Section 1983 Litigation/Monetary Relief

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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

Section 1983 authorizes the imposition of liability “in an action at law, suit in equity, or other proper proceeding for redress . . . .” The full range of common-law remedies “at law” and “in equity” is available to a plaintiff asserting a claim under § 1983. Legal relief may take the form of nominal, compensatory, and punitive damages. Claims for damages may raise a large range of issues, including limitations on the right to recover punitive damages, the validity of release-dismissal agreements, the right to indemnification, and limitations on prisoner remedies in the Prison Litigation Reform Act. The various issues pertaining to monetary relief are discussed in the subsections below.

Nominal and Compensatory Damages[edit | edit source]

“When § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts.”[1] The Supreme Court has pointed out, however, that “[t]he rule of damages . . . is a federal rule responsive to the need whenever a federal right is impaired.”[2]

Compensatory damages generally fall into one of two categories: special or general. Special damages relate to specific pecuniary losses, such as lost earnings, medical expenses, and loss of earning capacity. General damages include compensation for physical pain and suffering, as well as emotional distress.[3] Nominal damages are awarded for the violation of a right with no proven actual injury.

In Carey v. Piphus[4] and Memphis Community School District v. Stachura,[5] the Supreme Court held that compensatory damages for a constitutional violation under § 1983 must be based on proof of the actual injuries suffered by the plaintiff. In both cases, the Court ruled that when a § 1983 plaintiff suffers a violation of constitutional rights, but no actual injuries, she is entitled to an award of only $1 in nominal damages.[6]

In Carey, the Court held that “although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.”[7] Thus, actual damages will not be presumed in a procedural due process case and, without proof of damages, the plaintiff will be entitled only to “nominal damages not to exceed one dollar.”[8] The Court noted that the primary purpose of the damages remedy in § 1983 litigation is “to compensate persons for injuries caused by the deprivation of constitutional rights.”[9] Actual damages caused by a denial of procedural due process may be based on either the emotional distress caused by the denial of fair process, or by an unjustifiable deprivation of liberty or property attributable to lack of fair process.[10]

In Stachura, the Court extended its holding in Carey to the violation of a plaintiff’s First Amendment rights. It held that “damages based on the abstract ‘value’ or ‘importance’ of constitutional rights are not a permissible element of compensatory damages” in § 1983 cases.[11] The problem was that the district court’s jury instructions allowed for an award of damages that was neither compensatory nor punitive, but was based solely on the perceived “value” or “importance” of the particular constitutional right violated.[12] The Court distinguished the line of common-law voting rights cases awarding presumed damages “for a nonmonetary harm that cannot easily be quantified.”[13] Thus, while presumed damages ordinarily will not be available in § 1983 actions, presumed damages may be appropriate “[w]hen a plaintiff seeks compensation for an injury that is likely to have occurred but difficult to establish.”[14] A model jury instruction for § 1983 compensatory damages is in the Appendix (see infra Model Instruction 7).

Causation[edit | edit source]

Common-law tort proximate cause principles apply to compensatory damages under § 1983. Therefore, “[a] successful § 1983 plaintiff . . . must establish not only that a state actor violated his constitutional rights, but also that the violation caused the plaintiff injury or damages.”[15] The district court should include this proximate cause principle in its instructions concerning compensatory damages.[16]

Under the common-law “eggshell skull” doctrine, which applies in § 1983 actions, a “tortfeasor takes his victim as he finds him, and if a special vulnerability [e.g., a thin skull] leads to an unusually large loss, the wrong doer is fully liable.”[17]

Rule Against Double Recovery[edit | edit source]

Section 1983 complaints frequently assert multiple constitutional claims against multiple defendants. Under the “rule against double recovery” the plaintiff is entitled to be made whole and compensated once for her injuries.[18] The district court’s instructions and verdict form should guard against duplicative recovery by stressing that the jury “may not compensate [plaintiff] twice for any [injuries] she might have suffered.”[19]

Duty to Mitigate Damages[edit | edit source]

Like common-law tort plaintiffs, § 1983 plaintiffs are required to take reasonable steps to mitigate their damages.[20] The burden is on the defendant to show that the plaintiff has not mitigated her damages.[21] The question is one of fact for the jury.[22]

Punitive Damages[edit | edit source]

In Smith v. Wade,[23] the Supreme Court held that a § 1983 plaintiff may recover punitive damages against an official in her personal capacity if the official acted with malicious or evil intent or in callous disregard of the plaintiff’s federally protected rights.[24] “Although the specific intent to violate plaintiff’s federally protected right will support a punitive damages award, ‘reckless indifference’ towards a plaintiff’s federally protected right also suffices to authorize liability for punitive damages under § 1983.”[25] The Smith standard does not require a showing that the defendant engaged in “egregious” misconduct.[26] The majority view in the courts of appeals is that punitive damages may be awarded even when the plaintiff recovers only nominal damages.[27] If a reasonable jury could find that the defendant acted with malice or callous indifference, the district judge should submit the issue of punitive damages to the jury under proper instructions.[28] The courts in § 1983 cases hold that the burden is on the defendant to introduce evidence of his financial circumstances.[29] When there are multiple defendants the district court should clearly instruct the jury “that each individual defendant’s actions and fault must serve as the basis for fashioning an appropriate punitive damages award.”[30]

In City of Newport v. Fact Concerts, Inc.,[31] the Supreme Court held that punitive damages cannot be awarded against a municipal entity. The Court found that municipal entities are immune from punitive damages under § 1983. Nor may punitive damages be awarded under § 1983 against a state entity. Eleventh Amendment state sovereign immunity bars a federal court award of punitive damages payable out of the state treasury.[32] Furthermore, states and state entities are not suable “persons” within the meaning of § 1983.[33]

The district court is authorized to review a jury award of punitive damages under common-law principles to determine whether it is so high as to shock the judicial conscience,[34] as well as under substantive due process to determine whether the amount of the award is “grossly excessive.”[35] The First Circuit observed that “[c]ourts rarely apply the common law excessiveness standard to punitive damages these days, since aggrieved defendants now commonly invoke the arguably stricter due process standard.”[36]

Supreme Court decisional law holds that “grossly excessive” punitive damage awards violate substantive due process.[37] To determine whether the award is “grossly excessive,” consideration must be given to (1) the degree of reprehensibility of the defendant’s conduct—the most important factor; (2) the ratio between the harm or potential harm to the plaintiff and the punitive damages award; and (3) the disparity between the punitive damages award and civil penalties authorized or imposed in comparable cases.[38] “[I]n practice, few [punitive damages] awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”[39] However, a larger ratio “may comport with due process when a particularly egregious act has resulted in only a small amount of economic damages.”[40]

In Phillip Morris USA v. Williams,[41] the Supreme Court held that due process prohibits a punitive damages award that punishes the defendant for injuries inflicted by the defendant upon nonparties. It acknowledged, however, that the defendant’s infliction of harm upon others may be relevant in assessing the reprehensibility of the defendant’s conduct. “Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible. . . .”[42] The Court said that trial judges must take steps—presumably the issuance of proper jury instructions— designed to ensure that the defendant’s other wrongs are considered solely on the issue of reprehensibility, and are not relied on by the jury to punish the defendant directly.

In the author’s view, it is questionable whether the trial court will be able to formulate an effective instruction to carry out this goal because it seems unlikely that the jury will be able to comprehend how the defendant’s other wrongs may be considered in evaluating the reprehensibility of his conduct, but not in determining the amount of punitive damages.[43] Furthermore, because one of the purposes of punitive damages is to deter unlawful conduct, it would seem that the jury should know whether the defendant has engaged in similar wrongdoing in the past. In other words, higher punitive damages are more likely to be necessary to deter a repeat offender than an isolated wrongdoer. The Supreme Court’s punitive damages substantive due process principles apply in § 1983 actions.[44] A model jury instruction for a § 1983 claim for punitive damages is in the Appendix (see infra Model Instruction 8).

Release-Dismissal Agreements[edit | edit source]

Section 1983 damage claims may be settled, waived, or released. The validity of a settlement, waiver, or release of a § 1983 claim depends on whether it is voluntary, informed, and not contrary to public policy.[45] A recurring issue in § 1983 actions concerns the validity of “release-dismissal agreements” pursuant to which law enforcement authorities agree to dismiss criminal charges in exchange for the release of § 1983 claims. In Town of Newton v. Rumery,[46] the Supreme Court held that these agreements are not automatically invalid. Rather, the validity of a release-dismissal agreement should be evaluated on a case-by-case basis to determine whether the agreement (1) was voluntary, (2) was the product of prosecutorial overreaching or other misconduct, and (3) adversely affects the public interest.

Indemnification[edit | edit source]

An important issue in many § 1983 cases is whether the relevant governmental entity will indemnify the defending official for her monetary liability. Indemnification is not covered by federal law; it is strictly a matter of state or local law.[47] Some of the issues that may arise in federal court § 1983 actions are whether there is supplemental jurisdiction over the indemnification claim and, if so, whether the federal court should exercise that jurisdiction;[48] the meaning and application of state indemnification law;[49] and whether the jury should be informed about indemnification. Although most courts hold that indemnification is akin to insurance, and should be shielded from the jury,[50] the author believes that it is better to inform jurors about the reality of indemnification.[51]

Prison Litigation Reform Act[edit | edit source]

In any action involving prisoners’ rights, there are likely to be substantial limitations placed on the availability and scope of the remedies sought. Although a comprehensive discussion of the various provisions of the Prison Litigation Reform Act (PLRA) is beyond the scope of this monograph, the importance of consulting the Act in appropriate cases cannot be overemphasized. For example, the PLRA precludes the bringing of a civil action by a prisoner “for mental or emotional injury suffered while in custody without a prior showing of physical injury.”[52] Exhaustion of administrative remedies is required in actions relating to prison conditions.[53] The availability of attorneys’ fees for prevailing prisoners is significantly restricted.[54] Injunctive relief in prison reform litigation must be narrowly drawn to remedy violations of federal rights.[55] Government officials may seek the immediate termination of all prospective relief that was awarded or approved before the enactment of the PLRA “in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right.”[56]

In Brown v. Plata,[57] the Supreme Court, 5–4, upheld orders of threejudge federal courts, after extensive litigation, requiring California to release as many as 46,000 prisoners to remedy severe, ongoing systemic constitutional violations, specifically, denial of adequate medical and mental health care attributable to severe and exceptional overcrowding in California prisons.

The order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served.[58]

The order does not require the actual release of prisoners; California may increase its prison capacity or transfer prisoners to other facilities, including in other states.

Some of the important PLRA provisions at issue in Brown, which the Court found satisfied, are:

  1. Under the PLRA, only a three-judge court may issue an order limiting a prison population. 18 U.S.C. § 3626 (a)(3)(B). Before a panel may be convened, the court must find, inter alia, that an order for less intrusive relief failed to remedy the constitutional violation.
  2. A remedy shall extend no further than necessary to remedy the violation of the federal rights of the plaintiff(s), shall be narrowly drawn, and is the least intrusive means necessary to correct the violation of the federal right. 18 U.S.C. § 3626(a)(1)(A).
  3. To support a prison population reduction order, the court must find by clear and convincing evidence that overcrowding is the primary cause of the violation of a federal right, and no other relief will remedy the violation. 18 U.S.C. § 3626(a)(3)(E)(i)(ii).

The Court stressed that overcrowding need only be the “primary cause” of a constitutional violation, meaning that it “need only be the foremost, chief, or principal cause of the violation”; it need not be the “only cause.”[59] The Court also emphasized that the federal courts have the responsibility and broad equitable powers to remedy constitutional violations.[60] It found that the extensive and ongoing violations of prisoners’ constitutional rights require a remedy, and the remedy will not be achieved without a reduction in overcrowding.

References[edit | edit source]

  1. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986).
  2. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240 (1969).
  3. See also Hendrick v. Cooper, 589 F.3d 887, 893 (7th Cir. 2009) (In prisoner excessive force case, jury was instructed that compensatory damages can cover “pain and suffering, inconvenience, mental anguish, shock and discomfort, and loss of enjoyment of life,” that “[n]o evidence of the dollar value of physical or mental emotional pain and suffering . . . needs to be introduced,” and that “[t]here is no exact standard for setting the damages to be awarded on account of pain and suffering. You are to determine an amount that will fairly compensate the plaintiff for the injury he has sustained.”).
  4. 435 U.S. 247 (1978) (procedural due process claim).
  5. 477 U.S. 299 (1986) (First Amendment claim).
  6. Stachura, 477 U.S. at 308 n.11; Carey, 435 U.S. at 267. See also Corpus v. Bennett, 430 F.3d 912, 916 (8th Cir. 2005) (“[O]ne dollar is recognized as an appropriate value for nominal damages.”). The Seventh Circuit held that nominal damages may be awarded even in a § 1983 excessive force case. Briggs v. Marshall, 93 F.3d 355, 359–60 (7th Cir. 1996). Accord Frizzell v. Szabo, 647 F.3d 698, 701–02 (7th Cir. 2011). A properly pleaded claim for nominal damages may avoid dismissal for mootness. Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 (5th Cir. 2009), cert. denied, 130 S. Ct. 3503 (2010); Dean v. Blumenthal, 577 F.3d 60, 66 (2d Cir. 2009). Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 69 (1997) (claim for nominal damages against state official in official capacity did not save case from mootness because § 1983 creates no remedy against a state).
  7. Carey, 435 U.S. at 264.
  8. Id. at 267.
  9. Id. at 254.
  10. Id. at 263–64 (mental and emotional distress actually caused by denial of procedural due process is compensable under § 1983).
  11. Stachura, 477 U.S. at 310.
  12. Id. at 310 n.13.
  13. Id. at 311 & 312 n.14.
  14. Id. at 310–11. In fact, it appears that presumed damages have rarely been awarded in § 1983 actions.
  15. Roe v. Elyea, 631 F.3d 843, 864 (7th Cir. 2011) (citing Harris v. Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007)).
  16. See Burke v. McDonald, 572 F.3d 51, 60 (1st Cir. 2009) (Holding, in a § 1983 action, that the district court properly instructed the jury on compensatory damages “as a matter of proximate cause. This approach to the issue is consistent with Supreme Court precedent emphasizing that liability under § 1983 flows against the defendant for all damages that are the ‘natural consequences of his actions.’” [Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986) (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)] …. “The district court’s instructions … properly and clearly explained the concept of proximate causation. …”).
  17. Cobige v. City of Chi., 651 F.3d 780, 782 (7th Cir. 2011) (citations omitted).
  18. Bender v. City of N.Y., 78 F.3d 787, 793–94 (2d Cir. 1996); Lewis v. Kendrick, 944 F.2d 949, 954 (1st Cir. 1991); Gilmere v. City of Atlanta, 864 F.2d 734, 740–41 (11th Cir.), cert. denied, 493 U.S. 817 (1989).
  19. 4 Martin A. Schwartz, Section 1983 Litigation: Jury Instructions, Instruction 18.05.3 (2d ed. 2014) (adapted from Bender v. City of N.Y., 78 F.3d 787, 794 n.5 (2d Cir. 1996) (Newman, J.)). See, e.g., Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 313 (7th Cir.) (instructions should clearly inform jury “not to duplicate damages”), cert. denied, 131 S. Ct. 643 (2010); Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010) (ruling district court did not err in failing to instruct jury that it is impermissible to award duplicative damages; no evidence of duplicative damages for false arrest and malicious prosecution). The jury was instructed on the legal distinctions between the two claims. It assessed damages against all five defendants on the false arrest claim, but only against [two defendants] on the malicious prosecution claim. That verdict demonstrates that the jury understood that separate conduct and harms correspond to the distinct claims. Accordingly, the defendants have not demonstrated that they were prejudiced by the district court’s decision not to give their proposed duplication damages instruction. Fox, 600 F.3d at 843 (citation omitted). See also Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508 (1st Cir. 2009) (plaintiff’s First Amendment retaliation and Equal Protection claims did not overlap; assuming arguendo that they did overlap, jury’s award of damages did not violate rule against double recovery because verdict form called for one damages award on all of plaintiffs’ constitutional claims; district court instructed jury to compensate plaintiff’s injuries just once). Specifically, the court instructed the jurors that they “must arrive at a sum of money that will justly, fairly and adequately compensate the plaintiffs for the actual pain, suffering and emotional distress [it] find[s] that they endured as a direct result of any constitutional deprivation, defamation, invasion of privacy or negligence.” It further explained that “[t]he damages that [it] award[s] must be fair compensation for all the plaintiffs damages, no more or no less.” Thus, even if the jury found that the same unlawful conduct and injury supported two theories of liability, there is no basis for assuming that the jury believed it was required to award plaintiffs a separate amount of damages for each claim. Guillemard-Ginorio, 585 F.3d at 532–35. See also Button v. Maloney, 196 F.3d 24, 32– 33 (1st Cir. 1999) (describing different ways district courts could handle double recovery problem).
  20. See, e.g., Miller v. Lovett, 879 F.2d 1066, 1070–71 (2d Cir. 1989).
  21. McClure v. Indep. Sch. Dist. No. 16, 228 F.3d 1205, 1214 (10th Cir. 2000).
  22. Hill v. City of Pontotoc, 993 F.2d 422, 426–27 (5th Cir. 1993).
  23. 461 U.S. 30 (1983).
  24. Punitive damages may also be based on “oppressive” conduct when the defendant misused authority or exploited the plaintiff’s weakness. Dang v. Cross, 422 F.3d 800, 809–11 (9th Cir. 2005). Right to Jury Trial: The Seventh Amendment guarantees the right to a jury trial on a claim for punitive damages. Jones v. UPS, Inc., 674 F.3d 1187, 1202–06 (10th Cir.) (non§ 1983), cert. denied, 133 S. Ct. 413 (2012).
  25. Powell v. Alexander, 391 F.3d 1, 19 (1st Cir. 2004).
  26. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 538–39 (1999).
  27. See, e.g., Cortes-Reyes v. Salas-Quintana, 608 F.3d 41, 53 (1st Cir. 2010) (upholding jury award of punitive damages even though district court awarded only nominal damages; noting, “jury may properly award punitive damages even if it awards no nominal or compensatory damages”); Campus-Orrego v. Rivera, 175 F.3d 89, 97 (1st Cir. 1999) (“[A]s a matter of federal law, a punitive damage award which responds to a finding of a constitutional breach may endure even though unaccompanied by an award of compensatory damages.” (footnote and citations omitted)); King v. Macri, 993 F.2d 294, 297–98 (2d Cir. 1993) (citing cases). See also Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2622 (2008) (non-§ 1983).
  28. See Cameron v. City of N.Y., 598 F.3d 50, 69 (2d Cir. 2010) (holding district court erred in not instructing jury on punitive damages; district court should instruct jury on punitive damages when plaintiff introduces some evidence defendant acted with notice or callous indifference).
  29. Schaub v. Von Wald, 638 F.3d 905, 926 (8th Cir. 2011); Tapalian v. Tusino, 377 F.3d 1, 8 (1st Cir. 2004); Mason v. Okla. Tpk. Auth., 182 F.3d 1212, 1214 (10th Cir. 1999); King v. Macri, 993 F.2d 294, 298 (2d Cir. 1993); Zarcone v. Perry, 572 F.2d 52, 56 (2d Cir. 1978). See also TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 462 n.28 (1993) (noting that it is “well settled” that defendant’s net worth is factor typically considered in assessing punitive damages); Acevedo-Luis v. Pagan, 478 F.3d 35, 39 (1st Cir. 2007) (proper to instruct jury “it could consider the defendant’s financial worth in assessing punitive damages”).
  30. Alexander v. City of Milwaukee, 474 F.3d 437, 454–55 (7th Cir. 2007).
  31. 453 U.S. 247 (1981).
  32. See supra Chapter 13.
  33. See supra Chapter 6.
  34. See Payne v. Jones, 711 F.3d 85, 96 (2d Cir. 2013).
  35. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).
  36. Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 30 (1st Cir. 2010). Nevertheless, in Mercado-Berrios the court evaluated the punitive damages award solely under common law standards, and found it excessive even under those standards. See also Payne, 711 F.3d at 96–97.
  37. Campbell, 538 U.S. at 416; BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562 (1996).
  38. Campbell, 538 U.S. at 416; Gore, 517 U.S. at 562. These three factors may also be considered under common-law review to determine whether an award of punitive damages is so high as to shock the judicial conscience. Payne v. Jones, 711 F.3d 85, 96–97 (2d Cir. 2013).
  39. Campbell, 538 U.S. at 425.
  40. Id. at 419 (quoting Gore, 517 U.S. at 582).
  41. 549 U.S. 346 (2007).
  42. Id. at 355.
  43. Id. at 379–80.
  44. See, e.g., Tapalian, 377 F.3d at 8–9; Williams v. Kaufman Cnty., 352 F.3d 994, 1016 (5th Cir. 2003); DiSorbo v. Hoy, 343 F.3d 172, 186 (2d Cir. 2003); Bogle v. McClure, 332 F.3d 1347, 1360 (11th Cir. 2003); Lee v. Edwards, 101 F.3d 805, 808–09 (2d Cir. 1996); Morgan v. Woessner, 997 F.2d 1244, 1256–57 (9th Cir. 1993), cert. dismissed, 510 U.S. 1033 (1994).
  45. 1B Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses, § 16.16[B] (4th ed 2014).
  46. 480 U.S. 386 (1985).
  47. See discussion in 1B Schwartz, supra note 1595, § 16.17.
  48. See, e.g., Allen v. City of L.A., 92 F.3d 842, 845–46 (9th Cir. 1996).
  49. See, e.g., Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085 (7th Cir. 1990).
  50. Fed. R. Evid. 408. See, e.g., Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994).
  51. See Martin A. Schwartz, Should Juries Be Informed that Municipality Will Indemnify for Constitutional Wrongdoing?, 86 Iowa L. Rev. 1209 (2001).
  52. 42 U.S.C. § 1997e(e) (2006). See, e.g., Al-Amin v. Smith, 637 F.3d 1192, 1199 n.9 (11th Cir. 2011) (noting circuit split on issue, holding PLRA physical injury requirement, 42 U.S.C. § 1997e(e), not limited to compensatory damages and applies also to punitive damages) (following Harris v. Garner, 216 F.3d 970 (11th Cir. 2000) (en banc)); Hutchins v. McDaniels, 512 F.3d 193, 195–98 (5th Cir. 2007) (PLRA physical injury requirement pertains to all constitutional rights, but not to nominal or punitive damages); Zehner v. Trigg, 133 F.3d 459, 464 (7th Cir. 1997) (upholding constitutionality of provision).
  53. 42 U.S.C. § 1997e(a) (2006). See supra Chapter 17.<span style="color:
  54. 42 U.S.C. § 1997e(d)(1)–(4) (2006). See 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation: Statutory Attorney’s Fees Ch. 1 (4th ed. 2014).
  55. 18 U.S.C. § 3626(a)(2) (2006).
  56. Id. § 3626(b)(2). See 1B Schwartz, supra note 1595, § 16.03[D].
  57. 131 S. Ct. 1910 (2011).
  58. Id. at 1923.
  59. Id. at 1936.
  60. Id. at 1944.