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Separation of Church and State: History, Law and Democracy (Video)
On November 5, 2025, I spoke about the Religion Clauses on a webinar set up by an Illinois branch of the League of Women Voters (LWV). This was the opening segment of a LWV webinar on separation of church and state. It also included three other speakers (two of them clergymen) who addressed relevant questions about the role of religion in the American public square. The webinar went for a little over an hour.
After being introduced by the LWV moderator, I spoke for about twenty minutes with a minimum of legal jargon. I set out what the Religion Clauses were about at their inception and how they have been interpreted recently by the United States Supreme Court. To summarize: Establishment Clause constraints have been considerably narrowed by the Court (governments can now do much more to promote religion) while the Free Exercise Constraints have been considerably weakened by the Court in the name of religious liberty (governments can now do much less to limit religious exemptions from generally applicable civil and criminal laws).
After my presentation, the panelists took over and had many insightful comments to make.
Here is the YouTube link. 🎥 Watch the Webinar on YouTube
I think you will find the entire webinar informative. You most definitely do not have to be an attorney to appreciate it.
The Free Exercise Clause, Section 1983 and RLUIPA Damages Actions: Certiorari Granted in Landor v. Louisiana Dept. of Corrections and Public Safety
Section 1983 and Free Exercise Claims for Damages
Violations of the Free Exercise Clause of the First Amendment, like violations of many of the provisions of the Bill of Rights, are actionable for damages under section 1983 against individual state and local government officials in their individual capacities. When such Free Exercise violations involve clear discrimination against religion, the outcomes are ordinarily favorable to the plaintiffs. When they don’t involve such discrimination, then under the leading Free Exercise Clause decision, Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the outcomes are not always so clearcut. Recall that Smith, written by Justice Scalia, mandated the use of rational basis review: because there was a neutral and generally applicable criminal law prohibiting the use of certain controlled substances, the government in Smith did not really have to justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use. A rational basis was sufficient.
The Gradual Erosion of Smith
However, the Supreme Court has become increasing uncomfortable with Smith’s rational basis test in situations involving purportedly neutral and generally applicable rules regulating conduct. In particular, see Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), finding a “strong showing” that the plaintiffs, who challenged the New York governor’s executive order imposing serious restrictions on attendance at religious services in certain zones because of Covid-19, were likely to prevail. See also Tandon v. Newsom, 141 S. Ct. 1294 (2021), applying “most favored nation” treatment to religious services during the Covid-19 pandemic. Thus, Free Exercise Clause claims are increasingly receiving favorable treatment by the current Supreme Court despite Smith. Most recently, for example, in Mahmoud v. Taylor, 146 S. Ct. — (2025), the Supreme Court held that parents of public elementary school students have a Free Exercise Clause right to opt out of a school board’s introduction of “LGBTQ+ inclusive” storybooks into classroom instruction. Nevertheless, despite this increasingly favorable treatment by the Court of Free Exercise claims, success for plaintiffs is not guaranteed when the plaintiffs use section 1983 to seek damages for Free Exercise Clause violations.
The Potential RLUIPA Workaround
But there are two kinds of religion cases in which rational basis clearly does not apply: cases involving religious claims brought by owners of property challenging state and local government land use decisions, and prison inmates challenging state and local government conditions of confinement that allegedly infringe on their religious beliefs and behavior. The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.A. § 2000cc, explicitly applies strict scrutiny to certain land use and prison decisions affecting religion. (Note that the Religious Freedom Restoration Act (RFRA), 42 U.S.C.A. § 2000bb, which restored the pre-Smith strict scrutiny test for free exercise violations in general, and therefore was potentially much broader in scope than the subsequently enacted RLUIPA), was struck down by the Supreme Court as applied to states and local governments. City of Boerne v. Flores, 521 U.S. 507 (1997)).
So after all of this, the question becomes whether RLUIPA, with its strict scrutiny, provides for its own (independent of section 1983) action for damages against individual state and local government officials in their individual capacity? The Supreme Court will address this question in its 2025 Term in Landor v. Louisiana Department of Corrections and Public Safety, 82 F.4th 337, 339 (5th Cir. 2023), petition for rehearing and for rehearing en banc denied, 93 F.4th 259 (5th Cir. 2024), certiorari granted, 146 S. Ct. – (2025).
The Current RLUIPA Precedent
Over a decade ago, In ruling against the plaintiff inmate’s RLUIPA individual capacity damages claim against a correctional officer who ordered the forced shearing of his dreadlock, the Seventh Circuit, per Judge Posner, said the following:
Although his [pro se] complaint is none too clear, he appears to be seeking damages against the defendant in both the latter’s official capacity and his personal capacity, and the former claim is barred by the state’s sovereign immunity, Sossamon v. Texas, 131 S. Ct. 1651 (2011), … , and the latter claim cannot be based on the Act because the Act does not create a cause of action against state employees in their personal capacity. It does authorize injunctive relief … but he’s since been released from prison, so his injunctive relief claim is moot ….
Grayson v. Schuler, 666 F.3d 450, 451 (7th Cir. 2012) (citations omitted).
Thereafter, in Sharp v. Johnson, 669 F.3d 144 (3d Cir. 2012), the Third Circuit announced that it was joining the Fourth, Fifth, Seventh and Eleventh Circuits in ruling that RLUIPA does not create a damages remedy against state and local government officials in their individual capacities. RLUIPA’s “appropriate relief” language did not clearly indicate a contrary result. See also Holland v. Goord, 758 F.3d 215 (2d Cir. 2014), Wood v. Yordy, 753 F.3d 899 (9th Cir. 2014), Tripathy v. McKoy, 103 F.4th 106 (2nd Cir. 2024) and Fuqua v. Raak, 2024 WL 4645493 (9th Cir. 2024).
The Court Grants Certiorari in Landor
Now consider Landor v. Louisiana Department of Corrections and Public Safety, a Fifth Circuit decision in which the Court has granted certiorari. “The question presented [in the petition to the Fifth Circuit] is whether … [RLUIPA] provides for money damages against officials sued in their individual capacities. Because we’ve already answered that question in the negative, we AFFIRM.”The Fifth Circuit rejected the former state prisoner’s argument that the Supreme Court’s RFRA decision in Tanzin v. Tanvir, noted below, required another result here. It reasoned that RFRA is a different federal statute that was enacted under section 5 of the Fourteenth Amendment, unlike RLUIPA that was enacted under the Spending and Commerce Clauses. Thereafter, the Fifth Circuit denied a petition for rehearing and for rehearing en banc, with eleven voting against rehearing and six voting in favor.
In the Tanzin RFRA case, subsequently affirmed by the Supreme Court, the Second Circuit had ruled that RFRA permits the recovery of money damages against federal law enforcement officers sued in their individual capacities. It distinguished Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011), where the Supreme Court held that RLUIPA does not permit the recovery of money damages against a state or state officers sued in their official capacities. Tanvir v. Tanzin, 889 F.3d 72 (2d Cir. 2018), opinion amended and superseded, 894 F.3d 449 (2d Cir. 2018), aff’d, 141 S. Ct. 486, 208 L. Ed. 2d 295 (2020) (8-0; Justice Barrett did not participate). The Court reasoned that RFRA’s “appropriate relief” language included claims for money damages against federal government officials in their individual capacities.
The reasoning and ruling in Tanzin are what the plaintiff in Landor is relying on.
Comments
It is highly likely that the Supreme Court will reverse the Fifth Circuit in Landor and rule that RLUIPA violations by state and local government officials can give rise to damages against them in their individual capacities. Religion-based claims do well generally in the Court, and the statutory interpretation argument in Landor is a strong one.
Quere: if this turns out in fact to be the case, could RLUIPA violations by state and local government officials also give rise to section 1983 “laws” actions seeking damages against them in their individual capacities? After all, a decision favorable to the plaintiff in Landor would mean that RLUIPA creates enforceable rights for “laws” purposes. And is there any reason to think that Congress intended to preclude such “laws” actions based on RLUIPA violations?
The Supreme Court’s 2024 Term Section 1983 Decisions
The forthcoming 2025-2026 Edition of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West/Westlaw), includes not only recent and important circuit court and state court decisions, but all § 1983-related decisions of the Supreme Court that were handed down up to, and including, its 2024 Term. I have blogged on most of these this past year, so please search on Nahmodlaw.com for whichever of these decisions you want to know more about. (References in the parentheticals are to Treatise sections)
Supreme Court Decisions in the 2024 Term
* Royal Canin U.S.A. Inc. v. Wullschleger: removal and amended § 1983 complaints (see § 1:38)
* Perttu v. Richards: the Prison Litigation Reform Act, exhaustion of administrative remedies and jury trial (see § 1:52)
* Williams v. Reed: exhaustion of administrative remedies and state court § 1983 claims (see §§ 1:59 and 9:61)
* Medina v. Planned Parenthood South Atlantic: the spending power, the Medicaid Act and “laws” actions (see § 2:38)
* Barnes v. Felix: Fourth Amendment excessive force and the “totality of the circumstances” approach (see § 3:21)
* Guttierez v. Saenz: standing of a death row inmate to use § 1983 to seek access to DNA testing (see § 9:30)
Lackey v. Stinnie: preliminary injunctions, prevailing parties and attorney’s fees (see § 10:7)
Certiorari Granted for Decision in the 2025 Term
*Landor v. Louisiana Department of Corrections and Public Safety: the Religious Land Use and Institutionalized Persons Act and damages actions against state and local government officials sued in their individual capacity (see § 3:15)
My new email address is snahmod@illinoistech.edu.
Exhaustion Under the Prison Litigation Reform Act and the Right to a Jury: Perttu v. Richards
Section 803 of the Prison Litigation Reform Act, 42 U.S.C.A. § 1997e, imposes an exhaustion of prison administrative remedies requirement on prisoners who wish to sue under § 1983. (See § 9:65 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw)). At the same time, there is a Seventh Amendment right to a jury trial in certain § 1983 cases. (See §§ 1:52-1:55 of my Treatise on the right to a jury trial).
What is the interplay, if any, between the PLRA’s exhaustion requirement and the Seventh Amendment right to a jury trial? In some situations, the exhaustion issue is “intertwined” with the merits of the prisoner’s lawsuit because both depend on whether the plaintiff’s allegations are in fact true.
In Perttu v. Richards, 146 S. Ct. – (2025), aff’g, Richards v. Perttu, 96 F.4th 911, 921 (6th Cir. 2024), the Supreme Court resolved a split in the circuits on this question by holding that in such cases there is a right under the PLRA to a jury trial.
In Perttu, the plaintiff inmate challenged the district court’s decision, after an evidentiary hearing, that found he had failed to exhaust administrative remedies under the PLRA in connection with his First Amendment retaliation claim. He maintained that the defendant prison official had affirmatively prevented him from filing grievances alleging the defendant’s sexual abuse by ripping them up or otherwise destroying them.
In this case of first impression in its circuit, the Sixth Circuit reversed and held that the Seventh Amendment required that a jury decide disputed questions of fact relating to PLRA exhaustion “when the exhaustion issue is intertwined with the merits of the underlying dispute.” In this regard, the Sixth Circuit observed that it disagreed with the Seventh Circuit’s contrary decision as set out in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008): “[T]he rationale [of Pavey] that a jury may reexamine the judge’s factual findings [relating to the merits] rings hollow if the prisoner’s case is dismissed for failure to exhaust his or her administrative remedies. In such an instance, a jury would never be assembled to resolve the factual disputes. That is Pavey’s fatal flaw.”
Agreeing with the Sixth Circuit as to the result but not reaching the constitutional issue on the merits, the Supreme Court affirmed in an opinion by Chief Justice Roberts. It held “as a matter of statutory interpretation that parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” (emphasis added). Here, the factual disputes over exhaustion overlapped with the plaintiff’s First Amendment retaliation claim.
Justice Barrett dissented, joined by Justices Thomas, Alito and Kavanaugh. Adopting an historical approach and indicating that the Seventh Amendment would not be violated if district courts decided disputed questions of fact implicating exhaustion even when intertwined with the merits, Justice Barrett asserted: “The Court reads the PLRA to say what it does not. It does so for reasons that the parties did not brief; that have no basis in our doctrine; and that are contrary to well-established principles of statutory interpretation. In so doing … the Court creates a regime … [that] generates more litigation of its own.” 146 S. Ct. at –.
The Court in Perttu avoided what many of the the Justices considered to be a difficult Seventh Amendment issue by deciding the case on PLRA statutory interpretation grounds. In so doing, it suggested that if Congress was not happy with the possible adverse effects of its decision on the implementation of the PLRA’s exhaustion requirement, Congress could amend the PLRA.
The Medicaid Act, the Spending Power and Section 1983 “Laws” Actions: Medina v. Planned Parenthood South Atlantic
The Talevski Background
In Health & Hospital Corp. of Marian County v. Talevski, 599 U.S. 166 (2023), the Supreme Court held that the Federal Nursing Home Amendments Act of 1978’s transfer and medication rules created private rights enforceable under § 1983. The Court, in an opinion by Justice Jackson, rejected the broad argument that Spending Clause legislation should never give rise to such enforceable rights. “‘Laws’ means ‘laws’, and nothing in [defendants’] appeal to Reconstruction-era contract law shows otherwise.” However, Justice Gorsuch concurred observing that the defendants failed to “develop fully” any arguments revolving around whether federal statutory rights in spending power legislation were “secured consistent with the Constitution’s anti-commandeering principle.” Justice Barrett, joined by Chief Justice Roberts, also concurred, emphasizing that an “actual clash–between one private judicial remedy against another, more expansive remedy–is not required to find that a statute forecloses recourse to § 1983.”
Justice Thomas dissented at great length. He argued that there was a difference in kind between federal legislation enacted under Congress’s enumerated powers and those enacted under the so-called “spending power.” The latter were not “laws” within the meaning of §1983’s language. They were contractual in nature and could not “secure rights by law.” Furthermore, to the extent that such federal statutes might by enforced through §1983, they ran “headlong into the anticommandeering doctrine and long-recognized limitations on the federal spending power.”
Justice Alito, joined by Justice Thomas, also dissented. He argued that while the FNHRA created individual rights, Congress had not indicated its intent to allow §1983 to be used to enforce the relevant provisions of the Act. To the contrary: “Allowing §1983 suits will upend [the Act’s] careful balance” of federal and state enforcement that “channels disputes through that regime.”
As I concluded in an earlier post on Talevski, “§1983 claims based on violations of federal statutes enacted under the spending power dodged a bullet: these kinds of claims might have been eliminated entirely. Still, even though they are still viable, it is fair to say that going forward such claims will continue to be viewed from a posture of skepticism by a fair number of the justices because of concerns with the scope of Congressional power, anti-commandeering and federalism.” See https://nahmodlaw.com/2023/06/27/health-hospital-corp-v-talevski-an-important-section-1983-laws-decision-on-the-spending-power-with-10th-amendment-overtones/
The Medina v. Planned Parenthood South Atlantic Decision
This assessment has now been borne out by a 2025 decision involving the Medicaid Act, enacted under the Spending Clause, and § 1983 “laws” actions. The Supreme Court, in Medina v. Planned Parenthood South Atlantic, 146 S. Ct. — (2025), rev’g, 95 F.4th 152 (4th Cir. 2024), answered in the negative the following Question Presented: “Whether the Medicaid Act’s any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.” In Medina, the plaintiff who wanted to shift all of her gynecological health care to Planned Parenthood attempted to use § 1983 to challenge South Carolina’s exclusion of Planned Parenthood from its Medicaid program because Planned Parenthood provided abortion services Justice Gorsuch wrote the Court’s opinion, in which he discussed at length why “spending-power statutes like Medicaid are especially unlikely to [confer an enforceable right.]”
Along these lines, he pointed out that the Court’s precedents made clear that a federal statute claimed to support a § 1983 cause of action must clearly and unambiguously do so. However, Medicaid’s any-qualified-provider provision, contained in 42 U.S.C. § 1396a(a)(23)(A), did not clearly and unambiguously create such a right, unlike the Federal Nursing Home Reform Act provisions in Talevski. So-called legislative history was not determinative. And the policy argument that § 1983 actions were an effective way to enforce the any-qualified provider provision was not persuasive in light of the supervisory role of the federal government and available state administrative processes. Consequently, the plaintiff could not use § 1983 to challenge the exclusion of Planned Parenthood from the state’s Medicaid program.
Justice Thomas concurred, arguing broadly that the Court should reexamine its § 1983 jurisprudence “which bears little resemblance to the statute as originally understood.” In his view, the Court should revisit the question of what constitutes a “right” under § 1983, especially given the expansion of constitutional rights since 1871 when § 1983 was enacted. More specifically, he maintained, as he had in his dissent in Talevski, that federal statutes enacted under the spending power cannot “secure” rights under § 1983.
Justice Jackson (the author of Talevski), joined by Justices Sotomayor and Kagan, dissented. She asserted generally, and partly in response to Justice Thomas’s concurrence, that the purposes of § 1983, “one of the country’s great civil-rights laws,” were, and had to be, very ambitious in light of the Civil War and Reconstruction because terrorist violence was an existential threat to the United States. As to the precise issue before the Court, she argued that, contrary to the majority, Talevski governed, and that, under the Court’s “laws” precedents generally, the Medicaid Act did indeed create a right that the plaintiff could enforce through § 1983. “Medicaid’s free-choice-of-provider provision easily satisfies the unambiguous-conferral test.” There was ample rights-conferral language in the Act as well as legislative history to support this interpretation.
Comment:
The Court’s decision in Medina was not surprising for two reasons. One is the already noted posture of skepticism of at least three of the Justices toward using § 1983 to enforce purported rights under federal statutes enacted pursuant to the spending power. The second is that the case involved South Carolina’s decision to withdraw funding for Planned Parenthood, a provider of abortion services, even for its general gynecological services. It should not be surprising that, because Roe v. Wade has been overruled, a majority of the Justices view Planned Parenthood with jaundiced eyes and are not disposed to prevent states from refusing to fund it in its entirety, even though funding for abortion itself is not directly implicated.
Supreme Court Adopts “Totality of Circumstances” Approach in 4th Amendment Excessive Force Cases: Barnes v. Felix
[You may have noticed that it’s been a while since my last post. That’s because I’ve been working on the 2025-26 Update to my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (West)(Westlaw). But the Update is almost done (it will be published in early fall), so here is a post on a new and important section 1983 Fourth Amendment case recently handed down.]
The Issue in Barnes v. Felix
The Supreme Court in Barnes v. Felix, 146 S. Ct. – (2025), rev’g, 91 F.4th 393 (5th Cir. 2024), resolved a circuit split on the question of whether the “reasonableness” inquiry set out in Graham v. Connor for Fourth Amendment excessive force cases requires a “totality of the circumstances” approach, as a majority of the circuits had ruled, or whether the “moment of the threat” approach–under which the focus should be on the time when the officer’s safety was threatened and not on events that preceded the threats—was the proper one. Reversing the Fifth Circuit which had applied the “moment of the threat” approach, the Court ruled that the “totality of the circumstances” approach was the correct one.
In Barnes, the defendant county law enforcement officer fatally shot the plaintiff’s decedent following a lawful traffic stop. Plaintiff sued the officer and county under section 1983 alleging Fourth Amendment excessive force claims. The suit was filed in state court and then removed to federal court, where the district court granted the defendants’ motion for summary judgment on the ground that there was no constitutional injury. It rejected the plaintiff’s argument that the officer’s use of force was unreasonable because, even if the decedent attempted to flee the scene, he did not pose a threat to the officer. The district court also declared that the officer’s actions prior to the moment of threat had no bearing on the constitutionality of the officer’s ultimate use of force.
The decedent had been stopped by the officer because the decedent was driving a car with outstanding toll violations; he was then asked for his driver’s license and proof of insurance. During the course of the encounter, the officer requested that the decedent open the trunk of his car and get out of his car; the door on the driver’s side opened; the car’s left blinker turned off and then on; the officer drew his weapon, pointed it at decedent and began shouting “don’t fucking move” as the car began moving; the officer then stepped into the car with his weapon drawn and pointed it at decedent, pushing his head hard to the right. As the car moved, the officer shot inside the car with “no visibility” as to where he was shooting. He fired a second shot, and the car came to a complete stop, with the bleeding decedent held at gunpoint by the officer. Decedent was pronounced dead at the scene.
The Fifth Circuit affirmed the district court in an opinion by Judge Higginbotham on the ground that the moment of threat occurred in the two seconds before decedent was shot: the officer was still hanging onto the moving car and believed it would run him over. Judge Higginbotham also concurred in his own opinion, arguing that the moment of the threat doctrine was an “impermissible gloss” on Graham and that the Fifth Circuit should either revisit its precedents or the Supreme Court should resolve the circuit split on this issue.
The Supreme Court’s Unanimous Decision
The Supreme Court unanimously reversed in an opinion by Justice Kagan. It rejected the moment of the threat approach as “improperly narrowing the requisite Fourth Amendment analysis.” Instead, under its Fourth Amendment excessive force precedents, “a court must consider all the relevant circumstances, including facts and events leading up to the climactic moment.” This was the required “fact-dependent and context-sensitive approach.” It explained that this approach has no time limit, even though typically the precise situation at the moment of the use of force is what will matter most. However, in the case before it, the district court and the Fifth Circuit had apparently (and erroneously) looked “only to a two-second snippet of the encounter.” Accordingly, the Court vacated the judgment of the Fifth Circuit and remanded for further proceedings.
The Concurrence: Signaling
Justice Kavanaugh, joined by Justices Thomas, Alito and Barrett, concurred. Perhaps signaling to judges and attorneys how cases like Barnes should be decided, he noted that he wrote separately to address “the dangers of traffic stops for police officers, particularly when as here the driver pulls away in the midst of a stop.” Among other things, he pointed out that police officers in these circumstances cannot assume that any traffic stop will be safe. He also noted that a driver who speeds away can create serious dangers to the officer and people nearby. “[W]hen a driver abruptly pulls away during a traffic stop, an officer has no good or safe options.” Consequently, the reasonableness assessment must take account of the officer’s need for split-second decision making even under the “totality of the circumstances” approach.
Comments
The Supreme Court soundly rejected the “moment of the threat” approach in Barnes. The choice between the “moment of the threat” approach and the “totality of the circumstances” approach will frequently determine whether there was a Fourth Amendment excessive force violation in the first place. This is so because all-too-often drivers stopped for relatively minor traffic-related offenses are tragically shot by officers who sometimes overreact to a threat of danger that they themselves have brought about. At the very least, this should be a factor in determining whether the officer used deadly force under the “totality of the circumstances” approach.
To the argument that this puts officers at undue risk in split-second decision making situations, the response is that qualified immunity is still available to officers. As discussed in Chapter 8 of my Treatise, even if their conduct violated the Fourth Amendment, their use of deadly force must have also violated clearly settled Fourth Amendment law at the time of the challenged conduct in order for them to be liable in damages. Overcoming qualified immunity is often quite difficult.
Note that the Court in Barnes expressly acknowledged that it did not discuss just how an officer’s own “creation of a dangerous situation” is relevant to the reasonableness analysis. This, the Court said, is a question different from the timing question in Barnes. In this connection, the Court commented that it had similarly left this very question open in its proximate cause decision in County of Los Angeles v. Mendez, 581 U.S. 420 (2017), analyzed at §3:108 of my Treatise, which rejected the Ninth Circuit’s provocation rule in an excessive force case.
Supreme Court Gives Section 1983 Plaintiffs in Removed Pendent Claim Cases a Strategic Option: The 2025 Royal Canin Decision
Where a defendant is sued initially in a state court under §1983, the choice arises of defending in the state court or removing the proceeding to federal court. This choice is given §1983 defendants by 28 U.S.C. §1441(b), which provides in relevant part that “[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” The proper venue upon removal is to the district court “for the district and division embracing the place where such action is pending” and the proper procedure for removal is set out in 28 U.S.C. §1446.
There may be circumstances where the removed plaintiff can return to state court. In Carnegie-Mellon University v. Cohill, Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988). the Supreme Court held that “a federal district court has discretion under the doctrine of pendent jurisdiction to remand a properly removed case to state court when all federal-law claims in the action have been eliminated and only pendent state-law claims remain.”
But consider the Supreme Court’s important 2025 decision in Royal Canin USA Inc. v. Wullschleger, 604 U.S. 22, — (2025). In an opinion for a unanimous Court, Justice Kagan declared:
“What happens, if after removal, the plaintiff amends her complaint to delete all the federal-law claims, leaving nothing but state-law claims behind? May the federal court still adjudicate the now purely state-law suit? We hold that it may not. When an amendment excises the federal-law claims that enabled the removal, the federal court loses its supplemental jurisdiction over the related state-law claims.”
Describing the case as requiring a “jurisdictional primer,” Justice Kagan observed that the plaintiff had filed her lawsuit originally in Missouri state court, alleging violations of the Federal Food, Drug, and Cosmetic Act (FDCA) as well as state statutory law. The defendant then removed to federal court, but because the plaintiff did not want it there, she deleted every mention of the FDCA in her amended complaint and petitioned the district court to remand to state court on the state law claims. The district court denied the petition, the Eighth Circuit reversed and the Court affirmed. It ruled that the possibility of supplemental jurisdiction “vanished” alongside the now absent federal law issues. This was consistent with the text of §1367: “With the loss of federal-question jurisdiction, the court loses as well its supplemental jurisdiction over the state claims.”
The Court rejected the position of other circuits that the existence of subject matter jurisdiction is determined by examining the complaint at the time of removal. It further rejected the defendant’s contention that there was an exception “for when an amendment follows a lawsuit.” Instead, the Court emphasized that when the federal law issues disappear, the federal court no longer has power over the state law claims.
Royal Canin thus stands for the proposition that a court should look to the amended complaint to determine jurisdiction, whether in federal question cases or diversity cases. This provides potential §1983 plaintiffs who are deciding whether to file initially in federal or state court with an additional strategic option if they file in state court and the defendants remove to federal court. Much will depend on the relative strength of the § 1983 claims and the state law claims as well as on the remedies sought and against whom.
For considerably more discussion of removal in §1983 cases and related procedural matters, see Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 ch. 1 (2024-25 Edition)(West/Westlaw).
41st Annual Section 1983 Conference: April 10-11, 2025, at Chicago-Kent College of Law
Chicago-Kent is holding its 41st Annual Section 1983 Conference on Thursday and Friday, April 10-11, 2025, at the Law School. This Conference covers many aspects of section 1983 and constitutional law.
I will speak on The Basics of Section 1983 Claims, along with other experts on section 1983 who will speak on immunities, local government liability, remedies and various constitutional provisions.
Here is the link with registration information and the schedule. https://ckcle.ce21.com/item/41st-annual-section-1983-civil-rights-litigation-conference-679246
As always, this is a not-to-be-missed conference for those litigating section 1983 cases.
Supreme Court Sets Out New “Prevailing Party” Rule in Lackey v. Holcomb, Attorney’s Fees Case Involving Preliminary Injunctions and Mootness
The Supreme Court, on February 25, 2025, reversed the Fourth Circuit in Lackey v. Holcomb, 145 S. Ct. – (2025)(No. 23-621), an attorney’s fees case dealing with preliminary injunctions and mootness, and answered the following Questions Presented in the affirmative:
“(1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.”
The Lower Court Decisions in Lackey
In Lackey, the § 1983 plaintiffs challenged a Virginia statute that required the automatic suspension of driver’s licenses when drivers fail to pay certain court fines and fees. Following an extensive hearing with briefing and argument, the district court granted the plaintiffs a preliminary injunction. This was not appealed by the state defendants but, shortly before bench trial in August 2019, the Virginia legislature suspended the enforcement of the statute for a year, and the defendants got the district court to stay the case until the next legislative session over the plaintiffs’ “strenuous objections”. Thereafter, the legislature repealed the challenged statute, the district court dismissed the action as moot and, applying established Fourth Circuit precedent, it denied plaintiffs’ attorney’s fees.
Subsequently, however, with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its circuit’s earlier “bright-line approach” holding that “a plaintiff who wins a preliminary injunction but—for whatever reason—does not secure a final judgment may never qualify as a prevailing party.” Instead, it announced its test going forward: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”
The Supreme Court’s Decision
The Supreme Court in turn reversed in an opinion by Chief Justice Roberts. He began with the text and the Black’s Law Dictionary definition of prevailing party, and determined that that status depended on whether, at the end of the lawsuit, the party making a claim against another has successfully maintained it. He then reasoned that preliminary injunctions “do not conclusively resolve legal disputes.” Rather, they had a transient nature, especially where a court reached a different conclusion on full consideration of the merits, as in Sole v. Wyner, 551 U.S. 74 (2007), discussed below. Further, it was not sufficient for prevailing party status that the grant of a preliminary injunction has “something” to do with the merits: “The plaintiff must succeed on the merits.” This conclusion, according to Chief Justice Roberts, was consistent with its precedents that rejected the catalyst theory and insisted on a final victory on a material (“even if not predominant”) claim
Finally, the Court articulated its standard going forward: the change in legal relationship must be both judicially sanctioned and enduring in order for the plaintiff to be a prevailing party entitled to attorney’s fees. Specifically, “we establish that the enduring nature of that change [in the legal relationship between the parties] must itself by judicially sanctioned…. [B]oth the change in relationship and its permanence must result from a judicial order.” This standard, according to the Court, promoted judicial economy and did not, in most cases, create perverse incentives favoring defendants who could strategically moot litigation rather than proceed to the merits where they might lose and be required to pay attorney’s fees.
The Dissent
Justice Jackson, joined by Justice Sotomayor, dissented. Among other things, they pointed out that the plaintiffs had received meaningful relief through a preliminary injunction that was never reversed on the merits on appeal. As shown by the text and legislative history of §1988(b), Congress intended that in such cases, the plaintiffs should be entitled to prevailing party status and reasonable attorney’s fees. They argued that the majority “overreads our precedents to support its blanket rule that preliminary injunctions can never support fee awards.” Sole should be read narrowly as applying to preliminary injunctive relief that is superseded by a final judgment reversing such relief. Finally, they maintained that the Court’s approach would indeed create perverse incentives.
Comments
Lackey addressed the unresolved question in Sole. Here, the Supreme Court unanimously held that “a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, [does not] qualify as a ‘prevailing party’ within the compass of §1988(b).” The Court in Sole emphasized that prevailing party status requires a material alteration of the legal relationship of the parties pursuant to Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782 (1989), and that was not present in this case. It was not sufficient for prevailing party status that the plaintiff obtained a preliminary injunction after a hasty and abbreviated hearing that allowed her to display an antiwar artwork in a Florida state park: the state court had thereafter held after a full hearing that she was not entitled as a First Amendment matter to a permanent injunction against the enforcement of the state statute setting out the “Bathing Suit Rule” applicable to state parks. “Prevailing party status … does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 127 S. Ct. at 2188 (footnote omitted). However, the Court went on to observe that it was expressing no view of a case in which a plaintiff obtains a preliminary injunction and there is no final decision on the merits of a claim for permanent injunction. As indicated, this was the issue that Lackey decided in favor of defendants.
I argued in an earlier post on Lackey that the Court should affirm the Fourth Circuit en banc under the unique facts of the case : there was a full hearing with briefing and oral argument that preceded the district court’s grant of the preliminary injunction; this grant was not appealed by the defendants, although it could have been. Furthermore, as a direct result of the preliminary injunction, the Virginia legislature suspended the enforcement of the statute for a year, the case was stayed over plaintiffs’ objections and the statute ultimately repealed, all of which effectively prevented the plaintiffs from proceeding to final judgment and was motivated by the defense’s strategy to create mootness. For these reasons, the legal relationship of the parties was materially altered in favor of the plaintiffs who were thus prevailing parties.
Moreover, as the dissenters point out, the Court’s bright-line approach may create perverse incentives: plaintiffs who seek preliminary relief may either be encouraged to include an otherwise unnecessary damages claim in order to preclude mootness (thereby complicating a simpler lawsuit) or to seek permanent injunctive relief even after they’ve received what they wanted through a preliminary injunction.
Nevertheless, the Court decided to set out a bright-line rule requiring a judicial imprimatur for both the merits and the enduring nature of the change in the legal relationship between the parties. In so doing, “it overrules the decisions of every Court of Appeals to consider the issue” as the dissenters observe.
Sole, Texas State Teachers Ass’n and Lackey, and attorney’s fees in general, are all addressed in Chapter 10 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw).
Supreme Court in Williams v. Reed Reverses Alabama Supreme Court Narrowly on State Court Section 1983 Claims and Exhaustion of Administrative Remedies
Exhaustion of State Administrative Remedies: Background
It has been blackletter law since Patsy v. Fla. Bd. of Regents, 457 U.S. 496 (1982), and well before, that exhaustion of administrative remedies, like exhaustion of judicial remedies (see Monroe v. Pape, 365 U.S. 473 (1961)), is not required as a condition precedent to filing a § 1983 claim in federal and state court. Even though Patsy itself involved a § 1983 claim filed in federal court, the opinion seemed to indicate that this was a matter of § 1983 statutory interpretation. Thus, by virtue of the Supremacy Clause, Patsy was almost universally understood as similarly applying to § 1983 claims filed in state court, just like the no-exhaustion of judicial remedies rule. Indeed, until recently, every state supreme court, except for that of South Dakota (in Reiff v. Avon School Dist., 458 N.W.2d 358 (S.D. 1990)), has ruled that exhaustion of administrative remedies is not required for § 1983 claims filed in state court.
Then, Alabama joined South Dakota and ruled the same way in Johnson v. Washington, 2023 WL 4281620 (S. Ct. Ala. 2023), cert granted sub nom Williams v. Reed, 144 S. Ct. — (2024)(No. 23-191), which the Supreme Court just reversed, 5-4, on February 21, 2025. Williams v. Reed, 604 U.S. — (2025).
Williams v. Reed In State Court
In Williams, the plaintiffs filed unemployment compensation claims with the Alabama Department of Labor. Because these claims were not processed in a timely manner, the plaintiffs then filed suit under § 1983 seeking prospective relief and alleging that the defendants’ failure to act on their applications and provide the notices and hearings to which they were entitled violated their federal constitutional and Social Security Act rights. The Supreme Court of Alabama dismissed plaintiffs’ amended complaint on the ground that state courts lacked jurisdiction over plaintiffs’ § 1983 suit. The sole basis for the court’s dismissal was plaintiffs’ failure to exhaust the administrative appeals process governing unemployment compensation claims provided for by Alabama law. The Supreme Court of Alabama discussed Patsy, but nevertheless ruled that § 1983 plaintiffs could not “compel State courts to adjudicate federal claims that lie outside the State courts’ jurisdiction.” The Supreme Court of Alabama ruled this way even though under its approach the plaintiffs could never sue under § 1983 to expedite the administrative process, thereby creating what the plaintiffs (and later the Court) called a “catch-22.”
The Supreme Court’s Narrow Decision
In an opinion by Justice Kavanaugh, the Court reversed. It expressly avoided deciding whether Patsy and Felder v. Casey, 487 U.S. 131 (1988), “categorically bar both federal and state courts from applying state administrative-exhaustion requirements to § 1983 claims. We need not address that broader argument.” 604 U.S. at –, n. 2. Instead, it based its decision on preemption and declared:
“In the unusual circumstances presented here–where a state court’s application of a state exhaustion requirement in effect immunizes state officials from § 1983 claims challenging delays in the administrative process–state courts may not deny those § 1983 claims on failure-to-exhaust grounds.”
In the course of his opinion, Justice Kavanaugh rejected the state’s argument that Alabama’s exhaustion requirement was jurisdictional: such jurisdictional labels were not dispositive. It also rejected the state’s argument that the plaintiffs could seek a writ of mandamus from the state courts. This was simply “another way” of requiring a claimant to go through process provided by the state before suing under § 1983. He concluded by observing that the dissent (discussed next) primarily discussed issues that the majority did not have to address.
The Dissenters: Issues Raised But Not Decided by the Court
Justice Thomas, joined by Justices Alito, Gorsuch and Barrett as to Part II of his opinion, dissented. In Part I, he criticized Haywood v. Drown, 556 U.S. 729 (2009), in which he had dissented (as did Chief Justice Roberts and Justices Scalia and Alito, who separately contended that the majority had misinterpreted the Court’s precedents), and argued that Alabama had “plenary authority to decide which federal matters its state courts will have subject-matter jurisdiction to hear.” In Part II, he went on to to contend that the Court should affirm “under existing precedents.” In his view, there was neither discrimination against federal rights here, nor was there disfavored treatment. Finally, he criticized the majority for its purported narrow ruling which he asserted was incorrectly based on a “theory of futility.”
Comments
The Court reached the correct result in Williams, despite its narrow decision apparently prompted by the four-Justice dissent (was the dissent initially the majority opinion?). It would have been preferable, though, to have acknowledged that Patsy clearly was interpreting § 1983 when it rejected the Fifth Circuit’s “flexible” approach to exhaustion of administrative remedies in federal courts.
Furthermore, even though Alabama law does not discriminate against federal claims in its courts, its exhaustion of administrative remedies constitutes a severe burden on § 1983 claims and violates the Supremacy Clause for that reason alone. Compare Felder v. Casey, 487 U.S. 131 (1988), where the Court held that a Wisconsin four-month notice of claim statute that applied to suits against state and local government agencies and their officers in state courts could not be applied to § 1983 claims filed in state court because it conflicted “in its purpose and effects with the remedial objectives of § 1983 … [and would] predictably produce different outcomes … depending on whether the claim is asserted in state or federal court ….”
The Court could also have relied on Howlett v. Rose, 496 U.S. 356 (1990), where the Court ruled unanimously that states cannot apply their sovereign immunity rules to bar § 1983 claims against local governments in state courts. The Court reasoned that under the Supremacy Clause state courts have coordinate authority and responsibility to enforce the supreme law of the land.
And it could further have relied on Haywood v. Drown, 556 U.S. 729 (2009), where the Court struck down under the Supremacy Clause a New York statute, as applied to § 1983 claims, providing that New York courts did not have jurisdiction over any claims for damages against correctional officers sued in their personal capacities for acts committed within the scope of their employment. The Court emphasized that nondiscrimination standing alone was not the equivalent of neutrality.
The majority in Washington thus deliberately left these broader issues for another day, which means there is apparently still some life left in the argument that exhaustion of state administrative remedies may sometimes apply to state court § 1983 claims, at least in those states that have such a general requirement. As a practical matter then, Alabama’s and South Dakota’s exhaustion of state administrative remedies requirements as applied to most § 1983 claims filed in state court have not been struck down.
Nahmod Law 