Entries categorized "42 U.S.C. Section 1983 (Procedure)"

No Federal Forum for Takings Cases (Or, Land Use and Quantum Physics)

Under 42 U.S.C. Sec. 1983, a citizen whose federal rights have been violated has a federal cause of action.  Federal courts have jurisdiction over Section 1983 cases under 28 U.S.C. Secs. 1331 (general federal question) and 1343 (conferring federal jurisdiction over certain civil rights cases).

The right to not have one's property taken absent a "public use," and to be paid "just compensation" are protected under the Fifth Amendment's Taking Clause, which has been incorporated against the states.  Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239  (1897) ("[C]ompensation for private property taken for public uses constitutes an essential element in 'due process of law[].'") Thus, a landowner whose property is taken should be able to sue in federal court, right?

Wrong.  If you thought courts strained the law in criminal cases, well, you ain't seen nothing yet.

In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), the Court held that a Section 1983 action arising under violations of the Takings Clause could not litigated in federal court until it had been litigated in state court. (!)  In short, a case wasn't ripe until just compensation had been denied.  Whether this was a bad principle, since it imposed a de facto exhaustion requirement on landowners, is an issue for for another day.  Anyhow, landowners took Williamson County in stride.

Landowners said, "Fine.  We'll litigate some issues in state court, but save the Section 1983 issues for federal court.  We want our federal forum, so we'll play your unfair game if that's what it takes to get there."  Yesterday the Supreme Court answered, "You can't do this, either."

In San Remo Hotel v. City and County of San Francisco, No. 04-340 (U.S. Jun. 20, 2005), the Supreme Court held that issue preclusion prevents one from bringing a Section 1983 action after he has brought a state court action alleging his property had been taken, or that just compensation had not been paid. In other words, you can't file a takings case in federal court until you file in state court.  But since you litigated your case in state could, you can't file it in federal court.  If you are confused, then you are comprehending San Remo, and land use litigation in general.

But let's try to figure this out.  Here's a summary of the law:

1.  You have a federal forum for constitutional rights violations.
2.  Taking property absent a public use, or denying just compensation, is unconstitutional.
3.  You don't have a federal forum for Takings Clause violations until you have sued in state court.
4.  If you sued in state court, you don't have a federal forum.

Dr. Werner Heisenberg once said:

The most difficult problem concerning the use of the language arises in quantum theory. Here we have at first no simple guide for correlating the mathematical symbols with concepts of ordinary language: and the only thing we know from the start is the fact that our common concepts cannot be applied to the structure of the atoms.

The same could be said of the Supreme Court's takings litigation jurisprudence.


Sexual Predators, Sec. 1983, and Habeas Corpus

Huftile was civilly committed under California's Sexually Violent Predator Act after a jury found beyond a reasonable doubt that he was a violent sexual predator.  Huftile sued under 42 U.S.C. Sec. 1983, alleging that the procedures the psychologist used when testifying that Huftile should be committed were invalid.  The issue is whether Heck v. Humphrey bars his suit.  Huftile v. Miccio-Fonseca, No 03-16734 (9th Cir. Jun 10, 2005) (via AL&P).  (By the way, Wilkinson v. Dotson doesn't apply, since Huftile's arguments, namely that the procedures used to confine him were unconstitutional, go to the "fact" of confinement.  Wilkinson v. Dotson does not disturb Heck's rule that one can not litigate, in a Sec. 1983 claim, matters that go to the fact (re: evidentiary basis) of one's confinement.)

Huftile argued that Heck v. Humphrey only applied to prisoners.  This was a good point.  Despite the Ex Post Facto Clause, courts have allowed people who have already been convicted and served their sentences for certain sex-based crimes to nonetheless be returned to prison based on the same conduct.  The fiction is that the commitment is civil, not criminal, and therefore the Ex Post Facto Clause isn't violated.  But the Ninth Circuit panel here doesn't want to treat the fiction as a fiction: they treat Huftile's confinement as half-truth, half-fiction.

Thus, the panel held that the policies behind Heck v. Humphrey applied - and barred - Huftile's suit.

In fairness, the panel holds that Huftile may seek habeas relief.  In other words, Huftile wasn't convicted, and is not a prisoner (since so holding would mean his confinement would violate the ex post facto prohibition), but he can still seek habeas relief.

Putting aside the civil-criminal distinction, it was a balanced outcome.  Though it illustrates the obstacles (rightly or wrongly) sex offenders meet even in courts of law.  Don't get me wrong: I'm no sexual predator apologist.  But if we want them out of society, the solution is longer confinement, not to create legal fictions that are blatant end-runs around the Constitution, and that only apply when it can be used against the predator.


Section 1988(b) Attorney's Fees

It's black letter law that a trial court's awarding (or not) of attorney's fees is subject to an abuse of discretion standard of review.  Thus, Thomas of City of Tacoma, No. 03-35799 (9th Cir. Jun. 8, 2005) seems unremarkable.  Why would the Ninth Circuit choose to publish a case discussing 1988(b)?  The answer, I think, is that they wanted to clarify standards of review:

Awards of attorney’s fees are generally reviewed for an abuse of discretion. Watson v. County of Riverside (CA9 2005).  However, we only arrive at discretionary review if we are satisfied that the correct legal standard was applied and that none of the district court’s findings of fact were clearly erroneous. Ferland v. Conrad Credit Corp. (CA9 2001). If the parties contend the district court made a legal error in determining the fee award, then de novo review is required. Hall v. Bolger (CA9 1985) (“[A]ny elements of legal analysis and statutory interpretation which figure in the district court’s decision are reviewable de novo.”). All factual findings are reviewed for clear error. Fischer v. SJB-P.D. Inc. (CA9 2000).

Slip op. at 6591-6592.  These hyper-technical distinctions on what standard of review will govern are not just extremely important: they're dispositive. 

In this case, e.g., the trial court refused to award attorney's fees to plaintiff's counsel even though his client was awarded $15,000 in actual, and $20,000 in punitive damages.  Refusing to award attorneys fees is such a situation is not per se an abuse of discretion.  But the Ninth Circuit nonetheless reversed the court's order because the trial court made an error of law when denying the plaintiff's request for attorney's fees.

In denying Plaintiff’s request for fees, the district court concluded that granting an award of attorney’s fees to Plaintiff would be unjust because doing so would “result in a windfall.” In support of this finding, the district court reasoned that “any outside observer would easily conclude that [Plaintiff] did not obtain what [he] sought in this case” as he only prevailed on one of his many claims.  As legal support, the district court relied on Farrar v. Hobby, (U.S. 1992), which recognized that there are occasions when a prevailing party’s reasonable fee is no fee at all.

Id. at 6593.  In Farrar, an attorney filed a huge lawsuit on behalf of his client, seeking millions of dollars and a bunch of other funky relief.  The lawsuit was, at best, overzealous.  Still, the jury awarded nominal damages; yet the trial court denied his fee application.  Weighing “the extent of relief given” with the relief sought, “the significance of the legal issue on which the plaintiff prevailed," and the “public purpose served” by the litigation, the Court affirmed.

Unlike in Farrar, here the plaintiff was awarded significant damages.  (Huge verdicts are rare in civil rights cases.)  Thus, the district court's reliance on Farrar was legal error, and was therefore subject to de novo review.

The practice tip, care of Judge McKay is this:  Commit the trial court to a legal basis for awarding attorney's fees.  Then, on appeal, show that the judge's actions were incorrect, not as a factual matter, but because he or she improperly applied the law. 

The added benefit is that counsel making this argument can say, "The judge made a legal error," instead of, "This judge abused his discretion."  Even appellate courts recognize that judges can make legal errors.  But few appellate courts consider their brothers and sisters of the bench capable of behaving unreasonably or unfairly.  See, e.g., How Appellate Courts Admonish Trial Courts, and Why You Should Listen.


PLRA Exhaustion and Pleading

Today the Fourth Circuit, in a well-reasoned and informative opinion, held that the PLRA does not impose a heightened pleading requirement on civil rights plaintiffs.

[W]e conclude that the PLRA’s exhaustion-of-remedies requirement does not impose a heightened pleading obligation on an inmate. Instead, an inmate’s failure to exhaust administrative remedies is an affirmative defense to be pleaded and proven by the defendant. That exhaustion is an affirmative defense, however, does not preclude the district court from dismissing a complaint where the failure to exhaust is apparent from the face of the complaint, nor does it preclude the district court from inquiring on its own motion into whether the inmate exhausted all administrative remedies.

Anderson v. XYZ Correctional Health Services, No. 04-6886, slip op. at 14 (4th Cir., May 18, 2005). This is in concurrence with the majority of circuits.  I blogged about the Eighth Circuit's similar holding here.


Those Damned 1983 Cases

In holding that heightened pleading requirements would not be required in individual capacity suits, a per curiam panel of the Eight Circuit noted

In rejecting a heightened pleading requirement, however, we do not leave government officials and the district courts “at the mercy of overly aggressive plaintiffs.” Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 67 (1st Cir. 2004). The district courts retain all tools available under the Federal Rules of Civil Procedure to eliminate meritless claims early in the litigation process. For example, the district court can order the plaintiff to reply to the defendant’s answer under Rule 7(a), order the plaintiff to delineate independent causes of actions against individual defendants under Rule 10(b), order the plaintiff to provide a more definitive statement under Rule 12(e), or tailor discovery to protect the defendants from unnecessary embarrassment or undue burden under Rule 26(c). See id. The district court also retains the power to sanction plaintiffs who file frivolous claims under Rule 11. In appropriate cases, plaintiffs that fail to comply with the district court’s orders face dismissal under Rule 41(b).

Wow.  That's so condescending that I need not editorialize.


PLRA Exhaustion and Procedural Default

Does the Prison Litigation Reform Act's requirement that administrative remedies be exhausted also require that a prisoner not procedurally default his administrative remedies?  No. 

Procedural default is not an inextricable element of the PLRA’s exhaustion requirement. If it were, prisoners’ access to courts would be based on their ability to navigate procedural minefields, not on whether their claims had any merit. Moreover, prison administrators should not be given an incentive to fashion grievance procedures which prevent or even defeat prisoners’ meritorious claims.

Ngo v. Woodford, No. 03-16041 (9th Cir. Mar. 24, 2005). There is now a major circuit split, and this one going upstairs.  It's upsetting, because Steven Dillard is litiging this current issue in the Eleventh Circuit, and I had hoped he would get the circuit split.  Then again, if the Court does not grant cert., then they certainly will once the Eleventh Circuit has passed on the issue.  You can read Steve's brief here.


PLRA Exhaustion

A small but important point on the Prison Litigation Reform Act.  Today the CA8 held that the PLRA does not create a heightened pleading requirement.  That is, the plaintiff is not required to plead exhaustion of administrative remedies.  Nerness v. Johnson, No. 04-2679 (8th Cir. Mar. 18, 2005).  Nerness also affirmed an old point -- Even if a plaintiff's injuries are suffered while in prison, his claim is not subject to the PLRA if he sues when not a prisoner, i.e., after being released from prison.


Wilkinson v. Dotson - Practical Effect

What will Wilkinson mean?  Professor Berman wants to know: Will "Dotson ...  bring a new wave of § 1983 litigation."  I'd love to hear Norm's answer.  Here's mine -- In a word, yes.

Before Wilkinson v. Dotson, parole procedures were almost unreviewable.  The parole board usually stamped a big bold "DENIED" on the application.  There wasn't much resource for the prisoner, other than to wait patiently for another hearing.  Most people thought there was little to do.  Indeed, the ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.

My reading of Wilkinson  is that the full panoply of constitutional challenges are available to the prisoner.  So long as the prisoner styles his action as one for limited declaratory and injunctive relief, the section 1983 action will lie.  What do I mean by limited?

The prisoner can not ask that the parole board's findings be overturned.  But he can now get a declaratory judgment from a judge stating that the parole procedures were invalid.  And thus, the prisoner would be entitled to a new hearing.  However, the judge can not rule: "Therefore, the prisoner should be granted parole [his sentence is reduced]."  The issue is one of procedure

The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons (holding that 1983 plaintiff must face imminent injury from unconstitutional practice to meet Article III case or controversy requirement), the prisoner could invalidate a parole board's procedures before facing the parole board.

Of course, please don't forget about the PLRA!

Of course, we can not read Wilkinson  in a vacuum.  The contours of the constitutional rights, if any, available before the parole board are yet to be drawn.  But post-Wilkinson, lawyers as artists can start painting them.

A law student looking for a pro bono project should volunteer to help prisoner's file 1983 actions to ensure that parole procedures are constitutional.  It will be rewarding and educational.


Wilkinson v. Dotson

Today the Supreme Court issued an 8-1 opinion in Wilkinson v. Dotson, No. 03-287 (U.S. Mar. 7, 2005).  Justice Breyer authored the opinion and set up the case:

Two state prisoners brought an action under 42 U. S. C. §1983 claiming that Ohio’s state parole procedures violate the Federal Constitution. The prisoners seek declaratory and injunctive relief. The question before us is whether they may bring such an action under Rev. Stat. §1979, 42 U. S. C. §1983, the Civil Rights Act of 1871, or whether they must instead seek relief exclusively under the federal habeas corpus statutes. We conclude that these actions may be brought under §1983.

Some background.
Under Heck v. Humphrey, a state prisoner may not bring a §1983 action challenging "the fact or duration" of his confinement.  A state prisoner can't sue the police for violating his Fourth Amendment rights, e.g., his right to be free from unreasonable searches, if that goes to the "fact" of his confinement.  It goes towards the fact of his confinement if the improperly seized evidence was used to convict him.  The Heck v. Humphrey  rule requires the prisoner to litigate his issue in a habeas proceeding.

The Heck v. Humphrey  bar is absolute.  As Justice Breyer notes in Wilkinson:

[A] state prisoner’s §1983 action is barred (absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action would necessarily demonstrate the invalidity of confinement or its duration.

Slip op. at 7.  Although the "fact" aspect of Heck is easy to understand, the "duration" prong is somewhat difficult to wrap one's mind around.  For example, what if a prisoner sues prison administrators for depriving him, without due process, of the property interest in his good-time credits?

The lawsuit doesn't go to duration the way directly attacking the state sentencing court's judgment does.  Indeed, the prisoner would argue that he's suing to vindicate a property right.  Alas, his claim touches duration, since a court would, by restoring good time credits, be shortening the prisoner's sentence.  See Preiser v. RodriguezPreiser gave a rule tough for some to accept, but it was easy enough to understand.

Then in Wolff v. McDonnell, the Court decided to confuse me.  Here is Justice Breyer, in Wilkinson, describing the holding of Wolff:

[In Wolff the Court held that] the inmates could use §1983 to obtain a declaration (as a predicate to their requested damages award) that the disciplinary procedures were invalid. They could also seek by way of ancillary relief, an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.  In neither case would victory for the prisoners necessarily have meant immediate release or a shorter period of incarceration; the prisoners attacked only the wrong procedures, not . . . the wrong result (i.e., the denial of good-time credits).

Slip op. at 5 (citations and quotation marks omitted).  Not content to merely confuse me, the Court in Edwards v. Balisok  later held, according to Justice Breyer:

[H]abeas was the sole vehicle for the inmate's constitutional challenge insofar as the prisoner sought declaratory relief and money damages, because the principal procedural defect complained of, namely deceit and bias on the part of the decisionmaker, would, if established, necessarily imply the invalidity of the deprivationof Balisok's good-time credits.  Hence, success on the prisoner’s claim for money damages (and the accompanying claim for declaratory relief) would necessarily imply the invalidity of the punishment imposed. Nonetheless, the prisoner’s claim for an injunction barring future unconstitutional procedures did not fall within habeas’ exclusive domain. That is because ordinarily, a prayer for such prospective relief will not necessarily imply the invalidity of a previous loss of good-time credits.

Id. at 5-6.  Now comes the facts of Wilkinson.

In Wilkinson two state prisoners are challenging parole procedures under the Due Process and Ex Post Facto clauses.  The parole procedures, if changed by the Court, would affect the time the prisoners would spend in prison.  Seems like it would fall under the "duration" element of Heck, no?

Well, no.  Justice Breyer wrote:

Applying [Heck, Wolff, Preiser, Balisok] to the present case, we conclude that respondents' claims are cognizable under §1983, i.e., they do not fall within the implicit habeas exception. Dotson and Johnson seek relief that will render invalid the state procedures used to deny parole eligibility (Dotson) and parole suitability (Johnson).  Neither respondent seeks an injunction ordering his immediate or speedier release into the community. And as in Wolff, a favorable judgment will not necessarily imply the invalidity of their convictions or sentence.  Success for Dotson does not mean immediate release from confinement or a shorter stay in prison; it means at most new eligibility review, which at most will speed consideration of a new parole application.  Success for Johnson means at most a new parole hearing at which Ohio parole authorities may, in their discretion, decline to shorten his prison term.

Wilkinson at *7.  In other words, the remedial tail will wag the Heck dog.

UPDATE: What will Wilkinson mean?  Professor Berman wants to know: Will "Dotson ...  bring a new wave of §1983 litigation."  I'd love to hear Norm's answer.  Here's mine -- In a word, yes.

Before Wilkinson v. Dotson, parole procedures were almost unreviewable.  The parole board usually stamped a big bold "DENIED" on the application.  There wasn't much recourse for the prisoner, other than to wait patiently for another hearing.  Most people thought there was little to do.  Indeed, the ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.

My reading of Wilkinson  is that the full panoply of constitutional challenges are available to the prisoner.  So long as the prisoner styles his action as one for limited declaratory and injunctive relief, the section 1983 action will lie.  What do I mean by limited?

The prisoner can not ask that the parole board's findings be overturned.  But he can now get a declaratory judgment from a judge stating that the parole procedures were invalid.  And thus, the prisoner would be entitled to a new hearing.  However, the judge can not rule: "Therefore, the prisoner should be granted parole [his sentence must be reduced]."  The issue is one of procedure

The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons (holding that 1983 plaintiff must face imminent injury from unconstitutional practice to meet Article III case or controversy requirement), the prisoner could invalidate a parole board's procedures before facing the parole board. Of course, please don't forget about the PLRA!

And we can not read Wilkinson  in a vacuum.  The contours of the constitutional rights, if any, available before parole boards are yet to be drawn.  But post-Wilkinson, lawyers as artists can start painting them.

A law student looking for a pro bono project should volunteer to help prisoner's file 1983 actions to ensure that parole procedures are constitutional.  It will be rewarding and educational.

Continue reading "Wilkinson v. Dotson" »


Facts required in policy or custom Complaint

A former patient sued a private hospital (sued under a conspiracy theory of state action) alleging that it violated her Fourth Amendment rights. However, she did not state any facts in her Complaint showing the hospital had a policy or custom of rights violations. Her complaint was properly dismissed. Crumpley-Patterson v. Trinity Lutheran, No. 03-3499 (8th Cir., Nov. 2, 2004).

Citing Doe v. School District of Norfolk, 340 F.3d at 613, Patterson argues she was not required to show, at this juncture, the existence of such a practice or custom because those facts may have been developed during discovery. The argument misses the mark. The district court dismissed the complaint because Patterson failed to include any allegations suggesting the existence of an unconstitutional practice or custom. On appeal, Patterson has again failed to allege the existence of an unconstitutional practice or custom and at oral argument conceded the absence of any such allegations in the complaint.

The panel graciously tells the plaintiff's lawyer what should have been alleged:

A corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). The test is whether there exists a policy, custom or action by those who represent official policy which inflicts an injury actionable under § 1983. Id. at 694. In other words, to prove a policy, custom or action, Patterson must show "a continuing, widespread, persistent pattern of unconstitutional misconduct" by Trinity's employees; "[d]eliberate indifference to or tacit authorization of such conduct by [Trinity's] policymaking officials after notice to the officials of that misconduct;" and she "was injured by acts pursuant to [Trinity's] custom, i.e., that the custom was the moving force behind the constitutional violation." S.J. v. Kansas City Mo. Pub. Sch. Dist., 294 F.3d 1025, 1028 (8th Cir. 2002) (internal quotations and citations omitted).