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Civil Rights Litigation
University of Nebraska School of Law
Kirst, Roger W.


1. Two Elements for 1983 must be met

a. Deprivation of P’s rights

b. State Action – “Under Color of”

i. Eligible to be Sued

1. Local entities;

2. Political subdivisions;

3. State officials;

a. Unauthorized acts come under color of state law Monroe

i. Requires two elements: (1) under color of state law and (2) deprivation rights

1. Under authority of state; or

2. Abusing authority of state

4. Private persons acting under State law;

a. Willful participants in joint activity with the state or its agents

i. Public function test: Entity exercises powers traditionally reserved to the State

ii. State compulsion test: A State has “exercised such coercive power or has provided such significant encouragement (Blum)

1. Source of Funding

2. Extent its regulated by State

iii. Nexus test: A symbiotic relationship or “nexus” exists between the entity and the State such that the action of the entity is really that of the State

b. Examples

i. Private use of state law to secure property Lugar

1. Ds were private parties but committed a state action by denying P his procedural DP

2. They invoked an unconstitutional statute which the state itself created a procedural scheme that was constitutionally inadequate

3. However – if D just misuse or abuses state statute that is constitutionally correct- no claim

ii. Charter Schools

1. Rendell-Baker

a. If conduct fulfills a public function of state

i. Exclusive privilege of state

b. Income derived from public sources

i. More like private contractor?

c. Regulated by public authorities

d. Conduct made on basis of some rule for which state is responsible for

2. Brentwood Academy – High school Assoc.

a. Close nexus btwn state and challenged action

b. State provides significant management and control

c. Organized under law to attain gov’t objectives

d. Controlled by agency of the state

iii. Private Prison Guards

iv. An off-duty sheriff’s deputy working as a security guard in a department store (Chapman)

v. Commercially leased restaurant in state owned parking building Burton

1. Symbiotic relationship btwn state and private party

2. Look to degree of state participation and involvement

vi. Part-Time Prison Doctor West

1. Doctor was state EE part-time – under color

a. Acting in official capacity

b. Exercising responsibility pursuant to state law

c. Treated prisoners pursuant to 8th amendment – failure to provide medical care w/deliberate indifference

vii. Off-Duty Police Officers

1. If using police equipment and doing police business

2. If officer is motivated by personal intention but misuses lawfully possessed authority to injure

5. Private Actions Not Under Color of State Law

a. Reporting a crime

i. Or files a complaint is generally acting as a private person and not under color of state law, however Guest mentions that filing false reports in connection with agents of the State could make them state actors

b. Public Actors Treated as Private

i. When actions unrelated to official duties and outside boundaries of job

ii. Public Defender Polk

1. Private client-attny relationship

2. Professional independence from State

6. Federal official (Bivens)

a. Creates a parallel to 1983 and applies to federal officers

i. Creates implied right of action for damages against federal officers who deprived P of rights

ii. Brought in federal court

iii. Sets up same constitutional claim for damages against federal officers as Monroe did

b. Non-Bivens Actions

i. Military Chappel

ii. Federal employment issues Bush

iii. Where there is a statutory prohibition against relief sough Scweiker

2. 14th Amendment Due Process

a. Life Interest

i. Prison Misconduct Sandin

1. Limited to freedom from restraint which imposes atypical and significant hardship on inmate in relation to ordinary incidents of prison life

2. However – discipline by prison officials in response to wide range of misconduct falls within accepted parameters of sentence imposed by court

b. Liberty Interest

i. Reputation/Good Name alone is not a liberty interest (Defamation) Paul v. Davis

1. No present guarantee of present enjoyment of reputation

ii. Good Name in EE context Roth

1. When your name comes up in context of you being fired à constitutional right to clear your name via a hearing

2. However – if ER did not mention why they fired EE – no violation of liberty interest

iii. Failure of state or local gov’t to provide w/adequate protection DeShaney (Social Workers)

1. No liberty interest – no obligation for gov’t to protect

t doesn’t prove there was intentional discrimination

b. Class of One (Village of Willowbrook) Recognized by SC

i. P must allege

1. Intentionally treated differently from others similarly situated; and

2. No rational basis for the difference in treatment

a. Safety concerns by council/City officials is rational

ii. Restricted from use in public employment cases (Enqquist)

1. So long as the gov’t was acting as your employer and not sovereign

c. Racial hostility or religious bias are each sufficient to show an equal protection violation

i. Irrational and arbitrary malice inflicted

4. First Amendment Claims

a. Public Employee Speech

i. When public EE speaks not as a citizen upon matters of public concern, but as an EE à no claim (Connick)

1. Determine whether speech touched on matters of public concern

ii. If EE goes outside of employment context and speaks on subject w/nothing to do w/employment à claim (Pickering)

1. EE making statements pursuant to official duties à not protected by 1st Amendment (Garcetti)

b. Protests

i. Protesting in a public area in a nonthreatening manner à no grounds for an arrest

5. Incorporated (Against States) Due Process – 8th Amendment

a. Unusual/Cruel Punishment – Prisoner Civil Rights Claims

i. Force

1. Malicious Intent – necessary to establish wanton/willful

a. Use of force that is not de minimis (minimal)

b. Requires more than just negligence

ii. Conditions Farmer

1. Required to give reasonable measure of safety

a. Food, housing, medical, heat

2. Requires Deliberate Indifference

a. Failure to respond / recklessness

i. Officer knew of risk; not should have known

ii. Awareness of the risk – actual knowledge

iii. Conscious disregard of the risk

b. Subjective – Based on facts/circumstances

c. Objective – sufficiently serious level of deprivation