United States Court of Appeals for the Ninth Circuit
Office of Staff Attorneys

 

 

 

 

 

 

 

 

 

 

 

Section 1983 Outline

 

Updated 2015

 

Office of Staff Attorneys

United States Court of Appeals

for the Ninth Circuit

 

This outline is not intended to express the views or opinions of the Ninth Circuit, and it may not be cited to or by the courts of this circuit.


 

ACKNOWLEDGMENTS

Originally written in 2002 by Kent Brintnall.  Updated by the Office of Staff Attorneys.

Many thanks to the staff attorneys and others who have reviewed sections of this outline, and have contributed valuable comments and corrections.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Corrections and comments should be e-mailed to Jennifer Hendershot at jennifer_hendershot@ca9.uscourts.gov.


Table of Contents

I.        GENERAL § 1983 PRINCIPLES. 1

A.    Elements of a § 1983 Action. 1

1.    Person. 2

a.       States. 2

b.       Territories. 2

c.        Local Governmental Units. 2

(1)         Status as Persons. 2

(2)         Theory of Liability. 3

(a)     Municipal Policy. 4

(b)     Municipal Custom.. 5

(c)     Municipality’s Failure to Train. 6

(d)     Pleading Standard. 7

d.       Agencies. 8

e.        State Officials. 9

(1)         Official Capacity. 9

(2)         Personal Capacity. 10

(3)         Determining Capacity. 10

f.        Federal Officials. 11

2.    Acting under Color of State Law.. 11

a.       General Principles. 11

b.       Applications. 12

(1)         State Employees. 12

(2)         Prison Officials. 12

(3)         Prison Physicians. 13

(4)         Public Defenders. 13

(5)         Private Parties. 14

(6)         Federal Employees. 15

3.    Deprivation of a Right 15

a.       Rights Guaranteed by the Constitution. 15

b.       Rights Guaranteed by Federal Statutes. 15

c.        Rights Guaranteed by State Law.. 17

B.     State-of-Mind Requirement 17

C.     Causation. 17

1.    General Principles. 17

2.    Supervisory Liability. 18

3.    Local Governmental Unit Liability. 19

4.    Relationship to Relief Sought 19

5.    Pleading Standards. 19

D.    Immunities. 20

1.    Absolute Immunity. 20

a.       Basic Principles. 20

(1)         Determining Eligibility for Absolute Immunity. 20

(2)         Burden of Proof Regarding Eligibility for Absolute Immunity. 21

(3)         Effect of Absolute Immunity. 21

(4)         Application to Bivens Actions. 21

b.       Judicial Immunity. 21

(1)         Basic Principles. 21

(2)         Eligibility. 22

(a)     Judges. 22

(b)     Magistrate Judges. 23

(c)     Administrative Agency Hearing Officers. 24

(d)     Court Mediators. 24

(e)     Court-Appointed Psychiatrists. 24

(f)     Court Employees. 24

(g)     Parole Board Officials. 24

(h)     Probation Officers / Parole Officers. 25

c.        Prosecutorial Immunity. 26

(1)         Basic Principles. 26

(2)         Eligibility. 29

(a)     Attorneys. 29

(b)     Agency Officials. 29

(c)     Social Workers. 29

d.       Presidential Immunity. 30

e.        Legislative Immunity. 30

f.        Witness Immunity. 31

g.       Ineligibility. 31

(1)         Local Governmental Units. 31

(2)         Prison Officials. 31

(3)         Defense Counsel 32

(4)         Police Officers. 32

(5)         Court Reporters. 32

(6)         Executive Officials. 32

2.    Qualified Immunity. 33

a.       Basic Principles. 33

(1)         Eligibility. 33

(a)     Identifying the Right 35

(b)     Clearly Established Right 36

(2)         Ineligibility. 38

(a)     Local Governmental Units. 38

(b)     Municipal Employees. 38

(c)     Private Individuals. 38

b.       Pleading:  Plaintiff’s Allegations. 39

c.        Pleading:  Affirmative Defense. 39

d.       Burdens of Proof 40

e.        Discovery. 40

f.        Dismissal 41

g.       Summary Judgment 41

h.       Interlocutory Appeals. 41

3.    Eleventh Amendment Immunity. 42

a.       Basic Principles. 43

b.       Inapplicability of Amendment 44

(1)         Local Governmental Units. 44

(2)         State Officials. 44

(a)     Official Capacity. 44

(b)     Personal Capacity. 45

c.        Abrogation. 45

d.       Waiver 46

e.        Violations of State Law.. 47

f.        Burden of Proof 47

g.       Interlocutory Appeals. 47

E.    Remedies. 47

1.    Damages. 47

a.       Compensatory. 47

b.       Punitive. 48

c.        Presumed. 49

d.       Nominal 49

2.    Injunctive Relief 50

a.       Law Prior to Enactment of the Prison Litigation Reform Act 50

b.       Law after Enactment of the Prison Litigation Reform Act 51

3.    Declaratory Relief 52

F.     Exhaustion of Remedies. 52

1.    State Remedies. 52

2.    Prison Administrative Remedies. 53

G.    Statute of Limitations. 56

1.    General Principles. 56

2.    States’ Personal-Injury Statutes of Limitations. 58

3.    Dismissal 59

H.    Attorney’s Fees. 60

1.    Prison Litigation Reform Act (42 U.S.C. § 1997e(d)) 60

2.    42 U.S.C. § 1988. 60

a.       General Principles. 60

b.       Determining when a Plaintiff is a “Prevailing Party”. 61

c.        Determining the Amount of the Fee Award. 63

d.       Awarding Attorney’s Fees to Defendants. 65

e.        Awarding Attorney’s Fees to Pro Se Litigants. 66

f.        Immunity and Fee Awards. 66

g.       Other Work Entitling Attorney to Fees. 66

3.    Equal Access to Justice Act (28 U.S.C. § 2412) 66

I.       Costs. 67

J.      Relationship to Habeas Corpus Proceedings. 68

K.    Bivens Actions. 72

II.      PROCEDURAL ISSUES CONCERNING PRO SE COMPLAINTS. 74

A.    General Considerations. 74

1.    Pleadings. 74

a.       Liberal Construction. 74

b.       Exceptions. 74

(1)         Heightened Pleading Requirements. 74

(2)         Procedural Rules. 76

2.    Time Limits. 76

3.    Representing Others. 78

4.    Competency Hearings. 78

5.    Presence at Hearings. 78

B.     Processing and Resolving Cases. 79

1.    Applications for In Forma Pauperis Status. 79

a.       Application Requirements (28 U.S.C. § 1915(a)) 79

b.       Evaluation of Application. 79

c.        Payment of Fee (28 U.S.C. § 1915(b)-(c)) 80

d.       Prior Litigation History (28 U.S.C. § 1915(g)) 81

e.        Accompanying Rights. 81

(1)        Service of Process (28 U.S.C. § 1915(d)) 81

(2)         Appointment of Counsel (28 U.S.C. § 1915(e)(1)) 82

2.    Screening of Complaints (28 U.S.C. § 1915A) 83

3.    Frivolousness (28 U.S.C. § 1915(e)(2)(B)(i)) 83

a.       Sua Sponte Dismissal 83

b.       Standard. 84

c.        Leave to Amend. 84

d.       Review on Appeal 85

4.    Failure to State a Claim (28 U.S.C. § 1915(e)(2)(B)(ii)) 85

a.       Sua Sponte Dismissal 85

b.       Standard. 86

c.        Materials to be Considered. 86

d.       Leave to Amend. 87

e.        Effect of Amendment 87

f.        Review on Appeal 88

5.    Summary Judgment (Fed. R. Civ. P. 56) 88

a.       Sua Sponte Entry of Summary Judgment 88

b.       Standard. 88

c.        Informing Pro Se Litigants about Summary Judgment Requirements. 90

d.       Materials Submitted in Opposition to Summary Judgment Motion. 92

e.        Conversion of Motion to Dismiss. 93

f.        Requests for Additional Discovery Prior to Summary Judgment (Fed. R. Civ. P. 56(d)) 94

g.       Local Rules Concerning Summary Judgment 95

h.       Review on Appeal 95

6.    Other Kinds of Dismissal 95

a.       Subject-matter Jurisdiction. 95

b.       Personal Jurisdiction. 96

c.        Service of Process (Fed. R. Civ. P. 4(m)) 96

d.       Short and Plain Statement (Fed. R. Civ. P. 8(a)) 97

e.        Voluntary Dismissal (Fed. R. Civ. P. 41(a)) 97

f.        Involuntary Dismissal (Fed. R. Civ. P. 41(b)) 98

g.       Default Judgments (Fed. R. Civ. P. 55(b)) 100

C.     Disciplining Pro Se Litigants. 100

1.    Vexatious Litigant Orders. 100

2.    Sanctions. 101

D.    Using Magistrate Judges. 101

E.     Recusal/Disqualification of Judges. 104

F.     Considerations on Appeal 105

1.    Granting In Forma Pauperis Status. 105

2.    Appointment of Counsel 105

3.    Transcripts. 105

III.    ANALYSIS OF SUBSTANTIVE LAW... 107

A.    Constitutional Claims. 107

1.    First Amendment 108

a.       Speech Claims. 108

(1)         General Principles. 108

(2)         Applications. 110

(a)     Personal Correspondence. 110

(b)     Legal Correspondence. 111

(c)     Publications. 111

(d)     Telephones. 113

(e)     Access to Media. 113

(f)     Associational Rights. 113

(g)     Jailhouse Lawyers. 114

(h)     Prison Grievances. 114

b.       Religion Claims. 114

(1)         Free Exercise Clause. 114

(2)         Religious Freedom Restoration Act (42 U.S.C §§ 2000bb to 2000bb-4); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc -5. 117

2.    Fourth Amendment 119

a.       General Principles. 119

b.       Cell Searches. 120

c.        Body Searches. 120

d.       Phone-Call Monitoring. 121

3.    Eighth Amendment 122

a.       General Principles. 122

b.       Safety. 124

c.        Medical Needs. 126

(1)         General Principles. 126

(2)         Denial of, Delay of, or Interference with Treatment 127

(3)         Qualified Medical Personnel 128

(4)         Informing Medical Personnel of Medical Problems. 129

(5)         Negligence/Medical Malpractice. 129

(6)         Difference of Opinion about Medical Treatment 129

(7)         Fees for Medical Services. 130

(8)         Transfers. 130

d.       Conditions of Confinement 131

(1)         General Principles. 131

(2)         Specific Conditions. 132

(a)     Crowding. 132

(b)     Sanitation. 132

(c)     Food. 132

(d)     Noise. 132

(e)     Exercise. 133

(f)     Vocational and Rehabilitative Programs. 133

(g)     Temperature of Cells. 134

(h)     Ventilation. 134

(i)     Lighting. 134

(j)     Environmental Tobacco Smoke. 134

(k)     Asbestos. 135

(l)     Personal Hygiene. 135

(m)     Clothing. 135

(n)     Searches. 135

(o)     Verbal Harassment 135

(p)    Safety Cell 136

e.        Excessive Force. 136

f.        Capital Punishment 137

4.    Fourteenth Amendment 137

a.       Equal Protection Claims. 137

b.       Procedural Due Process Claims. 138

(1)         Defining Liberty Interests. 138

(a)     Interests Protected by the Constitution. 139

(b)     Interests Protected by State Law.. 139

(2)         Defining Property Interests. 141

(3)         Procedural Guarantees. 142

(a)     Administrative Segregation. 142

(b)     Disciplinary Hearings. 144

(4)         Effect of State Remedies. 145

(5)         State-of-Mind Requirement 146

c.        Substantive Due Process Claims. 147

d.       Vagueness Claims. 147

5.    Access to Court Claims. 147

6.    Miscellaneous Constitutional Claims. 149

a.       Classification. 149

b.       Transfers. 150

c.        Visitation. 150

d.       Verbal Harassment 151

e.        Vocational and Rehabilitative Programs. 151

f.        Right to Marry/Procreate. 152

g.       Takings. 152

B.     Statutory Claims. 152

1.    42 U.S.C. § 1981. 152

2.    42 U.S.C. § 1985(3) 152

3.    42 U.S.C. § 1986. 153

4.    Religious Freedom Restoration Act (42 U.S.C §§ 2000bb to 2000bb-4); Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to 2000cc -5  154

5.    Fair Labor Standards Act (29 U.S.C. §§ 201-19) 154

6.    Rehabilitation Act ( 29 U.S.C. §§ 701-97b); Americans with Disabilities Act (42 U.S.C. §§ 12101-12213) 154

7.    Title VII (42 U.S.C. §§ 2000e to 2000e-17) 155

8.    Title IX (20 U.S.C. §§ 1681-88) 155

9.    Federal Tort Claims Act (28 U.S.C. §§ 2671-2680) 155

C.     Parole/Probation. 156

D.    Rights of Pretrial Detainees. 159

IV.    PRISON LITIGATION REFORM ACT. 162

A.    Application of the In Forma Pauperis Provisions (28 U.S.C. §§ 1915 & 1915A) 162

B.     Fee Provisions (28 U.S.C. § 1915(a)(2)-(3), (b)) 163

C.     Procedural Aspects of §§ 1915 and 1915A.. 166

D.    Three-Strikes Provision (28 U.S.C. § 1915(g)) 167

E.     Exhaustion Requirement (42 U.S.C. § 1997e(a)) 168

F.     Physical-Injury Requirement (42 U.S.C. § 1997e(e)) 170

G.    Injunctive Relief (18 U.S.C. § 3626) 170

H.    Special Masters (18 U.S.C. § 3626(f)) 171

I.       Attorney’s Fees (42 U.S.C. § 1997e(d)) 171

 

                  



I.       GENERAL § 1983 PRINCIPLES

This section of the outline discusses both the elements of a 42 U.S.C. § 1983 cause of action (I.A) and rules common to all § 1983 causes of action (I.B-J).  The section concludes with a discussion of Bivens actions, the “federal official” analogue to § 1983 (I.K).

Section 1983 provides:

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 … .  

42 U.S.C. § 1983.

“[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”  Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).

A.      Elements of a § 1983 Action

“Traditionally, the requirements for relief under [§] 1983 have been articulated as:  (1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”  Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991).  Or, more simply, courts have required plaintiffs to “plead that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.”  Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986); see also Pistor v. Garcia, 791 F. 3d 1104, 1114 (9th Cir. 2015); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); WMX Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir. 1999) (en banc); Ortez v. Wash. Cty., Or., 88 F.3d 804, 810 (9th Cir. 1996).

1.       Person

a.       States

States are not persons for purposes of § 1983.  See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Jackson v. Barnes, 749 F.3d 755, 764 (9th Cir. 2014), cert. denied, 135 S. Ct. 980 (2015); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991).  Section 1983 claims against states, therefore, are legally frivolous.  See Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989), superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

For a discussion of a state’s Eleventh Amendment immunity, see infra I.D.3.a.

b.      Territories

Territories are not persons for purposes of § 1983.  See Ngiraingas v. Sanchez, 495 U.S. 182, 192 (1990); Magana v. Northern Mariana Islands, 107 F.3d 1436, 1438 n.1 (9th Cir. 1997); DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992); Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1371 (9th Cir. 1992); Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir. 1991) (per curiam).

c.       Local Governmental Units

For a discussion of the absence of immunity defenses for local governmental entities, see infra I.D.1.g.(1), I.D.2.a.(2), and I.D.3.b.(1).

For a discussion of the element of causation as it applies to local governmental entities, see infra I.C.3.

(1)     Status as Persons

“[M]unicipalities and other local government units . . . [are] among those persons to whom § 1983 applies.”  Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978); see also Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010); Waggy v. Spokane Cty. Wash., 594 F.3d 707, 713 (9th Cir. 2010); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Cortez v. Cty. of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002); Fairley v. Luman, 281 F.3d 913, 916 (9th Cir. 2002) (per curiam); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996).  Counties are also persons for purposes of § 1983.  See Jackson v. Barnes, 749 F.3d 755, 764 (9th Cir. 2015) (“[W]hen a California sheriff’s department performs the function of conducting criminal investigations, it is a county actor subject to suit under § 1983”), cert. denied, 135 S. Ct. 980 (2015); Miranda v. Clark Cty., Nev., 319 F.3d 465, 469 (9th Cir. 2003) (en banc); Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).  Municipal government officials are also persons for purposes of § 1983.  See Monell, 436 U.S. at 691 n.55.

 (2)    Theory of Liability

A local governmental unit may not be held responsible for the acts of its employees under a respondeat superior theory of liability.  See Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Collins v. City of Harker Heights, 503 U.S. 115, 121 (1992); City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008); Webb v. Sloan, 330 F.3d 1158, 1163-64 (9th Cir. 2003); Gibson v. Cty. of Washoe, 290 F.3d 1175, 1185 (9th Cir. 2002); Hopper v. City of Pasco, 241 F.3d 1067, 1082 (9th Cir. 2001).

Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”  Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (discussing Iqbal and explaining that “when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinates.”).  Therefore, a plaintiff must go beyond the respondeat superior theory of liability and demonstrate that the alleged constitutional deprivation was the product of a policy or custom of the local governmental unit, because municipal liability must rest on the actions of the municipality, and not the actions of the employees of the municipality.  See Brown, 520 U.S. at 403; City of Canton, 489 U.S. at 385; Monell, 436 U.S. at 690-91; Fogel, 531 F.3d at 834; Webb, 330 F.3d at 1164; Gibson, 290 F.3d at 1187; Hopper, 241 F.3d at 1082; Blair v. City of Pomona, 223 F.3d 1074, 1079 (9th Cir. 2000); Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992).  See also Connick v. Thompson, 563 U.S. 51, 60 (2011) (explaining that to impose liability on a local government under § 1983 the plaintiffs must prove that an “action pursuant to official municipal policy” caused their injury); Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1167-68 (9th Cir. 2014) (same).  The Supreme Court has emphasized that “[w]here a plaintiff claims that the municipality . . . has caused an employee to [violate plaintiff’s constitutional rights], rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable solely for the actions of its employee.”  Brown, 520 U.S. at 405.

The “policy or custom” requirement applies irrespective of whether the remedy sought is money damages or prospective relief.  Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 34 (2010).

(a)     Municipal Policy

“A municipality is responsible for a constitutional violation, … , only when an ‘action [taken] pursuant to [an] official municipal policy of some nature’ caused the violation.” Castro v. Cty. of Los Angeles, 797 F.3d 654, 670 (9th Cir. 2015) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).  Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”  Connick v. Thompson, 563 U.S. 51, 61 (2011).  A policy “promulgated, adopted, or ratified by a local governmental entity’s legislative body unquestionably satisfies Monell’s policy requirement.”  Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc).  Moreover, a policy of inaction may be a municipal policy within the meaning of Monell.  See Waggy v. Spokane Cty. Wash., 594 F.3d 707, 713 (9th Cir. 2010); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Fairley v. Luman, 281 F.3d 913, 918 (9th Cir. 2002) (per curiam); Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001); Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992).

A choice among alternatives by a municipal official with final decision-making authority may also serve as the basis of municipal liability.  See Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83 (1986); Waggy, 594 F.3d at 713 (explaining that a policy has been defined as a deliberate choice, made from among various alternatives, to follow a course of action); Long, 442 F.3d at 1185; Fairley, 281 F.3d at 918; Oviatt, 954 F.2d at 1477; Thompson, 885 F.2d at 1443; see also City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (emphasizing that critical inquiry is whether official has final decision-making authority); Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (“Section 1983 also authorizes prisoners to sue municipal entities for damages if the enforcement of a municipal policy or practice, or the decision of a final municipal policymaker, caused the Eighth Amendment violation.”), cert denied, 135 S. Ct. 946 (2015); Lytle v. Carl, 382 F.3d 978, 983 (9th Cir. 2004) (“municipality can be liable for an isolated constitutional violation when the person causing the violation has final policymaking authority”) (citation and internal quotation  marks omitted); Collins v. City of San Diego, 841 F.2d 337, 341 (9th Cir. 1988) (“municipal liability attaches only when the decisionmaker possesses ‘final authority’ to establish municipal policy with respect to the action ordered”) (quoting Pembaur, 475 U.S. at 481).  To identify officials with final policy-making authority, the court should look to state law.  See Praprotnik, 485 U.S. at 124; Pembaur, 475 U.S. at 483; Lytle, 382 F.3d at 982; Streit v. Cty. of Los Angeles, 236 F.3d 552, 560 (9th Cir. 2001); Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999).  The question of whether an official has final decision-making authority is not a question for the jury.  See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989), superseded by statute on other grounds as stated in Fed’n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996); Praprotnik, 485 U.S. at 126; Lytle, 382 F.3d at 982; Hammer v. Gross, 932 F.2d 842, 850 n.4 (9th Cir. 1991) (en banc).

Ratification of the decisions of a subordinate by an official with final decision-making authority can also be a policy for purposes of municipal liability under § 1983.  See Praprotnik, 485 U.S. at 127; Trevino v. Gates, 99 F.3d 911, 920-21 (9th Cir. 1996); Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992).  “[T]he mere failure to investigate the basis of a subordinate’s discretionary decisions[,]” however, is not a ratification of those decisions.  Praprotnik, 485 U.S. at 130.  Moreover, mere acquiescence in a single instance of alleged unconstitutional conduct is not sufficient to demonstrate ratification of a subordinate’s acts.  See Gillette, 979 F.2d at 1348. But see McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (suggesting that failure of prison officials to discipline guards after impermissible shakedown search and failure to admit the guards’ conduct was in error could be interpreted as a municipal policy).

(b)     Municipal Custom

Even if there is not an explicit policy, a plaintiff may establish municipal liability upon a showing that there is a permanent and well-settled practice by the municipality which gave rise to the alleged constitutional violation.  See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Navarro v. Block, 72 F.3d 712, 714-15 (9th Cir. 1996); Thompson v. City of Los Angeles, 885 F.2d 1439, 1444 (9th Cir. 1989), overruled on other grounds by Bull v. City & Cty. of San Francisco, 595 F.3d 964 (9th Cir. 2010).  Allegations of random acts, or single instances of misconduct, however, are insufficient to establish a municipal custom.  See Navarro, 72 F.3d at 714; Thompson, 885 F.2d at 1444.  Once the plaintiff has demonstrated that a custom existed, the plaintiff need not also demonstrate that “official policy-makers had actual knowledge of the practice at issue.”  Navarro, 72 F.3d at 714-15; Thompson, 885 F.2d at 1444.  But see Blair v. City of Pomona, 223 F.3d 1074, 1080 (9th Cir. 2000) (“open to the [municipality] to show that the custom was not known to the policy-makers”).

(c)      Municipality’s Failure to Train

The plaintiff may also establish municipal liability by demonstrating that the alleged constitutional violation was caused by a failure to train municipal employees adequately.  See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-91 (1989); Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008); Blankenhorn v. City of Orange, 485 F.3d 463, 484-85 (9th Cir. 2007); Long v. Cty. of Los Angeles, 442 F.3d 1178, 1186-87 (9th Cir. 2006); Johnson v. Hawe, 388 F.3d 676, 686 (9th Cir. 2004); Miranda v. Clark Cty., Nev., 319 F.3d 465, 471 (9th Cir. 2003) (en banc); Gibson v. Cty. of Washoe, 290 F.3d 1175, 1194 (9th Cir. 2002); Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (per curiam); see especially Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 409-10 (1997) (discussing limited scope of such a claim).  Such a showing depends on three elements:  (1) the training program must be inadequate “‘in relation to the tasks the particular officers must perform’”; (2) the city officials must have been deliberately indifferent “‘to the rights of persons with whom the [local officials] come into contact’”; and (3) the inadequacy of the training “must be shown to have ‘actually caused’ the constitutional deprivation at issue.”  Merritt v. Cty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) (internal citations omitted); see also Connick v. Thompson, 563 U.S. 51, 61 (2011) (stating, “To satisfy the statute, a municipality’s failure to train its employees in a relevant respect must amount to ‘deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.’  []  Only then ‘can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.’”) (quoting Canton, 489 U.S. at 388).  Note that “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.”  Connick, 563 U.S. at 61.

The indifference of city officials may be shown where, “in light of the duties assigned to specific . . . employees[,] the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”  City of Canton, 489 U.S. at 390; see Long, 442 F.3d at 1186-87; Johnson, 388 F.3d at 686; Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004); Lee v. City of Los Angeles, 250 F.3d 668, 682 (9th Cir. 2001); Oviatt v. Pearce, 954 F.2d 1470, 1477-78 (9th Cir. 1992); Merritt, 875 F.2d at 770; see also Henry v. Cty. of Shasta, 137 F.3d 1372, 1372 (9th Cir. 1998) (order) (amending opinion to include statement that turning blind eye to constitutional violation can demonstrate deliberate indifference).  The Supreme Court has explained that “[d]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.”  Connick, 563 U.S. at 61 (internal quotation marks and citation omitted).  Whether the plaintiff has succeeded in demonstrating such deliberate indifference is generally a question for the jury.  See Lee, 250 F.3d at 682 (citation omitted); Alexander v. City of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994); Oviatt, 954 F.2d at 1478.

(d)     Pleading Standard

There is no heightened pleading standard with respect to the “policy or custom” requirement of demonstrating municipal liability.  See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-68 (1993); see also Empress LLC v. City of San Francisco, 419 F.3d 1052, 1055 (9th Cir. 2005); Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1124 (9th Cir. 2002); Lee v. City of Los Angeles, 250 F.3d 668, 679-80 (9th Cir. 2001); Evans v. McKay, 869 F.2d 1341, 1349 (9th Cir. 1989).  This court previously held that “a claim of municipal liability under [§] 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.’”  Karim-Panahi v. L.A. Police Dep’t., 839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. Cty. of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)); see also Evans, 869 F.2d at 1349; Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986) (“[I]t is enough if the custom or policy can be inferred from the allegations of the complaint.”).  However, the Supreme Court more recently held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) that conclusory statements that merely recite the elements of a claim are insufficient for the purpose of Federal Rule of Civil Procedure 12(b)(6).  See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Twombly, 550 U.S. at 555 (“a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”).

For discussion of a heightened pleading standard in the context of claims of qualified immunity, see infra I.D.2.b.

d.      Agencies

A governmental agency that is an arm of the state is not a person for purposes of § 1983.  See Howlett v. Rose, 496 U.S. 356, 365 (1990); Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387, 1398-99 (9th Cir. 1993) (en banc); cf. Durning v. Citibank, N.A., 950 F.2d 1419, 1423 (9th Cir. 1991) (explaining that agencies that are arms of the state are entitled to the same immunity from suit as the state because “‘the state is the real, substantial party in interest’” (citation omitted)).

A state’s Department of Corrections is most likely an arm of the state under this analysis.  See Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (concluding that the suit against the state Board of Corrections was barred by the Eleventh Amendment); Hale, 993 F.2d at 1398-99 (concluding that the Arizona Department of Corrections was an arm of the state and, thus, not a person for § 1983 purposes); Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320, 1327 (9th Cir. 1991) (same).

To determine whether a governmental agency is an arm of the state, the court should “look to state law and examine ‘whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only in the name of the state, and the corporate status of the entity.’”  Hale, 993 F.2d at 1399 (quoting Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988)); see also Del Campo v. Kennedy, 517 F.3d 1070, 1077 (9th Cir. 2008); Beentjes v. Placer Cty. Air Pollution Control Dist., 397 F.3d 775, 778 (9th Cir. 2005); Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1180 (9th Cir. 2003); Aguon v. Commonwealth Ports Auth., 316 F.3d 899, 901 (9th Cir. 2003); Streit v. Cty. of Los Angeles, 236 F.3d 552, 566 (9th Cir. 2001); Eaglesmith v. Ward, 73 F.3d 857, 860 (9th Cir. 1996).

The first, and most important, factor is “whether a judgment against the defendant entity under the terms of the complaint would have to be satisfied out of the limited resources of the entity itself or whether the state treasury would also be legally pledged to satisfy the obligation.”  Durning, 950 F.2d at 1424; see also Beentjes, 397 F.3d at 778; Holz, 347 F.3d at 1182; Streit, 236 F.3d at 566-67; ITSI T.V. Prods. v. Agric. Ass’ns, 3 F.3d 1289, 1292 (9th Cir. 1993); cf. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997) (stating that the first factor is of “considerable importance”).  Whether the state will be indemnified by a third party for financial liability is irrelevant to this inquiry.  See Regents of the Univ. of Cal., 519 U.S. at 431; cf. Schulman v. California (In re Lazar), 237 F.3d 967, 975 (9th Cir. 2001); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 395 (9th Cir. 1997).

When analyzing the second factor, the court should construe “central governmental functions” broadly.  See Durning, 950 F.2d at 1426.

The third factor of the test is entitled to less weight than the first two factors.  See Holz, 347 F.3d at 1187-88; Aguon, 316 F.3d at 903.

e.       State Officials

(1)     Official Capacity

State officials sued in their official capacity for damages are not persons for purposes of § 1983.  See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n.24 (1997); Hafer v. Melo, 502 U.S. 21, 27 (1991); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Aguon v. Commonwealth Ports Auth., 316 F.3d 899, 901 (9th Cir. 2003); DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992).

State officials sued in their official capacity for injunctive relief, however, are persons for purposes of § 1983.  See Will, 491 U.S. at 71 n.10; Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013); Flint, 488 F.3d at 825; Doe, 131 F.3d at 839; Guam Soc’y of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1371 (9th Cir. 1992).  See also Thornton v. Brown, 757 F.3d 834, 839 (9th Cir. 2013).

Official-capacity suits filed against state officials are merely an alternative way of pleading an action against the entity of which the defendant is an officer.  See Hafer, 502 U.S. at 25; Kentucky v. Graham, 473 U.S. 159, 165 (1985); see also Hartmann, 707 F.3d at 1127; Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010) (treating suit against state officials in their official capacities as a suit against the state of California).  In an official-capacity suit, the plaintiff must demonstrate that a policy or custom of the governmental entity of which the official is an agent was the moving force behind the violation.  See Hafer, 502 U.S. at 25; Graham, 473 U.S. at 166.  For a discussion of how a plaintiff might make such a showing, see supra I.A.1.c.(2).   Moreover, the only immunity available to the defendant sued in her or his official capacity is the sovereign immunity that the governmental entity may possess.  See Graham, 473 U.S. at 167.  For a discussion of a state’s Eleventh Amendment immunity, see infra I.D.3.a.

(2)     Personal Capacity

State officials sued in their personal capacity are persons for purposes of § 1983.  See Hafer v. Melo, 502 U.S. 21, 31 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003); DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992).

“Personal-capacity suits seek to impose personal liability upon a government official for actions [the official] takes under color of state law.”  Kentucky v. Graham, 473 U.S. 159, 165 (1985).  Liability in a personal-capacity suit can be demonstrated by showing that the official caused the alleged constitutional injury.  See id. at 166.  The official in a personal-capacity suit may, depending upon the facts, be able to establish immunity from claims for damages.  See id. at 166-67.  For a discussion of absolute immunities, see infra I.D.1; for a discussion of the defense of qualified immunity, see infra I.D.2. 

(3)     Determining Capacity

Because the plaintiff’s complaint will not always clearly indicate the capacity in which the defendants are being sued, the court must sometimes make this determination.

As a first principle, it is important to note that the capacity in which the official acted when engaging in the alleged unconstitutional conduct does not determine the capacity in which the official is sued.  See Hafer v. Melo, 502 U.S. 21, 26 (1991) (Official capacity “is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.”); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1991).

Courts should examine the nature of the proceedings to determine the capacity in which a defendant is sued.  See Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1996).  Where the plaintiff is seeking damages against a state official, a strong presumption is created in favor of a personal-capacity suit because an official-capacity suit for damages would be barred.  See Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999); Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho, 42 F.3d 1278, 1284 (9th Cir. 1994); Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 973 n.16 (9th Cir. 1994); Price, 928 F.2d at 828.

f.       Federal Officials

“It is well settled that federal officials sued in their official capacity are subject to injunctive relief under § 1983 if they ‘conspire with or participate in concert with state officials who, under color of state law, act to deprive a person of protected rights.’”  Cabrera v. Martin, 973 F.2d 735, 741 (9th Cir. 1992) (quoting Scott v. Rosenberg, 702 F.2d 1263, 1269 (9th Cir. 1983)).  For a discussion of the elements of a conspiracy claim, see infra I.A.2.b.(5).  For a discussion of Bivens actions against federal officials in their personal capacity, see infra I.K.

2.       Acting under Color of State Law

a.       General Principles

The question of whether a person who has allegedly caused a constitutional injury was acting under color of state law is a factual determination.  See Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1209 (9th Cir. 2002); Gritchen v. Collier, 254 F.3d 807, 813 (9th Cir. 2001); Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam); Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983).

A defendant has acted under color of state law where he or she has “exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’”  West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)); see also Polk Cty. v. Dodson, 454 U.S. 312, 317-18 (1981); Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006); McDade v. West, 223 F.3d 1135, 1139-40 (9th Cir. 2000); Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir. 1997); Vang v. Xiong, 944 F.2d 476, 479 (9th Cir. 1991); see also Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011) (determining whether private entities operating as contract chaplains within the Washington State prison system were state actors for purposes of § 1983 and RLUIPA).

Moreover, conduct that would amount to state action for purposes of the Fourteenth Amendment is action under the color of state law for purposes of § 1983.  See West, 487 U.S. at 49; Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982); Johnson, 113 F.3d at 1118; Fred Meyer, Inc. v. Casey, 67 F.3d 1412, 1414 (9th Cir. 1995); cf. Johnson, 113 F.3d at 1118-20 (describing tests for finding state action); Howerton, 708 F.2d at 382-83 (same).

“Actions taken pursuant to a municipal ordinance are made ‘under color of state law.’” See Coral Constr. Co. v. King Cty., 941 F.2d 910, 926 (9th Cir. 1991).

Even if the deprivation represents an abuse of authority or lies outside the authority of the official, if the official is acting within the scope of his or her employment, the person is still acting under color of state law.  See Anderson, 451 F.3d at 1068-69; McDade, 223 F.3d at 1140; Shah v. Cty. of Los Angeles, 797 F.2d 743, 746 (9th Cir. 1986).  However, “[i]f a government officer does not act within [the] scope of employment or under the color of state law, then that government officer acts as a private citizen.”  See Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (finding no action under color of state law where a police officer returned to a home where a search had taken place the day before, forced his way in, and tortured the two people residing in the home); see also Gritchen, 254 F.3d at 812-13; Huffman v. Cty. of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998); Johnson, 113 F.3d at 1117-18.

b.      Applications

(1)     State Employees

Generally, employees of the state are acting under color of state law when acting in their official capacity.  See West v. Atkins, 487 U.S. 42, 49 (1988); Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006); McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000); Vang v. Xiong, 944 F.2d 476, 479 (9th Cir. 1991).

Even where state officials are administering a federally funded program, the state officials are still acting under color of state law.  See Tongol v. Usery, 601 F.2d 1091, 1097 (9th Cir. 1979).

(2)     Prison Officials

Prison officials, when acting in their official capacity, are acting under color of state law.  See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).  The Supreme Court has reserved the question of whether prison guards working for private prison management firms are acting under color of state law.  See Richardson v. McKnight, 521 U.S. 399, 413 (1997) (holding that employees of private prison are not entitled to qualified immunity).  But see Pollard v. The Geo Group, Inc., 629 F.3d 843, 856-58 (9th Cir. 2010) (recognizing in Richardson the Court did not address the question of whether private guards acted under color of federal or state law, and holding that employees of a private corporation operating a prison acted under color of federal law for purposes of Bivens liability), reversed by Minneci v. Pollard, 132 S. Ct. 617, 620, 627 n.* (2012) (holding that prisoner could not assert an Eighth Amendment Bivens claim for damages against private prison employees; note that Justice Ginsberg dissenting noted that petitioners did not seek Supreme Court review of the Ninth Circuit’s determination that petitioners acted under color of federal law).

(3)     Prison Physicians

Physicians who contract with prisons to provide medical services are acting under color of state law.  See West v. Atkins, 487 U.S. 42, 53-54 (1988); Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) (per curiam) (hospital and ambulance service under contract with the state).  Cf. Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 925-26 (9th Cir. 2011) (distinguishing West and determining that contract chaplains were not state actors). 

(4)     Public Defenders

When public defenders are acting in their role as advocate, they are not acting under color of state law for § 1983 purposes.  See Georgia v. McCollum, 505 U.S. 42, 53 (1992); Polk Cty. v. Dodson, 454 U.S. 312, 320-25 (1981); Jackson v. Brown, 513 F.3d 1057, 1079 (9th Cir. 2008); Miranda v. Clark Cty., Nev., 319 F.3d 465, 468 (9th Cir. 2003) (en banc); United States v. De Gross, 960 F.2d 1433, 1442 n.12 (9th Cir. 1992) (en banc); see also Vermont v. Brillon, 556 U.S. 81, 91 (2009) (assigned public defender is ordinarily not considered a state actor); Kirtley v. Rainey, 326 F.3d 1088, 1093-94 (9th Cir. 2003) (citing Polk Cty. to determine that a state-appointed guardian ad litem does not act under color of state law for purposes of § 1983); Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (relying on Polk Cty. to determine that federal public defenders are not acting under color of federal law for purposes of Bivens action).  The Supreme Court has concluded that public defenders do not act under color of state law because their conduct as legal advocates is controlled by professional standards independent of the administrative direction of a supervisor.  See Brillon, 556 U.S. at 92; Polk Cty., 454 U.S. at 321; see also Blum v. Yaretsky, 457 U.S. 991, 1008-09 (1982) (applying similar rationale to determine that administrators of nursing home were not state actors); Mathis v. Pac. Gas & Elec. Co., 891 F.2d 1429, 1432 (9th Cir. 1989) (applying similar rationale to determine that employees conducting psychiatric evaluation were not state actors).  But cf. Gonzalez v. Spencer, 336 F.3d 832, 834 (9th Cir. 2003) (per curiam) (explaining that a private attorney who is retained to represent state entities and their employees in litigation acts under color of state law because his or her role is “analogous to that of a state prosecutor rather than a public defender” (citing Polk Cty., 454 U.S. at 323 n.13)), abrogated by Filarsky v. Delia, 132 S. Ct. 1657, 1667-68 (2012).

Where public defenders are performing administrative or investigative functions, they may be acting under color of state law.  See Brillon, 556 U.S. at 91 n.7; Polk Cty., 454 U.S. at 324-25; Miranda, 319 F.3d at 469. For a discussion of the distinction between functions performed as an advocate and functions performed as an administrator/investigator, see infra I.D.1.c.(1).

(5)     Private Parties

Generally, private parties are not acting under color of state law.  See Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991); see also Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (explaining that a lawyer in private practice does not act under color of state law).

Where a private party conspires with state officials to deprive others of constitutional rights, however, the private party is acting under color of state law.  See Tower v. Glover, 467 U.S. 914, 920 (1984); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Crowe v. Cty. of San Diego, 608 F.3d 406, 440 (9th Cir. 2010); Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002); DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir. 2000); George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1231 (9th Cir. 1996) (per curiam); Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996); Howerton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983). 

“To prove a conspiracy between the state and private parties under [§] 1983, the [plaintiff] must show an agreement or meeting of the minds to violate constitutional rights.  To be liable, each participant in the conspiracy need not know the exact details of the plan, but each must at least share the common objective of the conspiracy.”  United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc) (citations and internal quotation marks omitted); see also Crowe, 608 F.3d at 440; Franklin, 312 F.3d at 441; Mendocino Envt’l Ctr. v. Mendocino Cty., 192 F.3d 1283, 1301-02 (9th Cir. 1999); Gilbrook v. City of Westminster, 177 F.3d 839, 856-57 (9th Cir. 1999); Taylor v. List, 880 F.2d 1040, 1048 (9th Cir. 1989).  Conclusory allegations are insufficient to state a claim of conspiracy.  See Simmons, 318 F.3d at 1161; Radcliffe v. Rainbow Constr. Co., 254 F.3d 772, 783-84 (9th Cir. 2001); Price, 939 F.2d at 708-09.  For a discussion of heightened pleading requirements, see infra I.D.2.b and II.A.1.b.(1).

(6)     Federal Employees

Federal employees acting pursuant to federal law are not acting under the color of state law.  See Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995); Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981). 

Where federal officials conspire with state officials to deprive a person of constitutional rights, however, they may be acting under color of state law.  See Billings, 57 F.3d at 801.  For elements of conspiracy, see supra I.A.2.b.(5).

For state administration of federally funded programs, see supra I.A.2.b.(1).

3.       Deprivation of a Right

a.       Rights Guaranteed by the Constitution

Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution.  See Buckley v. City of Redding, 66 F.3d 188, 190 (9th Cir. 1995); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984).

b.      Rights Guaranteed by Federal Statutes

Section 1983 can provide a cause of action against persons acting under color of state law who have violated rights guaranteed by federal statutes.   See Gonzaga Univ. v. Doe, 536 U.S. 273, 279 (2002); Blessing v. Freestone, 520 U.S. 329, 340-41 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981); Maine v. Thiboutot, 448 U.S. 1, 4 (1980); Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d 974, 978-79 (9th Cir. 2010); AlohaCare v. Haw., Dep’t of Human Servs., 572 F.3d 740, 745 (9th Cir. 2009); Ball v. Rodgers, 492 F.3d 1094, 1103 (9th Cir. 2007); Legal Servs. of N. Cal., Inc. v. Arnett, 114 F.3d 135, 138 (9th Cir. 1997).  Some decisions have stated that there is a presumption that § 1983 provides a remedy for violations of federal statutes.  See Livadas v. Bradshaw, 512 U.S. 107, 133 (1994); Almond Hill Sch. v. USDA, 768 F.2d 1030, 1035 (9th Cir. 1985); Keaukaha-Panaewa Cmty. Ass’n v. Hawaiian Homes Comm’n, 739 F.2d 1467, 1470 (9th Cir. 1984).

Section 1983 can be used as a mechanism for enforcing the rights guaranteed by a particular federal statute only if (1) the statute creates enforceable rights and (2) Congress has not foreclosed the possibility of a § 1983 remedy for violations of the statute in question.  See Blessing, 520 U.S. at 340-41; Dittman v. California, 191 F.3d 1020, 1027-28 (9th Cir. 1999); Arnett, 114 F.3d at 138; Almond Hill Sch., 768 F.2d at 1035.

To determine whether the federal statute has created rights enforceable through § 1983, the court considers whether the statute (1) is intended to benefit the class of which the plaintiff is a member; (2) sets forth standards, clarifying the nature of the right, that make the right capable of enforcement by the judiciary; and (3) is mandatory, rather than precatory, in nature.  See Blessing, 520 U.S. at 340-41; Cal. State Foster Parent Ass’n, 624 F.3d at 979; Day v. Apoliona, 496 F.3d 1027, 1035 (9th Cir. 2007); Ball, 492 F.3d at 1104; Sanchez v. Johnson, 416 F.3d 1051, 1056-57 (9th Cir. 2005); Dittman, 191 F.3d at 1028; Buckley v. City of Redding, 66 F.3d 188, 190-91 (9th Cir. 1995).  “In carrying out this inquiry, [the court should] examine whether particular statutory provisions create specific enforceable rights, rather than considering the statute and purported rights on a more general level.”  Arnett, 114 F.3d at 138 (citing Blessing, 520 U.S. at 341-42).

To determine whether the federal statute forecloses the possibility of a § 1983 action, the court considers whether the statute contains (1) an express provision precluding a cause of action under § 1983 or (2) “‘a comprehensive enforcement scheme that is incompatible with individual enforcement under section 1983.’”  City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005) (quoting Blessing, 520 U.S. at 341); Dittman, 191 F.3d at 1028.  Where statutes contain provisions for criminal penalties, citizen suits, judicial review, or even administrative proceedings alone, the Supreme Court has found the remedial scheme sufficiently comprehensive to foreclose an independent § 1983 cause of action.  See Abrams, 544 U.S. at 121-22; see also Buckley, 66 F.3d at 191-92.  Where a statute contains neither judicial nor administrative remedies available to private parties, the statute does not imply the foreclosure of a § 1983 remedy, even where the government retains oversight of statutory compliance.  See Blessing, 520 U.S. at 346-48.  See also Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 252-58 (2009) (stating that the Court has not held that an implied right of action had the effect of precluding suit under § 1983, and holding that Title IX is not an exclusive mechanism for addressing gender discrimination in schools or a substitute for § 1983 suits).

Attorney’s fees are available through 42 U.S.C. § 1988 for § 1983 actions alleging violations of federal statutes.  See Maine, 448 U.S. at 9.  For further discussion of availability of attorney’s fees under § 1983, see infra I.H.1.

c.       Rights Guaranteed by State Law

Section 1983 does not provide a cause of action for violations of state law.  See Galen v. Cty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007); Ove v. Gwinn, 264 F.3d 817, 824 (9th Cir. 2001); Sweaney v. Ada Cty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997); Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996); Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981).  Where a violation of state law is also a violation of a constitutional right, however, § 1983 does provide a cause of action. See Lovell, 90 F.3d at 370; Draper v. Coombs, 792 F.2d 915, 921 (9th Cir. 1986); see also Weilburg v. Shapiro, 488 F.3d 1202, 1207 (9th Cir. 2007).

B.      State-of-Mind Requirement

“[Section] 1983 . . . contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right.”  Daniels v. Williams, 474 U.S. 327, 329-30 (1986); see also Maddox v. City of Los Angeles, 792 F.2d 1408, 1413-14 (9th Cir. 1986).

C.      Causation

1.       General Principles

A person deprives another of a constitutional right, “within the meaning of § 1983, if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); see also Redman v. Cty. of San Diego, 942 F.2d 1435, 1439-40 (9th Cir. 1991) (en banc), abrogated on other grounds  by Farmer v. Brennan, 511 U.S. 825 (1994); Stevenson v. Koskey, 877 F.2d 1435, 1438-39 (9th Cir. 1989); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).  The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict’ constitutional harms.”  Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743); see also Wong v. United States, 373 F.3d 952, 966 (9th Cir. 2004); Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999); Harris v. Roderick, 126 F.3d 1189, 1196 (9th Cir. 1997); Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988); Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987); McRorie v. Shimoda, 795 F.2d 780, 783 (9th Cir. 1986).  This standard of causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.”  Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008); Wong, 373 F.3d at 966; Stevenson, 877 F.2d at 1438-39; Leer, 844 F.2d at 634.

When making the causation determination, the court “must take a very individualized approach which accounts for the duties, discretion, and means of each defendant.”  Leer, 844 F.2d at 633-34.

2.       Supervisory Liability

“Liability under [§] 1983 arises only upon a showing of personal participation by the defendant.  A supervisor is only liable for the constitutional violations of . . . subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.  There is no respondeat superior liability under [§] 1983.”  Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”); Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1097 (9th Cir. 2013) (“[T]here is no respondeat superior liability under § 1983. Rather, a government official may be held liable only for the official’s own conduct.”); Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009); Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007) (concluding that allegations that school officials knew of alleged violation and failed to take corrective action were sufficient to state a claim); Harris v. Roderick, 126 F.3d 1189, 1204 (9th Cir. 1997) (concluding that allegations that FBI agents developed a plan and then encouraged another agent to shoot a suspect were sufficient to state a claim); Ortez v. Wash. Cty., Or., 88 F.3d 804, 809 (9th Cir. 1996) (concluding proper to dismiss where no allegations of knowledge of or participation in alleged violation); Robins v. Meecham, 60 F.3d 1436, 1442 (9th Cir. 1995) (concluding that failure to intervene to stop alleged violation could be sufficient to establish liability); Redman v. Cty. of San Diego, 942 F.2d 1435, 1446-47 (9th Cir. 1991) (en banc) (concluding that knowledge of a policy and practice of overcrowding that allegedly resulted in inmate’s rape could be sufficient to establish liability), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994).

“A showing that a supervisor acted, or failed to act, in a manner that was deliberately indifferent to an inmate’s Eighth Amendment rights is sufficient to demonstrate the involvement – and the liability – of that supervisor. Thus, when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinates.”  Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (holding that “a plaintiff may state a claim against a supervisor for deliberate indifference based upon the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her subordinates”).

Where state law imposes vicarious liability, however, it may be imposed under § 1983.  See Johnson v. Duffy, 588 F.2d 740, 744 (9th Cir. 1978).

For further discussion of supervisory liability, see supra I.A.1.c.(2).

3.       Local Governmental Unit Liability         

Regardless of what theory the plaintiff employs to establish municipal liability – policy, custom or failure to train – the plaintiff must establish an affirmative causal link between the municipal policy or practice and the alleged constitutional violation.  See City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 391-92 (1989); Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996); Oviatt v. Pearce, 954 F.2d 1470, 1473-74 (9th Cir. 1992).

For a discussion of theories of liability applicable to local governmental units, see supra I.A.1.c.(2).

4.       Relationship to Relief Sought

Where the plaintiff is seeking injunctive or declaratory relief, as opposed to damages, the causation inquiry “is broader and more generalized.”  Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988).

5.       Pleading Standards

“Sweeping conclusory allegations will not suffice to prevent summary judgment.  The [plaintiff] must set forth specific facts as to each individual defendant’s” causal role in the alleged constitutional deprivation.  Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (citation omitted).

D.      Immunities

1.       Absolute Immunity

Immunities that were well established when § 1983 was enacted were not abrogated by § 1983.  See Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); Burns v. Reed, 500 U.S. 478, 484 (1991); Procunier v. Navarette, 434 U.S. 555, 561 (1978); Miller v. Gammie, 335 F.3d 889, 895-96 (9th Cir. 2003) (en banc); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996); Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984).  In light of this presumption, “absolute immunity [has been granted] to ‘the President, judges, prosecutors, witnesses, and officials performing ‘quasi-judicial’ functions, and legislators.’”  Fry v. Melaragno, 939 F.2d 832, 836 (9th Cir. 1991) (citation omitted); see also Tower v. Glover, 467 U.S. 914, 920 (1984); Procunier, 434 U.S. at 561; Miller, 335 F.3d at 896. 

For a discussion of policy arguments in favor of absolute immunity, see  Forrester v. White, 484 U.S. 219, 223 (1988); Imbler v. Pachtman, 424 U.S. 409, 423 (1976); Robichaud v. Ronan, 351 F.2d 533, 535-36 (9th Cir. 1965).

a.       Basic Principles

(1)     Determining Eligibility for Absolute Immunity

“In determining which officials perform functions that might justify a full exemption from liability, [the Court] ha[s] undertaken a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.”  Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993) (internal quotation marks omitted); see also Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); Tower v. Glover, 467 U.S. 914, 920 (1984); Butz v. Economou, 438 U.S. 478, 508 (1978).  “[T]he Court has [also] examined the ‘functional comparability’ of the role of the official under scrutiny to the role of analogous officials who enjoyed immunity under common law in order to determine whether the modern-day official is entitled to any degree of immunity.”  Sellars v. Procunier, 641 F.2d 1295, 1298 (9th Cir. 1981).  Under this “functional approach,” the Court “examine[s] the nature of the functions with which a particular official or class of officials has been lawfully entrusted, and . . . seek[s] to evaluate the effect that exposure to particular forms of liability would likely have on the appropriate exercise of those functions.”  Forrester v. White, 484 U.S. 219, 224 (1988); see also Mishler v. Clift, 191 F.3d 998, 1002 (9th Cir. 1999); Fry v. Melaragno, 939 F.2d 832, 835 n.6 (9th Cir. 1991).  The eligibility inquiry for absolute immunity, then, turns on “the nature of the function performed, not the identity of the actor who performed it.”  Buckley, 509 U.S. at 269 (citation and internal quotation marks omitted); see also Clinton v. Jones, 520 U.S. 681, 695 (1997); Waggy v. Spokane Cty. Wash., 594 F.3d 707, 710-11 (9th Cir. 2010); Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009); Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005); KRL v. Moore, 384 F.3d 1105, 1113 (9th Cir. 2004); cf. Richardson v. McKnight, 521 U.S. 399, 408-09 (1997) (explaining that mere performance of governmental function does not entitle private person to absolute or qualified immunity).

(2)     Burden of Proof Regarding Eligibility for Absolute Immunity

“The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity.”  Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993); see also Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993); Ewing v. City of Stockton, 588 F.3d 1218, 1234 (9th Cir. 2009); Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005); Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005).  “[A]bsolute freedom from the threat of unfounded lawsuits . . . is the rare exception to the rule.”  Meyers v. Contra Costa Cty. Dep’t of Soc. Servs., 812 F.2d 1154, 1158 (9th Cir. 1987); see also Antoine, 508 U.S. at 432 n.4; Burns v. Reed, 500 U.S. 478, 486-87 (1991); Botello, 413 F.3d at 976; Genzler, 410 F.3d at 636-37.

(3)     Effect of Absolute Immunity

“An absolute immunity defeats a suit [for damages] at the outset, so long as the official’s actions were within the scope of the immunity.”  Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976); see also Sellars v. Procunier, 641 F.2d 1295, 1297 n.4 (9th Cir. 1981).

(4)     Application to Bivens Actions

For purposes of immunity analysis, there is no distinction between § 1983 actions and Bivens actions.  See Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 433 n.5 (1993); Butz v. Economou, 438 U.S. 478, 499-500 (1978).

b.      Judicial Immunity

(1)     Basic Principles

“Courts have extended absolute judicial immunity from damage actions under 42 U.S.C. § 1983 not only to judges but also to officers whose functions bear a close association to the judicial process.”  Demoran v. Witt, 781 F.2d 155, 156 (9th Cir. 1986).  “Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities.”  Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc); see also Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008); Partington v. Gedan, 961 F.2d 852, 860 n.8 (9th Cir. 1992); Houghton v. Osborne, 834 F.2d 745, 750 (9th Cir. 1987). 

Judicial immunity for state defendants does not extend to actions for prospective injunctive relief.  See Mireles v. Waco, 502 U.S. 9, 10 n.1 (1991) (per curiam); Pulliam v. Allen, 466 U.S. 522, 541-42 (1984); Lebbos v. Judges of  Superior Court, Santa Clara Cty., 883 F.2d 810, 813 & n.5 (9th Cir. 1989); Ashelman, 793 F.2d at 1075; see also Partington, 961 F.2d at 860 n.8 (declaratory relief).  But see Moore v. Brewster, 96 F.3d 1240, 1243 (9th Cir. 1996) (“‘The judicial or quasi-judicial immunity available to federal officers is not limited to immunity from damages, but extends to actions for declaratory, injunctive and other equitable relief.’”) (emphasis added) (citation omitted).  In 1996, however, Congress amended § 1983 to prohibit the grant of injunctive relief against any judicial officer acting in her or his official capacity “unless a declaratory decree was violated or declaratory relief was unavailable.”  42 U.S.C. § 1983.  

(2)     Eligibility 
(a)     Judges

“Judges are absolutely immune from damage actions for judicial acts taken within the jurisdiction of their courts. . . . A judge loses absolute immunity only when [the judge] acts in the clear absence of all jurisdiction or performs an act that is not judicial in nature.”  Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam) (citations omitted); see also Mireles v. Waco, 502 U.S. 9, 9 (1991) (per curiam); Pierson v. Ray, 386 U.S. 547, 553-54 (1967); Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 750 (9th Cir. 2009) (absolute immunity is generally accorded to judges functioning in their official capacities); Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008); Sadoski v. Mosley, 435 F.3d 1076, 1079 (9th Cir. 2006); Mishler v. Clift, 191 F.3d 998, 1003 (9th Cir. 1999); Meek v. Cty. of Riverside, 183 F.3d 962, 965 (9th Cir. 1999); New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1301-02 (9th Cir. 1989); Gregory v. Thompson, 500 F.2d 59, 62 (9th Cir. 1974) (“A seemingly impregnable fortress in American Jurisprudence is the absolute immunity of judges from civil liability for acts done by them within their judicial jurisdiction.”).

The court should construe the term “jurisdiction” broadly when making a judicial-immunity inquiry.  See Franceschi v. Schwartz, 57 F.3d 828, 830 (9th Cir. 1995) (per curiam); Rosenthal v. Justices of the Supreme Court of Cal., 910 F.2d 561, 566 (9th Cir. 1990); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986) (en banc); see also Stump v. Sparkman, 435 U.S. 349, 357-60 (1978).  The focus is on the court’s subject-matter jurisdiction over the dispute, not the court’s personal jurisdiction over the parties.  See New Alaska Dev. Corp., 869 F.2d at 1302; Ashelman 793 F.2d at 1076.  Finally, a judge retains absolute immunity even when the judge erroneously interprets a jurisdiction-conferring statute.  See Sadoski, 435 F.3d at 1079 (explaining that even where a judge acts in excess of jurisdiction, he or she does not act in clear absence of all jurisdiction); Schucker, 846 F.2d at 1204.

“To determine if a given action is judicial . . . , courts [should] focus on whether (1) the precise act is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy centered around a case then pending before the judge; and (4) the events at issue arose directly and immediately out of a confrontation with the judge in his or her official capacity.”  Ashelman, 793 F.2d at 1075-76; see also Stump, 435 U.S. at 362; Meek, 183 F.3d at 965-66; Partington v. Gedan, 961 F.2d 852, 866 (9th Cir. 1992); New Alaska Dev. Corp., 869 F.2d at 1302.

“Administrative decisions, even though they may be essential to the very functioning of the courts,” are not within the scope of judicial immunity.  Forrester v. White, 484 U.S. 219, 228-30 (1988) (holding that a judge is not absolutely immune from suit in her or his capacity as an employer and that the judge may be liable for unconstitutional conduct regarding the discharge, demotion, and treatment of employees); see also Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 (1993); Meek, 183 F.2d at 966; L.A. Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990); New Alaska Dev. Corp., 869 F.2d at 1302.

Judges retain their immunity when they are accused of acting maliciously or corruptly, see Mireles, 502 U.S. at 11; Stump, 435 U.S. at 356-57; Meek, 183 F.3d at 965; Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989), and when they are accused of acting in error, see Meek, 183 F.3d at 965; Schucker, 846 F.2d at 1204; Ashelman, 793 F.2d at 1075.

(b)     Magistrate Judges

Magistrate judges are entitled to absolute judicial immunity from § 1983 damage actions.  See Tanner v. Heise, 879 F.2d 572, 576-78 (9th Cir. 1989); Ryan v. Bilby, 764 F.2d 1325, 1328 n.4 (9th Cir. 1985); see also Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452, 1454-55 (9th Cir. 1993) (per curiam) (extending judicial immunity to special masters).

(c)      Administrative Agency Hearing Officers

“[A]djudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from [§ 1983] suits for damages.”  Butz v. Economou, 438 U.S. 478, 512-13 (1978); see also Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 925-26 (9th Cir. 2004); Buckles v. King Cty., 191 F.3d 1127, 1133-34 (9th Cir. 1999); Mishler v. Clift, 191 F.3d 998, 1009 (9th Cir. 1999); Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999); Fry v. Melaragno, 939 F.2d 832, 836-37 (9th Cir. 1991).

(d)     Court Mediators

As judicial officers, court mediators of custody and visitation disputes are entitled to absolute judicial immunity from § 1983 damage actions for conduct that is part of their official duties.  See Meyers v. Contra Costa Cty. Dep’t of Soc. Servs., 812 F.2d 1154, 1158-59 (9th Cir. 1987).

(e)      Court-Appointed Psychiatrists

“[C]ourt-appointed psychiatrists who prepared and submitted medical reports to the state court are . . . immune from liability for damages under [§ 1983].”  Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970) (per curiam).

(f)      Court Employees

Court employees involved in the jury selection process may be entitled to absolute judicial immunity for actions taken in their official capacity.  Compare Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1133-35 (9th Cir. 2001) (explaining that employees performing administrative tasks are not entitled to immunity) and Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1108 (9th Cir. 1987) (same), with Pomerantz v. Cty. of Los Angeles, 674 F.2d 1288, 1291 (9th Cir. 1982) (concluding employees involved in jury-selection process were entitled to quasi-judicial immunity).

(g)     Parole Board Officials

The Ninth Circuit has held that “parole board officials are entitled to absolute immunity from suits by prisoners for actions taken when processing parole applications.”  Sellars v. Procunier, 641 F.2d 1295, 1302 (9th Cir. 1981); see also Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 751 (9th Cir. 2009) (“[P]arole board members are entitled to absolute immunity for parole board decisions.”); Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004); Bermudez v. Duenas, 936 F.2d 1064, 1066 (9th Cir. 1991) (per curiam); cf. Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (holding that governor’s review of parole decisions regarding prisoners convicted of murder pursuant to Article V, § 8(b) of the California Constitution was “functionally comparable” to a judge’s role and was therefore entitled to absolute immunity).  The immunity does not extend, however, to conduct “taken outside an official’s adjudicatory role,” or “arising from their duty to supervise parolees.”  Anderson v. Boyd, 714 F.2d 906, 909-10 (9th Cir. 1983), abrogated in part by Swift, 384 F.3d 1184; see also Swift, 384 F.3d at 1191 (concluding that parole officers were “not entitled to absolute immunity for their conduct while: (1) investigating parole violations, (2) ordering the issuance of a parole hold and orchestrating [plaintiff’s] arrest, and (3) recommending the initiation of parole revocation proceedings”).

The Supreme Court “has not decided whether state parole officials enjoy absolute immunity.”  Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see also Swift, 384 F.3d at 1188-89.

(h)     Probation Officers / Parole Officers

“In determining which officials perform functions that might justify a full exemption from liability, [the court undertakes] ‘a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it.’”  Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432, (1993) (citation omitted).  For example, “[p]robation officers preparing reports for the use of state courts possess an absolute judicial immunity from damage suits under [§] 1983 arising from acts performed within the scope of their official duties.”  Demoran v. Witt, 781 F.2d 155, 157 (9th Cir. 1986); see also Burkes v. Callion, 433 F.2d 318, 319 (9th Cir. 1970) (per curiam).  However, “a parole agent acts as a law enforcement official when investigating parole violations and executing parole holds” and cannot be entitled to absolute immunity when performing law enforcement functions.  Swift v. California, 384 F.3d 1184, 1191 (9th Cir. 2004) (explaining that parole officers are not entitled to absolute immunity for conduct not requiring the exercise of quasi-judicial discretion and holding that parole officers are not absolutely immune from suits arising from conduct distinct from the decision to grant, deny, or revoke parole).  Accordingly, parole officials “may be accorded one degree of immunity for one type of activity and a different degree for a discrete function.”  Id. at 1189 (citation and internal quotation marks omitted).  See also Thornton v. Brown, 757 F.3d 834, 839-40 (9th Cir. 2013) (concluding that parole officers were entitled to absolute immunity from the parolee’s damages claims arising out of the imposition of GPS monitoring as a condition of parole pursuant to their discretionary authority under section 3010 of the California Penal Code).

c.       Prosecutorial Immunity

(1)     Basic Principles

Prosecutorial immunity protects eligible government officials when they are acting pursuant to their official role as advocate for the state performing functions “intimately associated with the judicial phase of the criminal process.”  Imbler v. Pachtman, 424 U.S. 409, 430 (1976); see also Van de Kamp v. Goldstein, 555 U.S. 335, 341-43 (2009) (giving examples where absolute immunity has applied, including when a prosecutor prepares to initiate a judicial proceeding, or appears in court to present evidence in support of an application for a search warrant); Lacey v. Maricopa Cty., 693 F.3d 896, 912-13 (9th Cir. 2012); Ewing v. City of Stockton, 588 F.3d 1218, 1232-33 (9th Cir. 2009); Kalina v. Fletcher, 522 U.S. 118, 124-26 (1997); Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005); Genzler v. Longanbach, 410 F.3d 630, 636-37 (9th Cir. 2005); KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).  “[T]he functional nature of the activities being performed, not the status of the person performing them, is the key to whether absolute immunity attaches.” Stapley v. Pestalozzi, 733 F.3d 804, 810 (9th Cir. 2013).   As such, prosecutorial immunity does not extend to those actions of a prosecutor which are “administrative” or “investigative” in nature.  See Van de Kamp, 555 U.S. at 342-43 (explaining that prosecutorial immunity does not apply, for example, when prosecutor gives advice to police during a criminal investigation, makes statements to the press, or acts as a complaining witness in support of a warrant application); Hartman v. Moore, 547 U.S. 250, 261-62 n.8 (2006); Buckley v. Fitzsimmons, 509 U.S. 259, 271-73 (1993); Waggy v. Spokane Cty. Wash., 594 F.3d 707, 710-11 (9th Cir. 2010); Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th Cir. 2009); Botello, 413 F.3d at 975-76; Genzler, 410 F.3d at 636.

The following activities are intimately connected with the judicial phase of the criminal process: 

·        seeking a grand jury indictment, dismissing claims, deciding whether and when to prosecute, deciding what witnesses and what evidence to present, see Hartman, 547 U.S. at 261-62; Imbler, 424 U.S. at 431 n.33; Milstein v. Cooley, 257 F.3d 1004, 1012 (9th Cir. 2001); Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999); Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 643 (9th Cir. 1999) (grand jury); see also Van de Kamp, 555 U.S. at 342-43 (absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding or appears in court to present evidence in support of a search warrant application);

 

·        deciding not to prosecute a defendant, see Botello, 413 F.3d at 977; Roe v. City of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997);

·        making statements that are alleged misrepresentations and mischaracterizations during hearings, during discovery, and in court papers, see Fry v. Melaragno, 939 F.2d 832, 837-38 (9th Cir. 1991); conferring with witnesses and allegedly inducing them to testify falsely, see Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984);

 

·        preparing a case for trial, see KRL, 384 F.3d at 1112-13; Milstein, 257 F.3d at 1008; Gobel v. Maricopa Cty., 867 F.2d 1201, 1204 (9th Cir. 1989), abrogated on other grounds by City of Canton, Ohio v. Harris, 489 U.S. 378 (1989);

 

·        appearing and testifying at a hearing to obtain a search warrant, see Burns v. Reed, 500 U.S. 478, 487, 491-92 (1991);

 

·        deciding to release previously secured evidence, see Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 678-79 (9th Cir. 1984);

 

·        selecting a special prosecutor, see Lacey, 649 F.3d at 1127-1129;

·        supervising attorneys in their obligations to disclose evidence, where the decisions are linked to the prosecution of the plaintiff and necessarily require legal knowledge and the exercise of related discretion, see Van de Kamp, 555 U.S. at 341-343; Cousins, 568 F.3d at 1068-69;

 

·        submitting a motion for a bench warrant to court for arrestee’s failure to progress in court-imposed treatment program, see Waggy, 594 F.3d at 709-13; and

 

·        making parole recommendations, because parole decisions are a continuation of the sentencing process, see Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 750-51 (9th Cir. 2009).

The following activities fall outside of the official role of the prosecutor:

·        performing acts which are generally considered functions of the police, see Buckley v. Fitzsimmons, 509 U.S. 259, 274-76 (1993); Genzler, 410 F.3d at 638-43; Milstein, 257 F.3d at 1011; Herb Hallman Chevrolet, 169 F.3d at 642; Gobel, 867 F.2d at 1204;

·        advising police officers during the investigative phase of a criminal case, see Burns, 500 U.S. at 493; Ewing, 588 F.3d at 1232-34; Botello, 413 F.3d at 977-78;

 

·        acting prior to having probable cause to arrest, see Buckley, 509 U.S. at 274; Morley, 175 F.3d at 760-61; Herb Hallman Chevrolet, 169 F.3d at 643;

 

·        preparing a declaration to support an arrest warrant, see Kalina, 522 U.S. at 129-31; Morley, 175 F.3d at 760; Herb Hallman Chevrolet, 169 F.3d at 642-43, or bail revocation motion, see Cruz v. Kauai Cty., 279 F.3d 1064, 1067 (9th Cir. 2002);

 

·        holding arrestees in detention facilities where the conditions of confinement are constitutionally infirm, see Gobel, 867 F.2d at 1206;

 

·        making statements to the public concerning criminal proceedings, see Buckley, 509 U.S. at 277-78; Milstein, 257 F.3d at 1013; Gobel, 867 F.2d at 1205;

 

·        directing police officers to obtain a search warrant, serving a search warrant, and being present during the search, see Gabbert v. Conn, 131 F.3d 793, 800 (9th Cir. 1997), rev’d on other grounds by Conn v. Gabbert, 526 U.S. 286 (1999); see also KRL, 384 F.3d at 1113-14; and

 

·        acquiring false statements from witnesses for use in a prosecution, Milstein, 257 F.3d at 1011.

 

·        See also Tennison v. City & Cty. of San Francisco, 570 F.3d 1078, 1092 (9th Cir. 2009) (holding that homicide inspectors who were not acting as prosecutors or even directly assisting with the presentation of evidence, were not engaged in conduct “intimately associated with the judicial phase” and thus were not entitled to absolute immunity).

Prosecutorial immunity extends to actions during both the pre-trial and post-trial phase of a case.  See Demery, 735 F.2d at 1144.

“Prosecutorial immunity only protects the defendants from [§] 1983 damage claims; it does not protect them from suits for injunctive relief.”  Gobel, 867 F.2d at 1203 n.6.   

(2)     Eligibility
(a)     Attorneys

State prosecutors are entitled to absolute prosecutorial immunity for acts taken in their official capacity.  See Van de Kamp v. Goldstein, 555 U.S. 335, 342-43 (2009); Kalina v. Fletcher, 522 U.S. 118, 123-25 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 (1993); Imbler v. Pachtman, 424 U.S. 409, 427, 430-31 (1976); Waggy v. Spokane Cty. Wash., 594 F.3d 707, 710-11 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1232-33 (9th Cir. 2009); Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005); Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005); KRL v. Moore, 384 F.3d 1105, 1110 (9th Cir. 2004); Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).  Government civil attorneys are also entitled to absolute prosecutorial immunity.  See Fry v. Melaragno, 939 F.2d 832, 837-38 (9th Cir. 1991).

(b)     Agency Officials

Agency officials who perform functions analogous to those of a prosecutor are entitled to absolute prosecutorial immunity.  See Butz v. Economou, 438 U.S. 478, 515, 516-17 (1978); Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 925-26 (9th Cir. 2004); Hirsh v. Justices of Supreme Court of State of Cal., 67 F.3d 708, 715 (9th Cir. 1995) (per curiam); Fry v. Melaragno, 939 F.2d 832, 837-38 (9th Cir. 1991).

(c)      Social Workers

“[S]ocial workers have absolute immunity when they make ‘discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.’”  Beltran v. Santa Clara Cty., 514 F.3d 906, 908 (9th Cir. 2008) (en banc) (per curiam) (quoting Miller v. Gammie, 335 F.3d 889, 896 (9th Cir. 2003) (en banc)); see also Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1108-09 (9th Cir. 2010) (concluding social workers were absolutely immune from suit for their involvement in foster care license revocation proceedings); Meyers v. Contra Costa Cty. Dep’t of Soc. Servs., 812 F.2d 1154, 1157 (9th Cir. 1987).  “To the extent, however, that social workers also make discretionary decisions and recommendations that are not functionally similar to prosecutorial or judicial functions, only qualified, not absolute immunity, is available.”  Miller, 335 F.3d at 898; see also Costanich, 627 F.3d at 1109 (concluding that state social worker not entitled to absolute immunity for investigating charges or for filing declaration in support of guardianship termination proceedings); Beltran, 514 F.3d at 908-09 (concluding that social workers are not entitled to absolute immunity for their investigatory conduct). 

d.      Presidential Immunity

The President is absolutely immune from suit for damages for conduct that is part of the President’s official duties.  See Forrester v. White, 484 U.S. 219, 225 (1988); Nixon v. Fitzgerald, 457 U.S. 731, 756-58 (1982); Fry v. Melaragno, 939 F.2d 832, 836 (9th Cir. 1991); cf. Clinton v. Jones, 520 U.S. 681, 694-95 (1997) (holding no immunity from suit for conduct not taken in official capacity).

e.       Legislative Immunity

Legislators are absolutely immune from suit for damages for conduct that is part of their official duties.  See Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1998); Tenney v. Brandhove, 341 U.S. 367, 378-79 (1951); Norse v. City of Santa Cruz, 629 F.3d 966, 976-77 (9th Cir. 2010) (en banc) (explaining, “[l]ocal legislators are absolutely immune from liability under § 1983 for their legislative acts[,]” but concluding that defendants were not entitled to absolute immunity where decisions were administrative, not legislative.); Schmidt v. Contra Costa Cty., 693 F.3d 1122, 1132 (9th Cir. 2012); Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 959 (9th Cir. 2010); Thornton v. City of St. Helens, 425 F.3d 1158, 1163 (9th Cir. 2005); Kaahumanu v. Cty. of Maui, 315 F.3d 1215, 1219 (9th Cir. 2003); Bechard v. Rappold, 287 F.3d 827, 829 (9th Cir. 2002); Chateaubriand v. Gaspard, 97 F.3d 1218, 1220-21 (9th Cir. 1996); Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir. 1994).  This immunity extends both to suits for damages and suits for prospective relief.  See Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33 (1980); Cmty. House, Inc., 623 F.3d at 959.

f.       Witness Immunity

Both private individuals and government officials who serve as witnesses are absolutely immune from suit for damages with respect to their testimony.  See Briscoe v. LaHue, 460 U.S. 325, 326 (1983); Paine v. City of Lompoc, 265 F.3d 975, 980 (9th Cir. 2001); Franklin v. Terr, 201 F.3d 1098, 1101-02 (9th Cir. 2000); Bouman v. Block, 940 F.2d 1211, 1233 (9th Cir. 1991); Meyers v. Contra Costa Cty. Dep’t of Soc. Servs., 812 F.2d 1154, 1156 (9th Cir. 1987); see also Lisker v. City of Los Angeles, 780 F.3d 1237, 1241 (9th Cir. 2015).  This immunity extends to testimony given at pre-trial hearings, see Holt v. Castaneda, 832 F.2d 123, 127 (9th Cir. 1987), to testimony submitted in an affidavit, see Burns v. Cty. of King, 883 F.2d 819, 823 (9th Cir. 1989) (per curiam), and to testimony before a grand jury, see Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir. 1988).  Absolute witness immunity also extends to preparatory activities ‘inextricably tied’ to testimony, such as conspiracies to testify falsely.” Lisker, 780 F.3d at 1241 (citation omitted).  This immunity is limited to participation as a witness in adversarial hearings.  Cruz v. Kauai Cty., 279 F.3d 1064, 1068 (9th Cir. 2002); see also Paine, 265 F.3d at 981-83; Harris v. Roderick, 126 F.3d 1189, 1198-99 (9th Cir. 1997).

g.       Ineligibility

(1)     Local Governmental Units

Local governmental units are not entitled to absolute immunity.  See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166 (1993); Owen v. City of Independence, 445 U.S. 622, 657 (1980); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978); Lee v. City of Los Angeles, 250 F.3d 668, 679 n.6 (9th Cir. 2001); Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988).

(2)     Prison Officials

Prison officials and correctional officers are not entitled to absolute immunity.  See Procunier v. Navarette, 434 U.S. 555, 561 (1978).  Members of prison disciplinary committees are also not entitled to absolute immunity.  See Cleavinger v. Saxner, 474 U.S. 193, 206 (1985).  For a discussion of prison officials acting under color of state law for purposes of § 1983, see supra I.A.2.b.(2).

(3)     Defense Counsel

Defense counsel, even if court-appointed and compensated, are not entitled to absolute immunity.  See Tower v. Glover, 467 U.S. 914, 923 (1984); Sellars v. Procunier, 641 F.2d 1295, 1299 n.7 (9th Cir. 1981).  For a discussion of public defenders not acting under color of state law for purposes of § 1983, see supra I.A.2.b.(4).

(4)     Police Officers

Police officers are not entitled to absolute immunity.  See Imbler v. Pachtman, 424 U.S. 409, 418-19 (1976); Pierson v. Ray, 386 U.S. 547, 555 (1967); Elliot-Park v. Manglona, 592 F.3d 1003, 1006 (9th Cir. 2010) (stating police officers are entitled only to qualified immunity in § 1983 cases, unlike prosecutors who enjoy absolute immunity).

(5)     Court Reporters

Because court reporters – unlike other judicial officers who have been afforded absolute immunity – do not exercise discretion in fulfilling their official duties, but “are required by statute to ‘record verbatim’ court proceedings,” they are not entitled to absolute immunity.  Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436-37 (1993) (citation omitted); cf. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1134-35 (9th Cir. 2001) (concluding that there was a genuine issue concerning the amount of discretion in the job of the coordinator of accommodations for litigants and witnesses with disabilities).

(6)     Executive Officials

Governors and other high-level state executive officials are not entitled to absolute immunity.  See Scheuer v. Rhodes, 416 U.S. 232, 247-49 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); but cf. Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (holding that governor’s review of parole decisions regarding prisoners convicted of murder pursuant to Article V, § 8(b) of the California Constitution was “functionally comparable” to a judge’s role and was therefore entitled to absolute immunity).

The United States Attorney General is not entitled to absolute immunity for official functions that are not actions taken in her or his role as an attorney.  See Mitchell v. Forsyth, 472 U.S. 511, 520-21 (1985).

Employees of executive branch agencies may also not be entitled to absolute immunity.  See Fry v. Melaragno, 939 F.2d 832, 838 (9th Cir. 1991) (holding that IRS agents are not entitled to absolute immunity).

2.       Qualified Immunity

“[G]overnment officials performing discretionary functions [are entitled to] a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.”  Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citations omitted); see also Wood v. Moss, 134 S. Ct. 2056, 2066-67 (2014) (“The doctrine of qualified immunity protects government officials from liability for civil damages … .”); Krainski v. Nevada ex. Rel. Bd. of Regents, 616 F.3d 963, 968 (9th Cir. 2010); Richardson v. McKnight, 521 U.S. 399, 407-08 (1997); Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).

Qualified immunity is only an immunity from suit for damages, it is not an immunity from suit for declaratory or injunctive relief.  See L.A. Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993); Am. Fire, Theft & Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991).

a.       Basic Principles

(1)     Eligibility

“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).  The Supreme Court has set forth a two-part analysis for resolving government officials’ qualified immunity claims. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).  First, the court must consider whether the facts “[t]aken in the light most favorable to the party asserting the injury . . . show [that] the [defendant’s] conduct violated a constitutional right[.]”  Saucier, 533 U.S. at 201; see also Scott v. Harris, 550 U.S. 372, 377 (2007); Brosseau v. Haugen, 543 U.S. 194, 197 (2004) (per curiam); Hope v. Pelzer, 536 U.S. 730, 736 (2002); Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1060 (9th Cir. 2006); Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002); Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).  Second, the court must determine whether the right was clearly established at the time of the alleged violation.  Saucier, 533 U.S. at 201; Wood v. Moss, 134 S. Ct. 2056, 2066-67 (2014) (“The doctrine of qualified immunity protects government officials from liability for civil damages ‘unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.’”) (quoting Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2080 (2011)); Brosseau, 543 U.S. at 199-201; Hope, 536 U.S. at 739; Garcia v. Cty. of Merced, 639 F.3d 1206, 1208 (9th Cir. 2011); Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009); Inouye, 504 F.3d at 712; Kennedy, 439 F.3d at 1060; Estate of Ford, 301 F.3d at 1050; Sorrels, 290 F.3d at 969. 

Even if the violated right was clearly established at the time of the violation, it may be “difficult for [the defendant] to determine how the relevant legal doctrine . . . will apply to the factual situation the [defendant] confronts. . . . [Therefore, i]f the [defendant’s] mistake as to what the law requires is reasonable ... the [defendant] is entitled to the immunity defense.”  Saucier, 533 U.S. at 205; Kennedy, 439 F.3d at 1061; Estate of Ford, 301 F.3d at 1050; cf. Inouye, 504 F.3d at 712 n.6 (explaining that the inquiry into the reasonableness of the defendant’s mistake is not the “third” step in the Saucier analysis, but rather, is part of the second step of Saucier’s two-step analysis).

Note that Saucier’s framework should not be regarded as an inflexible requirement.  Pearson, 555 U.S. at 236 (explaining the sequence, while “often appropriate,” “should no longer be regarded as mandatory”).  Rather, the “judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”  Id.  However,

the Saucier procedure “is often beneficial” because it “promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable.” 555 U.S., at 236, 129 S. Ct. 808.  Pearson concluded that courts “have the discretion to decide whether that [Saucier] procedure is worthwhile in particular cases.” Id., at 242, 129 S. Ct. 808.

Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014); Bardzik v. Cty. of Orange, 635 F.3d 1138, 1145 n.6 (9th Cir. 2011) (recognizing option to address only the clearly-established step, but concluding that addressing whether there was a constitutional violation was proper under the circumstances); Liberal v. Estrada, 632 F.3d 1064, 1076 (9th Cir. 2011) (explaining that the court may exercise its discretion in deciding which of the two prongs should be addressed first in light of the particular case’s circumstances); Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (recognizing Pearson and addressing only the second prong of the qualified immunity analysis, which was dispositive). 

 

The reasonableness inquiry is objective: “the question 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.” Graham v. Connor, 490 U.S. 386, 397 (1989).  See also Plumhoff, 134 S. Ct. at 2020-21; Castro v. Cty. of Los Angeles, 797 F.3d 654, 663-64 (9th Cir. 2015).

Whether the defendant violated a constitutional right and whether the right was clearly established at the time of the violation are pure legal questions for the court.  See Serrano v. Francis, 345 F.3d 1071, 1080 (9th Cir. 2003); Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir. 2003); see also Kennedy, 439 F.3d at 1059-60 (explaining that whether a clearly established constitutional right was violated is an “abstract issue of law relating to qualified immunity”); Cunningham v. City of Wenatchee, 345 F.3d 802, 807-10 (9th Cir. 2003) (same).  However, “[i]f a genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial.”  Serrano, 345 F.3d at 1077; see also Martinez, 323 F.3d at 1183-85 (holding that the district court erred by granting summary judgment where there were genuine issues of material fact regarding the reasonableness inquiry of the second Saucier prong). 

(a)     Identifying the Right

When identifying the right that was allegedly violated, a court must define the right more narrowly than the constitutional provision guaranteeing the right, but more broadly than all of the factual circumstances surrounding the alleged violation.  See Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1092-93 (9th Cir. 1998); Carnell v. Grimm, 74 F.3d 977, 979-80 (9th Cir. 1996); Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995); Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993).  For example, the statement that the Eighth Amendment guarantees medical care without deliberate indifference to serious medical needs is a sufficiently narrow statement of the right for conducting the clearly established inquiry.  See Kelley, 60 F.3d at 667; see also Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996).

(b)     Clearly Established Right

A government official “cannot be expected to predict the future course of constitutional law, but [the official] will not be shielded from liability” for acts that violate clearly established constitutional rights.  Procunier v. Navarette, 434 U.S. 555, 562 (1978) (citations omitted); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  This inquiry must be “undertaken in light of the specific context of the case.”  Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by Pearson v. Callahan, 555 U.S. 223, 236 (2009).  See also Nelson v. City of Davis, 685 F.3d 867, 883 (9th Cir. 2012); Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1240-41 (9th Cir. 2010).   To be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [the official] is doing violates that right.”  Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002); Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009); Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009); CarePartners, LLC v. Lashway, 545 F.3d 867, 876 (9th Cir. 2008); Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008); Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1060-61 (9th Cir. 2006); Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002); Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002).  The court has stressed that “the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.”  Dunn v. Castro, 621 F.3d 1196, 1201 (9th Cir. 2010).  “Whether the law was clearly established is an objective standard; the defendant’s subjective understanding of the constitutionality of his or her conduct is irrelevant.”  Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) (internal quotation marks and citation omitted).

To conclude that the right is clearly established, the court need not identify an identical prior action.  See Anderson, 483 U.S. at 640; see also Hope, 536 U.S. at 739; Rodis, 558 F.3d at 969; Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008); Kennedy, 439 F.3d at 1065-66; Sorrels, 290 F.3d at 970; Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995); Browning v. Vernon, 44 F.3d 818, 823 (9th Cir. 1995).  First, the court should “‘look to … binding precedent. ’”  Chappell v. Mandeville, 706 F.3d 1052, 1056 (9th Cir. 2013) (quoting See Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)).  Absent binding precedent, the court should consider all relevant precedents, including decisions from the Supreme Court, all federal circuits, federal district courts, and state courts; in addition, the court should consider the likelihood that the Supreme Court or the Ninth Circuit would decide the issue in favor of the person asserting the right.  See Elder v. Holloway, 510 U.S. 510, 512, 516 (1994); see also Chappell, 706 F.3d at 1056; Hope, 536 U.S. at 739-46; Dunn, 621 F.3d at 1203 (stating that court may look to precedent from other circuits); Inouye, 504 F.3d at 714-17; Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004); Osolinski, 92 F.3d at 936, 938 n.2.  For guidance as to when prior law clearly establishes a right, see Saucier, 533 U.S. at 202 (“facts not distinguishable in a fair way from facts presented in the case at hand”).  Compare Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450-51 (9th Cir. 1995) (concluding that Title VII employment-discrimination law concerning sexual harassment could not serve as the basis for a clearly established right for purposes of a sexual-harassment claim brought under a similarly worded provision of Title IX, which seeks to prohibit sex discrimination in education) with Bator v. Hawaii, 39 F.3d 1021, 1028 n.7 (9th Cir. 1994) (finding Title VII case law relevant to determination of clearly established rights under Equal Protection Clause because both are directed at ending gender discrimination).  See also Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1092 n.1 (9th Cir. 1998) (stating that a single district court opinion from out of the circuit is insufficient to demonstrate a clearly established right).

Once a court determines that “the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing [the official’s] conduct.”  Harlow, 457 U.S. at 818-19.

Even if the plaintiff has alleged violations of a clearly established right, the government official is entitled to qualified immunity if he or she made a reasonable mistake as to what the law requires.  See Saucier, 533 U.S. at 205; Kennedy, 439 F.3d at 1061; Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir. 2003); Estate of Ford, 301 F.3d at 1050; Newell v. Sauser, 79 F.3d 115, 118 (9th Cir. 1996); Schroeder v. McDonald, 55 F.3d 454, 461-62 (9th Cir. 1995).

The “existence of a statute or ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable officer would find that conduct constitutional.”  Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).  Such a statute will not shield the official where it “authorizes official conduct which is patently violative of fundamental constitutional principles[.]”  Id.; see also Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010) (recognizing Grossman rule, but choosing to examine the immunity issue according to Saucier’s second prong instead).  Moreover, unlawful enforcement of an otherwise valid statute demonstrates unreasonable behavior depriving the government official of qualified immunity.  See Pierce v. Multnomah Cty., Or., 76 F.3d 1032, 1037 (9th Cir. 1996); Chew v. Gates, 27 F.3d 1432, 1450 (9th Cir. 1994).

(2)     Ineligibility
(a)     Local Governmental Units

Local governmental units are not entitled to a qualified-immunity defense to § 1983 liability.  See Brandon v. Holt, 469 U.S. 464, 473 (1985); Owen v. City of Independence, Mo., 445 U.S. 622, 638 (1980); Hallstrom v. City of Garden City, 991 F.2d 1473, 1482 (9th Cir. 1992); L.A. Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990).  Local governmental units are also unable to rely on the qualified-immunity defense available to municipal employees as a defense to § 1983 claims.  See Hervey v. Estes, 65 F.3d 784, 791 (9th Cir. 1995).

For a discussion of theories of liability applicable to local governmental units, see supra I.A.1.c.(2).

(b)     Municipal Employees

Municipal employees sued in their official capacity are not entitled to qualified immunity.  See Eng v. Cooley, 552 F.3d 1062, 1064 n.1 (9th Cir. 2009); Hallstrom v. City of Garden City, 991 F.2d 1473, 1482 (9th Cir. 1992).

(c)      Private Individuals

The Ninth Circuit has concluded that private individuals are not entitled to qualified immunity in either § 1983 or Bivens actions.  See Clement v. City of Glendale, 518 F.3d 1090, 1096 (9th Cir. 2008); Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002); Conner v. City of Santa Ana, 897 F.2d 1487, 1492 n.9 (9th Cir. 1990); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989).  The Supreme Court has concluded that employees of a private prison management company are not entitled to qualified immunity, but declined to express an opinion as to whether they may have a “good faith” defense.  See Richardson v. McKnight, 521 U.S. 399, 401, 413-14 (1997); see also Jensen v. Lane Cty., 222 F.3d 570, 580 (9th Cir. 2000) +570" Jensen v. Lane County, 222 F.3d 570, 580 (9th Cir.(concluding that private psychiatrist not entitled to qualified immunity); Halvorsen v. Baird, 146 F.3d 680, 685-86 (9th Cir. 1998) (applying Richardson and holding that private detoxification center not entitled to qualified immunity); Ace Beverage Co. v. Lockheed Info. Mgmt. Servs., 144 F.3d 1218, 1219-20 (9th Cir. 1998) (per curiam) (applying Richardson and holding that private firm with minimal government oversight is not entitled to qualified immunity); cf. Clement, 518 F.3d at 1096-97 (concluding that private towing company entitled to invoke “good faith” defense). 

 The Supreme Court has concluded that private individuals who conspire with state officials to violate others’ constitutional rights are not entitled to qualified immunity in § 1983 actions.  Wyatt v. Cole, 504 U.S. 158, 168-69 (1992) (noting in dicta that private defendants could be entitled to a “good faith” defense).

 For a discussion of when private individuals are acting under color of state law for purposes of § 1983, see supra I.A.2.b.(5).

b.      Pleading:  Plaintiff’s Allegations

In Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167 (1993), the Supreme Court left open the question whether the Court’s “qualified immunity jurisprudence would require a heightened pleading standard in cases involving individual government officials.”  After Leatherman, the Supreme Court concluded that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Crawford-El v. Britton, 523 U.S. 574, 594-97 (1998); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-15 (2002) (declining to impose a heightened pleading standard in employment discrimination case, explaining that “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions [such as actions brought under Rule 9(b)].”). 

The Ninth Circuit has also held that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1123-26 (9th Cir. 2002) (overruling Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (“Branch II”), Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (“Branch I”), and their progeny because they imposed a heightened pleading standard); see also Empress LLC v. City of San Francisco, 419 F.3d 1052, 1055-56 (9th Cir. 2005) (explaining that “the logical conclusion of Leatherman, Crawford-El, and Swierkiewicz dictates that a heightened pleading standard should only be applied when the Federal Rules of Civil Procedure so require.”); Miranda v. Clark Cty., Nev., 319 F.3d 465, 470 (9th Cir. 2003) (en banc) (same).      

c.       Pleading:  Affirmative Defense

Qualified immunity has consistently been recognized as an affirmative defense that must be pled by the defendant.  See Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Gomez v. Toledo, 446 U.S. 635, 640 (1980); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993); Benigni v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1988). 

Under the amended 28 U.S.C. § 1915, however, “the court shall dismiss the case at any time if the court determines that the action or appeal seeks monetary relief against a defendant who is immune from such relief.”  28 U.S.C. § 1915(e)(2)(B)(iii); see also 42 U.S.C. § 1997e(c)(1).  Although the Ninth Circuit has not addressed the relationship between this provision and the case-law establishing qualified immunity as an affirmative defense, the provision appears to allow the court to raise the qualified-immunity defense sua sponte in actions where the party is proceeding in forma pauperis. 

Section 1915A authorizes courts to dismiss complaints on similar grounds “before docketing, if feasible or, in any event, as soon as practicable after docketing” where the complaint concerns a prisoner’s conditions of confinement.  28 U.S.C. § 1915A(a) & (b)(2).

d.      Burdens of Proof

The plaintiff bears the burden of proving that the right allegedly violated was clearly established at the time of the violation; if the plaintiff meets this burden, then the defendant bears the burden of establishing that the defendant  reasonably believed the alleged conduct was lawful.  See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 916-17 (9th Cir. 1996); Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995); Neely v. Feinstein, 50 F.3d 1502, 1509 (9th Cir. 1995), overruled in part on other grounds by L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996).  See also Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) (“The plaintiff bears the burden to show that the contours of the right were clearly established.”).

e.       Discovery

The court should not allow any discovery until it has resolved the legal question of whether there is a clearly established right.  See Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Dunn v. Castro, 621 F.3d 1196, 1199 (9th Cir. 2010) (“Qualified immunity confers upon officials “a right, not merely to avoid ‘standing trial,’ but also to avoid the burdens of ‘such pretrial matters as discovery.” (internal quotation marks and citation omitted)); Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir. 1995); Romero v. Kitsap Cty., 931 F.2d 624, 628 n.6 (9th Cir. 1991).

f.       Dismissal

If the court determines that an official is entitled to qualified immunity on any § 1983 claims for damages that are part of the action, the court should dismiss those claims prior to discovery.  See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).

Under the amended 28 U.S.C. § 1915, the court is authorized to dismiss sua sponte an “action or appeal [if it] seeks monetary relief against a defendant who is immune from such relief.”  28 U.S.C. § 1915(e)(2)(B)(iii); see also 42 U.S.C. § 1997e(c)(1).  The court has been given similar authorization with respect to pre-filing review of complaints concerning a prisoner’s conditions of confinement.  See 28 U.S.C. § 1915A.  It is unclear, under the language of these provisions, whether the court should also dismiss claims for injunctive or declaratory relief, to which qualified immunity does not apply, when dismissing an action seeking damages.  

g.       Summary Judgment

Although both the “clearly established right” and “reasonableness” inquiries are questions of law, where there are factual disputes as to the parties’ conduct or motives, the case cannot be resolved at summary judgment on qualified immunity grounds.  See Lolli v. Cty. of Orange, 351 F.3d 410, 421 (9th Cir. 2003); Wilkins v. City of Oakland, 350 F.3d 949, 955-56 (9th Cir. 2003); Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003); Martinez v. Stanford, 323 F.3d 1178, 1183-85 (9th Cir. 2003). 

h.      Interlocutory Appeals

The district court’s rejection of a qualified-immunity defense, insofar as it rests on a question of law, is immediately appealable as a collateral order.  See Behrens v. Pelletier, 516 U.S. 299, 306 (1996); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Wilkinson v. Torres, 610 F.3d 546, 549-50 (9th Cir. 2010); Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 968 (9th Cir. 2010); Rodis v. City & Cty. of San Francisco, 558 F.3d 964, 968 (9th Cir. 2009); Bingue v. Prunchak, 512 F.3d 1169, 1172 (9th Cir. 2008); Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059-60 (9th Cir. 2006); Wilkins v. City of Oakland, 350 F.3d 949, 951-52 (9th Cir. 2003); Cunningham v. City of Wenatchee, 345 F.3d 802, 806-09 (9th Cir. 2003).  See also Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011) (explaining no jurisdiction to review denial of summary judgment to officers on state-law claims where officers disagreed with district court’s interpretation of the facts, because they were not appealing the denial of immunity, but rather the denial of summary judgment).

Thus, the appellate court has jurisdiction to determine whether, taking the plaintiff’s allegations as true, defendants’ conduct violates a clearly established right.”  See Cmty. House, Inc., 623 F.3d at 968; Rodis, 558 F.3d at 968; Bingue, 512 F.3d at 1172-73; Kennedy, 439 F.3d at 1060; Wilkins, 350 F.3d at 951-52; Cunningham, 345 F.3d at 807-09; Thomas v. Gomez, 143 F.3d 1246, 1248 (9th Cir. 1998); Knox v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997).  The appellate court also has jurisdiction to determine whether, even though facts are in dispute, no account of the defendants’ conduct could be considered objectively unreasonable.  See Knox, 124 F.3d at 1107; see also Rodriguez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703, 707 (9th Cir. 2010).  Finally, the appellate court retains jurisdiction where it need only determine whether a factual dispute is material.  See Bingue, 512 F.3d at 1173; Wilkins, 350 F.3d at 951-52; Cunningham v. Gates, 229 F.3d 1271, 1286 (9th Cir. 2000); Thomas, 143 F.3d at 1248; Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1996).

Where, however, the appellate court is being asked to review the record to determine whether there is sufficient evidence to create a genuine issue of fact between the parties, it does not have jurisdiction over the appeal of a denial of qualified immunity.  See Johnson v. Jones, 515 U.S. 304, 319-20 (1995); Kennedy, 439 F.3d at 1059-60; Wilkins, 350 F.3d at 952; Cunningham, 345 F.3d at 807-09; Gates, 229 F.3d at 1286; Thomas, 143 F.3d at 1248-49; Knox, 124 F.3d at 1107.

The denial of qualified immunity may be appealed both at the dismissal and summary judgment stages.  See Behrens, 516 U.S. at 306-11.  If a defendant fails to appeal a denial of qualified immunity, the issue is waived on appeal following a jury verdict.  See Price v. Kramer, 200 F.3d 1237, 1244 (9th Cir. 2000).

3.       Eleventh Amendment Immunity

The Eleventh Amendment to the United States Constitution states that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”  U.S. Const. amend. XI.  “The Amendment . . . enacts a sovereign immunity from suit, rather than a nonwaivable limit on the Federal Judiciary’s subject-matter jurisdiction.”  Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997).

a.       Basic Principles

“The Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state.  Though its language might suggest otherwise, the Eleventh Amendment has long been construed to extend to suits brought against a state by its own citizens, as well as by citizens of other states.”  Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991) (internal citations omitted); see also Tennessee v. Lane, 541 U.S. 509, 517 (2004); Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Clark v. California, 123 F.3d 1267, 1269 (9th Cir. 1997).

The Eleventh Amendment bars suits against state agencies, as well as those where the state itself is named as a defendant.  See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Beentjes v. Placer Cty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir. 2003); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (stating that Board of Corrections is agency entitled to immunity); ldinst    HYPERLINK "http://www.westlaw.com/find/deTaylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency entitled to Eleventh Amendment immunity); cf. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988) (stating that Eleventh Amendment requires examination of the complaint and relief sought to determine whether the state is the “real party in interest”); Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987) (same).  For a discussion of when an agency is an arm of the state, see supra I.A.1.d.

The Eleventh Amendment also bars damages actions against state officials in their official capacity, see Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam), but does not bar suits against state officials seeking prospective relief, see infra I.D.3.b.(2).

Except for suits for prospective relief filed against state officials, the Eleventh Amendment bars suit regardless of the relief sought.  See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Brooks, 951 F.2d at 1053, 1053 n.1; S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 508 (9th Cir. 1990). 

b.      Inapplicability of Amendment

(1)     Local Governmental Units

“The [E]leventh [A]mendment does not bar actions against cities and counties.”  Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.54 (1978); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Beentjes v. Placer Cty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 2005); Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1180 (9th Cir. 2003).

For further discussion of how to establish a local governmental unit’s liability under § 1983, see supra I.A.1.c.(2).

(2)     State Officials
(a)     Official Capacity

The doctrine of Ex Parte Young, 209 U.S. 123 (1908)that the Eleventh Amendment does not bar suits for prospective declaratory or injunctive relief against state officials in their official capacity – is a well-recognized exception to the general prohibition of the Eleventh Amendment.  See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-06 (1984); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997).

“[W]here Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex Parte Young.”  Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996).  The Ninth Circuit has concluded that a statute containing citizen-suit provisions could not have been intended to abrogate the Ex Parte Young exception.  See Nat. Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423-24 (9th Cir. 1996); see also Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997) (holding that action brought under the Americans with Disabilities Act and the Rehabilitation Act could go forward under the Ex Parte Young doctrine).  The Supreme Court has noted that “[a]pplication of the Young exception must reflect a proper understanding of its role in our federal system and respect for state courts instead of a reflexive reliance on an obvious fiction.”  Coeur d’Alene Tribe, 521 U.S. at 270; see Sofamor Danek Group, Inc. v. Brown, 124 F.3d 1179, 1183-85 (9th Cir. 1997).  Since § 1983 contains no scheme for enforcement, its operation is most likely not affected by Seminole’s modification of Ex Parte Young.

For a discussion of how to determine the capacity in which an official is sued, see supra I.A.1.e.(3).

(b)     Personal Capacity

The Eleventh Amendment does not bar suits seeking damages against state officials in their personal capacity.  See Hafer v. Melo, 502 U.S. 21, 30-31 (1991); Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394-95 (9th Cir. 1997); Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam).

For a discussion of how to determine the capacity in which an official is sued, see supra I.A.1.e.(3).

c.       Abrogation

Although Congress can abrogate the states’ Eleventh Amendment immunity under § 5 of the Fourteenth Amendment, such abrogation requires an “unequivocal expression” of Congressional intent, see Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242-43 (1985), superseded by statute on other grounds; see also Tennessee v. Lane, 541 U.S. 509, 517 (2004); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55-56 (1996); Gregory  v. Ashcroft, 501 U.S. 452, 460-61 (1991); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1184-85 (9th Cir. 2003) (per curiam); Clark v. California, 123 F.3d 1267, 1269-70 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387, 1391 (9th Cir. 1993) (en banc), and is a limited power, see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding that Congress did not have the power, pursuant to § 5 of the Fourteenth Amendment, to impose the Age Discrimination in Employment Act, 29 U.S.C. § 623, on the states); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647-48 (1999) (holding that Congress did not have the power, pursuant to section 5 of the Fourteenth Amendment, to impose patent infringement statute, 35 U.S.C. § 271(a), on the states); compare Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001) (holding that Congress did not have the power, pursuant to § 5 of the Fourteenth Amendment, to impose Title I of the Americans with Disabilities Act on the states), with Clark, 123 F.3d at 1269-71 (concluding, with discussion of Flores, that Congress had power to abrogate Eleventh Amendment immunity when enacting Title II of the ADA and Rehabilitation Act pursuant to section 5 of Fourteenth Amendment).

Section 1983 does not express the requisite unequivocal intent to abrogate the states’ Eleventh Amendment immunity from suit.  See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989); Quern v. Jordan, 440 U.S. 332, 342 (1979); Hale, 993 F.2d at 1398; Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988).

Congress cannot abrogate the states’ Eleventh Amendment immunity under its Article I powers.  See Seminole Tribe, 517 U.S. at 72-74; Quillin v. Oregon, 127 F.3d 1136, 1138 (9th Cir. 1997) (per curiam); Nat.Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423 (9th Cir. 1996).  But see Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 819-20 (9th Cir.) (concluding that acceptance of funds under statutory scheme passed pursuant to Article I Spending Power constitutes a waiver of Eleventh Amendment immunity), amended by 271 F.3d 910 (9th Cir. 2001).         

d.      Waiver

States may waive their Eleventh Amendment immunity by making an unequivocal statement that they have consented to suit in federal court.  See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305-06 (1990); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded by statute on other grounds; Edelman v. Jordan, 415 U.S. 651, 673 (1974); Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021-22 (9th Cir. 2010) (concluding the sovereign immunity defense was waived when community college district failed to pursue that defense while litigating the suit on the merits); Krainski v. Nevada ex rel. Bd. of Regents, 616 F.3d 963, 967 (9th Cir. 2010); Holley v. Cal. Dep’t of Corr., 599 F.3d 1108, 1111-12 (9th Cir. 2010); Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007); Quillin v. Oregon, 127 F.3d 1136, 1138-39 (9th Cir. 1997) (per curiam); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394 (9th Cir. 1997); Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1988).

Acceptance of funds under a statute passed pursuant to the Spending Power constitutes a waiver of Eleventh Amendment immunity.  See Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 793 (9th Cir. 2004) (per curiam); Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam); Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 819-20 (9th Cir.), amended by 271 F.3d 910 (9th Cir. 2001); Clark v. California, 123 F.3d 1267, 1271 (9th Cir. 1997).

A state’s act of removing a lawsuit from state court to federal court waives its Eleventh Amendment immunity.  See Lapides v. Bd. of Regents, 535 U.S. 613, 616 (2002); Embury v. King, 361 F.3d 562, 565-66 (9th Cir. 2004); Bank of Lake Tahoe v. Bank of Am., 318 F.3d 914, 918-19 (9th Cir. 2003).

Waiver in a predecessor lawsuit does not carry over into subsequent actions.  See City of S. Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir. 2002).

e.       Violations of State Law

The Eleventh Amendment bars suits in federal court against states on the basis of violations of state law.  See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124-25 (1984); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973-74 (9th Cir. 2004); Ashker v. Cal. Dep’t of Corr., 112 F.3d 392, 394-95 (9th Cir. 1997).

f.       Burden of Proof

The party asserting Eleventh Amendment immunity bears the burden of proof.  See Del Campo v. Kennedy, 517 F.3d 1070, 1075 (9th Cir. 2008); Hill v. Blind Indus. & Servs. of Md., 201 F.3d 1186 (9th Cir. 2000) (order); Hyland v. Wonder, 117 F.3d 405, 413 (9th Cir.), amended by 127 F.3d 1135 (9th Cir. 1997); ITSI TV Prods., Inc. v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993).

g.       Interlocutory Appeals

“It is settled that immediate appeals may be taken from orders denying claims of . . . sovereign immunity granted to the states under the Eleventh Amendment[.]”  Alaska v. United States, 64 F.3d 1352, 1354 (9th Cir. 1995); see also Del Campo v. Kennedy, 517 F.3d 1070, 1074 (9th Cir. 2008); Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 792 (9th Cir. 2004) (per curiam); Clark v. California, 123 F.3d 1267, 1269 (9th Cir. 1997) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993)).

E.      Remedies

1.       Damages

a.       Compensatory

“A plaintiff who establishes liability for deprivations of constitutional rights actionable under 42 U.S.C. § 1983 is entitled to recover compensatory damages for all injuries suffered as a consequence of those deprivations.”  Borunda v.  Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988); see also Smith v. Wade, 461 U.S. 30, 52 (1983) (“Compensatory damages . . . are mandatory.”).  The Supreme Court has held that “no compensatory damages [may] be awarded for violation of [a constitutional] right absent proof of actual injury.”  Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986).

Compensatory damages include actual losses, mental anguish and humiliation, impairment of reputation, and out-of-pocket losses.  See Borunda, 885 F.2d at 1389; Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987); Chalmers v. City of Los Angeles, 762 F.2d 753, 760-61 (9th Cir. 1985). “[D]amages in § 1983 actions are not to be assessed on the basis of the abstract ‘value’ or ‘importance’ of the infringed constitutional right.”  Sloman v. Tadlock, 21 F.3d 1462, 1472 (9th Cir. 1994).  

Municipalities can be held liable for compensatory damages.  See Owen v. City of Independence, 445 U.S. 622, 657 (1980); Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996).

Although mental and emotional distress damages are available as compensatory damages under § 1983, no compensatory damages are to be awarded for the mere deprivation of a constitutional right.  See Carey v. Piphus, 435 U.S. 247, 264 (1978).  For example, where a plaintiff is alleging a procedural due process violation, the plaintiff will not be entitled to compensatory damages, “[i]f, after post-deprivation procedure, it is determined that the deprivation was justified,” because the plaintiff has suffered no actual injuries.  Raditch v. United States, 929 F.2d 478, 482 n.5 (9th Cir. 1991); see also Merritt v. Mackey, 932 F.2d 1317, 1322-23 (9th Cir. 1991); Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 781 (9th Cir. 1982).  Moreover, under the Prison Litigation Reform Act, “[n]o federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury.”  42 U.S.C. § 1997e(e).  For further discussion of this provision, see infra IV.F.

b.      Punitive 

Punitive damages are available under § 1983.  See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 17 (1991); Kentucky v. Graham, 473 U.S. 159, 167 n.13 (1985); Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005); Morgan v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 577 n.21 (1984).  Punitive damages are available even when the plaintiff is unable to show compensable injury.  See Smith v. Wade, 461 U.S. 30, 55 n.21 (1983); Davis v. Mason Cty., 927 F.2d 1473, 1485 (9th Cir. 1991), superseded by statute on other grounds as stated in Davis v. City of San Francisco, 976 F.2d 1536 (9th Cir. 1992), vacated in part on other grounds by 984 F.2d 345 (9th Cir. 1993) (order).

Municipalities are not liable for punitive damages.  See Graham, 473 U.S. at 167 n.13; Smith, 461 U.S. at 36 n.5; City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Mitchell v. Dupnik, 75 F.3d 517, 527 (9th Cir. 1996).  State officials sued in their official capacity are also immune from punitive damages.  See Mitchell, 75 F.3d at 527.

Punitive damages are awarded in the jury’s discretion.  See Smith, 461 U.S. at 54; Woods v. Graphic Commc’ns, 925 F.2d 1195, 1206 (9th Cir. 1991).  The jury must find either that the defendant acted with an evil motive or demonstrated reckless indifference to the constitutional rights of the plaintiff.  See Smith, 461 U.S. at 56; Dang, 422 F.3d at 807-09 (holding “that oppressive conduct is a proper predicate for punitive damages under § 1983”); Mitchell, 75 F.3d at 527 n.7; Morgan, 997 F.2d at 1255; Bouman v. Block, 940 F.2d 1211, 1233 (9th Cir. 1991).  The jury must also “make ‘a discretionary moral judgment’ that the ‘conduct merit[s] a punitive award.’” Woods, 925 F.2d at 1206 (quoting Smith, 461 U.S. at 52).

c.       Presumed 

“Damages are not presumed to flow from every constitutional violation.  Presumed damages are appropriate when there is a great likelihood of injury coupled with great difficulty in proving damages.”  Trevino v. Gates, 99 F.3d 911, 921 (9th Cir. 1996) (citing Carey v. Piphus, 435 U.S. 247, 263 (1978)).  Presumed damages should not be awarded where compensatory damages have been awarded.  See Trevino, 99 F.3d at 921-22.

d.      Nominal 

Nominal damages must be awarded if the plaintiff proves that his or her constitutional rights have been violated.  See Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Hazel v. Crofoot, 727 F.3d 983, 991-92 n.6 (9th Cir. 2013); Cummings v. Connell, 402 F.3d 936, 942-46 (9th Cir. 2005); Schneider v. Cty. of San Diego, 285 F.3d 784, 794-95 (9th Cir. 2002); Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1996); Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993); Draper v. Coombs, 792 F.2d 915, 921-22 (9th Cir. 1986).  See also Guy v. City of San Diego, 608 F.3d 582, 587 (9th Cir. 2010); Mahach-Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010) (explaining that in a civil rights suit for damages, the award of nominal damages highlights the plaintiff’s failure to prove actual, compensable injury).

2.       Injunctive Relief

Section 1983 is an exception to the Anti-Injunction Act, 28 U.S.C. § 2283, which establishes that federal courts may not enjoin state-court proceedings unless expressly authorized to do so by Congress.  See Mitchum v. Foster, 407 U.S. 225, 242-43 (1972); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984).  This does “not displace the normal principles of equity, comity and federalism that should inform the judgment of federal courts when asked to oversee state law enforcement authorities.”  City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983); Mitchum, 407 U.S. at 243.  In fact, injunctive relief should be used “sparingly, and only . . . in clear and plain case[s].”  Rizzo v. Goode, 423 U.S. 362, 378 (1976) (citation and internal quotation marks omitted).

Where the prisoner is challenging conditions of confinement and is seeking injunctive relief, transfer to another prison renders the request for injunctive relief moot absent some evidence of an expectation of being transferred back.  See Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam); see also Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). Compare Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013) (instructing, on remand, the district court to consider whether claim for injunctive relief is moot as to a prison official who had been transferred to another prison, and no longer worked at the facility in question).

a.       Law Prior to Enactment of the Prison Litigation Reform Act

Prior to enactment of the Prison Litigation Reform Act, a court could award permanent injunctive relief “only if the wrongs [were] ongoing or likely to recur.”  Fed. Trade Comm’n v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985); LaDuke v. Nelson, 762 F.2d 1318, 1323-24 (9th Cir. 1985), amended by 796 F.2d 309 (9th Cir. 1986).

Formerly, the court could award preliminary injunctive relief where the plaintiff showed (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in the plaintiff’s favor.  See Teamsters Joint Council No. 42 v. Int’l Bhd. of Teamsters, AFL-CIO, 82 F.3d 303, 307 (9th Cir. 1996); Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990); Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 F.2d 1374, 1376 (9th Cir. 1985).

Under the former standard, the loss of money – or an injury that could be measured in damages – was not considered irreparable.  See Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1334-35 (9th Cir. 1995), superseded by statute on other grounds as stated in Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1158-59 (9th Cir. 2011); Oakland Tribune, 762 F.2d at 1376-77.

b.      Law after Enactment of the Prison Litigation Reform Act

The Prison Litigation Reform Act (“PLRA”) made three changes with respect to awarding injunctive relief in civil actions concerning prison conditions.  “Although the PLRA significantly affects the type of prospective injunctive relief that may be awarded, it has not substantially changed the threshold findings and standards required to justify an injunction.”  Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001); see also Hallett v. Morgan, 296 F.3d 732, 743-44 (9th Cir.  2002).

First, the PLRA states that:

[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.  The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 

18 U.S.C. § 3626(a)(1)(A) (1997).  For a similar standard with respect to temporary restraining orders and preliminary injunctive relief see 18 U.S.C. § 3626(a)(2). 

Second, the PLRA permits a defendant to seek the termination or modification of prospective relief where such relief fails to meet the above standard.  See 18 U.S.C. § 3626(b)(2).  The Ninth Circuit has concluded that this provision is constitutional.  See Gilmore v. California, 220 F.3d 987, 1008 (9th Cir. 2000).  The burden is on the state, however, to show excess of constitutional minimum.  See id. at 1008.

Third, the standards governing the appropriate scope of injunctive relief also govern the appropriate scope of private settlements unless the private settlement states that it is not subject to court enforcement except for the “reinstatement of the civil proceeding that the agreement settled.”  18 U.S.C. § 3626(c)(2).

These new requirements apply to all pending cases.  See Hallett, 296 F.3d at 742-43; Oluwa v. Gomez, 133 F.3d 1237, 1239-40 (9th Cir. 1998).  For further discussion of these provisions, see infra IV.G.

3.       Declaratory Relief

“A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.”  Eccles v. Peoples Bank of Lakewood Vill., Cal., 333 U.S. 426, 431 (1948); see also Hewitt v. Helms, 482 U.S. 755, 762-63 (1987); Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962) (per curiam); Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 533 (9th Cir. 2008); Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998) (en banc); Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103, 1112 (9th Cir. 1987).  “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and afford relief from the uncertainty and controversy faced by the parties.”  United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc) (per curiam); see also L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992); Zolin, 812 F.2d at 1112.  It is unnecessary to settle the entire controversy; it is enough if “a substantial and important question currently dividing the parties” is resolved.  Eu, 979 F.2d at 703-04.

F.      Exhaustion of Remedies

1.       State Remedies

Generally, exhaustion of state judicial or state administrative remedies is not a prerequisite to bringing an action under § 1983.  Patsy v. Bd. of Regents, 457 U.S. 496, 500 (1982) (“[W]e have on numerous occasions rejected the argument that a § 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies.”); Monroe v. Pape, 365 U.S. 167, 183 (1961) (“The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked.”), overruled on other  grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005). 

Exhaustion of state tort claim procedures is not required.  See Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999), overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001).

When a state prisoner’s otherwise valid § 1983 complaint seeks speedier release from confinement however, the prisoner must proceed by way of a federal habeas corpus proceeding, which does require the exhaustion of state remedies.  Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).  Likewise, if a prisoner seeks to challenge the validity of a conviction or sentence, the prisoner must first demonstrate that the conviction or sentence has been successfully overturned.  See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997); Heck v. Humphrey, 512 U.S. 477, 483-87 (1994).

For further discussion of the Preiser and Heck doctrines, see infra. I. J.

2.       Prison Administrative Remedies

Under the former version of 42 U.S.C. § 1997e, a prisoner was required to exhaust administrative remedies prior to filing the § 1983 action where the administrative procedures had been certified by the Attorney General or a federal court as meeting certain statutorily defined criteria.  See 42 U.S.C. § 1997e(b) (1994).       

Currently, under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to prison conditions under . . . [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”  42 U.S.C. § 1997e(a); see also McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (“Where Congress specifically mandates, exhaustion is required.”), superseded by statute as stated in Booth v. Churner, 532 U.S. 731 (2001); Morton v. Hall, 599 F.3d 942, 945 (9th Cir. 2010).  But see 42 U.S.C. § 1997e(c)(2) (where court concludes claim is frivolous, fails to state a claim, or is brought against defendants who are immune from suit for damages, the court may dismiss without first requiring exhaustion). 

“[T]he PLRA exhaustion requirement requires proper exhaustion.”  Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Sapp v. Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010); Harvey v. Jordan, 605 F.3d 681, 683-84 (9th Cir. 2010).  Therefore, “a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit in federal court[.]”  Woodford v. Ngo, 548 U.S. at 88; see also Sapp, 623 F.3d at 621-27 (explaining proper exhaustion, and recognizing an exception to the requirement where a prison official renders administrative remedies effectively unavailable); Harvey, 605 F.3d at 684-86 (concluding that inmate failed to exhaust administrative remedies for excessive force claim, but that he exhausted remedies for due process claim when officials purported to grant relief that resolved his grievance to his satisfaction); Ngo v. Woodford, 539 F.3d 1108, 1109-10 (9th Cir. 2008) (on remand from the Supreme Court, court affirmed dismissal for failure to exhaust administrative remedies and rejected continuing violations theory). 

Prisoners are required to exhaust prison administrative procedures regardless of the type of relief sought and the type of relief available through administrative procedures.  See Booth, 532 U.S. at 741; see also Morton, 599 F.3d at 945 (explaining that an inmate seeking only money damages must still complete a prison administrative process that could provide some relief, although no money, in order to exhaust administrative remedies).  The exhaustion requirement applies to all claims relating to prison life that do not implicate the duration of the prisoner’s sentence.  See Porter v. Nussle, 534 U.S. 516, 524-32 (2002); see also Roles v. Maddox, 439 F.3d 1016, 1018 (9th Cir. 2006).  A prisoner’s participation in an internal investigation of official conduct does not constitute constructive exhaustion of administrative remedies.  See Panaro v. City of N. Las Vegas, 432 F.3d 949, 953-54 (9th Cir. 2005).   

Prisoners must exhaust their administrative remedies prior to filing suit, not during the pendency of the suit.  See McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (per curiam) (requiring dismissal without prejudice where a prisoner “d[oes] not exhaust his administrative remedies prior to filing suit but is in the process of doing so when a motion to dismiss is filed.”); see also Rhodes v. Robinson, 621 F.3d 1002, 1006-07 (9th Cir. 2010) (holding that exhaustion requirement is satisfied so long as prisoner exhausted his administrative remedies with respect to new claims asserted in second amended complaint before tendering that complaint for filing); Vaden v. Summerhill, 449 F.3d 1047, 1150-51 (9th Cir. 2006) (holding that an action is “brought” for purposes of the PLRA when the complaint is tendered to the district clerk, not when it is subsequently filed pursuant to the grant of a motion to proceed in forma pauperis; thus, a prisoner must exhaust his administrative remedies before sending his complaint to the district court). 

The PLRA exhaustion requirement “applies with equal force to prisoners held in private prisons.”  Roles, 439 F.3d at 1017.     

The PLRA requires administrative exhaustion of Americans with Disabilities Act (“ADA”) and Rehabilitation Act claims.  O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059-62 (9th Cir. 2007); Butler v. Adams, 397 F.3d 1181, 1182-83 (9th Cir. 2005).  For further discussion of the ADA and Rehabilitation Act in the prison context, see infra III.B.6. 

Exhaustion is not a jurisdictional requirement for bringing an action.  See Rumbles v. Hill, 182 F.3d 1064, 1067-68 (9th Cir. 1999), overruled on other grounds by Booth, 532 U.S. 731.  Moreover, failure to exhaust is an affirmative defense that defendants must raise and prove.  See Jones v. Bock, 549 U.S. 199, 212-17 (2007) (explaining that inmates are not required to plead specifically or demonstrate exhaustion in their complaints); Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.) (en banc), cert. denied sub nom. Scott v. Albino, 135 S. Ct. 403 (2014); Nunez v. Duncan, 591 F.3d 1217, 1223-26 (9th Cir. 2010) (explaining that lack of exhaustion must be raised as a defense, and that failure to exhaust may be excused in certain circumstances). “[A] failure to exhaust is more appropriately handled under the framework of the [Federal Rules of Civil Procedure] than under an “unenumerated” (that is, non-existent) rule.” Albino, 747 F.3d at 1166 (quotation in the original).

 

In the rare event that a failure to exhaust is clear on the face of the complaint, a defendant may move for dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence proving failure to exhaust in order to carry their burden. If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts.

Albino, 747 F.3d at 1166.

                            

An inmate’s compliance with the PLRA exhaustion requirement as to some, but not all claims does not warrant dismissal of the entire action.  Jones, 549 U.S. at 219-24; Lira v. Herrera, 427 F.3d 1164, 1175 (9th Cir. 2005) (rejecting a total exhaustion requirement and holding that where a prisoner’s complaint contains both exhausted and unexhausted claims, a district court should dismiss only the unexhausted claims).  A prisoner may amend her or his complaint to allege only exhausted claims.  See Lira, 427 F.3d 1175-76 (explaining that where the exhausted and unexhausted claims are closely related and difficult to untangle, the proper approach is to dismiss the defective complaint with leave to amend to allege only fully exhausted claims); Bennett v. King, 293 F.3d 1096, 1098 (9th Cir. 2002).

Civil detainees are not “prisoners” within the meaning of the PLRA and therefore are not subject to the exhaustion requirements.  Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000); see also Talamantes v. Leyva, 575 F.3d 1021, 1023-24 (9th Cir. 2009).                   

“[O]nly those individuals who are prisoners (as defined by 42 U.S.C. § 1997e(h)) at the time they file suit must comply with the exhaustion requirements of 42 U.S.C. § 1997e(a).”  Talamantes, 575 F.3d at 1024 (concluding that because Talamantes was released from custody over a year before filing his action in federal court, he was not required to exhaust administrative remedies before filing his action).

For further discussion of the PLRA, see infra IV.E.

Note that because the PLRA requires exhaustion only of those administrative remedies “as are available,” the PLRA does not require exhaustion when circumstances render administrative remedies “effectively unavailable.”  See Sapp, 623 F.3d at 822-23; Nunez, 591 F.3d at 1223-26 (holding that Nunez’s failure to timely exhaust his administrative remedies was excused because he took reasonable and appropriate steps to exhaust his claim and was precluded from exhausting not through his own fault but by the warden’s mistake).  [F]ailure to exhaust a remedy that is effectively unavailable does not bar a claim from being heard in federal court.” McBride v. Lopez,  No. 12-17682, --- F.3d ----, 2015 WL 7434623, at *3-4 (9th Cir. Nov. 24, 2015) (as amended) (holding that “the threat of retaliation for reporting an incident can render the prison grievance process effectively unavailable and thereby excuse a prisoner’s failure to exhaust administrative remedies”).

G.      Statute of Limitations

1.       General Principles

Because § 1983 contains no specific statute of limitations, federal courts should borrow state statutes of limitations for personal injury actions in § 1983 suits.  See Wallace v. Kato, 549 U.S. 384, 387 (2007); Wilson v. Garcia, 471 U.S. 261, 276 (1985), superseded by statute on other grounds as stated in Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369 (2004); Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 (9th Cir. 2011) (“The statute of limitations applicable to an action pursuant to 42 U.S.C. § 1983 is the personal injury statute of limitations of the state in which the cause of action arose.”); Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Lukovsky v. City of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008); Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th Cir. 2007); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004); Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002); Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000) (per curiam); TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); cf. 28 U.S.C. § 1658 (creating a uniform four-year limitations period for civil actions arising under federal statutes that do not specify a limitations period, so long as the cause of action was created by Congress after December 1, 1990).

 Federal courts should also borrow all applicable provisions for tolling the limitations period found in state law.  See Wallace, 549 U.S. at 394; Hardin v. Straub, 490 U.S. 536, 539 (1989); Bd. of Regents v. Tomanio, 446 U.S. 478, 484-85 (1980); Douglas, 567 F.3d at 1109; Canatella, 486 F.3d at 1132; Jones, 393 F.3d at 927; Lucchesi v. Bar-O Boys Ranch, 353 F.3d 691, 694 (9th Cir. 2003); Sain, 309 F.3d at 1138; Johnson, 207 F.3d at 653; TwoRivers, 174 F.3d at 992. Also, the “statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.”  Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005).

On the other hand, “[f]ederal law determines when a cause of action accrues and the statute of limitations begins to run for a § 1983 claim.  A federal claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.”  Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991) (citations and internal quotation marks omitted); see also Wallace, 549 U.S. at 388; Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014); Douglas, 567 F.3d at 1109; Lukovsky, 535 F.3d at 1048; Canatella, 486 F.3d at 1133; Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926-27 (9th Cir. 2004); Johnson, 207 F.3d at 653; cf. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1289-93 (9th Cir. 2006) (holding that “a federal court borrowing a state’s time period for filing suit brought under federal law should not also borrow the state’s time limits for serving the complaint”); Sain, 309 F.3d at 1138 (holding that a § 1983 action is commenced in federal district court for purposes of the statute of limitations when the complaint is filed pursuant to the Federal Rules of Civil Procedure, not pursuant to state civil procedure rules). In Rosales-Martinez, the court held the statute of limitations for a prisoner to bring a § 1983 action commenced when the state court vacated the prisoner’s convictions.  753 F.3d at 896 (reversing the district court’s dismissal of the action as untimely, because the wrongful conviction claims did not accrue until his convictions were vacated).  See also Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014) (Fifth Amendment claim accrued when initial conviction overturned).

Federal courts should apply federal law, not state law, in deciding whether to apply an amended statute of limitations retroactively.  See Fink v. Shedler, 192 F.3d 911, 914-15 (9th Cir. 1999) (explaining that where the state has modified or eliminated the tolling provision relating to the disability of incarceration, the court will apply it retroactively only where manifest injustice would not result); TwoRivers, 174 F.3d at 993-96.

2.       States’ Personal-Injury Statutes of Limitations

                     Alaska:  two years, see DeNardo v. Murphy, 781 F.2d 1345, 1347 (9th Cir. 1986).

                     Arizona:  two years, see Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004); De Luna v. Farris, 841 F.2d 312, 313 (9th Cir. 1988).    

                     California: two years, see Jackson v. Barnes, 749 F.3d 755, 761 (9th Cir. 2014); Comm. Concerning Cmty. Improvement v. City of Modesto, 583 F.3d 690, 701 n.3 (9th Cir. 2009); Canatella v. Van De Kamp, 486 F.3d 1128, 1132-33 (9th Cir. 2007) (explaining that the current version of California’s personal-injury statute of limitations, which became effective on January 1, 2003, does not apply retroactively; therefore, “any cause of action that was more than one-year old as of January 1, 2003 would be barred under the previous one-year statute of limitations.”); Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004) (same); see also Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031, 1041 n.8 (9th Cir. 2011) (applying one year limitations period because the extension of the statute of limitations does not apply to claims under § 1983 already barred).

                     Guam:  two years, see Ngiraingas v. Sanchez, 858 F.2d 1368, 1375 (9th Cir. 1988), aff’d on other grounds by 495 U.S. 182 (1990).

                     Hawaii:  two years, see Haw. Rev. Stat. § 657-7; cf. Hilao v. Estate of Marcos, 103 F.3d 767, 773 (9th Cir. 1996).

                     Idaho:  two years, see Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004); Hallstrom v. City of Garden City, 991 F.2d 1473, 1476 (9th Cir. 1992) (citing Idaho Code § 5-219(4)).

                     Montana:  three years, see Harvey v. Waldron, 210 F.3d 1008, 1013 (9th Cir. 2000) (citing Mont. Code Ann. § 27-2-204(1)), overruled in part on other grounds by Wallace v. Kato, 549 U.S. 384 (2007).

                     Nevada:  two years, see Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014); Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (per curiam) (citing Nev. Rev. Stat. 11.190(4)(c), (e)).

                     Northern Mariana Islands:  two years, see 7 N. Mar. I. Code § 2503(d); see also Nw. Airlines, Inc. v. Camacho, 296 F.3d 787, 789 (9th Cir. 2002).

                     Oregon:  two years, see Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Sain v. City of Bend, 309 F.3d 1134, 1139-40 (9th Cir. 2002); Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (per curiam).

                     Washington:  three years, see Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991); Joshua v. Newell, 871 F.2d 884, 886 (9th Cir. 1989).        

3.       Dismissal

“A statute of limitation defense may be raised by a motion to dismiss if the running of the limitation period is apparent on the face of the complaint.”  Vaughan v. Grijalva, 927 F.2d 476, 479 (9th Cir. 1991); see also Rosales-Martinez v. Palmer, 753 F.3d 890, 895 (9th Cir. 2014) (district court granted motion to dismiss the action as time-barred); Estate of Blue v. Cty. of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997).  Where a defendant has not waived the statute of limitations issue, the district court may dismiss the case on timeliness grounds even if the issue is not raised in the motion before the court.  See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 686-87 (9th Cir. 1993).

Generally, however, the question of equitable tolling cannot be decided on a motion to dismiss.  See Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995); Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993).

H.      Attorney’s Fees

1.       Prison Litigation Reform Act (42 U.S.C. § 1997e(d))

The Prison Litigation Reform Act (“PLRA”) modified the criteria for awarding attorney’s fees in cases brought by prisoners. 

The fee awarded must be (1) “directly and reasonably incurred in proving an actual violation of the plaintiff’s rights protected by a statute pursuant to which a fee may be awarded” under 42 U.S.C. § 1988; and (2) “proportionately related to the court ordered relief for the violation;” or (3) “directly and reasonably incurred in enforcing the relief ordered for the violation.”  42 U.S.C. § 1997e(d)(1).  Where the action results in a monetary judgment, a portion of the judgment – not to exceed 25 percent – shall be used to pay attorney’s fees.  See id. § 1997e(d)(2).  “If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.”  Id.  Finally, “[n]o award of attorney’s fees in an action [brought by a prisoner] shall be based on an hourly rate greater than 150 percent of the hourly rate established under [18 U.S.C. § 3006A].”  Id. § 1997e(d)(3); see also Dannenberg v. Valadez, 338 F.3d 1070, 1073-75 (9th Cir. 2003) (holding that § 1997e(d), limiting defendants’ liability for attorney’s fees to 150 percent of any monetary judgment, is inapplicable where prisoner secures both monetary and injunctive relief).

The PLRA limits attorney’s fees for services performed after the effective date, but not for those performed prior to the effective date.  See Martin v. Hadix, 527 U.S. 343, 347 (1999); Webb v. Ada Cty., 285 F.3d 829, 837-38 (9th Cir. 2002).  For further discussion of these provisions, see infra IV.I.

2.       42 U.S.C. § 1988

For a discussion of limitations on attorney’s fees awards to plaintiffs in prisoner cases, see supra I.H.

a.       General Principles

42 U.S.C. § 1988(b) provides for an award of attorney’s fees to prevailing parties if the action is brought under certain enumerated statutes, including § 1983.  See Sole v. Wyner, 551 U.S. 74, 77 (2007); Gonzalez v. City of Maywood, 729 F.3d 1196, 1199 (9th Cir. 2013); La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010); Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 904 (9th Cir. 2005); Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005); Cummings v. Connell, 402 F.3d 936, 946 (9th Cir. 2005); Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir. 1997).

“The purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances.”  Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation and internal quotation marks omitted); see Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006); Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir. 1992).

“Accordingly, a prevailing plaintiff should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.”  Hensley, 461 U.S. at 429 (citation and internal quotation marks omitted); see also Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989); Thomas, 410 F.3d at 647; Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995) (order).

b.      Determining when a Plaintiff is a “Prevailing Party”

“In order to qualify as a prevailing party, a plaintiff must have succeeded on the merits of at least some of its claims.”  Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1489 (9th Cir. 1995); see also Sole v. Wyner, 551 U.S. 74, 82 (2007); Hewitt v. Helms, 482 U.S. 755, 759-60 (1987); Cummings v. Connell, 402 F.3d 936, 946 (9th Cir. 2005).  “In short, a plaintiff ‘prevails’ when actual relief on the merits of [the plaintiff’s] claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”  Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); see also Sole, 551 U.S. at 82-83; Tex. Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989); Gerling Global Reinsurance Corp. of Am. v. Garamendi, 400 F.3d 803, 806 (9th Cir.), amended by 410 F.3d 531 (9th Cir. 2005) (order); Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995) (order).  “Success is [also] measured . . . in terms of the significance of the legal issue on which the plaintiff prevailed and the public purpose the litigation served.”  Morales v. City of San Rafael, 96 F.3d 359, 365 (9th Cir. 1996), amended by 108 F.3d 981 (9th Cir. 1997) (order); see also McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009) (holding “that attorney’s fees awarded under 42 U.S.C. § 1988 must be adjusted downward where the plaintiff has obtained limited success on his pleaded claims, and the result does not confer a meaningful public benefit.”); Hashimoto v. Dalton, 118 F.3d 671, 678 (9th Cir. 1997).

This change of status must be “judicially sanctioned” in the form of a judgment or consent decree; voluntary changes in behavior are insufficient.  See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05 (2001); see also Watson v. Cty. of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) (explaining that a “preliminary injunction issued by a judge carries all the ‘judicial imprimatur’ necessary to satisfy Buckhannon.”); Labotest, Inc. v. Bonta, 297 F.3d 892, 895 (9th Cir. 2002) (holding that “a plaintiff who obtains a court order incorporating an agreement that includes relief the plaintiff sought in the lawsuit is a prevailing party entitled to attorney’s fees under 42 U.S.C. § 1988.”).

A plaintiff who wins only nominal damages may be a prevailing party under § 1988.  See Farrar, 506 U.S. at 112; Guy v. City of San Diego, 608 F.3d 582, 588 (9th Cir. 2010); Mahach-Watkins v. Depee, 593 F.3d 1054, 1059 (9th Cir. 2010), cert. denied, 562 U.S. 1134 (2011); Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 904 (9th Cir. 2005); Cummings, 402 F.3d at 946; Friend, 72 F.3d at 1390 n.1; Wilcox v. City of Reno, 42 F.3d 550, 554 (9th Cir. 1994).  If the plaintiff sought compensatory damages, and only received nominal damages, however, an attorney’s fee award may be inappropriate.  See Farrar, 506 U.S. at 115; Guy, 608 F.3d at 588-89; Mahach-Watkins, 593 F.3d at 1059; Benton, 421 F.3d at 904-06; Cummings, 402 F.3d at 946-47; Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1994); Wilcox, 42 F.3d at 554-55.

Where the plaintiff sought primarily injunctive relief, the lack of a monetary judgment does not mean that the plaintiff is not a prevailing party.  See Friend, 72 F.3d at 1390; see also Gerling Global Reinsurance Corp., 400 F.3d at 806 (holding that plaintiffs were prevailing parties because they obtained “all of the relief they sought in their lawsuit – a permanent injunction”); Watson, 300 F.3d at 1095-96 (explaining that a plaintiff who obtains a preliminary injunction but fails to prevail on his or her other claims is a prevailing party for purposes of § 1988 because relief in the form of a permanent injunction had become moot).  However, a plaintiff is not a prevailing party if the “achievement of a preliminary injunction . . . is reversed, dissolved, or otherwise undone by the final decision in the same case.”  Sole, 551 U.S. at 83.

Where a declaratory judgment affects the behavior of the defendant towards the plaintiff, it is sufficient to serve as the basis for an award of fees.  See Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam).  “[A] favorable judicial statement of law in the course of litigation,” however, is insufficient “to render [the plaintiff] a ‘prevailing party.’”  Hewitt v. Helms, 482 U.S. 755, 763 (1987); see also Farrar, 506 U.S. at 110.

“Litigation that results in an enforceable settlement agreement can confer ‘prevailing party’ status on a plaintiff.”  La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010).  To determine whether a settlement agreement confers prevailing party status on a plaintiff, the court has “used a three-part test, looking at: ‘(1) judicial enforcement; (2) material alteration of the legal relationship between the parties; and (3) actual relief on the merits of [the plaintiff's] claims.’”  Id. (quoting Saint John’s Organic Farm v. Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054, 1059 (9th Cir. 2009)).

Where the plaintiff is successful on only some claims, the court must determine whether the successful and unsuccessful claims were related.  See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1063 (9th Cir. 2006); Dang v. Cross, 422 F.3d 800, 812-13 (9th Cir. 2005); O’Neal v. City of Seattle, 66 F.3d 1064, 1068 (9th Cir. 1995).  If the claims are unrelated, then the fee award should not include time spent on unsuccessful claims; if the claims are related, “then the court must . . . [determine] the ‘significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended.’”  O’Neal, 66 F.3d at 1068-69 (citations omitted); see also Webb v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003).  “Claims are related where they involve ‘a common core of facts’ or are ‘based on related legal theories.’ ‘[T]he test is whether relief sought on the unsuccessful claim is intended to remedy a course of conduct entirely distinct and separate from the course of conduct that gave rise to the injury upon which the relief granted is premised.’”  O’Neal, 66 F.3d at 1069 (quoting Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1499 (9th Cir. 1995)); see also Thomas v. City of Tacoma, 410 F.3d 644, 649 (9th Cir. 2005); Webb, 330 F.3d at 1168-69.

c.       Determining the Amount of the Fee Award

The customary method of determining fees . . . is known as the lodestar method. . . .  The ‘lodestar’ is calculated by multiplying the number of hours the prevailing party reasonably expended on the litigation by a reasonable hourly rate.  After making that computation, the district court then assesses whether it is necessary to adjust the presumptively reasonable lodestar figure on the basis of the Kerr [v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9th Cir. 1975)] factors.

Morales v. City of San Rafael, 96 F.3d 359, 363-64 (9th Cir. 1996) (internal citation omitted), amended by 108 F.3d 981 (9th Cir. 1997); see also Blum v. Stenson, 465 U.S. 886, 888 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008); Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006); Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006); Dang v. Cross, 422 F.3d 800, 812 (9th Cir. 2005); Friend v. Kolodzieczak, 72 F.3d 1386, 1389 (9th Cir. 1995) (order); Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993).  There is a strong presumption in favor of the lodestar and it should be adjusted only in exceptional cases.  See City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Tutor-Saliba Corp., 452 F.3d at 1064-65; Morales, 96 F.3d at 364 n.8.

The court should consider the following factors when making the lodestar determination: 

(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the ‘undesirability’ of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.

Morales, 96 F.3d at 364 n.8 (citing Kerr, 526 F.2d at 70); see also Gonzalez, 729 F.3d at 1209 n.11; Ballen, 466 F.3d at 746; Benton v. Or. Student Assistance Comm’n, 421 F.3d 901, 904-05 (9th Cir. 2005); Friend, 72 F.3d at 1389; McGrath v. Cty. of Nevada, 67 F.3d 248, 252 n.4 (9th Cir. 1994); McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th Cir. 1994) (stating no rote recitation of the factors is necessary).  The district court should exclude hours from the fee request that represent work that was “excessive, redundant, or otherwise unnecessary.”  Hensley, 461 U.S. at 434.  The district court may also reduce the lodestar amount in light of the limited success of the plaintiff.  See Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley, 461 U.S. at 434-37; Benton, 421 F.3d at 905 (explaining that nominal damages cases are exempted from the general requirements that govern the calculation of attorney’s fees); Dannenberg v. Valadez, 338 F.3d 1070, 1075 (9th Cir. 2003); Friend, 72 F.3d at 1389; Romberg v. Nichols, 48 F.3d 453, 455 (9th Cir. 1995).

“The ‘reasonable hourly rate’ must be determined by reference to the prevailing market rates in the relevant legal community.”  Stewart, 987 F.2d at 1453 (citing Blum, 465 U.S. at 895); see also Carson v. Billings Police Dep’t, 470 F.3d 889, 891-92 (9th Cir. 2006); Bell v. Clackamas Cty., 341 F.3d 858, 868-69 (9th Cir. 2003); Barjon v. Dalton, 132 F.3d 496, 500-02 (9th Cir. 1997).

The party seeking the award bears the burden for documenting the hours spent in preparing the case in a form that will enable the district court to make the relevant determinations.  See Carson, 470 F.3d at 891-92; Stewart, 987 F.2d at 1452-53.  “Where the documentation of the hours is inadequate, the district court may reduce the award accordingly.”  Hensley, 461 U.S. at 433.   

The district court must provide some explanation for the amount of attorney’s fees it is awarding.  See Hensley, 461 U.S. at 437; Moreno, 534 F.3d at 1111-16; Tutor-Saliba Corp., 452 F.3d at 1065; Cummings v. Connell, 402 F.3d 936, 947 (9th Cir. 2005); McGrath, 67 F.3d at 253-55.

d.      Awarding Attorney’s Fees to Defendants

“Attorneys’ fees in civil rights cases should only be awarded to a defendant in exceptional circumstances.”  Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990); see also Manufactured Home Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1036 (9th Cir. 2005); Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 202 (9th Cir. 1989).  “The mere fact that a defendant prevails does not automatically support an award of fees.  A prevailing civil rights defendant should be awarded attorney’s fees not routinely, not simply because [the defendant] succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless, or vexatious.”  Patton v. Cty. of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988) (citations and internal quotation marks omitted); see also Kentucky v. Graham, 473 U.S. 159, 165 n.9 (1985); Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983); Fabbrini v. City of Dunsmuir, 631 F.3d 1299, 1302 (9th Cir. 2011); Harris v. Maricopa Cty. Superior Court, 631 F.3d 963, 971-72 (9th Cir. 2011); Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 962 (9th Cir. 2010); Gibson v. Office of Att’y Gen., Cal., 561 F.3d 920, 929 (9th Cir. 2009); Galen v. Cty. of Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007); Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006); Manufactured Home Cmtys. Inc., 420 F.3d at 1036; Thomas v. City of Tacoma, 410 F.3d 644, 647-48 (9th Cir. 2005); Branson v. Nott, 62 F.3d 287, 292 (9th Cir. 1995); Maag v. Wessler, 993 F.2d 718, 719 (9th Cir. 1993).  [A] defendant bears the burden of establishing that the fees for which it is asking are in fact incurred solely by virtue of the need to defend against those frivolous claims.”  Harris, 631 F.3d at 971.

The rule against awarding defendants attorney’s fees applies with special force where the plaintiffs are pro se litigants.  See Hughes v. Rowe, 449 U.S. 5, 15 (1980) (stating rule for pro se prisoners); Miller v. L.A. Cty. Bd. of Educ., 827 F.2d 617, 620 (9th Cir. 1987).

“Where a claim is dismissed for lack of subject matter jurisdiction, the defendant is not a prevailing party within the meaning of § 1988, and the district court accordingly lacks jurisdiction to award attorneys’ fees.”  Elwood v. Drescher, 456 F. 3d 943, 948 (9th Cir. 2006) (concluding that the district court lacked jurisdiction to award attorneys’ fees where dismissal was based on the Rooker-Feldman doctrine and the Younger abstention doctrine); see also Miles v. California, 320 F.3d 986, 988 (9th Cir. 2003); Branson, 62 F.3d at 292-93.

e.       Awarding Attorney’s Fees to Pro Se Litigants

Pro se litigants are not entitled to an award of attorney’s fees under § 1988.  See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990); Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); cf. Kay v. Ehrler, 499 U.S. 432, 438 (1991) (no award to attorneys representing themselves); Elwood v. Drescher, 456 F.3d 943, 946-48 (9th Cir. 2006) (pro se attorney-defendant).

f.       Immunity and Fee Awards

Attorney’s fees, under § 1988, are not available “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity . . . unless such action was clearly in excess of such officer’s jurisdiction.”  42 U.S.C. § 1988(b).

g.       Other Work Entitling Attorney to Fees

“Work performed on a motion for fees under § 1988(b) is compensable.”  McGrath v. Cty. of Nevada, 67 F.3d 248, 253 (9th Cir. 1995); see also Harris v. Maricopa Cty. Superior Court, 631 F.3d 963, 979 (9th Cir. 2011).

Work performed after the judgment which is “‘useful’ and of a type ‘ordinarily necessary’ to secure the litigation’s final result” is compensable.  Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993) (citation omitted).

A “delay in payment [of fees awarded under § 1988] occasioned by appeal is redressable solely by an award of interest [pursuant to 28 U.S.C. § 1961].”  Corder v. Brown, 25 F.3d 833, 838 (9th Cir. 1994).

3.       Equal Access to Justice Act (28 U.S.C. § 2412)

28 U.S.C. § 2412(d)(1)(A) provides that a court shall, in a civil proceeding brought against the United States, award fees and other expenses to the prevailing party ‘unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.’”  United States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996); see also Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008); Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005); United States v. Marolf, 277 F.3d 1156, 1160-61 (9th Cir. 2002); Rueda-Menicucci v. INS, 132 F.3d 493, 494-95 (9th Cir. 1997) (per curiam); Meinhold v. U.S. Dep’t of Def., 123 F.3d 1275, 1277 (9th Cir.), amended by 131 F.3d 842 (9th Cir. 1997) (order); Blaylock Elec. v. NLRB, 121 F.3d 1230, 1233 (9th Cir. 1997).  

“The party seeking fees has the burden of establishing its eligibility.”  Love v. Reilly, 924 F.2d 1492, 1494 (9th Cir. 1991).  The government has the burden of proving that its position was substantially justified.  See Scarborough v. Principi, 541 U.S. 401, 414-16 (2004); Meinhold, 123 F.3d at 1277; Rubin, 97 F.3d at 375; Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995); Love, 924 F.2d at 1495. 

The government’s position is substantially justified if it has a “reasonable basis both in law and fact.”  Pierce v. Underwood, 487 U.S. 552, 565 (1988); see also Comm’r v. Jean, 496 U.S. 154, 158 n.6 (1990); Le, 529 F.3d at 1201; Free Speech Coal., 408 F.3d at 618; Marolf, 277 F.3d at 1161; Meinhold, 123 F.3d at 1277; Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996); Or. Nat. Res. Council v. Madigan, 980 F.2d 1330, 1331 (9th Cir. 1992).  The government’s position includes both action giving rise to the litigation and the position taken during litigation.  See Marolf, 277 F.3d at 1161; Meinhold, 123 F.3d at 1278 (citing Or. Nat. Res., 980 F.2d at 1331).    

The fee should not exceed $125 per hour unless special circumstances exist.  See 28 U.S.C. § 2412(d)(2)(A).  These circumstances include special expertise of counsel, difficulty in obtaining competent counsel, and increases in the cost of living.  See id.; Pierce, 487 U.S. at 571-72; Rueda-Menicucci, 132 F.3d at 496; Love, 924 F.2d at 1496; see also Nat. Res. Def. Council v. Winter, 543 F.3d 1152, 1158-62 (9th Cir. 2008).

Pro se litigants are not entitled to fees under the statute, but they are entitled to expenses.  See Merrell v. J.R. Block, 809 F.2d 639, 642 (9th Cir. 1987).

I.       Costs

Costs may be awarded to the prevailing party under Fed. R. Civ. P. 54(d).  See Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997).  Costs may also be awarded as a sanction for discovery abuses under Fed. R. Civ. P. 37.  See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1482 (9th Cir. 1992).

The following may be included in an award of costs: 

(1) [f]ees of the clerk and marshal; (2) [f]ees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) [f]ees and disbursements for printing and witnesses; (4) [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) [d]ocket fees under [28 U.S.C. § 1923]; (6) [c]ompensation of court appointed experts, compensation of interpreters, and salaries,fees, expenses and costs of special interpretation services under [28 U.S.C. § 1828].

28 U.S.C. § 1920.

Pro se litigants are entitled “to recover . . . actual costs reasonably incurred to the extent that an attorney could have received these costs under a [§] 1988 attorney’s fees award.”  Burt v. Hennessey, 929 F.2d 457, 459 (9th Cir. 1991). 

In forma pauperis litigants can be ordered to pay the costs of the opposing party.  See Warren v. Guelker, 29 F.3d 1386, 1390 (9th Cir. 1994) (per curiam).

For a discussion of disciplinary measures the court may take against pro se, in forma pauperis litigants, see infra II.C.

J.       Relationship to Habeas Corpus Proceedings

“[W]hen a state prisoner is challenging the very fact or duration of [the prisoner’s] physical imprisonment, and the relief [the prisoner] seeks is a determination that [the prisoner] is entitled to immediate release or a speedier release from that imprisonment, [the prisoner’s] sole remedy is a writ of habeas corpus.”  Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that an injunctive relief action to restore the revocation of good-time credits is not cognizable under § 1983); see also Skinner v. Switzer, 562 U.S. 521, 525 (2011); Simpson v. Thomas, 528 F.3d 685, 692-93 (9th Cir. 2008); Ramirez v. Galaza, 334 F.3d 850, 855-56 (9th Cir. 2003); Bogovich v. Sandoval, 189 F.3d 999, 1002-03 (9th Cir. 1999) (applying rule to ADA claim); Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997); Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (per curiam).  “Where the prisoner’s claim would not ‘necessarily spell speedier release,’ however, suit may be brought under § 1983.”  Skinner, 562 U.S. at 525 (citation omitted) (holding that a postconviction claim for DNA testing is properly pursued in a § 1983 action).

 Moreover, where a § 1983 action seeking damages alleges constitutional violations that would necessarily imply the invalidity of the conviction or sentence, the prisoner must establish that the underlying sentence or conviction has been invalidated on appeal, by a habeas petition, or through some similar proceeding.  See Heck v. Humphrey, 512 U.S. 477, 483-87 (1994).  The Supreme Court later clarified that Heck’s principle (also known as the “favorable termination” rule) applies regardless of the form of remedy sought, if the § 1983 action implicates the validity of an underlying conviction or a prison disciplinary sanction.  See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997) (holding that a claim for monetary and declaratory relief challenging the validity of procedures used to deprive a prisoner of good-time credits is not cognizable under § 1983); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (explaining that “a state prisoner’s § 1983 action is barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if success in that action would necessarily demonstrate the invalidity of confinement or its duration.”); Whitaker v. Garcetti, 486 F.3d 572, 583-85 (9th Cir. 2007) (explaining that the “sole dispositive question is whether a plaintiff’s claim, if successful, would imply the invalidity of [the plaintiff’s] conviction.”).

Accordingly, where the § 1983 action would necessarily imply the invalidity of the conviction or sentence, it may not proceed.  See Balisok, 520 U.S. at 646-48 (concluding that § 1983 claim was not cognizable because allegation of procedural defect – a biased hearing officer – would result in an automatic reversal of the prison disciplinary sanction); Heck, 512 U.S. at 483-87 (concluding that § 1983 claim was not cognizable because allegations were akin to malicious prosecution claim which includes as an element that the criminal proceeding was concluded in plaintiff’s favor); Szajer v. City of Los Angeles, 632 F.3d 607, 611-12 (9th Cir. 2011) (concluding that Fourth Amendment unlawful search claim was not cognizable because a finding that there was no probable cause for the search would necessarily imply the invalidity of plaintiffs’ conviction for felony possession of a pistol); McQuillon v. Schwarzenegger, 369 F.3d 1091, 1097-99 (9th Cir. 2004) (concluding that § 1983 claims were not cognizable because they relied on “‘deceit and bias’ on the part of the [parole] decisionmakers, and impl[ied] the invalidity of [the prisoners’] confinement insofar as [the prisoners’] prolonged incarcerations [we]re due to the purported bias of state officials.”); Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam) (concluding that claims for false arrest and false imprisonment were not cognizable because a finding that there was no probable cause to arrest plaintiff for disturbing the peace would necessarily imply that plaintiff’s conviction for disturbing the peace was invalid); Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir. 1997) (concluding that § 1983 claim was not cognizable because allegations of procedural defects were clearly an attempt to challenge substantive result in parole hearing); Blueford v. Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (affirming dismissal without prejudice of claims relating to disciplinary proceedings where good-time credits were involved); Trimble, 49 F.3d at 585 (concluding that § 1983 claims similar to those in Heck are not cognizable); see also Muhammad v. Close, 540 U.S. 749, 754-55 (2004) (per curiam).

Conversely, where the § 1983 action would not necessarily imply the invalidity of the conviction or sentence, it may proceed.  See Heck, 512 U.S. at 482-83; see also Skinner, 562 U.S. at 533 (determining that success in prisoner’s suit for DNA testing would not necessarily imply the invalidity of his conviction, and thus the § 1983 action could proceed); Wilkinson, 544 U.S. at 82 (concluding that § 1983 claims were cognizable because granting declaratory and injunctive relief that would render invalid state procedures used to deny parole eligibility and suitability would “[not] necessarily spell speedier release[s]”); Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974); Weilburg v. Shapiro, 488 F.3d 1202, 1206-07 (9th Cir. 2007) (concluding that Heck does not bar a § 1983 action for violation of extradition rights because such allegations, if proven, would not invalidate plaintiff’s incarceration); Hooper v. Cty. of San Diego, 629 F.3d 1127, 1132-33 (9th Cir. 2011) (holding that success in § 1983 claim that excessive force was used during arrest would not imply the invalidity of conviction under Cal. Penal Code § 148(a)(1)); Ramirez, 334 F.3d at 858 (holding that “the favorable termination rule does not apply to § 1983 suits challenging a disciplinary hearing or administrative sanction that does not affect the overall length of the prisoner’s confinement.”); Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (concluding that civil rights claim regarding manner of obtaining evidence not barred when evidence not introduced to obtain conviction); Neal, 131 F.3d at 824 (concluding that § 1983 claim was cognizable because challenge was to conditions for parole eligibility, not to any particular parole determination); Woratzeck v. Ariz. Bd. of Exec. Clemency, 117 F.3d 400, 402-03 (9th Cir. 1997) (per curiam) (concluding that § 1983 claim was cognizable because allegations of procedural defects in clemency hearing do not affect the validity of the underlying criminal conviction); see also Hill v. McDonough, 547 U.S. 573, 580 (2006) (concluding that § 1983 claim was cognizable because challenge to particular method of lethal injection would not prevent state from implementing the sentence; consequently, the suit as presented was not a challenge to the fact of the sentence itself); Nelson v. Campbell, 541 U.S. 637, 644-47 (2004) (same). 

For example, the prisoner may bring claims for excessive force.  See Hooper, 629 F.3d at 1132-33 (explaining that § 1983 claim that excessive force was used during arrest would not necessarily imply or demonstrate the invalidity of the conviction); Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (explaining that § 1983 claim was cognizable because allegations of excessive force do not affect validity of the criminal conviction); Smith v. City of Hemet, 394 F.3d 689, 695-99 (9th Cir. 2005) (en banc); Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir. 2001); compare Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam) (holding that Heck did not bar plaintiff’s excessive force claim because even though plaintiff had been convicted of assaulting his arresting officers, the officers’ alleged excessive force took place after he had been arrested, and thus did not necessarily invalidate his conviction), with Cunningham v. Gates, 312 F.3d 1148, 1154-55 (9th Cir. 2002) (holding that Heck barred plaintiff’s excessive force claim because the jury, in convicting plaintiff of felony-murder, necessarily found that he had intentionally provoked the deadly police response, and therefore a finding of excessive force on the part of the police would have invalidated his conviction).  Heck is not an evidentiary doctrine and may not be used to bar evidence in a § 1983 claim for excessive force.  See Simpson, 528 F.3d at 691-96.

Where the complaint states a habeas claim instead of a § 1983 claim, the court should dismiss the claim without prejudice, rather than converting it to a habeas petition and addressing it on the merits.  See Balisok, 520 U.S. at 649; Heck, 512 U.S. at 487; Blueford, 108 F.3d at 255; Trimble, 49 F.3d at 586.  Where the complaint alleges claims that sound in habeas and claims that do not, the court should allow the non-habeas claims to proceed.  See Ybarra v. Reno Thunderbird Mobile Home Vill., 723 F.2d 675, 681-82 (9th Cir. 1984).

Heck is only triggered once a person has been convicted.  See Wallace v. Kato, 549 U.S. 384, 393 (2007). 

Heck applies to civil detainees under California’s Sexually Violent Predators Act.  See Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40 (9th Cir. 2005) (explaining that, unlike the exhaustion requirement of the PLRA which does not apply to civil detainees, the habeas statute is not textually limited to prisoners).

The fact that a prisoner’s sentence has run is irrelevant to the application of this doctrine.  See Heck, 512 U.S. at 490 n.10; see also Guerrero, 442 F.3d at 704-05; Cunningham, 312 F.3d at 1153 n.3.  But see Spencer v. Kemna, 523 U.S. 1 (1998) (five votes – four concurring and one in dissent – for the opposite proposition); Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002) (concluding that a § 1983 action for damages can be maintained, even though success in that action would imply the invalidity of the disciplinary proceedings that caused revocation of a prisoner’s good-time credits, where, after the district court had dismissed the action under Heck, the prisoner was released from incarceration and on parole).

K.      Bivens Actions

Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971)] established that compensable injury to a constitutionally protected interest [by federal officials] could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts[.]”  Butz v. Economou, 438 U.S. 478, 486 (1978); see also Wilkie v. Robbins, 551 U.S. 537, 549-50 (2007); Carlson v. Green, 446 U.S. 14, 18 (1980); W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009) (discussing Bivens); cf. Hui v. Castaneda, 559 U.S. 799, 807-11 (2010) (even where a Bivens remedy is generally available, an action under Bivens will be defeated if defendant is immune from suit).

“[A] Bivens action will not lie when Congress has created ‘comprehensive procedural and substantive provisions giving meaningful remedies against the United States.’”  Janicki Logging Co. v. Mateer, 42 F.3d 561, 564 (9th Cir. 1994) (quoting Bush v. Lucas, 362 U.S. 367, 368 (1983)); see also Wilkie, 551 U.S. at 550-54; Schweiker v. Chilicky, 487 U.S. 412, 423 (1988); Carlson, 446 U.S. at 18-19; W. Radio Servs. Co., 578 F.3d at 1120; Adams v. Johnson, 355 F.3d 1179, 1183-84 (9th Cir. 2004); Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003); Walleri v. Fed. Home Loan Bank of Seattle, 83 F.3d 1575, 1583 (9th Cir. 1996). 

Moreover, a Bivens action will not lie against the United States, agencies of the United States, or federal agents in their official capacity.  See FDIC v. Meyer, 510 U.S. 471, 486 (1994); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007); Morgan v. United States, 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996); Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (declining to extend Bivens to confer a right of action for damages against a private corporation operating prison facilities under contract with the federal Bureau of Prisons). 

“Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”  Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (borrowing state personal-injury statute of limitations for Bivens action); see also Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006); cf. Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (order) (applying rule of Heck v. Humphrey, 512 U.S. 477 (1994) to Bivens action)); Alexander v. Perrill, 916 F.2d 1392, 1396 (9th Cir. 1990) (stating that failure to perform a duty creates liability under both § 1983 and Bivens); F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989) (stating that immunities are analyzed the same under § 1983 and Bivens).

In Minneci v. Pollard, 132 S. Ct. 617, 626 (2012), the Court held that a prisoner at a private federal facility could not assert an Eighth Amendment Bivens claim for damages against private prison employees where state law authorized adequate alternative damages actions, reversing the Ninth Circuit’s decision in Pollard v. The Geo Grp., Inc., 607 F.3d 584 (concluding that a federal prisoner could recover for violations of his constitutional rights by employees of private corporations operating federal prisons), amended by 629 F.3d 843, 852-68 (9th Cir. 2010).


II.      PROCEDURAL ISSUES CONCERNING PRO SE COMPLAINTS

This section summarizes the rules for processing prisoner pro se complaints.  This section also discusses how the Prison Litigation Reform Act (the “PLRA”) has changed those rules.  For further discussion of the PLRA, see infra IV.

A.      General Considerations

1.       Pleadings

a.       Liberal Construction

“The Supreme Court has instructed the federal courts to liberally construe the inartful pleading of pro se litigants.  It is settled that the allegations of [a pro se litigant’s complaint] however inartfully pleaded are held to less stringent standards than formal pleadings drafted by lawyers.”  Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citation and internal quotation marks omitted; brackets in original); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hamilton v. Brown, 630 F.3d 889, 893 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010); Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir. 2008); Johnson v. California, 207 F.3d 650, 653 (9th Cir. 2000) (per curiam); Frost v. Symington, 197 F.3d 348, 352 (9th Cir. 1999).

The rule of liberal construction is “particularly important in civil rights cases.”  Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992); see also Johnson, 207 F.3d at 653.

The rule, however, “applies only to a plaintiff’s factual allegations.”  Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989).  “‘[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.’”  Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (per curiam).

b.      Exceptions

(1)     Heightened Pleading Requirements

“Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”  Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982); see also Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (per curiam). 

Where a plaintiff alleges a private party conspired with state officers, the complaint must contain more than conclusory allegations.  See Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (conclusory allegations insufficient to consider a private party a state actor for purposes of § 1983); Price v. Hawaii, 939 F.2d 702, 707-09 (9th Cir. 1991) (same); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1979) (per curiam).  For further discussion, see supra I.A.2.b.(5). 

In Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167 (1993), the Supreme Court left open the question whether the Court’s “qualified immunity jurisprudence would require a heightened pleading standard in cases involving individual government officials.”  After Leatherman, the Supreme Court concluded that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Crawford-El v. Britton, 523 U.S. 574, 594-97 (1998); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-15 (2002) (declining to impose a heightened pleading standard in employment discrimination case, explaining that “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions [such as actions brought under Rule 9(b)].”). 

The Ninth Circuit has also held that a heightened pleading standard does not apply to constitutional claims brought against individual defendants in which improper motive is a necessary element.  See Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1123-26 (9th Cir. 2002) (overruling Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (“Branch II”), Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991) (“Branch I”), and their progeny because they imposed a heightened pleading standard); see also Empress LLC v. City of San Francisco, 419 F.3d 1052, 1055-56 (9th Cir. 2005) (explaining that “the logical conclusion of Leatherman, Crawford-El, and Swierkiewicz dictates that a heightened pleading standard should only be applied when the Federal Rules of Civil Procedure so require.”); Miranda v. Clark Cty., Nev., 319 F.3d 465, 470 (9th Cir. 2003) (en banc) (same).

There is also no heightened pleading standard with respect to the “policy or custom” requirement of demonstrating municipal liability.  See Leatherman, 507 U.S. at 167-68; see also Empress LLC, 419 F.3d at 1055; Galbraith, 307 F.3d at 1124; Lee v. City of Los Angeles, 250 F.3d 668, 679-80 (9th Cir. 2001); Evans v. McKay, 869 F.2d 1341, 1349 (9th Cir. 1989).  “In th[e Ninth C]ircuit, a claim of municipal liability under [§] 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.’”  Karim-Panahi v. L.A. Police Dep’t., 839 F.2d 621, 624 (9th Cir. 1988) (quoting Shah v. Cty. of Los Angeles, 797 F.2d 743, 747 (9th Cir. 1986)); see also Evans, 869 F.2d at 1349; Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986) (“[I]t is enough if the custom or policy can be inferred from the allegations of the complaint.”).  But see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”).

For a discussion of the heightened pleading requirement with respect to the “policy or custom” requirement for establishing municipal liability, see supra I.A.1.c.(2)(d); for a discussion of the heightened pleading requirement with respect to qualified immunity defenses, see supra I.D.2.b.

(2)     Procedural Rules

Although the court must construe pleadings liberally, “[p]ro se litigants must follow the same rules of procedure that govern other litigants.”  King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012); see also Briones v. Riviera Hotel & Casino, 116 F.3d 379, 381 (9th Cir. 1997) (per curiam); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per curiam).

The courts, however, have “a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.”  Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990); see also Solis v. Cty. of Los Angeles, 514 F.3d 946, 957 n.12 (9th Cir. 2008) (construing demand for jury trial in motion for counsel as a continuing demand even though not in a separate filing because plaintiff was pro se); Waters v. Young, 100 F.3d 1437, 1441 (9th Cir. 1996); Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984).

2.       Time Limits

“‘[S]trict time limits . . . ought not to be insisted upon’ where restraints resulting from a pro se prisoner plaintiff’s incarceration prevent timely compliance with court deadlines.”  Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987) (quoting Tarantino v. Eggers, 380 F.2d 465, 468 (9th Cir. 1967)); see also McGuckin v. Smith, 974 F.2d 1050, 1058 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).

With respect to the timeliness of a notice of appeal filed by a prisoner pro se litigant, the notice is deemed filed on the date the prisoner “delivered the notice to prison authorities for forwarding to the [d]istrict [c]ourt.”  Houston v. Lack, 487 U.S. 266, 270 (1988); see also Douglas v. Noelle, 567 F.3d 1103, 1106 (9th Cir. 2009); Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Koch v. Ricketts, 68 F.3d 1191, 1192 (9th Cir. 1995).  Fed. R. App. P. 4(c) codifies the Houston v. Lack rule as it applies to notices of appeal.  See Koch, 68 F.3d at 1193.  The Houston v. Lack rule has been applied to pleadings in addition to notices of appeal.  See Douglas, 567 F.3d at 1106-07; James v. Madison St. Jail, 122 F.3d 27, 28 (9th Cir. 1997) (per curiam) (applying rule to filing of trust account statements as required by 28 U.S.C. § 1915(a)(2)); Schroeder v. McDonald, 55 F.3d 454, 459 (9th Cir. 1995) (applying rule to filing of motion for reconsideration); Caldwell v. Amend, 30 F.3d 1199, 1201 (9th Cir. 1994) (applying rule to deadline for filing a motion under Fed. R. Civ. P. 50(b)); Faile v. Upjohn Co., 988 F.2d 985, 988 (9th Cir. 1993) (applying rule to timely completion of service), disapproved on other grounds by McDowell v. Calderon, 197 F.3d 1253 (9th Cir. 1999).  But see Nigro v. Sullivan, 40 F.3d 990, 994-95 (9th Cir. 1994) (refusing to apply rule to deadlines for administrative remedies applicable to federal prisons).

The Ninth Circuit has held that the Houston v. Lack rule applies whenever the prisoner has utilized an internal prison mail system and the record allows the court to determine the date on which the filing was turned over to prison authorities.  See Caldwell, 30 F.3d at 1202; see also Douglas, 567 F.3d at 1108-09.  “When a pro se prisoner alleges that he [or she] timely complied with a procedural deadline by submitting a document to prison authorities, the district court must either accept that allegation as correct or make a factual finding to the contrary upon a sufficient evidentiary showing by the opposing party.”  See Faile, 988 F.2d at 989.  Where the prisoner submits an affidavit as to the date the documents were submitted to prison authorities, the burden “shifts to the opposing party . . . [to] produc[e] evidence in support of a contrary factual finding.”  Caldwell, 30 F.3d at 1203; see Koch, 68 F.3d at 1194; see also Fed. R. App. P. 4(c) (stating that a “[t]imely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.”).

3.       Representing Others

Pro se litigants have no authority to represent anyone other than themselves.  See Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (non-attorney plaintiff may not attempt to pursue claim on behalf of others in a representative capacity); Johns v. Cty. of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (parent or guardian cannot bring suit on behalf of minor child); Cato v. United States, 70 F.3d 1103, 1105 n.1 (9th Cir. 1995) (non-attorney party may not represent other plaintiffs); C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697-98 (9th Cir. 1987) (trustee cannot represent trust); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (non-attorney party may not represent other plaintiffs).

4.       Competency Hearings

Fed. R. Civ. P. 17(c) states that “[t]he court must appoint a guardian ad litem – or issue another appropriate order – to protect a minor or incompetent person who is unrepresented in an action.”

Where there is a substantial question regarding the mental competence of a party proceeding pro se, the court should conduct a hearing to determine whether a guardian or attorney should be appointed under Rule 17(c).  See Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989); see also Allen v. Calderon, 408 F.3d 1150, 1153-54 (9th Cir. 2005) (holding that dismissal of inmate’s habeas petition for failure to prosecute without first conducting a competency hearing was an abuse of discretion, and explaining that counsel could be appointed for limited purpose of representing petitioner at competency hearing).  If the litigant refuses to participate in the hearing, the district court may dismiss the case or may appoint an attorney to assist the litigant.  See Krain, 880 F.2d at 1121.

5.       Presence at Hearings

A pro se prisoner who is currently incarcerated has no right to appear at hearings.  See Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir 1989); Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1986); see also 42 U.S.C. § 1997e(f)(1) (requiring, to the extent practicable, that a prisoner’s participation be secured through telecommunications technology instead of through extraction from the prison).

B.      Processing and Resolving Cases

1.       Applications for In Forma Pauperis Status

“[C]ourt permission to proceed in forma pauperis is itself a matter of privilege and not right.”  Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984); see also Andrews v. King, 398 F.3d 1113, 1123 (9th Cir. 2005); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965).  The Ninth Circuit reviews for abuse of discretion a district court’s denial of in forma pauperis status.  See O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990). See also Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015) (abuse of discretion to consider spouse’s income without making specific findings about litigant’s access to income).

 

a.       Application Requirements (28 U.S.C. § 1915(a))

A person may be granted permission to proceed in forma pauperis if the person “submits an affidavit that includes a statement of all assets such [person] possesses [and] that the person is unable to pay such fees or give security therefor.  Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.”  28 U.S.C. § 1915(a)(1).

Prisoners seeking in forma pauperis status must also “submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.”  28 U.S.C. § 1915(a)(2).

b.      Evaluation of Application

“‘[T]he supporting affidavits [must] state the facts as to affiant’s poverty with some particularity, definiteness, and certainty.’”  United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981) (per curiam) (citing Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960)).  An affidavit in support of an IFP application is sufficient where it alleges that the affiant cannot pay the court costs and still afford the necessities of life.”  Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015).  The litigant need not “be absolutely destitute to enjoy the benefit of the statute.”  Adkins v. E.I. du Pont De Nemours & Co., 335 U.S. 331, 339 (1948).  “[W]here the affidavits are written in the language of the statute it would seem that they should ordinarily be accepted, for trial purposes, particularly where unquestioned and where the judge does not perceive a flagrant misrepresentation.”  Id.  If, however, the district court determines that the allegation of poverty is false, the case should be dismissed.  See 28 U.S.C. § 1915(e)(2)(A).

Although the Ninth Circuit has stated that the decision to grant or deny in forma pauperis status should be “based on the plaintiff’s financial resources alone” with a later independent determination as to whether the complaint should be dismissed as frivolous, see Franklin v. Murphy, 745 F.2d 1221, 1226 n.5 (9th Cir. 1984); Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir. 1970) (per curiam); Stiltner v. Rhay, 322 F.2d 314, 317 (9th Cir. 1963), the Prison Litigation Reform Act permits the district court to make the frivolousness determination before granting in forma pauperis status, see 28 U.S.C. § 1915A; see also O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat’l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)