The following is an excerpt from a presentation at the Lawyers Club of Cincinnati given by Paul M. Laufman of Laufman & Napolitano. We will be sharing other excerpts from this presentation over the next few weeks.
Part 1: Nuts and Bolts of Section 1983 Litigation
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
Section 1983 applies to people or entities acting under “color of state law,” commonly called “state actors.” For purposes of section 1983, who is a state actor?
- Most government employees are state actors. Prison guards, police officers, firefighters, and elected officials are all state actors.
- Political subdivisions of a state—cities, townships, villages, etc.—are state actors.
- Private citizens or entities can, in some circumstances, be state actors who are liable under section 1983. For a private citizen to be deemed a state actor, one of four tests must be satisfied:
i. The public function test: Entity exercises powers traditionally reserved to the State (or political subdivision of the State)
ii. The state compulsion test: A State has “exercised such coercive power or has provided such significant encouragement . . . that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
iii. The nexus test: A symbiotic relationship or “nexus” exists between the entity and the State such that the action of the entity is really that of the State.
iv. The entwinement test: Either the entity is “entwined” in governmental policies or the State is “entwined” in the management of the entity.
- Examples of private citizens who are state actors
i. Charter schools. Riester v. Riverside Community School, 257 F. Supp. 2d 968 (S.D. Ohio 2002).
ii. Private prison guards. Richardson v. McKnight, 521 U.S. 399 (1997).
iii. An off-duty sheriff’s deputy working as a security guard in a department store. Chapman v. Higbee Co., 319 F.3d 825 (6th Cir. 2003) (en banc).
- Federal employees are not amenable to suit under 42 U.S.C. 1983. Instead, a plaintiff must file a “Bivens action” against a federal employee. Most of our discussion of 1983 claims also applies to Bivens actions.
What constitutes a violation of 42 U.S.C. 1983?
- Section 1983 does not itself confer any rights. Instead, the statute provides a remedy to recover for the violation of rights.
- Examples of basic 1983 claims:
i. First Amendment (typically free speech violations)
ii. Fourth Amendment (excessive force claims against police officers; unreasonable searches or seizures)
iii. Eighth Amendment (prisoner civil rights claims)
- Fourteenth Amendment claims
i. The Fourteenth Amendment has been interpreted to have two components: procedural due process and substantive due process.
ii. Procedural due process: Plaintiff must show deprivation of property under color of state law.
1. Key is showing the property interest, which is often created as a function of state law. Brotherton v. City of Cleveland, 923 F.3d 477 (6th Cir. 1991) (Ohio citizens have property interest in corneas of deceased family members).
2. Not all statutes create a cognizable property interest. City of Castle Rock v. Gonzales, 545 U.S. 748 (2005) (no property interest in enforcement of temporary protection orders).
iii. Substantive due process: A substantive due process claim is one that alleges a deprivation of some liberty interest, rather than a property interest. Examples of interests protected by substantive due process:
1. Interests so rooted in the traditions and conscience of the national as to be fundamental:
a. Reasonable care and safety while in government custody. Youngberg v. Romeo, 457 U.S. 307 (1982).
b. Bodily integrity. Rochin v. California, 342 U.S. 165 (1952).
2. Freedom from government actions that “shock the conscience.”
3. Substantive due process claims can invoke the “state-created danger” doctrine. Plaintiff can pursue damages if he is injured as a result of an action taken by a state actor that places him in danger. Examples:
a. Police interrogate an emotionally-disturbed, allegedly innocent young man and force him to write an apology to the victim. They release him. He goes home and commits suicide. Sloane v. Kanawha County Sheriff Dept., 342 F. Supp. 2d 545 (S.D. W. Va. 2004).
b. Employee calls police and anonymously reports co-employee’s theft. He subsequently comes forward, and is ensured by police of anonymity. Police release recording of call to the thief, who kills the employee. Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998).
4. Claims that fall outside of state-created danger:
a. Police fail to serve a temporary protection order, and protectee of the order is shot. Jones v. Union County, 296 F.3d 417 (6th Cir. 2002).
Check out our blog next week for a continuation of our discussion about Civil Rights Litigation under 42 U.S.C. 1983