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9.1 Section 1983 Claim—Introductory Instruction

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9.1 Section 1983 Claim—Introductory Instruction

            The plaintiff brings [his] [her] claim[s] under the federal statute, 42 U.S.C. § 1983, which provides that any person or persons who, under color of state law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws of the United States shall be liable to the injured party.

Comment

            The Committee notes that past decisions of the Supreme Court and the Ninth Circuit used the phrases “under color of law” and “under color of state law” interchangeably.  Compare, e.g., Livadas v. Bradshaw, 512 U.S. 107, 132 (1994), and Azer v. Connell, 306 F.3d 930, 935 (9th Cir. 2002) (using phrase “under color of law”), with Nelson v. Campbell, 541 U.S. 637, 643 (2004), and Meyers v. Redwood City, 400 F.3d 765, 770 (9th Cir. 2005) (using phrase “under color of state law”).

            Because recent Ninth Circuit case authority more frequently uses the phrase “under color of state law,” rather than “under color of law,” the Committee uses the phrase “under color of state law.” See Planned Parenthood Ariz.  Inc. v. Betlach, 727 F.3d 960, 966 (9th Cir. 2013) (“Section 1983 creates a federal remedy against anyone who, under color of state law, deprives ‘any citizen of the United States … of any rights, privileges, or immunities secured by the Constitution and laws.’”); OSU Student All. v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2013) (using phrase “color of state law”); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (same); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012) (same). 

In Wright v. Serv. Emps. Int’l Union Loc. 503, 48 F.4th 1112 (9th Cir. 2022), the Ninth Circuit explained that when a private actor’s conduct is challenged as “state action” under § 1983, a court looks to two requirements that the private actor must meet: (1) the state policy requirement; and (2) the state actor requirement.  Under the first requirement, the question is whether the claimed constitutional deprivation resulted from the exercise of some right or privilege created by the state or by a rule of conduct imposed by the state or by a person for whom the state is responsible.  Id. at 1121-22.  Under the second requirement, courts generally use one of four tests outlined by the Supreme Court to examine whether the party charged with the deprivation could be described in all fairness as a “state actor.”  Id. at 1122.  Those tests are the public function test, the joint action test, the state compulsion test, and the governmental nexus test.  IdSee also Rawson v. Recovery Innovations, Inc., 975 F.3d 742 (9th Cir. 2020).

For a discussion of the joint action test, see Pasadena Republican Club v. W. Justice Ctr., 985 F.3d 1161, 1167-71 (9th Cir. 2021).  For a discussion of the governmental nexus test, see Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1170-73 (9th Cir. 2022) (holding that school board members engaged in state action when they operated social media pages on which theydiscussed official business with members of public and posted about budgetary issues, school board meeting dates, school safety and security issues, and other topics).

 

Revised Dec. 2022