[ PUBLISH ] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 13

- 10129

________________________ D. C. Docket No. 2:12

- cv - 03646

- AKK CINDY LAINE FRANKLIN, Plaintiff

- Appellee,

versus CHRIS CURRY, individually, JOHN SAMANIEGO, individually, et al.,
Defendants

- Appellants

.

________________________ Appeal from the United States District Court for the Northern District of Alabama

_________________________ ( December 23, 2013) Before MARCUS , BLACK and RIPPLE , * Circuit Judge s . PER CURIAM:

* The Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation.

Case: 13-10129 Date Filed: 12/23/2013 Page: 1 of 132 This case arises from Cindy Laine Franklin’s allegation that Michael Keith Gay, a corrections officer at the Shelby County Jail, sexually assaulted her, and Franklin’s ensuing lawsuit against Gay and various other officers at the jail. The officers other than Gay (Appellants or the Supervisory Defendants) moved for dismissal on the basis of qualified immunity. The district court denied the motion, and this interlocutory appeal followed. Upon review, w e hold that Franklin has failed to plead a constitutio nal violation and that Appellants are therefore entitled to qualified immunity.
I. BACKGROUND We begin with a recitation of the facts as drawn from Franklin’s complaint. Although the complaint provides little information concerning the sequence and temporal relation of events, we must accept Franklin’s well

- pleaded allegations as true and draw all reasonable inferences in her favor. See Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). 1 As alleged in the complaint, on October 19, 2010, Franklin was transferred to Shelby Count y Jail as a pretrial detainee. During the ensuing booking procedure, Gay said to Franklin, “I want to see your rug.” Franklin responded that Gay “ would get in trouble,” to which Gay replied, “ t here is nothing you c an do.”

1 However, we afford no presumption of truth to legal conclusions and recitations of the basic elements of a cause of action

. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 ( 2009); Mamani v. Berzain , 654 F.3d 1148, 1153 (11th Cir. 2011).

Case: 13-10129 Date Filed: 12/23/2013 Page: 2 of 133 As Gay took Franklin’s fingerprints, he placed her hand on his genitals, causing Franklin to object and tell Gay to leave her alone. Some time later, a s Franklin slept in her cell , Gay jolted her awake by getting on top of her with his pant s unzip ped. Gay force d his penis into Franklin’s mouth as she resisted. Franklin told her boyfriend and her parole officer about the incident, after which John Samaniego, a chief deputy at the jail, came to speak with her. 2 T he Alabama Bureau of Investigation obtained a statement from Franklin and commenced a formal investigation of her claims. Franklin spoke with other female detainees who told her that Gay had sexually abused another female inmate and engaged in sex with another

. Gay eventually resigned.
F ranklin commenced the instant action against Gay, Chris Curry , S heriff of Shelby County, and five other prison officials: Samaniego, the chief deputy who spoke with her about the assault ; Chris George, Division Commander of Investigations ; Chris Corbell, Division Commander of Uniform ; Jay Fondren, Division Commander of Corrections ; and Ken Burchfield, Division Commander of Administration. Franklin assert ed constitutional claims under 42 U.S.C. § 1983 against all of the officers in their in dividual capacities

. The Supervisory Defendants

— Curry, Samaniego, George, Corbell, Fondren, and Burchfield

—

2 Franklin’s complaint does not indicate the duration of her stay at the Shelby County J ail. However, counsel have stated in filings before the district court and in their brief on appeal th at she was only there “a very short time

. ”

Case: 13-10129 Date Filed: 12/23/2013 Page: 3 of 134 moved to dismiss on the basis of qualified immunity. 3 The district court denied the motion, finding that Franklin had asserted a violation of a cle arly established constitutional right by alleging that she had been harmed by the Supervisory Defendant s ’ deliberate indifferen ce to a substantial risk of serious harm. The Supervisory Defendants now appeal the district court’s denial of the ir motion

. II. STA NDARD OF REVIEW A district court’s denial of qualified immunity on a motion to dismiss is an appealable order that we review de novo. Rehberg v. Paulk , 611 F.3d 828, 837 n.5 (11th Cir. 2010).
III. DISCUSSION Qualified immunity shields government official s acting within their discretionary authority from liability unless the official s “violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)

. The parties do not dispute that the Supervisory Defendants are government officials who were acting within the scope of the ir discretionary authority. Thus,

t o evaluate their entitlement to q ualified immunity, we ask whether Franklin has alleged a violation of a constitutional right and, if so, whether the constitutional right violated was clearly established at the time of the violation. Keating , 598

3 Franklin’s claims against Gay are not a part of this appeal. Case: 13-10129 Date Filed: 12/23/2013 Page: 4 of 135 F.3d at 762. We hold that Franklin failed to allege a violation of a constitutional right and thus falls short of this standard. In determining whether Franklin alleged a constitutional violation, the district court made two related errors. First, it applied an incorrect legal standard. Second, the district court allowed Franklin to satisfy the standard it applied with conclusory allegations . We address each error in turn.
A. The Legal Standard for Deliberate Indifference In analyzing Franklin’s claims against the Supervisory Defendants, the district court erred by finding allegations that they “k new or should have known”
of a substantial risk of serious harm sufficient to state a deliberate indifference claim . Delibe rate indifference requires more than constructive knowledge. The district court began its analysis correctly , stating that, “to esta blish supervisory liability under § 1983, a plaintiff must allege that the supervisor personally participat ed in the alleged unconstitutional conduct or that there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation.” D. Ct. Order at 6 ( internal quotation marks and alterations omitted); see Cottone v. Jenne , 326 F.3d 1352, 1360 (11th Cir. 2003)

. The district court then explained that a plaintiff can show a causal connection, inter alia, wh en “the supervisor’s policy or custom resulted in deliberate indifference.” D. Ct. Order at 6 (internal quotation marks omitted). To this point, the district

Case: 13-10129 Date Filed: 12/23/2013 Page: 5 of 136 court’s analysis was sound. However, the court then went astray when it concluded that Franklin had alleged a causal connection, stating : Franklin alleges that a causal connection exists because Sheriff Curry was on notice of Officer Gay’s alleged conduct and the need to correct this practice, but failed to do so, and because Sheriff Curry’s policy or custom resul ted in deliberate indifference, and [w] ith respect to Officers Samaniego, Burchfield, Fondren, Corbell and George, Franklin alleges that they too knew or should have known of Officer Gay’s pattern of inappropriate conduct with female detainees and inmates but “were deliberately indifferent

. . . .” D. Ct. Order at 7 (emphasis added). In reaching these conclu sions, the d istrict

court neglected to analyze whether Franklin had properly alleged deliberate indifference. In fact, the elements of deliberate indifference do not appear anywhere in the district court’s order. 4
Its first step should have been to iden tify the precise constitutional violation charged

— in this case, deliberate indifference

— and to explain what the violation requires

. See Baker v. McCollan , 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979) ( b efore discussing liability in a § 1983 suit, “it is necessary to isolate the precise constitutional violation with w hich [the defendant] is charged ”). Had the district

4 We do not suggest that district courts must recite a specific set of words in evaluating a claim, but without setting out even the basic contours of deliberate indifference, the district court was unable to properly analyze the sufficiency of Franklin’s allegations.

Case: 13-10129 Date Filed: 12/23/2013 Page: 6 of 137 court done so, Franklin’s failure to allege the required elements would have been
appar ent. Deliberate indifference requires the following: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.” Goodman v. Kimbrough , 718 F.3d 1325, 1331

- 32 (11th Cir. 2013) (inte rnal quotation marks omitted). Franklin’s a llegations that the Supervisory Defendants “knew or should have known” of a substantial risk clearly fall short of this standard

. “Were we to accept that theory of liability, the deliberate indifference standard would be silently metamorphosed into a font of tort law

— a brand of negligence redux

— which the Supreme Court has made abundantly clear it is not.” Id. at 1334. As we have stated, “ [ t ] o be deliberately indifferent a prison official must know of and disreg ard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference .” Id. at 1332 (internal quotation marks omitted). Franklin failed to allege the Supervisory Defendants actually knew of the serious risk Gay posed even in the most conclusory fashion. Because of this failure, Franklin did not allege a constitutional violation, and Appellants were entitled to q ualified immunity. Case: 13-10129 Date Filed: 12/23/2013 Page: 7 of 138 B. Franklin’s Factual Allegations The district court’s second error was finding purely conclusory allegations

— i.e., a “formulaic recitation of the elements of a cause of action”

— sufficient to satisfy the standard it applied. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted)

. It is important that defendants be apprised of the conduct that forms the basis of the charges against them. Conclusory allegations fail to apprise defendants of t he factual basis of the plaintiff’s claims. Accordingly , the Federal Rule s of Civil Procedure require a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specifically, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal , 556 U.S. at 678, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 , 127 S. Ct. 1955, 19 74 (2007)). The plausibility standard is met only where the facts alleged enable “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint ’s allegations must est ablish “more than a sheer possibility that a defendant has acted unlawfully.” Id. Mere “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do , ” and a plaintiff cannot rely on “naked assertions devoid of furthe r factual enhancement.” Id. (internal quotation marks and alteration

Case: 13-10129 Date Filed: 12/23/2013 Page: 8 of 139 omitted) ; see also id. at 679, 129 S. Ct. at 1950 ( “While legal conclusions can provide the framework of a complaint, they must be supp orted by factual allegations.”); Randal l v. Scott , 610 F.3d 701, 709 (11th Cir. 2010) (applying the standards described in Iqbal to a § 1983 case involving defendants asserting qualified immunity in place of the heightened pleading standard applied in prior cases). Franklin’s repeated allegations the Supervisory Defendants were deliberately indifferent or their actions constituted or resulted in deliberate indifference carry no weight. Similarly, by alleging Appellants “knew or should have known ” of a
risk , Franklin has merely recited an element of a claim without providing the facts from which one could draw such a conclusion

. The district court found these allegations sufficient. Had the district court followed the Supreme Court’s “two

pronged approach” of first separating out the complaint’s conclusory legal allegations and then determining whether th e remaining well

- pleaded factual allegations, accepted as true, “plausibly give r ise to an entitlement to relief, ” the insufficiency of Franklin’s allegations would have been obvious. See Iqbal , 556 U.S. at 679, 129 S. Ct. at 1950 ; see also Randall , 610 F.3d at 709

- 10 (“A district court considering a motion to dismiss shall begin by identifying conclusory allegations that are not entitled to an assumption of truth

— le gal conclusions must

Case: 13-10129 Date Filed: 12/23/2013 Page: 9 of 1310 be supported by factual allegations.”) ; accord Shay v. Walters , 702 F.3d 76, 82 (1st Cir. 2012). Stripping away Franklin’s con clusory allegations l eaves only a handful of properly pleaded facts

— specifically, (1) that Gay verbally harassed Franklin and told her “there is nothing you can do,” (2) that Gay s exually assaulted Franklin, (3) that Gay had previously sexually assaulted another female detainee, and (4) that Gay had previously had sexual relations with a third female detaine e. Given only these facts, Franklin’s complaint is insufficient to state a plausible claim that each of the Supervisory Defendants should have known of a substantial risk that Gay would sexually assault Franklin , much less that each defendant was subjecti vely

awar e of the risk and knowingly disregarded it

. Franklin states that Sheriff Curry “failed to promulgate, to adopt, to implement or to enforce policies, rules, or regulation s to safeguard female inmates,” but she does not describe any of the policies that were in place, the sort of policies that should have been in place, or how those policies could have prevented Gay’s hara ssment. Similarly, Franklin alleges the names and titles of the other Supervisory Defendants 5 but alleges

5 Appellants point to a related problem of Franklin grouping defendants tog ether in a manner that makes it impossible to determine the unconstitutional conduct attributed to each one individually . Our conclusions about the insufficiency of Franklin’s allegations generally render analysis of this particular deficiency unnecessary except to emphasize the requirement that Franklin allege each Supervisory Defendant’s subjective awareness of the risk of harm and that each of them exhibited deliberate indifference through his own actions. Meeting these requirements without any individ ualized allegations other th an Appellants’ names and titles is unlikely. Case: 13-10129 Date Filed: 12/23/2013 Page: 10 of 1311 nothing about the sign ificance of the ir titles, their individual roles in the jail, their personal interactions or familiarity with Gay, their length of service, their management policies, or any other characteristics that would bear on whether they knew about but were delibera tely indifferent to Gay’s conduct and the risk he posed. 6 From Franklin’s allegations, a finder of fact could not even conclude that all of the Defendants were ever in the jail, much less that each of their individual actions constituted deliberate indiff erence to the risk Gay would abuse Franklin

. Subjecting Appellants to the full “panoply of expensive and time

- consuming pretrial discovery devices,” Nero Trading, LLC v. U.S. Dep’t of Treasury , 570 F.3d 1244, 1249 (11th Cir. 2009), and forcing them to def end this action based on Franklin’s inadequate allegations not only runs counter to the general rules of pleading, it also undermines qualified immunity’s fundamental purpose of protecting “all but the plainly incompetent or those who knowingly violat e the

6 Before the district court and in her appellate briefs , Franklin essentially conceded that her allegations concerning the Supervisory Defendants other than Curry we re insufficient a nd attempted to excuse her lack of specificity by admitting that she simply does not know the details about the Supervisory Defendants’ responsibilities at this stage

. Far from excusing her insufficient pleadings, this admission only reinforces our conclu sion that her complaint was due to be dismissed. In any event, Franklin cites no legal basis for her contention that he r lack of knowledge should relax the pleading standard to which she is held. Cf

. DM Research, Inc. v. Coll. of Am. Pathologists , 170 F. 3d 53, 56 (1st Cir. 1999) (“[T]he discovery process is not available where, at the complaint stage, a plaintiff has nothing more than unlikely speculations. While this may mean that a civil plaintiff must do more detective work in advance, the reason is t o protect society from the costs of highly unpromising litigation.”).

Case: 13-10129 Date Filed: 12/23/2013 Page: 11 of 1312 law” from the costs of suit. Aschroft v. al

- Kidd ,
___ U.S.

___ , 131 S. Ct. 207 4 , 2085 (2011) (internal quotation marks omitted)

. If anything, Franklin’s allegations suggest that the policy of the jail was to promptly investigate claims of sexual h arassment. She alleges that shortly after she reported Gay’s conduct to her parole officer, a prison official discussed the attack with her, and an investigation commenced. Ultimately, the officer alleged to have engaged in wrongdoing resigned. In this way, Franklin’s own allegations undercut the legal conclusion s she asks us to draw from them and fail to allow a court “to draw [a] reasonable inference that the [Appellants are] liable for the misconduct alleged.” See Iqbal , 556 U.S. at 678, 129 S. Ct. a t 1949. Thus, e ven under the relaxed standard the district court applied, Franklin’s conclusory allegations are insufficient to allege a constitutional violation. This provides an additional basis for Appellants’ entitlement to qualified immunity. 7
IV. CONCLUSION

7 As part of their appeal, Appellants argue that under Iqbal supervisors can only be liable for constitutional violations if a plaintiff alleges purposeful and intentional co nduct. We reject this argument. Appellants ignore the Iqbal Court’s caution that “[t]he factors necessary to establish a [claim] will vary with the constitutional provision at issue.” 556 U.S. at 676, 129 S. Ct. at 1948. The discussion of purposeful in tent in Iqbal pertained to claims of invidious discrimination, not deliberate indifference. See id. Nothing in Iqbal suggests that supervisors cannot be held liable for deliberate indifference toward risks posed by their subordinates or that such liabili ty requires a higher mens rea than any other deliberate indifference claim. So long as a supervisor’s own conduct

— and not that of his subordinate

— constitutes deliberate indifference, his status a s a supervisor changes nothing. See id.

Case: 13-10129 Date Filed: 12/23/2013 Page: 12 of 1313 In light of the foregoing, Franklin failed to allege a constitutional violation, and the district court erred in denying Appellants’ motion to dismiss

. REVERSED. Case: 13-10129 Date Filed: 12/23/2013 Page: 13 of 13