Section 1983

Litigation

Karen M. Blum

Suffolk University Law School

Kathryn R. Urbonya

The College of William & Mary School of Law

Federal Judicial Center 1998

This Federal Judicial Center publication was undertaken in furtherance

of the Center’s statutory mission to conduct and stimulate research and

development for the improvement of judicial administration. The views

expressed are those of the authors and not necessarily those of the Federal

Judicial Center.

iii

Contents

Preface vii

Chapter 1: Introduction to Constitutional Torts Litigation 1

History 2

Jurisdiction 3

Prima Facie Case 4

Chapter 2: Action “Under Color of Law” 5

Joint Actions 7

Intertwined Relationships 8

State Encouragement 10

Public Function 10

Chapter 3: Deprivation of Selected Constitutional Rights 13

Procedural Due Process Claims 13

Substantive Due Process Claims 18

DeShaney and Affirmative Duty Cases 19

Functional Custody 19

State-Created Danger 22

State of Mind 24

Use of Force by Governmental Officials 25

Unreasonable Force Claims Under the Fourth Amendment 27

Malicious Force Claims Under the Eighth Amendment 29

Excessive Force Claims Under the Fourteenth Amendment 30

Malicious Prosecution Claims Under the Fourth Amendment 31

Conditions-of-Confinement Claims Under the Eighth Amendment 35

First Amendment Claims 37

Political Patronage Claims 38

Free Speech Claims 39

Dormant Commerce Clause Claims 40

Chapter 4: Deprivation of Federal Statutory Rights 43

Maine v. Thiboutot: “Plain Language” Approach 43

Defining the Limits of “And Laws” Actions 43

Enforceable Rights 44

Wilder and Suter Synthesized 48
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Comprehensive Scheme: Congress’s Intent to Foreclose 49

Chapter 5: Governmental and Supervisory Liability 51

State Liability: Eleventh Amendment Immunity and Status as “Person” Under

§ 1983 51

Municipal Liability 55

No Vicarious Liability 55

Personal and Official Capacity Suits 56

Pleading Requirement 57

Methods of Establishing Municipal Liability 58

Unconstitutional Policy 58

“Custom or Usage” 58

Failure to Train, Supervise, or Discipline 59

Failure to Screen in Hiring 62

Conduct of Policy-Making Officials Attributed to Governmental Entity 64

Supervisory Liability 67

Chapter 6: Absolute Immunity: A Functional Approach 71

Legislative Functions 72

Judicial Acts 73

Distinguishing Judicial and Quasi-Judicial Functions from Administrative

Acts 75

Prosecutorial Functions vs. Investigative Acts 76

Other Official Acts Protected by Absolute Immunity 78

Chapter 7: Qualified Immunity from Damages 81

Defense to Liability 82

“Clearly Established Law” as Applied to Fourth Amendment Claims 83

Immunity from Discovery and Trial 84

Motion to Dismiss 85

Motions for Summary Judgment Before and After Discovery 87

Role of the Judge and Jury 89

Interlocutory Appeals 90

Chapter 8: Procedural Defenses 95

Accrual, Statutes of Limitations, and Tolling Rules 95

Claim and Issue Preclusion 96

Chapter 9: Abstention Doctrines 99

Pullman Abstention 99

Burford Abstention 101

Younger Abstention 103

Colorado River Abstention 106

Chapter 10: Remedies 109

Compensatory Damages 109
CONTENTS

v

Punitive Damages 110

Survival and Wrongful Death Actions Under § 1983 112

Injunctive Relief 113

Declaratory Relief 114

Abstention Doctrines and Statutory Bars to Relief Under § 1983 115

Attorney’s Fees 116

Prison Litigation Reform Act (PLRA) 116

Table of Cases 119

vii

Preface

This monograph analyzes the fundamental issues that arise in litigation

under 42 U.S.C. § 1983, the statute for redressing constitutional and federal statutory violations, and the case law interpreting those issues. Research for this first edition concluded with the 1997–1998 Supreme

Court term.

For a more in-depth treatment of § 1983 lawsuits, one should consult

two leading treatises: Section 1983 Litigation (3d ed. 1997), by Martin A.

Schwartz and John E. Kirklin, and Civil Rights and Civil Liberties Litigation (4th ed. 1998), by Sheldon H. Nahmod.

We would like to thank Judge Rya W. Zobel, director of the Federal

Judicial Center, Judge Thomas F. Hogan (District of the District of Columbia), Judge Virginia M. Morgan (Eastern District of Michigan), and

Magistrate Judge Jacob Hagopian (District of Rhode Island) for reviewing drafts of this manuscript. We also deeply appreciate the excellent

editorial support from Kris Markarian of the FJC.

1

Chapter 1

Introduction to

Constitutional Torts

Litigation

Title 42, § 1983 of the U.S. Code provides a mechanism for seeking redress for an alleged deprivation of a litigant’s federal constitutional and

federal statutory rights by persons acting 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, 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

Litigating under this statute is complex. Through the years, the Supreme Court has been able to interpret the terms “person,” “under color

of law,” “subjects, or causes to be subjected,” and “and laws.” However,

the statute “provides little or no guidance regarding important subjects

such as the measure of damages, availability of punitive damages, requirements for equitable relief, statute of limitations, survival of claims,

1. 42 U.S.C. § 1983 (1996).
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2

proper parties, and immunities from suit.”2 In an attempt to resolve

these issues, the Court has taken steps to examine congressional intent,

common-law practices, policy concerns, federalism issues, and comity

problems.

History

Congress passed 42 U.S.C. § 1983 in 1871 as section 1 of the “Ku Klux

Klan Act.” The statute did not emerge as a tool for checking the abuse by

state officials, however, 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

The Monroe Court resolved two important issues that allowed 42

U.S.C. § 1983 to become a powerful statute for enforcing rights secured

by the Fourteenth Amendment. First, it held that actions taken by state

governmental officials, even if contrary to state law, were nevertheless

actions taken “under color of law.” Second, the Court held that injured

individuals have a federal remedy under 42 U.S.C. § 1983 even if the officials’ actions also violated state law. In short, the statute was intended to

provide a supplemental remedy. The federal forum was necessary to vindicate federal rights because, according to Congress in 1871, state courts

could not protect Fourteenth Amendment rights because of their “prejudice, passion, neglect, [and] intolerance.”5

With Monroe opening the door to the federal courthouse, constitutional litigation against state officials developed. Later, plaintiffs seeking

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

counties as well. They also sought prospective injunctive relief against

state officials. Ultimately, the federal court became the place to reform

state governmental practices.

2. Jack M. Beerman, A Critical Approach to Section 1983 with Special Attention to

Sources of Law, 42 Stan. L. Rev. 51 (1989).

3. 365 U.S. 167 (1961).

4. Id. at 173–75.

5. Id. at 180.
CHAPTER 1: INTRODUCTION TO CONSTITUTIONAL TORTS LITIGATION

3

Jurisdiction

Two jurisdictional statutes apply to 42 U.S.C. § 1983 litigation in federal

court: 28 U.S.C. § 1343(a)(3),6

 the jurisdictional counterpart of 42 U.S.C.

§ 1983; and 28 U.S.C. § 1331,7

 the general federal question statute. Of the

two statutes, § 1331 provides for more expansive jurisdiction because it

affords jurisdiction in cases raising a federal question. In contrast,

§ 1343(a)(3) limits federal jurisdiction to suits involving “equal rights.”

Neither statute sets an amount that must be in controversy for jurisdiction to attach.

With jurisdiction over federal claims, many federal courts in 42 U.S.C.

§ 1983 suits also have jurisdiction to adjudicate state law claims that arise

out of “a common nucleus of operative fact.” 8

 Formerly known as ancillary and pendent jurisdiction, supplemental jurisdiction under 28 U.S.C.

§ 1367 permits both pendent claim and pendent party jurisdiction.9

 28

U.S.C. § 1367 changed “the preexisting law in that it makes supplemental

jurisdiction mandatory, not discretionary.”10

6. 28 U.S.C. § 1343(a)(3) (1993) provides as follows:

(a) The district courts shall have original jurisdiction of any civil action authorized by

law to be commenced by any person: . . . (3) To redress the deprivation, under color of

any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or

immunity secured by the Constitution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons within the jurisdiction of the

United States.

7. 28 U.S.C. § 1331 (1993) provides that “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United

States.”

8. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).

9. 28 U.S.C. § 1367(a) (1993) provides as follows:

[I]n any civil action of which the district courts have original jurisdiction, the district

courts shall have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part of the same case

or controversy under Article III of the United States Constitution. Such supplemental

jurisdiction shall include claims that involve the joinder or intervention of additional

parties.

10. Erwin Chemerinsky, Federal Jurisdiction, § 5.4, at 317 (2d ed. 1994). The district

court may decline to exercise supplemental jurisdiction in the following circumstances:

(1) the claim raises a novel or complex issue of state law;

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction;

(3) the district court has dismissed all claims over which it has original jurisdiction;

(4) in exceptional circumstances, where there are other compelling reasons for declining jurisdiction.

28 U.S.C. § 1367(b) (1993).
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Prima Facie Case

To establish a prima facie case under 42 U.S.C. § 1983, plaintiffs must

allege two elements: (1) the action occurred “under color of law” and (2)

the action is a deprivation of a constitutional right or a federal statutory

right.11 The first element, discussed in Chapter 2, infra, involves a factspecific inquiry wherein the court must examine the relationship between

the challenged action and the government. The second element is explained in Chapters 3, 4, and 5, which deal with the First, Fourth, Eighth,

and Fourteenth Amendments.

11. Parratt v. Taylor, 451 U.S. 527, 535 (1981).
5

Chapter 2

Action “Under Color of

Law”

Title 42, § 1983 of the U.S. Code imposes liability only upon those individuals and entities that act “under color of law.” In the typical § 1983

case, the under-color-of-law inquiry is not difficult because plaintiffs sue

governmental employees and entities for conduct pursuant to their governmental duties and powers.12 However, when plaintiffs sue private actors who are “linked” to state officials in different ways, many courts13

and scholars14 have struggled to distinguish between private action and

action under color of law. In response, the Supreme Court has articulated

two guideposts. First, any state action under the Fourteenth Amendment

is action under color of law.15 Second, when the defendant is not a government employee, but is somehow linked to the government, courts

12. Tennessee v. Garner, 471 U.S. 1, 5–7 (1985) (police officer and city were sued for

use of deadly force) (discussed infra text accompanying notes 135–38).

13. See, e.g., Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961, 964 (1995)

(stating that “[i]t is fair to say that ‘our cases deciding when private action might be

deemed that of the state have not been a model of consistency’”) (quoting Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 632 (1991) (O’Connor, J., dissenting)).

14. Laurence H. Tribe, American Constitutional Law, § 81-1, at 1609 (2d ed. 1988)

(“the Supreme Court has not succeeded in developing a body of state action ‘doctrine,’ a

set of rules for determining whether governmental or private actors are to be deemed

responsible for an asserted constitutional violation”).

15. West v. Atkins, 487 U.S. 42, 49–50 (1988); Lugar v. Edmondson Oil Co., 457 U.S.

922, 935 (1982). Action “under color of law,” however, would not constitute state action

if a court were to interpret the “under color of law” element to mean that the person

merely acted “‘with the knowledge of and pursuant to [a] statute.’” Id. at 935 n.18 (quoting Adickes v. Kress & Co., 398 U.S. 144, 162 n.23 (1970)).
SECTION 1983 LITIGATION

6

must question whether there was joint action, an intertwined relationship, state encouragement, or a public function performed.16

When a plaintiff sues a governmental entity, such as a city or county,

for a constitutional violation arising from its policy or custom, action

under color of law is present because the entity was created by state law.17

A corporation can be a governmental entity if the government created it

to further its objectives and retains permanent control over it.18 Because

a governmental entity acts only through its agents or employees, under

most circumstances, its employees also act under color of law.

Government employees act under color of law when performing their

duties, whether they act in compliance with state law, contrary to it,19 or

exercise professional discretion. 20 Actions pursuant to state law easily reveal the link between the employee and the state. Actions contrary to

state law are also actions under color of law because employees are given

the power to act on behalf of the government.21 Similarly, state employees or contractors who exercise professional judgment during the course

of their employment act under color of law. Although the assertion of

independent judgment may appear to suggest autonomy, professionals,

such as prison physicians, exercise this judgment on behalf of the state,22

in furtherance of the goals of the state.

In some circumstances, governmental employees do not act under

color of law.23 Public defenders, for example, although paid by the state

to defend a criminal suspect,24 act as an adversary to the state. The only

link between the public defenders and the state is money. Joint action can

exist, however, if public defenders conspire with other state officials

16. Martin A. Schwartz & John E. Kirklin, 1A Section 1983 Litigation: Claims & Defenses, § 5.10, at 520 (3d ed. 1997).

17. See, e.g., Monell v. Department of Soc. Servs., 436 U.S. 658, 690–91 (1978).

18. See Lebron, 115 S. Ct. at 974 (holding that the National Passenger Corporation,

known as “Amtrak,” is a governmental entity created by Congress).

19. See Monroe v. Pape, 365 U.S. 167 (1961), rev’d on other grounds, Monell v. Department of Soc. Servs., 436 U.S. 658 (1978).

20. West, 487 U.S. at 49–50.

21. Monroe, 365 U.S. at 176, rev’d on other grounds, Monell v. Department of Soc.

Servs., 436 U.S. 658 (1978).

22. West, 487 U.S. at 49–50.

23. Polk County v. Dodson, 451 U.S. 312, 325 (1981).

24. Id.
CHAPTER 2: ACTION “UNDER COLOR OF LAW”

7

during the course of a criminal prosecution.25 In this situation, there is a

link between the “private” public defender and other state officials. Public defenders may also act under color of law when they perform administrative functions, such as hiring or firing employees, because such actions would be taken on behalf of the state, not in opposition to it.26

A more difficult under-color-of-law question arises when police officers, who act under color of law while on duty, are technically “off-duty.”

The key issues focus on the assertion of power and the actual power given

them under state law. In determining whether the actions were under

color of law, courts have considered the following ties to the state:

whether the officers used the guns given to them by the state; whether the

officers asserted authority given to them by their office; or whether their

actions were ones that typically fall within the duties of police officers. 27

The more the facts link the actions of the officers with the power given to

them by the state, the more likely that courts will find that they acted under color of law.

Governmental officials generally act under color of law because the

state has given them the power to act; the link to the state is obvious.

When individuals do not work for the government, the under-color-oflaw inquiry still focuses on the connection between the challenged action

and the government. The question becomes whether there is a sufficient

link between the private individual and the state. The Supreme Court has

articulated four related standards to determine whether there is a sufficient connection between the individual and the government such that

the action by the individual nevertheless constitutes action by the government: joint actions, intertwined relationships, state encouragement,

and public function.

Joint Actions

When the challenged action is committed by a person who does not work

for the government, the under-color-of-law inquiry focuses on the nature

of the connections between the private person and the state. Two common situations easily suggest actions under color of law. First, a private

25. Tower v. Glover, 467 U.S. 914, 919–20 (1984).

26. Polk County, 451 U.S. at 325.

27. Martin A. Schwartz & John E. Kirklin, 1A Section 1983 Litigation: Claims & Defenses, § 5.14, at 538–43 (3d ed. 1997) (collecting cases).
SECTION 1983 LITIGATION

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person who conspires with a state actor is a state actor for the purpose of

the alleged conspiracy.28 Second, a private person who acts as an agent of

the state acts under color of law.29 In the latter situation, action under

color of law is present, even though the person is not a full-time employee of the state, because for purposes of the challenged action the person functions as if he or she were a full-time employee.

Intertwined Relationships

The Supreme Court has decided many cases involving the issue of when a

private person is sufficiently intertwined with the state to have acted under color of law. Most of these cases require close scrutiny of the facts;

under-color-of-law analysis is difficult to categorize because the Supreme

Court has articulated the following “standard”: “Only by sifting the facts

and weighing the circumstances can the non-obvious involvement of the

State in private conduct be attributed its true significance.”30 In each

case, the Court’s holding is necessarily limited because the under-colorof-law issue is a fact-specific inquiry. These decisions reveal the Court’s

movement toward limiting the circumstances under which a private person has become a state actor.

When evaluating the nexus between the private person and the state,

the Court found the threshold for state action present when there was a

symbiotic relationship. In Burton v. Wilmington Parking Authority,

31 the

Supreme Court held that a private restaurant in a public building was a

state actor when it refused to allow service to African-Americans. The

Court detailed the symbiotic relationship between the restaurant and the

state parking garage. The private restaurant was an integral part of the

public building, not only in serving the public, but also in financing the

public parking.

Since Burton, the Court has found numerous relationships to be insufficient to establish governmental action: these cases suggest that the

link between the private person and the government must be obvious.

The National Collegiate Athletic Association was not a state actor when it

28. Dennis v. Sparks, 449 U.S. 24, 28 (1980) (holding that private parties who corruptly conspired with a state judge acted “under color of law”).

29. Adickes v. Kress & Co., 398 U.S. 144, 152 (1970) (stating that action is “under

color” if person is a “wilful participant in joint activity with the State or its agents”).

30. Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).

31. 365 U.S. 715, 724 (1961).
CHAPTER 2: ACTION “UNDER COLOR OF LAW”

9

persuaded the University of Nevada at Las Vegas to suspend its basketball

coach;32 the United States Olympic Committee was not a governmental

actor when it refused to allow a nonprofit organization to use the word

“olympic”;33 a private school for troubled students that received more

than 90% of its funds from the government was not a governmental actor;34 a private hospital that discharged patients early, according to its

interpretation of Medicaid regulations, was not a governmental actor;35 a

utility that had a monopoly on electrical services was not a state entity;36

and a private, racially discriminatory club that received a state liquor license was not a state actor.37

In the commercial litigation context, however, the Supreme Court has

required fewer ties to the state when determining whether a private person acted under color of law. Although mere use of a state statute, alone,

does not make the user a state actor,38 when combined with the presence

of state officials, it can signify state action.39 In Lugar v. Edmondson Oil

Co.,40 the Supreme Court held that a creditor who used a state prejudgment statute had acted under color of law because, in attaching the

debtor’s property, with help from the court clerk and sheriff, the creditor

had further used state power. The assistance from state officials made the

creditor a joint participant in state action.41

Determining whether a private person acted jointly or was intertwined

with a state actor thus requires analysis of all the links between the private person and the state. Except for the prejudgment attachment process, the Court has required obvious ties to the state. These ties must in

32. NCAA v. Tarkanian, 488 U.S. 179, 199 (1988) (the NCAA and the UNLV functioned more as adversaries rather than joint participants).

33. San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522, 547

(1987).

34. Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982).

35. Blum v. Yaretsky, 457 U.S. 991, 1005 (1982).

36. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974).

37. Moose Lodge v. Irvis, 407 U.S. 163, 177–79 (1972).

38. Flagg Bros. v. Brooks, 436 U.S. 149, 164–66 (1978).

39. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939–42 (1982).

40. 457 U.S. 922 (1982).

41. Id. at 937. The Court 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. In a

footnote, the Supreme Court stated that its analysis was limited to prejudgment seizures

of property. Id. at 939 n.21.
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10

some way indicate that the state has done more than fund the private

person’s activities; they must suggest that the state has a significant measure of control over the private person’s conduct.

State Encouragement

The Supreme Court has determined that state action is present when

judges are asked to enforce or authorize a discriminatory practice.42 Although application of the state encouragement doctrine does not generally arise in § 1983 lawsuits, the doctrine follows the contours of its stateaction inquiry. This doctrine has been used, for example, to bar a court

from enforcing a racially restrictive covenant43 and allowing peremptory

challenges to be used in a discriminatory manner.44 In both these areas,

the Court recognized that private discrimination would not be possible

without judicial power. Because the use of judicial power in these contexts would sanction private discrimination, the Fourteenth Amendment

prohibits judges from using their power in this manner.

Public Function

State action may be present if the private person is performing a function

that is “the exclusive prerogative of the State.”45 In the landmark case,

Marsh v. Alabama,

46 the Supreme Court held that a company that owned

a town was a state actor when it barred the distribution of religious literature.47 In later cases, however, the Supreme Court significantly narrowed Marsh, holding that the following activities are not public functions: operating a shopping mall,48 providing utility services,49 educating

42. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 627–28 (1991); Shelley

v. Kraemer, 334 U.S. 1, 22–23 (1948).

43. Shelley, 334 U.S. at 22–23.

44. Edmonson, 500 U.S. at 627–28.

45. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 353 (1974).

46. 326 U.S. 501, 508–09 (1946).

47. Id. at 508–09.

48. Hudgens v. NLRB, 424 U.S. 507, 520–21 (1976).

49. Jackson, 419 U.S. at 358–59.
CHAPTER 2: ACTION “UNDER COLOR OF LAW”

11

troubled children,50 and supporting nursing-home care.51 Most federal

courts have narrowly interpreted the public function standard.52

Thus, the question whether state action is present requires detailed

analysis of the facts of each case. The state-action inquiry not only explores the links between the private person and the state, but also assesses

the significance of each tie and the cumulative effect of the ties. This inquiry is not easily answered by studying Supreme Court decisions, and it

ultimately invites judges to determine “where the governmental sphere

ends and the private sphere begins.”53

50. Rendell-Baker v. Kohn, 457 U.S. 830, 840–43 (1982).

51. Blum v. Yaretsky, 457 U.S. 991 (1982).

52. Martin A. Schwartz & John E. Kirklin, 1A Section 1983 Litigation: Claims & Defenses, § 5.14, at 538–43 (3d ed. 1997) (courts have held that the following are not public

functions: providing health care, housing, legal services, and mass transportation).

53. Edmonson, 500 U.S. at 620.

13

Chapter 3

Deprivation of Selected

Constitutional Rights

The due process clause of the Fourteenth Amendment encompasses three

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

for the deprivation of certain specific rights denoted in the Bill of Rights

and made applicable to the states through incorporation; (2) claims under the substantive component of the due process clause “that bars certain arbitrary, wrongful government actions, ‘regardless of the fairness of

the procedures used to implement them’”; and (3) claims under the procedural component of the due process clause that prohibits the deprivation of life, liberty, or property without fair procedure.54

When a plaintiff asserts the violation of a right specifically identified in

the Bill of Rights or 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.55 In addition to these Fourteenth Amendment

rights, a violation of the dormant commerce clause is actionable under

§ 1983.56 The following sections discuss some of the constitutional claims

frequently litigated under § 1983.

Procedural Due Process Claims

A claim based on a denial of procedural due process challenges the constitutional adequacy of state law procedural protections accompanying

54. Zinermon v. Burch, 494 U.S. 113, 124 (1990) (quoting Daniels v. Williams, 474

U.S. 327, 331 (1986)).

55. Id. at 125.

56. Dennis v. Higgins, 498 U.S. 439, 450–51 (1991).
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14

an alleged deprivation of a constitutionally protected interest in life, liberty, or property. It is not the deprivation itself that is actionable, but

only the deprivation without the requisite process.

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 constitutionally protected as a matter of substantive

law.57 While liberty interests may be derived directly from the due process clause of the Constitution58 or be created by state law,59 property interests “are created from an independent source such as state law. . . .”60

In Sandin v. Conner,

61 the Supreme Court held, in the context of a

procedural due process claim raised by an inmate placed in disciplinary

segregation for thirty days, that, despite the mandatory language of the

applicable prison regulation, a constitutionally protected liberty interest

will generally be “limited to freedom from restraint which . . . imposes

atypical and significant hardships on the inmate in relation to the ordinary incidents of prison life.”62 Under Sandin, mandatory language of a

state prison regulation is still a necessary, but no longer a sufficient, prerequisite for finding a liberty interest. Courts must look to the substance

of the deprivation and assess the hardship imposed on the inmate relative

to the ordinary incidents of prison life.63

57. 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”).

58. See, e.g., Washington v. Harper, 494 U.S. 210, 221–22 (1990) (due process clause

confers on prisoners a 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 a liberty interest in not being involuntarily committed to a state

mental hospital).

59. Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (state law created a liberty interest

in a “shortened prison sentence” that resulted from good time credits).

60. Cleveland Bd. of Educ., 470 U.S. at 538 (citing Board of Regents v. Roth, 408 U.S.

564, 577 (1972)).

61. 115 S. Ct. 2293 (1995).

62. Id. at 2300.

63. See, e.g., Griffin v. Vaughn, 112 F.3d 703, 707 (3d Cir. 1997) (finding “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
CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL RIGHTS

15

Sandin did not disturb Wolff v. McDonnell,

64 which held that a state

may create a liberty interest on the part of inmates in the accumulation of

good conduct time credits.65 Thus, if disciplinary action would inevitably

affect the duration of the inmate’s confinement, a liberty interest would

still be recognized under Wolff.

66 Likewise, claims having their source in

other than procedural due process, such as First Amendment retaliatory

transfer or retaliatory discipline cases, are not affected by Sandin.

67

Once a protected interest has been identified, a court must examine

the process that accompanies the deprivation of that protected interest

and decide whether the procedural safeguards built into the process are

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.” (citing cases)); Dominique v. Weld, 73 F.3d 1156, 1159 (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); 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, 116 S. Ct. 736 (1996); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995) (observing that “[t]he holding in 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”).

64. 418 U.S. 539 (1974).

65. Id. Before being deprived of good-time credits an inmate must be afforded: (1) 24-

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 upon and the reasons for the disciplinary action. Id. at 563–71.

66. See, e.g., Whitford v. Boglino, 63 F.3d 527, 532 (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).

67. 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). In Young v. Harper, 117 S. Ct. 1148, 1150 (1997), a unanimous 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.”
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constitutionally adequate.68 The issue of what procedural safeguards

must accompany a state’s deprivation of a constitutionally protected interest is a matter of federal law.69

In Mathews v. Eldridge,

70 the Court set forth three competing factors

to be weighed in determining the sufficiency of procedural safeguards

accompanying deprivations caused by the state:

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 burdens that the additional or substitute procedural requirement would

entail.71

Generally, due process requires some notice and an opportunity to be

heard prior to the deprivation of a protected interest.72 In certain cases,

however, a post-deprivation remedy is adequate. For example, a state

does 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. The arrest and the filing of the charges by a third party, and

the employer’s need to dismiss employees in a position of “great public

trust,” strongly weigh against granting a predeprivation hearing.73

Another type of due process claim arises when a plaintiff has been deprived of life, liberty, or property by state officials acting pursuant to established state procedure that failed to provide for predeprivation process

in a situation where such process was possible, practicable, and constitu68. Zinermon v. Burch, 494 U.S. 113, 126 (1990).

69. Vitek v. Jones, 445 U.S. 480, 491 (1980).

70. 424 U.S. 319 (1976).

71. Id. at 335. See, e.g., Washington v. Harper, 494 U.S. 210 (1990), where a mentally ill

state prisoner challenged the prison’s administration of antipsychotic drugs to him

against his will without a judicial hearing to determine the appropriateness of such treatment. The prison policy required the treatment decision to be made by a hearing committee consisting of a psychiatrist, psychologist, and the prison facility’s associate superintendent. The Court applied the Mathews balancing test and found the established procedure constitutionally sufficient. Id. at 229–33.

72. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).

73. Gilbert v. Homar, 117 S. Ct. 1807, 1813 (1997).
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17

tionally required.74 The erroneous deprivation must have been foreseeable; the predeprivation process practicable; and the challenged conduct

“authorized.”75

In contrast, under the Parratt/Hudson doctrine,76 there is no procedural due process claim where the deprivation was unforeseeable, random, unauthorized, and where the state provided an adequate postdeprivation remedy.77 This doctrine represents a “special case of the general Mathews v. Eldridge analysis, in which postdeprivation tort remedies

are all the process that is due, simply because they are the only remedies

that the state could be expected to provide.”78 In short, the value of a

predeprivation procedural safeguard for unforeseeable conduct is “negligible” in preventing the deprivation.79

In addition to these two types of procedural due process claims is the

Court’s fact-specific analysis in Zinermon v. Burch.80 In Zinermon 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 was sufficient to state a procedural

due process claim, the Court stated: “Burch’s suit is neither an action

74. Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982).

75. Zinermon v. Burch, 494 U.S. 113, 136 (1990).

76. 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 the case had held that a deprivation within the

meaning of the Fourteenth Amendment due process clause could be effected by mere

negligent conduct. Id. at 330–31.

77. 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, 116 S.

Ct. 1044 (1966), with Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (finding that

defendants’ conduct—delaying forfeiture proceeding for nearly three years—was authorized under state law where defendants had discretion to institute proceedings whenever

they wanted).

78. Zinermon v. Burch, 494 U.S. 113, 128 (1990).

79. Id. at 129.

80. 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).
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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.”81

Substantive Due Process Claims

The protections afforded by the substantive component of the due process clause have generally been limited to “matters relating to marriage,

family, procreation, and the right to bodily integrity.”82 Noting that “the

guideposts for responsible decisionmaking in this unchartered area are

scarce and open-ended[,]”83 the Supreme Court has in recent years expressed a reluctance to expand the scope of substantive due process protection.84 Whenever “an explicit textual source of constitutional protection” addresses particular behavior, courts must rely on the more explicit

source of protection to analyze the claim, rather than the amorphous and

open-ended concept of substantive due process.85 For example, substantive due process protects individuals who have been subjected to excessive force in a nonseizure, nonprisoner context because neither the

Fourth nor Eighth Amendment applies.86

81. Zinermon, 494 U.S. at 136.

82. Albright v. Oliver, 510 U.S. 266, 272 (1994) (plurality opinion).

83. Id.

84. See Washington v. Glucksberg, 117 S. Ct. 2258, 2267 (1997); Albright v. Oliver,

510 U.S. 266, 271(1994); Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). But

see BMW of N. Am., Inc. v. Gore, 116 S. Ct. 1589 (1996) (holding due process clause prohibits state from imposing “grossly excessive” punishment on tortfeasor).

85. Albright, 510 U.S. at 273 (citing Graham v. Connor, 490 U.S. 386, 395 (1989));

accord County of Sacramento v. Lewis, 523 U.S. —, 118 S. Ct. 1708, 1715 (1998).

86. See County of Sacramento v. Lewis, 523 U.S. —, 118 S. Ct. 1708, 1715 (1998)

(stating that “[s]ubstantive due process analysis is therefore inappropriate . . . only if [the]

claim is ‘covered by’ the Fourth Amendment”) (discussed infra text accompanying notes

106–12, 153–57).

In United States v. Lanier, 117 S. Ct. 1219 (1997), the Supreme Court, in dicta, previously endorsed this view, noting that:

Graham v. Connor . . . does not hold that all constitutional claims relating to physically

abusive government conduct must arise under either the Fourth or Eighth Amendments; rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must

be analyzed under the standard appropriate to that specific provision, not under the ru-
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19

DeShaney and Affirmative Duty Cases

In DeShaney v. Winnebago County Department of Social Services,

87 a majority of the Supreme Court held that nothing in the due process clause

of the Fourteenth Amendment creates an affirmative duty on the part of

the state to “protect the life, liberty, and property of its citizens against

invasion by private actors.”88 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.”89

In contrast, DeShaney also recognized an affirmative “duty to protect”

when the state incarcerates or involuntarily institutionalizes a person.90

Plaintiffs who have successfully survived the DeShaney analysis, outside

the strict confines of incarceration or involuntary institutionalization,

have asserted substantive due process claims arising in one of two contexts: (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.

Functional Custody

Where the affirmative duty is grounded in the concept of “custody,” a

number of courts have taken the position that the plaintiff must have

been involuntarily in the state’s custody when harmed.91 In DeShaney, the

bric of substantive due process.

Id. at 1228 n.7.

87. 489 U.S. 189 (1989). Many readers are no doubt familiar with the tragic facts of

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, but failed to

protect him from his father’s last beating, which left the child permanently brain damaged. Id. at 192–93.

88. Id. at 195.

89. Id. at 197.

90. See, e.g., Youngberg v. Romeo, 457 U.S. 307 (1982) (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).

91. See, e.g., Walton v. Alexander, 44 F.3d 1297, 1304 (5th Cir. 1995) (en banc), where

the court notes:

Recurring throughout [the] cases that we have decided since DeShaney is the iteration of

the principle that if 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 nonstate actors. We thus conclude
SECTION 1983 LITIGATION

20

Court acknowledged that the situation where 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.”92 The lower federal courts that have ruled

on the issue since DeShaney have uniformly recognized a constitutional

right to protection from unnecessary harm on the part of foster children

involuntarily placed by the state in a foster care situation.93

The majority of courts have rejected arguments that public schoolchildren, by virtue of compulsory attendance laws, are in the “functional

custody” of the state during school hours.94 These courts have held that

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 DeShaney purposes

of triggering an affirmative duty to protect 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.”).

92. DeShaney, 489 U.S. at 201 n.9.

93. See, e.g., Camp v. Gregory, 67 F.3d 1286, 1297 (7th Cir. 1995) (noting that “when

a DCFS caseworker places a child in a home knowing that his caretaker cannot provide

reasonable supervision, and the failure to provide that degree of supervision and care

results in injury to the child outside of the home, it might be appropriate, depending

upon the facts culminating in the injury, for the caseworker to be held liable for a deprivation of liberty”); Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d 289, 293 (8th

Cir. 1993) (recognizing that “[c]ases from this and other circuits clearly demonstrate that

imprisonment is not the only custodial relationship in which the state must safeguard an

individual’s civil rights”). But see D.W. v. Rogers, 113 F.3d 1214, 1218 (11th Cir. 1997)

(holding “that 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, 737

(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 Keena’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”).

94. See, e.g., Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir. 1997)

(en banc) (joining “every circuit court that has considered the issue in holding that com-
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21

the state does not have a duty to protect students from harm inflicted by

fellow students or other private actors.95 Courts have likewise rejected the

notion that individuals in public housing96 or employees of a public entity97 are in the “functional custody” of the state and thus owed an afpulsory school attendance . . . does not create the custodial relationship envisioned by

DeShaney”); Doe v. Claiborne County, 103 F.3d 495, 510 (6th Cir. 1996) (holding that

school’s “in loco parentis status or a state’s compulsory attendance laws do not sufficiently ‘restrain’ students to raise a school’s common-law obligation to the rank of a constitutional duty”); Nabozny v. Podlesny, 92 F.3d 458–59 (7th Cir. 1996) (concluding that

“local school administrations have no affirmative constitutional duty to protect students

from the private actions of third parties while they attend school”); Walton v. Alexander,

44 F.3d 1297, 1305 (5th Cir. 1995) (en banc) (holding that, where attendance at school

was voluntary and there was a right to leave at will, child’s “status as a resident student

[did not place] him within the narrow class of persons . . . entitled to claim from the state

a constitutional duty of protection from harm at the hands of private parties”); Wright v.

Lovin, 32 F.3d 538, 540 (11th Cir. 1994) (stating that “To date, every federal circuit court

of appeal to address the question of whether compulsory school attendance laws create

the necessary custodial relationship between school and student to give rise to a constitutional duty to protect students from harm by nonstate actors has rejected the existence of

any such duty.” (citing cases)).

It is worth noting the following dicta in Justice Scalia’s opinion in Vernonia School

District 47J v. Acton, 515 U.S. 646, 655 (1995):

While we do not, of course, suggest that public schools as a general matter have such a

degree of control over children as to give rise to a constitutional “duty to protect,” see

DeShaney . . . [cite omitted], we have acknowledged that for many purposes “school

authorities ac[t] in loco parentis,” [cite omitted], with the power and indeed the duty to

“inculcate the habits and manners of civility,” [cite omitted].

95. Schoolchildren have a liberty interest in their bodily integrity that is protected by

the due process clause against deprivation by the state. 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) (Stoneking II) (opinion on remand)

(recognizing that the situation in that case was very different from DeShaney because the

injury—sexual molestation—resulted from the conduct of a state employee, not a private

actor), cert. denied, 493 U.S. 1044 (1990).

96. See, e.g., Dawson v. Milwaukee, 930 F.2d 1283, 1285 (7th Cir. 1991) (presence in

publicly subsidized housing is not functional equivalent of being “in custody”).

97. See, e.g., Wallace v. Adkins, 115 F.3d 427, 429 (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.

New Mexico Corrections Dep’t, 73 F.3d 274, 276 (10th Cir. 1996) (librarian assigned to

provide library services to inmates housed in maximum security unit of the New Mexico

State Penitentiary was not in state’s custody or held against her will; employment relationship was “completely voluntary”); Lewellen v. Metropolitan Gov’t of Nashville, 34 F.3d
SECTION 1983 LITIGATION

22

firmative duty of protection. In Collins v. City of Harker Heights,

98 the

Supreme Court unanimously affirmed the view 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. . . .”99

State-Created Danger

In concluding 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 had increased his vulnerability to these dangers.100 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,101 if the state creates the

danger confronting the individual, it may then have a corresponding

duty to protect.102 Moreover, the Supreme Court’s decision in Collins v.

345 (6th Cir. 1994) (workman accidentally injured on school construction project has no

substantive due process claim), cert. denied, 115 S. Ct. 963 (1995).

98. 503 U.S. 115 (1992).

99. Id. at 130.

100. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 201 (1989).

101. Id. 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. 1995) (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.”).

102. See, e.g., Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1177 (7th Cir.

1997) (“To recover under this [state-created danger] theory, the estate must demonstrate

that the state greatly increased the danger to Stevens while constricting access to self-help;

it must cut off all avenues of aid without providing a reasonable alternative. Only then

may a constitutional injury have occurred.”); Seamons v. Snow, 84 F.3d 1226 (10th Cir.

1996) (noting that “[i]n addition to the ‘special relationship’ doctrine, we have held that

state officials can be liable for the acts of third parties where those officials ‘created the

danger’ that caused the harm”); Pinder v. Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995) (en

banc) (observing that “[w]hen the state itself creates the dangerous situation that resulted

in a victim’s injury, the absence of a custodial relationship may not be dispositive”); Reed

v. Gardner, 986 F.2d 1122, 1126–27 (7th Cir. 1993) (holding that “plaintiffs . . . may state

claims for civil rights violations if they allege state action that creates, or substantially

contributes to the creation of, a danger or renders citizens more vulnerable to a danger

than they otherwise would have been. . .”); Dwares v. City of New York, 985 F.2d 94, 99
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23

City of Harker Heights,

103 holding that there is no substantive due process

right to a safe work environment,104 has not precluded the imposition of

constitutional liability on state officials who deliberately or intentionally

place public employees in a dangerous situation without adequate protection.105

(2d Cir. 1993) (finding DeShaney not controlling where plaintiff alleged that defendantofficers had made demonstrators more vulnerable to assaults); Freeman v. Ferguson, 911

F.2d 52, 55 (8th Cir. 1990) (noting “[DeShaney] analysis establishes the possibility that a

constitutional duty to protect an individual against private violence may exist in a noncustodial setting if the state has taken affirmative action which increases the individual’s

danger of or vulnerability to, such violence beyond the level it would have been at absent

state action”); Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (concluding an affirmative duty to protect was owed plaintiff by a police officer who arrested the driver of

the car in which plaintiff was a passenger, impounded the vehicle, and left plaintiff

stranded in a high-crime area at 2:30 a.m., resulting in rape of plaintiff), cert. denied, 498

U.S. 938 (1990). Compare Kneipp v. Tedder, 95 F.3d 1199, 1201, 1209 n.22 (3d Cir. 1996)

(adopting the ‘state-created danger’ theory as a “viable mechanism for establishing a constitutional violation under 42 U.S.C. § 1983,” where severely inebriated woman was

stopped by police and then allowed to proceed home alone. “[T]he relationship requirement . . . contemplates some contact such that the plaintiff was a foreseeable victim of a

defendant’s acts in a tort sense”), with Bogle v. City of Warner Robins, 953 F. Supp. 1563,

1570 (M.D. Ga. 1997) (holding that “plaintiff was not deprived of her constitutional

rights under the Fourteenth Amendment when police officers released her from custody

in an impaired state” and plaintiff was subsequently raped by a third party).

103. 503 U.S. 115 (1992).

104. Id. at 130.

105. See, e.g., L.W. v. Grubbs (L.W. I), 974 F.2d 119, 120–21 (9th Cir. 1992) (concluding that plaintiff, a registered nurse, stated a constitutional claim against defendant

correctional officers, where defendants knew inmate was a violent sex offender, likely to

assault plaintiff if alone with her, yet defendants intentionally assigned inmate to work

alone with plaintiff in clinic), cert. denied, 113 S. Ct. 2442 (1993); Cornelius v. Town of

Highland Lake, 880 F.2d 348, 359 (11th Cir. 1989) (holding that where the defendants

had put the plaintiff, a town clerk, in a “unique position of danger” by causing inmates

who were inadequately supervised to be present in the 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”), cert. denied, 494 U.S. 1066

(1990). But see Mitchell v. Duval County Sch. Bd., 107 F.3d 837, 839 n.3 (11th Cir. 1997)

(per curiam) (noting that “Cornelius may not have survived Collins v. City of Harker

Heights, 503 U.S. 115 . . . (1992), 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, the plaintiff did not make out a state-created danger claim where “the

school neither placed Mitchell in a dangerous location nor placed the assailants in the
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State of Mind

The substantive due process component of the Fourteenth Amendment

protects against “arbitrary action.”106 For an action to be arbitrary it must

“shock the conscience”;107 negligent action is clearly insufficient to establish a violation of substantive due process.108 In County of Sacramento v.

Lewis,

109 the Court explained that determining shocking conduct depends on the type of substantive due process claim asserted. For example,

when prison officials are deliberately indifferent to a pretrial detainee’s

serious medical needs, their actions “shock the conscience”;110 but when

police officers engage in a high-speed pursuit that results in the death of

one of the suspected offenders, their actions are shocking only if they

acted with malice, that is, with “intent to harm the suspects physically or

to worsen their legal plight.”111 Thus, a police officer’s deliberate indifference to the risks arising from a high-speed pursuit is insufficient to establish individual liability.

Two factors aid courts in considering whether conduct is shocking:

whether there was time for reflection and whether there were competing

governmental needs:

[L]iability for deliberate indifference to inmate [medical] welfare rests

upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely unplace where Mitchell was.” Id. at 840.).

106. County of Sacramento v. Lewis, 523 U.S. —, 118 S. Ct. 1708, 1716 (1998); see also

Collins v. City of Harker Heights, 503 U.S. 115, 130 (1992) (holding that city’s alleged

failure to train or warn sanitation department employees was not arbitrary).

107. County of Sacramento, 118 S. Ct. at 1717. Justice Souter authored an opinion

joined by five Justices: Chief Justice Rehnquist and Justices O’Connor, Kennedy, Ginsburg, and Breyer. He stated that when a plaintiff challenges a “specific act of a governmental officer,” rather than legislation, id. at 1716, the plaintiff must show that the act

“shocks the conscience” to establish a substantive due process violation. Id. at 1717. Justices Kennedy and O’Connor, however, in a concurring opinion, stated that “the reasons

the Court gives in support of its judgment go far toward establishing that objective considerations, including history and precedent, are the controlling principle, regardless of

whether the State’s action is legislative or executive in character.” Id. at 1722 (Kennedy, J.,

concurring).

108. Davidson v. Cannon, 474 U.S. 344, 347 (1986); Daniels v. Williams, 474 U.S. 327,

333 (1986).

109. 523 U.S. —, 118 S. Ct. 1708 (1998).

110. Id. at 1718 (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

111. Id. at 1720.
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25

complicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure

even to care, indifference is truly shocking. But when unforeseen circumstances demand an officer’s instant judgment, even precipitate

recklessness fails to inch close enough to harmful purpose to spark the

shock that implicates [the substantive component of the Fourteenth

Amendment].112

In the context of a high-speed pursuit, officers must act quickly to weigh

the competing concerns of effective law enforcement against the risks of a

pursuit. Liability attaches only when officers act maliciously.

Many courts apply a “professional judgment” standard to substantive

due process claims raised by involuntarily placed foster children.113 The

Supreme Court articulated this standard in Youngberg v. Romeo,

114

holding that state officials who commit someone involuntarily (a mentally handicapped patient) are liable only if their decision was “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 judgment.”115

Use of Force by Governmental Officials

Governmental officials may be subject to § 1983 lawsuits when they use

force to control suspects, pretrial detainees, and prisoners. The source of

the right for claims against these officials depends on the plaintiff’s status

at the time officials used force: the Fourth Amendment116 applies to

“seized” individuals and prohibits the use of unreasonable force;117 and

the Eighth Amendment118 applies to prisoners and prohibits cruel and

112. Id.

113. See, e.g., Yvonne L. v. New Mexico 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).

114. 457 U.S. 307 (1982).

115. Id. at 323.

116. U.S. Const. amend. VIII (stating “cruel and unusual punishments [shall not be]

inflicted”).

117. Graham v. Connor, 490 U.S. 386, 394–95 (1989); accord County of Sacramento

v. Lewis, 523 U.S. —, 118 S. Ct. 1708, 1715 (1998).

118. U.S. Const. amend. IV (stating “[the] right of the people to be secure in their

persons . . . against unreasonable . . . seizures . . . .”).
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unusual punishment.119 Because the Fourth and Eighth Amendment

rights have been incorporated by the due process clause of the Fourteenth Amendment, state officials are subject to § 1983 lawsuits under

these amendments. The Supreme Court has described the standard for

measuring force under the Fourth and Eighth Amendments.120

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.”121 A substantive due

process claim challenging the use of force may lie only if neither the

Fourth122 nor the Eighth Amendment applies. For example, if the use of

force constituted a “seizure” within the meaning of the Fourth Amendment, the claim arises only under the Fourth Amendment as incorporated by the due process clause.123 In contrast, if officers engage in a highspeed pursuit and do not “seize” an injured person, 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.124

Although the “Due Process Clause protects a pretrial detainee from

use of force that amounts to punishment,”125 it is unclear if a plaintiff can

be both a pretrial detainee and a suspect “seized” within the meaning of

the Fourth Amendment. The Supreme Court has stated, “Our decisions

have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against deliberate use of excessive force beyond the point at which arrest ends and pretrial detention

begins.”126 As a result, some lower courts question whether the Fourth

Amendment applies to force claims asserted by pretrial detainees.127

119. Hudson v. McMillian, 112 S. Ct. 995, 999 (1992); Whitley v. Albers, 475 U.S. 312,

321 (1986).

120. See infra text accompanying notes 130 & 152–57.

121. U.S. Const. amend. XIV, § 1 (stating “[n]o state shall . . . deprive any person of

life, liberty . . . without due process of law . . . .”).

122. County of Sacramento, 118 S. Ct. at 1715. See also United States v. Lanier, 117 S.

Ct. 1219, 1228 n.7 (1997); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion);

Graham v. Connor, 490 U.S. 386, 395 (1989).

123. Graham, 490 U.S. at 395.

124. County of Sacramento, 118 S. Ct. at 1715.

125. Graham, 490 U.S. at 395 n.10.

126. Id.

127. See, e.g., Riley v. Dorton, 115 F.3d 1159, 1163-64 (4th Cir. 1997) (detailing the
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Unreasonable Force Claims Under the Fourth

Amendment

Whether police officers have violated the Fourth Amendment during an

investigation or arrest depends upon the resolution of two issues: (1) In

using force, did officials “seize” the suspect within the meaning of the

Fourth Amendment?128 and (2) Was the force objectively unreasonable?129 If officers both seized the plaintiff and used objectively unreasonable force, then the plaintiff has stated a claim under the Fourth

Amendment. If no seizure occurred, then the use of force is not actionable under the Fourth Amendment; the force, however, might be actionable under the Fourteenth Amendment.130 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 three definitions 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.”131

2. Whether a “reasonable person would have believed that he was not

free to leave” and the person in fact submitted to the assertion of

authority.132

3. Whether there was “a governmental termination of freedom of

movement through means intentionally applied.”133

conflict in the circuits: “The Second, Sixth, and Ninth Circuits do extend Fourth

Amendment coverage to the period the suspect remains with the arresting officers . . . . In

sum, we agree with the Fifth, Seventh, and Eleventh Circuits that the Fourth Amendment

does not embrace a theory of ‘continuing seizure’ and does not extend to the alleged mistreatment of arrestees or pretrial detainees in custody”); see generally Albright v. Oliver,

510 U.S. 266, 279 (1994) (Ginsburg, J., concurring) (stating that a person had been

“seized” within meaning of Fourth Amendment by his arrest and conditional release after

posting bail).

128. Graham, 490 U.S. at 395–96.

129. Id.

130. See generally County of Sacramento v. Lewis, 523 U.S. —, 118 S. Ct. 1708, 1715

(1998) (stating that if a police officer’s use of force during a high-speed pursuit did not

result in a seizure, substantive due process analysis is appropriate).

131. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968).

132. California v. Hodari D., 499 U.S. 621, 628 (1991); see also United States v.

Mendenhall, 446 U.S. 544, 554 (1980) (opinion for Justices Stewart and Rehnquist); I.N.S.

v. Delgado, 466 U.S. 210, 215 (1984).
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These definitions focus on the assertion of 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, articulated twenty-one years later, 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.134

Determining whether officers used unreasonable force when they

seized a suspect is a fact-specific inquiry using the Fourth Amendment

standard of reasonableness. Two Supreme Court decisions assessed the

reasonableness of different types of force.

In Tennessee v. Garner,

135 the Court held that the use of deadly force

was objectively unreasonable.136 A police officer, who had reason to believe that a suspect had just burglarized a home, commanded the fleeing

suspect to stop. When the suspect did not stop, the police officer shot

and killed him. Under these circumstances, the shooting was not justified

under the standard articulated by the Court: “[I]f 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 es133. Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (use of roadblock to stop

fleeing motorist constituted seizure; whether the act was intentional is an objective inquiry—the question is whether a reasonable officer would have believed that the means

used would have caused the suspect to stop).

134. County of Sacramento, 118 S. Ct. at 1715 (stating that 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. Also actionable are claims involving psychological injury. See, e.g.,

McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992) (holding that a nine-year-old child

stated an unreasonable force claim under the Fourth Amendment by alleging that an officer held a gun to his head while executing a search warrant, even though he posed no

threat to the officer and did not attempt to flee); see generally Hudson v. McMillian, 112 S.

Ct. 995, 1004 (1992) (Blackmun, J., concurring) (psychological harm can constitute

“cruel and unusual punishment under the Eighth Amendment”) (citing Wisniewski v.

Kennard, 901 F.2d 1276, 1277 (5th Cir.) (placing gun in prisoner’s mouth and threatening to shoot stated a claim under the Eighth Amendment), cert. denied, 111 S. Ct. 309

(1990)).

135. 471 U.S. 1 (1985).

136. Id. at 11–12.
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cape, and if, where feasible, some warning has been given.”137 In short,

the suspect posed no danger to the officer or the community (burglary

does not involve the infliction of “serious physical harm”).138

Assessing danger is also important in evaluating the use of nondeadly

force. In Graham v. Connor,

139 the Supreme Court held that three factors

were relevant in determining the reasonableness of force: (1) “the severity

of the crime at issue”; (2) “whether the suspect poses an immediate threat

to the safety of the officers or others”; and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.”140 In articulating

these factors, the Court did not state that these were the only factors relevant to the reasonableness inquiry. Reasonableness requires a balancing

of interests, evaluating the circumstances present at the time the officers

act, and allowing the officers some deference because they often have to

make “split-second judgments.”141 This reasonableness inquiry is an objective one. Plaintiffs do not have to prove that officers acted in bad

faith;142 such evidence, however, would be admissible to challenge the

officers’ credibility.143

Malicious Force Claims Under the Eighth Amendment

Although malice is not an element of a Fourth Amendment claim, it is

the central inquiry under the Eighth Amendment for a claim alleging the

use of excessive force. 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.”144 In two decisions, the Supreme Court held that this standard applies to the use of force to control

prisoners, whether to diffuse a riot145 or to impose discipline.146

137. Id.

138. Id. at 11.

139. 490 U.S. 386 (1989).

140. Id. at 396.

141. Id. at 397.

142. Id.

143. Id. at 399 n.12.

144. Hudson v. McMillian, 112 S. Ct. 995, 999 (1992); Whitley v. Albers, 475 U.S. 312,

321 (1986).

145. Whitley, 475 U.S. at 321.

146. Hudson, 112 S. Ct. at 999.
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In Whitley v. Albers,

147 the Supreme Court held that five factors were

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.”148 In articulating the standard, the Court also expressed a need to defer to the judgment of prison officials.

The Court later applied this standard in Hudson v. McMillian,

149

where officials did not face the exigencies of a prison riot. The Court interpreted the third factor as not requiring a “significant” injury.150 However, plaintiffs need to allege something more than a de minimus injury

unless the force used was “repugnant to the conscience of mankind.” 151

The extent of an injury thus became just one factor in determining

whether officials acted with malice.

Thus, the Supreme Court has clearly articulated factors for determining malice under the Eighth Amendment and unreasonable force under

the Fourth Amendment. It has not done so, however, for Fourteenth

Amendment force claims.

Excessive Force Claims Under the Fourteenth

Amendment

Although the Supreme Court has not elaborated on the standard for useof-force claims under the Fourteenth Amendment, it has stated that “the

Due Process Clause protects a pretrial detainee from the use of excessive

force that amounts to punishment.”152

More recently, the Court held in County of Sacramento v. Lewis153 that

to violate the substantive due process component of the Fourteenth

Amendment, an official’s actions must “shock the conscience.”154 Officials commit shocking actions when they use force with the intent to

147. 475 U.S. 312 (1986).

148. Id. at 321.

149. 112 S. Ct. 995, 999 (1992).

150. Id. at 1000.

151. Id. (quoting Whitley, 475 U.S. at 327 (quoting Estelle v. Gamble, 429 U.S. 97, 104

(1976))).

152. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).

153. 523 U.S. —, 118 S. Ct. 1708 (1998).

154. Id. at 1717 (citing Rochin v. California, 342 U.S. 165, 172–73 (1952)).
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31

harm a person.155 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:156 both must act quickly with little time for reflection.

Although the Court did not state that the malice standard applies to

force claims raised by pretrial detainees, at least one lower court prior to

County of Sacramento had determined that malice was the appropriate

standard.157

Malicious Prosecution Claims Under the

Fourth Amendment

Determining whether plaintiffs have alleged a malicious prosecution

claim under the Fourth Amendment is difficult because the standard for

evaluating these claims is unclear after the Supreme Court’s decisions in

Heck v. Humphrey158 and Albright v. Oliver.

159 In these decisions, the

Court merely declared what is not a malicious prosecution claim.

Prior to these decisions, many lower courts used the common-law

elements of a malicious prosecution tort to establish a constitutional

violation of substantive due process.160 The common-law elements included (1) institution of a criminal proceeding; (2) without probable

cause; (3) with malice; and (4) termination in favor of the criminal defendant.161 In Albright, the Court held that substantive due process was

not the basis for a constitutional claim of malicious prosecution. Such a

claim may arise under the Fourth Amendment. In Heck, the Court held

155. Id. at 1711.

156. Id. at 1720.

157. See, e.g., Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.), cert. denied, 113 S. Ct.

2998 (1993); but see generally Sandin v. Conner, 115 S. Ct. 2293, 2300 (1995) (distinguishing claims raised by prisoners from claims raised by detainees: “The punishment of

incarcerated prisoners . . . serves different aims than those found invalid [for pretrial detainees]. . . . It effectuates prison management and prisoner rehabilitative goals.”).

158. 114 S. Ct. 2364, 2372 (1994). For a thorough treatment of the relationship between habeas corpus relief and § 1983 relief, see Ira Robbins, Habeas Corpus Checklist

(West Group 1998).

159. 510 U.S. 266 (1994).

160. Id. at 270 n.4. Some courts had also required the challenged governmental conduct to be “egregious.” Id.

161. Martin A. Schwartz & John E. Kirklin, 1A Section 1983 Litigation: Claims & Defenses, § 3.20, at 315 n.699 (3d ed. 1997).
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that the prisoner did not have a cognizable malicious prosecution claim

under 42 U.S.C. § 1983 because he failed to establish that prior criminal

proceedings had been terminated in his favor.

Both cases merit scrutiny because Heck surprisingly looked to the

common law to determine whether there was an actionable claim and

because Albright produced six different views as to how to examine the

facts of an alleged malicious prosecution claim.

Prior to Heck, the Court had derived standards for examining constitutional claims under § 1983 from constitutional amendments, not from

common law.162 It had also held that prisoners could challenge their

confinement only under 29 U.S.C. § 2254, not 42 U.S.C. § 1983.163 I n

Heck, the Court limited potential § 1983 actions by holding that only

when a damage action does not undermine the state’s authority to confine prisoners may the malicious prosecution action lie under § 1983. 164

The Court used § 2254 as an analogy, noting that no intrusion on a

state’s authority occurs when “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by

a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus. . . .”165

Similarly, in Albright, the Court held that a claim of malicious prosecution is not actionable under the substantive due process component of

the Fourteenth Amendment, but suggested that it may be actionable under the Fourth Amendment.166 Albright, who was the subject of an arrest

warrant for selling drugs, surrendered custody and complied with a limit

on his traveling outside the state. At a preliminary hearing, a judge determined that the alleged selling of a powder that looked like cocaine was

not a state crime.

The Court held that Albright’s malicious prosecution claim was not

actionable under the substantive due process component of the Fourteenth Amendment. Interestingly, the discussion of substantive due proc162. See, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986).

163. Preiser v. Rodriguez, 411 U.S. 475, 488–90 (1973).

164. Heck, 114 S. Ct. at 2373.

165. Id. at 2372. See generally Edwards v. Balisok, 117 S. Ct. 1584, 1589 (1997) (holding that prisoner’s alleged procedural due process violation, for which he sought declaratory relief and money damages, is not cognizable under § 1983 because it “necessarily

[implies] the invalidity of the punishment imposed”).

166. 510 U.S. 266, 275 (1994) (plurality opinion).
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33

ess resulted in the justices expressing six very different views of the facts

and the law of substantive due process. The plurality opinion byChief

Justice William H. Rehnquist (joined by Justices O’Connor, Scalia, and

Ginsburg) rejected substantive due process as a base for this claim and

interpreted the record as not alleging a violation of procedural due process or of a Fourth Amendment right. Justice Rehnquist noted that the

lower courts had differing views as to what a plaintiff must allege to state

a constitutional claim for “malicious prosecution.”167 Some courts had

held that the constitutional claim was identical to the common-law

claim; others had required the plaintiff to establish some type of egregious conduct.168 Justice Rehnquist also stated that the Fourth Amendment applied to “pretrial deprivations of liberty,”169 but expressed no

view as to whether the plaintiff’s allegations stated a claim under the

Fourth Amendment.

Justice Antonin Scalia, concurring, also rejected substantive due process as a basis for this suit. He reiterated his strong opposition to the Court

using substantive due process when a plaintiff alleges “unspecified” liberty interests.170

Justice Ruth Bader Ginsburg, in her concurring opinion, interpreted

the Fourth Amendment to apply to the facts of this case. She found that

the restraint imposed upon Albright constituted a Fourth Amendment

seizure, and suggested that the basis of his claim may have been that the

arresting officer was responsible for “effectuating and maintaining” the

seizure.171

Justice Anthony M. Kennedy, joined by Justice Clarence Thomas,

concurred in the judgment, holding that a malicious prosecution claim is

one actually alleging a violation of procedural due process.172 In contrast

to Justice Scalia, however, Justice Kennedy affirmed that the due process

clause protects more than the liberty interests specified in the Bill of

Rights. He stated that “the due process requirements for criminal proceedings do not include a standard for the initiation of a criminal prose167. Id. at 270 n.4.

168. Id.

169. Id. at 274.

170. Id. at 275 (Scalia, J., concurring).

171. Id. at 279 n.5 (Ginsburg, J., concurring).

172. Id. at 285 (Kennedy, J., concurring).
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cution.”173 Justice Kennedy stated that, in some circumstances, the challenged governmental actions may state a violation of procedural due

process, but found that such a claim was not viable in this case because

state law provided the plaintiff with a remedy.

Justice David H. Souter rejected the substantive due process claim for

two reasons. First, such a claim is available only when another amendment does not apply and the claim is “substantial.”174 Justice Souter

thought that judicial “self-restraint” is necessary when examining this

type of claim. Second, the types of injuries alleged were compensable under the Fourth Amendment. The plaintiff had alleged the following damages:

. . . limitations of his liberty, freedom of association, and freedom of

movement by virtue of the terms of his bond; financial expense of his

legal defense; reputational harm among members of the community;

inability to transact business or obtain employment in his local area,

necessitating relocation to St. Louis; inability to secure credit; and personal pain and suffering.175

Justice 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 addressed by the facts

of this case.

In contrast to the other justices, Justice John Paul Stevens, joined by

Justice Harry A. Blackmun, concluded that the plaintiff had stated a violation of substantive due process.176 He found the officer’s conduct

shocking, and he stated that the Bill of Rights specifically protects against

pretrial deprivations of liberty. Using the grand jury clause of the Fifth

Amendment, Justice Stevens reasoned that the liberty interest is specified

by the Constitution. Even though states are not required to use grand

juries, the presence of this clause helped to define the word “liberty” for

Justice Stevens. He also noted that in criminal procedure cases the Court

“has identified numerous violations of due process that have no counterparts in the specific guarantees of the Bill of Rights.”177

173. Id. at 283.

174. Id. at 288 (Souter, J., concurring).

175. Id. at 289 (Souter, J., concurring).

176. Id. at 302 (Stevens, J., dissenting).

177. Id. at 304.
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Thus, although a majority of the Court held that malicious prosecution claims were not viable substantive due process claims, there was no

clear majority with respect to the constitutional basis for these claims. If,

however, Justice Souter’s opinion can be interpreted as establishing such

claims under the Fourth Amendment, then a majority of the Court

would likely find these claims actionable under the Fourth Amendment.

In response to Albright, some courts have held that abuse of criminal

process can raise a procedural due process claim178 or a Fourth Amendment claim requiring the plaintiff to prove “the perversion of proper legal procedures.”179

Conditions-of-Confinement Claims Under the

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 Supreme Court has defined

this standard as containing both subjective and objective components.180

The subjective component requires proof that officials acted with subjective deliberative indifference;181 the objective component requires proof

that the deprivation was sufficiently serious.182 Several Supreme Court

decisions shed light on the meaning of these two elements.

In Estelle v. Gamble,

183 a case involving medical care of prisoners, the

Supreme Court held that, to state a claim under the Eighth Amendment,

a prisoner must prove that officials were deliberately indifferent to the

178. See, e.g., Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994).

179. Singer v. Fulton County Sheriff, 63 F.3d 110, 117 (2d Cir. 1995). Professor Martin A. Schwartz has argued that the Second Circuit’s five factors for Fourth Amendment

malicious prosecution claims are more stringent than the common-law tort: “(1) A deprivation of liberty; (2) Resulting from a governmental seizure; (3) In the form of legal process; (4) Without probable cause or otherwise unreasonable; and (5) Termination of the

criminal proceeding in favor of the accused.” Martin A. Schwartz & John E. Kirklin, 1A

Section 1983 Litigation: Claims and Defenses, § 3.20, at 325 (3d ed. 1997) (citing Singer,

63 F.3d at 118). Schwartz and Kirklin add that this type of claim is not a challenge to the

decision to prosecute, but rather to the seizure arising “from legal process.” Id.

180. See, e.g., Farmer v. Brennan, 114 S. Ct. 1970, 1977 (1994); Wilson v. Seiter, 501

U.S. 294, 302–03 (1991).

181. Farmer, 114 S. Ct. at 1977.

182. Wilson, 501 U.S. at 302–03.

183. 429 U.S. 97, 106 (1976).
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prisoner’s “serious” medical needs.184 It determined that the Eighth

Amendment was not violated by negligent medical care.

Fifteen years later, in Wilson v. Seiter,

185 a divided Court interpreted

Estelle to govern all claims challenging prison conditions. A majority of

the Court narrowly defined both the subjective and objective components. The Court held that the subjective component is a necessary element of all prison conditions claims. Inhumane prison conditions alone

do not constitute an Eighth Amendment violation. The Court also held

that the objective component requires proof that the deprivation was “serious,” that is, one addressing a basic human need, such as “food,

warmth, or exercise.”186 “Nothing so amorphous as ‘overall conditions’

can rise to the level of cruel and unusual punishment when no specific

deprivation of a single human needs exists.”187 With these requirements,

the Court left open whether inadequate funding was a defense to a finding of subjective deliberate indifference.188 The dissent, however, noted

that the courts of appeals have rejected such a “cost” defense.189

Subsequently, the Supreme Court held in Helling v. McKinney190 that a

prisoner had stated an Eighth Amendment claim in challenging his confinement with a prisoner who smoked five packages of cigarettes a day.191

The Court held that this case was similar to Estelle because the challenge

concerned the prisoner’s health. The Court explained that the Eighth

Amendment is not limited only to claims involving current physical

harm: The Eighth Amendment also applies to conditions that may cause

harm to prisoners in the future.

In Farmer v. Brennan,

192 the Supreme Court defined the term “deliberate indifference.”193 Recognizing a 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. Subjective deliberate indifference requires proof that the official ac184. Id.

185. 501 U.S. 294, 302–04 (1991).

186. Id. at 304–05.

187. Id. at 305.

188. Id.

189. Id. at 311 n.2 (White, J., dissenting).

190. 113 S. Ct. 2475 (1993).

191. Id. at 2480–82.

192. 114 S. Ct. 1970 (1994).

193. Id. at 1984.
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tually knew of a substantial risk of serious harm and failed to act.194 Objective deliberate indifference, on the other hand, does not require proof

of the actor’s state of mind; it is established by showing that officials

knew or should have known of the harm.195 To explain its standard, the

Court offered two comments. First, subjective deliberate indifference

protects the prison official who failed to deduce the risk of serious harm

because the official, in fact, did not know of the harm.196 Second, the jury

can make an inference that the official actually knew of the risk,197 based

on the same type of circumstantial evidence that is used to prove objective deliberate indifference.

The subjective and objective components of the analysis of conditions-of-confinement claims under the Eighth Amendment are also a

part of the Court’s analysis of excessive force claims under the Eighth

Amendment. In Hudson v. McMillian,

198 the Court held that the subjective component required proof that the prison officials acted maliciously.

The Court added that proof of malicious conduct automatically establishes the objective component, as long as there was more than a de

minimus injury.199

The Court has thus recognized two different subjective components

under the Eighth Amendment—deliberate indifference and malice.200

Malice is the proper standard in the prison discipline or riot contexts because exigencies exist; however, in general prison conditions litigation,

where prison officials do not encounter these difficult circumstances, deliberate indifference is the proper standard.201 The Court derived these

different states of mind by balancing a prisoner’s interest in bodily integrity against the need for institutional order.

First Amendment Claims

Two frequently raised claims by government employees involve the First

Amendment, which safeguards the right to free speech. The first claim

194. Id.

195. Id. at 1978.

196. Id.

197. Id. at 1982 n.8

198. 112 S. Ct. 995, 999 (1992).

199. Id. at 1000. See also supra text accompanying note 151.

200. Id. at 998–99.

201. Id.
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addresses adverse employment decisions that were based on employees’

affiliations with political parties. The second claim questions decisions

based upon employees’ speech. To resolve these claims, the Supreme

Court has provided general guidelines for balancing the interests of the

parties.

Political Patronage Claims

In four decisions, the Supreme Court has limited the circumstances under which public employers may make political patronage the dispositive

reason for adverse employment decisions. A plurality of the Court first

held, in Elrod v. Burns,

202 that patronage dismissals must be limited to

“policy-making positions.” Four years later, in Branti v. Finkel,

203 the Supreme Court rejected 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.”204 The Court also stressed the need to evaluate actual performance in Rutan v. Republican Party of Illinois.

205 It held

that the First Amendment prohibits political patronage as the sole basis

for decisions concerning “promotions, transfers, and recalls after layoffs.”

The Court explained that deficient performance effectively protects the

government’s interests when addressing the employment of staff members. When evaluating high-level employees, the government, however,

may consider “who will loyally implement its policies.” 206

Although the Court recognized two classes of employees, staff members and high-level employees, it nevertheless explained that performance

is the central issue, with patronage being a factor with respect only to the

latter group.

The Court recently explained that public contractors may receive the

protection afforded staff members in O’Hare Truck Service Inc. v. Northlake.207 The O’Hare Court rejected drawing a distinction between inde202. 427 U.S. 347, 367–68 (1976).

203. 445 U.S. 507 (1980).

204. Id. at 518.

205. 497 U.S. 62, 74–75 (1990).

206. Id. at 74.

207. 116 S. Ct. 2353, 2358 (1996).
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pendent contractors and employees because contractors are not less dependent on government income than are employees.208

Free Speech Claims

When public employees claim that their employers made adverse employment decisions because of their speech, two general issues are central: (1) whether their speech was a “matter of public concern” and (2) if

so, whether it undermined an effective work environment.209 The Supreme Court has recognized that both inquiries describe standards, not

rules, that must be applied to the facts of each case.

The First Amendment requires balancing the need for employees to

speak out on a matter of public concern against the need for an effective

working relationship.210 In determining what constitutes a matter of

public concern, courts should consider “the content, form and context”

of the statement.211 Employers need not determine what the employee

actually said;212 they must only reasonably investigate the nature of the

employee’s speech.213 If there was a substantial likelihood that the employee engaged in protected speech, a manager must investigate before

making an adverse employment decision regarding the employee.214 Only

procedures outside the range of what a reasonable manager would use

indicate a violation. The reasonableness standard is objective; the subjective good faith of the employer is not controlling.215

There are two situations, however, where speech on a matter of public

concern may nevertheless be unprotected under the First Amendment:

employment relationships that require confidentiality, and those that

require harmony because of the “personal or intimate” nature of the

work.216 In evaluating the second prong—disruptiveness—courts are to

show “wide deference to the employer’s judgment” when “a close work208. Id. at 2359–60.

209. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

210. Id. at 568.

211. Connick v. Meyers, 461 U.S. 138, 147–48 (1983).

212. Waters v. Churchill, 114 S. Ct. 1878, 1889–90 (1994) (O’Connor, J.) (plurality

opinion joined by Chief Justice Rehnquist and Justices Souter and Ginsburg).

213. Id.

214. Id. at 1889 (plurality opinion).

215. Id.

216. Pickering v. Board of Educ., 391 U.S. 563, 570 n.3 (1968).
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40

ing relationship [is] essential to fulfilling public responsibilities.”217 If,

however, an employee does not have a “confidential, policymaking, or

public contact role,” the level of disruptiveness would probably be

“minimal.”218

Dismissal based on pretextual reasons, however, is impermissible.219

For example, if an employer fires an employee not because of unprotected, disruptive statements, but because of protected, nondisruptive

speech, then the employer has violated the employee’s First Amendment

rights.

When considering both free speech and political patronage claims

under the First Amendment, the dominant inquiry includes consideration of the employee’s job and the effective performance of the government. With respect to free speech claims, the First Amendment applies

only if the speech covered a matter of public concern. The First Amendment, however, does not create a property or liberty right to a job. It

simply ensures that the governmental employer does not make adverse

employment decisions that violate a person’s right to free speech.

Dormant Commerce Clause Claims

Violations of the dormant commerce clause are generally actionable under § 1983. Article I, § 8, cl.3 confers power upon Congress to regulate

interstate commerce; it also acts as a restraint on state regulations even

when Congress has not regulated in the area. In Dennis v. Higgins,

220 the

Supreme Court held that the commerce clause is not only a “powerallocating provision, giving Congress preemptive authority,” but is also a

provision that confers rights, privileges, and immunities within the

meaning of 42 U.S.C. § 1983.221 Courts may award declaratory and injunctive relief for dormant commerce clause violations.222

217. Connick v. Meyers, 461 U.S. 138, 147–48 (1982).

218. Rankin v. McPherson, 483 U.S. 378, 390–91 (1987).

219. Waters v. Churchill, 114 S. Ct. 1878, 1889 (1994) (citing Mount Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)) (First Amendment free speech claim

required determining whether the plaintiff was fired because of protected or unprotected

speech).

220. 498 U.S. 439 (1991).

221. Id. at 447.

222. Id. at 451.
CHAPTER 3: DEPRIVATION OF SELECTED CONSTITUTIONAL RIGHTS

41

The Higgins Court held that there was an implied right under the

commerce clause. To determine whether this right was implied, the

Court applied the three-part test it has used in determining whether

rights under federal statutes are actionable under § 1983: (1) whether the

provision “creates obligations binding on the governmental unit”; (2)

whether the plaintiff’s interest is “too vague and amorphous”; and (3)

whether the provision was designed to benefit the plaintiff.223 The Court

found the dormant commerce clause was intended to create individual

rights, even though Congress may at any time eliminate the right by using its plenary powers.

Dormant commerce clause claims, however, are generally not actionable in federal or state court when the claims involve challenges to the

state tax scheme. In National Private Truck Council, Inc. v. Oklahoma Tax

Commission,

224 the Court articulated an exception to Higgins: § 1983 does

not authorize federal or state courts to issue declaratory and injunctive

relief in dormant commerce clause cases when state law provides an

“adequate remedy at law.”225 In federal court, such relief is inappropriate

because of the principles of comity and federalism, and the Tax Injunction Act.226 In state court, declaratory and injunctive relief are inappropriate under § 1983 because Congress did not intend for state courts to

intrude into state taxing schemes when an adequate legal remedy exists.

223. Id. at 448–49 (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103,

106 (1989)).

224. 515 U.S. 582 (1995).

225. Id. at 588.

226. Id. at 586.

43

Chapter 4

Deprivation of Federal

Statutory Rights

Maine v. Thiboutot: “Plain Language”

Approach

The “and laws” phrase in § 1983 affords a remedy for the deprivation of

some federal statutory rights, as well as federal constitutional rights. In

Maine v. Thiboutot,227 the State of Maine and its commissioner of human

services had allegedly deprived certain individuals of welfare benefits to

which they were entitled under the Social Security Act.228 The Supreme

Court, emphasizing that Congress had not attached any modifiers to the

phrase “and laws,” held, over a strong dissent,229 that the phrase “means

what it says” and that “the plain language of [§ 1983] undoubtedly embraces [the] claim that [state officials] violated the Social Security Act.”230

Defining the Limits of “And Laws” Actions

Since Thiboutot, the Supreme Court has decided a number of cases in

which it has attempted to define the limits of “and laws” actions under

227. 448 U.S. 1 (1980).

228. See 42 U.S.C. §§ 301–1397f (1988 & Supp. V).

229. Justice Lewis F. Powell, Jr., with whom Chief Justice Warren E. Burger and thenJustice William Rehnquist joined, concluded that the historical evidence convincingly

showed that the phrase “and laws,” as used in § 1983, “was—and remains—nothing more

than a shorthand reference to equal rights legislation enacted by Congress.” Thiboutot,

448 U.S. at 12 (Powell, J., dissenting).

230. Thiboutot, 448 U.S. at 4.
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§ 1983. The Court recently summarized the principles it has developed

for “and laws” actions as follows:

In order to seek redress through § 1983 . . . a plaintiff must assert the

violation of a federal right, not merely a violation of federal law. We

have traditionally looked at three factors when determining whether a

particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the

plaintiff. 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. 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.

Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is

enforceable under § 1983. Because our inquiry focuses on congressional

intent, dismissal is proper if Congress “specifically foreclosed a remedy

under § 1983.” Congress may do so expressly, by forbidding recourse to

§ 1983 in the statute itself, or impliedly, by creating a comprehensive

enforcement scheme that is incompatible with individual enforcement

under § 1983.231

Thus the two major issues for § 1983 “and laws” cases are whether a federal statute creates an enforceable right and whether Congress foreclosed

the § 1983 lawsuit by enacting a comprehensive scheme in the federal

statute.

Enforceable Rights

The most difficult question for “and laws” cases is whether the relevant

federal statute creates an enforceable right actionable under § 1983. At

issue in Pennhurst State School & Hospital v. Halderman232 was whether

42 U.S.C. § 6009, the “bill of rights” provision of the Developmental Disabilities Assistance and Bill of Rights Act, created enforceable rights in

favor of the developmentally disabled.233 The Court identified the correct

inquiry as whether the provision “imposed an obligation on the States to

231. Blessing v. Freestone, 117 S. Ct. 1353, 1359–60 (1997) (emphasis in original; cites

omitted).

232. 451 U.S. 1 (1981).

233. Id. at 15 (citing former § 6010, which is now § 6009).
CHAPTER 4: DEPRIVATION OF FEDERAL STATUTORY RIGHTS

45

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.”234 Noting that “if Congress intends to impose a condition on the

grant of federal moneys, it must do so unambiguously[,]”235 the Court

concluded that “the provisions of § [6009] were intended to be hortatory,

not mandatory.”236 “Congress intended to encourage, rather than mandate, the provision of better services to the developmentally disabled.”237

Accordingly, § 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 § 1983.238

In the next several decisions, the Supreme Court found that federal

statutes created enforceable rights. For example, in Golden State Transit

Corp. v. Los Angeles, 239 the Court held that Golden State could sue for

damages under § 1983 to remedy the violation of its right under the National Labor Relations Act240 not to have the renewal of its taxi license

conditioned on the settlement of a pending labor dispute.241

Similarly, in Wright v. City of Roanoke Redevelopment & Housing

Authority,

242 the Court determined that regulations created enforceable

rights. 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.”243 The Department of Housing and

Urban Development (“HUD”) had, in its implementing regulations,

“consistently considered ‘rent’ to include a reasonable amount for the use

of utilities,”244 which reasonable amount did “not include charges for

utility consumption in excess of the public housing agency’s schedule of

allowances for utility consumption.”245 Renters brought suit under

§ 1983 alleging that the Housing Authority had “imposed a surcharge for

234. Id. at 18.

235. Id. at 17.

236. Id. at 24.

237. Id. at 20.

238. Id. at 10–11.

239. 493 U.S. 103 (1989).

240. See 29 U.S.C. §§ 151–169 (1988 & Supp. V).

241. Golden State, 493 U.S. at 112–13.

242. 479 U.S. 418 (1987).

243. Id. at 420 (citations omitted).

244. Id.

245. Id. at 421 n.3.
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46

‘excess’ utility consumption that should have been part of petitioners’

rent and deprived them of their statutory right to pay only the prescribed

maximum portion of their income as rent.” 246 The Court determined

that the HUD regulations gave low-income tenants specific and definable

rights to a reasonable utility allowance that were enforceable under

§ 1983, and that the regulations were fully authorized by the statute.247

The Court in Wilder v. Virginia Hospital Ass’n248 also found an enforceable right as it examined the Boren Amendment to the Medicaid

Act,249 which requires a participating state to reimburse health care providers at “reasonable rates.”250 The Court concluded that health care providers were clearly intended beneficiaries of the Boren Amendment,251

that the amendment was cast in mandatory terms, imposing a “binding

obligation” on participating states to adopt reasonable rates of reimbursement for health care providers, and that this obligation was enforceable under § 1983.252 Rejecting the argument that the obligation imposed by the Boren Amendment was “too vague and amorphous” to be

“capable of judicial enforcement,”253 the Court noted that “the statute

and 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.”254

In contrast, the Court in Suter v. Artist M.255 did not find an enforceable right as it considered a provision of the Adoption Assistance and

Child Welfare Act of 1980.256 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

246. Id. at 421.

247. Id. at 430.

248. 496 U.S. 498 (1990).

249. See 42 U.S.C. §§ 1396–1396v (1998 & Supp. V).

250. 42 U.S.C. § 1396a(a)(13)(A) (1998 & Supp. V).

251. Wilder, 496 U.S. at 510.

252. Id. at 512.

253. Id. at 519.

254. Id.

255. 503 U.S. 347 (1992).

256. Id. at 350. See 42 U.S.C. §§ 620–628, 670–679a (1988 & Supp. V).
CHAPTER 4: DEPRIVATION OF FEDERAL STATUTORY RIGHTS

47

for approval by the Secretary of Health and Human Services.257 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.258

The issue before the Court was whether “Congress, in enacting the

Adoption Act, unambiguously conferr[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.”259 The Court held that it

did not. The Court 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.260

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 the methods for calculating rates,”261 whereas

in the instant case the Child Welfare Act contained “[n]o further statutory guidance . . . as to how ‘reasonable efforts’ are to be measured.”262

257. 42 U.S.C. §§ 620–628, 670–679a (1988 & Supp. V).

258. 42 U.S.C. § 671(a)(15) (1988).

259. Suter, 503 U.S. at 357.

260. Id.

261. Id. at 359.

262. Id. at 360. 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 the Act 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 grounds 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. that section 471(a)(15) [42 U.S.C. § 671(a)(15)] of the Act

is not enforceable in a private right of action.

42 U.S.C. § 1320a-2 (amended October 20, 1994).

Thus, while the holding of Suter with respect to the “reasonable efforts” provision

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).
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48

Wilder and Suter Synthesized

Courts of appeals have uniformly taken the position that the holdings of

Wilder and Suter can and should be synthesized.263 Later, in Livadas v.

Bradshaw,

264 the Supreme Court held that the plaintiff had an enforceable right under the National Labor Relations Act “to complete the collective bargaining process and agree to an arbitration clause.”265 The

Court observed that “apart from . . . exceptional cases, § 1983 remains a

generally and presumptively available remedy for claimed violations of

federal law.”266

In Blessing v. Freestone,

267 a unanimous 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.268 While the Court did not foreclose the

possibility that certain 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.269 The case was remanded,

and plaintiffs were advised to articulate with particularity the rights they

were seeking to enforce. Blessing will force plaintiffs to break their claims

down into “manageable analytic bites” so that the court can “ascertain

263. See, e.g., Wood v. Tompkins, 33 F.3d 600, 606 (6th Cir. 1994) (“Suter majority

expressly relied on parts of Wilder, carefully distinguished other parts, did not overrule

the earlier case, and is entirely consistent with it.”); Lampkin v. District of Columbia, 27

F.3d 605, 610 (D.C. Cir. 1994) (synthesizing Suter and Wilder); Miller v. Whitburn, 10

F.3d 1315, 1319 (7th Cir. 1993) (Suter “is not the death knell of the analytic framework

established in Wilder”); Marshall v. Switzer, 10 F.3d 925, 928 (2d Cir. 1993) (synthesizing

Suter and Wilder); Arkansas Med. Soc’y, Inc. v. Reynolds, 6 F.3d 519, 525 (8th Cir. 1993)

(“We choose to synthesize the two cases by proceeding with the two-step Golden State

analysis used in Wilder, bearing in mind the additional considerations mandated by

Suter.”); Stowell v. Ives, 976 F.2d 65, 68 (1st Cir. 1992) (finding it “both prudent and possible to synthesize the teachings of Suter with the Court’s prior precedents”).

264. 114 S. Ct. 2068 (1994).

265. Id. at 2083–84.

266. Id.

267. 117 S. Ct. 1353 (1997).

268. 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).

269. Blessing, 117 S. Ct. at 1360–61.
CHAPTER 4: DEPRIVATION OF FEDERAL STATUTORY RIGHTS

49

whether each separate claim satisfies the various criteria [the Supreme

Court has] set forth for determining whether a federal statute creates

rights.”270

Comprehensive Scheme: Congress’s Intent to

Foreclose

The Supreme Court recently explained that unless the federal statute under consideration “expressly curtails § 1983 actions,”271 officials trying to

establish Congress’s intent to foreclose must “make the difficult showing

that allowing § 1983 actions to go forward in these circumstances ‘would

be inconsistent with Congress’s carefully tailored scheme.’”272 In only

two cases—Middlesex County Sewerage Authority v. National Sea Clammers Ass’n273 and Smith v. Robinson274—has the Court determined that

comprehensive schemes within a statute foreclosed the § 1983 lawsuit.

In Sea Clammers, an association claimed that the County Sewerage

Authority discharged and dumped pollutants, violating the Federal Water Pollution Control Act275 and the Marine Protection, Research, and

Sanctuaries Act of 1972.276 In addition, the County Sewerage Authority

allegedly violated the terms of their permits.277 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,”278 the Court addressed,

sua sponte, the enforceability of these Acts pursuant to § 1983. Noting

that both statutes contained “unusually elaborate enforcement provisions[,]”279 the Court held that “[w]hen the remedial devices provided in

a particular Act are sufficiently comprehensive, they may suffice to dem270. Id. at 1360.

271. Id. at 1362.

272. Id. (quoting Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107

(1989)).

273. 453 U.S. 1 (1981).

274. 468 U.S. 992 (1984).

275. See 33 U.S.C. §§ 1251–1387 (1988 & Supp. V).

276. See 33 U.S.C. §§ 1401–1445 (1988 & Supp. V).

277. Sea Clammers, 453 U.S. at 12.

278. Id.

279. Id. at 13.
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onstrate congressional intent to preclude the remedy of suits under

§ 1983.”280

Similarly, in Smith the Court concluded that the “carefully tailored

administrative and judicial mechanism”281 embodied in the Education of

the Handicapped Act (EHA)282 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.”283 The

dissent disagreed:

The natural resolution of the conflict between the EHA [renamed

IDEA], 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] 1983.284

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 upon it.285

Except for these two cases, the Court has determined that the federal

statutes under consideration did not foreclose a § 1983 lawsuit.286

280. Id. at 20.

281. Smith, 468 U.S. at 992.

282. 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).

283. Smith, 468 U.S. at 1009.

284. Id. at 1024 (Brennan, J., joined by Marshall, J. and Stevens, J., dissenting).

285. See 20 U.S.C. § 1415(f) (1988 & Supp. V).

286. See, e.g., Blessing v. Freestone, 117 S. Ct. 1353, 1362 (1997); Wilder v. Virginia

Hosp. Ass’n, 496 U.S. 498, 522–23 (1990); Wright v. City of Roanoke Redev. & Hous.

Auth., 479 U.S. 418, 425 (1987).
51

Chapter 5

Governmental and

Supervisory Liability

State Liability: Eleventh Amendment

Immunity and Status as “Person” Under

§ 1983

The Eleventh Amendment287 shields a state from suit in federal court

unless the state consents to suit288 or waives its immunity.289 A damages

action against a state official, in his or her official capacity, is tantamount

to a suit against the state itself and, absent waiver or consent, would be

barred by the Eleventh Amendment as well.290 Although Congress may

287. “The Judicial Power of the United States shall not be construed to extend to any

suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend.

XI.

In Hans v. Louisiana, 134 U.S. 1 (1890), the amendment was interpreted to prohibit

suits in federal court against a state by citizens of the defendant state.

288. A state’s consent to suit must be unequivocally expressed. Edelman v. Jordan,

415 U.S. 651, 673 (1974).

289. A state’s waiver of sovereign immunity in its own state courts is not a waiver of

Eleventh Amendment immunity in the federal courts. Florida Dep’t of Health v. Florida

Nursing Home Ass’n, 450 U.S. 147, 150 (1981) (per curiam).

290. In Ex Parte Young, 209 U.S. 123 (1908), the Supreme Court held that a state official who acted unconstitutionally could be sued in his official capacity for prospective

relief. Such a suit “does not affect the State in its sovereign or governmental capacity”

because the official who commits an unconstitutional act is deemed “stripped of his official or representative character . . . .” Id. at 159–60.

The Eleventh Amendment bars prospective relief sought against state officials in their

official capacity where supplemental jurisdiction is asserted to enforce conformity with
SECTION 1983 LITIGATION

52

expressly abrogate a state’s Eleventh Amendment immunity pursuant to

its enforcement power under section 5 of the Fourteenth Amendment,291

Congress did not do so in passing § 1983.292 Thus the Eleventh Amendment is applicable to § 1983 litigation. Even if a third party indemnifies a

state, the Eleventh Amendment still applies and protects the state from

an adverse judgment.293

A question often raised is whether certain subdivisions, boards, or

agencies are considered “arm[s] of the State” for Eleventh Amendment

purposes. In Mount Healthy City School District Board of Education v.

Doyle,

294 the Supreme Court looked, in part, to the nature of the entity

created by state law and held that a local school district was not an “arm

of the State” where Ohio law characterized the local school district as a

political subdivision.295 In Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency,

296 the Supreme Court followed the Mount Healthy approach and adopted a presumption that an interstate compact agency

would not be 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 . . . .”297

provisions of state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106

(1984). Where a state has waived its Eleventh Amendment immunity, however, and consented to suit, a state may be named as a defendant on a state law claim (e.g., respondeat

superior), where that claim is part of the same “case or controversy” as the § 1983 claim(s)

against the state actors sued in their individual capacities. Rosen v. Chang, 758 F. Supp.

799, 803–04 (D.R.I. 1991).

291. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Cf. Seminole Tribe v. Florida, 116 S. Ct.

1114 (1996), holding that Congress had no power under the Commerce Clause to abrogate states’ Eleventh Amendment immunity.

292. Quern v. Jordan, 440 U.S. 332, 342 (1979).

293. Regents of the University of California v. Doe, 117 S. Ct. 900, 905 (1997).

294. 429 U.S. 274 (1977).

295. Id. at 280. Compare Martinez v. Board of Educ., 748 F.2d 1393, 1396 (10th Cir.

1984) (school districts in New Mexico are “arms of the State”), with Daddow v. Carlsbad

Mun. Sch. Dist., 898 F.2d 1235 (D. N.M. 1995) (local board of education in New Mexico

is not “arm of the State”), cert. denied, 116 S. Ct. 753 (1996).

296. 440 U.S. 391 (1979).

297. Id. at 401. See also Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30

(1994), where the Court held that injured railroad workers could assert a federal statutory

right, under the FELA, to recover damages against the Port Authority and that concerns

underlying the Eleventh Amendment—“the States’ solvency and dignity”—were not

touched. Id. at 52. The Court noted:
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53

Because the Eleventh Amendment operates to bar suits against states

only in federal court, a question emerged as to whether a state could be

sued under § 1983 in state court. In Will v. Michigan Department of State

Police,

298 the Court held that neither a state nor a state official in his official capacity is a “person” for purposes of a § 1983 damages action.299

Thus, even if a state is found to have waived its Eleventh Amendment

immunity in federal court, or even if a § 1983 action is brought in state

court, where the Eleventh Amendment has no applicability, Will precludes a damages action against the state governmental entity. This

holding does not apply when a state official is sued in his official capacity

for prospective injunctive relief.300

An official may be a state official for some purposes and a local government official for others. For example, in McMillian v. Monroe

County,

301 a five-member majority of the Supreme Court held that a

county sheriff in Alabama is not a final policymaker for the county in the

area of law enforcement.302 The Court in McMillian noted 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 policymakers 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.303

The proper focus is not on the use of profits or surplus, but rather is on losses and debts.

If the expenditures of the enterprise exceed receipts, is the State in fact obligated to bear

and pay the resulting indebtedness of the enterprise? When the answer is “No”—both

legally and practically—then the Eleventh Amendment’s core concern is not implicated.

Id. at 51.

See also Harter v. Vernon, 101 F.3d 334, 340 (4th Cir. 1996) (“In sum, when determining if an officer or entity enjoys Eleventh Amendment immunity a court must first

establish whether the state treasury will be affected by the lawsuit. If the answer is yes, the

officer or entity is immune under the Eleventh Amendment.”).

298. 491 U.S. 58 (1989).

299. Id. at 71.

300. Id. at 71 n.10.

301. 117 S. Ct. 1734 (1997).

302. Id. at 1736.

303. Id. at 1737.
SECTION 1983 LITIGATION

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The Court emphasized the role that state law plays in the court’s determination of whether an official has final policy-making authority for a

local government entity. As the Court noted, “[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.”304 Thus, 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.305

In dissent, however, 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, policymakers.306

In light of McMillian, lower courts may need to reconsider their prior

determinations as to whether an official represents a state or a county.307

304. Id.

305. Id. at 1740.

306. Id. at 1746 (Ginsburg, J., joined by Stevens, Souter, & Breyer, JJ., dissenting).

307. See, e.g., Turquitt v. Jefferson County, 137 F. 3d 1285, 1291 (11th Cir. 1998) (en

banc) (overruling prior decision that erroneously held that, under Alabama law, a county

sheriff was a final policymaker for the county, not for the state, in the area of daily management of jails).
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Municipal Liability

No Vicarious Liability

Monell v. Department of Social Services308 holds that local governments

may be liable for damages, as well as declaratory and injunctive relief,

whenever “the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body’s officers. Moreover . . . local

governments . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making

channels.”309

Monell rejects government liability based on the doctrine of respondeat

superior. Thus, a government body cannot be held liable under § 1983

merely because it employs a tortfeasor.310 Monell overruled Monroe v.

Pape311 to the extent that Monroe had held that local governments could

not be sued as “persons” under § 1983.

308. 436 U.S. 658 (1978).

309. Id. at 690–91. There is conflicting authority as to whether the Monell “custom or

policy” requirement applies to claims for only prospective relief. In Los Angeles Police

Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993), the majority stated that

“the City can be subject to prospective injunctive relief even if the constitutional violation

was not the result of an ‘official custom or policy’” (citing Chaloux v. Killeen, 886 F.2d

247, 251 (9th Cir. 1989)). In a concurring opinion, however, Judge Fletcher interpreted

Chaloux as holding that the Monell requirement “does not apply to suits against municipalities that seek only prospective relief. . . .” Gates, 995 F.2d at 1477. See also Nix v. Norman, 879 F.2d 429, 433 (8th Cir. 1989) (insisting that plaintiff in official capacity injunctive relief action satisfy Monell official custom or policy requirement).

310. Monell, 436 U.S. at 691–92. The Court has held that if there is no constitutional

violation, there can be no liability, either on the part of the individual officer or the government body. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has

suffered no constitutional injury at the hands of the individual police officer, the fact that

the departmental regulations might have authorized the use of constitutionally excessive

force is quite beside the point.”) (emphasis in original). Accord, Thompson v. Boggs, 33

F.3d 847, 859 (7th Cir. 1994) (where no underlying constitutional violation by officer, no

liability on the part of the city or police chief). But see Fagan v. City of Vineland, 22 F.3d

1283, 1292 (3d Cir. 1994) (“A finding of municipal liability does not depend automatically or necessarily on the liability of any police officer.”). See also Mark v. Borough of

Hatboro, 51 F.3d 1137, 1153 (3d Cir. 1995) (criticizing the approach of the panel opinion

in Fagan).

311. 365 U.S. 167 (1961).
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Personal and Official Capacity Suits

It is important to understand the difference between personal capacity

suits and official capacity suits.312 When a plaintiff names an official in

his individual capacity, the plaintiff is seeking “to impose personal liability upon a government official for actions he takes under color of state

law.”313 When a plaintiff names a government official in his official capacity, the plaintiff is seeking to recover compensatory damages from the

government body itself.314 Naming a government official in his official

capacity is the equivalent of naming the government entity itself as the

defendant, and requires the plaintiff to make out Monell-type proof of an

official policy or custom as the cause of the constitutional violation. Failure to expressly state that the official is being sued in his individual capacity may be construed as an intent to sue the defendant only in his official capacity.315 To avoid confusion, where the intended defendant is the

government body, the plaintiff should name the entity itself, rather than

the individual official in his official capacity.316

While qualified immunity is available to an official sued in his personal capacity,317 there is no qualified immunity available in an official

capacity suit. The Supreme Court has held that a local government de312. See Hafer v. Melo, 112 S. Ct. 358, 361–62 (1991) (personal and official capacity

suits distinguished).

313. Kentucky v. Graham, 473 U.S. 159, 165 (1985).

314. See Brandon v. Holt, 469 U.S. 464, 471–72 (1985); Kentucky, 473 U.S. at 159.

315. See, e.g., Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989); Nix v. Norman, 879

F.2d 429, 431 (8th Cir. 1989). But see Biggs v. Meadows, 66 F.3d 56, 59–60 (4th Cir. 1995)

(adopting the view of the majority of circuits, including the Second, Third, Fifth, Seventh,

Ninth, Tenth, and Eleventh, that looks to “the substance of the plaintiff’s claim, the relief

sought, and the course of proceedings to determine the nature of a § 1983 suit when a

plaintiff fails to allege capacity. [citing cases] . . . Because we find the majority view to be

more persuasive, we hold today that a plaintiff need not plead expressly the capacity in

which he is suing a defendant in order to state a cause of action under § 1983”). See also

Rodriguez v. Phillips, 66 F.3d 470, 482 (2d Cir. 1995) (“Where, as here, doubt may exist

as to whether an official is sued personally, in his official capacity or in both capacities, the

course of proceedings ordinarily resolves the nature of the liability sought to be imposed.”).

316. See, e.g., Leach v. Shelby County Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989), cert.

denied, 495 U.S. 932 (1990).

317. See infra Chapter 7.
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fendant has no qualified immunity from compensatory damages liability.318

Pleading Requirement

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination

Unit,

319 the Supreme Court unanimously rejected the “heightened

pleading standard” in cases alleging municipal liability. The Court held

that the lower court had erroneously upheld the dismissal of a complaint

against a governmental entity for failure to plead with the requisite specificity.320 While leaving open the question of “whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials,”321 the Supreme Court refused

to equate a municipality’s freedom from respondeat superior liability with

immunity from suit.322 Finding it “impossible to square the ‘heightened

pleading requirement’ . . . with the liberal system of ‘notice pleading’ set

up by the Federal Rules[,]” the Court suggested that Federal Rules 8 and

9(b) would have to be rewritten to incorporate such a “heightened

pleading standard.”323 The Court concluded by noting that “[i]n the absence of such an amendment, federal courts and litigants must rely on

summary judgment and control of discovery to weed out unmeritorious

claims sooner rather than later.”324

318. Owen v. City of Independence, 445 U.S. 622 (1980). On the other hand, while

punitive damages may be awarded against individual defendants under § 1983 (see Smith

v. Wade, 461 U.S. 30 (1983)), local governments are absolutely immune from punitive

damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

319. 113 S. Ct. 1160 (1993).

320. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954

F.2d 1054, 1058 (5th Cir. 1992).

321. Leatherman, 113 S. Ct. at 1162.

322. Id.

323. Id. at 1163.

324. Id. For post-Leatherman decisions involving pleading against local government

entities, see 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.

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.”).
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Methods of Establishing Municipal Liability

Unconstitutional Policy

The clearest case for government liability under Monell v. Department of

Social Services325 is a case like Monell itself, where an unconstitutional

policy statement, ordinance, regulation, or decision is formally adopted

and promulgated by the governing body itself or a department or agency

thereof. In Monell, the Department of Social Services and the Board of

Education had officially adopted a policy requiring pregnant employees

to take unpaid maternity leave before medically necessary.326

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.327

“Custom or Usage”

Monell allows the imposition of government liability not only when the

challenged conduct executes or implements a formally adopted policy,

but also when that conduct reflects “practices of state officials so permanent and well settled as to constitute a ‘custom or usage’ with the force of

law.”328 Liability is attributed to the municipality in custom-type cases

325. 436 U.S. 658 (1978).

326. See also City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (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 (1980) (personnel decision made by City

Council constitutes official city policy). Note that in both Fact Concerts and Owen, decisions officially adopted by the government body itself need not have general or recurring

application in order to constitute official “policy.”

327. See, e.g., Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 793 (7th

Cir. 1991). But see McKusick v. City of Melbourne, 96 F.3d 478, 484 (11th Cir. 1996)

(holding that development and implementation of administrative enforcement procedure, going beyond terms of state court injunction, leading to arrest of all antiabortion

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, holding that “[d]efendants’ decision to authorize use of deadly

force to apprehend nondangerous fleeing burglary suspects was . . . a deliberate choice

from among various alternatives. . . .”), cert. denied, 114 S. Ct. 1219 (1994).

328. Monell, 436 U.S. at 691. See also Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991)
CHAPTER 5: GOVERNMENTAL AND SUPERVISORY LIABILITY

59

through a policy maker’s actual or constructive knowledge of and acquiescence in the unconstitutional custom or practice.329 Acts of omission,

as well as commission, may serve as the predicate for a finding of unconstitutional policy or custom.330

Failure to Train, Supervise, or Discipline

A city may be liable for failure to train, supervise, or discipline its employees. In City of Oklahoma City v. Tuttle,

331 seven justices agreed that a

verdict against the city could not be upheld where the trial court had instructed the jury that “a single, unusually excessive use of force [by a police officer] may . . . warrant an inference that it was attributable to inadequate training or supervision amounting to ‘deliberate indifference’

or ‘gross negligence’ on the part of the officials in charge.”332 However,

the only clear consensus reached in Tuttle was that municipal liability

based on a policy of inadequate training could not be derived from a single incident of misconduct by a non-policy-making municipal employee.

In City of Canton v. Harris,

333 the Court unanimously rejected the

city’s argument that municipal liability can be imposed only where the

(“If a practice is so permanent and well settled as to constitute a ‘custom or usage’ with

the force of law, a plaintiff may proceed . . . despite the absence of written authorization

or express municipal policy.”), cert. denied, 112 S. Ct. 640 (1992).

329. See, e.g., McNabola v. Chicago Transit Auth., 10 F.3d 501, 511 (7th Cir. 1993)

(“A municipal ‘custom’ may be established by proof of the knowledge of policymaking

officials and their acquiescence in the established practice.”).

330. See, e.g., Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (holding that

“[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”).

331. 471 U.S. 808 (1985).

332. Id. at 813.

333. 489 U.S. 378 (1989). In City of Canton, the plaintiff claimed a deprivation of her

right, under the due process clause, to receive necessary medical care while in police custody. She asserted a claim of municipal liability for this deprivation based on a theory of

“grossly inadequate training.” The plaintiff presented evidence of a municipal regulation,

establishing a policy of giving police shift commanders complete discretion to make decisions as to whether prisoners were in need of medical care, accompanied by evidence that

such commanders received no training or guidelines to assist in making such judgments.

Id. at 382. The Sixth Circuit upheld the adequacy of the district court’s jury instructions

on the issue of municipal liability for inadequate training, stating that the plaintiff could

succeed on her failure-to-train claim “[where] the plaintiff . . . prove[s] that the municipality acted recklessly, intentionally, or with gross negligence.” Id. (quoting App. to Pet.

for Cert. at 5a).
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60

challenged policy is itself unconstitutional, and concluded that “there are

limited circumstances in which an allegation of a ‘failure to train’ can be

the basis for liability under § 1983.”334 The Court held that “the inadequacy of training policy may serve as the basis for § 1983 liability only

where the failure to train amounts to deliberate indifference to the rights

of persons with whom the police come into contact.”335

The Court was careful to note that the “deliberate indifference” standard has nothing to do with the level of culpability that may be required

to make out the underlying constitutional wrong, but rather has to do

with what is required to establish the municipal policy as the “moving

force” behind the constitutional violation.336 On remand the plaintiff

would have to identify a particular deficiency in the training program

and prove that the identified deficiency was the actual cause of the plaintiff’s constitutional injury. It would not be enough to establish that the

particular officer was inadequately trained, nor that there was negligent

administration of an otherwise adequate program, nor that the conduct

resulting in the injury could have been avoided by more or better training. The federal courts are not to become involved “in an endless exercise

of second-guessing municipal employee-training programs.”337

334. Id. at 387.

335. Id. at 388. The Court observed that:

[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 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. [footnotes

omitted]

Id. at 390.

336. Id. at 388 n.8. In Farmer v. Brennan, 114 S. Ct. 1970 (1994), the Supreme Court

recognized two types of deliberate indifference: subjective deliberate indifference and

objective deliberate indifference. Subjective deliberate indifference is necessary to prove

an Eighth Amendment violation by prison officials. Id. at 1980. “[A] prison official may

be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards

that risk by failing to take reasonable measures to abate it.” Id. at 1984. In contrast, objective deliberate indifference is necessary to prove a failure-to-train case. “It would be hard

to describe the Canton understanding of deliberate indifference, permitting liability to be

premised on obviousness or constructive notice, as anything but objective.” Id. at 1981.

337. City of Canton, 489 U.S. at 390–91.
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61

Justice Sandra Day O’Connor, in her concurring opinion, elaborated

on how a plaintiff could show that a municipality was deliberately indifferent to an obvious need for training. First, 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.”338

Justice O’Connor was also willing to recognize 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 of police discretion, . . . [which

pattern] could put the municipality on notice that its officers confront

the particular situations on a regular basis, and that they often react in a

manner contrary to constitutional requirements.”339

Thus, City of Canton identifies two different approaches to a failureto-train case.340 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.341 Second, a municipality may be held responsible under

338. 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. Id. at 390 n.10.

339. Id. at 397 (O’Connor, J., concurring in part and dissenting in part).

340. See, e.g., Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1327

(7th Cir. 1993) (setting out an analysis which clearly illustrates the two different methods

of establishing City of Canton deliberate indifference); Thelma D. v. Board of Educ., 934

F.2d 929, 934–45 (8th Cir. 1991) (same).

341. For examples of cases in which courts have found a failure to train in an area

where the need for training is obvious, see, e.g., 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 & County of Denver, 997 F.2d 730, 741 (10th Cir. 1993) (finding evidence

clearly sufficient to permit 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 County, 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 inhabi-
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62

§ 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.342

Under some circumstances, having no policy may constitute deliberate indifference.343 Furthermore, at least one court of appeals has rejected

the notion “that a municipality may shield itself from liability for failure

to train its police officers in a given area simply by offering a course

nominally covering the subject, regardless of how substandard the content and quality of that training is.”344

Failure to Screen in Hiring

In Board of County Commissioners v. Brown,

345 the Supreme Court revisited the issue of municipal liability under § 1983 in the context of a single

bad hiring decision made by a county sheriff who was stipulated to be the

final policy maker for the county in matters of law enforcement.

Sheriff B.J. Moore hired his son’s nephew, Stacy Burns, despite an extensive “rap sheet” that included numerous violations and arrests but no

felonies. The plaintiff suffered a severe knee injury when Reserve Deputy

Burns forcibly extracted her from the car driven by her husband, who

tants as a matter of law.”), cert. denied, 112 S. Ct. 275 (1991).

342. See, e.g., Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994) (“Where the city

equips its police officers with potentially dangerous animals, and evidence is adduced that

those animals inflict injury in a significant percentage of the cases in which they are used,

a failure to adopt a departmental policy governing their use, or to implement rules or

regulations regarding the constitutional limits of that use, evidences a ‘deliberate indifference’ to constitutional rights.”).

343. See, e.g., Vineyard v. County of Murray, 990 F.2d 1207, 1212 (11th Cir. 1993)

(“The evidence demonstrates that the Sheriff’s Department had inadequate procedures

for recording and following up complaints against individual officers . . . no policies and

procedures manual . . . [and] inadequate policies of supervision, discipline and training of

deputies in the Murray County Sheriff’s Department. . . .”); Oviatt v. Pearce, 954 F.2d

1470, 1477–78 (9th Cir. 1992) (holding that the decision not to take any action to alleviate

the problem of detecting missed arraignments constitutes a policy of deliberate indifference to the obvious likelihood of prolonged and unjustified incarcerations).

344. Russo v. City of Cincinnati, 953 F.2d 1036, 1047 (6th Cir. 1992) (finding that the

simple fact that officers took a seven-hour course entitled “Disturbed-Distressed Persons”

did not mean that their training was adequate as a matter of law).

345. 117 S. Ct. 1382 (1997).
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63

had avoided a police checkpoint. She sued both Burns and the county

under § 1983.

In a five–four opinion written by Justice O’Connor, the Supreme

Court held that the county did not violate the plaintiff’s rights by hiring

Deputy Burns.346 It 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.”347 As the Court noted, its prior cases recognizing municipal liability based on a single act or decision attributed to

the government entity involved decisions of local legislative bodies or

policy makers that directly effected or ordered someone to effect a constitutional deprivation.348 The majority also rejected the plaintiff’s effort

to analogize inadequate screening to a failure to train.349

The majority insisted on evidence from which a jury could find that,

had Sheriff Moore adequately screened Deputy Burns’ background, he

“should have concluded that Burns’ use of excessive force would be a

plainly obvious consequence of the hiring decision.”350 In the view of the

majority, scrutiny of Burns’ record did not produce sufficient evidence

from which a jury could make such a finding.351

346. Id. at 1393.

347. Id. at 1388.

348. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (county prosecutor

gave order that resulted in constitutional violation); City of Newport v. Fact Concerts,

Inc., 453 U.S. 247 (1981) (decision of city council to cancel license permitting concert

directly violated constitutional rights); Owen v. City of Independence, 445 U.S. 622

(1980) (city council discharged employee without due process). In such 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).

349. Brown, 117 S. Ct. at 1391.

350. Id. at 1392.

351. Id. at 1393. It is somewhat early to predict what impact Brown will have on municipal liability cases. For post-Brown decisions, see, e.g., Allen v. Muskogee, 119 F.3d 837,

845 (10th Cir. 1997) (“The case before us is within the ‘narrow range of circumstances’

recognized by Canton and left intact by Brown, under which a single violation of federal

rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation. The likelihood that officers

will frequently have to deal with armed emotionally upset persons, and the predictability

that officers trained to leave cover, approach, and attempt to disarm such persons will

provoke a violent response, could justify a finding that the City’s failure to properly train

its officers reflected deliberate indifference to the obvious consequence of the City’s
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64

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.”352

Justice Stephen G. 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 calls for a reexamination of “the

legal soundness of that basic distinction itself.”353

Conduct of Policy-Making Officials Attributed to

Governmental Entity

Under Monell, government liability attaches when the constitutional injury results from the implementation or “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.”354 Since Monell, the

Court has struggled with the questions left open by that decision. In subsequent cases, there have been attempts to clarify the important issues of

(1) whose “edicts or acts,” beyond those of the official lawmakers, may be

attributed to the government, and (2) which “edicts or acts” will constitute “policy.”

choice. The likelihood of a violent response to this type of police action also may support

an inference of causation—that the City’s indifference led directly to the very consequence that was so predictable.”); Doe v. Hillsboro Independent School District, 113 F.3d

1412, 1416 (5th Cir. 1997) (en banc) (“When the district court afforded Doe the opportunity to amend his complaint, he could not even allege that the custodian who assaulted

his daughter either had a prior record of violent crime or previously had been reported to

the officials for sexual misbehavior towards students. Even in the context of resisting a

Rule 12 motion to dismiss, plaintiffs have demonstrated an inability to show a nexus between any failure to check criminal background and this assault.”).

352. Brown, 117 S. Ct. at 1396 (Souter, J., joined by Stevens and Breyer, JJ., dissenting).

353. Id. at 1401 (Breyer, J., joined by Stevens and Ginsburg, JJ., dissenting). One of

our authors was among those who first criticized the rejection of respondeat superior

liability in Monell. See Karen M. Blum, From Monroe to Monell: Defining the Scope of

Municipal Liability in Federal Courts, 51 Temple L.Q. 409 (1978), cited in Pembaur v. City

of Cincinnati, 475 U.S. 469, 489 n.4 (1986) (Stevens, J., concurring in part and concurring

in judgment).

354. Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978) (emphasis added).
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65

In Pembaur v. City of Cincinnati,355 a majority of the 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.356 The county prosecutor ordered local law

enforcement officers to “go in and get” two witnesses who were believed

to be inside the clinic of their employer, a doctor who had been indicted

for fraud with respect to 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.357

In holding that the county could be held liable for this single decision

by the county prosecutor who ordered the violation of the plaintiff’s constitutional rights, the Court described the “appropriate circumstances” in

which a single decision by policy makers may give rise to municipal liability. For example, the Court 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.”358 But Monell’s language

encompasses other officials “whose acts or edicts” could constitute official policy.359 Thus, where a government’s authorized decision maker

adopts a particular course of action, the government may be responsible

355. 475 U.S. 469 (1986).

356. Justice White wrote separately to make clear his position (concurred in by Justice

O’Connor) that a decision of a policy-making official could not result in municipal liability if that decision were contrary to controlling federal, state, or local law. Pembaur, 475

U.S. at 485–87 (White, J., concurring). Since the law was not settled at the time of the

county prosecutor’s action in Pembaur, the decision of the policy-making official would

constitute the official policy for Monell purposes.

Justice Powell (joined by Chief Justice Burger and Justice Rehnquist) dissented, criticizing the Court for its focus upon the “status of the decisionmaker” rather than “the

nature of the decision reached . . . and . . . the process by which the decision was reached.”

Id. at 492–502 (Powell, J., dissenting).

357. Id. at 472, 473.

358. 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 canceled license permitting concert because of dispute over content of performance)).

359. Id. (citing Monell, 436 U.S. at 694).
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66

for that policy “whether that action is to be taken only once or to be

taken repeatedly.”360

Justice William J. Brennan, Jr., writing for a plurality in Pembaur, concluded that “[m]unicipal liability attaches only where the decision-maker

possesses final authority to establish municipal policy with respect to the

action ordered.”361 Whether an official possesses policy-making authority

with respect to particular matters will be determined by state law. Policymaking authority may be bestowed by legislative enactment or delegated

by an official possessing such authority under state law.362

In City of St. Louis v. Praprotnik,

363 the Court made another attempt

“to determin[e] when isolated decisions by municipal officials or employees may expose the municipality itself to liability under [section]

1983.”364 Justice O’Connor, writing for a plurality, reinforced the principle articulated in Pembaur that state law will be used to determine policymaking status.365 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.366 The plurality also underscored the

360. Id. at 481.

361. Id.

362. Id. at 483.

363. 485 U.S. 112 (1988).

364. Id. at 113. The Court 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 court of appeals had allowed the plaintiff to attribute 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 higherranking officials. City of St. Louis v. Praprotnik, 798 F.2d 1168, 1173–75 (8th Cir. 1986).

365. Id. at 124.

366. 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, aldermen, and Civil

Service Commission. Id. at 126. See also Dotson v. Chester, 937 F.2d 920 (4th Cir. 1991)

(court examines state law and county code to find Sheriff final policy maker as to operation of county jail).

In Jett v. Dallas Independent School District, 491 U.S. 701 (1989), the Court stressed

that the identification of final policy-making authority is “a legal question to be resolved

by the trial judge before the case is submitted to the jury.” Id. at 737 (emphasis in original). The Court also underscored the “relevant legal materials” to be reviewed by the trial

judge in identifying official policy makers, including “‘custom or usage’ having the force

of law.” Id. (quoting Praprotnik, 485 U.S. at 124 n.1). Once the court has identified the

policy makers in the given area, “it is for the jury to determine whether their decisions

have caused the deprivation of rights at issue by policies which affirmatively command
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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. “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.”367 Finally, the plurality noted that

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.”368

Supervisory Liability

It is important not to confuse the concept of municipal liability for failure to supervise with the concept of supervisory liability. Supervisory liability can be imposed without a determination of municipal liability.

Supervisory liability runs against the individual, is based on his or her

personal responsibility for the constitutional violation, and does not require any proof of official policy or custom as the “moving force” behind

the conduct.

“[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.”369

As with a local government defendant, a supervisor cannot be held liable

under § 1983 on a respondeat superior basis,370 although a supervisory official may be liable even where not directly involved in the constitutional

that it occur . . . or by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local governmental entity.” Jett, 491 U.S.

at 737 (emphasis in original).

367. 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.”).

368. Praprotnik, 485 U.S. at 129–30. See, e.g., Gillette v. Delmore, 979 F.2d 1342, 1348

(9th Cir. 1992) (concluding that mere inaction on part of policy maker “does not amount

to ‘ratification’ under Pembaur and Praprotnik”).

369. Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987).

370. Monell v. Department of Soc. Servs., 436 U.S. 658, 694 n.58 (1978).
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violation.371 The misconduct of the subordinate must be “affirmatively

link[ed]” to the action or inaction of the supervisor.372

Since supervisory liability based on inaction is separate and distinct

from the liability imposed on the subordinate employees for the underlying constitutional violation, the level of culpability that must be alleged

to make out the supervisor’s liability may not be the same as the level of

culpability mandated by the particular constitutional right involved.

While § 1983 itself contains no independent state of mind requirement,373 federal appellate courts consistently require plaintiffs to show

something more than mere negligence, yet less than actual intent in order

to establish supervisory liability.374

A number of circuits use the Supreme Court’s analysis in City of Canton v. Harris375 as an analogy in determining whether a supervisory official is deliberately indifferent to the violation of constitutional rights. In

Shaw v. Stroud,

376 the court held that a three-prong test must be applied

in determining a supervisor’s liability. A 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”

371. Wilks v. Young, 897 F.2d 896, 898 (7th Cir. 1990).

372. Rizzo v. Goode, 423 U.S. 362, 371 (1976).

373. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds,

Daniels v. Williams, 474 U.S. 327 (1986).

374. See, e.g., Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir. 1996) (following

Third Circuit approach, which requires personal direction or actual knowledge for supervisory liability); Baker v. Monroe Township, 50 F.3d 1186, 1194 & n.5 (3d Cir. 1995) (applying Third Circuit standard, which requires “actual knowledge and acquiescence” and

noting that other circuits have broader standards for supervisory liability); Howard v.

Adkison, 887 F.2d 134, 138 (8th Cir. 1989) (holding that evidence was sufficient to allow

the jury to find supervisors’ inaction amounted to reckless disregard of constitutional

violations); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989) (stating

that supervisor’s conduct or inaction must be shown to amount to a reckless or callous

indifference to the constitutional rights of others).

375. 489 U.S. 378 (1989).

376. 13 F.3d 791 (4th Cir. 1994).
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between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.377

Although the courts do not differ significantly as to the level of culpability required for supervisory liability, there is some split on the question

of 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 violations must be

shown.378

377. Id. at 798 (quoting Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990)), cert. denied, 513 U.S. 814 (1994); see also Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 453 (5th

Cir. 1994) (en banc) (“The most significant difference between City of Canton and this

case is that the former dealt with a municipality’s liability whereas the latter deals with an

individual supervisor’s liability. The legal elements of an individual’s supervisory liability

and a political subdivision’s liability, however, are similar enough that the same standards

of fault and causation should govern.”), cert. denied sub nom. Lankford v. Doe, 115 S. Ct.

70 (1994); Greason v. Kemp, 891 F.2d 829, 836–37 (11th Cir. 1990) (finding City of Canton analysis a helpful analogy in determining whether a supervisory official was deliberately indifferent to an inmate’s psychiatric needs).

378. 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.”) 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 omissions were the product of reckless or callous

indifference to his constitutional rights and that they, in fact, caused his constitutional

deprivations.”).

71

Chapter 6

Absolute Immunity:

A Functional Approach

If the challenged action by a state official is a judicial, quasi-judicial,

prosecutorial, or legislative function, absolute immunity shields the official from having to pay damages for the alleged constitutional violation.

As an affirmative defense, absolute immunity applies only when a governmental official performs one of these functions. The immunity does

not attach to the office, but rather to certain functions performed by the

official. With respect to legislative acts, absolute immunity bars both injunctive and monetary relief; with respect to judicial acts, Congress

amended § 1983 to prohibit injunctive relief unless “declaratory relief

was violated” or unavailable. Except for these circumstances, absolute

immunity does not bar injunctive relief. This potent defense applies even

when officials maliciously violated a plaintiff’s constitutional rights.379

Although the statute on its face does not refer to any immunity, the

Supreme Court has recognized both absolute and qualified immunity as

a defense by ascertaining Congress’s intent to provide immunities. In

doing so, the Court has stated that “[m]ost officials are entitled only to

qualified immunity.”380 It has limited application of the absolute immunity defense by applying a two-part standard. First, the Court considers

whether the common law recognized an immunity. Second, if it did, then

the Court questions whether the history or purpose of § 1983 supports

applying the common-law immunity. Even if Congress intended absolute

immunity to apply to a given function, courts must nevertheless question

379. See, e.g., Pierson v. Ray, 386 U.S. 547, 553–54 (1967).

380. Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2613 (1993).
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whether the challenged action was legislative, judicial, quasi-judicial, or

prosecutorial.

Legislative Functions

When officials perform legislative functions, they receive the broadest

relief available under § 1983 because, in this unique context, absolute

immunity bars both injunctive relief and damage awards. In Tenny v.

Brandhove,

381 the Supreme Court held that state legislators performed

protected legislative functions when they served on investigative committees.382 The Court explained, “Investigations, whether by standing or

special committees, are an established part of representative government.”383 Unable and unwilling to saddle legislators with liability for this

investigative function, the Court found that the legislators’ self-discipline

and the voters’ ability not to reelect legislators were adequate checks on

abuse of legislative power.

Other officials can also perform legislative acts. In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (TRPA),384 the Court determined that the TRPA’s decision regarding land use was a legislative

act. TRPA was an agency created by the states of California and Nevada,

with the approval of Congress, with the agency’s purpose being to create

a regional plan for “land use, transportation, conservation, recreation,

and public services.” 385 The Court held that absolute immunity applied,

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.

The most difficult issue in determining whether absolute immunity

applies is whether the challenged action was legislative, rather than administrative or executive.386 In Supreme Court of Virginia v. Consumers

Union of the United States,

387 the Court determined that the justices of

381. 341 U.S. 367, 379 (1951).

382. Id. at 379.

383. Id. at 377.

384. 440 U.S. 391 (1979).

385. Id. at 394.

386. See, e.g., Yeldell v. Cooper Green Hosp., 956 F.2d 1056, 1063 (11th Cir. 1992)

(decision not to introduce legislation was a legislative act); Cinevision Corp. v. City of

Burbank, 745 F.2d 560 (9th Cir. 1984), cert. denied, 471 U.S. 1054 (1985) (administering

municipal contracts was an executive function).

387. 446 U.S. 719, 731–34 (1980).
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the Virginia Supreme Court had performed a legislative act in promulgating professional responsibility rules for attorneys.388 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.389 By focusing on the action

performed, not the job description of the actor, the Court emphasized

the functional nature of absolute immunity.

In Bogan v. Scott-Harris,

390 the Supreme Court held that local legislators are entitled to absolute immunity for their legislative activities.391

The Court unanimously decided to extend 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 had complained about racial epithets in the workplace.

Judicial Acts

Judicial acts are also protected by absolute immunity. In several decisions, the Supreme Court has broadly defined judicial actions.

In Pierson v. Ray,

392 the Court held that the judicial functions of determining guilt and sentencing a criminal defendant are protected by absolute immunity.393 Such immunity is proper for two reasons: the common law of 1871 supported immunity, and the policy behind § 1983 was

not to deter judges from performing their jobs:

[I]mmunity 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 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

388. Id. at 731–34.

389. Id. at 734.

390. 118 S. Ct. 966 (1998).

391. Id. at 972.

392. 386 U.S. 547 (1967).

393. Id. at 554–55.
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or corruption. Imposing such a burden on judges would contribute not

to principled and fearless decision-making but to intimidation.394

In short, absolute immunity is necessary to protect the judicial system.

The remedy for judicial errors is an appeal, not a § 1983 lawsuit for damages.

Subsequently the Court had to define the boundaries of “judicial” actions. In Stump v. Sparkman,

395 the Court held that Judge Harold D.

Stump had performed a judicial act when he ordered a mentally retarded

girl to undergo a tubal ligation at the request of her mother.396 The Court

explained that absolute immunity applies to actions taken by judges “in

excess of [their] authority,” but not in the “clear absence of all jurisdiction.”397 To distinguish between these two standards, the Court provided

an example: If a probate judge who has jurisdiction only over wills nevertheless tries a criminal case, then the judge has acted in the “clear absence of jurisdiction.” On the other hand, if a judge with jurisdiction over

criminal matters convicts a defendant of a nonexistent crime, then the

judge has performed a “judicial act” in “excess of his jurisdiction.”398

Furthermore, an action can be judicial even if it lacks the formality

often associated with court proceedings. In determining whether an act is

judicial, the question is whether the action is one normally performed by

a judge. For example, 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,

399 the Court held that a judge

had performed a judicial act in ordering a bailiff to use excessive force to

compel an attorney to attend court proceedings.400 Even though judges

do not have the authority to order police officers to commit a battery,

they nevertheless have broad authority to maintain court proceedings.

394. Id. at 553–54.

395. 435 U.S. 349, 364 (1978).

396. Id. at 364.

397. Id. at 356–57.

398. Id. at 357 n.7.

399. 502 U.S. 9 (1991).

400. Id. at 13.
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Distinguishing Judicial and Quasi-Judicial

Functions from Administrative Acts

Not all actions by judges may be protected by absolute immunity. Administrative functions are protected only by qualified immunity. In

Forrester v. White,

401 the Supreme Court held that when a judge fired a

probation officer, he performed an administrative act, protected only by

qualified immunity.402 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. The Court also noted that because judges are less able to

delegate decision making there is less reason to afford them absolute immunity in contrast to other officials.

Because of the functional nature of absolute immunity, many officials

have attempted to assert absolute immunity for quasi-judicial functions.

Although the Court rejected a court reporter’s claim for absolute immunity for her failure to timely produce a transcript for an appeal,403 the

Court granted absolute immunity for decisions made by a judge at an

administrative hearing.404 In contrast, both prison officials and school

board members may assert only qualified immunity for their decisions to

punish. The Court in Cleavinger v. Saxner405 held that a committee of

prison officials did not perform a judicial act in deciding to discipline a

prisoner after a hearing.406 Noting that the committee members were not

administrative law judges, the Court characterized them as employees

“temporarily diverted from their usual duties.” Similarly in Wood v.

Strickland,

407 the Court held that absolute immunity was not necessary to

protect school board members’ ability to exercise discretion in deciding

how to discipline students.408

401. 484 U.S. 219 (1988).

402. Id. at 230.

403. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 437 (1993).

404. Butz v. Economou, 438 U.S. 478, 508 (1978).

405. 474 U.S. 193 (1985).

406. Id. at 207–08.

407. 420 U.S. 308 (1975).

408. Id. at 320.
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76

Prosecutorial Functions vs. Investigative Acts

The Supreme Court has similarly accorded prosecutors absolute immunity for acts intertwined with judicial proceedings, and rejected absolute

immunity for administrative and investigative acts. In several decisions

the Court has defined a protected “prosecutorial” act.

In Imbler v. Pachtman,

409 the Court held that absolute immunity applied to a prosecutor’s action in “initiating a prosecution and in presenting the State’s case.”410 Protected by this immunity was the alleged

knowing use of false testimony at trial and the alleged deliberate suppression of exculpatory evidence. The Court granted absolute immunity by

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, immunity properly

shields prosecutors from suits by disgruntled criminal defendants and

protects their ability to act decisively, and thus does not undermine the

goals of § 1983. The Court also stated that qualified immunity would not

adequately protect prosecutors. The remedies of professional selfdiscipline and the criminal law411 serve as checks to the broad discretion

of prosecutors.

In Burns v. Reed,

412 the challenged actions included both investigative

and prosecutorial acts: (1) the prosecutor’s legal advice to police officers

about the use of hypnosis as an investigative tool and the existence of

probable cause to arrest the plaintiff; and (2) the prosecutor’s misleading

presentation of a police officer’s testimony at a probable-cause hearing

for the issuance of a search warrant.413 The Supreme Court held that the

prosecutor had absolute immunity for his participation at the probablecause hearing414 but only qualified immunity for his legal advice to the

police.415

409. 424 U.S. 409 (1976).

410. Id. at 431.

411. Id. at 430–31.

412. 500 U.S. 478 (1991).

413. Id. at 487.

414. Id. at 492.

415. Id. at 496.
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77

Absolute immunity is necessary only when there is “interference with

. . . conduct closely related to the judicial process.”416 Whereas at the

hearing the prosecutor acted as an “advocate for the State”417 and his appearance was “intimately associated with the judicial phase of the criminal process,”418 “advising the police in the investigative phase” was not

sufficiently close to the judicial process.419 Moreover, 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.”420

The Supreme Court reiterated the need to link the challenged action

to the judicial process in Buckley v. Fitzsimmons.

421 It held that the prosecutor did not have absolute immunity for two challenged actions: conspiring “to manufacture false evidence that would link [the plaintiff’s]

boot with the boot print the murderer left on the front door” and conducting a press conference defaming the plaintiff shortly before the defendant’s election and the grand jury’s indictment of the plaintiff.422 In

neither instance did the prosecutor act as an “advocate” for the state.423

The Buckley Court attempted to create a bright line for distinguishing

prosecutorial acts from investigative acts: “A prosecutor neither is, nor

should consider himself to be, an advocate before he has probable cause

to have anyone arrested.”424 The Court limited this rule by stating that

the presence or absence of probable cause is not dispositive of the issue of

absolute immunity; even after a prosecutor has probable cause, he may

perform investigative work protected only by qualified immunity.425 Under the facts of the case, the prosecutor did not have probable cause before he allegedly manufactured false evidence, and thus was not entitled

to absolute immunity. With respect to the second claim, a press conference, even if an important part of a prosecutor’s job, is not functionally

tied to the judicial process.

416. Id. at 494.

417. Id. at 491.

418. Id. at 492.

419. Id. at 493.

420. Id. at 495.

421. 113 S. Ct. 2606, 2614–15 (1993).

422. Id. at 2615.

423. Id. at 2617–18.

424. Id. at 2616.

425. Id. at 2616 n.5.
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In Kalina v. Fletcher,

426 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 with

the court. The Court held that the prosecutor had absolute immunity for

filing two unsworn pleadings—an information and a motion for an arrest warrant—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.” Traditionally, police officers and complaining

witnesses perform the latter function when they personally attest to the

truthfulness of statements in support of a warrant. The Court refused to

extend absolute immunity to this act because it interpreted the common

law as not providing this type of broad immunity.

Other Official Acts Protected by Absolute

Immunity

In addition to legislative, judicial, and prosecutorial functions, the Supreme Court has recognized that police officers testifying during a trial

also merit absolute immunity. 427 Testifying is an act inextricably intertwined with the judicial process.

Although the Court has repeatedly stated that absolute immunity does

not apply to an office but rather to the function performed, in Nixon v.

Fitzgerald428 the Court held that official acts by a President are protected

by absolute immunity.429 It held that, in this Bivens action,430 President

Nixon had absolute immunity for the firing of an employee.431

426. 118 S. Ct. 502 (1997).

427. Briscoe v. LaHue, 460 U.S. 325, 344–49 (1983).

428. 457 U.S. 731 (1982).

429. The immunity is a “functionally mandated incident of the President’s unique

office, rooted in the constitutional tradition of the separation of powers and supported by

our history.” Id. at 749.

430. A Bivens action is one filed against a federal official for an alleged constitutional

violation. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

431. In contrast, in Clinton v. Jones, 117 S. Ct. 1636, 1639 (1997), the Court rejected

President Clinton’s unique request for a deferral of his trial and discovery, a request that

did not assert absolute immunity, but rather used the policy of absolute immunity to

argue for postponement. The Court held that it would not defer discovery and a trial for

alleged sexual harassment that occurred before Clinton became President.
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79

The Court has rejected applying absolute immunity in other circumstances: a public defender’s conspiracy with a state judge432 and a governor’s decision to deploy the National Guard at Kent State University.433

In sum, application of the absolute immunity defense depends on the

need to safeguard the judicial and legislative processes. When rejecting

absolute immunity as a defense for administrative and investigative actions, the Court has often stated that these actions will be adequately

protected by the defense of qualified immunity, which is at the heart of

most § 1983 litigation.

432. Dennis v. Sparks, 449 U.S. 24 (1980).

433. Scheuer v. Rhodes, 416 U.S. 232 (1974).

81

Chapter 7

Qualified Immunity

from Damages

The affirmative defense of qualified immunity may provide officials434

with two types of protection. First, it functions as a defense to liability

when the actions allegedly taken by officials did not violate “clearly established” law.435 If the law was not clearly established when officials

acted, qualified immunity bars an award of damages, but it does not preclude the granting of injunctive relief.436 Second, qualified immunity may

provide officials with an “immunity from suit”437 by relieving them from

the burdens both of discovery and a trial.

The seminal decision of Harlow v. Fitzgerald438 and its progeny provide guidance in determining the clarity of the law. Procedural motions

under the Federal Rules of Civil Procedure protect officials’ immunity

from suit.

434. When plaintiffs sue “private” individuals, qualified immunity may not be a defense: private prison guards, who had limited supervision by the government, did not

have qualified immunity for their actions in restraining a prisoner, Richardson v.

McKnight, 117 S. Ct. 2100, 2109 (1997); a private creditor, who invoked unconstitutional

state “replevin, garnishment, and attachment statutes” with the aid of state officials, did

not have qualified immunity, Wyatt v. Cole, 504 U.S. 158, 159 (1992). In these cases, however, the Court did not decide whether these private defendants acted under color of law,

the first element for a prima facie § 1983 lawsuit.

435. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

436. Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).

437. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

438. 457 U.S. 800 (1982).
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Defense to Liability

In Harlow, the Supreme Court held that “governmental officials performing discretionary function[s] generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known.”439 The purpose of this objective standard was to resolve

insubstantial claims prior to discovery. The Harlow Court significantly

modified the prior standard by holding that subjective bad faith was no

longer relevant to the qualified immunity defense. Eliminating the factual

issue of subjective good faith would facilitate resolution of this defense

prior to discovery.

In establishing the objective standard for qualified immunity, the

Court weighed the plaintiffs’ interests in having their constitutional

rights vindicated against the public’s need for governmental officials to

perform their duties. Requiring officials to act in subjective good faith

had resulted in their incurring the burdens of discovery and litigation for

suits that were clearly unmeritorious. An objective standard, the Court

declared, is in the public’s interest because it appropriately safeguards the

officials’ decision-making processes and allows officials more time for

public service.

When applying the objective qualified immunity standard to § 1983

claims, courts are to resolve two issues: (1) Has the plaintiff stated a violation of a constitutional or federal statutory right?;440 and (2) If so, was

that right clearly established, i.e., were the “contours of the right . . . sufficiently clear that a reasonable official would understand that what [he or

she] is doing violates that right”?441 Resolution of the latter issue depends

on the degree of correspondence between the facts of the case under consideration and the facts from prior cases decided at the time the official

acted. If there is a close correspondence, then the officials would not receive qualified immunity because the case law would have put the official

on notice that his or her conduct was clearly unconstitutional.

439. Id. at 818. It also created a limited exception for officials who could prove that

they neither knew nor should have known of the clearly established right. Id. In practice,

litigation has focused on the standard; rarely has the exception applied.

440. Siegert v. Gilley, 500 U.S. 226, 232 (1991).

441. Anderson v. Creighton, 483 U.S. 635, 640 (1987).
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83

A decision by the Supreme Court is not necessary to establish this notice.442 However, conflict among the courts of appeals may indicate that

the law was not “clearly established.”443

“Clearly Established Law” as Applied to

Fourth Amendment Claims

In Malley v. Briggs444 and Anderson v. Creighton,

445 the Supreme Court

addressed Fourth Amendment claims and explained that “clearly established” law does not refer to general principles of law. In these decisions,

the Court stated that qualified immunity applies if a reasonable officer

under the same circumstances could not have known his or her conduct

was illegal. This is a question of law for the courts to decide.446

In Malley, the Court held that police officers acting pursuant to an

invalid arrest warrant may nevertheless assert the defense of qualified

immunity.447 The Court recognized two standards of reasonableness:

conduct unreasonable under the Fourth Amendment could still be objectively reasonable for the purpose of qualified immunity.448 It noted

that it had similarly recognized two standards of reasonableness when

creating the objective good-faith exception to the exclusionary rule.449

Under that exception, even if officers got evidence by committing an unreasonable search or seizure, in violation of the Fourth Amendment, the

evidence could nevertheless be used in the case-in-chief if they acted in

“objective” good faith. This objective good faith 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.450

442. United States v. Lanier, 117 S. Ct. 1219, 1226 (1997).

443. Id. at 1226–27.

444. 475 U.S. 335 (1986).

445. 483 U.S. 635 (1987).

446. Elder v. Holloway, 510 U.S. 510, 516 (1994) (remanding and holding that the

court of appeals must consider (de novo on appeal) relevant case law in resolving question of whether an asserted federal right was “clearly established”).

447. Malley v. Briggs, 475 U.S. 335, 343–46 (1986).

448. Id. at 344–45.

449. Id. at 344 (citing United States v. Leon, 468 U.S. 897 (1984) (objective reasonableness is the standard for a search done pursuant to an invalid warrant)).

450. United States v. Leon, 468 U.S. 897 (1984).
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The Anderson Court affirmed this dual standard of reasonableness451

as it addressed whether police officers could assert qualified immunity for

a warrantless search of the plaintiff’s home. The Court conceded that the

general principles of Fourth Amendment law are clear: a warrantless

search of an individual’s home, absent probable cause and exigent circumstances, is unreasonable. The Court explained, however, that these

general principles did not determine whether the officers had immunity.

Whether the officers violated “clearly established” law requires consideration of the “contours of a [constitutional] right.”452 The proper inquiry is whether the contours of the right were “sufficiently clear that a

reasonable official would understand that what he [did] violate[d] that

right.”453

The Anderson Court gave little guidance as to how to assess the “contours” of a right. It stated that a police officer may “reasonably, but mistakenly, conclude that probable cause is present.”454 Similarly, a police

officer may reasonably but mistakenly conclude that exigent circumstances exist. If there is a “legitimate question” as to the unlawfulness of

the conduct, qualified immunity applies.455 The decision further states,

“[T]he very action in question, however, [need not have] been previously

held unlawful,” but if “in light of preexisting law the unlawfulness [was]

apparent,” then qualified immunity does not apply.456

Immunity from Discovery and Trial

In addition to being a defense to liability, qualified immunity may also

shield officials both from discovery and a trial. Determining when offi451. Anderson v. Creighton, 483 U.S. 635, 636–41 (1986).

452. Id. at 640.

453. Id. The Supreme Court adhered to this approach in its later per curiam decision

in Hunter v. Bryant, 112 S. Ct. 534 (1992). In Hunter, 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 537. See generally McCleary v. Navarro, 504 U.S. 966, 967 (1992) (White, J., dissenting from the denial of certiorari, joined by Chief Justice Rehnquist and Justices

O’Connor and Thomas) (stating that the appropriate qualified immunity question is

whether “a reasonable officer could have thought that he had acted in accordance with the

Constitution, and not whether an officer would have acted otherwise”).

454. Anderson, 483 U.S. at 641.

455. Id.

456. Id.
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cials may properly invoke this immunity from suit requires courts to interpret the Federal Rules of Civil Procedure in light of the qualified immunity defense. In several decisions, the Supreme Court has offered procedural guidance.

Motion to Dismiss

In the typical motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court

assumes that the plaintiff’s allegations are true and determines whether

these allegations state a violation of a constitutional or federal statutory

right. If they do not, then the court dismisses the claim.

Many courts also consider motions to dismiss under Rule 12(b)(6)

when officials raise qualified immunity as a defense.457 The difficulty of

considering qualified immunity at this time in the lawsuit is that qualified

immunity is an affirmative defense,458 and Fed. R. Civ. P. 8(c) requires

affirmative defenses such as qualified immunity to be raised in an answer.

The Court recently stated: “We refused to change the Federal Rules governing pleading by requiring the plaintiff to anticipate the immunity defense.”459

The Supreme Court implied that some of the Federal Rules of Civil

Procedure provide officials with the opportunity to gather information

about a plaintiff’s case, making a “heightened pleading” standard unnecessary. (Under that standard,460 plaintiffs had to plead with particularity,

even though the Federal Rules of Civil Procedure only require notice

457. See, e.g., Fortner v. Thomas, 983 F.2d 1111, 1114–15 (3d Cir. 1988); but see Triad

Assocs., Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993).

458. Gomez v. Toledo, 446 U.S. 635 (1980).

459. Crawford-El v. Britton, 523 U.S. —, 118 S. Ct. 1584, 1595 (1998) (citing with

approval Gomez v. Toledo, 446 U.S. 635, 639–40 (1980)). The Court also expressed its

reluctance to legislate pleading requirements: “our cases demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process”). Id.

460. See, e.g., Siegert v. Gilley, 500 U.S. 226, 235 (1991) (Kennedy, J., concurring)

(stating that “[t]he heightened pleading standard is a necessary and appropriate accommodation between the state of mind component of malice and the objective test that prevails in qualified immunity analysis as a general matter”); Branch v. Tunnel, 14 F.3d 449,

457 (9th Cir. 1994), cert. denied, 114 S. Ct. 2704 (1995) (court is not free to revisit the

issue of heightened pleading because the decision in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160 (1993), specifically left the issue

open); but see Triad Assocs., Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993) (heightened

pleading does not apply when there is a motion to dismiss).
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pleading.) First, Fed. R. Civ. P. 7(a) gives district courts discretion to order a reply to an official’s answer, which properly raises qualified immunity as an affirmative defense. 461 Second, Fed. R. Civ. P. 12(e) allows officials to move for a “more definite statement.”462 Both of these rules accomplish the goal of a heightened pleading standard because the granting

of the motions requires plaintiffs to “‘put forward specific, nonconclusory factual allegations’ . . . to survive a prediscovery motion for dismissal

or summary judgment.”463 Thus, even when the underlying constitutional claim requires proof of an official’s intent, these rules adequately

safeguard an official’s immunity from unnecessary discovery.464

In motions under Rule 12(b)(6), courts have decided two issues:

whether the allegations state a claim and whether the law was “clearly

established,” an issue arising from the qualified immunity affirmative

defense. According to the Supreme Court, when motions properly raise

the qualified immunity defense, courts are to first decide whether the

plaintiff has stated a claim before addressing the “clearly established” law

question.465 In practice, both the Supreme Court466 and lower courts467

461. Crawford-El, 118 S. Ct. at 1596. The Fifth Circuit had previously recognized how

Fed. R. Civ. P. 7 eliminates the need for a “heightened pleading” standard:

First, the district court must insist that a plaintiff suing a public official under § 1983 file

a short and plain statement of his complaint, a statement that rests on more than conclusions alone. Second, the court may, in its discretion, insist that a plaintiff file a reply

tailored to an answer pleading the defense of qualified immunity. Vindicating the immunity doctrine will ordinarily require such a reply, and a district court’s discretion not

to do so is narrow. . . . The district court may ban discovery at this threshold pleading

stage and may limit any necessary discovery to the defense of qualified immunity. The

district court need not allow any discovery unless it finds that plaintiff has supported his

claim with sufficient precision and factual specificity to raise a genuine issue as to the illegality of defendant’s conduct at the time of the alleged acts. Even if such limited discovery is allowed, at its end, the court can again determine whether the case can proceed

and consider any motions of summary judgment under Rule 56.

Schultea v. Wood, 47 F.3d 1427, 1433–34 (5th Cir. 1995) (en banc).

462. Crawford-El, 118 S. Ct. at 1596.

463. Id. at 1596–97 (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J.,

concurring in judgment)).

464. Id. at 1596.

465. Siegert v. Gilley, 500 U.S. 226, 232 (1991); accord County of Sacramento v. Lewis,

523 U.S. —, 118 S. Ct. 1708, 1714 n.5 (1998). In County of Sacramento, the Supreme

Court stated in a footnote: “the first step is to identify the exact contours of the underlying right said to have been violated.” Id. It explained that if courts were instead to assume

a constitutional violation and address the second step, whether the law was sufficiently

clear to put officials on notice that their actions were unconstitutional, “standards of official conduct would tend to remain uncertain, to the detriment both of officials and indi-
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have often not addressed the first issue. Instead they have simply assumed

a violation when deciding the clarity of the law issue.

Motions for Summary Judgment Before and After

Discovery

The Supreme Court’s purpose in creating an objective standard of reasonableness to evaluate qualified immunity was to resolve insubstantial

claims prior to discovery.468 Officials may raise the qualified immunity

defense in summary judgment motions under Federal Rule of Civil Procedure 56(c)469 both before470 and after discovery.471 Under Rule 56(c),

summary judgment is permitted if there are no disputed material facts

and the person is entitled to judgment as a matter of law.

Summary judgment motions before discovery are possible because the

qualified immunity defense is not only a defense to liability but also an

“immunity from suit” in some circumstances.472 Under Harlow, discovery is not to occur if the plaintiff has not alleged a violation of clearly established law.473

If, however, the plaintiff has alleged a violation of clearly established

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.474 Even when the underlying constitutional claim

sued on requires a plaintiff to prove an official’s intent, courts are not to

viduals.” Id. The Court twice stated that its two-step process is “the better approach.” Id.

466. See, e.g., Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam) (granting qualified

immunity after assuming officers violated the Constitution).

467. See, e.g., DiMeglio v. Haines, 45 F.3d 790, 795–99 (4th Cir. 1995) (stating that

Siegert does not compel courts to first decide whether plaintiff has stated a claim); but see

Manzano v. South Dakota Dep’t of Soc. Servs., 60 F.3d 505, 510 n.2 (8th Cir. 1995) (stating that Eighth Circuit has consistently adhered to Siegert’s requirement to first address

whether plaintiff stated a claim).

468. Harlow v. Fitzgerald, 457 U.S. 800, 815–16 (1982).

469. Fed. R. Civ. P. 56(c).

470. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987); Harlow v. Fitzgerald, 457

U.S. 800, 818–19 (1982).

471. Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996).

472. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (plurality opinion).

473. Harlow, 457 U.S. at 818.

474. Anderson, 483 U.S. at 646 n.6.
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impose a “heightened standard of proof.”475 Instead, they are to tailor

discovery by using procedures provided in Fed. R. Civ. P. 26.476

Under Rule 26, district courts may limit the number of depositions

and interrogatories, the length of depositions, the “time, place, and manner of discovery,”477 and the sequence of discovery. In addition, district

courts may 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.”478 In contrast, Fed. R. Civ. P. 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.”479

In addition, district courts safeguard officials’ right to be free from

frivolous lawsuits by imposing sanctions under Fed. R. Civ. P. 11 or

granting dismissal under 28 U.S.C. § 1915(e)(2), a statute permitting

dismissal of “frivolous or malicious” in forma pauperis suits.480 In short,

district courts have “broad discretion in the management of the factfinding process.”481

After discovery has occurred, officials may raise a second summary

judgment motion. In Mitchell v. Forsyth,

482 the Court explained that if

the complaint alleged a violation of “clearly established law” and “discovery fail[ed] to uncover evidence that the defendant in fact committed

those acts,” the defendant is entitled to qualified immunity.483 In many

situations, however, material facts are disputed.

Summary judgment would nevertheless be possible if, interpreting the

facts in the light most favorable to the plaintiff, the court determines that

the alleged facts do not state a violation of clearly established law.484 In

475. Crawford-El v. Britton, 523 U.S. —, 118 S. Ct. 1584, 1595 (1998).

476. Id. at 1597.

477. Id.

478. Id.

479. Id. at n.20.

480. Id. at 1598 (quoting 28 U.S.C. § 1915(e)(2) (Supp. 1998)).

481. Id.

482. 472 U.S. 511 (1985).

483. Id. at 526.

484. Anderson, 483 U.S. at 646 n.6.
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89

this situation, the immunity defense relieves officials from the burdens of

trial, protecting their “immunity from suit.”485 If, however, the facts as

interpreted in the light most favorable to the plaintiff indicate a violation

of clearly established law, and the discovery indicates material facts are in

dispute, then summary judgment is not possible. At this point, the “immunity from suit” is properly lost and the case must go to trial.

Role of the Judge and Jury

Once courts properly deny summary judgment because material facts are

in dispute, it is for the jury to determine the facts and for the court to

determine whether the law was “clearly established” when the official

acted. In Hunter v. Bryant,

486 the Court held that “[i]mmunity ordinarily

should be decided by the court long before trial.”487 It criticized the lower

court for “routinely” placing the issue of immunity “in the hands of the

jury.”488

To resolve the legal question of whether the law was clearly established, some courts489 have used special verdicts under Rule 49(a) to have

a jury resolve the factual dispute.490 After the jury makes its findings, a

court can then determine the clarity of the law at the time the official

acted.491 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.492 Resolution is possible during these trial stages if

the defendant is entitled to judgment as a matter of law.

485. Mitchell, 472 U.S. at 526.

486. 502 U.S. 224 (1991).

487. Id. at 228.

488. Id.

489. See, e.g., Mahoney v. Kesery, 976 F.2d 1054, 1058 (7th Cir. 1992); Floyd v. Laws,

929 F.2d 1390 (9th Cir. 1991).

490. Fed. R. Civ. P. 49(a).

491. See, e.g., Warren v. Dwyer, 906 F.2d 1339, 1348 (11th Cir. 1991), cert. denied, 111

S. Ct. 431 (1990).

492. See, e.g., Warlick v. Cross, 969 F.2d 303, 308 (7th Cir. 1992).
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Interlocutory Appeals

Jurisdiction under 28 U.S.C. § 1291

When a district court denies an official’s motion for qualified immunity,

the official, in some circumstances, may take an interlocutory appeal.493

The jurisdictional basis for this appeal is 28 U.S.C. § 1291,494 a statute

that creates a procedural right to an interlocutory appeal from a “final”

decision.495 Whether an appeal is proper depends on whether the district

court’s order is a “final” decision within the meaning of § 1291.

Generally, an order is a “final” decision if the district court denied

qualified immunity by determining that the law was “clearly established”

at the time the official acted;496 it is not final if the district court only determined that the plaintiff had offered sufficient evidence to avoid summary judgment in favor of the official.497 Because the Supreme Court has

stated that appellate courts may not create a rule limiting officials to one

interlocutory appeal, appellate courts must decide whether a particular

order is a final decision.498

Determining finality requires courts to examine the “immunity from

suit” aspect of Harlow and the collateral order doctrine, a judicially created doctrine interpreting what finality means in § 1291.499 In Mitchell, a

plurality of the Court interpreted Harlow as establishing an “immunity

from suit” because it held that discovery should not proceed until the

plaintiff has alleged a violation of clearly established law. In short, not

only was qualified immunity a defense to liability, it was an immunity

from unnecessary discovery and trials.

When a district court denies an official’s claim to qualified immunity,

it may be erroneously subjecting the official either to the burden of discovery or a trial. Mitchell stated that a district court’s determination that

493. An official may also seek interlocutory review from orders denying absolute immunity. Mitchell v. Forsyth, 472 U.S. 511, 528–30 (1985).

494. 28 U.S.C. § 1291 (1993). Section 1291 provides in part: “The courts of appeal . . .

shall have jurisdiction of appeals from all final decisions of the district courts of the

United States. . . .”

495. Johnson v. Fankell, 117 S. Ct. 1800, 1804 (1997).

496. Behrens v. Pelletier, 116 S. Ct. 834, 842 (1996); Mitchell v. Forsyth, 472 U.S. 511,

530–35 (1985).

497. Johnson v. Jones, 115 S. Ct. 2151, 2159 (1995).

498. Behrens, 116 S. Ct. at 840.

499. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
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91

the law was clearly established is a final order because it satisfies all three

elements of the collateral order doctrine: (1) the order “conclusively determine[s] the disputed question”; (2) the order “resolve[s] an important

issue completely separate from the merits of the action”; and (3) the order would be effectively “unreviewable from a final judgment.”500

Thus, if an appellate court were to reverse the district court’s order

that the law was clearly established, the official would have immunity

from this claim. (Qualified immunity protects officials as long as they did

not violate clearly established law.) The appellate court would have conclusively resolved an important issue that was separate from the merits.

Without this appellate review, the official’s “immunity from suit” claim

would be “unreviewable.”

In contrast, the Court in Johnson v. Jones501 held that an appellate

court lacks jurisdiction to review the single issue whether the district

court erred in determining that there are material facts in dispute. 502

Such an order is not appealable because it is not separate from the merits,

the second requirement of the collateral order doctrine. The Supreme

Court recognized three policy reasons for not reviewing these orders:503

(1) district courts have expertise in determining whether there are material disputed facts; (2) appellate courts might revisit the issue in a later

appeal; and (3) appeals of this type of order may cause unnecessary delay.

An order, however, that raises both issues—the clarity of the law and

whether material facts are disputed—may be appealable. In Behrens v.

Pelletier,

504 the Supreme Court explained how appellate courts are to review this type of interlocutory order: “Johnson permits [an official] to

claim on appeal that all of the conduct which the District Court deemed

sufficiently supported for purposes of summary judgment met the Harlow standard of ‘objective legal reasonableness.’” 505 Thus, if the district

court determined that material facts were in dispute and decided that the

law was clearly established, an appellate court is to examine the clarity of

500. Id. at 525–27. The collateral order doctrine has its origins in Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949).

501. 515 U.S. —, 115 S. Ct. 2151 (1995).

502. Id. at 2159.

503. Id. at 2158.

504. 116 S. Ct. 834 (1996).

505. Id. at 842 (quoting Johnson, 115 S. Ct. at 2159).
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law issue, an issue for which it has jurisdiction under the collateral order

doctrine, by using the district court’s assumed facts.

If the district court “did not identify the particular charged conduct

that it deemed adequately supported,”506 then the appellate court “may

have to undertake a cumbersome review of the record to determine what

facts the district court, in the light most favorable to the nonmoving

party, likely assumed.”507 Such a review thus requires the courts to review

depositions and other evidence raised in response to a summary judgment motion.

Other jurisdictional questions for interlocutory appeals

When officials seek interlocutory appeals, district courts and appellate

courts may encounter important related jurisdictional issues: jurisdiction

when appeals are frivolous and jurisdiction under the doctrine of pendent appellate jurisdiction.

Under the traditional divestiture rule, once an official files a timely

notice of appeal, a district court loses jurisdiction.508 However, a district

court may retain jurisdiction after denying an official’s motions for

summary judgment raising qualified immunity if it certifies the appeal as

frivolous.509 After writing an order explaining how the appeal is frivolous,510 the district court may proceed with the lawsuit. Nevertheless, the

appellate court also has jurisdiction to determine whether it has jurisdiction after the district court has declared the appeal to be frivolous.511 This

“dual jurisdiction”—in the district court and the appellate court—is

similar to the dual jurisdiction present when criminal defendants seek

interlocutory appeals from orders denying their motions raising the Fifth

Amendment protection from double jeopardy.512 In both situations, district courts may proceed.

506. Id.

507. Id. (quoting Johnson, 115 S. Ct. at 2159).

508. See, e.g., United States v. LaMere, 951 F.2d 1106, 1107 (9th Cir. 1991).

509. The Supreme Court explicitly approved of this practice in Behrens, 116 S. Ct. at

841. Courts of appeals have supervisory powers to “establish summary procedures . . . to

weed out frivolous claims.” Id.

510. See generally United States v. Kress, 58 F.3d 370, 372 (8th Cir. 1995) (stating that

after a criminal defendant files an interlocutory appeal from an order denying his motion

based on the Fifth Amendment double jeopardy clause, district court may retain jurisdiction by writing an order explaining why appeal is frivolous).

511. See, e.g., Dickerson v. McClellan, 37 F.3d 251, 252 (6th Cir. 1994).

512. Behrens, 116 S. Ct. at 841.
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93

Another common jurisdictional question arises from officials asking

appellate courts to decide whether the district court erred in deciding

that material facts were in dispute. Under § 1291, appellate courts do not

have jurisdiction after Johnson v. Jones.

513 Yet, under the doctrine of pendent appellate jurisdiction, some courts have decided this issue.514

Pendent appellate jurisdiction is a discretionary doctrine that permits

appellate courts to decide an issue for which they do not have jurisdiction

if that issue is inextricably intertwined with an issue for which they have

jurisdiction.515 In the immunity context, an appellate court has jurisdiction under § 1291 to decide whether the district court erred in deciding

that the law was clearly established; it has discretionary jurisdiction to

append to this issue whether the district court erred in deciding that material facts were in dispute. However, in Johnson, the Court suggested that

the appellate court would be “unlikely” to use pendent appellate jurisdiction to review the district court’s determination as to the facts.516

513. 515 U.S. —, 115 S. Ct. 2151 (1995).

514. See, e.g., McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996), amended, 101 F.3d

1363, cert. denied, 117 S. Ct. 2514 (1997).

515. See, e.g., Clinton v. Jones, 117 S. Ct. 1636, 1651 n.41 (1997); Johnson v. Jones,

115 S. Ct. 2151, 2159 (1995); Swint v. Chambers County Comm’n, 115 S. Ct. 1203,

1211–12 (1995).

516. Johnson, 115 S. Ct. at 2159.

95

Chapter 8

Procedural Defenses

Accrual, Statutes of Limitations, and Tolling

Rules

Although § 1983 provides a cause of action for violations of constitutional and federal statutory rights, it does not describe the applicable

statutes of limitations, nor does it detail accrual and tolling rules. When

§ 1983 does not address important litigation issues, the Supreme Court

has often looked to 42 U.S.C. § 1988, 517 which specifies that if the federal

law is “deficient,” state law will apply as long as it is “not inconsistent

with the Constitution and the laws of the United States.”518

Although application of § 1988 does not result in one applicable federal rule, the Supreme Court has looked to this statute to resolve issues

related to statutes of limitations as well as tolling rules. Under § 1988, a

state’s statute of limitations relating to personal injury is applicable to

§ 1983 litigation.519 If a state has multiple statutes relating to personal

injury, then the applicable limitation is the one found in the general or

residual statute. 520 State tolling provisions similarly apply to § 1983 litigation.

517. 42 U.S.C. § 1988 (1993) provides as follows:

The jurisdiction in civil and criminal matters conferred on the district courts . . . shall be

exercised and enforced in conformity with the laws of the United States, so far as such

laws are suitable to carry the same into effect; but in all cases where they are not adapted

to the object, or are deficient in the provisions necessary to furnish suitable remedies

. . . , the common law, as modified and changed by the constitution and statutes of the

State wherein the court having jurisdiction . . . , so far as the same is not inconsistent

with the Constitution and the laws of the United States, shall be extended . . . .

Id.

518. Id.

519. Wilson v. Garcia, 471 U.S. 261 (1985).

520. Owens v. Okure, 488 U.S. 235, 249–50 (1989).
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The issue of accrual is more complex. The courts of appeal generally

agree that the accrual of a claim is a federal issue. The Supreme Court in

Chardon v. Fernandez521 held that courts should assess accrual from the

date the employer notifies an employee of an adverse decision, not the

date of dismissal.522 In assessing the applicable date, the Supreme Court

“takes a hard line on when civil rights claims for relief accrue. If there is

more than one plausible alternative, the Supreme Court appears to be

strongly inclined to pick the earlier date.”523

Claim and Issue Preclusion

When a federal court has to consider the effect of a prior state court

judgment in § 1983 litigation, the relevant statute is 28 U.S.C. § 1738.

The issue centers on applicable federal common law of preclusion. Both

claim preclusion (res judicata) and issue preclusion (collateral estoppel)

apply to § 1983 litigation.524

Section 1738 provides that the “judicial proceedings of any court of

any State shall have the same full faith and credit in every court within

the United States . . . as they have by law or usage in the courts of such

State.”525 Claim preclusion prevents “parties or their privies from relitigating issues that were or could have been raised”526 in the action in

which a court has rendered a final judgment. Issue preclusion bars relitigation of an issue of fact or law that was necessary to the prior judgment

in “a different cause of action involving a party to the first case.”527

The Supreme Court has limited the application of issue preclusion for

state court judgments under certain circumstances: (1) “the party against

whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court”; (2)

“controlling facts or legal principles have changed significantly since the

521. 454 U.S. 6 (1981).

522. Id. at 8.

523. Martin A. Schwartz & John E. Kirklin, 1C Section 1983 Litigation: Claims & Defenses, § 12.4, at 13 (3d ed. 1997).

524. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984) (claim preclusion); Haring v. Prosise, 462 U.S. 306 (1983) (issue preclusion).

525. 28 U.S.C. § 1738 (1993).

526. See, e.g., Allen v. McCurry, 449 U.S. 90, 94 (1980).

527. Id.
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state-court judgment”; and (3) “special circumstances warrant an exception to the normal rules of preclusion.”528

Because § 1738 applies to “judicial proceedings,” it does not apply to

arbitration decisions.529 Preclusion is more complex, however, when the

prior decision was rendered by an administrative body. In University of

Tennessee v. Elliott,

530 the Supreme Court held “that when 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.”531 This federal

common-law rule of preclusion focuses attention on the nature of the

proceeding, a state’s rule of preclusion, and its fact finding. Although this

rule seems contrary to the purposes of § 1983 as articulated in Monroe v.

Pape,

532 the Court nevertheless concluded that Congress did not intend

to broadly limit § 1738.533

528. Haring, 462 U.S. at 313–14 n.7.

529. McDonald v. City of West Branch, 466 U.S. 284 (1984).

530. 478 U.S. 788 (1986).

531. Id. at 799.

532. 365 U.S. 167 (1961).

533. Id. at 180.

99

Chapter 9

Abstention Doctrines

The Supreme Court has described a federal court’s obligation to adjudicate claims properly within its jurisdiction as “virtually unflagging.”534

Accordingly, “[a]bstention from the exercise of federal jurisdiction is the

exception, not the rule,”535 and the Supreme Court has limited the circumstances appropriate for abstention. Four abstention doctrines apply

to § 1983 litigation in federal court: Pullman,

536 Burford,537 Younger,538

and Colorado River.

539

Pullman Abstention

In Railroad Commission of Texas v. Pullman Co.,

540 plaintiffs sought to

enjoin the commission from enforcing a duly promulgated order requiring all railroad sleeping cars in the state of Texas to be under the

control of a person having the rank of conductor.541 At the time, porters

on Pullmans were African-Americans; conductors were Caucasians.

Plaintiffs assailed the order on both state law and federal constitutional

grounds.542

The Supreme Court held “that when a federal constitutional claim is

premised on an unsettled question of state law, the federal court should

534. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817–18

(1976).

535. Id. at 813.

536. Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941).

537. Burford v. Sun Oil Co., 319 U.S. 315 (1943).

538. Younger v. Harris, 401 U.S. 37 (1971).

539. Colorado River, 424 U.S. at 800.

540. 312 U.S. 496 (1941).

541. Id. at 497–98.

542. Id. at 498.
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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.”543 Thus, the district court

should have deferred its decision until the Texas court decided whether

the commission had authority under state law to issue the order. If the

commission had no such authority, there would be no need to address

the federal constitutional issue.544

Pullman abstention is applicable only when the issue of state law is

unsettled and when the state statute is “fairly subject to an interpretation

which will render unnecessary or substantially modify the federal constitutional question.”545 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.”546

In England v. Louisiana State Board of Medical Examiners,

547 the Court

set out the procedures to be followed when Pullman abstention is invoked.548 A party has the right to return to the district court for a final

determination of the party’s claim once the party has obtained the

authoritative state-court construction of the state law in question.549 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.”550 A party may elect to

forego the right to return to federal court by choosing to litigate the federal constitutional claim in state court.551

543. Harris County Comm’rs Court v. Moore, 420 U.S. 77, 83 (1975) (interpreting

Pullman).

544. Pullman, 312 U.S. at 501.

545. Harman v. Forssenius, 380 U.S. 528, 534–35 (1965).

546. Harrison v. N.A.A.C.P., 360 U.S. 167, 177 (1959).

547. 375 U.S. 411 (1964).

548. An alternative to the procedures outlined in England exists in those states that

have “certification” statutes allowing a federal appeals court or district court to “certify” a

question of unsettled state law to the highest court of the state for a decision. The availability of certification has a great impact on the time and cost involved in Pullman abstention. See generally Erwin Chemerinsky, Federal Jurisdiction § 12.3 (1994).

549. England, 375 U.S. at 417.

550. Id. at 421–22.

551. Id. at 419. If a party so elects, 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
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In Arizonans for Official English v. Arizona,

552 the Supreme Court suggested that, where available, state certification procedures be used instead

of Pullman abstention. State certification procedures allow federal courts

to directly certify unsettled, dispositive questions of state law to the 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 statecourt 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.553

Burford Abstention

In Burford v. Sun Oil Co.,

554 the plaintiff sought to enjoin the enforcement of an order of the Texas Railroad Commission 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 law.555

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.556

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

sufficient to lift the 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).

552. 117 S. Ct. 1055 (1997).

553. Id. at 1073.

554. 319 U.S. 315 (1943).

555. Id. at 317.

556. Id. at 324, 326.
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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.”557

Thus, where complex administrative procedures have been developed

in an effort to formulate uniform policy in an area of local law, “a sound

respect for the independence of state action requires the federal equity

court to stay its hand.”558 Unlike Pullman abstention, Burford abstention

does not anticipate a return to the federal district court. The federal court

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.559

In New Orleans Public Service, Inc. v. Council of City of New Orleans

(NOPSI),

560 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.”561 In NOPSI the Court emphasized that

the primary concern underlying Burford abstention is the avoidance of

federal disruption of “the State’s attempt to insure uniformity in the

treatment of an essentially local problem.”562

The Court has held that the power to dismiss or remand a case based

on Burford abstention principles exists only where the relief sought is equitable or otherwise discretionary in nature.563 Where damages were being sought, the Court found the district court’s remand order to be “an

unwarranted application of the Burford doctrine.”564

557. Id. at 332.

558. Id. at 341.

559. Id. at 333–34.

560. 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 Reactor.

561. Id. at 362.

562. Id. at 364.

563. Quackenbush v. Allstate Ins. Co., 117 S. Ct. 1712, 1728 (1996).

564. Id. Given the facts of the case before it, the Court found it unnecessary to decide

whether a more limited “abstention-based stay order” would have been appropriate. Id.
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Younger Abstention

In Younger v. Harris,

565 the Supreme Court held that a federal district

court could not enjoin state criminal proceedings pending in state court

when the federal suit was commenced.566 The Court made clear that its

decision was not based on an application of the Anti-Injunction Act.567

Rather, a basic doctrine of equity dictated that no injunction should be

granted “when the moving party has an adequate remedy at law and will

not suffer irreparable injury if denied equitable relief.”568 Because the

federal plaintiff could raise and vindicate his federal constitutional rights

in the course of the state criminal proceeding, an adequate remedy was

available in the pending state prosecution. More importantly, the Court

emphasized the notion of “comity,” or “Our Federalism,” a system that

guards against undue interference by the national government with “the

legitimate activities of the states.”569

The Younger doctrine has been extended substantially beyond the

context of prohibiting injunctions against pending state criminal pro565. 401 U.S. 37 (1971).

566. Id. at 41. The Court noted three “extraordinary circumstances” in which a federal

court need not defer to pending state court proceedings: first, where the state is engaged

in a “bad faith” prosecution in order to harass the federal plaintiff, with no purpose or

expectation of obtaining a conviction (id. at 49); second, where a state statute is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort may be to

apply” (id. at 53–54) (internal quotation marks and citations omitted); finally, where the

pending state proceedings will not afford an adequate opportunity to vindicate the federal

plaintiff’s constitutional rights (id. at 48–49). See, e.g., Gibson v. Berryhill, 411 U.S. 564

(1973) (Younger held inapplicable because state board of optometry was incompetent, by

reason of bias, to adjudicate the issues pending before it). While these three “extraordinary circumstances” were identified as exceptions to the application of Younger abstention, as one commentator has noted, “each of them is very limited. Younger is not an absolute ban on federal court injunctions, but it is quite close.” Erwin Chemerinsky, Federal

Jurisdiction § 13.4 (1994).

567. 28 U.S.C. § 2283 (1994) provides:

A court of the United States may not grant an injunction to stay proceedings in a State

court except as expressly authorized by Act of Congress, or when necessary in aid of its

jurisdiction, or to protect or effectuate its judgments.

In Mitchum v. Foster, 407 U.S. 225 (1972), the Court held that § 1983 is an expressly

authorized exception to the Anti-Injunction Act. Thus, Younger abstention operates as an

independent bar to the enjoining of state court proceedings.

568. Younger, 401 U.S. at 43–44.

569. Id. at 44.
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ceedings. In Samuels v. Mackell,

570 the Supreme Court held that in federal

cases where 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.”571 While the

Supreme Court has not directly addressed the question of whether

Younger applies when a federal plaintiff is seeking only monetary relief

with respect to matters that are the subject of a state criminal proceeding,572 it has implied that Colorado River abstention might be appropriate

in such situations.573

In a number of decisions, beginning with Huffman v. Pursue, Ltd.,

574

the Court has extended the application of Younger to bar federal interference with state civil proceedings. In Huffman, the Court noted that the

civil nuisance proceeding at issue in the case was in important respects

“more akin to a criminal prosecution than are most civil cases,” because

570. 401 U.S. 66 (1971).

571. 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 unanimously held that “federal

declaratory relief is not precluded when no state prosecution is pending and a federal

plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute

. . . .”Id. at 475. 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.” Id. at 349.

The Court has likewise held that the granting of preliminary injunctive relief (see

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)) or permanent injunctive relief (see Wooley

v. Maynard, 430 U.S. 705 (1977)) is not barred by Younger principles when no criminal

proceeding is pending.

572. In Deakins v. Monaghan, 484 U.S. 193 (1988), 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.” Id. at 202.

573. See Heck v. Humphrey, 114 S. Ct. 2364, 2373 n.8 (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 Colorado River)). The Court held in Heck 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 2373.

574. 420 U.S. 592 (1975).
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the state was a party to the proceeding, and the proceeding itself was in

aid of and closely related to criminal statutes.575 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 the

tests laid down in Younger” in deciding whether to enjoin the state civil

nuisance proceeding.576

Younger has been applied to prohibit federal court interference with

pending state administrative proceedings. In Middlesex County Ethics

Commission v. Garden State Bar Ass’n,

577 the Court was faced with the

question of whether pending state bar disciplinary hearings were subject

to the principles of Younger. In holding Younger applicable, the Court

underscored the judicial nature of the proceedings, the “extremely important” state interest involved, and the availability of an adequate opportunity for the representation of constitutional claims in the process.578

575. Id. at 604. In Moore v. Sims, 442 U.S. 415 (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.

576. Huffman, 420 U.S. at 607. In Trainor v. Hernandez, 431 U.S. 434 (1977), the

Court held that the principles of Younger and Huffman were broad enough to apply to

interference by a federal court with ongoing attachment proceedings “brought by the

State in its sovereign capacity” to vindicate important state policies. Id. at 444. See also

Juidice v. Vail, 430 U.S. 327, 335 (1977) (holding that principles of “comity” and “federalism” applied to a case where the state was not a party, but where the state’s judicial

contempt process was involved and the state’s interest in the contempt process is of “sufficiently great import to require application of the principles of Younger”); Pennzoil Co. v.

Texaco Inc., 481 U.S. 1, 13–14 & n.12 (1987) (reversing lower court’s granting of federal

court injunction against a state court requirement that Texaco post bond in excess of $13

billion in order to prevent the execution of a judgment against it while an appeal was pursued; holding that the rationale of Younger applied to this civil proceeding, observing the

state’s interest in protecting “the authority of the judicial system, so that its orders and

judgments are not rendered nugatory”). But see NOPSI, 491 U.S. 350, 368 (1989) (holding

that Younger does not apply to state judicial proceedings “reviewing legislative or executive action”).

577. 457 U.S. 423 (1982).

578. In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619

(1986), 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. Board of Regents

of Fla., 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 Comm’n, 477 U.S.
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Colorado River Abstention

In Colorado River Water Conservation District v. United States,

579 the Supreme Court confronted the question of what a federal court should do

when there are duplicative proceedings occurring in state court. The government had brought suit seeking a declaration of water rights on its own

behalf and on behalf of certain Indian tribes.580 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.581 Although the Supreme Court found that none of the socalled “abstention doctrines” applied to the facts of this case,582 it held

that dismissal was proper “on another ground—one resting not on considerations of state–federal comity or on avoidance of constitutional decisions, as does abstention, but on considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.”583

The Court noted 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.”584 There are, however, exceptional

circumstances that might permit dismissal of a federal suit in the face of

concurrent state court proceedings.585 The Court identified four factors

to be considered in determining whether such exceptional circumstances

exist: (1) problems created by two courts exercising concurrent jurisdiction over a res; (2) the issue of 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.586

at 627–28 n.2.

579. 424 U.S. 800 (1976).

580. Id. at 805.

581. Id. at 806.

582. Id. at 813–17.

583. Id. at 817 (citing Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180,

183 (1952)).

584. Colorado River, 424 U.S. at 817 (citing McClellan v. Carland, 217 U.S. 268, 282

(1910)).

585. Id. at 818.

586. Id.
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In Moses H. Cone Memorial Hospital v. Mercury Construction Co.,

587

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 occurring in state court.588 In addition,

the Court announced that another factor to be given great weight in the

balancing of considerations is the presence of a question of federal law.589

While the Court left open the question of whether the proper course

to take when employing Colorado River abstention is a stay or a dismissal

without prejudice, it is clear that “resort to the federal forum should remain available if warranted by significant change of circumstances.”590 A

dismissal or stay of a federal action is improper unless the concurrent

state action has jurisdiction to adjudicate the claims at issue in the federal

suit.591

In Wilton v. Seven Falls Co.,

592 the Supreme Court resolved a conflict

among the circuits regarding the standard to be applied by a district

court in deciding whether to stay a declaratory judgment action in deference to parallel state proceedings. The Court held that “[d]istinct features

of the 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.”593

587. 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.

588. Id. at 25, 26.

589. Id. at 23.

590. 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. See Wilton v. Seven Falls Co., 115 S. Ct. 2137, 2143 n.2 (U.S. 1995) (noting that

“where the basis for declining to proceed is the pendency of a state proceeding, a stay will

often be the preferable course, insofar as 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”).

591. San Carlos Apache Tribe, 463 U.S. at 560.

592. 115 S. Ct. 2137 (1995).

593. Id. at 2138–43. The Court found that the discretionary standard announced in

Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), had not been supplanted
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A stay order granted under Colorado River is final and immediately

appealable.594 However, an order refusing abstention under Colorado

River is “inherently tentative” and is not immediately appealable under

the collateral order doctrine.595

by the “exceptional circumstances” test of Colorado River and Moses H. Cone. 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. See also NYLife

Distributors, Inc. v. Adherence Group, Inc., 72 F.3d 371, 382 (3d Cir. 1995) (holding that

“the discretionary standard enunciated in Brillhart governs a district court’s decision to

dismiss an action commenced under the interpleader statute during the pendency of parallel state court proceedings”).

594. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 10 (1983).

595. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988).
109

Chapter 10

Remedies

Compensatory Damages

The full range of common-law remedies is available to a plaintiff asserting a claim under § 1983. Legal relief may take the form of nominal,

compensatory, as well as punitive 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.”596 The Supreme Court has stressed, however, that “[t]he

rule of damages . . . is a federal rule responsive to the need whenever a

federal right is impaired.”597

Compensatory damages generally fall into one of three categories: special, general, or nominal damages. 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. Nominal damages reflect the

violation of a right with no proven actual injury.

In Carey v. Piphus,

598 the Supreme 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.”599

Thus, actual damages will not be presumed in a procedural due process

case and, without proof of damages, the plaintiff will be entitled only to

596. Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986).

597. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969).

598. 435 U.S. 247 (1978).

599. Id. at 264.
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“nominal damages not to exceed one dollar.” 600 The Court noted in

Carey that the primary purpose of the damages remedy in § 1983 litigation is “to compensate persons for injuries caused by the deprivation of

constitutional rights.”601

The Court relied on Carey and extended its holding to a case involving

the violation of a plaintiff’s First Amendment rights in Memphis Community School District v. Stachura.602 In Stachura, the Supreme Court

held that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages” in § 1983 cases.603 The problem identified in Stachura 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.604 The Court distinguished the line of common-law voting rights

cases in which presumed damages have been awarded “for a nonmonetary harm that cannot easily be quantified.”605 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.”606

Punitive Damages

A plaintiff may be awarded punitive damages against an individual defendant “when the defendant’s conduct is shown to be motivated by evil

motive or intent, or when it involves reckless or callous indifference to

the federally protected rights of others.”607 As is the case with compensatory damages, federal law governs the availability of punitive damages

in a federal civil rights action under § 1983.608 A local government unit is

immune from punitive damages under § 1983.609

600. Id. at 267.

601. Id. at 254.

602. 477 U.S. 299 (1986).

603. Id. at 310.

604. Id. at 310 n.13.

605. Id. at 311 & n.14.

606. Id. at 310–11.

607. Smith v. Wade, 461 U.S. 30, 56 (1983).

608. See, e.g., Wulf v. City of Wichita, 883 F.2d 842, 867 (10th Cir. 1989).

609. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).
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In Pacific Mutual Life Insurance Co. v. Haslip,

610 the Supreme Court

established guidelines for determining whether punitive damages

awarded under state law violated substantive due process. The Court focused on the jury instructions as to the purpose of punitive damages, the

adequacy of procedures for the trial court’s review of the award, and the

adequacy of state appellate court review.611 The jury instructions approved by the court in Haslip informed the jury that the purpose of punitive damages was deterrence and retribution. Furthermore, the jury was

advised that it must consider the character and degree of the wrong as

shown by the evidence and the necessity of preventing similar wrong.

Finally, the jury was informed that the imposition of punitive damages

was not compulsory.612

The Court found the procedures that had been established by the Supreme Court of Alabama for post-trial scrutiny of punitive awards ensured meaningful and adequate review of punitive damages by the trial

court. The factors to be considered by the trial court included the culpability of the defendant’s conduct, as well as the desirability of discouraging others from similar conduct.613 The final safeguard against irrational

punitive awards was in the criteria applied by the state appellate court. In

assessing the reasonableness of an award of punitive damages, the following criteria were used by the state appellate court and approved by the

Supreme Court:

(a) whether there is a reasonable relationship between the punitive

damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred; (b) the degree of

reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence

610. 499 U.S. 1 (1991).

611. Id. at 16–18. See also BMW of North Am., Inc. v. Gore, 116 S. Ct. 1589, 1604

(1996) (“As in Haslip, we are not prepared to draw a bright line marking the limits of a

constitutionally acceptable punitive damages award. Unlike that case, however, we are

fully convinced that the grossly excessive award imposed in this case transcends the constitutional limit.”); TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443, 453–54,

462 (1993) (agreeing that several of the Court’s opinions have recognized that the Fourteenth Amendment places substantive limits on punitive damages awards, but rejecting

the argument that the $10 million punitive damages award in this case was so “grossly

excessive” that it violated substantive due process).

612. Haslip, 499 U.S. at 19.

613. Id.
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and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that

profit and of having the defendant also sustain a loss; (d) the “financial

position” of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanctions on the defendant for its conduct, these to be

taken in mitigation; and (g) the existence of other civil awards against

the defendant for the same conduct, these also to be taken in mitigation.614

The majority of courts of appeals agree that punitive damages may be

appropriate even where only nominal damages are awarded.615 While

Haslip reinforces the principle that juries must take the financial condition of the defendant into account when assessing the punitive damages

award, there remains disagreement as to whether the plaintiff or the defendant has the burden of producing evidence as to the financial position

of the defendant.616

Survival and Wrongful Death Actions Under

§ 1983

As noted in Chapter 8 (Procedural Defenses), where § 1983 does not

provide suitable remedies for constitutional violations, the federal courts

are instructed to turn to state law “so far as the same is not inconsistent

with the Constitution and laws of the United States.”617 In Robertson v.

Wegmann,

618 the Supreme Court held that state law on survivorship of

614. Id. at 21–22. While the Supreme Court has not reviewed a case raising a claim of

excessiveness in a punitive damages award where the award was made in a federal court

on a federal cause of action, at least one court of appeals has applied the analysis set out in

Haslip to assess the constitutionality of punitive damages awards made pursuant to federal law in federal courts. See Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993)

(“The principles of Haslip are applicable . . . to punitive damages imposed by federal

courts for violations of federal law.”).

615. See, e.g., King v. Macri, 993 F.2d 294, 297, 298 (2d Cir. 1993) (citing cases).

616. Compare King v. Macri, 993 F.2d 294, 298 (2d Cir. 1993) (burden on defendant

to present evidence of financial circumstances at trial) and Zarcone v. Perry, 572 F.2d 52,

56 (2d Cir. 1978) (burden on defendant), with Morgan v. Woessner, 997 F.2d 1244, 1259

(9th Cir. 1993) (burden on plaintiff with respect to state law claims) and Keenan v. City of

Philadelphia, 983 F.2d 459, 483, 484 (3d Cir. 1992) (Higginbotham, J., dissenting) (plaintiff should have burden of producing evidence of defendant’s financial condition).

617. See 42 U.S.C. § 1988(a) (1994).

618. 436 U.S. 584 (1978).
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113

claims should control so long as that state law is not generally “inhospitable to survival of § 1983 actions . . . [and] has no adverse effect on the

policies underlying § 1983.”619 Although the Court held applicable a state

law that caused the § 1983 action to abate in that case, it indicated that

the situation might be different where the “deprivation of federal rights

caused death.”620

The Supreme Court has not resolved the issue of whether wrongful

death claims may be pursued under § 1983. As one court has noted, this

question “has ‘generated considerable confusion and disagreement,’ over

which the circuits have divided.”621 In a leading circuit case, Brazier v.

Cherry,

622 the Court of Appeals for the Fifth Circuit made no distinction

between the state’s survival statutes and its wrongful death statutes for

purposes of the § 1983 action, concluding that “utilization of local death

and survival statutes” served the goal of making federal civil rights legislation “fully effectual.”623

In Jefferson v. City of Tarrant,

624 the Supreme Court had granted certiorari to decide whether the Alabama Wrongful Death Act “governs recovery when a decedent’s estate claims, under . . . Section 1983 that the

death in question resulted from a deprivation of federal rights,”625 but

dismissed the appeal for lack of jurisdiction.

Injunctive Relief

To obtain injunctive relief in federal court, a plaintiff must demonstrate

“the likelihood of substantial and immediate irreparable injury, and the

inadequacy of remedies at law.”626 In City of Los Angeles v. Lyons,

627 the

plaintiff sought to enjoin the future use of a chokehold to which he had

been subjected when stopped by the police. The Court held that Lyons

619. Id. at 594.

620. Id.

621. Rhyne v. Henderson County, 973 F.2d 386, 390 (5th Cir. 1992) (quoting

Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991)). See generally Stephen L. Steinglass, Wrongful Death Actions and Section 1983, 60 Ind. L.J. 559 (1985). Compare Shaw v.

Stroud, 13 F.3d 791 (4th Cir. 1994), with Bell v. City of Milwaukee, 746 F.2d 1205 (1984).

622. 293 F.2d 401 (5th Cir.), cert. denied, 368 U.S. 921 (1961).

623. Id. at 409.

624. 118 S. Ct. 481 (1997).

625. Id. at 484.

626. O’Shea v. Littleton, 414 U.S. 488, 502 (1974).

627. 461 U.S. 95 (1983).
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did not satisfy the prerequisites for seeking equitable relief. Speculation

or conjecture that he might be subjected to the chokehold at some time

in the future was not sufficient to demonstrate “any real or immediate

threat that the plaintiff [would] be wronged again.”628 Furthermore, the

legality of the challenged conduct could be litigated in the plaintiff’s

claim for damages. Thus, there existed an adequate remedy at law.

The Court in Lyons suggested that the plaintiff would have had

standing to seek injunctive relief if he had alleged either that “all police

officers 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.”629 Following Lyons, courts of appeals have

found standing to seek injunctive relief where the conduct to be enjoined

has been authorized by policy or practice.630 In determining what constitutes sufficient “official authorization” to satisfy the Lyons requirement

for seeking injunctive relief, courts should look to cases interpreting the

scope of “official policy or custom” in the context of asserting claims for

damages against a governmental unit.631

Declaratory Relief

Under the Declaratory Judgment Act,632 given the existence of “a case of

actual controversy within its jurisdiction,” a federal court “may declare

the rights and other legal relations of any interested party seeking such

declaration.”633 Declaratory relief is available even when an adequate

remedy at law exists.

A declaratory judgment rules on the lawfulness of the policy or conduct challenged by the plaintiff, but, unlike injunctive relief, does not

require that the court become engaged in intrusive oversight of governmental activity. A plaintiff need not make a showing of irreparable injury

628. 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).

629. Lyons, 461 U.S. at 106 (emphasis in original).

630. See, e.g., Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994); International Molders & Allied Workers v. Nelson, 799 F.2d 547 (9th Cir. 1986).

631. Monell v. Department of Soc. Servs., 436 U.S. 658 (1978). See generally “Chapter

5: Governmental and Supervisory Liability,” supra.

632. 28 U.S.C. § 2201 (1994).

633. Id.
CHAPTER 10: REMEDIES

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to get declaratory relief.634 A declaratory judgment, like any other final

judgment, has full res judicata effect.635

Abstention Doctrines and Statutory Bars to

Relief Under § 1983

As explained in Chapter 9 (Abstention Doctrines), there are certain circumstances under which a federal court will abstain from exercising its

jurisdiction in a § 1983 action. In such cases, plaintiffs may be forced to

pursue their remedies under state law. In addition, the Tax Injunction

Act636 prohibits federal courts from enjoining “the assessment, levy or

collection of any tax under State law where a plain, speedy and efficient

remedy may be had in the courts of such state.” In California v. Grace

Brethren Church,

637 the Court held that the Tax Injunction Act applied to

federal declaratory judgment suits challenging the constitutionality of

state tax laws.638 In Fair Assessment in Real Estate Ass’n v. McNary,

639 the

Court found that the principle of comity operated to preclude a damages

action under § 1983 contesting the validity of a state tax system.640 Finally, in National Private Truck Council, Inc. v. Oklahoma Tax Commission,

641 the Court resolved a conflict among the state courts “as to

whether, in tax cases, state courts must provide relief under § 1983 when

adequate remedies exist under state law.”642 The Court held that “[w]hen

a litigant seeks declaratory or injunctive relief against a state tax pursuant

to § 1983 . . . state courts, like their federal counterparts, must refrain

from granting federal relief under § 1983 when there is an adequate legal

remedy.”643

634. Steffel v. Thompson, 415 U.S. 452, 466–67 (1974).

635. See, e.g., Green v. Mansour, 474 U.S. 64 (1986).

636. 28 U.S.C. § 1341 (1988).

637. 457 U.S. 393 (1982).

638. Id. at 407–11.

639. 454 U.S. 100 (1981).

640. Id. at 116.

641. 515 U.S. 582 (1995).

642. Id. at 585–86.

643. Id. at 592.
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Attorney’s Fees

The Civil Rights Attorney’s Fees Awards Act of 1976644 provides that a

prevailing party in actions brought under specified civil rights statutes,

including § 1983, may be entitled to an award of attorney’s fees as part of

the costs of litigation. The Act has generated a tremendous volume of

litigation and is treated as the subject of a separate monograph on attorney’s fees.645

Prison Litigation Reform Act (PLRA)646

In any action involving prisoners’ rights, there are likely to be substantial

limitations placed on the availability and scope of the remedies sought.

While a discussion of the various provisions of the 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.”647 Exhaustion of administrative remedies is required in actions relating to prison conditions.648 The availability of attorney’s fees is significantly restricted.649 Injunctive relief in prison reform litigation must be

644. 42 U.S.C. § 1988(b), amended by Pub. L. No. 104-317, Title III, § 309(b), 110

Stat. 3853 (119), provides:

(b) Attorney’s fees

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983,

1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et seq.],

the Religious Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.], title VI of

the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this title

[Violence Against Women Act], the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee as part of the costs, except

that in any action brought against a judicial officer for an act or omission taken in such

officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

645. See generally Alan Hirsch & Diane Sheehey, Awarding Attorneys’ Fees & Managing Fee Litigation (Federal Judicial Center 1994).

646. On April 26, 1996, Congress enacted the Prison Litigation Reform Act as Title

VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L.

No. 104-134, 110 Stat. 1321 (1996).

647. 42 U.S.C. § 1997e(e) (Supp. 1997). See, e.g., Zehner v. Trigg, 133 F.3d 459, 464

(7th Cir. 1997) (upholding constitutionality of provision).

648. 42 U.S.C. § 1997e(a) (Supp. 1997).

649. 42 U.S.C. §§ 1997e(d)(1)–(4) (Supp. 1997).
CHAPTER 10: REMEDIES

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narrowly drawn to remedy violations of federal rights.650 Government

officials may seek the immediate termination of all prospective relief that

was awarded or approved before the enactment of the PLRA without 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.”651

650. 18 U.S.C. § 1362(a) (Supp. 1997).

651. 18 U.S.C. § 3626(b)(2). This provision has been the subject of much recent litigation. The courts of appeals that have addressed the constitutionality of the provision

have uniformly upheld the section, but the rationales have varied and the issue will no

doubt wind its way to the Supreme Court. See, e.g., Inmates of the Suffolk County Jail v.

Rouse, 129 F.3d 649 (1st Cir. 1997); Benjamin v. Jacobson, 122 F.3d 1055 (2d Cir. 1997);

Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997); Plyler v. Moore, 100 F.3d 365 (4th Cir.

1996), cert. denied, 117 S. Ct. 2460 (1997). See also James v. Lash, 965 F. Supp. 1190 (N.D.

Ind. 1997); Jensen v. County of Lake, 958 F. Supp. 397 (N.D. Ind. 1997). One court has

struck down the termination provision as violating separation of powers principles. Hadix

v. Johnson, 947 F. Supp. 1100 (E.D. Mich. 1996).

119

Table of Cases

Adickes v. Kress & Co., 398 U.S. 144 (1970), 5, 8

Albright v. Oliver, 510 U.S. 266 (1994), 18, 26, 27, 31, 32–35

Alexander v. Ieyoub, 62 F.3d 709 (5th Cir. 1995), 17

Allen v. McCurry, 449 U.S. 90 (1980), 96, 101

Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), 61, 63–64

Anderson v. Creighton, 483 U.S. 635 (1987), 82, 83, 84, 87, 88

Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993), 75

Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), 107

Arizonans for Official English v. Arizona, 117 S. Ct. 1055 (1997), 101

Arkansas Medical Soc’y, Inc. v. Reynolds, 6 F.3d 519 (8th Cir. 1993), 48

Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996), 57

Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), 67

Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), 68

Behrens v. Pelletier, 116 S. Ct. 834 (1996), 81, 87, 90, 91–92

Bell v. City of Milwaukee, 746 F.2d 1205 (1984), 113

Benjamin v. Jacobson, 122 F.3d 1055 (2d Cir. 1997), 117

Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996), 63

Biggs v. Meadows, 66 F.3d 56 (4th Cir. 1995), 56

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), 78

Blessing v. Freestone, 117 S. Ct. 1353 (1997), 44, 48–49, 50

Blum v. Yaretsky, 457 U.S. 991 (1982), 9, 11

BMW of N. Am., Inc. v. Gore, 116 S. Ct. 1589 (1996), 18, 111

Board of County Commissioners v. Brown, 117 S. Ct. 1382 (1997), 62–64

Board of Regents v. Roth, 408 U.S. 564 (1972), 14

Bogan v. Scott-Harris, 118 S. Ct. 966 (1998), 73

Bogle v. City of Warner Robins, 953 F. Supp. 1563 (M.D. Ga. 1997), 23

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), 58–59

Branch v. Tunnel, 14 F.3d 449 (9th Cir. 1994), 85

Brandon v. Holt, 469 U.S. 464 (1985), 56

Branti v. Finkel, 445 U.S. 507 (1980), 38

Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), 113

Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), 107–08

Briscoe v. LaHue, 460 U.S. 325 (1983), 78

Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997), 14–15

Brower v. County of Inyo, 489 U.S. 593 (1989), 28

Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525 (1st Cir. 1995), 17
SECTION 1983 LITIGATION

120

Buckley v. Fitzsimmons, 113 S. Ct. 2606 (1993), 71, 77

Bulger v. United States Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995), 15

Burford v. Sun Oil Co., 319 U.S. 315 (1943), 99, 101–02

Burns v. Reed, 500 U.S. 478 (1991), 76–77

Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961), 8

Butz v. Economou, 438 U.S. 478 (1978), 75

California v. Grace Brethren Church, 457 U.S. 393 (1982), 115

California v. Hodari D., 499 U.S. 621 (1991), 27

Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995), 20

Carey v. Piphus, 435 U.S. 247 (1978), 109–10

Chaloux v. Killeen, 886 F.2d 247 (9th Cir. 1989), 55

Chardon v. Fernandez, 454 U.S. 6 (1981), 96

Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), 62

Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994), 114

Cinevision Corp. v. City of Burbank, 745 F.2d 560 (9th Cir. 1984), 72

City of Canton v. Harris, 489 U.S. 378 (1989), 59–62, 63, 68, 69

City of Los Angeles v. Heller, 475 U.S. 796 (1986), 55

City of Los Angeles v. Lyons, 461 U.S. 95 (1983), 113–14

City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), 57, 58, 63, 65, 110

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985), 59

City of St. Louis v. Praprotnik, 485 U.S. 112 (1988), 66–67

City of St. Louis v. Praprotnik, 798 F.2d 1168 (8th Cir. 1986), 66

Clay v. Conlee, 815 F.2d 1164 (8th Cir. 1987), 67

Cleavinger v. Saxner, 474 U.S. 193 (1985), 75

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985), 14, 16

Clinton v. Jones, 117 S. Ct. 1636 (1997), 78, 93

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), 91

Collins v. City of Harker Heights, 503 U.S. 115 (1992), 18, 22–23, 24

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), 99, 104,

106, 107, 108

Connick v. Meyers, 461 U.S. 138 (1983), 39, 40

Cook v. Sheldon, 41 F.3d 73 (2d Cir. 1994), 35

Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), 23

Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995), 15

Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993), 61

Crawford-El v. Britton, 523 U.S. —, 118 S. Ct. 1584 (1998), 85, 86, 88

Crumpton v. Gates, 947 F.2d 1418 (9th Cir. 1991), 113

Daddow v. Carlsbad Mun. Sch. Dist., 898 F.2d 1235 (D. N.M. 1995), 52

Daniels v. Williams, 474 U.S. 327 (1986), 13, 17, 24, 32, 68

Davidson v. Cannon, 474 U.S. 344 (1986), 24

Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), 61–62

Dawson v. Milwaukee, 930 F.2d 1283 (7th Cir. 1991), 21

Deakins v. Monaghan, 484 U.S. 193 (1988), 104

Dennis v. Higgins, 498 U.S. 439 (1991), 13, 40–41
TABLE OF CASES

121

Dennis v. Sparks, 449 U.S. 24 (1980), 8, 79

DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189 (1989), 19–20, 21,

22, 23

Dickerson v. McClellan, 37 F.3d 251 (6th Cir. 1994), 92

Dimeglio v. Haines, 45 F.3d 790 (4th Cir. 1995), 87

Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996), 21

Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412 (5th Cir. 1997), 20–21, 64

Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443 (5th Cir. 1994), 69

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), 15

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), 104

Dotson v. Chester, 937 F.2d 920 (4th Cir. 1991), 66

D.W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997), 20

Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), 22–23

Edelman v. Jordan, 415 U.S. 651 (1974), 51

Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), 5, 10, 11

Edwards v. Balisok, 117 S. Ct. 1584 (1997), 32

Elder v. Holloway, 510 U.S. 510 (1994), 83

Elrod v. Burns, 427 U.S. 347 (1976), 38

England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411 (1964), 100

Estelle v. Gamble, 429 U.S. 97 (1976), 19, 24, 30, 35–36

Fagan v. City of Vineland (Fagan II), 22 F.3d 1283 (3d Cir. 1994), 55

Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100 (1981), 115

Farmer v. Brennan, 114 S. Ct. 1970 (1994), 35, 36–37, 60

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), 52

Flagg Bros. v. Brooks, 436 U.S. 149 (1978), 9

Florida Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981), 51

Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991), 89

Forrester v. White, 484 U.S. 219 (1988), 75

Fortner v. Thomas, 983 F.2d 1111 (3d Cir. 1988), 85

Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), 23

Garner v. Memphis Police Dep’t, 8 F.3d 358 (6th Cir. 1993), 58

Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), 117

Gibson v. Berryhill, 411 U.S. 564 (1973), 103

Gilbert v. Homar, 117 S. Ct. 1807 (1997), 16

Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992), 67

Golden State Transit Corp. v. Los Angeles, 493 U.S. 103 (1989), 41, 45, 48, 49

Gomez v. Toledo, 446 U.S. 635 (1980), 85

Graham v. Connor, 490 U.S. 386 (1989), 18, 25, 26, 27, 29, 30

Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990), 69

Green v. Mansour, 474 U.S. 64 (1986), 115

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997), 14

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988), 108

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1st Cir. 1989), 68, 69
SECTION 1983 LITIGATION

122

Hadix v. Johnson, 947 F. Supp. 1100 (E.D. Mich. 1996), 117

Hafer v. Melo, 112 S. Ct. 358 (1991), 56

Hans v. Louisiana, 134 U.S. 1 (1890), 51

Haring v. Prosise, 462 U.S. 306 (1983), 96, 97

Harlow v. Fitzgerald, 457 U.S. 800 (1982), 81, 82, 87, 90, 91

Harman v. Forssenius, 380 U.S. 528 (1965), 100

Harris County Comm’rs Court v. Moore, 420 U.S. 77 (1975), 100

Harrison v. N.A.A.C.P., 360 U.S. 167 (1959), 100

Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996), 53

Heck v. Humphrey, 114 S. Ct. 2364 (1994), 31–32, 104

Helling v. McKinney, 113 S. Ct. 2475 (1993), 36

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994), 52–53

Hicks v. Miranda, 422 U.S. 332 (1975), 104

Hines v. Gomez, 108 F.3d 265 (9th Cir. 1997), 15

Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989), 68, 69

Hudgens v. NLRB, 424 U.S. 507 (1976), 10

Hudson v. McMillian, 112 S. Ct. 995 (1992), 26, 28, 29, 30, 37

Hudson v. Palmer, 468 U.S. 517 (1984), 17

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), 104–05

Hunter v. Bryant, 112 S. Ct. 534 (1992), 84

Hunter v. Bryant, 502 U.S. 224 (1991), 87, 89

Imbler v. Pachtman, 424 U.S. 409 (1976), 76

Ingraham v. Wright, 430 U.S. 651 (1977), 21

Inmates of the Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997), 117

I.N.S. v. Delgado, 466 U.S. 210 (1984), 27

International Molders & Allied Workers v. Nelson, 799 F.2d 547 (9th Cir. 1986), 114

Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), 9, 10

James v. Lash, 965 F. Supp. 1190 (N.D. Ind. 1997), 117

Jeanine B. v. Thompson, 877 F. Supp. 1268 (E.D. Wis. 1995), 47

Jefferson v. City of Tarrant, 118 S. Ct. 481 (1997), 113

Jensen v. County of Lake, 958 F. Supp. 397 (N.D. Ind. 1997), 117

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), 66–67

Johnson v. Fankell, 117 S. Ct. 1800 (1997), 90

Johnson v. Jones, 515 U.S. —, 115 S. Ct. 2151 (1995), 90, 91, 92, 93

Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994), 57

Juidice v. Vail, 430 U.S. 327 (1977), 105

Kalina v. Fletcher, 118 S. Ct. 502 (1997), 78

Keenan v. City of Philadelphia, 983 F.2d 459 (3d Cir. 1992), 112

Kentucky v. Graham, 473 U.S. 159 (1985), 56

Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180 (1952), 106

King v. Macri, 993 F.2d 294 (2d Cir. 1993), 112
TABLE OF CASES

123

Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), 23

Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S. 391 (1979), 52, 72

Lampkin v. District of Columbia, 27 F.3d 605 (D.C. Cir. 1994), 48

Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996), 68

Lankford v. Doe, 115 S. Ct. 70 (1994), 69

Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989), 56

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct.

1160 (1993), 57, 85

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954 F.2d 1054

(5th Cir. 1992), 57

Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961 (1995), 5, 6

Lewellen v. Metropolitan Gov’t of Nashville, 34 F.3d 345 (6th Cir. 1994), 21–22

Liebson v. New Mexico Corrections Dep’t, 73 F.3d 274 (10th Cir. 1996), 21

Livadas v. Bradshaw, 114 S. Ct. 2068 (1994), 48

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), 17

Los Angeles Police Protective League v. Gates, 995 F.2d 1469 (9th Cir. 1993), 55

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), 5, 9

Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), 15

L.W. v. Grubbs (L.W. I), 974 F.2d 119 (9th Cir. 1992), 23

Mahoney v. Kesery, 976 F.2d 1054 (7th Cir. 1992), 89

Maine v. Thiboutot, 448 U.S. 1 (1980), 43

Malley v. Briggs, 475 U.S. 335 (1986), 83

Manzano v. South Dakota Dep’t of Social Servs., 60 F.3d 505 (8th Cir. 1995), 87

Mark v. Borough of Hatboro, 51 F.3d 1137 (3d Cir. 1995), 55

Marsh v. Alabama, 326 U.S. 501 (1946), 10

Marshall v. Switzer, 10 F.3d 925 (2d Cir. 1993), 48

Martinez v. Board of Educ., 748 F.2d 1393 (10th Cir. 1984), 52

Mathews v. Eldridge, 424 U.S. 319 (1976), 16, 17

McCleary v. Navarro, 504 U.S. 966 (1992), 84

McClellan v. Carland, 217 U.S. 268 (1910), 106

McDonald v. City of West Branch, 466 U.S. 284 (1984), 97

McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992), 28

McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996), 58

McMillian v. Johnson, 88 F.3d 1554 (11th Cir. 1996), 93

McMillian v. Monroe County, 117 S. Ct. 1734 (1997), 53–54

McNabola v. Chicago Transit Auth., 10 F.3d 501 (7th Cir. 1993), 59

Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299 (1986), 109, 110

Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993), 17

Middlesex County Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423 (1982), 105

Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 (1981),

49–50

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984), 96

Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997), 15

Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993), 48
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Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), 69

Mireles v. Waco, 502 U.S. 9 (1991), 74

Mitchell v. Duval County Sch. Bd., 107 F.3d 837 (11th Cir. 1997), 23–24

Mitchell v. Forsyth, 472 U.S. 511 (1985), 81, 87, 88, 89, 90–91

Mitchum v. Foster, 407 U.S. 225 (1972), 103

Monell v. Department of Social Servs., 436 U.S. 658 (1978), 6, 55, 56, 58, 64, 65, 67, 114

Monroe v. Pape, 365 U.S. 167 (1961), 2, 6, 55, 97

Moore v. Sims, 442 U.S. 415 (1979), 105

Moose Lodge v. Irvis, 407 U.S. 163 (1972), 9

Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993), 112

Morrissey v. Brewer, 408 U.S. 471 (1972), 15

Moses H. Cone Memorial Hosp. v. Mercury Constr. Co., 460 U.S. 1 (1983), 107, 108

Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), 40, 52

Nabozny v. Podlesny, 92 F.3d 458 (7th Cir. 1996), 21

National Private Truck Council, Inc. v. Oklahoma Tax Comm’n, 515 U.S. 582 (1995), 41,

115

NCAA v. Tarkanian, 488 U.S. 179 (1988), 9

New Orleans Public Serv., Inc. v. Council of City of New Orleans (NOPSI), 491 U.S. 350

(1989), 102, 105

Nix v. Norman, 879 F.2d 429 (8th Cir. 1989), 55, 56

Nixon v. Fitzgerald, 457 U.S. 731 (1982), 78

Norfleet v. Arkansas Dep’t of Human Servs., 989 F.2d 289 (8th Cir. 1993), 20

NYLife Distributors, Inc. v. Adherence Group, Inc., 72 F.3d 371 (3d Cir. 1995), 108

O’Hare Truck Serv. Inc. v. Northlake, 116 S. Ct. 2353 (1996), 38–39

Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619 (1986), 105

Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), 15

O’Shea v. Littleton, 414 U.S. 488 (1974), 113, 114

Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), 59, 62

Owen v. City of Independence, 445 U.S. 622 (1980), 57, 58, 63, 65

Owens v. Okure, 488 U.S. 235 (1989), 95

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991), 111–12

Parratt v. Taylor, 451 U.S. 527 (1981), 4, 17, 68

Patsy v. Board of Regents of Fla., 457 U.S. 496 (1982), 105

Paul v. Davis, 424 U.S. 693 (1976), 14

Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), 63, 64, 65–66, 67

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984), 52

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), 44–45, 47

Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987), 105

Pickering v. Board of Educ., 391 U.S. 563 (1968), 39

Pierson v. Ray, 386 U.S. 547 (1967), 71, 73–74

Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), 22

Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996), 117

Polk County v. Dodson, 451 U.S. 312 (1981), 6, 7
TABLE OF CASES

125

Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995), 15

Preiser v. Rodriguez, 411 U.S. 475 (1973), 32

Quackenbush v. Allstate Ins. Co., 117 S. Ct. 1712 (1996), 102

Quern v. Jordan, 440 U.S. 332 (1979), 52

Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496 (1941), 99–100, 101, 102

Rankin v. McPherson, 483 U.S. 378 (1987), 40

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1983), 22

Regents of the University of California v. Doe, 117 S. Ct. 900 (1997), 52

Rendell-Baker v. Kohn, 457 U.S. 830 (1982), 9, 11

Rhyne v. Henderson County, 973 F.2d 386 (5th Cir. 1992), 113

Richardson v. McKnight, 117 S. Ct. 2100 (1997), 81

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), 26–27

Rizzo v. Goode, 423 U.S. 362 (1976), 68, 114

Robertson v. Wegmann, 436 U.S. 584 (1978), 112–13

Rochin v. California, 342 U.S. 165 (1952), 30

Rodriguez v. Phillips, 66 F.3d 470 (2d Cir. 1995), 56

Rosen v. Chang, 758 F. Supp. 799 (D.R.I. 1991), 52

Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992), 62

Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), 38

Sacramento, County of, v. Lewis, 523 U.S. —, 118 S. Ct. 1708 (1998), 18, 24–25, 26, 27,

28, 30–31, 86–87

Samuels v. Mackell, 401 U.S. 66 (1971), 104

San Francisco Arts & Athletics v. United States Olympic Comm., 483 U.S. 522 (1987), 9

Sandin v. Conner, 115 S. Ct. 2293 (1995), 14, 15, 31

Scheuer v. Rhodes, 416 U.S. 232 (1974), 79

Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), 86

Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996), 22

Seminole Tribe v. Florida, 116 S. Ct. 1114 (1996), 52

Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), 68–69, 113

Shelley v. Kraemer, 334 U.S. 1 (1948), 10

Siegert v. Gilley, 500 U.S. 226 (1991), 82, 85, 86, 87

Singer v. Fulton County Sheriff, 63 F.3d 110 (2d Cir. 1995), 35

Smith v. Robinson, 468 U.S. 992 (1984), 49, 50

Smith v. Wade, 461 U.S. 30 (1983), 57, 110

Steffel v. Thompson, 415 U.S. 452 (1974), 104, 115

Stevens, Estate of, v. City of Green Bay, 105 F.3d 1169 (7th Cir. 1997), 20, 22

Stoneking v. Bradford Area Sch. Dist. (Stoneking II), 882 F.2d 720 (3d Cir. 1989), 21

Stowell v. Ives, 976 F.2d 65 (1st Cir. 1992), 48

Stump v. Sparkman, 435 U.S. 349 (1978), 74

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), 109

Supreme Court of Va. v. Consumers Union of the United States, 446 U.S. 719 (1980),

72–73

Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), 58
SECTION 1983 LITIGATION

126

Suter v. Artist M., 503 U.S. 347 (1992), 46–47, 48

Swint v. Chambers County Comm’n, 115 S. Ct. 1203 (1995), 93

Tennessee v. Garner, 471 U.S. 1 (1985), 5, 28–29, 61

Tenny v. Brandhove, 341 U.S. 367 (1951), 72

Terry v. Ohio, 392 U.S. 1 (1968), 27

Thelma D. v. Board of Educ., 934 F.2d 929 (8th Cir. 1991), 61

Thompson v. Boggs, 33 F.3d 847 (7th Cir. 1994), 55

Tower v. Glover, 467 U.S. 914 (1984), 7

Trainor v. Hernandez, 431 U.S. 434 (1977), 105

Triad Assocs., Inc. v. Robinson, 10 F.3d 492 (7th Cir. 1993), 85

Turquitt v. Jefferson County, 137 F.3d 1285 (11th Cir. 1998), 54

TXO Prod. Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), 111

United Mine Workers v. Gibbs, 383 U.S. 715 (1966), 3

United States v. Kress, 58 F.3d 370 (8th Cir. 1995), 92

United States v. LaMere, 951 F.2d 1106 (9th Cir. 1991), 92

United States v. Lanier, 117 S. Ct. 1219 (1997), 18, 26, 83

United States v. Leon, 468 U.S. 897 (1984), 83

United States v. Mendenhall, 446 U.S. 544 (1980), 27

University of Tennessee v. Elliott, 478 U.S. 788 (1986), 97

Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), 31

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), 21

Vineyard v. County of Murray, 990 F.2d 1207 (11th Cir. 1993), 62

Vitek v. Jones, 445 U.S. 480 (1980), 14, 16

Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997), 21

Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995), 19–20, 21

Warlick v. Cross, 969 F.2d 303 (7th Cir. 1992), 89

Warren v. Dwyer, 906 F.2d 1339 (11th Cir. 1991), 89

Washington v. Glucksberg, 117 S. Ct. 2258 (1997), 18

Washington v. Harper, 494 U.S. 210 (1990), 14, 16

Waters v. Churchill, 114 S. Ct. 1878 (1994), 39, 40

Wells v. Brown, 891 F.2d 591 (6th Cir. 1989), 56

West v. Atkins, 487 U.S. 42 (1988), 5, 6

White v. Chambliss, 112 F.3d 731 (4th Cir. 1997), 20

Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995), 15

Whitley v. Albers, 475 U.S. 312 (1986), 26, 29, 30

Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498 (1990), 46, 47, 48, 50

Wilks v. Young, 897 F.2d 896 (7th Cir. 1990), 68

Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989), 53

Wilson v. Garcia, 471 U.S. 261 (1985), 95

Wilson v. Seiter, 501 U.S. 294 (1991), 35, 36

Wilton v. Seven Falls Co., 115 S. Ct. 2137 (1995), 107, 108
TABLE OF CASES

127

Wisniewski v. Kennard, 901 F.2d 1276 (5th Cir. 1990), 28

Wolff v. McDonnell, 418 U.S. 539 (1974), 14, 15

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), 23

Wood v. Strickland, 420 U.S. 308 (1975), 75

Wood v. Tompkins, 33 F.3d 600 (6th Cir. 1994), 48

Wooley v. Maynard, 430 U.S. 705 (1977), 104

Wooten v. Campbell, 49 F.3d 696 (11th Cir. 1995), 20

Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987), 45–46, 50

Wright v. Lovin, 32 F.3d 538 (11th Cir. 1994), 21

Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989), 110

Wyatt v. Cole, 504 U.S. 158 (1992), 81

Yeldell v. Cooper Green Hosp., 956 F.2d 1056 (11th Cir. 1992), 72

Young, Ex Parte, 209 U.S. 123 (1908), 51

Young v. Harper, 117 S. Ct. 1148 (1997), 15

Youngberg v. Romeo, 457 U.S. 307 (1982), 19, 25

Younger v. Harris, 401 U.S. 37 (1971), 99, 103–05

Yvonne L. v. New Mexico Dep’t of Human Servs., 959 F.2d 883 (10th Cir. 1992), 25

Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), 112

Zehner v. Trigg, 113 F.3d 459 (7th Cir. 1997), 116

Zinermon v. Burch, 494 U.S. 113 (1990), 13, 16, 17–18

Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993), 61
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Stanley Marcus, U.S. Court of Appeals for the Eleventh Circuit

Judge Bruce M. Selya, U.S. Court of Appeals for the First Circuit

Chief Judge Jean C. Hamilton, U.S. District Court for the Eastern District of Missouri

Judge Thomas F. Hogan, U.S. District Court for the District of Columbia

Chief Judge Richard P. Matsch, U.S. District Court for the District of Colorado

Chief Judge A. Thomas Small, U.S. Bankruptcy Court for the Eastern District of North Carolina

Magistrate Judge Virginia M. Morgan, U.S. District Court for the Eastern District of Michigan

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Rya W. Zobel

Deputy Director

Russell R. Wheeler

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 Director’s Office is responsible for the Center’s overall management and its relations with

other organizations, including state and foreign courts, through the Interjudicial Affairs Office. Its

Systems Innovation & Development Office provides technical support for Center education and

research. Communications Policy & Design edits, produces, and distributes all Center print and

electronic publications, operates the Federal Judicial Television Network, and through the Information Services Office maintains a specialized library collection of materials on judicial administration.

The Court Education Division develops and administers education and training programs and

services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial

services offices, and management training programs for court teams of judges and managers.

The Judicial Education Division develops and administers education programs and services

for judges, career court attorneys, and federal defender office personnel. These include orientation

seminars, continuing education programs, and special-focus workshops.

The Research Division undertakes empirical and exploratory research on federal judicial processes, court management, and sentencing and its consequences, often at the request of the Judicial

Conference and its committees, the courts themselves, or other groups in the federal system. Its

Federal Judicial History Office develops programs relating to the history of the judicial branch

and assists courts with their own judicial history programs.