Posts Tagged ‘law’
When Do State and Local Law Enforcement Officers Act Under Color of Federal Law? Federal-State Cooperation and the Bivens Dilemma
By its very language, § 1983 actions can be brought against state and local law enforcement officers only when they act under color of state law, not federal law. In practical terms, this means that their allegedly unconstitutional conduct must constitute state action within the meaning of the Fourteenth Amendment. See, on state action, Chapter 2, Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025-26 ed.)(West/Westlaw).
The Bivens Remedy
In contrast, if state and local law enforcement officers are found to have acted under color of federal law, any damages remedies for constitutional violations must be sought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which implied a Fourth Amendment cause of action for damages from the Fourth Amendment itself.
However, under recent restrictive Supreme Court case law, such Bivens claims can ordinarily go forward only if the case does not arise in a new Bivens context. If it does arise in a new Bivens context, a Bivens remedy is unavailable if there are “special factors” indicating that the judiciary is “less equipped than Congress” to decide whether such a claim should proceed. The Supreme Court has emphasized that if there is just a single reason to reach that conclusion, then a Bivens remedy is unavailable.
Now consider the following two circuit court cases, one from the First Circuit and the other from the Ninth.
The First Circuit’s Jakuttis Decision: Federal, Not State, Action
In Jakuttis v. Town of Dracut, 95 F.4th 22 (1st Cir. 2024), a former town police officer sued a state trooper, among other defendants (including a United States Drug Enforcement (DEA) agent), under § 1983 alleging First Amendment retaliation arising out of actions taken against him because of his reports of wrongdoing by the town police department in connection with a federal law enforcement task force investigating corruption. According to the First Circuit, the state trooper was not a state actor but was instead acting under color of federal law. The plaintiff’s complaint alleged that the state trooper learned of plaintiff’s corruption assertions when the state trooper was on the job as a federal task force officer, and that he investigated those assertions as a federal task force officer and retaliated against plaintiff while working as a federal task force officer. It was not determinative for state action purposes that the plaintiff alleged that the defendant was a state trooper at all relevant times.
The Ninth Circuit’s Thai Decision: Federal, Not State, Action
Similarly, in Thai v. County of Los Angeles, 127 F.4th 1254 (9th Cir. 2025), two law enforcement officers from the Los Angeles District Attorney’s Office were sued under § 1983 for their allegedly unconstitutional conduct (apparently in violation of the Fourth Amendment) in connection with the plaintiffs’ applications for disability benefits. The Ninth Circuit, considering the “totality of the circumstances,” found that the defendants acted under color of federal, not state law. The officers, who were assigned full-time to a joint federal-state task force addressing disability benefits fraud, were not state actors because “the federal government was the source of authority under which the task force was implemented and because the officers’ day-to-day work was supervised by a federal officer”.
Comment
If the First and Ninth Circuits had found state action present, then the plaintiffs’ damages claims could have proceeded under § 1983. However, since they found that only federal action was present, those damages claims could theoretically only proceed under Bivens.
One might legitimately wonder, though, whether either or both of these damages claims arose in contexts different from Bivens. And if they did, were there “special factors” in these cases that precluded Bivens damages claims?
This is not idle speculation. Both cases stemmed from joint federal and state force cooperation, a not-unusual situation. This is especially the case in a time of joint federal (through ICE) and state enforcement of federal immigration law.
If such immigration enforcement is a context different from Bivens, and if the immigration setting is a special factor because Congress plays a major role, then persons injured by allegedly unconstitutional conduct of federal and state law enforcement officers would not have a damages remedy against either group of officers. A § 1983 damages claim would not be viable because of the absence of state action and a Bivens damages claim might not be viable because of recent Supreme Court restrictions on such claims.
Excessive Force Claims, Motions to Dismiss and Video Recordings
Procedural issues are generally beyond the scope of this blog. Still, it may be worth briefly mentioning that the Fourth Circuit, in reversing the district court’s dismissal of plaintiff’s complaint in a Fourth Amendment excessive force case, ruled that a federal district court may consider a video recording at the motion to dismiss stage and must credit the plaintiff’s version of the facts “to the extent they are not ‘blatantly contradicted’ by the recording.” Doriety for Estate of Crenshaw v. Sletten, 109 F.4th 670, 679 (4th Cir. 2024).
The video in this case, which was publicly available, was not introduced by the plaintiff but rather by the defendant police officer who had moved to dismiss. In response to this motion to dismiss, the plaintiff did not object to the district court’s consideration of the video and even referred to it as part of the “record.” But the plaintiff argued that the video did not support the motion to dismiss. The district court disagreed.
In reversing the district court’s grant of the defendants’ motion to dismiss, the Fourth Circuit found that the officer’s body-worn video did not blatantly contradict the plaintiff’s plausible allegations that the officer was not in danger at the time he fired additional shots at the plaintiff driver.
Note that the Fourth Circuit treated the defense motion to dismiss as just that: neither it nor the district court converted the motion into one for summary judgment. The Fourth Circuit also made clear that it did not have to reach the question whether the video was “integral to the complaint” and authentic because the plaintiff did not object to its use and indeed relied on it.
Finally, the Fourth Circuit commented that its use of the video in this case was a matter of first impression in its circuit. It also observed that such use was already the rule in at least two other circuits.
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.
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 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).
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.
An Updated Section 1983 Primer (9): Absolute Judicial Immunity
I have been updating my popular Section 1983 Primer series, first published sequentially over ten years ago. In a recently updated post I blogged about the Supreme Court‘s approach to absolute immunity generally under section 1983. I specifically referred to the three categories of absolutely immune defendants–legislators, judges and prosecutors–and also discussed the underlying policy considerations and the Court’s functional approach.
In the immediately preceding post, I addressed absolute legislative immunity. I discuss judicial immunity in this post.
Pierson v. Ray, 386 U.S. 537 (1967): The Seminal Judicial Immunity Decision
The Supreme Court held in Pierson v. Ray that judges are protected by absolute immunity when they act in a judicial capacity, even if they act unconstitutionally. The Court relied on the background of common law immunity in 1871, when section 1983 was enacted. In Pierson itself, a state court judge was ruled absolutely immune from damages liability under section 1983 even though he had convicted the plaintiff under an unconstitutional statute. For immunity purposes, it did not matter whether the judge did so knowingly.
Purposes of Absolute Judicial Immunity
Absolute judicial immunity is intended to protect the judicial process and not the judges themselves. If judges, who are easy targets, had to be concerned that rulings in civil or criminal cases would generate section 1983 claims against them–after all, someone always loses–this could have an adverse effect on their independent decision-making. In addition, section 1983 claims against judges would necessarily involve the re-litigation of earlier cases. Further, there is ordinarily a remedy available: an appeal.
The Relevance of Subject Matter Jurisdiction
However, for absolute immunity to apply, the judge must not have acted in the complete absence of all subject matter jurisdiction. If, for example, a probate court judge without any subject matter jurisdiction whatever over criminal cases were to convict a person of a crime unconstitutionally, that judge would not be protected by absolute immunity.
On the other hand, if the existence of subject matter jurisdiction is merely debatable, absolute immunity would still apply, as made clear by the Court in Stump v. Sparkman, 435 U.S. 349 (1978).
The Judicial Act Requirement
Another requirement for absolute judicial immunity is a judicial act. Stump involved the sterilization of the plaintiff when she was a minor at the request of her mother who had secured a court order from the defendant judge. The plaintiff did not know that she was being sterilized, but only found out some years later. Still, the Court determined that the challenged conduct of the judge was a judicial act protected by absolute judicial immunity: it was the kind of act normally performed by a judge, and the parties before the court (here, only the mother) dealt with the judge in his judicial capacity.
Who Is Protected
Judges at all levels are protected by absolute judicial immunity, ranging from magistrates and justices of the peace all the way up to a state’s highest appellate judges.
Comments
1. The scope of judicial immunity from section 1983 damages liability is very broad. Indeed, the concern with protecting the integrity of the judicial process is so weighty that absolute immunity even extends to witnesses who allegedly testify falsely in civil and criminal proceedings. Briscoe v. LaHue, 460 U.S. 325 (1983).
2. The functional approach to immunities applies to absolute judicial immunity. A judge who acts unconstitutionally in a non-judicial role, for example, as an administrator who fires someone, is not protected by absolute immunity for that act. Forrester v. White, 484 U.S. 219 (1988).
3. What I address here is absolute judicial immunity from damages liability. Whether and to what extent judges are absolutely immune from injunctive relief is governed by The Federal Courts Improvement Act of 1996 (PDF), Pub. L. No. 104-317. That Act in part overruled Pulliam v. Allen, 466 U.S. 522 (1984), which held that judges were not absolutely immune from injunctive relief regarding their judicial acts. See §§ 7:64-65 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2024-2025 Edition)(West/Westlaw).
Next Up: Absolute Prosecutorial Immunity
Cert Granted in Williams v. Washington: State Court Section 1983 Claims and Exhaustion of Administrative Remedies
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 court. Even though Patsy itself involved a § 1983 claim filed in federal court, the opinion made clear 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.
Now Alabama has joined with South Dakota and ruled the same way in Johnson v. Washington, 2023 WL 4281620 (S. Ct. Ala. 2023), cert granted sub nom Williams v. Washington, 144 S. Ct. — (2024)(No. 23-191), which will be argued in the Supreme Court’s 2024 Term.
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.”
As noted, the Supreme Court granted certiorari on the question “Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.”
Comments
1. A fair reading of Patsy makes abundantly clear that the Supreme Court was interpreting § 1983 when it rejected the Fifth Circuit’s “flexible” approach to exhaustion of administrative remedies. It emphasized § 1983’s legislative history as well as § 1997e of the Civil Rights of Institutionalized Persons Act that showed Congress’s understanding of § 1983. It also rejected the various policy arguments presented in favor of an exhaustion of administrative remedies requirement.
2. 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 courts because it conflicted “in its purpose and effects with the remedial objectives of § 1983 … [and would] predictably produce different outcomes … depending on whether the claims in asserted in state or federal court ….”
3. It is likely that what attracted four Justices to this case, thus leading to a grant of certiorari, is the issue as articulated by the Alabama Supreme Court: whether state courts can be compelled to decide federal claims purportedly outside of state courts’ jurisdiction. Significantly, the Court has already addressed this federalism issue in two cases.
In Howlett v. Rose, 496 U.S. 356 (1990), 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 in Haywood v. Drown, 556 U.S. 729 (2009), 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.
Significantly, Justice Thomas dissented, making an originalist argument. Also dissenting, Chief Justice Roberts and Justices Scalia and Alito argued that the majority had misinterpreted the Court’s precedents. (Note that Chief Justice Roberts and Justices Thomas and Alito are still on the Court)
4. In light of the current understanding of § 1983 regarding exhaustion of administrative remedies, and under existing Supreme Court precedent dealing with federal claims in general, and § 1983 claims in particular, as they relate to state court jurisdiction, the Alabama Supreme Court got it wrong. Williams should therefore be reversed.
All of these cases, and more, are analyzed in Chapters 1 (“converse-Erie”) and 9 (exhaustion of administrative remedies) of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
Supreme Court Grants Certiorari in Attorney’s Fees/Preliminary Injunction Case: Lackey v. Holcomb
The Supreme Court recently granted certiorari in Lackey v. Holcomb, 145 S. Ct. – (4-22-24)(No. 23-621), to deal with the following Questions Presented:
(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.
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.
Reversing with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its 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.”
Lackey will address the unresolved question in Sole v. Wyner, 551 U.S. 74 (2007). 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. This is the issue Lackey will consider.
Lackey will be argued and decided in the Court’s 2024 Term.
Comment
The Court should affirm the Fourth Circuit under the facts of this 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.
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 (2023-24 ed.)(West/Westlaw).
Nahmod Law 