Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-90-1366-WTM. Walter T. McGovern, District Judge, Presiding.
Before: Eugene A. Wright and Melvin Brunetti, Circuit Judges, and Irma E. Gonzalez,*fn* District Judge. Opinion by Judge Wright; Dissent by Judge Brunetti.
In this qualified immunity case we decide whether a prisoner's First Amendment right to use his religious name in conjunction with his committed name on outgoing mail was clearly established in 1990. We also determine whether a prison notary public violated a clearly established law when she refused to attest to a document on which the inmate's signature did not match his identification.
Dawud Halisi Malik brought suit pursuant to 42 U.S.C. §§ 1983 and 1985, alleging that prison officials violated his statutory and constitutional rights by refusing to process mail and notarize documents on which he used his religious name. When he was first incarcerated his name was David Riggins. In 1978, he legally changed his name to Dawud Halisi Malik after converting to Sunni Muslim. He began to use his new name in 1988.*fn1
This is the second appeal that these parties have brought before us. We previously reversed a grant of summary judgment in favor of the prison officials, holding that Malik's use of his Muslim name was an expression of his religious faith, that he was entitled to use both his religious and his committed names, and that whether defendants violated this right was a factual dispute to be resolved at trial. Malik v. Brown, 16 F.3d 330, 335 (9th Cir. 1994) (Malik I). We expressly did not reach the issue of whether defendants should be accorded qualified immunity. Id. at 335 n.4.
On remand, the prison officials again moved for summary judgment, contending that they were entitled to qualified immunity. They also moved for summary judgment, contending that Malik's claims for prospective relief were moot. The district court denied the motions. The prison officials appeal.
A denial of qualified immunity is appealable immediately. Neely v. Feinstein, 50 F.3d 1502, 1505 (9th Cir. 1995); 28 U.S.C. § 1291. The denial of summary judgment as to prospective relief, however, is not a final order and is not inextricably intertwined with the issue of qualified immunity. See Swint v. Chambers County Comm., 131 L. Ed. 2d 60, 115 S. Ct. 1203, 1212 (1995). We have no appellate jurisdiction to review it.
The qualified immunity doctrine protects government officials from liability for civil 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, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Qualified immunity requires "a two-part analysis: 1) Was the law governing the official's conduct clearly established? 2) Under that law, could a reasonable officer have believed the conduct was lawful?" Act Up!/ Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993). We review de novo a denial of qualified immunity. Id.
To be clearly established the law must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). It is not necessary that the alleged act have been previously declared unconstitutional, as long as the unlawfulness was apparent in light of preexisting law. Id. "In the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established" for qualified immunity purposes, Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985), "'including decisions of state courts, other circuits, and district courts.'" Vaughan v. Ricketts, 859 F.2d 736, 739 (9th Cir. 1988).
Defendants argue that at the time Malik was punished for violating the prison's mail rules, only a single decision from another circuit, Salaam v. Lockhart, 905 F.2d 1168, 1170 (8th Cir. 1990) (Salaam II), cert. denied, 498 U.S. 1026, 112 L. Ed. 2d 669, 111 S. Ct. 677 (1991), was sufficiently on point to establish the law. Because Salaam was decided only one month before the alleged violations, they ...