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More Post-Iqbal Supervisory Liability Cases in the Circuits

Background

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.

In addition, I blogged on July 20, 2011, and on July 11, 2014, about post-Iqbal supervisory liability decisions in the circuits.

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.

Comments

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.

 

 

Written by snahmod

July 23, 2015 at 4:01 pm

Recent Post-Iqbal Supervisory Liability Decisions in the Circuits

I blogged on September 7, 2012, and on July 29, 2013, about post-Iqbal pleading decisions in the circuits.

This past year, I was, as usual, preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014; West Group), when I came across three additional recent circuit court decisions applying Iqbal to supervisory liability.

The Second Circuit decision addresses personal involvement, the Ninth Circuit decision deals with causation and the Eleventh Circuit decision discusses deliberate indifference.

Second Circuit

The Second Circuit dealt with a post-Iqbal case involving a pretrial detainee’s pro se individual capacity claim against a warden in connection with allegations of denial of visitation rights, telephone usage, access to a law library and deprivation of temperature control, ventilation and various amenities. The district court dismissed on the ground that the complaint contained no allegations from which the warden’s personal involvement could be determined and further ruled against the plaintiff’s request for leave to amend. Reversing, the Second Circuit held that the plaintiff should at least have been allowed to amend his complaint in order to allege plausibly that the warden had been informed of the alleged denials and deprivations by a letter that the plaintiff had previously sent to him. The Second Circuit observed that in response to the defendant’s motion to dismiss, the plaintiff referred to such a letter informing the warden of the conditions of his confinement. If such a letter had been sent, a court could infer that the warden was in fact aware of the alleged conditions of which the plaintiff complained, thus constituting the requisite personal involvement. Grullon v. City of New Haven, 720 F.3d 133 (2d Cir. 2013)(quoting Hansen v. Black, 885 F.3d 642, 645-46 (9th Cir. 1989).

Ninth Circuit

The Ninth Circuit, in a post-Iqbal supervisory liability case involving allegations of deliberate indifference against a prison medical director and others in connection with the plaintiff prisoner’s medical care, said the following: “[Under § 1983 a] supervisor may be liable only if (1) he or she is personally involved in the constitutional deprivation, or (2) there is a ‘sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’” Here, there was no evidence that the defendant’s policy of changing dosages of Lithium from three to two, without increasing the total amount prescribed, could have caused plaintiff’s Lithium toxicity. Crowley v. Bannister, 764 F.3d 967 (9th Cir. 2013).

Eleventh Circuit

In a post-Iqbal case involving a pretrial detainee’s allegations against various supervisory prison officials that they did not protect her from a corrections officer who sexually assaulted her, the Eleventh Circuit reversed the district court and held that she did not plausibly allege the requisite deliberate indifference. It was not enough that she repeatedly alleged deliberate indifference and that the defendants knew or should have known of the risk to her. There were only a few properly pleaded facts—that the corrections officer verbally harassed the plaintiff and told her there was nothing she could do, that he sexually assaulted her, that he had previously sexually assaulted another pretrial detainee and that he had previously had sexual relations with a third detainee. These were insufficient to state a plausible claim against the defendants that each was subjectively aware of the risk and knowingly disregarded it. Indeed, and to the contrary, the plaintiff’s allegations suggested that the jail’s policy was to promptly investigate claims of sexual harassment. Franklin v. Curry, 738 F.3d 1246 (11th Cir. 2013).

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Written by snahmod

July 11, 2014 at 6:02 pm

Post-Iqbal Supervisory Liability in the Third and Tenth Circuits

Background

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.

Here are two important (and somewhat lengthy) 2010 supervisory liability cases from the Third and Tenth Circuits that I want to share with you.

(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. Read the rest of this entry »

Written by snahmod

July 20, 2011 at 10:49 am

My Position on Supervisory Liability after Iqbal

Coming Full Circle

My very first post–on August 19–involved the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and its implications for supervisory liability under section 1983. I have since worked through the relevant issues and conclude that the Court got supervisory liability right, even though its reasoning was seriously deficient.

What follows is an abstract of an article setting out my position that will be published in March 2010 in an Iqbal symposium issue of Lewis & Clark Law Review. The entire article is currently available for downloading on the Legal Research Network of SSRN and also on this link: http://works.bepress.com/sheldon_nahmod/

Read the rest of this entry »

Written by snahmod

October 16, 2009 at 1:06 pm

Iqbal and Section 1983 Supervisory Liability

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The Decision

The Supreme Court’s 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (5-4 decision, Kennedy writing for the Court), has recently generated a great deal of justified attention in the federal courts and the profession.

However, most of that attention has been directed to the federal pleading aspects of Iqbal. Much less noticed has been the Court’s declaration, without briefing and argument, that supervisory liability under Bivens and section 1983 requires that the supervisor must possess the same state of mind that is required for the underlying constitutional violation by subordinates. In Iqbal itself, this meant that the defendants, Ashcroft and Mueller, accused of violating the plaintiff’s equal protection rights by implementing policies that led to the plaintiff’s harsh treatment by subordinates during confinement because of his race, religion and national origin, would not be liable unless the plaintiff alleged and could prove that Ashcroft and Mueller themselves acted with purposeful discrimination. Defendants’ actual knowledge of a constitutional violation by their subordinates, coupled with their deliberate indifference, was therefore not sufficient to state a claim under Bivens. Significantly, this changed the supervisory liability law in the circuits which had for the most part adopted the deliberate indifference standard. (Four justices dissented, led by Justice Souter in a lengthy dissenting opinion). Read the rest of this entry »

Written by snahmod

August 19, 2009 at 12:00 pm

Shotgun Pleadings and Section 1983: The Eleventh Circuit Speaks Out

Background

Many of us know that the Supreme Court’s decision in Ashcroft v. Iqbal, 566 U.S.  662 (2009), was a game-changer in announcing a heightened pleading requirement of “plausibility” in federal courts.

[It was also a game-changer in connection with supervisory liability about which I’ve written and previously posted].

The Eleventh Circuit’s Weiland Shotgun Pleadings Decision

In Weiland v. Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015), a case dealing with a plaintiff’s allegations of excessive force and malicious prosecution against a sheriff’s office and deputies, the Eleventh Circuit, provided a taxonomy of shotgun pleadings both pre- and post-Iqbal. In so doing, it delivered a warning to section 1983 attorneys of its highly negative view of such pleadings.

A Taxonomy of Shotgun Pleadings

The discussion began with the Eleventh Circuit’s statement that it had examined more than sixty of its published opinions (since 1985) dealing with shotgun pleadings.

Then, and for your reading pleasure, here is what the Eleventh Circuit said (my emphasis added):

Though the groupings cannot be too finely drawn, we have identified four rough types or categories of shotgun pleadings. The most common type—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint. The next most common type … is a complaint that does not commit the mortal sin of re-alleging all preceding counts but is guilty of the venal sin of being replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action. The third type of shotgun pleading is one that commits the sin of not separating into a different count each cause of action or claim for relief. Fourth, and finally, there is the relatively rare sin of asserting multiple claims against multiple defendants without specifying which defendant(s) are responsible for which acts or omissions, or which of the defendant(s) the claim is brought against. The unifying characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one way or another, to give the defendants adequate notice of the claims against them and the ground upon which each claim rests.

The Result in Weiland

Specifically, the plaintiff in Weiland alleged that the sheriff’s office maintained two unconstitutional policies: (1) a policy of not training its deputies in the appropriate use of force when seizing mentally ill persons for transportation to mental health facilities and (2) a policy of using internal affairs investigations to cover up the use of excessive force against the mentally ill.

Affirming the dismissal of both for failure to state a plausible claim, the Eleventh Circuit said that the first was impermissibly based on a single incident involving two deputies: there was no allegation that the need for specialized training for dealing with mentally ill persons was “so obvious” that the failure to provide it was deliberate indifference. As to the second, the complaint did not plausibly allege that the sheriff’s office had such a cover up policy: the plaintiff alleged facts dealing only with this particular internal affairs investigation.

Comment

When I consult for plaintiffs’ lawyers in section 1983 cases, I invariably breathe a sigh of relief when they inform me that they have not yet filed a lawsuit. It is often difficult to emerge unscathed from badly drafted complaints.

In contrast, when I consult for defendants’ lawyers in section 1983 cases and I see plaintiffs’ shotgun pleadings, I am pleased, despite the fact that such pleadings initially make it harder for the defense side. Why is that? Because shotgun pleadings make a very bad impression on, and make more work for, judges and their law clerks. In addition, they signal to everyone that the lawyers who drafted the pleadings may not be all that competent.

 

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Written by snahmod

June 7, 2016 at 2:47 pm

All My Section 1983 Posts to 10-12-15

TO MY READERS

It has been a while since I reorganized all of my posts (including videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 150 posts.

I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility. Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.

I encourage you to search within each post for case names, topics and the like, that you are interested in.

I thank all of you for your ongoing support of this blog. I also invite you to follow me on Twitter @NahmodLaw.

Sheldon Nahmod (snahmod@kentlaw.edu).

———————————————————————————————

What follows is the first of four posts (three are rather long) comprising all of my posts (with links) divided into the following four parts and four corresponding posts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION

PART I: SECTION 1983

My New Video on Section 1983 Basics

All My Videos: Constitutional Law, Section 1983 and SCOTUS

Section 1983 Supreme Court Decisions–2009: A Video Presentation

A Section 1983 Podcast: Damages and Procedural Defenses

From Monroe to Connick: Video

From Monroe to Connick: Podcast

Article: The Long and Winding Road from Monroe to Connick

“Section 1983 Is Born”: A Working Paper

My New Article: The Birth of Section 1983 in the Supreme Court

A Section 1983 Primer (1): History, Purposes and Scope

A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape

A Section 1983 Primer (3): Constitutional States of Mind

A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule

A Section 1983 Primer (5): Statutes of Limitations

A Section 1983 Primer (6): Claim and Issue Preclusion

A Section 1983 Primer (7): Introduction to Absolute Individual Immunity

A Section 1983 Primer (8): Absolute Legislative Immunity

A Section 1983 Primer (9): Absolute Judicial Immunity Read the rest of this entry »

Written by snahmod

October 12, 2015 at 2:48 pm

Come to My Section 1983 Conference April 16-17, 2015

I invite you to join me in Chicago at the 32nd annual Section 1983 Civil Rights Litigation Conference on Thursday and Friday, April 16-17, 2015. This two-day seminar is designed for municipal and state attorneys, plaintiffs’ attorneys and criminal defense attorneys. It is always up to date and is useful for both attorneys new to the subject and experienced attorneys.

Whatever your level of expertise, I believe you will benefit from this program. It is a very good value and features some of the very best academics and litigators around.

If you have any questions about the program itself, please feel free to email me at snahmod@kentlaw.edu.

What follows is relevant information provided by Chicago-Kent’s CLE department.

————————-

Program Speakers

Sheldon H. Nahmod, Distinguished Professor of Law, IIT Chicago-Kent College of Law
Gerald M. Birnberg, Williams, Birnberg, & Andersen LLP
Karen M. Blum, Associate Dean & Professor of Law, Suffolk University Law School
Erwin Chemerinsky, Founding Dean & Distinguished Professor of Law, University of California, Irvine School of Law
Laura Schauer Ives, Kennedy, Kennedy, & Ives LLC 
Rosalie B. Levinson, Phyllis and Richard Duesenberg Professor of Law, Valparaiso University School of Law
John B. Murphey, Rosenthal, Murphey, Coblentz, & Donahue

Program Highlights

  • Elements of the §1983 Claim
  • Individual Immunities
  • Equal Protection: Hot Topics
  • Practical Considerations in §1983 Litigation
  • SCOTUS 2013 Term, plus important forthcoming decisions in the Supreme Court’s 2014 Term
  • Municipal and Supervisory Liability
  • Attorney’s Fees and Related Ethical Issues
  • Immigration-Related Issues in Litigating Civil Rights Claims
  • Procedural Defenses: The Basics

Key Event Information

Date: April 16-17, 2015

Registration, Breakfast: 8:00 am (both days)

Program: 8:50 am–5 pm Thursday; 9:00 am–3:30 pm Friday
Networking Reception: 5:00 pm Thursday

Location: 

IIT Chicago-Kent College of Law
565 W. Adams Street
Chicago, IL 60661

IL MCLE credit:
11.25 hrs, including 1.5 ethics pending approval.

Other state MCLE credit:

Want to know if MCLE credit is available for your state?  Call us at 312.906.5090.

For a complete conference brochure: click here

To learn more or to register now, go to cle.kentlaw.edu or call 312.906-5090.

Written by snahmod

March 23, 2015 at 9:25 am

All My Posts Through 4-10-13

It has been a while since I reorganized all of my posts (including several videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 100 posts.

I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility.

Instead, they are intended to serve the continuing educational needs of  lawyers, law students, academics and the public at large.

I thank all of you for your growing support of this blog.

Sheldon Nahmod (snahmod@kentlaw.edu)

 

What follows is a list comprising all of my posts (with links) divided into the following four parts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION

PART I: SECTION 1983

Section 1983 Supreme Court Decisions–2009: A Video Presentation

A Section 1983 Podcast: Damages and Procedural Defenses

From Monroe to Connick: Video

From Monroe to Connick: Podcast

Article: The Long and Winding Road from Monroe to Connick

“Section 1983 Is Born”: A Working Paper

A Section 1983 Primer (1): History, Purposes and Scope

A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape

A Section 1983 Primer (3): Constitutional States of Mind

A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule

A Section 1983 Primer (5): Statutes of Limitations

A Section 1983 Primer (6): Claim and Issue Preclusion

A Section 1983 Primer (7): Introduction to Absolute Individual Immunity

A Section 1983 Primer (8): Absolute Legislative Immunity

A Section 1983 Primer (9): Absolute Judicial Immunity

Read the rest of this entry »

Written by snahmod

April 10, 2013 at 2:30 pm

Posted in Uncategorized

All My Posts Through 11-11-11

Since nahmodlaw.com began in August 2009, I have published almost 70 posts, including videos and podcasts, on what I consider to be topics of interest and importance going beyond what might be considered “hot” at any particular time.

It is now time to create an updated and inclusive current list of all of my linked posts by category for ease of reference and use.  (I did it once before well over a year ago).

This update will, I hope, be useful not only to my regular readers but also, and especially, to those who have only recently discovered this blog, whether through oyez.org or otherwise.

(Note that it is always possible to use the “search function” to look for particular cases or topics among every one of my posts, including those subsequent to this one).

What follows is a list comprising all of my posts divided into the following categories:

SECTION 1983;  CONSTITUTIONAL LAW;  FIRST AMENDMENT;  EDUCATION Read the rest of this entry »

Written by snahmod

November 11, 2011 at 12:48 pm

Posted in Uncategorized