Updated 2013 by Robert P. Capistrano
5.1.B. Due Process Claims and Procedural Issues and Section 1983
5.1.B.1. Due Process Claims and Section 1983
In relevant part, the Fourteenth Amendment prohibits any state from depriving “any person of life, liberty, or property, without due process of law.” Claims under this provision have been a staple of Section 1983 legal services practice for many years. Procedural due process addresses the right to notice and hearing before (or after) particular deprivations can take place. Substantive due process concerns governmental deprivations of life, liberty, or property stemming from particularly outrageous governmental actions. The Supreme Court has developed a number of guidelines on the use of Section 1983 to raise claims founded on alleged deprivations of due process, beginning with an analysis of interests protected by due process.
5.1.B.1.a. Establishing a “Property” Interest
In Board of Regents v. Roth, the Supreme Court defined the property interest protected by the Fourteenth Amendment as a “legitimate claim of entitlement” to the item or benefit in question.1 Such “entitlements” are “created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”2
Plaintiff Roth, a teacher who had lost his job, was held not to have been terminated without due process because, lacking tenure, he “surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require ... giv[ing] him a hearing.”3 In Perry v. Sinderman, the companion case to Roth, the Court stated that an untenured teacher might, nevertheless, have a property interest if he could show the existence of “such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at the hearing.”4 Although “a mere ‘expectancy’” is not protected by due process, the Court held that the aggrieved party “must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of the ‘policies and practices of the institution.’”5
Congress’ reluctance to grant federal entitlements is evidenced by the increasing use of “block grant” distributions of federal largess. Therefore, advocates seeking to establish a property interest in certain federally funded benefits, such as Temporary Assistance for Needy Families, must look for “rules or mutual understandings” under state or local statutes or ordinances under which the client can claim an entitlement protected from deprivation by the federal Due Process Clause. For example, many state aid to families with dependent children statutes were amended to conform to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Yet, despite the addition of time limits or “welfare to work” requirements, the state statute may still mandate that an applicant receive a given amount of benefits so long as basic eligibility is met, thereby creating a “legitimate claim of entitlement” protected by the Due Process Clause.6
5.1.B.1.b. Establishing a “Liberty” Interest
Outside of a custodial setting, deprivation of liberty interests usually presents substantive, rather than procedural, due process issues. Such liberty interests were described in Board of Regents v. Roth as follows:
Without doubt it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.7
Fundamental liberty interests, however, are limited to those that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [they] were sacrificed,” or that are “deeply rooted in this Nation’s history and tradition."8 Advocates should not neglect assertions of the liberty interest. For example, restrictive housing authority roommate policies that hamper the right to live with relatives can present a deprivation of a liberty interest.9
5.1.B.1.c. Assessing the Adequacy of the Procedures Used
Procedural due process generally requires that governmental deprivations of life, liberty or property be accompanied by notice and hearing. Pre-termination hearings are required where the threatened property right consists of need-based benefits. This is because the recipient or applicant “may be deprive[d] of the very means by which to live....”10 The test for determining the extent of the procedures required in a given case, including the right to a pre-deprivation hearing, balances three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.11
Procedural due process continues to play a key role in legal services practice, as clients fail to receive notice of adverse government action or receive notices that fail to explain adequately the basis for a benefit denial, termination, suspension, or the imposition of sanctions. Clients are often faced with hearing officers who fail to take evidence or gather evidence outside of a hearing through ex parte phone calls, or who do not adequately explain their reasoning when rendering a decision. In the world of devolution, health maintenance organizations with Medicaid enrollees may not offer the opportunity for a fair hearing, for example, to contest the denial of a request for a particular procedure or treatment whose only rationale is the financial bottom line.
5.1.B.1.d. Section 1983 Cannot Be Used to Redress a Non-systemic, Random, and Unintentional Deprivation of a Life, Liberty, or Property Interest
Given the breadth of the Due Process Clause, any government action that deprives a party of life, liberty or property is conceivably actionable under Section 1983. The Supreme Court, however, has narrowed the ability of plaintiffs to package a tort claim in the trappings of due process. Parratt v. Taylor held that a Section 1983 remedy was not available to an inmate who sued a prison for its negligent loss of a hobby kit mailed to the plaintiff.12 The Supreme Court ruled that the prisoner could not sue for the deprivation of procedural due process if an alternative post-deprivation state damages remedy sounding in tort was available. Due process was not implicated because the state could not be expected to anticipate a random and unpredictable loss of property.13
By contrast, in Zinermon v. Burch,14 a voluntary commitment case, the Court ruled that the government’s failure to provide a pre-commitment hearing required by state law was actionable under Section 1983. There, plaintiff, who had voluntarily committed himself to a state mental institution, later sued arguing that he lacked the capacity to have consented to his voluntary commitment. Unlike the unpredictable and random loss in Parratt, the Court found that depriving the liberty of a person facing commitment was “predictable and systemic” in the sense that the danger of an unwarranted loss of liberty is evident in all cases that pose the potential for commitment. Hence, the possibility of post-commitment relief – a tort suit for damages or habeas corpus – was not an adequate post-deprivation remedy that could substitute for the failure to hold a pre-commitment hearing.
These principles can be applied to a legal aid practice. Assume that a tenant has sought your help after having been evicted from her apartment following a nuisance abatement proceeding, notice of which was given only to the building owner and not to the tenants. In response to your due process claim, the city relies on Parratt to argue that your client’s only remedy is damages, and that because no administrative claim was made to the city, the suit should be dismissed. Zinermon would support your client’s claim, because the deprivation of a tenancy without due process is the inevitable and systemic result of a nuisance abatement proceeding in which notice is never given affected tenants. Because exhaustion of state remedies is not required for Section 1983 claims, this suit should survive despite the failure to file an administrative claim, even if the action were brought in state court.
5.1.B.1.e. Substantive Due Process Claims
The typical substantive due process claim brought under Section 1983 seeks redress for government acts that violate “personal immunities” that are “fundamental,” that is, “implicit in the concept of ordered liberty.”15 Rights protected at least in part by the Due Process Clause include liberty interests not explicitly set forth in the Constitution, such as the right to privacy.16
A substantive due process claim can also be based on deprivations caused by the government’s failure to train, supervise or adequately hire its employees. Such claims are very difficult to prove. They require a showing that the government’s inaction was a custom, policy, or practice, and that the government’s deliberate inaction caused the injuries. Since City of Canton v. Harris, involving failure to identify and adequately treat a prisoner’s medical condition, the court has basically required a plaintiff to show that the type of incident which resulted in injury is so recurring as to tend to show that the government’s inaction was conscious or deliberate, amounting to “deliberate indifference” to the consequences of its inaction.17
Substantive due process claims involving incarcerated prisoners are often hybrid claims based on both the Fourteenth Amendment and another substantive constitutional right. While City of Canton v. Harris was based solely on due process, other cases, particularly those involving injuries to prisoners caused by other prisoners, have been couched as a deprivation of the Eighth Amendment bar on cruel and unusual punishment.18 In both cases, the Supreme Court has applied the “deliberate indifference” standard, although the requisite showing of government knowledge of the danger appears somewhat higher when third-party-caused injuries are involved. Moreover, the Supreme Court has more recently applied the “deliberate indifference” standard to cases outside of the prison context, involving a public school’s failure to do anything to control student sexual harassment.19 It is hardly far-fetched to apply the same standard where social service or housing benefits are denied as a result of government’s “deliberate indifference” to the consequences of its failure to adequately train or supervise its staff.
5.1.B.2. Procedural Issues and Section 1983
Procedural hurdles can arise in Section 1983 cases. Among the most important involve exhaustion of state administrative remedies and when a federal court should “borrow” state law.
5.1.B.2.a. Exhaustion of State Remedies Is Usually Not Required
Under Monroe v. Pape, a plaintiff is not required to exhaust any available state court remedies before invoking Section 1983, because the purpose of this statute is to open federal courts to claims that federal rights were violated.20 In Patsy v. Board of Regents, the leading case on this issue, the Court excused plaintiff’s failure to raise an employment discrimination claim in a state administrative proceeding.21 Pointing to Section 1983's purpose of opening the federal courts to plaintiffs seeking the vindication of federal rights, the Court ruled that Congress had not intended that plaintiffs first exhaust any available state administrative remedies. For the same reason, a Section 1983 plaintiff is not required to first file an administrative claim for government reimbursement even when state law requires such a submission prior to filing suit.22
Because of the non-exhaustion rule, a Section 1983 plaintiff who sues directly in federal court can avoid the pitfall of an adverse state judicial or administrative ruling that would preclude subsequent litigation of the federal issue under the doctrines of issue or claim preclusion.23 Moreover, under general administrative law principles, failure to exhaust would be excused if the administrative tribunal lacked the authority to decide the federal constitutional or preemption claim.24
Some exceptions to the non-exhaustion rule exist; some of them having only passing relevance to a civil legal services practice. Under Parratt, a Section 1983 remedy is not available to address random tort claims based on the deprivation of due process if adequate state post-deprivation remedies are available. Although the Parratt rule generally does not apply to suits based on the deprivation of substantive constitutional rights not involving due process, the Supreme Court has, nevertheless, ruled that Fifth and Fourteenth Amendment “taking” claims are not ripe in federal court until the local government agency has refused just compensation.25
Moreover, for reasons of comity, federal statutes require that challenges to state and local tax schemes be first brought in state courts.26 Federal courts rely on the same basic principle to abstain from ruling on a claim that raises issues that can more appropriately be addressed by a state court.27
5.1.B.2.b. Exhaustion of Administrative Remedies and the Ripeness Doctrine
To circumvent the general non-exhaustion rule, defendants have argued for the dismissal of Section 1983 actions on ripeness grounds. They argue that the claim is not ripe for review because the issue could have been raised and resolved at the administrative level. While a plaintiff can respond that such a ripeness argument is actually only a disguised exhaustion claim, which should be rejected, resolution of the issue will turn on whether the challenged action is “final” in its effect on the plaintiff.
The rule requiring exhaustion of administrative remedies stems from the common-sense proposition that only “final” administrative actions should be ripe for court review.28 Thus, in an administrative proceeding where plaintiff’s claims may be resolved with or without regard to any federal issues, the agency may argue, with some justification, that the claims are not fit for judicial review until the agency has had a chance to review its initial decision.29 Absent a final hearing decision, the agency might argue that it has not conclusively taken an adverse position to the plaintiff.30 In the Section 1983 context, however, an agency action is nevertheless “final” for ripeness purposes when the agency’s action is so definitive as to have resulted in a deprivation of federal rights, even if administrative remedies have not been exhausted.
Williamson County Regional Planning Commission v. Hamilton Bank addressed the interplay between the “finality” principle and the Section 1983 non-exhaustion rule.31 In that case, the court dismissed a challenge to a zoning rule on the ground that the lawsuit was not ripe because the plaintiff bank, when faced with a rule that could have stripped its property of economic value, sued the zoning agency instead of asking for a variance. Had the variance been granted, the property loss would have been avoided or curtailed. If the variance had been denied, resulting in a deprivation of economic value in violation of the Fourteenth Amendment, the case would then have become ripe for review. In response to the argument that Section 1983 does not require exhaustion, the Court wrote:
The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate. Patsy [v. Board of Regents] concerned the latter, not the former.32
These principles apply in the legal aid context. For instance, if a food stamp agency or public housing authority issues a notice of action which affects an individual and, on its face, violates federal law, an aggrieved plaintiff may sue without first invoking any available administrative agency appeals. The agency’s action has “inflict[ed] an actual concrete injury.” While an administrative proceeding could remedy the injury, so could a lawsuit. Because Section 1983 does not require exhaustion, a plaintiff can go directly to court.
5.1.B.2.c. Borrowing State Law in a Section 1983 Action Brought in Federal Court
42 U.S.C. § 1988(a) requires that a federal court hearing a Section 1983 claim apply state law where federal law is silent on the issue and state law is not inconsistent with federal law. The court must first decide whether federal law is deficient or silent on the issue. If so, it must then determine whether (1) a controlling statute applies or (2) state common law applies to the claim.33
Using this analysis, the Supreme Court has applied state tort law to determine the survivability of Section 1983 claims. For example, the Court has held that state tort laws prescribing the length of the statute of limitations govern Section 1983 actions.34 However, federal law "conforming in general to common-law tort principles" determines when a Section 1983 action accrues.35 Ordinarily, accrual occurs when the plaintiff has "a complete and present cause of action."36
Updated 2013 by Robert P. Capistrano
- 1. Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
- 2. Id.
- 3. Id. at 578.
- 4. Perry v. Sinderman, 408 U.S. 593, 602 (1972).
- 5. Id. at 602, 603 (citation omitted). Some cases have held that the expectation of receiving a benefit can be a property interest which supports a due process claim when the state deprives the potential plaintiff of a procedure to vindicate that expectation. In Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), a property interest was found in the expectation that the state would provide a procedure for determining a plaintiff’s disability discrimination claim. However, procedures alone and not tied to tangible benefits, are not property rights. Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005). In that case, the Court held that no property right inheres in something that the government provides or takes away at its discretion. Moreover, even if the arrest of violators of domestic violence restraining orders were mandatory, the Court held that the entitlement to enforcement was not a property right. Enforcement of an order against a third party would, according to the Court, only incidentally or indirectly create a benefit.
- 6. Entitlement to that benefit must be demonstrated. In American Manufacturers Mutual Insurance Company v. Sullivan, 526 U.S. 40, 60-61 (1999), the Court found that workers’ compensation recipients do not have a property interest in medical expense payments until the reasonableness and necessity of the expense have been established.
- 7. Board of Regents v. Roth, 408 U.S. 564, 572 (1972) (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)). See Zinermon v. Burch, 494 U.S. 113, 117 (1990) (liberty interest in avoiding confinement in mental hospital).
- 8. Bowers v. Hardwick, 478 U.S. 186, 191-92 (1986) (overruled by Lawrence v. Texas, 539 U.S. 558 (2003), and quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) and Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)). See District Attorney's Office v. Osborne, 557 U.S. 52, 129 S. Ct. 2308, 2319 (2009) (liberty interest in demonstrating innocence with new evidence).
- 9. See Moore, 431 U.S. at 503; see also Wilkinson v. Austin, 545 U.S. 209, 221-24 (2005) (inmates have a liberty interest in avoiding assignment to a “Supermax” facility).
- 10. Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (Aid to Families with Dependent Children benefits); Wheeler v. Montgomery, 397 U.S. 280 (1970) (benefits under Aid to the Totally Disabled Program, the California precursor to the Supplemental Security Income program).
- 11. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). See Wilkinson, 545 U.S. at 226-29 (emphasizing role of notice and “fair opportunity for rebuttal” in reducing risk of erroneous deprivation). For a comprehensive examination of Due Process principles in administrative hearings, see Robert P. Capistrano, Making the Fair Hearing More Fair, 44 Clearinghouse Review 96 (July-Aug. 2010).
- 12. Parratt v. Taylor, 451 U.S. 527 (1981).
- 13. The Court later ruled that § 1983 was unavailable to redress an intentional property loss framed as a deprivation of due process. Hudson v. Palmer, 468 U.S. 517 (1984) (intentional but random destruction of property during prison cell search). Still later, it held that there could never be a negligent random deprivation of due process, even if state law provided no post-deprivation remedy. Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986). In these cases, reflecting the court’s antipathy to prisoner suits, injured prisoners were denied a federal remedy even though they could not sue the prison for negligence under state law.
- 14. Zinermon v. Burch, 494 U.S. 113 (1990). Zinermon also held that the Parratt v. Taylor rule (that § 1983 is unavailable to redress random unauthorized deprivations of due process) applies to deprivations of liberty as well as property interests, but cannot be used to bar claims based on the deprivation of other substantive constitutional rights.
- 15. See Rochin v. California, 342 U.S. 165, 169, 175 (1952), the prototypical “police brutality” case in which the violations were said to have “shock[ed] the conscience.”
- 16. See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972) (access to contraception); Roe v. Wade, 410 U.S. 113 (1973) (right to choose to have or not have an abortion); Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (right to live with family members); and Cruzan v. Director of Missouri Department of Health, 497 U.S. 261 (1990) (right to refuse medical treatment). This survey by no means exhausts the scope of the interests protected by substantive due process.
- 17. Connick v. Thompson, 131 S. Ct. 1350, 1359-60 (2011); City of Canton v. Harris, 489 U.S. 378, 388 (1989) (failure to train police officers to identify medical emergencies). In Connick, which involved a prosecutor who had withheld exculpatory evidence from an innocent plaintiff who subsequently spent 14 years on death row, the Court reversed a plaintiff's judgment because the prosecutor—employed by an office that had four prior convictions reversed because of withheld evidence—had presumably learned legal reasoning and legal ethics in law school, a factor absent in the case of most government employees. See also Board of the County Commissioners v. Brown, 520 U.S. 397 (1997) (liability for failure to hire competent personnel requires a showing of “deliberate indifference” to the consequences in light of the newly hired deputy sheriff’s propensity for violence).
- 18. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976). The government’s duty extends to preventing custodial mental patients from harming themselves or others. Youngberg v. Romero, 457 U.S. 307, 315-16, 319 (1982); City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983).
- 19. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
- 20. Monroe v. Pape, 365 U.S. 167 (1971); see also McNeese v. Board of Education, 373 U.S. 668 (1963).
- 21. Patsy v. Board of Regents, 457 U.S. 496 (1982).
- 22. Felder v. Casey, 487 U.S. 131 (1988) (a plaintiff who files a § 1983 action in state court is not required to comply with state pre-litigation “notice of claim” requirements.) Felder, however, does not bar a state court from requiring that a § 1983 plaintiff comply with neutral state court procedural rules. It does excuse compliance with those that would “frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court.” Id. at 141. Thus, in Johnson v. Fankell, 520 U.S. 911 (1997), the Supreme Court validated a state court’s application of a procedural rule that prohibited interlocutory appeals, even though, contrary to the practice in federal court, application of the rule forbade a government employee from immediately appealing the denial of summary judgment based on qualified immunity. The Supreme Court reasoned that the state rule was not “outcome determinative” in that “postponement of the appeal until after final judgment will not affect the final outcome of the case.” Id. at 921.
- 23. As discussed in Chapter 3.4 of this MANUAL, the advocate should, nevertheless, consider pursuing state judicial or administrative remedies as those may be faster and less expensive. As noted, doing so may raise preclusion issues.
- 24. Administrative tribunals rarely have such broad power. See McKart v. United States, 395 U.S. 185 (1969) for a discussion of why exhaustion is preferred, and when failure to do so – as where exhaustion would be futile – is excusable.
- 25. Zinermon, 494 U.S. at 113; Williamson County Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985); San Remo Hotel v. San Francisco, 545 U.S. 323 (2005). San Remo Hotel reiterated the rule even though the exhaustion requirement could mean that a plaintiff might be collaterally estopped from litigating the federal claim.
- 26. 28 U.S.C. §§ 1341-1342.
- 27. See Chapter 2.8 of this MANUAL, for a discussion of the abstention doctrine.
- 28. See Chapters 3.2 and 3.4 of this MANUAL for discussions of the ripeness and exhaustion doctrines. The exhaustion doctrine under the Administrative Procedure Act is discussed in Section 1.B.3.b. of this Chapter.
- 29. In the Ninth Circuit, for example, a case can be dismissed for failure to exhaust even in the absence of a statutory administrative appeal when “(1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to allow the agency to correct its own mistakes and to preclude the need for judicial review.” United States v. California Care Corporation, 709 F.2d 1241, 1248 (9th Cir. 1983) (in a suit by the Department of Health and Human Services for recoupment of Medicare payments received by providers, the providers’ objections to the suit were rejected out of hand because they had not been first raised with Blue Cross). Similarly, in Affiliated Professional Home Health Care Agency v. Shalala, 164 F. 3d 282, 286 (5th Cir. 1999), a suit for Medicare payments, couched as a claim for violation of constitutional rights, was dismissed for failure to exhaust administrative remedies.
- 30. See Thunder Basin Coal Company v. Reich, 510 U.S. 200 (1994) (applying the Abbott Laboratories. v. Gardner, 387 U.S. 136 (1967) test to deny pre-enforcement judicial review of a labor regulation because of the availability of administrative review).
- 31. Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 192-93 (1985).
- 32. Id. at 192.
- 33. Robertson v. Wegmann, 436 U.S. 584 (1978).
- 34. Wilson v. Garcia, 471 U.S. 261, 276 (1985). However, while state law determines the limitations period, federal law determines when a § 1983 action accrues. Chardon v. Fernandez, 454 U.S. 6 (1981) (holding that the claim accrued when plaintiff learned he was to be fired, not when plaintiff was actually terminated).
- 35. Wallace v. Kato, 549 U.S. 384, 388 (2007).
- 36. Id. (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corporation of California, 522 U.S. 192, 201 (1997)), In Wallace, the Supreme Court held that the statute of limitations of a § 1983 claim for unlawful arrest runs from when the plaintiff appeared before a magistrate and was bound over for trial, not when charges were dropped against him.