CLAIMS AGAINST PUBLIC ENTITIES

AND OFFICIALS
UNDER 42 U.S.C. § 1983

Prepared and Presented by:

John A. Culver, Esq.

Benezra & Culver, P.C.
274 Union Blvd., #220
Lakewood, CO 80228
303/716-0254
[email protected]

Edward T. Ramey, Esq.

Isaacson Rosenbaum, P.C.
1001 17th St., #1800
Denver, CO 80202
303/292-5656
[email protected]
 CLAIMS AGAINST PUBLIC ENTITIES AND OFFICIALS
UNDER 42 U.S.C. § 1983
I. THE PROTECTIONS OF 42 U.S.C. § 1983

Claims1 for violation of the federal constitution (and certain statutory violations)

are brought under 42 U.S.C. § 1983, which is derived from § I of the Civil Rights Act of

1871, and provides that:

Every person who, under color or 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 law, shall be liable to the party injured in an action
at suit, suit in equity, or other proper proceeding for redress. For
the purpose 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.

II. § 1983 DEFENDANTS

A. The State as a § 1983 Defendant.

By its terms, the Eleventh Amendment prohibits the federal courts from granting

both monetary relief (“in law”) and prospective relief (“equity”) against the states.

However, because if construed literally the Eleventh Amendment would prohibit federal

courts from granting injunctive relief requiring the states to conform to the requirements

of the constitution, the U.S. Supreme Court has rejected such a strict interpretation.

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Remedies under § 1983 are broad. All legal and equitable relief is available, including back pay, front
pay, compensatory damages, punitive damages, and attorney fees and costs. Punitive damages,
however, are only available against individual defendants in their individual capacities and not against
governmental organizations, which are immune to punitive damages. (City of Newport v. Fact Concerts,
452 U.S. 247 (1981).)

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 In Ex Parte Young, 209 U.S. 123 (1908), the Court held that the Eleventh

Amendment does not deprive the Federal Courts of the power to require State officials

to comply with the Federal Constitution. Under Young, State officials may be sued in

both their individual and official capacities. Pursuant to an official capacity claim, which

is the same as a claim against the State, the plaintiff may only obtain “prospective

relief.” Prospective relief has been interpreted to include injunctive relief, and in the

employment context, back pay, reinstatement, and sometimes front pay and attorney

fees. (See, e.g., Russell v. Dunston, 896 F.2d 664 (2nd Cir. 1990) (order requiring State

officials to reinstate plaintiff to medical leave status is prospective in nature); Nix v.

Norman, 879 F.2d 429 (8th Cir. 1989) (injunction in form of order requiring defendant to

clear plaintiff‟s employment record of any false allegations of improper behavior is

prospective relief not barred by the Eleventh Amendment); Barnes v. Bosley, 828 F.2d

1253 (8th Cir. 1987) (Eleventh Amendment does not bar prospective award of

reinstatement and payment of salary from date of Court‟s judgment; fact that district

court stayed judgment pending appeal does not change results); Patterson v. Johnson,

787 F.2d 1245 (8th Cir.) (award of salary and other benefits from date to district court

judgment until plaintiff is either reinstated or is awarded damages in lieu of

reinstatement is prospective relief not barred by the Eleventh Amendment), cert. denied,

479 U.S. 828 (1986).)

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 B. Individual Defendants in Their Individual Capacities.

1. Direct Liability.

Section 1983 expressly authorizes the imposition of liability upon a person who

“subjects, or causes to be subjected, any citizen . . . or other person . . . to the

deprivation of any rights” protected by federal law. To be held liable, the individual‟s

conduct must be the proximate cause of the plaintiff‟s injury. (Monell v. Department of

Social Services, 436 U.S. 658, 694 (1978) (conduct must be “the moving force of the

constitutional violation”); City of Canton v. Harris, 109 S.Ct. 1197, 1203 (1989) (must be

a “direct causal link between a municipal policy or custom, and the alleged constitutional

deprivation”; liability may be imposed only when identified training deficiency is “closely

related to the ultimate injury”; plaintiff must show “that the deficiency in training actually

caused” the injury).)

2. Supervisory Liability.

Both governmental entities and individuals may be held responsible under

§ 1983 for the inadequate supervision of constitutional violations. That is so, even

where the supervisor or policy maker with final decision making authority did not

specifically engage in the unconstitutional conduct. However, mere negligence with

respect to constitutional violations will not give rise to supervisor liability for either

municipalities or individuals.

Supervisory officials may be held personally liable for “deliberate indifference” to

the existence of unconstitutional conditions or conduct. (See, e.g., Canton, 109 S.Ct at

1197 (deliberate indifference to training of police officers); Meade v. Grubbs, 841 F.2d

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1512, 1528 (10th Cir. 1988) (sheriff individually liable “for improperly hiring, training,

supervising, and disciplining his deputies”); Anthony v. Baker, 767 F.2d 657 (10th Cir.

1985) (imposing individual liability for supervisor who demonstrated tacit authorization of

unconstitutional conduct and failed to take sufficient remedial action).)

In the employment context, “deliberate indifference” is defined as knowledge and

acquiescence to unconstitutional conduct by subordinate employees. The deliberate

indifference standard may be satisfied “when the municipality has actual or constructive

notice that its action or failure is substantially certain to result in a constitutional

violation, and it consciously and deliberately chooses to disregard the risk of harm.”

(Olsen v. Layton Hills Mall, 312 F.3d 1304, 1318 (10th Cir. 2002); see Woodward v. City

of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992), cert. denied, 113 S.Ct. 3038 (1993)

(recognizing viability of supervisory liability where supervisor knows of illegal sexual

harassment and acquiesces to it), citing Andrews v. City of Philadelphia, 895 F.2d 1469,

1478 (3rd Cir. 1990) (denying qualified immunity defense to supervisors who acquiesced

to acts of sexual harassment); Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir.

1996) (following Woodward and Andrews in evaluating supervisors liability for acts of

sexual harassment by non-supervisory employees).)

Similarly, governmental entities may be held responsible for deliberate

indifference to constitutional violations where it is the governmental entity‟s policy

making officials that have exhibited that deliberate indifference. As the Harris Court

noted:

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 To establish the existence of a governmental custom [of] failure to
receive, investigate or act on complaints of violations of
constitutional rights, a plaintiff must prove: (1) the existence of a
continuing, wide spread, persistent pattern of unconstitutional
misconduct by the governmental entity‟s employees; (2) deliberate
indifference to or tacit authorization of such conduct by
governmental entity‟s policy-making officials after notice to the
officials of the misconduct; and (3) that plaintiff was injured by acts
pursuant to the governmental entity‟s custom, i.e., that the custom
was the moving force behind the constitutional violation.

(831 F.2d at 503.)

However, a pattern of misconduct is not always required. “Although a single

incident generally will not give rise to liability, deliberate indifference may be found

absent a pattern of unconstitutional behavior if a violation of federal rights is a „highly

predictable‟ or „plainly obvious‟ consequence of a municipality‟s action.” (Olsen, 312

F.3d at 1318)(internal citations omitted).)

3. The Qualified Immunity Defense.

Governmental employees who are sued in their individual capacities may be

entitled to qualified immunity. Pursuant to the dictates of the U.S. Supreme Court‟s

decision in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), [g]overnment officials

performing discretionary functions [are generally shielded] . . . from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” The key inquiry

is the “objective reasonableness” of the official‟s conduct in light of the legal rules that

were “clearly established” at the time the action was taken. (See Melton, 879 F.2d at

727; Wulf v. City of Wichita, 883 F.2d 842, 864 (10th Cir. 1989); Considine v. Adams

County, 910 F.2d 695, 702 (10th Cir. 1990).) Qualified immunity for a government

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official is not appropriate where “in the light of pre-existing law, the unlawfulness . . . [is]

apparent.” (See Anderson v. Creighton, 483 U.S. 635 (1987).)

To defeat qualified immunity, the particular action in question need not have

previously been held unlawful. (Anderson, 483 U.S. at 643.) Nor must there even be a

strict factual correspondence between the cases establishing the law and the case at

hand. (Garcia By Garcia v. Miera, 817 F.2d 650, 657 (10th Cir. 1987), cert. denied, 485

U.S. 959 (1988).) Rather, the Tenth Circuit requires only “some but not precise factual

correspondence.” (Id., quoting People of Three Mile Island v. Nuclear Regulatory

Commissioners, 747 F.2d 139, 144 (3rd Cir. 1984). See also Johnson v. Martin, 195

F.3d 1208, 1217-20 (10th Cir. 1999) (“We have never said that there must be a case

presenting the exact fact situation at hand in order to give parties notice of what

constitutes actionable conduct. Instead we merely require the parties to make a

reasonable application of existing law to their own circumstances”).) “It is incumbent

upon governmental officials „to relate established law to analogous factual situations.”

(Garcia, 817 F.2d at 657.)

4. Qualified Immunity and Discovery.

Defendants may attempt to postpone discovery by raising the qualified immunity

defense and seeking a stay of discovery based upon that defense. However, if the

complaint alleges a violation of clearly established law, Defendants will be allowed

discovery concerning, at least, the qualified immunity defense. (See Maxey by Maxey

v. Fulton, 890 F.2d (10th Cir. 1989); Pueblo Neighborhood Health Centers, Inc. v.

Losavio, 847 F.2d 642, 646 (10th Cir. 1988) (“Once the „qualified immunity‟ defense has

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been raised, the court must allow the plaintiff a limited opportunity allowed in

Fed.R.Civ.P. Rules 12(b)(6) and 56 to come forward with facts or allegations sufficient

to show that the defendant‟s alleged conduct violated the law and that the law was

clearly established when the violation occurred”).) Moreover, if the plaintiff has alleged

claims for which the qualified immunity defense is inapplicable, such as claims against

the governmental entity itself or overlapping statutory claims, discovery should be

allowed with respect to those claims, even though they overlap factually. This is so,

because in Maxey, the Court held that “qualified immunity does not shield governmental

officials from all discovery, but only from discovery which is either avoidable or overly

broad.”2 (See Maxey, 890 F.2d at 282, emphasis added).)

5. Interlocutory Appeals.

Courts of Appeal normally have jurisdiction only over final decisions of the District

Courts. (Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Timpanogos

Tribe v. Conway, et al., 286 F.3d 1195, 1199 (10th Cir. 2002) (citing to 29 U.S.C.

§ 1291).) While interlocutory review of certain “collateral orders” may be permitted,

such review is limited to extraordinary circumstances. The Tenth Circuit has noted that

it has “jurisdiction over an extremely narrow class of claims raised interlocutorily. The

collateral order doctrine sets a high bar for any interlocutory appeal . . .” (Timpanogos,

286 F.3d at 1200.)

2
Of course, the qualified immunity defense is not available to the entity defendants, but only to the
individually named defendants. (Owen v. City of Independence, 445 U.S. 622 (1980) (qualified immunity
of City officials is not a defense to the City).)

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 Defendants are entitled to an interlocutory appeal from a trial court‟s denial of a

motion for summary judgment based upon the assertion of qualified immunity or its

failure to rule prior to trial. The filing of a notice of appeal confers jurisdiction on the

court of appeals and divests the district court of its control over those aspects of the

case involved in the appeal. (See, e.g., Griggs v. Provident Consumer Discount Co.,

459 U.S. 56 (1982); Marrese v. American Academy of Orthopedic Surgeons, 470 U.S.

373 (1985); Mitchell v. Forsyth, 473 U.S. 511 (1985) (interlocutory appeal permitted

from denial of qualified immunity defense); Steward v. Donges, 915 F.2d 572, 574-79

(10th Cir. 1990) (same); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir. 1992)

(permitting interlocutory appeal based on Court‟s failure to rule on qualified immunity

defense itself prior to trial); Lowe v. Town of Fairland, Oklahoma, 143 F.3d 1378 (10th

Cir. 1998) (interlocutory appeal from Court‟s failure to rule on qualified immunity

defense prior to trial).)

However, even where the qualified immunity defense is implicated, interlocutory

appeals have been permitted only under limited circumstances.3 For example, in

Johnson, the U.S. Supreme Court held that a district court‟s denial of summary

judgment based on qualified immunity was not immediately appealable where its order

addressed only a question of the sufficiency of the evidence. (Id. at 313.) In Graham v.

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Thus, interlocutory appeals from a collateral order are only permitted where the order: “[1] conclusively
determine[s] the disputed question, [2] resolve[s] an important issue completely separate from the merits
of the action, and [3] [is] effectively unreviewable on appeal from a final judgment.” (Johnson v. Jones,
515 U.S. 304, 310-11 (1995), citing to Cohen, 337 U.S. at 541; Puerto Rico Aqueduct and Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993), quoting Coopers & Lybrand v. Livesay, 437
U.S. 463 (1978).) Additionally, in determining whether to permit an interlocutory appeal, prejudice caused
by undue delay, as well as the unwise use of appellate resources, must be considered. (Johnson, 515
U.S. at 316-17.)

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Gray, 827 F.2d 679, 681-82 (10th Cir. 1987), the Tenth Circuit refused to permit

interlocutory review of an order denying a request to stay discovery based on the

qualified immunity defense, because it was not an appealable final order even under the

collateral order doctrine. (Id. at 682; see also Lugo v. Alvarado, 819 F.2d 5, 7-8 (1st Cir.

1987) (holding that interlocutory review is not available from order refusing to stay

discovery based on qualified immunity)4.)

Moreover, the Tenth Circuit has noted that “[b]ecause the district court is

divested of jurisdiction to proceed to trial by the filing of a notice of interlocutory appeal

raising a double jeopardy or qualified immunity issue, there is the risk that such

interlocutory appeals will be subject to abuse.” (See Steward v. Donges, 915 F.2d 572,

576 (10th Cir. 1990).) In that vein, the Court further warned in U.S. v. Hines, 689 F.2d

934, 936-37 (10th Cir. 1982) that:

The divesture of jurisdiction rule, applicable even when a defendant

files a notice of appeal, should not leave the trial court powerless to
prevent intentional dilatory tactics by enabling a defendant
unilaterally to obtain a continuance at any time prior to trial by
merely filing a motion, however frivolous, and appealing the trial
court‟s denial thereof.

Pursuant to Hines and Steward, the potential misuse of interlocutory review can

be prevented if the district court “(1) after a hearing and (2) for substantial reasons

given, (3) found the claim to be frivolous.” (See Steward, 915 F.2d at 576; Hines, 689

F.2d at 937.) “Upon such a procedure and an explicit finding that the claim raised on

appeal was frivolous, the „district court should not be divested of jurisdiction.‟” (Id.)
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While the Lugo Court refused to rule out the possibility that an interlocutory appeal may be permissible
from a discovery order based on the qualified immunity defense, its example of such a circumstance was
“a § 1983 case for damages only in which the Judge inordinately delays decision on qualified immunity
but allows extensive discovery.” (Id. at 7-8, fn 3.)

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After certification that an interlocutory appeal is frivolous, the case may proceed to trial

while the appeal is pending. (See Langley v. Adams County, 987 F.2d 1473, 1477 (10th

Cir. 1993) (after certification, both the district court and the court of appeals have

jurisdiction to proceed).)

C. Municipalities

A governmental entity may be held liable pursuant to § 1983 for the conduct of

officials “whose acts may fairly be said to represent official policy.” (See Monell v. Dept.

of Social Services, 436 U.S. 658, 694 (1978).) An official policy is (1) a . . . decision that

is officially adopted and promulgated by the municipalities‟ law-making officers or by an

official to whom the law-makers have delegated policy-making authority; or (2) a

persistent wide-spread practice of County officials or employees, which although not

authorized by officially adopted and promulgated policy, is so common and well settled

as to constitute a custom that fairly represents municipal policy. (See Monell, 436 U.S.

at 691; Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984); Bennett v. City of

Slydate, 735 F.2d 861, 862 (5th Cir. 1984) (en banc), cert. denied, 472 U.S. 1016

(1985).)

The key inquiry in determining whether a particular employment decision was

made pursuant to municipal policy is whether the offending official had “final decision

making authority” over the particular subject matter. The answer to that question is to

be found in state or municipal law. (See St. Lewis v. Praprotnik, 108 S.Ct. 915 (1988);

Pembaur v. Cincinnati, 475 U.S. 469 (1986).)

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 Importantly, illegal acts by supervisors or managers who have been delegated

final decision making authority may subject an entity to liability. For example, in Melton

v. Oklahoma City, 879 F.2d 706 (10th Cir. 1989), rev‟d on other grounds at 928 F.2d 920

(10th Cir. 1991) (en banc), the Court held that the City was responsible for the Chief of

Police‟s firing of a police officer where the City Charter gave the City Manager final

policy-making authority over City employment decisions and where the City Manager

approved the firing. The City Manager‟s ratification of the violation brought the City‟s

actions within the realm of municipal liability. (Id. at 725.)

Custom or Practice are typically more difficult to establish. To establish that

conduct was made pursuant to municipal custom, the plaintiff must establish prior

examples of the unconstitutional conduct. Such proof requires proof that the illegal

conduct was repeated. (See, e.g., Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.)

(for a custom or practice to be attributable to a municipality, “it must be so well settled

and wide spread that the policy making officials . . . can be said to have either actual or

constructive knowledge of it yet did nothing to end the practice”), cert. denied, 110 S.Ct.

75 (1989); Harris v. City of Pagedale, 821 F.2d 499, 503 (8th Cir. 1987) (to establish

custom, plaintiffs must prove the existence of a continuing, wide spread, persistent

pattern of unconstitutional misconduct by the governmental entities‟ employees and tacit

authorization of such conduct by the governmental entity‟s policy making officials).)

Additionally, plaintiffs must establish that the unconstitutional custom was the “moving

force” behind the constitutional violation. (See, e.g., City of Canton v. Harris, 109 S.Ct.

1197, 1203-06 (1989) (§ 1983 municipal liability may be imposed when the enforcement

11
of a custom was the “moving force,” “direct causal link,” “closely related,” and “actually

caused” the violation of federally protected rights); ); Dubbs v. Head Start, Inc., 336 F.3d

1194 (10th Cir. 2003)(municipal policy or practice must be the "direct cause" or "moving

force" behind the constitutional violation).)

III. CLAIMS AGAINST THE FEDERAL GOVERNMENT

As a general rule, the doctrine of sovereign immunity prohibits all suits against

the United States unless it has given consent. (See, e.g., Cohens v. Virginia, 19 U.S.

264 (1821); Library of Congress v. Shaw, 478 U.S. 310 (1986); Block v. North Dakota,

461 U.S. 273 (1983).)

However, sovereign immunity ordinarily will not apply in actions for monetary

damages brought against Federal officers and employees in their individual or personal

capacity. (See, e.g., Deutsch v. Federal Bureau of Prisons, 737 F.Supp. 261 (S.D.N.Y.

1990), aff‟d 2nd Cir. N.Y. 1991). While 42 U.S.C. § 1983 does not authorize suit against

the Federal government or its officers and employees in their individual capacity, the

right to bring such a suit and seek monetary damages was recognized as part of the

Federal common law in Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

A plaintiff may establish an actionable Bivens claim when: (1) the plaintiff

asserted a constitutionally-protected right; (2) the plaintiff stated a cause of action that

asserted that right; and (3) relief in the form of damages constituted an appropriate

remedy. (Davis v. Passman, 442 U.S. 228 (1979).)

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 A Bivens action is precluded when: (1) Congress has either statutorily prohibited

the relief sought or provided an alternative and equally effective remedy as a substitute

for recovery directly under the Constitution; or (2) in the absence of such affirmative

action by Congress, there are nonetheless “special factors counseling hesitation.”

(Schweiker v. Chilickey, 487 U.S. 412 (1988).)

IV. CLAIMS FOR PROSPECTIVE RELIEF

A. Factual and legal basis for claim.

Statutory or common law basis (federal or state):

e.g., Title VII, Title IX, ADA, Rehabilitation Act, ADEA, APA, RFRA,
RLUIPA

Constitutional basis:
Federal/state

Limitations and restrictions:

Statute of limitations
Restrictions on jurisdiction
Administrative exhaustion requirements (e.g., grievance process)
Limitations on remedies (e.g., Prison Litigation Reform Act)

B. What relief do we want.

◄ ►
Retrospective Relief Prospective Relief
Damages Declaratory
Equitable restitution Injunctive
[Edelman v. Jordan, 415 U.S. 651 (1974)] Mandamus

C. Jurisdiction – choosing the court.

State court? Federal court?

Exclusive, concurrent, supplemental jurisdiction
Certification of questions of law (C.A.R. 21.1; "Pullman abstention")

D. Prospective claims and Sovereign Immunity issues.

Suing states and state agencies for prospective relief under 42 U.S.C. §1983:

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 Ex Parte Young, 209 U.S. 123 (1908) – as state has sovereign immunity,
creates the fiction of suing state officers (as state has "no power to impart
to him any immunity from responsibility to the supreme authority of the
United States") in their official capacities.

Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) – a state is not a
"person" under 42 U.S.C. §1983, and thus cannot be sued for prospective
(or retrospective) relief. But – "Of course a state official in his or her
official capacity, when sued for injunctive relief, would be a person under
§1983 because 'official-capacity actions for prospective relief are not
treated as actions against the State.' [citation omitted] This distinction of
'commonplace in sovereign immunity doctrine,' . . . [citation omitted]." 491
U.S. at 71, ftn. 10 (emphasis added).

Suing municipalities for prospective relief under 42 U.S.C. §1983:

No sovereign immunity. Directly under 42 U.S.C. §1983 – "in an action at

law, suit in equity, or other proper proceeding for redress . . . ."

Suing federal agencies for prospective relief:

"There is no such animal as a Bivens suit against a public official

tortfeasor in his or her official capacity." Simmat v. U.S. Bureau of
Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005).
but…
". . . as a result of congressional action in 1875 (creating general federal
question jurisdiction), 1962 (extending mandamus jurisdiction to all federal
district courts), and 1976 (waiving sovereign immunity in cases for
nonmonetary relief against federal officials and agencies), federal district
courts now have jurisdiction over claims by federal prisoners against
federal prison officials seeking vindication of their constitutional rights
under either 28 U.S.C. §1331 or 28 U.S.C. §1361, and may obtain relief in
the nature of either injunction or mandamus. In many cases these forms
of relief may be interchangeable." 413 F.3d at 1236. The waiver of
sovereign immunity under 5 U.S.C. §702 "is not limited to suits under the
Administrative Procedure Act." 413 F.3d at 1233.

E. Choosing the "official capacity" defendants.

States and state agencies:

Name the public official responsible for "carrying out" or enforcing the law
or policy being challenged and/or for which an injunction is sought, or the

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 public official with the power to affirmatively remedy the violation – in his
or her "official capacity."
– "John Hickenlooper, in his official capacity as Governor of the
State of Colorado"
– "Tom Clements, in his official capacity as Executive Director of
the Colorado Department of Corrections"
– "Kevin Milyard, in his official capacity as Warden of the Sterling
Correctional Facility"
– "Mitchell R. Morrissey, in his official capacity as District Attorney
for the Second Judicial District, State of Colorado"
In a 42 U.S.C. §1983 action, do not name "State of Colorado" or
"Colorado Department of Corrections"

Municipalities or other non-state-agency governmental actors:

Name the municipality or governmental entity.

– "City and County of Denver"
– "School District No. 1"
– "Board of County Commissioners for Pitkin County, Colorado"
– "Regional Transportation District"

Federal agencies:

May name the agency:

– "Federal Bureau of Prisons"

May name "official capacity" representatives of the agency:

– "Eric H. Holder, Jr., in his official capacity as Attorney General of
the United States"
– "Harley G. Lappin, Director, Federal Bureau of Prisons"

May name "United States of America" - per 5 U.S.C. §702 (not often done)

General practice is to follow 42 U.S.C. §1983 format since judges and

lawyers are used to it

F. Other considerations.

Standing

Ripeness

Mootness

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 Exhaustion of administrative remedies

Fee awards
42 U.S.C. §1988
Prison Litigation Reform Act limitation (PLRA) (42 U.S.C.
§1997e)
Equal Access of Justice Act (EAJA)

Limitations on prospective relief (and consent decrees) in actions involving

prison conditions – PLRA (18 U.S.C. §3626)
– limitations on preliminary injunctive relief
– restrictions on availability of prisoner release orders
(but see, Brown v. Plata, U.S. Supreme Court, 5/23/2011)
– provisions for termination of prospective relief orders

V. PLEADING § 1983 CLAIMS AFTER TWOMBLY/IQBAL

A. Twombly and Iqbal.

Fed.R.Civ.P. 8(a)(2) provides that a Complaint must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” For 50 years, Rules

8(a)(2) and 12(b)(6) were interpreted pursuant to the U.S. Supreme Court‟s decision in

Conley v. Gibson, 355 U.S. 41, 78 (1957), which held that a Complaint could not be

dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of this claim that would entitle him to relief.”

Pursuant to the U.S. Supreme Court‟s recent decisions in Bell Atlantic Corp., et

al. v. Twombly, et al., 127 S.Ct. 1955 (2007), and Ashcroft, et al. v. Iqbal, et al., 129

S.Ct. 1937 (2009), however, the Conley standard has been abandoned and radically

changed.

In Twombly, a case arising under the Sherman Anti-Trust Act, the Supreme

Court held that Conley was no longer good law. (127 S.Ct. at 1967.) The Court then

held that under Rules 8(a)(2) and 12(b)(6), it was insufficient to simply plead the

16
conclusory elements of a claim. (Id. at 1965.) The Court then adopted a “plausibility”

standard for stating a claim under Rule 12(b)(6). (Id. at 1965.) Under that standard, a

Complaint must set forth facts “plausibly suggesting” that the plaintiff is entitled to relief.

(Id.) In that regard, the Court distinguished between factual allegations, which are

relevant to the 12(b)(6) analysis, and mere conclusions that are not. (Id. at 1965.)

Iqbal arose under 42 U.S.C. § 1983. In that case, the Court rejected the

Plaintiff‟s contention that the Twombly decision was limited to the Sherman Anti-Trust

Act and specifically held that Twombly‟s new plausibility standard applied to cases

brought under 42 U.S.C. § 1983 (and, indeed, all Complaints brought in federal court).

B. Critical Citations for Pleading Claims under 42 U.S.C. § 1983.

1. U.S. Supreme Court Authority.

- Bell Atlantic Corp., et al. v. Twombly, et al., 550 U.S. 544 (2007)
- Erickson v. Pardus, 551 U.S. 89 (2007)
- Ashcroft, et al. v. Iqbal, et al., 129 S.Ct. 1937 (2009)

2. Tenth Circuit Decisions.

- Van Zandt v. Oklahoma Department of Human Services, et al.,
276 Fed.Appx. 843 (10th Cir. 2008) (application of
Twombly/Iqbal to qualified immunity defense)
- Bryson v. Gonzales, 534 F.3d 1282 (10th Cir. 2008)
- Robbins, et al. v. Oklahoma, et al., 519 F.3d 1242 (10th Cir.
2008)
- Ridge at Red Hawk, L.L.C. v. Schneider, et al., 493 F.3d 1174
(10th Cir. 2007) (not § 1983 case)
- Alvarado, et al. v. KOVTV, L.L.C., 493 F.3d 1210 (10th Cir.
2007) (not § 1983 case)

3. Tenth Circuit Trial Courts Denying 12b6 Motion after Iqbal (in
whole or in part).
- Kuyper v. Board of County Commissioners of Weld County,
Colorado, 2010 WL 12877534 (D. Colo. 2010) (motion involving
Twombly/Iqbal in qualified immunity defense)
- Asten v. City of Boulder, 2009 WL 2766723 (D. Colo. Aug. 26,
2009)

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 - Bergerud v. Fortunato, 2009 WL 3158154 (D. Colo. Sept. 29,
2009)
- Short v. Trujillo, 2009 WL 2438524 (D. Colo. Aug. 200, 2009)
- Bell v. Turner Recreation Commission, 2009 WL 2914057
(D. Kan. Sept. 8, 2009)

4. Trial Courts Within the Tenth Circuit Granting 12b6 Motions

after Iqbal.
- Sanaah v. Howell, 2009 WL 3273459 (D. Colo. Sept. 14, 2009)
- Carani v. Meisner, 2009 WL 2762719 (D. Colo. Aug. 26, 2009)
- Creamer v. Ellis County Sheriff Department, 2009 WL 1870872
(D. Kan. June 29, 2009)

C. Application of Iqbal and Twombly to Defense Pleadings.

Most Courts have applied Twombly and Iqbal to pleadings in which defendants

assert claims against the plaintiffs in the form of counter-claims, cross-claims, or third

party complaints. (See, e.g., Nesselrotte v. Allegheny Energy, Inc., 2007 WL 3147038

at *2, *6 (W.D. Pa.) (applying Twombly to counter-claims of contract violation and

breach of fiduciary duty); Sun Microsystems, Inc. v. Versotta Enterprises, Inc., 630

F.Supp.2d 395, 404 (D. Del. 2009) (applying Twombly and Iqbal to counter-claim);

Carpenter‟s Health and Welfare Fund of Philadelphia v. Kia Enterprises, Inc., 2009 WL

2152276 at *3 (E.D. Pa.) (applying Iqbal to counter-claim).)

The lower courts are split, however, with respect to whether the pleading

requirements of Twombly and Iqbal apply to affirmative defenses. On the one hand,

some lower courts have refused to adopt a double standard whereby plaintiffs are held

to a heightened pleading standard and defendants are not. (See, e.g., United States v.

Quadrini, 2007 WL 4303213, *4 (E.D. Mich.) (refusing to exempt defendants from

requirements of Twombly in pleading affirmative defenses); Shinew v. Wszola, 2009 WL

1076279, *2-4 (E.D. Mich.) (Id.); Holtzman v. B/E Aerospace, Inc., 2008 WL 2225668,

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*2 (S.D. Fla.) (Id.); In Re Mission Bay Ski and Bike, Inc., 2009 WL 2913438, *6 (Bkrtcy.

N.D. Ill.) (Id.); Tracy v. NVR, Inc., 2009 WL 3153150, *7 and n 13 (W.D.N.Y.) (Id.);

Greenheck Fan Corp. v. Loren Cook Co., 2008 WL 4443805, *1 (W.D. Wis.) (Id.);

Stoffels Ex Rel SBC Telephone Concession Plan v. SBC Communications, Inc., 2008

WL 4391396, *1-2 (W.D. Tex.) (Id.).) However, a number of other lower court decisions

have held that, even post-Iqbal, defendants can plead affirmative defense in conclusory,

fact-free language. (See Holdbrook v. Saia Motor Freight Line, L.L.C., 2010 WL 865380

(D. Colo. 2010) (J. Babcock refusing to apply Twombly/Iqbal to affirmative defenses);

First Nat. Ins. Co. of America v. Camps Services, Ltd., 2009 WL 22861, *2 (E.D. Mich.)

(Twombly is inapplicable to pleading of affirmative defenses); Romantine v. CH2M Hill

Engineers, Inc., 2009 WL 3417469 (W.D. Pa.) (Id.).)

VI. APPENDIX

Amended Complaint, Nathan Acks, et al. v. City and County of Denver, et al.,
Denver District Court, Civil Action No. 09-cv-02197-RPM

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