Opposition Brief — Taylor v. Barkes, 135 S. Ct. 2042 (2015) (No. 14-939)

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No. 14-939

3n The

Supreme Court of the Anited States.

STANLEY TAYLOR and RAPHAEL WILLIAMS,

Petitioners,

Vv.

KAREN BARKES, ALEXANDRA BARKES,

and BRITTANY BARKES,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

ERIC SCHNAPPER*

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

schnapp@u. washington.edu

G. KEVIN FASIC

KATHERINE R. WITHERSPOON

ANTHONY N. DELCOLLO

COOCH AND TAYLOR, PA.

The Brandywine Building

1000 West St., 10th Floor

Wilmington, DE 19801

(302) 984-3800

Counsel for Respondents

*Counsel of Record

COCKLE LEGAL BRIEFS (800) 725-4064

WWW .COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

Under Estelle v. Gamble, deliberate indifference

to the serious medical needs of prisoners, “(rjegard-

less of how evidenced,” violates the Eighth Amend-

ment. Ashcroft v. Igbal held that a supervisor may be

held liable “for his or her own misconduct.” The

question presented is:

If a prison official exercises his supervisory au-

thority in a manner that constitutes deliberate indif-

ference to the serious medical needs of prisoners, is

that misconduct actionable under section 1983?

TABLE OF CONTENTS

Page

A TTT AAA TREE RET TREE AE i

aaa ielentinliaat 1

TT wii in catditniaisininmiaaiacenniiiaeemiannnietibibidennnnde 1

IIS ss cnsciisciiininhnneebendnitintiniianianniie 2

I i vidninschintinnncenncewtnbeaiiimibenionis 3

III os nse nincrnnsninetndanniendendanniineiies 18

Reasons for Denying The Writ ..........................+. 23

I. There Is No Circuit Conflict Regarding

The Liability Standard for Eighth Amend-

ment Claims Against Supervisors............. 23

A. The Third Circuit Did Not Hold That

Supervisors Can Be Held Liable Under

A Respondeat Superior Theory............ 23

B. The Lower Courts Agree That In

Eighth Amendment Medical Care Cases

Supervisors Can Be Liablefor Policies

Constituting Deliberate Indifference.... 28

II. This Case Is Not An Appropriate Vehicle

for Deciding Any Eighth Amendment

ENEMIES SALES ae aC RIN OW MS CERES 35

as 39

Appendix

Report and Recommendation, District Court

for the District of Delaware, July 27, 2010............ la

Memorandum Opinion, District Court for the

District of Delaware, February 18, 2011.............. 10a

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............... passim

Blank v. Eavenson, 530 Fed.Appx. 364 (5th Cir.

Scioscia cia tceiceechaen cabana aided haeieniehiea 34

Brown v. Callahan, 623 F.3d 249 (5th Cir.

SI inishomeadddonphdanpaiantideietibinainantmnatindiuibiaiiniibndaeneetnns 34

Brown v. Plata, 131 S.Ct. 1910 (2011)............000.000... 37

City of Canton v. Harris, 489 U.S. 378 (1989).......... 34

Comstock v. McCrary, 273 F.3d 693 (6th Cir.

FREE STEN Rt as eee ena ee eT 38

DeShaney v. Winnebago County Dept. of Social

me eee 37

Dodds v. Richardson, 614 F.3d 1185 (10th Cir.

RRS TREE EES, REO RTS RLS SAR ORC SO ce re SON 30, 31

Estate of Pollard v. Hood County, Texas, 579

Fed.Appx. 260 (5th Cir. 2014) ................cceeeeeeeeeeee 34

Estelle v. Gamble, 429 U.S. 97 (1976)........ 2, 30, 35, 37

Franklin v. Curry, 738 F.3d 1246 (11th Cir.

STITT csnsci chases delistciceeestendesceinsadaibeisaaitadieadaeaeahdieesiieadadaipieiiaie 31

Gates v. Texas Dept. of Protective and Regu-

latory Sucs., 537 F.3d 404 (5th Cir. 2008)............. 33

Gordon v. Kidd, 971 F.2d 1087 (4th Cir. 1992)........ 38

Hobart v. Estrada, 582 Fed.Appx. 348 (5th Cir.

| ABST ES ER aaa es RELL ae RR eNO eee 34

TABLE OF AUTHORITIES — Continued

Page

Laganiere v. County of Olmsted, 772 F.3d 1114

a a 34

Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th

ETE REE nee a ae EOL a a 31, 32, 34

Porter v. Epps, 659 F.3d 440 (5th Cir. 2011)............ 34

Sanchez v. Pereira-Castillo, 590 F.3d 31 (list

ARENA SEA. “SEL CUED Ee Le Saree 34

Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) ........... 31

Starr v. County of Los Angeles, 659 F.3d 850

EER eet a een ee 31

T.E. v. Grindle, 593 F.3d 583 (7th Cir. 2010)........... 28

Tittle v. Jefferson County Commission, 10 F.3d

Lg ERTS a ae enone eee 38

Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.

ESERIES RE anes Sn ee OT ne tee 28, 29

Vance v. Rumsfeld, No. 12-976, 2013 WL

a eelinliinnlarionnl 29

West v. Atkins, 487 U.S. 42 (1988) ...........0.000..00.e eee 37

Whitson v. Stone County Jail, 602 F.3d 920

TESS eer Oe Sen 31

Whitt v. Stephens County, 529 F.3d 278 (5th

EE Cee ee a 38

Winston v. City of Shreveport, 390 Fed.Appx.

Ey HII ccensinhinseniinammnniabaniindiebadianidanilie 34

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

Eighth Amendment, Constitution of the United

SEE icnisecasisdenecsnmennntinnnstetenssotenstemnmerenensonin passim

STATUTES

I Se CIEE sipciesidnciciescnmencindicnsnciniasmumpicninneisie passim

Del. Code Ann., tit. 24, § 1902(m)......................ssecees 13

BRIEFS

Brief for the Respondent in Opposition, Vance

es Ss Pe icccietineccnscntdccsotsiescncmninsntancdee 29

OPINIONS BELOW

In addition to the opinions set out in the Appen-

dix to the petition, the February 18, 2011 Memoran-

dum Opinion of the District Court is set out at pp.

10a-18a of the Appendix to this brief. The July 27,

2010 Report and Recommendation of the Magistrate

Judge, is set out at pp. la-9a of the Appendix to this

brief.

STATEMENT

There is less to this case than meets the eye.

The first question set out in the petition is

whether in a section 1983 action supervisory officials

are strictly liable for the constitutional violations of

anyone whom they oversee, even if those officials

themselves engaged in no misconduct of their own.

The Court of Appeals below, however, expressly re-

jected respondeat superior vicarious liability. Peti-

tioners maintain that the district court erred in

holding that in this case there was sufficient evidence

of personal misconduct on the part of the defendant

supervisory officials. But this is an interlocutory

appeal, and appellate courts in such cases have no

jurisdiction to review district court decisions regard-

ing the sufficiency of the evidence. Johnson v. Jones,

515 U.S. 304 (1995).

The second question presented in the petition con-

cerns the standard governing claims that the medical

care provided to an inmate was unconstitutionally

inadequate under Estelle v. Gamble, 429 U.S. 97

(1976). The petitioners ask this Court to decide

whether jails and prisons have a general obligation to

screen all incoming inmates to detect those who

might be at risk of suicide. But that question is not

presented by this case. Here the prison medical

officials did administer such a screen, and had actual

knowledge that the decedent presented such a risk.

The lower courts agree that where the risk of suicide

is thus known, the Eighth Amendment requires the

institution to provide constitutionally adequate care.

The District Court concluded that there was sufficient

evidence to permit a finding of deliberate indifference

in the denial of adequate care to the decedent, and its

decision is not subject to review in this interlocutory

appeal.

Legal Background

The Eighth Amendment requires prisons and

jails to provide medical care for those in their custody.

“(T]he government| ] [is] obligat[ed] to provide medi-

cal care for those whom it is punishing by incarcera-

tion. An inmate must rely on prison authorities to

treat his medical needs; if the authorities fail to do so,

those ends will not be met.” Estelle v. Gamble, 429

U.S. 97, 103 (1976). “(Deliberate indifference to serious

medical needs of prisoners [is] ... proscribed by the

Eighth Amendment.... Regardless of how evidenced,

deliberate indifference to a prisoner’s serious illness

or injury states a cause of action under § 1983.” Jd.

104 (quoting Gregg v. Georgia, 428 U.S. 153, 173

(1976)).

Every circuit to address the issue has concluded

that this constitutional requirement applies to pro-

tecting inmates from the danger of suicide, a risk

which may arise from mental illness or various

physical conditions. As the court below explained, “[a]

serious medical need may exist for psychological or

psychiatric treatment, just as it may exist for physi-

cal ills. A psychological or psychiatric condition can be

as serious as any physical pathology or injury, espe-

cially when it results in suicidal tendencies.” Pet.App.

40a n.13.

Petitioners do not question the applicability of

Estelle to the medical needs of inmates who are at

risk of suicide. This case presents a fact-bound appli-

cation of that well-established constitutional rule.

Factual Background

(1) Christopher Barkes was an inmate whose

history of mental illness and attempted suicide was

well documented in the records of the Delaware

Department of Corrections (“DOC”). On November 13,

2004, he was arrested for violation of probation, and

taken to the Howard R. Young Correctional Institu-

tion (““HRYCI”) in Wilmington. The next morning

Barkes committed suicide by hanging himself in his

cell. This was his fourth suicide attempt, and his

second attempt at HRYCI itself.

It is undisputed that Barkes’s mental illness was

known at the time. The intake worker at the prison

noted on forms filled on November 13 that Barkes

had a history of bipolar disorder, sometimes referred

to as manic depression, and that he had a “psychiat-

ric history.” Intake forms prepared that day also

detailed the psychoactive medication that Barkes was

taking, Seroquel and Depakote, both commonly pre-

scribed for bipolar disorder, and Effexor, an antide-

pressant.”

Counsel for the defendant acknowledged in the

court below that the worker “who did the intake

screening knew that [Barkes] was already a suicide

risk.” Barkes clearly informed the intake worker that

he had attempted suicide in the past, and that history

is noted on two different intake forms.‘ Barkes specif-

ically told the intake official, at the least, that in 2003

— a year before — he had attempted to kill himself.

There is a dispute as to whether the intake worker

asked Barkes for information about all suicide at-

tempts.*

’ Third Circuit Joint Appenaix (“J.A.”) 348, 352, 354, 398,

399.

* J.A. 346, 355, 396.

* Third Circuit Tr., p. 27.

* JA. 299, 346.

* The relevant portion of the “Standard Intake Screening

Form,” which Barkes apparently filled out, asked only that he

check either “yes” or “no” to a question, “Have you ever attempted

suicide?” J.A. 346. The relevant portion of the “Adult Intake

‘Continued on following page)

It is undisputed that Barkes had attempted to

commit suicide on three occasions other than in 2003,

once in 1997, and twice on September 10, 2004, only

65 days before he killed himself at HRYCI. In 1997,

while incarcerated at HRYCI itself, Barkes attempted

suicide by hanging; that suicide attempt was docu-

mented in the prison’s medical records.* In September

2004, Barkes repeatedly attempted to kill himself,

first by taking a drug overdose and then “by wrap-

ping [an] IV cord around [his] neck.” Those two

attempted suicides were described in Barkes’ proba-

tion records. Subsequently, according to those proba-

tion records, Barkes was for a period “committed to

[the] Delaware Psychiatric Center.” But when Barkes

was arrested and returned to custody at HRYCT on

November 13, 2003, the intake worker, adhering to

the governing medical intake procedures, did not

review either Barkes’ prison medical records or Barkes’

Mental Health Screening [Form],” which was filled out by the

intake worker, instructed the worker to check either “yes” or

“no” with regard to the question “Has previous suicide been

attempted?” Apparently in response to the instruction, “note

method,” the intake worker wrote in a small comment box

“Overdose 2003.” J.A. 299. The petition speculates that the

worker specifically asked Barkes for information about ail

previous suicide attempts, and that Barkes lied and indicated

that the 2003 overdose was his only attempt. Pet. 6. The more

plausible interpretation of the document, however, is that the

worker never asked that question — because the form does not

call for such information.

* J.A. 253.

" J.A. 261.

probation records, even after learning of Barkes’

history of mental illness and attempted suicide.

In addition, less than a year before Barkes’

suicide at HRYCI, his wife had telephoned Barkes’

probation officer and expressly warned him that

Barkes was suicidal. The probation officer reported

that warning in Barkes’ written probation records,

recour:ting that Mrs. Barkes “thinks [Mr. Barkes] is

going to kill himself.” In February 2004, Barkes’

probation officer himself wrote a memorandum

warning that Barkes was “a threat to himself.” When

Barkes subsequently called his wife from HRYCI and

again indicated he was suicidal, Mrs. Barkes believed

that the prison was a place where he would be safe,

because state officials knew about his prior suicide

attempts and because his probation officer knew that

Barkes was suicidal.”

But “[djespite Barkes’s extensive history of

mental health problems and multiple suicide at-

tempts (including one at the very prison where he

was being held, and two a mere 65 days before his

death), the [intake worker] who performed his intake

did not place him on even the lowest level of suicide

watch.” Pet.App. 47a. Barkes was placed in a cell by

himself, without any suicide precautions, and commit-

ted suicide the next morning. Barkes killed himself by

* JA. 279.

* J.A. 293, 296.

* JA. 620.

hanging, the same method that he had used in his

suicide attempts at HRYCI and at a hospital in

September 2004.

When Barkes’ lifeless body was taken to a nearby

hospital, a medical official at HRYCI sent to

the hospital a “Consultation Request” form, describ-

ing the “Reason for Referral” as “@Pulse, 0

Res[piration].” On the portion of the form to print the

“(Medical] Provider’s Name,” a prison medical official

wrote “Nurse Jackie.” Nurse Jackie is the title

character in a television series on the Showtime

network.

(2) The fatal handling of Barkes’ incarceration

was not the result of a discretionary misjudgment on

the part of the intake worker involved; to the contra-

ry, the worker was doing precisely as he had been

directed under the established intake procedures. It

was those controlling procedures, not any choices

made by the intake worker, that were fatally flawed.

Medical care in the Delaware correctional system

in the period in question was contracted out to a

private firm, First Correctional Medicine (“FCM”).

Pet.App. 6a. The medical aspect of the intake process

was governed by two forms (which included certain

instructions) that had bee developed by FCM. The

first, a “Standard Intake Screening Form,” was

apparently used for all new inmates. The portion of

" JA. 350.

that form filled out by the new inmate included a

question as to whether “you [have] ever attempted

suicide?”” For those who checked the “yes” box, a

second form and instruction sheet was used, headed:

“Adult Intake Mental Health Screening.” This second

form and set of instructions was filled out and ap-

plied, in this case and routinely,* by a Licensed

Practical Nurse (“LPN”).

The Adult Intake Mental Health Screening sheet

governed in a rigidly mechanical way the processing

of a new inmate. The form contained 17 questions to

which the LPN was to answer either “yes” or “no.”

The LPN was directed to “notify Provider on call”

only if there was a total of 8 or more “yes” answers, or

if there was an affirmative answer to certain ques-

tions or combination of questions. The “Provider”

evidently referred to an on-call physician, who would

then assess the inmate and decide what level of

suicide prevention was needed. See Pet. 6; Pet.App.

5a; J.A. 299. But if there were fewer than 8 “yes”

answers (and none of the special questions or combi-

nations was answered affirmatively), then no suicide

prevention measures were taken. This form mandat-

ed a “categorization of inmates solely on the total

number of ‘positive’ responses given.” B. Opp. App. 8a.

As counsel for the defendants explained, “there is

nothing else that the Correctional staff or that FCM

* JA. 346.

" J.A. 554.

can do when ... the person does not score higher on a

form, to be taken to psychiatric close observation.” D.

Ct. Oral Arg. Tr., Doc. 274, p. 49 (emphasis added);

see Pet. 6.

In the instant case, the LPN checked “yes” for

only two questions on Barkes’ form, whether he had a

“psychiatric history” and whether “previous suicide

[had] been attempted.” “Because Barkes’ [form

contained] check[s] [of] only two of the 17 risk factors

... the nurse ... did not place him on suicide watch.”

Pet. 6." The LPN simply did as instructed by the

terms of the Intake Mental Health Screening sheet

when he sent Barkes to a cell without any suicide

preventive measures.

Several aspects of this mandated process high-

light its mechanical nature. First, the LPN was

required to “ignore[] the qualitative implications of

responses to individual questions (including ‘Have

you ever attempted suicide?’)....” Br. Opp. App. 8a. All

that mattered was the inmate’s “score[].” Second,

with regard to each question, the only thing that

mattered was whether the answer was “yes” or “no”;

the details were irrelevant. Thus the defendants them-

selves repeatedly stressed that in the administration

* JA. 299.

* In the court below counsel for the defendants correctly

described this as a form filled out by the LPN. Third Cir. Tr.,

p. 6. The form contains phrases such as “is individual incoher-

ent,” which call for a description by someone other than the

inmate himself.

of the process it simply did not matter how many

times Barkes had attempted suicide; under the

controlling standard, four suicide attempts were no

more significant than one, and it was of no im-

portance that two of the attempts had occurred

within the previous 65 days. Similarly, it did not

matter why or how recently an inmate had been

treated by a psychiatrist; all “psychiatric history” was

of the same significance. Third, information about

other indications of suicidality, such as Mrs. Barkes’

statement to the probation officer that her husband

was suicidal, were not among the questions on the

sheet, and thus also were irrelevant; even if the LPN

had read the probation report with that warning, the

number of risk factors checked on the form would

have remained the same. Similarly, even though the

sheet asked what “psychotropic medic{ine]” the

inmate was using, the fact that he was using such

medication, and any implications about his mental

state that could have been drawn from the type of

medication involved, did not affect an inmate’s

“score[ ].”

(3) The litigation in the courts below focused in

part on whether the intake methodology used at the

Delaware penal institutions satisfied the standards

established by the National Commission on Correc-

tional Health Care (“NCCHC”). The contract between

** Defendants Taylor and Williams’ Reply Brief in Support

of Their Motion for Summary Judgment, Doc. 264, p. 3; Third

Circuit Tr., pp. 10, 12.

the state Department of Corrections and FCM re-

quired FCM at a minimum to meet the standards set

by NCCHC.” The defendants argued that the

NCCHC standards were sufficiently demanding to

satisfy the constitutional standards, and that by

requiring FCM to meet the NCCHC standards the

state had met its constitutional obligations.” The

plaintiffs assumed that the NCCHC standards were

as demanding as the constitutional standards, but

objected that FCM had not even satisfied the NCCHC

standards, and that the defendant officials could be

held liable for deliberate indifference in failing to

ensure that FCM actually did so.

Plaintiffs contended that the FCM practice

clearly violated the standards established by NCCHC

in 1997. Pet.App. 8a, 44a-45a, 96a. Plaintiffs relied on

provisions in the NCCHC standards stating that once

there is any indication that an inmate is potentially

suicidal, he or she must be given an “assessment” by

a “mental health professional.”

SUICIDE ASSESSMENT AND

PREVENTION GUIDELINES

The intake screening form ... should contain

some items regarding potential suicide risk.

When it is suspected that an inmate is

* J.A. 60.

* Defendants Taylor and Williams’ Opening Brief in

Support of Their Motion for Summary Judgment, Doc. 245, pp. 9

10, 13, 19.

suicidal, s/he should be referred to a mental

health professional to determine the degree

of suicide risk and the supervision level re-

quired. Degree of risk can be assessed using

forms such as the samples that follow. Also

included are two sample protocols for super-

vising inmates placed on various precaution

levels.”

Under the 1997 NCCHC standards, the assessment

“should be conducted by a qualified mental health

professional, who designates the inmate’s level of

risk.”” The NCCHC standards include a model form,

to be used as part of a general medical intake, which

includes questions as to whether an inmate has ever

attempted suicide, seen a psychiatrist, or taken

psychoactive medication. The accompanying direc-

tions require prison staff to “[rjefer an inmate to

mental health staff for assessment if the inmate gives

a ‘Yes’ response to ANY question. There are no excep-

tions to this procedure.”

The practice at the Delaware penal institutions,

reflected in the Mental Health Screening form de-

scribed above, was in several particulars inconsistent

with the 1997 NCCHC standards. First, an incoming

inmate who indicated (on the Standard Intake Screen-

ing form) a past history of attempted suicide was not

seen next by a psychiatrist or anyone else who might

* Doc. 239, p. 10; J.A. 322.

” JA. 306.

* J.A. 314 (capitalization in original).

be considered a “qualified mental health profession-

al,” but only by an LPN, who filled out the Mental

Health Screening form. Pet.App. 45a, 96a. An LPN

has modest medical training, and typically engages in

such limited tasks as changing bandages or taking

down medical histories; an LPN would be unqualified

to diagnose mental illness or assess suicidality, just

as he or she would be unqualified to diagnose leuke-

mia or a defective heart valve.” During the relevant

time period, Delaware law forbade an LPN from

making a medical assessment.” Second, the NCCHC

standards require that an inmate with a history of

attempted suicide will be given an “assessment.” An

“assessment” refers to an in depth evaluation (and;

perhaps, diagnosis) of a patient, typically by a physi-

cian, whereas a “screening” is some simple method

(based on questions, or some brief examination) to

determine whether an individual should be seen by a

doctor. The step of the FCM intake process governed

by the “Mental Health Screening,” however, was (and

was expressly labeled) a screening, not an assess-

ment. Third, although the NCCHC standards called

for particularly stringent preventative measures for

an inmate who had recently attempted suicide,”

"= The behavioral descriptions required by the Mental

Health Screening sheet involved a number of issues that a

mental health professional could assess far more competently

than an LPN. It inquired, for example, whether the inmate

“[sJhows signs of ... emotional flatness.” J.A. 299.

* Del. Code Ann., tit. 24, § 1902(m).

* JA. 326-28.

under the FCM process, the recentness of a suicide

attempt had no effect on an inmate’s “score.”

The defendants argued that it was not all that

important whether, once Barkes’ revealed a history of

attempted suicide, he was seen by an LPN rather

than by a psychiatrist. They contended that the FCM

Mental Health Screening sheet was at least “modeled

on” a form that was part of the 1997 NCCHC materi-

als.” Pet. 5. Plaintiffs responded that assessment by a

mental health professional was essential, and that

the form in the 1997 NCCHC materials to which the

defendants referred did not override the express

requirements of the NCCHC Guidelines. Plaintiffs

pointed out that the form in question had in any

event been deleted by NCCHC in 2003, at least a year

before FCM’s screening sheet was appiied to deny

Barkes any suicide prevention measures. Pet.App.

45a, 96a. The defendants noted that the medical care

system at the Delaware prisons had been accredited

by NCCHC in 2003; that contention led to further

disputes about what the accreditation meant, and

what information NCCHC had at the time about

FCM’s practices.

* The NCCHC form, for example, was intended for use by a

corrections officer, and established a standard for deciding when

to “notify [the] shift commander,” rather than (under the FCM

form) to “notify Provider on call.” Under the NCCHC form, an

officer could notify the shift commander whenever he or she

“feel{[s] notification is appropriate.” The FCM form had no

comparable provision.

The District Court concluded that there was

sufficient evidence to support a finding that the

medical care provided to Barkes was constitutionally

deficient. Pet.App. 97a-98a. That district court hold-

ing is not subject to review in this interlocutory

appeal.

(4) There was ample evidence that defendants

were well aware of the inadequacies of FCM’s medical

services, and that their failure to address that prob-

lem amounted to deliberate indifference. Defendant

Taylor was the Commissioner of the Department of

Corrections, and defendant Williams was the warden

of HRYCI.

[Defendants] stated in deposition testimony

that they knew that the quality of FCM’s

provision of medical services was degrading,

with both [defendants] acknowledging aware-

ness of intentional short-staffing.... A rea-

sonable juror could draw from that evidence

the conclusion that [defendants] were aware

of an unreasonable risk that FCM’s declining

performance would result in a failure to treat

or a mistreatment of an inmate’s serious

medical condition. A reasonable juror could

also conclude that, by failing to enforce

FCM’s compliance with NCCHC standards

as required by their contract, [defendants]

were deliberately indifferent to the risk that

FCM’s flagging quality would result in a vio-

lation of an inmate’s constitutional rights.

Pet.App. 46a; see id. 96a-97a. “Taylor ... acknowl-

edged that in the period of 2003-2007 audits conducted

by the NCCHC had identified deficiencies in the

healthcare provision in the Delaware prison system.

He also suspected that FCM was intentionally leav-

ing positions vacant in order to save money.” Jd. lla.

“Williams admitted that FCM’s performance had

degraded significantly and that he was aware FCM

may not have been fulfilling its contractual obliga-

tions.... He was aware of significant backlogs, that

FCM may have been intentionally short-staffing to

save money, and that inmate complaints had in-

creased.” Jd. 10a.”

Petitioners argue that Taylor’s failure to correct

the known systemic problems did not constitute

deliberate indifference, because he had delegated to

one of his subordinates, Joyce Talley, all responsibil-

ity for dealing with FCM. Pet. 7, 16. But Talley

emphatically denied that Taylor had given her re-

sponsibility for ensuring that FCM was providing

adequate medical care. “Talley ... testified that she

did not believe it to be her responsibility to ensure

FCM’s compliance with NCCHC standards.... (‘Q. Did

you believe that it was your responsibility when you

™ “FCM was not doing some things ... they were saving

money and they weren't filling those positions.... but the medical

services at that point in time was going down. It was not what

it used to be when I actually started. They had a serious con-

cern about the delivery of services at that point, if they were

actually doing all the stuff that they were contractually obli-

gated to do.... It was over a period of time. It was, like, slowly

going downhill over a period of time.” Williams Dep. 96, J.A.

792.

served in that role as bureau chief that you reviewed

the compliance with the standards set forth by

NCCHC? A: No.’).” Pet.App. 7a; see id. 45a-46a, 98a.

Indeed, Talley insisted that no one in the DOC had

that responsibility or capability. Id. 45a-46a n.17.

Talley generally appointed a subordinate “key man-

ager” to oversee particular functions; but she did not

appoint a key manager to oversee medical care.

Pet.App. 7. Talley testified that the person on whom

she actually relied to ensure that FCM was complying

with the NCCHC standards was the CEO of FCM

itself.”

Petitioners argue that Warden Williams’ failure

do anything about the known medical care problems

did not constitute deliberate indifference, because the

FCM medical staff at HRYCI prison did not report to

Williams. Pet. 7, 16. But as the Warden of HRYCI,

Williams had other methods available to him to

attempt to correct the inadequacy of the medical care

being provided in his prison. Talley testified that

when a concern arose about the quality of medical

care, she “encouraged it be resolved at the local

level," and Williams served on a committee with

FCM officials where he could have raised such is-

sues.” When Williams concluded that “the medical

services ... w[ere] going down,” he could have contacted

" JA. 368.

* JA. 916-17.

* J.A. 530, 538.

Talley and pressed her to correct the situation. Wil-

liams did not claim he ever did so, but insisted that he

had no responsibility to report those problems to other

officials in the Department.” Although Williams knew

that FCM was understaffing HRYCI in order to increase

profits,” Talley insisted that no one ever told her.”

The district court concluded that there was

sufficient evidence to support a finding that Taylor

and Williams were deliberately indifferent to the

inadequacies of the medical care provided by FCM to

Barkes and other inmates. Pet.App. 98a-10la and

n.9. That district court holding is not subject to

review in this interlocutory appeal.

Proceedings Below

In 2006 the widow and children of Barkes com-

menced this action against Taylor, Williams, and

FCM. FCM has gone bankrupt.

* JA. 304:

Q. Is it fair to say then that you believe in your role

as warden that you had no personal responsibility to

ensure compliance with the standards of NCCHC?

A The responsibility lied with management ser-

vices. if there was an issue with that, they would noti-

fy me.

(Emphasis added).

" Pet.App. 10a.

= JA. 794-95.

Counts I and III of the original complaint assert-

ed claims based on the medical policies of the DOC

itself (rather than the policies of FCM) and on the

asserted failure of Taylor and Williams to train

employees of the department. In 2008 the District

Court granted summary judgment on Counts I and

III, holding thet there was insufficient evidence that

Taylor and Williams had acted with deliberate indif-

ference in setting department medical policies or in

training department employees. Pet.App. 114a-120a.

Because there is still no final judgment in this case,

that decision is not yet subject to appeal.

In 2010 the District Court permitted the plain-

tiffs to amend their complaint to allege in Count V

that Taylor and Williams were deliberately indiffer-

ent in failing to supervise the actions of FCM. The

defendants moved to dismiss Count V. The district

court rejected a motion to dismiss Count V, reasoning

that even though the defendants had no specific role

in the treatment of Barkes, their alleged failure to

supervise FCM could constitute the requisite person-

al misconduct. Br. Opp. App. 10a-18a.

The defendants then moved for summary judg-

ment on Count V, and asserted that they were enti-

tled to qualified immunity. The District Court denied

that motion, concluding “that there are numerous

genuine disputes of material fact that preclude a

grant of summary judgment ... on Count V.” Pet.App.

97a. Those disputed material issues concerned both

whether the medical care accorded Barkes was so

inadequate as to violate the Eighth Amendment, and

whether Williams and Taylor had been deliberately

indifferent in failing to supervise FCM. Id. 97a-101la

and n.9. The court emphasized that the plaintiffs did

“not seek to impose vicarious liability on Defendants

for the misdeeds of FCM” (id. at 100a n.9), but “seek

to hold Defendants ... liable for their individual

actions ... in failing to supervise [FCM]....” Jd. 101a.

Defendants filed an interlocutory appeal of the

District Court decision denying qualified immunity.

Defendants’ appeal presented a specific legal ques-

tion, whether an Eighth Amendment claim against

supervisory officials could be grounded on their

failure to supervise a third party providing medical

care to inmates. Defendants insisted that if Delaware

officials took no remedial action despite knowing that

inmates were not actually receiving needed medical

care, they could be liable for deliberate indifference

only if the medical staff involved were state employ-

ees, but not if the staff worked instead for a third-

party vendor hired by the state.” The Court of Ap-

peals rejected that distinction.

Appellants|[’] ... argument hinges entirely on

the outsourcing of prison medical care to a

private, third-party provider. Appellants do

not argue that they have no responsibility to

supervise ... medical staff were it composed

of state employees rather than private con-

tractors. Rather, their argument depends

* Appellants Taylor and Williams’ Opening Brief, 19; Appel-

lants Taylor and Williams’ Reply Brief, 6.

entirely on the Court finding that there is a

difference of constitutional import between

the two. No reasonable prison administrator

could believe that hiring a private contractor

to provide a constitutionally required service

would allow them to abdicate their constitu-

tional supervisory duties.

Pet.App. 36a.

A dissenting opinion argued that in the wake of

this Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662

(2009), a supervisor could never be liable for deliber-

ate indifference in failing to supervise (or train)

anyone, either state government employees or em-

ployees of third-party vendors. Pet.App. 48a-76a. The

majority rejected this contention on three grounds.

First, the majority held that, while Iqbal held

that a supervisor may be held liable only “for his or

her own misconduct” (556 U.S. at 677), the standard

governing what constitutes “misconduct” — specifical-

ly, the necessary mental state — will vary, depending

on what constitutional right is asserted. Pet.App.

20a-21a.

Second, the majority noted that deliberate indif-

ference, not some invidious motive, is the state of

mind required to establish an Eighth Amendment

violation. Pet.App. 22a. “[W]hen a plaintiff seeks to

hold a defendant liable under the Eighth Amendment

in his or her role as a supervisor, ... ‘the deliberate

indifference test [is] applied to the specific situation

of a policymaker.’” Jd. 16a-17a (quoting Beers-Capitol

v. Whetzel, 256 F.3d 120, 135 (3d Cir. 2001)). The

Court rejected the suggestion that an Eighth Amend-

ment medical care claim against a supervisor, unlike,

for example, an Eighth Amendment claim against a

guard, requires proof of a specific intent to harm the

inmate. Id. 24a-25a, 33a-34a.

Third, the court concluded that deliberate indif-

ference could take the form of a supervisor’s policy or

practice, and is not limited to instances in which a

supervisor is personally involved in decisions about a

particular inmate. Pet.App. 15a, 24a, 27a-33a.

A high-ranking prison official can expose an

inmate to danger by failing to correct serious

known deficiencies in the provision of medi-

cal care to the inmate population. That the

official had no specific knowledge of any par-

ticular inmate or the failure of subordinate

officials to treat that inmate’s serious medi-

cal condition is irrelevant.

Id. 31a. A failure to supervise is a type of policy that

could cause such harm. Id. 15a-16a.

REASONS FOR DENYING THE WRIT

I. THERE IS NO CIRCUIT CONFLICT RE-

GARDING THE LIABILITY STANDARD

FOR EIGHTH AMENDMENT CLAIMS

AGAINST SUPERVISORS

A. The Third Circuit Did Not Hold That

Supervisors Can Be Held Liable Under

A Respondeat Superior Theory

The first question set out in the petition is

whether in a section 1983 action a supervisor is

strictly liable “for a subordinate’s ... constitutional

violations.” Pet. i. Petitioners repeatedly assert that

the Third Circuit adopted such a rule, imposing

automatic vicarious liability on supervisors whenever

a subordinate commits a constitutional violation.” If

the Third Circuit had adopted such a rule, it would

indeed conflict with the law in other circuits, and

with the decision in Jgbal. But the Court of Appeals

did no such thing.

“ This area of the law is complicated by the two possible

meanings of the phrase “supervisory liability.” “Supervisory

liability” could refer to the automatic imposition of liability on a

supervisor for the acts of a subordinate; Iqbal holds that “super-

visor liability” in this sense does not exist in a section 1983 case.

556 U.S. at 677. On the other hand, “supervisory liability” could

refer to the imposition of liability on a supervisor because of

misconduct in the manner in which he or she used (or refused to

use) his or her supervisory authority. It is in that sense of the

phrase that the court of appeals commented that Iqbal did not

“abolish[ ] supervisory liability in its entirety.” Pet.App. 22a.

The Third Circuit expressly held that “[glovern-

ment officials may not be held liable for the unconsti-

tutional conduct of their subordinates under a theory

of respondeat superior.” Pet.App. 15a (quoting Iqbal,

556 U.S. at 676). The Court below emphasized that

even a supervisor’s negligence would not give rise to

liability. “Nothing in our definition of the right at

issue — or in our opinion more broadly — remotely

suggests that a mere negligent failure to properly

implement suicide prevention protocols would be

sufficient to trigger liability.” Pet.App. 42a n.15.

Petitioners argue that the Third Circuit must

have been imposing some form of respondeat superior

liability because “the district court ... [had] held ... the

defendants were not deliberately indifferent to the

inmate’s medical needs....” Pet. 16 (emphasis in

petition); see id. 7-8. But the District Court holding

on which petitioners rely concerns Counts I and III of

the complaint (deliberate indifference in adopting the

Department’s own medical standards and in training

Department employees), not to Count V, the claim at

issue in this appeal (deliberate indifference in failing

to supervise FCM). See Pet.App. 114a-120a; compare

Pet.App. 87a (insufficient evidence of deliberate indif-

ference as to Count I) with Pet.App. 96a-101a (suffi-

cient evidence of deliberate indifference as to Count

V). The Third Circuit and the District Court specifi-

cally rejected this very argument, the appellate court

dismissing it as a “red herring.” Pet.App. 29a; Br. Opp.

App. 14a-16a. The Third Circuit held that a reason-

able jury could conclude, with regard to Count V, “that,

by failing to enforce FCM’s compliance with NCCHC

standards as required by their contract, Appellants

were deliberately indifferent to the risk that FCM’s

flagging quality would result in a violation of an

inmate’s constitutional rights.” Pet.App. 46a.

Petitioners insist that “[bJecause the officials

were not involved with the inmate’s treatment (or

even with supervising the medical provider) and the

plaintiffs did not challenge the State’s policies, these

officials could only be liable under a theory of

respondeat superior....” Pet. 3. But the gravamen of

Count V is a challenge to the policies of Taylor and

Williams, policies of deliberate and indifferent inac-

tion regarding the known deficiencies in the medical

care provided by FCM. “‘Failure to’ claims — failure to

train, ... or, as i{n] the case here, failure to supervise —

are generally considered a subcategory of policy or

practice liability.” Pet.App. 15a-16a. A deliberate

decision to generally ignore something is commonly

characterized as a policy; the military’s former “don’t

ask, don’t tell policy” was described in just such

terms.

Petitioners assert that “the Third Circuit’s ...

supervisory liability test ... required plaintiffs ‘only

[to] establish a supervisory practice or procedure that

the supervisor failed to employ.’” Pet. 11 (quoting

Pet.App. 68a (dissenting opinion)) (emphasis added).

To the contrary, the Court of Appeals expressly re-

quired plaintiffs to demonstrate four additional

elements in order to establish that a defendant was

deliberately indifferent to a known, unreasonable risk

of an Eighth Amendment violation. Pet.App. 43a.

Petitioners assert that “the Warden and Commis-

sioner were sued not based on their own actions....”

Pet. 17 (quoting Pet.App. 66a) (dissenting opinion). To

the contrary, both courts below correctly understood

that the claim in Count V was based specifically on

Taylor’s and Williams’ own actions. “Plaintiffs seek to

hold Defendants Taylor and Williams liable for their

individual actions (in failing to supervise) rather than

for the actions of their subordinates.” Pet.App. 101a.

The essence of the type of claim [in this case]

is that a state official, by virtue of his or her

own deliberate indifference to known defi-

ciencies in a government policy or procedure,

has allowed to develop an environment in

which there is an unreasonable risk that a

constitutional injury will occur, and that

such injury does occur.

Pet.App. 22a (emphasis added); see id. 101a.

Petitioners assert that “the complaint ‘targeted’

these officials because they ‘“presided over a sys-

tem.”’ Pet.App. 66a, 72a (quoting Complaint).” But

the four words “presided over a system” are taken out

of the context of a 190-word sentence (in a brief, not

the complaint) which asserts the defendants were

culpable because they “presided over a system in

which: they knew [that inmates were receiving inad-

equate care and which] Defendants nevertheless

failed [to correct]."”" The paragraph-long sentence

spells out a litany of deficiencies in the medical care

in the prisons that were known to the defendants, as

well as a list of corrective measures the defendants

had failed to take.

The petition sets out a one-sided and incomplete

summary of the evidence and claims, framed to show

that Barkes received constitutionally sufficient med-

ical care, and that even if he did not the defendants

were not the least at fault, and then argues that

“(fhjolding that officials may be held liable under these

circumstances reduces ‘deliberate indifference’ to

nothing more than ‘respondeat superior.’” (Pet. 17-18)

(emphasis added). But the District Court, looking at.

the entire record, assessed the evidence differently,

and its evaluation is not subject to review in this

interlocutory appeal. Petitioners cannot avoid the

limitations on the scope of appellate jurisdiction by

assuming that the Court of Appeals must have agreed

with the defendants’ view of the evidence, and hy-

pothesizing that the appellate court must therefore

have been applying some (unstated) improper legal

standard under which the asserted lack of evidence

did not matter.

* Doc. 256, Plaintiff’s Answering Brief in Opposition to

State Defendants’ Motion for Summary Judgment, J.A. 745-46.

B. The Lower Courts Agree That In

Eighth Amendment Medical Care Cases

Supervisors Can Be Liable for Policies

Constituting Deliberate Indifference

The courts of appeals are in agreement that the

state of mind necessary to impose liability on a su-

pervisor varies, and depends on the underlying

constitutional claim. Under Iqbal, “(t]he factors neces-

sary to establish a ... violation [by a supervisor] will

vary with the constitutional provision at issue.” 556

U.S. at 676. The Third Circuit correctly noted that

“[mJost courts have ... recognize[d] that because the

state of mind necessary to establish a § 1983 ... claim

varies with the constitutional provision at issue, so

too does the state of mind necessary to trigger liabil-

ity in a supervisory capacity.” Jd. 20a. Five other

circuits have so held. Id. 20a-21a. Petitioners do not

contend that there is a circuit conflict on this issue,

and do not suggest that proof of the state of mind

required in a discrimination case such as Igbal —

invidious intent — would be necessary in all other

types of constitutional claims.

A number of the cases cited by petitioner did not

invoive Eighth Amendment medical care claims, the

constitutional violation at issue in the instant case.

TE. v. Grindle, 593 F.3d 583 (7th Cir. 2010), is a Due

Process claim based on the failure of an elementary

school principal to prevent a teacher from molesting

several students. The court below correctly noted that

the Seventh Circuit decision in Vance v. Rumsfeld, 701

F.3d 193 (7th Cir. 2012) (en banc) “involved violation of

a federal statutory right rather than the Eighth

Amendment, and so the mental state need not have

matched that which we apply today.” Pet.App. 34a

n.10." The plaintiffs in Vance alleged that they had

been mistreated in Iraq by American military offi-

cials; the Seventh Circuit in that case noted that “the

conduct alleged in the complaint appears to violate

the Detainee Treatment Act ... and may violate one or

more treaties.” 701 F.3d at 199. The petition describes

Vance as if the central claims were constitutional in

nature. “But even if subordinates subjected the plain-

tiffs to unconstitutional conditions, the Seventh Cir-

cuit held, the Secretary could not be held liable

because ‘(hje did not [abuse] plaintiffs.....” Pet. 21.

However, in the actual Vance opinion the clause that

begins “even if” actually refers to the statutory claim.

“Even if we were to create a common-law damages

remedy [under the Detainee Treatment Act], against

military personnel and their civilian superiors, for-

mer Secretary Rumsfeld could not be held liable. He

did not [abuse] plaintiffs....” 701 F.3d at 203.

The courts of appeals are also in agreement that

the state of mind that must be shown to establish

liability on the part of a supervisor for a violation of a

* In opposing certiorari in Vance, the Solicitor General

assured this Court that “the court of appeals did not purport to

exempt government supervisors from liability predicated on

deliberate indifference.” Brief for the Respondent in Opposition,

Vance v. Rumsfeld, No. 12-976, available at 2013 WL 1945159, at

*24.

particular constitutional right is the same state of

mind required to establish liability on the part of any

other government official. The petition itself quotes a

decision which says just that. “‘Simply put, there’s no

special rule of liability for supervisors’; the test for

supervisors ‘is the same as the test for everyone

else.’” Pet. 21 (quoting Porro v. Barnes, 624 F.3d 1322,

1328 (10th Cir. 2010)). The Tenth Circuit decision in

Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir.

2010), on which petitioners rely (Pet. 19, 22), held

that “after Iqbal when a plaintiff claims the defendant-

supervisor violated her constitutional rights, she

must allege the defendant-supervisor acted with what-

ever state of mind is required to state the underlying

constitutional violation.” 614 F.3d at 1204. Petitioners

do not contend that there is a circuit conflict on that

issue.

Petitioners acknowledge that the state of mind

required to establish liability for an Eighth Amend-

ment Estelle violation is deliberate indifference. Pet.

4, 13. The lower courts have consistently concluded

that in such an Eighth Amendment case a supervisor,

like any other government defendant, can be held

liable if his or her actions constituted deliberate

indifference. Dodds, for example, held that

[a plaintiff] can ... succeed on a § 1983 claim

.. by showing that as a supervisor [the

defendant] behaved knowingly or with delib-

erate indifference that a constitutional viola-

tion would occur at the hands of his

subordinates, [if] that is the same state of

mind required for the constitutional depriva-

tion he alleges.

614 F.3d at 1204. In Starr v. Baca, 652 F.3d 1202 (9th

Cir. 2011), the dissenting opinions agreed with the

panel majority that the supervisory officials could be

held liable if they were deliberately indifferent to

circumstances that threatened the safety of the

plaintiff prisoners. See 652 F.3d at 1208 (majority

opinion), 1217 (Trott, J., dissenting); Starr v. County

of Los Angeles, 659 F.3d 850, 854-55 (9th Cir. 2011)

(O’Scannlain, J., dissenting); Franklin v. Curry, 738

F.3d 1246, 1252 n.7 (11th Cir. 2013); Whitson v. Stone

County Jail, 602 F.3d 920, 928 (8th Cir. 2010).

Petitioners suggest that Nelson v. Corr. Med.

Servs., 583 F.3d 522 (8th Cir. 2009), held that under

Iqbal liability may not be based on deliberate indif-

ference.

Because “[iJn a § 1983 case an official ‘is only

liable for his ... own misconduct’ and is not

‘accountable for the misdeed of [his] agents,’”

the Director could not be liable for “deliber-

ate indifference” to the prisoner’s medical

needs. [583 F.3d] at 534-35 (quoting Iqbal,

556 U.S. at 677) (omission and second altera-

tion in original).

Pet. 20. But Nelson actually says the opposite, hold-

ing that in an Eighth Amendment case a supervisor

can be liable for deliberate indifference.

In a § 1983 case an official “is only liable for

his ... own misconduct” and is not “accountable

for the misdeed of [his] agents” under a the-

ory such as respondeat superior or supervisory

liability. ... [Director] Norris is thus liable on-

ly if he personally displayed deliberate indif-

ference to the hazards and pain resulting

from shackling an inmate such as Nelson

during the final stages of labor. Farmer [v.

Brennan], 511 U.S. [825,] 842 [(1994)].

583 F.3d at 534-35 (emphasis added); see 583 F.3d at

535 (Director could have been held liable “if he per-

sonally displayed deliberate indifference to the haz-

ards and pain [at issue]”), 536 (plaintiff might have

prevailed if there had been “further allegation or

evidence of deliberate indifference”).

Petitioners assert that Igbal held that a supervi-

sor can never be held liable for acquiescing in known

constitutional violations by his subordinates, thus

precluding (even in Eighth Amendment cases) liabil-

ity based on that type of deliberate indifference.

The Court began with the principle that

“[glovernment officials may not be held liable

for the unconstitutional conduct of their sub-

ordinates under a theory of respondeat supe-

rior,” and explained that “[bJecause vicarious

liability is inapplicable to Bivens and § 1983

suits, a plaintiff must plead that each Gov-

ernment-official defendant, through the offi-

cial’s own individual actions, has violated the

Constitution.” [556 U.S.] at 676.... Based

on this principle, the Court rejected the ar-

gument “that, under a theory of ‘supervi-

sory liability,’ petitioners can be liable for

knowledge and acquiescence in their subor-

dinates’” constitutional violations. Iqbal, 556

U.S. at 677.

Pet. 15 (emphasis added). But between the Court’s

conclusion (556 U.S. at 677) and what petitioners

contend was the reason for that holding (the passage

quoted from 556 U.S. at 676), there is an entire

paragraph which petitioners overlook. That para-

graph, which begins “[t]he factors necessary to establish

a Bivens violation will vary with the constitutional

provision at issue” (556 U.S. at 676), explains that

because the constitutional claim in Jgbal itself was

one of intentional discrimination, a supervisor could

only be liable in that case based on a showing of such

invidious intent. It was based on that principal, not

the general rule against respondeat superior liability,

that the Court concluded liability in Iqbal itself could

not be based on knowledge and acquiescence. As the

Court reiterated, “purpose rather than knowledge is

required to impose ... liability ... for unconstitutional

discrimination ... [on] an official charged with viola-

tions arising from his or her superintendent respon-

sibilities.” 556 U.S. at 677 (emphasis added).

Petitioners appear to contend that even when a

deliberate indifference standard applies, it does not

encompass deliberate indifference in the supervision

or training of lower officials. But the Third Circuit’s

holding that those forms of deliberate indifference are

actionable is consistent with the rule in other circuits.

The Fifth Circuit decision in Gates v. Texas Dept. of

Protective and Regulatory Sucs., 537 F.3d 404, 435

(5th Cir. 2008), on which petitioners rely (Pet. 19),

expressly recognizes failure to supervise claims. In

the years since Jgbal the Fifth Circuit has repeatedly

held that a supervisor can be held liable for a deliber-

ately indifferent failure to supervise or train subordi-

nates.” Subsequent to its decision in Nelson, the

Eighth Circuit held that liability could be based on

deliberate indifference in the training or supervision

of lower level officials. Laganiere v. County of

Olmsted, 772 F.3d 1114, 1117 (8th Cir. 2014); see

Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.

2009) (“Liability may attach ‘if a responsible official

supervises, trains, or hires a subordinate with delib-

erate indifference toward the possibility that deficient

performance of the task eventually may contribute to

a civil rights deprivation.’”) (quoting Camilo-Robles v.

Zapata, 175 F.3d 41, 44 (1st Cir. 1999)). Petitioners

acknowledge that “the extent of [an official’s] liability

as a supervisor is similar to that of a municipality

that implements an unconstitutional policy.” Pet. 19-

20 (quoting Carnaby v. City of Houston, 636 F.3d 183,

189 (5th Cir. 2011)). City of Canton v. Harris, 489

U.S. 378, 390 (1989), the municipal liability case cited

” Hobart v. Estrada, 582 Fed.Appx. 348, 356 (5th Cir.

2014); Estate of Pollard v. Hood County, Texas, 579 Fed.Appx.

260, 266 (5th Cir. 2014); Winston v. City of Shreveport, 390

Fed.Appx. 379, 385 (5th Cir. 2010); Blank v. Eavenson, 530

Fed.Appx. 364, 369 (5th Cir. 2013); Porter v. Epps, 659 F.3d 440,

446 (5th Cir. 2011); Brown v. Callahan, 623 F.3d 249, 255 (Sth

Cir. 2010).

in Carnaby, holds that cities can be liable for “failure

to train” in some cases. Id.”

Petitioners argue that in the wake of Iqbal the

standard governing liability of supervisors for consti-

tutional violations is “muddied” or “murky.” Pet. 19.

But in the absence of a clear and entrenched circuit

conflict about a specific issue, merely generalized

uncertainty weighs heavily in favor of permitting the

lower courts to continue to air these issues, until and

unless such a conflict actually arises.

tl. THIS CASE IS NOT AN APPROPRIATE

VEHICLE FOR DECIDING ANY EIGHTH

AMENDMENT ISSUE

This case is not an appropriate vehicle for decid-

ing any issue regarding the constitutional standard

under Estelle for Eighth Amendment medical care

claims. Although the District Court concluded that

there is sufficient evidence to find a constitutional

violation, under Johnson v. Jones that. evidentiary

question is not subject to review in this interlocutory

appeal. The interlocutory appeal that petitioners did

file was limited to the legal standard governing when

* Municipal liability, unlike individual liability, requires a

showing that the city acted with reckless disregard of the danger

to individuals such as the plaintiff.

a supervisor is personally liable for such an Eighth

Amendment violation.™

In the course of discussing that liability stan-

dard, the Court of Appeals made clear that the Eighth

Amendment is not satisfied by the mere adoption of a

constitutionally sufficient standard for prison medical

care, if that standard is not actually implemented.

Pet.App. 42a n.15, 45a; see Pet.App. 100a n.9. It was

in that context (and the context of the medical need

at issue in this case) that the Third Circuit explained

that the Eighth Amendment requires “proper imple-

mentation of adequate suicide prevention protocols.”

Pet.App. 38a (emphasis added).

Petitioners do not appear to disagree with the

implementation requirement. They object to the

adjective “adequate,” apparently preferring the

adjective “basic” in the dissenting opinion. Pet. 12;

” Appellants Taylor and Williams’ Opening Brief, available

at 2013 WL 1623555 at *2 (“Statement of Issues”):

Are the Warden and Commissioner of Correction re-

sponsible for supervising the contracted medical ven-

dor regardless of the specific division of labor between

medical staff and prison administrators?

Was the law regarding the Eighth Amendment so

clearly established that no reasonable employee in de-

fendants’ position could believe that delegating all

medical decision-making to the medical vendor was

unlawful?

Petitioners’ appellate briefs contained o ily a single conclusory

sentence regarding the merits, merely asserting that if there

was a constitutional violation it did not violate clearly estab-

lished legal requirements. Jd. at *22.

but see Pet. 26 (Eighth Amendment requires “ade-

quate[}” level of care). But “adequate” is the very

term this Court has used repeatedly to delineate the

level of medical care required by the Eighth Amend-

ment.“ Petitioners assert erroneously that “the Third

Circuit ... hfeJld{} that state prison officials must

maintain best practices with respect to the suicide

prevention protocol....” Pet. 29. But the Court of

Appeals decision cannot fairly be interpreted as

imposing any such requirement; the phrase “best

practices” appears only in the dissenting opinion.

Pet.App. 6la n.12, 65a. Petitioners contend that

“(tlhe Third Circuit’s holding ... conflicts with this

Court’s holdings that the Eighth Amendment does not

constitutionalize medical malpractice in prisons....”

Pet. 4. But there is no such Third Circuit holding.

Petitioners object that the Third Circuit failed to

recognize that an inadvertent failure to provide

adequate care in a particular case would not violate

the Eighth Amendment. Pet. 23-24. But the Third

Circuit in fact said precisely the opposite. Pet.App.

42a n.15.

Petitioners claim that “[tJhe Third Circuit’s

holding that the Eighth Amendment requires ‘proper

implementation of adequate suicide prevention

protocols’ creates a split with [five] Circuits, which

” Estelle, 429 U.S. at 105; Brown v. Plata, 131 S.Ct. 1910,

1924, 1928, 1938, 1944 (2011); DeShaney v. Winnebago County

Dept. of Social Sucs., 489 U.S. 189, 198 (1989); West v. Atkins,

487 U.S. 42, 54 (1988).

have held that there is no constitutional right to be

screened for suicidal tendencies.” Pet. 14. But the

Third Circuit does not hold that screening of all

inmates (or any other specific medical practice) is

constitutionally required; the purpose of the passage

to which petitioners object was only to make clear

that a state cannot meet constitutional requirements

by merely adopting, but not implementing, a policy of

providing a constitutionally sufficient level of medical

care. In this case, moreover, there was screening for

suicidal tendencies; the dispute is about whether the

state (through FCM) provided adequate care once the

screening official actually knew that Barkes had

attempted suicide, had been seen by a psychiatrist,

and was on powerful psychoactive medications. All of

the circuits on which petitioners rely hold that a

prison has a duty to provide adequate medical care

when — as here — it has actual notice of an inmate’s

suicidal tendencies.”

Petitioners acknowledge that “the Eighth Amend-

ment require[s] ... that prison personnel respond

adequately when an ... inmate’s need for care is ...

brought to their attention.” Pet. 26; see Pet. 28-29

(defendants may be liable where there was “knowl-

edge,” “notice” or “signs of” suicidal tendencies).

“ E.g., Gordon v. Kidd, 971 F.2d 1087, 1094 (4th Cir. 1992)

(“knew or should have known”); Whitt v. Stephens County, 529

F.3d 278, 284 (5th Cir. 2008) (“known,” “demonstrable,” or “mani-

fest”); Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001)

(“alerted to”); Tittle v. Jefferson County Commission, 10 F.3d

1535, 1539 (11th Cir. 1994) (“ha[d] notice”).

Plaintiffs assert that this is precisely what did not

occur when Barkes’ mental illness and history of

attempted suicide and psychiatric care were brought

to the attention of officials in the prison. The District

Court’s holding that there is sufficient evidence to

prove a denial of adequate care is not subject to

review in this interlocutory appeal. Johnson v. Jones.

CONCLUSION

For the above reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

ERIC SCHNAPPER*

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

schnapp@u.washington.edu

G. KEVIN FASIC

KATHERINE R. WITHERSPOON

ANTHONY N. DELCOLLO

COOCH AND TAYLOR, P.A.

The Brandywine Building

1000 West St., 10th Floor

Wilmington, DE 19801

(302) 984-3800

Counsel for Respondents

*Counsel of Record

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

KAREN BARKES, et al.,

Plaintiffs,

> C. A. No. 06-104JJF-MPT

FIRST CORRECTIONAL .

MEDICAL, et al.,

Defendants.

REPORT AND RECOMMENDATION

I. INTRODUCTION

The court now considers defendants’ Motion to

Dismiss plaintiffs’ Third Amended Complaint. For the

reasons that follow, the court recommends defen-

dants’ motion be denied.

Il. BACKGROUND

On February 16, 2006, plaintiffs filed a complaint

under 42 U.S.C. § 1983 and Delaware state law re-

garding decedent Christopher Barkes.' Barkes com-

mitted suicide at the Howard R. Young Correctional

Institution (“HRYCI’) on November 14, 2004. Plain-

tiffs are the surviving members of decedent’s family

in varying capacities.

ae & 3

Plaintiffs named the State of Delaware Depart-

ment of Corrections (“DOC”), Stanley Taylor, DOC Com-

missioner, and Raphael Williams, Warden of HRYCI

(collectively, “State Defendants”), as well as then-DOC

medical provider First Correctional Medical, Inc.

(“FCM”) as defendants. Plaintiffs asserted an Eighth

Amendment claim for deliberate indifference to Barkes’

serious medical needs, an Eighth Amendment claim

for failure to train and/or wrongful customs, practices

and policies, and a state law wrongful death claim.

All State Defendants prevailed on summary judg-

ment.”

On May 21, 2008, following a show cause hear-

ing, the court granted entry of default judgment

against FCM.* The court also granted plaintiffs leave

to amend the pleadings to add new claims “that may

pertain either to third parties or the parties that were

initially in the case that you want to rejoin in the

case.™ Plaintiffs responded by filing an Amended

Complaint against Taylor and Williams including two

new counts and several new allegations.” Taylor and

Williams then moved to strike the Amended Com-

plaint.° The court granted this motion because the

Amended Complaint retained and reasserted claims

D.I. 60.

D.I. 74.

D.I. 73 at 3-4.

D.I. 75.

D.I. 76.

from the original Complaint upon which State De-

fendants had already prevailed on summary judg-

ment, but granted plaintiffs leave to file a second

amended complaint that did not include such claims.’

Plaintiffs then filed their Second Amended Complaint

on April 9, 2009.° Defendants’ Motion to Strike the

Second Amended Complaint was denied.’ After sub-

stantial discovery, Taylor and Williams moved to

dismiss the Second Amended Complaint under Fed.

R. Civ. P. 8(a) and 12(bX6)." The court granted this

motion while giving plaintiffs leave to amend Count V

only." The Third Amended Complaint is the subject of

another Moticn to Dismiss.”

Il. DISCUSSION

A. Standard of Review

Rule 12(bX6) permits a party to move to dismiss

a complaint for failure to state a claim upon which

relief can be granted. The purpose of a motion under

Rule 12(bX6) is to test the sufficiency of a complaint,

not to resolve disputed facts or decide the merits of

the case.” “The issue is not whether a plaintiff will

’ DL. 81.

* DI. 82.

* DI. 92.

” DiI. 144.

" See D.I. 150, D.I. 158.

* DI. 153.

’ Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).

ultimately prevail but whether the claimant is en-

titled to offer evidence to support the claims.”“ A

motion to dismiss may be granted only if, after “ac-

cepting all well-pleaded allegations in the complaint

as true, and viewing them in the light most favorable

to the plaintiff, plaintiff is not entitled to relief.””

While the court draws all reasonable factual infer-

ences in the light most favorable to plaintiff, it rejects

unsupported allegations, “bald assertions,” and “legal

conclusions.””*

To survive a motion to dismiss, plaintiffs’ factual

allegations must be sufficient to “raise a right to re-

lief above the speculative level....”” Plaintiffs are

“ In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1420 (3d Cir. 1997) (internal quotations and citations omitted),

see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8

(2007) (“{Wjhen a complaint adequately states a claim, it may

not be dismissed based on a district court’s assessment that the

plaintiff will fail to find evidentiary support for his allegations or

prove his claim to the satisfaction of the factfinder.”).

" Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000)

(internal quotations and citations omitted).

“* Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d

Cir. 1997) (citations omitted), see also Schuylkill Energy Res.,

Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)

(rejecting “unsupported conclusions and unwarranted inferences”);

see generally Associated Gen. Contractors of Cal., Inc. v. Cal.

State Council of Carpenters, 459 U.S. 519, 526 (1983) (“It is not

... proper to assume [plaintiff] can prove facts that it has not al-

leged or that the defendants have violated the .. . laws in ways

that have not been alleged.”).

" Twombly, 550 U.S. at 555; see also Victaulic Co. v. Tieman,

499 F.3d 227, 234 (3d Cir. 2007).

therefore required to provide the grounds of their

entitlement to relief beyond mere labels and conclu-

sions.” Although heightened fact pleading is not re-

quired, “enough facts to state a claim to relief that is

plausible on its face” must be alleged.” A claim has

facial plausibility when a plaintiff pleads factual con-

tent sufficient for the court to draw the reasonable

inference that defendant is liable for the misconduct

alleged.” Once stated adequately, a claim may be

supported by showing any set of facts consistent with

the allegations in the complaint.”

B. Sufficiency of the Complaint

Count V of the Third Amended Complaint (the

only count at issue here) alleges that Commissioner

Taylor and Warden Williams violated the Eighth

Amendment and thereby 42 U.S.C. § 1983 by exhibit-

ing deliberate indifference to decedent Barkes’ par-

ticular vulnerability to suicide as well as the general

risk of prison suicides created by First Correctional

* Twombly, 550 U.S. at 555.

” Id. at 570; see also Phillips v. County of Allegheny, 515

F.3d 224, 233 (3d Cir. 2008) (“In its general discussion, the Su-

preme Court explained that the concept of a ‘showing’ requires

only notice of a claim and its grounds, and distinguished such a

showing from ‘a pleader’s bare averment that he wants relief

and is entitled to it.’”) (quoting Twombly, 550 U.S. at 555 n.3).

* See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing

Twombly, 550 U.S. at 556).

™ See Twombly, 550 U.S. at 563 (citations omitted).

Medical’s improper staffing, training, and procedures.”

To succeed on a claim against supervisors in their

individual capacities based on prison policy or prac-

tices, plaintiffs must identify a specific policy or prac-

tice that the supervisors failed to employ and show

that: (1) the existing policy or practice created an un-

reasonable risk of Eighth Amendment injury; (2) the

supervisor was aware that the unreasonable risk was

created; (3) the supervisor was indifferent to that

risk; and (4) the injury resulted from the policy or

practice.” In the context of prison suicides, the Third

Circuit has explained that a plaintiff must: (1) identi-

fy specific training not provided that could reasonably

be expected to prevent the suicide that occurred; and

(2) demonstrate that the risk reduction associated

with the proposed training is so great and so obvious

that the failure of those responsible for the content of

the training program to provide it can reasonably be

attributed to a deliberate indifference to whether the

detainees succeed in taking their lives.”

The court dismissed Count V as it appeared in

the Second Amended Complaint because it found

plaintiffs’ allegations that Taylor and Williams were

aware of general defects in FCM’s medical services

insufficient to support an inference that they were

also aware of particular defects in FCM’s suicide

* See D.I. 152 at 99 53-58.

* See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).

* Colburn v. Upper Darby Tp., 946 F.2d 1017, 1030 (3d Cir.

1991).

screening and prevention policies.” At least with re-

gard to plaintiffs’ claim based on the failure to properly

train, supervise, and monitor FCM, this defect has

been cured. While the Second Amended Complaint

stated only that “the DOC and its administration .. .

were aware that FCM was supplying defective medi-

cal services,” the Third Amended Complaint alleges

more precise knowledge by Taylor and Williams of the

risk of suicide in Delaware prisons. Specifically, the

Third Amended Complaint alleges defendants were

aware that: (1) the suicide rate in Delaware prisons

was above the national average; (2) jailed detainees

are more at risk for suicide than incarcerated indi-

viduals; (3) the first 24 hours of a jailed detainee’s de-

tention present a heightened risk of suicide; (4) Dela-

ware prisons house both detainees and inmates; and

(5) there was only one suicide prevention policy ap-

plicable to both populations, with no enhanced pro-

tections applicable to detainees like Barkes. Viewing

these well-pleaded facts in the light most favorable to

plaintiffs suggests that Taylor and Williams were

aware of a generally elevated risk of suicide in Dela-

ware prisons and a particularly heightened risk of

suicide for jailed detainees, especially in their first 24

hours of detention. Knowing this, and also knowing

that FCM was supplying generally defective medical

services, Taylor and Williams failed to alter or amend

the applicable suicide prevention policy — a policy

* See D.I. 150 at 10-11.

they purportedly knew provided no additional safe-

guards for newly jailed detainees.

Plaintiffs have also identified particular suicide

screening deficiencies at HRYCI, the alteration of

which might have saved Barkes’ life. These include:

(1) reliance on an out-of-date intake form from the

National Commission on Correctional Health Care

that the organization disavowed in its 2003 “Stan-

dards for Health Services in Prisons”; (2) an initial

mental health evaluation that ignored the qualitative

implications of responses to individual questions (in-

cluding “Have you ever attempted suicide?”) and in-

stead based sensitive categorization of inmates solely

on the total number of “positive” responses given;

(3) failure to administer indicated medications; and

(4) failure to check DOC medical files and records for

evidence of suicidal] behavior at the time of detention.

With their Third Amended Complaint, then, plain-

tiffs have alleged sufficient actual matter for this

court to reasonably infer that Taylor and Williams

were aware of and indifferent to a heightened risk of

suicide for individuals in Barkes’ situation created by

defective suicide prevention and screening policies,

and that Barkes’ injury is attributable to these defec-

tive policies. Because plaintiffs have “nudged their

claims across the line from conceivable to plausible,””

this court recommends defendants’ Motion to Dismiss

the Third Amended Complaint be denied.

* Twombly, 550 U.S. at 570.

IV. ORDER AND RECOMMENDED DISPOSI-

TION

For the reasons contained herein, it is recom-

mended that:

(1) Defendants’ Motion to Dismiss the Third

Amended Complaint (D.I. 153) be DENIED.

This Report and Recommendation is filed pur-

suant to 28 U.S.C. § 636(b1)B), Fed. R. Civ. P.

72(bX1), and D.Del.LR 72.1. The parties may serve

and file specific written objections within fourteen

(14) days after being served with a copy of this Report

and Recommendation.” The objections and response

to those objections are limited to ten (10) pages each.

The parties are directed to the court’s standing

Order in Non-Pro Se Matters for Objections Filed

under Fed. R. Civ. P. 72, dated November 16, 2009, a

copy of which is available on the court’s website,

www.ded.uscourts.gov.

Dated: July 27, 2010 /s/ Mary Pat Thynge

UNITED STATES

MAGISTRATE JUDGE

* Fen. R. Crv. P. 72(b).

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

KAREN BARKES, et al.,

Plaintiffs, "

v. _ Civil Action

FIRST CORRECTIONAL . No. 06-104-LPS

MEDICAL, et al.,

Defendants.

MEMORANDUM ORDER

Pending before the Court are Objections To Re-

port And Recommendation Regarding Motion To Dis-

miss Plaintiff’s [sic] Third Amended Complaint filed

by Defendants Stanley Taylor and Raphael Williams.

(D.I. 166.) For the reasons discussed, the Court will

overrule the Objections, adopt the Report And Rec-

ommendation (D.I. 165) issued by Magistrate Judge

Thynge, and deny Defendants’ Motion To Dismiss

(D.I. 153).

I BACKGROUND

The background relevant to this action is set

forth fully in Magistrate Judge Thynge’s July 27,

2010 Report and Recommendation (D.I. 165 at 1-3),

as well as the February 27, 2008 Memorandum

Opinion (D.I. 60 at 2-9) issued by Judge Farnan. By

way of brief summary, Plaintiffs, the surviving family

members of decedent Christopher Barkes, filed this

action pursuant to 42 U.S.C. § 1983, in connection

lla

with Barkes’ suicide at the Howard Young Correc-

tional Institute (“HYCI”). Plaintiffs’ initial Complaint

alleged Eighth Amendment violations against the

State Department of Corrections (the “DOC”); Stanley

Taylor, the Commissioner of the DOC; Raphael Williams,

Warden of the Howard Young Correctional Institute

(“HYCI”) (collectively, “the State Defendants”); and

First Correctional Medical, Inc. (“FCM”), the DOC

medical provider at the relevant time.

In February 2008, Judge Farnan granted sum-

mary judgment in favor of the State Defendants (D.I.

60-62) and entered default judgment against FCM.

(D.I. 74.) Judge Farnan also granted Plaintiffs leave

to amend the pleadings to add new claims “that may

pertain either to third parties or the parties that were

initially in the case that you want to rejoin in the

case.” (D.I. 73 at 3-4.)

Plaintiffs then filed an Amended Complaint,

which was stricken by the Court to the extent it

contained claims upon which the State Defendants

had already prevailed. (D.I. 81.) However, leave was

granted to file a second amended complaint that did

not include such claims. (Jd.) The Second Amended

Complaint was filed (D.I. 82), and Defendants moved

for dismissal. (D.I. 144.) The Court granted the Mo-

tion To Dismiss, but allowed Plaintiffs leave to amend

Count V. (D.I. 150, 158.) As a result, Count V is the

only count of the Third Amended Complaint currently

at issue.

12a

Count V of the Third Amended Complaint alleges

that Defendants Taylor and Williams violated dece-

dent’s Eighth Amendment Rights to be free from cruel

and unusual punishment by failing to supervise and

monitor FCM. By her Report and Recommendation,

Magistrate Judge Thynge recommended that the

Court deny Defendants’ Motion To Dismiss.

Ii. PARTIES’ CONTENTIONS

Defendants, Stanley Taylor and Raphael Williams,

object to the Report and Recommendation, contending

that Judge Thynge erred in dismissing Count V on

two grounds. First, Defendants contend that the facts

underlying this claim were already litigated and

decided in their favor when Judge Farnan adjudi-

cated their summary judgment motion in February

2008. Thus, Defendants contend that the relitigation

of this claim is barred by collateral estoppel.

Second, Defendants contend that Judge Thynge

erred in finding that Plaintiffs sufficiently alleged

that Defendants were personally involved in decedent

Barkes’ suicide. Because they are government offi-

cials, Defendants contend that Plaintiffs must estab-

lish that each Defendant violated the Constitution

through his individual actions. According to Defen-

dants, Judge Thynge erroneously relied on a theory of

respondeat superior to sustain Claim V.

In response, Plaintiffs contend that Count V was

introduced into this litigation well after Judge Farnan

adjudicated the 2008 summary judgment motion and

13a

raises a new claim not previously addressed by Judge

Farnan. Specifically, Plaintiffs contend that the pre-

vious claims “oncerned Defendants Taylor and Williams’

alleged failure to supervise their own personnel, but

the current Count V alleges that Defendants Taylor

and Williams failed to supervise FCM. Plaintiffs main-

tain that the allegations forming the basis of this

claim differ in significant detail from any previous

allegations considered by the Court and, therefore,

Judge Farnan’s summary judgment decision should

not bar the current claim. In addition, Plaintiffs con-

tend that Count V sufficiently alleges Defendants’

“‘personal involvement’ by virtue of their failure to

supervise FCM, which failure was a proximate cause

of Mr. Barkes’ suicide for which they are culpable.”

(D.I. 168 at 4, emphasis in original.)

Ill. LEGAL STANDARDS

When reviewing the decision of a magistrate

judge on a dispositive matter, the Court conducts a

de novo review. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ.

P. 72(bX3). A motion to dismiss and a motion for

summary judgment are considered dispositive mat-

ters and, therefore, the findings and conclusions of

the magistrate judge in connection with such motions

are reviewed de novo. Id. The Court may accept,

reject, or modify the recommendations of the magis-

trate judge. Id. The Court may also receive further

evidence or return the matter to the magistrate judge

with instructions for proceeding. Jd.

l4a

IV. DISCUSSION

Reviewing the Report And Recommendation

de novo, the Court concludes that Magistrate Judge

Thynge did not err in recommending the denial of

Defendants’ Motion To Dismiss. Collateral estoppel,

or issue preclusion, is the general rule requiring

courts to give preclusive effect to prior decisions in-

volving “an issue of fact or law [that has been] actu-

ally litigated and determined by a valid and final

judgment.” Restatement (Second) of Judgments § 27

(1980). Issue preclusion applies to a particular issue

when “(1) the identical issue was previously adju-

dicated; (2) the issue was actually litigated; (3) the

previous determination was necessary to the decision;

and (4) the party being precluded from relitigating

the issue was fully represented in the prior action.”

Jean Alexander Cosmetics, Inc. V. L’Oreal USA, Inc.,

458 F.3d 244, 249 (3d Cir. 2006); see also Nat’

R.R. Passenger Corp. v. Pennsylvania Public Utility

Comm'n, 288 F.3d 519, 525 (3d Cir. 2002). The Third

Circuit has also “considered whether the party being

precluded ‘had a full and fair opportunity to litigate

the issue in question in the prior action,’ and whether

the issue was determined by a final and valid judg-

ment.” Jd. (internal citations omitted).

In arguing for dismissal of Count V, Defendants

highlight three factual allegations noted by Judge

Thynge in her Report and Recommendation: (1) the

suicide screening form used at HYCI in 2004, (2) the

DOC’s suicide policy, and (3) the suicide rate in Del-

aware prisons compared to the national average.

15a

Defendants contend that collateral estoppel applies

because Judge Farnan already considered this evi-

dence in his summary judgment decision and, there-

fore, this evidence cannot be used to shield Plaintiffs’

current claim from dismissal. However, Judge Farnan’s

consideration of the aforementioned evidence was in a

different procedural posture and different context

than the current claim. As Plaintiffs point out, Count

V alleges a claim against Defendants for their failure

to supervise and/or monitor the activities of FCM.

This claim is quite different from the claim consid-

ered by Judge Farnan in 2008, which concerned

Defendants’ failure to train and supervise DOC per-

sonnel so as to properly recognize suicidal inmates

and care for them. Thus, when Judge Farnan consid-

ered this evidence, he did so in the context of whether

it alerted Defendants to deficiencies in their own

policies or protocols, rather than the potential impact

of the evidence vis-4-vis known deficiencies in medi-

cal care provided by FCM. In the Court’s view, these

differences in the nature of the claim are significant

and weigh against the application of collateral estop-

pel.

Moreover, Judge Farnan considered this evidence

in the context of summary judgment, concluding, at

that juncture, that there was a lack of evidence in the

record demonstrating that Defendants had knowledge

of the evidence. As Plaintiffs point out, however, the

inquiry for dismissal focuses on the sufficiency of the

allegations and not the weight of the evidence support-

ing them. New depositions of Defendants Williams

16a

and Taylor are in progress; and whether these deposi-

tions reveal further evidence in the context of the

particular claim asserted here is an issue more ap-

propriately reserved for summary judgment.

In addition, the Court notes that Judge Thynge

discussed numerous allegations set forth by Plaintiffs

in the Third Amended Complaint supporting the

claim, and not just the three pieces of evidence high-

lighted by Defendants. These additional allegations

have not been pled previously and, in the Court’s

view, they are sufficient, taken as a whole and in the

light most favorable to Plaintiff, to state a claim

against Defendants regarding their failure to super-

vise FCM, such that Count V should not be dismissed

at this juncture.

As for Defendants’ argument concerning Plain-

tiffs’ alleged failure to plead Defendants’ “personal

involvement,” the Court likewise finds no error in

Judge Thynge’s Report and Recommendation. An in-

dividual government “defendant in a civil rights ac-

tion must have personal involvement in the alleged

wrongdoing; liability cannot be predicated solely on

the operation of respondeat superior.” Evancho uv.

Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (internal

quotation marks omitted). Allegations of personal di-

rection of the alleged wrongdoing, or of actual knowl-

edge and acquiescence in the alleged wrongdoing, can

establish a defendant’s personal involvement. Jd.

“While vicarious liability is not available, supervisory

liability may attach if the supervisor implemented

deficient policies and was deliberately indifferent to

17a

the resulting risk or if the supervisor’s actions and

inactions were ‘the moving force’ behind the harm

suffered by the plaintiff.” Jackson v. Taylor, 2006 WL

2347429, at *2 (D. Del. May 12, 2006) (citing Sample

v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989)).

Defendants contend that Judge Thynge “erred in

finding that an inference could be drawn showing

that Defendants Taylor and Williams were personally

involved in the decedent Barkes’ suicide, when Plain-

tiffs failed to plead that each defendant, through

their [sic] individual actions, had violated the Consti-

tution.” (D.I. 166 at 10.) However, the wrongdoing

alleged as the constitutional violation in the Third

Amended Complaint is not decedent Barkes’ suicide.

Rather, the thrust of Count V is that Defendants com-

mitted the constitutional wrong of failing to supervise

and/or monitor FCM, such that this failure subse-

quently gave rise to decedent Barkes’ suicide. Thus,

whether Defendants were personally involved in de-

cedent Barkes’ suicide is not the appropriate inquiry.

The proper inquiry is whether Plaintiffs have ade-

quately pled Defendants’ personal involvement in the

constitutional wrong of failing to supervise FCM.

In this case, Plaintiffs have sufficiently alleged

personal knowledge by Defendants of deficiencies in

FCM’s care of inmates and facts related to the suicide

rates of inmates and jailed detainees, as well as a

suicide proclivity on the part of decedent Barkes, in

particular. Plaintiffs have also alleged a series of in-

actions by Defendants concerning their failure to ade-

quately monitor FCM in these circumstances. Taking

18a

these allegations in the light most favorable to Plain-

tiffs, the Court concludes that they are sufficient to

allege Defendants’ personal involvement in the con-

stitutional wrong of failure to supervise and/or moni-

tor FCM.

Accordingly, the Court concludes that Judge

Thynge correctly concluded that the allegations of

Count V are sufficient, at this juncture, to withstand

dismissal.

NOW THEREFORE, IT IS HEREBY ORDERED

that:

1. Defendants’ Objections to Magistrate Judge

Thynge’s Report And Recommendation Regard-

ing Motion To Dismiss Plaintiffs’ Third Amended

Complaint (D.I. 166) are OVERRULED.

2. The Report and Recommendation Regarding Mo-

tion To Dismiss Plaintiff’s Third Amended Com-

plaint (D.I. 165) is ADOPTED and Defendants’

Motion To Dismiss Plaintiff’s Third Amended

Complaint (D.I. 153) is DENIED.

DATE. 2-18-11 /s/ Mary P. Thynge

UNITED STATES

MAGISTRATE JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.