Framework of Analysis: Bivens, Ex parte Young, and Section 1983 Flashcards
1
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Framework of Analysis: Bivens, Ex parte Young, and Section 1983
OVERVIEW
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SEE HANDWRITTEN CHART
2
Q
When using Bivens, Ex parte Young, and Section 1983
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You are suing a federal or state (perhaps to get around the Eleventh Amendment state sovereign immunity bar) government official.
3
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Analysis for Bivens and §1983
OVERVIEW
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- Is the official a federal, state, or local official (can also be muni at local level)? AKA CAN YOU SUE THIS PERSON AND IF SO, HOW WILL YOU DO IT?
a. FEDERAL, then BIVENS claim. *NOTE: this is an IMPLIED CAUSE OF ACTION.
b. STATE, then EX PARTE YOUNG claim under §1983 but only for INJUNCTIVE RELIEF (not damages). Here, the STATE is LIABLE.
c. LOCAL OFFICIAL/MUNICIPALITY, then MONELL claim under §1983. Note: this is an EXPRESS COA. - Is the right protected by a federal statute or the Constitution? AKA WHAT ARE YOU SUING THEM FOR AND CAN YOU DO THIS?
4
Q
Analysis for Bivens and §1983
- Is the official a federal, state, or local official (can also be muni at local level)? AKA CAN YOU SUE THIS PERSON AND IF SO, HOW WILL YOU DO IT?
a. FEDERAL, then BIVENS claim. Note: this is an IMPLIED COA.
A
FEDERAL, then BIVENS claim. Note: this is an IMPLIED COA.
- Suing for violating rights protected by Constitution: Congress can typically create a federal COA UNLESS there are special factors counseling hesitation, which include…
i. Question of federal fiscal policy
ii. D has not violated specific constitutional right, but federal employee who acts outside the scope of his/her constitutional authority
- NO vicarious liability suit against federal agency or supervising officer
iii. Design of government program suggests Congress has provided “adequate” remedial mechanisms
- If partial relief is available, it may be interpreted that Congress intended it to be the full remedy-a comprehensive scheme.
iiii. Constitutional violation associated with military service - If plaintiff seeks damages for 8A violation against privately employed person working at privately operated federal prison, plaintiff must seek remedy under state tort law—NO BIVENS. See Minneci v. Pollard.
- Private party can be sued if they are found to have acted “under color of law” (NOT same as state action 14A requirement because if person acted in personal capacity, can still be sued under “color of law”).
i. See Adickes v. Kress (Court has held that certain government-created corporations act under color of law. If the defendant’s conduct is attributable to the government, then you can be said to be acting under color of law).
5
Q
Analysis for Bivens and §1983
- Is the official a federal, state, or local official (can also be muni at local level)? AKA CAN YOU SUE THIS PERSON AND IF SO, HOW WILL YOU DO IT?
b. STATE, then EX PARTE YOUNG claim under §1983 but only for INJUNCTIVE RELIEF (not damages). Here, the STATE is LIABLE.
A
STATE, then EX PARTE YOUNG claim under §1983 but only for INJUNCTIVE RELIEF (not damages). Here, the STATE is LIABLE.
- Ex parte Young (the king can do no wrong, state officials are stripped of their official state capacity when violating the Constitution).
i. But state officials can be state actors for 14A purposes, but are “stripped” of official state capacity for 11A purposes. - State officials CAN be sued in FEDERAL COURT, but only for PROSPECTIVE equitable relief, not retroactive damages.
i. See Edelman v. Jordan (11A SSI bar applies only to suits seeking future relief such as injunctions, SSI still applies when suits seek monetary damages such as restitution for past benefits rightly owed).
ii. But see Milliken v. Bradley (remedy to desegregate schools that required schools to implement a series of programs to “wipe” out continuing conditions of inequality is prospective relief even though compensatory in nature). - State officials CANNOT be sued on STATE LAW grounds.
i. See Pennhurst State School & Hospital v. Halderman (11A bars federal court plaintiffs from asserting state law violations against state officials).
ii. Note: the logic of Ex parte Young requires that state officials be stripped of their immunity when violating federal constitutional law because the Supremacy Clause prevents states from enabling officials to violate federal law, but if the state official is acting on the basis of state law, then Supremacy Clause logic does not apply. In other words, suing state officials for violations of state law runs afoul of SSI. Federal system does not need to create an exception because no federal interest in enforcing state law.
* Exception: 11A bar extends to local government where there is SO MUCH STATE involvement in municipalities’ actions that relief sought is essentially against the state. Relief against county and state officer barred by 11A: county’s money came from state so state funding of county program created 11A bar. - State officials CANNOT assert qualified immunity when sued under Ex parte Young theory because still being sued in OFFICIAL capacity and qualified immunity only available when sued in PERSONAL/INDIVIDUAL capacity.
i. See Hafer v. Melo (state officials can be sued in their individual capacities and MAY be liable for DAMAGES under §1983). - Again, CANNOT use Ex parte Young theory under §1983 for DAMAGES because they are protected by SSI.
i. Will v. Michigan (can sue state officials under §1983 when sued in their official capacities for prospective relief but NOT DAMAGES).
6
Q
Analysis for Bivens and §1983
- Is the official a federal, state, or local official (can also be muni at local level)? AKA CAN YOU SUE THIS PERSON AND IF SO, HOW WILL YOU DO IT?
c. LOCAL OFFICIAL/MUNICIPALITY, then MONELL claim under §1983. Note: this is an EXPRESS COA.
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LOCAL OFFICIAL/MUNICIPALITY, then MONELL claim under §1983. Note: this is an EXPRESS COA.
- Plaintiff can sue for DAMAGES or INJUNCTIVE RELIEF if CUSTOM or POLICY violates plaintiff’s right. See LA County v. Humphries (Monell covers damages and injunctive/declaratory relief, but no punitive damages for municipalities). *No punis for munis!
i. Board ADOPTS LEGISLATION
- See Monell (REGULATIONS ADOPTED by the city DSS and Board of Education requiring pregnant employees to take unpaid leaves and applied to specific individuals involved officials).
ii. FINAL DECISION
- See Pembaur v. City of Cincinnati (county could be liable for the single decision of a prosecutor authorizing law enforcement officers to make unconstitutional entry into doctor’s clinic because final decisionmaker).
* But see City of St. Louis v. Praprotnik (refused to hold city liable for alleged 1A violations that occurred when two senior supervisors transferred subordinate to less attractive job, only mayor and other select officials had policymaking authority over personnel but no adopted policy that caused constitutional violation).
iii. FAILURE TO TRAIN
- NO VICARIOUS LIABILITY in §1983 claim, cannot sue supervisory officials for actions of their subordinates. See Ashcroft v. Iqbal.
- MUST BE DELIBERATE INDIFFERENCE on part of municipality. See Canton (in order to demonstrate a policy of inadequate training, plaintiff must prove that the local government acted with deliberate indifference).
- Deliberate indifference must have CAUSED the particular INJURY suffered. See Board of Commissioners v. Brown (rigorous standard of culpability and causation for the case, so single instance of inadequate screening of officer insufficient to establish liability because liability would depend on “finding that the officer was highly likely to inflict the particular injury suffered by plaintiff”).
- Must be a STRONG REPEATED SIMILAR PATTERN for liability. See Connick v. Thompson (repeated failure to disclose Brady material does not establish unconstitutional failure to train case unless pattern of violations are similar).
* FAILURE TO TRAIN IS VERY HARD TO ESTABLISH
7
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Analysis for Bivens and §1983
- Is the right protected by a federal statute or the Constitution? AKA WHAT ARE YOU SUING THEM FOR AND CAN YOU DO THIS?
FEDERAL STATUTE
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Is the right protected by a federal statute or the Constitution? AKA WHAT ARE YOU SUING THEM FOR AND CAN YOU DO THIS?
FEDERAL STATUTE: Congress creates private COA creates to help enforce the statute and incentivize potential defendants to comply with the laws, but must be established in CLEAR and UNAMBIGUOUS terms.
i. See Pennhurst (statute creates enforceable right for purposes of §1983 only if Congress created a right in clear and unambiguous terms).
ii. Court may imply statutory COA for money damages if meets 4 factor test (Cort v. Ash):
a. Is P one of a class for whose especial benefit the statute was enacted? Look at language of statute itself
b. Is there an indication of legislative intent (explicit or implicit) either to create or deny a remedy?
c. Would remedy be consistent with underlying purpose of the legislation?
d. Is this area traditionally relegated to state law?
8
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Analysis for Bivens and §1983
- Is the right protected by a federal statute or the Constitution? AKA WHAT ARE YOU SUING THEM FOR AND CAN YOU DO THIS?
CONSTITUTION
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Is the right protected by a federal statute or the Constitution? AKA WHAT ARE YOU SUING THEM FOR AND CAN YOU DO THIS?
CONSTITUTION: typically protects plaintiff from and provides remedy for plaintiff from state and local violations of the Constitution as long as there is NO ALTERNATIVE state law remedy (i.e. state tort law).
i. If BIVENS claim, then make sure no alternative state law remedies
ii. If s1983 claim, then make sure
a. No alternative state remedies such as torts under existing state tort law. See Frankfurter’s Monroe dissent (§1983 only allowed when state remedies, such as state tort law, are unavailable); AND
b. There is requisite intentional and authorized acts of official (Monell) to bring 14A violation claim under 1983
