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This chapter is being reviewed in light of comments solicited by the Committee from the public.

Introductory Comment

This chapter focuses on 42 U.S.C. § 1983, which 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, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.  For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.     

This chapter is organized to provide separate “elements” instructions for 42 U.S.C. § 1983 claims against individuals (Instructions 9.3–9.4) and against local governing bodies (Instructions 9.5–9.8) because there are different legal standards establishing liability against these two types of defendants.   Instructions 9.9–9.29 provide instructions to establish the deprivation of particular constitutional rights.  An elements instruction should be used only in conjunction with a “particular rights” instruction appropriate to the facts of the case at hand.        
[See chart in attached wordperfect document]

The chart below [see attached wordperfect document] identifies the instructions for violations of particular federal rights to be used in conjunction with an elements instruction. “Where a particular amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’”  Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).  When necessary, these instructions include right-specific mental states because § 1983 itself “contains no independent state-of-mind requirement” apart from what is necessary to state a violation of the underlying right.  Daniels v. Williams, 474 U.S. 327, 328 (1986).

    Person Subject to § 1983 Liability
    It is well settled that a “person” subject to  liability can be an individual sued in an individual capacity (see Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc)) or in an official capacity (see Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir.2013)).  A “person” subject to liability can also be a local governing body (see Waggy v. Spokane Cnty., Wash., 594 F.3d 707, 713 (9th Cir.2010)); however, official capacity suits may seek only injunctive relief, and thus have not been included within the jury instructions.  Thornton v. Brown, 757 F.3d 834, 839 (9th Cir.2013).

    Local Governing Body Liability

    A local governing body is liable under § 1983 only when an “action pursuant to official municipal policy of some nature caused a constitutional tort” and not on the basis of respondeat superior.  Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658, 691 (1978).  “The ‘official policy’ requirement ‘was intended to distinguish acts of the municipality from acts of employees of the municipality,’ and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”  Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986) (emphasis in original).  Because there are several ways to establish “Monell liability,” see Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999), the Committee also includes in this chapter separate elements instructions for several bases of such liability (Instructions 9.5, 9.6, 9.7, and 9.8).

    Eleventh Amendment Immunity   

    Despite the language of § 1983, “every person” does not have a universal scope; it does not encompass claims against a state or a state agency because the Eleventh Amendment bars such encroachments on a state’s sovereignty.  Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.1997) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)) (“States or governmental entities that are considered ‘arms of the State’ for Eleventh Amendment purposes are not ‘persons’ under § 1983.”).  Even if a plaintiff seeks only injunctive relief, a state that has not waived its Eleventh Amendment immunity cannot be sued in its own name under § 1983. Will, 491 U.S. at 64, 71, n.10.

    The Ninth Circuit applies a five-factor test to determine whether a government entity is a state agency for Eleventh Amendment purposes: (1) whether a money judgment would be satisfied out of state funds; (2) whether the entity performs central governmental functions; (3) whether the entity may sue or be sued in its own name; (4) whether the entity has the authority to hold property in its own name; and (5) whether the entity has the corporate status of a state agency.  Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 778 (9th Cir.2005) (citations omitted).  The first prong of the test—whether a money judgment would be satisfied out of state funds—is the predominant factor.  Id.

    In contrast to a state or state agency, the Eleventh Amendment does not bar suits against state officials in their individual or official capacities.  See Hafer v. Melo, 502 U.S. 21, 26 (1991).  A state official sued in his or her official capacity is treated as a § 1983 person if only prospective injunctive relief is sought because “official-capacity actions for prospective relief are not treated as actions against the State.”  Will, 491 U.S. at 71 n.10.  A state official may be sued in his or her individual capacity for damages.  Kentucky v. Graham, 473 U.S. 159, 165 (1985);  but see Avalos v. Baca, 596 F.3d 583, 587 (9th Cir.2010) (holding that in order to be individually liable under § 1983, individual must personally participate in alleged rights deprivation).