Taming the Monell Monster

Section 1983 of Chapter 42 of the United States Code authorizes redress for violations of constitutional and statutory rights by people acting under the authority of a governmental entity. It is not in itself a source of substantive rights, but rather, the method for vindicating federal rights elsewhere conferred by those parts of United States Constitution and federal statutes that it describes. Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433, 1979 U.S. LEXIS 141 (1979).

In the case of Monell v. Dep’t of Soc. Servs., the United States Supreme Court expressly held that governmental entities, as opposed to governmental officials or employees, could not be held liable for violating Section 1983 based on the doctrine of respondeat superior, or in other words, automatically liable for the actions of its officials or agents. 436 U.S. 658, 691-694 (1978). A governmental entity cannot be held liable under Section 1983 solely because it employs a tortfeasor.

The question, then, is under what circumstances can a governmental entity be held liable for a Section 1983 violation? The answer is only for its own violations of the federal Constitution. Under Monell, a governmental entity’s “own violations” consist of a policy or custom made by lawmakers or by those “whose edicts and acts may fairly aid to represent official policy.” Monell, 436 U.S. at 694.

The elements of a Monell claim are: (1) deprivation of a federal right; (2) some governmental action can be traced to the deprivation, i.e., policy or custom; (3) policy or custom demonstrating the governmental entity’s fault, i.e., deliberate indifference; and (4) municipal action that was the moving force behind the federal violation. Dean v. Wexford Health Service, Inc., 18 F.4th 214, 235 (7th Cir. 2021).

Since the Monell decision, case law has developed specific types of “policy or customs” that are actionable.  First, a governmental entity may be liable for an express policy that causes a constitutional deprivation when enforced. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir. 2009).  Second, liability may arise from a widespread practice that, “although not authorized by written law or an express policy, is so permanent and well settled as to constitute a custom or usage with the force of law.” Id. Additional high levels of proof are required for liability to attach to a widespread practice. Plaintiff must show that the policymakers were deliberately indifferent to the known or obvious consequence of the custom: in other words, turned a blind eye to the custom. Thomas v. Cook Cnty. Sheriff’s Dept., 604 F. 3d 773, 790 (7th Cir. 2006). There also must be evidence demonstrating that the practice was persuasive. Id. One or two missteps are insufficient. Rather, evidence of systemic and gross deficiencies is mandatory. Hildreth v. Butler, 960 F.3d 420, 426 (7th Cir. 2020).   A governmental entity may be held liable for its inaction by a failure to train or supervise its officials or employees. Orozco v. Dart, 64 F.4th 806, 824 (7th Cir. 2023). Importantly, this path to Monell is steep. Id. Rigorous standards of culpability and causation are applied. Id.  Lastly, Section 1983 liability may be imposed on a governmental authority when the final decision-making authority is directly responsible for the deprivation. Gernetzke v. Kenosha Unified School District No. 1, 274 F.3d 464 (7th Cir. 2001). Under this type of Monell claim, the official or employee who commits the violation must have authority that is final in a special sense: that there is no higher authority. Id. at 469. “Delegation is not direction; authorization is not command: permission does not make the permittee the final policy maker.” Id.

Although Monell claims do indeed appear spooky, the levels of proof are high. Deliberate indifference culpability by the governmental entity is required and the alleged action or inaction must be the moving force driving the deprivation. Plaintiff is required to prove more than isolated events of deprivations. These claims can often be disposed of by summary judgment motion. When Plaintiffs are held to their required standards of proof, the Monell Monster can be tamed.