A GUIDE TO CIVIL RIGHTS LIABILITY UNDER 42 U.S.C. � 1983:
����������������� AN OVERVIEW OF SUPREME COURT AND ELEVENTH CIRCUIT
IAN D. FORSYTHE
Hilyard, Bogan, Palmer & Lockeby, P.A.
105 East Robinson Street, Suite 201
���������� Orlando, Florida 32801
Tel. (407) 425-4251
42 U.S.C. � 1983,
commonly referred to as "section 1983" provides:
Every person who under
color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at
law, Suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in
such officer's judicial capacity, injunctive relief shall not be granted unless
a declaratory decree was violated or declaratory relief was unavailable.� For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia shall be considered
to be a statute of the District of Columbia.
42 U.S.C. � 1983
Section 1983 was enacted
on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as
the "Ku Klux Klan Act" because one of its primary purposes was to
provide a civil remedy against the abuses that were being committed in the
southern states, especially by the Ku Klux Klan.� While the existing law protected all citizens in theory, its
protection in practice was unavailable to some because those persons charged with
the enforcement of the laws were unable or unwilling to do so.� The Act was intended to provide a private
remedy for such violations of federal law, and has subsequently been
interpreted to create a species of tort liability.
The number of cases that
have been brought under section 1983 has dramatically increased since 1961 when
the Supreme Court decided Monroe v. Pape.� In Monroe, the Supreme Court held
that a police officer was acting "under color of state law" even
though his actions violated state law.� This was the first case in which the Supreme
Court allowed liability to attach where a government official acted outside the
scope of the authority granted to him by state law.� Since Monroe v. Pape was decided, an extensive body of law
has developed to govern section 1983 claims.�
This article is intended to provide an overview of that extensive
body of law, and will include seminal precedent from the United States Supreme
Court and the Eleventh Circuit Court of Appeals--a comprehensive study of all
law related to section 1983 is beyond the scope of this article.
II.����������� ELEMENTS OF A SECTION 1983 CLAIM
(i)����������� "Every person . . ."
under the statute are subject to liability.� A state is not a person subject to suit
under section 1983, but a
state officer can be sued in his official capacity for prospective or
despite the fact that an suit against a government official in his official
capacity represents nothing more than a suit against the government entity
itself!� Despite this logical inconsistency, the current
state of the law is that a state may not be sued for damages, but may be sued
for declaratory or injunctive relief.�
Municipalities and local governments are persons subject to suit for
damages and prospective relief,
but the United States Government is not.� Individual employees of federal,
government may be sued in their individual capacities
for damages, declaratory or injunctive relief.
While the determination
of who is a "person" is a matter of federal statutory interpretation,
the matter of who has the capacity to be sued is determined by the law of the
forum state.� Likewise, the law of the forum is to be
applied in actions under section 1983 where the law of section 1983 provides no
(ii)����������� ". . . who under color of
[state law] . . ."
definition of acting under the color of state law requires that the defendant
have exercised power "possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law,"
and such actions may result in liability even if the defendant abuses the
position given to him by the state.� A private actor may also act under color of
state law under certain circumstances.� For example, it has been held that a
physician who contracts with the state to provide medical care to inmates acts
under the color of state law.� For all practical purposes, the "color
of state law" requirement is identical to the "state action"
prerequisite to constitutional liability.�
(iii)����������� ". . . subjects or causes to be
subjected . . ."
Section 1983 does not
impose a state of mind requirement independent of the underlying basis for
there must be a causal connection between the defendant's actions and the harm
that results.� In order to hold a local government liable
under section 1983, the Supreme Court has interpreted this causation element to
require that the harm be the result of action on the part of the government
entity that implemented or executed a policy statement, ordinance, regulation,
or decision officially adopted and promulgated by that body's officers, or the
result of the entity's custom.� Further, the entity's policy or custom must
have been the "moving force" behind the alleged deprivation.� This "custom or policy"
requirement is a dramatic departure from the rule of respondeat superior that
prevails in many common law actions.
A local government is
said to have an unconstitutional policy when it fails to train its employees,
and the failure to train amounts to deliberate indifference to an obvious need
for such training, and the failure train will likely result in the employee
making a wrong decision.� An unconstitutional policy may also exist if
an isolated action of a government employee is dictated by a "final
or if the authorized policymaker approves a subordinate's decision and the
basis for it.� However, a supervisor can only be liable in
his individual capacity if he directly participates in causing the
harm--relying upon respondeat superior is insufficient.� The Supreme Court has rejected the notion
that a plaintiff must meet a heightened pleading standard to state a claim
against a municipality for an unconstitutional custom or policy.
(iv)". . . [any person to] the deprivation of
rights . . ."
Section 1983 is not
itself a source of substantive rights, it merely provides a method for the
vindication of rights elsewhere conferred in the United States Constitution and
Laws.� Therefore, a plaintiff may prevail only if
he can demonstrate that he was deprived of rights secured by the United States
Constitution or federal statutes.� It is
beyond the scope of this article to discuss all of the rights available under
the United States Constitution, nevertheless, this article will provide an
overview of perhaps the most utilized of all constitutional provisions--the
Fourteenth Amendment Due Process Clause [hereinafter "the Due Process
The Supreme Court has
held that the Due Process Clause was not intended to supplant tort law, or to
become "a font of tort law to be superimposed upon whatever systems may
already be administered by the states."� Against this backdrop, to state a claim for
a deprivation of Due Process, a plaintiff must show: (1) that he possessed a
constitutionally protected property interest; and (2) that he was deprived of
that interest without due process of law.� Due process property interests are created
by "existing rules or understandings that stem from an independent source
such as state law--rules or understanding that secure certain benefits and that
support claims of entitlement to those benefits."� To have a property interest protected by the
Due Process Clause, "a person must have more than an abstract need or
desire for it.� He must have more than a
unilateral expectation of it.� He must,
instead, have a legitimate claim of entitlement to it."� While the existence of a protected property
interest is decided by reference to state law, the determination of whether due
process was accorded is decided by reference to the Constitution.� Due process requires that "a
deprivation of life, liberty, or property 'be preceded by notice and
opportunity for hearing appropriate to the nature of the case,'"
but the state does not have to provide the same remedies available under
section 1983 in order to satisfy due process.
In construing the Due
Process Clause, the United States Supreme Court has held that negligent acts by
state actors do not effect a "deprivation" for the purposes of the
Due Process Clause,
and the random and unauthorized conduct of a government actor, even if
intentional, does not implicate the Due Process Clause if the state provides a
meaningful post-deprivation remedy, such as, for example, a tort remedy in its
own courts.� However, where the state can feasibly
provide a pre-deprivation hearing, it must do so regardless of the
post-deprivation remedies available,
and in the absence of a special relationship created or assumed by the state, a
state's failure to protect an individual from violence or injury caused by
private actors cannot state a violation of the Due Process Clause.
In addition to
protection against deprivations of procedural due process, the Due
Process Clause has two substantive components--the substantive due
process simpliciter, and incorporated substantive due process.� In order to state a claim for a violation of
the substantive due process simpliciter, the plaintiff must demonstrate that
the defendant engaged in conduct that was "arbitrary, or conscience
shocking, in a constitutional sense."� This form of due process has very limited
in contrast to certain procedural due process claims,
the existence of adequate post-deprivation remedies does not bar a substantive
due process claim.� With respect to incorporated substantive due
process, the plaintiff may state a claim by proving a violation of one of the
Bill of Rights.� The Supreme Court has
held that one of the substantive elements of the Due Process Clause protects those
rights that are fundamental--rights that are implicit in the concept of ordered
liberty, and has, over time, held that virtually all of the Bill of Rights
protect such fundamental rights and has likewise held that they apply to the
states through the "liberty" interest of the Due Process Clause.� However, the Court has held that when a
specific provision within the Bill of Rights already provides protection, the
more generalized notion of due process should not be used to define
In addition to providing
a remedy for deprivations of constitutional rights, section 1983 also makes
actionable violations of federal "Laws."� A violation of a federal statute is
cognizable only when the violation trammels a right secured by federal law.� However, a statute is said to create a
federal right only when "the provision in question is intended to benefit
the putative plaintiff,"
unless it reflects merely a congressional preference for a certain kind of
conduct rather than a binding obligation on the government unit,
or unless the putative plaintiff's interest is too vague and amorphous such
that it is beyond the competence of the judiciary to enforce.
. . . shall be liable . . . in an action at law, Suit in equity, or other
proper proceeding for redress . . . "
There is no requirement
that the plaintiff sue in federal court because state courts have concurrent
the usual rule is exhaustion of administrative and judicial state remedies is
not a prerequisite to a section 1983 action.� Also, the existence of concurrent state
remedies is not a bar to a section 1983 action.� With respect to the extent of damages
available, the Supreme Court has noted that the basic purpose of a section 1983
damages award is to compensate the victims of official misconduct, and
therefore held that there is no limit on actual damages if they can be proven.� But where they are not proved, only nominal
damages of $1.00 may be awarded.� Punitive damages may also be awarded, but
not against a municipality.� Injunctive relief is also permitted.
III.����������� DEFENSES AND IMMUNITIES
States and state
agencies are entitled to Eleventh Amendment immunity in federal court,
but local governments have no immunity from damages flowing from their
constitutional violations, and may not assert the good faith of its agents as a
defense to liability.� Further, state law sovereign immunity and
state law limitations on damages do not protect local governments from
liability under section 1983,
and state laws requiring pre-suit notification prior to initiating an action
against the state or its subdivisions similarly do not apply.� Therefore, local governments are left in the
unique and unhappy situation of being subject to suit without the benefit of
any form of immunity.
In contrast to the
distinct lack of immunity available to local governments, individual capacity
defendants are protected by qualified immunity.� Qualified immunity is a powerful tool that
shields individual officials who are performing discretionary activities unless
their conduct violates "clearly established statutory or constitutional
rights of which a reasonable person would have known."� A government official is entitled to
qualified immunity unless his "act is so obviously wrong, in the light of
preexisting law, that only a plainly incompetent officer or one who was
knowingly violating the law would have done such a thing."� The qualified immunity inquiry is purely
objective--the subjective intentions of the actor is irrelevant.� Qualified immunity is not only immunity from
liability, but it is immunity from suit as well,
and shields individual capacity defendants even where a constitutional
violation may have occurred.� Likewise,
a court should scrutinize a plaintiff's claim to determine if the plaintiff
states a constitutional claim at all, prior to analyzing whether the defendant
is entitled to qualified immunity.� The burden of proving that the law was
clearly established cannot be carried by stating constitutional rights in
general terms--a plaintiff within the eleventh circuit must cite to specific
decisions of the United States Supreme Court, the Eleventh Court of Appeals, or
the highest state court in which the case arose.
Qualified immunity must
be plead as an affirmative defense by the defendant official,
and becomes a matter for the court to decide, even if it requires a factual
determination as to whether the defendant acted reasonably under the
the court should rule on the issue of qualified immunity at the earliest
possible stage of litigation.� An individual defendant in federal court
may immediately appeal a denial of qualified immunity,
even if a prior appeal of the denial of qualified immunity was unsuccessful,
and even if other claims remain for trial.� Until the issue of qualified immunity is
decided, the defendant official may resist discovery,
and there is authority to the effect that he may stay the entire proceedings
during an appeal of the denial of qualified immunity.� While the Supreme Court has rejected a
heightened pleading standard for claims against local governments, a plaintiff
must nevertheless plead facts with specificity to overcome an individual
capacity defendant's qualified immunity.
Private individuals who
perform state functions,
and private corporations who contract with the government
may not be entitled to qualified immunity.�
State and local legislators
and judges are
protected by absolute immunity when sued in their individual capacity
for damages or injunctive relief, while prosecutors
are entitled to absolute immunity when sued in their individual capacities for
damages only.� In any event, as
discussed above, all individual capacity defendants are, at a minimum, entitled
to qualified immunity.
The Reconstruction Civil
Rights Acts did not contain a statute of limitations for section 1983 actions,
and it is appropriate to adopt a local time limitation so long as it is not
inconsistent with federal law.� The Supreme Court has held that section 1983
is best characterized as a tort action for the recovery of damages, and
therefore held that the appropriate statute of limitations to be adopted is the
state statute applicable to personal injury actions.
. The catalyst for the
enactment of the Act was the "campaign of violence and deception in the
South, fomented by the Ku Klux Klan, which was denying citizens their civil and
political rights."� Wilson v.
Garcia, 471 U.S. 261, 276 (1985).�
The following quote from Representative Lowe of the 42nd Congress is
While murder is stalking abroad in disguise,
while whippings and lynchings and banishing have been visited upon unoffending
American citizens, the local administrators have been found inadequate or
unwilling to apply the proper corrective.�
Combinations, darker than the night that hides them, conspiracies,
wicked as the worst of felons could devise, have gone unwhipped of
justice.� Immunity is given to crime and
the records of public tribunals are searched in vain for any evidence of
Cong. Globe, 42d Cong. 1st Sess., 374
(1871)(remarks of Rep. Lowe)(quoted in Wilson, 471 U.S. at 276)).
. Memphis Community
School Dist. v. Stachura, 477 U.S. 299, 305 (1986).
. City of Oklahoma
City v. Tuttle, 471 U.S. 808 (1985).
. Government officials
may be sued in their individual capacity.� Such a suit does not represent a suit against the government
entity for which he is associated. Kentucky v. Graham, 473 U.S. 159, 165
(1985).� The failure to identify in
which capacity a defendant is being sued is a critical pleading defect.� Colvin v. McDougall, 62 F.3d 1316,
1318 (11th Cir. 1995).
. Dean v. Barber,
951 F.2d 210 (11th Cir. 1992); Fed.R.Civ.P. 17(b).� For example, Florida law provides that divisions of local
governments, such as police departments, do not have the capacity to be sued.� Florida City Police Department v.
Corcoran, 661 So. 2d 409 (Fla. 3d DCA 1995).
. Board of Regents v.
Tomanio, 446 U.S. 478 (1980).
. Section 1983's
requirement that a person act "under color of any statute, ordinance,
regulation, custom or usage of any State or Territory or District of
Columbia" is commonly abbreviated as "under color of state law."
. West v. Atkins,
487 U.S. 42, 49 (1988)(quoting United States v. Classic, 313 U.S. 299,
326 (1941)); Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); Parratt
v. Taylor, 451 U.S. 144, 152 (1970).�
However, in the only case in which the Supreme Court held that a
government employee did not act under color of sate law, the Court held that a
public defender does not act under color of state law while performing a
lawyer's traditional function of representing criminal defendants. Polk
County v. Dodson, 454 U.S. 312, 325 (1981).
. Wyatt v. Cole,
504 U.S. 158, 162 (1992); Lugar v. Edmondson Oil Co., 457 U.S. 922, 924
. West v. Atkins,
487 U.S. 42 (1988); Ort v. Pinchback, 786 F.2d 1105 (11th Cir. 1986).
. Lugar v. Edmondson
Oil Co., 457 U.S. 922, 929 (1982).
. Parratt v. Taylor,
451 U.S. 527 (1981), overruled in part, Daniels v. Williams, 474
U.S. 327 (1986).
. Mt. Healthy City
School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977).
. Monell v.
Department of Social Services of the City of New York, 436 U.S. 658,
690-691, (1978).� This "custom or
policy" requirement has also been applied to private corporations who
contract with the state to provide medical care to prisoners. Howell v.
Evans, 922 F.2d 712, 723-24 (11th Cir.), order vacating appeal, 931
F.2d 711, 712 (11th Cir. 1991), partially reinstated and appealed sub nom,
Howell v. Burden, 12 F.3d 190 (11th Cir. 1994).
. Monell, at 691-695;
Polk County v. Dodson, 454 U.S. 312, 325 (1981); Fundiller v. City of
Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985).� Isolated unconstitutional incidents, without
more, cannot bind a municipality.� Oklahoma
City v. Tuttle, 471 U.S. 808 (1985).
. City of Canton v.
Harris, 489 U.S. 378 (1989); Gold v. City of Miami, 1998 WL 54803
(11th Cir. 1998); Sewell v. Town of Lake Hamilton, 117 F.3d 488 (11th.
Cir. 1997).� However, where the
employee's proper course of action "is obvious to all without training or
supervision, then the failure to train or supervise is generally not 'so
likely' to produce a wrong decision as to support an inference of deliberate
indifference by city policymakers to the need to train or supervise."� Sewell, 117 F.3d at 490.
. Pembaur v. City of
Cincinnati, 475 U.S. 469 (1986); Bryan County v. Brown, 520 U.S. 397
(1997).� Who is a "final
policymaker" is decided by reference to state law.� Pembaur, at 483; McMillan v.
Monroe County, 520 U.S. 781 (1997).
. City of St. Louis
v. Praprotnik, 485 U.S. 112, 127 (1988).�
However, merely going along with the discretionary decisions made by
subordinates is not a delegation to them of the authority to make policy.� Id.
. Greason v. Kemp,
891 F.2d 829, 836 (11th Cir. 1990); Brown v. Crawford, 906 F.2d 667, 671
(11th Cir. 1990); Zatler v. Wainewright, 802 F.2d 397, 401 (11th Cir.
. Leatherman v.
Tarrant County, 507 U.S. 163 (1993).�
There is, however, a heightened pleading standard for individual
capacity claims.� See note 83 infra,
and accompanying text.
. Chapman v. Houston
Welfare Rights Org., 441 U.S. 600, 617 (1979); Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979).� Section
1983 does not provide for the vindication of rights secured by state law.� Id. at 145-146; Almand v. DeKalb
County, 103 F.3d 1510, 1513 (11th Cir. 1997).
amend. XIV, �1.� The Fourteenth
Amendment Due Process clause is a limitation on state power, while the Fifth
Amendment Due Process clause limits federal power.� Halinger v. Davis, 146 U.S. 314, 319 (1892).
. Hudson v. Palmer,
468 U.S. 517, 533 (1984)("[A]n unauthorized intentional deprivation of
property by a state employee does not constitute a violation of the procedural
requirements of the due process clause of the 14th amendment if a meaningful
postdeprivation remedy for the loss is available.� For intentional, as for negligent deprivations of property by
state employees, the state's action is not complete until and unless it
provides or refuses to provide a suitable postdeprivation remedy.").� The Court later held that negligence does
not constitute a "deprivation."�
Daniels v. Williams, 474 U.S. 327 (1986).� Seealso, Zinermon v. Burch,
494 U.S. 113, 132 (1990).
. DeShaney v.
Winnebago County Dept. of Social Services, 489 U.S. 189 (1989); Santamorena
v. Georgia Military College, 147 F.3d 1337, 1339-1340 (11th Cir.
1998).� As with all actions predicated
upon a violation of the United States Constitution, in order to state a claim
for a deprivation of due process, "state action" must be
present.� The eleventh circuit has
recognized three primary tests to determine whether the actions of a private
entity constitute state action: (1) the public function test; (2) the state
compulsion test; and (3) the nexus/joint action test.� National Broad Co. v. Communications Workers of Am., 860
F.2d 1022, 1026 (11th Cir. 1988).
. Collins v. City of
Harker Heights, Texas, 503 U.S. 115, 128 (1992); Rymer v. Douglas County,
764 F.2d 796, 801 (11th Cir. 1985).
. Collins, 503 U.S.
at 125("As a general matter, the Court has always been reluctant to expand
the concept of substantive due process because the guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended.").� Seealso, County of Sacramento
v. Lewis, 523 U.S. 833 (1998)(high speed police chases with no intent to
harm suspects physically or to worsen their legal plight do not give rise to
liability for violation of substantive due process); Albright v. Oliver,
510 U.S. 266, 271-272 (plaintiff could not make out substantive due process
claim for alleged prosecution without probable cause because Fourth Amendment
is more appropriately considered); Graham v. Connor, 490 U.S. 386, 394
(1989)(claims of force arrest by police officer during arrest or detention
cannot state a substantive due process claim--it is more appropriately analyzed
under Fourth Amendment); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.
1994)(in non-legislative cases, only procedural due process claims are
available to pretextually terminated employees).
. Palko v.
Connecticut, 302 U.S. 319, 325 (1937).�
For example, the Supreme Court has held that the Fourth Amendment proscription
against unreasonable searches and seizures, Mapp v. Ohio, 367 U.S. 643
(1961), and the Sixth Amendment right to a speedy public trial, Klopfer v.
North Carolina, 386 U.S. 213 (1967), apply to the states.
. Albright v. Oliver,
510 U.S. 266, 273 (1994); Graham v. Connor, 490 U.S. 386, 395 (1989).
. Pennhurst State
School and Hospital v Halderman, 451 U.S. 1, 19 (1981).
. Golden State,
493 U.S. at 106 (quoting Wright v. Roanoke Redevelopment & Hous. Auth.,
479 U.S. 418, 431-32 (1987)).� Seealso, Maynard v. Williams, 72 F.3d 848, 851 (11th Cir. 1996).
. Howlett v. Rose,
496 U.S. 356 (1990).� Of course, a
defendant in state court may remove to federal court.� 28 U.S.C. � 1441.
. Monroe v. Pape,
365 U.S. 167, 183 (1961)(exhaustion of judicial remedies is not a prerequisite);
Patsy v. Florida Board of Regents, 457 U.S. 496, 501 (1982)(exhaustion
of administrative remedies is not a prerequisite).� But see, Younger v. Harris, 401 U.S. 37 (1971)(a
federal plaintiff is barred from seeking declaratory or injunctive relief relating
to ongoing state criminal judicial proceedings); Heck v. Humphrey, 512
U.S. 477 (1994)(plaintiff must prove that a conviction or sentence has been
reversed prior to recovering damages for unconstitutional conviction or
imprisonment); 42 U.S.C. � 1997e (a prisoner's civil rights lawsuit may be
delayed up to 180 days to require the prisoner to exhaust administrative
. Zinermon v. Burch,
494 U.S. 113, 124 (1990).
. Farrar v. Hobby,
506 U.S. 103, 112 (1992); Carey v. Piphus, 435 U.S. 247, 266-267 (1978).
. Smith v. Wade,
461 U.S. 30 (1983); City of Newport v. Fact Concerts, 453 U.S. 247
(1981).� A municipality may, however, be
jointly and severally liable.� Finch
v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989).
. Edelman v. Jordan,
415 U.S. 651 (1974).� But as discussed
above, because states are not "persons" under the statute, they
cannot be sued in either state or federal court.� See note 6, supra, and accompanying text.
. Owen v. City of
Independence, MO, 445 U.S. 621 (1980); Monell v. Dept. of Social
Services of New York, 436 U.S. 658, 699-700 (1978).
. Howlett v. Rose,
496 U.S. 356 (1990); Hamm v. Powell, 874 F.2d 766, 770 (11th Cir. 1989).
. Harlow v.
Fitzgerald, 457 U.S. 800 (1982).� Seealso, Anderson v. Creighton, 483 U.S. 635 (1987); Lassiter v.
Alabama A & M University Board of Trustees, 28 F.3d 1146 (11th Cir.
. Harlow, 457
U.S. at 817; Lassiter, 28 F.3d at 1149.
. Lassiter, 28
F.3d at 1149; Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998)(the
plaintiff must point to case law which predates the official's alleged improper
conduct, involves materially similar facts, and truly compels the conclusion
that the plaintiff had a right under federal law).
. Crawford-El v.
Britton, 523 U.S. 574 (1998); Anderson v. Creighton, 483 U.S. 635,
641 (1987); Harlow v Fitzgerald, 457 U.S. 800 (1982).
. "One of the
purposes of immunity, absolute or qualified, is to spare a defendant not only
unwarranted liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit."�
Siegert v. Gilley, 500 U.S. 226, 232 (1991).� See also, Ansley v. Heinrich,
925 F.2d 1339, 1345 (11th Cir. 1991).
. Siegert v. Gilley,
500 U.S. 226 (1991); GJR Investments Inc. v. Escambia County, 132 F.3d
1359, 1367 (11th Cir. 1998).� Courts
should not assume that the plaintiff states a constitutional claim simply to
get to the qualified immunity issue.� Siegert,
500 U.S. at 232.
. Jenkins v.
Talladega City Bd. of Educ., 115 F.3d 821, 826-27 n.4 (11th Cir. 1997)(en
banc).� "Public officials are not
obligated to be creative or imaginative in drawing analogies from previously
decided cases." Id. at 827.
. Behrens v.
Pelletier, 516 U.S. 299, 313 (1996); Hunter v. Bryant, 502 U.S. 224,
228 (1991); Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992)(if
there are disputed factual issues regarding qualified immunity that a jury
should resolve, special interrogatories would be appropriate).
. Hunter v. Bryant,
502 U.S. 224, 228 (1991).� A defendant
official may assert the qualified immunity defense in 12(b)(6) motion for
failure to state a claim, as an affirmative defense in a 12(c) request for
judgment on the pleadings, and on a Rule 56(e) summary judgment motion.� Ansley v. Heinrich, 925 F.2d 1339,
1347 (11th Cir. 1991).
. A defendant in state
court does not necessarily have the right to an interlocutory
appeal.� Johnson v. Fankell, 520
U.S. 911 (1997).� But see,
. Mitchell v. Forsyth,
472 U.S. 511, 525-26 (1985).� However, a
defendant may not appeal the denial of a summary judgment motion on the issue
of qualified immunity if the denial was based solely upon the existence of
disputed factual issues, as opposed to a finding that the law was not clearly
established, or that the defendant did not act objectively reasonably.� Johnson v. Jones, 515 U.S. 304
. Johnson v. Fankell,
520 U.S. 911 (1997)("[I]f [qualified immunity] is found applicable at any
stage of the proceedings, it determines the outcome of the litigation by
shielding the official from damages liability); Behrens v. Pelletier,
516 U.S. 299, 305-11 (1996).� The other
claims that remain for trial may consist of a claim against the official in his
official capacity. Id.
. Crawford-El v.
Britton, 523 U.S. 574, 598 (1998)("If the defendant does plead the
immunity defense, the district court should resolve that threshold question
before permitting discovery"); Mitchell v. Forsyth, 472 U.S. 511,
526 (1985)("Unless the plaintiff's allegations state a claim of violation
of clearly established law, a defendant pleading qualified immunity is entitled
to dismissal before commencement of discovery.").
. Summit Medical
Associates, P.C. v. James, 1998 WL 125776 (M.D.Ala. 1998)(citing Goshtasby
v. Board of Trustees of Univ. of Ill., 123 F.3d 427 (7th Cir.
1997))(relating to appeal of Eleventh Amendment immunity).
. GJR Investments,
Inc. v. Escambia County, 132 F.3d 1359, 1367 (11th Cir. 1998).
. See, Richardson
v. McKnight, 521 U.S. 399 (1997)(private prison guards are not entitled to
qualified immunity); Wyatt v. Cole, 504 U.S. 158 (1992)(private
individuals who invoked state replevin, garnishment, or attachment statutes
were not entitled to qualified immunity).�
However, the Supreme Court did not "foreclose the possibility that
private defendants . . . could be entitled to an affirmative defense based upon
good faith and/or probable cause or that � 1983 suits against private, rather
than governmental, parties could require plaintiffs to carry additional
burdens."� Wyatt, 504 U.S.
. See, McDuffie
v. Hooper, 982 F.Supp. 817 (M.D. Ala. 1997)(private corporate health care
providers who contract with government agencies are not entitled to qualified
immunity); Hartman v. Correctional Medical Services, Inc., 960 F.Supp
1577, 1582 (M.D. Fla. 1996); Smith v. United States, 850 F.Supp 984, 986
(M.D. Fla. 1994).� Butsee,
Blumel v. Mylander, 954 F.Supp 1547, 1560 (M.D. Fla. 1997).
. Supreme Court of
Virginia v. Consumers Union, 446 U.S. 719 (1980); Tenney v. Brandhove,
341 U.S. 367 (1951).� However,
individual legislative immunity does not apply where the decision is an
application of policy to a specific party. �In that instance, the act is said to be administrative as opposed
to legislative. Crymes v. DeKalb County, 923 F.2d 1482, 1486 (11th Cir.
. 42 U.S.C. � 1983 was
amended in 1996 to provide judicial officers with immunity from injunctive
relief.� This amendment partially
overruled Pulliam v. Allen, 466 U.S. 522 (1984), which provided that
judges were immune from suits for damages, but not injunctive relief.
. Prosecutors are
entitled to immunity for activities that are "intimately associated with
the judicial phase of the criminal process," but a prosecutor engaged in
investigative or administrative activities is only entitled to a good faith
defense.� Imbler v. Pachtman, 424
U.S. 409, 430 (1976).� See also, Kalina
v. Fletcher, 522 U.S. 118 (1997).
. Board of Regents v.
Tomanio, 446 U.S. 478, 483 (1980).
. Wilson v. Garcia,
471 U.S. 261 (1985).� But accrual of the
statute of limitations is governed by federal law, while tolling of the statute
of limitations is governed by state law.�
Mullinax v. McElhenney, 817 F.2d 711, 716 n.2 (11th Cir.
1987).� See also, Hardin v.
Straub, 490 U.S. 536 (1989); Owens v. Okure, 488 U.S. 235 (1989).
. One who recovers
nominal damages is not a prevailing party.�
Farrar v. Hobby, 506 U.S. 103, 114 (1992).� The Court reasoned that the most critical
factor in determining the reasonableness of a fee award is the degree of
success obtained.� Id. at 114
(citing Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)).� Also, see Marek v. Chesny, 473 U.S. 1
(1985), for a discussion of the interplay between 42 U.S.C. � 1988 and the
offer of judgment provision contained in Fed.R.Civ.P 68.
Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978).