Section 1983 Litigation/Color of State Law and State Action

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Section 1983 Litigation
Table of Contents
Introduction to § 1983 Litigation
The Statute
Historical Background
Nature of § 1983 Litigation
Right to Trial by Jury
Jury Instructions
Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials
The Bivens Claim for Relief
Law Governing Bivens Claims
Elements of Claim, Functional Role, Pleading, and Jurisdiction
Elements of the § 1983 Claim
Functional Role of § 1983
Pleading § 1983 Claims
Federal Court Jurisdiction
State Court Jurisdiction
Section 1983 Plaintiffs
Persons Entitled to Bring Suit Under § 1983
Constitutional Rights Enforceable Under § 1983
Due Process Rights: In General
Procedural Due Process
Substantive Due Process Claims
Use of Force by Government Officials: Sources of Constitutional Protection
Arrests and Searches
Malicious Prosecution Claims Under Fourth Amendment
Conditions-of-Confinement Claims Under Eighth Amendment
First Amendment Claims
Equal Protection “Class-of-One” Claims
Enforcement of Federal Statutes Under § 1983
Enforcement of Federal “Rights”
Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy
Current Supreme Court Approach
Enforcement of Federal Regulations Under § 1983
Color of State Law and State Action
State and Local Officials
State Action Tests
Section 1983 Defendants
State Defendants
Interplay of “Person” and Eleventh Amendment Issues
Municipal Defendants
State Versus Municipal Policy Maker
Departments, Offices, and Commissions
Capacity of Claim: Individual Versus Official Capacity
Municipal Liability
Fundamental Principles of § 1983 Municipal Liability
Officially Promulgated Policy
Municipal Policy Makers
Custom or Practice
Inadequate Training
Inadequate Hiring
Pleading Municipal Liability Claims
Liability of Supervisors
Relationship Between Individual and Municipal Liability
Los Angeles v. Heller
If Plaintiff Prevails on Personal-Capacity Claim
“Cost Allocation Scheme”
State Liability: The Eleventh Amendment
Relationship Between Suable § 1983 “Person” and Eleventh Amendment Immunity
Eleventh Amendment Protects State Even When Sued by Citizen of Defendant State
State Liability in § 1983 Actions
Personal-Capacity Claims
Municipal Liability; the Hybrid Entity Problem
Eleventh Amendment Waivers
Eleventh Amendment Appeals
Personal-Capacity Claims: Absolute Immunities
Absolute Versus Qualified Immunity: The Functional Approach
Judicial Immunity
Prosecutorial Immunity
Witness Immunity
Legislative Immunity
Personal Liability: Qualified Immunity
Who May Assert Qualified Immunity? Private Party State Actors
Clearly Established Federal Law
Procedural Aspects of Qualified Immunity
Exhaustion of State Remedies
State Judicial Remedies: Parratt-Hudson Doctrine
Preiser, Heck, and Beyond
State Administrative Remedies; PLRA
Notice of Claim
Preclusion Defenses
State Court Judgments
Administrative Res Judicata
Arbitration Decisions
Statute of Limitations
Limitations Period
Relation Back
Survivorship and Wrongful Death
Wrongful Death
Abstention Doctrines
Pullman Abstention; State Certification Procedure
Younger Abstention
Colorado River Abstention
Burford Abstention
Domestic Relations Doctrine
Tax Injunction Act
Monetary Relief
Nominal and Compensatory Damages
Punitive Damages
Release-Dismissal Agreements
Prison Litigation Reform Act
Attorneys’ Fees
Section 1988 Fee Litigation
Prevailing Parties
Computation of Fee Award: Lodestar Adjustment Method
Other Fee Issues
Model Instructions
Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law
Model Instruction 2: Fourth Amendment Excessive Force Claim
Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim
Model Instruction 4: Fourth Amendment False Arrest Claim
Model Instruction 5: Municipal Liability—General Instruction
Model Instruction 6: Municipal Liability—Inadequate Training or Supervision
Model Instruction 7: Compensatory Damages
Model Instruction 8: Punitive Damages

An essential ingredient of a § 1983 claim is that the defendant acted under color of state law.[1] Furthermore, the Fourteenth Amendment imposes limitations only on state action; it does not reach the conduct of private parties, no matter how discriminatory or harmful.[2] Neither § 1983 nor the Fourteenth Amendment reaches the conduct of federal officials[3] or of purely private persons. “[P]ersons victimized by the tortious conduct of private parties must ordinarily explore other avenues of redress.”[4]

The Supreme Court and the lower federal courts have generally treated color of state law and state action as meaning the same thing.[5] A finding that the defendant was engaged in state action means that the defendant acted under color of state law.[6] If the defendant was not engaged in state action, the Fourteenth Amendment is not implicated, and there is no reason for a court to determine whether the defendant acted under color of state law.

Normally, when the § 1983 defendant argues that there was no state action (or actions under color of state law), the federal court will proceed directly to the state action/color of state law issue because if the plaintiff has not established the requisite state action, it will be unnecessary to resolve the constitutional merits, e.g., the First or Fourth Amendment issues. From time to time, however, a federal court that has concluded that there has been no constitutional violation will assume the existence of state action, and proceed directly to the constitutional merits.[7] Courts sometimes find other reasons for avoiding state action issues.[8]

State and Local Officials[edit | edit source]

The clearest case of state action (and action under color of state law) is that of a public official who carried out her official responsibilities in accordance with state law. For example, law enforcement officers who carry out their official responsibilities in accordance with state law are engaged in state action and action under color of state law. Polk County v. Dodson[9] is the only Supreme Court decision that has found that a state or local official who carried out her official responsibilities was not engaged in state action. The Court held that a public defender’s representation of an indigent criminal defendant was not under color of state law.[10] It reasoned that although the public defender is employed and paid by the state, when representing a criminal defendant he acts not for the state, but as an adversary of the state; and not under color of state law, but pursuant to the attorney–client relationship with undivided loyalty to his client. However, as the Court in Polk County acknowledged, a public defender may be sued under § 1983 for carrying out her administrative functions.[11]

In West v. Atkins,[12] the Supreme Court held that a private physician who provides medical services to prisoners pursuant to a contract with the state acts under color of state law. Although the prison physician’s exercise of professional judgment may seem autonomous, it is on behalf of the state, and in furtherance of the state’s obligation to provide medical care to inmates. The decision in West is based primarily on the fact that the prison physician performs a governmental function and carries out the state’s constitutional obligation of providing medical care to prison inmates.[13]

State and local officials who abuse their official power act under color of state law. The governing principle is that “‘[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken “under color of” state law.’”[14]

Courts often must decide whether an official, on the one hand, abused governmental power or, on the other hand, acted as a private individual.[15] The issue often arises with respect to off-duty police officers. To determine whether an off-duty police officer acted under color of state law, courts consider such factors as whether an ordinance deemed the officer on duty for twenty-four hours; the officer identified herself as a police officer; the officer had or showed her service revolver or other police department weapon; the officer flashed her badge; the officer conducted a search or made an arrest; the officer intervened in an existing dispute pursuant to police department regulations (as opposed to instigating a dispute).[16]

State Action Tests[edit | edit source]

Courts often must decide whether a private party’s involvement with state or local government justifies the conclusion that the party was engaged in “state action” for the purpose of the Fourteenth Amendment. The state action requirement of the Fourteenth Amendment is designed to preserve a private sphere free of constitutional restraints, as well as to ensure “that constitutional standards are invoked when it can be said that the state is responsible for the specific conduct of which the plaintiff complains.”[17] The Supreme Court has advanced the following state action tests (discussed in the next four subsections):

  • symbiotic relationship;
  • public function;
  • close or joint nexus;
  • joint participation; and
  • pervasive entwinement.

Not all the Court’s state action holdings have been based on one of the above doctrines, however. At times, the Court has found state action based on essentially ad hoc evaluations of a variety of connections between the private party and the state, such as in cases involving a private party’s exercise of a peremptory challenge and a private physician’s provision of medical care to inmates pursuant to a contract with the state.[18] The Court has acknowledged that its state action decisions “‘have not been a model of consistency.’”[19] The nature of the government involvement with the private party can give rise to disputed questions of fact. Nevertheless, the courts decide a large percentage of state action issues as a matter of law.

Symbiotic Relationship[edit | edit source]

The Supreme Court’s decision in Burton v. Wilmington Parking Authority[20] is often cited to support the principle that state action is present when the state and private party have a symbiotic relationship.[21] Although Burton has not been overruled, the Court has read it narrowly, as supporting a finding of state action only when the state profited from the private wrong.[22] Furthermore, the Court has denigrated Burton as one of its “early” state action decisions containing “vague” “joint participation” language.[23]

Public Function[edit | edit source]

Supreme Court decisions hold that there is state action when a private party carries out a function that has been historically and traditionally the “exclusive” prerogative of the state.[24] This is a demanding standard that § 1983 plaintiffs find very difficult to satisfy. While many functions may be historically and traditionally governmental functions, few are “exclusively” governmental functions. The Supreme Court has found state action under the public function doctrine in cases involving political primaries,[25] and it has stated that eminent domain is an example of an exclusively governmental power.[26] The Court’s decision in West v. Atkins,[27] that a private physician’s provision of medical care to prison inmates constitutes state action, was based in part on the fact that the physician carries out the governmental function of providing medical care to inmates.[28]

The Supreme Court has held that the following functions do not satisfy the public function doctrine because they are not “exclusively” governmental functions:

  1. insurance companies’ suspension of workers’ compensation benefits pending utilization committee review;[29]
  2. education of maladjusted children;[30]
  3. nursing home care;[31]
  4. coordination of amateur athletics;[32]
  5. dispute resolution through forced sale of goods by a warehouse company to enforce a possessory lien;[33]
  6. operation of a shopping mall;[34] and
  7. provision of utility services.[35]

Close Nexus Test[edit | edit source]

Under the “sufficiently close nexus” test, state action is present if the state ordered the private conduct, or “exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”[36] The federal courts have held that the following are not sufficient to satisfy this test:

  1. state authorization of private conduct;[37]
  2. a private party’s use of a state furnished dispute resolution mechanism;[38]
  3. a private party’s request for police assistance;[39]
  4. a private party’s attempt to influence governmental action;[40]
  5. state licensing and regulation, even if pervasive;[41] and
  6. state financial assistance, even if extensive.[42]

The Supreme Court has found no state action even when several of these indicia of government involvement coalesced in the same case. The Court has held that private parties (such as a utility company, a private school, and a nursing home) that were extensively regulated by the state, received substantial governmental assistance, carried out an important societal function, and acted pursuant to state authority, were not engaged in state action.[43]

Joint Action[edit | edit source]

A private party who jointly participates in the alleged constitutional wrongdoing with a state or local official is engaged in state action.[44] Joint participation requires (1) some type of conspiracy, agreement, or concerted action between the state and private party; (2) a showing that the state and private party shared a common goal to violate plaintiff’s federally protected rights; and (3) conduct pursuant to the conspiracy, agreement, or concerted action that violated the plaintiff’s federally protected rights. In Dennis v. Sparks,[45] the Supreme Court held that private parties who corruptly conspire with a judge act under color of state law, even though the judge is protected by judicial immunity.[46]

In National Collegiate Athletic Ass’n v. Tarkanian,[47] the Supreme Court held that there was no joint action between the NCAA, a private entity, and the state university because they had diametrically opposite goals. The NCAA’s goal was that the university’s head basketball coach be suspended, while the university sought to retain its prominent head coach.

Although a private party’s mere use of a state statute, alone, does not constitute state action,[48] when combined with the participation of state officials it can signify state action.[49] In Lugar v. Edmondson Oil Co.,[50] the Supreme Court held that a creditor who used a state prejudgment attachment statute acted under color of state law because, in attaching the debtor’s property, with help from the court clerk and sheriff, the creditor used state power. The assistance from state officials made the creditor a joint participant in state action.[51]

Pervasive Entwinement[edit | edit source]

In Brentwood Academy v. Tennessee Secondary School Athletic Ass’n,[52] the Supreme Court held that a statewide interscholastic athletic association was engaged in state action because the state was “pervasively entwined” with the association. The Court relied heavily on the fact that, because almost all of the state’s public schools were members of the association, there was a “largely overlapping identity” between the association and the state’s public schools. The Court also relied on the facts that the association’s governing board was dominated by public school officials; most of the association’s revenue was derived from governmental funds; and the association carried out a function that otherwise would have to be carried out by the state board of education. Unfortunately, the Court did not define “pervasive entwinement,”[53] thereby leaving it to the lower courts to determine on a case-by-case basis.[54]

References[edit | edit source]

  1. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978). See supra Elements of the § 1983 Claim.
  2. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999) (§ 1983 is not implicated by “merely private conduct, no matter how discriminatory or wrongful”); Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974).
  3. See District of Columbia v. Carter, 409 U.S. 418, 424–25 (1973) (“actions of the Federal Government and its officers are at least facially exempt from [§ 1983’s] proscriptions”); McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006) (“a section 1983 claim ordinarily will not lie against a federal actor”). In limited circumstances, a claim for damages against a federal official may be based on the Bivens doctrine. See supra Chapter 2.
  4. Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 253 (1st Cir. 1996).
  5. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982). However, color of state law would not constitute state action if color of state law were interpreted to mean merely acting “with the knowledge of and pursuant to [a] statute.” Id. at 935 n.18 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 162 n.23 (1970)).
  6. West v. Atkins, 487 U.S. 42, 49–50 (1988); Lugar, 457 U.S. at 935.
  7. See, e.g., Hotel & Rest. Employees Union, Local 100 v. City of N.Y. Dep’t of Parks & Recreation, 311 F.3d 534, 544 (2d Cir. 2002) (because court found no constitutional violation, it assumed, without deciding, private party engaged in state action); Mitchell v. City of New Haven, 854 F. Supp. 2d 238, 248 (D. Conn. 2012).
  8. See, e.g., Walter v. Horseshoe Entm’t, 483 F. App’x 884, 886 (5th Cir. 2012) (because plaintiffs’ claims were barred by doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), court didn’t have to reach state action issue).
  9. 454 U.S. 312 (1981).
  10. See West v. Atkins, 487 U.S. 42, 50 (1988) (discussing Polk Cnty.).
  11. See Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 612 (6th Cir. 2007), cert. denied, 555 U.S. 813 (2008). See also Vermont v. Brillon, 556 U.S. 81, 91 & n.7 (2009) (discussing Polk County). Further, a public defender may be sued under § 1983 if she conspired with a state actor, even if the state actor is immune from § 1983 liability. Tower v. Glover, 467 U.S. 914, 919–20 (1984).
  12. 487 U.S. 42 (1988).
  13. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 55–58 (1999) (discussing West).
  14. Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United States v. Classic, 313 U.S. 299, 325–26 (1946)).
  15. Compare, e.g., Wragg v. Vill. of Thornton, 604 F.3d 464, 467 (7th Cir. 2010) (village fire chief who sexually molested sixteen-year-old participant in fire cadet program “was a governmental actor, not a private actor, as he indisputably committed the abusive acts against Wragg in the line of his duty as fire chief”), with Roe v. City of Waterbury, 542 F.3d 31, 38 (7th Cir. 2008) (mayor’s sexual abuse of young children not conduct of official policy maker; “Decisions to sexually abuse young children are not ‘made for practical or legal reasons’ and are not in any way related to the City’s interests.”), cert. denied, 130 S. Ct. 95 (2009)).
  16. See, e.g., Pickrel v. City of Springfield, 45 F.3d 1115, 1118 (7th Cir. 1995); Pitchell v. Callahan, 13 F.3d 545, 548 (2d Cir. 1994); United States v. Tarpley, 945 F.2d 806, 809 (5th Cir. 1991), cert. denied, 504 U.S. 917 (1992); Bonsignore v. City of N.Y., 683 F.2d 635, 638–39 (2d Cir. 1982); Layne v. Sampley, 627 F.2d 12, 13 (6th Cir. 1980); Stengel v. Belcher, 522 F.2d 438, 440–41 (6th Cir. 1975), cert. dismissed, 429 U.S. 118 (1976).
  17. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (citations, quotation marks, and brackets omitted).
  18. See Georgia v. McCollum, 505 U.S. 42 (1992) (criminal defense attorney’s exercise of race-based preemptory challenge); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (private civil litigants’ exercise of race-based preemptory challenge); West v. Atkins, 487 U.S. 42 (1988) (private physician’s provision of medical care to inmates). See also Brentwood Acad., 531 U.S. 288 (2001).
  19. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378 (1995) (quoting Edmonson, 500 U.S. at 632 (O’Connor, J., dissenting)).
  20. 365 U.S. 715 (1961).
  21. See Moose Lodge v. Irvis, 407 U.S. 163, 175 (1972) (describing Burton).
  22. Rendell-Baker v. Kohn, 457 U.S. 830, 831 (1982); Blum v. Yaretsky, 457 U.S. 991, 1011 (1982).
  23. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 57 (1999). See also Crissman v. Dover Downs, 289 F.3d 231, 242 (3d Cir.), cert. denied, 537 U.S. 886 (2002) (Burton “was crafted for the unique set of facts presented”).
  24. Flagg Bros. v. Brooks, 436 U.S. 149, 157–58 (1978); Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
  25. Terry v. Adams, 345 U.S. 461, 469 (1953).
  26. See discussion in Jackson, 419 U.S. at 353.
  27. 487 U.S. 42 (1988).
  28. See Am. Mfrs., 526 U.S. at 55–58 (discussing West). See also Fabrikant v. French, 691 F.3d 193 (2d Cir. 2012) (relying partly on West, holding county SPCA’s sterilization of pets was state action under “public function test” although entitled to qualified immunity because due process rights asserted weren’t clearly established).
  29. Am. Mfrs., 526 U.S. at 55.
  30. Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).
  31. Blum v. Yaretsky, 457 U.S. 991, 993 (1982).
  32. S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 544 (1987). See also NCAA v. Tarkanian, 488 U.S. 179, 197 n.18 (1988).
  33. Flagg Bros. v. Brooks, 436 U.S. 149, 159–60 (1978).
  34. Hudgens v. NLRB, 424 U.S. 507, 519 (1976).
  35. Jackson v. Metro. Edison Co., 419 U.S. 345, 352–53 (1974).
  36. Blum, 457 U.S. at 1004.
  37. Flagg Bros., 436 U.S. at 164; Jackson, 419 U.S. at 354.
  38. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999).
  39. See, e.g., Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892 (9th Cir. 2008) (mere fact private business employees summoned police did not render private employees state actors); Ginsberg v. Healey Car & Truck Leasing, 189 F.3d 268, 271–72 (2d Cir. 1999).
  40. NCAA v. Tarkanian, 488 U.S. 179, 193–94 (1988). See also Gibson v. Regions Fin. Corp., 557 F.3d 842, 846 (8th Cir. 2009) (“. . . the mere furnishing of information to a law enforcement officer, even if the information is false, does not constitute joint activity with state officials”).
  41. Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982); Blum, 457 U.S. at 1008; Jackson, 419 U.S. at 350.
  42. Rendell-Baker, 457 U.S. at 840 (no state action even though educational institution received almost all of its funding from state). See also Jackson, 419 U.S. at 351–52 (state grant of monopoly power).
  43. See Rendell-Baker, 457 U.S. at 840–41 (school); Blum, 457 U.S. at 1008 (nursing home); Jackson, 419 U.S. at 350–54 (utility company).
  44. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982); Dennis v. Sparks, 449 U.S. 24, 27–28 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970).
  45. 449 U.S. 24 (1980).
  46. A court’s issuance of a judgment is clearly state action. Shelley v. Kraemer, 334 U.S. 1, 14–20 (1948). However, “merely resorting to the courts and being on the winning side of a lawsuit does not make a party a co-conspirator or a joint actor with the judge.” Sparks, 449 U.S. at 28.
  47. 488 U.S. 179 (1988).
  48. Flagg Bros. v. Brooks, 436 U.S. 149, 164–66 (1978).
  49. Lugar, 457 U.S. at 939–42.
  50. 457 U.S. 922 (1982).
  51. Id. at 937. The Court in Lugar explained that in this context the alleged “deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the state is responsible.” Id. A private party who misused or abused the state process does not engage in state action. Id. at 941. In a footnote, the Court stated that its analysis was limited to prejudgment seizures of property. Id. at 939 n.21. The lower federal courts have generally been reluctant “to extend the relatively low bar of Lugar’s so-called ‘joint action’ test outside the context of challenged prejudgment attachment or garnishment proceedings.” Revis v. Meldrum, 489 F.3d 273, 289 (6th Cir. 2007). Repossession Cases: The joint action issue arises in cases involving a private party’s repossession of property in which a law enforcement officer plays some role. See, e.g., Hensley v. Gassman, 693 F.3d 681, 688–92 (6th Cir. 2012); Cochran v. Gilliam, 656 F.3d 300, 308 (6th Cir. 2011). The Eighth Circuit stated that “there is no state action if the officer merely keeps the peace, but there is state action if the officer affirmatively intervenes to aid the repossessor enough that the repossession would not have occurred without the officer’s help.” Moore v. Carpenter, 404 F.3d 1043, 1046 (8th Cir. 2005). For an insightful analysis of the issue, see Barrett v. Harwood, 189 F.3d 297, 302 (2d Cir. 1999) (case law doesn’t provide “bright line” but “spectrum” of police involvement in repossession), cert. denied, 530 U.S. 1262 (2000). Shoplifting Cases: In shoplifting cases, the prevailing view is the store’s detention of a suspected shoplifter is state action only if the store and police have a “prearranged plan” pursuant to which the police agree to arrest anyone identified by the store as a shoplifter. See, e.g., Boykin v. Van Buren Twp., 479 F.3d 444, 452 (6th Cir. 2007). See also authorities cited in 1 Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses § 5.16[A] (4th ed. 2014).
  52. 531 U.S. 288 (2001).
  53. See Brentwood Academy, 531 U.S. at 314 (Thomas, J., dissenting) (“majority never defines ‘entwinement’ . . .”).
  54. See, e.g., Chudacoff v. Univ. Med. Ctr., 649 F.3d 1143 (9th Cir. 2011); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169 (6th Cir. 2008). For other decisions, see Schwartz, supra note 783, § 5.17[B].