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Comparison: Individual Capacity vs Official Capacity


Official Liable

Official Pays

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


Agency Liable

Agency Pays

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

I. Definitions

Declaratory Judgment Injunction

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)."

"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."

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."

What Damages are Available?

✓ Compensatory Damages
✓ Punitive Damages
✓ Injunctive Relief
✓ Mental & Emotional Distress
“In a §1983 action, punitive damages are only available from government officials when they are sued in their individual capacities"
“mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983"

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."
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."


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."
Sovereign Immunity is not available to government officials who are sued in their Individual Capacity
"Defendants Kirby and Johnson were each sued in their individual capacity. The individual defendants, however, do not enjoy immunity under the Eleventh Amendment. First, with regard to plaintiff's claim for monetary damages against the individual defendants, they are not immune because plaintiff sued them in their individual capacities. In Hafer v. Melo, the Supreme Court emphasized that a plaintiff may sue a state official in his individual capacity, even though his actions were undertaken in his official capacity. Hafer v. Melo, 502 U.S. 21, 25-26, 31 (1991) (holding in context of 42 U.S.C. § 1983 suit that officials sued in their individual capacities are "persons" under that statute). In contrast to suits against officials in their official capacity, for which any liability would issue from the state treasury, a suit against an official in his individual capacity seeks the personal liability of the official. Because liability would issue from the individual, not the state, the state is not the real party in interest, and the Eleventh Amendment does not bar the action. Id. at 25-26; accord, e.g., Alden v. Maine, 527 U.S. 706, 756 (1999) ("Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally."); see also Erwin Chermirinsky, Federal Jurisdiction 429 (4th ed. 2003) ("[I]f the suit is against an officer for money damages when the relief would come from the officer's own pocket, there is no Eleventh Amendment bar even though the conduct was part of the officer's official duties."); cf. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2006) ("The [states'] immunity also applies to actions against state officials sued in their official capacity for money damages." (emphasis added)). Because the individual defendants are only sued in their individual capacities, the court finds that they are not immune with regard to plaintiff's federal law claims for money damages."

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."
"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."
"official-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent."
"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))"

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."

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)"
“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."
“mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983"
“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)"
“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"

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."
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."

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"


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

  • TBD's Recommendation:
    • Read the Attwood v Clemons appellate opinion
      • Reason 1: It distinguishes 'Individual Capacity' and 'Official Capacity' (see the concurring remarks)
    • Read the Kentucky v Graham supreme court opinion
      • Reason 1: It analyzes 'Individual Capacity' and 'Official Capacity' (see the concurring remarks)

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)
  • Unspecified Capacity: 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)
  • Individual Capacity vs Official Capacity:
    "While a plaintiff may bring a Bivens action against a federal officer in his individual capacity, a plaintiff may not bring a Bivens action against a federal agency or a federal officer acting in his official capacity."


    "Bivens permits suits only against federal agents in their individual capacities." - see Horne v. SSA, 359 Fed. App'x 138 (11th Cir. 2010)

    • Individual Capacity: Bivens is allowed
    • Official Capacity: Bivens is NOT allowed

VI. Additional Resources

VII. Bibliography


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

Please get the justice you deserve.


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add a comment
I'd appreciate your opinion on this issue:

If one is suing a public official in both his individual and official capacity, must that person be served process in both capacities in order to have personal jurisdiction over both capacities?

In other words, if the Chief of Police is being sued individually and official, must service be effectuated at his home and at his workplace or through his agent?

- 1/28/24 | Anonymous User 174-***-***-234

Wow; good question.

My Answer = No

Reason: You only need to serve a defendant once (per lawsuit)

Support: I’ve sued a handful of public officials; some of whom I’ve sued under both capacities (simultaneously). For each official, I only had to serve one summons (even for defendants whom I've sued under both capacities). None of the defendants sought additional summonses from me (or complained [to the judge/court] about single-service). Here’s one such complaint: Makere v Fitzpatrick, et al

Note: make sure that your civil complaint indicates that your lawsuit is being brought under both capacities.

Important Note: all of my lawsuits were borne out of Florida (as well as the federal system). So, your state/territory might have different rules.

Critical Note: This is not legal advice. I’m just sharing my knowledge/experiences/resources with you. About Page

FAQ Page

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Also, here are some how-to guides for effectuating a summons: How To Effectuate a Summons (Federal)

How To Effectuate a Summons (State)
Thank you for your question.

Please continue to get booked up on justice; while helping others along the way!

- 1/29/24 | TextBookDiscrimination.com

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