Transcript Section 1983: Constitutional Tort

42 U.S.C. § 1983
 Every Person who
 Under Color of State Law
 Subjects or Causes to be Subjected
 Any Citizen or Other Person to the
 Deprivation of Any Rights, Privileges, or
Immunities Secured by the
 Constitution and laws [of the United States]
 Shall be liable to the Party Injured in
 Action at Law, Suit in Equity, etc….
Some Basic Principles
 Statute creates no substantive
rights
 merely creates remedy
 no respondeat superior
 concurrent jurisdiction in state &
federal courts
TWO KEY ELEMENTS OF 1983 CLAIM
1.
2.
Conduct Must Effect Deprivation of Right
Secured by Federal Constitution or Laws

Virginia v. Moore (U.S. 2008)

Wilder v. Turner (10th Cir. 2007)
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United States v. Laville (3d Cir. 2007)

Steen v. Myers (7th Cir. 2007)
Conduct Committed Under Color of State
Law
Under Color of State Law
 Lugar v. Edmondson Oil Co (1982)
(state action within meaning of 14th
amdt. = “under color of law” for § 1983
purposes)
 Brentwood Academy v. Tennessee
Secondary School Athletic Ass’n (2001)
(discussing different tests; finding state
action on basis of “pervasive
entwinement”)
Under Color of State Law
 Rosborough v. Management &
Training Corporation (5th Cir. 2003)
 Ibrahim v. Department of Homeland
Sec. (9th Cir. 2008)
 Arias v. U.S. Immigration and
Customs Enforcement Div. of Dept.
of Homeland Sec. (D. Minn. 2008)
Monroe v. Pape (U.S. 1961)
 “under color of law” includes
“misuse of power, possessed by
virtue of state law and made
possible only because the
wrongdoer is clothed with the
authority of state law.”
Individual vs. Official Capacity
 individual capacity
 $$ out of
official’s pocket
 qualified
immunity
 punitive damages
available
 official capacity
 suit against
entity
 no qualified
immunity
 no punitive
damages
Individual vs. Official Capacity
 Murphy v. Arkansas (8th Cir.)
 Young Apartments v. Town of
Jupiter (11th Cir. 2008)
 Powell v. Alexander (1st Cir.)
 Moore v. City of Harriman (6th Cir.)
 Biggs v. Meadows (4th Cir.)
Individual vs. Official Capacity
 Petty v. County of Franklin, Ohio (6th Cir.
2007)
 no personal capacity suit where no
allegations of Sheriff’s direct involvement
in beating or denial of medical care
 no official capacity suit (suit v. County)
where no evidence of official policy or
custom
Supervisory Liability
 individual liability; no respondeat superior
 where liability based on inaction, is constructive knowledge
(should have known) enough?
 Tardiff v. Knox County (D. Me. 2005)
 Sheriff Davey disputes that he had actual knowledge of the
unlawful custom and practice of strip searching detainees
charged with misdemeanors without reasonable suspicion of
concealing contraband or weapons. . . Regardless of his actual
knowledge, the Court concludes that based on the undisputed
evidence in the record he should have known that the practice
was ongoing, and that, despite the change to the written policy
in 1994 and the institution of new procedures in 2001, the
practice had not been eliminated.
Supervisory Liability
 See Iqbal v. Hasty (2d Cir. 2007), cert.
granted sub nom Ashcroft v. Iqbal
 Whether a cabinet-level officer or other
high-ranking official may be held
personally liable for the allegedly
unconstitutional acts of subordinate
officials on the ground that, as high-level
supervisors, they had constructive notice
of the discrimination allegedly carried out
by such subordinate officials
11th Amendment
 local entities have no 11th Amdt. immunity
 States/ state agencies/ state officials in official
capacity will have 11th Amdt. immunity absent
consent, waiver or valid abrogation
 Congress did not abrogate states’ 11th Amdt.
immunity through §1983 (Quern v. Jordan)
 states/ state agencies/ state officials in official
capacity are not “persons” under § 1983 (Will )
 no consent or waiver as to § 1983
11th Amendment
 state official may be sued in
individual capacity for damages
(Hafer v. Melo )
 state official may be sued in official
capacity to enjoin ongoing violation
of federal right (Ex Parte Young )
McMillian v. Monroe County (1997)

Sheriff in Alabama is state official
when performing law enforcement
function
 Depending on state and function:
1. Sheriff may be state official
2. Sheriff may be county official
3. Sheriff may be independent (suable)
office with County joined as
necessary party (IL)
McMillian v. Monroe County (1997)
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Brewster v. Shasta County (9th Cir.
2001) (sheriff = county official)
Venegas v. County of L.A. (Cal. 2004)
(sheriff = state official)
Most federal district courts in CA follow
Brewster (See recent cases in outline)
But see Walker v. County of Santa
Clara (N.D. Cal. 2005) (following
Venegas)
Recent Cases
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Poleo-Keefe v. Bergeron (D. Vt. Aug. 28, 2008)
While Vermont sheriffs have been held to be state
actors in other cases, their roles as state actors
have been limited to law enforcement and security
duties. . . Sheriff Bergeron's supervisory duties
here were different in nature from his law
enforcement duties. He was not performing the
traditional state role of keeping the peace; rather,
he was acting as a employee supervisor. . .
.Therefore, Sheriff Bergeron acted as a County
official and sovereign immunity does not apply.
Recent Cases
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Parker v. Bladen County (E.D.N.C. June 27,
2008)
Sheriff Bunn was proper defendant, not
Bladen County, not Sheriff’s Dept., in suit
alleging failure to train and supervise officers
who used tasers on plaintiff
allegations are employment- and training
related, and constitute personnel decisions
or other law enforcement polices over which
the Bladen County Sheriff (not Bladen
County) maintains exclusive authority
Recent Cases
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Argandona v. Lake County Sheriff’s
Department (N.D. Ind. Feb. 13, 2007)
The court concludes that the Lake
County Sheriff's Department, when
acting in its law enforcement capacity,
is neither an arm of the State nor a
mere extension of Lake County. Rather,
the Department is a separate municipal
entity and subject to suit under §1983
Recent Cases
Gray v. Kohl (S.D. Fla. 2008)

The holding in Abusaid that a County Sheriff enforcing a
county statute is not entitled to Eleventh Amendment
immunity applies with equal force to a County Sheriff
enforcing a state statute.

Here, there is no evidence that Sheriff Roth, the final
policymaking authority in matters of law enforcement for
Monroe County , ratified Officer Perez's arrests of the
Gideons based on the fact that they were distributing
Bibles within the school safety zone

Jones ex rel. Albert v. Lamberti (S.D. Fla. 2008)
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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.
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Recent Cases
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Youngs v. Johnson (M.D. Ga. 2008)
Sheriff has not, through Agreement with DOJ, sufficiently
relinquished to Muscogee County his state-derived authority for the
operation of the jail to the extent that he loses his Eleventh
Amendment immunity
Because the Court finds that the sheriff is an arm of the county in
providing medical care in a county jail, Sheriff Johnson is not entitled
to Eleventh Amendment immunity
Under Georgia law, the provision of medical care to county inmates is
a county function. The County can certainly delegate that function to
the Sheriff, which the record establishes was done here, but when it
does so, it does not relinquish its ultimate responsibility for that
function. The Sheriff simply becomes the final policymaker for the
County regarding the promulgation of appropriate policies and
procedures for providing adequate medical care to inmates at the
county jail
Methods of Establishing Local
Government Liability
1. Officially adopted policy
2. custom or practice
3. failure to train, supervise,
discipline, adequately screen
4. attribution of decision or act of
final policymaker to entity
Formally Adopted Policy
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Maddux v. Officer One (5th Cir. 2004)
Richards v. Janis (E.D. Wash. 2007)
Meir v. McCormick (D. Minn. 2007)
Rauen v. City of Miami (S.D. Fla. 2007)
Tardiff v. Knox County (D.Me. 2005)
Whose policy is it?
local government enforcing state law
 Cooper v. Dillon (11th Cir. 2005)
 Richman v. Sheahan (7th Cir. 2001)
 Garner v. Memphis Police Dept. (6th
Cir. 1993)
 Vives v. City of New York (2d Cir.
2008)
Whose policy is it?
Inter-agency agreements
private prison/healthcare corps
 Young v. City of Little Rock (8th Cir. 2001)
 Ford v. City of Boston (D. Mass. 2001)
 Deaton v. Montgomery County (6th Cir. 1993)
 Sumlin v. Gibson (N.D. Ga. 2008)
 Daniels v. Prison Health Serv. (M.D. Fla. 2006)
 Martin v. CCA (W.D. Tenn. 2006)
 Herrera v. County of Santa Fe (D.N.M. 2002)
Custom or Usage
 Lopez v. City of Houston (S.D. Tex.
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2008)
Thomas v. Baca (C.D. Cal. 2007)
Jackson v. Marion County Sheriff’s
Dep’t. (S.D. Ind. 2005)
Tardiff v. Knox County (D. Me.
2005)
Custom or Usage
 Code of Silence 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)
Custom or Usage
 But see Garcetti v. Ceballos, 126
S.Ct. 1951 (2006)
 When public employees make
statements pursuant to their official
duties, they are not speaking as
citizens for 1st Amdt. purposes, and
such speech may be sanctioned by
employer [See Garcetti handout]
Custom or Usage: Policymaker
Must Have Notice
 Constructive knowledge 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)
Failure to have a written policy
 Brumfield v. Hollins (5th Cir. 2008)
 Brumfield places great weight on the fact that Sheriff
Stringer had no written policies and procedures at the Old
Jail similar to the ones at a nearby facility known as the ‘New
Jail.’
 From this, she concludes that Sheriff Stringer implemented
no policies at all.
 validity of prison policies is not dependent on whether they
are written or verbal. A policy is a policy.
 verbal policies existed concerning inmate supervision and
medical care, and Sheriff Stringer, Bryant, Louge, Hollins,
and Thornhill all testified to that effect.
Failure to Train, Discipline, etc.
City of Canton
 deliberate indifference
1. Obvious need to train
2. constructive notice of need to
train
 See, e.g., Sornberger v. City of
Knoxville (7th Cir. 2006)

Failure to Train, Discipline, etc.
 can’t be too obvious
 Walker v. City of New York (2d Cir.
1992)
 Atkins v. County of Riverside (9th Cir.
2005)
 Carr v. Castle (10th Cir. 2003)
 Hernandez v. Borough of Palisades Park
Police Dep’t (3d Cir. 2003)
 Barney v. Pulsipher (10th Cir. 1998)
Obviousness Cases
 Thompson v. Connick (5th Cir. Dec.
19, 2008)
 Gregory v. City of Louisville (6th Cir.
2006)
 Young v. Providence (1st Cir. 2005)
 Brown v. Gray (10th Cir. 2000)
 Allen v. Muskogee (10th Cir. 1997)
Not so obvious
 St. John v. Hickey (6th Cir. 2005)
 Ross v. Town of Austin (7th Cir. 2003)
 Febus-Rodriguez (1st Cir. 1994)
 Gold v. City of Miami (11th Cir. 1998)
 Lewis v. City of West Palm Beach (S.D.
Fla. 2008)
Constructive Notice Cases
 Young v. Providence (1st Cir. 2005)
 Olsen v. Layton Hills(10th Cir. 2002)
 Beck v. Pittsburgh (3d Cir. 1996 )
 Vann v. New York (2d Cir. 1995)
Jail suicide cases
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Whitt v. Stephens County (5th Cir. 2008)
Short v. Smoot (4th Cir. 2006)
Gray v. City of Detroit (6th Cir. 2005)
Crocker v. County of Macomb (6th Cir. 2005)
Payne v. Churchich (7th Cir. 1998)
Cook v. Sheriff of Monroe County (11th Cir. 2005)
Tittle v. Jefferson County (11th Cir. 1994)
 But see Wever v. Lincoln County (8th Cir. 2004)
 Woodward v. CMS (7th Cir. 2004)
“Bad Hiring/Screening” Cases
 Bryan County (U.S. 1997)
 single decision by final policymaker
(Sheriff)
 particular constitutional violation
must be “plainly obvious
consequence” of inadequate
screening or hiring decision
Post-Brown Cases
 Hardeman v. Kerr County, Tex (5th Cir.
2007)
 Whitewater v. Goss (10th Cir. 2006)
 Doe v. Magoffin County Fiscal Court (6th
Cir. 2006)
 Crete v. Ciavola (1st Cir. 2005)
 Estate of Davis v. City of North Richland
Hills (5th Cir. 2005)
Derivative Nature of Liability
 City of Los Angeles v. Heller (1986)
 Willis v. Neal (6th Cir. 2007)
 Best v. Cobb County, Ga. (11th Cir. 2007)
 Hicks v. Moore (11th Cir. 2005)
 Young v. City of Providence (1st Cir. 2005)
 Crocker v. County of Macomb (6th Cir. 2005)
 Trigalet v. City of Tulsa (10th Cir. 2001)
Liability Based on Conduct of Final
Policymakers
 Pembaur/Praprotnik/Jett
 Who is Final Policymaker =
Question of State Law
 Generally, one whose decisions are
not reviewable by another
Liability Based on Conduct of Final
Policymakers
 Hampton Co. Nat. Sur., LLC v.
Tunica County, Miss. (5th Cir. 2008)
 Bruce v. Beary (11th Cir. 2007)
 Ford v. County of Grand Traverse
(6th Cir. 2008)
 Harper v. City of Los Angeles (9th
Cir. 2008)
Liability Based on Conduct of
Final Policymakers
 Roe v. City of Waterbury (2d Cir. 2008)
 Bolton v. City of Dallas (5th Cir. 2008)
 Auriemma v. Rice (7th Cir. 1992)
 Thomas v. Roberts (11th Cir. 2001)
 Meyers v. Delaware County, Ohio (S.D.
Ohio 2008)
Liability Based on Conduct of
Final Policymakers
 But see Simmons v. Uintah Health Care
Special District (10th Cir. 2007)
 Actions taken by a municipality's final
policymakers, even in contravention of
their own written policies, are fairly
attributable to the municipality and can
give rise to liability.
DeShaney : S/D/P & Affirmative
Duty to Protect
 DeShaney (1989) : no general
affirmative duty to protect citizens
from acts of private violence
Exceptions
1. special relationship/custody cases
2. state-created danger cases
 While State was aware of dangers
Joshua faced, it played no part in
creation of those dangers nor did
State make him more vulnerable to
those dangers
Custody Cases

Jackson v. Schultz (6th Cir. 2005)
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The “custody exception” triggers a constitutional
duty to provide adequate medical care to
incarcerated prisoners, those involuntarily
committed to mental institutions, foster children,
pre-trial detainees, and those under “other
similar restraint of personal liberty.”
moving an unconscious patient into an
ambulance does not create “custody”
Workplace Cases
 Collins v. City of Harker Hts (1992)
 Due Process Clause does not impose an
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independent federal obligation upon
municipalities to provide certain minimal
levels of safety and security in the workplace
Waybright v. Frederick County (4th Cir. 2008)
Lombardi v. Whitman (2d Cir. 2007)
Witkowski v. Milwaukee County (7th Cir. 2007)
But see Hawkins v. Holloway (8th Cir. 2003)
Workplace Cases : Prison Employees
 Prison employees are not like prisoners
 Sperle v. Michigan DOC (6th Cir. 2002)
 Wallace v. Adkins (7th Cir. 1997)
 Liebson v. New Mexico Corrections Dept.
(10th Cir. 1996)
 Martinez v. Uphoff (10th Cir. 2001)
 White v. Lemacks (11th Cir. 1999)
State-Created-Danger Cases
 Common Themes
1. action v. inaction: look for affirmative
2.
3.
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”
State-Created Danger Cases
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Kennedy v. City of Ridgefield (9th
Cir. 2006)
Pena v. DePrisco (2d Cir. 2005)
Kneipp v. Tedder (3d Cir. 1996)
Draw v. City of Lincoln Park (6th
Cir. 2007)
Jones v. Reynolds (6th Cir. 2006)
Confidential Informant Cases
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Matican v. City of New York (2d Cir. 2008)
noncustodial relationship between a
confidential informant and police, absent
more, is not a special relationship
planning a sting is affirmative conduct that
could give rise to state-created danger
but conduct here did not “shock the
conscience”
Majority of circuits find no affirmative duty
owed to “voluntary” CIs
Domestic Violence Cases
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Town of Castle Rock v. Gonzales (U.S.
2005)
respondent did not, for purposes of the Due
Process Clause, have a property interest in police
enforcement of the restraining order against her
husband
In light of today's decision and that in DeShaney,
the benefit that a third party may receive from
having someone else arrested for a crime
generally does not trigger protections under the
Due Process Clause, neither in its procedural nor
in its ‘substantive’ manifestations.