FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DION STARR,  No. 09-55233

Plaintiff-Appellant, D.C. No.

v. 2:08-cv-00508-

GW-SH COUNTY OF LOS ANGELES; LOS  Central District of ANGELES COUNTY SHERIFFS

California, DEPARTMENT; LEROY BACA, Sheriff;

Los Angeles official capacity,

Defendants-Appellees. ORDER 

Filed October 5, 2011

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

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

Order;

Dissent by Judge O’Scannlain

ORDER

A judge of the court called for a vote on the petition for

rehearing en banc. A vote was taken, and a majority of the

active judges of the court failed to vote for en banc rehearing.

Fed. R. App. P. 35(f).

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

Northern District of California, sitting by designation. 

18743
O’SCANNLAIN, Circuit Judge, joined by GOULD,

TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and

IKUTA, Circuit Judges, dissenting from the order denying

rehearing en banc:

A mere two years ago, the Supreme Court rejected the

argument that Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), applied only to antitrust and similarly complex commercial cases, stating that its “decision in Twombly

expounded the pleading standard for ‘all civil actions.’ ” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (quoting Fed. R.

Civ. P. 1). The panel majority in this case disregards that

holding, suggesting instead that the Twombly/Iqbal standard

does not apply to all civil actions. In reaching this erroneous

result, the panel also resurrects a theory of supervisory liability for constitutional torts that the Supreme Court has foreclosed. I therefore must dissent from the regrettable failure of

our court to rehear this case en banc. 

I

Dion Starr, a former inmate of Los Angeles County’s

Men’s Central Jail, alleges that on January 27, 2006, correctional officers willfully opened his cell to allow other prisoners to stab him. He further alleges that the officers joined in

the beating and then intentionally prevented him from receiving prompt medical care. Based on this incident, Starr sued,

among others, Sheriff Leroy Baca of the Los Angeles County

Sheriff’s Department (LASD).

Starr alleges that Sheriff Baca violated his Eighth Amendment rights by failing to take actions to reduce the risk of

inmate-on-inmate violence. In support of this theory, Starr

notes ten incidents of inmate-on-inmate violence that

occurred in L.A. County jails from July 2002 to October

2005. 

The incidents cited by Starr have little to do with each other

and nothing to do with the assault on Starr. None of the inci18744 STARR v. COUNTY OF LOS ANGELES
dents involved Starr or the inmates and officers who allegedly

assaulted him. As such, the complaint includes little more

than the sort of “[t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory allegations,

[that] do not suffice” to survive a motion to dismiss for failure

to state a claim. Iqbal, 129 S.Ct. 1949. 

II

Under Rule 8 of the Federal Rules of Civil Procedure, a

plaintiff must allege facts sufficient to raise “a plausible entitlement to relief.” Twombly, 550 U.S. at 559. Because Twombly involved antitrust claims—a unique type of claim prone to

burdensome discovery requests—some speculated that its

“plausibility” standard might be limited to that context. The

Supreme Court eliminated any such speculation in Iqbal,

making clear that Twombly “was based on our interpretation

and application of Rule 8.” 129 S. Ct. at 1953. Rule 8, the

Court emphasized, “governs the pleading standard ‘in all civil

actions and proceedings in the United States district courts.’ ”

Id. (quoting Fed. R. Civ. P. 1).

The panel majority nonetheless finds a “perplexing” conflict between Twombly/Iqbal and another pair of cases

decided by the Supreme Court “during roughly the same period” that “appear[ ] to have applied the original, more lenient

version of Rule 8(a).” Slip Op. at 9819. The panel majority

complains that “it is difficult to know in cases that come

before us whether we should apply . . . the more demanding

standard” of Twombly and Iqbal or “the usual lenient pleading

standard under Rule 8(a).” Id. at 9821.

I fail to see what the majority finds so “perplexing.” The

first allegedly conflicting case, Swierkiewicz v. Sorema, 534

U.S. 506 (2002), was decided five years before Twombly and

was explicitly distinguished in Twombly as a case in which

the court of appeals had required the plaintiff to plead specific

facts beyond those necessary “to state a claim to relief that is

STARR v. COUNTY OF LOS ANGELES 18745
plausible on its face.” See Twombly, 550 U.S. at 570. Likewise, the second was a per curiam reversal in which a dismissed complaint alleged palpably sufficient facts. See

Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Neither case

supports the majority’s conclusion that Twombly/Iqbal does

not apply to all civil actions. 

Though the majority ultimately professes to apply something like the Iqbal plausibility standard, in the end, it applies

what might be deemed “Iqbal Lite” (“Same insufficient complaints, fewer dismissals!”). The majority states that a complaint’s factual allegations must “plausibly suggest an

entitlement to relief,” Slip Op. at 9821, but it wrongly

requires that the determination of whether this standard is met

be made in light of whether it would be “unfair to require the

opposing party to be subjected to the expense of discovery

and continued litigation.” Id. 

The majority thus creates a sliding scale in which the

greater the anticipated discovery expense, the greater the

showing of plausibility that is required. The Supreme Court

has rejected such an approach. See Iqbal, 129 S. Ct. at 1953

(“[T]he question presented by a motion to dismiss a complaint

for insufficient pleadings does not turn on the controls placed

upon the discovery process.”). Such a reading is nothing more

than a thinly veiled artifice to confine Twombly to cases in

which discovery is especially costly. In doing so, the majority

inexplicably muddies the waters made crystal clear by the

Supreme Court’s pronouncement in Iqbal. 

Today’s unfortunate decision yet again places the Ninth

Circuit on the wrong side of a circuit split. Although courts

have struggled to determine precisely what Iqbal requires,

see, e.g., Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th

Cir. 2010), there was—until now—no dispute that Twombly/Iqbal is the standard that applies.1

 The panel majority’s

1

See, e.g., Sepulveda-Villarini v. Dep’t of Educ., 628 F.3d 25, 28-29 (1st

Cir. 2010) (“The make-or-break standard . . . is that the combined allega18746 STARR v. COUNTY OF LOS ANGELES
decision leaves our district court judges in the unenviable

position of reconciling the instructions of the Supreme Court

with those we announce today.

III

A

The panel majority’s analysis of the facts demonstrates

what little resemblance its standard bears to the rule articulated in Twombly and Iqbal. Starr alleges an Eighth Amendtions, taken as true, must state a plausible, not a merely conceivable, case

for relief.”); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[W]e apply

a plausibility standard . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir. 2009) (“[Iqbal] makes clear that the Twombly ‘facial plausibility’ pleading requirement applies to all civil suits in the federal

courts.”); Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009) (applying the Iqbal standard of whether the complaint “states plausible claims”

for relief); Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (“To

avoid dismissal, a plaintiff must plead ‘sufficient facts to state a claim to

relief that is plausible on its face.’ ” (quoting Iqbal, 129 S.Ct. at 1949));

Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 243 (6th Cir. 2010)

(requiring that the pleader allege “ ‘enough facts to state a claim to relief

that is plausible on its face’ ” (quoting Twombly, 550 U.S. at 570)); Brooks

v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (“[Iqbal] clarified that Twombly’s plausibility requirement applies across the board, not just to antitrust

cases.”); McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009) (“The

complaint ‘must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.’ ” (quoting Iqbal, 129 S. Ct.

at 1949)); U.S. ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163,

1167 (10th Cir. 2010) (“Under 12(b)(6), we review for plausibility.”);

Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009)

(“The well-pled allegations must nudge the claim ‘across the line from

conceivable to plausible.’ ” (quoting Twombly, 550 U.S. at 570)); Jones v.

Horne, 634 F.3d 588, 595 (D.C. Cir. 2011) (“To survive a motion to dismiss, the pleadings must suggest a plausible scenario that shows that the

pleader is entitled to relief.”); Juniper Networks, Inc. v. Shipley, __ F. 3d

__, 2011 WL 1601995 (Fed. Cir. Apr. 29, 2011) (“[A] complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’ ” (quoting Iqbal, 129 S.Ct. at 1949)).

STARR v. COUNTY OF LOS ANGELES 18747
ment claim based on the conditions of his confinement. He

therefore must plead “factual content that allows the court to

draw the reasonable inference,” Iqbal, 129 S. Ct. at 1949, that

he was injured as a result of “an excessive risk to inmate

health or safety” that Sheriff Baca “kn[ew] of and disregard-

[ed],” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Sheriff

Baca must have been both “aware of facts from which the

inference could be drawn that a substantial risk of serious

harm exists, and he must also [have] draw[n] the inference.”

Id. (emphasis added). 

The majority contends that “the factual allegations in

Starr’s complaint plausibly suggest that Sheriff Baca acquiesced in the unconstitutional conduct of his subordinates, and

was thereby deliberately indifferent to the danger posed to

Starr.” Slip Op. at 9822. But the majority never explains—

indeed, cannot explain—how it is able to draw this inference.

The facts pleaded by Starr do not plausibly suggest that

Baca “kn[ew] of and disregard[ed] an excessive risk to inmate

health or safety.” Brennan, 511 U.S. at 837. To be sure, a possible explanation for ten varied and discrete incidents of

inmate-on-inmate violence amongst a prison population of

20,000 might be that the leader of the prison bureaucracy is

callously indifferent to such violence. But possible is not sufficient. Twombly and Iqbal require a plausible explanation

and held that an explanation is not plausible when an “ ‘obvious alternative explanation’ ” exists. Iqbal, 129 S. Ct. at

1951-52 (quoting Twombly, 550 U.S. at 567). 

Here, “the obvious alternative explanation” for the inmateon-inmate assaults is that it is virtually impossible for an

administrator in charge of 20,000 inmates—many of whom

are violent—to ensure that they never assault each other.

Starr’s complaint amounts to nothing more than a general

indictment of the LASD. The LASD is the largest sheriff’s

department in the nation. With a budget of $2.4 billion and a

staff of 18,000, it is charged with directly protecting over 4

18748 STARR v. COUNTY OF LOS ANGELES
million people in the 9.8 million person county. It also provides critical support to city police departments by housing all

of Los Angeles County’s nearly 20,000 locally jailed inmates.

See Los Angeles County Sheriff’s Department, http://lasheriff.org/aboutlasd/execs.html. While size alone does not

absolve its leadership of responsibility for its shortcomings, it

does underscore the difficulty of attributing any specific incident to the deliberate indifference of the official at the top of

this large bureaucracy. Slip Op. at 9826-27 (Trott, J., dissenting). These ten incidents suggest—at most—that Sheriff Baca

is an ineffective leader. They do not plausibly suggest that he

is deliberately indifferent to inmate violence. Cf. Iqbal, 129 S.

Ct. at 1937 (concluding that the Justice Department’s detention of a disproportionate number of Arab Muslims in the

wake of 9/11 did not plausibly suggest purposeful discrimination because the “obvious alternative explanation” was that

the disparate impact was “incidental”).

B

The majority’s conclusion has the effect of inserting

respondeat superior liability into section 1983 despite the

Supreme Court’s admonition that “a plaintiff must plead that

each Government-official defendant, through the official’s

own individual actions, has violated the Constitution.” Iqbal,

129 S. Ct. at 1949 (rejecting the petitioner’s theory of “supervisory liability” in which “a supervisor’s mere knowledge of

his subordinate’s discriminatory purpose amounts to the

supervisor’s violating the Constitution”). “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.

As a result, even assuming that Sheriff Baca was deliberately indifferent to an excessive risk of inmate violence, Starr

still cannot recover unless Baca’s indifference caused the

STARR v. COUNTY OF LOS ANGELES 18749
assault on Starr. See Hansen v. Black, 885 F.2d 642, 646 (9th

Cir. 1989) (requiring a “sufficient causal connection” between

the defendant’s wrongful conduct and the constitutional violation alleged). Thus, to state a cause of action, a plaintiff must

“allege facts sufficient to show that the defendants had actual

knowledge of an impending harm easily preventable, so that

a conscious, culpable refusal to prevent the harm can be

inferred from the defendant’s failure to prevent it.” Santiago

v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (internal quotation

marks omitted). 

Starr’s allegations get nowhere close to this standard. As

noted above, Starr alleges that the prior incidents of inmateon-inmate violence were caused by correctional officer

negligence—e.g., poor supervision and misclassification of

prisoners. But according to Starr’s own account, his assault

was caused by a group of sadistic correctional officers who

intentionally helped several inmates stab Starr twenty-three

times and then, unsatisfied, joined in the assault themselves.

Thus, even if Sheriff Baca had solved the alleged problems of

lax supervision and inmate misclassification, it is difficult to

see how that would have stopped this assault. 

Yet the panel resists the notion that Starr must adequately

plead a nexus between Baca’s alleged deliberate indifference

and Starr’s injury. Instead, it infers deliberate indifference

from violent episodes that do not have a common, concrete

cause that a high-level administrator could readily remedy. In

resisting any attempt to require Starr to tie the prior incidents

to his injury, the majority reveals its true purpose: to impose

respondeat superior in any jurisdiction which has a history of

prior prison problems, no matter how unrelated those problems are to the plaintiff ’s injuries. 

In allowing Starr’s claim to proceed, this court creates a

road map for circumventing the rule against vicarious liability

in constitutional litigation. First, allege a constitutional violation committed by a low-level employee of a large adminis18750 STARR v. COUNTY OF LOS ANGELES
trative agency. Next, list a number of tangential bad acts

committed by other members of that agency. And, finally,

fault the head of that agency for not sufficiently addressing

the general problem of his subordinates’ poor behavior.

Indeed, it is hard to see why every L.A. County prisoner who

is assaulted by another prisoner does not now have a viable

claim against Sheriff Baca.

IV

The court’s ruling today conflicts with Iqbal in its statement of the pleading standard, in its application of the pleading standard, and in its far-reaching conclusions regarding

supervisory liability. By failing to rehear this case en banc, we

fail to correct these errors and once again must wait for the

Supreme Court to do so for us. 

I respectfully dissent. 

STARR v. COUNTY OF LOS ANGELES 18751