Nahmod Law

Some Questions

What is a SLAPP lawsuit? What is an anti-SLAPP statute? And what, if anything, does section 1983 have to do with anti-SLAPP statutes?

Some Answers

1.  A SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed to chill the exercise of a defendant’s First Amendment rights in order “to obtain a financial advantage over one’s adversary by increasing litigation costs until the adversary’s case is weakened or abandoned.” John v. Douglas County School Dist., 219 P.3d 1276, 1280 (Nev. 2009).

2.  Nevada enacted an anti-SLAPP statute whose primary purpose was to protect the right to petition government for redress of grievances. The Nevada statute, modeled on California’s anti-SLAPP statute, provided that when a plaintiff brings an action “against a person based on a good faith communication in furtherance of the right to petition,” the defendant may file a special motion to dismiss which is treated procedurally as a motion for summary judgment so that the trial court can dismiss only if there are no genuine issues of material fact in dispute. Also, the moving party bears the initial burden of production and persuasion.

3.   May state courts apply such an anti-SLAPP statute to a section 1983 claim despite possible preemption under the Supremacy Clause? According to the Nevada Supreme Court in John, the answer is yes. Read the rest of this entry »

The Case

The Supreme Court has granted certiorari in Skinner v. Switzer,  2010 WL 338018 (Fifth Cir. 2010), cert granted, 130 S. Ct – (May 24, 2010), to deal with the following Question Presented:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

In the words of the petitioner, Skinner involves the following:

For ten years, Henry W. Skinner has sought access to DNA testing that could prove him innocent of the murders that landed him on Death Row. After the Texas courts arbitrarily turned back his diligent attempts to take advantage of state statutes affording such relief, he sued in federal court under 42 U.S.C. § 1983 to vindicate his due process right to “‘fundamental fairness in [the] operation’” of Texas’s scheme. Dist. Atty’s Office v. Osborne, 129 S. Ct. 2308, 2320 (2009)(citation omitted). The district court dismissed Mr. Skinner’s § 1983 suit solely on the ground that his claim sounded only in habeas corpus, and the Fifth Circuit summarily affirmed. The question presented is the same one the Court granted certiorari in Osborne to decide, but left unresolved. Read the rest of this entry »

Introduction

The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that prevailing plaintiffs  in § 1983 and other civil rights cases (excluding prisoners who are separately covered by the Prison Litigation Reform Act of 1995) are ordinarily entitled to a reasonable attorney’s fee unless special circumstances render such an award unjust. Typically, and to oversimplify, a reasonable attorney’s fee is based on what is called the “lodestar,” namely, the number of hours worked multiplied by the normal hourly billing rate. This lodestar is then modified to take account of the extent of the plaintiff’s success. See Hensley v. Eckerhart, 461 U.S. 424 (1983), dealing with the extent of success, and Blum v. Stenson, 465 U.S. 886 (1984), addressing prevailing market rates. The Court has declared that enhancements to the lodestar based on the contingency of success are not permissible under other statutory attorney’s fees provisions, City of Burlington v. Dague, 505 U.S. 557 (1992), and therefore are not permissible under § 1988 as well because of similar statutory language.

Question: What about enhancements to the lodestar based on the quality of an attorney’s performance and the results obtained? After Purdue v. Kenny A., 130 S. Ct. — (2010), the short answer is that these are permissible only in truly extraordinary circumstances.

Purdue v. Kenny A.

Purdue v. Kenny A., which involved a consent decree arising out of the plaintiff childrens’ successful class action against Georgia officials alleging structural deficiencies in Georgia’s foster-care system, dealt with the question of whether an attorney’s fees award based on the lodestar can ever be enhanced based solely on the quality of an attorney’s performance and the results obtained. A panel of the Eleventh Circuit had affirmed the district court’s $4.5 million enhancement of the $6 million lodestar figure based on these two factors.

Reversing and remanding, Justice Alito declared for the Court:

“This case presents the question whether the calculation of an attorney’s fee, under federal fee-shifting statutes, based on the “lodestar,” i.e., the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results. We have stated in previous cases that such an increase is permitted in extraordinary circumstances, and we reaffirm that rule. But as we have also said in prior cases, there is a strong presumption that the lodestar is sufficient; factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. Because the District Court did not apply these standards, we reverse the decision below and remand ….” Read the rest of this entry »

Introduction

As in ordinary tort law, a person who is sued under section 1983 for damages must be shown to be responsible in order to held liable. In other words, that person must have caused the plaintiff’s constitutional deprivation. But in certain section 1983 cases involving impermissible motivation, such as public employee equal protection and First Amendment cases, there are complications arising out of the burden-shift rule of Mt. Healthy Bd. of Education v. Doyle, 429 U.S. 274 (1977).

Typical Fact Pattern

Suppose a public employee is discharged and believes the discharge was impermissibly motivated either because of race (equal protection) or because what he or she said (First Amendment). It turns out that even if the plaintiff can prove this, he or she will not necessarily win on the merits and recover damages because of the Mt. Healthy burden-shift rule.

How the Mt. Healthy Burden-Shift Rule Works

Under Mt. Healthy, (1) the plaintiff has the burden of proving by a preponderance of the evidence that the impermissible motive was a substantial factor (not the but-for cause or the sole cause) for the discharge. Once the plaintiff does this, the plaintiff has made out a prima facie case and will prevail on the merits (2) unless the defendant can prove by a preponderance of the evidence that there was a permissible factor–such as insubordination, incompetence or the like–that also played a role in the discharge and–here’s the key– (3) the plaintiff would have been discharged anyway even in the absence of the impermissible motive. Read the rest of this entry »

Introduction

By now, all of us know that Justice Stevens has announced that he will step down immediately after the last day of the 2009 Term (in late June or early July 2010). In this post, I want to call attention to Justice Stevens’s unheralded position advocating respondeat superior liability for section 1983 local government liability.

Justice Stevens and Local Government Liability

This position was articulated by Justice Stevens, dissenting in Oklahoma City v. Tuttle, 471 U.S. 808, 834-844 (1985), and concurring in part and concurring in the judgment in Pembaur v. Cincinnati, 475 U.S. 469, 489-491 (1986). Essentially, he argued that the Court got it wrong in the seminal decision in Monell v. Dept. of Social Services, 436 U.S. 658 (1978), where the Court held, rejecting respondeat superior liability, that a local government could only be liable for damages under section 1983 when a plaintiff’s constitutional deprivation was brought about by an official policy or custom of the local government.

In his view, respondeat superior liability was an appropriate basis for local government liability for several reasons. First, in 1871 when section 1983 was enacted, local governments were indeed vicariously liable for many of their employees’ acts. And second, section 1983’s “subjects, or causes to be subjected” language was not inconsistent with respondeat superior liability.

His Position Exhumed

In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997), Justice Breyer, joined by Justices Stevens and Ginsburg, argued that in light of the increasing complexities of section 1983 local government liability, it was time to reexamine Monell‘s rejection of respondeat superior liability and its embrace of the official policy or custom requirement.

Justice Breyer maintained that Justice Stevens’s position was looking increasingly attractive because Monell had “produced an highly complex body of interpretive law.”  He argued that “the legal prerequisites for reexamination of an important statute are present here.” Among other things, the soundness of the original principle distinguishing respondeat superior liability from the official policy or custom requirement was doubtful. Also, this requirement had created a body of law that was “neither readily understandable nor easy to apply.”

Furthermore, these complexities had made it difficult for local governments to predict just when they would be held liable. Finally, many local government indemnification statutes provided for payments to victims of constitutional violations that were similar to those that would be provided in a respondeat superior regime.

Observations

Not surprisingly, Justice Breyer’s call in Bryan County for a reexamination of Monell fell on deaf ears in 1997. It is even less likely in 2010  that the Court will ease the requirements for section 1983 local government liability given its continuing, almost obsessive, concern with avoiding section 1983  respondeat superior liability. See, for example, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which has been the subject of several posts, where the Court on its own changed the requirements for constitutional tort supervisory liability because of this concern.

Nevertheless, I wonder what the world of section 1983 local government liability would have looked like had the Court in Monell not rejected respondeat superior liability but instead adopted Justice Steven’s position.

Introduction

Readers of this blog will recall that, as discussed in a prior post, the Court last Term held in Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009), that supervisory prosecutors charged with failing to train prosecutors in connection with the proper use in criminal trials of jailhouse informants were absolutely immune from damages liability in their individual capacities, despite the fact that this function was administrative in nature.  And they will also recall, as discussed in a different post, that the Court granted certiorari in another prosecutorial immunity case, Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009), only to dismiss when the case was settled after oral argument.

The Supreme Court recently granted certiorari in a third case involving prosecutors and § 1983 liability. Connick v.Thompson, No. 09-571, granting cert in Thompson v. Connick,  578 F.3d 293 (2009), deals with the liability of a prosecutor’s office for an alleged failure to train prosecutors in connection with their responsibilities under Brady v. Maryland, 373 U.S. 83 (1963), to turn over possibly exculpatory evidence to a criminal defendant. Connick raises issues of local government liability for failure to train arising out of Court’s seminal failure to train decision in City of Canton v. Harris, 489 U.S. 378 (1989) and the related decision in Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).

The Claim and Issues in Connick

The § 1983 plaintiff was convicted of murder and spent fourteen years on death row for a crime that he did not commit, allegedly because prosecutors did  not turn over to his attorney a lab report in a related case in which he had previously been convicted of attempted aggravated armed robbery. This lab report indicated that the perpetrator of the attempted armed robbery had type B blood, while the plaintiff had type O blood. Because of that conviction, the plaintiff did not testify in his own defense at his murder trial, where he was convicted. Many years later, the lab report that the prosecutors had failed to turn over was discovered, with the result that, in 1999, plaintiff’s attempted armed robbery conviction was vacated and, in 2002, his murder conviction was overturned. A subsequent murder retrial in 2003, at which plaintiff testified in his defense, resulted in a not guilty verdict.

He then sued the prosecutor’s office for damages under § 1983, in essence making a local government liability failure to train claim regarding proper training under Brady, and a jury awarded him $14 million. The district court affirmed and a panel of the Fifth Circuit affirmed in a decision later vacated by the Fifth Circuit when it granted en banc review. However, since the en banc Fifth Circuit (in three opinions) was evenly divided, the district court’s decision was affirmed.

The basis of the jury verdict and district court judgment was twofold. First, the district attorney in his official capacity (meaning the prosecutor’s office) was deliberately indifferent to an obvious need to train prosecutors regarding their obligations under Brady.  And second, the lack of Brady training was the moving force behind plaintiff’s constitutional injury. The en banc Fifth Circuit divided evenly on each of these findings.

The Court granted certiorari to decide the following Question Presented: “Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation contravene the rigorous culpability and causation standards of Canton and Bryan County [where there is no history of similar Brady violations]? Read the rest of this entry »