Post-Iqbal Supervisory Liability in the Third and Tenth Circuits
My very first post, on August 19, 2009, dealt with the implications for supervisory liability of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This was followed by my post on October 16, 2009, setting out my view that Iqbal got it right on supervisory liability. Readers should consult these posts for relevant background.
(A caveat: these are 2010 decisions; since this area is so dynamic, there may be more recent decisions in these two circuits)
The Third Circuit: Santiago v. Warminster Township
In Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), the plaintiff sued three senior police officers, alleging that they planned or acquiesced in the use of excessive force against her by police officers during a raid on her home (her daughter and various grandchildren were present in her home) conducted in order to apprehend her grandson, thereby causing her to suffer a heart attack. Applying Iqbal, the Third Circuit found that the plaintiff had failed to plead adequate facts to state plausible claims for supervisory liability against the defendants.
According to the Third Circuit, there were three steps that a court must take after Iqbal: (1) note the elements required to state a cause of action; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) assume the veracity of well-pleaded allegations and then determine whether they plausibly give rise to an entitlement to relief.
In the case before it, the Third Circuit commented that it did not have to decide whether Iqbal changed its prior supervisory liability approach because, even under its prior approach–did the supervisor either direct others to violate a plaintiff’s constitutional rights or know of unconstitutional conduct and acquiesce in it?–the plaintiff did not state a plausible claim for relief.
As to two of the senior police officers accused of directing other police officers to violate plaintiff’s constitutional rights, it was not enough to say that they “specifically sought” to have happen what allegedly happened: this was “fundamentally conclusory” and was analogous to the allegations against the defendants in Iqbal that were rejected by the Supreme Court. Similarly, as to the third senior police officer, it was not enough to say that he “permitted the use of excessive force,” a conclusory allegation that he acquiesced in his subordinates’ constitutional violations.
“Plausibility” Applied in Santiago
The Third Circuit then went on to consider the plausibility of plaintiff’s supervisory liability claims “in light of the non-conclusory factual allegations in the complaint.” As to the senior police officers who allegedly directed their subordinates to violate the plaintiff’s constitutional rights, the fact that they planned the operation, together with the fact that excessive force resulted, did not mean that their plan plausibly called for excessive force: there was no basis in the complaint for concluding that excessive force was used on anyone but the plaintiff.
“Where, as here, an operation results in the use of allegedly excessive force against only one of several people, that use of force does not, by itself, give rise to a plausible claim of supervisory liability against those who planned the operation.”
Iqbal required more. And as to the claim against the third senior police officer, the plaintiff did not allege that he knew of the allegedly excessive force used specifically against her.
Finally, the Third Circuit, after commenting on the possible information asymmetry as between plaintiffs and defendants, concluded: “The Supreme Court has struck the balance, however, and we abide by it.”
The Tenth Circuit: Dodds v. Richardson
Dodds v. Richardson, 614 F. 3d 1185 (10th Cir. 2010), is an important post-Iqbal supervisory liability case in which the Tenth Circuit engaged at length with supervisory liability. In Dodds, the court affirmed the district court’s denial of qualified immunity to a county sheriff accused of depriving the plaintiff of his protected liberty interest in posting bail.
The plaintiff had been arrested pursuant to a felony arrest warrant and placed in the county jail and not allowed bail for several days because he was told that he would have to be arraigned first. But even after the arraignment, he was held for several more days because bail was reset from $5,000 to $10,000, and he did not post bail. Later, he was released on his own recognizance, and the charges against him under the arrest warrant were dismissed. He thereafter sued the county sheriff, alleging that under Oklahoma law the county sheriff was responsible for county jail and had a duty to allow an arrestee such as the plaintiff to post bond.
Specifically, the plaintiff alleged that “by acquiescing in the operation of the [county court] clerk’s non-binding policies at the jail, [the county sheriff] breached the duties imposed by Oklahoma law to accept bail and to maintain the jail himself, and deprived Plaintiff of his liberty interest in posting the preset bail….” Significantly, defense counsel conceded at oral argument the unconstitutionality of the policies that had kept plaintiff from posting bail.
The Tenth Circuit discussed supervisory liability extensively, including citing the author’s Treatise. The Tenth Circuit first noted that in its circuit, the pre-Iqbal rule was that a plaintiff must establish “a deliberate, intentional act by the supervisor to violate constitutional rights,” which meant: personal involvement, sufficient causal connection and culpable state of mind. “Proof of a supervisor’s personal direction or knowledge of and acquiescence in a constitutional violation often sufficed to meet the personal involvement, causal connection and deliberate indifference prongs of the affirmative link requirement for § 1983 supervisory liability.”
Next, the Tenth Circuit addressed the impact of Iqbal and the dissenting opinion of four of the Iqbal justices.
“[W]e conclude the following basis of § 1983 liability survived [Iqbal] and ultimately resolves this case: § 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which [causes the plaintiff’s constitutional deprivation].”
It also commented that the Supreme Court in Iqbal did not purport to overrule its existing precedents on causation and personal involvement.
Supervisory Liability Possible in Dodds
Finally, the requisites of supervisory liability were present in this case. The defendant admitted to the existence and operation of the unconstitutional jail policies and that they were the reason that plaintiff was detained even though a judge had already approved bail of $5,000. Moreover, the defendant was responsible under Oklahoma law with running the county jail and accepting bail from all arrestees not charged with death penalty crimes. Further, it was under his watch that these policies continued to operate. “Defendant may have played more than a passive role in the alleged constitutional violation—he may have deliberately enforced or actively maintained the policies in question at the jail.”
The Tenth Circuit concluded its discussion by stating that the facts, interpreted favorably to the plaintiff, also established, as apparently required by Iqbal, the requisite state of mind for the substantive due process violation in this over-detention case: “We assume, without deciding, deliberate indifference constitutes the required state of mind.” And since these issues were all raised in connection with qualified immunity, the Tenth Circuit determined that if the plaintiff could prove the facts alleged, the defendant would have violated clearly settled law.
Concurrence in Dodds
Judge Tymkovich concurred in Dodds, 614 F.3d at 1208, and emphasized the lack of clarity in the law of supervisory liability, the possible impact of Iqbal and the importance of causation. He also cited the author’s 2010 Lewis & Clark law review article, the subject of my post on October 16, 2009.
1. The Third Circuit in Santiago unfortunately finessed the important supervisory liability issue by using its pre-Iqbal standard and finding that the plaintiff’s allegations did not satisfy Iqbal‘s generally applicable plausibility requirement. In so doing , it applied plausibility in a very strict manner against the plaintiff.
2. The Tenth Circuit in Dodds did a thoughtful job in explicating the supervisory liability issue. It also confronted head on the relevance of the requisite state of mind for the constitutional violation alleged against the county sheriff as supervisor.