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

Civil Rights Litigation


Spring 2011



a. Every Person, who

i. Under color of any statute, ordinance, customer, or usage, of

1. 14th Amendment – Requires State Action

a. “Nor shall any state deprive”

i. Must always have State Action under “Color of State Law”

ii. Congress has sufficient authority to act re what State Officials cannot do (deprive citizens of their rights)

ii. Any State

1. Cannot sue the State (Municipal Corporations) under 1983 (11th Amendment protects State itself) – but – anything that is: Gov’tmental w/in State Law and Draws its authority from the State

a. Local entities/subdivisions

b. State Officials

2. Cannot sue the US itself – but can sue federal official

3. Cannot sue State itself – but can use state official

4. Can sue a County – not the US/not under 11th Amend. Protection

5. Can sue Private Person acting under State Law

iii. Subjects, or causes to be subjected, any Citizen of the US or other person w/in the jurisdiction, the

1. US residents, unless re the Privileges and Immunities Clause (US citizen only)

iv. Deprivation of any rights, privileges, or immunities,

v. Secured by the Constitution and laws (Statutes)

1. 14th Amendment

a. Due Process

i. Substantive

1. Life – no strict scrutiny or rational basis

a. What duty standard to apply – state of mind

2. Liberty – whether there is a liberty interest

3. Property

ii. Procedural

1. Requirement for Procedural DP

2. Pre-deprivation – Notice and Hearing

3. Post-deprivation – State remedy – given by neutral and disinterested

b. Incorporated

i. 8th Amendment (State of Mind Matters) – Protects Detainees as well

1. Force

a. For no good reason

i. Subjective – Malicious/Sadistic

b. Necessary to establish wanton/willful

i. Use of force that is not considered – “de minimis” (small/minimal in difference)

ii. Requires more than just negligence

2. Conditions

a. Reasonable measure of safety

i. Food; Housing; Medical; Heat

b. Deliberately indifferent

i. (failure to respond/recklessness)

ii. Subjective – based on facts/circumstances as known

iii. Sufficiently Serious (Objective) level of deprivation

iv. Officer knew of risk – not should have known.

c. Equal Protection

i. Requires – INTENT (done for purposes of drawing a distinction)

1. Not just disparate impact (impacts people unequally but not intended)

2. 4th Amendment

a. Search

b. Seizure – “[A] Fourth Amendment seizure [occurs] …when there is a governmental termination of freedom of movement through means intentionally applied”

i. Deadly Force

ii. Excessive Force (intentional and effective)

1. If no intention of grabbing suspect – no seizure

3. 5th Amendment

a. Testifying against yourself

4. State Statutes

vi. Shall be liable to injured party in an action at law (allows monetary damages, suit in equity, or other proper form of redress.

b. Describes actions of the Ds – have to allege that they acted “under color of law”

i. Provides remedy where state law is inadequate

ii. Provides federal remedy where state remedy is not available (Monroe)

c. Definition of Person

i. A local or state gov’t EE

ii. A federal employee (under Bivens)

d. Definition of acting “Under Color of Law”

i. Acting as authorized by law

ii. Abusing authority of law (Monroe)


i. Monroe v. Pape – Color of State Law (overruled by Monell)

1. Narrow reading of 1983

2. Facts: Officers searched house w/o warrant and held him for 10 hours – deprived P of his liberty of Due Process – Official abuse of power

3. Holding: Even unauthorized acts come “under color of” State law

a. Requires two elements be met:

i. Under Color of State Law – D’s are police investing a murder – state officials doing their job (on duty) – acting w/in their scope of authority (violating 14th Amendment); and

ii. Deprivation of Rights (here – 4th Amendment (right against illegal searches and seizures) incorporated w/in Due Process clause of 14th Amendment)

b. Recognized an alternative to normal common law Torts – Constitutional Tort b/c it was a gov’t official.

4. Held an entity is NOT a person

a. Congress did not intend to hold municipalities liable

ii. Bivens (Federal Officers)

1. Narcotics search w/o probable search warrant – violations of 4th Amendment by Federal officers (unreasonable search/seizure)

2. Holding: 1983 is limited to those acting under State law

a. Bivens creates parallel to 1983 – applies to federal officers

i. Creates implied right of action for damages against Federal officers who deprived P of rights – brought in federal court where there is a federal question (1331)

1. If 1331 did not supply a remedy – Court has authority to design its own remedy

ii. There is federal subject matter – 4th Amendment

b. Sets up same Constitutional claim for damages against federal officers as Monroe did against state police officers

3. Current Bivens Action

a. Davis – recognized equal protection claim from 5th Amendment as Bivens action

b. Carlson – 8th Amendment applicable to Bivens action against federal prison officers

4. Non-Bivens Action

a. Chappell – military

b. Bush – federal employment issues (Federal civil servants)

c. Schweiker –

i. Where there is a statutory prohibition against relief sought – and where there is exclusive alternative statutory remedy available;

ii. Where case involves policy questions that received careful attn from Congress

5. Alternative to Bivens

a. Administrative Procedure Act (Agencies)

b. Federal Tort Claims Act – beneficial when goal is to get money


i. 1938 – Only for Acts taken under color of “any statute, ordinance, regulation, customer or usage” of any State

ii. 14th Amendment – No State Shall … “deprive any person of life, liberty, or property”

iii. Monroe – actions by State officers – violating State law – “under color of law”

1. Off-Duty Police Officers

a. If using police equipment and doing police business

b. Officer motivated by personal intention – misuses lawfully possessed authority to injure

c. Not ‘under color of’ – when police officer possess absolutely no authority

iv. US v. Price – “under


a. While State provides services for students at public expense – doesn’t make it exclusive province of State

3. If private entity is performing function which serves public – doesn’t make it State Action

a. The financial relationship btwn the school and State is that of a private contractor

4. West v. Atkins

a. Facts: State contracted w/surgeon to spend part-time seeing patients at State prison

b. Holding: Private party’s action attributable to State Action

i. State employment – public EE acts “under color”

1. Acting in official capacity; or

2. Exercising responsibility pursuant to State law

ii. Doctor – employed part-time by State – undertook duties in treating prisoner’s injury

1. Carrying out State’s constitutional obligation to care for its prisoners

2. 8th Amendment (free from cruel and unusual punishment) – failure to provide medical care w/deliberate indifference to prisoner’s serious medical needs

a. Prisoner cannot rely on own resources to get medical attn

5. Brentwood Academy v. Tenn

a. Association governing high school athletics treated as state actor

i. Enforcing a rule against a member school

ii. Single State Association represented by school principal

1. Public school officials act w/in scope of their duties when they represent their institutions

2. Board meetings held during official school hours

3. Financial support provided by public schools

4. School officials control and perform majority of functions

b. Close Nexus btwn the State and challenged action

i. State provides significant encouragement

ii. Private actor operates as willful participant in joint activity

iii. Controlled by agency of the State

iv. Gov’t is entwined in its management and control

v. Organized under law to attain gov’t objectives

iv. Public Actor treated as Private Actors

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

a. Security Guard (off-duty police officer)

2. Polk v. Dodson

a. Public Defender not under color of state law – even though employed by State – more like private client-attny relationship

i. Professional independence from State

ii. Does not act on behalf of State

v. Four factors in deciding whether private actor was engaged in state action

a. Entity’s source of funding

b. How extensively it is regulated by the state

c. Whether there is a symbiotic relationship btwn state and entity

d. Whether it performs a traditionally gov’tmental function