Rethinking prisoner litigation: shifting from qualified immunity to a good faith defense in (section) 1983 prisoner lawsuits.

• Author: Miller, Stephen W.

INTRODUCTION

The vindication of constitutional and federal statutory rights is a significant source of litigation in federal courts. Section 1983 of Title 42 (1) of the United States Code provides an avenue of redress for citizens whose constitutional or federal statutory rights have been violated under color of state law. (2) Section 1983 has been used to enforce such rights, especially by plaintiffs who otherwise might not have the ability to seek effective redress. (3) Prisoners constitute one such class of plaintiffs, (4) as most of their interactions with prison officials involve action under color of state law. (5)

The current state of prisoner [section] 1983 litigation is marked by inconsistency. A prisoner whose constitutional or statutory rights have been violated by prison officials faces significant challenges to even have her grievances heard in court as new laws require that a prisoner exhaust all administrative procedures before filing her suit. (6) Assuming the prisoner meets the requirements, her suit will progress differently depending upon whom she sues. If the defendant is a state prison official, he may be allowed to assert qualified immunity, thus diminishing the prisoner's chance of successfully achieving redress. (7)

If the defendant is a privately employed guard, however, he is not allowed to assert qualified immunity, but may be able to assert some form of good faith defense. (8) Under this current regime, both prisoners and prison guards are treated unjustly.

Adding to the mix is the argument that the federal courts have been inundated with mostly frivolous prisoner lawsuits. While some allege the use of excessive force by guards, others allege the denial of their constitutional right to a certain kind of peanut butter. (9) Given the characterization of the frivolous nature of the latter and the perception that the majority of prisoner suits fit that mold, (10) prisoner suits have become a convenient target for those seeking to limit access to the federal courts under [section] 1983. When the Prison Litigation Reform Act (PLRA) of 1995 (11) was passed in 1996, (12) the prevailing thought was that prisoner litigation would be curtailed significantly. (13) Congress passed the Act in response to the increasing number of prisoner lawsuits being filed and their perceived collective frivolity. (14) An initial examination of the Act's effects seemed to indicate that it had been successful in decreasing the number of prisoner suits. (15) However, it is unclear whether this represents only a decrease in the amount of frivolous prisoner suits, or whether the decrease has also managed to keep legitimate claims out of federal court. (16)

Although [section] 1983 prisoner litigation currently suffers from several deficiencies that threaten to undermine the just result [section] 1983 seeks, this Note does not advocate for a complete overhaul of the system. Rather, it hopes to resolve one of the most glaring flaws in the current system--the varying defenses afforded to private and public prison guards. This Note proposes that courts abandon the doctrine of qualified immunity and replace it with a good faith defense in the prisoner litigation context. Such a shift would make it easier for prisoners with meritorious claims to have their cases heard. Further, it would introduce a measure of consistency and fairness with respect to prison guard defendants in [section] 1983 lawsuits. This may be palatable to those afraid of federal court inundation as the flooded courtroom concern--a concern that helped justify the use of qualified immunity-has been somewhat alleviated by the PLRA. Moreover, such a shift would further the important principles underlying [section] 1983 by removing the obstacles facing prisoners who allege violations of their constitutional or federal statutory rights.

In Part I, this Note discusses the history and purposes of [section] 1983 litigation and the immunities and defenses available to defendants. This Part lays the foundation upon which the remainder of the Note will rely, specifically that the purposes of [section] 1983 dictate a reassessment of the current prisoner litigation regime. Part II provides an overview of the PLRA and reveals how its preliminary effects on prisoner litigation make it possible, in light of both the reasons for its passage and the purposes of [section] 1983, to make the shift from qualified immunity to a good faith defense. Finally, Part III examines the operation of [section] 1983 and the doctrine of qualified immunity with regard to prisoner litigation by performing a functional analysis on two Supreme Court cases: Procunier v. Navarette (17) and Richardson v. McKnight. (18) This Part argues that there is no meaningful distinction between public and private prison guards and, as such, both should be treated similarly with regard to [section] 1983 litigation. Ultimately, this Part concludes that while both sets of guards should be amenable to suit under [section] 1983, neither should be entitled to qualified immunity in its current form.

1. SECTION 1983 LITIGATION: HISTORY, PURPOSES, REQUIREMENTS, AND DEFENSES

   What is now 42 U.S.C. [section] 1983 was first passed as part of Section 1 of the Ku Klux Klan (Civil Rights) Act of 1871. (19) Though the statute remained largely unutilized for nearly its first hundred years of existence, the Supreme Court in Monroe v. Pape (20) breathed life into [section] 1983, acknowledging that the statute provided a cause of action for the vindication of federal statutory and constitutional rights. (21) Congress enacted the statute in the wake of the Civil War largely due to conditions in the southern states where state laws protecting individual rights were not enforced equally with regard to former slaves. (22) According to the Court, [section] 1983 targets the "'[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" (23) The remainder of this Part delves into the purposes and mechanics of a [section] 1983 suit. Subpart A discusses the purposes of litigation under [section] 1983. This subpart also sets forth the mechanics of a [section] 1983 suit by setting forth the statute's requirements. Subpart B describes the various immunities (absolute and qualified), and defenses (good faith) associated with [section] 1983 suits, and introduces some of the conflict involved with their application.

   1. Purposes and Requirements of a [section] 1983 Suit

      The general purposes underlying [section] 1983 litigation are deterring officials from using their positions to deprive individuals of their rights protected by the Constitution or federal statutes, (24) and providing victims of such deprivations with a remedy in federal court. (25) While the drafters of the statute clearly had the plight of former slaves close to mind, (26) the statute provides a federal cause of action for any person who has been deprived of her federally protected rights by a defendant acting under color of state law. (27) The fact that it provides a federal cause of action is significant, especially from a historical point of view, because the statute interposes (theoretically) a more neutral arbiter in these cases where the defendant is, in some manner, a representative of the state. (28)

      To sufficiently make out a [section] 1983 claim, a plaintiff must first be able to show that she has been deprived of some right protected by the Constitution or federal law. (29) Second, the plaintiff must show that the alleged deprivation occurred under color of law, meaning that the defendant acted either (1) with the power of the state behind him, or (2) with the apparent power of the state behind him. (30) Regardless of the identity or legal status of the named defendant in a [section] 1983 case, the plaintiff must demonstrate that the person acted under color of a state "statute, ordinance, regulation, custom, or usage." (31)

      Significantly, the second showing does not require that the defendant acted in an official capacity on behalf of the state, According to the Supreme Court, in certain circumstances, private parties can act under color of law. (32) However, private parties simply following a law, without "something more," do not act under color of law. (33) In any case, the court will engage in an intensely fact-specific analysis as to whether the private party's action was sufficiently transformed into state action for purposes of a [section] 1983 suit. (34) If it finds that someone acting under color of state law deprived the plaintiff of a constitutional or federal right, the court must then analyze what immunities or defenses are available to the defendant.

   2. Immunities and Defenses to [section] 1983 Suits

      Despite the fact that [section] 1983 fails to mention any defenses in its text, (35) the Supreme Court has consistently allowed for some form of immunity to be asserted if the "tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that 'Congress would have specifically so provided had it wished to abolish the doctrine.'" (36) As a general matter, a [section] 1983 defendant today can assert immunity if someone similarly situated when the 1871 Act was passed would have been able to assert immunity and if policy concerns dictate continuing the immunity. (37) Thus, possible immunities and defenses to a [section] 1983 suit vary depending on the defendant's status or position.

      1. Absolute Immunity

         Traditionally, absolute immunity from civil damages has been accorded to legislators, (38) judges, (39) and prosecutors (40) so long as they were performing what the Court determined to be "core" functions of their positions. (41) The Supreme Court has usually justified the recognition of absolute immunity in terms of public policy. For example, in Tenney v. Brandhove, (42) the Court stated that "[l]egislators are...