Lorena Bostic v. Salvadore Vasquez

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1665

LORENA E. BOSTIC,

Plaintiff-Appellant,

v.

CLARENCE D. MURRAY and JAN PARSONS, *

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:15-CV-429 — Joshua P. Kolar, Circuit Judge.

____________________

ARGUED JANUARY 17, 2024 — DECIDED NOVEMBER 21, 2025

____________________

Before FLAUM, † EASTERBROOK, and PRYOR, Circuit Judges.

* We have modified the caption to reflect the defendants-appellees who

remain in the case. Bostic appeals only the entry of summary judgment in

favor of Clarence Murray and Jan Parsons, so she has abandoned claims

against any other defendant. See Wells v. Caudill, 967 F.3d 598, 600 (7th Cir.

2020).

† Circuit Judge Flaum passed away on December 4, 2024, so this appeal is

being resolved by a quorum of the panel. See 28 U.S.C. § 46(d).

2 No. 23-1665

PRYOR, Circuit Judge. Invoking 42 U.S.C. § 1983, Lorena

Bostic sued individuals in the Lake County Superior Court

and Lake County Probation Office (Indiana) after her proba-

tion officer, Miroslav Radiceski, raped her. Bostic alleged that

the supervisors were deliberately indifferent of her wellbeing

by assigning Radiceski to supervise her despite knowing Ra-

diceski’s prior inappropriate interactions with another female

probationer. The district court granted summary judgment in

favor of the supervisors, and we affirm.

I. BACKGROUND

We construe the record in the light most favorable to Bos-

tic, the nonmoving party, and construe all reasonable infer-

ences from the evidence in her favor. Tousis v. Billiot, 84 F.4th

692, 697 (7th Cir. 2023).

A. Factual History

At all times relevant to this case, Lorena Bostic was on pro-

bation in Lake County, Indiana, having been placed on pro-

bation by Lake County Superior Court Judge Clarence Mur-

ray in 2011. In late 2012, Miroslav Radiceski with the Lake

County Probation Office was assigned to supervise Bostic.

Radiceski’s supervisors—chief probation officer Jan Par-

sons and Supervising Judge Clarence Murray—knew that Ra-

diceski had a checkered past. In mid-2011, a female proba-

tioner, identified by the parties as A.R., reported to Chief Pro-

bation Officer Parsons that Radiceski had behaved inappro-

priately toward her. A.R. recounted that, during a probation

meeting, Radiceski had asked her several unusual ques-

tions—including whether she was married, the last time she

had sex, and how many tattoos she had. Afterward, Radiceski

guided A.R. to the top of a secluded stairwell. There, he asked

No. 23-1665 3

A.R. to lift her shirt and lower her pants, revealing all her tat-

toos. Radiceski then personally moved A.R.’s clothing to get

a second view of her tattoos.

After A.R. reported this incident and requested a different

supervising probation officer, Parsons sought to verify the de-

tails. She interviewed A.R. and consulted with the head of se-

curity to check for a video recording from the stairwell but

none existed. Parsons also spoke with Radiceski, who pro-

vided a written statement denying the allegations. Given the

conflicting evidence, Parsons was unable to determine

whether the incident “actually did happen” as alleged. In the

end, Parsons—after consulting with Judge Murray—decided

to grant A.R.’s request, assigning her a new, female probation

officer.

Still, Parsons and Judge Murray decided not to suspend,

fire, or retrain Radiceski given their view that A.R.’s com-

plaint was only “an allegation”—the “first” against Radi-

ceski—for which there was “no proof.” Parsons, however,

temporarily barred Radiceski from supervising any female

probationers. Parsons noted that this was the only gender-

specific restriction that she could recall in her thirty-year ca-

reer. But this solution was not meant to be a long-term fix;

Radiceski would gradually resume supervising female proba-

tioners.

During the restriction period, Radiceski was still permit-

ted to handle “intakes” for female probationers, meaning that

he guided new arrivals to the probation office. According to

Parsons, Radiceski generally performed these duties without

incident. Parsons noted one concerning episode, though.

While performing an intake, Radiceski persistently asked to

4 No. 23-1665

oversee a female probationer who had some mental health is-

sues. Parsons repeatedly denied his requests.

After about a year-and-a-half of the restriction, a shortage

of probation officers prompted Parsons to assign Radiceski a

few female probationers. Among these was Bostic in late 2012.

It appears that Bostic’s first several interactions with Radi-

ceski were unremarkable. This changed at the end of March

2013, however. During a routine meeting, Radiceski put his

hand on Bostic’s leg, which made her uncomfortable. She re-

moved his hand from her leg, said “can you please not do

that,” and then left the meeting.

Days later, Bostic received a letter indicating that Radi-

ceski filed a petition to revoke her probation, a move that

could have led to her serving three years in prison. It seemed

to Bostic that Radiceski filed this petition as payback for re-

buffing his advances. During an appointment to discuss the

pending revocation petition, Radiceski told Bostic not to

worry about the petition and then said, “Only I can help you,

you know, like … you need me.”

With the potential for prison time looming, Bostic contin-

ued to attend probation meetings with Radiceski. Things got

worse. During every appointment Bostic attended after Radi-

ceski filed the petition to revoke her probation, Bostic testi-

fied, Radiceski would “nonconsensually” grope her body. He

would squeeze her breasts and her buttocks. He put his hands

in her pants. Bostic did not report these incidents to anyone

in the probation office because “they’re all friends,” and she

did not want to risk going to prison.

Following a hearing on the revocation on November 26,

2013, Radiceski told Bostic to follow him. Bostic assumed they

No. 23-1665 5

were going to Radiceski’s office, but instead, he led her down

a hallway and into a stairwell. After reaching the top of the

stairwell, Radiceski grabbed Bostic, pushed on her head, and

forced her to perform oral sex on him. He told Bostic to get

up, and then he raped her.

The next day, Bostic called a rape hotline and sought med-

ical attention at a hospital. Within a week, Radiceski was sus-

pended with pay, pending a police investigation. By the end

of December 2013, Radiceski was fired.

The next year, Radiceski was indicted for five criminal

counts, including criminal deviate conduct and official mis-

conduct. Indiana v. Radiceski, No. 45G03-1408-FB-000051 (Lake

Sup. Ct.). Radiceski pled guilty to one count of official mis-

conduct and was sentenced to three years’ incarceration,

served on electronic monitored home detention. Id.

B. Procedural History

Bostic sued Radiceski, Chief Probation Officer Parsons,

Judge Murray, and several other state and county defendants,

asserting claims under 42 U.S.C. § 1983 in the United States

District Court for the Northern District of Indiana. According

to Bostic, Radiceski’s sexual misconduct violated her right to

“personal security and bodily integrity” as secured by the

Fourteenth Amendment’s Due Process Clause. She also as-

serted that Parsons and Judge Murray were liable “due to

their facilitating of Radiceski’s sexual assault and rape against

her as well as for failing to protect her from Radiceski” under

a theory of supervisory liability.

Almost two years into this lawsuit, during a telephonic

status conference, Magistrate Judge Paul Cherry was advised

that the parties “orally consent to the jurisdiction of the

6 No. 23-1665

magistrate judge” and the case proceeded. 1 More than two

years later, on December 31, 2018, Magistrate Judge Cherry

retired. Then-Magistrate Judge Kolar was assigned to the

case, and he assumed jurisdiction. Judge Kolar gave the par-

ties thirty days “to object to [his] continued exercise of juris-

diction.” The order added that “[t]he failure to timely file an

objection to the continued exercise of jurisdiction … shall op-

erate as consent to [Judge Kolar’s] jurisdiction.” No party

filed an objection.

In due course, on January 23, 2023, Judge Kolar entered

summary judgment in favor of several defendants, including

Chief Probation Officer Parsons and Judge Murray. Bostic v.

Vasquez, 652 F. Supp. 3d 971 (N.D. Ind. 2023). As relevant here,

the court ruled that Parsons and Judge Murray were entitled

to qualified immunity because no clearly established law put

them on notice that their conduct was unconstitutional. Id. at

990–94. Bostic’s claims against Radiceski proceeded to trial on

February 27, 2023. The jury returned a $750,000 verdict in fa-

vor of Bostic. The same day, the clerk of court entered judg-

ment against Radiceski. No judgment was ever entered in re-

lation to the claim against Parsons or Judge Murray.

Bostic now appeals the entry of summary judgment for

Parsons and Judge Murray.

1 “Magistrate judges may conduct civil trials and enter final judgments, if

all of the parties consent.” Mark I, Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir.

1994) (citing 28 U.S.C. § 636(c)). See also District Ct. Dkt. 71, Telephonic

Summary.

No. 23-1665 7

II. ANALYSIS

A. Preliminary Issues

Before getting to the merits of Bostic’s appeal, we address

two preliminary matters.

1. Magistrate Judge Jurisdiction

The first issue is whether then-Magistrate Judge Kolar had

jurisdiction to rule on the summary judgment motion.

In civil litigation, parties can consent to let a magistrate

judge preside over a case and issue final decisions. 28 U.S.C.

§ 636(c)(1). Consent to a magistrate judge’s authority can be

either express or implied, at least where the parties have no-

tice of their right to refuse. Marion HealthCare, LLC v. S. Illinois

Hosp. Servs., 41 F.4th 787, 790 (7th Cir. 2022); see also Stevo v.

Frasor, 662 F.3d 880, 883 (7th Cir. 2011). For consent to be im-

plied, though, the parties must have notice of their right to

refuse and engage in “some” concrete action—such as appear-

ing and participating in a case after being told about the con-

sequences.” Coleman v. Lab. & Indus. Rev. Comm'n of Wisconsin,

860 F.3d 461, 470 (7th Cir. 2017) (citing Roell v. Withrow, 538

U.S. 580, 586–90 (2003)).

Here, the parties litigated the case before two magistrate

judges. The parties verbally consented “to the jurisdiction of

the magistrate judge,” and Magistrate Judge Cherry accepted

this notification as if the parties had executed the appropriate

written form. 2 Following the case’s transfer, Judge Kolar gave

2 District Ct. Dkt. 21, Consent Form, which provides,

In accordance with the provisions of 28 U.S.C. § 636(c),

Fed. R. Civ. P. 73, and [Northern District of Indiana] Local

Rule 72-1, the parties in this case voluntarily consent to

8 No. 23-1665

the parties thirty days “to object to [his] continued exercise of

jurisdiction,” however, no one did. 3 Based on the parties’ liti-

gation conduct following this notice, we find the parties im-

pliedly consented to Judge Kolar’s jurisdiction. Roell, 538 U.S.

at 586–90; Marion HealthCare, 41 F.4th at 790. So, Judge Kolar

had the authority to rule on the summary judgment motion

and enter a final, appealable order.

2. Timeliness of the Appeal

On January 23, 2023, Judge Kolar entered summary judg-

ment for Parsons and Judge Murray. Recall, more than a

month later, the court presided over a jury trial that resulted

in a verdict against Radiceski. 4 The same day the jury ren-

dered its verdict—February 28—the clerk of court’s entry of

judgment was entered. 5 This judgment said, in relevant part,

that “[t]he court has ordered that … Lorena E. Bostic recover

from defendant Miroslav Radiceski the amount of seven hun-

dred and fifty thousand dollars … , plus post-judgment inter-

est.” (Id.). This judgment was incomplete; it did not include

the outcome of Bostic’s claims against the other six defend-

ants, including Parsons and Judge Murray.

“Federal Rule of Civil Procedure 58 requires that a judg-

ment by a district court be set forth in a separate document.”

Brown v. Fifth Third Bank, 730 F.3d 698, 699 (7th Cir. 2013)

have a United States Magistrate Judge conduct all further

proceedings in this case, including … entry of a final judg-

ment ….

3 District Ct. Dkt. 155, Jurisdiction Order.

4 District Ct. Dkt. 285, Jury Verdict.

5 District Ct. Dkt. 287, Clerk’s Entry of Judgment.

No. 23-1665 9

(citing FED. R. CIV. P. 58(c)(2)(B); FED. R. APP. P. 4(a)(7)(A)(ii)).

If, however, the judge fails to enter an order that satisfies the

rules, judgment is deemed entered 150 days after the court’s

final decision. Id.; see also Bell v. Publix Super Mkts., Inc., 982

F.3d 468, 491 (7th Cir. 2020) (stating the Federal Rules of Civil

Procedure provide a “150-day fail-safe”); TDK Elecs. Corp. v.

Draiman, 321 F.3d 677, 679–80 (7th Cir. 2003).

Applying those standards here, we treat the judgment, as

to Parsons and Judge Murray, as if it were entered on Mon-

day, July 31, 2023, the first business day after the 150th day.

See Bell, 982 F.3d at 491. That means Bostic’s premature notice

of appeal, which was filed on March 29, 2023, will “spring for-

ward” to July 31, 2023, the date on which the judgment be-

came final. Roe v. Elyea, 631 F.3d 843, 854 (7th Cir. 2011) (citing

FED. R. APP. P. 4(a)(2)); see also Bell v. Kay, 847 F.3d 866, 868

(7th Cir. 2017). Bostic’s appeal is therefore timely, and our ju-

risdiction is secure.

B. Summary Judgment

Summary judgment should be granted “if the movant

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). We review the grant of summary judg-

ment de novo, meaning that we take a fresh look at the facts

and the parties’ arguments and assess for ourselves whether

Parsons and Judge Murray deserve summary judgment. Doe

v. Gray, 75 F.4th 710, 716 (7th Cir. 2023).

Bostic claims that Parsons and Judge Murray violated her

constitutional rights. In particular, she asserts that their ac-

tions—choosing to allow Radiceski to supervise female pro-

bationers despite his poor track-record with women—

10 No. 23-1665

infringed on her right to bodily integrity, which is enshrined

within the substantive due process protections of the Four-

teenth Amendment. See Hess v. Garcia, 72 F.4th 753, 765–67

(7th Cir. 2023); Albright v. Oliver, 510 U.S. 266, 272 (1994) (plu-

rality opinion). 6

Finding Bostic’s “supervisory liability” theory failed, the

district court granted summary judgment in favor of Parsons

and Judge Murray. Bostic, 652 F. Supp. 3d at 994–95. The court

found these defendants were entitled to qualified immunity,

id. at 994, which shields government officials like Parsons and

Judge Murray from damages in civil suits “so long as their

conduct does not violate clearly established statutory or con-

stitutional rights of which a reasonable person would have

known,” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)

(internal quotation marks and citation omitted).

The court noted that Bostic could defeat the defense of

qualified immunity by showing two things: first, that the facts

show a violation of a constitutional right, and second, that the

constitutional right was clearly established at the time of the

alleged violation. Bostic, 652 F. Supp. 3d at 980 (citing, among

others, Holloway v. City of Milwaukee, 43 F.4th 760, 767 (7th Cir.

2022)). Bostic was unable to do so, however, because she did

not cite any cases that showed that “the law was clearly estab-

lished that Parsons or Judge Murray would have understood

6 In the district court, Bostic also pursued a “failure-to-protect” theory un-

der the Supreme Court’s decision in DeShaney v. Winnebago County Depart-

ment of Social Services, 489 U.S. 189 (1989). The district court ruled that this

theory was unavailable here, as it applies only when public officials fail to

protect someone from private violence, not violence by other public offi-

cials. Bostic concedes that the district court was correct, so we discuss this

no further.

No. 23-1665 11

that their conduct would violate Bostic’s constitutional right

to bodily integrity.” Id. at 994.

Bostic argues that the district court should not have

granted summary judgment to Parsons and Judge Murray.

She argues that there was a constitutional violation here: the

lackluster response of Parsons and Judge Murray to the report

of Radiceski’s previous incident of sexual misconduct ena-

bled him to rape her. Moreover, Bostic claims that this con-

duct was clearly established as being unconstitutional, as any

government official would have known that they could not

create an environment that allowed sexual violence to flour-

ish.

To determine if Bostic defeated Parsons and Judge Mur-

ray’s qualified immunity defense, we—like the district

court—use a familiar two-part framework, asking:

(1) whether the facts, read in Bostic’s favor, amount to a con-

stitutional violation and (2) whether the constitutional right

was clearly established at the time of the alleged violation.

Tousis, 84 F.4th at 697. We can address either prong first, id.,

but we will begin—and end—with consideration of the first

question.

1. Legal Framework

Bostic believes that Parsons and Judge Murray have vio-

lated the United States Constitution because their actions—as

supervisors of Radiceski—allowed the rape to occur. She uses

the phrase “supervisory liability” to describe her theory, but

the Supreme Court has told us that this label “is a misnomer.”

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). That’s because, under

Iqbal, a supervisor is liable for money damages only for his or

her own misconduct. Id. at 676. They “may not be held liable

12 No. 23-1665

for the unconstitutional conduct of their subordinates under

a theory of respondeat superior.” Id. Our focus, then, is on what

the supervisors did wrong—and not on Radiceski’s misdeeds.

See id.; see also Hess, 72 F.4th at 767–68.

How, exactly, liability for supervisors works in the wake

of Iqbal is still somewhat unsettled. See, e.g., William N. Evans,

Supervisory Liability in the Fallout of Iqbal, 65 SYRACUSE L. REV.

103, 106 (2014) (describing post-Iqbal caselaw on this issue as

“a muddled mess”). Perhaps it’s not a surprise, then, that the

parties present to us differing standards to apply in this case,

neither of which is completely satisfactory. So, we start by

providing a roadmap that synthesizes how our court has ap-

proached this topic.

To ensure that supervisors are being held liable only for

their own actions, we have insisted on two requirements. See

Stockton v. Milwaukee County, 44 F.4th 605, 619 (7th Cir. 2022).

First, the supervisor must have been personally involved in

the constitutional violation. Id.; Backes v. Vill. of Peoria Heights,

662 F.3d 866, 869–70 (7th Cir. 2011). This does not necessarily

require that the supervisor directly participate in the depriva-

tion, but it does mean that there needs to be a connection be-

tween the supervisor’s action or inaction and the violation at

issue. Backes, 662 F.3d at 689–70; see also Arnett v. Webster, 658

F.3d 742, 757 (7th Cir. 2011). Second, if there is sufficient per-

sonal involvement, then the supervisor must have also had

the necessary state of mind. E.g., Locke v. Haessig, 788 F.3d 662,

669 (7th Cir. 2015). The second inquiry will vary depending

on the constitutional provision at issue. Id.

No. 23-1665 13

a. Personal Involvement

Liability for supervisors is individual, not vicarious. For

that reason, simply being atop an organizational food chain

does not make a supervisor liable for a subordinate’s uncon-

stitutional conduct. E.g., Doe v. Purdue Univ., 928 F.3d 652,

664–65 (7th Cir. 2019) (affirming dismissal of claim against

university president because there was no allegation that he

knew about the conduct at issue, “much less that he facili-

tated, approved, or condoned it”); Brown v. Randle, 847 F.3d

861, 865 (7th Cir. 2017) (affirming dismissal of claim against

prison warden because plaintiff did not contend that warden

“had anything to do with the timing of his visits to the uni-

versity health center”); Vinning-El v. Evans, 657 F.3d 591, 592

(7th Cir. 2011) (reversing denial of summary judgment of

claim against prison warden because plaintiff “does not con-

tend that [the warden] made or ratified the decision about his

diet”).

Instead, for there to be personal involvement, there must

be at least “some causal connection or affirmative link be-

tween the action complained about and the official sued.”

Arnett, 658 F.3d at 757 (quoting Gentry v. Duckworth, 65 F.3d

555, 561 (7th Cir. 1995)). In other words, the supervisor must

have either caused or participated in the constitutional depri-

vation at issue. Milchtein v. Milwaukee County, 42 F.4th 814, 824

(7th Cir. 2022); Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996).

b. State of Mind

Even if a supervisor was personally involved in a consti-

tutional violation, she still must have acted with the necessary

state of mind to be liable. The factors necessary to hold a su-

pervisor liable “depend upon the constitutional provision at

14 No. 23-1665

issue, including the state of mind required to establish a vio-

lation of that provision.” Perez v. Fenoglio, 792 F.3d 768, 781

(7th Cir. 2015); Iqbal, 556 U.S. at 676.

When a plaintiff pursues a substantive due process theory,

the requisite state of mind is deliberate indifference. See Vance

v. Rumsfeld, 701 F.3d 193, 204 (7th Cir. 2012) (en banc) (apply-

ing deliberate-indifference standard in supervisory liability

case with substantive due process theory). That’s because the

“deliberate-indifference standard … is the general standard

applicable to claims arising under substantive due process.”

Martinez v. Santiago, 51 F.4th 258, 262 (7th Cir. 2022) (citing

cases). Deliberate indifference is also the right standard when

supervisors are accused of imposing unconstitutional condi-

tions of confinement in violation of the Eighth Amendment.

Haywood v. Hathaway, 842 F.3d 1026, 1033 (7th Cir. 2016).

In other scenarios, however, deliberate indifference is not

required. One such example is in the equal protection context:

A plaintiff who was fired because of her race must show that

the supervisor who facilitated her termination had “the spe-

cific intent to discriminate” because “the state of mind of pur-

poseful discrimination is an element of the violation.” Locke,

788 F.3d at 669 (citing Iqbal, 556 U.S. at 676); T.E. v. Grindle, 599

F.3d 583, 588 (7th Cir. 2010) (same). Another example is when

a supervisor allegedly failed to protect a pretrial detainee in

jail: The supervisor must have acted in an objectively unrea-

sonable manner before liability attaches under this Four-

teenth Amendment theory. Kemp v. Fulton County, 27 F.4th

No. 23-1665 15

491, 498 (7th Cir. 2022) (“Kingsley’s objective-unreasonable-

ness test applies equally to supervisory-liability claims.”). 7

Because Bostic pursues a general substantive due process

theory in this case, we focus on the relevant standards for de-

liberate indifference. See Martinez, 51 F.4th at 262. A govern-

ment official is deliberately indifferent in this context if he

“had actual knowledge of impending harm which he con-

sciously refused to prevent.” Hill v. Shobe, 93 F.3d 418, 421 (7th

Cir. 1996). This standard has two main components. The first

is knowledge: the official must have “sufficient knowledge of

the danger that one can infer he intended to inflict the result-

ant injury.” Id. This inquiry focuses on what the official

knows, not on what he should have known. Id.; Rumsfeld, 701

F.3d at 204. The second component is the conscious refusal to

prevent the known risk of harm. Incompetence, negligence,

and official irresponsibility do not violate the due process

clause. Hill, 93 F.3d at 421; Martinez, 51 F.4th at 262; West v.

Waymire, 114 F.3d 646, 647 (7th Cir. 1997). Instead, a plaintiff

must show that the official made a deliberate decision that

7 Part of the parties’ understandable confusion stems from the fact that,

prior to the Supreme Court’s decision in Iqbal, “most circuits required that

a supervisor act (or fail to act) with the state of mind of deliberate indif-

ference to be liable, no matter the underlying constitutional violation.”

Locke, 788 F.3d at 669 (citing Evans, Supervisory Liability, supra, at 117–18 &

n.41). Indeed, at least some of our pre-Iqbal precedent seems to say this as

well. Id. at 669–70 (citing, among others, Nanda v. Moss, 412 F.3d 836, 842

(7th Cir. 2005)). It’s clear now that deliberate indifference is not the de facto

state of mind for supervisors to be held liable, but can be the correct intent

in certain contexts, like our case. See Rumsfeld, 701 F.3d at 204; see also

Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010) (noting that delib-

erate indifference can, in some circumstances, still be enough for a super-

visor to be liable under § 1983—if deliberate indifference is the “state of

mind required for the constitutional deprivation” at issue).

16 No. 23-1665

allowed a constitutional violation to take place. Hill, 93 F.3d

at 421.

With these standards in mind, we take up Bostic’s argu-

ments on appeal. 8

2. Discussion

Bostic argues that Parsons and Judge Murray’s actions—

most importantly, allowing Radiceski to supervise female

probationers after learning of his prior sexual misconduct—

subjected them to liability under § 1983. Though we agree that

8 Some of our cases frame the test for supervisory liability a little differ-

ently than we have. One common refrain is that a supervisor can be liable

if they “know about the conduct and facilitate it, approve it, condone it, or

turn a blind eye for fear of what they might see.” Backes, 662 F.3d at 870

(citation omitted). This test, we have said, is another way of saying that

supervisors must “act either knowingly or with deliberate, reckless indif-

ference” to incur liability. Id. (citation omitted).

This formulation, however, predates the Supreme Court’s opinion in Iqbal,

which established that showing deliberate indifference is not always

enough to establish liability for supervisors. Locke, 788 F.3d at 669–70 (de-

scribing impact of Iqbal on necessary state of mind for § 1983 supervisory

liability); see Jones v. City of Chicago, 856 F.2d 985, 992–93 (7th Cir. 1988)

(first usage of test); see also Iqbal, 556 U.S. at 694–95 (SOUTER, J., dissenting)

(describing the test as an option for supervisory liability that the majority

decided not to adopt); Dodds, 614 F.3d at 1196–98 & n.5 (stating that this

test reflects a pre-Iqbal understanding of supervisory liability).

Because this test implies that deliberate indifference is always enough to

impose liability on a supervisor, we opt not to use it here. Of course, the

standard is still sometimes accurate—like when deliberate indifference is

enough to impose liability, see Gill v. City of Milwaukee, 850 F.3d 335, 344

(7th Cir. 2017) (using standard in substantive due process context)—but it

is not always the most precise. So, we caution courts to examine the un-

derlying constitutional theory and ensure that deliberate indifference is

enough to impose liability on the supervisor before using this standard.

No. 23-1665 17

Parsons and Judge Murray were personally involved, we con-

clude that they did not act with deliberate indifference. (Both

sides argue that the liability of Parsons and Judge Murray is

intertwined, so we consider their liability in tandem.) Their

actions may have been unwise, but they did not behave in a

way that allows for the inference that they acted with deliber-

ate indifference.

a. Personal Involvement

To start, we can easily conclude that Parsons and Judge

Murray were personally involved in the alleged constitu-

tional violation at issue. Bostic is not attempting to hold them

vicariously liable for Radiceski raping her; instead, her claim

revolves around the choices of Parsons and Judge Murray

that allowed Radiceski to continue supervising female proba-

tioners and the rape to happen. Because of that, we find Bostic

demonstrated their personal involvement, as there is at least

“some causal connection … between the action complained

of”—Radiceski’s rape—and “the official[s] sued.” Arnett, 658

F.3d at 757.

This case is therefore dissimilar to cases like Doe v. Purdue

University, 928 F.3d at 664–65. There, we held that a university

president was not personally involved in a decision to sus-

pend a student because of alleged sexual violence. Id. Because

the president did not even have knowledge of the situation,

he could only be sued under a vicarious liability theory,

which is not allowed. See id. Here, on the other hand, Bostic

attempts to hold Parsons and Judge Murray liable for their

own actions—not for anyone else’s.

18 No. 23-1665

b. State of Mind

Even though Parsons and Judge Murray were personally

involved, they have not committed a constitutional violation

unless the evidence shows that they acted with a sufficiently

culpable state of mind. See Iqbal, 556 U.S. at 676. Because Bos-

tic has chosen a substantive due process theory to form the

basis of her case, we must determine whether Parsons and

Judge Murray’s actions amounted to—at minimum—deliber-

ate indifference. Martinez, 51 F.4th at 262.

Bostic asserts that the evidence shows that they knew that

Radiceski was a danger to female probationers, yet they as-

signed him to supervise her anyway. Because of their deliber-

ate indifference to the danger that Radiceski posed, Bostic ar-

gues, she was sexually harassed, sexually assaulted, and

eventually raped.

Recall that a government official is deliberately indifferent

only if he or she “had actual knowledge of impending harm

which he consciously refused to prevent.” Hill, 93 F.3d at 421.

Because this standard requires that the official have “suffi-

cient knowledge of the danger that one can infer he intended

to inflict the resultant injury,” id., we must start by analyzing

what Parsons and Judge Murray knew about Radiceski.

Most prominently, the pair knew about a mid-2011 report

from A.R., the female probationer who alleged that Radiceski

led her to a secluded stairwell and told her to lift her shirt and

lower her pants to reveal her tattoos. A.R. also alleged that

Radiceski personally moved her clothes to reveal the same tat-

toos. This was the extent of their knowledge about that inci-

dent, however, because they were unable to discover a video

recording of the incident, and Radiceski denied the

No. 23-1665 19

allegations. Parsons also knew that Radiceski once persis-

tently asked to oversee a female probationer who had some

mental health issues.

In regards to Bostic, however, neither Parsons or Judge

Murray were aware of Radiceski’s inappropriate contact with

her leading up to the rape as Bostic—understandably—did

not report the incidents to anyone in the probation office,

given that she believed that they were “all friends.”

The information they did have, though troubling, is not

enough to put Parsons and Judge Murray on actual notice of

the risk that Radiceski would eventually grope and rape Bos-

tic. Parsons and Judge Murray seem to have been aware of a

risk that Radiceski would act inappropriately toward women,

but no reading of the evidence—even in Bostic’s favor—re-

veals that they had the necessary knowledge that he was

likely to rape a probationer. See Hill, 93 F.3d at 421–22; West,

114 F.3d at 651–52. After all, they knew of no other complaints

involving Radiceski, and of those they knew, none alleged

such violative conduct. See Rumsfeld, 701 F.3d at 204 (noting

that to show deliberate indifference, a plaintiff must show a

public official knew of risks with sufficient specificity).

Our opinion in Hess v. Garcia is instructive. 72 F.4th at 768.

In Hess, a chief of police knew about accusations that an of-

ficer had “act[ed] inappropriately ‘with females.’” Id. Despite

this knowledge, he let the officer lead a ride-along with a sev-

enteen-year-old girl. Id. at 757, 768. The officer then sexually

assaulted and harassed the girl. Id. at 757. We held that the

police chief’s inaction, in the face of that minimal level of

knowledge, was not enough to impose liability. Id. at 768. So

too here.

20 No. 23-1665

Even if we assumed that Parsons and Judge Murray knew

that Radiceski posed a risk of sexually assaulting and raping

female probationers, their response—though far from per-

fect—does not rise to the level of deliberate indifference. In

response to A.R.’s report, they investigated by consulting

with security and interviewing both Radiceski and A.R. her-

self. They then placed Radiceski on a significant restriction,

barring him from supervising women for more than a year.

To be deliberately indifferent, an official must have acted

in a way that revealed a deliberate choice to allow a constitu-

tional violation to happen. Hill, 93 F.3d at 421. The actions of

Parsons and Judge Murray, however, show that they took the

risk seriously, at least to some extent. They investigated and

implemented a male-only restriction on Radiceski that was

seemingly unprecedented within the probation department.

To be sure, they could have done more. Eventually, Par-

sons and Judge Murray relaxed their stance and allowed Ra-

diceski to supervise women again, leading to this reprehensi-

ble conduct. But bad, negligent, or irresponsible decisions like

these, without more, are not unconstitutional. Martinez, 51

F.4th at 262; West, 114 F.3d at 647, 650.

“Under our cases, the possibility that [a government offi-

cial] could have done more does not evince deliberate indif-

ference.” Hunter v. Mueske, 73 F.4th 561, 567 (7th Cir. 2023).

Under Bostic’s view, the only way that Parsons and Judge

Murray could have avoided liability here is by firing Radi-

ceski or permanently barring him from overseeing women.

“The existence or possibility of other better policies which

might have been used,” however, “does not necessarily mean

that the defendant was being deliberately indifferent.” Frake

v. City of Chicago, 210 F.3d 779, 782 (7th Cir. 2000).

No. 23-1665 21

Because Parsons and Judge Murray were not deliberately

indifferent, they are entitled to qualified immunity.

III. CONCLUSION

This is a tragic case, but the only liability is with Radiceski.

Parsons and Judge Murray could have done more to prevent

Radiceski’s abuse of authority, but their behavior did not rise

to a level of deliberate indifference. So, they did not violate

Bostic’s constitutional rights. With these closing remarks, we

AFFIRM the district court’s grant of summary judgment.