CACI 3005 Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)

California Civil Jury Instructions CACI

3005 Supervisor Liability for Acts of Subordinates (42 U.S.C. § 1983)

[Name of plaintiff] claims that [name of supervisor defendant] is personally liable for [his/her/nonbinary pronoun] harm. In order to establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of supervisor defendant] knew, or in the exercise of reasonable diligence should have known, of [name of subordinate employee defendant]’s wrongful conduct;

2.That [name of supervisor defendant] knew that the wrongful conduct created a substantial risk of harm to [name of plaintiff];

3.That [name of supervisor defendant] disregarded that risk by [expressly approving/impliedly approving/ [or] failing to take adequate action to prevent] the wrongful conduct; and

4.That [name of supervisor defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New April 2007; Renumbered from CACI No. 3013 December 2010; Revised December 2011; Renumbered from CACI No. 3017 December 2012; Revised June 2013

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Directions for Use

Read this instruction in cases in which a supervisor is alleged to be personally liable for the violation of the plaintiff’s civil rights under Title 42 United States Code section 1983.

For certain constitutional violations, deliberate indifference based on knowledge and acquiescence is insufficient to establish the supervisor’s liability. The supervisor must act with the purpose necessary to establish the underlying violation. (Ashcroft v. Iqbal (2009) 556 U.S. 662, 676–677 [129 S.Ct. 1937, 173 L.Ed.2d 868] [for claim of invidious discrimination in violation of the First and Fifth Amendments, plaintiff must plead and prove that defendant acted with discriminatory purpose].) In such a case, element 3 requires not only express approval, but also discriminatory purpose. The United States Supreme Court has found constitutional torts to require specific intent in three situations: (1) due process claims for injuries caused by a high-speed chase (See County of Sacramento v. Lewis (1998) 523 U.S. 833, 836 [118 S.Ct. 1708, 140 L.Ed.2d 1043].); (2) Eighth Amendment claims for injuries suffered during the response to a prison disturbance (See Whitley v. Albers (1986) 475 U.S. 312, 320–321 [106 S.Ct. 1078, 89 L.Ed.2d 251].); and (3) invidious discrimination under the equal protection clause and the First Amendment free exercise clause. (See Ashcroft v. Iqbalsupra, 556 U.S. at pp. 676–677.)

The Ninth Circuit has held that deliberate indifference based on knowledge and acquiescence is still sufficient to support supervisor liability if the underlying constitutional violation does not require purposeful discrimination. (OSU Student Alliance v. Ray (9th Cir. 2012) 699 F.3d 1053, 1070–1075 [knowing acquiescence is sufficient to establish supervisor liability for free-speech violations because intent to discriminate is not required]; see also Starr v. Baca (9th Cir. 2011) 652 F.3d 1202, 1207 [same for 8th Amendment violation for cruel and unusual punishment].)

Sources and Authority

“A ‘supervisory official may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates. … [T]hat liability is not premised upon respondeat superior but upon “a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict.” ’ ” (Weaver v. State of California (1998) 63 Cal.App.4th 188, 209 [73 Cal.Rptr.2d 571], internal citations omitted.)

“[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.” (Starrsupra, 652 F.3d at p. 1207.)

“To establish supervisory liability under section 1983, [plaintiff] was required to prove: (1) the supervisor had actual or constructive knowledge of [defendant’s] wrongful conduct; (2) the supervisor’s response ‘“ was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices’ ” ’; and (3) the existence of an ‘affirmative causal link’ between the supervisor’s inaction and [plaintiff’s] injuries.” (Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1279–1280 [48 Cal.Rptr.3d 715], internal citations omitted.)

“A supervisor is liable under § 1983 for a subordinate’s constitutional violations ‘if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.’ [Defendants] testified that they were mere observers who stayed at the end of the [plaintiffs’] driveway. But based on the [plaintiffs’] version of the facts, which we must accept as true in this appeal, we draw the inference that [defendants] tacitly endorsed the other Sheriff’s officers’ actions by failing to intervene. … On this appeal we do not weigh the evidence to determine whether [defendants’] stated reasons for not intervening are plausible.” (Maxwell v. County of San Diego (9th Cir. 2013) 708 F.3d 1075, 1086, internal citation omitted.)

“A supervisory official is liable under § 1983 so long as ‘there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’ ‘The requisite causal connection can be established … by setting in motion a series of acts by others or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury.’ Thus, a supervisor may ‘be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others.’ ” (Rodriguez v. County of L.A. (9th Cir. 2018) 891 F.3d 776, 798, internal citations omitted.)

“[T]he claim that a supervisory official knew of unconstitutional conditions and ‘culpable actions of his subordinates’ but failed to act amounts to ‘acquiescence in the unconstitutional conduct of his subordinates’ and is ‘sufficient to state a claim of supervisory liability.’ ” (Keates v. Koile (9th Cir. 2018) 883 F.3d 1228, 1243.)

“ ‘[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right.’ ” (Starr, supra, 652 F.3d at p. 1207, internal citation omitted.)

“Respondent … argues that, under a theory of ‘supervisory liability,’ petitioners can be liable for ‘knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.’ That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of ‘supervisory liability’ is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.” (Ashcroft v. Iqbalsupra, 556 U.S. at p. 677, internal citations omitted.)

“The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Under extant precedent purposeful discrimination requires more than ‘intent as volition or intent as awareness of consequences.’ It instead involves a decisionmaker’s undertaking a course of action “because of,” not merely “in spite of,” [the action’s] adverse effects upon an identifiable group.’ ” (Ashcroft v. Iqbal, supra, 556 U.S. at pp. 676–677, internal citations omitted.)

Iqbal … holds that a plaintiff does not state invidious racial discrimination claims against supervisory defendants by pleading that the supervisors knowingly acquiesced in discrimination perpetrated by subordinates, but this holding was based on the elements of invidious discrimination in particular, not on some blanket requirement that applies equally to all constitutional tort claims. Iqbal makes crystal clear that constitutional tort claims against supervisory defendants turn on the requirements of the particular claim—and, more specifically, on the state of mind required by the particular claim—not on a generally applicable concept of supervisory liability. ‘The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.’ Allegations that the [defendants] knowingly acquiesced in their subordinates’ discrimination did not suffice to state invidious racial discrimination claims against them, because such claims require specific intent—something that knowing acquiescence does not establish. On the other hand, because Eighth Amendment claims for cruel and unusual punishment generally require only deliberate indifference (not specific intent), a Sheriff is liable for prisoner abuse perpetrated by his subordinates if he knowingly turns a blind eye to the abuse. The Sheriff need not act with the purpose that the prisoner be abused. Put simply, constitutional tort liability after Iqbal depends primarily on the requisite mental state for the violation alleged.” (OSU Student Alliance, supra, 699 F.3d at p. 1071, internal citations omitted.)

“ ‘[S]upervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy “itself is a repudiation of constitutional rights” and is the “moving force of a constitutional violation.” ’ ” (Crowley v. Bannister (9th Cir. 2013) 734 F.3d 967, 977.)

“When a supervisory official advances or manages a policy that instructs its adherents to violate constitutional rights, then the official specifically intends for such violations to occur. Claims against such supervisory officials, therefore, do not fail on the state of mind requirement, be it intent, knowledge, or deliberate indifference. Iqbal itself supports this holding. There, the Court rejected the invidious discrimination claims against [supervisory defendants] because the complaint failed to show that those defendants advanced a policy of purposeful discrimination (as opposed to a policy geared simply toward detaining individuals with a ‘suspected link to the [terrorist] attacks’), not because it found that the complaint had to allege that the supervisors intended to discriminate against [plaintiff] in particular. Advancing a policy that requires subordinates to commit constitutional violations is always enough for § 1983 liability, no matter what the required mental state, so long as the policy proximately causes the harm—that is, so long as the plaintiff’s constitutional injury in fact occurs pursuant to the policy.” (OSU Student Alliance, supra, 699 F.3d at p. 1076.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, § 413
8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 8
2 Civil Rights Actions, Ch. 7, Deprivation of Rights Under Color of State Law—General Principles, ¶ 7.10 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 113, Civil Rights: The Post-Civil War Civil Rights Statutes, § 113.14 (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment Discrimination, § 115.20[4][a] (Matthew Bender)