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Introductory Comment

In this revision to Chapter 9, the committee provides separate "elements" instructions for 42 U.S.C. § 1983 claims against individuals (Instructions 9.2–9.3) and against local governing bodies (Instructions 9.4–9.7) because there are different legal standards to establish liability against these two types of defendants. This revision also provides updated instructions to establish the deprivation of particular constitutional rights (Instructions 9.9–9.25). The committee intends an elements instruction to be used only in conjunction with a "particular rights" instruction appropriate to the facts of the case at hand.

42 U.S.C. § 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, 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.

It is well settled that a "person" subject to § 1983 liability can be an individual sued in an individual capacity or in an official capacity, or a local governing body. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001) (en banc) ("Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights."); Botello v. Gammick, 413 F.3d 971, 978–79 (9th Cir.2005) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (actions of individual public employees can support liability against their governmental employer); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir.2004) (citing Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978) (action against an individual in an official capacity "generally represent[s] only another way of pleading an action against an entity of which an officer is an agent").

Despite the language of § 1983, "every person" does not have a universal scope; it does not encompass claims against a state or a state officer because the Eleventh Amendment bars such encroachments on a state’s sovereignty. Nonetheless, a state official sued in his or her official capacity can be a § 1983 person if only injunctive relief is sought:

As the Supreme Court explained in Will [v. Mich. Dep’t of State Police, 491 U.S. 58 (1989)], "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’"

Bank of Lake Tahoe v. Bank of America, 318 F.3d 914, 918 (9th Cir.2003). 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. In any event, a school district that is a state agency is entitled to the same Eleventh Amendment immunity as a state for actions in federal court. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 (9th Cir.2000); Quillin v. Oregon, 127 F.3d 1136, 1138 (9th Cir.1997).But the Eleventh Amendment does not bar suits against state officials in their individual capacities. See Hafer v. Melo, 502 U.S. 21 (1991).

Section 1983 liability of a local governing body arises only when "action pursuant to official municipal policy of some nature caused a constitutional tort" and not on the basis of respondeat superior. Monell, 436 U.S. at 691. "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, 475 U.S. at 479–80 (1986) (emphasis in original). Because there are several ways to establish "Monell liability," the committee also includes in this chapter separate elements instructions for several bases of such liability. See Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir.1999), cert. denied, 528 U.S. 928 (1999).

Finally, this chapter contains 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).