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