PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 12-3074

______

KAREN BARKES, as administratrix

of the Estate of Christopher Barkes;

ALEXANDRA BARKES; BRITTANY BARKES

v.

FIRST CORRECTIONAL MEDICAL, INC.;

STANLEY TAYLOR; RAPHAEL WILLIAMS;

CERTAIN UNKNOWN INDIVIDUAL EMPLOYEES

OF THE STATE OF DELAWARE DEPARTMENT OF 

CORRECTIONS;

CERTAIN UNKNOWN INDIVIDUAL EMPLOYEES

OF FIRST CORRECTIONAL MEDICAL, INC.;

STATE OF DELAWARE DEPARTMENT OF 

CORRECTIONS

Stanley Taylor and Raphael Williams,
2

Appellants

______

On Appeal from the United States District Court

for the District of Delaware

(District of Delaware Civil No. 1-06-cv-00104)

District Judge: Honorable Leonard P. Stark

______

Argued September 24, 2013

Before: AMBRO, FISHER and HARDIMAN, Circuit Judges

(Filed: September 5, 2014)

Catherine C. Damavandi (ARGUED)

Marc P. Niedzielski

Delaware Department of Justice

820 North French Street

Carvel Office Building, 6th Floor

Wilmington, DE 19801
3

Counsel for Appellants

Jeffrey K. Martin (ARGUED)

Martin & Associates

1508 Pennsylvania Avenue

Suite 1C

Wilmington, DE 19806

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

In this appeal, we consider whether two prison 

administrators are entitled to qualified immunity from an 

Eighth Amendment claim that serious deficiencies in the 

provision of medical care by a private, third-party provider 

resulted in an inmate’s suicide. We agree with the District 

Court that they are not. For reasons to be discussed, we will 

affirm.
4

I.1

A.

Plaintiff-Appellees Karen Barkes, Alexandra Barkes, 

and Brittany Barkes (collectively, “Appellees”) are the widow 

and children, respectively, of decedent Christopher Barkes 

(“Barkes”).2 Barkes committed suicide on November 14, 

2004, while being held at the Howard R. Young Correctional 

Institution (“HRYCI”) in Wilmington, Delaware, awaiting 

transportation to the Violation of Probation Center in Sussex 

County, Delaware. He had been arrested the previous day on 

an administrative warrant. Barkes was on probation for a 

March 2004 domestic abuse conviction, and had been arrested 

for loitering while waiting to purchase drugs. Appellees filed 

suit against then-Delaware Commissioner of Correction 

Stanley Taylor, then-Warden of HRYCI Raphael Williams, 

the Delaware Department of Corrections (“DOC”), and the 

third-party vendor providing medical services in HRYCI, 

First Correctional Medical, Inc. (“FCM”). Appellants here 

are Taylor and Williams.

Barkes was a troubled man with a long history of 

mental health and substance abuse problems. On March 15, 

1997, Barkes killed two people in a car accident while driving 

drunk. He pleaded guilty to two counts of second-degree 

vehicular homicide. Seven months after the accident, on 

 

1 Because we are reviewing the District Court’s denial of 

summary judgment on the grounds of qualified immunity, we 

view all disputed facts in the light most favorable to the party 

claiming injury. Wright v. City of Phila., 509 F.3d 595, 597 

n.1, 599 (3d Cir. 2005).

2 Karen Barkes appears both in her individual capacity and as 

administrator of Barkes’s estate.
5

October 31, 1997, Barkes attempted suicide while 

incarcerated by ingesting an overdose of pills that he had 

apparently stockpiled. He was incarcerated at HRYCI (also 

known as Gander Hill Prison), the same facility at which he 

would eventually commit suicide in 2004. 

Barkes served two and a half years in prison, during 

which time he completed a substance abuse program. He 

stayed sober for approximately four years before relapsing in 

December 2003. He entered the Recovery Center for 

Delaware on December 15, 2003, but could stay for only one 

week because of limited funding from his insurance provider. 

On December 21, 2003, police responded to a reported 

domestic altercation at Barkes’s home. After police placed 

him in handcuffs, he became unconscious and unresponsive. 

Paramedics were called, who opened Barkes’s airways, 

provided oxygen, and administered drugs to counteract a 

suspected heroin overdose. Barkes admitted – and the 

toxicology report in his medical records confirms – that he 

consumed one and a half pints of vodka and a “bag” of 

heroin, quantity unspecified. He later characterized this 

overdose as a suicide attempt.

Shortly before the December 2003 relapse, Barkes 

checked himself into the Rockford Center in Wilmington, 

Delaware, where he was diagnosed with post-traumatic stress 

disorder. David Becker, Barkes’s probation officer at the 

time, opined that Barkes was “[n]ot only . . . a threat to the 

community, he is also a threat to himself,” in a “violation 

report” dated February 3, 2004. JA at 296.

On September 10, 2004, sixty-five days before his 

death, Barkes attempted to kill himself twice in one day. 

During an afternoon house visit by a probation officer, Barkes 

was found asleep on top of a bottle of gin. He appeared to be 
6

extremely intoxicated – he apparently could not recall who he 

was – and the officer arrested Barkes. Two hours after his 

arrest, Barkes had a blood alcohol content (“BAC”) of .222. 

Because of his high BAC the officers took Barkes to a 

hospital, where he admitted to a nurse that he had also 

consumed forty Tylenol tablets. While being treated, Barkes 

attempted to kill himself by wrapping an IV cord around his 

neck. Both incidents were recorded in his probation file.

Barkes received a new probation officer shortly before 

his death. In notes dated November 9, 2004 – five days 

before he died – the officer indicated her awareness that 

Barkes suffered from bipolar disorder, attended one therapy 

session and six Alcoholics Anonymous meetings each week, 

and took four medications for his bipolar condition and other 

mental health problems. The notes also acknowledged three 

individuals – the record suggests that they were therapists, 

counselors, and/or social workers – whom Barkes was 

currently seeing. 

Barkes was arrested on November 13, 2004 for 

violating his probation. At approximately 3:00 p.m. that day, 

he underwent a medical intake/screening procedure at HRYCI 

conducted by a licensed practical nurse (“LPN”) who was 

employed by FCM, a private contractor hired to provide 

medical services in the prison. The intake procedure included 

a form containing questions about Barkes’s mental health, 

including questions about suicidal ideation. Barkes indicated 

on the form that he had attempted suicide in 2003 but did not 

include the 1997 attempt or the two attempts in September 

2004. He stated that he had no current suicidal ideation.

The intake procedure also screened for seventeen 

suicide risk factors. If the inmate checked eight or more 

factors on a form, or if certain other serious risk factors were 
7

present (for example, the arresting officer expressed concern 

that the inmate was a suicide risk), the on-call physician was 

to be notified and suicide prevention measures initiated. 

Barkes answered yes to two of the questions: (1) that he had a

psychiatric history; and (2) that he had previously attempted 

suicide. The LPN completed a standard medical intake form, 

which included questions as to whether Barkes showed signs 

of “altered mental status . . . or abnormal conduct.” JA at 71. 

The LPN indicated “no” to both. Barkes also denied having a 

history of drug abuse. The LPN referred Barkes to mental 

health services on a “routine” urgency level, based on his 

psychiatric history and the 2003 suicide attempt. 

Barkes was placed alone in a cell in the booking and 

receiving area. At some point during the evening of 

November 13, Barkes called his wife Karen. According to 

Karen, Barkes told her that he “can’t live this way anymore,” 

and said that he was going to kill himself. JA at 2, 72. It is 

undisputed that Karen did not inform the DOC of Barkes’s 

stated intent.

Shortly before 4:00 a.m. on November 14th, in an 

unrelated incident, another inmate at HRYCI was transferred 

to the infirmary from his cell and placed on Psychiatric Close 

Observation, Level II (“PCO II”). Patients placed on PCO II 

are given a “suicide gown” and are checked every 15 minutes 

by staff. Appellants’ Br. at 10 (citing Lamb v. Taylor, No. 

08-324, 2011 WL 4006586, at *2 n.1 (D. Del. Sept. 8, 2011) 

(describing medical care at HRYCI in the context of another 

lawsuit arising out of a prison suicide)). 

At 8:00 a.m. on the 14th, Barkes ate breakfast alone in 

his cell. Correctional officers observed him lying awake on 

his bed at 10:45, 10:50, and 11:00 a.m., and none recalled 

anything unusual about him or any indication that he was 
8

suicidal. At 11:35 a.m., when an officer arrived at his cell to 

deliver his lunch, Barkes was hanging by a sheet from a steel 

partition. Medical staff responded and Barkes was taken to a 

hospital, but attempts to resuscitate him were unsuccessful.

B.

FCM entered into a Health Care Services Contract 

with DOC on June 17, 2002, and was the contracted medical 

provider at HRYCI at the time of Barkes’s suicide. In that 

role it was responsible for inmate intake and medical 

screening. The DOC reviewed FCM’s performance in 

monthly Medical Review Committee (“MRC”) meetings, 

overseen by DOC Bureau Chief of Management Services 

Joyce Talley. Talley was the DOC’s appointed representative 

for administering the contract with FCM. See Del. Code 

Ann. tit. 11, § 6517(13) (currently codified at Del. Code Ann. 

tit. 11, § 6517(12)) (requiring that the Commissioner of 

Correction “[a]dminister[] the medical/treatment services 

contract, or appoint[] a designee to administer the 

medical/treatment contract”). 

As Chief of the DOC Bureau of Management Services, 

Talley had many responsibilities. She testified that her areas 

of oversight responsibility included “fiscal, payroll, 

budgeting, food services for the inmates, health care for the 

inmates, substance abuse for the inmates, management 

information systems, purchasing and warehousing, facilities 

maintenance and construction.” JA at 364-65. She further 

testified that, in each of these areas except for health care, she

relied on a “key manager [to do] the day-to-day” oversight. 

JA at 366. The “key manager” was an official within the 

DOC, but with respect to health care services Talley relied on 

FCM and the MRC, testifying that she did not make any 

assessments regarding FCM’s job performance and that no 
9

individual working within the DOC “had the knowledge or 

the background . . . [to] go out to see if the medical care was 

provided.” JA at 367. 

The contract outlined standards of care to which FCM 

must adhere. To the extent that the health care standards of 

the American Correctional Association and the National 

Commission on Correctional Health Care (“NCCHC”) 

differed, FCM was to adhere to the higher standard. Taylor 

testified that he believed that ensuring FCM “deliver[ed] 

health care in accordance with NCCHC standards” was 

sufficient to meet his responsibility to deliver health care to 

the inmate population. JA at 51. Williams testified that he 

had a responsibility to ensure that HRYCI was in compliance 

with NCCHC standards, but that he believed he had no 

personal responsibility to ensure FCM’s compliance. JA at 

55. Talley also testified that she did not believe it to be her 

responsibility to ensure FCM’s compliance with NCCHC 

standards. JA at 368 (“Q: Did you believe that it was your 

responsibility when you served in that role as bureau chief 

that you reviewed the compliance with the standards set forth 

by NCCHC? A: No.”).

In 1997, NCCHC published standards for use by 

correctional facilities to screen inmates for physical and 

mental health problems during the intake process. These 

standards included a variety of forms to be completed by 

medical intake staff. The NCCHC altered its standards in 

2003, doing away with the forms and instead instituting a 

narrative recommendation of various mental health warning 

signs of which all prison staff should be aware and vigilant. 

Though FCM appears to have been relying on the outdated 

1997 forms in 2004 when Barkes was incarcerated, NCCHC 

accredited HRYCI approximately one year before Barkes’s 

suicide. However, part of Appellees’ theory of liability is that 
10

not only did FCM fail to implement the newer guidelines as 

required by its contract, it failed to properly implement the 

1997 NCCHC standards. Therefore, it is necessary to discuss 

the 1997 NCCHC standards for suicide assessment in some 

detail.

The 1997 NCCHC guidelines provided a number of 

sample intake forms covering general physical and mental 

health questions.3 These included a suicide-specific 

assessment form that asked questions regarding past and 

current suicidal ideation, mental health treatment, and recent 

emotional trauma. JA at 310. There was also a mental health 

screening form that was to be filled out by the intake staff 

member. The mental health form instructed the screener to 

ask the inmate, in pertinent part: “Have you ever felt so bad, 

so depressed, that you tried to take your own life?”; and 

“Have you ever taken medication for emotional problems, for 

mental illness, or for ‘nerves?’” JA at 313. The following 

page of the standards provided criteria for referring an inmate 

to a mental health professional based on answers given in the 

mental health screening form, which stated:

Refer an inmate to mental health staff for 

assessment if the inmate gives a “Yes” response 

to ANY question. There are no exceptions to 

this procedure.

 

3

For example, the first two questions on the general intake 

screening form are: “Was inmate a medical, mental health or 

suicide risk during any prior contact or confinement with 

department?”; and “Do you believe the inmate is a medical, 

mental health or suicide risk now?” JA at 309. That form 

also allows the screener to record behavioral observations 

about the inmate and whether they suffer from health 

problems such as heart disease or epilepsy. 
11

If the inmate gives an affirmative response to 

question 9,[4] make an immediate referral to 

mental health staff and make sure continuous 

“eyes on” supervision is provided until seen by 

the mental health staff.

Remember, this screening inventory IS NOT 

your only guide for referral to mental health 

services. Even if there are all “no” answers, 

you may still refer the inmate:

 if you suspect that, in spite of the 

answers, this inmate is experiencing 

some emotional difficulties;

 if you need additional mental health 

information on an inmate prior to 

classification;

 or for reasons not listed here 

JA at 314 (emphasis in original). 

The 1997 guidelines provided sample protocols to be 

administered by a qualified mental health professional if the 

inmate’s intake screening triggered referral. JA at 322. The 

guidelines explicitly required the protocols to be administered 

by a mental health professional. 

Appellees claim, however, that FCM failed to comply 

with the 1997 NCCHC standards. They argue that the suicide 

screening form that FCM administered corresponded to the 

screening form to be used by a mental health professional, but 

that FCM allowed the form to be administered by an 

unqualified LPN rather than a qualified mental health 

 

4 Question 9 inquired whether the inmate was currently 

considering killing himself.
12

professional, as required under NCCHC guidelines. To put it 

simply, Appellees claim that, if FCM had been in compliance 

with NCCHC standards, Barkes’s “yes” answer to the 

question “Have you ever attempted suicide?” and his 

identification of his psychiatric medication would have 

triggered a referral to a mental health professional. The 

professional in turn would have instituted increased suicide 

prevention procedures, thus preventing Barkes’s death.

In deposition testimony, Appellants acknowledged that 

they were aware of the deteriorating quality of FCM’s 

provision of medical services. Williams admitted that FCM’s 

performance had degraded significantly and that he was 

aware FCM may not have been fulfilling its contractual 

obligations. JA at 792. He was aware of significant 

backlogs, that FCM may have been intentionally shortstaffing to save money, and that inmate complaints had 

increased. JA at 792-93. Taylor testified that his 

responsibility as Commissioner of Correction was to “provide 

health care delivery to the offender population comparable to 

that available in the community.” JA at 799. He 

acknowledged that in the period of 2003-2007 audits 

conducted by the NCCHC had identified deficiencies in 

healthcare provision in the Delaware prison system. He also 

suspected that FCM was intentionally leaving positions 

vacant in order to save money rather than simply having 

difficulty recruiting and retaining staff. Minutes from a 

meeting of the MRC on June 17, 2004, at which Williams 

was present, indicate ongoing problems with the DOC’s 

document management computer system, called “DACS,” 

including that the medical unit at HRYCI was “not putting 

information into DACS consistently for medical grievances.” 

JA at 809. Talley indicated that FCM was “beyond the 

borderline of not being in compliance with the contract” and 
13

that the MRC would issue a letter of non-compliance at the 

next meeting if problems with the computer system were not 

resolved by then. Id. Minutes from the MRC’s August 26, 

2004 meeting indicate that FCM remained non-compliant 

with respect to implementing the DACS system, and that this 

issue was to be brought to Taylor’s attention. In May 2005, 

Taylor wrote a letter to FCM indicating that the DOC would 

be terminating the contract, citing among his reasons “the 

serious deficiencies in the delivery of health care outlined in 

the National Commission on Correctional Health Care 

(NCCHC) audit report dated February 28, 2005.” JA at 788.

C.

On February 16, 2006, Appellees filed a complaint 

pursuant to 42 U.S.C. § 1983 in the United States District 

Court for the District of Delaware. 

Appellees asserted against Taylor and Williams an 

Eighth Amendment claim based on deliberate indifference to 

Barkes’s serious medical needs, an Eighth Amendment claim 

based on a failure to train/wrongful customs, practices, and 

policies, and a state law wrongful death claim. On February 

27, 2008, the District Court granted summary judgment to 

Appellants. Appellees filed an appeal, see Barkes v. First 

Correctional Medical, Inc., No. 08-2280 (docketed May 7, 

2008), which we dismissed per stipulation of the parties on 

July 9, 2008.

On May 21, 2008, while the first appeal was pending, 

the District Court held a show cause hearing on Appellees’ 

motion for default judgment against FCM. At that hearing, 

the Court granted the motion and granted Appellees leave to 

amend. They filed a first amended complaint on June 13, 

2008, which Appellants moved to strike on the basis that it 
14

reasserted claims upon which they had already prevailed on 

summary judgment. The Court granted the motion to strike 

on March 30, 2009, but permitted Appellees to file a second 

amended complaint against Appellants provided that it did 

not assert any claims from the previous complaint. Appellees 

filed a second amended complaint on April 9, 2009, which 

was eventually dismissed.5 Appellees were permitted to file a 

third amended complaint only to add an Eighth Amendment 

failure-to-supervise claim, which was filed on April 22, 2010. 

Appellants moved to dismiss the third amended complaint on 

May 6, 2010, and the District Court denied the motion.

On February 27, 2012, the parties filed cross-motions 

for summary judgment. It was then that Appellants asserted 

 

5

It appears that the first amended complaint was filed in the 

District Court before we had dismissed Appellees’ appeal, 

which we dismissed while the motion to strike was pending. 

In the briefing on the motion to strike, the parties discussed 

the then-pending appeal only to acknowledge that it was 

premature because claims remained against FCM in the 

District Court. No party has raised before us now, and we 

therefore do not consider, whether the District Court was 

without jurisdiction to grant Appellees leave to file the first 

amended complaint. See Bensalem Twp. v. Int’l Surplus 

Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) (noting the 

general rule that the filing of an appeal divests a district court 

of jurisdiction, but with the exception that “a premature 

notice of appeal does not”) (internal quotation marks and 

citation omitted). If any error existed, it was mooted when 

the District Court struck the first amended complaint and 

granted leave to file a second amended complaint.
15

qualified immunity in a motion for the first time.6 The 

District Court denied both motions for summary judgment, 

and Appellants filed this appeal pursuant to the collateral 

order doctrine. 

II.

The district court had jurisdiction pursuant to 28 

U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 

28 U.S.C. § 1291 and the collateral order doctrine. The 

collateral order doctrine allows us to review an interlocutory 

order “as a ‘final decision’ if it: ‘(1) conclusively 

determine[s] the disputed question, (2) resolve[s] an 

important issue completely separate from the merits of the 

action, and (3) [is] effectively unreviewable on appeal from a 

final judgment.’” Blaylock v. City of Phila., 504 F.3d 405, 

408 (3d Cir. 2007) (alterations in original) (quoting Johnson 

v. Jones, 515 U.S. 304, 310 (1995)). It is well-established 

 

6

Though it is undisputed that Appellants raised qualified 

immunity in their answer to the third amended complaint, see

JA at 210, Appellees devote a substantial portion of their brief 

to a discussion of Appellants’ failure to assert the defense 

until so late in this litigation. In their briefs, they do not 

suggest that this is of any legal significance – that Appellants 

waived the defense, for instance – but only that it is 

supposedly “revelatory of [Appellants’] mindset” regarding 

the merits of their qualified immunity argument. Appellees’ 

Br. at 22. At oral argument, counsel for Appellees went a 

step further and asked that we find waiver of qualified 

immunity. Because Appellants asserted qualified immunity 

in their answer, waiver is inappropriate, and whether or not 

they exhibit confidence in their assertion of qualified 

immunity is of no relevance to this appeal. See Cetel v. 

Kirwan Fin. Grp., 460 F.3d 494, 506 (3d Cir. 2006).
16

that orders denying qualified immunity at summary judgment 

are reviewable under the collateral order doctrine “to the 

extent that denial turns on questions of law.” Bayer v. 

Monroe Cnty. Children and Youth Serv., 577 F.3d 186, 191 

(3d Cir. 2009)); see also Wright v. City of Phila., 409 F.3d 

595, 599 (3d Cir. 2005) (“Despite the interlocutory nature of 

qualified immunity rulings, they are reviewable on appeal 

where the dispute does not turn upon which facts the parties 

might be able to prove, but, rather, whether or not certain 

facts showed a violation of ‘clearly established’ law.” 

(internal quotation marks and citation omitted)). 

“On an appeal from a grant or denial of summary 

judgment, our review is plenary and we apply the same test 

the district court should have utilized initially.” Giles v. 

Kearney, 571 F.3d 318, 322 (3d Cir. 2009). A court may 

grant summary judgment only when the record “shows that 

there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). The issue of qualified immunity is generally a 

question of law, but a genuine dispute of material fact will 

preclude summary judgment on qualified immunity. Giles, 

571 F.3d at 326. 

III.

A.

1.

Before discussing the District Court’s qualified 

immunity analysis, it is necessary first to consider whether 

and to what extent our precedent on supervisory liability in 

the Eighth Amendment context was altered by the Supreme 

Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009). 

Though we have in the past declined “to wade into the 

muddied waters of post-Iqbal ‘supervisory liability,’” 
17

Bistrian v. Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012); see 

also Argueta v. U.S. Immigration and Customs Enforcement, 

643 F.3d 60, 69-70 (3d Cir. 2011), we find it appropriate to 

do so now.

Section 1983 provides a cause of action against “every 

person who,” under color of state law, “subjects, or causes to 

be subjected,” another person to a deprivation of a federally 

protected right. 42 U.S.C. § 1983. It is well-recognized that 

“[g]overnment officials may not be held liable for the 

unconstitutional conduct of their subordinates under a theory 

of respondeat superior.” Bistrian, 696 F.3d at 366 (alteration 

in original) (quoting Iqbal, 556 U.S. at 676). Rather, state 

actors are liable only for their own unconstitutional conduct. 

Id. With this principle in mind, we have previously identified 

two general ways in which a supervisor-defendant may be 

liable for unconstitutional acts undertaken by subordinates. 

First, liability may attach if they, “with deliberate indifference 

to the consequences, established and maintained a policy, 

practice or custom which directly caused [the] constitutional 

harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. 

Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) 

(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 

725 (3d Cir. 1989)). Second, “a supervisor may be personally 

liable under § 1983 if he or she participated in violating the 

plaintiff’s rights, directed others to violate them, or, as the 

person in charge, had knowledge of and acquiesced” in the 

subordinate’s unconstitutional conduct. Id. (citing Baker v.

Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). 

“Failure to” claims – failure to train, failure to discipline, or, 

as is the case here, failure to supervise – are generally 

considered a subcategory of policy or practice liability. See

Rosalie Berger Levinson, Who Will Supervise the 

Supervisors? Establishing Liability for Failure to Train, 
18

Supervise, or Discipline Subordinates in a PostIqbal/Connick World, 47 Harv. C.R.-C.L. L. Rev. 273, 280 

(2012).

In Sample v. Diecks, we recognized that “‘supervision’ 

entails, among other things, training, defining expected 

performance by promulgating rules or otherwise, monitoring 

adherence to performance standards, and responding to 

unacceptable performance whether through individualized 

discipline or further rulemaking.” 885 F.2d 1099, 1116 (3d 

Cir. 1989). Sample involved an Eighth Amendment claim 

against a supervisor for implementing deficient policies and 

being deliberately indifferent to the risk that the policies 

would result in the deprivation of a constitutional right. Id.; 

see also Beers-Capitol v. Whetzel, 256 F.3d 120, 133-34 (3d 

Cir. 2001) (discussing Sample). We developed a four-part 

test for determining whether an official may be held liable on 

a claim for a failure to supervise. The plaintiff must identify 

a supervisory policy or practice that the supervisor failed to 

employ, and then prove that: (1) the policy or procedures in 

effect at the time of the alleged injury created an 

unreasonable risk of a constitutional violation; (2) the 

defendant-official was aware that the policy created an 

unreasonable risk; (3) the defendant was indifferent to that 

risk; and (4) the constitutional injury was caused by the 

failure to implement the supervisory practice or procedure. 

Sample, 256 F.3d at 1118; Brown v. Muhlenberg Twp., 269 

F.3d 205 (3d Cir. 2001). In this Circuit, when a plaintiff 

seeks to hold a defendant liable under the Eighth Amendment 

in his or her role as a supervisor, “Sample’s four-part test 

provides the analytical structure . . . , it being simply the 

deliberate indifference test applied to the specific situation of 

a policymaker.” Whetzel, 256 F.3d at 135.
19

Which brings us to Iqbal. Javaid Iqbal sued United 

States Attorney General John Ashcroft and FBI Director 

Robert Mueller, high-level Executive Branch officials, under 

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 

388 (1971). In Bivens, the Court “‘recognized for the first 

time an implied private action for damages against federal 

officers alleged to have violated a citizen’s constitutional 

rights.’” Iqbal, 556 U.S. at 675 (quoting Corr. Serv. Corp. v. 

Malesko, 534 U.S. 61, 66 (2001)). Iqbal alleged that he was 

unlawfully detained and subjected to harsh conditions of 

confinement on the basis of his race, religion, or national 

origin, as part of a purposefully discriminatory policy of 

which Ashcroft was the “principal architect” and Mueller was 

“instrumental” in executing. Id. at 669. Iqbal’s theory of 

supervisory liability was that Ashcroft and Mueller could be 

liable if they had “knowledge [of] and [had] acquiesce[ed] in 

their subordinates’ use of discriminatory criteria to make 

classification decisions among detainees.” Id. at 677 

(internal citation and quotation marks omitted). 

In rejecting Iqbal’s claim, the Supreme Court first 

recognized that “[t]he factors necessary to establish a Bivens

violation will vary with the constitutional provision at issue.” 

Id. at 676. The claim presented in Iqbal – discrimination in 

violation of the First and Fifth Amendments – requires that 

the plaintiff prove that the defendant acted with a 

discriminatory purpose, and “purposeful discrimination 

requires more than ‘intent as volition or intent as awareness 

of consequences.’” Id. (quoting Personnel Adm’r of Mass. v. 

Feeney, 442 U.S. 256, 279 (1979), and citing Church of 

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-41 

(1993); Washington v. Davis, 426 U.S. 229, 240 (1976)). The 

Court reasoned that, because such a claim requires that the 

defendant have acted “‘because of,’ not merely ‘in spite of,’ 
20

[the action’s] adverse effects upon an identifiable group,’” id.

at 676-77 (some internal quotation marks omitted) (quoting 

Feeney, 442 U.S. at 279), it necessarily followed that 

Ashcroft and Mueller could be held liable only if they had 

“adopted and implemented the detention policies at issue . . . 

for the purpose of discriminating on account of race, religion, 

or national origin,” id. (emphasis added). The Court rejected 

Iqbal’s argument that supervisory liability could attach based 

on Ashcroft and Mueller’s knowledge of and acquiescence in 

their subordinates’ unconstitutional discrimination, stating: 

“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.” Id. at 677. In reaching 

this conclusion, the Court expressly tied the level of intent 

necessary for superintendent liability to the underlying 

constitutional tort. See id. at 678 (“In the context of 

determining whether there is a violation of clearly established 

law to overcome qualified immunity, purpose rather than 

knowledge is required to impose Bivens liability on the 

subordinate for unconstitutional discrimination; the same 

holds true for an official charged with violations arising from 

his or her superintendent responsibilities.”). 

This aspect of Iqbal has bedeviled the Courts of 

Appeals to have considered it, producing varied 

interpretations of its effect on supervisory liability. The 

dissenters in Iqbal believed the majority to be abolishing 

supervisory liability in its entirety, 556 U.S. at 692-93 

(Souter, J., dissenting), and at least one Court of Appeals 

impliedly confirmed this view, albeit without much in the 

way of discussion, see Carnaby v. City of Houston, 636 F.3d 
21

183, 189 (5th Cir. 2011).7 The Ninth Circuit, on the other 

hand, has suggested that under Iqbal the United States 

Attorney General could be liable for knowingly “fail[ing] to 

act in the light of even unauthorized abuses” of the federal 

material witness statute, insofar as that statute was used as a 

pretext to detain terrorism suspects despite a lack of probable 

cause of a criminal violation. See al-Kidd v. Ashcroft, 580 

F.3d 949, 976 (9th Cir. 2009), overruled on other grounds, 

131 S. Ct. 2074 (2011) (overruling the Ninth Circuit on the 

basis of qualified immunity, finding no Fourth Amendment 

violation, and not reaching the supervisory liability question). 

Most courts have gravitated to the center, recognizing 

that because the state of mind necessary to establish a § 1983 

or Bivens claim varies with the constitutional provision at 

issue, so too does the state of mind necessary to trigger 

liability in a supervisory capacity. The Tenth Circuit, for 

example, held that, after Iqbal, § 1983 liability may attach to 

“a defendant-supervisor who creates, promulgates, 

implements, or in some other way possesses responsibility for 

the continued operation of a policy the enforcement (by the 

defendant-supervisor or her subordinates) of which ‘subjects, 

or causes to be subjected,’” the plaintiff to a constitutional 

deprivation, if the supervisor “acted with the state of mind 

required to establish the alleged constitutional deprivation.” 

 

7

In Carnaby, the Fifth Circuit affirmed a grant of summary 

judgment in favor of a police officer whose alleged 

supervisory failure led other officers to commit an excessive 

use of force. 636 F.3d at 189. The Court cited Iqbal for the 

proposition that “[u]nder § 1983 . . . a government official 

can be held liable only for his own misconduct,” id. (citing 

Iqbal, 556 U.S. at 692-93), but did not consider whether a 

failure to supervise could in some instances be misconduct.
22

Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010) 

(emphasis added). The Court of Appeals in Dodds reasoned 

that such a standard “complies with Iqbal’s requirement that § 

1983 liability only be imposed upon those defendants whose 

own individual actions cause a constitutional deprivation 

because it requires plaintiffs [to] prove each defendant took 

some act with the constitutionally applicable state of mind 

that caused the alleged constitutional violation.” Id. at 1200. 

The Ninth Circuit agreed with this view in Starr v. Baca, 

seeing “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.” 652 F.3d 1202, 1207 (2011). See also 

Whitson v. Stone County Jail, 602 F.3d 920, 922, 927-28 (8th 

Cir. 2010) (holding that prison supervisors could be liable on 

an Eighth Amendment claim “only if they personally 

displayed deliberate indifference to the risk” of a 

constitutional deprivation); Sanchez v. Pereira-Castillo, 590 

F.3d 31, 49 (1st Cir. 2009) (holding, post-Iqbal, that prison 

administrators could be liable in a supervisory capacity for a 

Fourth Amendment violation if their “actions displayed 

deliberate indifference toward the rights of third parties and 

had some causal connection to the subsequent tort”) (quoting 

Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999)).

The Seventh Circuit has also indicated that the mental 

state required to impose supervisory liability will vary with 

the underlying constitutional tort. In T.E. v. Grindle, the 

Seventh Circuit held that a school principal could be liable 

under § 1983 for allowing a subordinate teacher to continue 

working despite numerous allegations that the teacher was 

sexually abusing his female students. 599 F.3d 583, 585-87 

(7th Cir. 2010). The plaintiff alleged supervisory liability that 

derived from both substantive due process and equal 
23

protection violations. The Court recognized that Iqbal had 

abrogated its prior precedent allowing plaintiffs to recover 

from a supervisor who was deliberately indifferent toward a 

subordinate’s purposeful discrimination, because in a 

discrimination claim Iqbal requires that “a plaintiff must 

show that the supervisor possessed . . . discriminatory intent.” 

Id. But this was not so with respect to the substantive due 

process claim, for which the Court held that “[w]hen a state 

actor’s deliberate indifference deprives someone of his or her 

protected liberty interest . . . , that actor violates the 

Constitution, regardless of whether the actor is a supervisor or 

subordinate.” Id. at 591. The Court thus recognized that the 

mental state necessary for supervisory liability tracks with the 

mental state required for the underlying tort. See also Vance 

v. Rumsfeld, 701 F.3d 193, 204 (7th Cir. 2012) (en banc).

We do not read Iqbal to have abolished supervisory 

liability in its entirety. Rather, we agree with those courts 

that have held that, under Iqbal, the level of intent necessary 

to establish supervisory liability will vary with the underlying 

constitutional tort alleged. In this case, the underlying tort is 

the denial of adequate medical care in violation of the Eighth 

Amendment’s prohibition on cruel and unusual punishment, 

and the accompanying mental state is subjective deliberate 

indifference. See Farmer v. Brennan, 511 U.S. 825, 847 

(1994). Iqbal held that state officials are liable only for their 

own unconstitutional actions. The essence of the type of 

claim we approved in Sample is that a state official, by virtue 

of his or her own deliberate indifference to known

deficiencies in a government policy or procedure, has allowed 

to develop an environment in which there is an unreasonable 

risk that a constitutional injury will occur, and that such an 

injury does occur. Liability in such a situation is, as Iqbal

requires, imposed not vicariously but based on the 
24

supervisor’s own misconduct, because to exhibit deliberate 

indifference to such a situation is a culpable mental state 

under the Eighth Amendment. See Starr, 652 F.3d at 1207 

(“[W]hen 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.”). Accordingly, we hold that the standard we 

announced in Sample for imposing supervisory liability based 

on an Eighth Amendment violation is consistent with Iqbal. 

We leave for another day the question whether and under 

what circumstances a claim for supervisory liability derived 

from a violation of a different constitutional provision 

remains valid. 

2.

Our dissenting colleague disagrees with our conclusion 

that Sample has survived Iqbal. In his view, a supervisor can 

be held liable under the Eighth Amendment only if he 

committed an affirmative “action[],” was “personal[ly] 

involve[d] in his subordinates’ misfeasance,” and acted with 

“intentional . . . deliberate indifference.” Dis. Op. at 9, 19 

(internal quotation marks omitted). Our colleague claims that 

his position recognizes that “there’s no special rule of liability 

for supervisors” and that “the test for them is the same as the 

test for everyone else.” Id. at 20 (internal quotation marks 

omitted) (quoting Porro v. Barnes, 624 F.3d 1322, 1327-28 

(10th Cir. 2010)). But in fact the opposite is true: his test 

would immunize from liability prison officials who were 

deliberately indifferent to a substantial risk that inmates’ 

serious medical conditions were being mistreated or not 

treated at all. This would subvert the Supreme Court’s 

command that any prison official who, “acting with deliberate 

indifference, expose[s] a prisoner to a sufficiently substantial 
25

risk of serious damage to his future health,” violates the 

Eighth Amendment. Farmer, 511 U.S. at 844 (internal 

quotation marks and citations omitted). Simply because an 

official may have a senior position in the DOC does not make 

him free to ignore substantial dangers to inmate health and 

safety. Id. at 842; Grindle, 599 F.3d at 590 (“When 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.”). 

Treating supervisors and subordinates equally under 

the Eighth Amendment does not mean ignoring the different 

ways in which each type of officer can, with deliberate 

indifference, expose inmates to constitutional injury. We 

think our dissenting colleague fails to recognize this fact, and 

in doing so makes three significant analytical errors. We 

address each below.

i.

First, the Dissent claims that for a supervisor to be 

liable under § 1983, he must have taken a “deliberate, 

intentional act . . . to violate the plaintiff’s legal rights.” Dis. 

Op. at 12 (quoting Porro, 624 F.3d at 1327-28). The Dissent 

draws this principle primarily from the Tenth Circuit’s 

opinion in Porro, which we have cited with approval for its 

discussion of the mental state required to make out a claim of 

supervisory liability. But on this particular point the 

Dissent’s reliance is off-base. Porro involved an allegation 

of excessive force by an officer, for which the plaintiff also 

sued the Sheriff (and his successor) as supervisor. 624 F.3d 

at 1324-25. In affirming the district court’s grant of summary 

judgment to the Sheriff, the Tenth Circuit began by 
26

identifying the precise constitutional tort at issue: the use of 

excessive force in violation of the due process clause. Id. at 

1326. The court stated that for a supervisor to be liable, he 

must have committed a “deliberate, intentional act.” Id. at 

1327-28. Importantly, it made this statement in the context of 

an excessive force claim, which meant that “the focus [was] 

on the force the supervisor used or caused to be used, the 

resulting injury attributable to his conduct, and the mens rea

required of him to be held liable, which can be no less than 

the mens rea required of anyone else.” Id. at 1328 (emphasis 

omitted). But excessive force claims are different than 

conditions of confinement claims: instead of deliberate 

indifference, they require a plaintiff to show that “officials 

applied force ‘maliciously and sadistically for the very 

purpose of causing harm,’ or . . . with ‘a knowing willingness 

that [harm] occur.’” Farmer, 511 U.S. at 835-36 (quoting 

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). Under the rule 

we derive from Iqbal – that the mental state necessary for 

supervisory liability will vary with the substance of the 

underlying constitutional tort – it makes sense that the Tenth 

Circuit would require deliberate action in that case.

The Dissent’s position neglects the black-letter 

principle that the type of Eighth Amendment claim alleged 

here can be shown by an act or an omission. See Farmer, 511 

U.S. at 835 (“[T]he cases are . . . clear 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” (emphasis added)); Estelle 

v. Gamble, 429 U.S. 97, 106 (1976) (“In order to state a 

cognizable claim [under the Eighth Amendment], a prisoner 

must allege acts or omissions sufficiently harmful to evidence 

deliberate indifference to serious medical needs.” (emphasis 

added)). What the Dissent attempts to do is shoehorn into the 
27

Eighth Amendment the deliberate-act requirement adopted in 

our state-created-danger jurisprudence. In that context, we 

have held that “[l]iability . . . [must be] predicated upon the 

states’ affirmative acts which work to the plaintiff’s detriment 

in terms of exposure to danger. It is the misuse of state 

authority, rather than a failure to use it, that can violate the 

Due Process Clause.” Phillips v. Cnty. of Allegheny, 515 F.3d 

224, 235 (3d Cir. 2008) (third alteration added; emphasis in 

original) (quoting Bright v. Westmoreland Cnty., 443 F.3d 

276, 282 (3d Cir. 2006)).8 The reason for this requirement is 

that the Government is not generally required to “guarantee 

[a] certain minimal level[] of safety and security” to its 

citizens. Bright, 443 F.3d at 280 (quoting DeShaney v. 

Winnebago Cnty. Soc. Servs. Dep’t., 489 U.S. 189, 195-96 

(1989)). But this principle does not apply once the 

Government takes custody of the citizen and deprives him of 

his liberty.

[Our cases] stand only for the 

proposition that when the State 

takes a person into its custody and 

holds him there against his will, 

the Constitution imposes upon it a 

corresponding duty to assume 

some responsibility for his safety 

 

8

The elements of a properly pleaded state-createddanger claim are: “(1) the harm ultimately caused to the 

plaintiff was foreseeable and fairly direct; (2) the state-actor 

acted in willful disregard for the plaintiff’s safety; (3) there 

was some relationship between the state and the plaintiff; and 

(4) the state-actor used his authority to create an opportunity 

for danger that otherwise would not have existed.” Phillips, 

515 F.3d at 235.
28

and general well-being. . . . The 

affirmative duty to protect arises 

not from the State’s knowledge of 

the individual’s predicament or 

from its expressions of intent to 

help him, but from the limitation 

which it has imposed on his 

freedom to act on his own behalf.

Id. at 280-81 (alteration in original) (quoting DeShaney, 489 

U.S. at 199-200). The Dissent cites Grindle in support of its 

claim that an affirmative act is required, and he is correct that 

this case upheld a supervisory liability claim for substantive 

due process deliberate indifference that was predicated upon 

an official’s attempt to “conceal[] reports of abuse and 

creat[e] an atmosphere that allowed abuse to flourish.” 599 

F.3d at 590. Certainly, an affirmative act such as 

concealment of wrongdoing could satisfy the deliberate 

indifference standard, but it is not necessary. Under the 

Eighth Amendment, prison officials, from the bottom up, may 

be liable if by act or omission they display a deliberate 

indifference to a known risk of substantial harm to an 

inmate’s health or safety. Farmer, 511 U.S. at 843. The 

omission alleged here is the deliberately indifferent failure to 

enforce FCM’s compliance with proper suicide-prevention 

protocols, as required under FCM’s contract with the DOC. 

As we will discuss, there is a material factual dispute on this 

point. 

ii.

The Dissent would require both that the supervisor 

“personally display[ed] deliberate indifference,” Dis. Op. at 
29

20 (internal citation and quotation marks omitted), and that 

the supervisor was “personal[ly] involve[d] in his 

subordinates’ misfeasance,” id. at 9. With respect to the 

former observation, we agree, which is why our decision 

requires subjective deliberate indifference on the part of the 

offending officer. See Part III.A.1, supra. With respect to the 

latter, the Dissent misinterprets the rules for Eighth 

Amendment liability under Farmer. 

The Dissent asserts that, by affirming Sample’s vitality 

post-Iqbal, our decision wrongly applies an objective, rather 

than a subjective, test for evaluating deliberate indifference, 

in contravention of Farmer. This criticism is unpersuasive 

for two reasons. First, the premise upon which the Dissent’s 

argument rests – that “Sample’s objective quality is patent,” 

see Dis. Op. at 19 – is far from clear. Sample expressly 

constructed its test for deliberate indifference around what the 

officer knew and how the officer reacted to that knowledge. 

Sample, 885 F.2d at 1118 (asking whether the officer “was 

aware that this unreasonable risk existed” and whether that 

officer “was indifferent to that risk” (emphasis added)). This 

is clearly a subjective test as required by Farmer, a 

conclusion bolstered by our recitation of the Sample test in 

Brown, a case that post-dates Farmer and yet approves 

Sample. See Brown, 269 F.3d at 216. Far from being patently 

objective, Sample’s test is explicitly concerned with the 

officer’s subjective knowledge.

The origin of the Dissent’s discontent may be 

Sample’s reference to City of Canton v. Harris, 489 U.S. 378 

(1989). In City of Canton, the Supreme Court held that a 

municipality “can be liable for failure to train its employees 

when the municipality’s failure shows ‘a deliberate 

indifference to the rights of its inhabitants.’” Farmer, 511 

U.S. at 840 (quoting City of Canton, 489 U.S. at 389). In 
30

Farmer, the Court stated that City of Canton, which allowed 

liability to attach based on “obviousness or constructive 

notice,” created an objective test for deliberate indifference 

that was inappropriate in the Eighth Amendment context. 

Farmer, 511 U.S. at 841. To be sure, Sample stated that it 

derived its test “[b]ased on City of Canton,” 885 F.2d at 1118, 

but the actual test that it articulated clearly sounds in 

subjectivity.

The Dissent cites a passage of Sample in which we 

said that “there are situations in which the risk of 

constitutionally cognizable harm is so great and so obvious 

that the risk and the failure of supervisory officials to respond 

will alone support findings of the existence of an 

unreasonable risk, of knowledge of that unreasonable risk, 

and of indifference to it.” 885 F.2d at 1118; Dis. Op. at 19. 

In fairness to our colleague, one could read this as suggesting 

that an objective test might be applicable in situations where 

evidence of the officer’s knowledge and intent was absent. 

But one could also read this statement as recognizing that the 

requisite mental state can be proved by circumstantial 

evidence. Cf. Farmer, 511 U.S. at 842 (“Whether a prison 

official had the requisite knowledge of a substantial risk is a 

question of fact subject to demonstration in the usual ways, 

including inference from circumstantial evidence, and a 

factfinder may conclude that a prison official knew of a 

substantial risk from the very fact that the risk was obvious.” 

(emphasis added)). 

At any rate, this brings us to the second reason that the 

Dissent’s objection fails: the test that we derive from Sample

and apply in this case cannot be described as anything but 

subjective, and is thus entirely consistent with Farmer. 

Moreover, the Dissent’s statement that the District Court has 

already determined that “‘a reasonable factfinder could not 
31

determine that Defendants were deliberately indifferent to the 

risk of suicide,’” Dis. Op. at 18 (quoting JA at 15), is a red 

herring because that determination was made in reference to 

Count I of the third amended complaint, which alleged that 

Appellants were deliberately indifferent to Barkes’s serious 

medical needs as an individual. That is a very different claim 

than the supervisory liability claim contained in Count V and 

that we are allowing to proceed. To the extent that Sample

approved, in some circumstances, an objective test for 

determining a prison official’s Eighth Amendment deliberate 

indifference, that portion of Sample has been abrogated by 

Farmer and it is not the test we apply today.

Recognizing that our test does, in fact, require an 

official’s subjective deliberate indifference, the Dissent pivots 

and claims that the plaintiff must nonetheless plead that the 

supervisor was “personal[ly] involve[d] in his subordinates’ 

misfeasance.” Dis. Op. at 9. The Dissent’s rule would have 

the practical effect of requiring that a supervisor have 

personal knowledge of an individual inmate, that inmate’s 

particular serious medical need, and of the prison staff’s 

failure to treat that need, before the supervisor could ever be 

held liable for deliberate indifference. But Farmer itself 

recognized that a prison official cannot avoid liability under 

the Eighth Amendment simply “by showing that, while he 

was aware of an obvious, substantial risk to inmate safety, he 

did not know that the complainant was especially likely to” 

suffer a constitutional injury. 511 U.S. at 843.

The question under the Eighth 

Amendment is whether prison 

officials, acting with deliberate 

indifference, exposed a prisoner 

to a sufficiently substantial “risk 

of serious damage to his future 
32

health,” and it does not matter 

whether the risk comes from a 

single source or multiple sources, 

any more than it matters whether 

a prisoner faces an excessive risk 

of attack for reasons personal to 

him or because all prisoners in his 

situation face such a risk. If, for 

example, prison officials were 

aware that inmate “rape was so 

common and uncontrolled that 

some potential victims dared not 

sleep [but] instead . . . would 

leave their beds and spend the 

night clinging to the bars nearest 

the guards’ station,” it would 

obviously be irrelevant to liability 

that the officials could not guess 

beforehand precisely who would 

attack whom.

Id. at 843-44 (internal citations omitted) (quoting Helling v. 

McKinney, 509 U.S. 25, 33, 35 (1993); Hutto v. Finley, 437 

U.S. 678, 681-82 n.3 (1978)). A high-ranking prison official 

can expose an inmate to danger by failing to correct serious 

known deficiencies in the provision of medical care to the 

inmate population. That the official had no specific 

knowledge of any particular inmate or the failure of 

subordinate officials to treat that inmate’s serious medical 

condition is irrelevant.

The Dissent suggests that Nelson v. Correctional 

Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc), 

contradicts our analysis, but in fact that case supports our 

position. There, an inmate sued a guard and a prison director 
33

under the Eighth Amendment because her legs had been 

shackled during labor, causing her injury. Id. at 525-27. She 

alleged that the prison director had violated her rights “by

failing to ensure that proper policies and customs were 

implemented with respect to the restraint of female inmates in 

labor.” Id. at 534-35. The Eighth Circuit stated that the 

director could be liable “if he personally displayed deliberate 

indifference to the hazards and pain resulting from shackling 

an inmate such as [the plaintiff] during the final stages of 

labor.”9 Id. (emphasis added) (citing Farmer, 511 U.S. at 

842). The court then engaged in a lengthy analysis of the 

policies and procedures in place at the time, and concluded 

that they “suggest[ed] administrative concern for the health 

and safety of pregnant inmates.” Id. at 536. Under the Eighth 

Circuit’s analysis, the outcome would have been different had 

the policies and procedures in place been constitutionally 

inadequate and had there been evidence of the prison 

director’s deliberate indifference to that fact. Nelson’s 

analysis also suggests that the director could have been held 

liable if, notwithstanding the adequacy of the policies, he had 

been deliberately indifferent to a widespread failure to 

properly implement the policies. See id. at 536 (recognizing 

the adequacy of the policies and stating that “[w]ithout 

further allegation or evidence of deliberate indifference,” the 

Eighth Amendment claim must fail (emphasis added)). The 

latter situation is analogous to that before us today.

 

9 Contrary to the Dissent’s implication, see Dis. Op. at 

13, the prison director’s lack of personal knowledge of the 

plaintiff and his absence at her delivery were merely 

undisputed facts in the case. Nelson, 583 F.3d at 535. No 

part of the court’s analysis turned on these facts.
34

What the Dissent fundamentally fails to recognize is 

that there are different ways that prison officials can be 

responsible for causing an inmate harm. Dissenting in Vance, 

Judge Hamilton adroitly provided the following hypothetical:

“[S]uppose . . . that a local police 

chief or even the FBI director 

issued a policy that authorized the 

use of deadly force against any 

fleeing subject. The policy itself 

would be unconstitutional under 

Tennessee v. Garner[, 471 U.S. 1 

(1985)]. The chief or director who 

authorized that unconstitutional 

use of force could certainly be 

held personally responsible under 

section 1983 or Bivens to a person 

shot by an officer following the 

policy. 

Vance, 701 F.3d at 223 (Hamilton, J., dissenting). No less 

here, where there is evidence of serious inadequacies in the 

provision of adequate medical care for inmates, and there is 

evidence that prison officials were aware of the problem and 

yet indifferent to the risk that an inmate would suffer a 

constitutional injury, they can be held liable under § 1983 for 

violating the Eighth Amendment

iii.

Our final point of disagreement with the Dissent is in 

his articulation of the deliberate indifference standard itself. 

The Dissent claims that we err in failing to apply an 

“intentional version of deliberate indifference.” Dis. Op. at 
35

19. But his formulation of deliberate indifference is entirely 

inconsistent with Supreme Court precedent.

We derive the test for establishing Eighth Amendment 

deliberate indifference from Sample and from the Supreme 

Court’s decision in Farmer. While the Dissent is correct that 

Appellees do not allege that Appellants took an intentional act 

to cause inadequate medical care for inmates, this is a strawman argument because under Farmer they are not required to 

make that allegation. Farmer stated that although “deliberate 

indifference entails something more than mere negligence, 

the cases are also clear that it is satisfied by something less 

than acts or omissions for the very purpose of causing harm 

or with knowledge that harm will result.” 511 U.S. at 835. 

Deliberate indifference falls “somewhere between the poles 

of negligence at one end and purpose or knowledge at the 

other.” Id. at 836. “[A]n Eighth Amendment claimant need 

not show that a prison official acted or failed to act believing 

that harm actually would befall an inmate; it is enough that 

the official acted or failed to act despite his knowledge of a 

substantial risk of serious harm.” As we will discuss infra, 

there remains a genuine dispute of material fact over whether 
36

Appellants displayed deliberate indifference under this 

standard.10

B.

“Qualified immunity shields government officials from 

civil damages liability unless the official violated a statutory 

or constitutional right that was clearly established at the time 

of the challenged conduct.” Reichle v. Howards, 132 S. Ct. 

2088, 2093 (2012). The qualified immunity analysis is thus 

composed of two constituent questions: first, whether the 

plaintiff suffered a deprivation of a constitutional or statutory 

right; and second, if so, whether that right was “clearly 

established” at the time of the alleged misconduct. If the 

answer to either question is “no,” qualified immunity applies. 

 

10 The Dissent draws its “intentional” deliberate 

indifference test from Vance. Vance stated, in discussing 

supervisory liability post-Iqbal, that “[d]eliberate indifference 

to a known risk is a form of intent,” but that in order “to show 

scienter by the deliberate-indifference route, a plaintiff must 

demonstrate that the public official knew of risks with 

sufficient specificity to allow an inference that inaction is 

designed to produce or allow harm.” 701 F.3d at 204. We 

think Vance is distinguishable because that case did not 

consider an Eighth Amendment claim. Before reaching the 

question of supervisory liability, the Seventh Circuit 

considered whether it would recognize a new Bivens remedy 

against military personnel who mistreat detainees in violation 

of the Detainee Treatment Act, 10 U.S.C. § 801 note and 42 

U.S.C. §§ 2000dd to 2000dd-1, and potentially one or more 

treaties. 702 F.3d at 198. The allegation involved violation 

of a federal statutory right rather than the Eighth Amendment, 

and so the mental state need not have matched that which we 

apply today.
37

Id. Deciding which question to address first is within the 

Court’s sound discretion. Pearson v. Callahan, 555 U.S. 223, 

236 (2009). 

1.

A right is “clearly established” if, at the time of the 

alleged deprivation, “‘[t]he contours of [the] right [are] 

sufficiently clear’ that every ‘reasonable official would have 

understood that what he is doing violates that right.’” alKidd, 131 S. Ct. at 2083 (second alteration in original) 

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 

Crucial to the “clearly established” inquiry is the level of 

generality at which the right is defined. A constitutional right 

is not “clearly established simply because of the existence of 

a broad imperative like the one against ‘unreasonable . . . 

seizures,’” Schneyder v. Smith, 653 F.3d 313, 329 (3d Cir. 

2011), but nor must there be “a case directly on point [if] 

existing precedent . . . [has] placed the statutory or 

constitutional question beyond debate,” al-Kidd, 131 S. Ct. at 

2083 (citing Anderson, 483 U.S. at 640). Rather, the asserted 

right must be sufficiently bounded that it gives “practical 

guidance” to officials on the ground. See John C. Jeffries, Jr., 

What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851, 

854 (2010). Put another way, the right asserted cannot be so 

abstract that any transgression violates a clearly established 

right, thereby evaporating “the balance . . . between the 

interests in vindication of citizens’ constitutional rights and in 

public officials’ effective performance of their duties.” 

Anderson, 483 U.S. at 639 (internal quotation marks omitted) 

(quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). The 

“ultimate question” in the qualified immunity analysis “is 

whether the defendant had ‘“fair warning” that his conduct 

deprived his victim of a constitutional right.’” Schneyder, 
38

653 F.3d at 329 (quoting Hope v. Pelzer, 536 U.S. 730, 740 

(2002)).

The “clearly established” game is won or lost on how 

broadly or narrowly one defines the right at issue. Appellants 

attempt to atomize the asserted right into oblivion by defining 

it narrowly as an inmate’s right to “supervision of the medical 

vendor by the prison administrators,” for which they assert 

that “[t]here is no case law establishing that a government 

entity is responsible for monitoring a medical provider under 

Section 1983.” Appellants’ Br. at 19. There are two 

problems with this characterization. First, its myopia runs 

directly contrary to the Supreme Court’s oft-repeated 

admonition that “a case directly on point” is not required for a 

right to be clearly established. See al-Kidd, 131 S. Ct. at 

2083. Second, this argument hinges entirely on the 

outsourcing of prison medical care to a private, third-party 

provider. Appellants do not argue that they have no 

responsibility to supervise state-employed correctional staff 

such as guards, or that they would have no responsibility to 

supervise the medical staff were it composed of state 

employees rather than private contractors. Rather, their

argument depends entirely on the Court finding that there is a 

difference of constitutional import between the two. No 

reasonable prison administrator could believe that hiring a 

private contractor to provide a constitutionally required 

service would allow them to abdicate their constitutional 

supervisory duties. Yet, culled to its essence, that is 

Appellants’ argument.

Even if we were to accept the manner in which 

Appellants would particularize the asserted right, they have 

nonetheless failed to show a lack of clarity in the law. They 

rely on our decision in Spruill v. Gillis, in which an inmate in 

a Pennsylvania prison brought a § 1983 claim against, among 
39

other individuals, the Unit Manager of the Restricted Housing 

Unit, alleging that as a result of his deliberate indifference the 

plaintiff was injured by an untreated or inadequately treated 

back problem. 372 F.3d 218, 222 (3d Cir. 2004). In 

affirming dismissal of the complaint against the non-medical 

official for failure to state a claim, we held:

If a prisoner is under the care of medical experts 

. . . , a non-medical prison official will generally 

be justified in believing that the prisoner is in 

capable hands. This follows naturally from the 

division of labor within a prison. Inmate health 

and safety is promoted by dividing 

responsibility for various aspects of inmate life 

among guards, administrators, physicians, and 

so on. Holding a non-medical prison official 

liable in a case where a prisoner was under a 

physician’s care would strain this division of 

labor. Moreover, under such a regime, nonmedical officials could even have a perverse 

incentive not to delegate treatment 

responsibility to the very physicians most likely 

to be able to help prisoners, for fear of vicarious 

liability.

Id. at 236. 

Appellants rely on this language to argue that, at the 

time of Barkes’s suicide, it was not clearly established that 

they, as non-medical prison administrators, had a 

constitutional supervisory duty over the medical staff. But in 

the very next line of Spruill we stated that “absent a reason to 

believe (or actual knowledge) that prison doctors or their 

assistants are mistreating (or not treating) a prisoner, a nonmedical prison official . . . will not be chargeable with the 
40

Eighth Amendment scienter requirement of deliberate 

indifference.” Id. Dismissal was proper in Spruill because 

the plaintiff had failed to plead facts suggesting that the 

official was aware of the alleged inadequacies in medical 

care, not because prison administrators are categorically 

exempt from a supervisory role over medical personnel. Id.

at 236-37 & n.12. And moreover, there is nothing in Spruill

supporting Appellants’ contention that there is a difference of 

constitutional import between state-employed and privately 

contracted medical staff. Appellants’ argument that the law 

was hazy with respect to their supervisory duty over prison 

medical staff is thus belied by the very case upon which they 

rely. See Appellants’ Br. at 20 (conceding that Spruill was 

“[t]he clearly established” law at the pertinent time).11

With that said, we think that the right Appellees assert, 

properly defined, is this: an incarcerated person’s right to the 

proper implementation of adequate suicide prevention 

protocols.12 This right is clearly established in our case law, 

and was so at the time of Barkes’s suicide. It is beyond 

 

11 The Dissent asserts that we have not “address[ed] Taylor 

and Williams’s argument that there is no clearly established 

right to supervision over those charged with implementing 

suicide prevention protocols.” Dis. Op. at 24-25. This is a 

puzzling disagreement because, as previously demonstrated, 

we have discussed and rejected their attempt to characterize 

the right in such a manner, and noted that, even were we to 

accept it, Spruill forecloses their argument.

12 The District Court defined the pertinent right as Barkes’s 

“constitutional right to adequate medical care.” JA at 21. 

While we agree with the District Court’s ultimate ruling on 

qualified immunity, we think that this characterization fails to 

sufficiently particularize the asserted right.
41

dispute that the cruel and unusual punishments clause of the 

Eighth Amendment, incorporated by virtue of the Fourteenth, 

obliges the States to provide adequate medical care for the 

incarcerated. See Estelle, 429 U.S. at 104. This is so because 

“[p]risoners retain the essence of human dignity inherent in 

all persons.” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011). 

Prisoners, because of their incarceration, have lost the means 

to provide for themselves, and therefore the prisons that 

house them are constitutionally bound to provide sustenance 

and adequate physical and mental health care. Id.

At the time of Barkes’s suicide, we had long 

recognized that an inmate’s “particular vulnerability to 

suicide” is a serious medical need that prison officials may 

not recklessly disregard. Colburn v. Upper Darby Twp., 838 

F.2d 663, 669 (3d Cir. 1988) (Colburn I), abrogated on other 

grounds by Leatherman v. Tarrant Cnty. Narcotics 

Intelligence and Coordination Unit, 507 U.S. 163 (1993). In 

Colburn I, we examined for the first time whether a prisoner’s 

suicide can give rise to liability under § 1983. We began by 

examining cases in which the plaintiff was the victim of 

violence by persons other than the defendant-officials, and 

drew from that precedent the conclusion that “where prison 

officials infringed a liberty interest by intentional conduct, 

gross negligence, or reckless indifference, or an established 

state procedure, the matter is actionable under section 1983.” 

Id. at 667-68 (citing Commonwealth Bank & Trust Co. v. 

Russell, 825 F.2d 12 (3d Cir. 1987); Davidson v. O’Lone, 752 

F.2d 817 (3d Cir. 1984) (en banc), aff’d sub nom. Davidson v. 

Cannon, 474 U.S. 344 (1986)). We saw “no reason not to 

apply a similar construction of section 1983 when the acts 

causing the injury are those of the prisoner herself.” Id. at 

668.

We drew additional guidance from the Supreme 
42

Court’s decision in Hudson v. Palmer, 468 U.S. 517 (1984). 

See Colburn I, 838 F.2d at 668-69. In Hudson, the Supreme 

Court approved of searches of inmates and their cells to 

discover contraband in order to not only prevent violence 

against correctional staff and other prisoners but also to 

prevent suicides. Hudson, 468 U.S. at 526 (recognizing that 

suicide was a significant concern in correctional institutions). 

Finding particular significance in “the [Hudson] Court’s 

statement that prison administrators ‘are under an obligation 

to take reasonable measures to guarantee the safety of the 

inmates themselves,’” Colburn I, 838 F.2d at 668 (quoting 

Hudson, 468 U.S. at 526), we held that when custodial 

officials “know or should know of the particular vulnerability 

to suicide of an inmate, then the Fourteenth Amendment 

imposes on them an obligation not to act with reckless 

indifference to that vulnerability,” id. at 669.13 

 

13 We also relied on the Fifth Circuit’s decision in Partridge 

v. Two Unknown Police Officers, 791 F.2d 1182 (5th Cir. 

1986). Partridge was one of the first cases to extend the 

analysis of Estelle to prison suicide cases. Writing for the 

Court, Judge Wisdom observed: 
43

We further elucidated this issue in Colburn v. Upper 

Darby Township, 946 F.2d 1017 (3d Cir. 1991) (Colburn II). 

In Colburn II, we explained that one of the principal 

“theoretical underpinnings” in Colburn I was the Supreme 

Court’s ruling in Estelle, which established that prison 

administrators “violate the Eighth Amendment’s proscription 

of cruel and unusual punishment when they exhibit 

‘deliberate indifference to serious medical needs of 

prisoners.’” Id. at 1023 (quoting Estelle, 429 U.S. at 104)). 

We reemphasized in Colburn II that a “particular 

vulnerability to suicide” is a serious medical need 

encompassed within the rule of Estelle. Id. (citing 

 

[The due process clause imposed on the 

custodial officials] a duty, at a minimum, not to 

be deliberately indifferent to Partridge's serious 

medical needs. A serious medical need may 

exist for psychological or psychiatric treatment, 

just as it may exist for physical ills. A 

psychological or psychiatric condition can be as 

serious as any physical pathology or injury, 

especially when it results in suicidal tendencies. 

And just as a failure to act to save a detainee 

from suffering from gangrene might violate the 

duty to provide reasonable medical care absent 

an intervening legitimate government objective, 

failure to take any steps to save a suicidal 

detainee from injuring himself may also 

constitute a due process violation . . . .

Id. at 1187 (quoted in Colburn I, 838 F.2d at 669).
44

Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326 

(3d Cir. 1987)).14

This body of precedent places it “beyond debate,” alKidd, 131 S. Ct. at 2083, that appropriate suicide-preventive 

measures are a required component of the Constitution’s 

command that prison administrators provide adequate mental 

and physical health care for inmates. Our decision in Spruill

gives “fair warning,” Schneyder, 653 F.3d at 329, that nonmedical prison officials may “be chargeable with the Eighth 

Amendment scienter requirement of deliberate indifference” 

when they possess actual knowledge or have reason to believe 

that prison medical staff are mistreating or failing to treat 

inmates’ serious medical conditions. Spruill, 372 F.3d at 236. 

Accordingly, we hold that the right Appellees assert – an 

incarcerated person’s right to the proper implementation of 

 

14 We note that the District Court cited Woloszyn v. County of 

Lawrence, 396 F.3d 314, 319 (3d Cir. 2005), in support of its 

holding that Barkes had alleged the violation of a clearly 

established right. See JA at 19 n.5. We reiterated in 

Woloszyn that a vulnerability to suicide is a serious medical 

need. 396 F.3d at 319-20. However, Woloszyn post-dates 

Barkes’ 2004 death, and accordingly is not relevant for 

purposes of determining the state of the law at the pertinent 

time. See Leveto v. Lapina, 258 F.3d 156, 162 (3d Cir. 2001) 

(“‘[I]n the light of pre-existing law the unlawfulness must be 

apparent’” (quoting Anderson, 483 U.S. at 640)). 

Nonetheless, as we discuss above, our decisional law in place 

at the time of Barkes’ death suffices to meet the clearly 

established inquiry. 
45

adequate suicide prevention protocols – was clearly 

established at the time of Barkes’s suicide.15

2.

The first prong of the qualified immunity analysis 

(though we address it second here) asks whether the plaintiff 

suffered a deprivation of a constitutional or statutory right. A 

finding of qualified immunity grants immunity not only from 

liability, but from the burdens of litigation itself. We have 

recognized that “‘the determination of qualified immunity 

must be made at an early stage in the litigation’” – often in a 

pre-answer motion to dismiss. See Ball v. Famiglio, 726 F.3d 

448, 461 (3d Cir. 2013) (quoting Vaughn v. U.S. Small Bus. 

Admin., 65 F.3d 1322, 1326 (6th Cir. 1995)). We thus often 

analyze qualified immunity without the benefit of a factual 

record. However, in this case Appellants asserted qualified 

immunity in a motion for summary judgment. While “[t]he 

issue of qualified immunity is generally a question of law, . . . 

a genuine issue of material fact will preclude summary 

judgment on qualified immunity.” Giles, 571 F.3d at 326 

(citing Deary v. Three Un-Named Police Officers, 746 F.2d 

 

15 The Dissent makes one final objection to this analysis, 

claiming that by defining the right to include the “proper 

implementation” of suicide prevention protocols we have 

“plainly violate[d] the basic proposition that the Eighth 

Amendment does not impose liability for negligence.” Dis. 

Op. at 26. We have not. Nothing in our definition of the 

right at issue – or in our opinion more broadly – remotely 

suggests that a mere negligent failure to properly implement 

suicide prevention protocols would be sufficient to trigger 

liability. A recklessly indifferent failure to properly 

implement such protocols, however, may very well trigger 

Eighth Amendment liability. 
46

185, 192 (3d Cir. 1984)). Based upon our review of the 

summary judgment record, we find that there exist genuine 

disputes of material fact that preclude a finding of qualified 

immunity for Appellants. 

As we noted previously, Sample’s four-part test 

provides the rubric for evaluating whether supervisors are 

liable under § 1983 for deliberate indifference. See Whetzel, 

256 F.3d at 134-35. To hold a supervisor liable for such an 

Eighth Amendment violation, the plaintiff must identify a 

supervisory policy or procedure that the supervisor defendant 

failed to implement, and prove that: (1) the policy or 

procedures in effect at the time of the alleged injury created 

an unreasonable risk of a constitutional violation; (2) the 

defendant-official was aware that the policy created an 

unreasonable risk; (3) the defendant was indifferent to that 

risk; and (4) the constitutional injury was caused by the 

failure to implement the supervisory procedure. Brown, 269 

F.3d at 216 (discussing Sample). The District Court found 

that disputed factual issues existed as to each of these four 

elements. We agree with its analysis. 

Appellees claim that Taylor and Williams should have 

enforced FCM’s compliance with their contractual 

obligations, specifically by requiring FCM to adhere to up-todate NCCHC standards, by properly administering the 

standards to which they adhered, and by requiring mental 

health screenings to have been conducted by a qualified 

mental health professional rather than an unqualified LPN, 
47

thus satisfying Sample’s threshold requirement.16 Record 

evidence indicates a material factual dispute as to whether 

FCM’s suicide prevention procedures, coupled with DOC’s 

supervision of FCM (or lack thereof), created an unreasonable 

risk of a constitutional violation. First, there is evidence that 

FCM’s suicide prevention screening practices were not in 

 

16 In Count V of the third amended complaint, 

Appellees alleged that Taylor and Williams “failed to 

supervise and/or monitor the activities of FCM . . . including, 

but not limited to, the failure to insure the proper evaluation 

of [Barkes’s] psychological condition in light of his responses 

to intake inquiries advising of his prior suicide attempt, and 

the failure to insure that appropriate suicide-prevention 

observation of and/or restrictions upon Mr. Barkes occurred 

in the period prior to an evaluation by a fully qualified 

medical provider.” JA at 170. They further alleged that “the 

intake form filled out by Mr. Barkes indicated a previous 

suicide attempt in December of 2003, and the presence of 

psychological problems and indications of his usage of 

psychotropic medication, yet he was not placed under 

heightened surveillance,” and that “the intake form, after 

having been filled out by Mr. Barkes, was reviewed only by 

an FCM licensed practical nurse prior to the assignment of 

Mr. Barkes to a virtually unsupervised booking and receiving 

area,” and that “the intake form on which so much reliance 

was placed by the DOC and FCM had been removed by the 

NCCHC from its 2003 ‘Standards for Health Services in 

Prisons’ because the NCCHC had found that prison 

administrators were relying too heavily on such forms instead 

of implementing the procedures described and recommended 

in the text of the ‘Standards for Health Services in Prisons.’” 

JA at 171.
48

compliance with NCCHC standards, as required by their 

contract with the DOC, insofar as FCM was relying on outof-date NCCHC guidelines and failed even to properly 

implement the standards upon which it was relying. 

Specifically, the intake form administered to Barkes was 

designed to be used by a qualified mental health professional, 

but instead was administered by an unqualified LPN. 

Appellees claim that, had the proper procedures been 

followed, Barkes’s answer regarding a previous suicide 

attempt and his use of certain medications would have 

triggered a referral to a mental health professional. While the 

NCCHC apparently accredited HRYCI about one year before 

Barkes’s death, that is simply one fact among many that the 

factfinder will have to consider. Second, the evidence also 

suggests that FCM lacked access to Barkes’s probation 

records, and that if they had such access they would have 

been aware of his lengthy history of mental health problems 

and suicide attempts, and may have placed Barkes under 

heightened suicide prevention measures. Third, there is 

evidence that FCM was intentionally short-staffing to drive 

up profits. Fourth, evidence suggests that DOC’s dilatory 

manner of supervision allowed FCM’s provision of services 

to degrade. Joyce Talley, the DOC official tasked with 

ensuring FCM’s compliance with the contract, did not assess 

FCM’s provision of medical care to the inmates,17 claimed 

 

17 See, e.g., JA at 367 (“Q: Did you make any assessments of 

the job they [FCM] were doing providing medical care for the 

inmates? A: I personally did not, no.”); id. (“Going back to 

my question regarding the assessment of the services 

provided by the independent vendor FCM, was there anyone 

from the Department of Correction who made any such 

assessment? A: There was no one that had the knowledge or 
49

that it was not her responsibility to ensure FCM’s compliance 

with NCCHC standards, and stated that she largely relied on 

FCM to police itself.18 Based on the record before us, a 

reasonable jury could find that FCM’s policies and 

procedures in place at the time of Barkes’s suicide created an 

unreasonable risk of a constitutional deprivation and that 

Appellants’ manner of supervising FCM further exacerbated 

the risk.

Appellants stated in deposition testimony that they 

knew that the quality of FCM’s provision of medical services 

was degrading, with both Appellants acknowledging 

awareness of intentional short-staffing and Williams 

acknowledging awareness of FCM’s contractual noncompliance with respect to implementing the document 

management computer system. Taylor’s termination letter to 

FCM indicates his awareness of FCM’s gross contractual 

non-compliance. A reasonable juror could draw from that 

evidence the conclusion that Appellants were aware of an 

unreasonable risk that FCM’s declining performance would 

result in a failure to treat or a mistreatment of an inmate’s 

serious medical condition. A reasonable juror could also 

conclude that, by failing to enforce FCM’s compliance with 

NCCHC standards as required by their contract, Appellants 

 

the background within the department that could actually go 

out to see if the medical care was provided.”). 

18 See JA at 366-67 (“Q: As in the other responsibilities, did 

you have any type of key managers? A: Within the medical? 

Q: Yes. A: No. It was – no. Q: How is it that you managed 

the health care issues for inmates? A: That would be working 

with the

contracted vendor and through the MRC, the Medical Review 

Committee.”).
50

were deliberately indifferent to the risk that FCM’s flagging 

quality would result in a violation of an inmate’s 

constitutional rights.

Finally, a reasonable juror could find that Barkes’s 

suicide was caused by Appellants’ failures to supervise. 

Despite Barkes’s extensive history of mental health problems 

and multiple suicide attempts (including one at the very 

prison where he was being held, and two a mere 65 days 

before his death), the LPN who performed his intake did not 

place him on even the lowest level of suicide watch. In 

Appellees’ view, had Appellants properly supervised FCM 

and ensured compliance with the contract, Barkes’s answers 

during his screening would have resulted in additional 

preventive measures being taken. Of course, it is also true 

that Barkes did not self-report feelings of suicidal ideation, 

nor did he exhibit any outward signs of suicidality. But this 

serves only to highlight the factual nature of this dispute, 

which neither we nor the District Court on summary 

judgment are in the position to resolve. 

Based on our review of the summary judgment record, 

we conclude that there remain sufficient factual disputes to 

preclude a finding that Appellants are entitled to qualified 

immunity. 

IV.

For the reasons that we have discussed, Appellants are 

not entitled to qualified immunity. Accordingly, we will 

affirm the District Court’s order and remand for trial. 
Karen Barkes, et al. v. First Correctional Medical Inc., et al.

No. 12-3074

HARDIMAN, Circuit Judge.

Today the Court holds that two of the most senior 

executives in the Delaware prison system must stand trial for 

the suicide of Christopher Barkes. In my view, this decision is 

a classic case of holding supervisors vicariously liable, a 

practice the Supreme Court proscribed in Ashcroft v. Iqbal, 

556 U.S. 662 (2009). The majority accomplishes this feat by 

attempting to salvage the supervisory liability doctrine we 

created twenty years before Iqbal in Sample v. Diecks, 885 

F.2d 1099 (3d Cir. 1989). As I shall explain, Sample has been 

abrogated by Iqbal. And even assuming I am wrong about 

Sample’s abrogation, Defendants Taylor and Williams are

still entitled to summary judgment because Barkes has not

complied with Sample’s requirement that she identify a 

specific supervisory practice or procedure that they failed to 

employ. I respectfully dissent. 

I

Christopher Barkes arrived at the HRYCI around 2:45 

p.m. on Saturday, November 13, 2004, following his arrest by 

Wilmington Police for a probation violation. Normally, 

Barkes would have been taken promptly to the Violation of 

Probation Center in Sussex County. Because it was the 

weekend, however, the HRYCI held him as a courtesy 

because the DOC’s transportation department ran only on 

weekdays. The HRYCI booked and processed Barkes as it 

would any other inmate, but did not admit him; rather, it held 

him in the booking and receiving area. 
2

As part of Barkes’s intake, the DOC’s medical services 

contractor, First Correctional Medical, Inc. (FCM), conducted 

a standard medical screening. In doing so, FCM gathered 

Barkes’s medical history and checked his vitals and physical 

health. FCM also administered a mental health screening 

intended to, inter alia, prevent suicides. FCM’s suicide 

prevention screening test listed seventeen risk factors. Some 

of those factors automatically triggered suicide protection 

measures. For example, if an inmate appeared to be under the 

influence of alcohol or drugs and showed signs of withdrawal 

or mental illness, FCM would immediately initiate its suicideprevention protocols and notify a physician. Otherwise, FCM 

initiated its protocols if the inmate’s screening noted eight or 

more of the seventeen risk factors.1

A licensed practical nurse employed by FCM 

conducted Barkes’s medical screening about fifteen minutes 

after his arrival. At that time, he did not appear depressed, 

anxious, afraid, or angry, and the arresting officers did not 

believe Barkes was a suicide risk. Barkes told the nurse that 

he was not thinking about killing himself. Barkes did admit to 

a prior suicide attempt in 2003, but he failed to disclose three 

other suicide attempts, one of which was just two months 

 

1

FCM modeled its suicide prevention screening form 

on a sample appended to the National Commission on 

Correctional Health Care’s (NCCHC) 1997 standards for 

prison health services. In 2003, the NCCHC published a new 

edition of its manual, but FCM continued using its form 

modeled on the 1997 manual. One year before Barkes’s 

suicide, the NCCHC accredited the HRYCI after reviewing 

FCM’s suicide prevention screening form. 
3

prior to his booking at HRYCI. Based on Barkes’s responses 

during the screening, only two of the seventeen suicide risk 

factors were indicated: a psychiatric history and a suicide 

attempt.

The HRYCI correctional staff monitored Barkes 

throughout Saturday night and Sunday morning. Officers 

delivered Barkes his breakfast at 8:00 a.m. He was lying 

awake on his bed when officers observed him at 10:45 a.m., 

10:50 a.m., and 11:00 a.m. Sometime between 11:00 a.m. and 

11:35 a.m. when they next checked on him, Barkes hanged 

himself. Officers immediately called FCM staff, who

attempted to resuscitate Barkes. 

None of the officers watching Barkes noticed anything 

unusual about him. 2The only sign that he had been 

contemplating suicide came in a phone call Barkes made to 

his wife the night before his death, in which he told her: “I 

can’t live this way anymore.” Although Barkes’s wife 

testified that she interpreted this comment as a suicidal threat, 

she did not advise anyone at the HRYCI of this comment or 

otherwise alert them that her husband was in distress. 

II

The claim at issue—that Barkes was subjected to cruel 

and unusual punishment in violation of the Eighth 

Amendment—is premised on the provision of constitutionally 

inadequate medical care by FCM. Specifically, Barkes

 

2

Those same officers were not blind to inmates who 

turned suicidal. In fact, earlier on the same morning that 

Barkes died, they transferred a different inmate to the 

infirmary for suicide prevention. 
4

challenges the adequacy of the supervision of FCM’s medical 

staff at the HRYCI. Dr. Tammy Kastre, the President and 

CEO of FCM, supervised FCM’s medical staff at all of 

Delaware’s correctional facilities. The DOC’s Bureau of 

Management Services supervised FCM and Dr. Kastre. The 

head of that bureau, Joyce Talley, was the DOC’s liaison to 

FCM.

3

Talley tasked her deputy chief, Kathy English, with 

some of the FCM oversight responsibilities. The formal 

responsibility for oversight over FCM’s compliance with its 

contract lay with the DOC’s Medical Review Committee, 

which Talley chaired and English co-chaired. Every month, 

the nine-member committee met with around four FCM 

representatives. The committee reviewed certain performance 

measures based on NCCHC standards, such as how long it 

took FCM to administer its health screening after new 

inmates were admitted. The committee also reviewed random 

chart audits. If the DOC had any concerns with FCM’s 

services, it raised them in those meetings. 

It is important to note that the liability of none of the 

persons or entities just mentioned is at issue in this appeal. 

Instead, Barkes seeks to hold two DOC executives liable: 

 

3

The majority contends that Talley “testified that she 

did not believe it to be her responsibility to ensure FCM’s 

compliance with NCCHC standards.” Maj. Transcript at 8–9. 

As Talley explained, she “managed the health care issues for 

inmates” by “working with the contracted vendor and through 

the [Medical Review Committee].” App. at 806. Any 

complaints about medical issues “would be presented to the 

MRC. It was as a group. We were a committee that would 

oversee the contract.” App. at 806. 
5

Commissioner Stanley Taylor (Talley’s supervisor) and 

HRYCI Warden Raphael Williams (who was outside the 

chain of supervision over FCM).

4

The parties agree that 

neither executive had any personal knowledge of Barkes 

before his death. In fact, Warden Williams was on vacation 

while Barkes was at the HRYCI. Commissioner Taylor was 

scarcely more involved in supervising FCM than Warden 

Williams; in fact, Delaware law empowered him to designate 

someone to administer the state’s medical services contract,

and he appointed Talley to discharge that duty. See Del. Code 

tit.11, § 6517(12). The essence of Barkes’s claims against 

Taylor and Williams is that despite the fact that others were 

responsible for supervising FCM, “the buck stops” at the top.5

 

4

FCM’s medical staff were not employees of the 

HRYCI and they did not report to Warden Williams. 

Williams’s “participation in health care” at the HRYCI was 

limited to “provid[ing] access, space, and security for 

[FCM’s] medical staff.” App. at 517. When Barkes’s lawyer 

asked Williams whether he “had any responsibilities for the 

adequate provision of health care to inmates,” he answered, 

“No. That was through management services. That’s where 

the responsibility lied.” App. at 517. Another time, Williams 

testified: “all those policies were by management services. 

They were tasked with ensuring that FCM followed through 

with their contractual obligations. That’s strictly through 

them.” App. at 792. 

5

The majority states that “Taylor’s termination letter 

to FCM indicates his awareness of FCM’s gross contractual 

non-compliance,” and that “[a] reasonable juror could draw 

from that evidence the conclusion that Appellants were aware 
6

When Barkes’s widow filed this lawsuit6in 2006, her 

complaint included two section 1983 claims against Taylor 

and Williams: (1) deliberate indifference to the conditions at 

the HRYCI; and (2) failure to supervise the DOC personnel

and failure to institute appropriate procedures.

7 United States 

District Court Judge Joseph Farnan granted Taylor and 

Williams summary judgment on both claims. Barkes’s 

deliberate indifference claim failed because she had not 

presented sufficient evidence of knowledge by Taylor and 

Williams of constitutionally inadequate medical conditions at 

the HRYCI. Her supervisory liability claim failed as a matter 

of law because she did not satisfy the threshold requirement 

for supervisory liability we established in Sample v. Diecks, 

885 F.2d 1099 (3d Cir. 1989), which requires a plaintiff to 

“identif[y] . . . a specific supervisory practice or procedure 

that [the supervisor] failed to employ.” Id. at 1118. 

 

of an unreasonable risk.” Maj. Transcript at 48. However, the 

District Court has already recognized that events occurring 

after Barkes’s death, such as Taylor’s 2005 letter terminating 

the DOC’s contract with FCM “cannot be probative of 

Commissioner Taylor’s or Warden William[s]’s awareness in 

2004 of a substantial risk.” App. at 83. 

6

Plaintiffs are Barkes’s widow, Karen, both in her 

personal and representative capacity, as well as his two 

daughters. For ease of reference, I refer to Plaintiffs 

collectively as “Barkes.” 

7 Not relevant to this appeal, the complaint also 

included a wrongful death claim against Taylor and Williams, 

upon which they were granted summary judgment. 
7

Several months after granting Taylor and Williams 

summary judgment, the District Court granted Barkes leave to 

file an amended complaint. The Court dismissed that first 

amended complaint for reprising the claims dismissed on 

summary judgment. Barkes filed a second amended 

complaint, which was dismissed for failure to state a claim. 

In 2010, following the retirement of Judge Farnan, 

Barkes’s case was reassigned to the Honorable Leonard Stark. 

Barkes filed a third amended complaint that again sought to 

hold Taylor and Williams liable under a theory of supervisory 

liability. Having already suffered a summary judgment on the 

claim that Taylor and Williams failed to supervise employees 

of the DOC, Barkes shifted gears to argue that they failed to 

supervise FCM. Once again, Taylor and Williams sought 

summary judgment, asserting qualified immunity for the first 

time. Barkes also filed a motion for summary judgment.

Before deciding the parties’ summary judgment 

motions, Judge Stark addressed Barkes’s separate motion to 

vacate the 2006 summary judgment and revive the Eighth 

Amendment and supervisory liability claims upon which 

Taylor and Williams had prevailed in 2006 before Judge 

Farnan. With respect to Barkes’s Eighth Amendment claim, 

the District Court held: 

Assuming, as Plaintiffs appear to argue, that 

deliberate indifference . . . can be shown by 

Defendants’ deliberate indifference to the 

medical needs of prisoners such as Barkes 

himself . . . the Court nonetheless concludes

that nothing alters the prior conclusions: a 

reasonable factfinder could not determine that 
8

Defendants were deliberately indifferent to the 

risk of suicide.

App. at 15. The District Court also upheld the 2006 summary 

judgment on Barkes’s supervisory liability claim for failure to 

supervise DOC personnel and failure to institute appropriate 

suicide prevention policies, concluding: “even assuming that 

the existing policy created an unreasonable risk of Eighth 

Amendment injury, there is still not sufficient evidence in the 

record from which a reasonable factfinder would conclude 

that Defendants were aware such an unreasonable risk was 

created and were indifferent to that risk.” App. at 16.

After upholding the 2006 summary judgment for want 

of evidence that Taylor and Williams were aware of and 

indifferent to an unreasonable risk of suicide, the District 

Court denied their motion for summary judgment on Barkes’s 

claim that they failed to supervise FCM. In doing so, as the 

majority implicitly acknowledges, see Maj. Typescript at 18,

the District Court erred in its application of Sample by failing 

to require Barkes to “identif[y] . . . a specific supervisory 

practice or procedure that [the supervisor] failed to employ.” 

Sample, 885 F.2d at 1118. That is a significant oversight, as 

this was the decisive element for Judge Farnan in deciding the 

earlier supervisory liability claim. Taylor and Williams now 

appeal that ruling, claiming qualified immunity because

Barkes did not allege a legally cognizable supervisory 

liability claim against them and that such a right was not 

clearly established.
9

III

A

I begin with the Supreme Court’s decision in Ashcroft 

v. Iqbal, 556 U.S. 662 (2009), which altered the legal 

landscape regarding supervisory liability. Iqbal sued U.S. 

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

Mueller, alleging that the conditions of his detention violated 

his constitutional rights. Iqbal claimed that Ashcroft and 

Mueller were “liable for knowledge and acquiescence in their 

subordinates’ use of discriminatory criteria to make 

classification decisions among detainees.” Id. at 677 (internal 

quotation marks deleted). “That is to say, [Iqbal] believe[d] a 

supervisor’s mere knowledge of his subordinate’s 

[unconstitutional] discriminatory purpose amounts to the 

supervisor’s violating the Constitution.” Id. The Court 

“reject[ed] [the] argument,” ruling that “a plaintiff must plead 

that each Government-official defendant, through the 

official’s own individual actions, has violated the 

Constitution.” Id. at 676–77. The Court continued: “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.” Id. at 677.

Since Iqbal, supervisory liability claims must spring 

from “actions” or “misconduct,” Iqbal, 556 U.S. at 676, 677;

the mere fact that the supervisor occupied a position of 

authority is insufficient. Accordingly, the overwhelming 

weight of authority requires plaintiffs to establish the 

supervisor’s personal involvement in his subordinates’ 

misfeasance. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 
10

2012) (en banc); Carnaby v. City of Houston, 636 F.3d 183, 

189 (5th Cir. 2011); Porro v. Barnes, 624 F.3d 1322 (10th 

Cir. 2010); Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th 

Cir. 2009) (en banc). But see Starr v. Baca, 652 F.3d 1202

(9th Cir. 2011) (upholding failure to supervise claim when 

supervisor was not personally involved, but bore statutory 

responsibility for plaintiff’s injury). The courts of appeals 

requiring the supervisor’s personal involvement—i.e., the 

Fifth, Seventh, Eighth, and Tenth Circuits—have upheld 

supervisory liability claims when the challenged policy 

originates with the supervisor or he contributes to its 

unlawfulness. See, e.g., Dodds v. Richardson, 614 F.3d 1185, 

1190 (10th Cir. 2010) (challenging sheriff’s accession to 

unlawful policy of denying bond after hours); T.E. v. Grindle, 

599 F.3d 583 (7th Cir. 2010) (challenging school principal’s 

active concealment of abuse reports). None of those courts of 

appeals has upheld a so-called “failure-to” claim, in which 

subordinates violate the law while the supervisor fails to take 

remedial action. 

Decisions of both the Seventh and Tenth Circuits 

illustrate the fundamental dichotomy between cases involving 

the supervisors’ personal involvement on the one hand and 

those relying on the supervisor’s position of authority. For 

example, the Seventh Circuit upheld a supervisory liability 

claim in T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010), when 

the plaintiffs “allege[d] that [the principal was] liable for 

actively concealing reports of abuse and creating an 

atmosphere that allowed abuse to flourish. In other words, 

they argue[d] that [the principal’s] own actions deprived them 

of their constitutional right.” Grindle, 599 F.3d at 590
11

(emphasis added).

8

Significantly, the plaintiffs’ theory did not 

rely on the “mere failure of supervisory officials to act.” Id.

The allegations survived Iqbal “[b]ecause plaintiffs seek to do 

no more than hold [the principal] liable ‘for . . . her own 

misconduct.’” Id. (quoting Iqbal).

Two years after Grindle was decided, the Seventh 

Circuit, sitting en banc, confronted a failure-to-supervise 

claim in Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en 

banc). Vance sued Secretary of Defense Donald Rumsfeld, 

alleging that “[Secretary Rumsfeld] received reports that his 

subordinates sometimes [unlawfully] used [harsh 

interrogation] techniques . . . and . . . he did not do enough to 

bring interrogators under control.” Id. at 203. The Seventh 

Circuit recognized that after Iqbal, “[t]he supervisor can be 

liable only if he wants the unconstitutional or illegal conduct 

to occur.” Id. For Vance’s deliberate indifference claim, that 

meant he “would need to allege that Rumsfeld knew of a 

substantial risk to security contractors’ employees, and 

ignored that risk because he wanted plaintiffs (or similarly 

situated persons) to be harmed.” Id. at 204. This was because, 

absent that showing, supervisory liability claims become 

claims for vicarious liability. Id. “The head of any large 

bureaucracy receives reports of misconduct. . . . But heads of 

organizations have never been held liable on the theory that 

they did not do enough to combat subordinates’ misconduct, 

and the Supreme Court made it clear in Iqbal that such 

theories of liability are unavailing.” Id. at 204–05. For these 

 

8 Contrary to the majority’s view of the case, the 

Grindle plaintiffs alleged much more than that the supervisorprincipal “allow[ed] a subordinate teacher to continue 

working.” Maj. Typescript at 23.
12

reasons, the Seventh Circuit granted Secretary Rumsfeld 

qualified immunity.9

 

9

The majority distinguishes Vance on the basis that 

Secretary Rumsfeld’s subordinates violated a federal statute 

instead of the Eighth Amendment. Although it is true that 

Vance did not involve an Eighth Amendment claim, its 

analysis on this point relied exclusively on Eighth 

Amendment case law. It goes without saying that if both a 

federal statute and the Eighth Amendment embrace the same 

state of mind, the analysis is identical. The majority and 

Vance both apply Farmer v. Brennan, 511 U.S. 825 (1994), a 

fact obscured by the majority’s removal of “But Farmer v. 

Brennan, holds that” in quoting Vance. See Maj. Typescript at 

36 n.10. Vance’s unaltered text explains:

The supervisor must want the forbidden 

outcome to occur. Deliberate indifference to a 

known risk is a form of intent. But Farmer v. 

Brennan, 511 U.S. 825 (1994), holds that, to 

show scienter by the deliberate-indifference 

route, a plaintiff must demonstrate that the 

public official knew of risks with sufficient 

specificity to allow an inference that inaction is 

designed to produce or allow harm.

701 F.3d at 204. One sentence later, the court restated its 

reliance on Farmer:

Prisons are dangerous places, and misconduct 

by both prisoners and guards is common. 

Liability for wardens would be purely vicarious. 
13

Like the Seventh Circuit’s decision in Grindle, the 

Tenth Circuit’s decision in Dodds v. Richardson, 614 F.3d 

1185 (10th Cir. 2010), did not involve a “failure-to” claim. 

That case involved a sheriff who violated a state law 

requiring sheriffs to accept bonds for “persons jailed at times 

other than the normal working hours.” Id. at 1190. The sheriff

acceded to a county clerk’s non-binding policy of forbidding 

persons charged with felonies from posting bond after hours. 

Id. The Tenth Circuit held that Iqbal limited section 1983 

liability to “defendants whose own individual actions cause a 

constitutional deprivation because it requires plaintiffs prove 

each defendant took some act with the constitutionally 

applicable state of mind that caused the alleged constitutional 

violation.” Id. at 1200 (emphasis added). It upheld the claim 

because the plaintiff “presented facts that establish personal 

involvement” by “show[ing] [the sheriff] may have played 

more than a passive role in the alleged constitutional 

 

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 anywhere, [plaintiffs] would need to 

allege that Rumsfeld knew of a substantial risk 

to security contractors’ employees, and ignored 

that risk because he wanted plaintiffs (or 

similarly situated persons) to be harmed.

701 F.3d at 204.
14

violation—he may have deliberately enforced or actively 

maintained the policies in question at the jail.” Id. at 1204.10

Unlike the direct involvement alleged in Dodds, the 

Tenth Circuit was presented with a failure-to-supervise claim

in Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010). There, an 

 

10 The majority warns that this “rule would have the 

practical effect of requiring that a supervisor have personal 

knowledge of an individual inmate, that inmate’s particular 

serious medical need, and of the prison staff’s failure to treat 

that need,” Maj. Transcript at 32. In fact, Dodds demonstrates 

the incorrectness of the majority’s supposition because there 

the “Plaintiff [did] not allege [the Supervisor-]Defendant was 

one of the jail employees who told him and the individuals 

who inquired about posting bail on his behalf that he could 

not post the bail . . . . Nor [did the] Plaintiff contend [the 

Supervisor-]Defendant personally instructed those employees 

to refuse to accept bail from [the] Plaintiff.” Dodds, 614 F.3d 

at 1194.

Separately, the majority attacks this rule with a 

hypothetical from Judge Hamilton’s dissent from Vance in 

which “a local police chief or even the FBI director issued a 

policy that authorized the use of deadly force,” which policy 

“would be clearly unconstitutional.” Maj. Transcript at 34 

(quoting Vance, 701 F.3d at 223 (Hamilton, J., dissenting)). 

This hypothetical clearly survives Dodds because the policy’s 

unconstitutional quality originates with the supervisor. Judge 

Hamilton’s hypothetical is poles apart from Barkes’s 

complaint, which alleges FCM’s policies—not the DOC’s—

caused the HRYCI’s healthcare to deteriorate below the 

constitutional minimum. 
15

inmate who was tasered three times by correctional officers 

brought a supervisory liability action against the county 

sheriff. Id. at 1324–25. The sheriff did not approve the 

tasering and was not present when it occurred. Id. at 1327.

Consistent with Dodds, the Tenth Circuit held that “[t]o 

establish a violation of § 1983 by a supervisor, as with 

everyone else, then, the plaintiff must establish a deliberate, 

intentional act on the part of the defendant to violate the 

plaintiff’s legal rights.” Id. at 1327–28 (quotations and 

alterations omitted) (emphasis added); see also Dodds, 614 

F.3d at 1195 (“[T]he plaintiff must establish a deliberate, 

intentional act by the supervisor to violate constitutional 

rights.”). The court rejected the claim against the sheriff 

“because there [was] no evidence of his direct personal 

responsibility for the force used.” Id. at 1326 (emphasis in 

original).

Like the Seventh and Tenth Circuits, the Fifth and 

Eighth Circuits have rejected similar “failure-to” claims after 

Iqbal. In Nelson v. Correctional Medical Services, 583 F.3d 

522 (8th Cir. 2009) (en banc), a prison guard shackled the 

plaintiff’s legs during labor, causing permanent injuries while 

she gave birth. The plaintiff sued the director of the Arkansas 

Department of Correction, for “[failure] to ensure that proper 

policies and customs were implemented with respect to the 

restraint of female inmates in labor.” Id. at 527. Sitting en 

banc, the Eighth Circuit held that under Iqbal a supervisor is 

“liable only if he personally displayed deliberate indifference

to the hazards and pain resulting from shackling an inmate 

such as [Plaintiff] during the final stages of labor.” Id. at 535 
16

(emphasis added). 11 The court confined its analysis to the 

polices actually promulgated by the Department of Correction 

under the director’s watch, concluding that the policies 

showed “administrative concern for the health and safety of 

pregnant inmates.” Id. at 536. 12 Noting the absence of the 

commissioner’s “personal involvement,” the Eighth Circuit 

granted qualified immunity. Id. On this point, the en banc 

court was unanimous. Id. at 536 (Riley, J., concurring in part 

and dissenting in part). The Fifth Circuit has likewise

narrowed supervisory liability to conform to Iqbal: “Beyond 

[the supervisor’s] own conduct, the extent of his liability as a 

supervisor is similar to that of a municipality that implements 

 

11 The Eighth Circuit reiterated this point in Whitson v. 

Stone County Jail, 602 F.3d 920 (8th Cir. 2010), when it 

stated that prison supervisors can be liable on an Eighth 

Amendment claim “only if they personally displayed 

deliberate indifference to the risk” of a constitutional 

deprivation. Id. at 927–28. 

12 Just as Nelson approved of the Arkansas Department 

of Correction’s policies expressed in its regulations, we 

would not hesitate to approve of the Delaware Department of 

Correction’s policy expressed in its contract that requires 

FCM “to implement ‘Best Practices’ from State Correctional 

Services” for mental health care if Barkes challenged the 

DOC’s policies. App. at 138. That analysis is unnecessary, 

however, because Barkes does not challenge the DOC’s 

policies.
17

an unconstitutional policy.” Carnaby v. City of Houston, 636 

F.3d 183, 189 (5th Cir. 2011).

13

The Ninth Circuit’s decision in Al-Kidd v. Ashcroft,

580 F.3d 949 (9th Cir. 2009), overruled on other grounds, 

131 S. Ct. 2074 (2011), aligns with these authorities. In that 

case, the government detained the plaintiff under the authority 

of the federal material witness statute and held him for 

suspected terrorist activity. The plaintiff brought a 

supervisory liability action against Attorney General John 

Ashcroft alleging two violations of the law. First, that 

Ashcroft “purposefully used the material witness statute” to 

unlawfully detain persons and that Ashcroft “designed and 

implemented” this policy. Id. at 957, 976. 14 That claim 

 

13 The First Circuit’s pre-Iqbal case law already 

required “an affirmative link between the behavior of a 

subordinate and the action or inaction of his supervisor . . . 

such that the supervisor’s conduct led inexorably to the 

constitutional violation.” Soto-Torres v. Fraticelli, 654 F.3d 

153, 158 (1st Cir. 2011) (quoting Pineda v. Toomey, 533 F.3d 

50, 54 (1st Cir. 2008)) (internal quotation marks omitted); see 

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

2009) (quoting Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st 

Cir. 1999)). Whether this standard satisfies Iqbal remains a 

question of first impression for the First Circuit, however. 

Soto-Torres, 654 F.3d at 158 n.7; Maldonado v. Fontanes, 

568 F.3d 263, 274 n.7 (1st Cir. 2009).

14 The majority reads Al-Kidd as “suggest[ing] that 

under Iqbal the United States Attorney General could be 

liable for knowingly ‘fail[ing] to act in the light of even 

unauthorized abuses.’” Maj. Typescript at 21. In fact, the 
18

survived Ashcroft’s qualified immunity defense because,

“unlike in Iqbal, these [were] not bare allegations that the 

Attorney General ‘knew of’ the policy. Here, the complaint 

contain[ed] allegations that plausibly suggest that Ashcroft 

purposely instructed his subordinates to bypass the plain 

reading of the statute.” Id. at 976. The second supervisory 

liability claim sought to hold Ashcroft liable for subjecting 

the plaintiff to “unreasonably punitive conditions of 

confinement” during his detention. Id. at 957. The Ninth 

Circuit granted Ashcroft qualified immunity on this claim 

because “the complaint [did] not allege any specific facts—

such as statements from Ashcroft or from high ranking 

officials in the DOJ—establishing that Ashcroft had personal 

involvement in setting the conditions of confinement.” Id. at 

978. Neither claim required the court to decide whether the 

“knowing failure to act standard” survived Iqbal, and it 

reserved judgment on that question. Id. at 976 n.25.15

 

Ninth Circuit took pains to ensure that its decision was not 

read for that proposition: “We need not address whether [the 

‘knowing failure to act’ standard survived Iqbal] because alKidd plausibly pleads ‘purpose’ rather than just ‘knowledge’ 

to impose liability on Ashcroft.” Al-Kidd v. Ashcroft, 580 

F.3d 949, 976 n.25 (9th Cir. 2009).

15 Although the Al-Kidd majority explained that its 

decision relied on the plaintiff’s pleadings of purpose and not 

a failure to act, Judge Bea perceived otherwise and dissented 

from the decision on this point, saying “it is doubtful that the 

majority’s knowing failure to act standard survived Iqbal.” 

580 F.3d at 992 n.13 (Bea, J., dissenting). 
19

When the Ninth Circuit faced a “failure-to” claim in

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

the approaches taken by the Fifth, Seventh, Eighth, and Tenth 

Circuits. Contrary to the other four courts of appeals, the 

Ninth Circuit upheld an Eighth Amendment supervisory

liability claim against a sheriff “because he knew or should

have known about the dangers in the [jail], and . . . was 

deliberately indifferent to those dangers.” Id. at 1204–05. The 

plaintiff’s complaint contained detailed allegations 

concerning the sheriff’s knowledge of his subordinates’ 

unlawfulness.16 In determining the sheriff’s culpability for his 

 

16 It is worth noting that Barkes’s allegations of 

knowledge by Taylor and Williams come nowhere near the 

facts averred by the Starr plaintiff: 

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. 

652 F.3d at 1216. On the question of knowledge, Barkes 

alleges merely that Taylor and Williams “were aware that the 

suicide rate in Delaware prisons was above the national 

average,” that they knew “jailed detainees have a higher 

incidence of suicide than incarcerated inmates” but “there 
20

inaction, however, the Court permitted the claim to go 

forward because a state statute held the sheriff “answerable 

for the prisoner’s safekeeping.” Id. at 1208. In a vigorous 

dissent, Judge Trott claimed that the “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.” Id. at 1217 (Trott, J., dissenting). 

In his view, “simply alleging generally that the Sheriff is 

answerable for the prisoner’s safe-keeping doesn’t cut it.” 

Id.17

 

was only one suicide prevention policy applicable to both,” 

and that both were “aware that the first twenty-four hours of a 

jailed detainee’s detention were a time of high-suicide risk.” 

App. at 171–72.

17 Although no statute holds Taylor and Williams 

responsible for medical conditions at the HRYCI, Judge 

Trott’s observations apply equally well to this appeal:

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.”

Starr, 652 F.3d at 1219 (Trott, J., dissenting).
21

B

Barkes’s allegations are inadequate under any of our 

sister circuits’ interpretations of Iqbal. Barkes argues that 

FCM acted unlawfully in providing medical care at the 

HRYCI, and she would hold Taylor and Williams liable 

because they allegedly knew that FCM provided 

constitutionally inadequate medical care and failed to cure 

FCM’s deficiencies. But nothing in the pleadings alleges that 

Taylor and Williams “personally displayed deliberate 

indifference,” Nelson, 585 F.3d at 535, committed a 

“deliberate, intentional act,” Porro, 624 F.3d at 1327–28; 

Dodds, 614 F.3d at 1195, or “wanted plaintiffs (or similarly 

situated persons) to be harmed.” Vance, 701 F.3d at 204. Nor 

does Barkes challenge any of the policies promulgated by the 

DOC. In fact, she does the opposite, citing with approval the 

DOC’s contract requiring FCM to use “[b]est [p]ractices” for 

mental health care as proof of wrongdoing. App. at 138. 

Barkes has alleged nothing beyond knowledge on the part of

Taylor and Williams. She complains that Taylor spent “‘very 

little’ time on prison health care issues, delegating the 

responsibility to others.” App. at 172. But after Iqbal, that 

fact alone merits a dismissal because Barkes must establish 

that Taylor and Williams “played more than a passive role in 

the alleged constitutional violation.” Dodds, 614 F.3d at 

1204. Claims brought because—in Barkes’s words—the 

supervisor “presided over a system” fall well short of the 

standard established in Iqbal. App. at 745.

Barkes’s claim fails even under the Ninth Circuit’s 

approach in Starr. That opinion applied a pure deliberate 

indifference standard without a personal involvement 

requirement. Unlike in Starr, here no statute holds either 

Commissioner Taylor or Warden Williams “answerable” for 
22

medical care in Delaware prisons. In fact, a Delaware statute 

does the opposite insofar as it empowered Taylor to appoint a 

designee to administer the medical services contract. See Del. 

Code tit.11, § 6517(12). He did just that, charging the DOC’s 

bureau of management services with this duty. And as for 

Warden Williams, Barkes’s claim is completely unsupported 

because he had no supervisory authority over FCM. FCM 

“answer[ed]” to Talley, but not to Taylor or Williams. See 

Starr, 652 F.3d at 1208. Barkes might have a cognizable 

supervisory liability suit against Talley under Starr, but not 

against two senior executives who did not supervise FCM.

Unsurprisingly, when both Judges Farnan and Stark viewed 

Barkes’s allegations through a pure deliberate indifference 

lens, they too concluded that “a reasonable factfinder could 

not determine that Defendants were deliberately indifferent to 

the risk of suicide.” App. at 15, 82–82. 

C

In light of Iqbal, we must also overrule the framework 

we adopted for supervisory liability claims in Sample v. 

Diecks, 885 F.2d 1099 (3d Cir. 1989). The absence of 

deliberate indifference has not proven fatal to Barkes’s claim 

because the majority has determined that Barkes’s claim 

should be measured not by a pure deliberate indifference 

standard but by Sample, which enunciated a test unique to the 

supervisory context. The majority upholds Sample, noting

that our old supervisory liability test already required the 

plaintiff to show deliberate indifference. Maj. Typescript at 

23–24. True though that statement is, it fails to recognize that

Sample’s version of deliberate indifference differs markedly 

from the subjective version of deliberate indifference required 

under the Eighth Amendment and omits the personal 

involvement requirement that all but one of our sister circuits 
23

have required. First, Sample does not require the supervisor’s 

actual knowledge. Its version of deliberate indifference is 

objective, Sample, 885 F.2d at 1118, meaning that a plaintiff 

could establish deliberate indifference by establishing that the 

supervisor should have known of the excessive risk to inmate 

health and safety even if the plaintiff admits the supervisor 

actually had no such awareness. 

Sample’s objective quality is patent, insofar as it 

fashioned a test based on the objective deliberate-indifference 

standard that the Supreme Court established for municipal 

liability in City of Canton v. Harris, 489 U.S. 378 (1989). In 

Sample, we actually grappled with the fact that the record 

before us did not indicate that the supervisor had actual 

knowledge of the allegedly constitutionally inadequate prison 

procedures. Sample, 885 F.2d at 1118. But we answered that 

under Canton,

this absence of prior incidents and knowledge 

thereof is not necessarily fatal to Sample’s case. 

As we have noted, [Canton] observed that there 

are situations in which the risk of 

constitutionally cognizable harm is so great and 

so obvious that the risk and the failure of 

supervisory officials to respond will alone 

support findings of the existence of an 

unreasonable risk, of knowledge of that 

unreasonable risk, and of indifference to it.

Id. The majority admits that this part of the test we expressed 

in Sample is untenable today. Maj. Typescript at 31–32. 

Nevertheless, after denuding Sample of its objective quality, 

the majority upholds a test that does not require the plaintiff 

to plead personal involvement by the supervisor. Under 
24

Sample, the plaintiff need only establish a “supervisory 

practice or procedure that [the supervisor] failed to employ.” 

Sample, 885 F.2d at 1118. That is a far cry from the 

“personally displayed deliberate indifference,” Nelson, 585 

F.3d at 535, or “deliberate, intentional act,” Porro, 624 F.3d 

at 1327–28; Dodds, 614 F.3d at 1195, that our sister circuits 

have required after Iqbal. 

“Simply put, there’s no special rule of liability for 

supervisors. The test for them is the same as the test for 

everyone else.” Porro, 624 F.3d at 1328. None of the cases 

discussed—not even the Ninth Circuit’s decision in Starr—

has upheld a special test that applies only to supervisors. The 

majority disagrees, saying Sample’s “essence” is deliberate 

indifference, Maj. Transcript at 24, so we should continue to 

treat supervisors differently. Only by doing so, can the 

majority circumvent the District Court’s prior holdings that 

the record does not show deliberate indifference. App. at 15.18

Sample’s unique combination of elements applies only to the 

supervisory form of deliberate indifference and permits

Barkes to take her claim to trial without alleging Taylor and 

Williams’s personal involvement. 

 

18 The majority argues Barkes’s earlier claims are 

distinct, Maj. Transcript at 31, but it is a distinction without a 

difference. Whether Barkes argues Taylor and Williams 

failed to supervise DOC staff (as in the earlier claim) or FCM 

(as in the claim at issue now), knowledge and indifference is 

the common thread, and the fact that “there is still not 

sufficient evidence in the record from which a reasonable 

factfinder would conclude that Defendants were aware such 

an unreasonable risk was created and were indifferent to that 

risk” is fatal. App. at 16.
25

With due respect to my colleagues’ concern that Iqbal 

has “bedeviled” the courts of appeals, Maj. Typescript at 20, I 

perceive near unanimous agreement among our sister circuits.

Barkes’s claim plainly seeks to hold Taylor and Williams 

vicariously liable for, in Barkes’s words, “presid[ing] over a 

system,” App. at 745, that she deems unlawful. Today’s 

decision invites plaintiffs to sue senior government officials 

whenever prison guards use force against an inmate or police 

officers mistreat a suspect. Regrettably, it exposes 

Commissioner Taylor and Delaware’s prison wardens to 

lawsuits from any Delaware inmate with a complaint about 

FCM’s services. “In an ideal world, [supervisors] would have 

achieved full compliance with the [law], but a public 

official’s inability to ensure that all subordinate . . . 

employees follow the law has never justified personal 

liability. . . . [S]upervisors are not vicariously liable for their 

subordinates’ transgressions.” Vance, 701 F.3d at 203. 

For these reasons, I would reverse the District Court’s 

denial of Taylor and Williams’s motion for summary 

judgment on qualified immunity. See Dodds v. Richardson, 

614 F.3d 1185, 1194 (10th Cir. 2010) (explaining that 

questions of supervisory liability, though part of the substance 

of a section 1983 claim, are also part of the qualified 

immunity analysis); al-Kidd v. Ashcroft, 580 F.3d 949, 964–

65 (9th Cir. 2009) (same). None of the courts that have 

considered Iqbal have applied a standard like Sample’s, as the 

majority does today. The District Court’s prior decision that 

Barkes cannot prove Taylor and Williams’s deliberate 

indifference combined with the absence of any allegation of 

personal involvement on their part, entitles them to qualified 

immunity. 
26

IV

Even had Iqbal not substantially changed the law of 

supervisory liability and had Sample remained good law, I

would still hold that Taylor and Williams are entitled to 

summary judgment. According to Sample, the test for 

supervisory liability is as follows:

Based on City of Canton, we conclude that a 

judgment could not properly be entered against 

[the supervisor] in this case based on 

supervisory liability absent an identification by 

[the plaintiff] of a specific supervisory practice 

or procedure that [the supervisor] failed to 

employ and specific findings by the district 

court that (1) the existing custom and practice 

without that specific practice or procedure 

created an unreasonable risk of prison 

overstays, (2) [the supervisor] was aware that 

this unreasonable risk existed, (3) [the 

supervisor] was indifferent to that risk, and (4) 

[the subordinate’s constitutional tort] resulted 

from [the supervisor’s] failure to employ that 

supervisory practice or procedure.

885 F.2d at 1118. The District Court erred by omitting 

Sample’s threshold prerequisite, namely, that the plaintiff 

identify “a specific supervisory practice or procedure that [the 

supervisor] failed to employ.” Id.; accord Maj. Typescript at 

18. It applied only Sample’s enumerated elements without 

ever requiring Barkes to identify a supervisory practice and 

misstated Sample’s causation element by omitting the 

identified supervisory practice. Judge Farnan properly applied 

Sample when he granted Taylor and Williams summary 
27

judgment on Barkes’s first supervisory liability claim, and his 

analysis turned on Sample’s threshold element. And although 

the majority has accurately spelled out the Sample test—

implicitly recognizing the District Court’s error—it errs in 

concluding that Barkes has satisfied this essential element. 

Barkes’s complaint does not even attempt to make the 

identification required by Sample. Nevertheless, according to 

the majority:

Appellees claim that Taylor and Williams 

should have enforced FCM’s compliance with 

their contractual obligations, specifically by 

requiring FCM to adhere to up-to-date NCCHC 

standards, by properly administering the 

standards to which they adhered, and by 

requiring mental health screenings to have been 

conducted by a qualified mental health 

professional rather than an unqualified LPN, 

thus satisfying Sample’s threshold requirement.

Maj. Typescript at 46. The majority does not say where 

Barkes makes this contract enforcement allegation and my 

review of the pleadings failed to locate it either. 

But even if Barkes had made this allegation, her

Sample claim would fail because “enforcing” a contract is not 

“a supervisory practice or procedure.” Sample’s threshold

element forces the plaintiff to explain not just that the 

supervisor failed to act, but also what he should have done 

differently. As we cautioned in Sample:

[I]t is not enough for a plaintiff to argue that the 

constitutionally cognizable injury would not 
28

have occurred if the superior had done more 

than he or she did. The district court must insist 

that [the plaintiff] identify specifically what it is 

that [the supervisor] failed to do that evidences 

his deliberate indifference. Only in the context 

of a specific defalcation on the part of the 

supervisory official can the court assess whether 

the official’s conduct evidenced deliberate 

indifference and whether there is a close causal 

relationship between the “identified deficiency” 

and the “ultimate injury.” 

885 F.2d at 1118. Barkes’s contention that Taylor and 

Williams should have enforced the contract fails to meet our 

specificity requirements. The relevant question is: what

“supervisory practice or procedure” should Taylor or

Williams have implemented to enforce the contract? 

Commissioner Taylor already tasked a bureau with enforcing

the FCM contract, and Warden Williams had no supervisory 

responsibilities over FCM. Pursuant to Delaware law, Joyce 

Talley, the chief of the DOC’s Bureau of Management 

Services, supervised FCM. Barkes’s utter failure to satisfy 

this element of Sample’s test underscores the fact that neither 

Taylor nor Williams supervised FCM. Barkes has targeted 

them merely as top-level DOC executives. 

Even had Sample survived Iqbal, Taylor and Williams 

would be entitled to summary judgment. Judge Farnan 

granted them summary judgment on the first supervisory 

liability claim because Barkes failed to meet Sample’s 

threshold requirement. Barkes did not allege in her third 

amended complaint a specific supervisory practice that Taylor 

and Williams should have performed, and any allegations that 

Taylor and Williams should have “enforced” the contract 
29

would do nothing to cure that omission. The District Court

should have granted Taylor’s and Williams’s motion for 

summary judgment on the supervisory liability claim for the 

same reasons Judge Farnan did on the earlier supervisory 

liability claim.

V

Finally, I disagree with the majority’s formulation of 

the constitutional right at issue. In addition to challenging the 

viability of supervisory liability after Iqbal, Taylor and 

Williams argued that Barkes’s asserted right was not “clearly 

established.” If true, that would also entitle them to qualified 

immunity. See Reichle v. Howards, 132 S. Ct. 2088, 2093 

(2012). They argued that our case law had not clearly 

established a right “to supervision of the medical vendor by 

the prison administrators.” Br. of Appellants at 19. The 

majority responds by stating “that the right [Barkes] assert[s], 

properly defined, is this: an incarcerated person’s right to the 

proper implementation of adequate suicide prevention 

protocols.” Maj. Typescript at 40. This is problematic for two 

reasons. First, the description of a right to suicide prevention 

protocols does not address Taylor and Williams’s argument 

that there is no clearly established right to supervision over 

those charged with developing and carrying out suicide 

prevention protocols since this supposed right concerns 

FCM’s responsibilities.

19

 

19 I disagree with the majority’s belief that Spruill v. 

Gillis, 372 F.3d 218 (3d Cir. 2004), established a right to 

supervision for a simple reason: Spruill was not a supervisory 

liability case, and the defendant had no supervisory 

relationship with the medical staff.
30

The more concerning error is that the majority’s 

articulation of the constitutional right departs from the Eighth 

Amendment case law. The majority claims this right “to the 

proper implementation of adequate suicide prevention 

protocols,” Maj. Typescript at 40, is established in our 

precedents, but it cites no case for this proposition, and I have 

found none. Indeed, the majority’s description of a right to 

“adequate suicide prevention protocols” (and for that matter, 

Barkes’s contention that FCM’s administration of the 

NCCHC’s 1997 standards by an LPN amounts to cruel and 

unusual punishment) would appear to be inconsistent with the 

weight of authority on this question. See, e.g., Jenkins v. Cnty. 

of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009) (plaintiff’s 

allegations “that the Detention Center’s intake procedures 

were insufficient to identify certain types of serious injuries” 

failed because “the range of acceptable medical care is broad. 

Jailers bear only the responsibility to identify medical needs 

that are so obvious that even a layperson would easily 

recognize the necessity for a doctor's attention.”); Brumfield 

v. Hollins, 551 F.3d 322, 328 (5th Cir. 2008) (granting 

defendants summary judgment where jail had no written 

policy but an oral policy required officers to place a detainee 

in an observation cell if the detainee appeared suicidal); 

Belcher v. Oliver, 898 F.2d 32, 34–35 (4th Cir. 1990) (“The 

general right of pretrial detainees to receive basic medical 

care does not place upon jail officials the responsibility to

screen every detainee for suicidal tendencies.”).

Even if it were true that clearly established law 

mandated “adequate suicide prevention protocols,” the 

majority’s requirement of the “proper implementation” of 

those protocols plainly violates the basic proposition that the 

Eighth Amendment does not impose liability for negligence.
31

See Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d 

Cir. 1991). “Failure to follow written procedures does not 

constitute per se deliberate indifference. If this were so, such 

a rule would create an incentive for jails to keep their policies 

vague, or not formalize policies at all.” Luckert v. Dodge 

Cnty., 684 F.3d 808, 819 (8th Cir. 2012) (granting supervisor 

qualified immunity when the prison’s “actual practice in 

dealing with suicide intervention . . . did not reflect [the 

prison’s] written policy”).

* * *

Barkes has targeted Taylor and Williams for 

“presid[ing] over a system.” App. at 745. This runs afoul of 

Iqbal and the substantial weight of authority among our sister 

courts, which holds that supervisors like Taylor and Williams 

cannot be liable under section 1983 absent their personal 

involvement. Even under the Ninth Circuit’s approach, 

Barkes would need to sue the person actually supervising 

FCM and cannot recover against the DOC’s top executives. 

None of the courts of appeals since Iqbal have upheld a 

supervisory liability test like Sample’s, which treats

supervisors differently from everyone else.

Even assuming arguendo that Sample remains good 

law, Barkes’s allegation that Taylor and Williams failed to 

enforce a contract with FCM does not satisfy Sample’s 

threshold element. Finally, the “right to the proper 

implementation of adequate suicide prevention protocols” is a 

departure from Eighth Amendment case law that had never 

been established before today. Because Taylor and Williams 

are entitled to summary judgment on the grounds of qualified 

immunity, I respectfully dissent.