Checklist · Constitutional

Bringing a Section 1983 Civil Rights Claim: A Practical Checklist

42 U.S.C. § 1997

Type
Checklist
Jurisdiction
National
Date
2025-01-26
Topic
Constitutional

A working checklist for the first ninety days of a constitutional tort case. Phases one through four are the intake triage that cannot wait: computing the borrowed limitations period and the far shorter state tort claims act notice deadline, preserving body camera and dispatch evidence before the retention policy destroys it, identifying the specific constitutional provision that governs, and screening the claim against the Heck bar and PLRA exhaustion. Phases five through nine build the case architecture: identifying defendants and pleading capacity correctly, developing the Monell theory that avoids qualified immunity entirely, screening for absolute immunities, and doing the clearly-established research at the level of particularity the Supreme Court actually requires. Phases ten through fourteen make the filing decisions: supplemental state claims and their notice traps, the state civil rights statutes that eliminate qualified immunity, forum selection, damages and indemnification, and drafting a complaint that survives Iqbal and anticipates the immunity motion. Phases fifteen through eighteen cover the litigation itself, including the discovery fights over personnel files, the interlocutory appeal that will interrupt the case, expert designation, and the Rule 68 problem. A worked example runs a fictional traffic stop through the whole sequence.

Bringing a Section 1983 Civil Rights Claim: A Practical Checklist

Constitutional > Civil Rights | Published 26 January 2025 - Updated 14 April 2026 | UpLaw - uplaw.us

Three clocks run in every civil rights case and only one of them is generous. The federal limitations period, borrowed from state personal injury law, is usually two or three years. The state tort claims act notice deadline for the supplemental state claims is frequently ninety days or less, it runs from the incident, and it is generally unforgiving. And the body camera footage may be on a retention schedule measured in weeks. Compute all three before the second client meeting.

Keywords: § 1983 intake, notice of claim, body camera preservation, Heck screen, PLRA exhaustion, Monell, final policymaker, clearly established, capacity, § 1988, Rule 68, indemnification

Work this in order. The doctrinal treatment is in Section 1983 Litigation: A Comprehensive Guide to Constitutional Tort Claims. The narrative treatment of the doctrine that decides most of these cases is Qualified Immunity and the Clearly Established Right.

Our running example. Marcus Ellery (fictional) was tased by Officer Dale Brunner (fictional) of the fictional City of Halberton during a traffic stop for expired registration, fell, and fractured his skull. Ellery was later charged with resisting and pleaded to a lesser non-resisting offense. There is body camera footage.

Phase 1 — The three clocks

  • [ ] Identify the forum state's personal injury limitations period, which supplies the § 1983 period. Wilson v. Garcia, 471 U.S. 261 (1985); Owens v. Okure, 488 U.S. 235 (1989).
  • [ ] Determine the accrual date under federal law — when the plaintiff had a complete and present cause of action. Wallace v. Kato, 549 U.S. 384 (2007).
  • [ ] Identify every state tort claims act notice requirement that applies to any supplemental state claim, for every governmental defendant, and calendar it today.
  • [ ] Confirm whether the state notice statute has a different deadline for different entities (city, county, state, school district, transit authority) — it usually does.
  • [ ] If the plaintiff is incarcerated, identify the grievance system deadlines and whether the PLRA exhaustion window has already closed.
  • [ ] Check for tolling — minority, incapacity, continuing violation, equitable tolling under state law.
  • [ ] Check whether a § 1986 claim is contemplated; it carries a one-year period written into the statute.

Why it matters, and the traps. The notice-of-claim deadline is the single most common malpractice event in this practice. It is short, it runs from the incident rather than from discovery in many states, and it is often jurisdictional. Note also that a state notice requirement may not be applied to the § 1983 claim itself. Felder v. Casey, 487 U.S. 131 (1988) — so a missed notice kills the state claims and leaves the federal claim alive, which changes the case but does not end it.

Serve the notice even if you have not decided whether to sue. It costs almost nothing and it preserves everything.

Phase 2 — Preserve, before the retention policy runs

  • [ ] Send a preservation demand to every agency involved, by a method that creates proof of receipt.
  • [ ] Specifically demand: body-worn camera and in-car video; CAD/dispatch logs and radio traffic; jail booking video and intake records; use-of-force reports; incident and supplemental reports; taser or weapon download logs; medical and EMS records; and surveillance video from nearby businesses.
  • [ ] Identify the agency's video retention period and whether it is shorter for "non-evidentiary" incidents.
  • [ ] Submit a public records request under the state open records act in parallel — it is often faster than litigation and it creates a record.
  • [ ] Preserve the client's own evidence: photographs of injuries taken serially over weeks, clothing, medical records, and the client's own account recorded early.
  • [ ] Identify and locate civilian witnesses and any bystander video before it is deleted.
  • [ ] Issue an internal litigation hold for the client's materials.

Why it matters, and the traps. Retention schedules destroy footage on a routine basis, and the deletion is usually not sanctionable if it happened under a neutral policy before any preservation demand. The demand converts routine deletion into potential spoliation. Send it in week one.

Photograph injuries repeatedly. Bruising evolves and often looks worse at day four than day one; a single set of photographs from the emergency room undersells the injury.

See Issuing a Litigation Hold and Preserving ESI: A Practical Checklist and The Freedom of Information Act and State Public Records Laws: A Comprehensive Guide.

Phase 3 — Identify the constitutional hook

  • [ ] Determine which specific constitutional provision governs the conduct. Do not default to substantive due process — where a specific provision applies, the claim must be analyzed under it. Graham v. Connor, 490 U.S. 386, 395 (1989); Albright v. Oliver, 510 U.S. 266 (1994).
  • [ ] For force during a seizure: Fourth Amendment, objective reasonableness, Graham factors.
  • [ ] For force against a pretrial detainee: Fourteenth Amendment, objective standard. Kingsley v. Hendrickson, 576 U.S. 389 (2015).
  • [ ] For force or conditions affecting a convicted prisoner: Eighth Amendment, deliberate indifference. Farmer v. Brennan, 511 U.S. 825 (1994).
  • [ ] For prosecution without probable cause: Fourth Amendment malicious prosecution. Thompson v. Clark, 596 U.S. 36 (2022); Manuel v. City of Joliet, 580 U.S. 357 (2017).
  • [ ] For adverse action after speech: First Amendment retaliation, with Nieves v. Bartlett, 587 U.S. 391 (2019), and Gonzalez v. Trevino, 602 U.S. 653 (2024), if the adverse action was an arrest.
  • [ ] For deprivation of a benefit, license, or job: procedural due process — identify the property or liberty interest in state law and the process that was due under Mathews v. Eldridge, 424 U.S. 319 (1976).
  • [ ] For a federal statutory right, run the Gonzaga/Talevski analysis before assuming § 1983 enforceability. Health & Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (2023).

Why it matters, and the traps. The provision determines the standard, the standard determines the evidence, and the evidence determines the case. A complaint pleading "excessive force in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments" signals that counsel has not done this analysis, and it invites a motion that narrows the case on the defendant's terms.

For Ellery: he was seized, not detained or convicted, at the moment of the tasing. The Fourth Amendment governs. Full stop.

Phase 4 — Screen for Heck and habeas

  • [ ] Identify every criminal charge arising from the incident and its disposition.
  • [ ] Determine whether success on the civil claim would necessarily imply the invalidity of any outstanding conviction. Heck v. Humphrey, 512 U.S. 477 (1994).
  • [ ] If the plaintiff pleaded to resisting or obstructing, determine what facts the plea necessarily established and whether the force claim is consistent with them.
  • [ ] Confirm the claim does not challenge the fact or duration of confinement, which belongs in habeas. Preiser v. Rodriguez, 411 U.S. 475 (1973).
  • [ ] Where a fabrication or malicious prosecution theory exists, confirm favorable termination under Thompson v. Clark.

Why it matters, and the traps. An excessive force claim usually survives Heck — force can be excessive even where the arrest and a resisting conviction are valid — but "usually" is doing work. If the conviction rested on a finding that the plaintiff violently resisted at the exact moment force was used, the claim may be barred.

Ellery pleaded to a lesser non-resisting offense. Get the plea colloquy transcript. What he admitted determines whether Heck is a problem.

Phase 5 — Screen for PLRA exhaustion

  • [ ] Determine whether the plaintiff was a prisoner at the time of filing. The PLRA turns on status at filing, not at the incident.
  • [ ] Obtain the facility's grievance policy in effect at the time.
  • [ ] Confirm proper exhaustion — every step, every deadline. Woodford v. Ngo, 548 U.S. 81 (2006).
  • [ ] Document any basis for unavailability: dead end, opaque process, or thwarting by intimidation. Ross v. Blake, 578 U.S. 632 (2016).
  • [ ] Note that exhaustion is an affirmative defense, not a pleading requirement. Jones v. Bock, 549 U.S. 199 (2007) — do not plead exhaustion into a defense.
  • [ ] Screen for the physical injury requirement for mental or emotional damages, 42 U.S.C. § 1997e(e), and the three strikes bar, 28 U.S.C. § 1915(g).

Phase 6 — Defendants and capacity

  • [ ] Identify every individual whose conduct contributed — including officers who failed to intervene, supervisors present on scene, and dispatchers or medical staff.
  • [ ] Determine whether each entity is an arm of the state (immune, not a "person") or a political subdivision (suable). Will v. Michigan Department of State Police, 491 U.S. 58 (1989).
  • [ ] Plead individual capacity expressly for damages claims.
  • [ ] Plead official capacity only where seeking prospective relief against a state official under Ex parte Young, 209 U.S. 123 (1908), or where it is the intended vehicle for municipal liability.
  • [ ] For any private defendant (contract medical provider, private security, tow operator), run the state action tests — public function, joint action, compulsion, nexus. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982); West v. Atkins, 487 U.S. 42 (1988).
  • [ ] Name Doe defendants where identities are unknown, and calendar the amendment deadline against the limitations period and Rule 15(c) relation-back constraints.

Why it matters, and the traps. Relation back for Doe defendants is a trap. Under Krupski v. Costa Crociere S.p.A., 560 U.S. 538 (2010), relation back turns on the new party's knowledge of a mistake concerning identity — and most circuits hold that a lack of knowledge of a defendant's name is not a "mistake." Identify individuals before the period runs. Use the public records act aggressively for this.

Failure-to-intervene claims are chronically omitted. An officer who had a realistic opportunity to prevent the use of excessive force and did not is liable in most circuits.

Phase 7 — Build the Monell theory

  • [ ] Identify which of the four routes applies: express policy, final policymaker decision, custom or practice, or failure to train, supervise, or discipline.
  • [ ] Obtain the written policy in effect via a public records request before filing.
  • [ ] Determine who holds final policymaking authority for the relevant function under state law. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).
  • [ ] For failure to train: identify a pattern of similar violations putting the entity on notice. Connick v. Thompson, 563 U.S. 51 (2011).
  • [ ] Consider single-incident liability only where the need for training was obvious in the Canton sense. City of Canton v. Harris, 489 U.S. 378 (1989).
  • [ ] Request aggregate complaint and discipline data — how many similar complaints, how many sustained, what discipline followed.
  • [ ] Note: municipalities have no qualified immunity, Owen v. City of Independence, 445 U.S. 622 (1980), but are not liable for punitive damages, City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981).

Why it matters, and the traps. The Monell claim is the route around qualified immunity. It reaches a solvent defendant and it survives even where the individual officer is immune, because immunity is personal.

Plead it at the outset. Adding it after the individual claim is dismissed on immunity grounds is usually barred by the limitations period, and courts are unsympathetic to late Monell amendments that reopen closed discovery.

Expect a motion to bifurcate and stay Monell discovery. Oppose it, or negotiate a phased schedule — a stay that lasts through the individual claim's resolution effectively kills the theory.

Phase 8 — Immunity screen

  • [ ] Screen every defendant for absolute immunity: judges (Stump v. Sparkman, 435 U.S. 349 (1978)), prosecutors for advocacy functions (Imbler v. Pachtman, 424 U.S. 409 (1976)), legislators (Bogan v. Scott-Harris, 523 U.S. 44 (1998)), witnesses (Rehberg v. Paulk, 566 U.S. 356 (2012)).
  • [ ] For prosecutors, distinguish advocacy from investigative or administrative conduct — only the former is absolutely immune. Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
  • [ ] Confirm the conduct was discretionary, not ministerial — qualified immunity protects only the former.
  • [ ] For private individuals working for government, check Filarsky v. Delia, 566 U.S. 377 (2012) (immunity available) against Richardson v. McKnight, 521 U.S. 399 (1997) (private firm employees, no immunity).

Phase 9 — Do the clearly-established research properly

  • [ ] Identify controlling authority — Supreme Court and the governing circuit — holding materially similar conduct unlawful.
  • [ ] If none exists, look for a robust consensus of persuasive authority. District of Columbia v. Wesby, 583 U.S. 48, 63 (2018).
  • [ ] Confirm the precedent predates the conduct.
  • [ ] Write out the right at the correct level of particularity — not "the Fourth Amendment prohibits excessive force," but the specific conduct in the specific circumstances. Mullenix v. Luna, 577 U.S. 7 (2015); White v. Pauly, 580 U.S. 73 (2017).
  • [ ] Preserve the obviousness argument under Hope v. Pelzer, 536 U.S. 730 (2002), and Taylor v. Riojas, 592 U.S. 7 (2020), where the conduct is egregious on its face.
  • [ ] Build the factual record to match the best precedent, and plead facts accordingly.

Why it matters, and the traps. This research should happen before the complaint, not in response to the motion. If no case is close, the case's real value is in the Monell claim, the state claims, or a state civil rights statute — and that changes how the complaint is structured.

Write a one-page memo naming the best case and the factual distinctions the defense will draw. If you cannot write that page, the individual-capacity claim is speculative.

Phase 10 — State claims, and the state civil rights statutes

  • [ ] Identify available state tort claims: battery, assault, false arrest and imprisonment, IIED, negligence, negligent hiring/retention/supervision, and wrongful death.
  • [ ] Confirm the notice of claim was served (Phase 1) and check for damages caps and immunity provisions under the state tort claims act.
  • [ ] Determine whether the state has a civil rights statute without qualified immunity — e.g., Colo. Rev. Stat. § 13-21-131; N.M. Stat. Ann. §§ 41-4A-1 to -13.
  • [ ] Check whether the state constitution provides broader protection than its federal analogue.
  • [ ] Assess whether the state claim is better filed in state court and structured to defeat removal.

Why it matters, and the traps. In a state with a Colorado- or New Mexico-style statute, the federal claim may be the secondary one. A plaintiff who files everything in federal court has voluntarily entered the forum where the immunity defense is strongest.

Phase 11 — Damages, indemnification, collectability

  • [ ] Document medical damages, lost wages, and future care.
  • [ ] Develop general damages evidence — testimony from family and coworkers about changes since the incident.
  • [ ] Confirm that damages cannot rest on the abstract value of the right. Memphis Community School District v. Stachura, 477 U.S. 299 (1986).
  • [ ] Preserve nominal damages as a route to prevailing-party status. Carey v. Piphus, 435 U.S. 247 (1978); Uzuegbunam v. Preczewski, 592 U.S. 279 (2021).
  • [ ] Assess punitive damages against individuals under Smith v. Wade, 461 U.S. 30 (1983) — not available against the municipality.
  • [ ] Determine the indemnification obligation by statute, ordinance, or collective bargaining agreement.
  • [ ] Identify applicable insurance or risk pool coverage.

Why it matters, and the traps. Officers are almost always indemnified, which means an individual-capacity judgment is usually paid by the entity anyway — but only within the indemnification statute's terms, which frequently exclude willful misconduct or punitive damages. Read the statute before valuing the case.

Phase 12 — Forum

  • [ ] Assess federal versus state court, remembering that state courts have concurrent jurisdiction. Felder v. Casey, 487 U.S. 131 (1988).
  • [ ] Consider whether the state forum is preferable for the state civil rights claim and whether the case can be structured to resist removal.
  • [ ] Assess the circuit's qualified immunity jurisprudence and its treatment of the Kingsley extension question.
  • [ ] Assess jury pool and local practice realities.

Phase 13 — Draft the complaint

  • [ ] Plead the incident chronologically and concretely — what each defendant did, when, in response to what, with what warning.
  • [ ] Satisfy Ashcroft v. Iqbal, 556 U.S. 662 (2009), with facts, not conclusions.
  • [ ] Plead capacity for each defendant expressly.
  • [ ] Plead the specific constitutional provision and the standard it supplies.
  • [ ] Plead the Monell theory by route, with the supporting facts obtained pre-suit.
  • [ ] Plead failure to intervene against every officer present.
  • [ ] Plead state claims with the notice allegations.
  • [ ] Include a jury demand and a § 1988 fee request.
  • [ ] Attach or quote the policy obtained by records request where it supports the Monell theory.

See Drafting a Federal Civil Complaint: A Practical Checklist.

Phase 14 — Plan for the immunity motion and the appeal

  • [ ] Expect a Rule 12(b)(6) motion asserting qualified immunity and a request to stay discovery. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
  • [ ] Oppose a blanket stay; propose phased discovery limited to the facts bearing on immunity.
  • [ ] Expect an interlocutory appeal if the motion is denied. Mitchell v. Forsyth, 472 U.S. 511 (1985).
  • [ ] Prepare to move to dismiss the appeal where the defendant is really contesting evidence sufficiency. Johnson v. Jones, 515 U.S. 304 (1995).
  • [ ] Budget the case for a two-year interruption if the appeal is taken.
  • [ ] Consider whether the Monell and state claims can proceed during the individual defendants' appeal.

Phase 15 — Discovery

  • [ ] Serve targeted requests for: all video, retention policies, CAD and radio, use-of-force and incident reports, training records and curricula, certification, the officer's complete personnel and internal affairs file, prior complaints, and disciplinary outcomes.
  • [ ] For Monell: aggregate data on similar complaints agency-wide, sustained rates, and policy revision history.
  • [ ] Negotiate a protective order early; a workable confidentiality order buys access to personnel files that would otherwise draw a blanket objection.
  • [ ] Anticipate the law enforcement privilege and state personnel-confidentiality statutes; brief them once, thoroughly.
  • [ ] Identify Garrity-compelled statements and their derivative-use restrictions. Garrity v. New Jersey, 385 U.S. 493 (1967).
  • [ ] Depose the officer, the supervisor, the training officer, and a Rule 30(b)(6) designee on policy and training.

See Federal Civil Discovery: Mastering the Tools, Rules, and Pitfalls.

Phase 16 — Experts

  • [ ] Designate a police practices expert on conformity with generally accepted standards — not on constitutionality, which is the court's province.
  • [ ] Designate medical causation and, where relevant, biomechanics.
  • [ ] Consider economics for future care and lost earning capacity.
  • [ ] Prepare for Daubert motions in both directions. See Challenging an Expert Under Daubert and Rule 702: A Practical Checklist.

Phase 17 — Settlement and the Rule 68 problem

  • [ ] Model the fee exposure on both sides early. § 1988 fees frequently exceed the damages.
  • [ ] Anticipate a Rule 68 offer of judgment, which cuts off post-offer fees in § 1983 cases because § 1988 defines fees as costs. Marek v. Chesny, 473 U.S. 1 (1985).
  • [ ] Evaluate any offer against the lodestar accrued to date plus realistic future fees, not just the damages number.
  • [ ] Address fee waiver demands in settlement carefully — they are permitted, Evans v. Jeff D., 475 U.S. 717 (1986), and they create an obvious conflict between client and counsel that must be handled under the applicable rules of professional conduct.
  • [ ] Consider non-monetary relief — policy change, training, an apology, expungement — which is often available and often more valuable to the client than the marginal dollar.

See Legal Ethics and Professional Responsibility: A Comprehensive Guide to the Model Rules and Drafting and Closing a Settlement Agreement: A Practical Checklist.

Phase 18 — Trial preparation

  • [ ] Draft jury instructions early — they discipline the summary judgment briefing.
  • [ ] Confirm the court will not instruct on qualified immunity as such, and prepare special interrogatories if the court intends to submit predicate facts.
  • [ ] Prepare the video presentation — synchronized, timestamped, with a stipulated foundation if possible.
  • [ ] Prepare motions in limine on prior bad acts, the plaintiff's criminal history, and the officer's disciplinary record.
  • [ ] Preserve the § 1988 fee application record throughout — contemporaneous, task-based time entries.

See Preparing for Trial: A Pretrial Order and Trial Readiness Checklist.

Worked example — Ellery v. Brunner and City of Halberton

Phase 1. State period is two years. The city's notice-of-claim deadline is 120 days; the county's is 90. Notice served on day 31 to both.

Phase 2. Preservation demand served day 3. The department's non-evidentiary retention is 90 days — the footage would have been gone by month four. Public records request produced the use-of-force policy and the taser deployment log within six weeks.

Phase 3. Fourth Amendment. Ellery was seized. Graham governs: expired registration is the least severe offense category; he was seated and belted; the reach toward the passenger seat is the contested fact and the footage answers it.

Phase 4. Ellery pleaded to failure to comply with a lawful order, not resisting. The colloquy establishes only that he did not immediately produce his license. Heck does not bar the force claim.

Phase 6. Brunner, plus the second officer who stood by (failure to intervene), plus the City. The county is not involved — Ellery was never booked.

Phase 7. The policy authorizes taser deployment upon "furtive movement toward an unseen area" with no threat assessment requirement. That is an express-policy Monell theory, which is the strongest kind. Records also show eleven similar deployments in three years with no sustained complaints — a custom and failure-to-discipline theory in the alternative.

Phase 9. The circuit has a decision holding that tasing a non-violent misdemeanant who is not fleeing and poses no immediate threat violates the Fourth Amendment. The subject there was standing rather than seated. Counsel writes the one-page memo: the precedent is close, the distinction is not material, and if the court disagrees the Monell claim carries the case.

Phase 11. Medical specials of $84,000, a documented cognitive deficit, and an indemnification ordinance covering compensatory but not punitive damages.

Phase 14. Expect the immunity motion, expect the stay request, propose phased discovery on the incident facts and the policy, and preserve the Monell track.

Phase 17. Model the fee exposure at $220,000 through summary judgment. Any Rule 68 offer must be evaluated against that, not against the medical specials.

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