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66If you find that [plaintiff] was deprived of [describe federal right], [municipality] is liable for that deprivation if [plaintiff] proves by a preponderance of the evidence that the deprivation resulted from [municipality’s] official policy or custom – in other words, that [municipality’s] official policy or custom caused the deprivation.
[It is not enough for [plaintiff] to show that [municipality] employed a person who violated [plaintiff’s] rights. [Plaintiff] must show that the violation resulted from [municipality’s] official policy or custom.] “Official policy or custom” includes any of the following [include any of the following theories that are warranted by the evidence]:
• a rule or regulation promulgated, adopted, or ratified by [municipality’s] legislative body;
• a policy statement or decision that is officially made by [municipality’s] [policy making official];
• a custom that is a widespread, well settled practice that constitutes a standard operating procedure of [municipality]; or
• [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. However, [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy] does not count as “official policy or custom” unless the [municipality] is deliberately indifferent to the fact that a violation of [describe the federal right] is a highly predictable consequence of the [inadequate training] [inadequate supervision] [inadequate screening during the hiring process] [failure to adopt a needed policy]. I will explain this further in a moment.
I will now proceed to give you more details on [each of] the way[s] in which [plaintiff] may try to establish that an official policy or custom of [municipality] caused the deprivation.
COMMENT “[M]unicipalities and other local government units [are] included among those persons to whom § 1983 applies.” Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690 (1978) (overruling in relevant part Monroe v. Pape, 365 U.S. 167 (1961)). However, “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691.67 “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.” Id. at 694.68 The Court has elaborated several ways in which a municipality can cause a violation and thus incur liability. See Instructions 4.6.4 - 4.6.8 and accompanying Comments for further details on each theory of liability.
Ordinarily, proof of municipal liability in connection with the actions of ground-level officers will require, inter alia, proof of a constitutional violation by one or more of those officers.69 See, e.g., Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (“There cannot be an ‘award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. ’”) (quoting City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam)). In Fagan v. City of Vineland, however, the court held that “a municipality can be liable under section 1983 and the Fourteenth Amendment for a failure to train its police officers with respect to high speed automobile chases, even if no individual officer participating in the chase violated the Constitution.” Fagan v. City of Vineland, 22 F.3d 1283, 1294 (3d Cir. 1994). A later Third Circuit panel suggested that the court erred in Fagan when it dispensed with the requirement of an underlying constitutional violation. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 n.13 (3d Cir. 1995) (“It appears that, by focusing almost exclusively on the ‘deliberate indifference’ prong... , the panel opinion did not apply the first prong – establishing an underlying constitutional violation.”). It appears that the divergence between Fagan and Mark reflects a distinction between cases in which the municipality’s liability is derivative of the violation(s) by the ground-level officer(s) and cases in which the plaintiff seeks to show that the municipality’s conduct itself is unconstitutional: As the court explained in Grazier, “We were concerned in Fagan that, where the standard for liability is whether state action ‘shocks the conscience,’ a city could escape liability for deliberately malicious conduct by carrying out its misdeeds through officers who do not recognize that their orders are unconstitutional and whose actions therefore do not shock the conscience.” Grazier, 328 F.3d at 124 n.5 (stating that the holding in Fagan was “carefully confined... to its facts: a substantive due process claim resulting from a police pursuit,” and holding that Fagan did not apply to “a Fourth Amendment excessive force claim”). See also Thomas v. Cumberland County, 749 F.3d 217 (3d Cir. 2014) (reversing a grant of summary judgment for county, even though the two individual officer defendants prevailed, without discussing whether the county’s liability requires proof of a constitutional violation by an individual officer); Barna v. Board of School Directors of the Panther Valley School District, 877 F.3d 136, 145, n.6 (3d Cir. 2017) (stating that “‘precedent in our circuit requires the district court to review the plaintiffs’ municipal liability claims independently of the section 1983 claims against the individual... officers.’”) (quoting Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996)); Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945 (2018) (holding that a plaintiff suing a municipality for arresting him in retaliation for his exercise of First Amendment rights, where municipal liability was predicated on a policy adopted by the municipal legislators, need not show that the arrest was without probable cause, while reserving the question whether probable cause would defeat a First Amendment retaliation claim against an individual officer).
In addition to showing the existence of an official policy or custom, plaintiff must prove “that the municipal practice was the proximate cause of the injuries suffered.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). “To establish the necessary causation, a plaintiff must demonstrate a ‘plausible nexus’ or ‘affirmative link’ between the municipality's custom and the specific deprivation of constitutional rights at issue.” Id. (quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985); and Estate of Bailey by Oare v. County of York, 768 F.2d 503, 507 (3d Cir.1985), overruled on other grounds by DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)); see also Bielevicz, 915 F.2d at 851 (holding that “plaintiffs must simply establish a municipal custom coupled with causation – i.e., that policymakers were aware of similar unlawful conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part, led to their injury”); Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (“There must be ‘a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. ’”) (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 214 (3d Cir. 2001) (quoting Canton, 489 U.S. at 385)). “As long as the causal link is not too tenuous, the question whether the municipal policy or custom proximately caused the constitutional infringement should be left to the jury.” Bielevicz, 915 F.2d at 851. “A sufficiently close causal link between... a known but uncorrected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom.” Id. (quoting Spell v. McDaniel, 824 F.2d 1380, 1391 (4th Cir. 1987)); see also A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 582 (3d Cir. 2004) (“The deficiency of a municipality's training program must be closely related to the plaintiff's ultimate injuries.”).
In the case of claims (such as failure-to-train claims) that require proof of deliberate indifference, evidence that shows deliberate indifference will often help to show causation as well. Reflecting on failure-to-train cases, the Court has observed:
The likelihood that the situation will recur and the predictability that an officer lacking specific tools to handle that situation will violate citizens' rights could justify a finding that policymakers' decision not to train the officer reflected "deliberate indifference" to the obvious consequence of the policymakers' choice – namely, a violation of a specific constitutional or statutory right. The high degree of predictability may also support an inference of causation – that the municipality's indifference led directly to the very consequence that was so predictable. Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 409-10 (1997).
This Instruction, as well as Instruction 4.6.7, treats inadequate training and supervision claims as types of policy claims. In explaining how a municipality can be held liable for inadequate training, the Supreme Court stated:
Monell’s rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent “city policy.” It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury. City of Canton, Ohio v. Harris, 489 U.S. 378, 389–90 (1989) (footnotes omitted). See also Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other grounds, 575 U.S. 822 (2015) (“‘Failure to’ claims — failure to train, failure to discipline, or, as is the case here, failure to supervise — are generally considered a subcategory of policy or practice liability.”).
In Forrest v. Parry, 930 F.3d 93, 105–06 (3d Cir. 2019), the Court of Appeals sharply distinguished between (1) policy or custom claims and (2) failure to train or supervise claims:
[A] § 1983 claim against a municipality may proceed in two ways. A plaintiff may put forth that an unconstitutional policy or custom of the municipality led to his or her injuries, or that they were caused by a failure or inadequacy by the municipality that “reflects a deliberate or conscious choice.”
Plaintiffs that proceed under a municipal policy or custom theory must make showings that are not required of those who proceed under a failure or inadequacy theory, and vice versa. Notably, an unconstitutional municipal policy or custom is necessary for the former theory, but not for the latter, failure or inadequacy theory.... On the other hand, one whose claim is predicated on a failure or inadequacy has the separate, but equally demanding requirement of demonstrating a failure or inadequacy amounting to deliberate indifference on the part of the municipality.... Although we have acknowledged the close relationship between policy-and-custom claims and failure-or-inadequacy claims [citing Barkes], the avenues remain distinct: a plaintiff alleging that a policy or custom led to his or her injuries must be referring to an unconstitutional policy or custom, and a plaintiff alleging failure-to-supervise, train, or discipline must show that said failure amounts to deliberate indifference to the constitutional rights of those affected. 930 F.3d at 105–06.
Forrest found plain error in a jury instruction, in part because the instruction created “confusion as to whether the policy or custom finding is antecedent to reaching the deliberate indifference inquiry, or if the two are intertwined in some other way.” Id. at 118.
In light of Forrest, a district court might consider avoiding such confusion by keeping any instruction on a policy or custom claim distinct from any instruction on an inadequate training or supervision claim. It may not be necessary for a jury to know that an inadequate training or supervision claim can be understood as a species of policy claim. After all, the Harris opinion itself observed that it “may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees.” 489 U.S. at 389–90.
(Last Updated July 2019)
66 Where the jury is being instructed on a theory of inadequate training or supervision, consider omitting this sentence. See discussion in the Comment of Forrest v. Parry, 930 F.3d 93 (2019).
67 Consider omitting this paragraph in order to keep instructions about policy and custom claims separate from instructions about inadequate training or supervision claims addressed in Instruction 4.6.7. See discussion in the Comment of Forrest v. Parry, 930 F.3d 93 (2019).
68 A suit against a municipal policymaking official in her official capacity is treated as a suit against the municipality. See A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 580 (3d Cir. 2004).
A similar principle applies to claims against a private corporation providing medical services under contract with a state prison system. Palakovic v. Wetzel, 854 F.3d 209, 232 (3d Cir. 2017) (holding that to state such a claim, “a plaintiff must allege a policy or custom that resulted in the alleged constitutional violations at issue”) (citing Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003)).
“Monell’s ‘policy or custom’ requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective.” Los Angeles County v. Humphries, 131 S. Ct. 447, 453-54 (2010).
69 See, e.g., Vargas v. City of Philadelphia, 783 F.3d 962, 975 (3d Cir. 2015) (“Because the officers did not violate any of her constitutional rights... there was no violation for which the City of Philadelphia could be held responsible.”); Mulholland v. Government County of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-settled that, if there is no violation in the first place, there can be no derivative municipal claim.”); id. at 244 n.24 (“Given our disposition of the underlying substantive due process claim... we need not address the Monell analysis....”); Startzell v. City of Philadelphia, 533 F.3d 183, 204 (3d Cir. 2008) (“Because we have found that there was no violation of Appellants' constitutional rights, we need not reach the claim against the City under Monell.”).