The DeShaney and Collins Obstacles for Injured Public Employees Seeking Section 1983 Damages
A public employee who has been injured and thereby deprived of his or her constitutional rights by the employer’s failure to prevent the injury has two major section 1983 affirmative duty hurdles to overcome.
One is the familiar hurdle presented by DeShaney v. County of Winnebago, 489 U.S. 189 (1989), which held that due process does not impose an affirmative duty on state and local governments to protect individuals from private harm. I have blogged about DeShaney and its application in the circuits numerous times. I also analyze it in sections 3:59-61 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2016).
But even if the DeShaney hurdle can be overcome by showing a special relationship or danger-creation by government, there is the addition hurdle presented by Collins v. City of Harker Heights, 503 U.S. 115 (1992), which held that section 1983 provides no due process remedy “for a municipal employee who is fatally injured in the course of his employment because the city customarily failed to train or warn its employees about known hazards in the workplace.” Put another way, there is no affirmative due process duty to provide a safe workplace for a public employee. See section 3:58 of my treatise for analysis of Collins.
These two significant hurdles demonstrate why overcoming them both in the same case is highly unusual.
Pauluk v. Savage, 836 F.3d 1117 (9th Cir. 2016)
In Pauluk v. Savage, a potentially significant case, the Ninth Circuit held that the injured public employee surmounted both hurdles, even though he ultimately lost on qualified immunity grounds. See chapter 8 of my treatise on qualified immunity.
Decedent’s legal representative sued a county health district and two employees, alleging that their deliberately indifferent exposure of decedent to a workplace environment known to be infested with toxic mold caused his death, thereby violating substantive due process. The Ninth Circuit noted that this case was at the intersection of the state-created danger doctrine on the one hand and Collins v. City of Harker Heights on the other.
Ultimately reversing the district court’s denial of summary judgment to the defendant employees, the court first found that a substantive due process claim was stated under the state-created danger doctrine even though the case involved a physical condition in the workplace. Under the state-created danger doctrine the plaintiff properly alleged and introduced evidence of a violation of substantive due process in that the defendants knowingly created, and continued to create, the danger to the decedent. But it still ruled that the substantive due process right asserted was not clearly established between 2003 and 2005, when the decedent worked despite his protests, with the result that the defendant employees were protected by qualified immunity.
In addition, and more to the present point, the Ninth Circuit went on to rule that the state-created danger doctrine was not foreclosed in this case by Collins. The court observed that Collins did not involve a claim under the state-created danger doctrine, as here, but rather the claim of a general due process right to a safe workplace. This distinction was significant and cut in favor of the decedent. However, there was no violation of clearly settled law because, unlike existing circuit precedent, this case involved harm by a physical condition where decedent worked. Thus, the defendant employees were entitled to qualified immunity on this ground as well.
Judge Murguia concurred in part and dissented in part, arguing that the plaintiff did not present a substantive due process claim of affirmative acts with deliberate indifference. 836 F.3d 1117 at 126. Judge Noonan dissented, contending that the defendant employees in fact violated clearly settled substantive due process law in the Ninth Circuit. 836 F.3d 1117 at 1132.
1. The Ninth Circuit’s qualified immunity decision applies only to the defendant employees sued in their individual capacities for damages. But there still remains a possible section 1983 remedy against the county health district that was also sued by the decedent’s legal representative but was not technically a party to the defendant employees’ interlocutory appeal.
2. Even though the Ninth Circuit resolved the case in favor of the defendant employees on qualified immunity grounds, Pauluk still established clearly settled due process law going forward.
3. The result on the due process merits in Pauluk is the consequence of good lawyering and a careful reading of Collins. Plaintiff’s attorneys persuaded the Ninth Circuit that once the danger-creation doctrine was available, Collins did not apply where a very specific affirmative act regarding the workplace allegedly violated due process.
4. DeShaney and Collins kinds of cases often present tragic circumstances. Still, plaintiffs in such cases typically lose. Pauluk stands out.
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I don’t ordinarily advertise on my blog but here comes a commercial.
IIT Chicago-Kent College of Law is hosting the 34th annual Section 1983 Conference in Chicago on April 20-21, 2017. This two-day conference covers all aspects of section 1983 and features the following well-known speakers: Erwin Chemerinsky, Karen Blum, Rosalie Levinson, Kimberly Bailey, John Murphey, Gerry Birnburg and me.
I hope to see you there.
Please check out the brochure, which is below. Note that the early rate expires on April 1, 2017.
On March 2, 2017, IIT Chicago-Kent College of Law presented a two hour program for both non-lawyers and lawyers on political protests and free speech. This program was prompted by the suddenly developing political protests directed at the President’s restrictive travel ban and his proposed actions against immigrants.
I spoke for the first half hour and provided a First Amendment overview (what I termed a “primer”) as well as concrete suggestions for political protestors.
In the second and third half-hours two highly regarded Chicago attorneys, Molly Armour and Ed Mullen, discussed their experiences with political protests and law enforcement. They also offered advice to protestors.
The final half hour, which was quite dynamic, addressed questions from a very engaged audience.
If you are interested in the dos and don’ts of political protest, then this is the video for you. I recommend it highly.
I invite you to follow me on Twitter: @NahmodLaw
A Section 1983 Primer (12B): Survival and Wrongful Death–What Happens When a Section 1983 Plaintiff Dies or Has Been Killed
The immediately preceding post addressed the section 1988 background of survival and wrongful death claims based on section 1983. It included a discussion of Robertson v. Wegmann, the leading Supreme Court decision dealing with survival of section 1983 claims.
This follow-up post primarily deals with wrongful death.
While both state survival statutes and state wrongful death statutes reverse contrary common law rules, their purposes are different. Survival statutes allow the cause of action to survive regardless of the death of the plaintiff (or defendant). Wrongful death statutes, by contrast, provide for causes of action to arise in and for the benefit of certain designated persons in order to compensate them for pecuniary losses resulting from a decedent’s death. Furthermore, for wrongful death actions the defendant’s conduct must necessarily be the cause of death; this is not required for survival.
The Leading Case of Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961)
In a leading decision on survival and wrongful death, the Fifth Circuit, in Brazier v. Cherry, drew no distinction for section 1983 and section 1988 purposes between the applicability of Georgia’s survival statute and its wrongful death statute. The case concerned allegations that police brutality had caused decedent’s beating and death. In concluding that section 1988 required the application of Georgia law in favor of the plaintiff, who was both the surviving widow and the administratrix of the decedent’s estate, the court treated survival and wrongful death concepts alike. Focusing on the “suitable remedies” language of section 1988, after dealing earlier with the “party injured” language of section 1983, the Fifth Circuit stated:
The term “suitable remedies” … comprehends those facilities available in local state law but unavailable in federal legislation, which will permit the full effectual enforcement of the policy sought to be achieved by the statutes. And in a very real sense the utilization of local death and survival statutes does not do more than create an effective remedy. … To make the policy of the Civil Rights Statutes fully effectual, regard has to be taken of both classes of victims.
Thus far, the Supreme Court has not addressed the issue of wrongful death and section 1983. As noted in the preceding post, it simply commented in Robertson, a survival case, that abatement of a section 1983 cause of action where the defendant’s conduct caused the plaintiff’s death was a different issue from that in case before it where death was not so caused. Still, as a matter of section 1983 policy, Brazier‘s approach to the use of wrongful death statutes seems sound and has been generally followed in the circuits. Consider: if a wrongful death statute could not be used for section 1983 actions, it would follow that where a defendant’s unconstitutional conduct immediately caused the death of the decedent, the typical survival statute would also not be applicable. The absurd result would be no vindication at all of the section 1983 claim. Thus, the Fifth Circuit appropriately observed in Brazier:
“[I]t defies history to conclude that Congress purposely meant to assure to the living freedom from such unconstitutional deprivations, but that, with like precision, it meant to withdraw the protection of civil rights statutes against the peril of death.”
Significantly, Brazier‘s reasoning can apply to the use of state survival law as well. Indeed, because the claim in such cases is for the decedent’s loss of his or her life and related damages,the “fit” between survival law and section 1983 may even be better than that between wrongful death law and section 1983. That may be why some circuit court decisions tend in fact to use state survival law in section 1983 cases and confront the “inconsistency” issue–addressed below–regarding damages limitations head on.
The general rule is that state wrongful death statutes can be used to vindicate a decedent’s constitutional deprivations caused by the conduct of section 1983 defendants that caused his or her death.
In addition–and this is important–to the extent that state wrongful death statutes (and survival statutes) limit the recovery of compensatory and punitive damages, those limitations have been held to be inconsistent with the policies underlying section 1983 and thus found inapplicable to section 1983 wrongful death claims. See, e.g., Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984), overruled in part on other grounds, Russ v. Watts, 414 F.3d 783 (7th Cir. 2005), and Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990). Both of these cases soundly hold that federal damages rules for compensatory and punitive damages govern for both survival and wrongful death claims brought under section 1983.
I discuss these and other cases in section 4:69 of Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West).
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A Section 1983 Primer (12A): Survival and Wrongful Death–What Happens When a Plaintiff Dies or Has Been Killed?
There are times when a potential section 1983 plaintiff dies for reasons unrelated to his or her claim . There are other times when a potential section 1983 plaintiff may have a claim against the person or entity responsible for his or her death. It is crucial to distinguish between the two situations.
In the first, the question is whether the section 1983 claim survives the decedent‘s death so that the decedent’s legal representative can proceed with the section 1983 lawsuit. This raises a survival issue. In the second situation, the question is whether the decedent’s legal representative can bring a section 1983 claim for the decedent’s death. This raises a wrongful death issue.
Interestingly, the answers to these questions are based, as a matter of federal law, on the survival and wrongful death law of the forum state.
The Relevance of 42 U.S.C. sec. 1988 and the Silence of Federal Law on Survival and Wrongful Death
Section 1988 provides in relevant part that the jurisdiction of federal district courts must be exercised in conformity with federal law “so far as such laws are suitable to carry the same into effect.” However, section 1988 goes on to say that when federal law is deficient in the provision of suitable remedies, state statutory or common law applies, unless it is inconsistent with the Constitution or federal law, in which case that state statutory or common law is not to be applied.
Because federal law is silent on the questions of survival and wrongful death, and therefore “deficient,” section 1988 requires that the survival and wrongful death law of the forum state must be applied unless it is “inconsistent” with the Constitution or federal law.
Robertson v. Wegmann, 436 U.S. 584 (1978): Survival of Section 1983 Claims
In its only section 1983 survival case, Robertson v. Wegmann, the Supreme Court dealt with the meaning of section 1988’s “inconsistent” language in the course of explaining how survival applies to section 1983 claims.
In Robertson, plaintiff Clay Shaw sued district attorney Jim Garrison and others under section 1983 for their alleged bad faith prosecution attempts against him in connection with the assassination of President Kennedy. Shaw obtained an injunction but, before a trial on damages could be held, he died. The executor of Shaw’s estate was then substituted as plaintiff, prompting defendants’ motion to dismiss on the ground that the section 1983 action had abated. Under Louisiana law, Shaw’s action only survived in favor of certain close relatives, none of whom was alive when Shaw died. The district court refused to apply state law because it was thought to be inconsistent with federal law. Instead, the court created “a federal common law of survival in civil rights actions in favor of the personal representative of the deceased.” The Fifth Circuit affirmed, emphasizing the inconsistency between Louisiana law and the broad remedial policies of section 1983, as well as the need for uniformity in civil rights actions.
However, the Supreme Court reversed. Applying section 1988, it found that Louisiana survival law generally was both reasonable and not inconsistent with the compensation and deterrent purposes of section 1983, despite the fact that the section 1983 action abated in this unusual case. It said:
A state statute cannot be considered “inconsistent” with federal law merely because the statute causes the plaintiff to lose the litigation. . . . § 1988 quite clearly instructs us to refer to state statutes; it does not say that state law is to be accepted or rejected based solely on which side is advantaged thereby.
The Court added that its decision was to be read narrowly because Louisiana law generally was not “inhospitable” to survival of § 1983 actions and the particular result here had “no independent adverse effect on the policies underlying § 1983.” Significantly, it also observed that the case before it was far different from one in which the unconstitutional conduct actually caused the death; that is, this was not a wrongful death action.
Robertson indicates that state survival law will almost always govern the survival of section 1983 actions except in extreme situations as where, for example, state law significantly discriminates against those types of actions, including section 1983 actions, that do not survive.
The general rule, then, is that section 1983 damages actions that are intended to redress the constitutional deprivations of the decedent while he or she was alive survive the death of the plaintiff if such survival would be the result under applicable state law.
I collect circuit court decisions dealing with survival in section 4:66 of CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016; West).
Next Post: Section 1983 Wrongful Death Claims
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I’ve been out of town for over a month but expect to be back next week and to resume blogging on section 1983, constitutional law and other good stuff.
One of my most popular posts is Know Your Constitution (5): Free Speech and Hate Speech, which was published on December 4, 2013, and can be found here: https://nahmodlaw.com/2013/12/04/know-your-constitution-5-free-speech-and-hate-speech/
More recently, I was invited to lecture on this topic to a general audience at Moriah Congregation in Deerfield, IL, on November 30, 2016. The attentive and engaged audience consisted of adults attending a continuing series of lectures on Henry Ford and anti-Semitism, with my lecture coming near the end of the series.
Following a gracious introduction by Bruce Ogron, an attorney and graduate of IIT Chicago-Kent College of Law, I spoke for 45 minutes and then answered some very good questions for another 15 minutes. I enjoyed the experience immensely.
I spoke first about common erroneous assumptions about the Supreme Court. I then moved into the mainstream theories or purposes of free speech, followed by three important considerations in free speech case law, and I concluded with a discussion of hate speech.
I am very pleased to offer this audio of my lecture.