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DA Liable for Preventing Court Appearance
Tobin Lemmons is an Oklahoma state prisoner. While in jail he filed a workers compensation complaint against his former employers with the aid of an attorney and law firm he hired for this purpose. On two occasions in 1991 the state judge before whom the compensation claim was pending issued writs of habeas corpus ad testificandum to secure Lemmonss presence in court so he could testify. On each occasion Tulsa County Assistant District Attorney Denise Graham intervened and prevented execution of the writ. Lemmonss suit has languished ever since. Lemmons filed suit under 42 U.S.C. § 1983 against both his attorney and Graham. The district court granted Lemmons in forma pauperis then, on its own motion, dismissed the suit as being legally frivolous stating that Lemmons could not establish federal jurisdiction for his malpractice claim against his attorney and Graham was entitled to absolute immunity.
The court of appeals for the tenth circuit affirmed in part, reversed in part and remanded the case for further proceedings. The court affirmed dismissal of the claims against the attorney because while Lemons may be able to pursue a malpractice suit against him in state court there was no state action to give rise to a §1983 claim.
Turning to the claims against Graham the court held that Lemmons had stated a claim for violation of his right of access to the courts and that even if he was not entitled to monetary damages he could still seek declaratory and injunctive relief. The court gave a detailed discussion of the relevant law on prosecutorial immunity and notes that it shields only those activities "intimately associated with the judicial process such as initiating and pursuing a criminal prosecution." Administrative and investigative functions by prosecutors are only protected by qualified immunity. Analyzing the claims against Graham the court held these could be best characterized as administrative in nature because Lemmons had already been convicted, thus she was only entitled to qualified immunity.
Because qualified immunity is an affirmative defense which must be raised and proven by the defendant it had to be raised by the defendant and would have to be resolved on remand. The court noted that regardless of whether Graham was entitled to absolute or qualified immunity from money damages she and all prosecutors are still subject to suit for equitable relief. "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." "A plaintiff may therefore seek injunctive relief to guard against continuing (or future) governmental misconduct. As Mr. Lemmons in fact asks for such relief, assertions of immunity, even if valid, cannot dispose of his complaint."
The district court also based its dismissal on the fact that prisoners do not have a right to attend civil trials. The appeals court agreed with that premise but held that it misconstrued Lemons claim. His claim did not hinge on the existence of a right to attend his trial but the fact that the writ of habeas corpus ad testificandum granted by the state court "in and of itself granted Mr. Lemmons the legal right to appear in court." Grahams interference with this right is the cause of action.
The court also discussed prisoners right of meaningful access to the courts and the power of courts to compel the attendance of prisoners at civil trials. The court could find no legal basis for a district attorney to interfere in the granting of a writ of habeas corpus. "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 prisoners constitutional rights."
While district courts retain considerable discretion in granting or denying indigent litigants the ability to proceed in forma pauperis that discretion is not unlimited. "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.... Factual allegations need merely be plausible, and legal bases must only hold some arguable merit." The court remanded the case to the lower court for further proceedings. See: Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 (10th Cir. 1994).
The court of appeals for the tenth circuit affirmed in part, reversed in part and remanded the case for further proceedings. The court affirmed dismissal of the claims against the attorney because while Lemons may be able to pursue a malpractice suit against him in state court there was no state action to give rise to a §1983 claim.
Turning to the claims against Graham the court held that Lemmons had stated a claim for violation of his right of access to the courts and that even if he was not entitled to monetary damages he could still seek declaratory and injunctive relief. The court gave a detailed discussion of the relevant law on prosecutorial immunity and notes that it shields only those activities "intimately associated with the judicial process such as initiating and pursuing a criminal prosecution." Administrative and investigative functions by prosecutors are only protected by qualified immunity. Analyzing the claims against Graham the court held these could be best characterized as administrative in nature because Lemmons had already been convicted, thus she was only entitled to qualified immunity.
Because qualified immunity is an affirmative defense which must be raised and proven by the defendant it had to be raised by the defendant and would have to be resolved on remand. The court noted that regardless of whether Graham was entitled to absolute or qualified immunity from money damages she and all prosecutors are still subject to suit for equitable relief. "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." "A plaintiff may therefore seek injunctive relief to guard against continuing (or future) governmental misconduct. As Mr. Lemmons in fact asks for such relief, assertions of immunity, even if valid, cannot dispose of his complaint."
The district court also based its dismissal on the fact that prisoners do not have a right to attend civil trials. The appeals court agreed with that premise but held that it misconstrued Lemons claim. His claim did not hinge on the existence of a right to attend his trial but the fact that the writ of habeas corpus ad testificandum granted by the state court "in and of itself granted Mr. Lemmons the legal right to appear in court." Grahams interference with this right is the cause of action.
The court also discussed prisoners right of meaningful access to the courts and the power of courts to compel the attendance of prisoners at civil trials. The court could find no legal basis for a district attorney to interfere in the granting of a writ of habeas corpus. "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 prisoners constitutional rights."
While district courts retain considerable discretion in granting or denying indigent litigants the ability to proceed in forma pauperis that discretion is not unlimited. "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.... Factual allegations need merely be plausible, and legal bases must only hold some arguable merit." The court remanded the case to the lower court for further proceedings. See: Lemmons v. Law Firm of Morris and Morris, 39 F.3d 264 (10th Cir. 1994).
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Related legal case
Lemmons v. Law Firm of Morris and Morris
| Year | 1994 |
|---|---|
| Cite | 39 F.3d 264 (10th Cir. 1994) |
| Level | Court of Appeals |
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 FOR THE TENTH CIRCUIT
39 F.3d 264; 1994 U.S. App.
November 1, 1994, Filed
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 93-C-1094-B). THOMAS R. BRETT
COUNSEL: Submitted on the briefs: *
* 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.
Tobin Don Lemmons, Pro se, Enid, Oklahoma.
JUDGES: Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.
OPINIONBY: McKAY
OPINION: [*266] 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 [**2] three years.
Mr. Lemmons, perceiving a deprivation of his constitutional rights, has brought this action under 42 U.S.C. 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. 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 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 1983.
We affirm the dismissal of Mr. Lemmons's claims against Morris & Morris and Mr. Monochello. Mr. Lemmons may be able to state a malpractice [**3] 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 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. "The actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, U.S. , 113 S. Ct. 2606, 2615 (1993). [**4] 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, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976)), cert. denied sub nom., Swepston v. Snell, 499 U.S. 976, 113 L. Ed. 2d 719, 111 S. Ct. 1622 (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, [**5] she, at best, acted pursuant to an administrative duty assigned to her office. Her position therefore accorded her only qualified immunity.
Qualified immunity shields government officials from suit for damages "insofar [*267] 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, 817, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see also Hilliard v. City and County of Denver, 930 F.2d 1516, 1518-19 (10th Cir.), cert. denied, 116 L. Ed. 2d 748, 112 S. Ct. 656 (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 [**6] 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, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984); Supreme Court of Virginia v. Consumers Union of America, Inc., 446 U.S. 719, 730-37, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (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 ("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 [**7] developed . . . ."). A plaintiff may therefore seek injunctive relief to guard against continuing (or future) governmental misconduct. See id. at 736 ("Prosecutors . . . are natural targets of 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 non-frivolous 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 [**8] 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.
Dismissal under 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 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, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (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 (noting that speculative claims often implicate important questions of law and cannot therefore be [**9] 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 1915(d) "even if the legal basis underlying the claim ultimately [*268] proves incorrect." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991) (emphasis added).
We cannot agree that Mr. Lemmons's arguments are so lacking in legal merit as to be deemed frivolous within the meaning of 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, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (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, 474 U.S. 814 (1986). [**10]
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, 58-59 (Okla. 1985) (authorizing extra-statutory discovery methods to allow prisoner to bring "meaningful" small claims action).
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 [**11] 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).
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. [**12] n1
n1 Unlawful retention of a petitioner in prison would certainly give rise to a valid constitutional claim. We note that Okla. Stat. Ann. tit. 21 835, 836 (West 1983) criminalize actions that perpetuate, without lawful excuse, the incarceration of a prisoner in defiance of a writ of habeas corpus.
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. A district court is therefore given discretion under 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. Factual allegations need merely be plausible, and legal bases [**13] must only hold some arguable merit.
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 [*269] 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.
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 [**14] 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 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.
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.
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 FOR THE TENTH CIRCUIT
39 F.3d 264; 1994 U.S. App.
November 1, 1994, Filed
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 93-C-1094-B). THOMAS R. BRETT
COUNSEL: Submitted on the briefs: *
* 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.
Tobin Don Lemmons, Pro se, Enid, Oklahoma.
JUDGES: Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.
OPINIONBY: McKAY
OPINION: [*266] 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 [**2] three years.
Mr. Lemmons, perceiving a deprivation of his constitutional rights, has brought this action under 42 U.S.C. 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. 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 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 1983.
We affirm the dismissal of Mr. Lemmons's claims against Morris & Morris and Mr. Monochello. Mr. Lemmons may be able to state a malpractice [**3] 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 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. "The actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, U.S. , 113 S. Ct. 2606, 2615 (1993). [**4] 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, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976)), cert. denied sub nom., Swepston v. Snell, 499 U.S. 976, 113 L. Ed. 2d 719, 111 S. Ct. 1622 (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, [**5] she, at best, acted pursuant to an administrative duty assigned to her office. Her position therefore accorded her only qualified immunity.
Qualified immunity shields government officials from suit for damages "insofar [*267] 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, 817, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); see also Hilliard v. City and County of Denver, 930 F.2d 1516, 1518-19 (10th Cir.), cert. denied, 116 L. Ed. 2d 748, 112 S. Ct. 656 (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 [**6] 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, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984); Supreme Court of Virginia v. Consumers Union of America, Inc., 446 U.S. 719, 730-37, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (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 ("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 [**7] developed . . . ."). A plaintiff may therefore seek injunctive relief to guard against continuing (or future) governmental misconduct. See id. at 736 ("Prosecutors . . . are natural targets of 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 non-frivolous 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 [**8] 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.
Dismissal under 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 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, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (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 (noting that speculative claims often implicate important questions of law and cannot therefore be [**9] 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 1915(d) "even if the legal basis underlying the claim ultimately [*268] proves incorrect." McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir. 1991) (emphasis added).
We cannot agree that Mr. Lemmons's arguments are so lacking in legal merit as to be deemed frivolous within the meaning of 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, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (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, 474 U.S. 814 (1986). [**10]
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, 58-59 (Okla. 1985) (authorizing extra-statutory discovery methods to allow prisoner to bring "meaningful" small claims action).
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 [**11] 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).
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. [**12] n1
n1 Unlawful retention of a petitioner in prison would certainly give rise to a valid constitutional claim. We note that Okla. Stat. Ann. tit. 21 835, 836 (West 1983) criminalize actions that perpetuate, without lawful excuse, the incarceration of a prisoner in defiance of a writ of habeas corpus.
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. A district court is therefore given discretion under 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. Factual allegations need merely be plausible, and legal bases [**13] must only hold some arguable merit.
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 [*269] 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.
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 [**14] 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 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.
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.