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Pro Se Tips and Tactics (Individual and Official Capacity Suits)
[Editor's Note : With this issue of PLN we would like to introduce a new feature that our readers should find useful. John Midgley is an attorney with the Institutional Legal Services Project of Columbia Legal Services in Tacoma. He has been doing prison and criminal litigation in Washington state for almost 20 years and in my opinion is one of the best attorneys in the state. He is very familiar with the problems faced by pro se prisoner litigants. On a quarterly basis his column on prison litigation will appear in PLN (March, June, September and December). Each one will cover an aspect of civil procedure that tends to be complex and difficult to maneuver for many litigants. These aspects, such as eleventh amendment and qualified immunity, discovery, etc., are an area of law almost completely different from prisoners' substantive rights (i.e., the eighth amendment, free speech, etc.,) that we generally cover in PLN . Many times courts never reach the merits of prisoner litigation because they become enmeshed in the procedural aspects, this is something we hope to help resolve. The column will be ongoing so let us know if there are any topics in particular that you would like to see covered.
We think that this column will be a step forward in our evolution as a magazine. We would like to encourage those members of the legal community who do prison litigation to consider submitting articles to PLN on topics that will be of interest and assistance to a national audience. We also have an opening for two other columnists who, like John, would like to fill this space with a quarterly column. If we get two more qualified and willing columnists, then we can feature the column each month.]
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In order to keep your § 1983 claim alive in federal court, you need to "sue the right people," that is name the correct defendants. If you do not name the right defendants, even the best case may well be dismissed or delayed for a long time. Therefore, it is important to get the defendants as right as possible the first time.
This article discusses two parts of suing the right defendant in a § 1983 case: The importance of suing only those who actually cause the constitutional wrong you are suing about, and the importance of suing those responsible for a constitutional wrong in their so-called "individual capacities."
1. Suing Only Those Causing The Wrong. 42 U.S.C. § 1983 cases allows a suit against any public employee who "subjects, or causes to be subjected" someone to a deprivation of federal constitutional rights. The Supreme Court has said that § 1983's language means that only those who actually cause the loss of constitutional rights can be required to pay money for the loss. Monell v. Department of Social Services , 436 U.S. 658 (1978). This is unlike ordinary state tort law, where the rule is " respondeat superior ": The boss is responsible for the wrongs of the employees.
This means that if you were deprived of your constitutional rights by being beaten by a prison guard, only that guard and anyone else causing the beating could be held liable for money damages under § 1983. So, not every supervisor of the guard or the prison warden could be held liable just because they are the bosses of the guard who did the beating. They would have to have some hand in causing the beating to occur.
But that doesn't mean that supervisors or the warden could never be held liable even if they were not present at the beating. On the contrary, there are ways that supervisors can be shown to have "caused" the deprivation of constitutional rights and therefore held liable under § 1983. This article cannot touch on specific cases or catalog all possible ways in which there could be liability, but to take one possible example, a supervisor or even in some cases another officer who knew the beating was going to occur and did nothing to stop it could be held liable. If you can show at least that a higher-up showed a "deliberate indifference" to a known risk of harm and that that indifference caused the constitutional violation to occur, that higher-up may be held liable. See, for example, Howard v. Adkinson , 887 F.2d 134 (8th Cir. 1989).
Similarly, higher-ups can be held liable where their policies or lack of adequate training can be shown to cause a constitutional harm. As only one example, the Supreme Court has held that where training of police is so inadequate that it amounts to deliberate indifference to the clearly established constitutional rights of those the police will deal with can lead to liability for those who should have done the proper training, if the inadequate training caused the violation of the plaintiff's rights. City of Canton v. Harris , 489 U.S. 378 (1989). Therefore, if you can prove that higher-ups had a policy or practice that led to -- that is, "caused" your beating, the higher-ups can be held liable.
What this means in practice is that for every defendant you name in your § 1983 complaint, you must state how that defendant is responsible for causing the violation of your constitutional rights. If you do not do that, then the court will dismiss any defendants who do not appear to have caused the deprivation you claim. So, if you are beaten by a guard and you only sue the warden, your entire case may well be dismissed unless you name the guard in an amended complaint. Likewise, any higher-ups will be dismissed if you only allege that they are the supervisors of the guard you claim has beaten you. You must point, in your complaint, to what each higher-up did or failed to do that caused what happened to you. If you cannot point to some act or failure to act by a higher-up that you honestly believe caused the beating, then that higher-up will not be a proper defendant.
2. Individual vs. Official Capacities
When suing governmental officials under § 1983, it is vitally important to sue them in their so-called "individual capacities." This section discusses what this means and why it is important.
§ 1983 allows damages to assessed against any "person" who "under color of state law" deprives someone of federal constitutional rights. All government employees are "persons" under § 1983 and can be sued for anything they do at work that violates clearly established constitutional rights. Hafer v. Melo , 502 U.S. (1991). However, not all governments themselves are "persons" under § 1983. For reasons that are beyond the scope of this article, the Supreme Court has held that local governments (counties, cities, etc.) are "persons" under § 1983, while state governments are not "persons" under § 1983. Will v. Michigan Department of State Police , 491 U.S. 58 (1989).
In addition, the Supreme Court has held that the state has immunity from suit in federal court under the 11th Amendment to the Constitution. Quern v. Jordan , 440 U.S. 332 (1979). Therefore, a federal court § 1983 suit for damages against the state itself will be dismissed.
In practice, this means that while you could name a county as a defendant in a § 1983 case (remembering that in order to get damages you must show a county policy that caused the constitutional violation), you cannot name a state. If you name the state, it will be dismissed as a defendant.
However, the tricky part is that you can unintentionally name the state as the only real defendant without even knowing you are doing so. This can happen by naming a state official as a defendant in his or her so-called "official capacity." In Will , the Supreme Court said that a suit against a state official in the "official capacity" makes the suit one against the person's office and therefore against the state itself , and must be dismissed. If you only sue state officials in their "official capacity," your whole case will be seen as one directly against the state and will be dismissed.
On the other hand, you can sue the same state official in her or his "personal capacity," and the suit can proceed. By suing the official in the "personal capacity" you are suing a "person" under § 1983, and not the state itself.
The distinction between "official" and "individual" capacities is often not very clear, nor is it very clear why the Supreme Court cares so much what you put after a defendant's name in your complaint. But they do care, so the crucial point is what you must do in a case asking for damages: Sue the defendants in their individual capacities, or at the very least do not say that the defendants are being sued in their official capacities. Simply describe how each defendant is a state employee (and was therefore acting "under color of state law") and what the person did to deprive you of your constitutional rights.
Note that if you are requesting an injunction, state officials can be sued in their official capacities. Will v. Michigan Department of State Police . This is because injunctions are not barred by the 11th Amendment and because injunctions look forward, not back. If you meet the strict requirements for issuance of an injunction, the injunction can run against anyone holding a particular office. For example, if you get an injunction that requires a warden to instruct guards that abusing prisoners is unconstitutional, a new warden who takes over the next day will be equally required to provide the training. But in a case asking for damages, which looks backward in time to compensate for what has been done by specific people, state officials can only be held liable if sued in their individual capacities for constitutional deprivations they have caused.
We think that this column will be a step forward in our evolution as a magazine. We would like to encourage those members of the legal community who do prison litigation to consider submitting articles to PLN on topics that will be of interest and assistance to a national audience. We also have an opening for two other columnists who, like John, would like to fill this space with a quarterly column. If we get two more qualified and willing columnists, then we can feature the column each month.]
* * *
In order to keep your § 1983 claim alive in federal court, you need to "sue the right people," that is name the correct defendants. If you do not name the right defendants, even the best case may well be dismissed or delayed for a long time. Therefore, it is important to get the defendants as right as possible the first time.
This article discusses two parts of suing the right defendant in a § 1983 case: The importance of suing only those who actually cause the constitutional wrong you are suing about, and the importance of suing those responsible for a constitutional wrong in their so-called "individual capacities."
1. Suing Only Those Causing The Wrong. 42 U.S.C. § 1983 cases allows a suit against any public employee who "subjects, or causes to be subjected" someone to a deprivation of federal constitutional rights. The Supreme Court has said that § 1983's language means that only those who actually cause the loss of constitutional rights can be required to pay money for the loss. Monell v. Department of Social Services , 436 U.S. 658 (1978). This is unlike ordinary state tort law, where the rule is " respondeat superior ": The boss is responsible for the wrongs of the employees.
This means that if you were deprived of your constitutional rights by being beaten by a prison guard, only that guard and anyone else causing the beating could be held liable for money damages under § 1983. So, not every supervisor of the guard or the prison warden could be held liable just because they are the bosses of the guard who did the beating. They would have to have some hand in causing the beating to occur.
But that doesn't mean that supervisors or the warden could never be held liable even if they were not present at the beating. On the contrary, there are ways that supervisors can be shown to have "caused" the deprivation of constitutional rights and therefore held liable under § 1983. This article cannot touch on specific cases or catalog all possible ways in which there could be liability, but to take one possible example, a supervisor or even in some cases another officer who knew the beating was going to occur and did nothing to stop it could be held liable. If you can show at least that a higher-up showed a "deliberate indifference" to a known risk of harm and that that indifference caused the constitutional violation to occur, that higher-up may be held liable. See, for example, Howard v. Adkinson , 887 F.2d 134 (8th Cir. 1989).
Similarly, higher-ups can be held liable where their policies or lack of adequate training can be shown to cause a constitutional harm. As only one example, the Supreme Court has held that where training of police is so inadequate that it amounts to deliberate indifference to the clearly established constitutional rights of those the police will deal with can lead to liability for those who should have done the proper training, if the inadequate training caused the violation of the plaintiff's rights. City of Canton v. Harris , 489 U.S. 378 (1989). Therefore, if you can prove that higher-ups had a policy or practice that led to -- that is, "caused" your beating, the higher-ups can be held liable.
What this means in practice is that for every defendant you name in your § 1983 complaint, you must state how that defendant is responsible for causing the violation of your constitutional rights. If you do not do that, then the court will dismiss any defendants who do not appear to have caused the deprivation you claim. So, if you are beaten by a guard and you only sue the warden, your entire case may well be dismissed unless you name the guard in an amended complaint. Likewise, any higher-ups will be dismissed if you only allege that they are the supervisors of the guard you claim has beaten you. You must point, in your complaint, to what each higher-up did or failed to do that caused what happened to you. If you cannot point to some act or failure to act by a higher-up that you honestly believe caused the beating, then that higher-up will not be a proper defendant.
2. Individual vs. Official Capacities
When suing governmental officials under § 1983, it is vitally important to sue them in their so-called "individual capacities." This section discusses what this means and why it is important.
§ 1983 allows damages to assessed against any "person" who "under color of state law" deprives someone of federal constitutional rights. All government employees are "persons" under § 1983 and can be sued for anything they do at work that violates clearly established constitutional rights. Hafer v. Melo , 502 U.S. (1991). However, not all governments themselves are "persons" under § 1983. For reasons that are beyond the scope of this article, the Supreme Court has held that local governments (counties, cities, etc.) are "persons" under § 1983, while state governments are not "persons" under § 1983. Will v. Michigan Department of State Police , 491 U.S. 58 (1989).
In addition, the Supreme Court has held that the state has immunity from suit in federal court under the 11th Amendment to the Constitution. Quern v. Jordan , 440 U.S. 332 (1979). Therefore, a federal court § 1983 suit for damages against the state itself will be dismissed.
In practice, this means that while you could name a county as a defendant in a § 1983 case (remembering that in order to get damages you must show a county policy that caused the constitutional violation), you cannot name a state. If you name the state, it will be dismissed as a defendant.
However, the tricky part is that you can unintentionally name the state as the only real defendant without even knowing you are doing so. This can happen by naming a state official as a defendant in his or her so-called "official capacity." In Will , the Supreme Court said that a suit against a state official in the "official capacity" makes the suit one against the person's office and therefore against the state itself , and must be dismissed. If you only sue state officials in their "official capacity," your whole case will be seen as one directly against the state and will be dismissed.
On the other hand, you can sue the same state official in her or his "personal capacity," and the suit can proceed. By suing the official in the "personal capacity" you are suing a "person" under § 1983, and not the state itself.
The distinction between "official" and "individual" capacities is often not very clear, nor is it very clear why the Supreme Court cares so much what you put after a defendant's name in your complaint. But they do care, so the crucial point is what you must do in a case asking for damages: Sue the defendants in their individual capacities, or at the very least do not say that the defendants are being sued in their official capacities. Simply describe how each defendant is a state employee (and was therefore acting "under color of state law") and what the person did to deprive you of your constitutional rights.
Note that if you are requesting an injunction, state officials can be sued in their official capacities. Will v. Michigan Department of State Police . This is because injunctions are not barred by the 11th Amendment and because injunctions look forward, not back. If you meet the strict requirements for issuance of an injunction, the injunction can run against anyone holding a particular office. For example, if you get an injunction that requires a warden to instruct guards that abusing prisoners is unconstitutional, a new warden who takes over the next day will be equally required to provide the training. But in a case asking for damages, which looks backward in time to compensate for what has been done by specific people, state officials can only be held liable if sued in their individual capacities for constitutional deprivations they have caused.
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