The Young Lawyer
| Jurisdiction | United States,Federal |
| Citation | Vol. 12 No. 5 Pg. 29 |
| Pages | 29 |
| Publication year | 1999 |
A Primer on 42 U.S.C. § 1983
Daniel J. McDonald.
The Ku Klux Klan Act of 1871, more commonly referred to as "section 1983,"[1] is the operating system or software that allows citizens of the United States "or other person [s] within the jurisdiction thereof'[2] to utilize the hardware of the United States Constitution. The Constitution is generally not self-executing. Thus, in most cases litigants may not bring claims for money damages directly under the Constitution.[3] Instead, litigants seeking redress for violations of federal constitutional rights generally must assert their claims via 42 U.S.C. §1983, which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress... .[4]
Section 1983 litigation is a fairly recent phenomenon. Before the landmark United States Supreme Court decision of Monroe v. Pape[5] in 1961, "§ 1983 was remarkable for its insignificance."[6] "Indeed, one commentator found only 21 suits brought under this provision in the years between 1871 and 1920."[7] However, in Monroe the Court overturned a long-standing assumption that §1983 reached only misconduct either officially authorized or so widely tolerated as to amount to a "custom or usage" of government by holding that §1983 was "meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position."[8] Since Monroe, there has been a literal explosion of §1983 litigation, ranging from suits brought by prisoners to land use cases brought by wealthy corporate developers.
Section 1983 now encompasses any action taken "under color" of state or local law, even when the actor is not, himself, a state or local official.[9] Additionally, deprivations of non-constitutional, Code-Co Publishing Co. Award, recognizing his accomplishments in the areas of legal research and writing, and the Scholarly Writing Award. He has received numerous other honors and distinctions. federal law are also remediable under §1983.[10] However, with each expansion of §1983 liability there has been concomitant contractions, including a host of immunities and procedural hurdles such as heightened pleading requirements. In the wake of these developments, a complicated and often counterintuitive patchwork of precedents has emerged under §1983. This patchwork contains many traps for the unwary § 1983 litigant.
It would be impossible to describe this entire patchwork within the confines of a single Utah Bar Journal article. However, it is possible - and, hopefully, helpful - to sketch a very general framework of §1983.
I. WHAT RIGHTS ARE REMEDIABLE UNDER 42 U.S.C. §1983?
Section 1983, itself, does not create any substantive rights.[11] As the Supreme Court has said, "one cannot go into court and claim a 'violation of § 1983. for § 1983 by itself does not protect anyone against anything."[12] Instead, it is the vehicle used to vindicate rights secured by the federal constitution or federal law.[13]
A. Violations of the federal constitution.
As mentioned, most violations of the federal Constitution must be remedied via a § 1983 action.[14]Thus to properly bring a §1983 claim for violation of a constitutional right, the litigant must properly plead the underlying constitutional violation and plead the requirements of §1983, itself Although " [n]othing in the language of § 1983 or its legislative history limits the statute solely to intentional deprivations of constitutional rights," and although §1983 does not "contain a state-of-mind requirement,"[15]many underlying constitutional provisions do have state-of-mind requirements."[16] Therefore, §1983 plaintiffs must pay special attention to the substantive provisions of the underlying constitutional right they think has been violated. Once the underlying constitutional right has been identified and its violation properly plead, the § 1983 litigant must also plead and prove the following two elements under §1983: first, that the defendant acted under color of state law; and second, that the action complained of deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.[17]
B. Violations of federal law
The rights, privileges, or immunities secured by the laws of the United States include non-constitutional, federal law. However, not every violation of federal law is actionable under §1983. "A plaintiff alleging a violation of a federal statute will be permitted to sue under §1983 unless (1) 'the statute [does] not create enforceable rights, privileges, or immunities within the meaning of §1983,' or (2) 'Congress has foreclosed such enforcement of the statute in the enactment itself."'[18]
In determining the scope of the first exception - whether a federal statute creates enforceable rights, privilege or immunities within the meaning of §1983 - the Supreme Court has developed a three-part test. The Court asks (1) whether the statutory provision at issue '"was intend [ed] to benefit the putative plaintiff.'"[19] If so, then the statute is deemed to create an enforceable right unless (2) the provision "reflects merely a 'congressional preference' for a certain kind of conduct rather than a binding obligation on the governmental unit,"[20] or unless (3) the plaintiff's interest is so vague and amorphous as to be beyond the competence of the judiciary to enforce.[21]
In determining the scope of the second exception - whether Congress has foreclosed enforcement of the statute under § 1983 in the enactment itself - the Supreme Court has admonished, "We do not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for the deprivation of a federally secured right."[22] Further," [t]he burden is on the [defendant] to show by express provision or other specific evidence from the statute itself that Congress intended to foreclose such private enforcement."[23] The Supreme Court has found "private enforcement foreclosed only when the statute itself creates a remedial scheme that is sufficiently comprehensive .., to demonstrate congressional intent to preclude the remedy of suits under§1983."[24] Thus, for example, sexual harassment suits under Title VII to the Civil Rights of 1964 are not actionable via §1983 because it has its own remedial scheme.[25]
Finally, it should be noted that §1983 is not available to redress violations of state law, including violations of a state constitution.
II. WHO CAN AND CANNOT BE SUED UNDER §1983? A. States and "arms" of the state
Generally speaking, unless a state has waived its Eleventh Amendment immunity it is not subject to a suit for damages in federal court under §1983. The Supreme Court has held that Congress did not abrogate the states' Eleventh Amendment immunity when enacting §1983.[26] However, Eleventh Amendment immunity extends only to the states themselves and to those governmental entities that are "arms of the state" and not to political subdivisions.[27]The Supreme Court applies several factors to determine whether a governmental entity is an " arm" o f the state. These factors, set forth in Mt. Healthy Board of Education v. Doyle,[28] include: (1) the characterization of the entity under state law; (2) the guidance and control exercised by the state over the entity; (3) the degree of state funding received by the entity; and (4) the ability of the entity to fund itself or generate revenue through assessments or taxes.[29] Thus, for example, the Tenth Circuit held in Ambus v. Granite Board of Education that Utah school districts are not arms of the state because the Utah Constitution and the Utah Governmental Immunity Act characterize school districts as political subdivisions of the state, Utah school districts exercise a significant degree of autonomy, and Utah school districts obtain funding at least in part through locally administered property taxes.[30]
States may also not be sued under §1983 in state court, not because they are entitled to Eleventh Amendment immunity, but because, according to the Supreme Court, a state "is not a person within the meaning of § 1983."[31] State entities that would be "arms of the state" under the Eleventh Amendment are also not "person [s]" within the meaning of §1983-[32]Thus, the scope of the Eleventh Amendment and the scope of § 1983 are analytically distinct but practically inseparable. In short, states or arms of the state may not be sued for damages in federal court or state court under §1983.
B. State officials in their official capacity
According to the Supreme Court, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office."[33]"As such, it is no different from a suit against the State itself."[34]Thus, state officials may not be sued for damages in their official capacity in federal court because of the Eleventh Amendment and may not be sued in their official capacity in state court because such officials are not "persons" within the meaning of §1983-[35]
It should be noted that to the extent a plaintiff is seeking injunctive relief he may sue the individual defendants in their official capacities or the state as a state under §1983.[36]
C. Political subdivisions of the state
In Monell v. Department of Social Services of New York City,[37] the Supreme Court held that "Congress did intend., . local government units to be included among those persons to whom §1983 applies."[38]...
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