And Justice for All!

A GUIDE TO CIVIL RIGHTS LIABILITY UNDER 42 U.S.C. § 1983:

AN OVERVIEW OF SUPREME COURT AND ELEVENTH CIRCUIT PRECEDENT

IAN D. FORSYTHE

Hilyard, Bogan, Palmer & Lockeby, P.A.

105 East Robinson Street, Suite 201

Orlando, Florida 32801

I. INTRODUCTION AND HISTORY

42 U.S.C. § 1983, commonly referred to as "section 1983" provides:

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.

42 U.S.C. § 1983 (emphasis added).

Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the "Ku Klux Klan Act" because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. 

While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so. The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability. 

The number of cases that have been brought under section 1983 has dramatically increased since 1961 when the Supreme Court decided Monroe v. Pape. In Monroe, the Supreme Court held that a police officer was acting "under color of state law" even though his actions violated state law. This was the first case in which the Supreme Court allowed liability to attach where a government official acted outside the scope of the authority granted to him by state law. Since Monroe v. Pape was decided, an extensive body of law has developed to govern section 1983 claims. This article is intended to provide an overview of that extensive body of law, and will include seminal precedent from the United States Supreme Court and the Eleventh Circuit Court of Appeals--a comprehensive study of all law related to section 1983 is beyond the scope of this article.

II. ELEMENTS OF A SECTION 1983 CLAIM

(i) "Every person . . ."

Only "persons" under the statute are subject to liability. A state is not a person subject to suit under section 1983, but a state officer can be sued in his official capacity for prospective or injunctive relief despite the fact that an suit against a government official in his official capacity represents nothing more than a suit against the government entity itself! Despite this logical inconsistency, the current state of the law is that a state may not be sued for damages, but may be sued for declaratory or injunctive relief. Municipalities and local governments are persons subject to suit for damages and prospective relief, but the United States Government is not. Individual employees of federal, state and local government may be sued in their individual capacities for damages, declaratory or injunctive relief.

While the determination of who is a "person" is a matter of federal statutory interpretation, the matter of who has the capacity to be sued is determined by the law of the forum state. Likewise, the law of the forum is to be applied in actions under section 1983 where the law of section 1983 provides no guidance. 

(ii) ". . . who under color of [state law] . . ."

The traditional definition of acting under the color of state law requires that the defendant have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law," and such actions may result in liability even if the defendant abuses the position given to him by the state. A private actor may also act under color of state law under certain circumstances. For example, it has been held that a physician who contracts with the state to provide medical care to inmates acts under the color of state law. For all practical purposes, the "color of state law" requirement is identical to the "state action" prerequisite to constitutional liability. 

(iii) ". . . subjects or causes to be subjected . . ."

Section 1983 does not impose a state of mind requirement independent of the underlying basis for liability, but there must be a causal connection between the defendant's actions and the harm that results. In order to hold a local government liable under section 1983, the Supreme Court has interpreted this causation element to require that the harm be the result of action on the part of the government entity that implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, or the result of the entity's custom. 

Further, the entity's policy or custom must have been the "moving force" behind the alleged deprivation. This "custom or policy" requirement is a dramatic departure from the rule of respondent superior that prevails in many common law actions. 

A local government is said to have an unconstitutional policy when it fails to train its employees, and the failure to train amounts to deliberate indifference to an obvious need for such training, and the failure train will likely result in the employee making a wrong decision. An unconstitutional policy may also exist if an isolated action of a government employee is dictated by a "final policymaker," or if the authorized policymaker approves a subordinate's decision and the basis for it. However, a supervisor can only be liable in his individual capacity if he directly participates in causing the harm--relying upon respondent superior is insufficient. The Supreme Court has rejected the notion that a plaintiff must meet a heightened pleading standard to state a claim against a municipality for an unconstitutional custom or policy. 

(iv) ". . . [any person to] the deprivation of rights . . ."

Section 1983 is not itself a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws. Therefore, a plaintiff may prevail only if he can demonstrate that he was deprived of rights secured by the United States Constitution or federal statutes. It is beyond the scope of this article to discuss all of the rights available under the United States Constitution, nevertheless, this article will provide an overview of perhaps the most utilized of all constitutional provisions--the Fourteenth Amendment Due Process Clause [hereinafter "the Due Process Clause"].

The Supreme Court has held that the Due Process Clause was not intended to supplant tort law, or to become "a font of tort law to be superimposed upon whatever systems may already be administered by the states." Against this backdrop, to state a claim for a deprivation of Due Process, a plaintiff must show: (1) that he possessed a constitutionally protected property interest; and (2) that he was deprived of that interest without due process of law. Due process property interests are created by "existing rules or understandings that stem from an independent source such as state law--rules or understanding that secure certain benefits and that support claims of entitlement to those benefits." To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." While the existence of a protected property interest is decided by reference to state law, the determination of whether due process was accorded is decided by reference to the Constitution. Due process requires that "a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case,” “but the state does not have to provide the same remedies available under section 1983 in order to satisfy due process. 

In construing the Due Process Clause, the United States Supreme Court has held that negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause, and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts. However, where the state can feasibly provide a pre-deprivation hearing, it must do so regardless of the post-deprivation remedies available, and in the absence of a special relationship created or assumed by the state, a state's failure to protect an individual from violence or injury caused by private actors cannot state a violation of the Due Process Clause. 

 
Due procedural due process, the Due Process Clause has two substantive components--the substantive due process simpliciter, and incorporated substantive due process. In order to state a claim for a violation of the substantive due process simpliciter, the plaintiff must demonstrate that the defendant engaged in conduct that was "arbitrary, or conscience shocking, in a constitutional sense." This form of due process has very limited application, but, in contrast to certain procedural due process claims, the existence of adequate post-deprivation remedies does not bar a substantive due process claim. With respect to incorporated substantive due process, the plaintiff may state a claim by proving a violation of one of the Bill of Rights. 

The Supreme Court has held that one of the substantive elements of the Due Process Clause protects those rights that are fundamental--rights that are implicit in the concept of ordered liberty, and has, over time, held that virtually all of the Bill of Rights protect such fundamental rights and has likewise held that they apply to the states through the "liberty" interest of the Due Process Clause. However, the Court has held that when a specific provision within the Bill of Rights already provides protection, the more generalized notion of due process should not be used to define constitutional rights. 

In addition to providing a remedy for deprivations of constitutional rights, section 1983 also makes actionable violations of federal "Laws." A violation of a federal statute is cognizable only when the violation trammels a right secured by federal law. However, a statute is said to create a federal right only when "the provision in question is intended to benefit the putative plaintiff," unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the government unit, or unless the putative plaintiff's interest is too vague and amorphous such that it is beyond the competence of the judiciary to enforce. 

(v) " . . . shall be liable . . . in an action at law, Suit in equity, or other proper proceeding for redress . . . "

There is no requirement that the plaintiff sue in federal court because state courts have concurrent jurisdiction, and the usual rule is exhaustion of administrative and judicial state remedies is not a prerequisite to a section 1983 action. Also, the existence of concurrent state remedies is not a bar to a section 1983 action. With respect to the extent of damages available, the Supreme Court has noted that the basic purpose of a section 1983 damages award is to compensate the victims of official misconduct, and therefore held that there is no limit on actual damages if they can be proven. But where they are not proved, only nominal damages of $1.00 may be awarded. 

Punitive damages may also be awarded, but not against a municipality. Injunctive relief is also permitted. 

III. DEFENSES AND IMMUNITIES

States and state agencies are entitled to Eleventh Amendment immunity in federal court, but local governments have no immunity from damages flowing from their constitutional violations, and may not assert the good faith of its agents as a defense to liability. Further, state law sovereign immunity and state law limitations on damages do not protect local governments from liability under section 1983, and state laws requiring pre-suit notification prior to initiating an action against the state or its subdivisions similarly do not apply. Therefore, local governments are left in the unique and unhappy situation of being subject to suit without the benefit of any form of immunity.

In contrast to the distinct lack of immunity available to local governments, individual capacity defendants are protected by qualified immunity. Qualified immunity is a powerful tool that shields individual officials who are performing discretionary activities unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." A government official is entitled to qualified immunity unless his "act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing." The qualified immunity inquiry is purely objective--the subjective intentions of the actor is irrelevant. Qualified immunity is not only immunity from liability, but it is immunity from suit as well, and shields individual capacity defendants even where a constitutional violation may have occurred. Likewise, a court should scrutinize a plaintiff's claim to determine if the plaintiff states a constitutional claim at all, prior to analyzing whether the defendant is entitled to qualified immunity. 

The burden of proving that the law was clearly established cannot be carried by stating constitutional rights in general terms--a plaintiff within the eleventh circuit must cite to specific decisions of the United States Supreme Court, the Eleventh Court of Appeals, or the highest state court in which the case arose. 

Qualified immunity must be plead as an affirmative defense by the defendant official, and becomes a matter for the court to decide, even if it requires a factual determination as to whether the defendant acted reasonably under the circumstances, and the court should rule on the issue of qualified immunity at the earliest possible stage of litigation. An individual defendant in federal court may immediately appeal a denial of qualified immunity, even if a prior appeal of the denial of qualified immunity was unsuccessful, and even if other claims remain for trial. Until the issue of qualified immunity is decided, the defendant official may resist discovery, and there is authority to the effect that he may stay the entire proceedings during an appeal of the denial of qualified immunity. While the Supreme Court has rejected a heightened pleading standard for claims against local governments, a plaintiff must nevertheless plead facts with specificity to overcome an individual capacity defendant's qualified immunity. 

When sued in their individual capacity for damages or injunctive relief, while prosecutors are entitled to absolute immunity when sued in their individual capacities for damages only. In any event, as discussed above, all individual capacity defendants are, at a minimum, entitled to qualified immunity.

The Reconstruction Civil Rights Acts did not contain a statute of limitations for section 1983 actions, and it is appropriate to adopt a local time limitation so long as it is not inconsistent with federal law. The Supreme Court has held that section 1983 is best characterized as a tort action for the recovery of damages, and therefore held that the appropriate statute of limitations to be adopted is the state statute applicable to personal injury actions. 

IV. ATTORNEY'S FEES

The Civil Rights Attorney's Fees Awards Act of 1976 provides that one who prevails in a section 1983 action is entitled to recover attorneys' fees. There is little doubt that the addition of this attorney's fee provision fueled the growth in the number of section 1983 cases that have been filed because it has been held that prevailing plaintiffs are entitled to recover attorneys' fees unless special circumstances would render such an award unjust, while a prevailing defendant may be awarded attorneys' fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." The different standards derive from 42 U.S.C. § 1988's generally pro-plaintiff and pro-civil rights orientation and protects the defendant only from groundless litigation.

AN OVERVIEW OF SUPREME COURT AND ELEVENTH CIRCUIT PRECEDENT

IAN D. FORSYTHE

Hilyard, Bogan, Palmer & Lockeby, P.A.

105 East Robinson Street, Suite 201

Orlando, Florida 32801

I. INTRODUCTION AND HISTORY

42 U.S.C. § 1983, commonly referred to as "section 1983" provides:

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 citizenof 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.

42 U.S.C. § 1983 (emphasis added).

Section 1983 was enacted on April 20, 1871 as part of the Civil Rights Act of 1871, and is also known as the "Ku Klux Klan Act" because one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the southern states, especially by the Ku Klux Klan. 

While the existing law protected all citizens in theory, its protection in practice was unavailable to some because those persons charged with the enforcement of the laws were unable or unwilling to do so. The Act was intended to provide a private remedy for such violations of federal law, and has subsequently been interpreted to create a species of tort liability. 

The number of cases that have been brought under section 1983 has dramatically increased since 1961 when the Supreme Court decided Monroe v. Pape. In Monroe, the Supreme Court held that a police officer was acting "under color of state law" even though his actions violated state law. This was the first case in which the Supreme Court allowed liability to attach where a government official acted outside the scope of the authority granted to him by state law. Since Monroe v. Pape was decided, an extensive body of law has developed to govern section 1983 claims. This article is intended to provide an overview of that extensive body of law, and will include seminal precedent from the United States Supreme Court and the Eleventh Circuit Court of Appeals--a comprehensive study of all law related to section 1983 is beyond the scope of this article.

II. ELEMENTS OF A SECTION 1983 CLAIM

(i) "Every person . . ."

Only "persons" under the statute are subject to liability. A state is not a person subject to suit under section 1983, but a state officer can be sued in his official capacity for prospective or injunctive relief despite the fact that an suit against a government official in his official capacity represents nothing more than a suit against the government entity itself! Despite this logical inconsistency, the current state of the law is that a state may not be sued for damages, but may be sued for declaratory or injunctive relief. Municipalities and local governments are persons subject to suit for damages and prospective relief, but the United States Government is not. Individual employees of federal, state and local government may be sued in their individual capacities for damages, declaratory or injunctive relief.

While the determination of who is a "person" is a matter of federal statutory interpretation, the matter of who has the capacity to be sued is determined by the law of the forum state. Likewise, the law of the forum is to be applied in actions under section 1983 where the law of section 1983 provides no guidance. 

(ii) ". . . who under color of [state law] . . ."

The traditional definition of acting under the color of state law requires that the defendant have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law," and such actions may result in liability even if the defendant abuses the position given to him by the state. A private actor may also act under color of state law under certain circumstances. For example, it has been held that a physician who contracts with the state to provide medical care to inmates acts under the color of state law. For all practical purposes, the "color of state law" requirement is identical to the "state action" prerequisite to constitutional liability. 

(iii) ". . . subjects or causes to be subjected . . ."

Section 1983 does not impose a state of mind requirement independent of the underlying basis for liability, but there must be a causal connection between the defendant's actions and the harm that results. In order to hold a local government liable under section 1983, the Supreme Court has interpreted this causation element to require that the harm be the result of action on the part of the government entity that implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers, or the result of the entity's custom. 

Further, the entity's policy or custom must have been the "moving force" behind the alleged deprivation. This "custom or policy" requirement is a dramatic departure from the rule of respondent superior that prevails in many common law actions. 

A local government is said to have an unconstitutional policy when it fails to train its employees, and the failure to train amounts to deliberate indifference to an obvious need for such training, and the failure train will likely result in the employee making a wrong decision. An unconstitutional policy may also exist if an isolated action of a government employee is dictated by a "final policymaker," or if the authorized policymaker approves a subordinate's decision and the basis for it. However, a supervisor can only be liable in his individual capacity if he directly participates in causing the harm--relying upon respondent superior is insufficient. The Supreme Court has rejected the notion that a plaintiff must meet a heightened pleading standard to state a claim against a municipality for an unconstitutional custom or policy. 

(iv) ". . . [any person to] the deprivation of rights . . ."

Section 1983 is not it self a source of substantive rights, it merely provides a method for the vindication of rights elsewhere conferred in the United States Constitution and Laws. Therefore, a plaintiff may prevail only if he can demonstrate that he was deprived of rights secured by the United States Constitution or federal statutes. It is beyond the scope of this article to discuss all of the rights available under the United States Constitution, nevertheless, this article will provide an overview of perhaps the most utilized of all constitutional provisions--the Fourteenth Amendment Due Process Clause [hereinafter "the Due Process Clause"].

The Supreme Court has held that the Due Process Clause was not intended to supplant tort law, or to become "a font of tort law to be superimposed upon whatever systems may already be administered by the states." Against this backdrop, to state a claim for a deprivation of Due Process, a plaintiff must show: (1) that he possessed a constitutionally protected property interest; and (2) that he was deprived of that interest without due process of law. Due process property interests are created by "existing rules or understandings that stem from an independent source such as state law--rules or understanding that secure certain benefits and that support claims of entitlement to those benefits." To have a property interest protected by the Due Process Clause, "a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." 

While the existence of a protected property interest is decided by reference to state law, the determination of whether due process was accorded is decided by reference to the Constitution. Due process requires that "a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case,” “but the state does not have to provide the same remedies available under section 1983 in order to satisfy due process. 

In construing the Due Process Clause, the United States Supreme Court has held that negligent acts by state actors do not effect a "deprivation" for the purposes of the Due Process Clause, and the random and unauthorized conduct of a government actor, even if intentional, does not implicate the Due Process Clause if the state provides a meaningful post-deprivation remedy, such as, for example, a tort remedy in its own courts. However, where the state can feasibly provide a pre-deprivation hearing, it must do so regardless of the post-deprivation remedies available, and in the absence of a special relationship created or assumed by the state, a state's failure to protect an individual from violence or injury caused by private actors cannot state a violation of the Due Process Clause. 

In addition to protection against deprivations of procedural due process, the Due Process Clause has two substantive components--the substantive due process simpliciter, and incorporated substantive due process. In order to state a claim for a violation of the substantive due process simpliciter, the plaintiff must demonstrate that the defendant engaged in conduct that was "arbitrary, or conscience shocking, in a constitutional sense." This form of due process has very limited application, but, in contrast to certain procedural due process claims, the existence of adequate post-deprivation remedies does not bar a substantive due process claim. With respect to incorporated substantive due process, the plaintiff may state a claim by proving a violation of one of the Bill of Rights. The Supreme Court has held that one of the substantive elements of the Due Process Clause protects those rights that are fundamental--rights that are implicit in the concept of ordered liberty, and has, over time, held that virtually all of the Bill of Rights protect such fundamental rights and has likewise held that they apply to the states through the "liberty" interest of the Due Process Clause. 

However, the Court has held that when a specific provision within the Bill of Rights already provides protection, the more generalized notion of due process should not be used to define constitutional rights. 

In addition to providing a remedy for deprivations of constitutional rights, section 1983 also makes actionable violations of federal "Laws." A violation of a federal statute is cognizable only when the violation trammels a right secured by federal law. However, a statute is said to create a federal right only when "the provision in question is intended to benefit the putative plaintiff," unless it reflects merely a congressional preference for a certain kind of conduct rather than a binding obligation on the government unit, or unless the putative plaintiff's interest is too vague and amorphous such that it is beyond the competence of the judiciary to enforce. 

(v) " . . . shall be liable . . . in an action at law, Suit in equity, or other proper proceeding for redress . . . "

There is no requirement that the plaintiff sue in federal court because state courts have concurrent jurisdiction, and the usual rule is exhaustion of administrative and judicial state remedies is not a prerequisite to a section 1983 action. Also, the existence of concurrent state remedies is not a bar to a section 1983 action. With respect to the extent of damages available, the Supreme Court has noted that the basic purpose of a section 1983 damages award is to compensate the victims of official misconduct, and therefore held that there is no limit on actual damages if they can be proven. But where they are not proved, only nominal damages of $1.00 may be awarded. Punitive damages may also be awarded, but not against a municipality. Injunctive relief is also permitted. 

III. DEFENSES AND IMMUNITIES

States and state agencies are entitled to Eleventh Amendment immunity in federal court, but local governments have no immunity from damages flowing from their constitutional violations, and may not assert the good faith of its agents as a defense to liability. Further, state law sovereign immunity and state law limitations on damages do not protect local governments from liability under section 1983, and state laws requiring pre-suit notification prior to initiating an action against the state or its subdivisions similarly do not apply. Therefore, local governments are left in the unique and unhappy situation of being subject to suit without the benefit of any form of immunity.

In contrast to the distinct lack of immunity available to local governments, individual capacity defendants are protected by qualified immunity. Qualified immunity is a powerful tool that shields individual officials who are performing discretionary activities unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." A government official is entitled to qualified immunity unless his "act is so obviously wrong, in the light of preexisting law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing." The qualified immunity inquiry is purely objective--the subjective intentions of the actor is irrelevant. Qualified immunity is not only immunity from liability, but it is immunity from suit as well, and shields individual capacity defendants even where a constitutional violation may have occurred. Likewise, a court should scrutinize a plaintiff's claim to determine if the plaintiff states a constitutional claim at all, prior to analyzing whether the defendant is entitled to qualified immunity. 

The burden of proving that the law was clearly established cannot be carried by stating constitutional rights in general terms--a plaintiff within the eleventh circuit must cite to specific decisions of the United States Supreme Court, the Eleventh Court of Appeals, or the highest state court in which the case arose. 

Qualified immunity must be plead as an affirmative defense by the defendant official, and becomes a matter for the court to decide, even if it requires a factual determination as to whether the defendant acted reasonably under the circumstances, and the court should rule on the issue of qualified immunity at the earliest possible stage of litigation. An individual defendant in federal court may immediately appeal a denial of qualified immunity, even if a prior appeal of the denial of qualified immunity was unsuccessful, and even if other claims remain for trial. Until the issue of qualified immunity is decided, the defendant official may resist discovery, and there is authority to the effect that he may stay the entire proceedings during an appeal of the denial of qualified immunity. While the Supreme Court has rejected a heightened pleading standard for claims against local governments, a plaintiff must nevertheless plead facts with specificity to overcome an individual capacity defendant's qualified immunity. 

Private individuals who perform state functions, and private corporations who contract with the government may not be entitled to qualified immunity. State and local legislators and judges are protected by absolute immunity when sued in their individual capacity for damages or injunctive relief, while prosecutors are entitled to absolute immunity when sued in their individual capacities for damages only. In any event, as discussed above, all individual capacity defendants are, at a minimum, entitled to qualified immunity.

The Reconstruction Civil Rights Acts did not contain a statute of limitations for section 1983 actions, and it is appropriate to adopt a local time limitation so long as it is not inconsistent with federal law. The Supreme Court has held that section 1983 is best characterized as a tort action for the recovery of damages, and therefore held that the appropriate statute of limitations to be adopted is the state statute applicable to personal injury actions. 

IV. ATTORNEY'S FEES

The Civil Rights Attorney's Fees Awards Act of 1976 provides that one who prevails in a section 1983 action is entitled to recover attorneys' fees. There is little doubt that the addition of this attorney's fee provision fueled the growth in the number of section 1983 cases that have been filed because it has been held that prevailing plaintiffs are entitled to recover attorneys' fees unless special circumstances would render such an award unjust, while a prevailing defendant may be awarded attorneys' fees only "upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." The different standards derive from 42 U.S.C. § 1988's generally pro-plaintiff and pro-civil rights orientation and protects the defendant only from groundless litigation.