In Federal civil rights actions under 42 U.S.C. § 1983, supervisors are frequently named as defendants, even in circumstances were the supervisor was not directly involved or did not even have knowledge of the actions of the subordinate that gave rise to the claimed deprivation of civil rights. Shift Commanders, Lieutenants, Captains, Deputy Chiefs and Chiefs of Police are commonly named in “shotgun pleadings” when there has been a claim of excessive force or other alleged violation of Federal or Constitutional law. Supervisors should know when their conduct exposes them to liability for the actions of their subordinates and when it does not.
Proof Necessary to Establish a Supervisor’s Liability
In order to impose liability on a supervisor, a plaintiff must have a basis to factually allege and ultimately prove: 1) a violation of a Federal law or a constitutional deprivation; and 2) that the supervisor directed the action giving rise to the violation; or 3) that the supervisor had knowledge of the action, or consented, agreed, or acquiesced to the violation; or 4) that the supervisor knew that the subordinate was engaged in a violation of federal law or a deprivation of constitutional rights and was deliberately indifferent to the consequences of the subordinate’s action; or 5) that the supervisor was directly involved in the establishment or maintenance of a policy, practice or custom that can be identified as having caused the violation of Federal law or constitutional rights. Mere knowledge of a violation, without more, may not be enough to impose supervisory liability. Under developing case law, in order to pursue a supervisory liability claim, a Plaintiff must plead and ultimately prove knowledge and personal involvement that directly ties the supervisor to the violation or is a cause of the violation.
Prior to filing a complaint, counsel for a plaintiff who intends to name a supervisor in a civil rights action should conduct an investigation to determine whether there is conduct that can tie the Supervisor’s action or inaction to a specific incident of excessive force or other violation. Simply naming a supervisor without alleging specific facts invites a motion to dismiss under Fed. R. Civ. P. 8 and/or 12(b)6.
There is No Automatic, No “Strict Liability,” for Simply Being a Supervisor
There is no liability under the theory of Respondeat Superior, i.e., vicarious liability for the actions of a subordinate simply because an individual is a supervisor. There is no strict liability for the conduct of a subordinate. First, it should be noted that Municipalities cannot be liable for the actions of its agents or employees under a theory of respondeat superior; Second, in order for liability to accrue to a supervisor, there must be personal involvement in the alleged wrongful conduct or policy; Third, proving supervisory liability requires a showing of personal direction, actual knowledge, and/or knowing acquiescence in the violation; Fourth, there must a contemporary knowledge of the violation and proof of a pattern of approval, through knowing acquiescence or inaction.
Assessing the Initial Pleading and the Early Filing of a Motion to Dismiss
Our courts require a heightened pleading standard that places a burden on the plaintiff to set forth specific facts which will support a claim against a Municipality or supervisor. Mere conclusions will subject a complaint to a motion for summary dismissal.
Current Federal pleading standards require the complaint set forth:
- “more than an unadorned, the-defendant-unlawfully-harmed-me accusation”;
- more than “labels or conclusions”;
- may not be a “a formulaic recitation of the elements of a cause of action”;
- must state a claim to relief that is “plausible on its face”; and
- “facial plausibility” requires that the court be able to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Before filing a complaint naming supervisors, plaintiff’s counsel would be well served to conduct a thorough investigation and include and plead such facts that will support the supervisor’s personal involvement in the alleged violation. The current Federal pleading requirements place a special burden on plaintiff’s counsel in asserting claims relating to policies, custom, practice, and a supervisor’s involvement as such proofs may not be readily ascertainable and may only become known after discovery has been taken.
As for defense counsel, an early assessment of a complaint is critical to narrowing the scope of the claims and limiting the number of defendants. If a factually unsupported claim is asserted against a supervisor officer, the client is best served by counsel filing an early motion to dismiss as the responsive pleading. Narrowing the claims and potential defendants at the earliest stage is not only cost effective, it is the proper approach to protecting the individual supervisors named in the action.
For cases/materials relevant to these issues look to:
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009);
Barkes v. First Correctional Medical, 766 F.3d 307 (3d Cir. 2014);
Argueta v. U.S. Immigration & Customs Enforcement, 643 F.3d 60, 70 (3d Cir. 2011);
Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010);
Reedy v. Evanson, 615 F.3d 197, 231 (3d Cir. 2010);
Marrakush Soc. v. New Jersey State Police, 2009 WL 2366132, at *31 (D.N.J. July 30, 2009);
McKenna v. City of Philadelphia, 582 F.3d 447, 460-61 (3d Cir. 2009);
Bayer v. Monroe County Children and Youth Services, 577 F.3d 186, 190 n.5 (3d Cir. 2009);
Horton v. City of Harrisburg, 2009 WL 2225386, at *5 (M.D. Pa. July 23, 2009);
Colburn v. Upper Darby Township, 838 F.2d 663, 673 (3d Cir. 1988);
Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997);
Baker v. Monroe Tp., 50 F.3d 1186 (3d Cir. 1995);
Groman v. City of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995);
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988);
Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir.2008);
Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008);
Fed. R. Civ. P. 8;
Fed. R. Civ. P. 12(b)6.
About the author:
Eric Marcy, Esq., is Of Counsel at Lyons & Associates, P.C., with Offices in Somerville, Morristown, and Freehold. His practice areas include criminal, civil, civil rights, professional licensing, administrative law, and class action litigation.
Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010.
Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.
Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009, 2017 to the present.
He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil and criminal matters.