More Post-Iqbal Supervisory Liability Cases in the 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.
This past year, I was preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.; West Group), when I came across recent Second, Third, Fourth and Eighth Circuit court decisions dealing with supervisory liability.
Here they are for your reading pleasure.
Second Circuit: Raspardo v. Carlone
A Second Circuit police supervisory liability case involved, among other things, § 1983 sexually hostile work environment claims against a police supervisor for failing to supervise a subordinate who sexually harassed the plaintiffs, former and current female police officers. Ruling for the supervisor on these claims, the Second Circuit, after noting that its pre-Iqbal decisions used a gross negligence standard for supervisory liability, observed that it did not have to decide whether this was still correct because even under that standard the supervisor was not liable. “He neither created a hostile work environment through his own direct actions nor was grossly negligent in his supervision or investigation of subordinate officers who allegedly harassed the plaintiffs on the basis of sex.”
Indeed, as soon as the supervisor became aware of the subordinate’s improper remarks to one of the plaintiffs, he placed him on administrative leave, and then began a broader investigation, including informing the prosecutor’s office when he learned of the subordinate’s sexual misconduct involving another plaintiff. The supervisor subsequently recommended the subordinate’s termination. Thus, the supervisor did not violate the plaintiffs’ constitutional rights either directly or in his supervisory capacity. Raspardo v. Carlone, 770 F.3d 97 (2nd Cir. 2014).
Third Circuit: Barkes v. First Correctional Medical, Inc.
In a Third Circuit case involving a prison suicide, the court addressed whether and to what extent Iqbal affected the circuit’s precedent on supervisory liability in an Eighth Amendment setting. It noted that most courts had gravitated to the “center” such that the state of mind necessary for supervisory liability varies just as does the state of mind necessary for the underlying constitutional violation. The Third Circuit went on to determine that this was its position as well, at least in this case. Thus, in an Eighth Amendment setting, the state of mind necessary for supervisory liability is subjective deliberate indifference, just as it is for the Eighth Amendment violation itself. This was consistent with the circuit precedent in Eighth Amendment cases. Sample v. Diecks, 885 F.2d 1099 (3rd Cir. 1989).
However, the Third Circuit left open the supervisory liability question with regard to different constitutional violations. Barkes v. First Correctional Medical, Inc., 766 F.3d 307 (3rd Cir. 2014), cert granted sub nom Taylor v. Barkes and judgment reversed on qualified immunity grounds, 135 S. Ct. 2042 (2015)(per curiam).
Judge Hardiman dissented in the Third Circuit, arguing that after Iqbal more was now required for supervisory liability: personal involvement and identifying a specific supervisory practice or procedure. Neither was shown here by the plaintiffs. He also argued that the defendants were entitled to qualified immunity, as the Supreme Court per curiam ultimately ruled in this case.
Fourth Circuit: Wilkins v. Montgomery
In a decision involving a § 1983 supervisory liability claim against an assistant director at a state mental hospital that was brought by a mother whose son was murdered by another patient, the Fourth Circuit, without discussing Iqbal, simply applied the three-part test of Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), and found that there was insufficient evidence of any of the three elements required for supervisory liability. Wilkins v. Montgomery, 751 F.3d 214 (4th Cir. 2014).
Eighth Circuit: Jackson v. Nixon
In Jackson v. Nixon, 747 F.3d 537 (8th Cir. 2014), the Eighth Circuit emphasized the personal involvement requirement where the director of the Missouri Department of Corrections and the warden and the director of substance abuse treatment program in a correctional center were sued under § 1983 for allegedly violating the First Amendment free exercise rights of the plaintiff atheist inmate by requiring him to participate in religious activities as part of his treatment.
As to the director of the department of corrections, state law gave him authority to make prison-wide policy decisions, including those concerning substance abuse treatment programs, which meant that his alleged failure to act constituted the requisite personal involvement.
As to the warden, general supervisory authority was insufficient. The plaintiff had to show the warden’s direct involvement in the formation, implementation or enforcement of the allegedly unconstitutional policy, which he had not yet done.
Finally, as to the director of the substance abuse treatment program, the plaintiff plausibly alleged her personal involvement when he claimed that she did not ameliorate the constitutional violation by allowing him to avoid the religious parts of the program.
Judge Smith dissented, 747 F.3d 537, 546, on the ground that the plaintiff did not allege a violation of his First Amendment free exercise rights in the first place.
Of these four cases, only the Third Circuit in Barkes expressly applied Iqbal‘s holding to the case before it. But even it hedged a bit when it stated that its decision was limited to the Eighth Amendment.
In contrast, the Second Circuit in Raspardo avoided taking a stand on Iqbal in ruling that even under its more lenient pre-Iqbal standard the plaintiff lost on her supervisory liability equal protection claim (which required purposeful discrimination).
The Fourth Circuit in Wilkins did not address Iqbal at all, but still found against the plaintiff.
Finally, the Eighth Circuit in Jackson ruled in a manner consistent with Iqbal (all the while emphasizing personal involvement) because several of the defendants apparently acted with the requisite purpose for a Free Exercise Clause violation.