Starr v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DION STARR,  No. 09-55233
Plaintiff-Appellant, D.C. No.
v. 2:08-cv-00508-
COUNTY OF LOS ANGELES; LOS
ANGELES COUNTY SHERIFFS
 GW-SH
Central District of
DEPARTMENT; LEROY BACA, Sheriff; California,
official capacity, Los Angeles
Defendants-Appellees.
 ORDER

Filed October 5, 2011

Before: Stephen S. Trott and William A. Fletcher,
Circuit Judges, and Charles R. Breyer, District Judge.*

Order;
Dissent by Judge O’Scannlain

ORDER

A judge of the court called for a vote on the petition for
rehearing en banc. A vote was taken, and a majority of the
active judges of the court failed to vote for en banc rehearing.
Fed. R. App. P. 35(f).

*The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.

18743
18744 STARR v. COUNTY OF LOS ANGELES
O’SCANNLAIN, Circuit Judge, joined by GOULD,
TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and
IKUTA, Circuit Judges, dissenting from the order denying
rehearing en banc:

A mere two years ago, the Supreme Court rejected the
argument that Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), applied only to antitrust and similarly complex com-
mercial cases, stating that its “decision in Twombly
expounded the pleading standard for ‘all civil actions.’ ” Ash-
croft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (quoting Fed. R.
Civ. P. 1). The panel majority in this case disregards that
holding, suggesting instead that the Twombly/Iqbal standard
does not apply to all civil actions. In reaching this erroneous
result, the panel also resurrects a theory of supervisory liabil-
ity for constitutional torts that the Supreme Court has fore-
closed. I therefore must dissent from the regrettable failure of
our court to rehear this case en banc.

I

Dion Starr, a former inmate of Los Angeles County’s
Men’s Central Jail, alleges that on January 27, 2006, correc-
tional officers willfully opened his cell to allow other prison-
ers to stab him. He further alleges that the officers joined in
the beating and then intentionally prevented him from receiv-
ing prompt medical care. Based on this incident, Starr sued,
among others, Sheriff Leroy Baca of the Los Angeles County
Sheriff’s Department (LASD).

Starr alleges that Sheriff Baca violated his Eighth Amend-
ment rights by failing to take actions to reduce the risk of
inmate-on-inmate violence. In support of this theory, Starr
notes ten incidents of inmate-on-inmate violence that
occurred in L.A. County jails from July 2002 to October
2005.

The incidents cited by Starr have little to do with each other
and nothing to do with the assault on Starr. None of the inci-
 STARR v. COUNTY OF LOS ANGELES 18745
dents involved Starr or the inmates and officers who allegedly
assaulted him. As such, the complaint includes little more
than the sort of “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory allegations,
[that] do not suffice” to survive a motion to dismiss for failure
to state a claim. Iqbal, 129 S.Ct. 1949.

II

Under Rule 8 of the Federal Rules of Civil Procedure, a
plaintiff must allege facts sufficient to raise “a plausible enti-
tlement to relief.” Twombly, 550 U.S. at 559. Because Twom-
bly involved antitrust claims—a unique type of claim prone to
burdensome discovery requests—some speculated that its
“plausibility” standard might be limited to that context. The
Supreme Court eliminated any such speculation in Iqbal,
making clear that Twombly “was based on our interpretation
and application of Rule 8.” 129 S. Ct. at 1953. Rule 8, the
Court emphasized, “governs the pleading standard ‘in all civil
actions and proceedings in the United States district courts.’ ”
Id. (quoting Fed. R. Civ. P. 1).

The panel majority nonetheless finds a “perplexing” con-
flict between Twombly/Iqbal and another pair of cases
decided by the Supreme Court “during roughly the same peri-
od” that “appear[ ] to have applied the original, more lenient
version of Rule 8(a).” Slip Op. at 9819. The panel majority
complains that “it is difficult to know in cases that come
before us whether we should apply . . . the more demanding
standard” of Twombly and Iqbal or “the usual lenient pleading
standard under Rule 8(a).” Id. at 9821.

I fail to see what the majority finds so “perplexing.” The
first allegedly conflicting case, Swierkiewicz v. Sorema, 534
U.S. 506 (2002), was decided five years before Twombly and
was explicitly distinguished in Twombly as a case in which
the court of appeals had required the plaintiff to plead specific
facts beyond those necessary “to state a claim to relief that is
18746 STARR v. COUNTY OF LOS ANGELES
plausible on its face.” See Twombly, 550 U.S. at 570. Like-
wise, the second was a per curiam reversal in which a dis-
missed complaint alleged palpably sufficient facts. See
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Neither case
supports the majority’s conclusion that Twombly/Iqbal does
not apply to all civil actions.

Though the majority ultimately professes to apply some-
thing like the Iqbal plausibility standard, in the end, it applies
what might be deemed “Iqbal Lite” (“Same insufficient com-
plaints, fewer dismissals!”). The majority states that a com-
plaint’s factual allegations must “plausibly suggest an
entitlement to relief,” Slip Op. at 9821, but it wrongly
requires that the determination of whether this standard is met
be made in light of whether it would be “unfair to require the
opposing party to be subjected to the expense of discovery
and continued litigation.” Id.

The majority thus creates a sliding scale in which the
greater the anticipated discovery expense, the greater the
showing of plausibility that is required. The Supreme Court
has rejected such an approach. See Iqbal, 129 S. Ct. at 1953
(“[T]he question presented by a motion to dismiss a complaint
for insufficient pleadings does not turn on the controls placed
upon the discovery process.”). Such a reading is nothing more
than a thinly veiled artifice to confine Twombly to cases in
which discovery is especially costly. In doing so, the majority
inexplicably muddies the waters made crystal clear by the
Supreme Court’s pronouncement in Iqbal.

Today’s unfortunate decision yet again places the Ninth
Circuit on the wrong side of a circuit split. Although courts
have struggled to determine precisely what Iqbal requires,
see, e.g., Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th
Cir. 2010), there was—until now—no dispute that Twom-
bly/Iqbal is the standard that applies.1 The panel majority’s
1
See, e.g., Sepulveda-Villarini v. Dep’t of Educ., 628 F.3d 25, 28-29 (1st
Cir. 2010) (“The make-or-break standard . . . is that the combined allega-
 STARR v. COUNTY OF LOS ANGELES 18747
decision leaves our district court judges in the unenviable
position of reconciling the instructions of the Supreme Court
with those we announce today.

III

A

The panel majority’s analysis of the facts demonstrates
what little resemblance its standard bears to the rule articu-
lated in Twombly and Iqbal. Starr alleges an Eighth Amend-

tions, taken as true, must state a plausible, not a merely conceivable, case
for relief.”); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[W]e apply
a plausibility standard . . . .”); Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (“[Iqbal] makes clear that the Twombly ‘facial plausi-
bility’ pleading requirement applies to all civil suits in the federal
courts.”); Francis v. Giacomelli, 588 F.3d 186, 189 (4th Cir. 2009) (apply-
ing the Iqbal standard of whether the complaint “states plausible claims”
for relief); Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (“To
avoid dismissal, a plaintiff must plead ‘sufficient facts to state a claim to
relief that is plausible on its face.’ ” (quoting Iqbal, 129 S.Ct. at 1949));
Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 243 (6th Cir. 2010)
(requiring that the pleader allege “ ‘enough facts to state a claim to relief
that is plausible on its face’ ” (quoting Twombly, 550 U.S. at 570)); Brooks
v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (“[Iqbal] clarified that Twom-
bly’s plausibility requirement applies across the board, not just to antitrust
cases.”); McAdams v. McCord, 584 F.3d 1111, 1113 (8th Cir. 2009) (“The
complaint ‘must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.’ ” (quoting Iqbal, 129 S. Ct.
at 1949)); U.S. ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163,
1167 (10th Cir. 2010) (“Under 12(b)(6), we review for plausibility.”);
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1261 (11th Cir. 2009)
(“The well-pled allegations must nudge the claim ‘across the line from
conceivable to plausible.’ ” (quoting Twombly, 550 U.S. at 570)); Jones v.
Horne, 634 F.3d 588, 595 (D.C. Cir. 2011) (“To survive a motion to dis-
miss, the pleadings must suggest a plausible scenario that shows that the
pleader is entitled to relief.”); Juniper Networks, Inc. v. Shipley, __ F. 3d
__, 2011 WL 1601995 (Fed. Cir. Apr. 29, 2011) (“[A] complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’ ” (quoting Iqbal, 129 S.Ct. at 1949)).
18748 STARR v. COUNTY OF LOS ANGELES
ment claim based on the conditions of his confinement. He
therefore must plead “factual content that allows the court to
draw the reasonable inference,” Iqbal, 129 S. Ct. at 1949, that
he was injured as a result of “an excessive risk to inmate
health or safety” that Sheriff Baca “kn[ew] of and disregard-
[ed],” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Sheriff
Baca must have been both “aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also [have] draw[n] the inference.”
Id. (emphasis added).

The majority contends that “the factual allegations in
Starr’s complaint plausibly suggest that Sheriff Baca acqui-
esced in the unconstitutional conduct of his subordinates, and
was thereby deliberately indifferent to the danger posed to
Starr.” Slip Op. at 9822. But the majority never explains—
indeed, cannot explain—how it is able to draw this inference.

The facts pleaded by Starr do not plausibly suggest that
Baca “kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety.” Brennan, 511 U.S. at 837. To be sure, a pos-
sible explanation for ten varied and discrete incidents of
inmate-on-inmate violence amongst a prison population of
20,000 might be that the leader of the prison bureaucracy is
callously indifferent to such violence. But possible is not suf-
ficient. Twombly and Iqbal require a plausible explanation
and held that an explanation is not plausible when an “ ‘obvi-
ous alternative explanation’ ” exists. Iqbal, 129 S. Ct. at
1951-52 (quoting Twombly, 550 U.S. at 567).

Here, “the obvious alternative explanation” for the inmate-
on-inmate assaults is that it is virtually impossible for an
administrator in charge of 20,000 inmates—many of whom
are violent—to ensure that they never assault each other.
Starr’s complaint amounts to nothing more than a general
indictment of the LASD. The LASD is the largest sheriff’s
department in the nation. With a budget of $2.4 billion and a
staff of 18,000, it is charged with directly protecting over 4
 STARR v. COUNTY OF LOS ANGELES 18749
million people in the 9.8 million person county. It also pro-
vides critical support to city police departments by housing all
of Los Angeles County’s nearly 20,000 locally jailed inmates.
See Los Angeles County Sheriff’s Department, http://la-
sheriff.org/aboutlasd/execs.html. While size alone does not
absolve its leadership of responsibility for its shortcomings, it
does underscore the difficulty of attributing any specific inci-
dent to the deliberate indifference of the official at the top of
this large bureaucracy. Slip Op. at 9826-27 (Trott, J., dissent-
ing). These ten incidents suggest—at most—that Sheriff Baca
is an ineffective leader. They do not plausibly suggest that he
is deliberately indifferent to inmate violence. Cf. Iqbal, 129 S.
Ct. at 1937 (concluding that the Justice Department’s deten-
tion of a disproportionate number of Arab Muslims in the
wake of 9/11 did not plausibly suggest purposeful discrimina-
tion because the “obvious alternative explanation” was that
the disparate impact was “incidental”).

B

The majority’s conclusion has the effect of inserting
respondeat superior liability into section 1983 despite the
Supreme Court’s admonition that “a plaintiff must plead that
each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Iqbal,
129 S. Ct. at 1949 (rejecting the petitioner’s theory of “super-
visory liability” in which “a supervisor’s mere knowledge of
his subordinate’s discriminatory purpose amounts to the
supervisor’s violating the Constitution”). “In a § 1983 suit or
a Bivens action—where masters do not answer for the torts of
their servants—the term ‘supervisory liability’ is a misnomer.
Absent vicarious liability, each Government official, his or
her title notwithstanding, is only liable for his or her own mis-
conduct.” Id.

As a result, even assuming that Sheriff Baca was deliber-
ately indifferent to an excessive risk of inmate violence, Starr
still cannot recover unless Baca’s indifference caused the
18750 STARR v. COUNTY OF LOS ANGELES
assault on Starr. See Hansen v. Black, 885 F.2d 642, 646 (9th
Cir. 1989) (requiring a “sufficient causal connection” between
the defendant’s wrongful conduct and the constitutional viola-
tion alleged). Thus, to state a cause of action, a plaintiff must
“allege facts sufficient to show that the defendants had actual
knowledge of an impending harm easily preventable, so that
a conscious, culpable refusal to prevent the harm can be
inferred from the defendant’s failure to prevent it.” Santiago
v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (internal quotation
marks omitted).

Starr’s allegations get nowhere close to this standard. As
noted above, Starr alleges that the prior incidents of inmate-
on-inmate violence were caused by correctional officer
negligence—e.g., poor supervision and misclassification of
prisoners. But according to Starr’s own account, his assault
was caused by a group of sadistic correctional officers who
intentionally helped several inmates stab Starr twenty-three
times and then, unsatisfied, joined in the assault themselves.
Thus, even if Sheriff Baca had solved the alleged problems of
lax supervision and inmate misclassification, it is difficult to
see how that would have stopped this assault.

Yet the panel resists the notion that Starr must adequately
plead a nexus between Baca’s alleged deliberate indifference
and Starr’s injury. Instead, it infers deliberate indifference
from violent episodes that do not have a common, concrete
cause that a high-level administrator could readily remedy. In
resisting any attempt to require Starr to tie the prior incidents
to his injury, the majority reveals its true purpose: to impose
respondeat superior in any jurisdiction which has a history of
prior prison problems, no matter how unrelated those prob-
lems are to the plaintiff ’s injuries.

In allowing Starr’s claim to proceed, this court creates a
road map for circumventing the rule against vicarious liability
in constitutional litigation. First, allege a constitutional viola-
tion committed by a low-level employee of a large adminis-
 STARR v. COUNTY OF LOS ANGELES 18751
trative agency. Next, list a number of tangential bad acts
committed by other members of that agency. And, finally,
fault the head of that agency for not sufficiently addressing
the general problem of his subordinates’ poor behavior.
Indeed, it is hard to see why every L.A. County prisoner who
is assaulted by another prisoner does not now have a viable
claim against Sheriff Baca.

IV

The court’s ruling today conflicts with Iqbal in its state-
ment of the pleading standard, in its application of the plead-
ing standard, and in its far-reaching conclusions regarding
supervisory liability. By failing to rehear this case en banc, we
fail to correct these errors and once again must wait for the
Supreme Court to do so for us.

I respectfully dissent.