FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DION STARR,  No. 09-55233

Plaintiff-Appellant, D.C. No.

v. 2:08-cv-00508-  GW-SH LEROY BACA, Los Angeles County

Sheriff; in his individual capacity, ORDER AND

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted

June 8, 2010—Pasadena, California

Filed July 25, 2011

Before: Stephen S. Trott and William A. Fletcher,

Circuit Judges, and Charles R. Breyer, District Judge.*

Opinion by Judge William A. Fletcher;

Dissent by Judge Trott

*The Honorable Charles R. Breyer, United States District Judge for the

Northern District of California, sitting by designation. 

9795
COUNSEL

Sonia Maria Mercado, R. Samuel Paz, LAW OFFICES OF R.

SAMUEL PAZ, Culver City, California, for the plaintiffappellant.

Melinda Cantrall, Adrianna Corrado, HURRELL & CANTRALL LLP, Los Angeles, California, for defendant-appellee

Baca.

STARR v. BACA 9799
ORDER

The opinion filed on February 11, 2011, and published at

633 F.3d 1191 (9th Cir. 2011), is withdrawn and replaced by

the attached opinion.

The petitions for rehearing and for rehearing en banc, filed

February 25, 2011, are hereby denied as moot.

No new petitions for rehearing or petitions for rehearing en

banc shall be accepted in this case. However, any member

of this court may make a sua sponte en banc call challenging

the opinion filed today.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiff Dion Starr brings a § 1983 action for damages

resulting from a violent attack he allegedly suffered while he

was an inmate in the Los Angeles County Jail. The district

court dismissed Starr’s supervisory liability claim for deliberate indifference against Sheriff Leroy Baca in his individual

capacity under Federal Rule of Civil Procedure 12(b)(6).

Because we hold that Starr has adequately stated a claim, we

reverse and remand for further proceedings.

I. Background

Starr’s Third Amended Complaint alleges that on or about

January 27, 2006, he was in custody in the Los Angeles

County Jail. A group of inmates gathered at his cell door and

threatened to inflict physical harm on him. He yelled for the

deputies guarding the jail to come to his aid. Instead of protecting him, a deputy opened Starr’s cell gate in order to allow

the group of inmates to enter. The inmates entered the cell and

9800 STARR v. BACA
repeatedly stabbed Starr and his cellmate with knife-like

objects. They stabbed Starr twenty-three times while Starr

screamed for help and protection. After the attacking inmates

left the cell, several deputies went to Starr. Starr lay on the

floor of his cell, seriously injured, bleeding and moaning in

pain. One deputy yelled at him, “nigger lay down.” While

repeatedly yelling “shut up nigger,” the deputy then kicked

his face, nose, and body numerous times, causing pain, bleeding and a nose fracture. Other deputies stood by and watched.

The deputy who kicked Starr subsequently interfered with his

ability to obtain medical treatment for his injuries. Starr continues to suffer from and receive treatment for his injuries. 

Starr sued Sheriff Baca as well as the deputies directly

involved in the attack. His claims against the deputies are not

at issue in this appeal. In his claim against Sheriff Baca, Starr

alleges unconstitutional conditions of confinement in violation of the Eighth and Fourteenth Amendments. He alleges

that Sheriff Baca is liable in his individual capacity because

he knew or should have known about the dangers in the Los

Angeles County Jail, and that he was deliberately indifferent

to those dangers.

After giving Starr several chances to plead his claim

against Sheriff Baca, the district court dismissed the claim

with prejudice under Rule 12(b)(6). The district court held

that Starr’s allegations against Sheriff Baca were insufficient

to state a supervisory liability claim for deliberate indifference

because the complaint’s recital of prior incidents and accompanying allegations did not sufficiently state a causal connection between Sheriff Baca’s action and inaction and the

alleged injury to Starr. The district court wrote that Starr

“does not allege that Baca himself directly participated in any

way in the January 27, 2006 incident or that he was involved

in any review or investigation of it.” Nor, the district court

held, did Starr allege any specific policy implemented by

Sheriff Baca that caused the violation.

STARR v. BACA 9801
The district court directed that final judgment in favor of

Sheriff Baca be entered under Federal Rule of Civil Procedure

54(b). Starr appeals.

II. Standard of Review

We review de novo a district court’s dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a

claim. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590

F.3d 806, 811-12 (9th Cir. 2010).

III. Discussion

To prevail on his claim under the Eighth and Fourteenth

Amendments, Starr must demonstrate “either that prison officials acted with ‘deliberate indifference’ or that their conduct

was so reckless as to be tantamount to a desire to inflict

harm.” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1449

(9th Cir. 1991). The gravamen of Starr’s claim against Sheriff

Baca is deliberate indifference.

On appeal, Starr contends that the district court erred in dismissing his claim against Sheriff Baca on the pleadings. Sheriff Baca contends that the Supreme Court eliminated all

claims for supervisory liability — including deliberate indifference claims — in its decision in Ashcroft v. Iqbal, 129

S.Ct. 1937 (2009). He contends, further, that even under preIqbal case law, Starr has not alleged a causal connection

between Sheriff Baca’s conduct and his injury. Finally, he

contends that Starr has failed to allege anything more than

legal conclusions, rendering the complaint insufficient under

Federal Rule of Civil Procedure 8(a), as interpreted by Iqbal.

Because the question of whether Iqbal eliminated supervisory liability claims based on deliberate indifference was not

adequately briefed, we ordered supplemental briefing after

oral argument. Having reviewed the original and supplemental briefing, we now address the parties’ arguments.

9802 STARR v. BACA
A. Supervisory Liability for Deliberate Indifference after

Iqbal

We have long permitted plaintiffs to hold supervisors individually liable in § 1983 suits when culpable action, or inaction, is directly attributed to them. We have never required a

plaintiff to allege that a supervisor was physically present

when the injury occurred. In Larez v. City of Los Angeles, 946

F.2d 630 (9th Cir. 1991), we explained that to be held liable,

the supervisor need not be “directly and personally involved

in the same way as are the individual officers who are on the

scene inflicting constitutional injury.” Id. at 645. Rather, the

supervisor’s participation could include his “own culpable

action or inaction in the training, supervision, or control of his

subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is made,” or “conduct that

showed a reckless or callous indifference to the rights of others.” Id. at 646 (internal citations, quotation marks, and alterations omitted).

After the district court dismissed Starr’s claim, but before

briefing on appeal, the Supreme Court decided Iqbal. Plaintiff

Iqbal, a Pakistani Muslim, had been arrested and detained in

severely restrictive conditions following the attacks of September 11, 2001. Id. at 1943. He filed a Bivens action in federal court against his jailers and various officials, including

Attorney General John Ashcroft and F.B.I. Director Robert

Mueller, alleging purposeful discrimination on the basis of

race, religion and national origin. Id. (citing Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)). A

Bivens action seeks to hold federal officers individually liable

for constitutional violations. Although “more limited in some

respects,” a Bivens action is the federal analog to an action

against state or local officials under § 1983. Hartman v.

Moore, 547 U.S. 250, 254 n.2 (2006).

The Court held that Iqbal’s complaint failed to plead facts

sufficient to state a claim against Attorney General Ashcroft

STARR v. BACA 9803
and Director Mueller for purposeful and unlawful discrimination. Iqbal, 129 S. Ct. at 1954. The Court explained that

because Bivens and § 1983 suits do not allow for the imposition of vicarious liability, stating a claim against a government official in his or her individual capacity for purposeful

discrimination requires pleading that “each Governmentofficial defendant, through the official’s own individual

actions, has violated the Constitution.” Id. at 1948.

[1] The Court stated that “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Id. The Court explained that purposeful

discrimination, which was alleged against Attorney General

Ashcroft and Director Mueller, requires a plaintiff to “plead

and prove that the defendant acted with discriminatory purpose.” Id. Proving purposeful discrimination requires showing

“more than intent as volition or intent as awareness of consequences”; the plaintiff must show that the decisionmaker

acted because of his action’s adverse effects, not merely in

spite of them. Id. (internal quotation marks omitted). Therefore, the supervisors in Iqbal needed to have “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.” Id. at 1948-49.

Holding Attorney General Ashcroft and Director Mueller personally liable for unconstitutional discrimination if they did

not themselves have a discriminatory purpose would be

equivalent to finding them vicariously liable for their subordinates’ violation, which Bivens and § 1983 do not allow. In so

holding, Iqbal followed earlier cases holding that alleging a

supervisor’s mere awareness of the discriminatory effects of

his or her actions or inaction does not state a claim of unconstitutional discrimination.

[2] Starr does not allege purposeful discrimination by

Sheriff Baca. Rather, he alleges unconstitutional conditions of

confinement in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment, as incorporated

9804 STARR v. BACA
through the Due Process Clause of the Fourteenth Amendment. A claim of unconstitutional conditions of confinement,

unlike a claim of unconstitutional discrimination, may be

based on a theory of deliberate indifference. See Farmer v.

Brennan, 511 U.S. 825 (1994). A showing that a supervisor

acted, or failed to act, in a manner that was deliberately indifferent to an inmate’s Eighth Amendment rights is sufficient to

demonstrate the involvement — and the liability — of that

supervisor. Thus, when a supervisor is found liable based on

deliberate indifference, the supervisor is being held liable for

his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her

subordinates.

[3] We see nothing in Iqbal indicating that the Supreme

Court intended to overturn longstanding case law on deliberate indifference claims against supervisors in conditions of

confinement cases. We also note that, to the extent that our

sister circuits have confronted this question, they have agreed

with our interpretation of Iqbal. See Dodds v. Richardson, 614

F.3d 1185, 1204 (10th Cir. 2010) (“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 occur at the hands of his subordinates, unless that is the same state of mind required for the

constitutional deprivation he alleges.” (emphasis added; internal quotation marks omitted)); Sandra T.E. v. Grindle, 599

F.3d 583, 591 (7th Cir. 2010) (Iqbal does not change the fact

that “[w]hen a state actor’s deliberate indifference deprives

someone of his or her protected liberty interest in bodily

integrity, that actor violates the Constitution, regardless of

whether the actor is a supervisor or subordinate, and the actor

may be held liable for the resulting harm.”); Sanchez v.

Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (“Although

‘Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of

respondeat superior,’ supervisory officials may be liable on

STARR v. BACA 9805
the basis of their own acts or omissions,” including supervising “with deliberate indifference toward the possibility that

deficient performance of the task may contribute to a civil

rights deprivation.” (quoting Iqbal, 129 S. Ct. at 1948) (some

internal quotation marks omitted)).

[4] We therefore conclude that a plaintiff may state a claim

against a supervisor for deliberate indifference based upon the

supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.

B. Supervisory Liability for Deliberate Indifference

Sheriff Baca contends that even under a deliberate indifference standard Starr has failed to state a claim for supervisory

liability. He contends that Starr’s claim fails for want of a

causal connection between Sheriff Baca’s allegedly wrongful

action and inaction and Starr’s alleged injury. We disagree.

[5] A defendant may be held liable as a supervisor under

§ 1983 “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient

causal connection between the supervisor’s wrongful conduct

and the constitutional violation.” Hansen v. Black, 885 F.2d

642, 646 (9th Cir. 1989). “[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate

cause of the injury. The law clearly allows actions against

supervisors under section 1983 as long as a sufficient causal

connection is present and the plaintiff was deprived under

color of law of a federally secured right.” Redman, 942 F.2d

at 1447 (internal quotation marks omitted).

[6] “The requisite causal connection can be established . . .

by setting in motion a series of acts by others,” id. (alteration

in original; internal quotation marks omitted), or by “knowingly refus[ing] to terminate a series of acts by others, which

[the supervisor] knew or reasonably should have known

would cause others to inflict a constitutional injury,” Dubner

9806 STARR v. BACA
v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir.

2001). “A supervisor can be liable in his individual capacity

for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in

the constitutional deprivation; or for conduct that showed a

reckless or callous indifference to the rights of others.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)

(internal alteration and quotation marks omitted).

Our decision in Redman is illustrative. In Redman, the

plaintiff alleged that the facility in which he was confined was

overcrowded; that the Sheriff knew the facility was not a

proper place to detain him and posed a risk of harm but had

placed him there anyway; and that the Sheriff was ultimately

in charge of the facility’s operations. 942 F.2d at 1446-47.

Reversing the district court’s grant of a directed verdict in

favor of the Sheriff, we concluded that a reasonable jury

could have found that the Sheriff was deliberately indifferent

to the plaintiff’s safety. Id. at 1447-48. Such a jury could have

found that the Sheriff “knew or reasonably should have

known of the overcrowding” and that “he acquiesced in a

deficient policy that was a moving force behind” the harm

caused to the plaintiff. Id. at 1447.

[7] Starr alleges that Sheriff Baca’s knowledge of the

unconstitutional conditions in the jail, including his knowledge of the culpable actions of his subordinates, coupled with

his inaction, amounted to acquiescence in the unconstitutional

conduct of his subordinates. As we noted in Redman, under

California law, “[t]he sheriff is required by statute to take

charge of and keep the county jail and the prisoners in it, and

is answerable for the prisoner’s safekeeping.” Id. at 1446 (citing Cal. Gov. Code §§ 26605, 26610; Cal. Penal Code

§ 4006). We have held that “acquiescence or culpable indifference” may suffice to show that a supervisor “personally

played a role in the alleged constitutional violations.” Menotti

v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005); see

Redman, 942 F.2d at 1446. Starr’s allegations that the actions

STARR v. BACA 9807
or inactions of the person “answerable for the prisoner’s safekeeping” caused his injury are therefore sufficient to state a

claim of supervisory liability for deliberate indifference.

C. Adequacy of Starr’s Complaint Under Rule 8(a)

Finally, Sheriff Baca argues that even if Starr’s complaint

might be read to state a claim of deliberate indifference, it

does not satisfy the pleading standard that the Court in Iqbal

held Federal Rule of Civil Procedure 8(a) to require. Our dissenting colleague agrees with the district court that Starr has

not satisfied the pleading requirements of Rule 8(a), as interpreted by Iqbal. He writes, “Plaintiff’s complaint does nothing more than allege raw legal conclusions with insufficient

facts to support them.” Diss. Op. at 9824. We disagree.

1. Allegations of the Complaint

Starr claims that Sheriff Baca failed to act to protect

inmates under his care despite his knowledge that they were

in danger because of culpable acts of his subordinates and

despite his ability to take actions that would have protected

them. To use language from our prior opinions, Starr claims

that Sheriff Baca “knowingly refused to terminate a series of

acts by others, which he knew or reasonably should have

known would cause . . . constitutional injury.” Dubner, 266

F.3d at 968. Or, to state it slightly differently, Starr claims

that Sheriff Baca is “liable in his individual capacity for his

own culpable action or inaction in the training, supervision,

or control of his subordinates[.]” Watkins, 145 F.3d at 1093

(emphasis added; internal quotation marks omitted).

It is somewhat tedious to recount the many allegations in

the complaint detailing what Sheriff Baca knew or should

have known, and what Sheriff Baca did or failed to do. But

given our colleague’s conclusion that Starr’s complaint has

not satisfied Rule 8(a), we feel obliged to do so.

9808 STARR v. BACA
In paragraph 36, Starr alleges that the United States Department of Justice (“DOJ”) initiated an investigation into conditions at Los Angeles County Jails in June 1996. On

September 5, 1997, the DOJ “gave BACA, then a supervisor,

clear written notice in a ‘findings letter’ of a continued and

serious pattern and practices of constitutional violations

including[ ] abuse of inmates by sheriff’s deputies working in

the jail and inmate on inmate violence.” 

In paragraph 37, Starr alleges that Sheriff Baca receives

“weekly reports from his subordinates responsible for reporting deaths and injuries in the jails,” and receives “ongoing

reports of his Special Counsel and Office of Independent

Review.” 

In paragraph 38, Starr alleges that in 1999, “under threat of

a lawsuit by the DOJ, BACA and the COUNTY submitted to

a Memorandum of Understanding (“MOU”) with the DOJ

which required BACA and the COUNTY to address and correct the continuous constitutional violations to which inmates

were being subjected, particularly inmates suffering from

mental problems. BACA personally signed the MOU. However, after years of monitoring the County Jail system, under

the authority of the MOU, in 2006, the DOJ experts issued a

report which still found noncompliance with many of its recommendations regarding the abuse of inmates and the deficiencies which continue at county jails[.]” 

In paragraph 39, Starr alleges that on July 6, 2002, “Ramon

Gavira was severely beaten by a female deputy and later . . .

was killed in his cell at [the] county jail. Deputies and staff

testified that they were not investigated nor disciplined for

lapses in supervision of Mr. Gavira and allegations that Mr.

Gavira had been physically abused by deputies. BACA was

personally advised of the failure to investigate and no discipline being imposed[.]”

In paragraph 40, Starr alleges that on March 23, 2003,

“BACA was . . . again made aware of Hispanic inmate gangs

STARR v. BACA 9809
attacking African Americans and the failure to provide reasonable security when the COUNTY and LASD [Los Angeles

County Sheriff’s Department] approved a settlement in a civil

action where Ahmad Burrell, Rory Fontanelle, and Aaron

Cunningham were attacked over a three day period, sustaining

serious injuries. Although the deputies had known that Hispanic gangs were going to attack African Americans, . . . the

deputies failed to provide reasonable security and Burrell was

attacked in the housing dormitory and the attackers were able

to stab him twenty-four (24) times, some causing serious and

permanent injury to his abdomen and head.”

In paragraph 41, Starr alleges that on October 21, 2003,

“inmate Ki Hong was killed by three inmates who entered the

dayroom where Hong was housed. . . . Notice of numerous

violations showing deputies failing to provide reasonable

security and abandoning their duties, their lax discipline and

failure to supervise were given to BACA by his in-house lawyers, yet the inmate on inmate violence continued. This was

the first of five inmate-on-inmate killings that occurred in the

jail system over a six-month period.”

In paragraph 42, Starr alleges that on December 6, 2003,

“Inmate Prendergast was beaten periodically over several

hours from about 6:00 p.m., to early next morning by . . . two

of his three cellmates. . . . Again, notice of numerous violations showing deputy failing to provide reasonable security to

the entire cell block, lax discipline and failure to supervise

were presented to BACA, yet the inmate on inmate violence

continued.” 

In paragraph 43, Starr alleges that on December 9, 2003,

“inmate Mario Alvarado . . . was killed in a holding cell.

. . . Deputies responsible for providing reasonable security

failed to . . . do so, and the inmates who beat Alvarado had

so much time they [were able to] conceal[ ] his dead body

under clothes and trash . . . . Again, notice of numerous violations showing deputy failing to provide reasonable security to

9810 STARR v. BACA
the holding cell, lax discipline and failure to supervise were

presented to BACA[.]” 

In paragraph 44, Starr alleges that on December 13, 2003,

a deputy falsified the contents of a statement by a pre-trial

detainee, Jose Beas, so that the falsified statement recounted

that Beas had admitted to inappropriate touching of a minor.

Beas was classified as an inmate who should be kept away

from the general prison population, and was “given a wrist

band that identified him as such,” but he was placed in a holding tank with “general population inmates.” “Beas was immediately beaten by the other inmates and suffered brain

damage. BACA was named as a defendant in that civil case

and knew of the allegations of failure to provide reasonable

security to the holding cell, lax discipline and failure to supervise[,] and [he] approved the settlement[.]”

In paragraph 45, Starr alleges that on January 12, 2004, “inmate Kristopher Faye was stabbed to death by several inmates

with jail-made knives. . . . Fay[e] was African American and

the attackers were Hispanic. Deputies responsible for keeping

the cell gates in the housing module close[d] allowed all the

cell gates in the module to remain open which increased the

danger of violence and was in violation of LASD policy.

. . . Numerous violations showing errors in classification,

placing highly dangerous inmates with histories of violence

with nonviolent inmates presenting low security risk, deputy

failing to provide reasonable security to the holding cell, lax

discipline and failure to supervise were again presented to

BACA in official reports[.]”

In paragraph 46, Starr alleges that on April 20, 2004, “inmate Raul Tinajero was killed in his cell in the jail, by inmate

Santiago Pineda. Pineda had a history of prior misconduct in

the jail[.] . . . Tinajero was to be a witness in a criminal case

against Pineda. . . . Due to the monitoring failures of the deputies and inadequate procedures with regard to the escorting of

inmates, Pineda was able to enter Tinajero’s cell unchallenged

STARR v. BACA 9811
by the deputies responsible for providing reasonable security,

kill Tinajero undetected, [and] remain in Tinajero’s cell for

five hours undetected by deputies. Numerous violations showing errors in classification, deputies failing to provide reasonable security to the housing cells, lax discipline and failure to

supervise were again presented to BACA in official

reports[.]”

In paragraph 47, Starr alleges that on May 23 or 24, 2004,

inmate Antonio Fernandez was killed by other inmates in the

dormitory. “The deputy that was assigned to monitor the dormitory had abandoned her duties and left her post unattended,

and the post was vacant for approximately 20 minutes during

which time the assault occurred. . . . [T]he failure to provide

reasonable security to [the] housing area, lax discipline and

failure to supervise were again presented to BACA[.]” 

In paragraph 48, Starr alleges, “BACA received notice

from The Special Counsel to the Los Angeles County Sheriff’s Department, in the 17th Semiannual Report (February

2004) and the 18th Semiannual Report (August 2004) of

increasing levels of inmate violence in the jails.”

In paragraph 49, Starr alleges that in “February 2005

BACA received notice from The Special Counsel to the Los

Angeles County Sheriff’s Department, in the 19th Semiannual

Report that his deputies[’] conduct was . . . costing county tax

payers millions of dollars annually in payments of civil judgments and settlements, in cases where the internal investigations had found no wrong doing. In all, BACA was notified

by his Special Counsel that . . . of twenty-nine (29) cases

involving police misconduct [that] settled for $100,000 or

more over the past five years, only eight resulted in any type

of discipline to the involved officers or policy change in the

Department.”

In paragraph 50, Starr alleges that on February 3, 2005,

Special Counsel Merrick Bobb presented to BACA a finding

9812 STARR v. BACA
of inmate abuse, contained in a report to the Los Angeles

County Board of Supervisors. The report found “that ‘Los

Angeles County’s largest jail is so outdated, understaffed and

riddled with security flaws that it jeopardizes the lives of

guards and inmates.’ The Special Counsel’s report criticized

the County Jail in downtown Los Angeles for ‘failing to prevent dangerous inmates from being housed with lower-risk

inmates . . . .’ The report concluded that Men[’]s[ ] Central

Jail ‘is nightmarish to manage’ and suffers from ‘lax supervision and a long-standing jail culture that has shortchanged

accountability for inmate safety and security.’ ”

In paragraph 52, Starr alleges that on October 24, 2005,

Chadwick Shane Cochran was booked into county jail for a

nonviolent misdemeanor. Due to mental health difficulties,

Cochran was classified to be placed in a mental health facility

located within the jail. “Due to errors by staff his protective

housing was terminated and he was sent to general population

on November 16, 2005, where he was beaten to death a few

hours later that day. Deputies compounded the error of

removing Cochran from protective status and left a red color

identification card which led the attacking inmates to believe

that he was a ‘snitch’ or informant. The deputies responsible

for the safety of inmates abandoned their post and supervision

of the locked day room in which 40 other inmates, some of

whom were classified as violent ‘high risk’ accused murderers

and gang members, and known violent offenders. Cochran

was screaming and many other inmates were yelling for them

to stop, but no deputy resumed their responsibility to provide

reasonable security until the inmates had grown tired of beating Cochran and hid his body under clothing and food trays.

The numerous errors in classification, deputies failing to provide reasonable security to the day room housing cells, lax

discipline and failure to supervise were again presented to

BACA in official reports[.]”

In paragraphs 13 through 19, Starr alleges that he was

attacked three months after Cochran was killed. We recounted

STARR v. BACA 9813
the details of this alleged attack at the beginning of our opinion.

In paragraph 32, Starr alleges that Sheriff “BACA knew or

reasonabl[y] could have known[ ] of his subordinates’ ongoing constitutional violations . . . , of the failure to provide reasonable security at the jail, failure to prevent inmate on

inmate violence, failure to monitor inmates, lax or no supervision by his subordinate supervisors, use of excessive force on

inmates, failure to investigate incidents . . . involving inmate

on inmate violence, failure to protect, failure to implement

indicated policies and procedures regarding, including but not

limited to[,] the use of inmates as trustees[.] BACA failed to

act to prevent his subordinates[’] ongoing unconstitutional

conduct[;] . . . he acquiesced, condoned or ratified a custom,

practice or policy of ongoing misconduct by his subordinate

deputies and supervisors.” In paragraph 35, Starr alleges that

“Sheriff BACA . . . became aware, or should have become

aware, and should have taken corrective actions to prevent

repeated incidents” of derelictions of duty by his subordinates.

2. Pleading Standards under Rule 8(a)

[8] We hold that the foregoing allegations are sufficient to

satisfy Rule 8(a). The text of Rule 8(a) has not been changed

since the initial promulgation of the Federal Rules of Civil

Procedure in 1938. In relevant part, it provides:

(a) Claim for Relief. A pleading that states a claim

for relief must contain:

. . .

(2) a short and plain statement of the claim showing that the pleader is entitled to relief[.] 

The theory of Rule 8(a), and of the federal rules in general,

is notice pleading. The 1938 federal rules replaced a system

9814 STARR v. BACA
in which the federal trial courts had followed the procedural

rules of the different states in which they sat. Conformity Act

of 1872, Act of June 1, 1872, ch. 225, § 5, 17 Stat. 196, 197

(codified in Rev. Stat. § 914 (1878)). Ever since 1938, the

federal civil rules have been applicable in all federal courts.

They apply uniformly to all civil cases, whatever the cause of

action or subject matter of the suit. See Fed. R. Civ. P. 1

(“These rules govern the procedure in all civil actions and

proceedings in the United States district courts, except as

stated in Rule 81.”).

The state pleading rules had largely required code, or fact,

pleading, under which pleaders were required to allege very

specifically the factual bases for their claims. By contrast,

under the federal rules a complaint is required only to give the

notice of the claim such that the opposing party may defend

himself or herself effectively. The theory of the federal rules

is that once notice-giving pleadings have been served, the parties are to conduct discovery in order to learn more about the

underlying facts. When they have learned the facts, the parties

can settle or seek judgment. If the case does not settle but the

material facts are clear, the court will grant summary judgment. If material facts are genuinely disputed, the case will go

to trial. That, in any event, is the theory.

In practice, the operation of the federal pleading rules is

more nuanced. In some cases, particularly in complex commercial cases, notice pleading rules give an advantage — perhaps an unfair advantage — to the plaintiff. If a plaintiff can

survive a motion to dismiss on the pleadings in such cases, he

or she can put the defendant to enormous expense in discovery. In practical terms, this means that the settlement value of

a suit jumps substantially the moment the complaint survives

a motion to dismiss. In recognition of this practical reality,

Congress took some aspects of pleading in federal securities

cases out of the federal rules entirely, imposing by statute

something like the old code pleading system, as a way of protecting defendants from some of the settlement pressures that

STARR v. BACA 9815
exist under the Rule 8(a) regime. Private Securities Litigation

Reform Act of 1995 (“PSLRA”), Pub. L. 104-67, 109 Stat.

737, Title I, § 101, codified at 15 U.S.C. § 78u-4(b); see also

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,

313 (2007) (“Exacting pleading requirements are among the

control measures Congress included in the PSLRA. The

PSLRA Act requires plaintiffs to state with particularity both

the facts constituting the alleged violation, and the facts evidencing scienter.”); Zucco Partners, LLC v. Digimarc Corp.,

552 F.3d 981, 990 (9th Cir. 2009) (“All securities fraud complaints since 1995 . . . are subject to the more exacting pleading requirements of the PSLRA, which significantly altered

pleading requirements in securities fraud cases.” (internal

quotation marks omitted)).

In several recent cases, without benefit of statute, the

Supreme Court has applied what appears to be higher pleading standard under Rule 8(a). In Dura Pharmaceuticals, Inc.

v. Broudo, 544 U.S. 336 (2005), the Court dealt with allegations of damage causation in a federal securities case; this

allegation was not covered by the new higher pleading standard imposed by the PSLRA. The Court “assume[d], at least

for argument’s sake, that neither [Rule 8(a)(2)] nor the securities statutes impose any special further requirement in respect

to the pleading of proximate causation or economic loss.” Id.

at 346. After “conced[ing] that ordinary pleading rules are not

meant to impose a great burden upon a plaintiff,” the Court

wrote,

At the same time, allowing a plaintiff to forgo giving

any indication of the economic loss and proximate

cause that the plaintiff has in mind would bring

about harm of the very sort the statutes seek to

avoid. Cf. H. R. Conf. Rep. No. 104-369, p. 31

(1995) . . . (criticizing “abusive” practices including

“the routine filing of lawsuits . . . with only [a] faint

hope that the discovery process might lead to some

plausible cause of action.”). It would permit a plain9816 STARR v. BACA
tiff “with a largely groundless claim to simply take

up the time of a number of other people, with the

right to do so representing an in terrorem increment

of the settlement value, rather than a reasonably

founded hope that the [discovery] process will reveal

relevant evidence.” Blue Chip Stamps [v. Manor

Drug Stores], 421 U.S. [723, 741 (1975].

Id. at 347 (some alterations in original).

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),

plaintiff alleged a violation of Section 1 of the Sherman Act.

Applying the pleading standard of Rule 8(a), the Court wrote

“that an allegation of parallel conduct and a bare assertion of

conspiracy will not suffice,” id. at 556, even though the existence of parallel conduct and a conspiracy would violate Section 1. The Court required more than just notice of the claim.

It required that the claim be plausible. “[W]e hold that stating

such a claim requires a complaint with enough factual matter

(taken as true) to suggest that an agreement was made. Asking

for plausible grounds to infer an agreement does not impose

a probability requirement at the pleading stage; it simply calls

for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” Id.

The Court made clear in Twombly that it was concerned

that lenient pleading standards facilitated abusive antitrust litigation. It provided, with approval, the following citation:

See also Car Carriers, Inc. v. Ford Motor Co., 745

F.2d 1101, 1106 (C.A.7 1984) (“[T]he costs of modern federal antitrust litigation and the increasing

caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a

claim from the events related in the complaint”)[.]

Id. at 558. The Court wrote, further, “Probably, then, it is only

by taking care to require allegations that reach the level sugSTARR v. BACA 9817
gesting conspiracy that we can hope to avoid the potentially

enormous expense of discovery in cases with no ‘reasonably

founded hope that the [discovery] process will reveal relevant

evidence’ to support a § 1 claim. Dura, 544 U.S. at 347.” Id.

at 559-60 (some internal quotation marks omitted). 

Finally, in Iqbal, plaintiff Iqbal, a Muslim American man,

brought a Bivens action alleging deliberate discrimination by

Attorney General Ashcroft and F.B.I. Director Mueller.

Applying Rule 8(a), the Court held that the allegations in

Iqbal’s complaint were insufficient. In the Court’s view, some

of Iqbal’s allegations were “bare assertions” not entitled to the

presumption of truth, and the remaining allegations, even

assumed to be true, did not plausibly suggest an entitlement

to relief.

The Court first identified allegations not entitled to the presumption of truth. Iqbal’s complaint alleged that defendants

“ ‘knew of, condoned, and willfully and maliciously agreed to

subject [him]’ to harsh conditions of confinement ‘as a matter

of policy, solely on account of [his] religion, race, and/or

national origin and for no legitimate penological interest.’ ”

Id. at 1951 (alterations in original). The complaint alleged,

further, that “Ashcroft was the ‘principal architect’ of this

invidious policy, . . . and that Mueller was ‘instrumental’ in

adopting and executing it[.]” Id. The Court held that these

“bare assertions” ”amount[ed] to nothing more than a ‘formulaic recitation of the elements’ ” of the constitutional claim.

Id. (quoting Twombly, 550 U.S. at 555). Their “conclusory

nature . . . disentitle[d] them to the presumption of truth.” Id.

The Court then determined whether the remaining allegations, assumed to be true, “plausibly suggest[ed] an entitlement to relief.” Id. The complaint alleged that the two

defendants had caused the arrest and detention of “thousands

of Arab Muslim men . . . as part of [the government’s] investigation of the events of September 11.” Id. It alleged that the

defendants had “purposefully designat[ed] detainees ‘of high

9818 STARR v. BACA
interest’ because of their race, religion, or national origin.” Id.

The Court held that, assuming these facts to be true, they did

not plausibly suggest Iqbal’s entitlement to relief based on

purposeful racial or religious discrimination because there

was an “ ‘obvious alternative explanation’ ” for these facts.

Id. (quoting Towmbly, 550 U.S. at 567). In the Court’s view,

the obvious alternative explanation was that the “September

11 attacks were perpetrated by 19 Arab Muslim hijackers who

counted themselves members in good standing of al Qaeda, an

Islamic fundamentalist group.” Id. “It should come as no surprise that a legitimate policy directing law enforcement to

arrest and detain individuals because of their suspected link to

the attacks would produce a disparate, incidental impact on

Arab Muslims, even though the purpose of the policy was to

target neither Arabs nor Muslims. On the facts respondent

alleges the arrests Mueller oversaw were likely lawful and

justified by his nondiscriminatory intent to detain aliens who

were illegally present in the United States and who had potential connections to those who committed terrorist acts.” Id.

The Court concluded that this alternative explanation was so

likely to be true that, as between the two explanations, Iqbal’s

explanation was not plausible: “[T]he “purposeful, invidious

discrimination respondent asks us to infer . . . is not a plausible conclusion.” Id. at 1951-52 (emphasis added).

In two cases decided during roughly the same period, the

Court appears to have applied the original, more lenient version of Rule 8(a). In Swierkiewicz v. Sorema N. A., 534 U.S.

506 (2002), the Second Circuit had dismissed plaintiff’s

employment discrimination case for failure to plead facts

establishing a prima facie case of discrimination. The

Supreme Court reversed, writing:

[P]etitioner’s complaint easily satisfies the

requirements of Rule 8(a) because it gives respondent fair notice of the basis for petitioner’s claims.

Petitioner alleged that he had been terminated on

account of his national origin in violation of Title

STARR v. BACA 9819
VII and on account of his age in violation of the

ADEA. His complaint detailed the events leading to

his termination, provided relevant dates, and

included the ages and nationalities of at least some

of the relevant persons involved in his termination.

These allegations give respondent fair notice of what

petitioner’s claims are and the grounds upon which

they rest. . . .

Respondent argues that allowing lawsuits based

on conclusory allegations of discrimination to go

forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits.

Whatever the practical merits of this argument, the

Federal Rules do not contain a heightened pleading

standard for employment discrimination suits. . . .

Rule 8(a) establishes a pleading standard without

regard to whether a claim will succeed on the merits.

“Indeed it may appear on the face of the pleadings

that a recovery is very remote and unlikely but that

is not the test.” Scheuer, 416 U.S., at 236.

Id. at 514-15 (emphasis added) (some citations omitted).

In Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam), the

Tenth Circuit had dismissed an Eighth and Fourteenth

Amendment deliberate indifference claim for failure to satisfy

Rule 8(a). Plaintiff, an inmate in a Colorado state prison, had

“alleged that a liver condition resulting from hepatitis C

required a treatment program that officials had commenced

but then wrongfully terminated, with life-threatening consequences.” Id. at 89-90. The Tenth Circuit deemed the allegations of the complaint “conclusory” and dismissed on the

pleadings. Id. at 90. The Court emphatically disagreed: “The

holding departs in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure that

we grant review.” Id. The Court wrote, “[The complaint]

alleged this medication was withheld ‘shortly after’ petitioner

9820 STARR v. BACA
had commenced a treatment program that would take one

year, that he was ‘still in need of treatment for this disease,’

and that the prison officials were in the meantime refusing to

provide treatment. This alone was enough to satisfy Rule

8(a)(2).” Id. at 94 (citations omitted).

The juxtaposition of Swierkiewicz and Erickson, on the one

hand, and Dura, Twombly, and Iqbal, on the other, is perplexing. Even though the Court stated in all five cases that it was

applying Rule 8(a), it is hard to avoid the conclusion that, in

fact, the Court applied a higher pleading standard in Dura,

Twombly and Iqbal. The Court in Dura and Twombly

appeared concerned that in some complex commercial cases

the usual lenient pleading standard under Rule 8(a) gave too

much settlement leverage to plaintiffs. That is, if a nonspecific complaint was enough to survive a motion to dismiss,

plaintiffs would be able to extract undeservedly high settlements from deep-pocket companies. In Iqbal, by contrast, the

Court was concerned that the usual lenient standard under

Rule 8(a) would provide too little protection for high-level

executive branch officials who allegedly engaged in misconduct in the aftermath of September 11, 2001. To the extent

that we perceive a difference in the application of Rule 8(a)

in the two groups of cases, it is difficult to know in cases that

come before us whether we should apply the more lenient or

the more demanding standard.

[9] But whatever the difference between these cases, we

can at least state the following two principles common to all

of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite

the elements of a cause of action, but must contain sufficient

allegations of underlying facts to give fair notice and to

enable the opposing party to defend itself effectively. Second,

the factual allegations that are taken as true must plausibly

suggest an entitlement to relief, such that it is not unfair to

require the opposing party to be subjected to the expense of

discovery and continued litigation.

STARR v. BACA 9821
3. Evaluation of Starr’s Complaint

Viewed in the light of all of the Supreme Court’s recent

cases, we hold that the allegations of Starr’s complaint satisfy

the standard of Rule 8(a). We do not so hold merely because

Starr’s complaint, like the complaint in Erickson, alleges

deliberate indifference in violation of the Eighth and Fourteenth Amendments. Rather, we so hold because his complaint complies with the two principles just stated.

[10] First, Starr’s complaint makes detailed factual allegations that go well beyond reciting the elements of a claim of

deliberate indifference. These allegations are neither “bald”

nor “conclusory,” and hence are entitled to the presumption

of truth. Iqbal, 129 S. Ct. at 1951. Starr specifically alleges

numerous incidents in which inmates in Los Angeles County

jails have been killed or injured because of the culpable

actions of the subordinates of Sheriff Baca. The complaint

specifically alleges that Sheriff Baca was given notice of all

of these incidents. It specifically alleges, in addition, that

Sheriff Baca was given notice, in several reports, of systematic problems in the county jails under his supervision that

have resulted in these deaths and injuries. Finally, it alleges

that Sheriff Baca did not take action to protect inmates under

his care despite the dangers, created by the actions of his subordinates, of which he had been made aware. These incidents

are sufficiently detailed to give notice to Sheriff Baca of the

nature of Starr’s claim against him and to give him a fair

opportunity to defend against it. They are far from the “bare

assertion” in Iqbal that defendants subjected Iqbal to harsh

conditions of confinement “solely on account” of his “religion, race, and/or national origin.” Id.

[11] Second, the factual allegations in Starr’s complaint

plausibly suggest that Sheriff Baca acquiesced in the unconstitutional conduct of his subordinates, and was thereby deliberately indifferent to the danger posed to Starr. There is no

“obvious alternative explanation,” within the meaning of

9822 STARR v. BACA
Iqbal, for why Sheriff Baca took no action to stop his subordinates’ repeated violations of prisoners’ constitutional rights

despite being repeatedly confronted with those violations,

such that the alternative explanation requires us to conclude

that Starr’s explanation “is not a plausible conclusion.” Iqbal,

129 S.Ct. at 1951, 1952. If there are two alternative explanations, one advanced by defendant and the other advanced by

plaintiff, both of which are plausible, plaintiff’s complaint

survives a motion to dismiss under Rule 12(b)(6). Plaintiff’s

complaint may be dismissed only when defendant’s plausible

alternative explanation is so convincing that plaintiff’s explanation is implausible. The standard at this stage of the litigation is not that plaintiff’s explanation must be true or even

probable. The factual allegations of the complaint need only

“plausibly suggest an entitlement to relief.” Id. at 1951. As

the Court wrote in Twombly, Rule 8(a) “does not impose a

probability requirement at the pleading stage; it simply calls

for enough fact to raise a reasonable expectation that discovery will reveal evidence” to support the allegations. Twombly,

550 U.S. at 556 (emphasis added). Starr’s complaint satisfies

that standard.

Conclusion

[12] We hold that the Supreme Court’s decision in Iqbal

did not alter the substantive requirements for supervisory liability claims in an unconstitutional conditions of confinement

case under the Eighth and Fourteenth Amendments where

deliberate indifference is alleged. We further hold that Starr

has sufficiently alleged under Rule 8(a) a supervisory liability

claim of deliberate indifference against Sheriff Baca. We

therefore reverse the district court’s dismissal of Starr’s claim

against Sheriff Baca and remand for further proceedings.

REVERSED AND REMANDED.

STARR v. BACA 9823
TROTT, Circuit Judge, Dissenting:

I respect my experienced colleagues’ evaluation of Starr’s

final complaint, but my view of it is different. In the main, his

complaint has all the hallmarks of an attempted end run

around the prohibition against using the vicarious liability

doctrine of respondeat superior to get at the boss.

Judge Fletcher accurately describes what Starr must allege

to support an actionable claim of individual supervisory liability for deliberate indifference, but I respectfully disagree that

Starr’s complaint measures up to that standard. Yes, we have

held that “acquiescence or culpable indifference” may suffice

to show that a supervisor “personally played a role in the

alleged constitutional violations,” Menotti v. City of Seattle,

409 F.3d 1113, 1149 (9th Cir. 2005); but simply alleging generally that the Sheriff is “answerable for the prisoner’s safekeeping” doesn’t cut it. Id. Plaintiff’s complaint does nothing

more than allege raw legal conclusions with insufficient facts

to support them. Starr’s complaint runs afoul of our Circuit’s

rule that to establish a claim for individual supervisory liability, a plaintiff must allege facts, not simply conclusions; and

those facts must show that the individual sued was personally

involved in the alleged deprivation of the plaintiff’s civil

rights. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998). Otherwise, the action fails for failure to state a viable

claim. Id. Even if Judge Fletcher is correct that “supervisory

liability” survives Iqbal, a plaintiff must still allege facts to

get into court.

Here, I pause for a moment to underscore and to highlight

a critical aspect of the causation aspect of this issue that too

often is lost in the undertow of the jailhouse activities of

which the plaintiff complains: this part of Starr’s case is a

claim not under Monell for an actionable governmental policy

or custom or practice, but a claim for individual responsibility

— not agency or department or political unit responsibility,

but individual responsibility. It follows as night the day that

9824 STARR v. BACA
the individual under scrutiny must have personally engaged in

identifiably actionable behavior, even with respect to a claim

of deliberate indifference. As Judge Wu correctly explained,

A supervisor may be liable if there exists either “(1)

his or her personal involvement in the constitutional

deprivation, or (2) a sufficient causal connection

between the supervisor’s wrongful conduct and the

constitutional violation.” . . . As the Ninth Circuit

explained in Redman v. County of San Diego, 942

F.2d 1435, 1446-47 (9th Cir. 1991):

This latter liability is not a form of vicarious liability. Rather, it is direct liability.

Under direct liability, plaintiff must show

the supervisor breached a duty to plaintiff

which was the proximate cause of the

injury. The law clearly allows actions

against supervisors under section 1983 as

long as a sufficient causal connection is

present and the plaintiff was deprived under

color of law of a federally secured right.

“The requisite causal connection can be

established . . . by setting in motion a series

of acts by others which the actor knows or

reasonably should know would cause others

to inflict the constitutional injury.” Johnson

v. Duffy, 588 F.2d 740, 743-44 (9th Cir.

1978).

We are evaluating Starr’s revised third amended complaint.

The district court gave him multiple opportunities factually to

amend to articulate the Sheriff’s personal involvement in this

matter. In particular, the court requested on November 6,

2006, that Starr “state precisely the basis for the claims as to

defendant L. Baca in the [anticipated] revised third amended

complaint.” In response, Starr alleged only more conclusions

and vague and insufficient allegations that the Sheriff (1)

STARR v. BACA 9825
“knew or reasonably could have known,” (2) “knew or reasonably should have known,” and (3) was “aware or should

have become aware” of the jail conditions of which Starr

complains. He sums up his boilerplate allegations with a statement that the Sheriff is liable because he had either “personal

knowledge or constructive knowledge” of all these conditions.

Alleging that the Sheriff “could” have known, “should” have

known, and “should” have become aware is tantamount to

admitting that Starr had no facts to support his allegations.

The test that governs this case consists of two words, not one.

Indifference is not enough. For indifference to be actionable,

it must be deliberate. Starr’s conclusory allegations amount to

no more than formulaic flak fired into the sky in an attempt

to bring down the squadron leader.

When we cease to look at the Los Angeles Sheriff’s

Department (LASD) as an abstraction and look at the reality,

we see good reasons for requiring facts before permitting lawsuits against the Sheriff himself: the agency is gigantic. The

LASD is the largest Sheriff’s Department in the world. It covers 3,171 square miles, 2,557,754 residents, and by contract

42 of the 88 incorporated cities in Los Angeles County. The

Department employs 8,400 law enforcement officers and

7,600 civilians and is responsible for 48 courthouses and 23

substations. The Men’s Central Jail alone houses a revolving

population of 5,000 inmates. In addition, the Department

operates the Twin Towers Correctional Facility, the Mira

Loma Detention Facility, the Pitchess Detention Center, and

the North County Correctional Center. Persons charged with

or convicted of crimes are in over one hundred different locations. The layers of administration and management between

what happens in a jail are many and they are complex. To

infer that specific incidents which occur in a jail are necessarily known by the Sheriff is to engage in fallacious logic.

This complexity does not absolve the Department of

responsibility for respecting the constitutional rights and general well-being of its charges, but it does show how inappro9826 STARR v. BACA
priate it is to sue the Sheriff individually unless in terms of

causation the Sheriff can be personally tied to the actionable

behavior at issue. Just being a disappointing or even an insufficiently engaged public servant is not enough. Those issues

are for the ballot box and the County Board of Supervisors,

not the courts.

Judge Wu was clear and correct in his articulation of the

complaint’s deficiencies:

What you need to do is state precisely what it is

that you are claiming other than he’s the general

supervisor of the jail facility, and therefore, he can

be sued individually if anything bad happens,

because bad things have happened in the past at the

jail. It has to be something more than that to give rise

to a claim. That’s what I want. I want you to state

what precisely it is that he supposedly did wrong,

and if it’s a failure to supervise it can’t be just a general failure of supervision. It has to be something

that is specific. That’s what I want.

Earlier in the same hearing, Starr’s counsel said this, which

is equally indicative of no facts, just “theory:”

MR. PAZ: Your Honor, let me give you an analogy, Your Honor. All I can do is put it

on the record and try to explain to the

court the theory.

It’s no different than if we had the head

of a hospital, and a surgeon five floors

down below is killing people on a regular basis. If the head of the hospital

doesn’t act, then they will be liable.

Another concession appeared when counsel said, “We’re still

at the pleading stage where we are just saying do we have a

right to go to Mr. Baca and do discovery and try to prove our

STARR v. BACA 9827
case.” Counsel’s statement here collides with what the

Supreme Court said in Ashcroft v. Iqbal, ___ U.S. ___, 129

S.Ct. 1937 (2009): “Rule 8 . . . does not unlock the doors for

a plaintiff armed with nothing more than conclusions.” Id. at

1949-50.

Sadly, bad things routinely happen in the best of jails. The

same is true of hospitals, armies, churches, nursing homes,

synagogues, boy scout troops, and legislatures. To attach personal legal liability to the leaders of these organizations, however, requires much more than, ‘Well, she must have known

and must have been deliberately indifferent, because after all,

it happened on her watch.’

Accordingly, although we review this issue de novo, I

agree with Judge Wu’s end-of-the-process conclusion:

The TAC [Third Amended Complaint], as compared

to previous pleadings, adds no new allegations which

adequately identifies [sic] the precise nature of

Baca’s misfeasance or nonfeasance or which establishes a sufficient causal link between Baca’s actions

or inaction and the alleged violation of plaintiff’s

constitutional rights.

Nor does Plaintiff’s opposition memorandum

point to any language in the TAC which demonstrates such a causal connection. Plaintiff does not

allege that Baca himself directly participated in any

way in the January 27, 2006 incident or that he was

involved in any review or investigation of it. Likewise, Plaintiff has not cited to any specific policy

implemented by Baca which was the “moving force

[in] the constitutional violation.” Plaintiff simply

argues that he “has amply satisfied the second

‘causal connection’ prong by alleging facts which

put Baca on notice of ongoing unconstitutional conduct of his subordinates.” However, the mere fact

9828 STARR v. BACA
that Baca may have known about prior incidents

[that] allegedly occurred in the jail does not show

that Baca has implemented a policy that is tantamount to a repudiation of constitutional rights.

Judge Fletcher’s Opinion, with all respect, is difficult to

reconcile with Iqbal. I extract portions of the Iqbal Opinion

to illustrate my point:

The allegations against petitioners are the only

ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national

origin, in contravention of the First and Fifth

Amendments to the Constitution. The complaint

alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of

Arab Muslim men . . . as part of its investigation of

the events of September 11.” It further alleges that

“[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement

until they were ‘cleared’ by the FBI was approved

by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.”

Lastly, the complaint posits that petitioners “each

knew of, condoned, and willfully and maliciously

agreed to subject” respondent to harsh conditions of

confinement “as a matter of policy, solely on

account of [his] religion, race, and/or national origin

and for no legitimate penological interest.” The

pleading names Ashcroft as the “principal architect”

of the policy, and identifies Mueller as “instrumental

in [its] adoption, promulgation, and implementation.”

Id. at 1944 (internal citations omitted) (alterations and omissions in original).

STARR v. BACA 9829
Respondent [Iqbal] . . . argues that, under a theory

of “supervisory liability,” petitioners can be liable

for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say,

respondent believes a supervisor’s mere knowledge

of his subordinate’s discriminatory purpose 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 petitioners 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. 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 Bivens liability on

the subordinate for unconstitutional discriminations;

the same holds true for an official charged with violations arising from his or her superintendent

responsibilities.

Id. at 1949 (emphasis added) (internal citation omitted).

Two working principles underlie our decision in

[Bell Atlantic Corp. v.] Twombly [550 U.S. 544

(2007)]. First, the tenet that a court must accept as

true all of the allegations contained in a complaint is

inapplicable to legal conclusions. Thread-bare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice. Id., at

555, 127 S. Ct. 1995 (Although for the purposes of

a motion to dismiss we must take all of the factual

allegations in the complaint as true, we “are not

9830 STARR v. BACA
bound to accept as true a legal conclusion couched

as a factual allegation” (internal quotation marks

omitted)). Rule 8 marks a notable and generous

departure from the hyper-technical, code-pleading

regime of a prior era, but it does not unlock the doors

of discovery for a plaintiff armed with nothing more

than conclusions. Second, only a complaint that

states a plausible claim for relief survives a motion

to dismiss. Determining whether a complaint states

a plausible claim for relief will, as the Court of

Appeals observed, be a context-specific task that

requires the reviewing court to draw on its judicial

experience and common sense. But where the wellpleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-”that the

pleader is entitled to relief.” Fed. Rule Civ. Proc.

8(a)(2).

Id. at 1949-50 (emphasis added) (internal citations omitted)

(second alteration in original).

We begin our analysis by identifying the allegations in the complaint that are not entitled to the

assumption of truth. Respondent pleads that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions

of confinement “as a matter of policy, solely on

account of [his] religion, race, and/or national origin

and for no legitimate penological interest.” The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, and that Mueller was

“instrumental” in adopting and executing it. These

bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a

“formulaic recitation of the elements” of a constitutional discrimination claim, namely, that petitioners

adopted a policy “ ‘because of,’ not merely ‘in spite

STARR v. BACA 9831
of,’ its adverse effects upon an identifiable group.”

As such, the allegations are conclusory and not entitled to be assumed true. To be clear, we do not reject

these bald allegations on the ground that they are

unrealistic or nonsensical. We do not so characterize

them any more than the Court in Twombly rejected

the plaintiffs’ express allegation of a “ ‘contract,

combination or conspiracy to prevent competitive

entry,’ ” because it thought that claim too chimerical

to be maintained. It is the conclusory nature of

respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the

presumption of truth.

Id. at 1951 (emphasis added) (internal citations omitted)

(alterations in original).

Although Iqbal puts considerable meat on this wise rule’s

bones, it is not new. In 1988, for example, we said in Taylor

v. List, a failed lawsuit against Nevada’s Attorney General

and the Director of the Nevada State Prison alleging their

“knowledge of and failure to prevent the alleged constitutional violations by their subordinates,” the following:

Liability under section 1983 arises only upon a

showing of personal participation by the defendant.

A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the

violations and failed to act to prevent them.

880 F.2d 1040, 1043, 1045 (9th Cir. 1988) (emphasis added)

(internal citation omitted).

The days of pleading conclusions without factual support

accompanied by the wishful hope of finding something juicy

during discovery are over. Wisely, we have moved up judg9832 STARR v. BACA
ment day to the complaint stage rather than bog down the

courts and parties with pre-summary judgment combat.

This conclusion, of course, does not leave Starr without

redress. He may sue the Sheriff in his official capacity, which

is the same as suing the County of Los Angeles and the Sheriff’s Department, and he may pursue his lawsuit on the

ground of official policy or longstanding custom and practice

— but he may not sue the Sheriff individually just because he

is the Sheriff. See Pembaur v. City of Cincinnati, 475 U.S.

469, 478 (1986); Community House, Inc. v. City of Boise, 623

F.3d 945, 973 (9th Cir. 2010). The district court clearly understands this distinction:

In other words, any time anything goes wrong of

any sort Baca gets blamed and he can be individually

liable as opposed to being liable [in his official

capacity] as the agent of the county. I can understand

that claim. There is no problem with that one, but

you are suing him on an individual basis.

Given the amount of time and effort already devoted to trying to get the Sheriff into this case, I seriously doubt any additional facts will come forward. Thus, the next step is summary

judgment. So be it.

Accordingly, I respectfully dissent.

STARR v. BACA 9833