This is Part II of our continued discussion of Civil Right Litigation under 42 U.S.C. 1983 as presented at the Lawyers Club of Cincinnati by Paul M. Laufman of Laufman & Napolitano, LLC.

Once I’ve got a client, who do I sue?

1.    Individual liability under section 1983

a.    An individual sued must have actually done something in order to be liable.  Respondeat superior liability is not available under 1983.
b.    A state actor may be indemnified by the government agency for whom he works.  When a prison guard is sued, the prison guard doesn’t pay the damages, the State of Ohio does.

i.    Plaintiff is not allowed to tell the jury this at trial.  (Government indemnification is treated like insurance:  the trial operates in a vacuum that assumes it doesn’t exist.)
ii.    The exception:  If a public employee’s conduct is so egregious, his employer may fire him and then claim that his conduct was outside the scope of his employment.  In that situation, the government may refuse to indemnify him—and an unemployed former government employee may not have sufficient assets to satisfy a judgment.

2.    Suing the government under 1983

a.    Just as an individual cannot be liable just because he supervised someone who violated your client’s rights, neither can a political subdivision.
b.    Policy and practice claims:  the government sued must have a policy, practice, or custom that is the “moving force” behind the deprivation of your client’s constitutional rights.  This is called a “Monell claim.”  Monell v. City of New York Dept. of Social Services, 436 U.S. 658 (1978).

I’ve got a client.  I’ve found a defendant.  Now what?

1.      Investigate the claim.  In Ohio, many records in government care are subject to disclosure under the Public Records Act, R.C. 149.43.  The statute requires production in a reasonable time (depending on the request, one to two weeks).  Attorney fees are available against public records custodians who wrongly fail to disclosure public records on demand.

2.      Draft a complaint.  But be careful:  the federal “notice pleading” standard is more burdensome than it used to be.  Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).

3.    Gather enough evidence to survive summary judgment.  But remember that even your client’s affidavit is enough to create a genuine issue of material fact.  Harris v. J.B. Robinson Jewelers, 627 F.3d 235 (6th Cir. 2010).

Join us again next week as we continue our civil rights litigation discussion.