Joseph L. Pena v. Booth Gardner Lawrence Kincheloe Warden John Lambert Amos Reed

specially concurring.

I write separately only to emphasize that courts must still analyze the specifics of the conduct involved when determining whether a suit is against an official in his or her “official” or “individual” capacity. Our quote of the cryptic statement from Hafer, that “the phrase ‘acting in their official’ capacities can best be understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury” could be understood as meaning that a glance at the caption of the case is all that is required. This is too narrow a view, I believe.

A shorthand analysis of “official” versus “individual” capacity camouflages the real question. A state official acting within the scope of her office, as Ms. Hafer was, is always a state official. The issue to be addressed is not whether the officer acted in her official capacity, but whether she is individually liable for her conduct. The answer to this question depends on the quality of her acts, not whether she did them within the limits of her state-granted authority. If her acts deprived the plaintiff of civil rights under federal law, then she is liable for…

FACTS

As a result of a growing number of violent prisoner incidents, the Washington State Department of Corrections (“the Department”) constructed an Intensive Management Unit (“IMU”) at the Washington State Penitentiary (“the penitentiary”) designed to be a secure area to house prisoners deemed potentially dangerous or in need of special protection. To maintain security, the Department initiated a policy by which inmates were given a digital rectal probe before transfer to the IMU, or upon determination of a “cause predicate” unrelated to IMU placement:

*471 Pena, an inmate at the penitentiary who was not being transferred to the IMU, was given a digital rectal search that he alleges was conducted without probable cause. He filed a pro se complaint in the district court against Washington state officials 1 under 42 U.S.C. § 1983 . In his complaint he included pendent state law claims.

The state officials moved to dismiss Pena’s complaint under Rule 12(b)(6) and on the grounds that they were entitled to qualified immunity and immunity under the eleventh amendment. The district court stayed proceedings pending disposition of a related case, Tribble v. Gardner, No. C-86-234-JLQ…

976 F.2d 469 24 Fed.R.Serv.3d 391 Joseph L. PENA, Plaintiff-Appellee, v. Booth GARDNER; Lawrence Kincheloe; Warden; John Lambert; Amos Reed, Defendants-Appellants. No. 89-35674. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 5, 1991. Decided Sept. 15, 1992. As Amended Oct. 9, 1992. Martin E. Wyckoff, Asst. Atty. Gen., Olympia, Wash., for defendants-appellants. Michael F. Keyes, Spokane, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of Washington. Before WRIGHT, THOMPSON and T.G. NELSON, Circuit Judges. PER CURIAM: FACTS 1 As a result of a growing number of violent prisoner incidents, the Washington State Department of Corrections ("the Department") constructed an Intensive Management Unit ("IMU") at the Washington State Penitentiary ("the penitentiary") designed to be a secure area to house prisoners deemed potentially dangerous or in need of special protection. To maintain security, the Department initiated a policy by which inmates were given a digital rectal probe before transfer to the IMU, or upon determination of a "cause predicate" unrelated to IMU placement. 2 Pena, an inmate at the…