LITIGATION AND ADMINISTRATIVE PRACTICE SERIES
Criminal Law and Urban Problems
Course Handbook Series
Number C-224

Prison Law 2010

Chair

Alexander A. Reinert

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ISSUES AFTER IQBAL

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ISSUES AFTER IQBAL IN PRISONERS’
RIGHTS LITIGATION

Alexander A. Reinert
Benjamin N. Cardozo School of Law

If you find this article helpful, you can learn more about the subject by going
to www.pli.edu to view the on demand program or segment for which it
was written.

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BRIEF BIOGRAPHY
Alex Reinert is an Assistant Professor at the Benjamin N. Cardozo
School of Law. Prior to joining the faculty at Cardozo, as an associate
at Koob & Magoolaghan for six years, Alex focused on prisoners’ rights,
employment discrimination, and disability rights litigation. Upon graduating from law school, he held two clerkships, first with the Hon. Harry T.
Edwards, DC Circuit Court of Appeals, and then with United States
Supreme Court Justice Stephen G. Breyer. Alex conducts research in the
areas of constitutional law, civil procedure, and the relationship between
science and the law. He teaches Constitutional Law, Criminal Law, Rights
of Prisoners and Detainees, and Civil Procedure.

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I.

INTRODUCTION

This section will address those areas of law that are most likely to be
affected after the Supreme Court’s decision in Ashcroft v. Iqbal, 129
S.Ct. 1937 (2009): (1) pleading; (2) supervisory liability; and (3) Monell
liability. The bottom-line takeaways are: (1) plead as many facts as you,
in good faith, can allege (unless the result is a prolix complaint that
obscures the most relevant facts); (2) do not plead any facts that could
defeat your claim for relief by providing an alternative legal explanation
for the defendants’ conduct; and (3) if you sue supervisors or municipalities, take particular account of the effect of Iqbal on the standard for
municipal and supervisory liability in your circuit (although in most
circuits, so far, the effect has been minimal).
II.

OVERVIEW OF IQBAL

Ashcroft v. Iqbal1 completed, by many accounts, a radical change in civil
procedure that started two years earlier with Bell Atlantic v. Twombly.2 In
Twombly, the Supreme Court adopted a “plausibility” pleading standard in
reviewing the sufficiency of an antitrust complaint, overruling in part
Conley v. Gibson,3 the 1957 case that ratified the notice pleading regime
adopted by the Federal Rules of Civil Procedure.4 Iqbal extended
Twombly to all civil actions and applied an even more rigorous standard to
a civil rights action filed against high level federal officials.5 The end result
is a pleading standard that heightens attention to “conclusory” factual
pleading,6 treats state of mind allegations in a manner at odds with prior
precedent,7 and encourages lower courts to apply their “judicial experience
1.
2.
3.
4.
5.
6.
7.

556 U.S. ___, 129 S.Ct. 1937 (2009).
550 U.S. 544 (2007).
355 U. S. 41 (1957).
550 U.S. at 561-63 (reviewing criticisms of Conley and concluding that expansive
language of the case “has been questioned, criticized, and explained away long
enough”).
129 S. Ct. at 1950 (explaining that in determining whether a complaint is
“plausible,” judges may rely on their “judicial experience and common sense”).
129 S. Ct. at 1949-50.
Id. at 1954 (interpreting Fed. R. Civ. P. 9(b) to require more than “general”
allegations for state of mind even where neither fraud nor mistake is alleged). The
Iqbal Court’s interpretation of Rule 9(b) is arguably at odds with the Advisory
Committee notes to Rule 9. See Fed. R. Civ. P. 9, Advisory Committee Notes to
1937 Adoption (citing ENGLISH RULES UNDER THE JUDICATURE ACT (The Annual
Practice, 1937) O. 19, r. 22.) The English rules cited by Rule 9 state that when a
plaintiff makes allegations as to any “condition of the mind of any person, it shall

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and common sense” to decide whether a plaintiff’s8 legal claims and
allegations are sufficient to proceed to discovery.9
It may be too early to judge the effect of Iqbal and Twombly, even as
many lower courts maintain that it has changed outcomes in particular
cases.10 At the broad empirical level, there is some ongoing debate about

be sufficient to allege the same as a fact without setting out the circumstances
from which the same is to be inferred.” Jeff Sovern, Reconsidering Federal Civil
Rule 9(B): Do We Need Particularized Pleading Requirements in Fraud Cases?
104 F.R.D. 143, 146 n.19 (1985). Moreover, as some courts have recognized, the
Iqbal Court’s treatment of Rule 9(b) is in some tension with its prior decision in
Swierkiewicz v. Sorema, 534 U.S. 506 (2002). See, e.g., Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009); Brown v. Castleton State
College, 663 F.Supp.2d 392, 403 n.8 (D. Vt. 2009); cf. Kasten v. Ford Motor Co.,
09 Civ. 11754, 2009 WL 3628012, at *7 (E.D. Mich. Oct. 30, 2009) (stating that
tension between Swierkiewicz and Iqbal has yet to be resolved).
8. Pleading standards obviously apply to all parties. Defendants sometimes bring
counter-, cross-, or third-party claims, and as such may face the burden of
overcoming heightened pleading standards. But in this paper I will use “plaintiff”
to refer generally to anyone who brings a claim that is subject to a particular
pleading standard.
9. Iqbal, 129 S. Ct. at 1950.
10. To be fair, the Supreme Court itself stated that it did not consider Twombly or
Iqbal to break significant new ground, see Iqbal, 129 S. Ct. at 1949-50, Twombly,
550 U.S. at 563 n.8, and some lower courts seem to be taking the Court at its
word. See, e.g., Valenti v. Massapequa Union Free School Dist., No. 09-977,
2010 WL 475203 (E.D.N.Y. Feb. 5, 2010); Rouse v. Berry, No. 06-2088, 2010
WL 325569 (D.D.C. Jan. 29, 2010); Desrouleaux v. Quest Diagnostics, Inc., No.
09-61672, 2009 WL 5214964 (S.D. Fla. Dec. 29, 2009); Gillman v. Inner City
Broadcasting Corp., No. 08-8909, 2009 WL 3003244 (S.D.N.Y. Sept. 18, 2009).
The dissenters in Iqbal took a sharply different view, see Iqbal, 129 S. Ct. at
1959-61 (Souter, J., dissenting), and many lower courts have explicitly
acknowledged the significant difference between adjudicating pleading motions
before and after these decisions. See Young v. City of Visalia, No. 09-115, 2009
WL 2567847, at *6 (E.D. Cal. Aug. 18, 2009) (interpreting Iqbal to overturn
Ninth Circuit pleading precedent for constitutional claims against municipalities);
Doe v. Butte Valley Unified School Dist., 09-245, 2009 WL 2424608, at *8 (E.D.
Cal. Aug. 6, 2009) (questioning whether, after Iqbal, the Fed. R. Civ. P. form
complaints are still sufficient); Ocasio-Hernandez v. Fortuno-Burset, 639 F. Supp.
2d 217, 226 n.4 (D. Puerto Rico 2009) (acknowledging Iqbal’s harsh results);
Ibrahim v. Department of Homeland Sec., No. 06-545, 2009 WL 2246194, at *10
(N.D. Cal. July 27, 2009) (criticizing demanding nature of Iqbal standard);
Williams v. City of Cleveland, No. 09-1310, 2009 WL 2151778, at *4 (N.D. Ohio
July 16, 2009) (describing Iqbal as imposing a heightened pleading standard);
Kyle v. Holinka, No. 09-90, 2009 WL 1867671, at *1 (W.D. Wis. June 29, 2009)
(describing Iqbal as “implicitly overturn[ing] decades of circuit precedent in
which the court of appeals had allowed discrimination claims to be pleaded in a
conclusory fashion.”).

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whether dismissal rates have increased, decreased, or stayed the same
after Twombly and Iqbal, although the most recent data from the Federal
Judicial Center suggests that dismissal rates have increased significantly
for civil rights cases.11 Doctrinally, however, it is hard to underestimate
the potential impact of the two decisions together, especially as it applies
to prisoner civil rights cases in which the defendant’s state of mind is
often at issue. In this presentation, my goal is to review the most
important of these doctrinal changes, summarize how lower courts have
addressed them so far, and offer some thoughts as to how they may be
resolved.
I will begin with some history, even as I assume that much of it is
known to my audience. The changes ushered in by the 1938 adoption of
the Federal Rules of Civil Procedure, especially with respect to pleading,
were particularly striking. Rule 8, with its mandate that all a pleading
requires is a “short and plain statement of the claim showing that the
pleader is entitled to relief” was a sharp departure from prior practice.12
This change was crystallized by the Supreme Court’s decision in Conley
v. Gibson,13 in which the Court articulated an interpretation of Rule 8
that focused on the notice given to the defendant of the nature of the
plaintiff’s lawsuit rather than on the relationship of particular pleaded
facts to the legal claims at issue. The Conley Court treated pleading as a
way of “facilitat[ing] a proper decision on the merits” by giving a
defendant “fair notice of what the plaintiff’s claim is and the grounds
upon which it rests.”14 The Supreme Court’s broad statement that a
11. See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter
Empirically? 59 AM. U. L. REV. 553, 556 (2010) (estimating that motions to
dismiss were four times more likely to be granted after Iqbal as they were during
the Conley era, after controlling for relevant variables); Kendall W. Hannon,
Note, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp.
v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1837 (2008)
(reporting a civil rights dismissal rate of 41.7% under the pre-Twombly standard
and 52.9% under Twombly, using only reported cases between 2006 and 2007);
Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for
Employment Discrimination Cases, 2009 U. ILL. L. REV. 1013, 1014 (showing
effect of Twombly standard on published opinions regarding employment
discrimination cases); Federal Judicial Center, Motions to Dismiss (2010),
http://www.uscourts.gov/rules/ Motions%20to%20Dismiss.pdf.
12. The goal of the Federal Rules was to create both simplicity and uniformity in
pleading, and prevent premature dismissals. See id. at 439 (“Rule 8(a)(2) was
drafted carefully to avoid use of the charged phrases ‘fact,’ ‘conclusion,’ and
‘cause of action.’”).
13. 355 U.S. 41 (1957).
14. Id. at 47-48.

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complaint should survive dismissal “unless it appears beyond doubt that
the plaintiff can prove no set of facts . . . that would entitle him to
relief,”15 was the most expansive reading of Rule 8 that had yet (or since)
been offered. Once so articulated, the notice pleading standard
dominated the resolution of pre-discovery motions, at least rhetorically.16
Until Twombly and Iqbal, the Supreme Court had maintained a
relatively consistent commitment to Conley’s notice pleading rule, twice
unanimously rejecting heightened pleading standards in civil rights and
employment discrimination cases.17 Admonishing lower courts to adhere
to Conley’s liberal pleading standard, the Court specifically recognized
that the purported justification for heightened pleading standards was to
screen out unmeritorious suits.18 The Court acknowledged that there
might be “practical merits” to heightened pleading, but reminded the
lower courts that such changes may be obtained only “by the process of
amending the Federal Rules” (or by Congressional action), not by
judicial fiat.19
In Twombly, however, the Court adopted a “plausibility” standard in
an antitrust case, expressing its specific concern in the antitrust context
that liberal pleading rules, combined with expansive discovery, would
pressure defendants to settle weak or meritless cases.20 Twombly also
overruled at least that part of Conley which cautioned district courts not
to dismiss a case for insufficient pleading unless they can conclude that

15. Conley, 355 U.S. at 45-46.
16. Christopher Fairman has argued that notice pleading has rarely been the rule, at least
in practice, pointing to examples from antitrust, RICO, environmental, civil rights,
intellectual property, and defamation cases, among others, in which lower courts
have constructed a variety of heightened pleading standards. See Fairman, supra
note 21 at 998-1011 (summarizing different categories of heightened pleading).
17. See Swierkiewicz v. Sorema, 534 U.S. 506, 512-13 (2001) (explaining that
discovery and summary judgment, not heightened pleading requirements, are the
proper means for disposal of unmeritorious suits); Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) (stating
that heightened pleading standard for Section 1983 claims against municipalities
is “impossible to square … with the liberal system of ‘notice pleading’ set up by
the Federal Rules”); see also Crawford-El v. Britton, 523 U.S. 574, 595 (1998)
(“[O]ur cases demonstrate that questions regarding pleading, discovery, and
summary judgment are most frequently and most effectively resolved either by the
rulemaking process or the legislative process.”).
18. Swierkiewicz, 534 U.S. at 514-15; Leatherman, 507 U.S. at 168.
19. Swierkiewicz, 534 U.S. at 514-15 (quotation marks omitted).
20. 550 U.S. at 559-60.

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the plaintiff cannot “prove any set of facts” consistent with the
defendant’s liability.21
The Court’s decision in Iqbal made clear that “plausibility” pleading
applied in all civil cases, not just antitrust.22 Iqbal stemmed from the
treatment of Javaid Iqbal, a criminal detainee who was held in the most
restrictive conditions of confinement known in the federal detention
system (ADMAX SHU) while awaiting trial on charges related to his use
of a contrived social security number. Mr. Iqbal was arrested shortly
after September 11, 2001, and he alleged that he was treated as a terrorist
suspect (despite the lack of any evidence that he was involved in
terrorism) solely because of his race (South Asian), religion (Muslim),
and national origin (Pakistani). He was held in restrictive conditions,
where he was strip-searched every day, shackled whenever he left his
cell, housed in solitary confinement, and subjected to discrete instances
of misconduct by correction officials working in the MDC. He was told
that he was being considered “high security” and called a “terrorist,” but
like the other Arab and South Asian men who were held on the ADMAX
SHU at that time, he was never given an explanation as to what grounds
were relied upon to classify him as such.
Mr. Iqbal was eventually released from the ADMAX SHU, after
which he pleaded guilty and served a brief prison sentence. He was then
removed to his home country of Pakistan. He brought suit in 2004,
alleging causes of action under Bivens and its progeny, civil rights
statutes, and the Federal Tort Claims Act. A handful of high level
defendants moved to dismiss his claims, arguing that they were entitled
to qualified immunity because the law after September 11 was so unclear
that they could not have reasonably anticipated being held accountable
for violations of the constitution. The district and appellate courts
rejected these arguments,23 and the defendants petitioned for certiorari,
emphasizing the sufficiency of the complaint’s allegations of discrimination rather than the issue of qualified immunity.
On May 18, 2009, the Supreme Court issued its opinion in Iqbal.24
By a 5-4 vote, the Court held that Mr. Iqbal had failed to allege a
plausible claim for relief under the Equal Protection Clause.25 Justice
21.
22.
23.
24.
25.

Id. at 561-63.
Iqbal, 129 S. Ct. at 1949-50.
See Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007).
556 U.S. ___, 129 S.Ct. 1937 (2009).
The Court did not explicitly address plaintiff’s claims under 42 U.S.C. § 1985(3),
but the reasoning of the Court’s Equal Protection holding makes clear that the
Section 1985(3) claims were not viable.

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Kennedy authored the majority opinion, joined by Chief Justice Roberts
and Justices Scalia, Thomas, and Alito. Justice Souter, the author of
Twombly, authored the principal dissent, joined by Justices Stevens,
Ginsburg, and Breyer.26
After addressing subject matter jurisdiction arguments that had been
raised by Mr. Iqbal,27 the Court turned to the merits of the dispute.
Proceeding to the issue of whether Mr. Iqbal had alleged a Bivens cause
of action under either the Equal Protection Clause or the free expression
clause of the First Amendment, the Court first spent some time
addressing the scope of supervisory liability. The parties had not briefed
the issue, because they had agreed that (1) Bivens liability could not be
based on a respondeat superior theory and (2) supervisory Bivens
liability could be based on a “knowledge and acquiescence” theory.
Without requesting briefing or argument on the issue, however, the Court
held that the “knowledge and acquiescence” theory was insufficient, at
least in the context of equal protection claims, where the Court stated
that a discriminatory intent was necessary.28
From there, the Court turned to the pleadings. The Iqbal majority
reviewed the Twombly decision in depth, making clear that Twombly
applied beyond the antitrust context in which it was announced.29 And
from Twombly the Court discerned a two step process for evaluating a
complaint under Rule 12. First, a reviewing court must examine each
allegation in a complaint and exclude from consideration those
allegations that are stated in a “conclusory” fashion. Although the Court
did not explain precisely what is meant by conclusory, it did offer some
guidance: allegations that are mere “legal conclusions” or that are
“[t]hreadbare recitals of the elements of a cause of action” will not
suffice at the pleading stage.30 Once a court adjudicating a motion to
dismiss has excluded all conclusory allegations from the calculus, it may
conduct the second step, which is to assess the “plausibility” of the
connection between the facts alleged and the relief claimed.31 Thus, the

26. Justice Breyer authored a brief dissent in which he emphasized the role that
cogent case management by lower courts could play in ameliorating the concerns
that liberal pleading rules would interfere with Government functions by imposing
burdensome discovery. 129 S. Ct. at 1961-62 (Breyer, J., dissenting).
27. Although the Court’ reasoning regarding subject matter jurisdiction is important,
it is beyond the scope of this presentation to address it.
28. Id. at 1948-49.
29. Id. at 1949-50.
30. Id. at 1949.
31. Id. at 1950.

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Court held, there is a gap between what a plaintiff has “alleged” and
what a plaintiff has “shown,” and plausibility analysis fills that gap,
informed by the judge’s “judicial experience and common sense.”32
As applied to Mr. Iqbal’s complaint, the Court first excluded those
allegations which it deemed conclusory. The most critical of these was
paragraph 96 of the complaint which alleged that the defendants “knew
of, condoned, and willfully and maliciously agreed to subject [him]” to
harsh conditions of confinement “as a matter of policy, solely on account
of [his] religion, race, and/or national origin and for no legitimate
penological interest.”33 The Court also identified two other paragraphs of
the complaint as conclusory, one which identified Ashcroft as the
“principal architect” of the discriminatory policy and the other which
alleged that Mueller was “instrumental” in the policy’s adoption.34
According to the Court, these allegations were to be ignored not because
they were “unrealistic or nonsensical,” but because they merely recited a
critical element of an equal protection violation, which is that a
defendant must take action “because of, not merely in spite of,” its
disparate impact.35
Once these allegations were taken off of the table, the Court
considered the plausibility of plaintiff’s claim for relief against Messrs.
Ashcroft and Mueller based on the factual allegations that remained.
According to the Court, these were the following: (1) that “the [FBI],
under the direction of Defendant Mueller, arrested and detained
thousands of Arab Muslim men ... as part of its investigation of the
events of September 11,”; and (2) that “[t]he policy of holding postSeptember-11th detainees in highly restrictive conditions of confinement
until they were ‘cleared’ by the FBI was approved by Defendants
Ashcroft and Mueller in discussions in the weeks after September 11,
2001.”36 The Court accepted that these allegations “are consistent with
petitioners’ purposefully designating detainees ‘of high interest’ because
of their race, religion, or national origin” but that because there were
other “more likely explanations, [the allegations] do not plausibly
establish this purpose.”37

32.
33.
34.
35.

Id.
Id. at 1951.
Id.
Id. (citing Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979)
(internal quotation marks omitted).
36. Id. at 1951 (quoting Paragraphs 47 and 69, respectively, of the complaint)
37. Id.

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The alternative lawful explanation for the wholesale detention of
Arab, South Asian and Muslim men could also be explained by the
application of ordinary and unobjectionable law enforcement techniques,
as the Court explained in the following paragraph:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who
counted themselves members in good standing of al Qaeda, an Islamic
fundamentalist group. Al Qaeda was headed by another Arab Muslim-Osama
bin Laden-and composed in large part of his Arab Muslim disciples. It should
come as no surprise that a legitimate policy directing law enforcement to arrest
and detain individuals because of their suspected link to the attacks would
produce a disparate, incidental impact on Arab Muslims, even though the
purpose of the policy was to target neither Arabs nor Muslims. On the facts
respondent alleges the arrests Mueller oversaw were likely lawful and justified
by his nondiscriminatory intent to detain aliens who were illegally present in
the United States and who had potential connections to those who committed
terrorist acts. As between that “obvious alternative explanation” for the arrests,
Twombly, supra, at 567, 127 S.Ct. 1955, and the purposeful, invidious
discrimination respondent asks us to infer, discrimination is not a plausible
conclusion.38

There are some aspects of Iqbal that left many questions: Given the
Court’s treatment of Paragraph 96, what facts are conclusory? Does
Swierkiewicz v. Sorema, a case involving the pleading standard for
employment discrimination claims, survive Iqbal? Is there a quantum of
plausibility – that is, does the plaintiff’s claim for relief have to be only a
smidgen more plausible than alternative theories? Is it sufficient if
the different theories are in equipoise? Or is there a high standard for the
defendant to show that the alternative theories are significantly more
plausible than the plaintiff’s theories? Does the Court’s rejection of
the “knowledge and acquiescence” theory of supervisory liability apply
to all constitutional claims, or only equal protection-type claims? For an
appreciation and understanding of these matters, we must turn to lower
courts, at least until the Supreme Court takes pleading up yet again.
III.

APPLICATIONS OF IQBAL’S PLEADING HOLDINGS IN LOWER
COURTS

A. Lower Court Treatments of “Conclusory” Allegations

The first key question prompted by Iqbal requires courts to
distinguish between “factual” and “conclusory” allegations.39 As noted
38. Id. at 1951-52.
39. The Third Circuit described the process for evaluating a complaint after Iqbal as
follows:

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above, Iqbal offers courts some guidance in this inquiry: we are told
that an allegation that merely mirrors the elements of a cause of action
is conclusory and not to be credited. But the guidance is less than
crystal clear. Thus, it is impossible to draw any universalizable
conclusions about the way in which lower courts have treated
arguments about the conclusory nature of particular pleadings. There
are many general matters about which the debate is ongoing. Lower
courts have disagreed as to whether allegations which fail to
distinguish among defendants are by definition conclusory or not.40
There has been some disagreement about whether the Form
Complaints incorporated by the Federal Rules are now inadequate
under Iqbal.41 But there also are some areas for which a majority rule
may be emerging. For instance, courts have seemed somewhat willing
to forgive thin pleadings when the extent of informational asymmetry

First, the factual and legal elements of a claim should be separated. The
District Court must accept all of the complaint’s well-pleaded facts as
true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a ‘plausible claim for relief.’
Fowler v. UPMC Shadyside, 2009 WL 2501662 (3rd Cir. 2009).
40. Compare Penalbert-Rosa v. Fortuno-Burset, 2010 WL 759139, *2 (D. Puerto Rico
2010) (Allegation conclusory because they do not distinguish among different
defendants.); Arar v. Ashcroft, — F.3d —, 2009 WL 3522887 (CA2 2009)
(same); Warren v. Luzerne County, 2010 WL 521130, *6 (M.D.Pa. 2010) (same);
In re Travel Agent Commission Antitrust Litigation, 583 F.3d 896 (CA6 2009)
(same); Short v. Sanzberro, 2009 WL 5110676 (ED Cal. Dec. 18, 2009) (failure to
distinguish among defendants fatal to section 1983 claim); with Brenes-Laroche v.
Toledo Davila, 2010 WL 431389, *5-6 (D. Puerto Rico 2010) (allegations that did
not distinguish among different defendants, at least for certain claims, found
sufficient); Narodetsky v. Cardone Industries, Inc., 2010 WL 678288 (E.D.Pa.
2010) (same); Consumer Protection Corp. v. Neo-Tech News, 2009 WL 2132694
(D. Ariz. July 16, 2009) (references to defendants generally sufficient).
41. Compare Mark IV Industries Corp. v. Transcore, L.P., 2009 WL 4403187 (DDEL
2009) (In patent action, the court denied the motion to dismiss because the
complaint’s allegations conform with Form 18 of the FRCP); with Anthony v.
Harmon, 2009 WL 4282027 (ED Cal. Nov. 25, 2009) (stating that Form
complaints “have been cast into doubt”); Doe v. Butte Valley Unified School
Dist., 2009 WL 2424608, *8 (E.D. Cal. Aug. 6, 2009) (calling into question
whether, after Iqbal, the FRCP Form Complaints are still sufficient). Cf. The
Cincinnati Ins. Co. v. Tienda La Mexicana, Inc., 2009 WL 4363450 (WDVA
2009) (allegation that insured “negligently” caused fire was sufficient to state a
claim for breach of insurance contract).

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between the parties is high.42 And Iqbal has been applied without much
discussion to affirmative defenses.43
For the most part, however, the lower courts are going in many
different directions in interpreting what kinds of allegations are
“conclusory” under Twombly and Iqbal. Sometimes the difficulty is
addressing allegations that are a mix of law and fact, such as
allegations as to disability,44 dangerousness,45 and bribery,46 to take
only a few examples. Relatedly, some courts treat allegations as to

42. Connolly v. Smugglers’ Notch Mgmt. Co., 2009 WL 3734123 (D. Vt. Nov. 5,
2009) (Not necessary for FLSA plaintiff to allege specific time periods when she
worked overtime, given informational asymmetry); Morgan v. Hubert, 2009 WL
1884605 (CA5 2009) (discovery ordered where “key facts are unknown” and
solely within defendant’s possession); Young v. City of Visalia, — F.Supp.2d —,
2009 WL 2567847 (E.D. Cal. Aug. 18, 2009) (Not requiring that plaintiff make
separate allegations as to each defendant where plaintiff was not in room where
defendants executed search); EEOC v. Scrub, Inc., 2009 WL 3458530 (N.D. Ill.
Oct. 26, 2009) (litigants “entitled to discovery before being put to their proof”);
Tompkins v. Lasalle Bank Corp., 2009 WL 4349532 (N.D. Ill. Nov. 24, 2009) (in
discrimination case hinging on whether parent company could be deemed
plaintiff’s employer or whether parent company might be liable, 12(b)(6) motion
was denied where discovery was necessary to determine liability.); Pasqualetti v.
Kia Motors America, Inc., 2009 WL 3245439 (N.D. Ohio Sept. 30, 2009) (Where
evidence supporting allegations of fraud are in defendants’ possession, it is
enough for plaintiff to have “articulated a plausible fraudulent intent and
scheme.”).
43. Tracy v. NVR, Inc., 2009 WL 3153150 (WDNY Sept. 30, 2009); Tran v. Thai,
2010 WL 723633, 1 -2 (S.D. Tex. 2010); Hayne v. Green Ford Sales, Inc., 2009
WL 5171779, *2-4 (D. Kan. 2009).
44. Lawson v. Ellison Surface Technologies, Inc., 2010 WL 935361, *1-2 (E.D. Ky.
2010) (Allegation that plaintiff is disabled, without alleging facts that show he
satisfies this condition, is conclusory). But see Doe v. Astrue, 2009 WL 2566720
(N.D. Cal. Aug. 18, 2009) (allegation that plaintiff was “otherwise qualified” for
benefits was not conclusory).
45. Stevens v. Spegal, 2010 WL 106603, *2 (E.D. Mo. 2010) (allegations that snow
blade constituted a “dangerous condition” and that it presented a “reasonably
foreseeable risk of harm” were conclusory); see also Altman v. HO Sports Co.,
Inc., 2009 WL 4163512 (ED Cal. Nov. 23, 2009) (allegations that product did not
meet consumer expectations; that product defects were substantial causes of
plaintiff’s injuries; and that there was an inadequate warning of a “known risk of
injury” were conclusory without explanation of why the product did not meet
expectations, how it caused injury, and what warnings were insufficient).
46. Dauphinais v. Cunningham, 2009 WL 4545293 (D. Conn. Nov 30, 2009)
(Plaintiff’s allegation that he believed defendant had bribed state officials was
conclusory). But see Halpin v. David, 2009 WL 2960936, *2-3 (N.D. Fla. 2009)
(“That a defendant took a bribe is a factual allegation that must be accepted as
true.”).

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whether a private individual is acting under color of law as factual,47
and others treat it as conclusory.48 Even allegations relating to the
status of plaintiffs, tinged with both legal and factual elements, have
been subjected to varying treatment by lower courts.49
For the purposes of prisoner’s rights claims, allegations of a
defendant’s state of mind are perhaps most significant, and
unsurprisingly these kinds of allegations have been heavily litigated
post-Iqbal. There is thus a broad dispute over whether “general”
allegations of state of mind are sufficient on their own.50 Courts differ
47. Carpenter v. Kloptoski, 2010 WL 891825, 5 (M.D.Pa. 2010) (extensive factual
allegations sufficient to support claim of private actor acting under color of law);
Huxtable v. Geithner, 2009 WL 5199333 (S.D. Cal. Dec. 23, 2009) (allegation
that private lender defendants are effectively acting as government agents for
federal loan program was sufficient to allege action under color of law).
48. See Claudio v. Sawyer, 2009 WL 4929260 (SDNY Dec 23, 2009) (Allegation that
off-duty officer was acting under color of law was conclusory in the absence of
factual showing that officer was acting in capacity as police officer); McCain v.
Episcopal Hosp., 2009 WL 3471274, *1-2 (CA3 2009) (allegation that private
hospitals acted under color of state law was conclusory); Francis v. Giacomelli, —
F.3d —, 2009 WL 4348830 (4th Cir. 2009) (Fourth Amendment claim
implausible because it “did not allege that the defendants were engaged in a lawenforcement effort”; instead, the facts showed that the defendants’ actions were
those of a government employer retrieving its property from terminated
employees and escorting them off the premises); Sinaltrainal v. Coca-Cola Co.,
578 F.3d 1252 (11th Cir. 2009) (allegation that paramilitaries were acting under
color of law is conclusory).
49. U.S. ex rel. Duxbury v. Ortho Biotech Products, L.P., 579 F.3d 13, 28 (CA1 2009)
(allegation that relator in qui tam action was “original source” was conclusory
when based on allegation that relator had “direct and independent knowledge of
information on which the allegations are based, and have provided such
information to the United States before filing suit, as required by 31 U.S.C. §
3730(e)(4).”); Haskins v. VIP Wireless Consulting, 2009 WL 4639070 (WDPA
2009) (in FLSA action, allegation that plaintiff was not a salaried employee was
not conclusory).
50. Compare Brenes-Laroche v. Toledo Davila, 2010 WL 431389, *5-6 (D. Puerto
Rico 2010) (general allegations of defendants’ state of mind found sufficient);
Young v. Speziale, 2009 WL 3806296 (DNJ 2009) (general allegations may be
sufficient in deliberate indifference context.); Henderson v. Fries, 2009 WL
3246673 (N.D. Ind. Oct. 5, 2009) (sufficient for plaintiff to state that plaintiff had
a serious medical need in jail and that jail officials denied him medical attention);
Capps v. US Bank Nat’l Ass’n, 2009 WL 5149135 (D. Or. Dec. 28, 2009)
(general allegations assumed to include specific facts necessary to support them);
Consumer Protection Corp. v. Neo-Tech News, 2009 WL 2132694 (D. Ariz.
July 16, 2009) (same); with First Medical Health Plan, Inc. v. CaremarkPCS
Caribbean, Inc., 2010 WL 391305, *5-6 (D. Puerto Rico 2010) (general allegation
of state of mind insufficient); Cuevas v. City of New York, 2009 WL 4773033
(SDNY Dec 07, 2009) (general allegations of Monell liability insufficient;

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over whether allegations of discriminatory or retaliatory intent are
factual or conclusory.51 They differ over whether an allegation that a

complaint was “heavy on descriptive language” but “light on facts”); Fabian v.
Dunn, 2009 WL 2567866, *4-5 (W.D. Tex. 2009) (allegation that defendants
acted with deliberate indifference is conclusory).
51. For cases treating discriminatory allegations alone as conclusory, see PenalbertRosa v. Fortuno-Burset, 2010 WL 759139, *2 (D. Puerto Rico 2010); DelgadoO’Neil v. City of Minneapolis, 2010 WL 330322, *10-11 (D. Minn. 2010)
(allegation that defendant took several adverse employment actions “in
retaliation” for plaintiff’s protected conduct were conclusory); Holmes v.
Poskanzer, 2009 WL 2171326 (CA2 2009) (Allegation that defendants were “not
impartial” was conclusory and, without facts to support actual bias or conflict of
interest, could not state due process claim); Nali v. Ekman, 2009 WL 4641737
(CA6 2009) (allegation that defendants were racially biased and had animosity
toward plaintiff was conclusory); Short v. Sanzberro, 2009 WL 5110676 (ED Cal.
Dec. 18, 2009) (allegation of retaliation conclusory absent specific facts to support
retaliatory motive for defendants). For cases treating such allegations as factual,
see Fowler v. UPMC Shadyside, 578 F.3d 203 (CA3 2009); P.W. v. Delaware
Valley School Dist., 2009 WL 5215397, *3-4 (M.D. Pa. 2009) (Allegation of
disability discrimination sufficient where plaintiff alleges that he is a
“handicapped person who has a mental impairment which substantially limits his
life activities” and who was “denied” a “meaningful educational benefit.”); Riley
v. Vilsack, — F. Supp. 2d —, 2009 WL 3416255 (W.D. Wis. Oct. 21, 2009)
(plaintiff’s allegations of age discrimination survive because they are “more than
conclusions,” in that plaintiff alleges that “defendants targeted for outsourcing the
job responsibilities of older workers while making comments about their
preference for younger workers”); Paris v. Faith Props, Inc., 2009 WL 4799736
(N.D. Ind. Dec. 8, 2009) (plaintiff adequately pleaded retaliation under Title VII
where she provided details about her complaints about acts of sexual harassment
of discrimination and alleged that her employment was terminated as a result);
Retaliation claim sufficient where plaintiff alleged that adverse employment
action taken after plaintiff complained of discrimination. Harman v. Unisys Corp.,
2009 WL 4506463 (CA4 2009); Committee for Immigrant Rights v. County of
Sonoma, 644 F.Supp.2d 1177 (N.D. Cal. 2009) (sufficient for plaintiffs to allege
that defendant engaged in a racially biased policy of stopping those perceived to
be Latino); Mack v. Wilcox County Com’n, 2009 WL 4884310, *5 (S.D. Ala.
2009) (allegation that black employees paid less than white employees and
subjected to other disparate treatment on account of race stated discrimination
claim); Miller v. Eagle Tug Boat Companies, 2009 WL 4751079, *4-5 (S.D. Ala.
2009) (allegation that white applicants treated differently than plaintiff were
sufficient to state plausible Title VII claim); Rouse v. Berry, 2010 U.S. Dist.
LEXIS 7474 (D.D.C. Jan. 29, 2010) (stating that all employment discrimination
plaintiff has to allege is that he was subjected to adverse action “because of” a
protected class status); Floyd-Keith v. Homecomings Financial, LLC 2010 WL
231575, *2 (M.D. Ala. 2010) (allegation that the defendants treated her differently
from similarly situated white people during the lending process and denied her a
loan based on her race was plausible).

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defendant “knew” or was “aware” of a particular fact is conclusory52
or factual.53
52. See, e.g., Choate v. Merrill, 2009 WL 3487768, *6 (D. Me. 2009) (in Eighth
Amendment case, allegation of supervisors knowledge of and indifference to lack
of adequate life-saving equipment and training was conclusory); Milne v.
Navigant Consulting, 2009 WL 4437412 (SDNY Nov 30, 2009) (retaliation claim
implausible where no facts supported allegation that defendant was aware that
plaintiff intended to file Title VII claim); Jones v. Hashagen, 2010 WL 128316,
*4 (M.D.Pa. 2010) (plaintiff’s allegation that the superintendent “failure to take
action to curb Inmate Mitchell’s pattern of assaults, known or should have been
known to [him], [and] constituted deliberate indifference” is conclusory); Garvins
v. Hofbauer, 2009 WL 1874074 (W.D. Mich. June 26, 2009) (allegation that
defendants were “aware” of plaintiff’s medical condition insufficient to state
claim for deliberate indifference); Kasten v. Ford Motor Co., 2009 WL 3628012
(E.D. Mich. Oct. 30, 2009) (allegation of defendant’s awareness insufficient
without some statement of source of awareness); Long v. Holtry, 2009 WL
4269424 (MDPA 2009) (Allegation that defendants developed policy to shut
down plaintiffs’ foster home and that defendants failed to adequately train and
supervise employees regarding seizures and notice process was conclusory in
Monell case); ; Smith v. District of Columbia, 2009 WL 4849054, *2-3 (D.D.C.
2009) (allegation that District “knew of” specific systemic problems with medical
care in prisons was conclusory).
53. See, e.g., Decker v. Borough of Hughestown, 2009 WL 4406142 (MDPA 2009)
(allegation that Defendants “knew or should have known of Plaintiff’s right to
express himself in such a manner” was sufficient to support failure to train claim
in First Amendment Monell case); Gioffre v. County of Bucks, 2009 WL 3617742
(EDPA 2009) (in §1983 (Eighth Amendment) case, finding following allegations
sufficient: plaintiff needed medical examination upon admission; exam was not
provided because of policies and practices of prison; defendants had tolerated
practice of denying care to preserve resources; and defendants were on notice);
Mallinckrodt Inc. v. E-Z-Em Inc., 2009 WL 4496021 (DDEL 2009) (in patent
case, the plaintiff satisfied the pleading standard for an infringement claim by
alleging that defendant “became aware” of patent “shortly after” its issuance and
that defendants “actively induced” infringing acts); Lewis v. Jordan, 2009 WL
3718883, *5 (MDNC 2009) (Fourth Amendment claim sufficient where complaint
alleged that “Defendant Robinson . . . arrested Plaintiff without probable cause
and that Defendants knew there was no probable cause.”); Evans v. Tavares, 2009
WL 3187282 (N.D. Ill. Sept. 30, 2009) (allegation that defendants knew plaintiff
had committed no crime but arrested him anyway was sufficient); Schoppel v.
Schrader, 2009 WL 1886090 (N.D. Ind. June 30, 2009) (allegation that county
council was on notice that jail was inadequately funded and understaffed, and that
another inmate had died because of inadequate medical care, sufficient to state
Section 1983 claim based on inadequate funding); Smith v. Sangamon County
Sherriff’s Dep’t, 2009 WL 2601253 (C.D. Ill. Aug. 20, 2009) (allegation of
sheriff’s knowledge that he had housed plaintiff with a violent inmate was not
conclusory); Allegation that plaintiff was arrested without probable cause was not
conclusory. Velazquez v. Office of Ill. Sec’y of State, 2009 WL 3670938 (N.D.
Ill. Nov. 2, 2009); AMX Int’l, Inc. v. Battelle Energy Alliance, LLC, 2009 WL

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Unsurprisingly, there has been the hint of required fact pleading
in certain areas of litigation. Some courts have suggested that
discrimination plaintiffs must make some factual allegation about
similarly situated individuals who were treated more favorably in
order to state a claim for disparate treatment.54 But a significant
number of courts have rejected heightened fact pleading in the
discrimination context.55 Courts have seemed to approach fact
pleading in some other civil rights cases as well. Where a Section
1983 complainant alleged that a Mayor participated in and executed
raids in which household pets were confiscated and killed, the First

5064561 (D. Idaho Dec. 16, 2009) (general allegation of knowledge is sufficient,
but not general allegation of intent to interfere with contracts); Decker v. Borough
of Hughestown, 2009 WL 4406142 (MDPA 2009) (Allegation that Mayor
“created policy of using disorderly conduct citations as viewpoint based
restictions” and that Mayor was deliberately indifferent and failed to train officers
on proper procedures was sufficient to state Monell claim); Excelsior Ins. Co. v.
Incredibly Edible Delites, 2009 WL 5092613, *2-3 (E.D.Pa. 2009) (allegation
that, “[i]n knowing and willful breach of the insurance policy, Excelsior has
refused to reimburse or defend that Counterclaim Plaintiffs for their covered
claims under the Policy,” is alone a sufficient allegation of a breach of a duty to
fulfill a contractual obligation); Vaden v. Campbell, 2009 WL 1919474, *3 (N.D.
Fla. 2009) (allegation of sheriff’s knowledge of deputy’s propensity for sexual
assault were not conclusory).
54. Lopez v. Bay Shore Union Free Sch. Dist., — F.Supp.2d —, 2009 WL 3720038
(EDNY Nov. 9, 2009) (statutory discrimination claim conclusory in the absence
of any allegations of different treatment of similarly situated individuals); Jenkins
v. Murray, 2009 WL 3963638 (CA3 2009) (same for equal protection claim);
McTernan v. City of York, Penn., 577 F.3d 521, 532 (CA3 2009) (same for First
Amendment religion claim); see also Francis v. Giacomelli, — F.3d —, 2009 WL
4348830 (4th Cir. 2009) (discrimination claim implausible where one of plaintiffs
was white and complained of exact same treatment as black plaintiffs); Moss v.
U.S. Secret Service, 572 F.3d 962 (CA9 2009) (dismissing First Amendment
claim where allegations did not support inference of disparate treatment of
similarly situated groups); Hughes v. America’s Collectibles Network, Inc., 2010
WL 890982, 4 (E.D. Tenn. 2010) (in age-discrimination claim, plaintiff’s
allegation that she was in “protected class” and that replacement employee was
not is insufficient – plaintiff did not allege what her age is and did not allege
anything to support a “pattern” of discrimination); Kasten v. Ford Motor Co.,
2009 WL 3628012 (E.D. Mich. Oct. 30, 2009) (finding age discrimination
complaint implausible because plaintiff did not provide age of replacement
employee). But see Kubicek v. Westchester County, 2009 WL 3720155 (SDNY
Oct. 8, 2009) (employment discrimination complaint found sufficient despite
failure to identify person who was hired to position to which plaintiff applied,
other than that person was African-American “and/or” younger than plaintiff, and
despite failure to identify who made discirmninatory hiring decisions).
55. Appendix B describes some of the most useful of these cases.

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Circuit treated that allegation as conclusory and not credited.56 And in
a school disciplinary case, the Second Circuit held that an allegation
that defendants were “not impartial” was conclusory without more
detail.57 There are numerous other cases in which lower courts have
treated Iqbal as establishing a fact-detailed pleading system, in
arguable contrast to the notice pleading system which prevailed preTwombly.58
There are plenty of counter-examples, some from the prison
context. In a case from the Southern District of Indiana, a court found
that an allegation that the defendant was “deliberately indifferent” to
serious medical needs was conclusory, but the same court found
factual the allegation that the defendant had “knowledge of the
substandard medical care provided to inmates” but “remained
indifferent to the medical needs of inmates at the facility.”59 In the
Eastern District of Pennsylvania,60 a district court focused on the
notice provided by the complaint and upheld a supervisory liability
claim that alleged that defendants had “established, tolerated or
ratified a practice, custom or policy of failing to provide necessary
medical care to inmates” because of the costs imposed by such
medical care.61 The court did so even though the complaint “lacks
much detail,” did not “identify the precise policy or practice
instituted by Defendants,” and were only “barely” more than “a
56. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009).
57. Holmes v. Poskanzer, 2009 WL 2171326, *1 (2d Cir. 2009).
58. Coleman v. Tulsa Cty. Bd. Of Cty. Comm’rs, 2009 WL 2513520, *3 (N.D. Okla.
Aug. 11, 2009) (stating that claim might have survived under Conley standard;
plaintiff alleged that she was sole female employee in her department and that she
was subjected to offensive and insulting remarks based upon her gender); Dorsey
v. Georgia Dept. of State Road and Tollway Auth., 2009 WL 247756, *7 (N.D.
Ga. Aug. 10, 2009) (allegations of “numerous” racially disparaging remarks
insufficient to state hostile work environment claim without greater detail
establishing that remarks were severe enough to alter the conditions of
employment); Carrea v. California, 2009 WL 1770130, *9 (C.D. Cal. June 18,
2009) (equal protection claim dismissed because although plaintiff alleged that no
white prisoner was ever treated the same as the plaintiff, there were no factual
allegations regarding housing, medical care, conditions of segregation or other
treatment of white prisoners); Lopez v. Beard, 2009 WL 1705674, *3 (3d Cir.
June 18, 2009) (unpublished op.) (per curiam) (claim based on HIV status
discrimination dismissed for lack of detail).
59. Estate of Allen ex rel. Wrightsmann v. CCA of Tennessee, LLC, 2009 WL
2091002, *2-3 (S.D. Ind. 2009)
60. Gioffre v. County Of Bucks, No. 08-4232, 2009 WL 3617742, at *5 (E.D. Pa.
Nov. 2, 2009).
61. Id.

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blanket, general assertion of entitlement to relief.”62 Appendix A,
found at the end of this written material, provides additional
examples of significant post-Iqbal pleading cases, mostly from the
prison context.
Although it is virtually impossible to draw complete lessons from
each of these cases, because they are fact-intensive, it is apparent that
courts are more willing to consider factual allegations that appear to
be based on the plaintiff’s personal knowledge rather than
assumptions.63 Thus, if a prisoner alleges that a guard knew of “X”
fact (because the prisoner told the guard), courts are more likely to
find that allegation factual than an allegation that a supervisor knew
of “x” fact (because the prisoner wrote a letter to the supervisor).
This is not to say that pleading on information and belief is no longer
permissible; indeed, few courts have addressed this issue and most
who have have confirmed that information and belief pleading
remains alive and well. It is only a sign that judges are, explicitly or
not, relying on their “judicial experience and common sense” to
assess the basis for a prisoner’s allegation of the state of mind of a
defendant.64
Relatedly, however, judges continue to appear to be willing to
draw inferences that are obvious from the asserted facts. In excessive
force cases, if a prisoner alleges that he was beaten and had acted in
no way to trigger the assault, most judges will draw an inference that
the officer possessed the necessary state of mind from these facts.
Similarly, if a plaintiff alleges that she informed a medical provider
of her serious medical problem and the provider ignored her, most
courts will find this sufficient to state a deliberate indifference claim.
Again, all of this information is within the personal knowledge of the
plaintiff.
However, there are risks to alleging too much that is within a
plaintiff’s personal knowledge. For instance, a plaintiff might provide
62. Id.
63. See, e.g., Bush v. Horn, 2010 WL 1712024, *4-5 (S.D.N.Y. Mar 02, 2010)
(casting doubt on allegations against commissioner because court could not
imagine how prisoner could have personal knowledge of state of mind of such a
high level defendant, but permitting claim to go forward against lower level
defendant).
64. E.g., Sanchez v. Pereira-Castillo, 590 F.3d 31, 41-44 (CA1 2009) (finding
prisoner’s Fourth Amendment claim sufficient against some defendants but not
others, in large part because certain defendants were directly involved in
unreasonable search and allegations against supervisory defendants were
conclusory).

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so many details of an encounter that lead to excessive force that a
court will consider the allegations of sadistic and malicious use of
force to be implausible.65 Complaints that detail each of a plaintiff’s
visits to the medical clinic might establish, from a court’s
perspective, that the defendants were not at all deliberately indifferent
to the prisoner’s serious medical needs.
It also seems fair to observe that Iqbal has been received with
less favor in some circuits. The Seventh Circuit, for instance, has
suggested that it be limited to its facts or at least to cases involving
costly discovery or qualified immunity (the latter limitation would
still leave Iqbal applying in full force in prisoner damages’ actions
individual defendants). Some district courts have suggested that it be
given narrower application where there is a large amount of
informational asymmetry and most of the relevant factual detail is
within the defendant’s possession.
B. Lower Court Treatment of Plausibility

When a court considers the plausibility of a plaintiff’s claim for
relief vis a vis other alternative plausible explanations, a key issue is
implied in the analysis: the comparative level of plausibility of the
plaintiff’s theory versus the alternative explanatory theories. If the
plaintiff’s theory must be more plausible than the alternative lawful
explanations, then it has substantially different consequences than if
the alternative lawful explanations have to be significantly more
plausible than the plaintiff’s theory. The Supreme Court did not
resolve this question, other than to suggest, as it did in Twombly, that
the alternative explanation must be “obvious” in order for the
plaintiff’s claim to be implausible.66
Courts have taken varying approaches to plausibility analysis.
Some have insisted that any alternative explanation from the
defendant must be much more obvious than the plaintiff’s theory of
relief to render a claim “implausible.”67 Some have simply insisted
65. E.g., Hamer v. Jones, 2010 WL 44350, *3 (CA10 Feb. 9, 2010) (dismissing
complaint where plaintiff admitted that “his complaints triggered the use of
force,” and did not allege that the officers did more than necessary to bring him to
the floor).
66. 129 S. Ct. at 1951.
67. Arkansas PERS v. GT Solar Int’l, Inc., 2009 WL 3255225 (D.N.H. Oct. 7, 2009)
(defendants’ alternative explanation does not render plaintiff’s complaint
implausible because defendant’s explanation is not “obvious”); Chao v. Ballista,
630 F.Supp.2d 170 (D. Mass. 2009) (defendant’s explanation has to be “so

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that the defendant’s explanation be more plausible than the
plaintiff’s.68 Thus, a court has found that rather than believe that a
warden transferred a prisoner because of deliberate indifference to
contagious diseases, it was “more likely” that the warden relied on
the advice of competent professionals and was not deliberately
indifferent.69 Similarly, a court hearing a retaliation claim filed by a
prisoner found it “more likely” that the prisoner was transferred to
segregation for his own safety and not because of retaliation for his
complaints.70 Finally, some courts have failed to address the quantum
of plausibility at all, while suggesting that it is a high hurdle for
plaintiffs to overcome.71
Along with determining the quantum of plausibility, lower courts
have had to take up the Supreme Court’s invitation to use their
“judicial experience and common sense” to mediate the plausibility
analysis. In the Southern District of New York, for example, a court
dismissed a Section 1983 claim against the City of New York which
had alleged that a Fourth Amendment violation was the result of an
unwritten City policy, finding it more plausible to believe that the

68.

69.
70.
71.

overwhelming, that the claims no longer appear plausible”); Destro v. Hackensack
Water Co., 2009 WL 3681903 (DNJ 2009) (plaintiff’s claim plausible where there
“could” be a violation of duty of fair representation); Gonzalez v. Kay, 577 F.3d
600 (CA5 2009) (Plaintiff can state a claim where “reasonable minds can differ”
about whether particular conduct violates the FDCPA);
In re Travel Agent Commission Antitrust Litigation, 583 F.3d 896 (CA6 2009)
(where defendants’ explanation is “just as likely” as plaintiffs’ explanation,
plaintiffs’ claim is implausible); Phillips v. Bell, 2010 WL 517629, *6-8 (CA10
2010) (finding complaint implausible because “more plausible” reasons exist for
alleged conduct); Blanchard v. Yates, 2009 WL 2460761, *3 (E.D. Cal. July 27,
2009).
Blanchard, 2009 WL at *3.
Lacy v. Tyson, 2009 WL 2777026, *4 (E.D. Cal. Aug. 27, 2009).
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, 2009 WL 5126224 (CA4 Dec. 29,
2009) (dissent characterizes the majority as applying an incorrect “rule that the
existence of any other plausible explanation that points away from liability bars
the claim.”); Errivares v. Transportation Sec. Admin., 2010 WL 610774, *2
(D.Md. 2010) (allegation of conversion is not plausible where facts show only that
defendant’s employee “could have acted wrongfully”); but see Braden v. WalMart Stores, Inc., — F.3d —, 2009 WL 4062105 (8th Cir. 2009) (“Just as a
plaintiff cannot proceed if his allegations are merely consistent with a defendant’s
liability, so a defendant is not entitled to dismissal if the facts are merely
consistent with lawful conduct.”); Al-Kidd v. Ashcroft, 580 F.3d 949 (CA9 2009)
(claims are plausible so long as they are not unreasonable); U.S. ex rel. Lusby v.
Rolls-Royce Corp., 570 F.3d 849, 854-855 (7th Cir. 2009) (clarifying that
pleading not exclude all alternative possibilities to be plausible).

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officer who carried out the search “was a rogue officer who
disobeyed City policy.”72 In a suit against a Tennessee County under
a “class of one” theory of equal protection, the Court found an
“obvious alternative explanation” for the differential treatment of
plaintiffs was that the defendants “made a mistake in applying the
law,” not that they singled out plaintiffs for pernicious reasons.73
Arguably, courts could also rely on their experience and common
sense to amplify a plaintiff’s pleadings by taking notice of some
particularly well-recognized problem.74 A District of Massachusetts
judge did precisely this in a prison case involving supervisory
liability for sexual assault, reasoning that there was widespread
knowledge of the problem of sexual assault in prison.75 And one
Eastern District of New York judge surveyed his colleagues to
determine that there was “anecdotal evidence of repeated, widespread
falsification by arresting police officers of the New York City Police
Department” that was widespread enough to suggest the existence of
a custom or policy of lying by police officers in criminal matters.76
Similarly, the Northern District of Illinois found a supervisory
liability claim plausible where the plaintiff alleged that the prison was
infested with vermin and unfit for human habitation.77 The court
reasoned that “an inference of involvement was justified to sustain
claims asserted against certain senior officials, such as the county
sheriff or the prison warden, when the claims alleged” systemic
rather than “localized” conditions.78 Plausibility is obviously an
easier inquiry when the allegations establish a defendant’s presence
or direct involvement in misconduct.79
72. 5 Borough Pawn, LLC v. City of New York, __ F. Supp. 2d __, 2009 WL
1834584, *24 (S.D.N.Y. June 22, 2009)
73. Arnold v. Metropolitan Gov’t of Nashville and Davidson County, 2009 WL
2430822, *5 (M.D. Tenn. Aug. 6, 2009); see also Chassen v. Fidelity Nat.
Financial, Inc., 2009 WL 4508581 (DNJ 2009) (allegation that defendants were
part of RICO enterprise was conclusory, in part based on the court’s “common
experience.”).
74. Chao v. Ballista, __ F. Supp. 2d __, 2009 WL 1910954, *5 (D. Mass. July 1,
2009).
75. Id.
76. Colon v. City of New York, Nos. 09-CV-8, 09-CV-9, 2009 WL 4263362, at *1,
*2 (E.D.N.Y. Nov. 25, 2009)
77. Lieberman v. Budz, 2010 WL 369614 (N.D. Ill. 2010).
78. Id.
79. Tavares v. City of New York, 2010 WL 234974 (S.D.N.Y. Jan 19, 2010) (Plaintiff
alleges a plausible bystander liability use of force claim by asserting that captain
and officer watched assault for at least three minutes; use of force stopped when

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C. Suggestions for Addressing Issues of Conclusoriness
and Plausibility

As I suggested at the outset, in many ways it is too early to take
the pulse of courts as to the significance of Iqbal. But the lower court
decisions that have applied it so far suggest some troubling trends.
First, there is a high level of confusion and discord in the lower
courts. Applications of “conclusory” range far and wide, and even
within the same courthouse there are varying interpretations.
Nonetheless, there are important ways in which a holding that a
particular allegation is conclusory may have limited impact on a
litigant’s ability to obtain relief. After all, as long as a plaintiff has
leave to amend, it may be possible to replead in such a way as to
avoid making conclusory allegations, especially where parties are
represented by counsel; even the Iqbal Court acknowledged that
factual allegations are to be taken as true and that all inferences are to
be drawn in favor of a plaintiff.
Dealing with plausibility raises more difficult issues. If a court
decides that a plaintiff’s theory of relief is implausible in comparison
to other alternative explanations, it is not obvious that the court’s
conclusion would change upon repleading. It therefore strikes me that
it is worthwhile for litigants and courts to think carefully about the
correct standard for plausibility. This may be accomplished by
focusing on the relationship between the plausibility required by Rule
8 and the ultra-heightened pleading standard mandated by the Private
Securities Litigation Reform Act. The same Term that the Supreme
Court decided Twombly, it also announced Tellabs Inc. v. Makor
Issues & Rights,80 a case interpreting the pleading standard for the
PSLRA. Specifically, the Court in Tellabs defined “plausibility” for
the purposes of the PSLRA as equipoise: that is, if the plaintiff’s
theory of relief was “at least as compelling” as the alternative
explanations, the complaint would survive a motion to dismiss under
the PSLRA. If we accept the common wisdom that the PSLRA sets
up a super-heightened pleading standard (higher than the particularity
commander ordered officer to stop); Marion v. Nickels, 2010 WL 446464
(W.D.Wis. 2010) (despite questions regarding likelihood of plaintiff’s claim,
prison retaliation case could go forward after plaintiff alleged that defendant
directed an officer to falsely alter a conduct report in retaliation for filing a
lawsuit; that another defendant retaliated against him by finding him guilty of the
conduct charged in the report; and that a third defendant continued the retaliation
by refusing to overturn the decision even though she knew it was false).
80. 551 U.S. 308 (2007),

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required for fraud allegations under Rule 9(b)), then it follows that
plausibility for the purpose of Rule 8 is met even if the plaintiff’s
theory is less plausible than alternative explanation. Indeed, it would
be incoherent to interpret plausibility any other way: requiring that a
plaintiff’s theory be more plausible than alternatives would lead to
the conclusion that Rule 8’s pleading standard is more demanding
than the PSLRA.
It is also worthwhile to consider the Seventh Amendment and
due process implications of dismissing a case on plausibility grounds.
The Seventh Amendment requires that, in all cases that would have
been tried before a jury at common law, the jury’s role to be
determine facts be preserved. The right to jury trial applies in
employment discrimination actions, even for relief that has been
characterized as equitable.81 Thus, although the Court has discounted
the Seventh Amendment implications of heightened pleading regimes
created by Congress or the Federal Rules,82 the Iqbal rule is the
product of neither.83 Obviously, to the extent that a court is making,
at the motion to dismiss stage, a factual determination that is
constitutionally committed to the jury, there are significant Seventh
Amendment concerns.84 These were never addressed in the Iqbal
decision because the Government was not arguing for a pleading
standard along the lines of that adopted by the Court in Iqbal.
Whether application of an Iqbal-type standard always results in
serious Seventh Amendment issues is not necessary to address here,
but there are certain cases where courts may cross the Seventh
Amendment line.

81. Hetzel v. Prince William County, 523 U.S. 208 (1998); Lytle v. Household Mfg.,
Inc., 494 U.S. 545 (1990); Chauffeurs, Teamsters and Helpers, Local No. 391 v.
Terry, 494 U.S. 558 (1990).
82. See Tellabs, 551 U.S. at 327 (“No decision of this Court questions that authority
in general, or suggests, in particular, that the Seventh Amendment inhibits
Congress from establishing whatever pleading requirements it finds appropriate
for federal statutory claims.”).
83. Indeed, to some extent the Court’s hesitance to impose heightened pleading as a
matter of judicial fiat, see Swierkiewicz, 534 U.S. at 515, Leatherman, 507 U.S.,
at 168, may reflect Seventh Amendment concerns.
84. For a more developed argument on these lines, see Kenneth S. Klein, Ashcroft v.
Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 NEB.
L. REV. 261 (2009); Kenneth S. Klein, Is Ashcroft v. Iqbal The Death (Finally) Of
The “Historical Test” For Interpreting The Seventh Amendment? 88 NEB. L. REV.
467 (2010).

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Finally, there are due process concerns whenever a court bases a
decision on factors that have not been disclosed to the parties. Nearly
every court of appeals has concluded that sua sponte dismissals for
failure to state a claim are inappropriate without providing an
opportunity to amend, unless there is no possibility that an amendment
could cure the defect.85 Thus, one could argue that just as a court would
not issue a sua sponte dismissal without giving a plaintiff the
opportunity to cure, so should a court be wary of dismissing a case
based on undisclosed “judicial experience” or “common sense,”
without giving the pleader an opportunity to rebut whatever inferences
may be drawn from those intuitions.
IV.

SUPERVISORY LIABILITY

As Iqbal made clear, although there is no respondeat superior liability
under § 1983 or Bivens, in certain circumstances supervisors themselves
can be held liable for constitutional wrongs. In this section, I will first
summarize the pre-Iqbal case law and then discuss how, if at all, Iqbal
has changed the landscape.
A. Pre-Iqbal Case Law

In the Second Circuit, prior to Iqbal supervisors could be
“personally involved” in the constitutional torts of their supervisees
if: (1) the supervisory official, after learning of the violation, failed to
remedy the wrong; (2) the supervisory official created a policy or
custom under which unconstitutional practices occurred or allowed
such policy or custom to continue; or (3) the supervisory official was
grossly negligent in managing subordinates who caused the unlawful
condition or event; or (4) if the supervisor directly participated in the
85. See Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 7 (1st Cir. 2007); Perez v.
Ortiz, 849 F.2d 793 (2d Cir. 1988); Roman v. Jeffes, 904 F.2d 192, 196 & n. 8 (3d
Cir.1990); Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (applying rule in
habeas context); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998);
Wagenknecht v. United States, 533 F.3d 412, 417 (6th Cir. 2008); Southern
Illinois Riverboat Casino Cruises, Inc. v. Triangle Insulation and Sheet Metal Co.,
302 F.3d 667, 678 (7th Cir. 2002); Williams v. Department of Corrections, 208
F.3d 681 (8th Cir. 2000); Franklin v. Murphy, 745 F.2d 1221, 1226 (9th
Cir.1984); Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999);
Clark v. Maldonado, 288 Fed.Appx. 645, 647, 2008 WL 2957122, *2 (11th Cir.
2008) (limited to pro se complaints); Razzoli v. Federal Bureau of Prisons, 230
F.3d 371, 377 (D.C. Cir. 2000). These cases often arise in the context of pro se
complaints, but not every circuit has so limited the rule.

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wrong.86 Other circuits expressed the standard slightly differently,
requiring an “affirmative link” between the actions or omission of the
supervisor and the unconstitutional conduct, such that “the
supervisor’s conduct led inexorably to the constitutional violation.”87
The Third Circuit, for example, offered a different variation, to
similar effect: “The plaintiff must (1) identify the specific
supervisory practice or procedure that the supervisor failed to
employ, and show that (2) the existing custom and practice without
the identified, absent custom or procedure created an unreasonable
risk of the ultimate injury, (3) the supervisor was aware that this
unreasonable risk existed, (4) the supervisor was indifferent to the
risk; and (5) the underling’s violation resulted from the supervisor’s
failure to employ that supervisory practice or procedure.”88
The general standard for supervisory omission cases –failure to
train or supervise at all – is deliberate indifference.89 Meeting this
standard can be particularly difficult in the supervisory liability
context.90 The following are some of the pre-Iqbal standards
articulated from some select circuits:
i.

Second Circuit: Supervisory liability may be imposed where an
official demonstrates “gross negligence” or “deliberate indifference” to the constitutional rights of inmates by failing to act on
information indicating that unconstitutional practices are taking
place.91 Courts in the Second Circuit impose supervisory liability

86. Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999); Spencer v. Doe, 139 F.3d 107,
112 (2d Cir. 1998), citing Williams v. Smith, 319 F.2d 319, 323-24 (2d Cir.
1986).
87. Maldonado v. Fontanes, 568 F.3d 263, 274-275 (1st Cir. 2009) (internal quotation
marks omitted).
88. Brown v. Muhlenberg Tp., 269 F.3d 205 (3d Cir. 2001). The Tenth Circuit agrees
with the Third that there must be personal direction or “actual knowledge and
acquiescence.” Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir.
1992) (citing Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir.1990)).
89. E.g., City of Canton v. Harris, 489 U.S. 378, 385 (1989).
90. Estate of Davis ex rel. McCully v. City of North Richland Hills, 406 F.3d 375,
380 -386 (5th Cir. 2005) (“To satisfy the deliberate indifference prong, a plaintiff
usually must demonstrate a pattern of violations and that the inadequacy of the
training is obvious and obviously likely to result in a constitutional violation.”
(internal quotation marks omitted))
91. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord, Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995).

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when an official has actual or constructive notice of unconstitutional practices.92
ii.

Sixth Circuit: “There must be a showing that the supervisor
encouraged the specific incident of misconduct or in some other
way directly participated in it. At a minimum, a § 1983 plaintiff
must show that a supervisory official at least implicitly
authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.”93

iii. Eighth Circuit: Supervisors are liable for directly participating in
a constitutional violation, for deliberate indifference in training
and supervising the subordinate who causes the violation, or for
“tacit authorization of the offensive acts.”94
iv. Ninth Circuit: A supervisor may be liable under § 1983 only if
there exists either “(1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional
violation.”95 The causal connection can be established by “setting
in motion a series of acts by others which the actor knows or
reasonably should know would cause others to inflict the
constitutional injury.”96 Supervisory liability is appropriate “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 the constitutional violation.”97
v.

Eleventh Circuit: Describing the standard as “extremely rigorous,”
the Eleventh Circuit permits supervisory liability “either when
the supervisor personally participates in the alleged constitutional
violation or when there is a causal connection between

92. See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989).
93. Turner v. City of Taylor, 412 F.3d 629, 642 -644 (6th Cir. 2005) (“Although
Plaintiff alleges that an officer with “sergeant stripes” on his shirt witnessed, and
allegedly condoned, one of the beatings, Plaintiff has not submitted any competent
evidence that identifies this individual as one of the supervisory Defendants.”).
94. Brockinton v. City of Sherwood, Ark., 503 F.3d 667, 673 (8th Cir.2007) (holding
that supervisor’s duty to train was met by relying on a law enforcement training
academy and remedial training courses – no need to have a specific departmental
policy or training procedure).
95. Jeffers v. Gomez, 267 F.3d 895 (9th Cir. 2001) (internal quotation marks omitted).
96. Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978).
97. Redman v. County of San Diego, 942 F.2d 1435, 1447-1448 (9th Cir. 1991).

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actions of the supervising official and the alleged constitutional
deprivation.”98 In practice, this means that a plaintiff must show
(1) that there is a history of constitutional violations which put the
supervisor on notice of the need to make corrections, which
corrections the supervisor failed to enact, (2) that the supervisor
directed subordinates to act unlawfully, (3) that the supervisor
knew that subordinates would act unlawfully and failed to stop
them; or (4) that a supervisor created a custom or policy that
exhibited and resulted in deliberate indifference to constitutional
rights.99
vi. DC Circuit: Absent direct participation or encouragement of
unlawful conduct, a supervisor can only be liable if he knows of
misconduct and “facilitate[s] it, approve[s] it, condone[s] it, or
turn[s] a blind eye for fear of what they might see.”100
Examples of imposition of supervisory liability, pre-Iqbal: Failure
to act on a “report or appeal” may support liability.101 Failing to act
on other, non-official sources of information may also support
liability.102 Even a prisoner’s letters to prison officials could be

98. Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990); see also Gonzalez v.
Reno, 325 F.3d 1228 (11th Cir. 2003).
99. Danley v. Allen, 540 F.3d 1298, 1314 -1315 (11th Cir. 2008) (finding allegations
sufficient where plaintiff alleged that there were prior use of force reports,
complaints from prisoners and others, and personal observations by supervisors
to put them on notice that pepper spray was used excessively as punishment).
100. International Action Center v. United States, 365 F.3d 20, 27-28 (D.C. Cir.
2004) (citing Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)).
101. Wright v. Smith, 21 F.3d 496, 502 (2d Cir. 1994), quoting Williams v. Smith,
781 F.2d 319, 323-24 (2d Cir. 1986); Amaker v. Hakes, 919 F.Supp. 127, 132
(W.D.N.Y. 1996) (holding that information coming to the Commissioner
through the prison grievance process may support liability); Roucchio v.
Coughlin, 923 F.Supp. 360, 379 (S.D.N.Y. 1996) (holding that service of Article
78 petiton on Commissioner can support liability); Gabai v. Jacoby, 800 F.Supp.
1149, 1156 (S.D.N.Y. 1992) (holding that a supervisor who reviewed a deficient
disciplinary proceeding can be held liable); Langley v. Coughlin, 709 F.Supp.
482, 486 (S.D.N.Y.) (holding Commissioner could be held liable based on the
complaint in the case and a Correctional Association report), appeal dismissed,
888 F.2d 252 (2d Cir. 1989).
102. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright v. Smith, 21 F.3d
496, 501 (2d Cir. 1994) (both citing “failing to act on information indicating that
unconstitutional practices are taking place” as a basis for liability separate from
non-response to a “report or appeal”); Hall v. Artuz, 954 F.Supp. 90, 95
(S.D.N.Y. 1997) (holding letter from Legal Aid Society could put prison
superintendent and regional health services administrator on sufficient notice)

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sufficient to give notice of constitutional violations for purposes of
determining liability of supervisors.103 Failure to maintain an
adequate medical care system—e.g. by ensuring adequate staffing—
may trigger supervisory liability.104 Failure to respond to
subordinates’ misconduct may also support a supervisor’s liability.105
Failure to promulgate policies to guide subordinates’ conduct may
also support liability.106 In addition, the failure to inform and train
staff concerning policies may support liability.107
With all of these barriers to imposing supervisory liability, it is
worth asking why one would pursue such claims. They can multiply
legal and factual theories; complicate discovery, proof, and motion
practice; and delay the resolution of seemingly simple disputes. On
the other hand, they will usually ensure a solvent defendant, in the
event one is concerned about line officers not being indemnified.
Moreover, they may also increase access to relevant discovery and
may increase the scope of relevant trial evidence. Some juries also
may be more willing to find high level defendants liable, especially
where there is evidence that unlawful conduct was the result of
systematic policy decisions. In addition, having supervisors as
defendants reduces the potential that a “following orders” defense
will have legs. In short, it is a case-by-case determination, but in most
cases it will be more beneficial than costly to have supervisory
defendants in the case.

103. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Pacheco v.
Commisse, 897 F.Supp. 671, 678 (N.D.N.Y. 1995); Mandala v. Coughlin, 920
F.Supp. 342, 351 (E.D.N.Y. 1996).
104. Greason v. Kemp, 891 F.2d 829, 839-40 (11th Cir. 1990).
105. Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1995); Ricciuti v. New York
City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991).
106. Horne v. Coughlin, 795 F.Supp. 72, 74-75 (N.D.N.Y. 1991) (holding that
Commissioner could be held liable for lack of a policy requiring appointment of
counsel substitute for a mentally retarded prisoner facing disciplinary charges);
Bryant v. McGinnis, 463 F.Supp. 373, 387 (W.D.N.Y. 1978) (holding
Commissioner could be held liable for failure to promulgate regulations
protecting Muslims’ religious rights).
107. Gilbert v. Selsky, 867 F.Supp. 159, 166 (S.D.N.Y. 1994) (holding that Director
of Special Housing and Inmate Discipline could be held liable based on lack of
formal training manual and requirement of training sessions for hearing
officers); Allman v. Coughlin, 577 F.Supp. 1440, 1448 (S.D.N.Y. 1984)
(holding systematic failures in training of emergency team could support
liability of Commissioner).

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B. Relevance of Iqbal to Supervisory Liability Standard

The Supreme Court’s decision in Iqbal has the potential to
substantially rework the contours of supervisory liability. Again, as in
Iqbal’s effect on pleading standards, it is unclear how broad its effect
will be in the supervisory liability context. The relevant language
from Iqbal is as follows:
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 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.108

The principal dissent in Iqbal interpreted this language to do
away entirely with supervisory liability, but the majority did not
address this characterization. At the very least, the majority accepted
that supervisors can be held liable for violations of their
“superintendent responsibilities.” At the same time, however, the
Court appeared to reject the standard, accepted in most circuits, that a
supervisor’s knowledge of and acquiescence in unconstitutional
conduct is sufficient to establish Bivens or Section 1983 liability.109
The Court’s holding is less than clear, however, and many lower
courts have interpreted the decision to only reject the knowledge and
acquiescence standard for intent-based constitutional claims, not for
claims like the Fourth Amendment and Eighth Amendment deliberate
indifference standards in which no intentional state of mind is
required.110 Many courts, particularly in the Third Circuit, have
108. 129 S. Ct. at 1949.
109. Id.
110. See Argueta v. U.S. Immigration and Customs Enforcement, 2010 WL 398839,
*6 (D.N.J. 2010) (finding Iqbal’s supervisory liability holding inapplicable to
Fourth Amendmernt claim because the defendant’s state of mind is irrelevant);
Banks v. Montgomery, No. 3:09-cv-23-TS, 2009 WL 1657465 (N.D. Ind., June
11, 2009) (Eighth Amendment); Chao v. Ballista, 630 F.Supp.2d 170, 177-79 &
n.2 (D. Mass. 2009) (“Notably, the state of mind required to make out a
supervisory claim under the Eighth Amendment—i.e., deliberate indifference—
requires less than the discriminatory purpose or intent that Iqbal was required to
allege in his suit against Ashcroft and Mueller.”); Jackson v. Goord, 2009 WL
3047226, *16 n.7 (SDNY Sep 21, 2009) (citing to pre-Iqbal supervisory liability
standard and stating that Iqbal’s effect on supervisory liability concerns claims
of intentional discrimination, not claims of deliberate indifference); Williams v.

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seemingly ignored Iqbal when adjudicating supervisory liability
claims.111 District courts within the Second Circuit, by contrast, are in
a state of confusion.112 This issue has yet to be addressed in depth by
any circuit court, so it will behoove any litigant in the prison context
to rely as heavily as possible on those cases that carve out a
distinction between Iqbal’s equal protection context and the
(sometimes) reduced emphasis on intent in Eighth Amendment
claims.
V.

MUNICIPAL LIABILITY UNDER SECTION 1983

Municipalities can be sued under Section 1983.113 They will be liable for
the unconstitutional acts of their officers if “the action that is alleged to
be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by

Fort Wayne Police Dept, No. 1:08-cv-152 RM, 2009 WL 1616749 (June 9, 2009
N.D. Ind.) (Fourth and Fourteenth Amendment unlawful arrest and excessive
force claims); Preyer v. McNesby, No. 3:08cv247, 2009 WL 1605537 (N.D. Fla.
Jun 05, 2009) (Fourteenth Amendment excessive force claim); Young v.
Speziale, 2009 WL 3806296 (DNJ 2009) (in deliberate indifference case,
distinguishing Iqbal); Williams v. Hull, No. 08-135Erie, 2009 WL 1586832
(W.D. Pa. Jun 04, 2009) (Eighth Amendment); Swagler v. Harford County, No.
RDB-08-2289, 2009 WL 1575326 (D. Md. June 02, 2009) (Fourth Amendment
unreasonable search and seizure).
111. Ayres v. Ellis, 2009 WL 3681892 (DNJ 2009) (In Eighth Amendment case,
continuing to apply actual knowledge and acquiescence standard for supervisory
liability); Damore v. Untig, 2009 WL 4666876 (DNJ 2009 2009) (dismissing
supervisory liability claims but applying a knowledge and acquiescence
standard); Gioffre v. County of Bucks, 2009 WL 3617742 (EDPA 2009)
(applying Third Circuit’s traditional test for supervisory liability, without even
referring to Iqbal)
112. Cagle v. Gravlin, 2010 WL 2088267, *7 (N.D.N.Y. Apr 29, 2010) (recognizing
that Iqbal casts doubt on Second Circuit’s standard, but assuming that it still
applies); Tafari v. McCarthy, 2010 WL 2044710, *9 (N.D.N.Y. Mar 31, 2010)
(same); Robinson v. Federal Bureau of Prisons, 2010 WL 1752587, *5
(E.D.N.Y. Mar 24, 2010) (applying Second Circuit’s standard without referring
to Iqbal); Hardy v. Diaz, 2010 WL 1633379, *7 (N.D.N.Y. Mar 30, 2010)
(applying Second Circuit’s pre-Iqbal law); Rahman v. Fischer, 2010 WL
1063835, *4-5 (S.D.N.Y. Mar 22, 2010) (collecting cases) Morris v. Rabsatt,
2010 WL 1444880, *2 (N.D.N.Y. Feb 02, 2010) (dismissing, but applying preIqbal standard); Spear v. Hugles, 2009 WL 2176725, *2 (S.D.N.Y. July 20,
2009) (assuming that only two of the five Second Circuit supervisory liability
standards survive Iqbal).
113. Monell v. Department of Soc. Servs., 436 U.S. 658, 700-01 (1978).

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that body’s officers.”114 Just as in supervisory liability, there is no
respondeat superior liability for municipalities under Section 1983.
Municipalities are only liable for the unconstitutional conduct that is the
result of municipal custom or policies.
To form the basis for liability, a municipal policy need not be
formalized or in writing. Even if the municipal policy has never been
formally adopted by lawmakers, if it is an established custom it can for
the basis for liability.115 Such an informal policy normally must be so
“persistent or widespread” as to constitute “a custom or usage with the
force of law” or “so manifest as to imply the constructive acquiescence
of senior policy-making officials.”116 Municipalities also may be liable
for inadequate training or supervision, generally along the same lines that
supervisors are liable – demonstrated deliberate indifference to the need
for training or supervision.117 Deliberate indifference will be found where
the nature of the employees’ duties or a previous pattern of violations
makes it obvious that, without further training, the employees are highly
likely to violate citizens’ federally protected rights.118 Id. The failure to
train or supervise must have actually caused an underlying constitutional
violation.
In limited circumstances a municipality will be held liable for its
employees’ constitutional wrongs on the basis that the city failed to
adequately screen the employees before hiring them. For a municipality
to be liable under this theory, a plaintiff must show that “adequate
scrutiny of an applicant’s background would [have led] a reasonable
policymaker to conclude that the plainly obvious consequence of the
decision to hire . . . would be the deprivation of a third party’s federally
protected right,” and that adequate screening would have shown that
“this officer was highly likely to inflict the particular injury suffered by
the plaintiff.”119 Id. at 412.
Unlike in the context of supervisory liability, it is not obvious that
Iqbal should have any effect on Monell-type claims. Most courts to
consider the question have so held. The Northern District of Illinois has

114. Id. at 690.
115. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004); Jeffes v.
Barnes, 208 F.3d 49, 61 2d Cir. 2000); Sorlucco v. New York City Police
Department, 971 F.2d 864, 870 (2d Cir.1992).
116. Sorlucco v. New York City Police Department, 971 F.2d 864, 870-71 (2d
Cir.1992).
117. City of Canton v. Harris, 489 U.S. 378, 388 (1989).
118. Id.
119. Bd. of County Comm’rs v. Brown, 520 U.S. 397, 411-12 (1997).

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applied the pre-Iqbal standard for both pleading and liability in Monell
claims.120 The District of Nevada, by contrast, has held that Iqbal
supersedes Leatherman.121 No Court of Appeals has yet to address the
question. The following cases are examples of Monell complaints that
have survived dismissal post-Iqbal:
a.

Coric v. County of Fresno, No. 1:08cv1225 JTM (BLM), 2010 WL
364322, at *3, *4 (E.D. Cal. Jan. 25, 2010) (Allegation that, despite
sheriff’s warning of overcrowding, “the County continued to
inadequately fund the jail, even after Plaintiff was beaten in the
absence of sufficient supervision,” was sufficient to state Monell
claim.)

b.

Allen v. Montgomery County, 2009 WL 4042761 (EDPA 2009)
(finding that the plaintiff sufficiently alleged municipal liability by
alleging that 100-150 medical request forms were not included in
his records, creating an inference that there was a policy of ignoring
medical requests).

c.

Bullock v. Beard, 2010 WL 1507228 (MDPA 2010) (in case arising
out of prison suicide, complaint adequately alleged policy and
custom such that claim could proceed against corporation providing
prison health care services.

d.

Reynolds v. Dallas County, 2009 WL 2591192 (N.D.Tex.,2009)
(finding claim sufficient where “Plaintiff has alleged that there was
a policy of not staffing the appropriate numbers of trained
personnel at the jail, and also stated that he did not see a nurse or a
doctor during his incarceration in spite of repeated requests for
medical attention. In addition, Plaintiff has alleged that he had a
serious medical condition that required surgery, but that delay in
receiving appropriate medical care exacerbated his medical
condition.”)

e.

Mracna v. Correctional Medical Services, 2009 WL 3060423
(W.D. Mich. Sept. 22, 2009) (In denying the motion to dismiss with
respect to one claim, the court noted that in alleging a pattern of
120. Riley v. County of Cook, 682 F.Supp.2d 856, 861, 862 (N.D. Ill. 2010)
(applying Leatherman and stating that “an official capacity claim can survive
even with conclusory allegations that a policy or practice existed, so long as
facts are pled that put the defendants on proper notice of the alleged
wrongdoing.”).
121. Ward v. Nevada, No. 3:09-CV-00007-RCJ-VPC, 2010 WL 1633461, at *5 (D.
Nev. Feb. 26, 2010)

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denials of treatment in the complaint, the plaintiff “set forth
sufficient facts from which [the court] could reasonably infer that
policy, practice or custom of [the defendant] caused Plaintiff’s
injuries.”)
f.

Fox v. Ghosh, 2010 WL 345899 (N.D.Ill. 2010) (Monell claim
survives where plaintiff alleged the existence of a policy under
which inmates with serious medical conditions were routinely
denied access to medication and medical care)

g.

Smith v. Sangamon County Sherriff’s Dep’t, 2009 WL 2601253
(C.D. Ill. Aug. 20, 2009) (Failure to train claim could proceed
based on allegations that officials repeatedly denied proper medical
care and bedding and that several incidents should have prompted
sheriff’s department to provide better training).

h.

Barrett v. Maricopa County Sheriff’s Office, 2010 WL 46786 (D.
Ariz. 2010) (finding that explicit policy need not be alleged if it can
be inferred)

In closing, Iqbal will certainly play a role in resolving pleading
issues in prisoners’ rights cases. It will likely play less of a role in
supervisory liability claims, depending on the circuit. And it seems
unlikely, for now, that Monell claims will be significantly affected by
Iqbal.

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208

APPENDIX A – SELECTED POST-IQBAL PLEADING CASES (BY
CIRCUIT OF ORIGIN)

a.

First Circuit Cases

Sanchez v. Pereira-Castillo, 590 F.3d 31, 41-44 (CA1 2009) (finding
prisoner’s Fourth Amendment claim sufficient against some defendants
but not others, in large part because certain defendants were directly
involved in unreasonable search and allegations against supervisory
defendants were conclusory).
Chao v. Ballista, 630 F.Supp.2d 170, 177-79 & n.2 (D. Mass. 2009):
“Allegations become ‘conclusory’ where they recite only the elements of
the claim and, at the same time, the court’s commonsense credits a far
more likely inference from the available facts.”
Picard v. Hillsborough County Dep’t of Corrections Medical Dep’t, 2009
WL 4063191 (D.N.H. Nov. 20, 2009)
Denying motion to dismiss plaintiff’s §1983 claims for inadequate
medical care. Plaintiff alleged that he complained several times to three
named nurses (identified by their first names) about his significant
weight loss, but that they did nothing in response and gave him a hard
time about his complaints.
Whitten v. Blaisdell, 2010 WL 376903, *5 (D.N.H. 2010) (deliberate
indifference allegations sufficient against supervisors where plaintiff
alleged that he filed grievance related to medical care and supervisory
officials did nothing).
b.

Second Circuit Cases

Arar v. Ashcroft, — F.3d —, 2009 WL 3522887 (CA2 2009)
Cites Iqbal and Twombly in holding that plaintiff did not plead
sufficiently specific involvement of individual supervisory defendants in
alleged unconstitutional conditions of confinement and denial of access
to courts and consular assistance, prior to plaintiff’s rendition to Syria.
Emphasizes that the plaintiff’s allegations referred to “defendants”
generally, that they used the passive voice, and that the plaintiff did not
allege the “meeting of the minds” that a “plausible” conspiracy claim
requires.
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Cole v. Fischer, 2010 WL 2130974, *1-2 (CA2 2010) (finding
allegations of excessive force sufficient where officers used racially and
religiously derogatory language towards plaintiff)
Alexander v. Galeno, 2009 WL 3754254 (SDNY Nov. 5, 2009)
Cites Iqbal and then holds following allegations sufficient to plead
deliberate indifference: plaintiff alleges that defendants refused to come
to his prison to administer injections as treatment, in effort to force him
to have surgery instead; that a doctor stated that plaintiff’s only choices
were surgery or no treatment at all; and that defendants denied him
treatment so that they could use him for a physician’s experimental
practice.
Allah v. Kemp, 2010 WL 1036802 (N.D.N.Y. Feb 25, 2010)
Prisoner claim for lack of mental health care can go forward. Plaintiff
alleged that defendants failed to provide him with mental health care,
notwithstanding notations in the record that he had attempted suicide
three days earlier, and that his mental health needs remained unmet as he
attempted suicide two more times. “Whatever conclusions might be
warranted after the record is developed, accepting the material facts
alleged in the Complaint as true, and drawing all inferences in Plaintiff’s
favor, the Complaint states a plausible claim that Plaintiff’s mental
health needs were unmet and were, objectively, sufficiently serious.”
Braxton v. Nichols, 2010 WL 1010001 (S.D.N.Y. Mar 18, 2010)
Prisoner claim based on tobacco smoke exposure can go forward;
plaintiff alleged that he was exposed to unreasonable levels of smoke and
has suffered ill health results. “While these documents do not establish
that Plaintiff has suffered a serious injury or faces a risk of future harm,
they suggest with sufficient plausibility that Plaintiff may be able to
demonstrate through discovery that a serious present injury or a future
risk of serious injury exists.” Plaintiff offered three letters to
superintendent and grievance, demonstrating that he complained; these
are sufficient to show that supervisory officials were on notice and may
have been involved.
Diaz v. Fischer, 2010 WL 1133074 (N.D.N.Y. Mar 23, 2010)
Prisoner retaliation case. Some claims found too conclusory, but claim is
sufficiently pled as to another defendant. “Plaintiff alleges that
Defendant Quinn issued a falsified misbehavior violation once he
discovered Plaintiff was the ILC Secretary. Compl. ¶ 42. According to
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Plaintiff’s Complaint, Quinn’s issued Plaintiff a false misbehavior report
because of the content of Plaintiff’s earlier filed grievances against
Sergeant Cox FN2 and because of Plaintiff’s membership in the ILC.”
Plaintiff provides several facts in support of his claim, including that
“Plaintiff’s contact with Defendant Quinn sprang from the latter’s
investigation of grievances pertaining to the IGRC’s handling of
grievances filed by Plaintiff; during their interview Quinn allegedly
berated Plaintiff specifically about the latter’s filing grievances; Quinn
issued Plaintiff a misbehavior report following a pat-down leading to the
discovery of an ILC card in Plaintiff’s wallet; upon finding this card
Quinn allegedly said, ‘Now I’m definitely having you moved out of
E-Block;’ and the penalty of being sent to the Special Housing Unit
(‘SHU’) that Plaintiff received as a result of the violation issued by
Quinn was allegedly extraordinarily harsh but also required in order to
remove Plaintiff from his ILC position.”
Freeman v. Santos, 2010 WL 982893 (N.D.N.Y. Mar 15, 2010)
Pro se § 1983 prisoner claim, probably a beat-up, can go forward against
supervisor. Plaintiff “contends that Santos personally orchestrated the
assault by conversing with John Doe defendants and ordering them to
teach [Plaintiff] a lesson.” Additional facts supported this allegation.
“The fact that Plaintiff did not actually hear what Defendant Santos was
saying to the John Doe Defendants does not make his claim implausible.
As Magistrate Judge Homer correctly noted, when Plaintiff’s allegation
that he saw Defendant Santos talking to the John Doe Defendants is
coupled with his other allegations that Defendants John Doe # 1 and John
Doe # 2 referred to him as the “tough guy” after speaking with
Defendant Santos and that Defendant John Doe # 4 indicated that the
assault occurred because Defendant Santos ordered the John Doe
Defendants to teach Plaintiff a lesson, there is sufficient factual
allegations in the complaint to state a plausible claim that Defendant
Santos was personally involved in the alleged violation of Plaintiff’s
constitutional rights.”
Harvey v. LaValley, 2009 WL 5219027 (N.D.N.Y. Dec 31, 2009)
Prisoner’s § 1983 claim, apparently for excessive force and deliberate
indifference to serious medical needs. Iqbal boilerplate is followed by
recitation of the Colon v. Coughlin supervisory liability standard, with no
suggestion that the latter has been undermined: “The failure to allege
facts plausibly suggesting that a defendant was personally involved will
generally subject a complaint to dismissal. However, this case falls
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within an exception to the general rule. When a prisoner does not know
the identities of any of the individuals who allegedly violated his
constitutional rights, it is appropriate to maintain ‘supervisory personnel
as defendants ... until the plaintiff has been afforded an opportunity
through at least brief discovery to identify the subordinate officials who
have personal liability.’”
Sash v. U.S., 2009 WL 4824669 (SDNY Dec 15, 2009)
Although plaintiff loses, court suggests that 2d Circuit’s supervisory
liability standard in Colon v. Coughlin may survive Iqbal, at least outside
the intentional discrimination context: “While Colon permitted
supervisory liability in situations where the supervisor knew of and
acquiesced in a constitutional violation committed by a subordinate,
these post-Iqbal district court decisions reason that Iqbal’s ‘active
conduct’ standard imposes liability only where that supervisor directly
participated in the alleged violation or had a hand in creating a policy or
custom under which the unconstitutional practices occurred. These
decisions may overstate Iqbal’s impact on supervisory liability. Iqbal
involved alleged intentional discrimination. . . . Where the constitutional
claim does not require a showing of discriminatory intent, but instead
relies on the unreasonable conduct or deliberate indifference standards of
the Fourth and Eighth Amendments, the personal involvement analysis
set forth in Colon v. Coughlin may still apply.” (Citing Chao v. Ballista).
Scaccia v. County of Onondaga, New York, 2009 WL 4985683 (NDNY
Dec 15, 2009)
Court harmonizes Iqbal and Erickson v. Pardus by saying that Erickson
says “detailed facts” aren’t needed, but some facts are. (*3). Court
declines to dismiss plaintiff’s claim supported by concrete descriptions
of his serious medical problem and of the obstruction by one defendant
of treatment for his problem. It does dismiss plaintiff’s Monell claim
because plaintiff does not cite facts showing that other persons besides
himself were subject to the practices that he alleges are county policies.
(*7-8). At *11: the fact that an individual supervised persons who were
directly involved in the alleged violation is not sufficient to hold them
liable.
Watson v. Wright, 2010 WL 55932 (N.D.N.Y. Jan 05, 2010)
Prison medical care case. Plaintiff pled that defendant doctor had a nonmedical, discriminatory reason for interfering with his medical treatment

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(i.e., they had had an argument, and the doctor stopped his interferon),
and that is sufficient to state a claim.
c.

Third Circuit Cases

Merritt v. Fogel, 2009 WL 3383257, *3-4 (C.A.3 (Pa.) Oct. 22, 2009)
“The Magistrate Judge thought Merritt’s claim deficient as a matter of
law because his own allegations show that defendants have repeatedly
monitored and tested him and have determined that he does not qualify
for [Hepatitis C] treatment. In reaching that conclusion, the Magistrate
Judge relied primarily on responses by certain defendants and others to
Merritt’s grievances that he attached to his initial complaint. As the
Magistrate Judge noted, those responses indicate that Merritt has been
tested and that certain defendants and others have concluded that he is
not a candidate for combined drug treatment for various reasons. . . . If
that were all that Merritt alleged, then the Magistrate Judge would be
right. Merritt, however, makes many other specific factual allegations
that the Magistrate Judge did not discuss and that, taken as true as they
must be at this stage, raise an inference of deliberate indifference. For
example, Merritt alleges that one of defendants’ own specialists
recommended him for treatment as long ago as 1996 but that defendants
fraudulently concealed that information from him until he finally filed
suit. He also alleges that he is within the protocol for treatment, though
various defendants have falsely told him otherwise. Thus, as Merritt
argues, he claims to seek, not merely the treatment of his own choice, but
treatment that has been recommended by a specialist and that is called
for by the Department of Corrections protocol. Moreover, his allegations
permit the inference that defendants may have nonmedical reasons for
refusing to provide this treatment. For example, he alleges that defendant
Falor told him both that medical staff merely ‘shrug their shoulders,
indicating nothing’ when the subject of HCV treatment arises at staff
meetings and that Merritt would not receive treatment though his liver
numbers were ‘all out of wack’ and that he should instead ‘pray.’ He also
alleges that he overheard a physician’s assistant admit to having
shredded his sick call requests. Finally, he alleges that has been denied
treatment for at least five different reasons over the years, most of which
he alleges were fabricated.”

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Cummings v. Butler, 2009 WL 3763993 (WDPA 2009)
In this Section 1983 (First Amendment prisoners’) claim, the court found
it sufficient for plaintiff to allege that as a result of not having access to
legal papers, another action was time-barred. (p. *2).
Damore v. Untig, 2009 WL 4666876 (DNJ 2009 2009)
At the screening stage of this Section 1983 (prisoners’ rights) case, court
finds that Eighth Amendment and due process claims sufficiently stated
by allegation that COs beat and kicked prisoner while he was restrained,
requiring x-rays and medical treatment. (pp. *5-6). The court dismissed
the plaintiff’s supervisory liability claims because it was clearly a
respondeat superior theory, but court also seems to apply a knowledge
and acquiescence standard. (p. *7).
Gioffre v. County of Bucks, 2009 WL 3617742 (EDPA 2009)
In §1983 (Eighth Amendment) case, finding following allegations
sufficient: plaintiff needed medical examination upon admission; exam
was not provided because of policies and practices of prison; defendants
had tolerated practice of denying care to preserve resources; and
defendants were on notice. Seems to apply the Third Circuit’s traditional
test for supervisory liability, without even referring to Iqbal.
Rivera v. Wahba, 2009 WL 4609831 (DNJ 2009)
Plaintiff’s Section 1983 (due process) claim for failure to provide
medical care plausible where complaint alleged that doctor failed to treat
him and nurses failed to give medical attention for complaints of hernia
pain for 12 hours; allegations suggest refusal was not based on med
justification. (p. *6).
Young v. Speziale, 2009 WL 3806296 (DNJ 2009)
In a Section 1983 (prisoners’ rights) case, the court distinguishes Iqbal as
involving an intent-based claim and holding that “general allegations
may be sufficient in deliberate indifference context. (p. *7). The court
also distinguishes Iqbal’s approach to supervisory liability claims by
resting on the intent-based nature of Iqbal’s claims, as opposed to
deliberate indifference theory of relief. (p. *7)
Zheng v. Palakovich, 2010 WL 1508521 (MDPA 2010)
§1983 claims under 8th and 14th Amendments and corporate negligence
claim, arising from prison suicide, could proceed against corporation
running prison health services and the individual doctors who treated
prisoner. Plaintiff adequately alleged for all defendants that detainee was
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particularly vulnerable to suicide, that defendants knew of and
disregarded that vulnerability, and that they acted with reckles
indifference to it. For corporation, plaintiff alleged that detainees could
only see psychiatrist once a month, as a cost-saving measure, that
resulted in detainee being taken off his medication and deteriorating.
However, claim against supervisory psychiatrist who did not play direct
role in treating detainee was dismissed.
d.

Fifth Circuit Cases

Hamer v. Jones, 2010 WL 444350 (5th Cir. 2010)
Some § 1983 claims were dismissed, but claim of cross-sex strip search
in violation of Fourth Amendment right to bodily privacy could proceed.
Complaint contained inconsistent allegations, but court “must resolve
this lack of clarity in the record in favor of Hamer.” If female guard was
actually involved in search and if it occurred under non-exigent
conditions, as plaintiff alleged, claim may rise to level of constitutional
violation.
Morgan v. Hubert, No. 08-30388, 2009 WL 1884605, at *5, *6 (5th Cir.
July 1, 2009) (unpublished) (finding that, even after Iqbal, plaintiffs are
not required to plead specific facts “peculiarly within the knowledge of
defendants”; approving of limited discovery in failure to protect case to
determine when defendant knew of risk of harm to plaintiff)
Arita v. Stagg, 2010 WL 370343, *5 (M.D. La. 2010)
“In the instant case, the plaintiff has alleged that, notwithstanding a
severe beating of extended duration by multiple security officers,
including the use of riot batons and the electronic capture shield, and
notwithstanding that the plaintiff appeared in the prison infirmary
immediately thereafter for medical attention, the defendant turned away
and would not address the plaintiff’s injuries. This allegation adequately
presents the claim that defendant Roundtree was aware of and
disregarded a potentially serious medical condition faced by the plaintiff,
and so, this allegation overcomes the defendant’s bare-bones assertion of
qualified immunity, especially on a motion to dismiss which is decided
without the benefit of competent evidence.”
Even though complaint provided “little factual detail” it was adequate to
state claim of deliberate medical indifference.

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e.

Sixth Circuit Cases

Flanory v. Bonn, 604 F.3d 249, 256 (CA6 2010) (allegation of filing
grievance sufficient to establish knowledge and indifference of prison
officials).
Nali v. Ekman, 2009 WL 4641737 (CA6 2009)
In this Section 1983 (prisoners’ rights) claim, the court found that the
plaintiff’s first amendment claim was plausible because he alleged that
he was disciplined in retaliation for filing an internal grievance (p. *2).
However, the plaintiff’s equal protection claim was dismissed because
the only allegation was that the prisoner was non-white while the
Correction Officers who disciplined him were white (*3). The plaintiff’s
allegation that the defendants were racially biased and had animosity
toward plaintiff was conclusory (*3).
Wright v. Leis, 335 Fed.Appx. 552 (6th Cir. 2009)
Court affirms district court’s denial of a motion to dismiss a § 1983
excessive force claim. Plaintiff adequately pleaded violation by sheriff
based on failure to train, even though sheriff had no physical contact
with plaintiff.
Cage v. Caruso, 2009 WL 2252669 (W.D. Mich. July 28, 2009)
§ 1983 Eighth Amendment claim can go forward against providers of
prison health services and warden. Plaintiff alleged that defendants were
deliberately indifferent to his serious medical needs, providing
inadequate testing, treatment and pain medication; as the result of the
inadequate treatment and the resultant falls, he experienced excruciating
pain and has sustained multiple reinjuries to his head and neck; he also
experienced severe depression from the untreated health conditions and
has become suicidal on more than one occasion.
Carne v. Johnson, 2009 WL 2777174 (W.D. Mich. Aug. 28, 2009)
Court dismisses some claims in a prisoner’s § 1983 civil rights action but
finds plaintiff’s allegations that one defendant “refused to retrieve his
medication which resulted in his hospitalization are sufficient to state a
claim” against that defendant. The court also finds that plaintiff has made
sufficient factual allegations to state a claim against his medical services
provider and various individuals involved in plaintiff’s medical care.

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Catanzaro v. Michigan Department of Corrections, 2009 WL 4250027
(E.D. Mich. Nov. 19, 2009)
The court dismisses as implausible many of the claims brought by
prisoners in a § 1983 case. However, the court denies the motion to
dismiss an Eighth Amendment excessive force claim. While the court
notes that the plaintiff must ordinarily show more than de minimis injury,
but no injury need be shown if force is maliciously or sadistically
applied. In this instance, defendant admitted he deliberately attempted to
hit the plaintiff with a motorized vehicle. The court also upholds an
Eighth Amendment deliberate indifference claim in which the plaintiff
alleges he was labeled a snitch and forced to fight other inmates.
Ciavone v. McKee, 2009 WL 2959737 (W.D. Mich. Sept. 10, 2009)
Court grants motion to dismiss in part and denies it in part in a prisoner’s
§ 1983 civil rights complaint. The court allows the plaintiff’s Eighth
Amendment claim of failure to treat psychological problems to go
forward against three defendants because plaintiff alleged sufficient facts
to make the claim “plausible on its face.”
Edwards v. Welton, 2009 WL 2777166 (W.D. Mich. Aug. 28, 2009)
Court dismisses most claims in a prisoner’s § 1983 civil rights action but
allows Eighth Amendment claim to go forward, finding plaintiff’s
allegations that the defendant “jeopardized Plaintiff’s personal safety by
asking him to purchase a knife from another prisoner” sufficient to state
a claim.
Fletcher v. Michigan Dept. of Corrections, No. 09-CV-13904, 2010 WL
2376167, at *6 (E.D. Mich. June 9, 2010) (Finding Monell allegations
sufficient where plaintiff alleged that county had a policy “to
inadequately train or supervise its officers, deputies, nurses and
counselors, with respect to the constitutional rights of the inmates.”
Plaintiff also alleged “six more specific policies relating to the handling
of mentally ill inmates, including failure to comply with maintenance
orders, as well as inmate abuse and the improper handling of complaints
of abuse.”
Garvins v. Hofbauer, 2009 WL 1874074 (W.D. Mich. June 26, 2009)
In examining a prisoner’s § 1983 civil rights action in which plaintiff
claims that various defendants violated the Eighth Amendment through
deliberate indifference to plaintiff’s medical problems, the court
dismisses as conclusory those claims in which plaintiff made no specific
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factual allegations and only alleged that defendants were “aware” of his
medical condition. The court allows claims against other defendants to
go forward.
Harrison v. Pitman, 2009 WL 2033343 (W.D. Mich. July 8, 2009)
In a prisoner’s § 1983 civil rights action, the court finds that the plaintiff
has stated sufficient allegations to support a First Amendment retaliation
claim when plaintiff alleged that defendants retaliated against him after
he filed grievances.
Jones v. Smolinski, 2009 WL 3352804 (W.D. Mich. Oct. 13, 2009)
Court dismisses most claims in a prisoner’s § 1983 case, but the court
denies the motion to dismiss with respect to a First Amendment relation
claim based on allegation that defendant placed plaintiff on
unemployable status in retaliation for filing a grievance against her.
Filing of a prison grievance is constitutionally protected conduct for
which a prisoner cannot be subject to retaliation.
Lawson v. Haddon, 2009 WL 2242692 (W.D. Mich. July 16, 2009)
The court dismisses most claims in a § 1983 case brought by a prisoner
against various prison officials and employees. However, the court finds
that the plaintiff has alleged sufficient facts to state an Eight Amendment
medical claim against two defendants for deliberate indifference to the
plaintiff’s medical and mental health needs. The court does not discuss
what makes the medical allegations adequate, but it appears that plaintiff
listed specific medical problems and interactions with medical personnel
in his complaint.
Rothschild ex rel. Rothschild v. Ahmed, 2010 WL 749923 (S.D. Ohio
Feb 22, 2010)
§ 1983 claim brought on behalf of an individual who died while in
custody at the county jail. The court cites Iqbal in finding it to be
plausible that the decedent’s “Eighth Amendment rights were violated
due to deliberate indifference to his medical care, as the Complaint meets
both the objective (sufficiently serious medical need demonstrated by
Gregory Rothschild’s death) and subjective (Complaint alleges that Dr.
Ahmed knew of the Crone’s disease, knew that Gregory Rothschild was
deteriorating, and disregarded his condition) tests.”

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f.

Seventh Circuit Cases

Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009)(holding that
“[k]nowledge and intent, in particular, need not be covered in detail” and
that “[a] prisoner’s statement that he repeatedly alerted medical
personnel to a serious medical condition, that they did nothing in
response, and that permanent injury ensued, is enough to state a claim on
which relief may be granted—if it names the persons responsible for the
problem.”)
Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009)
In this Section 1983 case, the court (Posner, J.) found that “[t]he
complaint in this case, though otherwise detailed, is bereft of any
suggestion, beyond a bare conclusion, that the remaining defendants
were leagued in a conspiracy with the dismissed defendants.” 583 F.3d at
971. The court also, however, seems to limit Iqbal/Twombly by
suggesting that the cases were motivated by concerns about complexity
in Twombly and immunity in Iqbal: “[T]he height of the pleading
requirement is relative to circumstances. We have noted the
circumstances (complexity and immunity) that raised the bar in the two
Supreme Court cases. This case is not a complex litigation, and the two
remaining defendants do not claim any immunity.” Id. The court
nevertheless dismissed the case on the basis of pre-Iqbal heightened
pleading standards for conspiracy allegations (noting a concern about
“paranoid pro se litigation”).
Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816 (7th Cir. 2009)
(finding complaint sufficient, despite plaintiff’s lack of knowledge of
certain facts, where plaintiff cannot fairly be held to know the names of
each individual who was responsible for his injury, or of the facts
establishing that certain private individuals should be considered state
actors – “We do not think that the children’s game of pin the tail on the
donkey is a proper model for constitutional tort law. If a prisoner makes
allegations that if true indicate a significant likelihood that someone
employed by the prison system has inflicted cruel and unusual
punishment on him, and if the circumstances are such as to make it
infeasible for the prisoner to identify that someone before filing his
complaint, his suit should not be dismissed as frivolous.”

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Santiago v. Walls, — F.3d —, 2010 WL 1170654 (7th Cir. 2010)
§ 1983 claim that warden failed to protect inmate from assault by another
inmate could proceed. Plaintiff alleged that inmate was known to be
dangerous, that staff deliberately housed him with inmate in order to
provoke a confrontation, that he put the warden on notice of inmate’s
history, and that warden disregarded that risk. “To the extent that the
dissent is asserting that the complaint itself lacked sufficient specificity,
it is asking for a return to the days before the Supreme Court eliminated
that impermissible gloss on the Federal Rules in Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507 U.S. 163
(1993).”
Diaz v. Hart, 2010 WL 849654 (N.D.Ill. 2010)
Prisoner’s § 1983 claim for inadequate medical care could go forward
against prison medical personnel. Against physician for his division of
the jail, plaintiff alleged that physician did not refill prescription for pain
medication or schedule surgery while knowing that surgery was needed.
Claim was also sufficiently pled against supervisory medical officials,
who allegedly established policy of denying procedures needed to treat
serious medical conditions. Plaintiff also adequately alleged the
existence of a widespread custom to put defendants on notice: he had an
injury requiring surgery; was examined by doctors who said he needed
surgery; and no surgery was performed. Allegations included dates,
names of parties, accounts of doctors’ visits, and the locations of those
visits. Claim could not, however, go forward against sheriff or warden,
who were not personally involved in medical care or medical policies.
Fox v. Ghosh, 2010 WL 345899 (N.D.Ill. 2010)
Prisoner’s § 1983 claim for failure to provide medical care can go
forward where plaintiff alleged that medical provider defendants did not
give him his seizure medication even though they knew that could cause
serious harm. Plaintiff also alleged the existence of a policy under which
inmates with serious medical conditions were routinely denied access to
medication and medical care.
Henderson v. Fries, 2009 WL 3246673 (N.D. Ind. Oct. 5, 2009)
In § 1983 case filed by pro se prisoner, finding that “[g]iving the Plaintiff
the benefit of the inferences to which he is entitled at this stage, he had a
legitimate, serious medical need while he was at the Allen County Jail,
and his claim that jail officials denied him medical attention for that need
is sufficient to state a claim upon which relief can be granted.”
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Kervin v. Brown, 2009 WL 3720648 (N.D. Ind. Nov. 2, 2009)
Denying motion to dismiss in §1983 case filed by pro se prisoner. The
court noted that “based solely on Mr. Kervin’s pleadings, the defendant
might not have understood what claim he was being asked to defend,
[but] pursuant to 28 U.S.C. § 1915A, this court’s orders have defined the
nature and scope of Mr. Kervin’s claims. Therefore the motion to dismiss
will be denied.”
Marion v. Nickels, 2010 WL 446464 (W.D.Wis. 2010)
Prison retaliation case could go forward after plaintiff alleged that
defendant directed an officer to falsely alter a conduct report in
retaliation for filing a lawsuit; that another defendant retaliated against
him by finding him guilty of the conduct charged in the report; and that a
third defendant continued the retaliation by refusing to overturn the
decision even though she knew it was false. “Although one might
question the likelihood that plaintiff will be able to prove his allegations,
that is not the test.”
Riley v. County of Cook, 682 F.Supp.2d 856, 861, 862 (N.D. Ill. 2010)
Applying Leatherman and stating that “an official capacity claim can
survive even with conclusory allegations that a policy or practice existed,
so long as facts are pled that put the defendants on proper notice of the
alleged wrongdoing.”
“In this case, Defendants contend that Plaintiff’s official liability claims
against all Defendants are deficient. As to Counts I and II against
Andrews and Dart, Defendants urge that they contain unsupported
conclusions that Defendants acted with deliberate indifference by failing
to maintain appropriate suicide prevention policies. However, given the
above standards, the Court disagrees. Plaintiff’s Complaint alleges that
Andrews and Dart were responsible for the care and management of the
prisoners at Cook County Jail, and had policymaking authority to
implement appropriate procedures to do so. Plaintiff further alleges that
Andrews and Dart acted with deliberate indifference by failing to
institute suicide prevention practices at Cook County Jail, and elaborates
six specific examples of inadequate procedures as well as the failure to
adequately monitor the jail cells. Plaintiff claims that Hopkins’ suicide
was the result of this direct indifference. Plaintiff has clearly gone
beyond bare legal conclusions and provided Defendants with fair notice
of the basis for her claim.”

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Smith v. Sangamon County Sherriff’s Dep’t, 2009 WL 2601253 (C.D.
Ill. Aug. 20, 2009)
Court permits prisoner’s § 1983 claim to go forward based on allegation
that sheriff knowingly housed plaintiff with a violent inmate, since that
gave sheriff fair notice of claim. Failure to train claim could also go
forward based on allegations that officials repeatedly denied proper
medical care and bedding and that several incidents should have
prompted sheriff’s department to provide better training.
Lieberman v. Budz, 2010 WL 369614 (N.D. Ill. 2010) (claim that unit of
prison was infested with vermin and unfit for human habitation was
sufficient despite lack of allegation that defendants were personally
aware of the conditions, because “an inference of involvement was
justified to sustain claims asserted against certain senior officials, such as
the county sheriff or the prison warden, when the claims alleged”
systemic rather than “localized” conditions.)
g.

Ninth Circuit Cases

Anderson v. Towne, 2010 WL 455387, *4 (E.D.Cal. 2010) (prisoner who
used wheelchair for mobility stated Eighth Amendment claim by alleging
existence of dangerous floor tiles at the entrance to the shower, and that
he made defendants aware of dangerous conditions).
Avila v. Cate, 2009 WL 5029827 (ED Cal. Dec. 15, 2009)
Prisoner 1983 case. Plaintiff alleged express racial classification of
inmates. Because express classifications are inherently suspect, that
allegation was sufficient. Allegation that supervisors were put on notice
of discrimination by his complaints was insufficient for supervisory
liability under Iqbal.
Calloway v. Warden Corcoran State Prison, 2010 WL 378042 (E.D.Cal.
2010) (finding allegations of malicious and unnecessary search via
enema procedure sufficient to state claim where strip searches and x-rays
revealed no contraband)
Coric v. County of Fresno, No. 1:08cv1225 JTM (BLM), 2010 WL
364322, at *3, *4 (E.D. Cal. Jan. 25, 2010) (Allegation that, despite
sheriff’s warning of overcrowding, “the County continued to
inadequately fund the jail, even after Plaintiff was beaten in the absence
of sufficient supervision,” was sufficient to state Monell claim.
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Short v. Sanzberro, 2009 WL 5110676 (ED Cal. Dec. 18, 2009)
Prisoner 1983 claim. Although plaintiff stated facts sufficient to show an
unlawful search, his claim failed under Iqbal because he failed to state
which specific defendants participated in the search. Also, his claim that
defendants retaliated against him for filing suit failed under Iqbal
because he did not allege any specific facts to support his conclusory
assertion that the defendants had a retaliatory motive.
Walton v. Butler, 2010 WL 430829 (E.D. Cal. 2010) (allegation that
plaintiff informed defendants that he “was not getting along with his
bunkmate . . . and that he needed to be moved as a result” was sufficient
to state failure to protect claim.
Ward v. Nevada, No. 3:09-CV-00007-RCJ-VPC, 2010 WL 1633461, at
*5 (D. Nev. Feb. 26, 2010) (Iqbal supersedes Leatherman).
Wright v. Shannon, 2010 WL 445203, *11 (E.D.Cal. 2010) (allegation of
failure to protect insufficient where plaintiff “fails to describe the basis
of the threat: how the threat originated, when the threat was made, or
why the threat was made”)
Zuniga v. Jordan, 2009 WL 5198902 (E.D. Cal. Dec. 23, 2009)
Prisoner 1983 claim for excessive force. With respect to supervisory
liability: Plaintiff adequately stated claim against sergeant/supervisor,
who allegedly threatened the use of force and stood by while other
officers rushed in to shoot plaintiff with pepper spray etc. Plaintiff also
adequately alleged claim against sheriff by alleging that he ordered the
use of force at issue.
h.

Tenth Circuit Cases

Arocho v. Nafziger, 2010 WL 681679 (C.A.10 March 1, 2010)
Allegation that director of Bureau of Prisons knew about plaintiff’s
Hepatitis C and refused to approve treatment was sufficient to state
Eighth Amendment claim. Allegation that clinic director was deliberately
indifferent to plaintiff’s Hepatitis C was “thin,” but sufficient, in part
because the relative responsibility of the clinic director depended in large
part on the responsibility of the BOP director: “Obviously, the facts
known to and alleged by Mr. Arocho cannot settle that question. He
knows only what he has experienced and what he has been told by
defendants, i.e., that Hepatitis C is causing him pain and damaging his
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liver, that Nafziger recommended he be treated with Interferon/Ribavirin,
and that Lappin refused to approve the treatment. The nature and extent
of the exchange between Nafziger and Lappin, which may exonerate one
(or both) while implicating the other (or both), is known only by
defendants. In such circumstances, to dismiss the claim against Nafziger
without one more chance at amendment following the reinstatement of
the claim against Lappin could lead to a real injustice: after the dismissal,
Lappin could oppose the claim against him by submitting evidence on
summary judgment indicating that all of the fault lay, rather, with
Nafziger who, having been dismissed with prejudice from the case, could
not be brought back in to answer for his now-demonstrated liability.”
Casanova v. Ulibarri, 2010 WL 437335, *4 (CA10 Feb. 9, 2010) (finding
district court’s disposition of claim “irregular” because it “not only
considered [defendant’s] answer but even treated as true the answer’s
assertion that [defendant] did not start work at the correctional facility
until October 2006.” – the plaintiff’s allegation was sufficient, despite
the lack of specifics about dates, because it provided “enough specifics
concerning [plaintiff] being placed in segregation (which presumably
was not a daily occurrence) that [defendant] could likely identify the
incident.”)
Saunders v. Wilner, 2010 WL 582373 (D.Colo.,2010)
Prisoner’s case under First Amendment and Religious Freedom
Restoration Act. Claims for injunctive relief against officers in their
official capacities can proceed. The issue before the court on these claims
was whether plaintiff had alleged that a substantial burden was imposed
on his religious exercise. Plaintiff had alleged that his religion required
group meditation and that he was restricted to solo practice, which the
court held sufficient allegations of substantial burden.
i.

Eleventh Circuit Cases

Lawrence v. Moore, 2009 WL 4884299 (S.D. Ala. Dec. 9, 2009)
Prisoner alleged failure to provide medical care; court denied motion to
dismiss because “additional information is needed in order to resolve this
claim.”
Preyer v. McNesby, 2009 WL 1605537 (N.D. Fla. June 5, 2009)
In § 1983 case concerning death of prisoner resulting from inadequate
medical care, court rejected defendants’ arguments that plaintiff had
failed to allege that the prisoner suffered from an objectively serious
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medical need: “indeed, in light of the allegations made in the amended
complaint, the court finds the argument offensive. . . . Plaintiff’s
allegations easily are sufficient to establish the objective component of a
claim of deliberate indifference.” Furthermore, “the amended complaint
contains allegations reflecting an obvious need for treatment to which the
defendant either responded in a cursory manner—effectively no response
at all—or by delaying [the prisoner’]s receipt of necessary treatment
which his medical records indicated he required and which he repeatedly
requested.” The court observed that “[w]hile further development of the
record is expected, at this pleading stage of the litigation the court finds
the facts alleged are sufficient to permit the court to draw the reasonable
inference that plaintiff has shown his entitlement to relief on the use of
excessive force claim.”
Smith v. Dekalb County Sheriff’s Office, 2010 WL 308984 (N.D. Ga.
2010) (finding allegation of deprivation of law library insufficient – “The
filing of this complaint in this Court belies any assertion that Plaintiff is
being denied meaningful access to the courts.”)
j.

D.C. Circuit Cases

Smith v. District of Columbia, 674 F.Supp.2d 209, 212-14 & n.2 (D.D.C.
2009) (allegation that municipality knew of systemic problems with
referrals for off-site medical treatment of inmates and specialists care
was conclusory)
“Ms. Smith’s complaint, and indeed the entire record, is devoid of any
facts or allegations that the District of Columbia knew or should have
known about Gilbert Smith’s supposed mistreatment. Nowhere does she
allege that, for example, Gilbert Smith forwarded complaints or
grievances about his treatment to the District of Columbia. . . Although
she alleges that ‘[o]n almost a daily basis, the deceased made requests for
medical care, treatment, and attention,’ the Court cannot reasonably infer
that these requests were made to or forwarded to the District. The
District neither operated, nor provided medical care at, the Correctional
Treatment Facility.”
“To be sure, the D.C. Circuit previously held that a plaintiff need only
plead that a municipality ‘knew or should have known’ about the
ongoing constitutional violations to sustain a claim for Monell liability
predicated on deliberate indifference. . . But Warren preceded Iqbal, and
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must now be interpreted in light of that subsequent Supreme Court
decision.”
Smith v. Corrections Corp. of America, Inc., 674 F.Supp.2d 201, 206,
207 (D.D.C. 2009)
Finding allegations of knowledge against CCA plausible – plaintiff
alleged that “[o]n almost a daily basis, the deceased made requests for
medical care, treatment, and attention including, but not limited to,
providing medication ..., providing prompt and adequate dressing
changes ..., providing of sanitary cell conditions ..., [and] providing of
prompt transfers to medical facilities.” Although these allegations were
also found implausible against the District of Columbia, the court found
them plausible against CCA because CCA “operated the Correctional
Treatment Facility. . . . And Ms. Smith’s allegation that CCA ‘failed to
take reasonable actions to ensure that systemic problems were
addressed,’ coupled with the absence of any indication that Gilbert
Smith’s medical care and treatment improved during his incarceration,
plausibly suggests that CCA failed to act in the face of its employees’
allegedly unconstitutional behavior.”

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