The Law Office of Maha A. ELKolalli, P.L. litigates cases on behalf on children and disabled individuals who were injured while in foster care or in the care of the state.

To prevail in a claim under section 1983, the plaintiff must prove two critical issues: a person subjected the plaintiff to conduct that occurred under color of state law, and this conduct deprived the plaintiff of rights, privileges, or immunities guaranteed under federal law or the U.S. Constitution.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.- U.S. Code › Title 42 › Chapter 21 › Subchapter I › § 1983

A state is not a “person” under section 1983, but a city is a person under the law Similarly, state officials sued in their official capacities are not deemed persons under section 1983, but if sued in their personal capacities, they are considered to be persons. Thus if a plaintiff wants to bring a section 1983 claim against a state official, she or he must name the defendants in their personal capacity and not in their professional capacity.

The Supreme Court has broadly construed the provision “under color of any statute” to include virtually any state action including the exercise of power of one “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law”. Thus, the wrongdoer’s employment by the government may indicate state action, although it does not conclusively prove it. Even if the wrongdoer did not act pursuant to a state statute, the plaintiff may still show that the defendant acted pursuant to a “custom or usage” that had the force of law in the state.

A successful section 1983 claim also requires a showing of the deprivation of a constitutional or federal statutory “right.” This showing is required because section 1983 creates a remedy when rights are violated but does not create any rights itself. It is not enough to show a violation of a federal law because all federal laws do not necessarily create federal rights.

A section 1983 plaintiff is also required to prove that a federal right was violated and that the alleged violation was a proximate or legal cause of the damages that the plaintiff suffered.

The Civil Rights Attorney’s Fee Awards Act of 1976 (42 U.S.C.A. § 1988[b]) allows for the award of reasonable attorneys’ fees to the prevailing party in cases brought under various federal civil rights laws, including section 1983. This provision applies whether or not compensatory damages were awarded. This provision also applies whether the plaintiff or the defendant prevails. However, if the defendant is the prevailing party, attorneys’ fees have been held to be appropriate only where the lawsuit was “vexatious, frivolous, or brought to harass or embarrass the defendant”.