A. Intro a. 1983: i.

Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity ii. 1983 came after this initial wave of federal civil rights legislation, and was designed to open up the federal cts by giving litigants a direct federal cause of action against those who, acting under color of law, deprived them of their constitutional rights iii. Unlike the statutes that preceded it, it gave private litigats a federal court remedy of first resort, rather than a remedy that would be available only in default of or after state process b. Before there can be an action for 1983, there needs to be UNDER COLOR OF LAW--; any const violation---14tham, you nee STATE AXN; 31 supp c. State of Mind and 1983; i. 1983 has no independent state of mind requirement of its own, apart from the underlying constitutional (or statutory) duty that is being enforced 1. FOR EX: proving a violation of the equal protection clause of 14tham requires a showing of discriminatory intent 2. 4tam: reasonableness 3. 8tham: deliberate indifference B. Under Color of State Law a. TYPICALLY, liability will attach if: i. The defendant has acted under color of state law; and ii. The defendants action deprived the plt of some right, privilege, or immunity secured by the Constiution b. Monroe v. Pape p 32-42 i. Facts: 13 chicago police officers broke into petitioners home and among other things, made them stand naked in living room while they ransacked every roomofficers had no search warrant or arrest warrant ii. Issues: 1. Does 1983 provide a private right of action under federal law? YES 2. Does 1983 exclude acts of an official or police officer who can show no authority under SL? NO 3. Can police officers as individuals be liable under 1983? YES 4. Municipalities? NO iii. Holding: Congress in enacting 1983 meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an officials abuse of his position

1. Monroes 1983 remedy is supplemental to any remedy he might have under SL 2. Police officers axn was axn under color of law within meaning of 1983, even if what they did also violated SL iv. Monroe means that state offiers act under color of law whenever they are carrying out tasks they ordinarily perform, as well as when their actions are rendered possible or efficiently aided by the state authority lodged in them v. The SC in Monroe concluded that a party injured by the unconstitutional action of police officers could sue the officers for damages in federal ct under 1983 c. Note p. 48-52 d. Badge Effect e. Private Actors as Public Actors i. One traditional way in which private actors can engage in state action is by acting in concert w/state or local officials 1. SC has held that a private physican who treated inmates in a state prison engaged in state action and action under color of law when he acted w/deliberate indifference to the medical needs of inmates ii. Symbiotic relationships iii. Public functions: has to be a function that the government traditionally and exclusively presumes 1. Best example is private prisons iv. Conspiracy: if private individuals join w/officials, private indivds act under color of state lawand no immunity for them

C. RightsSecured by the Constitution

a. Search, Seizure and Excessive Force4tham
i. 4tham STANDARD: 1. Objective inquiry: whether the officers action was reasonable when judged by an objective standard in light of the facts and circumstances surrounding the case and confronted by the officer 2. Risk to the officer 3. What a reasonable officer would do 4. You dont have to use most reasonable force, just force that is reasonable ii. Safford Unified Sch. Fist v. Redding, handout 1. Facts: Redding, an eighth grader, was strip-searched by school officials on the basis of a tip by another student that Ms. Redding might have ibuprofen on her person in violation of school policy 2. Issue: a. Does the 4tham prohibit school officials from strip searching students suspected of possessing drugs in violation of school policy? Sometimes/fact dependent

b. Are school officials individually liable for damages in a lawsuit filed under 42 U.S.C Section 1983? No 3. Holding: The Supreme Court held that Savanna's Fourth

Amendment rights were violated when school officials searched her underwear for non-prescription painkillers. the Court reiterated that, based on a reasonable suspicion, search measures used by school officials to root out contraband must be "reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction." Here, school officials did not have sufficient suspicion to warrant extending the search of Savanna to her underwear. The Court also held that the implicated school administrators were not personally liable because "clearly established law [did] not show that the search violated the Fourth Amendment." It reasoned that lower court decisions were disparate enough to have warranted doubt about the scope of a student's Fourth Amendment right.
a. **BSagree w/dissenthow could you not know?? b. YesviolationBUThave qualified immunity iii. Graham v. Connor, handout 1. Facts: Petitioner Graham, a diabetic, asked his friend, Berry, to drive him to a convenience store to purchase orange juice to counteract the onset of an insulin reaction. Upon entering the store and seeing the number of people ahead of him, Graham hurried out and asked Berry to drive him to a friend's house instead. Respondent Connor, a city police officer, became suspicious after seeing Graham hastily enter and leave the store, followed Berry's car, and made an investigative stop, ordering the pair to wait while he found out what had happened in the store. 2. Holding: The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. 3. Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. 4. "All claims that law enforcement officials have used excessive force deadly or not - in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen are properly analyzed under the Fourth Amendment's 'objective reasonableness' standard, rather than under a substantive due process standard.

a. courts must identify the specific constitutional right allegedly infringed by the challenged application of force and then judge the claim by reference to the

specific constitutional standard which governs that right. b. (b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right 'to be secure in their... against unreasonable seizures,' and must be judged by reference to the Fourth Amendment's 'reasonableness' standard. c. (c) The Fourth Amendment 'reasonableness' inquiry is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation... The test applied by the courts below is incompatible with a proper Fourth Amendment analysis." iv. Cook v. City of Bella Villa, handout 1. Sexual assault case by officer 2. Ct held that he acted reasonably v. NOTES: 1. A lot of the speeding and plt maneuver cases and person for ex. Becomes a quadripalegicct says that this is NOT excessive force 2. You dont have to use MOST reasonable application or use of forcejust needs to be reasonable

b. Cruel and Unusual Punishment- 8tham

i. STANDRAD: cruel and unusual punishmentdeliberate indifference ii. The 8tham has been held to impose affirmative duties on government to protect incarcerated persons from the violence of other parties, not just state actors. It has also been read to impose an affirmative duty on the giovt to provide for the serious medical needs on inmates and other necessities iii. The deliberate indifference standard in 8th am failure to protect cases is a subjective standardeven though the inquiry of whether the risk of harm was sufficiently serious is objective a. Officer will not be liable for prisoner-prisoner violence unless the officer disregarded a serious risk of which he was ACTUALLY awarefarmer case b. Just to note: also requirement special/unique to prison cases that may affect the remedies of procedure in prisoners litigation 2. Subjective (intent of officer/ meanness/intent to cause harm) 3. Objective (punishment has to be serious) 4. Needs to be an objective deprivation of human needserious need

a. Small bits of deprivation can add up b. One single human need includefood, warmth, hygiene 5. it has to be a risk that the officer actually knows about iv. Wilson v. Sieter, handout 1. Facts: While detained at the Hocking Correctional Facility in

Nelsonville, Ohio, Pearly Wilson claimed he experienced cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Wilson sought financial awards and an injunction against the prison under 42 U.S.C. 1983. He filed suit in a federal district court against two state prison officials, Richard P. Seiter and Carl Humphreys. The District Court ruled against Wilson, and the United States Court of Appeals for the Sixth Circuit affirmed. It held that Wilson had to show that the prison officials had a "culpable state of mind" when inflicting harm upon him. 2. Issue: Did the United States Court of Appeals for the Sixth Circuit err by holding that prison officials must have a "culpable state of mind" in order to establish cruel and unusual punishment of an inmate? Did the Court of Appeals err by overlooking an inmate's claim that prison officials showed "deliberate indifference" to his conditions of confinement? 3. Holding: No and Yes. Justice Antonin Scalia delivered the opinion for a unanimous court. The Court referred to its earlier decisions in Francis v. Resweber and Estelle v. Gamble to establish that cruel and unusual punishment required the "unnecessary and wanton infliction of pain." For this to occur, the prison officials had to exhibit intentional cruelty, which would result in a "culpable state of mind." However, "deliberate indifference" to a prisoner's conditions also constituted abusive treatment according to this standard. Therefore the Court of Appeals should have considered this aspect of Wilson's grievances.
4. v. Farmer v. Brennan, handout 1. Petitioner, a preoperative transsexual who projects feminine characteristics, has been incarcerated with other males in the federal prison system, sometimes in the general prison population but more often in segregation. Petitioner claims to have been beaten and raped by another inmate after being transferred by respondent federal prison officials from a correctional institute to a penitentiary--typically a higher security facility with more troublesome prisoners--and placed in its general population. Filing an action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, petitioner sought damages and an injunction barring future confinement in any penitentiary, and alleged that respondents had acted with "deliberate indifference" to petitioner's safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of

inmate assaults and that petitioner would be particularly vulnerable to sexual attack.
2. Held: A prison official may be held liable under the Eighth Amendment for acting with "deliberate indifference" to inmate health or safety only if he knows that inmates face a substantial risk ofserious harm and disregards that risk by failing to take reasonable measures to abate it. a. (a) Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must protect prisoners from violence at the hands of other prisoners. However, a constitutional violation occurs only where the deprivation alleged is, objectively, "sufficiently serious," Wilson v. Seiter, and the official has acted with "deliberate indifference" to inmate health or safety. b. (b) Deliberate indifference entials something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this does not establish the level of culpability deliberate indifference entails, for the term recklessness is not self defining, and can take subjective or objective forms. Pp. 7 9. c. (c) Subjective recklessness, as used in the criminal law, is the appropriate test for "deliberate indifference." Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court's cases. The Amendment outlaws cruel and unusual "punishments," not "conditions," and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court's cases. Petitioner's invitation to adopt a purely objective test for determining liability--whether the risk is known or should have been known--is rejected. This Court's cases "mandate inquiry into a prison official's state of mind," id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a "subjective component." d. (d) The subjective test does not permit liability to be premised on obviousness or constructive notice. However, this does not mean that prison officials will be free to ignore obvious dangers to inmates. Whether an official had the requisite knowledge is a question of fact subject to demonstration in the usual ways, and a factfinder may conclude that the official knew of a substantial risk from the very fact that it was obvious. Nor may an official escape liability by showing that he knew of the risk but did not think that the complainant was especially likely to be assaulted by the prisoner who committed the act. It does not matter whether the risk camefrom a particular source or whether a prisoner faced the risk for reasons personal to him or because all prisoners in his situation faced the risk. But prison officials may not be held liable if they prove that they were unaware of even an obvious risk or if they responded reasonably to a known risk, even if the harm ultimately was not averted. e. (e) Use of subjective test will not foreclose prospective injunctive relief, nor require a prisoner to suffer physical injury before

obtaining prospective relief. The subjective test adopted today is consistent with the principle that "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.". In a suit for prospective relief, the subjective factor, deliberate indifference, "should be determined in light of the prison authorities' current attitudes and conduct," Helling v. McKinney, 509 U. S. ___, ___: their attitudes and conduct at the time suit is brought and persisting thereafter. In making the requisite showing of subjective culpability, the prisoner may rely on developments that postdate the pleadings and pretrial motions, as prison officials may rely on such developments to show that the prisoner is not entitled to an injunction. A Court that finds the Eighth Amendment's objective and subjective requirements satisfied may grant appropriate injunctive relief, though it should approach issuance of injunctions with the usual caution. A court need not ignore a prisoner's failure to take advantage of adequate prison procedures to resolve inmate grievances, and may compel a prisoner to pursue them.

3.

c. Equal Protection- 14tham

i. STANDRAD: discriminatory intent, not just effect ii. Class of oneEP cases 1. Soverign interest v. proprietary interest a. Sovereign: does it eminate from legislature/laws; is person asking permission to do something? i. License, zoning ii. Just bc there is revenue, does not mean its proprietarycould be a fee b. Proprietary: look at market participant; if acting as a market participant, then no 14tham right i. if not a participantmore n more like soveren stating the rules ii. difference between state being a participant and controlling the market iii. ex: employment, govt owner of something 2. Discretionary v. nondiscretionary iii. Arlington Heights v. Metro. Housing Corp. handout

1. Facts: The Metropolitan Housing Development Corp. (MHDC) contracted with the Village of Arlington Heights ("Arlington") to build racially integrated low- and moderate-income housing. When MHDC applied for the necessary zoning permits, authorizing a switch from a single- to a multiple-family classification, Arlington's planning commission denied the request. Acting on behalf of itself and several minority members, MHDC challenged Arlington's denial as racially discriminatory. 2. Issue: Was Arlington Height's denial of a zoning request, necessary for the creation of low- and moderate-income housing,

racially discriminatory in violation of the Fourteenth Amendment's Equal Protection Clause? 3. Holding: Perhaps. After finding that MHDC had proper federal standing, since it acted on behalf of black plaintiffs who stood to suffer direct and measurable injuries from Arlington's denial, the Court held that it failed to establish Arlington's racially discriminatory intent or purpose. While indicating that Arlington's zoning denial may result in a racially disproportionate impact, the evidence did not show that this was Arlington's deliberate intention. Accordingly, the Court reversed and remanded for further consideration iv. Village of Willowbrook v. Olech, handout 1. Facts: Grace Olech asked the Village of Willowbrook to connect her property to the municipal water supply. The Village conditioned the connection on Olech's granting of a 33-foot easement. Olech refused, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. Olech sued the Village claiming that the Village's demand of an additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment. The District Court dismissed the case for failure to state a cognizable claim under the Equal Protection Clause. In reversing, the Court of Appeals held that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a "spiteful effort to 'get' him for reasons wholly unrelated to any legitimate state objective." 2. Issue: Does the Equal Protection Clause give rise to a cause of action on behalf of a "class of one" where the plaintiff did not allege membership in a class or group 3. Holding: Yes. In a per curiam opinion, the Court held that Olech's allegations were sufficient to state a claim for relief under traditional equal protection analysis. "Our cases have recognized successful equal protection claims brought by a 'class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment,"
v. vi. Engquist v. Oregon Department of Agriculture, handout

1. Facts: Anup Engquist, a woman of Indian descent, brought this action against the Oregon Department of Agriculture alleging that a co-worker at the Department harassed her and eventually engineered her termination. Although Engquist asserted numerous claims, a jury in the federal district court only found in her favor on her equal protection, substantive due process, and intentional interference with employment claims.On appeal, the U.S. Court of Appeals for the Ninth Circuit struck those jury verdicts. Although the Ninth Circuit acknowledged that the Supreme Court had

previously dealt with such "class of one" equal protection claims eight years ago in a case, Village of Willowbrook v. Olech, involving a village resident suing the village for unjustified zoning decisions, it refused to apply that short, two-page opinion to Engquist's claim. The Ninth Circuit reasoned that the Olech opinion may only apply when the government is in the role of regulator and did not clarify whether it would also apply in an employment context such as this one. In seeking Court review, Engquist noted the pervasive splits in the circuits regarding the proper allocation of the Court's decision in Olech, while Oregon claimed that Olech should be construed narrowly so as to avoid a deluge of petty cases against the government. Oregon also pointed out that even if the case were to be heard, Oregon would have qualified immunity and Engquist would necessarily lose. 2. Issue: Does the Court's ruling in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), allow so-called "class of one" equal protection claims against government bodies in the context of employment discrimination? Holding: No, it does not. The Court ruled 6-3 that the "class-ofone" theory of equal protection does not apply in the public employment context. The government enjoys significantly greater leeway in dealing with employees than it does with the public at large in its capacity as a regulator.
vii.

d. Deprivations of Liberty or Property- 14tham i. Life, Liberty and Property 1. Complaints alleging violations of the Bill of Rights and most
other non-due process provisions of the constitution are immediately actionable under 1983 w/out regard to state remedies Problematic when the liberty or property interests protected by the Due Process Clausae that plts seek to vindicate arent fundamental rights a. With respect to nonfundamnetal rights the ct has suggested that it can only be protected by procedural due process clause Incentive to make claim one based on a fundamental right or a substantive due process claimb/c that way, you have immediate access to 1983 a. Make tort a substantive due process claim if its outrageous or shocking!!! Substantive: Loving, Roe v. Wade, Lawrence v. TX, Griswold a. Govt cannot take away a fundamental right w/out compelling interest Procedural

2.

3.

4. 5.

a. what the state must do before taking something away b. notice and opportunity to be heard c. need to show a liberty or property interest in order for
procedural due process to be triggered ii. Paul v. Davis p259-73 1. Facts: A flyer identifying "active shoplifters" was distributed to merchants in the Louisville, Kentucky area. The flyer included a photograph of Edward C. Davis III, who had been arrested on a shoplifting charge. When the charge was dismissed, Davis brought an action against Edgar Paul, the Louisville chief of police. Davis alleged that the distribution of the flyer had stigmatized him and deprived him of his constitutional rights. 2. Issue: Did the distribution of the flyer violate Davis's right to privacy and liberty under the Due Process Clause of the Fourteenth Amendment? 3. Holding: the Court held that Davis had not been deprived of any constitutional rights under the Due Process Clause. The Court also emphasized that constitutional privacy interests did not cover Davis's claims. The Court argued that the constitutional right to privacy was limited to matters relating to "marriage, procreation, contraception, family relationships, and child rearing and education." The publication of records of official acts, such as arrests, did not fall under the rubric of privacy rights. 4. The central holding of Paul v. Davis is that Davis has no cognizable liberty interest in his reputation. The courts motivation for taking that position was clearly the desire to avoid making the 14tham a font for tort law a. stigma plus i. stigma plus test requires that a plaintiff suing the

government for a due process violation arising out of injury to reputation show an additional injury such as loss of employment or the foreclosure of future employment opportunities.
iii. DeShaney v. Winnebago County p277-81 1. Facts: 4year old was beaten by his father and went into a coma requiring brain surgery and he suffered brain damage so severe that he would be in an instiution forever. Social services had been contacted previously about the incident and placed boy back with familyauthorities refused coercive intervention. Mother brought a 1983 cliam. The complaint alleged that the respondents deprived Joshua of his liberty interest without due process of law, in violation of his rights under 14tham, by failing to intervene to protect him against a risk of violence at his fathers hands which they knew or should have known 2. Holding: this is a cliam invoking a substantive due process claim; as a general matter, conclude that a states failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause

a. A duty to protect may arise out of certain special relationships created or assumed by the state w/respect to particular individuals 3. After Deshaney, there remain two theories for holding governments or public officials liable for not preventing tortuous acts by private parties: a. Govt is responsible when the injury occurs while the plt is in state custody or when the govt has a special relationship with the plt p281 b. State is liable when the danger of an injury at private hands is state created. P281 4. **Absent a state-imposed, or involuntary, custodial setting, the state is under no affirmative obligation to spend its resources to protect indivs from harm 5. Limits on Deshaney: a. Special relationship b. State created harm iv. Castle Rock v. Gonzales p281-5 1. In Deshaney, the court declined to consuder the question of whether Wisconsins child protection statutes had created a state law entitelemnet to protective services, the denial of which would give rise to a PDP claimcts decides issue in Gonzales 2. Facts: woman had a restraining order for husband to stay away from her and the kids. He took the kids and she called police couple times asking for help. They refusedkids found deadmurdered by husband 3. Holding: the provisions of the law of the restraiing order dont make enforcement mandatory. A well established tradition of police discretion has long co-existed with apparently mandatory arrest statutes a. Even if statute made enforcement mandatory, it does not mean that respondent had an entitlement to the enforcement. Making the actions of government employees obligatory can serve various legitimate ends other than the conferral of benefit on a specific class of people b. Court went on to say that even if there was some sort of entitlement, not sure that it arises to a property interest for purposes of due process clause v. Parratt v. Taylor p287-90 1. Facts: plt was a prison inmate who ordered $23.50 worth of hobby materials. When they arrived, he was in segregation and was not permitted to recive them. The materials were therefore signed by two employees of the prison hobby center. When Taylor was released and packages were no where to be found, he sued. He claimed that they negligently deprived him of property without due process of law 2. Issue: whether state post-deprivation process was sufficient to remedy the loss?

3. Holding: Prisoner who was seeking a post deprivation hearing could not go forward w/him 1983 claim but must pursue his state remedies a. Distinguished from Monroe b. Herethis is a PDP claim; it was impossible to predict the random and unauthorized behavior of the officials who had failed to follow established state procedures and who were responsible for the loss of the hobby kit. No pre-deprivation process would have been possible. But, post-deprivation procedures adequate c. Parrat involved a negligent deprivationbut same rule applies even for intentional deprivations 4. The SC backtracked from one of its subsidiary conclusions in Parratt, when it later held that the Due Process Clause was not violated by the merely negligent behavior of governmental officials 5. **Parrats rationale is limited to cases of random and unauthorized actions. Distinguishing it from Monroethe deprivations at issue are different. Parrats reasoning only applies to non-fundamental rights only. The deprivation in Monroe was a 4tham fundamental right** 6. By contrast, when an officials deprivation of such nonfundamental rights is not random and unauthorized, but pursuant to some established state procedure or is otherwise systematic, then the Paratt requirement of resort to post-deprivation state remedies is said to be inapplicable Zinermon 7. When a deprivation is pursuant to established policy and is not random and unauthorized, it is practical and feasible for the state to provide pre-deprivation process for the aggrieved party Moore v. Board of educ. If however, the claim is that constitutionally required state deprivation was in place, but that state officials merely failed somehow to follow it, then the deprivation becomes effectively random and unauthorized, and state court post-deprivation remedies are all that the constitution demands 8. In Hudson v. Palmer, during unannounced shakedown of prison and the intentional destruction of personal property, ct held that even intentional deprivation of property would not violate the DPC when the state provided a meaningful postdeprivation procedure to make good of loss vi. Daniels v. Williams p290-1 1. Facts: prisoner in a city jail tripped over a pillow 2. Holding: court overruled the part of Parratt that presupposed that negligent actions could constitute official deprivations and said that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property vii. Davidson v. Cannon p291 1. Extended reasoning in Daniels to deprivations of liberty too

2. Facts: Davidson sued state prison officials for failure to protect him from another inmate. Prior to assault, victim sent authorities a note, but they failed to take action. Ct rejected this claim on the authority of Daniels 3. Dissent !* viii. County of Sacremento v. Lewis p293-4; SDP claim 1. Facts: 2 boys on a motorcycle speeding and police chased themboy was killed. Parents filed 14tham substantive due process claim for a deprivation of life 2. Holding: proper standard here was whether the deputy had been guilty of an abuse of power which shocks the conscience In the specific context of high speed chases, it required an intent to harm the suspects ix. Zinermon v. Burch p295-314 1. Darrell Burch (Respondent) brought this action under 42 U.S.C. Section:1983 against 11 Florida State Hospital (FSH) physicians, administrators and staff (Petitioners), alleging they deprived him of his liberty without due process of law by admitting him as a voluntary mental patient when he was incompetent to give informed consent to his admission 2. HOLDING: Respondents complaint was sufficient to state a claim under Section:1983 for violation of his procedural due process rights. Parratt and Hudson come into play in special cases of the general Mathews v. Eldridge analysis where postdeprivation are all the process that is due, simply because they are the only remedies the State could be expected to provide. This case was not controlled by Parratt and Hudson for three basic reasons. First, the deprivation of liberty was not unpredictable, because an error will occur, if at all, in the admission process. Second, a predeprivation process was not impossible here. The Florida statutes did not direct any facility staff to determine whether a person was competent to give consent. Because Petitioners had state authority to deprive persons of liberty, the Constitution required them to concomitant duty to see that no deprivation occurred without adequate procedural protections. Third, Petitioners conduct was not unauthorized because the statute delegated broad authority to them to effect the deprivation complained of here. x. Pre-deprivation Procedural Due Process: pre-deprivaion process is appropriate only in extraordinary circumstances in which even postdepriation process will not adequately safeguard rights 1. According to Matthews v. Eldridge: predeprivation notice and hearing available when the risk of an erroneous deprivation, considered in light of the private interests that coyuld be affected, outweighs the govts interest in promoting the axn

D. Rightssecured by thelaws

a. A 1983 action will be unavailable to redress violations of federal statutes unless Congress has unambiguously created judicially enforceable rights. In addition, even if the underlying statute does create such rights, 1983 will be unavailable to enforce it if the statute has its own enforcement mechanisms from which it can be inferred that Congress meant to displace the 1983 remedy i. 1.) statute creates enforceable rights in indivs ii. 2.) Congress did not include its own remedies to sub for 1983 b. Maine v. Thiboutot p. 316-27 i. Facts: man has 8 kidsgets benefits for children. Benefits terminated for the 5 children that are not legally his, but whom he is legally obligated to support. Statute states that they are not qualifying expenses under the statute. Plt claimed he was denied law secured by the state ii. Issue: can you use 1983 to enforce a statute? YES iii. 1983 COA permission slip c. Natl Sea Clammers p. 331-32 i. Facts: an org of commercial fisherman sued various govt authorities to stop the discharge of sewage and other pollutants into NY Harbor and the Hudson River. Plts claimed that pollution violated federal statutes ii. SC held that there are already available remedies, it is hard to believe that congress intended to preserve the 1983 right of action when it created so many specific statutory remedies. iii. when the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under 1983 d. NOTE: i. Wright v. Roanoke Redevelopment: 1. Facts: low income tenants overbilled for utilities 2. Issue: whether the federal rent ceilig could be enforced by 1983 3. Holding: if there is a state deprivation of a right secured by a federal statute. 1983 provides a remedial cause of action unless the state ctor demonstrates by express provision or other specific evidence from the statute itself that congress intended to foreclose such private enforcement 4. Ct held that the remedia; mechanisms provided are not sufficienly comprehensive and effective to raise a clear inference that congress intended to foreclose a 1983 COA 5. Nothing in the Housing Act or the Brooke Amendment evidences

that Congress intended to preclude petitioners' 1983 claim against respondent. Not only are the Brooke Amendment and its legislative history devoid of any express indication that exclusive enforcement authority was vested in HUD, but also both congressional and agency actions have indicated that enforcement authority is not centralized, and that private actions were anticipated. Neither are the remedial mechanisms provided by the statute sufficiently comprehensive and effective to raise a clear

inference that Congress intended to foreclose a 1983 cause of action for the enforcement of tenants' rights secured by federal law.
e. Blessing v. Freestone p. 334-6 i. Facts: an attempt by 5 mothers to enforce Social Security Act provisions through 1983 pursuant to title IV-D. plts claimed that the state systematic failures violated their federal rights under 1983 ii. SC reversed Ct App stating that indivs didnt have rights in title IVDdont foreclose that some provisions of title IV-D give rise to individual rights, just want dist ct to state which rights they are assertingand complaint unclear f. Alexander v. Sandoval p. 337i. Facts: Because it is a recipient of federal financial assistance, the

Alabama Department of Public Safety (Department) is subject to Title VI of the Civil Rights Act of 1964. Section 601 of Title VI prohibits discrimination based on race, color, or national origin. Under section 602, the Department of Justice issued a regulation forbidding funding recipients to utilize criteria or administrative methods having the effect of subjecting individuals to discrimination based on the prohibited grounds. Martha Sandoval brought a class action suit to enjoin the Department from administering state driver's license examinations only in English. Sandoval argued that the English-only policy violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. Ordering the Department to accommodate nonEnglish speakers, the District Court enjoined the policy. The Court of Appeals affirmed. James Alexander, the Director of the Department, unsuccessfully argued before both courts that Title VI did not provide a cause of action to enforce the regulation. ii. Issue: Does Title VI of the Civil Rights Act of 1964 provide a cause of action to enforce the Department of Justice's regulation forbidding federal financial assistance recipients to utilize criteria or administrative methods that have the effect of subjecting individuals to discrimination based on race, color, or national origin? iii. Holding: No. In a 5-4 opinion delivered by Justice Antonin Scalia, the Court held that there is no private right of action to enforce disparateimpact regulations promulgated under Title VI. "Title VI itself directly reaches only instances of intentional discrimination," wrote Justice Scalia, "[n]either as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under [section 602]."
g. Gonzaga v. Doe p338-40 i. In this case the SC sought to align the tests for determining when there is an implied right of action and when 1983 provides for an express remedy: ii. Facts: case concerned the FERPA which prohibits the federal funding of schools that permit the release of students records w/out written consent iii. Issue: May a student sue a private university for damages to enforce provisions of the Family Educational Rights and Privacy Act of 1974?

iv. Holding:No. Court held that such an action is foreclosed because the relevant provisions of FERPA create no personal rights to enforce. The Court reasoned that the creation of individual rights required clear and unambiguous terms, which FERPA's confidentiality provisions did not contain. "FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions 1. In clearing things up the ct states: a. we now reject the notion that our case permit anything short of an unambiguous conferred right to support a cause of action brought under 1983accordingly, only rights, not benefits or interests may be enforced under that section. b. ** whether a statutory violation may be enforced through 1983 is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute c. The question of whether Congressintended to create a private right of action is definitely answered in the negative where a statute by its terms grants no private right to any identifiable class. i. But even where a statute is phrased in such explicit rights-creating terms, a plt suing under an implied right of action still must show that the statute manifest an intent to create not just a private right but also a private remedy d. Once the plt demonstrates that a statute confers an individual right, the right is presumptively enforceable by 1983. But the initial inquirydetermining whether a statute confers any right at allis no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute confers rights on a particular class of persons h. City of Rancho Palos Verdes v. Abrams p340 i. Facts: Rancho Palos Verdes, a city in California, gave Mark Abrams a

permit to construct an antenna on his property for amateur use. But when the city learned Abrams used the antenna for commercial purposes, the city forced Abrams to stop until he got a commercial use permit. Abrams applied and the city refused to give him the permit. Abrams then sued in federal district court, alleging the city violated his rights under the Telecommunications Act of 1996. Abrams sought damages under a federal liability law that allowed people to sue for damages for federal rights violations.The district court agreed with Abrams and ordered the city to give Abrams the permit. But the court refused Abrams' request for damages under the separate federal liability law. The court said Congress intended for violations of rights under the Telecommunications Act to include only remedies specifically found in that act. The Ninth Circuit

Court of Appeals reversed and ruled that because the act did not contain a "comprehensive remedial scheme," Abrams could seek damages under other federal laws. ii. Issue: May people whose rights guaranteed by the Telecommunications Act of 1996 are violated seek remedies other than those allowed by the act? iii. Holding: No. the Court held that Abrams could not enforce the limitations of the Telecommunications Act on local authorities through federal liability law, because the act provides its own judicial remedy. Congress could not have meant the judicial remedy expressly authorized by the Telecommunications Act to co-exist with an alternative remedy.

E. Shall be liable
a. Soverign Immunity i. Ex Parte Young p. 8-12 1. Facts: The state of Minnesota passed laws limiting what railroads could charge in that state, and establishing severe penalties, including fines and jail for violators. Some railroad company shareholders filed a suit asserting that the laws were unconstitutional as violating the DPC of the 14thAm as well as the Dormant Commerce Clause. The shareholders sued the railroads to prevent them from complying with the law, and also sued Edward T. Young, then the Attorney General of Minnesota, to prevent him from enforcing the law. Young argued that the Eleventh Amendment, which prohibits states from being sued by citizens, meant that the court did not have jurisdiction to hear the case. The federal court issued an injunction against Young enforcing the law. The following day, Young filed suit to force the railroads to comply with the statute. The federal judge ordered Young to explain his actions, and Young reiterated his 11thAmclaim-judge held Young in contempt of court. 2. Issues: a. Is statute unconstitutional? YES b. tension between the Eleventh Amendment and the Fourteenth Amendment. The Eleventh Amendment had recently been held in Hans v. Louisiana, 134 U.S. 1 (1890), to prohibit federal courts from hearing suits by citizens against their own states. Conversely, the Fourteenth Amendment prohibits the states from violating the due process rights of their citizens. Could a federal court entertain a lawsuit seeking to enjoin a state official from carrying out state laws that were purportedly in violation of the Fourteenth Amendment?

3. Holding: allows suits in federal courts against officials acting on behalf of states of the union to proceed despite the State's sovereign immunity, when the State acted unconstitutionally. a. The official is stripped of any official or representative character if enforcement of SL violates the federal constitution, even though officials conduct is still regarded as state action under the 14tham ii. Edelman v. Jordan p12-20 1. Facts: class action to challenge the practices of certain Illinois officials in administering federal-state programs under the Aid to the Aged, Blind, or Disabled Act. Wanted payment retroactively from date of initial eligibility bc claims that officials failed to process AABD apps in timely fashion 2. Issues: a. Since the 1890 decision in Hans v. Louisiana, the Eleventh Amendment had been held to recognize the sovereign immunity of states from suits by their citizens. However, the 1908 case of Ex parte Young had allowed an exception, that citizens could seek injunctive relief against state officials to stop them from carrying out unconstitutional state policies.

b. In this case, the Supreme Court would have to examine whether a federal court can require a state to restore money wrongfully withheld from citizens by the state, if the order to restore the funds is in the form of an injunction requiring the state to stop its wrongful possession of those funds.
3. Holding: held that, because of the sovereign immunity recognized in the Eleventh Amendment, a federal court could not order a State to pay back funds unconstitutionally withheld from parties to whom they were due iii. Abrogation of Immunity p 52-4 iv. Hafer v. Melo p. 54-60 1. Facts: during campaign, US atty alleged to have secured jobs through payment. Won election and dismissed 18 EEs 2. Issue: whether state officers may be held personally liable for damages under 1983 based upon actions taken in their official capacities 3. Holding: state officials sued in their individual capacities are persons within the meaning of 1983. The 11tham does not bar such suits

b. Official Immunity- Absolute i. Persons acting in a judicial capacity are accorded an absolute immunity from 1983 suits for damages for all of their judicial acts no matter how erroneous or objectively unreasonableat least if they are acting within their jurisdiction

ii. Legislators and those who act in a lawmaking capacity are immune from damages and injuctive relief under 1983 for their legislative acts iii. Prosecutors have quasi-judicial immunity; when acting in an investigatory capacity they may assert only qualified immunity iv. Bogan v. Scott-Harris p. 74-82 1. Facts: Janet Scott-Harris filed suit under 1983 against the city of Fall River, Massachusetts, the city's mayor, Daniel Bogan, the vice president of the city counsel, Marilyn Roderick, and others, alleging that the elimination of the city department in which ScottHarris was the sole employee was motivated by a desire to retaliate against her for exercising her First Amendment rights. The jury found the city, Bogan and Roderick liable on the First Amendment claim. The First Circuit set aside the verdict against the city, but affirmed the judgments against Bogan and Roderick 2. Issue; Are actions by local officials introducing, voting for, and signing an ordinance outside the scope of legislative activities because of the motives of the government actors? 3. Holding: No. Local legislators are entitled to the same absolute immunity from civil liability under Section 1983 for their legislative activities as are federal, state and regional legislators. Whether an act is legislative turns on the nature of the act itself, rather than on the motive or intent of the official performing it. The acts at issue here were clearly legislative, and the ordinance itself bore all the hallmarks of traditional legislation. v. Stump v. Sparksman p. 82-96 1. Facts: A mother filed a petition in an Indiana Circuit Court, a court of general jurisdiction under an Indiana statute, for authority to have her "somewhat retarded" 15-year-old daughter (a respondent here) sterilized, and petitioner Circuit Judge approved the petition the same day in an ex parte proceeding without a hearing and without notice to the daughter or appointment of a guardian ad litem. The operation was performed shortly thereafter, the daughter having been told that she was to have her appendix removed. About two years later she was married, and her inability to become pregnant led her to discover that she had been sterilized. As a result she and her husband (also a respondent here) filed suit in Federal District Court pursuant to 42 U.S.C. 1983 against her mother, the mother's attorney, the Circuit Judge, the doctors who performed or assisted in the sterilization, and the hospital where it was performed, seeking damages for the alleged violation of her constitutional rights. 2. Holding: The Indiana law vested in the Circuit Judge the power to entertain and act upon the petition for sterilization, and he is, therefore, immune from damages liability even if his approval of the petition was in error. Judges are absolutely immune. vi. Imbler v. Pachtman 96-100 1. Facts: Petitioner, convicted of murder, unsuccessfully petitioned for state habeas corpus on the basis of respondent prosecuting attorney's revelation of newly discovered evidence, and charged that respondent had knowingly used false testimony and

suppressed material evidence at petitioner's trial. Petitioner thereafter filed a federal habeas corpus petition based on the same allegations, and ultimately obtained his release. He then brought an action under 1983, seeking damages for loss of liberty allegedly caused by unlawful prosecution, but the District Court held that respondent was immune from liability under 1983, and the Court of Appeals affirmed. 2. Held: A state prosecuting attorney who, as here, acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the State's case, is absolutely immune from a civil suit for damages under 1983 for alleged deprivations of the accused's constitutional rights. vii. Pottawattamie County v. McGheehandout 1. Facts:In 1978, Curtis W. McGhee Jr. and Terry Harrington were

convicted of murder and sentenced to life imprisonment by an Iowa state court. In 2002, Mr. McGhee's and Mr. Harrington's convictions were reversed because the prosecutor at their trial improperly withheld evidence of an alternative suspect. Subsequently, Mr. McGhee and Mr. Harrington filed civil claims in an Iowa federal court against Pottawattamie County, Iowa, and the prosecutors and officers involved in their prosecution. The defendants moved for summary judgment arguing that they were absolutely immune to civil prosecution. The district court found some defendants immune to certain claims, but denied immunity to other defendants on the other claims. The U.S. Court of Appeals for the Eighth Circuit granted interlocutory appeal on the question of whether the prosecutors were absolutely immune to civil prosecution.The Eighth Circuit held that the prosecutors were not immune from claims that they violated Mr. McGhee's and Mr. Harrington's due process rights. The court reasoned that allegations that prosecutors obtained, manufactured, coerced, and fabricated evidence did not fall within "a distinctly prosecutorial function" and thus the prosecutors were not immune to the claims. 2. Issue: May a prosecutor be subject to civil prosecution when he allegedly violated the criminal defendants' substantial due process rights by fabricating evidence and then introducing it at trial against the defendants?
viii. Briscoe v. LaHue p100-102 1. Held: Title 42 U.S.C. 1983 (1976 ed., Supp. V) does not

authorize a convicted state defendant to assert a claim for damages against a police officer for giving perjured testimony at the defendant's criminal trial. 2. The common law provided absolute immunity from subsequent damages liability for all persons -- governmental or otherwise -who were integral parts of the judicial process. Section 1983 does not authorize a damages claim against private witnesses. Similarly, judges, Pierson v. Ray, and prosecutors, Imbler v. Pachtman, may not be held liable for damages under 1983 for the performance of

their respective duties in judicial proceedings. When a police officer appears as a witness, he may reasonably be viewed as acting like any witness sworn to tell the truth, in which event he can make a strong claim to witness immunity. Alternatively, he may be regarded as an official performing a critical role in the judicial process, in which event he may seek the benefit afforded to other governmental participants in the same proceeding. Nothing in 1983's language suggests that a police officer witness belongs in a narrow, special category lacking protection against damages suits

c. Official ImmunityQualified i. Law enforcement and most other officials, have qualified immunity if they can show that they acted in objective good faiththat a reasonable officer would not have known that their actions violated the constitution ii. This is an affirmative defense that must be pled by the officer in his answer to the complaintcrawford-el v. britton iii. Thisstate and local officiers will be personally accountable in 1983 actions only when their unconstitutional acts violate clearly established constitutional rights of which a reasonable official would have known 1. Acts of which the officer will have fair warningHope v. Pelzer a. Look to SC cases, and cases in the circuit iv. Scheuer v. Rhodes p105-15 1. Facts: defs are alleged to have intentionally, recklessly, willfully and wantonly caused an unnecessary deployment of the Ohio Natl Guard on Kent State campusresulted in the death of plts decedents 2. Issue: whether the district ct correctly dismissed civil damage actions brought under 1983 on the ground that they are barred by the 11th amendment a. Whether the officials have absolute immunity of qualified immunity 3. Holding: the dismissal was inappropriate at this stage of the litigationofficials here have qualified immunityin varying scope a qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all circumstances that reasonably appeared at the time of action a. Reasonable grounds for the belief formed coupled with good-faith belief v. Wood v. Strickland p119-20 1. Facts: two high school students sued school board members who expelled them for spiking punch served at a school event

2. Issue: whether good faith is subjective or objective 3. Holding: bothin specific context of school discipline, school board members are not immune from liability for damages under 1983 if he knew or reasonably should have known that he action he took would violate the const rights of a studentor if he took action w/malicious intent to deprive of const rights vi. Harlow v. Fitzgerald p120-23 1. Facts: Fitzgerald was a notorious whistle-blower in the Dept of Defense. He was terminated and brought a Bivens action against a number of people 2. Holding: (1) presidential aides generally are entitled only to
qualified immunity; (2) aides failed to establish that their official functions required absolute immunity; (3) presidential aides are entitled to application of qualified immunity standard that permits defeat of insubstantial claims without resort to trial; and (4) government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which reasonable person would not have known.

a. Bare allegations of malice should not suffice to subject govt officials either to the costs of trial or to to the burdens of broad-reaching discovery. We therefore hold that govt officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or const rights of which a reasonable person should have known vii. Wilson v. Layne p124-32: 1. STANDARD FOR QUALIFIED IMMUNITY!!!!* 2. Facts: police arrived where they believed to be the home of someone they had an arrest warrant for. The home was actually the parents of the guy. Police arrived with the media and allowed the media in the home to take pics. Claimed a violation of the 4tham 3. Issue: whether the police had qualified immunity a. Whether there was a constitutional right b. Whether the right was clearly established 4. Holding: there was a violation of a constitutional right, but the violation was not clearly established and the officers therefore had qualified immunity a. Was not clearly established that bringing in the media was a violation of the 4tham 5. Dissent: it was clearly established viii. Hope v. Pelzer p142-47 ix. Crawford-El v. Britton p152-66

d. Every Person: Muncipailty Liability

i. Cities, counties, and other local governmental entities are suable under 1983. As a matter of statutory interpretation, they are among the class of suable persons to which 1983 refers ii. Local governments are not liable in damages for the constitutional harms inflicted by their officers on a vicarious liability or respondent superior basis iii. Instead, damages action under 1983 for the unconstitutional acts of one of its officials only if the plaintiff can show that the official acted pursuant to some law, custom , or policy of the government entity iv. The unauthorized, random unconstitutional acts of a local official are therefore not ordinarily attributable to the entity for which the official works for purposes of liability under 1983, although the official herself may still be personally liable herselfsubject to immunities that may be raised v. If city or county liablecannot claim a defense of good faithNO IMMUNITY!! vi. Issues with these cases is usually: what constitutes governmental custom or policy? 1. SC has held that not just formal legislative enactments, but also the individual decision of those who are final policymakers can subject local governments to monetary liability 2. Custom and Informal Policy: a. standing operating procedure; persistent and widespread vii. Policymakers can subject local governments to monetary liability. In addition, an entitys failure to train its officials can subject it to liability, and so can a failure to properly screen at the time of hire 1. SC has held that failure to train EEs can provide a basis for municipal liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the officials come in contactobjective standard a. Usually claim is that with duties assigned to officers, the need for more training is obvious and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city deliberately indifferent to the need i. Ex: use of deadly force by police 2. Fault in Hiring: a. Plt has to show the EEs background made specific risk a plainly obvious risk of being hired. b. In the hiring context, a 1983 plt has to do more than show a generalized risk, plt has to show that there is a direct causal link between the policy makers fault in hiring and the particular deprivation in constitutional rights viii. Monell v. NY City Dept p173-85 1. Holding: cities were among persons who could be sued under 1983in doing so, reversed a portion of Monroe v. Pape

ix. x.

xi.

xii.

xiii.

2. Local government would be liable under 1983 only when its custom or policy was the moving force behind the unconstitutional action of one of its officers 3. By making cities sueable persons, Monell was significant b/c it gave plts a real shot at significant monetary recovery when municipal officials (who might be able to invoke personal immunities for their good faith actions) have acted unconstutioally pursuant to local law, custom, or policy Will v. Michigan Dept p186 1. Held that person in 1983 does not include state or state official acting in their official capacities Owen v. City of Indep p. 188-208 1. Facts: city held liable when the city council voted to fire the citys chief of police and in so doing, violated his procedural due process rights 2. Holding: municipalities have no immunity from damages liability Pembaur v. City of Cincinnati p 215-19; decisions of policy makers 1. Facts: claim arises from officers trying to serve a warrant and when they arrived they couldnt get in. They called supervisor, who told them to call county prosecutor, who told them to go in. Claim arises out of Stegald which held that this would be a violation of 4tham 2. Issue: whether the county is liable for the actions of police officers--yes 3. Held: yes-a. In ordering the deputy sheriff to enter the petitioners clinic the county prosecutor was acting as the final decisionmaker for the county, and the county may therefore be held liable under 1983 4. Significant about Pembar is the pluralitys recognition that policy making could take place outside of lawmaking bodies and did not have to involve rules of general applicability. Rather, policy could be made by those individuals, as Monell states, whose edicts or acts may fairly be said to represent official policy City of ST Louis v. Praprotnik p219-36 1. Facts: the employee-plaintiff brought 1983 action against the individual who retaliated against him, and he also sued the city for which it worked 2. Holding: those who retaliated against the plaintiff were not policy makersthey did not have the delegated power to make employment policy so much as to implement it. Even if they implemented an unconstitutional policy, unconstitutionally, the city could not be held liable under Monell. 3. Significant about Praprotnik was the pluralitys conclusion that state law determined who was and who was not a policymaker. City of Canton v. Harris p237; failure to train

1. Facts: Harris was brought to police station in a patrol wagon. She was asked if she needed medical attention and responded w/an incoherent remarkshe received no medical attn. She was diagnosed w/suffering from several emotional ailments. She makes state law and constitional claims against the city and its officials. Among these claims was one seeking to hold the city liable under 1983 for its violation of Harris right under DPC of 14tham to receive medical attn while in police custody 2. Issue; whether municipality can ever be liable under 1983 for constitutional violations resulting from its failure to train municipal employeesyes 3. Holding: Yes; Plt needs to prove that the failure to train amounts to deliberate indifference and that the deficiency in training actually caused the police officers indifference to her medical needs a. Ct remanded and let Ct App decide whether she could get a new trial or find for city 4. Dissent: agrees w/everythingexcept, should just find for city xiv. Board of County Commissioners of Bryan County p246 1. Facts: she alleged that a county police officer used excessive force in arresting her and that the county itself was liable for her injuries based on sheriffs hiring and training decisions. e. Failure to train notes: i. for failure to train, focus is placed on the adequacy of the training program

in relation to the tasks particular officers must perform. However, it is not enough to merely show that a situation will arise and that an officer taking the wrong course of action in that instance will result in injuries to citizens. Even adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding a city or county liable for that mistake. A city or county will not be liable simply because it employed the officer whose actions resulted in a deprivation of a citizen's constitutional rights. Rather, a plaintiff must establish that government policy-makers either were or should have been aware that a training program was inadequate and did little or nothing about the problem. Which is to say, policy-makers were deliberately indifferent to the harm that would likely result from the failure to train ii. "Deliberate indifference" is a standard of fault that requires a showing that government policy makers acted with conscious disregard for the obvious consequences of their actions. (3) A pattern of constitutional violations by officers may indicate that a lack of proper training, rather than a one-time negligent administration of the training program or factors peculiar to the officer involved in a single incident, is responsible for the plaintiff's injury. (4) If a training program does not prevent constitutional violations and a pattern of injuries develops, officials charged with the responsibility of formulating policy for the agency may be put on notice that a new program is needed and a failure to address the problem may constitute

deliberate indifference. (5) In the absence of a pattern of violations, deliberate indifference may be inferred from the policy makers' continued adherence to a training program that they knew or should have known would fail to prevent violations in usual or recurring situations. (6) In such cases, the constitutional violation must be a highly predictable or plainly obvious consequence of the failure to train.

F. 1983 and Criminal Proceeedings a. Abstention i. Handout ii. Handout b. Habeas Corpus i. Heck v. Humphrey p. 491 1. Facts: While petitioner Heck's direct appeal from an Indiana

conviction was pending, he filed this suit under 42 U. S. C. 1983, seeking damagesbut not injunctive relief or release from custodyon the claim that respondents, acting under color of state law, had engaged in unlawful acts that had led to his arrest and conviction. 2. Holding: In order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U. S. C. 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under 1983. The foregoing conclusion follows upon recognition that the common law of torts provides the appropriate starting point for the 1983 inquiry, see Carey v. Piphus, 435 U. S. 247,257-258; that the tort of malicious prosecution, which provides the closest analogy to claims of the type considered here, requires the allegation and proof of termination of the prior criminal proceeding in favor of the accused, and that this Court has long been concerned that judgments be final and consistent and has been disinclined to expand opportunities for collateral attack on criminal convictions, Although the issue in cases such as this is not, therefore, the exhaustion of state remedies the dismissal of Heck's 1983 action was correct because both courts below found that his damages claims challenged the legality of his conviction
ii. Edwards v. Balisok p508 1. SC reaffirmed, and perhaps extended Heck

2. Facts: prisoner claimed that unconstitutional proceedings were used to take away his good time credits 3. Holding: the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the disciplinary action taken against him iii. Nelson v. Campbell p508 1. Facts: David Nelson was sentenced to death for murder and scheduled for execution in 1997. A series of appeals and habeas petitions in federal court delayed the execution until 2002, when an 11th Circuit Court of Appeals panel unanimously rejected a claim dealing with the alleged violation of his Sixth Amendment right to an attorney. After the final appeal was rejected, Nelson was rescheduled for execution on October 9, 2003. 2. Nelson filed petition in federal district court alleging that the method of execution proposed by Alabama violated his Eighth Amendment protection against cruel and unusual punishment. Alabama had notified Nelson that, because of damage done to his veins by previous intravenous drug abuse, the execution procedure might require corrections officers to cut through muscles and fat in his arm to get access to a vein that could carry the toxins. He claimed that this was an inhumane method of execution and should therefore be barred. Further, he argued that the petition was not an appeal of his conviction or sentence (appeals of both were prohibited by U.S. Code Title 28, Section 2254, a federal law designed to limit the number of habeas corpus appeals by death row inmates) but rather a freestanding lawsuit challenging the constitutionality of the proposed execution procedure. Alabama countered that Nelson's appeal was intended only to prolong his life through procedural delays, exactly what the federal law was designed to prevent, and should therefore be thrown out. 3. The federal district court agreed with Alabama, holding that Nelson's appeal dealt not just with the procedure but with the sentence itself. 4. Issue: Is a prisoner's appeal of the proposed procedure for his

execution functionally equivalent to a habeas corpus petition and therefore barred by Title 28, Section 2254 of U.S. Code? 5. Holding: No. In an opinion by Justice Sandra Day O'Connor, the Court ruled unanimously that Nelson's suit dealt only with the proposed method of execution, not with his conviction or sentence, and was therefore different from a habeas corpus appeal. Nelson had a right to challenge the necessity of the procedure for his execution using the same legal approach he would have used to challenge the conditions of his prison. However, the Court declined to rule on whether the execution would be constitutional if the district court found that cutting

through was indeed necessary, leaving that question for a case in which necessity had already been determined.
iv. Hill v. McDonough: 1. Facts: Case raised the Nelson issue in a different context. Hills challenge, filed four days before his scheduled execution for a 1983 murder conviction, was to the particular three-drug sequence used in FLs lethal injection protocol. Arg that the protocol was painful 2. Holding: this was controlled by Nelson and thereore appropriate for 1983 a. the compaint does not challenge the lethal injunction sentence as a general matter but seeks instead only to enjoin the respondents from executing Hill in the manner they currently intend c. Res Judicata i. 1983 lawsuits may be precluded as to some issues or claims b/c of prior adjudication 1. There will be preclusion if the plt was previously a def in criminal proceeding in issues that are now subject of 1983 challengeand issues decided against plt in criminal proceeding 2. Similarily, there will be claim preclusion if plt previously brought suit in state ct on state law grounds. Initial pursuit of state admin remedies may comprise a later filed 1983 claim 3. Full Faith and Credit Act: commands federal cts to give the same preclusive effect to prior state ct judgments that the judgment rendering ct would give them ii. Allen v. McCurry: 1. Facts: At a hearing before respondent's criminal trial, a Missouri court
denied, in part, respondent's motion to suppress, on Fourth and Fourteenth Amendment grounds, certain evidence that had been seized by the police. Respondent was subsequently convicted, and the conviction was affirmed on appeal. Because he did not assert that the state courts had denied him a "full and fair opportunity" to litigate his search and seizure claim, respondent was barred by Stone v. Powell, from seeking a writ of habeas corpus in a federal district court. Nevertheless, he sought federal court redress for the alleged constitutional violation by bringing a suit for damages under 1983 against the officers who had seized the evidence in question. District Court granted summary judgment for the defendants, holding that collateral estoppel prevented respondent from relitigating the search and seizure question already decided against him in the state courts. The Court of Appeals reversed and remanded, noting that Stone v. Powell, barred respondent from habeas corpus relief, and that the 1983 suit was, therefore, respondent's only route to a federal forum for his constitutional claim, and directed the trial court to allow him to proceed to trial unencumbered by collateral estoppel.

2. ROL: 3. Holding: The Court of Appeals erred in holding that respondent's inability
to obtain federal habeas corpus relief upon his Fourth Amendment claim renders the doctrine of collateral estoppel inapplicable to his 1983 suit. Nothing in the language or legislative history of 1983 discloses any congressional intent to deny binding effect to a state court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights. Nor does anything

in 1983's legislative history reveal any purpose to afford less deference to judgments in state criminal proceedings than to those in state civil proceedings.

iii. Migra p.527 1. Facts: Petitioner was employed by respondent Warren, Ohio, Board of Education (Board) as a supervisor of elementary education on an annual basis under written contractsterminated. The complaint alleged two causes of action -- a breach of contract by the Board and wrongful interference by the individual members with petitioner's employment contract. She won in state ct. Thereafter, petitioner filed action under 1983 against the Board, its members, and the Superintendent of Schools, alleging that, because of her activities involving a desegregation plan for the Warren elementary schools and a social studies curriculum that she had prepared, the Board members determined not to renew her contract, and that the Board's actions violated her rights under the First, Fifth, and Fourteenth Amendments. She requested injunctive relief and compensatory and punitive damages. The District Court granted summary judgment for the defendants on the basis of res judicata, inter alia, and dismissed the complaint. The United States Court of Appeals affirmed. 2. Holding: With respect to petitioner's 1983 claim, which was not litigated in state court, petitioner's state court judgment has the same claim preclusive effect in federal court that the judgment would have in the Ohio state courts. 3. Section 1983 does not override state preclusion law and guarantee petitioner a right to proceed to judgment in state court on her state claims and then turn to federal court for adjudication of her federal claimsno claim splitting!! iv. Haring v. Prosise: 1. Facts: after pleading guilty to a charge of manufacturing a controlled substance, Prosise filled a 1983 action against the police officers who had searched his apartment. The district court held this claim barred, but the Supreme Court disagreed. 2. Holding: the issue under 1738 was whether state law would regard the conviction as preclusive. Here, it would not, bc the fourth amendment claim was not litigated or resolved in the stat ecriminal prosecution. The only issue determined by the guilty plea was whether Prosise had manufactured a controlled substancewhich is irrelevant to 4tham issue

G. Civil Rights Actions Against Federal Officers

a. Federal Officers are not ordinarily suable under 1983 but the Supreme Ct has instead created an implied right of action for damages directly under the Constiution and the general federal question statute--1331 b. Bivens v. Six Unknown Officers p. 60-9 i. Facts: Petitioner's complaint alleged that respondent agents of the

Federal Bureau of Narcotics, acting under color of federal authority, made

a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause.
ii. Issue: whether federal agents can be sued for constiutioal violations iii. Holding: YesPetitioner's complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment iv. For Bivens, the Court noted, the remedy was damages or nothing. There would not have been any vindication of rights through the exclusionary rule, a common remedy for 4th amendment violations, because no charges are pending against Bivens. The Court also observed that no Congressional legislation curtailed money damages for violations of Constitutional rights, nor had it imposed any other remedy; Finally, it did not find any "special factors counseling hesitation" in this case. For all of these reasons, Bivens was allowed the right to recover from the Federal government, if he proved his case. c. Davis v. Passman p69 i. Facts: administrative assistant to congressman alleged dismissal because of sex ii. Relying on Bivens, the Court reversed the lower court's conclusions. Both cases affirmed a citizen's right to bring suit against federal officers for constitutional violations. In this case, Passman violated Davis's rights through EPA of fifthamendment-sexual discrimination. d. Carlson v. Green p. 69 i. SC again upheld Bivens action permitting the plt to sue on behalf of the estate of her deceased son for damages under the 8tham. She alleged that federal prison officials caused the sons death by failing to provide adequate medical attention ii. Ct noted that there were two instances when Bivens can be foreclosed: 1. special factors counseling hesitation in the absence of affirmative action by Congress; or 2. Where congress created an alternative remedial structure e. Bush v. Lucas p69-71 i. AN alternative remedial action foreclosed Bivens action

ii. Facts: Bush, an aerospace engineer at the George C. Marshall Space Flight Center (Center), a facility operated by the National Aeronautics and Space Administration (NASA), made a series of public comments critical of the Center. Lucas, the Center_s director, demoted Bush on the ground that the comments were false and misleading. The Federal Employee Appeals Authority upheld the demotion, but the Civil Service Commission_s (CSC) Appeals Review Board later found that the demotion had violated his First Amendment rights. NASA accepted the Board_s recommendation that Bush be restored to his former position retroactively, with back pay. While his administrated appeal was pending, Bush brought suit against

iii.

iv.

v. vi. vii.
f.

Lucas in Alabama state court, seeking to recover damages for violation of his First Amendment rights. Lucas removed the action to federal district court, which granted summary judgment for Lucas. The Fifth Circuit affirmed, holding that Bush had no cause of action for damages under the First Amendment in view of the available remedies under the CSC regulations. Issue: Can a federal employee sue for damages for the violation of his First Amendment rights by his superior where Congress has provided a comprehensive remedial scheme, although one which does not fully compensate the employee for the harm suffered? Holding: No; not under the CSC regulations. The federal judiciary, pursuant to its common law authority, has the power to recognize new causes of action in absence of, or to supplement, statutory remedies unless Congress has expressly indicated its relief is to be exclusive. In determining whether judicial relief should be granted, federal courts are (1) to pay particular attention to special factors counseling hesitation in the absence of affirmative action by Congress, and (2) to ascertain whether the purpose and comprehensive nature of the statutory scheme precludes judicial remedies where statutory relief is available. The administrative scheme in this case reflected Congress_ attempt to balance the competing interests of protecting the First Amendment rights of federal employees and maintaining a disciplined and effective workforce. Congress, not the judiciary, is in the best position to regulate the employee relations. Grant of supplementary judicial relief would disrupt this balance and is therefore inappropriate. NOTE: this case is similar to Sea Clammers case in 1983 action b/c theres already a remedy in placestatute provides remedial scheme Where Congress has provided a remedy that will provide meanigful relief, it is enough ***THERE IS NO SUCH THING AS A BIVEN ACTION TO ENFORCE A STATUTORY RIGHT!!**

Correctional Svc Corp v. Malesko p71-73 i. Facts: prisoner in fed prison had heart condition and exempt from taking steps. One day he was forced to, and had a heart attack. He filed an 8tham violation ii. Issue: Should the implied private action for damages against federal

officers alleged to have violated a citizen's constitutional rights, first recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, be extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons? iii. Holding: No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that Bivens' limited holding may not be extended to confer a right of action for damages against private entities acting under color of federal law. The Court reasoned that the threat of suit against an individual's employer was not the kind of deterrence contemplated by the Bivens decision. The Court also noted that the purpose of the Bivens decision was to deter individual federal officers

from committing constitutional violations. "In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct. Where such circumstances are not present, we have consistently rejected invitations to extend
g. Wilkie v. Robbins: handout i. Facts: Harvey Robbins owned a private dude ranch which was

intermingled with federal lands. The previous owner had granted the Bureau of Land Management (BLM) right-of-way across the private land, but after Robbins bought the ranch he refused to re-grant it. Robbins alleged that BLM officials harassed him with threats and meritless criminal charges, with the aim of forcing him to grant the government right-of-way. Robbins sued the BLM officials for extortion in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). He also brought a Bivens action (an action seeking monetary damages from a federal agent for a constitutional violation). Robbins argued that the Fifth Amendment protects a "right to exclude" government officials from one's property, and that the BLM agents had retaliated against him for his exercise of this right. ii. Issues: 1) Can government officials acting pursuant to their regulatory authority be guilty of extortion under the Racketeer Influenced and Corrupt Organizations Act (RICO) for attempting to obtain property for the benefit of the government? 2) Is a Bivens claim based on Fifth Amendment rights precluded by the availability of judicial review under the Administrative Procedure Act? 3) Does the Fifth Amendment protect against retaliation for exercising a "right to exclude" the government from one's property? iii. Holding: No, unanswered, and no. The Court ruled 7-2 that "neither Bivens nor RICO gives Robbins a cause of action," so he could not sue the government for retaliation. In an opinion by Justice David Souter, the Court declined to extend the availability of Bivens actions to cases of retaliation for the exercise of the right to exclude the government from one's property. The Court noted that Robbins had other administrative and judicial remedies for the government's various violations, though it acknowledged that these amounted to a difficult-to-use "patchwork." Because of the impossibly of devising a framework to separate constitutional violations from government actions that are merely borderline improper, the Court would not add a Bivens remedy to landowners' toolkit. The government can be expected to engage in some hardball tactics during land negotiations, the majority held, and inviting an "onslaught of Bivens actions" in an effort to counter the occasional overreach would be a "cure [...] worse than the disease." Robbins's RICO claim failed as well, because extortion has not normally been understood to encompass the actions of government officials seeking to obtain

property for the government rather than for themselves. The Court called the cases that Robbins cited in favor of his claim obscure and off-point.
h. Special Factors: i. It would cost a lot ii. Against public policy iii. Would mess up the scheme of things iv. Separation of powers issues v. Military; Stanleygiven LSDct said there were special factors here vi. FDIC v. Meyerno such thing as entity liability bc it would be costly i. 3 THINGS WOULD PRECLUDE BIVENS AXN: i. Comprehensive remedial scheme ii. Special factors iii. Suing entity

H. Remedies For Constiutional Wrongs a. In order to recover more that nominal damages from a 1983 def, the victim of an unconstitutional injury must put on proof of actual injury i. Punitive damages are available against individual officers, but not local govts, and only when there has been reckless or callous indifference to constitutional rights, or when the def was motivated by bad intent ii. Compensatory damages: 1. The basic purpose of 1983 is to compensate people for injuries caused by the deprivation of constitutional rights a. Need to show harm; Carey casect said damages didnt exceed $1 (boy suspended for allegedly smoking marijuana, and ct found PDP violation) b. Put on proof of mental anguish, feelings of unjust treatment, humiliation, personal indignity c. MUST PUT ON PROOF OF ACTUAL INJURY b. Injunctions i. City of Los Angeles v. Lyons: 1. Facts: In 1976, police officers of the City of Los Angeles stopped Adolph Lyons for a traffic code violation. Although Lyons offered no resistance, the officers, without provocation, seized Lyons and applied a chokehold. The hold rendered Lyons unconscious and damaged his larynx. Along with damages against the officers, Lyons sought an injunction against the City barring the use of such control holds. 2. Issue: Did Lyons's injunction against the use of police chokeholds meet the threshold requirements imposed by Article III of the Constitution? 3. Holding: No. Court held that federal courts were without jurisdiction to entertain Lyons' claim for injunctive relief. The fact that Lyons had been choked once did nothing to establish "a real and immediate threat that he would again be stopped. . .by an officer who would illegally choke him into

unconsciousness." The Court held that in order to establish an actual controversy, Lyons would have to show either 1) that all Los Angeles police officers always choked citizens with whom they had encounters, or 2) that the City ordered or authorized officers to act in such a manner. Lyons was thus limited to suing the police and the city for individual damages. 4. Dissent: Whether Lyons can show that the Citys

chokehold policy is unconstitutional? Lyons claim for damages gives him standing to sue, success therein depends on his proving whether the conduct was unconstitutional. Standing under Article III is established by an allegation of threatened or actual injury. Lyons suffered an actual past injury, as the findings of the District Ct show. 5. **idk what the ct wanted him to showanother bs case!*
ii. Missouri v. Jenkins p872-94 1. Facts of the Case: In order to combat segregation in public schools in compliance with court directives, the Kansas City, Missouri School District (KCMSD) sought to enhance the quality of schools and to attract more white students from the suburbs. The KCMSD's ability to raise taxes, however, was limited by state law. After determining that the District did not have alternative means of raising revenue for the program, federal district judge Russell G. Clark ordered an increase of local property taxes for the 199192 fiscal year. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision, but ruled that the courts should enjoin state tax laws that prevented the District from raising the necessary funds and allow the state to set tax rates. 2. Question: Did the court order to increase property taxes violate Article III, the Tenth Amendment, or principles of federal/state comity? 3. Conclusion: The Court held that the District Court "abused its discretion" by imposing a specific tax increase. The Court also held, however, that the modifications of the District Court's order made by the Court of Appeals satisfied "equitable and constitutional principles governing the District Court's power...." The majority found that court orders directing local governments to levy their own taxes were "plainly" judicial acts within the powers of federal courts. When a constitutional justification existed, courts had the authority to order tax increases despite statutory limitations. The Court reasoned that "[t]o hold otherwise would fail to take account of the obligations of local governments, under the Supremacy Clause, to fulfill the requirements that the Constitution imposes on them." c. Damages i. Memphis Community School Dist v. Stachura p343 1. Facts: Respondent, a tenured teacher in the Memphis, Michigan,

public schools, was suspended following parents' complaints about

his teaching methods in a seventh-grade life science course that included the showing of allegedly sexually explicit pictures and films. While respondent was later reinstated, he, before being reinstated, brought suit in Federal District Court under 42 U.S.C. 1983 against petitioner School District, Board of Education, Board Members, school administrators, and parents, alleging that his suspension deprived him of liberty and property without due process of law and violated his First Amendment right to academic freedom. He sought both compensatory and punitive damages
2. Holding: Damages based on the abstract "value" or "importance" of constitutional rights are not a permissible element of compensatory damages in 1983 cases. a. The basic purpose of 1983 damages is "to compensate persons for injuries that are caused by the deprivation of constitutional rights." Carey v. Piphus, The instructions at issue cannot be squared with Carey, or with the principles of tort damages on which Carey and 1983 are grounded. Damages measured by the jury's perception of the abstract "importance" of a constitutional right are not necessary to vindicate the constitutional rights that 1983 protects, and moreover are an unwieldy tool for ensuring compliance with the Constitution. 3. (b) Since such damages are wholly divorced from any compensatory purpose, they cannot be justified as presumed damages, which are a substitute for ordinary compensatory damages, not a supplement for an award that fully compensates the alleged injury. ii. City of Newport v. Fact Concerts p. 371-80 1. Facts: Respondents (an organization licensed by petitioner city to present certain musical concerts, and a promoter of the concerts) brought suit in Federal District Court against the city and city officials. Alleging, inter alia, that the city's cancellation of the license amounted to a violation of their constitutional rights under color of.state law, respondents sought compensatory and punitive damages under 42 U.S.C. 183. Without objection, the court gave an instruction authorizing the jury to award punitive damages against each defendant, including the city. Verdicts were returned for respondents, which in addition to awarding compensatory damages, also awarded punitive damages against both the individual officials and the city. The city moved for a new trial, arguing for the first time that punitive damages could not be awarded against a municipality under 1983. Although noting that the challenge to the instruction was untimely under FRCP 51, the District Court considered and rejected the city's substantive legal arguments on their merits. The Court of Appeals affirmed, finding that the city's failure to object to the charge at trial, as required by Rule 51, could not be overlooked on the theory that the charge itself was plain error. The court also expressed a belief that the challenged instruction might not have been error at all, and

identified the "distinct possibility" that municipalities could be liable for punitive damages under 1983 in the proper circumstances. 2. ROL: Muncipalities are not subject to punitive damage awards, even when their officials act pursuant to official policy, and even when that policy shows callous or reckless indifference to constiutional rights 3. Holding: The city's failure to object to the charge at trial does not foreclose this Court from reviewing the punitive damages issue. Because the District Court adjudicated the merits, and the Court of Appeals did not disagree with that adjudication, no interests in fair and effective trial administration advanced by Rule 51 would be served if this Court refused to reach the merits. Nor should review here be limited to the restrictive "plain error" standard. The contours of municipal liability under 1983 are currently in a state of evolving definition and uncertainty, and the very novelty of the legal issue at stake counsels unconstricted review. In addition to being novel, the punitive damages question is also important, and appears likely to recur in 1983 litigation against municipalities.