II. Initiating a Case: an Overview for Plaintiff's Counsel

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

II. INITIATING A CASE: AN OVERVIEW FOR PLAINTIFF'S COUNSEL

Before plaintiff's counsel files any federal case, Federal Rule of Civil Procedure 11 requires at least a general "inquiry reasonable under the circumstances." For a § 1983 case, an intelligent case-acceptance decision requires much more: an understanding of the client's injuries and goals, a thorough analysis of the legal and factual basis of potential claims, and an evaluation of likely case outcomes. Assuming the lawyer goes forward with the case, this pre-filing investigation and consideration of the various procedural issues will form the basis for the complaint. Although this section focuses on evaluation and development of a case from the perspective of plaintiff's counsel, defense counsel should pay attention to many of these same considerations after a complaint is filed, to spot potential problems with a claim.

A. Pre-filing Factual and Legal Investigation

Evaluation of any potential case begins with the client. Counsel should endeavor to learn as much as possible about what happened by speaking to the client, as well as reviewing any available records, and talking to other individuals (with permission of the prospective client) who have additional information. The extent of pre-acceptance and pre-filing investigation necessarily will depend, of course, on the complexity of the case, but counsel should at a minimum develop enough information to understand what evidence exists, what evidence can likely be developed in discovery, and what legal theories support recovery. This inquiry is even more important following the Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly¹ and 2009 decision in Ashcroft v. Iqbal² which require sufficient factual pleading in a complaint, with respect to each element of each cause of action alleged, to make the allegations "plausible."³ Although the focus of this chapter is on procedure, the following substantive topics are a few of the things that counsel should keep in mind while investigating a potential claim, as well as while beginning to draft a complaint.

1. Initial Considerations: Statute of Limitations and Notice of Claim

One of the first things counsel should do when presented with a prospective client, or after accepting a case, is to be sure that a claim can still be filed within the statute of limitations. For § 1983 claims, federal courts borrow the state's statute of limitations governing general personal injury claims.⁴In other words, the statute of limitations for a § 1983 claim varies from state to state, but within each state, there is only one uniform statute of limitations for a § 1983 claim, no matter what type of § 1983 claim is being pursued. The question of accrual of a § 1983 claim, however, is a question of federal law.⁵ If the statute of limitations appears to have passed, counsel should explore whether any tolling rules, which are borrowed from state law, may apply.⁶ State-law claims are often governed by more specific state statutes of limitations, which may be shorter.

With respect to state-law claims that can be brought alongside federal claims, state and local governments typically impose an additional hurdle— a procedural notice requirement—which frequently has an extremely short deadline. These notice-of-claim requirements do not apply to § 1983 claims, whether filed in state or federal court.⁷ But failure to comply with local notice requirements may prevent the client from pleading pendant state-law claims against a local government. Such claims are desirable, as a plaintiff can typically assert respondeat superior claims against a municipality under state law, although such a theory is not available under § 1983. It is thus crucial to examine both state and local notice-of-claim requirements and act quickly to advise a prospective client and even help the prospective client file a notice of claim to preserve his ability to bring state-law claims in the future.

2. Initial Considerations: Goals, Costs, and Risks of Litigation

Individual Liability: Part of counsel's conversation with the prospective client will also include the client's goals: money damages, declaratory or injunctive relief, or some combination of the above. If the client's objective is money damages, there are several specific considerations that come into play in a § 1983 case (many of which are discussed in further detail elsewhere in this volume). First, counsel will need to consider how immunity doctrines⁸ may affect the client's likelihood of being able to collect money damages from an individual defendant. Individual defendants are most often protected by qualified immunity, which immunizes an individual from liability if the unconstitutionality of his misconduct was not "clearly established."⁹

In addition to qualified immunity, some individual defendants, including prosecutors and judges, may be protected from suit by an even stronger doctrine—absolute immunity—which forecloses suit against an individual even if the misconduct was clearly unconstitutional.¹⁰

Even if you believe that immunity is not likely to be a strong or successful defense, based on the facts of the case, its availability as a defense substantially increases the likelihood of an interlocutory appeal.¹¹ Moreover, defendants can appeal immunity decisions at least twice—both at the motion to dismiss and summary judgment stages—which can significantly prolong the length of litigation and delay any potential resolution.¹²

Municipal Liability: Immunity—whether qualified or absolute—does not, however, apply to municipal defendants. Although states themselves may not be sued for monetary damages under § 1983, discussed more in Section II(C)(ii), it is possible to bring a claim directly against a municipality, such as a county or city, for both monetary damages and injunctive and declaratory relief.¹³ A municipality may be liable in a variety of ways (typically called Monell claims, after the leading case): for instance, when a final policymaker is responsible for the unconstitutional conduct, the municipality's custom or practice causes the violation, or the municipality's failure to train or supervise is responsible for the violation.¹⁴ Section 1983 liability may not be imposed on a municipality on a respondeat superior basis, however, simply because an individual defendant is liable.

Assessing the possibility of bringing a Monell claim will require an examination of relevant state law to determine which officials had relevant policymaking authority for the claim at issue and investigation to what degree those individuals were involved in the case. If a policymaker is not involved, a Monell claim will require extensive factual development as to the policies, procedures, customs, and practices of the governmental unit in question and the ways in which they brought about the deprivation of the client's constitutional or statutory rights. It is worthwhile to check at the courthouse, and in available...