Section 1983 Litigation

Third Edition

Martin A. Schwartz

Touro Law Center

Legal Editor

Kris Markarian

Federal Judicial Center

2014

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop educational materials for the judicial branch. While the Center regards the content as 

responsible and valuable, it does not reflect policy or recommendations of the Board of the Federal 

Judicial Center.
first printing
iii

Contents

Preface and Acknowledgments, xi

1. Introduction to § 1983 Litigation, 1

I. The Statute, 1

II. Historical Background, 1

III. Nature of § 1983 Litigation, 3

IV. Discovery, 4

V. Right to Trial by Jury, 5

VI. Jury Instructions, 5

2. Constitutional Claims Against Federal Officials: The Bivens

Doctrine, 7

I. Section 1983 Does Not Encompass Claims Against Federal Officials, 7

II. The Bivens Claim for Relief, 7

III. Law Governing Bivens Claims, 10

3. Section 1983: Elements of Claim, Functional Role, Pleading, and

Jurisdiction, 12

I. Elements of the § 1983 Claim, 12

II. Functional Role of § 1983, 13

III. Pleading § 1983 Claims, 13

 A. Pleading Provisions in Federal Rules of Civil Procedure, 14

 B. Pre-Twombly/Iqbal Supreme Court Precedent: Leatherman and

 Swierkiewicz, 14

 C. Iqbal/Twombly Plausibility Standard, 15

 D. Section 1983 Municipal Liability Claims, 19

 E. Claims Subject to Qualified Immunity, 20

 F. Conspiracy Claims, 20

 G. Pro Se Complaints, 21

IV. Federal Court Jurisdiction, 21

 A. Subject-Matter Jurisdiction, 21

 B. Rooker–Feldman Doctrine, 21

 C. Supplemental Jurisdiction, 24

 D. Removal Jurisdiction, 25

V. State Court Jurisdiction, 26
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4. Section 1983 Plaintiffs, 27

I. Persons Entitled to Bring Suit Under § 1983, 27

II. Standing, 27

5. Constitutional Rights Enforceable Under § 1983, 29

I. Generally, 29

 A. Introduction, 29

 B. Fourteenth Amendment Rights, 29

 C. Dormant Commerce Clause; Supremacy Clause, 29

 D. Congress’s Power to Preclude Constitutional Claims Under § 1983, 30

 E. Whether Plaintiff Has Alleged Constitutional Claim Under § 1983 Requires

 Interpretation of Constitution, Not § 1983, 32

 F. Conspiracies, 32

 G. State Law Rights Not Enforceable Under § 1983, 35

II. Due Process Rights: In General, 34

III. Procedural Due Process, 34

 A. Two-Step Approach, 34

 B. Property, 35

 C. Liberty: Prisoners’ Rights Cases, 36

 D. Liberty: “Stigma Plus” Claims, 36

 E. Procedural Safeguards, 37

 1. Eldridge Balancing, 37

 2. Parratt-Hudson Doctrine, 38

IV. Substantive Due Process Claims, 39

 A. Shocks the Conscience, 40

 B. District Attorney’s Office v. Osborne, 42

 C. Professional Judgment, 43

 D. DeShaney and Affirmative Duty Cases, 43

 1. Functional Custody: Foster Care; Public School, 44

 2. State-Created Danger, 45

V. Use of Force by Government Officials: Sources of Constitutional

 Protection, 45

 A. Unreasonable Force Claims Under the Fourth Amendment, 47

 1. Tennessee v. Garner, 48

 2. Graham v. Connor, 49

 3. Scott v. Harris, 50

 4. Specific Types of Force, 53

 5. Other Fourth Amendment Excessive Force Issues, 54

 B. Prisoner Excessive Force Claims Under Eighth Amendment, 57

 C. Pretrial Detainee Excessive Force Claims Under Fourteenth Amendment, 58

VI. Arrests and Searches, 60

 A. Arrests, 60

 B. Stop and Frisk, 61
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 C. Searches, 62

 D. Separate Analysis of Different Aspects of Officer’s Conduct (Muehler v. Mena), 62

VII. Malicious Prosecution Claims Under Fourth Amendment, 63

VIII. Conditions-of-Confinement Claims Under Eighth Amendment, 65

IX. First Amendment Claims, 68

 A. Public Employee Political Affiliation Claims, 68

 B. Public Employee Free-Speech Retaliation Claims, 69

 C. Prisoner Retaliation Claims, 72

 D. Retaliatory Prosecution and Retaliatory Arrest, 72

X. Equal Protection “Class-of-One” Claims, 73

6. Enforcement of Federal Statutes Under § 1983, 75

I. Enforcement of Federal “Rights”, 75

II. Specific Comprehensive Scheme Demonstrating Congressional Intent to

 Foreclose § 1983 Remedy, 78

III. Current Supreme Court Approach, 80

IV. Enforcement of Federal Regulations Under § 1983, 80

7. Color of State Law and State Action, 81

I. State and Local Officials, 81

II. State Action Tests, 82

 A. Symbiotic Relationship, 83

 B. Public Function, 83

 C. Close Nexus Test, 84

 D. Joint Action, 85

 E. Pervasive Entwinement, 85

8. Section 1983 Defendants, 87

I. State Defendants, 87

II. Interplay of “Person” and Eleventh Amendment Issues, 87

III. Municipal Defendants, 89

IV. State Versus Municipal Policy Maker, 89

V. Departments, Offices, and Commissions, 89

9. Causation, 91

10. Capacity of Claim: Individual Versus Official Capacity, 94
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11. Municipal Liability, 96

I. Fundamental Principles of § 1983 Municipal Liability, 96

 A. Claims for Prospective Relief, 96

 B. No Good Faith Immunity, But Immunity from Punitive Damages, 97

 C. Municipal Policies and Practices, 97

 D. Causation, 98

 E. Separation of Constitutional Violation and Municipal Liability Issues, 98

II. Officially Promulgated Policy, 98

III. Municipal Policy Makers, 99

 A. Policy-Making Authority Versus Discretionary Authority, 99

 B. State Versus Municipal Policy Maker, 102

IV. Custom or Practice, 103

V. Inadequate Training, 107

 A. City of Canton v. Harris, 107

 B. Connick v. Thompson, 109

 C. Canton and Connick, 112

VI. Inadequate Hiring, 112

VII. Pleading Municipal Liability Claims, 113

12. Liability of Supervisors, 115

13. Relationship Between Individual and Municipal Liability, 120

I. Bifurcation, 120

II. Los Angeles v. Heller, 120

 A. Circuit Court Applications of Heller, 120

 B. Officer Protected by Qualified Immunity Does Not Necessarily Require

 Dismissal of Municipal Liability Claim, 121

 C. Plaintiff Need Not Sue Both Officer and Municipality, 121

III. If Plaintiff Prevails on Personal-Capacity Claim, 121

IV. “Cost Allocation Scheme,” 121

14. State Liability: The Eleventh Amendment, 123

I. Relationship Between Suable § 1983 “Person” and Eleventh Amendment

 Immunity, 123

II. Eleventh Amendment Protects State Even When Sued by Citizen of

 Defendant State, 123

III. State Liability in § 1983 Actions, 124

 A. Section 1983 Does Not Abrogate Eleventh Amendment, 124

 B. Prospective Relief: Ex parte Young, 124

IV. Personal-Capacity Claims, 125
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V. Municipal Liability; the Hybrid Entity Problem, 126

VI. Eleventh Amendment Waivers, 126

VII. Eleventh Amendment Appeals, 127

15. Personal-Capacity Claims: Absolute Immunities, 128

I. Absolute Versus Qualified Immunity: The Functional Approach, 128

II. Judicial Immunity, 129

 A. Judicial Immunity Protects Judicial Acts Not in Complete Absence of All

 Jurisdiction, 129

 B. Injunctive Relief: Federal Court Improvements Act, 131

 C. Hearing Officers, Court Reporters, and Court Clerks, 131

III. Prosecutorial Immunity, 132

IV. Witness Immunity, 139

V. Legislative Immunity, 141

16. Personal Liability: Qualified Immunity, 143

I. Generally, 143

 A. Mistakes of Law and Fact, 144

 B. Advice of Counsel; Supervisor’s Order; Action Pursuant to Statute or 

 Ordinance, 145

II. Who May Assert Qualified Immunity? Private Party State Actors, 145

III. Clearly Established Federal Law, 147

 A. Hope v. Pelzer, 147

 B. Application of Qualified Immunity to Fourth Amendment Claims, 150

 C. Intent or Motive as Element of Constitutional Claims, 152

 IV. Procedural Aspects of Qualified Immunity, 152

 A. Affirmative Defense; Waiver, 152

 B. Complaint Pleading Standard, 153

 C. Burden of Persuasion, 154

 D. Motions to Dismiss, for Summary Judgment, and Judgment as Matter of Law, 154

 1. In General, 154

 2. Motion to Dismiss, 154

 3. Summary Judgment Motions Before and After Discovery; Discovery on

 Disputed Factual Issues, 155

 E. Role of Judge and Jury, 157

 F. Court Has Discretion Whether to First Decide Constitutional Issue or Proceed

 Directly to Qualified Immunity, 158

V. Appeals, 160
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17. Exhaustion of State Remedies: Preiser-Heck Doctrine, Notice of

 Claim, and Ripeness, 162

I. State Judicial Remedies: Parratt-Hudson Doctrine, 162

II. Preiser, Heck, and Beyond, 163

 A. Procedural Due Process and Conditions of Confinement, 163

 B. Claims for Damages (Heck v. Humphrey), 163

 C. Skinner v. Switzer, 164

 D. Heck and Accrual of Claim, 165

 E. Prison Disciplinary Sanctions, 165

 F. When Habeas Is Not Available, 166

III. State Administrative Remedies; PLRA, 166

 A. Plaintiffs Generally Not Required to Exhaust State Administrative Remedies, 166

 B. PLRA Exhaustion Requirement, 166

IV. Notice of Claim, 167

V. Ripeness, 168

18. Preclusion Defenses, 169

I. State Court Judgments, 169

II. Administrative Res Judicata, 169

III. Arbitration Decisions, 170

19. Statute of Limitations, 171

I. Limitations Period, 171

II. Relation Back, 171

III. Accrual, 173

IV. Tolling, 176

20. Survivorship and Wrongful Death, 177

I. Survivorship, 177

II. Wrongful Death, 177

21. Abstention Doctrines, 178

I. Pullman Abstention; State Certification Procedure, 178

II. Younger Abstention, 180

III. Colorado River Abstention, 182

IV. Burford Abstention, 184

V. Domestic Relations Doctrine, 185

VI. Tax Injunction Act, 185
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22. Monetary Relief, 187

I. Nominal and Compensatory Damages, 187

 A. Causation, 188

 B. Rule Against Double Recovery, 188

 C. Duty to Mitigate Damages, 189

II. Punitive Damages, 189

III. Release-Dismissal Agreements, 191

IV. Indemnification, 191

V. Prison Litigation Reform Act, 192

23. Attorneys’ Fees, 194

I. Section 1988 Fee Litigation, 194

II. Prevailing Parties, 194

 A. Prevailing Plaintiffs Presumptively Entitled to Fees, 194

 B. Double Standard: Prevailing Defendants Presumptively Not Entitled to Fees, 195

 C. Plaintiff Must Obtain Some Judicial Relief, 195

III. Computation of Fee Award: Lodestar Adjustment Method, 197

IV. Other Fee Issues, 200

 A. Eleventh Amendment Immunity, 200

 B. Offer of Judgment, 200

 C. Settlement of Merits and Fees, 201

 D. Explanation of Fee Determination, 201

Notes, 203

Table of Cases (alphabetical), 309

Table of Cases (by court), 345

Appendix: Model Instructions, 383

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Preface and Acknowledgments

This monograph analyzes the legal principles and issues that arise in litigation under 42 U.S.C. § 1983, the statute for redressing constitutional and 

federal statutory violations by state and local officials, by municipalities, 

and by private-party state actors, and the case law applying those principles. Research for this edition concluded with the October 2013 Supreme 

Court term ending June 30, 2014, and covers courts of appeals decisions 

reported through June 1, 2014. Valuable authorities are cited in the endnotes to the text.

The author gratefully acknowledges the valuable assistance and cooperation of Kris Markarian, legal editor at the Federal Judicial Center. The 

author also expresses appreciation for the valuable manuscript review and 

suggestions provided by Judge James C. Francis IV (Southern District of 

New York).

1

1. Introduction to § 1983 Litigation

I. The Statute 

Section 1983 of Title 42 of the U.S. Code is a vital part of American law. 

The statute authorizes private parties to enforce their federal constitutional rights, and some federal statutory rights, against municipalities, state 

and local officials, and other defendants who acted under color of state law. 

Section 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of Columbia, 

subjects, or causes to be subjected, any citizen of the United States or 

other person within the jurisdiction thereof to the deprivation of any 

rights, privileges, or immunities secured by the Constitution and laws, 

shall be liable to the party injured in an action at law, suit in equity, or 

other proper proceeding for redress, except that in any action brought 

against a judicial officer for an act or omission taken in such officer’s 

judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the 

purposes of this section, any Act of Congress applicable exclusively to 

the District of Columbia shall be considered to be a statute of the District of Columbia.1

II. Historical Background

When interpreting § 1983, the Supreme Court has considered congressional intent, common-law principles, policy concerns, and principles of 

federalism. The Supreme Court has relied on the historical background 

behind the statute in several major decisions interpreting § 1983.2 Congress passed 42 U.S.C. § 1983 in 1871 as § 1 of the “Ku Klux Klan Act.” 

The statute, however, did not emerge as a tool for checking abuses by state 

officials until 1961, when the Supreme Court decided Monroe v. Pape.

3

 In 

Monroe, the Court articulated three purposes for passage of the statute: 

(1) to “override certain kinds of state laws”; (2) to provide “a remedy where 

state law was inadequate”; and (3) “to provide a federal remedy where the 

state remedy, though adequate in theory, was not available in practice.”4

Monroe resolved two important issues that allowed 42 U.S.C. § 1983 to 

become a powerful statute for enforcing rights secured by the Fourteenth 
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Amendment. First, the Court held that actions taken by state governmental officials in carrying out their official responsibilities, even if contrary 

to state law, were nevertheless actions taken “under color of law.”5 In the 

course of reaching this conclusion, the Court established the important 

principle that § 1983 “should be read against the background of tort liability that makes a [person] responsible for the natural consequences of his 

actions.”6 Second, the Court held that individuals who assert a violation 

of federally protected rights have a federal remedy under § 1983 even if 

the officials’ actions also violated state law for which the state affords a 

remedy.7 In short, the Court in Monroe held that Congress enacted § 1983 

to provide an independent federal remedy supplemental to available state 

law remedies. The federal judicial forum was necessary to vindicate federal rights because, according to Congress in 1871, state courts could not 

be counted on to protect Fourteenth Amendment rights because of their 

“prejudice, passion, neglect, [or] intolerance.”8 The Supreme Court has 

identified the policies underlying § 1983 as including compensating persons whose federally protected rights are violated by action under color of 

state law, and preventing future violations.9

With Monroe opening the door to the federal courthouse, constitutional 

litigation against state and local officials developed. Later, plaintiffs seeking 

monetary damages sued not only state and local officials, but began to sue 

cities and counties as well.10 They also sought prospective injunctive relief 

against state officials. Ultimately, the federal courts became the principal 

forum for bringing state and local governmental policies and practices into 

compliance with federal law.

In Monell v. Department of Social Services,

11 the Supreme Court overruled the part of Monroe that had found that Congress did not intend to 

subject municipal entities to liability under § 1983. Employing a “fresh 

analysis” of the legislative history of the Civil Rights Act of 1871, the Court 

found that Congress intended to subject municipal entities to liability under § 1983, though not on the basis of respondeat superior. Monell held 

that Congress intended that municipal entities would be liable under 

§ 1983 only when an official’s unconstitutional action carried out a municipal policy or practice.12

In Hudson v. Michigan,13 the Supreme Court acknowledged that § 1983 

had undergone a “steady expansion” since the Court’s 1961 decision in 

Monroe, including the recognition of municipal liability claims in Monell
Introduction

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and the availability of attorneys’ fees under 42 U.S.C. § 1988(b), the Civil 

Rights Attorney’s Fees Awards Act of 1976.14 Hudson rejected the exclusionary rule for violations of the Fourth Amendment knock-and-announce rule, in part because a § 1983 damages claim provided an adequate alternative remedy.15 The Court emphasized the importance of the 

§ 1988 attorney’s fee remedy, namely, that “[c]itizens and lawyers are much 

more willing to seek relief in the courts for police misconduct”16 and other 

constitutional violations. The Court in Hudson affirmed the importance 

of both the federal § 1983 remedy for unconstitutional state action, and 

§ 1988’s authorization of attorneys’ fees in § 1983 actions.

III. Nature of § 1983 Litigation

A wide array of claimants file § 1983 lawsuits in federal and state courts. 

These claimants include alleged victims of police misconduct; prisoners; 

present and former public employees and licensees; property owners; and 

applicants for and recipients of public benefits. Claimants may name as 

defendants state and municipal officials, municipal entities, and private 

parties who acted under color of state law.

Section 1983 litigation often requires courts to examine complex, multifaceted issues. Courts may have to interpret the federal Constitution, federal statutes (including § 1983 itself), and even state law. In addition, even 

if a plaintiff establishes a violation of a federally protected right, she may 

not necessarily obtain relief. Courts may deny relief after resolving numerous other issues: jurisdictional questions, such as the Rooker-Feldman

doctrine,17 the Eleventh Amendment, standing, and mootness; affirmative 

defenses, such as absolute and qualified immunity; procedural issues, such 

as the statute of limitations and preclusion; and the various abstention 

doctrines.

The three most recurring issues in § 1983 cases are (1) whether a plaintiff has established a violation of a federal constitutional right; (2) whether 

qualified immunity protects an official from personal monetary liability; 

and (3) whether a plaintiff has established a basis for imposing municipal 

liability through enforcement of a municipal policy, a municipal practice, 

or a decision of a municipal policy maker.

The last stage of a § 1983 action is normally an application by the 

prevailing party for attorneys’ fees under the Civil Rights Attorney’s Fees 

Awards Act of 1976, 42 U.S.C. § 1988(b). Section 1988 fee applications 
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4

often generate a wide range of issues, including whether the plaintiff was a 

“prevailing party”; whether “special circumstances” justify the courts’ denying fees to a prevailing plaintiff; whether a prevailing defendant should 

be awarded fees; what constitutes a reasonable hourly rate; what constitutes 

a reasonable number of billable hours; and whether the circumstances justify an upward or downward departure from the “lodestar” (the number of 

reasonable hours times the reasonable hourly market rates for lawyers in 

the community with comparable background and experience).18

Each year the federal courts face dockets filled with huge numbers of 

§ 1983 cases. The lower court decisional law is voluminous. Federal district 

courts should be aware that there might be conflicts in approaches among 

the circuits.

IV. Discovery

There are frequently sharp factual disputes in § 1983 actions alleging constitutional violations. For example, in § 1983 excessive force claims, the 

plaintiffs and the defendant-officers typically assert very different versions 

of the encounter. In § 1983 First Amendment retaliation cases, the defendant will almost certainly deny having acted with a retaliatory motive. Factual disputes are much less frequent in cases alleging violations of federal 

statutory rights.

As in other federal court civil cases presenting disputed issues of material facts, pretrial discovery can play an important role in a § 1983 action.19

There are two major issues that present unique discovery considerations 

in § 1983 actions. First, because qualified immunity is not only an immunity from liability, but also an immunity “from suit,” that is, from the 

burdens of litigation, the Supreme Court has directed the district courts to 

decide qualified immunity, whenever possible, as a matter of law, usually 

on a motion for summary judgment, pretrial and even pre-discovery.20 The 

reality, however, is that it is often not possible to determine whether the 

defendant violated clearly established federal law until disputed issues of 

fact have been resolved. The Third Circuit has quoted the author’s position 

that “‘[t]he overwhelming problem [with qualified immunity] is the Supreme Court’s insistence that the [qualified] immunity defense be decided 

as a matter of law, when the reality is that factual issues must frequently be 

resolved in order to determine whether the defendant violated clearly established federal law.’”21 Supreme Court and lower federal court decisions 
Introduction

5

do allow carefully tailored discovery addressed to factual issues pertinent 

to the qualified immunity defense.22

The second discovery issue deserving special attention is evidentiary 

privileges.23 Two privilege issues of particular importance are the applications of the attorney–client privilege to governmental entities and governmental officials and the various governmental privileges. The extensive decisional law concerning governmental privileges generally requires 

weighing the need for confidentiality and secrecy against the need of the 

information and evidence for litigation.24

V. Right to Trial by Jury

The Seventh Amendment guarantees the right to a jury trial in suits “at 

common law, where the value in controversy shall exceed twenty dollars.” 

Despite the reference to suits “at common law,” it is settled that the “right to 

a jury trial includes more than common law forms of action recognized in 

1791” when the Seventh Amendment was adopted, and “extends to causes 

of action created by Congress.”25 The reference to “common law” suits refers to suits for legal, i.e., monetary, as opposed to equitable relief.26

It is well established that there is a right to a jury trial in federal court 

§ 1983 actions when a claim is asserted in excess of $20 for compensatory 

or punitive damages.27 Because the Seventh Amendment applies to claims 

in excess of $20, if the complaint allegations entitle the plaintiff “to no 

more than nominal damages, the Seventh Amendment will not be applicable. . . .”28 There is no right to a jury trial in a § 1983 action in which only 

equitable relief is sought.29 When a federal court plaintiff seeks both legal 

and equitable relief, there is a right to a jury trial on the claim for legal relief, which normally should be tried first.30

VI. Jury Instructions

Because § 1983 litigation is frequently multifaceted and complex, the jury 

instructions may encompass a wide range of issues and run for many pages. In addition to the general instructions used for civil actions, such as 

the preponderance-of-the-evidence standard, instructions are needed to 

explain the function of § 1983, the elements of the § 1983 claim for relief, the elements of the particular constitutional claims, causation, and 

state action. Instructions may also be necessary for such issues as municipal liability, the liability of supervisors, and nominal, compensatory and 
Section 1983 Litigation

6

punitive damages. The district court’s challenge is to provide the jury with 

instructions that are complete and accurate yet in language lay jurors can 

understand.31 The Fourth Circuit, in a § 1983 excessive force case, opined 

that “what good instructions often do [is] let counsel argue factually in 

terms of a legal standard, rather than having the judge make counsel’s particularized arguments for them.”32 The court said that it has left the choice 

between generality and specificity in the charge to the sound discretion of 

the trial court.33

The Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits have 

promulgated model jury instructions for civil actions, including for § 1983 

actions. The fact that the district court employed a model instruction from 

its own circuit does not preclude a determination on appeal that the instruction was erroneous.34 The Seventh Circuit stated that district judges 

have an obligation to give instructions that are accurate on the law, and 

may give instructions differing from pattern instructions.35 It cautioned, 

however, that “when a judge varies from the pattern instructions, he should 

do so to make things clearer for the jury, not more confusing.”36

A sampling of model circuit court jury instructions for § 1983 actions 

is contained in the Appendix.
7

2. Constitutional Claims Against

Federal Officials: The Bivens Doctrine

I. Section 1983 Does Not Encompass Claims Against Federal Officials

An essential element of a § 1983 claim for relief is that the defendant acted under color of state law.37 State and local officials who carry out their 

official responsibilities act under color of state law, as do private parties 

who engage in state action.38 Federal officials, however, act under color of 

federal law, not state law, and thus are not suable under § 1983.39

II. The Bivens Claim for Relief

Congress has not enacted a counterpart to § 1983 authorizing a claim for 

relief based on constitutional violations by federal officials. To fill this remedial gap, the Supreme Court, in the 1971 landmark decision, Bivens v. 

Six Unknown Named Agents,

40 recognized an implied claim for damages 

for Fourth Amendment violations by federal law enforcement officers. The 

Bivens claim is a personal-capacity claim against the officer(s) responsible 

for the constitutional violation. 41 Relying on Bivens, the Court held, in Davis v. Passman,

42 that a claim for damages could be asserted against a federal 

official based upon an alleged violation of the equal protection principles 

of the Fifth Amendment.43

The Court stressed, in Bivens and Davis, that the federal judiciary has 

the primary responsibility for enforcing federal constitutional rights, and 

that historically damages have been considered the “ordinary remedy for 

an invasion of personal interests in liberty.”44 It expressed concern that failure to recognize the Bivens damages remedy against a federal official would 

leave the plaintiff without a remedy, because constitutional claimants like 

Webster Bivens and Shirley Davis did not have claims for prospective relief, 

and could not seek damages against the United States or a federal governmental agency because of sovereign immunity.45 The Court acknowledged, 

however, that the Bivens remedy might be denied either when Congress 

created an “equally effective” alternative remedy, or when “special factors 

counsel[ ] hesitation in the absence of affirmative action by Congress.”46

In 1980, in Carlson v. Green,

47 the Supreme Court recognized a damages 

remedy under the Bivens doctrine in a suit by the administratrix of the 
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estate of a deceased federal prisoner. The complaint alleged that the failure 

of federal prison officials to provide the prisoner adequate medical care 

violated the Eighth Amendment’s prohibition against cruel and unusual 

punishment. The Court recognized the Bivens claim even though the prisoner had an alternative remedy under the Federal Tort Claims Act. The 

Court in Carlson found that (1) Congress did not intend for the FTCA to 

be the exclusive remedy; and (2) the Bivens remedy was more effective than 

the FTCA remedy.48

Carlson is the last Supreme Court decision holding that the plaintiff had 

a right to assert a claim under the Bivens doctrine. In a series of decisions 

dating back to 1983, the Court, in each case, rejected the availability of the 

Bivens claim for relief. Following is a brief summary of these post-Carlson

decisions.

In 1983, in Bush v. Lucas,

49 the Court held that a federal government 

employee could not assert a First Amendment retaliation Bivens claim 

because Congress created an elaborate alternative administrative remedy, 

even though this alternative remedy could not afford complete relief. The 

existence of this administrative remedy was “a special factor counselling 

against the judicial recognition of a damages remedy under the Constitution in this context.”50 That same year, in Chappell v. Wallace,

51 the Court 

held that navy personnel could not assert Bivens claims based upon allegations that their superior officers’ performance evaluations and imposition 

of penalties were racially motivated. The Court found that the unique relationship between inferior and superior military officers, and the comprehensive internal system of military justice, were special factors justifying 

denial of the Bivens remedy.

In 1987, in United States v. Stanley,

52 the Court denied a Bivens remedy 

to a former serviceman who alleged that, as part of a military experiment 

he had been administered LSD without his consent, causing him serious 

mental disabilities and injuries. The Court extended Chappell by denying 

the Bivens remedy to any claim arising out of or incident to military service, not just claims by inferior officers against their superiors.

In 1988, the Court held, in Schweiker v. Chilicky,

53 that plaintiffs who 

claimed that their Social Security benefits were terminated in violation of 

their due process rights could not assert Bivens claims because Congress 

created alternative comprehensive administrative and judicial review remedies. As in Lucas, the existence of these alternative remedies was a “special 
The Bivens Doctrine

9

factor” justifying denial of the Bivens remedy. The Court spelled out that, 

since Carlson, it has “responded cautiously to suggestions that Bivens remedies be extended into new contexts,” and concluded that Congress was 

better suited than the judiciary to formulate remedies for constitutional 

violations.54 This of course was a major shift in judicial philosophy from 

that articulated in Bivens that the judiciary has primary responsibility for 

formulating remedies for constitutional violations. This shift in judicial 

philosophy underscores the separation of powers issue underlying the Bivens doctrine.

In 1994, in FDIC v. Meyer,

55 the Court held that a Bivens claim may be 

asserted only against a federal official, not against a federal agency, because 

the purpose of the Bivens remedy is to deter federal officers—not federal 

agencies—from acting unconstitutionally. In 2001, in Correctional Services 

Corp. v. Malesko,

56 the Court reasoned that “[i]f given the choice, plaintiffs 

would sue a federal agency instead of an individual [official] who could 

assert qualified immunity,” and that this stratagem would thwart the deterrent effect of the Bivens remedy.57

Relying heavily on Meyer, the Court in Malesko held that a federal prisoner could not assert a Bivens claim against a private operator of a halfway 

house. The Court again stressed its consistent refusal to extend Bivens liability to new contexts or new defendants. In 2007, in Wilkie v. Robbins,

58

the Court rejected a Bivens claim by landowners who alleged that government officials unconstitutionally interfered with their property rights. The 

Court again said that Congress was in a far better position than the Court 

to determine the issue of appropriate remedies.59

In 2012, in Minneci v. Pollard,

60 the Court held that a federal prisoner 

could not assert an Eighth Amendment claim of denial of adequate medical care against employees of a private company that operated a federal 

prison. The Court found that the existence of adequate state tort remedies justified rejection of the Eighth Amendment Bivens remedy.61 Minneci

marked the first time that the Court relied upon the availability of state

remedies to justify denial of the Bivens remedy.62

In Minneci the Court articulated its present two-step approach for determining whether to recognize a Bivens remedy:

1. The Court first asks ‘”whether any alternative, existing process for 

protecting the [constitutionally recognized] interest amounts to a 
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10

convincing reason for the Judicial Branch to refrain from providing 

a new and freestanding remedy in damages.’”63

2. Even in the absence of an alternative remedy, the Court should determine whether “special factors counselling hesitation” justify rejection of the Bivens remedy.64

The Supreme Court has thus come full circle since the Bivens-Davis-Carlson trilogy. While the trilogy treated the damages remedy for constitutional violations by federal officials as an “ordinary,” presumptively available 

remedy, the post-Carlson cases treat the damages remedy as a presumptively unavailable remedy.65

III. Law Governing Bivens Claims 

When a federal court plaintiff is entitled to assert a Bivens claim for money 

damages for an alleged constitutional violation by a federal official, normally the same procedures and legal principles applied in § 1983 actions 

will also apply in the Bivens suit. In Ashcroft v. Iqbal,

66 the Supreme Court 

stated that “[i]n the limited settings where Bivens does apply, the implied 

cause of action is the ‘federal analog to suits brought against state officials 

under . . . 42 U.S.C. § 1983.’”67 The Court made clear in Iqbal that the same 

pleading standards, the rule against respondeat superior liability, and principles of liability for supervisory officials govern both § 1983 and Bivens

actions. In fact, many years before the Supreme Court’s decision in Iqbal, 

Judge Henry J. Friendly, writing for the Second Circuit, discerned “the general trend in the appellate courts to incorporate § 1983 law into Bivens

suits.”68

Most significantly, the Supreme Court has consistently held that the 

same common-law immunities available to state and local officials sued 

for damages under § 1983 may be asserted by federal officials sued under 

the Bivens doctrine.69 The Court found it “untenable to draw a distinction 

for purposes of immunity law between suits brought against state officials 

under § 1983 and suits brought directly under the Constitution against 

federal officials.”70 In fact, the Court commonly applies the same qualified 

immunity precedents and principles in both § 1983 and Bivens actions, 

and cites its qualified immunity precedents interchangeably in § 1983 and 

Bivens suits.71

Lower federal courts hold that the Heck doctrine72 (which holds that a 

§ 1983 challenge to the validity of a conviction or sentence is not cogniza-
The Bivens Doctrine

11

ble until the conviction or sentence has been overturned73) applies as well 

to Bivens claims,74 and that the same state limitations period that governs 

§ 1983 claims75 also governs Bivens claims.76

One area of difference is the law governing survivorship of claim. The 

Supreme Court holds that in § 1983 actions, survivorship is governed by 

state survivorship law, so long as the state law is not inconsistent with the 

policies of § 1983.77 In Carlson, however, the Court held that whether a 

Bivens claim survives the death of the plaintiff is governed not by state law, 

but by a uniform rule that the claim survives the plaintiff’s death.78
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3. Section 1983: Elements of Claim,

Functional Role, Pleading, and Jurisdiction

I. Elements of the § 1983 Claim

Section 1983 authorizes the assertion of a claim for relief against a person 

who, acting under color of state law, violated the claimant’s federally protected rights. The Supreme Court has identified two elements of a § 1983 

claim. The plaintiff must allege both (1) a deprivation of a federal right, 

and (2) that the person who deprived the plaintiff of that right acted under 

color of state law.79 (See infra Appendix, Model Instruction 1: Elements of 

Claim–Action Under Color of State Law.) In the author’s view, there are, 

in fact, at least four major elements for a § 1983 claim.80 The plaintiff must 

establish

1. conduct by a “person”;

2. who acted “under color of state law”;

3. proximately causing;

4. a deprivation of a federally protected right.

In addition, if the plaintiff is seeking to establish municipal liability, she 

must show that the deprivation of her federal right was attributable to the 

enforcement of a municipal custom or policy.81 The plaintiff bears the burden of establishing each element of the claim for relief by a preponderance 

of the evidence.82

Defendant’s State of Mind. The text of § 1983 does not require the plaintiff to prove that the defendant-official acted with any particular state of 

mind.83 The Supreme Court holds that § 1983 does not “contain a stateof-mind requirement” and is not limited “to intentional deprivations of 

constitutional rights.”84

However, the particular constitutional right asserted by the plaintiff 

may require the plaintiff to establish that the defendant acted with a particular state of mind. For example, a complaint stating a violation of the 

substantive due process component of the Fourteenth Amendment or a 

violation of procedural due process will require the plaintiff to establish 

that a state or local official intentionally or deliberately caused a deprivation of life, liberty, or property; negligent conduct will not suffice to estab-
Claims, Function, Pleading, and Jurisdiction

13

lish a due process violation.85 A complaint raising racial or gender-based 

discrimination will invoke heightened judicial scrutiny only if a plaintiff 

establishes intentional discrimination.86 A prisoner’s complaint asserting 

the denial of adequate medical care under the Eighth Amendment requires 

a prisoner to demonstrate that he was a victim of deliberate indifference 

to a serious medical need.87 In other words, medical malpractice does not 

establish a constitutional violation merely because the plaintiff is a prisoner.88 Because plaintiffs may seek enforcement of a wide range of federal 

constitutional rights under § 1983,89 the federal court should evaluate each 

claim to determine whether it requires the plaintiff to prove that the defendant acted with a particular state of mind.

II. Functional Role of § 1983

Section 1983 does not itself create or establish any federally protected right. 

Instead, it creates a cause of action for plaintiffs to enforce federal rights 

created elsewhere—federal rights created by the federal Constitution or, in 

some cases, by other federal statutes.90 In other words, § 1983 fulfills the 

procedural or remedial function of authorizing plaintiffs to assert a claim 

for relief against a defendant who, acting under color of state law, violated 

the plaintiffs’ rights guaranteed by the federal Constitution or, in some 

cases, by a federal statute other than § 1983. In addition, § 1983 provides 

the exclusive available federal remedy for violations of federal constitutional rights under color of state law. Thus, plaintiffs may not avoid the 

limitations of a § 1983 claim for relief by asserting a claim directly under 

the Constitution.91

Section 1981 claims. The Supreme Court, in Jett v. Dallas Independent 

School District, held that § 1983 is the exclusive remedy for violations of 

42 U.S.C. § 1981 under color of state law.92 The great weight of appellate 

authority holds that the Civil Rights Act of 1991, in amending § 1981(c), 

did not alter Jett’s holding.93

III. Pleading § 1983 Claims

Building upon Bell Atlantic Corp. v. Twombly,

94 the Supreme Court’s decision in Ashcroft v. Iqbal,95 resolved that federal court civil complaints filed 

under § 1983, like all other federal court civil complaints, must contain 

factual allegations, not mere conclusions, constituting a “plausible,” and 

not merely a speculative or possible, claim for relief.
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14

The decision in Iqbal, however, did not overrule, at least explicitly, the 

Court’s prior precedents concerning pleading standards for federal court 

civil rights claims. This section sketches out the applicable pleading provisions in the Federal Rules of Civil Procedure; reviews the relevant preIqbal-Twombly Supreme Court precedents; analyzes Twombly and Iqbal; 

and analyzes the pleading standards for several specific § 1983 claims, 

namely municipal liability claims, personal-capacity claims subject to 

qualified immunity, conspiracy claims, and pro se complaints.

A. Pleading Provisions in Federal Rules of Civil Procedure

Federal Rule of Civil Procedure 8(a) provides that the complaint must 

set forth “(1) a short and plain statement of the grounds on which the 

court’s jurisdiction depends, (2) a short and plain statement of the 

claim showing that the pleader is entitled to relief, and (3) a demand 

for judgment for the relief the pleader seeks.” Federal Rule of Civil 

Procedure 9 requires that certain issues be pleaded “with particularity,” e.g., fraud and mistake. Rule 9(a) provides that “[m]alice, intent, 

knowledge, and other conditions of mind of a person may be averred 

generally.” State-of-mind issues arise in some § 1983 cases depending 

on the particular constitutional claim alleged, such as intentional race 

discrimination under the Equal Protection Clause of the Fourteenth 

Amendment and prisoner Eighth Amendment challenges to conditions 

of confinement.96

B. Pre-Twombly/Iqbal Supreme Court Precedent: Leatherman and

Swierkiewicz

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination 

Unit,

97 the Supreme Court in 1993 rejected a “heightened” pleading requirement for § 1983 municipal liability claims because Rules 8 and 9 

do not authorize it.98 The Court held that the generally applicable “notice pleading” standard set forth in the Federal Rules of Civil Procedure 

governs § 1983 municipal liability claims. The Fourth Circuit observed 

that the notice pleading standard “is by no means onerous; instead, it 

is designed to ensure that the complaint ‘will give the defendant fair 

notice of what the plaintiff’s claim is and the grounds upon which it 

rests.’”99

In Swierkiewicz v. Sorema, N.A.,

100 the Supreme Court in 2002 rejected a heightened pleading standard for Title VII (of the Civil Rights Act 
Claims, Function, Pleading, and Jurisdiction

15

of 1964) and Age Discrimination in Employment Act (ADEA) claims. 

As in Leatherman, the Court determined that the notice pleading 

standard created by Rule 8 applies to Title VII and ADEA claims. The 

Court’s decisions in Leatherman and Swierkiewicz strongly supported 

the conclusion that notice pleading applied to all § 1983 claims.101

C. Iqbal/Twombly Plausibility Standard

In Bell Atlantic Corp. v. Twombly,102 an antitrust case, the Supreme Court 

ruled that although Federal Rule of Civil Procedure 8(a)(2) notice 

pleading does not require “detailed factual allegations,” the complaint 

must provide some factual allegations of the nature of the claim and 

the grounds on which the claim rests. The plaintiff must plead “more 

than labels and conclusions, and a formulaic recitation of the elements 

of a cause of action will not do.”103 The “[f]actual allegations must be 

enough to raise a right to relief above the speculative level” to a “plausibility” level.104 The Court stressed that the district court’s ability to 

manage discovery does not diminish the plaintiff’s burden of pleading 

facts that constitute a plausible claim. Thus,

[i]t is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through “careful case management,” given the common 

lament that the success of judicial supervision in checking discovery abuse has been on the modest side.105

The Court also ruled that federal courts should no longer rely on the 

frequently quoted statement from Conley v. Gibson106

that a complaint should not be dismissed for failure to state a claim 

unless it appears beyond doubt that the plaintiff can prove no set of 

facts in support of his claim which would entitle him to relief. . . .107

The Court explained why the Conley standard should be retired:

[A]fter puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an 

incomplete, negative gloss on an accepted pleading standard: once 

a claim has been stated adequately, it may be supported by showing 

any set of facts consistent with the allegations in the complaint.108

Although Twombly could be read as imposing some form of “heightened” pleading requirement, the Supreme Court disavowed any intent 
Section 1983 Litigation

16

to do so. The Court acknowledged that “a complaint attacked by a Rule 

12(b)(6) motion to dismiss does not need detailed factual allegations” 

and that it was not requiring “heightened fact pleading of specifics, but 

only enough facts to state a claim to relief that is plausible on its face.”109

Furthermore, the Court in Twombly did not expressly state that it was 

overruling or modifying its earlier decisions in Leatherman and Swierkiewicz.

In fact, two weeks after its decision in Twombly, the Court, in Erickson 

v. Pardus,

110 applied notice pleading to a pro se prisoner’s § 1983 Eighth 

Amendment medical treatment claim. Citing, inter alia, Twombly and 

Swierkiewicz,the Court in Erickson held that the § 1983 complaint satisfied Rule 8’s notice pleading standard. The Eighth Circuit had dismissed the complaint on the ground that it was conclusory, but the 

Supreme Court summarily reversed.

The complaint in Erickson alleged that the defendant doctor’s “decision to remove [plaintiff] from his prescribed hepatitis C medication 

was ‘endangering his life,’” and that “[plaintiff’s] medication was withheld ‘shortly after’ [plaintiff] had commenced a treatment program that 

would take one year, that he was ‘still in need of treatment for this disease,’ and that the prison officials were in the meantime refusing to provide treatment.”111 The Supreme Court held that these allegations were 

sufficient to satisfy Rule 8 of the Federal Rules of Civil Procedure.112 In 

reaching this conclusion the Court took into account that the plaintiff 

filed his complaint pro se and that pro se pleadings “‘however inartfully 

pleaded, must be held to less stringent standards than formal pleadings 

drafted by lawyers.’”113

Because Twombly was an antitrust case, there was some uncertainty 

whether the Court’s decision was intended to be limited to antitrust 

cases or to be applied to federal court civil complaints generally.114 The 

Court resolved that issue in Ashcroft v. Iqbal,

115 where the Court held 

that the Twombly pleading standards govern all federal court civil complaints, thus including those filed under § 1983 and the Bivens116 doctrine. The Court, dividing 5–4, held that the plaintiff’s Bivens claims 

against former Attorney General Ashcroft and FBI Director Mueller 

did not contain factual allegations constituting a “plausible” claim that 

these supervisory officials formulated an unconstitutional discriminatory policy.117
Claims, Function, Pleading, and Jurisdiction

17

The Court in Iqbal rejected the plaintiff’s argument that Twombly

should be limited to antitrust complaints. It found that Twombly was 

based upon an interpretation of Federal Rule of Civil Procedure 8, and 

thus applies in all civil cases,118 including § 1983 and Bivens suits. Iqbal

clearly established that § 1983 complaints must contain factual allegations, not mere legal conclusions, and that the factual allegations must 

constitute a plausible —and not merely possible or speculative—claim 

for relief. “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged. . . . Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not suffice.”119 In other words, legal conclusions must be supported by factual allegations. “Rule 8 . . . does not unlock the doors of 

discovery for a plaintiff armed with nothing more than conclusions.”120

Whether the factual allegations constitute a plausible constitutional 

claim is “context-specific,”121 dependent upon the particular “constitutional provision at issue”122 and the nature of the plaintiff’s theory of 

liability. For example, in Iqbal the complaint asserted a claim that the 

defendants, who were supervisory officials, formulated a policy that discriminated against post-9/11 detainees because of their race, religion, or 

national origin. To determine whether the complaint stated a plausible 

claim against these supervisory officials, the Court had to consider the 

standards for imposing § 1983 and Bivens liability against a supervisor for wrongs directly inflicted by subordinate officials.123 The Court 

found that the complaint’s allegations that the defendants adopted the 

contested policy were too conclusory to constitute a plausible claim.

In reaching this conclusion, the Court ruled that when constitutional claims are premised on a defendant’s allegedly illicit purpose, the district court should consider whether there is a more plausible explanation for the defendant’s actions than the one alleged in the complaint. 

The majority found that the plaintiff did not allege a plausible claim 

that the defendants adopted the contested policy with the intent to discriminate on the basis of race, religion, or national origin. The Court 

found that the more plausible explanation was that the policy was adopted to further national security.

Reiterating an important theme articulated in Twombly, the Court 

in Iqbal emphasized that when the sufficiency of complaint allegations 
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18

are challenged on a motion to dismiss, it is irrelevant that the district 

court may be able to carefully control discovery.124 This is especially 

so when government officials assert qualified immunity, because this 

immunity is designed in part to shield officials from the demands of 

discovery, which divert their time and energy from their official responsibilities.125 The “catch-22” problem for some plaintiffs is that they often 

need discovery to comply with the “plausibility” standard, but their inability to meet the plausibility standard will prevent them from reaching the discovery stage.

The Court in Iqbal also interpreted Federal Rule of Civil Procedure 

9(b), which requires particularity of pleading of “fraud or mistake,” but 

allows “[m]alice, intent, knowledge, and other conditions of a person’s 

mind [to] be alleged generally.” The Court construed this rule as “merely excus[ing] a party from pleading discriminatory intent under an elevated pleading standard. It does not” obviate the requirement of pleading factual allegations supporting a plausible claim.126 Thus, conclusory 

allegations of discriminatory intent, without supporting factual allegations, will not be accepted as true on a motion to dismiss, and did not 

save Iqbal’s complaint against Ashcroft and Mueller from dismissal.127

Neither Twombly nor Iqbal purported to overrule either Leatherman

or Swierkiewicz, but also made no attempt to explain how these earlier decisions fit together with Iqbal, assuming that they can. The Third 

Circuit concluded “that because Conley [v. Gibson] has been specifically repudiated by both Twombly and Iqbal, so too has Swierkiewicz, at 

least insofar as it concerns pleading requirements and relies on Conley.”128 The Supreme Court, however, more recently cited Swierkiewicz

in concluding that a § 1983 complaint stated a plausible procedural 

due process claim.129 In the author’s view, Leatherman-Swierkiewicz and 

Twombly-Iqbal are reconcilable if Leatherman-Swierkiewicz are read as 

only rejecting a heightened standard for civil rights complaints. Neither Twombly nor Iqbal expressed any intent to impose a heightened 

standard. In fact, the Court in Twombly specifically stated that it was 

not imposing a heightened pleading standard. Leatherman remains significant for having specifically rejected a heightened pleading standard 

for § 1983 municipal liability claims. The reality, however, is that Iqbal, 

the Court’s most recent major decision concerning complaint pleading 

standards, is the dominant precedent for evaluating the sufficiency of 
Claims, Function, Pleading, and Jurisdiction

19

§ 1983 complaints, with Leatherman and Swierkiewicz having been relegated to secondary authority at best.

Putting all of the pieces of the Iqbal puzzle together, a federal district court or magistrate judge, when faced with a Federal Rule of Civil 

Procedure 12(b)(6) motion to dismiss for failure to state a claim upon 

which relief may be granted, should:

1. Separate the factual allegations in the complaint from the legal 

conclusions.

2. Determine whether the factual allegations state a plausible (not 

merely possible or speculative) claim.

3. In making this determination, if the complaint contains factual 

allegations supporting a claim that the defendant acted with a 

discriminatory animus, consider whether there is a more plausible explanation for the defendant’s conduct than the one offered 

by the plaintiff.

4. In determining whether the complaint states a plausible claim, 

the court should not take into account its ability to manage discovery.

Of course, it may not be easy to determine whether a complaint 

allegation is “conclusory” or “nonconclusory,” constitutes an allegation 

of fact or conclusion of law, and whether the factual allegations constitute a plausible claim.130 The Court in Iqbal observed that “[d]etermining whether a complaint states a plausible claim for relief will . . . be a 

context-specific task that requires the reviewing court to draw on its 

judicial experience and common sense.”131 Different federal judges may 

apply their “judicial experience and common sense” differently. One 

need not look further than the five-to-four disagreement of Justices in 

Iqbal. While the majority found that the complaint’s allegations were 

too conclusory to constitute a plausible claim, the dissenting Justices, 

reading the same complaint, and applying essentially the same pleading 

standards, found the complaint allegations sufficient, “neither confined 

to naked legal conclusions nor consistent with legal conduct.”132

D. Section 1983 Municipal Liability Claims

Bell Atlantic Corp. v. Twombly133 and Ashcroft v. Iqbal134 did not expressly 

overrule Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,

135 which held that § 1983 municipal liability claims are not 
Section 1983 Litigation

20

subject to a heightened pleading standard and are governed by Rule 

8’s notice pleading standard. Nevertheless, in the author’s view, § 1983 

municipal liability claims are now governed by the Twombly-Iqbal plausibility standard.136

E. Claims Subject to Qualified Immunity

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination 

Unit,

137 the Supreme Court left open the issue whether a heightened 

pleading standard governs personal-capacity claims against government officials subject to qualified immunity. Because the claims asserted in Ashcroft v. Iqbal138 were in fact personal-capacity monetary liability claims subject to qualified immunity, it is now resolved that § 1983 

claims subject to qualified immunity are governed by the generally applicable plausibility standard.139

The district courts have several tools to eliminate meritless personal 

capacity claims subject to qualified immunity early in the litigation, including ordering the plaintiff to file either a detailed reply to the defendant’s answer under Federal Rule of Civil Procedure 7, or a more definite 

statement under Rule 12(e), or, under Rule 26(c), tailoring discovery to 

protect the defendant from unnecessary embarrassments or burdens.140

F. Conspiracy Claims

Although a conspiracy is not an element of a § 1983 claim for relief, 

§ 1983 plaintiffs sometimes plead conspiracies in order to (1) establish 

state action through a conspiracy between a private party and public 

official,141 or (2) enhance the likelihood of recovering punitive damages;142 or (3) broaden the potential scope of permissible discovery and 

admissible evidence.143 Federal courts in § 1983 actions have traditionally rejected vague and conclusory allegations of conspiracy, and required the plaintiff to allege particular and specific allegations supporting the existence of the conspiracy.144 These pleading rules reflect the 

concerns that plaintiffs may readily plead conspiracy claims but then 

be unable to prove them.

In the author’s view, a combined reading of Twombly and Iqbal 

strongly supports the conclusion that the plausibility pleading standard 

adopted in those cases governs § 1983 conspiracy claims. In Twombly 

the Court held that the complaint failed to allege a plausible conspiracy 

to violate the antitrust laws.145 In Iqbal the Court stressed that the plau-
Claims, Function, Pleading, and Jurisdiction

21

sibility standard governs all federal court civil complaints. The plausibility standard thus governs § 1983 conspiracy claims.146

G. Pro Se Complaints 

The Supreme Court has not specifically addressed the applicability of 

the plausibility standard to pro se complaints. Prior to Twombly, the 

Court held that pro se complaints are subject to “less stringent standards than formal pleadings drafted by lawyers” and should be liberally 

construed in the plaintiff’s favor.147 In Erickson v. Pardus,

148 decided in 

between Twombly and Iqbal, the Court applied the traditional notice 

pleading standard, and not the plausibility standard, to a pro se prisoner complaint. The Court reiterated the familiar principles that pro 

se complaints should be “liberally construed” and, “‘however inartfully 

pleaded, must be held to less stringent standards than formal pleadings 

drafted by lawyers.’”149

However, because the Court in Erickson did not apply the plausibility standard, it did not discuss whether or how that standard applies to 

pro se complaints. Perhaps a good solution is that adopted by the Sixth 

Circuit, which applied the plausibility standard to a pro se complaint, 

with the understanding that pro se complaints are held to less stringent 

standards than complaints drafted by lawyers, “and should therefore be 

liberally construed.”150 Other circuits have also applied the plausibility 

standard to pro se complaints.151

IV. Federal Court Jurisdiction

A. Subject-Matter Jurisdiction

Section 1983 itself does not grant the federal courts subject-matter jurisdiction. Federal district courts have subject-matter jurisdiction over 

§ 1983 claims under either 28 U.S.C. § 1343(a)(3)152 or the general federal question jurisdiction statute, 28 U.S.C. § 1331. Federal courts may 

nevertheless lack jurisdiction because of some other jurisdictional doctrine (e.g., Rooker-Feldman), the Eleventh Amendment,153 or an abstention doctrine.154

B. Rooker-Feldman Doctrine

In some federal § 1983 actions, a party who lost in state court may 

try to “make a federal case of it” by seeking to overturn the state court 
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22

judgment. In these circumstances the federal court defendant is likely 

to seek dismissal of the federal suit for lack of jurisdiction under the 

“Rooker-Feldman doctrine,” named after the Supreme Court’s decisions 

in Rooker v. Fidelity Trust Co.

155 and District of Columbia Court of Appeals v. Feldman.

156 This doctrine provides that a federal district court 

does not have jurisdiction to review a state court judgment, even when 

a federal court § 1983 complaint alleges that the state court judgment 

violates the plaintiff’s federal constitutional rights. In creating this jurisdictional bar, the Supreme Court reasoned that because federal district courts have only original jurisdiction, they lack appellate jurisdiction to review state court judgments. In Exxon Mobil Corp. v. Saudi Basic Industries Corp.,

157 the Court explained that, under 28 U.S.C. § 1257, 

only the Supreme Court has federal court appellate jurisdiction over 

state court judgments.158

The lower federal courts have struggled to determine the contours 

of the Rooker-Feldman doctrine.159 In Exxon Mobil, the Court found 

that some lower federal courts had interpreted Rooker-Feldman “far beyond” its intended contours by “overriding Congress’ conferral of federal court jurisdiction concurrent with jurisdiction exercised by state 

courts, and superseding the ordinary application of preclusion law 

under 28 U.S.C. § 1738.”160 The Court clarified that the Rooker-Feldman doctrine is confined to federal court actions “brought by statecourt losers complaining of injuries caused by state-court judgments 

rendered before the district court proceedings commenced.”161 Further, 

Exxon Mobil resolved that the Rooker–Feldman doctrine does not apply 

merely because “parallel” suits have been filed in state and federal court, 

even if the state suit comes to judgment during the pendency of the 

federal suit. The Court stressed that “‘the pendency of an action in the 

state court is no bar to proceedings concerning the same matter in the 

Federal court having jurisdiction.’”162

Noting that “[s]ince Feldman, this Court has never applied Rooker-Feldman to dismiss an action for want of jurisdiction,”163 the Exxon Mobil Court emphasized the narrowness of the doctrine.164 It acknowledged that the Rooker-Feldman doctrine does not “override or 

supplant” preclusion and abstention doctrines, which may be relevant 

when the federal court action parallels a state court suit.165
Claims, Function, Pleading, and Jurisdiction

23

Unfortunately, the Supreme Court’s decision in Exxon Mobil provided no guidance on the issue that has given the lower federal courts the 

most difficulty, namely, determining whether a federal court complaint 

contests the validity of a state court judgment. The federal district court 

will have to construe the federal complaint to determine whether the 

federal plaintiff is attacking the state court judgment or some other 

conduct. For example, in finding that the federal action was not barred 

by the Rooker-Feldman doctrine, the Second Circuit found “no basis for 

construing the [federal] complaint as an attack on the Family Court’s 

order, rather than an attack on independent discretionary acts and decisions of the hospital staff that were not compelled by court order.”166

On the other hand, even if a federal court claim does not expressly 

seek review of a state court judgment, the claim will be barred by the 

Rooker-Feldman doctrine if, as a practical matter, the federal court claim 

requires the federal district court to review the state court decision.167

The Ninth Circuit stated that the critical inquiry is “whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.”168 This principle is easy 

to state, though often difficult to apply.

The Third Circuit found that to determine whether a federal court 

plaintiff’s alleged injury was caused by the state court judgment or by 

the conduct of the federal court defendant(s), “a useful guidepost is the 

timing of the injury, that is, whether the injury complained of in federal 

court existed prior to the state-court proceedings and thus could not 

have been caused by those proceedings.”169

In Skinner v. Switzer,

170 the Supreme Court held that the plaintiff’s 

procedural due process claim relating to access to evidence for the purpose of postconviction DNA testing could be asserted under § 1983, 

and need not be asserted in a federal habeas corpus proceeding.171 In 

the course of reaching that decision, the Court held that the plaintiff’s 

claim was not barred by the Rooker-Feldman doctrine because, although 

the Texas state courts had twice rejected Skinner’s motions for postconviction access to evidence for the purpose of DNA evidence, Skinner 

did not challenge those adverse state court “decisions themselves; instead, he targets as unconstitutional the Texas statute they authoritatively construed. As the Court explained in Feldman, and reiterated in 

Exxon, a state-court decision is not reviewable by lower federal courts, 
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24

but a statute or rule governing the decision may be challenged in a federal action.”172 In other words, the Court read the complaint in Skinner

as challenging a legislative policy rather than a state court decision.

The Supreme Court has recognized that the Rooker-Feldman doctrine may apply even when the claim asserted in federal court was not 

determined in the state court proceeding if that claim was “inextricably 

intertwined” with the state court judgment.173 The lower federal courts 

have experienced difficulties applying this concept.174

The Rooker-Feldman doctrine does not apply to interlocutory state 

court orders but only to federal cases brought “after the state proceedings ended.”175 It does not apply when a state court judgment is subject 

to appellate review.176 The Rooker-Feldman doctrine does not apply to 

a federal suit brought by a plaintiff who was not a party to the state 

court proceeding.177 In Lance v. Dennis,

178 the Supreme Court held that 

the Rooker-Feldman doctrine does not bar federal suit when the federal plaintiff was not a party to the state court judgment even if, for 

the purpose of preclusion, the federal plaintiff was in privity with a 

party to the state judgment.179 As in Exxon Mobil, the Court in Lance 

stressed both the narrowness of the Rooker-Feldman doctrine and that 

it is distinct from preclusion. The Supreme Court has also held that the 

Rooker-Feldman doctrine does not apply when the federal court plaintiff seeks review of a state administrative or executive determination.180

C. Supplemental Jurisdiction

In many § 1983 actions the federal court plaintiff asserts both a federal 

claim and one or more state law claims. In these cases, the plaintiff normally is unable to establish diversity jurisdiction over the state law claim 

because the parties are not citizens of different states. Nevertheless, the 

state law claim may come within the federal court’s supplemental jurisdiction. The supplemental jurisdiction statute, 28 U.S.C. § 1367, codifies United Mine Workers v. Gibbs of America’s181 doctrine of pendent 

jurisdiction. Section 1367(a) grants the federal district courts supplemental jurisdiction over “all other claims that are so related to claims” 

over which the federal district court has original jurisdiction “that they 

form part of the same case or controversy under Article III.”182 In Gibbs, 

the Supreme Court held that a pendent claim is part of an Article III 
Claims, Function, Pleading, and Jurisdiction

25

controversy when the pendent claim arises out of “a common nucleus 

of operative fact” with the jurisdictional-conferring claim.183

Like pendent jurisdiction, supplemental jurisdiction is a matter of 

both power and discretion.184 Thus, § 1367(c) provides that the district 

court may decline to exercise its supplemental jurisdiction when the 

supplemental claim “raises a novel or complex issue of state law;” when 

the state law claim “substantially predominates over” the jurisdiction 

conferring claim;” when the district court has dismissed the jurisdiction conferring claim; or in other “exceptional circumstances.”185

To illustrate, assume that a plaintiff asserts a non-insubstantial 

§ 1983 constitutional claim against Officer Jones. Under § 1367, the 

plaintiff may assert a “supplemental” state law claim arising out of the 

same incident against Jones. The plaintiff might also choose to assert 

a “supplemental” state law claim against a new “supplemental party” 

defendant—for example, a state law vicarious liability claim against the 

city, even though there is no independent jurisdictional basis for that 

claim.186 The supplemental jurisdiction statute encompasses both pendent claim and pendent party jurisdiction.187 The statute also encompasses counter-claims, cross-claims, and impleader claims.188

In City of Chicago v. International College of Surgeons,

189 the Supreme 

Court held that a state court judicial review claim may come within 

supplemental jurisdiction.190 On the other hand, the supplemental jurisdiction statute does not override the Eleventh Amendment, and thus 

does not authorize district courts to exercise supplemental jurisdiction 

over claims against nonconsenting states.191

Section 1367(d) of the supplemental jurisdiction statute provides 

for the tolling of the limitations period for supplemental claims while 

they are pending in federal court and for thirty days following a federal 

court’s dismissal of a supplemental claim, unless state law provides for 

a longer tolling period.192 The supplemental jurisdiction tolling provision does not apply when a federal court dismisses a supplemental 

claim against a state on Eleventh Amendment grounds.193 However, the 

tolling provision does apply to claims against municipal entities.195

D. Removal Jurisdiction

Defendants sued in state court under § 1983 may generally remove the 

entire state court action to federal court.195 If a state court complaint 
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26

alleges a § 1983 federal claim and a state law claim, the defendants may 

remove the entire state court action to federal court, and the federal 

court may exercise supplemental jurisdiction over the state law claim.196

In addition, if a state court complaint asserts a § 1983 personal-capacity 

claim and a § 1983 claim against a state entity that is barred by the Eleventh Amendment, the defendants may still remove the action to federal court, which can hear the non-barred, personal-capacity claim.197

When seeking removal, the state waives its Eleventh Amendment immunity from liability on a state law claim on which the state had already 

waived its sovereign immunity in the state court.198

V. State Court Jurisdiction 

State courts have concurrent jurisdiction over § 1983 claims.199 When a 

plaintiff asserts a federal claim in state court “‘federal law takes the state 

courts as it finds them.’”200 In other words, “[s]tates may establish the rules 

of procedure governing litigation in their own courts,” such as neutral 

rules of procedure governing service of process and substitution of parties.201 State courts, however, may not apply state rules that unduly burden, 

frustrate, or discriminate against the federal claim for relief. For example, 

a state court may not apply a state notice-of-claim requirement to a § 1983 

claim because notice-of-claim provisions discriminate and unduly burden 

plaintiffs with claims against governmental entities.202

In state courts, as in federal courts, federal law provides the elements of 

the § 1983 claim for relief and the defenses to the claim, and state law may 

not alter either the elements or defenses.203 The Supreme Court, in Howlett 

v. Rose,

204 held that state courts may not apply state law immunity defenses to § 1983 claims. In cases arising from state court § 1983 actions, the 

Supreme Court has generally held that the same federal rules that govern 

the litigation of § 1983 actions in federal court also govern the litigation of 

§ 1983 actions in state court.205
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4. Section 1983 Plaintiffs

I. Persons Entitled to Bring Suit Under § 1983

The right to bring suit under § 1983 is available to a wide range of plaintiffs. This right is not limited to U.S. citizens. Legal and even illegal aliens 

are entitled to sue under § 1983.206 Nor is the right to sue limited to individuals. Both for-profit and not-for-profit organizations may sue under 

§ 1983.207 However, the Supreme Court held that a Native American tribe 

that sought to vindicate its sovereign status was not entitled to sue under § 1983 to assert the claim.208 The Court reasoned “[s]ection 1983 was 

designed to secure private rights against government encroachment, . . . 

not to advance a sovereign’s prerogative to withhold evidence relevant to a 

criminal investigation.”209

II. Standing

Whether the plaintiff is a “person” entitled to sue under § 1983 is a question separate and distinct from whether the plaintiff has standing to sue. 

For example, Michael Newdow, who sought to challenge the constitutionality of a school policy requiring teacher-led recitation of the Pledge of 

Allegiance, was clearly a “person” entitled to sue under § 1983, but the Supreme Court held that he lacked standing to assert the claim.210 The Court 

decided that Newdow could not assert the rights of his daughter because 

the girl’s mother, and not Newdow, had legal custody over her.

Article III has three standing requirements: (1) an actual or a threatened injury; (2) the injury is fairly traceable to the defendant’s conduct; 

and (3) a sufficient likelihood that a favorable decision on the merits will 

redress the injury.211 In addition, the Supreme Court has formulated “prudential” standing requirements. The most important of the prudential 

rules is the rule against third-party standing that generally requires the 

plaintiff to assert her own rights and not the rights of a third party.212

The Supreme Court has established a specific standing doctrine when 

the plaintiff seeks injunctive relief. In City of Los Angeles v. Lyons,

213 a § 1983 

action, the plaintiff sought both damages for a choke hold applied by a Los 

Angeles police officer during a traffic stop, and a permanent injunction 

against the City of Los Angeles to ban its police officers from using choke 
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holds on him unless the officer is threatened with serious harm.214 The 

Court determined that the plaintiff had standing to seek damages from 

the choke hold during the traffic stop, but did not have standing to seek 

prospective injunctive relief.215

To establish standing for prospective relief, the Court declared that Lyons must demonstrate a realistic probability that he will again be subjected 

to the same injurious conduct.216 The Supreme Court held that standing 

for injunctive relief depended on whether police officers were reasonably 

likely to use a choke hold on Lyons in the future.217 The fact that Los Angeles police officers had used a choke hold on Lyons and others in the past 

was not dispositive of whether there was a sufficient probability that Lyons 

would be subjected to it in the future.218 Nor was Lyons’ subjective fear 

that he would again be choked without justification sufficient to confer 

standing.219

Speculation or conjecture that officers might subject Lyons to the choke 

hold in the future did not demonstrate a “real or immediate threat that the 

plaintiff [would] be wronged again.”220 Furthermore, the Court explained 

that the plaintiff could litigate the legality of the challenged conduct on 

his claim for damages. Thus, the Court discerned that the injury Lyons 

allegedly suffered would not go uncompensated; for that injury Lyons had 

an adequate remedy at law.221

The Court explained that to establish standing to seek injunctive relief, Lyons would have had to allege not only that he would have another 

encounter with the police, but also to make the incredible assertion either 

that “all police offices in Los Angeles always choke any citizen with whom 

they happen to have an encounter,” or that “the City ordered or authorized 

police officers to act in such manner.”222 Because Lyons did not demonstrate a sufficient likelihood that he would again be subjected to the choke 

hold, the Court determined that he lacked standing to seek prospective 

relief. 

When a § 1983 plaintiff seeks to enjoin a threatened criminal prosecution, to establish Article III standing, the plaintiff has to demonstrate 

(1) an intent to engage in the type of conduct governed by the contested 

penal statute; and (2) a credible threat of prosecution.223
29

5. Constitutional Rights

Enforceable Under § 1983

I. Generally

A. Introduction

An essential element of a § 1983 claim for relief is the establishment of a 

violation of a federally protected right (discussed supra Chapter 3, § I). 

This chapter analyzes federal constitutional rights enforceable under 

§ 1983. The enforcement of federal statutory rights under § 1983 is analyzed infra Chapter 6. The other essential element of the § 1983 claim, 

action under color of state law, is covered infra Chapter 7.

B. Fourteenth Amendment Rights

Plaintiffs may enforce a wide range of federal constitutional rights under § 1983 against defendants who acted under color of state law.224

The Fourteenth Amendment creates numerous rights enforceable under § 1983, namely substantive and procedural due process, the equal 

protection of the laws, and those rights in the Bill of Rights incorporated by the Due Process Clause of the Fourteenth Amendment. These 

incorporated rights include rights protected by the First Amendment, 

including the free speech and religion clauses (the free exercise and establishment clauses), the Second Amendment right to bear arms,225 the 

Fourth Amendment protection against unreasonable searches and seizures, and the Eighth Amendment protection against cruel and unusual 

punishment.

C. Dormant Commerce Clause; Supremacy Clause 

Section 1983 is not limited to the enforcement of Fourteenth Amendment rights, and provides a remedy for the enforcement of some other 

constitutional rights. In Dennis v. Higgins,

226 the Supreme Court held 

that the Dormant Commerce Clause, also referred to as the “negative 

implications” of the Commerce Clause, which imposes constitutional 

limitations on the power of the states to regulate interstate commerce, 

is enforceable under § 1983.227 The Court in Dennis made clear that 

§ 1983 is not limited to the enforcement of Fourteenth Amendment 
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rights. In Golden State Transit Corp. v. City of Los Angeles,

228 however, the 

Supreme Court held that the Supremacy Clause does not create rights 

that are enforceable under § 1983. Rather, the Supremacy Clause governs the relationship between state and federal law, and dictates that 

state and local laws in conflict with federal statutes are unenforceable.229

When state action is alleged to violate a federal statute, the pertinent 

issue is whether the particular federal statutory provision creates rights 

enforceable under § 1983.230

D. Congress’s Power to Preclude Constitutional Claims Under § 1983

Congress has authority to exclude the assertion of specific constitutional claims under § 1983. Although there is extensive Supreme Court 

decisional law concerning the enforcement of federal statutes under 

§ 1983, there is relatively little Supreme Court decisional law on whether a federal statute can operate to preclude the assertion of a federal 

constitutional claim. In fact, the Supreme Court has held in only one 

case that a federal statute precluded the assertion of § 1983 constitutional claims. In Smith v. Robinson,231 the Court held that in enacting 

the Education of the Handicapped Act (EHA) Congress intended to 

preclude the assertion of constitutional claims under § 1983 that parallel, i.e., are analogous, to statutory claims that can be asserted under 

the EHA.232

More recently, the Supreme Court, in Fitzgerald v. Barnstable School 

Committee,

233 held that Title IX of the Education Amendments of 1972, 

which prohibits gender discrimination in federally funded education 

institutions, does not prohibit the assertion of § 1983 gender discrimination claims under the Equal Protection Clause of the Fourteenth 

Amendment. Fitzgerald made clear that the Court will “not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim,”234 or, for that matter, as a 

remedy for any constitutional claim.

The Court in Fitzgerald stated that when a § 1983 claim is based 

upon a federal statutory right, evidence of a congressional intent to preclude enforcement of § 1983 “may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive 

enforcement scheme that is incompatible with individual enforcement 

under § 1983.”235 By contrast, when
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the § 1983 claim alleges a constitutional violation, lack of congressional intent [to preclude enforcement under § 1983] may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours 

of such rights and protections diverge in significant ways, it is not 

likely that Congress intended to displace § 1983 suits enforcing constitutional rights.236

The Court pointed out that in the three cases in which it held that 

the specific federal statute precluded the § 1983 remedy, the federal 

statute “required plaintiffs to comply with particular procedures and/

or to exhaust particular administrative remedies prior to filing suit.”237

In these circumstances, allowing plaintiffs to use the § 1983 remedy 

would enable them to circumvent the specific procedural requisites in 

the federal statute and/or obtain relief under § 1983 that is not available 

under the particular federal statute. Title IX, however, does not contain 

specific procedures individuals must pursue that would be circumvented by allowing § 1983 constitutional claims.

In addition, Title IX does not contain an express private claim for 

relief. The Court in Fitzgerald explained,

“[t]he provision of an express, private means of redress in the statute itself” is a key consideration in determining congressional intent. . . . [The Supreme] Court has never held that an implied right 

of action had the effect of precluding suit under § 1983, likely because of the difficulty of discerning congressional intent in such 

a situation. Mindful that [the Court] should “not lightly conclude 

that Congress intended to preclude reliance on § 1983 as a remedy 

for a substantial equal protection claim,” [it saw] no basis for doing 

so here.238

Lastly, as explained in the endnote, Title IX protections are narrower 

in some respects and broader in other respects than the § 1983 remedy.239 The Court in Fitzgerald concluded that

[i]n light of the divergent coverage of Title IX and the Equal Protection Clause, as well as the absence of a comprehensive remedial 

scheme . . ., Title IX was not meant to be an exclusive mechanism 

for addressing gender discrimination in schools, or a substitute 

for § 1983 suits as a means of enforcing constitutional rights. Accordingly, we hold that § 1983 suits based on the Equal Protection 
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Clause remain available to plaintiffs alleging unconstitutional gender discrimination in schools.240

E. Whether Plaintiff Has Alleged Constitutional Claim Under § 1983

Requires Interpretation of Constitution, Not § 1983

Whether the plaintiff has alleged a proper constitutional claim under 

§ 1983 depends on the meaning of the particular constitutional provision at issue, not on an interpretation of § 1983. For example, in Graham v. Connor,

241 the Supreme Court held that all claims of excessive 

force during an arrest, investigatory stop, or other seizure are evaluated 

under a Fourth Amendment objective reasonableness standard.242 The 

Court in Graham rejected the existence of “a generic ‘right’ to be free 

from excessive force, grounded . . . in ‘basic principles of § 1983 jurisprudence.’”243 “In addressing an excessive force claim brought under 

§ 1983, analysis begins by identifying the specific constitutional right 

allegedly infringed by the challenged application of force.”244

 Federal § 1983 complaints also frequently assert Fourth Amendment challenges to warrantless arrests. The key issue in these cases is 

whether the arresting officer had probable cause to arrest.245 Large numbers of § 1983 complaints allege free speech retaliation claims. These 

claims frequently give rise to difficult legal issues and sharply contested 

factual issues.246 The majority of these claims are asserted by present 

and former public employees. The key issues in these cases are whether 

the plaintiff’s speech was pursuant to her official duties; whether the 

plaintiff’s speech was a matter of public concern; whether the defendant took adverse action against the plaintiff for engaging in protected 

speech; and whether the governmental interest outweighs the plaintiff’s 

free speech interests.247 First Amendment retaliation claims are also asserted by government contractors, individuals subject to criminal prosecution, prisoners, and landowners, among others.

F. Conspiracies

An allegation of a conspiracy does not itself state a claim for relief under § 1983; the plaintiff must also allege a constitutional deprivation.248

In other words, without a deprivation of a constitutional right, conspiracy allegations do not give rise to a § 1983 claim.
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G. State Law Rights Not Enforceable Under § 1983

State law rights are not enforceable under § 1983.249 When governmental conduct is not proscribed by a textually explicit provision of the 

Bill of Rights, the Supreme Court has generally rejected substantive 

due process protection and left the plaintiff to available state tort remedies.250 For example, in Estelle v. Gamble,

251 the Supreme Court held 

that “[m]edical malpractice does not become a constitutional violation 

merely because the victim is a prisoner.”252 In Baker v. McCollan,

253 the 

Court held that “[f]alse imprisonment does not become a violation of 

the Fourteenth Amendment merely because the defendant is a state official.”254 Similarly, in Paul v. Davis,

255 the Court held that defamation by 

a government official does not itself violate the Constitution.256 It stated 

that § 1983 is not a “font of tort law to be superimposed upon whatever 

systems may already be administered by the States.”257

In Collins v. City of Harker Heights,

258 the Supreme Court held that 

a claim that the city breached its duty of care to its employees by failing 

to provide a safe working environment was “analogous to a fairly typical 

state law tort claim” and was not cognizable under § 1983.259 The Court 

stated:

Because the Due Process Clause “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability 

for injuries that attend living together in society” . . . we [reject] 

claims that the Due Process Clause should be interpreted to impose 

federal duties that are analogous to those traditionally imposed by 

state tort law.260

In some cases, however, state law may have a significant, even decisive, impact on a federal constitutional right. Whether the plaintiff has 

a protected property interest for the purpose of the Due Process Clause 

of the Fourteenth Amendment depends on whether state law creates a 

reasonable expectation in the particular interest. In Board of Regents v. 

Roth,

261 the Supreme Court held that “[p]roperty interests . . . are not 

created by the Constitution” but by sources of state law “that support 

claims of entitlement to” state-created benefits and interests.262 Further, 

Supreme Court decisional law holds that when the deprivation of property or liberty results from “random and unauthorized” governmental action, the availability of an adequate state postdeprivation judicial 

remedy will satisfy procedural due process.263
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The following sections contain discussions of selected constitutional 

rights asserted on a fairly recurring basis in federal court § 1983 actions.

II. Due Process Rights: In General 

The Due Process Clause of the Fourteenth Amendment encompasses three 

kinds of federal claims enforceable under 42 U.S.C. § 1983: (1) claims for 

the deprivation of those rights in the Bill of Rights made applicable to 

the states through incorporation; (2) claims under the substantive component of the Due Process Clause, which “bars certain arbitrary, wrongful 

government actions, ‘regardless of the fairness of the procedures used to 

implement them’”;264 and (3) claims under the procedural component of 

the Due Process Clause, which prohibits the deprivation of life, liberty, or 

property without fair procedure.265

When a plaintiff asserts a violation of an incorporated right or a right 

protected under the substantive component of the Due Process Clause, the 

violation is complete at the time of the challenged conduct, and the § 1983 

remedy is available, regardless of remedies provided under state law.266 In 

contrast, when the plaintiff asserts a violation of procedural due process, 

an available state remedy may provide adequate process, and serve to defeat the procedural due process claim.

III. Procedural Due Process

A § 1983 claim based on denial of procedural due process challenges the 

constitutional adequacy of state law procedural protections accompanying an alleged deprivation of a constitutionally protected interest in life, 

liberty, or property. The deprivation of life, liberty, or property alone is a 

necessary, but not sufficient, condition; to be actionable, the deprivation 

must have been without adequate process.

A. Two-Step Approach

A procedural due process analysis addresses two questions. The “first 

asks whether there exists a [life,] liberty or property interest which has 

been interfered with by the state; the second examines whether the 

procedures attendant upon that deprivation were constitutionally sufficient.”267 A court encountering a procedural due process claim must 

first determine whether the plaintiff has been deprived of a life, liberty, or property interest that is protected by the Due Process Clause.268
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While liberty interests may be either derived directly from the Due Process Clause of the Constitution,269 or created by state law,270 property 

interests “are created from an independent source such as state law.”271

B. Property

In Board of Regents v. Roth,

272 the Supreme Court provided the following guidance for determining when a party has a property interest safeguarded by procedural due process:

To have a property interest in a benefit, a person clearly must have 

more than an abstract need or desire for it. He must have more than 

a unilateral expectation of it. He must, instead, have a legitimate 

claim of entitlement to it. 

. . .

Property interests . . . are not created by the [federal] Constitution. 

Rather they are created and their dimensions are defined by existing 

rules or understandings that stem from an independent source such 

as state law—rules or understandings that secure certain benefits 

and that support claims of entitlement to those benefits.273

An individual has a “legitimate claim of entitlement” to a government dispensed commodity when the state establishes fairly objective 

standards of eligibility for receiving the commodity. The Supreme 

Court has found protected property interests in a variety of government dispensed commodities made available to those who satisfy objective eligibility standards, including public assistance,274 Social Security disability benefits,275 driver’s licenses,276 public school education,277

municipal furnished utility services,278 and public employment.279 On 

the other hand, the Supreme Court held that there was no property 

interest in police enforcement of a domestic abuse restraining order, 

even though the order and a state statute were couched in mandatory 

terms requiring police enforcement.280 The Court determined that the 

mandatory language had to be read together with the tradition of broad 

discretion afforded law enforcement officers.281 In addition, except in 

the area of public employment, federal courts have been reluctant to 

find that a private party’s contract with a state or municipality creates a 

protected property interest, because doing so runs the risk that routine 

breach-of-contract claims could be converted into § 1983 due process 

claims.282
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C. Liberty: Prisoners’ Rights Cases

Prisoners’ rights cases frequently require a determination of whether 

the plaintiff has suffered a deprivation of liberty. In Sandin v. Conner,

283

an inmate placed in disciplinary segregation for thirty days asserted 

a violation of procedural due process. The Supreme Court held that, 

despite the mandatory language of the applicable prison regulation, a 

prisoner’s constitutionally protected liberty interest will generally be 

“limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of 

prison life.”284 Courts must also look to the substance of the deprivation 

and assess the hardship imposed on the inmate relative to the ordinary 

incidents of prison life.285

Courts normally decide whether the discipline imposed “atypical and significant hardship on the inmate in relation to the ordinary 

incidents of prison life” as a matter of law. However, some decisions 

recognize that the issue can involve factual determinations.286 But even 

when there are factual issues, “the ultimate issue of atypicality is one of 

law.”287

Sandin did not disturb the Court’s decision in Wolff v. McDonnell,

288

which held that a state may create a liberty interest on the part of inmates in the accumulation of good-conduct time credits.289 Thus, if 

disciplinary action would inevitably affect the duration of the inmate’s 

confinement, a liberty interest would be recognized under Wolff.

290

Likewise, prisoners’ claims not based on procedural due process, such 

as First Amendment retaliatory transfer or retaliatory discipline claims, 

are not affected by Sandin.

291

In Wilkinson v. Austin,

292 the Supreme Court acknowledged that 

“[i]n Sandin’s wake the Courts of Appeals have not reached consistent 

conclusions for identifying the baseline from which to measure what is 

atypical and significant in any particular prison system.”293 The Court 

found it unnecessary to resolve that issue because it found that placement of the plaintiff prisoner in a “supermax facility” imposed “atypical and significant hardship under any plausible baseline.”294

D. Liberty: “Stigma Plus” Claims

In Paul v. Davis,

295 the Supreme Court held that mere government injury to an individual’s reputation is not a deprivation of liberty. However, 
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a deprivation of liberty arises if the injury to reputation occurs in conjunction with the deprivation of some tangible interest, even if the tangible interest is not itself a protected property interest, such as “at will” 

public employment.296 This is known as the “stigma-plus” doctrine. Under this doctrine, to establish a deprivation of liberty for the purpose of 

a procedural due process claim, the plaintiff must demonstrate government publication of the stigma in conjunction with the deprivation of 

a tangible interest. In this context, procedural due process requires that 

the stigmatized individual be afforded a name-clearing hearing, i.e., an 

opportunity to clear her good name and reputation. The “stigma-plus” 

doctrine has been the subject of extensive lower court decisional law.297

E. Procedural Safeguards

Once a protected due process property or liberty interest has been identified, a court must examine the process that accompanies the deprivation of that protected interest and decide whether the available procedural safeguards are constitutionally adequate.298 The procedural safeguards that must accompany a state’s deprivation of a constitutionally 

protected interest is a matter of federal law.299

1. Eldridge Balancing

When the procedural due process claim contests the adequacy of notice, the court must determine whether the § 1983 plaintiff was given 

“notice reasonably calculated, under all the circumstances, to apprise 

interested parties of the pendency of the [proceeding] and afford 

them an opportunity to present their objections.”300 When the procedural due process claim concerns some aspect of the opportunity 

to be heard, the courts employ the Mathews v. Eldridge301 balancing 

formula to determine the procedures required by the Due Process 

Clause.

In Eldridge, the Court set forth three factors to be weighed in determining the sufficiency of procedural safeguards accompanying 

deprivations caused by the government:

First, the private interest that will be affected by the official action; 

second, the risk of an erroneous deprivation of such interest through 

the procedures used, and the probable value, if any, of additional or 

substitute procedural safeguards; and, finally, the government’s interest, including the function involved and the fiscal and administrative 
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burdens that the additional or substitute procedural requirements 

would entail.302

Federal courts normally determine the procedures required by 

Eldridge balancing as a matter of law. As a general rule, due process 

requires some type of notice and an opportunity to be heard prior to 

the deprivation of a protected interest.303 In certain circumstances, 

however, an adequate postdeprivation remedy satisfies procedural 

due process. The Supreme Court held that a state did not violate the 

Due Process Clause of the Fourteenth Amendment by failing to provide notice and a hearing before suspending without pay a university 

police officer who had been arrested and charged with drug possession.304 Although due process normally requires the government to 

provide an informal opportunity to be heard before discharging an 

employee,305 the Court found that the arrest of the plaintiff-employee; the filing of charges by a third party; and the employer’s need to 

expeditiously dismiss employees in a position of “great public trust” 

strongly weighed against granting a predeprivation hearing.306

2. Parratt-Hudson Doctrine 

A due process claim may be based on a deprivation of life, liberty, 

or property by state officials acting pursuant to an established state 

procedure that failed to provide for predeprivation process.307 In this 

situation, procedural due process generally requires a predeprivation 

hearing if the challenged conduct was “authorized,” the erroneous 

deprivation foreseeable, and predeprivation process was practicable.308

In contrast, under the Parratt-Hudson doctrine,309 there is no 

procedural due process violation where the deprivation was unforeseeable, random, and unauthorized, and where the state provided 

an adequate postdeprivation remedy.310 This doctrine represents 

a “special case of the general Mathews analysis, in which adequate 

post-deprivation tort remedies are all the process that is due, simply 

because they are the only remedies that the state could be expected 

to provide.”311 In other words, when the deprivation is the result of 

random and unauthorized action by a state official, it is not normally 

possible for the state to provide predeprivation process because the 

state cannot predict when the deprivation will occur.312
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Although the Supreme Court has distinguished between claims 

contesting the established state procedure and claims challenging 

random and unauthorized acts, it is not always easy to determine 

whether an official’s conduct is “random and unauthorized.”313 In 

Zinermon v. Burch,

314 the plaintiff, Darrell Burch, was admitted to a 

state mental hospital as a “voluntary” patient under circumstances 

that clearly indicated he was incapable of informed consent. Burch 

alleged that his five-month hospitalization deprived him of liberty 

without due process of law. In holding that Burch’s complaint did 

not allege random and unauthorized conduct, and was sufficient to 

state a procedural due process claim, the Supreme Court stated:

Burch’s suit is neither an action challenging the facial adequacy 

of a State’s statutory procedures, nor an action based only on 

state officials’ random and unauthorized violation of state laws. 

Burch is not simply attempting to blame the State for misconduct by its employees. He seeks to hold state officials accountable 

for their abuse of their broadly delegated, uncircumscribed power to effect the deprivation at issue.315

The Court in Zinermon found that the Parratt-Hudson doctrine did 

not apply because the officials had authority to deprive individuals 

of their liberty; the deprivations were, therefore, not unpredictable; 

and it was not impossible for the state to provide predeprivation process.316

Actions by High-Ranking Officials. There is a split in the circuits 

as to whether the Parratt-Hudson doctrine applies to actions by 

“high-ranking” officials. The First, Fifth, and Seventh Circuits hold 

that the actions of high-ranking officials may be “random and unauthorized,” and thus subject to the Parratt-Hudson doctrine.317 The 

Second Circuit, however, holds that the decisions of high-ranking 

officials “more closely resemble established state procedures than the 

haphazard acts of individual state actors.”318

IV. Substantive Due Process Claims

In addition to providing procedural due process protection, the Due Process Clause imposes certain substantive limitations on the power of state 

and local government to deprive individuals of life, liberty or property. 
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In other words, substantive due process bars “‘certain government actions 

regardless of the fairness of the procedures used to implement them.’”319

Substantive due process has been employed by the Supreme Court in 

two different manners. It has been the basis for implying some fundamental constitutional rights. It has also afforded protection against especially 

egregious, arbitrary governmental action.

In some cases the Supreme Court has invoked substantive due process 

as the basis for implying fundamental constitutional rights and invoking heightened judicial scrutiny. These fundamental protections afforded 

by the substantive component of the Due Process Clause have generally 

been limited to personal autonomy and privacy “matters relating to marriage, family, procreation, and the right to bodily integrity.”320 Because “the 

guideposts for responsible decision making in this [uncharted] area [of 

substantive due process] are scarce and open-ended,”321 the Supreme Court 

has expressed a reluctance to expand the scope of substantive due process 

protection.322 Whenever “an explicit textual source of constitutional protection” addresses particular governmental behavior, courts must rely on 

the more explicit source of protection to analyze the claim, rather than the 

more general and open-ended concept of substantive due process.323

However, substantive due process may also provide protection when 

egregious governmental conduct is not forbidden by either the explicit 

provisions of the Bill of Rights or by an implied fundamental constitutional right (such as the right to privacy, to the extent it has been recognized). 

For example, substantive due process protects individuals who have been 

subjected to excessive force in a nonseizure, nonprisoner context because 

neither the Fourth Amendment nor Eighth Amendment applies.324 Substantive due process may thus be viewed as affording individuals a type of 

residual protection against egregious governmental wrongdoing.

A. Shocks the Conscience

The Supreme Court, in County of Sacramento v. Lewis,

325 ruled that the 

substantive due process standard depends on whether the plaintiff is 

challenging legislative action or executive action and, if the challenge 

is to executive action, the type of executive action. When the challenge 

is to legislative action and the legislative policy does not infringe upon 

a fundamental constitutional right, the test is whether the legislative 

policy is reasonably related to a legitimate governmental interest.326
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When, as in County of Sacramento, the challenge is to executive action, 

the question is whether the government action is shocking to the judicial conscience.327

County of Sacramento divided executive actions into two categories. When the executive official had time to deliberate, but the official 

was nevertheless deliberately indifferent, the deliberate indifference 

“shocks the conscience” and thus violates substantive due process. The 

Court gave, as an example of executive action with time to deliberate, 

the provision of medical care to detainees.328 On the other hand, when 

executive officers did not have time to deliberate, their actions shock 

the conscience only if they acted with a purpose to cause harm that 

is unrelated to a legitimate law enforcement interest. The officers in 

County of Sacramento were involved in a high-speed police pursuit and 

did not have a realistic opportunity to deliberate. The Court held that 

their actions did not violate substantive due process because the officers 

did not act with a purpose to cause harm unrelated to a legitimate law 

enforcement interest.

The “shocks the conscience” test governs all substantive due process challenges to executive action not implicating a fundamental, constitutionally protected right.329 The standard is extremely demanding, 

and challenges to executive action under it rarely succeed.330 Negligence 

is “never sufficient” to show that official conduct shocks-the-conscience.331 Further, the mere fact that a state or local official violated 

state law does not mean that the official violated substantive due process. The Supreme Court stated that “errors of state law do not automatically become violations of due process.”332 Moreover, “[n]ot all 

arbitrary and capricious state action amounts to a violation of substantive due process; ‘otherwise judicial review for compliance with substantive due process would become the equivalent’” of a typical state 

law judicial review claim.333

In 2009, after a decade of police pursuit litigation under the County 

of Sacramento’s substantive due process standard, the Sixth Circuit was 

unable to find any federal court decision “in which an officer’s actions in 

a police chase have ultimately been found to shock the conscience. . . .”334

In some cases the district judge may be able to decide that, as a matter of law, the contested conduct does not violate substantive due process because a reasonable jury could not find that the conduct shocks 
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the conscience.335 In County of Sacramento, the Court held that the 

complaint allegations did not state a substantive due process claim. 

However, in cases where the complaint allegations satisfy the shockthe-conscience standard, and the evidence allows a reasonable jury 

to find that the contested conduct was conscience shocking, the issue 

should be submitted to the jury under instructions incorporating the 

County of Sacramento standards.

B. District Attorney’s Office v. Osborne

In District Attorney’s Office v. Osborne,

336 the Supreme Court rendered 

an important decision rejecting a criminal defendant’s claims that the 

state’s denial of access to evidence for the purpose of postconviction 

DNA testing violated his substantive and procedural due process rights. 

In rejecting these due process claims, the Court relied heavily on the 

pervasive legislative enactments governing postconviction DNA, reasoning that recognizing a due process right to postconviction DNA 

testing “would take the development of rules and procedures in this 

area out of the hands of legislatures and state courts shaping policy in 

a focused manner and turn it over to federal courts applying the broad 

parameters of the Due Process Clause,”337 thereby, “short-circuit[ing] 

what looks to be a prompt and considered legislative response.”338

In rejecting Osborne’s procedural due process claim, the Court held 

that the prosecutor’s due process obligation, under Brady v. Maryland,

339

to disclose exculpatory material to the defense is a fair trial right that 

does not apply postconviction. Further, the Court ruled that although 

“noncapital defendants do not have a liberty interest in traditional state 

executive clemency, to which no particular claimant is entitled as a matter of state law,”340 Osborne did have a state-created liberty interest in 

demonstrating his innocence.341 However, because a convicted defendant found guilty after a fair trial has a significantly diminished liberty 

interest compared to a presumptively innocent person, “[t]he State accordingly has more flexibility in deciding what procedures are needed 

in the context of postconviction relief.”342 “Federal courts may upset a 

State’s postconviction relief procedures only if they are fundamentally 

inadequate to vindicate the substantive rights provided.”343 The Court 

found that Alaska’s postconviction procedures were facially adequate 

to obtain access to evidence for DNA testing, and that Osborne did not 
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demonstrate that Alaska’s postconviction procedures were inadequate 

in operation. It stated:

This is not to say that Osborne must exhaust state-law remedies. See 

Patsy v. Board of Regents of Fla., 457 U.S. 496, 500–501 . . . (1982). 

But it is Osborne’s burden to demonstrate the inadequacy of the 

state-law procedures available to him in state postconviction relief. 

These procedures are adequate on their face, and without trying 

them, Osborne can hardly complain that they do not work in practice.344

This aspect of the analysis in Osborne is consistent with the position of 

numerous lower federal courts that § 1983 claimants who allege procedural due process claims must pursue the available procedures and 

demonstrate their inadequacy.345 This is not considered an exhaustion 

requirement, but is in effect an element of a procedural due process 

claim.

The Court also rejected Osborne’s claimed substantive due process 

right to postconviction DNA testing. Reiterating its strong reluctance 

to expand substantive due process rights, the Court found “no long 

history of ... a right [to postconviction DNA testing], and ‘[t]he mere 

novelty of such a claim is reason enough to doubt that “substantive due 

process” sustains it.’”346

C. Professional Judgment

The federal courts have applied a “professional judgment” standard to 

certain substantive due process claims. The Supreme Court articulated this standard in Youngberg v. Romeo,

347 holding that state officials 

are liable for treatment decisions concerning involuntarily committed 

mental patients only if the officials’ decisions were “such a substantial 

departure from accepted professional judgment, practice, or standards 

as to demonstrate that the person responsible actually did not base the 

decision on such a judgment.”348 Some courts have applied the professional judgment standard to due process claims asserted on behalf of 

involuntarily placed foster children.349 Most courts, however, have applied the deliberate indifference standard to these claims.350

D. DeShaney and Affirmative Duty Cases

In DeShaney v. Winnebago County Department of Social Services,

351 the 

Supreme Court held that the Due Process Clause of the Fourteenth 
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Amendment generally does not create an affirmative duty on the part 

of the state to “protect the life, liberty, and property of its citizens 

against invasion by private actors.”352 The Court concluded that “[a]s a 

general matter . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process 

Clause.”353 In other words, the Due Process Clause prohibits the state 

from engaging in certain conduct that deprives individuals of life, liberty, or property, but it does not generally require the state to engage in 

affirmative actions to protect individuals from being harmed by third 

parties, even when the state is aware of the risk of harm and may have 

the ability to prevent it. Nor does the Due Process Clause generally impose an obligation on the State to provide individuals with essential 

services such as police and fire protection, or other necessities. Thus, 

the Court in DeShaney held that the state did not have a due process 

duty to protect Joshua DeShaney from being abused by his father, even 

though the state at one point took Joshua into its custody, and state 

officials were aware of the risk of harm.

However, DeShaney recognized that the state has an affirmative 

“duty to protect” a person whom the state has incarcerated or involuntarily institutionalized.354 Plaintiffs who have not been incarcerated 

or involuntarily institutionalized may assert substantive due process 

duty-to-protect claims based on allegations that: (1) the plaintiff was 

in the “functional custody” of the state when harmed, or (2) the state 

created or increased the danger to which the plaintiff was exposed. The 

Supreme Court’s decision in DeShaney has generated a tremendous 

amount of lower court decisional law.355

1. Functional Custody: Foster Care; Public School

When a § 1983 plaintiff asserts a violation of the state’s “affirmative 

due process” duty to protect, grounded in the concept of state “custody,” a number of courts have taken the position that the plaintiff 

must have been involuntarily in the state’s custody when harmed.356

In DeShaney, the Court acknowledged that a situation in which the 

state removes a child from “free society” and places him or her in 

a foster home might be “sufficiently analogous to incarceration or 

institutionalization to give rise to an affirmative duty to protect.”357

The federal circuit courts since DeShaney have consistently recog-
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nized that the states have a due process duty to protect foster children 

involuntarily placed by the state in foster care.358

On the other hand, the circuits have consistently rejected arguments that public schoolchildren, by virtue of compulsory attendance laws, are in the “functional custody” of the state during school 

hours.359 These decisions hold that the state does not have a duty to 

protect students from harm inflicted by fellow students or other private actors.360 The dominant rationale of these decisions is that even 

while in public school, the student remains in her parents’ custody. 

Courts have likewise rejected the notion that individuals in public 

housing361 or employees of a public entity362 are in the “functional 

custody” of the state and thus owed an affirmative duty of protection. In Collins v. City of Harker Heights,

363 the Supreme Court unanimously held that “the Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain 

minimal levels of safety and security in the workplace.”364

2. State-Created Danger

In holding that the state had not deprived Joshua DeShaney of any 

constitutionally protected rights, the Supreme Court suggested that 

the result might have been different if the state had played a role in 

creating the dangers to which Joshua was exposed, or if it had increased his vulnerability to these dangers.365 While DeShaney makes 

clear that the state’s mere awareness of a risk of harm to an individual will not suffice to impose an affirmative duty to provide protection,366 most courts of appeals hold that if the state creates the danger 

confronting the individual, it may then have a corresponding duty 

to protect.367 Moreover, the Supreme Court’s decision in Collins—

that there is no substantive due process right to a safe work environment368—does not necessarily preclude the imposition of constitutional liability on state officials who deliberately or intentionally 

place public employees in a dangerous situation without adequate 

protection.369

V. Use of Force by Government Officials: Sources of Constitutional 

Protection

Government officials may be subject to § 1983 lawsuits when they use 

unjustified force to control criminal suspects, pretrial detainees, and con-
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victed prisoners. The source of the right for claims against these officials 

depends on the plaintiff’s status at the time the officials used force: the 

Fourth Amendment370 applies to arrestees and other “seized” individuals 

and prohibits the use of unreasonable force;371 the Due Process Clause applies to pretrial detainees and protects them against “excessive force that 

amounts to punishment”;372 and the Eighth Amendment373 applies to convicted prisoners and prohibits cruel and unusual punishment.374 Because 

the Fourth and Eighth Amendment rights have been incorporated by the 

Due Process Clause of the Fourteenth Amendment, state and local officials 

are subject to § 1983 lawsuits under these amendments. 

Under the substantive due process component of the Fourteenth 

Amendment, use-of-force claims are actionable if they constitute a deprivation of “liberty . . . without due process of law.”375 A substantive due process claim challenging the use of force may lie only if neither the Fourth 

nor the Eighth Amendment applies.376 For example, if the use of force 

constituted a “seizure” within the meaning of the Fourth Amendment, 

the claim must be analyzed only under the Fourth Amendment objective 

“reasonableness” standard.377 In other words, the textually explicit Fourth 

Amendment protection preempts the more generalized substantive due 

process protection. In fact the Fourth Amendment “objective reasonableness” standard for evaluating excessive force claims is less demanding than 

the substantive due process “shock the conscience” standard.378 In contrast, 

if officers engaged in a high-speed pursuit did not “seize” the § 1983 claimant, the Fourth Amendment would not apply, and the use-of-force claim 

may be actionable only under the substantive due process component of 

the Fourteenth Amendment.379

Although the “Due Process Clause protects a pretrial detainee from the 

use of excessive force that amounts to punishment,”380 the Supreme Court 

has “not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of 

excessive physical force beyond the point at which arrest ends and pretrial 

detention begins . . . .”381 The courts of appeals are in conflict over whether 

the Fourth Amendment or due process provides protection against force 

used after an arrest and before pretrial detention.382
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A. Unreasonable Force Claims Under the Fourth Amendment

Whether a police officer’s use of force violated the Fourth Amendment 

depends on the resolution of two issues: (1) In using force, did the 

official “seize” the suspect within the meaning of the Fourth Amendment?;383 and, if so, (2) Was the force objectively unreasonable?384 If 

an officer both seized the plaintiff and used objectively unreasonable 

force, then the plaintiff has established a Fourth Amendment violation. 

If no seizure occurred, then the use of force is not actionable under the 

Fourth Amendment. The force, however, might be actionable under the 

substantive due process protection of the Fourteenth Amendment.385

Resolving these two issues requires scrutiny of the Supreme Court’s 

definition of a “seizure” and of “objectively unreasonable” force.

The Supreme Court has articulated the following tests for determining when officers have seized an individual:

1. Whether “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”386

2. Whether, as a result of an official show of authority, a “reasonable person would have believed that he was not free to leave,” 

and the person in fact submitted to the assertion of authority.387

3. Whether there was “a governmental termination of freedom of 

movement through means intentionally applied.”388

These definitions focus on the assertion of governmental authority 

and the use of physical force. When officers use physical force, the first 

and third definitions of seizure are applicable. The first definition simply states that the use of physical force can effectuate a seizure; the third 

definition requires that the application of force be “intentional.” Thus, 

if a police officer accidentally hits someone with his vehicle, the officer 

used physical force, but no seizure occurred because the force was not 

intentional.389 Most § 1983 Fourth Amendment excessive force claims 

arise out of use of force by police during arrests or stops, which are 

clearly “seizures.” On the other hand, not all intentional uses of force by 

law enforcement officials are “seizures.” For example, the Tenth Circuit 

held that a suspect who was shot by a deputy sheriff, but continued 

his flight by climbing over a fence and fleeing the scene, was not seized 

within the meaning of the Fourth Amendment.390 A seizure requires 
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termination of an individual’s freedom of movement or acquisition of 

physical control.

As discussed in the following subsections, assuming that there has 

been a seizure, the issue becomes whether the officer’s use of force in effectuating the seizure was objectively reasonable. A model jury instruction for a Fourth Amendment excessive force claim is in the Appendix 

(see infra Model Instruction 2).

1. Tennessee v. Garner

Determining whether officers used unreasonable force under the 

Fourth Amendment when they seized a suspect is a fact-specific 

inquiry. In Tennessee v. Garner,

391 the Supreme Court held that the 

use of deadly force was objectively unreasonable where a police officer, who had reason to believe that a suspect had just burglarized a 

home, commanded the fleeing suspect to stop, and shot and killed 

him when he did not obey the officer’s command.392 The Court held 

that a governmental policy that allows the use of deadly force against 

all fleeing felons violates the Fourth Amendment; the use of deadly 

force is reasonable only if the officer has probable cause to believe 

that the suspect poses a risk of serious harm to the officer or others.393 The Court stated that “if the suspect threatens the officer with 

a weapon or there is probable cause to believe that he has committed 

a crime involving the infliction or threatened infliction of serious 

physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”394 Because 

burglary does not necessarily involve the infliction of “serious physical harm and because the suspect posed no danger to the officer or 

the community, the officer’s use of deadly force violated the Fourth 

Amendment.”395

The courts of appeals have prescribed caution in relying on the 

officer’s version of a deadly force encounter when the victim is not 

available to counter it. For example, in Scott v. Henrich,

396 the Ninth 

Circuit stated: 

Deadly force cases pose a particularly difficult problem under 

this regime because the officer defendant is often the only surviving eyewitness. Therefore, the judge must ensure that the officer 

is not taking advantage of the fact that the witness most likely to 

contradict his story—the person shot dead—is unable to testify. 
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The judge must carefully examine all the evidence in the record, 

such as medical reports, contemporaneous statements by the officer and the available physical evidence, as well as any expert 

testimony proffered by the plaintiff, to determine whether the 

officer’s story is internally consistent and consistent with other 

known facts. In other words, the court may not simply accept 

what may be a self-serving account by the police officer. It must 

also look at the circumstantial evidence that, if believed, would 

tend to discredit the police officer’s story, and consider whether 

this evidence could convince a rational factfinder that the officer 

acted unreasonably.397

2. Graham v. Connor

In Graham v. Connor,

398 the Supreme Court extended Garner’s “objective reasonableness” standard to any use of force by a law enforcement officer during an arrest, investigatory stop, or other seizure. 

The Court held “that all claims that law enforcement officers have 

used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed 

under the Fourth Amendment and its ‘reasonableness’ standard, 

rather than under a ‘substantive due process’ approach.”399 To determine the reasonableness of the force employed, courts must consider 

“the facts and circumstances of each particular case, including the 

severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is 

actively resisting arrest or attempting to evade arrest by flight.”400 The 

Court did not intend that these be the exclusive factors that may be 

relevant to the reasonableness inquiry. Courts must afford the officers some deference because they often have to make “split-second 

judgments—in circumstances that are tense, uncertain, and rapidly 

evolving—about the amount of force that is necessary in a particular situation.”401 This reasonableness inquiry is an objective one: “An 

officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s 

good intentions make an objectively unreasonable use of force constitutional.”402 Although plaintiffs need not prove that officers acted 

in bad faith in order to demonstrate that the use of force violated the 

Fourth Amendment,403 such evidence may be admissible to impeach 

the officers’ credibility, or on the question of punitive damages.404
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When multiple officers are sued on a Fourth Amendment excessive force claim, the district court must evaluate each officer’s liability 

separately.405 Where possible, courts should parse different or multiple uses of force.406 Lower federal courts commonly exclude evidence 

of police department directives on appropriate use of force on the 

rationale that the pertinent issue is whether the officer acted in an 

objectively reasonable manner under the Fourth Amendment, not 

whether officer complied with police department directives.407

3. Scott v. Harris

In Scott v. Harris,

408 the Supreme Court applied the Fourth Amendment “objective reasonableness” standard to a police officer’s use of 

force to end a high-speed police pursuit. The Court held that the 

defendant “police officer’s attempt to terminate a dangerous highspeed car chase that threatens the lives of innocent bystanders does 

not violate the Fourth Amendment, even when it places the fleeing 

motorist at risk of serious injury or death.”409

The plaintiff, Victor Harris, was traveling seventy-three miles 

per hour in a fifty-five-mile-per-hour zone. The defendant, Deputy 

Sheriff Timothy Scott, activated his blue lights and siren, but Harris 

failed to pull over, instead accelerating his speed. The videotape of 

the chase made from the pursuing police cruiser showed Harris’s

vehicle racing down narrow, two-lane roads in the dead of night 

at speeds that are shockingly fast. . . . Far from being the cautious 

and controlled driver the lower court depicts, what we see on 

the video more closely resembles a Hollywood-style car chase of 

the most frightening sort, placing police officers and innocent 

bystanders alike at great risk of serious injury.410

Deputy Scott had initially decided to terminate the encounter by employing a “Precision Intervention Technique” (PIT) maneuver, which 

causes a fleeing vehicle to spin to a stop, but instead “applied his push 

bumper to the rear of [Harris’s] vehicle. As a result, [Harris] lost control of his vehicle, which left the roadway, ran down an embankment, 

overturned, and crashed. [Harris] was badly injured and was rendered quadriplegic.”411

The majority of the Court, in an opinion by Justice Antonin Scalia, found that Deputy Scott’s actions constituted a seizure because 
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the officer terminated Harris’s freedom of movement through the 

means intentionally applied, namely, ramming his car from behind.412 The Court held, however, that the seizure did not violate the 

Fourth Amendment because it was objectively reasonable. Significantly, the summary judgment evidence included the videotape of 

the chase made from the pursuing police cruiser; the Court posted 

the video on its website. In his concurring opinion, Justice Stephen 

G. Breyer, found that the videotape made a difference, and urged the 

reader to view it.

Excessive force cases often present genuine disputed issues of 

material facts that make resolution on summary judgment inappropriate. In Scott, however, the Court held that the videotape enabled 

resolution of the case in favor of the defendant on summary judgment. There were no allegations or indications that the videotape 

was doctored or altered, or that it distorted the incident.413 The plaintiff’s version of the incident was “so utterly discredited” by the videotape “that no reasonable jury could have believed him.”414 The Court 

ruled that when, as in Scott, the material facts are not in dispute, the 

reasonableness of the use of force “is a pure question of law.”415 Even 

so, it had to “slosh . . . through the factbound morass of ‘reasonableness.’”416

The Court distinguished Tennessee v. Garner,

417 in which the 

Court had held that it was unreasonable for the police

to kill a “young, slight, and unarmed” burglary suspect, by shooting him ‘in the back of the head’ while he was running away on 

foot, and when the officer “could not reasonably have believed 

that [the suspect] . . . posed any threat,” and “never attempted to 

justify his actions on any basis other than the need to prevent an 

escape.”418

Scott stressed that the “necessity” for using deadly force referred to in 

Garner was not the necessity of preventing escape, but the necessity 

of preventing serious physical harm to the officers or others.419 Scott 

did not involve a police officer’s shooting of an unarmed, nonthreatening suspect, but an officer’s bumping a fleeing motorist whose 

flight posed an extreme danger to innocent individuals.

The Court in Scott said that “Garner did not establish a magical 

on/off switch that triggers rigid preconditions whenever an officer’s 
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actions constitute ‘deadly force.’ Garner was simply an application of 

the Fourth Amendment’s ‘reasonableness’ test to the use of a particular type of force in a particular situation.”420 The Scott Court further 

ruled that, in assessing the reasonableness of the officer’s use of force, 

it is appropriate to consider the relative culpability of the parties. It 

was significant that Harris

intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately 

produced the choice between two evils that Scott confronted. 

Multiple police cars, with blue lights flashing and sirens blaring, 

had been chasing [Harris] for nearly 10 miles, but he ignored 

their warning to stop. By contrast, those who might have been 

harmed had Scott not taken the action he did were entirely innocent.421

The Court also ruled that the police were not required to take the 

chance of calling off the pursuit and hoping for the best: “Whereas 

Scott’s action—ramming [Harris] off the road—was certain to eliminate the risk that [Harris] posed to the public, ceasing pursuit was 

not. . . . [T]here would have been no way to convey convincingly to 

[Harris] that the chase was off, and that he was free to go.”422 Furthermore, the Court said that it was

loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put 

other people’s lives in danger. It is obvious the perverse incentives 

such a rule would create: Every fleeing motorist would know that 

escape is within his grasp, if only he accelerates to 90 miles per 

hour, crosses the double-yellow line a few times, and runs a few 

red lights. . . . Instead, we lay down a more sensible rule: A police 

officer’s attempt to terminate a dangerous high-speed car chase 

that threatens the lives of innocent bystanders does not violate 

the Fourth Amendment, even when it places the fleeing motorist 

at risk of serious injury or death.423

The Court thus held that, because the car chase that Harris initiated 

posed substantial and immediate risk of serious physical injury to 

others, Deputy Scott’s attempt to terminate the chase by forcing Harris off the road was reasonable. Since no reasonable jury could find 

otherwise, Scott was entitled to summary judgment.
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Justice Ruth Bader Ginsburg, concurring, did not read the Court’s 

opinion as creating a mechanical per se rule, but rather as based on 

a fact-specific evaluation of reasonableness.424 By contrast, Justice 

Breyer read the Court’s decision as articulating a per se rule, namely, 

“‘[a] police officer’s attempt to terminate a dangerous high-speed car 

chase that threatens the lives of innocent bystanders does not violate 

the Fourth Amendment, even when it places the fleeing motorist at 

risk of serious injury or death.’”425 Breyer found that this statement 

by the majority “is too absolute,” and that “whether a high-speed 

chase violates the Fourth Amendment may well depend upon more 

circumstances than the majority’s rule reflects.”426 Justice John Paul 

Stevens, the sole dissenter, opined that “[w]hether a person’s actions 

have risen to a level warranting deadly force is a question of fact best 

reserved for a jury,”427 and that the Court in this case usurped the 

function of the jury by adopting a “per se rule that presumes its own 

version of the facts.”428

The most significant aspect of the Supreme Court’s decision in 

Scott is the ruling that an accurate videotape depicting the encounter between the plaintiff and the officer may provide the basis for 

resolving the § 1983 excessive force claim on summary judgment. 

Numerous lower court decisions have applied this aspect of Scott.

429

4. Specific Types of Force

Federal appellate court case law adjudicating § 1983 Fourth Amendment excessive force claims is so extensive that decisions can be 

grouped according to specific types of force—for example, handcuffing,430 pepper spray,431 canine force,432 and Tasers. Recent years have 

seen a large increase in § 1983 excessive force Taser cases.433 A Taser 

or stun gun is “a non-lethal device commonly used to subdue individuals resisting arrest. It sends an electric pulse through the body 

of the victim causing immobilization, disorientation, loss of balance 

and weakness. It leaves few, if any, marks on the victim.”434 As discussed in the next subsection, the lower court decisional law has generated an array of issues yet to be resolved by the Supreme Court.
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5. Other Fourth Amendment Excessive Force Issues

a)Officer’s Conduct Prior to Use of Force

The circuit courts have taken different positions on whether an 

officer’s conduct prior to the use of force should be considered 

in evaluating the objective reasonableness of his actions.435 Some 

courts “freeze the time frame” and consider only actions immediately before force was used, holding that the officer’s preshooting 

conduct is “not relevant and inadmissible.”436 In the Second Circuit the “[shooting officer’s] actions leading up to the shooting 

are irrelevant to the objective reasonableness of his conduct at the 

moment he decided to employ deadly force.”437 The Second Circuit 

considers only “the officer’s knowledge of circumstances immediately prior to and at the moment that he made the split-second 

decision to employ deadly force.”438 By contrast, the First Circuit 

considers “the actions of the government officials leading up to the 

seizure,” not just at the moment of the shooting.439

The Third Circuit holds that the circumstances considered in 

evaluating the objective reasonableness of the force used should 

not automatically exclude “all context and causes prior to the moment” force is employed because, after all, “[h]ow is the reasonableness of a bullet striking someone to be assessed if not by examining the preceding events?”440 As a slight variation, the Tenth 

Circuit holds that consideration may be given to the police officer’s conduct in the moments leading up to the suspect’s threat to 

use force if the officer’s conduct was so “immediately connected” 

to the suspect’s threat that it should be considered in evaluating 

the reasonableness of the officer’s forceful response.441 The Sixth 

Circuit takes a similar approach.442

b)Officer’s Mistake of Fact

Two recent courts of appeals decisions analyze how an officer’s 

mistake of fact should be evaluated when a Fourth Amendment, 

excessive force claim is subject to qualified immunity. In Henry v.

Purnell,

443 the Fourth Circuit held that a police officer’s shooting of 

a nonthreatening individual suspected of a misdemeanor, where 

the officer intended to use his Taser rather than his gun, violated 

clearly established Fourth Amendment law. The officer was thus 
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not entitled to summary judgment on the basis of qualified immunity. It was not objectively reasonable for the officer to believe he 

had drawn his Taser rather than his Glock. The Taser was “a foot 

lower” than the Glock, half its weight, and “had a thumb safety 

that had to be flipped to arm” it.444 The court concluded:

In the end, this may be a case where an officer committed a 

constitutionally unreasonable seizure as the result of an unreasonable factual mistake. If he did, he is no more protected [by qualified immunity] from civil liability than are the 

well-meaning officers who make unreasonable legal mistakes 

regarding the constitutionality of their conduct.445

In Torres v. City of Madera,

446 the complaint alleged that the defendant, Officer Marcy Noriega, fatally shot Everardo Torres in the 

chest with her Glock semiautomatic pistol, “believing it at the time 

to be her Taser M26 stun gun.”447 Following Purnell, the Ninth Circuit held that Officer Noriega was not entitled to summary judgment either under the Fourth Amendment or on the basis of qualified immunity. The court ruled that where an officer’s use of force 

is based on a mistake of fact, the pertinent Fourth Amendment 

question is whether the mistake was objectively reasonable, i.e., 

“whether a reasonable officer would have or should have accurately 

perceived that fact.”448 Under the circumstances, a reasonable jury 

could find that the officer’s

mistake was unreasonable because her own prior incidents of 

weapon confusion put her on notice of the risk of repetition, 

her daily practice drawing weapons at her sergeant’s instruction equipped her with the training to avoid such incidents, 

and the non-exigent circumstances surrounding Everardo’s 

deadly shooting [i.e., he was sitting handcuffed in back of 

the patrol car when he was shot] did not warrant such hasty 

conduct heightening the risk of weapon error.449

Therefore, a reasonable jury could find that the use of deadly force 

was excessive and thus in violation of the Fourth Amendment.

Nor was Noriega entitled to qualified immunity on summary 

judgment. The Ninth Circuit ruled that while the Fourth Amendment analysis considers the reasonableness of an officer’s mistake 

of fact, qualified immunity is concerned only with the reason-
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ableness of the officer’s mistake of law. Officer Noriega was not 

protected by qualified immunity because it was clearly established 

that unreasonably mistaken use of deadly force against an unarmed, non-dangerous suspect violated the Fourth Amendment.

c) Need for Deadly Force Instruction?

The federal courts generally define “deadly force” for Fourth 

Amendment purposes as force carrying a “substantial risk of causing death or serious bodily injury.”450 Prior to the Supreme Court’s 

decision in Harris, some courts held that when “deadly force” is 

used, the district court’s instructions should not merely articulate the general Graham standard of objective reasonableness, but 

should include the more specific “detailed” and “demanding” Garner standard.451 In deadly force cases, these decisions reasoned, the 

Graham standard does not adequately inform the jury about when 

a police officer may constitutionally use deadly force.452 However, 

the Harris decision—that Garner was simply an application of the 

generally applicable Fourth Amendment “objective reasonableness” standard—has created uncertainty as to whether a special 

instruction on deadly force is required.453

d)Is Summary Judgment Appropriate?

Whether an officer used excessive force in violation of the Fourth 

Amendment is normally a factual issue for the jury, and “summary 

judgment . . . in excessive force cases should be granted sparingly.”454 However, some Fourth Amendment excessive force cases can 

be decided on summary judgment,455 especially when qualified 

immunity is asserted as a defense.456 Further, as discussed earlier, 

summary judgment may be appropriate when there is a videotape 

of the incident that was not doctored or altered, and that accurately depicts the incident.457

e) Duty to Prevent Use of Excessive Force

An “on-looking” officer who has a realistic opportunity to prevent 

a fellow officer from inflicting deadly harm has a constitutional 

obligation to take reasonable steps to do so. The Seventh Circuit 

stated that “a defendant police officer may be held to account both 

for his own use of excessive force . . . as well as his failure to take 
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reasonable steps to attempt to stop the use of excessive force used 

by his fellow officers.”458

f) Right to Medical Treatment

Fourth Amendment excessive force claims are often accompanied 

by due process claims of failure to provide medical treatment. In 

City of Revere v. Massachusetts General Hospital,

459 the Supreme 

Court held that due process requires the state “to provide medical 

care to persons . . . who have been injured while being apprehended by the police.”460 The Court did not articulate a particular due 

process standard, but stated that “the due process rights of [detainees] are at least as great as the Eighth Amendment protections 

available to a convicted prisoner.”461 To prove an Eighth Amendment violation, a convicted prisoner must demonstrate deliberate 

indifference to a serious medical need.462 Many circuits apply the 

Eighth Amendment “deliberate indifference” standard for detainee medical care cases.463

B. Prisoner Excessive Force Claims Under Eighth Amendment

Unlike excessive force claims brought under the Fourth Amendment, 

in which the officer’s subjective motive or intent is irrelevant and the 

constitutionality of the use of force is evaluated under an objective reasonableness standard, malice is the central inquiry under the Eighth 

Amendment for a prisoner’s claim alleging the use of excessive force by 

prison guards. The Eighth Amendment standard is “whether force was 

applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”464 In two decisions, the Supreme 

Court held that this standard applies to the use of force by prison officers to control prisoners, whether to diffuse a riot465 or to impose discipline.466 A model jury instruction for an Eighth Amendment prisoner 

excessive force claim is in the Appendix (see infra Model Instruction 3).

In Whitley v. Albers,

467 the Supreme Court held that five factors are 

relevant in determining whether officers acted maliciously when they 

used force to quell a prison riot: (1) the need for force; (2) “the relationship between the need and the amount of force that was used”; (3) “the 

extent of injury inflicted”; (4) “the extent of the threat to the safety of 

staff and inmates”; and (5) “any efforts made to temper the severity of 

a forceful response.”468 The Court in Whitley said that courts should 
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defer to the judgment of prison officials, who typically have to make decisions regarding the use of force in pressured, tense circumstances.469

The Supreme Court later applied the Whitley standards in Hudson v. 

McMillian,

470 where officials did not face the exigencies of a prison riot. 

Hudson held that prisoners who assert Eighth Amendment excessive 

force claims are not required to establish “significant injury.”471 However, plaintiffs must allege something more than a de minimis injury 

unless the force used was “repugnant to the conscience of mankind.”472

Thus, the extent of an injury is just one factor in determining whether 

the official acted with malice.

Relying on Hudson, the Supreme Court, in Wilkins v. Gaddy,

473

held that a prisoner’s § 1983 Eighth Amendment excessive force claim 

should not be dismissed solely because the prisoner’s injuries were de 

minimis. The Court acknowledged that the extent of injury may be a 

relevant indicator of the amount of force used, and of whether “force 

could plausibly have been thought necessary.”474 The degree of injury 

may also be relevant on the issue of damages.475 “Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately 

counts. An inmate who is gratuitously beaten by guards does not lose 

his ability to pursue an excessive force claim merely because he has the 

good fortune to escape without serious injury.”476

The district judge must determine whether there is sufficient evidence for a prisoner excessive force claim to be submitted to a jury, 

or whether it should be decided as a matter of law on summary judgment or a motion to dismiss. In Whitley, the Supreme Court stated that 

“[u]nless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonness in 

the infliction of pain under the [Eighth Amendment] standard we have 

described, the case should not go to the jury.”477

C. Pretrial Detainee Excessive Force Claims Under Fourteenth Amendment

In Graham v. Connor,

478 the Supreme Court, citing Bell v. Wolfish,479

stated that “the Due Process Clause protects a pretrial detainee from the 

use of excessive force that amounts to punishment.”480 Later, however, 

the Court held, in County of Sacramento v. Lewis,

481 that to violate the 

substantive due process component of the Fourteenth Amendment, an 

official’s actions must “shock the conscience.”482 Officials commit con-
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science-shocking actions when they use force with an intent to harm 

that is “unrelated to the legitimate object of arrest.”483 The Court derived this malice standard by likening a police officer’s actions during 

a high-speed pursuit to a prison guard’s actions during a riot:484 both 

must act quickly with little time for reflection. However, the Court in 

Lewis did not state that the “shocks-the-conscience” standard applies 

specifically to excessive force claims raised by pretrial detainees. It is 

thus unclear whether the Supreme Court in Lewis intended to modify 

the holding in Wolfish.

There is a conflict among the circuits concerning the appropriate due 

process standard for detainee excessive force claims.485 For example, the 

First Circuit applies the Bell punishment standard,486 while the Third, 

Fourth, Fifth and Eleventh Circuits have adopted a malice standard, i.e., 

whether the force was applied in a good-faith effort to restore discipline 

or maliciously and sadistically to cause harm.487 The Seventh Circuit 

holds that the Bell standard applies to detainee due process challenges 

to general practices, rules, and restrictions on pretrial confinement, but 

that detainee challenges to specific acts or failures to act by government 

officials are governed by the deliberate indifference test.488 A federal 

district judge faced with a detainee excessive force claim must apply 

the controlling circuit decisional law.489 If such decisional law does not 

exist, the author recommends application of the Bell standard.

Analyzing the substantive due process rights of pretrial detention in 

detail, the Supreme Court stated in Bell:

In evaluating the constitutionality of conditions or restrictions 

of pretrial detention that implicate only the protection against 

deprivation of liberty without due process of law, we think that 

the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process Clause, a 

detainee may not be punished prior to an adjudication of guilt 

in accordance with due process of law....

A court must decide whether the disability is imposed for 

the purpose of punishment or whether it is but an incident of 

some other legitimate governmental purpose. Absent a showing 

of an expressed intent to punish on the part of detention facility 

officials, that determination generally will turn on “whether an 

alternative purpose to which [the restriction] may rationally be 

connected is assignable for it and whether it appears excessive 
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in relation to the alternative purpose....” Thus, if a particular 

condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without 

more, amount to “punishment.” Conversely, if a restriction or 

condition is not reasonably related to a legitimate goal—if it is 

arbitrary or purposeless—a court permissibly may infer that the 

purpose of the governmental action is punishment that may not 

constitutionally be inflicted upon detainees qua detainees.490

In the author’s view, the Supreme Court decisions in Graham and 

Bell strongly support the application of the due process punishment 

standard to detainee excessive force claims.491

VI. Arrests and Searches

Section 1983 complaints challenging law enforcement arrests, stops, frisks, 

searches, and seizures of property require the federal district court to determine the Fourth Amendment limitations on these law-enforcement 

actions.492 Given that the Supreme Court has decided more than three 

hundred Fourth Amendment cases since its decision in Boyd v. United States493—the first Supreme Court decision seriously considering the 

Fourth Amendment—comprehensive coverage of this voluminous subject 

is beyond the scope of this monograph.

A. Arrests

The critical issue in most § 1983 unconstitutional arrest cases is whether the officer had probable cause to arrest. Probable cause is a complete defense to a § 1983 unconstitutional arrest claim brought under 

the Fourth Amendment.494 Probable cause exists when the “facts and 

circumstances within the officer’s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the 

circumstances shown, that the suspect has committed, is committing, 

or is about to commit an offense.”495 An officer cannot close her eyes 

to potentially exculpatory evidence, but once she has evidence from 

a reasonably credible source, she has “no constitutional obligation to 

conduct any further investigation before making an arrest.”496 Because 

probable cause is a wholly objective standard, viewed from the perspective of a “reasonable officer,” the officer’s subjective motivation is irrelevant.497 A model jury instruction for a Fourth Amendment false arrest 

claim is in the Appendix (see infra Model Instruction 4).
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A warrantless arrest in a public place comports with the Fourth 

Amendment so long as there was probable cause to arrest the suspect 

for some crime—the probable cause need not be for the crime articulated by the arresting officer, or even for a “closely related” crime.498

Further, an arrest in a public place supported by probable cause comports with the Fourth Amendment even if the arrest violates a state law 

which authorizes only a citation for the particular offense.499 In sharp 

contrast to arrests in public places, an arrest in the arrestee’s home generally requires an arrest warrant and reason to believe the suspect is in 

the home.500

There is a conflict among the circuits as to who bears the burden of 

proof in a § 1983 claim based on unconstitutional arrest.501 Some courts 

hold that the plaintiff has the burden of proving that the arrest violated 

the Fourth Amendment.502 The Ninth Circuit, for instance, held that a 

§ 1983 plaintiff “at all times had the ultimate burden of proving to the 

jury that she had been seized unreasonably in violation of the Fourth 

Amendment.”503 In a subsequent decision, the Ninth Circuit explained 

that 

[a]lthough the plaintiff bears the burden of proof on the issue of 

unlawful arrest, she can make a prima facie case simply by showing 

that the arrest was conducted without a valid warrant. At that point, 

the burden shifts to the defendant to provide some evidence that 

the arresting officers had probable cause for a warrantless arrest. 

The plaintiff still has the ultimate burden of proof, but the burden 

of production falls on the defendant.504

The Tenth Circuit ruled that when a § 1983 plaintiff alleges arrest 

without probable cause, the defendant has the burden of proving probable cause.505 The position finds support in the common-law principle 

that probable cause is a defense to a false arrest claim—a principle that 

has been held to apply to § 1983 unconstitutional arrest claims.506

B. Stop and Frisk

Many § 1983 actions contest police stops and frisks.507 In the Supreme 

Court’s landmark decision in Terry v. Ohio,

508 the Court held that a 

stop is a “seizure” and a frisk is a “search” within the meaning of the 

Fourth Amendment. However, because a “stop” is a lesser intrusion 

than an arrest, and a “frisk” is not a full-blown search, a “stop and frisk” 
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is governed by a lesser standard than probable cause, namely reasonable 

suspicion. The Court in Terry said that the police officer must “point 

to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.”509 There 

must be reasonable suspicion to justify both the stop and the frisk. To 

justify a stop, the officer “must have a particularized and objective basis 

for suspecting the particular person stopped of criminal activity.”510

When a person is lawfully stopped, the officer may frisk him if the 

officer has a particularized and objective basis for concluding that the 

suspect is armed and dangerous.511 Like probable cause, reasonable suspicion is an objective, “reasonable person” test under which the officer’s 

subjective belief is irrelevant.512 Leading Supreme Court decisions applying the reasonable suspicion standard are cited here.513

C. Searches

Large numbers of § 1983 actions allege that law enforcement officers 

conducted a “search” in violation of the Fourth Amendment. The alleged search may have occurred in conjunction with an arrest of the 

plaintiff, or independent of any arrest.514 Supreme Court decisional 

law governing searches is complex and extensive.515 Leading Supreme 

Court cases for particular Fourth Amendment search issues especially 

likely to be relevant in § 1983 litigations are cited in the endnote.516

The cases are in conflict concerning the burden in § 1983 actions 

challenging warrantless searches.517 Courts of appeals decisions consistently state that probable cause normally presents a question of fact for 

the jury “unless there is only one reasonable determination possible.”518

Therefore, “a district court may conclude ‘that probable cause did exist 

as a matter of law if the evidence, viewed most favorably to Plaintiff, 

reasonably would not support a contrary factual finding,’ and may enter summary judgment accordingly.”519 It seems that federal courts are 

able to resolve a large percentage of probable cause issues as a matter of 

law. Further, Fourth Amendment challenges to arrests and searches are 

subject to qualified immunity.520

D. Separate Analysis of Different Aspects of Officer’s Conduct (Muehler v.

Mena)

In many § 1983 Fourth Amendment cases it is necessary to analyze the 

different components of the law enforcement officer’s actions separate-
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ly. The Supreme Court’s decision in Muehler v. Mena521 provides a valuable illustration. In that case, the plaintiff, an occupant of the premises 

being searched, was detained, handcuffed, and questioned while the 

officers executed the search warrant; the Court analyzed each of these 

actions separately and found no violation of the Fourth Amendment.522

On the detention issue, the Court held that its decision in Michigan v. 

Summers523 established that police officers who execute a search warrant 

may detain any individuals on the premises.524 An officer’s authority to 

detain incident to a search supported by probable cause is “implicit”; it 

does not depend on the “quantum of proof justifying detention or the 

extent of the intrusion to be imposed by the seizure.”525 On the handcuffing claim, Muehler held that, under the particular circumstances, 

the plaintiff’s “detention in handcuffs for the length of the search was 

consistent with . . . Summers.”526 The handcuffing was reasonable because “this was no ordinary search” but “a search for weapons and a 

wanted gang member reside[d] on the premises.”527 Justice Kennedy, 

concurring, pointed out that excessively tight or prolonged handcuffing 

may give rise to a § 1983 Fourth Amendment excessive force claim.528

Finally, the Court held that police questioning of a person detained 

during the execution of a search warrant does not require independent 

probable cause because “‘mere police questioning does not constitute a 

seizure.’”529

VII. Malicious Prosecution Claims Under Fourth Amendment

The federal courts have had difficulty determining whether a § 1983 complaint states a proper constitutional claim for “malicious prosecution.” Prior to the Supreme Court’s 1994 decision in Albright v. Oliver,

530 some lower 

courts used the common-law elements of a malicious prosecution tort to 

establish a substantive due process malicious prosecution claim. These elements are (1) institution of a criminal prosecution; (2) without probable 

cause; (3) with malice; and (4) termination in favor of the accused.531 It is 

now established, however, that state law malicious prosecution claims do 

not constitute constitutional claims simply because they are “garbed in the 

regalia of § 1983.”532

In Albright the justices wrote six separate opinions reflecting a variety 

of views about whether a claim that a criminal prosecution was undertaken without probable cause could be premised on substantive due process. 
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Because there was no majority opinion, it is difficult to determine what the 

Court resolved.

The plurality opinion, written by Chief Justice Rehnquist (joined by 

Justices O’Connor, Scalia, and Ginsburg), found that an individual who 

has been arrested cannot premise a claim that he was prosecuted without 

probable cause upon substantive due process, but may be able to premise 

such a claim on the Fourth Amendment. However, because the plaintiff did 

not present a Fourth Amendment claim, the Court did not decide whether 

he actually had a valid Fourth Amendment claim. In fact, the Court has 

“never explored the contours of a Fourth Amendment malicious-prosecution suit under § 1983.”533 Arguably the concurrences of Justices Kennedy 

(joined by Justice Thomas) and Souter can be read as agreeing with the 

plurality’s rejection of substantive due process as the basis for the claim, 

and as leaving open the possibility of the claim being premised on the 

Fourth Amendment.534

It is worthwhile to highlight some of the other positions of the justices 

in Albright. Justice Ginsburg, in her concurring opinion, found that the 

Fourth Amendment did apply to the facts of Albright’s case because the 

restraint imposed on a person arrested on a criminal charge does not end 

upon release from official custody and continues throughout the criminal 

trial.535 For example, he must appear in court when ordered to do so, and 

may need permission to travel beyond the court’s jurisdiction. The arrestee 

is thus subject to a “continuing seizure” throughout the criminal proceeding that requires ongoing compliance with the Fourth Amendment. She 

found, however, that Albright abandoned his Fourth Amendment claim.

Justice Kennedy, joined by Justice Thomas, concurred in the judgment, 

asserting that a malicious prosecution claim is actually a procedural due 

process claim.536 He acknowledged that the Due Process Clause protects 

more than the liberty interests specified in the Bill of Rights. However, “the 

due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prosecution.”537 Kennedy stated that, 

in some circumstances, the challenged governmental actions alleging “malicious prosecution” may state a violation of procedural due process, but 

found such a claim was not viable in this case because state law provided 

the plaintiff with a remedy.538

Justice Souter, concurring, rejected the substantive due process claim 

for two reasons. First, he opined that a substantive due process claim is 
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available only when the textually explicit provisions of the Bill of Rights 

do not apply, and the plaintiff’s substantive due process claim is “substantial.”539 Second, the types of injuries alleged were compensable under the 

Fourth Amendment, yet the plaintiff, Albright, had not relied on it.540 Souter recognized that sometimes injuries may occur before there is a Fourth 

Amendment seizure; whether these injuries are actionable under substantive due process, he stated, was not presented by the facts of this case.541

In his dissent, Justice Stevens, joined by Justice Blackmun, concluded 

that the plaintiff stated a violation of substantive due process.542

Given the variety of views articulated by the justices, it is not surprising 

that Albright “spawned controversy and confusion in the lower courts.”543

The courts of appeals disagree, inter alia, over whether there are circumstances in which an alleged malicious prosecution may violate the Fourth 

Amendment.544 Some decisions hold that a § 1983 claim may be premised 

upon an unreasonable seizure under the Fourth Amendment combined 

with the common-law elements of malicious prosecution, raising questions of, inter alia, probable cause to prosecute, malice, and favorable termination,545 while other circuits have taken a purely Fourth Amendment 

approach.546 The Third Circuit held, 2–1, that the § 1983 claim may lie 

when some, though not all, criminal charges are terminated in favor of the 

criminal defendant.547 Illustrative courts of appeals decisions are cited in 

the note, below.548

Clearly, referring to the § 1983 claim as a “malicious prosecution” claim 

clouds rather than clarifies the analysis because, when all is said and done, 

the plaintiff must establish a violation of a specific, constitutionally protected right.549

VIII. Conditions-of-Confinement Claims Under Eighth Amendment

When challenging their conditions of confinement, prisoners must prove 

that the conditions constituted “cruel and unusual punishment” within 

the meaning of the Eighth Amendment. The Eighth Amendment does not 

require comfortable prisons, but forbids inhumane conditions.550 The Supreme Court has defined the Eighth Amendment standard as containing 

both subjective and objective components.551 The subjective component 

requires proof that prison officials acted with subjective deliberate indifference,552 while the objective component requires proof that the depri-
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vation was “sufficiently serious.”553 Several Supreme Court decisions shed 

light on the meaning of these two components.

In Estelle v. Gamble,

554 a case involving medical care of prisoners, the 

Supreme Court held that to state a claim for medical treatment under the 

Eighth Amendment, a prisoner must prove that prison officials were deliberately indifferent to the prisoner’s “serious medical needs.”555 The Court 

determined that the Eighth Amendment was not violated by negligent 

medical care. Thus, medical malpractice is not a constitutional violation 

simply because the plaintiff is a prisoner.556

In an important decision, Cotts v. Osafo,

557 the Seventh Circuit held that, 

because prison medical treatment claims require the plaintiff to prove deliberate indifference to a serious medical need, the jury instructions should 

not require him to prove “cruel and unusual punishment.”558 The court 

reasoned that “cruel and unusual punishment language” in the instructions may mislead the jury into concluding that the plaintiff has to prove 

“that the defendants affirmatively ‘punished’ him.”559 The court in Cotts

also ruled that the jury instructions on a prisoner medical treatment claim 

should not require the plaintiff to prove damages at the liability stage because “[d]amages are not an element of liability in a deliberate indifference 

claim.”560

In Wilson v. Seiter,

561 the Supreme Court interpreted Estelle to govern 

all claims challenging prison conditions.562 Wilson narrowly defined both 

the subjective and objective components, holding that the subjective deliberate indifference component is a necessary element of all prison condition claims.563 Inhumane prison conditions alone do not constitute an 

Eighth Amendment violation.564 The Court also held that the objective 

component requires proof that the deprivation was “serious,” that is, one 

addressing a specific, basic human need like “food, warmth, or exercise.”565

“Nothing so amorphous as ‘overall conditions’ can rise to the level of cruel 

and unusual punishment when no specific deprivation of a single human 

need exists.”566 The Court left open whether inadequate funding was a defense to a finding of subjective deliberate indifference.567 The concurrence 

in Wilson, however, noted that the courts of appeals have rejected such a 

“cost” defense.568

Subsequently, the Supreme Court held, in Helling v. McKinney,

569 that 

a prisoner stated an Eighth Amendment claim in challenging his confinement with a cell mate who smoked five packs of cigarettes a day.570 The 
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Court found that this case was similar to Estelle because the challenge concerned a prisoner’s health. Further, it explained, the Eighth Amendment 

applies equally to claims that prison conditions are causing current physical harm, and claims that prison conditions may cause future harm.571

In Farmer v. Brennan,

572 the Court defined the term “deliberate indifference.”573 Recognizing an Eighth Amendment duty on the part of prison 

officials to protect prisoners from harming each other, the Court explained 

that the “deliberate indifference” standard in this context is subjective, not 

objective. Deliberate indifference requires proof that the official actually 

knew of a substantial risk of serious harm and failed to act.574 The Court 

flatly rejected objective deliberate indifference—a showing that officials 

knew or should have known of the harm, regardless of their actual state 

of mind—as the correct standard in “inhumane conditions of confinement” cases.575 Because deliberate indifference “describes a state of mind 

more blameworthy than negligence,”576 the Court adopted the subjective 

definition of deliberate indifference. This subjective standard protects the 

prison officials who either were not aware of the facts giving rise to the 

risk of harm, or who failed to deduce the risk of serious harm.577 The jury, 

however, can infer that the official actually knew of the risk based on the 

same type of circumstantial evidence that is used to prove objective deliberate indifference, i.e., a risk of harm sufficiently apparent that the officer 

should have known of it.578 The Court said that this issue of fact can be 

demonstrated “in the usual ways, including inference from circumstantial 

evidence, . . . and a factfinder may conclude that a prison official knew of a 

substantial risk from the very fact that the risk was obvious.”579

The subjective and objective components analyzed in conditions-of-confinement claims under the Eighth Amendment are also part 

of the Court’s analysis of prisoner excessive force claims under the Eighth 

Amendment.580

The Supreme Court has thus recognized two different subjective components under the Eighth Amendment—deliberate indifference and malice.581 The Court derived these different states of mind by balancing a prisoner’s interest in bodily integrity against the need for institutional order.582

Malice is the proper standard in prisoner excessive force cases, because in 

the prison discipline or riot contexts exigencies exist. However, in general 

prison condition litigation, where prison officials do not encounter these 

difficult circumstances, deliberate indifference is the proper standard.583
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IX. First Amendment Claims

Two frequently raised § 1983 claims by government employees involve the 

First Amendment right to free speech. The first type of claim contests adverse employment decisions allegedly based on an employee’s affiliations 

with political parties. The second type contests an adverse employment 

decision allegedly based on an employee’s speech.

A. Public Employee Political Affiliation Claims

A plurality of the Supreme Court first held, in Elrod v. Burns,

584 that 

dismissals of public employees because of their political affiliations 

generally violate the First Amendment and must be limited to “policy-making positions.” Four years later, however, the Court, in Branti v. 

Finkel,

585 modified the Elrod rule, stating that “the ultimate inquiry is 

not whether the label ‘policymaker’ or ‘confidential’ fits a particular position,” but whether the hiring authority can demonstrate that party affiliation is “an appropriate requirement for the effective performance of 

the public office involved.”586 The Branti Court indicated that the plaintiff makes out a prima facie case by showing that she was discharged 

because of her political affiliation.587 In Rutan v. Republican Party of 

Illinois,

588 the Supreme Court held that the First Amendment prohibits 

political patronage as the sole basis for decisions concerning “promotions, transfers, and recalls after layoffs.”589 It explained that the government’s right to take action against deficient performance effectively 

protects the government’s interests when addressing the employment 

of staff members. However, when evaluating high-level employees, the 

government may consider “who will loyally implement its policies.”590

Although the Court recognized two classes of employees—staff members and high-level employees—it nevertheless explained that performance is the central issue, with political affiliation being a permissible 

factor with respect only to the higher-level employees. The lower federal courts frequently experience difficulties in determining whether political affiliation is an “appropriate” consideration for particular public 

employment positions.591

A defendant who is sued on a public employment, political affiliation claim can prevail under Mt. Healthy’s592 dual motive doctrine, 

by demonstrating that even conceding that he considered the plaintiff’s political affiliation, he would have taken the same adverse action 
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anyway for permissible reasons. As the First Circuit put it, “even if a 

plaintiff shows an impermissible political motive, he cannot win if the 

employer shows that it would have taken the same action anyway, say, 

as part of a bona fide reorganization.”593

Courts have properly stressed that public employee claims that 

employment decisions were made on the basis of political affiliation 

must be distinguished from claims that employment decisions were 

motivated by “cronyism” and the like.594 “‘Back-scratching, log-rolling, 

horse-trading, institutional politics, envy, nepotism, [and] spite’ are not 

illegal motivations for employment decisions.”595 There is thus an important First Amendment 

distinction between a public official who chooses to hire friends, 

relatives, neighbors or college buddies, and one who refuses to hire 

those who failed to make campaign contributions, join her political party or attend political rallies. Although the first public official 

may be practicing bad policy, she is not practicing political affiliation discrimination that violates First Amendment rights.596

 The Court, in O’Hare Truck Service, Inc. v. City of Northlake,

597 held 

that government contractors have First Amendment protection against 

adverse action because of their political affiliation. O’Hare rejected 

drawing a distinction between independent contractors and public employees, because contractors are not less dependent on income than are 

employees.598

B. Public Employee Free-Speech Retaliation Claims

When a public employee claims that her employer made an adverse employment decision because of the employee’s speech, three legal issues 

are central: (1) whether the speech was pursuant to the employee’s official duties;599 (2) whether the speech was a “matter of public concern”; 

and, if the speech was not pursuant to official duties and was a matter of 

public concern;600 (3) whether the employee’s speech interest outweigh 

the government’s interest in effective governmental operations.601

A public employee’s speech is protected by the Free Speech Clause 

only if it is of public concern.602 In determining what constitutes a matter of public concern, courts should consider “the content, form and 

context” of the statement.603 An employee’s mere personal grievance is 

not a matter of public concern; the speech must have broader social or 
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political interest.604 The employee must speak on “matters in which the 

public might be interested as distinct from wholly personal grievances.”605 Most courts hold that the employee’s motive is relevant, though 

not necessarily dispositive, in determining whether her speech was of 

public concern.606 Whether the speech was a matter of public concern is 

an issue of law for the court.607

 Employers need not determine what the employee actually said;608

they must only reasonably investigate the nature of the employee’s 

speech.609 If there was a substantial likelihood that the employee engaged in protected speech, a supervisor must investigate before making 

an adverse employment decision regarding the employee.610 Only procedures outside the range of what a reasonable supervisor would use 

will be found unreasonable. The reasonableness standard is objective; 

the subjective good faith of the employer is not controlling.611

Under the Supreme Court’s decision in Garcetti v. Ceballos,

612 speech 

on a matter of public concern will nevertheless be unprotected under 

the First Amendment if it was pursuant to the employee’s official responsibilities.613 The employee’s official job description may not be dispositive of whether the employee’s speech was pursuant to her official 

duties. The Court stated that the

proper inquiry is a practical one. Formal job descriptions often 

bear little resemblance to the duties an employee is actually expected to perform and the listing of a given task in an employee’s job 

description is neither necessary nor sufficient to demonstrate that 

conducting the task is within the employee’s professional duties for 

First Amendment purposes.614

In Lane v. Franks,

615 the § 1983 plaintiff, a public employee, claimed 

that he was fired in violation of the First Amendment for giving truthful testimony pursuant to subpoena in a criminal case. The Supreme 

Court held that a public employee’s truthful testimony on a matter of 

public concern, given pursuant to subpoena and outside of his ordinary 

job responsibilities, is protected First Amendment speech. The Court 

reasoned that anyone who testifies in court is obligated to give truthful 

testimony, and that this obligation is distinct and independent from the 

employee’s employment obligations. “Truthful testimony under oath 

by a public employee outside the scope of his ordinary job duties is 

speech as a citizen for First Amendment purposes. That is so even when 
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the testimony relates to his public employment or concerns information learned during that employment.”616 The Court thus clarified that 

“[t]he critical question under Garcetti is whether the speech at issue is 

itself ordinarily within the scope of an employee’s duties, not whether it 

merely concerns those duties.”617 Justice Thomas’s concurring opinion 

stressed that the Court in Lane did not address whether public employees, such as police officers, crime scene technicians, and laboratory 

analysts, who testify as a routine part of their job responsibilities, are 

engaged in protected First Amendment activity. 

The lower federal courts have disagreed over whether the “pursuant 

to official duties” issue is an issue of law for the court,618 an issue of fact 

for the jury,619 or a mixed question of law and fact.620 In the author’s 

view, when the scope of the employee’s duties is clearly defined in a 

written policy, whether the employee’s speech was pursuant to her official duties will normally be an issue of law for the court. On the other 

hand, when an issue is raised whether the employee’s duties in practice 

differ from the written policy, the scope of the employee’s authority will 

likely present an issue of fact. The Garcetti issue of whether employee speech was pursuant to official duties has generated a tremendous 

amount of lower court decisional law.621

Under the balancing test established in Pickering v. Board of Education,

622 even if an employee’s speech was of public concern and not pursuant to her official duties, the employee’s speech will not be protected 

if the employee’s speech interests are outweighed by the government’s 

interest in efficient operations. Government interests are likely to prevail when the employment relationship requires confidentiality or personal loyalty, or when the speech threatens the maintenance of employment discipline or harmony.623 In evaluating the disruptive impact of 

the employee’s speech, courts are to show “a wide degree of deference 

to the employer’s judgment” when “a close working relationship [is] 

essential to fulfilling public responsibilities.”624 If, however, an employee does not have a “confidential, policymaking, or public contact role,” 

the level of disruptiveness would probably be “minimal.”625 Pickering

balancing is an issue of law for the court.626 Because Pickering balancing 

entails an intense ad hoc evaluation based on the facts of the particular 

case, courts often find that the law was not clearly established, and the 

defendant thus protected by qualified immunity.627
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Of course, if the plaintiff succeeds on the issues of public concern, 

official duties, and Pickering balancing, the factual issue whether the 

employee’s speech was a motivating factor in the adverse employment 

decision still needs to be resolved.628

C. Prisoner Retaliation Claims

Prisoners frequently allege that prison officials retaliated against them 

for engaging in constitutionally protected activity, such as the filing of 

a judicial proceeding or prison grievance.629 To establish a First Amendment retaliation claim, the prisoner must show that (1) he engaged in 

constitutionally protected speech or conduct, (2) the defendant took 

adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action.630 The adverse action must be “sufficient to deter a person of ordinary firmness” 

from exercising his constitutional rights.631 The causal connection requires the plaintiff to prove that his protected First Amendment activity 

was a “motivating factor” for the retaliatory adverse action.632 The inmate need not prove that his speech was a matter of public concern.633

An inmate alleging a First Amendment retaliation claim need not prove 

that he had an independent liberty interest in the privilege he was denied.634

Federal courts approach prisoner First Amendment retaliation 

claims “with skepticism and particular care” because “virtually any adverse action taken against a prisoner by a prison official—even those 

otherwise not rising to the level of a constitutional violation—can be 

characterized as a constitutionally proscribed retaliatory act.”635 In other words, prisoner retaliation claims are “prone to abuse since prisoners 

can claim retaliation for every decision they dislike.”636 On the other 

hand, the prisoner is not necessarily required to produce direct evidence to establish retaliatory motive.637 “[C]ircumstantial evidence may 

be . . . sufficient to raise a genuine issue of material fact [regarding the 

prison official’s retaliatory motives] precluding the grant of summary 

judgment.”638

D. Retaliatory Prosecution and Retaliatory Arrest

In Hartman v. Moore,

639 the Supreme Court held that a plaintiff who asserts a First Amendment claim of retaliatory prosecution against a law 

enforcement officer must plead and demonstrate an absence of prob-
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able cause. The Court reasoned that when there is probable cause for 

the prosecution, the causal relationship between the law enforcement 

officer’s conduct and the prosecutor’s decision to prosecute is too uncertain to allow the claim for relief against the law enforcement officer 

to proceed. The claim against the prosecutor based on her decision to 

prosecute would be barred by absolute prosecutorial immunity.640

It is unclear whether Hartman extends to a First Amendment claim 

of retaliatory arrest. Some circuits applied Hartman to a retaliatory arrest claim and held that the plaintiff must establish an absence of probable cause.641 The Tenth Circuit, however, distinguished Hartman and 

held that a First Amendment retaliatory arrest claim may be asserted 

even when the arrest is supported by probable cause.642

In Reichle v. Howards,

643 the Supreme Court held that given the uncertainty in the law of First Amendment retaliatory arrest claims, the 

defendants/officers were protected by qualified immunity. The Court 

acknowledged that Hartman’s rationale for retaliatory prosecution 

claims does not fully apply to retaliatory arrest claims because, while 

the former necessarily involve the animus of one official, the law enforcement officer, and the injurious action of the other, the prosecutor, 

“in many retaliatory arrest cases, it is the officer bearing the alleged 

animus who makes the injurious arrest.”644 On the other hand, like retaliatory prosecution claims,

retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury. An 

officer might bear animus toward the content of a suspect’s speech. 

But the officer may decide to arrest the suspect because his speech 

provides evidence of a crime or suggests a potential threat.645

The Supreme Court, however, did not resolve whether Hartman applied to a retaliatory arrest claim, holding that only because the law on 

the issue was not clearly established were the defending officers protected by qualified immunity.646

X. Equal Protection “Class-of-One” Claims

The federal district courts are faced with a steady stream of so-called 

“class-of-one” equal protection claims filed under § 1983. In Village of Willowbrook v. Olech,

647 the Supreme Court recognized a “class-of-one” claim 

under the Equal Protection Clause. The plaintiff stated a proper § 1983 
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claim based on her allegations that the Village “intentionally treated [her] 

differently from others similarly situated and there was [no] rational basis 

for the difference in treatment.”648 The Court ruled that these allegations 

stated an equal protection claim “quite apart from the Village’s subjective 

motivation . . . .”649

In Engquist v. Oregon Department of Agriculture,

650 the Court held that 

public employees are categorically barred from asserting class-of-one 

equal protection claims, no matter how arbitrarily an employee may have 

been singled out for disadvantageous treatment. Government employers 

typically have great discretion in dealing with their employees, and this 

discretion would be undermined if employees were permitted to assert 

“class-of-one” claims.651 The Court said that its decision rejecting public 

employee “class-of-one” equal protection claims comported with the principle “that government has significantly greater leeway in its dealings with 

citizen employees than it does when it brings its sovereign power to bear 

on citizens at large.”652

The federal courts have been struggling to determine the contours of 

the class-of-one doctrine in order to prevent every mistake by a government officer and “every claim for improper provision of municipal services or for improper conduct of an investigation” from being turned into 

a § 1983 constitutional suit.653 The law in this area is in a state of flux, and 

it is important that the district court apply the most recent decisional law 

of the governing circuit.654
75

6. Enforcement of Federal

Statutes Under § 1983

Some federal statutory rights may be enforced under § 1983. In Maine v. 

Thiboutot,

655 the Supreme Court rejected the argument that only federal 

statutes dealing with “equal rights” or “civil rights” are enforceable under 

§ 1983. It held that § 1983’s reference to “laws” of the United States means 

what it says, and, therefore, that all federal statutes are enforceable under 

§ 1983 against defendants who acted under color of state law. However, 

as discussed below, subsequent Supreme Court decisions substantially cut 

back the decision in Thiboutot by holding that not all federal statutes are 

enforceable under § 1983.656 These decisions hold that a federal statute is 

not enforceable under § 1983 if it either (1) does not unambiguously create a federal right in the plaintiffs, or (2) contains enforcement remedies 

intended by Congress to be the exclusive means of enforcement.

I. Enforcement of Federal “Rights”

For a federal statute to be enforceable under § 1983, “a plaintiff must assert 

the violation of a federal right, not merely a violation of federal law.”657

The Supreme Court has identified three factors to determine whether a 

particular federal statutory provision creates an enforceable federal right 

in favor of the plaintiff:

First, Congress must have intended that the provision in question benefit the plaintiff.658

Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence.659

Third, the statute must unambiguously impose a binding obligation on 

the States. In other words, the provision giving rise to the asserted right 

must be couched in mandatory, rather than precatory, terms.660

The pertinent issue is not whether the federal statutory scheme creates enforceable rights, but whether the specific federal statutory provision at issue 

creates enforceable rights.661

In Pennhurst State School & Hospital v. Halderman,

662 the Supreme 

Court held that 42 U.S.C. § 6009, the “bill of rights” provision of the De-
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velopmental Disabilities Assistance and Bill of Rights Act, did not create 

enforceable rights in favor of the developmentally disabled.663 The Court 

identified the inquiry as whether the statutory provisions at issue “imposed an obligation on the States to spend state money to fund certain 

rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms.”664 Applying the principle that “if 

Congress intends to impose a condition on the grant of federal moneys, 

it must do so unambiguously,”665 the Court found that “the provisions of 

§ [6009] were intended to be hortatory, not mandatory.”666 “Congress intended to encourage, rather than mandate, the provision of better services 

to the developmentally disabled.”667 Therefore, the Court held that § 6009 

did not create substantive rights in favor of the mentally disabled to “appropriate treatment” in the “least restrictive” environment, and thus was 

not enforceable through § 1983.668

In its next several decisions concerning the enforcement of federal statutes under § 1983, the Supreme Court found that federal statutes created 

enforceable rights. In Golden State Transit Corp. v. City of Los Angeles,

669

the Court held that Golden State could sue for damages under § 1983 to 

remedy the violation of its right against unfair labor practices under the 

National Labor Relations Act670 not to have the renewal of its taxi license 

conditioned on the settlement of a pending labor dispute.671 The Court 

found that the federal statute created enforceable rights in the plaintiff and 

did not contain a comprehensive enforcement scheme precluding enforcement under § 1983.672

In Wright v. City of Roanoke Redevelopment & Housing Authority,

673 the 

defendant was a public housing authority subject to the Brooke Amendment’s “ceiling for rents charged to low-income people living in public 

housing projects.”674 The Department of Housing and Urban Development in its implementing regulations, had “consistently considered ‘rent’ 

to include a reasonable amount for the use of utilities.”675 Public housing tenants brought suit under § 1983 alleging that the Roanoke Housing 

Authority had “imposed a surcharge for ‘excess’ utility consumption that 

should have been part of [the plaintiffs’] rent and deprived them of their 

statutory rights to pay only the prescribed maximum portion of their income as rent.”676 The Supreme Court determined that the Brooke Amendment to the U.S. Housing Act and implementing HUD regulations gave 
Enforcement of Federal Statutes

77

low-income tenants specific and definable rights to a reasonable utility allowance that were enforceable under § 1983.677

Wilder v. Virginia Hospital Ass’n678 involved the Boren Amendment to 

the Medicaid Act,679 which required a participating state to reimburse health 

care providers at “reasonable rates.”680 The Court concluded that health care 

providers were clearly intended beneficiaries of the Boren Amendment;681

that the amendment was cast in mandatory terms, imposing a “binding obligation” on participating states to adopt reasonable reimbursement rates 

for health care providers; and that this obligation was enforceable under 

§ 1983.682 The Court rejected the defendant’s argument that the obligation 

imposed by the Boren Amendment was “too vague and amorphous” to be 

capable of judicial enforcement.683 The Court relied upon the facts that “the 

statute and the Secretary’s regulations set out factors which a State must 

consider in adopting its rates,” including “the objective benchmark of an ‘efficiently and economically operated facility’ providing care in compliance 

with federal and state standards while at the same time ensuring ‘reasonable 

access’ to eligible participants.”684

The decisions in Golden State, Wright, and Wilder represent a broad 

approach to enforcement of federal statutes under § 1983. The Supreme 

Court’s more recent decisions, however, have generally been more restrictive. In Suter v. Artist M.,685 the Court held that a provision of the Adoption Assistance and Child Welfare Act of 1980 was not enforceable under 

§ 1983.686 The Act provides for federal reimbursement of certain expenses 

incurred by a state in administering foster care and adoption services, conditioned upon the state’s submission of a plan for approval by the Secretary 

of Health and Human Services.687 To be approved, the plan must satisfy certain requirements, including one that mandates that the state make 

“reasonable efforts” to keep children in their homes.688

The issue in Suter was whether “the Adoption Act, unambiguously confer[ed] upon the child beneficiaries of the Act a right to enforce the requirement that the State make ‘reasonable efforts’ to prevent a child from 

being removed from his home, and once removed to reunify the child with 

his family.”689 The Court held that it did not. It concluded that the only unambiguous requirement imposed by 42 U.S.C. § 671(a) was that the state 

submit a plan to be approved by the Secretary.690 The Court emphasized 

that in Wilder it had “relied in part on the fact that the statute and regulations set forth in some detail the factors to be considered in determining 
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the methods for calculating rates,”691 whereas the Child Welfare Act contained “[n]o further statutory guidance . . . as to how ‘reasonable efforts’ 

are to be measured.”692

In Blessing v. Freestone,

693 a unanimous Supreme Court rejected an attempt by custodial parents to enforce, through a § 1983 action, a general, 

undifferentiated right to “substantial compliance” by state officials with a 

federally funded child-support enforcement program that operates under Title IV-D of the Social Security Act.694 While the Court did not foreclose the possibility that certain specific provisions of Title IV-D might 

give rise to private, enforceable rights, it faulted the court of appeals for 

taking a “blanket approach,” and for painting “with too broad a brush” in 

determining whether Title IV-D creates enforceable rights.695 The Court 

remanded the case, and instructed the plaintiffs to articulate with particularity the rights they were seeking to enforce. Blessing forces plaintiffs to 

break down their claims into “manageable analytic bites” so that the court 

can “ascertain whether each separate claim satisfies the various criteria [the 

Supreme Court has] set forth for determining whether a federal statute 

creates rights.”696

In Gonzaga University v. Doe,

697 the Supreme Court held unenforceable 

under § 1983 a provision of the Family Educational Rights and Privacy 

Act (FERPA) directing that federal funds shall not be made available to 

an educational institution that “has a policy of permitting the release of 

educational records . . . of students without the written consent of their 

parents.”698 The Court acknowledged that its decisions governing enforcement of federal statutes under § 1983 contained inconsistent language and 

created “confusion” in the lower courts.699 It found that the FERPA provision was not enforceable under § 1983 because it failed to create “in clear 

and unambiguous terms” a federal right in the plaintiffs.700 Rather FERPA’s 

aggregate approach is directed at the U.S. Secretary of Education to deny 

federal funds to educational institutions that disclose students’ records.701

II. Specific Comprehensive Scheme Demonstrating Congressional 

Intent to Foreclose § 1983 Remedy

If the plaintiff demonstrates that a federal statute creates an enforceable 

right, there is “a rebuttable presumption that the right is enforceable under 

§ 1983.”702 The defendant has the burden of rebutting the presumption by 

showing that Congress intended to preclude enforcement under § 1983.703
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79

Congress may preclude enforcement under § 1983 either expressly or impliedly by creating a remedial scheme that is so comprehensive as to demonstrate a congressional intent to preclude enforcement under § 1983.704

In Middlesex County Sewerage Authority v. National Sea Clammers 

Ass’n,

705 an association claimed that the County Sewerage Authority discharged and dumped pollutants, violating the Federal Water Pollution 

Control Act706 and the Marine Protection, Research, and Sanctuaries Act 

of 1972.707 In addition, the County Sewerage Authority allegedly violated the terms of its permits.708 Although the issue before the Court was 

“whether [the Association] may raise either of these claims in a private 

suit for injunctive and monetary relief, where such a suit is not expressly 

authorized by either of these Acts,”709 the Court addressed, sua sponte, the 

enforceability of these Acts pursuant to § 1983. Noting that both statutes 

contained “unusually elaborate enforcement provisions,”710 the Court held 

that “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.”711

Similarly, in Smith v. Robinson,

712 the Supreme Court concluded that 

the “carefully tailored administrative and judicial mechanism”713 embodied in the Education of the Handicapped Act (EHA)714 reflected Congressional intent that the EHA be “the exclusive avenue through which a plaintiff may assert [an equal protection claim to a publicly financed special 

education].”715 The dissent disagreed:

The natural resolution of the conflict between the EHA, on the one 

hand, and . . . [section] 1983, on the other, is to require a plaintiff with 

a claim covered by the EHA to pursue relief through the administrative 

channels established by that Act before seeking redress in the courts 

under . . . [section] 1983.716

The dissent’s position became the law when, in response to Smith, Congress amended the EHA to provide explicitly that parallel constitutional 

claims were not preempted by the EHA and could be raised in conjunction 

with claims based on it.717

In City of Rancho Palos Verdes v. Abrams,

718 the Supreme Court held 

that specific provisions of the federal Telecommunications Act (TCA) were 

not enforceable under § 1983 because the TCA has its own, carefully circumscribed remedy. The remedy included a short, thirty-day limitations 

period; the requirement that a court hear and decide a TCA claim “on an 
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80

expedited basis”; and limited remedies, “perhaps” not including compensatory damages and not authorizing awards of attorneys’ fees and costs.719

The Court found that this highly specific remedy indicated a congressional 

intent to foreclose rather than supplement the § 1983 remedy for a TCA 

violation.

III. Current Supreme Court Approach

The foregoing analysis shows a clear trend in Supreme Court decisions of 

substantially tightening the standards for enforcing federal statutes under 

§ 1983.720 In the author’s view, Gonzaga University v. Doe721 is the most 

significant of these decisions. The Court in Gonzaga instructed the lower 

courts that to find that Congress intended to create an enforceable federal 

statutory right, Congress “must do so in clear and unambiguous terms—

no less and no more than what is required for Congress to create new rights 

under an implied private right of action.”722 The Court also strongly indicated that federal statutes enacted under the Spending Clause are unlikely 

to create private enforceable rights.723 The Court stated that since its decision in Pennhurst State School & Hospital v. Halderman,

724 only twice has it 

found Spending Clause legislation to give rise to enforceable rights under 

§ 1983.725 Nevertheless, although Spending Clause legislation has important federalism implications, “it does not follow that Spending Clause legislation can never create judicially enforceable individual rights.”726

IV. Enforcement of Federal Regulations Under § 1983

There is some uncertainty as to when a federal regulation is enforceable 

under § 1983.727 Most Circuit decisions on the issue hold that “a federal 

regulation alone may not create a right enforceable through section 1983 

not already found in the enforcing statute.”728 Under this view, “regulations 

give rise to a right of action [under § 1983] only insofar as they construe a 

personal right that a statute creates.”729 This position finds support in Alexander v. Sandoval,

730 where the Supreme Court stated that “language in a 

regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”731

Although the Supreme Court found a federal regulation enforceable under 

§ 1983 in Wright v. City of Roanoke Redevelopment & Housing Authority,

732

the regulation was promulgated pursuant to a federal statute that itself created rights enforceable under § 1983.
81

7. Color of State Law and State Action

An essential ingredient of a § 1983 claim is that the defendant acted under 

color of state law.733 Furthermore, the Fourteenth Amendment imposes 

limitations only on state action; it does not reach the conduct of private 

parties, no matter how discriminatory or harmful.734 Neither § 1983 nor 

the Fourteenth Amendment reaches the conduct of federal officials735 or 

of purely private persons. “[P]ersons victimized by the tortious conduct of 

private parties must ordinarily explore other avenues of redress.”736

The Supreme Court and the lower federal courts have generally treated 

color of state law and state action as meaning the same thing.737 A finding 

that the defendant was engaged in state action means that the defendant 

acted under color of state law.738 If the defendant was not engaged in state 

action, the Fourteenth Amendment is not implicated, and there is no reason for a court to determine whether the defendant acted under color of 

state law.

Normally, when the § 1983 defendant argues that there was no state 

action (or actions under color of state law), the federal court will proceed 

directly to the state action/color of state law issue because if the plaintiff 

has not established the requisite state action, it will be unnecessary to resolve the constitutional merits, e.g., the First or Fourth Amendment issues. From time to time, however, a federal court that has concluded that 

there has been no constitutional violation will assume the existence of state 

action, and proceed directly to the constitutional merits.739 Courts sometimes find other reasons for avoiding state action issues.740

I. State and Local Officials

The clearest case of state action (and action under color of state law) is 

that of a public official who carried out her official responsibilities in accordance with state law. For example, law enforcement officers who carry 

out their official responsibilities in accordance with state law are engaged 

in state action and action under color of state law. Polk County v. Dodson741 is the only Supreme Court decision that has found that a state or 

local official who carried out her official responsibilities was not engaged 

in state action. The Court held that a public defender’s representation of 

an indigent criminal defendant was not under color of state law.742 It rea-
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soned that although the public defender is employed and paid by the state, 

when representing a criminal defendant he acts not for the state, but as an 

adversary of the state; and not under color of state law, but pursuant to the 

attorney–client relationship with undivided loyalty to his client. However, 

as the Court in Polk County acknowledged, a public defender may be sued 

under § 1983 for carrying out her administrative functions.743

In West v. Atkins,

744 the Supreme Court held that a private physician 

who provides medical services to prisoners pursuant to a contract with the 

state acts under color of state law. Although the prison physician’s exercise of professional judgment may seem autonomous, it is on behalf of the 

state, and in furtherance of the state’s obligation to provide medical care to 

inmates. The decision in West is based primarily on the fact that the prison physician performs a governmental function and carries out the state’s 

constitutional obligation of providing medical care to prison inmates.745

State and local officials who abuse their official power act under color 

of state law. The governing principle is that “‘[m]isuse of power, possessed 

by virtue of state law and made possible only because the wrongdoer is 

clothed with the authority of state law, is action taken “under color of” 

state law.’”746

Courts often must decide whether an official, on the one hand, abused 

governmental power or, on the other hand, acted as a private individual.747

The issue often arises with respect to off-duty police officers. To determine 

whether an off-duty police officer acted under color of state law, courts 

consider such factors as whether an ordinance deemed the officer on duty 

for twenty-four hours; the officer identified herself as a police officer; the 

officer had or showed her service revolver or other police department 

weapon; the officer flashed her badge; the officer conducted a search or 

made an arrest; the officer intervened in an existing dispute pursuant to 

police department regulations (as opposed to instigating a dispute).748

II. State Action Tests

Courts often must decide whether a private party’s involvement with state 

or local government justifies the conclusion that the party was engaged in 

“state action” for the purpose of the Fourteenth Amendment. The state 

action requirement of the Fourteenth Amendment is designed to preserve 

a private sphere free of constitutional restraints, as well as to ensure “that 

constitutional standards are invoked when it can be said that the state is re-
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83

sponsible for the specific conduct of which the plaintiff complains.”749 The 

Supreme Court has advanced the following state action tests (discussed in 

the next four subsections):

• symbiotic relationship;

• public function;

• close or joint nexus;

• joint participation; and 

• pervasive entwinement.

Not all the Court’s state action holdings have been based on one of the 

above doctrines, however. At times, the Court has found state action based 

on essentially ad hoc evaluations of a variety of connections between the 

private party and the state, such as in cases involving a private party’s exercise of a peremptory challenge and a private physician’s provision of medical care to inmates pursuant to a contract with the state.750 The Court 

has acknowledged that its state action decisions “‘have not been a model 

of consistency.’”751 The nature of the government involvement with the 

private party can give rise to disputed questions of fact. Nevertheless, the 

courts decide a large percentage of state action issues as a matter of law.

A. Symbiotic Relationship

The Supreme Court’s decision in Burton v. Wilmington Parking Authority752 is often cited to support the principle that state action is present 

when the state and private party have a symbiotic relationship.753 Although Burton has not been overruled, the Court has read it narrowly, 

as supporting a finding of state action only when the state profited from 

the private wrong.754 Furthermore, the Court has denigrated Burton as 

one of its “early” state action decisions containing “vague” “joint participation” language.755

B. Public Function

Supreme Court decisions hold that there is state action when a private 

party carries out a function that has been historically and traditionally 

the “exclusive” prerogative of the state.756 This is a demanding standard 

that § 1983 plaintiffs find very difficult to satisfy. While many functions 

may be historically and traditionally governmental functions, few are 

“exclusively” governmental functions. The Supreme Court has found 

state action under the public function doctrine in cases involving po-
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84

litical primaries,757 and it has stated that eminent domain is an example 

of an exclusively governmental power.758 The Court’s decision in West v. 

Atkins,

759 that a private physician’s provision of medical care to prison 

inmates constitutes state action, was based in part on the fact that the 

physician carries out the governmental function of providing medical 

care to inmates.760

The Supreme Court has held that the following functions do not 

satisfy the public function doctrine because they are not “exclusively” 

governmental functions:

1. insurance companies’ suspension of workers’ compensation 

benefits pending utilization committee review;761

2. education of maladjusted children;762

3. nursing home care;763

4. coordination of amateur athletics;764

5. dispute resolution through forced sale of goods by a warehouse 

company to enforce a possessory lien;765

6. operation of a shopping mall;766 and

7. provision of utility services.767

C. Close Nexus Test

Under the “sufficiently close nexus” test, state action is present if the 

state ordered the private conduct, or “exercised coercive power or has 

provided such significant encouragement, either overt or covert, that 

the choice must in law be deemed to be that of the State.”768 The federal 

courts have held that the following are not sufficient to satisfy this test:

1. state authorization of private conduct;769

2. a private party’s use of a state furnished dispute resolution 

mechanism;770

3. a private party’s request for police assistance;771

4. a private party’s attempt to influence governmental action;772

5. state licensing and regulation, even if pervasive;773 and

6. state financial assistance, even if extensive.774

The Supreme Court has found no state action even when several of 

these indicia of government involvement coalesced in the same case. 

The Court has held that private parties (such as a utility company, a 
State Law and State Action

85

private school, and a nursing home) that were extensively regulated by 

the state, received substantial governmental assistance, carried out an 

important societal function, and acted pursuant to state authority, were 

not engaged in state action.775

D. Joint Action

A private party who jointly participates in the alleged constitutional 

wrongdoing with a state or local official is engaged in state action.776

Joint participation requires (1) some type of conspiracy, agreement, or 

concerted action between the state and private party; (2) a showing that 

the state and private party shared a common goal to violate plaintiff’s 

federally protected rights; and (3) conduct pursuant to the conspiracy, agreement, or concerted action that violated the plaintiff’s federally 

protected rights. In Dennis v. Sparks,

777 the Supreme Court held that 

private parties who corruptly conspire with a judge act under color of 

state law, even though the judge is protected by judicial immunity.778

In National Collegiate Athletic Ass’n v. Tarkanian,

779 the Supreme 

Court held that there was no joint action between the NCAA, a private 

entity, and the state university because they had diametrically opposite 

goals. The NCAA’s goal was that the university’s head basketball coach 

be suspended, while the university sought to retain its prominent head 

coach.

Although a private party’s mere use of a state statute, alone, does not 

constitute state action,780 when combined with the participation of state 

officials it can signify state action.781 In Lugar v. Edmondson Oil Co.,

782

the Supreme Court held that a creditor who used a state prejudgment 

attachment statute acted under color of state law because, in attaching 

the debtor’s property, with help from the court clerk and sheriff, the 

creditor used state power. The assistance from state officials made the 

creditor a joint participant in state action.783

E. Pervasive Entwinement

In Brentwood Academy v. Tennessee Secondary School Athletic Ass’n,

784 

the Supreme Court held that a statewide interscholastic athletic association was engaged in state action because the state was “pervasively entwined” with the association. The Court relied heavily on the fact that, 

because almost all of the state’s public schools were members of the 

association, there was a “largely overlapping identity” between the asso-
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86

ciation and the state’s public schools. The Court also relied on the facts 

that the association’s governing board was dominated by public school 

officials; most of the association’s revenue was derived from governmental funds; and the association carried out a function that otherwise 

would have to be carried out by the state board of education. Unfortunately, the Court did not define “pervasive entwinement,”785 thereby 

leaving it to the lower courts to determine on a case-by-case basis.786
87

8. Section 1983 Defendants

Section 1983 authorizes assertion of a claim for relief against a “person” 

who acted under color of state law. A suable § 1983 “person” encompasses 

state and local officials sued in their personal capacities, municipal entities, 

and municipal officials sued in an official capacity; and private parties engaged in state action, but not states and state entities.

I. State Defendants

In Will v. Michigan Department of State Police,

787 the Supreme Court held 

that a suable “person” under § 1983 does not include a state, a state agency, 

or a state official sued in her official capacity for damages. However, the 

Court ruled that a state official sued in an official capacity is a “person” for 

purposes of § 1983 when sued for prospective relief.788 In Hafer v. Melo,

789

the Court held that a state official sued for damages in her personal capacity is a person under § 1983, even though the claim for relief arose out of 

the official’s official responsibilities.

The Court’s interpretation of “suable § 1983 person” in Will was heavily 

influenced by the scope of sovereign immunity enjoyed by the states under 

the Eleventh Amendment.790 The Court found that § 1983 was not “intended to disregard the well established [Eleventh Amendment] immunity of 

a State from being sued without its consent.”791 Further, Will’s bifurcated 

definition of “person,” barring claims for monetary relief against states, 

state agencies and state officials in their official capacities, while allowing 

claims for prospective relief against state officials in their official capacities, 

is based upon, and consistent with, Eleventh Amendment decisional law.792 

The Supreme Court has indicated that the Will “no person” defense is not 

waivable.793

II. Interplay of “Person” and Eleventh Amendment Issues 

If a state defendant asserts that it is “not a person” for the purposes of 

§ 1983, along with an Eleventh Amendment defense, the court should 

first address the “person” defense. In Vermont Agency of Natural Resources 

v. United States,

794 a federal court qui tam action under the federal False 

Claims Act against the state of Vermont, Vermont argued that (1) it was not 

a “person” subject to suit under the act, and (2) the suit was barred by the 
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88

Eleventh Amendment. The Supreme Court ruled that when the defendant 

asserts both “person” and Eleventh Amendment defenses, the court should 

first determine the “person” issue. The Court said that although questions 

of jurisdiction are usually given “priority,” it has routinely first addressed 

whether the federal statute “itself permits the cause of action it creates to 

be asserted against States” before ruling on the Eleventh Amendment defense.795 The statutory question is “logically antecedent” to the Eleventh 

Amendment defense, and “there is no realistic possibility that addressing 

the statutory question will expand the Court’s power beyond the limits 

that the jurisdictional restriction has imposed.”796 The Court observed that 

the “person” and Eleventh Amendment issues are closely related to each 

other: “The ultimate issue in the statutory inquiry is whether States can be 

sued under this statute; and the ultimate issue in the Eleventh Amendment 

inquiry is whether unconsenting States can be sued under this statute.”797

Relying in part upon the holding in Will, that states are not “persons” within the meaning of § 1983, the Court in Vermont Agency held that states are 

not also not “persons” within the meaning of the False Claims Act. In light 

of this determination, the Court in Vermont Agency found no need to rule 

on the Eleventh Amendment defense.

The Seventh Circuit, in Power v. Summers,

798 held that the Supreme 

Court’s decision in Vermont Agency applies to § 1983 actions. “Since section 

1983 does not authorize suits against states (states not being ‘persons’ within the statute’s meaning), the district court should have dismissed the official-capacity claims before addressing the Eleventh Amendment defense, 

the sequence ordained by Vermont Agency . . . .”799

Because Will’s definition of suable § 1983 “person” was influenced by, 

and is consistent with, the scope of the Eleventh Amendment, a federal court that follows the sequence set forth in Vermont Agency and Power 

should find it unnecessary to reach the Eleventh Amendment issue.800 Nevertheless, numerous lower federal court rulings are based solely upon the 

Eleventh Amendment.801

In some cases, this phenomenon undoubtedly reflects the fact that the 

defendant raised an Eleventh Amendment defense and failed to assert the 

“no-person” defense. In any case, because the Eleventh Amendment defense 

is adjudicated so frequently in § 1983 actions, it is analyzed infra Chapter 14. 
Defendants

89

III. Municipal Defendants 

In Monell v. Department of Social Services,

802 the Supreme Court held 

that municipalities and municipal officials sued in an official capacity are 

suable § 1983 persons.803 In Will v. Michigan Department of State Police,

804

the Court carefully distinguished municipal liability from state liability. A 

claim against a municipal official in her official capacity is tantamount to a 

suit against the municipal entity.805 Thus when claims are asserted against 

both the municipal entity and a municipal official in her official capacity, 

federal courts consistently dismiss the official capacity claim as “redundant” to the municipal-entity claim.806

IV. State Versus Municipal Policy Maker 

Because Supreme Court decisional law defining suable § 1983 person distinguishes between state liability and municipal liability, federal courts 

sometimes have to decide whether an official is a state, as opposed to municipal, policy maker in a particular subject area, or on a particular issue. 

The resolution of this issue can determine whether a particular defendant 

is suable under § 1983 because, as discussed above, municipal entities are 

suable § 1983 persons while state entities are not. In addition, Eleventh 

Amendment sovereign immunity protects state entities from federal court 

liability but provides no protection for municipal entities.807

 In McMillian v. Monroe County,

808 the Supreme Court held that whether an official is a state or municipal policy maker is “dependent on an analysis of state law.”809 The Court recognized that a particular official (e.g., 

the county sheriff) may be considered a state official in one state and a 

municipal official in another state.810 Furthermore, an official may be considered a state official for the purpose of one governmental function and 

a municipal official for the purpose of another governmental function.811

For example, district attorneys are normally considered state officials when 

prosecuting crimes, but are considered municipal officials when carrying 

out their administrative duties, such as training staff.812

V. Departments, Offices, and Commissions

In § 1983 actions, municipal departments, offices, and commissioners are 

normally not considered suable entities.813 This is a matter of form rather 

than substance. It means simply that instead of naming, for example, the 

“police department” as a party defendant, the plaintiff must name as de-
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fendant the municipality (city, town, or village) of which the department 

is a part.
91

9. Causation

By its terms, § 1983 authorizes the imposition of liability only on a defendant who “subjects, or causes to be subjected, any citizen ... or other person 

... to the deprivation of any rights” guaranteed by federal law. The Supreme 

Court has read this language as imposing a proximate cause requirement 

on § 1983 claims.814 The great weight of judicial authority equates § 1983’s 

causation requirement with common-law proximate cause.815 This reading 

of § 1983 is consistent with the fundamental principle that § 1983 should 

be interpreted “against the background of tort liability that makes a [person] responsible for the natural consequences of his [or her] actions.”816

A § 1983 defendant “may be held liable for ‘those consequences attributable to reasonably foreseeable intervening forces, including acts of third 

parties.’”817 The requisite causal connection is satisfied if the defendant “set 

in motion a series of events” he knew or reasonably should have known 

would cause third parties to violate the plaintiff’s constitutional rights.818

On the other hand, a § 1983 defendant may not be held liable when an 

intervening force was not reasonably foreseeable or when the link between 

the defendant’s conduct and the plaintiff’s injuries is too remote, tenuous, 

or speculative.819 “In the context of criminal law enforcement, courts have 

differed as to the circumstances under which acts of subsequent participants in the legal system are superseding causes that avoid liability of an 

initial actor.”820 Causation in § 1983 actions is usually a question of fact for 

the jury.821

The proximate cause requirement applies to all § 1983 claims, whether 

against a subordinate or supervisory officer or governmental entity. In Los 

Angeles County v. Humphries,

822 the Supreme Court said the causation required under § 1983 for municipal liability claims does not “change with 

the form of relief sought.”823 The Court relied upon § 1983’s language that 

a person “shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress.”824

Very often multiple officials are involved in governmental decision-making, and the actions of more than one of them may be a proximate cause of 

the contested governmental decision. In Staub v. Proctor Hospital,

825 a case 

under the Uniformed Services Employment and Reemployment Rights 

Act, which prohibits employment discrimination against members of the 

military, the Supreme Court held that under common law proximate cause 
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principles, “if a supervisor performs an act motivated by the supervisor to 

cause an adverse employment action, and if that act is a proximate cause 

of the ultimate employment action [by the decision maker], then the employer is liable under” the Federal Act.826

The Court in Staub stated that when Congress creates a federal tort it 

adopts “the background of general tort law,” including “the traditional tortlaw concept of proximate cause.”827 With respect to the specific causation 

issue before the Court, the Court said:

[I]t is axiomatic under tort law that the exercise of judgment by the 

decisionmaker does not prevent the earlier agent’s action (and hence 

the earlier agent’s discriminatory animus) from being the proximate 

cause of the harm. Proximate cause requires only “some direct relation 

between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent or indirect.” [T]he ultimate decisionmaker’s exercise of judgment [does not] 

automatically render [ ] the link to the supervisor’s bias “remote” or 

“purely contingent.” The decisionmaker’s exercise of judgment is also

a proximate cause of the employment decision, but it is common for 

injuries to have multiple proximate causes. Nor can the ultimate decisionmaker’s judgment be deemed a superseding cause of the harm. A 

cause can be thought “superseding” only if it is a “cause of independent 

origin that was not foreseeable.”828

The Court ruled that the employer may be liable even though the ultimate 

decision maker exercised independent judgment, and even if the ultimate 

decision maker conducted an independent investigation (and rejection) of 

the employee’s allegations of a supervisor’s discriminatory animus.829

[I]f the employer’s investigation results in an adverse action for reasons 

unrelated to the supervisor’s original biased action . . . , then the employer will not be liable. But the supervisor’s biased report may remain 

a causal factor if the independent investigation takes it into account 

without determining that the adverse action was, apart from the supervisor’s recommendation, entirely justified. . . . [A]n employer’s mere 

conduct of an independent investigation . . . [does not] relieve[ ] the 

employer of “fault.” The employer is at fault because one of its agents 

committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment decision. . . .

Since a supervisor is an agent of the employer, when he causes an adverse employment action the employer causes it; and when discrimina-
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93

tion is a motivating factor in his doing so, it is a “motivating factor in 

the employer’s action ... .”830

In the author’s view, because § 1983 is interpreted against the background 

of common law tort principles including proximate cause, Staub very likely 

applies to § 1983 actions in which multiple officials participate in the contested governmental action.831

In an important decision, the First Circuit, in Drumgold v. Callahan,832

recently held that § 1983 causation principles must be consistent with the 

principles governing the plaintiff’s constitutional claim. The plaintiff in 

Drumgold asserted a § 1983 Brady v. Maryland 833 claim, based upon failure 

to disclose exculpatory evidence, against the defendant, a homicide detective. The jury returned a verdict for the wrongfully convicted plaintiff of 

$14 million, but the First Circuit reversed because of a causation instruction that clashed with the Brady materiality prong requirement of a reasonable probability that if the exculpatory material had been disclosed, the 

result would have been different. The First Circuit stressed that in § 1983 

actions, district courts must apply “only those tort causation principles 

that are compatible with the underlying constitutional right.”834 The district court’s instruction that there may be concurrent causes for the plaintiff’s injury was incompatible with the Brady materiality requirement of a 

reasonable probability that he would not have been convicted but for the 

defendant’s withholding of exculpatory evidence. It is not sufficient that 

the suppression of evidence was merely one cause of the wrongful conviction. The First Circuit held that the district court should have instructed 

the jury that the plaintiff was required to demonstrate, by a preponderance 

of the evidence, that he would not have been convicted but for the defendant’s suppression of the exculpatory evidence.

Causation frequently plays a significant role in § 1983 municipal liability claims based on allegedly inadequate training, supervision, or hiring 

practices.835 For these municipal liability claims, Supreme Court decisional 

law states that the municipal policy or practice must be the “moving force” 

for, “closely related” to, a “direct causal link” to, or “affirmatively linked” to 

the deprivation of the plaintiff’s federally protected rights.836 It is unclear 

whether these standards are alternative ways of articulating common-law 

proximate cause or are intended to impose a more stringent causation requirement.837
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10. Capacity of Claim: Individual

Versus Official Capacity

A claim against a state or municipal official in her official capacity is treated as a claim against the entity itself.838 In Kentucky v. Graham,

839 the Supreme Court stated that an official capacity claim is simply “‘another way 

of pleading an action against an entity of which an officer is an agent.’ 

As long as the government entity receives notice and an opportunity to 

respond, an official-capacity suit is, in all respects other than name, to be 

treated as a suit against the entity.”840 Therefore, when a § 1983 complaint 

asserts a claim against a municipal entity and municipal official in her official capacity, federal district courts routinely dismiss the official capacity 

claim as duplicative or redundant.841 By contrast, a personal-capacity (or 

individual-capacity) claim seeks monetary recovery payable out of the responsible official’s personal finances,842 and thus is not redundant or duplicative of a claim against a governmental entity.843

In Hafer v. Melo,

844 the Supreme Court outlined the distinctions between personal-capacity and official-capacity claims:

1. Because an official-capacity claim against an official is tantamount 

to a claim against a governmental entity, and because there is no respondeat superior liability under § 1983, in official capacity suits the 

plaintiff must show that enforcement of the entity’s policy or custom caused the violation of the plaintiff’s federally protected right.

2. In official capacity suits the defendant may assert only those immunities the entity possesses, such as the states’ Eleventh Amendment 

immunity and municipalities’ immunity from punitive damages.

3. Liability may be imposed against defendants in personal-capacity 

suits even if the violation of the plaintiff’s federally protected right 

was not attributable to the enforcement of a governmental policy 

or practice.“[T]o establish personal liability in a § 1983 action, it 

is enough to show that the official, acting under color of state law, 

caused the deprivation of a federal right.”845

4. Personal-capacity defendants may assert common-law immunity 

defenses—that is, either an absolute or qualified immunity.846
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95

The Seventh Circuit held that when a municipal official is sued in her 

personal capacity, the municipality is not an indispensable party, even if it 

may be responsible for a judgment against the official.847

The § 1983 complaint should clearly specify the capacity (or capacities) 

in which the defendant is sued. Unfortunately, many § 1983 complaints 

fail to do so. When the capacity of claim is ambiguous, most courts look to 

the “course of proceedings” to determine the issue.848 For example, when 

a municipal official is sued under § 1983, assertion of a claim for punitive 

damages is a strong indicator that the claim was asserted against the official 

in his personal capacity, because municipalities are immune from punitive 

damages under § 1983. By the same token, when the defendant/official asserts an absolute or qualified immunity as a defense, this strongly indicates 

that the claim was asserted against the official personally because these defenses are available only against personal-capacity claims.
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11. Municipal Liability

I. Fundamental Principles of § 1983 Municipal Liability

In its landmark decision, Monell v. Department of Social Services,

849 the Supreme Court held that municipal entities are subject to § 1983 liability, but 

not on the basis of respondeat superior.850 Therefore, a municipality may 

not be held liable under § 1983 solely because it hired an employee who 

became a constitutional wrongdoer. Monell established that a municipality 

is subject to liability under § 1983 only when the violation of the plaintiff’s federally protected right can be attributable to the enforcement of a 

municipal policy, practice, or decision of a final municipal policy maker.851

“[I]t is when execution of a government’s policy or custom, whether made 

by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity 

is responsible under § 1983.”852 A model general municipal liability jury 

instruction is in the Appendix (see infra Model Instruction 5).

A. Claims for Prospective Relief

In Los Angeles County v. Humphries,

853 the Supreme Court held that 

Monell’s “policy or custom” requirement is not limited to claims for 

damages, and pertains also to claims for prospective relief, such as an 

injunction or declaratory judgment. The Court relied on the language 

of § 1983, its legislative history, and the decision in Monell. It found that

Nothing in the text of § 1983 suggests that the causation requirement contained in the statute should change with the form of relief 

sought. In fact, the text suggests the opposite when it provides that 

a person who meets § 1983’s elements “shall be liable... in an action 

at law, suit in equity, or other proper proceeding for redress.”854

The Court pointed to Monell’s analysis of § 1983 legislative history, and 

specifically Congress’s rejection of the Sherman Amendment, which 

showed Congress’s intent that a municipality, may be held liable only for 

its own wrongs and not solely because it employed a tortfeasor. Humphries also relied on language in Monell that local governing bodies may 

be held liable “‘under § 1983 for monetary, declaratory, or injunctive

relief where . . . the action that is alleged to be unconstitutional implements or executes’” a municipal policy or custom.855 To hold the “policy 
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97

or practice” requirement inapplicable to claims for prospective relief 

“would undermine Monell’s logic. For whether an action or omission is 

a municipality’s ‘own’ [wrong] has to do with the nature or omission, 

not with the nature of the relief that is later sought in Court.”856

B. No Good-Faith Immunity, But Immunity from Punitive Damages

In Owen v. City of Independence,857 the Supreme Court held that a “municipality may not assert the good faith of its officers or agents as a 

defense to liability under § 1983.”858 In Leatherman v. Tarrant County 

Narcotics Intelligence & Coordination Unit,859 the Court held that “unlike various government officials, municipalities do not enjoy immunity from suit—either absolute or qualified under § 1983.”860 Although 

compensatory damages and equitable relief may be awarded against 

a municipality under § 1983,861 the Court, in City of Newport v. Fact 

Concerts, Inc.,862 held that municipalities are immune from punitive 

damages. It found that because an award of punitive damages against a 

municipality would be payable from taxpayer funds, the award would 

not further the deterrent and punishment goals of punitive damages. These goals are best accomplished by awards of punitive damages 

against officials in their personal capacity. Punitive damages, however, 

may be awarded under § 1983 against a state or municipal official in her 

individual capacity.863

C. Municipal Policies and Practices

Under Supreme Court decisional law, municipal liability may be based 

on (1) an express municipal policy, such as an ordinance, regulation, or 

policy statement; (2) a “widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and 

well settled as to constitute a custom or usage’ with the force of law”;864

or (3) the decision of a person with “final policymaking authority.”865

The following types of municipal policies and practices may give rise 

to § 1983 liability:

1. deliberately indifferent training;866

2. deliberately indifferent supervision or discipline;867

3. deliberately indifferent hiring;868 and

4. deliberately indifferent failure to adopt policies necessary to prevent constitutional violations.869
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D. Causation

There must be a sufficient “causal connection” between the enforcement of the municipal policy or practice and the violation of the plaintiff’s federally protected right. A municipality may be held liable under 

§ 1983 only when the enforcement of the municipal policy or practice 

was the “moving force” behind the violation of the plaintiff’s federally 

protected right.870 The Supreme Court has also referred to this “causal 

connection” as a “direct causal link,” “closely related,” and “affirmatively 

linked.”871 It is unclear whether these formulations are just alternative 

ways to describe proximate cause in the municipal liability context, or 

whether they impose a more rigorous causation requirement.872

E. Separation of Constitutional Violation and Municipal Liability Issues 

In Collins v. City of Harker Heights,

873 the Supreme Court stressed that 

the issue of whether there is a basis for imposing municipal liability for 

the violation of the plaintiff’s federally protected rights is separate and 

distinct from the issue of whether there was a violation of the plaintiff’s federal rights. A “proper analysis requires [the separation of] two 

different issues when a § 1983 claim is asserted against a municipality: 

(1) whether plaintiff’s harm was caused by a constitutional violation, 

and (2) if so, whether the city is responsible for that violation.”874

II. Officially Promulgated Policy

Usually the easiest cases concerning § 1983 municipal liability arise out of 

claims contesting the enforcement of an officially promulgated municipal 

policy. There was such a policy in the Monell case.875

The challenged policy statement, ordinance, regulation, or decision 

must have been adopted or promulgated by the local entity. A local government’s mere enforcement of state law, as opposed to express incorporation or adoption of state law into local regulations or codes, has been 

found insufficient to establish Monell liability.876 In Cooper v. Dillon,

877 the 

Eleventh Circuit held that the city could be held liable under § 1983 for its 

enforcement of an unconstitutional state statute because the city, by ordinance, had adopted the state law as its own. Furthermore, enforcement of 

the law was by the city police commissioner, an official with policy-making 

authority.878 In another case, the Eleventh Circuit held that if the municipal policy was facially constitutional, the plaintiff must show that the city 
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“was deliberately indifferent to the known or obvious consequences of its 

policies.”879

III. Municipal Policy Makers

A. Policy-Making Authority Versus Discretionary Authority

Supreme Court decisional law holds that municipal liability may be 

based on a single decision by a municipal official who has final policy-making authority.880 Whether an official has final policy-making 

authority is an issue of law to be determined by the court by reference 

to state and local law.881 The mere fact that a municipal official has discretionary authority is not a sufficient basis for imposing municipal liability.882 It is not always easy to determine whether a municipal official 

has final policy-making authority as opposed to discretionary authority 

to enforce policy.883

In Pembaur v. City of Cincinnati,

884 a majority of the Supreme Court 

held that a single decision by an official with policy-making authority in a given area could constitute official policy, and be attributed to 

the government itself under certain circumstances.885 The county prosecutor ordered local law enforcement officers to “go in and get” two 

witnesses who were believed to be inside the medical clinic of their 

employer, a doctor who had been indicted for fraud concerning government payments for medical care provided to welfare recipients. The 

officers had capiases for the arrest of the witnesses, but no search warrant for the premises of the clinic. Pursuant to the county prosecutor’s 

order, they broke down the door and searched the clinic.886 In holding 

that the county could be held liable for the county prosecutor’s order 

that resulted in the violation of the plaintiff’s constitutional rights, the 

Court described the “appropriate circumstances” in which a single decision by municipal policy makers may give rise to municipal liability. 

It noted cases in which it had held that a single decision by a “properly 

constituted legislative body . . . constitute[d] an act of official government policy.”887 Monell, for example, referred to officials “whose acts or 

edicts” could constitute official policy.888 Thus, where a government’s 

authorized decision maker adopts a particular course of action, the 

government may be responsible for that policy “whether that action is 

to be taken only once or to be taken repeatedly.”889
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The plurality opinion in Pembaur, written by Justice William J. Brennan, Jr., concluded that “[m]unicipal liability attaches only where the 

decision maker possesses final authority to establish municipal policy 

with respect to the action ordered.”890 Whether an official possesses policy-making authority with respect to particular matters is determined 

by reference to state and local law. Policy-making authority may be bestowed by legislative enactment, or it may be delegated by an official 

possessing policy-making authority under state law.891

In City of St. Louis v. Praprotnik,

892 the Supreme Court again attempted “to determin[e] when isolated decisions by municipal officials 

or employees may expose the municipality itself to liability under [section] 1983.”893 Justice Sandra Day O’Connor, writing for a plurality, reinforced the principle articulated in Pembaur that state law determines 

whether a municipal official has policy-making status.894 Furthermore, 

identifying a policy-making official is a question of law for the court 

to decide by reference to state law, not one of fact to be submitted to a 

jury.895 The plurality also underscored the importance of “finality” to 

the concept of policy making, and reiterated the distinction set out in 

Pembaur between authority to make final policy and authority to make 

discretionary decisions.896 “When an official’s discretionary decisions 

are constrained by policies not of that official’s making, those policies, 

rather than the subordinate’s departures from them, are the act of the 

municipality.”897 Finally, for a subordinate’s decision to be attributable 

to the government entity, “the authorized policymakers [must] approve 

[the] decision and the basis for it. . . . Simply going along with discretionary decisions made by one’s subordinates . . . is not a delegation to 

them of authority to make policy.”898

In Jett v. Dallas Independent School District,

899 the Supreme Court 

analyzed the respective functions of the judge and jury when municipal 

liability is sought to be premised upon the single decision of a municipal policy maker. The Court stated:

As with other questions of state law relevant to the application of 

federal law, the identification of those officials whose decisions represent the official policy of the local government unit is itself a legal 

question to be resolved by the trial judge before the case is submitted 

to the jury. Reviewing the relevant legal materials, including state 

and local positive law, as well as “‘custom or usage’ having the force 

of law” . . . , the trial judge must identify those officials of govern-
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mental bodies who speak with final policy-making authority for 

the local governmental actor concerning the action alleged to have 

caused the particular constitutional or statutory violation at issue. 

Once those officials who have the power to make official policy on 

a particular issue have been identified, it is for the jury to determine 

whether their decisions have caused the deprivation of [plaintiff’s 

federally protected] rights.900

Although mentioned merely in passing without elaboration, the 

Court’s reference to “custom or usage having the force of law” raises an 

interesting question. In Praprotnik, Justice O’Connor’s plurality opinion and Justice Brennan’s concurring opinion recognized that municipal liability may be based on a municipal practice that is at variance 

with a formally adopted announced policy.901 The existence of a custom 

or practice normally presents an issue of fact for the jury.902 In Mandel 

v. Doe,

903 the Eleventh Circuit stated that, to determine whether an official has final policy-making authority, “[t]he court should examine 

not only the relevant positive law, including ordinances, rules and regulations, but also the relevant customs and practices having the force 

of law.”904 There is thus a potential tension in Jett between the Court’s 

holding that the identification of final policy makers is a question of 

law for the court, and its statement that the court should review the 

“legal materials,” including a “‘custom or usage’ having the force of law.” 

Nevertheless, when the issue of whether an official is a final policy maker has been raised, the courts have usually given little attention to Jett’s 

reference to “custom and usage,” and have treated the final policy-making authority issue as a matter of state law for the court.

Because local ordinances, charters, regulations, and manuals may 

not be readily accessible, counsel should provide copies of the pertinent provisions to the court. In Wulf v. City of Wichita,

905 the issue was 

whether the city manager or the chief of police had policy-making authority over employment decisions. The Tenth Circuit observed that 

the record lacked “official copies of the City Charter or the relevant 

ordinances or procedure manuals for the City of Wichita.”906 Nevertheless, the Tenth Circuit was able to resolve the policy-making issue 

because the record contained testimony of the city manager about his 

duties, and the court was provided pertinent quotations from city ordinances. From these sources, the court found that only the city manager 

had final policy-making authority. The court was apparently willing to 
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accept these alternative sources only because the parties had briefed the 

appeal prior to the Supreme Court’s determination in Praprotnik that 

the federal court should look to state law to decide where policy-making authority resides.907

In this post-Praprotnik era, however, counsel should submit copies of the pertinent local law provisions to the court. As noted, federal 

courts are not likely to have easy access to these materials and should 

not have to expend considerable effort tracking them down.908 Further, 

because the contents of these legal documents are in issue, the original 

document rule909 would normally render it improper for a court to rely 

on alternative materials, such as the testimony and quotations considered in Wulf.

Judicial Notice. If the pertinent local legislative materials are made 

available to the federal court, the court may take judicial notice of their 

contents.910 In Melton v. City of Oklahoma City,

911 the Tenth Circuit took 

judicial notice of the fact that the city charter lodged final policy-making authority over the city’s personnel matters in the city manager. Although “[t]here seem[ed] to be two conflicting lines of cases in [the 

Tenth Circuit] on the question of judicial notice of city ordinances,” the 

court concluded that the “better rule” allows for the taking of judicial 

notice.912 As the Tenth Circuit recognized, the Federal Rules of Evidence 

authorize the taking of judicial notice of a fact not subject to reasonable 

dispute because it is “capable of accurate and ready determination by 

resort to sources whose accuracy cannot reasonably be determined.”913

B. State Versus Municipal Policy Maker

Federal courts frequently have to determine whether an official is a state 

or municipal policy maker. In McMillian v. Monroe County,

914 the Supreme Court held that, like the identification of municipal policy makers, this issue, too, is determined by reference to state law. The Court 

acknowledged that an official may be a state policy maker for one purpose and a municipal policy maker for another purpose.915 For example, courts commonly hold that district attorneys are state policy makers when prosecuting criminal cases, but are municipal policy makers 

for purposes of carrying out administrative and supervisory functions, 

such as training of assistant district attorneys.916
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In McMillian, a five-member majority of the Supreme Court held 

that a county sheriff in Alabama is not a final policy maker for the 

county in the area of law enforcement.917 It stated that

the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, “all or nothing” manner. Our cases 

on the liability of local governments under § 1983 instruct us to 

ask whether governmental officials are final policy makers for the 

local government in a particular area, or on a particular issue. ... 

Thus, we are not seeking to make a characterization of Alabama 

sheriffs that will hold true for every type of official action they engage in. We simply ask whether Sheriff Tate represents the State or 

the County when he acts in a law enforcement capacity.918

The Court emphasized that state law governs a court’s determination 

of whether an official has final policy-making authority for a local government entity or for the state. As the Court acknowledged,

[t]his is not to say that state law can answer the question for us by, 

for example, simply labeling as a state official an official who clearly 

makes county policy. But our understanding of the actual function 

of a governmental official, in a particular area, will necessarily be 

dependent on the definition of the official’s functions under relevant state law.919

Relying heavily on the Alabama constitution and the Alabama supreme 

court’s interpretation of the state constitution that sheriffs are state officers, the U.S. Supreme Court found that Alabama sheriffs, when executing their law enforcement duties, represent the state of Alabama, 

not their counties. Even the presence of the following factors was not 

enough to persuade the majority of the Court otherwise: (1) the sheriff’s salary is paid out of the county treasury; (2) the county provides 

the sheriff with equipment, including cruisers; (3) the sheriff’s jurisdiction is limited to the borders of his county; and (4) the sheriff is elected 

locally by the voters in his county.920 However, four dissenting justices, 

also relying on state law, came to the opposite conclusion, namely, that 

Alabama sheriffs are county policy makers.921

IV. Custom or Practice

In Monell v. Department of Social Services,

922 the Supreme Court recognized 

that § 1983 municipal liability may be based on a municipal “custom or 
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usage” having the force of law, even though it has “not received formal 

approval through the body’s official decision-making channels.”923 The Supreme Court has acknowledged that “[a]n act performed pursuant to a 

‘custom’ that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the 

relevant practice is so widespread as to have the force of law.”924 The critical 

issue is whether there was a particular custom or practice that was “so well 

settled and widespread that the policy-making officials of the municipality 

can be said to have either actual or constructive knowledge of it yet did 

nothing to end the practice.”925 Although there are no “bright-line rules for 

establishing what constitutes a widespread custom or practice, it is clear 

that a single incident—or even three incidents—do not suffice.”926

In Sorlucco v. New York City Police Department,

927 the Second Circuit 

considered the sufficiency of the evidence showing that the New York City 

Police Department (NYPD) engaged in a pattern of disciplining probationary police officers that discriminated against female officers. The plaintiff, 

Ms. Sorlucco, was a probationary police officer of the NYPD. In 1983, John 

Mielko, a tenured NYPD officer, brutally and sexually assaulted her for six 

hours in her Nassau County, New York apartment. Mielko had located Ms. 

Sorlucco’s service revolver in her apartment, threatened her with it, and 

fired it into her bed.

Upon learning of the alleged attack, the NYPD made a perfunctory 

investigation that culminated in departmental charges being filed against 

Sorlucco for failing to safeguard her service revolver, and for failing to report that it had been fired. Nassau County officials subjected her to vulgar 

and abusive treatment and, in fact, filed criminal charges against her for 

having falsely stated that she did not know the man who raped her. Ultimately, the NYPD fired Ms. Sorlucco “for initially alleging and maintaining 

(for four days before she actually identified Mielko) that her attacker was 

simply named ‘John,’ while Mielko, the accused rapist, subsequently retired 

from the NYPD with his regular police pension.”928

Sorlucco brought suit under § 1983 and Title VII alleging that her termination was the product of unlawful gender discrimination. Her theory 

of liability on the § 1983 municipal liability claim was “that the NYPD 

engaged in a pattern of disciplining probationary officers, who had been 

arrested while on probation, in a discriminatory . . . manner based upon 

. . . gender.”929 Although the jury rendered a verdict in favor of the plaintiff, 
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the district court granted the NYPD’s motion for judgment n.o.v.,930 setting aside the verdict on the § 1983 claim. The district court found (1) that 

there was no evidence linking the police commissioner to Sorlucco’s discriminatory termination; and (2) “that no reasonable jury could infer an 

unconstitutional pattern or practice of gender discrimination from the evidence of disparate disciplinary treatment between male and female probationary officers who had been arrested.”931

On the first point, the Second Circuit concluded that “[w]hile discrimination by the Commissioner might be sufficient, it was not necessary.”932

Although the court did not elaborate, what it apparently meant was that 

although a final decision of a municipal policy maker provides a potential basis for imposing municipal liability, so does a widespread custom or 

practice, even if of subordinates.933 On the second point, the court found, 

contrary to the district court’s evaluation of the evidence, that Ms. Sorlucco introduced “sufficient evidence from which the jury could reasonably 

infer an unconstitutional NYPD practice of sex discrimination.”934

The plaintiff’s evidence of a practice of sex discrimination can be broken down into three categories: (1) the way in which the NYPD investigated the plaintiff’s complaint, including, most significantly, the dramatically different ways it reacted to Mr. Mielko and Ms. Sorlucco;935 (2) expert 

testimony from an experienced former NYPD lieutenant with Internal 

Affairs that the “department’s investigation of Mielko was dilatory and 

negligent”;936 and (3) a statistical study prepared by the NYPD regarding 

actions taken against probationary officers who had been arrested between 

1980 and 1985. During this period, forty-seven probationary officers were 

arrested, twelve of whom resigned. Of the remaining thirty-five, thirty-one 

were male: twenty-two of the male officers were terminated and nine were 

reinstated. All four of the female officers who had been arrested were terminated. The court of appeals disagreed with the district court’s conclusion that the study was “statistically insignificant” because only four female 

officers were fired. The four women represented over 10% of the thirty-five 

probationary officers who were disciplined. While 100% of the female officers were terminated, only 63% of the male officers were fired. Although 

the statistical evidence by itself would probably have been an insufficient 

basis on which to find a discriminatory NYPD policy, it was sufficient when 

considered together with the evidence of the discriminatory treatment of 

Ms. Sorlucco.937 The way the investigation of her complaint was handled 
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made the cold statistics come alive, at least to the extent that the jury could 

rationally reach the result it did.938

Sorlucco is important because of its careful analysis of the legal, factual, 

and evidentiary aspects of the “custom and practice” issue. Relatively few 

decisions have analyzed these issues with such care. The case also demonstrates how the plaintiff’s counsel creatively pieced together a case of circumstantial evidence substantiating the constitutionally offensive municipal practice.

In Pineda v. City of Houston,

939 the Fifth Circuit held, on summary judgment, that the plaintiff submitted insufficient evidence to create a triable 

issue that the Houston Southwest Gang Task Force was “engaged in a pattern of unconstitutional searches pursuant to a custom of the City.”940 The 

plaintiffs produced reports of eleven warrantless entries into residences, 

but the court found that 

[e]leven incidents each ultimately offering equivocal evidence of 

compliance with the Fourth Amendment cannot support a pattern 

of illegality in one of the Nation’s largest cities and police forces. The 

extrapolation fails both because the inference of illegality is truly uncompelling—giving presumptive weight as it does to the absence of a 

warrant—and because the sample of alleged unconstitutional events is 

just too small.941

The Fifth Circuit also found that the evidence was insufficient to impute constructive knowledge to the city’s policy makers. The opinions of 

plaintiffs’ experts that there was a pattern of unconstitutional conduct 

were also insufficient to create a triable issue of fact. “Such opinions as to 

whether or not policymakers had constructive knowledge do not create 

a fact issue, as the ‘experts’ were unable to muster more than vague attributions of knowledge to unidentified individuals in ‘management’ or the 

‘chain of command.’”942

In Gillette v. Delmore,

943 the plaintiff, a firefighter, alleged that he had 

been suspended from his employment in retaliation for exercising his free 

speech rights. The Ninth Circuit held that the plaintiff failed to introduce 

sufficient proof of an alleged practice “that public safety employees wishing to criticize emergency operations should ‘be silent, cooperate, and 

complain later’ or risk disciplinary reprisals.”944 The plaintiff failed to introduce evidence of a pattern of such disciplinary reprisals, or that the city 

manager or city council helped formulate or was even aware of such a pol-
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icy. Further, the plaintiff presented no evidence as to how long the alleged 

practice had existed. Although the fire chief testified “that remaining silent 

during an emergency and complaining later was ‘a practice [among fire 

fighters] that we want to have followed,’” it was “too large a leap” to infer 

from the chief’s testimony that this reflected city policy.945

V. Inadequate Training

A. City of Canton v. Harris

In City of Canton v. Harris,

946 the Supreme Court, in an opinion by Justice White, held that deliberately indifferent training may give rise to 

§ 1983 municipal liability. The Court rejected the city’s argument that 

municipal liability can be imposed only where the challenged policy itself is unconstitutional, and found that “there are limited circumstances 

in which an allegation of a ‘failure to train’ can be the basis for liability 

under § 1983.”947 It held that § 1983 municipal liability may be based on 

inadequate training “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come 

in contact,” and that deliberate indifference was the moving force of 

the violation of the plaintiff’s federally protected right.948 The plaintiff 

must demonstrate specific training deficiencies and either (1) a pattern 

of constitutional violations of which policy-making officials can be 

charged with knowledge, or (2) that training is obviously necessary to 

avoid constitutional violations, e.g., training on the constitutional limits on a police officer’s use of deadly force.949

Canton held that negligent or even grossly negligent training does 

not give rise to a § 1983 municipal liability claim. The Court ruled that 

the plaintiff must also demonstrate a sufficiently close causal connection between the deliberately indifferent training and the deprivation 

of the plaintiff’s federally protected right.950

The Supreme Court has stressed that Canton’s “objective obviousness” deliberate indifference standard for municipal liability inadequate 

training claims is different from Farmer v. Brennan’s951 Eighth Amendment deliberate indifference standard, under which the official must be 

“subjectively” aware of the risk of “serious harm.”952 The Farmer standard of deliberate indifference is used to determine whether there has 

been a constitutional (Eighth Amendment) violation. By contrast, the 

“objective obviousness” deliberate indifference standard in Canton is 
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used “for the . . . purpose of identifying the threshold for holding a city 

responsible for the constitutional torts committed by its inadequately 

trained agents.”953

The Court in Canton ruled that a plaintiff must identify a particular deficiency in the training program and prove that the identified 

deficiency was the actual cause of the plaintiff’s constitutional injury.954

The plaintiff will not prevail merely by showing that the particular 

officer who committed the constitutional violation was inadequately 

trained, or that there was negligent administration of an otherwise adequate program, or that the conduct resulting in the injury could have 

been avoided by more or better training.955 The federal courts are not to 

become involved “in an endless exercise of second-guessing municipal 

employee-training programs.”956

The Ninth Circuit ruled that “[t]he deliberate-indifference inquiry 

should go to the jury if any rational factfinder could find [the] requisite mental state.”957 In other words, where there are disputed issues of 

material fact, the jury must decide whether the municipality acted with 

deliberate indifference.958 A model jury instruction for a municipal liability inadequate training or supervision claim is in the Appendix (see 

infra Model Instruction 6).

The Court acknowledged that the trier of fact may be confronted 

with difficult factual issues concerning alleged deliberately indifferent 

training deficiencies and causation. “Predicting how a hypothetically 

well-trained officer would have acted under the circumstances may not 

be an easy task for the fact-finder, particularly since matters of judgment may be involved and since officers who are well trained are not 

free from error and perhaps might react much like [an] untrained officer.”959 Nevertheless, the Court expressed optimism that judges and 

juries would be able to resolve these issues.

In her concurring opinion, Justice O’Connor recognized that, where 

there is “a clear constitutional duty implicated in recurrent situations 

that a particular employee is certain to face, . . . failure to inform city 

personnel of that duty will create an extremely high risk that constitutional violations will ensue.”960 O’Connor also recognized that municipal liability on a “failure to train” theory might be established

where it can be shown that policy makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise 
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of police discretion. . . . Such a [pattern] could put the municipality on notice that its officers confront the particular situation on 

a regular basis, and that they often react in a manner contrary to 

constitutional requirements.961

Thus, both the majority and O’Connor’s concurrence in Canton

identified two different ways in which the plaintiff may establish a deliberately indifferent failure-to-train.962 First, deliberate indifference may 

be established by demonstrating a failure to train officials in a specific 

area where there is an obvious need for training in order to avoid violations of citizens’ constitutional rights.963 Second, a municipality may 

be held responsible under § 1983 where a pattern of unconstitutional 

conduct is so pervasive as to imply actual or constructive knowledge of 

the conduct on the part of policy makers, whose deliberate indifference 

to the unconstitutional practice is evidenced by a failure to correct the 

situation once the need for training became obvious.964

B. Connick v. Thompson

In Connick v. Thompson965 the Court held, 5–4, that a municipality’s 

district attorney’s office cannot be held liable under § 1983 based 

upon failure to adequately train assistant district attorneys (ADAs) 

about their due process Brady966 obligations to turn over exculpatory 

material to the defense, unless the plaintiff demonstrates a pattern of 

Brady violations by the ADAs. Justice Thomas wrote the opinion for 

the Court.

In 1985, John Thompson was charged in New Orleans with a homicide. “Publicity following the murder charge led the victims of an 

unrelated armed robbery to identify Thompson as their attacker,” and 

Thompson was charged with attempted armed robbery.967 A crime 

scene technician took a swatch of fabric stained with the robber’s blood 

from one of the robbery victim’s pants, and sent it to the crime laboratory. Two days before the robbery trial, ADA Whittaker received the 

crime lab report, finding that the perpetrator of the robbery had Type B 

blood. The ADA never had Thompson’s blood tested, did not know his 

blood type, and never disclosed the lab report to Thompson’s counsel. 

(After Thompson discovered the lab report in 1999, former ADA Riehlmann revealed that ADA Deegan, who tried the robbery case with ADA 

Williams, “intentionally suppressed blood evidence” that exculpated 
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Thompson.)968 Thompson was convicted of the armed robbery and, 

because of that conviction, chose not to testify on his own behalf in his 

trial a few weeks later for murder. In 1987, Thompson was convicted 

of murder and sentenced to death, and spent eighteen years in prison, 

including fourteen years on death row. One month before Thompson’s 

scheduled execution, his investigators discovered the undisclosed crime 

lab report. A state appeals court reversed Thompson’s armed robbery 

and murder convictions. The DA’s office retried Thompson for murder, 

and the jury found him not guilty.

Thompson filed a § 1983 complaint in federal district court for damages against the Orleans Parish District Attorney (and others) alleging, 

inter alia, that District Attorney Connick failed to train his prosecutors 

adequately about their Brady obligations. The jury awarded Thompson 

$14 million, and the Fifth Circuit en banc affirmed by an equally divided vote. The Supreme Court reversed, holding that a district attorney’s 

office may not be held liable under § 1983 for failure to train based on 

a single Brady violation.969

Connick reaffirmed that in “limited circumstances” deliberately indifferent training may constitute a municipal policy justifying the imposition of § 1983 liability, and that deliberate indifference is a “stringent fault standard, requiring proof that a municipal actor disregarded 

a known or obvious consequence of his action.”970 The court ruled that 

“[a] municipality’s culpability for a deprivation of rights is at its most 

tenuous where a claim turns on a failure to train,” because this theory of 

municipal liability comes perilously close to vicarious liability.971 However, “[w]hen city policymakers are on actual or constructive notice that 

a particular omission in their training program causes city employees 

to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers chose to retain that program.”972

The Court in Connick ruled that

A pattern of similar constitutional violations by untrained employees is “ordinarily necessary” to demonstrate deliberate indifference 

for purposes of failure to train. . . . Without notice that a course 

of training is deficient in a particular respect, decisionmakers can 

hardly be said to have deliberately chosen a training program that 

will cause violations of constitutional rights.973
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The Court found that Thompson failed to establish a pattern of similar constitutional violations. Although Louisiana courts overturned 

four convictions on Brady grounds prior to Thompson’s armed robbery trial,

[t]hose four reversals could not have put [District Attorney] Connick on notice that the officer’s Brady training was inadequate with 

respect to the sort of Brady violation at issue here. None of those 

cases involved failure to disclose blood evidence, a crime lab report, 

or physical evidence of any kind. Because those incidents are not 

similar to the violation at issue here, they could not have put Connick on notice that specific training was necessary to avoid this constitutional violation.974

Unfortunately, the Court did not articulate how similar the constitutional violations must be to constitute a pattern.

Further, the fact that in Thompson’s robbery prosecution as many as 

four prosecutors “may have been responsible for the nondisclosure of 

the crime lab report and, according to [Thompson’s] allegations, withheld additional evidence in his armed robbery and murder trials,” did 

not take this case out of the “single incident” category.975 “[C]ontemporaneous or subsequent conduct cannot establish a pattern of [constitutional] violations that would provide ‘notice to the [municipality] and 

the opportunity to conform to constitutional dictates . . . .’”976

More fundamentally, the Court held, as a matter of law, that an inadequate training Brady claim against a district attorney’s office requires a 

showing of a pattern of constitutional violations. The Court in Connick

acknowledged that Canton left open the possibility that “in a narrow 

range of circumstances” a pattern of similar constitutional violations 

may not be necessary to show deliberate indifference and that a single 

incident may suffice,977 and that Canton provided the example of the 

“obvious” need to train law enforcement officers in the constitutional 

limitations upon the use of deadly force.

The Court in Connick found that in “stark contrast” to police officers, 

assistant district attorneys are trained in the law, normally law school 

graduates, and thus able to find, understand, and apply legal rules; may 

be required to satisfy continuing legal education requirements; train 

on the job, often under the supervision of more experienced attorneys; 

and are bound by the rules of ethics to comply with Brady.

978 In these 
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circumstances, in the absence of a pattern of constitutional violations, 

a district attorney is entitled to rely on the prosecutors’ professional 

training and ethical obligations.

The Court ruled that the fact that the prosecutors in fact may not 

have been trained about particular Brady issues is too nuanced to support an inference of deliberate indifference.979 Further, the absence of 

formal training does not establish deliberate indifference, and “showing 

merely that additional training would have been helpful in making difficult decisions does not establish municipal liability.”980

Justice Ginsburg, dissenting, disagreed strongly with the majority’s 

absolute requirement that the § 1983 plaintiff demonstrate a pattern of 

Brady violations by assistant district attorneys.981

C. Canton and Connick

Canton and Connick impose stringent standards for fault (“deliberate 

indifference”) and causation (“moving force”) in § 1983 municipal liability cases based upon inadequate training. As noted earlier, the Court 

in Canton expressly stated that federal courts should not lightly second-guess municipal training policies. Although numerous municipal 

liability claims based on inadequate training have been alleged, only a 

relatively small percentage of these claims have succeeded.982

VI. Inadequate Hiring

In limited circumstances, § 1983 municipal liability may be based on deficiencies in hiring. In Board of County Commissioners v. Brown,

983 the Supreme Court held that municipal liability can be premised upon a municipality’s deliberately indifferent hiring of a constitutional wrongdoer, but 

only if the plaintiff demonstrates that the hired officer “was highly likely to 

inflict the particular injury suffered by the plaintiff.”984 The Court acknowledged that the fault and causation standards for inadequate hiring claims 

are even more stringent than for inadequate training claims.985 To “prevent 

municipal liability for a hiring decision from collapsing into respondeat 

superior liability, a court must carefully test the link between the policy 

maker’s inadequate decision and the particular injury alleged.”986

In Brown, Sheriff B.J. Moore hired his son’s nephew, Stacy Burns, despite Burns extensive “rap sheet” that included numerous violations and 

arrests, but no felonies. Plaintiff Brown suffered a severe knee injury when 
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113

Reserve Deputy Burns forcibly extracted her from the car driven by her 

husband, who had avoided a police checkpoint. She sued both Burns and 

the county under § 1983.987

In a 5–4 opinion by Justice O’Connor, the Court held that the violation of Brown’s constitutionally protected rights was not attributable to 

the county’s allegedly deficient process in hiring Burns. The Court distinguished Brown’s claim, involving a single lawful hiring decision that ultimately resulted in a constitutional violation, from a claim that “a particular 

municipal action itself violates federal law, or directs an employee to do 

so.”988 It noted that its prior cases recognizing municipal liability based on 

a single act or decision by a government entity involved decisions of local legislative bodies or policy makers that ordered or otherwise directly 

brought about the constitutional deprivation.989 The majority also rejected 

the Brown’s effort to analogize inadequate screening to a failure to train.990

The Court ruled that Brown was required to produce evidence from 

which a jury could find that, had Sheriff Moore adequately screened Deputy Burns’ background, Moore “should have concluded that Burns’ use of 

excessive force would be a plainly obvious consequence of the hiring decision.”991 The Court found that Brown’s evidence of the sheriff’s scrutiny of 

Burns’ record did not enable the jury to make such a finding.992

Justice Souter, joined by Justices Breyer and Stevens, dissented, characterizing the majority opinion as an expression of “deep skepticism” that 

“converts a newly-demanding formulation of the standard of fault into a 

virtually categorical impossibility of showing it in a case like this.”993 Justice Breyer, joined by Justices Ginsburg and Stevens, criticized the “highly 

complex body of interpretive law” that has developed to maintain and perpetuate the distinction adopted in Monell between direct and vicarious liability, and called for a reexamination of “the legal soundness of that basic 

distinction itself.”994 Nevertheless, that distinction remains a fundamental 

aspect of § 1983 municipal liability law.

VII. Pleading Municipal Liability Claims

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination 

Unit,

995 the Supreme Court in 1993 held that federal courts may not impose 

a heightened pleading requirement for § 1983 municipal liability claims.996

The Leatherman decision meant that the Federal Rules of Civil Procedure 

notice pleading standard governed § 1983 municipal liability claims.997
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In Ashcroft v. Iqbal,998 however, the Supreme Court subsequently held 

that the plausibility pleading standard established in Bell Atlantic Corp. v. 

Twombly,999 applies to all federal court civil complaints, thus encompassing 

complaints filed under § 1983.1000 To comply with the Twombly-Iqbal standards, the complaint must allege facts and not mere legal conclusions, and 

these facts must constitute a “plausible,” not merely possible or speculative, 

claim for relief. “A claim has facial plausibility when the plaintiff pleads 

factual content that allows the court to draw the reasonable inference that 

the defendant is liable for the misconduct alleged.”1001 Further, “the tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions.”1002 Although the Court in 

Twombly stated that it was neither requiring “detailed factual allegations” 

nor a “heightened fact pleading of specifics, but only enough facts to state 

a claim to relief plausible on its face,”1003 Twombly and Iqbal appear to have 

imposed “plausibility” pleading standards that are more rigorous than 

Rule 8’s notice pleading standard.

The Court in Twombly and Iqbal did not purport to overrule Leatherman. However, in the author’s view, the greater likelihood is that the more 

recent, all encompassing Iqbal pleading precedent now governs the sufficiency of complaint allegations for § 1983 municipal liability claims.1004
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12. Liability of Supervisors

In many § 1983 actions, the plaintiff seeks to impose liability not only on 

the officer who directly engaged in the allegedly unconstitutional conduct 

(e.g., a police officer) but also on a supervisory official (e.g., the chief of 

police). The claim against the supervisor is frequently premised upon allegations that the supervisor knew or should have known there was danger 

that the subordinate would engage in the unconstitutional conduct, and 

that the supervisor had the authority to take steps to prevent the conduct, 

yet failed to act. Like municipal liability, claims against supervisors normally seek to impose liability upon one party (the supervisor) for a wrong 

directly inflicted by another party (the subordinate). In some cases, however, a supervisor may have directly inflicted the harm or participated in 

doing so.

The Supreme Court, in Ashcroft v. Iqbal,

1005 held that, like § 1983 municipal liability, the liability of a supervisor under § 1983 may not be based 

on respondeat superior, but only on the supervisor’s own wrongful acts or 

omissions.1006 And, like municipal liability, there must be a sufficient causal 

link or nexus between the supervisor’s wrongful conduct and the violation 

of the plaintiff’s federally protected right.1007

However, there are important differences between the liability of a supervisor and municipal liability under § 1983:

1. The liability of a supervisor is a form of personal liability; municipal liability is a form of entity liability.1008

2. Because the liability against a supervisor imposes personal liability, supervisors may assert a common-law absolute or qualified immunity defense.1009 Municipalities may not assert these immunity 

defenses, although municipalities sued under § 1983 are absolutely 

immune from punitive damages.1010

3. A municipal entity may be liable under § 1983 only when the violation of the plaintiff’s federal right is attributable to the enforcement 

of a municipal policy or practice. By contrast, supervisory liability 

does not depend on a municipal policy or practice.

Prior to Iqbal, the courts articulated standards for the § 1983 liability of 

supervisors. Although these standards varied somewhat from circuit to circuit, they generally required a showing (1) that the supervisory defendant 
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either acquiesced in or was deliberately indifferent to the subordinate’s unconstitutional conduct; and (2) that the supervisor’s action or inaction was 

“affirmatively linked” to the deprivation of the plaintiff’s federal rights.1011

However, there appeared to be some disagreement as to whether the requisite culpability for supervisory inaction can be established on the basis 

of a single incident of subordinates’ misconduct, or whether a pattern or 

practice of constitutional violation must be shown.1012

In any case, lower federal courts must reevaluate this circuit court authority in light of the Supreme Court’s decision in Iqbal. Iqbal was a Bivens

action, and the Court held that because there is no respondeat superior 

liability under § 1983 or in Bivens actions, a supervisor cannot be held 

liable for the constitutional wrongs of subordinate employees. The Court 

found that “supervisory liability” is a “misnomer,” and that a supervisor, 

like any other official, may be found liable under § 1983 only on the basis 

of her own unconstitutional conduct. The vexing question is determining 

the type of conduct by a supervisor that is a proximate cause of the violation of the plaintiff’s federal right.

The complaint in Iqbal alleged the following: “In the wake of the September 11, 2001, terrorist attacks,”1013 the plaintiff, Javaid Iqbal, a citizen of 

Pakistan and a Muslim, was arrested by FBI and INS agents on “charges of 

fraud in relation to identification documents and conspiracy to defraud 

the United States.”1014 Iqbal asserted constitutional claims for damages arising out of his treatment, after being designated a “person of high interest,” while detained pending trial at the Administrative Maximum Special 

Housing Unit at the Metropolitan Detention Center (MDC) in Brooklyn, 

New York. The complaint named numerous federal officers as defendants, 

ranging “from the correctional officers who had day-to-day contact with 

[Iqbal] during the term of his confinement, to the wardens of the MDC 

facility, all the way to” the defendants before the United States Supreme 

Court, John Ashcroft, the former Attorney General of the United States, 

and Robert Mueller, the director of the FBI.1015 Because Iqbal’s claims were 

asserted against federal officials, they came under the Bivens doctrine rather than § 1983. The Supreme Court, however, made clear that the same 

principles governing the liability of supervisory officials for constitutional 

violations apply in both § 1983 and Bivens actions.1016

Iqbal’s complaint alleged that while detained at MDC, jailers, without 

justification, “‘kicked him in the stomach, punched him in the face, and 
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dragged him across’ his cell, . . . subjected him to serial strip and body-cavity searches . . . and refused to let him and other Muslims pray because 

there would be ‘[n]o prayers for terrorists.’”1017 Iqbal alleged that Ashcroft 

and Mueller “‘knew of, condoned, and willfully and maliciously agreed to 

subject [Iqbal]’ to harsh conditions of confinement ‘as a matter of policy, 

solely on account of [his] religion, race, and/or national origin and for no 

legitimate penological interest,’ . . . that Ashcroft was the ‘principal architect’ of this invidious policy, and that Mueller was ‘instrumental’ in adopting and executing it.”1018

Applying the plausibility pleading standard from Bell Atlantic Corp. v. 

Twombly,

1019 the Supreme Court held that the complaint did not allege facts

constituting a plausible claim that the supervisory defendants adopted the 

alleged policy with the intent to discriminate on the basis of race, religion, 

and national origin. A more plausible explanation was “that the Nation’s 

top law enforcement officers, in the aftermath of a devastating terrorist 

attack, sought to keep suspected terrorists in the most secure conditions 

available until the suspects could be cleared of terrorist activity.”1020

The complaint, however, also alleged a second theory for imposing 

liability against the supervisory defendants. Iqbal argued “that, under a 

theory of ‘supervisory liability,’ [Ashcroft and Mueller] can be liable for 

‘knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.’”1021 In other 

words, Iqbal argued, “a supervisor’s mere knowledge of his subordinate’s 

discriminatory purpose amounts to the supervisor’s violating the Constitution.”1022 Interestingly, Ashcroft and Mueller conceded that they would 

be subject to supervisory liability if they “’had actual knowledge of the 

assertedly discriminatory nature of the classification of suspects as being 

of ‘high interest’ and they were deliberately indifferent to that discrimination.’”1023

Nevertheless, the Supreme Court emphatically rejected this “knowledge 

and deliberate indifference” argument as well. Although not clearly spelled 

out, Iqbal, in fact alleged two separate theories for imposing liability against 

the supervisory defendants, i.e., promulgation of the alleged discriminatory policy; and knowledge and deliberate indifference. Without briefing and 

argument on the supervisory liability issue,1024 and without referring to the 

extensive circuit court authority on the issue, the Court jettisoned the very 

concept of supervisory liability, and held that a supervisor may be found 
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liable under § 1983 or Bivens only when the supervisor herself engaged in 

unconstitutional conduct. In Iqbal, this required a showing that the supervisory defendants either adopted a policy, or directed action by a subordinate, with the alleged impermissible discriminatory intent. The Court 

stated that because there is no vicarious liability under § 1983 or Bivens,

“supervisory liability” is a misnomer. . . . [E]ach Government official, 

his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of a 

clearly established right to overcome qualified immunity, [discriminatory] purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same 

holds true for an official charged with violations arising from his or her 

superintendent responsibilities.1025

Therefore, Ashcroft and Mueller “cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic.”1026

The plaintiff must demonstrate that the supervisor was a constitutional 

wrongdoer. In the author’s view, the Court’s decision does not mean that a 

supervisor had to have direct contact with the plaintiff. It means, however, 

that the supervisor must have engaged in conduct with the requisite culpability that set the wheels in motion leading to the violation of the plaintiff’s 

constitutionally protected rights. So viewed, the issue requires a determination of the supervisor’s own culpability and of proximate causation. These 

issues are related because the more egregious the supervisor’s conduct, the 

more likely it will be found to be the proximate cause of the violation of 

the plaintiff’s rights.

Justice Souter, dissenting, articulated the severe implications of the 

Court’s complete rejection of supervisory liability:

Lest there be any mistake, . . . the majority is not narrowing the scope of 

supervisory liability; it is eliminating Bivens [and § 1983] supervisory 

liability entirely. The nature of supervisory liability theory is that the 

supervisor may be liable, under certain conditions, for the wrongdoing 

of his subordinates, and it is this very principle that the majority rejects. 

. . . [The majority] rests on the assumption that only two outcomes are 

possible here: respondeat superior liability, in which “[a]n employer is 

subject to liability for torts committed by employees while acting within the scope of their employment,” . . . or no supervisory liability at all. 

. . . In fact, there is quite a spectrum of possible tests for supervisory 

liability: it could be imposed where a supervisor has actual knowledge 
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of a subordinate’s constitutional violation and acquiesces, . . . or where 

supervisors “know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see”; or where 

the supervisor has no actual knowledge of the violation but was reckless in his supervision of the subordinate; or where the supervisor was 

grossly negligent.1027

To summarize, the Court in Iqbal, while recognizing that a supervisory 

official’s promulgation of policy may provide a basis for imposing liability, 

found that the complaint did not contain factual allegations establishing a 

plausible claim that the supervisory defendants adopted the claimed policy 

with a discriminatory intent. Further, the Court rejected the notion that 

liability may be imposed against a supervisor based on his knowledge of 

and deliberately indifferent failure to prevent constitutional violations.

Iqbal “has generated significant debate about the continuing vitality 

and scope of [§ 1983] supervisory liability.”1028
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13. Relationship Between Individual 

and Municipal Liability

I. Bifurcation

When § 1983 claims are brought against both a state or local official individually and a municipal entity, the district court has discretion to either 

bifurcate the claim or try them jointly.1029 Section 1983 plaintiffs generally 

favor a joint trial because the plaintiff may be allowed to introduce evidence of wrongdoing by other officers or by the municipal entity, albeit 

with limiting instructions. Section 1983 defendants normally seek bifurcation in order to thwart this strategy.

II. Los Angeles v. Heller

In Los Angeles v. Heller,

1030 the plaintiff asserted § 1983 false arrest and excessive force claims; the complaint alleged personal capacity and municipal liability claims. The Supreme Court held that a determination in the 

first phase that the individual officer did not violate the plaintiff’s federally 

protected rights required dismissal of the municipal liability claim. The 

Court reasoned that, because the municipal liability claim was premised 

on the city’s allegedly having adopted a policy of condoning excessive force 

in making arrests, the city could not be liable under § 1983 unless some 

official violated the plaintiff’s federally protected rights under the alleged 

“policy.”1031

A. Circuit Court Applications of Heller

Although the early post-Heller cases read Heller broadly as meaning that 

if the personal-capacity claim is dismissed, the municipal liability claim 

must be dismissed,1032 several of the more recent decisions recognized 

situations in which the named subordinate defendant did not violate 

the plaintiff’s federally protected rights, but the plaintiff’s rights were 

violated by the joint action of a group of officers, or by a nondefendant, 

or by policy-making officials.1033 Under these circumstances, dismissal 

of the claim against the individual officer–defendant should not result 

in automatic dismissal of the municipal liability claim.
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121

B. Officer Protected by Qualified Immunity Does Not Necessarily 

Require Dismissal of Municipal Liability Claim

The fact that the plaintiff’s claim against the individual officer–defendant is defeated by qualified immunity should not automatically result 

in dismissal against the municipality, because an officer who is protected by qualified immunity may have violated the plaintiff’s federally protected rights. The qualified immunity determination may mean 

only that the defendant did not violate the plaintiff’s clearly established

federally protected rights.1034 An official sued in his personal capacity 

may assert qualified immunity; a municipal entity may not.

C. Plaintiff Need Not Sue Both Officer and Municipality

There is no requirement in § 1983 law that the plaintiff sue both the 

officer in a personal capacity and the municipality. The plaintiff may 

choose to sue only the officer, or only the municipality.1035 When the 

plaintiff does not sue both the officer and municipality, Heller issues 

do not arise. 

III. If Plaintiff Prevails on Personal-Capacity Claim

If the plaintiff is awarded relief on her personal-capacity claim, should the 

district court nevertheless allow her to proceed on her municipal liability 

claim? The majority view is that once the plaintiff obtains complete relief 

on her personal-capacity claim, it is unnecessary for the court to proceed 

with the municipal liability claim.1036 In other words, because the plaintiff 

achieved the objective of her suit, there is no reason to allow it to proceed 

further. The Second Circuit, however, held that when a plaintiff recovers 

only nominal damages against the officer on the personal-capacity claim, 

the plaintiff cannot relitigate the issue of compensatory damages for the 

constitutional violation against the city, but is entitled to pursue his claim 

for nominal damages for the constitutional violation against the city.1037

The Second Circuit relied, in part, upon the societal importance of holding 

“a municipality accountable where official policy or custom has resulted in 

the deprivation of constitutional rights.”1038

IV. “Cost Allocation Scheme”

The interplay of the rules governing qualified immunity and municipal 

liability results in a cost-allocation scheme among the municipality, the in-
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dividual officer, and the plaintiff whose federally protected rights were violated. The Supreme Court, in Owen v. City of Independence,

1039 explained 

how the “costs” are allocated:

1. The municipality will be held liable for compensatory damages 

when the violation of the plaintiff’s federally protected right is attributable to enforcement of a municipal policy or practice.

2. The individual officer will be held liable for compensatory damages 

when she violated the plaintiff’s clearly established, federally protected right and, therefore, she is not shielded by qualified immunity.

3. The plaintiff whose federally protected right was violated will not 

be entitled to monetary recovery, and will “absorb the loss” when 

the violation of her right is not attributable to the enforcement of 

a municipal policy or practice, and the individual officer did not 

violate plaintiff’s clearly established federal rights.1040
123

14. State Liability: The Eleventh Amendment

I. Relationship Between Suable § 1983 “Person” and Eleventh 

Amendment Immunity

When a § 1983 claim is asserted against a state, state agency, or state official, the defendant may assert two separate yet closely related defenses, 

namely, that the defendant is not a suable “person” under § 1983; and that 

the defendant is shielded from liability by Eleventh Amendment sovereign 

immunity. In Will v. Michigan Department of State Police,1041 the Supreme 

Court ruled that a state, a state agency, and a state official sued in her official capacity for monetary relief are not suable § 1983 “persons.” However, 

the Court in Will ruled that a state official sued in an official capacity is 

a suable person when sued for prospective relief.1042 Further, in Hafer v. 

Melo,1043 the Court held that a state official sued for damages in her personal capacity is a “suable” § 1983 person.

When the defendant asserts both “no person” and Eleventh Amendment defenses, a federal court should first determine the “no person” defense.1044 Because the Supreme Court’s definition of suable person in Will

was informed by Eleventh Amendment immunity, and because the Court’s 

bifurcated definition of suable person that distinguishes between retrospective and prospective relief is symmetrical with Eleventh Amendment 

immunity, lower federal courts must have a good working knowledge of 

Eleventh Amendment law. This is so even though a federal court’s resolution of the “person” issue will always, or virtually always, render it unnecessary to decide the Eleventh Amendment issue. Even where a state has 

waived its Eleventh Amendment immunity, it would still not be a suable 

§ 1983 “person.”1045 As explained in Part VI, substantial numbers of lower federal court § 1983 decisions continue to be based on the Eleventh 

Amendment.

II. Eleventh Amendment Protects State Even When Sued by Citizen of 

Defendant State 

Under the Eleventh Amendment, the states have immunity from suit in 

federal courts.1046 Although the language in the Eleventh Amendment refers to a suit brought by a citizen of one state against another state, the 
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Supreme Court has long interpreted it as granting the states sovereign immunity protection even when a state is sued in federal court by one of its 

own citizens.1047 The Court’s rationale is that there is a broader state sovereign immunity underlying the Eleventh Amendment, and that this broader 

immunity should be read into the Eleventh Amendment.

III. State Liability in § 1983 Actions

A. Section 1983 Does Not Abrogate Eleventh Amendment

The Supreme Court holds that the Eleventh Amendment applies to 

§ 1983 claims against states and state entities because, in enacting the 

original version of § 1983, Congress did not intend to abrogate the 

states’ Eleventh Amendment immunity.1048 Therefore, a federal court 

award of § 1983 monetary relief against a state, state agency, or state 

official sued in an official capacity is barred by the Eleventh Amendment.1049

B. Prospective Relief: Ex parte Young

Under the doctrine of Ex parte Young,

1050 prospective relief against a 

state official in his official capacity to prevent future federal constitutional or federal statutory violations is not barred by the Eleventh 

Amendment. The Court in Young reasoned that a state official who violated federal law is “stripped of his official or representative character” 

and, therefore, did not act for the state, but as an individual. Because 

the Eleventh Amendment protects states and state entities, and not individuals, the claim for prospective relief is not barred by the Eleventh 

Amendment. The rationale behind the Young doctrine is fictitious because its prospective relief operates in substance against the state, and 

may have a substantial impact on the state treasury. The Young doctrine “permits federal courts to enjoin state officials to conform their 

conduct to requirements of federal law, notwithstanding a direct and 

substantial impact on the state treasury.”1051

To determine whether a plaintiff has alleged a proper Young claim, 

the federal court “need only conduct a ‘straightforward inquiry into 

whether [the] complaint alleges an ongoing violation of federal law 

and seeks relief properly characterized as prospective.’”1052 In addition, 

the plaintiff must name as defendant the state official responsible for 

enforcing the contested statute in her official capacity;1053 a claim for 
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prospective relief against the state itself, or a state agency, will be barred 

by the Eleventh Amendment.1054 Declaratory relief is within the Young

doctrine’s reach, but only when there are ongoing or threatened violations of federal law.1055

When a federal court grants Young prospective relief, it has the power to enforce that relief, including by ordering monetary sanctions payable out of the state treasury.1056 Similarly, a federal court’s enforcement 

against a state of a consent decree that is based on federal law does not 

violate the Eleventh Amendment.1057 The rationale is that “[i]n exercising their prospective powers under Ex Parte Young and Edelman v. Jordan, federal courts are not reduced to [granting prospective relief] and 

hoping for compliance. Once issued, an injunction may be enforced. 

Many of the court’s most effective enforcement weapons involve financial penalties.”1058

In Pennhurst State School & Hospital v. Halderman,

1059 the Supreme 

Court held that the Young doctrine does not apply to state law claims 

that are pendent (“supplemental”) to the § 1983 claim. Therefore, a 

supplemental state law claim that seeks to compel the state to comply 

with state law is barred by the Eleventh Amendment. The Court reasoned that the Young fiction was born of the necessity of federal supremacy to enable the federal courts to compel compliance by the states 

with federal law, a factor not present when the plaintiff claims a violation of state law.1060 The Court in Pennhurst viewed federal court relief 

requiring a state to comply with its own state law as a great intrusion 

on state sovereignty.1061

IV. Personal-Capacity Claims

The Eleventh Amendment does not grant immunity when a § 1983 claim 

for damages is asserted against a state official in her personal capacity.1062

The monetary relief awarded on such a claim would not be payable out of 

the state treasury, but would come from the state official’s personal funds, 

which are not protected by the Eleventh Amendment.1063 The fact that the 

state agreed to indemnify the state official for a personal capacity monetary 

judgment does not create Eleventh Amendment immunity because the decision to indemnify is a voluntary policy choice of state government; it is 

not compelled by mandate of the federal court.1064
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V. Municipal Liability; the Hybrid Entity Problem

The Eleventh Amendment does not protect municipalities.1065 Thus, in 

contrast to a § 1983 federal court damage award against a state entity, a 

§ 1983 damage award against a municipality is not barred by the Eleventh 

Amendment. Many governing bodies have attributes of both state and local 

entities. For example, an entity may receive both state and local funding, or 

an entity that carries out a local function may be subject to state oversight. 

Federal courts frequently have to determine whether such a “hybrid entity” 

should be treated as an arm of the state or of local government.1066 In making this determination, the most important factor is whether the federal 

court judgment can be satisfied from state funds as opposed to municipal 

funds,1067 because the Eleventh Amendment is designed to protect the state

treasury. A “hybrid entity” asserting Eleventh Amendment immunity bears 

the burden of demonstrating that it is an arm of the state protected by 

Eleventh Amendment immunity.1068

In Mt. Healthy City School District Board of Education v. Doyle,

1069 the 

Supreme Court found that because the defendant, the school board, was 

more like a municipality than an arm of the state, it was not entitled to assert Eleventh Amendment immunity. Although the school board received 

significant state funding and was subject to some oversight from the state 

board of education, it also had the power to raise its own funds by issuing 

bonds and levying taxes, and state law did not consider the school board 

an arm of the state. The Court found that, “[o]n balance,” the school board 

was “more like a county or city than it [was] like an arm of the state.”1070

In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,

1071 the 

Court followed its Mt. Healthy approach and adopted the presumption 

that an agency created pursuant to an interstate compact is not entitled to 

Eleventh Amendment immunity “[u]nless there is good reason to believe 

that the States structured the new agency to enable it to enjoy the special 

constitutional protection of the States themselves, and that Congress concurred in that purpose . . . .”1072

VI. Eleventh Amendment Waivers

A state may voluntarily waive its Eleventh Amendment immunity, but 

these waivers are relatively rare. The Supreme Court invokes a strong presumption against Eleventh Amendment waiver, and holds that waiver will 

be found only if the state agrees to subject itself to liability in federal court 
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by “express language or . . . overwhelming [textual] implications.”1073 The 

Court found a deliberate waiver of Eleventh Amendment immunity, however, where the state, after waiving its immunity from state law claims in 

state court, removed the state suit to federal court.1074 The Court reasoned 

that it “would seem anomalous or inconsistent” for a state to invoke the 

judicial power of the federal court while, at the same time, asserting that 

the Eleventh Amendment deprived the federal court of judicial power.1075

VII. Eleventh Amendment Appeals

In Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc.,

1076 the 

Supreme Court held that a district court’s denial of Eleventh Amendment 

immunity is immediately appealable to the court of appeals. The Court relied on the fact that the Eleventh Amendment grants states not only immunity from liability, but also “immunity from suit” and from the burdens of 

litigation.1077 It found that an immediate appeal was necessary to vindicate 

this immunity as well as the states’ “dignitary interests.”1078
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15. Personal-Capacity Claims:

Absolute Immunities

I. Absolute Versus Qualified Immunity: The Functional Approach

Despite § 1983’s “broad terms,” the Supreme Court “has long recognized 

that” officials sued for monetary relief in their personal capacities may be 

entitled to assert a common-law defense of absolute or qualified immunity.1079 In general, the Court, applying a “functional approach,” has held 

that judges, prosecutors, witnesses, and legislators may assert absolute immunity, while executive and administrative officials may assert qualified 

immunity.1080 Most officials are entitled only to qualified immunity.

The Court “has looked to the common law [of 1871] for guidance in 

determining the scope of the immunities available in a § 1983 action” and 

does “not simply make [its] own judgment about the need for immunity” by making “‘a freewheeling policy choice.’”1081 On the other hand, it 

has not applied the common-law immunities “mechanically,”1082 and has 

considered developments in the law since 1871 as well as policy concerns 

underlying § 1983.1083

Under the “functional approach” adopted by the Supreme Court, an 

official’s entitlement to absolute or qualified immunity depends on “‘the 

nature of the function performed, not the identity of the actor who performed it.’”1084 Thus, an official may be entitled to absolute immunity for 

carrying out one function but only to qualified immunity for another. 

For example, a judge may assert absolute judicial immunity for carrying 

out her judicial functions, but only qualified immunity for carrying out 

administrative and executive functions, such as hiring and firing court 

employees.1085 And, as discussed below, prosecutors may claim absolute 

prosecutorial immunity for their advocacy functions, but only qualified 

immunity for their investigatory and administrative functions.

Determining the nature of the function an official carried out may 

present difficulties. For example, the line between a prosecutor’s advocacy 

and investigative functions is not always clear. A court may be able to avoid 

having to decide the type of function the defendant/official carried out if 

the official is protected by qualified immunity anyway because she did not 

violate clearly established federal law. In Ashcroft v. al-Kidd,1086 the Supreme 
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Court held that former Attorney General Ashcroft was protected from liability by qualified immunity because his policy concerning enforcement 

of the federal material witness statute did not violate clearly established 

Fourth Amendment law. This determination made it unnecessary for the 

Court to “address the more difficult question whether [Ashcroft] enjoys 

absolute [prosecutorial immunity].”1087

II. Judicial Immunity

A. Judicial Immunity Protects Judicial Acts Not in Complete Absence of 

All Jurisdiction

The law has long recognized that judges carrying out their judicial 

functions enjoy broad absolute judicial immunity.1088 This immunity 

is designed to allow judges to carry out their judicial functions without 

the fear that disappointed parties may seek to establish liability against 

them. A judge does not lose absolute immunity simply because he acted in excess of jurisdiction; absolute immunity is lost only when the 

judge either did not perform a judicial act or when the judge “acted 

in the clear absence of all jurisdiction.”1089 A judge who acts in excess 

of jurisdiction, or without personal jurisdiction, or who makes grave 

procedural errors, or who acts “maliciously or corruptly” or “in excess 

of authority,” does not necessarily act in the clear absence of all jurisdiction.1090 To determine whether the judge performed a “judicial act,” 

courts consider whether the judge engaged in action normally performed by a judge, and whether the parties dealt with the judge in her 

judicial capacity. (Examples of judicial and nonjudicial acts are cited in 

the endnote.)1091

In Pierson v. Ray,

1092 the Court held that the judicial functions of 

determining guilt and sentencing a criminal defendant are protected by 

absolute immunity.1093 Judicial immunity was deemed proper for two 

reasons: the common law of 1871 (when the original version of § 1983 

was enacted) supported it; and the policy behind § 1983 was not to 

deter judges from performing their jobs. The Court stated that judicial 

immunity

“is not for the protection or benefit of a malicious or corrupt judge, 

but for the benefit of the public, whose interest it is that the judges 

should be at liberty to exercise their functions with independence 
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and without fear of consequences.” It is a judge’s duty to decide all 

cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the 

litigants. His errors may be corrected on appeal, but he should not 

have to fear that unsatisfied litigants may hound him with litigation 

charging malice or corruption. Imposing such a burden on judges 

would contribute not to principled and fearless decision-making 

but to intimidation.1094

In short, absolute immunity is necessary to protect the judicial system. 

The essential philosophy is that the remedy for judicial errors is an appeal, not a § 1983 lawsuit for damages.

The Supreme Court has had to define the boundaries of “judicial” 

actions. In Stump v. Sparkman,

1095 the Court held that Judge Harold 

D. Stump had performed a judicial act when he authorized a mentally 

retarded girl to undergo a tubal ligation at the request of her mother.1096

The Court explained that absolute judicial immunity applies to actions 

taken by judges “in error, . . . maliciously, or . . . in excess of [their] authority,” but not in the “clear absence of all jurisdiction.”1097

Furthermore, an action can be judicial even if it lacks the formality often associated with court proceedings; the question is whether 

the action is one normally performed by a judge. In Stump, the Court 

recognized absolute immunity for the judge’s act of ordering a tubal 

ligation, even though there had been no docket number, no filing with 

the clerk’s office, and no notice to the minor. Similarly, in Mireles v. 

Waco,

1098 the Court determined that a judge performed a judicial act in 

ordering a bailiff to use excessive force to compel an attorney to attend 

court proceedings because directing officers to bring counsel to court 

for a pending case is a function normally performed by a judge.1099 Even 

though judges do not have the authority to order police officers to commit battery, they have broad authority to maintain court proceedings.

A judge is protected only by qualified immunity when carrying out 

administrative functions. In Forrester v. White,

1100 the Supreme Court, 

applying the functional approach, held that when a judge fired a probation officer, he performed an administrative act, and was thus protected 

only by qualified immunity.1101 The Court rejected the argument that 

judges should have absolute immunity for employment decisions because an incompetent employee can impair the judge’s ability to make 

sound judicial decisions. It reasoned that employment decisions made 
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by judges “cannot meaningfully be distinguished from” employment 

decisions made by district attorneys and other executive officials, and 

“no one claims they give rise to absolute immunity from liability in 

damages under § 1983.”1102

B. Injunctive Relief: Federal Court Improvements Act

Judicial immunity is primarily at issue when the plaintiff seeks monetary relief against a state court judge. In Pulliam v. Allen,

1103 the Supreme Court held that judicial immunity did not encompass claims 

for prospective relief and attorneys’ fees against a judge in her judicial 

capacity. The Federal Court Improvements Act of 1996 (FCIA) amended § 1983 and its attorneys’ fees provision1104 to provide that injunctive 

relief and § 1988 fees generally may not be granted against a judicial 

officer “for an act or omission taken in such officer’s judicial capacity 

. . . unless a declaratory decree was violated or declaratory relief was unavailable.”1105 The FCIA amended § 1988(b) to provide that attorneys’ 

fees may not be awarded against a judicial officer based on conduct in 

a judicial capacity, unless the officer’s conduct was in clear excess of the 

officer’s jurisdiction.

The District of Columbia Circuit Court of Appeals found that these 

FCIA provisions are not limited to judges, and extend “to other officers of government whose duties are related to the judicial process.”1106

The court held specifically that the FCIA protected public defender 

program administrators’ selection of attorneys for court-appointed attorney panels in juvenile delinquency cases because the administrators 

acted in a judicial capacity.

C. Hearing Officers, Court Reporters, and Court Clerks

In some circumstances, administrative hearing officers may claim absolute quasi-judicial immunity. Whether absolute immunity is appropriate depends primarily on whether the hearing officer is politically 

independent, and if the hearing affords sufficient procedural safeguards 

to ensure that the administrative process fairly resembles the judicial 

process. 

In Butz v. Economou,

1107 the Supreme Court held that federal hearing officers were entitled to assert absolute quasi-judicial immunity 

because, inter alia, the officers carried out a function comparable to 

that of trial judges. The Court also held that the hearings afforded ad-
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equate procedural safeguards, and, “[m]ore importantly, the process 

of agency adjudication is currently structured so as to assure that the 

hearing examiner exercises his independent judgment on the evidence 

before him, free from pressures by the parties or other officials within 

the agency.”1108

By contrast, in Cleavinger v. Saxner,

1109 the Supreme Court held that 

the defendants, prison officials, who held disciplinary hearings were 

not entitled to claim absolute immunity because of their lack of independence and insufficient procedural safeguards. The Court found 

that a committee of federal prison officials did not perform a judicial 

act in deciding to discipline a prisoner after a hearing. The committee 

members were not administrative law judges. Rather they work with 

the fellow employee who lodged the disciplinary charge against the inmate, and are thus under pressure to resolve the matter in favor of the 

prison institution and the fellow employee.1110

The Supreme Court held that court reporters may not assert absolute immunity because they do not engage in the kind of discretionary 

decision making or exercise of judgment protected by judicial immunity.1111 Federal appellate court authority holds that judicial law clerks 

may claim absolute immunity “where they are performing discretionary acts of a judicial nature.”1112 However, the ministerial acts of court 

clerks are governed by qualified immunity.1113

III. Prosecutorial Immunity

A prosecutor is absolutely immune when acting as an advocate for the 

state by engaging in conduct that is “intimately associated with the judicial 

phase of the criminal process.”1114 Supreme Court decisional law holds that 

“acts undertaken by a prosecutor in preparing for the initiation of judicial 

proceedings or for trial, and which occur in the course of his role as an 

advocate for the State, are entitled to the protection of absolute immunity.”1115 Prosecutors are not absolutely immune from liability for administrative actions or investigative functions not closely related to either trial 

preparation or the trial process. Prosecutorial immunity does protect the 

prosecutor in her role as advocate even if she acted in clear violation of 

law,1116 or even “with an improper state of mind or improper motive.”1117

Further, “a prosecutor is absolutely immune from a civil conspiracy charge 
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when his alleged participation in the conspiracy consists of otherwise immune acts.”1118

In Imbler v. Pachtman,

1119 the Court held that a prosecutor was entitled 

to absolute immunity for “initiating a prosecution and in presenting the 

State’s case.”1120 The Court found that prosecutorial immunity protected 

even the knowing use of false testimony at trial and deliberate suppression 

of exculpatory evidence.1121 The Court granted absolute immunity after 

considering two issues: (1) the availability of immunity at common law 

and (2) whether absolute immunity would undermine the goals of § 1983. 

At common law, prosecutors had immunity from suits based on malicious 

prosecution and defamation. In addition, the Court reasoned that absolute prosecutorial immunity properly shields prosecutors from suits by 

disgruntled criminal defendants, and protects their ability to act decisively. 

The Court found, on the one hand, that qualified immunity would not adequately protect prosecutors and, on the other hand, that the remedies of 

professional self-discipline and criminal sanctions would serve as adequate 

checks on the broad discretion of prosecutors.1122

Prosecutors have been held absolutely immune to carry out such advocacy actions as

• deciding whether to prosecute;

• engaging in pretrial litigation activities concerning applications for 

arrest and search warrants, bail applications, and suppression motions;

• appointing special prosecutor;

• making decisions concerning extradition;

• preparing for trial, including interviewing witnesses and evaluating 

evidence;

• failing to turn over exculpatory material to defense;

• introducing evidence;

• plea bargaining;

• entering into release-dismissal agreement;

• making sentencing recommendations;

• failing to disclose exculpatory material to defense in post-conviction 

proceedings.1123

Prosecutors, however, may not claim absolute immunity for investigative and administrative functions not related either to trial preparation 

or to the trial process.1124 Thus, decisional law holds that prosecutors may 
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assert only qualified immunity for such administrative and investigative 

functions as

• holding a press conference;1125

• engaging in investigative activity prior to the establishment of probable cause to arrest;1126

• providing the police with legal advice during the investigative 

phase;1127

• ordering police to conduct warrantless arrests;1128 and

• participating in execution of material witness warrant.1129

Courts often must draw fine distinctions in determining whether the 

prosecutor’s actions should be characterized as advocacy, or as investigative or administrative activity.1130 In Van de Kamp v. Goldstein1131 (discussed in detail infra), the Supreme Court held that even a prosecutor’s 

administrative actions are protected by absolute prosecutorial immunity 

when they are closely related to the trial process. In Burns v. Reed,

1132 the 

§ 1983 complaint challenged the prosecutor’s (1) misleading presentation 

of a police officer’s testimony at a probable cause hearing for the issuance 

of a search warrant, and (2) legal advice to police officers about the use 

of hypnosis as an investigative tool and the existence of probable cause to 

arrest the plaintiff.1133 The Supreme Court held that the prosecutor had 

absolute immunity for his participation at the probable cause hearing,1134

but only qualified immunity for his legal advice to the police.1135 While 

the prosecutor at the probable cause hearing acted as an “advocate for the 

state,”1136 “advising the police in the investigative phase” was too remote 

from the judicial process.1137 Furthermore, it would be “incongruous” to 

afford prosecutors absolute immunity “from liability for giving advice to 

the police, but to allow police officers only qualified immunity for following the advice.”1138

In Buckley v. Fitzsimmons,1139 the Court again stressed that absolute 

prosecutorial immunity applies only when the prosecutor’s challenged action is sufficiently related to the judicial process. The Court held that the 

prosecutor did not have absolute immunity for: (1) conspiring “to manufacture false evidence that would link [the plaintiff’s] boot with the boot 

print the murderer left on the front door,” and (2) conducting a press conference defaming the plaintiff shortly before the defendant’s election and 

the grand jury’s indictment of the plaintiff.1140 In neither instance did the 

prosecutor act as an “advocate” for the state.1141
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The Buckley Court attempted to create a bright line for distinguishing prosecutorial acts from investigative acts by holding that a prosecutor’s “advocacy” starts when he has probable cause to make an arrest.1142 It 

blurred the line, however, by stating that the presence or absence of probable cause is not dispositive of the issue of absolute immunity because, even 

after a prosecutor has probable cause, he may perform investigative work 

protected only by qualified immunity.1143 In Buckley, the prosecutor did 

not have probable cause to arrest the plaintiff before he allegedly manufactured false evidence and thus was not entitled to absolute immunity. With 

respect to the defamatory press conference, the Court found that even if 

media relations is an important part of a prosecutor’s job, it is not functionally tied to the judicial process.

In Kalina v. Fletcher,

1144 however, the Court did not refer to the presence 

or absence of probable cause in deciding whether actions performed by a 

prosecutor were protected by absolute immunity. Instead, it focused on 

whether the prosecutor had filed sworn or unsworn pleadings. The Court 

held that the prosecutor had absolute immunity for filing two unsworn 

pleadings—an information and a motion for an arrest warrant, because 

these were advocacy functions—but not for the act of personally vouching 

for the truthfulness of facts set forth in a document called a “Certification 

for Determination of Probable Cause,” because this was akin to the traditional function of a complaining witness. The Court refused to extend 

absolute immunity to the extent the prosecutor performed the function 

of a complaining witness because common law did not provide absolute 

immunity for this type of conduct.1145

In Van de Kamp v. Goldstein,

1146 the Supreme Court unanimously held 

that absolute prosecutorial immunity protected a District Attorney and his 

Chief Deputy from monetary liability on a § 1983 wrongful conviction 

claim based upon allegations that they failed to adequately train and supervise prosecutors in their office on their Brady1147 obligations concerning 

impeachment material.

Thomas Goldstein alleged in his § 1983 complaint that the Los Angeles prosecutors’ failure to disclose vital impeachment evidence caused his 

wrongful homicide conviction. He alleged that in 1980 he was convicted of 

murder:

that this conviction depended in critical part upon the testimony of 

Edward Floyd Fink, a jailhouse informant; that Fink’s testimony was 
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unreliable and false; that Fink had previously received reduced sentences for providing prosecutors with favorable testimony in other cases; 

that at least some prosecutors in the Los Angeles County District Attorney’s Office knew about the favorable treatment; that the office had not 

provided Goldstein’s attorney with the information; and that . . . the 

prosecutor’s failure to provide Goldstein’s attorney with this potential 

impeachment information had led to his erroneous conviction.1148

The Court recognized that prosecutorial immunity allows prosecutors to 

carry out their advocacy duties independently, without looking over their 

shoulder fearing monetary liability, and to prevent deflection of prosecutorial energies to the defense of claims for damages.1149

Van de Kamp also acknowledged, however, that prosecutorial immunity does not extend to a prosecutor’s conduct not intimately related to the 

judicial process. The Court stated:

In the years since Imbler, we have held that absolute immunity applies 

when a prosecutor prepares to initiate a judicial proceeding [Burns v. 

Reed, 500 U.S. 478, 492 (1991)], or appears in court to present evidence 

in support of a search warrant application [Kalina v. Fletcher, 522 U.S. 

118, 126 (1997)] . . . [but not] when a prosecutor gives advice to police 

during a criminal investigation, see Burns, supra, at 496, when the prosecutor makes statements to the press, Buckley v. Fitzsimmons, 509 U.S. 

259, 277 (1993), or when a prosecutor acts as a complaining witness 

in support of a warrant application, Kalina, supra, at 132 (Scalia, J., 

concurring). This case, unlike these earlier cases, requires us to consider how immunity applies where a prosecutor is engaged in certain 

administrative activities.1150

The Court agreed with Goldstein that his claims attacked the district attorney “office’s administrative procedures.”1151 Nevertheless, assuming that 

the district attorney and his chief deputy had “certain” due process “obligations as to training, supervision, or information-system management,” the 

Court held “that prosecutors involved in such supervision or training or 

information-system management enjoy absolute immunity from the kind 

of legal claims at issue here.”1152 It reasoned that prosecutorial immunity 

was applicable because, even though the complaint attacked administrative actions, these actions were intimately connected to the criminal prosecutions against Goldstein. The Court put it this way:

Here, unlike with other claims related to administrative decisions, an 

individual prosecutor’s error in the plaintiff’s specific criminal trial 
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constitutes an essential element of the plaintiff’s claim. The administrative obligations at issue here are thus unlike administrative duties 

concerning, for example, workplace hiring, payroll administration, the 

maintenance of physical facilities, and the like. Moreover, the types of 

activities on which Goldstein’s claims focus necessarily require legal 

knowledge and the exercise of related discretion, e.g., in determining 

what information should be included in the training or the supervision 

or the information-system management.1153

Further, Van de Kamp ruled that the fact that the defendants’ general 

supervisory, training, and information management actions were at issue, 

rather than supervision of a particular prosecution, was not critical.

That difference does not preclude an intimate connection between 

prosecutorial activity and the trial process. The management tasks at 

issue ... concern how and when to make impeachment information 

available at a trial. They are thereby directly connected with the prosecutor’s basic trial advocacy duties. And, in terms of Imbler’s functional 

concerns, a suit charging that a supervisor made a mistake directly related to a particular trial ... and a suit charging that a supervisor trained 

and supervised inadequately ... would seem very much alike.1154

In other words, supervisory prosecutors, like trial prosecutors, should be 

able to make decisions free of the fear of personal liability.

The Court made clear that it would not allow § 1983 plaintiffs’ attorneys 

to work an end run around prosecutorial immunity, because “[m]ost important, the ease with which a plaintiff could restyle a complaint charging 

a trial failure so that it becomes a complaint charging a failure of training 

or supervision would eviscerate Imbler.”1155

The Court’s rationale for applying absolute immunity to the training 

and supervision claims also applied to the information system claim, even 

if that claim was even more “purely administrative” in nature. “Deciding 

what to include and what not to include in an information system is little 

different from making similar decisions in respect to training,” in that each 

process “requires knowledge of the law.”1156

This type of information system would require courts to determine 

whether there is a need for an information system; if so, what kind of system; “and whether an appropriate system would have included Giglio-related [impeachment] information about one particular kind of trial informant.”1157 These decisions, too, are intimately associated with the judicial 

phase of the criminal process. “Consequently, where a § 1983 plaintiff 
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claims that a prosecutor’s management of a trial-related information system is responsible for a constitutional error at his or her particular trial, 

the prosecutor responsible for the system enjoys absolute immunity just 

as would the prosecutor who handled the particular trial itself.”1158 The 

upshot of Van de Kamp is that characterization of a prosecutor’s actions as 

“administrative” will not necessarily negate prosecutorial immunity.

It may be hard to determine whether a prosecutor’s actions in the postconviction stage are sufficiently related to her advocacy function to warrant absolute immunity. In Warney v. Monroe County,

1159 the Second Circuit, relying on Van de Kamp, held that a prosecutor’s delay of more than 

two months during postconviction proceedings in communicating the 

exonerating results of DNA testing to Warney’s attorney was shielded by 

absolute prosecutorial immunity. It noted that “the line between ‘advocacy’ and ‘investigative’ functions” is especially “vexed” in the postconviction 

context, with the circuits reaching apparently conflicting results.1160 The 

court held that a prosecutor who acts as an advocate during postconviction proceedings is protected by absolute immunity because “a prosecutor 

defending a post-conviction petition remains the state’s advocate in an adversarial proceeding that is an integral part of the criminal justice system,” 

and postconviction proceedings often involve the same kinds of legal issues 

and advocacy skills as the underlying criminal case.1161 It found that the 

prosecutor’s DNA “testing, disclosure, and even the delay in making disclosure, as well as the identification of the real killer—were integral to and 

subsumed in the advocacy functions being performed in connection with 

Warney’s post-conviction initiatives.”1162

The decisional law thus draws some very fine distinctions between 

prosecutorial actions protected by absolute immunity because they resemble advocacy, and prosecutorial actions that are not protected by absolute 

immunity because they are investigative or administrative in nature and 

not sufficiently related to trial preparation, or the trial process. A useful 

rule of thumb is that “[t]he more distant a function is from the judicial 

process, the less likely absolute immunity will attach.”1163

Social Workers. There has been substantial litigation concerning the 

immunity protections of social workers involved in child neglect and dependency proceedings. Courts hold that social workers who initiate, testify, or otherwise participate in the judicial aspects of these proceedings 

are, under the functional approach, protected by absolute immunity, while 
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social workers engaged in executive or administrative actions may assert 

qualified immunity.1164 As a general observation, when qualified immunity 

applies, the courts typically engage in a fact-specific evaluation of the reasonableness of the social worker’s actions.

IV. Witness Immunity

In Briscoe v. LaHue,

1165 the Supreme Court held that witnesses, including 

police officers who testify in judicial proceedings, are protected by absolute 

immunity, even if the witness gave perjured testimony. It reasoned that 

denying absolute immunity might make some witnesses reluctant to testify 

or cause them to distort their testimony for fear of liability.1166 “Subjecting 

. . . police officers to damages liability under § 1983 for their testimony 

might undermine not only their contribution to the judicial process but 

also the effective performance of their other public duties.”1167

In Rehberg v. Paulk,

1168 the Supreme Court extended Briscoe’s absolute 

witness immunity for trial testimony to witnesses who testify before the 

grand jury. It found that the same justifications for granting absolute immunity for trial witnesses apply to grand jury witnesses. “In both contexts, 

a witness’ fear of retaliatory litigation may deprive the tribunal of critical 

evidence. And in neither context is the deterrent of potential civil liability 

needed to prevent perjurious testimony,” because in each instance perjury 

is subject to criminal prosecution.1169

Rehberg also held that absolute immunity protects alleged conspiracies to give perjured testimony and witness preparation.1170 The Court 

reasoned that were the rule “otherwise, ‘a criminal defendant turned civil 

plaintiff could simply reframe a claim to attack the preparation instead of 

the absolutely immune actions themselves.’”1171 In fact, in the “vast majority” of claims against grand jury witnesses, the witness and prosecutor 

engaged in preparatory activity, such as preliminary discussions in which 

the witness revealed the substance of her intended testimony. The Court 

was concerned that failure to immunize an alleged conspiracy to give false 

testimony and trial preparation would make it easy for § 1983 claimants to 

evade absolute witness immunity.1172 The Court, however, cautioned that it 

was not holding or suggesting that absolute immunity extends to all of the 

officer’s pretestimony activity.1173

The Court in Rehberg acknowledged that its precedent supported the 

conclusion that law enforcement officials who submitted affidavits in sup-
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port of applications for arrest warrants were not entitled to absolute immunity because they were “complaining witnesses.” Prior to Rehberg, however, the Court had never provided a workable definition of “complaining 

witness.” Rehberg resolved that a grand jury witness is not a “complaining 

witness.”1174 At common law in 1871 a “complaining witness” referred to an 

individual who procured an arrest and initiated a criminal prosecution.1175

A witness who only testified before a grand jury was not considered a complaining witness. In fact, the term is a misnomer because a complaining 

witness need not testify at all.1176 The Court found that the plaintiff in 

Rehberg failed to provide a “workable standard” for determining whether 

a particular grand jury witness is a “complaining witness,” and held that 

merely testifying before the grand jury or at trial does not render the witness a complaining witness. Although a law enforcement officer who testifies before the grand jury may be an important witness who wants the 

grand jury to return an indictment, in fact it is almost always a prosecutor, 

not a grand jury witness, who decides to present the case to the grand 

jury.1177

Most states that do not use the grand jury system provide a preliminary 

hearing. The Court in Rehberg cited, with apparent approval, appellate decisions holding that witnesses at a preliminary hearing are entitled to the 

same immunity granted grand jury witnesses.1178

Rehberg does not resolve the issue of immunity to which other witnesses are entitled—for example, witnesses in civil litigation, before administrative agencies, and in arbitration proceedings.1179 One reason these issues 

do not arise with great frequency in § 1983 litigation is because a § 1983 

defendant must have acted under color of state law. Law enforcement officers who testify pursuant to their official responsibilities clearly act under 

color of state law. Private witnesses clearly do not, unless they conspired 

with a public official.

To summarize the critical rulings in Rehberg:

• grand jury witnesses are protected by absolute witness immunity;

• absolute witness immunity shields not only the testimony itself, but 

also an alleged conspiracy to give false testimony and trial preparation;

• via strong dictum, witnesses who testify at preliminary hearings are 

shielded by absolute witness immunity; and
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• although “complaining witnesses” do not enjoy absolute immunity, 

merely testifying before the grand jury does not render the witness 

a “complaining witness.”

V. Legislative Immunity

State and local legislators enjoy absolute immunity for their legislative 

acts.1180 Under the functional approach to immunity, the critical issue is 

whether the official was engaged in legislative activity.1181 The determination of an act’s legislative or executive character “turns on the nature of the 

act, rather than on the motive or intent of the official performing it.”1182

Legislative action involves the formulation of policy, whereas executive action enforces and applies the policy in particular circumstances.1183

In Bogan v. Scott-Harris,

1184 the Supreme Court held that local legislators are entitled to absolute immunity for their legislative activities.1185 The 

common law afforded local legislators absolute immunity and, under the 

functional approach, local legislators are engaged in the same types of activities as their state counterparts. The Court thus unanimously extended 

absolute immunity to a city council member and mayor whose challenged 

actions were promulgating a new city budget and signing a law that eliminated the plaintiff’s position after she complained about racial epithets in 

the workplace.

The decision in Bogan demonstrates (1) that an official who is not a legislative official, such as the mayor, may be protected by absolute legislative 

immunity if her conduct was an integral step in the legislative process;1186

and (2) that an official who engages in legislative action may be protected 

by absolute immunity even if the legislative acts affected only one individual.1187

In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency,

1188 the 

Supreme Court determined that a decision by the Tahoe Regional Planning Agency (TRPA) regarding land use was a legislative act. TRPA was an 

agency created by the states of California and Nevada, with the approval of 

Congress, for the purpose of creating a regional plan for “land use, transportation, conservation, recreation, and public services.”1189 The Court held 

that absolute immunity applied to “the [individual] members of the TRPA 

acting in a legislative capacity,” even though there was no common-law immunity for such an entity, and even though all the members of the agency 

were appointed, not elected.
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In Supreme Court of Virginia v. Consumers Union of the United States,

1190

the Supreme Court determined that the justices of the Supreme Court of 

Virginia performed a legislative act in promulgating professional responsibility rules for attorneys.1191 The Court stated that the Virginia court had 

exercised “the State’s entire legislative power with respect to regulating the 

Bar, and its members are the State’s legislators for the purpose of issuing” 

the rules.1192 By focusing on the action performed, not the job description 

of the actor, the Court emphasized the functional nature of absolute immunity.

Unlike most common-law immunity, legislative immunity is not limited to monetary relief; it also encompasses injunctive and declaratory 

relief.1193 The rationale is that claims for injunctive and declaratory relief 

may divert legislative officials from their legislative function, and delay and 

disrupt the legislative process.1194
143

16. Personal Liability: Qualified Immunity

I. Generally

Qualified immunity may well be the most important issue in § 1983 litigation. It is certainly the most important defense, and is frequently asserted 

as a defense to § 1983 personal-capacity claims for damages.1195 Furthermore, courts decide a high percentage of § 1983 personal-capacity claims 

for damages in favor of the defendant on the basis of qualified immunity. 

The Supreme Court holds that qualified immunity is not just immunity 

from liability, but also “immunity from suit,” that is, from the burdens of 

having to defend the litigation.1196

Qualified immunity protects an executive official who violated the 

plaintiff’s federally protected right so long as the official did not violate 

clearly established federal law. Therefore, when qualified immunity is asserted as a defense, the critical issue is whether the defendant/official violated 

federal law that was clearly established at the time she acted.1197 When, as 

is often the case, the § 1983 plaintiff alleges multiple constitutional claims 

against multiple defendants who have asserted qualified immunity, the district court must analyze the immunity defense for each claim and each 

defendant, and not lump the various claims and defendants together.1198

That an official may have violated clearly established state law is generally 

irrelevant to the qualified immunity defense.1199

“Qualified immunity balances two important interests—the need to 

hold public officials accountable when they exercise power irresponsibly 

and the need to shield officials from harassment, distraction, and liability 

when they perform their duties reasonably.”1200 It is designed to allow government officers to make reasonable though “mistaken judgments about 

open legal questions. [I]t protects ‘all but the plainly incompetent or those 

who knowingly violate the law.’”1201 Its “basic thrust” . . . is to free officials 

from the concerns of litigation, including ‘avoidance of disruptive discovery,’” because the demands of litigation can seriously divert officials from 

their official responsibilities.1202

Qualified immunity protects officials who acted in an objectively reasonable manner. An official who violated clearly established federal law did 

not act in an objectively reasonable manner, while an official who violated 
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federal law, but not clearly established federal law, did act in an objectively 

reasonable manner.1203 The official’s subjective motivation is irrelevant to 

the qualified immunity defense, but may be relevant to the constitutional 

claim asserted.1204 On the other hand, the information known to the officer 

when she reacted is often pertinent in determining whether she violated 

clearly established federal law.1205

The Supreme Court has described the qualified immunity test as a “fair 

warning” standard—that is, if the federal law was clearly established, the 

official is on notice that violation of the federal law may lead to personal 

monetary liability.1206 Under qualified immunity, public officials “are not 

liable for bad guesses in gray areas; they are liable for transgressing bright 

lines.”1207

A. Mistakes of Law and Fact

In Saucier v. Katz,

1208 the Supreme Court emphasized that qualified immunity protects an officer’s reasonable mistakes about what the law requires. It explained that the purpose of qualified immunity is to protect 

officers who make reasonable mistakes of law, not mistakes of fact.

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to legal constraints as to particular 

police conduct. It is sometimes difficult for an officer to determine 

how the relevant doctrine, here excessive force, would apply to factual situations the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as 

to whether a particular amount of force is legal in the circumstances. If the officer’s mistake as to what the law requires is reasonable, 

however, the officer is entitled to the immunity defense.1209

On the other hand, under the Fourth Amendment, officers who 

have a “reasonable but mistaken belief as to the facts” (e.g., facts relevant to the question of probable cause) will not be found to have violated the Constitution.1210 Similarly, “if an officer reasonably, but mistakenly believed that a suspect was likely to fight back, for instance, the 

officer would be justified [under the Fourth Amendment] from using 

more force than in fact was needed.”1211 In other words, reasonable mistakes of fact are relevant to the constitutional merits, while reasonable 

mistakes of law are relevant on qualified immunity.1212 Nevertheless, 

some justices have stated that “qualified immunity applies regardless of 
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whether the government official’s error is ‘a mistake of law, a mistake of 

fact, or a mistake based on mixed questions of law and fact.’”1213

B. Advice of Counsel; Supervisor’s Order; Action Pursuant to Statute or 

Ordinance

The courts of appeals agree that, although an officer’s acting on advice 

of counsel or pursuant to a supervisor’s orders or approval will not itself

protect an official who violated clearly established federal law, these are 

pertinent considerations for determining whether the official acted in 

an objectively reasonable manner. The courts of appeals disagree, however, over how much weight to give these factors.1214

In Messerschmidt v. Millender,

1215 the Supreme Court, holding that 

police officers who sought and executed a search warrant of the home 

were protected by qualified immunity, took into account the facts that 

they sought and obtained approval from a supervisor and a deputy district attorney. The Court ruled that

the fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the 

conclusion that an officer could reasonably have believed that the 

scope of the warrant was supported by probable cause.1216

The Court spelled out that “[t]he fact that the officers secured these 

approvals is certainly pertinent in assessing whether they could have 

held a reasonable belief that the warrant was supported by probable 

cause.”1217 The Court did not spell out how much weight should be 

accorded to the securing of approvals from superiors in the qualified 

immunity analysis. As noted earlier, the courts of appeals have been in 

conflict on this issue.

The circuits also disagreed about the significance of a defendant/

officer having acted pursuant to a superior’s order.1218 In the author’s 

view, under Messerschmidt this would be pertinent, although how much 

weight it should be accorded is uncertain.

II. Who May Assert Qualified Immunity? Private Party State Actors

State and local officials who carry out executive and administrative functions may assert qualified immunity.1219 So far the Supreme Court has not 

allowed private party state actors to assert qualified immunity. In Richard-
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son v. McKnight,

1220 the Court held that private prison guards are not entitled to assert qualified immunity. In Wyatt v. Cole,

1221 the Court held that 

a creditor who used a state replevin procedure could not assert qualified 

immunity. In both cases, however, the Court left open whether the defendants were entitled to assert a good-faith defense. Some lower courts have 

allowed a private party state actor defendant to assert a good-faith defense 

that implicates the defendant’s subjective intent.1222

Richardson and Wyatt also left open whether private party state actors 

who carry out public functions, such as mental evaluations or civil commitments, may assert qualified immunity.1223 An important factor may be 

whether the defendant acted under government supervision. In Richardson, the Court regarded the limited direct government supervision of the 

private prison guards as an important factor justifying denial of the right 

to assert qualified immunity.1224

In Filarsky v. Delia,

1225 the Supreme Court held that a private attorney 

hired by the city of Rialto, California, was entitled to assert qualified immunity from § 1983.1226 Steve Filarsky had been hired to conduct an investigation concerning an employment dispute between the city and a city 

firefighter. In holding that Filarsky was entitled to assert qualified immunity, the Court relied, in part, upon the facts that in 1871 many governmental functions, including law enforcement functions, were carried out by a 

mixture of public employees and private individuals, and the common-law 

immunities did not distinguish between these governmental officials and 

private individuals.1227 In other words, the private individuals were accorded the same immunity as public officers.

As a policy matter, the Court in Filarsky found that whether a person

carrying out a governmental function is a full- or part-time government 

employee, or a private party retained by the government for a particular 

purpose, affording the individual immunity furthers the government’s interests in attracting talented individuals, and in allowing them to carry out 

their official responsibilities without fear of liability and without distractions of ongoing lawsuits.1228

The Court in Filarsky found its earlier decisions in Wyatt and Richardson distinguishable. Whereas attorney Filarsky was hired by the city to 

carry out a governmental investigation, the creditors in Wyatt who invoked 

the state replevin statute pursued merely private ends and carried out no 

governmental responsibilities. The Court in Filarsky found Richardson to 
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be based on two notions: (1) that private market forces ensured that the 

prison guards would not perform their public duties with unwarranted 

timidity, and (2) that the guards functioned with only limited direct governmental supervision.1229 Post-Filarsky appellate decisions are cited in the 

endnote.1230

III. Clearly Established Federal Law

Normally, a controlling precedent of the Supreme Court, the particular circuit, or the highest court in the state is necessary to clearly establish federal 

law.1231 The right must be clearly established in a fairly

particularized . . . sense: the contours of the right must be sufficiently 

clear that a reasonable official would understand that what he is doing 

violates that right. That 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 light of pre-existing law the 

unlawfulness must be apparent.1232

For federal law to be clearly established, there must be fairly close factual 

correspondence between the prior precedents and the case at hand.1233 Federal law is less likely to be clearly established when it depends on an ad hoc 

balancing of competing interests between the state and the individual.1234 

Decisions from outside the controlling jurisdiction do not clearly establish 

federal law absent “a consensus of cases of persuasive authority such that a 

reasonable officer could not have believed that his actions were lawful.”1235 

In some cases, the federal law might be clearly established even in the absence of controlling precedent. For example, the type of conduct engaged 

in by the defendant may be so obviously unconstitutional that there was 

no need to litigate the issue previously.1236 On the other hand, a conflict 

in the lower courts is a strong indicator that federal law was not clearly 

established.1237 “If judges thus disagree on a constitutional question, it is 

unfair to subject police to money damages for picking the losing side of 

the controversy.”1238

A. Hope v. Pelzer

In Hope v. Pelzer,

1239 the Court held that, under the particular circumstances, the defendants’ (state prison officials) act of cuffing an inmate 

to a hitching post for a lengthy period of time while shirtless in the 

hot Alabama sun violated clearly established Eighth Amendment stan-
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dards. It found that the Eleventh Circuit had erred in applying a rigid 

rule that for the federal law to be clearly established the facts of the existing precedent must be “materially similar” to the facts of the instant 

case. “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.”1240 The Court found 

that the defendants in Hope had fair warning that their conduct was 

unconstitutional from Eleventh Circuit precedent (although not factually “on all fours”); a regulation of the state Department of Corrections 

relating to use of the hitching post (the regulation had been ignored by 

prison officials); and a Department of Justice (DOJ) transmittal to the 

state Department of Corrections advising it that its use of the hitching 

post was unconstitutional. The Supreme Court relied on this last factor, even though the record did not show that DOJ’s position had been 

communicated to the state prison officials.1241

In Ashcroft v. al-Kidd,

1242 the Supreme Court articulated several important principles for determining whether the federal law was clearly 

established when the defendant acted.

1. Law can be clearly established even though there is no “case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”1243

2. Broad constitutional principles cannot clearly establish federal 

law. The Supreme Court has “repeatedly told courts . . . not to 

define clearly established law at a high level of generality. The 

general proposition, for example, that an unreasonable search 

or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is 

clearly established.”1244

3. Dictum in a federal district court opinion did not clearly establish the federal law, even though the footnote referred specifically to the defendant, Ashcroft.1245 “Even a district judge’s ipse 

dixit of a holding is not ‘controlling authority’ in any jurisdiction, much less, in the entire United States; and his ipse dixit of 

a footnoted dictum falls far short of what is necessary absent 

controlling authority: a robust ‘consensus of cases of persuasive 

authority.’”1246

4. The fact that eight judges of the Ninth Circuit, who dissented 

from denial of en banc review, agreed with Ashcroft’s position 
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further supported the conclusion that the pertinent federal law 

was not clearly established.1247

In some cases, Supreme Court justices themselves have disagreed 

about whether the federal law was clearly established. In Safford Unified 

School District # 1 v. Redding,1248 eight justices concluded that the school 

officials’ (defendants’) strip search of a thirteen-year-old student for 

ibuprofen violated the Fourth Amendment. However, six justices (Justice Souter, joined by C.J. Roberts, Justices Scalia, Kennedy, Breyer, and 

Alito) held that the Fourth Amendment law was not clearly established 

at the time of the search. Two justices (Justices Stevens and Ginsburg) 

found that the Fourth Amendment law was clearly established, and one 

justice (Justice Thomas) found that there was no Fourth Amendment 

violation. Writing for the Court, Justice Souter stated that federal law 

can be clearly established even in the absence of controlling precedent because, as Judge Posner stated, the “‘easiest cases’” do not always 

arise.1249 “But even as to action less than an outrage, ‘officials can still 

be on notice that their conduct violates established [federal] law . . . in 

novel factual circumstances.’”1250 Here, however, differences of opinion 

among courts of appeals judges around the country, as well as differences between the circuit authority and the Supreme Court’s Fourth 

Amendment decision, were “substantial enough to require immunity 

for the school officials in this case. . . . [C]ases viewing school strip 

searches differently from the way we see them are numerous enough, 

with well-reasoned majority and dissenting opinions, to counsel doubt 

that we were sufficiently clear in the prior statement of law.”1251 The 

Court cautioned, however, that entitlement to qualified immunity is 

not always “the guaranteed product of disuniform views of the law in 

the other federal, or state, courts, and the fact that a single judge, or 

even a group of judges, disagrees about the contours of a right does not 

automatically render the law unclear.”1252

In evaluating a qualified immunity defense, federal judges may well 

disagree over which body of law to take into account; which facts are 

pertinent; the necessary factual correspondence between the case at 

hand and the pertinent precedents; and whether the law defined and 

established the right at issue with sufficient clarity. For example, in alKidd, the Ninth Circuit held that former Attorney General Ashcroft’s 

material witness policy violated clearly established Fourth Amendment 
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law, but the Supreme Court disagreed, and held Ashcroft protected by 

qualified immunity.

B. Application of Qualified Immunity to Fourth Amendment Claims

The qualified immunity “objective reasonableness” defense applies even 

to Fourth Amendment challenges to arrests, searches, and uses of force 

where the constitutional standard itself is objective reasonableness.1253

In Malley v. Briggs,

1254 the Court held that police officers who executed an invalid arrest warrant may nevertheless assert the defense of 

qualified immunity.1255 The Court recognized two standards of reasonableness—one under the Fourth Amendment and one under qualified 

immunity—and that conduct unreasonable under the Fourth Amendment could still be objectively reasonable for the purpose of qualified 

immunity.1256 It noted that it had similarly recognized two standards of 

reasonableness when creating the objective good-faith exception to the 

exclusionary rule.1257 Under that good-faith exception, even if officers 

obtained evidence by committing an unreasonable search or seizure in 

violation of the Fourth Amendment, the evidence could nevertheless be 

introduced in the prosecutor’s case-in-chief if the officers acted in “objective” good-faith reliance on a search warrant. The “objective goodfaith” standard asks whether a “reasonably well-trained officer” with a 

“reasonable knowledge of what the law prohibits” would have known 

that the challenged action violated the Fourth Amendment.1258

The Court, in Messerschmidt v. Millender,

1259 refined and applied 

Malley to police officers who applied for and executed an overbroad 

warrant to search a home for guns and gang-related material. It held 

that, assuming arguendo that the warrant should not have been issued, 

the officers were protected by qualified immunity because they acted in 

an objectively reasonable manner.

The fact that a neutral magistrate issued the warrant was “the clearest indication that the officers acted in an objectively reasonable manner. . . .”1260 This is not to say that a neutral magistrate’s issuance of 

a warrant is dispositive of qualified immunity. Police officers will not 

be protected by qualified immunity when “‘it is obvious that no reasonably competent officer would have concluded that a warrant should 

issue,’”1261 as, “for example, where the warrant was ‘based on an affidavit 

so lacking in indicia of probable cause as to render official belief in its 
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existence entirely unreasonable.’”1262 But this was not the case in Messerschmidt because, although “[t]he officers’ judgment that the scope of 

the warrant was supported by probable cause may have been mistaken, 

. . . it was not ‘plainly incompetent.’”1263 Only in “rare” circumstances 

will it be found that “the magistrate so obviously erred that any reasonable officer would have recognized the error.”1264

The Court also gave weight to the fact that the defendant–officers 

sought and obtained approval from a superior and a deputy district 

attorney. This was “certainly pertinent” and provided “further support” 

that the officers reasonably believed that the warrant was supported by 

probable cause.1265

In Anderson v. Creighton,

1266 the Supreme Court affirmed this dual 

standard of reasonableness in holding that police officers could assert 

qualified immunity for a warrantless search of the plaintiff’s home. The 

Court conceded that the general principles of the Fourth Amendment 

are clear: a warrantless search of an individual’s home, absent probable cause and exigent circumstances, is unreasonable.1267 It explained, 

however, that these general principles did not determine whether the 

officers were protected by qualified immunity. Whether the officers violated “clearly established” law requires consideration of whether the 

“contours of the right [were] sufficiently clear that a reasonable official 

would understand that what he [did] violate[d] that right.”1268

Anderson established that a police officer may “reasonably, but mistakenly, conclude that probable cause is present.”1269 Similarly, a police 

officer may reasonably but mistakenly conclude that exigent circumstances exist.1270 If there is a “legitimate question” as to the unlawfulness of the conduct, qualified immunity protects the officer.1271 Furthermore, “the very action in question [need not have] been previously 

held unlawful,” but if “in the light of preexisting law the unlawfulness 

[was] apparent,” then qualified immunity does not apply.1272

Similarly, in Saucier v. Katz,

1273 the Supreme Court held that the 

qualified immunity “objective reasonableness” test applies to Fourth 

Amendment “excessive force” arrest claims that are governed by the 

Graham v. Connor1274 “objective reasonableness” standard.1275 It ruled 

that the pertinent qualified immunity inquiry is whether the officer 

reasonably, though mistakenly, believed that his use of force complied 
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with the Fourth Amendment; i.e., whether he made a reasonable mistake about the state of the law.

Applying qualified immunity to Fourth Amendment constitutional claims governed by an objective reasonableness standard gives the 

official two layers of reasonableness protection: one under the Fourth 

Amendment itself, and another under qualified immunity. This can 

lead to the awkward conclusion that an official acted in a reasonable 

manner for immunity purposes though unreasonably for constitutional purposes.1276 Courts typically try to avoid this linguistic awkwardness 

of an official acting “reasonably unreasonably” in arrest and search cases by asking whether the official had arguable probable cause, or whether the officer reasonably believed there was probable cause, or whether 

a reasonable officer could have mistakenly concluded there was probable cause.1277 So, too, in Fourth Amendment excessive force cases, courts 

inquire whether the officer reasonably, though mistakenly, believed that 

his use of force was constitutional.1278

C. Intent or Motive as Element of Constitutional Claims

There is potential tension between a constitutional claim that implicates the defendant’s subjective intent (such as a free speech retaliation 

claim) and qualified immunity, under which the defendant’s subjective 

intent is irrelevant. The Supreme Court, in Crawford-El v. Britton,

1279

held that when the constitutional claim implicates the defendant/official’s subjective intent, the lower courts should follow the Federal Rules 

of Civil Procedure and not place special burdens on plaintiffs who are 

faced with summary judgment qualified immunity motions. The Court 

said that the federal courts should not rewrite the Federal Rules of Civil Procedure; that placing unduly harsh burdens on plaintiffs may rob 

meritorious claims of their fair day in court; and that existing pleading, motion, and discovery rules, and the Prison Litigation Reform 

Act, adequately protect defendants against insubstantial constitutional 

claims.1280

IV. Procedural Aspects of Qualified Immunity

A. Affirmative Defense; Waiver

Qualified immunity is an affirmative defense that the defendant has the 

burden of pleading.1281 Although failure to raise qualified immunity can 
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153

operate to waive the defense, federal courts have generally been reluctant to find the defense waived.1282

B. Complaint Pleading Standard

In Ashcroft v. Iqbal,

1283 the Supreme Court held that all federal court 

civil complaints are governed by the “plausibility” standard previously articulated in Bell Atlantic Corp. v. Twombly.1284 The defendants in 

Iqbal had “moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established 

unconstitutional conduct.”1285 In determining that the defendants were 

entitled to dismissal of the complaint because it did not allege a plausible claim that the defendants before the Supreme Court violated clearly 

established federal law, the Court effectively resolved that the plausibility standard governs § 1983 and Bivens claims subject to qualified 

immunity.1286

Prior to Iqbal, it was uncertain whether claims subject to qualified immunity are governed by a “heightened” pleading standard. The 

Court in Iqbal, however, did not even discuss the possibility that the 

plaintiff’s claims were subject to a “heightened” pleading standard. In 

fact, in Twombly the Court stated specifically that the plausibility standard is not a “heightened” pleading standard. Nevertheless, TwomblyIqbal requires that § 1983 complaints allege facts, not mere conclusions, 

and that these facts constitute a plausible, not merely possible or speculative, claim for relief. The Court in Iqbal stressed that “the tenet that a 

court must accept as true all of the allegations contained in a complaint 

is inapplicable to legal conclusions.”1287 When the motion to dismiss is 

based on qualified immunity, as it was in Iqbal, the district court must 

determine whether the complaint alleges sufficient facts constituting a 

plausible claim that the defendant violated clearly established federal 

law. Whether the complaint alleges a plausible claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”1288

The Court in Iqbal reiterated a key point articulated in Twombly “that 

the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery 

process.”1289 The Court said that “rejection of the careful-case-management approach is especially important in suits where Government-offi-
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cial defendants are entitled to assert the defense of qualified immunity,” 

because qualified immunity is designed to “free officials” from the demands of litigation, including “‘disruptive discovery,’” which substantially diverts officials from their official responsibilities.1290

C. Burden of Persuasion

The courts of appeals differ on the burden of persuasion for qualified 

immunity. The prevailing view is that once the defendant properly raises the defense of qualified immunity, the plaintiff has the burden of 

overcoming the immunity by showing that the defendant violated the 

plaintiff’s clearly established federal right.1291 However, the Second Circuit places the burden of persuasion on the defendant.1292

D. Motions to Dismiss, for Summary Judgment, and Judgment as Matter

of Law

1. In General

Qualified immunity is normally raised on a motion for summary 

judgment, sometimes on a motion to dismiss, and sometimes on 

a Rule 50 motion for judgment as a matter of law.1293 In addition, 

courts may consider renewed motions for qualified immunity. These 

motions may occur after the plaintiff has presented her case, at the 

close of both sides, after the jury’s special verdict, or in a motion for 

a new trial.1294 Resolution of qualified immunity is possible during 

these trial stages if the defendant is entitled to judgment as a matter 

of law.

2. Motion to Dismiss

Qualified immunity may be raised on a motion to dismiss under 

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim 

on which relief may be granted.1295 On a Rule 12(b)(6) motion, the 

district court assumes the plaintiff’s factual allegations are true and 

determines whether the allegations state a plausible claim that the 

defendant violated clearly established federal law.1296 A Rule 12(b)(6) 

motion based on qualified immunity should be granted unless the 

complaint states facts showing a plausible claim that the defendant 

violated the plaintiff’s clearly established federal right.1297
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3. Summary Judgment Motions Before and After Discovery; Discovery 

on Disputed Factual Issues

The Supreme Court’s goal in defining qualified immunity in wholly 

objective terms is to enable the district courts to resolve qualified immunity, to the greatest extent possible, as a matter of law, pretrial and 

even pre-discovery.1298 In Hunter v. Bryant,

1299 the Court held that 

qualified “[i]mmunity ordinarily should be decided by the court long 

before trial.”1300 The Court criticized the lower court for “routinely 

plac[ing] [qualified] immunity in the hands of the jury.”1301

Officials sued under § 1983 may raise the qualified immunity 

defense on summary judgment motion under Federal Rule of Civil 

Procedure 56(c) both before1302 and after discovery.1303 Under Rule 

56(c), summary judgment is permitted if there are no disputed material facts, and the defendant is entitled to judgment as a matter of 

law.1304

Summary judgment qualified immunity motions before discovery may be appropriate in some circumstances because qualified 

immunity is not only a defense to liability but also an “immunity 

from suit.”1305 Under Harlow v. Fitzgerald,

1306 discovery should not be 

allowed unless the plaintiff alleged a violation of clearly established 

federal law. If, however, the plaintiff has alleged a violation of clearly established federal law, and the defendant alleges actions that a 

reasonable officer could have thought were lawful, then courts must 

grant discovery tailored to the immunity question.1307

When responding to a summary judgment motion based on

qualified immunity, a plaintiff seeking discovery must file an affidavit with a Rule 56(f) motion demonstrating “how discovery will 

enable [him] to rebut a defendant’s showing of objective reasonableness or . . . demonstrate a connection between the information he 

would seek in discovery and the validity of the defendant’s qualified 

immunity assertion.”1308

In Crawford-El v. Britton,

1309 the Supreme Court described various options that the district court can invoke when facts concerning 

the defendant’s alleged retaliatory motive are in dispute:

1. allow the plaintiff to take a “focused deposition” of the defendant on the issue of retaliatory motive;
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2. allow discovery only on “historical facts” before allowing discovery on the defendant’s motive; and

3. order the plaintiff to file a reply, or grant the defendant’s motion 

for a more definite statement requiring specific factual allegations 

of the defendant’s conduct and motive before allowing any discovery.1310

Under Federal Rule of Civil Procedure 26, district courts may limit the number of depositions and interrogatories, the length of depositions, the “time, place, and manner of discovery,” and the sequence 

of discovery.1311 District courts may also limit discovery to an issue 

that may resolve the lawsuit before allowing discovery as to an official’s intent. For example, an official “may move for partial summary 

judgment on objective issues that are potentially dispositive and are 

more amenable to summary disposition than disputes about the official’s intent, which frequently turn on credibility assessments.”1312 In 

contrast, Federal Rule of Civil Procedure 56(f) gives district courts 

discretion to postpone deciding an official’s motion for summary 

judgment if discovery is necessary to establish “facts essential to justify the [plaintiff’s] opposition.”1313

In addition, district courts can safeguard officials’ right to be free 

from frivolous lawsuits by imposing sanctions under Federal Rule 

of Civil Procedure 11, or granting dismissal under § 1915(e)(2), 

which permits dismissal of “frivolous or malicious” in forma pauperis suits.1314 In short, district courts have “broad discretion in the 

management of the factfinding process.”1315

Although material facts are disputed in many cases in which qualified immunity is asserted, summary judgment may be granted to 

the defendant official if, interpreting the facts in the light most favorable to the plaintiff, the district court determines that these facts 

do not state a violation of clearly established federal law.1316 In Tolan 

v. Cotton,

1317 the Supreme Court stressed that, on a defendant official’s summary judgment qualified immunity motion, a federal court 

(1) may not resolve genuine issues of disputed fact in the favor of the 

defendant; and (2) must view the facts in the light most favorable 

to the non-moving party, that is, the plaintiff. The Court noted that 

these rules are not unique to qualified immunity, and reflect generally applicable summary judgment principles. As an exception to these 
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principles, the Court, in Scott v. Harris,

1318 held that when the defendant, on summary judgment, proffers a videotape of the incident 

which contradicts the plaintiff’s version of the incident, and there is 

no claim that the videotape has been doctored or fails to accurately 

depict the incident in question, the videotape will control over the 

plaintiff’s version.

If the district court grants summary judgment to the defendant 

on the basis of qualified immunity, the immunity defense relieves 

officials from the burdens of trial, protecting their “immunity from 

suit.”1319 If, however, the facts as interpreted in the light most favorable to the plaintiff indicate a violation of clearly established federal 

law, and the discovery indicates material facts are in dispute, then 

summary judgment is not possible. At this point, the “immunity 

from suit” is lost and the case must go to trial.

In Ortiz v. Jordan,

1320 the Supreme Court held that when the defendant’s summary judgment qualified immunity motion is denied 

and the case proceeds to trial, and the defendant continues to assert 

qualified immunity, qualified immunity must be evaluated based 

upon the evidence submitted at trial, rather than on the summary judgment evidence. Therefore, on the defendant’s appeal from a 

judgment on a verdict for the plaintiff, the defendant may not argue 

that the district court erred in denying her summary judgment qualified immunity motion. Rather, in these circumstances, qualified immunity must be evaluated on the basis of the trial evidence. However, to preserve qualified immunity post-verdict, the defendant must 

move for judgment as a matter of law under Federal Rule of Civil 

Procedure 50(b). Because the defendants in Ortiz failed to make such 

a motion, they were not allowed to argue on appeal that they were 

entitled to qualified immunity based on the trial evidence. The Court 

did not decide whether the result would be different if the qualified 

immunity defense raised a pure question of law, namely, whether, 

based upon undisputed facts, the defendant/official violated clearly 

established federal law.

E. Role of Judge and Jury

Supreme Court decisions state that, whenever possible, the issue of 

qualified immunity should be decided pretrial and even prediscovery, 
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normally on a motion for summary judgment.1321 When qualified immunity cannot be decided on a motion for summary judgment because 

facts relevant to qualified immunity are in dispute, the district court 

has two major options. It may be proper for the district court to submit 

the factual issues and the immunity defense to the jury under instructions that (1) tell the jury what the clearly established federal law is, and 

(2) describe the nature of qualified immunity; or, alternatively, submit 

the factual issues that are material to qualified immunity to the jury by 

special verdicts, while reserving for itself the power to determine the 

immunity defense in light of the jury’s responses to the special verdicts. Most courts have chosen the second option because it seems to 

best reflect the jury’s function as fact-finder and the court’s expertise in 

determining the law.1322 Under this approach, the defendant–official is 

“not entitled to a jury instruction regarding qualified immunity, since 

it is a legal question for the court to decide.”1323

F. Court Has Discretion Whether to First Decide Constitutional Issue or

Proceed Directly to Qualified Immunity 

In Saucier v. Katz,

1324 the Supreme Court held that when qualified immunity is asserted as a defense, the court must first determine if the 

complaint states a violation of a federally protected right, and only if 

it does, then proceed to determine whether that right was clearly established.1325 In Pearson v. Callahan,

1326 however, the Supreme Court 

overturned Saucier’s “rigid ordering of issues.” It held that federal district courts have discretion to follow the two-step approach, and first 

decide whether the complaint states a violation of a federally protected 

right, or to proceed directly to the qualified immunity issue of whether 

the defendant violated clearly established federal law.1327 The Court acknowledged that adherence to the Saucier requirement (that courts first 

decide whether the complaint states a violation of a federal protected 

right) has advantages in some circumstances: among other things, its 

methodology promotes the development and clarification of federal 

constitutional standards. This is especially so for issues not likely to 

arise outside the context of § 1983 damages and qualified immunity, 

such as in injunction actions and criminal prosecutions.1328 In addition, 

there are cases in which it ‘”may be difficult to decide whether a right 

is clearly established without deciding precisely what the existing con-
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159

stitutional right happens to be.’”1329 Pearson acknowledged that Saucier’s methodology “is often beneficial,”1330 and that making the qualified immunity protocol discretionary rather than mandatory “does 

not prevent the lower courts from following the Saucier procedure; it 

simply recognizes that those courts should have the discretion to decide 

whether the procedure is worthwhile in particular cases.”1331

However, adherence to the Saucier methodology does not always 

make sense. There are cases in which it is apparent that the pertinent 

federal law did not establish a violation of plaintiff’s clearly established 

federal rights. In these instances, absent some special consideration, a 

lower federal court should not have to struggle with the constitutional merits when it can easily conclude that, regardless of the constitutional merits, the defendant will be protected from liability by qualified immunity because the federal law was not clearly established.1332 In 

these circumstances resolution of the merits of the constitutional claim 

would have no effect on the ultimate outcome of the case because, in 

any event, defendant will be protected by qualified immunity.1333

Pearson detailed several circumstances in which it may make sense 

for a federal court to bypass the “constitutional merits” step and proceed directly to the “clearly established” law issue:

1. where “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a 

right”;1334

2. where “the constitutional question is so factbound that the decision provides little guidance for future cases”;1335

3. where it is likely that the constitutional question will soon be decided by a higher court or by an en banc court;1336

4. where the constitutional decision rests “on an uncertain interpretation of state law,” rendering the constitutional ruling “of doubtful precedential importance”;1337 and 

5. where “qualified immunity is asserted at the pleading stage, [and] 

the precise factual basis for the plaintiff’s claim . . . may be hard 

to identify.”1338

Furthermore, as a general proposition, following the Saucier twostep procedure runs counter to the Ashwander v. TVA1339 principle of 

judicial self-restraint that federal courts decide federal constitutional 
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issues only when necessary, that is, as a last resort rather than as a first 

resort.1340

V. Appeals

When a district court denies qualified immunity on a summary judgment 

motion, the defendant may take an immediate appeal from the denial of 

qualified immunity to the court of appeals if the appeal can be decided as 

a matter of law.1341 However, it is not always clear whether a qualified immunity appeal presents an issue of law or fact. If the district court denies a 

defendant’s summary judgment qualified immunity motion because there 

are disputed issues of material fact, the defendant may not take an immediate appeal that contests the district court’s factual determinations;1342

however, under such circumstances, the defendant may take an immediate 

appeal if the appeal can be decided as a matter of law. Thus, an immediate 

qualified immunity appeal lies when the appellant:

1. contests the materiality of a disputed issue of fact found by the district court, because this is a question of law; or

2. claims entitlement to qualified immunity even on the basis of the 

facts alleged by the plaintiff, because the qualified immunity can be 

decided as a matter of law.

Furthermore, an immediate appeal may be taken from the denial of qualified immunity raised on a motion to dismiss, because in this circumstance 

the appeal presents an issue of law, namely whether, assuming the facts 

alleged by the plaintiff to be true, the defendant is entitled to qualified immunity.1343 The courts of appeals at times find that they have jurisdiction 

over parts of an immunity appeal raising questions of law, though not over 

other parts raising questions of fact.

A § 1983 defendant may be entitled to take multiple interlocutory qualified immunity appeals. In Behrens v. Pelletier,

1344 the Supreme Court held 

that the defendant may take an immediate appeal from the denial of qualified immunity raised on a motion to dismiss and, if still unsuccessful, from 

a subsequent denial of qualified immunity raised on summary judgment, 

provided the summary judgment immunity appeal can be decided as a 

matter of law.1345

Qualified immunity appeals are very costly to civil rights plaintiffs in 

terms of litigation resources and delay of litigation. Qualified immuni-
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ty appeals normally stay proceedings on the § 1983 claim in the district 

court.1346 However, the plaintiff may ask the district court to certify that 

an interlocutory qualified immunity appeal is frivolous.1347 “This practice 

. . . enables the district court to retain jurisdiction pending summary disposition of the appeal and thereby minimizes disruption of the ongoing 

proceedings.”1348

In Ortiz v. Jordan,

1349 the Supreme Court held that, after trial, the defending officers may not appeal from the district court’s denial of the their 

summary judgment qualified immunity motion, because:

Once the case proceeds to trial, the full [trial] record developed in court 

supersedes the record existing at the time of the summary judgment 

motion. A qualified immunity defense . . . does not vanish when a district court [rejects the summary judgment motion. The immunity defense] remains available to the defending officials at trial; but at that 

stage, the defense must be evaluated in light of the character and quality of the evidence received in court.1350

“After trial, if defendants continue to urge qualified immunity, the decisive 

question, ordinarily, is whether the evidence favoring the party seeking relief is legally sufficient to overcome the defense.”1351 To preserve for appeal 

the defendant’s right to qualified immunity on the basis of the trial record, 

the defendant must make a post-verdict motion for judgment as a matter 

of law under Federal Rule of Civil Procedure 50(b) on the ground that the 

evidence was not legally sufficient to sustain the verdict. The defendants in 

Ortiz failed to make such a motion.

The Court did not decide whether the result would be different if the 

qualified immunity defense presented a purely legal issue with respect to 

undisputed facts.
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17. Exhaustion of State Remedies

Preiser-Heck Doctrine, Notice of Claim, and Ripeness

I. State Judicial Remedies: Parratt-Hudson Doctrine

State judicial remedies generally need not be exhausted in order to bring a 

§ 1983 action. “The federal [§ 1983] remedy is supplementary to the state 

remedy, and the latter need not be first sought and refused before the federal one is invoked.”1352 When a § 1983 plaintiff has pursued a state judicial 

remedy, or was an involuntary state court litigant (such as a criminal defendant), the state court judgment may be entitled to preclusive effect in 

the § 1983 action.1353

Under the Parratt-Hudson1354 doctrine, when a deprivation of liberty 

or property results from “random and unauthorized” official conduct, the 

availability of an adequate postdeprivation judicial remedy satisfies procedural due process.1355 The Parratt-Hudson doctrine does not apply when 

the deprivation results from enforcement of the established state procedure,1356 or from actions by officials with authority to both cause deprivations and provide predeprivation process.1357 Parratt-Hudson is not an 

exhaustion doctrine; when applicable, it results in rejection of procedural 

due process claims on the merits, not for failure to exhaust. Even when the 

Parratt-Hudson doctrine does not apply, a § 1983 plaintiff who asserts a 

procedural due process claim has the burden of showing the inadequacy of 

the available state remedies.

In District Attorney’s Office v. Osborne,

1358 the § 1983 complaint asserted 

substantive and procedural due process rights to postconviction access to 

evidence for DNA testing. The Supreme Court held that the plaintiff was 

not required to “exhaust state-law remedies”; but to prevail on his procedural due process claim, he had the “burden to demonstrate the inadequacy of the state-law procedures available to him in state postconviction 

relief. These procedures are adequate on their face, and without trying 

them, Osborne can hardly complain that they do not work in practice.”1359

A postdeprivation remedy may be adequate under Parratt-Hudson even if 

it does not afford all of the relief available under § 1983, such as an award 

of attorneys’ fees.1360
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II. Preiser, Heck, and Beyond

In Preiser v. Rodriguez,

1361 the Supreme Court held that a prisoner’s constitutional claim challenging the fact or duration of confinement and seeking immediate or speedier release must be brought under federal habeas 

corpus, following exhaustion of state remedies, even though such a claim 

may come within the literal terms of § 1983. In these circumstances, federal 

habeas corpus is the exclusive remedy. The Court reasoned that the more 

specific federal habeas remedy should prevail over the more general § 1983 

remedy, and that prisoners should not be allowed to evade the federal habeas exhaustion requirement by filing the claim under § 1983.

 A. Procedural Due Process and Conditions of Confinement

The decision in Preiser, however, does not preclude prisoners from utilizing § 1983 either to enforce procedural due process protections or 

to challenge the conditions of their confinement. In Wilkinson v. Dotson,

1362 the Supreme Court held that the prisoners’ challenge to parole 

release procedures could be asserted under § 1983 because the prisoners sought only enhanced process; they did not challenge either the fact 

or length of their confinement, and did not seek immediate or speedier 

release. If successful, the plaintiffs, at most, could obtain new parole 

release hearings. In Nelson v. Campbell,

1363 the Court held that a death 

row inmate may assert a § 1983 challenge to the constitutionality of a 

medical procedure that would have been a precursor to his lethal injection. The Court viewed the claim as a “condition of confinement” 

medical treatment claim.1364 It did not decide whether a challenge to the 

method of execution itself, e.g., lethal injection, may be asserted under 

§ 1983.1365

B. Claims for Damages (Heck v. Humphrey)

In Heck v. Humphrey,

1366 the Supreme Court held that a plaintiff who 

seeks damages on a § 1983 claim that necessarily implicates the constitutionality of the claimant’s state conviction or sentence must demonstrate that the conviction or sentence has been overturned, either judicially or by executive order. Strictly speaking, the Heck doctrine is not 

an exhaustion doctrine; in fact, it is more onerous than an exhaustion 

requirement because, unless and until the conviction is overturned, the 

§ 1983 claim is not cognizable. However, sometimes the Heck doctrine 
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can work in a § 1983 plaintiff’s favor by delaying the accrual of the class 

for relief for statute of limitations purposes.

In Nelson v. Campbell,

1367 the Supreme Court said that it was

careful in Heck to stress the importance of the term “necessarily.” 

For instance, we acknowledged that an inmate could bring a challenge to the lawfulness of a search pursuant to § 1983 in the first 

instance even if the search revealed evidence used to convict the 

inmate at trial, because success on the merits would not “necessarily 

imply that plaintiff’s conviction was unlawful.”1368

Lower courts sometimes have a difficult time determining whether a 

§ 1983 claim “necessarily implicates” the validity of a conviction. For 

example, it is not always clear whether, under the Heck doctrine, a 

§ 1983 excessive force claim necessarily implicates a conviction for such 

crimes as resisting arrest, assault or battery of an officer, or obstructing 

an officer. Resolution of the issue requires a careful analysis of the specific facts alleged in the § 1983 excessive force complaint in relation to 

the specific crime for which the plaintiff was convicted.1369

C. Skinner v. Switzer

In Skinner v. Switzer,

1370 the Supreme Court, relying heavily on Wilkinson v. Dotson,

1371 held that the Heck doctrine did not bar a convicted 

state prisoner from asserting a procedural due process right of access to 

evidence for the purpose of postconviction DNA testing under § 1983. 

Such a claim is not required to be asserted in a habeas corpus proceeding.

The Court reasoned that similar to the procedural due process 

claim in Wilkinson, “a postconviction [procedural due process] claim 

for DNA testing is properly pursued in a § 1983 action” because “[s]uccess in the suit gains for the prisoner only access to the DNA evidence, 

which may prove exculpatory, inculpatory, or inconclusive. In no event 

will a judgment that simply orders DNA tests ‘necessarily impl[y] the 

unlawfulness of the State’s custody.’”1372 Although success on the claim 

for DNA testing might further Skinner’s ultimate aim of overturning 

his conviction, there is no authority that “habeas corpus [i]s the sole 

remedy, or even an available one, whe[n] the relief sought” will not lead 

to immediate or speedier release from custody.1373
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D. Heck and Accrual of Claim

The Heck doctrine has implications for the statute of limitations, because a § 1983 claim that necessarily implicates the validity of a conviction or sentence is not cognizable and thus does not accrue until the 

conviction has been overturned. Over time, Heck has become a more 

important precedent than Preiser and is asserted in large numbers of 

§ 1983 actions.

In Wallace v. Kato,

1374 the Supreme Court indicated that whether a 

§ 1983 claim attacks the validity of a conviction within the meaning of 

the Heck doctrine should be evaluated as of the date the § 1983 claim 

accrued. In Wallace, the plaintiff’s § 1983 challenge to his warrantless 

arrest accrued on the date he was bound over for trial, which was long 

before he was convicted. On that date, there was obviously no conviction that could be attacked. In other words, as the Court expressly 

acknowledged, the Heck doctrine does not encompass future convictions. The Court said that the “impracticability” of applying Heck to 

future convictions was “obvious,” i.e., it would invite speculation about 

whether there will be a conviction and, if so, whether the federal § 1983 

action would impugn the conviction.1375

E. Prison Disciplinary Sanctions

In Edwards v. Balisok,

1376 the Supreme Court held that the Preiser-Heck 

doctrine applies to prisoner procedural due process claims that necessarily implicate the validity of a prison disciplinary sanction. The 

plaintiff in Edwards alleged that he was denied an opportunity to defend the disciplinary charges because of the hearing officer’s deceit and 

bias. The Court held that this claim was subject to Heck because the 

alleged procedural defect, if established, would necessarily imply the 

invalidity of the sanctioned deprivation of good-time credits.1377 On the 

other hand, in Muhammad v. Close,

1378 the Court held that a prisoner’s 

challenge to some aspect of a prison disciplinary proceeding that does 

not implicate either the finding of “guilt” or the disciplinary sanction is 

not governed by the Heck doctrine. The prisoner in Muhammad challenged, under § 1983, his prehearing lockup, but did not challenge his 

disciplinary conviction or sanction. Because the § 1983 complaint did 

not contest either the disciplinary conviction or sanction, it was not 

subject to Heck.

1379
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F. When Habeas Is Not Available

In Spencer v. Kemna,

1380 five justices in concurring and dissenting opinions took the position that the Heck doctrine does not apply to § 1983 

claimants who are not in state custody and who therefore cannot seek 

relief in a federal habeas corpus proceeding. The lower courts are in 

conflict over whether the positions of these five justices should be 

viewed as binding precedent.1381

III. State Administrative Remedies; PLRA

A. Plaintiffs Generally Not Required to Exhaust State Administrative

Remedies

In Patsy v. Board of Regents,

1382 the Supreme Court held that state administrative remedies need not be exhausted in order to bring suit under § 1983. The Court reasoned that individuals should not have to 

seek relief from the state and local authorities against whom § 1983 

guarantees immediate judicial access. As with state judicial remedies, a 

§ 1983 plaintiff who asserts a procedural due process claim may have 

to pursue state administrative remedies in order to demonstrate their 

inadequacy.1383

B. PLRA Exhaustion Requirement

The Prison Litigation Reform Act (PLRA) requires prisoners to exhaust 

“available” administrative remedies before bringing suit to contest the 

conditions of their confinement.1384 The PLRA exhaustion requirement 

has generated a tremendous amount of decisional law.

In Booth v. Churner,

1385 the Supreme Court held that prisoners who 

seek money damages judicially must satisfy the PLRA exhaustion requirement even when the available administrative procedures do not 

afford a monetary remedy, so long as some type of relief is available 

administratively. In Porter v. Nussle,

1386 the Court held that prisoner excessive force claims are challenges to conditions of confinement, and 

thus subject to the PLRA exhaustion requirement. It found “that the 

PLRA’s exhaustion requirement applies to all inmate suits about prison 

life, whether they involve general circumstances or particular episodes, 

and whether they allege excessive force or some other wrong.”1387

In Woodford v. Ngo,

1388 the Supreme Court held that the PLRA requirement is not satisfied by the filing of an untimely or otherwise pro-
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167

cedurally defective administrative grievance. Rather, the PLRA requires 

“proper exhaustion,” i.e., the prisoner’s grievance must be in compliance with the agency’s deadlines and other procedural rules. The Court 

left open the possibility of an exception for cases in which “prisons 

might create procedural requirements for the purpose of tripping up 

all but the most skillful prisoners.”1389 It also noted that “the PLRA exhaustion requirement is not jurisdictional, and thus allow[s] a district 

court to dismiss plainly meritless claims without first addressing what 

may be a much more complex question, namely, whether the prisoner 

did in fact properly exhaust available administrative remedies.”1390

In Jones v. Bock,

1391 the Supreme Court held that the prisoner is not 

required to plead compliance with the PLRA exhaustion requirement. 

Rather, failure to exhaust is an affirmative defense. The Court also held 

that exhaustion is not per se inadequate merely because a prison official 

sued in the § 1983 action was not named in the administrative grievance. It acknowledged, however, that under Woodford, prisoners must 

comply with the grievance procedures, and that a grievance procedure 

may require the prisoner to name a particular official. “The level of detail necessary in a grievance to comply with the grievance procedures 

will vary from system to system and claim to claim, but it is the prison’s 

requirements, and not the PLRA, that define the boundaries of proper 

exhaustion.”1392 Finally, the Court held that the PLRA does not require 

dismissal of the entire action when “the prisoner has failed to exhaust 

some, but not all of the claims asserted in the complaint.”1393 A “total 

exhaustion” rule could have the unwholesome effect of inmates filing 

more separate lawsuits “to avoid the possibility of an unexhausted claim 

tainting the others. That would certainly not comport with the purpose 

of the PLRA to reduce the quantity of inmate suits.”1394 Factual issues 

pertaining to the PLRA exhaustion requirement are for the court.1395

When a prisoner’s § 1983 complaint is dismissed for failure to satisfy 

the PLRA exhaustion requirement, dismissal should almost always be 

without prejudice so that it does not bar reinstatement of the suit after 

exhaustion is satisfied.1396

IV. Notice of Claim

In Felder v. Casey,

1397 the Supreme Court held that state notice-of-claim 

rules may not be applied to § 1983 claims. Because a notice-of-claim rule is 
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not one of those universally recognized rules necessary for fair procedure, 

like a limitation defense or a survivorship rule, the absence of a federal 

notice-of-claim rule is not a “deficiency” in the federal law requiring resort 

to state law under 42 U.S.C. § 1988(a). Furthermore, the Court found that 

state notice-of-claim rules unduly burden and discriminate against civil rights claimants, and impose an exhaustion requirement incompatible 

with the Patsy1398 rule that a § 1983 plaintiff is not required to exhaust state 

administrative remedies. However, it acknowledged that state notice-ofclaim rules may be applied to state law claims that are supplemental to 

§ 1983 claims.

V. Ripeness

In Williamson County Regional Planning Commission v. Hamilton Bank,

1399

the Supreme Court imposed stringent two-prong ripeness requirements 

for § 1983 regulatory takings claims in which the plaintiff claims that her 

property was taken without just compensation. First, the plaintiff must 

obtain a final determination from land use authorities concerning the permissible use of the property. This requirement is satisfied when the permissible uses of the property are known to a reasonable degree of certainty.1400 Second, the plaintiff must obtain a final determination from the state 

court of the right to just compensation.1401 In the process of satisfying the 

second requirement, normal preclusion principles will apply in the federal 

§ 1983 action.1402 The interplay of ripeness and preclusion is a potentially 

lethal “catch-22” for § 1983 takings claimants.1403
169

18. Preclusion Defenses

I. State Court Judgments

Under the full-faith and credit statute, 28 U.S.C. § 1738, federal courts in 

§ 1983 actions must give state court judgments the same preclusive effect 

they would receive in state court under state law.1404 This principle controls 

so long as the federal litigant against whom preclusion is asserted had a full 

and fair opportunity to litigate his federal claims in state court. A full and 

fair opportunity to be heard requires only that state judicial procedures 

meet minimal procedural due process requirements.1405

The full-faith and credit statute governs even with respect to federal 

claims asserted by federal court plaintiffs who were involuntary state court 

litigants, like criminal defendants,1406 and takings claimants who were required to pursue a state court just-compensation remedy in order to satisfy 

ripeness requirements.1407 Furthermore, § 1738 governs even if the federal 

court § 1983 claimant has no alternative federal remedy, as when, under 

Stone v. Powell,

1408 a Fourth Amendment claim is not assertable in a federal habeas corpus proceeding.1409 Section 1738 applies to claims that could 

have been, but were not, litigated in the state court proceeding, if state 

preclusion law encompasses the doctrine of claim preclusion.1410 The Supreme Court has directed the federal courts not to carve out exceptions to 

preclusion required by § 1738 in § 1983 actions, even when there may be 

good policy reasons for doing so.1411

II. Administrative Res Judicata

In University of Tennessee v. Elliott,

1412 the Supreme Court held that an agency’s fact findings may preclude relitigation of the facts in a § 1983 action. 

“[W]hen a state agency ‘acting in a judicial capacity . . . resolves disputed 

issues of fact properly before it which the parties have had an adequate 

opportunity to litigate,’ . . . federal courts must give the agency’s fact finding the same preclusive effect to which it would be entitled in the State’s 

courts.”1413 The decision in Elliott was not based on the full-faith and credit 

statute, but on federal common-law preclusion principles.
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III. Arbitration Decisions

In McDonald v. City of West Branch,

1414 the Supreme Court held that arbitration decisions are not entitled to preclusive effect in § 1983 actions. The 

Court found that an arbitration proceeding is not a judicial proceeding 

within the meaning of the full-faith and credit statute. Furthermore, Congress intended § 1983 to be judicially enforced, and arbitration is not an 

adequate substitute for judicial enforcement.

The Supreme Court has interpreted McDonald narrowly. In 14 Penn 

Plaza LLC v. Pyett,

1415 it upheld the enforceability of a collective bargaining 

agreement requiring union members to arbitrate their claims under the 

Age Discrimination in Employment Act. In so doing, it read McDonald as 

holding that an arbitration decision that was not appealed was not entitled 

to preclusive effect in a § 1983 action and, further, that “McDonald hinged 

on the scope of the collective-bargaining agreement and the arbitrator’s 

parallel mandate.”1416
171

19. Statute of Limitations

I. Limitations Period

There is no federal statute of limitations for § 1983 claims. When federal 

law is silent on an issue in a federal court § 1983 action, 42 U.S.C. § 1988(a) 

requires the federal court to borrow state law on the issue, provided it is 

consistent with the policies underlying § 1983.1417 Therefore, § 1988(a) requires federal courts to borrow a state’s limitations period. In Wilson v. 

Garcia,

1418 the Supreme Court held that the federal court should borrow 

the state’s general limitations period for personal injury actions, as long 

as the period is not inconsistent with the policies of § 1983. This means 

that the governing limitations period for federal § 1983 actions may differ from state to state. A state’s unduly short limitations period, e.g., six 

months, is inconsistent with the policies of § 1983.1419 “[W]here state law 

provides multiple statutes of limitations for personal injury actions, courts 

. . . should borrow the general or residual statute for personal injury actions.”1420

II. Relation Back

Whether an amended complaint “relates back” to the filing of the original complaint for limitations purposes is governed by Federal Rule of 

Civil Procedure 15(c). Under Rule 15(c), an amended complaint against 

the same defendants named in the original complaint will relate back to 

the filing of the original complaint if the claim in the amended complaint 

arose out of the same conduct or transaction in the original complaint.1421

However, if an amended complaint “changes” the party defendant, (1) the 

amended complaint will relate back to the filing of the original complaint 

if the amended complaint arose out of the same conduct as the original 

complaint; (2) the newly named defendant, within the period for service 

of the summons and complaint, received notice of the institution of the 

action that will avoid prejudice in defending the action; and (3) the newly named defendant “knew or should have known that, but for a mistake 

concerning the identity of the proper party, the action would have been 

brought against the party.”1422 Rule 15(c) provides that when, as in § 1983 

actions, state law governs the limitations period, a state law “relation back” 
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doctrine that is more forgiving than Rule 15(c)’s “relation back” doctrine 

will govern the issue.1423

In Krupski v. Costa Cruciere,

1424 a non-§ 1983 case, the Supreme Court 

rendered an important decision interpreting the Rule 15(c) requirement 

for “relation back” purposes. The Court held that relation back under Rule 

15(c) depends on whether the newly added defendant knew or should have 

known that, but for the plaintiff’s mistake, the action would have been 

brought against it originally.1425 The lower court erred in holding that Rule 

15(c) was not satisfied because the plaintiff knew, or should have known, 

of the proper defendant before filing her original complaint; and the plaintiff delayed in amending the complaint. The Court held “that relation back 

under Rule 15(c)(1)(C) depends on what the [newly named defendant] 

knew or should have known, not on the amending [plaintiff’s] knowledge 

or its timeliness in seeking to amend the pleading.”1426

Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or 

should have known during the Rule 4(m) period [for service of the 

summons and complaint], not what the plaintiff knew or should have 

known at the time of filing her original complaint. Information in 

the plaintiff’s possession is relevant only if it bears on the defendant’s 

understanding of whether the plaintiff made a mistake regarding the 

proper party’s identity. For purposes of that inquiry, it would be error 

to conflate knowledge of a party’s existence with the absence of mistake.1427

The Court said that a “mistake” is an “error, misconception, or misunderstanding; an erroneous belief.”1428 The fact that “a plaintiff knows of a 

party’s existence does not preclude her from making a mistake with respect 

to that party’s identity.”1429 For example, the plaintiff may have known of 

A’s identity, but was mistaken factually of her role in the incident in question, or whether A was legally responsible for the incident in question. Nor 

is the reasonableness of the plaintiff’s mistake an issue under Rule 15.1430

The Court further ruled that the fact that the plaintiff unreasonably delayed in filing the amended complaint is irrelevant to the relation back 

inquiry. Therefore, the plaintiffs’ lack of diligence cannot justify denial of 

relation back.

Most federal courts hold that an amendment of a complaint substituting a John Doe defendant with the names of the actual officers does not 

relate back to the filing of the original complaint.1431 The rationale of these 
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173

decisions is that lack of knowledge about the names of the alleged wrongdoers/defendants is not a “mistake” within the meaning of Rule 15(c).1432

III. Accrual

Unlike the selection of the limitations period, which is determined by reference to state law, the accrual of a § 1983 claim is a question of federal 

law.1433 Section 1983 claims generally accrue when the plaintiff knows or 

has reason to know of the injury, which is the basis of her claim.1434 In 

applying this standard, courts seek to determine “what event should have 

alerted the typical lay person to protect his or her rights.”1435 In Wallace 

v. Kato,

1436 the Supreme Court stated that a § 1983 claim accrues when 

the plaintiff has “a complete and present cause of action.”1437 It is unclear 

whether this is the same as the “know or should know of the injury” standard. Post-Wallace, the courts of appeals have continued to apply the “knew 

or reasonably should have known” accrual rule.1438 In Heck v. Humphrey,

1439

the Court held that a § 1983 “cause of action for damages attributable to an 

unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.”1440

The determination of the proper accrual date is not always obvious, 

especially when the Heck doctrine may be implicated. In Wallace, the Court 

held that the § 1983 plaintiff’s Fourth Amendment challenge to his warrantless arrest accrued when legal process issued, i.e., when he appeared 

before the examining magistrate judge and was bound over for trial.

Because there were a number of possible accrual dates in Wallace, it is 

necessary to pay especially close attention to the sequence of events in that 

case. In January 1994, the Chicago police questioned Andre Wallace, then 

fifteen years of age, about a recent homicide. After an all-night interrogation lasting into the early morning hours, Wallace waived his Miranda

rights and confessed to the murder. He was arrested (without an arrest warrant) sometime that day. Subsequently—we are not told exactly when—he 

appeared before the examining magistrate judge and was bound over for 

trial. If the state wants to hold a suspect who was subject to a warrantless 

arrest, the Fourth Amendment requires a probable cause determination 

from a magistrate judge within a reasonable time, and forty-eight hours 

after the arrest is a presumptively reasonable time.1441

Prior to trial, Wallace’s defense attorney unsuccessfully sought to suppress Wallace’s confession and other statements he gave the police. Wallace 
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was convicted of murder. But in 2001, the conviction was reversed on appeal on the ground that Wallace was arrested without probable cause, and 

his incriminating statements were the product of the illegal arrest. In 2001, 

the state appeals court ordered a new trial, but the next year the prosecutors dropped the charges against Wallace, and he was released.

In 2003, seven years after his arrest but only a year after the charges were 

dropped, Wallace filed a federal court § 1983 action asserting, inter alia, a 

claim for damages against several Chicago police officers based on his illegal arrest. The parties agreed that the governing limitations period was the 

Illinois two-year personal injury period. But they sharply disagreed over 

when the limitations period began to run, i.e., when Wallace’s § 1983 claim 

accrued. There were several possible accrual dates:

1. The date Wallace was arrested in 1994. This would render the § 1983 

claim untimely.

2. The date Wallace appeared before the magistrate judge. This, too, 

would render the § 1983 action untimely because more than two 

years elapsed between that date and the filing of the § 1983 suit, 

“even leaving out of the count the period before [Wallace] reached 

his majority.”1442

3. The date (August 31, 2001) the appellate court reversed Wallace’s 

conviction and remanded for a new trial, which would render the 

§ 1983 claim timely.

4. The date (April 10, 2002) when prosecutors dropped the charges 

against Wallace, which also would have rendered the § 1983 suit 

timely.

The Court held that Wallace’s § 1983 wrongful arrest claim accrued 

on the date he appeared before the magistrate judge and was bound over 

for trial, rendering the § 1983 action untimely. Although the § 1983 claim 

was premised upon a violation of Fourth Amendment rights, the Supreme 

Court relied heavily on common-law concepts governing false arrest, false 

imprisonment, and malicious prosecution to determine the proper accrual 

date.

The Court said that the plaintiff “could have filed suit as soon as the alleged wrongful arrest occurred, subjecting him to the harm of involuntary 

detention.”1443 Since the plaintiff had a “complete” cause of action on the 

date of his arrest, the limitations period “would normally commence to 
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run from that date.”1444 There was a “refinement,” however, stemming from 

the common law’s treatment of false arrest and false imprisonment. These 

two torts overlap in the sense that false arrest is a “species” of false imprisonment; every confinement is an imprisonment. The Court found that the 

closest common-law analogy to Wallace’s § 1983 warrantless arrest/Fourth 

Amendment claim was false imprisonment based on “detention without legal process.”1445 The common-law rule is that such a claim for relief accrues 

when the false imprisonment comes to an end. “Since false imprisonment 

consists of detention without legal process, a false imprisonment claim accrues when the victim becomes held pursuant to such process—when he 

is bound over by a magistrate or arraigned on charges.”1446 The claim for 

relief accrues at this time even though the claim could have been filed at 

the earlier time of the arrest. Furthermore, the claim accrues at this time 

even “assuming . . . that all damages for detention pursuant to legal process 

could be regarded as consequential damages attributable to the unlawful 

arrest. . . .”1447

Under common law, after legal process is issued, any damages for unlawful detention would be based not on false arrest but on malicious prosecution. Malicious prosecution “remedies detention accompanied, not by 

absence of legal process, but by wrongful institution of legal process.”1448 The 

Court rejected Wallace’s argument that his false imprisonment ended and 

his claim accrued when the state dropped the criminal charges against him 

and he was released from custody. Rather, the false imprisonment ended 

much earlier, when legal process was issued against Wallace, i.e., when he 

appeared before the examining magistrate judge. Holding firm to the common-law rule, the Court also rejected Wallace’s argument that his release 

from custody should be the proper accrual date because, he argued, the 

unconstitutional arrest “set the wheels in motion,” leading to the coerced 

confession, conviction, and incarceration.

Wallace argued, again in vain, that under the Heck doctrine his § 1983 

claim could not accrue until the state dropped the criminal charges against 

him. The Supreme Court found the Heck doctrine inapplicable because 

on the date Wallace was held pursuant to legal process, there was no criminal conviction that the § 1983 cause of action could impugn. Moreover, 

the Court held that the Heck doctrine does not extend to possible future 

convictions. The “impracticability” of applying Heck to future convictions 

is “obvious,” namely, it would invite speculation whether there will be a 
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conviction and, if so, whether the pending federal § 1983 action would 

impugn the conviction.1449

When, as in Wallace, there is more than one plausible accrual date, the 

Supreme Court appears inclined to pick the earlier date.1450 This has also 

been true in § 1983 public employment cases. In employment termination 

cases, for example, the Supreme Court held that the § 1983 claim accrues 

when the employee is notified of the termination, not when the termination became effective.1451

Federal courts have generally been reluctant to apply what is known 

as the “continuing violation” doctrine in § 1983 actions.1452 In National 

Railroad Passengers Corp. v. Morgan,

1453 a Title VII action, the Supreme 

Court held that a discrete act, such as employment termination, failure 

to promote, denial of transfer, refusal to hire, or a retaliatory adverse employment decision, is a separate unlawful employment practice for accrual 

purposes. The Court ruled that the continuing violation doctrine does not 

apply to these discrete acts merely because they are plausibly or sufficiently 

related to each other. It distinguished these claims from racial or sexual “hostile environment” claims, which involve repeated conduct and the 

cumulative effect of continued acts. These claims are not time-barred if 

the acts are part of the same unlawful employment practice, and at least 

one act falls within the governing limitations period. The courts of appeals 

have applied Morgan to § 1983 actions.1454

IV. Tolling

In Wallace v. Kato,

1455 the Supreme Court stated that in § 1983 suits it has 

“generally referred to state law for tolling rules . . . .”1456 The Court in Wallace found that Illinois tolling law did not provide for tolling during the 

pendency of the criminal proceeding. It also rejected the dissent’s position 

that the limitations period should be equitably tolled during the pendency 

of the criminal proceedings, and during any period in which the criminal defendant challenges the conviction in state court on the same basis 

as that underlying the § 1983 suit.1457 The majority reminded the dissent 

that “[e]quitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.”1458 In other 

words, it is fairly common for a § 1983 action to relate to pending criminal 

proceedings and the mere fact that it does will not justify application of 

equitable tolling.
177

20. Survivorship and Wrongful Death

I. Survivorship

Survivorship of § 1983 claims is not covered by federal law. In Robertson 

v. Wegmann,

1459 the Supreme Court held that to remedy this deficiency, 42 

U.S.C. § 1988(a) requires federal courts to borrow state survivorship law, 

so long as it is not inconsistent with the policies of § 1983.1460 The Court 

identified the policies underlying § 1983 as including “compensation of 

persons injured by deprivation of federal rights and prevention of abuses 

of power by those acting under color of state law.”1461 It ruled, however, that 

the mere fact that the particular § 1983 claim abates under state law does 

not mean that the state law is inconsistent with the policies of § 1983. Rather, whether state survivorship law is compatible with the policies of § 1983 

depends on whether that state law is generally hospitable to the survival of 

§ 1983 claims.1462 The Court held that the Louisiana law was not inconsistent with the policies of § 1983 despite causing the particular § 1983 claim 

to abate.1463 However, it indicated that the result might be different if the 

“deprivation of federal right caused death.”1464

II. Wrongful Death

The Supreme Court has not resolved whether a wrongful death claim may 

be brought under § 1983. There is considerable disagreement on this issue 

in the lower courts.1465 Some courts have viewed the absence of a federal § 1983 wrongful death policy as a deficiency in federal law and, under 

§ 1988(a), have borrowed state wrongful death law.1466 Other courts have 

inquired whether the defendant’s conduct, which caused a death, violated 

the constitutionally protected rights of a surviving relative.1467 There is also 

scholarship supporting the argument that § 1983 itself authorizes a wrongful death remedy.1468 Of course, the § 1983 plaintiff may attempt to assert 

a state law wrongful death claim under the federal court’s supplemental 

jurisdiction.1469
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21. Abstention Doctrines

Even though a federal court has subject-matter jurisdiction over a § 1983 

action, it may decline to exercise that jurisdiction if the case falls within 

one or more of the abstention doctrines. These abstention doctrines are intended to apply in relatively narrow circumstances. The Supreme Court has 

described a federal court’s obligation to adjudicate claims properly within its jurisdiction as “virtually unflagging.”1470 Accordingly, “[a]bstention 

from the exercise of federal jurisdiction is the exception, not the rule,”1471

and the Court has limited the circumstances appropriate for abstention.

The major abstention doctrines in § 1983 actions are Pullman,

1472

Younger,

1473 Colorado River,1474 and Burford.1475 The domestic relations doctrine has been raised in some § 1983 actions, but much less frequently 

than the other abstention doctrines. The Tax Injunction Act normally bars 

federal § 1983 actions contesting state and local tax policies.1476

I. Pullman Abstention; State Certification Procedure

Under Pullman abstention, named after Railroad Commission of Texas v. 

Pullman Co.,

1477 a federal court may abstain when the contested state law is 

ambiguous and susceptible of a state court interpretation that may avoid 

or modify the federal constitutional issue. The Supreme Court said that 

“when a federal constitutional claim is premised on an unsettled question 

of state law, the federal court should stay its hand in order to provide the 

state courts an opportunity to settle the underlying state-law question and 

thus avoid the possibility of unnecessarily deciding a constitutional question.”1478 Pullman abstention is applicable only when the issue of state law 

is unsettled, and is “sufficiently likely” to be subject to an interpretation 

that will avoid or modify the federal constitutional question.1479 When a 

federal court invokes Pullman abstention, the § 1983 claimant must seek 

a state court interpretation of the state law from the highest court in the 

state. In some cases this may be accomplished expeditiously pursuant to a 

state certification procedure.

In Arizonans for Official English v. Arizona,

1480 the Supreme Court suggested that, where available, a state certification procedure should be used 

instead of Pullman abstention. State certification procedures allow federal 

courts to directly certify unsettled, dispositive questions of state law to the 
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highest court of the state for authoritative construction. The Court explained:

Certification today covers territory once dominated by a deferral device 

called “Pullman abstention”. . . . Designed to avoid federal-court error 

in deciding state-law questions antecedent to federal constitutional issues, the Pullman mechanism remitted parties to the state courts for 

adjudication of the unsettled state-law issues. If settlement of the statelaw question did not prove dispositive of the case, the parties could return to the federal court for decision of the federal issues. Attractive in 

theory because it placed state-law questions in courts equipped to rule 

authoritatively on them, Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state 

court system before any resumption of proceedings in federal court ... 

Certification procedure, in contrast, allows a federal court faced with 

a novel state-law question to put the question directly to the State’s 

highest court, reducing the delay, cutting the cost, and increasing the 

assurance of gaining an authoritative response.1481

After completion of state court proceedings, the § 1983 claimant may 

return to federal court unless she has voluntarily litigated her federal claims 

fully in state court.1482 The plaintiff may make an “England reservation” on 

the state court record of her right to litigate the federal claim in federal 

court.1483

In England v. Louisiana State Board of Medical Examiners,

1484 the Court 

set out the procedures litigants must follow when Pullman abstention is 

invoked. A party has the right to return to the federal district court for a 

final determination of its federal claim once the party has obtained the authoritative state court construction of the state law in question.1485 A party 

can, but need not, expressly reserve this right, and in no event will the right 

be denied, “unless it clearly appears that he voluntarily . . . fully litigated his 

federal claim in the state courts.”1486 A party may elect to forgo the right 

to return to federal court by choosing to litigate the federal constitutional 

claim in state court.1487

Under Pullman abstention, a district court generally retains jurisdiction 

over the case, but stays its proceedings while the state court adjudicates the 

issue of state law. Thus, Pullman abstention does not “involve the abdication of jurisdiction, but only the postponement of its exercise.”1488
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II. Younger Abstention

The most frequently invoked abstention doctrine in § 1983 actions is 

Younger abstention, named after the leading case of Younger v. Harris.

1489

Younger abstention generally prohibits federal courts from granting relief 

that interferes with pending state criminal prosecutions, or with pending state civil proceedings that implicate important state interests.1490 The 

Younger doctrine “espouse[s] a strong federal policy against federal-court 

interference with pending state judicial proceedings.”1491 It is based primarily on principles of federalism that require federal court non-interference 

with state judicial proceedings.

In Younger, the Supreme Court held that a federal district court generally should not enjoin a pending state criminal prosecution. In Samuels v. 

Mackell,1492 the Court broadened Younger’s reach, holding that the doctrine 

encompasses claims for declaratory relief. In federal cases in which a state 

criminal prosecution had begun prior to the federal suit, “where an injunction would be impermissible under [Younger] principles, declaratory 

relief should ordinarily be denied as well.”1493 The Court has not directly 

addressed whether Younger applies when a federal plaintiff is seeking only 

monetary relief with respect to matters that are the subject of a pending 

state criminal proceeding. In Deakins v. Monaghan,1494 the Court held that 

a district court “has no discretion to dismiss rather than to stay claims for 

monetary relief that cannot be redressed in the state proceeding.”1495 The 

Court, however, has implied, that Colorado River abstention might be appropriate in such situations.1496

In a series of decisions beginning with Huffman v. Pursue, Ltd.,1497 the 

Supreme Court extended the application of Younger to bar federal interference with various state civil proceedings implicating important state 

interests. In Huffman, the Court noted that the state court civil nuisance 

proceeding at issue was in important respects “more akin to a criminal 

prosecution than are most civil cases,” because the state was a party to the 

proceeding, and the proceeding itself was in aid of and closely related to 

criminal statutes.1498 Thus, while refusing to make any general pronouncements as to Younger’s applicability to all civil litigation, the Court held 

that the district court should have applied Younger principles in deciding 

whether to enjoin the state civil nuisance proceeding.1499

In Middlesex County Ethics Committee v. Garden State Bar Ass’n,1500

the Court was faced with the question of whether pending state bar dis-
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ciplinary hearings were subject to the principles of Younger. In holding 

Younger applicable, the Court said that three inquiries are relevant to 

Younger abstention:

1. is there an “ongoing” state judicial proceeding;

2. does the state proceeding “implicate important state interests”; and

3. “is there an adequate opportunity in the state proceedings to raise 

constitutional challenges.”1501

In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc.,

1502

the Court held that Younger abstention applies to state-instituted, coercive, 

quasi-judicial administrative proceedings implicating important state interests, so long as there is an adequate opportunity to litigate the federal 

claims in the administrative proceeding or in a state court judicial review 

proceeding.1503 This aspect of the Younger doctrine is sometimes referred to 

as Younger-Dayton abstention.

In Sprint Communications, Inc. v. Jacobs,

1504 the Supreme Court clarified and narrowed the reach of Younger abstention. The Court ruled that 

Younger abstention applies only in three “exceptional categories”:

1. ongoing state criminal prosecutions;

2. state-instituted civil enforcement proceedings; and

3. state court orders issued in state civil cases in furtherance of the state 

courts’ ability to perform their judicial functions.1505 

The Court said that the three conditions articulated in Middlesex were 

not meant to be “dispositive; they were, instead, additional factors appropriately considered by the federal court before invoking Younger.”1506 

The three Middlesex factors should be understood in the context of the 

state-instituted, quasi-criminal attorney disciplinary proceeding in that 

case. In other words, Younger abstention should not be invoked simply because the federal defendant is able to “identify a plausibly important state 

interest” in the state court proceeding.1507

The Court in Sprint Communications held that Younger abstention 

should not be invoked because of a pending state court civil proceeding 

to resolve a dispute between purely private parties involving the same subject-matter as the federal suit.1508 Whether a federal court should abstain in 

these circumstances should be determined under the doctrine of Colorado 

River abstention, discussed in the next subsection. 
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There are narrow exceptions to the Younger doctrine. One exception 

requires a showing that the state prosecution was undertaken in bad faith, 

meaning not to secure a valid conviction, but to retaliate against or “chill” 

the exercise of constitutionally protected rights.1509 There is also an exception when the pending state proceedings fail to afford a full and fair opportunity to litigate the federal claim, but this is rarely found to be the case, 

especially because the Supreme Court presumes state procedures afford a 

full and fair opportunity to litigate federal claims.1510

III. Colorado River Abstention

Under Colorado River abstention, named after Colorado River Water Conservation District v. United States,

1511 a federal court may abstain when there 

is a “parallel” concurrent proceeding pending in state court. However, even 

when a “parallel” state court proceeding is pending, a federal court should 

invoke Colorado River abstention only in “exceptional circumstances.” The 

federal court’s task “is not to find some substantial reason for the exercise

of federal jurisdiction,”1512 but to determine whether exceptional circumstances “justify the surrender of that jurisdiction.”1513

In Colorado River, the federal government brought suit in federal court 

seeking an adjudication of certain water rights. Soon thereafter, a defendant in the federal suit moved to join the United States in a state court 

proceeding adjudicating the same water rights. The federal district court 

subsequently dismissed the suit, abstaining in deference to the state court 

proceedings.1514 Although the Supreme Court found that Pullman, Burford, and Younger abstentions did not apply to the facts of this case,1515 because the federal suit did not involve federal-state comity or avoidance of 

constitutional issues, it held that dismissal was proper on another ground, 

namely, “on considerations of ‘wise judicial administration, giving regard 

to conservation of judicial resources and comprehensive disposition of litigation.’”1516

The Court in Colorado River set forth the general rule that “the pendency of an action in the state court is no bar to proceedings concerning 

the same matter in the Federal court having jurisdiction.”1517 It recognized, 

however, that exceptional circumstances might permit dismissal of a federal suit because of concurrent state court proceedings.1518 The Court identified four factors to be considered in determining whether such exceptional 

circumstances exist: (1) the problems created by two courts exercising con-
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183

current jurisdiction over a res; (2) the relative inconvenience of the federal 

forum; (3) the goal of avoiding piecemeal litigation; and (4) the order in 

which the state and federal forums obtained jurisdiction.1519 In Moses H. 

Cone Memorial Hospital v. Mercury Construction Corp.,

1520 the Court underscored the need for exceptional circumstances before a federal court 

surrenders its jurisdiction over a case on the ground that there is a duplicative proceeding pending in state court.1521 In addition, the Court ruled 

that the presence of a question of federal law weighs heavily in favor of 

retention of federal court jurisdiction.1522

The Supreme Court has left open whether the proper course when employing Colorado River abstention is a stay or a dismissal without prejudice. 

It is clear, though, that “resort to the federal forum should remain available 

if warranted by a significant change of circumstances.”1523 The Court has 

noted that

where the basis for declining to proceed is the pendency of a state proceeding, a stay will often be the preferable course, because it assures 

that the federal action can proceed without risk of a time bar if the state 

case, for any reason, fails to resolve the matter in controversy.1524

A dismissal or stay of a federal action is improper unless the concurrent 

state court action has jurisdiction to adjudicate the claims at issue in the 

federal suit.1525

In Wilton v. Seven Falls Co.,

1526 the Supreme Court resolved a conflict 

among the circuits regarding the standard to be applied by a federal district 

court in deciding whether to stay a federal court declaratory judgment action in deference to parallel state proceedings. The Court held that

[d]istinct features of the [federal] Declaratory Judgment Act . . . justify 

a standard vesting district courts with greater discretion in declaratory 

judgment actions than that permitted under the “exceptional circumstances” test of Colorado River and Moses H. Cone. . . . In the declaratory judgment context, the normal principle that federal courts should 

adjudicate claims within their jurisdiction yields to considerations of 

practicality and wise judicial administration.1527

A stay order granted under Colorado River abstention is final and immediately appealable.1528 However, an order refusing abstention under 

Colorado River is “inherently tentative” and is not immediately appealable 

under the collateral order doctrine.1529
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IV. Burford Abstention

Under Burford abstention, named after Burford v. Sun Oil Co.,

1530 a federal 

court may abstain when federal relief would disrupt a complex state regulatory scheme and the state’s effort to centralize judicial review in a unified state court of special competence.1531 In Burford, the plaintiff sought 

to enjoin the enforcement of a Texas Railroad Commission order permitting the drilling of some wells on a particular Texas oil field. The order 

was challenged as a violation of both state law and federal constitutional 

grounds.1532 The Texas legislature had established a complex, thorough system of administrative and judicial review of the commission’s orders, concentrating all direct review of such orders in the state court of one county.1533 The state scheme evidenced an effort to establish a uniform policy 

with respect to the regulation of a matter of substantial local concern. The 

Court found that “[t]hese questions of regulation of the industry by the 

state administrative agency ... so clearly involve basic problems of Texas 

policy that equitable discretion should be exercised to give the Texas courts 

the first opportunity to consider them.”1534

Thus, where complex administrative procedures have been developed in an effort to formulate uniform state policy, “a sound respect for 

the independence of state action requires the federal equity court to stay 

its hand.”1535 Unlike Pullman abstention, Burford abstention does not anticipate a return to the federal district court. The federal court invoking 

Burford dismisses the action in favor of state administrative and judicial 

review of the issues, with “ultimate review of the federal questions ... fully 

preserved” in the Supreme Court.1536

In New Orleans Public Service, Inc. v. Council of New Orleans (NOPSI),

1537

the Court clarified that “[w]hile Burford is concerned with protecting complex state administrative processes from undue federal interference, it does 

not require abstention whenever there exists such a process, or even in all 

cases where there is a ‘potential for conflict’ with state regulatory law or 

policy.”1538 It emphasized that the primary concern underlying Burford abstention is the avoidance of federal court disruption of “the State’s attempt 

to ensure uniformity in the treatment of an ‘essentially local problem.’”1539

The Court in NOPSI stated that under the Burford doctrine,

[w]here timely and adequate state-court review is available, a federal 

court sitting in equity must decline to interfere with the proceedings 

or orders of state administrative agencies: (1) when there are “difficult 
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185

questions of state law bearing on policy problems of substantial public 

import whose importance transcends the result in the case then at bar”; 

or (2) where the “exercise of federal review of the question in a case and 

in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”1540

The Supreme Court has held that the federal court’s power to dismiss 

or remand based on Burford abstention exists only where the relief sought 

is equitable or otherwise discretionary in nature.1541 When Burford is invoked in an action for damages, the district may only stay, not dismiss, the 

federal suit.1542

V. Domestic Relations Doctrine

The “domestic relations” doctrine generally prohibits federal court adjudication of a domestic relations matter, such as child custody, child support, or alimony.1543 Whether this doctrine applies to § 1983 constitutional 

claims is unclear. In fact, federal courts have routinely adjudicated the constitutionality of state policies pertaining to family law matters.1544

VI. Tax Injunction Act

The Tax Injunction Act prohibits federal courts from interfering with state 

and local tax collection, so long as the state provides a “plain, speedy, and 

efficient remedy.”1545 The Tax Injunction Act “is a jurisdictional bar that is 

not subject to waiver, and the federal courts are duty-bound to investigate 

the application of the Tax Injunction Act regardless of whether the parties 

raise it as an issue.”1546

In Hibbs v. Winn,

1547 the Supreme Court held that the Tax Injunction 

Act does not apply to a constitutional challenge to a state tax credit policy 

because such a claim does not interfere with the collection of state taxes. In 

Levin v. Commerce Energy, Inc.,

1548 however, the Supreme Court read Hibbs 

narrowly, and held that comity precludes a federal court action by one 

business entity contesting allegedly discriminatory state policies granting 

tax credits to competitive businesses. The plaintiff, a local natural gas distribution company (LDC) which owns and operates networks of distribution pipelines to transport and deliver gas to consumers, alleged in its 

federal court complaint that Ohio’s discriminatory granting of tax exemptions to competitor companies (independent marketers that do not own or 

operate their own distribution pipelines, and use LDC company pipelines) 
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was unconstitutional. The LDC sought injunctive and declaratory relief 

invalidating these tax exemptions.

Even though the plaintiff’s claims sought to increase state taxation, the 

suit was barred by the comity doctrine applicable in state taxation cases. 

The Court found that the broader principle of comity—which predated 

the enactment of the Tax Injunction Act in 1937, survived its enactment, 

and has been applied by the Supreme Court after its enactment—“has particular force when lower federal courts are asked to pass on the constitutionality of state taxation on commercial activity.”1549 Because the suit was 

barred by comity, the Court did not have to decide whether the suit was 

barred by the Tax Injunction Act. The Court distinguished Hibbs:

First, [the Levin plaintiffs] seek federal court review of commercial matters over which Ohio enjoys wide regulatory latitude; their suit does 

not involve any fundamental right or classification that attracts heightened judicial scrutiny. Second, while [plaintiffs] portray themselves as 

third-party challengers to an allegedly unconstitutional tax scheme, 

they are in fact seeking federal-court aid in an endeavor to improve 

their competitive position. Third, the Ohio courts are better positioned 

than their federal counterparts to correct any violation because they 

are more familiar with state legislative preferences and because the [Tax 

Injunction Act] does not constrain their remedial options. Individually, 

these considerations may not compel forbearance on the part of federal 

district courts; in combination, however, they demand deference to the 

state adjudicative process.1550
187

22. Monetary Relief

Section 1983 authorizes the imposition of liability “in an action at law, 

suit in equity, or other proper proceeding for redress . . . .” The full range 

of common-law remedies “at law” and “in equity” is available to a plaintiff 

asserting a claim under § 1983. Legal relief may take the form of nominal, compensatory, and punitive damages. Claims for damages may raise a 

large range of issues, including limitations on the right to recover punitive 

damages, the validity of release-dismissal agreements, the right to indemnification, and limitations on prisoner remedies in the Prison Litigation 

Reform Act. The various issues pertaining to monetary relief are discussed 

in the subsections below.

I. Nominal and Compensatory Damages

“When § 1983 plaintiffs seek damages for violations of constitutional 

rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.”1551 The Supreme Court has 

pointed out, however, that “[t]he rule of damages . . . is a federal rule responsive to the need whenever a federal right is impaired.”1552

Compensatory damages generally fall into one of two categories: special or general. Special damages relate to specific pecuniary losses, such 

as lost earnings, medical expenses, and loss of earning capacity. General 

damages include compensation for physical pain and suffering, as well as 

emotional distress.1553 Nominal damages are awarded for the violation of a 

right with no proven actual injury.

In Carey v. Piphus1554 and Memphis Community School District v. Stachura,

1555 the Supreme Court held that compensatory damages for a constitutional violation under § 1983 must be based on proof of the actual 

injuries suffered by the plaintiff. In both cases, the Court ruled that when 

a § 1983 plaintiff suffers a violation of constitutional rights, but no actual 

injuries, she is entitled to an award of only $1 in nominal damages.1556

In Carey, the Court held that “although mental and emotional distress 

caused by the denial of procedural due process itself is compensable under 

§ 1983, neither the likelihood of such injury nor the difficulty of proving 

it is so great as to justify awarding compensatory damages without proof 

that such injury actually was caused.”1557 Thus, actual damages will not be 
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presumed in a procedural due process case and, without proof of damages, 

the plaintiff will be entitled only to “nominal damages not to exceed one 

dollar.”1558 The Court noted that the primary purpose of the damages remedy in § 1983 litigation is “to compensate persons for injuries caused by the 

deprivation of constitutional rights.”1559 Actual damages caused by a denial 

of procedural due process may be based on either the emotional distress 

caused by the denial of fair process, or by an unjustifiable deprivation of 

liberty or property attributable to lack of fair process.1560

In Stachura, the Court extended its holding in Carey to the violation of 

a plaintiff’s First Amendment rights. It held that “damages based on the 

abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages” in § 1983 cases.1561 The problem 

was that the district court’s jury instructions allowed for an award of damages that was neither compensatory nor punitive, but was based solely on 

the perceived “value” or “importance” of the particular constitutional right 

violated.1562 The Court distinguished the line of common-law voting rights 

cases awarding presumed damages “for a nonmonetary harm that cannot 

easily be quantified.”1563 Thus, while presumed damages ordinarily will 

not be available in § 1983 actions, presumed damages may be appropriate 

“[w]hen a plaintiff seeks compensation for an injury that is likely to have 

occurred but difficult to establish.”1564 A model jury instruction for § 1983 

compensatory damages is in the Appendix (see infra Model Instruction 7).

A. Causation

Common-law tort proximate cause principles apply to compensatory 

damages under § 1983. Therefore, “[a] successful § 1983 plaintiff . . . 

must establish not only that a state actor violated his constitutional 

rights, but also that the violation caused the plaintiff injury or damages.”1565 The district court should include this proximate cause principle 

in its instructions concerning compensatory damages.1566

Under the common-law “eggshell skull” doctrine, which applies in 

§ 1983 actions, a “tortfeasor takes his victim as he finds him, and if a 

special vulnerability [e.g., a thin skull] leads to an unusually large loss, 

the wrong doer is fully liable.”1567

B. Rule Against Double Recovery

Section 1983 complaints frequently assert multiple constitutional 

claims against multiple defendants. Under the “rule against double 
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recovery” the plaintiff is entitled to be made whole and compensated 

once for her injuries.1568 The district court’s instructions and verdict 

form should guard against duplicative recovery by stressing that the 

jury “may not compensate [plaintiff] twice for any [injuries] she might 

have suffered.”1569

C. Duty to Mitigate Damages

Like common-law tort plaintiffs, § 1983 plaintiffs are required to take 

reasonable steps to mitigate their damages.1570 The burden is on the defendant to show that the plaintiff has not mitigated her damages.1571

The question is one of fact for the jury.1572

II. Punitive Damages

In Smith v. Wade,

1573 the Supreme Court held that a § 1983 plaintiff may 

recover punitive damages against an official in her personal capacity if the 

official acted with malicious or evil intent or in callous disregard of the 

plaintiff’s federally protected rights.1574 “Although the specific intent to violate plaintiff’s federally protected right will support a punitive damages 

award, ‘reckless indifference’ towards a plaintiff’s federally protected right 

also suffices to authorize liability for punitive damages under § 1983.”1575

The Smith standard does not require a showing that the defendant engaged 

in “egregious” misconduct.1576 The majority view in the courts of appeals 

is that punitive damages may be awarded even when the plaintiff recovers 

only nominal damages.1577 If a reasonable jury could find that the defendant acted with malice or callous indifference, the district judge should 

submit the issue of punitive damages to the jury under proper instructions.1578 The courts in § 1983 cases hold that the burden is on the defendant to introduce evidence of his financial circumstances.1579 When there 

are multiple defendants the district court should clearly instruct the jury 

“that each individual defendant’s actions and fault must serve as the basis 

for fashioning an appropriate punitive damages award.”1580

In City of Newport v. Fact Concerts, Inc.,

1581 the Supreme Court held that 

punitive damages cannot be awarded against a municipal entity. The Court 

found that municipal entities are immune from punitive damages under 

§ 1983. Nor may punitive damages be awarded under § 1983 against a state 

entity. Eleventh Amendment state sovereign immunity bars a federal court 

award of punitive damages payable out of the state treasury.1582 Further-
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more, states and state entities are not suable “persons” within the meaning 

of § 1983.1583

The district court is authorized to review a jury award of punitive damages under common-law principles to determine whether it is so high as to 

shock the judicial conscience,1584 as well as under substantive due process 

to determine whether the amount of the award is “grossly excessive.”1585

The First Circuit observed that “[c]ourts rarely apply the common law 

excessiveness standard to punitive damages these days, since aggrieved 

defendants now commonly invoke the arguably stricter due process standard.”1586

Supreme Court decisional law holds that “grossly excessive” punitive 

damage awards violate substantive due process.1587 To determine whether 

the award is “grossly excessive,” consideration must be given to (1) the degree of reprehensibility of the defendant’s conduct—the most important 

factor; (2) the ratio between the harm or potential harm to the plaintiff 

and the punitive damages award; and (3) the disparity between the punitive damages award and civil penalties authorized or imposed in comparable cases.1588 “[I]n practice, few [punitive damages] awards exceeding a 

single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”1589 However, a larger ratio “may 

comport with due process when a particularly egregious act has resulted in 

only a small amount of economic damages.”1590

In Phillip Morris USA v. Williams,

1591 the Supreme Court held that due 

process prohibits a punitive damages award that punishes the defendant for 

injuries inflicted by the defendant upon nonparties. It acknowledged, however, that the defendant’s infliction of harm upon others may be relevant 

in assessing the reprehensibility of the defendant’s conduct. “Evidence of 

actual harm to nonparties can help to show that the conduct that harmed 

the plaintiff also posed a substantial risk of harm to the general public, and 

so was particularly reprehensible. . . .”1592 The Court said that trial judges 

must take steps—presumably the issuance of proper jury instructions—

designed to ensure that the defendant’s other wrongs are considered solely 

on the issue of reprehensibility, and are not relied on by the jury to punish 

the defendant directly.

In the author’s view, it is questionable whether the trial court will be 

able to formulate an effective instruction to carry out this goal because it 

seems unlikely that the jury will be able to comprehend how the defen-
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dant’s other wrongs may be considered in evaluating the reprehensibility 

of his conduct, but not in determining the amount of punitive damages.1593

Furthermore, because one of the purposes of punitive damages is to deter 

unlawful conduct, it would seem that the jury should know whether the 

defendant has engaged in similar wrongdoing in the past. In other words, 

higher punitive damages are more likely to be necessary to deter a repeat 

offender than an isolated wrongdoer. The Supreme Court’s punitive damages substantive due process principles apply in § 1983 actions.1594 A model 

jury instruction for a § 1983 claim for punitive damages is in the Appendix 

(see infra Model Instruction 8).

III. Release-Dismissal Agreements

Section 1983 damage claims may be settled, waived, or released. The validity of a settlement, waiver, or release of a § 1983 claim depends on whether 

it is voluntary, informed, and not contrary to public policy.1595 A recurring 

issue in § 1983 actions concerns the validity of “release-dismissal agreements” pursuant to which law enforcement authorities agree to dismiss 

criminal charges in exchange for the release of § 1983 claims. In Town of 

Newton v. Rumery,

1596 the Supreme Court held that these agreements are 

not automatically invalid. Rather, the validity of a release-dismissal agreement should be evaluated on a case-by-case basis to determine whether the 

agreement (1) was voluntary, (2) was the product of prosecutorial overreaching or other misconduct, and (3) adversely affects the public interest.

IV. Indemnification

An important issue in many § 1983 cases is whether the relevant governmental entity will indemnify the defending official for her monetary liability. Indemnification is not covered by federal law; it is strictly a matter 

of state or local law.1597 Some of the issues that may arise in federal court 

§ 1983 actions are whether there is supplemental jurisdiction over the indemnification claim and, if so, whether the federal court should exercise 

that jurisdiction;1598 the meaning and application of state indemnification 

law;1599 and whether the jury should be informed about indemnification. 

Although most courts hold that indemnification is akin to insurance, and 

should be shielded from the jury,1600 the author believes that it is better to 

inform jurors about the reality of indemnification.1601
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V. Prison Litigation Reform Act

In any action involving prisoners’ rights, there are likely to be substantial 

limitations placed on the availability and scope of the remedies sought. Although a comprehensive discussion of the various provisions of the Prison 

Litigation Reform Act (PLRA) is beyond the scope of this monograph, the 

importance of consulting the Act in appropriate cases cannot be overemphasized. For example, the PLRA precludes the bringing of a civil action 

by a prisoner “for mental or emotional injury suffered while in custody 

without a prior showing of physical injury.”1602 Exhaustion of administrative remedies is required in actions relating to prison conditions.1603 The 

availability of attorneys’ fees for prevailing prisoners is significantly restricted.1604 Injunctive relief in prison reform litigation must be narrowly 

drawn to remedy violations of federal rights.1605 Government officials may 

seek the immediate termination of all prospective relief that was awarded 

or approved before the enactment of the PLRA “in the absence of a finding 

by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive 

means necessary to correct the violation of the federal right.”1606

In Brown v. Plata,1607 the Supreme Court, 5–4, upheld orders of threejudge federal courts, after extensive litigation, requiring California to release as many as 46,000 prisoners to remedy severe, ongoing systemic constitutional violations, specifically, denial of adequate medical and mental 

health care attributable to severe and exceptional overcrowding in California prisons.

The order leaves the choice of means to reduce overcrowding to the 

discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of 

the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences 

have been served.1608

The order does not require the actual release of prisoners; California may 

increase its prison capacity or transfer prisoners to other facilities, including in other states.

Some of the important PLRA provisions at issue in Brown, which the 

Court found satisfied, are: 
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1. Under the PLRA, only a three-judge court may issue an order limiting a prison population. 18 U.S.C. § 3626 (a)(3)(B). Before a panel 

may be convened, the court must find, inter alia, that an order for 

less intrusive relief failed to remedy the constitutional violation.

2. A remedy shall extend no further than necessary to remedy the violation of the federal rights of the plaintiff(s), shall be narrowly 

drawn, and is the least intrusive means necessary to correct the violation of the federal right. 18 U.S.C. § 3626(a)(1)(A).

3. To support a prison population reduction order, the court must 

find by clear and convincing evidence that overcrowding is the primary cause of the violation of a federal right, and no other relief 

will remedy the violation. 18 U.S.C. § 3626(a)(3)(E)(i)(ii).

The Court stressed that overcrowding need only be the “primary cause” 

of a constitutional violation, meaning that it “need only be the foremost, 

chief, or principal cause of the violation”; it need not be the “only cause.”1609

The Court also emphasized that the federal courts have the responsibility and broad equitable powers to remedy constitutional violations.1610 It 

found that the extensive and ongoing violations of prisoners’ constitutional rights require a remedy, and the remedy will not be achieved without a 

reduction in overcrowding.
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23. Attorneys’ Fees1611

I. Section 1988 Fee Litigation

The Civil Rights Attorney’s Fees Awards Act of 19761612 authorizes courts, in 

their discretion, to award reasonable attorneys’ fees to the prevailing party 

in a § 1983 action. Section 1988 fees serve “an important public purpose 

by making it possible for persons without means to bring suit to vindicate 

their rights.”1613 Section 1983 fees are thus an “integral part” of § 1983 remedies.1614

The Supreme Court has admonished the lower federal courts that a 

“request for [§ 1988(b)] attorney’s fees should not result in a second major litigation.”1615 Nevertheless, § 1988(b) fee disputes often do result in a 

“second major litigation.”1616 Fee litigation “can turn a simple civil case into 

two or even more cases—the case on the merits, the case for fees, the case 

for fees on appeal, the case for fees for proving fees, and so on ad infinitum 

or at least ad nauseam.”1617 As a federal district judge lamented, the goal of 

avoiding a second major litigation

has proved a somewhat pious and forlorn hope. In view of the complexities the Supreme Court and the lower courts have grafted onto the 

fee calculation process, federal courts are today enmeshed in an inordinately time consuming and ultimately futile search for a fee that reflects 

market forces in the absence of a relevant market.1618

II. Prevailing Parties

A. Prevailing Plaintiffs Presumptively Entitled to Fees

Section 1988(b) authorizes a fee award to a “prevailing party.” “[L]iability on the merits and responsibility for fees go hand in hand; where a 

defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against 

that defendant.”1619 Whether a party is a prevailing party is a question 

of law for the court.1620 Courts interpret the § 1988 fee-shifting statute 

to mean that attorneys’ fees should be awarded to a prevailing plaintiff 

almost as a matter of course.1621 Fees should be denied to a prevailing 

plaintiff only when “special circumstances” would make a fee award 
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unjust.1622 The fiscal impact of a fee award upon a municipality,1623 defendant’s good faith,1624 and the fact the fees will ultimately be paid by 

taxpayers1625 have all been held not to be “special circumstances” justifying either a denial or reduction of fees. However, some decisions have 

held that a plaintiff’s grossly inflated fee application may be a special 

circumstance justifying the denial of fees.1626

B. Double Standard: Prevailing Defendants Presumptively Not Entitled to

Fees

Prevailing defendants are entitled to attorneys’ fees only when the 

plaintiff’s action was “frivolous, unreasonable, or groundless, or . . . the 

plaintiff continued to litigate after it clearly became so.”1627 Although 

“attorney’s fees should rarely be awarded against [pro se] § 1983 plaintiffs,” the district court has discretion to do so.1628 In most cases the district court’s failure to give adequate reasons or explanation for awarding 

fees to a defendant is an abuse of discretion necessitating a remand.1629

The Supreme Court held that when a § 1983 complaint asserts both 

frivolous and nonfrivolous claims, the court may award fees to the prevailing defendant, but only for the fees that the defendant would not 

have incurred but for the frivolous claims.1630 The critical question in 

computing the defendant’s fees in these circumstances is whether the 

defendant’s fees “would have been incurred in the absence of the frivolous allegation.”1631

C. Plaintiff Must Obtain Some Judicial Relief

The plaintiff will be considered a prevailing party when he succeeds 

on “any significant issue” that achieves some of the benefit the plaintiff sought in bringing suit.1632 To be a prevailing party, the plaintiff 

must obtain some judicial relief as a result of the litigation; the mere 

fact that the court expressed the view that the plaintiff’s constitutional 

rights were violated does not qualify the plaintiff as a prevailing party.1633 The mere fact that the plaintiff prevailed on a procedural issue 

during the course of the litigation, such as by obtaining an appellate 

decision granting a new trial, also does not qualify the plaintiff as a prevailing party.1634 “[A] plaintiff ‘prevails’ when actual relief on the merits 

of [the plaintiff’s] claim materially alters the legal relationship between 

the parties by modifying the defendant’s behavior in a way that directly 

benefits the plaintiff.”1635
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In Farrar v. Hobby,

1636 the Supreme Court held that a § 1983 plaintiff 

who recovers only nominal damages is nevertheless a prevailing party 

eligible to recover attorneys’ fees under § 1988(b); but usually a reasonable fee in these circumstances is either no fees or very low fees. In 

determining whether to award fees to a plaintiff who recovered only 

nominal damages, Justice O’Connor’s concurring opinion in Farrar

urged courts to consider the difference between the damages sought 

and the damages recovered, the significance of the legal issues on which 

the plaintiff claims to have prevailed, and the public purpose served 

by the litigation.1637 The lower federal courts have generally relied on 

O’Connor’s concurrence in evaluating the fee issue in nominal damages cases.1638

A plaintiff who asserts a § 1983 claim that is not insubstantial, and 

obtains relief on a “pendent” (i.e., “supplemental”) state law claim is a 

prevailing party eligible for fees under § 1988, even though the § 1983 

claim is not decided on the merits.1639 The plaintiff, however, is not entitled to fees if the § 1983 claim is insubstantial,1640 or if the court in fact 

decides the merits of the plaintiff’s constitutional claim adverse to the 

plaintiff.1641

The plaintiff may be a prevailing party even if she did not prevail 

on all of her claims. In Hensley v. Eckerhart,

1642 the Supreme Court 

held that when the plaintiff prevails on some, but not all, claims arising out of common facts, the results obtained determine whether the 

fees should be reduced because of lack of complete success. The Court 

said that in determining the amount of the fee award, “the most critical factor is the degree of success obtained.”1643 The Court also ruled 

that when the plaintiff prevails on some, but not all, claims that are not 

interrelated, the plaintiff should be awarded fees only for the successful claims.1644 However, when the successful and unsuccessful claims 

are interrelated, the district court should focus on the overall results 

achieved. If the plaintiff achieved “excellent results,” she should recover 

a full compensatory fee award. If the plaintiff achieved “only partial or 

limited success,” the district court should consider whether the lodestar 

fee amount (reasonable hours multiplied by reasonable rates) is excessive. The district court should award only the amount of fees that is 

“reasonable in relation to the results obtained.”1645
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In Buckhannon Board & Care Home v. West Virginia Department of 

Health & Human Resources,

1646 the Supreme Court held that the fact that 

the lawsuit was a catalyst in causing the defendant to alter its conduct 

in relation to the plaintiff does not qualify the plaintiff as a prevailing 

party. It ruled that to be a “prevailing party,” the plaintiff must secure 

a favorable judgment on the merits or a court-ordered consent decree. 

The Court overturned the catalyst doctrine that had been adopted by 

eleven Circuits and rejected only by the Fourth Circuit. Under Buckhannon, only “enforceable judgments on the merits and court-ordered 

consent decrees create the ‘material alteration of the legal relationship 

of the parties’ necessary to permit an award of attorney’s fees.”1647 Dictum states that private settlements not embodied in a judicial decree 

will not qualify the plaintiff as a prevailing party because “[p]rivate settlements do not entail the judicial approval and oversight involved in 

consent decrees.”1648

Buckhannon involved the federal fee-shifting statutes in the Fair 

Housing Act and Americans with Disabilities Act. However, the lower 

federal courts have uniformly applied the decision to other civil rights 

fee-shifting statutes, including 42 U.S.C. § 1988(b).1649

Buckhannon has generated a great deal of litigation, raising such 

issues as whether a preliminary injunction or “so ordered” settlement 

qualifies the plaintiff as a prevailing party.1650 A “stipulation and order 

of discontinuance,” combined with court retention of jurisdiction over 

the settlement for enforcement purposes, may qualify the plaintiff as a 

prevailing party.1651

A pro se plaintiff is not eligible to recover attorneys’ fees, even if the 

plaintiff is an attorney.1652 Thus, only a prevailing plaintiff who is represented by counsel is eligible to recover fees.

III. Computation of Fee Award: Lodestar Adjustment Method

Section 1988(b) provides that a court may award a prevailing party “a reasonable attorney’s fee as part of the costs.” Fees awarded under § 1988 are 

computed under the “lodestar” method of multiplying reasonable hours 

by reasonable hourly market rates for attorneys in the community with 

comparable backgrounds and experience.1653 There is a “strong presumption” that the lodestar produces a reasonable fee.1654 The district court may 

enhance the lodestar for the quality of representation, but only in “rare” 
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and “exceptional” circumstances.1655 The underlying goal of a § 1988(b) fee 

award is to “attract competent counsel.”1656 The fee applicant must submit 

“appropriate documentation” to establish entitlement to an award.1657

The Supreme Court stressed that, in determining an attorney’s reasonable hours, trial courts “should not[ ] become green-eyeshade accountants. 

The essential goal in shifting fees (to either party) is to do rough justice, 

not to achieve auditing perfection. So trial courts may take into account 

their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.”1658

The “fee applicant has the burden of showing by ‘satisfactory evidence 

—in addition to the attorney’s own affidavits’—that the requested hourly 

rates are the prevailing market rates.”1659

At a minimum, a fee applicant must provide some information about 

the attorneys’ billing practices and hourly rate, the attorneys’ skill and 

experience (including the number of years that counsel has practiced 

law), the nature of counsel’s practices as it relates to this kind of litigation, and the prevailing market rates in the relevant community.1660

The district court may “rely in part on [its] own knowledge of private 

firm hourly rates in the community.”1661 The district court may also “consider other rates that have been awarded in similar cases in the same district.”1662

Under the “forum” rule there is a presumption in favor of applying 

the rates of the forum.1663 To “overcome that presumption, a litigant must 

persuasively establish that a reasonable client would have selected out-ofdistrict counsel because in doing so would likely produce a substantially 

better based result.”1664 The fee applicant may satisfy her burden by showing that local counsel was unable or unwilling to take the case, or that in a 

case requiring special expertise, “that no in-district counsel possessed such 

expertise.”1665

Paralegal services that contributed to the attorney’s work product may 

be compensated at “prevailing market rates” rather than the cost of paralegal services incurred by counsel.1666

The fee applicant bears the burden of documenting and demonstrating the reasonableness of the hours claimed.1667 The reasonableness of the 

hours depends in part on counsel’s expertise.1668 “A fee applicant cannot 

demand a high hourly rate—which is based on his or her experience, rep-
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utation, and a presumed familiarity with the applicable law—and then run 

up an inordinate amount of time researching that same law.”1669

The district court should exclude hours that are “excessive, redundant, 

or otherwise unnecessary.”1670 “[T]rial courts may take into account their 

overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.”1671 In some circumstances, fees may be awarded 

for post-judgment monitoring.1672 The fee applicant’s failure to exercise 

proper billing judgment by failing to exclude hours that are excessive, redundant, or otherwise unnecessary may lead the district court to reduce 

the fee award.1673

The Supreme Court has generally disapproved of the use of upward adjustments to the lodestar.1674 In “rare” and “exceptional” cases, an upward 

adjustment may be made because of the superior quality of representation1675 or for “exceptional success.”1676 Fees may also be adjusted upward to 

compensate the prevailing party for delay in payment, either by using current market rates rather than historic rates, or by adjusting historic rates to 

account for inflation.1677 The lodestar may not be enhanced to compensate 

for the risk of non-success when the plaintiff’s attorney was retained on a 

contingency basis.1678 Nor should the lodestar be enhanced because of the 

novelty and complexity of a case because these factors are presumably fully 

reflected in counsel’s billable hours.1679

In City of Riverside v. Rivera,

1680 the Supreme Court held that the fees 

awarded need not be proportional to the damages recovered by the plaintiff. The approximately $245,000 in fees awarded the plaintiff substantially exceeded the $33,350 in damages he recovered.1681 “Because damages 

awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases . . . to depend on 

obtaining substantial monetary relief.”1682

The fees awarded under § 1988 are not limited to the amount of fees 

recoverable by counsel pursuant to a contingency fee agreement.1683 Conversely, the fees collectable under a contingency agreement may exceed the 

fees awarded under § 1988.1684

Fees generally may not be awarded for work performed on administrative proceedings that preceded the § 1983 action , unless those proceedings 

“contributed directly to the successful outcome in federal court and obviated the need for comparable work in the federal action. . . .”1685 In addition, 
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expert witness expenses are not recoverable as part of the § 1988 fee award 

in § 1983 actions.1686

Legal services organizations and other nonprofit organizations are entitled to have fee awards computed on the basis of reasonable market rates 

rather than on the lower salaries paid to the organization’s attorneys.1687

IV. Other Fee Issues

A. Eleventh Amendment Immunity

When prospective relief is awarded against state officials under the doctrine of Ex parte Young,

1688 an award of fees payable out of the state treasury is not barred by the Eleventh Amendment.1689 Further, the Eleventh Amendment does not bar an upward adjustment in the lodestar to 

compensate for delay in payment.1690

B. Offer of Judgment

Federal Rule of Civil Procedure 68 provides that “a party defending a 

claim may serve upon the adverse party an offer to allow judgment to 

be taken against the defending party for the money . . . specified in the 

offer, with costs then accrued.” If the offeree rejects the offer and “the 

judgment finally obtained by the offeree is not more favorable than the 

offer, the offeree must pay the costs incurred after making the offer.” In 

Marek v. Chesny,

1691 the Supreme Court held that the “costs” referred to 

in Rule 68 encompass § 1988(b) attorneys’ fees. Therefore, even though 

the plaintiff was the prevailing party, if the plaintiff did not obtain 

more favorable relief than he had been offered under Rule 68, he may 

not recover from the defendant any § 1988(b) fees that accrued after the 

rejected offer of judgment.1692

The Court in Marek emphasized that if the defendant intends his 

Rule 68 offer of judgment to cover “costs,” that is, § 1988 attorneys’ fees, 

the offer must clearly say so. The Court stated:

If an offer recites that costs are included or specifies an amount for 

costs, and the plaintiff accepts the offer, the judgment will necessarily 

include costs; if the offer does not state that costs are included and an 

amount for costs is not specified, the court will be obliged by the terms 

of the Rule to include as its judgment an additional amount which in 

its discretion, it determines to be sufficient to cover the costs.1693
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Marek did not address whether a defendant who makes a successful 

Rule 68 offer is entitled to § 1988 fees that accrued after the date of the 

offer. The great weight of lower court authority holds that although 

Rule 68 authorizes an award of post-offer “costs” to the defendant, these 

costs do not include § 1988 fees to a nonprevailing defendant.1694

C. Settlement of Merits and Fees

In Evans v. Jeff D.,

1695 the Supreme Court held that an offer by a defendant to settle the plaintiff’s claim on the merits and the claim for fees 

simultaneously is not necessarily unethical. The Court said that a claim 

for § 1988 fees belongs to the party, not to her attorney,1696 and is considered part of “the arsenal of remedies available to combat violations 

of civil rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorney’s fees.”1697

D. Explanation of Fee Determination

Finally, “[i]t is essential that the judge provide a reasonably specific explanation for all aspects of a fee determination” in order to allow for 

meaningful appellate review.1698

203

Notes

Chapter 1: Introduction to § 1983 Litigation, p. 1

1. 42 U.S.C. § 1983 (1996).

2. See, e.g., L.A. Cnty. v. Humphries, 131 S. Ct. 447, 451–53 (2010) (legislative history 

of § 1983 supports conclusion that municipality may be subject to prospective relief only 

when violation of federal rights is attributable to enforcement of municipal policy or practice); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66–71 (1989) (states and state agencies 

are not suable “persons”); Patsy v. Bd. of Regents, 457 U.S. 496, 501–02 (1982) (exhaustion 

of state remedies not required under § 1983); Quern v. Jordan, 440 U.S. 332, 341–42 (1979) 

(Congress enacted original version of § 1983 pursuant to § 5 of Fourteenth Amendment 

but did not intend to override Eleventh Amendment); Monell v. Dep’t of Soc. Servs., 436 

U.S. 658, 690–91 (1978) (municipalities are suable persons under § 1983 but not on basis 

of respondeat superior liability); Monroe v. Pape, 365 U.S. 167, 170–71 (1961) (§ 1983 

provides federal remedy independent of state law remedies and is available even when state 

official acted in violation of state law), rev’d on other grounds, Monell v. Dep’t of Soc. Servs., 

436 U.S. 658 (1978).

3. 365 U.S. 167 (1961), rev’d on other grounds, Monell, 436 U.S. 658.

4. Monroe, 365 U.S. at 173–74.

5. Id. at 186.

6. Id. at 187.

7. Id. at 183–87.

8. Id. at 180.

9. Robertson v. Wegmann, 436 U.S. 584, 590–91 (1978). See also Wyatt v. Cole, 504 U.S. 

158, 161 (1992); Hardin v. Straub, 490 U.S. 536, 539 (1989); Burnett v. Grattan, 468 U.S. 

42, 53 (1984).

10. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).

11. 436 U.S. 658 (1978).

12. See infra Chapter 11. The Supreme Court recently reaffirmed Monell and held that 

its rejection of respondeat superior and the requirement that the violation of plaintiff’s 

federal rights be attributable to enforcement of a municipal policy or practice is not limited 

to claims for damages, and applies also to claims for prospective relief. L.A. Cnty. v. Humphries, 131 S. Ct. 447, 451–54 (2010).

13. 547 U.S. 586 (2006).

14. Id. at 597–98.

15. Id. (citing Michael Avery, David Rudovsky, & Karen Blum, Police Misconduct: Law 

and Litigation, p. v (3d ed. 2005)).

16. Id. at 597–98.

17. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. Feldman, 

460 U.S. 462 (1983).
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18. See generally Perdue v. Kenny A., 130 S. Ct. 1662 (2010); Blum v. Stenson, 465 U.S. 

886 (1984). For an extensive analysis of § 1988 attorney’s fees, see 2 Martin A. Schwartz & 

John E. Kirklin, Section 1983 Litigation: Statutory Attorney’s Fees (4th ed. 2014).

19. Pretrial discovery is governed by Fed. R. Civ. P. 26–37.

20. See infra Chapter 16, § IV.D.b.

21. Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (quoting Martin A. 

Schwartz, Section 1983 in the Second Circuit, 59 Brook. L. Rev. 285, 309 (1993)).

22. See infra Chapter 16, § IV.D.b. On the other hand, to determine whether the plaintiff 

has alleged a “plausible” § 1983 claim, the Supreme Court has directed the districts not to 

consider whether they may be able to carefully manage discovery. See infra Chapter 3, § III.C.

23. Application of privileges in § 1983 litigation is covered in detail in 3 Martin A. 

Schwartz, Section 1983 Litigation: Federal Evidence, Chs. 7 & 8 (5th ed. 2014).

24. See, e.g., In re City of N.Y., 607 F.3d 923, 945 (2d Cir. 2010).

25. Chauffers Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558, 564 (1990).

26. Id.

27. In City of Monterey v. Del Monte Dunes, 526 U.S. 687, 707–22 (1999), the Court held 

that there is a right to a jury trial on a § 1983 regulatory taking claim. The decision, however, 

strongly supports the right to a jury trial in all § 1983 federal court actions for monetary 

relief in excess of $20. Id. at 709–11. See 1B Martin A. Schwartz, Section 1983 Litigation: 

Claims and Defenses § 16.02[l] (4th ed. 2014).

The Seventh Amendment guarantees the right to a jury trial on a federal court claim for 

punitive damages. Jones v. UPS, Inc., 674 F.3d 1187, 1202–06 (10th Cir.) (non-§ 1983), cert. 

denied, 133 S. Ct. 413 (2012).

28. Burt v. Abel, 585 F.2d 613, 616 n.7 (4th Cir. 1978).

29. Wilson v. Bailey, 934 F.2d 301, 306 (11th Cir. 1991) (§ 1983 injunctive and declaratory relief not triable by jury). 

30. See generally Dairy Queen v. Wood, 369 U.S. 469, 472–73 (1962); Beacon Theatres v. 

Westover, 359 U.S. 500, 510–11 (1959). 

31. For an extensive compilation of § 1983 instructions with commentary and annotations, see 4 Martin A. Schwartz & George C. Pratt, Section 1983 Litigation: Jury Instructions

(2d ed. 2014).

32. Noel v. Artson, 641 F.3d 580, 587 (4th Cir.), cert. denied, 132 S. Ct. 516 (2011).

33. Id. at 590.

34. See, e.g., Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). See also Dang v. Cross, 

422 F.3d 800, 805 (9th Cir. 2005).

35. Cotts v. Osafo, 692 F.3d 564, 568 (7th Cir. 2012).

36. Id. at 569.

Chapter 2: Constitutional Claims Against Federal Officials: The Bivens

Doctrine, p. 7

37. See infra Chapter 3, § I, and Chapter 7.

38. Id.

39. District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973).

40. 403 U.S. 388 (1971).
Notes

205

41. FDIC v. Meyer, 510 U.S. 471, 484–85 (1994). See also Ashcroft v. Iqbal, 556 U.S. 662, 

676–77 (2009).

42. 442 U.S. 228 (1979).

43. The plaintiff in Davis asserted a gender discrimination claim against Congressman 

Passman.

44. Bivens, 403 U.S. at 395. Accord Davis, 442 U.S. at 245.

45. Bivens, 403 U.S. at 410 (“damages or nothing”) (Harlan, J., concurring); Davis, 442 

U.S. at 245.

46. Davis, 442 U.S. at 245 (quoting Bivens, 403 U.S. at 396).

47. 446 U.S. 14 (1980).

48. Carlson, 446 U.S. at 18–12.

49. 462 U.S. 367 (1983).

50. Id. at 372.

51. 462 U.S. 296 (1983).

52. 483 U.S. 669 (1987).

53. 487 U.S. 412 (1988).

54. Id. at 421–29.

55. 510 U.S. 471 (1994).

56. 534 U.S. 61 (2001).

57. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001) (describing rationale of Meyer).

58. 551 U.S. 537 (2007).

59. See also Hui v. Castaneda, 130 S. Ct. 1845 (2010) (holding federal statute made 

Federal Tort Claims Act exclusive remedy for claims against U.S. health service personnel, 

thereby precluding Bivens claims against these officials).

60. 132 S. Ct. 617 (2012).

61. The Court found that California tort law, which reflects general tort law principles, 

provided an adequate alternative remedy. Minneci, 132 S. Ct. at 625. Although state tort 

remedies have limitations, so does the Bivens remedy. For example, Eighth Amendment 

Bivens claims asserted by prisoners (1) require a showing of deliberate indifference, not 

mere negligence; (2) can’t be based on respondeat superior liability; and (3) “ordinarily may 

not seek damages for mental or emotional injury unconnected with physical injury.” Id. To 

justify rejection of the Bivens remedy, state-law remedies and the Bivens remedy “need not 

be perfectly congruent.” Id. The Court, however, left open the possibility that it may imply 

a Bivens remedy if there are greater disparities between the Bivens and state law claim than 

the disparities in Minneci. Id. at 626.

62. The only difference between Carlson and Minneci is that the defendants in Carlson

were federal governmental prison officials, whereas the defendants in Minneci were employees of a privately operated federal prison. While the Court in Carlson stated that remedies for constitutional violations should not “be left to the vagaries of the law of the states,” 

Carlson, 446 U.S. at 23, the Court in Minneci did just that, holding that the availability of 

state common law tort remedies justified rejection of the Bivens remedy.

63. Minneci, 132 S. Ct. at 621 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

64. Id.
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65. Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir. 2012) (en banc) (noting Supreme 

Court has not created another Bivens claim in 32 years since Carlson, and “has reversed 

more than a dozen appellate decisions that had created new actions for damages. Whatever 

presumption in favor of a Bivens-like remedy may have once existed has long since been 

abrogated.”). See also Wood v. Moss, 134 S. Ct. 2056, 2066 (2014) (assuming, without deciding, that Bivens doctrine extends to First Amendment claims); Reichle v. Howard, 132 S. Ct. 

2088, 2093 N.Y. (2012) (observing that Supreme Court has never extended Bivens doctrine 

to First Amendment claims).

66. 556 U.S. 662 (2009).

67. Id. at 675 (2009) (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)).

68. Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1981).

69. See, e.g., Wilson v. Layne, 526 U.S. 603, 609 (1999); Malley v. Briggs, 475 U.S. 335, 

340 n.2 (1986); Harlow v. Fitzgerald, 457 U.S. 800, 818 n.20 (1982).

70. Butz v. Economou, 438 U.S. 478, 504 (1978).

71. See, e.g., Wood v. Moss, 134 S. Ct. 2056 (2014); Reichle v. Howards, 132 S. Ct. 2088 

(2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011); Pearson v. Callahan, 555 U.S. 223 (2009); 

Anderson v. Creighton, 483 U.S. 635 (1987).

72. Heck v. Humphrey, 512 U.S. 477 (1994).

73. See infra Chapter 16.

74. See, e.g., Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).

75. See infra Chapter 17.

76. Chin v. Bowen, 833 F.2d 21, 23–24 (2d Cir. 1987). Accord Bieneman v. City of Chi., 

864 F.2d 463, 469 (7th Cir. 1988), cert. denied, 490 U.S. 1080 (1989).

77. See infra Chapter 20.

78. Carlson, 446 U.S. at 21–22.

Chapter 3: Section 1983: Elements of Claim, Functional Role, Pleading, and 

Jurisdiction, p. 12

79. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros. v. Brooks, 436 U.S. 149, 155 

(1978); Gomez v. Toledo, 446 U.S. 635, 640 (1980). If a § 1983 complaint “does not state 

a constitutional claim it is subject to dismissal under Rule 12(b)(6) [for failure to state a 

proper cause of action], not Rule 12(b)(1),” for lack of subject-matter jurisdiction. Doe v. 

Metro. Police Dep’t, 445 F.3d 460, 467 (D.C. Cir. 2006).

80. See Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002) (referring to four 

elements of § 1983 claim) (citing 1 Martin Schwartz, Section 1983 Litigation: Claims and 

Defenses, § 1.4 at 12 (3d ed. 1997)).

81. See infra Chapter 11.

82. Valance v. Wisel, 110 F.3d 1269, 1278–79 (7th Cir. 1997); Larez v. Holcomb, 16 F.3d 

1513, 1517–18 (9th Cir. 1994); Ruggiero v. Krzeminski, 928 F.2d 558, 562 (2d Cir. 1991); 

Shaw v. Leatherberry, 706 N.W. 2d 299, 304 (Wis. 2005). See also Hartman v. Moore, 547 U.S. 

250, 265–66 (2006) (requiring plaintiff to plead and prove “absence of probable cause” as an 

element of a Bivens First Amendment retaliatory prosecution claim); Crawford-El v. Britton, 

523 U.S. 574, 594 (1998) (rejecting imposition of “clear and convincing evidence” burden 

on plaintiffs who assert wrongful motive claim subject to qualified immunity defense raised 

on summary judgment); Am. Fed’n of State, Cnty. & Mun. Emps. v. Scott, 717 F.3d 851, 880 
Notes

207

(11th Cir. 2013) (plaintiff bears burden of persuasion on every element of § 1983 claim); 

Clark v. Mann, 562 F.2d 1104, 1117 (8th Cir. 1977) (§ 1983 plaintiffs “ordinarily retain the 

burden of proof throughout the trial”). See generally Schaffer v. Weast, 546 U.S. 49, 57 (2005) 

(Individuals with Disabilities Education Act action) (referring to “default rule” that “plaintiffs bear the burden of persuasion regarding the essential aspects of their claims”).

83. Parratt v. Taylor, 451 U.S. 527, 534 (1981), overruled on other grounds by Daniels v. 

Williams, 474 U.S. 327, 328 (1986).

84. Parratt, 451 U.S. at 534.

85. Daniels, 474 U.S. at 328–30. See also Cnty. of Sacramento v. Lewis, 523 U.S. 833, 

846–55 (1998); Davidson v. Cannon, 474 U.S. 344, 347 (1986). See also infra Chapter 5, § IV.

86. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 

(1977) (race); Washington v. Davis, 426 U.S. 229, 240–42 (1976) (race); Personnel Adm’r of 

Mass. v. Feeney, 442 U.S. 256, 274 (1979) (gender).

87. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

88. Id. 

89. See Wilson v. Garcia, 471 U.S. 261, 273 (1985). See infra Chapter 5.

90. Albright v. Oliver, 510 U.S. 266, 271 (1994); Graham v. Connor, 490 U.S. 386, 393–94 

(1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Chapman v. Houston 

Welfare Rights Org., 441 U.S. 600, 608 (1979) (§ 1983 “creates no substantive rights; it 

merely provides remedies for deprivations of rights established elsewhere”); Baker v. McCollan, 443 U.S. 137, 140, 144 n.3 (1979).

91. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989); Johnson v. City of Shelby, 

743 F.3d 59 (5th Cir. 2013); Wax ’n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 

2000); Baxter v. Vigo Cnty. Sch. Corp., 26 F.3d 728, 732 n.3 (7th Cir. 1994); Azul-Pacifico, 

Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), cert. denied, 506 U.S. 1081 

(1993); Santiago v. N.Y. State Dep’t of Corr. Servs., 945 F.2d 25, 30–31 (2d Cir. 1991); Tarpley v. Greene, 684 F.2d 1, 9–11 (D.C. Cir. 1982); Pauk v. Bd. of Trustees of City Univ. of N.Y., 

654 F.2d 856, 865 (2d Cir. 1981).

92. 491 U.S. 701, 731–34 (1989).

93. See, e.g., McCormick v. Miami Univ., 693 F.3d 654, 658–61 (6th Cir. 2012) (and 

cases cited therein) (§ 1983 exclusive remedy to enforce § 1981 against state actors in either 

official or individual capacity suits).

94. 550 U.S. 544 (2007).

95. 556 U.S. 662 (2009).

96. Erickson, 551 U.S. 89 (2007) (prisoner complaint asserting Eighth Amendment 

medical treatment claim satisfied notice pleading standard); Kikumura v. Osagie, 461 F.3d 

1269, 1294 (10th Cir. 2006) (prisoner Eighth Amendment deliberate indifference medical 

treatment claim: plaintiff “is merely required to provide ‘a short and plain statement’ of his 

Eighth Amendment claims, Fed. R. Civ. P. 8(a), and ‘[m]alice, intent, knowledge, and other 

conditions of mind of a person may be averred generally’ in the complaint, Fed. R. Civ. P. 

9(b)”; allegations that defendant “knew” that plaintiff “‘require[d] prompt medical attention and . . . that delay would exacerbate [his] health problem,’ but deliberately ‘disregarded 

that risk’” satisfied “pleading requirement of Rule 8(a) for the subjective component of a 

deliberate indifference claim”).
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97. 507 U.S. 163 (1993).

98. Id. at 164.

99. Slade v. Hampton Roads Reg’l Jail, 407 F.3d 243, 252 (4th Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

100. 534 U.S. 506 (2002).

101. See Erickson, 551 U.S. at 93–94; Jones v. Bock, 549 U.S. 199, 212–13 (2007); Hill v. 

McDonough, 547 U.S. 573, 583 (2006); Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 66–67 (1st Cir. 2004); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 

2002). The Court in Leatherman, however, left open whether a heightened pleading standard applies to claims asserting individual liability, specifically personal-capacity claims in 

which officials may assert the affirmative defense of qualified immunity. Applying the rationale of Leatherman and Swierkiewicz, the majority of courts of appeals held that, like other 

§ 1983 claims, the notice pleading standard applies to personal-capacity claims subject to 

qualified immunity. As discussed in this section, infra, claims subject to qualified immunity 

are now subject to the plausibility standard.

102. 550 U.S. 544 (2007).

103. Id. at 555.

104. Id.

105. Id. at 559 (citing Frank H. Easterbrook, Comment, Discovery as Abuse, 69 B.U. L. 

Rev. 635–38 (1989)).

106. 355 U.S. 41 (1957).

107. Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45–46).

108. Id. at 563.

109. Id. at 570.

110. 551 U.S. 89 (2007).

111. Id. at 94.

112. The Court in Erickson noted that the complaint also included other, more specific 

factual allegations.

113. Erickson, 551 U.S. at 94 (quoting Estelle, 429 U.S. at 106). 

114. The circuit courts rather consistently applied Twombly to § 1983 claims. See, e.g., 

Alvarado Aguilera v. Negron, 509 F.3d 50, 53 (1st Cir. 2007); Estate of Sims v. Cnty. of Bureau, 506 F.3d 509, 512 (7th Cir. 2007); Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th 

Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007) (plaintiffs “have met their 

obligation to provide grounds for their entitlement to relief by presenting factual allegations sufficient to raise their right to relief above a speculative level”), cert. denied, 128 S. 

Ct. 1223 (2008).

115. 556 U.S. 662 (2009).

116. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

117. For detailed complaint allegations, see infra text accompanying notes 1007–16, and 

discussion of supervisory liability.

118. Iqbal, 556 U.S. at 684.

119. Id. at 678.

120. Id. at 678–79.

121. Id. at 679.
Notes

209

122. Id. at 676.

123. Id. at 676–77. On the issue of supervisory liability, see infra Chapter 12.

124. Id. at 684–85.

125. Id. at 685.

126. Id. at 686–87. “‘The costs of diversion are only magnified when Government officials are charged with responding to . . . a national and international security emergency 

unprecedented in the history of the American Republic.’” (quoting Iqbal v. Hasty, 490 F.3d 

143, 179 (2d Cir. 2007) (Cabranes, J., concurring), id. But see id. at 700 (Breyer, J., dissenting) (Trial court “can structure discovery in ways that diminish the risk of imposing unwarranted burdens upon public officials. A district court, for example, can begin discovery 

with lower level Government defendants before determining whether a case can be made to 

allow discovery related to higher level Government officials.”) (citations omitted). Qualified 

immunity is analyzed infra Chapter 16.

127. The Court said that it was “important to note” that it was not expressing any view 

on the sufficiency of the complaint against the subordinate officers. Iqbal, 556 U.S. at 684. It 

remanded the case to the Second Circuit to decide whether to remand to the district court 

to allow plaintiff to “seek leave to amend his deficient complaint.” Id. at 687. 

128. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

129. Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (Stating that because case was 

decided below on motion to dismiss for failure to state a claim, pertinent question is “‘not 

whether [plaintiff] will ultimately prevail’” on due process claim [Scheuer v. Rhodes, 416 

U.S. 232, 236 (1974)], “but whether his complaint was sufficient to cross the federal court’s 

threshold.” [citing Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002)]; “Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 

8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible ‘short and 

plain’ statement of the plaintiff’s claim, not an exposition of his legal argument.”).

130. See Claire Prestel, Pleading: Where Things Stand, 79 U.S.L.W. 1871 (Jan. 11, 2011).

131. Iqbal, 556 U.S. at 679.

132. Id. at 696–97 (Souter, J., dissenting). Justice Souter’s dissent states that the only 

exception to the principle “that a court must take the [complaint] allegations as true, no 

matter how skeptical the court may be,” is for “allegations that are sufficiently fantastic to 

defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel. That is not what we have here.” Id. at 696.

133. 550 U.S. 544 (2007).

134. 556 U.S. 662 (2009).

135. 507 U.S. 163 (1993).

136. See AE v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

137. 507 U.S. 163 (1993).

138. 556 U.S. 662 (2009). 

139. See Randall v. Scott, 610 F.3d 701, 705–10 (11th Cir. 2010) (claims subject to qualified immunity governed by Iqbal plausibility standard; prior Eleventh Circuit decisions 

imposing heightened pleading standard for these claims are no longer good law in light of 

Iqbal).
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210

140. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 597–98 (1998); Schultea v. Wood, 

47 F.3d 1427, 1433–34 (5th Cir. 1995) (en banc); Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 

2005). See infra Chapter 12.

141. Dennis v. Sparks, 449 U.S. 24, 27–29 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 

144, 152 (1970). See infra Chapter 7.

142. See infra Chapter 22.

143. See, e.g., Fed. R. Evid. 801(d)(2)(E) (coconspirator hearsay exemption).

144. See, e.g., Freger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008) (vague and conclusory 

allegations not sufficient to plead § 1983 conspiracy; § 1983 conspiracy pleading standards 

are “relatively strict,” requiring some degree of specificity); Reasonover v. St. Louis Cnty., 

447 F.3d 569, 582 (8th Cir. 2006) (§ 1983 conspiracy claims require plaintiff to “‘allege 

with particularity and specifically demonstrate material facts that the defendants reached 

an agreement’”) (quoting Marti v. City of Maplewood, 57 F.3d 680, 685 (8th Cir. 1995)); 

Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 325 (2d Cir. 2002) (“complaints containing 

only conclusory, vague, or general allegations that defendants have engaged in a conspiracy 

to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct”); 

Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989). But see Walker v. Thompson, 288 

F.3d 1005, 1007 (7th Cir. 2002) (notice pleading governs § 1983 conspiracy claims).

145. Twombly, 550 U.S. at 556 (complaint must allege “plausible grounds to infer an 

agreement”; “a bare assertion of conspiracy will not suffice”).

146. See Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012) (en banc); Geinosky 

v. City of Chi., 675 F.3d 743, 749 (7th Cir. 2012); Cooney v. Rossiter, 583 F.3d 967, 970–71 

(7th Cir. 2009).

147. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1970). 

Accord Erickson v. Pardus, 551 U.S. 89, 94 (2007). District courts should read the pleadings 

of a pro se plaintiff “liberally” and “interpret them to raise the strongest arguments that 

they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Accord McPherson v. 

Coombe, 174 F.3d 276, 280 (2d Cir. 1999). However, pro se status does not exempt a party 

from compliance with procedural rules. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

148. 551 U.S. 89 (2007).

149. Id. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

150. Williams v. Curtis, 631 F.3d 380, 383 (6th Cir. 2011) (citations omitted).

151. See Gee v. Pacheco, 627 F.3d 1178, 1185–86 (10th Cir. 2010) (ruling that context 

is important; including that prisoners “ordinarily know what has happened to them” and 

“will have learned how the institution has defended the challenged conduct when they pursue the administrative claims that they must bring as a prerequisite to filing suit”; although 

“a pro se prisoner may fail to plead his allegations with the skill necessary to state a plausible 

claim even when the facts would support one[,] ordinarily the dismissal of a pro se claim 

under Rule 12(b)(6) should be without prejudice”) (citations omitted); Hebbe v. Pliler, 627 

F.3d 338, 342 (9th Cir. 2010) (ruling that while Twombly-Iqbal imposed “higher” plausibility standard, they did not alter court’s obligation to construe pro se complaints “liberally 

when evaluating them under Iqbal”) (citing McGowan v. Hulick, 612 F.3d 636, 640–42 (7th 

Cir. 2010); Bustos v. Martini Club, Inc., 599 F.3d 458, 461–62 (5th Cir. 2010); Casanova v. 
Notes

211

Ulibarri, 595 F.3d 1120, 1124 n.2, 1125 (10th Cir. 2010); Capogrosso v. Sup. Ct. of N.J., 588 

F.3d 180, 184 & n.1 (3d Cir. 2009); Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009)).

152. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 615–20 (1979). 

153. See infra Chapter 14.

154. See infra Chapter 21.

155. 263 U.S. 413 (1923).

156. 460 U.S. 462 (1983). When a federal court § 1983 action relates to a pending or 

completed state court proceeding, preclusion (see infra Chapter 18) and Younger abstention 

(see infra Chapter 21) may also be pertinent defenses to § 1983 claims.

157. 544 U.S. 280 (2005).

158. Id. at 291.

159. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 1.07 (4th 

ed. 2014).

160. Exxon, 544 U.S. at 292–94. Accord Skinner v. Switzer, 131 S. Ct. 1289, 1297 (2011); 

Lance v. Dennis, 546 U.S. 459, 464 (2006).

161. Exxon Mobil, 544 U.S. at 281. Accord Lance, 546 U.S. at 646. See Great W. Mining 

& Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 166 (3d Cir. 2010) (Rooker-Feldman

doctrine applies when (1) federal plaintiff lost in state court; (2) plaintiff alleges injury 

caused by state court judgment; (3) state court judgment was rendered before the federal 

suit was filed; and (4) federal plaintiff invites district court to review and reject state court 

judgment); Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (for 

Rooker–Feldman doctrine to apply: (1) plaintiff must have lost in state court; (2) the state 

court judgment must have been rendered before the district court proceeding commenced; 

(3) plaintiff must complain of injuries caused by the state court judgment; and (4) plaintiff 

must invite district court review and rejection of the state court judgment); Kougasian v. 

TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004) (“Rooker–Feldman thus applies only when 

the federal plaintiff both asserts as her injury legal error or errors by the state court and 

seeks as her remedy relief from the state court judgment.”).

162. Exxon Mobil, 544 U.S. at 292 (quoting McClellan v. Carland, 217 U.S. 268, 282 

(1910)).

163. Id. at 287. See also Skinner, 131 S. Ct. at 1297 (observing Court has invoked Rooker-Feldman doctrine only twice, “in the two cases from which the doctrine takes its name,” 

i.e., in Rooker and Feldman).

164. See Skinner, 131 S. Ct. at 1297; Lance, 546 U.S. at 464 (noting Court in Exxon Mobil

found that Rooker–Feldman “is a narrow doctrine”).

165. See also Skinner, 131 S. Ct. at 1298 n.10 & n.11. See, e.g., Coggeshall v. Mass. Bd. 

of Registration of Psychologists, 604 F.3d 658, 663–64 (1st Cir. 2010) (although federal suit 

was not barred by Rooker-Feldman doctrine, it was dismissed under Younger abstention); 

Knutson v. City of Fargo, 600 F.3d 992, 995–96 (8th Cir.) (plaintiffs’ § 1983 claims not 

barred by Rooker-Feldman doctrine but were barred by preclusion), cert. denied, 131 S. Ct. 

357 (2010). 

166. Morrison v. City of N.Y., 591 F.3d 109, 115 (2d Cir. 2010).

167. Brown v. Bowman, 668 F.3d 437, 442–44 (7th Cir. 2012).
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168. Kougasian, 359 F.3d at 1140 (“If a federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief from a state court judgment 

based on that decision, Rooker-Feldman bars subject-matter jurisdiction in federal district 

court. If, on the other hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act 

or omission by an adverse party, Rooker-Feldman does not bar jurisdiction . . . Rooker-Feldman thus applies only when the federal plaintiff both asserts as [an] injury legal error or 

errors by the state court and seeks as [a] remedy relief from the state court judgment.” 

(citations omitted)). Accord Guttman v. Khalsa, 446 F.3d 1027, 1031–32 (10th Cir. 2006); 

Kenmen Eng’g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002); Garry v. Geils, 82 F.3d 

1362, 1365 (7th Cir. 1996).

169. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 167 (3d Cir. 

2010) (finding action not barred by Rooker-Feldman doctrine because plaintiff alleged state 

court losses were result of “corrupt conspiracy” between defending attorneys and certain 

state court judges to exchange favorable rulings and future employment as arbitrators; federal plaintiff did not allege merely that state court decisions were erroneous or unconstitutional, but that plaintiff was denied independent right to impartial forum: “The alleged 

agreement to reach a predetermined outcome in a case would itself violate Great Western’s 

constitutional rights, independently of the subsequent state court decisions.” Id. at 172). 

See also Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 606 F.3d 301, 310 

(6th Cir. 2010) (plaintiffs’ federal court claims not barred by Rooker-Feldman doctrine because they did not seek review or reversal of state court decisions, and focused on conduct 

of public officials leading up to that decision, cert. denied, 131 S. Ct. 804 (2010); Johnson 

v. Orr, 551 F.3d 564, 567–70 (7th Cir. 2008) (Rooker-Feldman doctrine barred plaintiff’s 

§ 1983 action because plaintiff did not suffer any injury independent of state court order 

and federal suit sought to overturn that order); Powers v. Hamilton Cnty. Pub. Defender 

Comm’n, 501 F.3d 592, 606 (6th Cir. 2007) (Rooker-Feldman doctrine inapplicable because 

plaintiff did not assert state court judgment violated his constitutional rights, and focused 

on conduct leading up to state judgment, namely, public defender’s failure to seek indigency hearing on behalf of indigent criminal defendant facing incarceration for unpaid fines. 

“Assertions of injury that do not implicate state-court judgments are beyond the purview 

of the Rooker-Feldman doctrine.”), cert. denied, 555 U.S. 813 (2008).

170. 131 S. Ct. 1289 (2011).

171. See infra Chapter 16 (Heck doctrine).

172. Skinner, 131 S. Ct. at 1298 (citations omitted). 

173. Exxon Mobil, 544 U.S. at 286 n.1 (citing D.C. Court of Appeals v. Feldman, 460 

U.S. 462, 483 n.16 (1983)). See also Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007) 

(Rooker-Feldman doctrine applies even when federal court plaintiff didn’t have reasonable 

opportunity to litigate claim in state court because in those circumstances plaintiff should 

appeal through state court system and seek review in U.S. Supreme Court). 

174. See Campbell v. City of Spencer, 682 F.3d 1278, 1282–83 (10th Cir. 2012) (discussing uncertainty over meaning of “inextricably intertwined”; rather than trying to “untangle 

the meaning” of this phrase, court applied Exxon Mobil’s reformulations of Rooker-Feldman

doctrine, which eschews “inextricably intertwined” language). The Eighth Circuit stated 

that a federal claim is “inextricably intertwined” with the state court judgment when “the 
Notes

213

federal claim succeeds only to the extent that the state court wrongly decided the issues 

before it.” Robins v. Ritchie, 631 F.3d 919, 925 (8th Cir. 2011) (holding federal court § 1983 

claims barred by Rooker-Feldman doctrine because they were “inextricably intertwined” 

with state law claims in state court action). See also Allstate Ins. Co. v. W. Va. State Bar, 233 

F.3d 813, 819 (4th Cir. 2000). The Third Circuit stated that the phrase “inextricably intertwined” has no independent meaning and simply describes federal court claims that meet 

the Rooker-Feldman doctrine elements outlined in Exxon-Mobil. Great W. Mining, 615 F.3d 

at 170. See also Bolden v. City of Topeka, 441 F.3d 1129, 1140 (10th Cir. 2006).

175. Exxon Mobil, 544 U.S. at 291; Guttman, 446 F.3d at 1032; Federacion de Maestros 

de P.R. v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 26 (1st Cir. 2005) (for Rooker–Feldman doctrine to apply, state proceedings must have “ended with respect to the issues 

that the federal plaintiff seeks to have reviewed in federal court, even if other matters remain 

to be investigated”). 

176. Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658, 663–64 (1st 

Cir. 2010) (holding district court erred in relying upon Rooker-Feldman doctrine, because 

when federal suit was filed, state case was pending before state appeals court; “It is a condition precedent to the application of the Rooker-Feldman doctrine that, at the time the 

federal-court suit is commenced, the state-court proceedings have ended.”; fact that state 

court proceedings were completed during the federal litigation is irrelevant; although case 

was not barred by Rooker-Feldman, it was barred by Younger abstention) (citations omitted) 

(emphasis added); Nicholson v. Shafe, 558 F.3d 1266, 1279 (11th Cir. 2009); Guttman v. 

Khalsa, 446 F.3d 1027, 1031–32 (10th Cir. 2006).

177. Johnson v. De Grandy, 512 U.S. 997, 1006 (1994); Holiday Amusement Co. of 

Charleston, Inc. v. South Carolina, 40 F.3d 534, 537 (4th Cir. 2005); Twin City Fire Ins. Co. 

v. Adkins, 400 F.3d 293, 297 (6th Cir. 2005).

178. 546 U.S. 459 (2006).

179. The Court in Lance hedged its ruling ever so slightly, stating that it need not decide 

“whether there are any circumstances, however limited, in which Rooker–Feldman may be 

applied against a party not named in an earlier state proceeding—e.g., where an estate takes 

a de facto appeal in a district court of an earlier state court decision involving the decedent.” 

Id. at 466 n.2.

180. Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 n.3 (2002).

181. 383 U.S. 715 (1966).

182. 28 U.S.C. § 1367(a) (1990).

183. Gibbs, 383 U.S. at 725.

184. See Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40 (2009) (district 

court’s decision whether to exercise supplemental jurisdiction after dismissing all jurisdiction-conferring claims “is purely discretionary,” and thus reviewable on appeal for abuse of 

discretion).

185. 28 U.S.C. § 1367(c) (1990).

186. See Jinks v. Richland Cnty., S.C., 538 U.S. 456, 465–67 (2003) (supplemental jurisdiction may be asserted in § 1983 actions against municipalities).

187. See Exxon Mobil Corp. v. Allapattah, 545 U.S. 546, 558–59 (2005) (recognizing that 

§ 1367 overturned Finley v. United States, 490 U.S. 545 (1989), which had rejected pendent 
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party jurisdiction in actions under Federal Tort Claims Act; stating “The last sentence of 

§ 1367 makes it clear that the grant of supplemental jurisdiction extends to claims involving 

joiner or intervention of additional parties . . . . [Section] 1367(a) is a broad jurisdictional 

grant with no distinctions drawn between pendent-claim and pendent-party cases. . . . The 

terms of § 1367 do not acknowledge any distinction between pendent jurisdiction and the 

doctrine of so-called ancillary jurisdiction.”).

188. 28 U.S.C. § 2633.

189. 522 U.S. 156 (1997).

190. Federal courts in New York, however, have been very reluctant to exercise supplemental jurisdiction over state judicial review claims. See Morningside Supermarket Co. v. 

N.Y. State Dep’t of Health, 432 F. Supp. 2d 334, 346–47 (S.D.N.Y. 2006) (citing cases). See 

also Coastal Comm. Serv., Inc. v. City of N.Y., 658 F. Supp. 2d 425 (E.D.N.Y. 2009).

191. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 536 (2002). Cf. Jinks, 538 U.S. at 

466–67 (supplemental jurisdiction may be asserted in § 1983 action against municipality).

192. See Jinks, 538 U.S. at 461, 464–67 (§ 1367(d) tolling provision is within Congress’s 

legislative power, does not impermissibly intrude on states’ rights, and encompasses claims 

against municipal entities).

193. Raygor, 534 U.S. at 544.

194. Jinks, 538 U.S. at 465–67.

195. 28 U.S.C. § 1441(a)–(b) (1988).

196. City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 172–73 (1997).

197. Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 389–90 (1998).

198. Lapides v. Bd. of Regents, 535 U.S. 613, 619–20 (2002). See infra Chapter 13.

199. Haywood v. Drown, 556 U.S. 729, 734–35 (2009); Nat’l Private Truck Council, 

Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 588–89 (1995); Howlett v. Rose, 496 U.S. 356, 375 

(1990); Felder v. Casey, 487 U.S. 131, 139 (1988); Ark. Writers’ Project v. Ragland, 481 U.S. 

221, 234 (1987); Patsy v. Bd. of Regents, 457 U.S. 496, 506–07 (1982). See Steven H. Steinglass, Section 1983 Litigation in State Courts (2006).

200. Steinglass, supra note 199, § 10.1, p. 10-1 (quoting Henry M. Hart, Jr., The Relations 

Between State and Federal Law, 54 Colum. L. Rev. 489, 508 (1954)).

201. Felder v. Casey, 487 U.S. 131, 138, 145 (1988).

202. Id. at 138 (state notice-of-claim rule not applicable to § 1983 claims). See also Haywood, 556 U.S. at 736–42 (New York statute barring assertion of § 1983 personal-capacity 

claims against correction officers in New York courts held invalid under Supremacy Clause 

because state policy conflicts with policies underlying § 1983). See generally Brown v. W. Ry. 

of Ala., 338 U.S. 294, 298–99 (1949) (local practice rules may not unduly burden the federal 

right). See infra Chapter 17.

203. Howlett, 496 U.S. at 375–76.

204. 496 U.S. 356 (1990).

205. See Nat’l Private Truck Council, Inc. v. Okla. Tax Comm’n, 515 U.S. 582, 586 (1995) 

(policies of Tax Injunction Act apply in state court § 1983 actions challenging state tax policies); Howlett, 496 U.S. at 383 (state law immunity defense doesn’t apply to § 1983 municipal liability claim); Felder, 487 U.S. at 138 (state notice-of-claim rules don’t apply in state 

or federal court § 1983 actions); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) 
Notes

215

(whether plaintiffs file § 1983 claim in state or federal court, states and state entities not 

suable “persons” under § 1983). See also Haywood, 556 U.S. 729 (state law may not prohibit 

§ 1983 personal-capacity claims against corrections officers in state court). State courts, 

however, aren’t obligated to grant § 1983 defendants an interlocutory appeal from the denial of qualified immunity, even when federal law would permit an interlocutory appeal in 

federal court. Johnson v. Fankel, 520 U.S. 911, 913 (1997). See infra Chapter 16.

Chapter 4: Section 1983 Plaintiffs, p. 27

206. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971) (legal aliens); Plyler v. Doe, 

457 U.S. 202 (1982) (illegal aliens). See also 1 Martin A. Schwartz, Section 1983 Litigation: 

Claims and Defenses § 2.02 (4th ed. 2014).

207. See discussion in 1 Schwartz, supra note 206, § 2.02. Although labor unions have 

been permitted to sue under § 1983, the Tenth Circuit held that an unincorporated association may not sue under § 1983. Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006).

We conclude . . . that the Dictionary Act of 1871, the common understanding regarding unincorporated associations in 1871, and the legislative history of Section 1 of the Civil Rights Act 

of 1871 fail to indicate a congressional intent to include unincorporated associations within 

the ambit of the term “person” set forth in 42 U.S.C. § 1983.

Id. at 1216.

208. Inyo Cnty., Cal. v. Paiute-Shoshone Indians, 538 U.S. 701, 712 (2003) (citing Will 

v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989)).

209. Id. See also Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222, 1234–36 

(10th Cir. 2010) (Indian Tribe’s challenge to Oklahoma cigarette tax enforcement scheme 

not cognizable under § 1983: tribe sought to vindicate its sovereign immunity and thus was 

not “person” entitled to sue under § 1983; “. . . a ‘person’ within the meaning of § 1983 possesses neither “sovereign rights’ nor ‘sovereign immunity.’”); Keweenaw Bay Indian Cmty. v. 

Rising, 569 F.3d 589, 596 (6th Cir. 2009) (claim by Indian tribe (the “Community”), arising 

out of Michigan’s withholding of federal funds owed to Community, which state offset 

from back taxes it said Community owed, and seeking to prohibit defendants, state officials, 

from imposing sales and use taxes on tribe’s property and services; Sixth Circuit remanded 

case to district court “to determine whether the Community was entitled to the federal 

funds (a) only as a result of its sovereignty, or (b) simply because it provides certain social 

services. If it is the latter, then Community’s § 1983 suit would not be in any way dependent 

on its status as a sovereign, and it should be considered a ‘person’ within the meaning of that 

statute, so long as other private, nonsovereign entities could likewise sue under § 1983.”); 

Skokomish Indian Tribe v. United States, 410 F.3d 506, 514–15 (9th Cir. 2005) (en banc) 

(holding tribe can’t assert treaty-based rights against United States under § 1983 because 

it’s not a “person” entitled to sue under § 1983 for violation of sovereign prerogative; nor 

were tribe members entitled to sue because asserted fishing treaty rights were communal, 

even though individual members benefit from them).

210. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 17–18 (2004).

211. See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984); Warth v. Seldin, 422 U.S. 490, 

498–500 (1975). Accord Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1442 

(2011); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992); Daimler Chrysler Corp. 
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216

v. Cuno, 547 U.S. 332, 342 (2006). The Supreme Court has taken a narrow view of taxpayer 

standing. Ariz. Christian Sch., 131 S. Ct. at 1442–49 (state taxpayers have standing only 

when they challenge state spending under Establishment Clause and not, as in instant case, 

when they challenge tax credit policy).

212. See Erwin Chemerinsky, Federal Jurisdiction, § 2.3.4 (5th ed. 2007). Exceptions to 

the rule against third-party standing allow a party to assert the rights of a third party when 

the rights of the litigant before the court and the rights of the third party are closely related 

(e.g., physician and patient) or where an obstacle prevents the third party from asserting 

her own claim. Singleton v. Wulff, 428 U.S. 106, 113–16 (1976).

213. 461 U.S. 95 (1983).

214. Id. at 98.

215. Id. at 113.

216. Id. at 101–02.

217. Id. at 105.

218. Id. 

219. Id. at 98.

220. Id. at 111. The Court relied on its prior decisions in O’Shea v. Littleton, 414 U.S. 488 

(1974), and Rizzo v. Goode, 423 U.S. 362 (1976).

221. Lyons, 461 U.S. at 111.

222. Id. at 105, 106.

223. Susan B. Anthony List v. Driehaus, No. 13-193, 2014 WL 2675871 (S. Ct. June 16, 

2014).

Chapter 5: Constitutional Rights Enforceable Under § 1983, p. 29

224. See infra Chapter 7.

225. McDonald v. City of Chi., 130 S. Ct. 3020 (2010). See also District of Columbia v. 

Heller, 554 U.S. 570 (2008) (Second Amendment guarantees individual right to possess gun 

for personal safety, not just for military service). Since McDonald and Heller there has been 

an increase in § 1983 actions challenging state and local gun control legislation. See, e.g.,

Kachalsky v. Cnty. of Westchester, 701 F.3d 81 (2d Cir. 2012).

226. 498 U.S. 439 (1991).

227. Id. at 446–47.

228. 493 U.S. 103 (1989).

229. Id. at 107.

230. See Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136, 149 (2d Cir. 

2006) (Sotomayor, J.) (“‘A claim under the Supremacy Clause that federal law preempts a 

state regulation is distinct from a claim for enforcement of that federal law.’”) (quoting W. 

Airlines, Inc. v. Port Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir. 1987)). See also infra 

Chapter 6.

231. 468 U.S. 992 (1984).

232. The EHA was subsequently renamed the Individuals with Disabilities Education 

Act, 20 U.S.C. § 1400 (2004).

233. 555 U.S. 246 (2009). 

234. Id. at 256 (quoting Smith v. Robinson, 468 U.S. 992, 1012 (1984)).
Notes

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235. Id. at 252 (quoting Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120 (2005)).

236. Id. at 252–53.

237. Id. at 254 (citing Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 

453 U.S. 1, 6 (1981); Smith, 468 U.S. at 1011–12; Rancho Palos Verdes, 544 U.S. at 122)). Of 

these three decisions, only Smith raised the issue of whether the particular federal statutory 

scheme precluded constitutional (as opposed to federal statutory) claims under § 1983.

238. Fitzgerald, 555 U.S. at 256 (quoting Rancho Palos Verdes, 544 U.S. at 121 and Smith, 

468 U.S. at 1012) (citations omitted). 

239. Whereas Title IX only reaches federally funded schools, § 1983 is not so limited. 

Title IX covers private schools, which are generally not suable under § 1983, which reaches 

only state action. Title IX does not authorize suit against individual officials, while § 1983 

allows claims against individual officials and municipal entities. Title IX has several exemptions not applicable in § 1983 actions. “For example, Title IX exempts elementary and 

secondary schools from its prohibition against discrimination in admissions; it exempts 

military service schools and traditionally single-sex public colleges from all of its provisions. Some exempted activities may form the basis of equal protection claims.” Fitzgerald,

555 U.S. at 257 (citations omitted). The standards of 

liability may not be wholly congruent. . . . [A] Title IX plaintiff can establish school district 

liability by showing that a single school administrator with authority to take corrective action 

responded to harassment with deliberate indifference. Gebser v. Lago Vista Independent School 

Dist., 524 U.S. 274, 290 (1998). A plaintiff stating a similar claim via § 1983 for violation of 

the Equal Protection Clause by a school district or other municipal entity must show that the 

harassment was the result of municipal custom, policy, or practice. Monell v. New York City 

Dept. of Social Servs., 436 U.S. 658, 694 (1978).

Id. at 257–58.

240. Id. at 258. The Court found that “[t]his conclusion is consistent with Title IX’s 

context and history.” Id. Title IX authorizes the Attorney General to intervene in private 

suits alleging gender discrimination under the Equal Protection Clause. This authorization implicitly acknowledges the availability of the § 1983 constitutional remedy. Moreover, 

Congress modeled Title IX after Title VI, which was routinely interpreted by the courts of 

appeals “to allow for parallel and concurrent § 1983 claims” (citations omitted). Id.

Fitzgerald did not decide whether the plaintiffs alleged an actionable § 1983 equal protection claim against the school superintendent and the school committee. 

ADEA: Prior to the Supreme Court’s decision in Fitzgerald, most lower federal courts 

held that the comprehensive remedial scheme of the Age Discrimination in Employment 

Act substantiates that Congress intended to preclude § 1983 Equal Protection Clause 

age-discrimination claims. Migneault v. Peck, 204 F.3d 1003 (10th Cir. 2000); Lafleur v. Tex. 

Dep’t of Health, 126 F.3d 758 (5th Cir. 1997); Zombro v. Balt. Police Dep’t, 868 F.3d 1364 

(4th Cir.), cert. denied, 493 U.S. 850 (1989). See also Ahlmeyer v. Nev. Sys. of Higher Educ., 

555 F.3d 1051 (9th Cir. 2009) (decided shortly after Fitzgerald but not citing it). However, 

post-Fitzgerald, the Seventh Circuit reached the opposite result, holding that the ADEA 

does not preclude assertion of § 1983 age-discrimination-in-employment constitutional 

claims. Levin v. Madigan, 692 F.3d 607, 611–22 (7th Cir. 2012), cert. dismissed, 134 S. Ct. 2 

(2013). Levin acknowledged that the ADEA itself is not enforceable under § 1983. Id. at 620.
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218

241. 490 U.S. 386 (1989).

242. Graham held that “all claims that law enforcement officers have used excessive 

force—deadly or not—in the course of an arrest . . . should be analyzed under the Fourth 

Amendment and its ‘reasonableness’ standard.” Graham, 490 U.S. at 395. See also Tennessee 

v. Garner, 471 U.S. 1, 7 (1985) (deadly force); Graham, 490 U.S. at 396–97. Fourth Amendment excessive force claims are subject to qualified immunity. Saucier v. Katz, 533 U.S. 194, 

203 (2001) (see infra Chapter 16).

243. Graham, 490 U.S. at 393.

244. Id. at 394. Excessive force claims asserted by convicted prisoners are governed by 

the Eighth Amendment prohibition against cruel and unusual punishment. To establish 

an Eighth Amendment violation, the plaintiff must show that the force was applied “maliciously and sadistically to cause harm” rather than “in a good-faith effort to maintain or 

restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992); Whitley v. Albers, 475 U.S. 

312, 320–21 (1986). Excessive force claims asserted by pretrial detainees are governed by 

the due process prohibition against the infliction of “punishment” on pretrial detainees. See 

generally Bell v. Wolfish, 441 U.S. 520, 535 (1979), discussed infra Chapter 5, § V.C.

245. See infra Chapter 5, § VI.

246. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 3.12 (4th 

ed. 2014).

247. See id.

248. Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006) (complaint must allege conspiracy 

to violate constitutional right); Cefau v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000); 

Young v. Cnty. of Fulton, 160 F.3d 899, 904 (2d Cir. 1998).

249. See, e.g., Baker v. McCollan, 443 U.S. 137, 146 (1979); Estelle v. Gamble, 429 

U.S. 97, 106 (1976); Voyticky v. Vill. of Timberlake, 412 F.3d 669, 678 (6th Cir. 2005) 

(intentional infliction of emotional distress does not itself give rise to § 1983 constitutional claim). Violations of state constitutional rights are not enforceable under § 1983. 

See, e.g., Armstrong v. Asselin, 734 F.3d 984, 989 (9th Cir. 2013); Radvansky v. City of 

Olmsted Falls, 395 F.3d 291, 314 (6th Cir. 2005) (“[A] claimed violation of a state constitutional right is not cognizable under § 1983.”); Bookman v. Shubzda, 945 F. Supp. 

999, 1009 (N.D. Tex. 1996).

250. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 129–30 (1992) (safe working conditions); DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 201–02 

(1989) (protection of children from parental abuse); Paul v. Davis, 424 U.S. 693, 711–12 

(1976) (defamation). The Supreme Court recognized substantive due process protection in 

high-speed police pursuit cases, but imposed a demanding burden on plaintiffs. See Cnty. 

of Sacramento v. Lewis, 523 U.S. 833, 853–54 (1998) (passengers killed or injured as result 

of high-speed police pursuit may assert substantive due process claim under “shocks-theconscience standard” and must show pursuing officer acted with intent to cause harm). 

251. Estelle, 429 U.S. at 106.

252. The Court in Estelle held that to establish a violation of the Eighth Amendment 

a prisoner must prove that prison officials were deliberately indifferent to the prisoner’s 

“serious medical needs.” Estelle, 429 U.S. at 106.

253. 443 U.S. 137 (1979).
Notes

219

254. Id. at 146.

255. 424 U.S. 693 (1976).

256. Id. at 711–12. The plaintiff in Paul asserted a procedural due process claim. Seeinfra

notes 295–97 and accompanying text.

257. Id. at 701.

258. 503 U.S. 115 (1992).

259. Id. at 128–30.

260. Id. at 128 (citing Daniels v. Williams, 474 U.S. 327, 332–33 (1986); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976)).

261. 408 U.S. 564 (1972).

262. Id. at 577.

263. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 538 

(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). See also

Zinermon v. Burch, 494 U.S. 113, 129–38 (1990) (demonstrating difficulty of determining 

whether conduct was “random and unauthorized”; majority held conduct not random and 

unauthorized, but four justices dissented). 

264. Zinermon, 494 U.S. at 125 (quoting Daniels, 474 U.S. at 331).

265. Id.

266. Id.

267. Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citations omitted). See 

also Swarthout v. Cooke, 131 S. Ct. 859, 860–62 (2011). 

268. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). See, e.g., Paul v. 

Davis, 424 U.S. 693, 712 (1976) (holding that “the interest in reputation asserted in this case 

is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process 

of law”).

269. See, e.g., Washington v. Harper, 494 U.S. 210, 221–22 (1990) (Due Process Clause 

confers on prisoners liberty interest in being free from involuntary administration of psychotropic drugs); Vitek v. Jones, 445 U.S. 480, 493–94 (1980) (Due Process Clause confers 

on prisoners liberty interest in not being involuntarily committed to state mental hospital).

270. Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (state law created liberty interest in 

“shortened prison sentence” that resulted from good time credits). See also Swarthout v. 

Cooke, 131 S. Ct. 859, 862 (2011); Wilkinson v. Austin, 545 U.S. 209, 221 (2005). 

271. Cleveland Bd. of Educ., 470 U.S. at 538 (citing Bd. of Regents v. Roth, 408 U.S. 564, 

577 (1972)).

272. 408 U.S. 564 (1972).

273. Id. at 577.

274. Goldberg v. Kelly, 397 U.S. 254, 264 (1970).

275. Mathews v. Eldridge, 424 U.S. 319, 332 (1976).

276. Bell v. Burson, 402 U.S. 535, 539 (1971).

277. Goss v. Lopez, 419 U.S. 565, 573–74 (1975).

278. Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11 (1978).

279. See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–39 (1985).

280. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). 

281. Id. at 760–62. 
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282. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001) (state’s breach of 

contract did not give rise to procedural due process claim because state law provided “ordinary breach-of-contract suit”); Ramirez v. Arlequin, 447 F.3d 19, 25 (1st Cir. 2006) (without 

allegation state would refuse to remedy breach, claim that state actor breached contract 

does not state procedural due process claim); Redondo-Borges v. United States Dep’t of 

Hous. & Urban Dev., 421 F.3d 1, 10 (1st Cir. 2005) (“the existence of a state contract, simpliciter, does not confer upon the contracting parties a constitutionally protected property 

interest”); Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8th Cir. 1995) (“It is well 

established that ‘a simple breach of contract does not give rise to the level of a constitutional 

deprivation.’” (quoting Med. Laundry Servs. v. Bd. of Trs. of Univ. of Ala., 906 F.2d 571, 573 

(11th Cir. 1990)).

283. 515 U.S. 472 (1995).

284. Id. at 484. Although under Sandin, mandatory language of a state prison regulation remains a necessary, though not sufficient, prerequisite for finding a liberty interest, post-Sandin the courts have routinely proceeded directly to the question of whether 

the sanction imposed “atypical and significant hardship” on the inmate. See decisions in 1 

Schwartz, supra note 246, § 3.05[c][4][b]. Before Sandin, the Supreme Court held that convicted prisoners only have a liberty interest in parole release if a state statute or regulation 

creates a reasonable expectation, rather than a mere possibility, of being granted parole. 

Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 11–12 (1979). See also

Swarthout v. Cooke, 131 S. Ct. 859, 861–62 (2011).

285. See, e.g., Hernandez v. Velasquez, 522 F.3d 556, 562–64 (5th Cir. 2008) (placement 

of prisoner serving life sentence for murder on lockdown status for thirteen months to prevent gang-related violence not “atypical and significant hardship” but “ordinary incident of 

prison life.”); Townsend v. Fuchs, 522 F.3d 765, 771 (7th Cir. 2008) (discretionary placement 

of inmate in nonpunitive temporary lock-up segregation while officials investigated his 

possible role in prison riot not deprivation of liberty); Hanrahan v. Doling, 331 F.3d 93, 97–

99 (2d Cir. 2003) (120 months solitary confinement is deprivation of liberty); Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999) (deprivation of “yard time” to inmate in solitary 

confinement is “atypical and significant hardship”); Jones v. Baker, 155 F.3d 810, 814–16 

(6th Cir. 1998) (over two-and-one-half years administrative segregation for prisoner implicated in killing of prison guard during prison riot not “atypical and significant hardship”); 

Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (“Exposure to the conditions of administrative custody for periods as long as 15 months ‘falls within the expected parameters of 

the sentence imposed [on him] by a court of law.’”); Brooks v. DiFasi, 112 F.3d 46, 49 (2d 

Cir. 1997) (“After Sandin, in order to determine whether a prisoner has a liberty interest in 

avoiding disciplinary confinement, a court must examine the specific circumstances of the 

punishment.”); Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) (“Sandin did not create a per 

se blanket rule that disciplinary confinement may never implicate a liberty interest. Courts 

of appeals in other circuits have apparently come to the same conclusion, recognizing that 

district courts must examine the circumstances of a confinement to determine whether 

that confinement affected a liberty interest.”); Dominique v. Weld, 73 F.3d 1156, 1160 (1st 

Cir. 1996) (finding no liberty interest in work release status); Bulger v. United States Bureau 

of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (holding no liberty interest in job assignment); 
Notes

221

Orellana v. Kyle, 65 F.3d 29, 31–32 (5th Cir. 1995) (suggesting that only deprivations “that 

clearly impinge on the duration of confinement, will henceforth qualify for constitutional 

‘liberty’ status”), cert. denied, 516 U.S. 1059 (1996); Whitford v. Boglino, 63 F.3d 527, 533 

(7th Cir. 1995) (observing “Sandin implies that states may grant prisoners liberty interests 

in being in the general population only if the conditions of confinement in segregation are 

significantly more restrictive than those in the general population”).

286. Teller v. Fields, 280 F.3d 69, 80 (2d Cir. 2000). See also Davis v. Barrett, 576 F.3d 129, 

134–35 (2d Cir. 2009); Marion v. Columbia Corr. Inst., 559 F.3d 693, 699 (7th Cir. 2009).

287. Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).

288. 418 U.S. 539 (1974).

289. Id. at 557. See Madison v. Parker, 104 F.3d 765, 769 (5th Cir. 1997). Before being 

deprived of good-time credits, an inmate must be afforded (1) twenty-four-hour advance 

written notice of the alleged violations; (2) the opportunity to be heard before an impartial 

decision maker; (3) the opportunity to call witnesses and present documentary evidence 

(when such presentation is consistent with institutional safety); and (4) a written decision 

by the fact finder stating the evidence relied on and the reasons for the disciplinary action. 

Wolff, 418 U.S. at 563–71.

290. See, e.g., Whitford v. Boglino, 63 F.3d 527, 532 n.5 (7th Cir. 1995). Note, however, 

that “the mere opportunity to earn good-time credits” has been held not to “constitute a 

constitutionally cognizable liberty interest sufficient to trigger the protection of the Due 

Process Clause.” Luken v. Scott, 71 F.3d 192, 193–94 (5th Cir. 1995) (per curiam). The Supreme Court held that Oklahoma’s Preparole Conditional Supervision Program, “a program employed by the State of Oklahoma to reduce the overcrowding of its prisons[,] was 

sufficiently like parole that a person in the program was entitled to the procedural protections set forth in Morrissey v. Brewer, 408 U.S. 471 . . . (1972), before he could be removed 

from it.” Young v. Harper, 520 U.S. 143, 144–45 (1997).

291. See, e.g., Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997); Cornell v. Woods, 69 

F.3d 1383, 1388 n.4 (8th Cir. 1995); Pratt v. Rowland, 65 F.3d 802, 806–07 (9th Cir. 1995). 

292. 545 U.S. 209 (2005).

293. Id. at 223.

294. Id.

295. 424 U.S. 693 (1976).

296. The Court in Davis, 424 U.S. at 709, cited Board of Regents v. Roth, 408 U.S. 564 

(1972), to illustrate this point. See Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004) 

(internal quotation marks, citations, and footnotes omitted):

 In order to fulfill the requirements of a stigma-plus claim arising from the termination 

from government employment, a plaintiff must first show that the government made stigmatizing statements about him—statements that call into question plaintiff’s good name, 

reputation, honor, or integrity. Statements that denigrate the employee’s competence as a professional and impugn the employee’s professional reputation in such a fashion as to effectively 

put a significant roadblock in that employee’s continued ability to practice his or her profession may also fulfill this requirement. A plaintiff generally is required only to raise the falsity 

of these stigmatizing statements as an issue, not prove they are false.

See also Segal v. City of N.Y., 459 F.3d 207, 212–13 (2d Cir. 2006).
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297. See 1 Schwartz, supra note 246, § 3.05[c]. 

298. Zinermon v. Burch, 494 U.S. 113, 126 (1990).

299. Vitek v. Jones, 445 U.S. 480, 491 (1980).

300. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See Jones 

v. Flowers, 547 U.S. 164 (2006); Tulsa Prof ’l Collection Servs., Inc. v. Pope, 485 U.S. 478 

(1988); Menonite Bd. of Missions v. Adams, 462 U.S. 791 (1983); Greene v. Lindsey, 456 

U.S. 444 (1982); Armstrong v. Manzo, 380 U.S. 545 (1965).

301. 424 U.S. 319 (1976).

302. Id. at 335. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (applying Eldridge

balancing formula, finding Ohio’s procedures for placement of prisoners in supermax facility satisfied procedural due process because inmate was guaranteed multiple levels of 

review, notice of factual basis for placement, and fair opportunity for rebuttal; given strong 

security interest in prison security, fact Ohio did not allow inmate to call witnesses “or 

provide other attributes of an adversary hearing” did not violate procedural due process 

because to do so might jeopardize control of prisoner and prison); Washington v. Harper, 

494 U.S. 210, 229–33 (1990) (mentally ill state prisoner challenged prison’s administering 

antipsychotic drugs to him against his will without judicial hearing to determine appropriateness of such treatment, and prison policy required treatment decision to be made by 

hearing committee consisting of psychiatrist, psychologist, and prison facility’s associate 

superintendent; Court applied Eldridge balancing test and found established procedure 

constitutionally sufficient).

303. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).

304. Gilbert v. Homar, 520 U.S. 924 (1997).

305. Loudermill, 470 U.S. at 545.

306. Gilbert, 520 U.S. at 932.

307. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982).

308. Zinermon v. Burch, 494 U.S. 113, 136 (1990). A strong state interest in acting 

quickly may justify dispensing with predeprivation process, in which case a post-deprivation opportunity to be heard will satisfy procedural due process. See Gilbert, 520 U.S. at 930; 

Barry v. Barchi, 443 U.S. 55, 64–65 (1979).

309. Hudson v. Palmer, 468 U.S. 517, 531–33 (1984); Parratt v. Taylor, 451 U.S. 527, 543 

(1981), overruled in part, Daniels v. Williams, 474 U.S. 327 (1986). In Daniels, the Court 

overruled Parratt to the extent that Parratt had held that a deprivation within the meaning 

of the Fourteenth Amendment Due Process Clause could be effected by mere negligent 

conduct. Daniels, 474 U.S. at 330–31.

310. Compare, e.g., Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 536–37 (1st Cir. 

1995) (concluding that officials’ failure to adhere to sex-education policy was “random and 

unauthorized” within meaning of Parratt–Hudson doctrine), cert. denied, 516 U.S. 1159 

(1996), with Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (finding defendants’ conduct—delaying forfeiture proceeding for nearly three years—was authorized under state 

law where defendants had discretion to institute proceedings whenever they wanted).

311. Zinermon, 494 U.S. at 128.

312. Parratt, 451 U.S. at 541.
Notes

223

313. See Rivera-Powell v. N.Y. City Board of Elections, 470 F.3d 458, 465 (2d Cir. 2006) 

(“distinction between random and unauthorized conduct and established state procedures 

. . . is not clear-cut”).

314. 494 U.S. 113 (1990). Zinermon has been interpreted as creating a category of procedural due process claims that falls outside “two clearly delineated categories; those involving a direct challenge to an established state procedure or those challenging random and 

unauthorized acts.” Mertik v. Blalock, 983 F.2d 1353, 1365 (6th Cir. 1993).

315. Zinermon, 494 U.S. at 136.

316. Id. at 136–38.

317. San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465, 493–94 (1st Cir. 

2012) (en banc), cert. denied, 133 S. Ct. 1580 (2013); Johnson v. La. Dep’t of Agric., 18 F.3d 

318, 322 (5th Cir. 1994); Easter House v. Felder, 910 F.2d 1387, 1410 (7th Cir. 1990) (en 

banc).

318. Velez v. Levy, 401 F.3d 75, 92 (2d Cir. 2005). See also Rivera-Powell, 470 F.3d at 465; 

DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003).

319. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

320. Albright v. Oliver, 510 U.S. 266, 272 (1994) (plurality opinion). See, e.g., Zablocki 

v. Redhail, 434 U.S. 374 (1978) (right to marry); Moore v. City of E. Cleveland, 431 U.S. 494 

(1977) (right of close relatives to reside together).

321. Albright, 510 U.S. at 272 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 

(1992)). Accord District Attorney’s Office v. Osborne, 557 U.S. 52, 72 (2009).

322. See Osborne, 557 U.S. at 72; Cnty. of Sacramento, 523 U.S. at 842; Washington v. 

Glucksberg, 521 U.S. 702, 720 (1997); Albright, 510 U.S. at 271; Collins v. City of Harker 

Heights, 503 U.S. 115, 125 (1992). But see BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) 

(holding Due Process Clause prohibits state from imposing “grossly excessive” punishment 

on tortfeasor).

323. Albright, 510 U.S. at 273 (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). 

Accord Cnty. of Sacramento, 523 U.S. at 843.

324. See Cnty. of Sacramento, 523 U.S. at 843 (stating “[s]ubstantive due process analysis 

is therefore inappropriate . . . only if [the] claim is ‘covered by’ the Fourth Amendment”).

325. 523 U.S. 833 (1998).

326. County of Sacramento cited as an example of a substantive due process challenge 

to a state legislative policy, Washington v. Glucksberg, 521 U.S. 702, 719 (1997) (rejecting 

substantive due process challenge to state criminalization of physician-assisted suicide). 

Cnty. of Sacramento, 523 U.S. at 840.

327. See also Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992).

328. Cnty. of Sacramento, 523 U.S. at 834 (citing Estelle v. Gamble, 429 U.S. 97, 104 

(1976)).

329. See, e.g., Folkerts v. City of Waverly, 707 F.3d 975, 981 (8th Cir. 2013) (police investigator’s modified interrogation technique for suspect with IQ of fifty didn’t “shock conscience”); Martinez v. Cui, 608 F.3d 54, 63–65 (1st Cir. 2010) (“shocks the conscience” test 

governs alleged sexual assault by government officer). 
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330. Gonzales-Fuentes v. Molina, 607 F.3d 864, 880–85 (1st Cir. 2010), cert. denied, 131 

S. Ct. 1568 (2011).

331. Terrell v. Larson, 396 F.3d 975, 978 (8th Cir. 2005) (en banc). 

332. Rivera v. Illinois, 556 U.S. 148, 160 (2009). Accord Mills v. City of Grand Rapids, 

614 F.3d 495, 500 (8th Cir. 2010).

333. Hussein v. City of Perrysburg, 617 F.3d 828, 832–33 (6th Cir. 2010) (quoting Bell v. 

Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003)).

334. Jones v. Byrnes, 585 F.3d 971, 978 (6th Cir. 2009); ibid. at 978–79 (concurring opinion). For examples of recent high-speed pursuit decisions rejecting substantive due process 

claims, see Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008); Sitzes v. City of W. Memphis, 

606 F.3d 461 (8th Cir.), cert. denied, 131 S. Ct. 828 (2010); Ellis v. Ogden City, 589 F.3d 1099 

(10th Cir. 2009); Green v. Post, 574 F.3d 1294 (10th Cir. 2009); Helseth v. Burch, 258 F.3d 

867 (8th Cir. 2001), cert. denied, 534 F.3d 1115 (2002).

335. See, e.g., McConkie v. Nichols, 446 F.3d 258 (1st Cir. 2006); Moore v. Nelson, 394 F. 

Supp. 2d 1365 (M.D. Ga. 2005).

336. 557 U.S. 52 (2009).

337. Id. at 56.

338. Id. at 73. The Court in Osborne analogized to Washington v. Glucksberg, 521 U.S. 

702 (1997), where the Court, in rejecting a claimed substantive due process right to physician-assisted suicide, relied partly on the fact that the states were “engaged in serious 

thoughtful examinations” of the issue, id. at 719, and that constitutionalizing the issue 

would “to a great extent [have placed] the matter outside the arena of public debate and 

legislative action.” Id. at 720.

339. 373 U.S. 83 (1963).

340. Osborne, 557 U.S. at 67–68 (citing Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 

(1981)).

341. The state-created liberty interest was based upon Alaska law, which “provides that 

those who use ‘newly discovered evidence’ to ‘establis[h] by clear and convincing evidence 

that [they are] innocent’ may obtain ‘vacation of [their] conviction or sentence in the interest of justice.’ Alaska Stat. §§ 12.72.020(b)(2), 12.72.010(4).” Osborne, 557 U.S. at 68.

342. Osborne, 557 U.S. at 69.

343. Id.

344. Id. at 71 (citations omitted). Although Osborne asserted an “actual innocence” 

claim, he conceded that such a claim would have to be asserted in a federal habeas corpus 

proceeding. Id. at 71–72.

345. See 1 Schwartz, supra note 246, § 10.03. 

346. Osborne, 557 U.S. at 72 (quoting Reno v. Flores, 507 U.S. 292, 303 (1993)). See also

Skinner v. Switzer, 131 S. Ct. 1289, 1293 (2011) (interpreting Osborne as rejecting substantive due process right of postconviction access to evidence for DNA testing, and leaving 

“slim room” for as-applied procedural due process claim).

347. 457 U.S. 307 (1982).

348. Id. at 323.
Notes

225

349. See, e.g., J.W. v. Utah, 647 F.3d 1006, 1011 (10th Cir. 2011); Yvonne L. v. N.M. Dep’t 

of Human Servs., 959 F.2d 883, 893–94 (10th Cir. 1992) (adopting professional judgment 

standard, rather than deliberate indifference, in foster care setting).

350. See, e.g., Doe v. S.C. Dep’t of Soc. Servs., 597 F.3d 163, 172–75 (4th Cir. 2010); Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 880–883 (5th Cir. 2004); 

Nicini v. Morra, 212 F.3d 798, 810–12 (3d Cir. 2000) (en banc); Lintz v. Skipski, 25 F.3d 304, 

306 (6th Cir.), cert. denied, 513 U.S. 988 (1994). 

351. 489 U.S. 189 (1989).

352. Id. at 195.

353. Id. at 197. Joshua DeShaney, a four-year-old boy, had been repeatedly beaten by 

his father. The county child protection agency had monitored Joshua’s case through social 

workers and at one point took custody of him, but failed to protect him from his father’s 

last beating, which left the child permanently brain damaged. Id. at 192–93.

354. Id. at 199–200; see, e.g., Farmer v. Brennan, 511 U.S. 825, 833–34 (1994) (state has 

constitutional duty to protect prisoners from attacks by fellow prisoners) (see infra Ch. 5, 

§ VIII); Youngberg v. Romeo, 457 U.S. 307 (1982) (holding substantive due process component of Fourteenth Amendment Due Process Clause imposes duty on state to provide for 

safety and medical needs of involuntarily committed mental patients); Estelle v. Gamble, 

429 U.S. 97 (1976) (state has constitutional duty to provide adequate medical care to incarcerated prisoners).

355. See 1 Schwartz, supra note 246, § 3.09.

356. See, e.g., Walton v. Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995) (en banc) (“[I]f 

the person claiming the right of state protection is voluntarily within the care or custody of 

a state agency, he has no substantive due process right to the state’s protection from harm 

inflicted by third party non-state actors. We thus conclude that DeShaney stands for the 

proposition that the state creates a ‘special relationship’ with a person only when the person 

is involuntarily taken into state custody and held against his will through the affirmative 

power of the state; otherwise, the state has no duty arising under the Constitution to protect 

its citizens against harm by private actors.”).

At least one circuit has suggested that the concept of “in custody” for triggering an affirmative duty to protect under DeShaney entails more than a “simple criminal arrest.” See

Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1175 (7th Cir. 1997) (“The Supreme 

Court’s express rationale in DeShaney for recognizing a constitutional duty does not match 

the circumstances of a simple criminal arrest. . . . This rationale on its face requires more 

than a person riding in the back seat of an unlocked police car for a few minutes.”).

357. DeShaney, 489 U.S. at 201 n.9.

358. See, e.g., Xiong v. Wagner, 700 F.3d 282, 293 (7th Cir. 2012) (holding child has due 

process right to be placed by state safe and secure foster home); J.W. v. Utah, 647 F.3d 1006, 

1011 (10th Cir. 2011) (holding failure to exercise professional judgment violated process 

duty); Tamas v. Dep’t of Soc. & Health Servs., 630 F.3d 833, 842–46 (9th Cir. 2010) (deliberate indifference is governing due process standard); Doe v. S.C. Dep’t of Soc. Servs., 597 F.3d 

163, 175 (4th Cir. 2010) (same); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc) 

(holding “state has certain affirmative duties” in foster care situation). See also Schwartz v. 

Booker, 702 F.3d 573 (10th Cir. 2012); Camp v. Gregory, 67 F.3d 1286, 1297 (7th Cir. 1995); 
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Lintz v. Skipski, 25 F.3d 304, 305 (6th Cir. 1994); Norfleet v. Ark. Dep’t of Human Servs., 

989 F.2d 289, 293 (8th Cir. 1993); Yvonne L. v. N.M. Dep’t of Human Servs., 959 F.2d 883, 

893 (10th Cir. 1992). But see D.W. v. Rogers, 113 F.3d 1214, 1218 (11th Cir. 1997) (“the 

state’s affirmative obligation to render services to an individual depends not on whether the 

state has legal custody of that person, but on whether the state has physically confined or 

restrained the person”); White v. Chambliss, 112 F.3d 731, 738 (4th Cir. 1997) (“Given the 

state of this circuit’s law on the issue and the absence of controlling Supreme Court authority, we cannot say that a right to affirmative state protection for children placed in foster care 

was clearly established at the time of [child’s] death.”); Wooten v. Campbell, 49 F.3d 696, 

699–701 (11th Cir. 1995) (finding no “substantive due process right is implicated where a 

public agency is awarded legal custody of a child, but does not control that child’s physical 

custody except to arrange court-ordered visitation with the non-custodial parent”).

359. See, e.g., Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1001 (5th Cir. 

2014); Morrow v. Balaski, 719 F.3d 160, 165, 179 (3d Cir. 2013) (en banc); Doe v. Covington Sch. Dist., 675 F.3d 849, 856–63 (5th Cir. 2012); Patel v. Kent Sch. Dist., 648 F.3d 965, 

973–74 (9th Cir. 2011); McQueen v. Beecher Cmty. Schools, 433 F.3d 460, 464 n.4 (6th Cir. 

2006); Hasenfus v. LaJeunesse, 175 F.3d 68, 73–74 (1st Cir. 1999); Doe v. Hillsboro Indep. 

Sch. Dist., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc); Doe v. Claiborne Cnty., 103 F.3d 

495, 510 (6th Cir. 1996); Nabozny v. Podlesny, 92 F.3d 446, 458–59 (7th Cir. 1996); Walton 

v. Alexander, 44 F.3d 1297, 1305 (5th Cir. 1995) (en banc); Wright v. Lovin, 32 F.3d 538, 

540 (11th Cir. 1994); D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 

1371–72 (3d Cir. 1992) (en banc); J.O. v. Alton Sch. Dist., 909 F.2d 267, 272–73 (7th Cir. 

1990). See also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995).

360. Schoolchildren, however, have a liberty interest in their bodily integrity that is protected by the Due Process Clause against deprivation by the state. See Ingraham v. Wright, 

430 U.S. 651, 673–74 (1977). Therefore, DeShaney does not apply where the alleged harm 

is attributed to a state actor, generally a teacher or other school official. See, e.g., Stoneking 

v. Bradford Area Sch. Dist., 882 F.2d 720, 724 (3d Cir. 1989) (distinguishing this situation 

from DeShaney because injury here—sexual molestation—resulted from conduct of state 

employee, not private actor), cert. denied, 493 U.S. 1044 (1990).

361. See, e.g., Dawson v. Milwaukee Hous. Auth., 930 F.2d 1283, 1285 (7th Cir. 1991) 

(holding presence in publicly subsidized housing not functional equivalent of being “in 

custody”).

362. See, e.g., Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir. 1997) (“[P]rison guards 

ordered to stay at their posts are not in the kind of custodial setting required to create a 

special relationship for 14th Amendment substantive due process purposes.”); Liebson v. 

N.M. Corr. Dep’t, 73 F.3d 274, 276 (10th Cir. 1996) (holding librarian assigned to provide 

library services to inmates housed in maximum security unit of state penitentiary was not 

in state’s custody or held against her will; employment relationship was “completely voluntary”); Lewellen v. Metro. Gov’t of Nashville, 34 F.3d 345, 348–52 (6th Cir. 1994) (workman 

accidentally injured on school construction project has no substantive due process claim).

363. 503 U.S. 115 (1992).
Notes

227

364. Id. at 130. See also Kaucher v. Cnty. of Bucks, 455 F.3d 418, 424–30 (3d Cir. 2006); 

Estate of Phillips v. District of Columbia, 455 F.3d 397, 406–08 (D.C. Cir. 2006); Walker v. 

Rowe, 791 F.2d 507, 510–11 (7th Cir. 1986).

365. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 201 (1989). However, “the line between action and inaction, between inflicting and failing to prevent the 

infliction of harm,” is not always clear. D.R. v. Middle Bucks Area Vocational Technical 

Sch., 972 F.2d 1364, 1374 (3d Cir. 1992) (quoting Bowers v. Vito, 686 F.2d 616, 618 (1st Cir. 

1982)).

366. DeShaney, 489 U.S. at 200 (“The affirmative duty to protect arises not from the 

State’s knowledge of the individual’s predicament or from its expressions of intent to help 

him.”). See also Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir.) (en banc) (“By requiring a 

custodial context as the condition for an affirmative duty, DeShaney rejected the idea that 

such a duty can arise solely from an official’s awareness of a specific risk or from promises 

of aid.”), cert. denied, 516 U.S. 994 (1995).

367. See, e.g., Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 427–31 

(2d Cir. 2009) (issue of fact whether village police implicitly encouraged domestic violence 

inflicted by boyfriend upon plaintiff); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235–40 

(3d Cir. 2008) (using four-part “enhance danger” test: § 1983 complaint alleged proper 

“enhance the danger” claims against some defendants though not against others); Rost v. 

Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1126 (10th Cir. 2008) (articulating sixpart state-created danger test, including that defendant engaged in conscience-shocking 

conduct that put plaintiff at substantial risk of serious, immediate harm); King v. E. St. 

Louis Sch. Dist. 189, 496 F.3d 812, 817–19 (7th Cir. 2007) (recognizing state-created-danger doctrine, though rejecting its application in particular circumstances); McQueen v. 

Beecher Cmty. Schs., 433 F.3d 460, 464, 469 (6th Cir. 2006) (relying on Kallstrom v. City 

of Columbus, 136 F.3d 1055, 1063 (6th Cir. 1998) (state-created-danger doctrine requires 

showing of “an affirmative act that creates or increases the risk, a special danger to the 

victim as distinguished from the public at large, and the requisite degree of state culpability”—namely, “deliberate indifference,” which means “subjective recklessness”); Pena v. 

DePrisco, 432 F.3d 98, 108 (2d Cir. 2005) (adopting state-created danger doctrine); Hart v. 

City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005) (“Under the state-created danger theory, [plaintiffs] must prove 1) they were members of a limited, precisely definable group, 

2) [city’s] conduct put them at significant risk of serious, immediate, and proximate harm, 

3) the risk was obvious or known to [city], 4) [city] acted recklessly in conscious disregard 

of the risk, and 5) in total, [city’s] conduct shocks the conscience.” (citations omitted)); 

Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005) (“In order to prevail on a 

state-created danger claim, a plaintiff must prove ‘(1) the harm ultimately caused was 

foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of 

the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the 

state actors used their authority to create an opportunity that otherwise would not have 

existed for the [harm] to occur.’” (citation omitted)); Estate of Amos v. City of Page, 257 

F.3d 1086, 1091 (9th Cir. 2001) (“cognizable section 1983 claim under the ‘danger creation’ 

exception [requires] an affirmative act by the police that leaves the plaintiff ‘in a more dangerous position than the one in which they found him’” (emphasis added)). See also Estate 
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of Stevens v. City of Green Bay, 105 F.3d 1169, 1177 (7th Cir. 1997); Seamons v. Snow, 84 

F.3d 1226, 1236 (10th Cir. 1996); Pinder v. Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995) (en 

banc); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993); Dwares v. City of N.Y., 985 

F.2d 94, 99 (2d Cir. 1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990); Wood v. 

Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989). But see Bustos v. Martini Club, Inc., 599 

F.3d 458, 465 (5th Cir. 2010) (stating Fifth Circuit hasn’t adopted state-created-danger 

theory). Courts of appeals that have adopted the state-created-danger doctrine have not 

agreed about the test that should govern the claim; for a breakdown by circuit of state-created danger decisions, see 1 Schwartz, supra note 246, § 3.09[E]. 

368. Collins v. City of Harker Heights, 503 U.S. 115, 130 (1992).

369. See, e.g., Kallstrom v. City of Columbus, 136 F.3d 1055, 1066–67 (6th Cir. 1998) 

(city officials’ release of personal information about plaintiffs—undercover officers—

increased risk of danger to them); L.W. v. Grubbs, 974 F.2d 119, 120–21 (9th Cir. 1992) 

(concluding plaintiff, a registered nurse, stated constitutional claim against defendant-correctional officers, who knew inmate was violent sex offender, likely to assault plaintiff if 

alone with her, and yet intentionally assigned inmate to work alone with plaintiff in clinic); 

Cornelius v. Town of Highland Lake, 880 F.2d 348, 359 (11th Cir. 1989) (holding that where 

defendants had put plaintiff, a town clerk, in a “unique position of danger” by causing inmates who were inadequately supervised to be present in town hall, then “under the special 

danger approach as well as the special relationship approach . . . the defendants owed [the 

plaintiff] a duty to protect her from the harm they created”). But see Mitchell v. Duval 

Cnty. Sch. Bd., 107 F.3d 837, 839–40 (11th Cir. 1997) (per curiam) (noting “Cornelius may 

not have survived Collins v. City of Harker Heights, where the Supreme Court held that a 

voluntary employment relationship does not impose a constitutional duty on government 

employers to provide a reasonably safe work environment,” but holding that even if Cornelius has not been undermined, plaintiff did not make out state-created danger claim where 

“the school neither placed [plaintiff] in a dangerous location nor placed the assailants in 

the place where [plaintiff] was”).

370. U.S. Const. amend. IV (stating “the right of the people to be secure in their persons 

. . . against unreasonable . . . seizures, shall not be violated”).

371. See Graham v. Connor, 490 U.S. 386, 388–95 (1989).

372. Id. at 395 (citing Bell v. Wolfish, 441 U.S. 520, 535–39 (1979)).

373. U.S. Const. amend. VIII (stating “cruel and unusual punishments [shall not be] 

inflicted”).

374. See Hudson v. McMillian, 503 U.S. 1, 6–7 (1992); Whitley v. Albers, 475 U.S. 312, 

318–19 (1986).

375. U.S. Const. amend. XIV § 1 (stating that “[n]o State shall . . . deprive any person of 

life, liberty . . . without due process of law”).

376. Graham v. Connor, 490 U.S. 386, 395 (1989). See also Cnty. of Sacramento v. Lewis, 

523 U.S. 833, 842–43 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); Albright 

v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion).

377. Graham, 490 U.S. at 395 n.10.

378. “[W]hile force found to shock the conscience under the Fourth Amendment will 

necessarily violate the Fourth Amendment’s reasonableness test, force that does not shock 
Notes

229

the conscience may nevertheless be unreasonable under the Fourth Amendment.” Aldini v. 

Johnson, 609 F.3d 858, 867 (6th Cir. 2010).

379. Cnty. of Sacramento, 523 U.S. at 842–45. Cf. Scott v. Harris, 550 U.S. 372, 381 (2007) 

(termination of high-speed pursuit by ramming pursued vehicle from behind constituted 

Fourth Amendment “seizure”).

380. Graham, 490 U.S. at 395 n.10.

381. Id. 

382. See, e.g., Fontana v. Haskin, 262 F.3d 871, 878–81 (9th Cir. 2011) (applying Fourth 

Amendment under “continuing seizure” theory); Aldini, 609 F.3d at 864–67 (Fourth 

Amendment’s objective reasonableness standard governs, rather than substantive due process shocks-the-conscience test); Lopez v. City of Chi., 464 F.3d 711, 718–20 (7th Cir. 2006) 

(holding Fourth Amendment applicable); Wilson v. Spain, 209 F.3d 713, 715 & n.2 (8th Cir. 

2000) (describing conflict in circuits, and holding Fourth Amendment applicable). Compare Riley v. Dorton, 115 F.3d 1159, 1163–64 (4th Cir. 1997) (detailing circuit conflict, and 

holding Fourth Amendment not applicable to “alleged mistreatment of arrestees or pretrial 

detainees in custody”). See generally Albright v. Oliver, 510 U.S. 266, 279 (1994) (Ginsburg, 

J., concurring) (stating person had been “seized” within meaning of Fourth Amendment 

by his arrest and conditional release after posting bail). See also 1 Schwartz, supra note 246, 

§ 3.12[D][4][b]. As the cases cited in this note show, the trend of appellate court cases is 

to apply the Fourth Amendment to force used during the period after arrest and before 

detention.

383. See Graham, 490 U.S. at 395–96; see also Brower v. Cnty. of Inyo, 489 U.S. 593, 

595–600 (1989) (determining use of blind roadblock was Fourth Amendment seizure, and 

remanding to determine, inter alia, if seizure was reasonable).

384. See Graham, 490 U.S. at 395–96; Brower, 489 U.S. at 595–600.

385. See generally Cnty. of Sacramento v. Lewis, 523 U.S. 833, 842–43 (1998) (stating if 

police officer’s use of force during high-speed pursuit did not result in seizure, substantive 

due process analysis is appropriate).

386. Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968).

387. California v. Hodari D., 499 U.S. 621, 628 (1991); see also INS v. Delgado, 466 

U.S. 210, 215 (1984); United States v. Mendenhall, 446 U.S. 544, 554–55 (1980) (Stewart & 

Rehnquist, JJ.).

388. Brower, 489 U.S. at 597–99 (use of roadblock to stop fleeing motorist constituted 

seizure; whether act was intentional is objective inquiry—question is whether reasonable 

officer would have believed that means used would have caused suspect to stop). Accord

Brendelin v. California, 551 U.S. 249, 254 (2007); Scott v. Harris, 550 U.S. 372, 381 (2007). 

The Court in Brendelin, stated that the relevant issue is “the intent of the police objectively 

manifested.” Brendelin, 551 U.S. at 261.

389. Cnty. of Sacramento, 523 U.S. at 843–44 (stating no seizure occurred when officer 

accidentally hit passenger of pursued motorcyclist). Most excessive force claims under the 

Fourth Amendment involve the infliction of physical injury. However, claims involving psychological injury are also actionable. See, e.g., McDonald v. Haskins, 966 F.2d 292, 294–95 

(7th Cir. 1992) (holding nine-year-old child stated valid unreasonable force claim under 

Fourth Amendment by alleging that officer held a gun to child’s head while executing search 
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warrant, even though child posed no threat to officer and did not attempt to flee); see generally Hudson v. McMillian, 503 U.S. 1, 16 (1992) (Blackmun, J., concurring) (psychological 

harm can constitute “cruel and unusual punishment”) (citing Wisniewski v. Kennard, 901 

F.2d 1276, 1277 (5th Cir. 1990)) (“guard placing a revolver in inmate’s mouth and threatening to blow prisoner’s head off”).

390. Brooks v. Gaenzle, 614 F.3d 1213, 1219–24 (10th Cir. 2010), cert. denied, 131 S. Ct. 

1045 (2011).

391. 471 U.S. 1 (1985).

392. Id. at 3–4, 9–11. The courts commonly define deadly force pursuant to the Model 

Penal Code definition of force: carrying a substantial risk of causing death or serious harm. 

See, e.g., Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1313–14 and 1313 n.1 (10th Cir. 2009).

393. Garner, 471 U.S. at 11. Cf. Scott v. Harris, 550 U.S. 372 (2007), discussed infra, 

Chapter 5, § V.A.3.

394. Garner, 471 U.S. at 11.

395. Id. at 21–22.

396. 39 F.3d 912 (9th Cir. 1994).

397. Id. at 915. See also Gonzalez v. City of Anaheim, 747 F.3d 789, 795 (9th Cir. 2014) 

(en banc) (principle that summary judgment should be granted sparingly in deadly force 

cases applies with particular force where officer killed suspect and officers involved in 

shooting are only remaining witnesses); Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 

(7th Cir. 2010) (principle that “summary judgment is often inappropriate in excessive-force 

cases because the evidence surrounding the officer’s use of force is often susceptible of different interpretations” is “particularly relevant where, as here, the one against whom force 

was used had died, because the witness most likely to contradict the officer’s testimony-the 

victim-cannot testify”) (citations omitted); Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) 

(noting that because deceased suspect not available to contradict police officer’s version of 

events, courts must critically assess all other evidence in case, and “may not simply accept 

what may be a self-serving account by the police officer”); O’Bert v. Vargo, 331 F.3d 29, 37–

38 (2d Cir. 2003) (holding summary judgment should not be granted to defendant officer 

in deadly force case based solely on what may be officer’s self-serving account of incident; 

court must “consider ‘circumstantial evidence that, if believed, would tend to discredit the 

police officer’s story, and consider whether this evidence would convince rational factfinder 

that officer acted unreasonably’” (quoting Scott, 39 F.3d at 915)); Abraham v. Raso, 183 F.3d 

279, 294 (3d Cir. 1999) (because victim of deadly force unable to testify, courts must be 

cautious on summary judgment to ensure officer not taking advantage of fact victim can’t 

contradict his story).

398. 490 U.S. 386 (1989).

399. Id. at 395. The Court in Graham acknowledged that the Fourth Amendment “has 

long recognized that the right to make an arrest or investigatory stop necessarily carries 

with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. 

at 396.

400. Id. at 396. See also George v. Morris, 736 F.3d 829, 839 (9th Cir. 2013) (fact officers 

responded to domestic disturbance call is pertinent consideration) (citing Mattos v. Agarano, 661 F.3d 433, 450 (9th Cir. 2011) (en banc)).
Notes

231

401. Graham, 490 U.S. at 396–97. Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 

(2014). In Plumhoff, the Court ruled that “if police officers are justified in firing at a suspect 

in order to end a severe threat to public safety, the officers need not stop shooting until the 

threat has ended.” Id. at 2022. Fourth Amendment excessive force claims are subject to qualified immunity. See Saucier v. Katz, 533 U.S. 194 (2001). Accord Plumhoff, 134 S. Ct. 2012.

402. Graham, 490 U.S. at 397.

403. Id.

404. Id. at 399 n.12 (officer’s ill will relevant on credibility); Ricketts v. City of Hartford, 

74 F.3d 1397, 1412 (2d Cir.) (officer’s “evil motive or intent” relevant on punitive damages), 

cert. denied, 519 U.S. 815 (1996).

405. Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011); Dorsey v. Barber, 517 F.3d 389, 

399 n.4 (6th Cir. 2008).

406. Brockington v. Boykins, 637 F.3d 503, 507 (4th Cir. 2011).

407. See, e.g., English v. District of Columbia, 651 F.3d 1, 9–10 (D.C. Cir. 2011) (citing 

Whren v. United States, 517 U.S. 806, 815 (1996)); McKenna v. City of Philadelphia, 582 

F.3d 447, 461 (3d Cir. 2009); Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009); Thompson v. City of Chi., 472 F.3d 444, 455 (7th Cir. 2006). Contra Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), cert. denied, 542 U.S. 918 (2004). But see Bell v. 

Wolfish, 441 U.S. 520, 543 n.27 (1979) (due process rights of pretrial detainees: Court stated 

that correctional standards issued by organizations such as American Correctional Association and National Commission on Correctional Health Care may be instructive, but “do 

not establish the constitutional minima; rather they establish goals recommended by the 

organization in question”); Sheehan v. San Francisco, 743 F.3d 1211, 1225 (9th Cir. 2014) 

(in determining reasonableness of use of force, trier of fact may consider expert testimony 

of general police practices for dealing with mentally ill or emotionally disturbed persons).

408. 550 U.S. 372 (2007).

409. Id. at 386.

410. Id. at 379–80 (footnotes omitted).

411. Id. at 375 (footnote omitted).

412. Id. at 381. When termination of a high-speed pursuit does not culminate in a seizure, 

the officer’s actions are evaluated under a substantive due process, “shocks the conscience” 

purpose-to-cause-harm standard. Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998).

413. A videotape may be considered by the district court only if it has been properly 

authenticated, which is a condition precedent to admissibility. Fed. R. Evid. 901(a). See, e.g.,

Snover v. City of Starke, 398 F. App’x 445, 449 (11th Cir. 2010) (§ 1983 excessive force claim: 

“Because the defendants merely filed the DVD with the court and did not authenticate it, 

the district court did not abuse its discretion in declining to consider the DVD.”) (citing 

Asociacion de Periodistas de P.R. v. Mueller, 529 F.3d 52, 56–57 (1st Cir. 2008)).

414. Scott v. Harris, 550 U.S. 372, 380 (2007).

415. Id. at 381 n.8.

416. Id. at 383.

417. 471 U.S. 1 (1985).

418. Scott, 550 U.S. at 382–83 (citations omitted) (following Brower v. Cnty. of Inyo, 489 

U.S. 593, 596–97 (1989)).
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419. Scott, 550 U.S. at 382 n.9 (Garner “hypothesized that deadly force may be used ‘if 

necessary to prevent escape’ when the suspect is known to have ‘committed a crime involving the infliction or threatened infliction of serious physical harm,’ so that his mere being at 

large poses an inherent danger to society.”).

420. Id. at 382.

421. Id. at 384.

422. Id. at 385.

423. Id. at 385–86. Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2021 (2014).

424. Scott, 550 U.S. at 386 (Ginsburg, J., concurring).

425. Id. at 389 (Breyer, J., concurring) (quoting majority opinion).

426. Id. (Breyer, J., concurring).

427. Id. at 395 (Stevens, J., dissenting).

428. Id. at 395–96 (Stevens, J., dissenting).

429. See, e.g., Harris v. Serpas, 745 F.3d 767, 770–73 (5th Cir. 2014) (in upholding grant 

of summary judgment to defendant officers, court relied on “taser video” of incident); 

Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (relying on facts depicted 

in videotape, granting summary judgment to defending officers); Thomas v. Durastanti, 

607 F.3d 655, 659 (10th Cir. 2010) (same); Wallingford v. Olson, 592 F.3d 888, 892–93 (8th 

Cir. 2010) (same); Collier v. Montgomery, 569 F.3d 214, 219 (5th Cir. 2009) (same); Dunn 

v. Matatall, 549 F.3d 348, 354–55 (6th Cir. 2008) (same); Marvin v. City of Taylor, 509 F.3d 

234, 238–49 (6th Cir. 2007) (same); Beshers v. Harrison, 495 F.3d 1260, 1263–68 (11th Cir. 

2007) (same). But see Witt v. W. Va. State Police, 633 F.3d 272, 276–77 (4th Cir. 2011) (police 

cruiser videotape that had no sound and was of poor quality did not blatantly contradict 

plaintiff’s version of facts; officers not entitled to summary judgment; Scott did “not hold 

that courts should reject a plaintiff’s account on summary judgment whenever documentary evidence, such as a video, offers some support for a governmental officer’s version of 

events. Rather, Scott merely holds that when documentary evidence ‘blatantly contradict[s]’ 

a plaintiff’s account, ‘so that no reasonable jury could believe it,’ a court should not credit 

the plaintiff’s version on summary judgment.”) (citation omitted).

For an empirical evaluation of the decision in Scott v. Harris, see Dan M. Kahan, David 

A. Hoffman & Donald Blasman, Whose Eyes Are You Going to Believe? Scott v. Harris and 

the Perils of Cognitive Illiberalism, 122 Harv. L. Rev. 837 (2009). See 1 Schwartz, supra note 

246, § 3.12[C][D].

430. See, e.g., Kopec v. Tate, 361 F.3d 772, 777 (3d Cir.) (recognizing excessively tight 

handcuffing constitutes excessive force), cert. denied, 543 U.S. 956 (2004); Martin v. Heideman, 106 F.3d 1308, 1313 (6th Cir. 1997) (“excessively forceful handcuffing” viewed as excessive force claim).

431. See, e.g., Moss v. United States Secret Service, 675 F.3d 1213 (9th Cir. 2012) (use 

of pepper spray against peaceful, obedient protester violated Fourth Amendment) (relying 

on Headwaters Forest Def. v. Cnty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002)); Tracy v. 

Freshwater, 623 F.3d 90, 98–99 (2d Cir. 2010) (based on plaintiff’s version of facts, reasonable jury could find use of pepper spray violated Fourth Amendment). See also Kenney v. 

Floyd, 700 F.3d 604, 610 (1st Cir. 2012); Maxwell v. Cnty. of San Diego, 697 F.3d 941, 953 

(9th Cir. 2012).
Notes

233

432. See, e.g., Campbell v. City of Springboro, 700 F.3d 779, 787–89 (6th Cir. 2012) 

(based on plaintiffs’ version of facts, reasonable jury could find police officer’s deployment 

of police dog’s “bite and hold” on two suspects was unreasonable and in violation of clearly 

established Fourth Amendment law; dog’s training was “questionable,” and suspects lying on 

ground were not threat to anyone when canine unit called in); Edwards v. Shanley, 666 F.3d 

1289, 1296–97 (11th Cir. 2012) (officer’s use of police dog to track and initially subdue fleeing suspect reasonable; but officer’s use of police dog to attack suspect for 5–7 minutes while 

suspect pleading to surrender, and officer in position to arrest suspect, was unreasonable).

433. See, e.g., Estate of Levy v. City of Spokane, 534 F. App’x 595 (9th Cir. 2013); Meyers 

v. Balt. Cnty., 713 F.3d 723 (4th Cir. 2013); Abbott v. Sangamon Cnty., 705 F.3d 706 (7th 

Cir. 2013); Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012); Hagans v. Franklin Cnty. Sheriff’s Office, 695 F.3d 505 (6th Cir. 2012); Marquez v. City of Phoenix, 693 F.3d 1167 (9th 

Cir. 2012); Austin v. Redford Twp. Police Dep’t, 690 F.3d 490 (6th Cir. 2012); Carpenter v. 

Gage, 686 F.3d 644 (8th Cir. 2012); Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012); Mattos v. 

Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc), cert. denied, 132 S. Ct. 2682, 2684 (2012); 

Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011); McKenney v. Harrison, 635 F.3d 

354 (8th Cir. 2011); Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010); Cyrus 

& Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010); Bryan v. McPherson, 630 F.3d 805 

(9th Cir. 2010); Mann v. Taser Int’l, 588 F.3d 1291 (11th Cir. 2009); Oliver v. Fiorino, 586 

F.3d 898 (11th Cir. 2009); Cook v. City of BellaVilla, 582 F.3d 840 (8th Cir. 2009); Lewis v. 

Downey, 581 F.3d 467 (7th Cir. 2009), cert. denied, 130 S. Ct. 1936 (2010); Brown v. City 

of Golden Valley, 574 F.3d 491 (8th Cir. 2009); Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008); 

Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir. 2008).

434. Matta-Ballestros v. Hennan, 896 F.3d 255, 256 n.2 (7th Cir. 1990).

435. See Billington v. Smith, 292 F.3d 1177, 1187–88 (9th Cir. 2002) (explaining different circuits’ approaches). See also 1 Schwartz, supra note 246, § 3.12[D].

436. Harris v. Serpas, 745 F.3d 767, 772–73 (5th Cir. 2014); Greenidge v. Ruffin, 927 F.2d 

789, 792 (4th Cir. 1991).

437. Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996).

438. Id.

439. St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995), cert. denied, 518 U.S. 

1017 (1996); accord Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005).

440. Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999).

441. Allen v. Muskogee, 119 F.3d 837, 840–41 (10th Cir. 1997).

442. Bletz v. Gribble, 641 F.3d 743, 751 (6th Cir. 2011) (“Whether events leading up to 

a shooting are legitimate factors to consider in assessing an excessive force claim depends 

on the totality of the circumstances in question.”) (citing Livermore v. Lobelan, 476 F.3d 

397 (6th Cir. 2007); Dickerson v. McCellan, 101 F.3d 1151 (6th Cir. 1996); Yates v. City of 

Cleveland, 941 F.3d 444 (6th Cir. 1991)).

443. 652 F.3d 524 (4th Cir.) (en banc), cert. denied, 132 S. Ct. 781 (2011).

444. Id. at 532–33.

445. Id. at 535 (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009) (qualified immunity 

applies to mistake of law or fact, and to mixed questions of law and fact).

446. 648 F.3d 1119 (9th Cir. 2011), cert. denied, 132 S. Ct. 1032 (2012).
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447. Id. at 1120.

448. Id. at 1124.

449. Id. at 1127.

450. Gutierrez v. San Antonio, 139 F.3d 441, 446 (5th Cir. 1998). Accord Thomson v. Salt 

Lake Cnty., 584 F.3d 1304, 1313–14 & 1313 n.1 (10th Cir. 2009); Smith v. City of Hemet, 394 

F.3d 689 (9th Cir.) (en banc), cert. denied, 545 U.S. 1128 (2005); Estate of Phillips v. City of 

Milwaukee, 123 F.3d 586 (7th Cir. 1997), cert. denied, 522 U.S. 1116 (1998).

451. See, e.g., Rahn v. Hawkins, 464 F.3d 813, 817–18 (8th Cir. 2006); Monroe v. City of 

Phoenix, 248 F.3d 851, 859–60 (9th Cir. 2001).

452. Rahn, 464 F.3d at 817–18; Monroe, 248 F.3d at 859–60.

453. For decisions holding a deadly force instruction not required, see Acosta v. Hill, 

504 F.3d 1323 (9th Cir. 2007) (overruling Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 

2001)); Blake v. City of N.Y., No. 05-Civ. 6652 (BSJ), 2007 U.S. Dist. LEXIS 49160 (S.D.N.Y. 

July 3, 2007). The Second Circuit, however, held that when force is “highly likely to have 

deadly effects,” the district court must give a special Garner instruction. Rasanen v. Doe, 723 

F.3d 325, 333 (2d Cir. 2013). See also Terranova v. New York, 676 F.3d 305, 309 (2d Cir.), cert. 

denied, Terranova v. Torres, 184 L. Ed. 2d 156 (2012) (“absent evidence of the use of force 

highly likely to have deadly effects, as in Garner, a jury instruction regarding justifications 

for the use of deadly force is inappropriate, and the usual instructions regarding the use of 

excessive force are adequate”).

454. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005); accord Smith v. 

City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). See also Cavanaugh v. Woods Cross City, 

718 F.3d 1244, 1252–57 (10th Cir. 2013) (when qualified immunity is not at issue and there 

are disputed issues of material fact, reasonableness of officer’s use of force is for jury).

455. See Scott v. Harris, 550 U.S. 372 (2007); Untalan v. City of Lorain, 430 F.3d 312, 

314–17 (6th Cir. 2005) (upholding district court’s decision to grant defendant police officer’s summary judgment motion based on qualified immunity because, based on evidence, 

no reasonable juror could find that officer violated decedent’s Fourth Amendment rights).

456. Saucier v. Katz, 533 U.S. 194, 200–01 (2001) (stressing “the importance of resolving 

immunity questions at the earliest possible stage in litigation”). See infra Chapter 16.

457. Scott, 550 U.S. at 378–81.

458. Sanchez v. City of Chi., 700 F.3d 919, 926 (7th Cir. 2012) (citations omitted). See 

also Stevenson v. City of Seat Pleasant, 743 F.3d 411, 416–19 (4th Cir. 2014).

459. 463 U.S. 239 (1983).

460. Id. at 244.

461. Id. Regardless of the constitutional standard, the city of Revere “fulfilled its constitutional obligation by seeing that [the arrestee] was taken promptly to a hospital that” 

treated his injuries. Id. at 245.

462. Estelle v. Gamble, 429 U.S. 97, 102–05 (1976).

463. See, e.g., Estate of Moreland v. Dieter, 395 F.3d 747, 758 (7th Cir. 2005); Watkins 

v. City of Battle Creek, 273 F.3d 682, 685–86 (6th Cir. 2001); Napier v. Madison Cnty., 238 

F.3d 739, 742 (6th Cir. 2001); Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000); Horn v. 

Madison Cnty. Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994). 
Notes

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464. Hudson v. McMillian, 503 U.S. 1, 7 (1992). Accord Whitley v. Albers, 475 U.S. 312, 

320–21 (1986).

465. Whitley, 475 U.S. at 321–22.

466. Hudson, 503 U.S. at 6–10.

467. 475 U.S. 312 (1986).

468. Id. at 321.

469. See id. at 320; accord Hudson, 503 U.S. at 6.

470. 503 U.S. 1 (1992).

471. Id. at 9.

472. Id. at 9–10 (citation omitted).

473. 130 S. Ct. 1175 (2010) (per curiam).

474. Id. at 1178.

475. Id. at 1180. “An inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim.” Id. at 1178.

476. Id. at 1178–79.

477. Whitley v. Albers, 475 U.S. 312, 322 (1986).

478. 490 U.S. 386 (1989).

479. 441 U.S. 520 (1979).

480. Graham, 490 U.S. at 395 n.10 (dictum).

481. 523 U.S. 833 (1998).

482. Id. at 846–47 (citing Rochin v. California, 342 U.S. 165, 172–73 (1952)).

483. Id. at 836.

484. Id. at 852–53.

485. See 1 Schwartz, supra note 246, § 3.16[A].

486. O’Connor v. Huard, 117 F.3d 12 (1st Cir. 1997), cert. denied, 522 U.S. 1047 (1998).

487. Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009); Carr v. Deeds, 453 F.3d 593, 605 

(4th Cir. 2006); Fuentes v. Wagner, 206 F.3d 335, 347–48 (3d Cir. 2000); Valencia v. Wiggins, 

981 F.2d 1440, 1445–46 (5th Cir. 1993). See also United States v. Walsh, 194 F.3d 37, 48 (2d 

Cir. 1999).

488. Tesch v. City of Green Lake, 157 F.3d 465 (7th Cir. 1998). See also Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014).

489. See compilation of courts of appeals decisions, 1 Schwartz, supra note 246, 

§ 3.16[A][1].

490. Bell, 441 U.S. at 535–39.

491. O’Connor, 117 F.3d 12.

492. Seizure of Property: Although much less common than § 1983 challenges to arrests 

and searches, a § 1983 Fourth Amendment claim can be based upon a law enforcement officer’s seizure of property. Soldal v. Cook Cnty., 506 U.S. 56, 61, 71 (1992) (holding deputy 

sheriffs’ removal of trailer from mobile home park was a seizure, which “occurs when ‘there 

is some meaningful interference with an individual’s possessory interests in that property’”; 

seizure must be reasonable, requiring “balancing of governmental and private interests”).

493. 116 U.S. 616 (1886).

494. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996); Singer v. Fulton Cnty. Sheriff, 

63 F.3d 110, 118–19 (2d Cir. 1995).
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495. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); accord Maryland v. Pringle, 540 U.S. 

366, 370–71 (2003).

496. Woods v. City of Chi., 234 F.3d 979, 997 (7th Cir.), cert. denied, 534 U.S. 955 (2001).

497. Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective intentions play no 

role in ordinary, probable-cause Fourth Amendment analysis.”).

Mass Arrests: When the police arrest a large number of individuals who participated in 

a mass protest, the police must have “a reasonable belief that the entire crowd is acting as a 

unit and therefore all members of the crowd violated the law.” Carr v. District of Columbia, 

587 F.3d 401, 408 (D.C. Cir. 2009). See also Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th 

Cir.), cert. denied, 133 S. Ct. 526 (2012).

498. Devenpeck v. Alford, 543 U.S. 146, 153–54 (2004).

499. Virginia v. Moore, 553 U.S. 164 (2008). Furthermore, the Court in Moore held that 

a search incident to such an arrest complies with the Fourth Amendment.

Continued Detention of Arrestee: If the state seeks to hold a suspect who was subject 

to a warrantless arrest, the Fourth Amendment requires a probable cause determination 

from a magistrate judge within a reasonable time. Gerstein v. Pugh, 420 U.S. 103 (1975). 

Forty-eight hours is a presumptively reasonable time. County of Riverside v. McLaughlin, 

500 U.S. 44 (1991).

500. Payton v. New York, 445 U.S. 573, 587–88 (1980). See also Steagald v. United States, 

451 U.S. 204, 205–06 (1981) (as general rule police cannot lawfully search for subject of 

arrest warrant in third-party’s home without search warrant). An in-home arrest without 

a warrant is constitutional only if the officer either gets consent to enter the home or reasonably finds exigent circumstances. Payton, 445 U.S. at 587–88. See also Ryburn v. Huff, 

132 S. Ct. 987, 991–92 (2012) (per curiam) (officers who made warrantless entry in home 

protected by qualified immunity because they had objectively reasonable belief violence 

was imminent); Michigan v. Fisher, 130 S. Ct. 546, 548–49 (2009) (“exigent circumstances” 

evaluated on objective basis without regard to officers’ subjective intent; emergency aid 

exception allows officers to enter home without warrant to render emergency assistance to 

injured occupant or to protect occupant from imminent injury); Brigham City v. Stuart, 

547 U.S. 398, 403–06 (2006) (law enforcement officer may enter home without warrant if 

officer reasonably believes entry needed to render emergency assistance “to injured occupant or to protect an occupant from imminent injury”).

501. See Davis v. Rodriguez, 364 F.3d 424, 434 n.8 (2d Cir. 2004) (describing circuit 

conflict).

502. See, e.g., Dubner v. San Francisco, 266 F.3d 959, 965 (9th Cir. 2001); Rankin v. 

Evans, 133 F.3d 1425, 1436 (11th Cir. 1998); Larez v. Holcomb, 16 F.3d 1513, 1517 (9th Cir. 

1994).

503. Larez, 16 F.3d at 1517.

504. Dubner, 266 F.3d at 965.

505. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985).

506. See, e.g., Raysor v. Port Auth., 768 F.2d 34, 40 (2d Cir. 1985) (“defendant has the 

burden of proving that the arrest was authorized”). 

507. See, e.g., Sutton v. Metro. Gov’t of Nashville & Davidson Cnty., 700 F.3d 865, 872–

76 (6th Cir. 2012).
Notes

237

508. 392 U.S. 1 (1968).

509. Id. at 21.

510. United States v. Cortez, 449 U.S. 411, 417–18 (1981).

511. Terry, 392 U.S. at 30.

512. Whren v. United States, 517 U.S. 806, 810–16 (1996). Section 1983 challenges to 

stops and frisks are subject to the defense of qualified immunity. See, e.g., Jewett v. Anders, 

521 F.3d 818, 823 (7th Cir. 2008).

513. United States v. Arvizu, 534 U.S. 266 (2002); Florida v. J.L., 529 U.S. 266 (2000); 

Illinois v. Wardlow, 528 U.S. 119 (2000); Alabama v. White, 496 U.S. 325 (1990); United 

States v. Sokolow, 490 U.S. 1 (1989).

514. For a recent example of a case involving strip searches of detainees, see Florence 

v. Bd. of Chosen Freeholders, 132 S. Ct. 1510 (2012) (holding in routine “strip searches” 

of detainees charged with minor offenses and placed in general jail populations, Fourth 

Amendment does not require individualized reasonable suspicion).

515. For in-depth coverage, see Wayne R. LaFave, Search and Seizure, A Treatise on the 

Fourth Amendment (5th ed. West 2012).

516. General Definition of “Search”: Florida v. Jardines, 133 S. Ct. 1409 (2013); Jones v. 

United States, 132 S. Ct. 945 (2012); Katz v. United States, 389 U.S. 347 (1967).

Aerial Surveillance: Florida v. Riley, 488 U.S. 445 (1989); Dow Chem. Co. v. United 

States, 476 U.S. 227 (1986); California v. Ciraolo, 476 U.S. 207 (1986).

Automobile Exception: California v. Carney, 471 U.S. 386 (1980); Chambers v. Maroney, 

399 U.S. 42 (1970); Carroll v. United States, 267 U.S. 132 (1925).

Bank Records: United States v. Miller, 425 U.S. 435 (1976).

Beeper Tracking: Karo v. United States, 468 U.S. 705 (1984); Knotts v. United States, 460 

U.S. 276 (1983).

Automobile Checkpoints: Illinois v. Lidster, 540 U.S. 419 (2001); City of Indianapolis v. 

Edmond, 531 U.S. 32 (2000); Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990); Delaware v. Prouse, 440 U.S. 648 (1979).

Consent Searches: Schneckcloth v. Bustamonte, 412 U.S. 218 (1973). See also Fernandez 

v. California, 134 S. Ct. 1126 (2014); Georgia v. Randolph, 547 U.S. 103 (2006); Florida v. 

Jimeno, 500 U.S. 248 (1991); Bumper v. North Carolina, 391 U.S. 543 (1968).

Closely Regulated Business: New York v. Burger, 482 U.S. 691 (1987). 

Curtilege: Oliver v. United States, 466 U.S. 170 (1984); United States v. Dunn, 480 U.S. 

294 (1987).

Dog Sniffs: Florida v. Jardines, 133 S. Ct. 1409 (2013) (front porch); Illinois v. Caballes, 

543 U.S. 405 (2006) (car); United States v. Place, 462 U.S. 696 (1983) (luggage). 

Drug Testing: Bd. of Educ. of Indep. Sch. Dist. No. 92 Pottawatomie Cnty. v. Earls, 536 

U.S. 822 (2002) (students); Ferguson v. City of Charleston, 532 U.S. 67 (2001) (pregnant 

women); Chandler v. Miller, 520 U.S. 305 (1997) (candidates for public office); Vernonia 

Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) (students); Skinner v. Ry. Labor Execs.’ Ass’n, 489 

U.S. 602 (1989) (railway workers); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 

(1989) (U.S. Customs Service employees).
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Exigent Circumstances: Ryburn v. Huff, 132 S. Ct. 987 (2012) (per curiam); Michigan v. 

Fisher, 130 S. Ct. 546 (2009); Brigham City v. Stuart, 547 U.S. 398 (2006). See also Kentucky 

v. King, 131 S. Ct. 1849 (2011).

GPS Tracking: Jones v. United States, 132 S. Ct. 945 (2012).

Home: Kyllo v. United States, 533 U.S. 27 (2001) (thermal images); Steagald v. United 

States, 451 U.S. 204 (1981) (search for arrestee in home of another); Payton v. New York, 

445 U.S. 573 (1980) (search for arrestee in arrestee’s home).

Housing and Building Code Inspections: Camara v. Mun. Court of S.F., 387 U.S. 523 

(1987) (housing code); See v. City of Seattle, 387 U.S. 541 (1967) (building code). See also

Michigan v. Tyler, 436 U.S. 499 (1978) (fire inspector’s inspection of fire-damaged property).

Inventory Searches: Colorado v. Bertine, 479 U.S. 367 (1987); Illinois v. Lafayette, 462 

U.S. 640 (1983); South Dakota v. Opperman, 428 U.S. 364 (1976).

Luggage: Bond v. United States, 529 U.S. 334 (2000); United States v. Place, 462 U.S. 696 

(1983).

Open Fields: Oliver v. United States, 466 U.S. 170 (1984). See also United States v. Dunn, 

480 U.S. 294 (1987).

Parolees and Probationers: Samson v. California, 547 U.S. 843 (2006) (parolees); United 

States v. Knights, 534 U.S. 112 (2001) (probationers). 

Pen Register: Smith v. Maryland, 442 U.S. 735 (1979).

Probable Cause to Search: Florida v. Harris, 133 S. Ct. 1050 (2013); Illinois v. Gates 462 

U.S. 213 (1983).

Search Incident to Arrest: Riley v. California, 189 L. Ed.2d 430 (2014) (search of cell 

phone digital information incident to arrest); Arizona v. Gant, 556 U.S. 332 (2009) (arrest 

of driver or passenger); United States v. Robinson, 414 U.S. 218 (1973) (arrest in public 

place); Chimel v. California, 395 U.S. 752 (1969) (arrest in home). 

Students: Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. 364 (2009); New Jersey v. 

T.L.O., 469 U.S. 325 (1985). See also decisions cited under “Drug Testing.”

Trash Placed at Curb for Collection: California v. Greenwood, 486 U.S. 35 (1988).

Workplace: City of Ontario v. Quon, 130 S. Ct. 2619 (2010); O’Connor v. Ortega, 480 

U.S. 709 (1987).

517. Compare, e.g., Der v. Connolly, 666 F.3d 1120, 1126–29 (8th Cir. 2012) (§ 1983 

plaintiff challenging warrantless search of home bears burden of showing she did not knowingly and voluntarily consent to entry into home, and objectively unreasonable for officer 

to believe emergency justified entry into home), and Bogan v. City of Chi., 644 F.3d 563, 

568–71 (7th Cir. 2011) (in § 1983 challenge to warrantless search in which defendants alleged exigent circumstances, plaintiff has ultimate burden of persuasion to establish Fourth 

Amendment violation, including showing search not justified by exigent circumstances), 

cert. denied, 132 S. Ct. 1538 (2012), with Armijo v. Peterson, 601 F.3d 1065, 1070 (10th Cir. 

2010) (per curiam) (burden on defendant-officer to establish exigent circumstances). See 

also Am. Fed’n of State, Cnty. & Mun. Emps. v. Scott, 717 F.3d 851, 880 (11th Cir. 2013) 

(plaintiff bears burden of persuasion on every element of § 1983 claim). 

518. Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007), cert. denied, 555 U.S. 811 

(2008); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005). See Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir. 1998).
Notes

239

519. Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (citation omitted). 

Accord Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007) (where facts not in dispute, existence 

of probable cause is issue of law for court).

520. See infra Chapter 16.

521. 544 U.S. 93 (2005).

522. Id. at 95, 98–101.

523. 452 U.S. 692 (1981).

524. Muehler, 544 U.S. at 98.

525. Summers, 452 U.S. at 705 & n.19. See also Bailey v. United States, 133 S. Ct. 1031 

(2013) (Summers rule applies only to persons in immediate vicinity of premises).

526. Muehler, 544 U.S. at 95, 98–99.

527. Id. at 100. When the Muehler safety interests are absent, continued handcuffing 

during the execution of a search warrant may constitute excessive force. See, e.g., Bletz v. 

Gribble, 641 F.3d 743, 755 (6th Cir. 2011); Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 

2010). 

528. Muehler, 544 U.S. at 103–04 (Kennedy, J., concurring).

529. Id. at 100–01.

530. 510 U.S. 266 (1994).

531. Id. at 270 n.4. Some courts had also required the challenged governmental conduct 

to be “egregious.” Id.

532. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996).

533. Wallace v. Kato, 549 U.S. 384, 390, n.2 (2007).

534. See 1 Schwartz, supra note 246, § 3.18. See, e.g., Nieves v. McSweeney, 241 F.3d 46, 

53–54 (1st Cir. 2001) (malicious prosecution claim may not be based upon substantive due 

process).

535. Albright, 510 U.S. at 276–79 (Ginsburg, J., concurring).

536. Id. at 285–86 (Kennedy, J., concurring).

537. Id. at 283.

538. Id. at 285–86. The Seventh Circuit takes the position that a § 1983 malicious prosecution claim does not lie when state law provides an adequate remedy for pursuing the 

claim in state court. Fox v. Hayes, 600 F.3d 819, 841 (7th Cir. 2010); Parish v. City of Chi., 

594 F.3d 551, 552 (7th Cir. 2009); Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001). 

But see Julian v. Hanna, 732 F.3d 842, 847–48 (7th Cir. 2013) (Indiana law doesn’t provide 

adequate state law remedy); see also Nieves, 241 F.3d at 53.

539. Albright, 510 U.S. at 286–87 (Souter, J., concurring).

540. Id. at 289.

541. Id. at 290–91.

542. Id. at 302–06 (Stevens, J., dissenting).

543. Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir. 1999) (concurring opinion). See also

Wallace v. Kato, 549 U.S. 384, 390, n.2 (2007) (citing 1 Schwartz, Section 1983 Litigation, 

§ 3.18[C], pp. 3-605 to 3-629); Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (referring 

to “murky waters” of § 1983-based malicious prosecution claims).

544. 1 Schwartz, supra note 246, § 3.18.
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545. See, e.g., Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010); Manganiello v. City of N.Y., 612 F.3d 149, 160–61 (2d Cir. 2010).

Probable Cause: Probable cause to prosecute renders a seizure reasonable. Durham v. 

Horner, 690 F.3d 183, 189 (4th Cir. 2012). Probable cause exists when a reasonable person 

can conclude that there are “lawful grounds for prosecuting the defendant in the manner 

complained of.” Rounseville v. Zahl, 13 F.3d 625, 629–30 (2d Cir. 1994). A grand jury indictment is generally considered conclusive evidence of probable cause, but will not “shield a 

police officer who deliberately supplied misleading information that influenced the [grand 

jury’s] decision.” Durham, 690 F.3d at 189 (quoting Goodwin v. Metts, 885 F.2d 157, 162 

(4th Cir. 1989)).

Malice: In Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010), the Sixth Circuit found that 

a plaintiff asserting such a claim must prove: (1) “that a criminal prosecution was initiated 

against the plaintiff and” that the defendant made, influenced, or participated in the decision to prosecute; (2) a lack of probable cause for the prosecution; (3) “‘a deprivation of 

liberty,’ as understood in our Fourth Amendment jurisprudence, apart from the initial seizure”; and (4) resolution of the criminal prosecution in favor of the accused. Id. at 308–09. 

The court joined the Fourth Circuit in holding that malice is not an element of the claim. 

See Brooks v. City of Winston-Salem, 85 F.3d 178, 184 n.5 (4th Cir. 1996). The Second, 

Third, Ninth, Tenth, and Eleventh Circuits have ruled that malice is an element of a § 1983 

malicious prosecution claim. See, e.g., Manganiello, 612 F.3d at 160–61; McKenna v. City of 

Phila., 582 F.3d 447, 461 (3d Cir. 2009); Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 

(9th Cir. 2009); Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008), cert. denied, 129 S. 

Ct. 1526 (2009); Grider, 618 F.3d at 1256 & n.24. The Third Circuit defined malice in the 

malicious prosecution context as “ill will in the sense of spite, lack of belief by the actor 

himself in the propriety of the prosecution, or its use for an extraneous improper purpose.” 

Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). “Malice may be inferred from the absence of 

probable cause.” Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993).

The court in Sykes reasoned that characterizing the § 1983 claim as one for malicious 

prosecution is “unfortunate and confusing.” The claim requires a showing of an unreasonable seizure under the Fourth Amendment, a claim not concerned with malice. The court 

stressed that to distinguish the “malicious prosecution” claim from a false arrest claim, it 

is necessary to determine whether there was probable cause to initiate the prosecution. 

Further, an officer may be responsible for commencing a criminal proceeding even if she 

did not make the decision to prosecute if she influenced or participated in that decision. 

Favorable Transaction: For a criminal prosecution to terminate in favor of the accused, 

the final determination must “indicate the innocence of the accused.” Murphy v. Lynn, 118 

F.3d 938, 948 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998). For example, an adjournment in contemplation of dismissal is not considered a “favorable termination.” Id. at 949.

546. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99 (1st Cir. 2013) (noting split on which 

Fourth, Fifth, Sixth, and Tenth Circuits have adopted purely Fourth Amendment approach 

to § 1983 malicious prosecution claims, while Second, Third, Ninth, and Eleventh Circuits 

“have adopted a blended constitutional/common law approach, requiring the plaintiff to 

demonstrate a Fourth Amendment violation and all the elements of a common law malicious prosecution claim”; First Circuit adopted pure Fourth Amendment approach).
Notes

241

547. Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009).

548. Post-Albright § 1983 malicious prosecution decisions by circuit:

• First Circuit: Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013); Nieves v. 

McSweeney, 241 F.3d 46 (1st Cir. 2001)

• Second Circuit: Manganiello v. City of N.Y., 612 F.3d 149 (2d Cir. 2010)

• Third Circuit: Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009)

• Fourth Circuit: Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000), cert. denied, 531 

U.S. 1130 (2001)

• Fifth Circuit: Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003) (en banc), cert. denied, 543 U.S. 808 (2004)

• Sixth Circuit: Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010)

• Seventh Circuit: Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013); Newsome v. McCabe, 

256 F.3d 747 (7th Cir. 2001) (en banc)

• Eighth Circuit: Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001)

• Ninth Circuit: Lacey v. Maricopa Cnty., 693 F.3d 896 (9th Cir. 2012) (en banc)

• Tenth Circuit: Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004)

• Eleventh Circuit: Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir.), cert. denied,

543 U.S. 919 (2004)

• D.C. Circuit: Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007)

Malicious Abuse of Civil Process: The prevailing view is that “section 1983 liability . . . 

may not be predicated on a claim of malicious abuse of ... civil process.” Green v. Mattingly, 585 F.3d 97, 104 (2d Cir. 2009). See, e.g., Hickson v. Marina Assocs., 743 F. Supp. 

2d 362, 372–73 (D.N.J. 2010):

A section 1983 claim for malicious abuse of process lies where prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law. The crux of 

this action is the perversion of the legal process to achieve an objective other than its intended 

purpose. When process is used to effect an extortionate demand, or to cause the surrender of 

a legal right, . . . a cause of action for abuse of process can be maintained.... [T]here must be 

some proof of a definite act or threat not authorized by the process, or aimed at an objective 

not legitimate in the use of the process.

(quoting Ference v. Twp. of Hamilty, 538 F. Supp. 2d 785, 798 (D.N.J. 2008)). 

549. See Sykes, 625 F.3d at 310 (designating constitutional claim as “malicious prosecution” claim is unfortunate and confusing); Tully v. Barada, 599 F.3d 591, 595 (7th Cir. 2010) 

(citing Martin A. Schwartz, 1 Section 1983 Litigation § 3.18[a] (2008 Supplement)). 

550. Wilson v. Seiter, 501 U.S. 294, 298–303 (1991).

551. See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994).

552. Id.

553. Id.

554. 429 U.S. 97 (1976).

555. Id. at 106. See also De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013).

556. Id. at 105–06. In Brown v. Plata, 131 S. Ct. 1910 (2011), the Supreme Court affirmed 

an order of a three-judge court convened pursuant to the Prison Litigation Reform Act, 18 

U.S.C. § 3626, that found that California prison officials engaged in systemic constitutional 
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denials of medical and mental health care to prisoners, because of severe overcrowding. The 

order required California to reduce its prison population by as many as 46,000 prisoners.

557. 692 F.3d 564 (7th Cir. 2012).

558. Id. at 567–69.

559. Id. at 568.

560. Id. at 569. Conversely, a jury should not be instructed on liability in a “damages 

only” trial. Guzman v. City of Chi., 689 F.3d 740, 746–48 (7th Cir. 2012).

561. 501 U.S. 294 (1991).

562. Id. at 302–03.

563. Id. at 300–03.

564. Id. at 304–05.

565. Id.

566. Id. at 305.

567. Id. at 301–02.

568. Id. at 311 & n.2 (White, J., concurring).

569. 509 U.S. 25 (1993).

570. Id. at 32–35.

571. Id.

572. 511 U.S. 825 (1994).

573. Id. at 829 (“requiring a showing that the official was subjectively aware of the 

risk”).

574. Id. at 832–34.

575. Id. at 837–38.

576. Id. at 835.

577. Id. at 837–38.

578. Id. at 843 n.8.

579. Id. at 842.

580. Hudson v. McMillian, 503 U.S. 1 (1992) (discussed supra Chapter 4, § V.B).

581. See id. at 5–7.

582. Id. at 6.

583. Id. at 5–6.

584. 427 U.S. 347 (1976).

585. 445 U.S. 507 (1980).

586. Id. at 518. Some courts, however, still refer to the “policy-making” exception. See, 

e.g., Embry v. City of Calumet City, 701 F.3d 231, 235 (7th Cir. 2012) (“exception applies not 

only when a new political party takes power, but also includes ‘patronage dismissals when 

one faction of a party replaces another faction of the same party’”) (quoting Tomczak v. 

City of Chi., 765 F.2d 633, 640 (7th Cir. 1985)).

587. Id. See Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991, 999 (N.D. Ill. 2006) 

(citing Lohorn v. Michael, 913 F.2d 327, 334 (9th Cir. 1998)).

588. 497 U.S. 62 (1990).

589. Id. at 74–75.

590. Id. at 74.

591. For an analysis of these cases, see 1 Schwartz, supra note 246, § 3.11[D]. 
Notes

243

592. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), discussed 

infra text accompanying notes 1069–70.

593. Soto-Padro v. Public Bldgs. Auth., 675 F.3d 1, 6 (1st Cir. 2012).

594. Barry v. Moran, 661 F.3d 696, 708 (1st Cir. 2011).

595. Id. (quoting Stratton v. Dep’t for the Aging for City of N.Y., 132 F.3d 869, 880 (2d 

Cir. 1997)).

596. Barry, 661 F.3d at 708.

597. 518 U.S. 712 (1996).

598. Id. at 722–23.

599. Garcetti v. Ceballos, 547 U.S. 410 (2006).

600. See Connick v. Meyers, 461 U.S. 138 (1983).

601. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

602. Connick, 461 U.S. 138. A public employee’s lawsuit or other formal grievance is 

protected by the First Amendment Petition Clause only if it is a matter of public concern. 

Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011).

603. Connick, 461 U.S. at 147–48. See also Lane v. Franks, 189 L. Ed. 2d 312 (2014).

604. Connick, 461 U.S. at 147–48

605. Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996). See also Lane, 

189 L. Ed. 2d at 325 (to be matter of public concern, speech must be subject of legitimate 

news interest, that is, of general interest and concern to the public).

606. See, e.g., Sousa v. Roque, 578 F.3d 164, 170, 174 (2d Cir. 2009); Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370, 377 (7th Cir. 2009), cert. denied, 130 S. Ct. 1059 

(2010).

607. Connick, 461 U.S. at 147 n.7. When the public concern issue is close, a court may 

assume arguendo that the speech was of public concern and proceed directly to “Pickering

balancing” (referring to Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)); Blackman v. 

N.Y. City Transit Auth., 491 F.3d 95, 97, 99–100 (2d Cir. 2007).

608. Waters v. Churchill, 511 U.S. 661, 678–79 (1994) (O’Connor, J.) (plurality opinion 

joined by Rehnquist, C.J., Souter & Ginsburg, JJ.).

609. Id. at 677–79.

610. Id. at 678 (plurality opinion).

611. Id.

612. 547 U.S. 410 (2006).

613. Id. at 421–25.

614. Id. at 424–25. 

615. 189 L. Ed. 2d 312 (2014).

616. Id. at 323.

617. Id. at 324. The Court in Lane found that the subpoenaed testimony in question 

was clearly a matter of public concern because it pertained to public corruption from misuse of state funds. Further, Pickering balancing, discussed at pages 71–72, clearly favored 

the § 1983 plaintiff. Nevertheless, the defendant, who was sued in his personal capacity 

for money damages, was protected from liability by qualified immunity because the First 

Amendment law as to whether a public employee’s subpoenaed testimony is protected 

speech was not clearly established when the defendant fired the plaintiff.
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618. See Fox v. Traverse City Area Pub. Sch. Bd. of Ed., 605 F.3d 345, 350–51 (6th Cir.), 

cert. denied, 131 S. Ct. 643 (2010); Charles v. Grief, 522 F.3d 508, 513 n.17 (5th Cir. 2008); 

Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007); Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007). 

619. See Andrew v. Clark, 561 F.3d 261, 266–68 (4th Cir. 2009). 

620. See Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 

2008); Foraker v. Claffinch, 501 F.3d 231, 240 (3d Cir. 2007). The Supreme Court has not 

determined, and the courts of appeals disagree, about how Pickering balancing should apply 

to the speech of a policy-making or confidential employee. See Leslie v. Hancock Cnty. Bd. 

of Educ., 720 F.3d 1338, 1347–49 (11th Cir. 2013) (citing inter alia three lines of appellate 

authority).

621. See 1 Schwartz, supra note 246, § 3.11.

622. 391 U.S. 563 (1968).

623. Id. at 570 n.3. “[T]o trigger the Pickering balancing test, a public employee must, 

with specificity, demonstrate the speech at issue created workplace disharmony, impeded 

the plaintiff’s performance or impaired working relationships.” Lindsey v. City of Orrick, 

491 F.3d 892, 900 (8th Cir. 2007). 

624. Connick v. Meyers, 461 U.S. 138, 151–52 (1983).

625. Rankin v. McPherson, 483 U.S. 378, 390–91 (1987). See also Lane v. Franks, 189 L. 

Ed. 2d 312, 326 (2014).

626. Jackson v. Ala., 405 F.3d 1276, 1285–86 (11th Cir. 2005); Lewis v. Cowen, 165 F.3d 

154, 164 (2d Cir. 1999). The court in Jackson, 405 F.3d at 1285, acknowledged that Pickering

balancing may generate subsidiary issues of fact.

627. See, e.g., Diaz-Bigio v. Santini, 652 F.3d 45, 53 (1st Cir. 2011); Pike v. Osborne, 301 

F.3d 182, 185 (4th Cir. 2002); Brewster v. Bd. of Educ., 149 F.3d 971, 980 (9th Cir. 1998).

628. See Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) (in 

which the Court analyzed the so-called “dual motive” issue).

629. A prisoner’s filing of a judicial proceeding or prison grievance is constitutionally 

protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Franco v. Kelly, 854 

F.2d 584, 590 (2d Cir. 1988).

630. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Dawes v. Walker, 239 F.3d 489, 

492 (2d Cir. 2001); Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). See also Rhodes v. 

Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). 

631. Rauser, 241 F.3d at 333 (quoting Allah, 229 F.3d at 224–25). Accord Rhodes, 408 F.3d 

at 568–69. See also Santiago v. Blair, 707 F.3d 984, 993–94 (8th Cir. 2013) (First Amendment 

claim that adverse prison conditions were imposed on prisoner in retaliation for prisoner’s exercise of First Amendment rights is not governed by Sandin v. Conner, 515 U.S. 472 

(1995), “atypical and significant hardship” standard; Sandin governs due process liberty 

interest issue).

632. Mays v. Springborn, 719 F.3d 631, 633–35 (7th Cir. 2013) (ruling that even if prisoner makes this showing, defendant will prevail if he shows, by preponderance of evidence, 

that same adverse action would have been taken even if there had been no retaliatory motive). See Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006) (“[A] defendant may 

successfully defend a [prisoner’s] retaliatory discipline claim by showing ‘some evidence’ 
Notes

245

that the inmate actually committed a rule violation. . . . The fact that the conduct violation 

was later expunged does not mean that there was not some evidence for its imposition.”).

633. See Watkins v. Kasper, 599 F.3d 791, 794–97 (7th Cir. 2010) (prisoner employee 

who asserts First Amendment retaliation claim need not demonstrate that his speech was 

of public concern, but must show that speech was consistent with legitimate penological 

interests); Bridges v. Gilbert, 557 F.3d 541, 550–51 (7th Cir. 2009) (prisoner asserting free 

speech retaliation claim need not establish speech was of public concern).

634. Rauser, 241 F.3d at 333.

635. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001).

636. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996); Flaherty v. Coughlin, 713 F.2d 

10, 13 (2d Cir. 1983). 

637. “[W]here . . . circumstantial evidence of a retaliatory motive is sufficiently compelling, direct evidence is not invariably required.” Bennett v. Goord, 343 F.3d 133, 139 (2d 

Cir. 2003).

638. Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002).

639. 547 U.S. 250 (2006) (Bivens action).

640. Hartman, 547 U.S. at 261–62. See also infra Chapter 15, § II.C.

In a subsequent decision, Hartman v. Moore, the D.C. Circuit Court of Appeals followed 

unanimous circuit court authority holding that a grand jury indictment is prima facie, not 

conclusive, evidence of probable cause, which can be rebutted. Moore v. Hartman, 571 F.3d 

62, 67 (D.C. Cir. 2009).

641. Reichle v. Howards, 132 S. Ct. 2088, 2096 (2012) (citing McCabe v. Parker, 608 

F.3d 1068, 1075 (8th Cir. 2010); Phillips v. Irvin, 222 F. App’x 928, 929 (11th Cir. 2007) (per 

curiam); Barnes v. Wright, 449 F.3d 709, 720 (6th Cir. 2006)). See also Mesa v. Prejean, 543 

F.3d 264, 273 (5th Cir. 2008).

642. Howards v. McLaughlin, 634 F.3d 1131, 1145–49 (10th Cir. 2011), rev’d on other

grounds, Reichle, 132 S. Ct. at 2096. See also Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 

1233–35 (9th Cir. 2006) (alleged search and seizure of property in retaliation for exercise 

of First Amendment rights states proper claim even if search and seizure supported by 

probable cause).

643. 132 S. Ct. 2088 (2012).

644. Id. at 2096.

645. Id. at 2095 (citation omitted).

646. See Thayer v. Chiczewski, 697 F.3d 514 (7th Cir. 2012). Relying on Reichle, 132 

S. Ct. 2095–97, the Seventh Circuit ruled that qualified immunity defeated the retaliatory 

arrest claim. “Probable cause, if not a complete bar to Thayer’s First Amendment retaliatory 

arrest claim, provides strong evidence that he would have been arrested regardless of any 

illegitimate animus.” Thayer, 697 F.3d at 529.

647. 528 U.S. 562 (2000).

648. Id. at 564.

649. Id. at 565. Dismissal of a “class-of-one” claim is proper when the plaintiff offers 

only conclusory allegations of similarly situated persons. Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1220 (10th Cir. 2011). The Seventh Circuit recognized that whether others are similarly situated could create a genuine issue of material fact, but found, in the case 
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at hand, that the district court properly resolved the issue on summary judgment. Harvey v. 

Town of Merrillville, 649 F.3d 526, 531–32 (7th Cir. 2011).

650. 553 U.S. 591 (2008).

651. Id. at 603.

652. Id. at 599.

653. Geinosky v. City of Chi., 675 F.3d 743, 747 (7th Cir. 2012) (quoting McDonald v. 

Vill. of Winnetka, 371 F.3d 992, 1009 (7th Cir. 2004)). See also Cordi-Allen v. Conlon, 494 

F.3d 245, 255 (1st Cir. 2007) (class-of-one claim not “vehicle for federalizing run-of-themine zoning, environmental, and licensing decision”).

654. Thayer v. Chiczewski, 697 F.3d 514, 532 (7th Cir. 2012). For a breakdown by circuit, 

see 1 Schwartz, supra note 246, § 3.10[B].

Chapter 6: Enforcement of Federal Statutes Under § 1983, p. 75

655. 448 U.S. 1 (1980).

656. See, e.g., City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 120–21 (2005); 

Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002); Suter v. Artist M., 503 U.S. 347, 363 (1992); 

Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 10–11 (1981).

657. Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Golden State Transit Corp. v. 

City of L.A., 493 U.S. 103 (1989)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 282 (2002).

658. Blessing, 520 U.S. at 340 (citing Wright v. City of Roanoke Redevelopment & Hous. 

Auth., 479 U.S. 418, 430 (1987)).

659. Id. at 340–41 (quoting Wright, 479 U.S. at 430).

660. Id. at 341 (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 500 (1990); Pennhurst 

State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)).

661. Blessing, 520 U.S. at 342.

662. 451 U.S. 1 (1981).

663. Id. at 18 (citing former § 6010, which is now § 6009).

664. Id.

665. Id. at 17.

666. Id. at 23.

667. Id. at 20.

668. Id. at 10–11.

669. 493 U.S. 103 (1989).

670. See 29 U.S.C. §§ 151–169 (1988 & Supp. V).

671. Golden State, 493 U.S. at 112–13.

672. The Court also held that the Supremacy Clause itself is not a source of rights enforceable under § 1983. Golden State, 493 U.S. at 107–08. See infra Chapter 5.

673. 479 U.S. 418 (1987).

674. Id. at 420 (citations omitted).

675. Id. 

676. Id. at 421.

677. Id. at 430.

678. 496 U.S. 498 (1990).

679. See 42 U.S.C. §§ 1396–1396v (1998 & Supp. V).
Notes

247

680. Id. § 1396a(a)(13).

681. Wilder, 496 U.S. at 510.

682. Id. at 512.

683. Id. at 519.

684. Id. In 2006, Congress eliminated the Boren Amendment language so that a state is 

no longer required by federal statute “to make ‘assurances’ that its reimbursement rates will 

achieve certain objectives. Rather, a state now must provide ‘a public process for determination of rates of payment’ for nursing facilities, and intermediate care facilities that allows for 

provider participation. See [42 U.S.C.] § 1396a(a)(13)(A) (2006).” Developmental Servs. 

Network v. Douglas, 666 F.3d 540, 546 n.13 (9th Cir. 2011).

685. 503 U.S. 347 (1992).

686. Id. at 350. See 42 U.S.C. §§ 620–628, 670–679a (1998 & Supp. V).

687. 42 U.S.C. §§ 620–628, 670–679a (1998 & Supp. V).

688. Id. § 671(a)(15).

689. Suter, 503 U.S. at 357.

690. Id.

691. Id. at 359.

692. Id. at 360. 

Congressional Response to Suter: Congress responded to Suter by passing an amendment 

to the Social Security Act, which provides that in all pending and future actions

brought to enforce a provision of the [Social Security Act], such provision is not to be deemed 

unenforceable because of its inclusion in a section of this chapter requiring a State plan or 

specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan 

requirements other than by overturning any such ground applied in Suter v. Artist M. [cite 

omitted], but not applied in prior Supreme Court decisions respecting such enforceability; 

provided, however, that this section is not intended to alter the holding in Suter v. Artist M.

[cite omitted] that section 471(a)(15) [42 U.S.C. § 671(a)(15)] of this title is not enforceable 

in a private right of action.

42 U.S.C. § 1320a-2 (amended Oct. 20, 1994).

The Eleventh Circuit ruled that “Section 1320a-2 does not purport to reject any and 

all grounds ruled upon in Suter; it purports only to overrule certain grounds—i.e., that a 

provision is unenforceable simply because of its inclusion in a section requiring a state plan 

or specifying the contents of such a plan.” Harris v. James, 127 F.3d 993, 1002–03 (11th Cir. 

1997). Accord Planned Parenthood of Ind. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 

962, 976 n.9 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 & 2738 (2013). On the other hand, 

a federal district court interpreted § 1320a-2 to mean that, while the holding of Suter with 

respect to the “reasonable efforts” provision of the Adoption Act remains good law,

the amendment overrules the general theory in Suter that the only private right of action 

available under a statute requiring a state plan is an action against the state for not having that 

plan. Instead, the previous tests of Wilder and Pennhurst apply to the question of whether or 

not the particulars of a state plan can be enforced by its intended beneficiaries.

Jeanine B. v. Thompson, 877 F. Supp. 1268, 1283 (E.D. Wis. 1995). See also BK & SK v. 

N.H. Dep’t of Health & Human Servs., 814 F. Supp. 2d 59, 68–70 (D.N.H. 2011) (discussing 
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different judicial interpretations of § 1320a-2 and adopting view that it means only that 

mere fact federal statute refers to requirements of “state plan” does not render federal statute unenforceable under § 1983).

693. 520 U.S. 329 (1997).

694. Title IV-D of the Social Security Act, as added, 88 Stat. 2351 and as amended, 42 

U.S.C.A. §§ 651–669b (Supp. 1997).

695. Blessing, 520 U.S. at 342–43. See also L.J. v. Wilbon, 633 F.3d 297, 309 (4th Cir. 2011) 

(“Whether a plaintiff has a right to bring an action under a particular provision of [the 

Adoption Assistance and Child Welfare Act] requires a section-specific inquiry.”) (citing 

Blessing, 520 U.S. at 342).

696. Blessing, 520 U.S. at 342.

697. 536 U.S. 273 (2002).

698. 20 U.S.C. § 1232g(b)(1) (1994).

699. Gonzaga Univ., 536 U.S. at 278, 283.

700. Id. at 290.

701. Id.

702. Blessing, 520 U.S. at 341. Accord City of Rancho Palos Verdes v. Abrams, 544 U.S. 

113, 120 (2005).

703. See Smith v. Robinson, 468 U.S. 992 (1984). See also City of Rancho Palos Verdes, 

544 U.S. at 120.

704. Middlesex Cnty. Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981).

705. 453 U.S. 1 (1981).

706. See 33 U.S.C. §§ 1251–1387 (1988 & Supp. V).

707. See id. §§ 1401–1445.

708. See Middlesex Cnty. Sewerage Auth., 453 U.S. at 12.

709. Id.

710. Id. at 13.

711. Id. at 20.

712. 468 U.S. 992 (1984).

713. Id. at 1009.

714. See 20 U.S.C. §§ 1400–1485 (1988 & Supp. V). In 1991, the Act was renamed Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1491 (1994).

715. Smith, 468 U.S. at 1009.

716. Id. at 1024 (Brennan, J., joined by Marshall & Stevens, JJ., dissenting).

717. See 20 U.S.C. § 1415(f) (1988 & Supp. V). See also Chapter 5, infra.

718. 544 U.S. 113 (2005).

719. Id. at 114.

720. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005); Gonzaga Univ. v. Doe, 

536 U.S. 273 (2002); Blessing v. Freestone, 520 U.S. 329 (1997); Suter v. Artist M., 503 U.S. 

347 (1992).

721. 536 U.S. 273 (2002).

722. Id. at 290.

723. Id. at 281.

724. 451 U.S. 1 (1981).
Notes

249

725. See id. at 280–81, referring to Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990); Wright 

v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987).

726. Planned Parenthood of Ind. v. Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 

977 (7th Cir. 2012), cert. denied, 133 S. Ct. 2736 & 2738 (2013).

727. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 4.04[A] 

(4th ed. 2014).

728. S. Camden Citizens in Action v. N.J. Dep’t of Envtl. Prot., 274 F.3d 771, 790 (3d Cir. 

2001), cert. denied, 536 U.S. 939 (2002). See also Shakhnes v. Berlin, 689 F.3d 244, 250–51 

(2d Cir. 2012); Taylor v. Hous. Auth. of New Haven, 645 F.3d 152, 153–54 (2d Cir. 2011); 

Guzman v. Shewry, 552 F.3d 941, 952–53 (9th Cir. 2009); Save Our Valley v. Sound Transit, 

335 F.3d 932, 939 (9th Cir. 2003); Houston v. Williams, 547 F.3d 1357, 1362–63 (11th Cir. 

2008); Johnson v. City of Detroit, 446 F.3d 614, 628–29 (6th Cir. 2006); Harris v. James, 127 

F.3d 993, 1008–09 (11th Cir. 1997).

729. Three Rivers Ctr. for Indep. Living v. Hous. Auth. of Pittsburgh, 382 F.3d 412, 424 

(3d Cir. 2004).

730. 532 U.S. 275 (2001).

731. Id. at 291.

732. 479 U.S. 418 (1987).

Chapter 7: Color of State Law and State Action, p. 81

733. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978). See supra Chapter 3, § I.

734. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); 

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999) (§ 1983 is not implicated by 

“merely private conduct, no matter how discriminatory or wrongful”); Jackson v. Metro. 

Edison Co., 419 U.S. 345, 349 (1974).

735. See District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973) (“actions of the 

Federal Government and its officers are at least facially exempt from [§ 1983’s] proscriptions”); McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) (“a section 1983 claim ordinarily will not lie against a federal actor”). In limited circumstances, a claim for damages 

against a federal official may be based on the Bivens doctrine. See supra Chapter 2.

736. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996).

737. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). However, color of state 

law would not constitute state action if color of state law were interpreted to mean merely 

acting “with the knowledge of and pursuant to [a] statute.” Id. at 935 n.18 (quoting Adickes 

v. S.H. Kress & Co., 398 U.S. 144, 162 n.23 (1970)).

738. West v. Atkins, 487 U.S. 42, 49–50 (1988); Lugar, 457 U.S. at 935.

739. See, e.g., Hotel & Rest. Employees Union, Local 100 v. City of N.Y. Dep’t of Parks 

& Recreation, 311 F.3d 534, 544 (2d Cir. 2002) (because court found no constitutional violation, it assumed, without deciding, private party engaged in state action); Mitchell v. City 

of New Haven, 854 F. Supp. 2d 238, 248 (D. Conn. 2012).

740. See, e.g., Walter v. Horseshoe Entm’t, 483 F. App’x 884, 886 (5th Cir. 2012) (because 

plaintiffs’ claims were barred by doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), court 

didn’t have to reach state action issue).

741. 454 U.S. 312 (1981).
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250

742. See West v. Atkins, 487 U.S. 42, 50 (1988) (discussing Polk Cnty.).

743. See Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 612 (6th Cir. 

2007), cert. denied, 555 U.S. 813 (2008). See also Vermont v. Brillon, 556 U.S. 81, 91 & n.7 

(2009) (discussing Polk County). Further, a public defender may be sued under § 1983 if she 

conspired with a state actor, even if the state actor is immune from § 1983 liability. Tower v. 

Glover, 467 U.S. 914, 919–20 (1984).

744. 487 U.S. 42 (1988).

745. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 55–58 (1999) (discussing West).

746. Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313 U.S. 

299, 325–26 (1946)).

747. Compare, e.g., Wragg v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (village 

fire chief who sexually molested sixteen-year-old participant in fire cadet program “was 

a governmental actor, not a private actor, as he indisputably committed the abusive acts 

against Wragg in the line of his duty as fire chief”), with Roe v. City of Waterbury, 542 F.3d 

31, 38 (7th Cir. 2008) (mayor’s sexual abuse of young children not conduct of official policy maker; “Decisions to sexually abuse young children are not ‘made for practical or legal 

reasons’ and are not in any way related to the City’s interests.”), cert. denied, 130 S. Ct. 95 

(2009)).

748. See, e.g., Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995); Pitchell 

v. Callahan, 13 F.3d 545, 548 (2d Cir. 1994); United States v. Tarpley, 945 F.2d 806, 809 (5th 

Cir. 1991), cert. denied, 504 U.S. 917 (1992); Bonsignore v. City of N.Y., 683 F.2d 635, 638–39 

(2d Cir. 1982); Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980); Stengel v. Belcher, 522 F.2d 

438, 440–41 (6th Cir. 1975), cert. dismissed, 429 U.S. 118 (1976).

749. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) 

(citations, quotation marks, and brackets omitted).

750. See Georgia v. McCollum, 505 U.S. 42 (1992) (criminal defense attorney’s exercise 

of race-based preemptory challenge); Edmonson v. Leesville Concrete Co., 500 U.S. 614 

(1991) (private civil litigants’ exercise of race-based preemptory challenge); West v. Atkins, 

487 U.S. 42 (1988) (private physician’s provision of medical care to inmates). See also Brentwood Acad., 531 U.S. 288 (2001).

751. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378 (1995) (quoting Edmonson, 

500 U.S. at 632 (O’Connor, J., dissenting)).

752. 365 U.S. 715 (1961).

753. See Moose Lodge v. Irvis, 407 U.S. 163, 175 (1972) (describing Burton).

754. Rendell-Baker v. Kohn, 457 U.S. 830, 831 (1982); Blum v. Yaretsky, 457 U.S. 991, 

1011 (1982).

755. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999). See also Crissman v. 

Dover Downs, 289 F.3d 231, 242 (3d Cir.), cert. denied, 537 U.S. 886 (2002) (Burton “was 

crafted for the unique set of facts presented”).

756. Flagg Bros. v. Brooks, 436 U.S. 149, 157–58 (1978); Jackson v. Metro. Edison Co., 

419 U.S. 345, 352 (1974).

757. Terry v. Adams, 345 U.S. 461, 469 (1953).

758. See discussion in Jackson, 419 U.S. at 353.

759. 487 U.S. 42 (1988).
Notes

251

760. See Am. Mfrs., 526 U.S. at 55–58 (discussing West). See also Fabrikant v. French, 

691 F.3d 193 (2d Cir. 2012) (relying partly on West, holding county SPCA’s sterilization of

pets was state action under “public function test” although entitled to qualified immunity 

because due process rights asserted weren’t clearly established).

761. Am. Mfrs., 526 U.S. at 55.

762. Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).

763. Blum v. Yaretsky, 457 U.S. 991, 993 (1982).

764. S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 544 (1987). See also

NCAA v. Tarkanian, 488 U.S. 179, 197 n.18 (1988).

765. Flagg Bros. v. Brooks, 436 U.S. 149, 159–60 (1978).

766. Hudgens v. NLRB, 424 U.S. 507, 519 (1976).

767. Jackson v. Metro. Edison Co., 419 U.S. 345, 352–53 (1974).

768. Blum, 457 U.S. at 1004.

769. Flagg Bros., 436 U.S. at 164; Jackson, 419 U.S. at 354.

770. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999).

771. See, e.g., Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892 (9th Cir. 2008) (mere 

fact private business employees summoned police did not render private employees state 

actors); Ginsberg v. Healey Car & Truck Leasing, 189 F.3d 268, 271–72 (2d Cir. 1999).

772. NCAA v. Tarkanian, 488 U.S. 179, 193–94 (1988). See also Gibson v. Regions Fin. 

Corp., 557 F.3d 842, 846 (8th Cir. 2009) (“. . . the mere furnishing of information to a law 

enforcement officer, even if the information is false, does not constitute joint activity with 

state officials”).

773. Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982); Blum, 457 U.S. at 1008; Jackson, 

419 U.S. at 350.

774. Rendell-Baker, 457 U.S. at 840 (no state action even though educational institution 

received almost all of its funding from state). See also Jackson, 419 U.S. at 351–52 (state 

grant of monopoly power).

775. See Rendell-Baker, 457 U.S. at 840–41 (school); Blum, 457 U.S. at 1008 (nursing 

home); Jackson, 419 U.S. at 350–54 (utility company).

776. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982); Dennis v. Sparks, 449 

U.S. 24, 27–28 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).

777. 449 U.S. 24 (1980).

778. A court’s issuance of a judgment is clearly state action. Shelley v. Kraemer, 334 U.S. 

1, 14–20 (1948). However, “merely resorting to the courts and being on the winning side 

of a lawsuit does not make a party a co-conspirator or a joint actor with the judge.” Sparks, 

449 U.S. at 28.

779. 488 U.S. 179 (1988).

780. Flagg Bros. v. Brooks, 436 U.S. 149, 164–66 (1978).

781. Lugar, 457 U.S. at 939–42.

782. 457 U.S. 922 (1982).

783. Id. at 937. The Court in Lugar explained that in this context the alleged 

“deprivation must be caused by the exercise of some right or privilege created by the 

State or by a rule of conduct imposed by the state or by a person for whom the state 

is responsible.” Id. A private party who misused or abused the state process does not 
Section 1983 Litigation

252

engage in state action. Id. at 941. In a footnote, the Court stated that its analysis was 

limited to prejudgment seizures of property. Id. at 939 n.21. The lower federal courts 

have generally been reluctant “to extend the relatively low bar of Lugar’s so-called 

‘joint action’ test outside the context of challenged prejudgment attachment or garnishment proceedings.” Revis v. Meldrum, 489 F.3d 273, 289 (6th Cir. 2007).

Repossession Cases: The joint action issue arises in cases involving a private party’s repossession of property in which a law enforcement officer plays some role. See, e.g., Hensley v. 

Gassman, 693 F.3d 681, 688–92 (6th Cir. 2012); Cochran v. Gilliam, 656 F.3d 300, 308 (6th 

Cir. 2011). The Eighth Circuit stated that “there is no state action if the officer merely keeps 

the peace, but there is state action if the officer affirmatively intervenes to aid the repossessor 

enough that the repossession would not have occurred without the officer’s help.” Moore 

v. Carpenter, 404 F.3d 1043, 1046 (8th Cir. 2005). For an insightful analysis of the issue, see 

Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999) (case law doesn’t provide “bright line” 

but “spectrum” of police involvement in repossession), cert. denied, 530 U.S. 1262 (2000).

Shoplifting Cases: In shoplifting cases, the prevailing view is the store’s detention of a 

suspected shoplifter is state action only if the store and police have a “prearranged plan” 

pursuant to which the police agree to arrest anyone identified by the store as a shoplifter. See, 

e.g., Boykin v. Van Buren Twp., 479 F.3d 444, 452 (6th Cir. 2007). See also authorities cited in 

1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 5.16[A] (4th ed. 2014).

784. 531 U.S. 288 (2001).

785. See Brentwood Academy, 531 U.S. at 314 (Thomas, J., dissenting) (“majority never 

defines ‘entwinement’ . . .”). 

786. See, e.g., Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143 (9th Cir. 2011); Hughes v. 

Region VII Area Agency on Aging, 542 F.3d 169 (6th Cir. 2008). For other decisions, see

Schwartz, supra note 783, § 5.17[B].

Chapter 8: Section 1983 Defendants, p. 87 

787. 491 U.S. 58 (1989).

788. Id. at 71 n.10.

789. 502 U.S. 21 (1991).

790. Will, 491 U.S. at 66–68. See also infra Chapter 14.

791. Id. at 67 (footnote omitted).

792. Id. at 71 n.10. See infra Chapter 14.

793. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997). Cf. Settles v. U.S. 

Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005) (“by failing to raise . . . in the district 

court . . . that it is not a ‘person’ under § 1983, the Commission” waived issue).

794. 529 U.S. 765 (2000).

795. Id. at 779.

796. Id. 

797. Id. 

798. 226 F.3d 815 (7th Cir. 2000).

799. Id. at 818 (citations omitted). 

800. See, e.g., Fontana v. Alpine Cnty., 750 F. Supp. 2d 1148, 1151 (E.D. Cal. 2010). 

(“States and state officials acting in their official capacities are immune from § 1983 liability 

because they are not considered ‘persons’ under the statute.”) (citing Will, 491 U.S. at 71). 
Notes

253

801. See, e.g., Harrison v. Michigan, 722 F.3d 768, 771 (6th Cir. 2013); GeorgiaCarry.

Org, Inc. v. Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012), cert. denied, 133 S. Ct. 856 (2013); 

Colon-Rivera v. Asociacion de Suscripcion, 451 F. App’x 5, 8 (1st Cir. 2011); McMillan v. N.Y. 

State Bd. of Elections, 449 F. App’x 79, 80 (2d Cir. 2011); Grover-Tsimi v. Minnesota, 449 F. 

App’x 529, 530 (8th Cir. 2011); Atkin v. Johnson, 432 F. App’x 47, 48 (3d Cir. 2011); Thomas 

v. Tex. Dep’t of Family & Protective Servs., 427 F. App’x 309, 312–13 (5th Cir. 2011); Brait 

Builders Corp. v. Commonwealth of Mass., Div. of Capital Asset Mgmt., 644 F.3d 5, 10–12 

(1st Cir. 2011); Baker v. James T. Vaughn Corr. Ctr., 425 F. App’x 83, 84 (3d Cir. 2011); Keisling v. Renn, 425 F. App’x 106, 109 (3d Cir. 2011); Donnelly v. TRL, Inc., 420 F. App’x 126, 129 

(3d Cir. 2010); Talbert v. Judiciary of N.J., 420 F. App’x 140, 141 (3d Cir. 2011); Fournerat v. 

Wis. Law Review, 420 F. App’x 816, 830 (10th Cir. 2011); Harris v. McSwain, 417 F. App’x 594, 

595 (8th Cir. 2011); Ross v. Tex. Educ. Agency, 409 F. App’x 765, 768–69 (5th Cir. 2011); 281 

Care Comm. v. Arneson, 638 F.3d 621, 631–33 (8th Cir. 2011); Nails v. Penn. Dep’t of Transp., 

414 F. App’x 452, 455 (3d Cir. 2011); Lee Testing & Eng’g Inc. v. Ohio Dep’t of Transp., 855 F. 

Supp. 2d 722, 725–27 (S.D. Ohio 2012); Canman v. Bonilla, 778 F. Supp. 2d 179, 184 (D.P.R. 

2011); Replay, Inc. v. Sec’y of Treasury of P.R., 778 F. Supp. 2d 207, 213–14 (D.P.R. 2011); Smiley v. Ala. Dep’t of Transp., 778 F. Supp. 2d 1283, 1298 (M.D. Ala. 2011); Draper v. Darby Twp. 

Police Dep’t, 777 F. Supp. 2d 850, 853–54 (E.D. Pa. 2011); Holland v. Bramble, 775 F. Supp. 2d 

748, 750 (D. Del. 2011); Fennell v. Rodgers, 762 F. Supp. 2d 727, 731–32 (D. Del. 2011); Fishman v. Daines, 743 F. Supp. 2d 127, 136–39 (E.D.N.Y. 2010); Reynolds v. Giuliani, 118 F. Supp. 

2d 352, 381–82 (S.D.N.Y. 2000); Cramer v. Chiles, 33 F. Supp. 2d 1342, 1350 (S.D. Fla. 1999).

802. 436 U.S. 658 (1978).

803. Id. at 690. 

District of Columbia: “The District of Columbia is a municipality for the purpose of 

§ 1983.” People for Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 425 (D.C. Cir. 

2005). 

804. 491 U.S. 58 (1989).

805. Id. at 67 n.7. See infra Chapter 10.

806. See, e.g., Anemone v. Metro. Transp. Auth., 410 F. Supp. 2d 255, 264 n.2 (S.D.N.Y. 

2006); Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991, 994 n.1 (N.D. Ill. 2006); Robinson v. District of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005).

807. See infra Chapter 14.

808. 520 U.S. 781 (1997).

809. Id. at 786.

810. Id. at 795.

811. Id. at 785–86.

812. Id. See, e.g., Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013) (California 

district attorney acts as local policy maker in establishing administrative policies), cert. denied, 

134 S. Ct. 906 (2014).

813. See, e.g., Best v. City of Portland, 554 F.3d 698 n.* (7th Cir. 2009) (police department not suable entity under § 1983); Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) 

(“[S]heriffs departments and police departments are not usually considered legal entities 

subject to suit.”).
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Chapter 9: Causation, p. 91

814. Martinez v. California, 444 U.S. 277, 284–85 (1980).

815. Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009); Cyrus v. Town of Mukwonago, 624 F.3d 856, 864 (7th Cir. 2010); Murray v. Earle, 405 F.3d 278, 290 (5th Cir. 

2005); McKinley v. City of Mansfield, 404 F.3d 418, 438 (6th Cir. 2005). See also Whitlock v. 

Brueggemann, 682 F.3d 567 (7th Cir. 2012). On § 1983 claims, the court stated, “Causation 

is a standard element of tort liability, and includes two requirements: (1) the act must be the 

‘cause-in-fact’ of the injury, i.e., ‘the injury would not have occurred absent the conduct”; 

and (2) the act must be the ‘proximate cause,’ ... i.e., ‘the injury is of a type that a reasonable 

person would see as a likely result of his or her conduct.’” Id. at 582 (citation omitted). See 

also Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), cert. denied, 134 S. Ct. 98 (2013).

816. Monroe v. Pape, 365 U.S. 167, 187 (1961). Accord Malley v. Briggs, 475 U.S. 335, 

344 n.7 (1986).

817. Warner v. Orange Cnty. Dep’t of Prob., 115 F.3d 1068, 1071 (2d Cir. 1996) (quoting 

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989)). “Where multiple ‘forces are actively operating,’ . . . plaintiffs may demonstrate that each defendant is a concurrent 

cause by showing that his or her conduct was a ‘substantial factor in bringing [the injury] 

about.’ In a case of concurrent causation, the burden of proof shifts to the defendants in 

that ‘a tortfeasor who cannot prove the extent to which the harm resulted from other concurrent causes is liable for the whole harm’ because multiple tortfeasors are jointly and severally liable.” Lippoldt v. Cole, 468 F.3d 1204, 1219 (10th Cir. 2006) (quoting Northington 

v. Marin, 102 F.3d 1564, 1568–69 (10th Cir. 1996)).

818. Martinez v. Carson, 697 F.3d 1252, 1255 (10th Cir. 2012).

819. See, e.g., Martinez, 444 U.S. at 284–85; Wray v. City of N.Y., 490 F.3d 189, 193 (2d 

Cir. 2007); Murray, 405 F.3d at 291; Townes v. City of N.Y., 176 F.3d 138, 146–47 (2d Cir.), 

cert. denied, 528 U.S. 964 (1999). See also Chalmers, 703 F.3d at 647.

820. Zahrey v. Coffey, 221 F.3d 342, 351 (2d Cir. 2000).

821. See, e.g., Young v. City of Providence, 404 F.3d 4, 23 (1st Cir. 2005) (questions of 

causation “are generally best left to the jury”) (citing Wortley v. Camplin, 333 F.3d 284, 295 

(1st Cir. 2003)); Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir. 2004). See also Schneider 

v. City of Grand Junction Police Dep’t, 717 F.3d 760, 778–79 (10th Cir. 2013) (although 

causation generally question of fact for jury, whether plaintiff presented sufficient evidence 

of causation to defeat summary judgment is legal question).

822. 131 S. Ct. 447 (2010).

823. Id. at 452.

824. Id. On the issues of municipal liability and causation, see infra Chapter 11, § I.D.

825. 131 S. Ct. 1186 (2011).

826. Id. at 1194. The Court adopted the so-called “cat’s paw” theory, named after the 

fable in which “a monkey induces a cat by flattery to extract roasting chestnuts from the fire. 

After the cat has done so, burning its paws in the process, the monkey makes off with the 

chestnuts and leaves the cat with nothing.” Id. at 1190 n.1.

827. Id. at 1191, 1193.

828. Id. at 1192.

829. Id. at 1192–93.
Notes

255

830. Id. at 1193. The decision in Staub was limited to discriminatory acts by supervisors, 

leaving open “whether the employer would be liable if a co-worker, rather than a supervisor, 

committed an employment decision.” Id. at 1194. The Supreme Court remanded to the Seventh Circuit to determine whether variance between the jury instructions and the Court’s 

decision necessitated a new trial, or was harmless error. Id.

831. See Smith v. Bray, 681 F.3d 888, 898–99 (7th Cir. 2012) (dicta) (proctor’s cat’s paw 

theory applies in § 1983 actions).

832. 707 F.3d 28 (1st Cir. 2013).

833. 373 U.S. 83 (1963).

834. Drumgold, 707 F.3d at 54 (citation omitted).

835. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 402–04 (1997); City of Canton v. 

Harris, 489 U.S. 378, 385–86 (1989).

836. Bd. of Cnty. Comm’rs, 520 U.S. at 402–04; City of Canton, 489 U.S. at 385–86.

837. The Court has stressed that for municipal liability claims based on inadequate 

training or deficient hiring, the fault and causation standards are stringent. See infra Chapter 11. Some courts, however, have equated phrases like “moving force” with proximate 

cause. See infra note 872.

Chapter 10: Capacity of Claim: Individual Versus Official Capacity, p. 94

838. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Brandon v. Holt, 469 U.S. 464, 

471–72 (1985); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978); Abusaid v. 

Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1302 n.3 (11th Cir. 2005).

839. 473 U.S. 159 (1985).

840. Id. at 165–66 (quoting Monell, 436 U.S. at 690 n.55 (1978)). See, e.g., Nivens v. 

Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006) (claim against North Carolina district attorney 

in official capacity considered claim against state for purpose of Eleventh Amendment).

841. See, e.g., Cotton v. District of Columbia, 421 F. Supp. 2d 83, 86 (D.D.C. 2006); 

Baines v. Masiello, 288 F. Supp. 2d 376, 384 (W.D.N.Y. 2003); McCachren v. Blacklick Valley 

Sch. Dist., 217 F. Supp. 2d 594, 599 (W.D. Pa. 2002).

842. Hafer v. Melo, 502 U.S. 21, 25 (1991).

843. The fact that a governmental entity agreed to indemnify an official for monetary 

liability in her official capacity does not convert the personal-capacity claim into an official-capacity claim. See infra Chapter 15.

844. 502 U.S. 21 (1991).

845. Id. (quoting Kentucky v. Graham, 473 U.S. 159 (1985)).

846. See infra Chapters 15 (absolute immunities) and 16 (qualified immunity).

847. Askew v. Sheriff of Cooks Cnty., 568 F.3d 632, 637 (7th Cir. 2009) (“For the present, 

the County does not become an ‘indispensable’ party just because it may need to indemnify 

the Sheriff in the future, any more than an insurance company must be included as a defendant in a suit against its insured.”). 

848. See, e.g., Moore v. City of Harriman, 272 F.3d 769, 772–73 (6th Cir. 2001); Biggs 

v. Meadows, 66 F.3d 56, 59–60 (4th Cir. 1995). Cf. Nix v. Norman, 879 F.2d 429, 431 (8th 

Cir. 1989).
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Chapter 11: Municipal Liability, p. 96

849. 436 U.S. 658 (1978).

850. State law cannot authorize respondeat superior under § 1983. Coon v. Town of 

Springfield, 404 F.3d 683, 687 (2d Cir. 2005) (“Just as states cannot extinguish municipal 

liability under § 1983 via state law, they cannot enlarge it either.”).

Private-Party State Actors: The rule against respondeat superior extends to private-party state actors. See, e.g., Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012); Rice 

v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012); Craig v. Floyd Cnty., 643 F.3d 1306, 

1310 (11th Cir. 2011); Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408–09 (2d Cir. 

1990); Mejia v. City of N.Y., 228 F. Supp. 2d 234, 243 (E.D.N.Y. 2002).

851. A suit against a municipal official in her official capacity is considered a suit against 

the municipality itself. Brandon v. Holt, 469 U.S. 464, 471–72 (1985). Accord Kentucky v. 

Graham, 473 U.S. 159, 166 (1985). See supra Chapter 10.

852. Monell, 436 U.S. at 694. The municipal “policy or practice” requisite is often very 

difficult to satisfy. See, e.g., Wimberly v. City of Clovis, 375 F. Supp. 2d 1120, 1127 (D.N.M. 

2004).

Waiver of Monell: The majority view in the circuits is that a municipality can waive 

Monell’s “policy and practice” requirements. Kinnison v. City of San Antonio, 480 Fed. 

App’x 271, 275–76 (5th Cir. 2012) (citing Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 

491–99 (6th Cir. 2008); Kelly v. City of Oakland, 198 F.3d 779, 785 (9th Cir. 1999); Morro 

v. City of Birmingham, 117 F.3d 508, 514–16 (11th Cir. 1997)). Kinnison cited a Seventh 

Circuit case reaching the opposite result, reasoning that Monell doesn’t create a defense but 

is an element of plaintiff’s claim. Smith v. Chi. Sch. Reform Bd. of Trustees, 165 F.3d 1142, 

1149 (7th Cir. 1999). Kinnison also cited more recent Seventh Circuit decisions allowing 

municipalities to waive certain aspects of Monell. See, e.g., Evans v. City of Chi., 513 F.3d 

735, 741 (7th Cir. 2008); Lopez v. City of Chi., 464 F.3d 711, 717 n.1 (7th Cir. 2006).

853. 131 S. Ct. 447 (2010).

854. Id. at 452.

855. Id. (quoting Monell, 436 U.S. at 690).

856. Humphries, 131 S. Ct. at 453. The plaintiffs in Humphries argued that Monell was 

based on the concern that municipalities not be required to pay large damage awards based 

on respondeat superior. The Court, however, found that Monell’s “rejection of respondeat 

superior liability primarily rested not on the municipality’s economic needs, but on the fact 

that liability in such a case does not arise out of the municipality’s own wrongful conduct.” 

Id. The plaintiffs also argued that Monell is “redundant” when prospective relief is sought 

because “a court cannot grant prospective relief against a municipality unless the municipality’s own conduct caused the violation.” Id. Even assuming that this is accurate, it provided no basis for lifting the Monell “policy or practice” requisite. “To argue that a requirement 

is necessarily satisfied . . . is not to argue that its satisfaction is unnecessary.” Id. Finally, 

the plaintiffs made “the mirror-image argument that applying Monell to prospective relief 

claims will leave some set of ongoing constitutional violations beyond redress.” Id. However, despite the fact that four circuits had applied Monell’s “policy or practice” requirement 

to claims for prospective relief, the plaintiffs failed to present “any actual or hypothetical 

example that provides serious cause for concern.” Id.
Notes

257

857. 445 U.S. 622 (1980).

858. Id. at 638.

859. 507 U.S. 163 (1993).

860. Id. at 166. See also Burge v. Parish of St. Tammany, 187 F.3d 452, 466–67 (5th Cir. 

1999) (absolute prosecutorial immunity not available in official capacity suit); Goldberg v. 

Town of Rocky Hill, 973 F.2d 70, 72 (2d Cir. 1992) (municipality may not assert legislative 

immunity). Further, state law immunities may not be asserted by municipalities sued under 

§ 1983. Howlett v. Rose, 496 U.S. 356, 375–76 (1990) (state court § 1983 action). See also

Davis v. United States, 131 S. Ct. 2419, 2433 n.9 (2011) (dictum); Alden v. Maine, 527 U.S. 

706, 740 (1994) (reaffirming Howlett).

861. Monell, 436 U.S. at 690.

862. 453 U.S. 247 (1981).

863. See infra Chapter 21.

864. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. 

Kress & Co., 398 U.S. 144, 167–68 (1970)).

865. Praprotnik, 485 U.S. at 123. See also Pembaur v. City of Cincinnati, 475 U.S. 469, 

481–83 (1986).

866. See City of Canton v. Harris, 489 U.S. 378, 380 (1989). See also Connick v. Thompson, 131 S. Ct. 1350 (2011) (rejecting inadequate training claim because plaintiff failed to 

demonstrate pattern of constitutional violations). 

867. See, e.g., Vann v. City of N.Y., 72 F.3d 1040, 1049–51 (2d Cir. 1995); Bordanaro v. 

McLeod, 871 F.2d 1151, 1158–63 (1st Cir.), cert. denied, 493 U.S. 820 (1989). See also 1A 

Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 7.18 (4th ed. 2014).

868. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 410–11 (1997).

869. See, e.g., Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (“[T]he decision not 

to take any action to alleviate the problem of detecting missed arraignments constitutes a 

policy for purposes of § 1983 municipal liability.”).

870. Bd. of Cnty. Comm’rs, 520 U.S. at 400; City of Canton, 489 U.S. at 388–89.

871. See, e.g., City of Canton, 489 U.S. at 385 (there must be “a direct causal link between 

a municipal policy or custom and the alleged constitutional deprivation”).

872. The Second Circuit equated these various concepts with proximate cause. See Cash 

v. Cnty. of Erie, 654 F.3d 324, 340 (2d Cir. 2011), cert. denied, 132 S. Ct. 1741 (2012) (citing 

cases).

873. 503 U.S. 115 (1992).

874. Id. at 120.

875. See also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252 (1981) (vote of 

city council to cancel license for rock concert was official decision for Monell purposes); 

Owen v. City of Independence, 445 U.S. 622, 633 (1980) (personnel decision made by city 

council constitutes official city policy). Fact Concerts and Owen demonstrate that decisions 

officially adopted by the government body itself need not have general or recurring application to constitute official “policy.”

876. See, e.g., Snyder v. King, 745 F.3d 242 (7th Cir. 2014); Surplus Store & Exchange, 

Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991). But see McKusick v. City of Melbourne, 

96 F.3d 478, 484 (11th Cir. 1996) (holding that development and implementation of ad-
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258

ministrative enforcement procedure, going beyond terms of state court injunction, leading 

to arrest of all anti-abortion protesters found within buffer zone, including persons not 

named in injunction, amounted to cognizable policy choice); Garner v. Memphis Police 

Dep’t, 8 F.3d 358, 364 (6th Cir. 1993) (rejecting defendants’ argument that they had no 

choice but to follow state “fleeing felon” policy, and holding their “decision to authorize use 

of deadly force to apprehend nondangerous fleeing burglary suspects was . . . a deliberate 

choice from among various alternatives”), cert. denied, 510 U.S. 1177 (1994). See also Vives 

v. City of N.Y., 524 F.3d 346 (2d Cir. 2008) (carefully analyzing the issue).

877. 403 F.3d 1208 (11th Cir. 2005).

878. Id. at 1222.

879. Am. Fed’n of Labor v. City of Miami, 637 F.3d 1178, 1187–88 (11th Cir. 2011).

880. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). See also Atkinson v. City of Mt. View, 709 F.3d 1201, 1215 

(8th Cir. 2013).

881. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989); Praprotnik, 485 U.S. 

at 123.

882. Pembaur, 475 U.S. at 481–82 (“The fact that a particular official—even a policymaking official—has discretion in the exercise of particular functions does not, without 

more, give rise to municipal liability based on an exercise of the discretion.”). See Killinger 

v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004) (“mere authority to implement pre-existing 

rules is not authority to set policy”).

883. See, e.g., Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988) (en banc) (“a very 

fine line exists between delegating final policymaking authority to an official . . . and entrusting discretionary authority to that official”). See also Mulholland v. Gov’t Cnty. of 

Berks, 706 F.3d 227, 244 (3d Cir. 2013) (agency’s litigation strategy not a policy or custom); Teesdale v. City of Chi., 690 F.3d 829, 836–37 (7th Cir. 2012) (city attorneys aren’t 

municipal policy makers, and their arguments don’t represent city policy); Vodak v. City 

of Chi., 639 F.3d 738, 748–49 (7th Cir. 2011) (Posner, J.) (when police superintendent is 

policy maker for control of demonstrations, it’s “helpful” to determine whether (1) official 

is constrained by policies of other officials or legislative bodies; (2) decision is subject to 

meaningful review; and (3) decision is within official’s delegated authority) (following Valentino v. Vill. of S. Chi. Heights, 575 F.3d 664, 676 (7th Cir. 2009)).

884. 475 U.S. 469 (1986).

885. Justice White wrote separately to make clear his position (concurred in by Justice 

O’Connor) that a policy-making official’s decision could not result in municipal liability 

if the decision were contrary to controlling federal, state, or local law. Pembaur, 475 U.S. at 

485–87 (White, J., concurring).

886. Id. at 472, 473.

887. Id. at 480 (citing Owen v. City of Independence, 445 U.S. 622 (1980) (“City Council passed resolution firing plaintiff without a pretermination hearing”), and City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (“City Council cancelled license permitting 

concert because of dispute over content of performance”)).

888. Pembaur, 475 U.S. at 480 (citing Monell, 436 U.S. at 694).

889. Id. at 481.
Notes

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890. Id. (Part II-B of Court’s opinion: Brennan, J., joined by White, Marshall & Blackmun, JJ.).

891. Id. at 483. Whether a municipal entity delegated final policy-making authority to 

a particular official may present an issue of fact. Bouman v. Block, 940 F.2d 1211, 1231 (9th 

Cir.), cert. denied, 502 U.S. 1005 (1991). See also Kujawski v. Bd. of Comm’rs, 183 F.3d 734, 

739 (7th Cir. 1999) (“[T]here remains a genuine issue of fact as to whether the Board had, as 

a matter of custom, delegated final policymaking authority to [the chief probation officer] 

with respect to [personnel decisions of] community corrections employees.”). But see Gros 

v. City of Grand Prairie, 181 F.3d 613, 617 (5th Cir. 1999) (“[T]he district court should have 

determined whether any such delegation had occurred as a matter of state law.”).

892. 485 U.S. 112 (1988).

893. Id. at 114. The Court in Praprotnik reversed a decision by the Eighth Circuit Court 

of Appeals, which had found the city liable for the transfer and layoff of a city architect in 

violation of his First Amendment rights. The Eighth Circuit attributed to the city adverse 

personnel decisions made by the plaintiff’s supervisors where such decisions were considered “final” because they were not subject to de novo review by higher-ranking officials. City 

of St. Louis v. Praprotnik, 798 F.2d 1168, 1173–75 (8th Cir. 1986).

894. Praprotnik, 485 U.S. at 124.

895. Id. In Praprotnik, the relevant law was found in the St. Louis City charter, which 

gave policy-making authority in matters of personnel to the mayor, alderman, and Civil 

Service Commission. Id. at 126. See also Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 

737 (1989) (discussed in text below); Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) 

(court examines state law and county code to find sheriff final policy maker as to operation 

of county jail).

896. See Killinger v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004) (“mere authority to implement pre-existing rules is not authority to set policy”); Quinn v. Monroe Cnty., 330 F.3d 

1320, 1326 (11th Cir. 2003) (municipal “decisionmaker” is one “who had the power to make 

official decisions and thus may be held individually liable,” while municipal “policy maker” 

is one “who takes actions that may cause [the governmental entity] to be held liable for a 

custom or policy”). Accord Kamensky v. Dean, 148 F. App’x 878, 879–80 (11th Cir. 2005).

897. Praprotnik, 485 U.S. at 127. See, e.g., Auriemma v. Rice, 957 F.2d 397, 400 (7th Cir. 

1992) (“Liability for unauthorized acts is personal; to hold the municipality liable ... the 

agent’s action must implement rather than frustrate the government’s policy.”).

898. Praprotnik, 485 U.S. at 128–30. See, e.g., Gillette v. Delmore, 979 F.2d 1342, 1348 

(9th Cir. 1992) (concluding mere inaction on part of policy maker “does not amount to 

‘ratification’ under Pembaur and Praprotnik”). In Christie v. Iopa, 176 F.3d 1231 (9th Cir.), 

cert. denied, 528 U.S. 928 (1999), the court recognized that ratification is ordinarily a question for the jury, and that ratification requires showing approval by a policy maker, not a 

mere refusal to overrule a subordinate’s action.

899. 491 U.S. 701 (1989).

900. Id. at 737.

901. Praprotnik, 485 U.S. at 130–31 (plurality opinion), 145 n.7 (Brennan, J., concurring).
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902. Worsham v. City of Pasadena, 881 F.2d 1336, 1344 (5th Cir. 1989) (Goldberg, J., 

concurring in part and dissenting in part).

903. 888 F.2d 783 (11th Cir. 1989).

904. Id. at 793. See also Gros v. City of Grand Prairie, 181 F.3d 613, 616 (5th Cir. 1999) 

(district court should have considered state and local law “as well as evidence of the City’s 

customs and usages in determining which City officials or bodies had final policy-making 

authority over the policies at issue in this case”).

905. 883 F.2d 842 (10th Cir. 1989).

906. Id. at 868.

907. Id. at 868 n.34.

908. See also Argyropoulos v. City of Alton, 539 F.3d 724, 740 (7th Cir. 2008) (plaintiff 

“needed to establish, by reference to applicable state or local law, that [Police Commissioner] Sullivan was the final policy maker with respect to police department employment 

decisions; she failed to provide evidence to this effect, and it is not the court’s task to do so 

on her behalf”) (citation omitted).

909. Fed. R. Evid. art. X (“Original Document Rule”).

910. Fed. R. Evid. 201(d).

911. 879 F.2d 706 (10th Cir. 1989), cert. denied, 502 U.S. 906 (1991).

912. Id. at 724 n.25.

913. Fed. R. Evid. 201(b). See also discussion of judicial notice in Getty Petroleum Marketing v. Capital Terminal Co., 391 F.3d 312 (1st Cir. 2004).

914. 520 U.S. 781 (1997).

915. Id. at 786–87.

916. See, e.g., D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014); Goldstein v. City 

of Long Beach, 715 F.3d 750 (9th Cir. 2013), cert. denied, 134 S. Ct. 906 (2014); Carter v. 

Philadelphia, 181 F.3d 339, 351 (3d Cir.), cert. denied, 528 U.S. 1005 (1999); Walker v. City 

of N.Y., 974 F.2d 293, 301 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993); Baez v. Hennessy, 

853 F.2d 73, 76–77 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989).

917. McMillian, 520 U.S. at 785–86.

918. Id. at 785.

919. Id. at 786.

920. Id. at 791–93.

921. In dissent, Justice Ginsburg wrote: 

A sheriff locally elected, paid, and equipped, who autonomously sets and implements law 

enforcement policies operative within the geographic confines of a county, is ordinarily just 

what he seems to be: a county official.... The Court does not appear to question that an Alabama sheriff may still be a county policymaker for some purposes, such as hiring the county’s 

chief jailor.... And, as the Court acknowledges, under its approach sheriffs may be policymakers for certain purposes in some States and not in others.... The Court’s opinion does not call 

into question the numerous Court of Appeals decisions, some of them decades old, ranking 

sheriffs as county, not state, policy makers.

Id. at 804–05 (Ginsburg, J., joined by Stevens, Souter & Breyer, JJ., dissenting).

922. 436 U.S. 658 (1978).

923. Id. at 691.
Notes

261

924. Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). See also Connick v. 

Thompson, 131 S. Ct. 1350, 1359 (2011) (referring to, inter alia, “practices so persistent and 

widespread as to practically have the force of law”) (citing authorities).

925. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989).

926. Wilson v. Cook Cnty., 742 F.3d 775, 780 (7th Cir. 2014) (citations omitted).

927. 971 F.2d 864 (2d Cir. 1992).

928. Id. at 869.

929. Id. at 871.

930. Judgment n.o.v. is now referred to as “judgment as a matter of law.” Fed. R. Civ. P. 50.

931. Sorlucco, 971 F.2d at 870.

932. Id. at 871.

933. Id. (“a § 1983 plaintiff may establish a municipality’s liability by demonstrating 

that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers”) (citing City of St. Louis v. Praprotnik, 485 

U.S. 112, 130 (1988)).

934. Id. at 870.

935. Id. at 872–73.

936. Id. at 872.

937. See also Watson v. Kansas City, 857 F.2d 690, 695–96 (10th Cir. 1988).

938. Sorlucco, 971 F.2d at 872.

939. 291 F.3d 325 (5th Cir. 2002), cert. denied, 537 U.S. 1110 (2003).

940. Id. at 329–31.

941. Id.

942. Id. at 331. See also Peterson v. City of Fort Worth, 588 F.3d 838, 851 (5th Cir. 2009), 

cert. denied, 131 S. Ct. 66 (2010) (§ 1983 excessive force case; holding showing of twenty-seven excessive force complaints in four-year period demonstrates city had practice of 

condoning police use of excessive force in making arrests; but plaintiff failed to show size 

of Fort Worth Police Department, overall number of arrests made by department during 

four-year period, or any comparison to other cities; given police department’s large size, 

twenty-seven incidents of excessive force did not reflect pattern representing official policy 

of condoning excessive force).

943. 979 F.2d 1342 (9th Cir.), cert. denied, 510 U.S. 932 (1992).

944. Gillette, 979 F.2d at 1348.

945. Id. at 1349.

946. 489 U.S. 378 (1989).

947. Id. at 387.

948. Id. at 388. Prior to Canton, the Court in City of Oklahoma City v. Tuttle, 471 U.S. 808 

(1985), held that a police officer’s use of excessive force, even if “unusually excessive,” did not 

warrant an inference that it was caused by deliberate indifference or grossly negligent training.

949. The Court observed:

[I]t may happen that in light of the duties assigned to specific officers or employees the need 

for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have 

been deliberately indifferent to the need. In that event, the failure to provide proper training 
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may fairly be said to represent a policy for which the city is responsible, and for which the city 

may be held liable if it actually causes injury.

Canton, 489 U.S. at 390 (footnotes omitted). See also Connick v. Thompson, 131 S. Ct. 

1350, 1360–61 (2011).

950. City of Canton, 489 U.S. at 391–92.

951. 511 U.S. 825 (1994).

952. Id. at 828–29. See supra Chapter 5, § VIII.

953. Collins v. City of Harker Heights, 503 U.S. 115, 124 (1992).

954. Canton, 489 U.S. at 390–91.

955. Id.

956. Id. at 392.

957. Patel v. Kent Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011).

958. Wereb v. Maui Cnty., 830 F. Supp. 2d 1026, 1034 (D. Haw. 2011).

959. Canton, 489 U.S. at 391.

960. Id. at 396 (O’Connor, J., concurring in part and dissenting in part). For example, 

all of the justices agreed that there is an obvious need to train police officers as to the constitutional limitations on the use of deadly force (see Tennessee v. Garner, 471 U.S. 1 (1985)), 

and that a failure to so train would be so certain to result in constitutional violations as to 

reflect the “deliberate indifference” to constitutional rights required for the imposition of 

municipal liability. Canton, 489 U.S. at 390 n.10.

961. Id. at 397 (O’Connor, J., concurring in part and dissenting in part). See also Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011).

962. See also Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 

1993) (setting out analysis that clearly illustrates the two different methods of establishing 

Canton deliberate indifference); Thelma D. v. Bd. of Educ., 934 F.2d 929, 934–45 (8th Cir. 

1991) (same).

963. See also Allen v. Muskogee, 119 F.3d 837, 843 (10th Cir. 1997) (finding need for different training obvious where “[c]ity trained its officers to leave cover and approach armed 

suicidal, emotionally disturbed persons and to try to disarm them, a practice contrary to 

proper police procedures and tactical principles”); Zuchel v. City & Cnty. of Denver, 997 

F.2d 730, 741 (10th Cir. 1993) (finding evidence “clearly sufficient to permit the jury reasonably to infer that Denver’s failure to implement . . . recommended [periodic live ‘shoot–

don’t shoot’ range training] constituted deliberate indifference to the constitutional rights 

of Denver citizens”); Davis v. Mason Cnty., 927 F.2d 1473, 1483 (9th Cir. 1991) (“Mason 

County’s failure to train its officers in the legal limits of the use of force constituted ‘deliberate indifference’ to the safety of its inhabitants”).

964. See, e.g., Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994) (where city requires 

police officers with police dogs that inflict injury in significant number of cases, failure to 

adopt policies governing use of dogs, and constitutional limits on use of dogs, constitutes 

deliberate indifference).

965. 131 S. Ct. 1350 (2011).

966. Brady v. Maryland, 373 U.S. 83 (1963).

967. Connick, 131 S. Ct. at 1356.

968. Id. at 1356 n.1.
Notes

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969. Id. at 1356.

970. Connick, 131 S. Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at 420).

971. Id. at 1359–60.

972. Id. at 1360.

973. Id. (emphasis added) (quoting Bryan Cnty., 520 U.S. at 409).

974. Id.

975. Id. at 1360 n.7.

976. Id. (quoting City of Canton, 489 U.S. at 395 (O’Connor, J., concurring in part, 

dissenting in part)).

977. Id. at 1361.

978. Id. at 1361–62.

979. Id. at 1363. 

980. Id.

981. Id. at 1382 (Ginsburg, J., dissenting).

982. See 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 7.17[B], 

[C] (4th ed. 2014).

983. 520 U.S. 397 (1997).

984. Id. at 412.

985. Id. at 415–16.

986. Id. at 410.

987. Id. at 400–02.

988. Id. at 405.

989. Id. at 405–07 (distinguishing Pembaur v. City of Cincinnati, 475 U.S. 469, 484 

(1986) (county prosecutor, acting as final decision maker for county, gave order that resulted in constitutional violation); City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 

252 (1981) (decision of city council to cancel license permitting concert directly violated 

constitutional rights); Owen v. City of Independence, 445 U.S. 622, 633 n.13 (1980) (city 

council discharged employee without due process)). In these types of cases, there are no 

real problems with respect to the issues of fault or causation. See also Bennett v. Pippin, 74 

F.3d 578, 586 n.5 (5th Cir. 1996) (holding county liable for sheriff’s rape of murder suspect, 

where sheriff was final policy maker in matters of law enforcement).

990. Brown, 520 U.S. at 409–11.

991. Id. at 412.

992. Id. at 410–13.

993. Id. at 421 (Souter, J., dissenting).

994. Id. at 430–31 (Breyer, J., dissenting). See also Vodak v. City of Chi., 639 F.3d 738, 

747 (7th Cir. 2011) (Posner, J.) (citing scholars, and concluding that Supreme Court decisional law rejecting respondeat superior for § 1983 municipal liability is based on “historical misreadings (which are not uncommon when judges play historian)”).

995. 507 U.S. 163 (1993).

996. Id. For post-Leatherman decisions involving pleading against local government 

entities, see, e.g., Atchinson v. District of Columbia, 73 F.3d 418, 423 (D.C. Cir. 1996) (“A 

complaint describing a single instance of official misconduct and alleging a failure to train 

may put a municipality on notice of the nature and basis of a plaintiff’s claim.”); Jordan v. 
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Jackson, 15 F.3d 333, 339 (4th Cir. 1994) (“We believe it is clear . . . that the Supreme Court’s 

rejection of the Fifth Circuit’s ‘heightened pleading standard’ in Leatherman constitutes a 

rejection of the specific requirement that a plaintiff plead multiple instances of similar constitutional violations to support an allegation of municipal policy or custom.”).

997. However, even after Leatherman, some lower federal courts rejected wholly conclusory allegations of municipal policy or practice. See, e.g., Spiller v. Texas City, 130 F.3d 162, 

167 (5th Cir. 1997). A federal district court found it unclear whether a “bold” or “naked” 

allegation of municipal policy or custom is sufficient to satisfy notice pleading. Luthy v. 

Proulx, 464 F. Supp. 2d 69, 75 (D. Mass. 2006).

998. 556 U.S. 662 (2009).

999. 550 U.S. 544 (2007).

1000. Although Twombly was an antitrust case, the Court in Iqbal found that it was 

based on an interpretation of Fed. R. Civ. P. 8 and not limited to antitrust cases. Iqbal is 

analyzed in detail supra Chapter 1.

1001. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

1002. Id.

1003. Twombly, 550 U.S. at 570.

1004. In addition, Twombly and Iqbal did not overrule Swierkiewicz v. Sorema, N.A., 534 

U.S. 506, 514 (2002). See AE v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

Chapter 12: Liability of Supervisors, p. 115

1005. 556 U.S. 662 (2009).

1006. Id. at 677. See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n.58 (1978). 

The liability of a supervisor “must be based on more than the right to control employees. 

Likewise, simple awareness of employees’ misconduct does not lead to supervisory liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citations and internal quotation 

marks omitted).

1007. See, e.g., Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999); Aponte Matos v. Toledo-Davila, 135 F.3d 182, 192 (1st Cir. 1998); Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).

1008. Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987) (“[W]hen supervisory liability 

is imposed, it is imposed against the supervisory official in his individual capacity for his 

own culpable action or inaction in the training, supervision, or control of his subordinates.”).

1009. See Walton v. Gomez (In re Estate of Booker), 745 F.3d 405, 436 (10th Cir. 2014) 

(no need for “special” qualified immunity analysis for supervisory official).

1010. See infra Chapter 11.

1011. Rizzo v. Goode, 423 U.S. 362, 371 (1976). Following is a breakdown of standards 

by circuit for supervisory liability pre-Iqbal:

• First Circuit: Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 25 (1st Cir. 2006) (absent participation in challenged conduct, supervisor can be liable only if subordinate committed constitutional violation and supervisor’s action or inaction was 

“affirmatively linked” to violation in that it constituted supervisory encouragement, 

condonation, acquiescence, or gross negligence amounting to deliberate indifference); Aponte Matos v. Toledo-Davila, 135 F.3d 182, 192 (1st Cir. 1998) (superviso-
Notes

265

ry encouragement, condonation, acquiescence, or deliberate indifference). See also

Wilson v. Town of Mendon, 294 F.3d 1, 12–13 (1st Cir. 2002); Camilo-Robles v. 

Hoyos, 151 F.3d 1, 12–13 (1st Cir. 1998), cert. denied, 525 U.S. 1105 (1999).

• Second Circuit: Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (direct participation in wrongdoing, failure to remedy wrong after being informed of it, creation of 

policy or custom, grossly negligent supervision, or deliberately indifferent failure to 

act on information about constitutional violations). See also Hernandez v. Keane, 

341 F.3d 137, 145 (2d Cir. 2003); Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).

• Third Circuit: Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (supervisor 

must have personally directed or have had knowledge of and acquiesced in unlawful 

conduct). See also Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995).

• Fourth Circuit: Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (actual or constructive knowledge of risk of constitutional injury and deliberate indifference to 

that risk and affirmative link between supervisor’s inaction and constitutional injury); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 513 U.S. 813, 814 

(1994) (plaintiff must establish “(1) that the supervisor had actual or constructive 

knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and 

unreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the 

supervisor’s response to that knowledge was so inadequate as to show ‘deliberate 

indifference to or tacit authorization of the alleged offensive practices;’ and (3) that 

there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered” (quoting Miller v. Bearn, 896 F.2d 848, 854 

(4th Cir. 1990))). See also Randall v. Prince George’s Cnty., 302 F.3d 188, 206 (4th 

Cir. 2002).

• Fifth Circuit: Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 254 (5th Cir. 2005) 

(deliberate indifference standard; adopting Farmer v. Brennan, 511 U.S. 825 (1994), 

definition of deliberate indifference); Roberts v. City of Shreveport, 397 F.3d 287, 

292 (5th Cir. 2005) (deliberately indifferent training or supervision causally linked 

to violation of plaintiff’s rights).

• Sixth Circuit: Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (“Plaintiff must also show that the supervisor somehow encouraged or condoned the actions of their inferiors. Plaintiff, however, presents evidence only that [the] supervisors . . . failed to review their subordinates’ work.” (citations omitted)); Doe v. City 

of Roseville, 296 F.3d 431, 440 (6th Cir. 2002) (“Supervisor liability [under § 1983] 

occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can 

be established when a history of widespread abuse puts the responsible supervisor 

on notice of the need to correct the alleged deprivation, and he [or she] fails to do 

so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather 

than isolated occurrences.”) (citing Braddy v. Fla. Dep’t of Labor & Employment 

Sec., 133 F.3d 797, 802 (11th Cir. 1998)); Shehee v. Luttrell, 199 F.3d 295, 300 (6th 

Cir. 1999) (supervisory liability cannot be based on mere failure to act; the supervi-
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266

sor must have “at least implicitly authorized, approved, or knowingly acquiesced in 

the unconstitutional conduct of the offending [subordinate] officers”) (citing Hays 

v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982)); Poe 

v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). See also Combs v. Wilkinson, 315 F.3d 

548, 558 (6th Cir. 2002).

• Seventh Circuit: Jones v. Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988) (conduct of 

subordinate must have occurred with supervisor’s knowledge, consent, or deliberate 

indifference). See also Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997).

• Eighth Circuit: Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (supervisor 

may be liable under § 1983 if (1) she had notice of subordinates’ unconstitutional 

actions; (2) she “[d]emonstrated deliberate indifference to or tacit authorization of 

the offensive acts”; and (3) her failure to act “proximately caused injury”).

• Ninth Circuit: Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (“Supervisors can be held liable for: 1) their own culpable action or inaction in the training, 

supervision, or control of subordinates; 2) their acquiescence in the constitutional 

deprivation of which a complaint is made; or 3) conduct that showed a reckless or 

callous indifference to the rights of others.”).

• Tenth Circuit: Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir. 1996) (“personal direction” or actual knowledge of wrongdoing and acquiescence) (following 

Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992), cert. denied, 509 

U.S. 923 (1993)).

• Eleventh Circuit: Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (supervisor 

(1) personally participated in unconstitutional conduct; (2) failed to correct widespread violations; (3) initiated custom or policy that was deliberately indifferent to 

constitutional rights; or (4) directed subordinates to act unconstitutionally or knew 

they would do so yet failed to stop them from doing so). See also Dalrymple v. Reno, 

334 F.3d 991, 995–96 (11th Cir. 2003).

• D.C. Circuit: Barham v. Ramsey, 434 F.3d 565, 578 (D.C. Cir. 2006) (supervisory liability requires showing “supervisor . . . [knew] about the conduct and facilitate[d] it, 

approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what he might see”); 

Int’l Action Center v. United States, 365 F.3d 20, 25–28 (D.C. Cir. 2004) (supervisors 

must have had “actual or constructive knowledge of past transgressions or” been 

“responsible for or aware of ‘clearly deficient’ training”); Haynesworth v. Miller, 820 

F.2d 1245, 1259–60 (D.C. Cir. 1987) (breach of duty to instruct subordinate to prevent constitutional harm).

1012. Compare Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) (“[A] single incident, or a series of isolated incidents, usually provides an insufficient basis upon which to 

assign supervisory liability. However, as the number of incidents grows and a pattern begins 

to emerge, a finding of tacit authorization or reckless disregard becomes more plausible.”), 

with Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 567 (1st Cir. 1989) (“An inquiry into 

whether there has been a pattern of past abuses or official condonation thereof is only required when a plaintiff has sued a municipality. Where . . . plaintiff has brought suit against 

the defendants as individuals . . . plaintiff need only establish that the defendants’ acts or 
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omissions were the product of reckless or callous indifference to his constitutional rights 

and that they, in fact, caused his constitutional deprivations.”).

1013. Iqbal, 556 U.S. at 666.

1014. Id. at 667.

1015. Id. at 668.

1016. Id. at 677 (referring to “a § 1983 suit or a Bivens action”).

1017. Id. at 668. 

1018. Id. at 680–81 (complaint references omitted).

1019. 550 U.S. 544 (2007).

1020. Iqbal, 556 U.S. at 683.

1021. Id. at 677 (citing Brief for Respondent 45–46).

1022. Id.

1023. Id. at 690–91 (quoting Brief for Petitioners, p. 50) (Souter, J., dissenting).

1024. Id. at 692 (Souter, J., dissenting) (“because of the [defendant’s] concession, we 

have received no briefing or argument on the proper scope of supervisory liability, much 

less the full-dress argument we normally require”).

1025. Id. at 677.

1026. Id. at 683.

1027. Id. at 693–94 (Souter, J., dissenting) (citations omitted). Justice Souter was “unsure what the general test for supervisory liability should be, and in the absence of briefing 

and argument [was] in no position to choose or devise one.”

1028. Lewis v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010). Selected post-Iqbal circuit 

decisions appear below.

• Fifth Circuit: Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (“Under 

§ 1983, . . . a government official can be held liable only for his own misconduct. See

. . . Iqbal, [556 U.S. at 677]. Beyond his own conduct, the extent of his liability as a 

supervisor is similar to that of a municipality that implements an unconstitutional 

policy.”).

• Seventh Circuit: T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (holding, under 

Iqbal, Equal Protection claim against supervisor requires showing that supervisor 

acted with requisite discriminatory intent; although pre-Iqbal the Seventh Circuit 

allowed plaintiff to recover based on supervisor’s deliberate indifference, “after Iqbal

a plaintiff must also show that the supervisor possessed the requisite discriminatory 

intent”; court also ruled that Iqbal does not foreclose due process claim against supervisor based on supervisor’s own misconduct).

• Eighth Circuit: L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, 673 F.3d 799, 810 (8th 

Cir. 2012) (under Iqbal, when “alleged constitutional violation requires proof of an 

impermissible motive, . . . complaint . . . must allege” supervisor acted with “impermissible purpose, not merely that he knew of a subordinate’s motive”); Whitson v. 

Stone Cnty. Jail, 602 F.3d 920, 928 (8th Cir. 2010) (ruling that under Iqbal, supervisory defendants may be held liable for attack on prisoner by fellow prisoner “only if 

they personally displayed deliberate indifference to the risk that [plaintiff] Watson 

would be assaulted during the transfer of prisoners”); Nelson v. Corr. Med. Servs., 

583 F.3d 522, 535 (8th Cir. 2009) (en banc) (director of State Department of Correc-
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tions could not be held liable for corrections officer’s shackling plaintiff-prisoner to 

hospital bed while she was giving birth, in final stages of labor; citing Iqbal, finding 

director could be held liable on theory of “supervisory liability” “only if he personally displayed deliberate indifference to the hazards and pain resulting from shackling 

an inmate such as Nelson during the final states of labor”; no evidence that director 

was deliberately indifferent). See also Ellis v. Houston, 742 F.3d 307, 320, 322 (8th Cir. 

2014).

• Ninth Circuit: Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (en banc)

(for supervisor to be liable for another actor’s deprivation of third-party’s constitutional rights, supervisor must have at least same level of intent as would be required if he directly violated third-party’s constitutional rights); Starr v. Baca, 652 

F.3d 1202, 1206–08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012) (interpreting 

Iqbal to mean that supervisor’s liability may vary depending on nature of plaintiff’s 

constitutional claim; reading Iqbal as holding that in discrimination case “alleging 

a supervisor’s mere awareness of the discriminatory effects of his or her actions or 

inaction does not state a claim of unconstitutional discrimination”; on the other 

hand, when as in this case, plaintiff-inmate asserts constitutional claim governed by 

deliberate-indifference standard, supervisor may be held liable for her own deliberate indifference, i.e., supervisor may be held liable based on her “knowledge of and 

acquiescence in unconstitutional conduct by others”). See also OSU Student Alliance 

v. Ray, 699 F.3d 1053, 1075 (9th Cir. 2012); Chavez v. United States, 683 F.3d 1102, 

1108–12 (9th Cir. 2012).

• Tenth Circuit: Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (holding, under Iqbal, plaintiff may establish § 1983 

liability of supervisory official by showing: (1) defendant (supervisor) promulgated, 

created, implemented, or possessed responsibility for continued operation of policy 

that (2) caused the complained of constitutional harm, and (3) acted with state of 

mind required to establish alleged constitutional deprivation). See also Walton v. 

Gomez (In re Estate of Booker), 745 F.3d 405, 435–36 (10th Cir. 2014); Schneider v. 

City of Grand Junction Police Dep’t, 717 F.3d 760, 767, 771 (10th Cir. 2013).

• D.C. Circuit: Navab-Safavi v. Glassman, 637 F.3d 311, 319 (D.C. Cir. 2011) (“in actions against public officials for violation of constitutional rights, ‘officials may not 

be held liable for the unconstitutional conduct of their subordinates under a theory 

of respondeat superior’”) (quoting Iqbal, 556 U.S. at 676).

Chapter 13: Relationship Between Individual and Municipal Liability, p. 120

1029. Fed. R. Civ. P. 42(b). See, e.g., Amato v. City of Saratoga Springs, 170 F.3d 311, 316 

(2d Cir. 1999).

1030. 475 U.S. 796 (1986).

1031. Id. at 796–99.

1032. See, e.g., Williams v. Borough of W. Chester, 891 F.2d 458, 467 (3d Cir. 1989); 

Dodd v. City of Norwich, 827 F.2d 1, 5 (2d Cir. 1987), cert. denied, 484 U.S. 1007 (1988).

1033. See Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 305 (7th Cir.), cert. denied, 

131 S. Ct. 643 (2010) (detainee denial of medical care case; holding jury verdict exonerating 
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individual jail medical technicians, but imposing liability against county, was not inconsistent; rejecting county’s argument that individual officer liability required to impose municipal liability; “The actual rule . . . is much narrower: a municipality can be held liable under 

Monell, even when its officers are not, unless such a finding would create an inconsistent

verdict.” This depends on “the nature of the constitutional violation, the theory of municipal liability, and the defenses set forth” (citing Speer v. City of Wynne, 276 F.3d 980, 986 (8th 

Cir. 2002)). Based on the district court’s jury instructions, “the jury could have found that 

[the medical technicians] were not deliberately indifferent to [the detainee’s] medical needs, 

but simply could not respond adequately because of the well-documented breakdowns in 

the County’s policies for retrieving medical request forms.”); Moyle v. Anderson, 571 F.3d 

814, 818 (8th Cir. 2009) (“There need not be a finding that a municipal employee is liable 

in his or her individual capacity before municipal liability can attach.”) (citations omitted). 

See also Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002); Speer v. City of Wynne, 276 F.3d 

980, 986 (8th Cir. 2002); Barrett v. Orange Cnty., 194 F.3d 341, 350 (2d Cir. 1999); Anderson 

v. Atlanta, 778 F.2d 678, 686 (11th Cir. 1985); Garcia v. Salt Lake Cnty., 768 F.2d 303, 310 

(10th Cir. 1985).

1034. See, e.g., Askins v. Doe No. 1, 727 F.3d 248, 252–54 (2d Cir. 2013); Int’l Ground 

Transp., Inc. v. Mayor of Ocean City, Md., 475 F.3d 214 (4th Cir. 2007) (determination that 

individual officer/defendants are protected from liability by qualified immunity does not 

preclude imposition of municipal liability); Prue v. City of Syracuse, 26 F.3d 14, 19 (2d Cir. 

1994); Doe v. Sullivan Cnty., 956 F.2d 545, 554 (6th Cir.) (“dismissal of a claim against an 

officer asserting qualified immunity in no way logically entails that the plaintiff suffered no 

constitutional deprivation, nor . . . that a municipality . . . may not be liable for that deprivation”), cert. denied, 506 U.S. 864 (1992). See also Lore v. City of Syracuse, 670 F.3d 127, 164 

(2d Cir. 2012) (recognizing that ruling defendant-officer is protected by qualified immunity 

does not preclude municipal liability). However, if the defendant officer was protected by 

qualified immunity because she did not violate the plaintiff’s federal rights, and there is no 

finding that any other officers violated plaintiff’s rights, the municipality would be entitled 

to judgment.

1035. Askins, 727 F.3d at 253 (recognizing § 1983 plaintiff may choose to sue only municipality; she need not name official as defendant). 

1036. Manzanares v. City of Albuquerque, 628 F.3d 1237 (10th Cir. 2010); Lippoldt v. 

Cole, 468 F.3d 1204 (10th Cir. 2006); George v. City of Long Beach, 973 F.2d 206 (9th Cir. 

1992). 

1037. Amato v. City of Saratoga Springs, 170 F.3d 311 (2d Cir. 1999).

1038. Id. at 317.

1039. 445 U.S. 622 (1980).

1040. Id. at 657.

Chapter 14: State Liability: The Eleventh Amendment, p. 123

1041. 491 U.S. 58 (1989).

1042. Id. at 71 n.10.

1043. 502 U.S. 21 (1991). 
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1044. Vt. Agency of Natural Res. v. United States, 529 U.S. 765, 771 (2000) (qui tam

action under False Claims Act); Power v. Summers, 226 F.3d 815, 818 (7th Cir. 2000) (applying Vermont Agency to § 1983 action). Cf. Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1104 

(D.C. Cir. 2005) (“by failing to raise ... in the district court that it is not a ‘person’ under 

§ 1983, the Commission” waived the issue). See infra Chapter 8.

1045. The Supreme Court has indicated that the Will “no person” defense is not waivable. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997).

1046. U.S. Const. amend. XI. The circuits are in conflict over whether a federal court 

must reach an Eleventh Amendment defense before addressing the merits. See authorities 

cited in Nair v. Oakland County Community Mental Health Authority, 443 F.3d 469, 474–77 

(6th Cir. 2006).

1047. Hans v. Louisiana, 134 U.S. 1, 10 (1890) (holding citizen could not sue state in 

federal court without that state’s consent). See Seminole Tribe v. Florida, 517 U.S. 44, 54 

(1996) (reaffirming Hans).

1048. Quern v. Jordan, 440 U.S. 332, 342 (1979).

1049. Edelman v. Jordan, 415 U.S. 651, 663 (1974) (stating that “when the action is in 

essence one for the recovery of money from the state, the state is the real, substantial party 

in interest and is entitled to invoke its [Eleventh Amendment] sovereign immunity from suit 

even though individual officials are nominal defendants”) (quoting Ford Motor Co. v. Dep’t 

of Treasury, 323 U.S. 459, 464 (1945)). Even if a third party agrees to indemnify the state, the 

Eleventh Amendment still protects the state from a federal court monetary judgment. Regents 

of the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997).

1050. 209 U.S. 123 (1908).

1051. Milliken v. Bradley, 433 U.S. 267, 289 (1977). See also Antrican v. Odom, 290 F.3d 

178, 185 (4th Cir. 2002) (observing that “simply because the implementation of such prospective relief would require the expenditure of substantial sums of [state] money does not 

remove a claim from the Ex Parte Young exception”).

1052. Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting 

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring)).

The Supreme Court held that a federal court suit brought by a state agency seeking 

prospective relief against state officials in their official capacities based upon ongoing violations of federal law is within the doctrine of Ex parte Young, and thus not barred by 

the Eleventh Amendment. Va. Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632 

(2011). The Court in Virginia Office ruled that the validity of a Young claim does not “turn 

on the identity of the plaintiff,” id. at 1639, and that a state’s sovereignty interests are not 

more greatly diminished in a suit brought by a state agency than in a suit brought by a 

private party. Id. at 1640.

1053. See Greenawalt v. Ind. Dep’t of Corr., 397 F.3d 587, 589 (7th Cir. 2005) (noting 

“section 1983 does not permit injunctive relief against state officials sued in their individual 

as distinct from their official capacity”).

1054. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978).

1055. See Green v. Mansour, 474 U.S. 64, 73 (1985).

1056. See Hutto v. Finney, 437 U.S. 678, 691 (1978).

1057. See Frew v. Hawkins, 540 U.S. 431, 440 (2004).
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1058. Hutto, 437 U.S. at 690.

1059. 465 U.S. 89 (1984).

1060. Id. at 99–100.

1061. Id. 

1062. Hafer v. Melo, 502 U.S. 21, 30–31 (1991).

1063. Id.

1064. See, e.g., Stoner v. Wis. Dep’t of Agric., Trade & Consumer Prot., 50 F.3d 481, 

482–83 (7th Cir. 1995).

1065. See Missouri v. Jenkins, 495 U.S. 33, 56 n.20 (1990); Monell v. Dep’t of Soc. Servs., 

436 U.S. 658, 690 n.54 (1978); Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 

280–81 (1977). See also N. Ins. Co. of N.Y. v. Chatham Cnty., 547 U.S. 189, 194 (2006) (sovereign immunity does not protect municipalities); People for Ethical Treatment of Animals 

v. Gittens, 396 F.3d 416, 425 (D.C. Cir. 2005) (“The District of Columbia is a municipality 

for the purpose of § 1983.”).

1066. See Mt. Healthy, 429 U.S. at 280. The courts of appeals have articulated a variety 

of formulas to determine whether an entity is an arm of the state or of local government. 

See, e.g., Ross v. Jefferson Cnty. Dep’t of Health, 695 F.3d 1183, 1187 (11th Cir. 2012) (court 

should consider (1) how state law defines entity; (2) degree of state control over entity; 

(3) where entity derives funds; (4) who is responsible for judgment against entity); Peirick 

v. Ind. Univ.-Purdue Univ. Indianapolis Athletic Dep’t, 510 F.3d 681, 695–96 (7th Cir. 2007) 

(court should evaluate extent of entity’s financial autonomy from state, which requires consideration of: (1) extent of entity’s state funding; (2) state’s oversight and control of entity’s 

fiscal affairs; (3) entity’s ability to raise funds; (4) whether entity is subject to state taxation; 

and (5) whether judgment against entity would result in increase in state appropriations 

to entity; court should also consider entity’s general legal status); Febres v. Camden Bd. of 

Educ., 445 F.3d 227, 229–30 (3d Cir. 2006) (court should give “equal consideration” to: “payment from the state treasury, status under state law, and autonomy”; in “close cases,” the 

“prime guide” should be protecting state from federal court judgments payable out of state 

treasury); Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc) (court should consider 

“(1) whether the state would be responsible for a judgment . . . ; (2) how state law defines the 

entity; (3) what degree of control the state maintains over the entity; and (4) the source of 

the entity’s funding”; whether state will be liable for judgment is most important inquiry). 

1067. See Ernst, 427 F.3d at 359 (“foremost factor . . . is the state treasury’s potential legal 

liability for the judgment, not whether the state treasury will pay for the judgment in that 

case”).

1068. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 237–39 (2d 

Cir. 2006).

1069. 429 U.S. 274 (1977).

1070. Id. at 280–81.

1071. 440 U.S. 391 (1979).

1072. Id. at 401. See also Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52 (1994) 

(holding injured railroad workers could assert federal statutory right under Federal Employers Liability Act to recover damages against Port Authority, and that concerns underlying Eleventh Amendment—“the States’ solvency and dignity”—were not touched).
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1073. Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909)). A state’s waiver of sovereign immunity from liability in 

state court is not waiver of Eleventh Amendment immunity in federal courts. Fla. Dep’t of 

Health v. Fla. Nursing Home Ass’n, 450 U.S. 147, 149–50 (1981) (per curiam). 

1074. Lapides v. Bd. of Regents, 535 U.S. 613 (2002).

1075. Id. at 619.

1076. 506 U.S. 139 (1993). 

1077. Id. at 144.

1078. Id. at 146. The law of the First Circuit, that the Commonwealth of Puerto Rico is 

treated as a state for purposes of the Eleventh Amendment, was not challenged in Metcalf & 

Eddy, and the Court expressed no view on the issue. Id. at 141 n.1.

Chapter 15: Personal-Capacity Claims: Absolute Immunities, p. 128

1079. Rehberg v. Paulk, 132 S. Ct. 1497, 1502 (2012).

1080. Id. at 1503 (Court has granted absolute immunity to legislators and judges for actions within legitimate scope of their authority, “prosecutors in their role as advocates, and 

the giving of testimony by witnesses at trial,” and “found no absolute immunity for the acts 

of the chief executive officer of a State, the senior and subordinate officers of a State’s National Guard, the president of a state university, school board members, the superintendent 

of a state hospital, police officers, prison officials and officers, and private co-conspirators 

of a judge”) (citations omitted).

1081. Id. at 1502 (quoting Malley v. Briggs, 475 U.S. 335, 342 (1986)).

1082. Id. at 1503. “[T]he Court has not suggested that § 1983 is simply a federalized 

amalgamation of pre-existing common-law claims.” Id. at 1504.

1083. Id. at 1503–05.

1084. Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting Forrester v. White, 484 U.S. 

219, 229 (1988)). See also Rehberg, 132 S. Ct. at 1503.

1085. See Forrester, 484 U.S. 219.

1086. 131 S. Ct. 2074 (2011) (Bivens action).

1087. Id. at 2085.

1088. Mireles v. Waco, 502 U.S. 9, 11–12 (1991); Stump v. Sparkman, 435 U.S. 349, 

356–57 (1978). See also Pierson v. Ray, 386 U.S. 547, 553–54 (1967); Bradley v. Fisher, 80 

U.S. 335, 347 (1872).

1089. Stump, 435 U.S. at 356–57 (quoting Bradley, 80 U.S. at 351).

1090. Id. at 356. See, e.g., Gross v. Bell, 585 F.3d 72, 84–85 (2d Cir. 2009) (judge’s erroneous assumption that he had personal jurisdiction did not deprive him of absolute immunity because he did not act in clear absence of all jurisdiction).

1091. Mireles, 502 U.S. at 12 (judge who ordered bailiff to use excessive force to bring 

attorney to courtroom performed judicial act); Stump, 435 U.S. at 362 (acts are judicial 

even though informal and irregular, e.g., no docket number, no filing with clerk’s office, 

and no notice to minor who was subject to sterilization order). See also Sibley v. Lando, 

437 F.3d 1067, 1070 (11th Cir. 2005) (“Whether a judge’s actions were made while acting in 

his judicial capacity depends on whether: (1) the act complained of constituted a normal 

judicial function; (2) the events occurred in the judge’s chambers or in open court; (3) the 
Notes

273

controversy involved a case pending before the judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity.”); Lowe v. Lestinger, 772 F.2d 

308, 312 (7th Cir. 1985) (to determine whether act is “judicial,” courts examine (1) whether 

act is purely ministerial or requires exercise of discretion; (2) whether it is type of action 

normally performed by judge; and (3) the “expectations of the parties, i.e., whether the 

parties dealt with the judge as judge”).

Examples of Judicial Acts: Bliven v. Hunt, 579 F.3d 204, 211–14 (2d Cir. 2009) (state 

court judges’ and staff attorneys’ decisions concerning amount of compensation to be paid 

assigned counsel protected by absolute judicial immunity; function carried out was found 

analogous to setting reasonable fee under fee-shifting statutes); Brookings v. Clunk, 389 

F.3d 614, 622 (6th Cir. 2004) (state judge “was engaged in a judicial act in swearing out a 

criminal complaint against [defendant] upon learning that he had committed a crime in 

his court”); Barrett v. Harrington, 130 F.3d 246, 260 (6th Cir. 1997) (“a judge instigating a 

criminal investigation against a disgruntled litigant who has harassed her is a judicial act”); 

Martinez v. Winner, 771 F.2d 424, 434–35 (10th Cir. 1985) (holding that installations of 

courtroom cameras was a judicial act; judge was both entitled and required to take steps to 

prevent criminal conduct in his courthouse).

Examples of Nonjudicial Acts: Archie v. Lanier, 95 F.3d 438, 441 (6th Cir. 1996) (holding 

that “stalking and sexually assaulting a person, no matter the circumstances, do not constitute ‘judicial acts’”); Zarcone v. Perry, 572 F.2d 52, 53 (2d Cir. 1978) (ordering coffee vendor 

handcuffed, and subjecting him to “pseudo-official inquisition” because judge did not like 

his coffee, are not judicial acts), cert. denied, 439 U.S. 1072 (1979).

1092. 386 U.S. 547 (1967).

1093. Id. at 553–55.

1094. Id. at 553–54 (quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868)).

Chapter 16: Personal Liability: Qualified Immunity, p. 143

1095. 435 U.S. 349 (1978). 

1096. Id. at 364.

1097. Id. at 356–57.

1098. 502 U.S. 9 (1991).

1099. Id. at 13.

1100. 484 U.S. 219 (1988).

1101. Id. at 230.

1102. Id. at 229.

1103. 466 U.S. 522 (1984).

1104. 42 U.S.C. § 1983(b).

1105. 42 U.S.C. § 1983 (2000) (as amended by Pub. L. No. 104-317, § 309(c), 110 Stat. 

3847).

1106. Roth v. King, 449 F.3d 1272, 1286–87 (D.C. Cir. 2006), cert. denied, 549 U.S. 1210 

(2007).

1107. 438 U.S. 478 (1978) (Bivens claim).

1108. Id. at 513.

1109. 474 U.S. 193 (1985) (Bivens claim).
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274

1110. Id. at 204. In Wood v. Strickland, 420 U.S. 308, 320 (1975), the Court held that 

absolute immunity was not necessary to protect school board members’ ability to exercise 

discretion in deciding how to discipline students.

The First Circuit, in Bettencourt v. Board of Registration, 904 F.2d 772 (1st Cir. 1990), 

held that in determining whether an official is entitled to absolute judicial immunity, courts 

should engage in the following analysis:

First, does a Board member, like a judge, perform a traditional “adjudicatory” function, in that 

he decides facts, applies law, and otherwise resolves disputes on the merits (free from direct 

political influence)? Second, does a board member, like a judge, decide cases sufficiently controversial that, in the absence of absolute immunity, he would be subject to numerous damages actions? Third, does a Board member, like a judge, adjudicate disputes against a backdrop 

of multiple safeguards designed to protect [the parties’] constitutional rights?

Id. at 783, quoted in Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006). See also

Applewhite v. Briber, 506 F.3d 181, 182 (2d Cir. 2007) (state medical board members’ revocation of medical license protected by absolute immunity because, inter alia, proceeding afforded adequate procedural safeguards), cert. denied, 552 U.S. 1296 (2008); Buser v. 

Raymond, 476 F.3d 565, 568–71 (8th Cir. 2007) (state chief medical officer who was absent 

from state board of medicine and surgery disciplinary hearings was protected by absolute 

quasi-judicial immunity because, inter alia, hearing process contained adequate procedural 

safeguards and was insulated from political influence).

1111. Antoine v. Byers & Anderson, 508 U.S. 429, 436–37 (1993). 

1112. Oliva v. Heller, 839 F.2d 37, 39–40 (2d Cir. 1988), cert. denied, 519 U.S. 1118 

(1997). Accord Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996).

1113. See, e.g., Maness v. Dist. Court of Logan Cnty.-N. Div., 495 F.3d 943 (8th Cir. 

2007) (§ 1983 complaint alleged state court clerk refused to present plaintiff’s IFP application to county circuit court judge; court held that because clerk’s conduct was ministerial 

rather than discretionary, claim was governed by qualified rather than by absolute immunity; the clerk, however, prevailed under qualified immunity).

1114. Imbler v. Pachtman, 424 U.S. 409, 430–31 (1976). See also Van de Kamp v. Goldstein, 555 U.S. 335 (2009). 

1115. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

1116. See, e.g., Hart v. Hodges, 587 F.3d 1288 (11th Cir. 2009) (prosecutor protected by 

absolute immunity even for actions in violation of state court order), cert. denied, 130 S. 

Ct. 3389 (2010).

1117. Shmueli v. City of N.Y., 424 F.3d 231, 237 (2d Cir. 2005) (citing Bernard v. Cnty. 

of Suffolk, 356 F.3d 495 (2d Cir. 2004)).

1118. Reasonover v. St. Louis Cnty., 447 F.3d 569, 580 (8th Cir. 2006).

1119. 424 U.S. 409 (1976).

1120. Id. at 431.

1121. Id.

1122. Id. at 430–31.

1123. See, e.g., Simon v. City of N.Y., 727 F.3d 167, 171–74 (2d Cir. 2013) (although 

prosecutor’s application for material witness warrant is protected by absolute immunity, 

prosecutor’s participation in execution of warrant is governed by qualified immunity), cert. 
Notes

275

denied, 134 S. Ct. 1934 (2014); Slater v. Clarke, 700 F.3d 1200, 1203 (9th Cir. 2012) (decision by prosecutor and other officials not to extradite or to request only limited extradition protected by absolute immunity); Giraldo v. Kessler, 694 F.3d 161, 167 (2d Cir. 2012) 

(prosecutors who detained and conducted lengthy interview of female victim of domestic 

abuse incident following arrest of boyfriend protected by absolute prosecutorial immunity; 

interview was integral part of advocacy functions, namely, making decisions concerning, 

e.g., pursuit of charges, arraignment, and bail); Lacey v. Maricopa Cnty., 693 F.3d 896, 914, 

928–34 (9th Cir. 2012) (en banc) (county attorney’s appointment of special prosecutor 

protected by absolute prosecutorial immunity; but special prosecutor’s ordering warrantless arrest not protected by absolute immunity because he acted outside role of advocate); 

Koubriti v. Convertino, 593 F.3d 459, 467–69 (6th Cir. 2010) (Bivens action) (Brady claims 

based on allegations prosecutor directed FBI agent not to record witness interviews defeated by absolute prosecutorial immunity); Warney v. Monroe Cnty., 587 F.3d 113, 120–26 

(2d Cir. 2009), cert. denied, 131 S. Ct. 82 (2010) (prosecutor’s delay during postconviction 

proceedings in disclosing exculpatory evidence to defense); Cady v. Arenac Cnty., 574 F.3d 

334, 341 (6th Cir. 2009) (prosecutor who enters into release dismissal agreement protected 

by absolute prosecutorial immunity: entering into such an agreement with criminal defendant is one way prosecutor may resolve case in his role as advocate for state); Brown v. Cal. 

Dep’t of Corr., 554 F.3d 747, 750–51 (9th Cir. 2009) (prosecutor’s parole recommendation 

protected by absolute prosecutorial immunity defense because “parole decisions are a continuation of the sentencing process”).

Although a § 1983 malicious prosecution claim against a prosecutor would be barred 

by absolute prosecutorial immunity, it may be asserted against a law enforcement officer 

who influenced a prosecutor to initiate a prosecution. Hartman v. Moore, 547 U.S. 250, 

265–66 (2006).

1124. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). See also Hoog-Watson v. Guadalupe Cnty., 591 F.3d 431 (5th Cir. 2009) (county attorney’s participation in search and 

seizure of property was investigative function not protected by absolute prosecutorial immunity); Harris v. Bornhorst, 513 F.3d 503 (6th Cir.) (prosecutor’s instruction to police to 

arrest suspect not protected by absolute immunity because prosecutor acted in administrative or investigative capacity), cert. denied, 554 U.S. 903 (2008).

1125. Buckley, 509 U.S. at 277–78.

1126. Id. See Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014) (prosecutor who fabricated 

evidence prior to suspect’s arrest may be held liable under § 1983 if he participated either 

in indicting or trying criminal defendant).

1127. Burns v. Reed, 500 U.S. 478, 492–96 (1991).

1128. Lacey, 693 F.3d at 914.

1129. Simon v. City of N.Y., 727 F.3d 167, 171–74 (2d Cir. 2013). 

1130. Buckley, 509 U.S. at 273 (“There is a difference between the advocate’s role in evaluating evidence and interviewing witnesses as he prepares for trial, on the one hand, and 

the detective’s role in searching for the clues and corroboration that might give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor 

performs the investigative functions normally performed by a detective or police officer, it 

is ‘neither appropriate nor justifiable that, for the same act, immunity should protect the 
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one and not the other.’” (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), 

cert. denied, 415 U.S. 917 (1974))).

1131. 555 U.S. 335 (2009).

1132. 500 U.S. 478 (1991).

1133. Id. at 487.

1134. Id. at 492.

1135. Id. at 496.

1136. Id. at 491.

1137. Id. at 493.

1138. Id. at 495 (emphasis added).

1139. 509 U.S. 259 (1993).

1140. Id. at 272–77.

1141. Id. at 274–78.

1142. Id. at 274.

1143. Id. at 274 n.5.

1144. 522 U.S. 118 (1997).

1145. As discussed in the next section concerning witness immunity, complaining witnesses have not been protected by absolute immunity.

1146. 555 U.S. 335 (2009).

1147. Brady v. Maryland, 373 U.S. 83 (1963).

1148. Van de Kamp, 555 U.S. at 339.

1149. Id. at 341. 

1150. Id. at 343. 

1151. Id. at 344.

1152. Id.

1153. Id.

1154. Id. at 346. 

1155. Id. at 347.

1156. Id. at 348.

1157. Id. at 348–49.

1158. Id. at 349.

1159. 587 F.3d 113 (2d Cir. 2009).

1160. Id. at 121. 

1161. Id. at 123. 

1162. Id. The Second Circuit noted that prosecutors are ethically bound to disclose 

exculpatory material postconviction, and in extreme cases, may be subject to criminal prosecution. Warney, 587 F.3d at 125.

1163. Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990).

1164. Following are illustrative courts of appeals decisions, by circuit, concerning social worker immunity: Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992); Doe v. Whelan, 732 

F.3d 151 (2d Cir. 2013); V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010); Ernst v. Child & 

Youth Servs., 108 F.3d 486 (3d Cir.), cert. denied, 522 U.S. 850 (1997); White v. Chambliss, 

112 F.3d 731 (4th Cir.), cert. denied, 522 U.S. 913 (1997); Wernecke v. Garcia, 591 F.3d 386 

(5th Cir. 2009); Kovacic v. Cuyahoga Cnty. Dep’t of Children & Family Servs., 724 F.3d 687 
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(6th Cir. 2013); Andrews v. Hickman Cnty., 700 F.3d 845 (6th Cir. 2012); Xiong v. Wagner, 

700 F.3d 282 (7th Cir. 2012); Hutson v. Walker, 688 F.3d 477 (8th Cir. 2012); Tamas v. Dep’t 

of Soc. & Health Servs., 630 F.3d 833 (9th Cir. 2010); Snell v. Tunnell, 920 F.2d 673 (10th 

Cir. 1990), cert. denied, 499 U.S. 976 (1991); Loftus v. Clark-Moore, 690 F.3d 1200 (11th 

Cir. 2012); Gray v. Poole, 275 F.3d 1113 (D.C. Cir. 2002). 

1165. 460 U.S. 325 (1983).

1166. Id. at 333.

1167. Id. at 343. Even prior to Rehberg v. Paulk, 132 S. Ct. 1497 (2012), discussed at pages 139–41, lower federal courts generally applied absolute witness immunity to alleged conspiracies to give false testimony, see, e.g., Muldowan v. City of Warren, 578 F.3d 351, 389–90 

(6th Cir. 2009), cert. denied, 130 S. Ct. 3504 (2010); to witness preparation, see, e.g., Latta v. 

Chapala, 221 F. App’x 443 (7th Cir. 2007); and to testimony in quasi-judicial proceedings, 

see, e.g., Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008).

1168. 132 S. Ct. 1497 (2012).

1169. Id. at 1505.

1170. Id. at 1506 (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 283 (1993) (Kennedy, 

J., concurring in part and dissenting in part)).

1171. Id. at 1506–07.

1172. Id. at 1507 (citing Kalina, 522 U.S. at 131; Malley, 475 U.S. at 340–41).

1173. Id. at 1507 n.1. For example, only qualified immunity is accorded law enforcement officials who falsify affidavits or fabricate evidence concerning an unresolved crime. 

Id. The Second Circuit held that Rehberg did not preclude use of grand jury testimony to 

impeach the credibility of the defendant law enforcement officer. Marshall v. Randall, 719 

F.3d 113, 115–18 (2d Cir. 2013).

1174. Rehberg, 132 S. Ct. at 1507–08.

1175. Id. at 1507.

1176. Id.

1177. Id. at 1508.

1178. Id. at 1510 (citing Brice v. Nkaru, 220 F.3d 233, 239 n.6 (4th Cir. 2000); Curtis v. 

Bembenek, 48 F.3d 281, 284–85 (7th Cir. 1995)).

1179. See, e.g., Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008) (absolute immunity 

protected witness who testified in arbitration proceeding with procedural safeguards nearly 

identical to those in judicial proceedings).

1180. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); Tenney v. Brandhove, 341 U.S. 367, 

377 (1951).

1181. See, e.g., Bogan, 523 U.S. at 55 (city council member who introduced budget eliminating plaintiff’s employment position and mayor who signed bill into law protected by 

absolute immunity); Sup. Ct. of Va. v. Consumers Union of the U.S., 446 U.S. 719, 734 

(1980) (state judges’ promulgation of attorney professional responsibility rules was protected by absolute immunity); Tenney, 341 U.S. at 377 (legislators who carried out a legislative investigation were protected by absolute immunity because “investigations, whether 

by standing or special committees, are an established part of representative government”).
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1182. Bogan, 523 U.S. at 54. See also Torres-Rivera v. Calderon-Serra, 412 F.3d 205, 

213–14 (1st Cir. 2005) (governor’s signing of bill into law protected by absolute immunity 

regardless of motive or intent).

1183. See 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 

§ 9.08[B][5] (4th ed. 2014).

1184. 523 U.S. 44 (1998).

1185. Id. at 48–49 (noting absolute legislative immunity “fully applicable to local legislators”).

1186. Id. at 55.

1187. Id.

1188. 440 U.S. 391 (1979).

1189. Id. at 394.

1190. 446 U.S. 719 (1980).

1191. Id. at 731–34.

1192. Id. at 734.

1193. Id. at 732; Scott v. Taylor, 405 F.3d 1251, 1257 (11th Cir. 2005); Star Distrib. Ltd. 

v. Marino, 613 F.2d 4, 6 (2d Cir. 1980).

1194. Star, 613 F.2d at 7 (relying on Eastland v. United States Servicemen’s Fund, 421 

U.S. 491, 503 (1974)).

1195. Qualified immunity is not applicable to claims for injunctive relief. Behrens v. 

Pelletier, 516 U.S. 299, 312 (1996).

1196. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accord Plumhoff v. Rickard, 134 

S. Ct. 2012, 2019 (2014); Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011); Saucier v. Katz, 533 U.S. 

194, 200–01 (2001).

1197. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Tolan v. Cotton, 134 S. 

Ct. 1861, 1866 (2014) (per curiam); Wood v. Moss, 134 S. Ct. 2056, 2067 (2014); Stanton 

v. Sims, 134 S. Ct. 3, 4–7 (2013) (per curiam); Messerschmidt v. Millender, 132 S. Ct. 1235, 

1244–45 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); Safford Unified Sch. Dist. 

No. 1 v. Redding, 557 U.S. 364, 377 (2009); Pearson v. Callahan, 555 U.S. 223, 231 (2009); 

Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Groh v. Ramirez, 540 U.S. 551, 563 (2004); 

Hope v. Pelzer, 536 U.S. 730, 739 (2002); Saucier, 533 U.S. at 201; Wilson v. Layne, 526 U.S. 

603, 609 (1999); Hunter v. Bryant, 502 U.S. 224, 227 (1991); Anderson v. Creighton, 483 

U.S. 635, 638–39 (1987); Malley v. Briggs, 475 U.S. 335, 344–45 (1986); Davis v. Scherer, 

468 U.S. 183, 190–91 (1984). See also Gonzalez v. City of Schenectady, 728 F.3d 149, 161 (2d 

Cir. 2013) (police officers only expected “to be familiar with black-letter law applicable to 

commonly encountered situations . . . .”); Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d 

Cir. 2013) (to determine whether defendant violated clearly established federal law, issue 

“is not how courts or lawyers might have understood the state of the law at the time of the 

challenged conduct,” but “whether it would be clear to a reasonable officer that his conduct 

was unlawful in the situation he confronted”) (quoting Saucier v. Katz, 553 U.S. 194, 202 

(2001)). Several of the Supreme Court qualified immunity decisions are in Bivens actions. 

The same qualified immunity analysis applies in § 1983 suits and Bivens suits. Wilson, 526 

U.S. at 609; Davis, 468 U.S. at 194.

1198. Handt v. Lynch, 681 F.3d 939, 945 (2012).
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279

1199. Davis, 468 U.S. at 191.

1200. Pearson, 555 U.S. at 231. Accord Wood v. Moss, 134 S. Ct. 2056, 2065 (2014).

1201. al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 

Accord Messerschmidt, 132 S. Ct. at 1244–45.

1202. Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (quoting Siegert v. Gilley, 500 U.S. 226, 

236 (1991) (Kennedy, J., concurring in judgment)).

1203. Although the courts have articulated a variety of two- and three-part qualified 

immunity tests, the author believes that the essential qualified immunity question is whether the officer violated clearly established federal law. 1A Schwartz, supra note 1183, § 9A.04. 

See, e.g., Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (three-part test); Causey v. City 

of Bay City, 443 F.3d 524, 528 n.2 (6th Cir. 2006) (observing that Sixth Circuit employs 

both two- and three-part tests); Frederick v. Morse, 439 F.3d 1114, 1122–23 (9th Cir. 2006) 

(three-part test); Borges-Colon v. Roman Abreu, 438 F.3d 1, 18–19 (1st Cir. 2006) (threepart test); Wilson v. Flynn, 429 F.2d 465, 467 (4th Cir. 2005) (two-part approach); Tinker v. 

Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005) (three-step approach). For a cogent criticism 

of multipart tests, see Walczyk, 496 F.3d at 165–71 (Sotomayor, J., concurring).

1204. Crawford-El v. Britton, 523 U.S. 574, 588 (1998).

1205. See, e.g., Amore v. Novarro, 624 F.3d 522, 535 (2d Cir. 2010) (on § 1983 warrantless arrest claim, court does not consider officer’s subjective intent, but does consider 

information known to officer at time of arrest).

1206. Hope v. Pelzer, 536 U.S. 730, 741 (2002); United States v. Lanier, 520 U.S. 259, 270 

(1997). Accord Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).

1207. Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Accord Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005); Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004).

1208. 533 U.S. 194 (2001), overruled in part, Pearson v. Callahan, 555 U.S. 223 (2009).

1209. Saucier, 533 U.S. at 205.

1210. Id. at 206.

1211. Id. at 205.

1212. Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (constitutional issue concerns reasonableness of officer’s mistake of fact, while qualified immunity issue of 

“clearly established law” concerns reasonableness of officer’s mistake of law), cert. denied, 

132 S. Ct. 1032 (2012). See supra p. 59.

1213. Pearson, 555 U.S. at 231 (Alito, J.) (dictum) (quoting Groh v. Ramirez, 540 U.S. 

551, 567 (2004) (Kennedy, J., dissenting)).

1214. See, e.g., Stearns v. Clarkson, 615 F.3d 1278, 1284–85 (10th Cir. 2010) (“fact that 

an officer obtains a prosecutor’s determination of probable cause is only one factor that is 

relevant to the qualified immunity analysis”); Moss v. Martin, 614 F.3d 707, 712 (7th Cir. 

2010) (weight court gives to officer’s reliance on advice of counsel “depends on such factors 

like how much information counsel had and how closely tailored the advice was to the [law] 

in question”); Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010) (“following 

orders” defense not respected in American jurisprudence); Ewing v. City of Stockton, 588 

F.3d 1218, 1231 (9th Cir. 2009) (while officer’s consultation with counsel does not automatically insulate officer from liability, it goes far to establish qualified immunity); Lawrence 

v. Reed, 406 F.3d 1224, 1230–31 (10th Cir. 2005). However, in some circumstances, official 
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conduct pursuant to advice of counsel may render the official’s conduct objectively reasonable and, therefore, protected by qualified immunity. See, e.g., Sueiro Vazquez v. Torregrosa 

de la Rosa, 494 F.3d 227, 236 (1st Cir. 2007) (while acknowledging that acting on advice of 

counsel alone will not provide protection under qualified immunity, court ruled that defendants were protected by qualified immunity because their reliance on advice of government 

counsel, which they were required to follow, was not unreasonable). See also Fleming v. 

Livingston Cnty., 674 F.3d 874, 881 (7th Cir. 2012) (police officer consulting state’s attorney 

“goes a long way toward solidifying his qualified immunity defense”); Kelly v. Borough of 

Carlisle, 622 F.3d 248, 255–56 (3d Cir. 2010) (police officer who in good faith relied on 

prosecutor’s legal opinion that arrest is lawful is presumptively entitled to qualified immunity on claim arrest not supported by probable cause; plaintiff may rebut presumption by 

showing reasonable officer would not have relied on prosecutor’s advice).

Presumptively Valid Statute: An officer who acted pursuant to a presumptively constitutional state statute or ordinance subsequently found to be unconstitutional will likely be 

protected by qualified immunity. See, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 823 

(9th Cir. 2013); Connecticut v. Crotty, 346 F.3d 84, 104 (2d Cir. 2003); Grossman v. City of 

Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).

1215. 132 S. Ct. 1235 (2012).

1216. Messerschmidt, 132 S. Ct. at 1249 (citing Malley v. Briggs, 475 U.S. 335, 341 

(1986)). See also Armstrong v. Asselin, 734 F.3d 984, 991–94 (9th Cir. 2013). Cf. Snider v. 

City of Cape Girardeau, 752 F.3d 1149 (8th Cir. May 30, 2014) (arresting officer not protected by qualified immunity because state penal law was clearly unconstitutional).

1217. Messerschmidt, 132 S. Ct. at 1250. To hold that the defendants/officers were not 

entitled to qualified immunity would mean that not only were they “‘plainly incompetent,’ 

but that their supervisor, the deputy district attorney, and the magistrate [who issued the 

warrant] were as well.” Id. at 1249 (citation omitted).

1218. See decisions cited in 1A Schwartz, supra note 1183, § 9A.05[D].

1219. See, e.g., Messerschmidt, 132 S. Ct. 1235; Ashcroft v. al-Kidd, 131 S. Ct. 2074 

(2011); Safford Unified Sch. Dist. # 1 v. Redding, 557 U.S. 364 (2009); Ashcroft v. Iqbal, 556 

U.S. 662 (2009); Pearson v. Callahan, 555 U.S. 223 (2009); Brosseau v. Haugen, 543 U.S. 194 

(2004); Groh v. Ramirez, 540 U.S. 551 (2004); Anderson v. Creighton, 483 U.S. 635 (1987); 

Malley v. Briggs, 475 U.S. 335 (1986).

1220. 521 U.S. 399 (1997).

1221. 504 U.S. 158 (1992).

1222. See Clement v. City of Glendale, 518 F.3d 1090 (9th Cir. 2008); Vector Research, 

Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692 (6th Cir. 1996); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113 (5th 

Cir.), cert. denied, 510 U.S. 977 (1993).

1223. For post-Richardson decisions, compare, e.g., Burke v. Town of Walpole, 405 F.3d 

66, 88 (1st Cir. 2005) (forensic odontologist retained by district attorney’s office to evaluate bite-mark evidence as part of criminal investigation was engaged in state action and 

entitled to assert qualified immunity), and Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st 

Cir. 1998) (psychiatrists under contract with state to assist police department in evaluating police officers entitled to assert qualified immunity because they performed necessary 
Notes

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function within police department), cert. denied, 525 U.S. 1105 (1999), with Jensen v. Lane 

Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (private physician who provided services to county relating to civil commitment not entitled to assert qualified immunity), and Halvorsen 

v. Baird, 146 F.3d 680, 685 (9th Cir. 1998) (private not-for-profit organization providing 

municipality with involuntary commitment services for inebriates not entitled to assert 

qualified immunity; fact that organization was not for profit not sufficient basis for distinguishing Richardson).

For pre-Richardson decisions allowing the private party defendant to assert qualified 

immunity, see Young v. Murphy, 90 F.3d 1225, 1234 (7th Cir. 1996) (private doctor hired by 

county to evaluate individual’s mental competency); Sherman v. Four County Counseling 

Center, 987 F.2d 397, 403 (7th Cir. 1993) (private hospital that accepted and treated mental 

patients pursuant to court order). See also 1A Schwartz, supra note 1183, § 9.15.

1224. Richardson, 521 U.S. at 413.

1225. 132 S. Ct. 1657 (2012).

1226. The Court seemed to assume that the attorney was engaged in state action. “Anyone whose conduct is ‘fairly attributable to the state’ can be sued as a state actor under 

§ 1983.” Filarsky, 132 S. Ct. at 1661 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 

(1982). Lack of immunity of part-time city workers may “deprive state actors of the ability 

to ‘reasonably anticipate when their conduct may give rise to liability for damages.’” Id. at 

1666 (quoting Anderson v. Creighton, 483 U.S. 635, 646 (1987)).

1227. Filarsky, 132 S. Ct. at 1663–64.

1228. Id. at 1665–66. Granting qualified immunity to individuals hired by government 

to carry out investigatory functions also avoids “significant line-drawing problems. It is 

unclear, for example, how Filarsky would be categorized if he regularly spent half his time 

working for the City, or worked exclusively on one City project for an entire year. . . . An 

uncertain immunity is little better than no immunity at all.” Id. at 1666.

1229. Id. at 1667.

1230. Fourth Circuit: Gregg v. Ham, 678 F.3d 333, 339–41 (4th Cir. 2012) (bail bondsman not entitled to assert qualified immunity because he doesn’t carry out public function 

and historically not afforded immunity). 

Sixth Circuit: McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012) (psychiatrist, employed by nonprofit organization but working part-time for county as prison psychiatrist, 

not entitled to assert qualified immunity; no common-law tradition of immunity for private doctor working for public institution, and same market forces at play in Richardson 

suggest inappropriateness of immunity in instant case).

1231. See Lane v. Franks, 189 L. Ed. 2d 312 (2014); Plumhoff v. Rickard, 134 S. Ct. 2012 

(2014); Wilson v. Layne, 526 U.S. 603 (1999).

1232. Anderson v. Creighton, 483 U.S. 635, 640 (1987). See also Saucier v. Katz, 533 U.S. 

194, 201 (2001) (qualified immunity analysis “must be undertaken in light of the specific 

context of the case, not as a broad general proposition”). Accord Plumhoff v. Rickard, 134 S. 

Ct. 2012, 2023 (2014); Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012); Brosseau v. Haugen, 

543 U.S. 194, 198 (2004).
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1233. Anderson, 483 U.S. at 640. However, the facts of the existing precedent need not 

be “materially similar” to those of the instant case. Hope v. Pelzer, 536 U.S. 730, 739 (2002). 

The issue is necessarily a question of degree.

1234. See, e.g., Dorheim v. Sholes, 430 F.3d 919, 926 (8th Cir. 2005) (need to weigh competing interests makes it difficult for plaintiff “to overcome a qualified immunity defense 

in the context of a child abuse investigation”); Manzano v. S.D. Dep’t of Soc. Servs., 60 F.3d 

505, 510 (8th Cir. 1995) (same).

1235. Wilson v. Layne, 526 U.S. 603, 617 (1999). See also Plumhoff v. Rickard, 134 S. Ct. 

2012, 2023 (2014); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011); Pearson v. Callahan, 

555 U.S. 223, 244–45 (2009).

1236. See Wilson, 526 U.S. at 620–21 (Stevens, J., dissenting). See also Hope v. Pelzer, 536 

U.S. 730, 741 (2002).

1237. See, e.g., Lane v. Franks, 189 L. Ed. 2d 312 (2014); Stanton v. Sims, 134 S. Ct. 3 

(2013) (per curiam); Reichle, 132 S. Ct. at 2096–97; Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 378–79 (2009); Wilson, 526 U.S. at 617.

1238. Wilson, 526 U.S. at 618. Accord Reichle, 132 S. Ct. at 2096.

1239. 536 U.S. 730 (2002).

1240. Id. at 741.

1241. Id. at 745.

1242. 131 S. Ct. 2074 (2011) (Bivens action).

1243. Id. at 2083 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); Malley v. 

Briggs, 475 U.S. 335 (1986)).

1244. al-Kidd, 131 S. Ct. at 2084. The Supreme Court thus found that the circuit court 

erred in relying on broad historical principles underlying the Fourth Amendment. Id. See 

also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); Reichle, 132 S. Ct. at 2093–94.

1245. al-Kidd, 131 S. Ct. at 2083–84.

1246. Id. at 2084 (quoting Wilson, 526 U.S. at 617).

1247. Id. at 2085.

1248. 557 U.S. 364 (2009).

1249. Id. at 377 (quoting K.H. v. Morgan, 914 F.3d 846, 851 (7th Cir. 1990)).

1250. Id. at 377–78 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

1251. Id. at 378–79. When the United States overturns its own precedent, officials who 

relied on the prior precedent are protected by qualified immunity. Arizona v. Gant, 556 U.S. 

332, 350 n.11 (2009) (dictum).

1252. Redding, 557 U.S. at 378.

1253. Anderson v. Creighton, 483 U.S. 635, 643–45 (1987); Malley v. Briggs, 475 U.S. 

335, 344–45 (1986). See also Stanton v. Sims, 134 S. Ct. 3 (2013) (per curiam); Ryburn v. 

Huff, 132 S. Ct. 987, 992 (2012) (per curiam) (“reasonable police officers in [the defendant-officers’] position could have come to the conclusion that the Fourth Amendment 

permitted them to enter the Huff residence if there was an objectively reasonable basis for 

fearing that violence was imminent”).

1254. 475 U.S. 335 (1986).

1255. Id. at 343–46.

1256. Id. at 344–45.
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1257. Id. at 344 (citing United States v. Leon, 468 U.S. 897 (1984) (objective reasonableness is standard for search pursuant to invalid search warrant)).

1258. Leon, 468 U.S. 897.

1259. 132 S. Ct. 1235 (2012).

1260. Id. at 1245. “‘[T]he same standard of objective reasonableness that [the Court] 

applied in the context of a suppression hearing in Leon defines the qualified immunity 

accorded an officer’ who obtained or relied on an allegedly invalid warrant.” Messerschmidt, 

132 S. Ct. at 1245 n.1 (citations omitted). See also Armstrong v. Asselin, 734 F.3d 984, 991–

94 (9th Cir. 2013)

1261. Messerschmidt, 132 S. Ct. at 1245 (quoting Malley v. Briggs, 475 U.S. 335, 341 

(1986)).

1262. Id. at 1245 (quoting Leon, 468 U.S. at 923).

1263. Id. at 1249 (quoting Malley, 475 U.S. at 341).

1264. Id. at 1250. There was no claim that the affidavit in support of the application 

for the warrant was misleading because it omitted material facts. Id. at 1245 n.2. The Court 

in Messerschmidt distinguished Groh v. Ramirez, 540 U.S. 551 (2004), on the ground that 

in Groh the search warrant’s failure to include a description of the person or property to 

be seized was a “glaring deficiency” that rendered the warrant invalid on even a “‘cursory 

reading of the warrant.’” Id. at 1250 (quoting Groh, 540 U.S. at 554–55 n.2). Any defect in 

Messerschmidt “would not have been obvious from the face of the warrant.” Id.

1265. Messerschmidt, 132 S. Ct. at 1249–50. To hold that the defendant-officers were not 

protected by qualified immunity would mean that not only were they “‘plainly incompetent,’ but that their supervisor, the deputy district attorney, and the magistrate were as well.” 

Id. at 1249 (citation omitted).

1266. 483 U.S. 635 (1987).

1267. Id. at 640.

1268. Id. The Supreme Court adhered to this approach in its later per curiam decision, Hunter v. Bryant, 502 U.S. 224 (1991). The Court explained that the proper inquiry is 

whether the officials “acted reasonably under settled law in the circumstances, not whether 

another, or more reasonable interpretation of events can be constructed.” Id. at 228. 

1269. Anderson, 483 U.S. at 641.

1270. See Ryburn v. Huff, 132 S. Ct. 987 (2012) (per curiam).

1271. Anderson, 483 U.S. at 641.

1272. Id. at 640.

1273. 533 U.S. 194 (2001), overruled in part, Pearson v. Callahan, 555 U.S. 223 (2009).

1274. 490 U.S. 386 (1989).

1275. Saucier, 533 U.S. at 201–02. See also Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 

(2014); Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004).

1276. Saucier, 533 U.S. at 203; Anderson, 483 U.S. at 643.

1277. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991). See Zellner v. Summerlin, 

494 F.3d 344, 370 (2d Cir. 2007) (“arguable” probable cause does not mean “almost” probable cause; essential inquiry is whether it was objectively reasonable to conclude there was 

probable cause).

1278. Saucier, 533 U.S. at 205.
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1279. 523 U.S. 574 (1998).

1280. Id. at 594–97.

1281. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Accord Crawford-El, 523 U.S. at 586; 

Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); 

Thomas v. Independence Twp., 463 F.3d 285, 293 (3d Cir. 2006). See Fed. R. Civ. P. 8(C) 

(affirmative defense must be raised in answer). The plaintiff does not have the burden of 

pleading facts relevant to the qualified immunity defense. Thomas, 463 F.3d at 292–94.

1282. See, e.g., Pasco v. Knoblauch, 566 F.3d 572, 577–78 (5th Cir. 2009); Stephenson v. 

Doe, 332 F.3d 68, 75–76 (2d Cir. 2003). See also cases discussed in 1A Schwartz, supra note 

1183, § 9.14[C][2][b].

1283. 556 U.S. 662 (2009) (Bivens action). 

1284. 550 U.S. 544 (2007).

1285. Iqbal, 556 U.S. at 669.

1286. See Randall v. Scott, 610 F.3d 701, 708–10 (11th Cir. 2010) (§ 1983 claims subject 

to qualified immunity are governed by Iqbal plausibility pleading standard).

1287. Iqbal, 556 U.S. at 678.

1288. Id. at 679.

1289. Id. at 684–85.

1290. Id. at 685 (citation omitted). The Court also ruled that Fed. R. Civ. P. 9(b), which, 

inter alia, allows intent to be “alleged generally,” “merely excuses a party from pleading discriminatory intent under an elevated pleading standard,” and “does not give him license to 

evade the less rigid—though still operative—strictures of [Fed. R. Civ. P.] 8.” Id. at 686–87 

(citations omitted). 

1291. See, e.g., Andrews v. Hickman Cnty., 700 F.3d 845, 853 (6th Cir. 2012); Purvis 

v. Oest, 614 F.3d 713, 717 (7th Cir. 2010), cert. denied, 131 S. Ct. 2991 (2011); Roska v. 

Sneddon, 437 F.3d 964, 971 (10th Cir. 2006); Ciminillo v. Streicher, 434 F.3d 461, 466 (6th 

Cir. 2006); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002); McClendon v. City of 

Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc); Hicks v. Feeney, 850 F.2d 152, 159 

(2d Cir. 1988).

1292. Lee v. Sandberg, 136 F.3d 94, 101 (2d Cir. 1997); Varrone v. Bilotti, 123 F.3d 75, 

78 (2d Cir. 1997); Conn. Crim. Def. Lawyers Ass’n v. Forst (In re State Police Litig.), 88 F.3d 

111, 123 (2d Cir. 1996).

1293. See Behrens v. Pelletier, 516 U.S. 299, 308–09 (1996) (motion to dismiss); Ortiz 

v. Jordan, 131 S. Ct. 884, 889–90 (2011) (motion for summary judgment or for judgment 

as matter of law).

1294. See, e.g., Warlik v. Cross, 969 F.2d 303 (7th Cir. 1992). See generally Ortiz v. Jordan, 

131 S. Ct. 884 (2011).

1295. See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004); Williams v. Ala. State 

Univ., 102 F.3d 1179, 1182 (11th Cir. 1997).

1296. See Ashcroft v. Iqbal, 556 U.S. 662 (2009).

1297. Id.; Williams, 102 F.3d at 1182.

1298. See Hunter v. Bryant, 502 U.S. 224, 227–28 (1991). See also Anderson v. Creighton, 

483 U.S. 635, 646 n.6 (1987). Qualified immunity seeks to free officials from “‘disruptive 
Notes

285

discovery.’” Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (quoting Siegert v. Gilley, 500 U.S. 

226, 236 (1991) (Kennedy, J., concurring in judgment)).

1299. 502 U.S. 224 (1991).

1300. Id. at 228. Accord Wood v. Moss, 134 S. Ct. 2056, 2065 n.4 (2014).

1301. Hunter, 502 U.S. at 228. Accord Anderson, 483 U.S. at 646 n.6.

1302. Anderson, 483 U.S. at 646 n.6; Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982).

1303. Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996).

1304. See also id. at 306 (“Unless the plaintiff’s allegations state a claim of violation of 

clearly established law, a defendant pleading qualified immunity is entitled to dismissal 

before the commencement of discovery.” (internal quotation marks and citation omitted)).

1305. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (plurality opinion).

1306. 457 U.S. 800 (1982).

1307. Anderson, 483 U.S. at 646 n.6.

1308. Lewis v. City of Fort Collins, 903 F.2d 752, 758 (10th Cir. 1990) (quotation omitted). See Fed. R. Civ. P. 56(f).

1309. 523 U.S. 574 (1998).

1310. Id. at 598–99.

1311. Id. at 599.

1312. Id.

1313. Id. at 599 n.20.

1314. Id. at 600 (quoting 28 U.S.C. § 1915(e)(2) (Supp. 1998)).

1315. Id. at 601.

1316. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).

1317. 134 S. Ct. 1861, 1865–68 (2014) (per curiam).

1318. 550 U.S. 372 (2007), discussed supra Chapter 5, § V.3.

1319. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

1320. 131 S. Ct. 884 (2011).

1321. See Hunter v. Bryant, 502 U.S. 224, 228 (1991). See also Mitchell, 472 U.S. at 526; 

Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982).

1322. See, e.g., A.D. v. Cal. Highway Patrol, 712 F.3d 446, 459 (9th Cir. 2013) (post-verdict court must apply qualified immunity framework to facts found by jury); Cortes-Reyes 

v. Salas-Quintana, 608 F.3d 41, 51 n.10 (1st Cir. 2010) (district court erroneously submitted qualified immunity to jury; whether defendant protected by qualified immunity is legal question for court, and jury’s role is to determine any preliminary factual questions); 

Gonzales v. Duran, 590 F.3d 855, 859–61 (10th Cir. 2009) (when facts relevant to qualified 

immunity in dispute, district court should submit special interrogatories to jury to determine facts, and should reserve for itself legal issue of qualified immunity; in rare cases 

when narrow issues of disputed material facts are dispositive of qualified immunity defense, district court may define clearly established law for jury and instruct jury to decide 

qualified immunity defense, i.e., whether defendant’s conduct was objectively reasonable 

under clearly established law defined by court; it is never proper to allow jury to determine 

what is clearly established law); Torres v. City of L.A., 548 F.3d 1197, 1211 (9th Cir. 2008) 

(qualified immunity may be submitted to jury when historical facts material to qualified 

immunity in dispute), cert. denied, 129 S. Ct. 1995 (2009). For other decisions taking this 
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position, see Curley v. Klem, 499 F.3d 199, 211–15 (3d Cir. 2007); Willingham v. Crooke, 

412 F.3d 553, 560 (4th Cir. 2005); Littrell v. Franklin, 388 F.3d 578, 584–85 (8th Cir. 2004); 

Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004); Stephenson v. Doe, 332 

F.3d 68, 80–81 (2d Cir. 2003); Johnson v. Breeden, 280 F.3d 1308, 1319 (11th Cir. 2002). But 

see Brown v. Sudduth, 675 F.3d 472, 482 (5th Cir. 2012) (“A jury may be given the issue of 

qualified immunity if that defense was not resolved on summary judgment.”) (citing Melear v. Separs, 862 F.2d 1177, 1184 (5th Cir. 1989)); McCoy v. Hernandez, 203 F.3d 371, 376 

(5th Cir. 2000) (jury may decide qualified immunity defense); Presley v. City of Benbrook, 

4 F.3d 405, 409 (5th Cir. 1993) (same). See also Zellner v. Summerlin, 494 F.3d 344, 368 (2d 

Cir. 2007) (citations omitted):

Once the jury has resolved any disputed facts that are material to the qualified immunity 

issue, the ultimate determination of whether the officer’s conduct was objectively reasonable 

is to be made by the court. . . . To the extent that a particular finding of fact is essential to 

a determination by the court that the defendant is entitled to qualified immunity, it is the 

responsibility of the defendant to request that the jury be asked the pertinent question. If the 

defendant does not make such a request, he is not entitled to have the court, in lieu of the jury, 

make the needed factual finding.

1323. Rodriguez-Marin v. Rivera-Gonzales, 438 F.3d 72, 83 (1st Cir. 2006). Accord Curley, 499 F.3d at 215 (qualified immunity focuses on “established legal standards and requires 

a review of relevant case law, a review a jury simply cannot make”).

1324. 533 U.S. 194 (2001), overruled in part, Pearson v. Callahan, 555 U.S. 223 (2009).

1325. Saucier, 533 U.S. at 201. For decisions that reached the same result, see Harris, 

550 U.S. at 377; Hope v. Pelzer, 536 U.S. 730, 736 (2002); Wilson v. Layne, 526 U.S. 603, 609 

(1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999); Cnty. of Sacramento v. Lewis, 523 U.S. 

833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 231 (1991).

1326. 555 U.S. 223 (2009).

1327. Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014); Tolan v. Cotton, 134 S. 

Ct. 1861, 1866 (2014) (per curiam); Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); Camreta v. Green, 131 S. Ct. 2020, 2031 (2011).

1328. Pearson, 555 U.S. at 242–43.

1329. Id. at 236 (quoting Lyons v. City of Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J., concurring)).

1330. Id.

1331. Id. at 242. See, e.g., Plumhoff , 134 S. Ct. at 2020. When a circuit court follows the 

two-step procedure and decides both issues, the Supreme Court has “discretion to correct 

errors at each step.” al-Kidd, 131 S. Ct. at 2080. When the court of appeals finds that the 

defendant acted unconstitutionally, but is protected by qualified immunity because she did 

not violate clearly established federal law, the Supreme Court has discretion to review the 

decision of the circuit court, so long as an Article III case or controversy remains between 

the parties. Camreta v. Greene, 131 S. Ct. 2020 (2011).

1332. Pearson, 555 U.S. at 237, 239. See also Reichle, 132 S. Ct. at 2093 (court exercised 

discretion granted by Pearson and grated defendants “qualified immunity on the ground that 

a purported right was not ‘clearly established’ by prior case law, without resolving the often 

more difficult question whether the purported right exists at all”); al-Kidd, 131 S. Ct. at 2080.
Notes

287

1333. al-Kidd, 131 S. Ct. at 2080.

1334. Pearson, 555 U.S. at 237.

1335. Id.

1336. Id. at 238.

1337. Id.

1338. Id. at 238–39.

1339. 297 U.S. 288 (1936) (Brandeis, J., concurring).

1340. Pearson, 555 U.S. at 241.

1341. Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S. 304, 311 

(1995); Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985). See also Ortiz v. Jordan, 131 S. Ct. 

884, 891 (2011).

The jurisdictional basis for this appeal is 28 U.S.C. § 1291, which provides that the 

“courts of appeal . . . shall have jurisdiction of appeals from all final decisions of the district 

courts of the United States.” When the qualified immunity appeal can be decided as a matter of law, the order denying qualified immunity is considered final under the “collateral 

order doctrine” articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 

(1949). See Mitchell, 472 U.S. at 524–27.

1342. Johnson, 515 U.S. at 313. See also Ortiz, 131 S. Ct. at 2011.

1343. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); McKenna v. Wright, 386 F.3d 432 (2d 

Cir. 2004).

1344. 516 U.S. 299 (1996).

1345. Id. at 306–07.

1346. Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989).

1347. Behrens, 516 U.S. at 310–11; Chan v. Wodnicki, 67 F.3d 137, 139 (7th Cir. 1995); 

Yates v. City of Cleveland, 941 F.2d 444, 448 (6th Cir. 1991); Apostol, 870 F.2d at 1339.

1348. Behrens, 516 U.S. at 310–11. The appellate court also determines whether it has 

jurisdiction after the district court has determined the appeal to be frivolous. See, e.g., Dickerson v. McClellan, 37 F.3d 251, 252 (8th Cir. 1994).

1349. 131 S. Ct. 884 (2011).

1350. Id. at 889.

1351. Id. (citing Fed. R. Civ. P. 50(a), (b)).

Chapter 17: Exhaustion of State Remedies, p. 162

1352. Monroe v. Pape, 365 U.S. 167, 183 (1961).

1353. See infra Chapter 18.

1354. Hudson v. Palmer, 468 U.S. 517, 532 (1984); Parratt v. Taylor, 451 U.S. 527, 541 

(1981).

1355. See supra Chapter 4, § III.E.

1356. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982).

1357. Zinermon v. Burch, 494 U.S. 113, 135–36 (1990).

1358. 557 U.S. 52 (2009).

1359. Id. at 71 (citation omitted). See also Christiansen v. W. Branch Cmty. Sch. Dist., 

674 F.3d 927, 935–36 (8th Cir. 2012) (§ 1983 plaintiff who asserts right to postdeprivation 

process must pursue available postdeprivation remedies).
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1360. Parratt, 451 U.S. at 544.

1361. 411 U.S. 475 (1973).

1362. 544 U.S. 74 (2005).

1363. 541 U.S. 637 (2004).

1364. Id. at 644. See also Hill v. McDonough, 547 U.S. 573, 580–81 (2006) (constitutional challenge to three-drug sequence used to execute by lethal injection may be brought 

under § 1983).

1365. In Baze v. Rees, 128 S. Ct. 1520 (2008), the Supreme Court held, in a declaratory 

judgment action, that Kentucky’s three-drug protocol for carrying out the death penalty 

by lethal injection did not violate the Eighth Amendment prohibition against cruel and 

unusual punishment.

1366. 512 U.S. 477 (1994).

1367. 541 U.S. 637 (2001).

1368. Id. at 647 (quoting Heck, 512 U.S. at 487).

1369. See Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011) (noting that 

most circuit courts hold § 1983 excessive force claims do not necessarily imply invalidity of 

conviction for resisting arrest or peace officer or the like; also noting, however, that to extent 

state law “under which a conviction is obtained differs, the answer to the Heck question 

could also differ”). 

1370. 131 S. Ct. 1289 (2011).

1371. 544 U.S. 74 (2005), discussed at note 1362 and accompanying text.

1372. Skinner, 131 S. Ct. at 1293 (quoting Wilkinson, 544 U.S. at 81).

1373. Id. at 1299. Skinner rejected the defendants’ argument that allowing the suit to be 

brought under § 1983 will lead to a proliferation of other such § 1983 suits.

In the Circuits that currently allow § 1983 claims for DNA testing, no evidence tendered by 

[defendant] shows any litigation flood or even rainfall. The projected toll on federal courts is 

all the more implausible regarding DNA testing claims, for Osborne has rejected substantive 

due process as a basis for such claims.

Id. (internal references omitted). Further, the Prison Litigation Reform Act “has placed 

a series of controls on prisoner suits, constraints designed to prevent sportive filings in 

federal court.” Id.

In dictum, the Court opined that in contrast to a “DNA access to evidence” claim, Brady

claims are “within the traditional core of habeas corpus and outside the province of § 1983.” 

Id. at 1300 (citing Heck v. Humphrey, 512 U.S. 477, 479 (1994); Amaker v. Weiner, 179 F.3d 

48, 51 (2d Cir. 1999); Beck v. Muskagee Police Dept., 195 F.3d 553, 560 (10th Cir. 1999)). A 

Brady claim requires a showing that the state suppressed evidence material to guilt or punishment. “[P]arties asserting Brady violations postconviction generally do seek a judgment 

qualifying them for ‘immediate or speedier release’ from imprisonment.” Skinner, 131 S. Ct. 

at 1300 (citing Wilkinson, 544 U.S. at 82).

1374. 549 U.S. 384 (2007).

1375. Id. at 393.

1376. 520 U.S. 641 (1997).

1377. Id. at 646.

1378. 540 U.S. 749 (2004).
Notes

289

1379. Id. at 754–55.

1380. 523 U.S. 1 (1998).

1381. The trend is to hold the Heck doctrine inapplicable in these circumstances. See

Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010); Morrow v. Fed. Bureau of Prisons, 610 

F.3d 1271 (11th Cir. 2010); Wilson v. Johnson, 535 U.S. 262 (4th Cir. 2008). 

1382. 457 U.S. 496 (1982).

1383. See, e.g., Santana v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004). 

1384. 42 U.S.C. § 1997e(a) (1996). 

1385. 532 U.S. 731 (2001).

1386. 534 U.S. 516 (2002).

1387. Id. at 532.

1388. 548 U.S. 81 (2006).

1389. Id. at 102. In some cases courts have held that the PLRA exhaustion requirement 

should not apply when the failure to exhaust was not the prisoner’s fault. For example, 

when a prison official’s threats toward an inmate inhibit the inmate’s ability to pursue an 

administrative grievance procedure, the defendant should be estopped from asserting failure to exhaust. See, e.g., Hemphill v. New York, 380 F.3d 680, 688–90 (2d Cir. 2004). See also

Turner v. Burnside, 541 F.3d 1077, 1085–86 (11th Cir. 2008); Ziemba v. Wezner, 366 F.3d 

161, 163–64 (2d Cir. 2003). In addition, exhaustion is not required where administrative 

remedies are unavailable to an inmate for various reasons beyond the prisoner’s control. 

Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010); Nunez v. Duncan, 591 F.3d 1217, 1224–

26 (9th Cir. 2010); Giano v. Goard, 380 F.3d 670, 677 (2d Cir. 2004).

1390. Woodford, 548 U.S. at 101.

1391. 549 U.S. 199 (2007).

1392. Id. at 218.

1393. Id. at 219.

1394. Id. at 223.

1395. Pavey v. Conley, 544 F.3d 739, 741–42 (7th Cir. 2008), cert. denied, 129 S. Ct. 1620 

(2009). See also Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011) (“Matters of judicial administration often require district judges to decide factual disputes that are not bound up 

with the merits of the underlying dispute.”); Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 

2010) (dictum); Dillon v. Rogers, 596 F.3d 260, 271 (5th Cir. 2010) (judge may resolve any 

factual issues pertaining to exhaustion, but “when courts rule on exhaustion on the basis 

of evidence beyond the pleadings, the non-moving party should be granted the protections 

of [the] Rule 56” summary judgment procedures); Bryan v. Rich, 530 F.3d 1368, 1373–76 

(11th Cir.), cert. denied, 129 S. Ct. 733 (2008).

1396. Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009); Ford v. Johnson, 362 

F.3d 395, 401 (7th Cir. 2004); Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1212–13 (10th 

Cir. 2003); McKinney v. Carey, 311 F.3d 1198, 1200–01 (9th Cir. 2002); Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001); Brown v. Tombs, 139 F.3d 1102, 1104 (6th Cir.), 

cert. denied, 523 U.S. 833 (1998). See also Burrell v. Powers, 431 F.3d 282, 285 (7th Cir. 2005); 

Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002).

1397. 487 U.S. 131 (1988).

1398. Patsy v. Bd. of Regents, 457 U.S. 496 (1982).
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1399. 473 U.S. 172 (1985).

1400. Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001).

1401. The Supreme Court has described this ripeness as “prudential” rather than “jurisdictional.” Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733–34 (1997). 

1402. San Remo Hotel v. San Francisco, 545 U.S. 323, 337–38 (2005).

1403. See Knutson v. City of Fargo, 600 F.3d 992, 996–99 (8th Cir.) (preclusion barred 

plaintiffs’ takings claim), cert. denied, 131 S. Ct. 357 (2010); Agripost, LLC v. Miami-Dade 

Cnty., 525 F.3d 1049, 1052 (11th Cir. 2008) (state court decision precluded § 1983 takings 

claim), cert. denied, 129 S. Ct. 1668 (2009); Trafalgar Corp. v. Miami Bd. of Comm’rs, 519 

F.3d 285, 287–88 (6th Cir. 2008) (state court rejection of regulatory takings claim for just 

compensation precluded relitigation of that claim in federal court).

Chapter 18: Preclusion Defenses, p. 169

1404. San Remo Hotel v. San Francisco, 545 U.S. 323, 337–38 (2005); Migra v. Warren 

City Sch. Dist., 465 U.S. 75, 81 (1984); Allen v. McCurry, 449 U.S. 90, 94–95 (1980). See also

Haring v. Prosise, 462 U.S. 306, 313–14 (1983).

1405. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 480–81 (1982); Allen, 449 U.S. at 95.

1406. Allen, 449 U.S. at 103–04.

1407. San Remo Hotel, 545 U.S. at 337–38. See supra Chapter 17, § V (Ripeness).

1408. 428 U.S. 465 (1976). 

1409. Allen, 449 U.S. at 103–04.

1410. Migra v. Warren City Sch. Dist., 465 U.S. 75, 83–85 (1984).

1411. San Remo Hotel, 545 U.S. at 335.

1412. 478 U.S. 788 (1986).

1413. Id. at 799 (quoting United States v. Utah Constr. Mining Co., 384 U.S. 394, 422 

(1966)).

1414. 466 U.S. 284 (1984).

1415. 556 U.S. 247 (2009).

1416. Id. at 263.

Chapter 19: Statute of Limitations, p. 171

1417. Because there is no federal survivorship law for § 1983 claims, § 1988(a) requires 

federal courts to borrow state survivorship policy, so long as the state policy is not inconsistent with the policies of § 1983. See infra Chapter 20. However, § 1988(a) does not allow 

federal courts to incorporate an entire state cause of action into the § 1983 action. Moor 

v. Cnty. of Alameda, 411 U.S. 693, 703–04 (1973) (“we do not believe that section [1988], 

without more, was meant to authorize the wholesale importation into federal law of state 

causes of action”); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 n.66 (1978) (“42 U.S.C. 

§ 1988 cannot be used to create a federal cause of action where § 1983 does not otherwise 

provide one”).

1418. 471 U.S. 261 (1985).

1419. See Burnett v. Grattan, 468 U.S. 42, 48–50 (1984).

1420. Owens v. Okure, 488 U.S. 235, 236 (1989). A state-by-state table of limitations 

periods in § 1983 actions is set forth in 1B Martin A. Schwartz, Section 1983 Litigation: 
Notes

291

Claims and Defenses § 12.02[B] (4th ed. 2014). Even when a state, like Illinois, has a specific 

limitations period for claimed failures to protect from childhood sexual abuse, the governing § 1983 limitations period is the state’s general personal injury period. Woods v. Ill. Dep’t 

of Children & Family Servs., 710 F.3d 762 (7th Cir. 2013) (Illinois two-year limitations 

period, not Illinois Childhood Sexual Abuse Act twenty-year period, governs § 1983 actions 

in Illinois). 

1421. “Congress did not intend Rule 15(c) be so broad as to allow an amended pleading 

to add an entirely new claim based on a different set of facts.” Dean v. United States, 278 

F.3d 1218, 1221 (11th Cir. 2002).

1422. Fed. R. Civ. P. 15(c)(3)(B).

1423. See Advisory Committee note to 1991 amendment to Fed. R. Civ. P. 15. See, e.g., 

Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013).

1424. 130 S. Ct. 2485 (2010).

1425. Fed. R. Civ. P. 15(c)(1)(ii)(C) (emphasis added).

1426. Krupski, 130 S. Ct. at 2490.

1427. Id. at 2493–94. 

1428. Id. at 2494 (quoting Black’s Law Dictionary 1092 (9th ed. 2009)). 

1429. Id.

1430. The Court in Krupski found that its reading of Rule 15(c)(1)(C) was consistent 

with Congress’s historical reason for adding that rule in 1966. Individuals filing suits pertaining to Social Security benefits often failed to name as a party defendant the party identified in the statute as the proper defendant—the current secretary of what was then the 

Department of Health, Education, and Welfare—and named instead the United States, or 

the Department of HEW, or the nonexistent “Federal Security Administration,” or a recently retired secretary. By the time these plaintiffs discovered their mistakes, the limitations 

period may have expired. 

1431. Garrett v. Fleming, 362 F.3d 692, 696–97 (10th Cir. 2004); Wayne v. Jarvis, 197 

F.3d 1098, 1102–04 (11th Cir. 1999), cert. denied, 529 U.S. 1115 (2000); Jacobsen v. Osborne, 

133 F.3d 315, 320 (5th Cir. 1998); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.), cert. denied, 

519 U.S. 821 (1996); Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468 (2d Cir. 1995), 

modified, 74 F.3d 1366 (2d Cir. 1996); Worthington v. Wilson, 8 F.3d 1253, 1256–57 (7th 

Cir. 1993).

1432. But see, e.g., Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) (relation back 

applied under “more forgiving” New York state law); Singletary v. Pa. Dep’t of Corr., 266 

F.3d 186, 194–95 (3d Cir. 2001) (rejecting lack-of-mistake rationale, but denying relation 

back because newly named official had not received notice of action within requisite time 

period); see also Solivan v. Dart, 897 F. Supp. 2d 694, 701–02 (N.D. Ill. 2012) (relying on 

Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485 (2010)).

1433. Wallace v. Kato, 549 U.S. 384, 388 (2007).

1434. See, e.g., Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1st Cir. 1995); Harris v. 

Hegmann, 198 F.3d 153, 157 (5th Cir. 1999).

1435. Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991). See also Wallace v. Kato, 

549 U.S. 384, 391 (2007) (claim accrues when wrongful act results in damages even if full 

extent of damages is not then known or predictable); United States v. Kubrick, 444 U.S. 
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111, 121–22 (1979) (non-§ 1983) (patient’s medical malpractice claim accrued when he 

was “aware of his injury and its cause”; accrual should not be further delayed until plaintiff 

learns of his legal rights regarding claim).

1436. 549 U.S. 384 (2007).

1437. Id. at 388 (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. 

Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997), in turn quoting Rawlings v. Ray, 312 U.S. 96, 

98 (1941)).

1438. See, e.g., Bishop v. Children’s Ctr. for Developmental Enrichment, 618 F.3d 533 

(6th Cir. 2010); Cao v. Puerto Rico, 525 F.3d 112 (1st Cir. 2008) (§ 1983 claim accrues when 

plaintiff knew or should have known of her injury); Edison v. Tenn. Dep’t of Children’s 

Servs., 510 F.3d 631 (6th Cir. 2007).

1439. 512 U.S. 477 (1994). See supra Chapter 17, § II.

1440. Id. at 489–90.

1441. Cnty. of Riverside v. McLaughlin, 500 U.S. 44 (1991); Gerstein v. Pugh, 420 U.S. 

103 (1975).

1442. Wallace, 549 U.S. at 391–92.

1443. Id. at 388 (emphasis added).

1444. Id. (emphasis added).

1445. Id. at 389.

1446. Id.

1447. Id. at 391. The Court did not decide the damages issue.

1448. Id. at 390. The Court did not resolve whether this damages principle governs damages for a § 1983 false arrest claim. Because Wallace did not assert a § 1983 malicious prosecution claim, the Court did not analyze whether such a claim would have been cognizable.

1449. Wallace, 549 U.S. at 393. The Court said that if a § 1983 Fourth Amendment false 

arrest claim is filed during the pendency of the criminal prosecution, which may be necessary to comply with the § 1983 limitations period, the federal court may stay the § 1983 

action under one of the abstention doctrines. “If the plaintiff is ultimately convicted, and 

if the stayed suit would impugn that conviction, Heck will require dismissal; otherwise, 

the civil action will proceed, absent some other bar to suit.” Wallace, 549 U.S. at 393–94 

(citations omitted). 

1450. See generally 1B Schwartz, supra note 1420, § 12.039[B], pp. 12–42.

1451. Chardon v. Fernandez, 454 U.S. 6, 8 (1981).

1452. See, e.g., Pike v. City of Mission, 731 F.2d 655, 660 (10th Cir. 1984) (en banc) 

(holding “a plaintiff may not use the continuing violation theory to challenge discrete actions that occurred outside the limitations period even though the impact of the acts continues to be felt”).

1453. 536 U.S. 101 (2002).

1454. See, e.g., Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1036 n.18 (7th 

Cir. 2003); Carpinteria Valley Farms, Ltd. v. Cnty. of Santa Barbara, 344 F.3d 822, 828–29 

(9th Cir. 2003).

1455. 549 U.S. 384 (2007).

1456. Id. at 394 (citing Hardin v. Straub, 490 U.S. 536, 538–39 (1989); Bd. of Regents 

of Univ. of N.Y. v. Tomanio, 446 U.S. 478, 484–86 (1980)). A federal court will not borrow 
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a state tolling rule if it is inconsistent with the policies of § 1983. See 1B Schwartz, supra

note 1420, § 12.05. When an issue of state tolling law is unclear, a federal court may, in 

accordance with a state certification procedure, certify the issue to the highest court in the 

state. See Garza v. Burnett, 672 F.3d 1217, 1221–22 (10th Cir. 2012) (court certified unclear 

question of Utah equitable tolling law to Utah Supreme Court).

1457. It is important to not confuse equitable tolling with equitable estoppel. “‘[E]quitable 

tolling applies when the plaintiff is unaware of his cause of action, while equitable estoppel 

applies when a plaintiff who knows of his cause of action reasonably relies on the defendant’s 

statements or conduct in failing to bring suit.’” Estate of Amaro v. City of Oakland, 653 F.3d 

808, 814 (9th Cir. 2011) (citation omitted).

1458. Wallace, 549 U.S. at 396.

Chapter 20: Survivorship and Wrongful Death, p. 177

1459. 436 U.S. 584 (1978).

1460. Id. at 590. When applying state survival law, a federal court must analogize the 

§ 1983 claim to the most analogous state law claims. Benz v. City of Kendallville, 577 F.3d 

776, 779 (7th Cir. 2009).

1461. Robertson, 436 U.S. at 591.

1462. Id. at 591–93. See, e.g., Banks v. Yokemick, 177 F. Supp. 2d 239, 249–50 (S.D.N.Y. 

2001) (New York survivorship law, which denies recovery for loss of enjoyment of life, is 

inconsistent with § 1983 policies of compensation and deterrence).

1463. Robertson, 436 U.S. at 591–93. In Estate of Gilliam v. City of Prattville, 639 F.3d 

1041 (11th Cir. 2011), the court held that Alabama survivorship law, under which unfiled 

personal injury claims do not survive the death of an injured party, is not inconsistent with 

the policies of § 1983. There was no evidence that defendant-officers’ use of force caused 

decedent’s death, and Alabama law applied uniformly and did not target § 1983 claims.

In the vast majority of cases, applying Alabama law through § 1988(a) will compensate the 

constitutionally injured and impose liability on those state officials who violate the Constitution. First, when an injured party actually files a § 1983 action and later dies, that action will 

survive death. . . . Second, when a constitutional violation actually causes the injured party’s 

death, a § 1983 claim can be asserted through the Alabama wrongful death statute. . . .

Id. at 1047.

1464. Robertson, 436 U.S. at 594. See, e.g., Chaudhry v. City of L.A., 751 F.3d 1096, 

1103–05 (9th Cir. 2014) (California law denying recovery for decedent’s pre-death pain and 

suffering inconsistent with § 1983’s deterrence policies).

1465. See, e.g., Carringer v. Rodgers, 331 F.3d 844, 850 n.9 (11th Cir. 2003) (“right to 

wrongful death recovery under § 1983 has generated considerable debate amongst our sister circuits”).

1466. See, e.g., Brazier v. Cherry, 293 F.2d 401, 404–06 (5th Cir. 1961).

1467. See, e.g., Trujillo v. Bd. of Cnty. Comm’rs, 768 F.2d 1186, 1189–90 (10th Cir. 1985).

1468. See Steven H. Steinglass, Wrongful Death Actions and Section 1983, 60 Ind. L.J. 559 

(1985). The various § 1983 wrongful death theories are discussed in 1B Martin A. Schwartz, 

Section 1983 Litigation: Claims and Defenses §§ 13.03–13.07 (4th ed. 2014).

1469. 28 U.S.C. § 1367. See supra Chapter 1.
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Chapter 21: Abstention Doctrines, p. 178

1470. See, e.g., Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013); Colo. River 

Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).

1471. Colorado River, 424 U.S. at 813.

1472. R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).

1473. Younger v. Harris, 401 U.S. 37 (1971).

1474. Colorado River, 424 U.S. 800.

1475. Burford v. Sun Oil Co., 319 U.S. 315 (1943).

1476. 28 U.S.C. § 1341 (2006).

1477. 312 U.S. 496 (1941).

1478. Harris Cnty. Comm’rs Court v. Moore, 420 U.S. 77, 83 (1975) (interpreting Pullman). See, e.g., Casiano-Montanez v. State Ins. Fund Corp., 707 F.3d 124 (1st Cir. 2013).

1479. Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 512 (1972).

1480. 520 U.S. 43 (1997).

1481. Id. at 75–76.

1482. England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411, 415–16 (1964).

1483. Id. at 421–22.

1484. 375 U.S. 411 (1964).

1485. Id. at 417.

1486. Id. at 421–22.

1487. Id. at 419. If a party elects to forgo the right to return to federal court, the Supreme Court has held that, even in § 1983 cases, the sole fact that the state court’s decision 

may have been erroneous will not be sufficient to lift the preclusion bar to relitigation of 

federal issues decided after a full and fair hearing in state court. Allen v. McCurry, 449 U.S. 

90, 101 (1980).

1488. Harrison v. NAACP, 360 U.S. 167, 177 (1959).

1489. 401 U.S. 37 (1971).

1490. Id. See also Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987) (federal court may not 

interfere with enforcement of state civil judgment); Moore v. Sims, 442 U.S. 415 (1979) 

(child abuse proceedings); Trainor v. Hernandez, 431 U.S. 434 (1977) (attachment of welfare benefits allegedly obtained by fraud); Juidice v. Vail, 430 U.S. 327 (1977) (civil contempt proceeding); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) (quasi-criminal nuisance 

proceeding to enjoin allegedly obscene movie).

Removed Actions: The mere fact that a state suit was removed to federal court does not 

justify Younger abstention. Vill. of DePue v. Exxon Mobil Corp., 537 F.3d 775, 783 (7th Cir. 

2008). 

1491. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 

(1982).

1492. 401 U.S. 66 (1971). 

1493. Id. at 73. In Steffel v. Thompson, 415 U.S. 452 (1974), the Court addressed the 

issue of the availability of declaratory relief when no state criminal prosecution is pending. 

Noting that the relevant principles of equity, comity, and federalism carry little force in the 

absence of a pending state proceeding, the Court held that “federal declaratory relief is not 

precluded when no state prosecution is pending and a federal plaintiff demonstrates a gen-
Notes

295

uine threat of enforcement of a disputed state criminal statute.” Steffel, 415 U.S. at 475. The 

genuine threat of enforcement would give the plaintiff standing to seek prospective relief. 

See supra Chapter 2. The Court’s decision in Steffel, however, must be read in conjunction 

with its subsequent decision in Hicks v. Miranda, 422 U.S. 332 (1975), holding that where 

state criminal proceedings are commenced against a federal plaintiff after the federal complaint has been filed, but “before any proceedings of substance on the merits have taken 

place in the federal court,” the Younger doctrine applies “in full force.” Hicks, 422 U.S. at 349.

The Court has held that the granting of preliminary injunctive relief (see Doran v. Salem Inn, Inc., 422 U.S. 922, 927–28 (1975)) or permanent injunctive relief (see Wooley v. 

Maynard, 430 U.S. 705, 709–10 (1977)) is not necessarily barred by Younger principles when 

no criminal proceeding is pending.

1494. 484 U.S. 193 (1988).

1495. Id. at 202. Accord Gakuba v. O’Brien, 711 F.3d 751, 753 (7th Cir. 2013).

1496. See Wallace v. Kato, 549 U.S. 384, 393–94 (2007). See also Heck v. Humphrey, 

512 U.S. 477 (1994). “[I]f a state criminal defendant brings a federal civil-rights lawsuit 

during the pendency of his criminal trial, appeal, or state habeas action, abstention may be 

an appropriate response to the parallel state-court proceedings” (citing Colo. River Water 

Conservation Dist. v. United States, 424 U.S. 800 (1976)). Heck, 512 U.S. at 487 n.8. Heck

held that when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of 

his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff 

can demonstrate that the conviction or sentence has already been invalidated. Id. at 486–87. 

See supra Chapter 17. The Heck doctrine does not pertain to pending criminal prosecutions, 

but to criminal prosecutions that culminated in a conviction.

1497. 420 U.S. 592 (1975).

1498. Id. at 604. In Moore v. Sims, 442 U.S. 415, 423 (1979), the Court treated the case as 

governed by Huffman because the state was a party to the state proceedings in question, and 

the temporary removal of a child in a child abuse context was in aid of and closely related 

to enforcement of criminal statutes.

1499. Huffman, 420 U.S. at 607. In Trainor v. Hernandez, 431 U.S. 434, 444 (1977), the 

Court held that the principles of Younger and Huffman were broad enough to apply to 

interference by a federal court with ongoing civil proceedings to attach welfare benefits 

allegedly obtained by fraud “brought by the State in its sovereign capacity” to vindicate 

important state interest in preventing welfare fraud. Id. at 444. See also Moore, 442 U.S. 415 

(state has important state interest in child abuse proceedings); Juidice v. Vail, 430 U.S. 327, 

335 (1977) (holding principles of “comity” and “federalism” applied to case where state 

was not party, but where state’s judicial contempt process was involved, and its interest in 

contempt process is of “sufficiently great import to require application of the principles 

of Younger”); Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 5–10, 13–14 & n.12 (1987) (reversing lower court’s granting of federal court injunction against state court requirement that 

Texaco post bond in excess of $13 billion to prevent execution of judgment against it while 

appeal was pursued; holding Younger rationale applied to this civil proceeding, observing 

state’s interest in protecting “the authority of the judicial system, so that its orders and 

judgments are not rendered nugatory”). Cf. New Orleans Pub. Serv., Inc. v. Council of New 
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Orleans, 491 U.S. 350, 368 (1989) (holding Younger abstention does not apply to state judicial proceedings “reviewing legislative or executive action”).

1500. 457 U.S. 423 (1982). In Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013), 

the Supreme Court stated that Younger abstention is limited to (1) ongoing criminal prosecutions, (2) civil enforcement proceedings, and (3) civil proceedings in furtherance of the 

state courts’ ability to perform their judicial functions. The Court held that Younger did 

not apply to administrative proceedings invoked by a private party to settle a dispute with 

another private party.

1501. Middlesex Cnty., 457 U.S. at 432.

1502. 477 U.S. 619 (1986).

1503. In Ohio Civil Rights, the Court emphasized that the application of Younger to 

pending administrative proceedings is fully consistent with the rule that litigants need not 

exhaust administrative remedies before they can bring a § 1983 suit in federal court (see

Patsy v. Bd. of Regents, 457 U.S. 496 (1982)), because “the administrative proceedings here 

are coercive rather than remedial[;] began before any substantial advancement in the federal action took place[;] and involve an important state interest.” Ohio Civil Rights, 477 

U.S. at 627–28 n.2. See also Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 518–23 

(1st Cir. 2009) (Younger-Dayton abstention inapplicable because, inter alia, administrative 

proceedings were remedial proceedings initiated by federal plaintiffs, not coercive proceedings initiated by state); Brown v. Day, 555 F.3d 882, 890–93 (10th Cir. 2009) (same); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 260 (1st Cir. 1987) (Younger-Dayton abstention inapplicable because administrative proceeding initiated by federal court plaintiff was 

remedial rather than coercive).

1504. 134 S. Ct. 584 (2013).

1505. Id. at 588, 591.

1506. Id. at 593.

1507. The Court, in Sprint Communications, said that while in Dayton Christian Schools

it referenced a distinction between “coercive” and “remedial” state proceedings, it did not 

find this “inquiry necessary or inevitably helpful, given the susceptibility of the designations to manipulation.” Sprint Commc’ns, 134 S. Ct. at 593 n.6.

1508. Id. at 588. See also ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127 (3d Cir. 2014) 

(applying Sprint Commc’ns).

1509. See, e.g., Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975); Perez v. Ledesma, 401 

U.S. 82, 85 (1971). 

1510. “A federal court should assume that state procedures will afford an adequate 

remedy, in the absence of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco 

Inc., 481 U.S. 1, 14–15 (1987). Therefore, the federal plaintiff bears the burden of showing that state procedural law barred presentation of her constitutional claim. Id. at 14; 

Moore v. Sims, 442 U.S. 415, 432 (1979) (plaintiffs failed to show that state procedural law 

barred presentation of their claims); Nivens v. Gilchrist, 444 F.3d 237, 243 (4th Cir. 2006) 

(critical issue is whether state law allows federal court plaintiff to raise her federal claim 

in state court, not whether state court agrees with claim); 31 Foster Children v. Bush, 329 

F.3d 1255, 1279 (11th Cir. 2003). See, e.g., Gibson v. Berryhill, 411 U.S. 564, 578–79 (1973) 
Notes

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(Younger abstention inapplicable because state board was incompetent by reason of bias 

to adjudicate issues before it).

 Another exception recognized by the Supreme Court, but very rarely invoked, is a case 

in which the contested state statute is “flagrantly and patently violative of express constitutional provisions in every clause, sentence and paragraph, and in whatever manner and 

against whomever an effort was made to apply it.” Younger, 401 U.S. at 53–54 (quoting 

Watson v. Buck, 313 U.S. 389, 402 (1941)).

1511. 424 U.S. 800 (1976).

1512. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983).

1513. Id. at 26.

1514. Colorado River, 424 U.S. at 806.

1515. Id. at 813–17.

1516. Id. at 817 (quoting Kerotest Mfg. Co. v. C-O Two Fire Equip. Co., 342 U.S. 180, 

183 (1952)).

1517. Id. (citing McClellan v. Carland, 217 U.S. 268, 282 (1910)).

“Claim Splitting”: The Second Circuit held that the district court erred in invoking the 

doctrine against “claim splitting” to dismiss the § 1983 suit because of the pendency of state 

court proceedings raising state law claims arising out of the same transactions as the federal 

suit. Whether dismissal is proper in these circumstances depends on the application of 

Colorado River abstention. Kanciper v. Suffolk Cnty. SPCA, 722 F.3d 88, 93 (2d Cir. 2013).

1518. Colorado River, 424 U.S. at 818.

1519. Id. (noting that no one factor is determinative and “only the clearest of justifications will warrant dismissal”).

1520. 460 U.S. 1 (1983). The case involved parallel state and federal proceedings addressing the issue of whether a contract between the parties was subject to arbitration.

1521. Id. at 25–26.

1522. Id. at 23. 

1523. Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 570 n.21 (1983). To safeguard 

against the running of the statute of limitations should the state litigation leave some issues 

unresolved, the preferable course would be to stay, rather than dismiss, the federal action.

1524. Wilton v. Seven Falls Co., 515 U.S. 277, 288 n.2 (1995).

1525. San Carlos Apache Tribe, 463 U.S. at 560.

1526. 515 U.S. 277 (1995).

1527. Id. at 281. The Court in Wilton found that the discretionary standard announced 

in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), was not supplanted by 

the “exceptional circumstances” test of Colorado River and Moses H. Cone. Wilton, 515 U.S. 

at 282–87. Brillhart, like Wilton, involved an insurer seeking a federal declaratory judgment 

of nonliability in the face of a state court coercive suit seeking coverage under the policy. 

Wilton, 515 U.S. at 282.

1528. Moses H. Cone, 460 U.S. at 10.

1529. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988).

1530. 319 U.S. 315 (1943).

1531. New Orleans Pub. Serv. Inc. v. Council of New Orleans, 491 U.S. 350, 361 (1989).

1532. Burford, 319 U.S. at 316–17.
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298

1533. Id. at 324–26.

1534. Id. at 332.

1535. Id. at 334. The Sixth Circuit held that Burford abstention applies only when the 

case implicated state policies, not local policies. Saginaw Hous. Comm’n v. Bannum, Inc., 

576 F.3d 620, 628 (6th Cir. 2009) (disagreeing with Pomponio v. Fauquier Cnty. Bd. of Supervisors, 21 F.3d 1319 (4th Cir. 1992)). 

1536. Burford, 319 U.S. at 333–34.

1537. 491 U.S. 350 (1989). NOPSI involved a refusal by the New Orleans City Council 

to allow NOPSI to get a rate increase to cover additional costs that had been allocated to it, 

along with other utility companies, by the Federal Energy Regulatory Commission for the 

Grand Gulf nuclear reactor.

1538. Id. at 362.

1539. Id.

1540. Id. at 361 (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 

800, 814 (1976)).

First Amendment Claims: A federal district court observed a “developing consensus 

among federal courts that Burford abstention is unwarranted where . . . plaintiffs bring First 

Amendment challenges to state laws or actions.” NAGE v. Mulligan, 849 F. Supp. 2d 167, 175 

(D. Mass. 2012) (citing courts of appeals cases).

1541. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 731 (1996).

1542. Id. at 730. Given the facts of the case before it, the Court in Quackenbush found 

it unnecessary to decide “whether a more limited abstention-based stay order would have 

been” appropriate. Id. at 731.

1543. See generally Akenbrandt v. Richards, 504 U.S. 689, 703 (1992).

1544. See Troxel v. Granville, 530 U.S. 57 (2000); Clark v. Jeter, 486 U.S. 456 (1988); Lehr 

v. Robertson, 463 U.S. 248 (1983); Pickett v. Brown, 462 U.S. 1 (1983); Mills v. Habluetzel, 

456 U.S. 91 (1982); Santosky v. Kramer, 455 U.S. 745 (1982); Lassiter v. Dep’t of Soc. Servs., 

452 U.S. 18 (1981); Little v. Streater, 452 U.S. 1 (1981); Caban v. Mohammed, 441 U.S. 380 

(1979); Orr v. Orr, 440 U.S. 268 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Smith 

v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977); Sosna v. Iowa, 419 

U.S. 393 (1975); Stanley v. Illinois, 405 U.S. 645 (1972). Given these decisions, it is hard 

to conclude that the domestic relations doctrine extends to all federal questions arising in 

the family law area. See Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984). The Supreme Court’s 

decision in Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502 (1982), that 

federal habeas corpus is not available to contest the involuntary termination of parental 

rights, is based on the fact that Congress did not intend that the federal habeas corpus statutes encompass child custody cases.

1545. 28 U.S.C. § 1341 (1996). See California v. Grace Brethren Church, 457 U.S. 393, 

408 (1982) (Tax Injunction Act applies to federal court suit for declaratory judgment that 

state tax policy is unconstitutional); Fair Assessment in Real Estate v. McNary, 454 U.S. 100 

(1981) (policies of § 1341 pertain to § 1983 claims for damages); Rosewell v. La Salle Nat’l 

Bank, 450 U.S. 503 (1981). See also Nat’l Private Truck Council, Inc. v. Okla. Tax Comm’n, 

515 U.S. 582 (1995) (policies of Tax Injunction Act pertain to state court § 1983 actions 
Notes

299

against state tax, and require state courts to refrain from granting prospective relief under 

§ 1983 when there is adequate state legal remedy).

1546. Folio v. City of Clarksburg, 134 F.3d 1211, 1214 (4th Cir. 1998) (citations omitted).

1547. 542 U.S. 88 (2004).

1548. 130 S. Ct. 2323 (2010).

1549. Id. at 2330.

1550. Id. at 2336.

Chapter 22: Monetary Relief, p. 187

1551. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986).

1552. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969).

1553. See also Hendrick v. Cooper, 589 F.3d 887, 893 (7th Cir. 2009) (In prisoner excessive force case, jury was instructed that compensatory damages can cover “pain and suffering, inconvenience, mental anguish, shock and discomfort, and loss of enjoyment of life,” 

that “[n]o evidence of the dollar value of physical or mental emotional pain and suffering 

. . . needs to be introduced,” and that “[t]here is no exact standard for setting the damages 

to be awarded on account of pain and suffering. You are to determine an amount that will 

fairly compensate the plaintiff for the injury he has sustained.”).

1554. 435 U.S. 247 (1978) (procedural due process claim).

1555. 477 U.S. 299 (1986) (First Amendment claim).

1556. Stachura, 477 U.S. at 308 n.11; Carey, 435 U.S. at 267. See also Corpus v. Bennett, 

430 F.3d 912, 916 (8th Cir. 2005) (“[O]ne dollar is recognized as an appropriate value for 

nominal damages.”). The Seventh Circuit held that nominal damages may be awarded even 

in a § 1983 excessive force case. Briggs v. Marshall, 93 F.3d 355, 359–60 (7th Cir. 1996). 

Accord Frizzell v. Szabo, 647 F.3d 698, 701–02 (7th Cir. 2011). A properly pleaded claim for 

nominal damages may avoid dismissal for mootness. Morgan v. Plano Indep. Sch. Dist., 

589 F.3d 740, 748 (5th Cir. 2009), cert. denied, 130 S. Ct. 3503 (2010); Dean v. Blumenthal, 

577 F.3d 60, 66 (2d Cir. 2009). Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 

(1997) (claim for nominal damages against state official in official capacity did not save case 

from mootness because § 1983 creates no remedy against a state).

1557. Carey, 435 U.S. at 264.

1558. Id. at 267.

1559. Id. at 254.

1560. Id. at 263–64 (mental and emotional distress actually caused by denial of procedural due process is compensable under § 1983).

1561. Stachura, 477 U.S. at 310.

1562. Id. at 310 n.13.

1563. Id. at 311 & 312 n.14.

1564. Id. at 310–11. In fact, it appears that presumed damages have rarely been awarded 

in § 1983 actions. 

1565. Roe v. Elyea, 631 F.3d 843, 864 (7th Cir. 2011) (citing Harris v. Kuba, 486 F.3d 

1010, 1014 (7th Cir. 2007)). 

1566. See Burke v. McDonald, 572 F.3d 51, 60 (1st Cir. 2009) (Holding, in a § 1983 

action, that the district court properly instructed the jury on compensatory damages “as 
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a matter of proximate cause. This approach to the issue is consistent with Supreme Court 

precedent emphasizing that liability under § 1983 flows against the defendant for all damages that are the ‘natural consequences of his actions.’” [Malley v. Briggs, 475 U.S. 335, 344 

n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)] .... “The district court’s 

instructions ... properly and clearly explained the concept of proximate causation. ...”).

1567. Cobige v. City of Chi., 651 F.3d 780, 782 (7th Cir. 2011) (citations omitted).

1568. Bender v. City of N.Y., 78 F.3d 787, 793–94 (2d Cir. 1996); Lewis v. Kendrick, 944 

F.2d 949, 954 (1st Cir. 1991); Gilmere v. City of Atlanta, 864 F.2d 734, 740–41 (11th Cir.), 

cert. denied, 493 U.S. 817 (1989).

1569. 4 Martin A. Schwartz, Section 1983 Litigation: Jury Instructions, Instruction 

18.05.3 (2d ed. 2014) (adapted from Bender v. City of N.Y., 78 F.3d 787, 794 n.5 (2d Cir. 

1996) (Newman, J.)). See, e.g., Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 313 (7th 

Cir.) (instructions should clearly inform jury “not to duplicate damages”), cert. denied, 131 

S. Ct. 643 (2010); Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010) (ruling district court did not err 

in failing to instruct jury that it is impermissible to award duplicative damages; no evidence 

of duplicative damages for false arrest and malicious prosecution).

The jury was instructed on the legal distinctions between the two claims. It assessed damages 

against all five defendants on the false arrest claim, but only against [two defendants] on the 

malicious prosecution claim. That verdict demonstrates that the jury understood that separate conduct and harms correspond to the distinct claims. Accordingly, the defendants have 

not demonstrated that they were prejudiced by the district court’s decision not to give their 

proposed duplication damages instruction.

Fox, 600 F.3d at 843 (citation omitted). See also Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009) (plaintiff’s First Amendment retaliation and Equal Protection claims did not overlap; assuming arguendo that they did overlap, jury’s award of 

damages did not violate rule against double recovery because verdict form called for one 

damages award on all of plaintiffs’ constitutional claims; district court instructed jury to 

compensate plaintiff’s injuries just once).

Specifically, the court instructed the jurors that they “must arrive at a sum of money that 

will justly, fairly and adequately compensate the plaintiffs for the actual pain, suffering and 

emotional distress [it] find[s] that they endured as a direct result of any constitutional deprivation, defamation, invasion of privacy or negligence.” It further explained that “[t]he damages that [it] award[s] must be fair compensation for all the plaintiffs damages, no more or 

no less.” Thus, even if the jury found that the same unlawful conduct and injury supported 

two theories of liability, there is no basis for assuming that the jury believed it was required to 

award plaintiffs a separate amount of damages for each claim.

Guillemard-Ginorio, 585 F.3d at 532–35. See also Button v. Maloney, 196 F.3d 24, 32–

33 (1st Cir. 1999) (describing different ways district courts could handle double recovery 

problem).

1570. See, e.g., Miller v. Lovett, 879 F.2d 1066, 1070–71 (2d Cir. 1989).

1571. McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000).

1572. Hill v. City of Pontotoc, 993 F.2d 422, 426–27 (5th Cir. 1993).

1573. 461 U.S. 30 (1983).
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1574. Punitive damages may also be based on “oppressive” conduct when the defendant 

misused authority or exploited the plaintiff’s weakness. Dang v. Cross, 422 F.3d 800, 809–11 

(9th Cir. 2005).

Right to Jury Trial: The Seventh Amendment guarantees the right to a jury trial on a 

claim for punitive damages. Jones v. UPS, Inc., 674 F.3d 1187, 1202–06 (10th Cir.) (non-

§ 1983), cert. denied, 133 S. Ct. 413 (2012).

1575. Powell v. Alexander, 391 F.3d 1, 19 (1st Cir. 2004).

1576. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 538–39 (1999).

1577. See, e.g., Cortes-Reyes v. Salas-Quintana, 608 F.3d 41, 53 (1st Cir. 2010) (upholding 

jury award of punitive damages even though district court awarded only nominal damages; 

noting, “jury may properly award punitive damages even if it awards no nominal or compensatory damages”); Campus-Orrego v. Rivera, 175 F.3d 89, 97 (1st Cir. 1999) (“[A]s a matter 

of federal law, a punitive damage award which responds to a finding of a constitutional 

breach may endure even though unaccompanied by an award of compensatory damages.” 

(footnote and citations omitted)); King v. Macri, 993 F.2d 294, 297–98 (2d Cir. 1993) (citing 

cases). See also Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2622 (2008) (non-§ 1983).

1578. See Cameron v. City of N.Y., 598 F.3d 50, 69 (2d Cir. 2010) (holding district court 

erred in not instructing jury on punitive damages; district court should instruct jury on 

punitive damages when plaintiff introduces some evidence defendant acted with notice or 

callous indifference). 

1579. Schaub v. Von Wald, 638 F.3d 905, 926 (8th Cir. 2011); Tapalian v. Tusino, 377 F.3d 

1, 8 (1st Cir. 2004); Mason v. Okla. Tpk. Auth., 182 F.3d 1212, 1214 (10th Cir. 1999); King v. 

Macri, 993 F.2d 294, 298 (2d Cir. 1993); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978). See 

also TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28 (1993) (noting that it is 

“well settled” that defendant’s net worth is factor typically considered in assessing punitive 

damages); Acevedo-Luis v. Pagan, 478 F.3d 35, 39 (1st Cir. 2007) (proper to instruct jury “it 

could consider the defendant’s financial worth in assessing punitive damages”).

1580. Alexander v. City of Milwaukee, 474 F.3d 437, 454–55 (7th Cir. 2007). 

1581. 453 U.S. 247 (1981).

1582. See supra Chapter 13.

1583. See supra Chapter 6.

1584. See Payne v. Jones, 711 F.3d 85, 96 (2d Cir. 2013).

1585. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).

1586. Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 30 (1st Cir. 2010). Nevertheless, 

in Mercado-Berrios the court evaluated the punitive damages award solely under common 

law standards, and found it excessive even under those standards. See also Payne, 711 F.3d 

at 96–97.

1587. Campbell, 538 U.S. at 416; BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996).

1588. Campbell, 538 U.S. at 416; Gore, 517 U.S. at 562. These three factors may also be 

considered under common-law review to determine whether an award of punitive damages 

is so high as to shock the judicial conscience. Payne v. Jones, 711 F.3d 85, 96–97 (2d Cir. 

2013).

1589. Campbell, 538 U.S. at 425.

1590. Id. at 419 (quoting Gore, 517 U.S. at 582).
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1591. 549 U.S. 346 (2007). 

1592. Id. at 355. 

1593. Id. at 379–80. 

1594. See, e.g., Tapalian, 377 F.3d at 8–9; Williams v. Kaufman Cnty., 352 F.3d 994, 1016 

(5th Cir. 2003); DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003); Bogle v. McClure, 332 F.3d 

1347, 1360 (11th Cir. 2003); Lee v. Edwards, 101 F.3d 805, 808–09 (2d Cir. 1996); Morgan 

v. Woessner, 997 F.2d 1244, 1256–57 (9th Cir. 1993), cert. dismissed, 510 U.S. 1033 (1994).

1595. 1B Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses, § 16.16[B] 

(4th ed 2014).

1596. 480 U.S. 386 (1985).

1597. See discussion in 1B Schwartz, supra note 1595, § 16.17.

1598. See, e.g., Allen v. City of L.A., 92 F.3d 842, 845–46 (9th Cir. 1996).

1599. See, e.g., Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085 (7th Cir. 1990).

1600. Fed. R. Evid. 408. See, e.g., Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994).

1601. See Martin A. Schwartz, Should Juries Be Informed that Municipality Will Indemnify for Constitutional Wrongdoing?, 86 Iowa L. Rev. 1209 (2001).

1602. 42 U.S.C. § 1997e(e) (2006). See, e.g., Al-Amin v. Smith, 637 F.3d 1192, 1199 n.9 

(11th Cir. 2011) (noting circuit split on issue, holding PLRA physical injury requirement, 

42 U.S.C. § 1997e(e), not limited to compensatory damages and applies also to punitive 

damages) (following Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc)); Hutchins v. 

McDaniels, 512 F.3d 193, 195–98 (5th Cir. 2007) (PLRA physical injury requirement pertains 

to all constitutional rights, but not to nominal or punitive damages); Zehner v. Trigg, 133 

F.3d 459, 464 (7th Cir. 1997) (upholding constitutionality of provision).

1603. 42 U.S.C. § 1997e(a) (2006). See supra Chapter 17.

1604. 42 U.S.C. § 1997e(d)(1)–(4) (2006). See 2 Martin A. Schwartz & John E. Kirklin, 

Section 1983 Litigation: Statutory Attorney’s Fees Ch. 1 (4th ed. 2014).

1605. 18 U.S.C. § 3626(a)(2) (2006).

1606. Id. § 3626(b)(2). See 1B Schwartz, supra note 1595, § 16.03[D]. 

1607. 131 S. Ct. 1910 (2011). 

1608. Id. at 1923.

1609. Id. at 1936.

1610. Id. at 1944.

Chapter 23: Attorneys’ Fees, p. 194

1611. See generally Awarding Attorneys’ Fees and Managing Fee Litigation (Federal Judicial Center 2d ed. 2005).

1612. 42 U.S.C. § 1988(b).

1613. Perdue v. Kenny A., 130 S. Ct. 1662, 1677 (2010). See also Fox v. Vice, 131 S. Ct. 

2205, 2213 (2011) (prevailing plaintiff in civil rights cases serves as “‘private attorney general’”) (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)).

1614. Maine v. Thiboutot, 448 U.S. 1, 11 (1980). See also Hudson v. Michigan, 547 U.S. 

586, 597 (2006) (“Since some civil-rights violations would yield damages too small to justify 

the expense of litigation, Congress has authorized attorney’s fees for civil-rights plaintiffs.”).
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1615. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Accord Fox, 131 S. Ct. at 2216; 

Webb v. Cnty. Bd. of Educ., 471 U.S. 234, 244 n.20 (1985); Blum v. Stenson, 465 U.S. 886, 

902 n.19 (1984).

1616. Doe v. Ward, 282 F. Supp. 2d 323, 329 n.4 (W.D. Pa. 2003) (principle that fees 

should not result in major litigation “is one of the emptiest phrases in our jurisprudence” 

because “fee questions most definitely constitute major litigation”).

1617. Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988). See also Divane v. Krull Elec. 

Co., 319 F.3d 307, 314 (7th Cir. 2003) (ERISA suit).

1618. Sys. Mgmt., Inc. v. Loiselle, 154 F. Supp. 2d 195, 207 (D. Mass. 2001) (Young, C.J.).

1619. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (citation omitted).

1620. Jenkins v. Missouri, 127 F.3d 709, 713–14 (8th Cir. 1997).

1621. See, e.g., Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 

2001) (awards to prevailing § 1983 plaintiffs are “virtually obligatory”).

1622. Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012).

1623. Aware Woman Clinic, Inc. v. Cocoa Beach, 629 F.2d 1146, 1149–50 (5th Cir. 1980).

1624. See, e.g., Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1301 (1st Cir. 1997).

1625. See, e.g., Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983).

1626. See Hall v. Borough of Roselle, 747 F.2d 838, 841–42 (3d Cir. 1984); Jordan v. U.S. 

Dep’t of Justice, 691 F.2d 514, 518 (D.C. Cir. 1982); Brown v. Stackler, 612 F.2d 1057, 1059 

(7th Cir. 1980).

1627. Fox v. Vice, 131 S. Ct. 2205, 2213 (2011); Hughes v. Rowe, 449 U.S. 5, 15 (1980); 

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978). See also Sullivan v. Sch. 

Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985) (no “hard and fast rules” for determining whether plaintiff’s claim was frivolous—courts may consider whether plaintiff 

established prima facie case; whether defendant offered to settle; and whether district court 

dismissed case before trial or after trial on merits). 

1628. Houston v. Norton, 215 F.3d 1172, 1174–75 (10th Cir. 2000).

1629. Dehertoghen v. City of Hemet, 159 F. App’x 775, 776 (9th Cir. 2005); Patton v. 

Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988).

1630. Fox, 131 S. Ct. 2205.

1631. Id. at 2216.

1632. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989); 

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

1633. Hewitt v. Helms, 482 U.S. 755, 763 (1987).

1634. Hanrahan v. Hampton, 446 U.S. 754, 757–59 (1980).

1635. Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). Accord Lefemine v. Wideman, 133 

S. Ct. 9, 11 (2012) (per curiam) (permanent injunction rendered plaintiff prevailing party).

1636. Farrar, 506 U.S. at 112–15.

1637. Id. at 120–25 (O’Connor, J., concurring).

1638. See, e.g., Aponte v. City of Chi., 728 F.3d 724, 727–28 (7th Cir. 2013); Gray v. Bostic, 720 F.3d 887, 893–99 (11th Cir. 2013); Zinna v. Congrove, 680 F.3d 1236, 1239 (10th Cir. 

2012); Mahach-Watkins v. Depee, 593 F.3d 1054, 1059–60 (9th Cir. 2010), cert. denied, 131 

S. Ct. 898 (2011); Jama v. Esmor Corr. Servs. 577 F.3d 169, 175–76 (3d Cir. 2009); Lippoldt 

v. Cole, 468 F.3d 1204, 1222 (10th Cir. 2006); Mercer v. Duke Univ., 401 F.3d 199, 203–04 
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(4th Cir. 2005); Muhammad v. Lockhart, 104 F.3d 1069, 1070 (8th Cir. 1997); Cabrera v. 

Jakabovitz, 24 F.3d 372, 393 (2d Cir.), cert. denied, 513 U.S. 876 (1994).

The Seventh Circuit held that “Farrar can apply . . . where the plaintiff received a monetary award that is more than a nominal $1 but ‘minimal’ relative to the amount sought.” 

Aponte v. City of Chi., 728 F.3d 724, 727–28 (7th Cir. 2013) (citations omitted).

1639. Maher v. Gagne, 448 U.S. 122, 127 (1980); Milwe v. Cavuoto, 653 F.2d 80, 84 (2d 

Cir. 1981).

1640. See, e.g., United States v. Washington, 813 F.2d 1020, 1024 (9th Cir. 1987), cert. 

denied, 485 U.S. 1034 (1988); Reel v. Ark. Dep’t of Corr., 672 F.2d 693, 697–98 (8th Cir. 

1982) (plaintiff prevailed on state tort claims, but district court rejected plaintiff’s § 1983 

claims as “insubstantial”).

1641. See 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Statutory 

Attorney’s Fees § 2.08[B] (4th ed. 2014). See, e.g., Vill. of Maineville v. Hamilton Twp. Bd. of 

Trs., 726 F.3d 762 (6th Cir. 2013); Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981).

1642. 461 U.S. 424 (1983).

1643. Id. at 436. Accord Farrar v. Hobby, 506 U.S. 103, 114 (1992).

1644. “[W]ork on an unsuccessful claim [based on different facts and different legal theories] cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’ 

The congressional intent to limit awards to prevailing parties requires that these unrelated 

claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be 

awarded for services on the unsuccessful claim.” Hensley, 461 U.S. at 435 (citation omitted).

1645. Id. at 440.

1646. 532 U.S. 598 (2001).

1647. Id. at 604. An accepted offer of judgment pursuant to Fed. R. Civ. P. 68 qualifies 

the plaintiff as a prevailing party. Grissom v. The Mills Corp., 549 F.3d 313 (4th Cir. 2008); 

Util. Automation 2000, Inc. v. Choctawhatchee Elec. Coop., Inc., 298 F.3d 1238 (11th Cir. 

2002); Walsh v. Boston Univ., 661 F. Supp. 2d 91 (D. Mass. 2009).

1648. Buckhannon, 532 U.S. at 604 n.7.

1649. See Palmetto Props., Inc. v. Cnty. of DuPage, 375 F.3d 542, 547 (7th Cir. 2004); 

N.Y. State Fed’n of Taxi Drivers, Inc. v. Westchester Cnty. Taxi & Limousine Comm’n, 272 

F.3d 154, 158 (2d Cir. 2001).

1650. See, e.g., Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715–18 (9th Cir. 2013) 

(preliminary injunction based on probability of success on merits established plaintiff prevailing party); Sole v. Wyner, 551 U.S. 74, 84–86 (2007) (preliminary injunction did not 

qualify plaintiff as prevailing party because final decision on merits was in favor of defendant); Coates v. Powell, 639 F.3d 471, 474–75 (8th Cir.), cert. denied, 132 S. Ct. 412 (2011); 

(defendants’ written offer to settle case for $450,000 accepted by plaintiff by email on eve of 

trial, which was not incorporated into judicial order, did not qualify plaintiff as prevailing 

party because there was no “judicial imprimatur” of settlement); Hutchinson v. Patrick, 636 

F.3d 1, 8–11 (1st Cir. 2011) (ADA) (class action settlement approved by district court, and 

district court’s retention of jurisdiction of case qualified plaintiffs as prevailing plaintiffs); La 

Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089–90 (9th 

Cir. 2010) (settlement over which district court retained jurisdiction qualified plaintiff as 

prevailing party); Prison Legal News v. Schwarzenegger, 608 F.3d 446, 451–52 (9th Cir. 2010) 
Notes

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(same); Walker v. Calumet City, 565 F.3d 1031, 1034–37 (7th Cir. 2009) (order of dismissal 

entered after city represented it would not enforce contested ordinance did not render plaintiff prevailing party because under was not substantially equivalent to current decree) (relying on T.O. v. LaGrange S.D. No. 1, 349 F.3d 469, 478 (7th Cir. 2003)); Roberson v. Giuliani, 

346 F.3d 75, 84 (2d Cir. 2003) (stipulation and order of discontinuance acknowledging 

parties’ settlement agreement and providing for retention of district court jurisdiction over 

settlement agreement for enforcement purposes carried “sufficient judicial sanction” to render plaintiffs prevailing parties); Toms v. Taft, 338 F.3d 519, 528–29 (6th Cir. 2003) (private 

settlement did not qualify plaintiffs as prevailing parties); Truesdell v. Phila. Hous. Auth., 290 

F.3d 159, 164–66 (3d Cir. 2002) (settlement incorporated in court order giving plaintiff right 

to seek judicial enforcement of settlement rendered plaintiff a prevailing party).

1651. Roberson, 346 F.3d at 78, 83. See also Lake Forest, 624 F.3d at 1089–90.

1652. Kay v. Ehrler, 499 U.S. 432, 437–38 (1991).

1653. Perdue v. Kenny A., 130 S. Ct. 1662, 1673 (2010) (“strong” presumption that lodestar method yields reasonable fee); Blum v. Stenson, 465 U.S. 886, 897 (1984) (lodestar normally provides reasonable fee); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“The most 

useful starting point for determining the amount of a reasonable fee is the amount of hours 

reasonably expended on the litigation multiplied by a reasonable hourly rate.”). See also Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany, 522 F.3d 182, 188, 190 

(2d Cir. 2008) (acknowledging Supreme Court has adopted lodestar method “in principle,” 

but adopting modified approach using reasonable hourly rate to determine “presumptively 

reasonable fee”). But see McDow v. Rosad, 657 F. Supp. 2d 463, 467 (S.D.N.Y. 2009) (how 

Arbor Hill “process substantially differs from the lodestar approach” is not obvious).

1654. Perdue, 130 S. Ct. at 1673. Perdue rejected the so-called twelve Johnson factors 

(Johnson v. Georgia Highway Express, Inc., 488 F.2d 717, 717–19 (5th Cir. 1974)) to compute a reasonable fee award because they gives district courts “‘unlimited discretion’” and 

“‘little guidance’” in determining a reasonable fee. Id. at 1672 (quoting Pennsylvania v. Del. 

Valley Citizens Council for Clear Air, 478 U.S. 546, 563 (1986)). By contrast,

the lodestar method produces an award that roughly approximates the fees that the prevailing 

attorney would have received if he or she had been representing a paying client who was 

billed by the hour in a comparable case . . . is readily administrable, . . . is ‘objective,’ . . . and 

thus cabins the discretion of trial judges, permits meaningful judicial review, and produces 

reasonably predictable results.

Id.

1655. Id. at 1674.

1656. Hensley, 461 U.S. at 430. See also Perdue, 130 S. Ct. at 1672 (“[A] ‘reasonable’ fee 

is a fee that is sufficient to induce a capable attorney to undertake the representation of a 

meritorious civil rights case.”) (citations omitted). Id. at 1674.

1657. Fox v. Vice, 131 S. Ct. 2205, 2217 (2011).

1658. Id. at 2216.

1659. Farbotko v. Clinton Cnty., 433 F.3d 204, 209 (2d Cir. 2005) (quoting Blum, 465 

U.S. at 896 n.11). Accord Smith v. Phila. Hous. Auth., 107 F.3d 223, 225 (3d Cir. 1997); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994).

1660. Blackman v. District of Columbia, 397 F. Supp. 2d 12, 14 (D.D.C. 2005). 
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1661. Ass’n for Retarded Citizens of Conn. Inc. v. Thorne, 68 F.3d 547, 554 (2d Cir. 

1995) (citing Miele v. N.Y. Teamsters Conf. Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 

1987)). Accord Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th Cir. 2006).

1662. Amato v. City of Saratoga Springs, 991 F. Supp. 62, 66 (N.D.N.Y. 1998). Accord Anderson v. Rochester-Genesee Reg’l Transp. Auth., 388 F. Supp. 2d 159, 167 (W.D.N.Y. 2005).

In Farbotko v. Clinton County, 433 F.3d 204 (2d Cir. 2005), the Second Circuit held 

that the district court erred in basing the hourly rates solely on the rates used in other 

cases in the federal district. A reasonable hourly rate must reflect the “prevailing market 

rate.” Farbotko, 433 F.3d at 208. “Recycling rates awarded in prior cases without considering 

whether they continue to prevail may create disparity between compensation available under § 1988(b) and compensation available in the marketplace. This undermines § 1988(b)’s 

central purpose of attracting competent counsel to public interest litigation.” Id. at 209. 

There must be a “case-specific inquiry into the prevailing market rates for counsel of similar experience and skill to the fee applicant’s counsel. This may . . . include judicial notice 

of rates awarded in prior cases and the court’s own familiarity with the rates prevailing in 

the district,” as well any “evidence proffered by the parties.” Id. A reasonable rate “is not 

ordinarily ascertained simply by reference to rates awarded in prior cases.” Id. at 208. The 

same rate should be used for both the trial and appellate courts. Rather than establish the 

appropriate rates itself, the Second Circuit found it preferable to remand the issue to the 

district court, which is “in closer proximity to and has greater experience with the relevant 

community whose prevailing market rate it is determining.” Id. at 210 (citations omitted).

1663. See, e.g., Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 175–77 (2d Cir. 2009). 

See also authorities cited in 2 Schwartz & Kirklin, supra note 1641, § 5.03.

1664. Simmons, 575 F.3d at 175.

1665. Id. at 176. 

1666. Missouri v. Jenkins, 491 U.S. 274, 280–84 (1989). Accord Richlin Sec. Serv. Co. v. 

Chertoff, 553 U.S. 571, 577–88 (2008) (Equal Access to Justice Act).

1667. In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989) (fee application must “include 

contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with supporting documents, if any”); Grendel’s Den, 

Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984) (“the absence of detailed contemporaneous 

time records, except in extraordinary circumstances, will call for a substantial reduction in 

any award or, in egregious cases, disallowance”).

1668. Bell v. United Princeton Props., Inc., 884 F.2d 713, 721 (3d Cir. 1989).

1669. Id. (quoting Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983)).

1670. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Gay Officers Action League v. 

Puerto Rico, 247 F.3d 288, 298–99 (1st Cir. 2001).

1671. Fox v. Vice, 131 S. Ct. 2205, 2216 (2011). 

1672. See, e.g., Binta B. v. Gordon, 710 F.3d 608 (6th Cir. 2013); Balla v. Idaho, 677 F.3d 

910 (9th Cir. 2012); Johnson v. City of Tulsa, 489 F.3d 1089 (10th Cir. 2007). But see Alliance 

to End Repression v. City of Chi., 356 F.3d 767 (7th Cir. 2004). 

1673. See, e.g., Anderson v. Rochester-Genesee Reg’l Transp. Auth., 388 F. Supp. 2d 159, 

167–69, 171 (W.D.N.Y. 2005) (court reduced rates of plaintiffs’ counsel by 20% because 
Notes

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plaintiffs’ counsel failed to exercise proper billing judgment and exclude excessive, redundant, or unnecessary hours).

1674. Perdue v. Kenny A., 130 S. Ct. 1662, 1673–74 (2010); Blum v. Stenson, 465 U.S. 886, 

897–98 (1984). See also Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006) (“only in 

rare circumstances should a court adjust the lodestar figure, as this figure is the presumptively accurate measure of reasonable fees”). “[A] fee applicant seeking an enhancement must 

produce ‘specific evidence’ that supports the award.” Perdue, 130 S. Ct. at 1673.

1675. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566 

(1986). See also Blum, 465 U.S. at 899 (“The ‘quality of representation’ . . . generally is reflected in the reasonable hourly rate. It, therefore, may justify an upward adjustment only 

in the rare case where the fee applicant offers specific evidence to show that the quality of 

service rendered was superior to that one reasonably should expect in light of the hourly 

rates charged and that the success was ‘exceptional.’”).

1676. Perdue, 130 S. Ct. at 1662; Hensley, 461 U.S. at 435. In Perdue, the Supreme Court 

collapsed “results obtained” and “superior attorney performance” into one factor, i.e., superior performance. Perdue, 130 S. Ct. at 1674. The Court, however, has “never sustained an 

enhancement of a lodestar amount for performance. . . .” Id. at 1673.

1677. Missouri v. Jenkins, 491 U.S. 274, 282–84 (1989). Accord Perdue, 130 S. Ct. at 

1675. The rationale for allowing an upward adjustment for delay of payment, or the use 

of current rates, is that “compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same 

dollar amount received reasonably promptly as the legal services are performed.” Id. at 283.

1678. City of Burlington v. Dague, 505 U.S. 557, 560–61 (1992). Accord Perdue, 130 S. 

Ct. at 1676.

1679. Perdue, 130 S. Ct. at 1673.

1680. 477 U.S. 561 (1986).

1681. Id. at 564–65.

1682. Id. at 575.

1683. Blanchard v. Bergeron, 489 U.S. 87, 92–94 (1989).

1684. Venegas v. Mitchell, 495 U.S. 82, 86–88 (1990).

1685. Webb v. Cnty. Bd. of Educ., 471 U.S. 234, 250 (1985). 

1686. W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 86–92 (1991). An amendment to § 1988 

authorized an award of expert witness fees only in actions under 42 U.S.C. § 1981 or 

§ 1981(a). 42 U.S.C. § 1988(c) (2006).

1687. Blum v. Stenson, 465 U.S. 886, 894–95 (1984). Accord Washington v. Seattle Sch. 

Dist. No. 1, 458 U.S. 457, 487 n.31 (1982).

1688. 209 U.S. 123 (1908). See supra Chapter 13.

1689. Hutto v. Finney, 437 U.S. 678, 690–92 (1978).

1690. Missouri v. Jenkins, 491 U.S. 274, 279–84 (1989).

1691. 473 U.S. 1 (1985).

1692. Id. at 8–11. See also Bogan v. City of Boston, 489 F.3d 417, 431 (1st Cir. 2007) 

(Rule 68 requires comparison between amount of offer at judgment, including “costs then 

accrued,” and damages recovered plus pre-offer fees actually awarded, not pre-offer fees 

requested by plaintiffs).
Section 1983 Litigation

308

1693. Marek, 473 U.S. at 6 (citation omitted). See also Barbour v. City of White Plains, 

700 F.3d 631, 633–34 (2d Cir. 2012); Lima v. Newark Police Dep’t, 658 F.3d 324, 330–31 (3d 

Cir. 2011).

1694. Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 1026–28 (9th Cir. 

2003) (non-§ 1983); Payne v. Milwaukee Cnty., 288 F.3d 1021, 1026–27 (7th Cir. 2002); 

Harbor Motor Co. v. Arnell Chevrolet-Geo, 265 F.3d 638, 645 (7th Cir. 2001) (non-§ 1983); 

O’Brien v. City of Greers Ferry, 873 F.2d 1115, 1120 (8th Cir. 1989); Crossman v. Marcoccio, 

806 F.2d 329, 334 (1st Cir. 1986), cert. denied, 481 U.S. 1029 (1987). Contra Jordan v. Time, 

Inc., 111 F.3d 102, 104 (11th Cir. 1997).

1695. 475 U.S. 717 (1986).

1696. Id. at 730–32 & n.19. Accord Venegas v. Mitchell, 495 U.S. 82, 87 (1990). See also

Astrue v. Ratliff, 130 S. Ct. 2321 (2010) (EAJA).

1697. Evans, 475 U.S. at 731–32.

1698. Perdue, 130 S. Ct. at 1676; Bogan, 489 F.3d at 431; Tutor-Saliba Corp. v. City of 

Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006) (following Chalmers v. Los Angeles, 795 F.2d 

1205 (9th Cir. 1986)); Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir. 2005).
309

Table of Cases (alphabetical)

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), p. 170; nn. 1415–16

31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), n. 1510

281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011), n. 801

Abbott v. Michigan, 474 F.3d 324 (6th Cir. 2007), n. 173

Abbott v. Sangamon County, 705 F.3d 706 (7th Cir. 2013), n. 433

Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005), n. 1207

Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005), n. 454

Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), nn. 397, 440

Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298 (11th 

Cir. 2005), n. 838

Acevedo-Luis v. Pagan, 478 F.3d 35 (1st Cir. 2007), n. 1579

Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013), n. 1214

Acosta v. Hill, 504 F.3d 1323 (9th Cir. 2007), n. 453

ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127 (3d Cir. 2014), n. 1508

A.D. v. California Highway Patrol, 712 F.3d 446 (9th Cir. 2013), n. 1322

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), nn. 141, 776

AE v. County of Tulare, 666 F.3d 631 (9th Cir. 2012), nn. 136, 1004

Agripost, LLC v. Miami-Dade County, 525 F.3d 1049 (11th Cir. 2008), n. 1403

Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051 (9th Cir. 2009), n. 240

Akenbrandt v. Richards, 504 U.S. 689 (1992), n. 1543

Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011), n. 1602

Alabama v. Pugh, 438 U.S. 781 (1978), n. 1054

Alabama v. White, 496 U.S. 325 (1990), n. 513

Albright v. Oliver, 510 U.S. 266 (1994), pp. 63–65; nn. 90, 320–23, 376, 382, 530–31, 

535–42

Alden v. Maine, 527 U.S. 706 (1994), n. 860

Aldini v. Johnson, 609 F.3d 858 (6th Cir. 2010), nn. 378, 382

Alexander v. City of Milwaukee, 474 F.3d 437 (7th Cir. 2007), n. 1580

Alexander v. Ieyoub, 62 F.3d 709 (5th Cir. 1995), n. 310

Alexander v. Sandoval, 532 U.S. 275 (2001), p. 80; nn. 730–31

Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000), n. 630

Allen v. City of Los Angeles, 92 F.3d 842 (9th Cir. 1996), n. 1598

Allen v. McCurry, 449 U.S. 90 (1980), nn. 1404–06, 1409, 1487

Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), nn. 441, 963

Allen v. Wright, 468 U.S. 737 (1984), n. 211

Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir. 2004), n. 1672

Allstate Insurance Co. v. West Virginia State Bar, 233 F.3d 813 (4th Cir. 2000), n. 174

Alvarado Aguilera v. Negron, 509 F.3d 50 (1st Cir. 2007), n. 114

Amaro, Estate of, v. City of Oakland, 653 F.3d 808 (9th Cir. 2011), n. 1457

Amato v. City of Saratoga Springs, 991 F. Supp. 62 (N.D.N.Y. 1998), n. 1662

Amato v. City of Saratoga Springs, 170 F.3d 311 (2d Cir. 1999), nn. 1029, 1037–38
Section 1983 Litigation

310

American Federation of Labor v. City of Miami, 637 F.3d 1178 (11th Cir. 2011), n. 879

American Federation of State, County & Municipal Employees v. Scott, 717 F.3d 851 (11th 

Cir. 2013), nn. 82, 517

American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999), nn. 734, 

745, 755, 760–01, 770

Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010), n. 1205

Amos, Estate of, v. City of Page, 257 F.3d 1086 (9th Cir. 2001), n. 367

Anderson v. Atlanta, 778 F.2d 678 (11th Cir. 1985), n. 1033

Anderson v. Creighton, 483 U.S. 635 (1987), p. 151; nn. 71, 1197, 1219, 1232–33, 1243, 

1253, 1266–69, 1276, 1298, 1301–02, 1307, 1316

Anderson v. Rochester-Genesee Regional Transportation Authority, 388 F. Supp. 2d 159 

(W.D.N.Y. 2005), nn. 1662, 1673

Andrew v. Clark, 561 F.3d 261 (4th Cir. 2009), n. 619

Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996), n. 1011

Andrews v. Hickman County, 700 F.3d 845 (6th Cir. 2012), nn. 1164, 1291

Anemone v. Metropolitan Transportation Authority, 410 F. Supp. 2d 255 (S.D.N.Y. 2006), 

n. 806

Antoine v. Byers & Anderson, 508 U.S. 429 (1993), n. 1111

Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002), n. 1051

Aponte v. City of Chicago, 728 F.3d 724 (7th Cir. 2013), n. 1638

Aponte Matos v. Toledo-Davila, 135 F.3d 182 (1st Cir. 1998), nn. 1007, 1011

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), nn. 1346–47

Applewhite v. Briber, 506 F.3d 181 (2d Cir. 2007), n. 1110

Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d 

Cir. 2008), n. 1653

Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996), n. 1091

Argyropoulos v. City of Alton, 539 F.3d 724 (7th Cir. 2008), n. 908

Arizona v. Gant, 556 U.S. 332 (2009), nn. 516, 1251

Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), nn. 1523, 1525

Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011), n. 211

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), p. 178; nn. 793, 1045, 1480–

81, 1556

Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987), n. 199

Arlington Heights, Village of, v. Metropolitan Housing Development Corp., 429 U.S. 25 

(1977), n. 86

Armijo v. Peterson, 601 F.3d 1065 (10th Cir. 2010), n. 517

Armstrong v. Asselin, 734 F.3d 984 (9th Cir. 2013), nn. 249, 1216, 1260

Armstrong v. Manzo, 380 U.S. 545 (1965), n. 300

Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), pp. 128, 148–49; nn. 71, 1086–87, 1197, 1201, 

1219, 1235, 1242–47, 1327, 1331–33

Ashcroft v. Iqbal, 556 U.S. 662 (2009), pp. 10, 13, 14, 16–21, 114–19, 153; nn. 41, 66–67, 95, 

115, 118–27, 131–32, 134, 138, 998, 1000–02, 1004–06, 1013–18, 1020–27, 1202, 1219, 

1283, 1285, 1287–90, 1296–98, 1343

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), p. 159; n. 1339
Cases (alphabetical)

311

Askew v. Sheriff of Cooks County, 568 F.3d 632 (7th Cir. 2009), n. 847

Askins v. Doe No. 1, 727 F.3d 248 (2d Cir. 2013), nn. 1034–35

Associacion de Trabajadores v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010), nn. 

1650–51

Association for Retarded Citizens of Connecticut Inc. v. Thorne, 68 F.3d 547 (2d Cir. 

1995), n. 1661

Astrue v. Ratliff, 130 S. Ct. 2321 (2010), n. 1696

Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996), n. 996

Atkin v. Johnson, 432 F. App’x 47 (3d Cir. 2011), n. 801

Atkinson v. City of Mountain View, 709 F.3d 1201 (8th Cir. 2013), n. 880

Atteberry v. Nocona General Hospital, 430 F.3d 245 (5th Cir. 2005), n. 1011

Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), n. 897

Austin v. Redford Township Police Department, 690 F.3d 490 (6th Cir. 2012), n. 433

Aware Woman Clinic, Inc. v. Cocoa Beach, 629 F.2d 1146 (5th Cir. 1980), n. 1623

Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992), n. 91

BK & SK v. New Hampshire Department of Health & Human Services, 814 F. Supp. 2d 59 

(D.N.H. 2011), n. 692

Baez v. Hennessy, 853 F.2d 73 (2d Cir. 1988), n. 916

Bailey v. United States, 133 S. Ct. 1031 (2013), n. 525

Baines v. Masiello, 288 F. Supp. 2d 376 (W.D.N.Y. 2003), n. 841

Balla v. Idaho, 677 F.3d 910 (9th Cir. 2012), n. 1672

Baker v. James T. Vaughn Correctional Center, 425 F. App’x 83 (3d Cir. 2011), n. 801

Baker v. McCollan, 443 U.S. 137 (1979), p. 33; nn. 90, 249, 253–54

Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), n. 1011

Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006), n. 1674

Banks v. Yokemick, 177 F. Supp. 2d 239 (S.D.N.Y. 2001), n. 1462

Barbour v. City of White Plains, 700 F.3d 631 (2d Cir. 2012), n. 1693

Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006), n. 1011

Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006), n. 641

Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), n. 1091

Barrett v. Harwood, 189 F.3d 297 (2d Cir. 1999), n. 783

Barrett v. Orange County, 194 F.3d 341 (2d Cir. 1999), n. 1033

Barrow v. Wethersfield Police Department, 66 F.3d 466 (2d Cir. 1995), n. 1431

Barry v. Barchi, 443 U.S. 55 (1979), n. 308

Barry v. Moran, 661 F.3d 696 (1st Cir. 2011), nn. 594–96

Bass v. Perrin, 170 F.3d 1312 (11th Cir. 1999), n. 285

Baxter v. Vigo County School Corp., 26 F.3d 728 (7th Cir. 1994), n. 91

Baze v. Rees, 128 S. Ct. 1520 (2008), n. 1365

Beacon Theatres v. Westover, 359 U.S. 500 (1959), n. 30

Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007), n. 543

Behrens v. Pelletier, 516 U.S. 299 (1996), p. 160; nn. 1195, 1293, 1303–04, 1341, 1344–45, 

1347–48

Bell v. Burson, 402 U.S. 535 (1971), n. 276

Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989), nn. 1668–69
Section 1983 Litigation

312

Bell v. Wolfish, 441 U.S. 520 (1979), pp. 58–60; nn. 244, 372, 407, 479, 490

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), pp. 13–21, 114, 117, 153; nn. 94, 

102–05, 107–09, 114, 133, 145, 999, 1000, 1003–04, 1019, 1284

Bender v. City of New York, 78 F.3d 787 (2d Cir. 1996), n. 1568

Bennett v. Goord, 343 F.3d 133 (2d Cir. 2003), n. 637

Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996), n. 989

Benz v. City of Kendallville, 577 F.3d 776 (7th Cir. 2009), n. 1460

Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012), n. 497

Beshers v. Harrison, 495 F.3d 1260 (11th Cir. 2007), n. 429

Best v. City of Portland, 554 F.3d 698 (7th Cir. 2009), n. 813

Bettencourt v. Board of Registration, 904 F.2d 772 (1st Cir. 1990), n. 1110

Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988), n. 76

Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995), n. 848

Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002), n. 435

Binay v. Bettendorf, 601 F.3d 640 (6th Cir. 2010), n. 527

Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008), n. 334

Binta B. v. Gordon, 710 F.3d 608 (6th Cir. 2013), n. 1672

Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16 (1st Cir. 2006), n. 1011

Bishop v. Children’s Center for Developmental Enrichment, 618 F.3d 533 (6th Cir. 2010), 

n. 1438

Bishop v. Hackel, 636 F.3d 757 (6th Cir. 2011), n. 405

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), pp. 7–18, 153; nn. 40, 44–45, 

116

Blackman v. District of Columbia, 397 F. Supp. 2d 12 (D.D.C. 2005), n. 1660

Blackman v. New York City Transit Authority, 491 F.3d 95 (2d Cir. 2007), n. 607

Blake v. City of New York, No. 05-Civ. 6652 (BSJ), 2007 U.S. Dist. LEXIS 49160 (S.D.N.Y. 

July 3, 2007), n. 453

Blanchard v. Bergeron, 489 U.S. 87 (1989), n. 1683

Blessing v. Freestone, 520 U.S. 329 (1997), p. 78; nn. 657–61, 693, 695–96, 702, 720

Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011), nn. 442, 527

Bliven v. Hunt, 579 F.3d 204 (2d Cir. 2009), n. 1091

Blum v. Stenson, 465 U.S. 886 (1984), nn. 18, 1615, 1653, 1674–75, 1687

Blum v. Yaretsky, 457 U.S. 991 (1982), nn. 754, 763, 768, 773, 775

BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), nn. 322, 1587–88, 1590

Board of County Commissioners v. Brown, 520 U.S. 397 (1997), p. 112; nn. 835–36, 868, 

870, 924, 983–94

Board of Education of Independent School District No. 92 Pottawatomie County v. Earls, 

536 U.S. 822 (2002), n. 516

Board of Regents v. Roth, 408 U.S. 564 (1972), pp. 33, 35; nn. 261–62, 272–73

Board of Regents of University of New York v. Tomanio, 446 U.S. 478 (1980), n. 1456

Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007), nn. 1692, 1698

Bogan v. City of Chicago, 644 F.3d 563 (7th Cir. 2011), n. 517

Bogan v. Scott-Harris, 523 U.S. 44 (1998), p. 141; nn. 1180–82, 1184–87

Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003), n. 1594
Cases (alphabetical)

313

Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006), n. 174

Bond v. United States, 529 U.S. 334 (2000), n. 516

Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982), n. 748

Bookman v. Shubzda, 945 F. Supp. 999 (N.D. Tex. 1996), n. 249

Booth v. Churner, 532 U.S. 731 (2001), p. 166; n. 1385

Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir. 1989), nn. 867, 925

Borges-Colon v. Roman Abreu, 438 F.3d 1 (1st Cir. 2006), n. 1203

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), n. 891

Boyd v. United States, 116 U.S. 616 (1886), p. 60; n. 493

Boykin v. Van Buren Township, 479 F.3d 444 (6th Cir. 2007), n. 783

Bradley v. Fisher, 80 U.S. 335 (1872), n. 1088

Brady v. Maryland, 373 U.S. 83 (1963), pp. 42, 93, 111; nn. 339, 833, 966, 1147

Brait Builders Corp. v. Commonwealth of Massachusetts, Division of Capital Asset 

Management, 644 F.3d 5 (1st Cir. 2011), n. 801

Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007), n. 618

Brandon v. Holt, 469 U.S. 464 (1985), nn. 838, 851

Branti v. Finkel, 445 U.S. 507 (1980), p. 68; nn. 585–87

Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), n. 1466

Brendelin v. California, 551 U.S. 249 (2007), n. 388

Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001), 

p. 85; nn. 734, 749–50, 784–85

Brewster v. Board of Education, 149 F.3d 971 (9th Cir. 1998), n. 627

Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009), n. 633

Briggs v. Marshall, 93 F.3d 355 (7th Cir. 1996), n. 1556

Brigham City v. Stuart, 547 U.S. 398 (2006), nn. 500, 516

Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), n. 1527

Briscoe v. LaHue, 460 U.S. 325 (1983), p. 139; nn. 1165–67

Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011), n. 406

Brookings v. Clunk, 389 F.3d 614 (6th Cir. 2004), n. 1091

Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996), n. 545

Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997), n. 285

Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010), n. 390

Brosseau v. Haugen, 543 U.S. 194 (2004), nn. 1197, 1219, 1232, 1275

Browder v. City of Moab, 427 F.3d 717 (10th Cir. 2005), n. 1698

Brower v. County of Inyo, 489 U.S. 593 (1989), nn. 383–84, 388

Brown v. Bowman, 668 F.3d 437 (7th Cir. 2012), n. 167

Brown v. California Department of Corrections, 554 F.3d 747 (9th Cir. 2009), n. 1123

Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009), n. 433

Brown v. Day, 555 F.3d 882 (10th Cir. 2009), n. 1503

Brown v. Hot, Sexy & Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995), n. 310

Brown v. Plata, 131 S. Ct. 1910 (2011), p. 192; nn. 556, 1607–10

Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980), n. 1626

Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012), n. 1322

Brown v. Tombs, 139 F.3d 1102 (6th Cir. 1998), n. 1396
Section 1983 Litigation

314

Brown v. Western Railway of Alabama, 338 U.S. 294 (1949), n. 202

Bryan v. McPherson, 630 F.3d 805 (9th Cir. 2010), n. 433

Bryan v. Rich, 530 F.3d 1368 (11th Cir. 2008), n. 1395

Buckhannon Board & Care Home v. West Virginia Department of Health & Human 

Resources, 532 U.S. 598 (2001), p. 197; nn. 1646–48

Buckley v. Fitzsimmons, 509 U.S. 259 (1993), pp. 134–36; nn. 1115, 1124–26, 1130, 1139–

43

Bulger v. United States Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995), n. 285

Bumper v. North Carolina, 391 U.S. 543 (1968), n. 516

Burford v. Sun Oil Co., 319 U.S. 315 (1943), pp. 178, 182, 184–85; nn. 1475, 1530, 1532–36

Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999), n. 860

Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994), n. 147

Burke v. McDonald, 572 F.3d 51 (1st Cir. 2009), n. 1566

Burke v. Town of Walpole, 405 F.3d 66 (1st Cir. 2005), n. 1223

Burlington, City of, v. Dague, 505 U.S. 557 (1992), n. 1678

Burnett v. Grattan, 468 U.S. 42 (1984), nn. 9, 1419

Burns v. County of King, 883 F.2d 819 (9th Cir. 1989), n. 144

Burns v. Reed, 500 U.S. 478 (1991), pp. 134, 136; nn. 1127, 1132–38

Burrell v. Powers, 431 F.3d 282 (7th Cir. 2005), n. 1396

Burt v. Abel, 585 F.2d 613 (4th Cir. 1978), n. 28

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), p. 83; n. 752

Buser v. Raymond, 476 F.3d 565 (8th Cir. 2007), n. 1110

Bush v. Lucas, 462 U.S. 367 (1983), p. 8; nn. 49–50

Bustos v. Martini Club, Inc., 599 F.3d 458 (5th Cir. 2010), nn. 151, 367

Button v. Maloney, 196 F.3d 24 (1st Cir. 1999), n. 1569

Butz v. Economou, 438 U.S. 478 (1978), p. 131; nn. 70, 1107–08

Caban v. Mohammed, 441 U.S. 380 (1979), n. 1544

Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), n. 1638

Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009), n. 1123

Calero-Colon v. Betancourt-Lebron, 68 F.3d 1 (1st Cir. 1995), n. 1434

California v. Carney, 471 U.S. 386 (1980), n. 516

California v. Ciraolo, 476 U.S. 207 (1986), n. 516

California v. Grace Brethren Church, 457 U.S. 393 (1982), n. 1545

California v. Greenwood, 486 U.S. 35 (1988), n. 516

California v. Hodari D., 499 U.S. 621 (1991), n. 387

Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1987), n. 516

Cameron v. City of New York, 598 F.3d 50 (2d Cir. 2010), n. 1578

Camilo-Robles v. Hoyos, 151 F.3d 1 (1st Cir. 1998), nn. 1011, 1223

Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995), n. 358

Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012), n. 174

Campbell v. City of Springboro, 700 F.3d 779 (6th Cir. 2012), n. 432

Campus-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999), n. 1577

Camreta v. Green, 131 S. Ct. 2020 (2011), nn. 1327, 1331

Canman v. Bonilla, 778 F. Supp. 2d 179 (D.P.R. 2011), n. 801
Cases (alphabetical)

315

Canton, City of, v. Harris, 489 U.S. 378 (1989), pp. 107–09, 111–02; nn. 835–36, 866, 870–

01, 946–50, 954–56, 959–61

Cao v. Puerto Rico, 525 F.3d 112 (1st Cir. 2008), n. 1438

Carey v. Piphus, 435 U.S. 247 (1978), pp. 187–88; nn. 1554, 1556–60

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009), n. 184

Carlson v. Green, 446 U.S. 14 (1980), pp. 7–11; nn. 47–48, 62, 78

Carnaby v. City of Houston, 636 F.3d 183 (5th Cir. 2011), nn. 429, 1028

Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012), n. 433

Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822 (9th Cir. 2003), 

n. 1454

Carr v. Deeds, 453 F.3d 593 (4th Cir. 2006), n. 487

Carr v. District of Columbia, 587 F.3d 401 (D.C. Cir. 2009), n. 497

Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003), n. 1465

Carroll v. United States, 267 U.S. 132 (1925), n. 516

Carswell v. Borough of Homestead, 381 F.3d 235 (3d Cir. 2004), n. 1322

Carter v. Morris, 164 F.3d 215 (4th Cir. 1999), nn. 1007, 1011

Carter v. Philadelphia, 181 F.3d 339 (3d Cir. 1999), n. 916

Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011), n. 872

Casiano-Montanez v. State Insurance Fund Corp., 707 F.3d 124 (1st Cir. 2013), n. 1478

Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003), n. 548

Castle Rock, Town of, v. Gonzales, 545 U.S. 748 (2005), nn. 280–81

Causey v. City of Bay City, 443 F.3d 524 (6th Cir. 2006), n. 1203

Cavanaugh v. Woods Cross City, 718 F.3d 1244 (10th Cir. 2013), n. 454

Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010), n. 433

Cefau v. Village of Elk Grove, 211 F.3d 416 (7th Cir. 2000), n. 248

Chambers v. Maroney, 399 U.S. 42 (1970), n. 516

Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016 (9th Cir. 2003), n. 1694

Chan v. Wodnicki, 67 F.3d 137 (7th Cir. 1995), n. 1347

Chandler v. Miller, 520 U.S. 305 (1997), n. 516

Chapman v. Houston Welfare Rights Organization, 441 U.S. 600 (1979), nn. 90, 152

Chappell v. Wallace, 462 U.S. 296 (1983), p. 8; n. 51

Chardon v. Fernandez, 454 U.S. 6 (1981), n. 1451

Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), n. 618

Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), n. 1464

Chauffers Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990), nn. 25–26

Chavez v. United States, 683 F.3d 1102 (9th Cir. 2012), n. 1028

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), n. 964

Chicago, City of, v. International College of Surgeons, 522 U.S. 156 (1997), p. 25; nn. 189, 

196

Chimel v. California, 395 U.S. 752 (1969), n. 516

Chin v. Bowen, 833 F.2d 21 (2d Cir. 1987), n. 76

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), n. 1627

Christiansen v. West Branch Community School District, 674 F.3d 927 (8th Cir. 2012), 

n. 1359
Section 1983 Litigation

316

Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999), n. 898

Chudacoff v. University Medical Center, 649 F.3d 1143 (9th Cir. 2011), n. 786

Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002), n. 144

Ciminillo v. Streicher, 434 F.3d 461 (6th Cir. 2006), n. 1291

Clark v. Jeter, 486 U.S. 456 (1988), n. 1544

Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977), n. 82

Clay v. Conlee, 815 F.2d 1164 (8th Cir. 1987), n. 1008

Cleavinger v. Saxner, 474 U.S. 193 (1985), p. 132; nn. 1109–10

Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), n. 34

Clement v. City of Glendale, 518 F.3d 1090 (9th Cir. 2008), n. 1222

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), nn. 268, 271, 279, 303, 

305

Coastal Communications Service, Inc. v. City of New York, 658 F. Supp. 2d 425 (E.D.N.Y. 

2009), n. 190

Coates v. Powell, 639 F.3d 471 (8th Cir. 2011), n. 1650

Cobige v. City of Chicago, 651 F.3d 780 (7th Cir. 2011), n. 1567

Cochran v. Gilliam, 656 F.3d 300 (6th Cir. 2011), n. 783

Coggeshall v. Massachusetts Board of Registration of Psychologists, 604 F.3d 658 (1st Cir. 

2010), nn. 165, 176

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), n. 1341

Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010), n. 1381

Collier v. Montgomery, 569 F.3d 214 (5th Cir. 2009), n. 429

Collins v. City of Harker Heights, 503 U.S. 115 (1992), pp. 33, 45, 98; nn. 250, 258–60, 322, 

327, 363, 368, 873–74, 953

Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), n. 1011

Colon-Rivera v. Asociacion de Suscripcion, 451 F. App’x 5 (1st Cir. 2011), n. 801

Colorado v. Bertine, 479 U.S. 367 (1987), n. 516

Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), pp. 178, 

180–83; nn. 1470–71, 1474, 1511, 1514–19, 1527, 1540

Combs v. Wilkinson, 315 F.3d 548 (6th Cir. 2002), n. 1011

Conley v. Gibson, 355 U.S. 41 (1957), pp. 15, 18; n. 106

Conn v. Gabbert, 526 U.S. 286 (1999), n. 1325

Connecticut v. Crotty, 346 F.3d 84 (2d Cir. 2003), n. 1214

Connecticut Criminal Defense Lawyers Ass’n v. Forst (In re State Police Litigation), 

88 F.3d 111 (2d Cir. 1996), n. 1292

Connick v. Meyers, 461 U.S. 138 (1983), nn. 600, 602–04, 607, 624

Connick v. Thompson, 131 S. Ct. 1350 (2011), pp. 109–12; nn. 866, 924, 949, 961, 965, 

967–81

Cook v. City of BellaVilla, 582 F.3d 840 (8th Cir. 2009), n. 433

Coon v. Town of Springfield, 404 F.3d 683 (2d Cir. 2005), n. 850

Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009), n. 146

Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005), p. 98; nn. 877–78

Cordi-Allen v. Conlon, 494 F.3d 245 (1st Cir. 2007), n. 653

Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), n. 369
Cases (alphabetical)

317

Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995), n. 291

Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993), 

n. 962

Corpus v. Bennett, 430 F.3d 912 (8th Cir. 2005), n. 1556

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), p. 9; nn. 56–57

Cortes-Reyes v. Salas-Quintana, 608 F.3d 41 (1st Cir. 2010), nn. 1322, 1577

Cotton v. District of Columbia, 421 F. Supp. 2d 83 (D.D.C. 2006), n. 841

Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003), n. 1011

Cotts v. Osafo, 692 F.3d 564 (7th Cir. 2012), p. 66; nn. 35–36, 557–60

Cox v. Treadway, 75 F.3d 230 (6th Cir. 1996), n. 1431

Craig v. Floyd County, 643 F.3d 1306 (11th Cir. 2011), n. 850

Cramer v. Chiles, 33 F. Supp. 2d 1342 (S.D. Fla. 1999), n. 801

Crawford-El v. Britton, 523 U.S. 574 (1998), pp. 152, 155; nn. 82, 140, 1204, 1279–81, 

1309–15

Crissman v. Dover Downs Entertainment, 289 F.3d 231 (3d Cir. 2002), n. 755

Crossman v. Marcoccio, 806 F.2d 329 (1st Cir. 1986), n. 1694

Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000), n. 1011

Curley v. Klem, 499 F.3d 199 (3d Cir. 2007), nn. 1322–23

Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010), nn. 397, 433, 815

Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006), n. 211

Dairy Queen v. Wood, 369 U.S. 469 (1962), n. 30

Dalrymple v. Reno, 334 F.3d 991 (11th Cir. 2003), n. 1011

D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014), n. 916

Dang v. Cross, 422 F.3d 800 (9th Cir. 2005), nn. 34, 1574

Daniels v. Williams, 474 U.S. 327 (1986), nn. 85, 263, 309

Davidson v. Cannon, 474 U.S. 344 (1986), n. 85

Davis v. Barrett, 576 F.3d 129 (2d Cir. 2009), n. 286

Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), n. 963

Davis v. Passman, 442 U.S. 228 (1979), pp. 7, 10; nn. 42–46

Davis v. Rodriguez, 364 F.3d 424 (2d Cir. 2004), n. 501

Davis v. Scherer, 468 U.S. 183 (1984), nn. 1197, 1199

Davis v. United States, 131 S. Ct. 2419 (2011), n. 860

Dawes v. Walker, 239 F.3d 489 (2d Cir. 2001), nn. 630, 635

Dawson v. Milwaukee Housing Authority, 930 F.2d 1283 (7th Cir. 1991), n. 361

Deakins v. Monaghan, 484 U.S. 193 (1988), p. 180; nn. 1494–95

Dean v. Barber, 951 F.2d 1210 (11th Cir. 1992), n. 813

Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009), n. 1556

Dean v. United States, 278 F.3d 1218 (11th Cir. 2002), n. 1421

Dehertoghen v. City of Hemet, 159 F. App’x 775 (9th Cir. 2005), n. 1629

De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013), n. 555

Delaware v. Prouse, 440 U.S. 648 (1979), n. 516

Dennis v. Higgins, 498 U.S. 439 (1991), p. 29; nn. 226–27

Dennis v. Sparks, 449 U.S. 24 (1980), p. 85; nn. 141, 776–78

DePue, Village of, v. Exxon Mobil Corp., 537 F.3d 775 (7th Cir. 2008), n. 1490
Section 1983 Litigation

318

Der v. Connolly, 666 F.3d 1120 (8th Cir. 2012), n. 517

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), 

pp. 43–45; nn. 250, 351–54, 356–57, 360, 365–66

Developmental Services Network v. Douglas, 666 F.3d 540 (9th Cir. 2011), n. 684

Devenpeck v. Alford, 543 U.S. 146 (2004), n. 498

Diaz-Bigio v. Santini, 652 F.3d 45, 53 (1st Cir. 2011), n. 627

DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003), n. 318

Dickerson v. McClellan, 37 F.3d 251 (8th Cir. 1994), n. 1348

Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892 (9th Cir. 2008), n. 771

Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010), n. 1395

Dishnow v. School District of Rib Lake, 77 F.3d 194 (7th Cir. 1996), n. 605

DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003), n. 1594 

District Attorney’s Office v. Osborne, 557 U.S. 52 (2009), pp. 42–43, 162; nn. 321, 336–38, 

340–44, 346, 1358–59

District of Columbia v. Carter, 409 U.S. 418 (1973), nn. 39, 735

District of Columbia v. Heller, 554 U.S. 570 (2008), n. 225

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), p. 22; nn. 17, 156

Divane v. Krull Electric Co., 319 F.3d 307 (7th Cir. 2003), n. 1617

Dixon v. Anderson, 928 F.2d 212 (6th Cir. 1991), n. 1435

Dodd v. City of Norwich, 827 F.2d 1 (2d Cir. 1987), n. 1032

Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010), n. 1028

Doe v. Cassel, 403 F.3d 986 (8th Cir. 2005), n. 140

Doe v. City of Roseville, 296 F.3d 431 (6th Cir. 2002), n. 1011

Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996), n. 359

Doe v. Covington School District, 675 F.3d 849 (5th Cir. 2012), n. 359

Doe v. Hillsboro Independent School District, 113 F.3d 1412 (5th Cir. 1997), n. 359

Doe v. Metropolitan Police Department, 445 F.3d 460 (D.C. Cir. 2006), n. 79

Doe v. South Carolina Department of Social Services, 597 F.3d 163 (4th Cir. 2010), 

nn. 350, 358

Doe v. Sullivan County, 956 F.2d 545 (6th Cir. 1992), n. 1034

Doe v. Ward, 282 F. Supp. 2d 323 (W.D. Pa. 2003), n. 1616

Doe v. Whelan, 732 F.3d 151 (2d Cir. 2013), n. 1164

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), n. 285

Donnelly v. TRL, Inc., 420 F. App’x 126 (3d Cir. 2010), n. 801

Donovan, In re, 877 F.2d 982 (D.C. Cir. 1989), n. 1667

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), n. 1493

Dorheim v. Sholes, 430 F.3d 919 (8th Cir. 2005), n. 1234

Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008), n. 405

Dotson v. Chester, 937 F.2d 920 (4th Cir. 1991), n. 895

Dover Elevator Co. v. Arkansas State University, 64 F.3d 442 (8th Cir. 1995), n. 282

Dow Chemical Co. v. United States, 476 U.S. 227 (1986), n. 516

D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992), 

nn. 359, 365

Draper v. Darby Township Police Department, 777 F. Supp. 2d 850 (E.D. Pa. 2011), n. 801
Cases (alphabetical)

319

Drippe v. Tobelinski, 604 F.3d 778 (3d Cir. 2010), n. 1395

Drumgold v. Callahan, 707 F.3d 28 (1st Cir. 2013), p. 93; nn. 832, 834

Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), n. 407

Dubner v. San Francisco, 266 F.3d 959 (9th Cir. 2001), nn. 502, 504

Dunn v. Matatall, 549 F.3d 348 (6th Cir. 2008), n. 429

Durham v. Horner, 690 F.3d 183 (4th Cir. 2012), n. 545

Duryea, Borough of, v. Guarnieri, 131 S. Ct. 2488 (2011), n. 602

D.W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997), n. 358

Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), n. 367

Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990), n. 317

Edelman v. Jordan, 415 U.S. 651 (1974), p. 125; nn. 1049, 1073

Edison v. Tennessee Department of Children’s Services, 510 F.3d 631 (6th Cir. 2007), 

n. 1438

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), n. 750

Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004), n. 101

Edwards v. Balisok, 520 U.S. 641 (1997), p. 165; nn. 1376–77

Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012), n. 432

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), n. 210

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), n. 68

Ellis v. Ogden City, 589 F.3d 1099 (10th Cir. 2009), n. 334

Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014), n. 1028

Elrod v. Burns, 427 U.S. 347 (1976), p. 68; n. 584

Embry v. City of Calumet City, 701 F.3d 231 (7th Cir. 2012), n. 586

England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), p. 179; 

nn. 1482–87

English v. District of Columbia, 651 F.3d 1 (D.C. Cir. 2011), n. 407

Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), p. 74; nn. 650–52

Erickson v. Pardus, 551 U.S. 89 (2007), pp. 16, 21; nn. 96, 101, 110–13, 147–49

Ernst v. Child & Youth Services, 108 F.3d 486 (3d Cir. 1997), n. 1164

Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005), nn. 1066–67

Estelle v. Gamble, 429 U.S. 97 (1976), pp. 33, 66–67; nn. 87–88, 249, 251–52, 354, 462, 

554–56

Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), nn. 815, 819

Evans v. City of Chicago, 513 F.3d 735 (7th Cir. 2008), n. 852

Evans v. Jeff D., 475 U.S. 717 (1986), p. 201; nn. 1695–97

Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009), n. 1214

Exxon Mobil Corp. v. Allapattah, 545 U.S. 546 (2005), n. 187

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), pp. 22–24; 

nn. 157–58, 160–63, 173–75

Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), n. 1577

Fabrikant v. French, 691 F.3d 193 (2d Cir. 2012), n. 760

Fair Assessment in Real Estate v. McNary, 454 U.S. 100 (1981), n. 1545

Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002), n. 1033

Farbotko v. Clinton County, 433 F.3d 204 (2d Cir. 2005), nn. 1659, 1662
Section 1983 Litigation

320

Farmer v. Brennan, 511 U.S. 825 (1994), pp. 67, 107; nn. 354, 551–53, 572–79, 951–52

Farrar v. Hobby, 506 U.S. 103 (1992), p. 196; nn. 1635–38, 1643

FDIC v. Meyer, 510 U.S. 471 (1994), p. 9; nn. 41, 55

Febres v. Camden Board of Education, 445 F.3d 227 (3d Cir. 2006), n. 1066

Federacion de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 

410 F.3d 17 (1st Cir. 2005), n. 175

Felder v. Casey, 487 U.S. 131 (1988), p. 167; nn. 199, 201–02, 205, 1397

Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009), n. 487

Fennell v. Rodgers, 762 F. Supp. 2d 727 (D. Del. 2011), n. 801

Ferguson v. City of Charleston, 532 U.S. 67 (2001), n. 516

Fernandez v. California, 134 S. Ct. 1126 (2014), n. 516

Filarsky v. Delia, 132 S. Ct. 1657 (2012), pp. 146–47; nn. 1225–29

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014), n. 1126

Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011), n. 433

Fishman v. Daines, 743 F. Supp. 2d 127 (E.D.N.Y. 2010), n. 801

Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), pp. 30–31; nn. 233–40

Flagg Brothers v. Brooks, 436 U.S. 149 (1978), nn. 79, 733, 756, 765, 769, 780

Flaherty v. Coughlin, 713 F.2d 10 (2d Cir. 1983), n. 636

Fleming v. Livingston County, 674 F.3d 874 (7th Cir. 2012), n. 1214

Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984), n. 1544

Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012), n. 514

Florida v. Harris, 133 S. Ct. 1409 (2013), n. 516

Florida v. J.L., 529 U.S. 266 (2000), n. 513

Florida v. Jardines, 133 S. Ct. 1409 (2013), n. 516

Florida v. Jimeno, 500 U.S. 248 (1991), n. 516

Florida v. Riley, 488 U.S. 445 (1989), n. 516

Florida Department of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981), 

n. 1073

Folio v. City of Clarksburg, 134 F.3d 1211 (4th Cir. 1998), n. 1546

Folkerts v. City of Waverly, 707 F.3d 975 (8th Cir. 2013), n. 329

Fontana v. Alpine County, 750 F. Supp. 2d 1148 (E.D. Cal. 2010), n. 800

Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2011), n. 382

Foraker v. Claffinch, 501 F.3d 231 (3d Cir. 2007), n. 620

Ford v. Johnson, 362 F.3d 395 (7th Cir. 2004), n. 1396

Forrester v. White, 484 U.S. 219 (1988), p. 130; nn. 1085, 1100–02

Fournerat v. Wisconsin Law Review, 420 F. App’x 816 (10th Cir. 2011), n. 801

Fowler v. University of Pittsburgh Medical Center Shadyside, 578 F.3d 203 (3d Cir. 2009), 

n. 128

Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010), nn. 538, 1569

Fox v. Traverse City Area Public School Board of Education, 605 F.3d 345 (6th Cir. 2010), 

n. 618

Fox v. Vice, 131 S. Ct. 2205 (2011), nn. 1613, 1615, 1627, 1630–31, 1657–58, 1671

Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988), n. 629

Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992), n. 1164
Cases (alphabetical)

321

Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006), n. 1203

Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), n. 367

Freger v. Cox, 524 F.3d 770 (6th Cir. 2008), n. 144

Frew v. Hawkins, 540 U.S. 431 (2004), n. 1057

Frizzell v. Szabo, 647 F.3d 698 (7th Cir. 2011), n. 1556

Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000), n. 487

Gakuba v. O’Brien, 711 F.3d 751 (7th Cir. 2013), n. 1495

Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009), n. 1396

Garcetti v. Ceballos, 547 U.S. 410 (2006), pp. 70–71; nn. 599, 612–14

Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), n. 1033

Garner v. Memphis Police Department, 8 F.3d 358 (6th Cir. 1993), n. 876

Garrett v. Fleming, 362 F.3d 692 (10th Cir. 2004), n. 1431

Garry v. Geils, 82 F.3d 1362 (7th Cir. 1996), n. 168

Garza v. Burnett, 672 F.3d 1217 (10th Cir. 2012), n. 1456

Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001), nn. 1621, 1670

Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002), n. 638

Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), n. 151

Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012), nn. 146, 653

George v. City of Long Beach, 973 F.2d 206 (9th Cir. 1992), n. 1036

George v. Morris, 736 F.3d 829 (9th Cir. 2013), n. 400

Georgia v. McCollum, 505 U.S. 42 (1992), n. 750

Georgia v. Randolph, 547 U.S. 103 (2006), n. 516

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012), n. 801

Gerstein v. Pugh, 420 U.S. 103 (1975), nn. 499, 1441

Getty Petroleum Marketing v. Capital Terminal Co., 391 F.3d 312 (1st Cir. 2004), n. 913

Giano v. Goard, 380 F.3d 670 (2d Cir. 2004), n. 1389

Gibson v. Berryhill, 411 U.S. 564 (1973), n. 1510

Gibson v. Regions Financial Corp., 557 F.3d 842 (8th Cir. 2009), n. 772

Gilbert v. Homar, 520 U.S. 924 (1997), nn. 304, 306, 308

Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992), p. 106; nn. 898, 944–45

Gilliam, Estate of, v. City of Prattville, 639 F.3d 1041 (11th Cir. 2011), n. 1463

Gilmere v. City of Atlanta, 864 F.2d 734 (11th Cir. 1989), n. 1568

Ginsberg v. Healey Car & Truck Leasing, 189 F.3d 268 (2d Cir. 1999), n. 771

Giraldo v. Kessler, 694 F.3d 161 (2d Cir. 2012), n. 1123

Goldberg v. Kelly, 397 U.S. 254 (1970), n. 274

Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992), n. 860

Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989), pp. 30, 76, 77; 

nn. 228–29, 669, 671–72

Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013), nn. 812, 916

Gomez v. Toledo, 446 U.S. 635 (1980), nn. 79, 1281

Gonzaga University v. Doe, 536 U.S. 273 (2002), pp. 78, 80; nn. 656–57, 697, 699–701, 

720–23

Gonzales v. Duran, 590 F.3d 855 (10th Cir. 2009), n. 1322

Gonzales-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010), n. 330
Section 1983 Litigation

322

Gonzalez v. City of Anaheim, 747 F.3d 789 (9th Cir. 2014), n. 397

Gonzalez v. City of Schenectady, 728 F. 3d 149 (2d Cir. 2013), n. 1197

Goss v. Lopez, 419 U.S. 565 (1975), n. 277

Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 1997), n. 1011

Graham v. Connor, 490 U.S. 386 (1989), pp. 32, 49, 56, 58, 60, 151; nn. 90, 241–44, 371–72, 

376–77, 380–81, 383–84, 398–404, 478, 480, 1274

Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996), nn. 629, 636

Graham v. Richardson, 403 U.S. 365 (1971), n. 206

Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th Cir. 1990), n. 1599

Grant v. City of Pittsburgh, 98 F.3d 116 (3d Cir. 1996), n. 21

Gray v. Bostic, 720 F. 3d 887 (11th Cir. 2013), n. 1638

Gray v. Poole, 275 F.3d 1113 (D.C. Cir. 2002), n. 1164

Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010), 

nn. 161, 169

Green v. Mansour, 474 U.S. 64 (1985), n. 1055

Green v. Mattingly, 585 F.3d 97 (2d Cir. 2009), n. 548

Green v. Post, 574 F.3d 1294 (10th Cir. 2009), n. 334

Greenawalt v. Indiana Department of Corrections, 397 F.3d 587 (7th Cir. 2005), n. 1053

Greene v. Lindsey, 456 U.S. 444 (1982), n. 300

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), 

n. 284

Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991), n. 436

Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), n. 1230

Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), n. 1011

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984), n. 1667

Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), n. 545

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997), n. 285

Grissom v. The Mills Corp., 549 F.3d 313 (4th Cir. 2008), n. 1647

Groh v. Ramirez, 540 U.S. 551 (2004), nn. 1197, 1219, 1264

Gros v. City of Grand Prairie, 181 F.3d 613 (5th Cir. 1999), nn. 891, 904

Gross v. Bell, 585 F.3d 72 (2d Cir. 2009), n. 1090

Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994), n. 1214

Grover-Tsimi v. Minnesota, 449 F. App’x 529 (8th Cir. 2011), n. 801

Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009), nn. 1503, 1569

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), n. 1529

Gutierrez v. San Antonio, 139 F.3d 441 (5th Cir. 1998), n. 450

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989), n. 1012

Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006), nn. 168, 175–76

Guzman v. City of Chicago, 689 F.3d 740 (7th Cir. 2012), n. 560

Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), n. 728

Hafer v. Melo, 502 U.S. 21 (1991), pp. 87, 94, 123; nn. 789, 842, 844–45, 1043, 1062–63

Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505 (6th Cir. 2012), n. 433

Haines v. Kerner, 404 U.S. 519 (1970), n. 147

Hall v. Borough of Roselle, 747 F.2d 838 (3d Cir. 1984), n. 1626
Cases (alphabetical)

323

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998), n. 1223

Handt v. Lynch, 681 F.3d 939 (2012), n. 1198

Hanrahan v. Doling, 331 F.3d 93 (2d Cir. 2003), n. 285

Hanrahan v. Hampton, 446 U.S. 754 (1980), n. 1634

Hans v. Louisiana, 134 U.S. 1 (1890), n. 1047

Harbor Motor Co. v. Arnell Chevrolet-Geo, 265 F.3d 638 (7th Cir. 2001), n. 1694

Hardin v. Straub, 490 U.S. 536 (1989), n. 9

Haring v. Prosise, 462 U.S. 306 (1983), n. 1404

Harlow v. Fitzgerald, 457 U.S. 800 (1982), p. 155; nn. 69, 1197, 1281, 1302, 1306, 1321

Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008), n. 1124

Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999), n. 1434

Harris v. James, 127 F.3d 993 (11th Cir. 1997), nn. 692, 728

Harris v. McSwain, 417 F. App’x 594 (8th Cir. 2011), n. 801

Harris v. Serpas, 745 F.3d 767 (5th Cir. 2014), nn. 429, 436

Harris County Commissioners Court v. Moore, 420 U.S. 77 (1975), n. 1478

Harrison v. Michigan, 722 F.3d 768 (6th Cir. 2013), n. 801

Harrison v. NAACP, 360 U.S. 167 (1959), n. 1488

Hart v. City of Little Rock, 432 F.3d 801 (8th Cir. 2005), n. 367

Hart v. Hodges, 587 F.3d 1288 (11th Cir. 2009), n. 1116

Hartman v. Moore, 547 U.S. 250 (2006), pp. 72–73; nn. 82, 639–40, 1123

Harvey v. Town of Merrillville, 649 F.3d 526 (7th Cir. 2011), n. 649

Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), n. 359

Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir. 1987), n. 1011

Haywood v. Drown, 556 U.S. 729 (2009), nn. 199, 202, 205

Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010), n. 151

Heck v. Humphrey, 512 U.S. 477 (1994), pp. 10, 163–66, 173; nn. 72, 740, 1366, 1439–40, 

1496

Helling v. McKinney, 509 U.S. 25 (1993), p. 66; nn. 569–71

Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001), n. 334

Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), n. 1389

Hendrick v. Cooper, 589 F.3d 887 (7th Cir. 2009), n. 1553

Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011), p. 54; nn. 443–45

Hensley v. Eckerhart, 461 U.S. 424 (1983), p. 196; nn. 1615, 1619, 1632, 1642–45, 1653, 

1656, 1670, 1676

Hensley v. Gassman, 693 F.3d 681 (6th Cir. 2012), n. 783

Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003), n. 1011

Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872 (5th 

Cir. 2004), n. 350

Hernandez v. Velasquez, 522 F.3d 556 (5th Cir. 2008), n. 285

Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013), nn. 546, 548

Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994), n. 1072

Hewitt v. Helms, 482 U.S. 755 (1987), n. 1633

Hibbs v. Winn, 542 U.S. 88 (2004), pp. 185–86; n. 1547

Hicks v. Feeney, 850 F.2d 152 (2d Cir. 1988), n. 1291
Section 1983 Litigation

324

Hicks v. Miranda, 422 U.S. 332 (1975), n. 1493

Hickson v. Marina Associates, 743 F. Supp. 2d 362 (D.N.J. 2010), n. 548

Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712 (9th Cir. 2013), n. 1650

Hildebrandt v. Ill. Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003), 

n. 1454

Hill v. City of Pontotoc, 993 F.2d 422 (5th Cir. 1993), n. 1572

Hill v. McDonough, 547 U.S. 573 (2006), nn. 101, 1364

Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), n. 291

Hoblock v. Albany County Board of Elections, 422 F.3d 77 (2d Cir. 2005), n. 161

Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013), nn. 1423, 1432

Holiday Amusement Co. of Charleston, Inc. v. South Carolina, 40 F.3d 534 (4th Cir. 2005), 

n. 177

Holland v. Bramble, 775 F. Supp. 2d 748 (D. Del. 2011), n. 801

Hoog-Watson v. Guadalupe County, 591 F.3d 431 (5th Cir. 2009), n. 1124

Hooper v. County of San Diego, 629 F.3d 1127 (9th Cir. 2011), n. 1369

Hope v. Pelzer, 536 U.S. 730 (2002), pp. 147–48; nn. 1197, 1206, 1233, 1236, 1239–41, 1325

Horn v. Madison County Fiscal Court, 22 F.3d 653 (6th Cir. 1994), n. 463

Hotel & Restaurant Employees Union, Local 100 v. City of New York Department of Parks 

& Recreation, 311 F.3d 534 (2d Cir. 2002), n. 739

Houston v. Norton, 215 F.3d 1172 (10th Cir. 2000), n. 1628

Houston v. Williams, 547 F.3d 1357 (11th Cir. 2008), n. 728

Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989), n. 1012

Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011), n. 642

Howlett v. Rose, 496 U.S. 356 (1990), p. 26; nn. 199, 203–05, 860

Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012), n. 433

Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976), n. 766

Hudson v. McMillian, 503 U.S. 1 (1992), p. 58; nn. 244, 374, 389, 464, 466, 469–72, 580–83

Hudson v. Michigan, 547 U.S. 586 (2006), pp. 2–3; nn. 13–16, 1614

Hudson v. Palmer, 468 U.S. 517 (1984), nn. 263, 309, 1354

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), p. 180; nn. 1490, 1497–99

Hughes v. Region VII Area Agency on Aging, 542 F.3d 169 (6th Cir. 2008), n. 786

Hughes v. Rowe, 449 U.S. 5 (1980), nn. 147, 1627

Hui v. Castaneda, 130 S. Ct. 1845 (2010), n. 59

Hunter v. Bryant, 502 U.S. 224 (1991), p. 155; nn. 1197, 1268, 1277, 1298–1301, 1321

Hussein v. City of Perrysburg, 617 F.3d 828 (6th Cir. 2010), n. 333

Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007), n. 1602

Hutchinson v. Patrick, 636 F.3d 1 (1st Cir. 2011), n. 1650

Hutson v. Walker, 688 F.3d 477 (8th Cir. 2012), n. 1164

Hutto v. Finney, 437 U.S. 678 (1978), nn. 1056, 1058, 1689

Illinois v. Caballes, 543 U.S. 405 (2006), n. 516

Illinois v. Gates, 462 U.S. 213 (1983), n. 516

Illinois v. Lafayette, 462 U.S. 640 (1983), n. 516

Illinois v. Lidster, 540 U.S. 419 (2001), n. 516

Illinois v. Wardlow, 528 U.S. 119 (2000), n. 513
Cases (alphabetical)

325

Imbler v. Pachtman, 424 U.S. 409 (1976), pp. 133, 136–37; nn. 1114, 1119–22

Immigration & Naturalization Service v. Delgado, 466 U.S. 210 (1984), n. 387

Indianapolis, City of, v. Edmond, 531 U.S. 32 (2000), n. 516

Ingle v. Yelton, 439 F.3d 191 (4th Cir. 2006), n. 397

Ingraham v. Wright, 430 U.S. 651 (1977), n. 360

International Action Center v. United States, 365 F.3d 20 (D.C. Cir. 2004), n. 1011

International Ground Transportation, Inc. v. Mayor of Ocean City, Maryland, 475 F.3d 

214 (4th Cir. 2007), n. 1034

Inyo County, California v. Paiute-Shoshone Indians, 538 U.S. 701 (2003), n. 208

Jackson v. Alabama, 405 F.3d 1276 (11th Cir. 2005), n. 626

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), nn. 734, 756, 758, 767, 769, 

773–75

Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), n. 1431

Jama v. Esmor Correctional Services 577 F.3d 169 (3d Cir. 2009), n. 1638

Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995), n. 692

Jenkins v. Missouri, 127 F.3d 709 (8th Cir. 1997), n. 1620

Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000), n. 1223

Jett v. Dallas Independent School District, 491 U.S. 701 (1989), pp. 13, 100–01; nn. 91–92, 

881, 895, 899–900

Jewett v. Anders, 521 F.3d 818 (7th Cir. 2008), n. 512

Jinks v. Richland County, South Carolina, 538 U.S. 456 (2003), nn. 186, 191–92, 194

J.O. v. Alton School District, 909 F.2d 267 (7th Cir. 1990), n. 359

Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002), n. 1322

Johnson v. De Grandy, 512 U.S. 997 (1994), n. 177

Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006), n. 728

Johnson v. Fankel, 520 U.S. 911 (1997), n. 205

Johnson v. Georgia Highway Express, Inc., 488 F.2d 717 (5th Cir. 1974), n. 1654

Johnson v. Jones, 515 U.S. 304 (1995), nn. 1341–42

Johnson v. Louisiana Department of Agriculture, 18 F.3d 318 (5th Cir. 1994), n. 317

Johnson v. Orr, 551 F.3d 564 (7th Cir. 2008), n. 169

Johnson v. City of Shelby, 743 F.3d 59 (5th Cir. 2013), n. 91

Johnson v. City of Tulsa, 489 F.3d 1089 (10th Cir. 2007), n. 1672

Jones v. Baker, 155 F.3d 810 (6th Cir. 1998), n. 285

Jones v. Bock, 549 U.S. 199 (2007), p. 167; nn. 101, 1391–94

Jones v. Byrnes, 585 F.3d 971 (6th Cir. 2009), n. 334

Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988), n. 1011

Jones v. Flowers, 547 U.S. 164 (2006), n. 300

Jones v. United Parcel Service, Inc., 674 F.3d 1187 (10th Cir. 2012), nn. 27, 1574

Jones v. United States, 132 S. Ct. 945 (2012), n. 516

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994), n. 1222

Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994), n. 996

Jordan v. Time, Inc., 111 F.3d 102 (11th Cir. 1997), n. 1694

Jordan v. United States Department of Justice, 691 F.2d 514 (D.C. Cir. 1982), n. 1626

Juidice v. Vail, 430 U.S. 327 (1977), nn. 1490, 1499
Section 1983 Litigation

326

Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), nn. 538, 548

J.W. v. Utah, 647 F.3d 1006 (10th Cir. 2011), nn. 349, 358

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), n. 225

Kalina v. Fletcher, 522 U.S. 118 (1997), pp. 135–36; nn. 1084, 1144

Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), n. 369

Kamensky v. Dean, 148 F. App’x 878 (11th Cir. 2005), n. 896

Kanciper v. Suffolk County Society for Prevention of Cruelty to Animals, 722 F.3d 88 (2d 

Cir. 2013), n. 1517

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011), n. 649

Karo v. United States, 468 U.S. 705 (1984), n. 516

Karr v. Smith, 774 F.2d 1029 (10th Cir. 1985), n. 505

Katz v. United States, 389 U.S. 347 (1967), n. 516

Kaucher v. County of Bucks, 455 F.3d 418 (3d Cir. 2006), n. 364

Kay v. Ehrler, 499 U.S. 432 (1991), n. 1652

Keisling v. Renn, 425 F. App’x 106 (3d Cir. 2011), n. 801

Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), n. 1214

Kenmen Engineering v. City of Union, 314 F.3d 468 (10th Cir. 2002), n. 168

Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir. 2010), n. 1214

Kenney v. Floyd, 700 F.3d 604 (1st Cir. 2012), n. 431

Kentucky v. Graham, 473 U.S. 159 (1985), p. 94; nn. 838–40, 851

Kentucky v. King, 131 S. Ct. 1849 (2011), n. 516

Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989), n. 267

Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (1st Cir. 1987), n. 1503

Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999), n. 543

Keweenaw Bay Indian Community v. Rising, 569 F.3d 589 (6th Cir. 2009), n. 209

Kikumura v. Osagie, 461 F.3d 1269 (10th Cir. 2006), n. 96

Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004), nn. 882, 896

King v. East St. Louis School District 189, 496 F.3d 812 (7th Cir. 2007), n. 367

King v. Macri, 993 F.2d 294 (2d Cir. 1993), nn. 1577, 1579

Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004), n. 548

Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014), n. 488

Kinnison v. City of San Antonio, 480 Fed. App’x 271 (5th Cir. 2012), n. 852

Knotts v. United States, 460 U.S. 276 (1983), n. 516

Knutson v. City of Fargo, 600 F.3d 992 (8th Cir. 2010), nn. 165, 1403

Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999), n. 1576

Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004), n. 430

Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009), nn. 547–48

Koubriti v. Convertino, 593 F.3d 459 (6th Cir. 2010), n. 1123

Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004), nn. 161, 168

Kovacic v. Cuyahoga County Department of Children & Family Services, 724 F.3d 687 

(6th Cir. 2013), n. 1164

Kovacic v. Cuyahoga County Department of Children & Family Services, 606 F.3d 301 

(6th Cir. 2010), n. 169

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), n. 1405
Cases (alphabetical)

327

Krupski v. Costa Cruciere, 130 S. Ct. 2485 (2010), p. 172; nn. 1424, 1426–30

Kugler v. Helfant, 421 U.S. 117 (1975), n. 1509

Kujawski v. Board of Commissioners, 183 F.3d 734 (7th Cir. 1999), n. 891

Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001), n. 548

Kyllo v. United States, 533 U.S. 27 (2001), n. 516

L.J. v. Wilbon, 633 F.3d 297 (4th Cir. 2011), n. 695

L.L. Nelson Enterprises, Inc. v. County of St. Louis, 673 F.3d 799 (8th Cir. 2012), n. 1028

Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012), nn. 146, 548, 1028, 1123, 1128

Lafleur v. Texas Department of Health, 126 F.3d 758 (5th Cir. 1997), n. 240

Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498 (1972), n. 1479

Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979), pp. 

126, 141; nn. 1071–72, 1188–89

Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000), n. 548

Lance v. Dennis, 546 U.S. 459 (2006), p. 24; nn. 160–61, 164, 178–79

Lance, Estate of, v. Lewisville Independent School District, 743 F.3d 982 (5th Cir. 2014), 

n. 359 

Lane v. Franks, 189 L. Ed. 2d 312 (2014), pp. 70–71; nn. 603–05, 615–17, 625, 1231, 1237

Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996), n. 1011

Lapides v. Board of Regents, 535 U.S. 613 (2002), nn. 198, 1074–75

Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994), nn. 82, 502–03, 1600

Lassiter v. City of Bremerton, 556 F.3d 1049 (9th Cir. 2009), n. 545

Lassiter v. Department of Social Services, 452 U.S. 18 (1981), n. 1544

Latta v. Chapala, 221 F. App’x 443 (7th Cir. 2007), n. 1167

Lawrence v. Reed, 406 F.3d 1224 (10th Cir. 2005), n. 1214

Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980), n. 748

Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003), n. 1006

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 

(1993), pp. 14–16, 18–20, 97, 113–14; nn. 97–98, 101, 135, 137, 859–60, 995–97

Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), n. 751

Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996), n. 1594

Lee v. Mihalich, 847 F.2d 66 (3d Cir. 1988), n. 545

Lee v. Sandberg, 136 F.3d 94 (2d Cir. 1997), n. 1292

Lee Testing & Engineering Inc. v. Ohio Department of Transportation, 855 F. Supp. 2d 722 

(S.D. Ohio 2012), n. 801

Lefemine v. Wideman, 133 S. Ct. 9 (2012), nn. 1622, 1635

Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502 (1982), n. 1544

Lehr v. Robertson, 463 U.S. 248 (1983), n. 1544

Leslie v. Hancock County Board of Education, 720 F.3d 1338 (11th Cir. 2013), n. 620

Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010), p. 185; nn. 1548–50

Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), n. 240

Levy, Estate of, v. City of Spokane, 534 F. App’x 595 (9th Cir. 2013), n. 433 

Lewellen v. Metropolitan Government of Nashville, 34 F.3d 345 (6th Cir. 1994), n. 362

Lewis v. City of Fort Collins, 903 F.2d 752 (10th Cir. 1990), n. 1308

Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999), n. 626
Section 1983 Litigation

328

Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009), n. 433

Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), n. 1568

Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010), n. 1028

Liebson v. New Mexico Corrections Department, 73 F.3d 274 (10th Cir. 1996), n. 362

Lima v. Newark Police Department, 658 F.3d 324 (3d Cir. 2011), n. 1693

Lindsey v. City of Orrick, 491 F.3d 892 (8th Cir. 2007), n. 623

Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994), nn. 350, 358

Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993), n. 545

Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006), nn. 207, 817, 1036, 1638, 1661

Little v. Jones, 607 F.3d 1245 (10th Cir. 2010), n. 1389

Little v. Streater, 452 U.S. 1 (1981), n. 1544

Littrell v. Franklin, 388 F.3d 578 (8th Cir. 2004), nn. 1207, 1322

Loftus v. Clark-Moore, 690 F.3d 1200 (11th Cir. 2012), n. 1164

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), nn. 307, 1356

Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007), n. 518

Lopez v. City of Chicago, 464 F.3d 711 (7th Cir. 2006), nn. 382, 852

Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994), n. 1659

Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012), n. 1034

Los Angeles v. Heller, 475 U.S. 796 (1986), p. 120; nn. 1030–31

Los Angeles, City of, v. Lyons, 461 U.S. 95 (1983), p. 27; nn. 213–20

Los Angeles County v. Humphries, 131 S. Ct. 447 (2010), pp. 91, 96; nn. 2, 12, 822–24, 

853–56

Lowe v. Lestinger, 772 F.2d 308 (7th Cir. 1985), n. 1091

Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136 (2d Cir. 2006), n. 230

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), p. 85; nn. 737–38, 776, 781–83

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), n. 211

Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 (2001), n. 282

Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), n. 290

Luthy v. Proulx, 464 F. Supp. 2d 69 (D. Mass. 2006), n. 997

L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), n. 369

Maciariello v. Sumner, 973 F.2d 295 (4th Cir. 1992), n. 1207

Madison v. Parker, 104 F.3d 765 (5th Cir. 1997), n. 289

Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir. 2010), n. 1638

Maher v. Gagne, 448 U.S. 122 (1980), n. 1639

Maine v. Thiboutot, 448 U.S. 1 (1980), p. 75; nn. 655, 1614

Maineville, Village of, v. Hamilton Township Board of Trustees, 726 F.3d 762 (6th Cir. 

2013), n. 1641

Malley v. Briggs, 475 U.S. 335 (1986), p. 150; nn. 69, 816, 1197, 1219, 1243, 1253–57

Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989), p. 101; nn. 903–04

Maness v. District Court of Logan County-Northern Division, 495 F.3d 943 (8th Cir. 

2007), n. 1113

Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), nn. 545, 548

Mann v. Taser International, 588 F.3d 1291 (11th Cir. 2009), n. 433

Manzanares v. City of Albuquerque, 628 F.3d 1237 (10th Cir. 2010), n. 1036
Cases (alphabetical)

329

Manzano v. South Dakota Department of Social Services, 60 F.3d 505 (8th Cir. 1995), 

n. 1234

Marek v. Chesny, 473 U.S. 1 (1985), pp. 200–01; nn. 1691–93

Marion v. Columbia Correctional Institution, 559 F.3d 693 (7th Cir. 2009), n. 286

Marquez v. City of Phoenix, 693 F.3d 1167 (9th Cir. 2012), n. 433

Marshall v. Randall 719 F. 3d 113 (2d Cir. 2013), n. 1173

Martin v. Heideman, 106 F.3d 1308 (6th Cir. 1997), n. 430

Martinez v. California, 444 U.S. 277 (1980), nn. 814, 819

Martinez v. Carson, 697 F.3d 1252 (10th Cir. 2012), n. 818

Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010), n. 329

Martinez v. Winner, 771 F.2d 424 (10th Cir. 1985), n. 1091

Marvin v. City of Taylor, 509 F.3d 234 (6th Cir. 2007), n. 429

Maryland v. Pringle, 540 U.S. 366 (2003), n. 495

Mason v. Oklahoma Turnpike Authority, 182 F.3d 1212 (10th Cir. 1999), n. 1579

Mathews v. Eldridge, 424 U.S. 319 (1976), pp. 37–38; nn. 275, 301–02

Matta-Ballestros v. Hennan, 896 F.3d 255 (7th Cir. 1990), n. 434

Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011), n. 433

Mays v. Springborn, 719 F.3d 631 (7th Cir. 2013), n. 632

Maxwell v. County of San Diego, 697 F.3d 941 (9th Cir. 2012), n. 431

McCachren v. Blacklick Valley School District, 217 F. Supp. 2d 594 (W.D. Pa. 2002), n. 841

McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002), n. 1291

McCloskey v. Mueller, 446 F.3d 262 (1st Cir. 2006), n. 735

McClure v. Independent School District No. 16, 228 F.3d 1205 (10th Cir. 2000), n. 1571

McConkie v. Nichols, 446 F.3d 258 (1st Cir. 2006), n. 335

McCormick v. Miami University, 693 F.3d 654 (6th Cir. 2012), n. 93

McCoy v. Hernandez, 203 F.3d 371 (5th Cir. 2000), n. 1322

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), n. 1230

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), n. 225

McDonald v. City of West Branch, 466 U.S. 284 (1984), p. 170; n. 1414

McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992), n. 389

McDow v. Rosad, 657 F. Supp. 2d 463 (S.D.N.Y. 2009), n. 1653

McKenna v. City of Philadelphia, 582 F.3d 447 (3d Cir. 2009), nn. 407, 545

McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), nn. 1295, 1343

McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011), n. 433

McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005), n. 815

McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), n. 1396

McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996), n. 876

McMillan v. New York State Board of Elections, 449 F. App’x 79 (2d Cir. 2011), n. 801

McMillian v. Monroe County, 520 U.S. 781 (1997), pp. 89, 102–03; nn. 808–12, 914–15, 

917–21

McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999), n. 147

McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006), nn. 359, 367

Mejia v. City of New York, 228 F. Supp. 2d 234 (E.D.N.Y. 2002), n. 850

Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir. 1989), p. 102; nn. 911–12
Section 1983 Litigation

330

Memphis Community School District v. Stachura, 477 U.S. 299 (1986), pp. 187–88; 

nn. 1551, 1555–56, 1561–64

Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978), n. 278

Menonite Board of Missions v. Adams, 462 U.S. 791 (1983), n. 300

Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18 (1st Cir. 2010), n. 1586

Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005), n. 1638

Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993), n. 314

Mesa v. Prejean, 543 F.3d 264 (5th Cir. 2008), n. 641

Messa v. Goord, 652 F.3d 305 (2d Cir. 2011), n. 1395

Messerschmidt v. Millender, 132 S. Ct. 1235 (2012), pp. 145, 150–01; nn. 1197, 1201, 

1215–17, 1219, 1259–65

Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013), n. 433

Michigan v. DeFillippo, 443 U.S. 31 (1979), n. 495

Michigan v. Fisher, 130 S. Ct. 546 (2009), nn. 500, 516

Michigan v. Summers, 452 U.S. 692 (1981), p. 63; nn. 523, 525

Michigan v. Tyler, 436 U.S. 499 (1978), n. 516

Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), n. 516

Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982), 

pp. 180–81; nn. 1491, 1500–01

Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), 

p. 79; nn. 656, 704–05, 708–11

Migneault v. Peck, 204 F.3d 1003 (10th Cir. 2000), n. 240

Migra v. Warren City School District, 465 U.S. 75 (1984), nn. 1404, 1410

Miller v. Lovett, 879 F.2d 1066 (2d Cir. 1989), n. 1570

Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997), n. 285

Milliken v. Bradley, 433 U.S. 267 (1977), n. 1051

Mills v. City of Grand Rapids, 614 F.3d 495 (8th Cir. 2010), n. 332

Mills v. Habluetzel, 456 U.S. 91 (1982), n. 1544

Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370 (7th Cir. 2009), n. 606

Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), nn. 1639, 1641

Minneci v. Pollard, 132 S. Ct. 617 (2012), p. 9; nn. 60–64

Mireles v. Waco, 502 U.S. 9 (1991), p. 130; nn. 1088, 1091, 1098–99

Missouri v. Jenkins, 491 U.S. 274 (1989), nn. 1666, 1677, 1690

Missouri v. Jenkins, 495 U.S. 33 (1990), n. 1065

Mitchell v. City of New Haven, 854 F. Supp. 2d 238 (D. Conn. 2012), n. 739

Mitchell v. Duval County School Board, 107 F.3d 837 (11th Cir. 1997), n. 369

Mitchell v. Forsyth, 472 U.S. 511 (1985), nn. 1196, 1305, 1319, 1321, 1341

Monell v. Department of Social Services, 436 U.S. 658 (1978), pp. 2, 89, 96–99, 103, 113; 

nn. 2–3, 10–12, 239, 802–03, 838, 849, 852, 856, 861, 922–23, 1006, 1033, 1065, 1417

Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 2001), nn. 451–52

Monroe v. Pape, 365 U.S. 167 (1961), pp. 1–2; nn. 2, 4–8, 746, 816, 1352

Monterey, City of, v. Del Monte Dunes, 526 U.S. 687 (1999), n. 27

Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998), n. 518

Moor v. County of Alameda, 411 U.S. 693 (1973), n. 1417
Cases (alphabetical)

331

Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996), n. 1112

Moore v. Carpenter, 404 F.3d 1043 (8th Cir. 2005), n. 783

Moore v. City of East Cleveland, 431 U.S. 494 (1977), n. 320

Moore v. City of Harriman, 272 F.3d 769 (6th Cir. 2001), n. 848

Moore v. Hartman, 571 F.3d 62 (D.C. Cir. 2009), n. 640

Moore v. Nelson, 394 F. Supp. 2d 1365 (M.D. Ga. 2005), n. 335

Moore v. Sims, 442 U.S. 415 (1979), nn. 1490, 1498–99, 1510

Moose Lodge v. Irvis, 407 U.S. 163 (1972), n. 753

Moots v. Lombardi, 453 F.3d 1020 (8th Cir. 2006), n. 632

Moreland, Estate of, v. Dieter, 395 F.3d 747 (7th Cir. 2005), n. 463

Morgan v. Plano Independent School District, 589 F.3d 740 (5th Cir. 2009), n. 1556

Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993), n. 1594

Morningside Supermarket Co. v. New York State Department of Health, 432 F. Supp. 2d 

334 (S.D.N.Y. 2006), n. 190

Morrison v. City of New York, 591 F.3d 109 (2d Cir. 2010), n. 166

Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013), n. 359

Morrow v. Federal Bureau of Prisons, 610 F.3d 1271 (11th Cir. 2010), n. 1381

Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), 

p. 183; nn. 1512–13, 1520–22, 1527–28

Moss v. Martin, 614 F.3d 707 (7th Cir. 2010), n. 1214

Moss v. United States Secret Service, 675 F.3d 1213 (9th Cir. 2012), n. 431

Moyle v. Anderson, 571 F.3d 814 (8th Cir. 2009), n. 1033

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), p. 126; 

nn. 592, 628, 1065–66, 1069–70

Muehler v. Mena, 544 U.S. 93 (2005), pp. 62–63; nn. 521–22, 524, 526–29

Muhammad v. Close, 540 U.S. 749 (2004), p. 165; nn. 1378–79

Muhammad v. Lockhart, 104 F.3d 1069 (8th Cir. 1997), n. 1638

Muldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009), n. 1167

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), n. 300

Mulholland v. Government County of Berks, 706 F.3d 227 (3d Cir. 2013), n. 883

Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), n. 545

Murray v. Earle, 405 F.3d 278 (5th Cir. 2005), nn. 815, 819

Muscogee (Creek) Nation v. Oklahoma Tax Commission, 611 F.3d 1222 (10th Cir. 2010), 

n. 209

Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), n. 359

Nails v. Pennsylvania Department of Transportation, 414 F. App’x 452 (3d Cir. 2011), 

n. 801

Nair v. Oakland County Community Mental Health Authority, 443 F.3d 469 (6th Cir. 

2006), n. 1046

Napier v. Madison County, 238 F.3d 739 (6th Cir. 2001), n. 463

National Ass’n of Government Employees v. Mulligan, 849 F. Supp. 2d 167 (D. Mass. 

2012), n. 1540

National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988), p. 85; nn. 764, 772, 

779
Section 1983 Litigation

332

National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582 (1995), 

nn. 199, 205, 1545

National Railroad Passengers Corp. v. Morgan, 536 U.S. 101 (2002), p. 176; n. 1453

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), n. 516

Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011), n. 1028

Nelson v. Campbell, 541 U.S. 637 (2004), pp. 163–64; nn. 1363–64, 1367–68

Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009), n. 1028

New Jersey v. T.L.O., 469 U.S. 325 (1985), n. 516

Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), n. 433

New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350 (1989), p. 184; 

nn. 1499, 1531, 1537–40

New York v. Burger, 482 U.S. 691 (1987), n. 516

New York, In re City of, 607 F.3d 923 (2d Cir. 2010), n. 24

New York State Federation of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine 

Commission, 272 F.3d 154 (2d Cir. 2001), n. 1649

Newport, City of, v. Fact Concerts, Inc., 453 U.S. 247 (1981), pp. 97, 189; nn. 862, 875, 887, 

989, 1581

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), nn. 538, 548

Newton, Town of, v. Rumery, 480 U.S. 386 (1985), p. 191; n. 1596

Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009), n. 176

Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000), nn. 350, 358

Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001), nn. 534, 538, 548

Nivens v. Gilchrist, 444 F.3d 237 (4th Cir. 2006), nn. 840, 1510

Nix v. Norman, 879 F.2d 429 (8th Cir. 1989), n. 848

Noel v. Artson, 641 F.3d 580 (4th Cir. 2011), nn. 32–33

Norfleet v. Arkansas Department of Human Services, 989 F.2d 289 (8th Cir. 1993), n. 358

Northern Insurance Co. of New York v. Chatham County, 547 U.S. 189 (2006), n. 1065

Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010), n. 1389

O’Bert v. Vargo, 331 F.3d 29 (2d Cir. 2003), n. 397

O’Brien v. City of Greers Ferry, 873 F.2d 1115 (8th Cir. 1989), n. 1694

O’Connor v. Huard, 117 F.3d 12 (1st Cir. 1997), nn. 486, 491

O’Connor v. Ortega, 480 U.S. 709 (1987), n. 516

O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996), p. 69; nn. 597–98

O’Shea v. Littleton, 414 U.S. 488 (1974), n. 220

Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986), 

p. 181; nn. 1502–03

Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415 (2d Cir. 2009), 

n. 367

Oklahoma City, City of, v. Tuttle, 471 U.S. 808 (1985), nn. 90, 948

Oliva v. Heller, 839 F.2d 37 (2d Cir. 1988), n. 1112

Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009), n. 433

Oliver v. United States, 466 U.S. 170 (1984), n. 516

Ontario, City of, v. Quon, 130 S. Ct. 2619 (2010), n. 516

Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), n. 285
Cases (alphabetical)

333

Orr v. Orr, 440 U.S. 268 (1979), n. 1544

Ortiz v. Jordan, 131 S. Ct. 884 (2011), pp. 157, 161; nn. 1196, 1293–34, 1320, 1341–42, 

1349–51

OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012), n. 1028

Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), n. 869

Owen v. City of Independence, 445 U.S. 622 (1980), pp. 97, 122; nn. 857–58, 875, 989, 

1039–40

Owen v. Okure, 488 U.S. 235 (1989), n. 1420

Palazzolo v. Rhode Island, 533 U.S. 606 (2001), n. 1400

Palmetto Properties, Inc. v. County of DuPage, 375 F.3d 542 (7th Cir. 2004), n. 1649

Parish v. City of Chicago, 594 F.3d 551 (7th Cir. 2009), n. 538

Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008), n. 433

Parratt v. Taylor, 451 U.S. 527 (1981), pp. 38–39, 162; nn. 83–84, 263, 309, 312, 1354, 1360

Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009), nn. 407, 1282

Patel v. Kent School District, 648 F.3d 965 (9th Cir. 2011), nn. 359, 957

Patsy v. Board of Regents, 457 U.S. 496 (1982), pp. 43, 166; nn. 2, 199, 1382, 1398, 1503

Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004), n. 296

Patton v. County of Kings, 857 F.2d 1379 (9th Cir. 1988), n. 1629

Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir. 1981), 

n. 91

Paul v. Davis, 424 U.S. 693 (1976), pp. 33, 36; nn. 250, 255–57, 268, 295–96

Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), n. 1395

Payne v. Jones, 711 F.3d 85 (2d Cir. 2013), nn. 1584, 1586, 1588

Payne v. Milwaukee County, 288 F.3d 1021 (7th Cir. 2002), n. 1694

Payton v. New York, 445 U.S. 573 (1980), nn. 500, 516

Pearson v. Callahan, 555 U.S. 223 (2009), pp. 158–59; nn. 71, 1197, 1200, 1208, 1213, 1219, 

1235, 1273, 1324, 1326, 1328–32, 1334–38, 1340

Peirick v. Indiana University-Purdue University Indianapolis Athletic Department, 510 

F.3d 681 (7th Cir. 2007), n. 1066

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), pp. 99–100; nn. 865, 880, 882, 884–91

Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2005), n. 367

Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), pp. 75, 80; nn. 660, 

662–68, 724–25

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), p. 125; nn. 1059–61

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986), 

n. 1675

Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987), nn. 1490, 1499, 1510

People for Ethical Treatment of Animals v. Gittens, 396 F.3d 416 (D.C. Cir. 2005), nn. 803, 

1065

Perdue v. Kenny A., 130 S. Ct. 1662 (2010), nn. 18, 1613, 1653–56, 1674, 1676–79, 1698

Perez v. Ledesma, 401 U.S. 82 (1971), n. 1509

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), n. 86

Peterson v. City of Fort Worth, 588 F.3d 838 (5th Cir. 2009), n. 942

Phillip Morris USA v. Williams, 549 U.S. 346 (2007), p. 190; nn. 1591–93
Section 1983 Litigation

334

Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008), n. 367

Phillips, Estate of, v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), n. 450

Phillips, Estate of, v. District of Columbia, 455 F.3d 397 (D.C. Cir. 2006), n. 364

Phillips v. Irvin, 222 F. App’x 928 (11th Cir. 2007), n. 641

Pickering v. Board of Education, 391 U.S. 563 (1968), pp. 71–72; nn. 601, 622–23

Pickett v. Brown, 462 U.S. 1 (1983), n. 1544

Pickrel v. City of Springfield, 45 F.3d 1115 (7th Cir. 1995), n. 748

Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004), n. 548

Pierson v. Ray, 386 U.S. 547 (1967), p. 129; nn. 1088, 1092–94

Pike v. City of Mission, 731 F.2d 655 (10th Cir. 1984), n. 1452

Pike v. Osborne, 301 F.3d 182 (4th Cir. 2002), n. 627

Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), nn. 366–67

Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002), p. 106; nn. 939–42

Pitchell v. Callahan, 13 F.3d 545 (2d Cir. 1994), n. 748

Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007), n. 548

Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health, 

699 F.3d 962 (7th Cir. 2012), nn. 692, 726

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), nn. 401, 423, 1196, 1231–32, 1235, 1244, 

1275, 1327, 1331

Plyler v. Doe, 457 U.S. 202 (1982), n. 206

Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), n. 1011

Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002), n. 1011

Polk County v. Dodson, 454 U.S. 312 (1981), pp. 81–82; n. 741

Porter v. Nussle, 534 U.S. 516 (2002), p. 166; nn. 1386–87

Posey v. Lake Pend Oreille School District No. 84, 546 F.3d 1121 (9th Cir. 2008), n. 620

Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004), n. 1575

Power v. Summers, 226 F.3d 815 (7th Cir. 2000), p. 88; nn. 798–99, 1044

Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir. 2007), 

nn. 169, 743

Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995), n. 291

Preiser v. Rodriguez, 411 U.S. 475 (1973), pp. 163, 165; n. 1361

Presley v. City of Benbrook, 4 F.3d 405 (5th Cir. 1993), n. 1322

Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010), n. 1650

Prue v. City of Syracuse, 26 F.3d 14 (2d Cir. 1994), n. 1034

Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), 

p. 127; nn. 1076–78

Pulliam v. Allen, 466 U.S. 522 (1984), p. 131; n. 1103

Purvis v. Oest, 614 F.3d 713 (7th Cir. 2010), n. 1291

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), nn. 1541–42

Quern v. Jordan, 440 U.S. 332 (1979), nn. 2, 1048

Quilloin v. Walcott, 434 U.S. 246 (1978), n. 1544

Quinn v. Monroe County, 330 F.3d 1320 (11th Cir. 2003), n. 896

Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005), nn. 249, 518

Rahn v. Hawkins, 464 F.3d 813 (8th Cir. 2006), nn. 451–52
Cases (alphabetical)

335

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), p. 178; nn. 1472, 1477

Ramirez v. Arlequin, 447 F.3d 19 (1st Cir. 2006), n. 282

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), n. 1625

Rancho Palos Verdes, City of, v. Abrams, 544 U.S. 113 (2005), p. 79; nn. 237, 656, 702–03, 

718–20

Randall v. Prince George’s County, 302 F.3d 188 (4th Cir. 2002), n. 1011

Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), nn. 139, 1286 

Rankin v. Evans, 133 F.3d 1425 (11th Cir. 1998), n. 502

Rankin v. McPherson, 483 U.S. 378 (1987), n. 625

Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013), n. 453

Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001), nn. 630–31, 634

Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002), nn. 191, 193

Raysor v. Port Authority, 768 F.2d 34 (2d Cir. 1985), n. 506

Reasonover v. St. Louis County, 447 F.3d 569 (8th Cir. 2006), nn. 144, 1118

Redondo-Borges v. United States Department of Housing & Urban Development, 421 

F.3d 1 (1st Cir. 2005), n. 282

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), n. 367

Reel v. Arkansas Department of Correction, 672 F.2d 693 (8th Cir. 1982), n. 1640

Regents of the University of California v. Doe, 519 U.S. 425 (1997), n. 1049

Rehberg v. Paulk, 132 S. Ct. 1497 (2012), pp. 139–40; nn. 1079–84, 1167–78

Reichle v. Howards, 132 S. Ct. 2088 (2012), p. 73; nn. 65, 71, 641–46, 1232, 1237–38, 1244, 

1327, 1332

Rendell-Baker v. Kohn, 457 U.S. 830 (1982), nn. 754, 762, 773–75

Replay, Inc. v. Secretary of Treasury of Puerto Rico, 778 F. Supp. 2d 207 (D.P.R. 2011), 

n. 801

Revere, City of, v. Massachusetts General Hospital, 463 U.S. 239 (1983), p. 57; nn. 459–61

Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007), n. 783

Reynolds v. Giuliani, 118 F. Supp. 2d 352 (S.D.N.Y. 2000), n. 801

Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005), nn. 630–31

Rice v. Correctional Medical Services, 675 F.3d 650 (7th Cir. 2012), n. 850

Richardson v. McKnight, 521 U.S. 399 (1997), p. 145; nn. 1220, 1224

Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008), n. 1666

Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir. 1996), n. 404

Riley v. California, 189 L. Ed. 2d 430 (2014), n. 516

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), n. 382

Rivas v. City of Passaic, 365 F.3d 181 (3d Cir. 2004), n. 821

Rivera v. Illinois, 556 U.S. 148 (2009), n. 332

Rivera-Powell v. New York City Board of Elections, 470 F.3d 458 (2d Cir. 2006), nn. 313, 

318

Riverside, City of, v. Rivera, 477 U.S. 561 (1986), p. 199; nn. 1680–82

Riverside, County of, v. McLaughlin, 500 U.S. 44 (1991), nn. 499, 1441

Rizzo v. Goode, 423 U.S. 362 (1976), nn. 220, 1011

Roberson v. Giuliani, 346 F.3d 75 (2d Cir. 2003), nn. 1650–51

Roberts v. City of Shreveport, 397 F.3d 287 (5th Cir. 2005), n. 1011
Section 1983 Litigation

336

Robertson v. Wegmann, 436 U.S. 584 (1978), p. 177; nn. 9, 1459–64

Robins v. Ritchie, 631 F.3d 919 (8th Cir. 2011), n. 174

Robinson v. District of Columbia, 403 F. Supp. 2d 39 (D.D.C. 2005), n. 806

Roche v. John Hancock Mutual Life Insurance Co., 81 F.3d 249 (1st Cir. 1996), nn. 532, 

736

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), n. 1011

Rodriguez-Marin v. Rivera-Gonzales, 438 F.3d 72 (1st Cir. 2006), n. 1323

Roe v. City of Waterbury, 542 F.3d 31 (7th Cir. 2008), n. 747

Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011), n. 1565

Rojas v. Alexander’s Department Store, Inc., 924 F.2d 406 (2d Cir. 1990), n. 850

Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008), nn. 1167, 1179

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), pp. 3, 21–24; nn. 17, 155

Rosewell v. La Salle National Bank, 450 U.S. 503 (1981), n. 1545

Roska v. Sneddon, 437 F.3d 964 (10th Cir. 2006), n. 1291

Ross v. Jefferson County Department of Health, 695 F.3d 1183 (11th Cir. 2012), n. 1066

Ross v. Texas Education Agency, 409 F. App’x 765 (5th Cir. 2011), n. 801

Rost v. Steamboat Springs RE-2 School District, 511 F.3d 1114 (10th Cir. 2008), n. 367

Roth v. King, 449 F.3d 1272 (D.C. Cir. 2006), n. 1106

Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994), n. 545

Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), n. 82

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), p. 68; nn. 588–90

Ryburn v. Huff, 132 S. Ct. 987 (2012), nn. 500, 516, 1253, 1270–72

Sacramento, County of, v. Lewis, 523 U.S. 833 (1998), pp. 40–42, 58; nn. 85, 250, 319, 

322–26, 328, 376, 379, 385, 389, 412, 481–84, 1325

Safford Unified School District #1 v. Redding, 557 U.S. 364 (2009), p. 149; nn. 516, 1197, 

1219, 1237, 1248–51

Saginaw Housing Commission v. Bannum, Inc., 576 F.3d 620 (6th Cir. 2009), n. 1535

Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996), nn. 437–38

Samson v. California, 547 U.S. 843 (2006), n. 516

Samuels v. Mackell, 401 U.S. 66 (1971), p. 180; nn. 1492–93

San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522 (1987), 

n. 764

San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465 (1st Cir. 2012), n. 317

San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), nn. 1402, 1404, 1407, 1411

Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. 2012), n. 458

Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009), n. 815

Sandin v. Conner, 515 U.S. 472 (1995), p. 36; nn. 283–84

Santana v. City of Tulsa, 359 F.3d 1241 (10th Cir. 2004), n. 1383

Santiago v. Blair, 707 F.3d 984 (8th Cir. 2013), n. 631

Santiago v. New York State Department of Correctional Services, 945 F.2d 25 (2d Cir. 

1991), n. 91

Santosky v. Kramer, 455 U.S. 745 (1982), n. 1544

Saucier v. Katz, 533 U.S. 194 (2001), pp. 144, 151, 158–59; nn. 242, 401, 456, 1196–97, 

1208–11, 1232, 1273, 1275–76, 1278, 1324–25
Cases (alphabetical)

337

Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003), n. 728

Schaffer v. Weast, 546 U.S. 49 (2005), n. 82

Schaub v. Von Wald, 638 F.3d 905 (8th Cir. 2011), n. 1579

Schneckcloth v. Bustamonte, 412 U.S. 218 (1973), n. 516

Schneider v. City of Grand Junction Police Department, 717 F.3d 760 (10th Cir. 2013), 

nn. 821, 1028

Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), n. 140

Schwartz v. Booker, 702 F.3d 573 (10th Cir. 2012), n. 358

Schweiker v. Chilicky, 487 U.S. 412 (1988), p. 8; nn. 53–54

Scott v. Harris, 550 U.S. 372 (2007), pp. 50–53, 157; nn. 379, 388, 393, 408–12, 414–16, 

418–28, 429, 455, 457, 1318

Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), p. 48; nn. 396–97

Scott v. Taylor, 405 F.3d 1251 (11th Cir. 2005), n. 1193

Sealey v. Giltner, 197 F.3d 578 (2d Cir. 1999), n. 287

Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996), n. 367

See v. City of Seattle, 387 U.S. 541 (1967), n. 516

Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006), n. 296

Seminole Tribe v. Florida, 517 U.S. 44 (1996), n. 1047

Settles v. U.S. Parole Commission, 429 F.3d 1098 (D.C. Cir. 2005), nn. 793, 1044

Shakhnes v. Berlin, 689 F.3d 244 (2d Cir. 2012), n. 728

Shaw v. Leatherberry, 706 N.W. 2d 299 (Wis. 2005), n. 82

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), nn. 1007, 1011

Sheehan v. City and County of San Francisco, 743 F.3d 1211 (9th Cir. 2014), n. 407

Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999), n. 1011

Shelley v. Kraemer, 334 U.S. 1 (1948), n. 778

Sherman v. Four County Counseling Center, 987 F.2d 397 (7th Cir. 1993), n. 1223

Shmueli v. City of New York, 424 F.3d 231 (2d Cir. 2005), n. 1117

Sibley v. Lando, 437 F.3d 1067 (11th Cir. 2005), n. 1091

Siegert v. Gilley, 500 U.S. 226 (1991), nn. 1281, 1325

Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), nn. 1663–65

Simon v. City of New York, 727 F.3d 167 (2d Cir. 2013), nn. 1123, 1129

Sims, Estate of, v. County of Bureau, 506 F.3d 509 (7th Cir. 2007), n. 114

Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), n. 494

Singletary v. Pennsylvania Department of Corrections, 266 F.3d 186 (3d Cir. 2001), 

n. 1432

Singleton v. Wulff, 428 U.S. 106 (1976), n. 212

Sitzes v. City of West Memphis, 606 F.3d 461 (8th Cir. 2010), n. 334

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), n. 516

Skinner v. Switzer, 131 S. Ct. 1289 (2011), pp. 23–24, 164; nn. 129, 160, 163–65, 170, 172, 

346, 1370, 1372–73

Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir. 2005), n. 209

Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), n. 642

Slade v. Hampton Roads Regional Jail, 407 F.3d 243 (4th Cir. 2005), n. 99

Slater v. Clarke, 700 F.3d 1200 (9th Cir. 2012), n. 1123
Section 1983 Litigation

338

Smiley v. Alabama Department of Transportation, 778 F. Supp. 2d 1283 (M.D. Ala. 2011), 

n. 801

Smith v. Bray, 681 F.3d 888 (7th Cir. 2012), n. 831

Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142 (7th Cir. 1999), n. 852

Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), nn. 450, 454

Smith v. Maryland, 442 U.S. 735 (1979), n. 516

Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (1977), 

n. 1544

Smith v. Philadelphia Housing Authority, 107 F.3d 223 (3d Cir. 1997), n. 1659

Smith v. Robinson, 468 U.S. 992 (1984), pp. 30, 79; nn. 231, 234, 703, 712–13, 715–16

Smith v. Wade, 461 U.S. 30 (1983), p. 189; n. 1573

Smith, Estate of, v. Marasco, 430 F.3d 140 (3d Cir. 2005), n. 367

Smith, Estate of, v. Marasco, 318 F.3d 497 (3d Cir. 2003), n. 519

Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990), nn. 1163, 1164

Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. 2014), n. 1216

Snover v. City of Starke, 398 F. App’x 445 (11th Cir. 2010), n. 413

Snyder v. King, 745 F.3d 242 (7th Cir. 2014), n. 876

Soldal v. Cook County, 506 U.S. 56 (1992), n. 492

Sole v. Wyner, 551 U.S. 74 (2007), n. 1650

Solivan v. Dart, 897 F. Supp. 2d 694 (N.D. Ill. 2012), n. 1432

Sorlucco v. New York City Police Department, 971 F.2d 864 (2d Cir. 1992), pp. 104–06; 

nn. 927–29, 931–38

Sosna v. Iowa, 419 U.S. 393 (1975), n. 1544

Soto-Padro v. Public Buildings Authority, 675 F.3d 1 (1st Cir. 2012), n. 593

Sousa v. Roque, 578 F.3d 164 (2d Cir. 2009), n. 606

South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 

274 F.3d 771 (3d Cir. 2001), n. 728

South Dakota v. Opperman, 428 U.S. 364 (1976), n. 516

Speer v. City of Wynne, 276 F.3d 980 (8th Cir. 2002), n. 1033

Spencer v. Kemna, 523 U.S. 1 (1998), p. 166; n. 1380

Spiller v. Texas City, 130 F.3d 162 (5th Cir. 1997), n. 997

Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013), p. 181; nn. 1470, 1500, 1504–07

St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995), n. 439

St. Louis, City of, v. Praprotnik, 485 U.S. 112 (1988), pp. 100–02; nn. 864–65, 880–81, 

892–95, 897–98, 901

St. Louis, City of, v. Praprotnik, 798 F.2d 1168 (8th Cir. 1986), n. 893

Stanley v. Illinois, 405 U.S. 645 (1972), n. 1544

Stanton v. Sims, 134 S. Ct. 3 (2013), nn. 1197, 1237, 1253

Star Distributors Ltd. v. Marino, 613 F.2d 4 (2d Cir. 1980), nn. 1193–94

Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), n. 1028

State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), nn. 1585, 

1587–90

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), pp. 91–93; nn. 825–30

Steagald v. United States, 451 U.S. 204 (1981), nn. 500, 516
Cases (alphabetical)

339

Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010), n. 1214

Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), n. 1396

Steffel v. Thompson, 415 U.S. 452 (1974), n. 1493

Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), n. 748

Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003), nn. 1282, 1322

Stevens, Estate of, v. City of Green Bay, 105 F.3d 1169 (7th Cir. 1997), nn. 356, 367

Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007), n. 114

Stevenson v. City of Seat Pleasant, 743 F.3d 411 (4th Cir. 2014), n. 458

Stone v. Powell, 428 U.S. 465 (1976), p. 169; n. 1408

Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1989), n. 360

Stoner v. Wisconsin Department of Agriculture, Trade & Consumer Protection, 50 F.3d 

481 (7th Cir. 1995), n. 1064

Stump v. Sparkman, 435 U.S. 349 (1978), p. 130; nn. 1088–91, 1095–97

Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227 (1st Cir. 2007), n. 1214

Susan B. Anthony List v. Driehaus, No. 13-193, 2014 WL 2675871 (S. Ct. June 16, 2014), 

n. 223

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997), n. 1401

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), n. 1552

Sullivan v. School Board of Pinellas County, 773 F.2d 1182 (11th Cir. 1985), n. 1627

Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002), n. 80

Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980), 

p. 142; nn. 1181, 1190–93

Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), n. 876

Suter v. Artist M., 503 U.S. 347 (1992), p. 77; nn. 656, 685–86, 689–92, 720

Sutton v. Metropolitan Government of Nashville & Davidson County, 700 F.3d 865 (6th 

Cir. 2012), n. 507

Swarthout v. Cooke, 131 S. Ct. 859 (2011), nn. 267, 270, 284

Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), pp. 14–19; nn. 100–01, 1004

Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010), nn. 545, 548–49

System Management, Inc. v. Loiselle, 154 F. Supp. 2d 195 (D. Mass. 2001), n. 1618

Talbert v. Judiciary of New Jersey, 420 F. App’x 140 (3d Cir. 2011), n. 801

Tamas v. Department of Social & Health Services, 630 F.3d 833 (9th Cir. 2010), nn. 358, 

1164

Tapalian v. Tusino, 377 F.3d 1 (1st Cir. 2004), nn. 1579, 1594

Tarpley v. Greene, 684 F.2d 1 (D.C. Cir. 1982), n. 91

Tavarez v. Reno, 54 F.3d 109 (2d Cir. 1995), n. 74

Taylor v. Housing Authority of New Haven, 645 F.3d 152 (2d Cir. 2011), n. 728

T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010), n. 1028

Teesdale v. City of Chicago, 690 F.3d 829 (7th Cir. 2012), n. 883

Teller v. Fields, 280 F.3d 69 (2d Cir. 2000), n. 286

Tennessee v. Garner, 471 U.S. 1 (1985), pp. 48, 51; nn. 242, 391–95, 417, 960

Tenney v. Brandhove, 341 U.S. 367 (1951), nn. 1180–81

Terranova v. New York, 676 F.3d 305 (2d Cir. 2012), n. 453

Terranova v. Torres, 184 L. Ed. 2d 156 (2012), n. 453
Section 1983 Litigation

340

Terrell v. Larson, 396 F.3d 975 (8th Cir. 2005), n. 331

Terry v. Adams, 345 U.S. 461 (1953), n. 757

Terry v. Ohio, 392 U.S. 1 (1968), pp. 61–62; nn. 386, 508–09, 511

Tesch v. City of Green Lake, 157 F.3d 465 (7th Cir. 1998), n. 488

Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782 (1989), 

n. 1632

Thayer v. Chiczewski, 697 F.3d 514 (7th Cir. 2012), nn. 646, 654

Thelma D. v. Board of Education, 934 F.2d 929 (8th Cir. 1991), n. 962

Thomas v. Cook County Sheriff’s Department, 604 F.3d 293 (7th Cir. 2010), nn. 1033, 

1569

Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010), n. 429

Thomas v. Independence Township, 463 F.3d 285 (3d Cir. 2006), n. 1281

Thomas v. Texas Department of Family & Protective Services, 427 F. App’x 309 (5th Cir. 

2011), n. 801

Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006), n. 407

Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), nn. 392, 450

Thore v. Howe, 466 F.3d 173 (1st Cir. 2006), n. 248

Three Rivers Center for Independent Living v. Housing Authority of Pittsburgh, 382 F.3d 

412 (3d Cir. 2004), n. 729

Tinker v. Beasley, 429 F.3d 1324 (11th Cir. 2005), n. 1203

Tolan v. Cotton, 134 S. Ct. 1861 (2014), p. 156; nn. 1197, 1206, 1317, 1327

Toms v. Taft, 338 F.3d 519 (6th Cir. 2003), n. 1650

Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008), n. 1322

Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011), p. 55; nn. 446–49, 1212

Torres-Rivera v. Calderon-Serra, 412 F.3d 205 (1st Cir. 2005), n. 1182

Tower v. Glover, 467 U.S. 914 (1984), n. 743

Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), n. 819

Townsend v. Fuchs, 522 F.3d 765 (7th Cir. 2008), n. 285

Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010), n. 431

Trafalgar Corp. v. Miami Board of Commissioners, 519 F.3d 285 (6th Cir. 2008), n. 1403

Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983), n. 147

Trainor v. Hernandez, 431 U.S. 434 (1977), nn. 1490, 1499

Troxel v. Granville, 530 U.S. 57 (2000), n. 1544

Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Cir. 2002), n. 1650

Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir. 1985), n. 1467

Tsao v. Desert Palace, Inc., 698 F.3d 1128, (9th Cir. 2012), n. 850

Tully v. Barada, 599 F.3d 591 (7th Cir. 2010), n. 549

Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), n. 300

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), n. 1389

Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055 (9th Cir. 2006), n. 1698

Twin City Fire Insurance Co. v. Adkins, 400 F.3d 293 (6th Cir. 2005), n. 177

TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), n. 1579

United Mine Workers v. Gibbs of America, 383 U.S. 715 (1966), p. 24; nn. 181, 183

United States v. Arvizu, 534 U.S. 266 (2002), n. 513
Cases (alphabetical)

341

United States v. Cortez, 449 U.S. 411 (1981), n. 510

United States v. Dunn, 480 U.S. 294 (1987), n. 516

United States v. Knights, 534 U.S. 112 (2001), n. 516

United States v. Kubrick, 444 U.S. 111 (1979), n. 1435

United States v. Lanier, 520 U.S. 259 (1997), nn. 376, 1206

United States v. Leon, 468 U.S. 897 (1984), n. 1258

United States v. Mendenhall, 446 U.S. 544 (1980), n. 387

United States v. Miller, 425 U.S. 435 (1976), n. 516

United States v. Place, 462 U.S. 696 (1983), n. 516

United States v. Robinson, 414 U.S. 218 (1973), n. 516

United States v. Sokolow, 490 U.S. 1 (1989), n. 513

United States v. Stanley, 483 U.S. 669 (1987), p. 8; n. 52

United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991), n. 748

United States v. Walsh, 194 F.3d 37 (2d Cir. 1999), n. 487

United States v. Washington, 813 F.2d 1020 (9th Cir. 1987), n. 1640

University of Tennessee v. Elliott, 478 U.S. 788 (1986), p. 169; nn. 1412–13

Untalan v. City of Lorain, 430 F.3d 312 (6th Cir. 2005), n. 455

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), n. 1617

Utility Automation, 2000 Inc. v. Choctawhatchee Electric Cooperative, Inc., 298 F.3d 1238 

(11th Cir. 2002), n. 1647

Valance v. Wisel, 110 F.3d 1269 (7th Cir. 1997), n. 82

Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), n. 487

Van de Kamp v. Goldstein, 555 U.S. 335 (2009), pp. 133, 135–38; nn. 1114, 1131, 1146, 

1148–58

Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012), n. 65

Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995), n. 867

Varrone v. Bilotti, 123 F.3d 75 (2d Cir. 1997), n. 1292

Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692 (6th Cir. 1996), 

n. 1222

Velez v. Levy, 401 F.3d 75 (2d Cir. 2005), n. 318

Venegas v. Mitchell, 495 U.S. 82 (1990), nn. 1684, 1696

Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002), 

nn. 180, 1052

Vermont v. Brillon, 556 U.S. 81 (2009), n. 743

Vermont Agency of Natural Resources v. United States, 529 U.S. 765 (2000), pp. 87–88; 

nn. 794–97, 1044

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), nn. 359, 516

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), n. 1291

Virginia v. Moore, 553 U.S. 164 (2008), n. 499

Virginia Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632 (2011), n. 1052

Vitek v. Jones, 445 U.S. 480 (1980), nn. 269, 299

Vives v. City of New York, 524 F.3d 346 (2d Cir. 2008), n. 876

Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011), nn. 883, 994

Voyticky v. Village of Timberlake, 412 F.3d 669 (6th Cir. 2005), n. 249
Section 1983 Litigation

342

V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010), n. 1164

Wagner v. Bay City, 227 F.3d 316 (5th Cir. 2000), n. 463

Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007), nn. 519, 1203

Walker v. Calumet City, 565 F.3d 1031 (7th Cir. 2009), n. 1650

Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), n. 916

Walker v. Rowe, 791 F.2d 507 (7th Cir. 1986), n. 364

Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002), nn. 101, 144, 1396

Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997), n. 362

Wallace v. Kato, 549 U.S. 384 (2007), pp. 165, 173, 176; nn. 533, 543, 1374–75, 1433, 1435–

37, 1442–49, 1455–56, 1458, 1496

Wallingford v. Olson, 592 F.3d 888 (8th Cir. 2010), n. 429

Walsh v. Boston University, 661 F. Supp. 2d 91 (D. Mass. 2009), n. 1647

Walter v. Horseshoe Entertainment, 483 F. App’x 884 (5th Cir. 2012), n. 740

Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995), nn. 356, 359

Walton v. Gomez (In re Estate of Booker), 745 F.3d 405 (10th Cir. 2014), nn. 1009, 1028

Warlik v. Cross, 969 F.2d 303 (7th Cir. 1992), n. 1294

Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1996), n. 817

Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009), p. 138; nn. 1123, 1159–62

Warth v. Seldin, 422 U.S. 490 (1975), n. 211

Washington v. Davis, 426 U.S. 229 (1976), n. 86

Washington v. Glucksberg, 521 U.S. 702 (1997), nn. 322, 326, 338

Washington v. Harper, 494 U.S. 210 (1990), nn. 269, 302

Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), n. 1687

Waters v. Churchill, 511 U.S. 661 (1994), nn. 608–11

Watkins v. City of Battle Creek, 273 F.3d 682 (6th Cir. 2001), n. 463

Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010), n. 633

Watson v. Kansas City, 857 F.2d 690 (10th Cir. 1988), n. 937

Watts v. Florida International University, 495 F.3d 1289 (11th Cir. 2007), n. 114

Wayne v. Jarvis, 197 F.3d 1098 (11th Cir. 1999), n. 1431

Wax ’n Works v. City of St. Paul, 213 F.3d 1016 (8th Cir. 2000), n. 91

Webb v. County Board of Education, 471 U.S. 234 (1985), nn. 1615, 1685

Wereb v. Maui County, 830 F. Supp. 2d 1026 (D. Haw. 2011), n. 958

Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009), n. 1164

West v. Atkins, 487 U.S. 42 (1988), pp. 82, 84; nn. 79, 738, 742, 744, 750, 759

West Virginia University Hospitals v. Casey, 499 U.S. 83 (1991), n. 1686

Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996), n. 494

White v. Chambliss, 112 F.3d 731 (4th Cir. 1997), nn. 358, 1164

Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995), nn. 285, 290

Whitley v. Albers, 475 U.S. 312 (1986), pp. 57–58; nn. 244, 374, 464–65, 467–69, 477

Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), n. 815

Whitson v. Stone County Jail, 602 F.3d 920 (8th Cir. 2010), n. 1028

Whren v. United States, 517 U.S. 806 (1996), nn. 407, 497, 512

Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007), n. 618

Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), p. 77; nn. 678, 681–84
Cases (alphabetical)

343

Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991 (N.D. Ill. 2006), nn. 587, 806

Wilkie v. Robbins, 551 U.S. 537 (2007), p. 9; n. 58

Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008), n. 545

Wilkins v. Gaddy, 130 S. Ct. 1175 (2010), p. 58; nn. 473–76

Wilkinson v. Austin, 545 U.S. 209 (2005), p. 36; nn. 270, 292–94, 302

Wilkinson v. Dotson, 544 U.S. 74 (2005), pp. 163–64; nn. 1362, 1371

Will v. Michigan Department of State Police, 491 U.S. 58 (1989), pp. 87–89, 123; nn. 2, 

205, 787–88, 790–92, 804–05, 1041–42

Williams v. Alabama State University, 102 F.3d 1179 (11th Cir. 1997), nn. 1295, 1297

Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir. 1989), n. 1032

Williams v. Butler, 863 F.2d 1398 (8th Cir. 1988), n. 883

Williams v. Curtis, 631 F.3d 380 (6th Cir. 2011), n. 150

Williams v. Hanover Housing Authority, 113 F.3d 1294 (1st Cir. 1997), n. 1624

Williams v. Kaufman County, 352 F.3d 994 (5th Cir. 2003), n. 1594

Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 

(1985), p. 168; n. 1399

Willingham v. Crooke, 412 F.3d 553 (4th Cir. 2005), n. 1322

Willowbrook, Village of, v. Olech, 528 U.S. 562 (2000), p. 73; nn. 647–49

Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991), n. 29

Wilson v. Cook County, 742 F.3d 775 (7th Cir. 2014), n. 926

Wilson v. Flynn, 429 F.2d 465 (4th Cir. 2005), n. 1203

Wilson v. Garcia, 471 U.S. 261 (1985), p. 171; nn. 89, 1418

Wilson v. Johnson, 535 U.S. 262 (4th Cir. 2008), n. 1381

Wilson v. Layne, 526 U.S. 603 (1999), nn. 69, 1197, 1231, 1235–38, 1325

Wilson v. Town of Mendon, 294 F.3d 1 (1st Cir. 2002), n. 1011

Wilson v. Seiter, 501 U.S. 294 (1991), p. 66; nn. 550, 561–68

Wilson v. Spain, 209 F.3d 713 (8th Cir. 2000), n. 382

Wilton v. Seven Falls Co., 515 U.S. 277 (1995), p. 183; nn. 1524, 1526–27

Wimberly v. City of Clovis, 375 F. Supp. 2d 1120 (D.N.M. 2004), n. 852

Wisconsin Department of Corrections v. Schacht, 524 U.S. 381 (1998), n. 197

Witt v. West Virginia State Police, 633 F.3d 272 (4th Cir. 2011), n. 429

Wolff v. McDonnell, 418 U.S. 539 (1974), p. 36; nn. 270, 288–89

Wood v. Moss, 134 S. Ct. 2056 (2014), nn. 65, 71, 1197, 1200

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), n. 367

Wood v. Strickland, 420 U.S. 308 (1975), n. 1110

Woodford v. Ngo, 548 U.S. 81 (2006), pp. 166–67; nn. 1388–90

Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2001), n. 496

Woods v. Illinois Department of Children & Family Services, 710 F.3d 762 (7th Cir. 2013), 

n. 1420

Woods v. Rondout Valley Central School District Board of Education, 466 F.3d 232 (2d 

Cir. 2006), n. 1068

Wooley v. Maynard, 430 U.S. 705 (1977), n. 1493

Wooten v. Campbell, 49 F.3d 696 (11th Cir. 1995), n. 358

Worsham v. City of Pasadena, 881 F.2d 1336 (5th Cir. 1989), n. 902
Section 1983 Litigation

344

Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993), n. 1431

Wragg v. Village of Thornton, 604 F.3d 464 (7th Cir. 2010), n. 747

Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007), n. 819

Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987), 

pp. 76–77, 80; nn. 673–77, 725, 732

Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001), n. 1396

Wright v. Lovin, 32 F.3d 538 (11th Cir. 1994), n. 359

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989), pp. 101–02; nn. 905–07

Wyatt v. Cole, 504 U.S. 158 (1992), p. 146; nn. 9, 1221

Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993), n. 1222

Xiong v. Wagner, 700 F.3d 282 (7th Cir. 2012), nn. 358, 1164

Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991), n. 1347

Young, Ex parte, 209 U.S. 123 (1908), pp. 124–25, 200; nn. 1050, 1052, 1688

Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005), nn. 439, 821

Young v. County of Fulton, 160 F.3d 899 (2d Cir. 1998), n. 248

Young v. Harper, 520 U.S. 143 (1997), n. 290

Young v. Murphy, 90 F.3d 1225 (7th Cir. 1996), n. 1223

Youngberg v. Romeo, 457 U.S. 307 (1982), pp. 43; nn. 347–48, 354

Younger v. Harris, 401 U.S. 37 (1971), pp. 178, 180–82; nn. 1473, 1489–90, 1499–500, 

1503, 1510

Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883 (10th Cir. 1992), 

nn. 349, 358

Zablocki v. Redhail, 434 U.S. 374 (1978), n. 320

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), n. 820

Zalaski v. City of Hartford, 723 F.3d 382 (2d Cir. 2013), n. 1197

Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), nn. 1579, 1091

Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997), n. 1602

Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2007), nn. 1277, 1322

Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2003), n. 1389

Zinermon v. Burch, 494 U.S. 113 (1990), pp. 39; nn. 263–66, 298, 308, 311, 314–16, 1357

Zinna v. Congrove, 680 F.3d 1236 (10th Cir. 2012), n. 1638

Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir. 2008), n. 433

Zombro v. Baltimore Police Department, 868 F.3d 1364 (4th Cir. 1989), n. 240

Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993), n. 963
345

Table of Cases (by court)

Supreme Court of the United States

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), p. 170; nn. 1415–16 

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), nn. 141, 776

Akenbrandt v. Richards, 504 U.S. 689 (1992), n. 1543

Alabama v. Pugh, 438 U.S. 781 (1978), n. 1054

Alabama v. White, 496 U.S. 325 (1990), n. 513

Albright v. Oliver, 510 U.S. 266 (1994), pp. 63–65; nn. 90, 320–23, 376, 382, 530–31, 

535–42

Alden v. Maine, 527 U.S. 706 (1994), n. 860

Alexander v. Sandoval, 532 U.S. 275 (2001), p. 80; nn. 730–31

Allen v. McCurry, 449 U.S. 90 (1980), nn. 1404–06, 1409, 1487

Allen v. Wright, 468 U.S. 737 (1984), n. 211

American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999), nn. 734, 

745, 755, 760–01, 770

Anderson v. Creighton, 483 U.S. 635 (1987), p. 151; nn. 71, 1197, 1219, 1232–33, 1243, 

1253, 1266–69, 1276, 1298, 1301–02, 1307, 1316

Antoine v. Byers & Anderson, 508 U.S. 429 (1993), n. 1111

Arizona v. Gant, 556 U.S. 332 (2009), nn. 516, 1251

Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), nn. 1523, 1525

Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (2011), n. 211

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), p. 178; nn. 793, 1045, 1480–

81, 1556

Arkansas Writers’ Project v. Ragland, 481 U.S. 221 (1987), n. 199

Arlington Heights, Village of, v. Metropolitan Housing Development Corp., 429 U.S. 25 

(1977), n. 86

Armstrong v. Manzo, 380 U.S. 545 (1965), n. 300

Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), pp. 128, 148–49; nn. 71, 1086–87, 1197, 1201, 

1219, 1235, 1242–47, 1327, 1331–33

Ashcroft v. Iqbal, 556 U.S. 662 (2009), pp. 10, 13, 14, 16–21, 114–19, 153; nn. 41, 66–67, 95, 

115, 118–27, 131–32, 134, 138, 998, 1000–02, 1004–06, 1013–18, 1020–27, 1202, 1219, 

1283, 1285, 1287–90, 1296–98, 1343

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), p. 159; n. 1339

Astrue v. Ratliff, 130 S. Ct. 2321 (2010), n. 1696

Bailey v. United States, 133 S. Ct. 1031 (2013), n. 525

Baker v. McCollan, 443 U.S. 137 (1979), p. 33; nn. 90, 249, 253–54

Barry v. Barchi, 443 U.S. 55 (1979), n. 308

Baze v. Rees, 128 S. Ct. 1520 (2008), n. 1365

Beacon Theatres v. Westover, 359 U.S. 500 (1959), n. 30

Behrens v. Pelletier, 516 U.S. 299 (1996), p. 160; nn. 1195, 1293, 1303–04, 1341, 1344–45, 

1347–48
Section 1983 Litigation

346

Bell v. Burson, 402 U.S. 535 (1971), n. 276

Bell v. Wolfish, 441 U.S. 520 (1979), pp. 58–60; nn. 244, 372, 407, 479, 490

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), pp. 13–21, 114, 117, 153; nn. 94, 

102–05, 107–09, 114, 133, 145, 999, 1000, 1003–04, 1019, 1284

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), pp. 7–18, 153; nn. 40, 44–45, 

116

Blanchard v. Bergeron, 489 U.S. 87 (1989), n. 1683

Blessing v. Freestone, 520 U.S. 329 (1997), p. 78; nn. 657–61, 693, 695–96, 702, 720

Blum v. Stenson, 465 U.S. 886 (1984), nn. 18, 1615, 1653, 1674–75, 1687

Blum v. Yaretsky, 457 U.S. 991 (1982), nn. 754, 763, 768, 773, 775

BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), nn. 322, 1587–88, 1590

Board of County Commissioners v. Brown, 520 U.S. 397 (1997), p. 112; nn. 835–36, 868, 

870, 924, 983–94

Board of Education of Independent School District No. 92 Pottawatomie County v. Earls, 

536 U.S. 822 (2002), n. 516

Board of Regents v. Roth, 408 U.S. 564 (1972), pp. 33, 35; nn. 261–62, 272–73

Board of Regents of University of New York v. Tomanio, 446 U.S. 478 (1980), n. 1456

Bogan v. Scott-Harris, 523 U.S. 44 (1998), p. 141; nn. 1180–82, 1184–87

Bond v. United States, 529 U.S. 334 (2000), n. 516

Booth v. Churner, 532 U.S. 731 (2001), p. 166; n. 1385

Boyd v. United States, 116 U.S. 616 (1886), p. 60; n. 493

Bradley v. Fisher, 80 U.S. 335 (1872), n. 1088

Brady v. Maryland, 373 U.S. 83 (1963), pp. 42, 93, 111; nn. 339, 833, 966, 1147

Brandon v. Holt, 469 U.S. 464 (1985), nn. 838, 851

Branti v. Finkel, 445 U.S. 507 (1980), p. 68; nn. 585–87

Brendelin v. California, 551 U.S. 249 (2007), n. 388

Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001), 

p. 85; nn. 734, 749–50, 784–85

Brigham City v. Stuart, 547 U.S. 398 (2006), nn. 500, 516

Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), n. 1527

Briscoe v. LaHue, 460 U.S. 325 (1983), p. 139; nn. 1165–67

Brosseau v. Haugen, 543 U.S. 194 (2004), nn. 1197, 1219, 1232, 1275

Brower v. County of Inyo, 489 U.S. 593 (1989), nn. 383–84, 388

Brown v. Plata, 131 S. Ct. 1910 (2011), p. 192; nn. 556, 1607–10

Brown v. Western Railway of Alabama, 338 U.S. 294 (1949), n. 202

Buckhannon Board & Care Home v. West Virginia Department of Health & Human 

Resources, 532 U.S. 598 (2001), p. 197; nn. 1646–48

Buckley v. Fitzsimmons, 509 U.S. 259 (1993), pp. 134–36; nn. 1115, 1124–26, 1130, 1139–

43

Bumper v. North Carolina, 391 U.S. 543 (1968), n. 516

Burford v. Sun Oil Co., 319 U.S. 315 (1943), pp. 178, 182, 184–85; nn. 1475, 1530, 1532–36

Burlington, City of, v. Dague, 505 U.S. 557 (1992), n. 1678

Burnett v. Grattan, 468 U.S. 42 (1984), nn. 9, 1419

Burns v. Reed, 500 U.S. 478 (1991), pp. 134, 136; nn. 1127, 1132–38
Cases (by court)

347

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), p. 83; n. 752

Bush v. Lucas, 462 U.S. 367 (1983), p. 8; nn. 49–50

Butz v. Economou, 438 U.S. 478 (1978), p. 131; nn. 70, 1107–08

Caban v. Mohammed, 441 U.S. 380 (1979), n. 1544

California v. Carney, 471 U.S. 386 (1980), n. 516

California v. Ciraolo, 476 U.S. 207 (1986), n. 516

California v. Grace Brethren Church, 457 U.S. 393 (1982), n. 1545

California v. Greenwood, 486 U.S. 35 (1988), n. 516

California v. Hodari D., 499 U.S. 621 (1991), n. 387

Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1987), n. 516

Camreta v. Green, 131 S. Ct. 2020 (2011), nn. 1327, 1331

Canton, City of, v. Harris, 489 U.S. 378 (1989), pp. 107–09, 111–02; nn. 835–36, 866, 870–

01, 946–50, 954–56, 959–61

Carey v. Piphus, 435 U.S. 247 (1978), pp. 187–88; nn. 1554, 1556–60

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009), n. 184

Carlson v. Green, 446 U.S. 14 (1980), pp. 7–11; nn. 47–48, 62, 78

Carroll v. United States, 267 U.S. 132 (1925), n. 516

Castle Rock, Town of, v. Gonzales, 545 U.S. 748 (2005), nn. 280–81

Chambers v. Maroney, 399 U.S. 42 (1970), n. 516

Chandler v. Miller, 520 U.S. 305 (1997), n. 516

Chapman v. Houston Welfare Rights Organization, 441 U.S. 600 (1979), nn. 90, 152

Chappell v. Wallace, 462 U.S. 296 (1983), p. 8; n. 51

Chardon v. Fernandez, 454 U.S. 6 (1981), n. 1451

Chauffers Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990), nn. 25–26

Chicago, City of, v. International College of Surgeons, 522 U.S. 156 (1997), p. 25; nn. 189, 

196

Chimel v. California, 395 U.S. 752 (1969), n. 516

Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), n. 1627

Clark v. Jeter, 486 U.S. 456 (1988), n. 1544

Cleavinger v. Saxner, 474 U.S. 193 (1985), p. 132; nn. 1109–10

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), nn. 268, 271, 279, 303, 

305

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), n. 1341

Collins v. City of Harker Heights, 503 U.S. 115 (1992), pp. 33, 45, 98; nn. 250, 258–60, 322, 

327, 363, 368, 873–74, 953

Colorado v. Bertine, 479 U.S. 367 (1987), n. 516

Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), pp. 178, 

180–83; nn. 1470–71, 1474, 1511, 1514–19, 1527, 1540

Conley v. Gibson, 355 U.S. 41 (1957), pp. 15, 18; n. 106

Conn v. Gabbert, 526 U.S. 286 (1999), n. 1325

Connick v. Meyers, 461 U.S. 138 (1983), nn. 600, 602–04, 607, 624

Connick v. Thompson, 131 S. Ct. 1350 (2011), pp. 109–12; nn. 866, 924, 949, 961, 965, 

967–81

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), p. 9; nn. 56–57
Section 1983 Litigation

348

Crawford-El v. Britton, 523 U.S. 574 (1998), pp. 152, 155; nn. 82, 140, 1204, 1279–81, 

1309–15

Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006), n. 211

Dairy Queen v. Wood, 369 U.S. 469 (1962), n. 30

Daniels v. Williams, 474 U.S. 327 (1986), nn. 85, 263, 309

Davidson v. Cannon, 474 U.S. 344 (1986), n. 85

Davis v. Passman, 442 U.S. 228 (1979), pp. 7, 10; nn. 42–46

Davis v. Scherer, 468 U.S. 183 (1984), nn. 1197, 1199

Davis v. United States, 131 S. Ct. 2419 (2011), n. 860

Deakins v. Monaghan, 484 U.S. 193 (1988), p. 180; nn. 1494–95

Delaware v. Prouse, 440 U.S. 648 (1979), n. 516

Dennis v. Higgins, 498 U.S. 439 (1991), p. 29; nn. 226–27

Dennis v. Sparks, 449 U.S. 24 (1980), p. 85; nn. 141, 776–78

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), 

pp. 43–45; nn. 250, 351–54, 356–57, 360, 365–66

Devenpeck v. Alford, 543 U.S. 146 (2004), n. 498

District Attorney’s Office v. Osborne, 557 U.S. 52 (2009), pp. 42–43, 162; nn. 321, 336–38, 

340–44, 346, 1358–59

District of Columbia v. Carter, 409 U.S. 418 (1973), nn. 39, 735

District of Columbia v. Heller, 554 U.S. 570 (2008), n. 225

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), p. 22; nn. 17, 156

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), n. 1493

Dow Chemical Co. v. United States, 476 U.S. 227 (1986), n. 516

Duryea, Borough of, v. Guarnieri, 131 S. Ct. 2488 (2011), n. 602

Edelman v. Jordan, 415 U.S. 651 (1974), p. 125; nn. 1049, 1073

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), n. 750

Edwards v. Balisok, 520 U.S. 641 (1997), p. 165; nn. 1376–77

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), n. 210

Elrod v. Burns, 427 U.S. 347 (1976), p. 68; n. 584

England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), p. 179; 

nn. 1482–87

Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), p. 74; nn. 650–52

Erickson v. Pardus, 551 U.S. 89 (2007), pp. 16, 21; nn. 96, 101, 110–13, 147–49

Estelle v. Gamble, 429 U.S. 97 (1976), pp. 33, 66–67; nn. 87–88, 249, 251–52, 354, 462, 

554–56

Evans v. Jeff D., 475 U.S. 717 (1986), p. 201; nn. 1695–97

Exxon Mobil Corp. v. Allapattah, 545 U.S. 546 (2005), n. 187

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), pp. 22–24; 

nn. 157–58, 160–63, 173–75

Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), n. 1577

Fair Assessment in Real Estate v. McNary, 454 U.S. 100 (1981), n. 1545

Farmer v. Brennan, 511 U.S. 825 (1994), pp. 67, 107; nn. 354, 551–53, 572–79, 951–52

Farrar v. Hobby, 506 U.S. 103 (1992), p. 196; nn. 1635–38, 1643

FDIC v. Meyer, 510 U.S. 471 (1994), p. 9; nn. 41, 55
Cases (by court)

349

Felder v. Casey, 487 U.S. 131 (1988), p. 167; nn. 199, 201–02, 205, 1397

Ferguson v. City of Charleston, 532 U.S. 67 (2001), n. 516

Fernandez v. California, 134 S. Ct. 1126 (2014), n. 516

Filarsky v. Delia, 132 S. Ct. 1657 (2012), pp. 146–47; nn. 1225–29

Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009), pp. 30–31; nn. 233–40

Flagg Brothers v. Brooks, 436 U.S. 149 (1978), nn. 79, 733, 756, 765, 769, 780

Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012), n. 514

Florida v. Harris, 133 S. Ct. 1409 (2013), n. 516

Florida v. J.L., 529 U.S. 266 (2000), n. 513

Florida v. Jardines, 133 S. Ct. 1409 (2013), n. 516

Florida v. Jimeno, 500 U.S. 248 (1991), n. 516

Florida v. Riley, 488 U.S. 445 (1989), n. 516

Florida Department of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981), 

n. 1073

Forrester v. White, 484 U.S. 219 (1988), p. 130; nn. 1085, 1100–02

Fox v. Vice, 131 S. Ct. 2205 (2011), nn. 1613, 1615, 1627, 1630–31, 1657–58, 1671

Frew v. Hawkins, 540 U.S. 431 (2004), n. 1057

Garcetti v. Ceballos, 547 U.S. 410 (2006), pp. 70–71; nn. 599, 612–14

Georgia v. McCollum, 505 U.S. 42 (1992), n. 750

Georgia v. Randolph, 547 U.S. 103 (2006), n. 516

Gerstein v. Pugh, 420 U.S. 103 (1975), nn. 499, 1441

Gibson v. Berryhill, 411 U.S. 564 (1973), n. 1510

Gilbert v. Homar, 520 U.S. 924 (1997), nn. 304, 306, 308

Goldberg v. Kelly, 397 U.S. 254 (1970), n. 274

Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989), pp. 30, 76, 77; 

nn. 228–29, 669, 671–72

Gomez v. Toledo, 446 U.S. 635 (1980), nn. 79, 1281

Gonzaga University v. Doe, 536 U.S. 273 (2002), pp. 78, 80; nn. 656–57, 697, 699–701, 

720–23

Goss v. Lopez, 419 U.S. 565 (1975), n. 277

Graham v. Connor, 490 U.S. 386 (1989), pp. 32, 49, 56, 58, 60, 151; nn. 90, 241–44, 371–72, 

376–77, 380–81, 383–84, 398–404, 478, 480, 1274

Graham v. Richardson, 403 U.S. 365 (1971), n. 206

Green v. Mansour, 474 U.S. 64 (1985), n. 1055

Greene v. Lindsey, 456 U.S. 444 (1982), n. 300

Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), 

n. 284

Groh v. Ramirez, 540 U.S. 551 (2004), nn. 1197, 1219, 1264

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), n. 1529

Hafer v. Melo, 502 U.S. 21 (1991), pp. 87, 94, 123; nn. 789, 842, 844–45, 1043, 1062–63

Haines v. Kerner, 404 U.S. 519 (1970), n. 147

Handt v. Lynch, 681 F.3d 939 (2012), n. 1198

Hanrahan v. Hampton, 446 U.S. 754 (1980), n. 1634

Hans v. Louisiana, 134 U.S. 1 (1890), n. 1047
Section 1983 Litigation

350

Hardin v. Straub, 490 U.S. 536 (1989), n. 9

Haring v. Prosise, 462 U.S. 306 (1983), n. 1404

Harlow v. Fitzgerald, 457 U.S. 800 (1982), p. 155; nn. 69, 1197, 1281, 1302, 1306, 1321

Harris County Commissioners Court v. Moore, 420 U.S. 77 (1975), n. 1478

Harrison v. NAACP, 360 U.S. 167 (1959), n. 1488

Hartman v. Moore, 547 U.S. 250 (2006), pp. 72–73; nn. 82, 639–40, 1123

Haywood v. Drown, 556 U.S. 729 (2009), nn. 199, 202, 205

Heck v. Humphrey, 512 U.S. 477 (1994), pp. 10, 163–66, 173; nn. 72, 740, 1366, 1439–40, 

1496

Helling v. McKinney, 509 U.S. 25 (1993), p. 66; nn. 569–71

Hensley v. Eckerhart, 461 U.S. 424 (1983), p. 196; nn. 1615, 1619, 1632, 1642–45, 1653, 

1656, 1670, 1676

Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994), n. 1072

Hewitt v. Helms, 482 U.S. 755 (1987), n. 1633

Hibbs v. Winn, 542 U.S. 88 (2004), pp. 185–86; n. 1547

Hicks v. Miranda, 422 U.S. 332 (1975), n. 1493

Hill v. McDonough, 547 U.S. 573 (2006), nn. 101, 1364

Hope v. Pelzer, 536 U.S. 730 (2002), pp. 147–48; nn. 1197, 1206, 1233, 1236, 1239–41, 1325

Howlett v. Rose, 496 U.S. 356 (1990), p. 26; nn. 199, 203–05, 860

Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976), n. 766

Hudson v. McMillian, 503 U.S. 1 (1992), p. 58; nn. 244, 374, 389, 464, 466, 469–72, 580–83

Hudson v. Michigan, 547 U.S. 586 (2006), pp. 2–3; nn. 13–16, 1614

Hudson v. Palmer, 468 U.S. 517 (1984), nn. 263, 309, 1354

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), p. 180; nn. 1490, 1497–99

Hughes v. Rowe, 449 U.S. 5 (1980), nn. 147, 1627

Hui v. Castaneda, 130 S. Ct. 1845 (2010), n. 59

Hunter v. Bryant, 502 U.S. 224 (1991), p. 155; nn. 1197, 1268, 1277, 1298–1301, 1321

Hutto v. Finney, 437 U.S. 678 (1978), nn. 1056, 1058, 1689

Illinois v. Caballes, 543 U.S. 405 (2006), n. 516

Illinois v. Gates, 462 U.S. 213 (1983), n. 516

Illinois v. Lafayette, 462 U.S. 640 (1983), n. 516

Illinois v. Lidster, 540 U.S. 419 (2001), n. 516

Illinois v. Wardlow, 528 U.S. 119 (2000), n. 513

Imbler v. Pachtman, 424 U.S. 409 (1976), pp. 133, 136–37; nn. 1114, 1119–22

Immigration & Naturalization Service v. Delgado, 466 U.S. 210 (1984), n. 387

Indianapolis, City of, v. Edmond, 531 U.S. 32 (2000), n. 516

Ingraham v. Wright, 430 U.S. 651 (1977), n. 360

Inyo County, California v. Paiute-Shoshone Indians, 538 U.S. 701 (2003), n. 208

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), nn. 734, 756, 758, 767, 769, 

773–75

Jett v. Dallas Independent School District, 491 U.S. 701 (1989), pp. 13, 100–01; nn. 91–92, 

881, 895, 899–900

Jinks v. Richland County, South Carolina, 538 U.S. 456 (2003), nn. 186, 191–92, 194

Johnson v. De Grandy, 512 U.S. 997 (1994), n. 177
Cases (by court)

351

Johnson v. Fankel, 520 U.S. 911 (1997), n. 205

Johnson v. Jones, 515 U.S. 304 (1995), nn. 1341–42

Jones v. Bock, 549 U.S. 199 (2007), p. 167; nn. 101, 1391–94

Jones v. Flowers, 547 U.S. 164 (2006), n. 300

Jones v. United States, 132 S. Ct. 945 (2012), n. 516

Juidice v. Vail, 430 U.S. 327 (1977), nn. 1490, 1499

Kalina v. Fletcher, 522 U.S. 118 (1997), pp. 135–36; nn. 1084, 1144

Karo v. United States, 468 U.S. 705 (1984), n. 516

Katz v. United States, 389 U.S. 347 (1967), n. 516

Kay v. Ehrler, 499 U.S. 432 (1991), n. 1652

Kentucky v. Graham, 473 U.S. 159 (1985), p. 94; nn. 838–40, 851

Kentucky v. King, 131 S. Ct. 1849 (2011), n. 516

Kentucky Department of Corrections v. Thompson, 490 U.S. 454 (1989), n. 267

Knotts v. United States, 460 U.S. 276 (1983), n. 516

Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999), n. 1576

Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), n. 1405

Krupski v. Costa Cruciere, 130 S. Ct. 2485 (2010), p. 172; nn. 1424, 1426–30

Kugler v. Helfant, 421 U.S. 117 (1975), n. 1509

Kyllo v. United States, 533 U.S. 27 (2001), n. 516

Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498 (1972), n. 1479

Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391 (1979), 

pp. 126, 141; nn. 1071–72, 1188–89

Lance v. Dennis, 546 U.S. 459 (2006), p. 24; nn. 160–61, 164, 178–79

Lane v. Franks, 189 L. Ed. 2d 312 (2014), pp. 70–71; nn. 603–05, 615–17, 625, 1231, 1237

Lapides v. Board of Regents, 535 U.S. 613 (2002), nn. 198, 1074–75

Lassiter v. Department of Social Services, 452 U.S. 18 (1981), n. 1544

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 

(1993), pp. 14–16, 18–20, 97, 113–14; nn. 97–98, 101, 135, 137, 859–60, 995–97

Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), n. 751

Lefemine v. Wideman, 133 S. Ct. 9 (2012), nn. 1622, 1635

Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502 (1982), n. 1544

Lehr v. Robertson, 463 U.S. 248 (1983), n. 1544

Levin v. Commerce Energy, Inc., 130 S. Ct. 2323 (2010), p. 185; nn. 1548–50

Little v. Streater, 452 U.S. 1 (1981), n. 1544

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), nn. 307, 1356

Los Angeles v. Heller, 475 U.S. 796 (1986), p. 120; nn. 1030–31

Los Angeles, City of, v. Lyons, 461 U.S. 95 (1983), p. 27; nn. 213–20

Los Angeles County v. Humphries, 131 S. Ct. 447 (2010), pp. 91, 96; nn. 2, 12, 822–24, 

853–56

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), p. 85; nn. 737–38, 776, 781–83

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), n. 211

Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 (2001), n. 282

Maher v. Gagne, 448 U.S. 122 (1980), n. 1639

Maine v. Thiboutot, 448 U.S. 1 (1980), p. 75; nn. 655, 1614
Section 1983 Litigation

352

Malley v. Briggs, 475 U.S. 335 (1986), p. 150; nn. 69, 816, 1197, 1219, 1243, 1253–57

Marek v. Chesny, 473 U.S. 1 (1985), pp. 200–01; nn. 1691–93

Martinez v. California, 444 U.S. 277 (1980), nn. 814, 819

Maryland v. Pringle, 540 U.S. 366 (2003), n. 495

Mathews v. Eldridge, 424 U.S. 319 (1976), pp. 37–38; nn. 275, 301–02

McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), n. 225

McDonald v. City of West Branch, 466 U.S. 284 (1984), p. 170; n. 1414

McMillian v. Monroe County, 520 U.S. 781 (1997), pp. 89, 102–03; nn. 808–12, 914–15, 

917–21

Memphis Community School District v. Stachura, 477 U.S. 299 (1986), pp. 187–88; nn. 

1551, 1555–56, 1561–64

Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 (1978), n. 278

Menonite Board of Missions v. Adams, 462 U.S. 791 (1983), n. 300

Messerschmidt v. Millender, 132 S. Ct. 1235 (2012), pp. 145, 150–01; nn. 1197, 1201, 

1215–17, 1219, 1259–65

Michigan v. DeFillippo, 443 U.S. 31 (1979), n. 495

Michigan v. Fisher, 130 S. Ct. 546 (2009), nn. 500, 516

Michigan v. Summers, 452 U.S. 692 (1981), p. 63; nn. 523, 525

Michigan v. Tyler, 436 U.S. 499 (1978), n. 516

Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), n. 516

Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982), 

pp. 180–81; nn. 1491, 1500–01

Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), 

p. 79; nn. 656, 704–05, 708–11

Migra v. Warren City School District, 465 U.S. 75 (1984), nn. 1404, 1410

Milliken v. Bradley, 433 U.S. 267 (1977), n. 1051

Mills v. Habluetzel, 456 U.S. 91 (1982), n. 1544

Minneci v. Pollard, 132 S. Ct. 617 (2012), p. 9; nn. 60–64

Mireles v. Waco, 502 U.S. 9 (1991), p. 130; nn. 1088, 1091, 1098–99

Missouri v. Jenkins, 491 U.S. 274 (1989), nn. 1666, 1677, 1690

Missouri v. Jenkins, 495 U.S. 33 (1990), n. 1065

Mitchell v. Forsyth, 472 U.S. 511 (1985), nn. 1196, 1305, 1319, 1321, 1341

Monell v. Department of Social Services, 436 U.S. 658 (1978), pp. 2, 89, 96–99, 103, 113; 

nn. 2–3, 10–12, 239, 802–03, 838, 849, 852, 856, 861, 922–23, 1006, 1033, 1065, 1417

Monroe v. Pape, 365 U.S. 167 (1961), pp. 1–2; nn. 2, 4–8, 746, 816, 1352

Monterey, City of, v. Del Monte Dunes, 526 U.S. 687 (1999), n. 27

Moor v. County of Alameda, 411 U.S. 693 (1973), n. 1417

Moore v. City of East Cleveland, 431 U.S. 494 (1977), n. 320

Moore v. Sims, 442 U.S. 415 (1979), nn. 1490, 1498–99, 1510

Moose Lodge v. Irvis, 407 U.S. 163 (1972), n. 753

Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), 

p. 183; nn. 1512–13, 1520–22, 1527–28

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977), p. 126; 

nn. 592, 628, 1065–66, 1069–70
Cases (by court)

353

Muehler v. Mena, 544 U.S. 93 (2005), pp. 62–63; nn. 521–22, 524, 526–29

Muhammad v. Close, 540 U.S. 749 (2004), p. 165; nn. 1378–79

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), n. 300

National Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179 (1988), p. 85; nn. 764, 772, 779

National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582 (1995), 

nn. 199, 205, 1545

National Railroad Passengers Corp. v. Morgan, 536 U.S. 101 (2002), p. 176; n. 1453

National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), n. 516

Nelson v. Campbell, 541 U.S. 637 (2004), pp. 163–64; nn. 1363–64, 1367–68

New Jersey v. T.L.O., 469 U.S. 325 (1985), n. 516

New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350 (1989), p. 184; 

nn. 1499, 1531, 1537–40

New York v. Burger, 482 U.S. 691 (1987), n. 516

Newport, City of, v. Fact Concerts, Inc., 453 U.S. 247 (1981), pp. 97, 189; nn. 862, 875, 887, 

989, 1581

Newton, Town of, v. Rumery, 480 U.S. 386 (1985), p. 191; n. 1596

Northern Insurance Co. of New York v. Chatham County, 547 U.S. 189 (2006), n. 1065

O’Connor v. Ortega, 480 U.S. 709 (1987), n. 516

O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996), p. 69; nn. 597–98

O’Shea v. Littleton, 414 U.S. 488 (1974), n. 220

Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986), 

p. 181; nn. 1502–03

Oklahoma City, City of, v. Tuttle, 471 U.S. 808 (1985), nn. 90, 948

Oliver v. United States, 466 U.S. 170 (1984), n. 516

Ontario, City of, v. Quon, 130 S. Ct. 2619 (2010), n. 516

Orr v. Orr, 440 U.S. 268 (1979), n. 1544

Ortiz v. Jordan, 131 S. Ct. 884 (2011), pp. 157, 161; nn. 1196, 1293–34, 1320, 1341–42, 

1349–51

Owen v. City of Independence, 445 U.S. 622 (1980), pp. 97, 122; nn. 857–58, 875, 989, 

1039–40

Owen v. Okure, 488 U.S. 235 (1989), n. 1420

Palazzolo v. Rhode Island, 533 U.S. 606 (2001), n. 1400

Parratt v. Taylor, 451 U.S. 527 (1981), pp. 38–39, 162; nn. 83–84, 263, 309, 312, 1354, 1360

Patsy v. Board of Regents, 457 U.S. 496 (1982), pp. 43, 166; nn. 2, 199, 1382, 1398, 1503

Paul v. Davis, 424 U.S. 693 (1976), pp. 33, 36; nn. 250, 255–57, 268, 295–96

Payton v. New York, 445 U.S. 573 (1980), nn. 500, 516

Pearson v. Callahan, 555 U.S. 223 (2009), pp. 158–59; nn. 71, 1197, 1200, 1208, 1213, 1219, 

1235, 1273, 1324, 1326, 1328–32, 1334–38, 1340

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), pp. 99–100; nn. 865, 880, 882, 884–91

Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), pp. 75, 80; nn. 660, 

662–68, 724–25

Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984), p. 125; nn. 1059–61

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986), 

n. 1675
Section 1983 Litigation

354

Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987), nn. 1490, 1499, 1510

Perdue v. Kenny A., 130 S. Ct. 1662 (2010), nn. 18, 1613, 1653–56, 1674, 1676–79, 1698

Perez v. Ledesma, 401 U.S. 82 (1971), n. 1509

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), n. 86

Phillip Morris USA v. Williams, 549 U.S. 346 (2007), p. 190; nn. 1591–93

Pickering v. Board of Education, 391 U.S. 563 (1968), pp. 71–72; nn. 601, 622–23

Pickett v. Brown, 462 U.S. 1 (1983), n. 1544

Pierson v. Ray, 386 U.S. 547 (1967), p. 129; nn. 1088, 1092–94

Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), nn. 401, 423, 1196, 1231–32, 1235, 1244, 

1275, 1327, 1331

Plyler v. Doe, 457 U.S. 202 (1982), n. 206

Polk County v. Dodson, 454 U.S. 312 (1981), pp. 81–82; n. 741

Porter v. Nussle, 534 U.S. 516 (2002), p. 166; nn. 1386–87

Preiser v. Rodriguez, 411 U.S. 475 (1973), pp. 163, 165; n. 1361

Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), 

p. 127; nn. 1076–78

Pulliam v. Allen, 466 U.S. 522 (1984), p. 131; n. 1103

Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996), nn. 1541–42

Quern v. Jordan, 440 U.S. 332 (1979), nn. 2, 1048

Quilloin v. Walcott, 434 U.S. 246 (1978), n. 1544

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), p. 178; nn. 1472, 1477

Rancho Palos Verdes, City of, v. Abrams, 544 U.S. 113 (2005), p. 79; nn. 237, 656, 702–03, 

718–20

Rankin v. McPherson, 483 U.S. 378 (1987), n. 625

Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002), nn. 191, 193

Regents of the University of California v. Doe, 519 U.S. 425 (1997), n. 1049

Rehberg v. Paulk, 132 S. Ct. 1497 (2012), pp. 139–40; nn. 1079–84, 1167–78

Reichle v. Howards, 132 S. Ct. 2088 (2012), p. 73; nn. 65, 71, 641–46, 1232, 1237–38, 1244, 

1327, 1332

Rendell-Baker v. Kohn, 457 U.S. 830 (1982), nn. 754, 762, 773–75

Revere, City of, v. Massachusetts General Hospital, 463 U.S. 239 (1983), p. 57; nn. 459–61

Richardson v. McKnight, 521 U.S. 399 (1997), p. 145; nn. 1220, 1224

Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008), n. 1666

Riley v. California, 189 L. Ed. 2d 430 (2014), n. 516

Rivera v. Illinois, 556 U.S. 148 (2009), n. 332

Riverside, City of, v. Rivera, 477 U.S. 561 (1986), p. 199; nn. 1680–82

Riverside, County of, v. McLaughlin, 500 U.S. 44 (1991), nn. 499, 1441

Rizzo v. Goode, 423 U.S. 362 (1976), nn. 220, 1011

Robertson v. Wegmann, 436 U.S. 584 (1978), p. 177; nn. 9, 1459–64

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), pp. 3, 21–24; nn. 17, 155

Rosewell v. La Salle National Bank, 450 U.S. 503 (1981), n. 1545

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), p. 68; nn. 588–90

Ryburn v. Huff, 132 S. Ct. 987 (2012), nn. 500, 516, 1253, 1270–72
Cases (by court)

355

Sacramento, County of, v. Lewis, 523 U.S. 833 (1998), pp. 40–42, 58; nn. 85, 250, 319, 

322–26, 328, 376, 379, 385, 389, 412, 481–84, 1325

Safford Unified School District #1 v. Redding, 557 U.S. 364 (2009), p. 149; nn. 516, 1197, 

1219, 1237, 1248–51

Samson v. California, 547 U.S. 843 (2006), n. 516

Samuels v. Mackell, 401 U.S. 66 (1971), p. 180; nn. 1492–93

San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522 (1987), 

n. 764

San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), nn. 1402, 1404, 1407, 1411

Sandin v. Conner, 515 U.S. 472 (1995), p. 36; nn. 283–84

Santosky v. Kramer, 455 U.S. 745 (1982), n. 1544

Saucier v. Katz, 533 U.S. 194 (2001), pp. 144, 151, 158–59; nn. 242, 401, 456, 1196–97, 

1208–11, 1232, 1273, 1275–76, 1278, 1324–25

Schaffer v. Weast, 546 U.S. 49 (2005), n. 82

Schneckcloth v. Bustamonte, 412 U.S. 218 (1973), n. 516

Schweiker v. Chilicky, 487 U.S. 412 (1988), p. 8; nn. 53–54

Scott v. Harris, 550 U.S. 372 (2007), pp. 50–53, 157; nn. 379, 388, 393, 408–12, 414–16, 

418–28, 429, 455, 457, 1318

See v. City of Seattle, 387 U.S. 541 (1967), n. 516

Seminole Tribe v. Florida, 517 U.S. 44 (1996), n. 1047

Shelley v. Kraemer, 334 U.S. 1 (1948), n. 778

Siegert v. Gilley, 500 U.S. 226 (1991), nn. 1281, 1325

Singleton v. Wulff, 428 U.S. 106 (1976), n. 212

Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989), n. 516

Skinner v. Switzer, 131 S. Ct. 1289 (2011), pp. 23–24, 164; nn. 129, 160, 163–65, 170, 172, 

346, 1370, 1372–73

Smith v. Maryland, 442 U.S. 735 (1979), n. 516

Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (1977), 

n. 1544

Smith v. Robinson, 468 U.S. 992 (1984), pp. 30, 79; nn. 231, 234, 703, 712–13, 715–16

Smith v. Wade, 461 U.S. 30 (1983), p. 189; n. 1573

Soldal v. Cook County, 506 U.S. 56 (1992), n. 492

Sole v. Wyner, 551 U.S. 74 (2007), n. 1650

Sosna v. Iowa, 419 U.S. 393 (1975), n. 1544

South Dakota v. Opperman, 428 U.S. 364 (1976), n. 516

Spencer v. Kemna, 523 U.S. 1 (1998), p. 166; n. 1380

Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584 (2013), p. 181; nn. 1470, 1500, 1504–07

St. Louis, City of, v. Praprotnik, 485 U.S. 112 (1988), pp. 100–02; nn. 864–65, 880–81, 

892–95, 897–98, 901

Stanley v. Illinois, 405 U.S. 645 (1972), n. 1544

Stanton v. Sims, 134 S. Ct. 3 (2013), nn. 1197, 1237, 1253

State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), nn. 1585, 

1587–90

Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), pp. 91–93; nn. 825–30
Section 1983 Litigation

356

Steagald v. United States, 451 U.S. 204 (1981), nn. 500, 516

Steffel v. Thompson, 415 U.S. 452 (1974), n. 1493

Stone v. Powell, 428 U.S. 465 (1976), p. 169; n. 1408

Stump v. Sparkman, 435 U.S. 349 (1978), p. 130; nn. 1088–91, 1095–97

Susan B. Anthony List v. Driehaus, No. 13-193, 2014 WL 2675871 (S. Ct. June 16, 2014), 

n. 223

Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997), n. 1401

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), n. 1552

Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980), 

p. 142; nn. 1181, 1190–93

Suter v. Artist M., 503 U.S. 347 (1992), p. 77; nn. 656, 685–86, 689–92, 720

Swarthout v. Cooke, 131 S. Ct. 859 (2011), nn. 267, 270, 284

Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), pp. 14–19; nn. 100–01, 1004

Tennessee v. Garner, 471 U.S. 1 (1985), pp. 48, 51; nn. 242, 391–95, 417, 960

Tenney v. Brandhove, 341 U.S. 367 (1951), nn. 1180–81

Terranova v. Torres, 184 L. Ed. 2d 156 (2012), n. 453

Terry v. Adams, 345 U.S. 461 (1953), n. 757

Terry v. Ohio, 392 U.S. 1 (1968), pp. 61–62; nn. 386, 508–09, 511

Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782 (1989), 

n. 1632

Tolan v. Cotton, 134 S. Ct. 1861 (2014), p. 156; nn. 1197, 1206, 1317, 1327

Tower v. Glover, 467 U.S. 914 (1984), n. 743

Trainor v. Hernandez, 431 U.S. 434 (1977), nn. 1490, 1499

Troxel v. Granville, 530 U.S. 57 (2000), n. 1544

Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), n. 300

TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), n. 1579

United Mine Workers v. Gibbs of America, 383 U.S. 715 (1966), p. 24; nn. 181, 183

United States v. Arvizu, 534 U.S. 266 (2002), n. 513

United States v. Cortez, 449 U.S. 411 (1981), n. 510

United States v. Dunn, 480 U.S. 294 (1987), n. 516

United States v. Knights, 534 U.S. 112 (2001), n. 516

United States v. Kubrick, 444 U.S. 111 (1979), n. 1435

United States v. Lanier, 520 U.S. 259 (1997), nn. 376, 1206

United States v. Leon, 468 U.S. 897 (1984), n. 1258

United States v. Mendenhall, 446 U.S. 544 (1980), n. 387

United States v. Miller, 425 U.S. 435 (1976), n. 516

United States v. Place, 462 U.S. 696 (1983), n. 516

United States v. Robinson, 414 U.S. 218 (1973), n. 516

United States v. Sokolow, 490 U.S. 1 (1989), n. 513

United States v. Stanley, 483 U.S. 669 (1987), p. 8; n. 52

University of Tennessee v. Elliott, 478 U.S. 788 (1986), p. 169; nn. 1412–13

Van de Kamp v. Goldstein, 555 U.S. 335 (2009), pp. 133, 135–38; nn. 1114, 1131, 1146, 

1148–58

Venegas v. Mitchell, 495 U.S. 82 (1990), nn. 1684, 1696
Cases (by court)

357

Verizon Maryland Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002), 

nn. 180, 1052

Vermont v. Brillon, 556 U.S. 81 (2009), n. 743

Vermont Agency of Natural Resources v. United States, 529 U.S. 765 (2000), pp. 87–88; 

nn. 794–97, 1044

Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), nn. 359, 516

Virginia v. Moore, 553 U.S. 164 (2008), n. 499

Virginia Office for Protection & Advocacy v. Stewart, 131 S. Ct. 1632 (2011), n. 1052

Vitek v. Jones, 445 U.S. 480 (1980), nn. 269, 299

Wallace v. Kato, 549 U.S. 384 (2007), pp. 165, 173, 176; nn. 533, 543, 1374–75, 1433, 1435–

37, 1442–49, 1455–56, 1458, 1496

Warth v. Seldin, 422 U.S. 490 (1975), n. 211

Washington v. Davis, 426 U.S. 229 (1976), n. 86

Washington v. Glucksberg, 521 U.S. 702 (1997), nn. 322, 326, 338

Washington v. Harper, 494 U.S. 210 (1990), nn. 269, 302

Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), n. 1687

Waters v. Churchill, 511 U.S. 661 (1994), nn. 608–11

Webb v. County Board of Education, 471 U.S. 234 (1985), nn. 1615, 1685

West v. Atkins, 487 U.S. 42 (1988), pp. 82, 84; nn. 79, 738, 742, 744, 750, 759

West Virginia University Hospitals v. Casey, 499 U.S. 83 (1991), n. 1686

Whitley v. Albers, 475 U.S. 312 (1986), pp. 57–58; nn. 244, 374, 464–65, 467–69, 477

Whren v. United States, 517 U.S. 806 (1996), nn. 407, 497, 512

Wilder v. Virginia Hospital Ass’n, 496 U.S. 498 (1990), p. 77; nn. 678, 681–84

Wilkie v. Robbins, 551 U.S. 537 (2007), p. 9; n. 58

Wilkins v. Gaddy, 130 S. Ct. 1175 (2010), p. 58; nn. 473–76

Wilkinson v. Austin, 545 U.S. 209 (2005), p. 36; nn. 270, 292–94, 302

Wilkinson v. Dotson, 544 U.S. 74 (2005), pp. 163–64; nn. 1362, 1371

Will v. Michigan Department of State Police, 491 U.S. 58 (1989), pp. 87–89, 123; nn. 2, 

205, 787–88, 790–92, 804–05, 1041–42

Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 

(1985), p. 168; n. 1399

Willowbrook, Village of, v. Olech, 528 U.S. 562 (2000), p. 73; nn. 647–49

Wilson v. Garcia, 471 U.S. 261 (1985), p. 171; nn. 89, 1418

Wilson v. Layne, 526 U.S. 603 (1999), nn. 69, 1197, 1231, 1235–38, 1325

Wilson v. Seiter, 501 U.S. 294 (1991), p. 66; nn. 550, 561–68

Wilton v. Seven Falls Co., 515 U.S. 277 (1995), p. 183; nn. 1524, 1526–27

Wisconsin Department of Corrections v. Schacht, 524 U.S. 381 (1998), n. 197

Wolff v. McDonnell, 418 U.S. 539 (1974), p. 36; nn. 270, 288–89

Wood v. Moss, 134 S. Ct. 2056 (2014), nn. 65, 71, 1197, 1200

Wood v. Strickland, 420 U.S. 308 (1975), n. 1110

Woodford v. Ngo, 548 U.S. 81 (2006), pp. 166–67; nn. 1388–90

Wooley v. Maynard, 430 U.S. 705 (1977), n. 1493

Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987), 

pp. 76–77, 80; nn. 673–77, 725, 732
Section 1983 Litigation

358

Wyatt v. Cole, 504 U.S. 158 (1992), p. 146; nn. 9, 1221

Young, Ex parte, 209 U.S. 123 (1908), pp. 124–25, 200; nn. 1050, 1052, 1688

Young v. Harper, 520 U.S. 143 (1997), n. 290

Youngberg v. Romeo, 457 U.S. 307 (1982), pp. 43; nn. 347–48, 354

Younger v. Harris, 401 U.S. 37 (1971), pp. 178, 180–82; nn. 1473, 1489–90, 1499–1500, 

1503, 1510

Zablocki v. Redhail, 434 U.S. 374 (1978), n. 320

Zinermon v. Burch, 494 U.S. 113 (1990), pp. 39; nn. 263–66, 298, 308, 311, 314–16, 1357

First Circuit

Acevedo-Luis v. Pagan, 478 F.3d 35 (1st Cir. 2007), n. 1579

Alvarado Aguilera v. Negron, 509 F.3d 50 (1st Cir. 2007), n. 114

Aponte Matos v. Toledo-Davila, 135 F.3d 182 (1st Cir. 1998), nn. 1007, 1011

Barry v. Moran, 661 F.3d 696 (1st Cir. 2011), nn. 594–96

Bettencourt v. Board of Registration, 904 F.2d 772 (1st Cir. 1990), n. 1110

Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16 (1st Cir. 2006), n. 1011

Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007), nn. 1692, 1698

Bordanaro v. McLeod, 871 F.2d 1151 (1st Cir. 1989), nn. 867, 925

Borges-Colon v. Roman Abreu, 438 F.3d 1 (1st Cir. 2006), n. 1203

Brait Builders Corp. v. Commonwealth of Massachusetts, Division of Capital Asset 

Management, 644 F.3d 5 (1st Cir. 2011), n. 801

Brown v. Hot, Sexy & Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995), n. 310

Burke v. McDonald, 572 F.3d 51 (1st Cir. 2009), n. 1566

Burke v. Town of Walpole, 405 F.3d 66 (1st Cir. 2005), n. 1223

Button v. Maloney, 196 F.3d 24 (1st Cir. 1999), n. 1569

Calero-Colon v. Betancourt-Lebron, 68 F.3d 1 (1st Cir. 1995), n. 1434

Camilo-Robles v. Hoyos, 151 F.3d 1 (1st Cir. 1998), nn. 1011, 1223

Campus-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999), n. 1577

Cao v. Puerto Rico, 525 F.3d 112 (1st Cir. 2008), n. 1438

Casiano-Montanez v. State Insurance Fund Corp., 707 F.3d 124 (1st Cir. 2013), n. 1478

Coggeshall v. Massachusetts Board of Registration of Psychologists, 604 F.3d 658 (1st Cir. 

2010), nn. 165, 176

Colon-Rivera v. Asociacion de Suscripcion, 451 F. App’x 5 (1st Cir. 2011), n. 801

Cordi-Allen v. Conlon, 494 F.3d 245 (1st Cir. 2007), n. 653

Cortes-Reyes v. Salas-Quintana, 608 F.3d 41 (1st Cir. 2010), nn. 1322, 1577

Crossman v. Marcoccio, 806 F.2d 329 (1st Cir. 1986), n. 1694

Diaz-Bigio v. Santini, 652 F.3d 45, 53 (1st Cir. 2011), n. 627

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), n. 285

Drumgold v. Callahan, 707 F.3d 28 (1st Cir. 2013), p. 93; nn. 832, 834

Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004), n. 101

Federacion de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo de Puerto Rico, 

410 F.3d 17 (1st Cir. 2005), n. 175

Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992), n. 1164

Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001), nn. 1621, 1670
Cases (by court)

359

Getty Petroleum Marketing v. Capital Terminal Co., 391 F.3d 312 (1st Cir. 2004), n. 913

Gonzales-Fuentes v. Molina, 607 F.3d 864 (1st Cir. 2010), n. 330

Grendel’s Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984), n. 1667

Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009), nn. 1503, 1569

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989), n. 1012

Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), n. 359

Hernandez-Cuevas v. Taylor, 723 F.3d 91 (1st Cir. 2013), nn. 546, 548

Hutchinson v. Patrick, 636 F.3d 1 (1st Cir. 2011), n. 1650

Kenney v. Floyd, 700 F.3d 604 (1st Cir. 2012), n. 431

Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (1st Cir. 1987), n. 1503

Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), n. 1568

Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010), n. 329

McCloskey v. Mueller, 446 F.3d 262 (1st Cir. 2006), n. 735

McConkie v. Nichols, 446 F.3d 258 (1st Cir. 2006), n. 335

Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18 (1st Cir. 2010), n. 1586

Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001), nn. 534, 538, 548

O’Connor v. Huard, 117 F.3d 12 (1st Cir. 1997), nn. 486, 491

Parker v. Gerrish, 547 F.3d 1 (1st Cir. 2008), n. 433

Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004), n. 1575

Ramirez v. Arlequin, 447 F.3d 19 (1st Cir. 2006), n. 282

Redondo-Borges v. United States Department of Housing & Urban Development, 421 

F.3d 1 (1st Cir. 2005), n. 282

Roche v. John Hancock Mutual Life Insurance Co., 81 F.3d 249 (1st Cir. 1996), nn. 532, 

736

Rodriguez-Marin v. Rivera-Gonzales, 438 F.3d 72 (1st Cir. 2006), n. 1323

San Geronimo Caribe Project, Inc. v. Acevedo-Vila, 687 F.3d 465 (1st Cir. 2012), n. 317

Soto-Padro v. Public Buildings Authority, 675 F.3d 1 (1st Cir. 2012), n. 593

St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995), n. 439

Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227 (1st Cir. 2007), n. 1214

Tapalian v. Tusino, 377 F.3d 1 (1st Cir. 2004), nn. 1579, 1594

Thore v. Howe, 466 F.3d 173 (1st Cir. 2006), n. 248

Torres-Rivera v. Calderon-Serra, 412 F.3d 205 (1st Cir. 2005), n. 1182

Williams v. Hanover Housing Authority, 113 F.3d 1294 (1st Cir. 1997), n. 1624

Wilson v. Town of Mendon, 294 F.3d 1 (1st Cir. 2002), n. 1011

Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005), nn. 439, 821

Second Circuit

Amato v. City of Saratoga Springs, 170 F.3d 311 (2d Cir. 1999), nn. 1029, 1037–38

Amore v. Novarro, 624 F.3d 522 (2d Cir. 2010), n. 1205

Applewhite v. Briber, 506 F.3d 181 (2d Cir. 2007), n. 1110

Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d 

Cir. 2008), n. 1653

Askins v. Doe No. 1, 727 F.3d 248 (2d Cir. 2013), nn. 1034–35
Section 1983 Litigation

360

Association for Retarded Citizens of Connecticut Inc. v. Thorne, 68 F.3d 547 (2d Cir. 

1995), n. 1661

Baez v. Hennessy, 853 F.2d 73 (2d Cir. 1988), n. 916

Barbour v. City of White Plains, 700 F.3d 631 (2d Cir. 2012), n. 1693

Barrett v. Harwood, 189 F.3d 297 (2d Cir. 1999), n. 783

Barrett v. Orange County, 194 F.3d 341 (2d Cir. 1999), n. 1033

Barrow v. Wethersfield Police Department, 66 F.3d 466 (2d Cir. 1995), n. 1431

Bender v. City of New York, 78 F.3d 787 (2d Cir. 1996), n. 1568

Bennett v. Goord, 343 F.3d 133 (2d Cir. 2003), n. 637

Blackman v. New York City Transit Authority, 491 F.3d 95 (2d Cir. 2007), n. 607

Bliven v. Hunt, 579 F.3d 204 (2d Cir. 2009), n. 1091

Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982), n. 748

Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997), n. 285

Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994), n. 147

Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), n. 1638

Cameron v. City of New York, 598 F.3d 50 (2d Cir. 2010), n. 1578

Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011), n. 872

Chin v. Bowen, 833 F.2d 21 (2d Cir. 1987), n. 76

Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002), n. 144

Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), n. 1011

Connecticut v. Crotty, 346 F.3d 84 (2d Cir. 2003), n. 1214

Connecticut Criminal Defense Lawyers Ass’n v. Forst (In re State Police Litigation), 

88 F.3d 111 (2d Cir. 1996), n. 1292

Coon v. Town of Springfield, 404 F.3d 683 (2d Cir. 2005), n. 850

Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), n. 369

Davis v. Barrett, 576 F.3d 129 (2d Cir. 2009), n. 286

Davis v. Rodriguez, 364 F.3d 424 (2d Cir. 2004), n. 501

Dawes v. Walker, 239 F.3d 489 (2d Cir. 2001), nn. 630, 635

Dean v. Blumenthal, 577 F.3d 60 (2d Cir. 2009), n. 1556

DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003), n. 318

DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003), n. 1594 

Dodd v. City of Norwich, 827 F.2d 1 (2d Cir. 1987), n. 1032

Doe v. Whelan, 732 F.3d 151 (2d Cir. 2013), n. 1164

Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), n. 367

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), n. 68

Fabrikant v. French, 691 F.3d 193 (2d Cir. 2012), n. 760

Farbotko v. Clinton County, 433 F.3d 204 (2d Cir. 2005), nn. 1659, 1662

Flaherty v. Coughlin, 713 F.2d 10 (2d Cir. 1983), n. 636

Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988), n. 629

Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002), n. 638

Giano v. Goard, 380 F.3d 670 (2d Cir. 2004), n. 1389

Ginsberg v. Healey Car & Truck Leasing, 189 F.3d 268 (2d Cir. 1999), n. 771

Giraldo v. Kessler, 694 F.3d 161 (2d Cir. 2012), n. 1123

Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992), n. 860
Cases (by court)

361

Gonzalez v. City of Schenectady, 728 F. 3d 149 (2d Cir. 2013), n. 1197

Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996), nn. 629, 636

Green v. Mattingly, 585 F.3d 97 (2d Cir. 2009), n. 548

Gross v. Bell, 585 F.3d 72 (2d Cir. 2009), n. 1090

Hanrahan v. Doling, 331 F.3d 93 (2d Cir. 2003), n. 285

Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), n. 1389

Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003), n. 1011

Hicks v. Feeney, 850 F.2d 152 (2d Cir. 1988), n. 1291

Hoblock v. Albany County Board of Elections, 422 F.3d 77 (2d Cir. 2005), n. 161

Hotel & Restaurant Employees Union, Local 100 v. City of New York Department of Parks 

& Recreation, 311 F.3d 534 (2d Cir. 2002), n. 739

Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013), nn. 1423, 1432

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), n. 225

Kanciper v. Suffolk County Society for Prevention of Cruelty to Animals, 722 F.3d 88 (2d 

Cir. 2013), n. 1517

King v. Macri, 993 F.2d 294 (2d Cir. 1993), nn. 1577, 1579

Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996), n. 1594

Lee v. Sandberg, 136 F.3d 94 (2d Cir. 1997), n. 1292

Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999), n. 626

Lore v. City of Syracuse, 670 F.3d 127 (2d Cir. 2012), n. 1034

Loyal Tire & Auto Center, Inc. v. Town of Woodbury, 445 F.3d 136 (2d Cir. 2006), n. 230

Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), nn. 545, 548

Marshall v. Randall 719 F. 3d 113 (2d Cir. 2013), n. 1173

McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), nn. 1295, 1343

McMillan v. New York State Board of Elections, 449 F. App’x 79 (2d Cir. 2011), n. 801

McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999), n. 147

Messa v. Goord, 652 F.3d 305 (2d Cir. 2011), n. 1395

Miller v. Lovett, 879 F.2d 1066 (2d Cir. 1989), n. 1570

Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997), n. 285

Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), nn. 1639, 1641

Morrison v. City of New York, 591 F.3d 109 (2d Cir. 2010), n. 166

Murphy v. Lynn, 118 F.3d 938 (2d Cir. 1997), n. 545

New York, In re City of, 607 F.3d 923 (2d Cir. 2010), n. 24

New York State Federation of Taxi Drivers, Inc. v. Westchester County Taxi & Limousine 

Commission, 272 F.3d 154 (2d Cir. 2001), n. 1649

O’Bert v. Vargo, 331 F.3d 29 (2d Cir. 2003), n. 397

Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415 (2d Cir. 2009), 

n. 367

Oliva v. Heller, 839 F.2d 37 (2d Cir. 1988), n. 1112

Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004), n. 296

Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir. 1981), 

n. 91

Payne v. Jones, 711 F.3d 85 (2d Cir. 2013), nn. 1584, 1586, 1588

Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2005), n. 367
Section 1983 Litigation

362

Pitchell v. Callahan, 13 F.3d 545 (2d Cir. 1994), n. 748

Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002), n. 1011

Prue v. City of Syracuse, 26 F.3d 14 (2d Cir. 1994), n. 1034

Rasanen v. Doe, 723 F.3d 325 (2d Cir. 2013), n. 453

Raysor v. Port Authority, 768 F.2d 34 (2d Cir. 1985), n. 506

Ricketts v. City of Hartford, 74 F.3d 1397 (2d Cir. 1996), n. 404

Rivera-Powell v. New York City Board of Elections, 470 F.3d 458 (2d Cir. 2006), nn. 313, 

318

Roberson v. Giuliani, 346 F.3d 75 (2d Cir. 2003), nn. 1650–51

Rojas v. Alexander’s Department Store, Inc., 924 F.2d 406 (2d Cir. 1990), n. 850

Rolon v. Henneman, 517 F.3d 140 (2d Cir. 2008), nn. 1167, 1179

Rounseville v. Zahl, 13 F.3d 625 (2d Cir. 1994), n. 545

Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), n. 82

Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996), nn. 437–38

Santiago v. New York State Department of Correctional Services, 945 F.2d 25 (2d Cir. 

1991), n. 91

Sealey v. Giltner, 197 F.3d 578 (2d Cir. 1999), n. 287

Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006), n. 296

Shakhnes v. Berlin, 689 F.3d 244 (2d Cir. 2012), n. 728

Shmueli v. City of New York, 424 F.3d 231 (2d Cir. 2005), n. 1117

Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir. 2009), nn. 1663–65

Simon v. City of New York, 727 F.3d 167 (2d Cir. 2013), nn. 1123, 1129

Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), n. 494

Sorlucco v. New York City Police Department, 971 F.2d 864 (2d Cir. 1992), pp. 104–06; 

nn. 927–29, 931–38

Sousa v. Roque, 578 F.3d 164 (2d Cir. 2009), n. 606

Star Distributors Ltd. v. Marino, 613 F.2d 4 (2d Cir. 1980), nn. 1193–94

Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2003), nn. 1282, 1322

Tavarez v. Reno, 54 F.3d 109 (2d Cir. 1995), n. 74

Taylor v. Housing Authority of New Haven, 645 F.3d 152 (2d Cir. 2011), n. 728

Teller v. Fields, 280 F.3d 69 (2d Cir. 2000), n. 286

Terranova v. New York, 676 F.3d 305 (2d Cir. 2012), n. 453

Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), n. 819

Tracy v. Freshwater, 623 F.3d 90 (2d Cir. 2010), n. 431

Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983), n. 147

United States v. Walsh, 194 F.3d 37 (2d Cir. 1999), n. 487

Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995), n. 867

Varrone v. Bilotti, 123 F.3d 75 (2d Cir. 1997), n. 1292

Velez v. Levy, 401 F.3d 75 (2d Cir. 2005), n. 318

Vives v. City of New York, 524 F.3d 346 (2d Cir. 2008), n. 876

V.S. v. Muhammad, 595 F.3d 426 (2d Cir. 2010), n. 1164

Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007), nn. 519, 1203

Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), n. 916

Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1996), n. 817
Cases (by court)

363

Warney v. Monroe County, 587 F.3d 113 (2d Cir. 2009), p. 138; nn. 1123, 1159–62

Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996), n. 494

Woods v. Rondout Valley Central School District Board of Education, 466 F.3d 232 (2d 

Cir. 2006), n. 1068

Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007), n. 819

Young v. County of Fulton, 160 F.3d 899 (2d Cir. 1998), n. 248

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), n. 820

Zalaski v. City of Hartford, 723 F.3d 382 (2d Cir. 2013), n. 1197

Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), nn. 1579, 1091

Zellner v. Summerlin, 494 F.3d 344 (2d Cir. 2007), nn. 1277, 1322

Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2003), n. 1389

Third Circuit

Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), nn. 397, 440

ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127 (3d Cir. 2014), n. 1508

Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000), n. 630

Atkin v. Johnson, 432 F. App’x 47 (3d Cir. 2011), n. 801

Baker v. James T. Vaughn Correctional Center, 425 F. App’x 83 (3d Cir. 2011), n. 801

Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), n. 1011

Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989), nn. 1668–69

Carswell v. Borough of Homestead, 381 F.3d 235 (3d Cir. 2004), n. 1322

Carter v. Philadelphia, 181 F.3d 339 (3d Cir. 1999), n. 916

Crissman v. Dover Downs Entertainment, 289 F.3d 231 (3d Cir. 2002), n. 755

Curley v. Klem, 499 F.3d 199 (3d Cir. 2007), nn. 1322–23

Donnelly v. TRL, Inc., 420 F. App’x 126 (3d Cir. 2010), n. 801

D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992), 

nn. 359, 365

Drippe v. Tobelinski, 604 F.3d 778 (3d Cir. 2010), n. 1395

Ernst v. Child & Youth Services, 108 F.3d 486 (3d Cir. 1997), n. 1164

Febres v. Camden Board of Education, 445 F.3d 227 (3d Cir. 2006), n. 1066

Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984), n. 1544

Foraker v. Claffinch, 501 F.3d 231 (3d Cir. 2007), n. 620

Fowler v. University of Pittsburgh Medical Center Shadyside, 578 F.3d 203 (3d Cir. 2009), 

n. 128

Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000), n. 487

Grant v. City of Pittsburgh, 98 F.3d 116 (3d Cir. 1996), n. 21

Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010), 

nn. 161, 169

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997), n. 285

Hall v. Borough of Roselle, 747 F.2d 838 (3d Cir. 1984), n. 1626

Jama v. Esmor Correctional Services 577 F.3d 169 (3d Cir. 2009), n. 1638

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994), n. 1222

Kaucher v. County of Bucks, 455 F.3d 418 (3d Cir. 2006), n. 364

Keisling v. Renn, 425 F. App’x 106 (3d Cir. 2011), n. 801
Section 1983 Litigation

364

Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), n. 1214

Kopec v. Tate, 361 F.3d 772 (3d Cir. 2004), n. 430

Kossler v. Crisanti, 564 F.3d 181 (3d Cir. 2009), nn. 547–48

Lee v. Mihalich, 847 F.2d 66 (3d Cir. 1988), n. 545

Lima v. Newark Police Department, 658 F.3d 324 (3d Cir. 2011), n. 1693

Lippay v. Christos, 996 F.2d 1490 (3d Cir. 1993), n. 545

McKenna v. City of Philadelphia, 582 F.3d 447 (3d Cir. 2009), nn. 407, 545

Montgomery v. De Simone, 159 F.3d 120 (3d Cir. 1998), n. 518

Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013), n. 359

Mulholland v. Government County of Berks, 706 F.3d 227 (3d Cir. 2013), n. 883

Nails v. Pennsylvania Department of Transportation, 414 F. App’x 452 (3d Cir. 2011), 

n. 801

Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000), nn. 350, 358

Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008), n. 367

Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001), nn. 630–31, 634

Rivas v. City of Passaic, 365 F.3d 181 (3d Cir. 2004), n. 821

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), n. 1011

Singletary v. Pennsylvania Department of Corrections, 266 F.3d 186 (3d Cir. 2001), 

n. 1432

Smith v. Philadelphia Housing Authority, 107 F.3d 223 (3d Cir. 1997), n. 1659

Smith, Estate of, v. Marasco, 430 F.3d 140 (3d Cir. 2005), n. 367

Smith, Estate of, v. Marasco, 318 F.3d 497 (3d Cir. 2003), n. 519

South Camden Citizens in Action v. New Jersey Department of Environmental Protection, 

274 F.3d 771 (3d Cir. 2001), n. 728

Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007), n. 114

Stoneking v. Bradford Area School District, 882 F.2d 720 (3d Cir. 1989), n. 360

Talbert v. Judiciary of New Jersey, 420 F. App’x 140 (3d Cir. 2011), n. 801

Thomas v. Independence Township, 463 F.3d 285 (3d Cir. 2006), n. 1281

Three Rivers Center for Independent Living v. Housing Authority of Pittsburgh, 382 F.3d 

412 (3d Cir. 2004), n. 729

Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Cir. 2002), n. 1650

Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir. 1989), n. 1032

Fourth Circuit

Allstate Insurance Co. v. West Virginia State Bar, 233 F.3d 813 (4th Cir. 2000), n. 174

Andrew v. Clark, 561 F.3d 261 (4th Cir. 2009), n. 619

Antrican v. Odom, 290 F.3d 178 (4th Cir. 2002), n. 1051

Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995), n. 848

Brockington v. Boykins, 637 F.3d 503 (4th Cir. 2011), n. 406

Brooks v. City of Winston-Salem, 85 F.3d 178 (4th Cir. 1996), n. 545

Burt v. Abel, 585 F.2d 613 (4th Cir. 1978), n. 28

Carr v. Deeds, 453 F.3d 593 (4th Cir. 2006), n. 487

Carter v. Morris, 164 F.3d 215 (4th Cir. 1999), nn. 1007, 1011

De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013), n. 555
Cases (by court)

365

Doe v. South Carolina Department of Social Services, 597 F.3d 163 (4th Cir. 2010), 

nn. 350, 358

Dotson v. Chester, 937 F.2d 920 (4th Cir. 1991), n. 895

Durham v. Horner, 690 F.3d 183 (4th Cir. 2012), n. 545

Evans v. Chalmers, 703 F.3d 636 (4th Cir. 2012), nn. 815, 819

Folio v. City of Clarksburg, 134 F.3d 1211 (4th Cir. 1998), n. 1546

Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991), n. 436

Gregg v. Ham, 678 F.3d 333 (4th Cir. 2012), n. 1230

Grissom v. The Mills Corp., 549 F.3d 313 (4th Cir. 2008), n. 1647

Henry v. Purnell, 652 F.3d 524 (4th Cir. 2011), p. 54; nn. 443–45

Holiday Amusement Co. of Charleston, Inc. v. South Carolina, 40 F.3d 534 (4th Cir. 2005), 

n. 177

Ingle v. Yelton, 439 F.3d 191 (4th Cir. 2006), n. 397

International Ground Transportation, Inc. v. Mayor of Ocean City, Maryland, 475 F.3d 

214 (4th Cir. 2007), n. 1034

Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994), n. 996

L.J. v. Wilbon, 633 F.3d 297 (4th Cir. 2011), n. 695

Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000), n. 548

Maciariello v. Sumner, 973 F.2d 295 (4th Cir. 1992), n. 1207

Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005), n. 1638

Meyers v. Baltimore County, 713 F.3d 723 (4th Cir. 2013), n. 433

Nivens v. Gilchrist, 444 F.3d 237 (4th Cir. 2006), nn. 840, 1510

Noel v. Artson, 641 F.3d 580 (4th Cir. 2011), nn. 32–33

Pike v. Osborne, 301 F.3d 182 (4th Cir. 2002), n. 627

Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), nn. 366–67

Randall v. Prince George’s County, 302 F.3d 188 (4th Cir. 2002), n. 1011

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), n. 382

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), nn. 1007, 1011

Slade v. Hampton Roads Regional Jail, 407 F.3d 243 (4th Cir. 2005), n. 99

Stevenson v. City of Seat Pleasant, 743 F.3d 411 (4th Cir. 2014), n. 458

White v. Chambliss, 112 F.3d 731 (4th Cir. 1997), nn. 358, 1164

Willingham v. Crooke, 412 F.3d 553 (4th Cir. 2005), n. 1322

Wilson v. Flynn, 429 F.2d 465 (4th Cir. 2005), n. 1203

Wilson v. Johnson, 535 U.S. 262 (4th Cir. 2008), n. 1381

Witt v. West Virginia State Police, 633 F.3d 272 (4th Cir. 2011), n. 429

Zombro v. Baltimore Police Department, 868 F.3d 1364 (4th Cir. 1989), n. 240

Fifth Circuit

Alexander v. Ieyoub, 62 F.3d 709 (5th Cir. 1995), n. 310

Atteberry v. Nocona General Hospital, 430 F.3d 245 (5th Cir. 2005), n. 1011

Aware Woman Clinic, Inc. v. Cocoa Beach, 629 F.2d 1146 (5th Cir. 1980), n. 1623

Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996), n. 989

Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), n. 1466

Brown v. Sudduth, 675 F.3d 472 (5th Cir. 2012), n. 1322
Section 1983 Litigation

366

Bulger v. United States Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995), n. 285

Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999), n. 860

Bustos v. Martini Club, Inc., 599 F.3d 458 (5th Cir. 2010), nn. 151, 367

Carnaby v. City of Houston, 636 F.3d 183 (5th Cir. 2011), nn. 429, 1028

Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003), n. 548

Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), n. 618

Collier v. Montgomery, 569 F.3d 214 (5th Cir. 2009), n. 429

Dillon v. Rogers, 596 F.3d 260 (5th Cir. 2010), n. 1395

Doe v. Covington School District, 675 F.3d 849 (5th Cir. 2012), n. 359

Doe v. Hillsboro Independent School District, 113 F.3d 1412 (5th Cir. 1997), n. 359

Gros v. City of Grand Prairie, 181 F.3d 613 (5th Cir. 1999), nn. 891, 904

Gutierrez v. San Antonio, 139 F.3d 441 (5th Cir. 1998), n. 450

Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999), n. 1434

Harris v. Serpas, 745 F.3d 767 (5th Cir. 2014), nn. 429, 436

Hernandez v. Texas Department of Protective & Regulatory Services, 380 F.3d 872 (5th 

Cir. 2004), n. 350

Hernandez v. Velasquez, 522 F.3d 556 (5th Cir. 2008), n. 285

Hill v. City of Pontotoc, 993 F.2d 422 (5th Cir. 1993), n. 1572

Hoog-Watson v. Guadalupe County, 591 F.3d 431 (5th Cir. 2009), n. 1124

Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007), n. 1602

Jacobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), n. 1431

Johnson v. Georgia Highway Express, Inc., 488 F.2d 717 (5th Cir. 1974), n. 1654

Johnson v. Louisiana Department of Agriculture, 18 F.3d 318 (5th Cir. 1994), n. 317

Johnson v. City of Shelby, 743 F.3d 59 (5th Cir. 2013), n. 91

Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999), n. 543

Kinnison v. City of San Antonio, 480 Fed. App’x 271 (5th Cir. 2012), n. 852

Lafleur v. Texas Department of Health, 126 F.3d 758 (5th Cir. 1997), n. 240

Lance, Estate of, v. Lewisville Independent School District, 743 F.3d 982 (5th Cir. 2014), 

n. 359 

Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), n. 290

Madison v. Parker, 104 F.3d 765 (5th Cir. 1997), n. 289

McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002), n. 1291

McCoy v. Hernandez, 203 F.3d 371 (5th Cir. 2000), n. 1322

Mesa v. Prejean, 543 F.3d 264 (5th Cir. 2008), n. 641

Morgan v. Plano Independent School District, 589 F.3d 740 (5th Cir. 2009), n. 1556

Murray v. Earle, 405 F.3d 278 (5th Cir. 2005), nn. 815, 819

Newman v. Guedry, 703 F.3d 757 (5th Cir. 2012), n. 433

Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), n. 285

Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009), nn. 407, 1282

Peterson v. City of Fort Worth, 588 F.3d 838 (5th Cir. 2009), n. 942

Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002), p. 106; nn. 939–42

Presley v. City of Benbrook, 4 F.3d 405 (5th Cir. 1993), n. 1322

Roberts v. City of Shreveport, 397 F.3d 287 (5th Cir. 2005), n. 1011

Ross v. Texas Education Agency, 409 F. App’x 765 (5th Cir. 2011), n. 801
Cases (by court)

367

Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), n. 140

Spiller v. Texas City, 130 F.3d 162 (5th Cir. 1997), n. 997

Thomas v. Texas Department of Family & Protective Services, 427 F. App’x 309 (5th Cir. 

2011), n. 801

United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991), n. 748

Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), n. 487

Wagner v. Bay City, 227 F.3d 316 (5th Cir. 2000), n. 463

Walter v. Horseshoe Entertainment, 483 F. App’x 884 (5th Cir. 2012), n. 740

Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995), nn. 356, 359

Wernecke v. Garcia, 591 F.3d 386 (5th Cir. 2009), n. 1164

Williams v. Kaufman County, 352 F.3d 994 (5th Cir. 2003), n. 1594

Worsham v. City of Pasadena, 881 F.2d 1336 (5th Cir. 1989), n. 902

Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001), n. 1396

Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993), n. 1222

Sixth Circuit

Abbott v. Michigan, 474 F.3d 324 (6th Cir. 2007), n. 173

Aldini v. Johnson, 609 F.3d 858 (6th Cir. 2010), nn. 378, 382

Andrews v. Hickman County, 700 F.3d 845 (6th Cir. 2012), nn. 1164, 1291

Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996), n. 1091

Austin v. Redford Township Police Department, 690 F.3d 490 (6th Cir. 2012), n. 433

Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006), n. 641

Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), n. 1091

Binay v. Bettendorf, 601 F.3d 640 (6th Cir. 2010), n. 527

Binta B. v. Gordon, 710 F.3d 608 (6th Cir. 2013), n. 1672

Bishop v. Children’s Center for Developmental Enrichment, 618 F.3d 533 (6th Cir. 2010), 

n. 1438

Bishop v. Hackel, 636 F.3d 757 (6th Cir. 2011), n. 405

Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011), nn. 442, 527

Boykin v. Van Buren Township, 479 F.3d 444 (6th Cir. 2007), n. 783

Brookings v. Clunk, 389 F.3d 614 (6th Cir. 2004), n. 1091

Brown v. Tombs, 139 F.3d 1102 (6th Cir. 1998), n. 1396

Cady v. Arenac County, 574 F.3d 334 (6th Cir. 2009), n. 1123

Campbell v. City of Springboro, 700 F.3d 779 (6th Cir. 2012), n. 432

Causey v. City of Bay City, 443 F.3d 524 (6th Cir. 2006), n. 1203

Ciminillo v. Streicher, 434 F.3d 461 (6th Cir. 2006), n. 1291

Cochran v. Gilliam, 656 F.3d 300 (6th Cir. 2011), n. 783

Combs v. Wilkinson, 315 F.3d 548 (6th Cir. 2002), n. 1011

Cox v. Treadway, 75 F.3d 230 (6th Cir. 1996), n. 1431

D’Ambrosio v. Marino, 747 F.3d 378 (6th Cir. 2014), n. 916

Dixon v. Anderson, 928 F.2d 212 (6th Cir. 1991), n. 1435

Doe v. City of Roseville, 296 F.3d 431 (6th Cir. 2002), n. 1011

Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996), n. 359

Doe v. Sullivan County, 956 F.2d 545 (6th Cir. 1992), n. 1034
Section 1983 Litigation

368

Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008), n. 405

Dunn v. Matatall, 549 F.3d 348 (6th Cir. 2008), n. 429

Edison v. Tennessee Department of Children’s Services, 510 F.3d 631 (6th Cir. 2007), 

n. 1438

Ernst v. Rising, 427 F.3d 351 (6th Cir. 2005), nn. 1066–67

Fox v. Traverse City Area Public School Board of Education, 605 F.3d 345 (6th Cir. 2010), 

n. 618

Freger v. Cox, 524 F.3d 770 (6th Cir. 2008), n. 144

Garner v. Memphis Police Department, 8 F.3d 358 (6th Cir. 1993), n. 876

Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), n. 1011

Hagans v. Franklin County Sheriff’s Office, 695 F.3d 505 (6th Cir. 2012), n. 433

Harris v. Bornhorst, 513 F.3d 503 (6th Cir. 2008), n. 1124

Harrison v. Michigan, 722 F.3d 768 (6th Cir. 2013), n. 801

Hensley v. Gassman, 693 F.3d 681 (6th Cir. 2012), n. 783

Horn v. Madison County Fiscal Court, 22 F.3d 653 (6th Cir. 1994), n. 463

Hughes v. Region VII Area Agency on Aging, 542 F.3d 169 (6th Cir. 2008), n. 786

Hussein v. City of Perrysburg, 617 F.3d 828 (6th Cir. 2010), n. 333

Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006), n. 728

Jones v. Baker, 155 F.3d 810 (6th Cir. 1998), n. 285

Jones v. Byrnes, 585 F.3d 971 (6th Cir. 2009), n. 334

Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), n. 369

Kennedy v. City of Cincinnati, 595 F.3d 327 (6th Cir. 2010), n. 1214

Keweenaw Bay Indian Community v. Rising, 569 F.3d 589 (6th Cir. 2009), n. 209

Koubriti v. Convertino, 593 F.3d 459 (6th Cir. 2010), n. 1123

Kovacic v. Cuyahoga County Department of Children & Family Services, 724 F.3d 687 

(6th Cir. 2013), n. 1164

Kovacic v. Cuyahoga County Department of Children & Family Services, 606 F.3d 301 

(6th Cir. 2010), n. 169

Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980), n. 748

Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003), n. 1006

Lewellen v. Metropolitan Government of Nashville, 34 F.3d 345 (6th Cir. 1994), n. 362

Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994), nn. 350, 358

Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007), n. 518

Maineville, Village of, v. Hamilton Township Board of Trustees, 726 F.3d 762 (6th Cir. 

2013), n. 1641

Martin v. Heideman, 106 F.3d 1308 (6th Cir. 1997), n. 430

Marvin v. City of Taylor, 509 F.3d 234 (6th Cir. 2007), n. 429

McCormick v. Miami University, 693 F.3d 654 (6th Cir. 2012), n. 93

McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012), n. 1230

McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005), n. 815

McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006), nn. 359, 367

Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993), n. 314

Moore v. City of Harriman, 272 F.3d 769 (6th Cir. 2001), n. 848

Muldowan v. City of Warren, 578 F.3d 351 (6th Cir. 2009), n. 1167
Cases (by court)

369

Nair v. Oakland County Community Mental Health Authority, 443 F.3d 469 (6th Cir. 

2006), n. 1046

Napier v. Madison County, 238 F.3d 739 (6th Cir. 2001), n. 463

Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), n. 1011

Powers v. Hamilton County Public Defender Commission, 501 F.3d 592 (6th Cir. 2007), 

nn. 169, 743

Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005), nn. 249, 518

Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007), n. 783

Saginaw Housing Commission v. Bannum, Inc., 576 F.3d 620 (6th Cir. 2009), n. 1535

Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999), n. 1011

Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), n. 748

Sutton v. Metropolitan Government of Nashville & Davidson County, 700 F.3d 865 (6th 

Cir. 2012), n. 507

Sykes v. Anderson, 625 F.3d 294 (6th Cir. 2010), nn. 545, 548–49

Toms v. Taft, 338 F.3d 519 (6th Cir. 2003), n. 1650

Trafalgar Corp. v. Miami Board of Commissioners, 519 F.3d 285 (6th Cir. 2008), n. 1403

Twin City Fire Insurance Co. v. Adkins, 400 F.3d 293 (6th Cir. 2005), n. 177

Untalan v. City of Lorain, 430 F.3d 312 (6th Cir. 2005), n. 455

Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692 (6th Cir. 1996), 

n. 1222

Voyticky v. Village of Timberlake, 412 F.3d 669 (6th Cir. 2005), n. 249

Watkins v. City of Battle Creek, 273 F.3d 682 (6th Cir. 2001), n. 463

Williams v. Curtis, 631 F.3d 380 (6th Cir. 2011), n. 150

Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991), n. 1347

Seventh Circuit

Abbott v. Sangamon County, 705 F.3d 706 (7th Cir. 2013), n. 433

Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005), n. 454

Alexander v. City of Milwaukee, 474 F.3d 437 (7th Cir. 2007), n. 1580

Alliance to End Repression v. City of Chicago, 356 F.3d 767 (7th Cir. 2004), n. 1672

Aponte v. City of Chicago, 728 F.3d 724 (7th Cir. 2013), n. 1638

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), nn. 1346–47

Argyropoulos v. City of Alton, 539 F.3d 724 (7th Cir. 2008), n. 908

Askew v. Sheriff of Cooks County, 568 F.3d 632 (7th Cir. 2009), n. 847

Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), n. 897

Baxter v. Vigo County School Corp., 26 F.3d 728 (7th Cir. 1994), n. 91

Benz v. City of Kendallville, 577 F.3d 776 (7th Cir. 2009), n. 1460

Best v. City of Portland, 554 F.3d 698 (7th Cir. 2009), n. 813

Bieneman v. City of Chicago, 864 F.2d 463 (7th Cir. 1988), n. 76

Bogan v. City of Chicago, 644 F.3d 563 (7th Cir. 2011), n. 517

Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009), n. 633

Briggs v. Marshall, 93 F.3d 355 (7th Cir. 1996), n. 1556

Brown v. Bowman, 668 F.3d 437 (7th Cir. 2012), n. 167

Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980), n. 1626
Section 1983 Litigation

370

Burrell v. Powers, 431 F.3d 282 (7th Cir. 2005), n. 1396

Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995), n. 358

Cefau v. Village of Elk Grove, 211 F.3d 416 (7th Cir. 2000), n. 248

Chan v. Wodnicki, 67 F.3d 137 (7th Cir. 1995), n. 1347

Cobige v. City of Chicago, 651 F.3d 780 (7th Cir. 2011), n. 1567

Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009), n. 146

Cornfield v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993), 

n. 962

Cotts v. Osafo, 692 F.3d 564 (7th Cir. 2012), p. 66; nn. 35–36, 557–60

Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010), nn. 397, 433, 815

Dawson v. Milwaukee Housing Authority, 930 F.2d 1283 (7th Cir. 1991), n. 361

DePue, Village of, v. Exxon Mobil Corp., 537 F.3d 775 (7th Cir. 2008), n. 1490

Dishnow v. School District of Rib Lake, 77 F.3d 194 (7th Cir. 1996), n. 605

Divane v. Krull Electric Co., 319 F.3d 307 (7th Cir. 2003), n. 1617

Easter House v. Felder, 910 F.2d 1387 (7th Cir. 1990), n. 317

Embry v. City of Calumet City, 701 F.3d 231 (7th Cir. 2012), n. 586

Evans v. City of Chicago, 513 F.3d 735 (7th Cir. 2008), n. 852

Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014), n. 1126

Fleming v. Livingston County, 674 F.3d 874 (7th Cir. 2012), n. 1214

Ford v. Johnson, 362 F.3d 395 (7th Cir. 2004), n. 1396

Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010), nn. 538, 1569

Frizzell v. Szabo, 647 F.3d 698 (7th Cir. 2011), n. 1556

Gakuba v. O’Brien, 711 F.3d 751 (7th Cir. 2013), n. 1495

Garry v. Geils, 82 F.3d 1362 (7th Cir. 1996), n. 168

Geinosky v. City of Chicago, 675 F.3d 743 (7th Cir. 2012), nn. 146, 653

Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 1997), n. 1011

Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (7th Cir. 1990), n. 1599

Greenawalt v. Indiana Department of Corrections, 397 F.3d 587 (7th Cir. 2005), n. 1053

Guzman v. City of Chicago, 689 F.3d 740 (7th Cir. 2012), n. 560

Harbor Motor Co. v. Arnell Chevrolet-Geo, 265 F.3d 638 (7th Cir. 2001), n. 1694

Harvey v. Town of Merrillville, 649 F.3d 526 (7th Cir. 2011), n. 649

Hendrick v. Cooper, 589 F.3d 887 (7th Cir. 2009), n. 1553

Hildebrandt v. Ill. Department of Natural Resources, 347 F.3d 1014 (7th Cir. 2003), 

n. 1454

Jewett v. Anders, 521 F.3d 818 (7th Cir. 2008), n. 512

J.O. v. Alton School District, 909 F.2d 267 (7th Cir. 1990), n. 359

Johnson v. Orr, 551 F.3d 564 (7th Cir. 2008), n. 169

Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988), n. 1011

Julian v. Hanna, 732 F.3d 842 (7th Cir. 2013), nn. 538, 548

Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004), nn. 882, 896

King v. East St. Louis School District 189, 496 F.3d 812 (7th Cir. 2007), n. 367

Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014), n. 488

Kujawski v. Board of Commissioners, 183 F.3d 734 (7th Cir. 1999), n. 891

Latta v. Chapala, 221 F. App’x 443 (7th Cir. 2007), n. 1167
Cases (by court)

371

Levin v. Madigan, 692 F.3d 607 (7th Cir. 2012), n. 240

Lewis v. Downey, 581 F.3d 467 (7th Cir. 2009), n. 433

Lopez v. City of Chicago, 464 F.3d 711 (7th Cir. 2006), nn. 382, 852

Lowe v. Lestinger, 772 F.2d 308 (7th Cir. 1985), n. 1091

Marion v. Columbia Correctional Institution, 559 F.3d 693 (7th Cir. 2009), n. 286

Matta-Ballestros v. Hennan, 896 F.3d 255 (7th Cir. 1990), n. 434

Mays v. Springborn, 719 F.3d 631 (7th Cir. 2013), n. 632

McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992), n. 389

Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370 (7th Cir. 2009), n. 606

Moreland, Estate of, v. Dieter, 395 F.3d 747 (7th Cir. 2005), n. 463

Moss v. Martin, 614 F.3d 707 (7th Cir. 2010), n. 1214

Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), n. 359

Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001), nn. 538, 548

Palmetto Properties, Inc. v. County of DuPage, 375 F.3d 542 (7th Cir. 2004), n. 1649

Parish v. City of Chicago, 594 F.3d 551 (7th Cir. 2009), n. 538

Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), n. 1395

Payne v. Milwaukee County, 288 F.3d 1021 (7th Cir. 2002), n. 1694

Peirick v. Indiana University-Purdue University Indianapolis Athletic Department, 510 

F.3d 681 (7th Cir. 2007), n. 1066

Phillips, Estate of, v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), n. 450

Pickrel v. City of Springfield, 45 F.3d 1115 (7th Cir. 1995), n. 748

Planned Parenthood of Indiana v. Commissioner of Indiana State Department of Health, 

699 F.3d 962 (7th Cir. 2012), nn. 692, 726

Power v. Summers, 226 F.3d 815 (7th Cir. 2000), p. 88; nn. 798–99, 1044

Purvis v. Oest, 614 F.3d 713 (7th Cir. 2010), n. 1291

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), n. 367

Rice v. Correctional Medical Services, 675 F.3d 650 (7th Cir. 2012), n. 850

Roe v. City of Waterbury, 542 F.3d 31 (7th Cir. 2008), n. 747

Roe v. Elyea, 631 F.3d 843 (7th Cir. 2011), n. 1565

Sanchez v. City of Chicago, 700 F.3d 919 (7th Cir. 2012), n. 458

Sherman v. Four County Counseling Center, 987 F.2d 397 (7th Cir. 1993), n. 1223

Sims, Estate of, v. County of Bureau, 506 F.3d 509 (7th Cir. 2007), n. 114

Smith v. Bray, 681 F.3d 888 (7th Cir. 2012), n. 831

Smith v. Chicago School Reform Board of Trustees, 165 F.3d 1142 (7th Cir. 1999), n. 852

Snyder v. King, 745 F.3d 242 (7th Cir. 2014), n. 876

Stevens, Estate of, v. City of Green Bay, 105 F.3d 1169 (7th Cir. 1997), nn. 356, 367

Stoner v. Wisconsin Department of Agriculture, Trade & Consumer Protection, 50 F.3d 

481 (7th Cir. 1995), n. 1064

Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), n. 876

T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010), n. 1028

Teesdale v. City of Chicago, 690 F.3d 829 (7th Cir. 2012), n. 883

Tesch v. City of Green Lake, 157 F.3d 465 (7th Cir. 1998), n. 488

Thayer v. Chiczewski, 697 F.3d 514 (7th Cir. 2012), nn. 646, 654
Section 1983 Litigation

372

Thomas v. Cook County Sheriff’s Department, 604 F.3d 293 (7th Cir. 2010), nn. 1033, 

1569

Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006), n. 407

Townsend v. Fuchs, 522 F.3d 765 (7th Cir. 2008), n. 285

Tully v. Barada, 599 F.3d 591 (7th Cir. 2010), n. 549

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), n. 1617

Valance v. Wisel, 110 F.3d 1269 (7th Cir. 1997), n. 82

Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012), n. 65

Vodak v. City of Chicago, 639 F.3d 738 (7th Cir. 2011), nn. 883, 994

Walker v. Calumet City, 565 F.3d 1031 (7th Cir. 2009), n. 1650

Walker v. Rowe, 791 F.2d 507 (7th Cir. 1986), n. 364

Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002), nn. 101, 144, 1396

Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997), n. 362

Warlik v. Cross, 969 F.2d 303 (7th Cir. 1992), n. 1294

Watkins v. Kasper, 599 F.3d 791 (7th Cir. 2010), n. 633

Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995), nn. 285, 290

Whitlock v. Brueggemann, 682 F.3d 567 (7th Cir. 2012), n. 815

Wilson v. Cook County, 742 F.3d 775 (7th Cir. 2014), n. 926

Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2001), n. 496

Woods v. Illinois Department of Children & Family Services, 710 F.3d 762 (7th Cir. 2013), 

n. 1420

Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993), n. 1431

Wragg v. Village of Thornton, 604 F.3d 464 (7th Cir. 2010), n. 747

Xiong v. Wagner, 700 F.3d 282 (7th Cir. 2012), nn. 358, 1164

Young v. Murphy, 90 F.3d 1225 (7th Cir. 1996), n. 1223

Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997), n. 1602

Eighth Circuit

281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011), n. 801

Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005), n. 1207

Andrews v. Fowler, 98 F.3d 1069 (8th Cir. 1996), n. 1011

Atkinson v. City of Mountain View, 709 F.3d 1201 (8th Cir. 2013), n. 880

Bernini v. City of St. Paul, 665 F.3d 997 (8th Cir. 2012), n. 497

Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009), n. 433

Buser v. Raymond, 476 F.3d 565 (8th Cir. 2007), n. 1110

Carpenter v. Gage, 686 F.3d 644 (8th Cir. 2012), n. 433

Christiansen v. West Branch Community School District, 674 F.3d 927 (8th Cir. 2012), 

n. 1359

Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977), n. 82

Clay v. Conlee, 815 F.2d 1164 (8th Cir. 1987), n. 1008

Coates v. Powell, 639 F.3d 471 (8th Cir. 2011), n. 1650

Cook v. City of BellaVilla, 582 F.3d 840 (8th Cir. 2009), n. 433

Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995), n. 291

Corpus v. Bennett, 430 F.3d 912 (8th Cir. 2005), n. 1556
Cases (by court)

373

Der v. Connolly, 666 F.3d 1120 (8th Cir. 2012), n. 517

Dickerson v. McClellan, 37 F.3d 251 (8th Cir. 1994), n. 1348

Doe v. Cassel, 403 F.3d 986 (8th Cir. 2005), n. 140

Dorheim v. Sholes, 430 F.3d 919 (8th Cir. 2005), n. 1234

Dover Elevator Co. v. Arkansas State University, 64 F.3d 442 (8th Cir. 1995), n. 282

Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014), n. 1028

Folkerts v. City of Waverly, 707 F.3d 975 (8th Cir. 2013), n. 329

Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), n. 367

Gibson v. Regions Financial Corp., 557 F.3d 842 (8th Cir. 2009), n. 772

Grover-Tsimi v. Minnesota, 449 F. App’x 529 (8th Cir. 2011), n. 801

Harris v. McSwain, 417 F. App’x 594 (8th Cir. 2011), n. 801

Hart v. City of Little Rock, 432 F.3d 801 (8th Cir. 2005), n. 367

Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001), n. 334

Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989), n. 1012

Hutson v. Walker, 688 F.3d 477 (8th Cir. 2012), n. 1164

Jenkins v. Missouri, 127 F.3d 709 (8th Cir. 1997), n. 1620

Knutson v. City of Fargo, 600 F.3d 992 (8th Cir. 2010), nn. 165, 1403

Kurtz v. City of Shrewsbury, 245 F.3d 753 (8th Cir. 2001), n. 548

L.L. Nelson Enterprises, Inc. v. County of St. Louis, 673 F.3d 799 (8th Cir. 2012), n. 1028

Lindsey v. City of Orrick, 491 F.3d 892 (8th Cir. 2007), n. 623

Littrell v. Franklin, 388 F.3d 578 (8th Cir. 2004), nn. 1207, 1322

Maness v. District Court of Logan County-Northern Division, 495 F.3d 943 (8th Cir. 

2007), n. 1113

Manzano v. South Dakota Department of Social Services, 60 F.3d 505 (8th Cir. 1995), 

n. 1234

McKenney v. Harrison, 635 F.3d 354 (8th Cir. 2011), n. 433

Mills v. City of Grand Rapids, 614 F.3d 495 (8th Cir. 2010), n. 332

Moore v. Carpenter, 404 F.3d 1043 (8th Cir. 2005), n. 783

Moots v. Lombardi, 453 F.3d 1020 (8th Cir. 2006), n. 632

Moyle v. Anderson, 571 F.3d 814 (8th Cir. 2009), n. 1033

Muhammad v. Lockhart, 104 F.3d 1069 (8th Cir. 1997), n. 1638

Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009), n. 1028

Nix v. Norman, 879 F.2d 429 (8th Cir. 1989), n. 848

Norfleet v. Arkansas Department of Human Services, 989 F.2d 289 (8th Cir. 1993), n. 358

O’Brien v. City of Greers Ferry, 873 F.2d 1115 (8th Cir. 1989), n. 1694

Rahn v. Hawkins, 464 F.3d 813 (8th Cir. 2006), nn. 451–52

Reasonover v. St. Louis County, 447 F.3d 569 (8th Cir. 2006), nn. 144, 1118

Reel v. Arkansas Department of Correction, 672 F.2d 693 (8th Cir. 1982), n. 1640

Robins v. Ritchie, 631 F.3d 919 (8th Cir. 2011), n. 174

Santiago v. Blair, 707 F.3d 984 (8th Cir. 2013), n. 631

Schaub v. Von Wald, 638 F.3d 905 (8th Cir. 2011), n. 1579

Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. 2014), n. 1216

Speer v. City of Wynne, 276 F.3d 980 (8th Cir. 2002), n. 1033

St. Louis, City of, v. Praprotnik, 798 F.2d 1168 (8th Cir. 1986), n. 893
Section 1983 Litigation

374

Terrell v. Larson, 396 F.3d 975 (8th Cir. 2005), n. 331

Thelma D. v. Board of Education, 934 F.2d 929 (8th Cir. 1991), n. 962

Wallingford v. Olson, 592 F.3d 888 (8th Cir. 2010), n. 429

Wax ’n Works v. City of St. Paul, 213 F.3d 1016 (8th Cir. 2000), n. 91

Whitson v. Stone County Jail, 602 F.3d 920 (8th Cir. 2010), n. 1028

Williams v. Butler, 863 F.2d 1398 (8th Cir. 1988), n. 883

Wilson v. Spain, 209 F.3d 713 (8th Cir. 2000), n. 382

Ninth Circuit

Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013), n. 1214

Acosta v. Hill, 504 F.3d 1323 (9th Cir. 2007), n. 453

A.D. v. California Highway Patrol, 712 F.3d 446 (9th Cir. 2013), n. 1322

AE v. County of Tulare, 666 F.3d 631 (9th Cir. 2012), nn. 136, 1004

Ahlmeyer v. Nevada System of Higher Education, 555 F.3d 1051 (9th Cir. 2009), n. 240

Allen v. City of Los Angeles, 92 F.3d 842 (9th Cir. 1996), n. 1598

Amaro, Estate of, v. City of Oakland, 653 F.3d 808 (9th Cir. 2011), n. 1457

Amos, Estate of, v. City of Page, 257 F.3d 1086 (9th Cir. 2001), n. 367

Armstrong v. Asselin, 734 F.3d 984 (9th Cir. 2013), nn. 249, 1216, 1260

Associacion de Trabajadores v. City of Lake Forest, 624 F.3d 1083 (9th Cir. 2010), 

nn. 1650–51

Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992), n. 91

Balla v. Idaho, 677 F.3d 910 (9th Cir. 2012), n. 1672

Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006), n. 1674

Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002), n. 435

Bingue v. Prunchak, 512 F.3d 1169 (9th Cir. 2008), n. 334

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), n. 891

Brewster v. Board of Education, 149 F.3d 971 (9th Cir. 1998), n. 627

Brown v. California Department of Corrections, 554 F.3d 747 (9th Cir. 2009), n. 1123

Bryan v. McPherson, 630 F.3d 805 (9th Cir. 2010), n. 433

Burns v. County of King, 883 F.2d 819 (9th Cir. 1989), n. 144

Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822 (9th Cir. 2003), 

n. 1454

Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016 (9th Cir. 2003), n. 1694

Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), n. 1464

Chavez v. United States, 683 F.3d 1102 (9th Cir. 2012), n. 1028

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), n. 964

Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999), n. 898

Chudacoff v. University Medical Center, 649 F.3d 1143 (9th Cir. 2011), n. 786

Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), n. 34

Clement v. City of Glendale, 518 F.3d 1090 (9th Cir. 2008), n. 1222

Cunningham v. Gates, 229 F.3d 1271 (9th Cir. 2000), n. 1011

Dang v. Cross, 422 F.3d 800 (9th Cir. 2005), nn. 34, 1574

Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), n. 963

Dehertoghen v. City of Hemet, 159 F. App’x 775 (9th Cir. 2005), n. 1629
Cases (by court)

375

Developmental Services Network v. Douglas, 666 F.3d 540 (9th Cir. 2011), n. 684

Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892 (9th Cir. 2008), n. 771

Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), n. 407

Dubner v. San Francisco, 266 F.3d 959 (9th Cir. 2001), nn. 502, 504

Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009), n. 1214

Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002), n. 1033

Fontana v. Haskin, 262 F.3d 871 (9th Cir. 2011), n. 382

Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006), n. 1203

George v. City of Long Beach, 973 F.2d 206 (9th Cir. 1992), n. 1036

George v. Morris, 736 F.3d 829 (9th Cir. 2013), n. 400

Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992), p. 106; nn. 898, 944–45

Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013), nn. 812, 916

Gonzalez v. City of Anaheim, 747 F.3d 789 (9th Cir. 2014), n. 397

Grossman v. City of Portland, 33 F.3d 1200 (9th Cir. 1994), n. 1214

Guzman v. Shewry, 552 F.3d 941 (9th Cir. 2009), n. 728

Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998), n. 1223

Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010), n. 151

Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712 (9th Cir. 2013), n. 1650

Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), n. 291

Hooper v. County of San Diego, 629 F.3d 1127 (9th Cir. 2011), n. 1369

Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000), n. 1223

Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004), nn. 161, 168

Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012), nn. 146, 548, 1028, 1123, 1128

Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994), nn. 82, 502–03, 1600

Lassiter v. City of Bremerton, 556 F.3d 1049 (9th Cir. 2009), n. 545

Levy, Estate of, v. City of Spokane, 534 F. App’x 595 (9th Cir. 2013), n. 433 

L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), n. 369

Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir. 2010), n. 1638

Marquez v. City of Phoenix, 693 F.3d 1167 (9th Cir. 2012), n. 433

Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011), n. 433

Maxwell v. County of San Diego, 697 F.3d 941 (9th Cir. 2012), n. 431

McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), n. 1396

Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 2001), nn. 451–52

Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996), n. 1112

Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993), n. 1594

Moss v. United States Secret Service, 675 F.3d 1213 (9th Cir. 2012), n. 431

Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010), n. 1389

OSU Student Alliance v. Ray, 699 F.3d 1053 (9th Cir. 2012), n. 1028

Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), n. 869

Patel v. Kent School District, 648 F.3d 965 (9th Cir. 2011), nn. 359, 957

Patton v. County of Kings, 857 F.2d 1379 (9th Cir. 1988), n. 1629

Posey v. Lake Pend Oreille School District No. 84, 546 F.3d 1121 (9th Cir. 2008), n. 620

Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995), n. 291

Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010), n. 1650
Section 1983 Litigation

376

Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005), nn. 630–31

Save Our Valley v. Sound Transit, 335 F.3d 932 (9th Cir. 2003), n. 728

Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), p. 48; nn. 396–97

Sheehan v. City and County of San Francisco, 743 F.3d 1211 (9th Cir. 2014), n. 407

Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir. 2005), n. 209

Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), n. 642

Slater v. Clarke, 700 F.3d 1200 (9th Cir. 2012), n. 1123

Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), nn. 450, 454

Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), n. 1028

Tamas v. Department of Social & Health Services, 630 F.3d 833 (9th Cir. 2010), nn. 358, 

1164

Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008), n. 1322

Torres v. City of Madera, 648 F.3d 1119 (9th Cir. 2011), p. 55; nn. 446–49, 1212

Tsao v. Desert Palace, Inc., 698 F.3d 1128, (9th Cir. 2012), n. 850

Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055 (9th Cir. 2006), n. 1698

United States v. Washington, 813 F.2d 1020 (9th Cir. 1987), n. 1640

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), n. 367

Tenth Circuit

Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), nn. 441, 963

Armijo v. Peterson, 601 F.3d 1065 (10th Cir. 2010), n. 517

Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007), n. 543

Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006), n. 174

Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007), n. 618

Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010), n. 390

Browder v. City of Moab, 427 F.3d 717 (10th Cir. 2005), n. 1698

Brown v. Day, 555 F.3d 882 (10th Cir. 2009), n. 1503

Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012), n. 174

Cavanaugh v. Woods Cross City, 718 F.3d 1244 (10th Cir. 2013), n. 454

Cavanaugh v. Woods Cross City, 625 F.3d 661 (10th Cir. 2010), n. 433

Cohen v. Longshore, 621 F.3d 1311 (10th Cir. 2010), n. 1381

Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010), n. 1028

Ellis v. Ogden City, 589 F.3d 1099 (10th Cir. 2009), n. 334

Fournerat v. Wisconsin Law Review, 420 F. App’x 816 (10th Cir. 2011), n. 801

Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009), n. 1396

Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), n. 1033

Garrett v. Fleming, 362 F.3d 692 (10th Cir. 2004), n. 1431

Garza v. Burnett, 672 F.3d 1217 (10th Cir. 2012), n. 1456

Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), n. 151

Gonzales v. Duran, 590 F.3d 855 (10th Cir. 2009), n. 1322

Green v. Post, 574 F.3d 1294 (10th Cir. 2009), n. 334

Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006), nn. 168, 175–76

Houston v. Norton, 215 F.3d 1172 (10th Cir. 2000), n. 1628

Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011), n. 642
Cases (by court)

377

Johnson v. City of Tulsa, 489 F.3d 1089 (10th Cir. 2007), n. 1672

Jones v. United Parcel Service, Inc., 674 F.3d 1187 (10th Cir. 2012), nn. 27, 1574

J.W. v. Utah, 647 F.3d 1006 (10th Cir. 2011), nn. 349, 358

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011), n. 649

Karr v. Smith, 774 F.2d 1029 (10th Cir. 1985), n. 505

Kenmen Engineering v. City of Union, 314 F.3d 468 (10th Cir. 2002), n. 168

Kikumura v. Osagie, 461 F.3d 1269 (10th Cir. 2006), n. 96

Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996), n. 1011

Lawrence v. Reed, 406 F.3d 1224 (10th Cir. 2005), n. 1214

Lewis v. City of Fort Collins, 903 F.2d 752 (10th Cir. 1990), n. 1308

Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010), n. 1028

Liebson v. New Mexico Corrections Department, 73 F.3d 274 (10th Cir. 1996), n. 362

Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006), nn. 207, 817, 1036, 1638, 1661

Little v. Jones, 607 F.3d 1245 (10th Cir. 2010), n. 1389

Manzanares v. City of Albuquerque, 628 F.3d 1237 (10th Cir. 2010), n. 1036

Martinez v. Carson, 697 F.3d 1252 (10th Cir. 2012), n. 818

Martinez v. Winner, 771 F.2d 424 (10th Cir. 1985), n. 1091

Mason v. Oklahoma Turnpike Authority, 182 F.3d 1212 (10th Cir. 1999), n. 1579

McClure v. Independent School District No. 16, 228 F.3d 1205 (10th Cir. 2000), n. 1571

Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir. 1989), p. 102; nn. 911–12

Migneault v. Peck, 204 F.3d 1003 (10th Cir. 2000), n. 240

Muscogee (Creek) Nation v. Oklahoma Tax Commission, 611 F.3d 1222 (10th Cir. 2010), 

n. 209

Pierce v. Gilchrist, 359 F.3d 1279 (10th Cir. 2004), n. 548

Pike v. City of Mission, 731 F.2d 655 (10th Cir. 1984), n. 1452

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), n. 1625

Roska v. Sneddon, 437 F.3d 964 (10th Cir. 2006), n. 1291

Rost v. Steamboat Springs RE-2 School District, 511 F.3d 1114 (10th Cir. 2008), n. 367

Santana v. City of Tulsa, 359 F.3d 1241 (10th Cir. 2004), n. 1383

Schneider v. City of Grand Junction Police Department, 717 F.3d 760 (10th Cir. 2013), 

nn. 821, 1028

Schwartz v. Booker, 702 F.3d 573 (10th Cir. 2012), n. 358

Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996), n. 367

Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990), nn. 1163, 1164

Stearns v. Clarkson, 615 F.3d 1278 (10th Cir. 2010), n. 1214

Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003), n. 1396

Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002), n. 80

Thomas v. Durastanti, 607 F.3d 655 (10th Cir. 2010), n. 429

Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), nn. 392, 450

Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir. 1985), n. 1467

Walton v. Gomez (In re Estate of Booker), 745 F.3d 405 (10th Cir. 2014), nn. 1009, 1028

Watson v. Kansas City, 857 F.2d 690 (10th Cir. 1988), n. 937

Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008), n. 545

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989), pp. 101–02; nn. 905–07
Section 1983 Litigation

378

Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883 (10th Cir. 1992), 

nn. 349, 358

Zinna v. Congrove, 680 F.3d 1236 (10th Cir. 2012), n. 1638

Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993), n. 963

Eleventh Circuit

31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), n. 1510

Abusaid v. Hillsborough County Board of County Commissioners, 405 F.3d 1298 (11th 

Cir. 2005), n. 838

Agripost, LLC v. Miami-Dade County, 525 F.3d 1049 (11th Cir. 2008), n. 1403

Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011), n. 1602

American Federation of Labor v. City of Miami, 637 F.3d 1178 (11th Cir. 2011), n. 879

American Federation of State, County & Municipal Employees v. Scott, 717 F.3d 851 (11th 

Cir. 2013), nn. 82, 517

Anderson v. Atlanta, 778 F.2d 678 (11th Cir. 1985), n. 1033

Bass v. Perrin, 170 F.3d 1312 (11th Cir. 1999), n. 285

Beshers v. Harrison, 495 F.3d 1260 (11th Cir. 2007), n. 429

Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003), n. 1594

Bryan v. Rich, 530 F.3d 1368 (11th Cir. 2008), n. 1395

Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003), n. 1465

Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005), p. 98; nn. 877–78

Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003), n. 1011

Craig v. Floyd County, 643 F.3d 1306 (11th Cir. 2011), n. 850

Dalrymple v. Reno, 334 F.3d 991 (11th Cir. 2003), n. 1011

Dean v. Barber, 951 F.2d 1210 (11th Cir. 1992), n. 813

Dean v. United States, 278 F.3d 1218 (11th Cir. 2002), n. 1421

D.W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997), n. 358

Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012), n. 432

Fennell v. Gilstrap, 559 F.3d 1212 (11th Cir. 2009), n. 487

Fils v. City of Aventura, 647 F.3d 1272 (11th Cir. 2011), n. 433

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir. 2012), n. 801

Gilliam, Estate of, v. City of Prattville, 639 F.3d 1041 (11th Cir. 2011), n. 1463

Gilmere v. City of Atlanta, 864 F.2d 734 (11th Cir. 1989), n. 1568

Gray v. Bostic, 720 F. 3d 887 (11th Cir. 2013), n. 1638

Grider v. City of Auburn, 618 F.3d 1240 (11th Cir. 2010), n. 545

Harris v. James, 127 F.3d 993 (11th Cir. 1997), nn. 692, 728

Hart v. Hodges, 587 F.3d 1288 (11th Cir. 2009), n. 1116

Houston v. Williams, 547 F.3d 1357 (11th Cir. 2008), n. 728

Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012), n. 433

Jackson v. Alabama, 405 F.3d 1276 (11th Cir. 2005), n. 626

Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002), n. 1322

Jordan v. Time, Inc., 111 F.3d 102 (11th Cir. 1997), n. 1694

Kamensky v. Dean, 148 F. App’x 878 (11th Cir. 2005), n. 896

Kingsland v. City of Miami, 382 F.3d 1220 (11th Cir. 2004), n. 548
Cases (by court)

379

Leslie v. Hancock County Board of Education, 720 F.3d 1338 (11th Cir. 2013), n. 620

Loftus v. Clark-Moore, 690 F.3d 1200 (11th Cir. 2012), n. 1164

Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994), n. 1659

Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989), p. 101; nn. 903–04

Mann v. Taser International, 588 F.3d 1291 (11th Cir. 2009), n. 433

McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996), n. 876

Mitchell v. Duval County School Board, 107 F.3d 837 (11th Cir. 1997), n. 369

Morrow v. Federal Bureau of Prisons, 610 F.3d 1271 (11th Cir. 2010), n. 1381

Nicholson v. Shafe, 558 F.3d 1266 (11th Cir. 2009), n. 176

Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009), n. 433

Phillips v. Irvin, 222 F. App’x 928 (11th Cir. 2007), n. 641

Quinn v. Monroe County, 330 F.3d 1320 (11th Cir. 2003), n. 896

Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), nn. 139, 1286 

Rankin v. Evans, 133 F.3d 1425 (11th Cir. 1998), n. 502

Ross v. Jefferson County Department of Health, 695 F.3d 1183 (11th Cir. 2012), n. 1066

Scott v. Taylor, 405 F.3d 1251 (11th Cir. 2005), n. 1193

Sibley v. Lando, 437 F.3d 1067 (11th Cir. 2005), n. 1091

Snover v. City of Starke, 398 F. App’x 445 (11th Cir. 2010), n. 413

Sullivan v. School Board of Pinellas County, 773 F.2d 1182 (11th Cir. 1985), n. 1627

Tinker v. Beasley, 429 F.3d 1324 (11th Cir. 2005), n. 1203

Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008), n. 1389

Utility Automation, 2000 Inc. v. Choctawhatchee Electric Cooperative, Inc., 298 F.3d 1238 

(11th Cir. 2002), n. 1647

Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), n. 1291

Watts v. Florida International University, 495 F.3d 1289 (11th Cir. 2007), n. 114

Wayne v. Jarvis, 197 F.3d 1098 (11th Cir. 1999), n. 1431

Williams v. Alabama State University, 102 F.3d 1179 (11th Cir. 1997), nn. 1295, 1297

Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991), n. 29

Wooten v. Campbell, 49 F.3d 696 (11th Cir. 1995), n. 358

Wright v. Lovin, 32 F.3d 538 (11th Cir. 1994), n. 359

Zivojinovich v. Barner, 525 F.3d 1059 (11th Cir. 2008), n. 433

D.C. Circuit

Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996), n. 996

Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006), n. 1011

Carr v. District of Columbia, 587 F.3d 401 (D.C. Cir. 2009), n. 497

Doe v. Metropolitan Police Department, 445 F.3d 460 (D.C. Cir. 2006), n. 79

Donovan, In re, 877 F.2d 982 (D.C. Cir. 1989), n. 1667

English v. District of Columbia, 651 F.3d 1 (D.C. Cir. 2011), n. 407

Gray v. Poole, 275 F.3d 1113 (D.C. Cir. 2002), n. 1164

Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir. 1987), n. 1011

International Action Center v. United States, 365 F.3d 20 (D.C. Cir. 2004), n. 1011

Jordan v. United States Department of Justice, 691 F.2d 514 (D.C. Cir. 1982), n. 1626

Moore v. Hartman, 571 F.3d 62 (D.C. Cir. 2009), n. 640
Section 1983 Litigation

380

Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011), n. 1028

People for Ethical Treatment of Animals v. Gittens, 396 F.3d 416 (D.C. Cir. 2005), nn. 803, 

1065

Phillips, Estate of, v. District of Columbia, 455 F.3d 397 (D.C. Cir. 2006), n. 364

Pitt v. District of Columbia, 491 F.3d 494 (D.C. Cir. 2007), n. 548

Roth v. King, 449 F.3d 1272 (D.C. Cir. 2006), n. 1106

Settles v. U.S. Parole Commission, 429 F.3d 1098 (D.C. Cir. 2005), nn. 793, 1044

Tarpley v. Greene, 684 F.2d 1 (D.C. Cir. 1982), n. 91

Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007), n. 618

District Courts

Amato v. City of Saratoga Springs, 991 F. Supp. 62 (N.D.N.Y. 1998), n. 1662

Anderson v. Rochester-Genesee Regional Transportation Authority, 388 F. Supp. 2d 159 

(W.D.N.Y. 2005), nn. 1662, 1673

Anemone v. Metropolitan Transportation Authority, 410 F. Supp. 2d 255 (S.D.N.Y. 2006), 

n. 806

BK & SK v. New Hampshire Department of Health & Human Services, 814 F. Supp. 2d 59 

(D. N.H. 2011), n. 692

Baines v. Masiello, 288 F. Supp. 2d 376 (W.D.N.Y. 2003), n. 841

Banks v. Yokemick, 177 F. Supp. 2d 239 (S.D.N.Y. 2001), n. 1462

Blackman v. District of Columbia, 397 F. Supp. 2d 12 (D.D.C. 2005), n. 1660

Blake v. City of New York, No. 05-Civ. 6652 (BSJ), 2007 U.S. Dist. LEXIS 49160 (S.D.N.Y. 

July 3, 2007), n. 453

Bookman v. Shubzda, 945 F. Supp. 999 (N.D. Tex. 1996), n. 249

Canman v. Bonilla, 778 F. Supp. 2d 179 (D.P.R. 2011), n. 801

Coastal Communications Service, Inc. v. City of New York, 658 F. Supp. 2d 425 (E.D.N.Y. 

2009), n. 190

Cotton v. District of Columbia, 421 F. Supp. 2d 83 (D.D.C. 2006), n. 841

Cramer v. Chiles, 33 F. Supp. 2d 1342 (S.D. Fla. 1999), n. 801

Doe v. Ward, 282 F. Supp. 2d 323 (W.D. Pa. 2003), n. 1616

Draper v. Darby Township Police Department, 777 F. Supp. 2d 850 (E.D. Pa. 2011), n. 801

Fennell v. Rodgers, 762 F. Supp. 2d 727 (D. Del. 2011), n. 801

Fishman v. Daines, 743 F. Supp. 2d 127 (E.D.N.Y. 2010), n. 801

Fontana v. Alpine County, 750 F. Supp. 2d 1148 (E.D. Cal. 2010), n. 800

Hickson v. Marina Associates, 743 F. Supp. 2d 362 (D.N.J. 2010), n. 548

Holland v. Bramble, 775 F. Supp. 2d 748 (D. Del. 2011), n. 801

Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995), n. 692

Lee Testing & Engineering Inc. v. Ohio Department of Transportation, 855 F. Supp. 2d 722 

(S.D. Ohio 2012), n. 801

Luthy v. Proulx, 464 F. Supp. 2d 69 (D. Mass. 2006), n. 997

McCachren v. Blacklick Valley School District, 217 F. Supp. 2d 594 (W.D. Pa. 2002), n. 841

McDow v. Rosad, 657 F. Supp. 2d 463 (S.D.N.Y. 2009), n. 1653

Mejia v. City of New York, 228 F. Supp. 2d 234 (E.D.N.Y. 2002), n. 850

Mitchell v. City of New Haven, 854 F. Supp. 2d 238 (D. Conn. 2012), n. 739
Cases (by court)

381

Moore v. Nelson, 394 F. Supp. 2d 1365 (M.D. Ga. 2005), n. 335

Morningside Supermarket Co. v. New York State Department of Health, 432 F. Supp. 2d 

334 (S.D.N.Y. 2006), n. 190

National Ass’n of Government Employees v. Mulligan, 849 F. Supp. 2d 167 (D. Mass. 

2012), n. 1540

Replay, Inc. v. Secretary of Treasury of Puerto Rico, 778 F. Supp. 2d 207 (D.P.R. 2011), 

n. 801

Reynolds v. Giuliani, 118 F. Supp. 2d 352 (S.D.N.Y. 2000), n. 801

Robinson v. District of Columbia, 403 F. Supp. 2d 39 (D.D.C. 2005), n. 806

Smiley v. Alabama Department of Transportation, 778 F. Supp. 2d 1283 (M.D. Ala. 2011), 

n. 801

Solivan v. Dart, 897 F. Supp. 2d 694 (N.D. Ill. 2012), n. 1432

System Management, Inc. v. Loiselle, 154 F. Supp. 2d 195 (D. Mass. 2001), n. 1618

Walsh v. Boston University, 661 F. Supp. 2d 91 (D. Mass. 2009), n. 1647

Wereb v. Maui County, 830 F. Supp. 2d 1026 (D. Haw. 2011), n. 958

Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991 (N.D. Ill. 2006), nn. 587, 806

Wimberly v. City of Clovis, 375 F. Supp. 2d 1120 (D.N.M. 2004), n. 852

State Court

Shaw v. Leatherberry, 706 N.W. 2d 299 (Wis. 2005), n. 82

383

Appendix: Model Instructions

Model Instruction 1: Section 1983—Elements of Claim—Action Under 

Color of State Law

[Plaintiff] must prove both of the following elements by a preponderance 

of the evidence:

First: [Defendant] acted under color of state law.

Second: While acting under color of state law, [defendant] deprived 

[plaintiff] of a federal [constitutional right][statutory right].

I will give you more details on action under color of state law, after 

which I will tell you the elements [plaintiff] must prove to establish the 

violation of [his/her] federal [constitutional right] [statutory right].

The first element of [plaintiff’s] claim is that [defendant] acted under 

color of state law. This means that [plaintiff] must show that [defendant] 

was using power that [he/she] possessed by virtue of state law. 

A person can act under color of state law even if the act violates state 

law. The question is whether the person was clothed with the authority of 

the state, by which I mean using or misusing the authority of the state. 

By “state law,” I mean any statute, ordinance, regulation, custom or usage of any state. And when I use the term “state,” I am including any political subdivisions of the state, such as a county or municipality, and also any 

state, county or municipal agencies.

Source: Third Circuit Model Jury Instructions Civil 4.3 and 4.4 (2011)

Model Instruction 2: Fourth Amendment Excessive Force Claim

In general, a seizure of a person is unreasonable under the Fourth Amendment if a police officer uses excessive force [in making a lawful arrest] [and] 

[or] [in defending [himself] [herself] [others]. Thus, in order to prove an 

unreasonable seizure in this case, the plaintiff must prove by a preponderance of the evidence that the officer[s] used excessive force when [insert 

factual basis of claim].

Under the Fourth Amendment, a police officer may only use such force 

as is “objectively reasonable” under all the circumstances. In other words, 

you must judge the reasonableness of a particular use of force from the 

perspective of a reasonable officer on the scene and not with the 20/20 

vision of hindsight. 
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384

In determining whether the officer[s] used excessive force in this case, 

consider all of the circumstances known to the officer[s] on the scene, 

including:

1. The severity of the crime of other circumstances to which the officer[s] [was] [were] responding;

2. Whether the plaintiff posed an immediate threat to the safety of the 

officer[s] or to others;

3. Whether the plaintiff was actively resisting arrest or attempting to 

evade arrest by flight;

4. The amount of time and any changing circumstances during which 

the officer had to determine the type and amount of force that appeared 

to be necessary;

5. The type and amount of force used; 

6. The availability of alternative methods [to take the plaintiff into custody] [to subdue the plaintiff];

7. Other factors particular to the case.

Source: Ninth Circuit Manual of Model Jury Instructions Civil 9.22 (2003)

Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim

To succeed on his claim of excessive use of force, Plaintiff must prove each 

of the following things by a preponderance of evidence: 

1. Defendant used force on Plaintiff;

2. Defendant intentionally used extreme or excessive cruelty toward 

Plaintiff for the purpose of harming him, and not in a good faith effort to 

maintain or restore security or discipline;

3. Defendant’s conduct cased harm to Plaintiff;

4. [Defendant acted under color or law].

In deciding whether Plaintiff has proved that Defendant intentionally used 

extreme or excessive cruelty toward Plaintiff, you many consider such factors as:

• the need to use force;

• the relationship between the need to use force and the amount of 

force used;

• the extent of Plaintiff’s injury;

• whether Defendant reasonably believed there was a threat to the 

safety of staff or prisoners;

• any efforts made by Defendant to limit the amount of force used.
Model Instructions

385

 [In using force against a prisoner, officers cannot realistically be expected to consider every contingency or minimize every possible risk.]

If you find that Plaintiff has proved each of these things by a preponderance of the evidence, then you should find for Plaintiff, and go on to 

consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any one 

of these things by a preponderance of the evidence, then you should find 

for Defendant, and you will not consider the question of damages.

Source: Seventh Circuit Federal Jury Instructions Civil 7.15 (2010)

Model Instruction 4: Fourth Amendment False Arrest Claim

In this case, Plaintiff claims that Defendant falsely arrested him. To succeed 

on this claim, Plaintiff must prove each of the following things by a preponderance of the evidence:

1. Defendant arrested Plaintiff;

2. Defendant did not have probable cause to arrest Plaintiff; and 

3. Defendant was acting under color of law.

If you find that Plaintiff has proved each of these things by a preponderance of the evidence, then you should find for Plaintiff, and go on to 

consider the question of damages.

If, on the other hand, you find that Plaintiff has failed to prove any one 

of these things by a preponderance of the evidence, then you should find 

for Defendant, and you will not consider the question of damages.

Let me explain what “probable cause” means. There is probable cause 

for an arrest if at the moment the arrest was mad, a prudent person would 

have believed that Plaintiff [had committed/was committing] a crime. 

In making this decision, you should consider what Defendant knew and 

what reasonably trustworthy information Defendant had received.

[It is not necessary that Defendant had probable cause to arrest Plaintiff for [offense in case], so long as Defendant had probably case to arrest 

him for some criminal offense.] [It is not necessary that Defendant had 

probable cause to arrest Plaintiff for all of the crimes he was charged with, 

so long as Defendant had probable cause to arrest him for one of those 

crimes.]

Probable cause requires more than just a suspicion. But it does not need 

to be based on evidence that would be sufficient to support a conviction, or 

even a showing that Defendant’s belief was probably right. [The fact that 
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386

Plaintiff was later acquitted of [offense in case] does not by itself mean that 

there was no probable cause at the time of his arrest.]

Source: Seventh Circuit Federal Jury Instructions Civil, 7.05 and 7.06 (2010)

Model Instruction 5: Municipal Liability—General Instruction

If you find that [plaintiff] was deprived of [describe federal right], [municipality] is liable for that deprivation if [plaintiff ] proves by a preponderance of the evidence that the deprivation resulted from [municipality’s] 

official policy or custom—in other words, that [municipality’s] official 

policy or custom caused the deprivation.

[It is not enough for [plaintiff] to show that [municipality] employed a 

person who violated [plaintiff’s] rights. [Plaintiff] must show that the violation resulted from [municipality’s] official policy or custom.] “Official 

policy or custom” includes any of the following [include any of the following theories that are warranted by the evidence]:

• a rule or regulation promulgated, adopted, or ratified by [municipality’s] legislative body;

• a policy statement or decision that is officially made by [municipality’s] [policy-making official]; 

• a custom that is a widespread, well-settled practice that constitutes 

a standard operating procedure of [municipality]; or 

• [inadequate training] [inadequate supervision] [inadequate 

screening during the hiring process] [failure to adopt a needed 

policy]. However, [inadequate training] [inadequate supervision] 

[inadequate screening during the hiring process] [failure to adopt 

a needed policy]. However, [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] failure to adopt a needed policy] does not count as “official policy 

or custom” unless the [municipality] is deliberately indifferent to 

the fact that a violation of [describe the federal right] is highly 

predictable consequence of the [inadequate training] [inadequate 

supervision] [inadequate screening during the hiring process] 

[failure to adopt a needed policy]. I will explain this further in a 

moment. 
Model Instructions

387

I will now proceed to give you more details on [each of] the ways[s] in 

which plaintiff] may try to establish that an official policy or custom of 

[municipality] caused the deprivation.

Source: Third Circuit Model Jury Instructions Civil 4.6.9 (2011)

Model Instruction 6: Municipal Liability—Inadequate Training or 

Supervision

[Plaintiff] claims that [municipality] adopted a policy of [inadequate 

training] [inadequate supervision], and that this policy caused the violation of [plaintiff’s] [specify right].

In order to hold [municipality] liable for the violation of [plaintiff’s] 

specify right], you must find that [plaintiff] has proved each of the following three things by a preponderance of the evidence:

First: [[Municipality’s] training program was inadequate to train its 

employees to carry out their [duties] [municipality] failed adequately to 

supervise its employees].

Second: [Municipality’s] failure to [adequately train] [adequately 

supervise] amounted to deliberate indifference to the fact that inaction 

would obviously result in the violation of [specify right].

Third: [Municipality’s] failure to [adequately train] [adequately supervise] proximately caused the violation of [specify right].

In order to find that [municipality’s] failure to [adequately train] [adequately supervise] amounted to deliberate indifference, you must find that 

[plaintiff] has proved each of the following three things by a preponderance of the evidence: 

First: [Governing body] or [policy-making official] knew that employees would confront a particular situation.

Second: The situation involved [a matter that employees had a history 

of mishandling].

Third: The wrong choice by an employee in that situation will frequently cause a deprivation of [specify right].

In order to find that [municipality’s] failure to [adequately train] [adequately supervise] proximately caused the violation of [plaintiff’s] federal 

right, you must find that [plaintiff] has proved by a preponderance of the 

evidence that [municipality’s] deliberate indifference led directly to the 

deprivation of [plaintiff’s] [specify right].

Source: Third Circuit Model Jury Instructions Civil 4.6.7 (2011)
Section 1983 Litigation

388

Model Instruction 7: Compensatory Damages

If you find in favor of Plaintiff, then you must determine the amount of 

money that will fairly compensate Plaintiff for any injury that you find he 

sustained [and is reasonably certain to sustain in the future] as a direct result of [insert appropriate language, such as “the failure to provide plaintiff with medical case,” etc.] [These are called “compensatory damages”.]

Plaintiff must prove his damages by a preponderance of the evidence. 

Your award must be based on evidence and not speculation or guesswork. 

This does not mean, however, that compensatory damages are restricted to 

the actual loss of money; they include both the physical and mental aspects 

of injury, even if they are not easy to measure. 

You should consider the following types of compensatory damages, and 

no others:

[1. The reasonable value of medical care and supplies that Plaintiff reasonably needed and actually received [as well as the present value of the care 

and supplies that he is reasonably certain to need and receive in the future.]]

[2. The [wages, salary, profits, earning capacity] that Plaintiff has lost 

[and the present value of the [wages, salary, profits, earning capacity] that 

Plaintiff is reasonably certain to lose in the future] because of his [inability/

diminished ability] to work.]

[When I say “present value,” I mean the sum of money needed now to 

which, together with what that sum may reasonably be expected to earn in 

the future, will equal the amounts of those monetary losses at the times in 

the future when they will be sustained.]

[3. The physical [and mental/emotional] pain and suffering [and disability/loss or a normal life] that Plaintiff has experienced [and is reasonably certain to experience in the future]. No evidence of the dollar value of 

physical [or mental/emotional] pain and suffering [or disability/loss of a 

normal life] has been or needs to be introduced. There is no exact standard 

for setting the damages to be awarded on account of pain and suffering. You 

are to determine an amount that will fairly compensate the Plaintiff for the 

injury he has sustained.]

[If you find in favor of Plaintiff but find that the plaintiff has failed to 

prove compensatory damages, you must return a verdict for Plaintiff in the 

amount of one dollar ($1.00).]

Source: Seventh Circuit Federal Jury Instructions Civil 7.23 (footnote omitted) 

(2010)
Model Instructions

389

Model Instruction 8: Punitive Damages

If you find for Plaintiff, you may, but are not required to, assess punitive 

damages against Defendant. The purposes of punitive damages are to punish a defendant for his conduct and to serve as an example or warning to 

Defendant and others not to engage in similar conduct in the future. 

Plaintiff must prove by a preponderance of the evidence that punitive 

damages should be assessed against Defendant. You may assess punitive 

damages only if you find that his conduct was malicious or in reckless disregard of Plaintiff’s rights. Conduct is malicious if it is accompanied by ill 

will or spite, or is done for the purpose of injuring Plaintiff. Conduct is in 

reckless disregard of Plaintiff’s rights if, under the circumstances, it reflects 

complete indifference to Plaintiff’s safety or rights.

If you find that punitive damages are appropriate, then you must use 

sound reason in setting the amount of those damages. Punitive damages, if 

any, should be in an amount sufficient to fulfill the purposes that I have described to you, but should not reflect bias, prejudice, or sympathy toward 

either/any party. In determining the amount of any punitive damages, you 

should consider the following factors:

• the reprehensibility of Defendant’s conduct;

• the impact of Defendant’s conduct on Plaintiff;

• the relationship between Plaintiff and Defendant;

• the likelihood that Defendant would repeat the conduct if an 

award of punitive damages is not made;

• Defendant’s financial condition;]

• the relationship of any award of punitive damages to the 

amount of actual harm the Plaintiff suffered.

Source: Seventh Circuit Federal Jury Instructions Civil 7.24 (2010)
The Federal Judicial Center 

Board

The Chief Justice of the United States, Chair

Judge John D. Bates, Director of the Administrative Office of the U.S. Courts 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of

 New York 

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas 

Director

Judge Jeremy D. Fogel 

Deputy Director

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

 By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes the director of the Administrative Office of the U.S. Courts and seven judges elected 

by the Judicial Conference. 

 The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training for judges and court staff, including 

in-person programs, video programs, publications, curriculum packages for in-court training, and Web-based programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial 

Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational mission. 

The Federal Judicial History Office helps courts and others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and 

legal officials from foreign countries and assesses how to inform federal judicial personnel 

of developments in international law and other court systems that may affect their work. 

Two units of the Director’s Office—the Information Technology Office and the Editorial & 

Information Services Office—support Center missions through technology, editorial and 

design assistance, and organization and dissemination of Center resources.