42 U.S.C. § 1983

Every Person who Under Color of State Law Subjects or Causes to be Subjected Any Citizen or Other Person to the Deprivation of Any Rights, Privileges, or

Immunities Secured by the Constitution and laws [of the United

States] Shall be liable to the Party Injured in Action at Law, Suit in Equity, etc….

Some Basic Principles

Statute creates no substantive rights

merely creates remedyno respondeat superiorconcurrent jurisdiction in state

& federal courts

TWO KEY ELEMENTS OF 1983 CLAIM

1. Conduct Must Effect Deprivation of Right Secured by Federal Constitution or Laws Virginia v. Moore (U.S. 2008) Wilder v. Turner (10th Cir. 2007) United States v. Laville (3d Cir.

2007) Steen v. Myers (7th Cir. 2007)

2. Conduct Committed Under Color of State Law

Under Color of State Law

Lugar v. Edmondson Oil Co (1982) (state action within meaning of 14th amdt. = “under color of law” for § 1983 purposes)

Brentwood Academy v. Tennessee Secondary School Athletic Ass’n (2001) (discussing different tests; finding state action on basis of “pervasive entwinement”)

Under Color of State Law

Rosborough v. Management & Training Corporation (5th Cir. 2003)

Ibrahim v. Department of Homeland Sec. (9th Cir. 2008)

Arias v. U.S. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec. (D. Minn. 2008)

Monroe v. Pape (U.S. 1961)

“under color of law” includes “misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”

Individual vs. Official Capacity

individual capacity $$ out of official’s pocket

qualified immunity

punitive damages available

official capacitysuit against entity

no qualified immunity

no punitive damages

Individual vs. Official Capacity

Murphy v. Arkansas (8th Cir.)Young Apartments v. Town of

Jupiter (11th Cir. 2008)Powell v. Alexander (1st Cir.)Moore v. City of Harriman (6th

Cir.)Biggs v. Meadows (4th Cir.)

Individual vs. Official Capacity

Petty v. County of Franklin, Ohio (6th Cir. 2007)

no personal capacity suit where no allegations of Sheriff’s direct involvement in beating or denial of medical care

no official capacity suit (suit v. County) where no evidence of official policy or custom

Supervisory Liability

individual liability; no respondeat superior where liability based on inaction, is constructive

knowledge (should have known) enough?

Tardiff v. Knox County (D. Me. 2005) Sheriff Davey disputes that he had actual knowledge of

the unlawful custom and practice of strip searching detainees charged with misdemeanors without reasonable suspicion of concealing contraband or weapons. . . Regardless of his actual knowledge, the Court concludes that based on the undisputed evidence in the record he should have known that the practice was ongoing, and that, despite the change to the written policy in 1994 and the institution of new procedures in 2001, the practice had not been eliminated.

Supervisory Liability

See Iqbal v. Hasty (2d Cir. 2007), cert. granted sub nom Ashcroft v. Iqbal

Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials

11th Amendment local entities have no 11th Amdt. immunity States/ state agencies/ state officials in official

capacity will have 11th Amdt. immunity absent consent, waiver or valid abrogation

Congress did not abrogate states’ 11th Amdt. immunity through §1983 (Quern v. Jordan)

states/ state agencies/ state officials in official capacity are not “persons” under § 1983 (Will )

no consent or waiver as to § 1983

11th Amendment

state official may be sued in individual capacity for damages (Hafer v. Melo )

state official may be sued in official capacity to enjoin ongoing violation of federal right (Ex Parte Young )

McMillian v. Monroe County (1997)

Sheriff in Alabama is state official when performing law enforcement function

Depending on state and function:1. Sheriff may be state official2. Sheriff may be county official3. Sheriff may be independent

(suable) office with County joined as necessary party (IL)

McMillian v. Monroe County (1997)

Brewster v. Shasta County (9th Cir. 2001) (sheriff = county official)

Venegas v. County of L.A. (Cal. 2004) (sheriff = state official)

Most federal district courts in CA follow Brewster (See recent cases in outline)

But see Walker v. County of Santa Clara (N.D. Cal. 2005) (following Venegas)

Recent Cases

Poleo-Keefe v. Bergeron (D. Vt. Aug. 28, 2008)

While Vermont sheriffs have been held to be state actors in other cases, their roles as state actors have been limited to law enforcement and security duties. . . Sheriff Bergeron's supervisory duties here were different in nature from his law enforcement duties. He was not performing the traditional state role of keeping the peace; rather, he was acting as a employee supervisor. . . .Therefore, Sheriff Bergeron acted as a County official and sovereign immunity does not apply.

Recent Cases

Parker v. Bladen County (E.D.N.C. June 27, 2008)

Sheriff Bunn was proper defendant, not Bladen County, not Sheriff’s Dept., in suit alleging failure to train and supervise officers who used tasers on plaintiff

allegations are employment- and training related, and constitute personnel decisions or other law enforcement polices over which the Bladen County Sheriff (not Bladen County) maintains exclusive authority

Recent Cases

Argandona v. Lake County Sheriff’s Department (N.D. Ind. Feb. 13, 2007)

The court concludes that the Lake County Sheriff's Department, when acting in its law enforcement capacity, is neither an arm of the State nor a mere extension of Lake County. Rather, the Department is a separate municipal entity and subject to suit under §1983

Recent Cases

Gray v. Kohl (S.D. Fla. 2008) The holding in Abusaid that a County Sheriff

enforcing a county statute is not entitled to Eleventh Amendment immunity applies with equal force to a County Sheriff enforcing a state statute.

Here, there is no evidence that Sheriff Roth, the final policymaking authority in matters of law enforcement for Monroe County , ratified Officer Perez's arrests of the Gideons based on the fact that they were distributing Bibles within the school safety zone

Jones ex rel. Albert v. Lamberti (S.D. Fla. 2008) The Sheriff is the final policymaker for the operation

of the jails. The County does not control the Sheriff with respect to this function; therefore, the County cannot be liable under § 1983.

Recent Cases

Youngs v. Johnson (M.D. Ga. 2008) Sheriff has not, through Agreement with DOJ, sufficiently

relinquished to Muscogee County his state-derived authority for the operation of the jail to the extent that he loses his Eleventh Amendment immunity

Because the Court finds that the sheriff is an arm of the county in providing medical care in a county jail, Sheriff Johnson is not entitled to Eleventh Amendment immunity

Under Georgia law, the provision of medical care to county inmates is a county function. The County can certainly delegate that function to the Sheriff, which the record establishes was done here, but when it does so, it does not relinquish its ultimate responsibility for that function. The Sheriff simply becomes the final policymaker for the County regarding the promulgation of appropriate policies and procedures for providing adequate medical care to inmates at the county jail

Methods of Establishing Local Government Liability

1. Officially adopted policy2. custom or practice3. failure to train, supervise,

discipline, adequately screen4. attribution of decision or act

of final policymaker to entity

Formally Adopted Policy

Maddux v. Officer One (5th Cir. 2004)

Richards v. Janis (E.D. Wash. 2007) Meir v. McCormick (D. Minn. 2007) Rauen v. City of Miami (S.D. Fla.

2007) Tardiff v. Knox County (D.Me.

2005)

Whose policy is it?local government enforcing state law

Cooper v. Dillon (11th Cir. 2005)Richman v. Sheahan (7th Cir.

2001)Garner v. Memphis Police Dept.

(6th Cir. 1993)Vives v. City of New York (2d Cir.

2008)

Whose policy is it?Inter-agency agreementsprivate prison/healthcare corps

Young v. City of Little Rock (8th Cir. 2001) Ford v. City of Boston (D. Mass. 2001) Deaton v. Montgomery County (6th Cir. 1993)

Sumlin v. Gibson (N.D. Ga. 2008) Daniels v. Prison Health Serv. (M.D. Fla. 2006) Martin v. CCA (W.D. Tenn. 2006) Herrera v. County of Santa Fe (D.N.M. 2002)

Custom or Usage

Lopez v. City of Houston (S.D. Tex. 2008)

Thomas v. Baca (C.D. Cal. 2007)

Jackson v. Marion County Sheriff’s Dep’t. (S.D. Ind. 2005)

Tardiff v. Knox County (D. Me. 2005)

Custom or Usage

Code of Silence CasesBaron v. Suffolk County Sheriff’s Dep’t. (1st Cir. 2005)

Blair v. City of Pomona (9th Cir. 2000)

Sharp v. Houston (5th Cir. 1999)Jeffes v. Barnes (2d Cir. 2000)

Custom or Usage

But see Garcetti v. Ceballos, 126 S.Ct. 1951 (2006)

When public employees make statements pursuant to their official duties, they are not speaking as citizens for 1st Amdt. purposes, and such speech may be sanctioned by employer [See Garcetti handout]

Custom or Usage: Policymaker Must Have Notice

Constructive knowledge enoughBaron v. Suffolk County (1st Cir. 2005)

One incident not enough to give noticeGrieveson v. Anderson (7th Cir. 2008) Thomas v. Chattanooga (6th Cir. 2005)

Even pattern not enough unless show policymaker had actual or constructive noticePineda v. Houston (5th Cir. 2002) Latuszkin v. Chicago (7th Cir. 2001)

Failure to have a written policy

Brumfield v. Hollins (5th Cir. 2008) Brumfield places great weight on the fact that Sheriff

Stringer had no written policies and procedures at the Old Jail similar to the ones at a nearby facility known as the ‘New Jail.’

From this, she concludes that Sheriff Stringer implemented no policies at all.

validity of prison policies is not dependent on whether they are written or verbal. A policy is a policy.

verbal policies existed concerning inmate supervision and medical care, and Sheriff Stringer, Bryant, Louge, Hollins, and Thornhill all testified to that effect.

Failure to Train, Discipline, etc.

City of Canton deliberate indifference1. Obvious need to train2. constructive notice of need

to train See, e.g., Sornberger v. City

of Knoxville (7th Cir. 2006)

Failure to Train, Discipline, etc.

can’t be too obvious Walker v. City of New York (2d Cir.

1992) Atkins v. County of Riverside (9th

Cir. 2005) Carr v. Castle (10th Cir. 2003) Hernandez v. Borough of Palisades

Park Police Dep’t (3d Cir. 2003) Barney v. Pulsipher (10th Cir. 1998)

Obviousness Cases

Thompson v. Connick (5th Cir. Dec. 19, 2008)

Gregory v. City of Louisville (6th Cir. 2006)

Young v. Providence (1st Cir. 2005)Brown v. Gray (10th Cir. 2000)Allen v. Muskogee (10th Cir. 1997)

Not so obvious

St. John v. Hickey (6th Cir. 2005) Ross v. Town of Austin (7th Cir.

2003) Febus-Rodriguez (1st Cir. 1994) Gold v. City of Miami (11th Cir.

1998) Lewis v. City of West Palm Beach

(S.D. Fla. 2008)

Constructive Notice Cases

Young v. Providence (1st Cir. 2005)

Olsen v. Layton Hills(10th Cir. 2002)

Beck v. Pittsburgh (3d Cir. 1996 )

Vann v. New York (2d Cir. 1995)

Jail suicide cases

Whitt v. Stephens County (5th Cir. 2008) Short v. Smoot (4th Cir. 2006) Gray v. City of Detroit (6th Cir. 2005) Crocker v. County of Macomb (6th Cir. 2005) Payne v. Churchich (7th Cir. 1998) Cook v. Sheriff of Monroe County (11th Cir.

2005) Tittle v. Jefferson County (11th Cir. 1994)

But see Wever v. Lincoln County (8th Cir. 2004) Woodward v. CMS (7th Cir. 2004)

“Bad Hiring/Screening” Cases

Bryan County (U.S. 1997)single decision by final

policymaker (Sheriff)particular constitutional violation

must be “plainly obvious consequence” of inadequate screening or hiring decision

Post-Brown Cases

Hardeman v. Kerr County, Tex (5th Cir. 2007)

Whitewater v. Goss (10th Cir. 2006) Doe v. Magoffin County Fiscal Court

(6th Cir. 2006) Crete v. Ciavola (1st Cir. 2005) Estate of Davis v. City of North

Richland Hills (5th Cir. 2005)

Derivative Nature of Liability

City of Los Angeles v. Heller (1986) Willis v. Neal (6th Cir. 2007) Best v. Cobb County, Ga. (11th Cir.

2007) Hicks v. Moore (11th Cir. 2005) Young v. City of Providence (1st Cir.

2005) Crocker v. County of Macomb (6th Cir.

2005) Trigalet v. City of Tulsa (10th Cir. 2001)

Liability Based on Conduct of Final Policymakers

Pembaur/Praprotnik/JettWho is Final Policymaker =

Question of State LawGenerally, one whose decisions

are not reviewable by another

Liability Based on Conduct of Final Policymakers

Hampton Co. Nat. Sur., LLC v. Tunica County, Miss. (5th Cir. 2008)

Bruce v. Beary (11th Cir. 2007)Ford v. County of Grand Traverse

(6th Cir. 2008)Harper v. City of Los Angeles (9th

Cir. 2008)

Liability Based on Conduct of Final Policymakers

Roe v. City of Waterbury (2d Cir. 2008)

Bolton v. City of Dallas (5th Cir. 2008)

Auriemma v. Rice (7th Cir. 1992) Thomas v. Roberts (11th Cir. 2001) Meyers v. Delaware County, Ohio

(S.D. Ohio 2008)

Liability Based on Conduct of Final Policymakers

But see Simmons v. Uintah Health Care Special District (10th Cir. 2007)

Actions taken by a municipality's final policymakers, even in contravention of their own written policies, are fairly attributable to the municipality and can give rise to liability.

DeShaney : S/D/P & Affirmative Duty to Protect

DeShaney (1989) : no general affirmative duty to protect citizens from acts of private violence

Exceptions

1. special relationship/custody cases2. state-created danger cases

While State was aware of dangers Joshua faced, it played no part in creation of those dangers nor did State make him more vulnerable to those dangers

Custody Cases

Jackson v. Schultz (6th Cir. 2005) The “custody exception” triggers a

constitutional duty to provide adequate medical care to incarcerated prisoners, those involuntarily committed to mental institutions, foster children, pre-trial detainees, and those under “other similar restraint of personal liberty.”

moving an unconscious patient into an ambulance does not create “custody”

Workplace Cases

Collins v. City of Harker Hts (1992)Due Process Clause does not impose an

independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace

Waybright v. Frederick County (4th Cir. 2008) Lombardi v. Whitman (2d Cir. 2007) Witkowski v. Milwaukee County (7th Cir. 2007) But see Hawkins v. Holloway (8th Cir. 2003)

Workplace Cases : Prison Employees

Prison employees are not like prisoners Sperle v. Michigan DOC (6th Cir. 2002) Wallace v. Adkins (7th Cir. 1997) Liebson v. New Mexico Corrections

Dept. (10th Cir. 1996) Martinez v. Uphoff (10th Cir. 2001) White v. Lemacks (11th Cir. 1999)

State-Created-Danger Cases

Common Themes1. action v. inaction: look for

affirmative act by state actor creating or increasing risk as to

2. known or identifiable victim or class (not public at large)

3. conduct must “shock the conscience”

State-Created Danger Cases

Kennedy v. City of Ridgefield (9th Cir. 2006)

Pena v. DePrisco (2d Cir. 2005) Kneipp v. Tedder (3d Cir. 1996) Draw v. City of Lincoln Park (6th

Cir. 2007) Jones v. Reynolds (6th Cir. 2006)

Confidential Informant Cases

Matican v. City of New York (2d Cir. 2008) noncustodial relationship between a

confidential informant and police, absent more, is not a special relationship

planning a sting is affirmative conduct that could give rise to state-created danger

but conduct here did not “shock the conscience”

Majority of circuits find no affirmative duty owed to “voluntary” CIs

Domestic Violence Cases

Town of Castle Rock v. Gonzales (U.S. 2005)

respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband

In light of today's decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations.