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

 

 

 

 

 

 

 

 

 

 

 

Section 1983 Outline

 

Updated 2022

 

Office of Staff Attorneys

United States Court of Appeals

for the Ninth Circuit

 

This outline is intended for use as a starting point for research.  It 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 Outlines@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. 3

(2)         Theory of Liability. 4

(a)     Municipal Policy. 5

(b)     Municipal Custom.. 7

(c)     Municipality’s Failure to Train. 8

(d)     Pleading Standard. 10

d.       Agencies. 11

e.        State Officials. 13

(1)         Official Capacity. 13

(2)         Personal Capacity. 14

(3)         Determining Capacity. 14

f.        Federal Officials. 15

2.    Acting under Color of State Law.. 15

a.       General Principles 15

b.       Applications 17

(1)         State Employees. 17

(2)         Police Officers. 18

(3)         Prison Officials. 18

(4)         Prison Physicians 19

(5)         Public Defenders. 19

(6)         Private Parties 20

(7)         Federal Employees. 21

3.    Deprivation of a Right 21

a.       Rights Guaranteed by the Constitution. 21

b.       Rights Guaranteed by Federal Statutes 22

c.        Rights Guaranteed by State Law.. 23

B.     State-of-Mind Requirement 24

C.     Causation. 24

1.    General Principles 24

2.    Supervisory Liability. 25

3.    Local Governmental Unit Liability. 27

4.    Relationship to Relief Sought 27

5.    Pleading Standards. 27

D.    Immunities. 27

1.    Absolute Immunity. 27

a.       Basic Principles. 28

(1)         Determining Eligibility for Absolute Immunity. 28

(2)         Burden of Proof Regarding Eligibility for Absolute Immunity. 29

(3)         Effect of Absolute Immunity. 30

(4)         Application to Bivens Actions. 30

b.       Judicial Immunity. 30

(1)         Basic Principles. 30

(2)         Eligibility. 31

(a)     Judges. 31

(b)     Magistrate Judges. 33

(c)     Administrative Agency Hearing Officers. 33

(d)     Court Mediators 33

(e)     Court-Appointed Psychiatrists. 33

(f)     Court Employees / Courtroom Officials. 33

(g)     Parole Board Officials. 34

(h)     Probation Officers / Parole Officers. 35

c.        Prosecutorial Immunity. 36

(1)         Basic Principles. 36

(2)         Eligibility. 40

(a)     Attorneys. 40

(b)     Agency Officials. 41

(c)     Social Workers. 41

d.       Presidential Immunity. 42

e.        Legislative Immunity. 42

f.        Witness Immunity. 43

g.       Ineligibility. 43

(1)         Local Governmental Units 43

(2)         Prison Officials. 43

(3)         Defense Counsel 44

(4)         Police Officers. 44

(5)         Court Reporters. 44

(6)         Executive Officials. 45

(7) Social Workers 45

2.    Qualified Immunity. 46

a.       Basic Principles. 47

(1)         Eligibility. 47

(a)     Identifying the Right 50

(b)     Clearly Established Right 50

(2)         Ineligibility. 54

(a)     Local Governmental Units 54

(b)     Municipal Employees 54

(c)     Private Individuals. 54

(d)     Municipality. 55

b.       Pleading: Plaintiff’s Allegations. 55

c.        Pleading: Affirmative Defense. 56

d.       Burdens of Proof 57

e.        Discovery. 57

f.        Dismissal 58

g.       Summary Judgment 59

h.       Interlocutory Appeals 59

3.    Eleventh Amendment Immunity. 60

a.       Basic Principles. 61

b.       Inapplicability of Amendment 62

(1)         Local Governmental Units 62

(2)         State Officials. 62

(a)     Official Capacity. 62

(b)     Personal Capacity. 64

c.        Abrogation. 64

d.       Waiver 65

e.        Violations of State Law.. 66

f.        Burden of Proof 67

g.       Interlocutory Appeals 67

E.     Remedies. 68

1.    Damages. 68

a.       Compensatory. 68

b.       Punitive. 69

c.        Presumed. 70

d.       Nominal 70

2.    Injunctive Relief 71

a.       Law Prior to Enactment of the Prison Litigation Reform Act 71

b.       Law after Enactment of the Prison Litigation Reform Act 72

3.    Declaratory Relief 73

F.     Exhaustion of Remedies. 73

1.    State Remedies. 73

2.    Prison Administrative Remedies. 74

G.    Statute of Limitations 79

1.    General Principles 79

2.    States’ Personal-Injury Statutes of Limitations 81

3.    Dismissal 83

H.    Attorney’s Fees. 83

1.    Prison Litigation Reform Act (42 U.S.C. § 1997e(d)) 83

2.    42 U.S.C. § 1988. 84

a.       General Principles 84

b.       Determining when a Plaintiff is a “Prevailing Party”. 85

c.        Determining the Amount of the Fee Award. 88

d.       Awarding Attorney’s Fees to Defendants. 90

e.        Awarding Attorney’s Fees to Pro Se Litigants. 91

f.        Immunity and Fee Awards. 91

g.       Other Work Entitling Attorney to Fees. 91

3.    Equal Access to Justice Act (28 U.S.C. § 2412) 92

I.       Costs. 93

J.      Relationship to Habeas Corpus Proceedings. 93

K.    Bivens Actions. 97

II.      PROCEDURAL ISSUES CONCERNING PRO SE COMPLAINTS. 101

A.    General Considerations. 101

1.    Pleadings. 101

a.       Liberal Construction. 101

b.       Exceptions 103

(1)         Pleading Requirements. 103

(2)         Procedural Rules. 105

2.    Time Limits. 106

3.    Representing Others 107

4.    Competency Hearings 107

5.    Presence at Hearings. 108

B.     Processing and Resolving Cases 108

1.    Applications for In Forma Pauperis Status. 108

a.       Application Requirements (28 U.S.C. § 1915(a)) 108

b.       Evaluation of Application. 109

c.        Payment of Fee (28 U.S.C. § 1915(b)–(c)) 109

d.       Prior Litigation History (28 U.S.C. § 1915(g)) 110

e.        Accompanying Rights 111

(1)         Service of Process (28 U.S.C. § 1915(d)) 111

(2)         Appointment of Counsel (28 U.S.C. § 1915(e)(1)) 112

2.    Screening of Complaints (28 U.S.C. § 1915A) 113

3.    Frivolousness (28 U.S.C. § 1915(e)(2)(B)(i)) 113

a.       Sua Sponte Dismissal 113

b.       Standard. 113

c.        Leave to Amend. 114

d.       Review on Appeal 115

4.    Failure to State a Claim (28 U.S.C. § 1915(e)(2)(B)(ii)) 115

a.       Sua Sponte Dismissal 115

b.       Standard. 116

c.        Materials to be Considered. 116

d.       Leave to Amend. 117

e.        Effect of Amendment 117

f.        Review on Appeal 117

5.    Summary Judgment (Fed. R. Civ. P. 56) 118

a.       Sua Sponte Entry of Summary Judgment 118

b.       Standard. 119

c.        Informing Pro Se Litigants about Summary Judgment Requirements. 120

d.       Materials Submitted in Opposition to Summary Judgment Motion. 123

e.        Conversion of Motion to Dismiss 124

f.        Requests for Additional Discovery Prior to Summary Judgment (Fed. R. Civ. P. 56(d)) 125

g.       Local Rules Concerning Summary Judgment 127

h.       Review on Appeal 128

6.    Other Kinds of Dismissal 128

a.       Subject-Matter Jurisdiction. 128

b.       Personal Jurisdiction. 128

c.        Service of Process (Fed. R. Civ. P. 4(m)) 128

d.       Short and Plain Statement (Fed. R. Civ. P. 8(a)) 130

e.        Voluntary Dismissal (Fed. R. Civ. P. 41(a)) 130

f.        Involuntary Dismissal (Fed. R. Civ. P. 41(b)) 132

g.       Default Judgments (Fed. R. Civ. P. 55(b)) 133

C.     Disciplining Pro Se Litigants. 134

1.    Vexatious Litigant Orders 134

2.    Sanctions. 134

D.    Using Magistrate Judges. 135

E.     Recusal/Disqualification of Judges. 138

F.     Considerations on Appeal 139

1.    Granting In Forma Pauperis Status 139

2.    Appointment of Counsel 139

3.    Transcripts 139

III.   ANALYSIS OF SUBSTANTIVE LAW... 141

A.    Constitutional Claims 141

1.    First Amendment 142

a.       Speech Claims. 142

(1)         General Principles 142

(2)         Applications 144

(a)     Personal Correspondence. 144

(b)     Legal Correspondence. 145

(c)     Publications 146

(d)     Telephones. 148

(e)     Access to Media. 149

(f)     Associational Rights. 149

(g)     Jailhouse Lawyers 149

(h)     Prison Grievances. 149

b.       Religion Claims. 150

(1)         Free Exercise Clause. 150

(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. 153

2.    Fourth Amendment 156

a.       General Principles 156

b.       Cell Searches. 156

c.        Body Searches 156

d.       Phone-Call Monitoring. 158

3.    Sixth Amendment 159

4.    Eighth Amendment 159

a.       General Principles 159

b.       Safety. 163

c.        Medical Needs. 165

(1)         General Principles 165

(2)         Denial of, Delay of, or Interference with Treatment 167

(3)         Qualified Medical Personnel 168

(4)         Informing Medical Personnel of Medical Problems. 168

(5)         Negligence/Medical Malpractice. 169

(6)         Difference of Opinion about Medical Treatment 169

(7)         Fees for Medical Services. 170

(8)         Transfers 170

d.       Conditions of Confinement 171

(1)         General Principles 171

(2)         Specific Conditions 172

(a)     Crowding. 172

(b)     Sanitation. 172

(c)     Food. 172

(d)     Noise. 172

(e)     Exercise. 173

(f)     Vocational and Rehabilitative Programs 174

(g)     Temperature of Cells. 174

(h)     Ventilation. 174

(i)     Lighting. 175

(j)     Environmental Tobacco Smoke. 175

(k)     Asbestos 175

(l)     Personal Hygiene. 175

(m)     Clothing. 176

(n)     Searches. 176

(o)     Verbal Harassment 176

(p)    Safety Cell 176

e.        Excessive Force. 176

f.        Capital Punishment 178

5.    Fourteenth Amendment 179

a.       Equal Protection Claims. 179

b.       Procedural Due Process Claims. 180

(1)         Defining Liberty Interests 180

(a)     Interests Protected by the Constitution. 180

(b)     Interests Protected by State Law.. 181

(2)         Defining Property Interests 183

(3)         Procedural Guarantees 184

(a)     Administrative Segregation. 184

(b)     Disciplinary Hearings 186

(4)         Effect of State Remedies. 188

(5)         State-of-Mind Requirement 189

c.        Substantive Due Process Claims 189

d.       Vagueness Claims 190

6.    Access to Court Claims. 190

7.    Miscellaneous Constitutional Claims. 193

a.       Classification. 193

b.       Transfers 193

c.        Visitation. 193

d.       Verbal Harassment 194

e.        Vocational and Rehabilitative Programs 195

f.        Right to Marry/Procreate. 195

g.       Takings. 195

B.     Statutory Claims. 195

1.    42 U.S.C. § 1981. 195

2.    42 U.S.C. § 1985(3) 196

3.    42 U.S.C. § 1986. 197

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. 197

5.    Fair Labor Standards Act (29 U.S.C. §§ 201–19) 198

6.    Rehabilitation Act (29 U.S.C. §§ 701–97b); Americans with Disabilities Act (42 U.S.C. §§ 12101–12213) 198

7.    Title VII (42 U.S.C. §§ 2000e to 2000e–17) 199

8.    Title IX (20 U.S.C. §§ 1681–88) 199

9.    Federal Tort Claims Act (28 U.S.C. §§ 2671–2680) 200

C.     Parole/Probation. 201

D.    Rights of Pretrial Detainees. 204

IV.   PRISON LITIGATION REFORM ACT.. 208

A.    Application of the In Forma Pauperis Provisions (28 U.S.C. §§ 1915 & 1915A) 208

B.     Fee Provisions (28 U.S.C. § 1915(a)(2)–(3), (b)) 210

C.     Procedural Aspects of §§ 1915 and 1915A.. 213

D.    Three-Strikes Provision (28 U.S.C. § 1915(g)) 215

E.     Exhaustion Requirement (42 U.S.C. § 1997e(a)) 218

F.     Physical-Injury Requirement (42 U.S.C. § 1997e(e)) 223

G.    Injunctive Relief (18 U.S.C. § 3626) 223

H.    Special Masters (18 U.S.C. § 3626(f)) 225

I.       Attorney’s Fees (42 U.S.C. § 1997e(d)) 225


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); Sampson v. Cnty. of Los Angeles by & through Los Angeles Cnty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1018 (9th Cir. 2020); Tatum v. Moody, 768 F.3d 806, 814 (9th Cir. 2014); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); 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 Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021); Pistor v. Garcia, 791 F. 3d 1104, 1114 (9th Cir. 2015); Long v. Cnty. 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).

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); Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022) (stating that “States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983.” (citation omitted)); Stilwell v. City of Williams, 831 F.3d 1234, 1245 (9th Cir. 2016) (explaining § 1983 did not abrogate states’ Eleventh Amendment immunity and therefore does not allow suits against states themselves); Jackson v. Barnes, 749 F.3d 755, 764 (9th Cir. 2014); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997); 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.

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).  However, territorial officers acting in their official capacity are persons that could be subject to suit under § 1983 when sued for prospective relief.  See Paeste v. Gov’t of Guam, 798 F.3d 1228, 1235–40 (9th Cir. 2015) (discussing distinction between suits seeking damages and suits seeking prospective relief).  See also Crawford v. Antonio B. Won Pat Int’l Airport Auth., 917 F.3d 1081, 1089 n.8 (9th Cir. 2019) (“A Guam official is a ‘person’ for purposes of § 1983 when the official is sued, in his official capacity, for prospective relief.”).

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 Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020) (“A municipality may be held liable as a ‘person’ under 42 U.S.C. § 1983 when it maintains a policy or custom that causes the deprivation of a plaintiff’s federally protected rights.”); Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 960 (9th Cir. 2010); Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 713 (9th Cir. 2010); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008); Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); Cortez v. Cnty. 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. 2014) (“[W]hen a California sheriff’s department performs the function of conducting criminal investigations, it is a county actor subject to suit under § 1983”); Miranda v. Clark Cnty., Nev., 319 F.3d 465, 469 (9th Cir. 2003) (en banc); see also Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1066 n.2 (9th Cir. 2016) (en banc) (rejecting the County’s claim that the Eleventh Amendment barred the suit).  Municipal government officials are also persons for purposes of § 1983.  See Monell, 436 U.S. at 691 n.55.

“A county is subject to Section 1983 liability ‘if its policies, whether set by the government’s lawmakers or by those whose edicts or acts ... may fairly be said to represent official policy, caused the particular constitutional violation at issue.’”  King v. Cnty. of Los Angeles, 885 F.3d 548, 558 (9th Cir. 2018) (quoting Streit v. Cnty. of Los Angeles, 236 F.3d 552, 559 (9th Cir. 2001)); see also Hardwick v. Cnty. of Orange, 980 F.3d 733, 742 (9th Cir. 2020); Rivera v. Cnty. of Los Angeles, 745 F.3d 384, 389 (9th Cir. 2014) (“[M]unicipalities, including counties and their sheriff’s departments, can only be liable under § 1983 if an unconstitutional action ‘implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.’” (quoting Monell, 436 U.S. at 690)).

(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 Cnty. 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); Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (“‘[A] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.’” (quoting Monell, 436 U.S. at 691)); Pasadena Republican Club v. W. Just. Ctr., 985 F.3d 1161, 1171–72 (9th Cir.), cert. denied, 142 S. Ct. 337 (2021); Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc); Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008); Webb v. Sloan, 330 F.3d 1158, 1163–64 (9th Cir. 2003); Hopper v. City of Pasco, 241 F.3d 1067, 1082 (9th Cir. 2001).

Municipal liability claims under § 1983 require a plaintiff to show an underlying constitutional violation.  See Lockett v. Cnty. of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020).  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.”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017) (explaining a Bivens claim is brought against the individual official for his or her own acts, not the acts of others; its purpose being to deter the officer); 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; Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (en banc) (“To [prevail on a claim against a municipal entity for a constitutional violation], 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.”); Pasadena Republican Club, 985 F.3d at 1172 (“To establish Monell liability under § 1983, the constitutional violation must be caused by a municipality’s ‘policy, practice, or custom’ or be ordered by a policy-making official.”); Fogel, 531 F.3d at 834; Webb, 330 F.3d at 1164; 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); Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 845 (9th Cir. 2016) (same); 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 Cnty., Cal. v. Humphries, 562 U.S. 29, 34 (2010).

(a)     Municipal Policy

“In order to establish municipal liability, a plaintiff must show that a ‘policy or custom’ led to the plaintiff’s injury.” Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc) (quoting Monell v. Department of Social Services, 436 U.S. 658, 694 (1978)); see also J. K. J. v. City of San Diego, 42 F.4th 990, 998 (9th Cir. 2021) (as amended); Endy v. Cnty. Of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020); Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 845 (9th Cir. 2016) (“[P]laintiffs who seek to impose liability on local governments under § 1983 must prove that action pursuant to official municipal policy caused their injury.” (internal quotation marks and citations omitted)).  “The custom or policy must be a ‘deliberate choice to follow a course of action ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.’”  Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (quoting Castro, 833 F.3d at 1075).

“The [Supreme] Court has further required that the plaintiff demonstrate that the policy or custom of a municipality ‘reflects deliberate indifference to the constitutional rights of its inhabitants.’”  Castro, 833 F.3d at 1060 (quoting City of Canton v. Harris, 489 U.S. 378, 392 (1989)).  The deliberate indifference standard for municipal liability under § 1983 is an objective inquiry.  Castro, 833 F.3d at 1076 (overruling Gibson v. Cnty. of Washoe, 290 F.3d 1175 (9th Cir. 2002)).

“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); Endy, 975 F.3d at 769.  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 & Cnty. 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 Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1141 (9th Cir. 2020); Brown v. Lynch, 831 F.3d 1146, 1152 (9th Cir. 2016); Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 713 (9th Cir. 2010); Long v. Cnty. 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).  See also Horton by Horton v. City of Santa Maria, 915 F.3d 592, 604 (9th Cir. 2019) (“[C]onstitutional deprivations may occur not ... as a result of actions of the individual officers, but as a result of the collective inaction of the municipal defendant.” (internal quotation marks and citation omitted)).

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); Brown v. Lynch, 831 F.3d 1146, 1152 (9th Cir. 2016); 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; 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.”); 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. Cnty. 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; Gordon v. Cnty. of Orange, 6 F.4th 961, 974 (9th Cir. 2021); Trevino v. Gates, 99 F.3d 911, 920–21 (9th Cir. 1996).  “[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 v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). 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 that gave rise to the alleged constitutional violation.  See City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Gordon v. Cnty. of Orange, 6 F.4th 961, 974 (9th Cir. 2021) (“An unconstitutional policy need not be formal or written to create municipal liability under Section 1983; however, it must be so permanent and well settled as to constitute a custom or usage with the force of law.” (internal quotation marks and citation omitted)); Navarro v. Block, 72 F.3d 712, 714–15 (9th Cir. 1996).  Allegations of random acts, or single instances of misconduct, however, are insufficient to establish a municipal custom.  See Gordon, 6 F.4th at 974 (“‘Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.’” (quoting Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996))); Navarro, 72 F.3d at 714.  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; see also Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1234 n.9 (9th Cir. 2011).  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); Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 846 (9th Cir. 2016); Flores v. Cnty. of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014); 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. Cnty. 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 Cnty., Nev., 319 F.3d 465, 471 (9th Cir. 2003) (en banc); Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002) (per curiam); see especially Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 409–10 (1997) (discussing limited scope of such a claim).  “A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted).  See also Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1153–54 (9th Cir. 2021).

To allege a failure to train, a plaintiff must include sufficient facts to support a reasonable inference (1) of a constitutional violation; (2) of a municipal training policy that amounts to a deliberate indifference to constitutional rights; and (3) that the constitutional injury would not have resulted if the municipality properly trained their employees.

Benavidez, 993 F.3d at 1153–54.

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. Cnty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989) (internal citations omitted); see also Connick, 563 U.S. at 61 (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 City of Canton, 489 U.S. at 388)); Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir. 2007); Merritt, 875 F.2d at 770.

“Under this standard, a municipal defendant can be held liable because of a failure to properly train its employees only if the failure reflects a “conscious” choice by the government.”  Kirkpatrick v. Cnty. of Washoe, 843 F.3d 784, 793 (9th Cir. 2016) (en banc).  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. Cnty. of Shasta, 137 F.3d 1372, 1372 (9th Cir. 1998) (order) (amending originally filed 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); see also Kirkpatrick, 843 F.3d at 794.  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); Oviatt, 954 F.2d at 1478.  “Satisfying this standard requires proof that the municipality had actual or constructive notice that a particular omission in their training program will cause municipal employees to violate citizens’ constitutional rights.” Kirkpatrick, 843 F.3d at 794 (internal quotation marks, alterations and citations omitted).  In order “to demonstrate that the municipality was on notice of a constitutionally significant gap in its training, it is ordinarily necessary for a plaintiff to demonstrate a pattern of similar constitutional violations by untrained employees.”  Id. (internal quotations marks omitted).  The deliberate indifference standard for municipal liability under § 1983 is an objective inquiry.  Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir. 2016) (en banc) (overruling Gibson v. Cnty. of Washoe, 290 F.3d 1175 (9th Cir. 2002)).

(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 Cnty. 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. Cnty. 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).

Prior to Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), this court 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. Cnty. 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.”).

The Supreme Court’s decisions in Twombly and Iqbal established a more demanding pleading standard.  In Twombly, the Supreme Court held that a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.”  Twombly, 550 U.S. at 570.  In Iqbal, the Supreme Court held that “bare assertions” that “amount to nothing more than a formulaic recitation of the elements of a [ ] claim” are not entitled to “presumption of truth,” and that the district court, after disregarding “bare assertions” and conclusions, must “consider the factual allegations in [a] complaint to determine if they plausibly suggest an entitlement to relief” as opposed to a claim that is merely “conceivable.”  Iqbal, 556 U.S. 679–80.

After Twombly and Iqbal, the court in Starr v. Baca, 652 F.3d 1202, 1212–16 (9th Cir. 2011), identified and addressed conflicts in the Supreme Court’s jurisprudence on the pleading requirements applicable to civil actions.  The court held that whatever the differences between the Supreme Court cases, there were two principles common to all:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).  In AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012), this court held that the Starr standard applied to pleading policy or custom for claims against municipal entities.

Although the standard for stating a claim became stricter after Twombly and Iqbal, the filings and motions of pro se inmates continue to be construed liberally. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (as amended) (explaining that Twombly and Iqbal “did not alter the courts’ treatment of pro se filings,” and stating, “[w]hile the standard is higher [under Iqbal], our obligation remains, where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.” (internal citation omitted)).

For discussion of the 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); Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (explaining agencies of the state are immune under the Eleventh Amendment from private damages or suits for injunctive relief brought in federal court); 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), abrogated on other grounds as recognized by Walden v. Nevada, 945 F.3d 1088, 1094 n.2 (9th Cir. 2019); 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 following factors must be examined: 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 the name of the state, and the corporate status of the entity.

Mitchell v. Los Angeles Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988).  See also Crowe v. Oregon State Bar, 989 F.3d 714, 731 (9th Cir.), cert. denied sub nom. Gruber v. Oregon State Bar, 142 S. Ct. 78 (2021), and cert. denied, 142 S. Ct. 79 (2021); Ray v. Cnty. of Los Angeles, 935 F.3d 703, 709 (9th Cir. 2019); Del Campo v. Kennedy, 517 F.3d 1070, 1077 (9th Cir. 2008); Beentjes v. Placer Cnty. 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. Cnty. of Los Angeles, 236 F.3d 552, 566 (9th Cir. 2001).

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.  “Moreover, the second … factor inquiry must be guided by ‘[t]he treatment of the entity under state law.’”  Crowe, 989 F.3d at 732 (quoting Durning, 950 F.2d at 1426).

The third factor of the test is entitled to less weight than the first two factors.  See Crowe, 989 F.3d at 733; Holz, 347 F.3d at 1187–88; Aguon, 316 F.3d at 903.

e.       State Officials

There are … two situations in which a state official might be liable to suit under the statute. First, plaintiffs may seek damages against a state official in his personal capacity.  Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016).  Second, state officials are “persons” under § 1983 when sued for prospective injunctive relief.  [Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989)].  This exception for prospective injunctive relief, called the Ex parte Young doctrine, applies where a plaintiff “alleges an ongoing violation of federal law, and where the relief sought is prospective rather than retrospective.” [Doe v. Lawrence Livermore Nat’l Lab’y, 131 F.3d 836, 839 (9th Cir. 1997) (quoting Idaho v. Coeur d’Alene Tribe, [521 U.S. 261, 294 (1997) (O’Connor, J., concurring)).

Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022).

(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); Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022) (“Cornel cannot seek damages from Hawai‘i and the parole office because they are not ‘persons’ under § 1983.”); 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 prospective injunctive relief, however, are persons for purposes of § 1983.  See Will, 491 U.S. at 71 n.10; Cornel, 37 F.4th at 531 (stating that “state officials are ‘persons’ under § 1983 when sued for prospective injunctive relief”); 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 Paeste v. Gov’t of Guam, 798 F.3d 1228, 1235–40 (9th Cir. 2015) (discussing distinction between suits seeking damages and suits seeking prospective relief); 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

“By its essential nature, an individual or personal capacity suit against an officer seeks to hold the officer personally liable for wrongful conduct taken in the course of her official duties.”  Pistor v. Garcia, 791 F.3d 1104, 1114 (9th Cir. 2015).  State officials sued in their personal capacity are persons for purposes of § 1983.  See Cornel v. Hawaii, 37 F.4th 527, 531 (9th Cir. 2022) (stating that “plaintiffs may seek damages against a state official in his personal capacity.”); Hafer v. Melo, 502 U.S. 21, 31 (1991); Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (explaining the Eleventh Amendment does not bar claims for damages against state officials in their personal capacities); 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 Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016); 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.(6). 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

“There is no ‘rigid formula’ for determining whether a state or local law official is acting under color of state law.”  Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir. 2006).  “The Supreme Court has developed four different tests that ‘aid … in identifying state action: ‘(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus.’” Pasadena Republican Club v. W. Just. Ctr., 985 F.3d 1161, 1167 (9th Cir.), cert. denied, 142 S. Ct. 337 (2021) (quoting Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747–48 (9th Cir. 2020), cert. denied, 142 S. Ct. 69 (2021)).  “[S]atisfaction of any one test is sufficient to find state action … .”  Pasadena Republican Club, 985 F.3d at 1167 (internal quotation marks and citation omitted).  See also Rawson, 975 F.3d at 747.

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 Pasadena Republican Club, 985 F.3d at 1167 (explaining that to determine whether a private person or corporation acts under color of state law, the courts must engage in sifting facts and weighing circumstances to answer what is necessarily a fact-bound inquiry); Brunette v. Humane Soc’y of Ventura Cnty., 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 Cnty. v. Dodson, 454 U.S. 312, 317–18 (1981); Pasadena Republican Club, 985 F.3d at 1167; Rawson, 975 F.3d at 748 (9th Cir. 2020); 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).  “The Supreme Court has … held that private parties may act under color of state law when they perform actions under which the state owes constitutional obligations to those affected.”  Rawson, 975 F.3d at 753 (discussing West, 487 U.S. at 54–55).

“Actions taken pursuant to a municipal ordinance are made ‘under color of state law.’”  See Coral Constr. Co. v. King Cnty., 941 F.2d 910, 926 (9th Cir. 1991), overruled on other grounds by Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195 (9th Cir. 2019) (en banc).

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. Cnty. 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. Cnty. of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998); Johnson, 113 F.3d at 1117–18.  In other words, “a government employee does not act under color of state law when he pursues private goals via private actions.”  Naffe v. Frey, 789 F.3d 1030, 1037 (9th Cir. 2015).

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); Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 2015) (explaining that a state employee generally acts under the color of state law when the employee “wrongs someone while acting in his official capacity or while exercising his responsibilities pursuant to state law”) (internal quotation marks and citation omitted)); 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).

“[W]hen the state employee is off duty, whether he or she is acting under color of state law turns on the nature and circumstances of the [employee’s] ... conduct and the relationship of that conduct to the performance of his official duties.”  Naffe, 789 F.3d at 1036 (alterations in original) (internal quotation marks and citation omitted).

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)     Police Officers

[The Ninth Circuit] has developed a three-part test for determining when a police officer, although not on duty, has acted under color of state law.  The officer must have: (1) acted or pretended to act in the performance of his official duties; (2) invoked his status as a law enforcement officer with the purpose and effect of influencing the behavior of others; and (3) engaged in conduct that “related in some meaningful way either to the officer’s governmental status or to the performance of his duties.”  Anderson v. Warner, 451 F.3d 1063, 1068–69 (9th Cir. 2006) (internal quotation marks omitted).

Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020).  “[T]he critical question is not whether the officers were technically on or off duty, but instead whether they exhibited sufficient indicia of state authority … to conclude that they were acting in an official capacity.”  Id. at 1140–41 (holding that officers were not acting under color of state law when they failed to stop fellow officer from recklessly attempting to load his already-loaded firearm while intoxicated).

(3)     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, 565 U.S. 118, 120, 132 n.* (2012) (holding that prisoner could not assert an Eighth Amendment Bivens claim for damages against private prison employees; note that Justice Ginsberg’s dissent noted that petitioners did not seek Supreme Court review of the Ninth Circuit’s determination that petitioners acted under color of federal law).

“[P]rison officials charged with executing facially valid court orders enjoy absolute immunity from section 1983 liability for conduct prescribed by those orders.” Engebretson v. Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013).  However, if the prison official fails to strictly comply with the order, the immunity does not apply.  See Garcia v. Cnty. of Riverside, 817 F.3d 635, 644 (9th Cir. 2016).

(4)     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).  See also Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 757 (9th Cir. 2020), cert. denied, 142 S. Ct. 69 (2021) (determining that private mental hospital and hospital personnel that allegedly wrongfully detained patient who was involuntarily committed, and forcibly injected him with antipsychotic medications acted under color of state law, as required to support § 1983 due process claim).

(5)     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 Cnty. v. Dodson, 454 U.S. 312, 320–25 (1981); Jackson v. Brown, 513 F.3d 1057, 1079 (9th Cir. 2008); Miranda v. Clark Cnty., 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 Cnty. 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 Cnty. 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 Cnty., 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 Cnty., 454 U.S. at 323 n.13)), abrogated by Filarsky v. Delia, 566 U.S. 377, 393–94 (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 Cnty., 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).

(6)     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 Cnty. 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).

“[P]rivate parties may act under color of state law when the state significantly involves itself in the private parties’ actions and decisionmaking at issue.”  Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 753 (9th Cir. 2020), cert. denied, 142 S. Ct. 69 (2021).

A private individual’s actions can only be considered state action if a “sufficiently close nexus” makes private action “treat[able] as that of the [government entity] itself.”  Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L.Ed.2d 534 (1982) (citation omitted).  Merely “authoriz[ing],” “approv[ing,] or acquiesc[ing]” to private action—such as the “creation or modification of any legal remedy”—is not enough to show state action.  Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52–53, 119 S. Ct. 977, 143 L.Ed.2d 130 (1999) (citations omitted).  And an “[a]ction by a private party pursuant to [a] statute, without something more, [is] not sufficient to justify a characterization of that party as a ‘state actor.’”  Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S. Ct. 2744, 73 L.Ed.2d 482 (1982).

Ballinger v. City of Oakland, 24 F.4th 1287, 1300 (9th Cir.), cert. denied sub nom. Ballinger v. City of Oakland, California, 142 S. Ct. 2777 (2022).

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. Cnty. 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);