16-c-2 Whom to Name as Defendants

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

16-C-2. Whom to Name as Defendants

Figuring out exactly whom to name as a defendant in your Section 1983 lawsuit can be confusing. As noted in Part B(1)(a) above, you can only sue a "person" who violated your rights while acting "under color" of state law. For the purposes of Section 1983, the definition of a "person" includes individual people (like prison wardens, guards, and other employees), as well as cities, counties, or municipalities that adopts policies, rules, or regulations that violate your rights. 176 However, the definition of a "person" does not include state governments and their agencies (including your state's department of corrections).177

(a) Individual Defendants

If any of your defendants are individuals, you must decide in what "capacity" you will sue them. You can sue them in their "individual capacities," in their "official capacities," or both. When you sue someone in his individual capacity, you are suing him personally. When you sue someone in his official capacity, you are suing his office (for example, suing the county prison warden's office rather than suing the individual who happens to be the county prison warden). Whether you sue a particular individual in his individual capacity, his official capacity, or both, will affect the type of damages you can receive. It will also affect the defenses that the individual can raise.178

In general, if you want to get an injunction (described in Part C(1)(b) of this Chapter), you should sue defendants in their official capacities. If you are seeking money damages, you should usually sue defendants in their individual capacities. If you are seeking money damages against a high-ranking local official, like a sheriff or a warden, then you should probably sue him in both his official and individual capacities. If you are confused about which capacity to use for a particular defendant, you always have the option of suing that defendant in both capacities. However, you should be aware that suing defendants in both capacities may lead the defendants to file motions asking that part of your lawsuit be dismissed. These motions can delay your lawsuit.

Sometimes you may not know the name of the person who violated your rights. In such a case, you must refer to the defendant as "John (or Jane) Doe." 179 This tells the court that you do not know the person's name. You must, however, locate and identify all John and Jane Does at some point or the claims against them will be dismissed. 180 Once the lawsuit is started, you should be able to learn the defendants' identities through discovery. For more information on discovery, see Chapter 8 of the JLM, "Obtaining Information to Prepare Your Case: The Process of Discovery."

(b) Supervisor Liability

A supervisory official who causes or participates in a violation of your rights may be liable in some cases. However, the concept of "respondeat superior" does not apply to Section 1983 lawsuits. 181 "Respondeat superior" is the idea that supervisors are legally responsible for their subordinates' (lower-ranked staff members') actions, whether or not the supervisor knew about those actions.182 Instead, in Section 1983 claims, however, supervisory officials can only be charged with responsibility for lower officials' acts if they were "personally involved" in them. A supervisor is considered to be "personally involved" in a constitutional violation if:

(1) The supervisor, "after learning of [a] violation [of your rights] . . . failed to remedy the wrong"; or

(2) The supervisor "created a policy or custom under which" your constitutional rights were violated, "or allowed such a policy or custom to continue"; or

(3) The supervisor was "grossly negligent" in that he did not adequately supervise the subordinates who violated your rights. 183

To hold a supervisor liable in any of the above situations, you must show that the supervisor acted with "deliberate indifference." 184 The definition of deliberate indifference can vary from circuit to circuit. It may also depend on the type of supervisor liability you are claiming.185 Be sure to look at cases in your circuit to see how your circuit defines deliberate indifference for the purposes of supervisor liability. Most courts say that a supervisor acts with deliberate indifference when he knows or should know that there is a substantial risk of harms that violate your constitutional rights and he fails to prevent or remedy those harms.186

To win in a supervisor liability claim, you must be able to show two things:

(1) that your constitutional rights were actually violated, and

(2) that there was a clear connection between the violation of your rights and the supervisor's actions or failure to act. 187 What follows is a discussion of the three types of situations in which you may be able to hold a supervisor liable.

(i) Failure to Act to Remedy a Wrong

Prior to 2009, a supervisor could be liable under Section 1983 if he became aware of a violation of your rights but did not take steps to remedy the violation.188 Under this old rule, a supervisor would typically be found liable for violating your constitutional rights if he acted in at least one of five ways:

(1) Participated directly in the alleged constitutional violation; or

(2) Failed to remedy the violation after being informed of the violation through a report or appeal; or

(3) Created or allowed the continuation of a policy or custom under which unconstitutional practices occurred; or

(4) Acted with gross negligence in supervising subordinates who committed the wrongful acts; or

(5) Exhibited deliberate indifference to the rights of prisoners by failing to act on information indicating that unconstitutional acts were occurring). 189 However, in 2009, the Supreme Court made it more difficult to assert supervisor liability. Under the current law, a supervisor will only be held liable under Section 1983 when you can show that he actually participated in the constitutional violation. 190

(ii) Creating or Allowing an Unconstitutional Policy or Custom

A supervisor may be personally involved in a violation of your rights if he develops an unconstitutional policy or if he allows an unconstitutional policy to continue.191 Supervisors can be liable for an unconstitutional policy even if it is unwritten as in the case of an informal policy or custom.192 Supervisors generally cannot be held liable for a constitutional policy that a subordinate simply fails to follow.193 However, the supervisor can be held liable, however, if subordinates fail to follow the policy because the supervisor did not do a good enough job of hiring or training them. This exception is discussed in Part C(2)(b)(iii), below.

(iii) Deficient Management of Subordinates

A supervisor may be liable if a subordinate violates your constitutional rights as a result of that supervisor's mismanagement of the subordinates. A subordinate is an individual who works under the command of the supervisor. This type of liability can occur when the supervisor:

(1) Knew of a subordinate's past misconduct and failed to take action to fix it; or, 194

(2) Failed to set up policies that help guide subordinates' conduct to prevent violations of constitutional rights; or, 195

(3) Failed to inform and train staff on policies designed to avoid violations of constitutional rights; 196 or,

(4) Failed to properly supervise staff to make sure that they followed policies.197

If your complaint alleges that the violation of your rights was the result of a failure to train staff (situation (3), described above), you must show "a complete failure to train, or training that is so reckless or grossly negligent that future misconduct is almost inevitable." 198

(c) Municipal or Local Government Liability

A municipality or local government-such as a county, city, or town-can be held liable under Section 1983. You must show that the violation of your constitutional rights was either (1) caused by a policy or custom of the municipality or (2) caused by a municipal policymaker's failure to take certain actions, like properly training employees. In the first situation, the municipality has "direct liability" for violating your rights. In the second situation, the municipality has "indirect liability" for violating your rights. The requirements for each type of liability are discussed in detail in Parts C(2)(c)(i) and (ii) of the Chapter below.

There are several benefits to naming a municipality as a defendant. First, while you cannot recover punitive damages from a municipality, 199 you can sue it for both compensatory damages and injunctive relief.200 Second, municipalities, unlike individuals, cannot claim qualified immunity. 201 Third, if you are successful in your suit, the municipality will likely make broad changes in handling situations similar to yours in the future.

(i) "Direct" Municipal Liability

In order to hold a municipality directly liable for violating your rights you must meet the regular requirements for a Section 1983 claim and also show that:

(1) A policy or custom of the municipality caused your rights to be violated; 202and

(2) The policy was created by someone who is a final policymaker for the municipality.203

A policy or custom is...

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