### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 1678

S EYON R. H AYWOOD

, Plaintiff

‐ Appellant

,

v.

J ODY H ATHAWAY

, Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:09

‐ cv

‐ 00807

‐ MJR

‐ SCW

— Michael J. Reagan

, Chief Judge

.

____________________

A RGUED O CTOBER 30, 2013

— D ECIDED N OVEMBER 29, 2016

____________________

Before E ASTERBROOK

, R IPPLE

, and W ILLIAMS

, Circuit Judges

.

P ER C URIAM

. Seyon Haywood, formerly an inmate at Illi

‐

nois’s Shawnee Correctional Center, accused his auto mechan

‐

ics teacher of attacking him. Guards charged him with mak

‐ ing false statements. A disciplinary panel found him guilty

and ordered him transferred to segregation for two months;

the panel also revoked one month of good

‐ time credit. After2 No. 12

‐ 1678

these events he was transferred to a different prison, where he

remains in custody.

Haywood contends in this proceeding under 42 U.S.C.

§1983 that these penalties violate his right to speech, protected

by the Constitution’s First Amendment (applied to states by

the Fourteenth). He also alleges that the conditions of his con

‐

finement in segregation were cruel and unusual, violating the

Eighth Amendment (again applied via the Fourteenth). The

district court dismissed the first claim on the pleadings and

granted summary judgment to defendants on the second. The

only defendant against whom Haywood still seeks damages

is Jody Hathaway, Shawnee’s Warden during Haywood’s time

there.

The district court dismissed the First Amendment claim

because the disciplinary panel’s decision, which affected the

duration of Haywood’s confinement, had not been set aside

on collateral review or by executive clemency. The Supreme

Court held in Heck v. Humphrey

, 512 U.S. 477 (1994), that §1983

cannot be used to seek damages when relief necessarily im

‐ plies the invalidity of a criminal conviction that remains in

force. Edwards v. Balisok

, 520 U.S. 641 (1997), extends this ap

‐ proach to prison discipline. Haywood offers two responses:

first, that his good

‐ time credits have now been restored, and,

second, that he has waived any challenge to the duration of

his confinement and therefore (he contends) should be al

‐

lowed to seek damages.

Although Haywood maintains that his good

‐ time credits

were restored while this appeal has been pending, the forms

that Haywood has submitted show only the Department of

Corrections’s calculation of his projected release date, not

whether the disciplinary board’s decision has been vacated inNo. 12

‐ 1678 3

the manner Heck and Edwards require. At all events, things

that happen after a district court’s decision do not demon

‐

strate that the court erred. Heck and Edwards hold that a §1983

claim does not accrue until the conviction or discipline had

been set aside. Once that occurs, the prisoner has the time al

‐

lowed by the statute of limitations (two years in Illinois) to

commence suit. A dismissal under Heck and Edwards is with

‐

out prejudice to litigation after a conviction or disciplinary

sanction is annulled.

As for his waiver of any challenge to the duration of con

‐

finement: that’s irrelevant because no matter what a prisoner

demands, or waives, §1983 cannot be used to contest the fact

or duration of confinement. See Preiser v. Rodriguez

, 411 U.S.

475 (1973). From its outset, this suit has been a quest for

money damages. That’s not all. The holding of Heck and Ed

‐

wards is that a claim under §1983 does not accrue as long as it

would imply the invalidity of a conviction or disciplinary

sanction that affects the duration of custody. If the claim has

not accrued, it cannot matter what relief a prisoner seeks. Yet

if it is possible to seek damages while waiving other relief, this

must mean that the claim accrues immediately and the statute

of limitations runs from the time of the events said to be

wrongful. That would surprise the many prisoners who wait

patiently until they are entitled to sue under Heck

, for if Hay

‐

wood is right the time to do so could have expired.

Haywood relies on Peralta v. Vasquez

, 467 F.3d 98 (2d Cir.

2006), which held that a prisoner who foreswears any contest

to the length of his confinement may use §1983 to seek dam

‐

ages. The Second Circuit understood “the purpose of the Heck

favorable termination requirement [to be] to prevent prison

‐4 No. 12

‐ 1678

ers from using §1983 to vitiate collaterally a judicial or admin

‐

istrative decision that affected the overall length of their con

‐

finement”. 467 F.3d at 104. To disavow any collateral attack on

the conviction or revocation of good

‐ time credits is to take the

situation outside Heck

, the court concluded. We do not agree

with that conclusion, which no other circuit has adopted

(though none has expressly rejected it, either).

Heck and Edwards say that a challenge is not possible as

long as it is inconsistent with the validity of a conviction or

disciplinary sanction. See also Nelson v. Campbell

, 541 U.S. 637,

646 (2004): “a §1983 suit for damages that would ‘necessarily

imply’ the invalidity of the fact of an inmate’s conviction, or

‘necessarily imply’ the invalidity of the length of an inmate’s

sentence, is not cognizable under §1983 unless and until the

inmate obtains favorable termination of a state, or federal ha

‐

beas, challenge to his conviction or sentence.” This is a version

of issue preclusion (collateral estoppel), under which the out

‐ standing criminal judgment or disciplinary sanction, as long

as it stands, blocks any inconsistent civil judgment. See Simp

‐

son v. Nickel

, 450 F.3d 303 (7th Cir. 2006); DeWalt v. Carter

, 224

F.3d 607 (7th Cir. 2000); Carr v. O’Leary

, 167 F.3d 1124 (7th Cir.

1999). It is a rationale considerably different from the one that

Peralta attributed to the Court.

In Wallace v. Kato

, 549 U.S. 384, 392 (2007), the Justices em

‐ phasized another of Heck ’s rationales:

[ Heck ] analogized [the §1983] suit to one for malicious prosecu

‐

tion, an element of which is the favorable termination of criminal

proceedings. [512 U.S.] at 484. We said:

“[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by ac

‐

tions whose unlawfulness would render a conviction or sen

‐

tence invalid, a §1983 plaintiff must prove that the convictionNo. 12

‐ 1678 5

or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal author

‐

ized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus, 28 U.S.C.

§2254. A claim for damages bearing that relationship to a con

‐

viction or sentence that has not been so invalidated is not cog

‐

nizable under §1983. Id

., at 486–487 (footnote omitted).”

We rested this conclusion upon “the hoary principle that civil tort

actions are not appropriate vehicles for challenging the validity of

outstanding criminal judgments.” Id

., at 486. “‘Congress,’” we

said, “‘has determined that habeas corpus is the appropriate rem

‐ edy for state prisoners attacking the validity of the fact or length

of their confinement, and that specific determination must over

‐

ride the general terms of §1983.’” Id

., at 482 (quoting Preiser v. Ro

‐ driguez

, 411 U. S. 475, 490 (1973)).

Nothing in Heck

, Edwards

, or any of the Court’s later decisions

suggests that the “favorable termination” element that the

Court thought essential can be elided by a plaintiff’s disavow

‐ ing a kind of relief that Preiser holds is never available under

§1983 in the first place. The approach taken in Peralta is in

‐ compatible with Heck and its successors; Peralta is function

‐ ally what would happen if the whole sequence were over

‐

ruled and only Preiser left standing.

Peralta is incompatible not only with the Supreme Court’s

decisions but also with McCurdy v. Sheriff of Madison County

,

128 F.3d 1144 (7th Cir. 1997), which held that a plaintiff cannot

sidestep Heck by conceding a conviction’s validity. Our deci

‐

sion in Burd v. Sessler

, 702 F.3d 429, 435–36 (7th Cir. 2012),

which holds that a prisoner cannot avoid Heck by waiting un

‐

til the sentence expires and it is too late to file a collateral at

‐

tack, also is irreconcilable with the Second Circuit’s view that

a §1983 suit for damages is permissible whenever it cannot6 No. 12

‐ 1678

end in a decision that changes the length of a person’s confine

‐

ment. We decline to follow Peralta

, which did not mention

McCurdy and therefore created a conflict among the circuits,

perhaps unintentionally. We shall stick with the established

law of this circuit.

Haywood’s Eighth Amendment claim is unaffected by

Heck

. He contends that the cell in which he was held during

his 60

‐ day term of segregation had a broken window and that,

when the prison’s power failed during a storm in January

2010, the heat went off and the temperature fell below freez

‐ ing. Haywood maintains that the guards refused to repair the

window or provide adequate clothing and blankets. Instead,

he asserts, the guards made conditions worse by turning on

the ventilation system (which he calls “the blowers”). Wind

aggravates the effect of cold by increasing the speed at which

heat is removed from exposed skin.

According to Haywood, power and heat were off for four

days, and when power was restored the cell remained frigid

and the guards continued to ignore his request to fix the win

‐

dow or provide blankets, a coat, or any other means of

warmth. If circumstances were as Haywood asserts, then the

prison violated his constitutional rights. Dixon v. Godinez

, 114

F.3d 640, 642 (7th Cir. 1997); Henderson v. DeRobertis

, 940 F.2d

1055, 1059 (7th Cir. 1991). See also Petties v. Carter

, 836 F.3d 722

(7th Cir. 2016) (en banc) (discussing standards of liability un

‐

der the Eighth Amendment in medical

‐ care situations). There

may be reasons to doubt Haywood’s account—if the cell was

as cold and his clothing as skimpy as he relates, he would

have suffered frostbite or death, yet he is alive and whole—

but on motion for summary judgment we must accept the

declarations in his affidavit.No. 12

‐ 1678 7

The district court granted summary judgment not because

it discounted Haywood’s evidence or thought the conditions

acceptable, but because of the identity of the sole defendant:

the warden. Haywood did not sue (or, if he did sue, did not

serve) the guards and other persons responsible for climate

control. He sued only the top of the organization, and the dis

‐

trict court concluded that the warden cannot be personally li

‐

able under the Supreme Court’s decision in Ashcroft v. Iqbal

,

556 U.S. 662, 677 (2009), that organizational heads and other

supervisors are not vicariously liable for their subordinates’

misdeeds. They are liable for their own acts but not deriva

‐ tively liable for other persons’ acts.

Farmer v. Brennan

, 511 U.S. 825 (1994), supplies the sub

‐

stantive rule of decision. There “the Supreme Court held that

prison officials have a duty to ‘ensure that inmates receive ad

‐

equate food, clothing, shelter, and medical care.’” Estate of

Miller ex rel. Bertram v. Tobiasz

, 680 F.3d 984, 989 (7th Cir. 2012)

(quoting Farmer

, 511 U.S. at 832). To determine whether an in

‐

mate’s Eighth Amendment rights were violated by a depriva

‐

tion, we examine the alleged violation both objectively and

subjectively. First, the deprivation alleged must be objectively,

sufficiently serious. Second, the mental state of the prison of

‐

ficial must have been one of deliberate indifference to inmate

health or safety. See Petties

, 836 F.3d at 728. The first element

is satisfied when the plaintiff shows that he was “incarcerated

under conditions posing a substantial risk of serious harm.”

Sanville v. McCaughtry

, 266 F.3d 724, 733 (7th Cir. 2001). There

is no question that the circumstances described by Haywood

satisfy this element.8 No. 12

‐ 1678

To meet the second element, a plaintiff must show that

“‘the official knows of and disregards an excessive risk to in

‐

mate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the infer

‐

ence.’” Estate of Miller

, 680 F.3d at 989 (quoting Sanville

, 266

F.3d at 734. A plaintiff need not “prove that his complaints

...

were ‘literally ignored,’; rather, he must show only that de

‐

fendants’ responses to it were so plainly inappropriate as to

permit the inference that the defendants intentionally or reck

‐ lessly disregarded his needs.” Hayes v. Snyder

, 546 F.3d 516,

524 (7th Cir. 2008) (citation omitted) (quoting Sherrod v. Lingle

,

223 F.3d 605, 611 (7th Cir. 2000)). Our en banc decision in Pet

‐

ties took this approach to medical

‐ care claims, and it is equally

applicable to related claims under the Cruel and Unusual

Punishments Clause.

Haywood brought forth evidence in opposition to Warden

Hathaway’s motion for summary judgment that Warden

Hathaway knew both of the extreme cold in the segregation

unit and the causes of that cold. Specifically, the warden knew

of the ice storm that caused the prison to lose power, see R.87

‐

4 (Warden Hathaway’s answers to interrogatories) at 16; he

was apprised that Haywood could not shut his window, see

R.1 at 19 (Emergency Grievance attached as exhibit to Com

‐ plaint) (“There is lots of air coming in through the windows

because the seals on the outside are broken.”); and he person

‐ ally toured the segregation unit at least once between January

and March 2009, see R.87

‐ 4 at 22 (“Defendant did go to Segre

‐ gation during this time frame [between January 9, 2009, and

March 9, 2009].”).No. 12

‐ 1678 9

The extent of the warden’s response to this information,

however, was that he “enured [sic] that the generators were

operating properly and had maintenance perform periodic

temperature checks.” Id

. at 23. Nothing in the record indicates

how frequently Warden Hathaway had maintenance perform

temperature checks, whether those were performed during or

after the power outage, or, indeed, whether any were per

‐

formed apart from the check of the unit on January 23—one

of the warmest days of the winter. Moreover, the fact that the

generators were operational would have little effect on the

temperature of the unit if, as Haywood testified, the windows

in the unit would not close. The warden’s “plainly inappro

‐ priate” responses to Hathaway’s grievance, to the extreme

weather, and to the situation in the segregation unit allow the

inference that he was deliberately indifferent to the extreme

cold suffered by Haywood and the other prisoners. See Hayes

,

546 F.3d at 524.

Our dissenting colleague reads Iqbal and Vance v. Rumsfeld

,

701 F.3d 193 (7th Cir. 2012) (en banc), to support a contrary

result. We do not believe, however, that Iqbal or Vance alters

the standards set forth in Farmer v. Brennan

. Indeed, Iqbal rec

‐ ognizes that “[t]he factors necessary to establish a Bivens vio

‐

lation will vary with the constitutional provision at issue.” 556

U.S. at 676. In Iqbal

, the Bivens claim alleged was “invidious

discrimination” on the basis of race, religion, and national

origin “in contravention of the First and Fifth Amendments.”

Id

. In such situations, the Court explained, “our decisions

make clear that the plaintiff must plead and prove that the

defendant acted with discriminatory purpose,” id

., and “a su

‐ pervisor’s mere knowledge of his subordinate’s discrimina

‐

tory purpose” is not sufficient, id

. at 677. Iqbal simply did not10 No. 12

‐ 1678

speak to standards of liability for Eighth Amendment viola

‐

tions, for Iqbal had not made a claim under that provision,

and the Court certainly gave no indication of discontent with

the settled law set forth in Farmer

. Moreover, even if it had

signaled an intent to depart from Farmer

, the Supreme Court

has admonished us not to anticipate its future steps. See, e.g.,

Bosse v. Oklahoma

, No. 15–9173 (U.S. Oct. 11, 2016) (collecting

authority).

This court’s decision in Vance is not without its ambigui

‐

ties. But one thing is clear: it must be read to conform to

Farmer

, the governing authority. It cannot be read, as the dis

‐

sent does, as altering the standards of Farmer

. In Vance

, the

plaintiffs alleged “torture and cruel, inhuman, and degrading

treatment,

... presented as Fifth Amendment substantive due

process claims,” Vance v. Rumsfeld

, 653 F.3d 591, 594 (7th Cir.

2011), vacated en banc, 701 F.3d 193, and sought damages

from the former Secretary of Defense. The specific question

before the court was “whether the federal judiciary should

create a right of action for damages against soldiers (and oth

‐

ers in the chain of command) who abusively interrogate or

mistreat military prisoners, or fail to prevent improper deten

‐

tion and interrogation.” Vance

, 701 F.3d at 195. We answered

this question in the negative. We further observed that “[e]ven

if we were to create a common

‐ law damages remedy against

military personnel and their civilian superiors, former Secre

‐

tary Rumsfeld could not be held liable.” Id

. at 203. We ob

‐

served that

Farmer rejected a contention that wardens (or guards) can be liable

just because they know that violence occurs in prisons and don’t

do more to prevent it on an institution

‐ wide basis. To get any

‐

where, Vance and Ertel would need to allege that Rumsfeld knewNo. 12

‐ 1678 11

of a substantial risk to security contractors’ employees, and ig

‐

nored that risk because he wanted plaintiffs (or similarly situated

persons) to be harmed.

Id

. at 204. This dicta overstates Farmer ’s holding. Farmer in

‐

structs that the deliberate indifference standard “is satisfied

by something less than acts or omissions for the very purpose

of causing harm or with knowledge that harm will result”:

We hold

... that a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane conditions of

confinement unless the official knows of and disregards an exces

‐

sive risk to inmate health or safety; the official must both be aware

of facts from which the inference could be drawn that a substan

‐

tial risk of serious harm exists, and he must also draw the infer

‐

ence.

Farmer

, 511 U.S. at 835, 837.

In any event, the standard articulated in Vance is satisfied

here. The evidence showed that Warden Hathaway had actual

knowledge of the unusually harsh weather conditions, that he

had been apprised of the specific problem with the physical

condition of Haywood’s cell (i.e., the windows would not

shut), and that, during the time period of Haywood’s com

‐ plaint, the warden toured the segregation unit himself. These

facts establish that Warden Hathaway’s response was not

simply “plainly inappropriate,” but that Haywood’s com

‐ plaints “literally [were] ignored” by the individual in the po

‐

sition to remedy them. Hayes

, 546 F.3d at 524 (internal quota

‐

tion marks omitted).

In short, there simply is no evidence that, in Iqbal

, the Su

‐

preme Court overruled or limited Farmer

. See Minneci v. Pol

‐

lard

, 132 S. Ct. 617, 625 (2012) (noting Farmer ’s deliberate in

‐

difference standard). Vance

, as well, has no direct application12 No. 12

‐ 1678

to this case. Vance concerned the possibility of holding the cab

‐

inet secretary of a federal department responsible for the im

‐ plementation of policy at the individual level—a far cry from

holding the administrator of a single facility liable for known

deficiencies that directly threatened the welfare of prisoners

for whom he was responsible. See 730 ILCS 5/3

‐ 6

‐ 2 (“A chief

administrative officer shall be responsible for all persons as

‐ signed to the institution or facility.”). Vance did not alter—nor

could it alter—the standards set forth in the Court’s Eighth

Amendment caselaw. Indeed, since Vance

, we have continued

to apply Farmer to allegations of unconstitutional conditions

of confinement. See Townsend v. Cooper

, 759 F.3d 678, 685, 689

(7th Cir. 2014) (applying Farmer to claims brought against the

warden and other prison officials who were involved in the

decision to impose a behavior action plan that resulted in un

‐

constitutional conditions of confinement).

Consistent with our approach in Townsend

, other courts of

appeals have determined that, post

‐ Iqbal

, Farmer ’s deliberate

indifference standard continues to govern claims of un

‐ con

‐

stitutional conditions of confinement brought against super

‐ visory prison officials. See Barkes v. First Correctional Medical,

Inc

., 766 F.3d 307, 316–20 (3d Cir. 2014) (holding that deliber

‐

ate indifference standard “for imposing supervisory liability

based on an Eighth Amendment violation is consistent with

Iqbal ” and collecting cases), reversed on other grounds under

the name Taylor v. Barkes

, 135 S. Ct. 2042 (2015) (holding that

defendants were entitled to official immunity and not ad

‐ dressing the merits); see also Colwell v. Bannister

, 763 F.3d 1060

(9th Cir. 2014) (applying Farmer ’s deliberate indifference

standard to evaluate liability of prison official post

‐ Iqbal ).No. 12

‐ 1678 13

The judgment is affirmed with respect to the First Amend

‐

ment theory and reversed with respect to the Eighth Amend

‐

ment theory. The case is remanded for proceedings consistent

with this opinion.14 No. 12

‐ 1678

E ASTERBROOK

, Circuit Judge

, dissenting in part. I agree with

the court’s disposition of Haywood’s First Amendment claim

but not with its conclusion that Warden Hathaway can be per

‐ sonally liable for cold temperatures in his cell.

Haywood seeks to hold the warden directly (rather than

derivatively) liable on the theory that he filed two grievances

alerting the warden to the cold. But Iqbal concludes that

knowledge is not enough.

[Respondent argues that supervisors] can be liable for

“knowledge and acquiescence in their subordinates’ use of dis

‐ criminatory criteria to make classification decisions among de

‐

tainees.” Iqbal Brief 45–46. That is to say, respondent believes a

supervisor’s mere knowledge of his subordinate’s [misconduct]

amounts to the supervisor’s violating the Constitution. We reject

this argument. Respondent’s conception of “supervisory liability”

is inconsistent with his accurate stipulation that [supervisors] may

not be held accountable for the misdeeds of their agents. 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.

556 U.S. at 677. We applied this principle in Vance v. Rumsfeld

,

701 F.3d 193, 203–05 (7th Cir. 2012) (en banc), when holding

that notice to the Secretary of Defense about subordinates’

misconduct did not expose the Secretary to damages for fail

‐ ing to ensure that it stopped. The Secretary may be liable for

unlawful policies but does not guarantee that lawful policies

are carried out correctly. See also, e.g., Burks v. Raemisch

, 555

F.3d 592 (7th Cir. 2009), which holds that prison officials who

receive and respond to prisoners’ grievances do not become

vicariously liable just because they fail to ensure that the

grievances are properly redressed. Just as a prison’s wardenNo. 12

‐ 1678 15

in Illinois is responsible for all employees, 730 ILCS 5/3

‐ 6

‐ 2, so

a Secretary of Defense has full authority over all of his subor

‐

dinates. 10 U.S.C. §113(b). Yet Vance held that insufficient to

make the Secretary liable for failing to prevent their miscon

‐

duct.

No one contends that Warden Hathaway had a policy that

authorized, or even tolerated, subjecting prisoners to freezing

temperatures. To the contrary, it is undisputed that, when he

received Haywood’s first grievance, he directed one of the

prison’s engineers to find out what was happening. The engi

‐

neer told the warden that the temperature in Haywood’s cell

was 75° F, and the warden then dismissed the grievance. If the

engineer was lying, he might face liability, but it is impossible

to see how the warden himself could be liable—and that con

‐

clusion would hold even if Iqbal had come out the other way

and held that supervisors can be liable just because they know

that subordinates are misbehaving. Haywood’s description of

the blowers as “torture” does not add anything, because air

movement at 75° is hardly an intolerable condition of confine

‐

ment. And Haywood’s second complaint to the warden also

does not add anything, not only because of Iqbal but also be

‐

cause the record shows that it did not reach the warden’s desk

until March 9, 2010, the day that Haywood was returned to

the general population. Nothing the warden did, or omitted,

in response to the second grievance could have affected Hay

‐

wood.

Prisoners need to sue the persons responsible for the con

‐

ditions of which they complain. A warden is an easy target—

his name is known, and it is easy to achieve service of process.

But decisions such as Iqbal and Vance mean that liability rests

with the people who injure prisoners; the top of a bureaucratic16 No. 12

‐ 1678

hierarchy is the wrong person to sue, unless the claim con

‐

cerns the prison’s formal policies or other decisions that the

warden took personally.

I do not read Iqbal or Vance as incompatible with Farmer

, which did not address the question whether supervisors can

be liable for failing to cure problems created or ignored by

their subordinates. By contrast, Iqbal and Vance do address

that situation. We observed in Vance that a supervisor does not

become liable just because someone sends him a message no

‐ tifying him that bad things are going on. That’s what plaintiffs

alleged in Vance

, and a panel held the allegation sufficient, but

the en banc court held it legally insufficient. 701 F.3d at 203–

05. (Part IV of Vance

, which announces this conclusion, cannot

be dismissed as dictum; it was an alternative holding. The fact

that a court gives two independently sufficient reasons for a

disposition does not mean that each is dictum because the

other would have sufficed; on that approach, the whole opin

‐

ion could be dismissed as dictum.)

Vance shows that supervisors are entitled to delegate. The

top of an organization must be able to allocate duties without

being personally liable if subordinates mess up. Warden

Hathaway delegated. He sent an engineer to diagnose the sit

‐

uation and fix any problem. The engineer reported that there

was no problem. Haywood chose not to sue the engineer, the

engineer’s subordinates, or the personnel who should have

repaired any broken window, but Haywood’s choice cannot

mean that the warden becomes personally liable for his sub

‐

ordinates’ inaction or ineptitude.

My colleagues are among many federal judges who prefer

an approach under which notice to a supervisor is enough to

create personal liability. The Supreme Court encounteredNo. 12

‐ 1678 17

such an approach in Iqbal and disapproved it. When a panel

of this court adopted that approach in Vance

, the court took

the case en banc and disapproved it. As my colleagues ob

‐

serve, decisions in other circuits have continued to impose su

‐ pervisory liability when notice does not lead to a remedy.

They cite Barkes v. First Correctional Medical, Inc

., 766 F.3d 307,

320 (3d Cir. 2014), and Colwell v. Bannister

, 763 F.3d 1060 (9th

Cir. 2014), and might have added a citation to Turkmen v.

Hasty

, 789 F.3d 218, rehearing en banc denied, 808 F.3d 197 (2d

Cir. 2015). Barkes has been reversed on immunity grounds, 135

S. Ct. 2042 (2015), and the Justices did not tell us their view of

the merits; Colwell concerned supervisors’ policies and not

just failure to control subordinates, so its bearing on our dis

‐

pute is doubtful; but Turkmen deals with both policy

‐ creation

and subordinate

‐ control in one package.

The grants of certiorari in Turkmen set the stage for a new

look at the question whether and when supervisors (includ

‐ ing Hasty, a prison’s warden) can be liable for failing to pre

‐

vent or rectify misconduct by guards and other subordinates.

See Zilgar v. Turkmen

, No. 15–1358 (U.S. Oct. 11, 2016) (consol

‐

idated with Ashcroft v. Turkmen

, No. 15–1359, and Hasty v.

Turkmen

, No. 15–1363). The sort of dispute represented by

Haywood’s Eighth Amendment claim is now in the hands of

the Supreme Court. Turkmen may be decided on other

grounds (the lead argument is that the Second Circuit erred

in implying a Bivens remedy against supervisors, while §1983

supplies an express remedy in our case), but even so Turkmen

may reflect on the circumstances under which heads of organ

‐

izations who are alerted to problems but don’t fix them can be

liable for that failure. They ducked in Barkes

, a summary re

‐

versal, but may conclude that resolution is due in Turkmen

,

which will be briefed and argued.