—Elements and Burden of Proof

In order to prevail on [his] [her] § 1983 claim against the defendant [name of individual defendant], the plaintiff must prove each of the following elements by a preponderance of the evidence:

1. the defendant acted under color of state law; and
2. the [act[s]] [failure to act] of the defendant deprived the plaintiff of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions.

            A person acts “under color of state law” when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance or regulation. [[The parties have stipulated] [I instruct you] that the defendant acted under color of state law.]

            If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction[s] [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff.  If, on the other hand, you find that the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.

Comment

            Use this instruction only in conjunction with an applicable “particular rights” instruction, such as Instructions 9.9–9.33.  Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue.

             The elements of a § 1983 claim are (1) the action occurred “under color of state law” and (2) the action resulted in the deprivation of a constitutional right or federal statutory right.  Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).  In order to be individually liable under § 1983, an individual must personally participate in an alleged rights deprivation.  Avalos v. Baca, 596 F.3d 583, 587 (9th Cir. 2010).

            “In a § 1983 action, the plaintiff must also demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.”  Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008).  “To meet this causation requirement, the plaintiff must establish both causation-in-fact and proximate causation.”  Id.

            In Reynaga Hernandez v. Skinner, 969 F.3d 930, 941-42 (9th Cir. 2020), the Ninth Circuit discussed, for the first time, the minimum level of involvement needed for § 1983 liability under the integral-participant doctrine.  When liability is alleged against a defendant on this basis, the model instruction stated above will need to be

cited https://www.ce9.uscourts.gov/jury-instructions/node/140

18 U.S. Code § 242 – Deprivation of rights under color of law

DEPRIVATION OF RIGHTS UNDER COLOR OF LAW

• Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.For the purpose of Section 242, acts under “color of law” include acts not only done by federal, state, or local officials within their lawful authority, but also acts done beyond the bounds of that official’s lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.The offense is punishable by a range of imprisonment up to a life term, or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any.

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

cited https://www.justice.gov/crt/deprivation-rights-under-color-law#:~:text=Section%20242%20of%20Title%2018,laws%20of%20the%20United%20States.

cited https://www.law.cornell.edu/uscode/text/18/242

To learn how this is linked in with 18 U.S. Code § 241 – Conspiracy against rights

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Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 32 PC – Accessory After the Fact

Penal Code 31 PC – Aiding and Abetting Laws

What is Abuse of Process? When the Government Fails Us

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

Section 1983 Lawsuit – How to Bring a Civil Rights Claim

 Suing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?

Tort Claims Form File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Police BodyCam Footage Release

Electronic Audio Recording Request of OC Court Hearings

A Section 1983 lawsuit is a legal claim alleging that a state or local official has violated your civil rights under the United States Constitution. These actions may be brought in state or federal court. Victims can pursue

1. monetary damages or
2. an injunction to stop the improper conduct.

The injunction can prevent the violation from happening again. The damages can compensate the victim and punish the wrongdoer. However, victims have to Overcoming Qualified Immunity in Civil Rights Claims defense in order to recover monetary damages. Note, though, that recent law bars the use of this defense in some cases. How Far Does Qualified Immunity Go for Government?

1. What is a Section 1983 lawsuit?

A Section 1983 lawsuit is a civil rights lawsuit. It can be filed by someone whose civil rights have been violated. The victim can file a lawsuit if the wrongdoer was acting under color of law.¹

Civil rights are those guaranteed by the U.S. Constitution or certain federal laws.¹ The Supreme Court recognizes that there is a deprivation of rights when:

• police misconduct such as excessive force and unreasonable use of force (like the use of a taser during an arrest),²
• police officers wantonly search a victim’s home and kill their dogs,³
• a judge sexually assaults women while in the course of his/her job,⁴
• state officials strip welfare recipients of their benefits,⁵
• jail guards put an ex-gang member in a prison cell with current gang members, even after being told of the danger.⁶

Rights guaranteed by state law cannot be the basis of a Section 1983 lawsuit. Only federal rights are protected by the statute.⁷

Technically, Section 1983 is nothing more than a procedural device based on a federal statute. It gives federal courts jurisdiction to hear civil rights cases. No one can be liable under Section 1983. Instead, it creates liability for violating other federal laws. That is why 1983 cases always include an alleged violation of another law, such as the:

• First Amendment,
• Fourth Amendment (for example, arrests without probable cause, unreasonable searches),⁸
• Eighth Amendment,⁹
• Fourteenth Amendment (for example, lack of due process, equal protection), or
• Social Security Act.¹⁰

At common law, prior to Section 1983, lawsuits against the state and its agents were barred by sovereign immunity. Section 1983 was originally designed to protect slaves who were freed in the Civil War. Southern states passed laws that harassed and intimidated African Americans. Law enforcement officers in the south used their positions to assault victims.

The law was passed by legislators as a part of the Civil Rights Act of 1871. This act of Congress allowed black victims to file a lawsuit and recover money damages. That lawsuit could be filed in federal court. The congressional intent was for victims to avoid state court decisions. In state court, the victim would likely have faced a strong bias.

2. What does “under color of law” mean?

The civil rights violation has to be committed “under color of law.” People act under color of any statute when they behave with the apparent authority of the state. While on the job, police department officers and jail guards act under color of state law.¹¹

State officials can act under color of law while they break the law, too. They can violate official policy and still maintain the appearance of state action.¹² So long as they have the appearance of state actors, they can be sued.

Example: Acting on their own, 13 uniformed police officers break into a house and arrest a man in front of his family. They hold him at the station for 10 hours before releasing him without charge.¹³

This means that off-duty police officers can be acting under the color of law. However, there have to be signs that the officer made it seem like he was on the job (acting in “an official capacity”). Factors could include:

• showing a police badge,
• claiming to be a police officer,
• brandishing a gun,
• behaving like a police officer, and
• acting like an arrest was being made.

However, working for the state does not always mean that a person acts under color of law. Some people who technically work for the state cannot act under color of law.

Example: Public defenders cannot act under color of law. Their role is to fight the state’s prosecutions.¹⁴

On the other hand, people who do not work for the government can still act under color of law. This can happen if they conspire with government officials to deprive someone of their civil rights.

Example: A businessman works with a corrupt judge to keep a competitor from drilling oil wells.¹⁵

3. Who can I sue under Section 1983?

Victims of civil rights violations can sue people who acted under the color of law. This includes:

• people who work for the government (including state government, local government, and government for the District of Columbia),
• other individuals who conspire with those government workers, and
• certain government entities.

A Section 1983 litigation claim can be filed against state and local officials such as:

• police officers,
• sheriff’s deputies,
• state or county prison guards,
• police chiefs,
• county sheriffs,
• prison wardens, and
• other public officials

However, Section 1983 does not normally reach federal officials.¹⁶ Federal officials can only be sued under Section 1983 if they act alongside state or local officials.¹⁷ When they are acting on their own, federal officials can be sued in a Bivens claim instead. (See our article on Bivens vs 1983).

Private individuals can also be sued if they conspire with state officials. This would make them act under color of law.¹⁸

When the constitutional violation was a custom or policy of the municipality, the municipality can be sued, too.¹⁹ Municipalities include:

• towns,
• villages,
• cities,
• counties, and
• any municipal program or department, like a school board or public transit service.

However, states like California or Texas cannot be sued in a Section 1983 claim.²⁰

4. Can you bring a 1983 claim in state court?

Victims who suffered deprivation of any rights can file a Section 1983 cause of action in state lower courts (district courts).²¹ However, the ability to recover monetary damages is drastically reduced. The state official cannot be sued for official conduct for money damages.²²

5. What damages can I obtain?

Successful Section 1983 claims can produce 2 kinds of remedies:

• compensatory damages for the civil rights violation known as monetary damages, and/or
• prospective relief, also known as injunctive relief.

The court can award monetary damages for compensation as well as punitive damages. The compensation aims to cover the victim’s:

• medical bills,
• lost wages,
• reduced earning capacity,
• pain and suffering,
• loss of liberty from the civil rights violation, and
• possibly attorney’s fees

The punitive damages aim to punish the wrongdoer for violating the victim’s rights. They cannot be recovered from a municipality, though.²³

Some state officials are absolutely immune to 1983 claims for monetary damages. This absolute immunity applies to their official conduct. These people include:

• prosecutors,²⁴
• judges,²⁵ and
• state lawmakers.²⁶

Section 1983 claims that demand damages are also susceptible to the qualified immunity defense. This defense allows other state officials to claim they were acting in good faith. The defense can succeed so long as they did not:

• violate the victim’s civil rights, and
• those rights were so clearly established that a reasonable officer would have known their conduct was a violation.²⁷

However, municipalities cannot make use of the qualified immunity defense. They can be held liable even if they did not know they were violating the victim’s constitutional rights.²⁸

Note also that recent California law, Senate Bill 2, bars police officers from raising a qualified immunity defense in California lawsuits brought under the Tom Bane Civil Rights Act.  A citizen can file a Bane Act suit if any government employees interfered by threat, intimidation, or coercion with that party’s constitutional rights.

Senate Bill 2 also prohibits prison guards and their employers from using a qualified immunity defense in cases where they injured a prisoner or failed to provide him/her with medical care.

Section 1983 causes of action can also pursue prospective relief. This comes in the form of an injunction, or court order. That order changes be made to prevent another, similar violation from happening in the future.

6. Is there a statute of limitations?

There is a statute of limitations for Section 1983 claims. This means the civil action (lawsuit) must be filed within a certain time frame. However, that length of time depends on the type of constitutional violation.

Courts have to apply the statute of limitations that is most similar to the violation.²⁹ This is often a personal injury statute of limitations, which tends to be 3 years. However, some 1983 cases can have different time constraints.