42 U.S.C. §1983: A Brief Overview

In mulling over what to write about in this column, I decided I wanted to submit a piece that would be both informative and helpful to those who read it. I hope that my selection of “42 U.S.C. §1983: A Brief Overview” fits that bill. I offer the ensuing paragraphs not as an attorney or legal scholar, but rather as a former jail administrator who has been a named defendant in a number of “§1983” lawsuits, who has served as an expert consultant/witness in a substantial amount of jail-related “§1983” litigation, and who has served as a University faculty member in Criminology/Criminal Justice. My background in jail operations is likely very much like many of yours, and, in fact, I probably know a number of you and have benefited from those relationships.

Introduction

42 U.S.C. §1983 (Chapter 42, Section §1983 of the United States Code; hereafter §1983) is a federal law which gives any person, including a jail inmate, direct access to the courts if they feel that a government employee (e.g., a jail officer) has deprived them of a right, or multiple rights, guaranteed them by the United States Constitution. While inmates or their representatives always have one or more specific complaints (e.g., inhumane conditions of confinement, use of excessive force, unlawful death), the vehicle by which they are able to bring those complaints to the attention of a court in the form of a civil lawsuit is §1983.

While §1983 lawsuits can be filed in a state court, most are filed in federal courts.

In some instances, the complaining inmate has the assistance of an attorney. Most inmate §1983 lawsuits, however, are filed without the help of an attorney (i.e., are filed pro se).

The vast majority of inmate §1983 lawsuits are dismissed early on. A small percentage, however, survive early dismissal and proceed to settlement or trial.

History of §1983

The United States Congress enacted 42 U.S.C. §1983 in 1871. It was intended to provide additional protection for the newly released slaves in the South following the Civil War.

§1983 lay dormant and essentially unused until the early 1960’s, a period of some 90 years. In the 1960’s, §1983 served as the linchpin for the Civil Rights Movement.

In 1964, in Cooper v. Pate, a case out of the Illinois correctional system, the United States Supreme Court affirmed that §1983 could be used by inmates to access the courts. This, of course, includes jail inmates. The number of §1983 lawsuits filed by jail and prison inmates increased dramatically in the wake of Cooper v. Pate.

Mechanics of a §1983 Lawsuit

An incident occurs (e.g., use of force, sick call, suicide, staff opening of attorney-inmate correspondence). The inmate involved contends that during the incident, a person, or persons, acting in their employment by the government (e.g., jail officer, jail nurse) violated the inmate’s Constitutional rights. If the inmate has died as a result of the incident, a representative of the inmate’s estate will probably register that contention.

The inmate, or the deceased inmate’s representative, files a lawsuit under the authority of §1983. Again, the lawsuit will most likely be filed in a federal court. From this point on, the inmate who filed the §1983 lawsuit is referred to as “plaintiff”, while any person whom the inmate claims violated their Constitutional rights is referred to as “defendant.” The inmate plaintiff may name multiple defendants if the inmate contends that more than one person was involved in violating their Constitutional rights (e.g., more than one jail officer, more than one jail nurse). The list of named defendants may also include the governmental entity within which the alleged Constitutional violation took place (e.g., the county), the head of the agency responsible for the institution within which the alleged violation occurred (e.g., the sheriff), and the administrator of the institution (e.g., the jail commander). The theory behind the inclusion of the latter group of defendants is: Even though they weren’t present when the alleged wrongdoing took place, they are ultimately responsible for the on-duty conduct of all their employees (i.e., vicarious liability). At this point, the inmate probably does not have an attorney. If there are multiple named defendants, they may all be represented by the same attorney, or different defendants may have different attorneys. Defendants’ attorneys are typically drawn from the governmental office that provides legal representation for all employees of the jurisdiction within which the alleged violation occurred (e.g., county attorney’s office) or from private law firms contractually retained by that office.

If the court does not dismiss the lawsuit outright (sua sponte), as is often the case, the defense attorneys will discuss the suit with their defendant clients and review all relevant materials with them (e.g., personnel files, training records, policies and procedures, post orders, incident reports, videos). At this point, the attorneys for the defendant(s) will likely file a motion for summary judgment, asking the court to dismiss the lawsuit as meritless (i.e., failing to state a valid claim of a Constitutional violation). Defense motions for summary judgment are often granted by the court, and the inmate’s §1983 lawsuit proceeds no further.

If the inmate’s lawsuit joins that small percentage of suits that survive both sua sponte dismissal and a defense motion for summary judgment, the litigation proceeds to discovery. If a pro se inmate plaintiff is to acquire the assistance of an attorney, that acquisition will likely occur now. While there is no Constitutional right to an attorney in civil actions, some courts provide inmate plaintiffs with one as a matter of policy. Discovery, the process by which plaintiff and defendant explore each other’s cases, consists of five elements:

1. Interrogatories: Each side submits written questions to the other. The questions are answered under oath.

2. Requests for Production: Each side requests from the other documents it deems relevant to the case. Plaintiffs are particularly active in this phase of discovery, requesting policies and procedures, post orders, incident reports, personal files, investigation reports, medical records, autopsy reports, videos, etc.

3. Requests for Admission: Each side requests the other to withdraw some of its assertions. When successfully pursued, this initiative may simplify and shorten the remainder of the litigation process.

4. Depositions: Each side questions (deposes) persons being used by the other side to strengthen and present their case (e.g., plaintiff inmate’s attorney questions the defendants and their experts; attorney(s) for the defendant(s) question the plaintiff inmate’s experts). The depositions of experts typically focus heavily on the latters’ previously submitted expert reports. Depositions are taken out-of-court (in-person or remotely), are taken under oath, and are transcribed by a court reporter. They may be short in duration, or they may last for hours.

5. Examination of Injuries: If physical or mental health issues are claimed to be involved in the incident at issue (e.g., alleged physical injuries to the inmate plaintiff resulting from the use of force by jail officers), each side will have the opportunity to have their respective physicians or mental health professionals examine the plaintiff.

At this point attorney(s) for the defendant(s) may once again file a motion for summary judgment, this time based upon information obtained through discovery.

Following discovery, should the defendant(s) not file a motion for summary judgment, or should they file such a motion, and it not be granted by the court, the parties may try to negotiate a settlement—thus negating the need for a trial. A mediator may be appointed by the court to assist in this process. Typically, inmate plaintiffs ask for monetary damages and/or changes in institutional policies and practices. Monetary damages are awarded in two forms: compensatory (e.g., compensation for medical expenses incurred by the plaintiff) and punitive (i.e., acknowledgement of malicious or reckless behavior on the part of the defendant(s)). Changes in policies and practices may entail, for example, the implementation of heightened supervision for suicide inmates. Should agreement be reached and an out-of-court settlement be negotiated, it is memorialized in the form of a consent order, prepared by the attorneys for the judge’s signature. That order, as accepted or modified by the judge, is binding on the institution—every bit as binding as an order entered by the court following a jury trial.

Should an out-of-court settlement not be reached, the inmate’s lawsuit proceeds to trial. The opposing attorneys present their arguments and witnesses, including expert witnesses, testify before the judge and a jury. The jury reaches a verdict at the conclusion of the proceedings. If it does not result in the dismissal of the lawsuit, the verdict will, for the most part, address the issues that could not be resolved by an out-of-court settlement—the monetary damages and/or the changes in institutional policies and practices requested by the inmate plaintiff. The verdict, as accepted or modified by the judge, is memorialized in the form of a court order. That order is binding on the institution.

The losing party, plaintiff or defendant, has the option of appealing the order.

Personal Reflections

So, of what relevance is the above discussion to those who administer this Nation’s jails? Specifically, how does one increase the likelihood of prevailing in a §1983 litigation proceeding or of preventing their involvement in a §1983 proceeding in the first place? I offer these thoughts:

· Our inmates carry all their Constitutional rights with them into our jails.

· Jail administrators do not, indeed cannot, cancel those rights. That would require amending the United States Constitution.

· Rather, what jail administrators do is, on occasion, restrict inmates’ exercise of one or more of those rights in the unique environment of that jail.

· In my opinion, the two primary priorities in any jail are: (1) Security (i.e., inmates stay in and contraband is kept out) and (2) Safety (i.e., no one in the facility—inmate, staff, or visitor—is abused, hurt, or killed).

· In my experience, plaintiff attorneys and the courts are generally comfortable with restrictions on the exercise of inmate rights as long as those restrictions are carefully justified in the interest of institutional security and/or safety.

· Two examples might serve to illustrate: (1) the suspension of some religious or recreational programs in the face of a rapidly increasing inmate population and the escalating danger in moving large numbers of inmates to program locations; (2) the opening of an attorney’s correspondence with his inmate client because of a valid suspicion of the inclusion of contraband.

· 42 U.S.C. §1983 should not be seen as an impediment to sound jail management, but rather as an important federal law to be understood and respected within the context of institutional security and safety requirements.

Richard G. Kiekbusch, PhD, retired from his position as Associate Professor of Criminology at the University of Texas Permian Basin. He has run jails in three states—Washington, Virginia, and North Carolina—and continues to provide expert consulting services in jail-related civil litigation. Dr. Kiekbusch is a past president of the American Jail Association (1992-1993) and, in 2019, received the Association’s Francis R. “Dick” Ford Distinguished Service Award. He can be reached at (432) 520-4516 and richardkiekbusch1@gmail.com