FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ALLEN HYDRICK; DAVID
LANPHERE; SHAUNDALE GRIFFIN;
FRANK CISNEROS; PAUL PEDERSON;
STEVEN ROBERT CERNIGLIA; GARY
PRICE; DANIEL MROWICI; KENNETH
CIANCIO; MICHAEL MCCLURE; JAMES
MATA; RICHARD BISHOP; MELVIN
FIELDS; RON LEE; LEONARD PIERRE;
THOMAS PRICE; JIMMY GUTHRIE;
BRIAN KELLY; WOODROW JONES;
VASHON JACKSON; BRUCE RILEY;
FRED SCOTT; DEAN DANFORTH;
SAMMY PAGE; JAMES PETERS;
GRAYLING MITCHELL; CARLOS
SAUCEDO; ANTHONY DACAYONA;
CHARLES SALAS, et al,
Plaintiffs-Appellees,
v.
MELVIN E. HUNTER, aka/Jon
DeMorales; CRAIG NELSON;
GRENDA ERNST,
Defendants-Appellants,
and
279
280 HYDRICK v. HUNTER
ROBERT MCDANIEL; JERRY
REYNOLDS; ROBERT PENATE;
SAMUEL ROBINSON; MARK
MAHHONEY; STEPHEN MAYBERG;
ANITA JUDD; MICHAEL HUGHES; JIM
VESS; JACK TOWNSEND; MARK
PALMER; ROCKY SPURGEON; ARNIE
GOBBELL; JIM WILEY; MARK No. 03-56712
KALIONZES; ELAINE SHERRILL; GLAN
MIKEL; JAN MAIRE ALARCON D.C. No.
CV-98-07167-TJH
BARUCH MARGALIT; WILLIAM
KNOWLTON; DIANE IMRAM; CARMEL OPINION
MULLER; DALE ARNOLD; GABRIELLA
PALADINO; JEAN DANSEREAU; et al;
WILLIAM CHARLES THIEL; ROBERT
DOUGLAS LEFORT; ARNOLD
SCHWARZENEGGAR, Governor of
California,
Defendants.
On Remand from the Supreme Court of the United States
Filed January 12, 2012
Before: Mary M. Schroeder, Harry Pregerson, and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Pregerson
282 HYDRICK v. HUNTER
COUNSEL
Joel E. Krischer, Latham & Watkins LLP, Los Angeles, Cali-
fornia, for the plaintiffs-appellees.
Randall R. Murphy, Deputy Attorney General, Los Angeles,
California, for the defendants-appellants.
OPINION
PREGERSON, Circuit Judge:
This case concerns a class action by civilly committed per-
sons (“Plaintiffs”) confined at Atascadero State Hospital in
Atascadero, California. Plaintiffs are confined at Atascadero
State Hospital under California’s Sexually Violent Predator
Act. See Cal. Welf. & Inst. Code § 6600 et seq. The Defen-
HYDRICK v. HUNTER 283
dants are administrators of the hospital and various state offi-
cials who serve in a supervisory capacity.1
BACKGROUND
In 2002, Plaintiffs filed their Second Amended Complaint2
in federal district court alleging that the conditions of their
confinement violate their constitutional rights under 42 U.S.C.
§ 1983. The Second Amended Complaint, in addition to
requesting declaratory and injunctive relief, also sought
money damages against the Defendants in their individual
capacities. Before the district court, Defendants, claiming
qualified immunity, moved to dismiss Plaintiffs’ claims for
money damages. The district court denied that motion. Defen-
dants then brought an interlocutory appeal under the collateral
order doctrine, see Morley v. Walker, 175 F.3d 756, 759 (9th
Cir. 1999), challenging the district court’s order denying qual-
ified immunity.
In 2007, we issued an opinion affirming in part and revers-
ing in part the district court’s order denying the Defendants
qualified immunity. Hydrick v. Hunter, 500 F.3d 978, 983
(9th Cir. 2007). Specifically, we held that the Defendants
were entitled to qualified immunity on Plaintiffs’ Ex Post
Facto, Double Jeopardy, Procedural Due Process, and Eighth
Amendment claims, as well as Plaintiffs’ First Amendment
“refusal of treatment” claim. Id. at 992, 1000. But we also
held that the Defendants were not entitled to qualified immu-
nity on the remainder of Plaintiffs’ claims. Id. at 1000. Like
the district court, our opinion did not rule on the merits of
1
Because this case is on remand from the Supreme Court, we reiterate
the background of this case only briefly. A fuller description of the factual
and procedural history can be found in our amended opinion, reported at
500 F.3d 978.
2
The Second Amended Complaint contains no substantive alterations
from the First Amended Complaint, but merely substitutes the current
Executive Director of Atascadero State Hospital for the former Executive
Director. See Hydrick v. Hunter, 500 F.3d 978, 984 n.4 (9th Cir. 2007).
284 HYDRICK v. HUNTER
Plaintiffs’ claims or on Plaintiffs’ claims for injunctive and
declaratory relief.
The Defendants then petitioned for certiorari. The Supreme
Court granted the writ, vacated our judgment, and remanded
for reconsideration in light of Ashcroft v. Iqbal, 129 S. Ct.
1937 (2009). Hunter v. Hydrick, 129 S. Ct. 2431 (2009). On
remand, we ordered supplemental briefing by the parties on
the impact of Iqbal. After receiving several extensions, the
parties completed supplemental briefing on January 31, 2011.
As discussed in more detail below, after reviewing the
Supreme Court’s decision in Iqbal, the parties’ supplemental
briefs, and our court’s recent decision in Starr v. Baca, 652
F.3d 1202 (9th Cir. 2011), we now hold that Defendants are
entitled to qualified immunity on Plaintiffs’ claims for money
damages. The conclusory allegations in Plaintiffs’ Second
Amended Complaint are insufficient to establish Defendants’
individual liability for money damages.
Our holding, however, is limited. Qualified immunity is
only an immunity from a suit for money damages, and does
not provide immunity from a suit seeking declaratory or
injunctive relief. See Center for Bio-Ethical Reform, Inc. v.
Los Angeles County Sheriff Dept., 533 F.3d 780, 794-95 (9th
Cir. 2008); Los Angeles Police Protective League v. Gates,
995 F.2d 1469, 1472 (9th Cir. 1993). Accordingly, on
remand, the Plaintiffs may proceed with their claims for
declaratory and injunctive relief.
DISCUSSION
The Supreme Court remanded this case to us for reconsid-
eration in light of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
Hunter, 129 S. Ct. at 2431. After we deal with Iqbal, we will
consider our court’s recent decision in Starr v. Baca, 652 F.3d
1202 (9th Cir. 2011), which interpreted Iqbal. Both cases
HYDRICK v. HUNTER 285
involve supervisor liability and qualified immunity under 42
U.S.C. § 1983.
In Iqbal, the plaintiff was a citizen of Pakistan and a Mus-
lim who was “arrested on criminal charges and detained by
federal officials” in the wake of the September 11, 2001
attacks. 129 S. Ct. at 1942. The plaintiff filed suit in federal
district court, alleging that “he was deprived of various consti-
tutional protections while in federal custody.” Id. Included in
his complaint were claims against former Attorney General
John Ashcroft (“Ashcroft”) and the Director of the F.B.I.,
Robert Mueller (“Mueller”). Id. Specifically, the plaintiff
alleged that Ashcroft and Mueller discriminated against him
in violation of the First and Fifth Amendments because they
adopted a policy that subjected the plaintiff “to harsh condi-
tions of confinement on account of his race, religion, or
national origin.” Id. On appeal, the Second Circuit held that
Ashcroft and Mueller were not entitled to qualified immunity.
Id.
[1] The Supreme Court reversed. Id. at 1954. In reversing
the Second Circuit, the Supreme Court noted that, “[b]ecause
vicarious liability is inapplicable to Bivens and § 1983 suits,
a plaintiff must plead that each Government-official defen-
dant, through the official’s own individual actions, has vio-
lated the Constitution.” Id. at 1948.3 The Court then held that
Ashcroft and Mueller were entitled to qualified immunity
because plaintiff’s complaint was based on “bald” and “con-
clusory” allegations and did not contain “plausible” allega-
tions that Ashcroft and Mueller personally committed a
constitutional tort. Id at 1948-52. In so holding, the Court
3
A suit against a federal official under Bivens v. Six Unknown Fed. Nar-
cotics Agents, 403 U.S. 388 (1971), “is the federal analog to suits brought
against state officials under . . . 42 U.S.C. § 1983.” Iqbal, 129 S. Ct. at
1948 (internal quotation marks and citation omitted). Because Ashcroft
and Mueller were federal, rather than state officials, Iqbal’s complaint was
based on Bivens liability rather than liability under 42 U.S.C. § 1983. Id.
at 1943.
286 HYDRICK v. HUNTER
explained that the plaintiff failed to allege sufficient facts to
“plausibly suggest” that Ashcroft and Mueller acted with a
“discriminatory purpose” — a required element of plaintiff’s
discrimination theory. Id. at 1950, 1948. The Court did not
consider a claim for supervisory liability under § 1983 based
on a claim of “deliberate indifference.” See Starr, 652 F.3d at
1207 (“We see nothing in Iqbal indicating that the Supreme
Court intended to overturn longstanding case law on deliber-
ate indifference claims against supervisors in conditions of
confinement cases.”).
In Starr, the plaintiff, an inmate at the Los Angeles County
Jail, was physically attacked by inmates and deputy sheriffs
in January of 2006. 652 F.3d at 1204. The plaintiff filed suit
in federal district court against Los Angeles County Sheriff
Leroy Baca as well as the deputies involved in the attack. Id.
The plaintiff argued that the conditions of his confinement
violated the Eighth and Fourteenth Amendments. Id. The
plaintiff contended that even though Sheriff Baca was not per-
sonally involved in the attack, Sheriff Baca was nonetheless
“liable in his individual capacity because he knew or should
have known about the dangers in the Los Angeles County
Jail, and that he was deliberately indifferent to those dangers.”
Id. at 1204-05 (emphasis added).
[2] Our court held that Sheriff Baca was not entitled to
qualified immunity because the plaintiff pleaded sufficient
facts to plausibly suggest Sheriff Baca’s “knowledge of” and
“acquiescence in” the unconstitutional conduct of his subordi-
nates. Id. at 1207. In reaching this holding, our court
recounted plaintiff’s “many allegations in the complaint
detailing what Sheriff Baca knew or should have known, and
what Sheriff Baca did or failed to do.” Id. at 1209. Our court
noted that the plaintiff’s complaint contained detailed allega-
tions about: (a) a letter Sheriff Baca received from the Depart-
ment of Justice in 1997 discussing a pattern and practice of
“abuse of inmates by sheriff’s deputies working in the jail and
inmate on inmate violence”; (b) weekly reports Sheriff Baca
HYDRICK v. HUNTER 287
received “from his subordinates responsible for reporting
deaths and injuries in the jails”; (c) a 1999 Memorandum of
Understanding that Sheriff Baca and the County of Los Ange-
les entered into with the Department of Justice, where Sheriff
Baca and the County agreed to “address and correct the con-
tinuous constitutional violations to which inmates were being
subjected”; (d) a 2006 report by the Department of Justice
which found “noncompliance with many of its recommenda-
tions regarding the abuse of inmates”; (e) an incident in 2002
where Sheriff Baca was informed of a physical attack on an
inmate by a sheriff’s deputy and the inmate’s subsequent
death, and no investigation was conducted; (f) the deaths of
two inmates in 2003 as a result of lax oversight by sheriff’s
deputies; (g) the deaths of three inmates in 2004 as a result of
lax oversight by sheriff’s deputies; and, (h) a 2005 incident
where an inmate who was booked on a non-violent misde-
meanor was misclassified by sheriff’s deputies, placed near
“high risk” inmates, and beaten to death by fellow inmates.
Id. at 1209-11 (internal quotation marks omitted).
After recounting the detailed factual allegations in plain-
tiff’s complaint, our court held that Sheriff Baca was not enti-
tled to qualified immunity under a “deliberate indifference”
theory of liability because: (1) the plaintiff’s complaint
recounted specific incidents where Sheriff Baca was on notice
of inmate deaths and injuries and “systematic problems in the
county jails”; and, (2) the factual allegations in the plaintiff’s
complaint “plausibly suggest[ed] that Sheriff Baca acquiesced
in the unconstitutional conduct of his subordinates,” because
there was no “obvious alternative explanation” for Sheriff
Baca’s inaction. Id. at 1216 (internal quotation marks and
citation omitted).
[3] As discussed in greater detail below, in the case before
us, the factual allegations in Plaintiffs’ complaint resemble
the “bald” and “conclusory” allegations in Iqbal, instead of
the detailed factual allegations in Starr. See Iqbal, 129 S. Ct.
at 1951; Starr, 652 F.3d at 1216. Accordingly, Plaintiffs
288 HYDRICK v. HUNTER
pleaded insufficient facts to establish “plausible” claims
against the Defendants in their individual capacities and the
Defendants are entitled to qualified immunity.
I. Defendants Are Entitled to Qualified Immunity on
Plaintiffs’ Claims for Money Damages
The Plaintiffs’ complaint proceeds under two theories of
liability against the Defendants in their individual capacities.
Plaintiffs allege that the Defendants are: (a) liable for their
own conduct because they created policies and procedures
that violated the Plaintiffs’ constitutional rights; and, (b) lia-
ble because they were deliberately indifferent to their subordi-
nates’ constitutional violations. See Hydrick, 500 F.3d at 988.
Plaintiffs’ allegations fail to state claims against Defendants
in their individual capacities under either theory of liability.
[4] Plaintiffs’ complaint is based on conclusory allegations
and generalities, without any allegation of the specific wrong-
doing by each Defendant. For example, Plaintiffs’ Fourth
Amendment claim alleges that Defendants’ “policies, prac-
tices and customs subject [Plaintiffs] to unreasonable
searches; searches as a form of punishment; degrading public
strip searches; improper seizures of personal belongings; and
the use of unreasonable force and physical restraints.” But
there is no allegation of a specific policy implemented by the
Defendants or a specific event or events instigated by the
Defendants that led to these purportedly unconstitutional
searches.
[5] Plaintiffs’ remaining claims suffer from the same infir-
mities. Plaintiffs’ First Amendment retaliation claim alleges
that “Defendants have personal knowledge of retaliation
against [the Plaintiffs] for participation in lawsuits, but Defen-
dants’ policies, practices and customs permit and encourage
retaliation.” But there is no allegation of a specific policy or
custom, nor are there specific allegations regarding each
Defendant’s purported knowledge of the retaliation. The
HYDRICK v. HUNTER 289
remainder of Plaintiffs’ claims are likewise devoid of specif-
ics.
[6] The absence of specifics is significant because, to
establish individual liability under 42 U.S.C. § 1983, “a plain-
tiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” Iqbal, 129 S. Ct. at 1948. Even under a “delib-
erate indifference” theory of individual liability, the Plaintiffs
must still allege sufficient facts to plausibly establish the
defendant’s “knowledge of” and “acquiescence in” the uncon-
stitutional conduct of his subordinates. Starr, 652 F.3d at
1206-07. In short, Plaintiffs’ “bald” and “conclusory” allega-
tions are insufficient to establish individual liability under 42
U.S.C. § 1983. See Iqbal, 129 S. Ct. at 1950-53; cf. Starr, 652
F.3d at 1216-17.
II. Plaintiffs May Proceed on their Claims for
Declaratory and Injunctive Relief
[7] “[C]laims for injunctive and declaratory relief are unaf-
fected by qualified immunity.” Malik v. Brown, 16 F.3d 330,
335 n.4 (9th Cir. 1994) (citing Los Angeles Police Protective
League, 995 F.2d at 1472). Accordingly, Plaintiffs may pro-
ceed with their claims for declaratory and injunctive relief,
notwithstanding our holding on qualified immunity.
CONCLUSION
Defendants are entitled to qualified immunity on Plaintiffs’
claims for money damages. On remand, the Plaintiffs may
proceed with their claims for declaratory and injunctive relief.
REVERSED and REMANDED.