United States Court of Appeals
For the First Circuit
No. 02-2218
WALTER J. POWELL,
Plaintiff, Appellee,
v.
KATHLEEN ALEXANDER,
Defendant, Appellant,
CITY OF PITTSFIELD, EDWARD M. REILLY,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Lynch, and Lipez, Circuit Judges.
Kathleen Alexander, with whom Thomas C. Foley was on brief,
for appellant.
David P. Hoose, with whom Howard S. Sasson and Katz, Sasson,
Hoose, & Turnbull were on brief, for appellee.
November 24, 2004
LIPEZ, Circuit Judge. In response to a judgment entered
pursuant to 42 U.S.C. § 1983, defendant Kathleen Alexander, former
City Solicitor of Pittsfield, Massachusetts, appeals from the
district court's $10,000 punitive damages award against her.
First, Alexander argues that the court's specific factual
determinations underlying the award of punitive damages are clearly
erroneous and that the evidence in its totality does not meet the
legal standard for such an award. Second, Alexander argues that
punitive damages are unavailable against her in any event because
neither Powell's complaint nor the course of subsequent proceedings
adequately put her on notice that she was being sued in her
individual capacity and was therefore subject to personal liability
for punitive damages.
After considering the general principles authorizing
punitive damages in a § 1983 case, we reject Alexander’s argument
that the district court’s award was incompatible with those
principles. We next consider a circuit split on the appropriate
test for determining adequate notice of the capacity in which a
governmental official is sued, and join the majority of circuits in
adopting the "course of proceedings" test. Applying that test, we
reject Alexander's lack of notice claim and affirm the district
court's award of punitive damages against her.
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I.
In 1991, Walter Powell, an African-American police
officer, filed several state and federal actions against the City
of Pittsfield, the Acting Chief of Police, and the former Mayor,
among others, for impermissible race discrimination leading to his
termination from the police force. In September 1993, City
Solicitor Kathleen Alexander entered into a settlement agreement on
the City's behalf. The City agreed to pay Powell $81,000 and to
reinstate him as a police officer "conditioned upon" his
fulfillment of certain requirements, including "re-training" and
"undergoing a complete physical . . . examination." In return,
Powell agreed to dismiss the actions, which had generated negative
publicity for the City and fomented discord among members of the
police department.
Instead of closing the book on a contentious period in
City affairs, the signing of the settlement agreement marked the
beginning of a new and even longer dispute. Indeed, nearly three
years would pass before Powell returned to active duty as a
Pittsfield police officer. As a result of that protracted struggle
for the reinstatement contemplated by the settlement agreement,
Powell filed the instant suit in federal district court in
September 1997 against City Solicitor Alexander, the Mayor, the
Chief of Police, the City Physician, and the City of Pittsfield for
impeding and conspiring to impede his reinstatement to the City's
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police force in retaliation for his exercise of his constitutional
right to petition the courts for redress.1 Powell alleged that,
far from cooperating with his efforts at reinstatement, the
defendants had engaged in a concerted campaign to prevent or stall
his return to the police force -- first by exploiting the
possibility that his health was impaired by Hepatitis C infection,
and then by selectively and belatedly enforcing a local ordinance
barring police officers from holding outside employment2 -- because
he had filed the 1991 civil rights actions.
After a seven-day bench trial, the district court awarded
judgment for Powell on all counts in an 87-page written decision
containing 123 separately detailed findings of fact.3 The district
1
None of the defendants named in the 1997 lawsuit, save the
City of Pittsfield, was a party to the original 1991 lawsuit.
Powell also alleged that the City had committed a breach of
contract by failing to comply with the settlement agreement and had
violated his rights under Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794. Defendants Dr. Gordon T. Bird and Police
Chief Gerald Lee were granted summary judgment on all claims
against them in 2001, while Powell's claims under 42 U.S.C. §§ 1981
and 1983 survived summary judgment to the extent that they alleged
retaliation for his exercise of his civil rights. See Powell v.
City of Pittsfield, 143 F. Supp. 2d 94 (D. Mass. 2001). Powell's
claims of retaliatory race discrimination in violation of 42 U.S.C.
§ 1981 against the remaining defendants were voluntarily dismissed
before trial.
2
Seeking income during the reinstatement process, Powell had
started a taxi/limousine service.
3
The district court held the City liable for violation of
Section 504 of the Rehabilitation Act, breach of contract, and
violation of 42 U.S.C. § 1983, and held the Mayor and City
Solicitor Alexander liable under 42 U.S.C. §§ 1983 and 1985(2) for
retaliation and conspiracy to retaliate against Powell for his
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court found that, "[f]ollowing the settlement, the defendants began
a campaign of obstruction, choreographed by the City Solicitor,
designed to pressure or manipulate Powell into abandoning his plan
to return to the police force." Powell v. City of Pittsfield, 221
F. Supp. 2d 119, 121 (D. Mass. 2002). Moreover, the court stated
that while "Alexander may have seen herself as a vigorous advocate
representing the interests of the Pittsfield police
department, . . . her actions were especially unworthy of a City
Solicitor." Id. at 152-53. The court awarded punitive damages in
the amount of $10,000 against Alexander, who now challenges that
award on appeal.
II.
On appeal from a bench trial, we review a district
court's factual findings for clear error and its legal conclusions
de novo. See Fed. R. Civ. P. 52(a); Cariglia v. Hertz Equip.
Rental Corp., 363 F.3d 77, 82 (1st Cir. 2004). Under the clear
error standard of review, an appellate court will not disturb the
factual determinations of a trial court unless, "after a searching
review of the entire record, the court of appeals 'forms a strong,
unyielding belief that a mistake has been made.'" Fed. Refinance
Co. v. Klock, 352 F.3d 16, 27 (1st Cir. 2003) (quoting Cumpiano v.
exercise of his civil rights. Powell v. City of Pittsfield, 221 F.
Supp. 2d 119 (D. Mass. 2002). Only Alexander appeals from the
court's decision, and only with respect to its award of punitive
damages.
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Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)). The
trial judge "sees and hears the witnesses at first hand and comes
to appreciate the nuances of the litigation in a way which
appellate courts cannot hope to replicate." Cumpiano, 902 F.2d at
152.
A. The District Court's Factual Findings Supporting Punitive
Damages
1. Three Letters and Two Notes
Alexander challenges as clearly erroneous the factual
determinations underpinning the district court's conclusion that
her course of conduct in delaying Powell's reinstatement was, taken
as a whole, "both outrageous and reprehensible," Powell, 221 F.
Supp. 2d at 152. She also challenges any finding that her conduct
was motivated by wrongful intent or involved "reckless or callous
indifference," Smith v. Wade, 461 U.S. 30, 56 (1983), to
plaintiff's federal rights. Crucial to the court's
characterization of Alexander's "course of behavior" were three
letters and two notes to which the district court adverted in its
explanation of its assessment of punitive damages. We briefly
describe here the relevant pieces of correspondence, the notes, and
their context.
a. Dr. Bird's December 21, 1993, Letter
Because he had been off the police force for three years
following his termination and during settlement negotiations,
Powell was required as a condition of reinstatement to undergo a
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routine physical examination and to attend the police academy as
though he were a new recruit. In October 1993, a physical
examination by the city physician, Dr. Bird, indicated that while
Powell was outwardly physically fit and healthy, he had slightly
abnormal liver function. Later tests revealed that Powell had
Hepatitis C, which may cause no physical symptoms and has a low
risk of transmissibility through casual contact, but which can lead
to serious liver disease.
On December 21, 1993, Dr. Bird wrote a letter to the
City's personnel department and sent a copy to Powell in which he
gave his opinion on Powell's physical fitness for reinstatement.
The letter stated:
After review of all of Mr. Powell's currently
available laboratory work, his consultation
[with a specialist], and the Physical
Standards for Public Safety Positions used by
the City, I feel that Mr. Powell has a
condition which would disqualify him for
appointment to a public safety position.
Listed as a disqualifying condition is active
hepatitis. As it is my feeling, and that of
the consultant, that Mr. Powell has chronic
active hepatitis, I feel he would currently be
disqualified.
The "standards" for "appointment to a public safety position" to
which Dr. Bird referred were state guidelines used to determine
candidates' eligibility for admission to "entry-level police
officer training programs," namely, the police academy. Dr. Bird
apparently assumed that the police academy admission guidelines
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also governed qualification for employment to the police force.4
Dr. Bird's letter concluded: "If the City concurs in this
disqualification, I understand that [Powell] has the right of
appeal to a medical review board. Other options would be at the
discretion of the appointing authority."
Alexander received a copy of Dr. Bird's letter from
personnel department staff. Instead of either concurring in or
overriding Dr. Bird's determination that Powell could not return to
work, she requested that Powell undergo a liver biopsy before a
final reinstatement decision could be made.
b. Alexander's May 12, 1994, Letter
Although Powell initially disputed that he had Hepatitis
C, he did have a liver biopsy in March 1994 at a Veterans Affairs
medical center in New York. In May 1994 his attorney forwarded a
letter from Powell's physician to Alexander, which stated that
"despite some laboratory evidence of mild liver function test
abnormality, [Powell was] looking healthy and fit for his job as a
police officer" and was "totally asymptomatic for acute or chronic
liver disease."
On May 12, 1994, Alexander responded by letter to
Powell's attorney that the City needed more information so that Dr.
4
Dr. Bird testified at trial that he concluded Powell was
disqualified "primarily" because of the police academy admission
guidelines, although he harbored additional concerns that even a
low risk of infectivity through the blood could affect Powell's
employability if he were injured in the line of duty.
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Bird could review the biopsy results independently. Alexander
wrote:
[I]f the City [P]hysician is satisfied that
Mr. Powell may safely return to work and
perform his duties based upon [the additional
biopsy data], [the Mayor] will then, assuming
all other conditions are met, make a
determination, with [the Chief of Police], in
regard to reinstatement.
Powell promptly signed a release allowing the biopsy results to be
transferred from the Veterans Affairs medical center to Dr. Bird
for analysis.
c. Dr. Bird's July 5, 1994, Letter
On July 5, 1994, Dr. Bird wrote a letter to Alexander,
which the court found to "constitute[], perhaps, the most
significant piece of evidence in this case." Powell, 221 F. Supp.
2d at 132. The letter began: "I stated in a letter 12/21/93 that
I felt [Powell] would be disqualified due to the presence of
chronic active hepatitis." Dr. Bird then gave a detailed
description of the liver biopsy results sent to him by Powell's
doctor. Dr. Bird next related that he had consulted medical
experts at the University of Massachusetts and the Centers for
Disease Control, "seeking any information on guidelines for this
condition," and discovered that no existing guidelines barred a
person infected with Hepatitis C from working as a police officer.
Dr. Bird stated: "The consensus was, given [Powell's] current state
of health, that there would be currently no reason to limit his
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physical activity." Dr. Bird's letter concluded: "Now that the
exact nature and stage of Mr. Powell's chronic liver disease is
known, I feel that he does not have a condition which would
disqualify him from returning to the police force." Dr. Bird's
copy of the letter, which he kept in his business files, was
accompanied by a sticky note that read, "Confidential per request
[of] K. Alexander." Powell remained unaware of the letter's
existence until it surfaced during discovery in the instant
lawsuit. At trial, Alexander denied that she had ever instructed
Dr. Bird to suppress the letter.
d. Alexander's Handwritten Notes
As part of her routine business practice, Alexander kept
handwritten, contemporaneous notes of her telephone conversations
with various individuals involved in Powell's reinstatement,
including the Mayor, Dr. Bird, and Powell's attorneys. On April 4,
1994, Alexander consulted a colleague versed in civil service law.
Her notes of that phone conversation contain references to the
"ADA," referring to the Americans with Disabilities Act of 1990,
Pub. L. No. 101-336, § 2, 104 Stat. 327 (1990) ("ADA"); the
possibility of "a major ADA problem"; and the availability of
"punitive dmgs?," meaning punitive damages.5 A later note dated
May 10, 1994, two days before Alexander wrote her letter of May 12,
5
See 42 U.S.C. § 1981a(a)(2) (authorizing punitive damages in
certain actions brought under the ADA).
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1994, to Powell’s attorney, refers to the ADA’s requirement of
reasonable accommodations to qualified individuals with
disabilities.6 The district court treated these notes as evidence
of Alexander's awareness that her conduct in delaying Powell's
reinstatement would violate federal law.7
2. Factual Findings on Alexander's "Particularly
Egregious Misconduct"
In light of this chronology of events and after assessing
the credibility of the witnesses who testified at trial, the court
determined that Alexander persisted in "particularly egregious
misconduct," Powell, 221 F. Supp. 2d at 122, and that she "engaged
in a course of behavior" that the court "deem[ed] to be 'outrageous
and worthy of condemnation.'" Id. at 152 (citation omitted). The
court then listed several examples of Alexander's egregious acts
and omissions, "to name just a few," id., each of which Alexander
alleges was a clearly erroneous factual determination. We also
examine whether the findings, if supportable, amount to outrageous
conduct in their cumulative effect.
6
See 42 U.S.C. § 12112(b)(5)(A) (defining impermissible
"discrimination" to include failure to make "reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless [the] covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of [its] business").
7
As we discuss below in Part II.B.3, the court erred in basing
one of its legal conclusions supporting the availability of
punitive damages under § 1983 on these notes.
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a. Alexander's Failure to Forward Dr. Bird's Original
Report of December 21, 1993, to the Medical Review
Board
The district court found that Alexander failed to send
Dr. Bird's first letter, which refers to "a medical review board,"
to that board, "in violation of her legal duties." Id. The
medical review board, a body of the Massachusetts Criminal Justice
Training Council, was authorized to grant exceptions allowing
candidates with medical conditions to enroll in the police
academy.8 Alexander argues that she had no such legal duties
because the City's personnel department handled all such matters.
The court stated that "Pittsfield's personnel department
was unstaffed, and Alexander was fulfilling its responsibilities
with regard to Powell." Id. at 127. Alexander counters that the
department was "staffed and operating" at the time Powell sought
reinstatement. The record shows that the personnel department was
staffed but that it had no director at the relevant times.
Personnel staff apparently gave Alexander a copy of Dr. Bird's
letter because she was overseeing Powell's reinstatement under the
settlement agreement.
8
The Council's "Revised Interim Medical Guidelines and
Procedures" provide: "The Medical Review Board may except
candidates from these Medical Guidelines, in whole or in part,
consistent with the principle of a Bona Fide Occupational
Qualification (BFOQ) and the Reasonable Accommodation provisions"
of the applicable Massachusetts state anti-discrimination statute.
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This single misstatement by the district court that the
personnel department was "unstaffed" is immaterial to the court's
conclusion that Alexander should have referred Powell's case to the
medical review board. Alexander undertook to coordinate Powell's
reinstatement under the terms of the settlement, as evidenced by
the voluminous correspondence documenting her central role in
communicating various conditions of reinstatement to Powell's
attorneys. The court was entitled to infer that Alexander had
indeed taken control of the reinstatement process instead of
leaving Powell's reinstatement for the City's personnel staff to
handle according to routine procedures.
Although Dr. Bird forwarded to Alexander a copy of the
police academy admission guidelines, including information about
the medical review board, she stated at trial that she did not
familiarize herself with them. Alexander asserts that, in contrast
to Dr. Bird, she never viewed Powell's eligibility for admission to
the police academy as determinative of his eligibility for
reinstatement to the police force. Rather, "active hepatitis"
might or might not be a bar to employment as a police officer,
depending on the circumstances. Thus, Alexander maintains, any
action by the medical review board permitting Powell's admission to
the academy still would not have assuaged the City's independent
concerns about his qualification for reinstatement: Only the liver
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biopsy could have provided the information required to assess
Powell's ability to return to the police force.9
Regardless of the City's ultimate decision under its own
medical standards, the court found that Alexander's
"failure . . . to submit the necessary documentation" to the
medical review board "deprived Powell of the opportunity to obtain
[an] exception [for admission to the police academy], which in view
of his robust health and lack of symptoms he would very probably
have received." Id. at 127. Alexander's "inaction left Powell in
limbo." Id. Instead of being allowed to satisfy one of the
prerequisites for his return to the police force even as his biopsy
9
At trial, the parties disputed the City's need for liver
biopsy results in order to make a reinstatement determination. The
court found that Powell's expert medical witness "credibly opined
that requiring a liver biopsy for purposes of assessing whether
Powell was able to return to work was not reasonable . . . . [A]
liver biopsy was proper solely for purposes of determining whether
treatment might be appropriate, but the procedure would have told
Powell's physicians 'nothing about employability.'" Powell, 221 F.
Supp. 2d at 126-27. Alexander testified that she requested the
biopsy for the purpose of assessing the potential consequences of
treatment for Hepatitis C on Powell's physical condition, and that
she did not receive a doctor's opinion on this point until 1996.
At that time Powell submitted yet another doctor's opinion stating
not only that Powell was physically fit but also that treatment for
Hepatitis C "was mentioned to Mr. Powell and will be addressed in
the future with him . . . [but] at this time . . . would not seem
to be an obstacle to his returning to work." The court found that
Alexander "suggest[ed] for the first time" on re-cross-examination
at trial "that concerns about Powell's treatment had delayed his
return to work. This testimony was not credible." Id. at 139.
Powell also argued that the City's purported concern about the
possible effects of treatment on his performance as a police
officer constituted impermissible discrimination on the basis of
disability.
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and the City's final determination on reinstatement were pending,
Powell "continued in his ambiguous status, neither qualified nor
disqualified for reinstatement, until 1996." Id. The court
committed no clear error in determining that Alexander should have
ensured that Powell's case reached the medical review board.
b. Alexander's Deliberate Suppression of Dr. Bird's
July 5, 1994, Letter and Pressure on Dr. Bird to
Suppress its Contents
The court found that "Alexander deliberately hid" Dr.
Bird's second letter of July 5, 1994, "which cleared Powell to go
back to work, and pressured Dr. Bird to the point where he declined
to communicate candidly with a patient of his who was suffering
from a serious disease." Id. at 152. Based on testimony by the
Mayor, Dr. Bird, and one of Powell's former attorneys,10 the court
found that the letter's existence was known only to Dr. Bird and to
Alexander until its compelled disclosure during discovery. The
court also credited Dr. Bird's testimony at trial that Alexander
had told him to keep the letter confidential and to avoid
communicating directly with Powell. Although "Alexander
denied . . . ever asking Dr. Bird to keep the letter confidential,"
the court found that she had testified "without credibility" and
had "conceded that she never told anyone else about the letter."
Id. at 132.
10
Powell was represented by new counsel at trial, and one of
his former attorneys was permitted to testify regarding his
communications with Alexander.
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Alexander stresses that she did not forward Dr. Bird's
July 5, 1994, letter to the Mayor or to anyone else because she did
not consider the letter to be a "report" reflecting the "City
[P]hysician['s] satisf[action] that Mr. Powell may safely return to
work and perform his duties" as required by her May 12, 1994,
letter to Powell's attorney. She argues that Dr. Bird's second
letter did not, in fact, "clear[] Powell to go back to work."
Rather, Alexander interprets Dr. Bird's second letter as merely
reflecting his own realization that Powell's disqualification for
admission to the police academy did not automatically bar him from
eventual employment as a police officer after all, a conclusion
Alexander had reached long before in refusing to declare Powell
qualified or disqualified for reinstatement (regardless of his
eligibility for police academy admission) until he had a liver
biopsy.
The court found Alexander's interpretation of Dr. Bird's
July 5, 1994, letter untenable and her testimony that "she did not
view the letter 'as significant' . . . because in her mind, it
'wasn't a report'" lacking in credibility. Id. Instead, after
analyzing the text of both of Dr. Bird's letters and the trial
testimony about the circumstances in which those letters were
written, the court permissibly concluded that Dr. Bird's July 5,
1994, letter was indeed a "report," that it provided all the
information Alexander purported to require in her May 12, 1994,
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letter, and that it should have cleared the way for Powell's
reinstatement as early as July 1994.
The district court had more than sufficient evidence
before it from which to infer not only that Alexander's
idiosyncratic interpretation of Dr. Bird's letter was objectively
unreasonable, but also that she "obviously repressed [the letter]
as part of the effort to forestall Powell's reinstatement and to
avoid performing on [her] promise to permit reinstatement 'if the
City [P]hysician is satisfied.'" Id. This finding was not clearly
erroneous.
c. Alexander's Efforts to "Mask her Interference" and
the Alleged Agreement to "Hold off" on Dr. Bird's
Report
The district court found that "Alexander methodically
kept a stream of letters going to Powell and his counsel in an
effort to mask her interference with his reinstatement, and went so
far as to manufacture a nonexistent agreement that Dr. Bird 'hold
off' on his report on Powell's health." Id. at 152. Alexander
maintains that Powell's attorney told her in a phone conversation
on July 13, 1994, shortly after her receipt of Dr. Bird's July 5,
1994, letter, that Powell was now seeking disability retirement
instead of reinstatement and that Dr. Bird could therefore "hold
off" on writing a report based on the biopsy results regarding
Powell's fitness for reinstatement. Alexander asserts that Dr.
Bird was free at any time to send a copy of his July 5, 1994,
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letter (which she did not consider to be a "report") to Powell, and
that Dr. Bird misunderstood her direction to "hold off" on writing
a true "report" (while Powell pursued disability retirement) as a
direction to keep the letter under wraps. At trial, Powell's
former attorney denied that he agreed to delay Dr. Bird's report
and testified that it was Alexander who suggested that Powell apply
for disability retirement. The court did not credit Alexander's
testimony to the contrary.
In July 1994, unaware that Dr. Bird had just written to
Alexander to state that he felt "that [Powell] does not have a
condition which would disqualify him from returning to the police
force," Powell sought Dr. Bird's signature on his application for
disability retirement, based on Dr. Bird's original December 21,
1993, opinion that Powell was disqualified from employment on the
police force. On July 28, 1994, Dr. Bird wrote to Powell,
declining to sign the form and stating that Powell's "treating
physician" should sign the form instead. In November 1994, after
Powell approached him a second time to sign his disability form,
Dr. Bird wrote to Powell that "[a]fter discussion of your request
with the City Solicitor, I have been advised that it would be
ethically inappropriate as the city physician for me to give you
directly any statement of disability or complete the application"
because "you are not under my professional care, nor have I been
treating you." Dr. Bird testified that he would also have told
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Powell that he did not consider him to be disabled if he had not
been told to keep the information secret. Powell's application for
disability retirement eventually stalled because he had not accrued
the necessary number of service years on the police force.
During this same period, from September 1994 to January
1995, Alexander wrote monthly letters to Powell's attorneys seeking
information on "the status of [his] application for [disability]
retirement" and to discern "what, if anything, the City could do to
help with closure of this matter." Each of these letters fails to
mention Dr. Bird's change of opinion regarding Powell's fitness to
work. The court specifically rejected the credibility of
Alexander's trial testimony on cross-examination that it never
occurred to her that Powell might have abandoned his disability
retirement application if he had been aware of Dr. Bird's
conclusions about his ability to return to the police force as
stated in the July 5, 1994, letter.
The court also found that Alexander's September 20, 1994,
letter to Powell's attorney, the first in a "stream of letters"
regarding Powell's disability retirement application status, id.,
contained
what can only be characterized as the
outrageously misleading statement that at the
time of settlement, "no one anticipated that
[Powell] would have a health problem which
would impede the reinstatement." This
statement was made at a time when [Alexander]
was perfectly aware of the unanimous medical
opinion, including the considered view of the
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City's own physician, that no health problem
impeded Powell's reinstatement.
Id. at 135 (first alteration in original). In later correspondence
with Powell's attorneys throughout the next year, Alexander
continued to treat his medical condition as an unresolved issue.
Given this evidence, the court committed no clear error
in concluding that:
Alexander's failure to disclose . . . to
[Powell's attorney] in her conversations with
him that, as of July 5, 1994, she had in her
possession unambiguous documentation of the
City Physician's opinion that Powell was fit
to return to work constitutes egregious
misconduct and reflects the defendants' level
of determination to retaliate against Powell
for his earlier lawsuit by blocking his
reinstatement by whatever means.
Id. at 133.
d. Omission of the Letter from Submissions to the
Court and Efforts to Involve Dr. Bird in Those
Omissions
The district court found that Alexander intentionally
omitted any reference to Dr. Bird's July 5, 1994, letter from the
affidavits and numerous exhibits she submitted to the court in 1996
in response to Powell's motion to vacate the settlement agreement.
"Worse," the court found, "Alexander forced a kind of fraud upon
Dr. Bird when she left any reference to the letter out of his
affidavit, which she drafted." Id. at 152. As a result, the
letter's existence remained unknown to anyone except Alexander and
Dr. Bird until it materialized more than one year later during
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discovery in Powell's 1997 lawsuit. The court thus found that
"Alexander's deliberate suppression of the letter distorted the
record submitted to the court in an effort to avoid disclosure of
the defendants' bad faith." Id. at 138.
Alexander argues that she submitted the affidavits merely
to document the City's timely responses to Powell's reinstatement
requests and to show that any delay in Powell's reinstatement was
not attributable to the City's lack of diligence but was the result
of Powell's own equivocation about whether to pursue disability
retirement instead. Dr. Bird's July 5, 1994, letter was, in her
view, irrelevant to that showing. Yet Dr. Bird's affidavit
describes his review of Powell's health status, including the
biopsy results, in such detail that the absence of any reference to
the July 5, 1994, letter in which he reported his conclusions based
on that same review is striking.
Alexander reiterates that she simply did not view the
July 5, 1994, letter or its contents as material to Dr. Bird's
affidavit because it did not relate to the legitimate reasons for
the delay in Powell's reinstatement, namely, Powell's own failure
to satisfy the City's conditions by refusing to have a liver biopsy
and by deciding to petition for disability retirement and expand
his taxi/limousine business instead. The court refused to credit
this argument in light of Alexander's professional experience as a
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litigation attorney engaged in a dispute about Powell's employment
qualifications. Instead, the court found that
[a]ny fair presentation of the documents
pertinent to the dispute about reinstatement
and the Settlement Agreement generally must
necessarily have included the July 5th letter,
which would have confirmed the absence for
nearly two years of any impediment to Powell's
reinstatement.
Id. The court did not err in determining that the effort required
to exclude a single letter from a list of notes and other proof of
the communications between Alexander and Dr. Bird in his affidavit
constituted circumstantial evidence of deliberate omission.
The court also credited Dr. Bird's testimony that he
himself viewed the omission from the affidavit as unusual, although
he made no effort to correct it. Alexander argues that she should
not be charged with controlling Dr. Bird's submission to the court
in the form of his affidavit merely because he misunderstood her
directive to "hold off" on a "report" as meaning that he should
keep his July 5, 1994, letter confidential. She maintains that Dr.
Bird could easily have overridden her judgment that the letter had
no bearing on Powell's fulfillment of the settlement agreement's
reinstatement conditions and that he could have made the
appropriate additions to his own affidavit.11 We find no clear
11
At trial, Alexander sought to introduce into evidence a fax
cover sheet that she sent to Dr. Bird along with the draft
affidavit, inviting him to add any information he thought
pertinent. The district court excluded the fax cover sheet because
it had not been listed as a proposed trial exhibit. On appeal,
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error in the court's conclusion, based on Dr. Bird's testimony and
other evidence, that Dr. Bird deferred to Alexander's legal
expertise, as he expected her to defer to his medical opinions.
As for Alexander's own affidavit, accompanied by forty-
nine exhibits, in which she documented her efforts to cooperate
with Powell's attorneys in his reinstatement effort, the court
again was not clearly erroneous in finding that her decision to
exclude the July 5, 1994, letter of Dr. Bird's from the court
filing was deliberate, as was her decision in 1994 not to pass the
letter on to Powell's attorney in the first place.
e. Summary
In short, after a careful review of the evidence of
Alexander's overall course of behavior, we find nothing clearly
erroneous in the findings of the district court that, cumulatively,
Alexander engaged in "particularly egregious misconduct," id. at
122, that was "outrageous and worthy of condemnation." Id. at 152
(internal quotation marks omitted).
B. Availability of Punitive Damages Under 42 U.S.C. § 1983
1. General Principles
Alexander argues that the evidence before the trial
court, and the court's factual findings thereon, failed to meet the
Alexander does not challenge this ruling.
-23-
legal standard for an award of punitive damages.12 While "punitive
damages are available in a 'proper' [42 U.S.C.] § 1983 action,"
Smith v. Wade, 461 U.S. 30, 35 (1983) (citation omitted),13 such
damages are "not favored in the law and are allowed only with
caution and within normal limits," McKinnon v. Kwong Wah Rest., 83
F.3d 498, 508 (1st Cir. 1996).14 Whether a particular case arising
under § 1983 is a "proper" case for an award of punitive damages is
a question of law subject to de novo review. See Marcano-Rivera v.
Pueblo Int'l, Inc., 232 F.3d 245, 254 (1st Cir. 2000).
Punitive damages may be awarded under 42 U.S.C. § 1983
only where "the defendant's conduct is shown to be motivated by
evil motive or intent, or when it involves reckless or callous
12
Alexander also challenges as clearly erroneous the district
court's findings supporting her liability for compensatory damages
"to the extent that the district court's findings on the underlying
retaliation claim may also be said to support the punitive damages
award." We find nothing clearly erroneous in the findings required
to support the award of compensatory damages for the retaliation
claim, and we discuss here the court's analysis of Alexander's
underlying liability for deprivation of Powell's First Amendment
right only to the extent necessary to provide a context for the
court's punitive damages analysis.
13
42 U.S.C. § 1983 states, in relevant part: "Every person who,
under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress . . . . "
14
Alexander does not challenge the amount of the punitive
damages award.
-24-
indifference to the federally protected rights of others." Smith,
461 U.S. at 56. The Supreme Court has stated that the requisite
intent "at a minimum" is "recklessness in its subjective form."
Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536 (1999).15 Thus, "the
inquiry should focus on the acting party's state of mind," Romano
v. U-Haul Int'l, 233 F.3d 655, 669 (1st Cir. 2000), and the central
question is whether the defendant acted "in the face of a perceived
risk that [her] actions [would] violate federal law," Kolstad, 527
U.S. at 536; see also DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 38
(1st Cir. 2001).
We have interpreted Kolstad as distinguishing between a
defendant’s "intent to do [an] act" and her intent "to effect a
civil rights violation" as a consequence of that act. Iacobucci v.
Boulter, 193 F.3d 14, 26 (1st Cir. 1999) (citation omitted). The
Kolstad Court described several situations in the employment
discrimination context in which punitive damages may be
inappropriate even though a defendant has engaged in intentional
acts of discrimination:
In some instances, [an] employer may simply be
unaware of the relevant federal prohibition.
There will be cases, moreover, in which the
employer discriminates with the distinct
belief that its discrimination is lawful. The
underlying theory of discrimination may be
15
While Kolstad addressed a claim for punitive damages under
42 U.S.C. § 1981a, we consider "Kolstad's teachings [to be] fully
applicable to punitive damages under section 1983." Iacobucci v.
Boulter, 193 F.3d 14, 25 n.7 (1st Cir. 1999).
-25-
novel or otherwise poorly recognized, or an
employer may reasonably believe that its
discrimination satisfies a bona fide
occupational qualification defense or other
statutory exception to liability.
Id. at 536-37.16 Where the underlying liability for deprivation of
a federally protected right under § 1983 rests on a finding of
intentional conduct, then, the state of mind requirement for the
availability of punitive damages limits those damages to that
"subset of cases," id. at 534, in which a plaintiff also adduces
evidence that permits an inference that the defendant was aware of
the risk that those intentional acts would violate federal law.
2. Powell's Constitutionally Protected Right to
Petition the Courts for Redress of Grievances
As the district court recognized, "[o]ur constitutional
system gives every citizen the right to seek redress in the
courts . . . without fear that recourse to the law will make that
citizen a target for retaliation." Powell, 221 F. Supp. 2d at 121.
The First Amendment to the U.S. Constitution provides, in relevant
part: "Congress shall make no law . . . abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
16
This case does not resemble any of these situations.
Alexander did not argue at trial that her retaliation for Powell's
exercise of his First Amendment right to petition the courts was
somehow lawful or that Powell's filing of the 1991 lawsuit was
beyond the scope of the First Amendment's protection. Rather, she
contested the factual basis for a finding of retaliation in the
first instance.
-26-
grievances." For decades, the Supreme Court has consistently
recognized the right to petition all branches of the government,
including the courts, Cal. Motor Transp. Co. v. Trucking Unltd.,
404 U.S. 508, 510 (1972), for redress of grievances as "among the
most precious of the liberties safeguarded by the Bill of Rights."
United Mine Workers, Dist. 12 v. Ill. State Bar Ass'n, 389 U.S.
217, 222 (1967).17 The Supreme Court has also identified "the
purpose behind the Bill of Rights, and of the First Amendment in
particular: to protect unpopular individuals from retaliation --
and their ideas from suppression -- at the hand of an intolerant
society." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357
(1995).
Claims of retaliation for the exercise of First Amendment
rights are cognizable under § 1983. See, e.g., Mt. Healthy City
17
The right to petition the courts for redress also implicates
the First Amendment right of free speech. See United Mine Workers,
389 U.S. at 222 (rights to assemble and to petition the government
for redress of grievances "are . . . intimately connected, both in
origin and in purpose, with the other First Amendment rights of
free speech and free press. 'All these, though not identical, are
inseparable.'") (quoting Thomas v. Collins, 323 U.S. 516, 530
(1945)); NAACP v. Button, 371 U.S. 415, 429 (1965) (civil rights
"litigation is a means for achieving the lawful objectives of
equality of treatment by all government . . . . It is thus a form
of political expression . . . . And under the conditions of modern
government, litigation may well be the sole practicable avenue open
to a minority to petition for redress of grievances."); see also
Robert L. Tsai, Conceptualizing Constitutional Litigation as Anti-
Government Expression: A Speech-Centered Theory of Court Access, 51
Am. U. L. Rev. 835, 838 (2002) (advocating treatment of "an
individual's efforts to secure her constitutional rights as the
equivalent of engaging in anti-government expression").
-27-
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (school
board's refusal to renew untenured teacher's contract in
retaliation for exercise of right to free speech actionable).
"Retaliation, though it is not expressly referred to in the
Constitution, is nonetheless actionable because retaliatory actions
may tend to chill individuals' exercise of constitutional rights."
ACLU of Md., Inc. v. Wicomico County, 999 F.2d 780, 785 (4th Cir.
1993). Retaliation for the exercise of the right to petition the
courts for redress may take many forms, ranging from potential
negative treatment for the mere threat to file suit in the future,
see, e.g., Poole v. County of Otero, 271 F.3d 955, 960 (10th Cir.
2001) (recognizing retaliatory prosecution claim where police
instituted criminal charges after receiving indication of
plaintiff's intent to file civil suit), to actual economic injury
following the filing or pursuit of grievances, see, e.g, Collins v.
Nuzzo, 244 F.3d 246, 251 n.2 (1st Cir. 2001) (treating claim that
license application was denied because of applicant's exercise of
right to appeal prior denial of license renewal as "an ordinary
claim of unconstitutional retaliation for protected speech in
violation of the First Amendment"); Fishman v. Clancy, 763 F.2d
485, 486-87 (1st Cir. 1985) (attempts to terminate public school
teacher who had filed more grievances "than any other . . . teacher
had ever filed" and who had engaged in other First Amendment
activities cognizable under § 1983).
-28-
In order to prevail on a § 1983 claim of retaliation for
First Amendment activity under the legal standard enunciated in Mt.
Healthy, a plaintiff must first show "that his conduct was
constitutionally protected, and that this conduct was a
'substantial factor' or . . . a 'motivating factor'" for the
defendant's retaliatory decision. 429 U.S. at 287. The defendant
may then avoid a finding of liability by showing that "it would
have reached the same decision . . . even in the absence of the
protected conduct." Id.18
In this case, the district court concluded:
There is no question that Powell engaged in
constitutionally protected conduct by filing
the 1991 lawsuit against Pittsfield, its
officials, and police officers. Defendants
have not alleged that Powell's 1991 litigation
was "baseless" and therefore not within the
shelter of the First Amendment, see Bill
Johnson's Restaurants, Inc. v. N.L.R.B., 461
U.S. 731, 741, 76 L. Ed. 2d 277, 103 S. Ct.
2161 (1983), or otherwise unprotected.
Connick v. Myers, 461 U.S. 138, 148 n.8, 75 L.
Ed. 2d 708, 103 S. Ct. 1684 (1983) ("right to
protest racial discrimination [is] a matter
inherently of public concern"). Given the
substantial settlement obtained by the
plaintiff in 1993, any argument that the 1991
lawsuit was baseless would be frivolous.
Powell, 221 F. Supp. 2d at 140-41. The court found that Powell's
lawsuit alleging racial discrimination created hostility in the
18
We recognize that "[a] retaliatory state of mind typically
is not susceptible to proof by direct evidence." Ferranti v.
Moran, 618 F.2d 888, 892 (1st Cir. 1980) (plaintiff properly stated
claim of retaliation based on circumstantial evidence).
-29-
police department, id. at 124, which Alexander represented as City
Solicitor, and that she was aware that his return to the police
force would cause "friction." Id. The district court then
concluded that, more likely than not, Alexander and the Mayor
retaliated against Powell for his constitutionally protected
conduct because they "knew that if [he] was reinstated and
thereafter filed another lawsuit, they would have to deal with it."
Id. at 142.19
3. The District Court's Punitive Damages Analysis
In its richly detailed and carefully crafted 87-page
opinion, the court devoted slightly less than two pages at the end
of the opinion to its punitive damages analysis. This observation
is not a criticism. Rather, we make that observation to make the
important point that the relatively brief punitive damages analysis
at the end of the opinion unmistakably draws upon the compendious
factfinding and legal analysis on the claim for compensatory
damages that precedes it.
Based on Alexander's handwritten notes documenting her
phone conversation with a colleague about the ADA, the district
court concluded in part that punitive damages were authorized in
this case because "Alexander's notes reflect that she was aware
19
The court also found that Alexander failed to establish by
a preponderance of the evidence that she would have made the same
decision to delay Powell's reinstatement in the absence of his
protected conduct. See Powell, 221 F. Supp. 2d at 143.
-30-
that her actions violated federal law, and thus she 'acted in the
face of a perceived risk that [her] actions'" would lead to that
result. Id. at 152 (quoting Kolstad, 527 U.S. at 536) (alteration
in original).20 However, the "federal law" to which "Alexander's
notes" refer (the ADA) was not in fact the same federal law that
the court found Alexander to have violated (the First Amendment
right to seek redress in the courts as protected by § 1983).
Indeed, Powell brought no claim under the ADA against any of the
defendants, and only the City of Pittsfield was subject to his
claim under the related Rehabilitation Act.21 Id. at 122.
In order to recover punitive damages, a plaintiff
ordinarily must "establish[] liability for either compensatory or
nominal damages." Kerr-Selgas v. Am. Airlines, Inc., 69 F.3d 1205,
1215 (1st Cir. 1995) (plaintiff must make "a timely request for
nominal damages"). Given the absence of a claim by Powell that
Alexander violated his rights under the ADA, her subjective
awareness of the risk that she might violate Powell's rights under
20
Our review of the record having revealed no notes written by
Alexander that explicitly refer to any other federal law, we assume
that the district court referred to her notes on the ADA alone.
21
The Rehabilitation Act provides, in relevant part: "No
otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity
receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United States
Postal Service." 29 U.S.C. § 794(a). See also id. § 794(d)
(adopting standards of the ADA for application).
-31-
the ADA with her retaliatory conduct is irrelevant to the propriety
of an award of punitive damages for a § 1983 violation of a First
Amendment right. See Iacobucci, 193 F.3d at 27 (evidence tending
to show that defendant was aware of the risk of violating
plaintiff's right to be free from excessive force during arrest had
no bearing on defendant's subjective intent towards plaintiff's
right to be free from arrest without probable cause, the right
defendant actually violated under § 1983). The court's
determination that Alexander perceived the risk that her actions
would violate Powell's federally protected rights under the ADA,
therefore, does not support an award of punitive damages for
Alexander's violation of Powell's First Amendment right to petition
the courts for redress. Instead, the court had to find, explicitly
or implicitly, that Alexander's retaliatory actions manifested at
least "reckless or callous indifference to" Powell's First
Amendment right. Smith, 461 U.S. at 56. For the reasons we now
set forth, we are satisfied that the court implicitly made such a
finding, and that this finding is legally and factually
supportable.
In its punitive damages analysis, the district court also
justified its award of punitive damages because "Alexander's
actions in this case were both outrageous and reprehensible."
Powell, 221 F. Supp. 2d at 152. The court then provided a non-
exhaustive list of examples of her acts and omissions, discussed in
-32-
detail above in Part II.A.2, underlying that determination. "In
short," the district court concluded, "Alexander engaged in a
course of behavior that this court deems to be outrageous and
worthy of condemnation." Id. (internal quotation marks omitted).
While the Supreme Court's decision in Kolstad clarified
that "the presence (or absence)" of egregious or outrageous acts
"does not in itself determine the propriety (or lack of propriety)
of punitive damages in a given case," Iacobucci, 193 F.3d at 26
(citation omitted), such damages remain available where a
defendant's egregious intentional conduct itself demonstrates her
perception of a "risk that [her] actions [would] violate federal
law." Kolstad, 527 U.S. at 536. "To be sure, egregious or
outrageous acts may serve as evidence supporting an inference of
the requisite 'evil motive.'" Id. at 538. Indeed, "[c]onduct
warranting punitive awards has been characterized as
'egregious' . . . because of the defendant's mental state." Id.
We have described the plaintiff's obligation to
demonstrate a defendant's state of mind regarding the consequences
of her intentional acts as "a heightened burden." Zimmerman v.
Direct Fed. Credit Union, 262 F.3d 70, 84 (1st Cir. 2001)
(distinguishing state law standard for punitive damages from that
imposed by § 1983). This description merely reflects the dual
purposes that a plaintiff's evidence must serve in a case where
punitive damages are sought; it does not preclude evidence of
-33-
egregious misconduct from serving, in appropriate circumstances,
both as evidence of the alleged violation of a federal right and as
evidence of the defendant’s awareness of the risk that her actions
would violate that federal right.
Indeed, in cases involving retaliation, a defendant's
"actions and the effect of those actions are closely connected in
a way not necessarily present in other types of cases." Che v.
Mass. Bay Transp. Auth., 342 F.3d 31, 41 (1st Cir. 2003) (remanding
for jury trial on punitive damages where employer engaged in
"intentional discriminatory retaliation"). The legal standard for
a finding of liability for retaliation (the underlying liability
claim in a case such as this) already entails an inquiry into a
defendant's motive as well as into the legally protected nature of
the plaintiff's conduct. See Mt. Healthy, 429 U.S. at 287
(plaintiff must show "that his conduct was constitutionally
protected, and that this conduct was a 'substantial factor'
or . . . a 'motivating factor'" for the defendant's retaliatory
decision to shift burden to defendant). Where a defendant engages
in particularly "outrageous" acts of retaliation and where the
right whose exercise triggers those retaliatory acts is a well-
established constitutional right, a factfinder "could, but need
not, fairly infer that the [defendant] harbored malice or reckless
indifference" towards that federal right. Che, 342 F.3d at 42.
-34-
Although the specific intent to violate a plaintiff’s
federally protected right will support a punitive damages award,
"reckless indifference" towards a plaintiff's federally protected
right also suffices to authorize liability for punitive damages
under § 1983.22 See, e.g., Dimarco-Zappa, 238 F.3d at 38 (finding
no abuse of discretion in award of punitive damages where "[t]he
extent of federal statutory and constitutional law preventing
discrimination on the basis of ethnicity or race suggests that
defendants had to know that such discrimination was illegal, and
that [defendants' discriminatory conduct] exhibited 'reckless and
callous indifference' to [plaintiff's] federal rights, if not evil
intent.") (citation omitted); Rubinstein v. Adm'rs of Tulane Educ.
Fund, 218 F.3d 392, 406 (5th Cir. 2000) (evidence that defendant's
agent retaliated against plaintiff "because he 'hauled colleagues
22
In his majority opinion in Smith v. Wade, 461 U.S. at 42-43,
Justice Brennan parsed various formulations of the standard of
recklessness that suffices to authorize an award of punitive
damages in the absence of "actual malice." He quoted the standard
announced in Milwaukee & St. Paul Ry. Co. v. Arms, 91 U.S. 489,
493, 495 (1876), as an exemplar: "that reckless indifference to the
rights of others which is equivalent to an intentional violation of
them . . . that entire want of care which would raise the
presumption of a conscious indifference to consequences." Justice
Brennan noted that this standard distinguishes between
"indifference, conscious or otherwise," and "intent," while holding
both states of mind of similar culpability. Smith, 461 U.S. at 43
n.10. In Kolstad, the Supreme Court clarified that in the context
of intentional discrimination, a defendant must act "in the face of
a perceived risk that its actions will violate federal law to be
liable in punitive damages." Kolstad, 527 U.S. at 536. We have
thus described the standard as requiring "conscious indifference"
towards a plaintiff's federally protected rights. Iacobucci, 193
F.3d at 26.
-35-
into court to try to resolve differences' . . . indicates a healthy
disdain for [plaintiff's] rights to seek redress in the courts for
perceived wrongs [and was] adequate to meet the standard of
reckless indifference at least, if not outright animus, towards
those rights").
As noted, the court found that Alexander's retaliatory
actions "were especially unworthy of a City Solicitor." Powell,
221 F. Supp. 2d at 152-53. In our judgment, this focus by the
court on conduct unworthy of an attorney reflects the district
court's implicit finding that Alexander, as a former general
litigator, as City Solicitor (however overburdened and
inexperienced in municipal law),23 and as the attorney who
negotiated the 1993 settlement agreement, recognized and acted with
"reckless or callous indifference" towards Powell's constitutional
right to petition the courts for redress. Smith, 461 U.S. at 56.
In other words, as an attorney, Alexander surely understood that
Powell's filing of his 1991 lawsuit was an exercise of his First
Amendment right to petition the government for redress, and that in
retaliating against him for the filing of that lawsuit she risked
23
According to the district court, "[w]hen [Alexander] started
[the job of City Solicitor], the [S]olicitor's office was in bad
shape. There was a huge number of cases, and files were on the
floor. Alexander had been a general litigator and had no
experience in municipal law. She was working 12-15 hours per day,
6 days a week, and had only one half-time assistant. Due to her
efforts, the organization and professionalism of the Solicitor's
office quick[l]y improved." Powell, 221 F. Supp. 2d at 122.
-36-
violating his right under the Constitution. Her conduct was
particularly unworthy of a City Solicitor because of her callous
indifference to Powell's exercise of that right. Indeed, Alexander
never argued at trial or on appeal that Powell's filing of his 1991
lawsuit was not protected by the First Amendment or that she was
unaware that retaliation against Powell could violate his First
Amendment right to seek redress in the courts. Moreover, there is
substantial evidence in this record of Alexander's "consciousness
of wrongdoing," McKinnon, 83 F.3d at 509, in the form of her
elaborate efforts to prevent Dr. Bird's critical July 5, 1994,
letter (which the court found "cleared Powell to go back to work,"
Powell 221 F. Supp. 2d at 152), from coming to light.
We conclude, therefore, that the district court's
detailed factual analysis of Alexander's conduct, including the
examples it specifically identified as "outrageous and
reprehensible" and "especially unworthy of a City Solicitor,"
Powell, 221 F. Supp. 2d at 152-53, supports its implied finding
that Alexander acted "in the face of a perceived risk that [her]
actions [would] violate federal law [Powell's First Amendment right
under § 1983]," Kolstad, 527 U.S. at 536, and thus with sufficient
"evil motive" or "reckless or callous indifference to the federally
protected rights of others," Smith, 461 U.S. at 56, to meet the
legal standard for punitive damages under § 1983.
-37-
III.
We turn to Alexander's argument, raised for the first
time on appeal, that she is not subject to punitive damages because
she did not have proper notice that she was being sued in her
individual capacity.24 Both Powell's complaint and amended
complaint were silent on the capacity in which he sought to sue
Alexander, whom the complaints identified as "a natural person who
at all times pertinent to this complaint was the City Solicitor for
the defendant City of Pittsfield."
A. Per Se Approach or Course of Proceedings
Alexander invites us to adopt a bright-line, or "per se,"
approach to resolving a complaint's ambiguity or silence on the
issue of capacity, such as that employed by the Eighth Circuit.
Under this approach, a defendant governmental official is presumed
to be sued solely in his or her official capacity unless the
complaint specifically states otherwise. See, e.g., Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) ("[O]nly
an express statement that [governmental officials] are being sued
in their individual capacity will suffice to give proper notice to
24
Powell argues that Alexander has forfeited this issue by
failing to raise it by objection to the magistrate judge's report
and recommendation regarding summary judgment, at trial in her
motions pursuant to Fed. R. Civ. P. 52(c), or after trial in a
motion to amend judgment or motion for a new trial. This court
may, in its discretion, excuse forfeiture, and we choose to do so
here to resolve this important issue. Chestnut v. City of Lowell,
305 F.3d 18, 20 (1st Cir. 2002) (en banc) (per curiam).
-38-
the defendants . . . ."); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d
615, 620 (8th Cir. 1995) ("[P]laintiff's complaint [must] contain
a clear statement of her wish to sue defendants in their personal
capacities."). In Nix v. Norman, 879 F.2d 429, 431 (8th Cir.
1989), the Eighth Circuit emphasized the importance of giving
governmental officials clear notice of the capacity in which they
are being sued at the outset of litigation -- in the complaint
itself. Early and explicit notice permits governmental official
defendants who are subject to personal liability for monetary
damages to assess matters crucial to their litigation strategy,
including the propriety of raising particular defenses available
only to governmental officials sued in a particular capacity. For
example, while an official-capacity defendant may raise the defense
of sovereign immunity, a personal-capacity defendant may assert
"objectively reasonable reliance on existing law," a defense not
available to official-capacity defendants. See Kentucky v. Graham,
473 U.S. 159, 167 (1985) (setting forth defenses to liability under
§ 1983 to "illustrate the basic distinction between personal- and
official-capacity actions"). Defendants with early notice of
potential personal liability may also assess "the availability of
insurance coverage and whether there are potential conflicts of
interest that might require separate representation of defendants."
Charron v. Picano, 811 F. Supp. 768, 772 (D.R.I. 1993).
-39-
Notwithstanding the concerns reflected in the Eighth
Circuit's analysis, the other circuits have, with virtual
unanimity, adopted the "course of proceedings" test as the better
approach.25 The Supreme Court has also acknowledged that:
in many cases, the complaint will not clearly
specify whether officials are sued personally,
in their official capacity, or both. "The
course of proceedings" in such cases typically
will indicate the nature of the liability
sought to be imposed.
Graham, 473 U.S. at 167 n.14 (quoting Brandon v. Holt, 469 U.S.
464, 469 (1985)). We now join the multitude of circuits employing
the "course of proceedings" test, which appropriately balances a
defendant's need for fair notice of potential personal liability
against a plaintiff's need for the flexibility to develop his or
her case as the unfolding events of litigation warrant. In doing
so, we decline to adopt a formalistic "bright-line" test requiring
25
See, e.g., Moore v. City of Harriman, 272 F.3d 769, 772 (6th
Cir. 2001); Atchinson v. District of Columbia, 73 F.3d 418, 425
(D.C. Cir. 1996) (approving course of proceedings test but
declining to employ it where complaint was not silent on issue of
capacity of suit); Biggs v. Meadows, 66 F.3d 56, 58 (4th Cir.
1995); Colvin v. McDougall, 62 F.3d 1316, 1317 (11th Cir. 1995);
Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993); Houston v. Reich,
932 F.2d 883, 884 (10th Cir. 1991); Price v. Akaka, 928 F.2d 824,
828 (9th Cir. 1990); Melo v. Hafer, 912 F.2d 628, 635 (3d Cir.
1990), aff'd on other grounds, 502 U.S. 21, 24 n.* (1991)
(declining to resolve circuit split on proper approach to capacity
analysis); Shockley v. Jones, 823 F.2d 1068, 1071 (7th Cir. 1987)
(presumption favoring official-capacity suit only is not
conclusive; "a court must look to the manner in which the parties
have treated [the] suit"). See also Pieve-Marín v. Combas-Sancho,
967 F. Supp. 667, 669 (D.P.R. 1997) (applying course of proceedings
test); but see Charron, 811 F. Supp. at 772 (D.R.I. 1993) (applying
per se test).
-40-
a plaintiff to use specific words in his or her complaint in order
to pursue a particular defendant in a particular capacity.
However, we do not encourage the filing of complaints which do not
clearly specify that a defendant is sued in an individual capacity.
To the contrary, it is a far better practice for the allegations in
the complaint to be specific. A plaintiff who leaves the issue
murky in the complaint runs considerable risks under the doctrine
we adopt today.
Under the "course of proceedings" test, courts are not
limited by the presence or absence of language identifying capacity
to suit on the face of the complaint alone. Rather, courts may
examine "the substance of the pleadings and the course of
proceedings in order to determine whether the suit is for
individual or official liability." Pride v. Does, 997 F.2d 712,
715 (10th Cir. 1993). Factors relevant to this analysis include
"the nature of the plaintiff's claims, requests for compensatory or
punitive damages, and the nature of any defenses raised in response
to the complaint, particularly claims of qualified immunity."
Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001);
see also Biggs v. Meadows, 66 F.3d 56, 61 (4th Cir. 1995). A court
may also take into consideration "whether the parties are still in
the early stages of litigation," Moore, 272 F.3d at 772 n.1,
including whether amendment of the complaint may be appropriate.
No single factor is dispositive in an assessment of the course of
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proceedings. "Throughout, the underlying inquiry remains whether
the plaintiff's intention to hold a defendant personally liable can
be ascertained fairly." Biggs, 66 F.3d at 61.
B. The Course of Proceedings Here
In this case, the course of proceedings gave Alexander
fair notice that she was being sued in her individual capacity.
First, Powell's complaint and amended complaint contained a prayer
for punitive damages. The prayer for punitive damages could only
be brought against defendant governmental officials who were sued
in their individual capacities. Claims for punitive damages are
not available against a municipality, such as the City of
Pittsfield, under § 1983. City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 259-60 (1981). Because bringing suit against a
governmental official in his or her official capacity is tantamount
to bringing "suit against the official's office," Will v. Mich.
Dep't of State Police, 491 U.S. 58, 71 (1989), it follows that
punitive damages are not available against governmental officials
sued in their official capacities. See Biggs, 66 F.3d at 61.
Recognizing these legal principles, Alexander filed a joint answer
on behalf of all the defendants named in Powell's complaint,
raising, among other affirmative defenses, a qualified immunity
defense. "[T]he assertion of that defense indicates that the
defendant interpreted the plaintiff's action as being against [her]
personally." Biggs, 66 F.3d at 61.
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Alexander argues that both Powell's claim for punitive
damages and her assertion of a qualified immunity defense were
merely perfunctory pleadings and should not be taken as notice of
the capacity in which she was sued. Yet "the assertion of
qualified immunity provides some indication" that Alexander is "not
prejudiced by our treating [the] complaint as one brought against
[her] in [her] personal capacit[y]." Id. (according less weight to
raising of qualified immunity defense where defendants also raised
sovereign immunity).
Alexander also argues that subsequent indications of the
capacity in which she was sued came too late in the litigation to
provide her with adequate notice. For example, the magistrate
judge's conclusion that Alexander was being sued in her individual
capacity emerged only in a report and recommendation regarding
summary judgment, more than three years after the litigation's
inception. See Powell v. City of Pittsfield, 143 F. Supp. 2d 94,
115 (D. Mass. 2001) (adopting magistrate judge's report and
recommendation discussing availability of suit against defendants
in their individual capacity under various statutes). However, the
relevant time frame of the course of proceedings varies for each
individual case and may include events occurring after the initial
pleadings. See, e.g., Moore, 272 F.3d at 774 ("Subsequent filings
in a case," including responses to motions to dismiss for failure
to state a claim or to motions for summary judgment, "may rectify
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deficiencies in the initial pleadings."); Houston v. Reich, 932
F.2d 883, 885 (10th Cir. 1991) ("pleadings, pre-trial order, and
[jury] instructions ma[d]e it clear" that defendants were being
sued in both official and individual capacities). Here, Alexander
reiterated her early assertion of qualified immunity as an
affirmative defense in her individual motion for summary judgment.
Alexander makes much of the fact that Powell's complaint
identified her as "a natural person who at all times
pertinent . . . was the City Solicitor for the defendant City of
Pittsfield," that is, as a municipal governmental official. She
asserts that this language strongly suggests Powell intended to sue
her solely in her official capacity. However, "under § 1983, a
plaintiff may sue a [governmental] officer in [her] individual
capacity for alleged wrongs committed by the officer in [her]
official capacity." Price v. Akaka, 928 F.2d 824, 828 (9th Cir.
1990). It simply "does not follow that every time a public
official acts under color of state law, the suit must of necessity
be one against the official in his or her official capacity." Melo
v. Hafer, 912 F.2d 628, 636 (3d Cir. 1990), aff'd, 502 U.S. 21
(1991).
Powell points out that he did not seek to establish that
Alexander "acted in accordance with a governmental policy or
custom," Biggs, 66 F.3d at 61, as would be expected in an official-
capacity suit. See Conner v. Reinhard, 847 F.2d 384, 394 n.8 (7th
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Cir. 1988) (noting plaintiff's failure to "assert that the
defendants followed a policy or custom" of the city as required in
official-capacity suit). Powell thus argues that he gave no
indication here that he was suing Alexander in her official
capacity, much less solely in that capacity. Of course, Powell was
free to sue Alexander in either or both of her official and
personal capacities. Thus, the central inquiry remains whether the
course of proceedings here gave Alexander fair notice of an
individual-capacity suit, regardless of the presence or absence of
allegations supporting an official-capacity suit.
Viewed as a whole, the course of proceedings in this case
gave Alexander fair notice that she was being sued in her
individual capacity and was subject to personal liability for
punitive damages.
IV.
Powell moves for reasonable attorney's fees and costs of
appeal pursuant to 42 U.S.C. § 1988. Recognizing that the
availability of such an award is intended to compensate prevailing
plaintiffs for the time and expense required to vindicate their
federally protected civil rights, see Aubin v. Fudala, 821 F.2d 45,
47 (1st Cir. 1987); Coalition for Basic Human Needs v. King, 691
F.2d 597, 602-03 (1st Cir. 1982), we grant Powell's motion and
remand to the district court for a determination of the appropriate
amount of attorney's fees and costs. See Aubin, 821 F.2d at 48
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(remanding for award of attorney's fees and costs incurred on
appeal); Souza v. Southworth, 564 F.2d 609, 613 (1st Cir. 1977)
(award of attorney's fees for appellate work involves "factual
findings more appropriately made by a district court" than by court
of appeals).
Powell also moves for an additional or alternative award
of "just damages and single or double costs" pursuant to Federal
Rule of Appellate Procedure 38 on the ground that Alexander's
appeal was frivolous. Although we affirm the district court's
award of punitive damages and decline Alexander's invitation to
adopt a "per se" approach to the issue of pleading the capacity in
which a governmental official is sued, this appeal was not
frivolous. Establishing that a trial court's factual findings are
clearly erroneous may be "a steep uphill climb," Fed. Refinance
Co., 352 F.3d at 27, but it is not an impossible feat. Moreover,
Alexander was entitled to de novo review on the ultimate question
of whether she had the requisite state of mind to support an award
of punitive damages. Finally, Alexander's reliance on Eighth
Circuit precedent as persuasive authority supporting her argument
for a "per se" rule on capacity, an issue of first impression in
this circuit, was plausible. Finding that Alexander's appeal was
neither "perfunctory" nor wasteful of judicial resources, see
Johnson v. Allyn & Bacon, Inc., 731 F.2d 64, 74 (1st Cir. 1984), we
deny Powell's Rule 38 motion.
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Affirmed. Remanded for an award of reasonable attorney's
fees and costs of appeal pursuant to 42 U.S.C. § 1988.
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Powell v. Alexander
Court: Court of Appeals for the First Circuit
Date filed: 2004-11-24
Citations: 391 F.3d 1
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