Fill and Sign the Jury Instruction 191 Miscellaneous Issues Respondent Superior Form

1.9.1 Miscellaneous Issues Respondeat Superior (Under 42 USC § 1983) The rules of law that apply to the Plaintiff's claim against the [City] are different from the rules of law that apply to the Plaintiff's claims against the individual Defendant, and each claim must be considered separately. I will first explain the rules or principles of law you must apply in deciding the Plaintiff's claim against the [City] and will then discuss the Plaintiff’s claims against the individual Defendant. Ordinarily, a corporation - - including a public body or agency such as the [City of ] - - is legally responsible for the acts of its employees carried out in the regular course of their job duties as employees. This is known in the law as the doctrine of "respondeat superior" which means "let the superior respond" for any losses or injuries wrongfully caused by its employees in the performance of their jobs. This doctrine does not apply, however, in a case such as this where the Plaintiff claims a violation of constitutional rights. So, in this case, the [City of ] can be held liable only if you find that the deprivation of the Plaintiff's constitutional rights was the direct result of the [City’s] ordinance, regulation, decision, policy, or custom. A governmental entity is responsible only when an injury is inflicted through the execution of its policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. It is not enough merely to show that a [City] employee caused the Plaintiff’s injury. [A policy or custom means a persistent, widespread, or repetitious course of conduct by policy makers with final authority to establish the [City’s] policy with respect to the action ordered. It may be written, or it may be a consistent series of decisions and actions adopted or approved by the policy makers.] [A policy or custom means a persistent, widespread or repetitious course of conduct by public employees which, although not authorized by, or which may even be contrary to written law or express municipal policy, is so consistent, pervasive and continuous that the [City] policy makers must have known of it, so that, by their acquiescence, such policy or custom has acquired the force of law without formal adoption or announcement.] The Court has determined that the [City's] policy makers, within the meaning of this instruction, were the [City Manager and the City Council]. Therefore, if you find that the acts of the [official policy maker] deprived the Plaintiff of constitutional rights, the [City of] is liable for such deprivations. ANNOTATIONS AND COMMENTS In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that municipalities may not be held liable under Section 1983 on a theory of respondeat superior, but may only be held liable for the execution of a government policy or custom. [I]t 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, inflicts the injury that the government as an entity is responsible under § 1983. Id. at 694, 98 S.Ct. at 2037-38. To establish a policy or custom, the Plaintiff must show a persistent and widespread 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.” Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991) (internal citations omitted); Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994). Later, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court modified the “policy or custom” requirement to include “a single decision by municipal policy makers under appropriate circumstances.” Id. At 480, 106 S.Ct. at 1298. Specifically, “where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly,” provided that “the decision maker possesses final authority to establish municipal policy with respect to the action ordered.” Id. at 481, 106 S.Ct. at 1299. Also, in City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed. 2d 107 (1988), the Supreme Court held that a municipal official does not have final policy making authority over a matter when that official’s decisions are subject to meaningful administrative review. The Eleventh Circuit has held that: [T]he mere delegation of authority to a subordinate to exercise discretion is not sufficient to give the subordinate policy-making authority. Rather, the delegation must be such that the subordinate’s discretionary decisions are not constrained by official policies and are not subject to review. Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)). See also, Scala v. City of Winter Park, 116 F.3d 1396, 1399-1400 (11th Cir. 1997); Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir.), reh’g. denied, 942 F.2d 798 (11th Cir. 1991). A private entity may become the functional equivalent of the municipality when it contracts with the municipality to perform functions traditionally within the exclusive prerogative of the State and therefore, may enjoy the protections afforded by Monell and its progeny. Buckner v. Toro, 116 F.3d 450 (11th Cir.) cert. denied, U.S., 118 S.Ct. 608, 139 L.Ed.2d 495 (1997).