Civil Rights Implications of the Allocation of Funds between Bus and Rail (2008)

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23 causes of action allowable under the Act”;210 however, to seek such relief, “a plaintiff must assert the violation of a federal right, not merely a violation of federal law.”211 Furthermore, “[t]he fact that Congress included in sec- tion 602 so detailed an enforcement scheme strongly suggests that it did not intend to permit, in the alterna- tive, private lawsuits to enforce section 602.”212 Finally, the Supreme Court held in Seminole Tribe of Florida v. Florida213 that no relief under § 1983 was available un- der the Ex parte Young doctrine “where Congress has prescribed a detailed remedial scheme for the enforce- ment against a State of a statutorily created right….”214 Those cases decided since Alexander v. Sandoval sug- gest that it is debatable whether a § 1983 suit alleging a violation of disparate-impact regulations would suc- ceed.215 As one commentator has stated: [W]hile private suits may be brought under Title VI and § 1983 for intentional discrimination, the Supreme Court has eliminated Title VI and its implementing regulations as the means by which private redress may be sought for government action alleged to have a disparate impact on minority groups. Section 1983 remains an option for pri- vate parties seeking relief from such action, but the fu- ture viability of these suits is questionable, given the cur- rent composition of the Supreme Court.216 The foregoing author agrees that previous Supreme Court decisions foreclose the potential for private suits relying solely on a violation of Section 602. However, the inability to bring a private action based on Section 602 does not foreclose using disparate impact to help meet the burden of proof required for showing a viola- tion of a constitutionally-protected right asserted in a § 1983 action.217 210 14A C.J.S. Civil Rights, § 228 (citing Rossiter v. Be- noit, 162 Cal. Rptr. 65, 88 Cal. 3d 706 (1979) (claimant sued for mental distress for an arrest for public drunkenness)). 211 Blessing v. Freestone, 520 U.S. 329, 340, 117 S. Ct. 1353, 1359, 137 L. Ed. 2d 569, 582 (1997) (emphasis in original) (citation omitted). 212 Thomas A. Lambert, The Case Against Private Disparate Impact Suits, 34 GA. L. REV. 1155, 1246 (2000). 213 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). 214 517 U.S. at 74, 116 S. Ct. at 1132, 134 L. Ed. 2d at 278. Moreover, “[e]ven before Seminole, it was clear that no § 1983 claim (based on a federal constitutional violation or an “and laws” claim based on violation of a federal statute) lies in any forum against a state in its own name.” HAROLD S. LEWIS & ELIZABETH J. NORMAN, EMPLOYMENT DISCRIMINATION LAW AND PRACTICE (2d ed. 2004), § 10.35, at 630 (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45 (1989)). 215 Of course as noted earlier (see pp. 18–24 herein), dispa- rate impact may provide evidence to support a claim of inten- tional discrimination. 216 BAIDA, supra note 5, at 18. 217 See discussion, infra, in § VIII.B of Robinson v. Kansas, 295 F.3d 1183 (10th Cir. 2002), cert. denied, 539 U.S. 926, 123 S. Ct. 2574, 156 L. Ed. 2d 603 (2003) and The Comm. Concern- ing Cmty. Improvement v. City of Modesto, 2007 U.S. Dist. LEXIS 39000 (E.D. Cal. 2007, later proceedings at 2007 U.S. Dist. LEXIS 50258 (E.D. Cal., July 2, 2007) and 2007 U.S. IX. WHETHER STATE OR MUNICIPAL TRANSIT AGENCIES HAVE IMMUNITY FROM CLAIMS UNDER § 1983 A. State Transit Agencies’ Immunity Under the Eleventh Amendment As seen, Section 601 of Title VI proscribes only in- tentional discrimination; neither Section 602 nor the regulations promulgated thereunder create a private right of action for disparate impact. Section 1983, more- over, is not an independent basis for an action to en- force a federal statute that does not have rights- creating language.218 In any case, states and their agen- cies have immunity under the Eleventh Amendment and, thus, are not amenable to suit under § 1983.219 As explained in Beach v. Minnesota,220 the Supreme Court has interpreted the Eleventh Amendment as barring individual citizens from suing states in federal court, including their own state.221 Under § 1983, “[e]very person” is potentially liable. Although municipalities, as explained herein, are per- sons within the meaning of § 1983,222 a state or state agency is not a person under § 1983223 and may not be sued under § 1983 in a state or federal court;224 nor is a state official sued in his or her official capacity a person Dist. LEXIS 57551 (E.D. Cal., July 30, 2007), summary judg- ment granted, claim dismissed 2007 U.S. Dist. LEXIS 61195 (E.D. Cal. Aug. 20, 2007). 218 See, however, discussion in § IX.D, infra, of a municipal transit agency’s official policy or custom as a basis for liability under § 1983. 219 See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Toledo, Peoria & Western R. Co., v. State of Ill., Dep’t of Transp., 744 F.2d 1296 (7th Cir. 1984), cert. denied, 470 U.S. 1051, 105 S. Ct. 1751, 84 L. Ed. 2d 815 (1985); Manning v. S.C. Dep’t of Highway and Pub. Transp., 914 F.2d 44 (4th Cir. 1990); Vickroy v. Wis. Dep’t of Transp., 2003 U.S. App. LEXIS 15448; Coger v. Connecticut, 309 F. Supp. 2d 274, 281 (D. Conn. 2004), aff’d, Coger v. State Dep’t of Pub. Safety, 2005 U.S. App. LEXIS 15802 (2d Cir. 2005); Fidtler v. Pa. Dep’t of Corr., 55 Fed. Appx. 33 (3d Cir. 2002). 220 2003 U.S. Dist. LEXIS 10856 (D. Minn. 2003). 221 2003 U.S. Dist. LEXIS 10856 at *6–7 (citing Hans v. Lou- isiana, 134 U.S. 1, 10, 10 S. Ct. 504, 505, 33 L. Ed. 842 (1890); Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997)). 222 Monell v. N.Y. City Dep’t of Social Services, 436 U.S. 658, 688–90, 98 S. Ct. 2018, 2034–35, 56 L. Ed. 2d 611, 634–35 (1978). 223 A state transportation department is not a person subject to suit under § 1983. Vickroy v. Wis. Dep’t of Transp., 73 Fed. Appx. 172, 173 (7th Cir. 2003); Jimenez v. New Jersey, 245 F. Supp. 2d 584, 586 n.2 (D. N.J. 2003); Manning v. S.C. Dep’t of Highways and Pub. Transp., 914 F.2d 44, 48 (4th Cir. 1990); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65–66, 109 S. Ct. 2304, 2309, 105 L. Ed. 2d 45 (1989). 224 Nichols v. Domley, 266 F. Supp. 2d 1310, 1313 (D. N.M. 2003).

24 under § 1983.225 Although § 1983 does not restrict a state’s Eleventh Amendment immunity,226 there are two exceptions. First, a state may be sued where Congress enacts legislation pursuant to Section 5 of the Four- teenth Amendment unequivocally expressing its intent to abrogate the states’ Eleventh Amendment immu- nity.227 Second, a state may consent to suit in federal court.228 Thus, the enactment of § 1983 creating a cause of ac- tion for deprivation of civil rights under color of state law did not abrogate the states’ sovereign immunity under the Eleventh Amendment to the U.S. Constitu- tion.229 The Eleventh Amendment states that “[t]he Ju- dicial 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.” The amendment protects an unconsenting state and state agencies but not units of local government from claims for damages and actions brought by private par- ties in federal courts.230 In Alden v. Maine,231 the Supreme Court held in a case involving the Fair Labor Standards Act232 that 225 Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). See BAIDA, supra note 6. 226 Beach v. Minnesota, 2003 U.S. Dist. LEXIS 10856 at *8 (citing Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979)); see Williams v. State of Missouri, 973 F.2d 599, 600 (8th Cir. 1992). 227 Beach, 2003 U.S. Dist. LEXIS 10856 at *7 (citing Penn- hurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67, 77–78 (1984) [superseded by stat- ute as stated in Raygor v. Univ. of Minn., 604 N.W.2d 128 (Minn. Ct. App. 2000)]; Egerdahl v. Hibbing Cmty. College, 72 F.3d 615, 619 (8th Cir. 1995)). 228 Beach, 2003 U.S. Dist. LEXIS 10856 at *8 (citing Clark v. Barnard, 108 U.S. 436, 2 S. Ct. 878, 27 L. Ed. 780 (1883)). 229 Quern v. Jordan, 440 U.S. 332, 345, 99 S. Ct. 1139, 1147, 59 L. Ed. 2d 358, 369 (1979); In re Secretary of Dep’t of Crime Control and Pub. Safety, 7 F.3d 1140, 1145 (4th Cir. 1993), cert. denied, 511 U.S. 1109, 114 S. Ct. 2106, 128 L. Ed. 2d 667 (1994). 230 440 U.S. at 338, 99 S. Ct. at 1143–44, 59 L. Ed. 2d at 365 (1979) (“This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States.” Id. at 349, 99 S. Ct. at 1149, 59 L. Ed. 2d at 372 (Justice Brennan, concurring opinion). 231 527 U.S. 706, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999). The Court explained that [t]he Eleventh Amendment makes explicit reference to the States’ immunity from suits “commenced or prosecuted against one of the United States by Citizens of another State, or by Citi- zens or Subjects of any Foreign State.” U.S. Const., Amdt. 11. We have, as a result, sometimes referred to the States’ immu- nity from suit as “Eleventh Amendment immunity.” The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authorita- Congress did not have the power to subject a noncon- senting state to private suits for damages in the state’s own courts. In regard to § 1983, the Supreme Court in Will v. Michigan Department of State Police233 also held that states are not within the statute’s category of pos- sible defendants and are not subject to suit. Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties. The Elev- enth Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472–473 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity. That Congress, in passing § 1983, had no intention to disturb the States’ Eleventh Amendment immunity and so to alter the federal–state balance in that respect was made clear in our decision in Quern. Given that a principal purpose behind the enact- ment of § 1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, we cannot accept petitioner’s argument that Congress in- tended nevertheless to create a cause of action against States to be brought in state courts, which are precisely the courts Congress sought to allow civil rights claimants to avoid through § 1983.234 Although state officials may be sued in their individ- ual capacities for damages under § 1983 for depriving citizens of their federal constitutional and federal statu- tory rights, a state transportation department is not subject to suit under § 1983.235 For example, in Manning v. South Carolina Department of Highway and Public Transportation,236 the plaintiff alleged that the depart- ment and certain officials thereof in the course of con- demning the plaintiff’s property violated the plaintiff’s constitutional rights of due process.237 The court held that neither the department nor its officials acting in their official capacities were persons amenable to suit under § 1983.238 Similarly, in Vickroy v. Wisconsin De- partment of Transportation, the plaintiffs, who were injured in an automobile accident, argued “that the De- partment violated their constitutional rights to travel…by causing or permitting road designs that lead tive interpretations by this Court make clear, the States’ immu- nity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today…. Id. at 712–713, 119 S. Ct. at 2246, 144 L. Ed. 2d at 652 (emphasis supplied). 232 29 U.S.C. § 201, et seq. 233 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). 234 491 U.S. 58, 66, 109 S. Ct. 2304, 2311, 105 L. Ed. 2d 45, 50 (1989) (emphasis supplied). 235 Vickroy v. Wis. Dep’t of Transp., 73 Fed. Appx. 172 (7th Cir. 2003) (Unreported), cert. denied, 540 U.S. 1107, 124 S. Ct. 1061, 157 L. Ed. 2d 892 (2004). 236 914 F.2d 44 (4th Cir. 1990). 237 914 F.2d at 46–47. 238 Id. at 46–48 (emphasis supplied).

25 to accidents.”239 The court, while also agreeing that the plaintiffs’ claim was frivolous, held that there was an “antecedent” problem in that the department was a unit of state government and thus not a person amenable to suit under § 1983.240 As explained in Toledo, Peoria & Western Railroad Co. v. State of Illinois, Department of Transportation,241 such an action lacks federal jurisdiction. In the Toledo, Peoria & Western Railroad Co. case, the transportation department and its officials appealed a mandatory in- junction that had directed them to restore to the com- pany “all possessory rights as the fee simple owner of a plot of land….”242 The action was dismissed against the department because a state agency is not a ‘person’ within the meaning of the Civil Rights Act.243 It does not appear that recently there have been many attempted § 1983 actions against transportation agencies and their officials. As stated, such actions have been dismissed because of the states’ immunity under the Eleventh Amendment. For instance, in Gregory v. South Carolina Department of Transportation,244 the plaintiff and property owner “claim[ed] that the state defendants targeted him and his neighborhood for a systematic undervaluation appraisal because of his race” in connection with the state’s use of eminent do- main to acquire property for a specific bridge project.245 The court ruled that the claim was barred by the Elev- enth Amendment. The practical effect of the Eleventh Amendment in mod- ern Supreme Court jurisprudence is that “nonconsenting States may not be sued by private individuals in federal court.” In order for Congress to abrogate the states’ sov- ereign immunity as granted by the Eleventh Amendment, 239 Vickroy, 73 Fed. Appx. 172 2003 U.S. App. LEXIS 15448 at *173. 240 Id. at *173–74. 241 Toledo, Peoria & Western R. Co., v. State of Ill., Dep’t of Transp., 744 F.2d 1296 (7th Cir. 1984), cert. denied, 470 U.S. 1051, 105 S. Ct. 1751, 84 L. Ed. 2d 815 (1985). 242 Id. at 1297. 243 Id. at 1297. The court observed that [t]he Third, Fifth, and Ninth Circuits agree. Ruiz v. Estelle, 679 F.2d 1115, 1137 (5th Cir. 1982) (in enacting section 1983, Congress did not intend to override the traditional immunity of states and state agencies), amended and vacated in part, 688 F.2d 266, cert. denied, 460 U.S. 1042, 103 S. Ct. 1438, 75 L. Ed. 2d 795 (1983); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 & n.2 (3rd Cir. 1969) (rule that lo- cal governments are not “persons” (since overruled by Supreme Court) also applies to states), cert. denied, 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691 (1970); Bennett v. California, 406 F.2d 36, 39 (9th Cir. [1969]) (state’s immunity extends to suits under Civil Rights Act), cert. denied, 394 U.S. 966, 22 L. Ed. 2d 568, 89 S. Ct. 1320 (1969). See also Ohio Inns, Inc. v. Nye, 542 F.2d 673, 676, 680–81 (6th Cir. 1976) (state immunity not waived; open question whether state is “person” under section 1983), cert. denied, 430 U.S. 946, 97 S. Ct. 1583, 51 L. Ed. 2d 794 (1977). This section 1983 action against IDOT, a state agency, fails for lack of federal court jurisdiction. Id. at 1298–99. 244 289 F. Supp. 2d 721, 723 (2003). 245 289 F. Supp. 2d at 723. Congress must 1) intend to do so unequivocally and 2) act under a valid grant of constitutional authority…. Plaintiff’s suit against the South Carolina Department of Transportation is barred by the Eleventh Amendment. The Fourth Circuit has recognized that the South Caro- lina State Highway Department (“SCSHD”) was pro- tected by the Eleventh Amendment and thus was not amenable to suit unless Congress abrogated its rights under existing law. The South Carolina Department of Transportation (“SCDOT”) replaced the SCSHD for all practical purposes as of 1993. See S.C. Code Ann. § 57-3- 10 (2002) (the notes following state, “The 1993 amend- ment established the structure of the Department of Transportation, in place of former provisions establishing the Department of Highways and Public Transportation, pursuant to a restructuring of the Department”).246 The court further noted that “a general jurisdictional grant does not suffice to show [that] Congress abro- gated a state’s Eleventh Amendment rights….”247 As explained also in Beach v. Minnesota,248 the Su- preme Court has interpreted the Eleventh Amendment as barring individual citizens from suing states in fed- eral court, including their own state.249 Although the Eleventh Amendment refers to suits by persons not citizens of the state, the amendment has been inter- preted to mean that it applies to suits by all persons against a state in a federal court.250 As an example, a § 1983 claim brought by a terminated administrative law judge for a state’s motor vehicle department against the department was barred by the Eleventh Amendment, because the department was a state agency.251 Thus, sovereign immunity will defeat a claim brought under § 1983. States, however, retain no sover- eign immunity as against the federal government.252 A plaintiff may bring a § 1983 action against state offi- cials in their official capacities for prospective, injunc- tive relief.253 246 Id. at 724 (some internal citations omitted). 247 Id. at 725 (citing Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 111 S. Ct. 2578, 115 L. Ed. 2d 686 (1991)). See also Paulson v. Carter, 2005 U.S. Dist. LEXIS 10724, at *15–16 (D. Or. 2005), aff’d, 134 Appx. 210 (9th Cir. 2005) (affirming the motion and amended motion for preliminary injunction) (hold- ing that the Oregon State Bar and its officials acting in their official capacity were not persons within the meaning of § 1983 (citing Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997)). 248 2003 U.S. Dist. LEXIS 10856 (D. Minn. 2003). 249 Id. at *6–7 (citing Hans v. Louisiana, 134 U.S. 1, 10, 10 S. Ct. 504, 505, 33 L. Ed. 842 (1890); Murphy v. State of Ar- kansas, 127 F.3d 750, 754 (8th Cir. 1997)). 250 See Mancuso v. New York State Thruway Auth., 86 F.3d 289, 292 (2d Cir. 1996). 251 Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004). 252 United States v. Miss. Dep’t of Public Safety, 321 F.3d 495, 498 (5th Cir. 2003 (involving the Americans with Disabili- ties Act)); West Virginia v. United States, 479 U.S. 305, 312 n.4, 107 S. Ct. 702, 707 n.4, 93 L. Ed. 2d 639, 647 n.4 (1987). 253 Heartland Academic Cmty. Church v. Waddle, 427 F.3d 525, 530 (8th Cir. 2005) (holding that

26 B. Factors Considered in Determining Whether a Transit Authority Has Immunity Under the Eleventh Amendment With respect to immunity under the Eleventh Amendment, another issue may be whether a transpor- tation authority, organized as a public corporation, qualifies as a state entity.254 In Mancuso v. New York State Thruway Authority,255 the Second Circuit identified six factors for determining a public corporation’s status: 1) how the entity is re- ferred to in the documents that created it; 2) how the governing members of the entity are appointed; 3) how the entity is funded; 4) whether the entity’s function is traditionally one of local or state government; 5) whether the state has a veto power over the entity’s actions; and 6) whether the entity’s obligations are binding upon the state. In weighing these factors, one of the primary im- peratives of the sovereign immunity doctrine is to pro- tect the state’s fiscal situation and dignity, but the fi- nancial liability of the state is the most salient factor.256 In Mancuso, the New York State Thruway Authority did not have sovereign immunity because New York State would not have been affected financially by an award of damages against the defendant.257 [t]he Ex Parte Young doctrine describes an exception to Eleventh Amendment immunity for a state official where the re- lief sought is prospective and not compensatory…. A federal court may therefore issue an injunction to prevent state officials from violating the Constitution without running afoul of the Eleventh Amendment…. (“Although the juvenile officer may have limited immunity from liability for damages, there is no reason to extend that immunity to liability for equitable relief.” (citation omitted))… “An injunction to prevent [a state officer] from doing that which he has no legal right to do is not an inter- ference with the discretion of an officer.” Ex Parte Young, 209 U.S. at 159. We agree with the District Court and hold, as we did summarily in our prior opinion, Heartland I, 335 F.3d at 691, that Eleventh Amendment sovereign immunity is not a bar to suit in this case.) (some citations omitted). 254 Esteban & Co. v. Metro. Transp. Auth., 2004 U.S. Dist. LEXIS 3694 (S.D.N.Y. 2004). As seen, the Eleventh Amend- ment has been interpreted by the Supreme Court as prohibit- ing suits against any state in federal court unless the state consents to be sued or unless Congress has legislatively over- ridden state immunity in a valid exercise of its powers. See United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). 255 86 F.3d 289, 293 (2d Cir. 1996). The Mancuso court cited Feeney v. Port Auth. Trans-Hudson Corp., 873 F.2d 628, 630– 31 (2d Cir. 1989), aff’d on other grounds, 495 U.S. 299, 110 S. Ct. 1868, 109 L. Ed. 2d 264 (1990). 256 Fed. Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (2002). The Court found that the central purpose of the sovereign immunity doc- trine was not to protect states’ finances but to “accord the states the respect owed them as joint sovereigns.” Id. at 765, 122 S. Ct. at 1877, 152 L. Ed. 2d at 981. 257 Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289, 296 (2d Cir. 1996) (stating that “the state treasury is not even minimally at risk….”). Based on the analysis in the Mancuso decision, the question of whether a transit authority has immunity as an agency of the state depends on the consideration and balancing of various factors, including, for example, whether under state law a transit authority is inde- pendent and not within the supervisory authority of the state or one of its agencies;258 whether state law pro- vides that a transit authority may be held liable in tort for money damages;259 whether the governor appoints the members of the governing board of a transit author- ity;260 whether the state is ultimately responsible for a transit authority’s membership;261 whether a transit authority’s mandate is limited to transportation in a single metropolitan area and therefore is essentially regional rather than statewide;262 whether the state has direct oversight over a transit authority’s actions (as opposed to its finances) and may remove its members;263 whether a finding of liability against a transit authority would affect the state’s budget in any way, i.e., whether under state constitutional or statutory provisions the state is liable for obligations incurred by a transit au- thority established as a public corporation;264 and whether the state provides a significant percentage of a transit authority’s budget.265 Finally, in a case in which there was no question that the defendant was a state entity, the U.S. Supreme Court rejected the petitioner’s argument that adminis- trative proceedings, in contrast to judicial proceedings, constitutionally could be initiated against the defendant because administrative proceedings did not present the same fiscal threat to the state.266 In sum, a government transit authority may not be entitled to sovereign immunity under the Eleventh Amendment if it is a municipal transit authority or, based on an evaluation of all the relevant factors, if the transit authority is not an agency of the state govern- ment. C. Whether a Municipal Transit Agency Is Subject to Suit Under § 1983 The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such violations of constitutional or statu- tory rights occur.267 The reach of § 1983 was expanded 258 See id. at 296. 259 See id. at 296. 260 See id. at 295. 261 See id. at 296. 262 See id. at 295. 263 See id. at 296. 264 See id. at 295. 265 See id. at 296. 266 See id. at 295. 267 Wyatt v. Cole, 504 U.S. 158, 112 S. Ct. 1827, 73 L. Ed. 2d 396 (1992), after reversal and remand, aff’d by 994 F.2d 1113 (5th Cir. 1993), cert. denied, 510 U.S. 977, 114 S. Ct. 470, 126 L. Ed. 2d 421 (1993).

27 in 1961 when the U.S. Supreme Court decided Monroe v. Pape268 and was extended again by the Court’s deci- sion in Monell v. New York.269 In Monroe, the Court held that the phrase “under color of law” included the misuse of power exercised under state law, even though the persons committing the acts that constituted the depri- vation of rights were acting beyond the scope of their authority. The Court expanded the meaning of the phrase under color of law in this way because it be- lieved that § 1983 was intended to “give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position.”270 In 1978, the Supreme Court, in Monell v. New York,271 overruled Monroe v. Pape insofar as the Monroe Court held that local governments were immune from suit under § 1983.272 By virtue of the Monell decision, municipal corporations are persons amenable to suit under § 1983. The Monell Court did uphold the Monroe decision insofar as the Monroe Court held that the doc- trine of respondeat superior is not a basis for holding local governments liable under § 1983 for the constitu- tional torts of their employees.273 The Monell Court held: [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, in- flicts the injury that the government as an entity is re- sponsible under § 1983. Since this case unquestionably involves official policy as the moving force of the constitu- tional violation found by the District Court…we must re- verse the judgment below. In so doing, we have no occa- sion to address, and do not address, what the full contours of municipal liability under § 1983 may be. We have attempted only to sketch so much of the § 1983 cause of action against a local government as is apparent from the history of the 1871 Act and our prior cases, and we expressly leave further development of this action to another day.274 In ruling that the Eleventh Amendment is not a bar to municipal liability, the Monell Court’s holding was limited to “local government units which are not con- 268 Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), overruled in Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), insofar as the Court held in Monroe that local governments are immune from suit under § 1983. However, the Court upheld Monroe insofar as it held that the doctrine of respondeat superior is not a basis for rendering municipalities liable under § 1983 for the consti- tutional torts of their employees. 269 Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 694–95, 98 S. Ct. 2018, 2037–38, 56 L. Ed. 2d 611, 638 (1978). 270 365 U.S. at 172, 81 S. Ct. at 477, 5 L. Ed. 2d at 498. 271 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). 272 436 U.S. at 663, 98 S. Ct. at 2022, 56 L. Ed. 2d at 619. 273 436 U.S. at 663 n.7, 98 S. Ct. at 2022 n.7, 56 L. Ed. 2d at 619 n.7. 274 436 U.S. at 694–95, 98 S. Ct. at 2037–38, 56 L. Ed. 2d at 638 (emphasis supplied) (citation omitted). sidered part of the state for Eleventh Amendment pur- poses.”275 Because governments and agencies may act only through their officials and employees, the inapplicabil- ity of the respondeat superior doctrine in § 1983 actions requires further explanation. The federal court in Committee Concerning Community Improvement, su- pra, explained the law in this manner. First, “counties, cities, and local officers sued in their official capacities cannot be held vicariously liable under Section 1983 for the actions of subordinate officers….”276 Second, counties, cities, and local officers sued in their official capacity “may be held liable for constitu- tional violations where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopting that official policy is responsible for the depri- vation of rights protected by the Constitution.’”277 Third, there is § 1983 liability when “‘a government that, under color of some official policy, ‘causes’ an em- ployee to violate another’s constitutional right.’”278 Thus, 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, in- flicts the injury that the government as an entity is re- sponsible under § 1983.279 Furthermore, a § 1983 plaintiff “must ‘identify those officials or government bodies who speak with final pol- icy-making authority for the local governmental actor concerning the action alleged to have caused the par- ticular constitutional or statutory violation at issue.’”280 As discussed in the next subsection, § 1983 liability, therefore, may be based on the existence of a custom or practice that violates one’s constitutional rights. D. Municipal Transit Agency’s Official Policy or Custom as a Basis for Liability Under § 1983 The Monell decision requires that before a municipal defendant such as a transit agency may be held liable for deprivations of civil rights, there must be a showing that the deprivation resulted from a government policy 275 436 U.S. at 691 n.54, 98 S. Ct. at 2036 n.54, 56 L. Ed. 2d at 636 n.54. Donnelly v. McLellan, 889 F. Supp. 136, 140 (D. Vt. 1995) (noting that the New York City Transit Authority “has been held to be an agency of the City of New York by a variety of courts and for a broad range of statutory purposes”). 276 Comm. Concerning Cmty. Improvement, 2007 U.S. Dist. LEXIS 50258 at *17–18 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989)). 277 Id. at *18 (citation omitted). 278 Id. (citation omitted). 279 Id. (citation omitted). 280 Id. at *19 (citations omitted).

28 or custom.281 As the Seventh Circuit recently stated in a § 1983 action, the “actions of a state entity's employees are attributed to the state entity itself if those actions are in furtherance of the entity's ‘policy or custom.’”282 In the pending Darensburg case, discussed previously, it may be recalled that the plaintiffs allege that the transit authority has engaged in a “longstanding pat- tern of race discrimination” and “has historically en- gaged, and continues to engage, in a policy, pattern or practice of actions and omissions that have the purpose and effect of discriminating against poor transit riders of color in favor of white, suburban transit users, on the basis of their race and national origin.”283 In Committee Concerning Community Improvement v. City of Modesto, supra, a federal court granted the motions of Stansilaus County dismissing the plaintiffs’ § 1983 and Title VI claims because the required dis- criminatory intent was not shown; moreover, mere “im- pact alone is not determinative.”284 Nevertheless, the plaintiffs’ claims were founded on the county’s adoption of a Priorities List for building infrastructure in the county that the plaintiffs argued was the “official policy, decision or regulation which resulted in constitutional discriminatory injury.”285 To support a claim “based upon the existence of an official custom or policy,” the plaintiff must show that: 1) a policy or custom existed; 2) the governmental policy makers actually or constructively knew of its existence; 3) a constitutional violation occurred; and 4) the custom or policy served as the moving force behind the violation. To adequately state such a claim, plain- tiffs must also specifically describe how the policy or custom relates to the constitutional violation.286 For purposes of municipal liability, “a ‘policy’ may be established by either a policy or decision adopted by the municipality or a single act of a municipal official with final policymaking authority,”287 but the custom or prac- tice must be “‘so well settled and widespread that the policymaking officials of the municipality [may] be said 281 Monell v. N.Y. City Dep’t of Social Servs., 436 U.S. 658, 694–95, 98 S. Ct. 2018, 2037–38, 56 L. Ed. 2d 611, 638 (1978). See also McClure v. Biesenbach, 402 F. Supp. 2d 753, 760 (W.D. Tex. 2005) (citing Leatherman v. Tarrant County Nar- cotics Intelligence & Coord. Unit, 507 U.S. 163, 168, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993) (holding that the plaintiff must set forth a “short and plain statement of the § 1983 claim showing that the pleader is entitled to relief”)). 282 Valentine v. City of Chicago, 452 F.3d at 684 (citation omitted). See generally Owen v. City of Independence, 446 U.S. 993, 100 S. Ct. 2979, 64 L. Ed. 2d 850 (1980). 283 Darensburg, Amended Complaint ¶ 1. 284 Comm. Concerning Cmty. Improvement v. City of Mo- desto, 2007 U.S. Dist. LEXIS 57551 at *9, 25. 285 See id. at *13. 286 McClure v. Biesenbach, 402 F. Supp. 2d 753, 760; 2005 U.S. Dist. LEXIS 3113 at *18 (emphasis in original) (citations omitted). 287 Faas v. Washington County, 260 F. Supp. 2d 198, 205–06 (D. Me. 2003) (citing St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988)). to have actual or constructive knowledge of it, yet did nothing to end the practice.’”288 An act performed pur- suant to a custom that did not have formal approval of the “appropriate decision-maker” may fairly subject a municipality to liability under § 1983 “‘on the theory that the relevant practice is so widespread as to have the force of law.’” 289 In Valentine v. City of Chicago,290 the Seventh Circuit recently stated: Under our case law, unconstitutional policies or customs can take three forms: (1) an express policy that, when en- forced, causes a constitutional deprivation; (2) a wide- spread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a 'custom or usage' with the force of law; or (3) an allegation that the constitutional injury was caused by a person with final policymaking author- ity.291 One federal court has noted that “an isolated inci- dent or a meager history of isolated incidents is insuffi- cient to prove the existence of an official policy or cus- tom.”292 One incident of unconstitutional conduct by a city employee cannot be a basis for finding that there was an agency-wide custom for purposes of the imposi- tion of municipal liability under § 1983.293 In City of Oklahoma City v. Tuttle,294 the Supreme Court held that “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”295 Although it has been held that evidence of a single inci- dent cannot establish the existence of a policy or custom for purposes of a § 1983 claim,296 in McClure, supra, a district court held that in the Fifth Circuit a municipal- ity may be held liable in a § 1983 action “for even a sin- 288 Faas v. Washington County, 260 F. Supp. 2d 198, 206 (D. Me. 2003) (citation omitted). 289 M.W. ex rel. T.W. v. Madison County Bd. of Educ., 262 F. Supp. 2d 737, 743 (E.D. Ky. 2003) (citation omitted). 290 452 F.3d 670 (7th Cir. 2006) (a sexual harassment case in which Valentine was a female truck driver and sweeper for the city’s transportation department who alleged sexual harass- ment by two supervisors and a co-worker and who eventually filed an action under § 1983, as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e). 291 452 F.3d at 684 (7th Cir. 2006) (quoting Rasche v. Vill. of Beecher, 336 F.3d 588, 597 (7th Cir. 2003)). In Valentine, the Seventh Circuit, although reversing and remanding the case to the district court, agreed that the plaintiff had failed “to show that it was the City’s policy or custom to condone sexual har- assment of women.” Id. at 685. 292 Gedrich v. Fairfax County Dep’t of Family Servs., 282 F. Supp. 2d 439, 472 (E.D. Va. 2003) (citation omitted). 293 Davis v. City of New York, 228 F. Supp. 2d 327, 346 (S.D.N.Y. 2002), aff’d., 75 Fed. Appx. 827 (2d Cir. 2003). 294 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). 295 471 U.S. at 823–24, 105 S. Ct. at 2436, 85 L. Ed. 2d at 804. 296 Fultz v. Whittaker, 261 F. Supp. 2d 767 (W.D. Ky. 2003).