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Civil Rights Litigation
Villanova University School of Law
Ravenell, Teressa E.

Civil Rights Litigation
Fall 2016
Bivens claim – Court-created cause of action against federal officials; much like a §1983 claim, except that its brought against federal official rather than state official
Bivens action elements:
Acting under color of federal law
Subjects or causes another to subject
Deprivation of federally protected rights
You can’t violate §1983; you violate the Constitution and through that you have a §1983 remedy
You’re not supposed to rely on SDP if the constitutional claim is covered by another constitutional provision
14th Am. SDP is more of like a catch-all à If you can’t file a claim under a specific constitutional provision, you can bring a SDP claim
Different Types of Claims:
Excessive Force Claims
Brought under 4th Amendment
Governed by objectively reasonable – negligence or reasonableness
Ask whether the officers are objectively reasonable considering the facts and circumstances confronting them without regard to their underlying intent or motivation
Fact specific inquiry
Brought Under 8th Amendment
If done in haste, controlled by malicious and sadistic standard
Otherwise controlled by deliberate indifference
Brought under 14th Amendment
Governed by “shocks the conscious” – intentional or malicious conduct
A fluid test because it changes with what the facts of the case are
Police chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to SDP liability
Prison Condition Claims
Brought under 8th Amendment
Show deprivation of basic need OR
There was a substantial risk of serious harm to health/safety
Brought under 14th Amendment
Changes in terms of confinement
Mistaken confinement or wrongful imprisonment
§1983 Elements
Every Person
Who is a person who can be sued?
Municipalities [Monell] Local governments
Individual employee of local or state government
Official capacity
Individual capacity
Who isn’t a person?
A State [Will v. Michigan Dept. of State Police]  
Under Color of Law
If you prove state action, you also proved the person acted under color of law
If you prove conduct under the color of law, you still must prove that there is a state actor or state action
Action under color of state law requires nothing more than the individual acting with the knowledge of and pursuant to that statute
How does a plaintiff prove state action and, accordingly, prove that the defendant acted under color of law? Ask:
What is the alleged deprivation and does it require state action?
Note: most constitutional deprivations require state action; 13th Am. is the only one that doesn’t require state action
Is D a private person or a government official?
If D is a private person, is the action taken “fairly attributable” to the state?
Lugar “fair attribution” test:
Was the deprivation caused by:
The exercise of some right or privilege created by the State?
By a rule of conduct imposed by the State?
By a person for whom the State is responsible?

ustom in question?
Written policy through formal legislative channels [Monell—policy made it mandatory for women to take maternity leave] Custom = unwritten policy
Single decision by an official with final policy making authority [Pembaur—municipality liable because prosecutor was an official with final policy making authority] Decision not to adopt new or different policy
Failure to train when the failure to adopt a new or different policy shows deliberate indifference to the persons with whom the officials come into contact [City of Canton v. Harris] A P may establish municipal liability for failure to train by showing an obvious risk
A P may establish municipal liability for failure to train by showing a pattern of constitutional violations
The pattern doesn’t need to be widespread; just enough that it puts officials on notice that a new policy should be adopted because this certain behavior is happening
What is the P’s alleged deprivation?
Did the policy result, direct, or cause the constitutional deprivation/unconstitutional behavior?
Ex. tells lower level worker to do something
NOTE: Be on the lookout for whether the policy gives discretion to a person—municipalities avoid liability by redirecting sole-decision making authority