FISHER, Circuit Judge.
In this appeal, we consider whether two prison administrators are entitled to qualified immunity from an Eighth Amendment claim that serious deficiencies in the provision of medical care by a private, third-party provider resulted in an inmate's suicide. We agree with the District Court that they are not. For reasons to be discussed, we will affirm.
Plaintiff-Appellees Karen Barkes, Alexandra Barkes, and Brittany Barkes (collectively, "Appellees") are the widow and children, respectively, of decedent Christopher Barkes ("Barkes").
Barkes was a troubled man with a long history of mental health and substance abuse problems. On March 15, 1997, Barkes killed two people in a car accident while driving drunk. He pleaded guilty to two counts of second-degree vehicular homicide. Seven months after the accident, on October 31, 1997, Barkes attempted suicide while incarcerated by ingesting an overdose of pills that he had apparently stockpiled. He was incarcerated at HRYCI (also known as Gander Hill Prison), the same facility at which he would eventually commit suicide in 2004.
Barkes served two and a half years in prison, during which time he completed a substance abuse program. He stayed sober for approximately four years before relapsing in December 2003. He entered the Recovery Center for Delaware on December 15, 2003, but could stay for only one week because of limited funding from his insurance provider. On December 21, 2003, police responded to a reported domestic altercation at Barkes's home. After police placed him in handcuffs, he became unconscious and unresponsive. Paramedics were called, who opened Barkes's airways, provided oxygen, and administered drugs to counteract a suspected heroin overdose. Barkes admitted — and the toxicology report in his medical records confirms — that he consumed one and a half pints of vodka and a "bag" of heroin, quantity unspecified. He later characterized this overdose as a suicide attempt.
On September 10, 2004, sixty-five days before his death, Barkes attempted to kill himself twice in one day. During an afternoon house visit by a probation officer, Barkes was found asleep on top of a bottle of gin. He appeared to be extremely intoxicated — he apparently could not recall who he was — and the officer arrested Barkes. Two hours after his arrest, Barkes had a blood alcohol content ("BAC") of .222. Because of his high BAC the officers took Barkes to a hospital, where he admitted to a nurse that he had also consumed forty Tylenol tablets. While being treated, Barkes attempted to kill himself by wrapping an IV cord around his neck. Both incidents were recorded in his probation file.
Barkes received a new probation officer shortly before his death. In notes dated November 9, 2004 — five days before he died — the officer indicated her awareness that Barkes suffered from bipolar disorder, attended one therapy session and six Alcoholics Anonymous meetings each week, and took four medications for his bipolar condition and other mental health problems. The notes also acknowledged three individuals — the record suggests that they were therapists, counselors, and/or social workers — whom Barkes was currently seeing.
Barkes was arrested on November 13, 2004 for violating his probation. At approximately 3:00 p.m. that day, he underwent a medical intake/screening procedure at HRYCI conducted by a licensed practical nurse ("LPN") who was employed by FCM, a private contractor hired to provide medical services in the prison. The intake procedure included a form containing questions about Barkes's mental health, including questions about suicidal ideation. Barkes indicated on the form that he had attempted suicide in 2003 but did not include the 1997 attempt or the two attempts in September 2004. He stated that he had no current suicidal ideation.
The intake procedure also screened for seventeen suicide risk factors. If the inmate checked eight or more factors on a form, or if certain other serious risk factors were present (for example, the arresting officer expressed concern that the inmate was a suicide risk), the on-call physician was to be notified and suicide prevention measures initiated. Barkes answered yes to two of the questions: (1) that he had a psychiatric history; and (2) that he had previously attempted suicide. The LPN completed a standard medical intake form, which included questions as to whether Barkes showed signs of "altered mental status ... or abnormal conduct." JA at 71. The LPN indicated "no" to both. Barkes also denied having a history of drug abuse. The LPN referred Barkes to mental health services on a "routine" urgency level, based on his psychiatric history and the 2003 suicide attempt.
Barkes was placed alone in a cell in the booking and receiving area. At some point during the evening of November 13, Barkes called his wife Karen. According to Karen, Barkes told her that he "can't live this way anymore," and said that he was going to kill himself. JA at 2, 72. It is undisputed that Karen did not inform the DOC of Barkes's stated intent.
Shortly before 4:00 a.m. on November 14th, in an unrelated incident, another inmate
At 8:00 a.m. on the 14th, Barkes ate breakfast alone in his cell. Correctional officers observed him lying awake on his bed at 10:45, 10:50, and 11:00 a.m., and none recalled anything unusual about him or any indication that he was suicidal. At 11:35 a.m., when an officer arrived at his cell to deliver his lunch, Barkes was hanging by a sheet from a steel partition. Medical staff responded and Barkes was taken to a hospital, but attempts to resuscitate him were unsuccessful.
FCM entered into a Health Care Services Contract with DOC on June 17, 2002, and was the contracted medical provider at HRYCI at the time of Barkes's suicide. In that role it was responsible for inmate intake and medical screening. The DOC reviewed FCM's performance in monthly Medical Review Committee ("MRC") meetings, overseen by DOC Bureau Chief of Management Services Joyce Talley. Talley was the DOC's appointed representative for administering the contract with FCM. See Del.Code Ann. tit. 11, § 6517(13) (currently codified at Del.Code Ann. tit. 11, § 6517(12)) (requiring that the Commissioner of Correction "[a]dminister[] the medical/treatment services contract, or appoint[] a designee to administer the medical/treatment contract").
As Chief of the DOC Bureau of Management Services, Talley had many responsibilities. She testified that her areas of oversight responsibility included "fiscal, payroll, budgeting, food services for the inmates, health care for the inmates, substance abuse for the inmates, management information systems, purchasing and warehousing, facilities maintenance and construction." JA at 364-65. She further testified that, in each of these areas except for health care, she relied on a "key manager [to do] the day-to-day" oversight. JA at 366. The "key manager" was an official within the DOC, but with respect to health care services Talley relied on FCM and the MRC, testifying that she did not make any assessments regarding FCM's job performance and that no individual working within the DOC "had the knowledge or the background ... [to] go out to see if the medical care was provided." JA at 367.
The contract outlined standards of care to which FCM must adhere. To the extent that the health care standards of the American Correctional Association and the National Commission on Correctional Health Care ("NCCHC") differed, FCM was to adhere to the higher standard. Taylor testified that he believed that ensuring FCM "deliver[ed] health care in accordance with NCCHC standards" was sufficient to meet his responsibility to deliver health care to the inmate population. JA at 51. Williams testified that he had a responsibility to ensure that HRYCI was in compliance with NCCHC standards, but that he believed he had no personal responsibility to ensure FCM's compliance. JA at 55. Talley also testified that she did not believe it to be her responsibility to ensure FCM's compliance with NCCHC standards. JA at 368 ("Q: Did you believe that it was your responsibility when you served in that role as bureau chief that you reviewed the compliance with the standards set forth by NCCHC? A: No.").
The 1997 NCCHC guidelines provided a number of sample intake forms covering general physical and mental health questions.
JA at 314 (emphasis in original).
The 1997 guidelines provided sample protocols to be administered by a qualified mental health professional if the inmate's intake screening triggered referral. JA at 322. The guidelines explicitly required the protocols to be administered by a mental health professional.
In deposition testimony, Appellants acknowledged that they were aware of the deteriorating quality of FCM's provision of medical services. Williams admitted that FCM's performance had degraded significantly and that he was aware FCM may not have been fulfilling its contractual obligations. JA at 792. He was aware of significant backlogs, that FCM may have been intentionally short-staffing to save money, and that inmate complaints had increased. JA at 792-93. Taylor testified that his responsibility as Commissioner of Correction was to "provide health care delivery to the offender population comparable to that available in the community." JA at 799. He acknowledged that in the period of 2003-2007 audits conducted by the NCCHC had identified deficiencies in healthcare provision in the Delaware prison system. He also suspected that FCM was intentionally leaving positions vacant in order to save money rather than simply having difficulty recruiting and retaining staff. Minutes from a meeting of the MRC on June 17, 2004, at which Williams was present, indicate ongoing problems with the DOC's document management computer system, called "DACS," including that the medical unit at HRYCI was "not putting information into DACS consistently for medical grievances." JA at 809. Talley indicated that FCM was "beyond the borderline of not being in compliance with the contract" and that the MRC would issue a letter of non-compliance at the next meeting if problems with the computer system were not resolved by then. Id. Minutes from the MRC's August 26, 2004 meeting indicate that FCM remained non-compliant with respect to implementing the DACS system, and that this issue was to be brought to Taylor's attention. In May 2005, Taylor wrote a letter to FCM indicating that the DOC would be terminating the contract, citing among his reasons "the serious deficiencies in the delivery of health care outlined in the National Commission on Correctional Health Care (NCCHC) audit report dated February 28, 2005." JA at 788.
On February 16, 2006, Appellees filed a complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the District of Delaware.
Appellees asserted against Taylor and Williams an Eighth Amendment claim based on deliberate indifference to Barkes's serious medical needs, an Eighth Amendment claim based on a failure to train/wrongful customs, practices, and policies, and a state law wrongful death claim. On February 27, 2008, the District Court granted summary judgment to Appellants. Appellees filed an appeal, see Barkes v. First Correctional Medical, Inc., No. 08-2280 (docketed May 7, 2008), which we dismissed per stipulation of the parties on July 9, 2008.
On February 27, 2012, the parties filed cross-motions for summary judgment. It was then that Appellants asserted qualified immunity in a motion for the first time.
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. The collateral order doctrine allows us to review an interlocutory order "as a `final decision' if it: `(1) conclusively determine[s] the disputed question, (2) resolve[s] an important issue completely separate from the merits of the action, and (3) [is] effectively unreviewable on appeal from a final judgment.'" Blaylock v. City of Phila., 504 F.3d 405, 408 (3d Cir.2007) (alterations in original) (quoting Johnson v. Jones, 515 U.S. 304, 310, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)). It is well-established that orders denying qualified immunity at summary judgment are reviewable under the collateral order doctrine "to the
"On an appeal from a grant or denial of summary judgment, our review is plenary and we apply the same test the district court should have utilized initially." Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). A court may grant summary judgment only when the record "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). The issue of qualified immunity is generally a question of law, but a genuine dispute of material fact will preclude summary judgment on qualified immunity. Giles, 571 F.3d at 326.
Before discussing the District Court's qualified immunity analysis, it is necessary first to consider whether and to what extent our precedent on supervisory liability in the Eighth Amendment context was altered by the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Though we have in the past declined "to wade into the muddied waters of post-Iqbal `supervisory liability,'" Bistrian v. Levi, 696 F.3d 352, 366 n. 5 (3d Cir.2012); see also Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 69-70 (3d Cir.2011), we find it appropriate to do so now.
Section 1983 provides a cause of action against "every person who," under color of state law, "subjects, or causes to be subjected," another person to a deprivation of a federally protected right. 42 U.S.C. § 1983. It is well-recognized that "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Bistrian, 696 F.3d at 366 (alteration in original) (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937). Rather, state actors are liable only for their own unconstitutional conduct. Id. With this principle in mind, we have previously identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if they, "with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm." A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989)). Second, "a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced" in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). "Failure to" claims — failure to train, failure to discipline, or, as is the case here, failure to supervise — are generally considered a subcategory of policy or practice liability. See Rosalie Berger Levinson, Who Will Supervise the Supervisors? Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates
In Sample v. Diecks, we recognized that "`supervision' entails, among other things, training, defining expected performance by promulgating rules or otherwise, monitoring adherence to performance standards, and responding to unacceptable performance whether through individualized discipline or further rulemaking." 885 F.2d 1099, 1116 (3d Cir.1989). Sample involved an Eighth Amendment claim against a supervisor for implementing deficient policies and being deliberately indifferent to the risk that the policies would result in the deprivation of a constitutional right. Id.; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 133-34 (3d Cir.2001) (discussing Sample). We developed a four-part test for determining whether an official may be held liable on a claim for a failure to supervise. The plaintiff must identify a supervisory policy or practice that the supervisor failed to employ, and then prove that: (1) the policy or procedures in effect at the time of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory practice or procedure. Sample, 885 F.2d at 1118; Brown v. Muhlenbery Twp., 269 F.3d 205 (3d Cir.2001). In this Circuit, when a plaintiff seeks to hold a defendant liable under the Eighth Amendment in his or her role as a supervisor, "Sample's four-part test provides the analytical structure ..., it being simply the deliberate indifference test applied to the specific situation of a policymaker." Whetzel, 256 F.3d at 135.
Which brings us to Iqbal. Javaid Iqbal sued United States Attorney General John Ashcroft and FBI Director Robert Mueller, high-level Executive Branch officials, under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Court "`recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.'" Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 (quoting Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)). Iqbal alleged that he was unlawfully detained and subjected to harsh conditions of confinement on the basis of his race, religion, or national origin, as part of a purposefully discriminatory policy of which Ashcroft was the "principal architect" and Mueller was "instrumental" in executing. Id. at 669, 129 S.Ct. 1937. Iqbal's theory of supervisory liability was that Ashcroft and Mueller could be liable if they had "knowledge [of] and [had] acquiesce[ed] in their subordinates' use of discriminatory criteria to make classification decisions among detainees." Id. at 677, 129 S.Ct. 1937 (internal citation and quotation marks omitted).
In rejecting Iqbal's claim, the Supreme Court first recognized that "[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue." Id. at 676, 129 S.Ct. 1937. The claim presented in Iqbal — discrimination in violation of the First and Fifth Amendments — requires that the plaintiff prove that the defendant acted with a discriminatory purpose, and "purposeful discrimination requires more than `intent as volition or intent as awareness of consequences.'" Id. (quoting Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), and citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-41, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976)). The Court reasoned
This aspect of Iqbal has bedeviled the Courts of Appeals to have considered it, producing varied interpretations of its effect on supervisory liability. The dissenters in Iqbal believed the majority to be abolishing supervisory liability in its entirety, 556 U.S. at 692-93, 129 S.Ct. 1937 (Souter, J., dissenting), and at least one Court of Appeals impliedly confirmed this view, albeit without much in the way of discussion, see Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir.2011).
Most courts have gravitated to the center, recognizing that because the state of mind necessary to establish a § 1983 or Bivens claim varies with the constitutional provision at issue, so too does the state of mind necessary to trigger liability in a supervisory capacity. The Tenth Circuit, for example, held that, after Iqbal, § 1983 liability may attach to "a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of
The Seventh Circuit has also indicated that the mental state required to impose supervisory liability will vary with the underlying constitutional tort. In T.E. v. Grindle, the Seventh Circuit held that a school principal could be liable under § 1983 for allowing a subordinate teacher to continue working despite numerous allegations that the teacher was sexually abusing his female students. 599 F.3d 583, 585-87 (7th Cir.2010). The plaintiff alleged supervisory liability that derived from both substantive due process and equal protection violations. The Court recognized that Iqbal had abrogated its prior precedent allowing plaintiffs to recover from a supervisor who was deliberately indifferent toward a subordinate's purposeful discrimination, because in a discrimination claim Iqbal requires that "a plaintiff must show that the supervisor possessed... discriminatory intent." Id. But this was not so with respect to the substantive due process claim, for which the Court held that "[w]hen a state actor's deliberate indifference deprives someone of his or her protected liberty interest ..., that actor violates the Constitution, regardless of whether the actor is a supervisor or subordinate." Id. at 591. The Court thus recognized that the mental state necessary for supervisory liability tracks with the mental state required for the underlying tort. See also Vance v. Rumsfeld, 701 F.3d 193, 204 (7th Cir.2012) (en banc).
We do not read Iqbal to have abolished supervisory liability in its entirety. Rather, we agree with those courts that have held that, under Iqbal, the level of intent necessary to establish supervisory liability will vary with the underlying constitutional tort alleged. In this case, the underlying tort is the denial of adequate medical care in violation of the Eighth Amendment's prohibition on cruel and unusual punishment, and the accompanying mental state is subjective deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Iqbal held that state officials are liable only for their own unconstitutional actions. The essence of the type of
Our dissenting colleague disagrees with our conclusion that Sample has survived Iqbal. In his view, a supervisor can be held liable under the Eighth Amendment only if he committed an affirmative "action[]," was "personal[ly] involve[d] in his subordinates' misfeasance," and acted with "intentional ... deliberate indifference." Dis. Op. at 336, 340 (internal quotation marks omitted). Our colleague claims that his position recognizes that "there's no special rule of liability for supervisors" and that "the test for them is the same as the test for everyone else." Id. at 342 (internal quotation marks omitted) (quoting Porro v. Barnes, 624 F.3d 1322, 1327-28 (10th Cir.2010)). But in fact the opposite is true: his test would immunize from liability prison officials who were deliberately indifferent to a substantial risk that inmates' serious medical conditions were being mistreated or not treated at all. This would subvert the Supreme Court's command that any prison official who, "acting with deliberate indifference, expose[s] a prisoner to a sufficiently substantial risk of serious damage to his future health," violates the Eighth Amendment. Farmer, 511 U.S. at 844, 114 S.Ct. 1970 (internal quotation marks and citations omitted). Simply because an official may have a senior position in the DOC does not make him free to ignore substantial dangers to inmate health and safety. Id. at 842, 114 S.Ct. 1970; Grindle, 599 F.3d at 590 ("When a state actor's deliberate indifference deprives someone of his or her protected liberty interest in bodily integrity, that actor violates the Constitution, regardless of whether the actor is a supervisor or subordinate, and the actor may be held liable for the resulting harm.").
Treating supervisors and subordinates equally under the Eighth Amendment does not mean ignoring the different ways in which each type of officer can, with deliberate indifference, expose inmates to constitutional injury. We think our dissenting colleague fails to recognize this fact, and in doing so makes three significant analytical errors. We address each below.
First, the Dissent claims that for a supervisor to be liable under § 1983, he must have taken a "deliberate, intentional act... to violate the plaintiff's legal rights." Dis. Op. at 338 (quoting Porro, 624 F.3d at 1327-28). The Dissent draws this principle primarily from the Tenth Circuit's opinion in Porro, which we have cited with approval for its discussion of the mental
The Dissent's position neglects the black-letter principle that the type of Eighth Amendment claim alleged here can be shown by an act or an omission. See Farmer, 511 U.S. at 835, 114 S.Ct. 1970 ("[T]he cases are ... clear that [the deliberate indifference standard] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result" (emphasis added)); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ("In order to state a cognizable claim [under the Eighth Amendment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." (emphasis added)). What the Dissent attempts to do is shoehorn into the Eighth Amendment the deliberate-act requirement adopted in our state-created-danger jurisprudence. In that context, we have held that "[l]iability... [must be] predicated upon the states' affirmative acts which work to the plaintiff's detriment in terms of exposure to danger. It is the misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir.2008) (third alteration added; emphasis in original) (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d Cir.2006)).
Id. at 280-81 (alteration in original) (quoting DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998). The Dissent cites Grindle in support of its claim that an affirmative act is required, and he is correct that this case upheld a supervisory liability claim for substantive due process deliberate indifference that was predicated upon an official's attempt to "conceal[] reports of abuse and creat[e] an atmosphere that allowed abuse to flourish." 599 F.3d at 590. Certainly, an affirmative act such as concealment of wrongdoing could satisfy the deliberate indifference standard, but it is not necessary. Under the Eighth Amendment, prison officials, from the bottom up, may be liable if by act or omission they display a deliberate indifference to a known risk of substantial harm to an inmate's health or safety. Farmer, 511 U.S. at 843, 114 S.Ct. 1970. The omission alleged here is the deliberately indifferent failure to enforce FCM's compliance with proper suicide-prevention protocols, as required under FCM's contract with the DOC. As we will discuss, there is a material factual dispute on this point.
The Dissent would require both that the supervisor "personally display[ed] deliberate indifference," Dis. Op. at 340 (internal citation and quotation marks omitted), and that the supervisor was "personal[ly] involve[d] in his subordinates' misfeasance," id. at 336. With respect to the former observation, we agree, which is why our decision requires subjective deliberate indifference on the part of the offending officer. See Part III.A.1, supra. With respect to the latter, the Dissent misinterprets the rules for Eighth Amendment liability under Farmer.
The Dissent asserts that, by affirming Sample's vitality post-Iqbal, our decision wrongly applies an objective, rather than a subjective, test for evaluating deliberate indifference, in contravention of Farmer. This criticism is unpersuasive for two reasons. First, the premise upon which the Dissent's argument rests — that "Sample's objective quality is patent," see Dis. Op. at 341 — is far from clear. Sample expressly constructed its test for deliberate indifference around what the officer knew and how the officer reacted to that knowledge. Sample, 885 F.2d at 1118 (asking whether the officer "was aware that this unreasonable risk existed" and whether that officer "was indifferent to that risk" (emphasis added)). This is clearly a subjective test as required by Farmer, a conclusion bolstered by our recitation of the Sample test in Brown, a case that post-dates Farmer and yet approves Sample. See Brown, 269 F.3d at 216. Far from being patently objective, Sample's test is explicitly concerned with the officer's subjective knowledge.
The origin of the Dissent's discontent may be Sample's reference to City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). In City of Canton, the Supreme Court held that a municipality "can be liable for failure to train its employees when the municipality's failure shows `a deliberate indifference to the rights of its inhabitants.'" Farmer, 511
The Dissent cites a passage of Sample in which we said that "there are situations in which the risk of constitutionally cognizable harm is so great and so obvious that the risk and the failure of supervisory officials to respond will alone support findings of the existence of an unreasonable risk, of knowledge of that unreasonable risk, and of indifference to it." 885 F.2d at 1118; Dis. Op. at 342. In fairness to our colleague, one could read this as suggesting that an objective test might be applicable in situations where evidence of the officer's knowledge and intent was absent. But one could also read this statement as recognizing that the requisite mental state can be proved by circumstantial evidence. Cf. Farmer, 511 U.S. at 842, 114 S.Ct. 1970 ("Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." (emphasis added)).
At any rate, this brings us to the second reason that the Dissent's objection fails: the test that we derive from Sample and apply in this case cannot be described as anything but subjective, and is thus entirely consistent with Farmer. Moreover, the Dissent's statement that the District Court has already determined that "`a reasonable factfinder could not determine that Defendants were deliberately indifferent to the risk of suicide,'" Dis. Op. at 341 (quoting JA at 15), is a red herring because that determination was made in reference to Count I of the third amended complaint, which alleged that Appellants were deliberately indifferent to Barkes's serious medical needs as an individual. That is a very different claim than the supervisory liability claim contained in Count V and that we are allowing to proceed. To the extent that Sample approved, in some circumstances, an objective test for determining a prison official's Eighth Amendment deliberate indifference, that portion of Sample has been abrogated by Farmer and it is not the test we apply today.
Recognizing that our test does, in fact, require an official's subjective deliberate indifference, the Dissent pivots and claims that the plaintiff must nonetheless plead that the supervisor was "personal[ly] involve[d] in his subordinates' misfeasance." Dis. Op. at 336. The Dissent's rule would have the practical effect of requiring that a supervisor have personal knowledge of an individual inmate, that inmate's particular serious medical need, and of the prison staff's failure to treat that need, before the supervisor could ever be held liable for deliberate indifference. But Farmer itself recognized that a prison official cannot avoid liability under the Eighth Amendment simply "by showing that, while he was aware of an obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to" suffer a constitutional injury. 511 U.S. at 843, 114 S.Ct. 1970.
Id. at 843-44, 114 S.Ct. 1970 (internal citations omitted) (quoting Helling v. McKinney, 509 U.S. 25, 33, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Hutto v. Finney, 437 U.S. 678, 681-82 n. 3, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). A high-ranking prison official can expose an inmate to danger by failing to correct serious known deficiencies in the provision of medical care to the inmate population. That the official had no specific knowledge of any particular inmate or the failure of subordinate officials to treat that inmate's serious medical condition is irrelevant.
The Dissent suggests that Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir.2009) (en banc), contradicts our analysis, but in fact that case supports our position. There, an inmate sued a guard and a prison director under the Eighth Amendment because her legs had been shackled during labor, causing her injury. Id. at 525-27. She alleged that the prison director had violated her rights "by failing to ensure that proper policies and customs were implemented with respect to the restraint of female inmates in labor." Id. at 534-35. The Eighth Circuit stated that the director could be liable "if he personally displayed deliberate indifference to the hazards and pain resulting from shackling an inmate such as [the plaintiff] during the final stages of labor."
What the Dissent fundamentally fails to recognize is that there are different ways that prison officials can be responsible for causing an inmate harm. Dissenting in Vance, Judge Hamilton adroitly provided the following hypothetical:
Vance, 701 F.3d at 223 (Hamilton, J., dissenting). No less here, where there is evidence of serious inadequacies in the provision of adequate medical care for inmates, and there is evidence that prison officials were aware of the problem and yet indifferent to the risk that an inmate would suffer a constitutional injury, they can be held liable under § 1983 for violating the Eighth Amendment
Our final point of disagreement with the Dissent is in his articulation of the deliberate indifference standard itself. The Dissent claims that we err in failing to apply an "intentional version of deliberate indifference." Dis. Op. at 340. But his formulation of deliberate indifference is entirely inconsistent with Supreme Court precedent.
We derive the test for establishing Eighth Amendment deliberate indifference from Sample and from the Supreme Court's decision in Farmer. While the Dissent is correct that Appellees do not allege that Appellants took an intentional act to cause inadequate medical care for inmates, this is a straw-man argument because under Farmer they are not required to make that allegation. Farmer stated that although "deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." 511 U.S. at 835, 114 S.Ct. 1970. Deliberate indifference falls "somewhere between the poles of negligence at one end and purpose or knowledge at the other." Id. at 836, 114 S.Ct. 1970. "[A]n Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." As we will discuss infra, there remains a genuine dispute of material fact over whether Appellants displayed deliberate indifference under this standard.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, ___ U.S. ___,
A right is "clearly established" if, at the time of the alleged deprivation, "`[t]he contours of [the] right [are] sufficiently clear' that every `reasonable official would have understood that what he is doing violates that right.'" al-Kidd, 131 S.Ct. at 2083 (second alteration in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). Crucial to the "clearly established" inquiry is the level of generality at which the right is defined. A constitutional right is not "clearly established simply because of the existence of a broad imperative like the one against `unreasonable ... seizures,'" Schneyder v. Smith, 653 F.3d 313, 329 (3d Cir.2011), but nor must there be "a case directly on point [if] existing precedent ... [has] placed the statutory or constitutional question beyond debate," al-Kidd, 131 S.Ct. at 2083 (citing Anderson, 483 U.S. at 640, 107 S.Ct. 3034). Rather, the asserted right must be sufficiently bounded that it gives "practical guidance" to officials on the ground. See John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 Fla. L.Rev. 851, 854 (2010). Put another way, the right asserted cannot be so abstract that any transgression violates a clearly established right, thereby evaporating "the balance ... between the interests in vindication of citizens' constitutional rights and in public officials' effective performance of their duties." Anderson, 483 U.S. at 639, 107 S.Ct. 3034 (internal quotation marks omitted) (quoting Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984)). The "ultimate question" in the qualified immunity analysis "is whether the defendant had `"fair warning" that his conduct deprived his victim of a constitutional right.'" Schneyder, 653 F.3d at 329 (quoting Hope v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).
The "clearly established" game is won or lost on how broadly or narrowly one defines the right at issue. Appellants attempt to atomize the asserted right into oblivion by defining it narrowly as an inmate's right to "supervision of the medical vendor by the prison administrators," for which they assert that "[t]here is no case law establishing that a government entity is responsible for monitoring a medical provider under Section 1983." Appellants' Br. at 19. There are two problems with this characterization. First, its myopia runs directly contrary to the Supreme Court's oft-repeated admonition that "a case directly on point" is not required for a right to be clearly established. See al-Kidd, 131 S.Ct. at 2083. Second, this argument hinges entirely on the outsourcing of prison medical care to a private, third-party provider. Appellants do not argue that they have no responsibility to supervise state-employed correctional staff such as guards, or that they would have no responsibility to supervise the medical staff were it composed of state employees rather than private contractors. Rather, their argument depends entirely on the Court finding that there is a difference of constitutional import between the two. No reasonable prison administrator could believe that hiring a private contractor to
Even if we were to accept the manner in which Appellants would particularize the asserted right, they have nonetheless failed to show a lack of clarity in the law. They rely on our decision in Spruill v. Gillis, in which an inmate in a Pennsylvania prison brought a § 1983 claim against, among other individuals, the Unit Manager of the Restricted Housing Unit, alleging that as a result of his deliberate indifference the plaintiff was injured by an untreated or inadequately treated back problem. 372 F.3d 218, 222 (3d Cir.2004). In affirming dismissal of the complaint against the non-medical official for failure to state a claim, we held:
Id. at 236.
Appellants rely on this language to argue that, at the time of Barkes's suicide, it was not clearly established that they, as non-medical prison administrators, had a constitutional supervisory duty over the medical staff. But in the very next line of Spruill we stated that "absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official ... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference." Id. Dismissal was proper in Spruill because the plaintiff had failed to plead facts suggesting that the official was aware of the alleged inadequacies in medical care, not because prison administrators are categorically exempt from a supervisory role over medical personnel. Id. at 236-37 & n. 12. And moreover, there is nothing in Spruill supporting Appellants' contention that there is a difference of constitutional import between state-employed and privately contracted medical staff. Appellants' argument that the law was hazy with respect to their supervisory duty over prison medical staff is thus belied by the very case upon which they rely. See Appellants' Br. at 20 (conceding that Spruill was "[t]he clearly established" law at the pertinent time).
With that said, we think that the right Appellees assert, properly defined, is this: an incarcerated person's right to the proper implementation of adequate suicide prevention protocols.
At the time of Barkes's suicide, we had long recognized that an inmate's "particular vulnerability to suicide" is a serious medical need that prison officials may not recklessly disregard. Colburn v. Upper Darby Twp., 838 F.2d 663, 669 (3d Cir. 1988) (Colburn I), abrogated on other grounds by Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). In Colburn I, we examined for the first time whether a prisoner's suicide can give rise to liability under § 1983. We began by examining cases in which the plaintiff was the victim of violence by persons other than the defendant-officials, and drew from that precedent the conclusion that "where prison officials infringed a liberty interest by intentional conduct, gross negligence, or reckless indifference, or an established state procedure, the matter is actionable under section 1983." Id. at 667-68 (citing Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir.1987); Davidson v. O'Lone, 752 F.2d 817 (3d Cir.1984) (en banc), aff'd sub nom. Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986)). We saw "no reason not to apply a similar construction of section 1983 when the acts causing the injury are those of the prisoner herself." Id. at 668.
We drew additional guidance from the Supreme Court's decision in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). See Colburn I, 838 F.2d at 668-69. In Hudson, the Supreme Court approved of searches of inmates and their cells to discover contraband in order to not only prevent violence against correctional staff and other prisoners but also to prevent suicides. Hudson, 468 U.S. at 526, 104 S.Ct. 3194 (recognizing that suicide was a significant concern in correctional institutions). Finding particular significance in "the [Hudson] Court's statement that prison administrators `are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves,'" Colburn I, 838 F.2d at 668 (quoting Hudson, 468 U.S. at 526, 104 S.Ct. 3194), we held that when custodial officials "know or should know of the particular vulnerability to suicide of an inmate, then the Fourteenth Amendment imposes on them an obligation not to act with reckless indifference to that vulnerability," id. at 669.
This body of precedent places it "beyond debate," al-Kidd, 131 S.Ct. at 2083, that appropriate suicide-preventive measures are a required component of the Constitution's command that prison administrators provide adequate mental and physical health care for inmates. Our decision in Spruill gives "fair warning," Schneyder, 653 F.3d at 329, that non-medical prison officials may "be chargeable with the Eighth Amendment scienter requirement of deliberate indifference" when they possess actual knowledge or have reason to believe that prison medical staff are mistreating or failing to treat inmates' serious medical conditions. Spruill, 372 F.3d at 236. Accordingly, we hold that the right Appellees assert — an incarcerated person's right to the proper implementation of adequate suicide prevention protocols — was clearly established at the time of Barkes's suicide.
The first prong of the qualified immunity analysis (though we address it second here) asks whether the plaintiff suffered a deprivation of a constitutional or statutory right. A finding of qualified immunity grants immunity not only from liability, but from the burdens of litigation itself.
As we noted previously, Sample's four-part test provides the rubric for evaluating whether supervisors are liable under § 1983 for deliberate indifference. See Whetzel, 256 F.3d at 134-35. To hold a supervisor liable for such an Eighth Amendment violation, the plaintiff must identify a supervisory policy or procedure that the supervisor defendant failed to implement, and prove that: (1) the policy or procedures in effect at the time of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory procedure. Brown, 269 F.3d at 216 (discussing Sample). The District Court found that disputed factual issues existed as to each of these four elements. We agree with its analysis.
Appellees claim that Taylor and Williams should have enforced FCM's compliance with their contractual obligations, specifically by requiring FCM to adhere to up-to-date NCCHC standards, by properly administering the standards to which they adhered, and by requiring mental health screenings to have been conducted by a qualified mental health professional rather than an unqualified LPN, thus satisfying Sample's threshold requirement.
Appellants stated in deposition testimony that they knew that the quality of FCM's provision of medical services was degrading, with both Appellants acknowledging awareness of intentional short-staffing and Williams acknowledging awareness of FCM's contractual non-compliance with respect to implementing the document management computer system. Taylor's termination letter to FCM indicates his awareness of FCM's gross contractual non-compliance. A reasonable juror could draw from that evidence the conclusion that Appellants were aware of an unreasonable risk that FCM's declining performance would result in a failure to treat or a mistreatment of an inmate's serious medical condition. A reasonable juror could also conclude that, by failing to enforce FCM's compliance with NCCHC standards as required by their contract, Appellants were deliberately indifferent to the risk that FCM's flagging quality would result in a violation of an inmate's constitutional rights.
Based on our review of the summary judgment record, we conclude that there remain sufficient factual disputes to preclude a finding that Appellants are entitled to qualified immunity.
For the reasons that we have discussed, Appellants are not entitled to qualified immunity. Accordingly, we will affirm the District Court's order and remand for trial.
HARDIMAN, Circuit Judge.
Today the Court holds that two of the most senior executives in the Delaware prison system must stand trial for the suicide of Christopher Barkes. In my view, this decision is a classic case of holding supervisors vicariously liable, a practice the Supreme Court proscribed in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The majority accomplishes this feat by attempting to salvage the supervisory liability doctrine we created twenty years before Iqbal in Sample v. Diecks, 885 F.2d 1099 (3d Cir.1989). As I shall explain, Sample has been abrogated by Iqbal. And even assuming I am wrong about Sample's abrogation, Defendants Taylor and Williams are still entitled to summary judgment because Barkes has not complied with Sample's requirement that she identify a specific supervisory practice or procedure that they failed to employ. I respectfully dissent.
Christopher Barkes arrived at the HRYCI around 2:45 p.m. on Saturday, November 13, 2004, following his arrest by Wilmington Police for a probation violation. Normally, Barkes would have been taken promptly to the Violation of Probation Center in Sussex County. Because it was the weekend, however, the HRYCI held him as a courtesy because the DOC's transportation department ran only on weekdays. The HRYCI booked and processed Barkes as it would any other inmate, but did not admit him; rather, it held him in the booking and receiving area.
As part of Barkes's intake, the DOC's medical services contractor, First Correctional Medical, Inc. (FCM), conducted a standard medical screening. In doing so, FCM gathered Barkes's medical history and checked his vitals and physical health. FCM also administered a mental health screening intended to, inter alia, prevent suicides. FCM's suicide prevention screening test listed seventeen risk factors. Some of those factors automatically triggered suicide protection measures. For example, if an inmate appeared to be under the influence of alcohol or drugs and showed signs of withdrawal or mental illness, FCM would immediately initiate its
A licensed practical nurse employed by FCM conducted Barkes's medical screening about fifteen minutes after his arrival. At that time, he did not appear depressed, anxious, afraid, or angry, and the arresting officers did not believe Barkes was a suicide risk. Barkes told the nurse that he was not thinking about killing himself. Barkes did admit to a prior suicide attempt in 2003, but he failed to disclose three other suicide attempts, one of which was just two months prior to his booking at HRYCI. Based on Barkes's responses during the screening, only two of the seventeen suicide risk factors were indicated: a psychiatric history and a suicide attempt.
The HRYCI correctional staff monitored Barkes throughout Saturday night and Sunday morning. Officers delivered Barkes his breakfast at 8:00 a.m. He was lying awake on his bed when officers observed him at 10:45 a.m., 10:50 a.m., and 11:00 a.m. Sometime between 11:00 a.m. and 11:35 a.m. when they next checked on him, Barkes hanged himself. Officers immediately called FCM staff, who attempted to resuscitate Barkes.
None of the officers watching Barkes noticed anything unusual about him.
The claim at issue — that Barkes was subjected to cruel and unusual punishment in violation of the Eighth Amendment — is premised on the provision of constitutionally inadequate medical care by FCM. Specifically, Barkes challenges the adequacy of the supervision of FCM's medical staff at the HRYCI. Dr. Tammy Kastre, the President and CEO of FCM, supervised FCM's medical staff at all of Delaware's correctional facilities. The DOC's Bureau of Management Services supervised FCM and Dr. Kastre. The head of that bureau, Joyce Talley, was the DOC's liaison to FCM.
It is important to note that the liability of none of the persons or entities just mentioned is at issue in this appeal. Instead, Barkes seeks to hold two DOC executives liable: Commissioner Stanley Taylor (Talley's supervisor) and HRYCI Warden Raphael Williams (who was outside the chain of supervision over FCM).
When Barkes's widow filed this lawsuit
Several months after granting Taylor and Williams summary judgment, the District Court granted Barkes leave to file an amended complaint. The Court dismissed that first amended complaint for reprising the claims dismissed on summary judgment. Barkes filed a second amended complaint, which was dismissed for failure to state a claim.
In 2010, following the retirement of Judge Farnan, Barkes's case was reassigned to the Honorable Leonard Stark. Barkes filed a third amended complaint that again sought to hold Taylor and Williams liable under a theory of supervisory liability. Having already suffered a summary judgment on the claim that Taylor and Williams failed to supervise employees of the DOC, Barkes shifted gears to argue that they failed to supervise FCM. Once again, Taylor and Williams sought summary judgment, asserting qualified immunity for the first time. Barkes also filed a motion for summary judgment.
Before deciding the parties' summary judgment motions, Judge Stark addressed Barkes's separate motion to vacate the 2006 summary judgment and revive the Eighth Amendment and supervisory liability claims upon which Taylor and Williams had prevailed in 2006 before Judge Farnan. With respect to Barkes's Eighth Amendment claim, the District Court held:
App. at 15. The District Court also upheld the 2006 summary judgment on Barkes's supervisory liability claim for failure to supervise DOC personnel and failure to institute appropriate suicide prevention policies, concluding: "even assuming that the existing policy created an unreasonable risk of Eighth Amendment injury, there is still not sufficient evidence in the record from which a reasonable factfinder would conclude that Defendants were aware such an unreasonable risk was created and were indifferent to that risk." App. at 16.
After upholding the 2006 summary judgment for want of evidence that Taylor and Williams were aware of and indifferent to an unreasonable risk of suicide, the District Court denied their motion for summary judgment on Barkes's claim that they failed to supervise FCM. In doing so, as the majority implicitly acknowledges, see Maj. Typescript at 317, the District Court erred in its application of Sample by failing to require Barkes to "identif[y] ... a specific supervisory practice or procedure that [the supervisor] failed to employ." Sample, 885 F.2d at 1118. That is a significant oversight, as this was the decisive element for Judge Farnan in deciding the earlier supervisory liability claim. Taylor and Williams now appeal that ruling, claiming qualified immunity because Barkes did not allege a legally cognizable supervisory liability claim against them and that such a right was not clearly established.
I begin with the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which altered the legal landscape regarding supervisory
Since Iqbal, supervisory liability claims must spring from "actions" or "misconduct," Iqbal, 556 U.S. at 676, 677, 129 S.Ct. 1937; the mere fact that the supervisor occupied a position of authority is insufficient. Accordingly, the overwhelming weight of authority requires plaintiffs to establish the supervisor's personal involvement in his subordinates' misfeasance. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.2012) (en banc); Carnaby v. City of Houston, 636 F.3d 183, 189 (5th Cir.2011); Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010); Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th Cir.2009) (en banc). But see Starr v. Baca, 652 F.3d 1202 (9th Cir.2011) (upholding failure to supervise claim when supervisor was not personally involved, but bore statutory responsibility for plaintiff's injury). The courts of appeals requiring the supervisor's personal involvement — i.e., the Fifth, Seventh, Eighth, and Tenth Circuits — have upheld supervisory liability claims when the challenged policy originates with the supervisor or he contributes to its unlawfulness. See, e.g., Dodds v. Richardson, 614 F.3d 1185, 1190 (10th Cir. 2010) (challenging sheriff's accession to unlawful policy of denying bond after hours); T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010) (challenging school principal's active concealment of abuse reports). None of those courts of appeals has upheld a so-called "failure-to" claim, in which subordinates violate the law while the supervisor fails to take remedial action.
Decisions of both the Seventh and Tenth Circuits illustrate the fundamental dichotomy between cases involving the supervisors' personal involvement on the one hand and those relying on the supervisor's position of authority. For example, the Seventh Circuit upheld a supervisory liability claim in T.E. v. Grindle, 599 F.3d 583 (7th Cir.2010), when the plaintiffs "allege[d] that [the principal was] liable for actively concealing reports of abuse and creating an atmosphere that allowed abuse to flourish. In other words, they argue[d] that [the principal's] own actions deprived them of their constitutional right." Grindle, 599 F.3d at 590 (emphasis added).
Two years after Grindle was decided, the Seventh Circuit, sitting en banc, confronted a failure-to-supervise claim in Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc). Vance sued Secretary of Defense Donald Rumsfeld, alleging that "[Secretary Rumsfeld] received reports that his subordinates sometimes [unlawfully] used [harsh interrogation] techniques... and ... he did not do enough to bring interrogators under control." Id. at 203. The Seventh Circuit recognized that after Iqbal, "[t]he supervisor can be liable only if he wants the unconstitutional or illegal conduct to occur." Id. For Vance's deliberate indifference claim, that meant he "would need to allege that Rumsfeld knew of a substantial risk to security contractors' employees, and ignored that risk because he wanted plaintiffs (or similarly situated persons) to be harmed." Id. at 204. This was because, absent that showing, supervisory liability claims become claims for vicarious liability. Id. "The head of any large bureaucracy receives reports of misconduct.... But heads of organizations have never been held liable on the theory that they did not do enough to combat subordinates' misconduct, and the Supreme Court made it clear in Iqbal that such theories of liability are unavailing." Id. at 204-05. For these reasons, the Seventh Circuit granted Secretary Rumsfeld qualified immunity.
Like the Seventh Circuit's decision in Grindle, the Tenth Circuit's decision in Dodds v. Richardson, 614 F.3d 1185 (10th Cir.2010), did not involve a "failure-to" claim. That case involved a sheriff who violated a state law requiring sheriffs to accept bonds for "persons jailed at times other than the normal working hours." Id. at 1190. The sheriff acceded to a county clerk's non-binding policy of forbidding persons charged with felonies from posting bond after hours. Id. The Tenth Circuit held that Iqbal limited section 1983 liability to "defendants whose own individual actions cause a constitutional deprivation because it requires plaintiffs prove each defendant took some act with the constitutionally applicable state of mind that caused the alleged constitutional violation." Id. at 1200 (emphasis added). It upheld the claim because the plaintiff "presented
Unlike the direct involvement alleged in Dodds, the Tenth Circuit was presented with a failure-to-supervise claim in Porro v. Barnes, 624 F.3d 1322 (10th Cir.2010). There, an inmate who was tasered three times by correctional officers brought a supervisory liability action against the county sheriff. Id. at 1324-25. The sheriff did not approve the tasering and was not present when it occurred. Id. at 1327. Consistent with Dodds, the Tenth Circuit held that "[t]o establish a violation of § 1983 by a supervisor, as with everyone else, then, the plaintiff must establish a deliberate, intentional act on the part of the defendant to violate the plaintiff's legal rights." Id. at 1327-28 (quotations and alterations omitted) (emphasis added); see also Dodds, 614 F.3d at 1195 ("[T]he plaintiff must establish a deliberate, intentional act by the supervisor to violate constitutional rights."). The court rejected the claim against the sheriff "because there [was] no evidence of his direct personal responsibility for the force used." Id. at 1326 (emphasis in original).
Like the Seventh and Tenth Circuits, the Fifth and Eighth Circuits have rejected similar "failure-to" claims after Iqbal. In Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir.2009) (en banc), a prison guard shackled the plaintiff's legs during labor, causing permanent injuries while she gave birth. The plaintiff sued the director of the Arkansas Department of Correction, for "[failure] to ensure that proper policies and customs were implemented with respect to the restraint of female inmates in labor." Id. at 527. Sitting en banc, the Eighth Circuit held that under Iqbal a supervisor is "liable only if he personally displayed deliberate indifference to the hazards and pain resulting from shackling an inmate such as [Plaintiff] during the final stages of labor." Id. at 535 (emphasis added).
The Ninth Circuit's decision in al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir.2009), overruled on other grounds, ___ U.S. ___, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011), aligns with these authorities. In that case, the government detained the plaintiff under the authority of the federal material witness statute and held him for suspected terrorist activity. The plaintiff brought a supervisory liability action against Attorney General John Ashcroft alleging two violations of the law. First, that Ashcroft "purposefully used the material witness statute" to unlawfully detain persons and that Ashcroft "designed and implemented" this policy. Id. at 957, 976.
Barkes's allegations are inadequate under any of our sister circuits' interpretations of Iqbal. Barkes argues that FCM acted unlawfully in providing medical care at the HRYCI, and she would hold Taylor and Williams liable because they allegedly knew that FCM provided constitutionally inadequate medical care and failed to cure FCM's deficiencies. But nothing in the pleadings alleges that Taylor and Williams "personally displayed deliberate indifference," Nelson, 583 F.3d at 535, committed a "deliberate, intentional act," Porro, 624 F.3d at 1327-28; Dodds, 614 F.3d at 1195, or "wanted plaintiffs (or similarly situated
Barkes's claim fails even under the Ninth Circuit's approach in Starr. That opinion applied a pure deliberate indifference standard without a personal involvement requirement. Unlike in Starr, here no statute holds either Commissioner Taylor or Warden Williams "answerable" for medical care in Delaware prisons. In fact, a Delaware statute does the opposite insofar as it empowered Taylor to appoint a designee to administer the medical services contract. See Del.Code tit. 11, § 6517(12). He did just that, charging the DOC's bureau of management services with this duty. And as for Warden Williams, Barkes's claim is completely unsupported because he had no supervisory authority over FCM. FCM "answer[ed]" to Talley, but not to Taylor or Williams. See Starr, 652 F.3d at 1208. Barkes might have a cognizable supervisory liability suit against Talley under Starr, but not against two senior executives who did not supervise FCM. Unsurprisingly, when both Judges Farnan and Stark viewed Barkes's allegations through a pure deliberate indifference lens, they too concluded that "a reasonable factfinder could not determine that Defendants were deliberately indifferent to the risk of suicide." App. at 15, 82-82.
In light of Iqbal, we must also overrule the framework we adopted for supervisory liability claims in Sample v. Diecks, 885 F.2d 1099 (3d Cir.1989). The absence of deliberate indifference has not proven fatal to Barkes's claim because the majority has determined that Barkes's claim should be measured not by a pure deliberate indifference standard but by Sample, which enunciated a test unique to the supervisory context. The majority upholds Sample, noting that our old supervisory liability test already required the plaintiff to show deliberate indifference. Maj. Typescript at 23-24. True though that statement is, it fails to recognize that Sample's version of deliberate indifference differs markedly from the subjective version of deliberate indifference required under the Eighth Amendment and omits the personal involvement requirement that all but one of our sister circuits have required. First, Sample does not require the supervisor's actual knowledge. Its version of deliberate indifference is objective, Sample, 885 F.2d at 1118, meaning that a plaintiff could establish deliberate indifference by establishing that the supervisor should have known of the excessive risk to inmate health and safety even if the plaintiff admits the supervisor actually had no such awareness.
Sample's objective quality is patent, insofar as it fashioned a test based on the objective deliberate-indifference standard that the Supreme Court established for municipal liability in City of Canton v.
Id. The majority admits that this part of the test we expressed in Sample is untenable today. Maj. Typescript at 323-24. Nevertheless, after denuding Sample of its objective quality, the majority upholds a test that does not require the plaintiff to plead personal involvement by the supervisor. Under Sample, the plaintiff need only establish a "supervisory practice or procedure that [the supervisor] failed to employ." Sample, 885 F.2d at 1118. That is a far cry from the "personally displayed deliberate indifference," Nelson, 583 F.3d at 535, or "deliberate, intentional act," Porro, 624 F.3d at 1327-28; Dodds, 614 F.3d at 1195, that our sister circuits have required after Iqbal.
"Simply put, there's no special rule of liability for supervisors. The test for them is the same as the test for everyone else." Porro, 624 F.3d at 1328. None of the cases discussed — not even the Ninth Circuit's decision in Starr — has upheld a special test that applies only to supervisors. The majority disagrees, saying Sample's "essence" is deliberate indifference, Maj. Transcript at 320, so we should continue to treat supervisors differently. Only by doing so, can the majority circumvent the District Court's prior holdings that the record does not show deliberate indifference. App. at 15.
With due respect to my colleagues' concern that Iqbal has "bedeviled" the courts of appeals, Maj. Typescript at 318, I perceive near unanimous agreement among our sister circuits. Barkes's claim plainly seeks to hold Taylor and Williams vicariously liable for, in Barkes's words, "presid[ing] over a system," App. at 745, that she deems unlawful. Today's decision invites plaintiffs to sue senior government officials whenever prison guards use force against an inmate or police officers mistreat a suspect. Regrettably, it exposes Commissioner Taylor and Delaware's prison wardens to lawsuits from any Delaware inmate with a complaint about FCM's services. "In an ideal world, [supervisors] would have achieved full compliance with the [law], but a public official's inability to ensure that all subordinate ... employees follow the law has never justified personal liability.... [S]upervisors are not vicariously
For these reasons, I would reverse the District Court's denial of Taylor and Williams's motion for summary judgment on qualified immunity. See Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir.2010) (explaining that questions of supervisory liability, though part of the substance of a section 1983 claim, are also part of the qualified immunity analysis); al-Kidd v. Ashcroft, 580 F.3d 949, 964-65 (9th Cir. 2009) (same). None of the courts that have considered Iqbal have applied a standard like Sample's, as the majority does today. The District Court's prior decision that Barkes cannot prove Taylor and Williams's deliberate indifference combined with the absence of any allegation of personal involvement on their part, entitles them to qualified immunity.
Even had Iqbal not substantially changed the law of supervisory liability and had Sample remained good law, I would still hold that Taylor and Williams are entitled to summary judgment. According to Sample, the test for supervisory liability is as follows:
885 F.2d at 1118. The District Court erred by omitting Sample's threshold prerequisite, namely, that the plaintiff identify "a specific supervisory practice or procedure that [the supervisor] failed to employ." Id.; accord Maj. Typescript at 317. It applied only Sample's enumerated elements without ever requiring Barkes to identify a supervisory practice and misstated Sample's causation element by omitting the identified supervisory practice. Judge Farnan properly applied Sample when he granted Taylor and Williams summary judgment on Barkes's first supervisory liability claim, and his analysis turned on Sample's threshold element. And although the majority has accurately spelled out the Sample test — implicitly recognizing the District Court's error — it errs in concluding that Barkes has satisfied this essential element.
Barkes's complaint does not even attempt to make the identification required by Sample. Nevertheless, according to the majority:
Maj. Typescript at 330. The majority does not say where Barkes makes this contract enforcement allegation and my review of the pleadings failed to locate it either.
885 F.2d at 1118. Barkes's contention that Taylor and Williams should have enforced the contract fails to meet our specificity requirements. The relevant question is: what "supervisory practice or procedure" should Taylor or Williams have implemented to enforce the contract? Commissioner Taylor already tasked a bureau with enforcing the FCM contract, and Warden Williams had no supervisory responsibilities over FCM. Pursuant to Delaware law, Joyce Talley, the chief of the DOC's Bureau of Management Services, supervised FCM. Barkes's utter failure to satisfy this element of Sample's test underscores the fact that neither Taylor nor Williams supervised FCM. Barkes has targeted them merely as top-level DOC executives.
Even had Sample survived Iqbal, Taylor and Williams would be entitled to summary judgment. Judge Farnan granted them summary judgment on the first supervisory liability claim because Barkes failed to meet Sample's threshold requirement. Barkes did not allege in her third amended complaint a specific supervisory practice that Taylor and Williams should have performed, and any allegations that Taylor and Williams should have "enforced" the contract would do nothing to cure that omission. The District Court should have granted Taylor's and Williams's motion for summary judgment on the supervisory liability claim for the same reasons Judge Farnan did on the earlier supervisory liability claim.
Finally, I disagree with the majority's formulation of the constitutional right at issue. In addition to challenging the viability of supervisory liability after Iqbal, Taylor and Williams argued that Barkes's asserted right was not "clearly established." If true, that would also entitle them to qualified immunity. See Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). They argued that our case law had not clearly established a right "to supervision of the medical vendor by the prison administrators." Br. of Appellants at 19. The majority responds by stating "that the right [Barkes] assert[s], properly defined, is this: an incarcerated person's right to the proper implementation of adequate suicide prevention protocols." Maj. Typescript at 327. This is problematic for two reasons. First, the description of a right to suicide prevention protocols does not address Taylor and Williams's argument that there is no clearly established right to supervision over those charged with developing and carrying out suicide prevention protocols since this supposed right concerns FCM's responsibilities.
Even if it were true that clearly established law mandated "adequate suicide prevention protocols," the majority's requirement of the "proper implementation" of those protocols plainly violates the basic proposition that the Eighth Amendment does not impose liability for negligence. See Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d Cir.1991). "Failure to follow written procedures does not constitute per se deliberate indifference. If this were so, such a rule would create an incentive for jails to keep their policies vague, or not formalize policies at all." Luckert v. Dodge Cnty., 684 F.3d 808, 819 (8th Cir. 2012) (granting supervisor qualified immunity when the prison's "actual practice in dealing with suicide intervention ... did not reflect [the prison's] written policy").
Barkes has targeted Taylor and Williams for "presid[ing] over a system." App. at 745. This runs afoul of Iqbal and the substantial weight of authority among our sister courts, which holds that supervisors like Taylor and Williams cannot be liable under section 1983 absent their personal involvement. Even under the Ninth Circuit's approach, Barkes would need to sue the person actually supervising FCM and cannot recover against the DOC's top executives. None of the courts of appeals since Iqbal have upheld a supervisory liability test like Sample's, which treats supervisors differently from everyone else.
Even assuming arguendo that Sample remains good law, Barkes's allegation that Taylor and Williams failed to enforce a contract with FCM does not satisfy Sample's threshold element. Finally, the "right to the proper implementation of adequate suicide prevention protocols" is a departure from Eighth Amendment case law that had never been established before today. Because Taylor and Williams are
Id. at 1187 (quoted in Colburn I, 838 F.2d at 669).
701 F.3d at 204. One sentence later, the court restated its reliance on Farmer:
701 F.3d at 204.
Separately, the majority attacks this rule with a hypothetical from Judge Hamilton's dissent from Vance in which "a local police chief or even the FBI director issued a policy that authorized the use of deadly force," which policy "would be clearly unconstitutional." Maj. Transcript at 325 (quoting Vance, 701 F.3d at 223 (Hamilton, J., dissenting)). This hypothetical clearly survives Dodds because the policy's unconstitutional quality originates with the supervisor. Judge Hamilton's hypothetical is poles apart from Barkes's complaint, which alleges FCM's policies — not the DOC's — caused the HRYCI's healthcare to deteriorate below the constitutional minimum.
652 F.3d at 1216. On the question of knowledge, Barkes alleges merely that Taylor and Williams "were aware that the suicide rate in Delaware prisons was above the national average," that they knew "jailed detainees have a higher incidence of suicide than incarcerated inmates" but "there was only one suicide prevention policy applicable to both," and that both were "aware that the first twenty-four hours of a jailed detainee's detention were a time of high-suicide risk." App. at 171-72.
Starr, 652 F.3d at 1219 (Trott, J., dissenting).
