VI. Section 1983 Defendants: Who Are Suable Persons?

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

VI. SECTION 1983 DEFENDANTS: WHO ARE SUABLE PERSONS?

Section 1983 authorizes assertion of a claim for relief against a "person" who acted under color of state law. The courts have construed a suable § 1983 "person" to encompass state and local officials sued in their personal capacities, municipal entities, and municipal officials sued in an official capacity, but not states and state entities.

A. State Defendants

In Will v. Michigan Department of State Police,¹¹⁹ the Supreme Court held that a suable "person" under § 1983 does not include a state, a state agency, or a state official sued in her official capacity for damages. However, the Court in Will stated that a state official sued in an official capacity is a § 1983 "person" when sued for prospective relief.¹²⁰ The Court in Will emphasized that while the scope of § 1983 and Eleventh Amendment state sovereign immunity are separate issues, it took the Eleventh Amendment into account in determining whether states, state agencies and state officials are suable persons under § 1983.¹²¹ In Hafer v. Melo,¹²² the Supreme Court held that a state official sued for damages in a personal capacity is a suable § 1983 person, even though the claim for relief arose out of the official's official responsibilities. It should be noted that a personal-capacity claim against a state official is not barred by the Eleventh Amendment because the money damages are not payable out of the state treasury. This is true even if the state decides to indemnify the official because the decision to indemnify results from a voluntary choice of the state rather than the compulsion of a federal court judgment. (See Part XIII(D), infra.)

B. Municipal Defendants

In its landmark decision in Monell v. New...