Nahmod Law

Pleading, Iqbal and the Removal of Section 1983 Claims to Federal Court

Suppose a plaintiff decides to file his or her section 1983 complaint in state court, as permitted by the Supremacy Clause. Suppose further that the state court has a very pro-plaintiff pleading standard, which the plaintiff’s section 1983 complaint satisfies. The defendants choose to remove to federal court under 28 U.S.C. section 1441 (all defendants must agree to removal). After removal, does the plaintiff’s section 1983 complaint have to comply with the heightened federal court pleading standard of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)?

Recall that before Iqbal, federal courts were notice pleading jurisdictions. After Iqbal, however, the pleading standard is plausibility: the complaint must contain enough facts to state a claim that raises the right to relief above the speculative level. Otherwise, the complaint is dismissed.

According to the Fifth Circuit, the hypothetical plaintiff’s section 1983 complaint, now in federal court, must satisfy Iqbal‘s plausibility standard.

In Pena v. City of Rio Grande, 2018 WL 386661 (5th Cir. 2018), the Fifth Circuit addressed  the question of whether and when Iqbal’s plausibility standard applies to section 1983 actions filed initially in state court and then removed to federal court. The plaintiff sued a city and police officers in Texas state court, alleging excessive force. The defendants moved to dismiss and for judgment on the pleadings. After defendants removed to federal court, the plaintiff sought leave to amend to satisfy the federal pleading standard. The district court looked to the plaintiff’s second motion to amend and ruled that the federal pleading standard was not satisfied. It accordingly dismissed the claims against the various defendants.

On appeal, the Fifth Circuit rejected the plaintiff’s argument that F.R.C.P. Rule 8 does not apply to filings before removal. The court observed that where, as in this case, defendants challenge the pleadings in federal court, the federal pleading standard applies. Here, the plaintiff satisfied the allegation of injury prong against the police officers but did not plead facts that plausibly indicated that the officers’ conduct was objectively unreasonable. As to the city, the plaintiff did no more than allege the specific incident in which the plaintiff was involved. Further, the plaintiff did not plausibly allege the policymaker prong for local government liability. The same was true for plaintiff’s failure to train theory.

Comment

Section 1983 plaintiffs have the option for filing initially either in state court or federal court. This decision is based on various strategic considerations such as the choice of judge, the strength of pendent state claims, Eleventh Amendment immunity, the need for a speedy determination, parity, sympathy, hostility and competence. However, if they file in state court, the defendants, for their own strategic reasons, may decide to remove to federal court. If they do so, Pena indicates that they will have the benefit of Iqbal‘s heightened pleading requirement in federal court, even where the plaintiff’s section 1983 complaint satisfied the pleading requirement of the state court where the complaint was initially filed.

For much more on filing section 1983 claims in state court, and on Iqbal in the federal courts, see Chapter 1 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

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Written by snahmod

May 2, 2018 at 9:54 am

Section 1983 in Federal Court: An Introduction to the Rooker-Feldman Doctrine

Federal Courts Do Not Have Appellate Jurisdiction Over State Court Judgments

Despite the broad grants to federal courts of jurisdiction over section 1983 claims by 28 U.S.C. §§1331 and 1343, there are circumstances where federal jurisdiction over such claims is absent. Under the Rooker-Feldman doctrine–see District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 1983)–federal courts have no appellate jurisdiction over state court judgments with respect to modifying or vacating them.

Explaining the proper scope of this doctrine in Exxon Mobil v. Saudi Basic Industries Corp., 125 S. Ct. 1517 (2005), the Supreme Court observed that Rooker-Feldman “has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S.C. 1738.” After extensive analysis of the doctrine, the Court declared, 125 S. Ct. at 1521-22 (emphasis added):

The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.

The Court in Exxon Mobil went on to emphasize that when there is parallel state and federal litigation, as in the case before it, Rooker-Feldman was not triggered just by the entry of judgment in the state court proceeding. Rather, preclusion law would then be applicable. Accordingly, the Court reversed the Third Circuit which had ruled in erroneous reliance on Rooker-Feldman that the district court’s jurisdiction terminated once the state court entered judgment. The Court pointed out that the litigant in the federal action was not seeking to overturn the state court judgment.

The Seventh Circuit’s Approach

By way of a pre-Exxon Mobil general approach to Rooker-Feldman issues that is still good law, the Seventh Circuit suggested that federal courts must closely examine section 1983 complaints to determine whether it is the underlying procedure that is challenged as unconstitutional or the state court judgment in the case. “The fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment.” Gerry v. Geils, 82 F.3d 1362, 1365 (7th Cir. 1996).

A recent example of this approach is a decision in which the Seventh Circuit found Rooker-Feldman applicable to the section 1983 federal court claims of motorists who were stopped and later convicted of traffic violations and who sued various local and state officials, alleging that the defendants engaged in a wide-ranging conspiracy to deprive them of their constitutional rights. “[T]he plaintiffs lost in state court, their injuries flowed by the state-court judgments, the injuries occurred prior to the federal proceedings, and they want the federal courts to review and reject the state-court judgments.” Lennon v. City of Carmel,Indiana, 2017 WL 3140942, *2 (7th Cir. 2017).

Rooker-Feldman Found Inapplicable in Third Circuit Decision

In contrast, in a recent Third Circuit  section 1983 case, fathers of minor children brought actions seeking declaratory and injunctive relief against various defendants, including state court judges, alleging that custody standards violated the Fourteenth Amendment. Finding Rooker-Feldman inapplicable, although ultimately ruling for the defendants, the Third Circuit pointed out that the plaintiffs did not challenge state court judgments but the underlying policy that governed them, namely, allegedly stripping parents of custody in favor of other parents without a plenary hearing and using an improper best-interests-of-the-child standard. Allen v. DeBello, 2017 WL 2766365 (3rd Cir. 2017).

Comment

Needless to say, but I’ll say it anyway, section 1983 litigants in federal court should be sensitive to the possible application of Rooker-Feldman whenever there is a state court judgment that may be implicated by the federal court litigation. Those who want to know more about this complicated subject can check out the analysis and collected Rooker-Feldman cases in my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 1:26-1:30  (2017)(West/Westlaw).

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Written by snahmod

April 22, 2018 at 10:06 am

Are Contract Clause Violations Actionable Under Section 1983? A Circuit Split

The Contract Clause, U.S. Const. Art I, § 10, provides: “No State shall … pass any … Law Impairing the Obligation of Contracts.”

The Supreme Court has developed a three-part Contract Clause test: (1) does the state law operate as a substantial impairment of the contractual relationship; (2) if so, does the state have a significant, legitimate public purpose behind the regulation; and (3), if so, is the adjustment of the rights and responsibilities of the contracting parties based on reasonable conditions and is it appropriate to the public purposes justifying the state regulation? See, generally, Energy Reserves Group, Inc. v. Kansas Power and Light Co., 459 U.S. 400 (1983).

Are Contract Clause violations actionable under §1983? Can a tenured teacher use §1983 to bring an action for violation of the Contract Clause arising out of a statute or ordinance that cuts back on the rights of tenured teachers in layoffs? Or can retirees use §1983 to bring an action for violation of the Contract Clause challenging a statute or ordinance that temporarily replaces their retiree health care benefits with monthly stipends that can be used to purchase individual health care coverage? With financial pressures arising out of public pension debt growing more pressing nationally every day, the answer to these questions may be important.

There is currently a split in the circuits on this issue. The Ninth Circuit has ruled that Contract Clause violations are indeed actionable under §1983. It stated: “The right of a party not to have a State, or a political subdivision thereof, impair its obligations of contract is a right secured by the first article of the United States Constitution. A deprivation of that right may therefore give rise to a cause of action under section 1983.” Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (per curiam).

In contrast, the Fourth and Sixth Circuits have ruled that Contract Clause violations are not actionable under §1983. See Crosby v. City of Gastonia, 635 F. 3d 634 (4th Cir. 2011) and Kaminski v. Coulter, 2017 WL 3138308 (6th Cir. 2017). Among other things, these decisions noted that the only Supreme Court case on point had ruled this way long ago under §1983’s predecessor statute. Carter v. Greenhow, 114 U.S. 317 (1885).

Interestingly, the Seventh Circuit, in Elliott v. Board of School Trustees, 2017 WL 5988226 (7th Cir. 2017), assumed, without having to decide the issue in the case before it, that Contract Clause violations are actionable for damages under §1983. It then went on to find that a new Indiana law that cut back on the rights of tenured teachers in layoffs violated the Contract Clause rights of a teacher who had tenure before the law took effect.

The better view is that Contract Clause violations are actionable under §1983. As the Seventh Circuit pointed out in Elliott, Supreme Court and other opinions have read the 1885 Carter decision “as based more narrowly on the way the particular claim in that case was pled and the failure to satisfy the amount-in-controversy requirement applicable at the time.”

More important, there is no persuasive reason to exclude Contract Clause violations from the “deprivation of any rights … secured by the Constitution” language of §1983 itself.

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Written by snahmod

April 4, 2018 at 10:41 am

Come to Our 35th Annual Section 1983 Conference on April 26-27, 2018

I invite all civil rights litigators–whether new to section 1983 or experienced, whether representing plaintiffs or defendants–to attend our forthcoming 35th Annual Section 1983 Conference to be held at Chicago-Kent College of Law on Thursday and Friday, April 26-27, 2018.

I have organized and spoken at this Conference for 35 years, since its beginning in 1983(!). Not surprisingly, I consider it to be the premier program on section 1983 in the United States. Reasonably priced and intelligently structured, it covers virtually all aspects of section 1983 and related constitutional law issues, as well as the Supreme Court’s Term, immigration law and attorney’s fees.

Equally important, it features many of the leading experts in these areas: scholars Erwin Chemerinsky, Karen Blum, Rosalie Levinson and Kimberly Bailey, and practitioners John Murphey, Gerald Birnberg and Donald Kempster. I speak as well.

The brochure for the two-day Conference, together with CLE contact information, can be found here: https://cle.kentlaw.edu/database/PDF/2018Mar5-591-35th%20Annual%20Section%201983%20Civil%20Rights%20Litigation%20Conference%20brochure.pdf

You should feel free to email me with any questions at snahmod@kentlaw.edu. I will respond personally.

I hope to see you there and celebrate our 35th anniversary. Please say hello if you attend.

I also invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

March 7, 2018 at 9:41 am

“Swatting” and Section 1983: Some Preliminary Thoughts

Suppose, either as some sort of misguided prank or motivated by malice, an individual calls the police anonymously and informs them falsely that a man has killed his father and is holding other persons hostage at a particular address. Members of a police SWAT team arrive at the location in the early evening, surround the location and call on the man inside to come out. They also call out directions to the man–who apparently has no idea of what’s going on–to keep his hands up. However, for whatever reason the man appears to lower his hands and at that point one of the officers shoots and kills him.

This is obviously a real tragedy. But I would like to make some preliminary observations about the section 1983 liability issues potentially arising out of these circumstances.

1. The constitutionality of the reliance on the anonymous tip.

When the SWAT team arrived at the decedent’s location, surrounded it, called on him to come out and to keep his hands up, they seized him for Fourth Amendment purposes. Did they have probable cause to do so in the first place? Were there exigent circumstances? If not, they violated the Fourth Amendment.

2. The constitutionality of the particular use of force here.

Whether they had probable cause to seize him in the first place, did they use excessive force when one of the officers shot and killed him (a second seizure)? If so, they violated the Fourth Amendment.

3. The relation between the two events.

This potentially raises a proximate cause issue. If the officers violated the Fourth Amendment with the initial seizure, then they would be liable in damages for that (assuming no qualified immunity protection). And if this violation was the result of the police department’s failure to train, then the city could also be liable in damages under section 1983 regardless of qualified immunity.

If the officers separately violated the Fourth Amendment when they shot and killed him, then they would be liable in damages for that as well (again, assuming no qualified immunity protection). And if this violation was the result of the police department’s failure to train, then here too the city could also be liable in damages under section 1983.

But if they only violated the Fourth Amendment with the initial seizure and did not violate the Fourth Amendment when they shot and killed him, then the question arises whether the initial Fourth Amendment violation (and the police department’s failure to train) was the proximate cause of the shooting and killing of decedent for which the officers (and possibly the city) would be liable.

This is comparable to the proximate cause issue implicated in the Supreme Court’s decision last Term in  County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), which I blogged about here: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/

See generally, on proximate cause and section 1983, chapter 3 in NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017)(West/Westlaw).

4. The caller is not a state actor, although he knowingly provided a false tip to police officers who deal with emergency SWAT situations.

Merely notifying law enforcement officers who thereafter act independently of the caller (and not jointly with him) does not constitute state action. Accordingly, the caller did not violate the Fourth Amendment even if the SWAT team did. He would not be liable for damages under section 1983.

But perhaps tort liability could play a role here. If the caller intended that the police shoot the decedent, or if he knew with substantial certainty that decedent would be shot by them, the caller could be liable for battery. Alternatively, the caller could liable for his negligence in calling the police about an innocent person. After all, the reasonably foreseeable result of his call under these circumstances–falsely informing the police about killing the person’s father and holding hostages–is that the innocent person would be shot.

Of course, to make this remedy available as a practical matter, the caller must not be judgment proof.

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Written by snahmod

February 19, 2018 at 1:09 pm

Free Speech, Universities and Campus Disruption

[This post is based on my presentation at a symposium on Free Speech and Campus Disruption held January 25, 2018, at Northwestern Law School. The symposium was co-sponsored by the Academic Engagement Network.]

Two propositions

I begin with two fundamental propositions. First, political protests and a free press are the lifeblood of American democracy. Second, the primary purposes of universities are to develop critical intellectual faculties and to advance knowledge: there should be no intellectual “safe spaces” at a university. These two propositions are tied to the self-government and marketplace of ideas functions of the First Amendment.

First Amendment basics

Here are some First Amendment basics. For one thing, when government regulates, it must ordinarily be neutral with respect to the content and, especially, the viewpoint of speech. For another, the First Amendment is not an absolute. Indeed, there are no absolute individual constitutional rights. Further, there are often costs imposed on innocent people, including taxpayers, by the First Amendment. In addition, the First Amendment technically applies only to government regulation; it protects private individuals from the state.

Finally, First Amendment principles, as articulated by the Supreme Court, do not exclusively reflect the exercise of political power, as some assert. These principles have worked well as a general matter to protect diverse viewpoints, and have taken account of political (and economic) inequality to protect the “little guy” and traditional media of communication such as leafleting, demonstrations and the like.

Protests on campus: an all-too-familiar fact pattern

Suppose a controversial and deliberately provocative speaker is invited by students to speak at a facility used for university-wide events. Unless the facility is ordinarily open to non-university events, the invited speaker has no First Amendment right of access to the facility. However, the students who invited him or her have a First Amendment right receive information and hear the speaker’s ideas. (Supreme Court decisions such as Lamont v. Postmaster General, Virginia State Bd. of Pharmacy and Red Lion, all speak of such a right in readers, listeners and viewers in certain circumstances.)

What are the constraints on the speaker? He or she may not engage in speech directed at inciting unlawful conduct, where the speech is likely to lead to such conduct. Such speech is unprotected by the First Amendment, as are true threats and “fighting words,” although the last has been limited to face-to-face confrontations.

Significantly, the university has an affirmative First Amendment duty to use reasonable means to physically protect the speaker from a hostile audience (Justice Black’s famous dissent in Feiner). That is, the university must try to control the audience before shutting down the speaker for his or her protection.

However, those protesting the speaker have First Amendment rights of their own: what are their limits? The protesters can make their views known but they cannot physically disrupt the speaker. So they may stand silently during the talk, or with their backs to the speaker, and they may even hold placards in opposition. But preventing the speaker  from speaking through continued heckling, or by throwing things or through other violent conduct, is not protected by the First Amendment and can be punished either by discipline or criminal sanctions if they are students, or by criminal sanctions if they are outsiders who are not students. Such conduct is neither protected by the First Amendment nor consistent with the primary purposes of universities.

University officials’ responses to disruption

Of course, it does not follow that universities in this situation will discipline their students or that law enforcement will proceed with criminal prosecutions. University officials often want to avoid or at least minimize controversy. They also have various constituencies: students, alumni, faculty, public opinion and, if public universities, legislatures. And in fairness, it is often difficult in the heat of things to know who the disruptors are and whether they are students or outsiders.

Still, when thinking about university administrators confronting these events, I am reminded of something that Justice Frankfurter wrote long ago about legislators: “One must not expect uncommon courage in legislators.” With respect, it is fair to say the same thing about most university administrators who deal with these situations.

Still, university officials should keep this language from the Supreme Court’s 1957 Sweezy decision in mind:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

 

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Written by snahmod

January 31, 2018 at 9:07 am

Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result?

The Supreme Court granted certiorari on November 13, 2017, in Lozman v. City of Riviera Beach, No. 17-21, to deal with this very issue. In Lozman, the Eleventh Circuit ruled that probable cause is indeed a defense to a section 1983 First Amendment retaliatory arrest claim. Specifically, that court determined that a section 1983 retaliatory arrest plaintiff must allege and prove not only the retaliatory motive but the absence of probable cause as well. In other words, the absence of probable cause is an element of the section 1983 plaintiff’s retaliatory arrest claim.

This decision was based on the Supreme Court’s decision in Hartman v. Moore,  547 U.S. 250 (2006), which held that for section 1983 retaliatory prosecution claims against law enforcement officers (prosecutors themselves are absolutely immune from damages liability for their decision to prosecute), the plaintiff must allege and prove not only the impermissible motive but the absence of probable cause as well. The Court reasoned that there was a presumption of prosecutorial regularity that the section 1983 plaintiff must overcome as an element of his retaliatory prosecution case. Accordingly, as a matter of section 1983 statutory interpretation and policy (but not of constitutional law), the plaintiff should have this twin burden in retaliatory prosecution cases.

The Court in Hartman explained that a retaliatory prosecution case was very different from the usual First Amendment retaliation case that involves a relatively clear causal connection between the defendant’s impermissible motivation and the resulting injury to the plaintiff. It was appropriate in such cases to apply the Mount Healthy burden-shift rule under which the defendant has the burden of disproving but-for causation in order to prevail.

As discussed in a prior post, the Court had this same First Amendment retaliatory arrest issue before it previously in Reichle v. Howards, 566 U.S. 658 (2012). But it avoided addressing the merits by ruling for the individual defendants on qualified immunity grounds. See https://nahmodlaw.com/2012/06/13/new-supreme-court-decision-reichle-v-howards-and-first-amendment-retaliatory-arrests/

Comment: The Court Should Reverse the Eleventh Circuit

In my view, the Court’s decision in Hartman should not be applied to First Amendment retaliatory arrest cases. The express reason for the Hartman rule is that First Amendment retaliatory prosecution cases involve a presumption of prosecutorial regularity. But this reason is clearly inapplicable where there is no prosecution and the constitutional challenge is to the arrest itself.

Moreover, First Amendment retaliatory arrest claims involve the impermissible motivation (a subjective inquiry) of law enforcement officers irrespective of probable cause, which is an objective inquiry. Under this objective inquiry, the existence of probable cause precludes a Fourth Amendment violation based on an arrest even where that arrest is grounded on an offense different from the offense for which probable cause is deemed to be present. This provides a great deal of protection for police officers who allegedly make arrests in violation of the Fourth Amendment. However, if a police officer arrests a person for racial reasons, and the claimed injury is grounded on those racial reasons, it should not matter for the Equal Protection claim–even if it would for a Fourth Amendment claim–that the officer had probable cause to do so. This reasoning should apply as well to section 1983 First Amendment retaliatory arrest claims.

It was always questionable whether the Court in Hartman should have allowed policy considerations to change the usual section 1983 causation rules in First Amendment retaliatory prosecution cases. Regardless, that reasoning should most definitely not be extended to First Amendment retaliatory arrest cases. Such policy considerations as are discussed in Hartman are most appropriately addressed, if they are to be addressed at all, as part of the qualified immunity inquiry, not the elements of the section 1983 retaliatory arrest claim.

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Written by snahmod

December 4, 2017 at 10:14 am