39 F.

3d 264

Tobin Don LEMMONS, also known as Everett Melson,

Plaintiff-Appellant,
v.
LAW FIRM OF MORRIS AND MORRIS; Fred V.
Monochello; and
Denise Graham, Defendants-Appellees.
No. 94-5048.

United States Court of Appeals,

Tenth Circuit.
Nov. 1, 1994.

Submitted on the briefs: *

Tobin Don Lemmons, pro se.
Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit
Judges.
McKAY, Circuit Judge.

While incarcerated in an Oklahoma jail, Mr. Lemmons, with the aid of Mr.
Monochello and his law firm of Morris & Morris, brought a workers'
compensation claim against his former employers. Mr. Lemmons commenced
his action in November 1989. On two occasions, January 15, 1991 and April
29, 1991, the judge before whom Mr. Lemmons's case was pending granted a
writ of habeas corpus ad testificandum to allow Mr. Lemmons to testify on his
own behalf. On each occasion, Assistant District Attorney Denise Graham of
Tulsa County intervened and prevented the execution of the writ. Mr.
Lemmons's case has remained in stasis during the intervening three years.

Mr. Lemmons, perceiving a deprivation of his constitutional rights, has brought

this action under 42 U.S.C. Sec. 1983 against Morris & Morris and Ms. Graham
(both personally and in her official capacity) in an effort to vindicate those
rights. In addition, Mr. Lemmons sued Morris & Morris and Mr. Monochello

for malpractice. The district court granted Mr. Lemmons leave to proceed in
forma pauperis, but then, on its own motion, dismissed the case under 28
U.S.C. Sec. 1915(d) as frivolous. The court ruled that Mr. Lemmons could not
establish federal jurisdiction to litigate his malpractice action. The court further
held that neither Mr. Monochello nor Morris & Morris qualified as state actors
within the meaning of Sec. 1983. Lastly, the district court concluded that Mr.
Lemmons's action against Ms. Graham was barred either by prosecutorial
immunity or, alternatively, that Mr. Lemmons had failed to claim a violation of
a constitutional or federal right sufficient to implicate Sec. 1983.
3

We affirm the dismissal of Mr. Lemmons's claims against Morris & Morris and
Mr. Monochello. Mr. Lemmons may be able to state a malpractice claim under
Oklahoma law, but that claim does not constitute a federal case. The conduct of
retained counsel does not rise to the level of state action within the meaning of
Sec. 1983. See, e.g., Bilal v. Kaplan, 904 F.2d 14, 15 (8th Cir.1990). Lastly, no
grounds exist for the exercise of diversity jurisdiction.

Construing Mr. Lemmons's pro se pleading liberally, see Hall v. Bellmon, 935
F.2d 1106 (10th Cir.1991), Mr. Lemmons asks for injunctive relief that would
prohibit Ms. Graham or her successors from interfering with the execution of
future writs of habeas corpus ad testificandum. Mr. Lemmons also seeks
monetary damages from Ms. Graham for the violation of his constitutional
rights of due process and access to the courts. More generally, Mr. Lemmons
asks for the court's assistance in allowing him to prosecute his five-year-old
workers' compensation case.

The district court ruled as a matter of law that Ms. Graham's actions fell within
the protective cloak of absolute prosecutorial immunity. We disagree. "[T]he
actions of a prosecutor are not absolutely immune merely because they are
performed by a prosecutor." Buckley v. Fitzsimmons, --- U.S. ----, ----, 113
S.Ct. 2606, 2615, 125 L.Ed.2d 209 (1993). Absolute immunity shields only
those activities that can be characterized as " 'intimately associated with the
judicial process' such as initiating and pursuing a criminal prosecution." Snell v.
Tunnell, 920 F.2d 673, 686 (10th Cir.1990) (quoting Imbler v. Pachtman, 424
U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976)), cert. denied sub
nom., Swepston v. Snell, 499 U.S. 976, 111 S.Ct. 1622, 113 L.Ed.2d 719
(1991). Administrative or investigative functions are protected only by
qualified immunity. Buckley, --- U.S. at ----, 113 S.Ct. at 2613-17 (1993); see
also DiCesare v. Stuart, 12 F.3d 973, 977 (10th Cir.1993).

Upon this record, it is impossible for us to characterize Ms. Graham's actions as

"prosecutorial" in nature. The state had successfully completed Mr. Lemmons's

prosecution months before. Ms. Graham has not suggested that any new
prosecutorial duties had arisen with respect to Mr. Lemmons. When Ms.
Graham intervened to forestall the execution of the writ of habeas corpus, she,
at best, acted pursuant to an administrative duty assigned to her office. Her
position therefore accorded her only qualified immunity.
7

Qualified immunity shields government officials from suit for damages "insofar
as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); see also
Hilliard v. City and County of Denver, 930 F.2d 1516, 1518-19 (10th Cir.),
cert. denied, --- U.S. ----, 112 S.Ct. 656, 116 L.Ed.2d 748 (1991); Dixon v.
Richer, 922 F.2d 1456, 1459-60 (10th Cir.1991). The defendant must raise the
defense; the burden then shifts to the plaintiff to demonstrate that immunity is
unwarranted. See Hilliard, 930 F.2d at 1518-19; Dixon, 922 F.2d at 1459-60.

Neither the District Attorney's Office nor Ms. Graham has pled the defense of
immunity. Irrespective of the impact of qualified immunity upon Mr.
Lemmons's claim for damages, neither qualified nor absolute immunity
precludes prospective injunctive relief except in rare circumstances not relevant
here. See, e.g., Pulliam v. Allen, 466 U.S. 522, 536-42, 104 S.Ct. 1970, 197881, 80 L.Ed.2d 565 (1984); Supreme Court of Virginia v. Consumers Union of
America, Inc., 446 U.S. 719, 730-37, 100 S.Ct. 1967, 1973-77, 64 L.Ed.2d 641
(1980); see also Paul M. Bator et al., Hart and Wechsler's The Federal Courts
and the Federal System 1173-94, 1249-58, 1303-07 (3d ed. 1988). A prosecutor
may not simply raise the shield of official immunity and continue to act in an
unconstitutional manner without fear of judicial orders to the contrary. See
Consumers Union, 446 U.S. at 737, 100 S.Ct. at 1977 ("If prosecutors and law
enforcement personnel cannot be proceeded against for declaratory relief,
putative plaintiffs would have to await the institution of state-court proceedings
against them in order to assert their federal constitutional claims. This is not the
way the law has developed...."). A plaintiff may therefore seek injunctive relief
to guard against continuing (or future) governmental misconduct. See id. at
736, 100 S.Ct. at 1977 ("Prosecutors ... are natural targets of Sec. 1983
injunctive suits since they are the state officers who are threatening to enforce
and who are enforcing the law."). As Mr. Lemmons in fact asks for such relief,
assertions of immunity, even if valid, cannot dispose of his complaint.

The district court also concluded that Mr. Lemmons's action lacked a nonfrivolous basis in law because a prisoner has no right to attend trial of her or his
civil action. While we accept the accuracy of the law upon which the district
court relied, we believe that the district court misconceived the essence of Mr.

Lemmons's complaint and consequently disposed of Mr. Lemmons in an overly

summary manner. Mr. Lemmons's case does not hinge upon the existence (or
nonexistence) of a general constitutional right to attend his civil trial. The writ
of habeas corpus ad testificandum granted by the Workers' Compensation Court
in and of itself gave Mr. Lemmons the legal right to appear in court. Rather,
Mr. Lemmons contends that Ms. Graham, by obstructing the execution of that
writ, effectively denied him "meaningful" access to the courts and unlawfully
deprived him of the writ's effect. Thus, the interference itself forms the
gravamen of his complaint.
10

Dismissal under Sec. 1915(d) rests with the sound discretion of the district
court. See Shabazz v. Askins, 980 F.2d 1333 (10th Cir.1992). Nonetheless, the
barrier erected by Sec. 1915(d) is not unduly high. To avoid dismissal, Mr.
Lemmons need not make out a perfect case. See Neitzke v. Williams, 490 U.S.
319, 326-29, 109 S.Ct. 1827, 1832-34, 104 L.Ed.2d 338 (1989) ("When a
complaint raises an arguable question of law which the district court ultimately
finds is correctly resolved against the plaintiff, ... dismissal on the basis of
frivolousness is not [appropriate]."). It suffices for him to state claims that are
rationally related to the existing law and the credible factual allegations. See id.
at 328-29, 109 S.Ct. at 1833-34 (noting that speculative claims often implicate
important questions of law and cannot therefore be deemed "frivolous").
Nothing in the record contradicts Mr. Lemmons's otherwise plausible account
of the facts of this case. Hence, if Mr. Lemmons can set forth arguable legal
grounds for relief, then his cause of action may not properly be dismissed as
frivolous under Sec. 1915(d) "even if the legal basis underlying the claim
ultimately proves incorrect." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th
Cir.1991) (emphasis added).

11

We cannot agree that Mr. Lemmons's arguments are so lacking in legal merit as
to be deemed frivolous within the meaning of Sec. 1915(d). The Constitution
indisputably guarantees Mr. Lemmons "adequate, effective, and meaningful"
access to the courts to assert civil causes of action. Bounds v. Smith, 430 U.S.
817, 822, 97 S.Ct. 1491, 1495, 52 L.Ed.2d 72 (1977); see also Smith v.
Maschner, 899 F.2d 940, 947 (10th Cir.1990) (characterizing right of access to
courts as fundamental constitutional right); Love v. Summit County, 776 F.2d
908, 911 (10th Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 66, 93 L.Ed.2d
25 (1986).

12

The Workers' Compensation Court of Oklahoma, in its sound discretion,

exercised this extraordinary power to release (albeit temporarily) Mr. Lemmons
from confinement and permit him to testify on his own behalf. We will
presume--in the absence of any evidence or argument to the contrary--that the

Oklahoma court granted the writ of habeas corpus because it judged Mr.
Lemmons's presence to be a vital component of his case. Certainly, the record
indicates that the case has progressed little in the three years since the second
writ issued--an observation which buttresses the conclusion that Mr.
Lemmons's presence at trial may be required if he is to have "effective" or
"meaningful" access to the courts. Compare Johnson v. Scott, 702 P.2d 56, 5859 (Okla.1985) (authorizing extra-statutory discovery methods to allow
prisoner to bring "meaningful" small claims action).
13

The writ of habeas corpus ad testificandum, moreover, manifests a legal

determination to allow a prisoner to testify. Thus, a petitioner's due process
right to have the writ executed according to law necessarily encompasses an
actual right of physical access to the relevant court. The record identifies no
idiosyncracies of Oklahoma law that limit the efficacy of that state's writ of
habeas corpus in general or the powers of the Workers' Compensation Court in
particular. That court, which twice issued writs of habeas corpus ad
testificandum on Mr. Lemmons's behalf, certainly believed that such measures
lay within its power. It is therefore at least arguable to equate obstruction of the
writ--itself necessary to ensure fruitful access to the courts and itself an
embodiment of a right of access--with the actual denial of access. Compare id.
(failure to provide alternative means for prisoner to present case would itself
violate due process).

14

More fundamentally, the writ itself, once granted, realizes a prisoner's right to
be free from confinement. As previously noted, we do not apprehend the legal
basis that enables an assistant district attorney to disregard a writ of habeas
corpus. The record does nothing to enlighten us in this respect. We again find it
at least arguable that continued imprisonment of a petitioner in the face of a
validly issued state writ of habeas corpus, in the absence of any justification or
excuse, violates a prisoner's constitutional rights.1

15

We recognize that frivolous in forma pauperis suits--particularly those directed

at public officials--harass their targets and clog the judicial system. See
Neitzke, 490 U.S. at 324-26, 109 S.Ct. at 1831-32. A district court is therefore
given discretion under Sec. 1915(d) to dismiss those suits that it deems legally
or factually frivolous. This power is not unlimited, however. An in forma
pauperis plaintiff, no less than a party who pays court costs, can state claims
based upon facts that are in dispute or legal theories that are as yet speculative.
See id. at 329-30, 109 S.Ct. at 1834. Factual allegations need merely be
plausible, and legal bases must only hold some arguable merit.

16

Neither Ms. Graham nor the District Attorney's Office of Tulsa County

responded to Mr. Lemmons's complaint. They have likewise failed to submit a

brief to this court. They have not disputed Mr. Lemmons's factual allegations.
They have not attacked the validity of his legal arguments, nor offered legal
arguments of their own. They have not invoked the doctrine of official
immunity. They have not pled Oklahoma state law as a defense or justification
of the (successful) effort to prevent execution of a judicial writ of habeas
corpus. We therefore accept as true all of the plausible factual allegations made
by Mr. Lemmons. After a review of the record--which contains copies of the
writs issued by the Workers' Compensation Court--we find none of these
allegations to be implausible.
17

Two writs of habeas corpus ad testificandum, each valid on its face, were
granted on Mr. Lemmons's behalf. These writs were, in effect, quashed and Mr.
Lemmons remained in confinement. Three years later, and five years after
initial filing, Mr. Lemmons's workers' compensation case has yet to proceed to
trial. It may be that Ms. Graham possessed sufficient authority to ignore a writ
of habeas corpus issued by the Workers' Compensation Court; if so, we are
unable to divine that authority from this record. In light of the above, we cannot
say that Mr. Lemmons's two constitutional claims--denial of access to the
courts and violation of due process--are without arguable merit. The dismissal
under Sec. 1915(d) of Mr. Lemmons's case against Ms. Graham and the District
Attorney's Office of Tulsa County therefore constituted an abuse of discretion.
We reverse that aspect of the district court's decision, and remand for further
proceedings not inconsistent with this opinion.

18

We AFFIRM the dismissal of Mr. Lemmons's action against Morris & Morris
and Mr. Monochello. We AFFIRM the district court's decision to allow Mr.
Lemmons to proceed in forma pauperis. We REVERSE the district court's
decision to dismiss Mr. Lemmons's action against Ms. Graham and the District
Attorney's Office of Tulsa County, and REMAND.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument

Unlawful retention of a petitioner in prison would certainly give rise to a valid

constitutional claim. We note that Okla.Stat.Ann. tit. 21 Secs. 835, 836 (West
1983) criminalize actions that perpetuate, without lawful excuse, the
incarceration of a prisoner in defiance of a writ of habeas corpus