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); 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).
“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).
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); 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); 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.
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).
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.
“[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. 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
Cty., Nev., 319 F.3d 465, 469 (9th Cir. 2003) (en banc); see also Castro v. Cty. 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), cert. denied
sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831, (2017). 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. Cty. of Los Angeles, 885 F.3d
548, 558 (9th Cir. 2018) (quoting Streit v. County of Los Angeles, 236
F.3d 552, 559 (9th Cir. 2001)); Rivera v. Cty. 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)).
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); Castro v. Cty. of Los
Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc), cert. denied sub nom. Los Angeles Cty., Cal.
v. Castro, 137 S. Ct. 831 (2017); 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). “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.” Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 793 (9th Cir. 2016)
(en banc).
“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 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; 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. Cty. 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 Cty., Cal. v. Humphries, 562 U.S. 29, 34 (2010).
“In order to establish municipal liability, a plaintiff must show
that a ‘policy or custom’ led to the plaintiff's injury.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016)
(en banc), cert. denied sub nom. Los
Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017) (quoting Monell v.
Department of Social Services, 436 U.S. 658, 694 (1978)); see also Garmon v. Cty. 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 [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.
County 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). 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 Brown v. Lynch, 831 F.3d 1146, 1152 (9th Cir. 2016); 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); 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. 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).
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”).
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. Cty. of Los Angeles, 828 F.3d
837, 846 (9th Cir. 2016); Flores v. Cty.
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. 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);
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 City of 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.
“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. Cty. 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. 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);
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); Alexander
v. City of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994), abrogated on other grounds by Cty. of Los
Angeles, Cal. v. Mendez, 137 S. Ct. 1539, 1546 (2017); 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. Cty. of Los Angeles, 833 F.3d 1060, 1076 (9th Cir.
2016) (en banc), cert. denied sub nom.
Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017) (overruling Gibson v. County of Washoe, 290 F.3d
1175 (9th Cir. 2002)).
There is no heightened pleading standard with respect to the
“policy or custom” requirement of demonstrating municipal liability. See
Leatherman, 507 U.S. at 167–68;
see also Empress LLC, 419
F.3d at 1055; Galbraith, 307 F.3d at 1124; Lee v. City of Los Angeles,
250 F.3d 668, 679–80 (9th Cir. 2001); Evans v. McKay, 869 F.2d 1341,
1349 (9th Cir. 1989).
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. 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.”).
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. Cty. 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.
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 Cty.
Dep’t of Educ., 861 F.3d 923, 928 (9th Cir.) (explaining agencies of the
state are immune under the Eleventh Amendment from private damages or suits for
injunctive relief brought in federal court), cert. denied, 138 S. Ct. 459 (2017); 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).
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.
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 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.
State officials sued in their personal capacity are persons for
purposes of § 1983. See 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.
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.
“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.
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.
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).
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. Cty. of Riverside, 817
F.3d 635, 644 (9th Cir.), cert. denied
sub nom. Baca v. Garcia, 137 S. Ct. 344 (2016).
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).
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,
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 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).
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 pleading requirements, see infra I.D.2.b and II.A.1.b.(1).
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).
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).
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); Henry A. v. Willden,
678 F.3d 991, 1005 (9th Cir. 2012); 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). For a statutory provision to be privately
enforceable, however, it must create an individual right. Blessing,
520 U.S. at 340; Henry A., 678 F.3d
at 1005.
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.
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).
“[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).
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 Lacey v. Maricopa Cty., 693 F.3d 896, 915 (9th Cir.
2012) (en banc); 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
Rodriguez v. Cty. of Los Angeles,
891 F.3d 776, 798 (9th Cir. 2018); 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).
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.
“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.”); Rodriguez
v. Cty. of Los Angeles, 891 F.3d
776, 798 (9th Cir. 2018) (explaining a supervisory official is liable under §
1983 “if there exists either (1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.” (quotation marks
and citation omitted)); King v. Cty. of Los Angeles, 885 F.3d 548, 559
(9th Cir. 2018) (same); Keates v. Koile, 883 F.3d 1228, 1242–43 (9th
Cir. 2018) (same). “‘The requisite
causal connection can be established ... by setting in motion a series of acts
by others or by knowingly refus[ing] to terminate a series of acts by others,
which [the supervisor] knew or reasonably should have known would cause others
to inflict a constitutional injury.’” Rodriguez, 891 F.3d at 798 (quoting Starr v. Baca, 652 F.3d 1202,
1207 (9th Cir. 2011); see also King, 885 F.3d at 559.
See
also 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).
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).
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).
“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).
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.
“Absolute immunity ‘is an extreme remedy, and it is justified
only where any lesser degree of immunity could impair the judicial process
itself.’” Garmon v. Cty. of Los Angeles,
828 F.3d 837, 843 (9th Cir. 2016) (quoting Lacey
v. Maricopa Cty., 693 F.3d 896, 912 (9th Cir. 2012) (en banc)). See also
Brooks v. Clark Cty., 828 F.3d 910, 915–16 (9th Cir. 2016) (discussing
absolute immunity).
“The ‘official seeking absolute immunity bears the burden of
showing that such immunity is justified for the function in question.’” Garmon,
828 F.3d at 843 (quoting Burns v. Reed,
500 U.S. 478, 486 (1991)).
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).
“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 Brooks v. Clark Cty., 828 F.3d 910, 917–18 (9th Cir. 2016)
(concluding “neither precedent nor first principles justify giving courtroom
officials absolute immunity when they allegedly use force in excess of what
their judge commanded and the Constitution allows.”); Burton v. Infinity Capital
Mgmt., 862 F.3d 740, 747–48
(9th Cir. 2017) (applying functional approach); 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).
“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); Brooks v. Clark Cty.,
828 F.3d 910, 915–16 (9th Cir. 2016); Garmon v. Cty. of Los Angeles,
828 F.3d 837, 843 (9th Cir. 2016) (“The ‘official seeking absolute immunity
bears the burden of showing that such immunity is justified for the function in
question.’” Garmon, 828 F.3d at
843 (quoting Burns v. Reed, 500 U.S. 478, 486 (1991))); 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). “The justification must take care to
explain why the official hoping to secure absolute immunity would not be
sufficiently shielded by qualified immunity, which already affords officials
considerable leeway to perform their jobs without fear of personal liability.” Brooks,
828 F.3d at 916 (concluding courtroom marshal was not entitled to absolute
immunity).
“[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.
“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).
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).
“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.
“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); Brooks v. Clark
Cty., 828 F.3d 910, 916 & n.3 (9th Cir. 2016); 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.
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).
“[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).
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).
“[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).
“The need to ‘free [ ] the judicial process of harassment or
intimidation’ has led courts to extend absolute judicial immunity beyond the
judges themselves, including ‘to Executive Branch officials who perform
quasi-judicial functions.’ Brooks
v. Clark Cty., 828 F.3d 910, 916 (9th Cir. 2016) (quoting Forrester v.
White, 484 U.S. 219, 225–26 (1988)). “In all cases, the Supreme Court has
emphasized that immunity is justified and defined by the functions it
protects and serves, not by the person to whom it attaches.” Brooks, 828 F.3d at 916 (concluding that
neither precedent nor first principles justify giving courtroom officials
absolute immunity when they allegedly use force in excess of what their judge
commanded and the Constitution allows).
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). However, the Ninth Circuit has found that a
courtroom marshal was not entitled to absolute immunity when he allegedly used
force in excess of what his judge commanded and the Constitution allows. See Brooks,
828 F.3d at 916–19.
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.
“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).
Prosecutorial
immunity applies to § 1983 claims. [Imbler
v. Pachtman, 424 U.S. 409, 427 (1976)]. State prosecutors are absolutely
immune from § 1983 actions when performing functions “intimately associated
with the judicial phase of the criminal process,” id. at 430, 96 S. Ct.
984, or, phrased differently, “when performing the traditional functions of an
advocate.” Kalina v. Fletcher, 522 U.S. 118, 131, 118 S. Ct. 502, 139 L.
Ed. 2d 471 (1997).
Garmon
v. Cty. of Los Angeles, 828 F.3d 837, 842–43 (9th Cir. 2016). See also Imbler, 424 U.S. at 430; 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) (en banc); Ewing
v. City of Stockton, 588 F.3d 1218, 1232–33 (9th Cir. 2009); Kalina, 522 U.S. at 124–26; 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. When performing “administrative functions,” or “investigative
functions normally performed by a detective or police officer,” qualified
immunity, rather than absolute immunity, applies. Garmon,
828 F.3d at 843. Note, application of
the functional approach means that absolute immunity may extend to some acts
but not to others, “even though all of plaintiffs’ claims are predicated on the
same constitutional violation.” Torres v. Goddard, 793 F.3d 1046, 1056
(9th Cir. 2015).
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, 693 F.3d at 931 (“Decisions related to
appointments and removals in a particular matter will generally fall within the
exercise of the judge’s or prosecutor’s judicial and quasi-judicial roles and
are shielded from suit by absolute immunity.”);
·
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 341–43; 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;
·
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);
·
preparing warrants, warrant applications and
factual affidavits, see Torres, 793
F.3d at 1053–54; and
·
issuing subpoena duces tecum, where “it was
issued in preparation for evaluating and countering a defense witness’s
testimony,” and it was clear the subpoena “subpoena was directed at obtaining
evidence in preparation for trial. Garmon,
828 F.3d at 844.
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); Torres, 793 F.3d at
1055–56 (serving and executing seizure warrants); 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); see also
Garmon, 828 F.3d at 844–45 (not entitled to absolute immunity for
presenting a false statement in a declaration supporting application for the
subpoena duces tecum);
·
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.
Prosecutorial immunity extends to actions during both the
pre-trial and post-trial phase of a case. See Demery, 735 F.2d at 1144.
“[A]bsolute immunity is available to prosecutors in the context
of civil forfeiture proceedings.” Torres
v. Goddard, 793 F.3d 1046, 1052 (9th Cir. 2015).
“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.
“An attorney supervising a trial prosecutor who is absolutely
immune is also absolutely immune. … So are prosecutors who conducted general
office supervision or office training.” Garmon, 828 F.3d at 845. However, the supervising attorney will only
be immune to the same extent as those he is supervising. Id.
(explaining that nothing permits the court to grant a supervising prosecutor
absolute immunity for supervising an activity that’s not protected by absolute
immunity).
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).
“Prosecutors enjoy immunity when they take ‘action that only a
legal representative of the government could take.’” Burton v. Infinity Capital Mgmt., 862 F.3d 740, 748 (9th Cir. 2017)
(quoting Stapley v. Pestalozzi, 733
F.3d 804, 812 (9th Cir. 2013)). Note the
Supreme Court has not extended immunity beyond the prosecutorial function. Burton,
862 F.3d at 748. For example, “[e]ven
court-appointed defense attorneys do not enjoy immunity because, despite being
‘officers’ of the court, ‘attorneys [are not] in the same category as marshals,
bailiffs, court clerks or judges.’” Burton, 762 F.3d at 748 (quoting Ferri
v. Ackerman, 444 U.S. 193, 202 n.19 (1979)). 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).
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).
“[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 Hardwick
v. Cty. of Orange, 844 F.3d 1112, 1116 (9th Cir. 2017) (concluding that
social workers were not entitled to absolute immunity); 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).
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).
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.
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); 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).
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).
[T]he
Supreme Court has emphasized [the] functional approach for determining when
public officials may claim absolute immunity under § 1983. An official must be
“performing a duty functionally comparable to one for which officials were
rendered immune at common law,” and “it is only the specific function
performed, and not the role or title of the official, that is the touchstone of
absolute immunity.
Engebretson
v. Mahoney, 724 F.3d 1034, 1039 (9th Cir. 2013) (as amended). In Engebretson,
the court held that “prison officials charged with executing facially valid
court orders enjoy absolute immunity from § 1983 liability for conduct
prescribed by those orders.” Id. In contrast, absolute immunity has not been
extended to prison officials acting in non-judicial capacities, acting outside
his or her authority, or to those who failed to strictly comply with court
orders. See Procunier v. Navarette,
434 U.S. 555, 561 (1978); Garcia v. Cty.
of Riverside, 817 F.3d 635, 644 (9th Cir.), cert. denied sub nom. Baca v. Garcia, 137 S. Ct. 344 (2016); Engebretson, 724 F.3d at 1038 n.2
(identifying cases where the court has declined to extend absolute immunity to
judges and prison, school, and executive officials). 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).
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). See also Burton v. Infinity Capital Mgmt., 862
F.3d 740, 748 (9th Cir. 2017) (explaining that “[e]ven court-appointed defense
attorneys do not enjoy immunity because, despite being ‘officers’ of the court,
‘attorneys [are not] in the same category as marshals, bailiffs, court clerks or
judges.’” (Ferri v. Ackerman, 444 U.S. 193, 202 n.19 (1979)). For
a discussion of public defenders not acting under color of state law for
purposes of § 1983, see supra I.A.2.b.(4).
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). Cf. Tennison
v. City & Cty. of San Francisco, 570 F.3d 1078, 1092 (9th Cir. 2009) (analyzing
(and ultimately rejecting) investigative law enforcement officers’ contention
that they were entitled to absolute immunity under the functional approach;
although doubting the officers would ever be entitled to absolute immunity, the
court assumed the application of absolute immunity was not barred as a matter
of law).
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).
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).
“[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, 572 U.S. 744, 757 (2014) (“The
doctrine of qualified immunity protects government officials from liability for
civil damages … .”); Hernandez v. City of
San Jose, 897 F.3d 1125, 1132 (9th Cir. 2018); 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
attaches when an official’s conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Kisela v. Hughes, 138
S. Ct. 1148, 1152 (2018) (per curiam) (quoting White v. Pauly,
137 S. Ct. 548, 551 (2017) (per curiam)); Foster
v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (per curiam); Reese v. Cty. of Sacramento, 888 F.3d
1030, 1037 (9th Cir. 2018). The
reasonableness of the officer’s conduct is “judged against the backdrop of the
law at the time of the conduct.” Kisela,
138 S. Ct. at 1152 (quotation marks and citation omitted).
“Qualified immunity, however, is a defense available only to
government officials sued in their individual capacities. It is not
available to those sued only in their official capacities.” Cmty.
House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010).
Qualified immunity is only an immunity from suit for damages, it
is not an immunity from suit for declaratory or injunctive relief. See Hydrick v. Hunter, 669 F.3d 937, 940–41 (9th Cir. 2012); 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).
“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); see also Ioane v. Hodges,
903 F.3d 929, 933 (9th Cir. 2018). 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, 555 U.S. at 236.
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); Ioane,
903 F.3d at 933; 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). “If there is no constitutional violation, the
inquiry ends and the officer is entitled to qualified immunity.” Ioane,
903 F.3d at 933.
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, 572
U.S. 744, 757 (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, 563 U.S. 731,
735 (2011)); Brosseau, 543 U.S. at 199–201; Hope, 536 U.S. at 739; Rodriguez v. Swartz, 899 F.3d 719, 728
(9th Cir. 2018); Hernandez v. City of San
Jose, 897 F.3d 1125, 1132 (9th Cir. 2018); 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. “When this test is properly applied, it
protects ‘all but the plainly incompetent or those who knowingly violate the
law.’” Hernandez, 897 F.3d at 1132–33
(quoting Ashcroft v. al-Kidd, 563 U.S. at 743); see also Reese v. Cty. of Sacramento, 888 F.3d 1030, 1037 (9th Cir.
2018). 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, 572 U.S. 765, 774 (2014); Ioane, 903
F.3d at 933 (“While we have discretion to begin our analysis with either part
of the test, Pearson, 555 U.S.
at 236, [ ], it is nevertheless beneficial to begin with the first part of the
test … .”); Scott v. Cty. of San Bernardino,
903 F.3d 943, 948 (9th Cir. 2018) (“‘These two prongs of the analysis need not
be considered in any particular order, and both prongs must be satisfied for a
plaintiff to overcome a qualified immunity defense.’” (quoting Shafer v. Cty. of Santa Barbara, 868 F.3d
1110, 1115 (9th Cir. 2017)); 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).
“[W]hether a constitutional right was violated … is a question of
fact.” Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th
Cir. 2009).
“[T]he ‘clearly established’ inquiry is a question of law that
only a judge can decide.” Morales v. Fry, 873 F.3d 817, 821 (9th
Cir. 2017); see also Reese v. Cty. of
Sacramento, 888 F.3d 1030, 1037 (9th Cir. 2018); Tortu, 556 F.3d at 1085 (explaining that
“whether a constitutional right was violated ... is a question of fact” for the
jury, while “whether the right was clearly established ... is a question of
law” for the judge); Serrano v. Francis,
345 F.3d 1071, 1080 (9th Cir. 2003) (whether the law at the time of the alleged
constitutional violation was clearly established is a “purely legal” issue). However,
a “bifurcation of duties is unavoidable: only the jury can decide the disputed
factual issues, while only the judge can decide whether the right was clearly
established once the factual issues are resolved.” Reese, 888 F.3d at 1037 (internal
quotation marks and citation omitted).
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 Ziglar v. Abbasi, 137 S. Ct.
1843, 1866 (2017) (“Whether qualified immunity can be invoked turns on the
‘objective legal reasonableness’ of the official’s acts.”); Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (stating
objective reasonableness turns on the “facts and circumstances of each
particular case.); Plumhoff, 572 U.S.
at 775–76.
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);
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).
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, not as a broad general proposition.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Brosseau
v. Haugen, 543 U.S. 194,
198 (2004) (per curiam)
(quoting 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 S.B. v. Cty. of San Diego, 864 F.3d 1010, 1015 (9th Cir.
2017); Nelson v. City of Davis, 685
F.3d 867, 883 (9th Cir. 2012). 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 Mullenix, 136 S. Ct. at 308; City & Cty. of San Francisco, Cal. v.
Sheehan, 135 S. Ct. 1765, 1774 (2015); Hope
v. Pelzer, 536 U.S. 730, 739 (2002); Ioane
v. Hodges, 903 F.3d 929, 937 (9th Cir. 2018); Rodriguez v. Swartz, 899 F.3d 719, 728 (9th Cir. 2018) (“A
constitutional right is clearly established if every reasonable official would
have understood that what he is doing violates that right.” (quotation marks
and citation omitted)); 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); see also Ioane, 903 F.3d
at 937.
“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; Ioane, 903 F.3d at 937 (the court “need
not identify a prior identical action to conclude that the right is clearly
established”); Scott v. Cty. of San
Bernardino, 903 F.3d 943, 951 (9th Cir. 2018) (explaining that although the
constitutional right must be clearly established, there need not be a case
dealing with the particular facts to find the officer’s conduct unreasonable); 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 Osolinski
v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)); see also Ioane, 903 F.3d at 937. 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 Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014); 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).
Although there need not
be “a case directly on point for a right to be clearly established, existing
precedent must have placed the statutory or constitutional question beyond
debate.” Foster v. City of Indio, 908
F.3d 1204, 1210 (9th Cir. 2018) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018)). The court may not “define clearly established
law at a high level of generality.” Kisela, 138 S. Ct. at 1152. “Rather, the clearly established law at issue
‘must be particularized to the facts of the case.’” Foster, 908 F.3d at 1210 (quoting White v. Pauly, 137 S. Ct.
548, 551 (2017) (per curiam)); see also
Ioane, 903 F.3d at 937 (explaining that the right must be
established in a “more particularized” and “more relevant” sense). The “high standard is intended to give
officers breathing room to make reasonable but mistaken judgments about open
legal questions.” Ioane, 903 F.3d at 937 (internal quotation marks and citation
omitted).
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).
[T]he
“clearly established” prong of the qualified immunity analysis is a matter of
law to be decided by a judge. Morales v. Fry, 873 F.3d 817, 824–25 (9th
Cir. 2017). In Morales, we recognized that “the question of whether a
particular constitutional right is ‘clearly established’ is one that the
Supreme Court has increasingly emphasized is within the province of the judge.”
Id. at 822. “[C]omparing a given case with existing statutory or
constitutional precedent is quintessentially a question of law for the judge,
not the jury.” Id. at 823. We recognized, however, that “[a] bifurcation
of duties is unavoidable: only the jury can decide the disputed factual issues,
while only the judge can decide whether the right was clearly established once
the factual issues are resolved.”
Reese
v. Cty. of Sacramento, 888 F.3d 1030, 1037 (9th Cir. 2018).
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).
“[Q]ualified immunity covers only defendants in their individual
capacities.” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 966 (9th
Cir. 2010). As such, 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).
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).
Qualified immunity is not generally available to off-duty police
officers acting as private security guards.
See Bracken v. Okura, 869 F.3d
771, 775, 777–78 (9th Cir. 2017) (applying Richardson,
and holding that qualified immunity was not available to off-duty police officer
who was hired and paid by hotel to provide security, because he was not serving
a public, governmental function while being paid by the hotel to provide
private security).
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).
In Leatherman v. Tarrant Cty. Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 167 (1993), the Supreme Court left open the question whether the Court’s
“qualified immunity jurisprudence would require a heightened pleading standard
in cases involving individual government officials.” After Leatherman,
the Supreme Court concluded that a heightened pleading standard does not apply
to constitutional claims brought against individual defendants in which
improper motive is a necessary element. See Crawford-El v. Britton, 523 U.S.
574, 594–97 (1998); see also Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 512–15 (2002) (declining to impose a
heightened pleading standard in employment discrimination case, explaining that
“Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
exceptions [such as actions brought under Rule 9(b)].”).
The Ninth Circuit has also held that a heightened pleading
standard does not apply to constitutional claims brought against individual
defendants in which improper motive is a necessary element. See Galbraith v. Cty. of Santa Clara,
307 F.3d 1119, 1123–26 (9th Cir. 2002) (overruling Branch
v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (“Branch II”), Branch v.
Tunnell, 937 F.2d 1382 (9th Cir. 1991) (“Branch I”), and their
progeny because they imposed a heightened pleading standard); see also
Empress LLC v. City of San Francisco, 419 F.3d 1052, 1055–56 (9th Cir.
2005) (explaining that “the
logical conclusion of Leatherman, Crawford-El, and Swierkiewicz
dictates that a heightened pleading standard should only be applied when the
Federal Rules of Civil Procedure so require.”); Miranda v. Clark Cty., Nev.,
319 F.3d 465, 470 (9th Cir. 2003) (en banc) (same). However, after Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a “bald allegation of impermissible
motive,” would not be sufficient. Moss
v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009) (discussing Twombly
and Iqbal). The factual content contained
within the complaint must allow a reasonable inference of an improper motive to
satisfy Twombly and Iqbal.
See Moss, 572 F.3d at 972.
“In sum, for a
complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’
and reasonable inferences from that content, must be plausibly suggestive of a
claim entitling the plaintiff to relief.”
Moss, 572 F.3d at 969
(reviewing motion to dismiss on qualified immunity, and explaining the pleading
standard after Twombly and Iqbal).
Qualified immunity has consistently been recognized as an
affirmative defense that must be pled by the defendant. See Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Gomez v. Toledo, 446 U.S. 635, 640 (1980); Frudden v.
Pilling, 877 F.3d 821, 831 (9th Cir. 2017) (“Qualified immunity is an
affirmative defense that the government has the burden of pleading and
proving.”); Camarillo v. McCarthy,
998 F.2d 638, 639 (9th Cir. 1993); Benigni
v. City of Hemet, 879 F.2d 473, 479 (9th Cir. 1988).
Under the amended 28
U.S.C. § 1915, however, “the court shall dismiss the case at any time if
the court determines that the action or appeal seeks monetary relief against a
defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B)(iii); see
also 42 U.S.C. § 1997e(c)(1).
Section 1915A authorizes courts to dismiss complaints on similar grounds
“before docketing, if feasible or, in any event, as soon as practicable after
docketing” where the complaint concerns a prisoner’s conditions of
confinement. 28 U.S.C. § 1915A(a)
& (b)(2).
The plaintiff bears the burden of proving that the right
allegedly violated was clearly established at the time of the violation; if the
plaintiff meets this burden, then the defendant bears the burden of
establishing that the defendant
reasonably believed the alleged conduct was lawful. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Trevino v. Gates, 99
F.3d 911, 916–17 (9th Cir. 1996);
Browning v. Vernon, 44 F.3d 818, 822
(9th Cir. 1995); Neely v. Feinstein, 50 F.3d 1502, 1509
(9th Cir. 1995), overruled in part
on other grounds by L.W. v.
Grubbs, 92 F.3d 894 (9th Cir. 1996). See also Kramer
v. Cullinan, 878 F.3d 1156, 1164
(9th Cir. 2018) (“The plaintiff bears the burden of demonstrating that the
right at issue was clearly established.”); Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017) (“Qualified
immunity is an affirmative defense that the government has the burden of
pleading and proving.”); Clairmont
v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) (“The plaintiff bears the burden to show that the contours
of the right were clearly established.”).
The court should not allow any discovery until it has resolved
the legal question of whether there is a clearly established right. See
Siegert v. Gilley, 500 U.S. 226, 231
(1991); Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982); Dunn v. Castro,
621 F.3d 1196, 1199 (9th Cir. 2010) (“Qualified
immunity confers upon officials “a right, not merely to avoid ‘standing trial,’
but also to avoid the burdens of ‘such pretrial matters as discovery.”
(internal quotation marks and citation omitted)); Doe v. Petaluma City Sch. Dist., 54 F.3d 1447, 1450 (9th Cir.
1995); Romero v. Kitsap Cty., 931
F.2d 624, 628 n.6 (9th Cir. 1991).
If the court determines that an official is entitled to qualified
immunity on any § 1983 claims for damages that are part of the action, the
court should dismiss those claims prior to discovery. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Anderson v. Creighton, 483 U.S. 635,
646 n.6 (1987).
Under the amended 28 U.S.C. § 1915, the court is authorized
to dismiss sua sponte an “action or appeal [if it] seeks monetary relief
against a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(iii); see also 42
U.S.C. § 1997e(c)(1). The court has
been given similar authorization with respect to pre-filing review of
complaints concerning a prisoner’s conditions of confinement. See 28 U.S.C. § 1915A.
“[A] district court may
dismiss a claim on qualified immunity grounds under 28 U.S.C.
§ 1915(e)(2)(B)(iii), but only if it is clear from the complaint that the
plaintiff can present no evidence that could overcome a defense of qualified
immunity.” Chavez v. Robinson, 817
F.3d 1162, 1169 (9th Cir. 2016), as
amended on reh’g (Apr. 15, 2016). Cf.
Nordstrom v. Ryan, 762 F.3d
903, 908 (9th Cir. 2014) (stating that a pro se complaint can be dismissed only
“if it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” (citation
omitted)). However, the court has
cautioned that “pre-service dismissal on the basis of qualified immunity is
appropriate only in limited circumstances.”
Chavez, 817 F.3d at 1169
(explaining that pro se complaints frequently lack sufficient information for a
judge to make a qualified immunity determination without the benefit of a
responsive pleading, and concluding that pro se complaint did not clearly show that he would be unable to
overcome qualified immunity).
“Claims for injunctive and declaratory relief are unaffected by
qualified immunity.” Hydrick v. Hunter, 669 F.3d 937, 942
(9th Cir. 2012) (stating plaintiffs could proceed with claims for declaratory
and injunctive relief, notwithstanding the court’s holding on qualified
immunity).
“Summary judgment is appropriate if ‘there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.’” Reed v. Lieurance, 863 F.3d
1196, 1204 (9th Cir. 2017) (quoting Fed. R. Civ. P. 56(a)). Although both the “clearly established right”
and “reasonableness” inquiries are questions of law, where there are factual disputes
as to the parties’ conduct or motives, the case cannot be resolved at summary
judgment on qualified immunity grounds. See
Torres v. City of Madera, 648 F.3d
1119, 1123 (9th Cir. 2011) (“Where the objective reasonableness of an officer’s
conduct turns on disputed issues of material fact, it is a question of fact
best resolved by a jury, … , only in the absence of material disputes is it a
pure question of law.” (internal quotation marks and citations omitted)); Lolli v. Cty. of Orange, 351 F.3d 410,
421 (9th Cir. 2003); Wilkins v. City of Oakland, 350 F.3d
949, 955–56 (9th Cir. 2003); Serrano
v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003); Martinez v.
Stanford, 323 F.3d 1178, 1183–85 (9th Cir. 2003). See
also Kisela v. Hughes, 138 S. Ct. 1148 (2018) (per curiam) (holding officer
entitled to qualified immunity and summary judgment, where officer’s use of
force did not violate clearly established law).
The district court’s rejection of a qualified-immunity defense,
insofar as it rests on a question of law, is immediately appealable as a
collateral order. See Behrens v. Pelletier, 516 U.S. 299, 306
(1996); Mitchell v. Forsyth, 472 U.S. 511, 530
(1985); Hernandez v. City of San Jose, 897 F.3d 1125, 1132 (9th Cir. 2018); Wilkinson v. Torres, 610 F.3d 546, 549–50 (9th Cir. 2010); Cmty. House, Inc. v. City of Boise, Idaho,
623 F.3d 945, 968 (9th Cir. 2010); Rodis v. City & Cty. of San Francisco,
558 F.3d 964, 968 (9th Cir. 2009); Bingue v. Prunchak, 512 F.3d 1169, 1172
(9th Cir. 2008); Kennedy v. City of Ridgefield, 439 F.3d
1055, 1059–60 (9th Cir. 2006); Wilkins
v. City of Oakland, 350 F.3d 949, 951–52 (9th Cir. 2003); Cunningham v. City of Wenatchee, 345
F.3d 802, 806–09 (9th Cir. 2003). See also Liberal v. Estrada, 632 F.3d
1064, 1074 (9th Cir. 2011) (explaining no jurisdiction to review denial of
summary judgment to officers on state-law claims where officers disagreed with
district court’s interpretation of the facts, because they were not appealing
the denial of immunity, but rather the denial of summary judgment).
Thus, the appellate court has jurisdiction to determine whether,
taking the plaintiff’s allegations as true, defendants’ conduct violates a
clearly established right.” See Cmty. House, Inc., 623 F.3d at 968; Rodis,
558 F.3d at 968; Bingue, 512 F.3d at 1172–73; Kennedy,
439 F.3d at 1060; Wilkins, 350 F.3d at 951–52; Cunningham,
345 F.3d at 807–09; Thomas v. Gomez, 143 F.3d 1246, 1248
(9th Cir. 1998); Knox v. Sw.
Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997). The appellate court also has jurisdiction to
determine whether, even though facts are in dispute, no account of the
defendants’ conduct could be considered objectively unreasonable. See Knox, 124 F.3d at 1107; see
also Rodriguez v. Maricopa
Cty. Cmty. Coll. Dist., 605 F.3d 703, 707 (9th Cir. 2010).
Finally, the appellate court retains jurisdiction where it need
only determine whether a factual dispute is material. See Bingue, 512 F.3d at 1173; Wilkins, 350 F.3d at 951–52; Cunningham
v. Gates, 229 F.3d 1271, 1286 (9th Cir. 2000); Thomas, 143 F.3d at
1248; Collins v. Jordan, 110 F.3d 1363, 1370 (9th Cir. 1996).
Where, however, the appellate court is being asked to review the
record to determine whether there is sufficient evidence to create a genuine
issue of fact between the parties, it does not have jurisdiction over the
appeal of a denial of qualified immunity. See Johnson v. Jones, 515 U.S. 304, 319–20
(1995); Kennedy, 439 F.3d at 1059–60;
Wilkins, 350 F.3d at 952; Cunningham, 345 F.3d at 807–09; Gates, 229 F.3d at 1286; Thomas, 143 F.3d at 1248–49; Knox, 124 F.3d at 1107.
The denial of qualified immunity may be appealed both at the
dismissal and summary judgment stages. See
Behrens, 516 U.S. at 306–11. If
a defendant fails to appeal a denial of qualified immunity, the issue is waived
on appeal following a jury verdict.
See Price v. Kramer,
200 F.3d 1237, 1244 (9th Cir. 2000).
The Eleventh Amendment to the United States Constitution states
that “[t]he Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI.
“The Amendment … enacts a sovereign immunity from suit, rather than a
nonwaivable limit on the Federal Judiciary’s subject-matter jurisdiction.” Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997). See
also Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir.)
(explaining agencies of the state are immune under the Eleventh Amendment from
private damages or suits for injunctive relief), cert. denied, 138 S. Ct. 459 (2017); Stilwell v. City of Williams, 831 F.3d 1234, 1245 (9th Cir. 2016)
(section 1983 did not abrogate States’ Eleventh Amendment immunity).
“The Eleventh Amendment prohibits federal courts from hearing
suits brought against an unconsenting state.
Though its language might suggest otherwise, the Eleventh Amendment has
long been construed to extend to suits brought against a state by its own
citizens, as well as by citizens of other states.” Brooks v. Sulphur Springs
Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir. 1991) (internal citations omitted); see also N. E. Med. Servs., Inc. v. Cal. Dep’t of
Health Care Servs., Health & Human Servs. Agency, Cal., 712 F.3d 461, 466 (9th Cir. 2013); Tennessee v. Lane, 541 U.S. 509, 517
(2004); Idaho v. Coeur d’Alene Tribe
of Idaho, 521 U.S. 261, 267–68
(1997); Clark v. California, 123 F.3d 1267, 1269 (9th Cir. 1997).
The Eleventh Amendment bars suits against state agencies, as well
as those where the state itself is named as a defendant. See P.R. Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Beentjes v. Placer Cty. Air Pollution
Control Dist., 397 F.3d 775, 777 (9th Cir. 2005); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th Cir.
2003); see also Lucas v. Dep’t of Corr.,
66 F.3d 245, 248 (9th Cir. 1995) (per
curiam) (stating that Board of Corrections is agency entitled to
immunity); ldinst HYPERLINK
"http://www.westlaw.com/find/deTaylor v. List, 880 F.2d 1040, 1045 (9th
Cir. 1989) (concluding that Nevada
Department of Prisons was a state agency entitled to Eleventh Amendment
immunity); cf. Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988) (stating that Eleventh Amendment
requires examination of the complaint and relief sought to determine whether
the state is the “real party in interest”).
For a discussion of when an agency is an arm of the state, see supra I.A.1.d.
The Eleventh Amendment also bars damages actions against state
officials in their official capacity, see Flint v. Dennison, 488
F.3d 816, 824–25 (9th Cir. 2007); Doe
v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.
1997); Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 1995); Pena
v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (per curiam), but does not bar suits against
state officials seeking prospective relief, see infra I.D.3.b.(2).
Except for suits for prospective relief filed against state
officials, the Eleventh Amendment bars suit regardless of the relief
sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984); N. E. Med. Servs., Inc., 712 F.3d at 466 (stating “the Eleventh Amendment generally does not bar suits for
prospective, non-monetary relief against state officers); Brooks, 951 F.2d at 1053, 1053 n.1; S. Pac. Transp. Co. v. City of Los Angeles,
922 F.2d 498, 508 (9th Cir. 1990).
“[A]n entity invoking
Eleventh Amendment immunity bears the burden of asserting and proving those
matters necessary to establish its defense.” Sato, 861 F.3d at 928.
State sovereign immunity does not extend to county and municipal
governments, unless state law treats them as arms of the state. See Sato
v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir.), cert. denied, 138 S. Ct. 459 (2017); see also Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 690 n.54 (1978); Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Beentjes v. Placer Cty. Air Pollution
Control Dist., 397 F.3d 775, 777 (9th Cir. 2005); Holz v. Nenana City Pub. Sch. Dist., 347 F.3d 1176, 1180 (9th Cir.
2003).
For further discussion of how to establish a local governmental
unit’s liability under § 1983, see supra I.A.1.c.(2).
The doctrine of Ex Parte
Young, 209 U.S. 123 (1908) – that
the Eleventh Amendment does not bar suits for prospective declaratory or
injunctive relief against state officials in their official capacity – is a
well-recognized exception to the general prohibition of the Eleventh Amendment. See
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 269 (1997); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 102–06 (1984); Doe v. Regents
of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018) (“Under the Ex parte Young exception to that
Eleventh Amendment bar, a party may seek prospective injunctive relief against
an individual state officer in her official capacity.”); Mitchell v. Washington, 818 F.3d 436, 442 (9th Cir. 2016) (“The
Eleventh Amendment bars claims for damages against a state official acting in
his or her official capacity.”); Flint v.
Dennison, 488 F.3d 816, 825 (9th Cir. 2007); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.
1997); Armstrong v. Wilson, 124 F.3d
1019, 1025 (9th Cir. 1997). “However, the Young
exception does not apply when a suit seeks relief under state law, even if the
plaintiff names an individual state official rather than a state
instrumentality as the defendant.” Regents
of the Univ. of Cal., 891 F.3d at 1153 (citing Pennhurst, 465 U.S. at 117).
“[W]here Congress has prescribed a detailed remedial scheme for
the enforcement against a State of a statutorily created right, a court should
hesitate before casting aside those limitations and permitting an action
against a state officer based upon Ex Parte
Young.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 74 (1996). The Ninth
Circuit has concluded that a statute containing citizen-suit provisions could
not have been intended to abrogate the Ex
Parte Young exception. See Nat.
Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423–24 (9th
Cir. 1996); see also Clark v. California,
123 F.3d 1267, 1271 (9th Cir. 1997) (holding
that action brought under the Americans with Disabilities Act and the
Rehabilitation Act could go forward under the Ex Parte Young doctrine).
The Supreme Court has noted that “[a]pplication of the Young exception must reflect a proper
understanding of its role in our federal system and respect for state courts
instead of a reflexive reliance on an obvious fiction.” Coeur d’Alene
Tribe, 521 U.S. at 270; see Sofamor
Danek Group, Inc. v. Brown, 124 F.3d 1179, 1183–85 (9th Cir. 1997). Since § 1983 contains no scheme for
enforcement, its operation is most likely not affected by Seminole’s modification of Ex
Parte Young.
For a discussion of how to determine the capacity in which an
official is sued, see supra I.A.1.e.(3).
The Eleventh Amendment does not bar suits seeking damages against
state officials in their personal capacity.
See Hafer v. Melo, 502
U.S. 21, 30–31 (1991); Mitchell v.
Washington, 818 F.3d 436, 442 (9th Cir. 2016) (stating 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); Ashker v. Cal. Dep’t of
Corr., 112 F.3d 392, 394–95 (9th Cir. 1997); Pena v. Gardner,
976 F.2d 469, 472 (9th Cir. 1992) (per curiam). “[W]hen a plaintiff sues a defendant for damages, there is a
presumption that he is seeking damages against the defendant in his personal
capacity.” Mitchell, 818 F.3d at
442 (citing Romano v. Bible, 169 F.3d 1182, 1186 (9th Cir. 1999)).
For a discussion of how to determine the capacity in which an
official is sued, see supra
I.A.1.e.(3).
Congress can abrogate the states’ Eleventh Amendment immunity
under § 5 of the Fourteenth Amendment.
Such abrogation requires an “unequivocal expression” of Congressional
intent. See Atascadero State
Hosp. v. Scanlon, 473 U.S. 234, 242–43 (1985), superseded by statute on
other grounds; see also Tennessee
v. Lane, 541 U.S. 509, 517 (2004);
Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 55–56 (1996);
Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991);
N. E. Med. Servs., Inc. v. Cal. Dep’t
of Health Care Servs., Health & Human Servs. Agency, Cal., 712 F.3d
461, 467 (9th Cir. 2013) (stating a “clear statement” is required to
demonstrate Congress’s intent to abrogate the state’s sovereign immunity); Miranda B. v. Kitzhaber, 328 F.3d 1181,
1184–85 (9th Cir. 2003) (per
curiam); Clark v. California,
123 F.3d 1267, 1269–70 (9th Cir. 1997); Hale v. Arizona, 993 F.2d 1387,
1391 (9th Cir. 1993) (en banc). Note, however, the power is limited. See Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 91 (2000) (holding that Congress
did not have the power, pursuant to § 5 of the Fourteenth Amendment, to
impose the Age Discrimination in Employment Act, 29 U.S.C. § 623, on the
states); Fla. Prepaid
Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647–48
(1999) (holding that Congress did not
have the power, pursuant to section 5 of the Fourteenth Amendment, to impose
patent infringement statute, 35 U.S.C. § 271(a), on the states);
compare Bd. of Trs. of Univ.
of Ala. v. Garrett, 531 U.S. 356, 360 (2001) (holding that Congress did not have the power, pursuant to § 5 of the
Fourteenth Amendment, to impose Title I of the Americans with Disabilities Act
on the states), with Clark,
123 F.3d at 1269–71 (concluding,
with discussion of Flores, that Congress had power to
abrogate Eleventh Amendment immunity when enacting Title II of the ADA and
Rehabilitation Act pursuant to section 5 of Fourteenth Amendment).
Section 1983 does not express the requisite unequivocal intent to
abrogate the states’ Eleventh Amendment immunity from suit. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989); Quern v. Jordan, 440 U.S. 332, 342 (1979); Hale, 993 F.2d at
1398; Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988).
Congress cannot abrogate the states’ Eleventh Amendment immunity
under its Article I powers. See Seminole
Tribe, 517 U.S. at 72–74; Quillin v.
Oregon, 127 F.3d 1136, 1138 (9th Cir. 1997) (per curiam); Nat. Res. Def. Council v. Cal. Dep’t of Transp., 96 F.3d 420, 423
(9th Cir. 1996). But see Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 819–20
(9th Cir.) (concluding that
acceptance of funds under statutory scheme passed pursuant to Article I
Spending Power constitutes a waiver of Eleventh Amendment immunity), amended by 271 F.3d 910 (9th Cir.
2001).
States may waive their Eleventh Amendment immunity by making an
unequivocal statement that they have consented to suit in federal court. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 305–06
(1990); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985), superseded by statute on other grounds;
Edelman v. Jordan, 415 U.S. 651, 673
(1974); Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1021–22
(9th Cir. 2010) (concluding the
sovereign immunity defense was waived when community college district failed to
pursue that defense while litigating the suit on the merits); Krainski v. Nevada ex rel. Bd. of Regents,
616 F.3d 963, 967 (9th Cir. 2010); Holley v. Cal. Dep’t of Corr., 599 F.3d
1108, 1111–12 (9th Cir. 2010); Aholelei v. Dep’t of Pub. Safety, 488
F.3d 1144, 1147 (9th Cir. 2007); Quillin v. Oregon, 127 F.3d 1136, 1138–39
(9th Cir. 1997) (per curiam);
Ashker v. Cal. Dep’t of Corr., 112
F.3d 392, 394 (9th Cir. 1997); Leer v. Murphy, 844 F.2d 628, 632 (9th
Cir. 1988). “A state generally waives
its immunity when it voluntarily invokes federal jurisdiction or ... makes a clear
declaration that it intends to submit itself to federal jurisdiction.” Aholelei, 488 F.3d at 1147 (internal
quotation marks, alterations, and citation omitted). “Express waiver is not required; a state waives
its Eleventh Amendment immunity by conduct that is incompatible with an intent
to preserve that immunity.” Id. (internal quotation marks, alterations,
and citation omitted).
Acceptance of funds under a statute passed pursuant to the
Spending Power constitutes a waiver of Eleventh Amendment immunity. See
Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 793 (9th Cir. 2004)
(per curiam); Miranda B. v. Kitzhaber, 328 F.3d 1181,
1186 (9th Cir. 2003) (per
curiam); Douglas v. Cal. Dep’t of
Youth Auth., 271 F.3d 812, 819–20 (9th Cir.), amended by 271 F.3d 910 (9th Cir. 2001); Clark v. California, 123 F.3d 1267, 1271
(9th Cir. 1997).
A state’s act of removing a lawsuit from state court to federal
court waives its Eleventh Amendment immunity.
See Lapides v. Bd. of Regents,
535 U.S. 613, 616 (2002); Embury v. King,
361 F.3d 562, 565–66 (9th Cir. 2004); Bank
of Lake Tahoe v. Bank of Am., 318 F.3d 914, 918–19 (9th Cir. 2003). See
also Kendrick v. Conduent State & Local Sols., Inc., No. 18-16988, 2018
WL 6566978, at *3 (9th Cir. Dec. 13, 2018) (explaining the Supreme Court’s
holding in Lapides was limited and that a state waives Eleventh Amendment
immunity by removal only for state-law claims ‘in respect to which the State has explicitly waived immunity from
state-court proceedings.’” (quoting Lapides,
535 U.S. at 617)).
Waiver in a predecessor lawsuit does not carry over into
subsequent actions. See City of S. Pasadena v. Mineta, 284 F.3d 1154, 1157 (9th Cir.
2002).
The Eleventh Amendment bars suits in federal court against states
on the basis of violations of state law. See Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124–25 (1984); Cholla Ready Mix, Inc. v. Civish, 382
F.3d 969, 973–74 (9th Cir. 2004) (“[T]he Eleventh Amendment … precludes the
adjudication of pendent state law claims against nonconsenting state defendants
in federal courts.”); Ashker v. Cal.
Dep’t of Corr., 112 F.3d 392, 394–95 (9th Cir. 1997).
The party asserting Eleventh Amendment immunity bears the burden
of proof. See Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th
Cir.), cert. denied, 138 S. Ct. 459
(2017) (“‘[A]n entity invoking Eleventh Amendment immunity bears the burden of
asserting and proving those matters necessary to establish its defense.’”)
(quoting Del Campo v. Kennedy, 517
F.3d 1070, 1075 (9th Cir. 2008)); Hill v.
Blind Indus. & Servs. of Md., 201 F.3d 1186 (9th Cir. 2000) (order); Hyland v. Wonder, 117 F.3d 405, 413 (9th Cir.), amended by 127 F.3d 1135 (9th Cir.
1997); ITSI TV Prods., Inc. v. Agric.
Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993).
“It is settled that immediate appeals may be taken from orders
denying claims of … sovereign immunity granted to the states under the Eleventh
Amendment[.]” Alaska v. United States, 64 F.3d 1352,
1354 (9th Cir. 1995); see also Doe v.
Regents of the Univ. of Cal., 891 F.3d 1147, 1152 (9th Cir. 2018) (exercising
jurisdiction over an interlocutory appeal from the denial of Eleventh Amendment
immunity under the collateral order doctrine); Del Campo v. Kennedy, 517
F.3d 1070, 1074 (9th Cir. 2008); Phiffer
v. Columbia River Corr. Inst., 384 F.3d 791, 792 (9th Cir. 2004) (per curiam); Clark v. California, 123 F.3d 1267, 1269 (9th Cir. 1997) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506
U.S. 139, 147 (1993)).
“A plaintiff who establishes liability for deprivations of
constitutional rights actionable under 42 U.S.C. § 1983 is entitled to
recover compensatory damages for all injuries suffered as a consequence of
those deprivations.” Borunda v.
Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988); see also Smith v. Wade, 461 U.S. 30, 52 (1983) (“Compensatory damages … are
mandatory.”). The Supreme Court has held
that “no compensatory damages [may] be awarded for
violation of [a constitutional] right absent proof of actual injury.” Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299, 308 (1986).
Compensatory damages include actual losses, mental anguish and
humiliation, impairment of reputation, and out-of-pocket losses. See Borunda, 885 F.2d at 1389; Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987); Chalmers
v. City of Los Angeles, 762 F.2d 753, 760–61 (9th Cir. 1985). “[D]amages in § 1983 actions are not to
be assessed on the basis of the abstract ‘value’ or ‘importance’ of the
infringed constitutional right.” Sloman v. Tadlock, 21 F.3d 1462, 1472
(9th Cir. 1994).
Municipalities can be
held liable for compensatory damages.
See Owen v. City of
Independence, 445 U.S. 622, 657 (1980); Mitchell v.
Dupnik, 75 F.3d 517, 527 (9th Cir. 1996).
Although mental and emotional distress damages are available as
compensatory damages under § 1983, no compensatory damages are to be
awarded for the mere deprivation of a constitutional right. See Carey v. Piphus, 435
U.S. 247, 264 (1978). For example, where
a plaintiff is alleging a procedural due process violation, the plaintiff will
not be entitled to compensatory damages, “[i]f, after post-deprivation
procedure, it is determined that the deprivation was justified,” because the
plaintiff has suffered no actual injuries. Raditch v. United States, 929 F.2d 478,
482 n.5 (9th Cir. 1991); see also Merritt
v. Mackey, 932 F.2d 1317, 1322–23 (9th Cir. 1991); Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 781 (9th Cir.
1982). Moreover, under the Prison
Litigation Reform Act, “[n]o federal civil action may be brought by a prisoner …
for mental or emotional injury suffered while in custody without a prior
showing of physical injury.” 42 U.S.C. § 1997e(e). For further discussion of this provision, see
infra IV.F.
Punitive damages are available under § 1983. See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 17 (1991); Kentucky
v. Graham, 473 U.S. 159, 167 n.13 (1985); Dang v. Cross, 422
F.3d 800, 807 (9th Cir. 2005); Morgan
v. Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 577 n.21 (1984).
Punitive damages are available even when the plaintiff is unable to show
compensable injury. See Smith v. Wade, 461 U.S. 30, 55 n.21
(1983); Davis v. Mason Cty., 927 F.2d 1473, 1485
(9th Cir. 1991), superseded by
statute on other grounds as stated in Davis v. City of San Francisco, 976 F.2d 1536 (9th Cir. 1992),
vacated in part on other grounds by 984 F.2d 345 (9th Cir. 1993)
(order).
Municipalities are not liable for punitive damages. See Graham, 473 U.S. at 167 n.13; Smith,
461 U.S. at 36 n.5; City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981); Mitchell v. Dupnik, 75 F.3d 517, 527
(9th Cir. 1996). State officials sued in their official capacity are also immune from
punitive damages. See Mitchell, 75 F.3d at 527.
Punitive damages are awarded in the jury’s discretion. See
Smith, 461 U.S. at 54; Woods v.
Graphic Commc’ns, 925 F.2d 1195, 1206 (9th Cir. 1991). The jury must find either that the defendant
acted with an evil motive or demonstrated reckless indifference to the
constitutional rights of the plaintiff. See Smith, 461 U.S. at 56; Dang, 422 F.3d at 807–09 (holding “that oppressive conduct is a
proper predicate for punitive damages under § 1983”); Mitchell, 75 F.3d at 527 n.7;
Morgan, 997 F.2d at 1255; Bouman v.
Block, 940 F.2d 1211, 1233 (9th Cir. 1991).
The jury must also “make ‘a discretionary moral judgment’ that the
‘conduct merit[s] a punitive award.’” Woods,
925 F.2d at 1206 (quoting Smith, 461 U.S. at 52).
“Damages are not presumed to flow from every constitutional
violation. Presumed damages are
appropriate when there is a great likelihood of injury coupled with great
difficulty in proving damages.” Trevino
v. Gates, 99 F.3d 911, 921 (9th Cir. 1996) (citing Carey v. Piphus, 435 U.S. 247, 263 (1978)). Presumed damages should not be awarded where
compensatory damages have been awarded. See
Trevino, 99 F.3d at 921–22.
Nominal damages must be awarded if the plaintiff proves that his
or her constitutional rights have been violated. See Carey v. Piphus, 435 U.S. 247, 266–67 (1978); Hazel v. Crofoot, 727 F.3d 983, 991–92 n.6 (9th Cir. 2013)
(“Nominal damages must be awarded in cases in which the plaintiff is not
entitled to compensatory damages, such as cases in which no actual injury is
incurred or can be proven.”); Cummings v.
Connell, 402 F.3d 936, 942–46 (9th Cir. 2005); Schneider v. Cty. of San Diego, 285 F.3d 784, 794–95 (9th Cir.
2002); Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1996); Wilks v. Reyes, 5 F.3d 412, 416
(9th Cir. 1993); Draper v. Coombs,
792 F.2d 915, 921–22 (9th Cir. 1986). See also Guy v. City of San Diego, 608 F.3d 582, 587 (9th Cir. 2010); Mahach-Watkins v. Depee, 593 F.3d 1054,
1059 (9th Cir. 2010) (explaining that in a civil rights suit for damages, the
award of nominal damages highlights the plaintiff’s failure to prove actual,
compensable injury).
Section 1983 is an exception to the Anti-Injunction Act, 28
U.S.C. § 2283, which establishes that federal courts may not enjoin
state-court proceedings unless expressly authorized to do so by Congress. See Mitchum v. Foster, 407 U.S. 225, 242–43 (1972); Goldie’s
Bookstore, Inc. v. Superior Court, 739 F.2d 466, 468 (9th Cir. 1984). This
does “not displace the normal principles of equity, comity and federalism that
should inform the judgment of federal courts when asked to oversee state law
enforcement authorities.” City of Los Angeles v. Lyons, 461 U.S.
95, 112 (1983); Mitchum, 407 U.S. at
243. In fact, injunctive relief should
be used “sparingly, and only … in clear and plain case[s].” Rizzo v. Goode, 423 U.S.
362, 378 (1976) (citation and internal quotation marks omitted).
Where the prisoner is challenging conditions of confinement and
is seeking injunctive relief, transfer to another prison renders the request
for injunctive relief moot absent some evidence of an expectation of being
transferred back. See Preiser v. Newkirk,
422 U.S. 395, 402–03 (1975); Johnson v.
Moore, 948 F.2d 517, 519 (9th Cir. 1991) (per curiam); see also
Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th Cir. 2007). Compare Pride v. Correa, 719 F.3d 1130, 1138 (9th Cir. 2013) (instructing,
on remand, the district court to consider whether claim for injunctive relief
is moot as to a prison official who had been transferred to another prison, and
no longer worked at the facility in question).
Prior to enactment of the Prison Litigation Reform Act, a court
could award permanent injunctive relief “only if the wrongs [were] ongoing or
likely to recur.” Fed. Trade Comm’n v. Evans Prods. Co., 775 F.2d 1084, 1087 (9th
Cir. 1985); LaDuke v. Nelson, 762
F.2d 1318, 1323–24 (9th Cir. 1985), amended by 796 F.2d 309 (9th Cir.
1986).
Formerly, the court could award preliminary injunctive relief
where the plaintiff showed (1) a likelihood of success on the merits and the
possibility of irreparable injury, or (2) the existence of serious questions
going to the merits and the balance of hardships tipping in the plaintiff’s
favor. See Teamsters Joint Council No. 42 v. Int’l Bhd. of Teamsters, AFL-CIO,
82 F.3d 303, 307 (9th Cir. 1996); Diamontiney
v. Borg, 918 F.2d 793, 795 (9th Cir. 1990); Oakland Tribune, Inc. v. Chronicle Publ’g Co., Inc., 762 F.2d 1374,
1376 (9th Cir. 1985).
Under the former standard, the loss of money – or an injury that
could be measured in damages – was not considered irreparable. See
Triad Sys. Corp. v. Se. Express Co.,
64 F.3d 1330, 1334–35 (9th Cir. 1995), superseded
by statute on other grounds as stated in Apple Inc. v. Psystar Corp., 658
F.3d 1150, 1158–59 (9th Cir. 2011); Oakland
Tribune, 762 F.2d at 1376–77.
The Prison Litigation Reform Act (“PLRA”) made three changes with
respect to awarding injunctive relief in civil actions concerning prison
conditions. “Although the PLRA
significantly affects the type of prospective injunctive relief that may be
awarded, it has not substantially changed the threshold findings and standards
required to justify an injunction.” Gomez v. Vernon, 255 F.3d 1118, 1129 (9th
Cir. 2001); see also Hallett v. Morgan,
296 F.3d 732, 743–44 (9th Cir. 2002).
First, the PLRA states that:
[t]he court shall not grant
or approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of
the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right. The
court shall give substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a)(1)(A) (1997). For
a similar standard with respect to temporary restraining orders and preliminary
injunctive relief see 18 U.S.C. § 3626(a)(2).
Second, the PLRA permits a defendant to seek the termination or
modification of prospective relief where such relief fails to meet the above
standard.
See 18 U.S.C. § 3626(b)(2).
The Ninth Circuit has concluded that this provision is
constitutional. See Gilmore v. California, 220 F.3d 987, 1008 (9th Cir. 2000). The burden is on the state, however, to show
excess of the constitutional minimum. See id. at 1008.
Third, the standards governing the appropriate scope of
injunctive relief also govern the appropriate scope of private settlements
unless the private settlement states that it is not subject to court
enforcement except for the “reinstatement of the civil proceeding that the
agreement settled.” 18 U.S.C. § 3626(c)(2).
These new requirements apply to all pending cases. See Hallett, 296 F.3d at 742–43; Oluwa
v. Gomez, 133 F.3d 1237, 1239–40 (9th Cir. 1998). For further discussion of these
provisions, see infra IV.G.
“A declaratory judgment, like other forms of equitable relief,
should be granted only as a matter of judicial discretion, exercised in the
public interest.” Eccles v. Peoples Bank of Lakewood Vill., Cal., 333 U.S. 426, 431
(1948); see also Hewitt v. Helms,
482 U.S. 755, 762–63 (1987); Public
Affairs Assocs., Inc. v. Rickover, 369 U.S. 111, 112 (1962) (per curiam); Leadsinger, Inc. v. BMG Music Publ’g,
512 F.3d 522, 533 (9th Cir. 2008); Gov’t
Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1222–23 (9th Cir. 1998) (en banc).
“Declaratory relief should be denied when it will neither serve a useful
purpose in clarifying and settling the legal relations in issue nor terminate
the proceedings and afford relief from the uncertainty and controversy faced by
the parties.” United States v. Washington, 759 F.2d
1353, 1357 (9th Cir. 1985) (en
banc) (per curiam); see also L.A.
Cty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992). It
is unnecessary to settle the entire controversy; it is enough if “a substantial
and important question currently dividing the parties” is resolved. Eu, 979 F.2d at 703–04.
Generally, exhaustion of state judicial or state administrative
remedies is not a prerequisite to bringing an action under § 1983.
Patsy v. Bd. of Regents, 457 U.S. 496, 500 (1982) (“[W]e have on numerous occasions
rejected the argument that a § 1983 action should be dismissed where the
plaintiff has not exhausted state administrative remedies.”); Monroe v. Pape, 365 U.S. 167, 183
(1961) (“The federal remedy is
supplementary to the state remedy, and the latter need not be first sought and
refused before the federal one is invoked.”), overruled on other grounds by Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). See
also Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (noting that,
generally, exhaustion is not a prerequisite to an action under § 1983, but explaining
that the Prison Litigation Reform Act created an exhaustion requirement for
suits brought by prisoners under 42 U.S.C. § 1983 with respect to prison
conditions).
Exhaustion of state tort claim procedures is not required. See
Rumbles v. Hill, 182 F.3d 1064, 1070 (9th Cir. 1999), overruled on other grounds by Booth
v. Churner, 532 U.S. 731 (2001).
When a state prisoner’s otherwise valid § 1983 complaint
seeks speedier release from confinement however, the prisoner must proceed by
way of a federal habeas corpus proceeding, which does require the exhaustion of state remedies. Preiser v. Rodriguez, 411
U.S. 475, 500 (1973). Likewise, if a
prisoner seeks to challenge the validity of a conviction or sentence, the
prisoner must first demonstrate that the conviction or sentence has been
successfully overturned. See Edwards
v. Balisok, 520 U.S. 641, 646–48 (1997);
Heck v. Humphrey, 512 U.S. 477, 483–87 (1994).
For further discussion of the
Preiser and Heck doctrines, see infra. I. J.
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action
shall be brought with respect to prison conditions under … [42 U.S.C. § 1983], or
any other Federal law, by a prisoner confined in any jail, prison, or other
corr
