IV. PRELIMINARY MATTERS
Prior to examining the bases of liability against municipalities under § 1983, it is necessary to understand various concepts that may come into play in litigating such claims. Practitioners seeking to prosecute or defend a municipality in an action under § 1983 must be familiar with these concepts.
A. Eleventh Amendment
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."17
To the uninitiated, the Eleventh Amendment appears to be of very limited terms. As the Supreme Court explained in Hans v. Louisiana,18 however, the amendment deprives a federal court of jurisdiction to entertain a suit brought by a citizen against his or her own state, as well as another state. The Supreme Court held that the history of Article III of the Constitution and the preexisting common law did not contemplate federal jurisdiction over any suits against unconsenting states.19 In spite of this jurisdictional bar, a state may waive Eleventh Amendment immunity and consent to suit against it in federal court.20 In determining whether a state has waived its constitutional protection under the Eleventh Amendment, the courts will find waiver only if stated by express language or by such overwhelming implications from the text of a statute that there is no room for any other reasonable construction.21
Congress has the power to abrogate the Eleventh Amendment immunity consistent with the provisions of Section 5 of the Fourteenth Amendment.22 Just as statutes are strictly construed when determining whether a state has consented to suit, however, so too must the congressional intent to abrogate Eleventh Amendment immunity be unequivocal.23
The Supreme Court held in Quern v. Jordan24 that § 1983 does not explicitly abrogate the immunity of the states, nor does it have a history that would lead to such a conclusion. Thus, the Court held that Eleventh Amendment immunity barred federal courts from obtaining jurisdiction over states in § 1983 actions.
It can become confusing to determine proper application of the Eleventh Amendment due to the fact that § 1983 creates liability on the part of every "person" who—under color of any statute, ordinance, regulation, custom, or usage of any state, territory, or the District of Columbia—causes a deprivation of any rights, privileges, or immunities secured by the Constitution or laws of the United States. This requirement is generally referred to as "state action," and defendants in § 1983 actions are typically referred to as "state actors."
Eleventh Amendment immunity from suit in federal courts extends to the states themselves and state agencies but does not typically extend to counties and other political subdivisions, especially municipal corporations.25 The issue to be determined in applying Eleventh Amendment immunity is whether the defendant is the state itself or, in the words of Monell, a "local government unit." This determination must be made by examining state law. The Supreme Court held in Mount Healthy that a board of education was not entitled to assert Eleventh Amendment immunity because under Ohio law the "state" did not include "political subdivisions," while "political subdivisions," in turn, did include local school districts.26
A determination must be made on a state-by-state basis as to whether a particular governmental entity is protected by Eleventh Amendment immunity. Compare Fordyce v. City of Seattle27 (under Washington law a municipal corporation, such as the city of Seattle, is not a state agency); Eaglesmith v. Ward28 (under California law County Office of Education is a state agency for Eleventh Amendment purposes as is a county school district); and Roach v. West Virginia Regional Jail and Correctional Facility Authority29 (under West Virginia law a regional jail and correctional facility authority is a state agency for purposes of Eleventh Amendment immunity). This can lead to the rather anomalous result of a similar agency or office being both "state" and "local" in the same circuit, depending upon which state is involved.30 The circuits have developed various standards to determine whether an agency or officer is "state" or "local." Ultimately, the determining factor is whether the agency or officer is acting as an "arm of the state."31
The Eleventh Amendment does not bar a claim when the action under § 1983 is brought in state court, since the amendment, by its explicit terms, restrains only the "Judicial power of the United States."32 Section 1983 actions may be brought in state court.33 Thus, a plaintiff bringing suit against a state or state agency under § 1983 can avoid Eleventh Amendment immunity by filing suit in state court.34 As will be discussed, however, the state is not a "person" for purposes of § 1983. So the fact that Eleventh Amendment immunity does not bar a § 1983 claim brought in state court against the state does not give a plaintiff a claim that is free from defenses.
The Eleventh Amendment has also been held to apply to a suit seeking injunctive relief, as the language of the Eleventh Amendment speaks of suits "in law or equity."35 There is an important exception to Eleventh Amendment immunity with respect to injunctive relief. A suit challenging the constitutionality of a state official's action is not deemed to be one against the state, and prospective injunctive relief may be issued by a federal court under such circumstances.36 The Supreme Court has held, however, that while a federal court may award an injunction that governs the state official's future conduct, it still may not award monetary damages.37 Thus, the federal courts may award prospective injunctive relief against a state official in a suit challenging the constitutionality of the official's action.38
The Supreme Court has also held that an award of attorneys' fees to a prevailing plaintiff under § 1988 is not barred by the Eleventh Amend-ment.39 Therefore, a prevailing plaintiff who obtains prospective injunctive relief against a state official will be entitled to an award of attorneys' fees payable from the state treasury.
B. Official-Capacity Suits and Personal-Capacity Suits
It is necessary to understand the distinction between official-capacity suits and personal-capacity suits. In Brandon v. Holt,40 the Supreme Court held that a suit brought against a public official "in his official capacity" sought to impose liability on the entity the official represented, rather than on the individual himself. As the Supreme Court explained in Kentucky v. Graham:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, "generally represent only another way of pleading an action against an entity of which an officer is an agent."
As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.41
It is oftentimes difficult to ascertain whether a plaintiff seeks to sue an individual in his individual or official capacity. The Supreme Court has observed that "it is obviously preferable for the plaintiff to be specific in the first instance to avoid any ambiguity."42 In the absence of an explicit statement in the complaint, however, the circuits are split as to how to determine whether a claim should be treated as an individual-capacity claim or an official-capacity claim.
All circuits but the Eighth have adopted the approach of looking to the substance of the plaintiff's claim, the relief sought, and the "course of proceedings" to determine the nature of a § 1983 suit when a plaintiff fails to allege capacity. The Eighth Circuit continues to adhere to a bright-line rule that in order to sue a governmental officer or employee in her personal capacity, the complaint must explicitly allege a personal-capacity claim.43
Brandon v. Holt44 is the genesis of the "course of proceedings" test. In Brandon, the Supreme Court stated: "In many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. The course of proceedings in such cases typically will indicate the nature of the liability sought to be imposed."
The First Circuit's decision in Asociacion de Subscripcion Conjunta Del Seguro de Responsabilidad Obligatorio v. Flores Galarza45 is representative of this view. "[T]he Supreme Court had suggested that in determining whether a suit involves a personal or official-capacity claim, we should be guided by the complaint or, if not clearly specified in the complaint, by the '[t]he course of proceedings.'"46 The other circuits applying the "course of proceedings" test have reached similar conclusions.47
In Egerdahl v. Hibbing Community College,48 the Eighth Circuit continued to follow its previously announced rule that if a plaintiff's complaint is silent about the capacity in which an individual is being sued, the complaint is interpreted as including only official-capacity claims.
The Sixth Circuit originally announced the same bright-line test as employed by the Eighth Circuit in Wells v. Brown.49 The Sixth Circuit, however, abandoned the bright-line test and adopted the "course of proceedings" test in Moore v. City of Harriman.50
As the Supreme Court noted in Hafer v. Melo, the preferable approach is for a plaintiff to unequivocally state whether...
