BlogsAll Blogs

Lite DePalma Greenberg Law Blog

Search our blog posts

Monell: Past Can Be PrologueSteven S. Glickman

When governmental entities are forced to defend against claims asserted under 42 U.S.C. §1983, the breadth and liberal interpretation of this statute renders defense difficult in the eyes of a jury.

Section 1983 reads, in pertinent part:

Any person who, under color of any law, statute, ordinance, regulation, custom or usage of any State, shall subject, or cause to be subjected, any person to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress. . . .”

Defense was made even more difficult in 1978 when the United States Supreme Court decided Monell v. Department of Social Services, 436 U.S. 658.

In Monell, plaintiffs alleged that the Department of Social Services (“Department”) was liable under 42 U.S.C. §1983 in that the Department discriminated against pregnant women as a matter of policy. The pertinent issue addressed in Monell was whether governmental entities were considered “persons” pursuant to 42 U.S.C. §1983.

In rendering the decision of the Court, Justice Brennan concluded that governmental entities could be held liable under 42 U.S.C. §1983 as follows:
We conclude, therefore, that a local government may not be sued under §1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government, as an entity, is responsible under §1983.

Governmental entities must be extremely careful and cognizant of the ramifications of Monell. It is critical for governmental entities to reduce its operational policies to writing, update these policies when necessary, draft new policies when warranted, distribute these policies to all personnel, periodically train all personnel on these policies, and document that all personnel were trained on these policies.

In addition to the above, governmental entities must establish a procedure for employees to file complaints of alleged discrimination. The procedure must not only provide a methodology for processing, investigating and acting on sustained complaints, but it must also be fairly and consistently applied.

Failure to properly implement any of the above processes could leave a governmental entity open to the unintended consequence that the governmental entity, while not through its own statutes and/or ordinances, has permitted a “custom or usage” to develop into an “official policy”. If this were to happen, then under Monell, the governmental entity could be liable for any injuries incurred pursuant to 42 U.S.C. §1983.