Dawn Crawford v. John Tilley

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0236p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DAWN CRAWFORD, in her capacity as Administratrix ┐

of the Estate of Marc Crawford, │

Plaintiff-Appellee, │

│

> No. 20-6391

v. │

│

│

JOHN TILLEY, individually and in his official capacity │

as Secretary of the Justice & Public Safety Cabinet, et │

al., │

Defendants, │

│

JAMES ERWIN, individually, │

│

Defendant-Appellant.

│

┘

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:18-cv-00623—Claria Horn Boom, District Judge.

Argued: July 29, 2021

Decided and Filed: October 8, 2021

Before: GRIFFIN, LARSEN, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Brett R. Nolan, OFFICE OF THE KENTUCKY ATTORNEY GENERAL,

Frankfort, Kentucky, for Appellant. Jessica K. Winters, THE WINTERS LAW GROUP LLC,

Lexington, Kentucky, for Appellee. ON BRIEF: Brett R. Nolan, Heather L. Becker, OFFICE

OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellant. Jessica

K. Winters, THE WINTERS LAW GROUP LLC, Lexington, Kentucky, for Appellee.

No. 20-6391 Crawford v. Tilley, et al. Page 2

_________________

OPINION

_________________

NALBANDIAN, Circuit Judge. Marc Crawford died in Kentucky’s prisons less than a

month after police arrested him. His widow, Dawn Crawford, sued under 42 U.S.C. § 1983 on

behalf of his estate. She claims multiple state officials and private companies failed to provide

Marc with medical treatment while he was in their care.

This appeal is not about the state officials and private companies that directly rendered

(or did not render) medical care for Marc while he was in state custody. Instead, it is about

defendant James Erwin, then Kentucky’s Acting Commissioner of the Department of

Corrections. Dawn’s complaint asserted, under a theory of supervisory liability, that Erwin

violated Marc’s Eighth Amendment1 right to be free from “cruel and unusual punishments.”

Erwin moved to dismiss the claim, asserting qualified immunity. Dawn then amended her

complaint, and Erwin filed an updated motion to dismiss. The district court rejected Erwin’s

qualified immunity defense and denied his motion. Erwin appealed. We REVERSE and

REMAND the case with instructions that the district court dismiss the claims against Erwin.

I.

Kentucky police arrested Marc on May 25, 2017 and took him to the Madison County

Detention Center (“MCDC”). Dawn witnessed his arrest. She told the police that her husband

had lung cancer and would thus need immediate medical attention. Marc’s medical records also

stated that he had a blood clot in his left leg.

Kentucky contracts with private companies to provide its inmates with healthcare. Dawn

names two of these companies, Southern Health Partners, Inc. and Correct Care Solutions LLC,

as defendants. Both were responsible for Marc’s medical care while he was in custody.

According to Dawn, the companies offer constitutionally inadequate healthcare, in part because

1On the face of the amended complaint, it is not clear that Marc had ever been convicted of a crime. Thus,

he may have been a pretrial detainee rather than a convicted prisoner. But Plaintiff has pleaded and argued this case

solely under the Eighth Amendment standard, so we will apply that.

No. 20-6391 Crawford v. Tilley, et al. Page 3

licensed practical nurses, rather than doctors or more experienced nurses, provide much of the

care. She specifically alleges that Marc’s intake screening and later assessments were

inadequate.

The medical staff at MCDC provided Marc with minimal care. They removed his pain-

medication patch, placed him on “inappropriate” psychoactive medications, and failed to provide

him with his prescriptions. (R. 44, Am. Compl., PageID 417.) Correct Care refused to honor

Marc’s scheduled chemotherapy appointments while he was in custody. MCDC staff failed to

treat Marc even on occasions when he was vomiting blood. One of the people taking care of

Marc twice tried to get him further medical attention, but more senior staff refused.

Eventually, Marc was transferred to Kentucky State Reformatory (“KSR”) on May 31,

2017. This was done to provide him with better healthcare. He arrived with an elevated heart

rate, difficulty breathing, and swelling in his leg. A nurse practitioner prescribed him breathing

treatments.

Marc’s attorney called KSR after the transfer to check on him. A Correct Care employee

assured the lawyer that Marc “would continue to receive all prescribed medications” and

someone would alert Marc’s family if his condition deteriorated. (Id. at PageID 421.) But

despite Marc’s complaints of pain, healthcare workers withheld his prescribed medication,

breathing treatments, and chemotherapy.

Marc passed away on June 24, 2017, less than a month after his arrest and before prison

staff could arrange for him to see an oncologist. Nobody contacted his family until June 26. The

autopsy revealed that Marc effectively drowned with more than three liters of fluid accumulating

in his lungs. Medical staff would have discovered this fluid if they had administered his

prescribed breathing treatments.

More than two years after Marc’s death, CNN published a report critical of Correct Care.

The news outlet reviewed hundreds of lawsuits against the company and interviewed dozens of

current and former employees. The lawsuits attributed more than seventy deaths to Correct Care.

And doctors who studied a subset of those cases contended that “proper care” could have

No. 20-6391 Crawford v. Tilley, et al. Page 4

prevented about half of the deaths they examined. (Id. at PageID 415.) The amended complaint

does not place any of those lawsuits in Kentucky, let alone at KSR.

During Marc’s detention, James Erwin was the Acting Commissioner of the Kentucky

Department of Corrections. The Department manages Kentucky’s penal, reform, and

correctional institutions. Ky. Rev. Stat. § 196.030. It houses twenty-seven subdivisions, some of

which are prisons, and each of which has its own internal hierarchy. See id. § 196.026. Beneath

the Commissioner, a warden is directly responsible for the management of each institution,

including KSR. Id. § 196.180.

Dawn’s amended complaint alleges a theory of supervisory liability against Erwin for the

deprivations of Marc’s constitutional rights. But it attributes limited activity to Erwin. Dawn

alleges only that Erwin “accepted” Marc’s transfer into KSR and that Erwin “would have been

made aware of [Marc’s] medical conditions” at that time. (R. 44, Am. Compl., PageID 424.)

This meant, per Dawn, that Erwin had “direct involvement in the constitutional violations at

issue.” (Id. at PageID 427.) Less directly, she alleges that he promulgated and maintained some

of KSR’s allegedly unconstitutional policies and customs.

At the same time, Dawn attributes significant knowledge to Erwin. She alleges that

Erwin was “specifically aware that Correct Care” had a pattern of failing to “provide inmates

with adequate medical and mental health care.” (Id. at PageID 412.) And yet he did nothing in

response to their “over-reliance on [licensed practical nurses].” (Id. at PageID 411; see id. at

PageID 428.) Erwin’s knowledge allegedly came from three sources: ongoing litigation against

prisoners and the estates of deceased prisoners, “critical investigations,” and “the obviousness of

the problems.” (Id. at PageID 411, 425, 428.)

This appeal is about Erwin’s qualified immunity. That issue turns on whether Dawn

“plead[ed] factual matter that, if taken as true, states a claim that [Erwin] deprived [Marc] of his

clearly established constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009). So we

must decide whether the acts and omissions attributed to Erwin in the amended complaint show

his supervisory liability under clearly established precedent.

No. 20-6391 Crawford v. Tilley, et al. Page 5

But this case also arrives with a strange procedural history, which Dawn argues deprives

us of our jurisdiction. We address this jurisdictional argument first.

II.

Erwin’s argument in favor of our jurisdiction is straightforward. Dawn filed her amended

complaint on June 22, 2020. Erwin moved to dismiss, in part, based on qualified immunity. On

November 25, 2020, the district court granted that motion in part, but denied it as to the Eighth

Amendment claim on appeal. Erwin timely filed his notice of appeal two weeks later, on

December 9, 2020. So his appeal is timely, and we have jurisdiction to resolve it.

Dawn’s argument to the contrary focuses on filings related to her original complaint,

which she filed on November 26, 2018. Erwin moved to dismiss based on qualified immunity.

But before the district court decided Erwin’s motion, Dawn moved to amend her complaint. Her

motion included a draft of her tendered amended complaint. Erwin opposed that motion, arguing

that the tendered amended complaint would be futile and prejudicial because it was untimely.

The district court rejected Erwin’s argument and granted Dawn’s motion for leave to amend. In

that same order, however, it also raised and rejected the qualified immunity argument that Erwin

had made in response to the original complaint as though Erwin made a qualified immunity

argument in response to Dawn’s tendered amended complaint. The district court ultimately

granted Dawn’s motion to amend her complaint and denied as moot Erwin’s motion to dismiss

Dawn’s original complaint. That order came down on June 8, 2020. Erwin did not appeal within

the 30-day window allowed by 28 U.S.C. § 2107; see also Fed. R. App. P. 4(a).

Compliance with § 2107 is “mandatory and jurisdictional.” Bowles v. Russell, 551 U.S.

205, 208–10 (2007). Rule 4(a) carries § 2107 into practice and provides that, subject to

exceptions not applicable here, the notice of appeal “must be filed . . . within 30 days after entry

of the judgment or order appealed from.” Fed. R. App. P. 4(a); see Bowles, 551 U.S. at 209.

Generally, the appeal comes from a district court’s final decision. See 28 U.S.C. § 1291. And “a

district court’s order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding

is a ‘final decision’ within the meaning of § 1291.” Iqbal, 556 U.S. at 672.

No. 20-6391 Crawford v. Tilley, et al. Page 6

Dawn argues that Erwin’s failure to appeal the district court’s earlier order prevents him

from appealing the later order denying his motion to dismiss Dawn’s amended complaint.

(Appellee’s Br. at 16–17.) She is wrong for at least two reasons.

First, the district court adjudicated Erwin’s later motion to dismiss on its merits and as an

original matter. The district court did not convert Erwin’s second motion to dismiss into a

motion for reconsideration, despite Dawn’s suggestion to this effect. Rather, the district court

granted the 12(b)(6) motion on two of the three counts in the amended complaint, styling its

order as “grant[ing] in part and deny[ing] in part” Erwin’s motion. (R. 65, Nov. 25, 2020 Op. &

Order, PageID 649.) As noted above, defendants can appeal the denial of a Rule 12(b)(6) motion

raising qualified immunity. Iqbal, 556 U.S. at 672.

Second, until Erwin pleaded qualified immunity in his motion to dismiss the amended

complaint, he had not raised qualified immunity in response to that complaint. “Once an

amended pleading is interposed, the original pleading no longer performs any function in the

case.” 6 Arthur R. Miller, Mary Kay Kane & A. Benjamin Spencer, Federal Practice &

Procedure § 1476 (3d ed. 2021). The general rule is that filing an amended complaint moots

pending motions to dismiss. See Pettaway v. Nat’l Recovery Sols., LLC, 955 F.3d 299, 303–04

(2d Cir. 2020) (per curiam); Ramirez v. County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir.

2015); Mandali v. Clark, No. 2:13-cv-1210, 2014 WL 5089423, at *1 (S.D. Ohio Oct. 9, 2014).

Alternatively, district courts may exercise their discretion and apply a pending motion to dismiss

to portions of an amended complaint that are “substantially identical to the original complaint.”

See Mandali, 2014 WL 5089423, at *2 (cleaned up); see also Pettaway, 955 F.3d at 303–04.2

But Dawn’s tendered amended complaint substantially revised her original complaint.

These revisions included new allegations against Erwin. For example, the amended complaint

alleges that Erwin accepted Marc into KSR, that he had constructive notice of Correct Care’s

2In these cases, the trial court’s decision to apply the pending motion to dismiss to the amended complaint

inures to the defendant’s benefit. In effect, trial courts following this practice have determined that the new

complaint failed to cure the defects identified by the motion to dismiss the original complaint. That is not the

situation here.

No. 20-6391 Crawford v. Tilley, et al. Page 7

constitutionally inadequate practices, and that his inaction was a proximate cause of Marc’s

death. Nothing in the original complaint mounted similar allegations.

Undeterred by these discrepancies, the district court rejected Erwin’s initial qualified

immunity argument when it granted Dawn’s motion for leave to file an amended complaint.

This analysis pitted Dawn’s tendered amended complaint against the defense Erwin prepared for

her original complaint. He had not yet developed a qualified immunity argument responding to

Dawn’s new allegations. It is true that the district court ultimately found Erwin’s updated

qualified immunity argument wanting as well. But the district court’s reasoned denial of Erwin’s

qualified immunity defense preserved the parties’ arguments and its reasoning about the

amended complaint for appeal. As Erwin explains, he timely appealed from this denial.

In sum, we reject Dawn’s arguments. Erwin’s appeal was timely. The district court

granted in part and denied in part his motion to dismiss Dawn’s amended complaint, and Erwin

filed his notice of appeal two weeks later. That he didn’t appeal the denial of his qualified

immunity defense against Dawn’s original complaint has no preclusive effect on his appeal from

the denial of his later motion to dismiss. Indeed, that later motion to dismiss was necessary to

tee up Erwin’s operative qualified immunity argument for appeal. We have jurisdiction.

III.

We turn to the substance of Erwin’s qualified immunity defense. Generally,

“government officials are entitled to some form of immunity from suits for damages.” Harlow v.

Fitzgerald, 457 U.S. 800, 807 (1982). So, “government officials” who “perform[] discretionary

functions” receive qualified immunity, which protects them “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Id. at 818. It also protects them from the cost

and burdens of suit, including discovery. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Qualified immunity thus balances “the need to hold public officials accountable when they

exercise power irresponsibly” with “the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231

(2009).

No. 20-6391 Crawford v. Tilley, et al. Page 8

Although a defendant ordinarily bears the burden of proof for an affirmative defense, a

plaintiff bears the burden of overcoming qualified immunity. See Mitchell, 472 U.S. at 526.

“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a

defendant pleading qualified immunity is entitled to dismissal before the commencement of

discovery.” Id. “[O]fficers are entitled to qualified immunity under § 1983 unless (1) they

violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was

clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)

(quotation mark omitted). We can address these requirements in either order. Pearson, 555 U.S.

at 236. If one is lacking, we need not address the other. And here, Dawn has not pleaded a

constitutional violation.

A.

The Eighth Amendment, as incorporated by the Fourteenth, forbids States from imposing

“cruel and unusual punishments.” U.S. Const. amend. VIII; see Robinson v. California, 370 U.S.

660, 666 (1962). “[T]he treatment a prisoner receives in prison . . . [is] subject to scrutiny under

the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v.

McKinney, 509 U.S. 25, 31 (1993)). And so the Eighth Amendment imposes a duty on prison

officials “to provide medical care for those whom it is punishing by incarceration.” Estelle v.

Gamble, 429 U.S. 97, 103 (1976).

1.

An Eighth Amendment claim of inadequate medical care has both an objective and a

subjective component. See Farmer, 511 U.S. at 832–45. “First, the deprivation alleged must be,

objectively, ‘sufficiently serious.’” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298

(1991)). “For a claim . . . based on a failure to prevent harm, the inmate must show that he is

incarcerated under conditions posing a substantial risk of serious harm.” Id. Second, the official

must have acted with “‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson,

501 U.S. at 302-03). This is a “subjective” inquiry into the defendant’s “state of mind.” See id.

at 838. “[A] prison official cannot be found liable under the Eighth Amendment . . . unless the

official knows of and disregards an excessive risk to inmate health or safety; the official must

No. 20-6391 Crawford v. Tilley, et al. Page 9

both be aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Id. at 837.

Putting that all together, “[a] prison official’s deliberate indifference to a substantial risk

of serious harm to an inmate violates the Eighth Amendment.” Id. at 828.

2.

But here, that’s not all. Dawn’s Eighth Amendment claim against Erwin depends on

Erwin’s supervisory liability. So, on top of the deliberate indifference standard, Dawn’s

complaint must also meet the requirements of supervisory liability in § 1983 cases. Supervisory

liability comprises two concepts important here: active involvement by the supervisor and

causation.

Start with active involvement. “[T]o succeed on a supervisory liability claim, [a plaintiff]

must show that ‘a supervisory official at least implicitly authorized, approved or knowingly

acquiesced in the unconstitutional conduct of the offending subordinate.’” Garza v. Lansing Sch.

Dist., 972 F.3d 853, 865 (6th Cir. 2020) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.

1984)); see also Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (“Plaintiff must

show that the supervisors somehow encouraged or condoned the actions of their inferiors.”); Doe

v. City of Roseville, 296 F.3d 431, 440 (6th Cir. 2002) (encouragement satisfies this

requirement). This “requires some ‘active unconstitutional behavior’ on the part of the

supervisor.” Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (quoting Bass v.

Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)). In short, a plaintiff must plausibly allege that a

supervisory defendant “authorized, approved, or knowingly acquiesced in the unconstitutional

conduct . . . of his subordinates through the execution of his job functions.” Id. at 242.

But supervisory liability also has sharp limits. It will not attach for “a mere failure to

act.” Id. at 241. “[A] supervisor cannot be held liable simply because he or she was charged

with overseeing a subordinate who violated the constitutional right of another.” Id.; see also

Winkler v. Madison County, 893 F.3d 877, 898 (6th Cir. 2018) (“[L]iability cannot be imposed

on a supervisor under § 1983 based on the theory of respondeat superior.”). And supervisory

liability requires more than negligence or recklessness. Garza, 972 F.3d at 866.

No. 20-6391 Crawford v. Tilley, et al. Page 10

Active involvement isn’t the only thing a plaintiff needs to show. There also must be a

“causal connection” between the defendant’s “active unconstitutional behavior” and the

plaintiff’s injuries. Peatross, 818 F.3d at 242; see also 42 U.S.C. § 1983 (extending liability to

any state actor who “subjects, or causes [a person] to be subjected” to a violation of their

constitutional rights). In other words, the defendant’s execution of his job functions must have

caused the plaintiff’s injury. See Peatross, 818 F.3d at 242. The challenged conduct must be

both a cause in fact and a proximate cause of the alleged injury. Garza, 972 F.3d at 868. “Cause

in fact is typically assessed using the ‘but for’ test, which requires us to imagine whether the

harm would have occurred if the defendant had behaved other than he did.” Id. (quoting Powers

v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592, 608 (6th Cir. 2007)) (alteration removed).

On the other hand, “[p]roximate cause is a flexible concept that does not lend itself to a

black-letter rule that will dictate the result in every case.” Crosby v. Twitter, Inc., 921 F.3d 617,

624 (6th Cir. 2019) (quoting Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 654 (2008))

(cleaned up). Proximate cause “‘demand[s] . . . some direct relation between the injury asserted

and the injurious conduct alleged.’” Id. (quoting Bridge, 553 U.S. at 654) (cleaned up). This

ensures a “sufficient link between the defendant’s conduct and the plaintiff’s injuries.” Id. at 623

(citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992)). In supervisory liability cases,

we have drawn this line at the point where the supervisor’s “active unconstitutional conduct”

“could be reasonably expected to give rise to just the sort of injuries that occurred.” Peatross,

818 F.3d at 244 (quoting Campbell v. City of Springboro, 700 F.3d 779, 790 (6th Cir. 2012)).

B.

All that said, we turn next to the motion to dismiss. We review the denial of a motion to

dismiss on qualified immunity grounds de novo. Peatross, 818 F.3d at 239–40. “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “[A] legal conclusion couched as a factual allegation” is

not entitled to a presumption of truth. Id. (quoting Twombly, 550 U.S. at 555). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing

No. 20-6391 Crawford v. Tilley, et al. Page 11

Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and plausibility of entitlement

to relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted). We can

draw upon our “judicial experience and common sense” to decide whether the claims are

“plausible.” Id. at 679. And any “complaint that states a plausible claim for relief survives a

motion to dismiss.” Id.

Our standard of review in these cases warrants more discussion. “There are two steps to

our qualified-immunity inquiry” on appeal from denial of a motion to dismiss. Buddenberg v.

Weisdack, 939 F.3d 732, 738 (6th Cir. 2019). We must “determine whether the facts alleged

make out a violation of a constitutional right.” Id. And also “ask whether the right at issue was

clearly established when the event occurred so that a reasonable officer would have known that

his conduct violated it.” Id. We may answer these questions in any order. Pearson, 555 U.S. at

236.

Admittedly, we sometimes state that “it is generally inappropriate for a district court to

grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” See, e.g., Marvaso v.

Sanchez, 971 F.3d 599, 605–06 (6th Cir. 2020) (quoting Wesley v. Campbell, 779 F.3d 421, 433

(6th Cir. 2015)); In re Flint Water Cases, 960 F.3d 303, 324 (6th Cir. 2020). And the district

court here cited this proposition four times. But that general statement is at best imprecise. To

be fair, most statements of this proposition are careful to explain that its application rests on

qualified immunity’s clearly established prong. See, e.g., Hart v. Hillsdale County, 973 F.3d

627, 635 (6th Cir. 2020); Guertin v. State, 912 F.3d 907, 917 (6th Cir. 2019); cf. Singleton v.

Commonwealth of Kentucky, 843 F.3d 238, 242–43 (6th Cir. 2016). And that’s correct but the

specificity of our opinions varies. So we clarify below.

It is true that courts, including ours, have suggested a basic incongruity between pleading

requirements under Federal Rule of Civil Procedure 8, which require only that a plaintiff state a

claim, and affirmative defenses, like qualified immunity. See, e.g., Siefert v. Hamilton County,

951 F.3d 753, 761–62 (6th Cir. 2020); Jacobs v. City of Chicago, 215 F.3d 758, 774–75 (7th Cir.

2000) (Easterbrook, J., concurring). The idea is that a plaintiff is generally not required to negate

No. 20-6391 Crawford v. Tilley, et al. Page 12

an affirmative defense in a complaint. Jones v. Bock, 549 U.S. 199, 212 (2007) (explaining that

a plaintiff need not plead an affirmative defense in a complaint).

But as we have noted, the validity of such defenses may be apparent from the face of the

complaint, rendering a motion to dismiss appropriate. See Siefert, 951 F.3d at 762. This is, after

all, how we normally adjudicate other affirmative defenses on motions to dismiss. See, e.g.,

Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (statute of limitations); Parks v.

Reans, 510 F. App’x 414, 415 (6th Cir. 2003) (sovereign immunity); Bd. of Trustees of

Painesville Twp. v. City of Painesville, Ohio, 200 F.3d 396, 398 (6th Cir. 1999) (subject matter

jurisdiction). The larger point though is that this possible incongruity does not justify a special

rule or presumption against granting motions to dismiss that applies specifically for qualified

immunity. Cf. Siefert, 951 F.3d at 761 (calling this a “general preference”).

Indeed, the Supreme Court has consistently stated that one of the goals of qualified

immunity is not only to help defendants avoid unnecessary trials but also to allow defendants to

avoid pre-trial discovery where the lawsuit is “insubstantial.” Harlow, 457 U.S. at 808; see also

Mitchell, 472 U.S. at 526; Butz v. Economou, 438 U.S. 478, 507 (1978). And for avoiding

pretrial discovery, “a motion to dismiss is conclusive as to this right.” Behrens v. Pelletier,

516 U.S. 299, 308 (1996). Moreover, in Harlow, the Court reformulated the qualified immunity

test by eliminating the subjective-good-faith requirement precisely because that requirement was

permitting some qualified immunity cases to advance further than they should. 457 U.S. at 814–

15; Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987) (the “driving force behind Harlow’s

substantial reformulation of qualified-immunity principles” was that “insubstantial claims

against government officials be resolved prior to discovery and on summary judgment if

possible.”) (quotation mark omitted).3

3To be sure, the Court, at times, contemplates that summary judgment may be used to resolve a dispute

before pretrial discovery takes place—and that is technically permitted under Rule 56. See Fed. R. Civ. P. 56(b)

(“[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery.”).

And perhaps that is a more viable option now than it was at the time of Harlow given the Court’s later clarification

of the summary judgment standard. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); see also Wyatt v. Cole, 504

U.S. 158, 171 (1992) (Kennedy, J., concurring) (suggesting that Harlow’s reformulation of qualified immunity may

have been unnecessary had Celotex been the summary judgment standard).

No. 20-6391 Crawford v. Tilley, et al. Page 13

Finally, if there is a procedural incongruity here, the Supreme Court has not recognized

it. Or, at least, the Court has not hesitated to affirm the dismissal of a lawsuit on qualified

immunity grounds without mentioning any presumption against doing so. See, e.g., Iqbal,

556 U.S. at 680–82 (plaintiff failed to plead unconstitutional actions); Ashcroft v. al-Kidd, 563

U.S. 731, 744 (2011) (law was not clearly established).

Now, what about applying the two-part inquiry itself: does either prong support a general

preference to not grant motions to dismiss on qualified immunity? Here, it seems apparent, and

consistent with our cases, that no such preference applies to the violation-of-a-constitutional-

right prong. After all, asking whether there was a violation of a constitutional right resembles

the Rule 12(b)(6) question—has the plaintiff pleaded facts that state a claim for relief in the

complaint? More importantly, in Iqbal itself, which, along with Twombly, 550 U.S. 544, are the

leading cases on Rule 12(b)(6), the Supreme Court affirmed the dismissal of the plaintiff’s

complaint on qualified immunity because it failed to establish a plausible claim. See 556 U.S. at

687 (reversing and remanding case because the “respondent’s complaint fails to plead sufficient

facts to state a claim” for a constitutional violation). And, as noted above, nowhere did the

Supreme Court suggest that it was inappropriate to dismiss a complaint on qualified immunity or

that there should be a presumption against it. If there were a presumption or preference against

dismissing the case, we would expect the Court to at least acknowledge it.

But it’s also true that federal court scheduling orders, like the one in this case, typically contemplate a

summary judgment deadline that falls after discovery. And Rule 56(d) allows a party to argue that discovery is

necessary in order to oppose summary judgment. Fed. R. Civ. P. 56(d). Not only that, but many federal judges do

not favor multiple summary judgment motions—at least in some circumstances. See, e.g., Siemens Westinghouse

Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y. 2004) (explaining that courts “do not approve in general

the piecemeal consideration of successive motions for summary judgment because parties ought to . . . present their

strongest case for summary judgment when the matter is first raised.” (quotation marks and alteration removed));

McCabe v. Bailey, No. 05-CV-73, 2008 WL 1818527, at *2 (N.D. Iowa Apr. 4, 2008) (denying a renewed motion

for summary judgment, which asserted qualified immunity, without considering the merits because the officials did

not adhere to the court’s trial management order) (citing Torres v. Puerto Rico, 485 F.3d 5, 10 (1st Cir. 2007)

(holding that a district court can deny a defendant’s dispositive motion, which asserts qualified immunity, if the

defendants ignored the court’s trial management order)); Jackson v. Goord, No. 06-CV-6172, 2013 WL 1560204, at

*5 (W.D.N.Y. Apr. 10, 2013) (denying leave to file a second summary judgment motion because a defendant is not

allowed to bring “a second or successive dispositive motion to correct deficiencies in the original motion.”). So

even though courts have the discretion to consider multiple summary judgment motions, a party might believe that

moving for summary judgment before discovery is not a practical litigation strategy. For this reason, the Court has

also regularly recognized that motions to dismiss are necessary to avoid pretrial discovery. And the modern

formulation of the Rule 12(b)(6) standard, which post-dates the earliest Court statements about the avoidance of

pretrial discovery, makes the motion to dismiss a more viable option now. See Iqbal, 556 U.S. at 678–79; al-Kidd,

563 U.S. at 741–42.

No. 20-6391 Crawford v. Tilley, et al. Page 14

Common sense also proves the point. Imagine a conditions-of-confinement case identical

to the one we face here. But—unlike Erwin—imagine that the hypothetical state defendant

moved to dismiss under 12(b)(6) without raising qualified immunity. We would apply Iqbal to

that motion. So it would be nonsensical, and even ironic, to enforce a presumption against

dismissing the same complaint simply because the defendant has raised qualified immunity as an

affirmative defense. In other words, § 1983 complaints are subject to the same federal rules as

any other complaint. “No heightened pleading requirement applies to our review of a motion to

dismiss based on qualified immunity.” Courtright v. City of Battle Creek, 839 F.3d 513, 518

(6th Cir. 2016) (quotation marks omitted).

This reluctance to dismiss cases on qualified immunity might have more vitality in the

clearly established context, which Iqbal did not cover. But even there, the inquiry is nuanced.

Dismissing for qualified immunity on this ground is sometimes difficult because the clearly

established inquiry may turn on case-specific details that must be fleshed out in discovery.

Seifert, 951 F.3d at 761; see also Guertin, 912 F.3d at 917 (citing Evans-Marshall v. Bd. of Educ.

of Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 234–35 (6th Cir. 2005) (Sutton, J.,

concurring)). And, although Evans-Marshall was in the context of a balancing test, which

normally requires a fact-intensive inquiry, our caselaw has applied Judge Sutton’s sentiment

beyond the balancing analysis. See Hart, 973 F.3d at 635 (collecting cases). This is a natural

development because the application of qualified immunity today can turn on minute factual

distinctions. See, e.g., Latits v. Phillips, 878 F.3d 541, 552–53 (6th Cir. 2017) (distinguishing

the shooting of a suspect in a stopped car before an attempt to flee from the shooting a suspect in

a stopped car after a police chase). Our taser cases are another example. See Shanaberg v.

Licking County, 936 F.3d 453, 459 (6th Cir. 2019) (Nalbandian, J., concurring); see also White v.

Pauly, 137 S.Ct. 548, 552 (2017) (per curiam) (requiring the identification of a case on point

before qualified immunity can be denied).4

4To be sure, drawing fine factual distinctions in these cases has faced criticism but that is how we apply

qualified immunity, so we leave that question to another day. See, e.g., Baxter v. Bracey, 140 S.Ct. 1862, 1864

(2020) (Thomas, J., dissenting from denial of certiorari) (“There likely is no basis for the objective inquiry into

clearly established law that our modern cases prescribe.”).

No. 20-6391 Crawford v. Tilley, et al. Page 15

At the same time, we are cognizant of the Supreme Court’s admonition that we not let a

plaintiff allege rights at such a high level of abstraction that his claim always survives. See

Anderson, 483 U.S. at 640 n.2 (“A passably clever plaintiff would always be able to identify an

abstract clearly established right that the defendant could be alleged to have violated”).

According to the Court, it is a “longstanding principle that clearly established law should not be

defined at a high level of generality.” White, 137 S. Ct. at 552 (quotation marks omitted).

Otherwise, “[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of

virtually unqualified liability simply by alleging violation of extremely abstract rights.” Id.

(quoting Anderson, 483 U.S. at 639). This is especially true under Iqbal and Twombly.

So a complaint distinguishable from our past cases on its face will not often survive a

motion to dismiss on qualified immunity grounds. This is especially true where granting relief to

the plaintiff can only be done by recognizing a novel constitutional right. In al-Kidd, for

example, the Court affirmed the application of qualified immunity where it was apparent from

the complaint that the law was not clearly established because “not a single judicial opinion” had

held the official’s action unconstitutional. 563 U.S. at 741; see also Koch v. Dep’t of Nat. Res.,

Div. of Wildlife, No. 20-3334, 2021 WL 2221644, at *5, 7 (6th Cir. June 2, 2021) (affirming

12(b)(6) dismissal because plaintiff cited no case showing a “clearly established” constitutional

violation).

Mindful of this instruction, we now consider the merits.

IV.

Dawn’s complaint, all told, must clear three hurdles. First, she must allege that someone

Erwin oversees violated Marc’s constitutional rights. Second, she must allege “active

unconstitutional behavior” by Erwin. And third, she must allege that the “active unconstitutional

behavior” was both a cause in fact and a proximate cause of the violation of Marc’s rights.

Dawn has not carried this burden here. Her amended complaint fails both to allege any

“active unconstitutional behavior” by Erwin and to explain how this behavior proximately

caused Marc’s injuries. Thus, Erwin is entitled to qualified immunity on the constitutional

violation prong.

No. 20-6391 Crawford v. Tilley, et al. Page 16

At most, Dawn’s complaint alleges the following: Erwin accepted Marc’s transfer to

KSR. Through that process, Erwin was “made aware” of Marc’s medical conditions. (R. 44,

PageID 424.) Erwin knew that Correct Care’s deficient policies and customs posed risks to

Marc. Erwin never tried to alleviate these risks. And the combination of these actions and

inactions proximately caused Marc’s injuries. That’s it. Even charitably construed, this is all the

activity that Dawn’s amended complaint attributes to Erwin, and it is not enough to survive

Iqbal.

Dawn’s allegations that Erwin knew about Correct Care’s practices at KSR are

conclusory. See Iqbal, 556 U.S. at 678. Recall, Dawn alleged that Erwin knew about Correct

Care’s practices from ongoing lawsuits, critical reporting, and “the obviousness of the problem.”

(Id. at PageID 411, 425, 428.) But the critical reporting she relies on does her no good. CNN

published the report she cites in her amended complaint on June 25, 2019. Blake Ellis &

Melanie Hicken, ‘PLEASE HELP ME before it’s too late’, CNN (June 25, 2019),

https://www.cnn.com/interactive/2019/06/us/jail-health-care-ccs-invs/. Marc passed away more

than two years earlier. So Erwin cannot have learned anything relevant to this amended

complaint from that report.

Dawn’s other claim that the problems at KSR were obvious to Erwin is also insufficient.

In appropriate circumstances, we have attributed knowledge of obvious risks to prison officials.

Stoudemire v. Mich. Dep’t of Corrs., 614 F. App’x 798, 803–05 (6th Cir. 2015) (citing Farmer,

511 U.S. at 842–43); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (same). But those

defendants, both wardens, had day-to-day obligations at their institutions. See Stoudemire, 614

F. App’x at 798; Greene, 361 F.3d at 292. By contrast, Erwin is responsible for twenty-seven

subdivisions within the Department of Corrections. Ky. Rev. Stat. § 196.026. At least twelve of

these are penal institutions, each of which a warden directly manages. See id. §§ 196.026,

196.180. There is no allegation that Erwin regularly visited or received briefing on even some

subset of them. We’ve never attributed knowledge of prison conditions so high up the chain of

command with so little in the way of alleged exposure to those same conditions. So there are not

enough well-pleaded factual allegations to establish that Erwin knew of particular issues related

to Correct Care’s practices at KSR. See Iqbal, 556 U.S. at 664.

No. 20-6391 Crawford v. Tilley, et al. Page 17

That leaves the ongoing lawsuits against Correct Care. The amended complaint provides

no detail on where the alleged lawsuits came from. Rather, it observes that Correct Care was

operating in more than five hundred institutions spread across thirty-four states. Erwin is never

alleged to have read or had reason to know about any of the litigation; Dawn does not allege that

any came from Kentucky generally or KSR specifically. So it is not plausible that Erwin knew

about particular failures to provide adequate healthcare at KSR. See Iqbal, 556 U.S. at 678–79.

There is no suggestion in the amended complaint that Erwin might have learned about

Marc or Marc’s treatment by Correct Care any other way. There is no allegation he attends

meetings or reviews reports about Correct Care’s performance in Kentucky’s prisons. Nor that

he ever spoke to a Correct Care employee, or even to a third party about Correct Care. Nor that

he reviews ongoing litigation against Correct Care (if, indeed, any of that litigation comes out of

Kentucky). In short, there is nothing beyond the allegation that Erwin accepted Marc’s transfer

and was “made aware of [Marc’s] medical conditions” at that time. (R. 44, Am. Compl.,

PageID 424.)

This is not enough to survive 12(b)(6) on an allegation of supervisory liability.

Supervisory liability requires “active unconstitutional conduct” by Erwin. See Peatross,

818 F.3d at 241. But, as explained above, there are no well-pleaded factual allegations that

Erwin knew anything besides that he was approving the transfer of a patient with lung cancer and

blood clots to KSR to facilitate better medical treatment. See Iqbal, 556 U.S. at 679. Without

more, Dawn has not pleaded that Erwin’s acceptance of Marc’s transfer implicitly authorized,

approved, encouraged, or knowingly acquiesced in the alleged violation of Marc’s constitutional

rights. See Peatross, 818 F.3d at 242.

Dawn also has not pleaded that Erwin’s acceptance of Marc’s transfer was a proximate

cause of his injuries. Supervisory liability is generally limited to times when the supervisor had

existing knowledge of the specific type of conduct that led to a plaintiff’s injuries. See Garza,

972 F.3d at 859–65 (teacher’s physical abuse); Peatross, 818 F.3d 237–39 (police department’s

shootings); Campbell, 700 F.3d at 782–84, 790 (K-9 unit’s dog bites). But the amended

complaint does not describe the experience of any past inmates at KSR. And as explained above,

the allegations about Erwin’s knowledge of an existing problem are conclusory and not entitled

No. 20-6391 Crawford v. Tilley, et al. Page 18

to a presumption of truth. See Iqbal, 556 U.S. at 681. Without more, Dawn has not pleaded that

Erwin’s acceptance of Marc’s transfer proximately caused the alleged violation of Marc’s

constitutional rights.

V.

For the reasons above, we REVERSE the district court’s denial of qualified immunity to

Erwin, and REMAND with instructions to dismiss the amended complaint as to him.