Statutory Civil Rights - Elizabeth J. Norman and Jacob E. Daly

• Publication year: 2002

Statutory Civil Rightsby Elizabeth J. Normanand

Jacob E. Daly"

I. Introduction

Today's legal landscape is dotted with an abundance of civil rights laws, but it has not always been so.¹ In fact, Congress and the courts virtually ignored civil rights until the Civil War catapulted the issue of racial equality to the forefront. During the Reconstruction Era that followed, Congress enacted the Civil Rights Acts of 1866,1870, and 1871 because some states were not enforcing the rights of black citizens guaranteed by the Civil War Amendments. Although Congress did not enact any other major civil rights legislation during the next ninety years, the 1960s saw an explosion of civil rights laws that has continued to this day. Not surprisingly, this legislative explosion has been accompanied by a litigation explosion to prevent and redress deprivations.² To illustrate, only 296 civil rights cases were commenced in federal court during the year ending June 30, 1961,³ whereas 34,027 civil rights cases were commenced in federal court during the year ending September 30, 2000.⁴

Civil rights laws are important because they define the terms under which citizens and public officials interact on a daily basis and because they protect cherished constitutional and statutory rights. Nevertheless, the Supreme Court decides only a few civil rights cases each Term. As a result, the Eleventh Circuit is the principal interpreter of the various laws that protect the civil rights of the people of Georgia, Florida, and Alabama. Because the Eleventh Circuit has the final word on most civil rights issues that affect these people, its decisions are vital to understanding the strength (or weakness) of the protections afforded by the various civil rights laws. Thus, we have endeavored in this Article to discuss the Eleventh Circuit's significant civil rights decisions from the past two years.⁵

II. 42 U.S.C. Sec. 1983

Originally enacted in 1871 to enforce the guarantees of the Fourteenth Amendment,⁶ Sec. 1983 is among the oldest of our nation's civil rights laws. Although Sec. 1983 promised to protect all people from the deprivation of federal constitutional and statutory rights by any person acting "under color of state law, the statute was essentially a dead letter for the first ninety years of its existence because the term "under color of was construed narrowly to refer only to state-sanctioned deprivations.⁷ In 1961, however, the Supreme Court breathed new life into Sec. 1983 when it held, in Monroe v. Pape,⁸ that the statute should be interpreted broadly to provide a remedy to any person who has been deprived of a federally protected right by a public official's unauthorized misuse or abuse of authority.⁹ Additionally, in 1978 the Supreme Court held for the first time, in Monell v. Department of Social Services,¹⁰ that municipalities and other local government units are "persons" that may be sued under Sec. 1983.¹¹ The breadth of those decisions, combined with the fact that the statute is invoked primarily as a vehicle for enforcing our most cherished constitutional rights, has made Sec. 1983 the most important, or at least the most frequently litigated, of the various civil rights laws. Whether Sec. 1983 has been able to fulfill its original promise over the past four decades is beyond the scope of this Article, but several issues that affect its ability to do so are discussed below.

Although Sec. 1983 applies equally to both public officials and government entities, a plaintiff suing a public official in his individual capacity faces a slightly different prima facie case than a plaintiff suing a government entity. Both plaintiffs must prove that (1) the defendant is a "person";¹² (2) the defendant acted "under color of state law;¹³ (3) the defendant deprived the plaintiff of a right protected by the United States Constitution or a federal statute; and (4) the deprivation proximately caused some injury that is redressable by an award of damages or equitable relief.¹⁴ A plaintiff suing a government entity must also prove that (5) the deprivation was caused by an official policy or custom of the entity.¹⁵ Although the prima facie case against individual-capacity defendants is not difficult to prove, the Supreme Court has crafted a generous affirmative defense, the doctrine of qualified immunity, that greatly restricts the ability of plaintiffs to recover damages.¹⁶ Conversely, the prima facie case against government entities is much more formidable, but no immunity defense is available to such defendants.¹⁷

A. Heightened Pleading Standard

When the Federal Rules of Civil Procedure were promulgated in 1938, they replaced a heterogeneous system of code pleading with a homogeneous system of notice pleading.¹⁸ Under Rule 8(a), a complaint must simply include "a short and plain statement of the claim showing that the pleader is entitled to relief."¹⁹ As the Supreme Court held in Conley v. Gibson,²⁰ this requirement is satisfied, and a Rule 12(b)(6) motion to dismiss must be denied, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."²¹ This liberal approach to pleading is designed only to provide fair notice to the defendant of the plaintiff's claim and the factual basis for that claim.²² Instead of requiring a plaintiff to plead the facts upon which the claim is based with specificity, the Rules contemplate that the parties will utilize discovery and other pretrial procedures to uncover the facts and focus the issues.²³

Despite the minimalist nature of notice pleading embodied in Rule 8, the flood of Sec. 1983 actions in the late 1970s and early 1980s caused some circuits, including the Eleventh Circuit, to adopt a heightened pleading standard in an attempt to eliminate frivolous claims and to better protect public officials and government entities from vexatious litigation.²⁴ These are worthy goals to be sure, especially in today's litigious society, but the problem with a heightened pleading standard is that it subverts the structure of the Rules and contravenes the Supreme Court's holding in Conley. Indeed, Sec. 1983 claims are not included in the list of claims in Rule 9 that must be pleaded with specificity; therefore, absent an amendment to the Rules or the enactment of a statute to the contrary, a Sec. 1983 plaintiff should not have to plead more than Rule 8(a) requires.

In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,²⁵ the Supreme Court recognized the inconsistency between a heightened pleading standard in Sec. 1983 cases against government entities and the limited pleading requirements set forth in Rule 8(a) and described in Conley.²⁶ Invoking the maxim expressio unius est exclusio alterius, the Court held that Sec. 1983 actions against government entities cannot be subjected to a heightened pleading standard because Rule 9 does not include such actions in its list of actions that require specificity in pleading.²⁷ The Court acknowledged that there might be some utility to a heightened pleading standard in Sec. 1983 actions against government entities, but concluded that such a specificity requirement must derive from an amendment to the Rules, not from judicial interpretation.²⁸ "In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later."²⁹

The Court limited its holding in Leatherman to Sec. 1983 actions against government entities and expressly declined to consider whether a heightened pleading standard would be appropriate in Sec. 1983 actions against individuals.³⁰ However, although the Court hinted that its qualified immunity jurisprudence might countenance a heightened pleading standard in Sec. 1983 actions against individuals,³¹ its reasoning suggests otherwise. While the Court noted that qualified immunity is not available to government entities,³² which means that the policies underlying qualified immunity do not apply, it based its decision on the conflict between the Fifth Circuit's heightened pleading standard and the paramount system of notice pleading established by Rule 8, as well as the absence in Rule 9 of a specificity requirement for Sec. 1983 actions.³³ The Court's reasoning suggests that it endorses a trans-substantive approach to pleading—that is, the limited pleading requirements set forth in Rule 8 apply equally to all kinds of actions except those specified in Rule 9. Therefore, because the same procedural rules apply in Sec. 1983 actions against individuals, a heightened pleading standard in such actions would seem to be equally inappropriate.

Nevertheless, the Eleventh Circuit continued to require heightened pleading in Sec. 1983 actions against individuals after the Supreme Court's decision in Leatherman?^4, As the court explained,

[W]hile Fed.R.Civ.P. 8 allows a plaintiff considerable leeway in framing its complaint, this circuit, along with others, has tightened the application of Rule 8 with respect to Sec. 1983 cases in an effort to weed out nonmeritorious claims, requiring that a Sec. 1983 plaintiff allege with some specificity the facts which would make out its claim. Some factual detail in the pleadings is necessary to the adjudication of Sec. 1983 claims. This is particularly true in cases involving qualified immunity, where we must determine whether a defendant's actions violated a clearly established right. Accordingly, when reviewing a district court's disposition of a motion to dismiss a Sec. 1983 claim on qualified immunity grounds, we are guided both by the regular 12(b)(6) standard and by the heightened pleading requirement.³⁰

The court's rationale for this appears to be that qualified immunity is a substantive right³⁶ to be free from suit, not just liability, that cannot be subordinated to or affected by a rule of procedure.³⁷

Although the Supreme Court...