The Interrelationship of Immunity and the Prima Facie Case in Section 1983 and Bivens Actions

42 U.S.C. § 1983 creates a cause of action for one deprived of “any rights, privileges, or immunities secured by the Constitution and laws” of the United States under color of state law, custom or usage. It provides a remedy against state or municipal officials, private parties conspiring with such officials or municipalities themselves to vindicate violations of existing federal rights enjoyed by “any citizen of the United States or other persons within the jurisdiction thereof.”  In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized a similar implied right of action against federal officials for violations of constitutional rights. The courts generally view Bivens as the federal counterpart of section 1983, especially with regard to immunity analysis.

The Supreme Court’s past treatment of the section 1983 and Bivens actions has created a strange dialectic of offering expansive rights without effective remedy.’ Culminating in the key decision of Parratt v. Taylors, the Court continually suggested just how broad the actionability of section 1983 and Bivens was, without effectively delineating what was really needed to state a prima facie case for most deprivations of civil rights. Simultaneously, the Court severely restricted the remedies available to civil rights plaintiffs by expounding broad immunity doctrines to protect defendant officials. The result was a proliferation of much senseless litigation because most civil rights plaintiffs could state a cause of action, but few public officials would be liable for damages.

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Joseph D. McCann, The Interrelationship of Immunity and the Prima Facie Case in Section 1983 and Bivens Actions, 21 Gonz. L. Rev. 117 (1985).

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