VII. Section 1983 Remedial Issues

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

VII. SECTION 1983 REMEDIAL ISSUES

A. Pleading

Plaintiffs in § 1983 cases need only plead that some person, acting under color of state law, deprived them of federal rights secured by § 1983. It is not necessary to allege that defendants acted in bad faith or somehow lost their qualified immunities, and defendants must raise such "confession and avoidance" defenses affirmatively.¹⁷⁰ Despite this liberal approach to pleading, most federal courts, until recently, had applied a strict or heightened pleading requirement to § 1983 complaints.¹⁷¹ This had been most common on immunity issues, but some federal courts had extended the heightened pleading requirement to non-immunity issues such as municipal liability.¹⁷² In 1993, however, the Supreme Court in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit¹⁷³ rejected the application of strict pleading requirements to § 1983 claims against municipalities. In so ruling, the Court relied on the normal pleading requirements of the federal rules and the failure of the drafters to extend the special pleading requirements of Federal Rule of Civil Procedure 9(b) to § 1983 or other civil rights complaints.¹⁷⁴

Leatherman did not resolve the application of strict pleading requirements to § 1983 cases involving qualified immunity issues. In Crawford-El v. Britton,¹⁷⁵ however, the Court effectively rejected the use of strict or heightened pleading requirements on qualified immunity issues, while making clear that on a case-by-case basis federal courts could require § 1983 plaintiffs to "'put forward specific, nonconclusory factual allegations' that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment."¹⁷⁶ Subsequently, in Swierkiewicz v. Sorema,¹⁷⁷ the Court rejected the applicability of a requirement for particularity in pleading in federal employment discrimination cases, and federal courts have concluded that the Supreme Court has finally clearly rejected the use of strict or heightened pleading requirements in § 1983 cases.¹⁷⁸

These cases support, at a minimum, the proposition that courts may not single out § 1983 or other civil rights complaints for less favorable treatment. Before Leatherman, however, a number of state courts had relied on federal cases as authority for the use of strict pleading requirements.¹⁷⁹Leatherman and the Court's subsequent pleading decisions undercut federal support for an across-the-board strict pleading requirement applicable to § 1983 and other civil rights cases, but they do not answer whether states may independently, as a matter of state law, impose strict pleading requirements on § 1983 or other federal civil rights claims.

Under the nondiscrimination principle, a state may not impose heightened pleading requirements on federal claims, if it does not impose the same standards on state claims,¹⁸⁰ but a different question arises when a state evenhandedly applies strict state pleading rules to state and federal claims. The Supreme Court has not directly addressed this issue in § 1983 litigation, but in Brown v. Western Railway of Alabama,¹⁸¹ a FELA case, the Court stated that "[s]trict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal laws."¹⁸² The Brown Court further observed that it would not "fail to protect federally created rights from dismissal because of over-exacting local requirements for meticulous pleadings. . . ."¹⁸³ Some state courts have relied on these principles to reject the application of state pleading requirements to § 1983 complaints,¹⁸⁴ and a number of state courts have relied on Leatherman and Crawford-El to reject the application of strict pleading requirements to § 1983 cases.¹⁸⁵

The Court's decisions in Leatherman, Crawford-El, and Swierkiewicz prevented the singling out of complaints in § 1983 and other civil rights cases for stricter scrutiny, but in Bell Atlantic v. Twombly¹⁸⁶ and Ashcroft v. Iqbal,¹⁸⁷ the Court changed the pleading rules for all civil cases filed in federal court. Under the new pleading standards, the Court retired the "no conceivable set of facts" standard of Conley v. Gibson¹⁸⁸ and adopted a plausibility pleading standard, the result of which has made it more difficult for plaintiffs, including § 1983 plaintiffs, to clear the initial pleading hurdle and survive motions to dismiss. These new federal standards, however, do not apply in state courts, and a number of state courts have expressly rejected them in favor of traditional notice pleading standards.¹⁸⁹

A recurring pleading issue in state court § 1983 litigation is whether plaintiffs must specifically plead that they are relying upon § 1983.¹⁹⁰ Federal courts have not imposed such a pleading requirement,¹⁹¹ and state courts have generally taken the same position.¹⁹² Although courts generally look to the course of the litigation to determine whether a suit included a § 1983 claim, a number of state courts that have not required the pleading of § 1983 have nonetheless observed that the "better practice is to specifically plead" reliance on § 1983.¹⁹³

Unlike the refusal of federal and state courts to require specific pleading of § 1983, some federal courts have strictly required plaintiffs to plead whether § 1983 claims are being brought against defendants in their individual or official capacities. The use of such a pleading standard, however, even if occasionally appropriate in federal courts of limited jurisdiction, seems inappropriate in state courts of general jurisdiction.

B. Official Immunities

Section 1983, by its terms, is silent about the availability of any immunities for officials who violate federal law. Nonetheless, the Supreme Court has established an elaborate system of absolute and qualified immunities to protect government officials and employees from personal liability under § 1983. It has done this by reading § 1983 against the background of the common law that existed in 1871. When an immunity was well established at that time, the Court has been unwilling to assume that Congress would have overridden the immunity without expressly providing so.¹⁹⁴

The immunities applicable to federal court § 1983 claims also apply in state courts, and the Supreme Court, in Martinez v. California,¹⁹⁵ held that federal, not state, law governed their availability:

Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. . . . The immunity claim raises a question of federal law.¹⁹⁶

State courts have widely accepted the Martinez principle. For example, in Cooperman v. University Surgical Associates,¹⁹⁷ the Ohio Supreme Court noted that "[i]mmunity, for purposes of a federal claim, is clearly a question of federal law."¹⁹⁸ The Supreme Court, however, has provided only limited guidance on the extent to which, or even whether, states may develop their own policies for the administration of federal immunities.¹⁹⁹ Thus, it is unclear whether state courts entertaining § 1983 claims are required to follow the lead of federal courts and limit discovery, make expanded use of summary judgment, and restrict the role of the jury.

1. Absolute Immunities

The Supreme Court maintains a presumption against absolute immunity and has been "quite sparing" in recognizing it.²⁰⁰ Most governmental officials, including governors and executive branch officials, have only a qualified immunity from § 1983 damage suits,²⁰¹ but some § 1983 defendants may claim an absolute immunity from suit based on the governmental functions they are performing. For example, state legislators have absolute immunity from § 1983 damage and injunctive suits for their legislative acts,²⁰² as do regional²⁰³ and local legislators.²⁰⁴ Likewise, state court judges and prosecutors have absolute immunity from § 1983 damage claims involving their judicial or prosecutorial functions.

Absolute immunity, however, is limited. Judges only have absolute immunity from § 1983 damage suits for judicial acts taken within their jurisdiction,²⁰⁵ and they may be liable for their administrative decisions.²⁰⁶They may also be sued under § 1983 for injunctive relief (on claims for which they have an absolute immunity from damage suits), and they are subject to liability for attorneys' fees.²⁰⁷

Similarly, prosecutors have absolute quasi-judicial immunity when performing prosecutorial functions intimately associated with the judicial phase of the criminal process,²⁰⁸ but they are not entitled to absolute immunity for either investigative or other non-prosecutorial activities.²⁰⁹

2. Qualified Immunities

The Supreme Court has held that public officials who are not entitled to absolute immunity may still be immune from § 1983 damage suits when their performance of discretionary functions violates federal law.²¹⁰ In 1975, in Wood v. Strickland,²¹¹ the Supreme Court initially defined the § 1983 qualified immunity in both objective and subjective terms. Seven years later, however, in Harlow v. Fitzgerald,²¹² a Bivens action,²¹³ the Court eliminated the subjective leg and defined qualified immunity in objective terms by asking whether the defendants violated clearly established federal law.²¹⁴

In Anderson v. Creighton,²¹⁵ the Court held that the determination of whether the law was clearly established required a particularized definition of the issue of federal law that must be clearly established:

[T]he right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would...