 1266 (5th Cir.1978), modified on other grounds, 583 F.2d 779 (5th Cir.1978) (per curiam), rev’d sub nom. on other grounds Sparks v. Duval County Ranch Co., 604 F.2d 976 (5th Cir.1979) (en banc), the National Association of Securities Dealers, Inc. and its disciplinary officers, Austin Mun. Securities v. Nat. Ass’n of Securities, 757 F.2d 676, 689-92 (5th Cir.1985), and members of pardon and parole boards, Cruz v. Skelton, 502 F.2d 1101, 1101-02 (5th Cir.1974) (per curiam); Johnson v. Rhode Island Parole Board Members, 815 F.2d 5, 6-7 (1st Cir.1987), have been held absolutely immune from suit because they perform adjudicatory roles which are functionally substantially equivalent to those of judges. But see Cleavinger, 106 S.Ct. at 502-05 (prison disciplinary committee members have qualified, not absolute, immunity; they are not to be equated to parole board members, who are “serving essentially ‘as an arm of the sentencing judge’ ”). These officials are sometimes labeled “quasi-judicial” officials and, as most of the above examples indicate, need not be members of the judiciary.

Prosecutors and other necessary participants in the judicial process enjoy “quasi-judicial” immunity as well. Prosecutors are absolutely immune from liability for initiating prosecutions and other acts “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Morrison v. City of Baton Rouge, 761 F.2d 242, 246-48 (5th Cir.1985) (per curiam). This prosecutorial immunity extends to individuals serving prosecutorial functions at administrative hearings. See Butz, 98 S.Ct. at 2916. Cf. Tower v. Glover, 467 U.S. 914, 104 S.Ct. 2820, 2826, 81 L.Ed.2d 758 (1984) (public defenders not immune). Witnesses, including police officers, are absolutely immune from liability for their testimony in judicial proceedings, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 1113-14, 75 L.Ed.2d 96 (1983), and grand jurors, Imbler, 96 S.Ct. 991-92 & n. 20, and jurors, White v. Hegerhorst, 418 F.2d 894, 895 (5th Cir.1969), cert. denied, 398 U.S. 912, 90 S.Ct. 1710, 26 L.Ed.2d 74 (1970), are likewise absolutely immune from liability arising out of their service. See also Freeze v. Griffith, 849 F.2d 172, 174-75 (5th Cir.1988). Similarly, probation officers are immune from liability for preparing and submitting a presen-tence report. Freeze, 849 F.2d at 175; Spaulding v. Nielsen, 599 F.2d 728, 729 (5th Cir.1979) (per curiam). Accord Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir.1986).

The “cluster” of absolute immunities that protect participants in judicial and other adjudicatory proceedings exist to help guarantee an independent, disinterested decision-making process. These absolute immunities prevent the harassment and intimidation that could otherwise result if disgruntled litigants — particularly criminal defendants and inmates, both of whom have their liberty at stake — could vent their anger by suing either the person who presented the decision maker with adverse information or the person or persons who rendered an adverse decision. See Butz, 98 S.Ct. at 2913; Holloway, 765 F.2d at 522. When determining the scope of judicial immunity, the requirements of judicial acts and jurisdiction are to be broadly construed to effectuate these policies. Holloway, 765 F.2d at 523-24. A similar approach, of course, should be taken when determining whether an act by a prosecutor, juror, grand juror, or witness is integral to the judicial process and therefore protected by absolute immunity.

Turning to the acts by the judge and prosecutor here, it is not altogether clear that they were “judicial” or “prosecutorial.” Sentencing is without doubt a judicial act, see Adams, 764 F.2d at 294. And when a prosecutor or probation officer provides information relevant to sentencing or recommends a sentence, they are clearly performing prosecutorial or quasi-judicial acts. But Johnson does not complain about his sentence or the acts of defendants with regard thereto; he in essence complains of his failure to be paroled.

The power to grant parole is executive. Clifford v. Beto, 464 F.2d 1191, 1194 (5th Cir.1972). See also Hilliard, 759 F.2d at 1193 (the board is an independent agency whose members are appointed by the governor). The functioning of a parole board, however, is quasi-judicial. Cruz, 502 F.2d at 1101. See also Johnson v. Rhode Island, 815 F.2d at 6. And although this Court has not previously addressed this issue, we conclude that those individuals who function before the Board in the same capacity as a prosecutor, witness, or probation officer would enjoy absolute immunity. Yet, in the very strictest sense, defendants did not act in one of these capacities before the Board.

Nonetheless, we conclude defendants are absolutely immune. Their acts were intimately connected with both the judicial process and the quasi-judicial parole-granting process.

Judges, who impose sentences, and prosecutors, who best know the state’s case against a defendant and recommend sentences, have a continuing official interest in the execution of sentence, due, no doubt, in part to their superior knowledge of the inmate and the crime for which he was convicted. Texas recognizes this and places upon these officials “the duty” of providing to the Board any relevant information about the inmate.

“It shall be the duty of any judge, district attorney, county attorney, police officer, or other public official of the state having information with reference to any prisoner eligible for parole to send in writing such information as may be in his possession or under his control to the board, upon request of any member or employee thereof.” Tex.Code Crim.Proc. art. 42.18 § 9 (Vernon Supp.1988).

Texas requires the Board to “secure all pertinent information relating to the prisoner, including but not limited to ... any written comments or information provided by local trial officials_” Tex.Code Crim.Proc. art. 42.18 § 8(e) (Vernon Supp. 1988).

“It shall be the duty of the board at least 10 days before ordering the parole of any prisoner or upon the granting of executive clemency by the governor to notify the sheriff, the prosecuting attorney, and the district judge in the county where such person was convicted ... that such parole or clemency is being considered by the board or by the governor.” Tex. Code Crim.Proc. art. 42.18 § 8(i) (Vernon Supp.1988).

Rules of the Texas Board of Pardons and Parole § 145.8(.008) (1988). In sum, these rules recognize the continuing official role of the judge and prosecutor in the execution of sentence. Whether we label these acts judicial and prosecutorial or a quasi-judicial equivalent to a witness or probation officer, they are functionally the sort of actions that deserve the protection of absolute immunity. To the extent that judicial immunity does not apply, quasi-judicial immunity does.

We decline to allow defendants’ absolute immunity to simply disappear into some sort of theoretical gap between the judicial sentencing process and the quasi-judicial parole decision-making process. The Supreme Court has noted, with apparent approval, in connection with its discussion of lower court decisions affording absolute immunity to parole board members, that they have been described as “serving essentially ‘as an arm of the sentencing judge.’ ” Cleavinger, 106 S.Ct. at 502 (quoting Sellars v. Procunier, 641 F.2d 1295, 1302 n. 15 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981), which in turn quotes Bricker v. Michigan Parole Board, 405 F.Supp. 1340, 1345 (E.D.Mich.1975)). If parole decision making is immune because it is an extension or arm of judicial sentencing, then those whose official roles in the judicial sentencing process leads them to also participate in the parole decision-making process should enjoy no less immunity than that afforded for their participation in the judicial process. And, if a probation officer giving sentencing information to a judge is absolutely immune, then so, too, should be a parole board employee giving parole information to the board which enjoys absolute immunity because of its quasi-judicial function. To deny such immunity to the judge or prosecutor who furnishes such information to the parole board would be wholly anomalous. We hold that defendants have absolute immunity.

II. Injunction

Johnson filed a motion for preliminary injunction with his complaint. He seeks an injunction ordering defendants to withdraw any letters to the Board, and not to file any further materials that could be construed as protesting a grant of parole. Defendants are not immune from injunctive relief, Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 1974-81, 80 L.Ed.2d 565 (1984), but Johnson is not entitled to this relief based on his pleadings. Johnson argues that the letters somehow “prejudiced [him] in parole matters” and states that the Board gave boilerplate reasons for denial. He does not contend, however, that he was otherwise eligible for or would have received parole. He states his injuries “stem from the effect on decision-making, not a predictable outcome of any particular decision.” He disclaims seeking by this action to establish his entitlement to parole. It is not claimed that defendants have or purported to exercise any parole decision-making (or veto) authority. It is axiomatic that to obtain injunctive relief, Johnson must show a real danger that without the injunction he will suffer an irreparable injury. See generally 11 C. Wright & A. Miller, Federal Practice and Procedures § 2942 (1973). He has failed to allege facts so showing. Further, to the extent that Johnson might claim entitlement to injunctive relief because the letters assertedly denied him a constitutionally proper parole hearing, he must first exhaust habeas remedies. Serio, 821 F.2d at 1118. In other respects, he seeks meaningless relief. The Board is, according to Johnson, aware of the letters and their contents. Withdrawing the letters would not affect this knowledge. He does not suggest that there is any likelihood that he will be filing additional suits that would prompt defendants to file additional letters.

Conclusion

Because defendants are immune from suit and plaintiff’s allegations do not support his claim for injunctive relief, the district court’s dismissal of this action is AFFIRMED.

. Johnson does not expressly state whether defendants were or were not involved in his initial criminal trial, but given the context of his claims, it seems clear that they were.

. Because of his unique place in the constitutional scheme, the President is entitled to absolute immunity for his official acts. Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 2701-03, 73 L.Ed.2d 349 (1982). Similarly, legislative officers acting in the "sphere of legitimate legislative activity” enjoy absolute immunity. See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 1820-21, 44 L.Ed.2d 324 (1975).

. In Johnson v. Rhode Island, 815 F.2d at 6-7, the court reviewed the degree of immunity afforded parole board members in different circuits. The court joined the Fourth, Seventh, Eighth, and Ninth Circuits in granting parole board members absolute immunity from damages for acts taken in performance of their official duties and rejected the Third Circuit’s approach of granting absolute immunity only when the parole board member was engaged in adjudicatory, as opposed to administrative, duties. The court also noted but did not purport to resolve what it viewed as a split of authority in the case law in this Circuit. We address those cases here.

In Cruz, 502 F.2d at 1101-02, this Court first addressed the issue of immunity for parole board members and held that members of the Texas Board of Pardons and Paroles were absolutely immune for refusing to grant parole. We have consistently reaffirmed this decision with regard to the Texas Board, see Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir.1978); Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193-94 (5th Cir.1985) (per curiam), and have applied it in a suit against the Louisiana State Board of Pardons, Serio v. Louisiana State Board of Pardons, 821 F.2d 1112, 1114 (5th Cir.1987), which relied upon Hilliard.

However, in three cases involving the Florida Parole and Probation Commission or its employees, we have proceeded on the assumption that the relevant immunity was qualified immunity. Henzel v. Gerstein, 608 F.2d 654, 658-59 (5th Cir.1979); Williams v. Rhoden, 629 F.2d 1099, 1103 (5th Cir.1980); Fowler v. Cross, 635 F.2d 476, 479-80, 483-84 (5th Cir.1981). Neither Henzel nor Fowler even mentions absolute immunity, and it is not apparent that such immunity was ever asserted in those cases. Henzel affirms a summary judgment for the defendant on the basis of qualified immunity, noting that "[sjtate officials are protected by a qualified immunity from § 1983 damage suits upon a showing that they acted in good faith and without malice,” for which Johnson v. Wells, among other decisions, is cited. 608 F.2d at 658-59. But Johnson v. Wells states that "parole officials are immune from suit for damages under ... § 1983,” citing Cruz. And Cruz clearly applies absolute immunity, quoting with approval the Ninth Circuit’s opinion in Silver v. Dickson, 403 F.2d 642, 643 (9th Cir.1968), cert. denied, 394 U.S. 990, 89 S.Ct. 1477, 22 L.Ed.2d 765 (1969), that immunity is granted because these officials perform ‘“quasi-judicial functions.’ ” 502 F.2d at 1101. Silver, with which Cruz expresses "full agreement” (502 F.2d at 1102), also points out that this immunity is the same as that for prosecutors, 403 F.2d at 643, which is, of course, absolute. Fowler reverses a judgment for the defendants based on qualified immunity, reasoning that the constitutional right violated was clearly established at the time, but does not advert to absolute immunity. In Williams, it is infera-ble that absolute immunity was considered and rejected, although it is not expressly mentioned. Williams, citing Henzel, also states that "parole officials are entitled to immunity from Section 1983 damage suits for acts undertaken in good faith.” 629 F.2d at 1103. Williams hence repeats Henzel's misreading of Johnson v. Wells. Significantly, neither Henzel, Williams, nor Fowler even cite, much less attempt to distinguish, Cruz.

We elect to follow Cruz and its progeny. Since Cruz, there has been no decision of the Supreme Court or of this Court en banc (and no legislation) justifying a departure from its principles, and in these circumstances subsequent panel decisions inconsistent with Cruz are not precedential, since one panel of this Court may not overrule another. See Ryals v. Estelle, 661 F.2d 904, 906 (5th Cir.1981). Further, all our decisions dealing with the Texas Board apply absolute immunity. Finally, as we noted in Serio, 821 F.2d at 1114, the Supreme Court’s opinion in Cleaving-er — rendered several years after Fowler, Hen-zel, and Williams — strongly implies that absolute immunity is appropriate for pairóle board members. Cleavinger holds that prison disciplinary committee members are entitled to qualified immunity, but refuses to extend them absolute immunity (although the three dissenting justices would have granted absolute immunity). In the latter connection, the Court points out that it does not equate prison disciplinary committee members to parole board members, noting that, unlike the committee, the board is a neutral and detached hearing body serving essentially as an arm of the sentencing judge. 106 S.Ct. at 502.

. Nothing in Johnson’s allegations indicates that the Board requested information from defendants. Nonetheless, we believe that even if defendants were not acting under a clear state law requirement to provide any relevant information to the Board, they were acting in accordance with their roles in the judicial and quasi-judicial processes. And, if defendants were not exercising a "power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law,” they were not acting under color of state law and were hence not subject to liability under section 1983. Hagerty v. Succession of Clement, 749 F.2d 217, 220 (5th Cir.1984), cert. denied sub nom. Hagerty v. Keller, 474 U.S. 968, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985). See also Smith v. Winter, 782 F.2d 508, 512 (5th Cir.1986); Manax v. McNamara, 842 F.2d 808, 812-13 (5th Cir.1988).

. Johnson alleged that he was suing Judge Ke-gans and Holmes in both their individual and their official capacities. Immunity does not bar suits against defendants in their official capacities. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985). We treat Johnson’s suit as against defendants only in their individual capacities, however. He has not made the required allegation of policy or custom, id. 105 S.Ct. at 3105 (discussing Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Mairena v. Foti, 816 F.2d 1061, 1063 (5th Cir.1987), cert. denied sub nom. Connick v. Mairena, — U.S. -, 108 S.Ct. 697, 98 L.Ed.2d 649 (1988)), on the part of Judge Kegans. In any event, Judge Kegans is a state officer and is therefore protected by Eleventh Amendment immunity. Holloway, 765 F.2d at 525; Clark v. Tarrant County, 798 F.2d 736, 744-45 (5th Cir.1986). As to Holmes, who is a local government official and is not protected by the Eleventh Amendment, Crane v. State of Texas, 766 F.2d 193 (5th Cir.1985) (suit against Texas district attorney and county he served), Johnson has alleged a policy or custom but has not named as a party the county, which is the legal entity the district attorney represents. Although a judgment against the district attorney in his official capacity may impose liability on the county that he represents if the county receives notice and opportunity to respond, Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985), a suit against the county should still name the county, see Brandon, 105 S.Ct. at 879 (Burger, C.J., concurring). We note that our opinion in Mairena v. Foti, is not to the contrary. Mairena assumed that a suit against a Louisiana district attorney in his official capacity was in effect a suit against the parish, but the case was apparently tried on that theory and no failure to name the parish was asserted as a defect in the suit, nor was there any claim that the parish lacked notice. Here there is no reason to allow the unserved suit to proceed with the county unnamed and the district attorney entitled to absolute immunity. Neither Mairena nor Brandon suggest that the trial court is obliged to allow a suit to proceed where the proper party is not named.