Who Will Supervise the Supervisors? Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post-Iqbal/Connick World

Harvard Environmental Law Review

Volumn , Issue 47, 2012, Pages 273-312

  Levinson, Rosalie Berger ^a  

^a VALPARAISO UNIVERSITY   (United States)

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EID: 85194069035     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (217)

1. Section 1983 reads as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Con gress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. 42 U.S.C. § 1983 (2006).
2. See infra Part II.A.
3. See, e.g., Dalrymple v. Reno, 334 F.3d 991, 995 (11th Cir. 2003). There were variations on this standard, but all versions of this test permitted some supervisory liability under § 1983. See infra notes 61-63, 95 and accompanying text. As explained below, the majority in Ash- croft v. Iqbal, 556 U.S. 662 (2009), clearly ratcheted up the existing tests for supervisory liability.
4. Monroe v. Pape, 365 U.S. 167, 180 (1961), overruled in part by Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978).
5. 556 U.S. 662 (2009).
6. Id. at 677.
7. Id. at 676.
8. Id. at 698 (Souter, J., dissenting).
9. Id. at 668.
10. See infra notes 26-27 (explaining how implied causes of action are disfavored).
11. See infra notes 101, 115 and accompanying text. 12 See infra note 104 and accompanying text. 13 See infra Part II.B.
12. 131 S. Ct. 1350 (2011).
13. Id. at 1356. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Court held that due process requires the prosecution to turn over exculpatory evidence that is material to the accused's guilt or punishment.
14. Connick, 131 S. Ct. at 1369 (Scalia, J., concurring).
15. These remarks were delivered at the Equal Justice Initiative Dinner honoring retired Justice Stevens on May 2, 2011. He urged the Court to correct its misinterpretation of § 1983 and to adopt the common law doctrine of respondeat superior, which reflects "the intent of the Congress that enacted § 1983." See Eileen Malloy, Civil Rights-Actionable Wrongs: DA's Office Shouldn't Be Let Off Hook for Prosecutor's Misconduct, Stevens Says, 79 U.S.L.W. 2500, May 10, 2011.
16. 131 S. Ct. at 1361; see also infra Part IV.C.
17. See City of Canton v. Harris, 489 U.S. 378, 388 (1989).
18. Owen v. City of Independence, 445 U.S. 622, 651 (1980); Mitchum v. Foster, 407 U.S. 225, 242 (1972).
19. See infra notes 125-28 and accompanying text. 22 Ivan E. Bodensteiner, Congress Needs to Repair the Court's Damage to § 1983, 16 TEX. J. C.L. & C.R. 29, 51 (2010).
20. Id.
21. The second prong of the proposed test-that the underlying constitutional right be clearly established-recognizes that supervisors, unlike government entities, enjoy absolute or qualified immunity from damages. See infra notes 201-16 and accompanying text.
22. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 392-95 (1971).
23. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) ("Because implied causes of action are disfavored, the Court has been reluctant to extend Bivens liability 'to any new context or new category of defendants.'" (citations omitted)); Wilkie v. Robbins, 551 U.S. 537, 568 (2007) (Thomas, J., concurring) (asserting that Bivens is outdated); Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring) ("Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action-decreeing them to be 'implied' by the mere existence of a statutory or constitutional prohibition.").
24. See Erwin Chemerinsky, Closing the Courthouse Doors: Transcript of the 2010 Honorable James R. Browning Distinguished Lecture in Law, 71 MONT. L. REV. 285, 290 (2010) (describing the demise of Bivens in recent Supreme Court decisions); See generally Laurence H. Tribe, Death by a Thousand Cuts: Constitutional Wrongs Without Remedies After Wilkie v. Robbins, 2007 CATO SUP. CT. REV. 23 (2007) (lamenting that the Bivens remedy has been gradually undermined and endangered).
25. Iqbal, 556 U.S. at 682-83.
26. See infra Part II.B.
27. 423 U.S. 362 (1976).
28. Id. at 366.
29. Id. at 371.
30. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 n.58 (1978) (emphasis added).
31. Even before Monell, appellate courts readily adopted this interpretation of supervisory liability. See, e.g., Duchesne v. Sugarman, 566 F.2d 817, 832 (2d Cir. 1977) ("Where conduct of the supervisory authority is directly related to the denial of a constitutional right, it is not to be distinguished as a matter of causation, upon whether it was action or inaction."); Sims v. Adams, 537 F.2d 829, 832 (5th Cir. 1976) (holding that Rizzo did not affect pre-existing principles imposing liability on supervisory defendants, with no notice of subordinates' past culpable conduct, who failed to prevent recurrence in violation of a state statutory duty).
32. See, e.g., Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (finding that the district court erred in dismissing plaintiff's supervisory claim against the county sheriff, who sought to recover damages for injuries sustained when he was attacked by a deputy, while other deputies stood by and watched); Keating v. City of Miami, 598 F.3d 753, 762-65 (11th Cir. 2010) (holding that supervisory liability may be imposed on a police chief who approved orders permitting police to advance while beating unarmed demonstrators and discharging projectiles and tear gas, on the deputy chief who made the decision to utilize "herding techniques" to corral the demonstrators, and on the captain who directed the police lines to begin discharging weapons at unarmed demonstrators; and that failing to stop the unlawful actions of their subordinates, even though they were less than one hundred feet away from the skirmish line with an unrestricted view of the constitutional wrongdoing, established the causal connection required to link supervisors to their subordinates' constitutional rights violations); Sanchez v. Pereira- Castillo, 590 F.3d 31, 49-51 (1st Cir. 2009) (holding that allegations against two defendants who were directly involved in the decision to transport an arrestee to the hospital for a rectal examination and a procedure to remove a foreign object were sufficient to impose liability where one defendant affirmatively "set[ ] in motion acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury," and another was a primary violator because he insisted at the hospital that the doctors perform this medical procedure).
33. See, e.g., Krout v. Goemmer, 583 F.3d 557, 565-66 (8th Cir. 2009) (holding that there was sufficient evidence for a reasonable jury to conclude that three officers had a constitutional obligation to intervene where they observed other officers using excessive force and they had an adequate opportunity to intervene and stop it); Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (explaining that an officer who fails to intervene to prevent a fellow officer's excessive use of force may be held liable under § 1983); Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (stating that an officer who fails to intervene to stop the use of excessive force may be held liable for a violation of the Fourth Amendment even though he did not strike the plaintiff); cf. Bletz v. Gribble, 641 F.3d 743, 754 (6th Cir. 2011) (acknowledging that a police officer may be responsible for another officer's use of excessive force even without active participation if the officer supervised the subordinate who used excessive force or "owed the victim a duty of protection against the use of excessive force," but finding that the officer lacked sufficient time to intervene and prevent the use of excessive force, and thus should have been granted summary judgment).
34. Torres-Rivera v. O'Neill-Cancel, 406 F.3d 43, 50-52 (1st Cir. 2005) (asserting that the "objectively reasonable" standard of the Fourth Amendment, rather than the "shock the conscience" standard applicable to substantive due process claims, governs a claim that an officer failed to intervene in the excessive use of force).
35. City of St. Louis v. Prapotnik, 485 U.S. 112, 127 (1988).
36. See Dodds v. Richardson, 614 F.3d 1185, 1196 n.5 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011).
37. 631 F.3d 843 (7th Cir. 2011).
38. Id. at 847.
39. Id. at 857-58; see also Vance v. Rumsfeld, 653 F.3d 591, 599-605 (7th Cir. 2011) (holding that the plaintiff's pleadings alleging that Secretary of Defense Rumsfeld not only failed to stop the torture of detainees by subordinates, but was also personally responsible for authorizing interrogation techniques that amount to torture, were sufficient to survive summary judgment); Dodds, 614 F.3d at 1199-1205 (reasoning that it suffices that the sheriff admitted there was a policy of not allowing felony arrestees to post lawfully set bail after hours, or until they had seen a judge, and that it was this policy that caused the plaintiff to be detained, even where a county sheriff may not have personally informed a suspect that he could not post the preset bail until he had seen a judge, and the sheriff may not have actually known of his subordinates' enforcement of this policy with regard to the plaintiff); Harper v. Lawrence Cnty., 592 F.3d 1227, 1236 (11th Cir. 2010) (recognizing that supervisory liability may be imposed where there is widespread abuse that puts the responsible supervisor on notice of the need to correct an alleged deprivation of rights and she fails to do so, or where the "supervisor's custom or policy . . . results in deliberate indifference to constitutional rights," or where the supervisor knows "that subordinates would act unlawfully and yet fails to stop them from doing so"; here, the plaintiff sufficiently alleged supervisory liability against the defendants, "who were responsible for the management and administration or oversight of the jail," and who had "customs or policies of improperly screening inmates for alcohol withdrawal, improperly handling inmates addicted to alcohol or drugs, delaying medical treatment and restricting access to outside medical providers in order to save money"); cf. Thomas v. Cook Cnty. Sheriff's Dep't, 604 F.3d 293, 306-07 (7th Cir. 2010) (holding that a sheriff could not be held liable for a pretrial detainee's death from pneumococcal meningitis based on his alleged policy of understaffing the county jail, as there was no causal link between this policy and the pretrial detainee's death; although individual deputies employed as correctional officers were shown to have known of and ignored the detainee's medical needs, there was no evidence that this inaction was due to understaffing; government policies must be the moving force behind the constitutional violation in order to impose liability).
40. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).
41. But see Dodds, 614 F.3d at 1195 ("A plaintiff could establish the defendant-supervisor's personal involvement by demonstrating his 'personal participation, his exercise of control or direction, or his failure to supervise.' " (citations omitted)).
42. See infra notes 125-28 and accompanying text. 46 See infra notes 53-55 and accompanying text. 47 See, e.g., Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 411 (1997) (holding that liability may be imposed for a failure to screen applicants only where the specific constitutional wrong was "the plainly obvious consequence of the decision to hire").
43. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
44. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 565 (4th ed. 2011) (referencing the "deeply entrenched belief that the Constitution is a charter of negative liberties-rights that restrain the government-and not a creator of affirmative rights to government services").
45. Cf. Castle Rock v. Gonzales, 545 U.S. 748 (2005) (holding that a town and its police department could not be sued under 42 U.S.C. § 1983 for failing to enforce a restraining order, which had led to the murder of a woman's three children by her estranged husband); DeShaney v. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989) (holding that there is no affirmative duty under the Due Process Clause for the government to protect people from private wrongdoing); see also Rosalie Berger Levinson, Reining-In Abuses of Executive Power Through Substantive Due Process, 60 FLA. L. REV. 519, 536-41 (2008) (opining that the expansion by the appellate courts of the DeShaney rule insulates official misconduct by refusing to find a duty of care even in the context of residential public schools and other "voluntary" state programs).
46. See supra notes 32-34 and accompanying text. 52 489 U.S. 378 (1989).
47. Id. at 387.
48. Id. at 388.
49. Id. at 389 (citing Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).
50. Id. at 388 n.8.
51. Id. at 389-90.
52. Id. at 390; see also Price v. Sery, 513 F.3d 962, 973 (9th Cir. 2008) (stating that constructive notice satisfies the Canton deliberate indifference standard if the risk of constitutional violations caused by a failure to train is obvious).
53. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 407 (1997) (acknowledging that "[a] showing of simple or even heightened negligence will not suffice"). The appellate courts have similarly rejected negligence in the context of supervisory liability claims. See, e.g., Zarnow v. City of Wichita Falls, 614 F.3d 161, 169-70 (5th Cir. 2010) (holding that a supervisor may be liable for unconstitutional searches conducted by his subordinates only if he demonstrated deliberate indifference to plaintiff's constitutionally protected rights, which requires more than negligent oversight, but less than purposeful harm); Doe v. City of Roseville, 296 F.3d 431, 441 (6th Cir. 2002) (discussing standards of supervisory liability among the circuits and acknowledging that "[n]egligence is not enough to impose § 1983 liability on a supervisor").
54. See, e.g., Jones v. Horne, 634 F.3d 588, 601-02 (D.C. Cir. 2011) (explaining that, although proving causation "'is an objective standard, it involves more than mere negligence. It does not require [that the government] take reasonable care to discover and prevent constitutional violations' "; however, when "'faced with actual or constructive knowledge that its agents will probably violate constitutional rights, [policymakers] may not adopt a policy of inaction.'" (quoting Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004))).
55. See, e.g., Sanchez v. Pereira-Castillo, 590 F.3d 31, 48-49 (1st Cir. 2009) (recognizing that because supervisory officials may be held liable based on their own acts or omissions, plaintiffs could assert a claim against administrative defendants "premised on the theory that those defendants failed adequately to train the correctional defendants who were implicated in the surgery itself"); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (applying the pre-Iqbal standard that supervisory liability may be imposed if there is an affirmative link "between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise"); Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) (holding that, although the plaintiff's failure to allege the supervisors' personal involvement in the alleged Eighth Amendment violations supported the district court's dismissal of claims, the plaintiff should be given leave to remedy the pleadings if there is evidence that the supervisors were made aware of constitutional violations and "acted or failed to act in a way that caused any constitutional violations").
56. City of Canton, 489 U.S. at 390; see also Harper v. Lawrence Cnty., 592 F.3d 1227, 1236-37 (11th Cir. 2010) (explaining that causality may be established where "a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so" or where the supervisor "knew that the subordinates would act unlawfully and failed to stop them from doing so" (citing Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir. 2003))).
57. The Supreme Court in Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), clearly rejected respondeat superior as contrary to the "causation" language in § 1983. See also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). But see Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 430-37 (1997) (Breyer, J., dissenting) (arguing that Monell should be re-examined and that the Court should adopt a vicarious liability standard to better serve the goals of § 1983).
58. Petition for Writ of Certiorari, Iqbal, 556 U.S. 662 (No. 07-1015); see also infra note 97 and accompanying text.
59. 511 U.S. 825, 837-38 (1994).
60. Id. at 834.
61. Id. While insisting on a subjective deliberate indifference test in Farmer, Justice Souter's majority opinion clarified that sometimes actual knowledge can be established through circumstantial evidence: "Whether a prison official had the requisite knowledge of a substantial risk is a question of fact . . . and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. at 842. However, most appellate courts require that the defendant subjectively believes there is a high probability that a fact exists or that the defendant takes deliberate actions to avoid learning of that fact, and thus the standard is significantly higher than Canton's objective deliberate indifference test. See Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317-18 (11th Cir. 2010) (holding that pretrial detainee must show that the prison guard had "subjective knowledge of a risk of serious harm, disregard[ed] that risk, and display[ed] conduct that goes beyond gross negligence"); Schoelch v. Mitchell, 625 F.3d 1041, 1046-48 (8th Cir. 2010) (reasoning that to show an unconstitutional failure to protect an inmate from battery by another inmate, the pretrial detainee must show that defendant was "'aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and that he must also draw the inference'" (citing Farmer, 511 U.S. at 837)); Simmons v. Navajo Cnty., 609 F.3d 1011, 1017-20 (9th Cir. 2010) (reasoning that the plaintiff must have evidence that officials were aware of facts from which the inference could be drawn that there was a substantial risk that the detainee would commit suicide and that this inference was actually drawn); Minix v. Canarecci, 597 F.3d 824, 831-34 (7th Cir. 2010) (holding that a detainee must both show that he suffered an objectively serious harm, presenting a substantial risk to his safety, and that the defendants were deliberately indifferent to that risk, requiring both that the defendants subjectively knew the prisoner was at substantial risk of committing suicide and that they intentionally disregarded that risk).
62. Farmer, 511 U.S. at 843 n.8.
63. Caiozzo v. Koreman, 581 F.3d 63, 70-72 n.4 (2d Cir. 2009) (adopting the position of the First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, the Court ruled that the Farmer test (which governs convicted prisoners' claims of deliberate indifference to serious medical needs or other threats to the health and safety of those in custody) applies equally to pretrial detainees and, thus, even where there is evidence that prison officials should have been aware that a detainee was in immediate danger of alcohol withdrawal, it was insufficient absent evidence that defendants were actually aware, in a subjective sense, of that danger); see also David C. Gorlin, Evaluating Punishment in Purgatory: The Need to Separate Pretrial Detainees' Conditions-of-Confinement Claims from Inadequate Eighth Amendment Analysis, 108 MICH. L. REV. 417, 425-28 (2009) (discussing how the application of this more stringent test can make a difference in some cases); Rosalie Berger Levinson, Time to Bury the Shocks the Conscience Test, 13 CHAP. L. REV. 307, 329-31 (2010) (opining that most appellate courts have adopted the more stringent Eighth Amendment subjective indifference test in pretrial detainee cases).
64. Compare Tamas v. Dep't of Soc. & Health Servs., 630 F.3d 833, 844-46 (9th Cir. 2010) (finding that the district court erred in holding that liability could be imposed based on evidence that caseworkers were aware of facts that would have led reasonable persons to know or suspect that a father was abusing his child, and reasoning that the standard for deliberate indifference was the same as that which governs prisoner cases, including both subjective and objective components), with Battista v. Clarke, 645 F.3d 449, 452-53 (1st Cir. 2011) (holding that the district court erred in applying the Eighth Amendment Farmer test to a person civilly confined as "sexually dangerous" after serving a prison sentence for rape, instead of the deliberate indifference to medical needs standard the Supreme Court established in Youngberg v. Romeo ex rel. Romeo, 457 U.S. 307 (1982), which was a "more plaintiff-friendly standard" and only required evidence that the defendant failed to exercise a reasonable professional judgment in denying the plaintiff hormone therapy to address his gender identity disorder).
65. Farmer, 511 U.S. at 84; see also Duvall v. Dallas Cnty., 631 F.3d 203, 209-10 (5th Cir. 2011) (acknowledging that the standard of deliberate indifference for the underlying constitutional violation, which requires evidence of subjective deliberate indifference on the part of a particular municipal employee who committed the acts or omissions, is more stringent than the standard necessary to show a municipal liability "custom or policy" where objective deliberate indifference suffices); Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 n.8 (9th Cir. 2002) ("As opposed to the Farmer standard, which does not impose liability unless a person has actual notice of conditions that pose a substantial risk of serious harm, the Canton standard assigns liability even when a municipality has constructive notice that it needs to remedy its omissions in order to avoid violations of constitutional rights."). Arguably, this distinction makes sense because a government entity cannot act with "subjective" deliberate indifference.
66. See infra Part IV.
67. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
68. Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
69. Id. at 667.
70. Id.
71. Id. at 669.
72. Id.
73. Id.
74. Id. at 676-78.
75. Id. at 690 (Souter, J., dissenting).
76. Id. at 677.
77. Id. at 676-77.
78. Id.
79. Id. at 677.
80. Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability After Iqbal, 14 LEWIS & CLARK L. REV. 279, 279 (2010) (arguing that the Court was correct in adopting a "constitutional" approach to supervisory liability whereby plaintiffs must prove that supervisors acted with the same state of mind required to make out the constitutional violation). For further discussion and a critique of this approach, see infra note 132. 87 Iqbal, 556 U.S. at 680 (quoting First Amended Complaint and Jury Demand, Elmaghraby v. Ashcroft, No. 04-CV-1809(JG)(JA) (E.D.N.Y. Sept. 30, 2004), 2004 WL 3756442).
81. Id. at 680-81.
82. Id. at 681 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
83. Id. at 683.
84. See, e.g., Arthur Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 30-31 (2010) (presenting 2009 data from the Federal Judicial Center refuting the Supreme Court's assumption that new pleading rules were necessary to address excessive discovery costs and coerced settlements, describing the "confusion and disarray among judges and lawyers," and lamenting that the subjectivity inherent in a "plausibility" standard leads to "inconsistent rulings on virtually identical complaints"); Alexander A. Reinert, The Cost of Heightened Pleading, 86 IND. L.J. 119, 120 (2011) (finding no correlation between a complaint's merit and its factual detail); Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. PA. L. REV. 517, 570 (2010) (arguing that plaintiffs in civil rights and employment cases will be more likely to have their claims dismissed and will be deterred from filing in federal courts); Suja A. Thomas, Oddball Iqbal and Twombly and Employment Discrimination, 2011 U. ILL. L. REV. 215, 215 (2011) (arguing, contrary to Professor Epstein, that the Iqbal standard is likely to be procedurally revolutionary in employment cases and marks the effective death of Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 LEWIS & CLARK L. REV. 157 (2010) (arguing that Iqbal cuts off discovery and confers too much discretion on federal judges to subjectively decide what are conclusory allegations; and forecasting that the case will significantly decrease the enforcement and vindication of federal constitutional and civil rights where plaintiffs cannot know or plead essential information with particularity at the outset without the benefit of discovery); Nancy A. Welsh, I Could Have Been a Contender: Summary Jury Trial as a Means to Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation and Early, Consensual Dispute Resolution, 114 PENN ST. L. REV. 1149 (2010) (seeking to reconcile the tension between the notice function normally attributed to Rule 8 and the plausibility rule that serves as a gatekeeper preventing frivolous and expensive discovery); cf. Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473 (2010) (contending that the plausibility standard fits within the traditional insistence that factual inferences be reasonable and that it does not preclude discovery during the pendency of the motion to dismiss); Martin H. Redish & Lee Epstein, Bell Atlantic v. Twombly and the Future of Pleading in the Federal Courts: A Normative and Empirical Analysis (Northwestern Univ. Sch. of Law, Pub. Law & Legal Theory Series, Paper No. 10-16, 2008) (arguing that Iqbal simply returned pleading rules to what the notice pleading standard was always intended to be and that "plausibility" strikes the appropriate balance between the extremes of fact pleading and "lax" pleading).
85. Iqbal, 556 U.S. at 691 (Souter, J., dissenting).
86. Id. at 693.
87. Id. at 676 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant through the official's own individual actions, has violated the Constitution.").
88. Id. at 693-94 (Souter, J., dissenting) (citations omitted); see Dodds v. Richardson, 614 F.3d 1185, 1196 n.5 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (citing pre-Iqbal cases from the circuits); see also Karen M. Blum, Supervisory Liability After Iqbal: Misunderstood but Not Misnamed, 43 URB. LAW. 541, 544-45 nn.15-18 (2011) (providing a comprehensive compilation of cases reflecting the various standards used to establish supervisory liability based on a failure to train, supervise, or discipline subordinates prior to Iqbal).
89. Iqbal, 556 U.S. at 694 (Souter, J., dissenting).
90. Petition for Writ of Certiorari, Iqbal, 556 U.S. 662 (No. 07-1015).
91. Iqbal, 556 U.S. at 676-77.
92. Compare Blum, supra note 95, at 555 (arguing that supervisory liability may be im- posed where supervisors act with "actual subjective knowledge of a subordinate's wrongdoing and a failure to prevent, remedy, or address the problem"), with Nahmod, supra note 86, at 279 (arguing that the Court was correct in adopting a "constitutional" approach to supervisory liability whereby plaintiffs must prove that supervisors acted with the same state of mind required to make out the constitutional violation).
93. See Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011) ("The landscape of [supervisory] claims after Iqbal remains murky . . . ."); Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) ("Much has been made about [the supervisory liability] aspect of Iqbal, but consensus as to its meaning remains elusive."). Even in the context of Bivens claims, the full meaning of Iqbal is unclear. For example, in al- Kidd v. Ashcroft, 580 F.3d 949, 952-53 (9th Cir. 2009), rev'd on other grounds, 131 S. Ct. 2074 (2011), a post-9/11 detainee alleged that Attorney General John Ashcroft developed, implemented, and set in motion a policy of using the federal material witness statute pretextually to arrest and detain terrorism suspects for whom there was insufficient evidence of probable cause to arrest on criminal charges in violation of the Fourth Amendment. The Ninth Circuit found that liability could be imposed if Ashcroft knowingly "fail[ed] to act in the light of even unauthorized abuses." Id. at 975-76. The Attorney General sought a rehearing en banc alleging that, under Iqbal, knowledge and acquiescence is no longer sufficient to impose supervisory liability. The court of appeals declined to hear the case en banc, and, although the Supreme Court granted certiorari, it declined to address the supervisory liability claim. Id., reh'g en banc denied, 598 F.3d 1129 (9th Cir. 2010), cert. granted in part, 131 S. Ct. 415 (2010).
94. See Arnett, 658 F.3d at 757 (construing supervisory liability as only available against "an individual for wrongs he personally directed or authorized his subordinates to inflict"); Reynolds v. Dormire, 636 F.3d 976, 981 (8th Cir. 2011) (dismissing a prisoner's complaint against the warden because it did not allege personal involvement in an accident that allegedly occurred due to the deliberate indifference of two correctional officers to prisoner's safety); Jones v. Horne, 634 F.3d 588, 602 (D.C. Cir. 2011) (holding that a pretrial detainee could not survive a motion to dismiss by the acting warden because the complaint failed to allege that the warden had any personal involvement in the decision to transfer him to the segregation unit or to expose him to adverse conditions of confinement); Santiago v. Warminster Twp., 629 F.3d 121, 130-34 (3d Cir. 2010) (explaining that to state a claim of supervisory liability against senior police officials for their subordinates' alleged use of excessive force that triggered plaintiff's heart attack, she must present plausible evidence that officials directed subordinates to violate her rights and that their direction was the proximate cause of the violation, such that supervisors gave directions that they "knew or should reasonably have known would cause others to deprive the plaintiff of her constitutional rights" (citing Conner v. Reinhard,
95. F.2d 384, 397 (7th Cir. 1988))); Porro v. Barnes, 624 F.3d 1322, 1327-28 (10th Cir. 2010) (holding that "plaintiff must establish a deliberate, intentional act" on the part of the sheriff "to violate plaintiff's rights" and, in the context of a due process challenge regarding the use of excessive force against a detainee, it is insufficient to show that the supervisor behaved knowingly or with deliberate indifference that a constitutional violation would occur at the hands of his subordinate; plaintiff's claim failed because there was no evidence that the defendant directly participated in the use of force, was present when the force was applied, or that he gave any advance approval to the use of a taser on the plaintiff (citing Serna v. Colo. Dep't of Corr.,
96. F.3d 1146, 1151 (10th Cir. 2006))); Simmons v. Navajo Cnty., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (reasoning that supervisory liability is a misnomer after Iqbal because each government official is liable only for her own misconduct; to survive summary judgment plaintiffs must have evidence that government officials themselves acted or failed to act unconstitutionally with regard to detainee who committed suicide, not merely that a subordinate did). But see Dodds, 614 F.3d at 1195 (acknowledging that "[d]efendant's argument implicates important questions about the continuing vitality of supervisory liability under § 1983 after the Supreme Court's recent decision in Ashcroft v. Iqbal," but, relying on the "causes to be subjected" language of § 1983, concluding that personal involvement does not require direct participation in the constitutional violation).
97. See, e.g., Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir. 2009) (reasoning that a supervisory official is liable only if she affirmatively participates in the acts that caused the constitutional deprivation or implements unconstitutional policies that causally result in constitutional injury; although plaintiff claimed that the supervisor affirmatively participated in the seizure of children from their homes without a warrant, the supervisor was neither the ultimate decisionmaker, nor was she actively involved in the decision to remove the children).
98. See, e.g., Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (holding that the supervisor could not be held liable for failure to supervise his subordinates on the scene because, after Iqbal, "a government official can be held liable only for his own misconduct"); Whitson v. Stone Cnty. Jail, 602 F.3d 920, 927-28 (8th Cir. 2010) (holding that a claim against a supervisor for failure to properly supervise and train officers who failed to protect plaintiff from sexual assault by a male prisoner could proceed only if the supervisor personally displayed deliberate indifference to the risk that plaintiff would be assaulted by other inmates, and Iqbal ruled that officers are liable only for their own misconduct and not for misdeeds of agents under a broad supervisory liability theory); cf. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (holding that even after Iqbal, the causal connection between a supervisor's wrongful conduct and the constitutional violation can be established based on the supervisor's "own culpable action or inaction in the training, supervision, or control of his subordinates"); Langford v. Norris, 614 F.3d 445, 460-61 (8th Cir. 2010) (holding that supervisors may incur liability either for their personal involvement in a constitutional violation or when their corrective inaction amounts to deliberate indifference to, or tacit authorization of, the unconstitutional conduct).
99. See, e.g., Dodds, 614 F.3d at 1197-99 (holding that, after Iqbal, a plaintiff may establish supervisory liability only by demonstrating that: "(1) [T]he defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy that (2) caused the complained of constitutional harm, and (3) acted with the state of mind required to establish the alleged constitutional violation"; knowledge and acquiescence would no longer suffice "unless that is the same state of mind required for the constitutional violation alleged"); see also Blum, supra note 95, at 543 n.12 (citing numerous federal district court decisions applying the "constitutional" approach to limit supervisory liability); Karen M. Blum, Section 1983 Litigation: Post-Pearson and Post-Iqbal, 26 TOURO L. REV. 433, 454-56 (2010) (citing circuit cases that have followed the "constitutional approach"); Nahmod, supra note 86, at 296-98 (presenting the argument in favor of the constitutional approach and citing cases).
100. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009).
101. See Graham v. Connor, 490 U.S. 386, 399 (1989) (holding that the constitutionality of the use of force during an arrest, investigatory stop, or other "seizure" is judged by an objective reasonableness standard under the Fourth Amendment).
102. See supra notes 65-66 and accompanying text (discussing Farmer v. Brennan, 511 U.S. 825, 937-38 (1994)). Note, however, that the standard under the Eighth Amendment mandates subjective, not just objective, deliberate indifference. Farmer, 511 U.S. at 937-38. The state of mind for substantive due process claims brought by arrestees and detainees varies from circuit to circuit, but the majority of the circuits follow the Eighth Amendment analysis. See supra note 69 and accompanying text; see also Levinson, supra note 50, at 565-71 (discussing the circuit split on how substantive due process claims brought by detainees, who have not yet been convicted of wrongdoing, should be adjudicated).
103. See Vance v. Rumsfeld, 653 F.3d 591, 599-605 (7th Cir. 2011) (reasoning that unlike for Iqbal's discrimination claim, Secretary of Defense Donald Rumsfeld could be held liable either for promulgating policies leading to plaintiffs' mistreatment or for his deliberate indifference in "failing to act to stop the torture of U.S. citizen detainees despite actual knowledge of reports of detainee abuse," contrary to substantive due process); Dodds, 614 F.3d at 1204 (concluding that after Iqbal, supervisory liability cannot be based on deliberate indifference "unless that is the same state of mind required for the constitutional deprivation he alleges"); Whitson, 602 F.3d at 927-28 (holding that a claim could proceed against jail supervisors for failing to protect the plaintiff from sexual assault by a male prisoner if the supervisors personally displayed deliberate indifference to the risk that the plaintiff would be assaulted by fellow inmates); Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (holding that supervisory officials may still be held liable for correctional defendants' wrongdoing on the basis of their own acts or omissions, where they act "with deliberate indifference toward the possibility that deficient performance of the task may contribute to a civil rights deprivation").
104. Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (holding that the district court erred in dismissing plaintiff's supervisory claim against the county sheriff, which sought to recover damages for injuries sustained when he was attacked by a deputy while other deputies stood by and watched; unlike Iqbal's claim of unconstitutional discrimination, a claim of unconstitutional conditions of confinement is actionable on a theory of deliberate indifference).
105. Id.; see also Parrish v. Ball, 594 F.3d 993, 1001-02 (8th Cir. 2010) (holding that although Iqbal mandates that a government official must, through her own individual acts, have violated the Constitution, liability can arise from a failure to supervise and train with regard to the treatment of detainees where there is evidence of notice regarding a pattern of unconstitutional acts, deliberate indifference, or tacit authorization of these offensive acts, failure to take sufficient remedial action, and evidence that the failure proximately caused the injury).
106. See, e.g., Sandra T.E. v. Grindle, 599 F.3d 583, 591 (7th Cir. 2010) (holding that Iqbal did not change the rule that when a state actor's deliberate indifference deprives someone of a protected liberty interest, contrary to substantive due process, that actor violates the Constitution regardless of whether it is a supervisor or a subordinate).
107. See Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 72 (3d Cir. 2011) (assuming, without deciding, that the district court properly used "actual knowledge and acquiescence" standard where the plaintiffs claim that supervisors failed to halt Fourth Amendment violations of their subordinates); Starr, 633 F.3d at 1196 ("We therefore conclude that where the applicable constitutional standard is deliberate indifference, a plaintiff may state a claim for supervisory liability based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by others."); Colvin v. Caruso, 605 F.3d 282, 292 (6th Cir. 2010) (holding that to impose supervisory liability, there must be evidence that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it or "at least authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers").
108. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
109. Id. at 1948 ("The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.").
110. See Arnett v. Webster, 658 F.3d 742, 757 (7th Cir. 2011) (construing post-Iqbal supervisory liability law to mean that "mere knowledge and acquiescence is not sufficient to impose such liability"); Arocho v. Nafziger, 367 F. App'x 942, 947 n.4 (10th Cir. 2010) ("After Iqbal, circuits that had held supervisors liable when they knew of and acquiesced in the unconstitutional conduct of subordinates have expressed some doubt over the continuing validity of even that limited form of liability." (citations omitted)); Bayer v. Monroe Cnty. Children & Youth Servs., 577 F.3d 186, 191 n.5 (3d Cir. 2009) (asserting that after Iqbal, proof of a supervisor's personal knowledge of subordinate's constitutional violations is insufficient to support liability); Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801(SAS), 2009 WL 1835939, at 6 (S.D.N.Y. June 26, 2009) (acknowledging that Iqbal abrogated several of the categories of supervisory liability previously recognized in the Third Circuit-namely situations where the supervisor knew of and acquiesced in a constitutional violation committed by a subordinate); see also SHELDON NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF § 1983 § 3:100 (4th ed. 1997 & Supp. 2011) ("[T]he Supreme Court in Ashcroft v. Iqbal . . . appears to have ruled that even deliberate indifference with actual knowledge [of subordinates' unconstitutional conduct] may not be sufficient in every case for supervisory liability." (citations omitted)).
111. See Argueta, 643 F.3d at 70 (observing the "uncertainty as to the viability and scope of supervisory liability after Iqbal" (citations omitted)); Dodds v. Richardson, 614 F.3d 1185, 1209-10 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (Tymkovich, J., concurring) (bemoaning the fact that Iqbal "muddied further these already cloudy waters" and "unfortunately did not provide a unified theory for the variety of supervisory liability cases we face").
112. Sandra T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (holding that, although prior to Iqbal the plaintiff would have been permitted to recover from a supervisor based on her "deliberate indifference" towards a subordinate's purposeful discrimination, "after Iqbal a plaintiff must also show that the supervisor possessed the requisite discriminatory intent"); Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1308 (11th Cir. 2009) (observing that the standard for holding a supervisor liable for actions of a subordinate is extremely rigorous and will be imposed only where the supervisor personally participates in the alleged constitutional violation or where there is a causal connection between the supervisor's actions and the alleged constitutional violation); see also supra notes 100-01. 118 See Parrish v. Ball, 594 F.3d 993, 1001-02 (8th Cir. 2010) (holding that Iqbal mandates that a government official must, through his own individual acts, have violated the Constitution, and liability can arise from a failure to supervise and train only if there is evidence of notice regarding a pattern of unconstitutional acts committed by subordinates, deliberate indifference, or tacit authorization of the offensive acts, as well as failure to take sufficient remedial action, and evidence that the failure proximately caused the injury); al-Kidd v. Ashcroft, 580 F.3d 949, 976 & n.25 (9th Cir. 2009) (acknowledging the dissent's contention that the "knowing failure to act" standard of supervisory liability did not survive Iqbal, but refusing to reach the issue); Diaz-Bernal v. Myers, 758 F. Supp. 2d 106, 132 (D. Conn. 2010) ("Courts are split over whether a failure to train claim can be the basis for supervisory liability post-Iqbal." (collecting cases)).
113. Parratt v. Taylor, 451 U.S. 527, 534 (1981).
114. See supra Part II.B.
115. See, e.g., Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 29 (1st Cir. 2005) (holding that the deficiency in training officers to recognize off-duty police demonstrated deliberate indifference that could be causally linked to the shooting of an off-duty officer).
116. IVAN E. BODENSTEINER & ROSALIE BERGER LEVINSON, STATE AND LOCAL GOVERNMENT CIVIL RIGHTS LIABILITY § 1:1 (2011).
117. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978) (rejecting vicarious liability).
118. See infra Part V.
119. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998); cf. Daniels v. Williams,
120. U.S. 327, 328 (1986) (holding that because due process violations require an abuse of government power, mere negligence is not sufficient).
121. Lewis, 523 U.S. at 849-50.
122. Id. at 852 n.12 (citing Youngberg v. Romeo ex rel. Romeo, 457 U.S. 307, 319-25 (1982)).
123. The Supreme Court in Lewis did hold that in situations where officials have no time to deliberate, such as high-speed police chases or prison riots, only intent to harm will give rise to liability under substantive due process. Lewis, 523 U.S. at 854. In these situations, it is highly unlikely that plaintiffs will be able to establish that subordinates violated clearly established federal rights, which this Article argues is necessary to trigger supervisory liability, see infra notes 201-07 and accompanying text, or that any constitutional wrongdoing could be attrib- uted to "failure to" misconduct of the supervisor. The point in invoking this line of cases is simply to illustrate that substantive due process prohibits the abuse of power, which is central to the supervisory liability doctrine. See Levinson, supra note 50, at 530. 129 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011); see also Ammons v. Dep't of Soc. & Health Servs., 648 F.3d 1020, 1033-34 (9th Cir. 2011) (holding that a hospital administrator, who failed to exercise professional judgment in supervising subordinates to ensure that they adequately monitored patient and staff relationships, could be held liable for his own conduct, which violated the Fourteenth Amendment).
124. Sandra T.E. v. Grindle, 599 F.3d 583, 590-91 (7th Cir. 2010).
125. See Levinson, supra note 69, at 341-43 (arguing that the Supreme Court took a wrong turn in 1988 when it adopted this draconian standard). Further, many appellate courts have adopted the Eighth Amendment subjective standard of criminal recklessness as the state of mind required for substantive due process claims. Id. at 329-31.
126. Professor Nahmod contends that the "constitutional approach" adopted by the Court in Iqbal best reflects the legislative history and text of § 1983. Nahmod, supra note 86, at 298-300. First, he relies on the Supreme Court precedent establishing that § 1983 itself has no state-of-mind requirement and thus the requisite state of mind should "be grounded on the relevant constitutional provision." Id. at 302. This makes sense where the supervisor is directly involved in the constitutional violation, but this Article contends that a supervisor's failure to train, supervise, or discipline subordinates in the face of constitutional wrongdoing constitutes an abuse of power whenever the "failure" manifests deliberate indifference. Thus, the "requisite state of mind" in all supervisory liability cases should be the same, and should not depend on the state of mind required to prove that subordinates violated constitutional rights. See supra notes 55-56 and accompanying text. Second, although Professor Nahmod concedes that both the statutory language and legislative history are inconclusive, he argues that "causes" should be interpreted to target only defendants who "either personally, or through intervening actors, causally bring about constitutional deprivations." Nahmod, supra note 86, at 301. The term "causes," however, can be interpreted in various ways. Professor Kinports argues that negligence should satisfy the causation requirement for supervisory liability. See Kit Kinports, The Buck Does Not Stop Here: Supervisory Liability in Section 1983 Cases, 1997 U. ILL. L. REV. 147 (1997). In the context of municipal liability cases, several Justices have argued that respondeat superior best reflects the tort principle of causation. See Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 430-31 (1997) (Breyer, J., dissenting); see also Malloy, supra note 17 (discussing retired Justice Stevens's assertion that respondeat superior best reflects congressional intent). This Article urges a more modest approach, suggesting simply that the Court apply the same deliberate indifference standard to satisfy causality that it has adopted in municipal liability decisions. See infra Part V.
127. Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) ("Much has been said about [the supervisory liability] aspect of Iqbal, but consensus as to its meaning remains elusive.").
128. See supra note 106 and accompanying text.
129. See supra notes 54-55 and accompanying text. 136 For example, the Fifth Circuit ruled that parents, who claimed that the supervisor of the Texas Department of Protective Services violated their Fourth Amendment rights by "approving" the removal of their children from the home, had to establish that the supervisor acted with subjective deliberate indifference-not just objective unreasonableness-in order to impose supervisory liability. Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir. 2009); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2082-83 (2011) (holding that, provided plaintiff's seizure under the federal material witness statute was objectively reasonable, as the Fourth Amendment requires, plaintiff could not pursue a Bivens claim on the theory that the Attorney General condoned seizures based on a pretextual, subjective purpose).
130. The constitutional approach may also lead to artful pleading. The facts in Iqbal portray extremely harsh conditions of confinement, whether or not motivated by discrimination. As a pretrial detainee, Iqbal could have brought his claim under substantive due process where the state of mind required is deliberate indifference, not intent. Some appellate courts have reasoned that the supervisory liability standard becomes less difficult depending on the state of mind required to establish the subordinates' constitutional wrongdoing. See supra notes 106-11. The Supreme Court's holding entices a plaintiff like Iqbal to abandon his central grievance-the discriminatory treatment of Arab Muslims-to enhance his chances of meeting a less stringent supervisory liability test. Cf. Sandra T.E. v. Grindle, 599 F.3d 583, 590 (7th Cir. 2010) (reasoning that supervisory liability could be established for teacher's abuse of girls only if the supervisor had the purpose of discriminating against girls based on gender in violation of the Equal Protection Clause, but that the supervisor's conduct in concealing reports of abuse and creating an atmosphere that allowed abuse to flourish demonstrated the deliberate indifference necessary to support a claim of substantive due process). Although the Supreme Court has clarified that substantive due process may not be invoked where the right asserted falls under a more explicit constitutional mandate, Graham v. Connor, 490 U.S. 386, 394 (1989), Grindle demonstrates that sometimes an official's misconduct may violate two independent constitutional rights.
131. See Whitley v. Albers, 475 U.S. 312, 327 (1986) (justifying the stricter standard where prison officials need to respond quickly and should be given more deference); see also Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011) (holding that the lower court erred in applying an Eighth Amendment deliberate indifference standard in which prisoners must show "a wanton disregard sufficiently evidenced by denial, delay, or interference with prescribed health care" because the case involved civil confinement, which is governed by the Due Process Clause, mandating a more "plaintiff-friendly" standard-namely "whether the defendant failed to exercise a reasonable professional judgment" (internal citations omitted)).
132. See supra note 128 (discussing Cnty. of Sacramento v. Lewis, 523 U.S. 833 (1998)). 140 See Levinson, supra note 50, at 567-70. 141 Professor Blum suggests that uniformity be achieved by imposing a "subjective" deliberate indifference test. Blum, supra note 95, at 555. Although this reflects the current majority position among the circuits, this Article proposes that an objective deliberate indifference standard best comports with the statutory underpinnings of § 1983. See infra Part V.
133. See supra notes 74-77 and accompanying text. 143 See also Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 75-76 (3d Cir. 2011) (acknowledging the difficulty of holding high-ranking federal officials liable in a Bivens action for failing to supervise the enforcement of federal law throughout the country).
134. Note, however, that some post-Iqbal courts have applied a subjective deliberate indifference, rather than an "intent to discriminate," standard for these claims. See, e.g., Doe v. Flaherty, 623 F.3d 577, 584 (8th Cir. 2010) (holding that school official may be held liable for coach's sexual abuse of student only where plaintiffs can prove she had actual notice of a pattern of unconstitutional acts by the coach, that she showed deliberate indifference to those acts, that she failed to take sufficient remedial action, and that such failure proximately caused injury to the student); Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1266-67 (11th Cir. 2010) (rejecting supervisory liability of a principal who was on notice of two incidents of sexual harassment involving a particular teacher where the court determined that the complaints did not rise to the level of "obvious, flagrant, rampant" violations of constitutional rights required to trigger any responsibility on the part of the principal to act; the court reasoned that a subordinate's history of abuse must be widespread and of continued duration and that, even if the principal's acts and omissions reflected serious deficiencies sufficient to impose Title IX liability, they did not establish supervisory liability under § 1983; after Iqbal, a plaintiff cannot establish supervisory liability without evidence that a supervisor personally participated in the sexual assault, was on notice of a history of the perpetrator's widespread abuse of female students, or had a policy in place permitting such assaults).
135. See supra notes 101-03, 115, 117-18. 146 Monroe v. Pape, 365 U.S. 167, 184 (1961).
136. 131 S. Ct. 1350 (2011).
137. Id. at 1355.
138. Id. An individual capacity suit would likely have been dismissed under absolute immunity. See infra notes 210-12 and accompanying text.
139. See infra Part V.A.
140. Connick, 131 S. Ct. at 1356.
141. Id. at 1355.
142. Id. at 1356. A blood-stained swatch of fabric taken from a victim's pants disclosed that the perpetrator had blood type B. Id.
143. Id.
144. Id.
145. Id.
146. Id.
147. Id.
148. Id. at 1357.
149. Id.
150. Id.
151. Id. at 1358.
152. Id. at 1355-56.
153. Id. at 1356.
154. Id. at 1358.
155. Id. (emphasis added).
156. Id. at 1359. The rationale is that because a failure to train is not itself facially unlawful, to establish a direct causal link to the constitutional injury, plaintiffs must show the action was taken with deliberate indifference to its known or obvious consequences. Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 409 (1997).
157. Connick, 131 S. Ct. at 1360 (emphasis added).
158. Id. at 1354.
159. Id. at 1361.
160. Id.; see also Bryson v. City of Oklahoma City, 627 F.3d 784, 789 (10th Cir. 2010) (holding that former inmate wrongfully convicted of kidnapping and rape, who spent seventeen years in prison, could not seek relief against the city based on its chemist's conduct in concealing exculpatory evidence and falsifying test reports because such acts were not a "highly predictable or plainly obvious" consequence of her having received only nine months of on-the-job training and no supervision by an individual with a background in forensic science); Brown v. Callahan, 623 F.3d 249, 255 (5th Cir. 2010) ("Proof of deliberate indifference normally requires a plaintiff to show a pattern of violations and that the inadequate training or supervision is obvious and obviously likely to result in a constitutional violation." (citations omitted)).
161. 520 U.S. 397 (1997).
162. Id. at 411. Brown was a failure-to-screen case, and the Court asserted that it was necessary to ratchet up the causality standard in hiring cases. However, many appellate courts have applied its stringent language to failure-to-train and failure-to-supervise cases. See, e.g., Peterson v. City of Fort Worth, 588 F.3d 838, 850 (5th Cir. 2009) (holding that a city could be liable under a "failure to supervise" theory, only if it was obvious that "the highly predictable consequence" of the specific deficiency in supervision was that officers would apply force in such a way as to violate the Fourth Amendment). City of Canton v. Harris, 489 U.S. 378, 390 (1989) held that plaintiffs must prove deliberate indifference to an "obvious" need to train, whereas Brown, 520 U.S. at 411, required proof that the specific constitutional rights violation was the "plainly obvious" consequence of failing to properly screen an applicant. The Supreme Court's citation in Connick to Brown's "obvious consequence" test, Connick, 131 S. Ct. at 1360, appears to confirm its applicability to failure-to-train cases. Although this extension may be criticized as lacking support in the Court's analysis, the key point here is that "obviousness" may provide a substitute for the pattern of violations normally necessary to establish liability.
163. Connick, 131 S. Ct. at 1361.
164. Id.
165. Id. at 1361-62.
166. Id. at 1362.
167. Id. at 1363. The Court in Connick did not address whether the District Attorney's Office could be held liable under a different "failure to" theory, such as a failure to supervise new inexperienced deputies or a failure to discipline them, where the unique law school education might not be as significant a factor. Compare the remand in Brown where, after the Supreme Court rejected liability on a failure-to-screen theory, the lower courts reinstated the judgment against the county based on its failure to train officers regarding the use of excessive force. Brown v. Bryan Cnty., 219 F.3d 450, 453 (5th Cir. 2000).
168. Connick, 131 S. Ct. at 1365.
169. Id.
170. Id. at 1377, 1387 (Ginsburg, J., dissenting).
171. Id. at 1379.
172. Id. at 1382.
173. Id. at 1380.
174. Id.
175. Id. For a thorough critique of the majority's analysis, see generally Susan A. Bandes, The Lone Miscreant, the Self-Training Prosecutor, and Other Fictions: A Comment on Connick v. Thompson, 80 FORDHAM L. REV. 715 (2011). Professor Bandes challenges the assumption that Thompson's constitutional rights violation stemmed from a single incident, as well as the Court's conception of training and its "atomistic" vision of § 1983. Id. at 716-17. Claims of misconduct by prosecutors in the New Orleans District Attorney's Office recently returned to the Supreme Court. In Smith v. Cain, 132 S. Ct. 627, 630-31 (2012), the Court determined that the failure of the office to produce exculpatory evidence before trial violated the defendant's right to due process because the information was material to the defendant's guilt. In his brief, Smith asserted that appellate courts have overturned four Orleans Parish death sentences cases for Brady violations and eight non-capital cases where Brady violations caused reversals. Brief for Petitioner, Smith, 132 S. Ct. 627 (No. 10-8145), 2011 WL 3608728, at 32. The Smith brief lambasted Connick's office for having "developed an unrivaled reputation for its disregard of Brady's requirements." Id.
176. See, e.g., Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir. 2009) (reasoning that supervisory liability can be established only where the official acted with subjective deliberate indifference-" the equivalent of reckless disregard for a substantial risk"; failure to alleviate a significant risk that should have been, but was not, perceived is insufficient); Palmer v. Marion Cnty., 327 F.3d 588, 594 (7th Cir. 2003) (requiring the plaintiff to establish that the sheriff knew plaintiff was assigned to a particular cell block and actually inferred that this assignment would create a substantial risk of serious harm); Boyd v. Knox, 47 F.3d 966, 968 n.1 (8th Cir. 1995) (rejecting plaintiff's argument that supervisory liability may be based on a "knew or should have known" standard, and instead citing Farmer and applying the subjective test of deliberate indifference, which requires proof of supervisors' actual knowledge of the violations to support liability).
177. See supra note 71 and accompanying text. 189 See, e.g., Am. Fed'n of Labor & Cong. of Indus. Org. v. City of Miami, 637 F.3d 1178, 1188-89 (11th Cir. 2011) (holding that supervisory liability requires evidence that the supervisor actually knew that constitutional rights were being violated and yet failed to intervene); Doe v. Flaherty, 623 F.3d 577, 584-86 (8th Cir. 2010) (holding that school official could not be held liable under § 1983 for a coach's sexual harassment of a student unless there was evidence that the school official had actual notice of the sexual harassment and then showed deliberate indifference to that abuse by failing to take sufficient remedial action); Brown v. Callahan, 623 F.3d 249, 255-57 (5th Cir. 2010) (holding that "[d]eliberate indifference implies an official's actual knowledge of facts showing that a risk of serious harm exists as well as the official's having actually drawn that inference," and here the sheriff "did not have the subjective knowledge required for deliberate indifference and imputation of liability"); Trentadue v. Redmon, 619 F.3d 648, 652-53 (7th Cir. 2010) (holding that to succeed on a gender discrimination claim against a supervisor of a male instructor who sexually abused a student, the plaintiff had to have evidence that the supervisor actually knew about the instructor's "sexual misconduct and facilitated, approved, condoned, or turned a blind eye to it"); Dodds v. Richardson, 614 F.3d 1185, 1196 n.5 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (in assessing whether the defendant acted with deliberate indifference, plaintiffs were required to show supervisor had actual subjective knowledge of the risk of constitutional injury and disregarded that risk). But see Santiago v. Walls, 599 F.3d 749, 758-59 (7th Cir. 2010) (arguing that where a warden is charged with failing to protect inmates from violence at the hands of fellow prisoners it suffices, at the pleading stage, to allege that the warden "knew or should have known" that inmate was dangerous because this states a claim that the warden "actually knew or consciously turned a blind eye toward an obvious risk," and thus district court should not have dismissed this claim); Sandra T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (holding that even though "there is no theory of respondeat superior for constitutional torts, supervisors can violate the Constitution themselves if they know about the unconstitutional conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see").
178. While condoning the "constitutional" approach to supervisory liability, Professor Nahmod concedes that it cannot be reconciled with the Supreme Court's interpretation of causality in Canton. See Nahmod, supra note 86, at 283 (noting the "glaring inconsistency be- tween Iqbal's constitutional approach and Harris's deliberate indifference standard for § 1983 local government liability for failure to train"). Professor Nahmod argues that Canton was wrongly decided and should be revisited, whereas this author contends that Canton should be preserved and used to support supervisory liability based on omissions in training, supervision, or discipline that can be causally linked to subordinates' wrongdoing.
179. Wilson v. Seiter, 501 U.S. 294, 300 (1991) (extending the subjective deliberate indifference test to Eighth Amendment claims alleging unconstitutional conditions of confinement).
180. See, e.g., Sandin v. Conner, 515 U.S. 472, 485 (1975) (holding that when the state punishes convicted prisoners, this does not violate fundamental liberty interests protected by the Due Process Clause).
181. See supra note 144 and accompanying text. 194 Connick v. Thompson, 131 S. Ct. 1350 (2011).
182. Id. at 1360.
183. See, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 484-85 (1986) (holding that government entities may be held liable for a single decision made by someone who has the authority to and who is acting as the final decisionmaker for that entity); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978) (holding that conduct of those "whose edicts or acts may fairly be said to represent official policy" are binding on a municipality).
184. Connick, 131 S. Ct. at 1360 (citing Bd. of Cnty. Comm'rs v. Brown, 520 U.S. 397, 407 (1997)) (emphasis added).
185. Id. (citing City of Canton v. Harris, 489 U.S. 378, 395 (1989)) (O'Connor, J., concurring in part and dissenting in part).
186. See, e.g., Blankenhorn v. City of Orange, 485 F.3d 463, 486 (9th Cir. 2007) (holding that the Police Chief could be held liable for a deputy's use of excessive force due to his failure to effectively discipline regarding previous complaints, thus justifying a rational factfinder to conclude that chief reasonably should have known the deputy would cause constitutional injuries like the ones plaintiff suffered); Poe v. Leonard, 282 F.3d 123, 140-42 (2d Cir. 2002) (acknowledging the Second Circuit's understanding that supervisory liability may be based on a supervisor's "gross negligence in failing to supervise his subordinates who commit such wrongful acts, provided that the plaintiff can show an affirmative causal link between the supervisor's inaction and her injury", and affirming that a "knew or should have known" or "constructive notice" standard applies); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) ("A plaintiff must show actual or constructive knowledge of a risk of constitutional injury, deliberate indifference to that risk, and 'an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.'" (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994))); Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) ("[S]upervisory liability does not require a showing that the supervisor had actual knowledge of the offending behavior; he 'may be liable for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or willful blindness.'" (citing Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994))); Greason v. Kemp, 891 F.2d 829, 836-37 (11th Cir. 1990) (following the Supreme Court's analysis in City of Canton and determining that supervisory official could be liable for deliberate indifference to an inmate's psychiatric needs if his failure to adequately train and supervise subordinates demonstrated deliberate indifference to the inmate's needs, if "a reasonable person in the supervisor's position would know that this failure to train and supervise reflected deliberate indifference," and if the conduct could be causally linked to the constitutional infringement).
187. See cases cited supra note 189 (adopting a subjective deliberate indifference test for supervisory liability post-Iqbal); Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (reasoning that just as a failure to train may amount to a policy of deliberate indifference that triggers municipal liability, so too a failure to supervise that is sufficiently inadequate that it amounts to deliberate indifference triggers supervisory liability); Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) ("The requisite causal connection can be established . . . by setting in motion a series of acts by others or by knowingly refusing to terminate a series of acts by others which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury."); Alicea v. Wilcox, No. 09-CV-12231-RGS, 2011 WL 1625032, at 1 (D. Mass. Apr. 28, 2011) (applying the First Circuit's constructive notice rule that "even if a supervisor lacks actual knowledge of censurable conduct, he may be liable for the foreseeable consequences of such conduct if he would have known of it but for his deliberate indifference or willful blindness, and if he had the power to alleviate it"); Hill v. Robeson Cnty., 733 F. Supp. 2d 676, 688 (E.D.N.C. 2010) (acknowledging post-Iqbal that in the Fourth Circuit supervisory liability may be established if "the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury," and yet acted with deliberate indifference thereto).
188. Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009).
189. See Owen v. City of Independence, 445 U.S. 622, 650-57 (1980).
190. Scheuer v. Rhodes, 416 U.S. 232, 243 (1974).
191. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
192. Anderson v. Creighton, 483 U.S. 635, 640-41 (1987); see also BODENSTEINER & LEVINSON, supra note 122, § 2:8. 206 See Kit Kinports, Iqbal and Supervisory Liability, 114 PENN ST. L. REV. 1291, 1300-08 (2010). Professor Kinports carefully deconstructs the argument that Iqbal's treatment of supervisory liability is justified on grounds that it avoids a complicated qualified immunity inquiry. She rejects the approach followed by some courts that, in addition to proving the subordinate's actions violated clearly established constitutional rights, plaintiffs must also prove that it was clearly established that the supervisor would be held liable for the constitutional violations. Id.
193. Id. at 1304-05. Professor Kinports states: [A] supervisor whose subordinate has violated clearly established law and who herself satisfies the pre-Iqbal standard of supervisory liability-because she was deliberately indifferent to that violation, or knew of and acquiesced in it-cannot be said to have simply made a "reasonable mistake" . . . . It is the plaintiff's constitutional rights that must be clearly established, not the supervisor's deliberate indifference or the law governing the standard of supervisory liability. Id. at 1305.
194. See BODENSTEINER & LEVINSON, supra note 122, §§ 2:2-2:5. In fact, legislators are even shielded from suits for injunctive relief. See id. § 2:3.
195. See Forrester v. White, 484 U.S. 219 (1988); see also Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) (applying qualified, not absolute, immunity in analyzing whether the former U.S. Attorney General may be subject to suit for damages on a claim that he instructed his subordi nates to use the federal material witness statute as a pretext to detain terrorist suspects preventively).
196. Van de Kamp v. Goldstein, 129 S. Ct. 855, 859-65 (2009).
197. Id. at 860-63.
198. Id. at 862-63.
199. Connick v. Thompson, 131 S. Ct. 1350, 1355 (2011). Although the Supreme Court does not reference this incongruity in its opinion, permitting a suit against Connick as a policymaker in his official capacity when he would be absolutely insulated from liability in his individual capacity might have given some Justices pause. However, earlier Supreme Court cases explain why entities cannot partake in the immunities afforded officials sued in their personal capacity under § 1983. In Owen v. City of Independence, 445 U.S. 622, 650-57 (1980), the Court examined the legislative history of § 1983 and concluded that no good faith defense existed at common law for government entities, and that policy considerations favored liability. The Court stressed that imposing liability would encourage more careful decisionmaking, and that government should err on the side of protecting rights. Id. at 651-52. Further, the Court relied in part on the protected status of officials to hold that government entities should be held liable so that victims of civil rights violations are not left without a remedy. Id. at 651. The majority in Connick ignored this concern, and, in fact, left Thompson without a remedy. See Vivian Berger, Opinion, No Recompense for John Thompson's Stolen Years, NAT'L L.J., June 20, 2011.
200. See BODENSTEINER & LEVINSON, supra note 122, § 2:5. 215 Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 77 (3d Cir. 2011) (holding that, although Iqbal barred a damage action against high-ranking INS officials, plaintiffs were "still free to pursue their official capacity claims for injunctive relief against any further intimidation or unlawful entry into their home"); cf. City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983) (holding that a plaintiff does not have standing to seek injunctive relief absent evidence that he himself would again be subjected to unconstitutional misconduct). Lyons has been used extensively in the federal courts of appeals to preclude injunctive relief. See BODENSTEINER & LEVINSON, supra note 122, § 2:31. 216 This approach sufficiently insulates supervisors from liability because they will be protected unless they act with deliberate indifference to their subordinates' violation of clearly established rights and their failure to act is causally linked to the violation. On the other hand, it has been noted that courts generally are "less willing to grant qualified immunity to supervisory officials than they are to street-level officials." Teressa E. Ravenell, Blame It on the Man: Theorizing the Relationship Between § 1983 Municipal Liability and the Qualified Immunity Defense, 41 SETON HALL L. REV. 153, 196 (2011) (arguing that because qualified immunity is based on whether a reasonable official in the defendant's position would know the conduct was illegal, higher-ranking officials are less likely to enjoy qualified immunity since they should know more than subordinates and they are usually better equipped to determine the legality of their behavior, at least with regard to knowledge of the relevant legal rules). However, it is also more likely that, in the event damages are awarded, government entities will indemnify high-ranking officials who have greater political clout. Id. at 196-97.
201. City of Canton v. Harris, 489 U.S. 378, 396 (1989) (O'Connor, J., concurring in part and dissenting in part).
202. Connick v. Thompson, 131 S. Ct. 1350, 1369 (2011) (Scalia, J., concurring). For retired Justice Stevens's response to this statement, see Malloy, supra note 17 and accompanying text.
203. See, e.g., Conn v. City of Reno, 572 F.3d 1047 (9th Cir. 2009), opinion amended & superseded on denial of reh'g en banc, 591 F.3d 1081 (9th Cir. 2010), vacated, City of Reno v. Conn, 131 S. Ct. 1812 (2011) (asking the Ninth Circuit to reconsider its denial of summary judgment to a city charged with failing to train police officers and failing to implement written policies on suicide prevention in a case involving the officers' failure to report to jail officials that the detainee had attempted to choke herself with a seatbelt in a paddy wagon and had threated to kill herself before arriving at the jail).
204. Connick, 131 S. Ct. at 1361.
205. In Canton, Justice O'Connor cited the example of failing to train officers as to the constitutional limits on the use of deadly force, despite the obvious need to do so. Canton, 489 U.S. at 390 (O'Connor, J., concurring in part and dissenting in part).
206. See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 27-29 (1st Cir. 2005).
207. See Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 440-41 (2d Cir. 2009).
208. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1318-20 (10th Cir. 2002).
209. See Cruz v. City of Laramie, 239 F.3d 1183, 1191 (10th Cir. 2001).
210. Moldowan v. City of Warren, 578 F.3d 351, 393 (6th Cir. 2009).
211. Connick v. Thompson, 131 S. Ct. 1350, 1361-62 (2011).
212. Id. at 1362.
213. Id. at 1361.
214. Id.
215. Id. at 1379 (Ginsburg, J., dissenting) ("Connick acknowledged[ ] many of his prosecutors 'were coming fresh out of law school,' and . . . attorneys with little experience . . . advance[d] quickly to supervisory positions.").
216. See, e.g., Parrish v. Ball, 594 F.3d 993, 1000-02 (8th Cir. 2010) (holding that supervisory liability may arise from a failure to supervise and train only if there is evidence of a pattern of unconstitutional acts committed by subordinates); Bryant v. Jones, 575 F.3d 1281, 1299-1300 (11th Cir. 2009) (acknowledging that normally supervisory liability can be established only where there is a history of widespread abuse, rather than "isolated occurrences").
217. See supra notes 221-26 and accompanying text. 234 See supra note 20 and accompanying text.