Section 1983 Litigation Second Edition Martin A. Schwartz Touro College, Jacob D. Fuchsberg Law Center Kathryn R.

Urbonya The College of William and Mary School of Law Federal Judicial Center 2008 This Federal Judicial Center publication was undertaken in furtherance of the Ce nters statutory mission to develop and conduct education programs for the judicia l branch. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.

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Contents Preface and Acknowledgments vii I. Introduction to 1983 Litigation 1 A. The Stat ute 1 B. Historical Background 1 C. Nature of 1983 Litigation 3 D. Jury Instruct ions 5 II. Elements of Claim, Functional Role, Pleading, and Jurisdiction 6 A. E lements of the 1983 Claim 6 B. Functional Role of 1983 7 C. Pleading 1983 Claims 8 D. Federal Court Jurisdiction 13 1. Subject-Matter Jurisdiction 13 2. RookerFe ldman Doctrine 14 3. Supplemental Jurisdiction 17 4. Removal Jurisdiction 19 E. State Court Jurisdiction 19 III. Section 1983 Plaintiffs 21 A. Persons Entitled to Bring Suit Under 1983 21 B. Standing 21 IV. Constitutional Rights Enforceable Under 1983 24 A. Generally 24 B. Selected Constitutional Rights: Due Process 28 C. Procedural Due Process 28 1. Two-Step Approach 28 2. Property 29 3. Liberty: Prisoners Rights Cases 30 4. Liberty: Defamation 33 5. Procedural Safeguards: Th e ParrattHudson Doctrine 33 D. Substantive Due Process Claims 36 1. Shocks the Co nscience 37 2. Professional Judgment 38 3. DeShaney and Affirmative Duty Cases 3 9 a. Functional Custody 40 b. State-Created Danger 43 E. Use of Force by Governm ent Officials 45 1. Unreasonable Force Claims Under the Fourth Amendment 47 a. T ennessee v. Garner 48 iii

Section 1983 Litigation b. Graham v. Connor 49 c. Scott v. Harris 50 d. Other Fourth Amendment Excessive Force Issues 55 2. Prisoner Excessive Force Claims Under the Eighth Amendment 5 7 3. Pretrial Detainee Excessive Force Claims Under the Fourteenth Amendment 59 F. Arrests and Searches 60 G. Malicious Prosecution Claims Under the Fourth Amen dment 64 H. Conditions-of-Confinement Claims Under the Eighth Amendment 67 I. Fi rst Amendment Claims 70 1. Political Patronage Claims 70 2. Public Employee Free Speech Retaliation Claims 71 3. Prisoner Retaliation Claims 73 4. Retaliatory P rosecution 74 V. Enforcement of Federal Statutes Under 1983 75 A. Enforcement of Federal Rights 75 B. Specific Comprehensive Scheme Demonstrating Congressional In tent to Foreclose 1983 Remedy 80 C. Current Supreme Court Approach 82 D. Enforce ment of Federal Regulations Under 1983 83 VI. Section 1983 Defendants 84 VII. Co lor of State Law and State Action 86 A. State and Local Officials 86 B. State Ac tion Tests 88 1. Symbiotic Relationship 89 2. Public Function 89 3. Close Nexus Test 90 4. Joint Participation 91 5. Pervasive Entwinement 93 VIII. Causation 94 IX. Capacity of Claim: Individual Versus Official Capacity 96 X. Municipal Liab ility 98 A. Officially Promulgated Policy 100 B. Municipal Policy Makers 101 1. Authority and Liability 101 2. State Versus Municipal Policy Maker 107 iv

Contents C. Custom or Practice 108 D. Inadequate Training 112 E. Inadequate Hiring 116 F. Pleading Municipal Liability Claims 118 XI. Supervisory Liability 119 XII. Rela tionship Between Individual and Municipal Liability 123 XIII. State Liability: T he Eleventh Amendment 125 A. Generally 125 B. State Liability in 1983 Actions 12 5 C. Personal Capacity Claims 127 D. Municipal Liability; The Hybrid Entity Prob lem 128 E. Eleventh Amendment Waivers 130 F. Eleventh Amendment Appeals 130 XIV. Personal Capacity Claims: Absolute Immunities 131 A. Absolute Versus Qualified Immunity: The Functional Approach 131 B. Judicial Immunity 131 C. Prosecutorial Immunity 135 D. Witness Immunity 140 E. Legislative Immunity 140 XV. Personal Li ability: Qualified Immunity 143 A. Who May Assert Qualified Immunity? 145 B. Cle arly Established Federal Law 146 1. Application of Qualified Immunity to Fourth Amendment Claims 147 2. Intent or Motive as Element of Constitutional Claims 150 C. Procedural Aspects of Qualified Immunity 150 1. Qualified Immunity Summary J udgment Motions Before and After Discovery 152 2. Role of Judge and Jury 154 3. Court Should First Decide Constitutional Issue 155 D. Qualified Immunity Appeals 156 XVI. Exhaustion of State Remedies 158 A. State Judicial Remedies: ParrattHud son Doctrine 158 B. Preiser, Heck, and Beyond 158 C. State Administrative Remedi es; Prison Litigation Reform Act 161 D. Notice of Claim 163 E. Ripeness 163 v

Section 1983 Litigation XVII. Preclusion Defenses 165 A. State Court Judgments 165 B. Administrative Res Judicata 166 C. Arbitration Decisions 166 XVIII. Statute of Limitations 167 A. Limitations Period 167 B. Relation Back 167 C. Accrual 168 D. Tolling 173 XIX. S urvivorship and Wrongful Death 175 A. Survivorship 175 B. Wrongful Death 175 XX. Abstention Doctrines 177 A. Pullman Abstention 177 B. Younger Abstention 179 C. Colorado River Abstention 183 D. Burford Abstention 186 E. Domestic Relations D octrine 188 F. Tax Injunction Act 188 XXI. Monetary Relief 190 A. Nominal and Co mpensatory Damages 190 B. Punitive Damages 192 C. Release-Dismissal Agreements 1 94 D. Indemnification 194 E. Prison Litigation Reform Act 195 XXII. Attorneys Fee s 196 A. Prevailing Parties 196 B. Computation of Fee Award 201 C. Other Fee Iss ues 204 For Further Reference 207 Table of Cases 209 Index 235 vi

Preface and Acknowledgments This monograph analyzes the fundamental issues that arise in litigation under 42 U.S.C. 1983, the statute for redressing constitutional and federal statutory vi olations, and the case law interpreting those issues. Research for this edition concluded with the October 2007 Supreme Court term and covers courts of appeals decisions reported through June 30, 2008. The authors gratefully acknowledge the valuable assistance and cooperation of Kris Markarian, legal editor, and Geoffr ey Erwin, editor, at the Federal Judicial Center. The authors also express appre ciation for the valuable manuscript review and suggestions provided by the Honor able Margaret J. Kravchuk, U.S. Magistrate Judge (District of Maine). vii

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I. Introduction to 1983 Litigation A. The Statute Section 1983 of Title 42 of the U.S. Code (42 U.S.C. 1983) is a vital part of Am erican law. The statute authorizes private parties to enforce their federal cons titutional rights, and some federal statutory rights, against defendants who act ed under color of state law. Section 1983 reads as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or cause s to be subjected, any citizen of the United States or other person within the j urisdiction 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 t hat in any action brought against a judicial officer for an act or omission take n in such officers judicial capacity, injunctive relief shall not be granted unle ss 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 Colu mbia.1 B. Historical Background When interpreting 1983, the Supreme Court has considered congressional intent, c ommon-law practices, policy concerns, and principles of federalism. The Supreme Court has relied on the historical background behind the statute in several majo r decisions interpreting 1983.2 Congress passed 42 U.S.C. 1983 in 1871 as sectio n 1 of the Ku Klux Klan Act. The statute, however, did not emerge as a tool for 1. 42 U.S.C. 1983 (1996). 2. See, e.g., Will v. Mich. Dept of State Police, 491 U .S. 58, 6671 (1989) (states and state agencies are not suable persons); Patsy v. Bd. of Regents, 457 U.S. 496, 5010 2 (1982) (exhaustion of state remedies not required under 1983); Quern v. Jordan , 440 U.S. 332, 34142 (1979) (Congress enacted original version of 1983 pursuant to 5 of Fourteenth Amendment but did not intend to override Eleventh Amendment); Monell v. Dept of Soc. Servs., 436 U.S. 658, 69091 (1978) (municipalities are sua ble persons under 1983 but not on basis of respondeat superior liability); Monro e v. Pape, 365 U.S. 167, 17071 (1961) ( 1983 provides federal remedy independent o f state law remedies and is available even when state official acted in violatio n of state law), revd on other grounds, Monell v. Dept of Soc. Servs., 436 U.S. 65 8 (1978). 1

Section 1983 Litigation checking abuses by state officials until 1961, when the Supreme Court decided Mo nroe v. Pape.3 In Monroe, the Court articulated three purposes for passage of th e statute: (1) to override certain kinds of state laws; (2) to provide a remedy whe re state law was inadequate; and (3) to provide a federal remedy where the state r emedy, though adequate in theory, was not available in practice. 4 The Monroe Cou rt resolved two important issues that allowed 42 U.S.C. 1983 to become a powerfu l statute for enforcing rights secured by the Fourteenth Amendment. First, it he ld that actions taken by state governmental officials in carrying out their offi cial responsibilities, even if contrary to state law, were nevertheless actions taken under color of law. 5 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.6 In short, the Court in Monroe held that Congress enacted 1983 to pro vide an independent federal remedy supplemental to available state law remedies. The federal judicial forum was necessary to vindicate federal rights because, a ccording to Congress in 1871, state courts could not protect Fourteenth Amendmen t rights because of their prejudice, passion, neglect, [and] intolerance.7 With Mo nroe opening the door to the federal courthouse, constitutional litigation again st state officials developed. Later, plaintiffs seeking monetary damages sued no t only state officials but began to sue cities and counties as well. 8 They also sought prospective injunctive relief against state officials. Ultimately, the f ederal court became the place to reform state and local governmental practices. In Monell v. Department of Social Services, 9 the Supreme Court overruled the pa rt of Monroe that had found that Congress did not intend to subject municipal en tities to liability under 1983. Employing a fresh analysis of the legislative hist ory of the Civil Rights Act of 1871, the Court found that Congress intended to s ubject municipal entities to 3. 365 U.S. 167 (1961), revd on other grounds, Monell v. Dept of Soc. Servs., 436 U.S. 658 (1978). 4. Monroe, 365 U.S. at 17374. 5. Id. at 186. 6. Id. at 18387. 7. Id. at 180. 8. See Monell v. Dept of Soc. Servs., 436 U.S. 658, 69091 (1978). 9. 4 36 U.S. 658 (1978). 2

I. Introduction to 1983 Litigation liability under 1983, though not on the basis of respondeat superior. Monell hel d that Congress intended that municipal entities would be liable under 1983 only when an officials unconstitutional action carried out a municipal policy or prac tice. 10 In Hudson v. Michigan, 11 the Supreme Court acknowledged that 1983 has undergone a steady expansion since Monroe, including the recognition of municipal liability claims in Monell and the availability of attorneys fees under 42 U.S.C. 1988(b). The Court in Hudson rejected the exclusionary rule for violations of t he Fourth Amendment knock-and-announce rule, in part because a 1983 damages clai m provided an adequate alternative remedy. 12 The Court emphasized the importanc e of the fee remedy: Since some civil-rights violations would yield damages too small to justify the expense of litigation, Congress has authorized attorneys fees for civil-rights pl aintiffs. This remedy was unavailable in the heyday of our exclusionary-rule jur isprudence, because it is tied to the availability of a cause of action. For yea rs after Mapp, very few lawyers would even consider representation of persons who had civil rights claims against the police, but now much has changed. Citizens an d lawyers are much more willing to seek relief in the courts for police miscondu ct. The number of public-interest law firms and lawyers who specialize in civil-r ights grievances has greatly expanded.13 In short, the Court affirmed 1983s goal in providing a federal remedy for unconst itutional state action and 1988s role in granting attorneys fees to foster 1983 li tigation. C. Nature of 1983 Litigation A wide array of claimants file 1983 lawsuits in federal and state courts, includ ing alleged victims of police misconduct; prisoners; present and former public e mployees and licensees; property owners; and applicants for and recipients of pu blic benefits. Claimants may name as de10. See infra Part X. 11. 126 S. Ct. 2159, 2167 (2006). 12. Id. (citing Michael Avery, David Rudovsky, & Karen Blum, Police Misconduct: Law and Litigation, p. V (3d ed. 2005)). 13. Id. at 2167. 3

Section 1983 Litigation fendants state and municipal officials, municipal entities, and private parties, who act under color of state law. Section 1983 litigation often requires courts to examine complex, multifaceted issues. Courts may have to interpret the feder al Constitution, federal statutes (including 1983 itself), and even state law. I n addition, even if a plaintiff establishes a violation of a federally protected right, she may not necessarily obtain relief. Courts may deny relief after reso lving numerous other issues: jurisdictional questions, such as the RookerFeldman doctrine, the Eleventh Amendment, and standing and mootness; affirmative defense s, such as absolute and qualified immunity; and other issues, such as the statut e of limitation, preclusion, and various abstention doctrines. The three most re curring issues in 1983 cases are (1) whether a plaintiff has established the vio lation of a federal constitutional right; (2) whether qualified immunity protect s an official from personal monetary liability; and (3) whether a plaintiff has established municipal liability through enforcement of a municipal policy, a mun icipal practice, or a decision of a municipal policy maker. The last stage of a 1983 action is normally an application by the prevailing party for attorneys fees under the Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C. 1988(b). Sec tion 1988 fee applications often generate a wide range of issues, including whet her the plaintiff was a prevailing party; whether special circumstances justify the courts denying fees to a prevailing plaintiff; whether a prevailing defendant sho uld be awarded fees; what constitutes a reasonable hourly rate; what constitutes a reasonable number of billable hours; and whether the circumstances justify an upward or downward departure from the lodestar (the number of reasonable hours ti mes the reasonable hourly market rates for lawyers in the community with compara ble background and experience). 14 Each year the federal courts face dockets fil led with huge numbers of 1983 cases. The lower court decisional law is voluminou s. Courts should therefore be aware that there might be conflicts in approaches among the circuits. 14. Blum v. Stenson, 465 U.S. 886 (1984). 4

I. Introduction to 1983 Litigation D. Jury Instructions Because 1983 litigation is frequently multifaceted and complex, the jury instruc tions may encompass a wide range of issues and run for many pages. In addition t o the general instructions used for civil actions, such as the preponderance-ofthe-evidence standard, instructions are needed to explain the function of 1983, the elements of the 1983 claim for relief, the elements of the constitutional cl aims, causation, and state action. Instructions may also be necessary for such i ssues as municipal liability, supervisory liability, and damages. The district c ourts challenge is to provide the jury with complete and accurate instructions in language lay jurors can understand.15 15. For an extensive compilation of 1983 instructions with commentary and annota tions, see Martin A. Schwartz & George C. Pratt, Section 1983 Litigation: Jury I nstructions (2007). 5

Section 1983 Litigation II. Elements of Claim, Functional Role, Pleading, and Jurisdiction A. Elements of the 1983 Claim Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimants federally pr otected rights. The Supreme Court has identified two elements for a plaintiffs pr ima facie case in 1983 litigation: The plaintiff must allege both (1) a deprivat ion of a federal right and (2) that the person who deprived the plaintiff of tha t right acted under color of state law.16 In the authors view, courts often exami ne four major elements for a 1983 claim. The plaintiff must establish 1. conduct by a person; 2. who acted under color of state law; 3. proximately causing; 4. a de privation of a federally protected right. In addition, if the plaintiff is seeki ng to establish municipal liability, she must show that the deprivation of her f ederal right was attributable to the enforcement of a municipal custom or policy . 17 The plaintiff bears the burden of establishing each element of the claim fo r relief by a preponderance of the evidence. 18 16. West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978); Gomez v. Toledo, 446 U.S. 635, 640 (1980). If a 1983 complaint does not state a constitutional claim it is subject to dismissal under Rule 12(b)(6), not Rule 12(b)(1). Doe v. Metro. Police Dept, 445 F.3d 460, 467 (D.C. Cir. 2006). 17. See infra Part X. 18. Valance v. Wisel, 110 F.3d 1269, 127879 (7th Cir. 1997 ); Larez v. Holcomb, 16 F.3d 1513, 151718 (9th Cir. 1994); Ruggiero v. Krzeminski , 928 F.2d 558, 562 (2d Cir. 1991); Shaw v. Leatherberry, 706 N.W. 2d 299, 304 ( Wis. 2005). See also Hartman v. Moore, 547 U.S. 250, 26566 (2006) (requiring plai ntiff to plead and prove absence of probable cause as an element of a Bivens First Amendment retaliatory prosecution claim); Crawford-El v. Britton, 523 U.S. 574, 594 (1998) (rejecting imposition of clear and convincing evidence burden on pla intiffs who assert wrongful motive claim subject to qualified immunity defense r aised on summary judgment); Clark v. Mann, 562 F.2d 1104, 1117 (8th Cir. 1977) ( 1983 plaintiffs ordinarily retain the burden of proof throughout the trial). See g enerally Schaffer v. Weast, 546 U.S. 49, 57 (2005) (Individuals With Disabilitie s Education Act (IDEA) action) (referring to default rule that plaintiffs bear the burden of persuasion regarding the essential aspects of their claims). 6

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction The text of 1983 does not state that a plaintiff must prove that an official act ed with a particular state of mind.19 However, the particular constitutional rig ht may require the plaintiff to establish that the defendant acted with a partic ular state of mind. For example, a complaint stating a violation of the substant ive due process component of the Fourteenth Amendment or a violation of procedur al due process will require the plaintiff to establish that a state or local off icial intentionally or deliberately caused a deprivation of life, liberty, or pr operty; negligent conduct will not suffice. 20 A complaint raising racial- or ge nder-based discrimination will invoke heightened judicial scrutiny only if a pla intiff establishes intentional discrimination.21 A prisoners complaint asserting the denial of adequate medical care under the Eighth Amendment would require a p risoner to demonstrate that he was a victim of deliberate indifference to a seri ous medical need; 22 in other words, medical malpractice does not establish a co nstitutional violation merely because the plaintiff is a prisoner.23 Because pla intiffs may seek enforcement of a wide range of federal constitutional rights un der 1983,24 courts should evaluate each claim to determine whether it requires t he plaintiff to prove that the defendant acted with a particular state of mind. B. Functional Role of 1983 Section 1983 does not itself create or establish any federally protected right. Instead, it creates a cause of action for plaintiffs to enforce federal rights c reated elsewherefederal rights created by the federal Constitution or, in some ca ses, by other federal statutes. 25 In other 19. Parratt v. Taylor, 451 U.S. 527, 534 (1981), overruled on other grounds by D aniels v. Williams, 474 U.S. 327, 328 (1986). 20. Daniels, 474 U.S. at 32830. See also Davidson v. Cannon, 474 U.S. 344, 347 (1986). See also infra Part IV.D. 21 . See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 , 265 (1977) (race); Washington v. Davis, 426 U.S. 229, 24042 (1976) (race); Pers onnel Admr of Mass. v. Feeney, 442 U.S. 256, 274 (1979) (gender). 22. Estelle v. Gamble, 429 U.S. 97, 106 (1976). 23. Id. 24. See Wilson v. Garcia, 471 U.S. 261, 273 (1985). See infra Part IV. 25. Albright v. Oliver, 510 U.S. 266, 271 (1994) ; Graham v. Connor, 490 U.S. 386, 393 94 (1989); City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979) ( 1983 creates no substantive rights; it 7

Section 1983 Litigation words, 1983 fulfills the procedural or remedial function of authorizing plaintif fs to assert a claim for relief against a defendant who, acting under color of s tate law, violated the plaintiffs federal rights. In addition, 1983 provides the exclusive available federal remedy for violations of federal constitutional righ ts under color of state law. Thus, plaintiffs may not avoid the limitations of a 1983 claim for relief by asserting a claim directly under the Constitution. 26 C. Pleading 1983 Claims Federal 1983 complaints are governed by the notice pleading standard established b y the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 8(a) pro vides that the complaint must set forth (1) a short and plain statement of the gr ounds on which the courts jurisdiction depends, (2) a short and plain statement o f the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. 27 Although Federal Rule of Civil Pro cedure 9 requires that certain issues be pled with particularity (e.g., fraud and mistake), it does not apply to 1983 claims. In fact, Rule 9(a) provides that [m]a lice, intent, knowledge, and other conditions of mind of a person may be averred generally. State-ofmind issues arise in some 1983 cases depending on the particu lar constitutional claim alleged, such as intentional race discrimination merely provides remedies for deprivations of rights established elsewhere); Baker v. McCollan, 443 U.S. 137, 140, 144 n.3 (1979). 26. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989); Wax n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000); Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 732 n.3 (7t h Cir. 1994); Azul-Pacifico, Inc. v. City of Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), cert. denied, 506 U.S. 1081 (1993); Santiago v. N.Y. State Dept of C orr. Servs., 945 F.2d 25, 3031 (2d Cir. 1991); Tarpley v. Greene, 684 F.2d 1, 911 (D.C. Cir. 1982); Pauk v. Bd. of Trustees of City Univ. of New York, 654 F.2d 85 6, 865 (2d Cir. 1981). 27. The Supreme Court has held that pro se complaints are subject to less stringent standards than formal pleadings drafted by lawyers and should be liberally construed in the plaintiffs favor. Hughes v. Rowe, 449 U.S. 5 , 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972). Accord Erickson v. Pardu s, 127 S. Ct. 2197 (2007). District courts should read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). However, pro se status does not exempt a party from compliance with procedural rules. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). 8

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction under the Equal Protection Clause of the Fourteenth Amendment and prisoner Eight h Amendment challenges to conditions of confinement.28 In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,29 the Supreme Court rejected a heightened pleading requirement for 1983 municipal liability claims because Rule s 8 and 9 do not authorize it. The Court held that the generally applicable noti ce pleading standard set forth in the Federal Rules of Civil Procedure governs 1 983 municipal liability claims. The notice pleading standard is by no means onero us; instead, it is designed to ensure that the complaint will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. 30 The Supreme Court similarly rejected a heightened pleading standard for Title V II (of the Civil Rights Act of 1964) and Age Discrimination in Employment Act (A DEA) claims in Swierkiewicz v. Sorema, N.A.31 As in Leatherman, the Court determ ined that the notice pleading standard created by Rule 8 applies to Title VII an d ADEA claims. The Courts decisions in Leatherman and Swierkiewicz strongly suppo rt the conclusion that notice pleading applies to all 1983 claims.32 The Court i n Leatherman, however, left open whether a heightened pleading standard applies to claims asserting individual liability, specifically personal capacity claims in which officials may assert the affirmative defense of qualified immunity. App lying the rationale of 28. Erickson, 127 S. Ct. 2197 (prisoner complaint asserting Eighth Amendment med ical treatment claim satisfied notice pleading standard); Kikumura v. Osagie, 46 1 F.3d 1269, 1294 (10th Cir. 2006) (prisoner Eighth Amendment deliberate indiffe rence medical treatment claim: plaintiff is merely required to provide a short and plain statement of his Eighth Amendment claims, Fed. R. Civ. P. 8(a), and [m]alic e, intent, knowledge, and other conditions of mind of a person may be averred ge nerally in the complaint, Fed. R. Civ. P. 9(b); allegations that defendant knew that plaintiff require[d] prompt medical attention and . . . that delay would exacerba te [his] health problem, but deliberately disregarded that risk satisfied pleading re quirement of Rule 8(a) for the subjective component of a deliberate indifference claim). 29. 507 U.S. 163, 164 (1993). 30. Slade v. Hampton Roads Regl Jail, 407 F .3d 243, 252 (4th Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 31. 534 U.S. 506 (2002). 32. See Erickson, 127 S. Ct. at 2200; Jones v. Bock, 1 27 S. Ct. 910, 91920 (2007); Hill v. McDonough, 126 S. Ct. 2096, 210304 (2006); Ed ucadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 6667 (1st Cir. 2004 ); Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002). 9

Section 1983 Litigation Leatherman and Swierkiewicz, the great majority of courts of appeals have held t hat, like other 1983 claims, the notice pleading standard applies to personal ca pacity claims subject to qualified immunity.33 The courts have several tools to eliminate meritless personal capacity claims early in the litigation, including ordering the plaintiff to file either a detailed reply to the defendants answer u nder Federal Rule of Civil Procedure 7, or a more definite statement under Rule 12(e), or, under Rule 26(c), tailoring discovery to protect the defendant from u nnecessary embarrassments or burdens.34 Although a conspiracy is not an element of a 1983 claim for relief, 1983 plaintiffs sometimes plead conspiracies to (1) establish state action through a conspiracy between a private party and a public official, 35 (2) enhance the probability of recovering punitive damages,36 or ( 3) broaden the potential scope of admissible evidence. 37 The federal courts hav e traditionally imposed a heightened pleading standard for 1983 conspiracy claim s on the theory that plaintiffs may readily plead these claims but then not be a ble to prove them.38 In light of the rea33. Thomas v. Independence Twp., 463 F.3 d 285, 29495 (3d Cir. 2006). See, e.g., Evancho v. Fisher, 423 F.3d 347, 35152 (3d Cir. 2005); Doe v. Cassel, 403 F.3d 986, 98889 (8th Cir. 2005); Educadores Puert orriquenos, 367 F.3d at 6667; Goad v. Mitchell, 297 F.3d 497, 50405 (6th Cir. 2002 ); Currie v. Doran, 242 F.3d 905, 916 (10th Cir.), cert. denied, 534 U.S. 1019 ( 2001). See also Iqbal v. Hasty, 490 F.3d 143, 15859 (2d Cir. 2007), cert. granted , 128 S. (2008) (Bivens claim). Contra GJR Invs., Inc. v. County of Escambia, 13 2 F.3d 1359, Ct. 1369 (11th Cir. 1998). In Educadores Puertorriquenos en Accion v. Hernandez, the First Circuit stated that in a civil rights action as in any other action subject to notice pleading stand ards, the complaint should at least set forth minimal facts as to who did what t o whom, when, where, and whyalthough why, where, when means the actors state of mi nd, can be averred generally. . . . [T]he requirements of Rule 8(a)(2) are minim albut minimal requirements are not tantamount to nonexistent requirements. Educadores Puertorriquenos, 367 F.3d at 68. 34. See, e.g., Crawford-El v. Britto n, 523 U.S. 574, 59798 (1998); Schultea v. Wood, 47 F.3d 1427, 143334 (5th Cir. 19 95) (en banc); Doe v. Cassel, 403 F.3d 986, 989 (8th Cir. 2005). See infra Part XI. 35. Dennis v. Sparks, 449 U.S. 24, 2729 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970). See infra Part VII. 36. See infra Part XXI. 37. See, e .g., Fed. R. Evid. 801(d)(2)(E) (coconspirator hearsay exemption). 38. See 1 Mar tin A. Schwartz, Section 1983 Litigation: Claims and Defenses 1.06 (4th ed. 2004 ). See, e.g., Reasonover v. St. Louis County, 447 F.3d 569, 582 (8th Cir. 2006) ( 1983 conspiracy claim requires plaintiff to allege with particularity and specifi cally demon10

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction soning in Leatherman and Swierkiewicz, it seems courts should also apply the not ice pleading standard to these claims.39 The Supreme Courts recent decision in Be ll Atlantic Corp. v. Twombly 40 has generated considerable uncertainty and confu sion over the pleading standards for all federal court complaints, including tho se filed under 1983. Although Bell Atlantic is an antitrust case, the language u sed by the Court indicates that the decision is not limited to antitrust cases a nd applies to federal complaints generally, including those filed under 1983. Th e Court ruled in Bell Atlantic that although Federal Rule of Civil Procedure 8(a )(2) notice pleading does not require detailed factual allegations, the complaint must provide some factual allegations of the nature of the claim and the grounds on which the claim rests. The plaintiff must plead more than labels and conclusi ons, and a formulaic recitation of the elements of a cause of action will not do . 41 The Court said that the [f]actual allegations must be enough to raise a right to relief above the speculative level to a plausibility level. 42 It is no answer to say that a claim just shy of a plausible entitlement to relie f can, if groundless, be weeded out early in the discovery process through carefu l case management, given the common lament that the success of judicial supervisi on in checking discovery abuse has been on the modest side.43 strate material facts that the defendants reached an agreement) (quoting Marti v. City of Maplewood, 57 F.3d 680, 685 (8th Cir. 1995)); Ciambriello v. County of N assau, 292 F.3d 307, 325 (2d Cir. 2002) (complaints containing only conclusory, v ague, or general allegations that defendants have engaged in a conspiracy to dep rive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instanc es of misconduct); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). 39 . See Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir. 2002) (notice pleading g overns 1983 conspiracy claims). 40. 127 S. Ct. 1955 (2007). 41. Id. at 196465. 42 . Id. at 196566, 1970. 43. Id. at 1967 (citing Frank H. Easterbrook, Comment, Dis covery as Abuse, 69 B.U. L. Rev. 63538 (1989)). 11

Section 1983 Litigation The Court also ruled in Bell Atlantic that federal courts should no longer rely on the frequently quoted statement from Conley v. Gibson 44 that a complaint should not be dismissed for failure to state a claim unless it a ppears beyond doubt that the plaintiff can prove no set of facts in support of h is claim which would entitle him to relief. . . . [A]fter puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard ; once a claim has been stated adequately, it may be supported by showing a set of facts consistent with the allegations in the complaint.45

Although Bell Atlantic could be read as imposing some form of heightened pleading requirement, the Supreme Court disavowed any intent to do so. The Court acknowle dged that a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations and that it was not requiring heightened fact pleadi ng of specifics, but only enough facts to state a claim to relief that is plausi ble on its face. 46 Furthermore, the Court made no attempt to modify its decision s in Leatherman and Swierkiewicz. In fact, just two weeks after its decision in Bell Atlantic, the Court, in Erickson v. Pardus, 47 applied notice pleading to a pro se prisoners 1983 Eighth Amendment medical treatment claim. Citing, inter al ia, Bell Atlantic and Swierkiewicz, the Court in Erickson held that the 1983 com plaint satisfied Rule 8s notice pleading standard. The Eighth Circuit had dismiss ed the complaint on the ground that it was conclusory, but the Supreme Court sum marily reversed. The complaint in Erickson alleged that the defendant doctors deci sion to remove [plaintiff] from his prescribed hepatitis C medication was endange ring his life, and that [plaintiffs] medication was withheld shortly after [plaintiff had commenced a treatment program that would take one year, and that he was stil l in need of treatment of his disease, and that the prison officials were in the meantime refusing to provide treatment. 48 The Supreme Court held that these alle gations 44. 45. 46. 47. 48. 355 U.S. 41, 4546 (1957). Bell Atlantic, 127 S. Ct. at 196869. Id. at 1974. 127 S. Ct. 2197 (2007). Id. at 2200. 12

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction were sufficient to satisfy Rule 8 of the Federal Rules of Civil Procedure. 49 Er ickson strongly supports the conclusion that Bell Atlantic did not modify the not ice pleading standard established by Leatherman and Swierkiewicz for 1983 civil r ights complaints. In Iqbal v. Hasty, 50 the Second Circuit, in an insightful opi nion by Judge Jon Newman, carefully analyzed the implications of Bell Atlantic f or civil rights complaints.51 Judge Newman detailed the conflicting signals in Bel l Atlantic and the uncertainties as to the intended scope of the Courts decision. 5 2 The Second Circuit found that Bell Atlantic does not require a universal standa rd of heightened fact pleadings but is instead requiring a flexible plausibility standard, which obliges a pleader to amplify a claim with some factual allegation s in those contexts where such amplification is needed to render the claim plaus ible. 53 D. Federal Court Jurisdiction 1. Subject-Matter Jurisdiction Section 1983 itself does not grant the federal co urts subject-matter jurisdiction, but federal district courts have subject-matte r jurisdiction over 1983 claims under either 28 U.S.C. 1343(a)(3)54 or the gener al 49. The Court noted that the complaint also included other, more specific factua l allegations. 50. 490 F.3d 143 (2d Cir. 2007), cert. granted, 128 S. Ct. (2008) . 51. Iqbal was actually a Bivens action, but the same pleadings issues exist in Bivens and 1983 actions. 52. Iqbal, 490 F.3d at 157. 53. Id. at 15758. The Secon d Circuit in Iqbal specifically held that a Bivens claim subject to qualified im munity is not subject to a heightened pleading requirement. The circuit courts h ave rather consistently applied Bell Atlantic to 1983 claims. See, e.g., Alvarad o Aguilera v. Negron, 509 F.3d 50, 53 (1st Cir. 2007); Estate of Sims v. County of Bureau, 506 F.3d 509, 512 (7th Cir. 2007); Watts v. Fla. Intl Univ., 495 F.3d 1289, 1295 (11th Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007 ) (plaintiffs have met their obligation to provide grounds for their entitlement to relief by presenting factual allegations sufficient to raise their right to r elief above a speculative level), cert denied, 128 S. Ct. 1223 (2008). 54. See Ch apman v. Houston Welfare Rights Org., 441 U.S. 600, 61520 (1979). 13

Section 1983 Litigation federal question jurisdiction statute, 28 U.S.C. 1331.55 Federal courts may neve rtheless at times lack jurisdiction because of some other jurisdictional doctrin e (such as the RookerFeldman doctrine), because of the Eleventh Amendment,56 or b ecause of an abstention doctrine. 57 2. RookerFeldman Doctrine In some federal co urt 1983 actions, a party who lost in state court may try to make a federal case of it by seeking to overturn the state court judgment. This stratagem generally f ails because of the Rooker Feldman doctrine, named after the Supreme Courts decision s in Rooker v. Fidelity Trust Co.58 and District of Columbia Court of Appeals v. Feldman. 59 This doctrine provides that a federal district court does not have jurisdiction to overturn a state court judgment, even when the federal court com plaint alleges that the state court judgment violates the plaintiffs federal cons titutional rights. In creating this jurisdictional bar, the Supreme Court reason ed that because federal district courts have only original jurisdiction, they la ck appellate jurisdiction to review state court judgments. The Court explained t hat only the Supreme Court has federal court appellate jurisdiction over state c ourt judgments.60 The lower federal courts have struggled to determine the conto urs of the RookerFeldman doctrine. 61 In Exxon Mobil Corp. v. Saudi Basic Industr ies Corp., 62 the Supreme Court found that some lower federal courts had interpr eted RookerFeldman far beyond its intended contours by overriding Congress conferral of federal court jurisdiction concurrent with jurisdiction exercised by state co urts, and superseding the ordinary application of preclusion law under 28 U.S.C. 1738.63 55. A federal court with subject-matter jurisdiction over a 1983 claim in some c ircumstances may decline to exercise that jurisdiction under one or more of the abstention doctrines. See infra Part XX. 56. See infra Part XIII. 57. See infra Part XX. 58. 263 U.S. 413 (1923). 59. 460 U.S. 462 (1983). 60. 28 U.S.C. 1257 (2 006). 61. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 1.07 (4th ed. 2004). 62. 544 U.S. 280 (2005). 63. Id. at 29294. Accord Lance v. Dennis, 126 S. Ct. 1198, 1201 (2006). 14

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction The Court in Exxon Mobil clarified that the RookerFeldman doctrine is confined to federal court actions brought by state-court losers complaining of injuries caus ed by state-court judgments rendered before the district court proceedings comme nced.64 Exxon Mobil resolved that the RookerFeldman doctrine does not apply merely because parallel suits have been filed in state and federal court, even if the st ate suit comes to judgment during the pendency of the federal suit. The Court re iterated that the pendency of an action in the state court is no bar to proceeding s concerning the same matter in the Federal court having jurisdiction. 65 In notic ing that [s]ince Feldman, this Court has never applied RookerFeldman to dismiss an action for want of jurisdiction, 66 the Exxon Mobil Court emphasized the narrown ess of the doctrine. 67 Exxon Mobil acknowledged that the RookerFeldman doctrine does not override or supplant preclusion and abstention doctrines, and that these doctrines may be relevant when the federal court action parallels a state court suit. Unfortunately, the decision in Exxon Mobil provided no guidance on the iss ue that has given the lower federal courts the most difficulty, namely, determin ing whether the federal court complaint contests the validity of a state court j udgment. The critical inquiry is whether the injury alleged by the federal plaint iff resulted from the state court judgment itself or is distinct from that judgm ent. 68 This principle is easy to state, though often difficult to apply. 64. Exxon Mobil, 544 U.S. at 281. Accord Lance, 126 S. Ct. at 1201. See Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005) (for RookerFeld man doctrine to apply: (1) plaintiff must have lost in state court; (2) the stat e court judgment must have been rendered before the district court proceeding co mmenced; (3) plaintiff must complain of injuries caused by the state court judgm ent; and (4) plaintiff must invite district court review and rejection of the st ate court judgment); Kougasian v. TMSL, Inc., 359 F.3d 1136, 1140 (9th Cir. 2004 ) (RookerFeldman thus applies only when the federal plaintiff both asserts as her injury legal error or errors by the state court and seeks as her remedy relief f rom the state court judgment.). 65. Exxon Mobil, 544 U.S. at 292 (quoting McClell an v. Carland, 217 U.S. 268, 282 (1910)). 66. Exxon Mobil, at 287. 67. See Lance v. Dennis, 126 S. Ct. 1198, 1201 (2006) (noting that Court in Exxon Mobil found that RookerFeldman is a narrow doctrine). 68. Kougasian, 359 F.3d at 1140 (If a fed eral plaintiff asserts as a legal wrong an allegedly erroneous decision by a sta te court, and seeks relief from a state court judgment 15

Section 1983 Litigation The Supreme Court has recognized that the RookerFeldman doctrine may apply even w hen the claim asserted in federal court was not determined in the state court pr oceeding if that claim was inextricably intertwined with the state court judgment. 69 The lower federal courts have experienced difficulties applying this concept. 70 The RookerFeldman doctrine does not apply to interlocutory state court orders but only to federal cases brought after the state proceedings ended. 71 The RookerF eldman doctrine does not apply to a federal suit brought by a plaintiff who was not a party to the state court proceeding.72 In Lance v. Dennis, 73 the Supreme Court held that the RookerFeldman doctrine does not bar federal suit when the fed eral plaintiff was not a party to the state court judgment, even if, for the pur pose of preclusion, the federal plaintiff was in privity with a party to the sta te judgment.74 As in Exxon Mobil, the Court in Lance stressed the based on that decision, RookerFeldman bars subject-matter jurisdiction in federal district court. If, on the other hand, a federal plaintiff asserts as a legal w rong an allegedly illegal act or omission by an adverse party, RookerFeldman does not bar jurisdiction . . . Rooker Feldman thus applies only when the federal pla intiff both asserts as [an] injury legal error or errors by the state court and seeks as [a] remedy relief from the state court judgment. (citations omitted)). A ccord Guttman v. Khalsa, 446 F.3d 1027, 103132 (10th Cir. 2006); Kenmen Engg v. Ci ty of Union, 314 F.3d 468, 476 (10th Cir. 2002); Garry v. Geils, 82 F.3d 1362, 1 365 (7th Cir. 1996). 69. Exxon Mobil, 544 U.S. at 286 n.1 (citing D.C. Ct. of Ap p. v. Feldman, 460 U.S. 462, 483 n.16 (1983)). 70. A federal claim is inextricabl y intertwined with the state court judgment when the federal claim succeeds only t o the extent that the state court wrongly decided the issues before it. Allstate Ins. Co. v. W. Va. State Bar, 233 F.3d 813, 819 (4th Cir. 2000). 71. Exxon Mobil , 544 U.S. at 291; Guttman, 446 F.3d at 1032; Federacion de Maestros de P.R. v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 26 (1st Cir. 2005) (for Ro okerFeldman doctrine to apply, state proceedings must have ended with respect to t he issues that the federal plaintiff seeks to have removed in federal court, eve n if other matters remain to be investigated (emphasis in original)). 72. Johnson v. De Grandy, 512 U.S. 997, 1006 (1994); Holiday Amusement Co. of Charleston, I nc. v. South Carolina, 40 F.3d 534, 537 (4th Cir. 2005); Twin City Fire Ins. Co. v. Adkins, 400 F.3d 293, 297 (6th Cir. 2005). 73. 126 S. Ct. 1198 (2006). 74. T he Court in Lance hedged its ruling ever so slightly, stating that it need not d ecide whether there are any circumstances, however limited, in which RookerFeldman may be applied against a party not named in an earlier state proceedinge.g., whe re an estate takes a de facto appeal in a district court of an earlier state cou rt decision involving the decedent. Id. at 1202 n.2. 16

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction narrowness of the RookerFeldman doctrine and that it is distinct from preclusion. The Supreme Court has also held that the RookerFeldman doctrine does not apply w hen the federal court plaintiff seeks review of a state administrative or execut ive determination.75 3. Supplemental Jurisdiction In many 1983 actions the feder al court plaintiff asserts both a federal claim and one or more state law claims . In these cases, the plaintiff normally is unable to establish diversity jurisd iction over the state law claim because the parties are not citizens of differen t states. Nevertheless, the state law claim may come within the federal courts su pplemental jurisdiction. The supplemental jurisdiction statute, 28 U.S.C. 1367, codifies the United Mine Workers v. Gibbs of America76 doctrine of pendent juris diction. Section 1367(a) grants supplemental jurisdiction to the federal distric t courts for all other claims that are so related to claims over which the federal district court has original jurisdiction that they form part of the same case or controversy under Article III. 77 In Gibbs, the Supreme Court held that a penden t claim is part of an Article III controversy when the pendent claim arises out of a common nucleus of operative fact as the jurisdictional conferring claim. 78 L ike pendent jurisdiction, supplemental jurisdiction is a matter of both power an d discretion. Thus, 1367(c) provides that the district court may decline to exer cise its supplemental jurisdiction when the supplemental claim raises a novel or complex issue of state law, when the state law claim substantially predominates ov er the jurisdiction conferring claim, when the district court has dismissed the ju risdiction conferring claim, or in other exceptional circumstances. 79 To illustra te, assume that a plaintiff asserts a non-insubstantial 1983 constitutional clai m against Officer Jones. Under 1367, the plaintiff may assert a supplemental state law claim arising out of the 75. 76. 77. 78. 79. Verizon Md. Inc. v. Pub. Serv. Commn of Md., 535 U.S. 635, 644 n.3 (2002). 383 U. S. 715 (1966). 28 U.S.C. 1367(a) (1990). Gibbs, 383 U.S. at 725. 28 U.S.C. 1367( c) (1990). 17

Section 1983 Litigation same incident against Jones. The plaintiff might also choose to assert a suppleme ntal state law claim against a new supplemental party defendantfor example, a state law vicarious liability claim against the city, even though there is no independ ent jurisdictional basis for that claim. 80 In other words, the supplemental jur isdiction statute encompasses both pendent claim and pendent party jurisdiction. 81 It also encompasses counter-claims, cross-claims, and impleader claims.82 In City of Chicago v. International College of Surgeons, 83 the Supreme Court held that a state court judicial review claim may come within supplemental jurisdicti on. 84 On the other hand, the supplemental jurisdiction statute does not overrid e the Eleventh Amendment and thus does not authorize district courts to exercise supplemental jurisdiction over claims against nonconsenting states. 85 Section 1367(d) of the supplemental jurisdiction statute provides for the tolling of the limitations period for supplemental claims while they are pending in federal co urt and for thirty days following a federal courts dismissal of a supplemental cl aim, unless state law provides for a longer tolling period. 86 The supplemental jurisdiction tolling provision does not apply when a federal court dismisses a s upplemental 80. See Jinks v. Richland County, S.C., 538 U.S. 456, 46567 (2003) (supplemental jurisdiction may be asserted in 1983 actions against municipalities). 81. See Ex xon Mobil Corp. v. Allapattah, 125 S. Ct. 2611, 262021 (2005) (Recognizing that 1 367 overturned Finley v. United States, 490 U.S. 545 (1989), which had rejected pendent party jurisdiction in actions under Federal Tort Claims Act; stating The last sentence of 1367 makes it clear that the grant of supplemental jurisdiction extends to claims involving joinder or intervention of additional parties. . . . [Section] 1367(a) is a broad jurisdictional grant with no distinctions drawn b etween pendent-claim and pendent-party cases. . . . The terms of 1367 do not ack nowledge any distinction between pendent jurisdiction and the doctrine of so-cal led ancillary jurisdiction.). 82. Id. at 2633. 83. 522 U.S. 156, 166 (1997). 84. Federal courts in New York have been very reluctant to exercise supplemental jur isdiction over state judicial review claims. See Morningside Supermarket Co. v. N.Y. State Dept of Health, 432 F. Supp. 2d 334, 34647 (S.D.N.Y. 2006) (citing case s). 85. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 536 (2002). Cf. Jinks , 538 U.S. at 46667 (supplemental jurisdiction may be asserted in 1983 action aga inst municipality). 86. See Jinks, 538 U.S. at 461, 46467 ( 1367(d) tolling provis ion is within Congresss legislative power, does not impermissibly intrude on stat es rights, and encompasses claims against municipal entities). 18

II. Elements of Claim, Functional Role, Pleading, and Jurisdiction claim against a state on Eleventh Amendment grounds.87 The tolling provision doe s apply, however, to claims against municipal entities.88 4. Removal Jurisdictio n Defendants sued in state court under 1983 may generally remove the action to f ederal court.89 If a state court complaint alleged a 1983 federal claim and a st ate law claim, the defendants may remove the action to federal court, and the fe deral court may exercise supplemental jurisdiction over the state law claim. 90 In addition, if a state court complaint asserted a 1983 personal capacity claim and a 1983 claim against a state entity that is barred by the Eleventh Amendment , the defendants may still remove the action to federal court, which can hear th e non-barred, personal capacity claim.91 When seeking removal, the state waives its Eleventh Amendment immunity from liability on a state law claim on which the state had already waived its sovereign immunity in the state court.92 E. State Court Jurisdiction State courts have concurrent jurisdiction over 1983 claims.93 When plaintiffs as sert federal claims in state court, federal law takes the state courts as it finds them. 94 In other words, [s]tates may establish the rules of procedure governing l itigation in their own courts[,] such as neutral rules of procedure governing ser vice of process and substitution of parties.95 State courts, however, may not ap ply state rules that Raygor, 534 U.S. at 544. Jinks, 538 U.S. at 46567. 28 U.S.C. 1441(a)(b) (1986). Ci ty of Chi. v. Intl Coll. of Surgeons, 522 U.S. 156, 17273 (1997). Wis. Dept of Corr . v. Schacht, 524 U.S. 381, 38990 (1998). Lapides v. Bd. of Regents, 535 U.S. 613 , 61920 (2002). See infra Part XIII (Eleventh Amendment). 93. Natl Private Truck C ouncil, Inc. v. Okla. Tax Commn, 515 U.S. 582, 58889 (1995); Howlett v. Rose, 496 U.S. 356, 375 (1990); Felder v. Casey, 487 U.S. 131, 139 (1988); Ark. Writers Pro ject v. Ragland, 481 U.S. 221, 234 (1987); Patsy v. Bd. of Regents, 457 U.S. 496 , 50607 (1982). See Steven H. Steinglass, Section 1983 Litigation in State Courts (West 2006). 94. Steinglass, supra note 93, 10.1, p. 10-1 (quoting Henry M. Har t, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 508 (1954)). 95. Felder v. Casey, 487 U.S. 131, 138, 145 (1988). 87. 88. 89. 90. 91. 92. 19

Section 1983 Litigation unduly burden, frustrate, or discriminate against the federal claim for relief. For example, a state court may not apply a state notice-of-claim requirement to a 1983 claim because notice-of-claim provisions discriminate and unduly burden p laintiffs with claims against governmental entities.96 In state courts, federal law provides the elements of the 1983 claim for relief and the defenses to the c laim, and state law may not alter either the elements or defenses. 97 The Suprem e Court, in Howlett v. Rose, 98 held that state courts may not apply state law i mmunity defenses to 1983 claims. In cases arising from state court 1983 actions, the Supreme Court has generally held that the same rules that govern the litiga tion of 1983 actions in federal court also govern the litigation of 1983 actions in state court.99 96. Id. at 138 (state notice-of-claim rule not applicable to 1983 claims). See g enerally Brown v. W. Ry. of Ala., 338 U.S. 294, 29899 (1949) (local practice rule s may not unduly burden the federal right). See infra Part XVI. 97. Howlett v. R ose, 496 U.S. 356, 37576 (1990). 98. 496 U.S. 356 (1990). 99. See Natl Private Tru ck Council, Inc. v. Okla. Tax Commn, 515 U.S. 582, 586 (1995) (policies of Tax In junction Act apply in state court 1983 actions challenging state tax policies); Howlett, 496 U.S. at 383 (state law immunity defense does not apply to 1983 muni cipal liability claim); Felder, 487 U.S. at 138 (state notice-of-claim rules do not apply in state or federal court 1983 actions); Will v. Mich. Dept of State Po lice, 491 U.S. 58, 71 (1989) (state liability under 1983: whether plaintiffs fil e a 1983 claim in state or federal court, states and state entities are not suab le persons under 1983). State courts, however, are not obligated to grant 1983 def endants an interlocutory appeal from the denial of qualified immunity, even when federal law would permit an interlocutory appeal in federal court. Johnson v. F ankel, 520 U.S. 911, 913 (1997). See infra Part XV. 20

III. Section 1983 Plaintiffs III. Section 1983 Plaintiffs A. Persons Entitled to Bring Suit Under 1983 The right to bring suit under 1983 is available to a wide range of plaintiffs. T his right is not limited to U.S. citizens. Legal and even illegal aliens are ent itled to sue under 1983.100 Nor is the right to sue limited to individuals. Both for-profit and not-for-profit organizations may sue under 1983.101 However, the Supreme Court held that a Native American tribe that sought to vindicate its so vereign status was not entitled to sue under 1983.102 The Court reasoned [s]ectio n 1983 was designed to secure private rights against government encroachment, . . . not to advance a sovereigns prerogative to withhold evidence relevant to a cr iminal investigation. 103 B. Standing Whether the plaintiff is a person entitled to sue under 1983 is a question separat e and distinct from whether the plaintiff has standing to sue. For example, Mich ael Newdow, who sought to challenge the constitutionality of a school policy req uiring teacher-led recitation of the Pledge of Allegiance, was clearly a person en titled to sue under 100. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 2 (4 th ed. 2004). See, e.g., Graham v. Richardson, 403 U.S. 365 (1971) (legal aliens ); Plyler v. Doe, 457 U.S. 202 (1982) (illegal aliens). 101. See 1 Schwartz, sup ra note 100, 2. Although labor unions have been permitted to sue under 1983, the Tenth Circuit held that an unincorporated association may not sue under 1983. L ippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006) (We conclude . . . that the Dictionary Act of 1871, the common understanding regarding unincorporated assoc iations in 1871, and the legislative history of Section 1 of the Civil Rights Ac t of 1871 fail to indicate a congressional intent to include unincorporated asso ciations within the ambit of the term person set forth in 42 U.S.C. 1983.). 102. In yo County, Cal. v. Paiute-Shoshone Indians, 538 U.S. 701, 712 (2003) (citing Wil l v. Mich. Dept of State Police, 491 U.S. 58, 66 (1989)). 103. Id. See also Skoko mish Indian Tribe v. United States, 410 F.3d 506, 51415 (9th Cir. 2005) (en banc) (plaintiff tribe asserted communal fishing rights reserved to it, as a sovereign , by a treaty it entered into with the United States; court held tribe could not assert its treaty-based rights under 1983 because tribe not a person entitled to s ue under 1983 for violation of a sovereign prerogative; nor were tribe members e ntitled to sue, because asserted fishing treaty rights were communal rights of t ribe, even though individual members benefit from these rights). 21

Section 1983 Litigation 1983, but the Supreme Court held that he lacked standing. 104 The Court decided that Newdow could not assert the rights of his daughter because the girls mother, and not Newdow, had legal custody. Article III has three standing requirements: (1) an actual or a threatened injury; (2) that injury is fairly traceable to th e defendants conduct; and (3) there is a sufficient likelihood that a favorable d ecision on the merits will redress the injury. 105 In addition to the Article II I requirements, the Supreme Court has formulated prudential standing requirements. The most important of the prudential rules is the rule against third-party stan ding that generally requires the plaintiff to assert her own rights and not the rights of a third party.106 The Supreme Court has established a specific standin g doctrine when the plaintiff seeks injunctive relief. In City of Los Angeles v. Lyons, 107 a 1983 action, the plaintiff sought both damages for a chokehold app lied by a police officer during a traffic stop and a permanent injunction agains t the City of Los Angeles to ban its police officers from using chokeholds on hi m or others unless the officer is threatened with serious harm. 108 The Court de termined that the plaintiff had standing for his request for damages from the ch okehold during the traffic stop, but did not have standing to seek prospective i njunctive relief.109 To establish standing for prospective relief, the Court dec lared that Lyons must demonstrate a realistic probability that he will again be subjected to the same injurious conduct.110 The Supreme Court held that standing for injunctive relief depended on whether police officers were likely to use a chokehold on Lyons in the future. 111 The fact that 104. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 1718 (2004). 105. See, e .g., Allen v. Wright, 468 U.S. 737, 751 (1984); Warth v. Seldin, 422 U.S. 490, 498500 (1975). Accord Daimler Chrysler Corp. v. Cuno, 126 S. Ct. 1854, 1861 (2006 ). 106. See Erwin Chemerinsky, Federal Jurisdiction, 2.3.4 (5th ed. 2007). Excep tions to the rule against third-party standing allow a party to assert the right s of a third party when the rights of the litigant before the court and the righ ts of the third party are closely related (e.g., physician and patient) or where an obstacle prevents the third party from asserting her own claim. Singleton v. Wulff, 428 U.S. 106, 11316 (1976). 107. City of L.A. v. Lyons, 461 U.S. 95, 10102 (1983). 108. Id. at 98. 109. Id. at 113. 110. Id. at 10102. 111. Id. at 105. 22

III. Section 1983 Plaintiffs the officers had used a chokehold on Lyons and others in the past was not dispos itive of whether there was a sufficient probability that Lyons would be subjecte d to it in the future. 112 Nor was Lyons subjective fear that he would again be c hoked without justification sufficient to confer standing. 113 For the Court, sp eculation or conjecture that officers might subject the plaintiff to the chokeho ld in the future did not demonstrate any real or immediate threat that the plaint iff [would] be wronged again. 114 Furthermore, the Court explained that the plain tiff could litigate the legality of the challenged conduct on his claim for dama ges. Thus, the Court discerned an adequate remedy at law.115 The Court explained that to establish standing to seek injunctive relief, Lyons would have had not only to allege that he would have another encounter with the police, but also to make the incredible assertion either that all police offices in Los Angeles alwa ys choke any citizen with whom they happen to have an encounter or that the City o rdered or authorized police officers to act in such manner. 116 Because Lyons did not demonstrate a sufficient likelihood that he would again be subjected to the chokehold, the Court determined that he lacked standing to seek prospective rel ief. 112. Id. 113. Id. at 98. 114. Id. at 111. The Court relied on its prior decision s in OShea v. Littleton, 414 U.S. 488 (1974), and Rizzo v. Goode, 423 U.S. 362 (1976). 115. Lyons, 461 U.S. at 111 . 116. Id. at 105, 106. 23

Section 1983 Litigation IV. Constitutional Rights Enforceable Under 1983 A. Generally Plaintiffs may enforce a wide range of federal constitutional rights under 1983 against defendants who acted under color of state law.117 The Fourteenth Amendme nt creates numerous rights enforceable under 1983, namely substantive and proced ural due process, the equal protection of the laws, and those rights from the Bi ll of Rights incorporated by the Due Process Clause of the Fourteenth Amendment. These incorporated rights include rights protected by the First Amendment free speech and religion clauses (the free exercise and establishment clauses), the F ourth Amendment protection against unreasonable searches and seizures, and the E ighth Amendment protection against cruel and unusual punishment. Section 1983 al so safeguards some other constitutional rights. In Dennis v. Higgins, 118 the Su preme Court held that the Dormant Commerce Clause, also referred to as the negati ve implications of the Commerce Clause, which imposes constitutional limitations on the power of the states to regulate interstate commerce, is enforceable under 1983.119 The Court in Dennis made clear that 1983 is not limited to the enforce ment of Fourteenth Amendment rights. In Golden State Transit Corp. v. City of Lo s Angeles, 120 however, the Supreme Court held that the Supremacy Clause does no t create rights that are enforceable under 1983. Rather, the Supremacy Clause di ctates that state and local laws in conflict with federal statutes are unenforce able. 121 When state action is alleged to violate a federal statute, the pertine nt issue is whether the particular federal statutory provision creates rights en forceable under 1983.122 Whether the plaintiff has alleged a proper constitution al claim under 1983 depends on the meaning of the particular constitutional 117. 118. 119. 120. 121. 122. See infra Part V. 498 U.S. 439 (1991). Id. at 44647. 493 U.S. 103 (1989). Id. at 107. See infra Part V. 24

IV. Constitutional Rights Enforceable Under 1983 provision at issue, not on an interpretation of 1983. For example, in Graham v. Connor, 123 the Supreme Court held that claims of excessive force during an arre st, investigatory stop, or other seizure are evaluated under a Fourth Amendment objective reasonableness standard.124 The Court in Graham rejected the existence of a generic right to be free from excessive force, grounded . . . in basic princip les of 1983 jurisprudence. 125 In addressing an excessive force claim brought under 1983, analysis begins by identifying the specific constitutional right allegedl y infringed by the challenged application of force. 126 Federal 1983 complaints a lso frequently assert Fourth Amendment challenges to warrantless arrests. The ke y issue in these cases is whether the arresting officer had probable cause to ar rest.127 Large numbers of 1983 complaints allege free speech retaliation claims. These claims frequently give rise to difficult legal issues and sharply contest ed factual issues. 128 The majority of these claims are asserted by present and former public employees. First Amendment retaliation claims are also asserted by government contractors, individuals subject to criminal prosecution, prisoners, and landowners, among others. The key issues in these cases are whether the pla intiffs speech was pursuant to her official duties; whether the plaintiff spoke o ut on a matter of public concern; whether the defendant took adverse action agai nst the plaintiff 123. 490 U.S. 386 (1989). 124. The Court in Graham held that all claims that law enforcement officers have used excessive forcedeadly or notin the course of an arrest . . . should be analyz ed under the Fourth Amendment and its reasonableness standard. Graham, 490 U.S. at 395. See also Tennessee v. Garner, 471 U.S. 1, 7 (1985) (deadly force); Graham, 490 U.S. at 39697. Fourth Amendment excessive force claims are subject to qualifi ed immunity. Saucier v. Katz, 533 U.S. 194, 203 (2001) (see infra Part XV). 125. Graham, 490 U.S. at 393. 126. Id. at 394. Excessive force claims asserted by co nvicted prisoners are governed by the Eighth Amendment prohibition against cruel and unusual punishment. To establish an Eighth Amendment violation, the plainti ff must show that the force was applied maliciously and sadistically to cause har m rather than in a good-faith effort to maintain or restore discipline. Hudson v. M cMillian, 503 U.S. 1, 67 (1992); Whitley v. Albers, 475 U.S. 312, 32021 (1986). Ex cessive force claims asserted by pretrial detainees are governed by the due proc ess prohibition against the infliction of punishment on pretrial detainees. See ge nerally Bell v. Wolfish, 441 U.S. 520, 535 (1979), discussed infra Part IV.E.3. 127. See infra Part IV.F. 128. See 1 Schwartz, supra note 100, 3.12. 25

Section 1983 Litigation for engaging in protected speech; and whether the governmental interest outweigh s the plaintiffs free speech interests.129 An allegation of a conspiracy does not itself state a claim for relief under 1983; the plaintiff must also allege a co nstitutional deprivation.130 In other words, without a deprivation of a constitu tional right, conspiracy allegations do not give rise to a 1983 claim. State law rights are not enforceable under 1983.131 When governmental conduct is not pros cribed by a textually explicit provision of the Bill of Rights, the Supreme Cour t has generally rejected substantive due process protections and left the plaint iff to available state tort remedies. 132 For example, in Estelle v. Gamble,133 the Supreme Court held that [m]edical malpractice does not become a constitutiona l violation merely because the victim is a prisoner. In Baker v. McCollan, 134 th e Court held that [f]alse imprisonment does not become a violation of the Fourtee nth Amendment merely because the defendant is a state official. 135 Similarly, in Paul v. Davis, 136 the Court held that defama129. Id. 130. Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006) (complaint must a llege a conspiracy to violate a constitutional right); Cefau v. Village of Elk Grove, 211 F .3d 416, 423 (7th Cir. 2000); Young v. County of Fulton, 160 F.3d 899, 904 (2d C ir. 1998). 131. See, e.g., Baker v. McCollan, 443 U.S. 137, 146 (1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Voyticky v. Village of Timberlake, 412 F.3d 669, 678 (6th Cir. 2005) (intentional infliction of emotional distress does not itself give rise to 1983 constitutional claim). Violations of state constitution al rights are not enforceable under 1983. See, e.g., Radvansky v. City of Olmste d Falls, 395 F.3d 291, 314 (6th Cir. 2005) ([A] claimed violation of a state cons titutional right is not cognizable under 1983.); Bookman v. Shubzda, 945 F. Supp. 999, 1009 (N.D. Tex. 1996). 132. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 12930 (1992) (safe working conditions); DeShaney v. Winnebago Count y Dept of Soc. Servs., 489 U.S. 189, 201 02 (1989) (protection of children from pa rental abuse); Paul v. Davis, 424 U.S. 693, 71112 (1976) (defamation). The Suprem e Court recognized substantive due process protection in high-speed police pursu it cases, but imposed a very demanding burden on plaintiffs. See County of Sacra mento v. Lewis, 523 U.S. 833, 85354 (1998) (passengers killed or injured as resul t of high-speed police pursuit may assert substantive due process claim under sho cks-the-conscience standard and must show pursuing officer acted with intent to c ause harm). 133. Estelle v. Gamble, 429 U.S. 97, 106 (1976). 134. 443 U.S. 137 ( 1979). 135. Id. at 146. 136. 424 U.S. 693 (1976). 26

IV. Constitutional Rights Enforceable Under 1983 tion by a government official does not itself violate the Constitution.137 It st ated that 1983 is not a font of tort law to be superimposed upon whatever systems may already be administered by the States. 138 In Collins v. City of Harker Heig hts, 139 the Supreme Court held that a claim that the city breached its duty of care to its employees by failing to provide a safe working environment was analog ous to a fairly typical state law tort claim and was not cognizable under 1983.14 0 The Court stated: Because the Due Process Clause does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend l iving together in society . . . we [reject] claims that the Due Process Clause sh ould be interpreted to impose federal duties that are analogous to those traditi onally imposed by state tort law.141 In some cases, however, state law may have a significant, even decisive, impact on a federal constitutional right. Whether the plaintiff has a protected propert y interest for the purpose of the Due Process Clause of the Fourteenth Amendment depends on whether state law creates a reasonable expectation in the particular interest. In Board of Regents v. Roth, 142 the Supreme Court held that [p]ropert y interests . . . are not created by the Constitution. Rather they are created a nd their dimensions are defined by existing rules or understandings that stem fr om an independent source such as state lawrules or understandings that secure cer tain benefits and that support claims of entitlement to those benefits. 143 Furth er, when the deprivation of property or liberty results from random and unauthori zed governmental action, the availability of an adequate state post-deprivation r emedy will satisfy procedural due process. 144 Id. at 71112. Id. at 701. 503 U.S. 115, 128 (1992). Id. at 12830. Id. at 128 (citi ng Daniels v. Williams, 474 U.S. 327, 33233 (1986); Baker v. McCollan, 443 U.S. 1 37, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976)). 142. 408 U.S. 564 (197 2). 143. Id. at 577. 144. Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 538 (1981), overruled on other grounds by Daniels v. Will iams, 474 U.S. 327 (1986). See also Zinermon v. Burch, 494 U.S. 113, 12938 (1990) (demonstrating the difficulty of determin137. 138. 139. 140. 141. 27

Section 1983 Litigation B. Selected Constitutional Rights: Due Process The Due Process Clause of the Fourteenth Amendment encompasses three kinds of fe deral claims enforceable through 42 U.S.C. 1983: (1) claims for the deprivation of those rights in the Bill of Rights made applicable to the states through inco rporation; (2) claims under the substantive component of the Due Process Clause t hat bars certain arbitrary, wrongful government actions, regardless of the fairne ss of the procedures used to implement them; 145 and (3) claims under the procedur al component of the Due Process Clause that prohibits the deprivation of life, l iberty, or property without fair procedure. 146 When a plaintiff asserts a viola tion of an incorporated right or a right protected under the substantive compone nt of the Due Process Clause, the violation is complete at the time of the chall enged conduct, and the 1983 remedy is available, regardless of remedies provided under state law.147 In contrast, when the plaintiff asserts a violation of proc edural due process, an available state remedy may provide adequate process. C. Procedural Due Process A 1983 claim based on denial of procedural due process challenges the constituti onal adequacy of state law procedural protections accompanying an alleged depriv ation of a constitutionally protected interest in life, liberty, or property. Th e deprivation of life, liberty, or property alone is a necessary, but not suffic ient, condition; to be actionable, the deprivation must have been without adequa te process. 1. Two-Step Approach A procedural due process analysis addresses two questions. The first asks whether there exists a [life,] liberty or property int erest which has been interfered with by the state; the second examines whether t he procedures attendant upon that deprivation were constitutionally suffiing whether conduct was random and unauthorized; the majority held that the conduc t was not random and unauthorized, but four justices dissented). 145. Zinermon, 494 U.S. at 125 (quoting Daniels, 474 U.S. at 331). 146. Id. 147. Id. 28

IV. Constitutional Rights Enforceable Under 1983 cient. 148 A court encountering a procedural due process claim must first determi ne whether the plaintiff has been deprived of a life, liberty, or property inter est that is constitutionally protected as a matter of substantive law.149 While liberty interests may be derived directly from the Due Process Clause of the Con stitution 150 or be created by state law,151 property interests are created from an independent source such as state law. 152 2. Property In Board of Regents v. R oth, 153 the Supreme Court provided the following guidance for determining when a party has a property interest safeguarded by procedural due process: To have a property interest in a benefit, a person clearly must have more than a n abstract need or desire for it. He must have more than a unilateral expectatio n of it. He must, instead, have a legitimate claim of entitlement to it. ... Pro perty interests . . . are not created by the [federal] Constitution. Rather they are created and their dimensions are defined by existing rules or understanding s that stem from an independent source such as state lawrules or understandings t hat secure certain benefits and that support claims of entitlement to those bene fits.154 An individual has a legitimate claim of entitlement to a government dispensed comm odity when the state establishes fairly objective stan148. Ky. Dept of Corr. v. T hompson, 490 U.S. 454, 460 (1989) (citations omitted). 149. Cleveland Bd. of Edu c. 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 w ithout due process of law). 150. See, e.g., Washington v. Harper, 494 U.S. 210, 2 2122 (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, 49394 (1980) (Due Process Clause confers on prisoners a liberty intere st in not being involuntarily committed to a state mental hospital). 151. 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). 152. Cleveland Bd. of Educ., 470 U.S. at 538 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). 153. 408 U.S. 564 (1972). 154. Id. at 577. 29

Section 1983 Litigation dards of eligibility for receiving the commodity. The Supreme Court has found pr otected property interests in a variety of government dispensed commodities made available to those who satisfy objective eligibility standards, including publi c assistance, 155 Social Security disability benefits,156 drivers licenses, 157 p ublic school education,158 municipal furnished utility services, 159 and public employment.160 On the other hand, the Supreme Court held that there was no prope rty interest in police enforcement of a domestic abuse restraining order, even t hough the order and a state statute were couched in mandatory terms requiring po lice enforcement. The Court determined that the mandatory language had to be rea d together with the tradition of broad discretion afforded law enforcement offic ers.161 In addition, except in the area of public employment, federal courts hav e been reluctant to find that a private partys contract with a state or municipal ity creates a protected property interest, because doing so runs the risk that r outine breach-of-contract claims could be converted into 1983 due process claims .162 3. Liberty: Prisoners Rights Cases Prisoners rights cases frequently require a determination of whether the plaintiff has suffered a deprivation of liberty. In Sandin v. Conner,163 Goldberg v. Kelly, 397 U.S. 254, 264 (1970). Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Bell v. Burson, 402 U.S. 535, 539 (1971). Goss v. Lopez, 419 U.S. 56 5, 57374 (1975). Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11 (1978). See, e.g., Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 53839 (1985). Tow n of Castle Rock v. Gonzales, 125 S. Ct. 2796, 280506 (2005). Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 196 (2001) (breach of contract by state did not give rise to procedural due process claim because state law provided ordinary br each-of-contract suit); Ramirez v. Arlequin, 447 F.3d 19, 25 (1st Cir. 2006) (cla im of breach of contract by state actor, without allegation state would refuse t o remedy breach, does not state procedural due process claim); Redondo-Borges v. United States Dept of Hous. & Urban Dev., 421 F.3d 1, 67 (1st Cir. 2005); Dover E levator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8th Cir. 1995) (It is well est ablished that a simple breach of contract does not give rise to the level of a co nstitutional deprivation. (quoting Med. Laundry Servs. v. Bd. of Trs. of Univ. of Ala., 906 F.2d 571, 573 (11th Cir. 1990))); Gannett Fleming W., Inc. v. Vill. of Angel Fire, 375 F. Supp. 2d 1104, 1108 (D.N.M. 2004); Bock Assocs. v. Chroniste r, 951 F. Supp. 969, 975 (D. Kan. 1996). 163. 515 U.S. 472 (1995). 155. 156. 157. 158. 159. 160. 161. 162. 30

IV. Constitutional Rights Enforceable Under 1983 an inmate placed in disciplinary segregation for thirty days asserted a violatio n of procedural due process. The Supreme Court held that, despite the mandatory language of the applicable prison regulation, a prisoners constitutionally protec ted liberty interest will generally be limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the o rdinary incidents of prison life. 164 Under Sandin, mandatory language of a state prison regulation is still a necessary, but no longer a sufficient, prerequisit e for finding a liberty interest.165 Courts must also look to the substance of t he deprivation and assess the hardship imposed on the inmate relative to the ord inary incidents of prison life. 166 164. Id. at 484. 165. Prior to Sandin v. Conner, the Supreme Court held that con victed prisoners have a liberty interest in parole release only if a state statute or regulation creat es a reasonable expectation, rather than a mere possibility, of being granted pa role. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 1112 ( 1979). The Court in Greenholtz found that Nebraskas statutory parole shall release u nless scheme created a protected liberty interest. 166. See, e.g., Hanrahan v. Do ling, 331 F.3d 93 (2d Cir. 2003) (120 months solitary confinement is deprivation of liberty); Bass v. Perrin, 170 F.3d 1312 (11th Cir. 1999) (deprivation of yar d time to inmate in solitary confinement is atypical and significant hardship); Jones v. Baker, 71 F.3d 192 (5th Cir. 1995) (two and one-half years administrati ve segregation for prisoner implicated in killing of prison guard during prison riot was not atypical and significant hardship), cert. denied, 517 U.S. 1196 (1996 ); Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (Exposure to the condition s of administrative custody for periods as long as 15 months falls within the exp ected parameters of the sentence imposed [on him] by a court of law.); Brooks v. D iFasi, 112 F.3d 46, 49 (2d Cir. 1997) (After Sandin, in order to determine whethe r a prisoner has a liberty interest in avoiding disciplinary confinement, a cour t must examine the specific circumstances of the punishment.); Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) (Sandin did not create a per se blanket rule that di sciplinary 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 wh ether that confinement affected a liberty interest.); Dominique v. Weld, 73 F.3d 1156, 1160 (1st Cir. 1996) (finding no liberty interest in work release status); Bulger v. United States Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (hold ing no liberty interest in job assignment); Orellana v. Kyle, 65 F.3d 29, 3132 (5 th Cir. 1995) (suggesting that only deprivations that clearly impinge on the dura tion of confinement, will henceforth qualify for constitutional liberty status), ce rt. denied, 516 U.S. 1059 (1996); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir . 1995) (observing that [t]he holding in Sandin implies that states may grant pri soners liberty interests in being in the general population only if the conditio ns of confinement in segregation are significantly more restrictive than those i n the general population). 31

Section 1983 Litigation Courts normally decide whether the discipline imposed atypical and significant ha rdship on the inmate in relation to the ordinary incidents of prison life as a ma tter of law. The Second Circuit, however, recognizes that the issue can involve factual determinations. 167 But even when there are factual issues, the ultimate issue of atypicality is one of law. 168 Sandin did not disturb Wolff v. McDonnell , 169 which held that a state may create a liberty interest on the part of inmat es in the accumulation of good-conduct time credits.170 Thus, if disciplinary ac tion would inevitably affect the duration of the inmates confinement, a liberty i nterest would be recognized under Wolff.171 Likewise, prisoners claims not based on procedural due process, such as First Amendment retaliatory transfer or retal iatory discipline claims, are not affected by Sandin.172 In Wilkinson v. Austin, 173 the Supreme Court acknowledged that [i]n Sandins wake the Courts of Appeals h ave not reached consistent conclusions for identifying the baseline from which t o measure what is atypical and significant in any particular prison system. 174 T he Court Teller v. Fields, 280 F.3d 69, 80 (2d Cir. 2000). Sealey v. Giltner, 197 F.3d 57 8, 585 (2d Cir. 1999). 418 U.S. 539 (1974). Id. at 557. See Madison v. Parker, 1 04 F.3d 765, 769 (5th Cir. 1997). Before being deprived of good time credits, an inmate must be afforded (1) twenty-four-hour advance written notice of the alle ged violations; (2) the opportunity to be heard before an impartial decision mak er; (3) the opportunity to call witnesses and present documentary evidence (when such presentation is consistent with institutional safety); and (4) a written d ecision by the fact finder stating the evidence relied on and the reasons for th e disciplinary action. Wolff, 418 U.S. at 56371. 171. See, e.g., Whitford v. Bogl ino, 63 F.3d 527, 532 n.5 (7th Cir. 1995). Note, however, that the mere opportuni ty to earn good-time credits has been held not to constitute a constitutionally co gnizable liberty interest sufficient to trigger the protection of the Due Proces s Clause. Luken v. Scott, 71 F.3d 192, 19394 (5th Cir. 1995) (per curiam). 172. Se e, 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, 80607 (9th C ir. 1995). A unanimous Court held that Oklahomas Preparole Conditional Supervisio n Program, a program employed by the State of Oklahoma to reduce the overcrowding of its prisons[,] was sufficiently like parole that a person in the program was entitled to the procedural protections set forth in Morrissey v. Brewer, 408 U. S. 471 . . . (1972), before he could be removed from it. Young v. Harper, 520 U.S . 143, 14445 (1997). 173. 545 U.S. 209 (2005). 174. Id. at 223. 167. 168. 169. 170. 32

IV. Constitutional Rights Enforceable Under 1983 found it unnecessary to resolve that issue because it found that placement of th e plaintiff prisoner in a supermax facility imposed atypical and significant hardsh ip under any plausible baseline. 175 4. Liberty: Defamation In Paul v. Davis, 176 the Supreme Court held that mere government injury to an individuals reputation is not a deprivation of liberty. The Court stated, however, that a deprivation o f liberty arises if the injury to reputation occurs in conjunction with the depr ivation of some tangible interest, even if the tangible interest is not itself a protected property interest, such as at will public employment.177 This has come to be known as the stigma-plus doctrine. In other words, to establish a deprivatio n of liberty, the plaintiff must demonstrate government publication of the stigm a in conjunction with the deprivation of a tangible interest. 5. Procedural Safe guards: The ParrattHudson Doctrine Once a protected interest has been identified, a court must examine the process that accompanies the deprivation of that prote cted interest and decide whether the procedural safeguards built into the proces s are constitutionally adequate. 178 The issue of which procedural safeguards mu st accompany a states deprivation of a constitutionally protected interest is a m atter of federal law.179 When the procedural due process claim contests the adeq uacy of notice, the court must determine whether the 1983 plaintiff was given 175. Id. 176. 424 U.S. 693 (1976). 177. The Court in Davis, 424 U.S. at 709, cit ed Board of Regents v. Roth, 408 U.S. 564 (1972), to illustrate this point. See, e.g., Patterson v. City of Utica, 370 F.3 d 322, 330 (2d Cir. 2004) (In order to fulfill the requirements of a stigma-plus claim arising from the termination from government employment, a plaintiff must first show that the government made stigmatizing statements about himstatements t hat call into question plaintiffs good name, reputation, honor, or integrity. Sta tements that denigrate the employees competence as a professional and impugn the employees professional reputation in such a fashion as to effectively put a signi ficant roadblock in that employees continued ability to practice his or her profe ssion may also fulfill this requirement. A plaintiff generally is required only to raise the falsity of these stigmatizing statements as an issue, not prove the y are false. (internal quotation marks, citations, and footnotes omitted)). 178. Zinermon v. Burch, 494 U.S. 113, 126 (1990). 179. Vitek v. Jones, 445 U.S. 480, 491 (1980). 33

Section 1983 Litigation notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the [proceeding] and afford them an opportunity to pr esent their objections. 180 When the procedural due process claim concerns some a spect of the opportunity to be heard, the courts employ the Mathews v. Eldridge1 81 balancing formula to determine the procedures required by the Due Process Cla use. In Mathews, the Court set forth three competing factors to be weighed in de termining the sufficiency of procedural safeguards accompanying deprivations cau sed by the government: First, the private interest that will be affected by the official action; second , the risk of an erroneous deprivation of such interest through the procedures u sed, and the probable value, if any, of additional or substitute procedural safe guards; and, finally, the Governments interest, including the function involved a nd the fiscal and administrative burdens that the additional or substitute proce dural requirements would entail.182 Federal courts normally determine the procedures required by Mathews balancing a s a matter of law. Generally, due process requires some notice and an opportunit y to be heard prior to the deprivation of a protected interest.183 In certain ca ses, however, a post-deprivation remedy is adequate. For example, the Supreme Co urt held that a state 180. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). See Jo nes v. Flowers, 126 S. Ct. 1708 (2006); Tulsa Profl Collection Servs., Inc. v. Po pe, 485 U.S. 478 (1988); Menonite Bd. of Missions v. Adams, 462 U.S. 791 (1983); Greene v. Lindsey, 456 U.S. 444 (1982); Armstrong v. Manzo, 380 U.S. 545 (1965) . 181. 424 U.S. 319 (1976). 182. Id. at 335. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 228 (2005) (applying Mathews balancing formula, Court found Ohios proc edures for placement of prisoners in supermax facility satisfied procedural due process because inmate was guaranteed multiple levels of review, notice of factu al basis for placement, and fair opportunity for rebuttal; given strong security interest in prison security, fact Ohio did not allow inmate to call witnesses or provide other attributes of an adversary hearing did not violate procedural due process because to do so might jeopardize control of the prisoner and the prison ); Washington v. Harper, 494 U.S. 210, 22933 (1990) (mentally ill state prisoner challenged the prisons administering antipsychotic drugs to him against his will without a judicial hearing to determine the appropriateness of such treatment, a nd prison policy required the treatment decision to be made by a hearing committ ee consisting of a psychiatrist, psychologist, and the prison facilitys associate superintendent; Court applied the Mathews balancing test and found the establis hed procedure constitutionally sufficient). 183. Cleveland Bd. of Educ. v. Loude rmill, 470 U.S. 532, 542 (1985). 34

IV. Constitutional Rights Enforceable Under 1983 did not violate the Due Process Clause of the Fourteenth Amendment by failing to provide notice and a hearing before suspending without pay a university police officer who had been arrested and charged with drug possession.184 The arrest an d the filing of the charges by a third party, and the employers need to expeditio usly dismiss employees in a position of great public trust, strongly weighed again st granting a predeprivation hearing. 185 A due process claim may be based on a deprivation of life, liberty, or property by state officials acting pursuant to an established state procedure that failed to provide for predeprivation process . 186 In this situation, procedural due process generally requires a predeprivat ion hearing if the challenged conduct was authorized, the erroneous deprivation fo reseeable, and predeprivation process was practicable. 187 In contrast, under th e ParrattHudson doctrine, 188 there is no procedural due process violation where the deprivation was unforeseeable, random, and unauthorized, and where the state provided an adequate postdeprivation remedy. 189 This doctrine represents a spec ial case of the general Mathews analysis, in which post-deprivation tort remedie s are all the process that is due, simply because they are the only remedies tha t the state could be expected to provide. 190 The value of a preGilbert v. Homar, 520 U.S. 924 (1997). Id. at 932. See Logan v. Zimmerman Brush Co., 455 U.S. 422 , 43536 (1982). Zinermon v. Burch, 494 U.S. 113, 136 (1990). A strong state inter est in acting quickly may justify dispensing with predeprivation process, in whi ch case a postdeprivation opportunity to be heard will satisfy procedural due pr ocess. See Gilbert v. Homar, 520 U.S. 924, 930 (1997); Barry v. Barchi, 443 U.S. 55, 6465 (1979). 188. Hudson v. Palmer, 468 U.S. 517, 53133 (1984); Parratt v. Ta ylor, 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 Parr att case had held that a deprivation within the meaning of the Fourteenth Amendm ent Due Process Clause could be effected by mere negligent conduct. Daniels, 474 U.S. at 33031. 189. Compare, e.g., Brown v. Hot, Sexy & Safer Prods., Inc., 68 F .3d 525, 53637 (1st Cir. 1995) (concluding that officials failure to adhere to sex education policy was random and unauthorized within meaning of ParrattHudson doctr ine), cert. denied, 516 U.S. 1159 (1996), with Alexander v. Ieyoub, 62 F.3d 709, 712 (5th Cir. 1995) (finding that defendants conductdelaying forfeiture proceedin g for nearly three yearswas authorized under state law where defendants had discr etion to institute proceedings whenever they wanted). 190. Zinermon, 494 U.S. at 128. 184. 185. 186. 187. 35

Section 1983 Litigation deprivation procedural safeguard for unforeseeable conduct is negligible in preven ting the deprivation.191 It is not always easy to determine whether official act ion is random and unauthorized. In Zinermon v. Burch, 192 the plaintiff, Darrell B urch, was admitted to a state mental hospital as a voluntary patient under circums tances that clearly indicated he was incapable of informed consent. Burch allege d that his five-month hospitalization deprived him of liberty without due proces s of law. In holding that Burchs complaint did not allege random and unauthorized conduct, and was sufficient to state a procedural due process claim, the Suprem e Court stated: Burchs suit is neither an action challenging the facial adequacy of a States statu tory procedures, nor an action based only on state officials random and unauthori zed violation of state laws. Burch is not simply attempting to blame the State f or misconduct by its employees. He seeks to hold state officials accountable for their abuse of their broadly delegated, uncircumscribed power to effect the dep rivation at issue.193 D. 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. 194 Noting that the guideposts for responsible decisionmaking in this [uncharted] area [of substantive due process] are scarce and open-ended, 195 the Supreme Court has in recent years expressed a reluctance to expand the scope of substantive due process protection.196 Whenever an ex191. Id. at 129. 192. 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 ch allenging random and unauthorized acts. Mertik v. Blalock, 983 F.2d 1353, 1365 (6 th Cir. 1993). 193. Zinermon, 494 U.S. at 136. 194. Albright v. Oliver, 510 U.S. 266, 272 (1994) (plurality opinion). 195. Id. (quoting Collins v. Harker Height s, 503 U.S. 115, 125 (1992)). 196. See County of Sacramento v. Lewis, 523 U.S. 8 33, 842 (1998); Washington v. Glucksberg, 521 U.S. 702, 720 (1997); Albright, 51 0 U.S. at 271; Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). But see BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) (holding Due Process Clause prohibits state from imposing grossly excessive punishment on tortfeasor). 36

IV. Constitutional Rights Enforceable Under 1983 plicit textual source of constitutional protection addresses particular governmen tal behavior, courts must rely on the more explicit source of protection to anal yze the claim, rather than the amorphous and openended concept of substantive du e process.197 However, substantive due process may provide protection when egreg ious governmental conduct is not forbidden by any of the explicit provisions of the Bill of Rights. For example, substantive due process protects individuals wh o have been subjected to excessive force in a nonseizure, nonprisoner context be cause neither the Fourth nor Eighth Amendment applies. 198 1. Shocks the Conscie nce The Supreme Court, in County of Sacramento v. Lewis, 199 ruled that the subs tantive due process standard depends on whether the plaintiff is challenging leg islative action or executive action and, if the challenge is to executive action , the type of executive action. When the challenge is to legislative action and the legislative policy does not infringe upon a fundamental constitutional right , the test is whether the legislative policy is reasonably related to a legitima te governmental interest.200 When, as in County of Sacramento, the challenge is to executive action, the question is whether the government action is shocking t o the judicial conscience. 201 The Court in County of Sacramento divided executi ve actions into two categories. When the executive official had time to delibera te, but the official was nevertheless deliberately indifferent, the deliberate i ndifference shocks the conscience and violates substantive due proc197. Albright, 510 U.S. at 273 (citing Graham v. Connor, 490 U.S. 386, 395 (1989 )); accord County of Sacramento, 523 U.S. at 843. 198. See County of Sacramento, 523 U.S. at 843 (stating [s]ubstantive due process analysis is therefore inappro priate . . . only if [the] claim is covered by the Fourth Amendment). 199. 523 U.S. 833 (1998). 200. The Court in County of Sacramento cited, as an example of a su bstantive due process challenge to a state legislative policy, the decision in W ashington v. Glucksberg, 521 U.S. 702 (1997) (rejecting substantive due process challenge to state criminalization of physician assisted suicide). 201. See also Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992). 37

Section 1983 Litigation ess. 202 On the other hand, when executive officers did not have time to deliber ate, their actions shock the conscience only if they acted with a purpose to cau se harm that is unrelated to a legitimate law enforcement interest. The officers in County of Sacramento were involved in a high-speed police pursuit and did no t have a realistic opportunity to deliberate. The Court held that their actions did not violate substantive due process because they did not act with a purpose to cause harm unrelated to a legitimate law enforcement interest. In some cases the district judge may be able to decide that, as a matter of law, the contested conduct does not violate substantive due process because a reasonable jury coul d not find that the conduct shocks the conscience. 203 In County of Sacramento, the Court held that the complaint allegations did not state a substantive due pr ocess claim. However, in cases where the complaint allegations satisfy the shock the-conscience standard, and the evidence allows a reasonable jury to find that the contested conduct was conscience shocking, the issue should be submitted to the jury under instructions incorporating the County of Sacramento standards. 2. Professional Judgment The courts have applied a professional judgment standard to certain substantive due process claims. The Supreme Court articulated this stan dard in Youngberg v. Romeo, 204 holding that state officials are liable for trea tment decisions concerning involuntarily committed mental patients only if the o fficials decisions were such a substantial departure from accepted professional ju dgment, practice, or standards as to demonstrate that the person responsible act ually did not base the deci202. The Court said that the provision of medical car e to detainees was an example of executive action with time to deliberate. Count y of Sacramento, 523 U.S. at 834 (citing Estelle v. Gamble, 429 U.S. 97, 104 (19 76)). 203. See, e.g., McConkie v. Nichols, 446 F.3d 258 (1st Cir. 2006) (affirmi ng district courts grant of summary judgment to defendant on substantive due proc ess claim on ground no reasonable juror could find defendants conduct conscience shocking); Moore v. Nelson, 394 F. Supp. 2d 1365, 136869 (M.D. Ga. 2005) (Plainti ffs evidence did not create genuine issue of material fact as to whether defendan ts conduct shocked the conscience: From the evidence before the Court, no reasonab le juror could find that Defendants conduct violated Plaintiffs Fourteenth Amendme nt rights. Therefore, Defendants are entitled to summary judgment on Plaintiffs 1 983 claim.). 204. 457 U.S. 307 (1982). 38

IV. Constitutional Rights Enforceable Under 1983 sion on such a judgment. 205 Some courts have applied the professional judgment s tandard to due process claims asserted on behalf of involuntarily placed foster children.206 3. DeShaney and Affirmative Duty Cases In DeShaney v. Winnebago Cou nty Department of Social Services, 207 the Supreme Court held that the Due Proce ss Clause of the Fourteenth Amendment generally does not create an affirmative d uty on the part of the state to protect the life, liberty, and property of its ci tizens against invasion by private actors. 208 The Court concluded that [a]s a gen eral matter . . . a States failure to protect an individual against private viole nce simply does not constitute a violation of the Due Process Clause. 209 In othe r words, the Due Process Clause prohibits the state from engaging in certain con duct that deprives individuals of life, liberty, or property, but it does not ge nerally require the state to engage in affirmative actions to protect individual s from being harmed by third parties, even when the state is aware of the risk o f harm and may have the ability to prevent it. Thus, the Court in DeShaney held that the state did not have a due process duty to protect Joshua DeShaney from b eing abused by his father, even though the state at one point took Joshua into i ts custody and state officials were aware of the risk of harm. However, the Cour t in DeShaney recognized that the state has an affirmative duty to protect a perso n whom the state has incarcerated or involuntarily institutionalized. 210 Plaint iffs who have not been incar205. Id. at 323. 206. See, e.g., Yvonne L. v. N.M. D ept of Human Servs., 959 F.2d 883, 89394 (10th Cir. 1992) (adopting professional judgment standard, rather than deliberate indi fference, in foster care setting). 207. 489 U.S. 189 (1989). 208. Id. at 195. 20 9. Id. at 197. Many readers are no doubt familiar with the tragic facts of DeSha ney. Joshua, a four-year-old boy, had been repeatedly beaten by his father. The county child protection agency had monitored Joshuas case through social workers and at one point took custody of him, but failed to protect him from his fathers last beating, which left the child permanently brain damaged. Id. at 19293. 210. Id. at 199200; see, e.g., Farmer v. Brennan, 511 U.S. 825, 83334 (1994) (state has constitutional duty to protect prisoners from attacks by fellow prisoners) (see infra Part IV.H); Youngberg v. Romeo, 457 U.S. 307 (1982) (holding substantive due process com39

Section 1983 Litigation cerated or involuntarily institutionalized may assert substantive due process du ty-to-protect claims based on allegations that: (1) the plaintiff was in the func tional custody of the state when harmed, or (2) the state created or increased th e danger to which the plaintiff was exposed. a. Functional Custody Where the sta tes affirmative duty to protect is grounded in the concept of custody, a number of courts have taken the position that the plaintiff must have been involuntarily i n the states custody when harmed. 211 In DeShaney, the Court acknowledged that a 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 institutiona lization to give rise to an affirmative duty to protect. 212 The majority of fede ral circuit courts that have ruled on the issue since DeShaney have recognized a constitutional right to protection from unnecessary harm for foster children in voluntarily placed by the state in foster care. 213 ponent of Fourteenth Amendment Due Process Clause imposes duty on state to provi de for safety and medical needs of involuntarily committed mental patients); Est elle v. Gamble, 429 U.S. 97 (1976) (state has constitutional duty to provide ade quate medical care to incarcerated prisoners). 211. See, e.g., Walton v. Alexand er, 44 F.3d 1297, 1304 (5th Cir. 1995) (en banc) (Recurring throughout [the] case s 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 st ates protection from harm inflicted by third party non-state actors. We thus conc lude that DeShaney stands for the proposition that the state creates a special re lationship with a person only when the person is involuntarily taken into state c ustody and held against his will through the affirmative power of the state; oth erwise, the state has no duty arising under the Constitution to protect its citi zens against harm by private actors.). At least one circuit has suggested that th e concept of in custody for triggering an affirmative duty to protect under DeShan ey entails more than a simple criminal arrest. See Estate of Stevens v. City of Gr een Bay, 105 F.3d 1169, 1175 (7th Cir. 1997) (The Supreme Courts express rationale in DeShaney for recognizing a constitutional duty does not match the circumstan ces 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 minute s.). 212. DeShaney, 489 U.S. at 201 n.9. 213. See, e.g., Nicini v. Morra, 212 F.3 d 798, 808 (3d Cir. 2000) (en banc) (holding that when the state places a child i n state-regulated foster care, the state has entered into a 40

IV. Constitutional Rights Enforceable Under 1983 On the other hand, the circuit courts have consistently rejected arguments that public schoolchildren, by virtue of compulsory attendance laws, are in the functi onal custody of the state during school hours. 214 These courts have held that th e state does not have a duty to special relationship with that child which imposes upon it certain affirmative d uties); Camp v. Gregory, 67 F.3d 1286, 1297 (7th Cir. 1995) (noting that when a DC FS caseworker places a child in a home knowing that his caretaker cannot provide reasonable supervision, and the failure to provide that degree of supervision a nd care results in injury to the child outside of the home, it might be appropri ate, depending upon the facts culminating in the injury, for the caseworker to b e held liable for a deprivation of liberty); Lintz v. Skipski, 25 F.3d 304, 305 ( 6th Cir. 1994) (analogizing state placement of children in foster homes to incar ceration and institutionalization); Norfleet v. Ark. Dept of Human Servs., 989 F. 2d 289, 293 (8th Cir. 1993) (recognizing that [c]ases from this and other circuit s clearly demonstrate that imprisonment is not the only custodial relationship i n which the state must safeguard an individuals civil rights); Yvonne L. v. N.M. D ept of Human Servs., 959 F.2d 883, 893 (10th Cir. 1992) (holding that children pl aced in foster homes by the state have a constitutional right to be safe from har m, and if the state agents placing them there knew or should have known of danger , they may be liable if harm occurs). But see D.W. v. Rogers, 113 F.3d 1214, 121 8 (11th Cir. 1997) (holding that the states affirmative obligation to render servi ces 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 perso n); White v. Chambliss, 112 F.3d 731, 738 (4th Cir. 1997) (Given the state of this circuits 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 [childs] death.); Wooten v. Campbell, 49 F.3d 696, 699701 (11th Cir. 1995) (finding no substantive due proces s right is implicated where a public agency is awarded legal custody of a child, but does not control that childs physical custody except to arrange court-ordere d visitation with the non-custodial parent). 214. See, e.g., Hasenfus v. LaJeunes se, 175 F.3d 68, 7374 (1st Cir. 1999) (school officials do not have due process d uty to protect student from attempting suicide); Doe v. Hillsboro Indep. Sch. Di st., 113 F.3d 1412, 1415 (5th Cir. 1997) (en banc) (joining every circuit court t hat has considered the issue [of the duty of school officials to protect students from private actors] in holding that compulsory school attendance . . . does not create the custodial relationship envisioned by DeShaney); Doe v. Claiborne Coun ty, 103 F.3d 495, 510 (6th Cir. 1996) (holding that schools in loco parentis statu s or a states compulsory attendance laws do not sufficiently restrain students to r aise a schools common-law obligation to the rank of a constitutional duty); Nabozn y v. Podlesny, 92 F.3d 446, 45859 (7th Cir. 1996) (concluding that local school ad ministrations have no affirmative substantive due process duty to protect studen ts [from the risk of bodily harm at the hands of third parties]); Walton v. Alexand er, 44 F.3d 1297, 1305 (5th Cir. 1995) (en banc) (holding that, where attendance at boarding school was not coerced by the state and there was a right to leave at will, childs status as a resident student [did not place] him within the narrow class of persons who are entitled to claim from the state a 41

Section 1983 Litigation protect students from harm inflicted by fellow students or other private actors. 215 The dominant rationale of these decisions is that even while in public scho ol, the student remains in her parents custody. Courts have likewise rejected the notion that individuals in public housing216 or employees of a public entity217 are in the functional custody of the state and thus owed an affirmative duty of p rotection. In Collins v. City of Harker Heights, 218 the Supreme Court unanimous ly held that the Due Process Clause does not impose an independent federal obliga tion constitutional duty of protection from harm at the hands of private parties); Wri ght v. Lovin, 32 F.3d 538, 540 (11th Cir. 1994) (stating that [t]o date, every fe deral circuit court of appeal to address the question of whether compulsory scho ol attendance laws create the necessary custodial relationship between school an d student to give rise to a constitutional duty to protect students from harm by non-state actors has rejected the existence of any such duty (citations omitted) ); D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 137172 (3d Cir. 1992) (en banc) (state did not have due process duty to protect female stu dents from molestation by male students); J.O. v. Alton Sch. Dist., 909 F.2d 267 , 27273 (7th Cir. 1990) (holding that the state does not have a due process duty to protect public school students, as it does with mental patients and prisoners ); see also Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995) (While we do n ot, of course, suggest that public schools as a general matter have such a degre e of control over children as to give rise to a constitutional duty to protect, we have acknowledged that for many purposes school authorities act in loco parentis , with the power and indeed the duty to inculcate the habits and manners of civili ty. (citations omitted)). 215. Schoolchildren have a liberty interest in their bod ily integrity that is protected by the Due Process Clause against deprivation by the state. See Ingraham v. Wright, 430 U.S. 651, 67374 (1977). Therefore, DeShan ey does not apply where the alleged harm is attributed to a state actor, general ly a teacher or other school official. See, e.g., Stoneking v. Bradford Area Sch . Dist., 882 F.2d 720, 724 (3d Cir. 1989) (distinguishing this situation from De Shaney because the injury heresexual molestationresulted from the conduct of a sta te employee, not a private actor). 216. See, e.g., Dawson v. Milwaukee Hous. Aut h., 930 F.2d 1283, 1285 (7th Cir. 1991) (holding that presence in publicly subsi dized housing is not the functional equivalent of being in custody). 217. See, e.g ., Wallace v. Adkins, 115 F.3d 427, 430 (7th Cir. 1997) ([P]rison guards ordered to stay at their posts are not in the kind of custodial setting required to crea te a special relationship for 14th Amendment substantive due process purposes.); Liebson v. N.M. Corr. Dept, 73 F.3d 274, 276 (10th Cir. 1996) (holding that libra rian assigned to provide library services to inmates housed in maximum security unit of state penitentiary was not in states custody or held against her will; em ployment relationship was completely voluntary); Lewellen v. Metro. Govt of Nashvil le, 34 F.3d 345, 34852 (6th Cir. 1994) (workman accidentally injured on school co nstruction project has no substantive due process claim). 218. 503 U.S. 115 (199 2). 42

IV. Constitutional Rights Enforceable Under 1983 upon municipalities to provide certain minimal levels of safety and security in the workplace. 219 b. State-Created Danger In holding that the state had not depr ived Joshua DeShaney of any constitutionally protected rights, the Supreme Court suggested that the result might have been different if the state had played a r ole in creating the dangers to which Joshua was exposed or if it had increased h is vulnerability to these dangers.220 While DeShaney makes clear that the states mere awareness of a risk of harm to an individual will not suffice to impose an affirmative duty to provide protection,221 most circuits hold that if the state creates the danger confronting the individual, it may then have a corresponding duty to protect.222 Moreover, the Su219. Id. at 130. See also Kaucher v. County of Bucks, 455 F.3d 418, 42430 (3d Cir. 2006); Estate of Phillips v. District of C olumbia, 455 F.3d 397, 40608 (D.C. Cir. 2006); Walker v. Rowe, 791 F.2d 507, 51011 (7th Cir. 1986). 220. DeShaney v. Winnebago County Dept of Soc. Servs., 489 U.S. 189, 201 (1989). 221. Id. at 200 (The affirmative duty to protect arises not fro m the States knowledge of the individuals predicament or from its expressions of i ntent to help him.). See also Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir. 199 5) (en banc) (By requiring a custodial context as the condition for an affirmativ e duty, DeShaney rejected the idea that such a duty can arise solely from an off icials awareness of a specific risk or from promises of aid.). 222. See, e.g., Bre en v. Tex. A&M Univ., 485 F.3d 325, 33337 (5th Cir. 2007) (statecreated danger do ctrine requires showing defendant created risk of danger and acted with delibera te indifference, and there was identifiable victim); McQueen v. Beecher Cmty. Schs ., 433 F.3d 460, 464, 469 (6th Cir. 2006) (holding that state-created danger doc trine requires showing of an affirmative act that creates or increases the risk, a special danger to the victim as distinguished from public at large, and the re quisite degree of state culpabilitynamely, deliberate indifference, which means sub jective recklessness); Pena v. DePrisco, 432 F.3d 98, 108 (2d Cir. 2005) (adoptin g state-created danger doctrine); Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005) (Under the statecreated danger theory, [plaintiffs] must prove 1 ) they were members of a limited, precisely definable group, 2) [citys] conduct p ut them at significant risk of serious, immediate, and proximate harm, 3) the ri sk was obvious or known to [city], 4) [city] acted recklessly in conscious disre gard of the risk, and 5) in total, Little Rocks conduct shocks the conscience.); E state of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005) (In order to prevail on a state-created danger claim, a plaintiff must prove (1) the harm ultimately c aused was foreseeable and fairly direct; (2) the state actor acted in willful di sregard for the safety of the plaintiff; (3) there existed some relationship bet ween the state and the plaintiff; (4) the state actors used their authority to c reate an opportunity that otherwise would not have existed for the [harm] to occ ur. (citation omitted)); Estate of Amos v. City of 43

Section 1983 Litigation preme Courts decision in Collins v. City of Harker Heights, 223 that there is no substantive due process right to a safe work environment,224 does not necessaril y preclude the imposition of constitutional liability on state officials who del iberately or intentionally place public employees in a dangerous situation witho ut adequate protection.225 Page, 257 F.3d 1086, 1091 (9th Cir. 2001) ([C]ommon to our cases recognizing a co gnizable section 1983 claim under the danger creation exception is an affirmative act by the police that leaves the plaintiff in a more dangerous position than the one in which they found him. (emphasis added)); Estate of Stevens v. City of Gree n 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 [victim] while constricting access to self-help; it must cut off all avenues of aid without providing a reasonable alternative. Only then may a const itutional injury have occurred.); Seamons v. Snow, 84 F.3d 1226, 1236 (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 of ficials 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 th e dangerous situation that resulted in a victims injury, the absence of a custodi al relationship may not be dispositive); Reed v. Gardner, 986 F.2d 1122, 1126 (7t h Cir. 1993) (holding that plaintiffs . . . may state claims for civil rights vio lations if they allege state action that creates, or substantially contributes t o 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 (2d Cir. 1993) (finding DeShaney not controlling where plaintiff alleged that defen dantofficers had made demonstrators more vulnerable to assaults); Freeman v. Ferg uson, 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 non-custodial setting if the state has taken affirmativ e action which increases the individuals danger of, or vulnerability to, such vio lence beyond the level it would have been at absent state action); Wood v. Ostran der, 879 F.2d 583, 58990 (9th Cir. 1989) (concluding affirmative duty to protect was owed plaintiff by police officer who arrested driver of car in which plainti ff was passenger, impounded the vehicle, and left plaintiff stranded in high-cri me area at 2:30 a.m., resulting in rape of plaintiff). The courts of appeals tha t have adopted the state-created danger doctrine have not agreed about the test that should govern the claim; for a circuit-by-circuit breakdown of state-create d danger decisions, see 1 Martin A. Schwartz, Section 1983 Litigation: Claims an d Defenses 3.09[E] (4th ed. 2004). 223. 503 U.S. 115 (1992). 224. Id. at 130. 22 5. See, e.g., L.W. v. Grubbs, 974 F.2d 119, 12021 (9th Cir. 1992) (concluding tha t 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 ass igned inmate to work alone with plaintiff in clinic); Cornelius v. Town of Highl and Lake, 880 F.2d 348, 359 (11th Cir. 1989) (holding that where defendants had put plaintiff, a town clerk, in a unique position of 44

IV. Constitutional Rights Enforceable Under 1983 E. Use of Force by Government Officials Government officials may be subject to 1983 lawsuits when they use force to cont rol criminal suspects, pretrial detainees, and convicted prisoners. The source o f the right for claims against these officials depends on the plaintiffs status a t the time the officials used force: the Fourth Amendment226 applies to arrestee s and other seized individuals and prohibits the use of unreasonable force; 227 th e Due Process Clause applies to pretrial detainees and protects them against exce ssive force that amounts to punishment;228 and the Eighth Amendment229 applies to prisoners and prohibits cruel and unusual punishment.230 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. Under the substantive due process component of the Fourteenth Amendm ent, use-of-force claims are actionable if they constitute a deprivation of liber ty . . . without due process of law. 231 A substantive due process claim challeng ing the use of force may lie only if neither danger by causing inmates who were inadequately supervised to be present in town hall, then under the special danger approach as well as the special relationship approach . . . the defendants owed [the plaintiff] a duty to protect her from th e harm they created). But see Mitchell v. Duval County Sch. Bd., 107 F.3d 837, 83 940 (11th Cir. 1997) (per curiam) (noting that Cornelius may not have survived Col lins v. City of Harker Heights, where the Supreme Court held that a voluntary em ployment relationship does not impose a constitutional duty on government employ ers to provide a reasonably safe work environment, but holding that even if Corne lius has not been undermined, plaintiff did not make out a state-created danger claim where the school neither placed [plaintiff] in a dangerous location nor pla ced the assailants in the place where [plaintiff] was). 226. U.S. Const. amend. I V (stating that the right of the people to be secure in their persons . . . again st unreasonable . . . seizures, shall not be violated). 227. See Graham v. Connor , 490 U.S. 386, 38895 (1989). 228. Id. at 395 (citing Bell v. Wolfish, 441 U.S. 5 20, 53539 (1979)). 229. U.S. Const. amend. VIII (stating that cruel and unusual pu nishments [shall not be] inflicted). 230. See Hudson v. McMillian, 503 U.S. 1, 67 (1992); Whitley v. Albers, 475 U.S. 312, 31819 (1986). 231. U.S. Const. amend. XI V 1 (stating that [n]o State shall . . . deprive any person of life, liberty . . . without due process of law). 45

Section 1983 Litigation the Fourth nor the Eighth Amendment applies. 232 For example, if the use of forc e constituted a seizure within the meaning of the Fourth Amendment, the claim must be analyzed only under the Fourth Amendment reasonableness standard. 233 In other words, the textually explicit Fourth Amendment protection preempts the more gen eralized substantive due process protection. In contrast, if officers engaged in a high-speed pursuit did not seize the claimant, the Fourth Amendment would not a pply, and the use-of-force claim may be actionable only under the substantive du e process component of the Fourteenth Amendment.234 Although the Due Process Clau se protects a pretrial detainee from the use of excessive force that amounts to punishment, 235 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 cases have not resolved the question whether the Fourth Amendment co ntinues to provide individuals with protection against the deliberate use of exc essive physical force beyond the point at which arrest ends and pretrial detenti on begins . . . .236 As a result, some lower courts question whether the Fourth A mendment applies to force claims asserted by pretrial detainees. 237 232. Graham v. Connor, 490 U.S. 386, 395 (1989); see also County of Sacramento v . Lewis, 523 U.S. 833, 84243 (1998); United States v. Lanier, 520 U.S. 259, 272 n .7 (1997); Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion). 233 . Graham, 490 U.S. at 395 n.10. 234. County of Sacramento, 523 U.S. at 84245. Cf. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) (termination of high-speed pursui t by ramming pursued vehicle from behind constituted Fourth Amendment seizure). 23 5. Graham, 490 U.S. at 395 n.10. 236. Id. 237. See, e.g., Riley v. Dorton, 115 F .3d 1159, 116364 (4th Cir. 1997) (detailing the conflict in the circuits: The Seco nd, Sixth, and Ninth Circuits extend Fourth Amendment coverage to the period the suspect remains with the arresting officers. . . . [However], we agree with the Fifth, Seventh, and Eleventh Circuits that the Fourth Amendment does not embrac e a theory of continuing seizure and does not extend to the alleged mistreatment o f 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 b een seized within meaning of Fourth Amendment by his arrest and conditional releas e after posting bail); 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 3.12[D][4][b] (4th ed. 2004). 46

IV. Constitutional Rights Enforceable Under 1983 1. Unreasonable Force Claims Under the Fourth Amendment Whether police officers have violated the Fourth Amendment during an investigatory stop or arrest depend s on the resolution of two issues: (1) In using force, did officials seize the sus pect within the meaning of the Fourth Amendment?;238 and, if so, (2) Was the for ce objectively unreasonable? 239 If officers both seized the plaintiff and used objectively unreasonable force, then the plaintiff has established a Fourth Amen dment violation. If no seizure occurred, then the use of force is not actionable under the Fourth Amendment; the force, however, might be actionable under the F ourteenth Amendment.240 Resolving these two issues requires scrutiny of the Supr eme Courts definition of a seizure and of objectively unreasonable force. The Supreme Court has articulated the following three definitions for determining when offi cers have seized an individual: 1. Whether the officer, by means of physical forc e or show of authority, has in some way restrained the liberty of a citizen. 241 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.242 3. Whether th ere was a governmental termination of freedom of movement through means intention ally applied. 243 These definitions focus on the assertion of governmental author ity and the use of physical force. When officers use physical force, the first 238. See Graham, 490 U.S. at 39596; see also Brower v. County of Inyo, 489 U.S. 5 93, 595600 (1989) (determining that use of blind roadblock was a Fourth Amendment seizure, and remanding to determine, inter alia, if seizure was reasonable). 23 9. See Graham, 490 U.S. at 39596, and Brower, 489 U.S. at 595600. 240. See general ly County of Sacramento v. Lewis, 523 U.S. 833, 84243 (1998) (stating that if pol ice officers use of force during high-speed pursuit did not result in seizure, su bstantive due process analysis is appropriate). 241. Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). 242. California v. Hodari D., 499 U.S. 621, 628 (1991); see also INS v. Delgado, 466 U.S. 210, 215 (1984); United States v. Mendenhall, 446 U.S. 544, 55455 (1980) (Stewart & Rehnquist, JJ.). 243. Brower, 489 U.S. at 59799 (use of roadblock to stop fleeing motorist constituted seizure; whether act was inte ntional is an objective inquirythe question is whether a reasonable officer would have believed that the means used would have caused suspect to stop). Accord Sc ott v. Harris, 127 S. Ct. 1769, 1776 (2007). 47

Section 1983 Litigation and third definitions of seizure are applicable. The first definition simply sta tes that the use of physical force can effectuate a seizure; the third definitio n, 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. 244 a. Tennessee v. Garner Determining whether officers used u nreasonable force when they seized a suspect is a fact-specific inquiry using th e Fourth Amendment standard of reasonableness. In Tennessee v. Garner,245 the Co urt held that the use of deadly force was objectively unreasonable where a polic e officer, who had reason to believe that a suspect had just burglarized a home, commanded the fleeing suspect to stop, and shot and killed him when he did not stop. 246 The Court held that a policy that allows the use of deadly force again st all fleeing felons violates the Fourth Amendment; the use of deadly force is reasonable only if the officer has probable cause to believe that the suspect po ses a risk of serious harm to the officer or others. 247 The Court stated that if the suspect threatens the officer with a weapon or there is probable cause to b elieve that he has committed a crime involving the infliction or threatened infl iction of serious physical harm, deadly force may be used if necessary to preven t escape, and if, where feasible, some warning has been given. 248 Because burgla ry does not necessarily involve 244. County of Sacramento, 523 U.S. at 84344 (stating that no seizure occurred wh en officer accidentally hit passenger of pursued motorcyclist). Most excessive f orce claims under the Fourth Amendment involve the infliction of physical injury ; however, claims involving psychological injury are also actionable. See, e.g., McDonald v. Haskins, 966 F.2d 292, 29495 (7th Cir. 1992) (holding that nine-year -old child stated valid unreasonable force claim under Fourth Amendment by alleg ing that an officer held a gun to childs head while executing a search warrant, e ven though he posed no threat to the officer and did not attempt to flee); see g enerally Hudson v. McMillian, 503 U.S. 1, 16 (1992) (Blackmun, J., concurring) ( psychological harm can constitute cruel and unusual punishment) (citing Wisniewski v. Kennard, 901 F.2d 1276, 1277 (5th Cir. 1990)) (guard placing a revolver in in mates mouth and threatening to blow prisoners head off). 245. 471 U.S. 1 (1985). 24 6. Id. at 34, 911. 247. Id. at 11. Cf. Scott v. Harris, 127 S. Ct. 1769 (2007), di scussed infra notes 25981 and accompanying text. 248. Garner, 471 U.S. at 11. 48

IV. Constitutional Rights Enforceable Under 1983 the infliction of serious physical harm and because the suspect posed no danger t o the officer or the community, the officers use of deadly force violated the Fou rth Amendment. 249 The courts of appeals have prescribed caution in relying on th e officers version of a deadly force encounter when the victim is not available t o counter it. For example, in Scott v. Henrich, 250 the Ninth Circuit stated: Deadly force cases pose a particularly difficult problem under this regime becau se the officer defendant is often the only surviving eyewitness. Therefore, the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his storythe person shot deadis unable to testif y. The judge must carefully examine all the evidence in the record, such as medi cal reports, contemporaneous statements by the officer and the available physica l evidence, as well as any expert testimony proffered by the plaintiff, to deter mine whether the officers story is internally consistent and consistent with othe r known facts. In other words, the court may not simply accept what may be a sel fserving account by the police officer. It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officers story, an d consider whether this evidence could convince a rational factfinder that the o fficer acted unreasonably.251 b. Graham v. Connor In Graham v. Connor, 252 the Supreme Court extended Garners o bjective reasonableness standard to any use of force by a law enforcement office r during an arrest, investigatory stop, or other seizure. The Court in Graham he ld that all claims that law enforcement officers have 249. Id. at 2122. 250. 39 F.3d 912 (9th Cir. 1994). 251. Id. at 915; see also Ing le v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (noting that because a deceased suspect is not available to contradict a police officers versi on of events, courts must critically assess all other evidence in the case and ma y not simply accept what may be a self-serving account by the police officer); OBe rt v. Vargo, 331 F.3d 29, 3738 (2d Cir. 2003) (holding that summary judgment shou ld not be granted to defendant officer in a deadly force case based solely on wh at may be officers self-serving account of incident; court must consider circumstan tial evidence that, if believed, would tend to discredit the police officers stor y, and consider whether this evidence would convince rational factfinder that of ficer acted unreasonably (quoting Scott, 39 F.3d at 915 (9th Cir. 1994)); Abraham v. Raso, 183 F.3d 279, 294 (3d Cir. 1999). 252. 490 U.S. 386 (1989). 49

Section 1983 Litigation used excessive forcedeadly or notin the course of an arrest, investigatory stop, o r other seizure of a free citizen should be analyzed under the Fourth Amendment an d its reasonableness standard, rather than a substantive due process approach.253 I t held that three factors were relevant in determining the reasonableness of for ce: (1) the severity of the crime at issue; (2) whether the suspect poses an immedi ate threat to the safety of the officers or others; and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.254 In articulating the se factors, the Court did not state that these were the only factors relevant to the reasonableness inquiry. Reasonableness requires a balancing of interests, e valuating the circumstances present at the time of the officers act, and allowing the officers some deference because they often have to make split-second judgmen tsin circumstances that are tense, uncertain, and rapidly evolvingabout the amount of force that is necessary in a particular situation. 255 This reasonableness in quiry is an objective one: An officers evil intentions will not make a Fourth Amen dment violation out of an objectively reasonable use of force; nor will an offic ers good intentions make an objectively unreasonable use of force constitutional. 256 Although plaintiffs need not prove that officers acted in bad faith in order to demonstrate that the use of force violated the Fourth Amendment,257 such evi dence may be admissible to impeach the officers credibility. 258 c. Scott v. Harr is In Scott v. Harris, 259 the Supreme Court applied the Fourth Amendment object ive reasonableness standard to a police officers use of force to end a high-speed police pursuit. The Court held that the defendant police officers attempt to term inate a dangerous high-speed car chase 253. Id. at 395. The Court in Graham acknowledged that the Fourth Amendment has l ong recognized that the right to make an arrest or investigatory stop necessaril y carries with it the right to use some degree of physical coercion or threat th ereof to effect it. Id. at 396. 254. Id. at 396. 255. Id. at 39697. Fourth Amendme nt excessive force claims are subject to qualified immunity. See Saucier v. Katz , 533 U.S. 194 (2001); see also infra discussion Part XV. 256. Graham, 490 U.S. at 397. 257. Id. 258. Id. at 399 n.12. 259. 127 S. Ct. 1769 (2007). 50

IV. Constitutional Rights Enforceable Under 1983 that threatens the lives of innocent bystanders [by ramming the motorists car fro m behind] does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. 260 Victor Harris, nineteen years o ld at the time, was clocked traveling seventy-three miles per hour in a fifty-fi ve mile per hour zone. Timothy Scott, the deputy sheriff, activated his blue lig hts and siren, but Harris failed to pull over, instead accelerating his speed. T he videotape of the chase made from the pursuing police cruiser showed Harriss vehicle racing down narrow, two-lane roads in the dead of night at speeds that a re shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their res pective shoulders to avoid being hit. We see it run multiple red lights and trav el for considerable periods of time in the occasional center left-turn-only lane , chased by numerous police cars forced to engage in the same hazardous maneuver s just to keep up. Far from being the cautious and controlled driver the lower c ourt depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bys tanders alike at great risk of serious injury.261 Deputy Scott had initially decided to terminate the encounter by employing a Prec ision Intervention Technique (PIT) maneuver, which causes a fleeing vehicle to sp in to a stop, but instead applied his push bumper to the rear of [Harriss] vehicle . As a result, [Harris] lost control of his vehicle, which left the roadway, ran down an embankment, overturned, and crashed. [Harris] was badly injured and was rendered quadriplegic. 262 Justice Antonin Scalia wrote the opinion for the Cour t. The Court agreed with Harris that Deputy Scotts actions constituted a seizure because the officer terminated Harriss freedom of movement through the means inte ntionally applied, namely, ramming Harriss car from behind. 263 The Court, howeve r, held that the seizure did not violate the Id. at 1779. Id. at 177576 (footnotes omitted). Id. at 1773 (footnote omitted). I d. at 1776. When termination of a high-speed pursuit does not culminate in a sei zure, the officers actions are evaluated under a substantive due process, shocks t he conscience purpose-to-cause-harm standard. County of Sacramento v. Lewis, 523 U.S. 833 (1998). 260. 261. 262. 263. 51

Section 1983 Litigation Fourth Amendment because it was objectively reasonable. Significantly, the summa ry judgment evidence included the videotape of the chase made from the pursuing police cruiser; the Court posted the video on its website. Justice Stephen G. Br eyer, in his concurring opinion, found that the videotape made a difference, and urged the reader to view it. Excessive force cases frequently present genuine d isputed issues of material facts that make resolution on summary judgment inappr opriate. In Harris, however, the Court held that the videotape enabled resolutio n of the case in favor of the defendant on summary judgment. There were no alleg ations or indications that the videotape was doctored or altered, or that it dis torted the incident. The Court said that when the material facts are not in disp ute, the reasonableness of the use of force is a pure question of law. 264 Even so , the Court had to slosh [its] way through the factbound morass of reasonableness. 2 65 The Court found Tennessee v. Garner266 distinguishable. In Garner, the Court held that it was unreasonable for the police to kill a young, slight, and unarmed b urglary suspect, by shooting him in the back of the head while he was running away on foot, and when the officer could not reasonably have believed that [the suspe ct] . . . posed any threat, and never attempted to justify his actions on any basi s other than the need to prevent an escape. 267 The Court in Scott v. Harris stres sed that the necessity for using deadly force referred to in Garner was not the ne cessity to prevent escape, but the necessity to prevent serious physical harm to the officers or others. 268 By way of example only, Garner hypothesized that dea dly force may be used if necessary to prevent escape when the suspect is known to have committed a crime involving the infliction or threatened infliction of serio us physical harm, so that his mere being at large poses an inherent danger to soc iety. 269 Harris did not involve a police officers shooting of an unHarris, 127 S. Ct. at 1773. Id. at 1778. 471 U.S. 1 (1985). Harris, 127 S. Ct. a t 1777 (citations omitted) (following Brower v. County of Inyo, 489 U.S. 593, 59 697 (1989)). 268. Harris, 127 S. Ct. at 177677 n.8. 269. Id. at 1777. 264. 265. 266. 267. 52

IV. Constitutional Rights Enforceable Under 1983 armed, unthreatening suspect, but an officers bumping a fleeing motorist whose fl ight posed an extreme danger to innocent individuals. The Court said that Garner did not establish a magical on/off switch that triggers rigid preconditions when ever an officers actions constitute deadly force. Garner was simply an application of the Fourth Amendments reasonableness test to the use of a particular type of for ce in a particular situation. 270 Further, it ruled that, in assessing the reason ableness of the officers use of force, it is appropriate to consider the relative culpability of the parties. It was significant that Victor Harris intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing [Harris] for nearly 10 miles, but he ignored t heir warning to stop. By contrast, those who might have been harmed had Scott no t taken the action he did were entirely innocent.271 The Court also ruled that the police were not required to take the chance of cal ling off the pursuit and hoping for the best: Whereas Scotts actionramming [Harris] off the roadwas certain to eliminate the risk that [Harris] posed to the public, ceasing pursuit was not. . . . [T]here would have been no way to convey convinc ingly to [Harris] that the chase was off, and that he was free to go. 272 Further more, the Court said that it was loath to lay down a rule requiring the police to allow fleeing suspects to get a way whenever they drive so recklessly that they put other peoples lives in danger . It is obvious the perverse incentives such a rule would create: Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 9 0 miles per hour, crosses the double-yellow line a few times, and runs a few red lights. . . . Instead, we lay down a more sensible rule: A police officers attem pt to terminate a dangerous high-speed car chase that threatens the lives of inn ocent bystanders does not violate the 270. Id. (citation omitted). 271. Id. at 1778. 272. Id. at 177879. 53

Section 1983 Litigation Fourth Amendment, even when it places the fleeing motorist at risk of serious in jury or death.273 The Court thus held that, because the car chase that Harris initiated posed subs tantial and immediate risk of serious physical injury to others, Deputy Scotts at tempt to terminate the chase by forcing Harris off the road was reasonable. Sinc e no reasonable jury could find otherwise, Scott was entitled to summary judgmen t. Justice Ruth Bader Ginsburg, concurring, said that she did not read the Courts opinion as creating a mechanical per se rule, but rather as based on a fact-spe cific evaluation of reasonableness. Among the relevant considerations are: Were t he lives and well-being of others (motorists, pedestrians, police officers) at r isk? Was there a safer way, given the time, place, and circumstances, to stop th e fleeing vehicle? 274 By contrast, Justice Breyer read the Courts decision as art iculating a per se rule, namely, [a] police officers attempt to terminate a dangero us high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. 275 Breyer found that this statement by the majority is too absolute, and that whether a high-speed chase violates the Fourth Amendment m ay well depend upon more circumstances than the majoritys rule reflects. 276 Justi ce John Paul Stevens, the sole dissenter in Harris, argued that [w]hether a perso ns actions have risen to a level warranting deadly force is a question of fact be st reserved for a jury, 277 and that the Supreme Court in this case usurped the f unction of the jury by adopting a per se rule that presumes its own version of th e facts.278 Justice Stevens sarcastically referred to eight of the jurors on this Court279 and [m]y colleagues on the jury. 280 Stevens opined that the police action created unacceptable inherent risks of harm, particularly when less drastic mea sures were available, such as the use of stop sticks, a de273. 274. 275. 276. 277. 278. 279. 280. Id. Id. Id. at 1781 (Breyer, J., concurring) (quoting majority opinion). Id. (Br eyer, J., concurring). Id. at 1784 (Stevens, J., dissenting). Id. at 1785 (Steve ns, J., dissenting). Id. at 1781 (Stevens, J., dissenting). Id. at 1782 (Stevens , J., dissenting). 54

IV. Constitutional Rights Enforceable Under 1983 vice which can be placed across the roadway and used to flatten a vehicles tires slowly to safely terminate a pursuit.281 d. Other Fourth Amendment Excessive Forc e Issues The circuit courts have taken different positions on whether an officers conduct prior to the use of force should be considered in evaluating the object ive reasonableness of his actions. 282 Some courts consider only actions immedia tely before force was used, holding that the officers pre-shooting conduct is not relevant and inadmissible.283 The Second Circuit view is that the [shooting office rs] actions leading up to the shooting are irrelevant to the objective reasonable ness of his conduct at the moment he decided to employ deadly force. 284 The Seco nd Circuit considers only the officers knowledge of circumstances immediately prio r to and at the moment that he made the splitsecond decision to employ deadly fo rce.285 By contrast, the First Circuit considers the actions of the government off icials leading up to the seizure, not just at the moment of the shooting. 286 The Third Circuit holds that the circumstances considered in evaluating the objecti ve reasonableness of the force used should not automatically exclude all context and causes prior to the moment force is employed because, after all, [h]ow is the reasonableness of a bullet striking someone to be assessed if not by examining t he preceding events? 287 As a slight variation, the Tenth Circuit holds that cons ideration may be given to the police officers conduct in the moments leading up t o the suspects threat to use force if the officers conduct was so immediately conne cted to the suspects threat that it should be considered in evaluating the reasona bleness of the officers forceful response. 288 281. Id. at 1785 n.9 (Stevens, J., dissenting). 282. See Billington v. Smith, 29 2 F.3d 1177, 118788 (9th Cir. 2002) (explaining different circuits approaches); see also 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 3.12[D] (4th ed. 2004). 283. Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991). 284. Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996). 2 85. Id. 286. St. Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995); acc ord Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005). 287. Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999). 288. Allen v. Muskogee, 119 F.3d 837, 8 4041 (10th Cir. 1997). 55

Section 1983 Litigation Prior to the Supreme Courts decision in Scott v. Harris, 289 some courts held tha t when deadly force is used, 290 the district courts instructions should not mere ly articulate the general Graham objective reasonableness standard, but should i nclude the more specific detailed and demanding Garner standard.291 In deadly force cases, these decisions reasoned, the general Graham standard does not adequately inform the jury about when a police officer may constitutionally use deadly for ce. 292 The decision in Harristhat Garner was simply an application of the genera lly applicable Fourth Amendment objective reasonableness standardhas led some court s to hold that a special instruction on deadly force is no longer required. 293 Whether an officer used excessive force in violation of the Fourth Amendment is normally a factual issue for the jury, and summary judgment . . . in excessive fo rce cases should be granted sparingly.294 However, some Fourth Amendment excessiv e force cases can be decided on summary judgment,295 especially when qualified i mmunity is asserted as a defense. 296 Further, summary judgment may be appropri289. 127 S. Ct. 1769 (2007). See supra Part IV.E.1.c. 290. The federal courts ge nerally define deadly force for Fourth Amendment purposes as force carrying a substantial risk of causing death or serious bodily inj ury. Gutierrez v. San Antonio, 139 F.3d 441, 446 (5th Cir. 1998). Accord Smith v. City of Hemet, 394 F.3d 689 (9th Cir.) (en banc), cert. denied, 125 S. Ct. 2938 (2005); Estate of Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), cert. denied, 522 U.S. 1116 (1998). 291. Rahn v. Hawkins, 464 F.3d 813, 81718 (8t h Cir. 2006); Monroe v. City of Phoenix, 248 F.3d 851, 85960 (9th Cir. 2001). 292 . Rahn, 464 F.3d at 81718; Monroe, 248 F.3d at 85960. 293. Acosta v. Hill, 504 F.3 d 1323 (9th Cir. 2007) (overruling Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 2001)); Blake v. City of New York, No. 05-Civ. 6652 (BSJ), 2007 U.S. Dist. LEXIS 49160 (S.D.N.Y. July 3, 2007). 294. Abdullahi v. City of Madison, 423 F.3d 763, 773 (7th Cir. 2005); accord Smith v. City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005). 295. See Scott v. Harris, 127 S. Ct. 1769 (2007); Untalan v. City o f Lorain, 430 F.3d 312, 31417 (6th Cir. 2005) (upholding district courts decision to grant defendant police officers summary judgment motion based on qualified imm unity because, based on the evidence, no reasonable juror could find that the of ficer violated decedents Fourth Amendment rights). 296. Saucier v. Katz, 533 U.S. 194, 20001 (2001) (stressing the importance of resolving immunity questions at th e earliest possible stage in litigation); see infra Part XV. 56

IV. Constitutional Rights Enforceable Under 1983 ate when there is a videotape of the incident that was not doctored or altered, and that accurately depicts the incident.297 Fourth Amendment excessive force cl aims are often accompanied by due process claims of failure to provide medical t reatment. In City of Revere v. Massachusetts General Hospital,298 the Supreme Co urt held that due process requires the state to provide medical care to persons . . . who have been injured while being apprehended by the police. 299 The Court d id not articulate a particular due process standard, but it did state that the du e process rights of [detainees] are at least as great as the Eighth Amendment pr otections available to a convicted prisoner. 300 To prove an Eighth Amendment vio lation, a convicted prisoner must demonstrate deliberate indifference to a serio us medical need. 301 Many circuits adopt the Eighth Amendment deliberate indiffe rence standard for detainee medical care cases. 302 2. Prisoner Excessive Force Claims Under the Eighth Amendment Although malice is not an element of a Fourth Amendment excessive force claim, it is the central inquiry under the Eighth Amen dment for a prisoners claim alleging the use of excessive force by prison guards. The Eighth Amendment standard is whether force was applied in a good-faith effor t to maintain or restore discipline, or maliciously and sadistically to cause ha rm. 303 In two decisions, the Supreme Court held that this standard applied to th e use of force to control prisoners, whether to diffuse a riot304 or to impose d iscipline. 305 Harris, 127 S. Ct. at 1775. 463 U.S. 239 (1983). Id. at 244. Id. Estelle v. Gamb le, 429 U.S. 97, 10205 (1976). See, e.g., Estate of Moreland v. Dieter, 395 F.3d 747, 758 (7th Cir. 2005); Watkins v. City of Battle Creek, 273 F.3d 682, 68586 (6 th Cir. 2001); Napier v. Madison County, 238 F.3d 739, 742 (6th Cir. 2001); Wagn er v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000); Horn v. Madison County Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994). 303. Hudson v. McMillian, 503 U.S. 1, 7 (1992); accord Whitley v. Albers, 475 U.S. 312, 32021 (1986). 304. Whitley, 475 U .S. at 32122. 305. Hudson, 503 U.S. at 610. 297. 298. 299. 300. 301. 302. 57

Section 1983 Litigation In Whitley v. Albers, 306 the Supreme Court held that five factors are relevant in determining whether officers acted maliciously when they used force to quell a prison riot: (1) the need for force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the exten t of the threat to the safety of staff and inmates; and (5) any efforts made to te mper the severity of a forceful response. 307 The Court in Whitley said that cour ts should defer to the judgment of prison officials, who typically have to make decisions regarding the use of force in pressured, tense circumstances. 308 The Supreme Court later applied the Whitley standards in Hudson v. McMillian, 309 wh ere officials did not face the exigencies of a prison riot. The Court in Hudson held that prisoners who assert Eighth Amendment excessive force claims are not r equired to establish significant injury. 310 However, plaintiffs must allege somet hing more than a de minimus injury unless the force used was repugnant to the con science of mankind. 311 Thus, the extent of an injury became just one factor in d etermining whether the official acted with malice. In Whitley, the Supreme Court stated that [u]nless it appears that the evidence, viewed in the light most favo rable to the plaintiff, will support a reliable inference of wantonness in the i nfliction of pain under the [Eighth Amendment] standard we have described, the c ase should not go to the jury. 312 475 U.S. 312 (1986). Id. at 321. See id. at 320; accord Hudson, 503 U.S. at 6. 5 03 U.S. 1 (1992). Id. at 9. Id. at 910 (citation omitted); see Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc) (holding that de minimus injury doe s not violate Eighth Amendment); see also Cummings v. Malone, 995 F.2d 817, 82223 (8th Cir. 1993) (asserting that prisoners excessive force claim required showing of actual physical injury); Rankin v. Klevenhagen, 5 F.3d 103, 108 (5th Cir. 1993 ) (noting that although Hudson removed the serious . . . injury requirement, . . . c ertainly some injury is still required). 312. Whitley v. Albers, 475 U.S. 312, 322 (1986). 306. 307. 308. 309. 310. 311. 58

IV. Constitutional Rights Enforceable Under 1983 3. Pretrial Detainee Excessive Force Claims Under the Fourteenth Amendment In Gr aham v. Connor, 313 the Supreme Court, citing Bell v. Wolfish,314 stated that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment. 315 More recently, however, the Court held, in Count y of Sacramento v. Lewis, 316 that to violate the substantive due process compon ent of the Fourteenth Amendment, an officials actions must shock the conscience. 31 7 Officials commit conscience-shocking actions when they use force with an inten t to harm that is unrelated to the legitimate object of arrest. 318 The Court deri ved this malice standard by likening a police officers actions during a high-spee d pursuit to a prison guards actions during a riot:319 both must act quickly with little time for reflection. However, the Court did not state that the shocks-the -conscience standard applies to excessive force claims raised by pretrial detaine es. There is a conflict among the circuits concerning the appropriate due proces s standard for detainee excessive force claims.320 For example, the First Circui t applies the Bell punishment standard, 321 while the Third, Fourth, and Fifth C ircuits have adopted a malice standard, i.e., whether the force was applied in a good-faith effort to restore discipline or maliciously and sadistically to caus e harm.322 The Seventh Circuit holds that the Bell standard applies to detainee due process challenges to general practices, rules, and restrictions on pretrial confinement, but that detainee challenges to specific acts or failures to act b y government officials are governed by the deliberate indifference test.323 490 U.S. 386 (1989). 441 U.S. 520 (1979). Graham, 490 U.S. at 395 n.10 (dictum). 523 U.S. 833 (1998). Id. at 84647 (citing Rochin v. California, 342 U.S. 165, 17 273 (1952)). Id. at 836. Id. at 85253. See 1 Schwartz, supra note 282, 3.16[A]. OCo nnor v. Huard, 117 F.3d 12 (1st Cir. 1997), cert. denied, 522 U.S. 1047 (1998). Carr v. Deeds, 453 F.3d 593, 605 (4th Cir. 2006); Fuentes v. Wagner, 206 F.3d 33 5, 34748 (3d Cir. 2000); Valencia v. Wiggins, 981 F.2d 1440, 144546 (5th Cir. 1993 ). See also United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999). 323. Tesch v . City of Green Lake, 157 F.3d 465 (7th Cir. 1998). 313. 314. 315. 316. 317. 318. 319. 320. 321. 322. 59

Section 1983 Litigation A federal district judge faced with a detainee excessive force claim must apply the controlling circuit decisional law.324 If such decisional law does not exist , the authors recommend application of the Bell standard. The Court, in Bell, an alyzing the substantive due process rights of pretrial detention in detail, stat ed: In evaluating the constitutionality of conditions or restrictions of pretrial de tention that implicate only the protection against deprivation of liberty withou t due process of law, we think that the proper inquiry is whether those conditio ns amount to punishment of the detainee. For under the Due Process Clause, a det ainee may not be punished prior to an adjudication of guilt in accordance with d ue process of law. . . . A court must decide whether the disability is imposed f or the purpose of punishment or whether it is but an incident of some other legi timate governmental purpose. Absent a showing of an expressed intent to punish o n the part of detention facility officials, that determination generally will tu rn on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it and whether it appears excessive in relation to the alternative purpose. . . . Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment. Conversely, if a restriction or condition is not reasonably related to a legitimate goalif it is arbitrary or pur poselessa court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua det ainees.325 In the authors view, Graham and Bell strongly support the application of the due process standard to detainee excessive force claims. 326 F. Arrests and Searches Section 1983 complaints challenging law enforcement arrests and searches require the federal district court to determine the Fourth Amendment limitations on arr ests and searches. Given that the Supreme Court has decided more than 300 Fourth Amendment cases 324. See compilation of courts of appeals decisions in 1 Schwartz, supra note 28 2, 3.16[A][1]. 325. Bell, 441 U.S. at 53539. 326. OConnor, 117 F.3d 12. 60

IV. Constitutional Rights Enforceable Under 1983 since its decision in Boyd v. United States327 the first Supreme Court decision s eriously considering the Fourth Amendment comprehensive coverage of this volumino us subject is beyond the scope of this monograph. The critical issue in most 198 3 unconstitutional arrest cases is whether the officer had probable cause to arr est. Probable cause is a complete defense to a 1983 unconstitutional arrest clai m brought under the Fourth Amendment.328 Probable cause exists when the facts and circumstances within the officers knowledge . . . are sufficient to warrant a pr udent person, or one of reasonable caution, in believing, in the circumstances s hown, that the suspect has committed, is committing, or is about to commit an of fense. 329 Because probable cause is a wholly objective, reasonable officer standar d, the officers subjective motivation is irrelevant.330 A warrantless arrest in a public place comports with the Fourth Amendment so long as there was probable c ause to arrest the suspect for some crimethe probable cause need not be for the c rime articulated by the arresting officer, or even for a closely related crime. 33 1 An arrest in the arrestees home generally requires an arrest warrant and reason to believe the suspect is in the home. 332 There is a conflict in the circuits as to who has the burden of proof on a 1983 unconstitutional arrest claim. 333 S ome courts hold that the plaintiff has the burden of proving that the arrest vio lated the Fourth 327. 116 U.S. 616 (1886). 328. See Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 19 96); Singer v. Fulton County Sheriff, 63 F.3d 110, 11819 (2d Cir. 1995). 329. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979); accord Maryland v. Pringle, 540 U.S. 366, 37071 (2003). 330. Whre n v. United States, 517 U.S. 806, 813 (1996) (Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.). 331. Devenpeck v. Alford , 543 U.S. 146, 15354 (2004). 332. Payton v. New York, 445 U.S. 573, 58788 (1980). An in-home arrest without a warrant is constitutional only if the officer eithe r gets consent to enter the home or reasonably finds exigent circumstances. Id. See also Brigham City v. Stuart, 126 S. Ct. 1943, 194748 (2006) (law enforcement officer may enter home without warrant if officer reasonably believes entry is n eeded to render emergency assistance to injured occupant or to protect an occupan t from imminent injury). 333. See Davis v. Rodriguez, 364 F.3d 424, 434 n.8 (2d C ir. 2004) (describing conflict among the circuits). 61

Section 1983 Litigation Amendment.334 The Ninth Circuit, for instance, has held that a 1983 plaintiff at all times had the ultimate burden of proving to the jury that she had been seize d unreasonably in violation of the Fourth Amendment. 335 In a subsequent decision , the Ninth Circuit explained that [a]lthough the plaintiff bears the burden of proof on the issue of unlawful arre st, she can make a prima facie case simply by showing that the arrest was conduc ted without a valid warrant. At that point, the burden shifts to the defendant t o provide some evidence that the arresting officers had probable cause for a war rantless arrest. The plaintiff still has the ultimate burden of proof, but the b urden of production falls on the defendant.336 The Eleventh Circuit has ruled that [t]he burden of going forward with evidence e stablishing the existence of probable cause is on the defendant in a 1983 action . 337 Similarly, other circuits have ruled that when a 1983 plaintiff alleges tha t she was arrested without probable cause, the defendant has the burden of provi ng probable cause. 338 The position finds support in the common-law principle th at probable cause is a defense to a false arrest claima principle that has been h eld to apply to 1983 unconstitutional arrest claims.339 Courts of appeals decisi ons consistently state that probable cause normally presents a question of fact for the jury, unless there is only one reasonable determination possible. 340 Ther efore, a district court may conclude that probable cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not su pport a contrary factual finding, and may enter summary judgment 334. See, e.g., Dubner v. San Francisco, 266 F.3d 959, 965 (9th Cir. 2001); Rank in v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998); Larez v. Holcomb, 16 F.3d 151 3, 1517 (9th Cir. 1994). 335. Larez, 16 F.3d at 1517. 336. Dubner, 266 F.3d at 9 65. 337. Rankin, 133 F.3d at 1436. 338. Karr v. Smith, 774 F.2d 1029, 1031 (10th Cir. 1985). 339. See, e.g., Raysor v. Port Auth., 768 F.2d 34, 40 (2d Cir. 1985 ) (holding that the defendant has the burden of proving that the arrest was autho rized). 340. Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007); Radvansky v. Ci ty of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005); see Montgomery v. De Sim one, 159 F.3d 120, 124 (3d Cir. 1998). 62

IV. Constitutional Rights Enforceable Under 1983 accordingly. 341 It seems that federal courts are able to resolve a large percent age of probable cause issues as a matter of law. Further, Fourth Amendment chall enges to arrests and searches are subject to qualified immunity.342 In some 1983 Fourth Amendment cases it is necessary to analyze the different components of t he law enforcement officers actions separately. The Supreme Courts decision in Mue hler v. Mena343 provides a valuable illustration. In that case, the plaintiff, a n occupant of the premises being searched, was detained, handcuffed, and questio ned while the officers executed the search warrant; the Court analyzed each of t hese actions separately and found no violation of the Fourth Amendment.344 On th e detention issue, the Court held that its decision in Michigan v. Summers 345 e stablished that police officers who execute a search warrant may detain any indi viduals on the premises. 346 An officers authority to detain incident to a search supported by probable cause is implicit; it does not depend on the quantum of proo f justifying detention or the extent of the intrusion to be imposed by the seizu re. 347 On the handcuffing claim, the Muehler Court held that the plaintiffs detent ion in handcuffs for the length of the search was consistent with . . . Michigan v. Summers. 348 Justice Kennedy, concurring, pointed out that excessively tight or prolonged handcuffing may give rise to a 1983 Fourth Amendment excessive forc e claim. 349 Finally, the Court held that police questioning of a person detaine d during the execution of a search warrant does not require independent probable cause because mere police questioning does not constitute a seizure. 350 341. Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (citation omit ted). Accord Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007) (where facts not i n dispute, existence of probable cause is issue of law for court). 342. See infr a Part XV. 343. 544 U.S. 93 (2005). 344. Id. at 95, 98101. 345. 452 U.S. 692 (198 1). 346. Muehler, 544 U.S. at 98. 347. Summers, 452 U.S. at 705 & n.19. 348. Mue hler, 544 U.S. at 95, 9899. 349. Id. at 10304 (Kennedy, J., concurring). 350. Id. at 10001. 63

Section 1983 Litigation G. Malicious Prosecution Claims Under the Fourth Amendment The federal courts frequently have difficulty determining whether a 1983 complai nt states a proper malicious prosecution claim. In Albright v. Oliver,351 the Su preme Court held that an arrestees 1983 claimthat he was prosecuted without probab le causecould not be based on substantive due process. 352 The Court indicated th at such a claim could be based on the Fourth Amendment, but that Albright failed to establish the requisite standards for such claims because he failed to prese nt a Fourth Amendment claim to the Supreme Court; thus, the Court merely declare d what is not a malicious prosecution claim. 353 Prior to Albright, some lower c ourts used the common-law elements of a malicious prosecution tort to establish a constitutional violation of substantive due process.354 These common-law eleme nts are (1) institution of a criminal proceeding; (2) without probable cause; (3 ) with malice; and (4) termination in favor of the criminal defendant.355 In Alb right, however, the Court held that Albrights malicious prosecution claim was not actionable under the substantive due process component of the Fourteenth Amendm ent. The justices wrote six separate opinions reflecting a variety of views abou t substantive due process. The plurality opinion by Chief Justice Rehnquist, joi ned by Justices OConnor, Scalia, and Ginsburg, rejected substantive due process a s a base for a malicious prosecution claim and interpreted the record as not all eging a violation of procedural due process or of a Fourth Amendment right.356 C hief Justice Rehnquist noted that the lower courts had differing views as to wha t a plaintiff must allege to state a constitutional claim for malicious prosecuti on. 357 Some courts had held that the constitutional claim was identical to the c ommon-law claim; others had required the plaintiff to establish some type of egr e510 U.S. 266 (1994). Id. at 27174. Id. at 275. Id. at 270 n.4. Some courts had a lso required the challenged governmental conduct to be egregious. Id. 355. 1 Marti n A. Schwartz, Section 1983 Litigation: Claims and Defenses 3.18 (4th ed. 2004). 356. Albright, 510 U.S. at 26871, 275. 357. Id. at 270 n.4. 351. 352. 353. 354. 64

IV. Constitutional Rights Enforceable Under 1983 gious conduct.358 The Chief Justice stated that the Fourth Amendment applied to p retrial deprivations of liberty, but expressed no view as to whether the plaintif fs allegations stated a claim under the Fourth Amendment. 359 Justice Scalia, con curring, also rejected substantive due process as a basis for Albrights suit, rei terating his strong opposition to the Court using substantive due process when a plaintiff alleges unspecified liberty interests.360 Justice Ginsburg, in her conc urring opinion, found that the Fourth Amendment did apply to the facts of Albrig hts case, reasoning that the restraint imposed on Albright constituted a continuin g seizure within the meaning of the Fourth Amendment and suggesting that the basi s of his claim may have been that the arresting officer was responsible for effec tuating and maintaining the seizure. 361 Justice Kennedy, joined by Justice Thoma s, concurred in the judgment, asserting that a malicious prosecution claim is on e actually alleging a violation of procedural due process. 362 In contrast to Ju stice Scalia, Justice Kennedy affirmed that the Due Process Clause protects more than the liberty interests specified in the Bill of Rights; however, he stated that the due process requirements for criminal proceedings do not include a stand ard for the initiation of a criminal prosecution. 363 Justice Kennedy stated that , in some circumstances, the challenged governmental actions may state a violati on 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. 364 Justice Souter rejected the substantive due process claim for two reasons. First, he reasoned such a claim is available only when another amendment does not apply and the cla im is substantial. 365 Second, the types of injuries alleged were compensable unde r the Fourth 358. 359. 360. 361. 362. 363. 364. 365. Id. Id. at 27475. Id. at 275 (Scalia, J., concurring). Id. at 27679 (Ginsburg, J., concurring). Id. at 28586 (Kennedy, J., concurring). Id. at 283. Id. at 28586. Id . at 28687 (Souter, J., concurring). 65

Section 1983 Litigation Amendment, yet Albright had not relied on it.366 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. 367 In contrast to his colleagues, Justice Stevens, joined by Justice Blackmun, concluded that the plaintiff had stated a violation of substantive due process. 368 He found the initiation of criminal pr oceedings against Albright shocking and stated that the Bill of Rights specificall y protects against pretrial deprivations of liberty.369 Analogizing to the Grand Jury Clause of the Fifth Amendment, Justice Stevens reasoned that the liberty i nterest against arbitrary accusations is specified by the Grand Jury Clause of the Fifth Amendment.370 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. 371 Thus, although a majority of the C ourt in Albright held that malicious prosecution claims were not viable substant ive due process claims, there was no clear majority with respect to the constitu tional basis for these claims. If, however, Justice Souters opinion can be interp reted as establishing such claims under the Fourth Amendment, then a majority of the Court would likely find these claims actionable under the Fourth Amendment. Given the wide variety of views articulated by the justices in Albright, it is not surprising that the decision has spawned controversy and confusion in the low er courts. 372 The circuit courts disagree over (1) whether there are circumstanc es in which an alleged malicious prosecution may violate due process, and (2) wh en malicious prosecuId. at 289. Id. at 29091. Id. at 30206 (Stevens, J., dissentin g). Id. at 29396. Id. at 30203. Id. at 304. Kerr v. Lyford, 171 F.3d 330, 342 (5th Cir. 1999) (concurring opinion); see Wallace v. Kato, 127 S. Ct. 1091, 1096 n.2 (2007) (citing 1 Schwartz, supra note 355, 3.18[C], p. 3605, 3-629); Becker v. Kroll, 494 F.3d 904, 913 (10th Cir. 2007) (referring to murky waters of 1983-based malicious prosecution claims). 366. 367. 368. 369. 370. 371. 372. 66

IV. Constitutional Rights Enforceable Under 1983 tion violates the Fourth Amendment.373 It is clear, however, that referring to t he 1983 claim as a malicious prosecution clouds rather than clarifies the analys is because, when all is said and done, the plaintiff must establish a violation of a federally protected right. H. 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 Eigh th Amendment. The Eighth Amendment does not require comfortable prisons, but for bids inhumane conditions.374 The Supreme Court has defined the Eighth Amendment standard as containing both subjective and objective components.375 The subjecti ve component requires proof that prison officials acted with subjective delibera te indifference, 376 while the objective component requires proof that the depri vation was sufficiently serious. 377 Several Supreme Court decisions shed light on the meaning of these two components. In Estelle v. Gamble, 378 a case involving medical care of prisoners, the Supreme Court held that to state a claim under t he Eighth Amendment, a prisoner must prove officials were deliberately indiffere nt to the prisoners serious medical needs. 379 The Court determined that the Eighth Amendment was not violated by negligent medical care; thus, medical malpractice is not a constitutional violation simply because the plaintiff is a prisoner. 3 80 Fifteen years later, in Wilson v. Seiter,381 the Court interpreted Estelle to govern all claims challenging prison conditions.382 The majority narrowly defin ed both the subjective and objective components, holding that the subjective del iberate indifference component is a nec373. 374. 375. 376. 377. 378. 379. 380. 3 81. 382. 1 Schwartz, supra note 355, 3.18. Wilson v. Seiter, 501 U.S. 294, 298303 (1991). See, e.g., Farmer v. Brennan, 511 U.S. 825, 834 (1994). Id. Id. 429 U.S. 97 (197 6). Id. at 106. Id. at 10506. 501 U.S. 294 (1991). Id. at 30203. 67

Section 1983 Litigation essary element of all prison condition claims.383 Inhumane prison conditions alo ne do not constitute an Eighth Amendment violation. 384 The Court also held that the objective component requires proof that the deprivation was serious, that is, one addressing a specific, basic human need like food, warmth, or exercise. 385 No thing so amorphous as overall conditions can rise to the level of cruel and unusua l punishment when no specific deprivation of a single human need exists. 386 The Court left open whether inadequate funding was a defense to a finding of subject ive deliberate indifference. 387 The concurrence, however, noted that the courts of appeals have rejected such a cost defense. 388 Subsequently, the Supreme Court held, in Helling v. McKinney, 389 that a prisoner had stated an Eighth Amendmen t claim in challenging his confinement with a cellmate who smoked five packs of cigarettes a day.390 The Court held that this case was similar to Estelle becaus e the challenge concerned a prisoners health, and the Court explained that the Ei ghth Amendment applies to both claims involving current physical harm and those alleging conditions that may cause harm to prisoners in the future.391 In Farmer v. Brennan, 392 the Court defined the term deliberate indifference. 393 Recognizi ng 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 cont ext is subjective, not objective; it requires proof that the official actually k new of a substantial risk of serious harm and failed to act.394 The Court flatly rejected objective deliberate indifferencea showing that officials knew or 383. 384. 385. 386. 387. 388. 389. 390. 391. 392. 393. Id. at 30003. Id. at 30405. Id. Id. at 305. Id. at 30102. Id. at 311 & n.2 (White, J., concurring). 509 U.S. 25 (1993). Id. at 3235. Id. 511 U.S. 825 (1994). Id. at 829 (requiring a showing that the official was subjectively aware of the risk). 394. Id. at 83234. 68

IV. Constitutional Rights Enforceable Under 1983 should have known of the harm, regardless of their actual state of mindas the cor rect standard in inhumane conditions of confinement cases. 395 Because deliberate indifference describes a state of mind more blameworthy than negligence, 396 the C ourt favored subjective deliberate indifference as protection for the prison off icial who either is not aware of the facts giving rise to the risk of harm, or w ho fails to deduce the risk of serious harm. 397 The jury, however, can infer th at the official actually knew of the risk based on the same type of circumstanti al evidence that is used to prove objective deliberate indifference, i.e., a ris k of harm sufficiently apparent that the officer should have known of it.398 The Court said that this issue of fact can be demonstrated in the usual ways, includ ing inference from circumstantial evidence, . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the ri sk was obvious. 399 The subjective and objective components analyzed in condition sof-confinement claims under the Eighth Amendment are also part of the Courts ana lysis of prisoner excessive force claims under the Eighth Amendment. In Hudson v . McMillian, 400 the Court held that the subjective component required proof tha t the prison officials acted maliciously. 401 The Court added that proof of mali cious conduct automatically establishes the objective component, as long as ther e was more than a de minimus injury.402 The Court has thus recognized two differ ent subjective components under the Eighth Amendmentdeliberate indifference and m alice. 403 The Court derived these different states of mind by balancing a priso ners interest in bodily integrity against the need for institutional order. 404 M alice is the proper standard in prisoner excessive force cases, because in the p rison discipline or riot contexts exigencies exist; 395. 396. 397. 398. 399. 400. 401. 402. 403. 404. Id. at 83738. Id. at 835. Id. at 83738. Id. at 843 n.8. Id. at 842. 503 U.S. 1 (19 92). Id. at 67. Id. at 810. See id. at 57. Id. at 6. 69

Section 1983 Litigation however, in general prison condition litigation, where prison officials do not e ncounter these difficult circumstances, deliberate indifference is the proper st andard.405 I. First Amendment Claims Two frequently raised claims by government employees involve the First Amendment right to free speech. The first type of claim addresses adverse employment deci sions that were based on employees affiliations with political parties. The secon d type questions adverse employment decisions based on employees speech. 1. Polit ical Patronage Claims In four decisions, the Supreme Court has specified the cir cumstances under which public employers may make political patronage the disposi tive reason for adverse employment decisions. A plurality of the Court first hel d, in Elrod v. Burns, 406 that patronage dismissals generally violate the First Amendment and must be limited to policy-making positions. Four years later, in Bra nti v. Finkel, 407 the Supreme Court modified the Elrod rule, stating that the ul timate inquiry is not whether the label policymaker or confidential fits a particula r position, but whether the hiring authority can demonstrate that party affiliati on is an appropriate requirement for the effective performance of the public offi ce involved. 408 The Branti Court indicated that the plaintiff makes out a prima facie case by showing that he or she was discharged because of her political aff iliation. 409 In Rutan v. Republican Party of Illinois, 410 the Supreme Court he ld that the First Amendment prohibits political patronage as the sole basis for decisions concerning promotions, transfers, and recalls after layoffs. The Court e xplained that the governments right to take action against deficient performance effectively protects the governments interests when addressing the employment of staff members. However, when evaluating high-level emId. at 56. 427 U.S. 347, 3676 8 (1976). 445 U.S. 507 (1980). Id. at 518. Id. See Wilhelm v. City of Calumet Ci ty, 409 F. Supp. 2d 991, 999 (N.D. Ill. 2006) (citing Lohorn v. Michael, 913 F.2 d 327, 334 (9th Cir. 1998)). 410. 497 U.S. 62, 7475 (1990). 405. 406. 407. 408. 409. 70

IV. Constitutional Rights Enforceable Under 1983 ployees, the government may consider who will loyally implement its policies. 411 Although the Court recognized two classes of employeesstaff members and high-leve l employeesit nevertheless explained that performance is the central issue, with patronage being a permissible factor with respect only to the higher-level emplo yees. The Court, in OHare Truck Service, Inc. v. City of Northlake,412 held that government contractors have First Amendment protection against adverse action be cause of their political affiliation. The OHare Court rejected drawing a distinct ion between independent contractors and public employees, because contractors ar e not less dependent on income than are employees. 413 2. Public Employee Free S peech Retaliation Claims When public employees claim that their employers made a dverse employment decisions because of the employees speech, three issues are cen tral: (1) whether the speech was pursuant to the employees official duties; 414 ( 2) whether the speech was a matter of public concern; and, if the speech was not p ursuant to official duties and was a matter of public concern, (3) whether it un dermined an effective work environment.415 The First Amendment requires balancin g the need for employees to speak out on a matter of public concern against the need for an effective working relationship. 416 In determining what constitutes a matter of public concern, courts should consider the content, form and context o f the statement.417 An employees mere personal grievance is not a matter of publi c concern; the speech must have broader social or political interest.418 The emp loyee must speak on matters in which the public might be interested as distinct f rom wholly personal griev411. 412. 413. 414. 415. 416. 417. 418. Id. at 74. 518 U.S. 712, 720 (1996). Id. at 72223. Garcetti v. Ceballos, 126 S. C t. 1951 (2006). Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Id. at 568. Connick v. Meyers, 461 U.S. 138, 14748 (1983). Id. 71

Section 1983 Litigation ances. 419 Whether the speech was a matter of public concern is an issue of law f or the court.420 Employers need not determine what the employee actually said; 4 21 they must only reasonably investigate the nature of the employees speech. 422 If there was a substantial likelihood that the employee engaged in protected spe ech, a manager must investigate before making an adverse employment decision reg arding the employee. 423 Only procedures outside the range of what a reasonable manager would use will be found unreasonable. The reasonableness standard is obj ective; the subjective good faith of the employer is not controlling. 424 There are situations, however, where speech on a matter of public concern may neverthe less be unprotected under the First Amendment. A public employees speech is not p rotected, even if it was a matter of public concern, if it was part of the emplo yees official responsibilities. 425 Further, under the balancing test established in Pickering v. Board of Education, 426 the employees speech will not be protect ed if the employees speech interests are outweighed by the governments interest in efficient operations. Under Pickering balancing, government interests are likel y to prevail when the employment relationship requires confidentiality or person al loyalty, or where the speech threatens maintenance of employment discipline o r harmony.427 In evaluating the disruptive impact of the employees speech, courts are to show a wide degree of deference to the employers judgment when a close work4 19. Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 197 (7th Cir. 1996). 420. Co nnick, 461 U.S. at 147 n.7. When the public concern issue is close, a court may assume arguendo that the speech was of public concern and proceed directly to Pic kering balancing (see infra notes 42630 and accompanying text). Blackman v. New Yo rk City Transit Auth., 491 F.3d 95, 97, 99100 (2d Cir. 2007). 421. Waters v. Chur chill, 511 U.S. 661, 67879 (1994) (OConnor, J.) (plurality opinion joined by Rehnq uist, C.J., Souter & Ginsburg, JJ.). 422. Id. at 67779. 423. Id. at 678 (pluralit y opinion). 424. Id. 425. Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006). 42 6. 391 U.S. 563 (1968). 427. Id. at 570 n.3. However, [t]o trigger the Pickering balancing test, a public employee must, with specificity, demonstrate the speech at issue created workplace disharmony, impeded the plaintiffs performance or imp aired working relationships. Lindsey v. City of Orrick, 491 F.3d 892, 900 (8th Ci r. 2007). 72

IV. Constitutional Rights Enforceable Under 1983 ing relationship [is] essential to fulfilling public responsibilities. 428 If, ho wever, an employee does not have a confidential, policymaking, or public contact role, the level of disruptiveness would probably be minimal. 429 Pickering balancin g is an issue of law for the court.430 3. Prisoner Retaliation Claims Prisoners frequently allege that prison officials retaliated against them because the pris oner engaged in constitutionally protected activity, such as the filing of a jud icial proceeding or prison grievance. 431 To establish a First Amendment retalia tion claim, the prisoner must show that (1) he engaged in constitutionally prote cted speech or conduct, (2) the defendant took adverse action against the plaint iff, and (3) there was a causal connection between the protected activity and th e adverse action.432 The adverse action must be sufficient to deter a person of o rdinary firmness from exercising his constitutional rights.433 The causal connect ion requires the plaintiff to prove that the adverse action would not have been taken but for the prisoners constitutionally protected activity.434 An inmate alleg ing a First Amendment retaliation claim need not prove that he had an independen t liberty interest in the privilege he was denied. 435 Federal courts approach p risoner First Amendment retaliation claims with skepticism and particular care bec ause virtually any adverse action taken against a prisoner by a prison officialeve n those 428. Connick v. Meyers, 461 U.S. 138, 15152 (1983). 429. Rankin v. McPherson, 483 U.S. 378, 39091 (1987). 430. Jackson v. State of Ala., 405 F.3d 1276, 128586 (11t h Cir. 2005); Lewis v. Cowen, 165 F.3d 154, 164 (2d Cir. 1999). The court in Jackson, 405 F.3d at 1285, acknow ledged that Pickering balancing may generate subsidiary issues of fact. 431. A p risoners filing of a judicial proceeding or prison grievance is constitutionally protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Franco v . Kelly, 854 F.2d 584, 590 (2d Cir. 1988). 432. Rauser v. Horn, 241 F.3d 330, 33 3 (3d Cir. 2001); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001); Allah v. Se iverling, 229 F.3d 220, 225 (3d Cir. 2000). 433. Rauser, 241 F.3d at 333 (quotin g Allah, 229 F.3d at 22425). 434. McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 197 9). See Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006) ([A] defendant may successfully defend a [prisoners] retaliatory discipline claim by showing some ev idence that the inmate actually committed a rule violation. . . . The fact that t he conduct violation was later expunged does not mean that there was not some ev idence for its imposition.). 435. Rauser, 241 F.3d at 333. 73

Section 1983 Litigation otherwise not rising to the level of a constitutional violationcan be characteriz ed as a constitutionally proscribed retaliatory act. 436 In other words, prisoner retaliation claims are prone to abuse since prisoners can claim retaliation for every decision they dislike. 437 On the other hand, the prisoner is not necessari ly required to produce direct evidence to establish retaliatory motive. [W]here . . . circumstantial evidence of a retaliatory motive is sufficiently compelling, direct evidence is not invariably required. 438 [C]ircumstantial evidence may be . . . sufficient to raise a genuine issue of material fact [regarding the prison officials retaliatory motives] precluding the grant of summary judgment.439 4. Re taliatory Prosecution In Hartman v. Moore, 440 the Supreme Court held that a pla intiff who asserts a First Amendment claim of retaliatory prosecution against a law enforcement officer who sought to bring about the prosecution must plead and demonstrate an absence of probable cause. In other words, the absence of probab le cause is an essential ingredient of a retaliatory prosecution claim. The Cour t reasoned that when there is probable cause for the prosecution, the causal rel ationship between the law enforcement officers conduct and the prosecutors decisio n to prosecute is too uncertain to allow the claim for relief to proceed. 441 436. Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001). 437. Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). 438. Bennett v. Goord, 343 F.3d 133, 139 (2d Cir. 20 03). 439. Gayle v. Gonyea, 313 F.3d 677, 684 (2d Cir. 2002). 440. 547 U.S. 250 ( 2006) (Bivens action). 441. A claim against the prosecutor based on her decision to prosecute would be barred by prosecutorial immunity. Hartman, 547 U.S. at 26 162. See also infra Part XIV.C. For post-Hartman decisions, see Williams v. City of Carl Junction, 480 F.3d 871, 876 (8th Cir. 2007) (Hartman applicable even wher e intervening actions by a prosecutor are not present) (following Barnes v. Wrigh t, 449 F.3d 709 (6th Cir. 2006)); Skoog v. County of Clackamas, 469 F.3d 1221 (9 th Cir. 2006) (search and seizure of property in retaliation for exercise of Fir st Amendment rights states proper claim even if search and seizure supported by probable cause; court distinguished Hartman as based on complexity of causation issue in retaliatory prosecution cases); Swiecicki v. Delgado, 463 F.3d 489 (6th Cir. 2006) (not citing Hartman and holding that arrest in retaliation for verba l protest to police action would violate First Amendment). 74

V. Enforcement of Federal Statutes Under 1983 V. Enforcement of Federal Statutes Under 1983 Some federal statutory rights may be enforced under 42 U.S.C. 1983. In Maine v. Thiboutot,442 the Supreme Court rejected the argument that only federal statutes dealing with equal rights or civil rights are enforceable under 1983. The Court hel d that 1983s reference to laws of the United States means what it says, and, theref ore, all federal statutes are enforceable under 1983 against defendants who acte d under color of state law. However, as discussed below, subsequent Supreme Cour t decisions substantially cut back the decision in Thiboutot by holding that not all federal statutes are enforceable under 1983.443 These decisions hold that a federal statute will not be enforceable under 1983 if it either (1) does not un ambiguously create a federal right in the plaintiffs or (2) contains enforcement remedies intended by Congress to be the exclusive means of enforcement. A. Enforcement of Federal Rights For a federal statute to be enforceable under 1983, a plaintiff must assert the v iolation of a federal right, not merely a violation of federal law. 444 The Supre me Court has identified three factors to determine whether a particular federal statutory provision creates a federal right: First, Congress must have intended that the provision in question benefit the pl aintiff.445 Second, the plaintiff must demonstrate that the right assertedly pro tected by the statute is not so vague and amorphous that its enforcement would str ain judicial competence.446 442. 448 U.S. 1 (1980). 443. See, e.g., City of Rancho Palos Verdes v. Abrams, 5 44 U.S. 113, 12021 (2005); Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002); Suter v. Artist M., 503 U.S. 347 , 363 (1992); Middlesex County Sewerage Auth. v. Natl Sea Clammers Assn, 453 U.S. 1, 1011 (1981). 444. Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Gold en State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1989)). Accord Gonz aga Univ. v. Doe, 536 U.S. 273, 282 (2002). 445. Blessing, 520 U.S. at 340 (citi ng Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 430 (198 7)). 446. Id. at 34041 (quoting Wright, 479 U.S. at 430). 75

Section 1983 Litigation 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.447 The pertinent issue is not whether the federal statutory scheme creates enforcea ble rights, but whether the specific federal statutory provision at issue create s enforceable rights.448 In Pennhurst State School & Hospital v. Halderman, 449 the Supreme Court held that 42 U.S.C. 6009, the bill of rights provision of the De velopmental Disabilities Assistance and Bill of Rights Act, did not create enfor ceable rights in favor of the developmentally disabled. 450 The Court identified the inquiry as whether the provision imposed an obligation on the States to spen d state money to fund certain rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms. 451 Noting that if Co ngress intends to impose a condition on the grant of federal moneys, it must do so unambiguously[,] 452 the Court concluded that the provisions of [6009] were int ended to be hortatory, not mandatory. 453 Congress intended to encourage, rather t han mandate, the provision of better services to the developmentally disabled. 45 4 Accordingly, 6009 did not create substantive rights in favor of the mentally d isabled to appropriate treatment in the least restrictive environment, and thus 6009 was not enforceable through 1983.455 In the next several decisions, the Supreme Court found that federal statutes created enforceable rights. In Golden State T ransit Corp. v. City of Los Angeles, 456 the Court held that Golden State could sue for damages under 1983 to remedy the violation of its right under the Na447. Id. at 341 (citing Wilder v. Va. Hosp. Assn, 496 U.S. 498, 500 (1990); Pennh urst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)). 448. Blessing, 520 U.S . at 342. 449. 451 U.S. 1 (1981). 450. Id. at 18 (citing former 6010, which is n ow 6009). 451. Id. 452. Id. at 17. 453. Id. at 23. 454. Id. at 20. 455. Id. at 1 011. 456. 493 U.S. 103 (1989). 76

V. Enforcement of Federal Statutes Under 1983 tional Labor Relations Act457 not to have the renewal of its taxi license condit ioned on the settlement of a pending labor dispute. 458 In Wright v. City of Roa noke Redevelopment & Housing Authority, 459 the Court determined that the Brooke Amendment to the U.S. Housing Act and implementing regulations created enforcea ble rights. The defendant was a public housing authority subject to the Brooke A mendments ceiling for rents charged to low-income people living in public housing projects. 460 The Department of Housing and Urban Development (HUD) had, in its i mplementing regulations, consistently considered rent to include a reasonable amoun t for the use of utilities. 461 Public housing tenants brought suit under 1983 al leging that the Roanoke Housing Authority had imposed a surcharge for excess utilit y consumption that should have been part of petitioners rent and deprived them of their statutory rights to pay only the prescribed maximum portion of their inco me as rent. 462 The Court determined that the Brooke Amendment and implementing H UD regulations gave low-income tenants specific and definable rights to a reason able utility allowance that were enforceable under 1983, and that the regulation s were fully authorized by the statute.463 The Court, in Wilder v. Virginia Hosp ital Assn, 464 also found an enforceable right in the Boren Amendment to the Medi caid Act,465 which required a participating state to reimburse health care provi ders at reasonable rates. 466 The Court concluded that health care providers were clearly intended beneficiaries of the Boren Amendment,467 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 thi s obligation was en457. 458. 459. 460. 461. 462. 463. 464. 465. 466. 467. See 29 U.S.C. 151169 (1988 & Supp. V). Golden State, 493 U.S. at 11213. 479 U.S. 41 8 (1987). Id. at 420 (citations omitted). Id. Id. at 421. Id. at 430. 496 U.S. 4 98 (1990). See 42 U.S.C. 13961396v (1998 & Supp. V). 42 U.S.C. 1396a(a)(13)(A) (19 98 & Supp. V). Wilder, 496 U.S. at 510. 77

Section 1983 Litigation forceable under 1983.468 Rejecting the argument that the obligation imposed by t he Boren Amendment was too vague and amorphous to be capable of judicial enforceme nt,469 the Court noted that the statute and the Secretarys regulations set out fac tors which a State must consider in adopting its rates, including the objective be nchmark of an efficiently and economically operated facility providing care in com pliance with federal and state standards while at the same time ensuring reasonab le access to eligible participants. 470 The decisions in Golden State, Wright, and Wilder represent a liberal approach to enforcement of federal statutes under 19 83. In contrast, the Court in Suter v. Artist M. 471 took a restrictive approach . The Court in Suter did not find an enforceable right in a provision of the Ado ption Assistance and Child Welfare Act of 1980.472 The Act provides for federal reimbursement of certain expenses incurred by a state in administering foster ca re and adoption services, conditioned upon the states submission of a plan for ap proval by the Secretary of Health and Human Services. 473 To be approved, the pl an must satisfy certain requirements, including one that mandates that the state make reasonable efforts to keep children in their homes. 474 The issue before the Court in Suter was whether Congress, in enacting the Adoption Act, unambiguously confer[ed] upon the child beneficiaries of the Act a right to enforce the requi rement that the State make reasonable efforts to prevent a child from being remove d from his home, and once removed to reunify the child with his family. 475 The C ourt held that it did not. The Court concluded that the only unambiguous require ment imposed by 42 U.S.C. 671(a) was that the state submit a plan to be approved by the Secretary. 476 The Court in Suter emphasized that in Wilder it had relied in part on the fact that the statute and regulations set forth in some detail t he 468. 469. 470. 471. 472. 473. 474. 475. 476.

Id. at 512. Id. at 519. Id. 503 U.S. 347 (1992). Id. at 350. See 42 U.S.C. 620628, 670679a (1998 & Supp. V). 42 U.S.C. 620628, 670679a (1998 & Supp. V). 42 U.S.C. 67 (a)(15) (1998). Suter, 503 U.S. at 357. Id. 78

V. Enforcement of Federal Statutes Under 1983 factors to be considered in determining the methods for calculating rates, 477 wh ereas the Child Welfare Act contained [n]o further statutory guidance . . . as to how reasonable efforts are to be measured. 478 In Blessing v. Freestone, 479 a una nimous Court rejected an attempt by custodial parents to enforce, through a 1983 action, a general, undifferentiated right to substantial compliance by state offi cials with a federally funded child-support enforcement program that operates un der Title IV-D of the Social Security Act.480 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 approa ch and for painting with too broad a brush in determining whether Title IV-D create s enforceable rights.481 The Supreme Court remanded the case and instructed the plaintiffs to articulate with particularity the rights they were seeking to enfo rce. Blessing forces plaintiffs to break their claims down into manageable analyt ic bites so that the court can ascertain whether each separate claim 477. Id. at 359. 478. Id. at 360. Congress responded to Suter by passing an amen dment 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 n ot to be deemed unenforceable because of its inclusion in a section of this chap ter requiring a State plan or specifying the required contents of a State plan. This section is not intended to limit or expand the grounds for determining the availability of private actions to enforce State plan requirements other than by overturning any such ground applied in Suter v. Artist M. [cite omitted], but n ot applied in prior Supreme Court decisions respecting such enforceability; prov ided, however, that this section is not intended to alter the holding in Suter v . Artist M. [cite omitted] that section 471(a)(15) [42 U.S.C. 671(a)(15)] of thi s title 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 w ith respect to the reasonable efforts provision remains good law, the amendment ove rrules the general theory in Suter that the only private right of action availab le 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 b y its intended beneficiaries. Jeanine B. v. Thompson, 877 F. Supp. 1268, 1283 (E. D. Wis. 1995). See also Harris v. James, 127 F.3d 993, 100203 (11th Cir. 1997). 4 79. 520 U.S. 329 (1997). 480. Title IV-D of the Social Security Act, as added, 8 8 Stat. 2351 and as amended, 42 U.S.C.A. 651669b (Supp. 1997). 481. Blessing, 520 U.S. at 34243. 79

Section 1983 Litigation satisfies the various criteria [the Supreme Court has] set forth for determining whether a federal statute creates rights. 482 In Gonzaga University v. Doe,483 t he Supreme Court held unenforceable under 1983 a provision of the Family Educati onal Rights and Privacy Act (FERPA) directing that federal funds shall not be ma de available to an educational institution that has a policy of permitting the re lease of educational records . . . of students without the written consent of th eir parents. 484 The Court acknowledged that its decisions governing enforcement of federal statutes under 1983 contained inconsistent language and created confus ion in the lower courts. 485 It found that the FERPA provision was not enforceabl e under 1983 because it failed to create in clear and unambiguous terms a federal right in the plaintiffs.486 The Court pointed out, inter alia, that FERPA has an aggregate approach directed to the U.S. Secretary of Education to deny federal funds to educational institutions that have a policy or practice of disclosing e ducation records. 487 B. Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose 1983 Remedy If the plaintiff demonstrates that a federal statute creates an enforceable righ t, there is a rebuttable presumption that the right is enforceable under 1983.488 The defendant has the burden of rebutting the presumption by showing that Congre ss intended to preclude enforcement under 1983.489 Congress may preclude enforce ment under 1983 either expressly or impliedly by creating a remedial scheme that is so Id. at 342. 536 U.S. 273 (2002). 20 U.S.C. 1232g(b)(1) (1994). Gonzaga Univ., 53 6 U.S. at 278, 283. Id. at 290. Id. Blessing, 520 U.S. at 341. Accord City of Ra ncho Palos Verdes v. Abrams, 544 U.S. 113, 120 (2005). 489. See Smith v. Robinso n, 468 U.S. 992 (1984). See also City of Rancho Palos Verdes, 544 U.S. at 120. 482. 483. 484. 485. 486. 487. 488. 80

V. Enforcement of Federal Statutes Under 1983 comprehensive as to demonstrate a congressional intent to preclude enforcement u nder 1983.490 In Middlesex County Sewerage Authority v. National Sea Clammers As sn, 491 an association claimed that the County Sewerage Authority discharged and dumped pollutants, violating the Federal Water Pollution Control Act492 and the Marine Protection, Research, and Sanctuaries Act of 1972.493 In addition, the Co unty Sewerage Authority allegedly violated the terms of its permits.494 Although the issue before the Court was whether [the Association] may raise either of the se claims in a private suit for injunctive and monetary relief, where such a sui t is not expressly authorized by either of these Acts, 495 the Court addressed, s ua sponte, the enforceability of these Acts pursuant to 1983. Noting that both s tatutes contained unusually elaborate enforcement provisions[,]496 the Court held that [w]hen the remedial devices provided in a particular Act are sufficiently co mprehensive, they may suffice to demonstrate congressional intent to preclude th e remedy of suits under 1983.497 Similarly, in Smith v. Robinson, the Court concl uded that the carefully tailored administrative and judicial mechanism 498 embodie d in the Education of the Handicapped Act (EHA)499 reflected Congressional inten t that the EHA be the exclusive avenue through which a plaintiff may assert [an e qual protection claim to a publicly financed special education]. 500 The dissent disagreed: The natural resolution of the conflict between the EHA, on the one hand, and . . . [section] 1983, on the other, is to require a plaintiff with a claim covered by the EHA to pursue relief through the administrative channels 490. Middlesex County Sewerage Auth. v. Natl Sea Clammers Assn, 453 U.S. 1, 20

(1981). 453 U.S. 1 (1981). See 33 U.S.C. 12511387 (1988 & Supp. V). See id. 1401144 . See Middlesex County Sewerage Auth., 453 U.S. at 12. Id. Id. at 13. Id. at 20. Smith v. Robinson, 468 U.S. 992, 1009 (1984). See 20 U.S.C. 14001485 (1988 & Supp . V). In 1991, the Act was renamed Individuals With Disabilities Education Act ( IDEA), 20 U.S.C. 14001491 (1994). 500. Smith, 468 U.S. at 1009. 491. 492. 493. 494. 495. 496. 497. 498. 499. 81

Section 1983 Litigation established by that Act before seeking redress in the courts under . . . [sectio n] 1983.501 The dissents position became the law when, in response to Smith, Congress amended the EHA to provide explicitly that parallel constitutional claims were not pree mpted by the EHA and could be raised in conjunction with claims based on it.502 A congressional remedy that is very specific and circumscribed may also imply a congressional intent to preclude enforcement under 1983. In City of Rancho Palos Verdes v. Abrams, 503 the Supreme Court held that specific provisions of the fe deral Telecommunications Act (TCA) were not enforceable under 1983 because the T CA has its own highly specific circumscribed remedy. This carefully circumscribe d remedy included a short thirty-day limitations period, the requirement that a court hear and decide a TCA claim on an expedited basis, and limited remedies, perh aps not including compensatory damages and not authorizing awards of attorneys fee s and costs.504 The Court found that this highly specific remedy indicated a con gressional intent to foreclose rather than supplement the 1983 remedy for a TCA violation. C. Current Supreme Court Approach The foregoing analysis shows a clear trend in recent Supreme Court decisions of substantially tightening the standards for enforcing federal statutes under 1983 .505 Gonzaga University v. Doe506 is the most significant of these decisions. Th e Court in Gonzaga instructed the lower courts that to find that Congress intend ed to create an enforceable federal statutory right, Congress must do so in clear and unambiguous termsno less and no more than what is required for Congress to c reate new rights under an implied private right of action.507 The Court Id. at 1024 (Brennan, J., joined by Marshall & Stevens, JJ., dissenting). See 20 U.S.C. 1415(f) (1988 & Supp. V). 544 U.S. 113, 12021 (2005). Id. at 114. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005); Gonzaga Univ. v. Doe, 536 U .S. 273 (2002); Blessing v. Freestone, 520 U.S. 329 (1997); Suter v. Artist M., 503 U.S. 347 (1992). 506. 536 U.S. 273, 290 (2002). 507. Id. at 290. 501. 502. 503. 504. 505. 82

V. Enforcement of Federal Statutes Under 1983 also strongly indicated that federal statutes enacted under the Spending Clause are unlikely to create private enforceable rights.508 It pointed out that only t wice has it found Spending Clause legislation enforceable under 1983.509 D. Enforcement of Federal Regulations Under 1983 The lower courts are in disagreement as to when a federal regulation is enforcea ble under 1983.510 Most recent decisions on the issue hold that a federal regulat ion alone may not create a right enforceable through section 1983 not already fo und in the enforcing statute. 511 Under this view, regulations give rise to a righ t of action [under 1983] only insofar as they construe a personal right that a s tatute creates. 512 This position finds support in the Supreme Courts statement in Alexander v. Sandoval513 that language in a regulation may invoke a private righ t of action that Congress through statutory text created, but it may not create a right that Congress has not. Although the Court, in Wright v. City of Roanoke R edevelopment & Housing Authority,514 found a federal regulation enforceable unde r 1983, the regulation was promulgated pursuant to a federal statute that itself created rights enforceable under 1983. 508. Id. at 281. 509. See Wilder v. Va. Hosp. Assn, 496 U.S. 498 (1990); Wright v . City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987). 510. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 4.04[A] (4th ed. 2004). 511. S. Ca mden Citizens in Action v. N.J. Dept of Envtl. Prot., 274 F.3d 771, 790 (3d Cir. 2001), cert. denied, 123 S. Ct. 2621 (2002). See also Johnson v. City of Detroit , 446 F.3d 614, 62829 (6th Cir. 2006); Harris v. James, 127 F.3d 993 (11th Cir. 1 997). 512. Three Rivers Ctr. for Indep. Living v. Hous. Auth. of Pittsburgh, 382 F.3d 412, 424 (3d Cir. 2004). 513. 532 U.S. 275, 291 (2001). 514. 479 U.S. 418 (1987). 83

Section 1983 Litigation VI. Section 1983 Defendants Section 1983 authorizes assertion of a claim for relief against a person who acted under color of state law. A suable 1983 person encompasses state and local offici als sued in their personal capacities, municipal entities, and municipal officia ls sued in an official capacity, but not states and state entities. In Will v. M ichigan Department of State Police,515 the Supreme Court held that a suable perso n under 1983 does not include a state, a state agency, or a state official sued i n her official capacity for damages. However, the Court ruled that a state offic ial sued in an official capacity is a 1983 person when sued for prospective relief . 516 In Hafer v. Melo, 517 the Supreme Court held that a state official sued fo r damages in her personal capacity is a 1983 person, even though the claim for r elief arose out of the officials official responsibilities. In Monell v. Departme nt of Social Services, 518 the Supreme Court held that municipalities and munici pal officials sued in an official capacity are suable 1983 persons.519 Since a c laim against a municipal official in her official capacity is tantamount to a su it against the municipal entity,520 when claims are asserted against both the mu nicipal entity and a municipal official in her official capacity, federal courts typically dismiss the official capacity claim as redundant to the municipal-entit y claim. 521 Courts sometimes have to decide whether an official is a state as o pposed to municipal policy maker in a particular subject area or on a particular issue. This is an important issue because municipal entities are suable 1983 pe rsons while state entities are not. In addition, Eleventh Amendment sovereign im munity protects state entities from fed491 U.S. 58 (1989). Id. at 71 n.10. 502 U .S. 21, 27 (1991). 436 U.S. 658, 690 (1978). The District of Columbia is a munici pality for the purpose of 1983. People for Ethical Treatment of Animals v. Gitten s, 396 F.3d 416, 425 (D.C. Cir. 2005). 520. See infra Part IX. 521. See, e.g., A nemone v. Metro. Transp. Auth., 410 F. Supp. 2d 255, 264 n.2 (S.D.N.Y. 2006); Wi lhelm v. City of Calumet City, 409 F. Supp. 2d 991, 994 n.1 (N.D. Ill. 2006); Ro binson v. District of Columbia, 403 F. Supp. 2d 39, 49 (D.D.C. 2005). 515. 516. 517. 518. 519. 84

VI. Section 1983 Defendants eral court liability but provides no protection for municipal entities. 522 In M cMillian v. Monroe County, 523 the Supreme Court held that whether an official i s a state or municipal policy maker is dependent on an analysis of state law.524 T he Court recognized that a particular official (e.g., the county sheriff) may be considered a state official in one state and a municipal official in another st ate. 525 Furthermore, an official may be considered a state official for the pur pose of one function and a municipal official for the purpose of another functio n. 526 For example, district attorneys are normally considered state officials w hen prosecuting crimes, but are considered municipal officials when carrying out their administrative duties, such as training staff.527 Municipal departments, offices, and commissioners are normally not considered suable entities. 528 This is a matter of form rather than substance. It means simply that instead of nami ng, for example, the police department as a party defendant, the plaintiff must na me as defendant the municipality (city, town, or village) of which the departmen t is a part. See infra Part XIII. 520 U.S. 781, 786 (1997). See infra Part X. McMillian, 520 U.S. at 795. Id. at 78586. Id. See Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) ([S]heriffs departments and police departments are not usually considered legal entities subject to suit.). 522. 523. 524. 525. 526. 527. 528. 85

Section 1983 Litigation VII. Color of State Law and State Action An essential ingredient of a 1983 claim is that the defendant acted under color of state law.529 Furthermore, the Fourteenth Amendment imposes limitations only on state action; it does not reach the conduct of private parties, no matter how discriminatory or harmful. 530 Neither 1983 nor the Fourteenth Amendment reache s the conduct of federal officials 531 or of purely private persons. [P]ersons vi ctimized by the tortious conduct of private parties must ordinarily explore othe r avenues of redress. 532 The Supreme Court and the lower federal courts have gen erally treated color of state law and state action as meaning the same thing. 53 3 A finding that the defendant was engaged in state action means that the defend ant acted under color of state law.534 If the defendant was not engaged in state action, the Fourteenth Amendment is not implicated, and there is no reason for a court to determine whether the defendant acted under color of state law. A. State and Local Officials The clearest case of state action (and action under color of state law) is a pub lic official who carried out his official responsibilities in accordance with st ate law. Polk County v. Dodson 535 is the only Supreme Court case that has found that a state or local official who carried out his official responsibilities wa s not engaged in state action. The Court 529. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978). 530. Brentwood Acad. v. Te nn. Secondary Sch. Athletic Assn, 531 U.S. 288, 295 (2001); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 4950 (1999) ( 1983 is no t implicated by merely private conduct, no matter how discriminatory or wrongful); Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974). 531. 1 Schwartz, supra note 510, 5.07. See District of Columbia v. Carter, 409 U.S. 418, 42425 (1973) (ac tions of the Federal Government and its officers are at least facially exempt fr om [ 1983s] proscriptions); McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) (a section 1983 claim ordinarily will not lie against a federal actor). 532. Roch e v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996). 533. Lug ar v. Edmonson Oil Co., 457 U.S. 922, 929 (1982). However, color of state law wo uld not constitute state action if color of state law were interpreted to mean m erely acting with the knowledge of and pursuant to [a] statute. Id. at 935 n.18 (q uoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 162 n.23 (1970)). 534. West v. Atkins, 487 U.S. 42, 4950 (1988); Lugar, 457 U.S. at 935. 535. 454 U.S. 312 (198 1). 86

VII. Color of State Law and State Action held that a public defenders representation of an indigent criminal defendant was not under color of state law.536 The Court reasoned that although the public de fender is employed and paid by the state, when representing a criminal defendant he acts not for the state, but as an adversary of the state, and not under colo r of state law, but pursuant to the attorneyclient relationship with undivided lo yalty to his client.537 In West v. Atkins, 538 the Supreme Court held that a pri vate physician who provides medical services to prisoners pursuant to a contract with the state acts under color of state law. Unlike the public defender in Pol k County, the prison physician is not an adversary of the state. Although the ph ysicians exercise of professional judgment may seem to suggest professional judgm ent and independent autonomy, the prison physician exercises professional judgme nt on behalf of the state and in furtherance of the states obligation to provide medical care to inmates. The decision in West is based primarily on the fact tha t the prison physician performs a governmental function and carries out the stat es constitutional obligation of providing medical care to prison inmates.539 Stat e and local officials who abuse their official power act under color of state la w. The governing principle is that [m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken under color of state law. 540 Courts often must determ ine whether an official abused governmental power or acted as a private individu al, e.g., as an irate spouse. The issue often arises with respect to off-duty po lice officers. To determine whether an off-duty police officer acted under color of state 536. See West v. Atkins, 487 U.S. 42, 50 (1988) (discussing Polk County). 537. H owever, as the Court in Polk County acknowledged, a public defender may be sued under 1983 for carrying out her administrative functions. See Powers v. Ham ilton County Public Defender Commn, 501 F.3d 592, 612 (6th Cir. 2007). Further, a public defender may be sued under 1983 if she conspired with a state actor, eve n if the state actor is immune from 1983 liability. Tower v. Glover, 467 U.S. 91 4, 91920 (1984). 538. 487 U.S. 42 (1988). 539. See Am. Mfrs. Mut. Ins. Co. v. Sul livan, 526 U.S. 40, 5558 (1999) (discussing West). 540. Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313 U.S. 299, 32526 (1946)). 87

Section 1983 Litigation law, courts consider such factors as whether an ordinance deemed the officer on duty for twenty-four hours; the officer identified herself as a police officer; the officer had or showed her service revolver or other police department weapon ; the officer flashed her badge; the officer conducted a search or made an arres t; the officer intervened in an existing dispute pursuant to police department r egulations (as opposed to instigating a dispute).541 B. State Action Tests Courts frequently must determine whether a private partys involvement with state or local government justifies the conclusion that the party was engaged in state action for the purpose of the Fourteenth Amendment. The state action doctrine is designed to preserve a private sphere free of constitutional restraints, as well as to ensure that constitutional standards are invoked when it can be said that the state is responsible for the specific conduct of which the plaintiff complai ns.542 The Supreme Court state action decisional law has advanced the following s tate action tests: symbiotic relationship; public function; close or joint nexus ; joint participation; and pervasive entwinement. The fact that these tests can be culled from the Supreme Court state action decisional law does not mean that all Supreme Court state action holdings have been based on one of the above doct rines. At times, the Court has found state action based on ad hoc evaluations of a variety of connections between the private party and the state.543 The Court 541. See, e.g., Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 199 5); Pitchell v. Callahan, 13 F.3d 545, 548 (2d Cir. 1994); United States v. Tarp ley, 945 F.2d 806, 809 (5th Cir. 1991), cert. denied, 504 U.S. 917 (1992); Bonsi gnore v. City of New York, 683 F.2d 635, 63839 (2d Cir. 1982); Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980); Stengel v. Belcher, 522 F.2d 438, 44041 (6th Cir . 1975), cert. dismissed, 429 U.S. 118 (1976). 542. Brentwood Acad. v. Tenn. Sec ondary Sch. Athletic Assn, 531 U.S. 288, 295 (2001) (citations, quotation marks, and brackets omitted). 543. See Georgia v. McCollum, 505 U.S. 42 (1992) (crimina l defense attorneys exercise of race-based preemptory challenge); Edmonson v. Lee sville Concrete Co., 500 U.S. 614 (1991) (private civil litigants exercise of ra ce-based preemptory challenge); West v. Atkins, 88

VII. Color of State Law and State Action has acknowledged that its state action decisions have not been a model of consiste ncy. 544 The nature of the government involvement with the private party can give rise to disputed questions of fact. Nevertheless, the courts decide a large perc entage of state action issues as a matter of law. 1. Symbiotic Relationship The Supreme Courts decision in Burton v. Wilmington Parking Authority545 is often cit ed to support the principle that state action is present when the state and priv ate party have a symbiotic relationship. 546 Although Burton has not been overru led, the Court read Burton very narrowly as supporting a finding of state action only when the state profited from the private wrong.547 Furthermore, the Court has denigrated Burton as one of its early state action decisions containing vague joi nt participation language. 548 2. Public Function Supreme Court decisions state t hat there is state action when a private party carries out a function that has b een historically and traditionally the exclusive prerogative of the state.549 This is a demanding standard that 1983 plaintiffs find difficult to satisfy. While m any functions may be historically and traditionally governmental functions, few are exclusively governmental functions. The Supreme Court has found state action u nder the public function doctrine in cases involving political primaries550 and has stated that eminent domain is an example of an exclusively governmental powe r. 551 The Courts decision in West v. At487 U.S. 42 (1988) (private physicians pro vision of medical care to inmates). See also Brentwood Acad., 531 U.S. 288. 544. Lebron v. Natl R.R. Passenger Corp., 513 U.S. 374, 378 (1995) (quoting Edmonson, 500 U.S. at 632 (OConnor, J., dissenting)). 545. 365 U.S. 715 (1961). 546. See M oose Lodge v. Irvis, 407 U.S. 163, 175 (1972) (describing holding in Burton). 54 7. Rendell-Baker v. Kohn, 457 U.S. 830, 831 (1982); Blum v. Yaretsky, 457 U.S. 9 91, 1011 (1982). 548. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999 ). 549. Flagg Bros. v. Brooks, 436 U.S. 149, 15758 (1978); Jackson v. Metro. Edis on Co., 419 U.S. 345, 352 (1974). 550. Terry v. Adams, 345 U.S. 461, 469 (1953). 551. See discussion in Jackson, 419 U.S. at 353. 89

Section 1983 Litigation kins, 552 that a private physicians provision of medical care to prison inmates c onstitutes state action, was based in part on the fact that the physician carrie s out a governmental function of providing medical care to inmates. 553 The Supr eme Court has held that the following functions do not satisfy the public functi on doctrine because they are not exclusively governmental functions: 1. insurance companies suspension of workers compensation benefits pending utilization committe e review;554 2. education of maladjusted children;555 3. nursing home care; 556 4. coordination of amateur athletics; 557 5. dispute resolution through forced s ale of goods by a warehouse company to enforce a possessory lien; 558 6. operati on of a shopping mall; 559 and 7. provision of utility services. 560 3. Close Ne xus Test Under the sufficiently close nexus test, state action is present if the s tate has ordered the private conduct, or exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. 561 The federal courts have held that the following are not sufficient to satisfy this test: 487 U.S. 42 (1988). See Am. Mfrs., 526 U.S. at 5558 (discussing West). Id. at 55. Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). Blum v. Yaretsky, 457 U.S. 991 , 993 (1982). S.F. Arts & Athletics v. U.S. Olympic Comm., 483 U.S. 522, 544 (19 87). See also NCAA v. Tarkanian, 488 U.S. 179, 197 n.18 (1988). 558. Flagg Bros. v. Brooks, 436 U.S. 149, 15960 (1978). 559. Hudgens v. NLRB, 424 U.S. 507, 519 ( 1976). 560. Jackson v. Metro. Edison Co., 419 U.S. 345, 35253 (1974). 561. Blum, 457 U.S. at 1004. 552. 553. 554. 555. 556. 557. 90

VII. Color of State Law and State Action 1. state authorization of private conduct;562 2. a private partys use of a state furnished dispute resolution mechanism;563 3. a private partys request for police assistance; 564 4. a private partys attempt to influence governmental action;565 5. state licensing and regulation, even if pervasive; 566 and 6. state financia l assistance, even if extensive. 567 The Supreme Court has found no state action even when several of these indicia of government involvement coalesced in the s ame case. The Court has held that private parties (such as a utility company, a private school, and a nursing home) that were extensively regulated by the state , received substantial governmental assistance, carried out an important societa l function, and acted pursuant to state authority, were not engaged in state act ion. 568 4. Joint Participation A private party who jointly participates in the alleged constitutional wrongdoing with a state or local official is engaged in s tate action.569 Joint participation requires (1) some type of conspiracy, agreem ent, or concerted action between the state and private party; (2) a showing that the state and private party shared common goals; and (3) conduct pursuant to th e conspiracy, agreement, or concerted action that violated the plaintiffs federal ly protected rights. In Dennis v. Sparks, 570 the Supreme Court held that privat e parties who corruptly conspire with a 562. Flagg Bros., 436 U.S. at 164; Jackson, 419 U.S. at 354. 563. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). 564. See, e.g., Ginsberg v. Heale y Car & Truck Leasing, 189 F.3d 268, 27172 (2d Cir. 1999). 565. NCAA v. Tarkanian, 488 U.S. 179, 19394 (1988). 566. Rendell-Baker v. Kohn, 4 57 U.S. 830, 841 (1982); Blum, 457 U.S. at 1008; Jackson, 419 U.S. at 350. 567. Rendell-Baker, 457 U.S. at 840 (no state action even thoug h educational institution received almost all of its funding from state). See al so Jackson, 419 U.S. at 35152 (state grant of monopoly power). 568. See Rendell-B aker, 457 U.S. at 84041 (school); Blum, 457 U.S. at 1008 (nursing home); Jackson, 419 U.S. at 35054 (utility company). 569. See Lugar v. Edmonson Oil Co., 457 U.S . 922, 941 (1982); Dennis v. Sparks, 449 U.S. 24, 2728 (1980); Adickes v. S.H. Kr ess & Co., 398 U.S. 144, 152 (1970). 570. 449 U.S. 24 (1980). 91

Section 1983 Litigation judge act under color of state law, even though the judge is protected by judici al immunity.571 In National Collegiate Athletic Assn v. Tarkanian, 572 the Suprem e Court held that there was no joint action between the NCAA, a private entity, and the state university because they had diametrically opposite goals. The NCAAs goal was that the universitys head basketball coach be suspended while the unive rsity sought to retain its prominent head coach. Although a private partys mere u se of a state statute, alone, does not constitute state action,573 when combined with the presence of state officials it can signify state action. 574 In Lugar v. Edmondson Oil Co., 575 the Supreme Court held that a creditor who used a stat e prejudgment attachment statute acted under color of state law because, in atta ching the debtors property, with help from the court clerk and sheriff, the credi tor used state power. The assistance from state officials made the creditor a jo int participant in state action.576 571. A courts issuance of a judgment is clearly state action. Shelley v. Kraemer, 334 U.S. 1, 1420 (1948). However, merely resorting to the courts and being on the winning side of a lawsuit does not make a party co-conspirator or joint actor w ith the judge. Sparks, 449 U.S. at 28. 572. 488 U.S. 179 (1988). 573. Flagg Bros. v. Brooks, 436 U.S. 149, 16466 (1978). 574. Lugar, 457 U.S. at 93942. 575. 457 U. S. 922 (1982). 576. Id. at 937. The Court explained that in this context the all eged deprivation must be caused by the exercise of some right or privilege create d by the State or by a rule of conduct imposed by the state or by a person for w hom the state is responsible. Id. A private party who misused or abused the state process does not engage in state action. Id. at 941. In a footnote, the Supreme Court in Lugar stated that its analysis was limited to prejudgment seizures of property. Id. at 939 n.21. The lower federal courts have generally been reluctan t to extend the relatively low bar of Lugars so-called joint action test outside the context of challenged prejudgment attachment or garnishment proceedings. Revis v . Meldrum, 489 F.3d 273, 289 (6th Cir. 2007). The joint action issue also arises in cases involving a private partys repossession of property in which a law enfo rcement officer plays some role. The Eighth Circuit stated that there is no state action if the officer merely keeps the peace, but there is state action if the officer affirmatively intervenes to aid the repossessor enough that the reposses sion would not have occurred without the officers help. Moore v. City of Poplar Bl uff, 404 F.3d 1043 (8th Cir. 2006). For an insightful analysis of the issue, see Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999) (case law does not provide bright line but a spectrum of police involvement in the repossession), cert. denied , 530 U.S. 1262 (2000). 92

VII. Color of State Law and State Action 5. Pervasive Entwinement In Brentwood Academy v. Tennessee Secondary School Athl etic Assn, 577 the Supreme Court held that a statewide interscholastic athletic a ssociation was engaged in state action because the state was pervasively entwined with the association. The Court relied heavily on the fact that because almost a ll of the states public schools were members of the association, there was a large ly overlapping identity between the association and the states public schools. The Court also relied on the facts that the associations governing board was dominat ed by public school officials, most of the associations revenue was derived from governmental funds, and the association carried out a function that otherwise wo uld have to be carried out by the state board of education. Unfortunately, the C ourt failed to provide a definition of pervasive entwinement, thereby leaving it t o the lower courts to determine on a case-by-case basis. In shoplifting cases, the prevailing view is the stores detention of a suspected shoplifter is state action if the store and police have a prearranged plan pursuan t to which the police agree to arrest anyone identified by the store as a shopli fter. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 5.1 6[A] (4th ed. 2004). 577. 531 U.S. 288 (2001). 93

Section 1983 Litigation VIII. Causation Section 1983 by its terms authorizes the imposition of liability only on a defen dant who subjects, or causes to be subjected, any citizen . . . or other person . . . to the deprivation of any rights guaranteed by federal law. The Supreme Cour t has read this language as imposing a proximate cause requirement on 1983 claim s. 578 The great weight of judicial authority equates 1983s causation requirement with common-law proximate cause. 579 This reading of 1983 is consistent with th e fundamental principle that 1983 should be interpreted against the background of tort liability that makes a [person] responsible for the natural consequences o f his [or her] actions.580 A 1983 defendant may be held liable for those consequenc es attributable to reasonably foreseeable intervening forces, including acts of third parties. 581 On the other hand, a 1983 defendant may not be held liable when an intervening force was not reasonably foreseeable or when the link between th e defendants conduct and the plaintiffs injuries is too remote, tenuous, or specul ative. 582 In the context of criminal law enforcement, courts have differed as to the circumstances under which acts of subsequent participants in the legal syst em are su578. Martinez v. California, 444 U.S. 277, 28485 (1980). 579. Murray v. Earle, 40 5 F.3d 278, 290 (5th Cir. 2005) (proximate cause under 1983 is evaluated under common-law standards); McKinley v. City of Mansfield, 404 F.3d 4 18, 438 (6th Cir. 2005) (causation in the constitutional sense is no different th an causation in the common law sense). 580. Monroe v. Pape, 365 U.S. 167, 187 (19 61). Accord Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986). 581. Warner v. Orang e County Dept of Prob., 115 F.3d 1068, 1071 (2d Cir. 1996) (quoting Gutierrez-Rod riguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989)). Where multiple forces are actively operating, . . . plaintiffs may demonstrate that each defendant is a co ncurrent cause by showing that his or her conduct was a substantial factor in bri nging [the injury] about. In a case of concurrent causation, the burden of proof shifts to the defendants in that a tortfeasor who cannot prove the extent to whic h the harm resulted from other concurrent causes is liable for the whole harm bec ause multiple tortfeasors are jointly and severally liable. Lippoldt v. Cole, 468 F.3d 1204, 1219 (10th Cir. 2006) (quoting Northington v. Marin, 102 F.3d 1564, 156869 (10th Cir. 1996)). 582. See, e.g., Martinez, 444 U.S. at 28485; Wray v. Cit y of N.Y., 490 F.3d 189, 193 (2d Cir. 2007); Murray, 405 F.3d at 291; Townes v. City of New York, 176 F.3d 138, 14647 (2d Cir.), cert. denied, 528 U.S. 964 (1999 ). 94

VIII. Causation

perseding causes that avoid liability of an initial actor. 583 Causation in 1983 actions is usually a question of fact for the jury.584 Causation frequently play s a significant role in 1983 municipal liability claims based on inadequate trai ning, supervision, or hiring practices. 585 For these municipal liability claims , Supreme Court decisional law states that the municipal policy or practice must be the moving force for, closely related to, a direct causal link to, or affirmativ linked to the deprivation of the plaintiffs federally protected rights.586 It is unclear whether these standards are alternative ways of articulating common-law proximate cause or are intended to impose a more stringent causation requirement .587 583. Zahrey v. Coffey, 221 F.3d 342, 351 (2d Cir. 2000). See 1A Martin A. Schwar tz, Section 1983 Litigation: Claims and Defenses 6.03 (4th ed. 2005). 584. See, e.g., Young v. City of Providence, 404 F.3d 4, 23 (1st Cir. 2005) (questions of causation are generally best left to the jury) (citing Wortley v. Camplin, 333 F.3 d 284, 295 (1st Cir. 2003)); Rivas v. City of Passaic, 365 F.3d 181, 193 (3d Cir . 2004). 585. Bd. of County Commrs v. Brown, 520 U.S. 397, 40204 (1997); City of C anton v. Harris, 489 U.S. 378, 38586 (1989). See infra Part X. 586. Bd. of County Commrs, 520 U.S. at 40204; City of Canton, 489 U.S. at 38586. 587. The Court has s tated that for municipal liability claims based on inadequate training or defici ent hiring, the fault and causation standards are stringent. See infra Part X. 95

Section 1983 Litigation IX. Capacity of Claim: Individual Versus Official Capacity A claim against a state or municipal official in her official capacity is treate d as a claim against the entity itself. 588 In Kentucky v. Graham,589 the Suprem e Court stated that an official capacity claim is simply another way of pleading a n action against an entity of which an officer is an agent. As long as the govern ment entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the en tity. 590 Therefore, when a 1983 complaint asserts a claim against a municipal en tity and municipal official in her official capacity, federal district courts ro utinely dismiss the official capacity claim as duplicative or redundant.591 By c ontrast, a personal- (or individual-) capacity claim seeks monetary recovery pay able out of the responsible officials personal finances.592 Therefore, a personal capacity claim is not redundant or duplicative of a claim against a governmenta l entity. In Hafer v. Melo, 593 the Supreme Court outlined the distinctions betw een personal capacity and official capacity suits: 1. Because an official capaci ty claim against an official is tantamount to a claim against a governmental ent ity, and because there is no respondeat superior liability under 1983, in offici al capacity suits the plaintiff must show that enforcement of the 588. Kentucky v. Graham, 473 U.S. 159, 166 (1985); Brandon v. Holt, 469 U.S. 464 , 47172 (1985); Monell v. Dept of Soc. Servs., 436 U.S. 658, 690 n.55 (1978); Abus aid v. Hillsborough County Bd. of County Commrs, 405 F.3d 1298, 1302 n.3 (11th Ci r. 2005) (claim against officer in official capacity is another way of pleading a n action against an entity of which an officer is an agent). 589. 473 U.S. 159 (1 985) (citations omitted). 590. Id. at 16566 (quoting Monell, 436 U.S. at 690 n.55 (1978)). See, e.g., Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006) (cla im against North Carolina district attorney in his official capacity was conside red claim against state for purpose of Eleventh Amendment). 591. See, e.g., Cott on v. District of Columbia, 421 F. Supp. 2d 83, 86 (D.D.C. 2006); Baines v. Masi ello, 288 F. Supp. 2d 376, 384 (W.D.N.Y. 2003); McCachren v. Blacklick Valley Sc h. Dist., 217 F. Supp. 2d 594, 599 (W.D. Pa. 2002). 592. Hafer v. Melo, 502 U.S. 21, 25 (1991). 593. Id. 96

IX. Capacity of Claim: Individual Versus Official Capacity entitys policy or custom caused the violation of the plaintiffs federally protecte d right. 2. In official capacity suits the defendant may assert only those immun ities the entity possesses, such as the states Eleventh Amendment immunity and mu nicipalities immunity from punitive damages. 3. Liability may be imposed against defendants in personal capacity suits even if the violation of the plaintiffs fed erally protected right was not attributable to the enforcement of a governmental policy or practice. [T]o establish personal liability in a 1983 action, it is en ough to show that the official, acting under color of state law, caused the depr ivation of a federal right. 594 4. Personal capacity defendants may assert common -law immunity defensesthat is, either an absolute or qualified immunity.595 The 1 983 complaint should clearly specify the capacity (or capacities) in which the d efendant is sued. Unfortunately, many 1983 complaints fail to do so. When the ca pacity of claim is ambiguous, most courts look to the course of proceedings to det ermine the issue. 596 For example, when a municipal official is sued under 1983, assertion of a claim for punitive damages is a strong indicator that the claim was asserted against the official in his personal capacity, because municipaliti es are immune from punitive damages under 1983. By the same token, when the defe ndant official asserts an absolute or qualified immunity as a defense, this stro ngly indicates that the claim was asserted against the official personally becau se these defenses are available only against personal capacity claims. 594. Id. (quoting Kentucky v. Graham, 473 U.S. 159 (1985)). See supra Part VIII. 595. See infra Part XIV (absolute immunities) and Part XV (qualified immunity). 596. See 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 6.0 5 (4th ed. 2004). See, e.g., Moore v. City of Harriman, 272 F.3d 769, 72273 (6th Ci r. 2001); Biggs v. Meadows, 66 F.3d 56, 5960 (4th Cir. 1995) (adopting majority v iew of looking to substance of the plaintiffs claim, the relief sought, and the co urse of proceedings to determine the nature of a 1983 suit when plaintiff fails to allege capacity). Some courts, however, have held that when the capacity in wh ich the defendant is sued is ambiguous, there is a presumption against personal capacity claims. See, e.g., Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). 97

Section 1983 Litigation X. Municipal Liability In its landmark decision in Monell v. Department of Social Services, 597 the Sup reme Court held that municipal entities are subject to 1983 liability, but not o n the basis of respondeat superior. 598 Therefore, a municipality may not be hel d liable under 1983 solely because it hired an employee who became a constitutio nal wrongdoer. Monell established that a municipality is subject to liability un der 1983 only when the violation of the plaintiffs federally protected right can be attributable to the enforcement of a municipal policy, practice, or decision of a final municipal policy maker. 599 [I]t is when execution of a governments pol icy or custom, whether made by its lawmakers or by those whose edicts or acts ma y fairly be said to represent official policy, inflicts the injury that the gove rnment as an entity is responsible under 1983.600 The Supreme Court, in Owen v. C ity of Independence, 601 held that a municipality may not assert the good faith o f its officers or agents as a defense to liability under 1983. [U]nlike various go vernment officials, municipalities do not enjoy immunity from suiteither absolute or qualified under 1983.602 Although compensatory damages and 597. 436 U.S. 658 (1978). 598. State law cannot authorize respondeat superior un der 1983. Coon v. Town of Springfield, 404 F.3d 683, 687 (2d Cir. 2005) (Just as states cannot extinguish m unicipal liability under 1983 via state law, they cannot enlarge it either.). The rule against respondeat superior extends to private party state actors. Rojas v . Alexanders Dept Store, Inc., 924 F.2d 406, 40809 (2d Cir. 1990) (Although Monell d ealt with municipal employers, its rationale has been extended to private busine sses.); Mejia v. City of New York, 228 F. Supp. 2d 234, 243 (E.D.N.Y. 2002) (neith er a municipality nor a private corporation can be held vicariously liable under 1983 for the actions of its employees). 599. A suit against a municipal official in his or her official capacity is considered a suit against the municipality i tself. Brandon v. Holt, 469 U.S. 464, 47172 (1985). Accord Kentucky v. Graham, 47 3 U.S. 159, 166 (1985). See supra Part IX. 600. Monell, 436 U.S. at 694. The mun icipal policy or practice requisite is often very difficult to satisfy. See Wimb erly v. City of Clovis, 375 F. Supp. 2d 1120, 1127 (D.N.M. 2004) ([T]he Monell st andard is very difficult for any plaintiff to reach. Even plaintiffs that procee d to trial against individual defendants often are unable to keep the municipali ty in the case.). 601. 445 U.S. 622, 638 (1980). 602. Leatherman v. Tarrant Count y Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993). See, e.g ., Burge v. Parish of St. Tammany, 187 F.3d 452, 46667 (5th Cir. 1999) (absolute prosecutorial immunity not available in official capacity suit); Goldberg v. 98

X. Municipal Liability equitable relief may be awarded against a municipality under 1983,603 the Court, in City of Newport v. Fact Concerts, Inc., 604 held that municipalities are imm une from punitive damages. The Court found that because an award of punitive dam ages against a municipality would be payable from taxpayer funds, the award woul d not further the deterrent and punishment goals of punitive damages. These goal s are best accomplished by awards of punitive damages against officials in their personal capacity. As discussed infra Part XXI, punitive damages may be awarded under 1983 against a state or municipal official in her individual capacity. Un der Supreme Court decisional law, municipal liability may be based on (1) an exp ress municipal policy, such as an ordinance, regulation, or policy statement; (2 ) a widespread practice that, although not authorized by written law or express m unicipal policy, is so permanent and well settled as to constitute a custom or us age with the force of law; 605 or (3) the decision of a person with final policymak ing authority. 606 The following types of municipal policies and practices may gi ve rise to 1983 liability: 1. deliberately indifferent training;607 2. deliberat ely indifferent supervision or discipline; 608 3. deliberately indifferent hirin g; 609 and Town of Rocky Hill, 973 F.2d 70, 72 (2d Cir. 1992) (municipality may not assert legislative immunity). Further, state law immunities may not be asserted by muni cipalities sued under 1983. Howlett v. Rose, 496 U.S. 356, 37576 (1990) (state co urt 1983 action). See also Alden v. Maine, 527 U.S. 706, 740 (1994) (reaffirming Howlett). 603. Monell, 436 U.S. at 690. 604. 453 U.S. 247 (1981). 605. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 16768 (1970)). 606. Praprotnik, 485 U.S. at 123. See also P embaur v. City of Cincinnati, 475 U.S. 469, 48183 (1986). 607. See City of Canton v. Harris, 489 U.S. 378, 380 (1989). 608. See 2 Martin A. Schwartz, Section 198 3 Litigation: Claims and Defenses 7.18 (4th ed. 2007). 609. Bd. of County Commrs v. Brown, 520 U.S. 397, 41011 (1997). 99

Section 1983 Litigation 4. deliberately indifferent failure to adopt policies necessary to prevent const itutional violations. 610 There must be a sufficient causal connection between t he enforcement of the municipal policy or practice and the violation of the plai ntiffs federally protected right. A municipality may be held liable under 1983 on ly when the enforcement of the municipal policy or practice was the moving force b ehind the violation of the plaintiffs federally protected right.611 The courts ha ve also described this causal connection as a direct causal link, closely related, a nd affirmatively linked. 612 In Collins v. City of Harker Heights, 613 the Supreme Court stressed that the issue of whether there is a basis for imposing municipa l liability for the violation of the plaintiffs federally protected rights is an issue separate and distinct from the issue of whether there was a violation of t he plaintiffs federal rights. The Court stated that a proper analysis requires [th e separation of] two different issues when a 1983 claim is asserted against a mu nicipality: (1) whether plaintiffs harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation. 614 A. Officially Promulgated Policy Usually the easiest cases concerning 1983 municipal liability arise out of claim s contesting the enforcement of an officially promulgated municipal policy. Ther e was such a policy in the Monell case. 615 610. See, e.g., Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) ([T]he deci sion not to take any action to alleviate the problem of detecting missed arraign ments constitutes a policy for purposes of 1983 municipal liability.). 611. Bd. o f County Commrs, 520 U.S. at 400; City of Canton v. Harris, 489 U.S. 378, 389 (19 89). 612. Canton, 489 U.S. at 385 (there must be a direct causal link between a m unicipal policy or custom and the alleged constitutional deprivation). 613. 503 U .S. 115 (1992). 614. Id. at 120. 615. See also City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 252 (1981) (vote of city council to cancel license for rock concert was official decision for Monell purposes); Owen v. City of Independenc e, 445 U.S. 622, 633 (1980) (personnel decision made by city council constitutes official city policy). Fact Concerts and Owen demonstrate that decisions offici ally adopted by the government body itself need not have general or recurring ap plication in order to constitute official policy. 100

X. Municipal Liability The challenged policy statement, ordinance, regulation, or decision must have be en adopted or promulgated by the local entity. A local governments mere enforceme nt of state law, as opposed to express incorporation or adoption of state law in to local regulations or codes, has been found insufficient to establish Monell l iability.616 In Cooper v. Dillon, 617 the Eleventh Circuit held that the city co uld be held liable under 1983 for its enforcement of an unconstitutional state s tatute because the city, by ordinance, had adopted the state law as its own. Fur thermore, enforcement of the law was by the city police commissioner, an officia l with policy-making authority. B. Municipal Policy Makers 1. Authority and Liability Supreme Court decisional law holds that municipal lia bility may be based on a single decision by a municipal official who has final p olicymaking authority.618 Whether an official has final policy-making authority is an issue of law to be determined by the court by reference to state and local law.619 The mere fact that a municipal official has discretionary authority is not a sufficient basis for imposing municipal liability.620 It is not always eas y to determine whether a municipal offi616. 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 a nd implementation of administrative enforcement procedure, going beyond terms of state court injunction, leading to arrest of all anti-abortion protesters found within buffer zone, including persons not named in injunction, amounted to cogn izable policy choice); Garner v. Memphis Police Dept, 8 F.3d 358, 364 (6th Cir. 1 993) (rejecting defendants argument that they had no choice but to follow state fl eeing felon policy, holding that [d]efendants decision to authorize use of deadly f orce to apprehend nondangerous fleeing burglary suspects was . . . a deliberate choice from among various alternatives), cert. denied, 510 U.S. 1177 (1994). See also Vives v. City of N.Y., 524 F.3d 346 (2d Cir. 2008) (carefully analyzing the issue). 617. 403 F.3d 1208, 1222 (11th Cir. 2005). 618. City of St. Louis v. Pr aprotnik, 485 U.S. 112, 123 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). 619. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) ; Praprotnik, 485 U.S. at 123. 620. Pembaur, 475 U.S. at 48182 (The fact that a pa rticular officialeven a policymaking officialhas discretion in the exercise of par ticular functions does not, without more, give rise to municipal liability based on an exercise of the discretion.). See Killinger 101

Section 1983 Litigation cial has policy-making authority or discretionary authority to enforce policy. 6 21 In Pembaur v. City of Cincinnati, 622 a majority of the Court held that a sin gle decision by an official with policy-making authority in a given area could c onstitute official policy and be attributed to the government itself under certa in circumstances. 623 The county prosecutor ordered local law enforcement office rs to go in and get two witnesses who were believed to be inside the medical clini c of their employer, a doctor who had been indicted for fraud concerning governm ent payments for medical care provided to welfare recipients. The officers had c apiases for the arrest of the witnesses, but no search warrant for the premises of the clinic. Pursuant to the county prosecutors order, they broke down the door and searched the clinic. 624 In holding that the county could be held liable fo r the county prosecutors order that resulted in the violation of the plaintiffs co nstitutional rights, the Court described the appropriate circumstances in which a single decision by policy makers may give rise to municipal liability. For examp le, the Court noted cases in which it had held that a single decision by a proper ly constituted legislative body . . . constitute[d] an act of official governmen t policy. 625 But Monells language also encompasses other officials whose acts or e dicts could constitute official policy. 626 Thus, where a governments authorized d ecision maker adopts a particular course of action, the government may be v. Johnson, 389 F.3d 765, 771 (7th Cir. 2004) (mere authority to implement pre-ex isting rules is not authority to set policy). 621. See Williams v. Butler, 863 F. 2d 1398, 1403 (8th Cir. 1988) (en banc) (a very fine line exists between delegati ng final policymaking authority to an official . . . and entrusting discretionar y authority to that official). 622. 475 U.S. 469 (1986). 623. Justice White wrote separately to make clear his position (concurred in by Justice OConnor) that a d ecision of a policy-making official could not result in municipal liability if t hat decision were contrary to controlling federal, state, or local law. Pembaur, 475 U.S. at 48587 (White, J., concurring). 624. Id. at 472, 473. 625. Id. at 480 (citing Owen v. City of Independence, 445 U.S. 622 (1980) (City Council passed r esolution firing plaintiff without a pretermination hearing) and City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (City Council cancelled license permi tting concert because of dispute over content of performance)). 626. Pembaur, 475 U.S. at 480 (citing Monell, 436 U.S. at 694). 102

X. Municipal Liability responsible for that policy whether that action is to be taken only once or to be taken repeatedly. 627 Justice William J. Brennan, Jr., writing for a plurality i n Pembaur, concluded that [m]unicipal liability attaches only where the decisionm aker possesses final authority to establish municipal policy with respect to the action ordered. 628 Whether an official possesses policymaking authority with re spect to particular matters will be determined by state law. Policy-making autho rity may be bestowed by legislative enactment, or it may be delegated by an offi cial possessing policymaking authority under state law.629 In City of St. Louis v. Praprotnik,630 the Court again attempted to determin[e] when isolated decision s by municipal officials or employees may expose the municipality itself to liab ility under [section] 1983.631 Justice OConnor, writing for a plurality, reinforce d the principle articulated in Pembaur that state law will be used to determine policy-making status. 632 Furthermore, identifying a policy-making official is a question of law for the court to decide by reference to state law, not one of f act to be submitted to a jury. 633 The plurality also un627. Id. at 481. 628. Id . (Part II-B of Courts opinion: Brennan, J., joined by White, Marshall & Blackmun, JJ.). 629. Id. at 483. Whether municipal entity delegated final policy -making authority to a particular official may present an issue of fact. Bouman v. Block, 940 F.2d 1211, 1231 (9th Cir.), cert. denied, 502 U.S. 1005 (1991). Se e also Kujawski v. Bd. of Commrs, 183 F.3d 734, 739 (7th Cir. 1999) ([T]here remai ns a genuine issue of fact as to whether the Board had, as a matter of custom, d elegated final policymaking authority to [the chief probation officer] with resp ect to [personnel decisions of] community corrections employees.). But see Gros v . City of Grand Prairie, 181 F.3d 613, 617 (5th Cir. 1999) ([T]he district court should have determined whether any such delegation had occurred as a matter of s tate law.). 630. 485 U.S. 112 (1988). 631. Id. at 114. The Court reversed a decis ion by the Eighth Circuit Court of Appeals, which had found the city liable for the transfer and layoff of a city architect in violation of his First Amendment rights. The Eighth Circuit had allowed the plaintiff to attribute to the city ad verse personnel decisions made by the plaintiffs supervisors where such decisions were considered final because they were not subject to de novo review by higherra nking officials. City of St. Louis v. Praprotnik, 798 F.2d 1168, 117375 (8th Cir. 1986). 632. Praprotnik, 485 U.S. at 124. 633. Id. In Praprotnik, the relevant l aw was found in the St. Louis City charter, which gave policy-making authority i n matters of personnel to the mayor, alderman, and Civil Service Commission. Id. at 126. See also Dotson v. Chester, 937 F.2d 920, 928 (4th Cir. 1991) 103

Section 1983 Litigation derscored the importance of finality to the concept of policy making, and reiterat ed the distinction set out in Pembaur between authority to make final policy and authority to make discretionary decisions.634 When an officials discretionary dec isions are constrained by policies not of that officials making, those policies, rather than the subordinates departures from them, are the act of the municipalit y. 635 Finally, the plurality noted that for a subordinates decision to be attribu table to the government entity, the authorized policymakers [must] approve [the] decision and the basis for it. . . . Simply going along with discretionary decis ions made by ones subordinates . . . is not a delegation to them of authority to make policy. 636 In Jett v. Dallas Independent School District,637 the Supreme Co urt analyzed the functions of the judge and jury when municipal liability is sou ght to be premised upon the single decision of a policy maker. The Court stated: As with other questions of state law relevant to the application of federal law, the identification of those officials whose decisions represent the official po licy of the local government unit is itself a legal question to be resolved by t he trial judge before the case is submitted to the jury. Reviewing the relevant legal materials, including state and local positive law, as well as custom or usag e having the force of law . . . , the trial judge (court examines state law and county code to find sheriff final policy maker as to operation of county jail). 634. See Killinger v. Johnson, 389 F.3d 765, 771 ( 7th Cir. 2004) (mere authority to implement pre-existing rules is not authority t o set policy); Quinn v. Monroe County, 330 F.3d 1320, 1326 (11th Cir. 2003) (a mu nicipal decisionmaker is one who had the power to make official decisions and thus may be held individually liable, while a municipal policymaker is one who takes acti ons that may cause [the governmental entity] to be held liable for a custom or p olicy). Accord Kamensky v. Dean, 148 F. Appx 878, 879 80 (11th Cir. 2005). 635. Pra protnik, 485 U.S. at 127. See, e.g., Auriemma v. Rice, 957 F.2d 397, 400 (7th Ci r. 1992) (Liability for unauthorized acts is personal; to hold the municipality l iable . . . the agents action must implement rather than frustrate the governments policy.). 636. Praprotnik, 485 U.S. at 12830. See, e.g., Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (concluding that mere inaction on part of polic y maker does not amount to ratification under Pembaur and Praprotnik). In Christie v . Iopa, 176 F.3d 1231 (9th Cir.), cert. denied, 528 U.S. 928 (1999), the court r ecognized that ratification is ordinarily a question for the jury, and that rati fication requires showing approval by a policy maker, not a mere refusal to over rule a subordinates action. 637. 491 U.S. 701 (1989). 104

X. Municipal Liability must identify those officials of governmental bodies who speak with final policy -making authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue. O nce those officials who have the power to make official policy on a particular i ssue have been identified, it is for the jury to determine whether their decisio ns have caused the deprivation of rights.638 Although mentioned merely in passing without elaboration, the Courts reference to custom or usage having the force of law is significant. In Praprotnik, Justice OCo nnors plurality opinion and Justice Brennans concurring opinion recognized that mu nicipal liability may be based on a practice that is at variance with a formally adopted announced policy. 639 The existence of a custom or practice normally pr esents an issue of fact for the jury.640 In Mandel v. Doe,641 the Eleventh Circu it stated that [t]he court should examine not only the relevant positive law, inc luding ordinances, rules and regulations, but also the relevant customs and prac tices having the force of law. 642 There is, then, a potential tension in Jett be tween the Courts holding that the identification of final policy makers is a ques tion of law for the court, and its statement that the court should review the leg al materials, including a custom or usage having the force of law. Nevertheless, when the issue of whether an official is a final policy maker has been raised, the c ourts have usually given little attention to Jetts reference to custom and usage an d treated the final policy-making authority as a matter of state law for the cou rt. Because local ordinances, charters, regulations, and manuals may not be read ily accessible, counsel should provide copies of the pertinent provisions to the court. In Wulf v. City of Wichita,643 the issue was 638. Id. at 737. 639. Praprotnik, 485 U.S. at 13031 (plurality opinion), 145 n.7 (Brennan, J., concurring). 640. Worsham v. City of Pasadena, 881 F.2d 1336, 1344 (5th Cir. 1989) (Goldberg, J., concurring in part and dissenting in part). 641. 888 F.2d 783, 793 (11th Ci r. 1989). 642. See also Gros v. City of Grand Prairie, 181 F.3d 613, 616 (5th Ci r. 1999) (district court should have considered state and local law as well as ev idence of the Citys customs and usages in determining which City officials or bod ies had final policymaking authority over the policies at issue in this case). 64 3. 883 F.2d 842 (10th Cir. 1989). 105

Section 1983 Litigation whether the city manager or the chief of police had policy-making authority over employment decisions. The Tenth Circuit observed that the record lacked official copies of the City Charter or the relevant ordinances or procedure manuals for the City of Wichita. 644 Nevertheless, the Tenth Circuit was able to resolve the policy-making issue because the record contained testimony of the city manager a bout his duties, and the court was provided pertinent quotations from city ordin ances. From these sources, the court found that only the city manager had final decision-making authority. The court was apparently willing to accept these alte rnative sources only because the parties had briefed the appeal prior to the Sup reme Courts determination in Praprotnik that the federal court should look to sta te law to decide where policymaking authority resides. 645 In this post-Praprotn ik era, however, counsel should submit copies of the pertinent local law provisi ons to the court. As noted, federal courts are not likely to have easy access to these materials and should not have to expend considerable effort tracking them down. Further, because the contents of these legal documents are in issue, the original document rule would normally render it improper for a court to rely on alternative materials, such as the testimony and quotations considered in Wulf. 646 644. Id. at 868. 645. Id. at 868 n.34. 646. Fed. R. Evid. Article X. If the pert inent local legislative materials are made available to the federal court, the court may take judicial notice of their contents. Fed. R. Evid. 201(d). In Melton v. City of Oklahoma City, 879 F.2d 706, 724 (10 th Cir. 1989), cert. denied, 502 U.S. 906 (1991), the Tenth Circuit took judicia l notice of the fact that the city charter lodged final policy-making authority over the citys personnel matters in the city manager. Although [t]here seem[ed] to be two conflicting lines of cases in [the Tenth Circuit] on the question of jud icial notice of city ordinances, the Melton court concluded that the better rule al lows for the taking of judicial notice. Melton, 879 F.2d at 724 n.25. As the cou rt recognized, the Federal Rules of Evidence authorize the taking of judicial no tice of a fact not subject to reasonable dispute because it is capable of accurat e and ready determination by resort to sources whose accuracy cannot reasonably be determined. Fed. R. Evid. 201(b). See also discussion of judicial note in Gett y Petroleum Marketing v. Capital Terminal Co., 391 F.3d 312 (1st Cir. 2004). 106

X. Municipal Liability 2. State Versus Municipal Policy Maker Federal courts frequently have to determi ne whether an official is a state or municipal policy maker. In McMillian v. Mon roe County, 647 the Supreme Court held that, like the identification of municipa l policy makers, this issue, too, is determined by reference to state law. The C ourt acknowledged that an official may be a state policy maker for one purpose a nd a municipal policy maker for another purpose. For example, courts commonly ho ld that district attorneys are state policy makers when prosecuting criminal cas es, but are municipal policy makers for purposes of carrying out administrative and supervisory functions, such as training of assistant district attorneys.648 In McMillian, a five-member majority of the Supreme Court held that a county she riff in Alabama is not a final policy maker for the county in the area of law en forcement.649 It noted that the question is not whether Sheriff Tate acts for Alabama or Monroe County in so me categorical, all or nothing manner. Our cases on the liability of local governm ents under 1983 instruct us to ask whether governmental officials are final poli cy makers for the local government in a particular area, or on a particular issu e. . . . 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 l aw enforcement capacity.650 The Court emphasized the role that state law plays in a courts determination of w hether an official has final policy-making authority for a local government enti ty. As the Court noted, [t]his is not to say that state law can answer the question for us by, for examp le, simply labeling as a state official an official who clearly makes county pol icy. But our understanding of the actual function of a govern647. 520 U.S. 781, 78687 (1997). 648. See, e.g., Carter v. Philadelphia, 181 F.3d 339, 351 (3d Cir.), cert. denied, 528 U.S. 1005 (1999); Walker v. City of New York, 974 F.2d 293, 301 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993); Baez v. Hennessy, 853 F.2d 73, 7677 (2d Cir. 1988), cert. denied, 488 U.S. 1014 (1989). 649. McMillian, 520 U.S. at 78586. 650. Id. at 785. 107

Section 1983 Litigation mental official, in a particular area, will necessarily be dependent on the defi nition of the officials functions under relevant state law.651 Relying heavily on the Alabama constitution and the Alabama supreme courts interp retation of the state constitution that sheriffs are state officers, the U.S. Su preme Court found that Alabama sheriffs, when executing their law enforcement du ties, represent the state of Alabama, not their counties. Even the presence of t he following factors was not enough to persuade the majority of the Court otherw ise: (1) the sheriffs salary is paid out of the county treasury; (2) the county p rovides the sheriff with equipment, including cruisers; (3) the sheriffs jurisdic tion is limited to the borders of his county; and (4) the sheriff is elected loc ally by the voters in his county.652 C. Custom or Practice In Monell v. Department of Social Services, 653 the Supreme Court recognized tha t 1983 municipal liability may be based on a municipal custom or usage having the force of law, even though it has not received formal approval through the bodys of ficial decision-making channels. More recently the Supreme Court acknowledged tha t [a]n act performed pursuant to a custom that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law. 654 The critical issue is whether there was a particular custom or practice that was so well settled and widespread that the policymaking officials of the munici pality can be said to 651. Id. at 786. 652. Id. at 79193. In dissent, however, Justice Ginsburg wrote: A sheriff locally elected, paid, and equipped, who autonomously sets and impleme nts law enforcement policies operative within the geographic confines of a count y, is ordinarily just what he seems to be: a county official. . . . The Court do es not appear to question that an Alabama sheriff may still be a county policyma ker for some purposes, such as hiring the countys 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 Courts opinion does not cal l into question the numerous Court of Appeals decisions, some of them decades ol d, ranking sheriffs as county, not state, policymakers. Id. at 80405 (Ginsburg, J., joined by Stevens, Souter & Breyer, JJ., dissenting). 653. 436 U.S. 658, 691 (1978). 654. Bd. of County Commrs v. Brown, 520 U.S. 397, 404 (1997). 108

X. Municipal Liability have either actual or constructive knowledge of it yet did nothing to end the pr actice. 655 In Sorlucco v. New York City Police Department, 656 the Second Circui t considered the sufficiency of the evidence showing that the New York Police De partment (NYPD) engaged in a pattern of disciplining probationary officers that discriminated against female officers. The plaintiff, Ms. Sorlucco, was a probat ionary police officer of the NYPD. In 1983, John Mielko, a tenured NYPD officer, brutally and sexually assaulted her for six hours in her Nassau County apartmen t. Mielko had located Ms. Sorluccos service revolver in her apartment, threatened her with it, and fired it into her bed. Upon learning of the alleged attack, th e NYPD made a perfunctory investigation that culminated in departmental charges being filed against her for failing to safeguard her service revolver and for fa iling to report that it had been fired. While this was going on in New York City , Nassau County officials were subjecting her to vulgar and abusive treatment an d, in fact, filed criminal charges against her for having falsely stated that sh e did not know the man who raped her. Ultimately, the NYPD fired Ms. Sorlucco for initially alleging and maintaining (for four days before she actually identifie d Mielko) that her attacker was simply named John, while Mielko, the accused rapis t, subsequently retired from the NYPD with his regular police pension. 657 Ms. So rlucco brought suit under 1983 and Title VII alleging that her termination was t he product of unlawful gender discrimination. Her theory of liability on the 198 3 municipal liability claim was that the NYPD engaged in a pattern of disciplinin g probationary officers, who had been arrested while on probation, in a discrimi natory . . . manner based upon . . . gender. 658 Although the jury tendered a ver dict in favor of the plaintiff, the district court granted the NYPDs motion for j udgment n.o.v., setting aside the verdict on the 1983 claim. (Judgment n.o.v. is now referred to as judgment as a matter of law, Fed. R. Civ. P. 50.) The district court found (1) that there was no evidence linking the police commissioner to M s. Sorluccos discrimina655. 656. 657. 658. Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). 971 F.2d 864 (2d Cir. 1992). Id. at 869. Id. at 871. 109

Section 1983 Litigation tory termination and (2) that no reasonable jury could infer an unconstitutional pattern or practice of gender discrimination from the evidence of disparate disc iplinary treatment between male and female probationary officers who had been ar rested. 659 On the first point, the Second Circuit concluded that [w]hile discrimi nation by the Commissioner might be sufficient, it was not necessary. 660 Althoug h the court did not elaborate, what it apparently meant was that although a fina l decision of a municipal policy maker provides a potential basis for imposing m unicipal liability, so does a widespread custom or practice, even if of subordin ates. 661 On the second point, the Second Circuit found, contrary to the distric t courts evaluation, that Ms. Sorlucco introduced sufficient evidence from which t he jury could reasonably infer an unconstitutional NYPD practice of sex discrimi nation. 662 The plaintiffs evidence of a practice of sex discrimination can be bro ken down into three categories: (1) the way in which the NYPD investigated the p laintiffs complaint, including, most significantly, the dramatically different wa y it reacted to Mr. Mielko and Ms. Sorlucco; 663 (2) expert testimony from an ex perienced former NYPD lieutenant with Internal Affairs that the departments invest igation of Mielko was dilatory and negligent; 664 and (3) a statistical study pre pared by the NYPD regarding actions taken against probationary officers who had been arrested between 1980 and 1985. During this period, forty-seven probationar y officers were arrested, twelve of whom resigned. Of the remaining thirty-five, thirty-one were male: twenty-two of the male officers were terminated and nine reinstated. All four of the female officers who had been arrested were terminate d. The court of appeals disagreed with the district courts conclusion that the st udy was statistically insignificant because only four female officers were fired. 659. Id. at 870. 660. Id. at 871. 661. Id. (a 1983 plaintiff may establish a muni cipalitys liability by demonstrating that the actions of subordinate officers are sufficiently widespread to constitu te the constructive acquiescence of senior policymakers) (citing City of St. Loui s v. Praprotnik, 485 U.S. 112, 130 (1988)). 662. Id. at 870. 663. Id. at 87273. 6 64. Id. at 872. 110

X. Municipal Liability The four women represented over 10% of the thirty-five probationary officers who were disciplined. While 100% of the female officers were terminated, only 63% o f the male officers were fired. Although the statistical evidence by itself woul d probably have been an insufficient basis on which to find an NYPD discriminato ry policy, it was sufficient when considered together with the evidence of the d iscriminatory treatment afforded Ms. Sorlucco. 665 The way the investigation of her complaint was handled made the cold statistics come alive, at least to the e xtent that the jury could rationally reach the result it did. 666 The decision i n Sorlucco is important because of its careful analysis of the legal, factual, a nd evidentiary aspects of the custom and practice issue. Relatively few decision s have analyzed these issues with such care. The case also demonstrates how the plaintiffs counsel creatively pieced together a case of circumstantial evidence s ubstantiating the constitutionally offensive practice. In contrast to the suffic ient evidence of a municipal practice found in Sorlucco, in Pineda v. City of Ho uston, 667 the Fifth Circuit held on summary judgment that the plaintiff submitt ed insufficient evidence to create a triable issue that the Houston Southwest Ga ng Task Force was engaged in a pattern of unconstitutional searches pursuant to a custom of the City. Plaintiffs produced reports of eleven warrantless entries in to residences, but the court found that [e]leven incidents each ultimately offering equivocal evidence of compliance wit h the Fourth Amendment cannot support a pattern of illegality in one of the Nati ons largest cities and police forces. The extrapolation fails both because the in ference of illegality is truly uncompellinggiving presumptive weight as it does t o the absence of a warrantand because the sample of alleged unconstitutional even ts is just too small.668 The Fifth Circuit also found that the evidence was insufficient to impute constr uctive knowledge to the citys policy makers. The opinions of plaintiffs experts th at there was a pattern of unconstitutional conduct were also insufficient to cre ate a triable issue of fact. Such opinions as to whether or not policy makers had constructive knowl665. 666. 667. 668. See also Watson v. Kansas City, 857 F.2d 690, 69596 (10th Cir. 1988). Sorlucco, 9 71 F.2d at 872. 291 F.3d 325, 32931 (5th Cir. 2002), cert. denied, 123 S. Ct. 892 (2003). Id. 111

Section 1983 Litigation edge do not create a fact issue, as the experts were unable to muster more than va gue attributions of knowledge to unidentified individuals in management or the chai n of command. 669 In Gillette v. Delmore,670 the plaintiff firefighter alleged tha t he had been suspended from his employment in retaliation for exercising his fr ee speech rights. The Ninth Circuit held that the plaintiff failed to introduce sufficient proof of an alleged practice that public safety employees wishing to c riticize emergency operations should be silent, cooperate, and complain later or r isk disciplinary reprisals. 671 The plaintiff failed to introduce evidence of a p attern of such disciplinary reprisals, or that the city manager or city council helped formulate or was even aware of such a policy. Further, the plaintiff pres ented no evidence as to how long the alleged practice had existed. Although the fire chief testified that remaining silent during an emergency and complaining la ter was a practice [among fire fighters] that we want to have followed, it was too l arge a leap to infer from the chiefs testimony that this reflected city policy. 67 2 D. Inadequate Training In City of Canton v. Harris, 673 the Supreme Court held that deliberately indiff erent training may give rise to 1983 municipal liability. The Court rejected the citys argument that municipal liability can be imposed only where the challenged policy itself is unconstitutional and found that there are limited circumstances in which an allegation of a failure to train can be the basis for liability under 1983.674 The Court held that 1983 municipal liability may be based on inadequate training only where the failure to train amounts to deliberate indifference to t he rights of persons with whom the police come in contact, and that deliberate in difference was the moving force of the violation of the plaintiffs federally prot ected right.675 The plaintiff must demonId. at 331. 979 F.2d 1342 (9th Cir.), ce rt. denied, 510 U.S. 932 (1992). Gillette, 979 F.2d at 1348. Id. at 1349. 489 U. S. 378 (1989). Id. at 387. Id. at 388. Prior to the decision in Canton, the Cour t in City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985), held that a police of ficers use of excessive force, even if un669. 670. 671. 672. 673. 674. 675. 112

X. Municipal Liability strate specific training deficiencies and either (1) a pattern of constitutional violations of which policy-making officials can be charged with knowledge, or ( 2) that training is obviously necessary to avoid constitutional violations, e.g. , training on the constitutional limits on a police officers use of deadly force. 676 The plaintiff must show that the need for more or different training was so obvious, and the inadequacy so likely to result in the violation of constitution al rights, as to amount to a municipal policy of deliberate indifference to citiz ens constitutional rights.677 The Court in Canton held that negligent or even gro ssly negligent training does not by itself give rise to a 1983 municipal liabili ty claim. The plaintiff must also demonstrate a sufficiently close causal connec tion between the deliberately indifferent training and the deprivation of the pl aintiffs federally protected right.678 The Supreme Court has stressed that the obj ective obviousness deliberate indifference standard for municipal liability inade quate training claims differs from the Eighth Amendment Farmer v. Brennan 679 de liberate indifference standard under which the official must be subjectively aware of the risk of serious harm. 680 The Court later usually excessive, did not warrant an inference that it was caused by deliberate indifference or grossly negligent training. 676. The Court observed: [I]t may happen that in light of the duties assigned to specific officers or emp loyees 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 policym akers of the city can reasonably be said to have been deliberately indifferent t o 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. Canton, 489 U.S. at 390 (footnotes omitted). 677. Id. 678. Id. at 39192. Similarl y, the Second Circuit has held that to establish municipal liability based on a deliberately indifferent failure to train, a plaintiff must show: [1] [T]hat a policymaker knows to a moral certainty that her employees will confro nt a given situation. Thus, a policymaker does not exhibit deliberate indifferen ce by failing to train employees for rare or unforeseen events. . . . [2] [T]hat the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation . . . [and] [3] The wrong choice by the city employee will frequently cause the deprivation of a citizens constitutional rights. Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992) (citations omitted) . 679. 511 U.S. 825, 82829 (1994). 680. Id. See supra Part IV.H. 113

Section 1983 Litigation explained that its objective obviousness deliberate indifference standard in Canto n was for the . . . purpose of identifying the threshold for holding a city respo nsible for the constitutional torts committed by its inadequately trained agents . 681 The Court in Canton ruled that a plaintiff must identify a particular defic iency in the training program and prove that the identified deficiency was the a ctual cause of the plaintiffs constitutional injury.682 The plaintiff will not pr evail merely by showing that the particular officer was inadequately trained, or that there was negligent administration of an otherwise adequate program, or th at the conduct resulting in the injury could have been avoided by more or better training.683 The federal courts are not to become involved in an endless exercis e of second-guessing municipal employee-training programs. 684 In Canton, the Cou rt acknowledged that the trier of fact will be confronted with difficult factual issues concerning alleged deliberately indifferent training deficiencies and ca usation. Predicting how a hypothetically well-trained officer would have acted un der the circumstances may not be an easy task for the fact-finder, particularly since matters of judgment may be involved and since officers who are well traine d are not free from error and perhaps might react much like [an] untrained offic er. 685 Nevertheless, the Court expressed optimism that judges and juries would b e able to resolve these issues. In her concurring opinion, Justice OConnor elabor ated on how a plaintiff could show that a municipality was deliberately indiffer ent to an obvious need for training. First, where there is a clear constitutional duty implicated in recurrent situations that a particular employee is certain t o face, . . . failure to inform city personnel of that duty will create an extre mely high risk that constitutional violations will ensue. 686 Collins v. City of Harker Heights, 503 U.S. 115, 124 (1992). Canton, 498 U.S. at 39091. Id. Id. at 392. Id. at 391. Id. at 396 (OConnor, J., concurring in part an d 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 th e use of deadly force (see Tennessee v. Garner, 471 U.S. 1 (1985)) and that a fa ilure to so train would be so certain to result in constitutional viola681. 682. 683. 684. 685. 686. 114

X. Municipal Liability Justice OConnor also recognized that municipal liability on a failure to train theo ry might be established where it can be shown that policy makers were aware of, a nd acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. . . . Such a [pattern] could put the municipality on notic e that its officers confront the particular situation on a regular basis, and th at they often react in a manner contrary to constitutional requirements. 687 Thus , Canton identifies two different approaches to a failure-totrain case. 688 Firs t, deliberate indifference may be established by demonstrating a failure to trai n officials in a specific area where there is an obvious need for training in or der to avoid violations of citizens constitutional rights.689 Second, a municipal ity may be held responsible under 1983 where a pattern of unconstitutional condu ct is so pervasive as to imply actual or constructive knowledge of the conduct o n the part of policy makers, whose deliberate indifference to the unconstitution al practice is evidenced by a failure to correct the situation once the need for training became obvious. 690 Canton imposes stringent standards for fault (delib erate indifference) and causation (moving force). As noted earlier, the Court in tions as to reflect the deliberate indifference to constitutional rights required for the imposition of municipal liability. Canton, 498 U.S. at 390 n.10. 687. Id . at 397 (OConnor, J., concurring in part and dissenting in part). 688. See also Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316, 1327 (7th Cir. 1993 ) (setting out an analysis that clearly illustrates the two different methods of establishing Canton deliberate indifference); Thelma D. v. Bd. of Educ., 934 F. 2d 929, 93445 (8th Cir. 1991) (same). 689. See also Allen v. Muskogee, 119 F.3d 8 37, 843 (10th Cir. 1997) (finding a 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 poli ce procedures and tactical principles); Zuchel v. City & County of Denver, 997 F. 2d 730, 741 (10th Cir. 1993) (finding evidence clearly sufficient to permit the j ury reasonably to infer that Denvers failure to implement . . . recommended [peri odic live shootdont 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 Countys failure to train its officers in the legal li mits of the use of force constituted deliberate indifference to the safety of its inhabitants). 690. See, e.g., Chew v. Gates, 27 F.3d 1432, 1445 (9th Cir. 1994) ( where city requires police officers with police dogs that inflict injury in sign ificant number of cases, failure to adopt policies governing the dogs use and con stitutional limits on their use constitutes deliberate indifference). 115

Section 1983 Litigation Canton expressly stated that federal courts should not lightly secondguess munic ipal training policies. Although numerous municipal liability claims based on in adequate training have been alleged, a relatively small percentage of these clai ms have succeeded.691 E. Inadequate Hiring In limited circumstances, 1983 municipal liability may be based on deficiencies in hiring. In Board of County Commissioners v. Brown,692 the Supreme Court held that municipal liability can be premised upon a municipalitys deliberately indiff erent hiring of a constitutional wrongdoer, but only if the plaintiff demonstrat es that the hired officer was highly likely to inflict the particular injury suff ered by the plaintiff. The Court acknowledged that the fault and causation standa rds for inadequate hiring claims are even more stringent than for inadequate tra ining claims. 693 In order to prevent municipal liability for a hiring decision f rom collapsing into respondeat superior liability, a court must carefully test t he link between the policy makers inadequate decision and the particular injury a lleged. 694 In Brown, Sheriff B.J. Moore hired his sons nephew, Stacy Burns, despi te Burnss extensive rap sheet that included numerous violations and arrests, but no felonies. Plaintiff Brown suffered a severe knee injury when Reserve Deputy Bur ns forcibly extracted her from the car driven by her husband, who had avoided a police checkpoint. She sued both Burns and the county under 1983.695 In a fivefou r opinion written by Justice OConnor, the Supreme Court held that the county did not violate the plaintiffs rights by hiring Reserve Deputy Burns. It distinguishe d Browns claim, involving a single lawful hiring decision that ultimately resulte d in a constitutional violation, from a claim that a particular municipal action itself violates federal law, or directs an employee to do so. 696 As the Court no ted, its prior cases recognizing municipal liability based on a single act or de 691. See 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 7.1 7[B], [C] (4th ed. 2005). 692. 520 U.S. 397, 412 (1997). 693. Id. at 41516. 694. Id. at 410. 695. Id. at 40002. 696. Id. at 405. 116

X. Municipal Liability cision by a government entity involved decisions of local legislative bodies or policy makers that directly effected or ordered someone to effect a constitution al deprivation.697 The majority also rejected the plaintiffs effort to analogize inadequate screening to a failure to train.698 The majority said that the plaint iff was required to produce evidence from which a jury could find that, had Sher iff Moore adequately screened Deputy Burns background, Moore should have concluded that Burns use of excessive force would be a plainly obvious consequence of the hiring decision. 699 The plaintiffs evidence of the sheriffs scrutiny of Burns recor d did not enable the jury to make such a finding. 700 Justice Souter, joined by Justices Breyer and Stevens, dissented, characterizing the majority opinion as a n 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. 701 Justice Breyer, joined by Justices Ginsburg and Stevens, crit icized the highly complex body of interpretive law that has developed to maintain and perpetuate the distinction adopted in Monell between direct and vicarious li ability, and called for a reexamination of the legal soundness of that basic dist inction itself. 702 697. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 484 (1986) (county prosecutor, acting as final decision maker for the county, gave order that resul ted in constitutional violation); City of Newport v. Fact Concerts, Inc., 453 U. S. 247, 252 (1981) (decision of city council to cancel license permitting concer t directly violated constitutional rights); Owen v. City of Independence, 445 U. S. 622, 633 n.13 (1980) (city council discharged employee without due process). In 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) (ho lding county liable for sheriffs rape of murder suspect, where sheriff was final policy maker in matters of law enforcement). 698. Brown, 520 U.S. at 40911. 699. Id. at 412. 700. Id. at 41013. 701. Id. at 421 (Souter, J., dissenting). 702. Id. at 43031 (Breyer, J., dissenting). 117

Section 1983 Litigation F. Pleading Municipal Liability Claims In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 703 the Supreme Court held that federal courts may not impose a heightened pleading requirement for 1983 municipal liability claims.704 This means that the Federal Rules of Civil Procedure notice pleading standard governs 1983 municipal liabili ty claims. However, even after Leatherman, some courts reject wholly conclusory allegations of municipal policy or practice. 705 703. 507 U.S. 163 (1993). 704. Id. For post-Leatherman decisions involving plead ing against local government entities, see Atchinson v. District of Columbia, 73 F.3d 418, 423 (D.C. Cir. 199 6) (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 plaintiffs claim.) and Jordan v. Jackson, 15 F.3d 333, 339 (4th Cir. 1994) (We bel ieve it is clear . . . that the Supreme Courts rejection of the Fifth Circuits heig htened pleading standard in Leatherman constitutes a rejection of the specific re quirement that a plaintiff plead multiple instances of similar constitutional vi olations to support an allegation of municipal policy or custom.). 705. See, e.g. , Spiller v. Texas City, 130 F.3d 162, 167 (5th Cir. 1997). A federal district c ourt found it unclear whether a bold or naked allegation of municipal policy or cust om is sufficient to satisfy notice pleading. Luthy v. Proulx, 464 F. Supp. 2d 69 , 75 (D. Mass. 2006). 118

XI. Supervisory Liability XI. Supervisory Liability In many 1983 actions, the plaintiff seeks to impose liability not only on the of ficer who directly engaged in the unconstitutional conduct (e.g., a police offic er) but also on a supervisory official (e.g., the chief of police). The supervis ory liability claim is normally premised upon allegations that the supervisor kn ew or should have known there was danger that the subordinate would engage in th e unconstitutional conduct and the supervisor had the authority to take steps to prevent the conduct, yet failed to act. Like municipal liability claims, superv isory liability claims normally seek to impose liability upon one party (the sup ervisor) for a wrong directly inflicted by another party (the subordinate). In s ome cases, however, a supervisor may have directly inflicted the harm or partici pated in doing so. Like 1983 municipal liability, 1983 supervisory liability may not be based on respondeat superior but only on the supervisors own wrongful act s or omissions. 706 And, like municipal liability, there must be a sufficient ca usal link or nexus between the supervisors wrongful conduct and the violation of the plaintiffs federally protected right.707 On the other hand, there are importa nt differences between supervisory liability and municipal liability: 1. Supervi sory liability is a form of personal liability; municipal liability is a form of entity liability.708 2. Because supervisory liability imposes personal liabilit y, supervisors may assert a common-law absolute or qualified immunity defense. 7 09 Municipalities may not assert these immunity 706. Monell v. Dept of Soc. Servs., 436 U.S. 658, 694 n.58 (1978). Supervisory li ability must be based on more than the right to control employees. Likewise, simp le awareness of employees misconduct does not lead to supervisory liability. Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citations and internal quotati on marks omitted). 707. See, e.g., Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999); Aponte Matus v. Toledo Davila, 135 F.3d 182, 192 (1st Cir. 1998); Shaw v . Stroud, 13 F.3d 791, 799 (4th Cir. 1994). 708. Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987) ([W]hen supervisory liability is imposed, it is imposed agai nst the supervisory official in his individual capacity for his own culpable act ion or inaction in the training, supervision, or control of his subordinates.). 7 09. See Poe v. Leonard, 282 F.3d 123, 134 (2d Cir. 2002) (finding that a supervi sory official is protected by qualified immunity unless both federal right and b asis of supervi119

Section 1983 Litigation defenses, although municipalities sued under 1983 are absolutely immune from pun itive damages (discussed supra Part X). 3. A municipal entity may be liable unde r 1983 only when the violation of the plaintiffs federal right is attributable to the enforcement of a municipal policy or practice. By contrast, supervisory lia bility does not depend on a municipal policy or practice. The Supreme Court has yet to formulate culpability standards for supervisory liability. The courts of appeals have articulated slightly varied standards, but generally require a show ing (1) that the supervisory defendant either acquiesced in or was deliberately indifferent to the subordinates unconstitutional conduct; and (2) that the superv isors action or inaction was affirmatively linked to the deprivation of the plainti ffs federal rights.710 However, there may be some disagreement sory liability were clearly established); Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998) (holding that when a supervisory official asserts qualified immu nity, plaintiff will prevail only if it is shown that (1) the subordinates actions violated a clearly established federal right, and (2) it was clearly establishe d that a supervisor would be liable for constitutional violations perpetrated by his subordinates in that context), cert. denied, 525 U.S. 1105 (1999). 710. Rizz o v. Goode, 423 U.S. 362, 371 (1976). Below is a breakdown of circuit standards for supervisory liability: First Circuit: Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 25 (1st Cir. 2006) (absent participation in the challenged conduct, sup ervisor can be liable only if subordinate committed constitutional violation and supervisors action or inaction was affirmatively linked to the violation in that i t constituted supervisory encouragement, condonation, acquiescence, or gross neg ligence amounting to deliberate indifference); Aponte Matos v. Toledo Davila, 13 5 F.3d 182, 192 (1st Cir. 1998) (supervisory encouragement, condonation, acquies cence, or deliberate indifference). See also Wilson v. Town of Mendon, 294 F.3d 1, 1213 (1st Cir. 2002); Camilo-Robles v. Hoyos, 151 F.3d 1, 1213 (1st Cir. 1998), cert. denied, 525 U.S. 1105 (1999). Second Circuit: Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (direct participation in wrongdoing, failure to remedy w rong after being informed of it, creation of policy or custom, grossly negligent supervision, or deliberately indifferent failure to act on information about co nstitutional violations). See also Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir . 2003); Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002). Third Circuit: Rode v . Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (supervisor must have person ally directed or have had knowledge of and acquiesced in unlawful conduct). See also Baker v. Monroe Twp., 50 F.3d 1186, 119091 (3d Cir. 1995). Fourth Circuit: C arter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (actual or constructive knowl edge of risk of constitutional injury and deliberate indifference to that risk a nd 120

XI. Supervisory Liability affirmative link between supervisors inaction and constitutional injury); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 513 U.S. 813, 814 (1994) (pl aintiff must establish: (1) that the supervisor had actual or constructive knowle dge that his subordinate was engaged in conduct that posed a pervasive and unreas onable risk of constitutional injury to citizens like the plaintiff; (2) that the supervisors response to that knowledge was so inadequate as to show deliberate in difference to or tacit authorization of the alleged offensive practices; and (3) that there was an affirmative causal link between the supervisors inaction and the particular constitutional injury suffered (quoting Miller v. Bearn, 896 F.2d 848, 854 (4th Cir. 1990))). See also Randall v. Prince Georges County, 302 F.3d 188, 206 (4th Cir. 2002). Fifth Circuit: Atteberry v. Nocona Gen. Hosp., 430 F.3d 245 , 254 (5th Cir. 2005) (supervisors may be liable for constitutional violations co mmitted by subordinate employees when supervisors act, or fail to act, with deli berate indifference to violations of others constitutional rights committed by th eir subordinates; court adopted Farmer v. Brennan, 511 U.S. 825 (1994), definitio n of deliberate indifference); Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (supervisory liability requires a showing of deliberately indiff erent training or supervision causally linked to violation of plaintiffs rights). Sixth Circuit: Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (Plaintiff must also show that the supervisor somehow encouraged or condoned the actions of their inferiors. Plaintiff, however, presents evidence only that [th e] supervisors . . . failed to review their subordinates work. (citations omitted) ); Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir. 2002) (Supervisor liabil ity [under 1983] occurs either when the supervisor personally participates in th e alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged depriva tion, and he [or she] fails to do so. The deprivations that constitute widesprea d abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.) (citing B raddy v. Fla. Dept of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998) ); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (supervisory liability cannot be based on mere failure to act; the supervisor must have at least implici tly authorized, approved, or knowingly acquiesced in the unconstitutional conduc t of the offending [subordinate] officers) (citing Hays v. Jefferson County, 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982)); Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). See also Combs v. Wilkinson, 315 F.3d 548, 558 ( 6th Cir. 2002). Seventh Circuit: Jones v. Chicago, 856 F.2d 985, 99293 (7th Cir. 1988) (conduct of subordinate must have occurred with supervisors knowledge, cons ent, or deliberate indifference). See also Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997). Eighth Circuit: Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (supervisor may be liable under 1983 if (1) she had notice of subordi nates unconstitutional actions; (2) she [d]emonstrated deliberate indifference to or tacit authorization of the offensive acts; and (3) her failure to act proximate ly caused injury). Ninth Circuit: Cunningham v. Gates, 229 F.3d 1271, 1292 (9th C ir. 2000) (Supervisors can be held liable for: 1) their own culpable action or in action in the training, supervision, 121

Section 1983 Litigation as to whether the requisite culpability for supervisory inaction can be establis hed on the basis of a single incident of subordinates misconduct, or whether a pa ttern or practice of constitutional violation must be shown.711 or control of subordinates; 2) their acquiescence in the constitutional deprivat ion of which a complaint is made; or 3) conduct that showed a reckless or callou s indifference to the rights of others.). Tenth Circuit: Lankford v. City of Hoba rt, 73 F.3d 283, 287 (10th Cir. 1996) (personal direction or actual knowledge of w rongdoing and acquiescence) (following Woodward v. City of Worland, 977 F.2d 139 2, 1400 (10th Cir. 1992), cert. denied, 509 U.S. 923 (1993)). Eleventh Circuit: Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (supervisor (1) personall y participated in unconstitutional conduct; (2) failed to correct widespread vio lations; (3) initiated custom or policy that was deliberately indifferent to con stitutional rights; or (4) directed subordinates to act unconstitutionally or kn ew they would do so yet failed to stop them from doing so). See also Dalrymple v . Reno, 334 F.3d 991, 99596 (11th Cir. 2003). D.C. Circuit: Barham v. Ramsey, 434 F.3d 565, 578 (D.C. Cir. 2006) (supervisory liability requires showing superviso r . . . [knew] about the conduct and facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what he might see); Intl Action Center v. United States, 365 F.3d 20, 2528 (D.C. Cir. 2004) (actual or constructive knowle dge of past transgressions or responsible for or aware of clearly deficient traini ng); Haynesworth v. Miller, 820 F.2d 1245, 125960 (D.C. Cir. 1987) (breach of dut y to instruct subordinate to prevent constitutional harm). 711. Compare Howard v . Adkison, 887 F.2d 134, 138 (8th Cir. 1989) ([A] single incident, or a series of isolated incidents, usually provides an insufficient basis upon which to assign supervisory liability. However, as the number of incidents grows and a pattern begins to emerge, a finding of tacit authorization or reckless disregard becomes more plausible.), with Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 567 (1st Cir. 1989) (An inquiry into whether there has been a pattern of past abuses or of ficial condonation thereof is only required when a plaintiff has sued a municipa lity. Where . . . plaintiff has brought suit against the defendants as individua ls . . . plaintiff need only establish that the defendants acts or omissions were the product of reckless or callous indifference to his constitutional rights an d that they, in fact, caused his constitutional deprivations.). 122

XII. Relationship Between Individual and Municipal Liability XII. Relationship Between Individual and Municipal Liability When claims are brought against both a state or local official individually and against a municipal entity, the district court has discretion to either bifurcat e the claim or try them jointly. 712 Section 1983 plaintiffs generally favor a j oint trial because the plaintiff may be allowed to introduce evidence of wrongdo ing by other officers or by the municipal entity, albeit with limiting instructi ons. Section 1983 defendants normally seek bifurcation in order to thwart this s trategy. In Los Angeles v. Heller,713 the plaintiff asserted 1983 false arrest a nd excessive force claims; the complaint alleged personal capacity and municipal liability claims. The Supreme Court held that a determination in the first phas e that the individual officer did not violate the plaintiffs federally protected rights required dismissal of the municipal liability claim. The Court reasoned t hat, because the municipal liability claim was premised on the citys allegedly ha ving adopted a policy of condoning excessive force in making arrests, the city c ould not be liable under 1983 unless some official violated the plaintiffs federa lly protected rights under the alleged policy. 714 Some courts have read Heller br oadly as meaning that if the personal capacity claim is dismissed, the municipal liability claim must be dismissed. 715 However, other courts have recognized si tuations in which the named subordinate defendant did not violate the plaintiffs federally protected rights, but the plaintiffs rights were violated by the joint action of a group of officers, or by a nondefendant, or by policymaking official s. 716 Under these circumstances, dismissal of the claim against the individual officerdefendant should not result in automatic dismissal of the municipal liabil ity claim.717 712. Fed. R. Civ. P. 42(b). See, e.g., Amato v. City of Saratoga Springs, 170 F. 3d 311, 316 (2d Cir. 1999). See also 1A Martin A. Schwartz, Section 1983 Litigat ion: Claims and Defenses 7.14 (4th ed. 2005). 713. 475 U.S. 796 (1986). 714. Id. at 79699. 715. See 1A Schwartz, supra note 712, 7.13. 716. Id. 717. See Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002); Speer v. City of Wynne, 276 F.3d 98 0, 986 (8th Cir. 2002); Barrett v. Orange County, 194 F.3d 341, 350 (2d Cir. 123

Section 1983 Litigation The fact that the plaintiffs claim against the individual officer defendant is def eated by qualified immunity should not automatically result in dismissal against the municipality, because an officer who is protected by qualified immunity may have violated the plaintiffs federally protected rights. The qualified immunity determination may mean only that the defendant did not violate the plaintiffs cle arly established federally protected rights.718 While qualified immunity may be asserted by an official sued in his personal capacity, it may not be asserted by a municipal entity (discussed supra Part X). The interplay of the rules governi ng qualified immunity and municipal liability results in a cost-allocation schem e among the municipality, the individual officer, and the plaintiff whose federa lly protected rights were violated. The Supreme Court, in Owen v. City of Indepe ndence,719 explained how the costs are allocated: 1. The municipality will be held liable when the violation of the plaintiffs federally protected right is attribu table to enforcement of a municipal policy or practice. 2. The individual office r will be held liable when she violated plaintiffs clearly established federally protected right and, therefore, she is not shielded by qualified immunity. 3. Th e plaintiff whose federally protected right was violated will not be entitled to monetary recovery and will absorb the loss when the violation of his right is not attributable to a municipal policy or practice and the individual officer did n ot violate plaintiffs clearly established federal rights. 1999); Anderson v. Atlanta, 778 F.2d 678, 686 (11th Cir. 1985); Garcia v. Salt L ake County, 768 F.2d 303, 310 (10th Cir. 1985). 718. See, e.g., Doe v. Sullivan County, 956 F.2d 545, 554 (6th Cir.) (holding that the dismissal of a claim again st an officer asserting qualified immunity in no way logically entails that the plaintiff suffered no constitutional deprivation, nor . . . that a municipality . . . may not be liable for that deprivation), cert. denied, 506 U.S. 864 (1992). 719. 445 U.S. 622, 657 (1980). 124

XIII. State Liability: The Eleventh Amendment XIII. State Liability: The Eleventh Amendment A. Generally Under the Eleventh Amendment, the states have immunity from suit in federal cour ts.720 Although the Eleventh Amendment language refers to a suit brought by a ci tizen of one state against another state, the Supreme Court has long interpreted the amendment as granting the states sovereign immunity protection even when a state is sued in federal court by one of its own citizens.721 The Courts rational e is that there is a broader state sovereign immunity underlying the Eleventh Am endment, and that this broader immunity should be read into the Eleventh Amendme nt. B. State Liability in 1983 Actions The Supreme Court holds that the Eleventh Amendment applies to 1983 claims again st states and state entities because, in enacting the original version of 1983, Congress did not intend to abrogate the states Eleventh Amendment immunity.722 Th erefore, a federal court award of 1983 damages against a state, state agency, or state official sued in an official capacity is barred by the Eleventh Amendment .723 720. U.S. Const. amend. XI. The circuits are in conflict over whether a federal court must reach an Eleventh Amendment defense before addressing the merits. See authorities cited in Nair v. Oakland County Community Mental Health Authority, 443 F.3d 469, 474 77 (6th Cir. 2006). 721. Hans v. Louisiana, 134 U.S. 1, 10 (189 0) (holding that a citizen could not sue a state in federal court without that s tates consent). See Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996) (reaffirmin g Hans). 722. Quern v. Jordan, 440 U.S. 332, 342 (1979). 723. Edelman v. Jordan, 415 U.S. 651, 663 (1974) (stating that when the action is in essence one for the recovery of money from the state, the state is the real, substantial party in i nterest and is entitled to invoke its [Eleventh Amendment] sovereign immunity fr om suit even though individual officials are nominal defendants) (quoting Ford Mo tor Co. v. Dept of Treasury, 323 U.S. 459, 464 (1945)). Even if a third party agr ees to indemnify the state, the Eleventh Amendment still protects the state from a federal court monetary judgment. Regents of the Univ. of Cal. v. Doe, 519 U.S . 425, 431 (1997). 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, 491 U.S. 58 (1989), the Supreme Court held that neither a state nor a state offi cial in his official capacity is a person for purposes of a 1983 damages action. W ill, 491 U.S. at 71. Thus, even if a state is found to have waived its Elev125

Section 1983 Litigation However, under the doctrine of Ex parte Young, 724 prospective relief against a state official in his official capacity to prevent future federal constitutional or federal statutory violations is not barred by the Eleventh Amendment. The Co urt in Young reasoned that a state official who violated federal law is stripped of his official or representative character and, therefore, did not act for the s tate, but as an individual. Because the Eleventh Amendment protects states and s tate entities, and not individuals, the claim for prospective relief is not barr ed by the Eleventh Amendment. The rationale behind the Young doctrine is fictiti ous because Young prospective relief operates in substance against the state and may have a substantial impact on the state treasury. The Young doctrine permits federal courts to enjoin state officials to conform their conduct to requirement s of federal law, notwithstanding a direct and substantial impact on the state t reasury. 725 The Young fiction was born of necessity to enable the federal courts to ensure prospective compliance by the states with federal law. To determine w hether a plaintiff has alleged a proper Young claim, the federal court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective . 726 In addition, the plaintiff must name as defendant the state official who is responsible for enforcing the contested statute in her official capacity;727 a c laim for prospective relief against the state itself, or a state agency, will be enth Amendment immunity in federal court, or even if a 1983 action is brought in state court, where the Eleventh Amendment is not applicable, Will precludes a d amages action against the state government entity. Id. This holding does not app ly when a state official is sued in his official capacity for prospective injunc tive relief. Id. at 71 n.10. 724. 209 U.S. 123 (1908). 725. Milliken v. Bradley, 433 U.S. 267, 289 (1977). But see Antrican v. Odom, 290 F.3d 178, 185 (4th Cir. 2002) (observing that simply because the implementation of such prospective reli ef would require the expenditure of substantial sums of [state] money does not r emove a claim from the Ex Parte Young exception). 726. Verizon Md. Inc. v. Pub. S erv. Commn of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur dAlene Tribe o f Idaho, 521 U.S. 261, 296 (1997) (OConnor, J., concurring)). 727. See Greenawalt v. Ind. Dept of Corr., 397 F.3d 587, 589 (7th Cir. 2005) (noting that section 198 3 does not permit injunctive relief against state officials sued in their indivi dual as distinct from their official capacity). 126

XIII. State Liability: The Eleventh Amendment barred by the Eleventh Amendment.728 Declaratory relief is within the Young doct rines reach, but only when there are ongoing or threatened violations of federal law.729 When a federal court grants Young prospective relief, the court has powe r to enforce that relief, including by ordering monetary sanctions payable out o f the state treasury.730 Similarly, a federal courts enforcement against a state of a consent decree that is based on federal law does not violate the Eleventh A mendment.731 The rationale [i]s that in exercising their prospective powers under Ex Parte Young, federal courts are not reduced to [granting prospective relief] and hoping for compliance. Once issued, an injunction may be enforced. Many of the courts most effective enforcement weapons involve financial penalties. 732 In Pennhurst State School & Hospital v. Halderman, 733 the Supreme Court held that the Young doctrine does not apply to state law claims that are pendent (supplemen tal) to the 1983 claim. Therefore, a supplemental state law claim that seeks to c ompel the state to comply with state law is barred by the Eleventh Amendment. Th e Court in Pennhurst reasoned that the Young fiction was born of the necessity o f federal supremacy to enable the federal courts to compel state compliance with federal law, a factor not present when the plaintiff claims a violation of stat e law.734 The Court in Pennhurst viewed federal court relief requiring a state t o comply with state law as a great intrusion on state sovereignty.735 C. Personal Capacity Claims The Eleventh Amendment does not grant immunity when a 1983 claim for damages is asserted against a state official in her personal capacity.736 The monetary reli ef awarded on such a claim would not be 728. 729. 730. 731. 732. 733. 734. 735. 736. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978). See Green v. Mansour, 474 U.S. 64, 73 (1985). See Hutto v. Finney, 437 U.S. 678, 691 (1978). See Frew v. H awkins, 540 U.S. 431, 440 (2004). Hutto, 437 U.S. at 690. 465 U.S. 89 (1984). Id . at 99100. Id. Hafer v. Melo, 502 U.S. 21, 3031 (1991). 127

Section 1983 Litigation payable out of the state treasury, but would come from the state officials person al funds, which are not protected by the Eleventh Amendment.737 The fact that th e state agreed to indemnify the state official for a personal capacity monetary judgment does not create Eleventh Amendment immunity because the decision to ind emnify is a voluntary policy choice of state government; it is not compelled by mandate of the federal court.738 D. Municipal Liability; The Hybrid Entity Problem The Eleventh Amendment does not protect municipalities. 739 Thus, in contrast to a 1983 federal court damage award against a state entity, a 1983 damage award a gainst a municipality is not barred by the Eleventh Amendment. Many governing bo dies have attributes of both state and local entities. For example, an entity ma y receive both state and local funding, or an entity that carries out a local fu nction may be subject to state oversight. Federal courts frequently have to dete rmine whether such a hybrid entity should be treated as an arm of the state or of local government.740 In making this determination, the most im737. Id. 738. See, e.g., Stoner v. Wis. Dept of Agric., 50 F.3d 481, 48283 (7th Cir. 1995). 739. See Missouri v. Jenkins, 495 U.S. 33, 56 n.20 (1990); Monell v. Dept of Soc. Servs., 436 U.S. 658, 690 n.54 (1978); Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 28081 (1977). See also N. Ins. Co. of N.Y. v. Chatham County, 126 S . Ct. 1689, 1694 (2006) (sovereign immunity does not protect municipalities); Pe ople for Ethical Treatment of Animals v. Gittens, 396 F.3d 416, 425 (D.C. Cir. 2 005) (The District of Columbia is a municipality for the purpose of 1983.). 740. S ee Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The circuit courts have articulated a variety of formulas to determine whether a n entity is an arm of the state or of local government, see 1A Schwartz, supra n ote 712, 8.10. See, e.g., Febres v. Camden Bd. of Educ., 445 F.3d 227, 22930 (3d Cir. 2006) (explaining that the court decides whether an entity is arm of state by giving equal consideration to three factors: (1) whether the payment of the judgme nt would come from the state, (2) what status the entity has under state law, an d (3) what degree of autonomy the entity has; in close cases, the prime guide shoul d be protecting the state from federal court judgments payable out of the state treasury); Ernst v. Rising, 427 F.3d 351, 359 (6th Cir. 2005) (en banc) (holding that to determine whether an entity is arm of state or of local government, court should consider (1) whether the state would be responsible for a judgment . . . ; (2) how state law defines the entity; (3) what degree of control the state mai ntains over the entity; and (4) the source of the entitys funding; whether the sta te will be liable for judgment is the most important inquiry). 128

XIII. State Liability: The Eleventh Amendment portant factor is whether the federal court judgment can be satisfied from state or municipal funds,741 because the Eleventh Amendment is designed to protect th e state treasury. A hybrid entity asserting Eleventh Amendment immunity bears the burden of demonstrating that it is an arm of the state protected by Eleventh Ame ndment immunity.742 In Mt. Healthy City School District Board of Education v. Do yle,743 the Supreme Court found that because the defendant school board was more like a municipality than an arm of the state, it was not entitled to assert Ele venth Amendment immunity. The school board received significant state funding an d was subject to some oversight from the state board of education, but it also h ad power to raise its own funds by issuing bonds and levying taxes, and state la w did not consider the school board an arm of the state. The Court found that, [o ]n balance, the school board was more like a county or city than it [was] like an arm of the state. 744 In Lake Country Estates, Inc. v. Tahoe Regional Planning Ag ency, 745 the Court followed its Mt. Healthy approach and adopted the presumptio n 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 St ates themselves, and that Congress concurred in that purpose . . . . 746 741. See Ernst, 427 F.3d at 359 (interpreting Supreme Court decision in Regents of University of California v. Doe, 519 U.S. 425, 431 (1997), as holding that to determine whether an entity is an arm of the state, the foremost factor is the s tate treasurys potential legal liability for judgment, not whether the state trea sury will pay for the judgment in that case). 742. Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 23739 (2d Cir. 2006). 743. 429 U.S. 274 (1 977). 744. Id. at 28081. 745. 440 U.S. 391 (1979). 746. Id. at 401. See also Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 52 (1994) (holding that injured railroad workers could assert a federal statutory right under the Federal Employ ers Liability Act to recover damages against the Port Authority, and that concer ns underlying the Eleventh Amendmentthe States solvency and dignity were not touched) . 129

Section 1983 Litigation E. Eleventh Amendment Waivers A state may voluntarily waive its Eleventh Amendment immunity, but these waivers are relatively rare. The Supreme Court invokes a strong presumption against Ele venth Amendment waiver and has held that waiver will be found only if the state agrees to subject itself to liability in federal court by express language or . . . overwhelming [textual] implications. 747 The Supreme Court found a deliberate waiver of Eleventh Amendment immunity, however, where the state official removed a state suit to federal court.748 The Court reasoned that it would seem anomalou s or inconsistent for a state to invoke the judicial power of the federal court w hile, at the same time, asserting that the Eleventh Amendment deprived the feder al court of judicial power.749 F. Eleventh Amendment Appeals In Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 750 the Supre me Court held that a district courts denial of Eleventh Amendment immunity is imm ediately appealable to the court of appeals. The Court relied on the fact that t he Eleventh Amendment grants states not only immunity from liability, but also im munity from suit and from the burdens of litigation.751 It found that an immediat e appeal was necessary to vindicate this immunity as well as the states dignitary interests. 752 747. A states waiver of sovereign immunity from liability in state court is not a waiver of Eleventh Amendment immunity in the federal courts. Fla. Dept of Health v. Fla. Nursing Home Assn, 450 U.S. 147, 150 (1981) (per curiam). 748. Lapides v . Bd. of Regents, 535 U.S. 613 (2002). 749. Id. at 619. 750. 506 U.S. 139 (1993) . The law of the First Circuit, that the Commonwealth of Puerto Rico is treated as a state for purposes of the Eleventh Amendment, was not challenged in the Sup reme Court, and the Court expressed no view on the issue. Id. at 141 n.1. 751. I d. at 144. 752. Id. at 146. 130

XIV. Personal Capacity Claims: Absolute Immunities XIV. Personal Capacity Claims: Absolute Immunities A. Absolute Versus Qualified Immunity: The Functional Approach Officials sued for monetary relief in their personal capacities may be entitled to assert a common-law defense of absolute or qualified immunity. In general, ju dges, prosecutors, witnesses, and legislators may assert absolute immunity, whil e executive and administrative officials may assert qualified immunity. Most off icials are entitled only to qualified immunity. Whether an official may assert a bsolute or qualified immunity depends on the nature of the function performed, not the identity of the actor who performed it. 753 Thus, an official may be entitled to absolute immunity for carrying out one function but only to qualified immuni ty for another. For example, a judge may assert absolute judicial immunity for c arrying out her judicial functions, but only qualified immunity for carrying out administrative and executive functions, such as hiring and firing court employe es. 754 And, as discussed below, prosecutors may claim absolute prosecutorial im munity for their advocacy functions, but only qualified immunity for their inves tigatory and administrative functions. B. Judicial Immunity The law has long recognized a broad absolute judicial immunity.755 A judge does not lose absolute immunity simply because he acted in excess of jurisdiction; ab solute immunity is lost only when the judge either did not perform a judicial ac t or when the judge acted in the clear absence of all jurisdiction. 756 A judge wh o acts in excess of jurisdiction, or without personal jurisdiction, or who makes grave procedural errors, or who acts maliciously or corruptly or in excess of 753. Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting Forrester v. White, 4 84 U.S. 219, 229 (1988)). 754. See Forrester, 484 U.S. 219. 755. Mireles v. Waco , 502 U.S. 9, 1112 (1991); Stump v. Sparkman, 435 U.S. 349, 356 57 (1978). See als o Pierson v. Ray, 386 U.S. 547, 55354 (1967); Bradley v. Fisher, 80 U.S. 335, 347 (1872). 756. Stump, 435 U.S. at 35657 (quoting Bradley, 80 U.S. at 351). 131

Section 1983 Litigation authority, does not necessarily act in the clear absence of all jurisdiction.757 To determine whether the judge performed a judicial act, courts consider whether t he judge engaged in action normally performed by a judge, and whether the partie s dealt with the judge in her judicial capacity. 758 In Pierson v. Ray, 759 the Court held that the judicial functions of determining guilt and sentencing a cri minal defendant are protected by absolute immunity.760 Judicial immunity was dee med proper for two reasons: the common law of 1871 (when the original version of 1983 was enacted) supported the immunity, and the policy behind 1983 was not to deter judges from performing their jobs. The Court stated: [Judicial immunity] is not for the protection or benefit of a malicious or corrup t judge, but for the benefit of the public, whose interest it is that 757. Stump, 435 U.S. at 356. 758. Mireles, 502 U.S. at 12 (judge who ordered bai liff to use excessive force to bring attorney to courtroom performed judicial act); Stump, 435 U.S. at 362 (acts are judicial even though informal and irregular, e.g., no docket number, no filing w ith clerks office, and no notice to minor who was subject to sterilization order) . See also Sibley v. Lando, 437 F.3d 1067, 1070 (11th Cir. 2005) (Whether a judges actions were made while acting in his judicial capacity depends on whether: (1) the act complained of constituted a normal judicial function; (2) the events oc curred in the judges chambers or in open court; (3) the controversy involved a ca se pending before the judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity.); Lowe v. Lestinger, 772 F.2d 308, 312 (7th Cir. 1985) (to determine whether act is judicial, courts examine (1) whe ther act is purely ministerial or requires exercise of discretion; (2) whether i t is type of action normally performed by judge; and (3) the expectations of the parties, i.e., whether the parties dealt with the judge as judge). Examples of Ju dicial Acts: Brookings v. Clunk, 389 F.3d 614, 622 (6th Cir. 2004) (state judge w as engaged in a judicial act in swearing out a criminal complaint against [defen dant] upon learning that he had committed a crime in his court); Barrett v. Harri ngton, 130 F.3d 246, 260 (6th Cir. 1997) (a judge instigating a criminal investig ation against a disgruntled litigant who has harassed her is a judicial act); Mar tinez v. Winner, 771 F.2d 424, 43435 (10th Cir. 1985) (holding that installations of courtroom cameras was a judicial act; judge was both entitled and required t o take steps to prevent criminal conduct in his courthouse). Examples of Nonjudi cial Acts: Archie v. Lanier, 95 F.3d 438, 441 (6th Cir. 1996) (holding that stalk ing and sexually assaulting a person, no matter the circumstances, do not consti tute judicial acts); Zarcone v. Perry, 572 F.2d 52, 53 (2d Cir. 1978) (ordering cof fee vendor handcuffed and subjecting him to pseudo-official inquisition because ju dge did not like his coffee are not judicial acts), cert. denied, 439 U.S. 1072 (1979). 759. 386 U.S. 547 (1967). 760. Id. at 55355. 132

XIV. Personal Capacity Claims: Absolute Immunities the judges should be at liberty to exercise their functions with independence an d without fear of consequences. It is a judges duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that ar ouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidat ion.761 In short, absolute immunity is necessary to protect the judicial system. The rem edy for judicial errors is an appeal, not a 1983 lawsuit for damages. The Suprem e Court has had to define the boundaries of judicial actions. In Stump v. Sparkman , 762 the Court held that Judge Harold D. Stump had performed a judicial act whe n he ordered a mentally retarded girl to undergo a tubal ligation at the request of her mother.763 The Court explained that absolute immunity applies to actions taken by judges in error, . . . maliciously, or . . . in excess of [their] autho rity, but not in the clear absence of all jurisdiction. 764 To distinguish between these two standards, the Court provided an example: [I]f a probate judge, with jurisdiction over only wills and estates should try a criminal case, he would be acting in the clear absence of jurisdiction. . . . [ O]n the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction.76 5 Furthermore, an action can be judicial even if it lacks the formality often asso ciated with court proceedings; the question is whether the action is one normall y performed by a judge. For example, in Stump, the Court recognized absolute imm unity for the judges act of ordering a tubal ligation, even though there had been no docket number, no filing with the clerks office, and no notice to the minor. Similarly, in Mireles v. Waco,766 the Court determined that a judge had performe d a judicial act in ordering a bailiff to use excessive force to compel an 761. 762. 763. 764. 765. 766. Id. at 55354 (quoting Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868)). 435 U.S. 349, 36064 (1978). Id. at 364. Id. at 35657. Id. 502 U.S. 9 (1991). 133

Section 1983 Litigation attorney to attend court proceedings because directing officers to bring counsel to court for a pending case is a function normally performed by a judge. 767 Ev en though judges do not have the authority to order police officers to commit ba ttery, they have broad authority to maintain court proceedings. A judge is prote cted only by qualified immunity when carrying out administrative functions. In F orrester v. White,768 the Supreme Court held that when a judge fired a probation officer, he performed an administrative act and was thus protected only by qual ified immunity.769 The Court rejected the argument that judges should have absol ute immunity for employment decisions because an incompetent employee can impair the judges ability to make sound judicial decisions. The Court reasoned that emp loyment decisions made by judges cannot meaningfully be distinguished from employm ent decisions made by district attorneys and other executive officials, and no on e claims they give rise to absolute immunity from liability in damages under 198 3.770 Judicial immunity is primarily at issue when the plaintiff seeks monetary r elief against a state court judge. In Pulliam v. Allen, 771 the Supreme Court he ld that judicial immunity did not encompass claims for prospective relief and at torneys fees against a judge in her judicial capacity. The Federal Court Improvem ents Act of 1996 amended 1983 and its attorneys fees provision, 42 U.S.C. 1983(b) , to provide that injunctive relief and 1988 fees generally may not be granted a gainst a judicial officer. Section 1983 was amended to provide that injunctive re lief shall not be granted in a 1983 action against a judicial officer for an act o r omission taken in such officers judicial capacity . . . unless a declaratory de cree was violated or declaratory relief was unavailable. Section 1988(b) was amen ded to provide that attorneys fees may not be awarded against a judicial officer based on conduct in a judicial capacity, unless the officers conduct was in clear excess of the officers jurisdiction. 767. 768. 769. 770. 771. Id. at 13. 484 U.S. 219 (1988). Id. at 230. Id. at 229. 466 U.S. 522 (1984). 134

XIV. Personal Capacity Claims: Absolute Immunities In some circumstances, administrative hearing officers may claim absolute quasijudicial immunity. Whether absolute immunity is appropriate depends primarily on whether the hearing officer is politically independent and if the hearing affor ds sufficient procedural safeguards to ensure that the administrative process fa irly resembles the judicial process. 772 On the other hand, court reporters may not assert absolute immunity because they do not engage in the kind of discretio nary decision making or exercise of judgment protected by judicial immunity.773 Circuit court authority holds that judicial law clerks may claim absolute immuni ty where they are performing discretionary acts of a judicial nature. 774 C. Prosecutorial Immunity Prosecutors are absolutely immune when acting as an advocate for the state by en gaging in conduct that is intimately associated with the judicial phase of the cr iminal process. 775 Supreme Court decisional law 772. Compare Butz v. Economou, 438 U.S. 478, 51214 (1978) (holding that federal h earing officers are entitled to assert absolute immunity), with Cleavinger v. Sa xner, 474 U.S. 193, 20406 (1985) (finding that prison officials who held discipli nary hearings were not entitled to claim absolute immunity because of a lack of independence and insufficient procedural safeguards). In Cleavinger, the Court h eld that a committee of prison officials did not perform a judicial act in decid ing to discipline a prisoner after a hearing. Noting that the committee members were not administrative law judges, the Court characterized them as employees tem porarily diverted from their usual duties. Similarly, in Wood v. Strickland, 420 U.S. 308, 320 (1975), the Court held that absolute immunity was not necessary to protect school board members ability to exercise discretion in deciding how to d iscipline students. The First Circuit held that in determining whether an offici al is entitled to absolute judicial immunity, courts should engage in the follow ing analysis: First, does a Board member, like a judge, perform a traditional adjudicatory funct ion, in that he decides facts, applies law, and otherwise resolves disputes on t he merits (free from direct political influence)? Second, does a board member, l ike a judge, decide cases sufficiently controversial that, in the absence of abs olute immunity, he would be subject to numerous damages actions? Third, does a B oard member, like a judge, adjudicate disputes against a backdrop of multiple sa feguards designed to protect [the parties] constitutional rights? Bettencourt v. Bd. of Registration, 904 F.2d 772, 783 (1st Cir. 1990), quoted in Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006). 773. Antoine v. Byers & Anderson, 508 U.S. 429, 43637 (1993). 774. Oliva v. Heller, 839 F.2d 37, 3940 (2d Cir. 1988), cert. denied, 519 U.S. 1118 (1997). Accord Moore v. Brewster, 96 F.3 d 1240 (9th Cir. 1996). 775. Imbler v. Pachtman, 424 U.S. 409, 43031 (1976). 135

Section 1983 Litigation holds that acts undertaken by a prosecutor in preparing for the initiation of jud icial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protection of absolute immunity. 776 Prosecutors are not absolutely immune for administrative actions or investigativ e functions not related to trial preparation. Prosecutorial immunity does protec t the prosecutor even if she acted with an improper state of mind or improper mot ive.777 Further, a prosecutor is absolutely immune from a civil conspiracy charge when his alleged participation in the conspiracy consists of otherwise immune ac ts. 778 In Imbler v. Pachtman, 779 the Court held that a prosecutor was entitled to absolute immunity for initiating a prosecution and in presenting the States cas e. 780 The Court found that the immunity protected even the knowing use of false testimony at trial and deliberate suppression of exculpatory evidence. 781 The C ourt granted absolute immunity after considering two issues: (1) the availabilit y of immunity at common law and (2) whether absolute immunity would undermine th e goals of 1983. At common law, prosecutors had immunity from suits based on mal icious prosecution and defamation. In addition, the Court reasoned that immunity properly shields prosecutors from suits by disgruntled criminal defendants and protects their ability to act decisively, results consistent with the goals of 1 983. The Court found, on the one hand, that qualified immunity would not adequat ely protect prosecutors and, on the other hand, that the remedies of professiona l self-discipline and criminal sanctions would serve as adequate checks on the b road discretion of prosecutors. 782 Prosecutors are absolutely immune to carry o ut such advocacy actions as 776. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 777. Shmueli v. City of N ew York, 424 F.3d 231, 237 (2d Cir. 2005) (citing Bernard v. County of Suffolk, 356 F.3d 495 (2d Cir. 2004)). 778. Reasonover v. St. Louis Co unty, 447 F.3d 569, 580 (8th Cir. 2006). 779. 424 U.S. 409 (1976). 780. Id. at 4 31. 781. Id. 782. Id. at 43031. 136

XIV. Personal Capacity Claims: Absolute Immunities deciding whether to prosecute; engaging in pretrial litigation activities concer ning applications for arrest and search warrants, bail applications, and suppres sion motions; preparing for trial, including interviewing witnesses and evaluati ng evidence; introducing evidence; and plea bargaining.783 Prosecutors, however, may not claim absolute immunity for investigative and administrative functions not related to trial preparation. 784 Thus, prosecutors may assert only qualifie d immunity for such administrative and investigative functions as holding a pres s conference; 785 engaging in investigative activity prior to the establishment of probable cause to arrest; and786 providing the police with legal advice durin g the investigative phase. 787 Courts must draw fine distinctions in determining whether the prosecutors actions should be characterized as advocacy, or as inves tigative or administrative.788 In Burns v. Reed,789 the 1983 complaint challenge d (1) the prosecutors misleading presentation of a police officers testi783. See 1A Martin A Schwartz, Section 1983 Litigation: Claims and Defenses 9.03 [B] (4th ed. 2005). It should be noted that while a 1983 malicious prosecution c laim against a prosecutor would be barred by absolute prosecutorial immunity, su ch a claim may be assertable against a law enforcement officer who influenced a prosecutor to initiate a prosecution. Hartman v. Moore, 547 U.S. 250, 26566 (2006 ). See supra Part IV.G. 784. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). 7 85. Id. at 27778. 786. Id. 787. Burns v. Reed, 500 U.S. 478, 49296 (1991). 788. Bu ckley, 509 U.S. at 273 (There is a difference between the advocates role in evalua ting evidence and interviewing witnesses as he prepares for trial, on the one ha nd, and the detectives role in searching for the clues and corroboration that mig ht give him probable cause to recommend that a suspect be arrested, on the other hand. When a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that , for the same act, immunity should protect the one and not the other. (quoting Ha mpton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917 (1974))). 789. 500 U.S. 478 (1991). 137

Section 1983 Litigation mony at a probable cause hearing for the issuance of a search warrant, and (2) t he prosecutors legal advice to police officers about the use of hypnosis as an in vestigative tool and the existence of probable cause to arrest the plaintiff.790 The Supreme Court held that the prosecutor had absolute immunity for his partic ipation at the probable cause hearing,791 but only qualified immunity for his le gal advice to the police. 792 The Court reasoned that absolute immunity is neces sary only when there is interference with . . . conduct closely related to the ju dicial process. 793 While the prosecutor at the hearing acted as an advocate for t he state 794 and his appearance was intimately associated with the judicial phase of the criminal process, 795 advising the police in the investigative phase was dee med too remote from the judicial process. 796 Moreover, it would be incongruous to afford prosecutors absolute immunity from liability for giving advice to the pol ice, but to allow police officers only qualified immunity for following the advi ce. 797 The Supreme Court reiterated the importance of linking the challenged act ion to the judicial process in Buckley v. Fitzsimmons. 798 The Court held that t he prosecutor did not have absolute immunity for two challenged actions: (1) con spiring to manufacture false evidence that would link [the plaintiffs] boot with t he boot print the murderer left on the front door, and (2) conducting a press con ference defaming the plaintiff shortly before the defendants election and the gra nd jurys indictment of the plaintiff.799 In neither instance did the prosecutor a ct as an advocate for the state.800 The Buckley Court attempted to create a bright line for distinguishing prosecutorial acts from investigative acts by holding t hat a prosecu790. 791. 792. 793. 794. 795. 796. 797. 798. 799. 800. Id. at 487. Id. at 492. Id. at 496. Id. at 494. Id. at 491. Id. at 492. Id. at 4 93. Id. at 495 (emphasis added). 509 U.S. 259, 27071 (1993). Id. at 27277. Id. at 27478. 138

XIV. Personal Capacity Claims: Absolute Immunities tors advocacy starts when he has probable cause to make an arrest.801 The Court, ho wever, narrowed this rule by stating that the presence or absence of probable ca use is not dispositive of the issue of absolute immunity; even after a prosecuto r has probable cause, he may perform investigative work protected only by qualif ied immunity.802 In Buckley, the prosecutor did not have probable cause to arres t the plaintiff before he allegedly manufactured false evidence and thus was not entitled to absolute immunity. With respect to the defamatory press conference, the Court found that even if media relations is an important part of a prosecut ors job, it is not functionally tied to the judicial process. In Kalina v. Fletch er, 803 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 ab solute immunity. Instead, the Court focused on whether the prosecutor had filed sworn or unsworn pleadings. The Court held that the prosecutor had absolute immu nity for filing two unsworn pleadingsan information and a motion for an arrest wa rrant, because these were advocacy functionsbut not for the act of personally vou ching for the truthfulness of facts set forth in a document called a Certificatio n for Determination of Probable Cause, because this was akin to the traditional f unction of a complaining witness. The Court refused to extend absolute immunity to a prosecutors witness-like act because it interpreted the common law as not pr oviding this type of broad immunity.804 The decisional law thus draws some very fine distinctions between prosecutorial actions protected by absolute immunity b ecause they resemble advocacy, and prosecutorial actions that are not protected by absolute immunity because they are investigative or administrative in nature. A useful rule of thumb is that [t]he more distant a function is from the judicia l process, the less likely absolute immunity will attach. 805 Id. at 274. Id. at 274 n.5. 522 U.S. 118 (1997). As discussed in the next sectio n concerning witness immunity, complaining witnesses are not protected by absolu te immunity. 805. Snell v. Tunnell, 920 F.2d 673, 687 (10th Cir. 1990). 801. 802. 803. 804. 139

Section 1983 Litigation D. Witness Immunity In Briscoe v. LaHue,806 the Supreme Court held that witnesses, including police officers who testify in judicial proceedings, are protected by absolute immunity , even if the witness gave perjured testimony. The Court reasoned that denying a bsolute immunity might make some witnesses reluctant to testify or cause them to distort their testimony for fear of liability. 807 It found that [s]ubjecting . . . police officers to damages liability under 1983 for their testimony might un dermine not only their contribution to the judicial process but also the effecti ve performance of their other public duties. 808 Complaining witnesses, however, are not protected by absolute immunity.809 [T]he term complaining witness is someth ing of a misnomer, as the complainant need not testify as a witness so long as h e played a significant role in initiating or procuring the prosecution. 810 E. Legislative Immunity State and local legislators enjoy absolute immunity for their legislative acts.8 11 Under the functional approach to immunities, the critical issue is whether th e official was engaged in legislative activity.812 The determination of an acts l egislative or executive character turns on the nature of the act, rather than on the motive or intent of the official per460 U.S. 325 (1983). Id. at 333. Id. at 343. See Kalina v. Fletcher, 522 U.S. 11 8, 127 (1997); Malley v. Briggs, 475 U.S. 335, 340 (1986); Cervantes v. Jones, 1 88 F.3d 805, 80910 (7th Cir. 1999), cert. denied, 528 U.S. 1154 (2000); White v. Frank, 855 F.2d 956, 961 (2d Cir. 1988). 810. Cervantes, 188 F.3d at 810 (citati on omitted). 811. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); Tenney v. Brand hove, 341 U.S. 367, 377 (1951). 812. See, e.g., Bogan, 523 U.S. at 55 (city coun cil member who introduced budget eliminating plaintiffs employment position and m ayor who signed bill into law were protected by absolute immunity); Sup. Ct. of Va. v. Consumers Union of the U.S., 446 U.S. 719, 734 (1980) (state judges promul gation of attorney professional responsibility rules was protected by absolute i mmunity); Tenney, 341 U.S. at 377 (legislators who carried out a legislative inv estigation were protected by absolute immunity because investigations, whether by standing or special committees, are an established part of representative gover nment). 806. 807. 808. 809. 140

XIV. Personal Capacity Claims: Absolute Immunities forming it.813 Legislative action involves the formulation of policy, while execu tive action enforces and applies the policy in particular circumstances. 814 In Bogan v. Scott-Harris, 815 the Supreme Court held that local legislators are ent itled to absolute immunity for their legislative activities. 816 The common law afforded local legislators absolute immunity and, under the functional approach, local legislators are engaged in the same types of activities as their state co unterparts. The Court thus unanimously extended absolute immunity to a city coun cil member and mayor whose challenged actions were promulgating a new city budge t and signing a law that eliminated the plaintiffs position after she complained about racial epithets in the workplace. The decision in Bogan demonstrates (1) t hat an official who is not a legislative official, such as the mayor, may be pro tected by absolute legislative immunity if her conduct was an integral step in t he legislative process; 817 and (2) that an official who engages in legislative action may be protected by absolute immunity even if the legislative acts affect ed only one individual. 818 In Lake Country Estates, Inc. v. Tahoe Regional Plan ning Agency, 819 the Supreme Court determined that a decision by the Tahoe Regio nal Planning Agency (TRPA) regarding land use was a legislative act. TRPA was an agency created by the states of California and Nevada, with the approval of Con gress, for the purpose of creating a regional plan for land use, transportation, conservation, recreation, and public services. 820 The Court held that absolute i mmunity applied to the [individual] members of the TRPA acting in a legislative c apacity, even 813. Bogan, 523 U.S. at 54. See also Torress-Rivera v. Calderon-Serra, 412 F.3d 205, 213 14 (1st Cir. 2005) (governors signing of bill into law was protected by a bsolute immunity, regardless of his motive or intent). 814. See 1A Martin A. Sch wartz, Section 1983 Litigation: Claims and Defenses 9.08[B][5] (4th ed. 2005). 8 15. 523 U.S. 44 (1998). 816. Id. at 4849 (noting that absolute legislative immuni ty is fully applicable to local legislators). 817. Id. at 55. 818. Id. 819. 440 U. S. 391 (1979). 820. Id. at 394. 141

Section 1983 Litigation though there was no common-law immunity for such an entity and even though all t he members of the agency were appointed, not elected. In Supreme Court of Virgin ia v. Consumers Union of the United States,821 the U.S. Supreme Court determined that the justices of the Virginia Supreme Court had performed a legislative act in promulgating professional responsibility rules for attorneys.822 The Supreme Court stated that the Virginia court had exercised the States entire legislative power with respect to regulating the bar, and its members are the States legislat ors for the purpose of issuing the rules. 823 By focusing on the action performed , not the job description of the actor, the Court emphasized the functional natu re of absolute immunity. Unlike most common-law immunities, legislative immunity is not limited to monetary relief; it also encompasses injunctive and declarato ry relief. 824 446 U.S. 719 (1980). Id. at 73134. Id. at 734. Id. at 732; Scott v. Taylor, 405 F .3d 1251, 1257 (11th Cir. 2005); Star Distrib. Ltd. v. Marino, 613 F.2d 4, 6 (2d Cir. 1980). 821. 822. 823. 824. 142

XV. Personal Liability: Qualified Immunity XV. Personal Liability: Qualified Immunity Qualified immunity may well be the most important issue in 1983 litigation. It i s very frequently asserted as a defense to 1983 personal capacity claims for dam ages. 825 Furthermore, courts decide a high percentage of 1983 personal capacity claims for damages in favor of the defendant on the basis of qualified immunity . The Supreme Court holds that qualified immunity is not just immunity from liab ility, but also immunity from suit, that is, from the burdens of having to defend the litigation. 826 Qualified immunity protects an executive official who violat ed the plaintiffs federally protected right so long as the official did not viola te clearly established federal law. Therefore, when qualified immunity is assert ed as a defense, the critical issue is whether the defendant official violated f ederal law that was clearly established at the time she acted. 827 That the offi cial may have violated clearly established state law is generally irrelevant.828 Qualified immunity protects officials who acted in an objectively reasonable ma nner. An official who violated clearly established federal law did not act in an objectively reasonable manner, while an official who violated federal law, but not clearly established federal law, did act in an objectively reasonable manner .829 The officials subjective moti825. Qualified immunity is not applicable to cl aims for injunctive relief. Behrens v. Pelletier, 516 U.S. 299, 312 (1996). 826. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accord Saucier v. Katz, 533 U.S. 194, 20001 (2001). 827. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Groh v. Ramirez, 540 U.S. 551 , 563 (2004); Hope v. Pelzer, 536 U.S. 730, 739 (2002); Saucier, 533 U.S. at 201 ; Wilson v. Layne, 526 U.S. 603, 609 (1999); Hunter v. Bryant, 502 U.S. 224, 227 (1991); Anderson v. Creighton, 483 U.S. 635, 63839 (1987); Malley v. Briggs, 475 U.S. 335, 34445 (1986); Davis v. Scherer, 468 U.S. 183, 19091 (1984). Several of the Supreme Court qualified immunity decisions are in Bivens actions. The same q ualified immunity analysis applies in 1983 suits and Bivens suits. Wilson, 526 U .S. at 609; Davis, 468 U.S. at 194. 828. Davis, 468 U.S. at 191. 829. Although t he courts have articulated a variety of two- and three-part qualified immunity t ests, the authors believe that the essential qualified immunity question is whet her the officer violated clearly established federal law. 1A Schwartz, supra not e 814, 9A.04. See, e.g., Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007) (three-part test); Causey v. City of Bay City, 443 F.3d 524, 528 n.2 (6th Cir. 2006) (obser ving that Sixth Circuit employs 143

Section 1983 Litigation vation is irrelevant to the qualified immunity defense but may be relevant to th e constitutional claim asserted.830 The Supreme Court has described the qualifie d immunity test as a fair warning standardthat is, if the federal law was clearly e stablished, the official is on notice that violation of the federal law may lead to personal monetary liability.831 Under qualified immunity, public officials ar e not liable for bad guesses in gray areas; they are liable for transgressing br ight lines. 832 In Saucier v. Katz,833 the Supreme Court stressed that qualified immunity protects an officers reasonable mistakes about what the law requires. In Hope v. Pelzer,834 the Court held that, under the particular circumstances, the defendant prison officials cuffing an inmate to a hitching post for a lengthy pe riod of time while shirtless in the hot Alabama sun violated clearly established Eighth Amendment standards. It found that the Eleventh Circuit had erred in app lying a rigid rule that for the federal law to be clearly established the facts of the existing precedent must be materially similar to the facts of the instant c ase. [O]fficials can still be on notice that their conduct violates established l aw even in novel factual circumstances. 835 The Court found that the defendants i n Hope had fair warning that their conduct was unconstitutional from (1) the rea soning of Eleventh Circuit precedent, although this precedent was not factually on all fours; (2) a regulation of the state Department of Corrections relating t o use of the hitching posta regulation that had been ignored by prison officials; and (3) a Department of Justice (DOJ) transmittal to the State Department of Co rrections advising it that its use of the hitching post was unconstitutional. both two- and three-part tests); Frederick v. Morse, 439 F.3d 1114, 112223 (9th C ir. 2006) (three-part test); Borges-Colon v. Roman Abreu, 438 F.3d 1, 1819 (1st C ir. 2006) (threepart test); Wilson v. Flynn, 429 F.2d 465, 467 (4th Cir. 2005) ( two-part approach); Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005) (thr ee-step approach). For a cogent criticism of multi-part tests, see Walczyk, 496 F.3d at 16571 (Sotomayor, J., concurring). 830. Crawford-El v. Britton, 523 U.S. 574, 588 (1998). 831. Hope v. Pelzer, 536 U.S. 730, 741 (2002); United States v. Lanier, 520 U.S. 259, 270 (1997). 832. Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Accord Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005); L ittrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004). 833. 533 U.S. 194, 205 ( 2001). 834. 536 U.S. 730 (2002). 835. Id. at 741. 144

XV. Personal Liability: Qualified Immunity The Supreme Court relied on this last factor, even though the record did not sho w that DOJs position had been communicated to the defendant state officials. 836 A. Who May Assert Qualified Immunity? State and local officials who carry out executive and administrative functions m ay assert qualified immunity.837 So far the Supreme Court has not allowed privat e party state actors to assert qualified immunity. In Richardson v. McKnight,838 the Supreme Court held that private prison guards are not entitled to assert qu alified immunity. In Wyatt v. Cole, 839 the Court held that a creditor who emplo yed a state replevin procedure could not assert qualified immunity. However, in Richardson and Wyatt the Court left open whether the defendants in those cases w ere entitled to assert a good-faith defense. Some lower courts have allowed a pr ivate party state actor defendant to assert a good-faith defense that implicates the defendants subjective intent.840 The Court in Richardson and Wyatt did not r esolve whether private party state actors who carry out public functions, such a s mental 836. The fact that an official claims to have acted on advice of counsel or purs uant to orders of a superior normally will not protect the official if he violat ed clearly established federal law. See 1A Schwartz, supra note 814, 9A. See, e. g., Lawrence v. Reed, 406 F.3d 1224, 123031 (10th Cir. 2005). However, in some ci rcumstances, official conduct pursuant to advice of counsel may render the offic ials conduct objectively reasonable and, therefore, protected by qualified immuni ty. See, e.g., Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227, 236 (1st C ir. 2007) (while acknowledging that acting on advice of counsel alone will not p rovide protection under qualified immunity, court ruled that defendants were pro tected by qualified immunity because their reliance on advice of government coun sel, which they were required to follow, was not unreasonable). An official who acted pursuant to a presumptively constitutional state statute will very likely be protected by qualified immunity. See, e.g., Connecticut v. Crotty, 346 F.3d 8 4, 104 (2d Cir. 2003). 837. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 197 (20 04); Groh v. Ramirez, 540 U.S. 551, 563 (2004); Saucier, 533 U.S. at 20001; Ander son v. Creighton, 483 U.S. 635, 638 (1987); Malley v. Briggs, 475 U.S. 335, 340 (1986). 838. 521 U.S. 399 (1997). 839. 504 U.S. 158 (1992). 840. See Vector Rese arch, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 699 (6th Cir. 1996); Jordan v. Fox, Rothschild, OBrien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994); W yatt v. Cole, 994 F.2d 1113, 1118 (5th Cir.), cert. denied, 510 U.S. 977 (1993). 145

Section 1983 Litigation evaluations or civil commitments, may assert qualified immunity.841 An important factor may be whether the defendant acted under government supervision. In Rich ardson, the Court regarded the lack of government supervision over the private p rison guards as an important factor justifying denial of the right to assert qua lified immunity. B. Clearly Established Federal Law Normally, a controlling precedent of the Supreme Court, the particular circuit, or the highest court in the state is necessary to clearly establish federal law. The right must be clearly established in a fairly particularized . . . sense: the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified imm unity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent .842 841. For post-Richardson decisions, compare, e.g., Burke v. Town of Walpole, 405 F.3d 66, 88 (1st Cir. 2005) (forensic odontologist retained by district attorne ys office to evaluate bite-mark evidence as part of criminal investigation was en gaged in state action and entitled to assert qualified immunity), and Camilo-Rob les v. Hoyos, 151 F.3d 1, 10 (1st Cir. 1998) (psychiatrists under contract with state to assist police department in evaluating police officers entitled to asse rt qualified immunity because they performed necessary function within police de partment), cert. denied, 525 U.S. 1105 (1999), with Jensen v. Lane County, 222 F .3d 570, 577 (9th Cir. 2000) (private physician who provided services to county relating to civil commitment not entitled to assert qualified immunity), and Hal vorsen v. Baird, 146 F.3d 680, 685 (9th Cir. 1998) (private not-for-profit organ ization providing municipality with involuntary commitment services for inebriat es not entitled to assert qualified immunity; fact that organization was not for profit was not a sufficient basis for distinguishing Richardson). The Second Ci rcuit held that a private defendant who conspired with government officials is n ot entitled to assert qualified immunity. Toussie v. Powell, 323 F.3d 178, 182 83 (2d Cir. 2003). For pre-Richardson decisions allowing the private party defenda nt to assert qualified immunity, see Young v. Murphy, 90 F.3d 1225, 1234 (7th Ci r. 1996) (private doctor hired by county to evaluate individuals mental competenc y); Sherman v. Four County Counseling Center, 987 F.2d 397, 403 (7th Cir. 1993) (private hospital that accepted and treated mental patients pursuant to court or der). See 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 9. 15 (4th ed. 2005). 842. Anderson v. Creighton, 483 U.S. 635, 640 (1987). See als o Saucier v. Katz, 533 U.S. 194, 201 (2001) (qualified immunity analysis must be undertaken in light of the specific 146

XV. Personal Liability: Qualified Immunity For federal law to be clearly established, there must be fairly close factual co rrespondence between the prior precedents and the case at hand.843 Federal law i s less likely to be clearly established when it depends on an ad hoc balancing o f competing interests between the state and the individual.844 Decisions from ou tside the controlling jurisdiction do not clearly establish federal law absent a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful. 845 In some cases, the federal la w might be clearly established even in the absence of controlling precedent. For example, the type of conduct engaged in by the defendant may be so obviously un constitutional that there was no need to litigate the issue previously.846 On th e other hand, a conflict in the lower courts is a strong indicator that federal law was not clearly established. 847 1. Application of Qualified Immunity to Fou rth Amendment Claims The qualified immunity objective reasonableness defense appli es even to Fourth Amendment challenges to arrests and searches where the constit utional standard itself is objective reasonableness. 848 In Malley v. Briggs, 84 9 the Court held that police officers who executed an invalid arrest warrant may nevertheless assert the defense of qualified immunity.850 The Court recognized two standards of reasonableness: conduct unreasonable under the Fourth Amendment could context of the case, not as a broad general proposition). Accord Brosseau v. Haug en, 543 U.S. 194, 198 (2004). 843. Anderson, 483 U.S. at 640. However, the facts of the existing precedent need not be materially similar to those of the instant case. Hope v. Pelzer, 536 U.S. 730, 739 (2002). The issue is necessarily a quest ion of degree. 844. See Dorheim v. Sholes, 430 F.3d 919, 926 (8th Cir. 2005) (ne ed to weigh competing interests makes it difficult for plaintiff to overcome a qu alified immunity defense in the context of a child abuse investigation); Manzano v. S.D. Dept of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (same). 845. Wilson v. Layne, 526 U.S. 603, 617 (1999). 846. See Wilson, 526 U.S. at 62021 (Stevens, J., dissenting). See also Hope v. Pelzer, 536 U.S. 730, 741 (2002). 847. Wilson , 526 U.S. at 617. 848. Anderson v. Creighton, 483 U.S. 635, 64345 (1987); Malley v. Briggs, 475 U.S. 335, 34445 (1986). 849. 475 U.S. 335 (1986). 850. Id. at 3434 6. 147

Section 1983 Litigation still be objectively reasonable for the purpose of qualified immunity.851 It not ed that it had similarly recognized two standards of reasonableness when creatin g the objective good-faith exception to the exclusionary rule. 852 Under that ex ception, even if officers obtained evidence by committing an unreasonable search or seizure in violation of the Fourth Amendment, the evidence could nevertheles s be used in the case in chief if the officers acted in objective good-faith relia nce on a search warrant. This objective good-faith standard asks whether a reason ably well-trained officer with a reasonable knowledge of what the law prohibits wou ld have known that the challenged action violated the Fourth Amendment.853 In An derson v. Creighton, 854 the Supreme Court affirmed this dual standard of reason ableness as it addressed whether police officers could assert qualified immunity for a warrantless search of the plaintiffs home. The Court conceded that the gen eral principles of the Fourth Amendment are clear: a warrantless search of an in dividuals home, absent probable cause and exigent circumstances, is unreasonable. It explained, however, that these general principles did not determine whether the officers were protected by qualified immunity. Whether the officers violated clearly established law requires consideration of the contours of a [constitutiona l] right. 855 The proper inquiry is whether the contours of the right were suffici ently clear that a reasonable official would understand that what he [did] viola te[d] that right. 856 The Anderson Court gave little guidance as to how to assess the contours of a right. It stated that a police officer may reasonably, 851. Id. at 34445. 852. Id. at 344 (citing United States v. Leon, 468 U.S. 897 (1 984) (objective reasonableness is standard for search pursuant to invalid search warrant)). 853. Unite d States v. Leon, 468 U.S. 897 (1984). 854. 483 U.S. 635, 63641 (1987). 855. Id. at 640. 856. Id. The Supreme Court adhered to this approach in its later per cur iam decision, Hunter v. Bryant, 502 U.S. 224 (1991). In Hunter, the Court explai ned that the proper inquiry is whether the officials acted reasonably under settl ed law in the circumstances, not whether another, or more reasonable interpretat ion of events can be constructed. Hunter, 502 U.S. at 228. 148

XV. Personal Liability: Qualified Immunity but mistakenly, conclude that probable cause is present. 857 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, qualifie d immunity protects the officer.858 The decision further states, [T]he very actio n in question, [however, need not have] been previously held unlawful, but if in t he light of preexisting law the unlawfulness [was] apparent, then qualified immun ity does not apply. 859 Similarly, in Saucier v. Katz,860 the Supreme Court held that the qualified immunity objective reasonableness test applies to Fourth Ame ndment excessive force arrest claims that are governed by the Graham v. Connor86 1 objective reasonableness standard.862 The Court in Saucier ruled that the pert inent qualified immunity inquiry is whether the officer reasonably, though mista kenly, believed that his use of force complied with the Fourth Amendment. In oth er words, the critical issue is whether the officer made a reasonable mistake ab out the state of the law. Applying qualified immunity to Fourth Amendment consti tutional claims governed by an objective reasonableness standard gives the offic ial two layers of reasonableness protection, one under the amendment itself, and another under qualified immunity. This can lead to the awkward conclusion that an official acted in a reasonable manner for immunity purposes though unreasonab ly for constitutional purposes. 863 Courts typically try to avoid this linguisti c awkwardness of an official acting reasonably unreasonably by asking whether the official had arguable probable cause, or whether the officer reasonably believed there was probable cause, or whether a reasonable officer could have mistakenly concluded there was probable cause. 864 So, too, in Anderson, 483 U.S. at 641. Id. Id. at 640. 533 U.S. 194 (2001). 490 U.S. 386 (19 89). Brosseau v. Haugen, 543 U.S. 194, 19899 (2004); Saucier, 533 U.S. at 20102. S aucier, 533 U.S. at 203; Anderson, 483 U.S. at 643. See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991). See Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (arguable probable cause does not mean almost probable 857. 858. 859. 860. 861. 862. 863. 864. 149

Section 1983 Litigation Fourth Amendment excessive force cases, courts inquire whether the officer reaso nably, though mistakenly, believed that his use of force was constitutional. 865 2. Intent or Motive as Element of Constitutional Claims There is a potential te nsion between a constitutional claim, which implicates the defendants subjective intent, such as a free speech retaliation claim, and qualified immunity, which i s an objective reasonableness standard under which the defendants subjective inte nt is irrelevant. The Supreme Court, in Crawford-El v. Britton, 866 held that wh en the constitutional claim implicates the defendant officials subjective intent, the lower courts should follow the Federal Rules of Civil Procedure and not pla ce special burdens on plaintiffs who are faced with summary judgment qualified i mmunity motions. The Court in Crawford-El said that the federal courts should no t rewrite the Federal Rules of Civil Procedure, that placing unduly harsh burden s on plaintiffs may rob meritorious claims of their fair day in court, and that existing pleading, motion, and discovery rules, and the Prison Litigation Reform Act, adequately protect defendants against insubstantial constitutional claims. C. Procedural Aspects of Qualified Immunity Qualified immunity is an affirmative defense that the defendant has the burden o f pleading.867 Although failure to raise qualified immunity can operate to waive the defense, federal courts have generally been reluctant to find the defense w aived. 868 The great weight of lower court authority rejects a heightened pleadi ng requirement for 1983 personal capacity claims subject to cause; essential inquiry is whether it was objectively reasonable to conclude th ere was probable cause). 865. Saucier, 533 U.S. at 205. 866. 523 U.S. 574 (1998) . 867. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Accord Crawford-El, 523 U.S. a t 586; Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U. S. 800, 815 (1982); Thomas v. Independence Twp., 463 F.3d 285, 293 (3d Cir. 2006 ). See Fed. R. Civ. P. 8(C) (affirmative defense must be raised in the answer). The plaintiff does not have the burden of pleading facts relevant to the qualifi ed immunity defense. Thomas, 463 F.3d at 29294. 868. 1A Martin A. Schwartz, Secti on 1983 Litigation: Claims and Defenses 9A.14[C][b] (4th ed. 2005). 150

XV. Personal Liability: Qualified Immunity qualified immunity.869 The courts of appeals disagree somewhat on the burden of persuasion. The prevailing view is that once the defendant properly raises quali fied immunity, the plaintiff has the burden of overcoming the immunity by showin g that the defendant violated the plaintiffs clearly established federal right.87 0 However, the Second Circuit places the burden of persuasion on the defendant.8 71 Qualified immunity is normally raised on a motion for summary judgment, somet imes on a motion to dismiss, and sometimes on a Rule 50 motion for judgment as a matter of law.872 In addition, courts may consider renewed motions for qualifie d immunity. These motions may occur after the plaintiff has presented her case, at the close of both sides, after the jurys special verdict, or in a motion for a new trial. 873 Resolution is possible during these trial stages if the defendan t is entitled to judgment as a matter of law. Qualified immunity may be raised o n a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted. 874 On a Rule 12(b)(6) motion, the district court assumes the plaintiffs factual allegations are true and deter mines whether the allegations state a claim for relief. A Rule 12(b)(6) motion 869. See supra Part II.C. 870. See, e.g., Roska v. Sneddon, 437 F.3d 964, 971 (1 0th Cir. 2006) (To overcome a qualified immunity defense, a plaintiff must first establish a violation of a co nstitutional or statutory right and then show that the right was clearly establi shed.); Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006) (when defense o f qualified immunity is raised, plaintiff bears burden of proving that defendant official is not entitled to qualified immunity defense); McClendon v. City of C olumbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc) (When a defendant invokes qu alified immunity, the burden is on the plaintiff to demonstrate the inapplicabil ity of the defense.); Hicks v. Feeney, 850 F.2d 152, 159 (2d Cir. 1988) (qualifie d immunity is affirmative defense that defendant has burden to plead and prove). See also Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (once the defen dant establishes that he was acting within his discretionary authority, the burd en shifts to the plaintiff to show that qualified immunity is not appropriate). 8 71. Lee v. Sandberg, 136 F.3d 94, 101 (2d Cir. 1997); Varrone v. Bilotti, 123 F. 3d 75, 78 (2d Cir. 1997) (Since qualified immunity is an affirmative defense, the defendants bear the burden of showing that the challenged act was objectively r easonable in light of the law existing at that time.); In re State Police Litig., 88 F.3d 111, 123 (2d Cir. 1996). 872. Qualified immunity has been asserted most frequently on summary judgment. 873. See, e.g., Warlik v. Cross, 969 F.2d 303, 306 (7th Cir. 1992). 874. See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004 ); Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997). 151

Section 1983 Litigation to dismiss based on qualified immunity should be granted unless the complaint st ates facts showing that the defendant violated the plaintiffs clearly established federal right.875 1. Qualified Immunity Summary Judgment Motions Before and Aft er Discovery The Supreme Courts goal in defining qualified immunity in wholly obj ective terms is to enable the district courts to resolve qualified immunity, to the greatest extent possible, as a matter of law, pretrial and even pre-discover y. 876 In Hunter v. Bryant, 877 the Supreme Court held that qualified [i]mmunity ordinarily should be decided by the court long before trial. 878 The Court critic ized the lower court for routinely plac[ing] [qualified] immunity in the hands of the jury. 879 Officials may raise the qualified immunity defense in summary judg ment motions under Federal Rule of Civil Procedure 56(c) both before 880 and aft er discovery. 881 Under Rule 56(c), summary judgment is permitted if there are n o disputed material facts and the defendant is entitled to judgment as a matter of federal law.882 Summary judgment qualified immunity motions before discovery may be appropriate in some circumstances because qualified immunity is not only a defense to liability but also an immunity from suit. 883 Under Harlow v. Fitzger ald,884 discovery is not to occur if the plaintiff has not alleged a violation o f clearly established law. If, however, the plaintiff has alleged a violation of clearly established federal law, and the defendant alleges actions that a reaso nable officer could have 875. Williams, 102 F.3d at 1182. 876. See Hunter v. Bryant, 502 U.S. 224, 22728 ( 1991). See also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). 877. 502 U.S. 224 (1991). 878. Id. at 228. 879. Id . Accord Anderson, 483 U.S. at 646 n.6. 880. Anderson, 483 U.S. at 646 n.6; Harl ow v. Fitzgerald, 457 U.S. 800, 81819 (1982). 881. Behrens v. Pelletier, 516 U.S. 299, 31213 (1996). 882. See also id. at 306 (Unless the plaintiffs allegations sta te a claim of violation of clearly established law, a defendant pleading qualifi ed immunity is entitled to dismissal before the commencement of discovery. (inter nal quotation marks and citation omitted)). 883. Mitchell v. Forsyth, 472 U.S. 5 11, 526 (1985) (plurality opinion). 884. 457 U.S. 800, 818 (1982). 152

XV. Personal Liability: Qualified Immunity thought were lawful, then courts must grant discovery tailored to the immunity q uestion. 885 When responding to a summary judgment qualified immunity motion, a plaintiff seeking discovery must file an affidavit with a Rule 56(f) motion demo nstrating how discovery will enable [him] to rebut a defendants showing of objecti ve reasonableness or . . . demonstrate a connection between the information he w ould seek in discovery and the validity of the defendants qualified immunity asse rtion. 886 In Crawford-El v. Britton, 887 the Supreme Court described various opt ions that the district court can invoke when facts concerning the defendants alle ged retaliatory motive are in dispute: 1. allow the plaintiff to take a focused d eposition of the defendant on the issue of retaliatory motive; 2. allow discovery only on historical facts before allowing discovery on the defendants motive; and 3 . order the plaintiff to file a reply or grant the defendants motion for a more d efinite statement requiring specific factual allegations of defendants conduct an d motive before allowing any discovery.888 Under Federal Rule of Civil Procedure 26, district courts may limit the number of depositions and interrogatories, th e length of depositions, the time, place, and manner of discovery, and the sequenc e of discovery. 889 District courts may also limit discovery to an issue that 885. Anderson, 483 U.S. at 646 n.6. 886. Lewis v. City of Fort Collins, 903 F.2d 752, 758 (10th Cir. 1990) (quotation omitted). See Fed. R. Civ. P. 56(f). 887. 523 U.S. 574 (1998). 888. See also Iqbal v . Hasty, 490 F.3d 143, 158 (2d Cir. 2007), cert. granted, 128 S. Ct. (2008) (Biv ens claim). 889. Crawford-El v. Britton, 523 U.S. 574, 599 (1998). In Iqbal, the Second Circuit ruled that even if the complaint survives a motion to dismiss, t he district court, in order to protect officials asserting qualified immunity, m ay exercise discretion to permit some limited and tightly controlled reciprocal discovery so that a def endant may probe for amplification of a plaintiffs claims and a plaintiff may pro be such matters as a defendants knowledge of relevant facts and personal involvem ent in challenged conduct. . . . [A] district court might wish to structure such limited discovery by examining written responses to interrogatories and request s to admit before authorizing depositions, and by deferring discovery directed t o high-level officials until discovery of front-line officials has been complete d and has demonstrated the need for discovery higher up the ranks. Iqbal, 490 F.3d at 158 (Bivens claim). 153

Section 1983 Litigation may resolve the lawsuit before allowing discovery as to an officials intent. For example, an official may move for partial summary judgment on objective issues th at are potentially dispositive and are more amenable to summary disposition than disputes about the officials intent, which frequently turn on credibility assess ments.890 In contrast, Federal Rule of Civil Procedure 56(f) gives district court s discretion to postpone deciding an officials motion for summary judgment if dis covery is necessary to establish facts essential to justify the [plaintiffs] oppos ition. 891 In addition, district courts can safeguard officials right to be free f rom frivolous lawsuits by imposing sanctions under Federal Rule of Civil Procedu re 11 or granting dismissal under 28 U.S.C. 1915(e)(2), a statute permitting dis missal of frivolous or malicious in forma pauperis suits.892 In short, district co urts have broad discretion in the management of the factfinding process. 893 Altho ugh material facts are disputed in many cases in which qualified immunity is ass erted, summary judgment would be possible if, interpreting the facts in the ligh t most favorable to the plaintiff, the district court determines that these fact s do not state a violation of clearly established federal law.894 In this situat ion, the immunity defense relieves officials from the burdens of trial, protecti ng their immunity from suit. 895 If, however, the facts as interpreted in the ligh t most favorable to the plaintiff indicate a violation of clearly established fe deral law, and the discovery indicates material facts are in dispute, then summa ry judgment is not possible. At this point, the immunity from suit is properly los t and the case must go to trial. 2. Role of Judge and Jury Supreme Court decisio ns state that, whenever possible, the issue of qualified immunity should be deci ded pretrial and even prediscovery, 890. 891. 892. 893. 894. 895. Crawford-El, 523 U.S. at 599. Id. at 599 n.20. Id. at 600 (quoting 28 U.S.C. 191 5(e)(2) (Supp. 1998)). Id. at 601. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). 154

XV. Personal Liability: Qualified Immunity normally on a motion for summary judgment. 896 When qualified immunity cannot be decided on a motion for summary judgment because facts relevant to qualified im munity are in dispute, it may be proper for the district court to submit the fac tual issues and the immunity defense to the jury under proper instructions that (1) tell the jury what the clearly established federal law is and (2) describe t he nature of qualified immunity; or, alternatively, the court may submit the fac tual issues that are material to qualified immunity to the jury by special verdi cts, while reserving for itself the power to determine the immunity defense in l ight of the jurys responses to the special verdicts. Most courts have chosen this second option because it seems to best reflect the jurys function as finder of f act and the courts expertise in determining the law.897 Under this approach, the defendant official is not entitled to a jury instruction regarding qualified immu nity, since it is a legal question for the court to decide. 898 3. Court Should F irst Decide Constitutional Issue Supreme Court decisional law holds that when qu alified immunity is asserted as a defense, the court must first determine if the complaint 896. See Hunter v. Bryant, 502 U.S. 224, 228 (1991). See also Mitchell, 472 U.S. at 526; Harlow v. Fitzgerald, 457 U.S. 800, 81718 (1982). 897. See, e.g., Curley v. Klem, 499 F.3d 199, 21115 (3d Cir. 2007); Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005); Littrell v. Franklin, 388 F.3d 578, 58485 (8th Cir. 2004); Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004); Stephenson v . Doe, 332 F.3d 68, 8081 (2d Cir. 2003); Johnson v. Breeden, 280 F.3d 1308, 1319 (11th Cir. 2002). But see McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000) (jury may decide qualified immunity defense); Presley v. City of Benbrook, 4 F.3 d 405, 409 (5th Cir. 1993) (same). See also Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (citations omitted): Once the jury has resolved any disputed facts that are material to the qualified immunity issue, the ultimate determination of whether the officers conduct was o bjectively reasonable is to be made by the court. . . . To the extent that a par ticular finding of fact is essential to a determination by the court that the de fendant is entitled to qualified immunity, it is the responsibility of the defen dant to request that the jury be asked the pertinent question. If the defendant does not make such a request, he is not entitled to have the court, in lieu of t he jury, make the needed factual finding. 898. Rodriguez-Marin v. Rivera-Gonzales, 438 F.3d 72, 83 (1st Cir. 2006). Accord Curley, 499 F.3d at 215 (qualified immunity focuses on established legal standar ds and requires a review of relevant case law, a review a jury simply cannot mak e). 155

Section 1983 Litigation states a violation of a federally protected right.899 The rationale for this met hodology is that if courts always examined qualified immunity first, it would be hard for constitutional standards to develop. Deciding the constitutional questi on before addressing the qualified immunity question . . . promotes clarity in t he legal standards for official conduct. 900 D. Qualified Immunity Appeals When the district court denies qualified immunity on a summary judgment motion, the defendant may take an immediate appeal from the denial of qualified immunity to the court of appeals if the immunity appeal can be decided as a matter of la w.901 However, it is not always clear whether a qualified immunity appeal presen ts an issue of law or fact. If the district court denies a defendants summary jud gment qualified immunity motion because there are disputed issues of material fa ct, the defendant may not take an immediate appeal that contests the district co urts factual determinations. 902 However, even when the district court denies a s ummary judgment qualified immunity motion on the ground that there are disputed issues of material fact, the defendant may take an immediate appeal if the appea l can be decided as a matter of law. Thus, an immediate qualified immunity appea l lies when the appellant: 1. contests the materiality of a disputed issue of fa ct found by the district court; or 899. Harris, 127 S. Ct. at 1774; Hope v. Pelzer, 536 U.S. 730, 736 (2002); Sauci er v. Katz, 533 U.S. 194, 201 (2001); Wilson v. Layne, 526 U.S. 603, 609 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999); County of Sacramento v. Lewis, 523 U .S. 833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 231 (1991). 900. Wilso n, 526 U.S. at 604. See also Saucier, 533 U.S. at 201. Nevertheless, some courts at times prefer to reach the immunity issue first. See, e.g., Brosseau v. Hauge n, 543 U.S. 194, 197200 (2004); Horne v. Coughlin, 191 F.3d 244, 24550 (2d Cir. 19 99); Harris, 127 S. Ct. at 1774 n.4 (There has been doubt expressed regarding the wisdom of Sauciers decision to make the threshold inquiry mandatory . . . .) (cit ing authorities). The Supreme Court may reexamine the issue. Pearson v. Callahan , 128 S. Ct. 1702 (2008). 901. Behrens v. Pelletier, 516 U.S. 299, 313 (1996); J ohnson v. Jones, 515 U.S. 304, 311 (1995); Mitchell v. Forsyth, 472 U.S. 511, 52 627 (1985). The jurisdictional basis for this appeal is 28 U.S.C. 1291, which pro vides that the courts of appeal . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States. 902. Johnson, 515 U .S. at 313. 156

XV. Personal Liability: Qualified Immunity 2. claims entitlement to qualified immunity even on the basis of the facts alleg ed by the plaintiff. Furthermore, an immediate appeal may be taken from the deni al of qualified immunity raised on a motion to dismiss, because in this circumst ance the appeal presents an issue of law, namely whether, assuming the facts all eged by the plaintiff to be true, the defendant is entitled to qualified immunit y.903 The courts of appeals at times find that they have jurisdiction over parts of an immunity appeal raising questions of law, though not over other parts rai sing questions of fact. A 1983 defendant may be entitled to take multiple interl ocutory qualified immunity appeals. In Behrens v. Pelletier,904 the Supreme Cour t held that the defendant may take an immediate appeal from the denial of qualif ied immunity raised on a motion to dismiss and, if still unsuccessful, from a su bsequent denial of qualified immunity raised on summary judgment, provided the s ummary judgment immunity appeal can be decided as a matter of law. Qualified imm unity appeals are very costly to civil rights plaintiffs in terms of litigation resources and delay of litigation. Qualified immunity appeals normally stay proc eedings on the 1983 claim in the district court.905 However, the plaintiff may a sk the district court to certify that an interlocutory qualified immunity appeal is frivolous. 906 This practice . . . enables the district court to retain juris diction pending summary disposition of the appeal and thereby minimizes disrupti on of the ongoing proceedings. 907 See, e.g., McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). 516 U.S. 299, 30 607 (1996). Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). Behrens, 516 U.S. at 31011; Chan v. Wodnicki, 67 F.3d 137, 139 (7th Cir. 1995); Yates v. City of Cleveland, 941 F.2d 444, 448 (6th Cir. 1991); Apostol, 870 F.2d at 1339. 907 . Behrens, 516 U.S. at 31011. The circuit court also determines whether it has ju risdiction after the district court has determined the appeal to be frivolous. S ee, e.g., Dickerson v. McClellan, 37 F.3d 251, 252 (8th Cir. 1994). 903. 904. 905. 906. 157

Section 1983 Litigation XVI. Exhaustion of State Remedies A. State Judicial Remedies: ParrattHudson Doctrine State judicial remedies generally need not be exhausted in order to bring a 1983 action. The federal [ 1983] remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. 90 8 When a 1983 plaintiff has pursued a state judicial remedy, or was an involunta ry state court litigant (such as a criminal defendant), the state court judgment may be entitled to preclusive effect in the 1983 action. 909 Under the ParrattHu dson 910 doctrine, when a deprivation of liberty or property results from random and unauthorized official conduct, the availability of an adequate post-deprivati on judicial remedy satisfies procedural due process. 911 The ParrattHudson doctri ne does not apply when the deprivation results from enforcement of the establish ed state procedure 912 or from actions by officials with authority to both cause deprivations and provide predeprivation process. 913 ParrattHudson is not an exh austion doctrine: When the ParrattHudson doctrine is applicable, it results in re jection of procedural due process claims on the merits, not for failure to exhau st. A post-deprivation remedy may be adequate under ParrattHudson even if it does not afford all of the relief available under 1983, such as an award of attorney s fees. 914 B. Preiser, Heck, and Beyond In Preiser v. Rodriguez,915 the Supreme Court held that a prisoners constitutiona l claim that challenges the fact or duration of her confinement and seeks immedi ate or speedier release must be brought under federal habeas corpus, following e xhaustion of state remedies, even though 908. Monroe v. Pape, 365 U.S. 167, 183 (1961). 909. See infra Part XVII. 910. Hu dson v. Palmer, 468 U.S. 517, 532 (1984); Parratt v. Taylor, 451 U.S. 527, 541 (1981). 911. 912. 913. 914. 915. See supra Part IV.C.5. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 (1982). Z inermon v. Burch, 494 U.S. 113, 13536 (1990). Parratt, 451 U.S. at 544. 411 U.S. 475, 48990 (1973). 158

XVI. Exhaustion of State Remedies such a claim may come within the literal terms of 1983. In these circumstances, federal habeas corpus is the exclusive remedy. The Court in Preiser reasoned tha t the more specific federal habeas remedy should prevail over the more general 1 983 remedy, and that prisoners should not be allowed to evade the federal habeas exhaustion requirement by filing the claim under 1983. The decision in Preiser, however, does not preclude prisoners from utilizing 1983 either to challenge th e conditions of their confinement or to enforce procedural due process protectio ns. In Wilkinson v. Dotson, 916 the Supreme Court held that the prisoners challen ge to parole release procedures may be asserted under 1983 because the prisoners sought only enhanced process; they did not challenge either the fact or length of their confinement and did not seek immediate or speedier release from confine ment. If successful, the plaintiffs, at most, could obtain new parole release he arings. In Nelson v. Campbell, 917 the Supreme Court held that a death row inmat e may assert a 1983 challenge to the constitutionality of a medical procedure th at would have been a precursor to his lethal injection. The Court viewed the cla im as a condition of confinement medical treatment claim.918 It did not decide whe ther a challenge to the method of execution itself, e.g., lethal injection, may be asserted under 1983. In Heck v. Humphrey, 919 the Supreme Court held that a 1 983 plaintiff who seeks damages on a 1983 claim that necessarily implicates the constitutionality of the claimants conviction or sentence must demonstrate that t he conviction or sentence has been overturned, either judicially or by executive order. Strictly speaking, Heck is not an exhaustion doctrine. In fact, the Heck doctrine is more onerous than an exhaustion requirement because, unless and unt il the conviction is overturned, the 1983 claim is not cognizable. Lower courts often have a difficult time determining whether a 1983 claim necessarily implicat es the validity of a conviction.920 The Heck doctrine has implica916. 544 U.S. 74 , 82 (2005). 917. 541 U.S. 637, 644 (2004). 918. See also Hill v. McDonough, 126 S. Ct. 2096, 2102 (2006) (constitutional challenge to three-drug sequence used to execute by lethal injection may be brought under 1983). 919. 512 U.S. 477, 48687 (1994). 920. See 1A Martin A. Schwartz, Section 1 983 Litigation: Claims and Defenses 10.06 (4th ed. 2005). 159

Section 1983 Litigation tions for the date of accrual for the purpose of the statute of limitations beca use a 1983 claim that necessarily implicates the validity of a conviction or sen tence is not cognizable and thus does not accrue until the conviction has been o verturned. In Wallace v. Kato,921 the Supreme Court indicated that whether a 198 3 claim attacks the validity of a conviction within the meaning of the Heck doct rine should be evaluated as of the date the 1983 claim accrued. In Wallace, the plaintiffs 1983 challenge to his warrantless arrest accrued on the date he was bo und over for trial, which was long before he was convicted. 922 On that date the re was obviously no conviction that could be attacked. In other words, as the Co urt in Wallace expressly acknowledged, the Heck doctrine does not encompass futu re convictions. The Court said that the impracticability of applying Heck to futur e convictions was obvious, i.e., it would invite speculation about whether there w ill be a conviction and, if so, whether the federal 1983 action would impugn the conviction. 923 In Edwards v. Balisok, 924 the Supreme Court held that the Prei ser Heck doctrine applies to prisoner procedural due process claims that necessar ily implicate the validity of a prison disciplinary sanction. On the other hand, in Muhammad v. Close, 925 the Supreme Court held that a prisoners challenge to s ome aspect of a prison disciplinary proceeding that does not implicate either th e finding of guilt or the disciplinary sanction is not governed by the Heck doctri ne. In Spencer v. Kemna, 926 five justices in concurring and dissenting opinions took the position that the Heck doctrine does not apply to 1983 claimants who a re not in state custody and who therefore cannot seek relief in a federal habeas corpus proceeding. The lower courts are in conflict over whether the positions of these five justices should be viewed as binding precedent.927 921. 922. 923. 924. 925. 926. 927. 127 S. Ct. 1091, 109798 (2007). See infra Part XVIII.C. Wallace, 127 S. Ct. at 10 9798. 520 U.S. 641, 645 (1997). 540 U.S. 749, 75455 (2004). 523 U.S. 1 (1998). See 1A Schwartz, supra note 920, 10.06[F]. 160

XVI. Exhaustion of State Remedies C. State Administrative Remedies; Prison Litigation Reform Act In Patsy v. Board of Regents, 928 the Supreme Court held that state administrati ve remedies need not be exhausted in order to bring suit under 1983. The Court r easoned that individuals should not have to seek relief from the state and local authorities against whom 1983 guarantees immediate judicial access. Nevertheles s, the Prison Litigation Reform Act (PLRA) requires prisoners to exhaust adminis trative remedies before bringing suit to contest the conditions of their confine ment.929 In Booth v. Churner, 930 the Supreme Court held that prisoners who seek money damages judicially must satisfy the PLRA exhaustion requirement even when the available administrative procedures do not afford a monetary remedy, so lon g as some type of relief is available administratively. In Porter v. Nussle, 931 the Supreme Court held that prisoner excessive force claims are challenges to c onditions of confinement and thus subject to the PLRA exhaustion requirement. Th e Court in Porter found that the PLRAs exhaustion requirement applies to all inmat e suits about prison life, whether they involve general circumstances or particu lar episodes, and whether they allege excessive force or some other wrong. 932 In Woodford v. Ngo, 933 the Supreme Court held that the PLRA exhaustion requiremen t is not satisfied by the filing of an untimely or otherwise procedurally defect ive administrative grievance. Rather, the PLRA requires proper exhaustion, i.e., t he claims must be in compliance with the agencys deadlines and other procedural r ules. The Court left open the possibility that there should be an exception for cases in which prisons might create procedural requirements for the purpose of tr ipping up all but the most skillful prisoners. 934 The Court 457 U.S. 496 (1982). 42 U.S.C. 1997e(a) (1996). 532 U.S. 731, 734 (2001). 534 U. S. 516 (2002). Id. at 532. 126 S. Ct. 2378 (2006). Id. at 239293. In some cases c ourts have held that the PLRA exhaustion requirement should not apply when the f ailure to exhaust was not the prisoners fault. For example, when a prison officia ls threats toward an inmate inhibit the inmates ability to pursue an administrativ e grievance procedure, the defendant should be estopped from 928. 929. 930. 931. 932. 933. 934. 161

Section 1983 Litigation also noted that the PLRA exhaustion requirement is not jurisdictional, and thus [ allows] a district court to dismiss plainly meritless claims without first addre ssing what may be a much more complex question, namely, whether the prisoner did in fact properly exhaust available administrative remedies. 935 When a prisoners 1983 complaint is dismissed for failure to satisfy the PLRA exhaustion requireme nt, dismissal should almost always be without prejudice so that it does not bar reinstatement after exhaustion is satisfied. 936 In Jones v. Bock,937 the Suprem e Court held that the plaintiff prisoner is not required to plead compliance wit h the PLRA exhaustion requirement. Rather, failure to exhaust is an affirmative defense. The Court also held that exhaustion is not per se inadequate merely bec ause a prison official, sued in the 1983 action, was not named in the administra tive grievance. The Court acknowledged, however, that under Woodford v. Ngo, pri soners must comply with the grievance procedures and that a grievance procedure may require the prisoner to name a particular official. The level of detail neces sary on a grievance to comply with the grievance procedure will vary from system to system and claim to claim, but it is the prisons requirements, and not the PL RA, that define the boundaries of proper exhaustion. 938 Finally, the Court held that the PLRA does not require dismissal of the entire action when the prisoner h as failed to exhaust some, but not all of the asserting failure to exhaust. Ziemba v. Wezner, 366 F.3d 161, 16364 (2d Cir. 2003 ). In addition, exhaustion is not required where administrative remedies are una vailable to an inmate for various reasons beyond the prisoners control. Giano v. Goard, 380 F.3d 670, 677 (2d Cir. 2004). 935. Woodford, 126 S. Ct. at 2392. 936. Ford v. Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (all dismissals under 1997(e) (a) should be without prejudice); Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 , 121213 (10th Cir. 2003); McKinney v. Carey, 311 F.3d 1198, 120001 (9th Cir. 2002 ); Wright v. Hollingsworth, 260 F.3d 357, 359 (5th Cir. 2001); Brown v. Tombs, 1 39 F.3d 1102, 1104 (6th Cir.), cert. denied, 523 U.S. 833 (1998). See also Burre ll v. Powers, 431 F.3d 282, 285 (7th Cir. 2005); Walker v. Thompson, 288 F.3d 10 05, 1009 (7th Cir. 2002) (dismissal for failure to comply with PLRA exhaustion r equirement is without prejudice and does not bar reinstatement of suit unless it is too late to exhaust). 937. 127 S. Ct. 910 (2007). 938. Id. at 923. 162

XVI. Exhaustion of State Remedies claims asserted in the complaint. 939 A total exhaustion rule could have the unwhol esome effect of inmates filing more separate lawsuits to avoid the possibility of an unexhausted claim, tainting the others. That would certainly not comport wit h the purpose of the PLRA to reduce the quantity of inmate suits. 940 D. Notice of Claim In Felder v. Casey, 941 the Supreme Court held state notice-of-claim rules may n ot be applied to 1983 claims. Because a notice-of-claim rule is not one of those universally recognized rules necessary for fair procedure, like a limitation de fense or a survivorship rule, the absence of a federal notice-of-claim rule is n ot a deficiency in the federal law requiring resort to state law under 42 U.S.C. 1 988(a). Furthermore, the Court found that state notice-of-claim rules unduly bur den and discriminate against civil rights claimants. However, it acknowledged th at state notice-of-claim rules may be applied to state law claims that are suppl emental to 1983 claims. E. Ripeness In Williamson County Regional Planning Commission v. Hamilton Bank,942 the Supre me Court imposed stringent two-prong ripeness requirements for 1983 regulatory t akings claims. First, Williamson requires that the 1983 takings plaintiff obtain a final determination from land use authorities concerning the permissible use of the property. This requirement is satisfied when the permissible uses of the property are known to a reasonable degree of certainty.943 The second Williamson ripeness prong requires the plaintiff to obtain a final determination from stat e court of the right to just compensation. When the 1983 takings claimant has pu rsued a claim for just compensation in state court in order to satisfy this seco nd requirement, normal preclusion principles will apply in the federal 1983 acti on.944 The interplay of 939. 940. 941. 942. 943. 944. Id. Id. at 925. 487 U.S. 131, 140 (1988). 473 U.S. 172, 186 (1985). Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001). San Remo Hotel v. San Francisco, 545 U. S. 323, 33738 (2005). 163

Section 1983 Litigation ripeness and preclusion is a potentially lethal catch-22 for 1983 takings claimant s. 164

XVII. Preclusion Defenses XVII. Preclusion Defenses A. State Court Judgments Under the full-faith and credit statute, 28 U.S.C. 1738, federal courts in 1983 actions must give state court judgments the same preclusive effect they would re ceive in state court under state law.945 This principle controls so long as the federal litigant against whom preclusion is asserted had a full and fair opportu nity to litigate his federal claims in state court. A full and fair opportunity to be heard requires only that state judicial procedures meet minimal procedural due process requirements.946 The full-faith and credit statute governs even wit h respect to federal claims asserted by involuntary state court litigants, like criminal defendants947 and takings claimants who were required to pursue a state court just-compensation remedy in order to satisfy ripeness requirements.948 Fu rthermore, the full-faith and credit statute governs even if the federal court 1 983 claimant has no alternative federal remedy, as when, under Stone v. Powell, 949 a Fourth Amendment claim is not assertable in a federal habeas corpus procee ding.950 The full-faith and credit statute applies even to claims that could hav e been, but were not, litigated in the state court proceeding, if state preclusi on law encompasses the doctrine of claim preclusion. 951 The Supreme Court has d irected the federal courts not to carve out exceptions to preclusion required by 1983, even when there may be good policy reasons for doing so. 952 945. Id.; Migra v. Warren City Sch. Dist., 465 U.S. 75, 81 (1984); Allen v. McCu rry, 449 U.S. 90, 9495 (1980). See also Haring v. Prosise, 462 U.S. 306, 31314 (19 83). 946. Kremer v. Chem. Constr. Corp., 456 U.S. 461, 48081 (1982); Allen, 449 U .S. at 95. 947. Allen, 449 U.S. at 10304. 948. San Remo Hotel v. San Francisco, 5 45 U.S. 323, 33738 (2005). 949. 428 U.S. 465, 48990 (1976). 950. Allen, 449 U.S. a t 10304. 951. Migra v. Warren City Sch. Dist., 465 U.S. 75, 8385 (1984). 952. San Remo Hotel, 545 U.S. at 335. 165

Section 1983 Litigation B. Administrative Res Judicata In University of Tennessee v. Elliott,953 the Supreme Court held that an agencys fact findings may preclude relitigation of the facts in a 1983 action. Under Ell iott, when a state agency acting in a judicial capacity . . . resolves disputed is sues of fact properly before it which the parties have had an adequate opportuni ty to litigate, . . . federal courts must give the agencys fact finding the same p reclusive effect to which it would be entitled in the States courts. 954 The decis ion in Elliott was not based on the full-faith and credit statute, but on federa l commonlaw preclusion principles. C. Arbitration Decisions In McDonald v. City of West Branch, 955 the Supreme Court held that arbitration decisions are not entitled to preclusive effect in 1983 actions. The Court found that an arbitration proceeding is not a judicial proceeding within the meaning of the full-faith and credit statute. Furthermore, Congress intended 1983 to be judicially enforced, and arbitration is not an adequate substitute for judicial enforcement. 953. 478 U.S. 788 (1986). 954. Id. at 799 (quoting United States v. Utah Constr. Mining Co., 384 U.S. 394, 422 (1966)). 955. 466 U.S. 284, 287 (1984). 166

XVIII. Statute of Limitations XVIII. Statute of Limitations A. Limitations Period There is no federal statute of limitations for 1983 claims. When federal law is silent on an issue in a federal 1983 action, 42 U.S.C. 1988(a) requires the fede ral court to borrow state law on the issue, provided it is consistent with the p olicies underlying 1983.956 Therefore, 1988(a) requires federal courts to borrow a states limitations period. In Wilson v. Garcia,957 the Supreme Court held that the federal court should borrow the states limitations period for personal injur y actions, so long as the period is not inconsistent with the policies of 1983. This means that the governing limitations period for federal 1983 actions may di ffer from state to state. A states unduly short limitations period, e.g., six mon ths, is inconsistent with the policies of 1983.958 [W]here state law provides mul tiple statutes of limitations for personal injury actions, courts . . . should b orrow the general or residual statute for personal injury actions. 959 B. Relation Back Whether an amended complaint relates back to the filing of the original complaint for limitations purposes is governed by Federal Rule of Civil Procedure 15(c). U nder Rule 15(c), the amended complaint will relate back to the filing of the ori ginal complaint if the claim in the amended complaint arose out of the same cond uct or transaction in the original complaint. If an amended complaint changes the 956. Because there is no federal survivorship law for 1983 claims, 1988(a) requi res federal courts to borrow state survivorship policy, so long as the state pol icy is not inconsistent with the policies of 1983. See infra Part XIX. However, 1988(a) does not allow federal courts to incorporate an entire state cause of ac tion into the 1983 action. Moor v. County of Alameda, 411 U.S. 693, 70304 (1973) (we do not believe that section [1988], without more, was meant to authorize the wholesale importation into federal law of state causes of action); Monell v. Dept of Soc. Servs., 436 U.S. 658, 701 n.66 (1978) (42 U.S.C. 1988 cannot be used to c reate a federal cause of action where 1983 does not otherwise provide one). 957. 471 U.S. 261, 265 (1985). 958. See Burnett v. Grattan, 468 U.S. 42, 4850 (1984). 959. Owens v. Okure, 488 U.S. 235, 236 (1989). A state-by-state table of limitat ions periods in 1983 actions is set forth in 1B Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 12.02[B] (4th ed. 2006). 167

Section 1983 Litigation party defendant, the amended complaint will relate back to the filing of the ori ginal complaint if the amended complaint arose out of the same conduct as the or iginal complaint; if the newly named defendant, within the period for service of the summons and complaint, received notice of the institution of the action tha t will avoid prejudice in defending the action; and the newly named defendant kne w or should have known that, but for a mistake concerning the identity of the pr oper party, the action would have been brought against the party. 960 Rule 15(c) provides that when, as in 1983 actions, state law governs the limitation period, a state law relation back doctrine that is more forgiving than Rule 15(c)s relation back doctrine will govern the issue. 961 Most courts hold that an amendment of a complaint substituting a John Doe defendant with the names of the actual office rs does not relate back to the filing of the original complaint.962 The rational e of these decisions is that lack of knowledge about the names of the alleged wr ongdoer defendants is not a mistake within the meaning of Rule 15(c).963 C. Accrual Unlike the selection of the limitations period, which is determined by reference to state law, the accrual of a 1983 claim is a question of federal law.964 Sect ion 1983 claims generally accrue when the plaintiff knows or has reason to know of the injury, which is the basis of her 960. Fed. R. Civ. P. 15(c)(3)(B). 961. See Advisory Committee note to 1991 amend ment to Fed. R. Civ. P. 15. 962. Garrett v. Fleming, 362 F.3d 692, 69697 (10th Ci r. 2004); Wayne v. Jarvis, 197 F.3d 1098, 110204 (11th Cir. 1999), cert. denied, 529 U.S. 1115 (2000); Jacobsen v. Os borne, 133 F.3d 315, 320 (5th Cir. 1998); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.), cert. denied, 519 U.S. 821 (1996); Barrow v. Wethersfield Police Dept, 66 F.3d 466, 468 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996); Worthingto n v. Wilson, 8 F.3d 1253, 125657 (7th Cir. 1993). 963. But see Singletary v. Pa. Dept of Corr., 266 F.3d 186, 19495 (3d Cir. 2001) (rejecting lack-of-mistake ratio nale, but denying relation back because newly named official had not received no tice of action within requisite time period). See also Goodman v. Praxair, Inc., 494 F.3d 458, 471 (4th Cir. 2007) (non- 1983) (dicta). 964. Wallace v. Kato, 127 S. Ct. 1091, 1095 (2007). 168

XVIII. Statute of Limitations claim. 965 In applying this standard, courts seek to determine what event should have alerted the typical lay person to protect his or her rights.966 In Wallace v . Kato, 967 the Supreme Court stated that a 1983 claim accrues when the plaintif f has a complete and present cause of action. 968 It is unclear whether this is th e same as the know or should know of the injury standard. In Heck v. Humphrey, 969 the Court held that a 1983 cause of action for damages attributable to an uncons titutional conviction or sentence does not accrue until the conviction or senten ce has been invalidated. The determination of the proper accrual date is not alwa ys obvious, especially when the Heck doctrine is at issue. In Wallace, the Court held that the 1983 plaintiffs Fourth Amendment challenge to his warrantless arre st accrued when legal process issued, i.e., when he appeared before the examinin g magistrate judge and was bound over for trial. Because there were a number of plausible accrual dates in Wallace, it is necessary to pay especially close atte ntion to the sequence of events. In January 1994, the Chicago police questioned Andre Wallace, then fifteen years of age, about a recent homicide. After an allnight interrogation lasting into the early morning hours, Wallace waived his Mir anda rights and confessed to the murder. He was arrested (without an arrest warr ant) sometime that day. Subsequentlywe are not told 965. See 1C Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 12. 04 (4th ed. 2006). See, e.g., Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 (1 st Cir. 1995) (section 1983 claims accrue when the plaintiff knows or has reason to know of the injury that is the basis of her claim); Harris v. Hegmann, 198 F .3d 153, 157 (5th Cir. 1999) ([A] 1983 action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis for the action.). 96 6. Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991). See also Wallace v. Kat o, 127 S. Ct. 1091, 1097 (2007) (claim accrues when wrongful act results in dama ges even if full extent of damages is not then known or predictable); United Sta tes v. Kubrick, 444 U.S. 111, 12122 (1979) (non- 1983) (patients medical malpractic e claim accrued when he was aware of his injury and its cause; accrual should not be further delayed until plaintiff learns of his legal rights regarding the clai m). 967. 127 S. Ct. 1091 (2007). 968. Id. at 1095 (quoting Bay Area Laundry & Dr y Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997), in turn quoting Rawlings v. Ray, 312 U.S. 96, 98 (1941)). 969. 512 U.S. 477, 48 990 (1994). See supra Part XVI.B. 169

Section 1983 Litigation exactly whenhe appeared before the examining magistrate judge and was bound over for trial. If the state wants to hold a suspect who was subject to a warrantless arrest, the Fourth Amendment requires a probable cause determination from a mag istrate judge within a reasonable time; forty-eight hours after the arrest is a presumptively reasonable time. 970 Prior to trial, Wallaces defense attorney unsu ccessfully sought to suppress Wallaces confession and other statements he gave th e police. Wallace was convicted of murder. But in 2001, the conviction was rever sed on appeal on the ground that Wallace was arrested without probable cause, an d his incriminating statements were the product of the illegal arrest. Although the state appeals court ordered a new trial, in 2002 the prosecutors dropped the charges against Wallace, and he was released. In 2003, seven years after his ar rest but only a year after the charges were dropped, Wallace filed a federal cou rt 1983 action asserting, inter alia, a claim for damages against several Chicag o police officers based on his illegal arrest. The parties agreed that the gover ning limitations period was the Illinois two-year personal injury period. But th ey sharply disagreed over when the limitations period began to run, i.e., when W allaces 1983 claim accrued. There were several possible accrual dates: 1. The dat e Wallace was arrested in 1994. This would render the 1983 claim untimely. 2. Th e date Wallace appeared before the magistrate judge. This, too, would render the 1983 action untimely because more than two years elapsed between that date and the filing of the 1983 suit, even leaving out of the count the period before [Wal lace] reached his majority. 971 3. The date (August 31, 2001) the appellate court reversed Wallaces conviction and remanded for a new trial, which would render th e 1983 claim timely. 970. City of Riverside v. McLaughlin, 500 U.S. 44 (1981); Gerstein v. Pugh, 420 U.S. 103 (1975). 971. Wallace, 127 S. Ct. at 1097. 170

XVIII. Statute of Limitations 4. The date (April 10, 2002) when prosecutors dropped the charges against Wallac e, which also would have rendered the 1983 suit timely. The Court held that Wall aces 1983 claim accrued on the date he appeared before the magistrate judge and w as bound over for trial, rendering the 1983 action untimely. Although the plaint iffs 1983 claim was premised upon a violation of Fourth Amendment rights, the Sup reme Court relied heavily on common-law concepts governing false arrest, false i mprisonment, and malicious prosecution. The Court said that the plaintiff could h ave filed suit as soon as the alleged wrongful arrest occurred, subjecting him t o the harm of involuntary detention. 972 Since the plaintiff had a complete cause o f action on the date of his arrest, the limitations period would normally commenc e to run from that date. 973 There was a refinement, however, stemming from the com mon laws treatment of false arrest and false imprisonment. These two torts overla p in the sense that false arrest is a species of false imprisonment; every confine ment is an imprisonment. The Court found that the closest common-law analogy to Wallaces 1983 warrantless arrest/Fourth Amendment claim was false imprisonment ba sed on detention without legal process. 974 The common-law rule is that such a cla im for relief accrues when the false imprisonment comes to an end. Since false im prisonment consists of detention without legal process, a false imprisonment cla im accrues when the victim becomes held pursuant to such processwhen he is bound over by a magistrate or arraigned on charges. 975 The claim for relief accrues at this time even though the claim could have been filed at the earlier time of th e arrest. Furthermore, the claim accrues at this time even assuming . . . that al l damages for detention pursuant to legal process could be regarded as consequen tial damages attributable to the unlawful arrest. 976 Under the common law, after legal process is issued, any damages for unlawful detention would be based not on false arrest but on mali972. 973. 974. 975. 976. Id. at 1095 (emphasis added). Id. (emphasis added). Id. Id. at 1096. Id. at 1097 . The Court did not decide the damages issue. 171

Section 1983 Litigation cious prosecution. Malicious prosecution remedies detention accompanied, not by a bsence of legal process, but by wrongful institution of legal process. 977 The Co urt in Wallace rejected the plaintiffs argument that his false imprisonment ended and his claim accrued when the state dropped the criminal charges against him a nd he was released from custody. Rather, the false imprisonment ended much earli er when legal process was issued against Wallace, i.e., when he appeared before the examining magistrate judge. Holding firm to the common-law rule, the Court a lso rejected Wallaces argument that his release from custody should be the proper accrual date because, he argued, the unconstitutional arrest set the wheels in m otion, leading to the coerced confession, conviction, and incarceration. Wallace argued, again in vain, that under Heck his 1983 claim could not accrue until the state dropped the criminal charges against him. The Court found the Heck doctri ne inapplicable. It reasoned that on the date Wallace was held pursuant to legal process, there was no criminal conviction that the 1983 cause of action could i mpugn. Moreover, the Court held that the Heck doctrine does not extend to possib le future convictions. It stated that the impracticability of applying Heck to fut ure convictions is obvious, namely, it would invite speculation whether there will be a conviction and, if so, whether the pending federal 1983 action would impug n the conviction. 978 The decision in Wallace indicates that when there is more than one plausible accrual date, the Supreme Court appears inclined to pick the earlier date.979 This has also been true in 1983 public employment cases. In emp loyment termination cases, for example, the Supreme 977. Id. The Court did not resolve whether this damages principle governs damage s for a 1983 false arrest claim. Because Wallace did not assert a 1983 malicious prosecution claim, the Court did not analyze whether such a claim would have be en cognizable. 978. The Court said that should a 1983 Fourth Amendment false arr est claim be filed during the pendency of the criminal proceeding, which may be necessary for the claim to be timely, the federal court might choose to stay the 1983 suit under one of the abstention doctrines. If the plaintiff is ultimately convicted, and if the stayed suit would impugn that conviction, Heck will requir e dismissal; otherwise, the civil action will proceed, absent some other bar to suit. Wallace, 127 S. Ct. at 1098. 979. See generally 1B Martin A. Schwartz, Sect ion 1983 Litigation: Claims and Defenses 12.039[B], pp. 1242 (4th ed. 2006). 172

XVIII. Statute of Limitations Court held that the 1983 claim accrues when the employee is notified of the term ination, not when the termination became effective. 980 Federal courts have gene rally been reluctant to apply the continuing violation doctrine in 1983 actions. 981 In National Railroad Passengers Corp. v. Morgan, 982 a Title VII action, the Supreme Court held that a discrete act, such as employment termination, failure to promote, denial of transfer, refusal to hire, or a retaliatory adverse emplo yment decision, is a separate unlawful employment practice for accrual purposes. The Court ruled that the continuing evaluation doctrine does not apply to these discrete acts merely because they are plausibly or sufficiently related to each other. The Court distinguished these claims from racial or sexual hostile envir onment claims, which involve repeated conduct and the cumulative effect of conti nued acts. These claims are not time barred if the acts are part of the same unl awful employment practice and at least one act falls within the governing limita tions period. The courts of appeals have consistently applied Morgan to 1983 act ions. 983 D. Tolling The Supreme Court in Wallace v. Kato stated that in 1983 suits it has generally r eferred to state law for tolling rules . . . . 984 The Court found that Illinois tolling law did not provide for tolling during the pendency of the criminal proc eeding. The Court also rejected the dissents position that the limitations period should be equitably tolled during the pendency of the criminal proceedings and during any period in which the criminal defendant challenges the conviction in s tate 980. Chardon v. Fernandez, 454 U.S. 6, 8 (1981). 981. 1B Schwartz, supra note 97 9, 12.03[B][11]. See, e.g., Pike v. City of Mission, 731 F.2d 655, 660 (10th Cir. 1984) (en banc) (court declined to apply continuing vio lation doctrine because a plaintiff may not use the continuing violation theory t o challenge discrete actions that occurred outside the limitations period even t hough the impact of the acts continues to be felt). 982. 536 U.S. 101, 113 (2002) . 983. 1B Schwartz, supra note 979, 12.03[B]. 984. Wallace, 127 S. Ct. at 109899 (citing Hardin v. Straub, 490 U.S. 536, 53839 (1989); Bd. of Regents of Univ. of N.Y. v. Tomanio, 446 U.S. 478, 48486 (1980)). Federal courts borrow state tolling rules unless the state rule is inconsistent with the policies of 1983. 1B Schwa rtz, supra note 979, 12.05. 173

Section 1983 Litigation court on the same basis as that underlying the 1983 suit. The majority reminded the dissent that [e]quitable tolling is a rare remedy to be applied in unusual ci rcumstances, not a cure-all for an entirely common state of affairs. 985 In other words, it is fairly common for a 1983 action to relate to pending criminal proc eedings. 985. Wallace, 127 S. Ct. at 109899. 174

XIX. Survivorship and Wrongful Death XIX. Survivorship and Wrongful Death A. Survivorship Survivorship of 1983 claims is not covered by federal law. In Robertson v. Wegma nn, 986 the Supreme Court held that to remedy this deficiency in federal law, 42 U.S.C. 1988(a) requires federal courts to borrow state survivorship law, so lon g as the state survivorship policy is not inconsistent with the policies of 1983 . The Court in Robertson ruled that the mere fact that the particular 1983 plain tiffs claim abates under state law does not mean that the state law is inconsiste nt with the policies of 1983. Rather, whether state survivorship law is compatib le with the policies of 1983 depends on whether that state law is generally hosp itable to the survival of 1983 claims.987 The Court in Robertson held that the L ouisiana law was not inconsistent with the policies of 1983 despite causing the particular 1983 claim to abate. However, it indicated that the result might be d ifferent where the deprivation of federal right caused death. 988 B. Wrongful Death The Supreme Court has not resolved whether a wrongful death claim may be brought under 1983. There is considerable disagreement on this issue in the lower court s.989 For example, some courts have viewed the absence of a federal 1983 wrongfu l death policy as a deficiency in federal law and, under 42 U.S.C. 1988(a), have borrowed state wrongful death law.990 Other courts have inquired whether the de fendants conduct, which caused a death, violated the constitutionally protected r ights of a surviving relative.991 There is also scholarship supporting the 986. 436 U.S. 584, 590 (1978). 987. See, e.g., Banks v. Yokemick, 177 F. Supp. 2 d 239, 24950 (S.D.N.Y. 2001) (New York survivorship law, which denies recovery for loss of enjoyment of life, is i nconsistent with 1983 policies of compensation and deterrence). 988. Robertson, 436 U.S. at 594. 989. See Carringer v. Rodgers, 331 F.3d 844, 850 n.9 (11th Cir. 2003) (the right to wrongful death recovery under 1983 has generated considerabl e debate amongst our sister circuits). 990. See, e.g., Brazier v. Cherry, 293 F.2 d 401, 40406 (5th Cir. 1961). 991. See, e.g., Trujillo v. Bd. of County Commrs, 76 8 F.2d 1186, 118990 (10th Cir. 1985). 175

Section 1983 Litigation argument that 1983 itself authorizes a wrongful death remedy. 992 Of course, the 1983 plaintiff may attempt to assert a state law wrongful death claim under the federal courts supplemental jurisdiction. 992. See Steven H. Steinglass, Wrongful Death Actions and Section 1983, 60 Ind. L.J. 559 (1985). The various 1983 wrongful death theories are discussed in 1B Ma rtin A. Schwartz, Section 1983 Litigation: Claims and Defenses 13.0313.07 (4th ed. 2006). 176

XX. Abstention Doctrines XX. Abstention Doctrines Even though a federal court has subject-matter jurisdiction over a 1983 action, the court may decline to exercise that jurisdiction if the case falls within one or more of the abstention doctrines. These are intended to be narrow doctrines. The Supreme Court has described a federal courts obligation to adjudicate claims properly within its jurisdiction as virtually unflagging. 993 Accordingly, [a]bste ntion from the exercise of federal jurisdiction is the exception, not the rule, 9 94 and the Court has limited the circumstances appropriate for abstention. The m ajor abstention doctrines in 1983 actions are Pullman, 995 Younger,996 Colorado River, 997 and Burford.998 The domestic relations doctrine has been raised in so me 1983 actions, but much less frequently than the other abstention doctrines. T he Tax Injunction Act normally bars federal 1983 actions contesting state and lo cal tax policies. 999 A. Pullman Abstention Under Pullman abstention, named after Railroad Commission of Texas v. Pullman Co ., 1000 a federal court may abstain when the contested state law is ambiguous an d susceptible to a state court interpretation that may avoid or modify the feder al constitutional issue. The Supreme Court said that when a federal constitutiona l claim is premised on an unsettled question of state law, the federal court sho uld 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 unnecessaril y deciding a constitutional question. 1001 Pullman abstention is applicable only when the issue of state law is unsettled and is sufficiently likely 993. See, e.g., Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976). 994. Colorado River, 424 U.S. at 813. 995. R.R. Commn of Tex. v. Pullman Co., 312 U.S. 496 (1941). 996. Younger v. Harris, 401 U.S. 37 (1971) . 997. Colorado River, 424 U.S. 800. 998. Burford v. Sun Oil Co., 319 U.S. 315 ( 1943). 999. 28 U.S.C. 1341 (2006). 1000. 312 U.S. 496 (1941). 1001. Harris Count y Commrs Court v. Moore, 420 U.S. 77, 83 (1975) (interpreting Pullman). 177

Section 1983 Litigation to be subject to an interpretation that will avoid or modify the federal constit utional question.1002 When a federal court invokes Pullman abstention, the 1983 claimant must seek a state court interpretation of the state law from the highes t court in the state. In some cases this may be accomplished expeditiously pursu ant to a state certification procedure. 1003 In Arizonans for Official English v . Arizona, 1004 the Supreme Court suggested that, where available, a state certi fication procedure should be used instead of Pullman abstention. State certifica tion procedures allow federal courts to directly certify unsettled, dispositive questions of state law to the highest court of the state for authoritative const ruction. The Court explained: Certification today covers territory once dominated by a deferral device called P ullman abstention . . . Designed to avoid federal-court error in deciding state-l aw 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 state-law question did not prove dispositive of th e case, the parties could return to the federal court for decision of the federa l issues. Attractive in theory because it placed state-law questions in courts e quipped to rule authoritatively on them, Pullman abstention proved protracted an d expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal court . . . Certif ication procedure, in contrast, allows a federal court faced with a novel statelaw question to put the question directly to the States highest court, reducing t he delay, cutting the cost, and increasing the assurance of gaining an authorita tive response.1005 After completion of state court proceedings, the 1983 claimant may return to fed eral court unless she has voluntarily litigated her federal claims fully in stat e court.1006 The plaintiff may make an England reservation on the state court reco rd of her right to litigate the federal claim in federal court.1007 1002. 1003. 1004. 1005. 1006. 1007. Lake Carriers Assn v. MacMullan, 406 U.S. 498, 512 (1972). See Arizonans for Offic ial English v. Arizona, 520 U.S. 43 (1997). Id. Id. at 7576. England v. La. State Bd. of Med. Examrs, 375 U.S. 411, 41516 (1964). Id. at 42122. 178

XX. Abstention Doctrines In England v. Louisiana State Board of Medical Examiners, 1008 the Court set out the procedures litigants must follow when Pullman abstention is invoked. A part y has the right to return to the district court for a final determination of its federal claim once the party has obtained the authoritative state court constru ction of the state law in question. 1009 A party can, but need not, expressly re serve this right, and in no event will the right be denied, unless it clearly app ears that he voluntarily . . . fully litigated his federal claim in the state co urts. 1010 A party may elect to forego the right to return to federal court by ch oosing to litigate the federal constitutional claim in state court.1011 Under Pu llman 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, bu t only the postponement of its exercise. 1012 B. Younger Abstention The most frequently invoked abstention doctrine in 1983 actions is Younger abste ntion, named after the leading case of Younger v. Harris. 1013 Younger abstentio n generally prohibits federal courts from granting relief that interferes with p ending state criminal prosecutions, or with pending state civil proceedings that implicate important state interests.1014 The Younger doctrine espouse[s] a stron g federal policy against federal-court interference with pending state judicial proceed375 U.S. 411 (1964). Id. at 417. Id. at 42122. Id. at 419. If a party so e lects, the Supreme Court has held that, even in 1983 cases, the sole fact that t he state courts decision may have been erroneous will not be sufficient to lift t he preclusion bar to relitigation of federal issues decided after a full and fai r hearing in state court. Allen v. McCurry, 449 U.S. 90, 101 (1980). 1012. Harri son v. NAACP, 360 U.S. 167, 177 (1959). 1013. 401 U.S. 37 (1971). 1014. Id. See also Pennzoil Co. v. Texaco Inc., 481 U.S. 1 (1987) (federal court may not inter fere with enforcement of state civil judgment); Moore v. Sims, 442 U.S. 415 (197 9) (child abuse proceedings); Trainor v. Hernandez, 431 U.S. 434 (1977) (attachm ent of welfare benefits allegedly obtained by fraud); Juidice v. Vail, 430 U.S. 327 (1977) (civil contempt proceeding); Huffman v. Pursue, Ltd., 420 U.S. 592 (1 975) (quasi-criminal nuisance proceeding to enjoin allegedly obscene movie). 1008. 1009. 1010. 1011. 179

Section 1983 Litigation ings. 1015 The doctrine is based primarily on principles of federalism that requi re federal court non-interference with state judicial proceedings. In Younger, t he Supreme Court held that a federal district court generally should not enjoin a pending state criminal prosecution. The Supreme Court, however, has substantia lly broadened the reach of Younger abstention. In Samuels v. Mackell, 1016 the C ourt held that the Younger doctrine encompasses claims for declaratory relief. T he Court stated that in federal cases where a state criminal prosecution had beg un prior to the federal suit, where an injunction would be impermissible under [Y ounger] principles, declaratory relief should ordinarily be denied as well. 1017 Although the Supreme Court has not directly addressed whether Younger applies wh en a federal plaintiff is seeking only monetary relief with respect to matters t hat are the subject of a 1015. Middlesex County Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 431 (1982). 1016. 401 U.S. 66 (1971). 1017. 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 prosecuti on is pending. Noting that the relevant principles of equity, comity, and federa lism 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 p rosecution is pending and a federal plaintiff demonstrates a genuine threat of e nforcement of a disputed state criminal statute. Steffel, 415 U.S. at 475. The ge nuine threat of enforcement would give the plaintiff standing to seek prospectiv e relief. See supra Part III. The Courts decision in Steffel, however, must be re ad 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 f ederal plaintiff after the federal complaint has been filed, but before any proce edings of substance on the merits have taken place in the federal court, the Youn ger doctrine applies in full force. Hicks, 422 U.S. at 349. The Court has held tha t the granting of preliminary injunctive relief (see Doran v. Salem Inn, Inc., 4 22 U.S. 922, 92728 (1975)) or permanent injunctive relief (see Wooley v. Maynard, 430 U.S. 705, 70910 (1977)) is not necessarily barred by Younger principles when no criminal proceeding is pending. 180

XX. Abstention Doctrines state criminal proceeding,1018 the Court has implied that Colorado River abstent ion (discussed infra) might be appropriate in such situations. 1019 In a number of decisions, beginning with Huffman v. Pursue, Ltd.,1020 the Court has extended the application of Younger to bar federal interference with various 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 t han are most civil cases, because the state was a party to the proceeding, and th e proceeding itself was in aid of and closely related to criminal statutes.1021 Thus, while refusing to make any general pronouncements as to Youngers applicabil ity to all civil litigation, the Court held that the district court should have applied Younger principles in deciding whether to enjoin the state civil nuisanc e proceeding.1022 1018. In Deakins v. Monaghan, 484 U.S. 193 (1988), the Court held that a distric t court has no discretion to dismiss rather than to stay claims for monetary reli ef that cannot be redressed in the state proceeding. Id. at 202. 1019. See Heck v . Humphrey, 512 U.S. 477, 487 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 paral lel statecourt proceedings. (citing Colorado River)). See also Wallace v. Kato, 1 27 S. Ct. 1091, 1098 (2007). The Court held in Heck that when a state prisoner s eeks 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 convict ion or sentence; if it would, the complaint must be dismissed unless the plainti ff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 48687. See supra Part XVI. 1020. 420 U.S. 592 (1975). 1021. Id . at 604. In Moore v. Sims, 442 U.S. 415, 423 (1979), the Court treated the case as governed by Huffman because the state was a party to the state proceedings i n 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. 1022. Huffman, 420 U.S. at 607. In Trainor v. Hernandez, 431 U.S. 434, 444 (1977), the Court he ld that the principles of Younger and Huffman were broad enough to apply to inte rference by a federal court with ongoing civil attachment proceedings brought by the State in its sovereign capacity to vindicate important state policies. Traino r, 431 U.S. 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 states judicial contempt process was involved and the states interest in the contempt process is of sufficiently great import to require appl ication of the principles of Younger); Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 51 0, 1314 & n.12 (1987) (reversing lower courts granting of federal court injunction against a state court requirement that Texaco post bond in excess of $13 billio n in order to prevent the execution of a judgment against it while an 181

Section 1983 Litigation In Middlesex County Ethics Committee v. Garden State Bar Assn, 1023 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 raising c onstitutional claims in the state process. The Court said that three inquiries a re relevant to Younger abstention: 1. is there an ongoing state judicial proceedin g; 2. does the state proceeding implicate important state interests; and 3. is ther e an adequate opportunity in the state proceedings to raise constitutional chall enges. 1024 The Supreme Court has extended the Younger doctrine to quasijudicial administrative proceedings. In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 1025 the Court held that Younger abstention applies to quasi-judi cial administrative proceedings implicating important state interests, so long a s there is an adequate opportunity to litigate the federal claims either in the administrative proceeding or in a state court judicial review proceeding.1026 Th ere are very narrow exceptions to the Younger doctrine. One exception requires a showing that the state prosecution was undertaken in bad faith, meaning not to secure a valid conviction, but to retaliate appeal was pursued; holding that the rationale of Younger applied to this civil proceeding, observing the states interest in protecting the authority of the judic ial system, so that its orders and judgments are not rendered nugatory). But see New Orleans Public Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (198 9) (holding that Younger abstention does not apply to state judicial proceedings reviewing legislative or executive action). 1023. 457 U.S. 423 (1982). 1024. Id. at 432. 1025. 477 U.S. 619 (1986). 1026. In Ohio Civil Rights, the Court emphasi zed that the application of Younger to pending administrative proceedings is ful ly consistent with the rule that litigants need not exhaust administrative remed ies before they can bring a 1983 suit in federal court (see Patsy v. Bd. of Rege nts, 457 U.S. 496 (1982)), because the administrative proceedings here are coerci ve rather than remedial[;] began before any substantial advancement in the feder al action took place[;] and involve an important state interest. Ohio Civil Right s, 477 U.S. at 12728 n.2. 182

XX. Abstention Doctrines against or chill the exercise of constitutionally protected rights. 1027 There i s also an exception when the pending state proceedings fail to afford a full and fair opportunity to litigate the federal claim, but this is rarely found to be the case. 1028 C. Colorado River Abstention Under Colorado River abstention, named after Colorado River Water Conservation D istrict v. United States,1029 a federal court may abstain when there is a paralle l concurrent proceeding pending in state court. Even when a parallel state court pr oceeding is pending, a federal court should invoke Colorado River abstention onl y in exceptional circumstances. The federal courts task is not to find some substant ial reason for the exercise of federal jurisdiction, 1030 but to determine whethe r exceptional circumstances justify the surrender of that jurisdiction. 1031 In Co lorado River, the federal government had brought suit in federal court seeking a declaration of water rights on its own behalf and on behalf of two Indian tribe s. 1032 Soon thereafter, a defendant in the federal suit moved to join the Unite d States in a state court proceeding adjudicating the same water rights. The fed eral district court subsequently dismissed the suit, abstaining in deference to the state court proceedings. 1033 Although the Supreme Court found that Pullman, Bur1027. See 1B Martin A. Schwartz, Section 1983 Litigation: Claims and Defense s 14.03[I] (4th ed. 2006). 1028. A federal court should assume that state procedu res will afford an adequate remedy, in the absence of unambiguous authority to t he contrary. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 1415 (1987). Therefore, the federal plaintiff bears the burden of showing that state procedural law barred p resentation of her constitutional claim. Id. at 14; Moore v. Sims, 442 U.S. 415, 432 (1979); Nivens v. Gilchrist, 444 F.3d 237, 243 (4th Cir. 2006) (critical is sue is whether state law allows federal court plaintiff to raise her federal cla im in state court, not whether state court agrees with the claim); 31 Foster Chi ldren v. Bush, 329 F.3d 1255, 1279 (11th Cir. 2003). See, e.g., Gibson v. Berryh ill, 411 U.S. 564 (1973) (Younger abstention inapplicable because state board wa s incompetent by reason of bias to adjudicate issues before it). 1029. 424 U.S. 800 (1976). 1030. Moses H. Cone Meml Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983). 1031. Id. at 26. 1032. Colorado River, 424 U.S. at 805. 1033. Id. at 806. 183

Section 1983 Litigation ford, and Younger abstentions did not apply to the facts of this case, 1034 it h eld that dismissal was proper on another groundone resting not on considerations of statefederal comity or on avoidance of constitutional decisions, as do Younger , Pullman, and Burford abstentions, but on considerations of wise judicial adminis tration, giving regard to conservation of judicial resources and comprehensive d isposition of litigation. 1035 The Court noted the general rule that the pendency o f an action in the state court is no bar to proceedings concerning the same matt er in the Federal court having jurisdiction. 1036 It recognized, however, that ex ceptional circumstances might permit dismissal of a federal suit in the face of concurrent state court proceedings. 1037 The Court identified four factors to be considered in determining whether such exceptional circumstances exist: (1) the problems created by two courts exercising concurrent jurisdiction over a res; ( 2) the relative inconvenience of the federal forum; (3) the goal of avoiding pie cemeal litigation; and (4) the order in which the state and federal forums obtai ned jurisdiction.1038 In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 1039 the Court underscored the need for exceptional circumstances before a federal court surrenders its jurisdiction over a case on the ground that ther e is a duplicative proceeding pending in state court.1040 In addition, the Court announced that another factor to be given great weight in the balancing of cons iderations is the presence of a question of federal law.1041 This factor, of cou rse, weighs heavily in favor of retention of federal court jurisdiction. 1034. Id. at 81317. 1035. Id. at 817 (quoting Kerotest Mfg. Co. v. C-O Two Fire E quip. Co., 342 U.S. 180, 183 (1952)). 1036. Colorado River, 424 U.S. at 817 (citing McClellan v. Carland, 217 U.S. 268, 282 (1910)). 1037. Colorado River, 424 U.S. at 818. 1038. Id. (no ting that no one factor is determinative and only the clearest of justifications will warrant dismissal). 1039. 460 U.S. 1 (1983). The case involved parallel stat e and federal proceedings addressing the issue of whether a contract between the parties was subject to arbitration. 1040. Id. at 2526. 1041. Id. at 23. 184

XX. Abstention Doctrines While the Court has left open whether the proper course when employing Colorado River abstention is a stay or a dismissal without prejudice, it is clear that res ort to the federal forum should remain available if warranted by a significant c hange of circumstances. 1042 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.1043 In Wilton v. Seven Falls Co., 1044 the Supreme Co urt 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 [federal] Declaratory Judgment Act . . . justify a standard vesting dist rict courts with greater discretion in declaratory judgment actions than that pe rmitted under the exceptional circumstances test of Colorado River and Moses H. Co ne. . . . In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerati ons of practicality and wise judicial administration. 1045 A stay order granted u nder Colorado River abstention is final and immediately appealable. 1046 However , an order refusing abstention un1042. Arizona v. San Carlos Apache Tribe, 463 U .S. 545, 570 n.21 (1983). To safeguard against the running of the statute of lim itations should the state litigation leave some issues unresolved, the preferabl e course would be to stay, rather than dismiss, the federal action. See Wilton v . Seven Falls Co., 515 U.S. 277, 288 n.2 (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 [ensures] that the federal action can proc eed without risk of a time bar if the state case, for any reason, fails to resol ve the matter in controversy). 1043. San Carlos Apache Tribe, 463 U.S. at 560. 10 44. 515 U.S. 277 (1995). 1045. Id. at 281. The Court found that the discretionar y standard announced in Brillhart v. Excess Insurance Co. of America, 316 U.S. 4 91 (1942), was not supplanted by the exceptional circumstances test of Colorado Ri ver and Moses H. Cone. Wilton, 515 U.S. at 28287. Brillhart, like Wilton, involve d an insurer seeking a federal declaratory judgment of nonliability in the face of a state court coercive suit seeking coverage under the policy. Wilton, 515 U. S. at 282. See also NY Life Distributors, Inc. v. Adherence Group, Inc., 72 F.3d 371, 382 (3d Cir. 1995) (holding that the discretionary standard enunciated in B rillhart governs a district courts decision to dismiss an action commenced under the interpleader statute during the pendency of parallel state court proceedings) . 1046. Moses H. Cone Meml Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). 185

Section 1983 Litigation der Colorado River is inherently tentative and is not immediately appealable under the collateral order doctrine. 1047 D. Burford Abstention Under Burford abstention, named after Burford v. Sun Oil Co., 1048 a federal cou rt may abstain when federal relief would disrupt a complex state regulatory sche me and the states effort to centralize judicial review in a unified state court o f special competence. 1049 In Burford, the plaintiff sought to enjoin the enforc ement of a Texas Railroad Commission order permitting the drilling of some wells on a particular Texas oil field. The order was challenged as a violation of bot h state law and federal constitutional grounds. 1050 The Texas legislature had e stablished a complex, thorough system of administrative and judicial review of t he commissions orders, concentrating all direct review of such orders in the stat e court of one county.1051 The state scheme evidenced an effort to establish a u niform policy with respect to the regulation of a matter of substantial local co ncern. The Court found that [t]hese questions of regulation of the industry by th e state administrative agency . . . so clearly involve basic problems of Texas p olicy that equitable discretion should be exercised to give the Texas courts the first opportunity to consider them. 1052 Thus, where complex administrative proc edures have been developed in an effort to formulate uniform policy in an area o f local law, a sound respect for the independence of state action requires the fe deral equity court to stay its hand. 1053 Unlike Pullman abstention, Burford abst ention does not anticipate a return to the federal district court. The federal c ourt dismisses the action in favor of state administrative and judicial review o f the issues, with ultimate review of the federal questions . . . fully preserved in the Supreme Court.1054 1047. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278 (1988). 1 048. 319 U.S. 315 (1943). 1049. New Orleans Pub. Serv. Inc. v. Council of New Or leans, 491 U.S. 350, 361 (1989). 1050. 1051. 1052. 1053. 1054. Burford, 319 U.S. at 31617. Id. at 32426. Id. at 332. Id. at 334. Id. at 33334. 186

XX. Abstention Doctrines In New Orleans Public Service, Inc. v. Council of New Orleans (NOPSI),1055 the C ourt clarified that [w]hile Burford is concerned with protecting complex state ad ministrative processes from undue federal interference, it does not require abst ention whenever there exists such a process, or even in all cases where there is a potential for conflict with state regulatory law or policy. 1056 The NOPSI Court emphasized that the primary concern underlying Burford abstention is the avoida nce of federal disruption of the States attempt to ensure uniformity in the treatm ent of an essentially local problem. 1057 The Court in NOPSI stated that under the Burford doctrine, [w]here timely and adequate state-court review is available, a federal court sit ting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are difficult questions of state law bea ring on policy problems of substantial public import whose importance transcends the result in the case then at bar; or (2) where the exercise of federal review o f the question in a case and in similar cases would be disruptive of state effor ts to establish a coherent policy with respect to a matter of substantial public concern.1058 The Supreme Court has held that the power to dismiss or remand based on Burford abstention principles exists only where the relief sought is equitable or otherw ise discretionary in nature.1059 Where damages were sought, the Court found the district courts remand order to be an unwarranted application of the Burford doctr ine. 1060 1055. 491 U.S. 350 (1989). NOPSI involved a refusal by the New Orleans City Coun cil to allow NOPSI to get a rate increase to cover additional costs that had bee n allocated to it, along with other utility companies, by the Federal Energy Reg ulatory Commission for the Grand Gulf nuclear reactor. 1056. Id. at 362. 1057. I d. 1058. Id. at 361 (quoting Colorado River Water Conservation Dist. v. United S tates, 424 U.S. 800, 814 (1976)). 1059. Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 731 (1996). 1060. Id. Given the facts of the case before it, the Court f ound it unnecessary to decide whether a more limited abstention-based stay order w ould have been appropriate. Id. 187

Section 1983 Litigation E. Domestic Relations Doctrine The domestic relations doctrine generally prohibits federal court adjudication of a domestic relations matter, such as child custody, child support, or alimony. 1 061 Whether this doctrine applies to 1983 constitutional claims is unclear. In f act, federal courts have routinely adjudicated the constitutionality of state po licies pertaining to family law matters. 1062 F. Tax Injunction Act The Tax Injunction Act prohibits federal courts from interfering with state and local tax collection, so long as the state provides a plain, speedy, and efficien t remedy. 1063 The Tax Injunction Act is a jurisdictional bar that is not subject to waiver, and the federal courts are duty-bound to investigate the application of the Tax Injunction Act regardless of whether the parties raise it as an issue . 1064 However, in 1061. See generally Akenbrandt v. Richards, 504 U.S. 689, 703 (1992). 1062. See Troxel v. Granville, 530 U.S. 57 (2000); Clark v. Jeter, 486 U.S. 456 (1988); Le hr v. Robertson, 463 U.S. 248 (1983); Pickett v. Brown, 462 U.S. 1 (1983); Mills v. Habluetzel, 456 U.S. 91 (1982); Santosky v. Kramer, 455 U.S. 745 (1982); Lassit er v. Dept of Soc. Servs., 452 U.S. 18 (1981); Little v. Streater, 452 U.S. 1 (19 81); Caban v. Mohammed, 441 U.S. 380 (1979); Orr v. Orr, 440 U.S. 268 (1979); Qu illoin v. Walcott, 434 U.S. 246 (1978); Smith v. Org. of Foster Families for Equ al. & Reform, 431 U.S. 816 (1977); Sosna v. Iowa, 419 U.S. 393 (1975); Stanley v . Illinois, 405 U.S. 645 (1972). Given these decisions, it is hard to conclude t hat the domestic relations doctrine extends to all federal questions arising in the family law area. See Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984). The Supr eme Courts decision in Lehman v. Lycoming County Childrens Services Agency, 458 U. S. 502 (1982), that federal habeas corpus is not available to contest the involu ntary termination of parental rights, is based on the fact that Congress did not intend that the federal habeas corpus statutes encompass child custody cases. 1 063. 28 U.S.C. 1341 (1996). See California v. Grace Brethren Church, 457 U.S. 39 3, 408 (1982) (Tax Injunction Act applies to federal court suit for declaratory judgment that state tax policy is unconstitutional); Fair Assessment in Real Est ate v. McNary, 454 U.S. 100 (1981) (policies of 1341 pertain to 1983 claims for damages); Rosewell v. La Salle Natl Bank, 450 U.S. 503 (1981). See also Natl Priva te Truck Council, Inc. v. Okla. Tax Commn, 515 U.S. 582 (1995) (policies of Tax I njunction Act pertain to 1983 action against state tax and require state courts to refrain from granting prospective relief under 1983 when there is adequate st ate legal remedy). 1064. Folio v. City of Clarksburg, 134 F.3d 1211, 1214 (4th C ir. 1998) (citations omitted). 188

XX. Abstention Doctrines Hibbs v. Winn, 1065 the Supreme Court held that the Tax Injunction Act does not apply to a constitutional challenge to a state tax credit policy because such a claim does not interfere with the collection of state taxes. 1065. 542 U.S. 88, 10712 (2004). 189

Section 1983 Litigation XXI. Monetary Relief The full range of common-law remedies is available to a plaintiff asserting a cl aim under 1983. Legal relief may take the form of nominal, compensatory, and pun itive damages. Claims for damages may raise issues concerning release-dismissal a greements, indemnification, and limitations on prisoner remedies in the Prison Li tigation Reform Act. A. Nominal and Compensatory Damages When 1983 plaintiffs seek damages for violations of constitutional rights, the le vel of damages is ordinarily determined according to principles derived from the common law of torts. 1066 The Supreme Court has stressed, however, that [t]he rul e of damages . . . is a federal rule responsive to the need whenever a federal r ight is impaired. 1067 Compensatory damages generally fall into one of two catego ries: special or general damages. Special damages relate to specific pecuniary l osses, such as lost earnings, medical expenses, and loss of earning capacity. Ge neral damages include compensation for physical pain and suffering, as well as e motional distress. Nominal damages are awarded for the violation of a right with no proven actual injury. In Carey v. Piphus 1068 and Memphis Community School D istrict v. Stachura, 1069 the Supreme Court held that compensatory damages for a constitutional violation under 1983 must be based on the actual injuries suffer ed by the plaintiff. The Court in Carey and Stachura ruled that when a 1983 plai ntiff suffers a violation of constitutional rights, but no actual injuries, she is entitled to an award of only $1 in nominal damages. 1070 In Carey, the Court held that although mental and emotional distress caused by the denial of procedur al 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 compe nsaMemphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986). Sullivan v. Litt le Hunting Park, Inc., 396 U.S. 229, 240 (1969). 435 U.S. 247 (1978) (procedural due process claim). 477 U.S. 299 (1986) (First Amendment claim). Stachura, 477 U.S. at 308 n.11; Carey, 435 U.S. at 267. See also Corpus v. Bennett, 430 F.3d 9 12, 916 (8th Cir. 2005) ([O]ne dollar is recognized as an appropriate value for n ominal damages.). 1066. 1067. 1068. 1069. 1070. 190

XXI. Monetary Relief tory damages without proof that such injury actually was caused. 1071 Thus, actua l damages will not be presumed in a procedural due process case and, without pro of of damages, the plaintiff will be entitled only to nominal damages not to exce ed one dollar. 1072 The Court noted that the primary purpose of the damages remed y in 1983 litigation is to compensate persons for injuries caused by the deprivat ion of constitutional rights.1073 Actual damages caused by a denial of procedural due process may be based on either the emotional distress caused by the denial of fair process, or by an unjustifiable deprivation of liberty or property attri butable to lack of fair process. 1074 Relying on Carey, the Supreme Court in Sta chura extended its holding to a case involving the violation of a plaintiffs Firs t Amendment rights. In Stachura, the Court held that damages based on the abstrac t value or importance of constitutional rights are not a permissible element of comp ensatory damages in 1983 cases. 1075 The problem identified in Stachura was that the district courts jury instructions allowed for an award of damages that was ne ither compensatory nor punitive, but was based solely on the perceived value or imp ortance of the particular constitutional right violated.1076 The Court distinguis hed the line of common-law voting rights cases awarding presumed damages for a no nmonetary harm that cannot easily be quantified. 1077 Thus, while presumed damage s ordinarily will not be available in 1983 actions, presumed damages may be appr opriate [w]hen a plaintiff seeks compensation for an injury that is likely to hav e occurred but difficult to establish. 1078 Like common-law tort plaintiffs, 1983 plaintiffs are required to take reasonable steps to mitigate their damages. 107 9 The burden is on Carey, 435 U.S. at 264. Id. at 267. Id. at 254. Id. at 26364 (mental and emotiona l distress actually caused by denial of procedural due process is compensable un der 1983). 1075. Stachura, 477 U.S. at 310. 1076. Id. at 310 n.13. 1077. Id. at 311 & 312 n.14. 1078. Id. at 31011. 1079. 1B Martin A. Schwartz, Section 1983 Lit igation: Claims and Defenses 16.08 (4th ed. 2006). See, e.g., Miller v. Lovett, 879 F.2d 1066, 107071 (2d Cir. 1989). 1071. 1072. 1073. 1074. 191

Section 1983 Litigation the defendant to show that the plaintiff has not mitigated her damages. 1080 B. Punitive Damages In Smith v. Wade,1081 the Supreme Court held that a 1983 plaintiff may recover p unitive damages against an official in her personal capacity if the official act ed with a malicious or evil intent or in callous disregard of the plaintiffs fede rally protected rights.1082 Although the specific intent to violate plaintiffs fed erally protected right will support a punitive damages award, reckless indifferen ce towards a plaintiffs federally protected right also suffices to authorize liabi lity for punitive damages under 1983.1083 The Smith standard does not require a s howing that the defendant engaged in egregious misconduct.1084 The majority view i n the circuits is that punitive damages may be awarded even when the plaintiff r ecovers only nominal damages.1085 If a reasonable jury could find that the defen dant acted with malice or callous indifference, the district judge should submit the issue of punitive damages to the jury under proper instructions. 1086 The c ourts in 1983 cases hold that the burden is on the defendant to introduce eviden ce of his financial circumstances. 1087 1080. 1B Schwartz, supra note 1079, 16.08[B]. 1081. 461 U.S. 30 (1983). 1082. Pu nitive damages may also be based on oppressive conduct when the defendant misused authority or exploited the plaintiffs weakness. Dang v. Cross, 42 2 F.3d 800, 80911 (9th Cir. 2005). 1083. Powell v. Alexander, 391 F.3d 1, 19 (1st Cir. 2004). 1084. Kolstad v. Am. Dental Assn, 527 U.S. 526, 53839 (1999). 1085. 1 B Schwartz, supra note 1079, 16.14[D][1]. See, e.g., Campus-Orrego v. Rivera, 17 5 F.3d 89, 97 (1st Cir. 1999) ([A]s a matter of federal law, a punitive damage aw ard which responds to a finding of a constitutional breach may endure even thoug h unaccompanied by an award of compensatory damages. (footnote and citations omit ted)); King v. Macri, 993 F.2d 294, 29798 (2d Cir. 1993) (citing cases). 1086. 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses 16.14[D][3] (4 th ed. 2005). 1087. Tapalian v. Tusino, 377 F.3d 1, 8 (1st Cir. 2004); Mason v. Okla. Tpk. Auth., 182 F.3d 1212, 1214 (10th Cir. 1999); King v. Macri, 993 F.2d 294, 298 (2d Cir. 1993); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978). See a lso TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28 (1993) (notin g that it is well settled that defendants net worth is factor typically considered in assessing punitive damages). 192

XXI. Monetary Relief In City of Newport v. Fact Concerts, Inc., 1088 the Supreme Court held that puni tive damages cannot be awarded against a municipal entity. The Court in City of Newport found the municipal entities are immune from punitive damages under 1983 . Nor may punitive damages be awarded under 1983 against a state entity. Elevent h Amendment state sovereign immunity bars a federal court award of punitive dama ges payable out of the state treasury. 1089 Furthermore, states and state entiti es are not suable persons within the meaning of 1983.1090 Supreme Court decisional law holds that grossly excessive punitive damage awards violate substantive due p rocess.1091 To determine whether the award is grossly excessive, consideration mus t be given to (1) the degree of reprehensibility of the defendants conductthe most important factor; (2) the ratio between the harm or potential harm to the plain tiff and the punitive damages award; and (3) the disparity between the punitive damages award and civil penalties authorized or imposed in comparable cases. 109 2 The Supreme Court stated that in practice, few [punitive damages] awards exceed ing a singledigit ratio between punitive and compensatory damages, to a signific ant degree, will satisfy due process. 1093 However, the Court also recognized tha t a larger ratio may comport with due process when a particularly egregious act h as resulted in only a small amount of economic damages. 1094 These principles app ly in 1983 actions. 1095 453 U.S. 247, 261 (1981). See supra Part XIII. See supra Part VI. State Farm Mut . Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003); BMW of N. Am., Inc. v. G ore, 517 U.S. 559, 562 (1996). 1092. Campbell, 538 U.S. at 416; Gore, 517 U.S. a t 562. 1093. Campbell, 538 U.S. at 425. 1094. Id. at 419 (quoting Gore, 517 U.S. at 582). 1095. See, e.g., Tapalian, 377 F.3d at 89; Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003); DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2 003); Bogle v. McClure, 332 F.3d 1347, 1360 (11th Cir. 2003); Lee v. Edwards, 10 1 F.3d 805, 80809 (2d Cir. 1996); Morgan v. Woessner, 997 F.2d 1244, 125657 (9th C ir. 1993), cert. dismissed, 510 U.S. 1033 (1994). 1088. 1089. 1090. 1091. 193

Section 1983 Litigation C. Release-Dismissal Agreements Section 1983 damage claims may be settled, waived, or released. 1096 A recurring issue in 1983 actions concerns the validity of releasedismissal agreements pursua nt to which law enforcement authorities agree to dismiss criminal charges in exc hange for the release of 1983 claims. In Town of Newton v. Rumery, 1097 the Supr eme Court held that these agreements are not automatically invalid. Rather, the validity of a release-dismissal agreement should be evaluated on a case-by-case basis to determine whether the agreement (1) was voluntary, (2) was the product of prosecutorial overreaching or other misconduct, and (3) adversely affects the public interest. D. Indemnification An important issue in many 1983 cases is whether the relevant governmental entit y will indemnify the defendant official for her monetary liability. Indemnificat ion is not covered by federal law; it is strictly a matter of state or local law .1098 Some of the issues that may arise in federal court 1983 actions are whethe r there is supplemental jurisdiction over the indemnification claim and, if so, whether the federal court should exercise that jurisdiction; 1099 the meaning an d application of state indemnification law;1100 and whether the jury should be i nformed about indemnification. Although most courts hold that indemnification is akin to insurance and should be shielded from the jury,1101 the authors believe that it is better that the jurors be informed about indemnification rather than being kept in the dark.1102 1096. The validity of a settlement, waiver, or release of a 1983 claim depends o n whether it is voluntary, informed, and not contrary to public policy. 1B Schwa rtz, supra note 1079, 16.16[B]. 1097. 480 U.S. 386 (1985). 1098. See 1B Schwartz , supra note 1079, 16.17. 1099. See 1 Martin A. Schwartz, Section 1983 Litigatio n: Claims and Defenses 1.07[C] (4th ed. 2004). 1100. See 1B Schwartz, supra note 1079, 16.17[B][1]. 1101. Fed. R. Evid. 408. See, e.g., Larez v. Holcomb, 16 F.3 d 1513 (9th Cir. 1994). 1102. See Martin A. Schwartz, Should Juries Be Informed that Municipality Will Indemnify for Constitutional Wrongdoing?, 86 Iowa L. Rev. 1209 (2001). 194

XXI. Monetary Relief E. Prison Litigation Reform Act1103 In any action involving prisoners rights, there are likely to be substantial limi tations placed on the availability and scope of the remedies sought. Although a comprehensive discussion of the various provisions of the Prison Litigation Refo rm Act (PLRA) is beyond the scope of this monograph, the importance of consultin g the Act in appropriate cases cannot be overemphasized. For example, the PLRA p recludes the bringing of a civil action by a prisoner for mental or emotional inj ury suffered while in custody without a prior showing of physical injury. 1104 Ex haustion of administrative remedies is required in actions relating to prison co nditions.1105 The availability of attorneys fees for prevailing prisoners is sign ificantly restricted.1106 Injunctive relief in prison reform litigation must be narrowly drawn to remedy violations of federal rights.1107 Government officials may seek the immediate termination of all prospective relief that was awarded or approved before the enactment of the PLRA in the absence of a finding by the cou rt that the relief is narrowly drawn, extends no further than necessary to corre ct the violation of the federal right, and is the least intrusive means necessar y to correct the violation of the federal right. 1108 1103. On April 26, 1996, Congress enacted the Prison Litigation Reform Act as Ti tle VIII of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321 (1996). 1104. 42 U.S.C. 1997e(e) (2006). Se e, e.g., Zehner v. Trigg, 133 F.3d 459, 464 (7th Cir. 1997) (upholding constitut ionality of provision). See 1B Schwartz, supra note 1079, 16.07[H][2]. 1105. 42 U.S.C. 1997e(a) (2006). See supra Part XVI. 1106. 42 U.S.C. 1997e(d)(1)(4) (2006) . 1107. 18 U.S.C. 3626(a)(2) (2006). 1108. Id. 3626(b)(2). See 1B Schwartz, supr a note 1079, 16.03[D]. 195

Section 1983 Litigation XXII. Attorneys Fees1109 The Civil Rights Attorneys Fees Awards Act of 1976, 42 U.S.C. 1988(b), authorizes courts, in their discretion, to award reasonable attorneys fees to the prevailin g party in a 1983 action. Section 1988 fees are an integral part of 1983 remedies. 1110 The Supreme Court has admonished the lower federal courts that a request for [ 1988(b)] attorneys fees should not result in a second major litigation. 1111 Nev ertheless, 1988(b) fee disputes often do result in a second major litigation. 1112 Fee litigation can turn a simple civil case into two or even more cases the case on the merits, the case for fees, the case for fees on appeal, the case for fees for proving fees, and so on ad infinitum or at least ad nauseam. 1113 The goal o f avoiding a second major litigation has proved a somewhat pious and forlorn hope . In view of the complexities the Supreme Court and the lower courts have grafte d onto the fee calculation process, federal courts are today enmeshed in an inor dinately time consuming and ultimately futile search for a fee that reflects mar ket forces in the absence of a relevant market.1114 A. Prevailing Parties Section 1988(b) authorizes a fee award to a prevailing party. 1115 Whether a party is a prevailing party is a question of law for the 1109. See generally Awarding Attorneys Fees and Managing Fee Litigation (Federal Judicial Center 2d ed. 2005). 1110. Maine v. Thiboutot, 448 U.S. 1, 11 (1980). S ee also Hudson v. Michigan, 126 S. Ct. 2159, 2167 (2006) (Since some civil-rights violations would yield damages too small to justify the expense of litigation, Congress has authorized attorneys fees for civil-rights plaintiffs.). 1111. Hensle y v. Eckerhart, 461 U.S. 424, 437 (1983). Accord Webb v. County Bd. of Educ., 47 1 U.S. 234, 244 n.20 (1985); Blum v. Stenson, 465 U.S. 886, 902 n.19 (1984). 111 2. Doe v. Ward, 282 F. Supp. 2d 323, 329 n.4 (W.D. Pa. 2003) (principle that fee s should not result in major litigation is one of the emptiest phrases in our jur isprudence because fee questions most definitely constitute major litigation). 1113 . Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988). See also Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003) (ERISA suit). 1114. System Mgmt., Inc. v. Loiselle, 154 F. Supp. 2d 195, 207 (D. Mass. 2001). 1115. Liability on th e merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, 1988 does not authorize a fee award against the defendant. Hensley v. Eckerhart, 461 U .S. 424, 433 (1983) (citation omitted). 196

XXII. Attorneys Fees court.1116 Courts interpret the 1988 fee-shifting statute to mean that attorneys fees should be awarded to a prevailing plaintiff almost as a matter of course. 1 117 Fees should be denied to a prevailing plaintiff only when special circumstanc es would make a fee award unjust. The fiscal impact of a fee award upon a municip ality,1118 defendants good faith,1119 and the fact the fees will ultimately be pa id by taxpayers 1120 have all been held not to be special circumstances justifying either a denial or reduction of fees. However, a plaintiffs grossly inflated fee application may be a special circumstance justifying the denial of fees. 1121 P revailing defendants are entitled to attorneys fees only when the plaintiffs actio n was frivolous, unreasonable, or groundless, or . . . the plaintiff continued to litigate after it clearly became so. 1122 Although attorneys fees should rarely be awarded against [pro se] 1983 plaintiffs, the district court has discretion to d o so. 1123 In most cases the district courts failure to give adequate reasons or explanation 1116. Jenkins v. Missouri, 127 F.3d 709, 71314 (8th Cir. 1997). 1117. See, e.g., Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 293 (1st Cir. 2001) (awards to prevailing 1983 plaintiffs are virtually obligatory). 1118. Aware Woman Clinic, Inc. v. Cocoa Beach, 629 F.2d 1146, 114950 (5th Cir. 1980). 1119. See, e.g., Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1301 (1st Cir. 1997). 1120. See, e.g., Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983). 1121. 2 Mar tin Schwartz & John E. Kirklin, Section 1983 Litigation: Statutory Attorneys Fees 3.14 (3d ed. 1997). 1122. Hughes v. Rowe, 449 U.S. 5, 15 (1980); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422 (1978); Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985) (no hard and fast rules for determin ing whether plaintiffs claim was frivolouscourts may consider whether plaintiff es tablished prima facie case; whether defendant offered to settle; and whether dis trict court dismissed case before trial or after trial on merits). The circuits are in conflict over whether a prevailing defendant is entitled to attorneys fees when the plaintiff asserts frivolous and non-frivolous claims that are signific antly intertwined. Some courts hold that in these circumstances the defendant ca nnot recover fees for defending against the frivolous claims. Colombrito v. Kell y, 764 F.3d 122, 132 (2d Cir. 1985); Tarter v. Rauback, 742 F.3d 977, 98788 (6th Cir. 1984). Other courts have allowed the defendant to recover fees for the friv olous claims, even when the frivolous and non-frivolous claims are factually int errelated, so long as the claims are sufficiently distinct, and the merits of ea ch can be evaluated separately. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1 055, 1064 (9th Cir. 2006); Quintana v. Jenne, 414 F.3d 1306, 1312 (11th Cir. 200 5). See also Ward v. Hickey, 996 F.2d 448 (1st Cir. 1994). 1123. Houston v. Nort on, 215 F.3d 1172, 117475 (10th Cir. 2000). 197

Section 1983 Litigation for awarding fees to a defendant is an abuse of discretion necessitating a reman d. 1124 The plaintiff will be considered a prevailing party when he succeeds on a ny significant issue that achieves some of the benefit the plaintiff sought in br inging suit.1125 To be a prevailing party, the plaintiff must obtain some judici al relief as a result of the litigation; the mere fact that the court expressed the view that the plaintiffs constitutional rights were violated does not qualify the plaintiff as a prevailing party.1126 The mere fact that the plaintiff preva iled on a procedural issue during the course of the litigation, such as by obtai ning an appellate decision granting a new trial, also does not qualify the plain tiff as a prevailing party.1127 [A] plaintiff prevails when actual relief on the me rits of [the plaintiffs] claim materially alters the legal relationship between t he parties by modifying the defendants behavior in a way that directly benefits t he plaintiff. 1128 In Farrar v. Hobby, 1129 the Supreme Court held that a 1983 pl aintiff who recovers only nominal damages is nevertheless a prevailing party eli gible to recover attorneys fees under 1988(b); but usually a reasonable fee in th ese circumstances is either no fees or very low fees. Justice OConnors concurring opinion in Farrar urged courts to consider the difference between the damages so ught and the damages recovered, the significance of the legal issues on which th e plaintiff claims to have prevailed, and the public purpose served by the litig ation.1130 The lower federal courts have generally relied on Justice OConnors conc urrence in Farrar in evaluating the fee issue in nominal damages cases. 1131 1124. Dehertoghen v. City of Hemet, 159 F. Appx 775, 776 (9th Cir. 2005); Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988). 1125. Texas State Teach ers Assn v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989); Hensley v. Ecker hart, 461 U.S. 424, 433 (1983). 1126. Hewitt v. Helms, 482 U.S. 755, 763 (1987). 1127. Hanrahan v. Hampton, 446 U.S. 754, 75759 (1980). 1128. Farrar v. Hobby, 50 6 U.S. 103, 11112 (1992). 1129. Id. at 11215. 1130. Id. at 12025 (OConnor, J., concu rring). 1131. See, e.g., Lippoldt v. Cole, 468 F.3d 1204, 1222 (10th Cir. 2006); Mercer v. Duke Univ., 401 F.3d 199, 20304 (4th Cir. 2005); Muhammad v. Lockhart, 104 F.3d 1069, 1070 (8th Cir. 1997); Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2 d Cir.), cert. denied, 513 U.S. 876 (1994). 198

XXII. Attorneys Fees A plaintiff who asserts a 1983 claim that is not insubstantial and obtains relie f on a pendent (i.e., supplemental) state law claim is a prevailing party eligible f or fees under 1988, even though the 1983 claim is not decided on the merits.1132 The plaintiff, however, is not entitled to fees if the 1983 claim is insubstant ial. 1133 The plaintiff may be a prevailing party even if she did not prevail on all of her claims. In Hensley v. Eckerhart,1134 the Supreme Court held that whe n the plaintiff prevails on some but not all claims arising out of common facts, the results obtained determine whether the fees should be reduced because of la ck of success on some claims. The Court said that in determining the amount of t he fee award, the most critical factor is the degree of success obtained. 1135 The Court also ruled that when the plaintiff prevails on some but not all claims th at are not interrelated, the plaintiff should be awarded fees only for the succe ssful claims.1136 However, when the successful and unsuccessful claims are inter related, the district court should focus on the overall results achieved. If the plaintiff achieved excellent results, she should recover a full compensatory fee award. If the plaintiff achieved only partial or limited success, the district cou rt should consider whether the lodestar fee amount (reasonable hours multiplied by reasonable rates) is excessive. The district court should award only the amou nt of fees that is reasonable in relation to the results obtained. 1137 1132. Maher v. Gagne, 448 U.S. 122, 127 (1980); Milwe v. Cavuoto, 653 F.2d 80, 8 4 (2d Cir. 1981). 1133. See, e.g., United States v. Washington, 813 F.2d 1020, 1024 (9th Cir. 1987 ), cert. denied, 485 U.S. 1034 (1988); Reel v. Ark. Dept of Corr., 672 F.2d 693, 69798 (8th Cir. 1982) (plaintiff prevailed on state tort claims, but district cou rt rejected plaintiffs 1983 claims as insubstantial). 1134. 461 U.S. 424, 434 (1983 ). 1135. Id. at 436. Accord Farrar v. Hobby, 506 U.S. 103, 114 (1992). 1136. [W]o rk on an unsuccessful claim [based on different facts and different legal theori es] cannot be deemed to have been expended in pursuit of the ultimate result achi eved. The congressional intent to limit awards to prevailing parties requires tha t these unrelated claims be treated as if they had been raised in separate lawsu its, and therefore no fee may be awarded for services on the unsuccessful claim. Hensley, 461 U.S. at 435 (citation omitted). 1137. Id. at 440. 199

Section 1983 Litigation In Buckhannon Board & Care Home v. West Virginia Department of Health & Human Re sources, 1138 the Supreme Court held that the fact that the lawsuit was a cataly st in causing the defendant to alter its conduct in relation to the plaintiff do es not qualify the plaintiff as a prevailing party. The Court said that to be a p revailing party, the plaintiff must secure a favorable judgment on the merits or a court-ordered consent decree. The decision in Buckhannon overturned the cataly st doctrine that had been adopted by eleven circuits and rejected only by the Fo urth Circuit. Under Buckhannon, only enforceable judgments on the merits and cour t-ordered consent decrees create the material alteration of the legal relationshi p of the parties necessary to permit an award of attorneys fees. 1139 Dictum in Buc khannon states that private settlements not embodied in a judicial decree will n ot qualify the plaintiff as a prevailing party because [p]rivate settlements do n ot entail the judicial approval and oversight involved in consent decrees. 1140 B uckhannon directly involved the fee-shifting statutes in the federal Fair Housin g Act and Americans With Disabilities Act. However, the lower federal courts hav e uniformly applied the decision to other civil rights fee-shifting statutes, in cluding 42 U.S.C. 1988(b).1141 The decision in Buckhannon has generated a great deal of litigation, raising such issues as whether a preliminary injunction or so ordered settlement qualifies the plaintiff as a prevailing party.1142 A stipulati on and order of discontinuance, combined with court reten532 U.S. 598, 607 (2001). Id. at 604. Id. at 604 n.7. See Schwartz & Kirklin, su pra note 1121, 2008-1 Cum. Supp. 2.11. Id. See, e.g., Sole v. Wyner, 127 S. Ct. 2188 (2007) (preliminary injunction does not qualify plaintiff as prevailing par ty when final decision on merits is in favor of defendant); Roberson v. Giuliani , 346 F.3d 75, 84 (2d Cir. 2003) (stipulation and order of discontinuance acknow ledging parties settlement agreement and providing for retention of district cour t jurisdiction over settlement agreement for enforcement purposes carried suffici ent judicial sanction to render plaintiffs prevailing parties); Toms v. Taft, 338 F.3d 519 (6th Cir. 2003) (private settlement did not qualify plaintiffs as prev ailing parties); Truesdell v. Phila. Hous. Auth., 290 F.3d 159 (3d Cir. 2002) (s ettlement incorporated in court order giving plaintiff right to seek judicial en forcement of settlement rendered plaintiff a prevailing party). 1138. 1139. 1140. 1141. 1142. 200

XXII. Attorneys Fees tion of jurisdiction over the settlement for enforcement purposes, may qualify t he plaintiff as a prevailing party.1143 A pro se plaintiff is not eligible to re cover attorneys fees, even if the plaintiff is an attorney. 1144 Thus, only a pre vailing plaintiff who is represented by counsel is eligible to recover fees. B. Computation of Fee Award Fees awarded under 1988 are generally computed under the lodestar method of multip lying reasonable hours by reasonable hourly market rates for attorneys in the co mmunity with comparable backgrounds and experience. 1145 The underlying goal of a 1988(b) fee award is to attract competent counsel. 1146 The fee applicant has the burden of showing by satisfactory evidencein addition to the attorneys own affidav itsthat the requested hourly rates are the prevailing market rates. 1147 At a minimu m, a fee applicant must provide some information about the attorneys billing prac tices and hourly rate, the attorneys skill and experience (including the number o f years that counsel has practiced law), the nature of counsels practices as it r elates to this kind of litigation, and the prevailing market rates in the releva nt community.1148 1143. Roberson, 346 F.3d at 78, 83. 1144. Kay v. Ehrler, 499 U.S. 432, 43738 (199 1). 1145. Blum v. Stenson, 465 U.S. 886, 897 (1984); Hensley v. Eckerhart, 461 U .S. 424, 433 (1983) (The most useful starting point for determining the amount of a reasonable fee is the amount of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.). See also Arbor Hill Concerned Citizens Neighborhood A ssn v. County of Albany, 522 F.3d 182, 188, 190 (2d Cir. 2008) (acknowledging tha t Supreme Court has adopted lodestar method in principle, but adopting modified ap proach using reasonable hourly rate to determine presumptively reasonable fee). 11 46. Hensley, 461 U.S. at 430. 1147. Farbotko v. Clinton County, 433 F.3d 204, 20 9 (2d Cir. 2005) (quoting Blum, 465 U.S. at 896 n.11). Accord Smith v. Phila. Ho us. Auth., 107 F.3d 223, 225 (3d Cir. 1997); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). 1148. Blackman v. District of Columbia, 397 F. Supp. 2d 1 2, 14 (D.D.C. 2005). See Kenny A. ex rel. Winn v. Perdue, 454 F. Supp. 2d 1260, 1284 (N.D. Ga. 2006) (The applicant attorneys customary billing rate for fee payin g clients ordinarily is the best evidence of the market rate although that infor mation is not necessarily conclusive.). 201

Section 1983 Litigation The district court may rely in part on [its] own knowledge of private firm hourly rates in the community.1149 The district court may also consider other rates that have been awarded in similar cases in the same district. 1150 The fee applicant bears the burden of documenting and demonstrating the reasonableness of the hour s claimed. 1151 The reasonableness of the hours depends in part on counsels exper tise. 1152 A fee applicant cannot demand a high hourly ratewhich is based on his o r her experience, reputation, and a presumed familiarity with the applicable lawa nd then run up an inordinate amount of time researching that same law. 1153 1149. Assn for Retarded Citizens of Conn. Inc. v. Thorne, 68 F.3d 547, 554 (2d Ci r. 1995) (citing Miele v. N.Y. Teamsters Conference Pension & Ret. Fund, 831 F.2 d 407, 409 (2d Cir. 1987)). Accord Lippoldt v. Cole, 468 F.3d 1204, 1225 (10th C ir. 2006). 1150. Amato v. City of Saratoga Springs, 991 F. Supp. 62, 66 (N.D.N.Y . 1998). Accord Anderson v. Rochester-Genesee Regl Transp. Auth., 388 F. Supp. 2d 159, 167 (W.D.N.Y. 2005). In Farbotko v. Clinton County, 433 F.3d 204 (2d Cir. 2005), the Second Circuit held that the district court erred in basing the hourl y rates solely on the rates used in other cases in the federal district. A reaso nable hourly rate must reflect the prevailing market rate. Farbotko, 433 F.3d at 2 08. Recycling rates awarded in prior cases without considering whether they conti nue to prevail may create disparity between compensation available under 1988(b) and compensation available in the marketplace. This undermines 1988(b)s central purpose of attracting competent counsel to public interest litigation. Id. at 209 . There must be a case-specific inquiry into the prevailing market rates for coun sel of similar experience and skill to the fee applicants counsel. This may . . . include judicial notice of rates awarded in prior cases and the courts own famil iarity with the rates prevailing in the district, as well any evidence proffered b y the parties. Id. A reasonable rate is not ordinarily ascertained simply by refer ence to rates awarded in prior cases. Id. at 208. The same rate should be used fo r both the trial and appellate courts. Rather than establish the appropriate rat es itself, the Second Circuit found that it was preferable to remand the issue t o the district court, which is in closer proximity to and has greater experience with the relevant community whose prevailing market rate it is determining. Id. a t 210 (citations omitted). 1151. In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 198 9) (fee application must include contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of the work wi th supporting documents, if any); Grendels Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984) (the absence of detailed contemporaneous time records, except in extraordinary circumstances, will call for a substantial reduction in any award or, in egregious cases, disallowance). 1152. Bell v. United Princeton Props., Inc ., 884 F.2d 713, 721 (3d Cir. 1989). 1153. Id. (quoting Ursic v. Bethlehem Mines , 719 F.2d 670, 677 (3d Cir. 1983)). 202

XXII. Attorneys Fees The district court should exclude hours that are excessive, redundant, or otherwi se unnecessary. 1154 The fee applicants failure to exercise proper billing judgmen t by failing to exclude hours that are excessive, redundant, or otherwise unnece ssary may lead the district court to reduce the fee award.1155 The Supreme Court has generally disapproved of the use of upward adjustments to the lodestar. 115 6 In rare cases, an upward adjustment may be made because of the superior qualit y of representation 1157 or for exceptional success. 1158 Fees may also be adjuste d upward to compensate the prevailing party for delay in payment, either by usin g current market rates rather than historic rates, or by adjusting historic rate s to account for inflation. 1159 The lodestar should not be enhanced to compensa te for the risk of non-success when the plaintiffs attorney was retained on a con tingency basis.1160 In City of Riverside v. Rivera, 1161 the Supreme Court held that the fees awarded need not be proportional to the damages recovered by the p laintiff. The approximately $245,000 in fees awarded in Riverside substantially exceeded the $33,350 in damages plaintiff recovered. Because damages awards do no t reflect 1154. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 29899 (1st Cir. 2001). 1155. See, e.g., Anderson v . Rochester-Genesee Regl Transp. Auth., 388 F. Supp. 2d 159, 16769, 171 (W.D.N.Y. 2005) (court reduced rates of plaintiffs counsel by 20% because plaintiffs counsel failed to exercise proper billing judgment and exclude excessive, redundant, or unnecessary hours). 1156. Blum v. Stenson, 465 U.S. 886, 89798 (1984). See Balle n v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006) (only in rare circumstanc es should a court adjust the lodestar figure, as this figure is the presumptivel y accurate measure of reasonable fees). 1157. Pennsylvania v. Dela. Valley Citize ns Council, 478 U.S. 546, 566 (1986); Blum, 465 U.S. at 899 (The quality of represe ntation . . . generally is reflected in the reasonable hourly rate. It, therefore , may justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was super ior to that one reasonably should expect in light of the hourly rates charged an d that the success was exceptional.). 1158. Hensley, 461 U.S. at 435. 1159. Missour i v. Jenkins, 491 U.S. 274, 28284 (1989). The rationale for allowing an adjustmen t for delay of payment, or the use of current rates, is that compensation receive d several years after the services were renderedas it frequently is in complex ci vil rights litigationis not equivalent to the same dollar amount received reasona bly promptly as the legal services are performed. Id. at 283. 1160. City of Burli ngton v. Dague, 505 U.S. 557, 56061 (1992). 1161. 477 U.S. 561, 57475, 582 (1986). 203

Section 1983 Litigation fully the public benefit advanced by civil rights litigation, Congress did not i ntend for fees in civil rights cases . . . to depend on obtaining substantial mo netary relief. 1162 The fees awarded under 1988 are not limited to the amount of fees recoverable by counsel pursuant to a contingency fee agreement.1163 Convers ely, the fees collectable under a contingency agreement may exceed the fees awar ded under 1988.1164 Fees generally may not be awarded for work performed on admi nistrative proceedings that preceded the 1983 action.1165 In addition, expert wi tness expenses are not recoverable as part of the 1988 fee award in 1983 actions . 1166 Legal services organizations and other nonprofit organizations are entitl ed to have fee awards computed on the basis of reasonable market rates rather th an on the lower salaries paid to the organizations attorneys. 1167 C. Other Fee Issues When prospective relief is awarded against state officials under the doctrine of Ex parte Young, 1168 an award of fees payable out of the state treasury is not barred by the Eleventh Amendment.1169 The Eleventh Amendment does not bar an upw ard adjustment in the lodestar to compensate for delay in payment.1170 Federal R ule of Civil Procedure 68 provides that a party defending a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending p arty for the money. . . specified in the offer, with costs then accrued. If the o fferee rejects the offer and the Id. at 575. Blanchard v. Bergeron, 489 U.S. 87, 9294 (1989). Venegas v. Mitchell, 495 U.S. 82, 8688 (1990). Webb v. County Bd. of Educ., 471 U.S. 234 (1985). W. V a. Univ. Hosps. v. Casey, 499 U.S. 83, 8692 (1991). An amendment to 1988 authoriz ed an award of expert witness fees only in actions under 42 U.S.C. 1981 or 1981( a). 42 U.S.C. 1988(c) (2006). 1167. Blum v. Stenson, 465 U.S. 886, 89495 (1984). Accord Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 487 n.31 (1982). 11 68. 209 U.S. 123 (1908). See supra Part XIII. 1169. Hutto v. Finney, 437 U.S. 67 8, 69092 (1978). 1170. Missouri v. Jenkins, 491 U.S. 274, 27984 (1989). 1162. 1163. 1164. 1165. 1166. 204

XXII. Attorneys Fees judgment finally obtained by the offeree is not more favorable than the offer, t he offeree must pay the costs incurred after making the offer. In Marek v. Chesne y, 1171 the Supreme Court held that the costs referred to in Rule 68 encompass 198 8(b) attorneys fees. Therefore, under Rule 68, even though the plaintiff was the prevailing party, if the plaintiff did not obtain more favorable relief than he had been offered under Rule 68, he may not recover from the defendant any 1988(b ) fees that accrued after the rejected offer of judgment.1172 Marek did not addr ess whether a defendant who makes a successful Rule 68 offer is entitled to 1988 fees that accrued after the date of the offer. The great weight of lower court authority holds that although Rule 68 authorizes an award of post-offer costs to t he defendant, these costs do not include 1988 fees to a nonprevailing defendant. 1173 In Evans v. Jeff D., 1174 the Supreme Court held that an offer by a defenda nt to settle the plaintiffs claim on the merits and the claim for fees simultaneo usly is not necessarily unethical. The Court said that a claim for 1988 fees is considered part of the arsenal of remedies available to combat violations of civi l rights, a goal not invariably inconsistent with conditioning settlement on the merits on a waiver of statutory attorneys fees. 1175 Finally, the district court should provide an adequate explanation for its fee decision in order to allow fo r meaningful appellate review. 1176 1171. 473 U.S. 1, 811 (1985). 1172. See Bogan v. City of Boston, 489 F.3d 417, 43 1 (1st Cir. 2007) (Rule 68 requires comparison between amount of offer at judgment, including costs then accrued, and damages recovered plus pre-offer fees actually awarded, not pre-offer fees reque sted by plaintiffs). 1173. Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016, 102628 (9th Cir. 2003) (non- 1983); Payne v. Milwaukee County, 288 F.3d 102 1, 102627 (7th Cir. 2002); Harbor Motor Co. v. Arnell Chevrolet-Geo, 265 F.3d 638 , 645 (7th Cir. 2001) (non 1983); OBrien v. City of Greers Ferry, 873 F.2d 1115, 1 120 (8th Cir. 1989); Crossman v. Marcoccio, 806 F.2d 329, 334 (1st Cir. 1986), c ert. denied, 481 U.S. 1029 (1987). Contra Jordan v. Time, Inc., 111 F.3d 102, 10 4 (11th Cir. 1997). 1174. 475 U.S. 717, 72932 (1986). 1175. Id. at 73132. 1176. Bo gan, 489 F.3d at 431; Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1065 (9th Cir. 2006) (following Chalmers v. Los Angeles, 795 F.2d 1205 (9th Cir. 1986 )); Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir. 2005) (Generally, distr ict courts must give an adequate explanation for their decision regarding reques ts for attorneys fees, otherwise we have no record on which to base our decision.) . 205

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For Further Reference Sheldon H. Hahmod, Civil Rights and Civil Liberties Litigation: The Law of Secti on 1983 (4th ed. 2006) 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses (4th ed. 2004) 1A Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses (4th ed. 2005) 1B Martin A. Schwartz, Section 1983 Litigation: Clai ms and Defenses (4th ed. 2006) Martin A. Schwartz, Section 1983 Litigation: Fede ral Evidence (4th ed. 2007) Martin A. Schwartz & John E. Kirklin, Section 1983 L itigation: Statutory Attorneys Fees (3d ed. 1997 and Cum. Supp.) Martin A. Schwar tz & George C. Pratt, Section 1983 Litigation: Jury Instructions (2007) 207

Blank pages included for double-sided printing.

Table of Cases Abdouch v. Burger, 426 F.3d 982 (8th Cir. 2005), n. 832. Abdullahi v. City of Ma dison, 423 F.3d 763 (7th Cir. 2005), n. 294. Abraham v. Raso, 183 F.3d 279 (3d C ir. 1999), nn. 251, 287. Abusaid v. Hillsborough County Board of County Commissi oners, 405 F.3d 1298 (11th Cir. 2005), n. 588. Acosta v. Hill, 504 F.3d 1323 (9t h Cir. 2007), n. 293. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970), nn. 35, 533, 569, 605. Akenbrandt v. Richards, 504 U.S. 689 (1992), n. 1061. Alabama v. Pugh, 438 U.S. 781 (1978), n. 728. Albright v. Oliver, 510 U.S. 266 (1994), nn. 25, 19497, 232, 237, 35154, 356 71. Alden v. Maine, 527 U.S. 706 (1994), n. 602. Al exander v. Ieyoub, 62 F.3d 709 (5th Cir. 1995), n. 189. Alexander v. Sandoval, 5 32 U.S. 275 (2001), n. 513. Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000), nn . 43233. Allen v. McCurry, 449 U.S. 90 (1980), nn. 94547, 950, 1011. Allen v. Musk ogee, 119 F.3d 837 (10th Cir. 1997), nn. 288, 689. Allen v. Wright, 468 U.S. 737 (1984), n. 105. Allstate Insurance Co. v. West Virginia State Bar, 233 F.3d 813 (4th Cir. 2000), n. 70. Alvarado Aguilera v. Negron, 509 F.3d 50 (1st Cir. 2007 ), n. 53. Amato v. City of Saratoga Springs, 170 F.3d 311 (2d Cir. 1999), n. 712 . Amato v. City of Saratoga Springs, 991 F. Supp. 62 (N.D.N.Y. 1998), n. 1150. A merican Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40 (1999), nn. 530, 539, 548, 55354, 563. Amos, Estate of, v. City of Page, 257 F.3d 1086 (9th C ir. 2001), n. 222. Anderson v. Atlanta, 778 F.2d 678 (11th Cir. 1985), n. 717. A nderson v. Creighton, 483 U.S. 635 (1987), nn. 827, 837, 842, 843, 848, 85459, 86 3, 876, 879, 880, 885, 894. Anderson v. Rochester-Genesee Regional Transportatio n Authority, 388 F. Supp. 2d 159 (W.D.N.Y. 2005), nn. 1150, 1155. Andrews v. Fow ler, 98 F.3d 1069 (8th Cir. 1996), n. 710. Anemone v. Metropolitan Transportatio n Authority, 410 F. Supp. 2d 255 (S.D.N.Y. 2006), n. 521. Antoine v. Byers & And erson, 508 U.S. 429 (1993), n. 773. Antrican v. Odom, 290 F.3d 178 (4th Cir. 200 2), n. 725. 209

Section 1983 Litigation Aponte Matus v. Toledo Davila, 135 F.3d 182 (1st Cir. 1998), nn. 707, 710. Apost ol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), nn. 905, 906. Arbor Hill Concerned Citizens Neighborhood Assn v. County of Albany, 522 F.3d 182 (2d Cir. 2008), n. 1145. Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996), n. 758. Arizona v. San Carl os Apache Tribe, 463 U.S. 545 (1983), nn. 1042, 1043. Arizonans for Official Eng lish v. Arizona, 520 U.S. 43 (1997), nn. 100305. Arkansas Writers Project v. Ragla nd, 481 U.S. 221 (1987), n. 93. Armstrong v. Manzo, 380 U.S. 545 (1965), n. 180. Association for Retarded Citizens of Connecticut Inc. v. Thorne, 68 F.3d 547 (2 d Cir. 1995), n. 1149. Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996), n. 704. Atteberry v. Nocona General Hospital, 430 F.3d 245 (5th Cir. 200 5), n. 710. Auriemma v. Rice, 957 F.2d 397 (7th Cir. 1992), n. 635. Aware Woman Clinic, Inc. v. Cocoa Beach, 629 F.2d 1146 (5th Cir. 1980), n. 1118. Azul-Pacifi co, Inc. v. City of Los Angeles, 973 F.2d 704 (9th Cir. 1992), n. 26. Baez v. He nnessy, 853 F.2d 73 (2d Cir. 1988), n. 648. Baines v. Masiello, 288 F. Supp. 2d 376 (W.D.N.Y. 2003), n. 591. Baker v. McCollan, 443 U.S. 137 (1979), nn. 25, 131 , 13435, 141. Baker v. Monroe Township, 50 F.3d 1186 (3d Cir. 1995), n. 710. Ball en v. City of Redmond, 466 F.3d 736 (9th Cir. 2006), n. 1156. Banks v. Yokemick, 177 F. Supp. 2d 239 (S.D.N.Y. 2001), n. 987. Barham v. Ramsey, 434 F.3d 565 (D. C. Cir. 2006), n. 710. Barnes v. Wright, 449 F.3d 709 (6th Cir. 2006), n. 441. B arrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), n. 758. Barrett v. Harwood, 189 F.3d 297 (2d Cir. 1999), n. 576. Barrett v. Orange County, 194 F.3d 341 (2d Cir. 1999), n. 717. Barrow v. Wethersfield Police Department, 66 F.3d 466 (2d Ci r. 1995), n. 962. Barry v. Barchi, 443 U.S. 55 (1979), n. 187. Bass v. Perrin, 1 70 F.3d 1312 (11th Cir. 1999), n. 166. Baxter v. Vigo County School Corp., 26 F. 3d 728 (7th Cir. 1994), n. 26. Bay Area Laundry & Dry Cleaning Pension Trust Fun d v. Ferbar Corp. of California, 522 U.S. 192 (1997), n. 968. Becker v. Kroll, 4 94 F.3d 904 (10th Cir. 2007), n. 372. Behrens v. Pelletier, 516 U.S. 299 (1996), nn. 825, 881, 882, 901, 904, 906, 907. Bell v. Burson, 402 U.S. 535 (1971), n. 157. Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989), nn. 1152, 1153. 210

Table of Cases Bell v. Wolfish, 441 U.S. 520 (1979), nn. 126, 228, 314, 325. Bell Atlantic Corp . v. Twombly, 127 S. Ct. 1955 (2007), nn. 4043, 4546. Bennett v. Goord, 343 F.3d 1 33 (2d Cir. 2003), n. 438. Bennett v. Pippin, 74 F.3d 578 (5th Cir. 1996), n. 69 7. Bernard v. County of Suffolk, 356 F.3d 495 (2d Cir. 2004), n. 777. Bettencour t v. Board of Registration, 904 F.2d 772 (1st Cir. 1990), n. 772. Biggs v. Meado ws, 66 F.3d 56 (4th Cir. 1995), n. 596. Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002), n. 282. Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16 (1st Cir. 2006 ), n. 710. Blackman v. District of Columbia, 397 F. Supp. 2d 12 (D.D.C. 2005), n . 1148. Blackman v. New York City Transit Authority, 491 F.3d 95 (2d Cir. 2007), n. 420. Blake v. City of New York, No. 05-Civ. 6652 (BSJ), 2007 U.S. Dist. LEXI S 49160 (S.D.N.Y. July 3, 2007), n. 293. Blanchard v. Bergeron, 489 U.S. 87 (198 9), n. 1163. Blessing v. Freestone, 520 U.S. 329 (1997), nn. 44448, 479, 48182, 48 8, 505. Blum v. Stenson, 465 U.S. 886 (1984), nn. 14, 1111, 1145, 1147, 1156, 11 57, 1167. Blum v. Yaretsky, 457 U.S. 991 (1982), nn. 547, 568, 556, 561, 566. BM W of North America, Inc. v. Gore, 517 U.S. 559 (1996), nn. 196, 1091, 1092, 1094 . Board of County Commissioners v. Brown, 520 U.S. 397 (1997), nn. 58586, 609, 61 1, 654, 69296, 698702. Board of Regents v. Roth, 408 U.S. 564 (1972), nn. 14243, 15 254, 177. Board of Regents of University of New York v. Tomanio, 446 U.S. 478 (19 80), n. 984. Bock Associates v. Chronister, 951 F. Supp. 969 (D. Kan. 1996), n. 162. Bogan v. City of Boston, 489 F.3d 417 (1st Cir. 2007), nn. 1172, 1176. Boga n v. Scott-Harris, 523 U.S. 44 (1998), nn. 81113, 81518. Bogle v. McClure, 332 F.3 d 1347 (11th Cir. 2003), n. 1095. Bonsignore v. City of New York, 683 F.2d 635 ( 2d Cir. 1982), n. 541. Bookman v. Shubzda, 945 F. Supp. 999 (N.D. Tex. 1996), n. 131. Booth v. Churner, 532 U.S. 731 (2001), n. 930. Bordanaro v. McLeod, 871 F. 2d 1151 (1st Cir. 1989), n. 655. Borges-Colon v. Roman Abreu, 438 F.3d 1 (1st Ci r. 2006), n. 829. Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991), n. 629. Boyd v . United States, 116 U.S. 616 (1886), n. 327. Braddy v. Florida Department of La bor & Employment Security, 133 F.3d 797 (11th Cir. 1998), n. 710. Bradley v. Fis her, 80 U.S. 335 (1871), nn. 755, 756. 211

Section 1983 Litigation Brandon v. Holt, 469 U.S. 464 (1985), nn. 588, 599. Branti v. Finkel, 445 U.S. 5 07 (1980), nn. 40709. Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961), n. 990. Br een v. Texas A&M University, 485 F.3d 325 (5th Cir. 2007), n. 222. Brentwood Aca demy v. Tennessee Secondary School Athletic Assn, 531 U.S. 288 (2001), nn. 530, 5 42, 543, 577. Brigham City v. Stuart, 126 S. Ct. 1943 (2006), n. 332. Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), n. 1045. Briscoe v. LaH ue, 460 U.S. 325 (1983), nn. 80608. Brookings v. Clunk, 389 F.3d 614 (6th Cir. 20 04), n. 758. Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997), n. 166. Brosseau v. H augen, 543 U.S. 194 (2004), nn. 827, 837, 842, 862, 900. Browder v. City of Moab , 427 F.3d 717 (10th Cir. 2005), n. 1176. Brower v. County of Inyo, 489 U.S. 593 (1989), nn. 23839, 243, 267. Brown v. Hot, Sexy & Safer Products, Inc., 68 F.3d 525 (1st Cir. 1995), n. 189. Brown v. Tombs, 139 F.3d 1102 (6th Cir. 1998), n. 9 36. Brown v. Western Railway of Alabama, 338 U.S. 294 (1949), n. 96. Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources, 532 U .S. 598 (2001), nn. 1138, 1139, 1140. Buckley v. Fitzsimmons, 509 U.S. 259 (1993 ), nn. 776, 78486, 788, 798802. Bulger v. United States Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995), n. 166. Burford v. Sun Oil Co., 319 U.S. 315 (1943), nn. 99 8, 1048, 105054. Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999), n. 602. Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994), n. 27. Burke v. Town of Wal pole, 405 F.3d 66 (1st Cir. 2005), n. 841. Burlington, City of, v. Dague, 505 U. S. 557 (1992), n. 1160. Burnett v. Grattan, 468 U.S. 42 (1984), n. 958. Burns v. County of King, 883 F.2d 819 (9th Cir. 1989), n. 38. Burns v. Reed, 500 U.S. 47 8 (1991), nn. 787, 78997. Burrell v. Powers, 431 F.3d 282 (7th Cir. 2005), n. 936 . Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), nn. 545, 546. But z v. Economou, 438 U.S. 478 (1978), n. 772. Caban v. Mohammed, 441 U.S. 380 (197 9), n. 1062. Cabrera v. Jakabovitz, 24 F.3d 372 (2d Cir. 1994), n. 1131. CaleroColon v. Betancourt-Lebron, 68 F.3d 1 (1st Cir. 1995), n. 965. California v. Gra ce Brethren Church, 457 U.S. 393 (1982), n. 1063. California v. Hodari D., 499 U .S. 621 (1991), n. 242. 212

Table of Cases Camilo-Robles v. Hoyos, 151 F.3d 1 (1st Cir. 1998), nn. 709, 710, 841. Camp v. G regory, 67 F.3d 1286 (7th Cir. 1995), n. 213. Campus-Orrego v. Rivera, 175 F.3d 89 (1st Cir. 1999), n. 1085. Canton, City of, v. Harris, 489 U.S. 378 (1989), nn . 58586, 607, 611, 612, 673 78, 68288. Carey v. Piphus, 435 U.S. 247 (1978), nn. 10 69, 1071, 107275. Carr v. Deeds, 453 F.3d 593 (4th Cir. 2006), n. 322. Carringer v. Rodgers, 331 F.3d 844 (11th Cir. 2003), n. 989. Carswell v. Borough of Homest ead, 381 F.3d 235 (3d Cir. 2004), n. 897. Carter v. Morris, 164 F.3d 215 (4th Ci r. 1999), nn. 707, 710. Carter v. Philadelphia, 181 F.3d 339 (3d Cir. 1999), n. 648. Castle Rock, Town of, v. Gonzales, 125 S. Ct. 2796 (2005), n. 161. Causey v . City of Bay City, 443 F.3d 524 (6th Cir. 2006), n. 829. Cefau v. Village of El k Grove, 211 F.3d 416 (7th Cir. 2000), n. 130. Cervantes v. Jones, 188 F.3d 805 (7th Cir. 1999), nn. 809, 810. Chalmers v. Los Angeles, 795 F.2d 1205 (9th Cir. 1986), n. 1176. Champion Produce, Inc. v. Ruby Robinson Co., 342 F.3d 1016 (9th Cir. 2003), n. 1173. Chan v. Wodnicki, 67 F.3d 137 (7th Cir. 1995), n. 906. Chap man v. Houston Welfare Rights Organization, 441 U.S. 600 (1979), nn. 25, 54. Cha rdon v. Fernandez, 454 U.S. 6 (1981), n. 980. Chew v. Gates, 27 F.3d 1432 (9th C ir. 1994), n. 690. Chicago, City of, v. International College of Surgeons, 522 U .S. 156 (1997), nn. 83, 90. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (19 78), n. 1122. Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999), n. 636. Ciambriel lo v. County of Nassau, 292 F.3d 307 (2d Cir. 2002), n. 38. Ciminillo v. Streich er, 434 F.3d 461 (6th Cir. 2006), n. 870. Clark v. Jeter, 486 U.S. 456 (1988), n . 1062. Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977), n. 18. Clay v. Conlee, 815 F.2d 1164 (8th Cir. 1987), n. 708. Cleavinger v. Saxner, 474 U.S. 193 (1985), n . 772. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), nn. 149, 152, 160, 183. Collins v. City of Harker Heights, 503 U.S. 115 (1992), nn. 132, 13941, 195, 196, 201, 21819, 22324, 61314, 681. Colombrito v. Kelly, 764 F.3d 122 ( 2d Cir. 1985), n. 1122. 213

Section 1983 Litigation Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), n. 710. Colorado River Water Cons ervation District v. United States, 424 U.S. 800 (1976), nn. 993, 994, 997, 1019 , 1029, 103238, 1045, 1058. Combs v. Wilkinson, 315 F.3d 548 (6th Cir. 2002), n. 710. Conley v. Gibson, 355 U.S. 41 (1957), nn. 30, 44. Conn v. Gabbert, 526 U.S. 286 (1999), n. 899. Connecticut v. Crotty, 346 F.3d 84 (2d Cir. 2003), n. 836. Connick v. Meyers, 461 U.S. 138 (1983), nn. 41718, 420, 428. Coon v. Town of Spri ngfield, 404 F.3d 683 (2d Cir. 2005), n. 598. Cooper v. Dillon, 403 F.3d 1208 (1 1th Cir. 2005), n. 617. Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th C ir. 1989), n. 225. Cornell v. Woods, 69 F.3d 1383 (8th Cir. 1995), n. 172. Cornf ield v. Consolidated High School District No. 230, 991 F.2d 1316 (7th Cir. 1993) , n. 688. Corpus v. Bennett, 430 F.3d 912 (8th Cir. 2005), n. 1070. Cotton v. Di strict of Columbia, 421 F. Supp. 2d 83 (D.D.C. 2006), n. 591. Cottone v. Jenne, 326 F.3d 1352 (11th Cir. 2003), n. 710. Cox v. Treadway, 75 F.3d 230 (6th Cir. 1 996), n. 962. Crawford-El v. Britton, 523 U.S. 574 (1998), nn. 18, 34, 830, 866, 867, 887, 889 93. Crossman v. Marcoccio, 806 F.2d 329 (1st Cir. 1986), n. 1173. Cummings v. Malone, 995 F.2d 817 (8th Cir. 1993), n. 311. Cunningham v. Gates, 2 29 F.3d 1271 (9th Cir. 2000), n. 710. Curley v. Klem, 499 F.3d 199 (3d Cir. 2007 ), nn. 897, 898. Currie v. Doran, 242 F.3d 905 (10th Cir. 2001), n. 33. D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992), n. 214. D.W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997), n. 213. Daimler Chrysler Co rp. v. Cuno, 126 S. Ct. 1854 (2006), n. 105. Dalrymple v. Reno, 334 F.3d 991 (11 th Cir. 2003), n. 710. Dang v. Cross, 422 F.3d 800 (9th Cir. 2005), n. 1082. Dan iels v. Williams, 474 U.S. 327 (1986), nn. 19, 20, 141, 144, 145, 188. Davidson v. Cannon, 474 U.S. 344 (1986), n. 20. Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), n. 689. Davis v. Rodriguez, 364 F.3d 424 (2d Cir. 2004), n. 333. Da vis v. Scherer, 468 U.S. 183 (1984), nn. 82728. Dawes v. Walker, 239 F.3d 489 (2d Cir. 2001), nn. 432, 436. Dawson v. Milwaukee Housing Authority, 930 F.2d 1283 (7th Cir. 1991), n. 216. 214

Table of Cases Deakins v. Monaghan, 484 U.S. 193 (1988), n. 1018. Dean v. Barber, 951 F.2d 1210 (11th Cir. 1992), n. 528. Dehertoghen v. City of Hemet, 159 F. Appx 775 (9th Cir . 2005), n. 1124. Dennis v. Higgins, 498 U.S. 439 (1991), nn. 11819. Dennis v. Sp arks, 449 U.S. 24 (1980), nn. 35, 569, 570, 571. DeShaney v. Winnebago County De partment of Social Services, 489 U.S. 189 (1989), nn. 132, 20712, 22021. Devenpeck v. Alford, 543 U.S. 146 (2004), n. 331. Dickerson v. McClellan, 37 F.3d 251 (8t h Cir. 1994), n. 907. Dishnow v. School District of Rib Lake, 77 F.3d 194 (7th C ir. 1996), n. 419. DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003), n. 1095. Distric t of Columbia v. Carter, 409 U.S. 418 (1973), n. 531. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), nn. 59, 69. Divane v. Krull Electri c Co., 319 F.3d 307 (7th Cir. 2003), n. 1113. Dixon v. Anderson, 928 F.2d 212 (6 th Cir. 1991), n. 966. Doe v. Cassel, 403 F.3d 986 (8th Cir. 2005), nn. 33, 34. Doe v. City of Roseville, 296 F.3d 431 (6th Cir. 2002), n. 710. Doe v. Claiborne County, 103 F.3d 495 (6th Cir. 1996), n. 214. Doe v. Hillsboro Independent Scho ol District, 113 F.3d 1412 (5th Cir. 1997), n. 214. Doe v. Metropolitan Police D epartment, 445 F.3d 460 (D.C. Cir. 2006), n. 16. Doe v. Sullivan County, 956 F.2 d 545 (6th Cir. 1992), n. 718. Doe v. Ward, 282 F. Supp. 2d 323 (W.D. Pa. 2003), n. 1112. Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), n. 166. Donovan, In r e, 877 F.2d 982 (D.C. Cir. 1989), n. 1151. Doran v. Salem Inn, Inc., 422 U.S. 92 2 (1975), n. 1017. Dorheim v. Sholes, 430 F.3d 919 (8th Cir. 2005), n. 844. Dots on v. Chester, 937 F.2d 920 (4th Cir. 1991), n. 633. Dotzel v. Ashbridge, 438 F. 3d 320 (3d Cir. 2006), n. 772. Dover Elevator Co. v. Arkansas State University, 64 F.3d 442 (8th Cir. 1995), n. 162. Dubner v. San Francisco, 266 F.3d 959 (9th Cir. 2001), nn. 334, 336. Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993) , n. 222. Edelman v. Jordan, 415 U.S. 651 (1974), n. 723. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), nn. 543, 544. Educadores Puertorriquenos en A ccion v. Hernandez, 367 F.3d 61 (1st Cir. 2004), nn. 32, 33. 215

Section 1983 Litigation Edwards v. Balisok, 520 U.S. 641 (1997), n. 924. Elk Grove Unified School Distri ct v. Newdow, 542 U.S. 1 (2004), n. 104. Elrod v. Burns, 427 U.S. 347 (1976), n. 406. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964) , nn. 100611. Erickson v. Pardus, 127 S. Ct. 2197 (2007), nn. 27, 28, 32, 4748. Er nst v. Rising, 427 F.3d 351 (6th Cir. 2005), nn. 740, 741. Estelle v. Gamble, 42 9 U.S. 97 (1976), nn. 22, 23, 131, 133, 210, 301, 37880. Evancho v. Fisher, 423 F .3d 347 (3d Cir. 2005), n. 33. Evans v. Jeff D., 475 U.S. 717 (1986), nn. 117475. Exxon Mobil Corp. v. Allapattah, 125 S. Ct. 2611 (2005), nn. 81, 82. Exxon Mobi l Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), nn. 62 66, 67, 69, 71. Fair Assessment in Real Estate v. McNary, 454 U.S. 100 (1981), n. 1063. Fair ley v. Luman, 281 F.3d 913 (9th Cir. 2002), n. 717. Farbotko v. Clinton County, 433 F.3d 204 (2d Cir. 2005), nn. 1147, 1150. Farmer v. Brennan, 511 U.S. 825 (19 94), nn. 210, 37577, 39299, 67980, 710. Farrar v. Hobby, 506 U.S. 103 (1992), nn. 1 12830, 1135. Febres v. Camden Board of Education, 445 F.3d 227 (3d Cir. 2006), n. 740. Federacion de Maestros de Puerto Rico v. Junta de Relaciones del Trabajo d e Puerto Rico, 410 F.3d 17 (1st Cir. 2005), n. 71. Felder v. Casey, 487 U.S. 131 (1988), nn. 93, 9596, 99, 941. Finley v. United States, 490 U.S. 545 (1989), n. 81. Flagg Bros. v. Brooks, 436 U.S. 149 (1978), nn. 16, 529, 549, 558, 562, 573. Flaherty v. Coughlin, 713 F.2d 10 (2d Cir. 1983), n. 437. Flood v. Braaten, 727 F.2d 303 (3d Cir. 1984), n. 1062. Florida Department of Health v. Florida Nursi ng Home Assn, 450 U.S. 147 (1981), n. 747. Folio v. City of Clarksburg, 134 F.3d 1211 (4th Cir. 1998), n. 1064. Ford v. Johnson, 362 F.3d 395 (7th Cir. 2004), n. 936. Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945), n. 723. For rester v. White, 484 U.S. 219 (1988), nn. 753, 754, 76870. Franco v. Kelly, 854 F .2d 584 (2d Cir. 1988), n. 431. Frederick v. Morse, 439 F.3d 1114 (9th Cir. 2006 ), n. 829. Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), n. 222. Frew v. Haw kins, 540 U.S. 431 (2004), n. 731. Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000 ), n. 321. 216

Table of Cases Gannett Fleming West, Inc. v. Village of Angel Fire, 375 F. Supp. 2d 1104 (D.N.M . 2004), n. 162. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), nn. 414, 425. Gar cia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), n. 717. Garner v. Memphi s Police Department, 8 F.3d 358 (6th Cir. 1993), n. 616. Garrett v. Fleming, 362 F.3d 692 (10th Cir. 2004), n. 962. Garry v. Geils, 82 F.3d 1362 (7th Cir. 1996) , n. 68. Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001) , nn. 1117, 1154. Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002), n. 439. Georgia v. McCollum, 505 U.S. 42 (1992), n. 543. Gerstein v. Pugh, 420 U.S. 103 (1975), n. 970. Getty Petroleum Marketing v. Capital Terminal Co., 391 F.3d 312 (1st Cir . 2004), n. 646. Giano v. Goard, 380 F.3d 670 (2d Cir. 2004), n. 934. Gibson v. Berryhill, 411 U.S. 564 (1973), n. 1028. Gilbert v. Homar, 520 U.S. 924 (1997), nn. 18485, 187. Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992), nn. 636, 67072 . Ginsberg v. Healey Car & Truck Leasing, 189 F.3d 268 (2d Cir. 1999), n. 564. G JR Investments, Inc. v. County of Escambia, 132 F.3d 1359 (11th Cir. 1998), n. 3 3. Goad v. Mitchell, 297 F.3d 497 (6th Cir. 2002), n. 33. Goldberg v. Kelly, 397 U.S. 254 (1970), n. 155. Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1 992), n. 602. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103 (1 989), nn. 120 21, 444, 456, 458. Gomez v. Toledo, 446 U.S. 635 (1980), nn. 16, 86 7. Gonzaga University v. Doe, 536 U.S. 273 (2002), nn. 443, 444, 483, 48587, 505 0 8. Goodman v. Praxair, Inc., 494 F.3d 458 (4th Cir. 2007), n. 963. Goss v. Lopez , 419 U.S. 565 (1975), n. 158. Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir. 199 7), n. 710. Graham v. Connor, 490 U.S. 386 (1989), nn. 25, 12326, 197, 22728, 23233 , 23536, 23839, 25258, 313, 315, 861. Graham v. Henderson, 89 F.3d 75 (2d Cir. 1996 ), nn. 431, 437. Graham v. Richardson, 403 U.S. 365 (1971), n. 100. Green v. Man sour, 474 U.S. 64 (1985), n. 729. 217

Section 1983 Litigation Greenawalt v. Indiana Department of Corrections, 397 F.3d 587 (7th Cir. 2005), n . 727. Greene v. Lindsey, 456 U.S. 444 (1982), n. 180. Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1 (1979), n. 165. Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991), n. 283. Gregory v. City of Louisville, 444 F.3d 725 (6th Cir. 2006), n. 710. Grendels Den, Inc. v. Larkin, 749 F.2d 945 (1st Cir. 1984), n. 1151. Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997), n. 166 . Groh v. Ramirez, 540 U.S. 551 (2004), nn. 827, 837. Gros v. City of Grand Prai rie, 181 F.3d 613 (5th Cir. 1999), nn. 629, 642. Gulfstream Aerospace Corp. v. M ayacamas Corp., 485 U.S. 271 (1988), n. 1047. Gutierrez v. San Antonio, 139 F.3d 441 (5th Cir. 1998), n. 290. Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553 (1s t Cir. 1989), nn. 581, 711. Guttman v. Khalsa, 446 F.3d 1027 (10th Cir. 2006), n n. 68, 71. Hafer v. Melo, 502 U.S. 21 (1991), nn. 517, 59294, 736, 737. Haines v. Kerner, 404 U.S. 519 (1972), n. 27. Halvorsen v. Baird, 146 F.3d 680 (9th Cir. 1998), n. 841. Hampton v. Chicago, 484 F.2d 602 (7th Cir. 1973), n. 788. Hanraha n v. Doling, 331 F.3d 93 (2d Cir. 2003), n. 166. Hanrahan v. Hampton, 446 U.S. 7 54 (1980), n. 1127. Hans v. Louisiana, 134 U.S. 1 (1890), n. 721. Harbor Motor C o. v. Arnell Chevrolet-Geo, 265 F.3d 638 (7th Cir. 2001), n. 1173. Hardin v. Str aub, 490 U.S. 536 (1989), n. 984. Haring v. Prosise, 462 U.S. 306 (1983), n. 945 . Harlow v. Fitzgerald, 457 U.S. 800 (1982), nn. 827, 867, 880, 884, 896. Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999), n. 965. Harris v. James, 127 F.3d 993 (11th Cir. 1997), nn. 478, 511. Harris County Commissioners Court v. Moore, 420 U.S. 77 (1975), n. 1001. Harrison v. NAACP, 360 U.S. 167 (1959), n. 1012. Hart v. City of Little Rock, 432 F.3d 801 (8th Cir. 2005), n. 222. Hartman v. Moore, 547 U.S. 250 (2006), nn. 18, 440, 441, 783. Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), n. 214. Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir. 1987), n. 710. Hays v. Jefferson County, 668 F.2d 869 (6th Cir. 1982), n. 710. Heck v. Humphrey, 512 U.S. 477 (1994), nn. 919, 969, 978, 1019. 218

Table of Cases Helling v. McKinney, 509 U.S. 25 (1993), nn. 38991. Hensley v. Eckerhart, 461 U.S . 424 (1983), nn. 1111, 1115, 1125, 113437, 1145, 1146, 1154, 1158. Hernandez v. Keane, 341 F.3d 137 (2d Cir. 2003), n. 710. Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30 (1994), n. 746. Hewitt v. Helms, 482 U.S. 755 (1987), n. 1126 . Hibbs v. Winn, 542 U.S. 88 (2004), n. 1065. Hicks v. Feeney, 850 F.2d 152 (2d Cir. 1988), n. 870. Hicks v. Miranda, 422 U.S. 332 (1975), n. 1017. Hill v. McDo nough, 126 S. Ct. 2096 (2006), nn. 32, 918. Hines v. Gomez, 108 F.3d 265 (9th Ci r. 1997), n. 172. Hoblock v. Albany County Board of Elections, 422 F.3d 77 (2d C ir. 2005), n. 64. Holiday Amusement Co. of Charleston, Inc. v. South Carolina, 4 0 F.3d 534 (4th Cir. 2005), n. 72. Hope v. Pelzer, 536 U.S. 730 (2002), nn. 827, 831, 83435, 843, 846, 899. Horn v. Madison County Fiscal Court, 22 F.3d 653 (6th Cir. 1994), n. 302. Horne v. Coughlin, 191 F.3d 244 (2d Cir. 1999), n. 900. Hou ston v. Norton, 215 F.3d 1172 (10th Cir. 2000), n. 1123. Howard v. Adkison, 887 F.2d 134 (8th Cir. 1989), n. 711. Howlett v. Rose, 496 U.S. 356 (1990), nn. 93, 97, 98, 99, 602. Hudgens v. NLRB, 424 U.S. 507 (1976), n. 559. Hudson v. McMilli an, 503 U.S. 1 (1992), nn. 126, 230, 244, 303, 305, 308, 30911, 40005. Hudson v. M ichigan, 126 S. Ct. 2159 (2006), nn. 1113, 1110. Hudson v. Palmer, 468 U.S. 517 ( 1984), nn. 144, 188, 910. Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), nn. 1014 , 1020, 1021, 1022. Hughes v. Rowe, 449 U.S. 5 (1980), nn. 27, 1122. Hunter v. B ryant, 502 U.S. 224 (1991), nn. 827, 856, 864, 876, 87779, 896. Hutto v. Finney, 437 U.S. 678 (1978), nn. 730, 732, 1169. Idaho v. Coeur dAlene Tribe of Idaho, 52 1 U.S. 261 (1997), n. 726. Imbler v. Pachtman, 424 U.S. 409 (1976), nn. 775, 7798 2. Ingle v. Yelton, 439 F.3d 191 (4th Cir. 2006), n. 251. Ingraham v. Wright, 43 0 U.S. 651 (1977), n. 215. INS v. Delgado, 466 U.S. 210 (1984), n. 242. Internat ional Action Center v. United States, 365 F.3d 20 (D.C. Cir. 2004), n. 710. Inyo County, California v. Paiute-Shoshone Indians, 538 U.S. 701 (2003), nn. 102, 10 3. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), nn. 33, 5053, 888, 889. 219

Section 1983 Litigation J.O. v. Alton School District, 909 F.2d 267 (7th Cir. 1990), n. 214. Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), nn. 530, 549, 551, 560, 562, 566, 567, 568. Jackson v. State of Alabama, 405 F.3d 1276 (11th Cir. 2005), n. 430. J acobsen v. Osborne, 133 F.3d 315 (5th Cir. 1998), n. 962. Jeanine B. v. Thompson , 877 F. Supp. 1268 (E.D. Wis. 1995), n. 478. Jenkins v. Missouri, 127 F.3d 709 (8th Cir. 1997), n. 1116. Jensen v. Lane County, 222 F.3d 570 (9th Cir. 2000), n . 841. Jett v. Dallas Independent School District, 491 U.S. 701 (1989), nn. 26, 619, 637, 638. Jinks v. Richland County, South Carolina, 538 U.S. 456 (2003), nn . 80, 8586, 88. Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002), n. 897. Johns on v. City of Detroit, 446 F.3d 614 (6th Cir. 2006), n. 511. Johnson v. De Grand y, 512 U.S. 997 (1994), n. 72. Johnson v. Fankel, 520 U.S. 911 (1997), n. 99. Jo hnson v. Jones, 515 U.S. 304 (1995), nn. 901, 902. Jones v. Baker, 71 F.3d 192 ( 5th Cir. 1995), n. 166. Jones v. Bock, 127 S. Ct. 910 (2007), nn. 32, 93740. Jone s v. Chicago, 856 F.2d 985 (7th Cir. 1988), n. 710. Jones v. Flowers, 126 S. Ct. 1708 (2006), n. 180. Jordan v. Fox, Rothschild, OBrien & Frankel, 20 F.3d 1250 ( 3d Cir. 1994), n. 840. Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994), n. 704. J ordan v. Time, Inc., 111 F.3d 102 (11th Cir. 1997), n. 1173. Juidice v. Vail, 43 0 U.S. 327 (1977), nn. 1014, 1022. Kalina v. Fletcher, 522 U.S. 118 (1997), nn. 753, 803, 809. Kamensky v. Dean, 148 F. Appx 878 (11th Cir. 2005), n. 634. Karr v . Smith, 774 F.2d 1029 (10th Cir. 1985), n. 338. Kaucher v. County of Bucks, 455 F.3d 418 (3d Cir. 2006), n. 219. Kay v. Ehrler, 499 U.S. 432 (1991), n. 1144. K enmen Engineering v. City of Union, 314 F.3d 468 (10th Cir. 2002), n. 68. Kenny A. ex rel. Winn v. Perdue, 454 F. Supp. 2d 1260 (N.D. Ga. 2006), n. 1148. Kentuc ky v. Graham, 473 U.S. 159 (1985), nn. 58890, 594, 599. Kentucky Department of Co rrections v. Thompson, 490 U.S. 454 (1989), n. 148. Kerotest Manufacturing. Co. v. C-O Two Fire Equipment Co., 342 U.S. 180 (1952), n. 1035. Kerr v. Lyford, 171 F.3d 330 (5th Cir. 1999), n. 372. Kikumura v. Osagie, 461 F.3d 1269 (10th Cir. 2006), n. 28. 220

Table of Cases Killinger v. Johnson, 389 F.3d 765 (7th Cir. 2004), nn. 620, 634. King v. Macri, 993 F.2d 294 (2d Cir. 1993), nn. 1085, 1087. Kolstad v. American Dental Assn, 52 7 U.S. 526 (1999), n. 1084. Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 200 4), nn. 64, 68. Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982), n. 9 46. Kujawski v. Board of Commissioners, 183 F.3d 734 (7th Cir. 1999), n. 629. L. W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), n. 225. Lake Carriers Assn v. MacMulla n, 406 U.S. 498 (1972), n. 1002. Lake Country Estates, Inc. v. Tahoe Regional Pl anning Agency, 440 U.S. 391 (1979), nn. 745, 746, 81920. Lance v. Dennis, 126 S. Ct. 1198 (2006), nn. 63, 64, 67, 73, 74. Lankford v. City of Hobart, 73 F.3d 283 (10th Cir. 1996), n. 710. Lapides v. Board of Regents, 535 U.S. 613 (2002), nn. 92, 74849. Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994), nn. 18, 334, 335, 110 1. Lassiter v. Department of Social Services, 452 U.S. 18 (1981), n. 1062. Lawre nce v. Reed, 406 F.3d 1224 (10th Cir. 2005), n. 836. Layne v. Sampley, 627 F.2d 12 (6th Cir. 1980), n. 541. Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003), n. 706. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 5 07 U.S. 163 (1993), nn. 29, 602, 703, 704. Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995), n. 544. Lee v. Edwards, 101 F.3d 805 (2d Cir. 1996) , n. 1095. Lee v. Sandberg, 136 F.3d 94 (2d Cir. 1997), n. 870. Lehman v. Lycomi ng County Childrens Services Agency, 458 U.S. 502 (1982), n. 1062. Lehr v. Robert son, 463 U.S. 248 (1983), n. 1062. Lewellen v. Metropolitan Government of Nashvi lle, 34 F.3d 345 (6th Cir. 1994), n. 217. Lewis v. City of Fort Collins, 903 F.2 d 752 (10th Cir. 1990), n. 886. Lewis v. Cowen, 165 F.3d 154 (2d Cir. 1999), n. 430. Liebson v. New Mexico Corrections Department, 73 F.3d 274 (10th Cir. 1996), n. 217. Lindsey v. City of Orrick, 491 F.3d 892 (8th Cir. 2007), n. 427. Lintz v. Skipski, 25 F.3d 304 (6th Cir. 1994), n. 213. Lippoldt v. Cole, 468 F.3d 1204 (10th Cir. 2006), nn. 101, 581, 1131, 1149. Little v. Streater, 452 U.S. 1 (198 1), n. 1062. Littrell v. Franklin, 388 F.3d 578 (8th Cir. 2004), nn. 832, 897. L ogan v. Zimmerman Brush Co., 455 U.S. 422 (1982), nn. 186, 912. 221

Section 1983 Litigation Logsdon v. Hains, 492 F.3d 334 (6th Cir. 2007), n. 340. Lohorn v. Michael, 913 F .2d 327 (9th Cir. 1998), n. 409. Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1 994), n. 1147. Los Angeles v. Heller, 475 U.S. 796 (1986), nn. 71314. Los Angeles , City of, v. Lyons, 461 U.S. 95 (1983), nn. 10716. Lowe v. Lestinger, 772 F.2d 3 08 (7th Cir. 1985), n. 758. Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982), nn. 533, 534, 569, 57476. Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189 (2001), n. 162. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), n. 171. Luthy v. Proulx, 46 4 F. Supp. 2d 69 (D. Mass. 2006), n. 705. Maciariello v. Sumner, 973 F.2d 295 (4 th Cir. 1992), n. 832. Madison v. Parker, 104 F.3d 765 (5th Cir. 1997), n. 170. Maher v. Gagne, 448 U.S. 122 (1980), n. 1132. Maine v. Thiboutot, 448 U.S. 1 (19 80), nn. 442, 1110. Malley v. Briggs, 475 U.S. 335 (1986), nn. 580, 809, 827, 83 7, 848, 84952. Mandel v. Doe, 888 F.2d 783 (11th Cir. 1989), n. 641. Manzano v. S outh Dakota Department of Social Services, 60 F.3d 505 (8th Cir. 1995), n. 844. Marek v. Chesney, 473 U.S. 1 (1985), n. 1171. Marti v. City of Maplewood, 57 F.3 d 680 (8th Cir. 1995), n. 38. Martinez v. California, 444 U.S. 277 (1980), nn. 5 78, 582. Martinez v. Winner, 771 F.2d 424 (10th Cir. 1985), n. 758. Maryland v. Pringle, 540 U.S. 366 (2003), n. 329. Mason v. Oklahoma Turnpike Authority, 182 F.3d 1212 (10th Cir. 1999), n. 1087. Mathews v. Eldridge, 424 U.S. 319 (1976), n n. 156, 18182. McCachren v. Blacklick Valley School District, 217 F. Supp. 2d 594 (W.D. Pa. 2002), n. 591. McClellan v. Carland, 217 U.S. 268 (1910), nn. 65, 103 6. McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002), n. 870. McCloske y v. Mueller, 446 F.3d 262 (1st Cir. 2006), n. 531. McConkie v. Nichols, 446 F.3 d 258 (1st Cir. 2006), n. 203. McCoy v. Hernandez, 203 F.3d 371 (5th Cir. 2000), n. 897. McDonald v. City of West Branch, 466 U.S. 284 (1984), n. 955. McDonald v. Hall, 610 F.2d 16 (1st Cir. 1979), n. 434. McDonald v. Haskins, 966 F.2d 292 (7th Cir. 1992), n. 244. McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), nn. 874 , 903. McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005), n. 579. 222

Table of Cases McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), n. 936. McKusick v. City of Me lbourne, 96 F.3d 478 (11th Cir. 1996), n. 616. McMillian v. Monroe County, 520 U .S. 781 (1997), nn. 523, 52527, 647, 64952. McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999), n. 27. McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006), n. 222. Medical Laundry Services v. Board of Trustees of the University o f Alabama, 906 F.2d 571 (11th Cir. 1990), n. 162. Mejia v. City of New York, 228 F. Supp. 2d 234 (E.D.N.Y. 2002), n. 598. Melton v. City of Oklahoma City, 879 F .2d 706 (10th Cir. 1989), n. 646. Memphis Community School District v. Stachura, 477 U.S. 299 (1986), nn. 1066, 1069, 1070, 107578. Memphis Light, Gas & Water Di vision v. Craft, 436 U.S. 1 (1978), n. 159. Menonite Board of Missions v. Adams, 462 U.S. 791 (1983), n. 180. Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005), n. 1131. Mertik v. Blalock, 983 F.2d 1353 (6th Cir. 1993), n. 192. Michig an v. DeFillippo, 443 U.S. 31 (1979), n. 329. Michigan v. Summers, 452 U.S. 692 (1981), nn. 345, 347. Middlesex County Ethics Committee v. Garden State Bar Assn, 457 U.S. 423 (1982), nn. 1015, 1023, 1024. Middlesex County Sewerage Authority v. National Sea Clammers Assn, 453 U.S. 1 (1981), nn. 443, 49091, 49497. Miele v. N ew York Teamsters Conference Pension & Retirement Fund, 831 F.2d 407 (2d Cir. 19 87), n. 1149. Migra v. Warren City School District, 465 U.S. 75 (1984), nn. 945, 951. Miller v. Bearn, 896 F.2d 848 (4th Cir. 1990), n. 710. Miller v. Lovett, 8 79 F.2d 1066 (2d Cir. 1989), n. 1079. Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997 ), n. 166. Milliken v. Bradley, 433 U.S. 267 (1977), n. 725. Mills v. Habluetzel , 456 U.S. 91 (1982), n. 1062. Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), n. 1132. Mireles v. Waco, 502 U.S. 9 (1991), nn. 755, 758, 76667. Missouri v. Jenkin s, 495 U.S. 33 (1990), n. 739. Missouri v. Jenkins, 491 U.S. 274 (1989), nn. 115 9, 1170. Mitchell v. Duval County School Board, 107 F.3d 837 (11th Cir. 1997), n . 225. Mitchell v. Forsyth, 472 U.S. 511 (1985), nn. 826, 883, 895, 896, 901. Mo nell v. Department of Social Services, 436 U.S. 658 (1978), nn. 2, 3, 89, 518, 58 8, 597, 600, 603, 626, 653, 706, 739, 956. Monroe v. City of Phoenix, 248 F.3d 8 51 (9th Cir. 2001), nn. 29193. 223

Section 1983 Litigation Monroe v. Pape, 365 U.S. 167 (1961), nn. 27, 540, 580, 908. Montgomery v. De Simo ne, 159 F.3d 120 (3d Cir. 1998), n. 340. Moor v. County of Alameda, 411 U.S. 693 (1973), n. 956. Moore v. Brewster, 96 F.3d 1240 (9th Cir. 1996), n. 774. Moore v. City of Harriman, 272 F.3d 769 (6th Cir. 2001), n. 596. Moore v. City of Popl ar Bluff, 404 F.3d 1043 (8th Cir. 2006), n. 576. Moore v. Nelson, 394 F. Supp. 2 d 1365 (M.D. Ga. 2005), n. 203. Moore v. Sims, 442 U.S. 415 (1979), nn. 1014, 10 21, 1028. Moose Lodge v. Irvis, 407 U.S. 163 (1972), n. 546. Moots v. Lombardi, 453 F.3d 1020 (8th Cir. 2006), n. 434. Moreland, Estate of, v. Dieter, 395 F.3d 747 (7th Cir. 2005), n. 302. Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993), n. 1095. Morningside Supermarket Co. v. New York State Department of Health, 432 F. Supp. 2d 334 (S.D.N.Y. 2006), n. 84. Morrisey v. Brewer, 408 U.S. 471 (1972) , n. 172. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S . 1 (1983), nn. 103031, 103941, 1045, 1046. Mount Healthy City School District Boa rd of Education v. Doyle, 429 U.S. 274 (1977), nn. 739, 740, 743, 744. Muehler v . Mena, 544 U.S. 93 (2005), nn. 34344, 346, 34850. Muhammad v. Close, 540 U.S. 749 (2004), n. 925. Muhammad v. Lockhart, 104 F.3d 1069 (8th Cir. 1997), n. 1131. M ullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), n. 180. Murray v. Earle, 405 F.3d 278 (5th Cir. 2005), nn. 579, 582. Nabozny v. Podlesny, 92 F. 3d 446 (7th Cir. 1996), n. 214. Nair v. Oakland County Community Mental Health A uthority, 443 F.3d 469 (6th Cir. 2006), n. 720. Napier v. Madison County, 238 F. 3d 739 (6th Cir. 2001), n. 302. National Collegiate Athletic Assn v. Tarkanian, 4 88 U.S. 179 (1988), nn. 557, 565, 572. National Private Truck Council, Inc. v. O klahoma Tax Commission, 515 U.S. 582 (1995), nn. 93, 99, 1063. National Railroad Passengers Corp. v. Morgan, 536 U.S. 101 (2002), n. 982. Nelson v. Campbell, 54 1 U.S. 637 (2004), n. 917. New Orleans Public Service, Inc. v. Council of New Or leans (NOPSI), 491 U.S. 350 (1989), nn. 1022, 1049, 105558. New York Life Distrib utors, Inc. v. Adherence Group, Inc., 72 F.3d 371 (3d Cir. 1995), n. 1045. 224

Table of Cases Newport, City of, v. Fact Concerts, Inc., 453 U.S. 247 (1981), nn. 604, 615, 625 , 697, 1088. Newton, Town of, v. Rumery, 480 U.S. 386 (1985), n. 1097. Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000), n. 213. Nivens v. Gilchrist, 444 F.3d 237 ( 4th Cir. 2006), nn. 590, 1028. Nix v. Norman, 879 F.2d 429 (8th Cir. 1989), n. 5 96. Norfleet v. Arkansas Department of Human Services, 989 F.2d 289 (8th Cir. 19 93), n. 213. Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994), n. 311. Northern In surance Co. of New York v. Chatham County, 126 S. Ct. 1689 (2006), n. 739. North ington v. Marin, 102 F.3d 1564 (10th Cir. 1996), n. 581. OBert v. Vargo, 331 F.3d 29 (2d Cir. 2003), n. 251. OBrien v. City of Greers Ferry, 873 F.2d 1115 (8th Ci r. 1989), n. 1173. OConnor v. Huard, 117 F.3d 12 (1st Cir. 1997), nn. 321, 326. OH are Truck Service, Inc. v. City of Northlake, 518 U.S. 712 (1996), nn. 41213. OShe a v. Littleton, 414 U.S. 488 (1974), n. 114. Ohio Civil Rights Commission v. Day ton Christian Schools, Inc., 477 U.S. 619 (1986), nn. 1025, 1026. Oklahoma City, City of, v. Tuttle, 471 U.S. 808 (1985), nn. 25, 675. Oliva v. Heller, 839 F.2d 37 (2d Cir. 1988), n. 774. Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), n. 166 . Orr v. Orr, 440 U.S. 268 (1979), n. 1062. Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), n. 610. Owen v. City of Independence, 445 U.S. 622 (1980), nn. 601, 615, 625, 697, 719. Owens v. Okure, 488 U.S. 235 (1989), n. 959. Palazzolo v. R hode Island, 533 U.S. 606 (2001), n. 943. Parratt v. Taylor, 451 U.S. 527 (1981) , nn. 19, 144, 188, 910, 914. Patsy v. Board of Regents, 457 U.S. 496 (1982), nn . 2, 93, 928, 1026. Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004), n. 177. Patton v. County of Kings, 857 F.2d 1379 (9th Cir. 1988), n. 1124. Pauk v. Board of Trustees of City University of New York, 654 F.2d 856 (2d Cir. 1981), n . 26. Paul v. Davis, 424 U.S. 693 (1976), nn. 132, 13638, 141, 149, 176, 177. Pay ne v. Milwaukee County, 288 F.3d 1021 (7th Cir. 2002), n. 1173. Payton v. New Yo rk, 445 U.S. 573 (1980), n. 332. Pearson v. Callahan, 128 S. Ct. 1702 (2008), n. 900. 225

Section 1983 Litigation Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), nn. 606, 618, 620, 62229, 636 , 697. Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2005), n. 222. Pennhurst State Sch ool & Hospital v. Halderman, 451 U.S. 1 (1981), nn. 447, 449 55, 478. Pennhurst S tate School & Hospital v. Halderman, 465 U.S. 89 (1984), nn. 73335. Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546 (1986), n. 1157. Pennzoil Co. v . Texaco Inc., 481 U.S. 1 (1987), nn. 1014, 1022, 1028. People for Ethical Treat ment of Animals v. Gittens, 396 F.3d 416 (D.C. Cir. 2005), nn. 519, 739. Personn el Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979), n. 21. Phillip s, Estate of, v. City of Milwaukee, 123 F.3d 586 (7th Cir. 1997), n. 290. Philli ps, Estate of, v. District of Columbia, 455 F.3d 397 (D.C. Cir. 2006), n. 219. P ickering v. Board of Education, 391 U.S. 563 (1968), nn. 41516, 42627. Pickett v. Brown, 462 U.S. 1 (1983), n. 1063. Pickrel v. City of Springfield, 45 F.3d 1115 (7th Cir. 1995), n. 541. Pierson v. Ray, 386 U.S. 547 (1967), nn. 755, 75961. Pik e v. City of Mission, 731 F.2d 655 (10th Cir. 1984), n. 981. Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995), nn. 221, 222. Pineda v. City of Houston, 291 F.3d 325 (5th Cir. 2002), nn. 66769. Pitchell v. Callahan, 13 F.3d 545 (2d Cir. 1994), n. 541. Plyler v. Doe, 457 U.S. 202 (1982), n. 100. Poe v. Haydon, 853 F.2d 418 (6th Cir. 1988), n. 710. Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002), nn. 709, 710. Polk County v. Dodson, 454 U.S. 312 (1981), nn. 535, 536, 537. Porter v. Nu ssle, 534 U.S. 516 (2002), nn. 93132. Powell v. Alexander, 391 F.3d 1 (1st Cir. 2 004), n. 1083. Powers v. Hamilton County Public Defender Commission, 501 F.3d 59 2 (6th Cir. 2007), n. 537. Pratt v. Rowland, 65 F.3d 802 (9th Cir. 1995), n. 172 . Preiser v. Rodriguez, 411 U.S. 475 (1973), n. 915. Presley v. City of Benbrook , 4 F.3d 405 (5th Cir. 1993), n. 897. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993), nn. 75052. Pulliam v. Allen, 466 U.S. 522 (1984), n. 771. Quackenbush v. Allstate Insurance Co., 517 U.S. 706 (1996), nn. 105960. Quern v. Jordan, 440 U.S. 332 (1979), nn. 2, 722. Quilloin v. Walcott , 434 U.S. 246 (1978), n. 1062. 226

Table of Cases Quinn v. Monroe County, 330 F.3d 1320 (11th Cir. 2003), n. 634. Quintana v. Jenn e, 414 F.3d 1306 (11th Cir. 2005), n. 1122. Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005), nn. 131, 340. Rahn v. Hawkins, 464 F.3d 813 (8th C ir. 2006), nn. 29192. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 ( 1941), nn. 995, 1000. Ramirez v. Arlequin, 447 F.3d 19 (1st Cir. 2006), n. 162. Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), n. 1120. Rancho Palos Verdes, City of, v. Abrams, 544 U.S. 113 (2005), nn. 443, 488, 489, 50305. Randall v. Prince Georges County, 302 F.3d 188 (4th Cir. 2002), n. 710. Rankin v. Evans, 133 F.3d 1 425 (11th Cir. 1998), nn. 334, 337. Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir. 1993), n. 311. Rankin v. McPherson, 483 U.S. 378 (1987), n. 429. Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001), nn. 43233, 435. Rawlings v. Ray, 312 U.S. 96 (1941) , n. 968. Raygor v. Regents of University of Minnesota, 534 U.S. 533 (2002), nn. 85, 87. Raysor v. Port Authority, 768 F.2d 34 (2d Cir. 1985), n. 339. Reasonove r v. St. Louis County, 447 F.3d 569 (8th Cir. 2006), nn. 38, 778. Redondo-Borges v. United States Department of Housing & Urban Development, 421 F.3d 1 (1st Cir . 2005), n. 162. Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), n. 222. Reel v. Arkansas Department of Corrections, 672 F.2d 693 (8th Cir. 1982), n. 1133. Rege nts of the University of California v. Doe, 519 U.S. 425 (1997), nn. 723, 741. R endell-Baker v. Kohn, 457 U.S. 830 (1982), nn. 547, 555, 56668. Revere, City of, v. Massachusetts General Hospital, 463 U.S. 239 (1983), nn. 298 300. Revis v. Mel drum, 489 F.3d 273 (6th Cir. 2007), n. 576. Richardson v. McKnight, 521 U.S. 399 (1997), nn. 838, 841. Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), n. 237. R ivas v. City of Passaic, 365 F.3d 181 (3d Cir. 2004), n. 584. Riverside, City of , v. McLaughlin, 500 U.S. 44 (1981), n. 970. Riverside, City of, v. Rivera, 477 U.S. 561 (1986), nn. 116162. Rizzo v. Goode, 423 U.S. 362 (1976), nn. 114, 710. R oberson v. Giuliani, 346 F.3d 75 (2d Cir. 2003), nn. 1142, 1143. Roberts v. City of Shreveport, 397 F.3d 287 (5th Cir. 2005), n. 710. Robertson v. Wegmann, 436 U.S. 584 (1978), nn. 986, 988. 227

Section 1983 Litigation Robinson v. District of Columbia, 403 F. Supp. 2d 39 (D.D.C. 2005), n. 521. Roch e v. John Hancock Mutual Life Insurance Co., 81 F.3d 249 (1st Cir. 1996), n. 532 . Rochin v. California, 342 U.S. 165 (1952), n. 317. Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988), n. 710. Rodriguez-Marin v. Rivera-Gonzales, 438 F.3d 7 2 (1st Cir. 2006), n. 898. Rojas v. Alexanders Department Store, Inc., 924 F.2d 4 06 (2d Cir. 1990), n. 598. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), n. 58. Rosewell v. La Salle National Bank, 450 U.S. 503 (1981), n. 1063. Roska v. Sneddon, 437 F.3d 964 (10th Cir. 2006), n. 870. Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991), n. 18. Rutan v. Republican Party of Illinois, 497 U.S. 62 ( 1990), nn. 41011. Sacramento, County of, v. Lewis, 523 U.S. 833 (1998), nn. 132, 196200, 202, 232, 234, 240, 244, 263, 31619, 899. Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996), nn. 28485. Samuels v. Mackell, 401 U.S. 66 (1971), nn. 1014, 1015. Sa n Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U.S. 522 (1987), n. 557. San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), nn. 94445, 948, 952. S andin v. Conner, 515 U.S. 472 (1995), nn. 16365, 166. Santiago v. New York State Department of Correctional Services, 945 F.2d 25 (2d Cir. 1991), n. 26. Santosky v. Kramer, 455 U.S. 745 (1982), n. 1062. Saucier v. Katz, 533 U.S. 194 (2001), nn. 124, 255, 296, 826, 827, 833, 837, 842, 860, 862, 863, 865, 899, 900. Schaff er v. Weast, 546 U.S. 49 (2005), n. 18. Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), n. 34. Scott v. Harris, 127 S. Ct. 1769 (2007), nn. 234, 243, 247, 25965, 26781, 289, 295, 297, 899, 900. Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), n n. 250, 251. Scott v. Stansfield, L.R. 3 Ex. 220 (1868), n. 761. Scott v. Taylor , 405 F.3d 1251 (11th Cir. 2005), n. 824. Sealey v. Giltner, 197 F.3d 578 (2d Ci r. 1999), n. 166. Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996), n. 222. Semino le Tribe v. Florida, 517 U.S. 44 (1996), n. 721. Shaw v. Leatherberry, 706 N.W. 2d 299 (Wis. 2005), n. 18. Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), nn. 707, 710. Shehee v. Luttrell, 199 F.3d 295 (6th Cir. 1999), n. 710. 228

Table of Cases Shelley v. Kraemer, 334 U.S. 1 (1948), n. 571. Sherman v. Four County Counseling Center, 987 F.2d 397 (7th Cir. 1993), n. 841. Shmueli v. City of New York, 424 F.3d 231 (2d Cir. 2005), n. 777. Sibley v. Lando, 437 F.3d 1067 (11th Cir. 2005) , n. 758. Siegert v. Gilley, 500 U.S. 226 (1991), nn. 867, 899. Sims, Estate of, v. County of Bureau, 506 F.3d 509 (7th Cir. 2007), n. 53. Singer v. Fulton Coun ty Sheriff, 63 F.3d 110 (2d Cir. 1995), n. 328. Singletary v. Pennsylvania Depar tment of Corrections, 266 F.3d 186 (3d Cir. 2001), n. 963. Singleton v. Wulff, 4 28 U.S. 106 (1976), n. 106. Skokomish Indian Tribe v. United States, 410 F.3d 50 6 (9th Cir. 2005), n. 103. Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), n. 441. Slade v. Hampton Roads Regional Jail, 407 F.3d 243 (4th Cir. 200 5), n. 30. Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), nn. 290, 294. S mith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816 (197 7), n. 1062. Smith v. Philadelphia Housing Authority, 107 F.3d 223 (3d Cir. 1997 ), n. 1147. Smith v. Robinson, 468 U.S. 992 (1984), nn. 489, 499, 500, 501. Smit h v. Wade, 461 U.S. 30 (1983), n. 1081. Smith, Estate of, v. Marasco, 430 F.3d 1 40 (3d Cir. 2005), n. 222. Smith, Estate of, v. Marasco, 318 F.3d 497 (3d Cir. 2 003), n. 341. Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990), n. 805. Sole v. W yner, 127 S. Ct. 2188 (2007), n. 1142. Sorlucco v. New York City Police Departme nt, 971 F.2d 864 (2d Cir. 1992), nn. 65664, 666. Sosna v. Iowa, 419 U.S. 393 (197 5), n. 1062. South Camden Citizens in Action v. New Jersey Department of Environ mental Protection, 274 F.3d 771 (3d Cir. 2001), n. 511. Speer v. City of Wynne, 276 F.3d 980 (8th Cir. 2002), n. 717. Spencer v. Kemna, 523 U.S. 1 (1998), n. 92 6. Spiller v. Texas City, 130 F.3d 162 (5th Cir. 1997), n. 705. St. Hilaire v. C ity of Laconia, 71 F.3d 20 (1st Cir. 1995), n. 286. St. Louis, City of, v. Prapr otnik, 485 U.S. 112 (1988), nn. 605, 606, 618, 619, 630 33, 635, 636, 639, 661. S t. Louis, City of, v. Praprotnik, 798 F.2d 1168 (8th Cir. 1986), n. 631. Stanley v. Illinois, 405 U.S. 645 (1972), n. 1062. Star Distributors Ltd. v. Marino, 61 3 F.2d 4 (2d Cir. 1980), n. 824. 229

Section 1983 Litigation State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), nn. 1091, 1092, 1093, 1094. State Police Litigation, In re, 88 F.3d 111 (2d Cir. 19 96), n. 870. Steele v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003) , n. 936. Steffel v. Thompson, 415 U.S. 452 (1974), n. 1017. Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), n. 541. Stephenson v. Doe, 332 F.3d 68 (2d Cir. 2 003), n. 897. Stevens, Estate of, v. City of Green Bay, 105 F.3d 1169 (7th Cir. 1997), nn. 211, 222. Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007), n. 53. St one v. Powell, 428 U.S. 465 (1976), n. 949. Stoneking v. Bradford Area School Di strict, 882 F.2d 720 (3d Cir. 1989), n. 215. Stoner v. Wisconsin Department of A griculture, 50 F.3d 481 (7th Cir. 1995), n. 738. Stump v. Sparkman, 435 U.S. 349 (1978), nn. 755, 756, 757, 758, 76265. Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227 (1st Cir. 2007), n. 836. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), n. 1067. Sullivan v. School Board of Pinellas County, 773 F.2d 1182 (11th Cir. 1985), n. 1122. Supreme Court of Virginia v. Consumers Union of the United States, 446 U.S. 719 (1980), nn. 812, 82124. Surplus Store & Exchange , Inc. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991), n. 616. Suter v. Artist M., 503 U.S. 347 (1992), nn. 443, 47172, 47578, 505. Swiecicki v. Delgado, 463 F.3 d 489 (6th Cir. 2006), n. 441. Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002) , n. 31. System Management, Inc. v. Loiselle, 154 F. Supp. 2d 195 (D. Mass. 2001 ), n. 1114. Tapalian v. Tusino, 377 F.3d 1 (1st Cir. 2004), nn. 1087, 1095. Tarp ley v. Greene, 684 F.2d 1 (D.C. Cir. 1982), n. 26. Tarter v. Rauback, 742 F.3d 9 77 (6th Cir. 1984), n. 1122. Teller v. Fields, 280 F.3d 69 (2d Cir. 2000), n. 16 7. Tennessee v. Garner, 471 U.S. 1 (1985), nn. 124, 24549, 266, 686. Tenney v. Br andhove, 341 U.S. 367 (1951), nn. 811, 812. Terry v. Adams, 345 U.S. 461 (1953), n. 550. Terry v. Ohio, 392 U.S. 1 (1968), n. 241. Tesch v. City of Green Lake, 157 F.3d 465 (7th Cir. 1998), n. 323. Texas State Teachers Assn v. Garland Indepen dent School District, 489 U.S. 782 (1989), n. 1125. 230

Table of Cases Thelma D. v. Board of Education, 934 F.2d 929 (8th Cir. 1991), n. 688. 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir. 2003), n. 1028. Thomas v. Independen ce Township, 463 F.3d 285 (3d Cir. 2006), nn. 33, 867. Thore v. Howe, 466 F.3d 1 73 (1st Cir. 2006), n. 130. Three Rivers Center for Independent Living v. Housin g Authority of Pittsburgh, 382 F.3d 412 (3d Cir. 2004), n. 512. Tinker v. Beasle y, 429 F.3d 1324 (11th Cir. 2005), n. 829. Toms v. Taft, 338 F.3d 519 (6th Cir. 2003), n. 1142. Torress-Rivera v. Calderon-Serra, 412 F.3d 205 (1st Cir. 2005), n. 813. Toussie v. Powell, 323 F.3d 178 (2d Cir. 2003), n. 841. Tower v. Glover, 467 U.S. 914 (1984), n. 537. Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999), n. 582. Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983), n. 27. Trainor v. He rnandez, 431 U.S. 434 (1977), nn. 1014, 1022. Troxel v. Granville, 530 U.S. 57 ( 2000), n. 1062. Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3d Ci r. 2002), n. 1142. Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10t h Cir. 1985), n. 991. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478 (1988), n. 180. Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055 (9t h Cir. 2006), nn. 1122, 1176. Twin City Fire Insurance Co. v. Adkins, 400 F.3d 2 93 (6th Cir. 2005), n. 72. TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 (1993), n. 1087. United Mine Workers v. Gibbs of America, 383 U.S. 715 (1966), nn. 76, 78. United States v. Classic, 313 U.S. 299 (1946), n. 540. Unit ed States v. Kubrick, 444 U.S. 111 (1979), n. 966. United States v. Lanier, 520 U.S. 259 (1997), nn. 232, 831. United States v. Leon, 468 U.S. 897 (1984), nn. 8 52, 853. United States v. Mendenhall, 446 U.S. 544 (1980), n. 242. United States v. Tarpley, 945 F.2d 806 (5th Cir. 1991), n. 541. United States v. Utah Constru ction Mining Co., 384 U.S. 394 (1966), n. 954. United States v. Walsh, 194 F.3d 37 (2d Cir. 1999), n. 322. United States v. Washington, 813 F.2d 1020 (9th Cir. 1987), n. 1132. University of Tennessee v. Elliott, 478 U.S. 788 (1986), nn. 9535 4. Untalan v. City of Lorain, 430 F.3d 312 (6th Cir. 2005), n. 295. Ursic v. Bet hlehem Mines, 719 F.2d 670 (3d Cir. 1983), n. 1153. Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), n. 1113. 231

Section 1983 Litigation Valance v. Wisel, 110 F.3d 1269 (7th Cir. 1997), n. 18. Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), n. 322. Varrone v. Bilotti, 123 F.3d 75 (2d Cir. 199 7), n. 870. Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692 (6th Cir. 1996), n. 840. Venegas v. Mitchell, 495 U.S. 82 (1990), n. 1164. Veri zon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S. 635 (2002) , nn. 75, 726. Vernonia School District v. Acton, 515 U.S. 646 (1995), n. 214. V illage of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), n. 21. Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), n. 870. Vi tek v. Jones, 445 U.S. 480 (1980), nn. 150, 179. Vives v. City of New York, 524 F.3d 346 (2d Cir. 2008), n. 616. Voyticky v. Village of Timberlake, 412 F.3d 669 (6th Cir. 2005), n. 131. Wagner v. Bay City, 227 F.3d 316 (5th Cir. 2000), n. 3 02. Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007), nn. 341, 829. Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), nn. 648, 678. Walker v. Rowe, 791 F.2d 5 07 (7th Cir. 1986), n. 219. Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002), n n. 32, 39, 936. Wallace v. Adkins, 115 F.3d 427 (7th Cir. 1997), n. 217. Wallace v. Kato, 127 S. Ct. 1091 (2007), nn. 372, 920, 921, 923, 964, 966, 967, 968, 97 178, 98485, 1019. Walton v. Alexander, 44 F.3d 1297 (5th Cir. 1995), nn. 211, 214. Ward v. Hickey, 996 F.2d 448 (1st Cir. 1994), n. 1122. Warlik v. Cross, 969 F.2 d 303 (7th Cir. 1992), n. 873. Warner v. Orange County Department of Probation, 115 F.3d 1068 (2d Cir. 1996), n. 581. Warth v. Seldin, 422 U.S. 490 (1975), n. 1 05. Washington v. Davis, 426 U.S. 229 (1976), n. 21. Washington v. Glucksberg, 5 21 U.S. 702 (1997), nn. 196, 200. Washington v. Harper, 494 U.S. 210 (1990), nn. 150, 182. Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), n. 1167. Waters v. Churchill, 511 U.S. 661 (1994), nn. 42124. Watkins v. City of Bat tle Creek, 273 F.3d 682 (6th Cir. 2001), n. 302. Watson v. Kansas City, 857 F.2d 690 (10th Cir. 1988), n. 665. Watts v. Florida International University, 495 F. 3d 1289 (11th Cir. 2007), n. 53. Wayne v. Jarvis, 197 F.3d 1098 (11th Cir. 1999) , n. 962. 232

Table of Cases Wax n Works v. City of St. Paul, 213 F.3d 1016 (8th Cir. 2000), n. 26. Webb v. Co unty Board of Education, 471 U.S. 234 (1985), nn. 1111, 1165. West v. Atkins, 48 7 U.S. 42 (1988), nn. 16, 534, 536, 538, 539, 543, 552, 553. West Virginia Unive rsity Hospitals v. Casey, 499 U.S. 83 (1991), n. 1166. Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996), n. 328. White v. Chambliss, 112 F.3d 731 (4th Cir. 1997), n. 213. White v. Frank, 855 F.2d 956 (2d Cir. 1988), n. 809. Whitford v. Boglino, 63 F.3d 527 (7th Cir. 1995), nn. 166, 171. Whitley v. Albers, 475 U.S. 312 (1986 ), nn. 126, 230, 303, 304, 30608, 312. Whren v. United States, 517 U.S. 806 (1996 ), n. 330. Wilder v. Virginia Hospital Assn, 496 U.S. 498 (1990), nn. 447, 464, 4 6770, 478, 509. Wilhelm v. City of Calumet City, 409 F. Supp. 2d 991 (N.D. Ill. 2 006), nn. 409, 521. Wilkinson v. Austin, 545 U.S. 209 (2005), nn. 17375, 182. Wil kinson v. Dotson, 544 U.S. 74 (2005), n. 916. Will v. Michigan Department of Sta te Police, 491 U.S. 58 (1989), nn. 2, 99, 102, 51516, 723. Williams v. Alabama St ate University, 102 F.3d 1179 (11th Cir. 1997), nn. 874, 875. Williams v. Butler , 863 F.2d 1398 (8th Cir. 1988), n. 621. Williams v. City of Carl Junction, 480 F.3d 871 (8th Cir. 2007), n. 441. Williams v. Hanover Housing Authority, 113 F.3 d 1294 (1st Cir. 1997), n. 1119. Williams v. Kaufman County, 352 F.3d 994 (5th C ir. 2003), n. 1095. Williamson County Regional Planning Commission v. Hamilton B ank, 473 U.S. 172 (1985), n. 942. Willingham v. Crooke, 412 F.3d 553 (4th Cir. 2 005), n. 897. Wilson v. Flynn, 429 F.2d 465 (4th Cir. 2005), n. 829. Wilson v. G arcia, 471 U.S. 261 (1985), nn. 24, 957. Wilson v. Layne, 526 U.S. 603 (1999), n n. 827, 845, 846, 847, 899, 900. Wilson v. Seiter, 501 U.S. 294 (1991), nn. 374, 38188. Wilson v. Town of Mendon, 294 F.3d 1 (1st Cir. 2002), n. 710. Wilton v. S even Falls Co., 515 U.S. 277 (1995), nn. 1042, 1044, 1045. Wimberly v. City of C lovis, 375 F. Supp. 2d 1120 (D.N.M. 2004), n. 600. Wisconsin Department of Corre ctions v. Schacht, 524 U.S. 381 (1998), n. 91. Wisniewski v. Kennard, 901 F.2d 1 276 (5th Cir. 1990), n. 244. Wolff v. McDonnell, 418 U.S. 539 (1974), nn. 151, 1 6970. Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), n. 222. 233

Section 1983 Litigation Wood v. Strickland, 420 U.S. 308 (1975), n. 772. Woodford v. Ngo, 126 S. Ct. 237 8 (2006), nn. 933, 934, 935. Woods v. Rondout Valley Central School District Boa rd of Education, 466 F.3d 232 (2d Cir. 2006), n. 742. Woodward v. City of Worlan d, 977 F.2d 1392 (10th Cir. 1992), n. 710. Wooley v. Maynard, 430 U.S. 705 (1977 ), n. 1017. Wooten v. Campbell, 49 F.3d 696 (11th Cir. 1995), n. 213. Worsham v. City of Pasadena, 881 F.2d 1336 (5th Cir. 1989), n. 640. Worthington v. Wilson, 8 F.3d 1253 (7th Cir. 1993), n. 962. Wortley v. Camplin, 333 F.3d 284 (1st Cir. 2003), n. 584. Wray v. City of New York, 490 F.3d 189 (2d Cir. 2007), n. 582. W right v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987), nn. 44546, 45963, 509, 514. Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001) , n. 936. Wright v. Lovin, 32 F.3d 538 (11th Cir. 1994), n. 214. Wulf v. City of Wichita, 883 F.2d 842 (10th Cir. 1989), nn. 64345. Wyatt v. Cole, 994 F.2d 1113 (5th Cir. 1993), n. 840. Wyatt v. Cole, 504 U.S. 158 (1992), n. 839. Yates v. Ci ty of Cleveland, 941 F.2d 444 (6th Cir. 1991), n. 906. Young v. City of Providen ce, 404 F.3d 4 (1st Cir. 2005), nn. 286, 584. Young v. County of Fulton, 160 F.3 d 899 (2d Cir. 1998), n. 130. Young v. Harper, 520 U.S. 143 (1997), n. 172. Youn g v. Murphy, 90 F.3d 1225 (7th Cir. 1996), n. 841. Young, Ex parte, 209 U.S. 123 (1908), nn. 724, 725, 1168. Youngberg v. Romeo, 457 U.S. 307 (1982), nn. 20405, 210. Younger v. Harris, 401 U.S. 37 (1971), nn. 996, 1013, 1014, 1017, 1022, 102 6, 1028. Yvonne L. v. New Mexico Department of Human Services, 959 F.2d 883 (10t h Cir. 1992), nn. 206, 213. Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000), n. 58 3. Zarcone v. Perry, 572 F.2d 52 (2d Cir. 1978), nn. 758, 1087. Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997), n. 1104. Zellner v. Summerlin, 494 F.3d 344 (2d C ir. 2007), nn. 864, 897. Ziemba v. Wezner, 366 F.3d 161 (2d Cir. 2003), n. 934. Zinermon v. Burch, 494 U.S. 113 (1990), nn. 14447, 178, 187, 19093, 913. Zuchel v. City & County of Denver, 997 F.2d 730 (10th Cir. 1993), n. 689. 234

Index abstention doctrines, 14, 15, 172, 17789 Burford, 177, 184, 18687 Colorado River, 177, 181, 18386 Pullman, 17779, 183, 184, 186 Younger, 177, 17983, 184 Adoption Ass istance and Child Welfare Act of 1980, 78 affirmative duty/duty to protect, 3944 functional custody, 4043 schoolchildren, 4142 Age Discrimination in Employment Act (ADEA), 9 Americans With Disabilities Act, 200 arbitration decisions, 166 nonpr eclusion, 166 arrests, 6063 probable cause, 25, 6164, 137, 138, 139, 170 warrantle ss, 25, 61, 62, 147, 160, 16971 see also searches attorneys fees, 3, 4, 82, 134, 1 58, 195, 196205 Civil Rights Attorneys Fees Awards Act of 1976, 4, 196 computation , 4, 20104 contingency fee agreement, 204 lodestar method, 4, 199, 20104 prevailin g party, 4, 195, 196201 section 1988, 3, 4, 134, 196201, 202, 204, 205 bifurcation of claims, 123 Bivens claim, 6, 10, 13, 74, 143, 153 Boren Amendment, 77, 78 Br ooke Amendment, 77 capacity of claim, 9, 9697, 99, 12328, 131 personal versus offi cial, 9, 10, 19, 84, 9697, 99 see also official capacity claims, personal capacit y claims causation, 5, 73, 74, 9495, 100, 113, 114, 116, 119 Civil Rights Act of 1871, 1, 2, 21, 132 Civil Rights Act of 1964, 9 Title VII, 9, 109, 173 civil rights compl aints, 3, 10, 13, 44, 203, 204 color of state law, 1, 2, 4, 6, 8, 24, 75, 86 88, 92, 97 government officials, 4, 8688, 97 physicians, 87 see also state action com mon-law remedies, 190 conditions of confinement (see prisoners rights cases) cons piracy claims, 1011, 26, 91, 136 constitutional claims, 82, 149, 150, 158 59, 17779 , 182, 188 constitutional rights, 1, 4, 7, 8, 14, 2474, 102, 11117, 175, 183, 19091 , 198 see also U.S. Constitution custom, policy, or practice, 1, 6, 97, 98, 99, 104, 105, 10812, 118, 120, 122 damages, 2, 3, 5, 22, 23, 76, 12527, 143, 159, 161, 171, 172, 181, 19093, 203 compensatory, 82, 98, 19092, 193 nominal, 19092, 198 pre sumed, 191 punitive, 10, 97, 99, 120, 190, 192 93 defendants, 8485, 94 acting unde r color of state law, 1, 8, 24, 75, 8688, 92 federal officials, 86 municipal enti ties, 2, 34, 84 person, defined, 84 private parties, 86, 14546 state entities, 84, 86 state officials, 26 suable persons, 84 supplemental party, 1718 235

Section 1983 Litigation deliberate indifference, 7, 37, 57, 59, 67 70, 99100, 11217 , 120 hiring, 99, 11617 prisoner care, 7, 57, 6769 training, 99, 11216 Department o f Housing and Urban Development (HUD), 77 Department of Justice (DOJ), 144, 145 Developmental Disabilities Assistance and Bill of Rights Act, 76 Dictionary Act of 1871, 21 discrimination, 7, 8, 9, 109, 110 age, 9 gender, 7, 109, 110 race, 7 , 8 diversity jurisdiction, 17 domestic relations doctrine, 177, 188 due process claims, 2874 defamation, 33 deprivation of life, liberty, or property, 2829, 35, 39 malicious prosecution, 6467 prisoners, 3033, 5758, 6770 procedural, 7, 24, 27, 28 , 29, 3336 professional judgment, 3839 protected property interest, 2930 seizure, 4 555 substantive, 7, 24, 26, 28, 3644 unreasonable force, 3738, 45, 47 60 Education o f the Handicapped Act (EHA), 81, 82 see also Individuals With Disabilities Educa tion Act Eighth Amendment, 7, 9, 12, 23, 24, 37, 45, 46, 5758, 6770, 113, 144 Elev enth Amendment, 1, 4, 14, 18, 19, 96, 12530, 193, 204 state liability/immunity, 1 9, 84, 97, 12530, 193 eminent domain, 90 enforcement, 7583, 101 of constitutional rights, 7, 24 (see also constitutional rights) of federal regulations, 83 preclu ded by Congress, 8082 England reservation, 17879 entity liability, 119, 120 excess ive force claims (see force) executive action, 37, 38, 141, 182 Fair Housing Act , 200 Family Educational Rights and Privacy Act (FERPA), 80 Federal Court Improv ements Act of 1996, 134 federal court jurisdiction (see jurisdiction) federal re gulations, 83 Federal Rules of Civil Procedure Rule 7, 10 Rule 8, 8, 9, 10, 11, 12, 13, 150 Rule 9, 8, 9 Rule 11, 154 Rule 12, 6, 10, 12, 151 Rule 15, 167, 168 Rule 26, 10, 153 Rule 42, 123 Rule 50, 109, 151 Rule 56, 152, 153, 154 Rule 68, 204, 205 Federal Rules of Evidence Article X, 106 Rule 201, 106 Rule 408, 194 Ru le 801, 10 federal statutes, enforcement of, 7583 federal right, 7, 7580 Federal W ater Pollution Control Act, 81 Fifth Amendment, 66 Grand Jury Clause, 66 236

Index First Amendment, 6, 24, 7074, 103, 190, 191 free speech retaliation claims, 25 26, 7173, 103 political patronage claims, 7071 prisoner retaliation, 25, 32, 737 4 force, 4560, 63, 69, 117, 14950 deadly, 4849, 50, 5256, 113 excessive, 25, 37, 45, 4660, 63, 69, 117, 123, 14950 malice, 5759, 69 pretrial detainee, 45, 46, 5960 pris oners, 45, 5758, 6970, 161 reasonableness, 45, 4756, 14950 seizure, 4546 Fourteenth A mendment, 1, 2, 7, 24, 26, 27, 28, 35, 38, 40, 4547, 59, 64, 86, 88 Due Process C lause, 24, 2729, 34 36, 39, 40, 42, 45, 46, 59, 60, 64, 65 Equal Protection Clause , 9 Fourth Amendment, 3, 46, 4757, 60 63, 6467, 111, 14750, 165, 16971 arrests and se arches, 3, 24, 25, 45, 47, 6063 malicious prosecution, 6467 qualified immunity, 14 750 unreasonable force, 4757, 63, 14950 free speech retaliation claims, 25, 7174, 11 2, 150 see also First Amendment prisoners, 25, 32, 7374 public employees, 25, 7173 , 112 full-faith and credit statute, 165, 166 functional custody, 4043 functional role of statute, 78 history of statute, 13 immunity, 4, 20, 84, 97, 98, 125, 12729 , 130, 13157, 193 absolute, 97, 119, 13142 judicial, 92, 13135 legislative, 14042 pr osecutorial, 98, 13539 immunity (continued) qualified, 4, 9, 10, 56, 63, 97, 119, 124, 14357 appeals, 15657 reasonableness standards, 14344, 146, 14750, 153 witness, 140 indemnification, 125, 128, 190, 194 individual capacity claims (see persona l capacity claims) individual liability (see liability) Individuals With Disabil ities Education Act (IDEA), 6, 81 judicial immunity (see immunity) jurisdiction, 4, 1320, 177, 179, 18385 federal, 1316, 177, 183, 184 preclusion, 14, 15, 16 remov al, 19 state, 1416, 1920 subject-matter, 1314, 15, 177 supplemental/pendent, 1719, 1 76, 194 jury instructions, 5, 38, 56, 155, 191, 192 re qualified immunity, 155 K u Klux Klan Act, 1 legislative action, 37, 141 liability, 94, 95, 97, 98130 direc t versus vicarious, 117 individual/personal, 9, 12324, 143 municipal, 25, 6, 9, 95 , 98118 inadequate hiring, 99, 11617 inadequate supervision, 99 inadequate trainin g, 99, 112 16 local custom or practice, 99, 10812 officially promulgated policy, 1 0001 pleading, 118 policy makers, 10108 punitive damages, 99, 120, 192 state, 12530 supervisory, 5, 11922 237

Section 1983 Litigation liberty interests, 29, 31, 32, 42 malicious prosecution, 6467, 136, 171 72 Marine Protection, Research, and Sanctuaries Act of 1972, 81 Me dicaid Act, 77 Boren Amendment, 77 medical care, 57 see also prisoners rights cas es mental patients, 29, 36, 3840, 42, 76, 146 municipal entities, 23, 4, 19, 8485, 98, 120, 123, 124, 193 versus state entities, 8485 municipal liability (see liabi lity) National Labor Relations Act, 7677 Native American tribes, 21, 183 notice-o f-claim rules, 20, 163 objective obviousness deliberate indifference standard, 1 1314 official capacity claims, 84, 9697, 125, 126 ParrattHudson doctrine, 3336, 158 personal capacity claims, 10, 19, 9697, 12324, 12728, 13142, 143, 15051, 192 immunity , 9, 10, 97, 12728, 131 42, 143, 15051 versus official capacity claims, 84, 9697, 99 , 131 plaintiffs, generally, 2123 pro se, 8, 201 standing requirements, 2123 plead ing, 813, 96, 118, 139, 150 municipal liability claims, 118 qualified immunity, 91 0, 150, 152 police officers, off-duty, 8788 policy makers, 98, 10108, 111, 113, 11 5, 116, 117, 123 state versus municipal, 84, 85 policy-making authority, 10107, 1 13, 115, 123 determined by state law, 103, 105, 106, 10708 officially promulgated , 10001 versus discretionary authority, 102 political patronage, 7071 preclusion o f rights enforcement, 80 82, 16566 arbitration decisions, 166 congressional intent , 8082 full-faith and credit statute, 165, 166 state court judgments, 165 PreiserH eck doctrine, 15860 pretrial detainee, 45, 46, 5960 excessive force claims, 25, 45 , 46, 5960 Prison Litigation Reform Act (PLRA), 150, 16163, 190, 195 exhaustion re quirement, 16163, 195 prisoners rights cases, 3033, 5960, 67 70, 144, 15859, 16163, conditions of confinement, 9, 67 70, 159, 161 excessive force claims, 25, 45, 57 58, 69, 161 exhaustion requirements, 15859, 16163, 195 liberty, 3033 medical care, 7, 12, 26, 57, 67, 87, 90 retaliation claims, 25, 32, 7374 private parties, 1, 4, 10, 30, 86, 88, 89, 91 92, 145 probable cause, 25, 48, 6164, 74, 137 39, 14850 prof essional judgment standard, 3839, 87 protected property interests, 27, 30, 33 pub lic schoolchildren, 30, 4142 qualified immunity (see immunity) 238

Index regulatory takings claims, 163 ripeness, 163 release-dismissal agreements, 190, 194 relief, 1, 36, 8, 1012, 26, 74, 84, 99, 151, 16061, 171, 179, 180, 186, 1 87, 190 95, 198, 199 see also damages declaratory, 1, 127, 134, 142, 180 indemnif ication, 194 injunctive, 1, 2, 22, 23, 126, 134, 142, 143, 180, 195 prisoners cla ims for, 195 prospective, 22, 23, 84, 126, 127, 134, 180, 188, 195, 204 removal jurisdiction, 19 retaliatory prosecution, 6, 74 rights enforceable, 2427, 7580, 828 3 procedural safeguards, 3336 ripeness, 16364 takings claims, 163 RookerFeldman doc trine, 4, 1417 schools, 30, 4142 public, 30, 4142, 93 private, 91 school board, 129 , 135 searches, 24, 6063, 88, 102, 111, 147, 148 probable cause, 63, 74, 138, 1485 0 warrants, 102, 111, 137, 138, 148 Secretary of Education, 80 Secretary of Heal th and Human Services, 78 shocks-the-conscience standard, 26, 3738, 43, 51, 59, S ocial Security Act, 79 Title IV-D, 79 standing, 2123 third-party standing, 22 sta te action, 10, 24, 8693, 185, 186 color of state law, 8688, 92 private parties, 10 , 8692, 14546 state action (continued) public function doctrine, 8990 political pri maries, 89 tests, 8893 state court jurisdiction (see jurisdiction) state-created danger, 4345 state law claims, 17, 19, 127, 163, 199 supplemental, 127, 163, 199 state liability (see liability) state remedies, 28, 15864 exhaustion, 1, 15864 adm inistrative, 16163 judicial, 158 statute of limitations, 160, 16774, 185 stigma-pl us doctrine, 33 subject-matter jurisdiction (see jurisdiction) summary judgment, 52, 5657, 74, 151 57 qualified immunity, 150, 15254, 15657 supervisory liability (s ee liability) supplemental jurisdiction (see jurisdiction) survivorship, 163, 16 7, 175 Tax Injunction Act, 20, 177, 18889 Telecommunications Act (TCA), 82 Title VII (see Civil Rights Act of 1964) tolling, 1819, 17374 U.S. Constitution Bill of Rights, 24, 26, 28, 37, 65, 66 Commerce Clause, 24 Dormant Commerce Clause, 24 S pending Clause, 83 Supremacy Clause, 24 see also Eighth, Eleventh, Fifth, First, Fourth, and Fourteenth Amendments wrongful death, 17576 239

The Federal Judicial Center Board The Chief Justice of the United States, Chair Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit Judge David O. Carter, U.S. District Court for the Central District of California Magistrat e Judge Karen Klein, U.S. District Court for the District of North Dakota Judge Loretta A. Preska, U.S. District Court for the Southern District of New York Jud ge Philip M. Pro, U.S. District Court for the District of Nevada Judge Stephen R aslavich, U.S. Bankruptcy Court for the Eastern District of Pennsylvania Judge W illiam B. Traxler, Jr., U.S. Court of Appeals for the Fourth Circuit James C. Du ff, Director of the Administrative Office of the U.S. Courts Director Judge Barb ara J. Rothstein Deputy Director John S. Cooke About the Federal Judicial Center The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. 620629), on th e recommendation of the Judicial Conference of the United States. By statute, th e Chief Justice of the United States chairs the Centers Board, which also include s the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference. The organization of the Center reflects its primary statutory mandates. The Education Division plans and produces education and training programs for judges and court staff, including satellite broadcasts , video programs, publications, curriculum packages for incourt training, and We b-based programs and resources. The Research Division examines and evaluates cur rent and alternative federal court practices and policies. This research assists Judicial Conference committees, who request most Center research, in developing policy recommendations. The Centers research also contributes substantially to i ts educational programs. The two divisions work closely with two units of the Di rectors Officethe Systems Innovations & Development Office and Communications Poli cy & Design Officein using print, broadcast, and online media to deliver educatio n and training and to disseminate the results of Center research. The Federal Ju dicial History Office helps courts and others study and preserve federal judicia l history. The International Judicial Relations Office provides information to j udicial and legal officials from foreign countries and assesses how to inform fe deral judicial personnel of developments in international law and other court sy stems that may affect their work.