Chapter 5.2 Liability Considerations under 42 U.S.C. § 1983

5.2.1    General Considerations

42 U.S.C. § 1983 effectively creates a state or federal cause of action for damages arising out of the acts of state officials that violate an individual’s civil rights while acting under color of state law.  The statute provides:


"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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."


State immunity law will not be construed to insulate the wrongful actions of state authorities with respect to such violations. Congress has waived Eleventh Amendment immunity in this context. 

To establish a claim under 42 U.S.C. § 1983 a plaintiff must prove (1) a violation of a constitutional right, and (2) that the alleged violation was committed by a person acting under color of state law.  West v. Atkins, 487 U.S. 42, 48 (1988).  As noted above, a private entity acting on behalf of the state may be sued under 42 U.S.C. § 1983.

Generally, § 1983 liability will not be imposed where the consequences of state action are too remote to be classified as “state action.”  Thus, the relatives of a person murdered by a paroled offender cannot maintain an action against the state because the acts of parole authorities are too remote; that is, the parole board owed no greater consideration to the victim than to any other member of the public and the offender was not acting as an agent of the state for purposes of federal civil rights liability.  See generally Martinez v. California, 444 U.S. 277 (1980); see also Howlett v. Rose, 496 U.S. 356 (1990) (conduct by persons acting under color of state law which is wrongful under § 1983 cannot be immunized by state law even though the federal cause of action is being asserted in state court.)  However, allegations which do not attribute particular actions to individual defendants are insufficient to constitute the “individualized participation” necessary to state a claim under §1983. See Esnault v. Suthers, 24 Fed. Appx. 854-55 (10th Cir. 2001).  Thus, an offender alleging that defendants collectively detained him without due process and were deliberately indifferent to his rights but failed to identify any particular action to state a claim under 42 U.S.C. § 1983. Grayson v. Kansas, No. 06-2375-KHV, 2007 WL 2994070 (D. Kan. Oct. 12, 2007); see also Sconce v. Interstate Com'n for Adult Offender Supervision, No. CV 08–39–M–DWM–JCL, 2009 WL 579399 (D. Mont. Mar. 5, 2009) Furthermore, the “public duty doctrine” may also insulate state officials from liability where it can be shown that absent statutory intention to the contrary, the duty to enforce statutory law is a duty owed to the public generally, the breach of which is not actionable on behalf of the private person suffering damage.  See Westfarm Assocs. Ltd. Pshp. v. Wash. Suburban Sanitary Comm’n, 66 F.3d 669 (4th Cir. 1995).