Section 1983 Litigation/Personal-Capacity Claims: Absolute Immunities

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Section 1983 Litigation
Table of Contents
Introduction to § 1983 Litigation
The Statute
Historical Background
Nature of § 1983 Litigation
Right to Trial by Jury
Jury Instructions
Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials
The Bivens Claim for Relief
Law Governing Bivens Claims
Elements of Claim, Functional Role, Pleading, and Jurisdiction
Elements of the § 1983 Claim
Functional Role of § 1983
Pleading § 1983 Claims
Federal Court Jurisdiction
State Court Jurisdiction
Section 1983 Plaintiffs
Persons Entitled to Bring Suit Under § 1983
Constitutional Rights Enforceable Under § 1983
Due Process Rights: In General
Procedural Due Process
Substantive Due Process Claims
Use of Force by Government Officials: Sources of Constitutional Protection
Arrests and Searches
Malicious Prosecution Claims Under Fourth Amendment
Conditions-of-Confinement Claims Under Eighth Amendment
First Amendment Claims
Equal Protection “Class-of-One” Claims
Enforcement of Federal Statutes Under § 1983
Enforcement of Federal “Rights”
Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy
Current Supreme Court Approach
Enforcement of Federal Regulations Under § 1983
Color of State Law and State Action
State and Local Officials
State Action Tests
Section 1983 Defendants
State Defendants
Interplay of “Person” and Eleventh Amendment Issues
Municipal Defendants
State Versus Municipal Policy Maker
Departments, Offices, and Commissions
Capacity of Claim: Individual Versus Official Capacity
Municipal Liability
Fundamental Principles of § 1983 Municipal Liability
Officially Promulgated Policy
Municipal Policy Makers
Custom or Practice
Inadequate Training
Inadequate Hiring
Pleading Municipal Liability Claims
Liability of Supervisors
Relationship Between Individual and Municipal Liability
Los Angeles v. Heller
If Plaintiff Prevails on Personal-Capacity Claim
“Cost Allocation Scheme”
State Liability: The Eleventh Amendment
Relationship Between Suable § 1983 “Person” and Eleventh Amendment Immunity
Eleventh Amendment Protects State Even When Sued by Citizen of Defendant State
State Liability in § 1983 Actions
Personal-Capacity Claims
Municipal Liability; the Hybrid Entity Problem
Eleventh Amendment Waivers
Eleventh Amendment Appeals
Personal-Capacity Claims: Absolute Immunities
Absolute Versus Qualified Immunity: The Functional Approach
Judicial Immunity
Prosecutorial Immunity
Witness Immunity
Legislative Immunity
Personal Liability: Qualified Immunity
Who May Assert Qualified Immunity? Private Party State Actors
Clearly Established Federal Law
Procedural Aspects of Qualified Immunity
Exhaustion of State Remedies
State Judicial Remedies: Parratt-Hudson Doctrine
Preiser, Heck, and Beyond
State Administrative Remedies; PLRA
Notice of Claim
Preclusion Defenses
State Court Judgments
Administrative Res Judicata
Arbitration Decisions
Statute of Limitations
Limitations Period
Relation Back
Survivorship and Wrongful Death
Wrongful Death
Abstention Doctrines
Pullman Abstention; State Certification Procedure
Younger Abstention
Colorado River Abstention
Burford Abstention
Domestic Relations Doctrine
Tax Injunction Act
Monetary Relief
Nominal and Compensatory Damages
Punitive Damages
Release-Dismissal Agreements
Prison Litigation Reform Act
Attorneys’ Fees
Section 1988 Fee Litigation
Prevailing Parties
Computation of Fee Award: Lodestar Adjustment Method
Other Fee Issues
Model Instructions
Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law
Model Instruction 2: Fourth Amendment Excessive Force Claim
Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim
Model Instruction 4: Fourth Amendment False Arrest Claim
Model Instruction 5: Municipal Liability—General Instruction
Model Instruction 6: Municipal Liability—Inadequate Training or Supervision
Model Instruction 7: Compensatory Damages
Model Instruction 8: Punitive Damages

Absolute Versus Qualified Immunity: The Functional Approach[edit | edit source]

Despite § 1983’s “broad terms,” the Supreme Court “has long recognized that” officials sued for monetary relief in their personal capacities may be entitled to assert a common-law defense of absolute or qualified immunity.[1] In general, the Court, applying a “functional approach,” has held that judges, prosecutors, witnesses, and legislators may assert absolute immunity, while executive and administrative officials may assert qualified immunity.[2] Most officials are entitled only to qualified immunity.

The Court “has looked to the common law [of 1871] for guidance in determining the scope of the immunities available in a § 1983 action” and does “not simply make [its] own judgment about the need for immunity” by making “‘a freewheeling policy choice.’”[3] On the other hand, it has not applied the common-law immunities “mechanically,”[4] and has considered developments in the law since 1871 as well as policy concerns underlying § 1983.[5]

Under the “functional approach” adopted by the Supreme Court, an official’s entitlement to absolute or qualified immunity depends on “‘the nature of the function performed, not the identity of the actor who performed it.’”[6] Thus, an official may be entitled to absolute immunity for carrying out one function but only to qualified immunity for another. For example, a judge may assert absolute judicial immunity for carrying out her judicial functions, but only qualified immunity for carrying out administrative and executive functions, such as hiring and firing court employees.[7] And, as discussed below, prosecutors may claim absolute prosecutorial immunity for their advocacy functions, but only qualified immunity for their investigatory and administrative functions.

Determining the nature of the function an official carried out may present difficulties. For example, the line between a prosecutor’s advocacy and investigative functions is not always clear. A court may be able to avoid having to decide the type of function the defendant/official carried out if the official is protected by qualified immunity anyway because she did not violate clearly established federal law. In Ashcroft v. al-Kidd,[8] the Supreme

Court held that former Attorney General Ashcroft was protected from liability by qualified immunity because his policy concerning enforcement of the federal material witness statute did not violate clearly established Fourth Amendment law. This determination made it unnecessary for the Court to “address the more difficult question whether [Ashcroft] enjoys absolute [prosecutorial immunity].”[9]

Judicial Immunity[edit | edit source]

Judicial Immunity Protects Judicial Acts Not in Complete Absence of All Jurisdiction[edit | edit source]

The law has long recognized that judges carrying out their judicial functions enjoy broad absolute judicial immunity.[10] This immunity is designed to allow judges to carry out their judicial functions without the fear that disappointed parties may seek to establish liability against them. A judge does not lose absolute immunity simply because he acted in excess of jurisdiction; absolute immunity is lost only when the judge either did not perform a judicial act or when the judge “acted in the clear absence of all jurisdiction.”[11] A judge who acts in excess of jurisdiction, or without personal jurisdiction, or who makes grave procedural errors, or who acts “maliciously or corruptly” or “in excess of authority,” does not necessarily act in the clear absence of all jurisdiction.[12] To determine whether the judge performed a “judicial act,” courts consider whether the judge engaged in action normally performed by a judge, and whether the parties dealt with the judge in her judicial capacity. (Examples of judicial and nonjudicial acts are cited in the endnote.)[13]

In Pierson v. Ray,[14] the Court held that the judicial functions of determining guilt and sentencing a criminal defendant are protected by absolute immunity.[15] Judicial immunity was deemed proper for two reasons: the common law of 1871 (when the original version of § 1983 was enacted) supported it; and the policy behind § 1983 was not to deter judges from performing their jobs. The Court stated that judicial immunity

“is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.” It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.[16]

In short, absolute immunity is necessary to protect the judicial system. The essential philosophy is that the remedy for judicial errors is an appeal, not a § 1983 lawsuit for damages.

The Supreme Court has had to define the boundaries of “judicial” actions. In Stump v. Sparkman,[17] the Court held that Judge Harold D. Stump had performed a judicial act when he authorized a mentally retarded girl to undergo a tubal ligation at the request of her mother.[18] The Court explained that absolute judicial immunity applies to actions taken by judges “in error, . . . maliciously, or . . . in excess of [their] authority,” but not in the “clear absence of all jurisdiction.”[19]

Furthermore, an action can be judicial even if it lacks the formality often associated with court proceedings; the question is whether the action is one normally performed by a judge. In Stump, the Court recognized absolute immunity for the judge’s act of ordering a tubal ligation, even though there had been no docket number, no filing with the clerk’s office, and no notice to the minor. Similarly, in Mireles v. Waco,[20] the Court determined that a judge performed a judicial act in ordering a bailiff to use excessive force to compel an attorney to attend court proceedings because directing officers to bring counsel to court for a pending case is a function normally performed by a judge.[21] Even though judges do not have the authority to order police officers to commit battery, they have broad authority to maintain court proceedings.

A judge is protected only by qualified immunity when carrying out administrative functions. In Forrester v. White,[22] the Supreme Court, applying the functional approach, held that when a judge fired a probation officer, he performed an administrative act, and was thus protected only by qualified immunity.[23] The Court rejected the argument that judges should have absolute immunity for employment decisions because an incompetent employee can impair the judge’s ability to make sound judicial decisions. It reasoned that employment decisions made by judges “cannot meaningfully be distinguished from” employment decisions made by district attorneys and other executive officials, and “no one claims they give rise to absolute immunity from liability in damages under § 1983.”[24]

Injunctive Relief: Federal Court Improvements Act[edit | edit source]

Judicial immunity is primarily at issue when the plaintiff seeks monetary relief against a state court judge. In Pulliam v. Allen,[25] the Supreme Court held that judicial immunity did not encompass claims for prospective relief and attorneys’ fees against a judge in her judicial capacity. The Federal Court Improvements Act of 1996 (FCIA) amended § 1983 and its attorneys’ fees provision[26] to provide that injunctive relief and § 1988 fees generally may not be granted against a judicial officer “for an act or omission taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.”[27] The FCIA amended § 1988(b) to provide that attorneys’ fees may not be awarded against a judicial officer based on conduct in a judicial capacity, unless the officer’s conduct was in clear excess of the officer’s jurisdiction.

The District of Columbia Circuit Court of Appeals found that these FCIA provisions are not limited to judges, and extend “to other officers of government whose duties are related to the judicial process.”[28] The court held specifically that the FCIA protected public defender program administrators’ selection of attorneys for court-appointed attorney panels in juvenile delinquency cases because the administrators acted in a judicial capacity.

Hearing Officers, Court Reporters, and Court Clerks[edit | edit source]

In some circumstances, administrative hearing officers may claim absolute quasi-judicial immunity. Whether absolute immunity is appropriate depends primarily on whether the hearing officer is politically independent, and if the hearing affords sufficient procedural safeguards to ensure that the administrative process fairly resembles the judicial process.

In Butz v. Economou,[29] the Supreme Court held that federal hearing officers were entitled to assert absolute quasi-judicial immunity because, inter alia, the officers carried out a function comparable to that of trial judges. The Court also held that the hearings afforded adequate procedural safeguards, and, “[m]ore importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency.”[30]

By contrast, in Cleavinger v. Saxner,[31] the Supreme Court held that the defendants, prison officials, who held disciplinary hearings were not entitled to claim absolute immunity because of their lack of independence and insufficient procedural safeguards. The Court found that a committee of federal prison officials did not perform a judicial act in deciding to discipline a prisoner after a hearing. The committee members were not administrative law judges. Rather they work with the fellow employee who lodged the disciplinary charge against the inmate, and are thus under pressure to resolve the matter in favor of the prison institution and the fellow employee.[32]

The Supreme Court held that court reporters may not assert absolute immunity because they do not engage in the kind of discretionary decision making or exercise of judgment protected by judicial immunity.[33] Federal appellate court authority holds that judicial law clerks may claim absolute immunity “where they are performing discretionary acts of a judicial nature.”[34] However, the ministerial acts of court clerks are governed by qualified immunity.[35]

Prosecutorial Immunity[edit | edit source]

A prosecutor is absolutely immune when acting as an advocate for the state by engaging in conduct that is “intimately associated with the judicial phase of the criminal process.”[36] Supreme Court decisional law holds that “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protection of absolute immunity.”[37] Prosecutors are not absolutely immune from liability for administrative actions or investigative functions not closely related to either trial preparation or the trial process. Prosecutorial immunity does protect the prosecutor in her role as advocate even if she acted in clear violation of law,[38] or even “with an improper state of mind or improper motive.”[39] Further, “a prosecutor is absolutely immune from a civil conspiracy charge when his alleged participation in the conspiracy consists of otherwise immune acts.”[40]

In Imbler v. Pachtman,[41] the Court held that a prosecutor was entitled to absolute immunity for “initiating a prosecution and in presenting the State’s case.”[42] The Court found that prosecutorial immunity protected even the knowing use of false testimony at trial and deliberate suppression of exculpatory evidence.[43] The Court granted absolute immunity after considering two issues: (1) the availability of immunity at common law and (2) whether absolute immunity would undermine the goals of § 1983. At common law, prosecutors had immunity from suits based on malicious prosecution and defamation. In addition, the Court reasoned that absolute prosecutorial immunity properly shields prosecutors from suits by disgruntled criminal defendants, and protects their ability to act decisively. The Court found, on the one hand, that qualified immunity would not adequately protect prosecutors and, on the other hand, that the remedies of professional self-discipline and criminal sanctions would serve as adequate checks on the broad discretion of prosecutors.[44]

Prosecutors have been held absolutely immune to carry out such advocacy actions as

  • deciding whether to prosecute;
  • engaging in pretrial litigation activities concerning applications for arrest and search warrants, bail applications, and suppression motions;
  • appointing special prosecutor;
  • making decisions concerning extradition;
  • preparing for trial, including interviewing witnesses and evaluating evidence;
  • failing to turn over exculpatory material to defense;
  • introducing evidence;
  • plea bargaining;
  • entering into release-dismissal agreement;
  • making sentencing recommendations;
  • failing to disclose exculpatory material to defense in post-conviction proceedings.[45]

Prosecutors, however, may not claim absolute immunity for investigative and administrative functions not related either to trial preparation or to the trial process.[46] Thus, decisional law holds that prosecutors may assert only qualified immunity for such administrative and investigative functions as

  • holding a press conference;[47]
  • engaging in investigative activity prior to the establishment of probable cause to arrest;[48]
  • providing the police with legal advice during the investigative phase;[49]
  • ordering police to conduct warrantless arrests;[50] and
  • participating in execution of material witness warrant.[51]

Courts often must draw fine distinctions in determining whether the prosecutor’s actions should be characterized as advocacy, or as investigative or administrative activity.[52] In Van de Kamp v. Goldstein[53] (discussed in detail infra), the Supreme Court held that even a prosecutor’s administrative actions are protected by absolute prosecutorial immunity when they are closely related to the trial process. In Burns v. Reed,[54] the § 1983 complaint challenged the prosecutor’s (1) misleading presentation of a police officer’s testimony at a probable cause hearing for the issuance of a search warrant, and (2) legal advice to police officers about the use of hypnosis as an investigative tool and the existence of probable cause to arrest the plaintiff.[55] The Supreme Court held that the prosecutor had absolute immunity for his participation at the probable cause hearing,[56] but only qualified immunity for his legal advice to the police.[57] While the prosecutor at the probable cause hearing acted as an “advocate for the state,”[58] “advising the police in the investigative phase” was too remote from the judicial process.[59] Furthermore, it would be “incongruous” to afford prosecutors absolute immunity “from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice.”[60]

In Buckley v. Fitzsimmons,[61] the Court again stressed that absolute prosecutorial immunity applies only when the prosecutor’s challenged action is sufficiently related to the judicial process. The Court held that the prosecutor did not have absolute immunity for: (1) conspiring “to manufacture false evidence that would link [the plaintiff’s] boot with the boot print the murderer left on the front door,” and (2) conducting a press conference defaming the plaintiff shortly before the defendant’s election and the grand jury’s indictment of the plaintiff.[62] In neither instance did the prosecutor act as an “advocate” for the state.[63]

The Buckley Court attempted to create a bright line for distinguishing prosecutorial acts from investigative acts by holding that a prosecutor’s “advocacy” starts when he has probable cause to make an arrest.[64] It blurred the line, however, by stating that the presence or absence of probable cause is not dispositive of the issue of absolute immunity because, even after a prosecutor has probable cause, he may perform investigative work protected only by qualified immunity.[65] In Buckley, the prosecutor did not have probable cause to arrest the plaintiff before he allegedly manufactured false evidence and thus was not entitled to absolute immunity. With respect to the defamatory press conference, the Court found that even if media relations is an important part of a prosecutor’s job, it is not functionally tied to the judicial process.

In Kalina v. Fletcher,[66] however, the Court did not refer to the presence or absence of probable cause in deciding whether actions performed by a prosecutor were protected by absolute immunity. Instead, it focused on whether the prosecutor had filed sworn or unsworn pleadings. The Court held that the prosecutor had absolute immunity for filing two unsworn pleadings—an information and a motion for an arrest warrant, because these were advocacy functions—but not for the act of personally vouching for the truthfulness of facts set forth in a document called a “Certification for Determination of Probable Cause,” because this was akin to the traditional function of a complaining witness. The Court refused to extend absolute immunity to the extent the prosecutor performed the function of a complaining witness because common law did not provide absolute immunity for this type of conduct.[67]

In Van de Kamp v. Goldstein,[68] the Supreme Court unanimously held that absolute prosecutorial immunity protected a District Attorney and his Chief Deputy from monetary liability on a § 1983 wrongful conviction claim based upon allegations that they failed to adequately train and supervise prosecutors in their office on their Brady[69] obligations concerning impeachment material.

Thomas Goldstein alleged in his § 1983 complaint that the Los Angeles prosecutors’ failure to disclose vital impeachment evidence caused his wrongful homicide conviction. He alleged that in 1980 he was convicted of murder:

that this conviction depended in critical part upon the testimony of Edward Floyd Fink, a jailhouse informant; that Fink’s testimony was unreliable and false; that Fink had previously received reduced sentences for providing prosecutors with favorable testimony in other cases; that at least some prosecutors in the Los Angeles County District Attorney’s Office knew about the favorable treatment; that the office had not provided Goldstein’s attorney with the information; and that . . . the prosecutor’s failure to provide Goldstein’s attorney with this potential impeachment information had led to his erroneous conviction.[70]

The Court recognized that prosecutorial immunity allows prosecutors to carry out their advocacy duties independently, without looking over their shoulder fearing monetary liability, and to prevent deflection of prosecutorial energies to the defense of claims for damages.[71]

Van de Kamp also acknowledged, however, that prosecutorial immunity does not extend to a prosecutor’s conduct not intimately related to the judicial process. The Court stated:

In the years since Imbler, we have held that absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding [Burns v. Reed, 500 U.S. 478, 492 (1991)], or appears in court to present evidence in support of a search warrant application [Kalina v. Fletcher, 522 U.S. 118, 126 (1997)] . . . [but not] when a prosecutor gives advice to police during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U.S. 259, 277 (1993), or when a prosecutor acts as a complaining witness in support of a warrant application, Kalina, supra, at 132 (Scalia, J., concurring). This case, unlike these earlier cases, requires us to consider how immunity applies where a prosecutor is engaged in certain administrative activities.[72]

The Court agreed with Goldstein that his claims attacked the district attorney “office’s administrative procedures.”[73] Nevertheless, assuming that the district attorney and his chief deputy had “certain” due process “obligations as to training, supervision, or information-system management,” the Court held “that prosecutors involved in such supervision or training or information-system management enjoy absolute immunity from the kind of legal claims at issue here.”[74] It reasoned that prosecutorial immunity was applicable because, even though the complaint attacked administrative actions, these actions were intimately connected to the criminal prosecutions against Goldstein. The Court put it this way:

Here, unlike with other claims related to administrative decisions, an individual prosecutor’s error in the plaintiff’s specific criminal trial constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties concerning, for example, workplace hiring, payroll administration, the maintenance of physical facilities, and the like. Moreover, the types of activities on which Goldstein’s claims focus necessarily require legal knowledge and the exercise of related discretion, e.g., in determining what information should be included in the training or the supervision or the information-system management.[75]

Further, Van de Kamp ruled that the fact that the defendants’ general supervisory, training, and information management actions were at issue, rather than supervision of a particular prosecution, was not critical.

That difference does not preclude an intimate connection between prosecutorial activity and the trial process. The management tasks at issue … concern how and when to make impeachment information available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties. And, in terms of Imbler’s functional concerns, a suit charging that a supervisor made a mistake directly related to a particular trial … and a suit charging that a supervisor trained and supervised inadequately … would seem very much alike.[76]

In other words, supervisory prosecutors, like trial prosecutors, should be able to make decisions free of the fear of personal liability.

The Court made clear that it would not allow § 1983 plaintiffs’ attorneys to work an end run around prosecutorial immunity, because “[m]ost important, the ease with which a plaintiff could restyle a complaint charging a trial failure so that it becomes a complaint charging a failure of training or supervision would eviscerate Imbler.”[77]

The Court’s rationale for applying absolute immunity to the training and supervision claims also applied to the information system claim, even if that claim was even more “purely administrative” in nature. “Deciding what to include and what not to include in an information system is little different from making similar decisions in respect to training,” in that each process “requires knowledge of the law.”[78]

This type of information system would require courts to determine whether there is a need for an information system; if so, what kind of system; “and whether an appropriate system would have included Giglio-related [impeachment] information about one particular kind of trial informant.”[79] These decisions, too, are intimately associated with the judicial phase of the criminal process. “Consequently, where a § 1983 plaintiff claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself.”[80] The upshot of Van de Kamp is that characterization of a prosecutor’s actions as “administrative” will not necessarily negate prosecutorial immunity.

It may be hard to determine whether a prosecutor’s actions in the postconviction stage are sufficiently related to her advocacy function to warrant absolute immunity. In Warney v. Monroe County,[81] the Second Circuit, relying on Van de Kamp, held that a prosecutor’s delay of more than two months during postconviction proceedings in communicating the exonerating results of DNA testing to Warney’s attorney was shielded by absolute prosecutorial immunity. It noted that “the line between ‘advocacy’ and ‘investigative’ functions” is especially “vexed” in the postconviction context, with the circuits reaching apparently conflicting results.[82] The court held that a prosecutor who acts as an advocate during postconviction proceedings is protected by absolute immunity because “a prosecutor defending a post-conviction petition remains the state’s advocate in an adversarial proceeding that is an integral part of the criminal justice system,” and postconviction proceedings often involve the same kinds of legal issues and advocacy skills as the underlying criminal case.[83] It found that the prosecutor’s DNA “testing, disclosure, and even the delay in making disclosure, as well as the identification of the real killer—were integral to and subsumed in the advocacy functions being performed in connection with Warney’s post-conviction initiatives.”[84]

The decisional law thus draws some very fine distinctions between prosecutorial actions protected by absolute immunity because they resemble advocacy, and prosecutorial actions that are not protected by absolute immunity because they are investigative or administrative in nature and not sufficiently related to trial preparation, or the trial process. A useful rule of thumb is that “[t]he more distant a function is from the judicial process, the less likely absolute immunity will attach.”[85]

Social Workers. There has been substantial litigation concerning the immunity protections of social workers involved in child neglect and dependency proceedings. Courts hold that social workers who initiate, testify, or otherwise participate in the judicial aspects of these proceedings are, under the functional approach, protected by absolute immunity, while social workers engaged in executive or administrative actions may assert qualified immunity.[86] As a general observation, when qualified immunity applies, the courts typically engage in a fact-specific evaluation of the reasonableness of the social worker’s actions.

Witness Immunity[edit | edit source]

In Briscoe v. LaHue,[87] the Supreme Court held that witnesses, including police officers who testify in judicial proceedings, are protected by absolute immunity, even if the witness gave perjured testimony. It reasoned that denying absolute immunity might make some witnesses reluctant to testify or cause them to distort their testimony for fear of liability.[88] “Subjecting . . . police officers to damages liability under § 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties.”[89]

In Rehberg v. Paulk,[90] the Supreme Court extended Briscoe’s absolute witness immunity for trial testimony to witnesses who testify before the grand jury. It found that the same justifications for granting absolute immunity for trial witnesses apply to grand jury witnesses. “In both contexts, a witness’ fear of retaliatory litigation may deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony,” because in each instance perjury is subject to criminal prosecution.[91]

Rehberg also held that absolute immunity protects alleged conspiracies to give perjured testimony and witness preparation.[92] The Court reasoned that were the rule “otherwise, ‘a criminal defendant turned civil plaintiff could simply reframe a claim to attack the preparation instead of the absolutely immune actions themselves.’”[93] In fact, in the “vast majority” of claims against grand jury witnesses, the witness and prosecutor engaged in preparatory activity, such as preliminary discussions in which the witness revealed the substance of her intended testimony. The Court was concerned that failure to immunize an alleged conspiracy to give false testimony and trial preparation would make it easy for § 1983 claimants to evade absolute witness immunity.[94] The Court, however, cautioned that it was not holding or suggesting that absolute immunity extends to all of the officer’s pretestimony activity.[95]

The Court in Rehberg acknowledged that its precedent supported the conclusion that law enforcement officials who submitted affidavits in support of applications for arrest warrants were not entitled to absolute immunity because they were “complaining witnesses.” Prior to Rehberg, however, the Court had never provided a workable definition of “complaining witness.” Rehberg resolved that a grand jury witness is not a “complaining witness.”[96] At common law in 1871 a “complaining witness” referred to an individual who procured an arrest and initiated a criminal prosecution.[97] A witness who only testified before a grand jury was not considered a complaining witness. In fact, the term is a misnomer because a complaining witness need not testify at all.[98] The Court found that the plaintiff in Rehberg failed to provide a “workable standard” for determining whether a particular grand jury witness is a “complaining witness,” and held that merely testifying before the grand jury or at trial does not render the witness a complaining witness. Although a law enforcement officer who testifies before the grand jury may be an important witness who wants the grand jury to return an indictment, in fact it is almost always a prosecutor, not a grand jury witness, who decides to present the case to the grand jury.[99]

Most states that do not use the grand jury system provide a preliminary hearing. The Court in Rehberg cited, with apparent approval, appellate decisions holding that witnesses at a preliminary hearing are entitled to the same immunity granted grand jury witnesses.[100]

Rehberg does not resolve the issue of immunity to which other witnesses are entitled—for example, witnesses in civil litigation, before administrative agencies, and in arbitration proceedings.[101] One reason these issues do not arise with great frequency in § 1983 litigation is because a § 1983 defendant must have acted under color of state law. Law enforcement officers who testify pursuant to their official responsibilities clearly act under color of state law. Private witnesses clearly do not, unless they conspired with a public official.

To summarize the critical rulings in Rehberg:

  • grand jury witnesses are protected by absolute witness immunity;
  • absolute witness immunity shields not only the testimony itself, but also an alleged conspiracy to give false testimony and trial preparation;
  • via strong dictum, witnesses who testify at preliminary hearings are shielded by absolute witness immunity; and
  • although “complaining witnesses” do not enjoy absolute immunity, merely testifying before the grand jury does not render the witness a “complaining witness.”

Legislative Immunity[edit | edit source]

State and local legislators enjoy absolute immunity for their legislative acts.[102] Under the functional approach to immunity, the critical issue is whether the official was engaged in legislative activity.[103] The determination of an act’s legislative or executive character “turns on the nature of the act, rather than on the motive or intent of the official performing it.”[104] Legislative action involves the formulation of policy, whereas executive action enforces and applies the policy in particular circumstances.[105]

In Bogan v. Scott-Harris,[106] the Supreme Court held that local legislators are entitled to absolute immunity for their legislative activities.[107] The common law afforded local legislators absolute immunity and, under the functional approach, local legislators are engaged in the same types of activities as their state counterparts. The Court thus unanimously extended absolute immunity to a city council member and mayor whose challenged actions were promulgating a new city budget and signing a law that eliminated the plaintiff’s position after she complained about racial epithets in the workplace.

The decision in Bogan demonstrates (1) that an official who is not a legislative official, such as the mayor, may be protected by absolute legislative immunity if her conduct was an integral step in the legislative process;[108] and (2) that an official who engages in legislative action may be protected by absolute immunity even if the legislative acts affected only one individual.[109]

In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,[110] the Supreme Court determined that a decision by the Tahoe Regional Planning Agency (TRPA) regarding land use was a legislative act. TRPA was an agency created by the states of California and Nevada, with the approval of Congress, for the purpose of creating a regional plan for “land use, transportation, conservation, recreation, and public services.”[111] The Court held that absolute immunity applied to “the [individual] members of the TRPA acting in a legislative capacity,” even though there was no common-law immunity for such an entity, and even though all the members of the agency were appointed, not elected.

In Supreme Court of Virginia v. Consumers Union of the United States,[112] the Supreme Court determined that the justices of the Supreme Court of Virginia performed a legislative act in promulgating professional responsibility rules for attorneys.[113] The Court stated that the Virginia court had exercised “the State’s entire legislative power with respect to regulating the Bar, and its members are the State’s legislators for the purpose of issuing” the rules.[114] By focusing on the action performed, not the job description of the actor, the Court emphasized the functional nature of absolute immunity.

Unlike most common-law immunity, legislative immunity is not limited to monetary relief; it also encompasses injunctive and declaratory relief.[115] The rationale is that claims for injunctive and declaratory relief may divert legislative officials from their legislative function, and delay and disrupt the legislative process.[116]

References[edit | edit source]

  1. Rehberg v. Paulk, 132 S. Ct. 1497, 1502 (2012).
  2. Id. at 1503 (Court has granted absolute immunity to legislators and judges for actions within legitimate scope of their authority, “prosecutors in their role as advocates, and the giving of testimony by witnesses at trial,” and “found no absolute immunity for the acts of the chief executive officer of a State, the senior and subordinate officers of a State’s National Guard, the president of a state university, school board members, the superintendent of a state hospital, police officers, prison officials and officers, and private co-conspirators of a judge”) (citations omitted).
  3. Id. at 1502 (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)).
  4. Id. at 1503. “[T]he Court has not suggested that § 1983 is simply a federalized amalgamation of pre-existing common-law claims.” Id. at 1504.
  5. Id. at 1503–05.
  6. Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). See also Rehberg, 132 S. Ct. at 1503.
  7. See Forrester, 484 U.S. 219.
  8. 131 S. Ct. 2074 (2011) (Bivens action).
  9. Id. at 2085.
  10. Mireles v. Waco, 502 U.S. 9, 11–12 (1991); Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). See also Pierson v. Ray, 386 U.S. 547, 553–54 (1967); Bradley v. Fisher, 80 U.S. 335, 347 (1872).
  11. Stump, 435 U.S. at 356–57 (quoting Bradley, 80 U.S. at 351).
  12. Id. at 356. See, e.g., Gross v. Bell, 585 F.3d 72, 84–85 (2d Cir. 2009) (judge’s erroneous assumption that he had personal jurisdiction did not deprive him of absolute immunity because he did not act in clear absence of all jurisdiction).
  13. Mireles, 502 U.S. at 12 (judge who ordered bailiff to use excessive force to bring attorney to courtroom performed judicial act); Stump, 435 U.S. at 362 (acts are judicial even though informal and irregular, e.g., no docket number, no filing with clerk’s office, and no notice to minor who was subject to sterilization order). See also Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (“Whether a judge’s actions were made while acting in his judicial capacity depends on whether: (1) the act complained of constituted a normal judicial function; (2) the events occurred in the judge’s chambers or in open court; (3) the controversy involved a case pending before the judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity.”); Lowe v. Lestinger, 772 F.2d 308, 312 (7th Cir. 1985) (to determine whether act is “judicial,” courts examine (1) whether act is purely ministerial or requires exercise of discretion; (2) whether it is type of action normally performed by judge; and (3) the “expectations of the parties, i.e., whether the parties dealt with the judge as judge”). Examples of Judicial Acts: Bliven v. Hunt, 579 F.3d 204, 211–14 (2d Cir. 2009) (state court judges’ and staff attorneys’ decisions concerning amount of compensation to be paid assigned counsel protected by absolute judicial immunity; function carried out was found analogous to setting reasonable fee under fee-shifting statutes); Brookings v. Clunk, 389 F.3d 614, 622 (6th Cir. 2004) (state judge “was engaged in a judicial act in swearing out a criminal complaint against [defendant] upon learning that he had committed a crime in his court”); Barrett v. Harrington, 130 F.3d 246, 260 (6th Cir. 1997) (“a judge instigating a criminal investigation against a disgruntled litigant who has harassed her is a judicial act”); Martinez v. Winner, 771 F.2d 424, 434–35 (10th Cir. 1985) (holding that installations of courtroom cameras was a judicial act; judge was both entitled and required to take steps to prevent criminal conduct in his courthouse). Examples of Nonjudicial Acts: Archie v. Lanier, 95 F.3d 438, 441 (6th Cir. 1996) (holding that “stalking and sexually assaulting a person, no matter the circumstances, do not constitute ‘judicial acts’”); Zarcone v. Perry, 572 F.2d 52, 53 (2d Cir. 1978) (ordering coffee vendor handcuffed, and subjecting him to “pseudo-official inquisition” because judge did not like his coffee, are not judicial acts), cert. denied, 439 U.S. 1072 (1979).
  14. 386 U.S. 547 (1967).
  15. Id. at 553–55.
  16. Id. at 553–54 (quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868)).
  17. 435 U.S. 349 (1978).
  18. Id. at 364.
  19. Id. at 356–57.
  20. 502 U.S. 9 (1991).
  21. Id. at 13.
  22. 484 U.S. 219 (1988).
  23. Id. at 230.
  24. Id. at 229.
  25. 466 U.S. 522 (1984).
  26. 42 U.S.C. § 1983(b).
  27. 42 U.S.C. § 1983 (2000) (as amended by Pub. L. No. 104-317, § 309(c), 110 Stat. 3847).
  28. Roth v. King, 449 F.3d 1272, 1286–87 (D.C. Cir. 2006), cert. denied, 549 U.S. 1210 (2007).
  29. 438 U.S. 478 (1978) (Bivens claim).
  30. Id. at 513.
  31. 474 U.S. 193 (1985) (Bivens claim).
  32. Id. at 204. In Wood v. Strickland, 420 U.S. 308, 320 (1975), the Court held that absolute immunity was not necessary to protect school board members’ ability to exercise discretion in deciding how to discipline students. The First Circuit, in Bettencourt v. Board of Registration, 904 F.2d 772 (1st Cir. 1990), held that in determining whether an official is entitled to absolute judicial immunity, courts should engage in the following analysis:

    First, does a Board member, like a judge, perform a traditional “adjudicatory” function, in that he decides facts, applies law, and otherwise resolves disputes on the merits (free from direct political influence)? Second, does a board member, like a judge, decide cases sufficiently controversial that, in the absence of absolute immunity, he would be subject to numerous damages actions? Third, does a Board member, like a judge, adjudicate disputes against a backdrop of multiple safeguards designed to protect [the parties’] constitutional rights?

    Id. at 783, quoted in Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006). See also Applewhite v. Briber, 506 F.3d 181, 182 (2d Cir. 2007) (state medical board members’ revocation of medical license protected by absolute immunity because, inter alia, proceeding afforded adequate procedural safeguards), cert. denied, 552 U.S. 1296 (2008); Buser v. Raymond, 476 F.3d 565, 568–71 (8th Cir. 2007) (state chief medical officer who was absent from state board of medicine and surgery disciplinary hearings was protected by absolute quasi-judicial immunity because, inter alia, hearing process contained adequate procedural safeguards and was insulated from political influence).

  33. Antoine v. Byers & Anderson, 508 U.S. 429, 436–37 (1993).
  34. Oliva v. Heller, 839 F.2d 37, 39–40 (2d Cir. 1988), cert. denied, 519 U.S. 1118 (1997). Accord Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996).
  35. See, e.g., Maness v. Dist. Court of Logan Cnty.-N. Div., 495 F.3d 943 (8th Cir. 2007) (§ 1983 complaint alleged state court clerk refused to present plaintiff’s IFP application to county circuit court judge; court held that because clerk’s conduct was ministerial rather than discretionary, claim was governed by qualified rather than by absolute immunity; the clerk, however, prevailed under qualified immunity).
  36. Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). See also Van de Kamp v. Goldstein, 555 U.S. 335 (2009).
  37. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
  38. See, e.g., Hart v. Hodges, 587 F.3d 1288 (11th Cir. 2009) (prosecutor protected by absolute immunity even for actions in violation of state court order), cert. denied, 130 S. Ct. 3389 (2010).
  39. Shmueli v. City of N.Y., 424 F.3d 231, 237 (2d Cir. 2005) (citing Bernard v. Cnty. of Suffolk, 356 F.3d 495 (2d Cir. 2004)).
  40. Reasonover v. St. Louis Cnty., 447 F.3d 569, 580 (8th Cir. 2006).
  41. 424 U.S. 409 (1976).
  42. Id. at 431.
  43. Id.
  44. Id. at 430–31.
  45. See, e.g., Simon v. City of N.Y., 727 F.3d 167, 171–74 (2d Cir. 2013) (although prosecutor’s application for material witness warrant is protected by absolute immunity, prosecutor’s participation in execution of warrant is governed by qualified immunity), cert. denied, 134 S. Ct. 1934 (2014); Slater v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012) (decision by prosecutor and other officials not to extradite or to request only limited extradition protected by absolute immunity); Giraldo v. Kessler, 694 F.3d 161, 167 (2d Cir. 2012) (prosecutors who detained and conducted lengthy interview of female victim of domestic abuse incident following arrest of boyfriend protected by absolute prosecutorial immunity; interview was integral part of advocacy functions, namely, making decisions concerning, e.g., pursuit of charges, arraignment, and bail); Lacey v. Maricopa Cnty., 693 F.3d 896, 914, 928–34 (9th Cir. 2012) (en banc) (county attorney’s appointment of special prosecutor protected by absolute prosecutorial immunity; but special prosecutor’s ordering warrantless arrest not protected by absolute immunity because he acted outside role of advocate); Koubriti v. Convertino, 593 F.3d 459, 467–69 (6th Cir. 2010) (Bivens action) (Brady claims based on allegations prosecutor directed FBI agent not to record witness interviews defeated by absolute prosecutorial immunity); Warney v. Monroe Cnty., 587 F.3d 113, 120–26 (2d Cir. 2009), cert. denied, 131 S. Ct. 82 (2010) (prosecutor’s delay during postconviction proceedings in disclosing exculpatory evidence to defense); Cady v. Arenac Cnty., 574 F.3d 334, 341 (6th Cir. 2009) (prosecutor who enters into release dismissal agreement protected by absolute prosecutorial immunity: entering into such an agreement with criminal defendant is one way prosecutor may resolve case in his role as advocate for state); Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 750–51 (9th Cir. 2009) (prosecutor’s parole recommendation protected by absolute prosecutorial immunity defense because “parole decisions are a continuation of the sentencing process”). Although a § 1983 malicious prosecution claim against a prosecutor would be barred by absolute prosecutorial immunity, it may be asserted against a law enforcement officer who influenced a prosecutor to initiate a prosecution. Hartman v. Moore, 547 U.S. 250, 265–66 (2006).
  46. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). See also Hoog-Watson v. Guadalupe Cnty., 591 F.3d 431 (5th Cir. 2009) (county attorney’s participation in search and seizure of property was investigative function not protected by absolute prosecutorial immunity); Harris v. Bornhorst, 513 F.3d 503 (6th Cir.) (prosecutor’s instruction to police to arrest suspect not protected by absolute immunity because prosecutor acted in administrative or investigative capacity), cert. denied, 554 U.S. 903 (2008).
  47. Buckley, 509 U.S. at 277–78.
  48. Id. See Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) (prosecutor who fabricated evidence prior to suspect’s arrest may be held liable under § 1983 if he participated either in indicting or trying criminal defendant).
  49. Burns v. Reed, 500 U.S. 478, 492–96 (1991).
  50. Lacey, 693 F.3d at 914.
  51. Simon v. City of N.Y., 727 F.3d 167, 171–74 (2d Cir. 2013).
  52. Buckley, 509 U.S. at 273 (“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.’” (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974))).
  53. 555 U.S. 335 (2009).
  54. 500 U.S. 478 (1991).
  55. Id. at 487.
  56. Id. at 492.
  57. Id. at 496.
  58. Id. at 491.
  59. Id. at 493.
  60. Id. at 495 (emphasis added).
  61. 509 U.S. 259 (1993).
  62. Id. at 272–77.
  63. Id. at 274–78.
  64. Id. at 274.
  65. Id. at 274 n.5.
  66. 522 U.S. 118 (1997).
  67. As discussed in the next section concerning witness immunity, complaining witnesses have not been protected by absolute immunity.
  68. 555 U.S. 335 (2009).
  69. Brady v. Maryland, 373 U.S. 83 (1963).
  70. Van de Kamp, 555 U.S. at 339.
  71. Id. at 341.
  72. Id. at 343.
  73. Id. at 344.
  74. Id.
  75. Id.
  76. Id. at 346.
  77. Id. at 347.
  78. Id. at 348.
  79. Id. at 348–49.
  80. Id. at 349.
  81. 587 F.3d 113 (2d Cir. 2009).
  82. Id. at 121.
  83. Id. at 123.
  84. Id. The Second Circuit noted that prosecutors are ethically bound to disclose exculpatory material postconviction, and in extreme cases, may be subject to criminal prosecution. Warney, 587 F.3d at 125.
  85. Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990).
  86. Following are illustrative courts of appeals decisions, by circuit, concerning social worker immunity: Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992); Doe v. Whelan, 732 F.3d 151 (2d Cir. 2013); V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010); Ernst v. Child & Youth Servs., 108 F.3d 486 (3d Cir.), cert. denied, 522 U.S. 850 (1997); White v. Chambliss, 112 F.3d 731 (4th Cir.), cert. denied, 522 U.S. 913 (1997); Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009); Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 724 F.3d 687 (6th Cir. 2013); Andrews v. Hickman Cnty., 700 F.3d 845 (6th Cir. 2012); Xiong v. Wagner, 700 F.3d 282 (7th Cir. 2012); Hutson v. Walker, 688 F.3d 477 (8th Cir. 2012); Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010); Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990), cert. denied, 499 U.S. 976 (1991); Loftus v. Clark-Moore, 690 F.3d 1200 (11th Cir. 2012); Gray v. Poole, 275 F.3d 1113 (D.C. Cir. 2002).
  87. 460 U.S. 325 (1983).
  88. Id. at 333.
  89. Id. at 343. Even prior to Rehberg v. Paulk, 132 S. Ct. 1497 (2012), discussed at pages 139–41,<span style="color:
  90. 132 S. Ct. 1497 (2012).
  91. Id. at 1505.
  92. Id. at 1506 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993) (Kennedy, J., concurring in part and dissenting in part)).
  93. Id. at 1506–07.
  94. Id. at 1507 (citing Kalina, 522 U.S. at 131; Malley, 475 U.S. at 340–41).
  95. Id. at 1507 n.1. For example, only qualified immunity is accorded law enforcement officials who falsify affidavits or fabricate evidence concerning an unresolved crime. Id. The Second Circuit held that Rehberg did not preclude use of grand jury testimony to impeach the credibility of the defendant law enforcement officer. Marshall v. Randall, 719 F.3d 113, 115–18 (2d Cir. 2013).
  96. Rehberg, 132 S. Ct. at 1507–08.
  97. Id. at 1507.
  98. Id.
  99. Id. at 1508.
  100. Id. at 1510 (citing Brice v. Nkaru, 220 F.3d 233, 239 n.6 (4th Cir. 2000); Curtis v. Bembenek, 48 F.3d 281, 284–85 (7th Cir. 1995)).
  101. See, e.g., Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008) (absolute immunity protected witness who testified in arbitration proceeding with procedural safeguards nearly identical to those in judicial proceedings).
  102. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
  103. See, e.g., Bogan, 523 U.S. at 55 (city council member who introduced budget eliminating plaintiff’s employment position and mayor who signed bill into law protected by absolute immunity); Sup. Ct. of Va. v. Consumers Union of the U.S., 446 U.S. 719, 734 (1980) (state judges’ promulgation of attorney professional responsibility rules was protected by absolute immunity); Tenney, 341 U.S. at 377 (legislators who carried out a legislative investigation were protected by absolute immunity because “investigations, whether by standing or special committees, are an established part of representative government”).
  104. Bogan, 523 U.S. at 54. See also Torres-Rivera v. Calderon-Serra, 412 F.3d 205, 213–14 (1st Cir. 2005) (governor’s signing of bill into law protected by absolute immunity regardless of motive or intent).
  105. See 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 9.08[B][5] (4th ed. 2014).
  106. 523 U.S. 44 (1998).
  107. Id. at 48–49 (noting absolute legislative immunity “fully applicable to local legislators”).
  108. Id. at 55.
  109. Id.
  110. 440 U.S. 391 (1979).
  111. Id. at 394.
  112. 446 U.S. 719 (1980).
  113. Id. at 731–34.
  114. Id. at 734.
  115. Id. at 732; Scott v. Taylor, 405 F.3d 1251, 1257 (11th Cir. 2005); Star Distrib. Ltd. v. Marino, 613 F.2d 4, 6 (2d Cir. 1980).
  116. Star, 613 F.2d at 7 (relying on Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503 (1974)).