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4 PJI 6.1 | Third Circuit (US)
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4 PJI 6.1 | SECTION 1983 – SUPERVISORY OFFICIALS

[N.B.: Please see the Comment for a discussion of whether and to what extent this model instruction retains validity after Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).]

[Plaintiff] contends that [supervisor’s] subordinate, [subordinate], violated [plaintiff’s] federal rights, and that [supervisor] should be liable for [subordinate’s] conduct. If you find that [subordinate] violated [plaintiff’s] federal rights, then you must consider whether [supervisor] caused [subordinate’s] conduct.

[Supervisor] is not liable for such a violation simply because [supervisor] is [subordinate’s] supervisor. To show that [supervisor] caused [subordinate’s] conduct, [plaintiff] must show one of three things:

First: [Supervisor] directed [subordinate] to take the action in question;

Second: [Supervisor] had actual knowledge of [subordinate’s] violation of [plaintiff’s] rights and [supervisor] acquiesced in that violation; or

Third: [Supervisor], with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the violation.


As I mentioned, the first way for [plaintiff] to show that [supervisor] is liable for [subordinate’s] conduct is to show that [supervisor] directed [subordinate] to engage in the conduct. [Plaintiff] need not show that [supervisor] directly, with [his/her] own hands, deprived [plaintiff] of [his/her] rights. The law recognizes that a supervisor can act through others, setting in motion a series of acts by subordinates that the supervisor knows, or reasonably should know, would cause the subordinates to violate the plaintiff’s rights. Thus, [plaintiff] can show that [supervisor] caused the conduct if [plaintiff] shows that [subordinate] violated [plaintiff’s] rights at [supervisor’s] direction.

Alternatively, the second way for [plaintiff] to show that [supervisor] is liable for [subordinate’s] conduct is to show that [supervisor] had actual knowledge of [subordinate’s] violation of [plaintiff’s] rights and that [supervisor] acquiesced in that violation. To “acquiesce” in a violation means to give assent to the violation. Acquiescence does not require a statement of assent, out loud: acquiescence can occur through silent acceptance. If you find that [supervisor] had authority over [subordinate] and that [supervisor] actually knew that [subordinate] was violating [plaintiff’s] rights but failed to stop [subordinate] from doing so, you may infer that [supervisor] acquiesced in [subordinate’s] conduct.

Finally, the third way for [plaintiff] to show that [supervisor] is liable for [subordinate’s] conduct is to show that [supervisor], with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the conduct. [Plaintiff] alleges that [supervisor] should have [adopted a practice of] [followed the existing policy of] [describe supervisory practice or policy that plaintiff contends supervisor should have adopted or followed].

To prove that [supervisor] is liable for [subordinate’s] conduct based on [supervisor’s] failure to [adopt that practice] [follow that policy], [plaintiff] must prove all of the following four things by a preponderance of the evidence:

First: [The existing custom and practice without [describe supervisory practice]] [the failure to follow the policy of [describe policy]] created an unreasonable risk of [describe violation].

Second: [Supervisor] was aware that this unreasonable risk existed.

Third: [Supervisor] was deliberately indifferent to that risk.

Fourth: [Subordinate’s] [describe violation] resulted from [supervisor’s] failure to [adopt [describe supervisory practice]] [follow [describe policy]].



COMMENT Note concerning Instruction 4.6.1 and Ashcroft v. Iqbal:

Instruction 4.6.1 was originally drafted based on Third Circuit law prior to Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Iqbal involved the request by John Ashcroft and Robert Mueller for review of the denial of their motions to dismiss the claims of Javaid Iqbal, who alleged that Ashcroft and Mueller “adopted an unconstitutional policy that subjected [him] to harsh conditions of confinement on account of his race, religion, or national origin” in the wake of September 11, 2001. Iqbal, 129 S. Ct. at 1942. In Iqbal, a closely-divided Court concluded that “vicarious liability is inapplicable to Bivens and § 1983 suits” and that therefore “a plaintiff must plead that each Government official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948. It is not yet clear what Iqbal’s implications are for the theories of supervisors’ liability that had previously been in use in the Third Circuit.60

A theory of liability based on the supervisor’s direction to a subordinate to take the action that violates the plaintiff’s rights would seem viable after Iqbal (subject to a caveat, noted below, concerning levels of scienter); such a theory is reflected in the first of the three alternatives stated in Instruction 4.6.1. The second and third alternatives stated in Instruction 4.6.1, by contrast, may be more broadly affected by Iqbal. Versions of those alternative theories – a knowledge-and-acquiescence theory61 and a deliberate-indifference theory – were invoked by the plaintiff and the dissenters in Iqbal; accordingly, the Iqbal majority’s conclusion that the plaintiff had failed to state a claim, coupled with the majority’s statements concerning the non-existence of vicarious liability, might be read to cast some question on the viability of those two alternatives.

However, the scope of Iqbal’s holding is subject to dispute. Though dictum in Iqbal addresses Section 1983 claims, the holding concerns Bivens claims. Though Iqbal purports to outlaw “vicarious liability” in both types of cases, it cites Monell with approval and indicates no intent to displace existing doctrines of municipal liability (which are, in their conceptual structure, quite similar to the theories of supervisor liability discussed in Instruction 4.6.1 and this Comment).62 And Iqbal itself concerned a type of constitutional violation – discrimination on the basis of race, religion and/or national origin – that requires a showing of “discriminatory purpose”; it is possible to read Iqbal as turning upon the notion that, to be liable for a subordinate’s constitutional violation, the supervisor must have the same level of scienter as is required to establish the underlying constitutional violation.63 On that reading, a claim that requires a lesser showing of scienter for the underlying violation – for example, a Fourth Amendment excessive force claim – might have different implications (for purposes of the supervisor’s liability) than a claim that requires a showing of purposeful discrimination for the underlying violation.

The court of appeals has begun to settle some of these issues. In Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014)">Barkes v. First Correctional Medical, 766 F.3d 307 (3d Cir. 2014), rev’d on other grounds, 135 S. Ct. 2042 (2015), it applied Iqbal to a section 1983 action. In addition, it held, as suggested above, that, “under Iqbal, the level of intent necessary to establish supervisory liability will vary with the underlying constitutional tort alleged.” Id. at 319. The underlying constitutional tort in Barkes was “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.” Id. It therefore held that the standard previously announced in Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989), for imposing supervisory liability based on an Eighth Amendment violation is consistent with Iqbal. It left for another day the question whether and under what circumstances a claim for supervisory liability derived from a violation of a different constitutional provision remains valid. See also Chavarriaga v. New Jersey Dept. of Corr., 806 F.3d 210 (3d Cir. 2015) (applying Sample to Eighth Amendment claims and stating that “liability under 1983 may be imposed on an official with final policymaking authority if that official establishes an unconstitutional policy that, when implemented, injures a plaintiff”); cf. Palakovic v. Wetzel, 854 F.3d 209, 225 n.17 (3d Cir. 2017) (noting that Iqbal may have called into question “whether a supervisor may be held indirectly liable for deficient policies under Sample,” but avoiding that question because the complaint was sufficient to support a direct claim against prison supervisors under the deliberate indifference test of Farmer v. Brennan, 511 U.S. 825 (1994)).

Palakovic concluded that supervisors could be directly liable because of allegations that a prisoner diagnosed with serious mental health issues was placed in solitary confinement and “the increasingly obvious reality that extended stays in solitary confinement can cause serious damage to mental health.” 854 F.3d at 226. For similar reasons, it held that a failure to train claim against supervisory defendants was sufficient because of allegations that the supervisors “provided essentially no training on suicide, mental health, or the impact of solitary confinement, and simply acquiesced in the repeated placement of mentally ill prisoners... in solitary confinement.” Id. at 234. Similarly, in Wharton v. Danberg, 854 F.3d 234, 243 (3d Cir. 2017), the court of appeals stated that “supervisors are liable only for their own acts,” and that in the context of a case involving the detention of prisoners beyond when they should be released, are liable only if they acted with deliberate indifference to the constitutional harm done by their policy, practice, or custom. See also E. D. v. Sharkey, 928 F.3d 299, 309 (3d Cir. 2019) (holding that “there is enough evidence to support an inference that the Defendants knew of the risk facing [an immigration detainee], and that their failure to take additional steps to protect her — acting in their capacity as either a co-worker or supervisor — could be viewed by a factfinder as the sort of deliberate indifference to a detainee’s safety that the Constitution forbids”) (internal quotation marks omitted). Cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1864 (2017) (assuming, without deciding, that the substantive standard for a Bivens claim against a warden for allowing prison guards to abuse detainees would be whether the warden showed “deliberate indifference” to prisoner abuse while stating that “a Bivens claim is brought against the individual official for his or her own acts, not the acts of others,” and that “Bivens is not designed to hold officers responsible for acts of their subordinates”).

In Parkell v. Danberg, 833 F.3d 313, 331 (3d Cir. 2016), the court of appeals held that a supervisor who “passively permits his subordinates to implement a policy that was set by someone else and is beyond the official’s authority to change” is not subject to supervisory liability. A prison warden who knew about a search practice was not subject to supervisory liability because the plaintiff failed to point to “any evidence of where the search policy, practice, or custom came from,” and it might have been established by the Department of Corrections, leaving the warden with no authority to change it. Id. at 331. Parkell also held that the standard for supervisory liability does not apply to injunctions, so that the defendants’ lack of “personal involvement in past constitutional violations does not preclude... prospective injunctive relief” against a defendant. Id. at 332. See also Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (affirming the dismissal of a claim against a warden and deputy warden because the “complaint makes clear that [the plaintiff] only spoke to these defendants after the alleged retaliation occurred,” and provides no basis for inferring that they “were personally involved in any purported retaliation”), overruled on other grounds, Mack v. Yost, 968 F.3d 311 (3d Cir. 2020).

Pending further guidance from the Supreme Court or the court of appeals, the Committee decided to alert readers to these issues without attempting to anticipate the further development of the law in this area. In determining whether to employ some or all portions of Instruction 4.6.1, courts should give due attention to the implications of Iqbal for the particular type of claim at issue. See also Wood v. Moss, 134 S. Ct. 2056 (2014) (relying on Iqbal in a case alleging viewpoint discrimination and declining to infer from alleged misconduct by some Secret Service agents an unwritten Secret Service policy to “suppress disfavored expression, and then to attribute that supposed policy to all field-level operatives”).

The remainder of this Comment discusses Third Circuit law as it stood prior to Iqbal.

Discussion of pre-Iqbal caselaw

A supervisor incurs Section 1983 liability in connection with the actions of another only if he or she had “personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In the Third Circuit,64 “[p]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Id.; see also C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”); Baker v. Monroe Tp., 50 F.3d 1186, 1194 (3d Cir. 1995) (noting that “actual knowledge can be inferred from circumstances other than actual sight”); A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir. 2004) (noting that “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 his subordinates' violations”); Black v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981) (“To hold a police chief liable under section 1983 for the unconstitutional actions of one of his officers, a plaintiff is required to establish a causal connection between the police chief's actions and the officer's unconstitutional activity.”). The model instruction is designed for cases in which the plaintiff does not assert that the supervisor directly participated in the activity; if the plaintiff provides evidence of direct participation, the instruction can be altered to reflect that direct participation by the supervisor is also a basis for liability.

A number of circumstances may bear upon the determination concerning actual knowledge. See, e.g., Atkinson v. Taylor, 316 F.3d 257, 271 (3d Cir. 2003) (holding, with respect to commissioner of state department of corrections, that “[t]he scope of his responsibilities are much more narrow than that of a governor or state attorney general, and logically demand more particularized scrutiny of individual complaints”).

As to acquiescence, “[w]here a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor ‘acquiesced’ in (i.e., tacitly assented to or accepted) the subordinate's conduct.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997).

A supervisor with policymaking authority may also, in an appropriate case, be liable based on the failure to adopt a policy.65 See A.M. ex rel. J.M.K., 372 F.3d at 586 (“Individual defendants who are policymakers may be liable under § 1983 if it is shown that such defendants, ‘with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm. ’”) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.1989)). The analysis of such a claim appears to track the deliberate indifference analysis employed in the context of municipal liability. See id. (holding that summary judgment for the supervisors in their individual capacities was inappropriate, “[g]iven our conclusion that A.M. presented sufficient evidence to present a jury question on” the issue of municipal liability for failure to adopt adequate policies); Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989) (“Although the issue here is one of individual liability rather than of the liability of a political subdivision, we are confident that, absent official immunity, the standard of individual liability for supervisory public officials will be found to be no less stringent than the standard of liability for the public entities that they serve.”); see also id. at 1118 (holding that “a judgment could not properly be entered against Robinson in this case based on supervisory liability absent an identification by Sample of a specific supervisory practice or procedure that Robinson failed to employ and specific findings by the district court that (1) the existing custom and practice without that specific practice or procedure created an unreasonable risk of prison overstays, (2) Robinson was aware that this unreasonable risk existed, (3) Robinson was indifferent to that risk, and (4) Diecks' failure to assure that Sample's complaint received meaningful consideration resulted from Robinson's failure to employ that supervisory practice or procedure”).

(Last Updated July 2019)

Footnotes

60 For cases indicating that some or all of the Third Circuit’s supervisory-liability standards survive Iqbal, see, e.g., McKenna v. City of Philadelphia, 582 F.3d 447, 460-61 (3d Cir. 2009) (upholding grant of judgment as a matter of law to defendants on supervisory liability claims and explaining that “[t]o be liable in this situation, a supervisor must have been involved personally, meaning through personal direction or actual knowledge and acquiescence, in the wrongs alleged”); Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010) (applying the framework set by Baker v. Monroe Tp., 50 F.3d 1186 (3d Cir. 1995), and affirming dismissal of supervisory-liability claim based on lack of evidence “that Mannell directed Evanson to take or not to take any particular action concerning Reedy that would amount to a violation of her constitutional rights”); Marrakush Soc. v. New Jersey State Police, 2009 WL 2366132, at *31 (D.N.J. July 30, 2009) (“Personal involvement can be asserted through allegations of facts showing that a defendant directed, had actual knowledge of, or acquiesced in, the deprivation of a plaintiff's constitutional rights.”).

For decisions that noted the question whether those standards survive Iqbal, see Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010) (“Numerous courts, including this one, have expressed uncertainty as to the viability and scope of supervisory liability after Iqbal.... Because we hold that Santiago's pleadings fail even under our existing supervisory liability test, we need not decide whether Iqbal requires us to narrow the scope of that test.”); Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70 (3d Cir. 2011) (“To date, we have refrained from answering the question of whether Iqbal eliminated – or at least narrowed the scope of – supervisory liability because it was ultimately unnecessary to do so in order to dispose of the appeal then before us.... We likewise make the same choice here....”).

61 Cf. Bayer v. Monroe County Children and Youth Services, 577 F.3d 186, 190 n.5 (3d Cir. 2009) (“The [district] court concluded that plaintiffs had created a triable issue ‘as to whether Defendant Bahl had personal knowledge regarding the Fourteenth Amendment procedural due process violation.’ In light of the Supreme Court's recent decision in [Iqbal], it is uncertain whether proof of such personal knowledge, with nothing more, would provide a sufficient basis for holding Bahl liable with respect to plaintiffs' Fourteenth Amendment claims under § 1983.... We need not resolve this matter here, however.”).
62 Cf., e.g., Horton v. City of Harrisburg, 2009 WL 2225386, at *5 (M.D.Pa. July 23, 2009) (“Supervisory liability under § 1983 utilizes the same standard as municipal liability. See Iqbal.... Therefore, a supervisor will only be liable for the acts of a subordinate if he fosters a policy or custom that amounts to deliberate indifference towards an individual's constitutional rights.”).
63 In cases where the underlying constitutional violation requires a showing of purposeful discrimination, Iqbal thus appears to heighten the standard for supervisors’ liability even under the first of the three theories described in Instruction 4.6.1.
64 See Baker v. Monroe Tp., 50 F.3d 1186, 1194 n.5 (3d Cir. 1995) (noting that “other circuits have developed broader standards for supervisory liability under section 1983”).
65 When a supervisor with policymaking authority is sued on a failure-to-train theory, the standard appears to be the same as for municipal liability. See Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005) (“A supervising authority may be liable under § 1983 for failing to train police officers when the failure to train demonstrates deliberate indifference to the constitutional rights of those with whom the officers may come into contact.”); see also infra Comment 4.6.7 (discussing municipal liability for failure to train).

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