Brett C. Kimberlin v. Michael J. Quinlan

6 F.3d 789, 303 U.S. App. D.C. 330, 1993 U.S. App. LEXIS 26145, 1993 WL 394526

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 8, 1993
• Docket: 91-5315
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge KAREN LECRAFT HENDERSON.

Separate concurring opinion filed by Circuit Judge STEPHEN F. WILLIAMS.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

KAREN LECRAFT HENDERSON, Circuit Judge:

[1] Brett C. Kimberlin, a federal prisoner, brought this action against J. Michael Quinlan, Director of the Bureau of Prisons (Bureau), Loye W. Miller, Jr., Director of Public Affairs at the Department of Justice (Department), and the United States. The complaint alleged Quinlan and Miller, in their individual capacities, conspired to violate and in fact violated Kimberlin’s rights under the first and fifth amendments to the United States Constitution by denying him, respectively, access to the press and due process of law. In addition, the complaint charged the United States and Quinlan in his official capacity with the torts of assault and battery and with violating title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511. The district court dismissed the tort claims in part¹ and the fifth amendment claims in toto but left intact the first amendment and title III claims. See Kimberlin v. Quinlan, 774 F.Supp. 1 (D.D.C.1991). Quinlan and Miller now appeal the district court’s denial of their motions for dismissal or summary judgment on the first amendment claims, alleging they are entitled to qualified immunity from liability on those claims.² For the following reasons we conclude the appellants are entitled to qualified immunity and, accordingly, reverse the district court’s decision and remand with direction to enter summary judgment in their favor on the first amendment claims.

The circumstances giving rise to Kimber-lin’s claims are largely undisputed. Sometime before the November 8, 1988 presidential election, while incarcerated' at the El Reno Federal Correctional Institution (El Reno) in El Reno, Oklahoma,³ Kimberlin announced to members of the news media that he had sold marijuana to Dan Quayle, the Republican candidate for Vice President, when Quayle was a law student in the early 1970s. On November 3, the Thursday before the election, NBC News contacted El Reno authorities and requested an interview with Kimberlin. The Bureau’s Central Office in Washington, under pressure from NBC News, directed that the interview be expedited in order to occur before the election. Accordingly, the interview was conducted on Friday November 4.⁴ On either Thursday or Friday, an official at the Bush/Quayle Campaign, having learned of the situation from other sources, telephoned the Bureau “for additional information” and was informed of the interview. Memorandum from Quinlan to Francis A. Keating, II, Associate Attorney General (Keating Memorandum) at 4.⁵

Other interview requests followed and, according to Carolyn A. Sabol, Regional Counsel for the Bureau’s South Central Regional Office, “the Acting Warden suggested that a joint interview be set up to reduce the strain on institution resources of handling each interview separately.” June 19, 1990 Letter from Sabol to Howard T. Rosenblatt, Counsel for Brett C. Kimberlin (Sabol Letter). Accordingly, R.C. Benefiel, executive assistant to the El Reno warden, told Kimberlin that “he would set up a ‘press conference’ for that evening at 7:00.” Oct. 30,1990 Declaration of Brett C. Kimberlin (Kimberlin Declaration) at 2. Mark Goodin, Deputy Press Secretary for the Bush/Quayle campaign, learned of the impending press conference from a reporter and telephoned Miller to say he was “amazed” that Kimberlin was to hold a press conference. Oct. 16, 1990 Deposition of Mark W. Goodin 73. Miller responded “Well, amazed or not, he’s going to have one. It’s within his rights to have one according to the rules and regulations.” Id.

Late in the afternoon of November 4, Quinlan ordered the press conference can-celled because, as he put it, “[t]he Bureau’s policy on media access permits individual media contacts by inmates, as well as small press pools under specialized circumstances, but does not authorize inmate press conferences.” Keating Memorandum at 3. Quinlan apparently maintained a consistent policy against press conferences by prisoners. See Aaron Freiwald, Isolation for Inmate with Quayle Claims, Legal Times, Dec. 19, 1988, at 10 (“Quinlan ... notes that he has not allowed a prison press conference since he became director of the bureau late last year.”).⁶

At approximately 11:30 p.m. on November 4 Kimberlin was placed in administrative detention at Quinlan’s direction. Sabol Letter at 3. The administrative detention order entered by the El Reno prison officials on November 4 recited as the reason for detention that Kimberlin “stated to the National news media this [sic] his life is in danger.” November 4, 1988 Detention Order. A contemporaneous memorandum from Benefiel to Kimberlin’s file stated that J.D. Williams, the Bureau’s South Central Regional Director, had telephoned to report that a radio reporter had informed Miller that Kimberlin “feared retaliation and had fear for his safeth [sic].” November 4,1988 Memorandum from R.C. Benefiel to Investigative File. The memorandum further noted that “the evening watch lieutenant ... had been receiving information that inmates on the compound were saying that if Kimberlin will snitch on Quale [sic] he will do the same to us.” Id. Benefiel’s memorandum concluded: “Based upon the information about his being called a snitch and the telephone call from Mr. Williams it was decided that to insure the inmates [sic] safety he would be placed in administration detention until the matter could be throughly [sic] investigated by investigative staff. I directed the evening watch to make such placement.” Id.

The following day, while Kimberlin was still in detention, Miller received another telephone call from Goodin who “noted the obvious: that the closer to the Tuesday election that the story were to break, the more attention it was likely to get, and the better the chance that it could have at least some adverse effect on the Bush-Quayle chances.” October 11, 1989 Memorandum from Miller to Whom it May Concern (Miller Memorandum) at 4. Miller noted, however, that “Goodwin [sic] did not try in any way to influence the department’s handling of Kim-berlin.” Id. Goodin himself denied seeking or receiving any “reassurances” from Miller, Goodin Deposition at 73, or ever speaking with anyone at the Bureau, id. at 90. In addition, Quinlan stated the Bureau received only a single call from the Busb/Quayle campaign regarding Kimberlin, the one described above, and that “[a]t no time during the entire period from Thursday, November 3rd through Election Day did anyone from the Bush/Quayle campaign ask or instruct the Bureau of Prisons to do anything with regard to this matter.” Keating Memorandum at 4. Around 7:30 that evening, Kimberlin was released from detention after an investigation revealed no threat to his safety and “Kimber-lin specifically stated he did not perceive a threat.” Sabol Letter at 3.

On November 7, Kimberlin was again placed in administrative detention, this time, according to the Bureau, for violating a Bureau regulation prohibiting any prisoner from making a third-party telephone call, that is, a call placed to one party who electronically transfers it to another party. November 7, 1988 Incident Report; see 28 C.F.R. § 540.104 (1988) (“Third party billing and electronic transfer of a call to a third party are not permitted.”). According to El Reno records, the third-party call occurred on November 4 when Kimberlin telephoned a friend who in turn connected him through a conference call to a lawyer for the Democratic National Committee. Nov. 14, 1988 Disciplinary Hearing Officer Report 2. The same records noted that Kimberlin admitted making the call but denied knowing it was proscribed. Id. He was found guilty of the violation after a hearing on November 14 and was released later that day. Id.

Kimberlin was placed in detention for a third time on December 22, according to the Bureau, for again violating the third-party telephone prohibition. Local prison officials released Kimberlin on December 23 and found him not guilty because there was “no specific evidence that [Kimberlin] intentionally placed a conference/third-party call.” January 9,1989 Incident Report. This detention occurred a few days after news stories appeared describing Kimberlin’s problems with prison officials and one day after Kimberlin had conducted two telephone interviews. Kimberlin Declaration at 4.

As previously noted, the foregoing facts are not in dispute. What is vigorously contested is the motivation for Kimberlin’s three detentions. Kimberlin alleges the first two detentions were ordered to deny him access to the press while the third was in retaliation for his media interviews. The appellants, on the other hand, maintain that the detentions were ordered for the reasons set out above: the first to ensure Kimberlin’s safety and the later two on account of the third-party call infractions. Specifically, they claim they are entitled to qualified immunity from suit because their actions were objectively reasonable under the facts as established in the record. We agree.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court established an objective test for qualified immunity under which “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id., at 818, 102 S.Ct. at 2738. Since then the Court has made it clear that qualified immunity should be granted, and suit dismissed, where the plaintiff “not only failed to allege the violation of a constitutional right that was clearly established at the time of the [defendant’s] action, but ... failed to establish the violation of any constitutional right at all.” Siegert v. Gilley, 500 U.S. 226, -, 111 S.Ct. 1789, 1794, 114 L.Ed.2d 277 (1991). The Court has emphasized that qualified immunity is “an immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985), and that “[o]ne of [its purposes] is to spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, -, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Thus, it “ordinarily should be decided by the court long before trial,” Hunter v. Bryant, — U.S. ——, -, 112 S.Ct. 534, 537, 116 L.Ed.2d 589 (1991), “at the earliest possible stage in litigation,” id., at -, 112 S.Ct. at 536, and “such pretrial matters as discovery are to be avoided if possible, as ‘[inquiries of this kind can be peculiarly disruptive of effective government.’ ” Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. at 2815 (quoting Harlow, 457 U.S. at 817, 102 S.Ct. at 2737-38).

Because of the special immunity accorded government officials who act in an objectively reasonable manner, this court has established a “heightened pleading” standard for a plaintiff like Kimberlin who sues government officials and alleges unconstitutional motive. Ordinarily, “[u]nder Rule 56(c), summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’” so that entry of summary judgment is “mandated” “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56).⁷ We impose a more stringent standard, however, on a plaintiff who charges a government official with a constitutional deprivation where the outcome depends on the official’s state of mind. Such a plaintiff is subject to this circuit’s so-called “heightened pleading” standard, requiring pleading of specific direct evidence of intent to defeat a motion to dismiss and subsequent production of such evidenee to defeat a motion for summary judgment.⁸ See Hobson v. Wilson, 237 U.S.App.D.C. 219, 737 F.2d 1 (1984); Smith v. Nixon, 807 F.2d 197 (D.C.Cir.1986); Martin v. District of Columbia Metro. Police Dep’t, 812 F.2d 1425 (D.C.Cir.1987); Martin v. Malhoyt, 830 F.2d 237 (D.C.Cir.1987); Whitacre v. Davey, 890 F.2d 1168 (D.C.Cir.1989); Sie-gert v. Gilley, 895 F.2d 797 (D.C.Cir.1990), aff'd on other grounds, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991).⁹ While refraining from adopting the direct/circumstantial distinction we employ, most other circuits have adopted some sort of “heightened pleading” standard to further the goal of qualified immunity, namely to protect government officials from the burdens of litigating “insubstantial claims,” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815; Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2738.¹⁰

In Whitacre, we explained the rationale for our heightened pleading standard as follows:

Since “substantial costs attend the litigation of the subjective good faith of government officials,” Harlow, 457 U.S. at 816, 102 S.Ct. at 2737, and since the Court stressed the need to terminate insubstantial Bivens¹¹ claims before trial, see id., at 815-16, 102 S.Ct. at 2736-37, we have supplanted the liberal pleading requirements of the Federal Rules with a heightened pleading standard whenever a plaintiff in a Bivens claim alleges an unconstitutional motive.

890 F.2d at 1171 (citing Malhoyt, Smith and Hobson). More recently, in Siegert, we clearly explained how the standard applies to a summary judgment motion based on qualified immunity:

Where the defendant’s subjective intent is an essential component of plaintiffs claim, once defendant has moved for pretrial judgment based on a showing of the objective reasonableness of his actions, then plaintiff, to avert dismissal short of trial, must come forward with something more than inferential or circumstantial support for his allegation of unconstitutional motive. That is, some direct evidence that the officials’ actions were improperly motivated must be produced if the case is to proceed to trial.

895 F.2d at 801-02 (citing Martin, 812 F.2d at 1435); see also Whitacre, 890 F.2d at 1171 (“[W]e have imposed, in cases where the defendant’s subjective intent is an essential part of the claim, a demanding requirement on the plaintiff in order to proceed to trial or obtain discovery. See Martin v. District of Columbia Metro. Police Dep’t, 812 F.2d 1425, 1435 (D.C.Cir.1987). ‘[T]o avert dismissal short of trial, [the plaintiff] must come forward with something more than inferential or circumstantial support for his allegation of unconstitutional motive. That is, some direct evidence that the officials’ actions were improperly motivated must be produced if the ease is to proceed to trial.’ Id. (emphasis added).”). Thus, in response to Miller’s and Quinlan’s motions below, Kimberlin was required to proffer direct evidence of unconstitutional motive on the part of the two defendants and was precluded from relying on mere circumstantial evidence. We conclude Kimberlin failed to sustain this burden.¹²

To establish unconstitutional motive for his first detention, Kimberlin relied primarily on alleged discrepancies among the various participants’ accounts of the circumstances preceding the detention. On November 4, the date of Kimberlin’s first detention, Miller spoke over the telephone at least twice with the radio reporter who, according to Miller, related that Kimberlin had told her the cancellation of the press conference “led him to believe his safety was threatened by the hostile attitude of the prison authorities.” Miller Memorandum 2-3. Quinlan, consistently, maintained he placed Kimberlin in detention after, and because, he learned that the reporter had “advised Loye Miller ... that she believed Kimberlin might be in some ‘danger.’ ” Keating Memorandum at 3. The reporter, on the other hand, while admitting that an hour before his detention Kimberlin told her he “was concerned about what the Justice Department might do to him,” denied having “quoted Kimberlin as saying his life was in danger.” November 9, 1990 Declaration of Radio Reporter at 2. Kimberlin himself denied ever having “perceived” or “expressed” “fears that other inmates would harm [him].” Kimberlin Declaration at 3.¹³ Assuming, as we must on this motion, that the reporter’s recollection of her conversations is correct and that she did not relay Kimberlin’s fear of the Department to Miller, her account merely disputes Miller’s description of their conversations, without contradicting the affirmative evidence that Quinlan ordered the detention because of information regarding Kimberlin’s safety, whether or not accurately conveyed, that he received from Miller.¹⁴ More importantly, none of the evidence Kimberlin cites does more than cast doubt on the appellants’ stated reasons for their actions — it does not constitute direct evidence that they acted out of any impermissible motive, as our circuit’s heightened standard requires. Cf. St. Mary’s Honor Ctr. v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (title vii plaintiff does not carry burden of persuasion merely by disproving proffered explanation for firing but must affirmatively establish race as actual motivating factor).

In fact, the motive Kimberlin alleges— denying him access to the press — seems particularly unlikely since Kimberlin had already aired his allegations to NBC News and was permitted telephone contact with members of the media and others, even during his detention. See Deposition of Richard D. Acuff, Exh. 4 (handwritten notes by prison staff documenting seven calls made by Kim-berlin on November 5 during his detention); November 7, 1988 Memorandum of T.C. Martin to J. Michael Quinlan (referring to “[s]even cassette tapes” containing “copies of the telephone conversation by Brett Kimber-lin with numerous news media personnel, family and friends”); Sabol Letter at 3 (“Kimberlin spoke to the radio reporter “again on Saturday, November 4, 1988, while he was still in detention”). Further, the timing and tenor of Miller’s conversations with the Bush/Quayle campaign belie any influence from that source. Because there is no direct evidence that Miller attempted to secure Kimberlin’s detention or that Quinlan did so for any reason other than Kimberlin’s safety, we conclude the district court erred in denying summary judgment as it related to Kimberlin’s first detention.

Kimberlin’s second allegation, that the November 7 detention was also ordered to deny him access to the press, fares no better. First, Kimberhn has cited no direct evidence that either Quinlan or Miller was even involved in this detention which appears to have been ordered by local prison officials. See Sabol Letter at 4 (“[T]his placement in administrative detention and the one in December, 1988, were both done at the local level and did not involve any direction or consultation with staff members of the Bureau of Prisons or the Department of Justice in Washington.”); Keating Memorandum at 4 (“[T]he local officials decided to place Kimberlin in detention on Monday morning. The Central Office was not involved in that decision.”).¹⁵ In addition, as already noted, it is beyond dispute that Kimberlin violated the published third-party call regulation — the reason the Bureau proffered for his second detention both contemporaneously, see November 7, 1988 Incident Report; November 14,1988 Disciplinary Hearing Officer Report, and subsequently, see Keating Memorandum 96; Sabol Letter at 68-69. Kimberlin has come forth with no direct evidence of any other motive for this detention.¹⁶

Finally, the appellants are entitled to qualified immunity on Kimberlin’s claim that the December 22 detention was retaliatory because the record is also devoid of any direct evidence that either appellant was involved in that detention which, according to El Reno records, was imposed by local officials for a second alleged violation of the third-party call regulation.

In sum, Kimberlin relies only on inference and weak circumstantial evidence, notably the timing of events, to support his claim of unconstitutional detention by Quinlan and Miller; he has produced no direct evidence of unconstitutional motive for any of his detentions as required under our heightened standard. Such unsubstantiated claims as Kim-berlin raises are precisely the sort that both qualified immunity and our circuit’s heightened standard are intended to cut short. Accordingly, the district court’s denial of the individual defendants’ motion to dismiss or for summary judgment on the first amendment claims is

Reversed and remanded.

1 . Kimberlin alleged claims of assault, battery and false imprisonment. The district court dismissed the first two, but not the third, for improper venue.

2 . Denial of a summary judgment motion based on qualified immunity is immediately reviewable by interlocutory appeal. Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985).

3 . Kimberlin is serving a fifty-one year sentence for drug- and explosives-related charges.

4 . NBC News ultimately declined to broadcast the story.

5 . The exact date of the call is unclear as Quinlan placed it on "Friday, November 3rd,” misidentifying either the day of the week or the date. Keating Memorandum at 4.

6 . The Bureau’s regulations set out procedures for personal interviews, 28 C.F.R. § 540.63 (1988), and press pools in which one representative from each news medium participates, 28 C.F.R. § 540.64 (1988), but make no mention of press conferences. While Kimberlin does not challenge the regulations’ validity, he does assert that because they do not prohibit press conferences he was entitled to hold one. The logic of Kim-berlin’s sub silentio argument eludes us. That which the regulations authorize is authorized; conversely what they do not authorize is not authorized. Further, the regulations provide that "[a]ny questions as to the meaning or application of this subpart are resolved by the Director of the Bureau of Prisons.” 28 C.F.R. § 540.61(g). Quinlan has, as noted, apparently consistently exercised his discretion under this provision to prohibit prisoner press conferences and to limit inmates' press access to the more manageable settings expressly authorized under the regulations. To the extent that this policy may impinge on a prisoner's first amendment rights, it is nevertheless valid as "reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987).

7 . As noted above, Miller's and Quinlan's motion was one for, alternatively, dismissal or summary judgment. Because the parties submitted and the district court considered materials outside the pleadings, we treat the motion as one for summary judgment. See Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....").

8 . ' When applied, as here, at the summary judgment stage, the expression “heightened pleading” is a misnomer because the enhanced standard requires a greater evidentiary showing rather than enhanced pleading. See Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir.1991) ("[W]e deprecate the expression ‘heightened pleading’ and speak instead of the minimum quantum of proof required to defeat the initial motion for summary judgment.”). For summary judgment, the applicable standard might better be characterized as one of "heightened production.”

9 . Recently, in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, - U.S. -, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), the Supreme Court rejected a heightened pleading standard in section 1983 suits alleging municipal liability but expressly noted it had "no occasion to consider whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials.” Id., at -, 113 S.Ct. at 1162. The Court observed that "unlike various government officials, municipalities do not enjoy immunity from suit— either absolute or qualified," id., suggesting the result might be different in individual capacity actions against government officials. The Court also noted that a true heightened pleading standard, applied to a motion to dismiss based solely on the pleadings, “is impossible to square, with the liberal system of ‘notice pleading’ set up by the Federal Rules” and particularly with rule 8(a)(2)’s requirement that “ ‘a complaint include only a short and plain statement that the pleader is entitled to relief,’” id., at -, 113 S.Ct. at 1163, a consideration that does not apply to a heightened standard of production at the summary judgment stage. See supra note 8. In any event, because the Court did not address heightened pleading in individual capacity suits, our precedent requiring that standard in such suits remains the governing law of this circuit.

10 . See, e.g., Dunbar Corp. v. Lindsey, 905 F.2d 754, 763-64 (4th Cir.1990) (“We agree with the Martin [v. Malhoyt] court that a ‘heightened pleading standard’ is highly appropriate in actions against government officials.”); Jackson v. City of Beaumont Police Dep't, 958 F.2d 616, 620 (5th Cir.1992) (“[Tjhis circuit requires that § 1983 plaintiffs meet heightened pleading requirements in cases, such as this, in which an immunity defense can be raised.”); Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986) (“It is not enough for a complaint under § 1983 to contain mere conclusory allegations of unconstitutional conduct by persons acting under color of state law. Some factual basis for such claims must be set forth in the pleadings.”); Elliott v. Thomas, 937 F.2d 338, 344-45 (7th Cir.1991) (‘‘[W]e think that the best solution to the conundrum is to require the plaintiff to produce ‘specific, nonconclusoiy factual allegations which establish [the necessary mental state], or face dismissal.’ Unless the plaintiff has the kernel of a case in hand, the defendant wins on immunity grounds in advance of discovery.” (quoting Siegert, 500 U.S. at -, 111 S.Ct. at 1795 (Kennedy, J., concurring)); Brown v. Frey, 889 F.2d 159, 170 (8th Cir.1989) ("Damage actions against government officials are subject to a heightened standard of pleading with sufficient precision ‘ "to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds." ’ Martin v. Malhoyt, 830 F.2d 237, 254 (D.C.Cir.1987) (quoting Hobson v. Wilson, 237 U.S.App.D.C. 219, 737 F.2d 1, 29 (1984))."); Branch v. Tunnell, 937 F.2d 1382, 1386-87 (9th Cir.1991) ("We believe a requirement that a plaintiff must put forward nonconclusory allegations of subjective motivation, supported either by direct or circumstantial evidence, before discovery may be had, satisfies Harlow’s directive that government officials should be shielded from 'insubstantial' lawsuits, while at the same time preserving the opportunity for plaintiffs to pursue meritorious claims.”); Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649-50 (10th Cir.1988) ("We agree with the Martin [v. District of Columbia Metro. Police Dep't] court that '[t]he Supreme Court’s "strong condemnation of insubstantial suits against government officials” impels the application of a standard more demanding of plaintiffs when public officer defendants move for summary judgment on the basis of their qualified immunity.' [Martin, 812 F.2d at 1435] (quoting Krohn v. United States, 742 F.2d 24, 31 (1st Cir.1984)). Where the defendant's subjective intent is an element of the plaintiff's claim and the defendant has moved for summary judgment based on a showing of the objective reasonableness of his actions, the plaintiff may avoid summary judgment only by pointing to specific evidence that the official’s actions were improperly motivated. In some instances only the pleadings are examined, see Hobson v. Wilson, 237 U.S.App.D.C. 219, 737 F.2d 1, 29-30 (1984) (heightened pleading standard required to proceed to discovery), while in others, such as the present case, the information that is developed by discovery before the motion is made should also be considered, DeVargas [v. Mason & Hanger-Silas Mason Co.], 844 F.2d [714,] 719 (10th Cir.1988).”); Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir.1992) (“On a related question about pleadings (whether the complaint states a claim), we want to use this opportunity to repeat that, 'in an effort to eliminate nonmeritorious claims on the pleadings and to protect public officials from protracted litigation involving specious claims we, and other courts, have tightened the application of Rule 8 to § 1983 cases.' Arnold v. Board of Educ. of Escambia County, 880 F.2d 305, 309 (11th Cir.1989) (citation omitted). In pleading a section 1983 action, some factual detail is necessary, especially if we are to be able to see that the allegedly violated right was clearly established when the allegedly wrongful acts occurred.”). The Fourth Circuit recently observed: "Whether the purposes of Harlow in discriminatory animus cases are expressed by means of qualified immunity formulation or by a requirement of heightened pleading is not critical. In either case, courts have sought to achieve the same purpose, namely the effectuation of the aims of qualified immunity in claims which incorporate a subjective element." Gooden v. Howard County, 954 F.2d 960, 970 n. 3 (4th Cir.1992) (en banc).

11 . In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court authorized damages actions against federal officials for constitutional torts.

12 . We recognize that in one recent section 1983 case alleging unconstitutional intent a panel of this court characterized the "heightened pleading” standard simply as requiring "nonconclusoty allegations” that are “sufficiently precise” and "specific and concrete enough” to put the defendants on notice of the nature of the claim and enable them to prepare a response, including a summary judgment motion based on qualified immunity grounds, without any mention of either direct or circumstantial evidence. Crawford-El v. Britton, 951 F.2d 1314, 1317, 1320 (D.C.Cir.1991). The reason for this omission appears to lie in the defendant-appellant’s failure to raise the distinction in her discussion of the heightened pleading standard. See Brief for Appellant at 12-14, Crawford-El. Even so, in finding the plaintiff had met the standard, the Crawford-El panel expressly relied on "specific statements" by the defendant that showed her intent. Id., at 1321. In any event, the panel decision in Crawford-El did not, and could not, overrule the then established circuit requirement that a plaintiff plead or produce, depending on the stage of litigation, direct evidence of unconstitutional intent.

13 . In support of his claim, Kimberlin also cites a statement by Miller that he was "pretty sure" that Kimberlin was already in detention before he spoke with the Bureau. Miller Memorandum at 4. This equivocal statement is inconsistent, however, with Miller’s recollection that he telephoned the Bureau at "perhaps 11 p.m.," Id. at 2, which would have been 10:00 p.m. in El Reno, Oklahoma, a full hour and a half before Kimber-lin was placed in detention.

14 . Given this evidence, Quinlan acted in an objectively reasonable manner in ordering Kimber-lin’s detention until his safety could be assured. Prison officials have an obligation to provide prisoners with reasonable protection from foreseeable violence. See, e.g., Washington v. District of Columbia, 802 F.2d 1478, 1481-82 (D.C.Cir.1986). Thus, given the information he received from Miller, Quinlan would have been remiss, and risked liability, had he failed to order detention and Kimberlin subsequently came to harm. Of course, by ordering the detention Quinlan also risked (and got) a lawsuit.

15 . Kimberlin cites two newspaper articles as evidence to support Quinlan’s involvement in the November 7 detention: one in the New York Times quoting Miller as saying "Mr. Kimberlin was twice placed in administrative detention on the order of J. Michael Quinlan, head of the Federal Bureau of Prisons,” Solitary for Quayle's Accuser, N.Y.Times, Dec. 20, 1988, at B9, and a .second in the Legal Times similarly quoting Miller as asserting that "[t]he Bureau of Prisons caught on that he was going to hold another press conference so they put him back in,” Aaron Freiwald, Isolation for Inmate with Quayle Claims, Legal Times, Dec. 19, 1988, at 10. Such hearsay, however, cannot defeat a summary judgment motion. While it is not necessary that “the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment,” Celotex, 477 U.S. at 325, 106 S.Ct. at 2553, "normally” hearsay "would not be enough to raise an issue of fact for summary judgment purposes,” Crawford-El v. Britton, 951 F.2d 1314, 1320 (D.C.Cir.1991). Specifically, “A third party's description of [a witness’s] supposed testimony is not suitable grist for the summary judgment mill.” Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990). Thus, the two newspapers' characterizations of Miller's statements are useless to Kimberlin. Further, as there is no evidence that Miller was involved in or had special information about the November 7 detention, his opinion regarding who ordered it or why cannot be viewed as direct evidence so as to satisfy our heightened standard.

16 . In her June 19, 1990 letter, Sabol wrote:

On Monday, November 7, 1988, upon review of intelligence information, it was determined that Mr. Kimberlin was attempting to use the telephone to set up a press conference in Washington D.C. that morning. As a result, Mr. Kimberlin was again placed in administrative detention, to avoid a violation of our rules and protect the integrity of institution security.

Id. at 3-4. There is nothing to suggest, however, that her explanation was based on information obtained from those involved (local officials) or even purportedly involved (Kimberlin and Miller) in the detention decision so as to constitute direct evidence of their intent.

Kimberlin also cites as evidence of improper intent that he was placed in detention before being found guilty of violating the third-party call regulation. See 28 C.F.R. § 541.22 (authorizing an inmate to be placed in administrative detention only (1) "when the inmate is in holdover status (i.e., en route to a designated institution) during transfer, or is a new commitment pending classification” or (2) "when the inmate’s continued presence in the general population poses a serious threat to life, property, self, staff, other inmates or to the security or orderly running of the institution” and one of six enumerated conditions is also present). This evidence, however, even if probative of intent, is wholly circumstantial and would therefore be insufficient to satisfy our heightened standard.