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Comparison: Individual Capacity vs Official Capacity


INDIVIDUAL CAPACITY

Official Liable
Official Pays


✓ Compensatory (Money) Damages available
✓ Injunctive Relief available
✓ Punitive Damages available
✓ Relief for Mental & Emotional Distress available
OFFICIAL CAPACITY

Agency Liable
Agency Pays


✓ Compensatory (Money) Damages available
✓ Declaratory Relief
✓ Injunctive Relief available
✓ Relief for Mental & Emotional Distress available

I. Definitions

Declaratory Judgment
"a judgment of the court to establish the rights of the parties or express the opinion of the court on a question of law, without ordering anything to be done or granting any remedy." Injunction
"a judicial remedy awarded to restrain a particular activity; first used by courts of equity to prevent conduct contrary to equity and good conscience. The injunction is a preventive measure to guard against future injuries, rather than one that affords a remedy for past injuries."

II. Legal Citations

42 USC §1983 | Civil Action for Deprivation of Rights
"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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia." 11th Amendment US Constitution | Judicial Limits
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Rule 17 Fed. R. Civ. P. | Plaintiff and Defendant; Capacity; Public Officers
(b) CAPACITY TO SUE OR BE SUED. Capacity to sue or be sued is determined as follows:
(1) for an individual who is not acting in a representative capacity, by the law of the individual’s domicile;

III. Judicial Application1

Individual Capacity
Who's Liable
Only the person being sued is responsible:
"an individual capacity claim is one where "the real party in interest is the individual, not the sovereign." Lewis, 137 S. Ct. at 1291. Individual capacity suits seek to impose only personal liability upon a government official, meaning the remedy in a successful individual capacity claim does not extend to the official's office. See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). This "means an individual capacity suit targets the individual behavior of an official . . . as he carries out his state duties." Clemons, 818 F. App'x at 872 (Grant, J., concurring)."
- Attwood v Clemons, 818 F. App'x 863 (11th Cir. 2020)

"Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. See, e.g., Scheuer v. Rhodes, 416 U. S. 232, 416 U. S. 237-238 (1974)..."

"Thus, while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself."
- Kentucky v Graham, 473 US 159 (1985)
Who Pays
In Individual Capacity lawsuits, the public official must pay (personally):

"With this distinction in mind, it is clear that a suit against a government officer in his or her personal capacity cannot lead to imposition of fee liability upon the governmental entity."
- Kentucky v Graham, 473 US 159 (1985)
What Damages are Available?
✓ Compensatory Damages
✓ Punitive Damages
✓ Injunctive Relief
✓ Mental & Emotional Distress

“mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983"
- Carey v Piphus, 435 US 247 (1978)

Why Invoke an 'Individual Capacity' Claim?
The Official's Successor Would Not Commit the Act:

“Because the complaint targets Clemons not as a proxy for the sovereign, but for personal conduct that will not be repeated by his successor-in-office, the suit involves only an individual capacity claim — and it is for that reason that Clemons may not invoke sovereign immunity."
- Attwood v Clemons, 818 F. App'x 863 (11th Cir. 2020)

The Official Broke the Law:

"... Besides, neither a State nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator. In such cases, the law of agency has no application -- the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction against the commission of acts causing irreparable injury."
- Pennhurst State Sch. v Halderman, 465 US 89 (1984)

Immunities
Qualified Immunity is available to government officials who are sued in their Individual Capacity:

“Under Owen v. City of Independence, 445 U.S. 622 . . . (1980), a municipality is not entitled to claim the qualified immunity that the city's agents can assert."
- Brandon v. Holt, 469 U.S. 464 (1985) 105 S. Ct. 873

Official Capacity
Who's Liable
Official Capacity suits compute to the officer's agency. In other words, suing someone in his/her official capacity is the same as suing the agency he/she works for:
"[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office... [a]s such, it is no different from a suit against the State itself."
- Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989)

"In at least three recent cases arising under § 1983, we have plainly implied that a judgment against a public servant "in his official capacity" imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond. We now make that point explicit."
- Brandon v. Holt, 469 U.S. 464 (1985) 105 S. Ct. 873

"official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent."
- Monell v. City of New York, 436 U.S. 658 n. 55 (1978)

"An official capacity claim may proceed only if "[t]he real party in interest is the government entity, not the named official." Lewis v. Clark, --- U.S. ---, 137 S. Ct. 1285, 1291, 197 L. Ed. 2d 631 (2017) (citing Edelman v. Jordan, 415 U.S. 651, 663-65 (1974))"
- Attwood v Clemons, 818 F. App'x 863 (11th Cir. 2020)

Who Pays
In Official Capacity lawsuits, the government agency must pay:

“since petitioners are sued in their official capacities, and since they are represented by the Attorney General, it is obvious that the award will be paid with state funds."
- Hutto v. Finney, 437 US 678 (1978)
What Damages are Available?
✓ Compensatory Damages
✓ Declaratory Relief
✓ Injunctive Relief
✓ Mental & Emotional Distress

“In such cases, two other circuit courts have held that § 1983 plaintiffs may recover substantial general money damages as compensation for the wrong. See Corriz v. Naranjo, 667 F.2d 892, 897-98 (10th Cir. 1981), cert. dismissed, ___ U.S. ___, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); Herrera v. Valentine, 653 F.2d 1220, 1227-31 (8th Cir. 1981)"
- Brandon v Allen, 719 F.2d 151 (1983)

“Absent waiver by a State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court, a bar that remains in effect when state officials are sued for damages in their official capacity."
- Kentucky v Graham, 473 US 159 (1985)

“mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983"
- Carey v Piphus, 435 US 247 (1978)

“Eleventh Amendment immunity does not bar prospective injunctive relief against official-capacity defendants. See Rosie D. v. Swift, 310 F.3d 230, 234 (1st Cir. 2002); Fred v. Roque, 916 F.2d 37, 39 (1st Cir. 1990)"
- Redondo-Borges v HUD, 421 F.3d (1st Cir. 2005)

“In an injunctive or declaratory action grounded on federal law, the State's immunity can be overcome by naming state officials as defendants. See Pennhurst State School & Hospital v. Halderman, 465 U. S. 89 (1984); see also Ex parte Young, supra. Monetary relief that is "ancillary" to injunctive relief also is not barred by the Eleventh Amendment. Edelman v. Jordan, supra, at 415 U. S. 667-668"
- Kentucky v Graham, 473 US 159 (1985)
Why Invoke an 'Official Capacity' Claim?
The Official's Successor Would Probably Commit the Act Also:

“an official capacity suit targets not the personal behavior of an official like Clemons, but his enforcement of, or action carrying out, a government policy. And the result of such a suit, if successful, is that both the current officeholder and any future officeholder will be barred from carrying out whatever policy is at issue."
- Attwood v Clemons, 818 F. App'x 863 (11th Cir. 2020)

The Unconstitutional Conduct Stems from a Policy/Rule/Custom:

“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."
- Monell v. City of New York, 436 U.S. 658 n. 55 (1978)

How is an 'Official Capacity' Claim Adjudicated?
Plaintiff must prove three elements:
(1) an official custom or policy exists;
(2) the plaintiff is subjected to the custom/policy;
(3) the custom/policy denies/deprives the plaintiff of a constitutional right


"plead and prove three elements: (1) an official custom or policy that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right"
- Batista v Rodriguez, 702 F. 2d 393 (2d Cir. 1983)

Immunities
The 11th Amendment (US Constitution) provides immunity against lawsuits on official capacity:2

“The Eleventh Amendment insulates a state from suit in federal court unless the state either consents to suit or waives its Eleventh Amendment immunity."
- Parker v. Williams, 862 F.2d at 1479


Bottom Line: Both doctrines can recover damages. Both doctrines have affirmative defenses.



Footnotes:
1Additional note: you can sue a government official in both capacities simultaneously
  (ie, in his/her individual capacity and his/her official capacity)
2Qualified Immunity is NOT available for official capacity lawsuits
  see Brandon v Holt, 469 US 464

IV. Quick Commentary

V. Additional Notes

Upon death:
individual capacity claims transfer to the estate
official capacity claims transfer to the officer's successor
"Should the official die pending final resolution of a personal-capacity action, the plaintiff would have to pursue his action against the decedent's estate. In an official-capacity action in federal court, death or replacement of the named official will result in automatic substitution of the official's successor in office. See Fed.Rule Civ.Proc. 25(d)(1); Fed.Rules App.Proc. 43(c)(1); this Court's Rule 40.3"
- Kentucky v Graham, 473 US 159 (1985)
If the complaint does not indicate the capacity then the capacity is determined by the nature of proceedings:
"in many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. "The course of proceedings" in such cases typically will indicate the nature of the liability sought to be imposed. Brandon v. Holt, 469 U. S. 464, 469 U. S. 469 (1985)"
- Kentucky v Graham, 473 US 159 (1985)

VI. Additional Resources

Congratulations! You're now booked up on the differences between Individual Capacity and Official Capacity!

Please get the justice you deserve.

Sincerely,



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