Jerry Farrish, Plaintiff-appellee, v. Mississippi State Parole Board, et al., Defendants-appellants, 836 F.2d 969 (5th Cir. 1988)

Three state officials appeal from an adverse judgment in a civil rights suit concerning the denial of a Mississippi parolee's constitutional right to confront an adverse witness at a preliminary parole revocation hearing. The appellants contend that the district court erred in finding as a matter of law that a denial of procedural due process caused the parolee's unlawful detention, in denying the defense of absolute immunity to the officials involved in the revocation hearing, and in finding that the officials were not entitled to qualified immunity in this case. We conclude that the district court properly found that the parolee was entitled to relief for a procedural due process violation, but we also conclude that the officers who conducted the preliminary parole revocation hearing should receive absolute immunity. Thus we partially affirm and partially reverse the district court's judgment.

In 1981, a Mississippi court sentenced Jerry Farrish ("Farrish") to imprisonment in the custody of the Mississippi Department of Corrections following his conviction for possession of marijuana with intent to deliver. In 1982, Farrish received parole and returned to Hazlehurst, Mississippi, where police arrested him on May 18, 1984, pursuant to a warrant issued by a municipal judge.¹  Farrish was placed in the Copiah County Detention Center, and on May 21, Farrish's parole officer, Ellis Stuart, Jr. ("Stuart"), issued a paroled prisoner arrest warrant that caused Farrish to be detained without bond. Also on May 21, Stuart gave Farrish written notice that an informal preliminary hearing would be held on May 25 to determine whether there was a reason to revoke his parole. The notice informed Farrish that he would "be allowed to be present, speak, present evidence, confront and cross-examine any witnesses" against him, that he had the right to retain a lawyer to represent him at the administrative hearing, and that the charge against him was the sale of marijuana.

Before and at the hearing, Farrish requested the presence of J.D. Mohon ("Mohon"), an individual whose statement to police provided the basis for the charge, and promised that Mohon would not be subject to risk of harm. Stuart and the preliminary hearing officer, R.W. Smith ("Smith"), informed Farrish that they lacked subpoena power, and Mohon did not voluntarily appear at the hearing. Instead, the hearing officer heard testimony from Farrish, Stuart, Hazlehurst Chief of Police Kenneth McClendon ("McClendon"), and Police Lieutenant Hal Pell. Both police officers testified about the events surrounding Farrish's arrest and about Mohon's statements. As additional evidence, Stuart submitted copies of Mohon's written statement and a lab report showing that 117 grams of marijuana were seized from Mohon.

The testimony revealed that McClendon knew Farrish and suspected him of drug dealing. On May 9, McClendon met Farrish driving away from Farrish's residence and saw an unfamiliar vehicle sitting in the driveway as if its occupants were waiting for Farrish's return. McClendon parked where he could inconspicuously observe the front of the house, and Farrish soon arrived. Shortly after Farrish entered the house, a person later identified as Mohon left carrying something in his hand. McClendon followed Mohon, arrested him for a traffic violation, searched his car, and found a bag of marijuana under the seat. When questioned by McClendon, Mohon stated that he bought the marijuana from Farrish for $250. A consensual search of Farrish's house when he was arrested nine days later produced no illegal drugs, but McClendon explained that Farrish anticipated his arrest.

According to Farrish, Mohon was an acquaintance introduced by a mutual friend two months earlier. Farrish testified that Mohon attempted to sell him the bag of apparently homegrown marijuana for $250. To explain his brief errand on May 9, Farrish stated that he went to pick up a repair part for his television but the repair shop was closed. Farrish admitted knowing of Mohon's arrest, but he denied anticipating his own arrest and continuing any drug-related activities. At the hearing, Farrish's attorney cross-examined each witness that appeared, but he continuously objected to the admission of Mohon's hearsay statements. The attorney also included in the hearing record a letter to Smith stating Farrish's position that, under Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), the hearsay testimony should not be considered unless Mohon was presented for confrontation and cross-examination.²  Smith overruled Farrish's objections, and at the close of the hearing, he found that there was probable cause to believe Farrish had violated the conditions of his parole and that he should be held in custody for a final revocation hearing before the Mississippi Parole Board.

Farrish subsequently filed suit in federal court, but the district court dismissed the case without prejudice because the court ruled that Farrish should first exhaust state remedies. Farrish then filed a habeas corpus petition in state court. The state court found that probable cause existed to hold Farrish pending a final parole revocation hearing, and the court denied Farrish relief but ordered that the final hearing be held before July 31, 1984. On July 17, the Mississippi Parole Board held a final revocation hearing without Mohon present and found no reasonable cause to revoke Farrish's parole. Consequently, Farrish was released under the terms of his original parole.

On October 11, 1984, Farrish filed this suit under 42 U.S.C. § 1983, alleging a violation of his constitutional right of procedural due process based on Morrissey.³  Specifically, Farrish asserted that his detention for a final parole revocation hearing impermissibly rested on statements by an adverse witness who did not appear for confrontation and cross-examination at the preliminary hearing. He also alleged that Mississippi statutes and procedures that did not provide a means to subpoena witnesses for preliminary parole revocation hearings were unconstitutional. Farrish sued numerous state entities and officials, including the Mississippi State Parole Board and its members, the Mississippi Department of Corrections, members of the Mississippi Board of Corrections, Commissioner of Corrections Morris Thigpen, the state and its governor, and Parole Officers Stuart and Smith.⁴  Farrish sought declaratory, injunctive, and monetary relief for himself and others similarly situated.

Farrish subsequently moved for summary judgment. With his motion, Farrish submitted copies of the record from his preliminary parole revocation hearing, a certificate from an Assistant Secretary of State for Administrative Procedures stating that no documentation of rules or regulations concerning parole revocation hearings had been filed according to state administrative law, the final judgment in Farrish's prior federal suit, the parole board's "Certificate to Continue on Parole" issued after Farrish's final revocation hearing, and an affidavit from Farrish. The defendants moved for dismissal for failure to state a claim based on immunity and responded to the summary judgment motion.⁵  In ruling on these motions, the district court found as a matter of law that Farrish's constitutional right was violated at his preliminary parole revocation hearing. The court entered a summary judgment declaring the challenged statutes unconstitutional as applied in this case and enjoining state officials from denying parolees the right to subpoena, confront, and cross-examine witnesses.⁶  The court also stated its view that probable cause to detain Farrish after the preliminary hearing did not exist without Mohon's hearsay statements and that Farrish was entitled to recover for his illegal confinement. The court held that the officials were entitled to assert a qualified immunity defense and that a determination of Farrish's damages and the individual liability of particular officials required a hearing.

The defendants filed a motion to reconsider in which, among other things, they argued that summary judgment was inappropriate because a factual dispute existed concerning whether there was probable cause to detain Farrish without Mohon's statements.⁷  The district court denied the motion, stating in part that a dispute as to probable cause was immaterial to its finding that Farrish was denied procedural due process. In April 1986, the district court held a non-jury trial to decide the issues of liability and damages. From the trial evidence, the district court found "that Mohon's statement was required in order to support a finding of probable cause which would justify [Farrish's] being held in custody until a final revocation hearing." Accordingly, the court awarded Farrish compensatory damages for injuries caused by his confinement.

Furthermore, the district court held "that the minimum due process requirements enumerated in Morrissey were well established at the time of [Farrish's] hearing." The court found that neither the governor, the members of the Mississippi Board of Corrections, nor members of the Mississippi Parole Board engaged in conduct violative of Farrish's rights and, therefore, that none of those officials was personally liable.⁸  The court did find, however, that Morris Thigpen ("Thigpen") as Commissioner of Corrections should have established rules and policies for conducting preliminary parole revocation hearings or advised parole officers of his statutory subpoena power. Consequently, the court found that Thigpen, Smith, and Stuart were jointly and severally liable for Farrish's damages and attorney's fees. The district court entered final judgment on January 28, 1987, and Thigpen, Smith, and Stuart timely appealed.

The appellants assert that they should receive absolute immunity in this case because the basis of their liability is their performance of a quasi-judicial function. Alternatively, the appellants contend that they were entitled to qualified immunity because this case presented a unique situation and they could not reasonably have known that an adverse witness' hearsay statements must be excluded when the witness is unavailable. Finally, the appellants argue that the district court erred in granting summary judgment because of a factual dispute concerning the existence of probable cause.⁹  We address each of these issues in turn.

The district court afforded Thigpen, Smith, and Stuart only a qualified immunity defense. In denying absolute immunity to hearing officer Smith, the court expressly relied on our decision in Fowler v. Cross, 635 F.2d 476, 481 (5th Cir. 1981). The court's conclusion that the officials should not receive absolute immunity is a legal determination subject to our unlimited review. For the reasons below, we must disagree with the district court as to Smith and Stuart.

In earlier cases where prisoners sought to challenge parole denials, we held that parole board members are absolutely immune from suits for damages. See Johnson v. Wells, 566 F.2d 1016, 1018 (5th Cir. 1978); Cruz v. Skelton, 502 F.2d 1101, 1102 (5th Cir. 1974). In Cruz, we stated our full agreement with the Ninth Circuit's position and quoted Silver v. Dickson, 403 F.2d 642, 643 (9th Cir. 1968):

"In our opinion the members of the [state parole board] and other state officials are, while employed in the processing of applications for parole, performing quasi-judicial functions. They therefore have immunity from suits for damages under the Civil Rights Act, just as other public employees engaged in the performance of quasi-judicial duties."

Cruz, 502 F.2d at 1101. Recent cases reaffirm our view that state officials deciding whether to grant or deny parole enjoy absolute immunity while engaging in their official duties. See Serio v. Members of Louisiana State Bd. of Pardons, 821 F.2d 1112, 1114 (5th Cir. 1987); Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193-94 (5th Cir. 1985). The Supreme Court recently observed: "Although this Court has not decided whether state parole officials enjoy absolute immunity as a matter of federal law, federal appellate courts have so held." Cleavinger v. Saxner, 474 U.S. 193, 200-01, 106 S. Ct. 496, 500, 88 L. Ed. 2d 507 (1985) (citing Evans v. Dillahunty, 711 F.2d 828, 830-31 (8th Cir. 1983); United States ex rel. Powell v. Irving, 684 F.2d 494 (7th Cir. 1982); Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981)).¹⁰  In fact, it appears that every circuit that has considered the issue has uniformly adopted this view. See, e.g., Johnson v. Rhode Island Parole Board Members, 815 F.2d 5 (1st Cir. 1987), and cases cited therein.

Having accepted quasi-judicial immunity for parole board members exercising their decision-making power, we perceive no principled distinction between denying parole and revoking parole or between parole board members and other parole officials to the extent that they perform the parole board's adjudicatory function. Other courts agree. See, e.g., id. at 7-8; Trotter v. Klincar, 748 F.2d 1177, 1182-83 (7th Cir. 1984); Anderson v. Boyd, 714 F.2d 906, 908-09 (9th Cir. 1983). This result flows from the Supreme Court's "functional" approach to immunity law which focuses on the nature of the individual official's responsibilities and not on his rank, status, or location within the government. See Cleavinger, 474 U.S. at 201, 106 S. Ct. at 501. Utilizing this approach, the parole revocation process is indistinguishable from the initial parole process and, arguably, is even more adjudicatory in nature.¹¹  Similarly, an official responsible for conducting a revocation hearing is indistinguishable from a parole board member performing that function. Therefore, under the law of this circuit, parole board members must receive absolute immunity in a suit for damages by a parolee alleging that revocation procedures violated his right to due process, and an official who, because of the organization of the government in a particular state, performs the parole board's quasi-judicial duties must enjoy the same protection.

We recognize that in Fowler, 635 F.2d at 481, a panel of this court stated that members of a parole commission and its employee who denied a parolee a prompt preliminary revocation hearing were entitled to raise a qualified immunity defense, citing Williams v. Rhoden, 629 F.2d 1099 (5th Cir. 1980) and Henzel v. Gerstein, 608 F.2d 654 (5th Cir. 1979). In Henzel, the court affirmed a summary judgment on qualified immunity grounds of a parolee's civil rights claim against a parole commissioner, who allegedly interfered with the parolee's business relationships by making telephone calls to obtain authorization for out-of-state business trips and to verify the legality of the business contacts. See 608 F.2d 658-59. We express no opinion concerning the degree of immunity due a parole official engaging in the conduct at issue in that case. In Williams, however, the court stated that a qualified immunity defense was available to parole commission members in a suit alleging that they repeatedly denied parole to a prisoner in retaliation for exercising federally protected rights. See 629 F.2d 1102-03. Although the panel did not consider whether absolute immunity was appropriate, the application of qualified immunity in Williams conflicted with our earlier holdings and must be ignored because a panel is deemed without power to disregard established precedent unless a Supreme Court or en banc decision changes the law. See Wilson v. Taylor, 658 F.2d 1021, 1034-35 (5th Cir. Unit B Oct. 1981). Similarly, to the extent that Fowler appears inconsistent with our earlier cases (because granting and revoking parole are similarly adjudicative), we cannot follow it.¹² 

In this case, the district court found Smith and Stuart monetarily liable for the denial of Farrish's due process right because of the manner in which they conducted his preliminary parole revocation hearing. Smith, as the hearing officer, conducted the hearing without a critical adverse witness even though Farrish requested his presence, overruled Farrish's objections to the hearsay evidence, and considered Mohon's hearsay statements in finding the existence of probable cause to detain Farrish. In other words, Smith was liable on the basis of his "judicial" activities. Stuart was responsible for presenting evidence at the preliminary hearing to show that Farrish had committed a parole violation. He failed to produce Mohon, questioned the available witnesses about Mohon's statements, and submitted a copy of Mohon's written statement to the hearing officer. In short, he served in a prosecutorial role during the revocation proceeding. The activities of both officers clearly fall within the scope of the parole board's protected function, and therefore, we hold that Smith and Stuart were absolutely immune from liability in Farrish's suit for damages.¹³ 

We do not believe, however, that the above analysis mandates absolute immunity for Thigpen. Thigpen argues that the procedural due process violation, if one occurred, was the decision to deny confrontation and cross-examination and that, therefore, anyone liable for that quasi-judicial action was entitled to absolute immunity. Assuming that Thigpen's theory is correct, his conclusion is not. He did not participate in the decision, and it was not the basis of his liability in this case. The district court premised Thigpen's liability on his failure to establish adequate rules and policies for preliminary parole revocation hearings or to advise parole officers of his subpoena power. Thigpen's conduct involved administrative activities which, although they impacted on the adjudicatory process, were not an integral part of it. Thus Thigpen's role merits only qualified immunity.

In reaching our conclusion, we are mindful of the Supreme Court's cautionary approach to extending the shield of absolute immunity and the Court's admonition that the burden is on the official seeking such protection to justify it. See Harlow v. Fitzgerald, 457 U.S. 800, 807-08, 102 S. Ct. 2727, 2732-33, 73 L. Ed. 2d 396 (1982). We can accept the proposition that executive officers, such as Smith and Stuart, who directly participate in the quasi-judicial activity of revoking parole, perform a special function that requires an absolute blanket of protection. We are not persuaded, however, that other executive officers, such as Thigpen, require such an exemption.¹⁴ 

Thigpen advances the alternate proposition that even under a qualified immunity theory, he cannot be liable for damages in this case. He contends that Farrish's parole revocation proceeding presented novel circumstances that he could not be expected to anticipate. His argument particularly relies on a contention that he is unable to discover a similar factual situation in prior case law.¹⁵  The district court concluded that Thigpen was liable because, although the procedural due process rights of parolees were well established and Thigpen knew that his employees conducted preliminary parole revocation hearings, he failed to adopt policies and procedures to comply with Morrissey. It is unclear whether Thigpen had established any procedures to govern preliminary hearings or whether he had merely adopted inadequate ones. We will assume for the purpose of argument that procedures existed which failed to provide guidance for officers facing a situation such as this one and thus that a more fact-specific inquiry is appropriate to determine whether Thigpen is qualifiedly immune in this case.

"Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official act generally turns on the 'objective legal reasonableness' of the action ..., assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, --- U.S. ----, 107 S. Ct. 3034, 3038, 97 L. Ed. 2d 523 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). The Supreme Court has fashioned this inquiry to allow the resolution of qualified immunity on a motion for summary judgment and thus to avoid exposing government officials to harassing litigation. See Anderson, 107 S. Ct. at 3038, 3040. Accordingly, we view the district court's determination that Thigpen did not prove his qualified immunity defense as a legal conclusion that we may freely review. The question that we must decide, therefore, is whether the right that Thigpen allegedly violated is "sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." Id. at 3039 (citations omitted).

The Supreme Court adopted the procedural safeguards of Morrissey "to assure that the finding of a parole violation will be based on verified facts." 408 U.S. at 484, 92 S. Ct. at 2602. Accordingly, the Court stated that the preliminary hearing should be conducted reasonably near the place of arrest and as promptly as possible "while information is fresh and sources are avilable." Id. at 485, 92 S. Ct. at 2602. The Court also stated: "On the request of a parolee, a person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence." Id. at 487, 92 S. Ct. at 2603. The only exception expressly recognized in Morrissey for requiring confrontation and cross-examination at the preliminary hearing was "if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed." Id. Clearly, the Court viewed the preliminary hearing as a tool for preserving live testimony and a parolee's right to confront his accuser as important to assure accurate findings of fact. Admittedly, the right of confrontation is conditional, but it is undisputed that the established conditions--a request by the parolee and no risk of harm to the adverse witness--were satisfied in this case.

Nevertheless, Thigpen argues that other statements in Morrissey create ambiguity. Specifically, the Court emphasized that the preliminary hearing is an informal proceeding, and about parole revocation, the Court stated, "the process should be flexible enough to consider other evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. at 489, 92 S. Ct. at 2604. Thigpen relies on these statements to support the proposition that Morrissey did not clearly require the exclusion of hearsay evidence at preliminary parole revocation hearings. To read statements concerning informality of procedure and rules of evidence as a license to circumvent the parolee's right of confrontation, however, is to completely ignore the letter and spirit of Morrissey.

The use of hearsay presents a two-fold problem: it prevents the parolee from confronting and cross-examining the declarant, and unreliable hearsay undermines the accuracy of the fact-finding process. Consequently, courts considering the admissibility of hearsay in revocation proceedings have adopted an approach which balances the parolee's interest in confronting a particular witness against the government's good cause for denying it, particularly focusing on the "indicia of reliability" of a given hearsay statement. See, e.g., United States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987); United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986); United States v. Penn, 721 F.2d 762, 764-65 (11th Cir. 1983). Similarly, in United States v. Caldera, we held, without articulating our analysis, that the introduction of a police officer's unsubstantiated testimony concerning a lab report and a field test for drugs required a new hearing "comporting more fully with [the probationer's] right to confront and cross-examine witnesses." 631 F.2d 1227, 1228 (5th Cir. 1980). In short, the case law establishes that courts have not viewed Morrissey as ambiguous in the manner that Thigpen suggests.

This case, far from being a borderline one, presents a classic example of when the use of hearsay impermissibly violates a right to confront and cross-examine the declarant. The only evidence that Farrish committed the alleged parole violation--the sale of marijuana--was Mohon's testimony. Mohon's self-serving statements contradicted Farrish's version of the same events, and the statements were inherently unreliable because if believed, they shifted a potential conviction for drug dealing from Mohon to Farrish. In short, the question of whether Farrish sold marijuana required a credibility choice between the two witnesses. However, rather than appearing as Farrish requested, Mohon testified in a most damaging way--through the police officers. The admission of Mohon's hearsay statements effectively deprived Farrish of his right to confront the adverse witness whose information provided the basis for parole revocation in a situation where his interest in exercising that right was paramount.¹⁶  Thus we conclude, without difficulty, that an official who failed to establish adequate policies or procedures to govern a preliminary hearing in such an elementary case should have known that his conduct violated a clearly established right.

The appellants also contend that the district court committed reversible error by granting summary judgment. In reviewing a summary judgment, we apply the same standard that governs the district court's determination: "Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if when viewing the evidence most favorably to the nonmoving party, ' [the evidence shows] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984) (quoting Fed. R. Civ. P. 56(c)). The appellants challenge the summary judgment on the ground that a factual dispute existed concerning whether there was probable cause to detain Farrish without Mohon's hearsay statements. In support of their position, they argue that Smith's statement and the state court's finding to the contrary raised a factual issue. After carefully reviewing the record, we reject the appellants' contention.¹⁷ 

First, even assuming the evidence that the appellants rely on to create a factual dispute was presented to the district court in response to Farrish's motion for summary judgment,¹⁸  it does not appear that the court resolved the probable cause issue in granting partial summary judgment. Although the memorandum opinion accompanying the summary judgment order is unclear on this point, the disputed issue was clearly irrelevant to the declaratory and injunctive relief granted in that order. The only determination that necessarily prefaced such relief was a finding that Farrish was denied procedural due process.

In addition, in a subsequent order denying the motion to reconsider, the district court clarified its earlier opinion by stating that a factual dispute concerning probable cause was immaterial to the issue decided, citing Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 1053, 55 L. Ed. 2d 252 (1978). There the Supreme Court stated, "the right to procedural due process is 'absolute,' " and the denial of that right is "actionable for nominal damages without proof of actual injury." Id. Furthermore, a different district judge, who conducted the trial and entered the final judgment, interpreted the prior orders as leaving the probable cause issue undecided because he decided the issue anew in his memorandum opinion and order. In short, the probable cause issue apparently remained unresolved by the entry of the summary judgment, and the appellants' challenge on the basis of that issue is therefore unavailing.

Second, the contested issue was relevant, if at all, only to determine the amount of Farrish's damages. To recover compensatory damages for injuries caused by his detention, the question was whether Farrish would have been detained even if a proper hearing had been held. See id. at 260, 98 S. Ct. at 1050. In this case, Farrish would have received a proper hearing if Mohon had been presented for confrontation and cross-examination or if Mohon's hearsay statements had not been considered at the hearing. Presumably because Mohon still had not appeared to testify, the district court made the determination of whether the outcome of the hearing would have been different by choosing the latter course: the district court excluded Mohon's hearsay statements and determined whether probable cause existed without them. Contrary to the appellants' assertion, the district court was not required to defer to Smith's later testimony concerning how he would have answered that inquiry. The appellants' premise is that a court must defer to an administrative judgment, but no such judgment in fact existed because the court was faced with a question that the hearing officer never decided. Similarly, we must reject the appellants' implicit argument that the issue had already been decided by the state court because they failed to plead or prove the state proceeding.

For the above reasons, we AFFIRM the district court's judgment against Thigpen, REVERSE the judgment against Smith and Stuart, and REMAND the case for further proceedings consistent with this opinion. Each party shall bear its own costs.