1. Basic Mechanics of a Section 1983 8 th Amendment Action By Jeffrey S. Storms Newmark Storms Law Office

2. What is a cruel and unusual punishment case? Eighth Amendment prohibits cruel and unusual punishment Made applicable to the states through Fourteenth Amendment 42 U.S.C. § 1983 provides private right of action against STATE actors: 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…

3. History of Section 1983 Enacted on April 20, 1871 as part of the Civil Rights Act of 1871 A/K/A Ku Klux Klan Act Primary purpose was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. Litigation increased after: Monroe v. Pape, 365 U.S. 167 (1961) - holding that an officer can act under color of law even when violating it Civil Rights Attorney’s Fees Act of 1976 42 U.S.C. § 1988 – allowing attorneys’ fees for successful prosecution of Section 1983 claim

4. Important Elements of 1983 Claim Are the plaintiffs and defendants “persons” for purposes of Section 1983? Was the defendant acting under “color of law”? Did the defendant violate Plaintiff’s constitutional rights?

5. Who is a “person” who can be sued under Section 1983? A State is not a person who can be sued for damages under Section 1983 Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) No waiver of 11 th Amendment immunity rights A State official can be sued in his “official” capacity for declaratory or injunctive relief Known as the Ex Parte Young doctrine Legal fiction – same as suing the state Comes from concept that there must be a remedy for a wrong

6. Who is a “person” who can be sued under Section 1983? The Federal Government cannot be sued under Section 1983 Local government units are persons who can be sued for damages and prospective (i.e., injunctive or declaratory) relief Individual state and municipal actors can be sued under Section 1983 in their “individual capacity” for both damages and prospective relief ***THIS IS OFTEN OUR BASIC CRUEL AN UNUSUAL PUNISHMENT ACTION*** Federal actors can also be sued in their individual capacity, but not under Section 1983. Creature of federal common law – Bivens action (no attorneys fees)

9. Color of Law Easy requirement when dealing with on-duty officer or prison guard Considered under color of state law even if officer’s actions are unconstitutional or illegal In jail and prison context, important to keep in mind that doctors and nurses who are either municipal employees or work under contract to provide medical services to inmates, are likely state actors

10. Cruel and Unusual Punishment Actions Generally, there are two types of 8 th Amendment violations that are litigated: Use of Excessive Force Conditions of Confinement Claims

11. More Difficult than 4 th Amendment Standard for Excessive Force Fourth Amendment – Graham v. Connor, 490 U.S. 386 (1989) When using force on a person at liberty, the use of force must be objectively reasonable Eight Amendment – Hudson v. McMillian, 503 U.S. 1 (1991), Farmer v. Brennan, 511 U.S. 825 (1994) Prison officials may not use excessive force on prisoners But prisoner must show: (1) the deprivation of rights was sufficiently serious; and (2) the prison officials had a “sufficiently culpable state of mind.” Was the force used in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm?

12. Kingsley v. Hendrickson Did Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), open the door for new 8 th Amendment Standard? The Fourteenth Amendment protects the period of time where a citizen is no longer at liberty but has not yet been convicted of a crime (i.e., a pre-trial detainee) Prior to Supreme Court’s Ruling in Kingsley, circuits were split as to whether the Fourteenth Amendment standard should be an objective or subjective test.

13. Kingsley v. Hendrickson (CTN’D) Supreme Court concluded “that the appropriate standard for a pretrial detainee’s excessive force claim is solely an objective one.” The Court also stated: “We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.”

14. https://www.youtube.com/watch?v=sdpsojnFKC0

15. Conditions of Confinement The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is well-settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. Again, two part test – objective and subjective. In a prison conditions claim, which include threats to an inmate’s health and safety, the subjective inquiry is whether the prison officials were deliberately indifferent to a serious risk of harm to the inmate. See, e.g., Farmer, 511 U.S. at 834.

16. Conditions of Confinement General conditions of confinement E.g., length of sentences, small cells, lack of exercise, mixing of mentally stable and mentally ill inmates Deliberate indifference to serious medical needs Inmate must show that (1) he suffered from objectively serious medical needs, and (2) defendants knew of, but deliberately disregarded, those needs. Estelle v. Gamble, 429 U.S. 97 (1976) Medical malpractice does not amount to 8 th Amendment claim

17. Damages Compensatory (General/Special) Damages Past and future medical bills Past and future lost wages Pain and suffering Mental or emotional distress Punitive Damages Not governed by state pleading standard

18. Qualified Immunity Defense available to municipal and state actors acting in their individual capacities; typically sought at summary judgment stage 1. Did defendant violate a constitutional right? 2. Was that right clearly established? Question of law for the Court Contours of right must be clearly defined to give notice to a reasonable official Right to be free from excessive force is clearly established A court may define the right more narrowly based on the novelty of the situation Plaintiffs want broad right, Defendants want narrow right Common in Taser cases given novelty of situations

19. Direct Causes of Action Against Municipalities Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) – local governments may be sued for unconstitutional policies and customs. Most successful claims involve informal customs, requiring plaintiffs to deliberate indifference to the widespread pattern of unconstitutional conduct – and that the custom was the cause of the injury. Canton v. Harris, 489 U.S. 378 (1989) – failure to train, requiring a showing of “deliberate indifference” to an obvious need for more or different training Similar tests for failure to supervise and inadequate hiring

20. Discovery Considerations Jail Logs Medical Kites Medical Records Inmate Rosters Use of force reports Internal affairs, disciplinary and officer personnel records Prior litigation files Misconduct complaints Prior depositions Videos

21. Fee Petition Keep time by 1/10 Hour – lodestar used Keep detailed descriptions Start keeping time the moment you get the first phone call on the case Get affidavits from local practitioners to support time/rates/success You will get full fees if you do better than nominal damages, no proportionality requirement that has come into play in 1983 D. Minn. has approved time attributed to inter-officer conferences Court may dock fees for: (1) vague billing entries; (2) excessive or redundant billing; (3) low-level tasks completed by high-level billers; (4) failure to succeed on claims