8.3 Damage Claims Against Cities and Counties Under Section 1983
Most Section 1983 claims for damages involve suits against government employees who have violated the Constitution, statutes, or their employer’s own stated policies. The boundaries of such claims are discussed in this subchapter.
III.A. The Requirement of a Custom, Policy or Practice
It is well established that allegedly unlawful actions by governmental employees cannot be imputed to the agency, and do not give rise to agency liability under Section 1983, because a city, county, or similar governmental agency is only liable for the deprivation of federal rights caused by its own “custom, policy or practice.” /223/ Monell establishes the principle that the government should only be liable for actions for which it is directly responsible, establishing the parameters of the exception to the common law rule that government should be immune from suit.
III.A.1. No Governmental “Respondeat Superior” Liability
The fact that the state actor was a government employee acting within the scope of his or her employment does not make the government liable for all actions of the employee. Monell clearly rejects respondeat superior liability for government agencies, reasoning that “the touchstone of § 1983 action against a government body is an allegation that official policy is responsible for a deprivation.” /224/ It further held that a governmental “strict liability” rule would run counter to the statutory intent that the agency can be held accountable only when official policy is to blame. Hence, the government entity – as opposed to the individual government employee or agent – is liable only for acts of its employee or agent that stem from a “custom, policy or practice” of the entity, and not from an individual aberration or isolated act, even one committed “under color of law.” /225/
This is generally not an issue when the deprivation of federal rights results from enforcement of a regulation or policy formally adopted by the agency. The problems arise when the source of the policy, or the authority under which it is enforced, is uncertain.
III.A.2. Establishing a “Custom, Policy or Practice” in the Absence of Written Guidelines or Repeated Acts: The Role of the “Final Policy-Making Authority”
Under Section 1983, an unwritten “standard operating procedure” can amount to a “custom, policy or practice” if carried out with the acquiescence of the agency heads./226/ Thus, in Jett v. Dallas Independent School District, which involved an alleged unwritten custom of racial discrimination, the plaintiff could only establish such a policy or practice by proving that agency policy-makers “caused the deprivation of rights at issue by ... acquiescence in a long-standing practice or custom ...” /227/ Under this principle, for example, a housing authority’s custom of permitting friends of its employees to leapfrog the waiting list for vacant units can be actionable under Section 1983 if shown to be so blatant that one can infer that the agency had no objection to it.
To establish a “policy or practice” in the absence of a formal agency rule or guideline will usually require proof of repeated incidents suggesting a pattern or practice. “[T]he scope of § 1983 liability does not permit such liability to be imposed merely on evidence of the wrongful action of a single city employee not authorized to make city policy.” /228/ Nonetheless, a single decision made by the “final policy making authority,” such as the governing body of an agency or one having the power to finally decide on its behalf, can constitute a “policy” under Section 1983. This is because “[t]he ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” /229/
Other cases have similarly held that a decision made by the authority to whom the power to decide has been delegated by a governing body is also “policy.” /230/ State law determines whether a particular person or entity is the “final policy-making authority.” /231/ As a practical matter, this rule means that an unlawful particular policy or practice adopted by a mid-level supervisor in the agency will not make the agency liable. A routine established by a General Assistance unit supervisor or a Section 8 chief housing inspector will not, absent evidence of knowing acquiescence by the highest levels of the agency, constitute a custom, policy or practice sufficient to hold the agency liable.
III.B. Liability for Inadequate Training
Often, however, the problem is with not the “policy” of the agency, but that agency employees are ignorant of the policy. In some circumstances, the agency’s failure to train its employees to comply with agency policy can lead to liability if, as a result of employee ignorance or inadequate training, a plaintiff is deprived of federal rights.
For example, the Supreme Court has ruled that the failure to adequately train police officers to identify prisoners who are injured, or who have serious medical conditions or mental impairments, can result in the deprivation of the prisoner’s Fourteenth Amendment liberty interest in receiving adequate treatment while incarcerated. In City of Canton v. Harris, the court wrote that inadequate training could give rise to liability if:
... in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policy-makers can reasonably be said to have been deliberately indifferent to the need. /232/
While this issue most often arises in the context of damage suits involving incarceration, inadequate training is also relevant to the average legal services practice which routinely encounters chronic problems related to the avoidable ineptitude of social services or housing authority employees. For instance, payment of aid pending an administrative appeal might be the formally adopted policy of the agency, but not afforded in practice. An aggrieved party may be able to challenge the chronic failure of agency employees to provide “aid paid pending” by asserting that the agency has inadequately trained its staff. The result of this inadequacy, after all, has been the temporary deprivation of benefits -- a property interest -- from those entitled to receive them. /233/ If incidents of this type are fairly pervasive, it suggests a de facto “custom or policy” which systematically results in the deprivation of due process. An injured party should accordingly be able to frame her claim in a manner consistent with the parameters set by City of Canton. /234/
Such a claim may also be brought in the education context. In Davis v. Monroe County Board of Education, the Supreme Court applied the “deliberate indifference” standard to a gender discrimination claim under Title IX of the Civil Rights Act and ruled that a primary or secondary school student could hold a school district liable for student on student sexual harassment which continued as a result of the district’s refusal to address the issue despite notice of the persistent problem. /235/
III.C. Good Faith Defenses and the Availability of Punitive Damages
To what extent can a municipality escape liability on the ground that its officials acted in “good faith?” Owen v. City of Independence rejected a claim that an agency – as opposed to an agency employee sued in his or her individual capacity – could claim qualified immunity based on the good faith of its officials./236/ Owen involved the firing of a chief police without notice of the reasons for this action, or a hearing, allegedly in violation of due process. The claim was initially dismissed on the ground that, because the applicability of due process in these circumstances was still “unclear” at the time, and because any government employee defendants sued in their personal capacity would have been entitled to claim qualified immunity, the same should apply to the city. The Supreme Court reversed and ruled that granting a qualified or good faith immunity to a municipality was not compatible with Section 1983's fundamental purpose of remedying violations of federal rights.
The Court reasoned that the danger of intimidation or inhibition – lurking when an individual employee has to act under threat of possible suit – is not present when a municipality or local government agency is sued because these entities can act only through their employees or agents. Hence, granting immunities to government, or to government agents sued in their official capacity for actions resulting from the agency’s custom, policy, or practice, would only undercut the government’s incentive to conform their operational procedures to federal law, or to control its employees. /237/ For this reason, in an official capacity suit, damages can be awarded against a government agency for actions that caused the deprivation of plaintiff’s rights even if these actions were “objectively reasonable.” In the Court’s words:
By creating an express federal remedy, Congress sought to “enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.” How “uniquely amiss” it would be, therefore, if the government itself ... were permitted to disavow liability for the injury it has begotten. ... Moreover, § 1983 was intended not only to provide compensation to the victims of past abuses, but to serve as a deterrent against future constitutional deprivations, as well. ... The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights. Furthermore, the threat that damages might be levied against the city may encourage those in a policymaking position to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights. /238/
In short, if the employee is sued in his or her official capacity and the actions at issue are the result of a custom, policy, or practice, this rule effectively creates a “strict liability” standard for the governmental employer.
On the other hand, governmental defendants are immune from a claim of punitive damages. Punitive damages are available in a Section 1983 action against an individual defendant on a showing of subjective ill will or malice. /239/ However, because the government -- already lacking immunity from awards of actual damages – should not be punished for the actions of rogue employees, punitive damages cannot be awarded against a government agency or municipality under Section 1983. In City of Newport v. Fact Concerts, Inc., the court stated:
Punitive damages ... are not intended to compensate the injured party, but rather to punish the tortfeasor whose wrongful action was intentional or malicious, and to deter him and others from similar extreme conduct ... Regarding retribution, . . . an award of punitive damages against a municipality “punishes” only the taxpayers, who took no part in the commission of the tort . . . /240/
The Court reasoned that it was unclear that an award of punitive damages would deter municipal officials who would not themselves pay the award. Similarly, it was unclear that punitive damages were the most effective method for correcting or deterring similar violations of federal law. /241/
III.D. Municipal Liability for Employees Sued in Official Capacities
Generally, a governmental agency can only act through its employees. Unless they are acting as renegades in violation of agency policy, these employees are merely implementing the entity’s custom, policy, and practice. If the result of these actions is a deprivation of federal rights, both the employee and the agency can be sued. As discussed earlier in this chapter, while an employee may be able to invoke qualified immunity so long as the contours of the federal right were not “clearly established,” /242/ the governmental employer has no such defense. Even if the entity is being sued as a result of a custom, policy, or practice, tactical reasons or pleading rules may require that the individual employee be named as the defendant, rather than the agency itself. For example, a claim for an injunction might name the head of the agency as a defendant in order to hold her or his successor responsible for future compliance with a court order. Nevertheless, as a practical matter, so long as the employee is sued in his or her official capacity, the action lies against the governmental agency. To avoid confusion, it may be useful to contrast “personal capacity” liability with that based on “official capacity.”
A government employee can be sued in his or her personal or official capacity, or both, the distinction being the person or entity that the plaintiff is ultimately holding responsible. The Supreme Court has stated: “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. ... Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’” /243/ The Court explained “[T]he phrase ‘acting in their official capacities’ is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.” /244/ For example, in Hafer v. Melo, involving a state official who had fired state employees because of their political affiliations after taking over a state agency, the actions of the new head of the agency were quintessentially "official.” Nevertheless, after the plaintiffs’ original “official capacity” claim had been dismissed on the ground that any award of damages would, contrary to the Eleventh Amendment, have been paid by the state, the Supreme Court ruled that the official could also be sued in her personal capacity. /245/
In “official capacity” suits, the government agency must comply with the injunction or pay the damage award. In personal capacity suits, the employee is liable, although agency indemnification is the usual practice. However, the fact that the official was on the job when he or she deprived the plaintiff of federal rights does not shield the government agent from personal liability and convert the action into an “official capacity” suit. A welfare worker who unilaterally discontinues the benefits of a Food Stamp recipient without the authority of agency regulations is acting on his own – in his “personal capacity,” and not in an official capacity. By the same token, an employee who terminated a recipient’s benefits by implementing a state regulation can theoretically be sued in his official capacity as well as personal capacity, although it would be better practice to sue the agency and/or the head of the agency, particularly if prospective equitable relief were sought.
223. Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 692 (1978).
225. The policy or practice, moreover, must be that of the entity sued. If the local agency is carrying out a state policy which results in a deprivation, the local entity may escape liability. See, e.g., Surplus Store & Exch. v. City of Delphi, 928 F.2d 788 (7th Cir. 1991).
226. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989).
228. City of Oklahoma City v. Tuttle, 471 U.S. 808, 833 (1985) (Brennan, J., concurring).
229. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (plurality opinion holding that a prosecutor who, having the power to do so, authorizes a forcible entry in violation of the Fourth Amendment creates a “policy”, citing as examples of the principle, Owen v. City of Independence, 445 U.S. 622 (1980) (firing by city counsel allegedly without due process); and City of Newport v. Fact Concerts, 453 U.S. 247 (1981) (cancellation of jazz concert by city council because rock group was booked, in violation of First Amendment)).
230. See Monell, 436 U.S. at 694-95 (policy which required pregnant teachers to take unpaid leaves without affording teachers due process).
231. Thus, in City of St. Louis v. Prapotnik, 485 U.S. 112 (1988) (plurality opinion), the delegation of power to a lower official did not make the official a “policy maker” if final authority still lay elsewhere. In Jett, 491 U.S. at 701, a school principal was found not to necessarily be the final decision maker as to render the district responsible for alleged racial discrimination. Moreover, inaction on the part of the “final policy-maker” in the face of decisions made by subordinates has been found to be an insufficient delegation of decision-making authority. Gillette v. Delaware, 979 F.2d 1342, 1348 (9th Cir. 1992). This situation, involving acquiescence to decisions made by subordinates, can be distinguished from those involving inaction at all levels, which can constitute “policy.”
232. City of Canton v. Harris, 489 U.S. 378, 390 (1989).
233. The advocate should be aware, however, that where a deprivation of property without procedural due process is alleged, other procedural hurdles can arise. See Part III(A)(4), infra. In essence, to overcome the rule that a tort suit couched as a deprivation of due process is not actionable under Section 1983, the plaintiff must show that her injuries evidence a systemic problem which could have been avoided had procedural safeguards been in place. Compare Parratt v. Taylor, 451 U.S. 527 (1981), with Zinermon v. Burch, 494 U.S. 113 (1990).
234. In her concurring opinion in City of Canton, Justice O’Connor wrote that a plaintiff must prove the need for training in one of two ways. “First, a municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. . . Second, . . . municipal liability for failure to train may be proper where it can be shown that policy-makers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. In such cases, the need for training may not be obvious from the outset, but a pattern of constitutional violations could put the municipality on notice that its officers confront the particular situation on a regular basis, and that they often react in a manner contrary to constitutional requirements.” 489 U.S. at 396-97. In Bryan County v. Brown, 520 U.S. 397 (1997), Justice O’Connor’s majority opinion reiterated that liability could not be based on a single incident without effectively undermining the Monell rule barring governmental respondeat superior liability.
Several courts of appeal, in part based on the City of Canton analysis, have found that an agency’s failure to address a problem is a “policy” actionable under Section 1983. Thus, in Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992), involving the 114-day detention of a prisoner because the sheriff somehow lost his file, liability was based on the failure to have adequate safeguards to avoid the situation. See also Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991); Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988) and Ezekwo v. N.Y. City Health & Hosp. Corp, 940 F.2d 775, 784 (2d Cir. 1991) (“standardless grant of authority” or “essentially unrestricted” discretion as “policies” actionable under Section 1983).
235. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999).
236. Owen v. City of Independence, 445 U.S. 622 (1980).
238. Id. at 651-52 (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961) (other citations omitted)).
239. Smith v. Wade, 461 U.S. 30 (1983).
240. Fact Concerts, 453 U.S. at 266-67 (addressing a punitive damages claim in a First Amendment freedom of expression suit challenging a city’s revocation of permits for a music festival because the promoters invited the rock group “Blood, Sweat and Tears.”)
242. See Saucier, 533 U.S. at 201-02. If the governing law was clearly established, the plaintiff would theoretically be entitled to damages from the employee, since the employee would not have qualified immunity. If suit against the government is permissible under the circumstances, it may be unproductive to sue the employee in her personal capacity since (1) the employer is the “deep pocket,” and (2) additional damages, such as punitive damages, are likely to be unavailable from the employee. That the employee was following agency rules probably undermines a claim that the employee possessed the requisite malice or ill will.
243. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell, 436 U.S. at 690, n.55).
244. Hafer v. Melo, 502 U.S. 21 (1991).
Updated 2006