Nahmod Law

Introduction

This is the fifth of my section 1983 primers. I previously blogged on section 1983’s history and purposes (post of 10-29-09); on Monroe v. Pape (post of 11-29-09); on constitutional states of mind (post of 2-6-10); and on causation in fact and the Mt. Healthy burden-shift rule (post of 4-25-10).

This post addresses the important, and threshold, question of statutes of limitations in section 1983 cases.

The Basics

Because section 1983 does not have its own statute of limitations, it is “deficient” within the meaning of 42 U.S.C. section 1988. Under the provisions of that statute, where federal law is deficient, federal courts are to apply the relevant law of the forum state, unless the relevant law of the forum state is inconsistent with federal law or policy or discriminates against federal claims.

As a consequence of section 1988, statutes of limitations issues arising in section 1983 cases constitute an unusual amalgam of federal and state law regarding the choice of the proper limitations period, accrual and tolling.

Choosing the proper limitations period

The leading case is Wilson v. Garcia, 471 U.S. 261 (1985), which held that the forum state’s personal injury statute of limitations governs. This means that there is no national uniformity.

If the forum state has more than one possibly applicable personal injury statute of limitations, then the state’s residual or general statute of limitations governs. Owens v. Okure, 488 U.S. 235 (1989).

Accrual

When a section 1983 claim accrues–when all of the elements of the claim are present–is a matter of federal law. The governing accrual rule for section 1983 is the medical malpractice discovery accrual rule, meaning that the statute of limitations for a section 1983 claim begins to run when the plaintiff knew or had reason to know of the injury. See United States v. Kubrick, 444 U.S. 111 (1979).

In the employment setting, it is the date of the challenged conduct, such as the alleged racial or sex discrimination, that begins the running of the applicable limitations period, not necessarily when the employee is no longer employed.   Delaware State College v. Ricks, 449 U.S. 250 (1980). Read the rest of this entry »

Introduction

On September 27, 2011, the Supreme Court granted certiorari in Delia v. City of Rialto, 621 F. 3d 1069 (9th Cir. 2011), sub nom Filarsky v. Delia, No. 10-1018, which held that a private attorney retained by the government was not entitled to qualified immunity, even though all of the government actors involved in the same challenged conduct were so protected because they did not violate clearly settled law.

The Question Presented: “Whether a lawyer retained to work with government employees in conducting an internal affairs investigation is precluded from asserting qualified immunity solely because of his status as a ‘private’ lawyer rather than a government employee.”

Background

Qualified immunity is a well established affirmative defense to section 1983 damages liability that is afforded to state and local government officials and employees: they are protected, even where they in fact violated a plaintiff’s constitutional rights, so long as they did not violate clearly settled law as of the time of the constitutional violations. See generally NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 ch. 8 (4th ed. 2011)(CIVLIBLIT on Westlaw).

The major purpose of qualified immunity is to provide such defendants with a margin for error so that they are not unduly chilled in the exercise of their independent judgment. Indeed, over the past few decades, as I’ve written and blogged about previously, the Supreme Court has to a considerable extent converted qualified immunity into the functional equivalent of absolute immunity, thereby providing even greater protection for state and local government officials and employees.

However, situations occasionally arise where private persons are sued under section 1983 under the theory that they acted jointly, or conspired, with state or local government officials or employees. They accordingly acted under color of law and can be held liable in damages. The question arises: are such private persons, suable under section 1983, entitled to the same qualified immunity? Read the rest of this entry »

As promised in the preceding post, here are recent section 1983 malicious prosecution cases from the Seventh Circuit and the Supreme Court of Utah.

Seventh Circuit

In Ray v. City of Chicago, 629 F.3d 660, 664 (7^th Cir. 2010), the Seventh Circuit dealt with the plaintiff’s § 1983 Fourth and Fourteenth Amendment malicious prosecution claims against a law enforcement officer arising out of the plaintiff’s being charged with possession of a controlled substance. Ruling against the plaintiff, the court, quoting Tully v. Barada, 599 F.3d 591, 594 (7^th Cir. 2010), declared that individuals do not have a “federal right not to be summoned into court and prosecuted without probable cause, under either the Fourth or the Fourteenth Amendment’s Procedural Due Process Clause.” The Seventh Circuit, relying on its decision in Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001),  added that the plaintiff also did not state § 1983 malicious prosecution causes of action because Illinois law recognized tort claims for malicious prosecution.

See also, with regard to the relevance of state tort claims for malicious prosecution, Parish v. City of Chicago, 594 F.3d 551, 552 (7^th Cir. 2009), where the Seventh Circuit, again relying on Newsome , observed that “Seventh Circuit precedent does not permit an action for malicious prosecution under § 1983 if a state remedy exists. … And Illinois law provides a state remedy for malicious prosecution.” The court in Ray then went on to declare that it would not revisit, much less overrule, Newsome despite footnote 2 in Wallace v. Kato, 549 U.S. 384, 390 n.2 (2007), that the Supreme Court “has never explored the contours of a Fourth Amendment malicious prosecution suit under § 1983 … and we do not do so here.”

Supreme Court of Utah

The Utah Supreme Court in Peak Alarm Company, Inc., v Salt Lake City Corporation, 2010 UT 22 (S. Ct. Utah 2010), addressed the plaintiff’s § 1983 Fourth Amendment malicious prosecution claim against several law enforcement officials arising out of his prosecution for violating a state statute criminalizing the making of a false alarm, a charge resulting in a directed verdict in his favor. Ruling against the plaintiff, the Supreme Court of Utah first observed that the plaintiff’s brief detention occurred before the initiation of any legal process, namely, the issuance of a citation. It was not enough that one of the defendants retained the plaintiff’s driver’s license after the citation was issued. The court next discussed the issue of continuing seizure as it had been dealt with in the federal courts, and went on to conclude that even if it recognized the doctrine, the facts of this case did not show such a seizure: plaintiff was detained for forty minutes but not arrested, he did not have to post bail or communicate with pretrial services, and he had no travel restrictions imposed. Thus, there was neither a continuing seizure nor a seizure pursuant to legal process that would support the plaintiff’s Fourth Amendment malicious prosecution claim.

Comment

As you can see from these two posts, only the Seventh Circuit appears skeptical about the existence of section 1983 malicious prosecution claims.

Introduction

I blogged on Sept. 11, 2009, about so-called section 1983 “malicious prosecution” claims. What follows, in two parts, are several recent decisions dealing with such claims, decisions that I ran across in preparing the 2011 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(CIVLIBLIT  on Westlaw).

A caveat: this area is very dynamic, so there may be even newer decisions out there.

Second Circuit

In Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), the Second Circuit upheld a jury’s verdict and judgment (including $1.426 million in compensatory damages) against the defendant former detective charged with § 1983 Fourth Amendment malicious prosecution of the plaintiff who was prosecuted for murder but acquitted. The defendant argued that he should have been granted judgment as a matter of law because probable cause existed, or should be presumed to have existed by virtue of a grand jury indictment of the plaintiff for murder. Rejecting the argument, the Second Circuit observed that the presumption of probable cause from a grand jury indictment could be rebutted by evidence that the indictment was procured by fraud, perjury or the suppression of evidence by the police officer. In this case there was ample evidence to support the jury’s findings that the defendant engaged in at least one of these kinds of misconduct: the defendant refrained from making inquiries into other possible suspects, ignored evidence that the plaintiff was not guilty, declined to inform the prosecutor of possibly exculpatory evidence, secured an inculpatory statement from a witness by promising not to disclose that witness’s known criminal activities and included in some of his own reports statements adverse to the plaintiff that were contradicted by persons with first-hand knowledge of the facts. Furthermore, it was clear that the defendant caused the initiation or continuation of the criminal proceedings against the plaintiff. Finally, there was sufficient evidence of malice in the sense that the defendant acted with “something other than a desire to see the ends of justice served.” 612 F.3d at 164.

Sixth Circuit

In Sykes v. Anderson, 625 F.3d 294, 308-09 (6^th Cir. 2010), the Sixth Circuit listed four requirements for a § 1983 Fourth Amendment malicious prosecution claim:  (1) initiation of a criminal prosecution against the plaintiff that was made, influenced or participated in by the defendant; (2) a lack of probable cause; (3) the plaintiff must have consequently suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding must have been resolved in favor of the plaintiff. The court in Sykes went on to agree specifically with the Fourth Circuit in Brooks v. City of Winston-Salem, 85 F.3d 178 (4^th Cir. 1996) that malice was not required: “The circuits that require malice [the Second, Third, Ninth, Tenth and Eleventh Circuits] have imported elements from the common law without reflecting on their consistency with the overriding constitutional nature of § 1983 claims.” 449 F.3d at 309 (emphasis in original). The Sixth Circuit then commented soundly (and wryly) that calling such claims “malicious prosecution” was unfortunate and confusing but that it was “stuck with that label.” 449 F.3d at 310.  Finally, the Sixth Circuit affirmed the § 1983 malicious Fourth Amendment malicious prosecution judgment against the defendants because all of these requirements were met, although it remanded for the purpose of having the district court explain why it had denied the defendant’s motion for remittitur.

Eleventh Circuit

The Eleventh Circuit applied the Fourth Amendment and common law torts elements of malicious prosecution in favor of the plaintiff who alleged that a police officer fabricated a bribery charge against him, lacked probable cause to do so and had a malicious intent. According to the Eleventh Circuit, the district court did not err in denying summary judgment to the defendant. Grider v. City of Auburn, 618 F.3d 1240 (11^th Cir. 2010).

Next: Decisions of the Seventh Circuit and the Supreme Court of Utah.

Background

My very first post, on August 19, 2009, dealt with the implications for supervisory liability of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This was followed by my post on October 16, 2009, setting out my view that Iqbal got it right on supervisory liability. Readers should consult these posts for relevant background.

Here are two important (and somewhat lengthy) 2010 supervisory liability cases from the Third and Tenth Circuits that I want to share with you.

(A caveat: these are 2010 decisions; since this area is so dynamic, there may be more recent decisions in these two circuits)

The Third Circuit: Santiago v. Warminster Township

In Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), the plaintiff sued three senior police officers, alleging that they planned or acquiesced in the use of excessive force against her by police officers during a raid on her home (her daughter and various grandchildren were present in her home) conducted in order to apprehend her grandson, thereby causing her to suffer a heart attack. Applying Iqbal, the Third Circuit found that the plaintiff had failed to plead adequate facts to state plausible claims for supervisory liability against the defendants.

According to the Third Circuit, there were three steps that a court must take after Iqbal: (1) note the elements required to state a cause of action; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) assume the veracity of well-pleaded allegations and then determine whether they plausibly give rise to an entitlement to relief.

In the case before it, the Third Circuit commented that it did not have to decide whether Iqbal changed its prior supervisory liability approach because, even under its prior approach–did the supervisor either direct others to violate a plaintiff’s constitutional rights or know of unconstitutional conduct and acquiesce in it?–the plaintiff did not state a plausible claim for relief.

As to two of the senior police officers accused of directing other police officers to violate plaintiff’s constitutional rights, it was not enough to say that they “specifically sought” to have happen what allegedly happened: this was “fundamentally conclusory” and was analogous to the allegations against the defendants in Iqbal that were rejected by the Supreme Court. Similarly, as to the third senior police officer, it was not enough to say that he “permitted the use of excessive force,” a conclusory allegation that he acquiesced in his subordinates’ constitutional violations. Read the rest of this entry »