Section 1983 Litigation/Liability of Supervisors
In many § 1983 actions, the plaintiff seeks to impose liability not only on the officer who directly engaged in the allegedly unconstitutional conduct (e.g., a police officer) but also on a supervisory official (e.g., the chief of police). The claim against the supervisor is frequently premised upon allegations that the supervisor knew or should have known there was danger that the subordinate would engage in the unconstitutional conduct, and that the supervisor had the authority to take steps to prevent the conduct, yet failed to act. Like municipal liability, claims against supervisors normally seek to impose liability upon one party (the supervisor) for a wrong directly inflicted by another party (the subordinate). In some cases, however, a supervisor may have directly inflicted the harm or participated in doing so.
The Supreme Court, in Ashcroft v. Iqbal, held that, like § 1983 municipal liability, the liability of a supervisor under § 1983 may not be based on respondeat superior, but only on the supervisor’s own wrongful acts or omissions. And, like municipal liability, there must be a sufficient causal link or nexus between the supervisor’s wrongful conduct and the violation of the plaintiff’s federally protected right.
However, there are important differences between the liability of a supervisor and municipal liability under § 1983:
- The liability of a supervisor is a form of personal liability; municipal liability is a form of entity liability.
- Because the liability against a supervisor imposes personal liability, supervisors may assert a common-law absolute or qualified immunity defense. Municipalities may not assert these immunity defenses, although municipalities sued under § 1983 are absolutely immune from punitive damages.
- A municipal entity may be liable under § 1983 only when the violation of the plaintiff’s federal right is attributable to the enforcement of a municipal policy or practice. By contrast, supervisory liability does not depend on a municipal policy or practice.
Prior to Iqbal, the courts articulated standards for the § 1983 liability of supervisors. Although these standards varied somewhat from circuit to circuit, they generally required a showing (1) that the supervisory defendant either acquiesced in or was deliberately indifferent to the subordinate’s unconstitutional conduct; and (2) that the supervisor’s action or inaction was “affirmatively linked” to the deprivation of the plaintiff’s federal rights. However, there appeared to be some disagreement as to whether the requisite culpability for supervisory inaction can be established on the basis of a single incident of subordinates’ misconduct, or whether a pattern or practice of constitutional violation must be shown.
In any case, lower federal courts must reevaluate this circuit court authority in light of the Supreme Court’s decision in Iqbal. Iqbal was a Bivens action, and the Court held that because there is no respondeat superior liability under § 1983 or in Bivens actions, a supervisor cannot be held liable for the constitutional wrongs of subordinate employees. The Court found that “supervisory liability” is a “misnomer,” and that a supervisor, like any other official, may be found liable under § 1983 only on the basis of her own unconstitutional conduct. The vexing question is determining the type of conduct by a supervisor that is a proximate cause of the violation of the plaintiff’s federal right.
The complaint in Iqbal alleged the following: “In the wake of the September 11, 2001, terrorist attacks,” the plaintiff, Javaid Iqbal, a citizen of Pakistan and a Muslim, was arrested by FBI and INS agents on “charges of fraud in relation to identification documents and conspiracy to defraud the United States.” Iqbal asserted constitutional claims for damages arising out of his treatment, after being designated a “person of high interest,” while detained pending trial at the Administrative Maximum Special Housing Unit at the Metropolitan Detention Center (MDC) in Brooklyn, New York. The complaint named numerous federal officers as defendants, ranging “from the correctional officers who had day-to-day contact with [Iqbal] during the term of his confinement, to the wardens of the MDC facility, all the way to” the defendants before the United States Supreme Court, John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the director of the FBI. Because Iqbal’s claims were asserted against federal officials, they came under the Bivens doctrine rather than § 1983. The Supreme Court, however, made clear that the same principles governing the liability of supervisory officials for constitutional violations apply in both § 1983 and Bivens actions.
Iqbal’s complaint alleged that while detained at MDC, jailers, without justification, “‘kicked him in the stomach, punched him in the face, and dragged him across’ his cell, . . . subjected him to serial strip and body-cavity searches . . . and refused to let him and other Muslims pray because there would be ‘[n]o prayers for terrorists.’” Iqbal alleged that Ashcroft and Mueller “‘knew of, condoned, and willfully and maliciously agreed to subject [Iqbal]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest,’ . . . that Ashcroft was the ‘principal architect’ of this invidious policy, and that Mueller was ‘instrumental’ in adopting and executing it.”
Applying the plausibility pleading standard from Bell Atlantic Corp. v. Twombly, the Supreme Court held that the complaint did not allege facts constituting a plausible claim that the supervisory defendants adopted the alleged policy with the intent to discriminate on the basis of race, religion, and national origin. A more plausible explanation was “that the Nation’s top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.”
The complaint, however, also alleged a second theory for imposing liability against the supervisory defendants. Iqbal argued “that, under a theory of ‘supervisory liability,’ [Ashcroft and Mueller] can be liable for ‘knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.’” In other words, Iqbal argued, “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution.” Interestingly, Ashcroft and Mueller conceded that they would be subject to supervisory liability if they “’had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being of ‘high interest’ and they were deliberately indifferent to that discrimination.’”
Nevertheless, the Supreme Court emphatically rejected this “knowledge and deliberate indifference” argument as well. Although not clearly spelled out, Iqbal, in fact alleged two separate theories for imposing liability against the supervisory defendants, i.e., promulgation of the alleged discriminatory policy; and knowledge and deliberate indifference. Without briefing and argument on the supervisory liability issue, and without referring to the extensive circuit court authority on the issue, the Court jettisoned the very concept of supervisory liability, and held that a supervisor may be found liable under § 1983 or Bivens only when the supervisor herself engaged in unconstitutional conduct. In Iqbal, this required a showing that the supervisory defendants either adopted a policy, or directed action by a subordinate, with the alleged impermissible discriminatory intent. The Court stated that because there is no vicarious liability under § 1983 or Bivens,
“supervisory liability” is a misnomer. . . . [E]ach Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, [discriminatory] purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.
Therefore, Ashcroft and Mueller “cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic.” The plaintiff must demonstrate that the supervisor was a constitutional wrongdoer. In the author’s view, the Court’s decision does not mean that a supervisor had to have direct contact with the plaintiff. It means, however, that the supervisor must have engaged in conduct with the requisite culpability that set the wheels in motion leading to the violation of the plaintiff’s constitutionally protected rights. So viewed, the issue requires a determination of the supervisor’s own culpability and of proximate causation. These issues are related because the more egregious the supervisor’s conduct, the more likely it will be found to be the proximate cause of the violation of the plaintiff’s rights.
Justice Souter, dissenting, articulated the severe implications of the Court’s complete rejection of supervisory liability:
Lest there be any mistake, . . . the majority is not narrowing the scope of supervisory liability; it is eliminating Bivens [and § 1983] supervisory liability entirely. The nature of supervisory liability theory is that the supervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects. . . . [The majority] rests on the assumption that only two outcomes are possible here: respondeat superior liability, in which “[a]n employer is subject to liability for torts committed by employees while acting within the scope of their employment,” . . . or no supervisory liability at all. . . . In fact, there is quite a spectrum of possible tests for supervisory liability: it could be imposed where a supervisor has actual knowledge of a subordinate’s constitutional violation and acquiesces, . . . or where supervisors “know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see”; or where the supervisor has no actual knowledge of the violation but was reckless in his supervision of the subordinate; or where the supervisor was grossly negligent.
To summarize, the Court in Iqbal, while recognizing that a supervisory official’s promulgation of policy may provide a basis for imposing liability, found that the complaint did not contain factual allegations establishing a plausible claim that the supervisory defendants adopted the claimed policy with a discriminatory intent. Further, the Court rejected the notion that liability may be imposed against a supervisor based on his knowledge of and deliberately indifferent failure to prevent constitutional violations.
Iqbal “has generated significant debate about the continuing vitality and scope of [§ 1983] supervisory liability.”
References[edit | edit source]
- 556 U.S. 662 (2009).
- Id. at 677. See also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 n.58 (1978). The liability of a supervisor “must be based on more than the right to control employees. Likewise, simple awareness of employees’ misconduct does not lead to supervisory liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citations and internal quotation marks omitted).
- See, e.g., Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999); Aponte Matos v. Toledo-Davila, 135 F.3d 182, 192 (1st Cir. 1998); Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
- Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987) (“[W]hen supervisory liability is imposed, it is imposed against the supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates.”).
- See Walton v. Gomez (In re Estate of Booker), 745 F.3d 405, 436 (10th Cir. 2014) (no need for “special” qualified immunity analysis for supervisory official).
- See infra Chapter 11.
- Rizzo v. Goode, 423 U.S. 362, 371 (1976). Following is a breakdown of standards by circuit for supervisory liability pre-Iqbal:
- First Circuit: Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 25 (1st Cir. 2006) (absent participation in challenged conduct, supervisor can be liable only if subordinate committed constitutional violation and supervisor’s action or inaction was “affirmatively linked” to violation in that it constituted supervisory encouragement, condonation, acquiescence, or gross negligence amounting to deliberate indifference); Aponte Matos v. Toledo-Davila, 135 F.3d 182, 192 (1st Cir. 1998) (supervisory encouragement, condonation, acquiescence, or deliberate indifference). See also Wilson v. Town of Mendon, 294 F.3d 1, 12–13 (1st Cir. 2002); Camilo-Robles v. Hoyos, 151 F.3d 1, 12–13 (1st Cir. 1998), cert. denied, 525 U.S. 1105 (1999).
- Second Circuit: Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (direct participation in wrongdoing, failure to remedy wrong after being informed of it, creation of policy or custom, grossly negligent supervision, or deliberately indifferent failure to act on information about constitutional violations). See also Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir. 2003); Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
- Third Circuit: Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (supervisor must have personally directed or have had knowledge of and acquiesced in unlawful conduct). See also Baker v. Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995).
- Fourth Circuit: Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (actual or constructive knowledge of risk of constitutional injury and deliberate indifference to that risk and affirmative link between supervisor’s inaction and constitutional injury); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 513 U.S. 813, 814 (1994) (plaintiff must establish “(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices;’ and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered” (quoting Miller v. Bearn, 896 F.2d 848, 854 (4th Cir. 1990))). See also Randall v. Prince George’s Cnty., 302 F.3d 188, 206 (4th Cir. 2002).
- Fifth Circuit: Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 254 (5th Cir. 2005) (deliberate indifference standard; adopting Farmer v. Brennan, 511 U.S. 825 (1994), definition of deliberate indifference); Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005) (deliberately indifferent training or supervision causally linked to violation of plaintiff’s rights).
- Sixth Circuit: Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (“Plaintiff must also show that the supervisor somehow encouraged or condoned the actions of their inferiors. Plaintiff, however, presents evidence only that [the] supervisors . . . failed to review their subordinates’ work.” (citations omitted)); Doe v. City of Roseville, 296 F.3d 431, 440 (6th Cir. 2002) (“Supervisor liability [under § 1983] occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he [or she] fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.”) (citing Braddy v. Fla. Dep’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir. 1998)); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (supervisory liability cannot be based on mere failure to act; the supervisor must have “at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending [subordinate] officers”) (citing Hays v. Jefferson Cnty., 668 F.2d 869, 874 (6th Cir.), cert. denied, 459 U.S. 833 (1982)); Poe v. Haydon, 853 F.2d 418, 429 (6th Cir. 1988). See also Combs v. Wilkinson, 315 F.3d 548, 558 (6th Cir. 2002).
- Seventh Circuit: Jones v. Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988) (conduct of subordinate must have occurred with supervisor’s knowledge, consent, or deliberate indifference). See also Gossmeyer v. McDonald, 128 F.3d 481, 494 (7th Cir. 1997).
- Eighth Circuit: Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996) (supervisor may be liable under § 1983 if (1) she had notice of subordinates’ unconstitutional actions; (2) she “[d]emonstrated deliberate indifference to or tacit authorization of the offensive acts”; and (3) her failure to act “proximately caused injury”).
- Ninth Circuit: Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (“Supervisors can be held liable for: 1) their own culpable action or inaction in the training, supervision, or control of subordinates; 2) their acquiescence in the constitutional deprivation of which a complaint is made; or 3) conduct that showed a reckless or callous indifference to the rights of others.”).
- Tenth Circuit: Lankford v. City of Hobart, 73 F.3d 283, 287 (10th Cir. 1996) (“personal direction” or actual knowledge of wrongdoing and acquiescence) (following Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992), cert. denied, 509 U.S. 923 (1993)).
- Eleventh Circuit: Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003) (supervisor (1) personally participated in unconstitutional conduct; (2) failed to correct widespread violations; (3) initiated custom or policy that was deliberately indifferent to constitutional rights; or (4) directed subordinates to act unconstitutionally or knew they would do so yet failed to stop them from doing so). See also Dalrymple v. Reno, 334 F.3d 991, 995–96 (11th Cir. 2003).
- D.C. Circuit: Barham v. Ramsey, 434 F.3d 565, 578 (D.C. Cir. 2006) (supervisory liability requires showing “supervisor . . . [knew] about the conduct and facilitate[d] it, approve[d] it, condone[d] it, or turn[ed] a blind eye for fear of what he might see”); Int’l Action Center v. United States, 365 F.3d 20, 25–28 (D.C. Cir. 2004) (supervisors must have had “actual or constructive knowledge of past transgressions or” been “responsible for or aware of ‘clearly deficient’ training”); Haynesworth v. Miller, 820 F.2d 1245, 1259–60 (D.C. Cir. 1987) (breach of duty to instruct subordinate to prevent constitutional harm).
- Compare Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989) (“[A] single incident, or a series of isolated incidents, usually provides an insufficient basis upon which to assign supervisory liability. However, as the number of incidents grows and a pattern begins to emerge, a finding of tacit authorization or reckless disregard becomes more plausible.”), with Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 567 (1st Cir. 1989) (“An inquiry into whether there has been a pattern of past abuses or official condonation thereof is only required when a plaintiff has sued a municipality. Where . . . plaintiff has brought suit against the defendants as individuals . . . plaintiff need only establish that the defendants’ acts or omissions were the product of reckless or callous indifference to his constitutional rights and that they, in fact, caused his constitutional deprivations.”).
- Iqbal, 556 U.S. at 666.
- Id. at 667.
- Id. at 668.
- Id. at 677 (referring to “a § 1983 suit or a Bivens action”).
- Id. at 668.
- Id. at 680–81 (complaint references omitted).
- 550 U.S. 544 (2007).
- Iqbal, 556 U.S. at 683.
- Id. at 677 (citing Brief for Respondent 45–46).
- Id. at 690–91 (quoting Brief for Petitioners, p. 50) (Souter, J., dissenting).
- Id. at 692 (Souter, J., dissenting) (“because of the [defendant’s] concession, we have received no briefing or argument on the proper scope of supervisory liability, much less the full-dress argument we normally require”).
- Id. at 677.
- Id. at 683.
- Id. at 693–94 (Souter, J., dissenting) (citations omitted). Justice Souter was “unsure what the general test for supervisory liability should be, and in the absence of briefing and argument [was] in no position to choose or devise one.”
- Lewis v. Tripp, 604 F.3d 1221, 1227 n.3 (10th Cir. 2010). Selected post-Iqbal circuit decisions appear below.
- Fifth Circuit: Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir. 2011) (“Under § 1983, . . . a government official can be held liable only for his own misconduct. See . . . Iqbal, [556 U.S. at 677]. Beyond his own conduct, the extent of his liability as a supervisor is similar to that of a municipality that implements an unconstitutional policy.”).
- Seventh Circuit: T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (holding, under Iqbal, Equal Protection claim against supervisor requires showing that supervisor acted with requisite discriminatory intent; although pre-Iqbal the Seventh Circuit allowed plaintiff to recover based on supervisor’s deliberate indifference, “after Iqbal a plaintiff must also show that the supervisor possessed the requisite discriminatory intent”; court also ruled that Iqbal does not foreclose due process claim against supervisor based on supervisor’s own misconduct).
- Eighth Circuit: L.L. Nelson Enters., Inc. v. Cnty. of St. Louis, 673 F.3d 799, 810 (8th Cir. 2012) (under Iqbal, when “alleged constitutional violation requires proof of an impermissible motive,. . . complaint . . . must allege” supervisor acted with “impermissible purpose, not merely that he knew of a subordinate’s motive”); Whitson v. Stone Cnty. Jail, 602 F.3d 920, 928 (8th Cir. 2010) (ruling that under Iqbal, supervisory defendants may be held liable for attack on prisoner by fellow prisoner “only if they personally displayed deliberate indifference to the risk that [plaintiff] Watson would be assaulted during the transfer of prisoners”); Nelson v. Corr. Med. Servs., 583 F.3d 522, 535 (8th Cir. 2009) (en banc) (director of State Department of Corrections could not be held liable for corrections officer’s shackling plaintiff-prisoner to hospital bed while she was giving birth, in final stages of labor; citing Iqbal, finding director could be held liable on theory of “supervisory liability” “only if he personally displayed deliberate indifference to the hazards and pain resulting from shackling an inmate such as Nelson during the final states of labor”; no evidence that director was deliberately indifferent). See also Ellis v. Houston, 742 F.3d 307, 320, 322 (8th Cir. 2014).
- Ninth Circuit: Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012) (en banc) (for supervisor to be liable for another actor’s deprivation of third-party’s constitutional rights, supervisor must have at least same level of intent as would be required if he directly violated third-party’s constitutional rights); Starr v. Baca, 652 F.3d 1202, 1206–08 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012) (interpreting Iqbal to mean that supervisor’s liability may vary depending on nature of plaintiff’s constitutional claim; reading Iqbal as holding that in discrimination case “alleging a supervisor’s mere awareness of the discriminatory effects of his or her actions or inaction does not state a claim of unconstitutional discrimination”; on the other hand, when as in this case, plaintiff-inmate asserts constitutional claim governed by deliberate-indifference standard, supervisor may be held liable for her own deliberate indifference, i.e., supervisor may be held liable based on her “knowledge of and acquiescence in unconstitutional conduct by others”). See also OSU Student Alliance v. Ray, 699 F.3d 1053, 1075 (9th Cir. 2012); Chavez v. United States, 683 F.3d 1102, 1108–12 (9th Cir. 2012).
- Tenth Circuit: Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010), cert. denied, 131 S. Ct. 2150 (2011) (holding, under Iqbal, plaintiff may establish § 1983 liability of supervisory official by showing: (1) defendant (supervisor) promulgated, created, implemented, or possessed responsibility for continued operation of policy that (2) caused the complained of constitutional harm, and (3) acted with state of mind required to establish alleged constitutional deprivation). See also Walton v. Gomez (In re Estate of Booker), 745 F.3d 405, 435–36 (10th Cir. 2014); Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 767, 771 (10th Cir. 2013).
- D.C. Circuit: Navab-Safavi v. Glassman, 637 F.3d 311, 319 (D.C. Cir. 2011) (“in actions against public officials for violation of constitutional rights, ‘officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior’”) (quoting Iqbal, 556 U.S. at 676).