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[Plaintiff] must prove both of the following elements by a preponderance of the evidence:

First: [Defendant] acted under color of state law.

Second: While acting under color of state law, [defendant] deprived [plaintiff] of a federal [constitutional right] [statutory right].

I will now give you more details on action under color of state law, after which I will tell you the elements [plaintiff] must prove to establish the violation of [his/her] federal [constitutional right] [statutory right].

COMMENT “By the plain terms of § 1983, two – and only two – allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); see also, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (“A prima facie case under § 1983 requires a plaintiff to demonstrate: (1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law.”).

Some authorities include in the elements instruction a statement that the plaintiff must prove that the defendant’s acts or omissions were intentional. See, e.g., Ninth Circuit Civil Instruction 11.1. It is not clear, however, that the elements instruction is the best place to address the defendant’s state of mind. “Section 1983 itself ‘contains no state of mind requirement independent of that necessary to state a violation’ of the underlying federal right.... In any § 1983 suit, however, the plaintiff must establish the state of mind required to prove the underlying violation.” Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 405 (1997) (quoting Daniels v. Williams, 474 U.S. 327, 330 (1986)); see also Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994) (noting that “section 1983 does not include any mens rea requirement in its text, but the Supreme Court has plainly read into it a state of mind requirement specific to the particular federal right underlying a § 1983 claim”). Because the mens rea requirement will depend on the nature of the constitutional violation, the better course is to address the requirement in the instructions on the specific violation(s) at issue in the case.

Some authorities include, as a third element, a requirement that the defendant caused the plaintiff’s damages. See, e.g., Fifth Circuit Civil Instruction 10.1; Eleventh Circuit Civil Instruction 2.2. It is true that the plaintiff cannot recover compensatory damages without showing that the defendant’s violation of the plaintiff’s federal rights caused those damages. See Instruction 4.8.1, infra. It would be misleading, however, to consider this an element of the plaintiff’s claim: If the plaintiff proves that the defendant, acting under color of state law, violated the plaintiff’s federal right, then the plaintiff is entitled to an award of nominal damages even if the plaintiff cannot prove actual damages. See infra Instruction 4.8.2.

If the Section 1983 claim asserts a conspiracy to deprive the plaintiff of civil rights,12 additional instructions will be necessary. See, e.g., Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999) (“In order to prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under color of state law conspired to deprive him of a federally protected right.”); Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000) (“To state a section 1983 conspiracy claim, a plaintiff must allege: (1) the existence of a conspiracy involving state action; and (2) a depravation [sic] of civil rights in furtherance of the conspiracy by a party to the conspiracy.”); see also Avery, Rudovsky & Blum,13 Instructions 12:31, 12:32, 12:33, & 12:43 (providing suggested instructions regarding a Section 1983 conspiracy claim).

(Last Updated July 2019)


12 Such a claim should be distinguished from the use of evidence of a conspiracy in order to establish that a private individual acted under color of state law. See infra Instruction 4.4.3.
13 MICHAEL AVERY, DAVID RUDOVSKY & KAREN BLUM, POLICE MISCONDUCT: LAW AND LITIGATION §§ 12:31, 12:32, 12:33, & 12:43 (updated Oct. 2005) (available on Westlaw in the POLICEMISC database).

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