Contrary to the outcome of most legal research assignments, a few minutes digging provided a bright-line answer to the topic for discussion. However, the answer is perplexing even amongst practitioners wholly devoted to practicing employment law.
The short answer is the state, its agencies, and its actors in their official capacity are not a “Person” under 42 U.S.C. § 1983, while municipalities and their actors in any capacity and state actors in their individual capacity are considered a “Person.”
Most employment attorneys will balk at this contention; I know I did. We’ve all read articles and cases about a Plaintiff pursuing cases and recovering against law enforcement agencies and individual officers on excessive force theories brought under 42 U.S.C. § 1983. A logical question follows: If sheriff and police departments and their deputies and officers are an arm of the government who can be sued under 42 U.S.C. § 1983 claims, then why can’t the state, its agencies and its actors such as law enforcement officers be sued? It would seem that if the local sheriff’s office is a “Person” under 42 U.S.C. 1983, then the state agency should also be considered a “Person.” The Supreme Court cleared this addressed this issue back in the late seventies and eighties.
In order to state a prima facie claim for deprivation of civil rights under 42 U.S.C. § 1983, a Plaintiff must show: (1) he/she was deprived of a right secured by the Constitution and laws of the United States, and (2) the persondepriving the plaintiff of that right acted “under color of state law.” See42 U.S.C. § 1983.
In Monell v. Department of Social Services, 436 U.S. 658 (1978), the United States Supreme Court held “a local government is a ‘person’ that can be sued under [42 U.S.C. § 1983].” However, a decade later, the Court made it clear states are not “persons” who can be sued under § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 58 (1989).
How do we rectify the Court’s holdings between these two cases? Why is a local government subject to suit under 42 U.S.C. § 1983, but a state government isn’t? There must be a logical reason to explain the Court’s holding. Could it be based on sovereign immunity under the 11thAmendment of the United States Constitution?
The 11thAmendment provides a state enjoys sovereign immunity from lawsuits in federal court. The 11thAmendment does not extend to municipalities. Thus, it seems to logically follow a state can’t be sued under 42 U.S.C. § 1983, but a municipality can because states enjoy sovereign immunity whereas municipalities do not. However, this was not the Court’s reasoning for its decision in Will.
It’s easy to get distracted by 11th Amendment sovereign immunity here. To be clear, sovereign immunity under the 11thAmendment means states can’t be sued in federal court without their consent. Sovereign immunity does not mean states can’t be sued in state court under federal causes of action without their consent. So then why can’t a state be sued in state court under 42 U.S.C. § 1983?
The Court’s distinction in Willis not drawn solely because states enjoy sovereign immunity under the 11thAmendment, but rather because a state is not a “person.” It is true the Court considered sovereign immunity as the dominant factor in its analysis of whether the state is a person. However, the Court in Willfocused on the plain language and legislative history behind 42 U.S.C. § 1983 in determining congress simply did not intend to abrogate the states’ sovereign immunity in its enactment of 42 U.S.C. § 1983 or it would have expressly said so. Accordingly, the word person in 42 U.S.C. § 1983 does not include states.