Petition for Writ of Certiorari — Richardson v. Dodds

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No. 10- DEC 1- 2010

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

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RANDY RICHARDSON, in his individual capacity,

Petitioner,

THOMAS CARL DODDS, JR.,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE UNITED

STATES Court OF APPEAL FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Eric D. Corron

Counsei of Record

Curis J. COLLINS

STEPHEN L. GERIES

COLLINS, ZORN & WAGNER, PC.

429 NEC 50th — Second Floor

Oklahoma City, OK 73105

(405) 524-2070

eric@czweglaw.com

Attorneys for Petitioner

233529 ce

COUNSEL PRESS

800) 274-3321 © (800) 359-6859

QUESTIONS PRESENTED

Whether the Tenth Circuit’s decision that a Sheriff

can be held liable in his individual capacity for the mere

acquiescence in a policy that he did not adopt or

implement contradicted this Court’s precedent stated

in Ashcroft v. Iqbal, —- U.S. __, 129 S.Ct. 1937, 173

L..Ed.2d 868 (2009), that a supervisor may only be held

liable for violations of the Constitution by virtue of the

supervisor’s own individual actions, and not for a

Supervisor’s mere acquiescence in a subordinate’s

actions.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS ...

TABLE OF CITED AUTHORITIES

OPINION BELOW .

STATEMENT OF JURISDICTION .....

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE CASE ..

Factual Background ..

Procedural Background

SUMMARY OF THE ARGUMENT

ARGUMENT ..

THE CIRCUIT COURTS’

DIVERGENCE FROM /QBAI

A. Ashcroftv. Iqbal, US.__,1298.Ct.

1937, 173 L.Ed.2d 868 (2009) .

Table of ¢ ontents

The Tenth Cireuit’s Decision

Conflicts with the United States

Supreme Court’s Decision in /qbal

CONCLUSION

TABLE OF CITED AUTHORITIES

Pag

CASES:

al-Kidd v. Ashcroft,

580 F.3d 949 (9th Cir. 2009) ............... 15

Ashcroft v. Iqbal,

__ US. _,1298.Ct. 1937, 173 L.Ed.2d

I ec oe a eae eat DAassvm

Camilo-Robles v. Zapata,

176 F.3d 41 (lat Cit, 1908) ... 1... ccc cence: 15

Keating v. City of Miami,

598 F.3d 753 (11th Cir. 2010) ........... mn 16

Larez v. City of Los Angeles,

946 F.2d 630 (9th Cir. 1991) ....... ney eee 15

Jenkins v. Wood,

81 F.3d 988 (10th Cir. 1996) ................ 1]

Monell v. New York City Dept. of Social Servs.,

BSG US. GOR CIGTE) 6. vc cc ce cc cecec. 7, 33, 38, ie

Poolaw v. Marcantel,

565 F:3d 72) (20th Cir. 2009) ..........%.... 10

Rizzo v. Goode,

ae ee ee ok we hv oe ee ee Res . 2 oe

Sanchez v. Peretra-Castillo,

BOO F.3d 31 (ist Cin, BOO) .... ec ccc ce ween: 14, 15

’ y

Cite dA WHfhAOrilles

Serna v. Colorado Department of Corrections, |

455 F.3d 1146 (10th Cir. 2006) ............ ) 10

Woodward v. City of Woriand,

S77 F.2a 1392 (10th Cir. 1992) ...........: 1]

CONSTITUTION:

U.S. CrOnNeT: amend. AV, 9 4 ow. ce ceveecncces: l

STATUTES:

es WR) os 6 ek nae nese es arene l

28 U.S.C. $ 1331 3

AZ UAL. $ 19SS .....2.. me: .. passim

TABLE OF APPENDICES

APPENDIX A — APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF

OKLAHOMA, FILED AUGUST 6, 2010 ....

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

DEE BUGLE BOO ssc ccvccssesseess

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT FILED

ee IED By SRPEND 6c cei e stances estscess

]

OPINION BELOW

The opinion of the Court of Appeals is reported and

is set out at pages la - 58a of the Appendix to the

Petition for Writ of Certiorari (“Pet. App.”). The District

Court’s opinion is unreported and is set out at pages

59a - 64a in the Pet. App.

STATEMENT OF JURISDICTION

The Court of Appeals entered its judgment on

August 6, 2010. Thereafter, Petitioner filed a Petition

for Rehearing En Banc on August 20, 2010, which was

denied by the Court of Appeals on September 2, 2010.

(65a-66a) This Court has jurisdiction under 28 U.S.C. $

1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

U.S. Const. amend. XIV, § 1

All persons born or naturalized in the United

States and subject to the jurisdiction thereof,

are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

42 U.S.C. § 1983

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within

the jurisdiction thereof tc the deprivation of

any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in

equity, or other proper proceeding for

redress, except that in any action brought

against a judicial officer for an act or omission

taken in such officer’s judicial capacity,

injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory

relief was unavailable. For the purposes of this

section, any Act of Congress applicable

t exclusively to the District of Cotumbia shall

be considered *: be a statute of the District

of Columbia.

STATEMENT OF THE CASE

This case presents an opportunity for the Court to

review the manner in which some circuit courts,

including the United States Court of Appeals for the

Tenth Circuit, have departed from this Court’s decision

in Ashcroft v. Iqbal, U.S. __, 129 S.Ct. 1937 (2009),

and to remedy the split which has occurred among the

circuits regarding the standard required to hold a

supervisor liable in his individual capacity. The case also

presents an opportunity for this Court to review the

clarity of the law on this issue.

This case arises out of Respondent Thomas Car]

Dodds, Jr.’s (“Dodds”) brief incarceration in the Logan

County Detention Center following his arrest on charges

of failure to register as a sex offender. Dodds filed this

lawsuit under 42 U.S.C. § 1983, alleging violations of his

constitutional rights, including a claim that Petitioner

Randy Richardson, former Sheriff of Logan County,

violated his Fourteenth Amendment rights to due

process when Dodds was allegedly denied the

opportunity to post bail. The basis for the district court’s

jurisdiction was 28 U.S.C. § 13381.

l. Factual Background

In April of 2007, the Logan County District

Attorney’s office sent the Sheriff’s Department a

Felony Warrant for Dodds’ arrest for “Failure to

set Plaintiff’s bond at $5,000.00. The Felony Warrant

was signed by a district court judge and was a facially

valid warrant. On Friday, April 6, 2007, Dodds was

arrested pursuant to the facially valid warrant. Former

Sheriff Richardson was not present and did not

personally participate in Dodds’ arrest.

The policy of the Logan County Court Clerk’s office

prohibited individuals charged with a felony from

posting bond until they had gone before a judge and

had been arraigned and prevented arrestees from

posting bond after hours on felony warrants. Because

Plaintiff was arrested on a Friday evening, pursuant to

the Court Clerk’s policy, he could not be arraigned until

Monday and could not post bond until that time. Thus,

it was this policy of the Court Clerk’s office, and no action

of former Sheriff Richardson, that caused Dodds’

continued detention.

Plaintiff was arraigned on Monday, April 9, 2007. At

the arraignment, the district court reset his bond to

$10,000.00. Plaintiff did not pay the bond at that time.

On Wednesday, April 11, 2007, the district court issued

an order permitting Plaintiff to be released on his own

recognizance. Plaintiff was released on that date.

Plaintiff testified he knows of no action former Sheriff

Richardson personally took to deny him bail.

2. Procedural Background

Plaintiff sued various officials, including former

Logan County Sheriff Richardson, in his individual

capacity, alleging the arrest and his imprisonment

violated his constitutional rights under the Fourth and

Fourteenth Amendments.' He further alleged that these

1. Dodds dismissed his false arrest and imprisonment

claims on July 30, 2009. (Doc. 66).

rights were violated because he was not permitted to

immediately post bail.

Former Sheriff Richardson filed a Motion for

Summary Judgment based, in part, on qualified

immunity. Richardson argued that Dodds had failed to

sufficiently demonstrate his personal involvement in the

acts about which Dodds complained, as required for an

individual capacity § 1988 lawsuit. He further argued

that he took no action which violated clearly established

constitutional rights of which a reasonable person in his

position would have known. Specifically, Richardson

argued Dodds had failed to demonstrate that he in any

manner personally participated in the alleged delay in

the posting of bail and it was not clearly established that

liability could lie against Richardson, in his individual

capacity, without a showing of personal participation.

The Court denied former Sheriff Richardson’s Motion

for Summary Judgment, finding that, although Dodds

had failed to demonstrate any personal participation

whatsoever on behalf of Richardson, an inference could

be made that Richardson had acquiesced in the delay of

permitting Plaintiff to post bail.

On appeal, the Tenth Circuit affirmed the district

court’s decision, stating:

Whatever else can be said about /gbal, and

certainly much can be said, we conclude the

following basis of § 1988 liability survived it

and ultimately resolves this case: § 1983 allows

a plaintiff to impose lability upon a defendant

supervisor who creates, promulgates,

implements, or in some other way possesses

responsibility for the continued operation of

a policy the enforcement (by the defendant

supervisor or her subordinates) of which

“subjects, or causes to be subjected” that

plaintiff “to the deprivation of any rights...

secured by the Constitution ... .”

The Tenth Circuit went on to say that “[a] plaintiff may

therefore succeed in a § 1983 suit against a defendant

supervisor by demonstrating: (1) the defendant

promulgated, created, implemented or possessed

responsibility for the continued operation of a policy

that (2) caused the complained of constitutional harm,

and (3) acted with the state of mind required to establish

the alleged constitutional deprivation.”

SUMMARY OF THE ARGUMENT

This case presents an exceptionally important

question of federal law on which this Court has provided

guidance; unfortunately, the circuits (ineluding the

Tenth Circuit) have ignored this Court’s guidance and

are now in conflict with the precedent set in /qbal. The

foundational question in this case is whether

constitutional principles allow a supervisor to be held

liable in his individual capacity for his mere acquiescence

in a policy that he did not adopt or implement.

ARGUMENT

I. THE CIRCUIT COURTS’ DIVERGENCE FROM

IQBAL.

Based on the opinions of the circuit courts since /qbal

and this Court’s consideration of the applicable standard

for holding a supervisory government official liable in

his individual capacity, it ts clear that the various circuit

courts have diverged from the principles this Court

established therein.

A. ASHCROFT V. IQBAL, _ U.S. _, 129 S.Ct.

1937, 173 L.Ed.2d 868 (2009).

As the United States Supreme Court stated in /qbal,

government officials may not be held liable pursuant to

§ 1983 for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.

Iqbal, 129 S.Ct. at 1948. Because vicarious liability is

inapplicable in a § 1983 case, the plaintiff must plead

that each defendant violated the Constitution through

his own actions. Jd. See also Monell v. New York City

Dept. of Socral Servs., 436 U.S. 658, 691 (1978) (finding

no vicarious liability under 42 U.S.C. § 1983).

The respondent in /qgbal, a Muslim Pakistani pretrial

detainee who alleged government officials took

unconstitutional actions against him during his

confinement, argued that, under a theory of

“supervisory liability,” petitioners could be liable for

“knowledge and acquiescence” in their subordinates’

discriminatory acts. /d. at 1949. In other words, the

respondent’s argument was that a supervisor’s mere

knowledge of and acquiescence in his subordinate’s

unconstitutional actions was tantamount to the

supervisor violating the Constitution.

This Court rejected the respondent’s argument and

concluded that the idea of “supervisory liability,” in and

of itself, was inconsistent with the principle that

petitioners cannot be held accountable for their

subordinates’ injurious acts in a § 1983 suit. /d. at 1949.

As the Court stated, in a § 1983 lawsuit, where masters

do not answer for the torts of their servants, the term

“supervisory liability” is a misnomer. /d. Furthermore,

in the context of determining whether there is a violation

of a clearly established right to overcome qualified

immunity, purpose rather than knowledge is required

to impose § 1983 liability on the official charged with

violations arising from his or her superintendent

responsibilities. Jd. Based on Jqbal, when a plaintiff sues

an official under |[...] § 1983 for conduct “arising from

his or her superintendent responsibilities,” the plaintiff

must prove not only that the official’s subordinates

violated the Constitution, but that the official by virtue

of his own conduct and state of mind did so as well. /d.

at 1949.

When the supervisory capacity claim is based on an

employee's adherence to a policy, the plaintiff, according

to Igbal, must demonstrate more than the supervisor’s

mere acquiescence in the employee’s act:

To state a claim based on a violation of a

clearly established right, respondent must

plead sufficient factual matter to show that

petitioners adopted and implemented the

detention policies at issue not for a neutral,

investigative reason but for the purpose of

discriminating on account of race, religion, or

national origin.

Iqbal at 1948-49.

Thus, the /gbal opinion emphatically rejected the

idea that supervisory liability based on the supervisor’s

mere acquiescence in a subordinate’s actions exists in §

1983 jurisprudence. As Justice Souter recognized in his

dissenting opinion, the majority essentially did away with

the theory of supervisory liability based only on such

acquiescence in Bivens and § 1983 actions. Justice

Souter noted that Iqbal sought to recover “on a theory

that Ashcroft and Mueller at least knowingly acquiesced

(and maybe more than acquiesced) in the discriminatory

acts of their subordinates.” /gbal at 1957, (Souter, J.,

dissenting). However, the majority opinion expressly

rejected this theory. See [qbal at 1949 (“We reject this

argument. Respondent’s conception of ‘supervisory

liability’ is inconsistent with his accurate stipulation that

petitioners may not be held accountable for the

misdeeds of their agents.”). Justice Souter’s

understanding of the majority’s decision was stated as

follows:

[jest there be any mistake, in these words the

majority is not narrowing the scope of

supervisory liability; it is eliminating Bivens

supervisory liability entirely. The nature of a

supervisory liability theory is that the

supervisor may be liable, under certain

conditions, for the wrongdoing of his

subordinates, and it is this very principle that

the majority rejects.

Iqbal at 1957,(Souter, J., dissenting).

B. THE TENTH CIRCUITS DECISION

CONFLICTS WITH THE UNITED STATES

SUPREME COURT’S DECISION IN IQBAL.

The Tenth Circuit’s opinion issued in this case

clearly conflicts with /gbal. Pursuant to /gbal, Dodds

was required to demonstrate more than Richardson’s

mere acquiescence in the detention center employees’

actions in detaining him pursuant to the court clerk’s

policy. Jgbal at 1948-49. Significantly, Dodds did not

dispute that Richardson neither created nor

implemented this policy. However, based on the

reasoning in cases such as Serna v. Colorado

Department of Corrections, 455 F.3d 1146, 1151-52 (10th

Cir. 2006), that preceded this Court’s opinion in /qgbal,

the Tenth Circuit concluded former Sheriff Richardson

could be held liable in his individual capacity for his

acquiescence.

Prior to the Supreme Court’s opinion in /qgdal, the

Tench Cireuit required a plaintiff asserting liability

based on a defendant’s role as a supervisor to establish

a deliberate, intentional act by the supervisor. Serna,

455 F.3d at 1151. A plaintiff had to establish that the

defendant set in motion a series of events that the

defendant knew or reasonably should have known would

cause others to deprive the plaintiff of his constitutional

rights. Poolaw v. Marcantel, 565 F.3d 721, 732-33 (10th

Cir. 2009). The plaintiff also had to show the supervisor

had a culpable state of mind and acted knowingly or with

‘deliberate indifference’ that a constitutional violation

would occur. Serna, 455 F.3d at 1151, 1154.

”Proof of a supervisor’s personal direction or

knowledge of and acquiescence in a constitutional

violation often sufficed to meet the personal

involvement, causal connection, and deliberate

indifference prongs of the affirmative link requirement

for § 1983 supervisory liability” in the Tenth Circuit.

Dodds at *6, citing Jenkins v. Wood, 81 F.3d 988, 995

(10th Cir. 1996) and Woodward v. City of Worland, 977

F.2d 1392, 1399-1400 & n.11(10th Cir. 1992). Based on

this Court’s decision in /qbal, this standard of the Tenth

Circuit is no longer sufficient. Although the Jqbal

Court’s conclusion that a supervisor cannot be liable

based on asubordinate’s acts was clear, the Tenth Circuit

found /qgbal’s meaning to be “elusive” and its analysis

regarding supervisory liability claims remains largely

unchanged.

In support of maintaining the status quo, the Tenth

Circuit reasoned that /qbal “does not purport to

overrule existing Supreme Court precedent.”

Specifically, the Tenth Circuit cited to Rizzo v. Goode,

423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) and

Monell v. Dep’t of Socral Serv., 486 U.S. 658 (1978) to

find that “|wJhile /gbal may very well have abrogated §

1983 supervisory liability as we previously understood

it in this circuit, we do not believe it altered the Supreme

Court’s previously enunciated § 1983 causation and

personal involvement analysis.” Dodds at *9. In footnote

9, the Tenth Circuit explains that, long before /qgdal,

this Court interpreted Rizzo as imposing an “affirmative

link” requirement that a supervisor must have

participated or acquiesced in the purported

constitutional deprivation. Dodds at p. 27, n. 9. The

Tenth Circuit concluded that “(nJjothing in /qgbal

contradicts this longstanding interpretation of § 1983’s

language.” Dodds at p. 29.

Interestingly, although the Tenth Circuit contends

that Jqgbal “does not purport to overrule existing

Supreme Court precedent,” it fails to mention that

neither Rizzo nor Monell were cases involving claims

made against a supervisor in his individual capacity. The

ambiguity created by the Tenth Circuit in this opinion

is readily apparent. Rizzo dealt with claims made against

officials in their official capacities. Jd. at 365. In Monell

the individual Defendants were sued only in their official

capacities. 7d. at 661. In neither of these cases did the

Supreme Court discuss the liability of a supervisor in

his rdividual capacity. These cases dealt strictly with

the hability of municipalities and officials in their official

capacities, which this Court has made clear is the same

as suing the municipality. Jd. at 690.

Iqbal clearly dealt with claims made against John

Ashcroft, the former Attorney General of the United

States, and Robert Mueller, the Director of the Federal

Bureau of Investigation in their individual capacities.

Id. at 1942. In fact, the Supreme Court did not even

cite to Rizzo in its /gbal decision and it cited to Monell

on only one occasion, simply for the purpose of

establishing that “Government officials may not be held

liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.”

Iqbal, at 1948. The Tenth Circuit’s reliance on Rizzo

and Monell is misguided and demonstrates the need for

clarification on this Court’s holding in /qbal.

Based on this reasoning and on the law which was

in place in the Tenth Circuit prior to the /gbal decision,

the Tenth Circuit concluded former Sheriff Richardson’s

mere acquiescence in the detention center employees’

actions in detaining him pursuant to the court clerk’s

policy was sufficient to hold him liable in his individual

capacity. The contradiction between the Tenth Circuit's

analysis in Dodds and the Supreme Court’s reasoning

in Jgbal is apparent. While the /qgbal Court expressly

rejected the respondent’s argument that a supervisor’s

mere acquiescence in an unconstitutional act or purpose

results in the supervisor’s liability, the panel in Dodds

concluded that the “acquiescence” portion of pre-/gbal

supervisory liability law still exists.

Furthermore, although the Tenth Circuit does “not

believe [/qbal] altered the Supreme Court’s previously

enunciated sec.1983 causation and personal involvement

analysis,” Dodds, at p. 25, the dissent in /gbal viewed

the majority’s opinion as completely eliminating

supervisory liability. /gba/, 129 S.Ct. at 1957, (Souter,

J., dissenting).

In this case, the issue centers on what action former

Sheriff Randy Richardson took and whether that was

sufficient to establish liability against him in his

individual capacity. It is undisputed that he was not in

any way personally involved in Dodds’s detention or

attempts to post bail. Richardson did not create or

implement any policy regarding bail. He had no

knowledge of Dodds’s issue with bail and could not have

— “by virtue of his own conduct and state of mind” -

violated the Constitution. /gbal, 129 S.Ct. at 1949. At

most, Richardson acquiesced in his subordinates’

compliance with the then-existing policy set by others

in the county. The Supreme Court in /qbail clearly

determined such acquiescence was insufficient to show

Richardson’s “own individual actions” resulted in a

constitutional violation. /d. at 1948.

C. THE CIRCUIT COURTS’ SPLIT FROM

IQBAL.

Since the Supreme Court decided /qbal on May 18,

2009, numerous Circuit courts have issued published

and unpublished opinions dealing with /qbal. In many

of these opinions, the Circuits interpret and apply the

Iqbal opinion differently from each other and differently

from the dissent’s summarization of the majority opinion.

It is apparent from these opinions that the holding of

the majority opinion in /qbal is unclear. For example, in

Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009),

the First Circuit “read plaintiff’s complaint to assert a

claim of supervisory liability under Section 1983 against

the administrative correctional defendants... premised

on the theory that those defendants failed to adequately

train the correctional defendants who were implicated

in the surgery itself.” /d., at 49. After citing /qbal for

the proposition that “government officials may not be

held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior,”

the First Circuit went on to explain that “supervisory

liability typically arises in one of two ways: either the

supervisor may be a ‘primary violator or direct

participant in the rights-violating incident,’ or liability

may attach ‘if a responsible official supervises, trains,

or hires a subordinate with deliberate indifference

toward the possibility that deficient performance of the

task eventually may contribute to a civil rights

deprivation.” /d., at 49 (citing Camilo-Robles v. Zapata,

175 EF3d 41, 44 (1st Cir. 1999). The First Circuit stated,

“In either case, the plaintiff in a Section 1983 action must

show ‘an affirmative link, whether through direct

participation or through conduct that amounts to

econdonation or tacit authorization,’ between the actor

and the underlying violation.” Jd.

Likewise, in al-Kidd v. Ashcroft, 580 F.3d 949 (9th

Cir. 2009), the Ninth Circuit, citing to /qbal, stated

“Neither a 42 U.S.C. § 1983 nor a Bivens action will hold

a supervisor strictly vicariously liable for the actions of

his subordinates under a theory of respondeat superior.”

Id. at 964. However, the Ninth Circuit continued and

set forth that “{s]upervisors can be held liable for the

actions of their subordinates (1) for setting in motion a

series of acts by others, or knowingly refusing to

terminate a series of acts by others, which cause others

to inflict constitutional injury; (2) for culpable action or

inaction in training, supervision, or control of

subordinates; (3) for acquiescence in the constitutional

deprivation by subordinates; or (4) for conduct that

shows a ‘reckless or callous indifference to the rights of

others.’” /d., at 965 (citing Larez v. City of Los Angeles,

946 F:2d 630, 646 (9th Cir. 1991). In facet, under Ninth

Circuit precedent any one of these is sufficient to

establish the personal involvement of the defendant in

a constitutional violation. /d

Finally, in Keating v. City of Miami, 598 F.3d 753

(11th Cir. 2010), the Eleventh Circuit, without citing to

Iqbal in its analysis of the supervisory liability standard,

states “It is well established that § 1983 claims may not

be brought against supervisory officials on the basis of

vicarious liability or respondeat superior.” Jd. at 762.

The Eleventh Circuit continued, “However, supervisors

are liable under § 19838 either when the supervisor

personally participates in the alleged constitutional

violation or when there is a causal connection between

actions of the supervising official and the alleged

constitutional violation.” /d. (internal quotations

omitted). This “causal connection” can be established

by “facts which support an inference that the supervisor

directed the subordinates to act unlawfully or knew that

the subordinates would act unlawfully and failed to stop

them from doing so.” Jd. It appears the Eleventh Circuit

is simply continuing the blanket application of the

“deliberate indifference” standard for supervisory

liability.

As is apparent, many of the Circuits continue to

utilize precedents and standards for supervisory liability

that are in stark contradiction to this Court’s

pronouncements in /qbal. These Circuits contradict one

another and the dissent’s summary of the majority

opinion in /qgbal. It is apparent from these cases that

the Circuits have found the holding of the majority

opinion in /qgbal to be “elusive.” Specifically, the Iqbal

opinion emphatically rejected the idea that supervisory

liability based on the supervisor’s mere acquiescence

in a subordinate’s actions exists in § 1983 jurisprudence.

Yet, the First, Ninth, Tenth, and Eleventh Circuits

continue to utilize their prior divergent precedents in

this regard.

CONCLUSION

This case presents an opportunity for this Court to

remedy the dissension among the circuits regarding the

standard required to hold a supervisor liable in his

individual capacity. As discussed above, it is apparent

from the varying interpretations of the /gbal opinion

with regard to supervisory liability that clarity is

necessary. The dissent in /qbal viewed the majority’s

opinion as completely eliminating supervisory liability.

Iqbal, 1298.Ct. at 1957, (Souter, J., dissenting) However,

the Tenth Circuit does “not believe [/qbal] altered the

Supreme Court’s previously enunciated sec.1983

causation and personal involvement analysis,” Dodds,

at p. 25, and the other circuits have continued to utilize

their prior divergent precedents. Specifically, the Tenth

Circuit erred in determining that Petitioner former

Sheriff Randy Richardson could be held liable in his

individual capacity for acquiescing in his subordinates’

compliance with the then-existing policy set by others

in the county, and the petition for a writ of certiorari

should be granted.

Respectfully submitted,

ERIC D. COTTON

Counsel of Record

CHRIS J. COLLINS

STEPHEN L. GERIES

COLLINS, ZORN & WAGNER, PC.

429 NE 50th — Second Floor

Oklahoma City, OK 73105

(405) 524-2070

eric@czwglaw.com

Attorneys for Petitione

APPENDIX

APPENDIX A — APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE WESTERN

DISTRICT OF OKLAHOMA

FILED AUGUST 6, 2010

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 09-6157

614 F.3d 1185

\ugust 6, 2010, Filed

THOMAS CARL DODDS, JR

Plaintiff-Ap}

RANDY RICHARDSON, Sherif, individua

LOGAN COUNTY SHERIFF’S DEPARTMENT;

DAVID LANDMAN, Deputy, official capacity, JOHN

DOE, Deputies 1-6 (arresting deputies and jailers)

individually and in their official capacities; LOGAN

COUNTY SHERIFF, sued as “The Sheriff of Logar

County in his Official Capacity,”

Defendant

APPEAL FROM THE UNITED STATES DISTRIC'!

COURT FOR THE WESTERN DISTRICT OF

OKLAHOMA. (D.C. No. 5:08-CV-00333-R)

ippendix A

James Richard McClure, Muskopgee, Oklahoma, for

Plaintiff-Appellee

Eric Devalson Cotton (¢ yhristopher James Collins with

him on the briefs), Collins, Zorn & Wagner, RC

Oklahoma City, Oklahoma, for Defendant-Appellant.

Before TYMKOVICH, SEYMOUR, and BALDOCK

Circuit Judge

BALDOCK, Circuit Judy

Plaintiff Thomas Car! Dodds, Jr. brought this 42

U.S.C. § 1988 suit, alleging Defendant former Loar

County, Oklahoma Sheriff Randy Richardson violated

his Fourteenth Amendment due process rights I)

depriving him of his protected liberty interest in posting

bail. The district court denied Defendant's claim t

qualified immunity in the context of summary Judgment,

and Defendant appealed. Exercising jurisdictio:

ursuant to 2% | WAS, we aftirn

Logal Lount (oKianoma nerifl ley Le arr Led

: }

Plaintiff pursuant to a felony arrest warrant and placed

him in the Logan County Jail on Friday, April 6, 2007

An Oklahoma state district court judpe set bond for

Plaintiff in the arrest warrant in the amount of $ 5,000

Plaintiff allege Lovan County, Jail emplovees told tw

Appendix A

individuals who inquired about posting bond on his

behalf that he could not post the preset bail until after

he was arraigned by a judge. Plaintiff was not arraigned

until Monday, April 9. At that time, another state district

judge reset bail at $ 10,000. Plaintiff did not post bail.

Later that week, the district court nevertheless released

Plaintiff on a personal recognizance bond. The charges

against Plaintiff underlying the arrest warrant were

eventually dismissed in September 2007. Subsequently,

Plaintiff filed suit under 42 U.S.C. § 1983 against, among

others, Defendant in his individual capacity. Plaintiff

asserted in his complaint he “had a liberty interest in

the pre-set bond under the Fourteenth Amendment,”

but Defendant denied him “such, without explanation,

in violation of the [United States] Constitution.”

Detendant filed a motion for summary judgment

claiming he was entitled to qualified immunity because

the policy of the Logan County court clerk or district

judges prevented individuals charged with a felony from

posting bond after hours. According to Defendant, this

policy rather than any action taken by him personally

caused the alleged deprivation of Plaintiff’s liberty.

Dodds v. Logan County Sheriff’s Dep’t., No. 08-CV-

00333-R, Order at *2 (W.D. Okla. Aug. 3, 2009) (Doc. #

75). In an affidavit submitted to the district court and

incorporated into Defendant’s motion, the Logan

County court clerk stated that for “at least the past

eighteen years” “Logan County has [had] a local rule

preventing individuals charged with a felony from

posting bond until they have gone before a judge and

been arraigned.” Aplt’s App. at 138. The clerk also

Appendix A

confirmed that “[i]t is the policy of the Court Clerk’s

office not to permit the Sheriff’s office to accept bonds

after hours on felony warrants.” Id. Evidently, however,

no one submitted to the district court or this Court a

copy of these local policies or stated definitively who

promulgated them. See Dodds, Order at *2 (Aug. 3,

2009).

In response to Defendant’s summary judgment

motion, Plaintiff did not allege Defendant was one of

the jail employees who told him or the individuals who

inquired about posting bail on his behalf that he may

not post the preset bail until he had been arraigned by

a judge. Instead, Plaintiff responded that an Oklahoma

sheriff is responsible for his county jail and has a duty

to allow an arrestee such as Plaintiff to post bond. Id.

(citing 57 Okla. Stat. § 47 (“The sheriff . . . shall have

charge of the county jail of his county and of all persons

by law confined therein, and such sheriff. . . is hereby

required to conform, in all respects, to the rules and

directions promulgated pursuant to [74 Okla. Stat. §

192] and of the district judge and communicated to him

by the proper authority.”); 22 Okla. Stat. § 1101(A)

(“Except as otherwise provided by law, bail . . . shall be

admitted upon all arrests in criminal cases where the

offense is not punishable by death and in such cases it

may be taken by and of the persons. . . authorized by

law to arrest, [and] to imprison offenders... .”); Okla.

Att’y. Gen. No. 69-138 (1969) (“In criminal cases except

cases punishable by death .. . a sheriff is required to

accept bail, under the terms of [22 Okla. Stat. § 1101

(1961)], for those persons jailed at times other than the

Appendix A

normal working hours of the Court, provided proper bail

has been set as provided by law.”)). Plaintiff further

asserted that the court clerk had no authority to create

or maintain its policies at the jail or to dictate bail policy

to the sheriff. Id. Therefore, according to Plaintiff, by

acquiescing in the operation of the clerk’s non-binding

policies at the jail, Defendant breached the duties

imposed by Oklahoma law to accept bail and to maintain

the jail himself, and deprived Plaintiff of his liberty

interest in posting the preset bail, in violation of the

Fourteenth Amendment. Id.

The district court denied Defendant’s motion for

summary judgment, concluding:

By accepting or acquiescing in a policy set by

the Logan County Court Clerk or district

court judges purportedly prohibiting

individuals who have been arrested from

posting bond until they have appeared before

a judge and have been arraigned and or

prohibiting the sheriff’s office from accepting

bond, Defendant Richardson knew or should

have known that Logan County deputies and

jailers would violate the constitutional rights

of arrestees like Plaintiff whose bail had been

preset in his arrest warrant by refusing to

allow them to post bail in the amount set or

accept bail, because under Oklahoma law, a

sheriff is required to accept bail which has

already been set for persons jailed at times

other than the normal working hours, and

Appendix A

individuals have a liberty interest in being

freed of detention once the amount of their

bail is set. See Gaylor v. Does, 105 F.3d 572,

576 (10th Cir. 1997). It may reasonably be

inferred that Defendant Richardson, who was

the supervisor of the deputies and jailers for

Logan County, exhibited deliberate

indifference to the due process rights of

arrestees whose bail had been pre-set to be

free of detention by acquiescing in the Logan

County policy and that his acquiescence

caused or contributed in causing the

deprivation of Plaintiff’s due process rights

by another or others. Accordingly, Defendant

Richardson has failed to show that he cannot

be liable for participating or acquiescing in the

deprivation of Plaintiff’s Fourteenth

Amendment rights. See e.g., Serna v.

Colorado Department of Corrections, 455 F.3d

1146, 1151-52 (10th Cir. 2006).

Id. at *3-*4. The district court had previously concluded

in another order that when Plaintiff was prevented from

paying the bond set in his arrest warrant pursuant to

these aforementioned policies, he “was unnecessarily

detained without a legitimate goal (none is asserted) in

violation of his due process rights.” Dodds v. Logan

County Sheriff’s Dep’t., No. 08-CV-00333-R, Order at.

*4, (W.D. Okla. July 9, 2009) (Doc. # 61) (denying the

motion for summary judgment by Defendant Sheriff of

Logan County in his official capacity).

Appendix A

Defendant appeals, challenging the district court’s

denial of qualified immunity. First, in his opening brief

he maintains Plaintiff has failed to show that he was

personally involved in preventing Plaintiff from posting

bail. Second, he asserts Plaintiff has not demonstrated

that he acted with the state of mind (“knowingly or with

‘deliberate indifference’ that a constitutional violation

would occur”) required to impose § 1983 supervisory

liability upon him. Third, Defendant argues our decision

in Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997), does not

clearly establish that his compliance with a policy that

prevents an arrestee from posting preset bail subjects

him to liability in his individual capacity.

IT.

The Supreme Court has recognized a number of

immunities from § 1983 suit and liability, including

qualified immunity. Lawrence v. Reed, 406 F.3d 1224, 1229

(10th Cir. 2005). “The doctrine of qualified immunity

protects government officials ‘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.’” Pearson v.

Callahan, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.

Ct. 2727, 73 L. Ed. 2d 396 (1982)). Once a defendant

asserts qualified immunity, the plaintiff bears the

burden of satisfying a “strict two-part test.”” McBeth

v. Himes, 598 F.3d 708, 716 (10th Cir. 2010) (quoting

Bowling v. Rector 584 F.3d 956, 964 (10th Cir. 2009)).

“The plaintiff must establish ‘(1) that the defendant

Appendix A

violated a constitutional or statutory right, and (2) that

this right was clearly established at the time of the

defendant’s conduct. ...’” Jd. (quoting Bowling, 584 F.3d

at 964).

We possess ““‘interlocutory jurisdiction over denials

of qualified immunity at the summary judgment stage

to the extent that they turn on an issue of law.’”” Zia

Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1152

(10th Cir. 2010) (quoting Fogarty v. Gallegos, 523 F.3d

1147, 1153 (10th Cir. 2008)). Therefore, we usually only

“examine the facts presented on summary judgment in

the light most favorable to the plaintiff, to determine

whether they amount to a violation of a clearly-

established right.” Walker v. City of Orem, 451 F.3d 1139,

1155 (10th Cir. 2006); Lewis v. Tripp, 604 F.3d 1221, 1225

(10th Cir. 2010) (“At the summary judgment stage. .., it

is generally the district court’s exclusive job to

determine which facts a jury could reasonably find from

the evidence presented to it by the litigants. After doing

so, the district court and we may then consider the

‘abstract’ legal questions whether those facts suffice to

show a violation of law and whether that law was clearly

established at the time of the alleged violation.” (internal

citations omitted)). Generally, we may not “‘review a

district court’s factual conclusions, such as the existence

of a genuine issue of material fact for a jury to decide,

or that a plaintiff’s evidence is sufficient to support a

particular factual inference.” Zia Trust Co., 597 F.3d at

1153 (quoting Fogarty, 523 F.3d at 1154). Within this

limited jurisdiction, “‘[w]le review de novo the district

court’s denial of a summary judgment motion asserting

qualified immunity.’”” McBeth, 598 F.3d at 715 (quoting

Bowling, 584 F.3d at 963).

Appendix A

III.

Although we are now at liberty to embark upon the

two-part qualified immunity analysis in any order we

choose, we begin in this case at the beginning: Has

Defendant violated Plaintiff’s federally protected rights?

See Pearson, 129 S. Ct. at 818 (deciding that courts may

undertake the qualified immunity analysis in any order

they choose). In doing so, we “consider[] whether the

facts taken in the light most favorable to the plaintiff

show that the defendant’s conduct violated a

constitutional right” cognizable under § 1983. Poolaw

v. Marcantel, 565 F.3d 721, 728 (10th Cir. 2009).

Plaintiff’s claim falls into a category of claims which

unfortunately have become so common that they have

acquired their own term of art: “‘overdetention,’”” 2.e.,

when “the plaintiff has been imprisoned by the

defendant for longer than legally authorized, whether

because the plaintiff’s incarcerative sentence has

expired or otherwise.” Holder v. Town of Newton, 638

F. Supp. 2d 150, 153 (D.N.H. 2009) (citing Davis v. Hall,

375 F.3d 703, 714 (8th Cir. 2004) and Barnes v. District

of Columbia, 242 FLR.D. 118, 117 (D.D.C. 2007)). “[T]he

right of an accused to freedom pending trial is inherent

in the concept of a liberty interest protected by the due

process clause of the Fourteenth Amendment.”

Meechaicum v. Fountain, 696 F.2d 790, 791-92 (10th Cir

1983). Consequently, the denial of bail must comport

with the requirements of due process. See zd. at 792

10a

Appendix A

(“[S]tate statutes restricting bail must be rational,

reasonable, and nondiscriminatory. . . . {B]Jail may not

be denied ‘without the application uf a reasonably clear

legal standard and the statement of a rational basis for

the denial.’” (quoting Atkins v. Michigan, 644 F.2d 543,

549 (6th Cir. 1931))). In Gaylor v. Does, 105 F.8d 572

(10th Cir. 1997), we further clarified the due process

protections involving bail. We declared that an arrestee

obtains a liberty interest in being freed of detention

once his bail is set because the setting of bail accepts

the security of the bond for the arrestee’s appearance

at trial and “hence the state’s justification for detaining

him fade[s].” Jd. at 576. To avoid depriving an arrestee

of due process, the government may only interfere with

this protected liberty interest, for instance by refusing

to accept lawfully set bail from the arrestee and

detaining him until some later time, if its actions

reasonably relate “to a legitimate goal.” Id. Otherwise,

the detention of such an arrestee would constitute

punishment prior to trial, in violation of due process.

Id. Other courts have similarly concluded that arrestees

whose bai] have been set have a protected liberty

interest in posting bail and being freed from detention

and, thus, depriving such arrestees of that liberty

interest may violate due process. See e.g., Campbell v.

Johnson, 586 F.3d 835, 836 (11th Cir. 2009) (explaining

that a county sheriff may be held liable for violating the

due process rights of an arrestee if he acts with

deliberate indifference in personally refusing to accept

the arrestee’s court-set bail or if his actions were

causally connected to his subordinates’ refusal of the

arrestee’s bail); Doyle v. Elsea, 658 F.2d 512, 516-17 n.6

lla

Appendix A

(7th Cir. 1981) (“For due process purposes, the

constitutional liberty interest in release on bail arises

after a magistrate has determined that an accused may

be released upon deposit of whatever sum of money will

ensure the accused’s appearance for trial.”).

The district court concluded in this case that when

Plaintiff was prevented from paying the bond set in his

arrest warrant pursuant to these abovementioned

policies, he “was unnecessarily detained without a

legitimate goal (none is asserted) in violation of his due

process rights.” Dodds, Order at *4, (July 9, 2009). For

the following reasons, we agree. Defendant has yet to

proffer any reason, let alone a “legitimate goal,” for

refusing to allow Plaintiff to post bail and detaining

Plaintiff for three days, other than the assertion that

the longstanding policies or customs at the jail, allegedly

set by either the court clerk or the district judges,

prohibited individuals charged with a felony from

posting bond until they had been arraigned by a judge

and from posting bond after hours. Gaylor teaches that

Plaintiff’s liberty interest in being freed from pretrial

detention once his bail had been set may not be denied

just because an official says it has been his practice to

do so for a long time and the practice of his predecessors

for an even longer time. Gaylor, 105 F.3d at 576-77

(explaining that due process dictates that government

officials may only interfere with an arrestee’s liberty

interest in being freed from detention in a manner

reasonably related “to a legitimate [governmental] goal,

such as insuring his appearance for trial or protecting

others from him”). We note Defendant’s counsel

12a

Appendix A

essentially conceded at oral argument the

unconstitutionality of the policies that prevented

Plaintiff from posting bail. When asked “[d]oesn’t Gaylor

make it clear that where bail has been set that it is a

violation of due process not to grant it?” Defendant’s

counsel responded “Yes, I believe Gaylor does.” We

therefore conclude Plaintiff has set forth facts that, if

proven to be true, state a violation of his constitutional

rights. Of course, that conclusion alone does not merit

denying Defendant qualified immunity.

We must now determine whether this Defendant

deprived Plaintiff of that right and whether he may be

held liable for that deprivation. See McBeth, 598 F.3d at

716 (providing that to overcome an official’s assertion

of qualified immunity and thereby subject her to suit

and liability “(t]he plaintiff must establish ‘... that the

defendant violated a constitutional or statutory right”

(quoting Bowling, 584 F.3d at 964)). To recover under §

1983, a plaintiff must establish “the violation of a right

secured by the Constitution and laws of the United

States... .” West v. Atkins, 487 U.S. 42, 48, 108 S. Ct.

2250, 101 L. Ed. 2d 40 (1988)./ Beeause a plaintiff can

1. A § 1983 plaintiff must also “show that the alleged

deprivation was committed by a person acting under color of

state law.” West, 487 U.S. at 48. Neither party in this case

disputes that the facts presented establish Defendant acted

under color of state law. They do, however, dispute whether

Defendant himself, rather than only his subordinates, violated

Plaintiff’s constitutional rights.

l3a

Appendix A

neither recover under § 1983 from a government official

nor overcome the official’s assertion of qualified

immunity without demonstrating that official violated

his constitutional or statutory rights, the legal analysis

required to surmount these separate obstacles is often

related, if not identical. As Justice Thomas explained:

In conducting qualified immunity analysis . . .,

courts do not merely ask whether, taking the

plaintiff’s allegations as true, the plaintiff’s

clearly established rights were violated.

Rather, courts must consider as well whether

each defendant’s alleged conduct violated the

plaintiff’s clearly established rights. For

instance, an allegation that Defendant A

violated a plaintiff’s clearly established rights

does nothing to overcome Defendant B’s

assertion of qualified immunity, absent some

allegation that Defendant B was responsible

for Defendant A’s conduct.

Hope v. Pelzer, 5386 U.S. 730, 751 n.9, 122 8S. Ct. 2508,

153 L. Ed. 2d 666 (2002) (Thomas, J., dissenting). In

particular, as will become apparent from our discussion,

determining whether a plaintiff has demonstrated a

defendant-supervisor violated his constitutional rights

and whether § 1983 allows a plaintiff to hold a defendant

supervisor liable for that violation may depend on

whether that defendant-supervisor, rather than only his

subordinates, violated the plaintiff’s constitutional

rights. For this reason, we properly address this

question of supervisory liability now as part of the

l4da

ippendix A

qualified immunity analysis. See al-Kidd v. Ashcroft, 580

F.3d 949, 964-65 (9th Cir. 2009) (explaining that questions

of supervisory liability, though part of the substance of

a § 1983 claim, are also properly a part of the qualified

immunity inquiry).

Defendant maintains that in order to show he

violated Plaintiff’s clearly established constitutional

rights, and therefore overcome his assertion of qualified

immunity as well as hold him liable under § 1983, Plaintiff

must demonstrate that he personally participated in

such a violation with a sufficiently culpable state of mind.

Defendant points out that Plaintiff does not allege

Defendant was one of the jail employees who told him

and the individuals who inquired about posting bail on

his behalf that he could not post the bail set in his arrest

warrant until he had been arraigned by a judge. Nor

does Plaintiff contend Defendant personally instructed

those employees to refuse to accept bail from Plaintiff

the weekend of Friday, April 6, 2007. According to

Defendant in his opening brief, the “policy of the court

clerk’s office, and no action” by him deprived Plaintiff

of his federally protected rights. Defendant argues, as

a result, Plaintiff has not shown he committed any act

which violated Plaintiff’s rights or that he acted with

deliberate indifference to Plaintiff’s rights.

Defendant’s argument implicates important

questions about the continuing vitality of supervisory

liability under § 1983 after the Supreme Court’s recent

LSa

Appendix A

decision in Ashcroft v. Iqbal, 129 S. Ct. 1987, 178 L. Ed.

2d 868 (2009).* Prior to Iqbal, we held that § 1983 does

not allow a plaintiff to hold an individual government

official liable “under a theory of respondeat superior.”

Gagan v. Norton, 35 F.3d 1473, 1476 n.4 (10th Cir. 1994)

(citing Monell v. Dep't of Social Servs., 436 U.S. 658, 98

S. Ct. 2018, 56 L. Ed. 2d 611 (1978)); see also Poolaw,

565 F.3d at 732 (“[A] supervisory relationship alone is

insufficient for liability under § 1983.”). We explained

“(t]his does not mean that a supervisor may not be liable

for the injuries caused by the conduct of one of his

subordinates. It does mean that his lability is not

vicarious, that is, without fault on his part.’” Serna, 455

I.3d at.1151 (quoting Scull v. New Mewico, 236 F.3d 588,

600 (10th Cir. 2000)). “A crucial difference exists between

liability as master (respondeat superior) and direct

liability.” McClelland v. Facteau, 610 F.2d 693, 695 (10th

Cir. 1979). While respondeat superior imposes liability

for public policy reasons upon masters though they are

not at fault in any way, direct liability only imposes

liability where the plaintiff has shown the supervisor

himself “breached a duty to plaintiff which was the

proximate cause of the injury.” Id. We consequently

concluded that “‘{i]ndividual liability under § 1983 must

be based on personal involvement in the alleged

constitutional violation” but “[pJersonal involvement is

not limited solely to situations where a defendant violates

a plaintiff’s rights by physically placing hands on him.”

Fogarty, 523 F.3d at 1162 (quoting Foote v. Spregel, 118

E§8d 1416, 1428 (10th Cir. 1997)). Personal involvement

2. Neither the district court nor the parties in their

appellate briefs discussed the import of the Supreme Court’:

May 2009 decision in Iqbal

lou

ip pe ndix A

does not require direct participation because § 1988

States ™

deprived of her constitutional rights can also be held

liable.” Buck v. City of Albuquerque, 549 F.3d 1269, 1279

(10th Cir. 2008) (quoting Snell v. Tunnell, 920 F.2d 678,

700 (10th Cir. 1990)).

laJlny official who “causes” a citizen to be

sven before Iqbal, it was not enough in our circuit

“for a plaintiff merely to show defendant was in charge

of other state actors who actually committed the

violation. Instead, ... the plaintiff must establish a

deliberate, intentional act by the supervisor to violate

constitutional rights.” Serna, 455 F.3d at 1151 (internal

quotations omitted). In sum, to impose § 1988 liability

the plaintiff first had to establish “the supervisor's

subordinates violated the [Clonstitution.” Id. (internal

quotations omitted). Then, plaintiff must

demonstrate “an ‘affirmative ink’ between the

supervisor and the violation ....” Id. Over time, this

“affirmative link” requirement came to have three

related pronys: (1) personal involvement, (2) sufficient

causal connection, and (8) culpable state of mind. A

plaintiff could establish the defendant-supervisor’s

personal involvement by demonstrating his “‘personal

participation, his exercise of control or direction, or his

failure to supervise,” Poolaw, 565 F.3d at 732 (quoting

Green v. Branson, 108 38d 1296, 1802 (0th Cir. 1997)),

or his “knowledge of the violation and acquiesce| nee] in

its continuance.” Jenkins v. Wood, &1 F.3d 988, 995 (10th

Cir. 1996)). A defendant-supervisor’s promulgation,

creation, implementation, or utilization of a policy that

caused a deprivation of plaintiff's rights also could have

constituted sufficient personal involvement. See Meade

v. Grubbs, 841 F2d 1512, 1528 (Oth Cir. 1988) (stating

| 7a

Appendix A

§ 1983 liability may be imposed on a supervisor who

either “established or utilized an unconstitutional policy

or custom” or “breached a duty imposed by state or local

law which caused the constitutional violation”); Martin

A. Schwartz, Section 1983 Litigation: Claims and

Defenses, § 7.19[C] (4th ed. 2010) (“[SJupervisory

officials who promulgate[d] policies that [were] enforced

by subordinates [were] liable if the enforcement of the

policy cause[d] a violation of federally protected

rights.”).* A plaintiff then had to establish the “requisite

causal connection” by showing “the defendant set in

motion a series of events that the defendant knew or

reasonably should have known would cause others to

deprive the plaintiff of her constitutional rights.’”

Poolaw, 565 F.3d at 732-33 (quoting Snell, 920 F.2d at

700). And, finally, the plaintiff also had to show the

3. Accord Hernandez v. Keane, 341 F.3d 187, 145 (2d Cir.

2003) (“The liability of a supervisor under § 1983 can be shown

[by] . . . creation of a policy or custom that sanctioned conduct

amounting to a constitutional violation, or allowing such a policy

or custom to continue.”); Zatler v. Wainwright, 802 F.2d 397, 401

(11th Cir. 1986) (“Personal participation . ..is only one of several!

ways to establish the requisite causal connection. An official

may also be liable where a policy or custom that he established

or utilized results in deliberate indifference to an inmate’s

constitutional rights.”); Wanger v. Bonner, 621 F.2d 675, 679 (5th

Cir. 1980) (concluding that plaintiffs satisfied their burden

against a sheriff under § 1983 when they presented evidence

from which a reasonable jury could have concluded that sheriff’s

deputies acted pursuant to policies implemented by the sheriff);

Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977) (“It is

not necessary for § 1983 liability that the appellees directed

any particular action with respect to these specific individuals,

only that they affirmatively promoted a policy which sanctioned

the type of action which caused the violations.”)

18a

Appendix A

supervisor had a culpable state of mind, meaning “the

supervisor acted knowingly or with ‘deliberate

indifference’ that a constitutional violation would occur.

Serna, 455 F.3d at 1151, 1154.4 We did not view these

requirements as necessarily distinct. Proof of a

4. In City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct.

1197, 103 L. Ed. 2d 412 (1989), the Supreme Court held “the

inadequacy of police training may serve as the basis for § 1983

liability only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the police come

into contact.” After Canton, “deliberate indifference or reckless

disregard” became the primary governing standard for

supervisory liability. 1 Sheldon Nahmod, Civil Rights & Civil

Liberties Litigation: The Law of Section 1983 § 3:100 (4th ed.

1997 & Supp. 2009). See also Woodward v. City of Worland, 977

F.2d 1392, 13899 & n.11 (10th Cir. 1992) (explaining that after

Canton’s “explicit holding .. . of a scienter requirement for §

1983 liability” a plaintiff must establish supervisory liability

by alleging more than gross negligence by demonstrating “an

intentional, conscious, and deliberate act by the defendant

participating in, or knowingly acquiescing in, the

unconstitutional behavior”); Sample v. Diecks, 885 F.2d 1099,

1117-18 (8d Cir. 1989) (“Although the issue here is one of

individual liability rather than of the liability of a political

subdivision, we are confident that ... the standard of individual

liability for supervisory public officials will be found to be no

less stringent than the standard of liability for the public

entities that they serve. In either case, a ‘person’ is not the

‘moving force [behind] the constitutional violation’ of a

subordinate... unless that ‘person’... has exhibited deliberate

indifference to the plight of the person deprived.” (quoting

Canton, 489 U.S. at 389)); contra Hernandez, 341 F.3d at 145

(“The liability of a supervisor under § 1983 can be shown [by] .

.. grossly negligent supervision of subordinates who committed

a violation.” (emphasis added)).

19a

Appendix A

supervisor’s personal direction or knowledge of and

acquiescence in a constitutional violation often sufficed

to meet the personal involvement, causal connection,

and deliberate indifference prongs of the affirmative link

requirement for § 1983 supervisory liability. See

Jenkins, 81 F.3d at 995 (concluding a plaintiff may satisfy

the requirements for imposing supervisory liability

under $ 1983 by “showing the defendant-supervisor

personally directed the violation or had actual

knowledge of the violation and acquiesced in its

continuance”); Woodward, 977 F.2d at 1399-1400 & n.11

(implying that personal direction or actual knowledge

and acquiescence demonstrates’ deliberate

indifference).°

5. Our sister circuits developed similar requirements. See

Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th Cir. 2005)

(“At a minimum, a § 1983 plaintiff must show that a supervisory

official at least implicitly authorized, approved or knowingly

acquiesced in the unconstitutional conduct of the offending

subordinate.” (internal quotations omitted)); Whitfield v.

Melendez-Rivera, 431 F.3d 1, 14 (1st Cir. 2005) (“[A] supervisor

may only be held liable [under § 1983] where (1) the behavior of

[his] subordinates results in a constitutional violation and (2)

the [supervisor’s] action or inaction was affirmatively link/ed/

to the behavior in the sense that it could be characterized as

supervisory encouragement, condonation or acquiescence or

gross negligence . . . amounting to deliberate indifference.”

(internal quotations omitted)); Hernandez, 341 F.3d at 145

(“The liability of a supervisor under § 1983 can be shown [by] .

..: (1) actual direct participation in the constitutional violation,

(2) failure to remedy a wrong after being informed through a

report or appeal, (3) creation of a policy or custom that

sanctioned conduct amounting to a constitutionai violation, or

(Cont'd)

20a

Appendix A

Based at least in part on this jurisprudence, the

district court denied Defendant qualified immunity. The

district court concluded Defendant possessed

responsibility for running the jail, acquiesced in the

continuing operation of the court clerk’s or district

judges’ policies at the jail, and that “his acquiescence

caused or contributed in causing the deprivation of

(Cont'd)

allowing such a policy or custom to continue, (4) grossly

negligent supervision of subordinates who committed a

violation, or (5) failure to act on information indicating that

unconstitutional acts were occurring.”); Randall v. Prince

George's County, 302 F.3d 188, 206 (4th Cir. 2002) (stating that

“supervisory liability may attach under § 1983 if a plaintiff can

establish ....(1) that the supervisor had actual or constructive

knowledge that his subordinate was engaged in conduct that

posed a pervasive and unreasonable risk of constitutional injury

to citizens like the plaintiff; (2) that the supervisor’s response

to that knowledge was so inadequate as to show deliberate

indifference to or tacit authorization of the alleged offensive

practices; and (3) that there was an affirmative causal link

between the supervisor’s inaction and the particular

constitutional injury suffered by the plaintiff” (internal

quotations omitted)); Baker v. Monroe Twp., 50 F.3d 1186, 1194

(3d Cir. 1995) (explaining that an individual may be liable under

§ 1983 if he participated in violating the plaintiff’s rights, or he

directed others to violate them, or as a supervisor he had

knowledge of and acquiesced in his subordinates’ violations);

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

(concluding that to establish supervisory liability under § 1983

“(t]he supervisors must know about the conduct and facilitate

it, approve it, condone it, or turn a blind eye for fear of what

they might see. They must in other words act either knowingly

or with deliberate, reckless indifference”).

21a

Appendix A

Plaintiff’s due process rights by another or others”

because the policies prohibited felony arrestees,

including those whose bond had been set, from posting

bond after hours or until they had seen a judge. Dodds,

Order at *3-*4 (Aug. 3, 2009). From Defendant’s

acquiescence in the continued operation of the clerk’s

or district judges’ policies at the jail, the district court

found a reasonable jury could infer Defendant had acted

with “deliberate indifference to the due process rights

of arrestees whose bail had been pre-set to be free of

detention.” Id. at *4. As a result, the district court

determined Defendant could “be liable for participating

or acquiescing in the deprivation of Plaintiff’s

Fourteenth Amendment rights.” Id. (citing Serna, 455

F.3d at 1151-52

But then, as the saying will surely go, came Iqbal.

Federal officials arrested and detained Javaid Iqbal, a

Pakistani citizen, in the United States shortly after

September 11, 2001. Jgbal, 129 S. Ct. at 1942. In his

Bivens suit, he alleged inter alia that John Ashcroft,

the former Attorney General, and Robert Mueller, the

Director of the Federal Bureau of Investigation (FBD),

violated his equal protection rights. Jd. at 1942-43.

Justice Kennedy, writing for the Supreme Court,

explained that because Bivens is “‘the federal analog”

to § 1983 suits, “Government officials may not be held

liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.”

Id. at 1948 (citing Monell, 436 U.S. at 691). This

22a

Appendix A

statement alone adds nothing new to our law or that of

our sister circuits. But, the Court then declared

“(blecause vicarious liability is inapplicable to Bivens and

§ 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s

own individual actions, has violated the Constitution.”

Id. It explained that “(t]he factors necessary to establish

a Bivens violation” and presumably a § 1983 violation,

“will vary with the constitutional provision at issue.” Id.

Consequently, when a plaintiff alleges “invidious

discrimination in contravention of the First and Fifth

Amendments” she “must plead and prove that the

defendant acted with discriminatory purpose.” Id. Iqbal,

as a result, had to plead that Ashcroft and Mueller

“adopted and implemented the .. . policies at issue not

for aneutral ... investigative reason but for the purpose

of discriminating on account of race, religion, or national

origin.” /d. at 1948-49. Ashcroft and Mueller’s alleged

deliberate indifference to or knowledge and

acquiescence in their subordinates’ unconstitutional

conduct or discriminatory animus, alone, did not amount

to the state of mind required to establish Ashcroft and

Mueller violated equal protection guarantees—

purposeful discrimination—and the Court dismissed

Iqbal’s claims against them. /d. at 1949, 1952. Thus,

when a plaintiff sues an official under Bivens or § 1983

for conduct “arising from his or her superintendent

responsibilities,” the plaintiff must plausibly plead and

eventually prove not only that the official’s subordinates

violated the Constitution, but that the official by virtue

of his own conduct and state of mind did so as well. /d.

st 1949.

23a

Appendix A

Much has been made about this aspect of Iqbal, but

consensus as to its meaning remains elusive. Justice

Souter in his dissent, joined by Justices Stevens,

Ginsburg, and Breyer, concluded the majority did not

merely narrow, but rather eliminated supervisory

liability altogether. Jd. at 1957 (Souter, J., dissenting).

He surmised that even if Iqbal’s complaint sufficiently

alleged Ashcroft and Mueller’s “knowledge and

deliberate indifference, [the majority] presumably would

still conclude that the complaint fails to plead sufficient

facts and must be dismissed.” /d. at 1958 (Souter, J.,

dissenting). Some agree with Justice Souter’s view of

the majority’s opinion: “[T]he Supreme Court in

Ashcroft v. Iqbal . . . appears to have ruled that even

deliberate indifference with actual knowledge [of

subordinates’ unconstitutional conduct] may not be

sufficient for supervisory liability.” Nahmod, supra note

4, at § 3:100. Others posit the circuit courts’ supervisory

liability standards “only survive Iqbal to the extent they

authorize § 1983 liability against a supervisory official

on the basis of the supervisor’s own unconstitutional

conduct or, at least, conduct that set the unconstitutional

wheels in motion. The issue, then is one of causation,

i.e., whether the supervisor’s conduct was a proximate

cause of the violation of the plaintiff’s constitutional

rights.” Schwartz, supra III.B.1, at § 7.19[D]. We have

already acknowledged that Iqbal may have changed the

§ 1983 supervisory liability landscape. See Lewis, 604

F.3d at 1227 n.3 (“At one end of the spectrum, the Iqbal

dissenters seemed to believe that the majority opinion

‘eliminates ... supervisory liability entirely,’.... At the

other end of the spectrum, the Ninth Circuit has read

Iqbal as possibly holding that ‘purpose . . . is required’

merely in cases of alleged racial discrimination by

24a

Appendix A

governmental officials, given that Iqbal itself involved

allegations of racial discrimination and such

discrimination only violates the Constitution when it is

intentional. .. . Many intermediate positions are also

surely plausible.” (quoting al-Kidd, 580 F.3d at 976 n.25

(internal citations omitted)).° But because our cases

since Iqbal have thus far only presented allegations that

do not satisfy our pre-Iqbal liability standard, we have

not yet had occasion to determine what allegations of

personal involvement and mental state do meet Iqbal’s

stricter liability standard.’ See zd., 604 F.3d at 1227 n.3;

Gallagher, 587 F:3d at 1069-71.

6. We recognize that some panels of this Court after Iqbal,

but without discussing Iqbal’s statements about supervisory

liability, have continued to state part of our pre-Iqbal standard:

“(Tjhere must be ‘an affirmative link ... between the

constitutional deprivation and either the supervisor’s personal

participation, his exercise of control or direction, or his failure

to supervise.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th

Cir. 2009); see also Barrett v. Orman, No. 10-7000, 373 Fed. Appx.

823, 2010 U.S. App. LEXIS 7807, 2010 WL 1499586, *3 (10th Cir.

Apr. 15, 2010) (unpublished).

7. See also Barrett, 2010 U.S. App. LEXIS 7807, 2010 WL

1499586 at *3 (concluding that because the plaintiff’s allegations

against the defendant-supervisor do not show an affirmative

link between the constitutional deprivation and his personal

involvement, the plaintiff failed to state a claim on which relief

could be granted against the defendant); Arocho v. Nafziger,

No. 09-1095, 367 Fed. Appx. 942, 2010 U.S. App. LEXIS 4200,

2010 WL 681679 at *11 (10th Cir. Mar. 1, 2010) (unpublished)

(noting the plaintiff’s allegations do not satisfy our pre-Iqbal

standard of § 1983 supervisory liability). In this section, we cite

these unpublished cases not for their precedential value

(because, of course, they have none), but merely as examples of

our lingering pre-Iqbal jurisprudence.

25a

Appendix A

Whatever else can be said about /qbal, and certainly

much can be said, we conclude the following basis of §

1983 liability survived it and ultimately resolves this

case: § 1983 allows a plaintiff to impose liability upon a

lefendant-supervisor who creates, promulgates,

implements, or in some other way possesses

responsibility for the continued operation of a policy the

enforcement (by the defendant-supervisor or her

subordinates) of which “subjects, or causes to be

subjected” that plaintiff “to the deprivation of any rights

... secured by the Constitution... .” (quoting 42 U.S.C.

§ 1983). See Schwartz, supra JII.B.1, at § 7.19[C]

(positing that imposing liability upon officia!s for their

promulgation of a policy the enforcement of which

violates individuals’ federally protected rights holds such

officials “responsible for their own wrongs rather than

on the basis of respondeat superior liability” and,

therefore, comports with Iqbal); see also Davis v. City

of Aurora, 705 F. Supp. 2d 1243, 2010 U.S. Dist. LEXIS

32142, *47-49, 2010 WL 1348450, *17 (D. Colo. 2010)

(“The exercise of control which may create the

‘affirmative link’ does not need to be the sort of on-the-

ground, moment-to-moment control that defendants

appear to suggest. Rather, the establishment or

utilization of an unconstitutional policy or custom can

serve as the supervisor’s ‘affirmative link’ to the

constitutional violation. .. . [W]here an official with

policymaking authority creates, actively endorses, or

implements a policy which is constitutionally infirm, that

official may face personal liability for the violations which

result from the policy’s application.”). A plaintiff may

therefore succeed in a § 1983 suit against a defendant-

26a

Appendix A

supervisor by demonstrating: (1) the defendant

promulgated, created, implemented or possessed

responsibility for the continued operation of a policy

that (2) caused the complained of constitutional harm,

and (3) acted with the state of mind required to establish

the alleged constitutional deprivation.’ See Summum

8. We do not mean to imply that these are distinct analytical

prongs, never to be intertwined. The Supreme Court explained

in the context of § 1983 municipal liability:

Where a plaintiff claims that a particular municipal

action itself violates federal law, or directs an

employee to do so, resolving these issues of fault

and causation is straightforward. Section 1983 itself

‘contains no_- state-of-mind requirement

independent of that necessary to state a violation’

of the underlying federal right. In any § 1983 suit,

however, the plaintiff must establish the state of

mind required to prove the underlying violation.

Accordingly, proof that a municipality’s legislative

body or authorized decisionmaker has intentionally

deprived a plaintiff of a federally protected right

necessarily establishes that the municipality acted

culpably. Similarly, the conclusion that the action

taken or directed by the municipality or its

authorized decisionmaker itself violates federal law

will also determine that the municipal action was

the moving force behind the injury of which the

plaintiff complains.

Board of County Comm ’rs v. Brown, 520 U.S. 397, 404-05, 117 S.

Ct. 1382, 137 L. Ed. 2d 626 (1997) (quoting Daniels v. Williams,

474 U.S. 327, 330, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); see

also Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)

(“The Supreme Court observed in Brown that when an official

(Cont'd)

27a

Appendix A

v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002)

(“Under 42 U.S.C. § 1983, Summum must establish (1)

a violation of rights protected by the federal Constitution

or created by federal statute or regulation, (2)

proximately caused (3) by the conduct of a person (4)

who acted under color of any statute, ordinance,

regulation, custom[,] or usage, of any State or Territory

or the District of Columbia.” (internal quotations and

citations omitted)). Denying qualified immunity on the

basis of such a showing complies with Iqbal’s

requirement that § 1983 liability only be imposed upon

those defendants whose own individual actions cause a

constitutional deprivation because it requires plaintiffs

(Cont'd)

municipal policy itself violates federal law, issues of culpability

and causation are straightforward; simply proving the

existence of the unlawful policy puts an end to the question.”).

We think the same logic applies when the plaintiff sues a

defendant-supervisor who promulgated, created, implemented

or possessed responsibility for the continued operation of a

policy that itself violates federal law. See Dodge v. Shoemaker,

695 F. Supp. 2d 1127, 1143, 2010 WL 924249, *13 (D. Colo. 2010)

(“A supervisor’s liability under § 1983 must be predicated on

the supervisor’s deliberate indifference and a plaintiff must

show that an affirmative link exists between the [constitutional |

deprivation and either the supervisor’s personal participation,

his exercise of control or direction, or his failure to supervise . .

Supervisory liability exists even without personal

participation in the offensive act if supervisory officials

implement a policy so deficient that the policy itself is a

repudiation of constitutional rights and is the moving force of

the constitutional violation.” (internal quotations and citations

omitted)).

28a

Appendix A

prove each defendant took some act with the

constitutionally applicable state of mind that caused the

alleged constitutional violation.

Moreover, /qgbal does not purport to overrule

existing Supreme Court precedent. While Iqbal may

very well have abrogated § 1983 supervisory liability as

we previously understood it in this circuit in ways we do

not need to address to resolve this case, we do not

believe it altered the Supreme Court’s previously

enunciated § 1983 causation and personal involvement

analysis. Section 1983’s supervisory liability journey

arguably began with the Supreme Court’s decision in

Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d

561 (1976). In Rizzo, the Court concluded a mayor, police

commissioner, and other city officials could not be held

liable under § 19838 for constitutional violations

committed by unnamed individual police officers

because:

As the facts developed, there was no

affirmative link between the occurrence of the

various incidents of police misconduct and the

adoption of any plan or policy by petitioners—

express or otherwise—showing their

authorization or approval of such misconduct.

Instead, the sole causa! connection found by

the District Court between petitioners and the

individual respondents was that in the

absence of a change in police disciplinary

procedures, the incidents were likely to

continue to occur, not with respect to them,

Appendix A

but as to the members of the classes they

represented.

Id. at 371. This reasoning implies defendant-supervisors

may be liable under § 1983 where an “affirmative” link

exists between the unconstitutional acts by their

subordinates and their “adoption of any plan or policy. .

.—express or otherwise—showing their authorization

or approval of such misconduct.” /?izzo, 423 U.S. at 371.

Then Justice Rehnquist writing for the Court

contrasted the facts presented by Rizzo with those in

Hague v. CTO, 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1428

(1939). In Hague, the Court affirmed the imposition of

§ 1983 liability upon defendants, including a mayor and

chief of police, for adopting and enforcing deliberate

policies “of excluding and removing the plaintiff’s labor

organizers ....implemented ‘by force and violence’ on

the part of individual] policemen.” /2zz0, 428 U.S. at 374.

And, in Allee v. Medrano, 416 U.S. 802, 94S. Ct. 2191,

40 L. Kd. 2d 566 (1974), the plaintiffs alleged the

complained of conduct “was but one part of a single

plan by the defendants ....The numerous incidents of

misconduct on the part of the named Texas Rangers . .

. found beyond peradventure not only a ‘persistent

pattern’ but one which flowed from an intentional,

concerted, and indeed conspiratorial effort to deprive

the organizers of their First Amendment rights and

place them in fear of coming back.” Rizzo, 423 U.S. at

374-75. According to the majority in Rizzo, “[t]he focus

in Hague and Medrano, was ...on... a ‘pervasive

pattern of intimidation’ flowing from a deliberate plan

$Qa

{ppendix A

by the named defendants to crush the nascent labor

organizations.” /d. at 375 (emphasis added). We conclude

Rizzo's explanation of these cases and its reasoning

confirm we properly impose § 1988 liability upon

individual defendants who act with the requisite depree

of culpability to promulgate, create, implement, or

otherwise possess responsibility for the continued

operation of policies that cause the deprivation of

persons’ federally protected rights."

Not much later, the Supreme Court again addressed

§ 1983 liability in Monell v. Dep't of Social Servs., 436

U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). After

conducting an extensive review of the legislative history

of § 1988, the Court overruled “Monroe v. Pape [3865

U.S. 167, 81S. Ct. 473, 5 L. Ed. 2d 492 (1961)] insofar as

it holds that local governments are wholly immune from

suit under § 1983” 7d. at 668, and instead concluded

9. Long before Iqbal, we interpreted Rizzo as imposing an

“affirmative link’ requirement” that meant “that before a

superior may be held [hable under § 1983] for acts of an inferior,

the superior, expressly or otherwise, must have participated or

acquiesced in the constitutional deprivations of which complaint

is made.” Kate v. Kelley, 546 F.2d 334, 337 (1976); see also Buck,

049 F.3d at 1287 (stating that Rizzo found “that supervisory

personnel could be held liable where the plaintiff demonstrate

an ‘affirmative link’ between the constitutional violation and

the defendant’s actions, typically through ‘the adoption of any

plan or policy ... showing authorization or approval.’” (quoting

Rizzo, 423 U.S. at 871))

31a

Appendix A

plaintiffs may sue municipalities and other local

government entities as “persons” under § 19838.

“However, [it upheld] Monroe v. Pape, insofar as it holds

that the doctrine of respondeat superior is not a basis

for rendering municipalities liable under § 1983 for

constitutional torts of their employees.” /d. at 663-64,

n.7. Based in large part upon the language of § 1983

itself, the Court declared “it is when execution of a [local]

government’s policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that

the government as an entity is responsible under §

1983.” Id. at 694. The Court explained that § 1983’s

language:

“[A]ny person who, under color of any law...

. of any State, shall subject, or cause to be

subjected, any person... to the deprivation

of any rights ... secured by the Constitution

.. Shall... be liable to the party injured”...

. plainly imposes liability on a government

that, under color of some official policy,

‘causes’ an employee to violate another’s

constitutional rights. At the same time, that

language cannot be easily read to impose

liability vicariously on governing bodies solely

on the basis of the existence of an employer-

employee relationship with a tortfeasor.

Indeed, the fact that Congress did specifically

provide that A’s tort became B’s liability if B

‘caused’ A to subject another to a tort

suggests that Congress did not intend § 1983

32a

Appendix A

liability to attach where such causation was

absent.

Id. at 691-92. '°

Since Monell, the Supreme Court has “consistently

refused to hold municipalities liable under a theory of

respondeat superior” but nonetheless has imposed

liability upon municipalities when the enforcement of

their policies or customs by their employees causes a

deprivation of a person’s federally protected rights.

Brown, 520 U.S. at 403. Therefore, the Court “require[s]

a plaintiff seeking to impose liability on a municipality

under § 1983 to identify a municipal ‘policy’ or ‘custom’

that caused the plaintiff’s injury.” Id. “That is, a plaintiff

must show that the municipal action was taken with the

requisite degree of culpability and must demonstrate a

direct causal link between the municipal action and the

deprivation of federal rights.” Jd. at 404 (emphasis

10. Although Monell does not explicitly apply its

prohibition on respondeat superior liability to suits against

individual government officials, because its holding relied in

large part on the language of § 1983—”any person who subjects

or causes to be subjected”—many concluded the decision “made

clear that respondeat superior cannot be applied either to

superiors or to local government entities.” Nahmod, supra note

4, at § 3:93; see also Schwartz, supra III.B.1, at § 7.19[C] (“A

combined reading of Rizzo and Monell thus supported the

conclusion that § 1983 supervisory liability cannot be based

upon respondeat superior.”); Jqbal, 129 S. Ct. at 1948 (citing

Monell, 436 U.S. at 691, for the proposition that there exists “no

vicarious liability for a municipal ‘person’ under 42 U.S.C. §

1983").

33a

Appendix A

added). Monell and its progeny clearly stand for the

proposition that the very language of § 1983 provides

for the imposition of liability where there exists an

“affirmative” or “direct causal” link between a municipal

person’s adoption or implementation of a policy and a

deprivation of federally protected rights, and that

imposing liability upon such a basis does not implicate

respondeat superior. Nothing in Iqbal contradicts this

longstanding interpretation of § 1983’s language.

LD,

Oo.

Regardless of the fate of other theories of

supervisory liability in Iqbal’s wake, we conclude the

facts presented on summary judgment taken in the light

most favorable to Plaintiff establish Defendant violated

his federally protected rights, satisfying the first part

of the qualified immunity test. Defendant contends that

at most Plaintiff has demonstrated he failed to act and

that he cannot be held liable under § 1983 for a failure

to act. We disagree with his characterization of his role

in the unconstitutional deprivation of Plaintiff’s liberty

interest. Defendant may not have personally informed

Plaintiff or the individuals who inquired on his behalf

that he could not post the preset bail until he had seen

a judge. And, Defendant may not have actually known

of his subordinates’ enforcement of these policies with

regard to Plaintiffin particular. Nonetheless, Defendant

admits to the existence and operation of the policies of

not allowing felony arrestees to post lawfully set bail

after hours or until they had seen a judge. Defendant

also admits that these policies are the reason Plaintiff

34a

Appendix A

was detained despite the fact a judge had already

approved bail in the amount of $ 5,000 in Plaintiff’s

arrest warrant. Regardless of who first drafted the

policies, Oklahoma law charged Defendant as sheriff with

the responsibilities of running the county jail and

accepting bail from all arrestees not charged with death-

penalty eligible crimes. See 57 Okla. Stat. § 47 (“The

sheriff . . . shall have charge of the county jail of his

county and of all persons by law confined therein, and

such sheriff .. . is hereby required to conform, in all

respects, to the rules and directions promulgated

pursuant to [74 Okla. Stat. § 192] and of the district

judge and communicated to him by the proper

authority.”); 22 Okla. Stat. § 1101(A) (“Except as

otherwise provided by law, bail .. . shall be admitted

upon all arrests in criminal cases where the offense is

not punishable by death and in such cases it may be

taken by and of the persons . . . authorized by law to

arrest, [and] to imprison offenders... .”); Okla. Att’y.

Gen. No. 69-138 (1969) (“In criminal cases except cases

punishable by death . . . a sheriff is required to accept

bail, under the terms of [22 Okla. Stat. § 1101 (1961)],

for those persons jailed at times other than the normal

working hours of the Court, provided proper bail has

been set as provided by law.”); see also Meade, 841 F.2d

at 1528 (“Under Oklahoma law, a sheriff is responsible

for the proper management of a jail in his county and

the conduct of his deputies.”). Defendant evidently does

not dispute this point. When asked at oral argument

“And, in Oklahoma, isn’t the sheriff the final policymaker

for the jail?” Defendant’s counsel answered “Yes.” When

asked “So as the final policymaker [Defendant] was

3Sa

Appendix A

required at least in his official capacity to make sure

that the policies of the jail followed the Constitution?”

Defendant’s counsel responded, “I agree as in his official

capacity he would be the final policymaker as to the jail.”

Thus, as Defendant’s counsel conceded at oral

argument, Oklahoma law made Defendant responsible

for the policies that operated and were enforced by his

subordinates at the jail. And under his watch, as he

admits, the policies which caused Plaintiff’s

constitutional injury continued to operate. Defendant

has not provided any reason to conclude these policies

were binding upon him as sheriff in particular or upon

the jail in general.’ Therefore, the facts, taken in the

11. When asked in a deposition who set the policy of not

releasing felony arrestees until they had been arraigned by a

judge despite their bond having been set, Defendant

responded: “As far as I know, it was set by the district judges. I

think it may have had something to do with the Court Clerk’s

office also, because there is no one—no one there like at

nighttime or weekends, stuff like that to accept bonds. So it has

been there—it was that way when I| got there, and I have been

told it has been there for 20 years or 25 years.” Aplt’s App. at 63.

When asked at oral argument if Defendant knew for a fact that

the district court judges rather than the court clerk set the

policies, Defendant’s counsel responded: “That was his

understanding. I wouldn’t say that he knows for a fact or had

anything beyond just his understanding from when he came

into office, but it was his understanding that it initially started

with the district court and that, again, this all before he came

into office, of course.” Defendant did not provide the district

court or this Court with a copy of these policies or even state

definitively who first authored them. The court clerk did not

(Cont’d)

36a

Appendix A

light most favorable to Plaintiff, show Defendant may

have played more than a passive role in the alleged

constitutional violation—he may have deliberately

enforced or actively maintained the policies in question

at the jail. Plaintiff has thereby presented facts that

establish personal involvement by Defendant in the

alleged constitutional violation sufficient to satisfy §

1983. By Defendant’s own admission, the policies’

enforcement caused the constitutional violation before

us. As a result, the faets show Defendant’s maintaining

these policies at the jail caused Plaintiff to be deprived

of his due process rights.

(Cont'd)

shed any more light in her atfidavit. She only stated that “Logan

County has a local rule preventing individuals charged with a

felony from posting bond until they have gone before a judge

and have been arraigned. To my knowledge, this rule has been

in effect for at least the past 18 years. (See Ex.2, Bondable

Offenses)” and that “it is the policy of the Court Clerk’s office

not to permit the Sheriff’s office to accept bonds after hours on

felony warrants.” Aplt’s App. at 138. She did not provide these

local rules to the court or state who promulgated them. Exhibit

2 is titled “BONDABLE OFFENSES.” The document lists

offenses that are presumably bondable, and then states “ALL

MISDEMEANOR BONDS ARE $ 1000 PER CHARGES.” As

best as we can tell, this is a list of some misdemeanor offenses

and indicates the bond for those offenses is set at $ 1,000. This

document does not say anything about the sheriff being

forbidden to accept bail set by a judge in a warrant from felony

arrestees after hours or until the arrestee has been arraigned.

Furthermore, Defendant’s counsel seems to have essentially

conceded that the court clerk does not have authority over him.

In response to the panel’s statement that the court clerk

“[ejertainly doesn’t have authority to set jail policy” he stated

“No, your honor. Absolutely not. I agree with that. The county

clerk would not have the authority to run the county jail.”

37a

Appendix a

Now that we have concluded Plaintiff has shown facts

that, if proven at trial, suffice to establish Defendant’s

personal involvement caused the misconduct complained

of, we address whether the facts show Defendant acted

with the state of mind required to establish Defendant

committed a constitutional violation. The Court in Iqbal

explained that the factors necessary to establish a § 1983

violation depend upon the constitutional provision at

issue, including the state of mind required to establish

a violation of that provision. Jgbal, 129 S. Ct. at 1949.

Iqbal’s allegations that Ashcroft and Mueller knew and

acquiesced in their subordinates’ unconstitutional

conduct did not allege they themselves purposefully

discriminated on the basis of race, religion, or national

origin—the state of mind required to establish an equal

protection violation. Id. As a result, Iqbal’s claims were

insufficient to impose Bivens liability upon them without

improperly implicating respondeat superior. Id. We

therefore conclude that after Iqbal, Plaintiff can no

longer succeed on a § 1983 claim against Defendant by

showing that as a supervisor he behaved “knowingly or

with ‘deliberate indifference’ that a constitutional

violation would oecur” at the hands of his subordinates,

unless that is the same state of mind required for the

constitutional deprivation he alleges. Serna, 455 F.3d

at 1151 (quoting Green, 108 F.3d at 1302); see also

Sandra T.E. v. Grindle, 599 F.3d 588, 588 (7th Cir. 2010)

(concluding that after Iqbal when a piaintiff claims the

defendant-supervisor violated her constitutional rights

she must allege the defendant-supervisor acted with

38a

Appendix A

whatever state of mind is required to state the

underlying constitutional violation she alleges); compare

Daniels, 474 U.S. at 329-30 (holding “that § 1983...

contains no state-of-mind requirement independent of

that necessary to state a violation of the underlying

constitutional right. ... But in any given § 1983 suit, the

plaintiff must still prove a violation of the underlying

constitutional right; and depending on the right, merely

negligent conduct may not be enough to state a claim”

(internal citations omitted)); Brown, 520 U.S. at 405

(“Section 1983 itself ‘contains no state-of-mind

requirement independent of that necessary to state a

violation’ of the underlying federal right. In any § 1983

suit, however, the plaintiff must establish the state of

mind required to prove the underlying violation.”

(quoting Daniels, 474 U.S. at 330)). But given Plaintiff

alleges a substantive due process violation, it appears

Plaintiff must establish that Defendant acted with

deliberate indifference to Plaintiff’s due process right

to post preset bail.'* See Daniels, 474 U.S. at 330-31

12. Plaintiff does not specify that he alleges a “substantive”

due process claim. But we construe his due process claim as a

substantive one because, as we have explained many times,

“[w]hen government action deprives a person of life, liberty, or

mroperty without fair procedures, it violates procedural due

process.” U.S. v. Deters, 143 F.3d 577, 582 (10th Cir. 1998).

Plaintiff, however, does not complain about a lack of procedure

and, “thus, [Jhe does not implicate the procedural component

of the Due Process Clause.” Id. But “[t]he Clause ‘cover|[s] a

substantive sphere as well, barring certain government actions

regardless of the fairness of the procedures used to implement

them.” Seegmiller v. Laverkin City, 528 F.3d 762, 766-67 (10th

Cir. 2008)

39a

Appendix A

(concluding something more than simple negligence is

required to establish an official deprived an individual

of life, liberty, or property under the Fourteenth

Amendment); Green v. Post, 574 F.3d 1294, 1301 (10th

Cir. 2009) (explaining that when a plaintiff alleges a

substantive due process violation and “when actual

deliberation is practical, we will employ a deliberate

indifference standard” (internal quotations and

citations omitted)); Webber v. Mefford, 43 F:3d 1340, 1342

(10th Cir. 1994) (“[A] government official violates an

individual’s Fourteenth Amendment rights by injuring

his or her life, liberty, or property with deliberate or

reckless intent.”). However, we need not say anything

further as to what state of mind Plaintiff’s substantive

due process claim demands because neither party

challenges the district court’s conclusion that Plaintiff

must show Defendant acted with deliberate indifference

(albeit likely based upon our pre-Iqbal explanation of §

1983 supervisory liability given its citation to Serna, 455

F.3d at 1151-52). Therefore, we should not consider the

issue. See Hernandez v. Starbuck, 69 F.3d 1089, 1093

(10th Cir. 1995) (“A court of appeals is not required to

manufacture an appellant’s argument on appeal when

it has failed in its burden to draw our attention to the

error below. In the event of such a failure, the court will

ordinarily consider the appellant’s point waived.”

(internal quotations and citations omitted)). So, let us

be clear: We do not pass judgment at this time on the

state of mind required to establish a substantive due

process violation based upon preventing an arreste2

from posting preset bail. We assume, without deciding,

deliberate indifference constitutes the required state

of mind.

40a

Appendix A

In an appeal of a district court’s denial of qualified

immunity at the summary judgment stage, we may not

review the district court’s conclusion that the facts

alleged support a p?~ticular factual inference. Zia Trust

Co., 597 F.3d at 1152. But we may decide whether the

facts “presented on summary judgment in the light most

favorable to the plaintiff... amount to a violation of a

clearly established right.” Walker, 451 F.3d at 1155. In

this case, conducting that analysis requires us to

determine whether the facts support the view that

Defendant acted with deliberate indifference to

Plaintiff’s due process rights, 7.e., support the view that

Defendant knew his actions created a substantial risk

of constitutional injury. See Serna, 455 F.3d at 1154-55

(explaining that the plaintiff “must point to evidence

that would establish [the defendant] knew he was

creating a situation that created a substantial risk of

constitutional harm” to establish the defendant acted

with deliberate indifference); Campbell, 586 F.3d at 840

(determining that a plaintiff may show the defendant

acted with the deliberate indifference required to

establish a Fourteenth Amendment due process

violation by providing evidence the defendant “had

subjective knowledge of a risk of harm and disregarded

that risk by actions beyond mere negligence”). Plaintiff

has shown facts from which a reasonable jury could infer

Defendant knowingly created a substantial risk of

constitutional injury to people like Plaintiff. Oklahoma

law made Defendant, rather than the clerk or district

judges, responsible for controlling the jail and accepting

bail from arrestees like Plaintiff. Defendant admits that

while he served as the sheriff he maintained policies that

Ala

Appendix A

prevented felony arrestees whose bail had been set from

posting bail after hours and before arraignment. Plaintiff

had a liberty interest in being released once his bail had

been set. Defendant does not suggest any “legitimate

goal” behind preventing felony arrestees whose bail had

been set from posting bail. We therefore agree with the

district court that Plaintiff has shown facts that taken

in the light most favorable to him establish that

Defendant acted with deliberate indifference and

thereby violated his Fourteenth Amendment due

process rights.

IV.

We now address whether Plaintiff has established

Defendant violated a clearly established right. “The law

is clearly established when a Supreme Court or Tenth

Circuit decision is on point, or if the clearly established

weight of authority from other courts shows that the

right must be as plaintiff maintains.” Harman v. Pollock,

586 F.3d 1254, 1261 (10th Cir. 2009) (internal quotations

omitted). We have explained that “clearly established”

means “(t]he contours of the right must be sufficiently

clear that a reasonable official would understand that

what he is doing violates that right. This is not to say

that an official action is protected by qualified immunity

unless the very action in question has previously been

held unlawful, but it is to say that in the light of pre-

existing law the unlawfulness must be apparent.’” Id.

(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107

S. Ct. 3034, 97 L. Ed. 2d 523 (1987)). That Plaintiff had

a liberty interest based upon federal law in being freed

42a

Appendix A

from detention once bail had been set and that his

continued detention despite that liberty interest must

be reasonably related to a legitimate goal to pass

constitutional muster have been clearly established in

our circuit (and others) since at least 1997 when we

published Gaylor. See supra III.A. Plaintiff’s right to

be free from unjustified detention after his bail was set

was clearly established such that a reasonable official in

Defendant’s position in April 2007 would have

understood that his deliberately indifferent

maintenance of the policies that prevented arrestees

from posting preset bail for no legitimate reason violated

the Constitution.

Nonetheless, Defendant contends that Gaylor does

not clearly establish that he could be liable in his

individual capacity for the jail’s policies which prevented

arrestees whose bail had been set from posting bail.

First, the “clearly established” prong of the qualified

immunity inquiry asks whether the “‘[t]he contours of

the right’” the plaintiff claims the defendant violated

are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.”

Harman, 586 F.3d at 1261 (quoting Anderson, 483 U.S.

at 640) (emphasis added). Plaintiff has demonstrated at

this stage in the litigation that the contours of the right

he claims Defendant violated were sufficiently clear that

a reasonable official in Defendant’s position would know

his maintenance of policies that prevent arrestees with

preset bail from posting bail for no legitimate reason

violates the Fourteenth Amendment right to due

process. Second, while Gaylor admittedly involved

43a

Appendix A

municipal liability, other cases of ours and the great

weight of authority from other circuits clearly

established by 2007 that officials may be held individually

liable for policies they promulgate, implement, or

maintain that deprive persons of their federally

protected rights. See supra IIJ1I.B.1. Thus, we think

Plaintiff has shown facts that, if proven at trial, establish

Defendant violated his clearly established rights.

Lastly, we note Defendant has repeatedly argued

throughout this litigation that he relied on the court

clerk’s or district court judges’ policies and that these

policies caused Plaintiff’s continued detention, rather

than any action on his part. But he has never claimed

prior to oral argument that he is entitled to qualified

immunity because his conduct was nonetheless

objectively reasonable in light of his reasonable reliance

on policies set by the court clerk or district judges."

13. Generally speaking, “a reasonably competent public

official should know the law governing his conduct.” Harlow,

457 U.S. at 819. Once a plaintiff demonstrates the right at issue

was clearly established, the defendant then bears the “burden

to prove that her conduct was nonetheless objectively

reasonable.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251

(10th Cir. 2003) (citing Cannon v. City & County of Denver, 998

h.2d 867, 874 (10th Cir. 1993)) (emphasis added). Rarely, a

defendant can demonstrate her conduct was nonetheless

objectively reasonable if she demonstrates extraordinary

circumstances that prove she “neither knew or should have

known of the relevant legal standard.” /d. at 1247, 1251. “‘The

circumstances must be such that the defendant was so

(Cont'd)

Appendix A

While such an argument may be an obvious one yviven

Defendant’s repeated assertions that he relied on these

policies, he has simply failed to make it or even cite any

supporting precedent. For this reason, the district court

never considered whether Defendant’s reliance “on a

state statute, reyulation, or official policy” constituted

extraordinary circumstances sufficient to warrant

granting qualified immunity. /toska, 328 F.8d at 1251.

Of course, when pointedly asked at oral argument

whether it was objectively reasonable for Defendant to

rely on these policies or whether our case law supported

such a claim, Defendant’s counsel answered the

questions. But, again, Defendant’s counsel did not raise

the argument. In addition, in his responses to those

questions he generally couched the inquiry as a matter

of official versus individual liability, 7.e., whether a former

sheriff can be held individually liable for reliance on

that policy. '* Moreover, “issues may not be raised for

(Cont'd)

“prevented” from knowing that his actions were

unconstitutional that he should not be imputed with knowledye

of a clearly established right.’” /d. at 1251 (quoting Cannon,

YOR F.2d at $74). A defendant’s reliance “on a state statute,

regulation, or official policy” may constitute just such

extraordinary circumstances. Id.

14. Panel: “Let me ask you a question about Roska. Roskia

also says that officials are generally held to have constructive

knowledye of established law. Here we have, do you concede we

have aclearly established unconstitutional policy under Gaylor?

Defendant’s Counsel: “I agree that Gaylor stands for the

proposition that where you have an official capacity claim that

”

the policy discussed in Gaylor

(CCont’d)

45a

Appendix A

the first time at oral argument.” United States v.

Abdenbi, 361 F.3d 1282, 1290 (10th Cir. 2004). And, we

“should neither raise sua sponte an argument not

advanced by a party either before the district court or

on appeal, nor then advocate a particular position and

resolve the appeal based on that advocacy.” Id.; see also

Perry v. Woodward, 199 F:3d 1126, 1141, n.13 (explaining

that although we may affirm a district court’s decision

for any reason supported by the record, because the

defendants had not adequately developed the alternative

argument we refused to address it). “Given

[Defendant’s] failure to properly raise, brief, and argue”

that he is nonetheless entitled to qualified immunity

because he reasonably relied on the policies at issue,

which he bears the burden of proving, we will not

consider the argument. Id.; see also Roska, 328 F.3d at

1251 (noting that once a plaintiff demonstrates the right

at issue was clearly established, the defendant then

bears the “burden to prove that her conduct was

nonetheless objectively reasonable.”).

Panel: “So our question is whether . . . it’s reasonable to say

that a court clerk’s policy can undermine a clearly established

constitutional right . . . of which the sheriff has constructive

knowledge according to Cannon?”

Defendant’s Counsel: “I believe the question would be can

the former sheriff be held individually liable for reliance on

that policy.”

46a

Appendix A

The judgment of the district court is hereby

AFFIRMED.

TYMKOVICH, J., concurring.

I fully agree with the majority that the complaint

sufficiently alleges former Sheriff Richardson violated

clearly established law when he implemented the county

court’s unconstitutional bail policy.’ [ write separately

to further note the lack of clarity in the law of

supervisory liability, and my view of how this may have

been affected by the Supreme Court’s recent decision

in Ashcroft v. Iqbal, 129 8. Ct. 1937, 173 L. Ed. 2d 868

(2009).

Federal law provides that “[e]very person who,

under color of any statute, ordinance, regulation,

1. I do not intend to address situations in which the right

at issue was not clearly established. Nor do I address the debate

over whether the theory of supervisory liability advanced must

itself be clearly established at the time of the violation. See

Murrell v. School District, 186 F.3d 1238, 1251 (10th Cir. 1999);

see also Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002) (plaintiff

must show that “the supervisory liability doctrine under which

[she] wishes to hold [the supervisor] liable” is clearly

established). Rather, I emphasize that the question of

supervisory liability is more coherently viewed through the lens

of causation.

47a

Appendix A

custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured.” 42 U.S.C.

§ 1983 (emphasis added). The phrase “causes to be

subjected” suggests that liability exists for officials who

did not directly violate constitutional rights, but, as the

majority illustrates, the standard for demonstrating that

a supervisory official has caused a violation is far from

clear. A short review of pertinent case law illustrates

the lack of clarity.

As an initial matter, the Supreme Court has long

held that municipalities are not liable for the

constitutional torts of their employees merely on a

respondeat superior basis. Monell v. Dep't of Soc. Servs.,

436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

Instead, municipalities are only liable for constitutional

violations that they have directly caused. To prove that

a municipality caused a violation of her constitutional

rights, a plaintiff must show that an injury was caused

by an “official municipal policy of some nature.” /d.

An official policy need not be explicitly codified—in

some contexts, decisions of high-ranking officials, even

with regard to isolated events, are rightly viewed as

official policy and therefore subject the municipality to

liability. See Pembaur v. Cincinnati, 475 U.S. 469, 106

48a

Appendix A

S. Ct. 1292, 89 L. Ed. 2d 452 (1986). This concept of

“official policy” is even flexible enough to include

situations in which the potential for constitutional

violations was so obvious that a municipality can be held

liable for failing to adequately train its employees. See

Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L.

Ed. 2d 412 (1989). But it is essential to recall that in all

these situations, liability is imposed “only where the

municipality ztself causes the constitutional violation at

issue.” Jd. at 385 (citing Monell, 436 U.S. at 694-95)

(emphasis in original). These examples—official policy,

decisions of high-ranking officials, and failure to

adequately train employees—are not rightfully

regarded as theories of liability but should instead be

viewed as theories of causation.

As to supervisory liability, the added level of removal

between the violation and the supervisor makes

questions of causation even more difficult. The Supreme

Court has yet to speak with much clarity on the theories

of causation that could demonstrate a supervisory

official’s liability for the constitutional violations carried

out by a subordinate. Whether a supervisor has violated

the plaintiff’s rights is dependent on whether the

subordinate violated the Constitution—the supervisor

cannot be liable if there ‘vas no violation. See City of

Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571,

89 L. Ed. 2d 806 (1986) (“if the [employee] inflicted no

constitutional injury on respondent, it is inconceivable

that [the city] could be liable to respondent.”). And in

some cases, the determination of whether a violation

49a

Appendix A

occurred turns on the subordinate’s state of mind.* What

remains unclear is the state of mind that the supervisor

must possess to be liable for causing such a violation.

As the majority points out, the Supreme Court

recently muddied further these already cloudy waters.

In Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009), the Court reiterated the long-standing rule from

Monell that “[glovernment officials may not be heid

2. The elements necessary to establish a § 1983 violation

“will vary with the constitutional provision at issue.” Jqbal, 129

S. Ct. at 1948. This variation is required because § 1983 “is not

itself a source of substantive rights, but a method for vindicating

federal rights elsewaere conferred by those parts of the United

States Constitution and federal statutes that it describes.”

Bakerv. McCollan, 443 U.S. 137, 145 n.3, 99S. Ct. 2689, 61 L. Ed.

2d 433 (1979). For exampie, certain violations of the Eighth

Amendment will require proof of deliberate indifference, see

Estelle v. Gamble, 429 U.S. 97, 104, 97S. Ct. 285, 50 L. Ed. 2d 251

(1976), whereas the Equal Protection clause is only violated

when the official had a discriminatory purpose, see Washington

v. Davis, 426 U.S. 229, 240, 96S. Ct. 2040, 48 L. Ed. 2d 597 (1976).

But procedural due process violations focus on the sufficiency

of the procedural protections afforded the plaintiff, not the state

of mind of the officials who establish or apply the policies. See,

e.g., Wilkinson v. Austin, 545 U.S. 209, 224-25, 125 S. Ct. 2384,

162 L. Ed. 2d 174 (2005). The state of mind required to prove a

constitutional violation 1s distinct from the state of mind that

may be required to show that a municipality caused a

constitutional violation. See Canton, 489 US. at 388 n.8 (“[Tlhe

proper standard for determining when a municipality will be

liable under § 1983 for constitutional wrongs does not turn on

any underlying culpability test that determines when such

wrongs have occurred.”).

50a

Appendix A

liable for the unconstitutional conduct of their

subordinates under a theory of respondea’ superior.”

129 S. Ct. at 1948. In doing so, the Court explained that

in “a § 1983 suit or a Bivens action—where masters do

not answer for the torts of their servants—the term

‘supervisory liability’ is a misnomer. Absent vicarious

liability, each Government official, his or her title

notwithstanding, is only liable for his or her own

misconduct.” Jd. at 1949.

Iqbal involved a claim of invidious discrimination, in

which a plaintiff must demonstrate that an official

undertook “a course of action ‘because of,’ not merely

‘in spite of,’ [the action’s] adverse effects upon an

identifiable group.” Jd. In that context—where the

intent to discriminate is an element of the constitutional

violation—the Supreme Court rejected the proposition

that supervisors can be held liable for mere “knowledge

and acquiescence in their subordinates’ use of

discriminatory criteria to make classification decisions.”

/d. at 1949. To prevail against these supervisory officials,

the plaintiff would have to demonstrate that they

“purposefully adopted a policy of [discriminating against

plaintiffs] because of their race, religion, or national

origin.” /d. at 1952. That is, the plaintiffs must show

that the supervisory officials themselves acted with an

impermissible motive, not merely that they knew of

their subordinates’ impermissible motives and did not

put a stop to their actions. Since the plaintiffs in Jgbal

failed to sufficiently allege discriminatory intent on the

part of the supervisors, their claims against the

supervisory Officials failed.

Sla

Appendix A

The dissenters in J/gbal stated, perhaps

hyperbolically, that the majority’s view “eliminat[ed]. .

. Supervisory liability entirely.” Jd. at 1957 (Souter, J.,

dissenting).*

[qba. unfortunately did not provide a unified theory

for th variety of supervisory liability cases we face. We

do know supervisory liability under § 1983 is still only

appropriate where the plaintiff can prove that the

supervisor caused the violation. And ina case like /qgbal,

where the constitutional violation requires

discriminatory intent, a supervisor does not cause a

violation unless he or she actually intended for his or

her subordinates to invidiously discriminate. Mere

knowledge and acquiescence of, or even “deliberate

indifference” towards, the discriminatory actions of

employees now appears insufficient to prove causation,

and thereby prove liability.

3. Our recent cases have noted this potentially significant

development, but have not determined the scope of its impact

on our case law. In Lewis v. Tripp, 604 F.3d 1221 (10th Cir. 2010),

we noted the “significant debate about the continuing vitality

and score of supervisory liability, not only in Bivens actions,

but also in § 1983 suits.” Jd. at 1227 n.3; see also Mink v. Knox,

No. 08-1250, 613 F.3d 995, 2010 U.S. App. LEXIS 14684, 2010

WL 2802729 (10th Cir. July 19, 2010); Sheldon Nahmod,

Constitutional Torts, Over-Deterrence and Supervisory

Liability after Iqbal, 14 Lewis & Clark L. Rev. 279, 294-98 (2010)

(discussing some alternatives). In both Lewis and Mink we

avoided delving further into the morass given allegations that

the supervisor in each case had directly participated in the

constitutional violations at issue.

52a

Appendix A

Although the Supreme Court did not explicitly state

it in this manner, the discriminatory intent of

subordinates actually breaks the chain of causation if

the supervisor did not also intend to discriminate. This

analysis fits well with the Court’s precedent noting that

“claims brought pursuant to § 1983 sound in tort,” and

counseling therefore that § 1983 should be interpreted

“in light of the ‘background of tort liability.” Monterey

v. Del Monte Dunes, 526 U.S. 687, 709, 119 S. Ct. 1624,

143 L. Ed. 2d 882 (1999) (quoting Monroe v. Pape, 365

U.S. 167, 187, 81S. Ct. 478, 5 L. Ed. 2d 492 (1961)).

But /qgbal does not address constitutional violations

that are based on a state of mind other than specific

intent—for instance, a procedural due process violation,

or an Kighth Amendment violation based on an official’s

deliberate indifference. A supervisor is liable for these

actions only when the supervisor can be fairly said to

have caused the violation, but determining when this is

the case can be tricky, to say the least.

At the most basic level of formulation, our law

requires an “affirmative link” between the constitutional

violation and “either the supervisor’s personal

participation, his exercise of control or direction, or his

failure to supervise.” Meade v. Grubbs, 841 F.2d 1512,

1527 (10th Cir. 1988) (quoting Specht v. Jensen, 8382 F.2d

1516, 1524 (10th Cir. 1987)) Gnternal quotation marks

omitted). Ordinarily, “there must be cause in fact

between the conduct complained of and the

constitutional deprivation.” Snell v. Tunnell, 920 F.2d

673, 700 (10th Cir. 1990). Applying this “cause in fact”

$3a

Appendix A

reasoning to supervisory defendants, we concluded that

the “requisite causal connection is satisfied if the

defendant set in motion a series of events that the

defendant knew or reasonably should have known would

cause others to deprive the plaintiff of her constitutional

rights.” Id.; see also Buck v. City of Albuquerque, 549

F.3d 1269, 1279-80 (10th Cir. 2008).

At odds with the “set in motion” formulation, we also

caution it is not enough to “merely show[] that a

supervisor ‘should have known’ that a subordinate was

violating someone’s constitutional rights.” Woodward v.

City of Worland, 977 F.2d 1392, 1399 (10th Cir. 1992).

Instead, only a supervisor’s actual knowledge of his

subordinates’ behavior will demonstrate the requisite

“deliberate, intentional act by the supervisor to violate

constitutional rights.” Jd. Negligence—even gross

negligence—is insufficient to prove that the supervisor

caused a violation.

The exact method of demonstrating a causal link

depends on the actions of the supervisor in relation to

the subordinate that led to the violation. Supervisors

sometimes directly order their subordinates to take an

action, either in a specific case, or by establishing some

sort of policy. They may also learn of conduct taken by

their subordinates and acquiesce in it after the fact or

simply ignore it. Some supervisors may never learn of

the unconstitutional actions of their subordinates, not

because their subordinates were successful in hiding

their behavior, but because the supervisor was “willfully

blind” or deliberately indifferent. And supervisors may

54a

Appendix A

have a responsibility, as do municipalities, to ensure that

their subordinates are properly trained—failure to

carry out this duty may in some cases result in a

violation.

Just as there are various ways in which a supervisor

can be said to have caused a violation, as outlined above,

there are different levels of fault associated with these

actions. We consider some of these actions to be blame-

worthy enough that the supervisor should be liable. Our

cases have suggested that a supervisor could be liable

if he or she “established or utilized an unconstitutional

policy or custom.” Meade, 841 F.2d at 1528. We have also

stated, perhaps contradictorily, that supervisory

liability under § 1983 “must be predicated on the

supervisor’s deliberate indifference, rather than mere

negligence.” Green v. Branson, 108 F.3d 1296, 1302 (10th

Cir. 1997). We have even suggested that, in some cases,

supervisors could be liable for violations that resulted

from recklessness—”a conscious acceptance of a known,

serious risk”—because this “requires proof that the

defendant focused upon the risk of unconstitutional

conduct and deliberately assumed or acquiesced in such

risk.” Woodward, 977 F.2d at 1399 n.11 (emphasis in

original).

In sum, our precedent has established, with varying

levels of clarity, that a supervisor is only liable for

violations that he caused, and that causation requires

at least some degree of fault on the supervisor’s part.

Exactly how this causation can be shown varies

depending on the type of violation and the facts of the

CaSe€.

SSa

Appendix A

I].

Iqbal holds that at least for some constitutional

violations requiring specific intent, a supervisor cannot

be liable for a subordinates’ violations unless the

supervisor possessed that intent as well. Thus, in cases

where an element of the constitutional violation by the

subordinate is “discriminatory intent,” such as the racial

discrimination claimed in /qbal, the supervisor must

share the state of mind. But in situations where the

constitutional violation does not require specific intent,

the supervisor “is only liable for his or her own

misconduct.” /qgbal, 129 S. Ct. at 1949.

Following this logic, several theories of liability are

possible. First, a supervisor may directly order a

subordinate to violate the plaintiff’s rights—for

example, by deliberately creating a policy that denies

the plaintiff due process, or utilizing an already-existing

policy that has the same effect. See Meade, 841 F.2d at

1528; Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.

2003) (supervisory liability can be based on “creation of

a policy or custom that sanctioned conduct amounting

to a constitutional violation, or allowing such a policy or

custom to continue”); Cottone v. Jenne, 326 F.3d 1352,

1360 (11th Cir. 2003) (supervisory liability “when a

supervisor’s custom or policy results in deliberate

indifference to constitutional rights”) (internal

punctuation omitted). Where the actions of the

subordinates directly flow from the participation or

conduct of the supervisor, liability may be appropriate.

The supervisor deliberately caused the violation.

56a

Appendix A

Next, some cases say a supervisor may cause

violations when he or she has actual knowledge of past

constitutional violations being carried out by a

subordinate, and does nothing to stop future

occurrences. See Hernandez, 341 F.8d at 145

(supervisory liability can result from “failure to act on

information indicating that unconstitutional acts were

occurring’); Chavez v. Ill. State Police, 251 F.3d 612, 651

(7th Cir. 2001) (liability is appropriate for supervisors

who “know about the conduct and facilitate it, approve

it, condone it, or turn a blind eye for fear of what they

might see”); Hartley v. Parnell, 193 F.3d 1263, 1269 (11th

Cir. 1999) (widespread abuse that is “obvious, flagrant,

rampant and of continued duration” can lead to

supervisory liability if the supervisor does not act to

correct these behaviors); but see Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999) (even if supervisors know

of unconstitutional behavior, “liability under § 1983 must

be based on active unconstitutional behavior and cannot

be based upon a mere failure to act”) (internal quotation

marks omitted).

I inally, a series of cases requires a standard of

deliberate indifference. Those types of cases include the

failure to train, the failure to supervise, and potentially

other supervisory shortcomings. See, e.g., Carr v. Castle,

337 F.8d 1221, 1228 (10th Cir. 2008) (analyzing a failure

to train theory of liability in the context of an excessive

force claim); Hernandez, 341 F.3d at 145 (supervisory

liability can be based on “grossly negligent supervision

of subordinates who committed a violation”); Brown v.

Muhlenberg Twp., 269 F.8d 205, 216 (38d Cir. 2001)

S7a

Appendix A

(supervisor can be liable if he was aware of an

unreasonable risk of injury, a specifie supervisory

practice could have averted this injury, the supervisor

was indifferent to that risk, and the injury resulted from

the failure to employ the supervisory practice); Smith

v. Brenoettsy, 158 F.3d 908, 911-12 (5th Cir. 1998)

(supervisory liability is appropriate if the supervisor

exercised deliberate indifference in failing to supervise

or train, and the injury resulted from this failure); Otey

v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997) (a

supervisor can be held liable “if his failure to train or

supervise the offending actor caused the deprivation”).

In those cases, we may find that a supervisor has

somehow caused the violation to occur by an egregious

failure to act. See, ¢.g., Canton, 489 U.S. at 390 n.10

(hypothetically, equipping officers with firearms but

neglecting to train them on their appropriate use could

result in liability); Board of Cnty. Comm'rs v. Brown,

520 U.S. 397, 407-08, 117 S. Ct. 13882, 1387 L. Ed. 2d 626

(1997) (“[T ]he existence of a pattern of tortious conduct

by inadequately trained employees may tend to show

that the lack of proper training ... is the ‘moving force’

behind the plaintiff’s injury.”) (citing Canton, 489 U.S.

at 390-91).

In sum, our decisions hold that supervisors are

liable for constitutional violations they cause. The exact

contours of causation—especially regarding an official’s

state of mind sufficient for liability—are uncertain in

light of /qbal. But for purposes of this case, Dodds

alleges the sheriff deliberately implemented an

unconstitutional bail policy that violated his clearly

App nadix |

established rights as a pre-trial detainee and thereby

caused him injury. As the majority ably demonstrates,

his allegations are enough to survive summary

judgment

59a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

DATED AUGUST 3, 2009

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

Thomas Carl Dodds, Jr.,

Plaintiff,

Logan County Sheriff’s Department, et al.,

Defendants.

Case No. CIV-08-333-R

ORDER

Before the Court is the motion of Defendant Randy

Richardson, former Sheriff of Logan County, in his

individual capacity, for summary judgment on Plaintiff’s

Complaint. Based on what he contends are undisputed

facts, Defendant asserts that he cannot be liable on

Plaintiff’s § 1983 claims for false imprisonment and or

denial of bail, in violation of Plaintiff’s Fourth and

Fourteenth Amendment rights, because he did not

participate in Plaintiff’s arrest, book-in, imprisonment,

prosecution or denial of bail; a policy of the Logan

County Court Clerk’s office prohibited the Sheriff’s

office from accepting bond after hours on felony

60a

Appendix B

warrants and no action of Richardson caused Plaintiff’s

detention; and Defendant is entitled to either absolute

or qualified immunity because Plaintiff was arrested and

placed in jail pursuant to valid court orders, Plaintiff’s

constitutional rights were not even violated, and the

actions of the Sheriff and his deputied were objectively

reasonable.

Plaintiff previously stipulated to the dismissal of his

claim for wrongful arrest and concedes that any claim

for wrongful prosecution does not lie against Defendant

Sheriff. Thus, the Court addresses only Defendant's

arguments directed to Plaintiff’s claims for false

imprisonment and/or denial of bail. Plaintiff in response

essentially argues that the Sheriff’s office’s failure to

honor the pre-set bond in the amount of the Felony

Warrant resulted in a denial of bail and in Plaintiff's

wrongful imprisonment, citing Gaylor v. Does, 105 F.3d

572 (10th Cir. 1997).

Defendant Richardson has submitted evidence that

there was a policy in Logan County that arrestees on

felony warrants were not to be released until they had

been arraigned by a judge and that the policy was set

by either the district judges or the Court Clerk’s office.

Deposition of Randy Richardson (Exhibit “1” to

Defendant’s motion) at p. 79. The elected Logan County

Court Clerk, ReJeania Zmek, attests that “Logan

County has a local rule preventing individuals charged

with a felony from posting bond until they have gone

before a judge and been arraigned,” although she has

not attached a copy of the local rule nor does she state

6la

Appendix B

who promulgated it. Affidavit of ReJeania Zmek (Exhibit

“6” to the Motion for Summary Judgment of Defendants

Duke and Lanman) at #13. The Court Clerk also attests

that “[i]t is the pony of the Court Clerk’s office not to

permit the Sheriff’s office to accept bonds after hours

on felony warrants.” Jd. at {1 7. Thus, it is Defendant

Richardson’s position that it was this policy and no action

taken by him that caused any deprivation of Plaintiff’s

liberty and prevented him from posting bond.

Plaintiff asserts, however, that pursuant to state

statute, specifically Okla. Stat. tit. 57 § 47, the sheriff is

responsible for his or her county jail and, pursuant to

Okla. Stat. tit. 22, § 1191(A), the sheriff had the duty to

allow an arrestee such as Plaintiff to post bond

(“bail...may be taken by and of the persons or courts

authorized by law to arrest, to imprison offenders....,’

which the Oklahoma Attorney General has interpreted

to require a sheriff to accept bail. Atty. Gen. Op. No. 69-

138 (1969)(“a Sheriff is required to accept bail, under

the terms of 22 O.S. 1961. Section 1101, for those persons

jailed at times other than the normal working hours of

the Court, provided proper bail has been set as provided

by law.”)(italics in original). Plaintiff asserts that the

Logan County District Court Clerk had no authority to

create or maintain its policy and that there is no

statutory authority in Oklahoma that allows a District

Court Clerk to dictate bail policy to a sheriff or to

require that all felony arrestees appear before a judge

before posting bond. Moreover, he states that once he

was arrested on a Felony War rant with a pre-set bond,

as was the undisputed case herein, Plaintiff had a liber \

62a

Appendix B

interest in being freed of detention, citing Gaylor v.

Does, 105 F:'3d at 576. Plaintiff argues that in acquiescing

to the policy of the Logan County Court Clerk,

Defendant Richardson acquiesced in a policy beyond the

authority of the Court Clerk to make and in effect

allowed other entities to run the jail, when he knew or

should have known that it was his duty to control the

jail and to accept bail (and insure that his deputies

accepted bail) from criminal defendants who were

arrested on warrants that provided for a pre-set bond.

By accepting or acquiescing in a policy set by the

Logan County Court Clerk or district judges

purportedly prohibiting individuals who have been

arrested from posting bond until they have appeared

before a judge and been arraigned and or prohibiting

the sheriff’s office from accepting bond, Defendant

Richardson knew or should have known that Logan

County deputies and jailers would violate the

constitutional rights of arrestees like Plaintiff whose bail

had been pre-set in his arrest warrant by refusing to

allow them to post bail in the amount set or aecept bail,

because, under Oklahoma law, a sheriff is required to

accept bail which has already been set for persons jailed

at times other than the normal working hours, and

individuals have a liberty interest in being freed of

detention once the amount of their bail is set. See Gaylor

v. Does, 105 F.8d 572, 576 (10th Cir. 1997). It may

reasonably be inferred that Defendant Richardson, who

was the supervisor of the deputies and jailers for Logan

County, exhibited deliberate indifference to the due

process rights of arrestees whose bail had been pre-set

63a

Appendix B

to be free of detention by acquiescing in the Logan

County policy and that his acquiescence caused or

contributed in causing the deprivation of Plaintiff’s due

process rights by another or others. Accordingly,

Defendant Richardson has failed to show that he cannot

be liable for participating or acquiescing in the

deprivation of Plaintiff’s Fourteenth Amendment rights.

See e.g. Serna v. Colorado Department of Corrections,

455 F.3d 1146, 1151-82 (10th Cir. 2006).

Defendant argues that he is entitled to quasi-judicial

absolute immunity from damages because Plaintiff was

placed in jail pursuant to a facially valid warrant and he

and/or his deputies were merely executing a facially valid

court order. Defendant’s argument ignores the fact that

the very facially valid warrant he asserts he and/or his

deputies were acting pursuant to in jailing the Plaintiff

also on its face validly pre-set bond in the amount of

$5,000 and further ignores Defendant’s duty under state

law to accept bond. Accordingly, Defendant is not

entitled to absolute quasi-judicial immunity.

The constitutional fherty interest in being freed of

pretrial detention once an arrestee’s bond has been set

and paid has been clearly established since 1997. See

Gaylor v. Does, 105 F.3d 572 (10th Cir. 1997). Plaintiff

has presented evidence that his bond was pre-set at

$5,000 in the Felony Warrant and that the sheriff

orsheriff’s deputies refused to accept payment of the

bond on the day of Plaintiff’s arrest. Thus, Plaintiff has

presented evidence that his Fourteenth Amendment

constitutional rights were violated. The Fourteenth

64a

Appendix B

Amendment right to freedom from pretrial detention

once bail is set was sufficiently clear that reasonable

officials would understand that refusing payment of a

pre-set bond and allowing release would violate that

right. Accordingly, Defendant Randy Richardson is not

entitled to qualified immunity.

In accordance with the forgoing, Defendant Randy

Richardson’s motion for summary judgment is

DENIED.

IT ISSO ORDERED this 3rd day of August, 2009

David L. Russell

United States District Judge

65a

APPENDIX C — ORDER OF THE UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED SEPTEMBER 2, 2010

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 09-6157

THOMAS CARL DODDS, JR.

RANDY RICHARDSON, Sheriff, individually

LOGAN COUNTY SHERIFF’S DEPARTMENT

4 ?

CU al..

ORDER

Before TYMKOVICH, SEYMOUR, and BALDOCK,

Cireuit Judges.

662

Appendix (

Appellant’s petition for rehearing is denied.

The Petition for rehearing er banc was transmitted

to all of the judges of the court who are in regular active

service. As no member of the panel and no judge in

regular active service on the court requested that the

court be polled, that petition is also denied.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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