ASPEN

PU 1 LI SHE R S

2004Handbookof Section1983
Litigation
bv David W. Lee

Title 42 U.S.C. $ 1983 was designedto provide redressfor violationsof federally

protected rights committed by persons acting under color of law. In the last few
decadesthere has been unprecentedgrowth in the volume and type of casesfiled
under Section1983,which has generateda comprehensive, intricate,and complex
body of law. Handbook of Section 1983 Litigation provides quick and concise
answersto issuesthat frequentlyarisein Section 1983cases,from police miscon-
duct to affirmative action to sender and race discrimination.

Highlights of the 2004Edition

The 2004 Handbook includes many recent developmentsin the area of Section
1983 and addssignificantnew and revisedmaterial,including:
. Discussion of Chavez v. Martinez, where the Supreme Court held that a
police sergeant'sallegedcoercivequestioningof a suspectdid not violate
the Fifth Amendment's self-incrimination clausewhen the statedid not use
the suspect'scompelledstatementsin a criminal caseagainsthim;
. Discussion of Overton v. Bazzatta, where the SupremeCourt reversedthe
Ninth Circuit Court of Appealsand upheld prison regulationsthat outlined
thosefamily memberswith whom inmateswere entitledto non-contactvis-
its, and which subjectedinmateswith two substanceabuseviolations to a
ban of at least two years on future visitation;
. Discussion of Connecticut Department of Public Safety v. Doe, where the
SupremeCourt held that Connecticut'sMegan'sLaw was constitutionaland
did not violate the liberty interests of convicted sex offenders when the
statuterequired the Department of Public Safety to post a registry that con-
tained the namesof those offenders;
. Discussionof Grutter v. Bollinge4 where the SupremeCourt held that a law
schoolhad a compellinginterestin attaininga diversestudentbody,and the
law schooladmissionsprogramwas constitutionalbecauseit was narrowll'
tailoredto serveits compellinginterestin obtainingthe educationalbenefits
 of a diverse studentbody; and Gratz v. Bollinge4 where the Court held that
an undergraduateadmissionspolicy of automatically distributing 20 points
to every "underrepresented"minority applicant solely becauseof race vio-
lated the Equal Protection Clause;
Disscussionof Lawrencev. kias, where the SupremeCourt held that aTexas
statutethat made it a crime for two personsof the samesex to engagein cer-
tain intimate sexual behavior was unconstitutional becausehomosexuals'
right to liberty under the due processclause gives them the right to engage
in consensualsexual activitv in the home without the intervention of the
government;
New discussions of subjects such as $ 1983 and the Americans with
Disabilities Act, arrestsbasedon allegedracial motivation, and studentsand
the First Amendment.

4t04

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2004
HANDBOOKOF
SECTION1983
LITIGATION
David W. Lee
2004
HANDBOOKOF
SECTION1983
LITIGATION
David W. Lee

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720l McKinney Circle
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 ABOUTTHEAUTHOR
David W. Lee is an attorney and shareholderwith the law firm of Lee &
Gooch, P.C., in Oklahoma City, Oklahoma. He is a litigator in the fields of civil
rights and employment law, representing municipal and county officers and
employees,state agencies,colleges and universities, and private employers. Prior
to entering private practice, Mr. Lee servedas Chief of the Criminal and Federal
Divisions of the OklahomaAttorney General'sOffice for threeAttorneys General,
Jan Eric Cartwright, Michael C. Turpen, and Robert H. Henry. He also servedas
an Assistant United States Attorney for the Western District of Oklahoma; an
Assistant District Attorney and Assistant Public Defender in Oklahoma County,
Oklahoma; and an Assistant District Attorney in WashingtonCounty, Oklahoma.
Mr. Lee is an adjunct professor at the University of Oklahoma College of
Law and the Oklahoma City University School of Law, having taught coursesin
trial practice, employment law, disability law, and appellateadvocacy.Mr. Lee is
a regular lecturer on civil rights subjects for the National College of District
Attorneys and received that organization's Lecturer of Merit Award in 1992.In
4pri1,2002, Mr. Lee spokeon 42 U.S.C. $ 1983 to the 20th Annual Georgetown
University Law Center'sseminar,Section 1983:Civil RightsLitigation.
Mr. Lee has argued four cases before the United States Supreme Court:
Thompsonv. Oklahoma.487 U.S. 815 (1988); Burlington Northern v. Oklahoma
Tax Commission,4SIU.S. 454 (1987);Oklahomav. Castleberry,471U.S. 146
(1985); and Oklahomav. Eddings,455 U.S. 104 (1982). He has also arguedand
written briefs regardingnumerouscasesbefore the United StatesCourt of Appeals
for the Tenth Circuit. Some of the civil rights and employment caseshe has argued
in the Tenth Circuit are: Gossettv. Stateex rel. Board of Regents,245F3d II72
(10th Cir. 2001); Worrell v. Turner,2l9 F.3d 1197 (1OthCir. 2000);Martin v. City
of Del city,179 F.3d 882 (10rh Cir. 1999);Smith v. City of Enid, 149 F.3d 1151
(10th Cir. 1998);Pietrowskiv. Tbwnof Dibble,134 F.3d 1006 (10th Cir. 1998);
King v. Union Oil Company, 117 F.3d 443 (IDthCir. 1997); King v. Union Oil
Company, 58 F.3d 586 (lOth Cir. 1995); Winters v. Board of County
Commissioners,4F.3d848 (10th Cir. 1993);Garrett v. Rader,831 F.2d 202 (l0th
Cir. 1987); Colemanv. Turpen,826F.zd 667 (10th Cir. 1987);andWolftnbarger
v. Williams,826F.2d930 (10rhCir. 1987).
Mr. Lee's other legal publications and articles include: Personal Liability
Against Correctionat Officiats and Employeesfor Failure to Protect the Suicidal
Inmate Under 42 U.S.C.S 1983,Jail Suicide/lMentalHealth Update (Spring 2002);
QualifiedImmunityfor Public Officials Under 42 U.S.C.S 1983,25 Urb. Law.97

vil
 2OO4HANDBOOK OF SECTION1983 TITIGATION

(Winter 1993);Defending42 U.S.C.Secrton1983Actions(6th ed. 1999';;Grand

Juriesin OHahanu:WhereAre WeNow?,68 Okla. B.J.26M (L997);Burden
Shifiingand.SummaryJudgrnentin FederalEmploymentDiscriminationCases,6'l
Okla.B.J. 2861(1996);TheNeedforNewCriminalDiscoveryCodein Oklnhoma
StateCourts,60Okl4.8.J.2259 (1989);andGrandJury Procedurein Oklahoma
StateCourts,59Ok6. 8.1.2087(1988).

vllt
This book is dedicatedto my wife, Lynn Leigh Lee.
 'lll

SUMMARYOF CONTENTS
Contents
Preface
ChapterI Liability Under 42 U.S.C.S 1983
Chapter 2 SpecificViolationsof FederallyProtectedRights
Chapter3 Supervisory,Municipal, County,and School
District Liability
Chapter 4 Incarceratedand ConfinedPersons
Chapter5 Due Process
Chapter6 The First Amendmentand $ 1983
Chapter 7 Immunity
Chapter8 Pleadings,Motions, and Affirmative Defenses
Chapter 9 Injunctions and Declaratory Relief
Chapter 10 Damagesand Interest
Chapter11 Discoveryand Subpoenas
in FederalCivil Cases
Chapter 12 Thial Issuesin a $ 1983Case
Chapter13 Attorneys'Feesand Costsin $ 1983Actions
Tableof Cases
Index

xl
 CONTENTS
.1 completetable of contentsfor each chapter is included at the beginning of the
:1apter.

Preface

Chapter I
LL{BILITY UNDER 42 U.S.C. $ 1983
i 1.01 Nature of the Remedy
i r.02 Entities or PersonsWho May Bring Actions or Be Sued
Under42 U.S.C.$ 1983
il03 Section 1983Actions Against Entities or Personsin Their
Official Capacities
+ 1.0-l Color of Law or StateAction

Chapter2
SPECIFICVIOLATIONS OF FEDERALLY PROTECTED RIGHTS
i 1.01 Violations of State Law
: t.02 The Question of Whether a Tort Is a Constitutional Violation
i 103 Dismissalof PendentStateClaims
: :.0-+ Unreasonableor ExcessiveForce
: :.0 5 Unlawful Arrest or Seizure of Persons
i :0 6 Illegal Searchesand SeizuresofProperty
:1 07 Liability for Failure to Releasean Arrestee or Prisoner from
Custody and for Failure to Provide a Timely Probable
CauseHearing
i :.0 8 Police Interrogation, Threats, and Lineups
: :.0 9 Drug and Alcohol Testing and42 U.S.C. $ 1983
: Ll0 Causation
:: l 1 Interference with the Right to a Fair Trial, Spoliation of
Evidence, Denial of Access to Courts, Cover-Ups, and the
Fabrication of Evidence
: l .l 2 Conspiracy
:t1 3 Equal Protectionand 42 U.S.C. $ 1983
::l+ Affirmative Action in Education and in Law School
:115 Employment Discrimination and Affirmative Action in
EmploymentUnder 42 U.S.C. S 1983

x| ll
 2OO4HANDBOOKOF SECTION1983 TITIGATION

Chapter 3
SUPERVISORY,MUNICIPAL, COUNTY,AND
SCHOOL DISTRICT LIABILITY
$ 3.01 Causesof SupervisoryLiability and of Liability of Municipalities,
Counties, and School Districts
$ 3.02 Custom or Policy
$ 3.03 Failure to Train
$ 3.04 The Finaf or Authorized Decisionmaker
$ 3.05 Liability of Counties

Chapter 4
INCARCERATED AND CONFINED PERSONS
$ 4.01 Jails and Prisons
$ 4.02 Rights of Other Confined Persons

Chapter 5
DUE PROCESS
$ 5.01 Procedural and SubstantiveDue Processin General
$ 5.02 Property Interestsand ProceduralDue Process
$ 5.03 SubstantiveDue Process
$ 5.04 Liberty Interestsand42 U.S.C. $ 1983

Chapter 6
THE FIRST AMENDMENT AND $ 1983
$ 6.01 The First Amendment and Public Employment
$ 6.02 The First Amendment Exercise as the "Substantial" or
"Motivating" Factor in the Government's Decision
$ 6.03 The RequirementThat the SpeechInvolve a Matter of Public
Concern as Opposedto a Matter of Private Concern
$ 6.04 The Pickering Balancing Test and the First Amendment
$ 6.05 The Disruption Defense and the Exercise of First
Amendment Rights
$ 6.06 Use of Public Property to Express Opinions; Freedom of
Expression in the Classroom
$ 6.07 The First Amendment and the Mt. Healthy Defense
S 6,08 The First Amendment and Political Activity
$ 6.09 The First Amendment and42 U.S.C. $ 1983 in
Nonemployment Situations

xtv
CONTENTS

Chapter 7
IMMUNITY
$ 7.01 Immunity
Under42U.S.C.$ 1983Generally
$ 7.02 Absolute and Eleventh Amendment Immunity
$ 7.03 Qualified Immunity

Chapter8
PLEADINGS, MOTIONS, AND AFFIRMATIVE DEFENSES
$ 8.01 Complaints,
Motionsto Dismiss,
Motionsfor Summary
Judgment,
and Affirmative Defenses
S 8.02 The Heckv. HumphreyDefense
$ 8.03 Abstention and Nonretroactivity

Chapter 9
INJUNCTIONS AND DECLARATORY RELIEF
$ 9.01 Injunctions and Declaratory JudgmentsGenerally
$ 9.02 Injunctive Relief and Eleventh Amendment Immunity
$ 9.03 Injunctive Relief and Qualified Immunity
$ 9.04 Injunctions and State Tax Collection

Chapter10
DAMAGES AND INTEREST
$ 10.01 Compensatory in g 1983Cases
Damages
$ 10.02 PunitiveDamages

Chapter1L
DISCOVERY AND SUBPOENASIN FEDERAL CTVIL CASES
$ 11.01 Discovery
Generally
in Federal
CivilCases
$ 11.02 Attorney-ClientPrivilegeandAttorneyWork Product
$ 11.03 AgencyDeliberativeProcessPrivilegeandImmunity
$ 11.04 Protective
Orders
$ 11.05 RequiredDisclosure Withouta DiscoveryRequest
$ I1.06 Supplementation of DiscoveryResponses
S 11.07 ContactingtheOpposingParty'sEmployees
$ 11.08 Depositions
$ 11.09 Interrogatories
andResponses
 2OO4HANDBOOKOF SECTION1983 TITIGATION

$ 11.10 Requests of Documents

for Production
$ 11.11 Requests
for Admission
$ 11.12 Subpoenas
$ 11.13 DiscoverySanctions

r
Chapter 12
TRIAL ISSI]ES IN A $ 1983 CASE
$ 12.01 Evidenceof the Plaintiff'sPrior BadActs andPleasof
Nolo Contendere
$ 12.02 Impeachinga Civil RightsPlaintiff or Witnesswith
Prior BadActs
$ 12.03 Evidenceof a GovernmentEmployee'sGood
Characteror Record
S 12.04 Evidenceof Government Employee'sPrior BadActs and
Admissibilityof OtherActs of Discrimination
$ 12.05 ExpertTestimony and Expert Reports
$ 12.06 OtherTrial andProcedural Issues in a $ 1983Case

Chapter 13
ATTORNEYS'FEES AND COSTS IN $ 1983ACTIONS
$ 13.01 Attorneys' FeesAwarded to Plaintiff
$ 13.OZ Attorneys' FeesAwards to Defendants
$ 13.03 Awards of Costs to Prevailing Parties

Tableof Cases
Index

xvt
 PREFACE
This book is meant to be a comprehensive,yet basic study of that dynamic
federalstatute,42 U.S.C. $ 1983.It is intendedto assistlitigators and legal advi-
son alike.
This edition has been updated to include all recent relevant United States
SupremeCourt casesthat involve 42 U.S.C. $ 1983 and recent $ 1983 cases
&cided in federal courts of appeal. It is hoped that this edition will keep the
! 1983practitioners acrossthe country current on all aspectsof 42 U.S.C. $ 1983
litigation.
With regard to the publication of this book, I am greatly appreciativeof all
the personsat Aspen Publisherswho have worked so diligently on the manuscripts
and promotion of the previous and present editions of this book: Susan Chazin,
-{ssociate Publisher; Carol Benedicto, Developmental Editor; James Orefice,
Senior Manuscript Editor; Elina Carmona, Manuscript Editor; and Mark Fellin
and Maryann Gross, Promotion Managers.
I also wish to make special mention of and give thanks to my law partner,
.{mbre C. Gooch, for the invaluable counsel she provides me with regard to civil
rights litigation, and to Cyndi Hoskins, Office Administrator atLee & Gooch, P.C.,
who typed and proofread the draft prior to its submissionto Aspen.
I want to thank JohnA. Makholm and Peter M. Walsh of Walsh & Makholm
law Group, St. Petersburg,Florida, for their support and advice concerning the
20Ol edition of this book, and for their insight with regard to Section 1983 litiga-
tion. I also want to convey my appreciationto Katrina M. Zabinski for everything
$e did in helping me get the book published.
I wish to expressmy gatitude to the legal counsel that I have worked with
since I have been in private practice, especially StephenReel, General Counsel,
and JonathanD. Woods, Associate General Counsel, of the Oklahoma Municipal
Assurance Group; Charles Drake, General Counsel, and Michael Scott Fern,
Victor N. Bird, Paula Johnson,and Doug Price, Assistant General Counsel, of the
Board of Regents of Oklahoma State University; Tim Kuykendall, Disffict
Attorney, and Mike McDanel and John Hancock, Assistant District Attorneys, of
the Cleveland County, Oklahoma, District Attorneys' Office; and Norman Hill,
GeneralCounsel of the Oklahoma Departmentof Transportation,and Thmar Scott
and Verner Hayhurst, Assistant General Counsel with that department. I also
geatly value the communication on legal issues with Siott Rowland, General
Counsel of the Oklahoma Bureau of Narcotics and DangerousDrugs.
The same sense of appreciation goes to Larry Stuart, District of Osage
County, and John Boggs, First Assistant District Attorney; Max Cook, District

xvtl
 2OO4HANDBOOKOF SECTION1983 LITIGATION

Attorney of Creek County; John Jacobsen,First Assistant Attorney, Oklahoma

County; and Suzanne McClain Atwood, Executive Coordinator, Oklahoma
District Attorneys Council. Also, I have gained from my professional association
with Martha Rupp Carter, City Attorney of Tulsa, Oklahoma, and Larry Simmons
and John Dorman, Assistant City Attorneys of Tulsa; Carol Lahman, City of
Attorney of Enid,'Oklahoma; and Richard Smith, Assistant City Attorney of
Oklahoma City.
I want to thank Dean Robert J. Fertitta, Amie L. Clifford, and their col-
leaguesat the National College of District Attorneys for inviting me to speak at
their seminarsacrossthe country fot numerous years. I also wish to expressmy
gratitude to my colleagueswho I lecture with at the Government Civil Practice
seminarsof the National College of District Attorneys, especially the Honorable
Paul P. Biebel, Jr., of Chicago, Illinois; William A. Harding, Attorney at Law,
Lincoln, Nebraska; and Mark Godwin, Deputy City Attorney, Des Moines, Iowa,
for their wise counsel concerning civil rights issues.
I have also valued the encouragementin the writing of this book from Jerry
E. Stephens, Branch Librarian, U.S. Court of Appeals for the Tenth Circuit;
Professor Judith A. Morgan, Library Science and Director, Oklahoma City
University School of Law; Alfred L. Brophy, Professor of Law, University of
Alabama School of Law; Ron Comingdeer,George S. Corbyn, Jr., David W. Kirk,
Andrew W. Lester, Mark Weimer, and Robert A. Nance, attorneys in Oklahoma
City; and Scott Wood of Tulsa, Oklahoma.
I also want to recognize the Attorney General of Oklahoma, Drew
Edmondson, who is also President of the National Association of Attorneys
General, for his counsel, support, and friendship for many years. Thanks also go
to Tom Gruber, Guy Hurst, Neal Leader, Lisa Davis, Charles Babb, and Jane
Wheeler, Assistant Attorneys General with that office. Likewise, I wish to thank
my previous bossesin the Oklahoma Attorney General's Office, former Attorneys
General Michael C. Turpen, Robert H. Henry, and Susan B. Loving, for their
encouragementand support when I worked for each.I also appreciatethe interest
in the previous books I have written on civil rights displayed by Assistant
Attorneys General acrossthe country, particularly Michael A. Nicefaro, Jr., of the
Washington State Attorney General's Office, and John W. Renneisen of the
Wyoming Attorney General's Office.
I want to thank Harold Pumford, Chief Executive Offrcer of the Association
of GovernmentalRisk Pools, and Denny Butler, Claims and Litigation Manager,
County Claims of Oklahoma,Inc., for their supportwith regardto civil rights cases.
Of course, my greatestthanks go to my wife, Lynn, and our three children,
Taylor, Bryan, and Blake.

David W. Lee
Oklahoma City, Oklahoma
leelawok@swbell.net
March 2004

xvilt
Cnrprrn1
LIABILITY
UNDER42 U.S.C.S 1gB3
I lll \ature of the Remedy
t-{l Origin of the Statute
tB1 Constructionand Reachof 42 U.S.C.$ 1983
tcl Section1983as a Remedyfor Violationsof i
FederalStatutoryLaw I
lDl Whether ExhaustionIs RequiredPrior to
Bringing a $ 1983Lawsuit
tEl Prohibition Against $ 1983Being Usedto Challengethe
I
Fact or Duration of Confinement I
tFl Limitationson S1983Challenges to Extradition
tcl Section1983,Voting,and Elections
tHl The RelationshipBetween$ 1.983and BivensActions
Ul Section1983ActionsAgainst the Military
tJl Age Discriminationand $ 1983
tKl AmericansWith DisabilitiesAct and $ 1983
tl,l Title IX and $ 1983
tMl Section1983and State Courts
tNl Section1983and StateTax Systems
tol The SecondAmendmentand $ 1983
I U): Entities or PersonsWho May Bring Actions or Be Sued
Under 42 U.S.C.$ 1983
tAl Plaintiffs
tBl Standingand Rights Under SurvivorshipLaws
tll Standing
l2l Survivorship Laws
tcl Defendants
I l-03 Section1983ActionsAgainstEntitiesor Personsin
Their Official Capacities
t l-0f Color of Law or StateAction
tAl The RequirementThat the Act Be
UndertakenUnder Color of Law
tBl Private Acts of Public Officials as Opposedto Those
PerformedUnder Color of Law
tcl SexualActs by GovernmentActors
tDl Private Personsor Entities Acting in Concert
with a StateActor
 srolrvetBN qll,taileruoJ uI EqpvslBlrufo lBroped tc1
. ,(eurollyuu fq ua4el suolfcv
puE repro ilnoJ B of luBnsrnd ue{BI suolfJv t.r1
ply lueunuelog Jo ldgeceg.ro uopeln8ag lueurue oC tsl
NOIIV9[|] 186rNotr)ls Jo )ooscNVH r00z
L|AB|UTYUNDER42 U.S.C.S 1983 s 1.01lAl

S1.01 NATURE
OFTHEREMEDY

IAI Originof the Statute

in 1871aspartof whatwasknownasthe
Title42U.S.C.$ 1983wasenacted
Ku Klux Klan Act andwasdesignedto provideredressfor violationsof federally
protectedrights committedby personsactingundercolor of law. fDevelopments
in theLaw: Section1983andFederalism,90 Harv.L. Rev.1133,1141-56(1977);
Adickesv. S. H. Kress& Co., 398 U.S. 144,90 S. Ct. 1598,26L. Ed. 2d 142
(1970); Monroev. Pape,365 U.S.167,81S.Ct.473,5L. Ed.2d492(1961).1The
SupremeCourthasnotedthat $ 1983"createsno substantive rights;it merelypro-
vides remediesfor deprivationsof rights establishedelsewhere."lCity of
Oklahoma City v. Tuttle,471U.S.808,816,105S. Ct.2427,85L. Ed. 2d79I
(1985).Seealso Grahamv.Connor490 U.S. 386,393-94,109S. Ct. 1865,104
L. Ed.2d443(1989);Cityof Hialeahv.Rojas,311F.3d1096,1103n.1(1lth Cir.
2002) (sameholding);Bradleyv. ArkansasDepartmentof Education,301 F.3d
952,957 (9th Cir. 2002)($ 1983merelysecuresthe federallyprotectedrightsthe
plaintiff alreadyholds;it doesnot expandthoserights;$ 1983doesnot providea
right to damageswherenoneexistedbefore);Vnson v. Thomas,288F.3d 1145,
1155(9th Cu.2002)(notingthat $ 1983doesnot conferrights,but insteadallows
individualsto enforcerights containedin the United StatesConstitutionand
definedby federallaw); Ramirezv. Galaza,334 F.3d 850, 854 (gth Cir. 2003)
(notingthatCongress's purposein enacting$ 1983wasto createa novelcivil rem-
edy for violations of establishedconstitutional rights); Davis v. Rennie,
264 F.3d 86, 97 (lst Cir. 2001) (noting that $ 1983 is not itself a sourceof
substantiverights, but merely providesa methodfor vindicatingfederalrights
elsewhereconferred);SamericCorp. v. Ciry of Philadelphia,142 F.3d 582, 590
(3d Cir. 1998)("Section1983is not a sourceof substantive rights,but providesa
remedyagainststateofficialsfor violationsof constitutionalrights.");Gardenhire
v. Schubert,205F.3d303,310 (6th Cir. 2000)("By its terms,$ 1983createsno
substantiverights; it merely provides remedies for deprivation of rights
established elsewhere.");Whiting v. Traylo485 F.3d581, 581 (llth Cir. 1996)
("Section1983is no sourceof substantive federalrights.").]Section1983provides
a causeofaction for violationoffederallyprotectedrightsbut doesnot confersub-
ject matterjurisdiction. lAyala Senanov. LebronGonzales,909 F.2d8, 14 (lst
Cir. 1990).1
The watershed eventfot 42 U.S.C.$ 1983waswhenthe SupremeCourtren-
deredits opinionin Monroev. Pape[365U.S. 167,81S.Ct. 473,5 L. Ed. 2d 492
(1961).1ln Monroe,a casein which policeallegedlybrokeinto an apartmentand
illegally arrestedtheoccupantswithoutan arrestor searchWarrant,theCourtheld
that this was an actionundertakenunder"color of law" and the police could be
suedunder$ 1983.The Courtrejectedthe claim that becausethe officers'actions
violatedIllinois statelaw, theycouldnot be actingunder"color of law," which is
a requirementfor a $ 1983action.The Court held that public officials' actions
s 1 .0 1 t81 2OO4HANDBOOKOF SECTION1983 LITICATION

meet the "color of law" requirementwhen they act under the authority of statelau.
regardlessof whether their act is illegal under statelaw.
In 1978,the Court went a stepfurther and ruled that a municipality could be
held liable under $ 1983,ovemrling the part of Monroe that held a municipal cor-
poration could not be sued under $ 1983. [Monell v. New York City Department of
SocialServices,436 U.S.658,98 S. Ct. 2018,56 L. Ed. 2d6Il (1978).1

tBI Construction and Reachof 42 U.S.C. S 1983

To succeedon a $ 1983 claim, the plaintiff must establishthat (1) the con-
duct complainedof was committed by a personacting under color of statelaw, and
(2) the conduct deprived the plaintiff of a constitutional right. ll,ockridge v. Board
of Trustees, 294 F.3d 10 10, I 0 I 7- 18 (8th Cir. 2002); Gerber v. Hickman, 264 F.3d
882, 886 (9th Cir. 2001).1The $ 1983plaintiff has to show that she was deprived
of a federal right by a personacting under color of stateor territorial law. lJones v.
Union County,296F.3d 417,423 (6th Cir. 2002).1Section1983doesnot createa
remedy for every wrong committed under the color of statelaw, but only for those
that deprivea plaintiffof a federalight.lKnight v. Jacobson,300F.3d1272,1276
(1lth Cir. 2002).1
Significantly,Title42 U.S.C. $ 1983is to be broadly and liberally construed.
lDennisv. Higgins,498U.S. 439, 443, I I I S. Ct. 865, Il2 L. Ed. 2d 969 (1991).
Seealso Southern Califurnia Gas Co. v. City of SantaAna, 336 F.3d 885, 887 (9th
Cir. 2003) (stating that "the rights guaranteedby $ 1983 are liberally and benefi-
cently construed").] The Reconstruction civil rights acts are to be accorded a
sweepas broad as their language.fChavis v. Clayton CountySchoolDistrict,300
F.3d 1288, 1292 (Ilth Cir. 2002).1Thus,numerousconstitutionalprovisionshave
been found to be proper basesof liability under $ 1983. fDennis v. Higgins, 498
U.S. 439, 111 S. Ct. 865, lI2 L. Ed. 2d 969 (1991) (suits for CommerceClause
violationscan be broughtunder$ 1983);Monroev. Pape,365U.S. 167,8l S. Ct.
473, 5 L. Ed. 2d 492 (1961) (unlawful warrantlessarrestand searchis actionable
under $ 1983);AssociatedGeneralContractorsv. Smith,74F.3d926,93l (9th Cir.
1996) (in ERISA action under $ 1983,therewas no right to attorneys'fees under
42 U.S.C. $ 1988becausepreemptionof statelaw under the SupremacyClauseis
groundednot on individual rights but on considerationsof power); Segundov. City
of Rancho Mirage,8l3 F.2d 1387, 1394 (9th Cir. 1987) (preemption is not
grounded on individual rights but instead on considerationsof power and will not
support an action under $ 1983 or a claim for attorneys' fees under $ 1988); White
Mountain Apache Tribe v. Williams, 8 10 F.2d 8M, 852 (9th Cir. 1987) (samehold-
ing). Cf. Chapman v. Houston Welfure Rights Organization, 441 U.S. 600, 99 S.
Ct. 1905,60 L. Ed. 2d 508 (1979) (SupremacyClauseis not an independentbasis
for $ 1983 liability); Strandbergv. Ciry of Helenn, 79I F.zd 7M, 748-49 (9th Ch.
1986) (no $ 1983 claim under Ninth and Tenth Amendments); International
Organizationof Mastersv.An.drews,831F.2d 843,845-46 (9th Cir. 1987)(privileges
and immunities clause protects a nonresident'sright to pursue an occupation);
UABTUTY S1983
UNDER42 U.S.C. s 1.01tBI

ConsolidatedFreightwaysv. Kassel,730 F.zd II39, ll43-47 (8th Cir. 1984)

(Commerce Clause).1
In Alliant EnergyCorp.v.Bie 1336F.3d545 (7thCir. 2003)1,a $ 1983case,
the courtheld that a Wisconsinstatutethatrequiredpublic utility holdingcompa-
nies to be incorporatedin Wisconsinwas invalid becauseit burdenedinterstate
commerce.However,the court held that anotherWisconsinstatutethat required
that public utilities be generated,distributed,andconsumedin Wisconsindid not
violatethe CommerceClause.
CommerceClausecasesinvolving interstateshipmentsof wine are being
broughtpursuantto $ 1983.lDickcrsonv. Bailey,336 F.3d 388 (5th Cir. 2003)
(holding that portions of the Texasalcohol beveragecode that discriminated
againstout-of-statewineriesviolatedtheCommerceClause);Healdv.Englea342
F.3d517 (6th Cir. 2003)(in a $ 1983action,courtholdsthatMichigan'salcohol
regulationsdiscriminatedagainstout-of-statewineriesby preventingthem from
shippingwine directly to Michigan\; Swedenburg v. Kelly, 232 F. Supp.2d 135
(S.D.N.Y.2002)(NewYork ban on direct shipmentof out-of-statewinesto con-
sumersviolatedCommerceClause).1
ln Gonzagav. Doe [536 U.S. 273, I22 S. Ct. 2268, 153 L. Ed. 2d 309
(2002)1,the Court held that allegedviolationsof the Family EducationalRights
and PrivacyAct (FERPA)t20 U.S.C. S I232gl do not providea causeof action
under42 U.S.C.$ 1983.The Court held that wherethe statuteconferredno spe-
cific, individually enforceablerights, and was basedon Congress'sspending
power,therewasno causeof actionto enforceunder$ 1983.The Courtheld that
where the text and structure of a statuteprovide no indication that Congress
intendsto createnewindividualrights,thereis no basisfor a privatesuit,whether
it is broughtunder$ 1983or underan impliedright of action.The Courtalsoheld
that FERPAs non-disclosureprovisionsfailed to confer enforceableacts.The
Coun heldthat if Congresswishedto createnewrightsenforceable under$ 1983,
it must do so in clearand unambiguous terms.It notedthat Title VI of the Civil
RightsAct of 1964andTitle IX of the EducationsAmendments createindividual
rights becausethey are phrased"with an unmistakable focus on the benefited
class."(emphasis in original).lCf. Robinsonv. Kansas,295F.3d 1183,1186-87
(10th Cir. 2002) (statingthat $ 1983can be usedto bring an actionpursuantto
Title VI, 42 U.S.C.$ 2000dfor intentionaldiscrimination).1
ln SouthemCalifurniaGasCo.v. Cityof SantaAna 1336F.3d885,887(9th
Cir. 2003)1,thecourtstatedthat"[t]he right of a partynot to havea State,or polit-
ical subdivisionthereof,impairits obligationsof contractis a right securedby the
First Article of the United StatesConstitution."The courtheld that a deprivation
of the right with regardto contractsmay grve rise to a causeof action under
$ 1983.[Id.]T"hecourtheldthata municipality'strenchcut ordinancewasnot rea-
sonableandnecessary as wasrequiredto survivethe ContractsClauseprotection
guaranteed under$ 1983.U.S.Const.art.I, $ 10,cl. t. (td. at 837-89.1
In Bradley v. ArkansasDepartmentof Educationl30l F.3d 952, 956-57
(9th Cir. 2002)1,thecourtheldthatbecausetheplaintiff parentscouldnot recover
s 1 .0 IBI
1 2OO4HANDBOOKOF SECTION1983 TITIGATION

compensatory damages or punitive damages under the Individuals With

Disabilities Act (IDEA), the public officials they sued were entitled to qualified
immunity as to the IDEA claims and the $ 1983 claims. The court noted that
$ 1983 merely securesthe federally protected rights the plaintiff already holds; it
does not expandthose rights. lld. at 957.1The court noted that $ 1983 does not
provide a right to damageswhere none existed before. [1d.]
The SupremeCourt has held that stateofficials who executeda searchwarrant
on tribal land, with regard to a tribe member suspectedof having violated state law,
cannot be sued in tribal court under $ 1983. V'{evadav. Hicks, 533 U.S. 288, l2I
S. Ct. 2304, 150 L. H.2d 398 (2001).Cl. Kiowa Indian Tribe v. Hoove6 150 F.3d
1163(10thCir. 1998)(Indiantribecouldpursue$ 1983actioninfederalcourtagainst
individual, corporation, and statecourt judges who were exercisingjurisdiction over
tribe and seizingassetsof nibe).1In SeminoleTribe v. Florida,517 U.S. 44, 116 S.
cr. 1114, 134 L. Ed. 2d 252 (L996), the SupremeCourt held that the Commerce
Clausecannot be used as a basis to overcome states'EleventhAmendment immunity.
Section 1983 has been used to distinguish legislative from judicial acts. In
Club Misty, Inc. v. Laski, [208 F.3d 615 (7th Cir. 2000)], the court held that when
a tavern had its liquor license revoked pursuant to a vote by the residentsof the
precinct where the tavern was located, this act violated the tavern's due processof
law. The court noted that while the vote causing the revocation of the license was
not a bill of attainder or legislative punishment,the action by the voters in revok-
ing the license was a judicial act and, as such, an unconstitutional delegation of
judicial decision making to personswho are not judges. lld. at 616-22.1
Actions brought pursuant to 42 U.S.C. $ 1983 sound in tort. [City of
Montereyv. Del Monte Dunes,526 U.S. 687, 119 S. Ct. 1624, 143 L. Ed. 2d 882
(1999) (SeventhAmendment to the United StatesConstitution guaranteesa right
to trial by jury for $ 1983 actions).1Congressintended the statuteto be construed
in light of common-law principles that were well settled at the time of its enact-
ment.lKalinav.Fletcher516 U.S. 118,118S. Ct.502, I39L.Ed.2d47I (1997).1
ln Kalina, howeveq the Supreme Court noted that the coverage of $ 1983 is
broader than the pre-existing common law of torts.
The Constitution is the substantivefuel driving $ 1983, but its mechanical
structureis similar to the common law of torts. lDickson v. Burke County,303 F.3d
1271, I274-75 (1lth Ck.2002).1As with any common law tort, a $ 1983plaintiff
must establish an adequatecausal link between the alleged harm and the alleged
unlawtul conduct. IId. at I275.lln Jacksonv. Sauls,[206 F.3d 1156, 1168 (1lth
Cir. 2000)1,the court held that although $ 1983 addressesonly constitutional torts,
$ 1983 defendantsare, as in common-law tort suits, responsiblefor the natural and
foreseeableconsequencesof their actions. fSee also Hedges v. Musco, 204 F.3d
109, l2I (3d Cir. 2000) (noting that in a $ 1983 action, like its state tort law
analogs,the principle of proximate causationapplies).1
With regard to liability under $ 1983, the intent in question is the intent to
commit the act, not the intent that a certain result be achieved. lFisher v. City of
Memphis, 234 F.3d 312, 317 (6th Cir. 2000).1
UABIUTY 42 U.S.C.
UNDER S1983 s 1.01tcl

ICI Section 1983 as a Remedy for Molations of Federal Statutory Law

Where the text and sffucture of a statute provide no indication that Congress
intends to createnew individual rights, there is no basis for a private suit, whettrer it
is brought under $ 1983 or under an implied right of action. The Court also held that
FERPA s non-disclosure provisions failed to confer enforceable acts. lGonzaga v.
Doe, 536 U.S. 273, I22 S. Ct. 2268, 153 L. H. 2d 309 (2002).1ln Gonzaga,the
Court held that alleged violations of the Family Educational Rights and Privacy Act
(FERPA) [20 U.S.C. 512329] do not provide a cause of action under 42 U.S.C.
$ 1983. The Court held that where the statute conferred no specific, individually
enforceablerights, and was basedon Congress'sspendingpower, there was no cause
of action to enforce under $ 1983. The Court held that if Congresswished to create
new rights enforceableunder $ 1983,it must do so in clear and unambiguousterms.
It noted that Title VI of the Civil Rights Act of 1964 and Title D( of the Educations
Amendmentscreateindividual rights becausethey are phrased"with an unrnistalable
focus on the benefited class." (emphasisin original). fSee also Slnckley v. Svobodn,
342 F.3d 736,741 (7ttr Cir. 2003) (holding that $ 1983 could not be used to assert
alleged violations of the Family Education and Privacy Rights Act (FEPRA).]
In addition to providing a mechanism for redressing violations of federal
constitutional law, $ 1983 provides a remedy for violations of federal statutorylaw
unless the remedial devices provided in the federal statute in question are suffi-
ciently comprehensiveto demonsfratecongressionalintent to precludethe remedy
of suits under $ 1983.lBlessingv. Firestone,520 U.S. 329, 117 S. Ct. 1353,I37
L. Ed. 2d 569 (1997) (Social Security Act's Title IV-D, regarding child support
enforcement, did not give individual. a federal right under $ 1983 to force state
agency to comply with Title IV-O); Suter v. Artist M., 503 U.S. 347, Il2 S. Ct.
1360, 118 L. Ed. 2d I (1992) (private individuals did not have right to enforce a
provision of the Adoption Assistance and Child Welfare Act); Wilder v. Virginia
Hospital Ass'n,496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed.2d 455 (1990) (non-
profit associationof public and private hospitals could bring a $ 1983 action for an
allegedviolation of the Medicaid Act,42 U.S.C. $$ 1396 et seq.,becausethe Act
did not create a remedial scheme that was sufficiently comprehensive to demon-
strate congressionalintent to preclude remedies brought pursuant to it); Golden
State Transit Corp. v. City of Los Angeles,493 U.S. 103, 110 S. Ct. 444, 107 L.
Ed.2d 420 (1,989)(existenceof a comprehensiveenforcement schemeincluding
exclusivejurisdiction by the National Labor Relations Board to prevent and rem-
edy unfair labor practiceby employersand unions did not preclude a $ 1983 action
basedon governmentalinterferencewith a taxi company's labor and management
rights); Wright v. Roanoke Redevelopment& Housing Authority, 479 U.S. 418,
107 S. Ct. 766,93 L. Ed. 2d 781 (1987) (tenantsliving in low income housing
projects could sue pursuantto $ 1983 for an alleged violation of their rights under
the Brooke Amendment);Maine v. Thiboutot,404 U.S.{l, 100 S. Ct. 2502, 65 L.
Ed. 2d 555 (1980) (claim that the statedeprived personsof welfare benefitsunder
AFDC was cognizableunder $ 1983).1
s 1.0 1lcl 2OO4HANDBOOKOF SECTION1983 TITIGATION

In Frazar v. Gilbert [300 F.3d 530, 538 (5th Cir. 2002)1,the court statedthat
proof of a federal statutedoesnot by itself entitle a plaintiff to relief under $ 1983.
To obtain relief under $ 1983, a plaintiff must asserta violation of a federal right,
not merely a violation of federal law. lld.l The court held that the State'sviolations
of a consent depree provision that provided for Medicaid early and periodic
screening, diagnostic, and treatment did not give rise to individual rights
enforceableunder $ 1983.[Id. at 538-40.]Section 1983is not availableto enforce
a violation of a federal statutewhen Congresshas foreclosed enforcement in the
enactmentitself, and when the statutedid not createenforceablerights, privileges,
or immunities within the meaning of $ 1983. lSouth Camden Citizens v. New
JerseyDepartment of EnvironmentalProtection, 274 F.3d 77t,779-91 (3d Cir.
2001) (EPA regulations did not createan enforceableright under $ 1983); Grey v.
Wilburn, 270 F.3d 607, 610-11 (8th Cir. 2001) (plaintiff may not use $ 1983 to
bring an action under the Americans with Disabilities Act or Rehabilitation Act);
Padilla ex rel. Padilla v. SchoolDistrict No. l, 233 F.3d 1268,1272-74(10th Cir.
2001) (Individuals With Disabilities Act (IDEA) provides a comprehensive
enforcementschemefor protecting disabled school children's right to a free pub-
lic education, and it therefore precludes a $ 1983 lawsuit as a remedy for IDEA
violations); Endsleyv. City of Chicago, 230 F.3d 276,281-82 (7th Cir. 2000) (fed-
eral transportationstatuteplacing conditions on the operation of toll roads receiv-
ing federal funding did not createa private right of action). Seealso Kendall v. City
of Chesapeake,I74F.3d 437, 443 (4th Cir. 1999) ("The mechanismsestablished
by the FLSA precludea $ 1983 action to enforceFLSA rights."); Doe 1-13 By &
ThroughDoe Sr I-13 v. Chiles, 136 F.3d 709,714-19 (1lth Cir. 1998) (statute
requiring state Medicaid plan to provide medical assistancewith reasonable
promptnesscreatedright that was enforceableundgr $ 1983); W.B. v. Matula, 67
F.3d 484, 494 (3d Cir. 1995) (plaintiff can seek monetary damagesdirectly under
the RehabilitationAct as well as through a $ 1983 claim basedon the Act); Cline v.
Rogers,87F.3d I76,I79 (6th Cir. 1996)(no $ 1983right createdby federalJustice
SystemImprovementAct, requiring maintenanceof confidentiality with regard to
criminal history information); Legal Servicesof Northern Califurnia v.Arnett, Il4
F.3d 135, 140-4I (9th Cir. 1997) (Older Americans Act did not create rights
enforceableunder $ 1983);Jarrett v. Alexander,235 F. Supp. 2d 1208,I2I1 (M.D.
Ala. 2002) (holding that a $ 1983 action cannot be used as a mechanism for
enforcing FLSA rights).1
A federal statutethat is an appropriationsmeasureis less likely to be held to
be enforceableunder $ 1983 becausefederal courts are reluctant to infer a con-
gressionalintent to createprivate rights under appropriationsmeasures.fResident
Council of Allen Parhuay Village v. HUD, 980 F.2d 1043, 1052-53 (5th Cir.
1993).1Specific and detailed proceduresfor administrativeandjudicial review are
more likely to foreclose or preclude recourseto $ 1983. lCoos Bay Care Center v.
Oregon D epartment of H uman Serv ices, 803 F.2d 1060, 1062 (9th Cir. 1986).1See,
e.g.,Migneaultv. Peck,158 F.3d 1131 (10th Cir. 1998) (Age Discriminationin
Employment Acq29 U.S.C. $$ 621-634 (ADEA), provides sole remedy for age
TIABILITY
UNDER42 U.S.C.S 1983 s 1.01tDl

discriminationclaimsby individuals;thereis no remedyfor agediscrimination

underthe equalprotectionclause);Lafleur v. TbxasDepartrnentof Health, 126
F.zd758,760 (5th Cir. 1997)(claimof agediscrimination under$ 1983is pre-
emptedby ADEA); hmbro v. BaltimoreCity Police Department, 868F.2d1364,
1369(4th Cir. 1989)(provisionsof ADEA evidencecongressional intentto fore-
closeactionsfor agediscriminationunder$ 1983).Cf. Wudtkev. Davell, 128F.3d
1057,1063(7th Cir. 1997)(holdingthatTitle VII of theCivil RightsAct of 1964,
42 U.S.C.$$2000eto 2000e-I7,doesnot preempt$ 1983with regardto liability
violationof federallyprotectedrightsof public employees).1 An enforceable right
is created"when Congressmandates, ratherthanmerelyencourages, a specified
entitlement."fScrivnerv.Andrews,816F.2d261,263-64(6th Cir. 1987)(Federal
AdoptionAssistance andChild WelfareAct did not createa federalright to "mean-
ingful visitation"enforceableunder$ 1983).SeealsoSmithv. Kirk, 821F.2d980,
982 (4th Cir. 1987)(SocialSecurityAct sectionregardingrehabilitationservices
did not createcauseof actionunder$ 1983).1
To establishanimpliedprivateright of actionundera federalstatute,a plain-
tiff bearstherelativelyheavyburdenof demonstrating thatCongressafflrmatively
contemplated privateenforcementwhenit passedtherelevantstatute.lSuterv.Artist
M.,503U.S.347,112S.Ct. 1360,1367,I18L. Ed.2dI (1992):Vctorianv. Miller
813F.2d718,721(5thCir. 1987).1

tDl Whether Exhaustionls RequiredPrior to Bringinga

S 1983 Lawsuit

Thereis no requirementthat a plaintiff exhauststateremediesprior to filing a

$ 1983 lawsuit.lHeckv. Humphrey, 512U.S.477, 114S. Ct. 2364,t29 L. Ed. 2d
383(I99D; Patsyv.FloridaBoardof Regents, 457U.S. 496,I02 S. Ct. 2557,73 L.
Ed.2d 172(1982);Wudtkev. Davel,128F.3d1057,1063(7th Cir. 1997):Hopkins
v. OklahomaPublic Employees RetirementSystem,150F.3d 1155,1157-58(10ttr
Cfu.1998)(retiredstateemployeewasnot requiredto exhausthis stateadministra-
tive remediesprior to bringing $ 1983lawsuit againstpublic employeesretirement
system).Cf. Pins v. Boardof Education,869 F.2d555 (10th Cir. 1989)(tenured
teachercouldnotwaivestateprocedural stepsandthenclaimdenialofdueprocess).1
It is a longstandingprinciplethat a statemay not immunizeitself from the require-
mentsof federallaw. [ZSO,Ltd. v.Stroh,205F.3d1146,1160(9thCir. 2000).]
A statecannotrequirethat a litigant filing a $ 1983actionin statecourtfol-
low a statenoticeof claimprocedure. lFelderv. Casey,487U.S. 137,108S. Ct.
2302,I0l L. Ed. 2d I23 (1988).1 SeealsoNicholasv. Wallerstein, 266F.3d1083,
1088(9th Cir. 2001)(notingthat if a constitutionalright is denied,a statestatute
cannotexcusethe denial).
In a $ 1983actionbroughtunderthe IndividualsWithbisabilities Education
Act (IDEA), however,theplaintiffmustexhaustadministrative remediesavailable
underthe IDEA. fFrazierv. FairhavenSchoolCommittee, 276F3d 52, 60 (lst
Cir.2002).1
s 1.01
tEl 2OO4HANDBOOKOF SECTION
1983 LITIGATTON

lEl Prohibition Against S 1983 Being Used to Challengethe

Fact or Duration of Confinement

A $ 1983 action cannotbe usedto challengethe fact or durationof confine-

ment in a penal institution or to obtain damagesfor the underlying conduct for
which the plaintiff has been convicted.lHeck v. Humphrey,512 U.S. 477, II4 S.
Ct. 2364, 129L. Ed. 2d 383 (1994);Preiserv. Rodriguez,4l 1 U.S. 475, 93 S. Ct.
1827,36L. Ed. 2d 1973(1974).)InEdvvardsv. Balisok[520 U.S. 641, | 17 S. Ct.
1584, 137 L. Ed. 2d 906 (1997)),the Court held that a prisoner'sclaim for dam-
agesand declaratoryrelief, brought becausea prison disciplinary hearingofficer
deniedthe prisoner30 days of good-timecredit he had previouslyearnedtoward
his release,was not cognizableunder $ 1983.The basis for the court's decision
was that the prisoner'sslsirn-exculpatory evidencewas excludedas a result of
the bias of the hearing officer-would have implied the invalidity of the depriva-
tion of the good-timecredits.
In Williams v. Wisconsin[336 F.3d 576, 580 (7th Cir. 2003)], the court held
that when a paroleecommenceda $ 1983 action againststateofficials solely in
their official capacities,the paroleewas unableto makea claim for damagesunder
$ 1983.But in Ramirezv.Galaza[334 F.3d850,854-59(gth Cir. 2003)],the courr
held that the "favorabletermination"rule doesnot apply to $ 1983 lawsuitschal-
lenging a prison disciplinaryhearingor administrativesanction.
In Dotsonv. Wilkenson[300 F.3d 661,663 (6th Cir. 2002)1,the court held that
a prisoner'schallengeto his or her parole eligibility which does not necessarily
affectthe durationof his conflnementis a suit cognizableunder$ 1983.[Id. at 666.]
The prisonerbrought a $ 1983 lawsuit challengingthe retroactiveapplicationof
stateparoleeligibility regulationsand claimedthat paroleofficials' actionsdenied
him due processand violatedthe ex postfacto clause.The court notedthat the deci-
sion to grant a prisoner parole affects the duration of the prisoner'ssentence,and a
challengeto that decisionis not cognizableunder$ 1983.[Id. at665.Seealso Ruffv.
Runyon,258 F.3d 498, 502 (6th Cir. 2001) (holding that Heck v. Humphreyapplies
equally to an action brought underBivens, so that a federal prisoner could not bring
a Bivensactionuntil demonstratingthat his convictionhasbeendeclaredinvalid or
otherwiseimpugnedas set forth in Heck); Hainze v. Richards,207F.3d795,798-
99 (5th Cir. 2000) (plaintiff's convictionof assaultand batteryin statecourt barred
his $ 1983action againstdeputiesbasedon the sameevents).1
In Reed v. McKune [298 F.3d 946,953-54 (1OthCir. 2002)], the court held
that a prisoner had no causeof action for money damagesunder $ 1983 against
paroleofficials that was basedon their allegedlyunconstitutionalfailure to release
the prisoneron parole,in the absenceof a showingthat his convictionor sentence
had beeninvalidated.Where the prisoner,however,seeksinjunctiveor declaratory
relief to coffect constitutionallydefectiveparoleprocedures,$ 1983remainsavail-
able.lld. at954.l
In Heuey v. Stine [230 F.3d 226, 229-30 (6th Cir. 2000)], the court held
that Heck v. Humphreyrequiresthat a $ 1983plaintiff prove that the convictionor

10
UABIUTYUNDER42 U.S.C.S 1983 s 1.01tEI

sentence underlying the constitutional claim was favorably terminated. This

applies to prisoner allegations of due process violations in prison disciplinary
hearingsresultingin the deprivationof good-timecredits.If a claim is foundedsolely
on an allegation that a corrections officer falsified a misconduct report, Heck v.
Humphrey blocks a prisoner's claim for relief under $ 1983. In Heuey, the court
held that a prison hearing officer's finding the prisoner guilty of assaultand bat-
tery barred the prisoner's subsequent$ 1983 claim. lld. at 230-3L. See also
Sarlund v. Anderson,205 F.3d 973,975-76 (7th Cir. 2000) (fugitive's claims were
baned ander Heck doctrine becausethey implied the invalidity of his conviction;
furthermore, fugitive-disentitlementdoctrine required dismissalof his $ 1983 law-
suit); Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) (it a stateprisoner's
claim with regard to procedural due processwould necessarilyimply invalidity of
the judgment or continuing confinement, then it must be brought pursuant to a
petition for writ of habeascorpus); Williams v. Hopkins, 130 F.3d 333, 335 (8th
Cir. 1997) (stateprisoner challenging the fact or duration of a sentenceof impris-
onment and asking for immediate or speedierreleasemust use a federal remedy
through federal habeascorpus and cannotbring a claim under $ 1983);McCurdy v.
Sheriff of Madison County, 128 F.3d 1142, II45 (7th Cir. 1997) (convicted crimi-
nal who brings a civil rights suit that, if successful,would demonstratethe inva-
lidity of his conviction must show that the conviction has been invalidated);
Andersonv. Countyof Montgomery,ll1 F.3d 494,498-500 (7th Cir. 1997) (alle-
gations that prosecutorand defenseattorney coercedplaintiff's plea and conspired
with the court reporter to obtain his conviction could not be pursuedunder $ 1983
when conviction was undisturbed,even though the plaintiff was no longer in cus-
tody); Forem.anv. RichmondPolice Department,104 F.3d 950,962 n.4 (7th Cir.
1997) (noting that plaintiff could not recoverunder $ I 983 if his claims would nec-
essarily undermine the validity of his convictions); Crow v. Henry, 102 F.3d 1086
(10th Cir. 1997) (under Heck, inmate's federal civil rights claims were barred
when he attackedthe validity of the searchsurrounding his parole revocation).1
In Beck v. City of MuskogeePoliceDepartment[195 F.3d 553,557 (10th Cir.
1999)1,the court held that in order for a $ 1983claim necessarilychallengingthe
validity of a conviction or sentenceto be cognizable,the caseof Heck v. Humphrey
[512 U.S. 477, 114 S. Ct. 2364, 129L. Ed. 2d383 (1994)] requiresthe conviction
or sentenceto have previously been invalidated. The court also noted that under
Crow v. Henry [102 F.3d 1086 (10th Cir. 1997)], an inmate'sfederal civil rights
claim challenging a parole or probation revocation cannot be maintained until the
revocation has been invalidated. lld.l In Beck, the court held that claims for mali-
cious prosecutionand Brady claims were ripe, while a claim relating to probation
revocation was not. [195 F.3d at 560. Seealso Beets v. TexasBoard of Pardons &
Paroles,205 F.3d 192, I93 (5th Cir. 2000) (federalcourts lack jurisdiction under
$ 1983to stay executionsfor capital crimes);Simpsonv. Rpwan,73 F.3d 134 (1th
Cir. 1996) (illegal searchand arrest claims are not baned by Heck); Cameron v.
Fogarty,806 F.2d 380, 388-89 (2d Cir. 1986) (conviction bars $ 1983 action for
alleged arrest without probable clause);Hale v. Harney, 786 F.zd 688, 690-91

11
s 1 .01I F I 2OO4HANDBOOKOF SECTION
1983 LITIGATIO\

(5rh Cir. 1986) (litigants may not obtain review of state court actions by filin.
complaintsabout those actions in lower federal courts cast in the form of cir -,
rightssuits).1
If an appealof a criminal conviction is pending,the dismissalof the $ 198-:
actionshouldbe madewithoutprejudice.lPerezv. Sifel,57F.3d503,505 (7th Cir
1995);Schaferv. Moore,46 F.3d 43,45 (8th Cir. 1995);Trimblev. Ciry of Santc
Rosa,49F.3d583,585(gthCir. 1995);Fottlerv.UnitedStates,73F.3d 1064(10t1
Cir. 1996).1

tFl Limitations on S 1983 Challengesto Extradition

Section1983hasextremelylimited valuewith regardto attackingextradition

proceedings.InKnowlin v. Thompson1201F.3d907, 908-10(7th Cir. 2000)1,the
court held that a Wisconsinprisonercould not bring a $ 1983 claim against
Arkansaslaw enforcementpersonnelfor damagesbecause,in order to prevail in
suchan action,the plaintiff would necessarilyhaveto show a prior parolerevoca-
tion in Wisconsin was invalid. The plaintiff had been set free on parole in
Wisconsin.He subsequentlyviolated the conditionsof his parole,left Wisconsin.
and was arrestedin Arkansas.Before plaintiff was given an opportunityto contest
extradition,he was extraditedback to Wisconsin and imprisoned for the parole
violation. The court said that in order for the plaintiff to succeedin his $ 1983
actionfbr monetaryrelief, he would haveto provehe sufferedsomedeprivationof
liberty greaterthan that which he would have sufferedthrough extraditionin full
compliancewith the ArkansasUniform Criminal ExtraditionAct. That showing.
in turn, would necessarilyimply the invalidity of his Wisconsinparolerevocation.
which, underHeck v. Humphrev[5 12 U.S. 477, I 14 S. Ct. 2364, 129L. Ed. 2d 383
(1994)1,cannot be shown through a $ 1983 suit. The $ 1983 action was thus
barred.fSeealso Kennonv.Hill, 44F.3d 904 (10th Cir. 1995)(failure to hold hear-
ing requiredby Kansaslaw after issuanceof secondextradition warrant did not
violate due process);Yellenv. Coope4 828 F.zd 1471 (10th Cir. 1987) (no viola-
tion of extraditionpretrial rights when prisonerhas waived them). Cf. Eldridge v.
Rock,832F.2d I I 32, lI37 -38(9th Cir. 1987)(violationof federalextraditionlaws
states$ 1983 claims); Good v. Allain, 823 F.2d 64, 61 (5th Cir. 1987) (extradited
inmate who had been convictedand sentencedcould not challengehis return to
that statein a $ 1983action;hemustusefederalhabeasprocedure).1
In Cole v. Williams 1798F.2d 280,282-83 (lOth Cir. 1986)1,the court held
that the plaintiffs were properly awardedonly nominal damagesfor failure to take
them before a magistratein Arkansasbefore they were returnedto Oklahoma.

tcl Section 1983, Voting, and Elections

There are only narrow groundsunder $ 1983for challengingelectioninegu-

lalities;$ 1983is implicatedonly whenthereis "wilful conductwhich undermines
the organicprocessesby which candidatesare elected."fBodine v. Elkhart County

12
uABtuTYUNDER
42 U.S.C.
S1983 s 1.01tHl
Election Board,788 F.2d 1270, I27I-72 (7th Cir. 1986).1Garden-varietyelection
inegularities can be dealt with through the procedures in state law. fBennett v.
Yoshina,140 F.3d I2I8, 1226 (9th Cir. 1998); Dieckhoff v. Severson,915 F.3d
1145,1150(7th Cir. 1990).Cf. Bushv. Gore,531U.S. 98,I2I S. Ct. 525, 148 L.
Ed.2d 555 (2000) (holding that Florida SupremeCourt violated equal protection
and fundamental right to vote in setting up standardlessprocedures for vote
recount in presidential election).1
In ldaho Coalition Unitedfor Bearsv. Cenarrussa[342F.3d 1073,1076(gth
Cfu.2003)1,the court held that voting is a fundamental right subject to equal pro-
tection guarantees.The court also held that equal protection guaranteesapply to
ballot accessrestrictions.The court held that the requirement that initiative spon-
sors obtain signaturesfrom at least 6 percent of the voters of at least half of the
state's counties violated equal protection. This was becauseit gave preferential
treatment to residentsof sparsely populated counties and the statute's legitimate
ends could be achievednon-discriminatorily by increasing the statewidepercent-
age of signaturesrequired.
ln CIub Misty, Inc. v. Laski [208 F.3d 615 (7th Cir. 2000)], the court held that
when a tavern had its liquor license revoked pursuant to a vote by the residentsof the
precinct where the tavern was located,the liquor licensee'sright to due processof
law was violated. The court noted that while the vote causing the revocation of the
license was not a bill of attainder or legislative punishment, the action by the voters
in revoking the licensewas a judicial act and, as such,was an unconstitutionaldele-
gation of judicial decisionmaking to personswho are notjudges. fld. at616-22.1
ln Mahone v.Addicks Utility District [836 F.2d 921,927-29 (5th Cir. 1988)],
the court held that an action could not be brought under $ 1983 for an alleged alter-
ing of a utility district so as to deny the right to vote. [See also Wheeler v.
Swimme4835 F.2d 259 (l0th Cir. 1987)($ 1983providedno independentremedy
for claims concerning a Cherokeenational election; the federal courts had no sub-
ject matterjurisdiction over tribal election dispute, despitethe Indian Civil Rights
Act); Thompsonv. WoodaU,8I9 F.zd 1052 (1lth Cir. 1987) (allegation that polit-
ical party refused to permit candidateto run for local office did not support claim
when there was no pattern, merely isolated incidents; "garden variety" stateelec-
tion disputes do not constitute a violation under $ 1983); Kasper v. Board of
Election Commissionersof City of Chicago, 814 F.zd 332, 342 (7th Cir. 1987)
(violation of stateelection law does not support $ 1983 claim); Lunde v. Oldi, 808
F.zd 2I9 (2d Cir. 1986) (voter whose ballot was not counted could not maintain
$ 1983 claim when he failed to allege that election officials actedin an intentional,
reckless,or grossly negligent manner).]

lHl The RelationshipBetween S1983 and BivensActions

Normally, a $ 1983 action cannot be brought afainst a federal official.

fFlamingo Industries,Ltd. v. United StatesPostalService,302F.3d985, 997 (9th
Cir.2002) (becausethe United StatesPostal Service acts under federal law, $ 1983

t3
s 1.01
[rl 1983 TITIGATION
2OO4HANDBOOKOF SECTION

does not allow for a lawsuit based on actions taken under color of federal law).]
But in Bivens v. Six Unknown NamedAgents of Federal Bureau of Narcotics [403
U.S. 388, 91 S. Ct. 1999,29L. Ed. 2d 619 (1971)1,the SupremeCourt held that
an action could be brought againstafederal officer personallyfor an allegedvio-
lation of federalli protected rights. However, a Bivens action may not be brought
againsta stateactor.lMartinezv.City of Los Angeles,I4l F.3d 1373,1382-83(9th
Cir. 1998).Seealso Stewartv. Evans,275 F.3d 1126 (D.C. Cir. 2002) (warrantless
search of employee's private papers stated a Bivens claim under O'Connor);
Rogersv. Vicuna,264F3d 1, 4 (1st Cir. 2001) (holding that Bivensoffers redress
for constitutionalviolationsunder color of federallaw, while $ 1983offers redress
for constitutional violations under color of statelaw); Jonesv. City of Jackson,203
F.3d 875, 880 (5th Cir. 2000) (holding that the Fifth Amendmentappliesonly to
violations of constitutional rights by the United States or a federal actor).1
Nevertheless, a Bivensactionis analogousto an actionunder $ 1983;the only dif-
ferenceis that $ 1983appliesto constitutionalviolationsby state,ratherthan fed-
eral, officials.fEvansv. Ball, 168 F.3d 856,863 n.l0 (5th Cir. 1999);Gordonv.
Hansen,168F.3d 1109,ll13 (8thCir. 1999).1
There is no difference with regardto the immunities afforded federal officials
in a Bivensaction as comparedto thoseaffordedstateofficials in a $ 1983action;
the qualified immunity defenseis the same.fWilson v. Layne,526 U.S. 603, 609,
119 S. Ct. 1692,143 L. Ed. 2d 818 (1999);Harlow v. Fitzgerald,457 U.S. 800,
818 n.30, 102S. Ct.2727,73L.F,d.2d396 (1982);PuebloNeighborhoodHealth
Centersv. Losavio,847 F.zd642,627 n. 3 (10th Cir. 1988).Seealso Applewhitev.
United StatesAir Force, 995 F.zd 997, 1000-01 (10th Cir. 1993) (in a Bivens
action, federal officers were entitled to qualified immunity in connection with a
strip search when they could reasonably have believed an airman's wife was a
participantin a drug sale).1
In Ruff v. Runyon [258 F.3d 498, 502 (6th Cir. 2001)], the court held that
Heck v. Humphrey appliesequally to an action brought under Bivens, so that a fed-
eral prisonercould not bring a Bivens action until demonstratingthat his conviction
has been declaredinvalid or otherwise impugned as set forth in Heck. But Bivens
does not confer a right of action for damagesagainstprivate entities acting under
color of federallaw.lCorrectional ServicesCorporationv. Malesko, 534 U.S. 61,
122 S. Ct. 5 I 5, I 5 I L. Ed. 2d456 (2001).1In Malesko,the Court held that a former
federal inmate could not lusea Bivens theory to sue a private corporation that had a
contract with the federal Bureau of Prisonsto operatea halfway house.The inmate
had alleged that he suffered a heart attack when he was forbidden from using the
elevator by the halfway house operator.The Court noted that the inmate had the
right to view his claim pursuantto the BOP's administrativeremedy program.

tll Section 1983 Actions Against the Military

Generally speaking,neither a $ 1983 action nor a Bivens claim may be

brought against the military. fJones v. New York State Division of Military, 166

14
 UNDER42 U.S.C.S 1983
LIABILITY s 1.01
tr l

F.3d45, 50 (2d Cir. 1999);Sebrav. Neville,801F.2d 1135,1142(gth Cir. 1986).

Seealso Chappellv. Wallace,462U.S. 296, 103 S. Ct.2362,76 L. Ed. 2d 586
(1983) (enlistedpersonnelmay not pursueBivens action againstmilitary for dis-
crimination basedon race);Holdinessv. Stroud, 808 F.2d 417, 422-23 (5th Cir.
1987) ($ 1983 action could not be maintainedfor injuries sufferedas a result of
actions taken by military superiors);Walden v. Bartlett, 840 F.2d 77I, 112-73
(10th Cir. 1988).1However,a $ 1983 action was held viable againstthe state
nationalguard when only equitablerelief was sought.fWiggintonv. Centracchio,
205 F.3d504,511-12(1stCir. 2000).1

tll Age Discriminationand S 1983

Age discriminationclaims brought under $ 1983 are preemptedby the Age

Discrimination in Employment Act, 29 U.S.C. $$ 621-634. lMigneault v. Peck,
158F.3d 1131(lOth Cir. 1998)(ADEA providessoleremedyfor agediscrimina-
tion claims by individuals; there is no remedy for age discriminationunder the
equalprotectionclause);seealso Lafleur v. TexasDepartmentof Health, 126F.zd
158,160 (5th Cir. 1997)(claim of age discriminationunder $ 1983is preempted
by ADEA); Zombro v. Baltimore Citl' Police Department,868 F.2d 1364, 1369
(4th Cir. 1989) (provisionsof ADEA evidencecongressionalintent to foreclose
actionsfor age discriminationunder $ 1983).1
A mandatoryretirement age for statejudges has been held not to violate
equalprotectron.lGregoryv.Ashcroft,501U.S. 452, 111 S. Ct. 2395, | 15 L. Ed.
2d 410 (1991).Seealso Crozierv. Howard, 11 F.3d961,972-73(1OthCir. 1993)
(college'scompulsoryretirementpolicy did not violate equalprotectionof tenured
professor).1

tKl Americanswith DisabilitiesAct and S 1983

In Vinsonv. Thomas [288 F.3d 1145, | 156 (9th Cir. 2002)1,the court held
that a plaintiff cannotbring an action under $ 1983 againsta stateofficial in her
individual capacity to vindicate rights createdby Title II of the Americanswith
DisabilitiesAct (ADA).

tll Title lX and S 1983

Title IX of the EducationAmendmentsof 1972 [20 U.S.C. $$ 1681-1688]

allows studentsto bring claims directly under the statutefor genderdiscrimina-
tion.lDavisv. MonroeCountyBoard of Education,527 U.5.629, | 19 S. Ct. 1661,
l45L.Ed.2d 839 (1999).1The courtsare split, however,with regardto the via-
bility of a $ 1983claim basedon a violation of Title IX, with somecourtsholding
that Title IX's remedial scheme is sufficiently comprehensiveas to bar such
actions,while othercourtsdisagree.lCompareBruneauv. SouthKortwright Central
SchoolDistrict, 163 F.3d149 (4th Cir. 1998)(femalesixth-gradestudentcould not
bring an actionunder$ 1983for peer-on-peer sexualharassment); Seamonsv. Snow,

15
s 1.01tM l 2OO4HANDBOOKOF SECTION
1983TITIGATIO\

84 F.3d 1226, 1234n.8 (10th Cir. 1996),afrer remand,206 F.3d 1021, 1029-3i
(10th Cir. 2000) (studentcannot bring $ 1983 action predicatedon violation ot
Title IX itself) with Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir. 1997
("[T]here is no evidencethat Congressintendedto foreclosethe use of $ 1983 to
redressviolations of Title IX."); Seamonsv. Snow,84 F.3d 1226, 1233-34(10th
Cir. 1996) ("Title IX containsno comprehensiveenforcementscheme"and there
is no evidenceof congressionalintent to makeit the exclusiveremedy);Doe v. Ola
RochesterRegionalSchoolDistrict,56 F. Supp. 2d Il4, 118 (D. Mass. 1999,
(althoughthe SupremeCourt has ruled that CongressintendedTitle IX to include
a private causeof action and that the statuteincluded a damagesremedy,it does
not necessarilyfollow that the Title IX schemeof recoveryis so "comprehensive"
as that term is usedby the SupremeCourt to precluderecoveryunder $ 1983).1
In Doe v. City of Roseville[296F.3d 431,440-41(6th Cir. 2002)], the court
held that a schoolsuperintendent could not be held liable under $ 1983and Title IX
for a teacher'ssexualabuseof a child where the superintendentwas not awareof
the teacher'spast history of sexualabuseand the supervisordid not participate.
encourage,authorize,or acquiescein the unconstitutionalconduct.ln Klemencict'.
Ohio State University 1263F.3d 504, 510-l l (6th Cir. 2001)1,the court held that
it is possiblefor an educationalinstitution to be a defendantin both $ 1983 and
Title IX actions,and,when suedundereitherstatute,an institutioncannotbe liable
for acts of its employeesunder a theory of respondeatsuperior.When sexual
harassmentof a studentby a school employeeis at issue in either a $ 1983 or a
Title IX action,the schoolis liable only for its own actions.In $ 1983cases,a school
would be liable only if a teacheracted pursuantto an official policy; in Title IX
actions,a school would be liable only if it receivedactual notice of harassment
and respondedwith deliberateindifference.IId. at 511.1 In both $ 1983 and
Title IX cases,an institution can be liable only if underlying sex discrimination
occurred.
In one case,the court held that a qualifiedimmunity defensewas availableto
a public official in a Title IX action brought pursuantto $ 1983.lDoe v. Petaluma
Ciry SchoolDistrict,54 F.3d 1447,1449-50(gth Cir. 1995)(court did not reach
issuewhetherTitle IX action could be brought againstan individual under $ 1983,
only that official was entitledto immunity becausehe did not havea clearly estab-
lished duty to preventpeer sexualharassmentof studentat time of his conduct).1
It has also been held that there is no constitutionalright to participatein
intercollegiateathletics.fKarmanosv. Baker 816 F.2d 258,260 (6th Cir. 1987).1

tMl Section 1983 and State Courts

The SupremeCourt has held that the statesmust permit $ 1983actionsto be

brought in their courts;federal and statecourts have concurrentjurisdiction over
42 U.S.C.$ 1983actions.fHowlettv.Rose,496U.S.356,358,380-81, 110S. Ct.
2430, | 10 L. Ed. 2d 332 (1990).1In Howlert,the Court held that a $ 1983lawsuit
allegingthat an assistantprincipal madean illegal searchof a high schoolstudent's

16
LIABITITY
UNDER42 U.S.C.S 1983 s 1 . 0 1 lNl

.-arhad to be entertainedin a statecourt because,under the SupremacyClause,the

Constitutionand laws passedpursuantto it are as much laws in the Statesas laws
passedby the statelegislature.The Court noted that the Stateretained its Eleventh
-\mendment immunity in a $ 1983 statecourt action but could not raise the defense
of sovereignimmunity under statelaw.
It is accordingly clear that federal and statecourts now have concurrentjuris-
diction over $ 1983 actions. [Yellow Freight System,Inc. v. Donnelly, 494 U.S.
820, 110 S. Ct. 1566,108L. Ed.2d 834 (1990) (holding that statecourtshavecon-
current authority to adjudicatefederal claims brought under Title VII of the Civil
RightsAct of 1964,42 U.S.C. $2000e et seq.).1And,a statecannotin any way
impedethe right to maintain a $ 1983action with proceduralrequirements.lFelderv.
Casey,487U.S. 137, 108 S. Ct. 2302, LDl L. Ed. 2d 123 (1988) (in a state
$ 1983action,statenotice-of-claimprovision is preemptedby $ 1983and may not
be a prerequisite to filing suit).1 In Dubuc v. Michigan Board of lnw Examiners
1342F.3d610,617 (6th Cir. 2003)1,the court held that the statebar could not pro-
vide absoluteimmunity from a $ 1983 lawsuit for state bar officials; no state law
or rule can immunize anyone from liability for violating the United States
Constitution.[Cf. Johnsonv. FankeU,520 U.S. 911, ll7 S. Ct. 1800,138 L. Ed.
2d 108 (1997) (stateofficials do nothave a federal right to an interlocutory appeal
of a denial of qualifiedimmunity in a $ 1983 action in statecourt).1
A remedial court order cannot per se serveas a substantivebasisfor a $ 1983
claim for damagesbecausesuch orders do not createrights, privileges, or immu-
nities securedby the constitution and laws. lBeck v. Lynaugh, 842 F.zd 759,762
(5th Cir. 1988); Galloway v. Louisiana, 817 F.zd 1t54, 1157 (5th Cir. 1987);
Greenv. McKaskle,788F.zd 1116, 123 (5th Cir. 1986).1

tNI Section 1983 and StateTax Systems

The federal principle of comity, together with the Tax Injunction Act, 28
U.S.C. $ 1341,bar a $ 1983actionagainststatetax officials engagedin the process
of tax collection.lPennhurstStateSchool & Hospital v. Halderman, 469 U.S. 89,
122, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); Califurnia v. GraceBrethrenChurch,
457 U.S. 393, 102 S. Ct. 2498, 73 L. Ed. 2d 93 (1982); Fair Assessmentin Real
EstateAss'nv. McNary,454 U.S. 100, 102 S. Ct. 177,70 L. Ed. 2d 271 (1981).1
lnWright v. Pappas[256F.3d635,636-38 (7th Cir. 2001)], the court held that the
Tax Injunction Act, 28 U.S.C. $ 1341, baned an action by an African American
purchaserof tax liens who brought a $ 1983 action seeking damagesarising from
the county treasurer'salleged misrepresentationof value of propertiesbecauseof
the purchaser'srace. Further, the existenceof an adequatestate remedy has been
held to precludea plaintiff from obtaining declaratoryor,injunctive relief under 42
U.S.C. $ 1983from a statecourt to preventthe collectionof statetaxes.fNational
Private Truck Council, Inc. v. OklahomaTax Commission,5I5 U.S. 582, 115 S.
Ct.235I,I3LL.Ed.2d 509 (1995);Sproulv.City of Wooste4840 F.2d 1267,12'70
(6th Cir. 1988) (existenceof tax appealsprocedureunder Michigan law foreclosed

17
s 1.01tol 2OO4HANDBOOKOF SECTION
1983TITIGA

procedural
dueprocess claimunder $ 1983);Brooksv.
Nance,801 F.2d1237(l
Cir. 1986)(allegedillegal seizureof untaxedcigarettescould not be basis
$ 1983action).1

IO1 The SecondAmendmentand S 1983

In Silveirav.Loclcyerl3I2F.3d 1052,1066-67(9ttrCir. 2002)1,

thecourt
that the SecondAmendmentdoesnot conferupon stateresidentsany individual ri
to own or possessguns or other firearms,and therefore,residentshad no standing
attack the constitutionalityof California's Assault WeaponsControl Act.
1299F.3d 1077, 1090 (9th Cir. 2002)1,t
In King Countyv. Rasmussen
court held that a landownercould not raise a SecondAmendment claim in a $ 1
lawsuit where he did not allege that the violation occurred pursuant to a cou
custom or policy.
In Gardner v. Vespia1252F.3d500 (1st Cir. 2001)1,a plaintiff who had pre-
viously been convictedof misdemeanordomesticassaultbrought a g 1983 acti
against a police chief in connection with the denial of his application to purchase
a firearm. The court held that even if the chief violated statelaw, it was a not a vio-
lation of the applicant's Second or Fourteenth Amendment rights. The Second
Amendment does not confer an absoluteright to bear arms. [Id. at 503. Cf. United
Statesv. Emerson,270F.3d203,218-21(5thCir. 2001)(recognizingthat Second
Amendment protects the right of individuals to privately keep and bear their own
firearms, regardlessof whether the individual is a member of a militia). Seealso
Love v. Pepersack,47 F.3d 120,122 (4th Cir. 1995)(in a $ 1983action,court holds
that the SecondAmendment does not apply to the states,and also statesthat the
SecondAmendment preservesonly a collective, rather than an individual, righ0.l

s 1 .0 2 ENTITIES OR PERSONS WHO MAY BRINCACTIONSOR

B ES UE DUNDE R4 2 U. S . C.S 1 9 8 3

IAI Plaintiffs
An actionmay be broughtunder42 U.S.C. $ 1983to vindicatethe federallypro-
tectedrights of personsinjured by the acts of stateand local officials. A civil rights
action is personalin nature and can be brought only by the person or entity suffering
the injury. lConn v. Gabbert,526U.S. 286,292, 119 S. Ct. 1292,I43 L.Bd.2d399
(1999) (lawyer had no standingto assertclaim of client that she was deniedright to
confer with attorney while testifying before a grand jury).1 Such an action does not
accrueto a relativeor others;the plaintiff herselfmust have standing.
In Dubbs v. Head Start, Inc. [336 F.3d lI94,I20I-04 (1OthCir. 2003)], the
court held that parents of children had standing to assert a Fourth Amendment
claim on their children's behalf based on allegations that the children were sub-
jected to intrusive physical examinations, which included genital examinations
and blood tests, without parental notification or consent. However, the parents

t8
 UNDER42 U.S.C.S1983
UABTUTY s 1.02tAl

could not assertan independentFourth Amendment claim of their own. lSee also
Siebert v. Severano,256 F.3d 648 (7th Cir. 2001) (holding that the husband of a
horse owner lacked standing to bring an action against an investigator who seized
the horseswithout a warrant, in violation of the Fourth Amendment).lIn Siebert,
the husband admitted that he did not own the horses and the ownership papers
were all in the horse owner's name. lld. at 655. See also Harpole v. Arkansas
Department of Human Sentices,820 F2d 923,927-28 (8th Cir. 1987) (grand-
mother could not recover for death of grandchild); Johnson Estate v. Village of
Libertyville, 819 F.2d 174, I77-78 (7th Cir. 1987)(parentscould not bring $ 1983
action for pain and suffering of child); Smith v. City of Fontana, 818 F.zd l4ll,
l4I7 (9th Cir. 1987) (decedent'schildren could not assert a Fourth Amendment
claim when their father died because of force used during an anest); Ortiz v.
Burgos,807 F.2d 6 (1st Cir. 1986) (stepbrother,brothers,and sistersdid not have
a protected liberty interest in the companionship of brother who was beaten to
death);Martin v. Sargent,780F.2d 1334, 1337 (Sth Cir. 1985) ('A prisonercan-
not bring claims on behalf of otherprisoners.");Coon v. Ledbetter 780 F.2d 1158,
1160 (5th Cir. 1986) (wife who was not inside trailer when it was fired upon could
not sue);Dohaish v. Tboley,670 F.zd 934,936 (10th Cir. 1982) (fatherof student
could not bring $ 1983 action for allegedfailure to prosecutepersonwho killed his
son). ff Sherrodv. &erry,827 F.2d I95,207-08 (7th Cir. 1987),vacatedon other
grounds,856 F.2d 802 (7th Cir. 1988) (parentmay recover for loss of parental
association).1
ln Carroll v. Nakatani [342F.3d 934, 940 (9th Cir. 2003)], the court held that
even if a goverrrmentactor discriminates on the basis of race, the resulting injury
affords a basis for standing to raise an equal protection challenge only to those
personswho were personally denied equal treatment.The court noted that when a
plaintiff brings an equal protection challenge to a race-consciousprogram and
seeksforward-looking relief, the injury, as required to establishstanding,is not the
inability to obtain the benefit but rather the inability to competeon an equal foot-
ing.fld. at94l.l
Generally, a governmental entity may not bring a federal lawsuit against
another governmental entity. lStanley v. Darlington County School District, 84
F.3d 707,717 (4th Cir. 1996) (noting that federalcourts may not be called upon,
in the first instance,to adjudicate what is essentially an internal dispute between
two local governmentalentities, one of which is assertingunconstitutionalconduct
on the part of the other).1There is a split in the caseswith regard to whether a pub-
lic corporation may bring an action as a plaintiff under $ 1983.The court in South
Macomb Disposal v. Townshipof Washington[790 F.2d 500 (6th Cir. 1986)] held
that municipalities dre personsthat theoretically can sup under $ 1983 but under-
scoredthat the plaintiff must still asserta constitutional violation for which it can
obtain relief. Becausethe FourteenthAmendment does not protect political sub-
divisions, the plaintiff in South Macomb could not maintain its action. Similarly,
inBranson SchoolDistrict RE-82v. Romer 16l F.3d 619,628-30(10th Cir. 1998),
the court held that a municipality could not bring a constitutional challengeagainst

19
s 1.o2tBl 2OO4HANDBOOKOF SECTION
1983TITIGA

its creating State when the constitutional provision that supplied the basis for
complaint was written to protect individual rights, as opposed to collective
structural rights.
It has also been held that the creation of a State.such as a universitv.
bringa $ 1983action.lUnitedStatesv.Alabama,79I F.zd 1450,1455(11th
1986).1Also, generally speaking,an entity cannot assertthe constitutional ri
of another.lClty of Reverev. Massachusetts GeneralHospital,463 U.S. 239, 70
S. Ct. 2979,77 L. Ed. 2d 605 (1983).1
However, a private corporation is protected by some provisions of thc
Constitution.lUnitedStatesv. RochuellInternational Corp., I24F.3d II94,I20l
(10th Cir. 1997) (noting that a corporatedefendantis entitled to the protectionsof
the Due ProcessClause).1
A fugitive generally cannot bring a $ 1983 action; his or her claims are usu-
ally barred under the fugitive disentitlement doctrine. fSarlund v. Anderson, 205
F.3d973,975-76 (7th Cir. 2000). Cf. Degenv. United States,517 U.S. 820, 116 S.
Ct. 1777, 135 L. Ed. 2d 102 (1996) (fugitive disentitlement docrrine does nor
apply when there will not be an unusual inconvenienceon the court or on his or
her adversaries).1

tBl Standing and Rights Under Survivorship Laws

[1] Standing

In a $ 1983 action, "[t]he plaintiff generally must asserthis own legal rights
and interests,and cannot rest his claim on the legal rights or interestsof third par-
ties;' fConn v. Gabbert, 526 U.S. 286, 292, 119 S. Ct. 1292, 143 L. Ed. 2d 399
(1999) (holding that a lawyer had no standingto assertclaim of client that she was
denied right to confer with attorney while testifying before a grand jury). Seealso
ArizonansforOfficialEnglishv.Arizona,520U.S.43,68-69,117S. Ct. 1055,137
L. Ed. 2d 170 (1997) (no standingfor employee who resignedfrom stateemploy-
ment who filed $ 1983 action to challenge constitutional amendment making
English the state'sofficial language).1
In Siebertv. Severano[256F.3d 648 (7th Cir. 2001)], the court held that the
husbandof a horse owner lacked standing to bring an action against an investiga-
tor who seized the horses without a warrant. in violation of the Fourth
Amendment. However, in MacDonald v. Safir [206 F.3d 183 (2d Cir. 2000)], the
court held that a member of an organization seeking a permit to march in support
of the legalization of marijuana had standingunder $ 1983 to challengethe portion
of a paradeordinancein New York City that allowed the city police commissioner
to issue special permits on occasionsof extraordinary public interest.
ln Texasv. Lesage[528 U.S. 18, 120 S. Ct. 467, I45 L. Ed. 2d 347 (1999)1,
the Court held that an applicantfor admissionto a stateuniversity doctoral program
sufferedno cognizableinjury meriting relief under $ 1983 when studentswho were
admitted to the program had credentials that were superior to the applicant.

20
LIABTilTY
UNDER42 U.S.C.S 1983 s 1.02tBI

It has been noted that "constitutional claims are personal and cannot be
assertedvicariously." lJohns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.
1997).14 party with a generalizedgrievanceagainst the governmentlacks stand-
ing to sue. [LSO, Ltd. v. Stroh,205 F.3d 1146, Il53 (9th Cir. 2000).] However,if
a personhas a realistic danger of sustaininga direct injury as a result of the law's
operation or enforcement,he or she has standing to challenge an unconstitutional
action that is threatened. fld. at 1154-55.1If the threatenedenforcement effort
implicates the First Amendment, the inquiry tilts dramatically toward a finding of
standing.ln LSO, the court held that a private organization had standing to bring
a $ 1983 action against state alcohol control officials to prevent them from inter-
fering with future "erotic art" exhibits.
In order to have standing, aparty must exhibit an actual or threatenedinjury
that is traceableto the defendant'saction and that will be addressedby a favorable
decision. lDaggett v. Commission on Goventment Ethics & Elections, 205 F.3d
145, 462 (lst Cir. 2000).1In Carroll v. Nakatani [342 F.3d 934,940 (9th Cir.
2003)1,the court held that even if a governmentactor discriminateson the basis of
race, the resulting injury affords a basis for standing to raise an equal protection
challengeonly to those personswho were personally denied equal treatment.The
court noted that when a plaintiff brings an equal protection challenge to a race-
conscious program and seeks forwardlooking relief, the injury, as required to
establishstanding,is not the inability to obtain the benefit but rather the inability
to competeon an equal footing. lld. at94l.l
In Wassonv. Sonoma County Junior Colleges [203 F.3d 659,663 (9th Cir.
1000)1,the court held that a professorcould not maintain a FirstAmendment claim
basedon her contention that college offlcials conducted an unreasonableinvesti-
gation to determinethat the professorwas the alleged author of certain letters.The
professordenied that she had written the letters.With responseto the employee's
claim that shehad standingbecauseshewas defending the First Amendment rights
of an anonymouswriter of letters,the court noted that a litigant can maintain third-
party standingonly when she satisfiesa three-prongtest: (1) the litigant must have
suffered an injury in facq (2) the litigant must have a close relation to the third
party; and (3) there must exist some hindrance to the third party's ability to pro-
tect his or her own interest. [1d.]
ln Claybrook v. Birchwell U99 F.3d 350, 357 (6th Cir. 2000)1,the court held
that a causeof action is entirely personal to the direct victim of the alleged con-
stitutional tort. Therefore, only the victim or, in a case in which the victim has
died, his estate's representativemay prosecute a $ 1983 claim, and no cause of
action may lie under $ 1983 for emotional distress,loss of a loved one, or any other
consequentcollateral injuries allegedly suffered personally by the victim's family
members.The court held that the victim's husband thus lpcked standing under
1983 to claim compensationfor any indirect injuries allegedly causedto him by
"r
reasonof any constitutional tort sufferedby his spouse.lld. at 358 n.9.1The court
did, however,hold that the plaintiffs'complaint adequatelyrequestedcompensation
for the victim's alleged constitutional injuries in their representativecapacitiesas

21
s 1.02tBI 2OO4HANDBOOKOF SECTION
1983LITICA

coadministratorsof his estateand could accordingly pursue the action on the vic-
tim's behalf. [Id. at 357. Seealso American Civil Liberties Union v. Johnson, I
F.3d 1149, Il54-55 (10th Cir. 1999)(Internetprovidersand usershad standing
challengestatestatutethat criminalized the disseminationby computer of material
that was hannful to minors).1
ln Campbellv. Burt [141 F.3d 927 (gth Cir. 1998)], the court held that in a
$ 1983 action involving the taking of emergency custody of children without a
court order, the parent could not bring an action on behalf of minor children who
were seizedwithout retaining a lawyer for them.
In Soto v. Flores [103 F.3d 1056, 1062 (1st Cir. 1997)], it was noted that the
death of a family member will not ordinarily give those still alive a cognizabledue
processclaim on behalf of the decedentsunder $ 1983.In Soto, the court thus held
that a mother did not have a causeof action for police inaction when the mother
reportedthe father's physical abuseand the father subsequentlykilled her children.

I2l Survivorship Laws

Statelaw determinesthe survivorshipof claims under42 U.S.C. $$ 1983and

1988.lRobertsonv. Wegmann,436U.S. 584, 98 S. Ct. 1991,56 L. Ed. 2d 554
(1978).1In Aguillard v. McGowen 1207F.3d 226,228-30 (5th Cir. 2000)1,a case
in which a deputy shot the decedentwhile executing an arrest warrant, the court
applied Texasstatelaw in holding that under the Texaswrongful death statute,sib-
lings have no standingto sue. lSeealso Judge v. City of Lovell, 160 F.3d 67,76
n.15 (lst Cir. 1998) (court questionedthe maintenanceof a $ 1983 action by
family members).1
ln Pietrowskiv. Townof Dibble [134 F.3d 1006, 1008-09(10th Cir. 1998)],
the court held that an action for malicious prosecution against a chief of police
abated upon the death of the officer as provided by the state wrongful death
statute.fSee also Black v. Cook, 444 F. Supp. 61,64 (W.D. Okla. 1977) (since
action for violation of civil rights doesnot survive death,parentscould not recover
for violation of son's civil rights).]
In Cunninghamv. Ray1648F.zd 1185, 1I 86 (8th Cir. 198I )1,it was held that
because$ 1983is silenton the questionof standing,underIowa law, only the legal
representativeof the deceasedinmate's estatecould bring a wrongful death action.
In Byers v. City of Albuquerque,150 F.3d I27l (10th Cir. 1998),the court
stated that white police officers had no standing becausethey could not demon-
strate a causal relationship between their failure to make the sergeants'promo-
tional list and alleged affirmative action policies. In Grffin v. Strong [983 F.2d
1544(10th Cir. 1993)1,the court held that althoughthereis a right of familial asso-
ciation under $ 1983, a police officer did not interfere with a wife's right of famil-
ial associationwith her husbandby telling the wife, falsely, that husbandhad con-
fessedto child abuse.fCf. Wanersonv. Page, 987 F.zd 1, 8 n.6 (lst Cir. 1993)
(grandparentswho resided with girls removed from their home have constitution-
ally protected interest under $ 1983); Bendiburg v. Dempsey, 909 F.zd 463

22
UABTHTYUNDER42 U.S.C.S19S3 s 1.02tcl
(1lth cir. 1990) (father had no substantivedue processclaim for proper govern-
ment intervention into family matters, but material question of fact existed as to
whether ex parte proceeding to obtain order for emergencysurgery on plaintiff's
son was appropriate);Smith v. City of Fontana,8l8 F.2d l4ll,I4l7-20 (9th Cir.
1987) (children have substantivedue processclaims basedon the loss of compan-
ionship of their parents,but not a First Amendment right of association);Hooks v.
Hooks, 77 r F.zd 935, 94r-43 (6th cir. 1985) (complaint alleging wrongful depri-
vation of physical custody of plaintiff's children stated g 1983 claims)-, Trujillo v.
Board of Commissioners,768 F.zd 1186, 1190 (10th Cir. 1985) (an allegationof
intent to interfere with a particular relationship protected by the freedom of inti-
mateassociationsstateda $ 1983claim); Bell v. City of Milwaukee,746F.2d 1205,
1247-48(7th Cir. 1984) (siblingscannotrecoverunder $ 1983).But seeMyers v.
Morris,810 F.2d 1437,1463(8th Cir. 1987)("the parentalliberty interestin keep-
ing the family unit intact is not a clearly establishedright in the context of rea-
:onable suspicion that parents may be abusing children); Harpole v. Arkansas
Department of Human Services, 820 F.Zd 923, 927-28 (Sth Cir. 1987) (grand-
mother cannotrecoverfor death of grandchild);Ortiz v. Burgos,807 F.2d 6 (lst
Cir. 1986) (stepbrother,brothers, and sistersdid not have a protectedliberty inter-
est in the companionship of brother who was beaten to death); Backlund v.
Barnhart, 778 F.zd 1386 (9th Cir. 1985) (foster parentswho were preventedfrom
using corporal punishment on children in their custody could not maintain civil
rights action basedupon First Amendment).1
In Umphletv. Connick l8I4 F.zd 1061, 1066 (5th Cir. 1987)1,the court held
that a plaintiffalleging a constitutional violation hasno standingto complain when
his own conduct fell "clearly within the core of proscribed conduct."

lq Defendants

It is no defensethat a public official or employeewas acting within his or her

:cope of employment with regard to an alleged $ 1983 violation. [Hafer v. Melo,
r02 U.S. 2t,II2 S. Ct. 358, 116 L. Ed.2d 301 (1991)(holdingthat a public offi-
.-ialcan be suedin his or her individual capacityfor damagesunder $ 1983).1The
fact that a public official has acted in her official capacity does not immunize her
trom being sued as an individual under $ 1983. [Med Corp, Inc. v. City of Lima,
196 F.3d 404,417 (6th Cir.2002).1Official-capacitysuits are actionsagainstthe
sovernmententity of which the official is a part. fSanvillev. McCaughtrv,266F.3d
721,733(7th Cir. 2001);seealso $ 1.03.SeealsoWilliamsv.Wisconsin,336 F.3d
576, 582 (7th Cir. 2003) (by suing stateofficials in their official capacities,plain-
tiff could not recover damages,becausethe lawsuit goes againstthe stateitself. an
entity that is not a personunder $ 1983).1
Statesand their agenciesare not "persons" under $ 1983 and therefore can-
not be sued under the statute.lWill v. Michigan State Police,491 U.S. 58, 109
S. Ct. 2304, 105 L. Ed.2d 45 (1989). Seealso Inyo County v. Paiute-Shoshone
Indians,538U.S. 701, 123 S. Ct. 1887, 155 L. Ed.2d 933 (2003) (Court holds

23
s 1.02tcl 2OO4HANDBOOKOF SECTION
1983TITIGATION

that an Indian tribe is not a "person" who can sue under $ 1983 to vindicate
sovereignrights allegedly violated by a county's execution of an otherwise valid
searchwarrant; $ 1983 was designedto secureprivate rights against government
encroachment,not to advancea sovereign'sprerogativeto withhold evidencethat
was relevant,toa criminal investigation);Ariaonansfor Official English v.Arizona,
520 U.S. 43,68-69,117S. Ct. 1055,137L.Ed.2d I70 (1997)(notingthat $ 1983
actionsdo not lie againstthe state);Williams v. Wisconsin,336 F.3d 576, 580 (7th
Cir. 2003) (stating that suits for damagesagainststatesshould be resolvedbecause
the statesare not personsunder $ 1983, not becausethe statesare protectedby the
EleventhAmendment; any constitutional problem that may exist is subordinateto
the statutorydeficiency);Johnsonv. SupremeCourt of lllinois, 165 F.3d 1140,
1141 (7th Cir. 1999);Stidhamv. PeaceOfficersStandards& Training,265 F.3d
1144,1156(10th Cir. 2001) (statingthat neitherthe statenor its officials acting in
their official capacitiesare personsunder $ 1983).1
In Mandersv. Lee [338 F.3d 1304(1lth Cir. 2003)],the EleventhCircuit held
that under Georgia law, the sheriff, when sued in his or her official capacity, is an
arm of the stateand is entitled to EleventhAmendment immunity with regard to a
$ 1983lawsuit.
As discussedin greater detail in Chapter 3, a municipality or county can be
held liable under $ 1983.lMonell v. New York City Department of Social Services,
436 U.S. 658, 98 S. Ct. 2018,56L. Ed. 2d 611 (1978).Seealso Claybrookv.
Birchwell, 199 F.3d 350, 355 n.4 (6th Cir. 2000) (holding that municipalitiesand
countiesare "persons"amenableto liability under $ 1983).1And a schooldistrict,
as a quasi-municipalagency,can be suedunder $ 1983underthe sametheory as a
municipality or county.fSeamonsv. Snow,206F.3d 102I,1029 (10th Cir. 2000).1
Normally, a public entity such as a sheriff's office or police department,
which is not a separatelegal entity, cannot be sued under $ 1983. lWest By &
Through Norris v. Waymire,114 F.3d 646, 646-47 (7th Cir. 1997) (police depart-
ment is not a separatesuableentity from a town under $ 1983).]InWayne v. Jarvis
U97 F.3d 1098,1105(11thCir. 1999)1, the courtheld thata $ 1983lawsuitagainst
a sheriff's office would be dismissed when the county was a party, and under
Georgia law, the sheriff's office was not a legal entity that could be suedapartfrom
the county.fSeealso Hindes v. FDIC, 137F.3d 148, 158 (3d Cir. 1998)(FDIC and
other federal agenciesare not personsand cannot be suedunder $ 1983); Rickett v.
City of Hartford, T4 F.3d 1397,1400 n.l (2d Cir. 1996) (noting that a police
department would not be an appropriate defendant independent of the city);
Mumfordv. Zieba,4F.zd435 (6th Cir. 1993) (statecourt cannot be sued under
$ 1983);Dean v. Barbe\ 951F.2d I2I0,I2I4-15 (1lth Cir. 1989)(countysher-
iff's office is not a legal entity and is not subjectto suit or liability under $ 1983);
Rhodesv. McDannel, 945 F.zd II7, I20 (6th Cir. 1991) (sheriff's office not sub-
ject to suit);Revenev. CharlesCountyCommissioners, SS2F.2d 870, 874 (4thCir.
1989) (sheriff's office could not be suedunder $ 1983);Martinez v. Winner 77 |
F.zd 424, 444 (I0th Cir.), modified in part on rehearing,778 F.2d 553 (10th Cir.
1985),overruledon other groundssub nom. Tyusv. MartineL 475 U.S. 1138, 106

24
LtABtLtTY
UNDER42 U.S.C.S 1983 s 1.02tcl

S. Ct. 1787,90 L. Ed. 2d333 (1986)(DenverPoliceDepartmentwas not subject

to suit; rather,the City of Denver was the proper defendantin a $ 1983 action);
Reesev. City of Chicago Police Department, 602 F. Supp. 441, 443 (N.D. Ill.
1984)(police departmentis not a suableentity); Williamsv. Universityof lllinois,
945 F. Supp.163, 165(N.D. Ill. 1996)(universityis not a suableentity);Hancockv.
WashtenawCounQ Prosecutor'sOffice,548 F. Supp. 1255 (E.D. Mich. 1982)
(prosecutor'soffice is not a legal entity that can be sued under $ 1983); Stale
ex rel. Vorev. Wochrer415F. Supp.274,280(E.D.Mo. 1979),aff'd,620 F.2d 183
(8th Cir. 1980) ("The Departmentof Personnellacks a legal identity apart from
that of the City of St. Louis, and as such is not a suableentity").1
In Janrzenv. Hawkins [188 F.3d 1247, 1259(10th Cir. 1999)],the court held
that a municipality or county cannotbe held liable for actsof an official in his or
her official capacityunlessthat official possesses final policymakingauthority to
establishmunicipal policy with regardto the actsin question.The court held that
a county board of commissionerscould not be held liable for allegedlyunlawful
terminationsby the sheriff,when the sheriff neitherreportedto nor was controlled
by the board of commissionerswith regardto hiring or firing. [1d.]
Statewrongful deathlaws will sometimesdeterminewho can be partiesin a
$ 1983 case.fPietrowski v. Town of Dibble, 134 F.3d 1006, 1008-09 (l0th Cir.
1998)(holding that a $ 1983 action for maliciousprosecutionbrought againstthe
chief of police abatedupon the deathof that officer,becauseof the statewrongful
deathstatute).1
InWudtke v. Davel [128 F.3d 1057, 1060 (7th Cir. 1991)1,the court stated
that it was pointlessto include lists of anonymousdefendantsin federal court,
becausethis does not open the door to relation back under Fed. R. Civ. P. 15. In
Grazoisev.AmericanHome ProductsCorp. [202 F.R.D. 638,643 (D. Nev. 2001)],
the court statedthat "'[g]enerally, "Doe" pleadingis improperin federalcourt . . . .'
There is no provision in the Federalrules permitting the use of fictitious defen-
dants."[Cf. Scott v. Hern, 216 F.3d 897, 9l1- 12 (1OthCir. 2000) (suggestingthat
naming of John Doe defendantscould be proper if defendantsare identified and
servedwithin the time specifiedin Fed. R. Civ. P. a(m)).1
In W.N.J.v. Yocom[257 F.3d ll7l, ll72 (l}th Cir. 2001)],the court noted
that in certain limited circumstances,courts do allow a party to proceedunder a
pseudonym.The case must involve matters of a highly sensitiveand personal
nature.lld.lln Femedeerv. Haun[227 F3d 1244,1246(10th Cir. 2000)], the court
statedthat proceedingunder a pseudonymin federalcourt is "unusualprocedure,"
and that the public has an importantinterestin accessto legal proceedings.While
theremust be exceptionalcircumstances justifying the use of a pseudonym,courts
may "weight the public interestin determiningwhethersomeform of anonymity
is warranted."fld. Seealso Coe v. United States,616F.2d4ll,415 (lOth Cir.
1982) (noting that the use of pseudonyms"may causeproblems to defendants
engagingin discoveryand establishingtheir defenses.");Doe v. Hartz,52 F. Supp.
2d 1021,1048(N.D. Iowa 2001) (courtdeniesuse of pseudonymwhereplaintiff
made seriousallegationsagainstpolice officers).1

25
s 1.03 2OO4HANDBOOKOF SECTION
1983 IITIGATIO\

s 1.03 sEcTtoN 1983 ACTIONSAGAINSTENTITIESOR

PERSONSIN THEIROFFICIALCAPACITIES

Official-capacitysuitsare actionsagainstthe governmententity of which th;

official is a pgrt. [Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001
A judgmentin a $ 1983lawsuitagainstan official "in his official capacity"impose.
liability againstthe entity that he represents.lBrandon v. Holt,469 U.S. 464, l0:
S. Ct.873,83 L. Ed.2d878 (1985).SeealsoShamaeizadehv. Cunigan,338F.,rc
535, 556 (6th Cir. 2003) (noting that a $ 1983 action againsta city official in hrs
or her official capacity is treated as an action against the city entity itself).
"Official-capacity suits . . . 'generally representonly another way of pleading ar.
action againstan entity of which an officer is an agent.'" fHafer v. Melo,502 U.S.
2I,25, 112S. Ct. 358, 116L. Ed.2d 301 (1991);Kentuclqv. Graham,473U.S
159,105S. Ct.3099,87L. Ed.2dII4 (1985);Skeltonv.Camp,234F.3d292,296
(5th Cir. 2000) (noting that stateofficials sued in their official capacitiesare nor
personssubjectto suit under $ 1983; a suit againstcity aldermenin their official
capacitiesis the functional equivalentof a suit againstthe entity they represent;:
Scott v. Clay County,205 F.3d 867, 879 (6th Cir. 2000) (noting that an official
capacitysuit under $ 1983 is the equivalentto a lawsuit directedagainstthe pub-
lic entity that that agentrepresents);Claybrookv. Birchwell, 199F.3d 350, 355 n.-l
(6th Cir. 2000) (sameholding); Cagle v. Gilley, 957 F.zd, 1347, 1350 (6th Cir.
1992) ($ 1983 action against sheriff in his official capacity would be against
county); McCurdy v. Sheriff of Madison County, 128 F.3d 1142, 1145 (7th Cir.
1997) (an official-capacitysuit is a suit againstthe office that the official who is
named as a defendantoccupies);Pietrowski v. Town of Dibble, 134 F.3d 1006.
1009 (10th Cir. 1998) (sameholding); Pompeyv. Broward County,95 F.3d 1543,
1545-46(1lth Cir. 1996) ($ 1983 lawsuit againsta county supportenforcement
division, an administratorof the county,and a director of supportdivision would
be treatedas suits againstthe county).1
The determinationof whether an official acts on behalf of the city or the state
for the purposeof the EleventhAmendment is a matter of statelaw.lSkelton v.
Camp, 234 F.3d 292, 297 (5th Cir. 2000).1
An official-capacitysuit is, in all respectsother than name,to be treatedas a
suit againstthe entity. lGriess v. Colorado,841 F.2d 1042,1045(lOth Cir. 1988).1
A plaintiff seekingto recover damagesin a $ 1983 action can look only to the
entity itself, and not to the official, if the official is suedonly in his official capac-
ity. fWilson v. Civil Tbwn of Clayton, 839 F.2d 375, 380-81 (7th Cir. 1988).See
also Duncan v. Gunter, 15 F.3d 989,99I (10th Cir. 1994) (executivedirector of
state correctional system not a person under $ 1983 when sued in his official
capacity);Ruark v. Solano,928 F.zd,947,950 (l0th Cir. 1991) (director of
ColoradoDepartmentof Correctionswas not a "person" within meaningof $ 1983
in a suit brought againsthim in his official capacity);Croft ,. Harder 927 F.zd
I 163 ( lOth Cir. 1991) (EleventhAmendmentbarredsuit againststatesecurityhos-
pital); Arnold v. McClain, 926 F.zd 963,966 (10th Cir. 1991) (as a stateofficer

26
TIABILITY
UNDER42 U.S.C.S 1983 s 1.03

under Oklahoma law, a district attorney was entitled to Eleventh Amendment

immunity from damagesfor action brought against him in his official capacity);
Eastwoodv.DepartmentofCorrections,846F.2d63I-32(lOthCir. 1988);Collinsv.
City of Detroit, 780 F.2d 583 (6th Cir. 1986)(no recoveryagainstofficers suedin
their official capacity when there was no allegation of a policy or custom for mis-
takenly searchingwrong home pursuant to a searchwarrant).1
The only immunities availableto a defendantsuedin his or her official capac-
iry arethosethat the governmentalentity possesses. fHaferv. Melo, 502 U.S. 21, 112
S. Ct. 358, 362, 116L. Ed. 2d30I (1991).1ln Hafea the SupremeCourt held that a
public official can be sued in his or her individual capacity for damagesunder
1983.fSeealso Ventersv. City of Delphi, 123F.3d956,966 (7th Cir. 1997) (police
"{
chief can be held liable under $ 1983regardlessof whetherhe actedpursuantto city
policy).1ln Hafer, the Court noted,with regardto the determinationwhether a pub-
lic offrcial or employeehas been sued in his or her individual or official capacity,
"[i]t is obviously preferable for the plaintiff to be specific in the first instanceto
avoidany ambiguity."[502 U.S. at24, n.x.In the samefootnote,the Court referred
ro Houstonv. Reich,932F.zd883, 885 (1OthCir. l99I), in which the court held that
the determinationwhetherthe lawsuit is brought againstan official in his individual
or official capacityis to be determinedby reviewing "the courseof the proceedings."
ln Moore v. City of Harriman [272 F3d 769,772-75 (6th Cir. 2001)], the
.-ourtheld that in $ 1983 actions,the "courseof proceedingstest" is to be usedin
determining whether defendantshave received notice that claims were asserted
againstthem in their individual capacities.The factors that determine whether the
suit has been brought against defendantsin their individual capacity include the
natureof the plaintiff's claim, requestfor compensatoryor punitive damages,and
the nature of any defensesraised in responseto the complaint. lld. at 772 n. 1.1In
.lloore, the court held that a plaintiff's excessiveforce complaint provided police
officers with sufficient notice that they were being sued in their individual capac-
ities where the complaint's caption only listed the officers' names, and not their
official titles; the complaint referred to the officers throughout as the individual
defendants;the complaint alleged that the officers were acting for themselvesas
r*'ell as for the city; and the plaintiff sought compensatoryand punitive damages
rom eachdefendantwith regardto the arrest.lld. at773-75.1
Seealso Stevensv. Umsted,131F.3d697,706 (7th Cir. 1997)(a $ 1983com-
plaint that fails to specify the capacity in which the defendantsare being sued is
ordinarily construedto be against them in their official capacity); Pride v. Does,
997 F.2d712,715 (10th Cir. 1993) (when complaint fails to specify the capacity
rr which the government official is sued,courts will look to the substanceof the
pleadingsand the courseof the proceedings;the caption may be informativebut
rs not dispositive).ff Clajon ProductionCorp. v. Petera,70 F.3d 1566, 1571 n.9
,l0th Cir. 1995) (state officials can be sued in their individual capacitiesfor
rnjunctiverelief).1
As discussedin greaterdetail in Chapter7, a Stateor its agenciescannotbe

27
s 1.04tAl 2OO4HANDBOOKOF SECTION1983 TITIGATION

attorneys'fees if the action is brought againstthe stateofficial in his or her official

capacity.lWill v. Michigan StatePolice,491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed.
2d 4s (1989).1

S 1.04 COTOROF LAW OR STATE

ACTION
I

IAI The Requirement That the Act Be Undertaken Under Color of Law

The FourteenthAmendment and $ 1983 protect individuals only againstgov-

ernmental action and leave private conduct to regulation by statutesand common
law. flogiodice v. Trustees,296F.3d22,26 (lst Cir.2002).1In City of Cuyahoga
Falls v. BuckeyeCommunityHope Foundation[538 U.S. 188, 123 S. Ct. 1389.
1395,155L. Ed. 2d349 (2003)1,the Court statedthat the privatemotivesthat trig-
gered a referendum drive did not have any evidence that the drive "can fairly be
attributableto the state."The Court noted that it is firmly embeddedin our consti-
tutional law that the action inhibited by the FourteenthAmendment is only such
action as may be fairly said to be that of the state.[d. Seealso Cherrington ex rel.
Cherrington v. Skeeter 344 F.3d 631, 644 (6th Cir. 2003) ("It is axiomatic, of
course,that $ 1983prohibits actions 'under color of statelaw' which deprivean indi-
vidual of a right securedby the U.S. Constitution or a federal statute.");Faresev.
Scherer,342F.3d 1223,1233n.13(1lth Cir. 2003)(notingthatthe First,Fifth, and
FourteenthAmendments did not apply to private parties unless those parties wer!
engagedin an activity deemedto be stateaction).1
To succeed in a $ 1983 claim, the plaintiff must show the defendants
(1) acted under the color of law; and (2) deprived the decedentof his rights under
the United StatesConstitution. lSutherland v. Michigan Department of Treasury.
344F.3d 603,614 (6th Cir. 2003); Cartwright v. City of Marine City, 336 F.3d487.
491 (6th Cir. 2003).1"To statea claim under 42 U.S.C. $ 1983, a plaintiff mus
present facts sufficient that the defendants, acting under color of state lau'.
deprived him of a specific right or interest securedby the Constitution or laws of
the United States."lBublitzv. Cottey,327F3d 485,488 (7th Cir. 2003).1
To state a claim under $ 1983, a plaintiff must prove that a defendant,while
acting under the color of law, deprivedher of the rights securedby the Constitution
or laws of the United States.fThomasv. Cohen,304F.3d563, 568 (6th Cir. 2002t.
See also Gonzalesv. Spence4336 F.3d 832, 834 (9th Cir. 2003) (lawyer who
defendedcounty in civil rights caseacted under color of statelaw for the purpos!
of $ 1983by violating a juvenile's right to privacy by gaining accessto juvenile's
court casefile and using the file in depositions;this was so even though the lawyer
was not an employeeof the state);Jonesv. Union County,296F.3d 417,423 (6th
Cir. 2002) (to establish a $ 1983 claim, the plaintiff has to show that she wa-<
deprived of a federal right by a person acting under color of state or territorid
law).1Only stateactorscan be held liable under $ 1983.
ln Youngbloodv. Hy-Vee Food Stores,Inc. [266 F.3d 851, 855 (8th Cil.
2001)1,a store was not a state actor and thus was not subjectto liability in an

28
LTAB|LITY
UNDER42 U.S.C.S 1983 s 1.04t41

-\frican American customer's$ 1983 action basedon his arrestfor suspicionof

shoplifting.The storeemployeewho had witnessedthe incidentwas not employed
by the police department,and the police officer summonedto the sceneinvesti-
gated the incident by speaking with the store employee and by examining
merchandise.l
In Tierney v. Vahle [304 F.3d 734, 740 (7th Cir. 2002)1,a teacher who
allowed someoneto use her private telephoneto make a harassingtelephonecall
to parentsin allegedretaliationfor their complaintsabouta high schoolcoachwas
not acting under color of statelaw. The court held that the allegation that there was
a conspiracyby a teacherbasedon an allegeduseof the teacher'sprivatetelephone
to makea harassingcall to parentswho complainedabouta high schoolcoachwas
frivolous and warranted an award of attorney's fees against the plaintiffs. [1d. at
140-42.1Thecourt also held that a juvenile court judge did not act under color of
law when he usedhis judicial stationeryto write a personalletter of supportfor a
high schoolcoachwho had beenaccusedof improprieties.[Id. at14l-43. Seealso
S.J.v. KansasCity Missouri Public SchoolDistrict,294F.3d 1025,1027-28(8th
Cir.2002) (minister who was a middle school volunteerwho sexually abuseda
studentat the minister's home, where the studentwas living, did not act under
1983liability upon the schooldistrict).1For a per-
'-olor of law so as to impose $
sonto be liable under42 U.S.C. $ 1983,the defendantmusthavebeenacting"under
color of state law" at the time of the act in question. IAmerican Manufacturers
Mutual InsuranceCo. v. Sullivan, 526 U.S. 40, 119 S. Ct. 977, I43 L. Ed. 2d 130
r 1999)(self-insuredemployer or private insurer withholding payment for disputed
treatmentpendingan independentreview pursuantto a statestatutewas not acting
undercolor of law for $ 1983purposes);NCAA v. Tarkanian,488 U.S. 179, 109 S.
Ct.454,l02L.Ed.2d 469 (1988)(offlcialsof the NCAA do not act undercolor
of law); Westv. Atkins,487 U.S. 42, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988)
tphysicianunder contractto provide medical serviceto inmatesat a stateprison
hospitalactedundercolor of law); Tbwerv. Glover 467 U.S. 914, 104 S. Ct. 2820,
8l L. Ed. 2d758 (1984) (public defendersnot immune under $ 1983complaint
alleging conspiracy with state officials to deprive client of civil rights);
Polk Countyv. Dodson,454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981)
(public defenderwho is performing a lawyer's traditionalfunctionsas counselto
a defendantin a criminal proceedingis not acting under color of law for purposes
of $ 1983).1
ln Brunette v. Humane Societyof VenturaCounty [294 F.3d 1205, 7208-14
(9th Cir. 2002)1,the court held that the state humane society, which was created
by a special statuteand engagedin a quasi-judicialfunction, and officers, who
were investedwith the authority to investigatereports of animal cruelty, were state
actorsfor the purposeof $ 1983.The court alsoheld that a newspaperreporterwho
photographedand videotapedthe executionof a searchwarrant was not a state
actor under $ 1983 where the reporter did not engagein any law enforcement
activity and limited his activities during the searchwarrant executionto photo-
graphing and videotaping. [Id. at 1214.] In Logiodice v. Trustees 1296 F3d 22,

29
s 1.04tAl 2OO4HANDEOOKOF SECTION19S3TITIGATTON

26-32 (rst cir. 2002)1,the court held that a private school, which was required,
under contract with a public school district that did not operate a public high
school, to accept and educateall of the school district's high school students,was
not performing a traditional "public function" that would causethe school to be a
"state actor" subject to Fourteenth Amendment due process requirements.
[See
also Gritclten v. collier 254 F.3d 807, 813-14 (9th cir. 2001) (holding that a
police officer was not acting under color of law for purposesof g 1983 when he
threateneda defamationlawsuit againsta motorist who complained about the offi-
cer's conduct during a traffic stop);Mentavlos v. Anderson,249 F.3d 301, 314 (4th
Cir. 2001) (male cadets at the Citadel did not act under color of law within the
meaning of $ 1983 when they allegedly engagedin gender-basedharassmentand
discrimination designed to force a female cadet to withdraw from college);
scltnabel u.Abramson,232F.3d83,86-87 (2dcir.2000) (county legal aid societyi
was not a stateactor when there was no governmentalcontrol over or interference
with organization's affairs, despite receipt of substantial government funds);
RhodeIsland Ass'n of Realtorsv. Whitehouse,199 F.3d 26,36-37 (1st Cir. 1999)
(Rhode Island's Access to Public RecordsAct carried threat of state action, and
$ 1983 could be used as a vehicle for challenging statute on First Amendment
grounds); Smith v. Kitchen, 156 F.3d 1025, 1028 (10th Cir. 1998) (bank officers
and employeeswere not acting under color of law when they turned money from
plaintiff's account over to IRS); Randolph v. Cervantes, I30 F.3d 727,730 (5th
cir. 1997) (to statea $ 1983 claim, the plaintiff musr (l) allege violation of rights
securedby Constitution or laws of the United States, and (2) demonstratettrat the
alleged deprivation was committed by a person acting under color of law); Wudtl<cv.
Davel, 128 F.3d 1057,1064 (7th Cir. 1997) (superintendentwho allegedlysexu-
ally harassedand assaultedteacher,and who threatenedto take adverseemploy-
ment action against her, was a state actor and could be sued under $ 1983). Cl
Edmonsonv. LeesvilleConcreteCo., 500 U.S. 614, l1 I S. Ct.2077, Il4L.Ed.2d
660 (1991) (private litigant in civil casemay not use preemptorychallengesto
excludejurors on account of race).]
In Flint ex rel. Flint v. Kentuclq Department of Corrections [270 F.3d 340,
351 (6th cir. 2001)1,the court held that where a private prison had a contractual
relationship with the state,the managerof the print shop at the private prison can
be sued under $ 1983. This is becausethe private prison and the print shop man-
ager performed functions typically attributed to the state: housing and providing
security for individuals who have been convicted of a crime and sentencedto a
term of imprisonment. The state delegatedits responsibilities to the print shop
managerand, therefore, the print shop manager was a state actor for the purpose
of $ 1983.lld. at35l-52.1 It is the $ 1983plaintiff's burdenro pleadand ultimately
establish the existenceof a real nexus between the defendant's conduct and the
defendant's badge of state authority, to demonstrate that the action was taken
undercolor of statelaw. [E.FW. v. St.StephensIndian High School,264F.3dI2gj,
1305(10th cir. 2001).1rhe only proper defendantsin a g 1983action are rhosewho
representthe governmentin some capacity, whether they act in accordancewith

30
 UNDER42 U.S.C.S1983
LIABITITY s 1.04tAl

their authority or misuse it. [Id.] In St.Stephens',Indian tribes had an agreement

with the state under which the state furnished funds to tribal social service agen-
cies to provide social servicesto reservationchildren, and the tribes agreedto use
the state'srules and regulationsas their own. This did not render the actions of the
employeesof the tribal agency actions under color of law within $ 1983. The
employeesacted to remove an Indian child from her mother's care and custody
and placed the child in a psychological facility as a suicide risk. Therefore, the
tribes merely exercisedtheir sovereigntyin deciding what law would govern their
actionsand were not stateactorsfor the purposesof $ 1983. [Id. at 1306-08.]If the
statedelegatesto a private party a function traditionally exclusively reservedto the
state,then the private party is necessarilya state actot. lld. at 1308.1
The issue of whether state action exists is necessarily fact-bound.
lBrennuoodAcademyv. Tennessee SecondarySchoolAthletic Ass'n,531U.S. 288,
298, l2l S. Ct. 924,932, 148 L. Ed. 2d 807 (2001).ln Brenrwood,the Court held
rhat a stateinterscholasticathletic association'sregulatory enforcementaction was
"stateaction" for the purposesof 42 U.S.C. $ 1983and the FourteenthAmendment.
In this casea private high school sued that athletic association,seeking to prevent
enforcementof a rule prohibiting the use of undue influence in the recruitment of
studentathletes.
The basic requirementsof a $ 1983 claim include a showing that (1) a per-
son, (2) acting under color of statelaw, (3) deprived the plaintiff of a federal right.
fBergerv. City of Mayville Heights, 265 F.3d 399, 405 (6th Cir. 2001).1In Berger
the city's action-criminally citing a lot owner for violating an ordinance-was
action under color of statelaw for the purposesof the owner's $ 1983 claim.lld.
at 405.1The city that violated the lot owner's constitutional rights, by criminally
citing him for violation of the ordinance, was a "person" for the purpose of the
f owner's $ 1983claim. [Id ]
d Conduct that constitutes "state action" for purposes of the Fourteenth
o .\mendmentalso satisfies$ 1983's "under color of law" requirement.lLugar v.
Edmondson Oil Co.,457U.S.922,929,102S. Ct.2744,73L. Ed. 2d482 (1982).1
), However, the opposite does not necessarilyhold. In Lugar; the Court noted that
tl stateaction and color of law involve two separatelines of inquiry, stating that, "it
n doesnot follow that all conduct that satisfiesthe under color-of-state-lawrequire-
l- ment would satisfy the FourteenthAmendment requirementof state action." 1457
0
o U.S.at 935 n.18.1
a Conduct under "color of law" for purposesof $ 1983 involves a misuseof
p power, "possessedby virtue of state law and made possible only because the
e n rongdoer is clothed with the authority of statelaw." lWestv. Atkins, 487 U.S. 42,
v J9. 108 S. Ct. 2250, 101 L. Ed. 2d40 (1988). Seealso NCAA v. Tarkanian,488
U.S. 179, 109 S. Ct.454,102L. Ed. 2d 469 (1988)(questionis whetherthe con-
n Juct allegedly causing the deprivation of a federal righ-tcan be fairly attributable
I, Io the state).Seealso Chapmanv. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003)
o noting that private security guard's actions must be fairly attributable to the state
h refore guardand storecan be suedunder $ 1983).1In Chapman,the court held that

31
s 1.04lAl 1983LITICATION
2OO4HANDBOOKOF SECTION

genuineissuesof fact existedas to whetherthe storesecurityguard,who was off-

duty when the arrestwas made,was acting under color of law for the purposeof
the $ 1983action.The court notedthat a $ 1983claimantmust, under the "symbi-
otic" or "nexus" test,demonstratethat thereis a sufflcientlyclose nexusbetween
the governmentand the privateparty's conductso that the conductmay be fairly
attributedto the stateitself. Ud at 834.1
It has also been said that a personactsunder color of statelaw when he or she
acts with authority possessedby virtue of his or her employment with the state.
lAlmand v. DeKalb County,103 F.3d 1510, 1513 (1lth Cir. 1997).1Anothercourt
has said that "under color of law" meansunder "pretenseof law." fBarna v. City of
Perth,42 F.3d 809, 816-18 (3d Cir. 1994).1However,in Jojola v. Chavez[55 F.3d
488, 492 (10th Cir. 1995)1,the court said that "the only proper defendantsin a
Section1983 claim are those 'who represent[the state]in somecapacity,whether
they act in accordancewith their authority or misuseit."' fld. at 492.lIn Jojola, the
court held that a schoolcustodianwas not acting undercolor of law when he forcibly
molesteda studenton school premises.The court noted that there must be a "real
nexus" betweenthe employee'suseor misuseof authority as a public employeeand
the violation allegedly committed by the governmentalentity. lld. at 493.1
A governmentalentity can be held responsiblefor a privatedecisiononly when
it has exercisedcoercive power or has provided such significant encouragement,
either overt or covert, that the choice must in law be deemedto be that of the State.
lBlum v. Yaretslcy, 457 U.S. 991, 1004, 102 S. Ct. 2777,73 L. Ed. 2d 534 (1982)
(nursinghomes'decisionsto dischargeor transfermedicalpatientsto lower levelsof
care did not involve stateaction for purposeof the FourteenthAmendment).1
In Lugar v. EdmondsonOil Co. [457 U.S. 922,929, I02 S. Ct. 2744,73
L. Ed. 2d 482 (1982)1,the Court held that an allegationthat a creditor-a private
citizen-misused or abuseda state's garnishmentand prejudgmentattachment
procedures,depriving him of property without due processof law, failed to statea
cause of action under $ 1983. However, an allegation that the state statutory
schemeitself deprivedthe debtorof property without due processof law stateda
viable causeof action sincethe statutoryschemewas a productof stateactionand
was subjectto constitutionalrestraints.
A private party who participatesin joint activity with the stateor its agents
is consideredto be a state actor for purposesof $ 1983. lYoungbloodv. Hy-Vee
Food Stores,|nc.,266 F.3d 851, 855 (8th Cir. 2001).1In Youngblood,the court
held that a store was not a state actor and not subjectto liability in an African
American customer's$ 1983 action basedon his arrestfor suspicionof shoplifr
ing. The storeemployeewho had witnessedthe incident was not employedby the
police department,and the police officer summonedto the sceneinvestigatedthe
incident by speakingwith the store employee and by examining merchandise.
The court statedthat a storemay be consideredto be actingjointly with police and
subjectto liability under $ 1983 when police detain accusedshoplifterswithout
making an independentinvestigationor pursuantto a customaryplan betweenthe
storeand police department.[1d.]

32
 UAB|UTYUNDER42 U.S.C.
S1983

ln Proffinv.Ridgway1279F.3d503,507 (7th Cfu.2002)1,thecourtalsoheld

that the bystanderwho assistedthe police in reshainingthe arresteewasnot acting
under the color of law becausehe was acting as a private citizen, rather than an
employee.Therewas no conspiracybetweenthe bystanderand the police officer.
Also,theprivatecitizendid not becomea policeofficer"pro tem."This is when,in
an emergency, police deputizeprivatecitizensto help themenforcethe law andthe
deputiesare to be consideredactingunderthe color of law. [Id. at 507-08.]The
courtheld,however,thatbrief ad hoc assistance to a policeofficerdoesnot trans-
form a bystanderinto a stateactorunder$ 1983.[ld. at 508.]The courtnotedthat
a privatecitizendoesnot becomea policemanby complainingto a policeman.[1d.]
ln Pino v.Higgs[75 F.3d1461,1464-66 (10ttrCir. 1996)],thecourtheldthat
althoughthe actionsof offrcerswho took plaintiff to thehospitalfor a psychiatric
evaluationand then to a statehospitalwere actionsby stateactors,actionsof a
socialtherapistandof a physicianin recommending takingtheplaintiffto thehos-
pital were not actionsundercolor of law. ISeealso Gossv. Memorial Hospital
System,789 F.2d 353,356 (5th Cfu.1986)(fact that statelaw grantedprotection
from civil liability for membersof a medicalpeerreviewcommitteedid not con-
stitutestateaction);Cassianov. AmigosDel Valle,Inc., 776 F.2d 1300(5th Cir.
1985)(nonprofitcorporation'sactsdid not constitutestateaction);ParlcsSchoolof
Business v.Symington, 5l F.3d1480,1485-87(10thCir. 1995)(loanguarantor of
junior collegewas not actingundercolor of law); Harris v. Champion,51 F.3d
901, 908-09(10th Cir. 1995)(appellatepublic defenderswere not actingunder
color of law regardingallegationthat they filed briefs for criminal defendantstoo
slowly);Niehausv. KansasBar Ass'n,793 F.2d1159,1163-64(10thCfu.1986)
(discharged bookkeeperat bar associationcould not bring $ 1983actionbecause
relationshipto KansasSupremeCourt wastangentialat best);Weinrauchv. Park
City,75I F.2d 357,360-61(10thCir. 1984)(ownerof towing servicewas not
actingundercolor of statelaw when he pursueda car takenfrom impoundlot
withoutpaymentof towing fee).Cf. Sofferv. City of CostaMesa,798 F.2d361,
362-63(9thCir. 1986)(towingcompanycanbe heldliableunder$ 1983);Fleming
v.Moore,780F.2d438 (4th Cir. 1985)(no stateactionfor failureof statecourtto
considercertainclaimsof a defendantin a libel actionin statecourt).1
s The circuit courtsof appealsaresplit on whethera volunteerfire department
p
actsundercolor of law. fCompareMark v. Boroughof Hatboro,5l F.3d 1137,
I II4l-48 (3d Cir. 1995)with Yeagerv. City of McGregor980 F.2d337 (5ttr Cir.
n 1993)(volunteerfire departmentdid not act undercolor of law).1
The "color of law" requirementappliesto territoriessuchas PuertoRico.
e fBarreto-Rivera v. Medina-Vargas,168F.3d42,45 n.1 (1stCir. 1999).1
e
lBl PrivateActs of Public Officials as Opposedtg Those
d PerformedUnder Color of Law
It
LE If a public official or employeeperformsa privateact,evenwhile on duty,it
is not an actundercolor of law.For example,in Blair v. City of Pomona1223F.3d

33
s r.04lBl 2OO4HANDBOOKOF SECTION1983 TITIGATION

1074, 1080 (9th Cir. 2002)1, the court held that acts of misconduct within the
police department,i.e., insults, uniform trashing, equipment theft, and other acts
directed againsta police officer who had reported police misconduct, were private
acts of revenge by police officers and were not performed under color of law.
Thus, theseactswere not subjectto a lawsuit under $ 1983.
There is a presumption that private conduct does not constitute government
action.fSuttonv.ProvidenceSt.JosephMedical Center,192F3d826,834-43 (9th
Cir. 1999) (no stateaction againstprivate hospital when only governmentrole was
to compel businessto obtain employees' social security numbers).]
ln Barna v. City of Perth l42F3d 809, 816-18(3d Cir. 1994)1,the court held
that off-duty police officers did not act under color of law when they did not iden-
tify themselvesas police officers, did not indicate that they were acting on official
police business,and did not arrest the plaintiff. However, if an officer purports to
act under his or her authority as an officer, it can constitute stateaction, even if the
officer is off duty at the time. lld.lIn Smith v. Winter 1782F.zd508, 512 (5th Cir.
1986)1,the court held that "[a] purely private act is not consideredto be done
under color of state law merely becausethe actor is a public official." ln Smith, a
county superintendentof education was held not to have been acting under color
of law in initiating a recall petition when there was no claim that he usedhis office
to further the recall scheme.lSeealso Malachowskiv. City of Keene,787F.2d704,
710 (lst Cir. 1986) (private attorneywho is sued for actions allegedly taken as
court appointed counsel does not act under color of state law); Zemslqtv. City of
New York, 82I F.zd 148, 151 (2d Cir. 1987) (no stateaction when studentthrew
disappearing ink on teacher; action against student and the manufacturer dis-
missed since no allegation they acted in concert with the city); McCartney v. First
City &ank,970F.zd45,47 (5th Cir. 1992)(thereis no stateactionwhen a state
merely allows private litigants to use its courts); Daniel v. Ferguson, 839 F.2d
1124,1130(5th Cir. 1988)(privatepersonwhoseinformationhelpedthe police to
make an arrestwas not a stateactor; also misuseof a valid statestatutedid not sup-
port a causeof action under $ 1983);Gibsonv. Rosenberg,797 F.2d 224 (5th Cir.
1986) (bar licensedid not convertbusinessdealingsinto stateaction);Branchy v.
Republican Party of lllinois, 898 F.zd Il92 (6th Cir. 1990) (county Republican
party officials'refusal to allow newly electedRepublicanprecinct executivesto
participate in election of their respective ward chairmen was not state action);
Gibsonv. City of Chicago,910F.2d 1510,1517-19(7th Cir. 1990)(policeofficer
who was on medical roll as mentally unfit for duty at time he shot victim was not
acting under color of law); Eling v. Jones,797 F.zd 697 (8th Cir. 1986) (no state
action found when prisoners sued public defender's office for failure to furnish
free copies of transcriptsto inmates); Harris v. Arkansas Book Co., 794 F.2d 358
(8th Cir. 1986) (acts of book depository were not state action when private pub-
lisher, rather than State,paid for the service); Gerritsen v. Madrid Hurtado, 8I9
F.2d 1511, 15I 8 (9th Cir. 1987) (actsof Mexican consulatewere not under color
of state law); Cobb v. Sat4rn l^and Co., 966 F.zd 1334, 1337 (10th Cir. 1992)
(action of county clerk in rherely accepting and recording lien materials did not

34
UAB|LITYUNDER42 U.S.C.S 1983 s 1.04lBl

ronstitutestateaction);Newcombv. Ingle, 944 F.zd 1534 (10th Cir. 1991) (hold-

ng that a mother and grandfather'saction in installing a wiretap on a minor son's
phone was not actionable under $ 1983 since the actions were taken without
*nowledgeor aid of a stateactor); Wattsv. Union PacificRailroad,796F.zd 1240,
il-15 (10th Cir. 1986)(Due ProcessClausedid not preventterminationof railroad
:ngineerbecauserailroad was not governmententity); Lowe v. Aldridge,958 F.2d
',565,1572-73 (1lth Cir. 1992) (noting ttratonly in rare circumstancescan a private
:arry be viewed as a state actor for $ 1983 purposes);Carlin Communication v.
SouthernBell, 802F.zd 1352,1358-61(11th Cir. 1986)(restrictionon message
:ontent by private utility did not constitute state action under the circumstances);
.rlcDougaldv.Jenson,TS6F.2d 1465,1488(1lthCir. 1986)(mother'suseof state
:ourt system was not state action sufficient to allow father to bring $ 1983 action
:n case arising from custody action); Kearson v. Southern Bell Telephone &
TelegraphCo.,763 F.zd 405 (llth Cir. 1985) (no state action when privately
-rrx'red,state-regulatedutility company was involved). Cf. Campo v. New York City
Employees'Retirement System,843F.zd96(2d Cir. 1988)(city retirementsystem
--i a "person" acting under color of state law); Carnes v. Parke4 922 F.zd 1506
1OthCir. 1991)(terminationof a radiology technicianat a public county hospital
:onstitutedstateaction).1
In Connecticut v. Doehr [501 U.S. 1, 111 S. Ct.2105, 115 L. Ed.2d I
1991)1,the Court held that a state attachment statute was unconstitutional
it allowed attachmentpursuantto an ex parte prejudgment lien. [Seealso
-cause
Jordanv. Fox, Rothchild, O'Brien & Frankel,20 F.3d 1250,1267 (3d Cir. 1994)
ludgment creditor who uses state procedure for executing on a confessedjudg-
:f,entactsundercolor of law); Tunstallv. Officeof Judicial Support,820F.zd 631,
5-13-34(3d Cir. 1987)(purchasersof propertyat a municipal tax saleare not state
rtors); Mildfelt v. Circuit Court of JacksonCounty,827F.zd343,345-46 (8th Cir.
- 987) (no stateaction regarding trustee'ssalepursuantto a mortgageforeclosure);
Ionesv. Preuit & Mauldin,822F.2d998, 1005-06(11thCir. 1987)(no stateaction
:or using writ of attachmentissuedpursuantto a mechanic'slien when no allega-
:on of collusion with a state actor to perform an unconstitutional act); Paisey v.
lirale, 807 F.2d 889 (11th Cir. 1987) (no stateaction when statecourt judge was
:nerely the judge assignedto a defamation action); Lugar v. Edmondson Oil Co.,
-r57U.S.922,929,102S. Ct.2744,73L.F,d.2d482(1982) (stateactiondoesnot
ipply to purchasersof property at a municipal tax sale).1
In Price v. Baker 1693F.zd 952 (10th Cir. 1982)1,the court held that a sher-
-tl's wife was not acting under color of law when she struck the plaintiff and
inother person who were in the back seatof a patrol car as she was accompany-
:ng the sheriff on his rounds. The wife assistedthe sheriff in doing clerical work
ind handling phone calls, for which she received no compensation.In Norton v'.
Liddell 1620F.zd I375, 1379 (10th Cir. 1980)1,the court.held that a sheriff was
rot acting under color of law when he provided to the district attorney the
uformation upon which a criminal charge was filed. The court noted that it is
:he district attorney's office that files criminal charges,not the sheriff, and that the

35
s 1.04tcl 2OO4HANDBOOKOF SECTION
1983 TITIGATION

sheriff's position as sheriff "does not make his every action one under color of
law; only when he is using the power granted by the state does it become state
action." 1620F.2dat 1379.Seealso Brown v. Chaffee,6I2F.2d 497,501(10th Cir.
1979)(sheriff's position doesnot itself make him a stateactor); Thylor v. Nichols,
558 F.2d 561,,564(lOth Cir. 1977)(filine a complaintand testifying at trial is not
acting under color of statelaw).1

lcl Sexual Acts by Government Actors

Sexualactsmay or may not be actionableunder $ 1983.In Fontanav. Haskin

[262 F.3d 871,875-77 (9th Cir. 2001)], sexualharassmentof a motorist stateda
claim under $ 1983. The Fourth Amendment's reasonableness standard,rather
than the substantivedue processstandardof the FourteenthAmendment, applied
to the motorist'ssexualharassmentclaim againstthe officer under $ 1983,because
the alleged harassmentoccurred after the officer arrestedthe motorist. [1d. at 881-
82.1 Sexual misconduct by a police officer toward another is generally analyzed
under the FourteenthAmendment; sexualharassmentby a police officer of a crim-
inal suspectduring a continuing seizureis analyzedunder the Fourth Amendment.
[Id. at882.] Likewise, sexual abuseof a studentby a school employee is governed
by the FourteenthAmendment.[Id. at 881 n.6.]
In Roe v. Humke [128 F.3d 1213, I2I5 (8th Cir. 1997)],the court held that a
police officer was not acting under color of statelaw when he took a minor to his
farm to ride an all-tenain vehicle and then sexually assaultedher. The court noted
that for the purposesof a $ 1983 claim, "acting under color of law" meansunder
pretenseof law. Therefore,actsof officers in the ambit of their personalpursuitsare
plainly excluded. [Id. at 1216. Seealso Doe v. Rains County IndependentSchool
District,66 F.3d 1402(5th Cir. 1996)(violationof statestatutethat requiredteacher
to report sexual abuseof children within 48 hours did not constitute state action.
and $ 1983 action could not be brought againstteacherfor having sexualrelations
with underagestudent);D.T. v. IndependentSchoolDistrict No. 16,894F.zd 1176
(10th Cir. 1990) (no state action by public school teacher/coachwho sexually
molested studentswhile on an excursion unconnectedto school activities during
school vacation when teacherwas not employed by school district).1
In Bonenbergerv. Plymouth Townshipfl32 F.3d 20,23-25 (3d Cir. 1997)1.
the court held that a male police sergeantwas acting under color of law when he
sexually harasseda female dispatcher,even though the sergeantwas not the dis-
patcher's official supervisor and he lacked the authority to hire, fire, or make any
employment decision regarding the dispatcher.If a stateentity placesan official in
a position of supervising a lesserranking employee and empowershim or her to
give orders that the subordinatemay not disobey without fear of formal reprisal.
that official wields sufficient authority to satisfy the color of law requirement for
triggering $ 1983 liability. [Id. at 24. Cf. Woodwardv. City of Worland, 977 F.2d
1392, 1399-1400(10th Cir. 1992) (coworker's sexual harassmentwas nor an
action under color of law for the purposesof $ 1983).1

35
I LtABtUTYUNDER42 U.S.C.S1983 s 1.04tDl

of Dependingon the circumstances,a police officer or other public employee

te ii'ho commits a rape may be found to have actedunder color of statelaw. Thus,
lr. ihe court in Almand v. DeKalb County [103 F.3d 1510 (11th Cir. 1997)]held that
ls, an officer did not act under color of statelaw when he raped a woman after gain-
ot ing accessto her houseunder the pretenseof discussingpolice business,left the
apartment,and then forcibly reentered.However, in Dang Vang v. VangXiong X.
Toved1944F3d 476, 479-80(9th Cir. 1991)1,the court found that an employeeof
theWashingtonStateDepartmentof EmploymentSecuritywas acting under state
law when he rapedwomen who were looking for employment.
'cin In Doe v. Hillsboro IndependentSchool District [113 F.3d l4l2 (sthCir.
la 1997)1,the court held that a schooldistrict could not be held liable for a janitor's
ler assaultand rape of a female studentwithout showinga nexusbetweenthe assault
ied and a failure to check the criminal backgroundof the custodianbecausethe cus-
lse todian was not acting under color of law. fSeealso Black v. Indiana Area School
8 1- District,985F.2d707,709-11(3d Cir. 1993)(contractorwho furnishedbusdriver
zed who allegedly molestedgirls on school bus was not a stateactor; the bus driver
lm- also was not a stateactor).]
3nt. In Carroll v. Pfffir [262F.3d 847, 850 (8th Cir. 2001)], the court held that
ned the actionsof a police officer-allegedly engagingin five incidentsof harassment
over the courseof three years-did not result in violation of that person'sFirst
ata Amendment free speechrights, when the conduct did not involve any verbal
his threatsor physicalconduct.The officer was entitledto qualified immunity. But in
rted Johnson v. Martin [195 F.3d 1208 (10th Cir. 1999)], city administratorswho
rder allegedly acquiescedin the sexual harassmentof nonemployeecitizens by the
; are city's billing codesdirectorwere not entitledto qualified immunity.
hool
cher tDl Private Personsor EntitiesActing in Concert with a StateActor
llon,
IONS Cooperative activity between state officials and a private citizen can make
lr76 the private citizen a person acting under color of state law. Dennis v. Sparks 1449
.rally U.S.24, 101S. Ct. 183,66 L. Ed. 2d 185(1980)(privatepartieswho conspirewith
rring a judge to violate constitutionalrights can be liable under $ 1983);Adickesv. S.H.
Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (private
e-|)1, restaurantcan be held liable under $ 1983 if restaurant'srefusal to serveblacks
:n he was motivatedby state-enforced custom of segregation).]In Brunette v. Humane
r dis- Society of VenturaCounty [294 F.3d 1205, 1209-10 (9th Cir. 2002)], the court
) any stated that $ 1983 liability extends to a private party where the private party
ial in engagesin stateaction under color of law where the private actors are willful par-
rer to ticipantsin joint action with the governmentor its agents.The court in Brunette
rrisal, also held that a newspaperreporterwho photographedand videotapedthe execu-
nt for tion of a searchwarrantwas not a stateactor under $ 1983 where the reporterdid
F.2d not engagein any law enforcementactivity and limited his activitiesduring the
ot an searchwarrantexecutionto photographingand videotaping.[Id. at 1214.Seealso
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (privateparty may be held

37
s 1.04lDl 2OO4HANDBOOKOF SECTION
1983TITIGATION

liable under $ 1983 if he or she is a "willful participant"in joint activity with the
Stateor its agents).1
In Marshall v. Columbia Lea Regional Hospital [345 F.3d 1157,1180-81
(lOth Cir. 2003)1,the court noted that privatepersonswho assistin a searchcan-
not be suedunder $ 1983 when they followed the ostensiblylegitimateorder of a
state official for the mere purpose of assisting the state with its investigatory
powers. The court held that medical personnel who administered an allegedly
unlawful warrantlessblood test on the plaintiff, an arresteddriver, did not act unrea-
sonablywith regard to administeringthe test at the behestof police officer, and was
not liable despitethe fact that private personsdo not have qualified immunity.
In Proffiu v. Ridgway 1279F.3d 503, 507 (7th Cir. 2002)1,the court held that
the bystander who assistedthe police in restraining the arresteewas not acting
under the color of law becausehe was acting as a private citizen, rather than an
employee.There was no conspiracybetween the bystanderand the police officer.
Also, the private citizen did not becomea police officer "pro tem." This is when, in
an emergency,police deputizeprivate citizens to help them enforce the law and the
deputies are to be consideredacting under the color of law. [Id. at 507-08.] The
court held, however,that brief ad hoc assistanceto a police officer does not trans-
form a bystanderinto a stateactor under $ 1983. [d. at 508.] The court noted that
a private citizen doesnot becomea policemanby complaining to a policeman. [1d.]
For a privatepersonto be held liable under $ 1983for collusion with a state
actor, a plaintiff must demonstratethat the public and private actors shareda com-
mon, unconstitutionalgoal and that there was a conspiracy or understanding
betweenthe public and private actors to violate the plaintiff's constitutional rights.
lStagmanv. Ryan, 176 F.3d 986, 1003 (7th Cir. 1999).1In Tierneyv. Vahle[304
F.3d 734, 740 (7th Cir. 2002)1,a teacherwho allowed someoneto use her private
telephoneto make a harassingtelephonecall to parentsin alleged retaliation for
their complaints about a high school coach was not acting under color of statelaw.
The court held that the allegation that there was a conspiracy by a teacher based
on an allegeduse of the teacher'sprivate telephoneto make a harassingcall to par-
ents who complained about a high school coach was frivolous and warranted an
award of attorney's fees against the plaintiffs . fld. at 740-42.1ln Degrassi v. City
of Glendora 1207 F.3d 636, 646 (9th Cir. 2000)1, the court held that in a case
involving the exclusionof a city council memberfrom a closedmeetingto deter-
mine whether she would be entitled to legal representation, a $ 1983 claim could
lie against a private person who was a willful participant in joint action with the
stateor its agents,although a bare allegation of such action would not be sufficient
to overcomea motion to dismiss.The court thus held that summaryjudgment had
beenproperly grantedto the defendant-a private law firm-with regardto the alle-
gation that it had conspiredwith the city council to retaliate againstthe plaintiff, a
former city council member.[Id. Seealso Vickeryv. Jones, 100 F.3d 1334,1344-46
(7th Cir. 1996) (holding that Republicanparty memberscould be held liable under
$ 1983for First Amendment violations stemming from hiring decisionsonly if they
were themselvesresponsiblefor hiring decisions; where mere recommendations

38
TIABILITY
UNDER42 U.S.C.S 1983 s 1.04tDl

were made and were carried out by state actor, however,party memberswere not
liable under $ 1983; furthermore,party membershad First Amendmentrights to
expresstheir views in this regard).1
In Wadev. Byles [83 F.3d 902 (7th Cir. 1996)],the city contractedwith a pri-
vatesecuritycompanyto provide securityin a city public housingproject.A guard
rvith the company shot the plaintiff on the housing authority property. The court
held that becausethe security guardswere limited in their authority in that they
u ere to call the housingauthoritysecurityguardsto make an arrest,they were not
state actors even though they were armed. lSee aLsoHiser v. City of Bowling
Green,42F3d 382,383-84 (6th Cir. 1994) (when informer's activitieswere lim-
rted to obtaining evidenceagainstdrug dealers,he was not acting under color of
iaw and could not be held liable as a stateactor when he stole a check from and
:hen killed the person with whom he was sharing an apartment);Gallagher v.
"),leilYoungFreedomConcert,"49 F3d 1442, 1447(10th Cir. 1995)(mereacqui-
:scenceof a stateofficial in actions of a private party is not sufficient for state
lction, private securityguard's searchat concertat stateuniversity was not state
:ction).1
ln Pino v. Higgs [75 F.3d 1461, 1465 (1OthCir. 1996)],the court noted that
-n order to hold a privatepersonliable under $ 1983,the privatepersonmust have
aid from them, or
'cted togetherwith state officials, have obtained significant
rtherwisehaveengagedin conductotherwisechargeableto the state.In Pino, the
:ourt found no state action when a private social therapistadvised police that
:laintiff should be takento a hospital for a psychiatricevaluationand then a pri-
. rte physicianexaminedplaintiff at the hospitalwhen the police broughther there.
The court also held that a private personwho certifiesa personpursuantto state
,:rr for civil commitment is not subject to $ 1983 liability. lSee also Willis v.
--rtiversityHealth Services,993 F.2d 837 (1 1th Cir. 1993) (privatenonprofit hos-
::tal that operatedpursuantto leaseagreementwith public hospital authoritywas
:ot state actor); Spear v. Town of WestHartford, 954 F.zd 63 (10th Cir. 1992)
lolding that there was no stateaction when the only joint conductallegedin the
:rrmplaintwas a meetingbetweenthe attorneysfor the town and for the abortion
:.rnic; the abortionclinic did not act under color of law); Calvert v. Sharp,748
: ld 861 (4th Cir. 1984) (privatephysicianto whom an inmate was referreddid
r-t-rtoct undercolor of statelaw). Cf. Milo v. CushingMunicipal Hospital,86l F.2d
. i9-1 (10th Cir. 1988) (hospital createdby city but operatedby private manage-
:lent agreementactedunder color of law).]
In Manax v. McNamara 1842F.zd 808, 813 (5th Cir. 1988)1,the court held
-:ratallegationsthat a mayor and othersemployedthe power of the mayor's office
.r force the statemedicalboard to withdraw the plaintiff's physician'slicensewas
.:r insufficientallegationof stateactionwhen therewas no allegationthat the state.
:,ther overtly or covertly, encouragedor directed the defendants'actions. The
:.'rurt noted that merely providing information to the state and pressing for state
..'tion were not sufficientto make a privateactor liable under $ 1983.In Ghandi t.
?,tlice Departmentof Detroit 1823F.zd 959,963-64 (6th Cir. 1987)1,the court

39
s 1.04tDl 2OO4HANDBOOKOF SECTION1983 TITIGATION

held that a paid informant is not necessarilya state actor. In that case, the court
upheld the district court's finding that the informant's actions in conducting an
illegal searchwere entirely his own and the city could thus not be held liable. [See
also Leahy v. Board of Trustees,9I2F.2d917,92l-22 (7th Cir. 1990) (union not
a stateactor when it refusedto take teacher'sgrievanceagainstcity college to arbi-
tration); Hammond v. Bales, 843 F.zd 1320, 1323 (10th Cir. 1988) (plaintiff must
demonstrate the existence of a significant nexus or entanglement between an
absolutely immune public official and the private pany in order to establisha suf-
ficient conspiracyto make a $ 1983 action againstthe private citizen); United Steel
Workersof Americav. PhelpsDodge Corp.,833 F.2d 804, 805-07 (9th Cir. 1987)
(private personsact under color of law only when they conspire or willfully par-
ticipate with stateofficials to deprive othersof constitutional rights; here, evidence
of alleged conspiracy between copper mine owner and law enforcement officers
was insufficient);Jacksonv. Pantazes,810 F.2d 426,429-30 (4th Cir. 1987)(joint
activity alone is sufficient; here, bail bondsmanacted under color of law because
of symbiotic relationship between him and the criminal court system); King v.
Massarweh,782F.2d 825,828-29(9th Cir. 1986)(landlordwho calledpolice was
not acting under color of law when he exertedno control over officers' activities);
Mann v. City of Tucson,782 F.zd 790, 793 (9th Cir. 1986) (private personswere
dismissedfrom $ 1983 lawsuit becausethere was no allegation that thesepersons
controlled the investigation or directed that the searchesbe conducted); Greco v.
Guss,775F.zd 16I, 168 (7th Cir. 1985)('A police agreementto 'standin caseof
trouble' does not convert a private repossessioninto state action.").]
ln Lee v. Townof EstesPark 1820F.zd 1112(10th Cir. 1987)1,a privateper-
son made a citizen's arrest and brought the arrestedperson to the police station,
where he was charged with a crime. The court held that no $ 1983 action would
lie, stating that to hold a private individual liable under $ 1983, it must be shown
that the private person was jointly engagedwith state officials in the challenged
action or that the private personobtained significant aid from stateofficials or that
the private person's conduct was in some way chargeableto the state.The court
said that it was "disinclined to apply Lugarto a fact situation where a private party
is simply reporting suspectedcriminal activity to state officials who then take
whatever action they believe the facts warrant." lld. at IlI5. See also Daniel v.
Ferguson,839F.2d 1124, 1130(5th Cir. 1988) (relianceby police on information
given by private person to make arrestdoes not make private person a stateactor);
Carey v. Continental Airlines, 823 F.zd 1402 (10th Cir. 1987) (when airline
employee had the city police officer called, and the officer escortedthe plaintiff
airline pilot to the airport security station, where he was taken to the county jail,
airline employeewas not acting under color of law); Gramenosv. Jewel Cos. Inc.,
797 F2d 432,435-36 (7th Cir. 1986)(store'suseof printed complaintforms when
shoplifters were caught did not establish state action; furthermore, a shopkeeper
operating independentlyof the police [as opposedto situationsin which the police
promise to arrest anyone the shopkeeperdesignatesl is judged under state tort
law); Wagnerv. Metropolitan Nashville Airport Authority, 772 F.2d 227 (6th Cir.

40
LIABTUTY
UNDER42 U.S.C.S 1983 s 1.04tEl
1985) (where Delta Airlines merely presented its security plans to the airport
authority, it did not act under color of law for purposesof $ 1983 action arising
from unreasonablesearchof baggage).1
A plaintiff attempting to prove a conspiracybetweenprivate and stateactors
under $ 1983 must allege facts that suggest(1) an agreementbetween the private
and public defendantsto commit an illegal act and (2) an actual deprivation of
constitutional rights. fCinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).]
A plaintiff can prevail if he or she can show that the private defendantswillfully
participated in a joint action with a state official. IMcCartney v. First City Bank,
970 F.2d 45, 47 (5th Cir. 1992).)A private party does not act under color of state
law when shemerely elicits but doesnot join in an exerciseof official stateauthor-
ity, and police reliance in making an arreston information given by a private party
doesnot make the private party a state actor. lDaniel v. Ferguson, 839 F.zd 1124,
I130 (5thCir. 1988).1

lEl Government Regulationor Receipt of Government Aid

The mere fact that a businessis subject to stateregulation normally does not
convertits actionsinto that of the Statefor purposesof the FourteenthAmendment.
lBlum v. Yaretslqt,457 U.S. 991, 1004, 102 S. Cl 2777,73 L. Ed. 2d 534 (1982)
rnursing homes' decisionsto dischargeor transfer medical patients to lower levels
of care did not involve state action for purposesof the FourteenthAmendment).1
The State normally can be consideredto be responsiblefor a private actor's deci-
sion only when it has exercisedcoercive power or has provided such significant
encouragement,either overt or covert, that the decision must in law be deemedto
be that of the State.[1d. Seealso Schnabelv. Abramson,232F.3d 83, 86-87 (2d
Cir. 2000) (county legal aid society was not a stateactor becausethere was no gov-
ernmentalcontrol over or interferencewith organization's affairs, despite receipt
of substantialgovernmentfunds).1
State action does not arise merely becausea private hospital received gov-
ernmentaid and was subjectto stateregulations.[Tarabishiv. McAlesterRegional
Hospital,827 F.3d648 (1OthCir. 1987);Ezpeletav. Sistersof Mercy Health Corp.,
300 F.2d II9, 122-23(7th Cir. 1986) (privatehospital'ssuspensionof doctor was
not state action even though action was barred by antitrust principles of state
actionimmunity).1ln Loh-SengYov. Cibola GeneralHospital U06F.zd 306 (IOth
Ch. 1983)1,the court held that even though a hospital receivedgovernmentfunds,
rias subject to extensive government regulation, and had a localized geographic
monopoly,it did not act under color of law for purposesof a physician's$ 1983
ection challenging probationary sanctions imposed by the hospital. The court
noted that "the state must be involved not simply with some activity of the insti-
rution alleged to have inflicted injury upon a plaintiff, but with the activity that
caused the injury." 1706 F.zd at 307 (emphasis in original). See also Tunca v.
LurheranGeneralHospital,S44F.zd4ll,4l3-I4 (7thCir. 1988)(stateregulation
not sufficient); Pariser v. Christian Health Care Systems,Inc., 816 F.zd 1248,

41
s 1.04tFl 2OO4HANDBOOKOF SECTION1983 LITICATION

1252 (8th Cir. 1987) (allegationsthat hospital received public funds, enjoyed tax
benefits, was subject to pervasive governmentalregulations, had a virtual mono-
poly in its market area, and performed a public function were insufficient to state
action);Sarin v. SamaritanHealth Centen813 F.2d 755,759 (6th Cir. 1987) (fact
that hospital wasclicensedand regulated by the state and receives funds from
Medicare and Medicaid is insufficient to show state action); Nail v. Community
Action Agency,805 F.2d 1500 (1lth Cir. 1986) (nonprofitcommunity agencydid
not act under color of law though it received significant federal and statefunding
becausenone of its specific personneldecisionswere controlled by stateor federal
regulations);Dezell v. Day IslandYachtC\ub,796F.zd324 (gth Cir. 1986)(yacht
club's use of local fire and police departmentsand public waterway was not state
action);Jarrell v. ChemicalDependencyUnit of Acadiana, 791F.zd 373 (5th Cir.
1986) (no nexus between State's authority and private chemical dependencyunit
even though State may have forced plaintiff's confinement and treatment);
Malachowskiv. City of Keene,787F.2d704,7I0-II (1st Cir. 1985)(private,non-
proflt organization that made available foster homes for state agenciesand pro-
vided recommendationsto state court with regard to child placement was not a
stateactor);Daigle v. OpelousasHealth Care,Inc.,774F.zd 1344 (5th Cir. 1985)
(nursing home's violation of state regulations prohibiting abuse and neglect of
nursing patients was not under color of law though home was regulated by State
and received state funds; decedentdied as result of beatings in home); Carter v.
Norfolk CommunityHospital Ass'n, Inc., 76I F.zd 970 (4th Cir. 1985) (termina-
tion of physician was not done under color of law although hospital received fed-
eral funds and was subject to state and federal regulations).1
In Sfms v. JeffersonDowns Racing Ass'n 1778F.2d 1068, 1076 (5th Cir.
1985)1,the court held that a private racing commission regulatedby the statewas
an ann of the statefor $ 1983 purposes.However,the generalmanagerof a private
racetrack did not act under color of law when, aided by a racetrack steward-a
state official-he delivered a letter to a horse trainer, barring the trainer from all
premisesowned and operatedby the track.fld. at 1077-79.1

tFl Actions Taken Pursuant to a Court Order and Actions

Taken by an Attorney

Use of a court order to interfere with a constitutionallyprotectedinterest can

be conduct under color of state law for purposes of a claim under $ 1983.
lConnecticutv. Doehr,501 U.S. 1, 111 S. Ct. 2105, 115L. Ed. 2d 1 (1991)(state
attachmentstatutewas unconstitutionalwhen it allowed filing of an ex parte pre-
judgment lien).1But action under a guardianshiporder is not necessarilystateaction
under$ 1983.[Myersv. Morris, Sl0 F.2d 1437,1467(8th Cir. 1987)(thecourt held
that the conduct of guardians,therapists,and attorneysin reporting suspectedchild
abuseto law enforcementauthorities did not constitute stateaction); ThomasS. v.
Morrow, 78I F.zd 367, 377-78 (4th Cir. 1986) (guardianwas stateactor when he
worked with state officials to have the incompetent moved); Colombrito v. Kelly,

42
Lr AEr LITY
U NDE R
42 U.S .C.
S1983 s 1.04tct
-6+ F.2d122, 132(2d Cir. 1985)("The mereexistence of a stateguardianship
rrder.thougherroneouslyissued,will not transforma defendant'sconductinto
:3teaction...").]
Actions by attorneys are not ordinarily consideredto be state action.lPolk
'1'turtty,v. Dodson,454U.S. 312, 102S. Ct. 445, 70 L. Ed. 2d 509 (1981)(public
:3t-enderwho is performing a lawyer's traditional functions as counsel to a defen-
.:^intin a criminal proceeding is not acting under color of law for purposes of
: 1983);Lemmonsv. Law Firm of Morris & Morris, 39 F.3d 264,266 (10th Cir.
-99-l) (private law firm did not act under color of state law. See also Pete v.
rlercaW, 8 F.3d 214,217 (5th Cir. 1993) (pro se inmate's allegationsthat attor-
:-evswho representedhim were liable becauseof inaction, negligence,and mal-
:nctice that deprivedplaintiff of liberty and propertywithout due processof law
; ere insufficient to show complicity between attorneys and other state actors
,-leeedly involved in inmate's arrest and prosecution); Whittington v. Milby, 928
F:d 188, 193 (6th Cir. 1991)(privateattorney'srepresentation of family in action
:.. terminateparentalrights was not stateaction);Barnard v. Young,720F.zdIl88
- tlth Cir. 1983) (privateattorneydid not act under color of law when he issued
mental hospital doctor requiring doctor to bring plain-
'ibpoena ducestecum to
--:i1'smedical recordsto a hearing in a child custody case);Shafferv. Cook,634
F :d 1259 (10th Cir. 1980) (when statemerely provided a neutraljudicial forum
:.'rr private attorneys, there was no action under color of state law); Brown v.
Chaffee,6l2F.2d 497,501(10thCir. 1979)(privateattorneywas not actingunder
:t-rlorof law in obtainingcourt order).]

ICl Federal Officials Acting in Concert with State Actors

Although a $ 1983 action cannot ordinarily be brought againsta federal offi-

:ral. it has been held that federal officials who conspire,or act in concert,with
.nte officialscan be suedunder $ 1983.[FlamingoIndustries,Ltd. v. UnitedStates
PctstalService,302F.3d 985,997 (9th Cir. 2002) (becausethe United StatesPostal
Serv'iceacts under federal law, $ 1983 does not allow for a lawsuit based on
.l.-tionstaken under color of federal law).1 It has been held, however, that federal
.rfficials who conspire or act in concert with state officials can be sued under
I 1983.fHindesv. FDIC, 137F.3d 148, 158 (3d Cir. 1998).Cf. Melo v. Hafer 912
F.2d628,638 (3d Cir. 1990),aff'd, 502U.S.21, I 12 S. Ct. 358, I l6 L. Ed. 2d 301
1991)(federalemployeeswho conspirewith stateofficials to violate someone's
,-onstitutionalrights are treatedas acting under color of statelaw).1However,in
ResidentCouncil of Allen Parkway Village v. HUD [980 F.2d 1043, 1052-53(5th
Cir. 1993)1,the court held that federal officials acting under federal,rather than
state,law are not subjectto suit under $ 1983.
In Rosasv. Brock 1826F.zd 1004, 1007(1 lth Cir.'1987)1,the court held that
an action againststateagencyofficials was properly dismissedwhen they were
actingpursuantto federalregulationsin denyingthe plaintiff federaldisasterrelief
runds.In Martin v. Heckler U73 F.zd 1145,1154( I lth Cir. 1985)1,the court noted

43
s 1.04lcl 2OO4HANDBOOKOF SECTION1983 LITIGATION

that althougha stateagencymay act under color of law even when it is required
to obtain federal approval,it does not act under color of statelaw when federal
involvementin the actionsleading to violations of the plaintiff's rights is so per-
vasive that the actions are held to be taken under color of federal and not statelaw.
fSeealso Chatmanv. Hernandez,805 F.2d 453,455 (1st Cir. 1986)("Section 1983
appliesto personsacting 'under color of statelaw' and not to personsacting pur-
suantto federallaw."); Daly-Murphy v. Winston,837F.zd 348,355 (1lth Cir.
1987) (sameholding); Lyons v. Sheets,834 F.zd 493, 495 (5th Cir. 1987) (same
holding); Chapoosev. Hodel, 832F.zd931,934-35 (10th Cir. 1987)(tribal action
not stateaction);Carmanv. Parsons,789F.zd 1532,1534(1 lth Cir. 1986)($ 1983
doesnot apply to trusteesof union funds who were complying with federallaw);
Gibson v. United States,TSl F.zd 1334,1343 (9th Cir. 1986) (federalofficers are
immune under $ 1983unlessthe Stateor its agentssignificantlyparticipatedin the
challengedactivity);Hauptmannv. Wilentz,570F. Supp.351, 387 (D.N.J. 1983).
Cf. Fleming v. Department of Public Safety,837 F.zd 401,404-05 (9th Cir. 1988)
($ 1983 appliesto actionsundertakenpursuantto Commonwealthlaw).1

44
CHnprrn2
VIOLATIONS
SPECIFIC OF
FEDERALLY RIGHTS
PROTECTED
S2.01 Violationsof StateLaw
$ 2.02 The Questionof Whether a Tort Is a ConstitutionalViolation
tAl Defamation
tBl Verbal Threats or Harassment
tcl MaliciousProsecution
tDl RetaliatoryActions and Requestsby the Governmentfor a
Releaseof Liability
tEl AllegationsConcerningDomesticRelations,the Right to
Privacy,and Ttespass
tfl Rights That Are Protectedby the Family Relationship
121 Privacy Rights
t3l T[espass
tFl Negligence by Public Officials and Entities
tcl The "Special Relationship" and "Danger Creation"
Doctrines,Failure to Protect,and Inaction by StateActors
tll The SpecialRelationshipDoctrine
l2l The Danger Creation Doctrine
t3l The Duty of an Officer to PreventAnother Officer from
Using ExcessiveForce
t4l Other SituationsInvolving a Failure to Protect
tsl The Duty to Provide Medical Care to an Injured
Arrestee
IHI Liability for Releaseof Prisonersand Mental Patients
i 2.03 Dismissalof PendentStateClaims
$ 2.04 Unreasonableor ExcessiveForce
tAl The Standard for Unreasonableor ExcessiveForce
tBl The Useor AttemptedUseof DeadlyForce
tcl The Useof Handcuffs
tDl The Useof PepperSpray,RestraintAsphyxia,Chokeholds,
"Hog-Tying," and Canines
tEl NegligentUseof Force
tFl Corporal Punishment in Schools

45
 2OO4HANDBOOKOF SECTION1983 TITIGATION

$ 2.05 Unlawful Arrest or Seizureof Persons

tAl What Constitutesa SeizureUnder the Fourth Amendment
for Purposesof 42 U.S.C.$ 1983
tBl ArrQst and ProbableCause
tcl Arrests Basedon AllegedRacial Motivation
lDl Mental Health Arrests and Seizures
$ 2.06 Illegal Searchesand SeizuresofProperty
tAl Searchesof Property and Persons,and EmployeeSearches
tBl Strip Searches
lcl Searches and InterrogationsofStudents
tDl Searchesof Employees
tEl Seizuresof Property
$ 2.07 Liability for Failure to Releasean Arresteeor Prisoner from
Custodyand for Failure to Provide a Timely Probable
CauseHearing
$ 2.08 PoliceInterrogation, Threats,and Lineups
$ 2.09 Drug and AlcoholTestingand42 U.S.C.$ 1983
$ 2.f0 Causation
$ 2.11 Interferencewith the Right to a Fair Ttial, Spoliationof Evidence,
Denial of Accessto Courts, Cover-Ups,and the Fabrication of
Evidence
g 2.12 Conspiracy
$ 2.13 Equal Protection and 42 U.S.C.$ 1983
$ 2.14 Affirmative Action in Educationand in Law School
$ 2.fS EmploymentDiscrimination and Affirmative Action in
EmploymentUnder 42 U.S.C.$ 1983
tAl Issuesin EmploymentDiscrimination and Affirmative Action
Under 42 U.S.C.$ 1983,IncludingAffirmativeAction
and $ 1983
tll EmploymentDiscrimination
I2l Affirmative Action in Public Employment
tBl SexualHarassmentand,42 U.S.C.$ 1983
tcl ConstructiveDischarge Under 42 U.S.C.S 1983

46
SPECIFIC RIGHTS
VIOTATIONSOF FEDERAIIYPROTECTED s 2.01

S 2.01 VIOLATIONS OF STATELAW

Ordinarily, a violation of state law cannot be a basis for a $ 1983 action

42 U.S.C. $ 1983 provides a remedy "for deprivation of rights securedby
-cause
ire Constitution and laws of the United States." lLugar v. EdmondsonOil Co., 457
L.S. 922, 924, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982) (emphasisadded).1
Section 1983 "does not provide a remedy for abusesthat do not violate federal
'-zu'."
lCollins v. City of Harker Heights,503 U.S. 115, 119, 112 S. Ct. 1061,117
L. Ed. 2d 26I (1992).1And a violation of a state statutedoes not create a liberty
nterest or a property right under the Due ProcessClause. lCartwright v. City of
llarine City,336 F.3d487, 492 (6th Cir. 2003).Seealso Tierneyv. Vahle,304F.3d
-31,741(7th Cir. 2002) (a violation of statelaw is not actionableunder $ 1983);
Gordyv. &urns,294F.3d722,725 (5th Cir. 2002) (noting that federallaw claims
.i.renot, by themselves,actionableunder $ 1983).1The federal governmentis not
.he enforcer of federal law. fPasiewiczv. Lake County Forest Preserve District,
:-0 F.3d 520, 526-27 (7th Cir. 2001) (anest of plaintiff outsideof officers'juris-
iction was not a $ 1983 violation).1
Even a violation of a clear stateregulationdoesnot automaticallycauseloss of
:ualified immunity. lDavis v. Scherer468 U.S. 183, 104 S. Ct. 3012, 82L. Ed. 2d
.-i9 (1984).Seealso Bakerv. McCollan,443U.S. 137,146,99 S. Ct. 2689,61L.
Ed. 2d 433 (1979) ("Section 1983imposesliability for violations of rights protected
:1' the Constitution, not for violations of duties of care arising out of tort law.");
L-nitedStatesv. Dickerson,195F.3d 1183,1187(10th Cir. 1999)("the fact that the
errest,search,or seizuremay haveviolated statelaw is irrelevantas long as the stan-
lards developed under the Federal Constitution were not offended."); Anaya v.
CrossroadsManaged Care Systems,Inc., 195 F.3d 584, 591 n.2 (10th Cir. 1999)
-'a statestatutedoesnot and cannotdeflne the scopeof constitutionalrights.").]
ln Knight v. Jacobson[300 F.3d 1272, I275-76 (IIth Cir. 2002)], the court
:eld that even if the arrest had been made in violation of Florida law in that it was
:or a misdemeanorthat was not committed in the officer's presence,this is not a
'.'iolation of the Fourth Amendment or $ 1983. The court noted that $ 1983 does
lot create a remedy for every wrong committed under the color of state law, but
..nly for thosethat deprive a plaintiff of a federal ngft. lld. at I27 6.1The court also
reld that there was no federal right not to be arrestedin violation of statelaw.
ln Doby v. DeCrescenzo[I7I F.3d 858, 867 n.3 (3d Cir. 1999)],the court, in
=jecting the plaintiff's argumentsthat the defendant could be held liable under
.r 1983becausestatelaw had been violated with regardto a mental health commit-
nent, noted that it would "determine the liability of the county defendantsunder
:ection 1983 accordingto federal lawl' Seealso Campbellv. Burt, 14IF.3d927,
9-10(9th Cir. 1998) ('As a generalrule, a violation of statelaw doesnot lead to lia-
:iliry under $ 1983.");Gabbertv. Conn, 131F.3d793,804 (9th Cir. 1997),rev'd on
other groundssub nom. Conn v. Gabbert,526 U.S. 286,I19 S. Ct. 1292, I43 L.
Ed. 2d 3gg (Iggg) (statelaw cannotform basis of $ 1983 claifr unlessthe violation
of that law also results in a constitutional or federal law violation): Stevensv.

47
s 2.01 2OO4HANDBOOKOF SECTION
1983 TITIGATION

Umsted,131 F.3d 697,706-07 (7th Cir. 1997) (failure to follow Illinois statecode
regardingsexualassaulton disabledstudentwas not a violation of $ 1983); Weir v.
Nix, lI4 F.3d 817, 821n.7 (8th Cir. 1997) (noting that claim of violation of state
law providing an alleged statutory right to attend church serviceson Sunday was
immaterialin $ 1983 action);Boling v. Romer 101 F.3d 1336, 1338n.2 (10th Cir.
1996) (holding that statelaw concernsdo not supporta $ 1983plaintiff's claims for
relief under federal civil rights statutes).1
A warrantless arrest for a misdemeanor assault does not violate the First
Amendment, eventhough the allegedassaultdid not occur in the arrestingofficer's
presence.fWoods v. City of Chicago, 234 F.3d 979, 99I-96 (7th Cir. 2000). See
also Allen v. City of Portland,73 F.3d 232, 236 n.2 (9th Cir. 1995)('A warrantless
misdemeanor arrest which violates state law does not implicate the Fourth
Amendment unless there is no probable cause.").]And the arrest of plaintiff out-
side of officers'jurisdiction was not a $ 1983violation. fPasiewiczv. lnke County
ForestPreserveDistrict, 270 F.3d 520, 526-27 (7th Cir. 2001). Seealso Abbott v.
City of Crocke430 F.3d 994,997-98 (8th Cir. 1994) (anest outsidejurisdiction
doesnot violate Fourth Amendment).1
ln Romerov. Board of CountyCommissioners 160F.3d702 (10th Cir. 1995)1,
the court held that the fact that the officer did not arrestand handcuff an individual
in accordancewith statelaw and police procedurewas not relevant.The officer was
entitled to qualified immunity because"violations of statelaw and police procedure
generallydo not give rise to a $ 1983claim." lSeealso Jojola v. Chavez,55F.3d488,
492 n.4 (10th Cir. 1995) ("Neither the civil rights statutesnor the Fourteenth
Amendment are a license to the federaljudiciary to displace statelaw through the
creationof a body of generalfederaltort law."); Wilsonv. Meeks, 52F.3d 1547, 1554
(10thCir.1995),afterremand,98F.3d1247,1255(10thCir.1996)(courtnotedthat
a "violation of a police departmentregulation is insufficient for liability under sec-
tion 1983"); Romerov. Fay,45 F.3d 1472, 1478 (10th Cir. 1995) (allegationthat
plaintiff wasprosecutedin violation of New Mexico law did not state$ 1983claim);
Nilson v. Layton City, 45 F.3d 369, 372 (I0th Cir. 1995) ("Mere allegationsthat an
offrcial failed to abide by statelaw will not sufflce to statea constitutionalclaim"; a
violation of stateexpungementstatutedid not constitutea $ 1983 violation); Sheik-
Abdi v. McClellan, 37 F3d 1240, 1249 (7th Cir. 1994) (even if police officer's
signing of criminal complaint without any firsthand knowledge of the fact alleged
violated Illinois statelaw, this did not provide a basisfor a $ 1983claim againstthe
officer); Osteenv. Henley, 13 F.3d 221,225 (7th Cir. 1994) (failure to comply with
the university studentjudicial code not actionableunder $ 1983);Doe v. Burnham,
6 F.3d 476 (7th Cir. 1993) (Illinois statutorylaw precluding strip searchof misde-
meanor arresteefor marijuana could not be applied in $ 1983 casein determining
whether strip searchof arresteewas reasonableunder Fourth Amendment;instruct-
ing jury to apply illinois statelaw standardswas error); Bagley v. Rogerson,5 F.3d
325, 328-29 (8th Cir. 1993) (failure to give credit for incarceration under Iowa
statutedid not constitutea violation of $ 1983);Shermanv. Four County Counseling
Cente4987 F.2d397,405 (7th Cir. 1993) (noting that statelaw recognitiondoesnot

48
 SPECIFTC RIGHTS
OF FEDERAIIYPROTECTED
VIOTATTONS s 2.01

establishthe scopeof federal rights; Indiana SupremeCourt ruling basedon state

law did not remove qualified immunity that protecteda private psychiatric facility
actingpursuanttoacounorder); Bartlettv.Fisher972F.2d9ll,9I4 (8thCir. 1992)
(statetroopers'violation of highway patrol regulationsis irrelevantto issueof qual-
ified immunity); Pacelli v. de Vito, 97 1 F.zd 87 I, 875 ( 10th Cir. 1992) ("Violations
of statelaw are not actionableunder $ 1983"); Kulwicki v. Dawson, 969 F.zd 1454,
1468 (3d Cir. 1992) ("violations of statelaw, including defamation,are insufficient
t to statea claim under $ 1983"); andJohnsonv. Busby, 953 F.zd 349,351 (Sth Cir.
S 1991)(not error for trial court to excludejail standardsand investigativereport; "Jail
e standards,although helpful and relevantin some cases,do not representminimum
S constitutionalstandards.").1
h However, the existenceof a state law may be relevant to a determination
uhether a public official is entitled to qualified immunity becausehis or her conduct
v r iolated clearly establishedconstitutionallaw. lWoLfenbargerv. Williams, 826 F.2d
V, 930, 933 (10th Cir. 1987) (Oklahoma statuteswere relevantin establishingthat law
n regardingseizureof pawnbroker property was clearly establishedand that the dis-
rnct attorneywas not entitled to qualified immunity).1Also, in Wudtkev. DavellI2S
It
F.3d 1057, 1062 (7th Cir. 1997)1,the court noted that "once a wrong has properly
il been characteized as a constitutionaltort, the fact that it may also be redressable
IS under statelaw doesnot bar the victim from bringing an action under $ 1983." lld.l
In Vargas-Badillov. Diaz-Tbrres[l 14 F.3d 3, 5-6 (lst Cir. 1997)],the court
3, :reld that there was no clearly establishedFourth Amendment right protecting an
h lrestee from being arrestedfor a misdemeanornot committed in the presenceof an
le .-rfficerevenif a statelaw so required.ln Jonesv. City & Countyof Denver [854 F.2d
t+ i206,1209 (10thCir. 1988)1,the courtrejectedthe plaintiff's contentionthat $ 1983
at :rovided a basis for redressingviolations of statelaw, holding that becausefederal
-lr did not require an arrestwarrant,Colorado statutoryand decisionallaw was not
at :elevant.The court notedthat "only if federallaw requiredarrestwarrantsdoesJones
D; :lave a cognizable claim against these defendantsfor arresting without such war-
ln :rnts." lld. Seealso Phillips v. Calhoun,956 F.zd 949,954 (lOth Cir. 1992)(non-
a ,'ompliancewith local law does not constitute a violation of federal due process
:rehts);Willhauckv.Halpin,953F.zd689,716-17 (1st Cir. 1991)(retusalof district
,S .'ourt to allow evidencethat police pursuit policies violate Massachusettslaw was
3d :rot error becausethey are not relevant in a $ 1983 action); Doe v. Connecticut
ne Departmentof Child & YouthServices,9lI F.zd 868, 869 (2d Cir. 1990)(whether
th :hrld welfare workers complied with state law in emergencyseizureof child was
m :relevant);Bogneyv. Jones,904F.zd272,274 (5th Cir. 1990)("federalcivil rights
te- -:u's do not provide a vehicle to attackstatecourt judgmentsnor to sanctionthe con-
ng :uct of statecourtjudges.. . !'); Johansenv. City of Bartlesville,862F.2d1423,1427
It- -OthCir. 1988)(failureto provideat least20 days'noticeasrequiredby ordinance
3d :rd not violate federal due process);Ramirez v. Ahn, 843 F.zd' 864,867 (5th Cir.
ila -988) (violation of statemedical board's own rules was not a constitutionalviola-
n8 :;cr1v1Daniel v. Ferguson,839 F.2d 1124, 1130(1988) (themisuseby a privateciti-
lot uen of a valid state statute does not constitute a claim under $ 1983); LaBoy v.

49
s 2.01 2OO4HANDBOOKOF SECTION1983 LITICATION

Coughlin, 822F.zd 3 (2d Cir. 1987) (failure to file prison regulationswas a matter
of state law and was not, therefore, the basis for finding a denial of federal due
process);Justice v. Townof Blaclcwell,820F.zd238,243 (7th Cir. 1987) (qualified
immunity would bp lost for violation of statelaw only if violation provided the basis
for federal causeof action); Myers v. Morris, 810 F.2d t437, 1469 (8th Cir. 1987)
(allegedviolation of statelaw prohibiting practicing psychology without a licenql
did not state$ 1983claim);Brown v. TbxasA & M University,804F.2d327,335(5th
Cir. 1986)(failure of stateagencyto comply with its own internal regulationsdid not
stateclaim underDue ProcessClause);Washingtonv. District of Columbia, 802F.2d
1478, 1480 (D.C. Cir. 1986) ("The Supreme Court has repeatedly warned that
Section 1983 must not be used to duplicate state tort law on the federal level.");
Komparev. Stein,801 F.2d 883, 888 (7th Cir. 1986) (violation of municipal ordi-
nancenot a $ 1983 violation by itself;; Talbertv. Kelly, 799 F.zd 62,68 (3d Cir.
1986) ("If the procedurethat a municipality choosesviolates or is contrary to state
law, but meetsfederal standards,we may not set it aside.");Gramenosv. Jewel Cos.
lnc.,797 F.zd432,434-35(7th Cir. 1986)(evenif signingof criminalcomplaintout-
sidethe presenceof the arrestingofficer violated statelaw, no $ 1983causeof action
statedsince "[n]o principle of federal law makesa proper attestedcomplaint neces-
sary to an arrestor criminal prosecution");Bush u Vternn,795 F.zd 1203,1204-05
(5th Cir. 1986) (conectionscommissionersand director could not be held liable for
dutiesimposedon them by statelaw); Deanev. Dunbar,777 F.zd87I,876 (2d Cir.
1985) (instruction was in error when it advisedjury to disregard the good faith
defenseif it found that the defendantprison officials acted contrary to state law);
Franceski v. PlaqueminesParish School Board, 772 F.zd I97,200 (5th Cir. 1985)
(violation of Louisiana statelaw in conductingterminationhearingwas not grounds
for $ 1983action);McKinneyv. George,726F.2d1183,1188-89(7th Cir. 1986)
(wanantlessarreston probablecausedid not violate FourthAmendmentevenif state
law required the police to have prior authorization);Thompsonv. Bass, 616 F.zd
1259, 1266 (5th Cir. 1980) (alleged violation of Alabama statute by discharged
employee"does not rise to the level of a Constitutionaldeprivation" under $ 1983);
Brownv. Dunne,409F.2d34I,343 (7th Cir. 1969)(allegationthat defendant'saftor-
ney, judges, and court clerks misused the Illinois state statutedid not state claim
under federal civil rights acts);Dorsey v. NAACE 408 F.2d 1022 (5th Cir. 1969)
(police officer could not state$ 1983 claim basedon allegationthat his rights under
the Louisiana Constitution were violated).1
In Coon v. Ledbetter[780 F.2d 1158, 1162 (5th Cir. 1986)], the court held
that the fact that Mississippi state law makes a sheriff liable for his deputies' acts
did not mean that this more expansiveprovision of Mississippi law overrode "the
distinctly restrained policy of. Monell v. New York City Department of Social
Services[436 U.S. 658, 98 S. Ct. 2018,56 L. Ed. 2d6ll (1978)]."
In Hirrill v. Meniweather [629 F.zd 490 (8th Cir. 1980)], the court upheld the
dismissalof a g 1983 complaint againsta city pensionboard concerninga pension
dispute.The court statedthat "[a] merely erroneousapplication of a statestatuteto
a particular case does not present a question of federal constitutional dignity."

50
SPECIFIC RIGHTS
PROTECTED
VIOLATIONSOF FEDERATLY s 2.02lAl
-629
F.zd at 496.Seealso Costellov. Townof Fairfield,811F.2d782 (2d Ctu.1987)
.-ollective bargaining dispute not cognizable when plaintiff had not exhausted
:rievanceprocedure);Schindlingv. Smith,777 F.zd 431 (8th Cir. 1985) (inmate's
:ontention that Department of Conections misinterpretedan Arkansas statute in
Jeterminingbasisfor parole eligibility involved error of statelaw and was not basis
:ora$ 1983action).1
Furthermore, a federal court cannot substitute its own interpretation of a
regulation for that of a school board's judgment when the board's con-
--hool
;Euctionwas reasonable.lBoardof Educationv. McCluskey,458U.S. 966, 102 S.
Cr. 3467,73 L. Ed. 2d 1273 (1982).1Additionally, "$ 1983 does not extend the
:ght to relitigate in federal court evidentiary questionsarising in school discipli-
proceedings or the proper construction of school regulations." IWood v.
-r)'
Sfickland,420U.S. 308,326,95 S. Ct. 992,43 L. Ed. 2d214 (1975).1
Conduct that violates statetort law doesnot necessarilyviolate federal law as
rell and thus may not constitute a $ 1983 violation. ln Huxell v. First State Bank
'il2
F.2d 249,252 (10th Cir. 1988)1,for example,the court held that an allegedcon-
..enion of property in violation of the common law did not supporta 1983 claim.
$
tsWisev.Bravol666F.2d1325,1328(10thCir.1981)1, theplaintiffcontendedthat
police had violated his rights by trespassinginto his apartmentand by interfer-
-:g with his child visitation rights. The court held, however,that the plaintiff failed
:Lrstatea causeof action under $ 1983,observingthat "a frespassto property,neg-
:gent or criminal, is a common law tort; it doesnot infringe the federalconstitution."
--l'1.
See also Andree v. Ashland County,818 F.2d 1306, I3I4-I7 (7th Cir. 1987)
:ntry by deputiesinto rock concen without paying admissionfee, even though it
ra1' havebeen a trespass,did not violate plaintiff's constitutionalrights).1
If a court determinesthat a plaintiff has failed to establisha $ 1983 claim, and
ius dismissesthe federal claims, it has discretion to dismiss any pendent state
:larms as well. [28 U.S.C. $ 1367(c); PennhurstState School & Hospital v.
Haldermnn,465 U.S. 89, 104 S. Ct. 90, 917-20,79 L. F,d.2d 67 (1984);Seibertv.
t--niversityof OklahomaHealth SciencesCente4867 F.Zd 591,599 (10th Cir. 1989);
Carey v. Continental Airlines, 823 F.zd 1402, 1404-05 (10th Cir. 1987); Central
\aional Bank v. Rainbolt, 720 F.zd 1183, 1187 (10th Cir. 1983) ("Pendentjuris-
lrction is a doctrine of discretionwhich is not to be routinely exercised.");Christy v.
Carnbron,7l0F.2d 669,672 (10th Cir. 1983)(pendentclaimsbasedupon statelaw
:rust be precededby compliancewith stateimposedproceduralconditions).1

s 2.02 THEQUESTTONOF WHETHERA TORTlS A

VIOLATION
CONSTITUTIONAL

IAI Defamation

A plaintiff's allegationthat is basedsolely on the ctprge of defamationis

:ot sufficientto statea claim under$ 1983,unlessthe act by the public official
rienificantly altered a protectedstatus previously recognizedby state law.

51
s 2.02tAl 2OO4HANDBOOKOF SECTION1983 TITIGATION

lPaulv.Davis,424U.5.693,710-11,96 S. Ct. 1155,47 L.Ed.2d405 (1976).See

also ConnecticutDepartmentof Public Safetyv. Doe,538 U.S. I,I23 S. Ct. 1160,
155 L. Ed.2d 98 (2003) (in holding that Connecticut'sMegan's law did not vio-
late sex offenders' liberty interests,Court notesthat mere injury to reputation,even
if defamatory, dbes not constitute the deprivation of a liberty interest); Muniz v.
City of Harlingen,247 F.3d 607 (5th Cir. 2001) (no $ 1983 action againstcity for
allegedly defamatory statement made when former employee's prospective
employers called city and asked for references;there is no constitutionally pro-
tected interest in future employment); Breaux v. City of Garland, 205 F.3d 150,
158 n.14 (5th Cir. 2000) (noting that when an employeeretainshis position,there
is no claim under $ 1983 even if there has been injury to his or her reputation);
Herb Hallman Chevrolet,Inc. v. Nash-Holmes, 169 F.3d 636, 645 (gth Cir. 1999)
(in a $ 1983action,a claimantmust do more than pleadmere injury to reputation;
the injury to reputation must be joined with an injury to a liberty or property inter-
est).] Stigma alone,without an impact on one's employment,does not constitute
an adverseemploymentaction. fBreaux,205 F.3d at 158 n.14 (5th Cir. 2000).See
also Blackburnv. City of Marshall, 42F.3d925,935 (5th Cir. 1995) (afterPaul, a
$ 1983 plaintiff must show stigma plus an infringement of some other interest).1
When a defamatory statementwith regard to a public employee does not
occur in the context of an employment termination but rather occurs afterward,
there is no violation of the public employee's clearly establishedconstitutional
rights and the public official who made the statementis entitled to qualified immu-
nty.lSiegertv. Gilley,500U.S. 226,II1 S. Ct. 1789,I14 L. Ed. 2d277 (1991).
Seealso Buckleyv. Fitzsimmons,509 U.S. 259, 1I 3 S. Ct. 2606, I25 L. Ed. 2d 209
(1993) (prosecutorwas not entitled to absoluteimmunity, but only qualified immu-
nity, for out-of-court remarks made to pressstating that evidencetied the plaintiff
to a murder in such a way that allegedly defamedhim, resulting in the deprivation
of his right to a fair trial and causingthe jury to deadlockrather than acquit).]
ln Gabbert v. Conn [131 F.3d 793, 800-01 (9th Cir. 1997), rev'd on other
groundssub nom. Connv. Gabbert,526U.S. 286, I19 S. Ct. 1292,143L.Ed.2d
399 (1999)1,the court held that injury to professional reputation is not a liberty
interest protected by the FourteenthAmendment. An interest in reputation alone
does not implicate a liberty or property interest sufficient to invoke due process
protection.[Cinel v. Connick, 15 F.3d 1338,1343 (5th Cir. 1994).]In Kulwicki v.
Dawson 1969F2d 1454, 1467-68 (3d Cir. 1992)1,the court held that a police offi-
cer was entitled to qualified immunity for statementshe made to the press,noting
that "[t]here is no federal constitutional right to reputation." fSee also Nilson v.
Layton City, 45 F.3d 369 (10th Cir. 1995) (holding that an officer's disclosureof
an expunged prior sexual abuse conviction did not violate a teacher's privacy
rights, and a stateexpungementdid not createa legitimate expectationof privacy);
Gundersonv. Schlueter,904F.zd407,409n.4 (8th Cir. 1990)(injury to reputation
alone, without additional proof of a loss of businessor employment opportunities,
doesnot rise to a constitutional violation); Wadev. Goodwin, 843 F.zd 1150, 1152-
53 (8th Cir. 1988)(releaseof nameof personerroneouslylisted as a survivalistdid

52
SITCIFIC
VIOTATIONSOF IEDERALTY RIGHTS
PROTECTED s 2.02tAl

1-lt violate liberty interest or privacy righO; Reyesv. Supervisor of DEA, 834 F.zd
- -9-3.1993 (lst Cir. 1987) (releaseof information by DEA that a prisonerwas a
:ember of FALN was not actionable since branding someonea criminal or ter-
:..nst did not implicate the plaintiff's liberty interest); Zemslq v. City of New York,
:ll F.2d 148, 151 (2d Cir. 1987)($ 1983claim did not lie with regardto defam-
''.-rry remarks when plaintiff suffered no tangible loss); Livas v. Petka, 7Il F.2d
-9s. 801 (7th Cir. 1983) (statementsby the state's attorney to a prospective
:nployer abouta dischargedassistantstate'sattorneywere in the natureof "qual-
.:ed privileged statementsto a prospectiveemployer [and] . . . could not afford a
:.r-risfor the relief sought.. . ."); Kaylor v. Fields, 661F.zd 1177,1181(Sth Cir.
- 931) (allegationthat prosecutormadebaselessaccusationof criminal activity to
-:e mediawithout filing chargeswas not actionableunder $ 1983).1
InHunterv. Namanny[219F.3d 825, 831 (8th Cir. 2000)], the court held that
.: officer conducting a search of a residence for drugs was not required by the
n-'urth Amendment to honor the resident's request to use the toilet. In Emory v.
P;eler 1756F.2d1547(llth Cir. 1985)1,it was held that a juror could not recover
:: a $ 1983action againsta judge for statementsto the news media that criticized
:e juror. fSeealso Bone v. City of Lafayette,763 F.zd295 (7th Cir. 1985) (city
:rgineer's allegation that plaintiff was a liar, which resultedin injury to reputation,
: a-inot actionableunder$ 1983);Carroll v. Parks,755F.zd 1455(11thCir. 1985)
:laim that school published photo in yearbook of athlete with his sexual organ
:rpnsed was not actionableunder $ 1983). Cf. Morfeld v. Kehm, 803 F.zd 1452,
--153-54(8th Cir. 1986)(whenprosecutortold newspaperthat plaintiffhad refused
:.r lake polygraph test with result that plaintiff was unable to obtain employment,
.l ;i 1983claim was viable); Perry v. FBI,759 F.2d l27l (7th Cir. 1985)(defama-
:-.n FBI report which resultsin deprivationof cognizableinterestis actionable);
rlarrero v. City of Hialeah, 625 F.zd 499 (5th Cir. 1980)(when prosecutorpartic-
-:ated in illegal search,injury to reputation as a result of subsequentpressconfer-
:nce was actionablesince"[u]nlike the libel in Paul, the defamationdoesnot stand
ione."); Inrry v. l-awler 605 F.2d 954,958 (7th Cir. 1978) (civil servicereport
-ebelingnongovernmentalemployee an alcoholic baned him from governmental
;orks and would supporta $ 1983action).But seeEconomicDevelopmentCorp.
. Srierheim,782F.zd952,954-55 (11thCir. 1986)(no actionfor injury to good-
: rll and businessreputation when Florida law provided stateremedy,even if puni-
"r'e damageswere not recoverableunder statelaw); Bird v. Summit County,730
F.2d442,444 (6th Cir. 1984)('A stateis not constitutionallyrequiredto expunge
i,n arrestrecord.").]
In Von Stein v. Brescher1904F.zd 572, 580-84(1lth Cir. 1989)1,the court
Jistinguishe d Marrero v. City of Hialeah, 625 F.zd 499 (5th Cir. 1980),noting that
-llarrero was determinedat the notice pleading stage,and that in the presentcase
:he plaintiff suffered only a temporary,partial loss of incofrre,not a right to earn a
^rving.In Johnsonv. Barker 1799F.2d 1396, 1399(9th Cir. 1986)1,the court held
rhat press statementsmade by a sheriff and prosecutor after citations were given
:o membersof the presswere not actionable under Paul v. Davis. The court noted

53
s 2.02tBl 1983TITICATION
2OO4HANDBOOKOF SECTION

that the statement complained of must alter or extinguish a right or status

previouslyrecognizedby statelaw. [d.l

tBl VerbalThreats.
or Harassment

Generally,verbal harassmentis not sufficient to constitutea $ 1983 violation.

fBreaux v. City of Garland, 205 F.3d 150, 161 (5th Cir. 2000) (criticism of and
threat to destroy police union was not actionable); Panon v. Pr4tbylski, 821F.2d
697,700 (7th Cir. 1987)(statepoliceman'sracially derogatoryremarksto arrestee
not actionable);King v. Olmsted County, 117 F.3d 1065, 1076 (8th Cir. 1997)
(threatsto remove other children from home if parentdid not agreeto placementof
one child in foster carewas not $ 1983 violation). Seealso Barney v. Pulsiphea I43
F.3d1299,1310n.11 (10th Cir. 1998)(actsof allegedverbalharassmentof female
prisoners was not sufficient to constitute constitutional violation); Abeyta by and
Through Martinez v. Chama Valley Independent School District, 77 F.3d 1253,
1256 (10th Cir. 1996) (school teacher who read note aloud, called the student a
prostitute, and allowed taunting by student'sclassmateover a period of weeks not
liable under $ 1983); Wilsonv. Meeks,52 F.3d 1547, 1554 (10th Cir. 1995),after
remand,98 F.3d 1247,1255 (10th Cir. 1996) (no claim againstpolice officer for
being a "rude, insolent overbearingcop. . . ."); Hopson v. Fredeicksen, 961F.Zd
1374, 1378-79(8th Cir. 1992) (allegedthreat by officer to arresteewas not action-
ableunder$ 1983);SantiagoDeCastrov. MoralesMedina,943F.zd I29,I3I-32
(lst Cir. 1991)(supervisor'sverbalharassmentof teacherwas not so outrageousas
to shock the conscience);Patton v. Przybylski, 82I F.zd 697,700 (7th Cir. 1987)
(statepoliceman's racially derogatoryremarks to arresteenot actionable).]
But in Holland ex rel. Overdodf v. Harrington [268 F.3d 1179,1194 (10th
Cir. 2001)1,a caseinvolving the execution of arrest and searchwarrants,the court
stated that "[w]hile it seemsunlikely that harsh language alone would render a
searchor seizure 'unreasonable,'verbal abusemay be sufficient to tip the scalesin
a close case."

tC1 MaliciousProsecution
ln Albright v. Oliver [510 U.S. 266, 114 S. Ct. 807,127 L. Ed. 2d lI4
(1994)1,a plurality of the SupremeCourt held that a $ 1983 action alleging mali-
cious prosecution did not lie under the FourteenthAmendment, but rather had to
be brought pursuant to the Fourth Amendment, becausethe latter is the explicit
source of prohibitions against pretrial deprivations of liberty. Albright, the plain-
tiff, was chargedin Illinois statecourt with selling what looked like cocaine to an
undercover informant. The substanceturned out to be baking powder, but the
plaintiff was indicted for selling a "look-alike" substance.An arrest warrant was
issued, and when the plaintiff heard about it, he surrenderedto the defendant
Oliver, a police detective.The casewas subsequentlydismissedon the ground that
the charee did not state an offense under Illinois law.

54