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42 U.S.C. § 1983

42 U.S.C. § 1983. Every Person who Under Color of State Law Subjects or Causes to be Subjected Any Citizen or Other Person to the Deprivation of Any Rights, Privileges, or Immunities Secured by the Constitution and laws [of the United States] Shall be liable to the Party Injured in

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42 U.S.C. § 1983

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  1. 42 U.S.C. § 1983 • Every Person who • Under Color of State Law • Subjects or Causes to be Subjected • Any Citizen or Other Person to the • Deprivation of Any Rights, Privileges, or Immunities Secured by the • Constitution and laws [of the United States] • Shall be liable to the Party Injured in • Action at Law, Suit in Equity, etc….

  2. Some Basic Principles • Statute creates no substantive rights • merely creates remedy • no respondeat superior • concurrent jurisdiction in state & federal courts

  3. TWO KEY ELEMENTS OF 1983 CLAIM • Conduct Must Effect Deprivation of Right Secured by Federal Constitution or Laws • Virginia v. Moore (U.S. 2008) • Wilder v. Turner (10th Cir. 2007) • United States v. Laville (3d Cir. 2007) • Steen v. Myers (7th Cir. 2007) • Conduct Committed Under Color of State Law

  4. Under Color of State Law • Lugar v. Edmondson Oil Co (1982) (state action within meaning of 14th amdt. = “under color of law” for § 1983 purposes) • Brentwood Academy v. TennesseeSecondary School Athletic Ass’n (2001) (discussing different tests; finding state action on basis of “pervasive entwinement”)

  5. Under Color of State Law • Rosborough v. Management & Training Corporation (5th Cir. 2003) • Ibrahim v. Department of Homeland Sec. (9th Cir. 2008) • Arias v. U.S. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec. (D. Minn. 2008)

  6. Monroe v. Pape (U.S. 1961) • “under color of law” includes “misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”

  7. official capacity suit against entity no qualified immunity no punitive damages Individual vs. Official Capacity • individual capacity • $$ out of official’s pocket • qualified immunity • punitive damages available

  8. Individual vs. Official Capacity • Murphy v. Arkansas (8th Cir.) • Young Apartments v. Town of Jupiter (11th Cir. 2008) • Powell v. Alexander (1st Cir.) • Moore v. City of Harriman (6th Cir.) • Biggs v. Meadows (4th Cir.)

  9. Individual vs. Official Capacity • Petty v. County of Franklin, Ohio (6th Cir. 2007) • no personal capacity suit where no allegations of Sheriff’s direct involvement in beating or denial of medical care • no official capacity suit (suit v. County) where no evidence of official policy or custom

  10. Supervisory Liability • individual liability; no respondeat superior • where liability based on inaction, is constructive knowledge (should have known) enough? • Tardiff v. Knox County (D. Me. 2005) • Sheriff Davey disputes that he had actual knowledge of the unlawful custom and practice of strip searching detainees charged with misdemeanors without reasonable suspicion of concealing contraband or weapons. . . Regardless of his actual knowledge, the Court concludes that based on the undisputed evidence in the record he should have known that the practice was ongoing, and that, despite the change to the written policy in 1994 and the institution of new procedures in 2001, the practice had not been eliminated.

  11. Supervisory Liability • See Iqbal v. Hasty (2d Cir. 2007), cert. granted sub nom Ashcroft v. Iqbal • Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials

  12. 11th Amendment • local entities have no 11th Amdt. immunity • States/ state agencies/ state officials in official capacity will have 11th Amdt. immunity absent consent, waiver or valid abrogation • Congress did not abrogate states’ 11th Amdt. immunity through §1983 (Quern v. Jordan) • states/ state agencies/ state officials in official capacity are not “persons” under § 1983 (Will ) • no consent or waiver as to § 1983

  13. 11th Amendment • state official may be sued in individual capacity for damages (Hafer v. Melo ) • state official may be sued in official capacity to enjoin ongoing violation of federal right (Ex Parte Young )

  14. McMillian v. Monroe County (1997) • Sheriff in Alabama is state official when performing law enforcement function • Depending on state and function: • Sheriff may be state official • Sheriff may be county official • Sheriff may be independent (suable) office with County joined as necessary party (IL)

  15. McMillian v. Monroe County (1997) • Brewster v. Shasta County (9th Cir. 2001) (sheriff = county official) • Venegas v. County of L.A. (Cal. 2004) (sheriff = state official) • Most federal district courts in CA follow Brewster (See recent cases in outline) • But see Walker v. County of Santa Clara (N.D. Cal. 2005) (following Venegas)

  16. Recent Cases • Poleo-Keefe v. Bergeron (D. Vt. Aug. 28, 2008) • While Vermont sheriffs have been held to be state actors in other cases, their roles as state actors have been limited to law enforcement and security duties. . . Sheriff Bergeron's supervisory duties here were different in nature from his law enforcement duties. He was not performing the traditional state role of keeping the peace; rather, he was acting as a employee supervisor. . . .Therefore, Sheriff Bergeron acted as a County official and sovereign immunity does not apply.

  17. Recent Cases • Parker v. Bladen County (E.D.N.C. June 27, 2008) • Sheriff Bunn was proper defendant, not Bladen County, not Sheriff’s Dept., in suit alleging failure to train and supervise officers who used tasers on plaintiff • allegations are employment- and training related, and constitute personnel decisions or other law enforcement polices over which the Bladen County Sheriff (not Bladen County) maintains exclusive authority

  18. Recent Cases • Argandona v. Lake County Sheriff’s Department (N.D. Ind. Feb. 13, 2007) • The court concludes that the Lake County Sheriff's Department, when acting in its law enforcement capacity, is neither an arm of the State nor a mere extension of Lake County. Rather, the Department is a separate municipal entity and subject to suit under §1983

  19. Recent Cases • Gray v. Kohl(S.D. Fla. 2008) • The holding in Abusaid that a County Sheriff enforcing a county statute is not entitled to Eleventh Amendment immunity applies with equal force to a County Sheriff enforcing a state statute. • Here, there is no evidence that Sheriff Roth, the final policymaking authority in matters of law enforcement for Monroe County , ratified Officer Perez's arrests of the Gideons based on the fact that they were distributing Bibles within the school safety zone • Jones ex rel. Albert v. Lamberti (S.D. Fla. 2008) • The Sheriff is the final policymaker for the operation of the jails. The County does not control the Sheriff with respect to this function; therefore, the County cannot be liable under § 1983.

  20. Recent Cases • Youngs v. Johnson (M.D. Ga. 2008) • Sheriff has not, through Agreement with DOJ, sufficiently relinquished to Muscogee County his state-derived authority for the operation of the jail to the extent that he loses his Eleventh Amendment immunity • Because the Court finds that the sheriff is an arm of the county in providing medical care in a county jail, Sheriff Johnson is not entitled to Eleventh Amendment immunity • Under Georgia law, the provision of medical care to county inmates is a county function. The County can certainly delegate that function to the Sheriff, which the record establishes was done here, but when it does so, it does not relinquish its ultimate responsibility for that function. The Sheriff simply becomes the final policymaker for the County regarding the promulgation of appropriate policies and procedures for providing adequate medical care to inmates at the county jail

  21. Methods of Establishing Local Government Liability • Officially adopted policy • custom or practice • failure to train, supervise, discipline, adequately screen • attribution of decision or act of final policymaker to entity

  22. Formally Adopted Policy • Maddux v. Officer One (5th Cir. 2004) • Richards v. Janis (E.D. Wash. 2007) • Meir v. McCormick (D. Minn. 2007) • Rauen v. City of Miami (S.D. Fla. 2007) • Tardiff v. Knox County (D.Me. 2005)

  23. Whose policy is it?local government enforcing state law • Cooper v. Dillon (11th Cir. 2005) • Richman v. Sheahan (7th Cir. 2001) • Garner v. Memphis Police Dept. (6th Cir. 1993) • Vives v. City of New York (2d Cir. 2008)

  24. Whose policy is it?Inter-agency agreementsprivate prison/healthcare corps • Young v. City of Little Rock (8th Cir. 2001) • Ford v. City of Boston (D. Mass. 2001) • Deaton v. Montgomery County (6th Cir. 1993) • Sumlin v. Gibson (N.D. Ga. 2008) • Daniels v. Prison Health Serv. (M.D. Fla. 2006) • Martin v. CCA (W.D. Tenn. 2006) • Herrera v. County of Santa Fe (D.N.M. 2002)

  25. Custom or Usage • Lopez v. City of Houston (S.D. Tex. 2008) • Thomas v. Baca (C.D. Cal. 2007) • Jackson v. Marion County Sheriff’s Dep’t. (S.D. Ind. 2005) • Tardiff v. Knox County (D. Me. 2005)

  26. Custom or Usage • Code of Silence Cases • Baron v. Suffolk County Sheriff’s Dep’t. (1st Cir. 2005) • Blair v. City of Pomona (9th Cir. 2000) • Sharp v. Houston (5th Cir. 1999) • Jeffes v. Barnes (2d Cir. 2000)

  27. Custom or Usage • But see Garcetti v. Ceballos, 126 S.Ct. 1951 (2006) • When public employees make statements pursuant to their official duties, they are not speaking as citizens for 1st Amdt. purposes, and such speech may be sanctioned by employer [See Garcetti handout]

  28. Custom or Usage: Policymaker Must Have Notice • Constructive knowledge enough • Baron v. Suffolk County (1st Cir. 2005) • One incident not enough to give notice • Grieveson v. Anderson (7th Cir. 2008) • Thomas v. Chattanooga (6th Cir. 2005) • Even pattern not enough unless show policymaker had actual or constructive notice • Pineda v. Houston (5th Cir. 2002) • Latuszkin v. Chicago (7th Cir. 2001)

  29. Failure to have a written policy • Brumfield v. Hollins (5th Cir. 2008) • Brumfield places great weight on the fact that Sheriff Stringer had no written policies and procedures at the Old Jail similar to the ones at a nearby facility known as the ‘New Jail.’ • From this, she concludes that Sheriff Stringer implemented no policies at all. • validity of prison policies is not dependent on whether they are written or verbal. A policy is a policy. • verbal policies existed concerning inmate supervision and medical care, and Sheriff Stringer, Bryant, Louge, Hollins, and Thornhill all testified to that effect.

  30. Failure to Train, Discipline, etc. • City of Canton • deliberate indifference • Obvious need to train • constructive notice of need to train • See, e.g., Sornberger v. City of Knoxville (7th Cir. 2006)

  31. Failure to Train, Discipline, etc. • can’t be too obvious • Walker v. City of New York (2d Cir. 1992) • Atkins v. County of Riverside (9th Cir. 2005) • Carr v. Castle (10th Cir. 2003) • Hernandez v. Borough of Palisades Park Police Dep’t (3d Cir. 2003) • Barney v. Pulsipher (10th Cir. 1998)

  32. Obviousness Cases • Thompson v. Connick (5th Cir. Dec. 19, 2008) • Gregory v. City of Louisville (6th Cir. 2006) • Young v. Providence (1st Cir. 2005) • Brown v. Gray (10th Cir. 2000) • Allen v. Muskogee (10th Cir. 1997)

  33. Not so obvious • St. John v. Hickey (6th Cir. 2005) • Ross v. Town of Austin (7th Cir. 2003) • Febus-Rodriguez (1st Cir. 1994) • Gold v. City of Miami (11th Cir. 1998) • Lewis v. City of West Palm Beach (S.D. Fla. 2008)

  34. Constructive Notice Cases • Young v. Providence (1st Cir. 2005) • Olsen v. Layton Hills(10th Cir. 2002) • Beck v. Pittsburgh (3d Cir. 1996 ) • Vann v. New York (2d Cir. 1995)

  35. Jail suicide cases • Whitt v. Stephens County (5th Cir. 2008) • Short v. Smoot (4th Cir. 2006) • Gray v. City of Detroit (6th Cir. 2005) • Crocker v. County of Macomb (6th Cir. 2005) • Payne v. Churchich (7th Cir. 1998) • Cook v. Sheriff of Monroe County (11th Cir. 2005) • Tittle v. Jefferson County (11th Cir. 1994) • But see Wever v. Lincoln County (8th Cir. 2004) • Woodward v. CMS (7th Cir. 2004)

  36. “Bad Hiring/Screening” Cases • Bryan County (U.S. 1997) • single decision by final policymaker (Sheriff) • particular constitutional violation must be “plainly obvious consequence” of inadequate screening or hiring decision

  37. Post-Brown Cases • Hardeman v. Kerr County, Tex (5th Cir. 2007) • Whitewater v. Goss (10th Cir. 2006) • Doe v. Magoffin County Fiscal Court (6th Cir. 2006) • Crete v. Ciavola (1st Cir. 2005) • Estate of Davis v. City of North Richland Hills (5th Cir. 2005)

  38. Derivative Nature of Liability • City of Los Angeles v. Heller (1986) • Willis v. Neal (6th Cir. 2007) • Best v. Cobb County, Ga. (11th Cir. 2007) • Hicks v. Moore (11th Cir. 2005) • Young v. City of Providence (1st Cir. 2005) • Crocker v. County of Macomb (6th Cir. 2005) • Trigalet v. City of Tulsa (10th Cir. 2001)

  39. Liability Based on Conduct of Final Policymakers • Pembaur/Praprotnik/Jett • Who is Final Policymaker = Question of State Law • Generally, one whose decisions are not reviewable by another

  40. Liability Based on Conduct of Final Policymakers • Hampton Co. Nat. Sur., LLC v. Tunica County, Miss. (5th Cir. 2008) • Bruce v. Beary (11th Cir. 2007) • Ford v. County of Grand Traverse (6th Cir. 2008) • Harper v. City of Los Angeles (9th Cir. 2008)

  41. Liability Based on Conduct of Final Policymakers • Roe v. City of Waterbury (2d Cir. 2008) • Bolton v. City of Dallas (5th Cir. 2008) • Auriemma v. Rice (7th Cir. 1992) • Thomas v. Roberts (11th Cir. 2001) • Meyers v. Delaware County, Ohio (S.D. Ohio 2008)

  42. Liability Based on Conduct of Final Policymakers • But see Simmons v. Uintah Health Care Special District (10th Cir. 2007) • Actions taken by a municipality's final policymakers, even in contravention of their own written policies, are fairly attributable to the municipality and can give rise to liability.

  43. DeShaney : S/D/P & Affirmative Duty to Protect • DeShaney(1989) : no general affirmative duty to protect citizens from acts of private violence

  44. Exceptions • special relationship/custody cases • state-created danger cases • While State was aware of dangers Joshua faced, it played no part in creation of those dangers nor did State make him more vulnerable to those dangers

  45. Custody Cases • Jackson v. Schultz (6th Cir. 2005) • The “custody exception” triggers a constitutional duty to provide adequate medical care to incarcerated prisoners, those involuntarily committed to mental institutions, foster children, pre-trial detainees, and those under “other similar restraint of personal liberty.” • moving an unconscious patient into an ambulance does not create “custody”

  46. Workplace Cases • Collins v. City of Harker Hts (1992) • Due Process Clause does not impose an independent federal obligation upon municipalities to provide certain minimal levels of safety and security in the workplace • Waybright v. Frederick County (4th Cir. 2008) • Lombardi v. Whitman (2d Cir. 2007) • Witkowski v. Milwaukee County (7th Cir. 2007) • But see Hawkins v. Holloway (8th Cir. 2003)

  47. Workplace Cases : Prison Employees • Prison employees are not like prisoners • Sperle v. Michigan DOC (6th Cir. 2002) • Wallace v. Adkins (7th Cir. 1997) • Liebson v. New Mexico Corrections Dept. (10th Cir. 1996) • Martinez v. Uphoff (10th Cir. 2001) • White v. Lemacks (11th Cir. 1999)

  48. State-Created-Danger Cases • Common Themes • action v. inaction: look for affirmative act by state actor creating or increasing risk as to • known or identifiable victim or class (not public at large) • conduct must “shock the conscience”

  49. State-Created Danger Cases • Kennedy v. City of Ridgefield (9th Cir. 2006) • Pena v. DePrisco (2d Cir. 2005) • Kneipp v. Tedder (3d Cir. 1996) • Draw v. City of Lincoln Park (6th Cir. 2007) • Jones v. Reynolds (6th Cir. 2006)

  50. Confidential Informant Cases • Matican v. City of New York (2d Cir. 2008) • noncustodial relationship between a confidential informant and police, absent more, is not a special relationship • planning a sting is affirmative conduct that could give rise to state-created danger • but conduct here did not “shock the conscience” • Majority of circuits find no affirmative duty owed to “voluntary” CIs

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