Private Acts Done Under Color of State Law

When can a private party be said to have acted under color of law? In Dossett v. First State Bank, No. 03-2624 (8th Cir. Feb. 28, 2005) (holding that a private bank can be held liable under Section 1983 for firing an at-will employee at the behest of a state actor), the panel provided a helpful rule statement. I'm keeping the citations contained therein for ease of reference.

“The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). At the same time, however, the Supreme Court has made clear that even the “[m]isuse of power” possessed by virtue of state law is action taken “under color of state law.” Classic, 313 U.S. at 326. Thus, “under ‘color’ of law” means “under ‘pretense’ of law,” and “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” Screws v. United States, 325 U.S. 91, 111 (1945) (plurality opinion) (emphasis added); accord id. at 115-16 (Rutledge, J., concurring in the result). Applying these principles, the Supreme Court in Adickes held that the involvement of a police officer in a conspiracy to deprive a citizen of equal protection of the laws “plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful.” 398 U.S. at 152 (emphasis added). That is not to say that every action of a school official is under color of law simply because the official is a public employee. “[A]cts of officers in the ambit of their personal pursuits are plainly excluded,” Screws, 325 U.S. at 111, so exhortations or agreements by a bank customer who also happens to be a school official do not necessarily constitute actions under color of law. But on the other hand, the mere fact that a school official also has a personal account at the Bank does not mean that the official’s interactions with the Bank are exempt from scrutiny under § 1983. “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West, 487 U.S. at 50. Hence, as noted, one of the fighting issues in this case has been whether school officials acted in their personal or official capacities when communicating with the Bank about Dossett.

The challenged jury instruction unduly narrowed the official capacity or “under color of law” side of this equation. If the jury believed that a school official, purporting to act in the performance of official duties, sought an agreement with the Bank to terminate Dossett in retaliation for the exercise of her First Amendment rights, but the jury believed that the school official’s actions were both unauthorized and beyond those the Bank reasonably believed were authorized by the School District, then the jury was directed to find that the school official was not acting under color of law. This is not a correct application of the law. Just as a police officer conspiring to obtain a search warrant based on false evidence, see Mark v. Furay, 769 F.2d 1266, 1273-74 (7th Cir. 1985), or a judge agreeing to issue an injunction in exchange for a bribe, Sparks, 449 U.S. at 26-28 & n.5, may act under color of law despite exceeding his actual and apparent authority as defined in these instructions, a school official reaching a mutual understanding with a private actor to retaliate against a private citizen for questioning the work of the school board may do the same.

Slip op. at 11-12.

Due Process Rights of Non-custodial Parents

What liberty interest, if any, do non-custodial parents have in the care, upbringing, and education of their children? Today a 2-1 panel handed down an interesting decision interpreting - and perhaps narrowing - the due process rights of non-custodial parents. Crowley v. McKinney, No. 02-3741 (7th Cir. Mar. 11, 2005).

In Crowley, a non-custodial parent sued school officials for, inter alia, not providing him access to his childrens' educational records. He sued under the parents' rights line of cases (Meyer, Pierce, Yoder), arguing that the schools' denying him access to his childrens' school records and refusing to allow parent-teacher conferences violated his substantive due process right to raise his children. In dismissing the father's claim, the panel distinguished the Meyer/Pierce/Yoder line of cases:

[T]hose cases are remote from the present case in two pertinent respects. They are about a state’s right to deny, in effect, the option of private education, a denial that is a greater intrusion on parental control of their children than limiting parents’ involvement in the activities of the public school that their children attend. And they concern the rights of parents acting together rather than about the rights retained by a divorced parent whose ex-spouse has sole custody of the children and has not joined in the noncustodial parent’s claim. In both respects the parental claim in this case is weaker. It is weaker because the challenge is to only one parent’s control, the other’s remaining unimpaired. It is also weaker because the state interest is stronger. Nebraska’s interest in forbidding private schools to teach foreign languages was tenuous to the point of weirdness, while Oregon’s project of forcing all children to attend public schools implied a hostility to private education that had no footing in American traditions or educational policy. Quite apart from parental interests, the statist character and conformist consequences of giving the state a monopoly of education sapped Oregon’s policy of constitutional weight.

Slip op. at 5. Moreover, the panel suggested that the rights, if any, of non-custodial parents are more analagous to to those of grandparents:

The distinction is illuminated by cases that discuss other aspects of parents’ constitutional rights. Troxel v. Granville, 530 U.S. 57, 65-73 (2000), invalidated a state law that conferred broad discretion on the state’s courts to override a custodial parent’s wish to limit (not eliminate) visits by her children’s grandparents. The case has a dual significance for the present case. First, it recognizes that one aspect of the parental right is a right against other relatives—a right to prevent a tug of war over the children—in this case Mrs. Crowley’s right to decide what school the children shall attend. Second, it suggests the strength that the parental interest must attain to achieve constitutional status. At stake in Troxel was Mrs. Granville’s control of her children, contested by the grandparents and the court that sided with them. At stake in Santosky v. Kramer, 455 U.S. 745 (1982), another case in which a state law was invalidated as an infringement of parental liberty, was the parental right itself. See also Stanley v. Illinois, 405 U.S. 645, 646-52 (1972). At stake in the present case is the slighter interest of Mr. Crowley in micromanaging his children’s education at the school properly chosen for them.

Id. at *10. Thus, the panel held that: [W]e greatly doubt that a noncustodial divorced parent has a federal constitutional right to participate in his children’s education at the level of detail claimed by the plaintiff." Id.

Judge Wood dissented:

This case is about a father’s constitutional right to participate meaningfully in the upbringing of his children. The question, as I see it, is whether the state (in this case through the agency of a local school district and its principal) may effectively terminate a noncustodial father’s parental rights, through measures that deprive him altogether from the most important activity in which children under the age of eighteen engage: their education. The majority sees no federal constitutional dimension in the deprivations that the school district has imposed upon Daniel Crowley, notwithstanding the existence of Supreme Court cases directly recognizing these kinds of parental rights and notwithstanding the fact that its assumptions about the degree to which his parental rights have been circumscribed by virtue of his divorce decree are exaggerated at best, mistaken at worst. Unless we are to create a new exception to cases brought under 42 U.S.C. § 1983 for actions like this that conceivably could be addressed by state family law courts— an action that I believe to be beyond this court’s authority, even if the Supreme Court might choose to take this step some day—Crowley is entitled to proceed on his liberty claims. To the extent that the majority opinion holds otherwise, I dissent. I concur in the majority’s conclusion that Crowley has stated an equal protection claim and a First Amendment claim that must be reinstated, along with his supplemental state claims.

Id. at *14.

Crowley raises several fascinating issues, including standing after Newdow. If a custodial parent demands that a non-custodial parent stay out of his child's life, what effect, if any, would that have on dad's ability to sue for violations of hisliberty interest in raising his children? Remember, here, Mr. Crowley was not suing because he disagreed with the school's curriculum. Rather, he sued because the school was not providing him information he needed to care for and raise his child. Also, do the parental rights trio (Meyer, Pierce, Yoder) protect a non-custodial parent's liberty interest? Is a non-custodial parent similar to a grandparent, and thus, under Troxel, can be told - absent a divorce agreement to the contrary - to leave the children's upbringing to the custodial parent?

Heightened Pleading Rejected in Individual Capacity Suits

Fed. Rule Civ. Pro. 9 imposes a heightened pleading requirement for certain enumerated civil actions. Actions brought under 42 U.S.C. Sec. 1983 are not listed in Rule 9. Thus, in Leatherman v. Tarrant County Narcotics Intelligence & Coordinate Unit, 507 U.S. 163 (1993), the Court abrogated the heightened-pleading requirements lower courts had imposed on section 1983 litigants. Surprisingly, the Eighth Circuit, post-Leatherman, held that heightend-pleading requirements could be imposed in individual capacity suits. See Edginton v. Mo. Dep’t of Corr., 52 F.3d 777 (8th Cir. 1995). That a federal court would impose requirements contradicting the Federal Rules of Civil Procedure indicates the hostility that section 1983 plaintiffs face.

Indeed, the Eighth Circuit imposed this onerous requirement on section 1983 plaintiffs because "particularity in pleadings facilitated the individual government officials’ ability to mount a qualified immunity defense early in the litigation." Doe v. Cassel, No. 04-3581 (8th Cir. Apr. 11, 2005) (citing Edginton, 52 F.3d at 779, n.3). In Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) the Court affirmed Leatherman's holding, writing that any case not enumerated in Rule 9 must only meet Rule 8's short and plain statement requirement.

Thus, in Cassel, the Eighth Circuit abrogated its heightened-pleading rule. Id. at *4 ("We now recognize Edginton’s heightened pleading requirement in § 1983 suits against individual defendants has been abrogated.") In a footnote, the panel noted:

This result is consistent with the circuits that have addressed the issue since Swierkiewicz. See e.g. Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61, 67 (1st Cir. 2004); Alston v. Parker, 363 F.3d 229, 233-235 (3rd Cir. 2004); Phelps v. Kapnolas, 308 F.3d 180, 187 (2nd Cir. 2002); Galbraith v. County of Santa Clara, 307 F. 3d 1119, 1125-26 (9th Cir. 2002); Goad v. Mitchell, 297 F.3d 497, 501-05 (6th Cir. 2002); Higgs v. Carter, 286 F.3d 437, 439 (7th Cir. 2002); Currier v. Doran, 242 F.3d 905, 911-17 (10th Cir. 2001); see also 2 James Wm. Moore et al., Moore’s Federal Practice § 9.10[2], at 9-62-67 (3rd ed. 2004).
Id. at *4, n.3.

Pleading Policy or Custom in Action Against Hospital

A former patient sued a private hospital alleging that it conspired with a state actor to violate her Fourth Amendment rights. However, the plaintiff did not state any facts in her Complaint that would show the hospital had a policy or custom of rights violations. Her Complaint was therefore 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, perhaps as a reminder to future 1983 litigants, reminded counsel 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).

DeShaney's Rule Upheld

Despite police promises of protection, there was no affirmative duty under the 14 Amendment to protect witness in criminal proceeding against criminal defendant. Rivera v. Rhode Island, No. 04-1568 (1st Cir. Mar. 22, 2005). In Rivera, a 15-year old witness to a police shooting said she was too scared to testify. The police promised that they would protect her. They broke that promise, and as a result, she was murdered.

Internal Workings of Government Office is Matter of Public Concern

A prison guard broke the wall of silence, he was harassed, and then constructively discharged. He brought a section 1983 action, alleging that he was fired in retaliation for engaging in protected speech. As a public employee, should his speech be balanced under Pickering and Connick? No. Baron v. Suffolk County Sheriff's Department, No. 03-2718 (1st Cir. Mar. 29, 2005).

The distict court determined at summary judgment that "the internal workings of the Sheriff's Department" were a matter of inherent public concern, and thus found that Baron's speech was protected without engaging in an extended analysis of its form and context. The Department takes issue with this conclusion, arguing that the content of Baron's expression was not a matter of inherent public concern because it dealt exclusively with internal working conditions at the House of Correction. We disagree.

Slip op. at 12-13. The panel distinguished Connick, writing:

Retaliation against officers who breach a code of silence among their colleagues at a county House of Correction implicates the public interest in a way that morale among Assistant District Attorneys does not.

Id. at *15. Thus, the plaintiff's free speech rights need not be balanced against the state's interest in maintaing order and discipline.