Kent Alexander v. William Perrill and Luis Rivera

916 F.2d 1392, 1990 U.S. App. LEXIS 17730, 1990 WL 149729

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 1990
• Docket: 88-15842
• Status: Published

Opinions

REINHARDT, Circuit Judge:

William Perrill and Luis Rivera, defendants in this Bivens actionappea¹, the denial by the district court of their motion for summary judgment on their defense of qualified immunity. Perrill and Rivera are federal prison officials. They contend that the district court erroneously decided that their failure to consider Alexander’s valid claim that he was being incarcerated for a longer period than permitted by law amounted to deliberate indifference to a violation of his clearly established constitutional or statutory rights. We affirm the denial of their summary judgment motion.

FACTS

On November 4, 1983, Alexander was arrested in the Republic of Germany on local charges. He was due to be released from a German jail on a bail bond on January 5, 1984, but wasn't, because a detainer was issued by the United States on January 3, 1984. Subsequently, he was convicted of the German charges and in August of 1984 began serving a fifteen month prison term.

On October 11, 1984, German authorities notified the United States that Alexander was not required to complete the remainder of his German sentence. The German authorities further indicated that he had been detained for extradition since October 9, 1984, and that the forty-day period for presentation of documents for extradition had begun to run.² The United States Embassy formally requested his extradition on October 23, 1984.

On February 5, 1985, Alexander was delivered to American authorities. He was subsequently tried and convicted of fraud and income tax charges. At his sentencing hearing, the district court received evidence that his German conviction had been vacated pursuant to German law. The district court therefore ordered that his presen-tence investigation report reflect that he had been in the custody of the United States for twenty-one months as of October 21, 1985. The court thus adopted Alexander’s position that United States custody had commenced on January 21, 1984. He was then sentenced to a 3M¡ year prison term.

On June 20, 1986, Alexander was transferred to the Federal Correctional Institution, Tucson (FCI-Tucson). At that time, William Perrill was the Warden and Luis Rivera was the Administrative Systems Manager of the institution. Rivera was under Perrill’s supervision and was responsible for computation of jail sentences and any applicable jail time credit for inmates at FCI-Tucson.

The Bureau of Prisons’ policy requires that jail credit from a foreign jail be verified and monitored by the Central Office, Bureau of Prisons in Washington, D.C. (Central Office). Bureau of Prisons Program Statement 5880.24. On July 1, 1986, the Department of International Affairs (DIA) contacted the Central Office and argued that, according to German authorities, Alexander was not in custody solely for extradition purposes until October 9, 1984. The DIA requested that Alexander’s jail and presentence credits be adjusted to reflect that fact. On July 2, the Central Office sent a memorandum to Rivera advising him that he was authorized to correct the jail time so that Alexander would receive credit only for the period from October 9, 1984.

Alexander was shown the Central Office memorandum on July 9, 1986. He objected to Rivera and Perrill, orally and in writing, regarding the decision to recalculate his sentence and to the summary manner in which it was reached. He requested the prison officials to conduct an investigation. On several instances, Alexander met with Rivera and presented him with certified court documents which Alexander claimed entitled him to the jail and presentence credits. Rivera made no inquiries, conducted no investigation, did not forward the documents to the Central Office, and made no effort to determine whether the Central Office was aware of all of the facts submitted to him by Alexander. Instead, he continued to rely exclusively on the Central Office memorandum and rejected Alexander’s claim.

In response to Alexander’s requests for an investigation into the Central Office’s computation of the jail credits, Perrill checked with Rivera about the calculation of the sentence. Rivera informed Perrill that the calculation was based on the memorandum received by the Central Office. Perrill was satisfied with that response and took no further action; in fact, neither of the two officials made any further inquiry regarding Alexander’s claims.

Alexander’s first petition for writ of ha-beas corpus was dismissed on the ground that he had failed to exhaust his administrative remedies. He then resumed his efforts to persuade Perrill to act by filing a formal complaint demanding reinstatement of his credits and an investigation into their withdrawal. Perrill and Rivera, again relying exclusively on the Central Office memorandum, denied Alexander’s request. Alexander then appealed the decision to the Regional and Central Office of the Bureau of Prisons as provided for by prison regulations.³ The appeals were unsuccessful.

After exhausting his administrative remedies, Alexander filed a second petition for writ of habeas corpus in district court. Alexander alleged in the petition that the withdrawal of the foreign jail and presen-tence credits was improper and that he was entitled to immediate release. The district court agreed and ordered the Bureau of Prisons to recompute Alexander’s sentence so as to give him credit for the period between January 13, 1984 and October 9, 1984. The court further ordered his release from prison. No appeal from the district court’s orders was taken.

Alexander then filed this action seeking declaratory relief and money damages. In his complaint, he alleged that the prison officials’ failure to afford him the presen-tence and jail credits and their failure to investigate his claims that his sentence was incorrectly calculated constituted deliberate indifference to his constitutional and statutory rights. The prison officials moved for summary judgment arguing that they were entitled to qualified immunity because Alexander’s rights were not “clearly established” and that, in any event, they acted reasonably in response to his requests to have his credits recomputed.

The district court rejected the prison officials’ arguments on the narrow ground that the failure to accede to Alexander’s requests for an investigation constituted deliberate indifference to a clearly established right. Accordingly, the Court found that the prison officials were not entitled to qualified immunity and denied their motion for summary judgment.⁴ Defendants appeal.⁵ We affirm.

ANALYSIS

I

Alexander contends that the prison officials were deliberately indifferent to his constitutional and statutory rights when they refused to investigate the claim that his credits had been improperly computed.⁶ The prison officials disagree; they also argue that the qualified immunity defense is applicable in any event because Alexander’s rights were not “clearly established” when he demanded an investigation. It is only the latter question that we need consider on this appeal.⁷ We review de novo a district court’s denial of summary judgment based upon a qualified immunity defense. White by White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986).

Taking the undisputed facts as the district court characterized them, the defendants did nothing to inquire into or investigate Alexander’s complaints.⁸ Judge Bilby made an observation that would strike a responsive chord in the hearts of most citizens, “You see, that’s one of the things about bureaucrats that bothers me. You just can’t sit on your duff and not do anything.” He then announced that “[i]f you just sit around and don’t do anything, you do run a chance of being responsible.” We agree, wholeheartedly.

As a general rule, an official is entitled to qualified immunity from damages if his conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). We must identify the applicable law and determine whether that law was “clearly established” at the time the defendants acted. Todd v. United States, 849 F.2d 365, 368 (9th Cir.1988). We have recently explained the rationale behind this analysis:

“If the controlling law is not clearly established, a reasonable person would not be expected to know how to structure his conduct in order to avoid liability. In such a case the defendant will be immune from suit. On the other hand, if a defendant has violated clearly established law, he will generally be liable.”

Id. at 368-69 (citing Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984)).

The allegations in Alexander’s complaint give rise to a somewhat different qualified immunity question than we usually are faced with in Bivens cases. Typically, we are required to determine whether the official should have known that his affirmative conduct violated someone’s rights. Here, however, Alexander urges that the defendants are not entitled to qualified immunity because they had a duty to protect his rights and the official’s failure to act was inconsistent with that duty.

We have previously held that under § 1983 the qualified immunity defense is inapplicable whenever an official “does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation [of an individual’s rights].” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) (emphasis added). Under § 1983 when an official fails to take an action that he has a clearly established duty to take and that failure is a foreseeable contributing factor to the violation of a plaintiff’s constitutional rights, the defense is similarly unavailable. Id. We see no reason that same rule should not apply in Bivens cases. See Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978) (for purposes of immunity analysis no distinction should be drawn between suits brought against state officials under § 1983 and suits brought under the Constitution against federal officials); Lonneker Farms, Inc. v. Klobucher, 804 F.2d 1096, 1097 (9th Cir.1986) (same). On this appeal, the question is whether the prison officials failed to perform a clearly established duty that they were required to perform in order to protect the Constitutional rights of the plaintiff and others like him. To answer this question, we must decide whether it was clearly established that the particular conduct of the officials was, in fact, violative of the duty.

This formulation of our inquiry effectuates the purpose of the rule set forth in Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In Harlow, the Supreme Court was careful to explain that the qualified immunity defense is not intended to provide a license to engage in lawless conduct. Similarly, that defense does not constitute a license to refrain from carrying out one’s lawful duties. Rather, it is intended to allow a public official to act with “independence and without fear of consequences” when his actions are not clearly contrary to the law. Harlow 457 U.S. at 819, 102 S.Ct. at 2738. Harlow tells us that where an official can be expected to know that certain conduct would violate statutory or constitutional rights, “he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action.” Id.

The inquiry we have described is fully consistent with the Supreme Court’s ruling in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), which requires us to look to the defendant’s conduct in a particularized sense. We must find that the contours of the duty were sufficiently clear that a reasonable official would understand that what he was doing violated that duty. Id. at 640, 107 S.Ct. at . Thus, we consider whether it was clearly established that Perrill and Rivera had a duty to investigate Alexander’s claim that he was being incarcerated for a longer period than permitted by law.⁹

II

Perrill and Rivera do not contend that they have absolutely no duty to investigate a prisoner’s claim that his sentence has been miscalculated. Such a contention would clearly be meritless in light of the evidence in the record.¹⁰ Instead, they urge that because the Central Office had issued a memorandum declining to grant Alexander the credits, and because the merits of Alexander’s claim were complex, the duty to investigate his complaint was no longer clearly established. In effect, the prison officials’ contention relates only to the level of specificity aspect of our inquiry, i.e. whether in light of the Central Office’s prior contrary ruling, their conduct violated a clearly established duty to investigate Alexander’s claim. Defendants appear to advance the theory that they cannot be held accountable for their inaction because there are no cases establishing the duty of prison officials to investigate claims under the precise circumstances present here.

Initially, we must disagree with the defendants’ characterization of the law that applies to cases of the type before us. Under the defendants’ theory, an official would be immune from damages even if a reasonable person would have known that his conduct violated an individual’s rights, merely because the plaintiff’s injury did not occur after the precise facts had already been litigated in a prior case. In essence, defendants would have the courts litigate each of the duties for which a government official will be held accountable once before any official can ever be held liable for a breach — and then only if the breach occurred after the courts had finally resolved the initial case. The defendants would also permit us to impose liability only if the prior litigation involved precisely the same factual circumstances that are present in the case before us. The defendants’ arguments fail for two reasons.

First, the law simply does not require that we find a prior case with the exact factual situation in order to hold that the official breached a clearly established duty. See Anderson 483 U.S. at 639-40, 107 S.Ct. at 3038-39. In fact, we need only look to decisional law when an official can argue that the newly emerging status of an individual’s right made it less than clear for a reasonable official to know how to proceed. See Bergquist v. County of Cochise, 806 F.2d 1364, 1368 (9th Cir.1986). We recently disposed of a similar argument summarily in Wood v. Ostrander, 879 F.2d 583, 592 (9th Cir.1989). There, we said

“Ostrander seemingly suggests that this case can be disposed of if it does not bear a strict factual similarity to previous cases finding liability. However, this crabbed view of the good faith immunity principle cannot withstand analysis.”

Here, the prison officials’ obligation to investigate Alexander’s claim need not be set out in decisional law. Their duties are clearly established by virtue of the Bureau of Prisons regulations and policies which they were legally obligated to perform.

Second, even if we accepted the defendants’ theory as to the need for a prior case establishing the duty at issue, Alexander would still prevail because he is fortunate enough to have had a similar issue previously litigated and decided in his favor—a case which inexplicably both parties failed to cite in their briefs. In Haygood v. Younger, 769 F.2d 1350 (9th Cir.1985) (en banc), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) this court, sitting en banc, considered a case under § 1983 in which prison officials failed to investigate a claim that a prisoner’s sentence had been miscalculated. Id. at 1355. As a result the prisoner was incarcerated beyond his lawful term. In Haygood, we held that a judgment against prison officials was proper because “after being put on notice, [the prison officials] simply refused to investigate a computational error.” Id. We found that the failure to investigate was in itself sufficient evidence to support a finding of liability.

It is worth noting that in Haygood’s case, as here, the plaintiff’s argument that he was entitled to be released from prison was not clearly meritorious from the face of the objections he lodged with the prison officials. After the California prison officials decided which of Haygood’s four separate sentences should run consecutive or concurrent to each of the others, Haygood objected to the determination. The prison officials spoke with each other and responded to Haygood’s objections in writing. They attached an opinion from the state attorney general that they believed to be supportive of their letter. Haygood, 769 F.2d at 1353. Nonetheless, we concluded that the prison officials were deliberately indifferent to Haygood’s constitutional rights because they failed to address his credible evidence that he was entitled to release. Id. at 1355.¹¹

Here, as in Haygood, the defendants’ responsibilities included ensuring the proper calculation of prison sentences. Nevertheless, when faced with the possibility that a mistake was made, they did nothing to attempt to determine whether Alexander’s claim was meritorious. We simply will not, as the defendants urge, embrace a rule which would allow prison officials to stand by idly after an inmate has raised the prospect that he is being unlawfully incarcerated and has provided documentary evidence in support of his claim. Thus, we reaffirm our decision in Haygood that prison officials who are under a duty to investigate claims of computational errors in the calculation of prison sentences may be liable for their failure to do so when a reasonable request is made.

The cases which postdate Haygood do not suggest any reason to modify our conclusion. Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) and its progeny require us to find that the contours of defendants’ duties were sufficiently clear that a reasonable prison official would have understood that a failure to act under the circumstances would be wrongful. See id. at 640, 107 S.Ct. at 3039. Here, there is no question that defendants had a duty to investigate Alexander’s complaint when he presented his evidence to them. A reasonable prison official would have known that he was under a duty to act. By bringing the evidence to the defendants’ attention, Alexander sought to have an erroneous determination by the Central Office reexamined. In the Central Office memorandum, the Chief of Administrative Systems for the Bureau of Prisons had stated that, according to information he had received from the DIA, Alexander was not entitled to the credits. Alexander, however, offered verified court documents and other proof to rebut the DIA’s information. There can be no doubt that Alexander’s material at a minimum raised a substantial question regarding the correctness of the Central Office’s conclusion.

Finally, defendants appear to suggest that they had no duty to investigate claims regarding foreign jail credits. There is no basis in the record for any such suggestion. Bureau of Prisons Program Statement 5880.24 provides only that information concerning foreign jail time be sent to the Centra] Office for verification and monitoring purposes. It does not relieve prison officials of their duty to investigate complaints by prisoners under 28 C.F.R. § 542.11(a) or vest exclusive jurisdiction over the investigation of claims for foreign jail credits in the Central Office. Moreover, the government points to no evidence in the record that the Central Office was aware of the new information Alexander submitted. Nor is there anything in the record to suggest that the defendants had reason to believe that the Central Office had seen any of Alexander’s material before coming to its conclusion. Under these circumstances, at the very least it was incumbent upon the prison officials to inquire as to whether the Central Office was aware of Alexander’s evidence at the time it reached its decision. The failure to make any such inquiry and the continued reliance on the Central Office’s memorandum without further investigation constituted a clear breach of a well-established duty.¹²

We have no cause to determine whether the officials engaged in further or additional breaches or whether we could conclude that a breach occurred had the circumstances been different. In conclusion, however, we reiterate our view that “strict factual similarity” is not required in order to find that a right or a duty is clearly established. All that is necessary is that a reasonable person would have known that the right or duty exists.

For the above reasons, we hold that the district court properly refused to grant Perrill’s and Rivera’s motions for summary judgment on their defense of qualified immunity.¹³

The judgment of the district court is AFFIRMED.

1 . In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court decided that citizens may sustain an action for money damages against federal officers for violation of constitutional rights.

2 . Article 16, Section 4 of the Extradition Treaty between the United States and the Republic of Germany provides: state has not received the request for extradition and the documents mentioned in Article 14. This period may be extended upon the requesting state’s application for up to an additional twenty days after the apprehension of the person sought.

(4) Provisional arrest shall be terminated if within a period of forty days after the apprehension of the person sought the requested

3 . The Bureau of Prisons Administrative Remedy Procedure is set forth in 28 C.F.R. § 542.10-16.

4 .In its memorandum, the district court stated in part:

"[T]he undisputed facts indicate that defendants were informed on numerous occasions of plaintiff's contention that his sentence had been miscalculated. These assertions by the plaintiff were supported by documentary evidence. Defendants present no evidence that they investigated plaintiff's claims in any manner. This failure to investigate constituted deliberate indifference.”

It appears that the district court did not explicitly foreclose the possibility of reconsidering the deliberate indifference issue at trial, nor in fact the qualified immunity issue. However, the question of the precise effect of the district court’s ruling is not now before us, only the appeal from the failure to grant defendants qualified immunity by way of summary judgment.

5 . We have jurisdiction over this interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (a district court’s order denying summary judgment based on qualified immunity defense is appealable, notwithstanding interlocutory nature of the order).

6 . Alexander also contends that the refusal of the prison officials to afford him credit for his presentence and jail time constituted deliberate indifference. Because we find that the prison officials are not entitled to immunity for refusing to investigate his claim, we need not reach the broader issue.

7 . See n. 5 supra.

8 . On appeal, the government does not argue that this factual characterization is clearly erroneous.

9 . The prison officials have suggested that Alexander cannot prevail on his failure to investigate claim unless he can show that it was clearly established that he was entitled to the presen-tence and jail credits. Alexander’s right to an investigation is, of course, wholly independent of his right to be released from prison. Cf. Vanelli v. Reynolds School District No. 7, 667 F.2d 773 (9th Cir.1982). While the question whether an investigation would have resulted in Alexander’s release may be relevant to other issues, at a later stage of this litigation, it has no relevance to this appeal. Here, we are not concerned with whether the plaintiffs can ultimately establish liability, only with whether the defendants’ conduct is protected by the doctrine of qualified immunity.

10 . Mandatory and specific language in the Code of Federal Regulations' Administrative Remedy Procedures requires Perrill, as Warden of the federal institution, to investigate inmate complaints of this nature. According to the Administrative Remedy Procedures, Perrill was responsible for (1) the operation of the Administration Remedy Procedure at the institution; (2) establishing procedures for receiving, reviewing, investigating and responding to complaints or appeals by an inmate; and (3) conducting investigations into each complaint. See 28 C.F.R. § 542.11(a). (emphasis added)

Similarly, it can be inferred from the evidence in the record that Rivera’s duties as Administrative Systems Manager of the institution included the responsibility to assure that Alexander’s sentence was computed correctly. The district court has not yet permitted discovery which would allow Alexander to prove the extent of Rivera’s job responsibilities; however, Rivera has admitted that he was responsible for computing the sentences of all the inmates at the prison. For purposes of summary judgment, we must infer that this responsibility includes the obligation to take reasonable and necessary steps to ensure that the computation is performed accurately.

11 . For purposes of this appeal, it is unimportant that the Haygood court found the prison officials ultimately violated the plaintiff’s right to be free from cruel and unusual punishment, rather than the right to due process and to be free from double jeopardy as alleged in this case. The issue before us only involves the question whether a qualified immunity defense bars the claim. The issue, thus, as we have said earlier, is only whether there was a clearly established duty to investigate. Haygood answers that question in the affirmative.

12 . Even if Program Statement 5880.24 relieved defendants of their obligation to investigate some prisoners' complaints, defendants would not have complied with their duties under than Statement. Defendants had a duty under the Statement to send to the Central Office "copies of any documentation in the institution or in the possession of the inmate". At the very least, therefore, defendants had a duty to determine if the Central Office had copies of the documents Alexander furnished them.

13 . Our dissenting colleague argues that the defendants may not be held liable because their indifference to Alexander’s claims did not cause him any injury. Infra, part III at 1403-02. Whether or not this is so is simply irrelevant to the disposition of this appeal. In this interlocutory appeal we review only the district court’s determination that the defendants were not entitled to qualified immunity. The result turns on whether the defendants' conduct "vioIate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. Our finding that the defendants were not entitled to qualified immunity does not preclude them from raising any number of arguments at trial, including the argument that their actions did not injure Alexander. However, we have no occasion to address the injury issue at this stage in the proceedings.