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A Conference of the Virginia State Bar.

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Your First Section 1983 Action
By Farnaz F. Thompson
 

Knowing who to sue and what relief to request is important in successfully filing or defending an action under 42 U.S.C. § 1983 against state officials. The three legal principles outlined in this article will help you avoid rookie mistakes in filing or defending a § 1983 action against state officials.
 

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must demonstrate that the plaintiff was deprived of a right secured by the United States Constitution or laws of the United States and that the alleged deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49−50 (1999).
 

42 U.S.C. § 1983, states in relevant part:
 

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.
 

Principle 1: A state or a state agency may not be sued under 42 U.S.C. § 1983. A state or state agency is not a “person” under 42 U.S.C. § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65−66 (1989). Additionally, the Eleventh Amendment prohibits any lawsuit against a state or a state agency in federal court for monetary damages unless the state unequivocally waives or Congress unequivocally abrogates the state’s immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 97−99 (1984); Ex Parte Young, 209 U.S. 123, 149 (1908); Cromer v. Brown, 88 F.3d 1315, 1332 (4th  Cir. 1996). Eleventh Amendment immunity is a jurisdictional bar that may be raised at any time during a proceeding, including for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 676−78 (1974).
 

Principle 2: State officials may be sued in their official capacity only for injunctive and not monetary relief under 42 U.S.C. § 1983. An action against a state official in his or her official capacity for monetary damages is considered an action against the official’s office and is the same as an action against the state itself. Will, 491 U.S. at 70−71. Accordingly, a state official sued in his or her official capacity for monetary damages is not a “person” under 42 U.S.C. § 1983. Id. Although state officials may not be sued in their official capacities for monetary damages, state officials may be sued in their official capacities for injunctive relief. Will, 491 U.S. at 71 n.10 (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’” (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985))); Cromer, 88 F.3d at 1332.
 

Principle 3: State officials may be sued in their individual or personal capacity for monetary relief under 42 U.S.C. § 1983. State officials who are sued in their individual capacity under 42 U.S.C. § 1983 may be liable for monetary damages. Graham, 473 U.S. at 167−68; Ridpath v. Bd. of Governors of Marshall Univ., 447 F.3d 292, 306 (4th Cir. 2006). State officials who are sued in their personal capacities for performing discretionary functions are entitled to qualified immunity unless a claim under 42 U.S.C. § 1983 satisfies the following two prongs: (1) “the allegations underlying the claim, if true, substantiate the violation of a federal statutory or constitutional right”; and (2) “this violation was of a ‘clearly established’ right ‘of which a reasonable person would have known.’”  Ridpath, 447 F.3d at 306 (citing Mellen v. Bunting, 327 F.3d 355, 365 (4th Cir. 2003)). The burden of pleading the affirmative defense of qualified immunity lies with the state official who is being sued under 42 U.S.C. § 1983.
 

In summary, a state or state agency may not be sued in a § 1983 action. State officials may be sued in their official capacity for injunctive relief and in their personal capacity for monetary damages. These three legal principles will help you navigate your first § 1983 action.
 

Farnaz F. Thompson is the Secretary of the Virginia State Bar, Young Lawyers Conference Board of Governors. She is an Associate University Counsel at the University of Virginia and Assistant Attorney General at the Office of the Virginia Attorney General. The opinions and views described herein are solely her own and do not represent the opinions or reflect the views of the University of Virginia, Office of the Virginia Attorney General, or Virginia State Bar.