Dissenting:
I respect my experienced colleagues’ evaluation of Starr’s final complaint, but my view of it is different. In the main, his complaint has all the hallmarks of an attempted end run around the prohibition against using the vicarious liability doctrine of respondeat superior to get at the boss.
Judge Fletcher accurately describes what Starr must allege to support an actionable claim of individual supervisory liability for deliberate indifference, but I respectfully disagree that Starr’s complaint measures up to that standard. Yes, we have held that “acquiescence or culpable indifference” may suffice to show that a supervisor “personally played a role in the alleged constitutional violations,” Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.2005); but simply alleging generally that the Sheriff is “answerable for the prisoner’s safe-keeping” doesn’t cut it. Id. Plaintiffs complaint does nothing more than allege raw legal conclusions with insufficient facts to support them. Starr’s complaint runs afoul of our Circuit’s rule that to establish a claim for individual supervisory liability, a plaintiff must allege facts, not simply conclusions; and those facts must show that the individual sued was personally involved in the alleged deprivation of the plaintiffs civil rights. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998). Otherwise, the action fails for failure to state a viable claim. Id. Even if Judge Fletcher is correct that “supervisory liability” survives Iqbal, a plaintiff must still allege facts to get into court.
Here, I pause for a moment to underscore and to highlight a critical aspect of the causation aspect of this issue that too often is lost in the undertow of the jailhouse activities of which the plaintiff complains: this part of Starr’s case is a claim not under Monell for an actionable governmental policy or custom or practice, but a claim for individual responsibility — not agency or department or political unit responsibility, but individual responsibility. It follows as night the day that the individual under scrutiny must have personally engaged in identifiably actionable behavior, even with respect to a claim of deliberate indifference. As Judge Wu correctly explained,
A supervisor may be liable 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.” *1218... As the Ninth Circuit explained in Redman v. County of San Diego, 942 F.2d 1435, 1446-47 (9th Cir.1991):
This latter liability is not a form of vicarious liability. Rather, it is direct liability. Under direct liability, plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right. “The requisite 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.” Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir.1978).
We are evaluating Starr’s revised third amended complaint. The district court gave him multiple opportunities factually to amend to articulate the Sheriffs personal involvement in this matter. In particular, the court requested on November 6, 2006, that Starr “state precisely the basis for the claims as to defendant L. Baca in the [anticipated] revised third amended complaint.” In response, Starr alleged only more conclusions and vague and insufficient allegations that the Sheriff (1) “knew or reasonably could have known,” (2) “knew or reasonably should have known,” and (3) was “aware or should have become aware” of the jail conditions of which Starr complains. He sums up his boilerplate allegations with a statement that the Sheriff is liable because he had either “personal knowledge or constructive knowledge” of all these conditions. Alleging that the Sheriff “could ” have known, “should” have known, and “should” have become aware is tantamount to admitting that Starr had no facts to support his allegations. The test that governs this case consists of two words, not one. Indifference is not enough. For indifference to be actionable, it must be deliberate. Starr’s conclusory allegations amount to no more than formulaic flak fired into the sky in an attempt to bring down the squadron leader.
When we cease to look at the Los Angeles Sheriffs Department (LASD) as an abstraction and look at the reality, we see good reasons for requiring facts before permitting lawsuits against the Sheriff himself: the agency is gigantic. The LASD is the largest Sheriffs Department in the world. It covers 3,171 square miles, 2,557,754 residents, and by contract 42 of the 88 incorporated cities in Los Angeles County. The Department employs 8,400 law enforcement officers and 7,600 civilians and is responsible for 48 courthouses and 23 substations. The Men’s Central Jail alone houses a revolving population of 5,000 inmates. In addition, the Department operates the Twin Towers Correctional Facility, the Mira Loma Detention Facility, the Pitchess Detention Center, and the North County Correctional Center. Persons charged with or convicted of crimes are in over one hundred different locations. The layers of administration and management between what happens in a jail are many and they are complex. To infer that specific incidents which occur in a jail are necessarily known by the Sheriff is to engage in fallacious logic.
This complexity does not absolve the Department of responsibility for respecting the constitutional rights and general well-being of its charges, but it does show how inappropriate it is to sue the Sheriff individually unless in terms of causation the Sheriff can be personally tied to the actionable behavior at issue. Just being a disappointing or even an insufficiently engaged public servant is not enough. Those *1219issues are for the ballot box and the County Board of Supervisors, not the courts.
Judge Wu was clear and correct in his articulation of the complaint’s deficiencies:
What you need to do is state precisely what it is that you are claiming other than he’s the general supervisor of the jail facility, and therefore, he can be sued individually if anything bad happens, because bad things have happened in the past at the jail. It has to be something more than that to give rise to a claim. That’s what I want. I want you to state what precisely it is that he supposedly did wrong, and if it’s a failure to supervise it can’t be just a general failure of supervision. It has to be something that is specific. That’s what I want.
Earlier in the same hearing, Starr’s counsel said this, which is equally indicative of no facts, just “theory:”
MR. PAZ: Your Honor, let me give you an analogy, Your Honor. All I can do is put it on the record and try to explain to the court the theory.
It’s no different than if we had the head of a hospital, and a surgeon five floors down below is killing people on a regular basis. If the head of the hospital doesn’t act, then they will be liable.
Another concession appeared when counsel said, ‘We’re still at the pleading stage where we are just saying do we have a right to go to Mr. Baca and do discovery and try to prove our case.” Counsel’s statement here collides with what the Supreme Court said in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009): “Rule 8 ... does not unlock the doors for a plaintiff armed with nothing more than conclusions.” Id. at 1949-50.
Sadly, bad things routinely happen in the best of jails. The same is true of hospitals, armies, churches, nursing homes, synagogues, boy scout troops, and legislatures. To attach personal legal liability to the leaders of these organizations, however, requires much more than, ‘Well, she must have known and must have been deliberately indifferent, because after all, it happened on her watch.’
Accordingly, although we review this issue de novo, I agree with Judge Wu’s end-of-the-process conclusion:
The TAC [Third Amended Complaint], as compared to previous pleadings, adds no new allegations which adequately identifies [sic] the precise nature of Baca’s misfeasance or nonfeasance or which establishes a sufficient causal link between Baca’s actions or inaction and the alleged violation of plaintiffs constitutional rights.
Nor does Plaintiffs opposition memorandum point to any language in the TAC which demonstrates such a causal connection. Plaintiff does not allege that Baca himself directly participated in any way in the January 27, 2006 incident or that he was involved in any review or investigation of it. Likewise, Plaintiff has not cited to any specific policy implemented by Baca which was the “moving force [in] the constitutional violation.” Plaintiff simply argues that he “has amply satisfied the second ‘causal connection’ prong by alleging facts which put Baca on notice of ongoing unconstitutional conduct of his subordinates. ” However, the mere fact that Baca may have known about prior incidents [that] allegedly occurred in the jail does not show that Baca has implemented a policy that is tantamount to a repudiation of constitutional rights.
Judge Fletcher’s Opinion, with all respect, is difficult to reconcile with Iqbal. I extract portions of the Iqbal Opinion to illustrate my point:
The allegations against petitioners are the only ones relevant here. The com*1220plaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges 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.” It further alleges that “[t]he policy of holding post-September-llth 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.” Lastly, the complaint posits that petitioners “each knew of, condoned, and willfully and maliciously agreed to subject” respondent 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.” The pleading names Ashcroft as the “principal architect” of the policy, and identifies Mueller as “instrumental in [its] adoption, promulgation, and implementation.”
Id. at 1944 (internal citations omitted) (alterations and omissions in original).
Respondent [Iqbal] ... argues that, under a theory of “supervisory liability,” petitioners can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions among detainees.” That is to say, respondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of “supervisory liability” is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a § 1983 suit or a Bivens action — where masters do not answer for the torts of their servants— the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of [a] clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discriminations; the same holds true for an official charged with violations arising from his or her superintendent responsibilities. .
Id. at 1949 (emphasis added) (internal citation omitted).
Two working principles underlie our decision in [Bell Atlantic Corp. v.] Twombly [550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ]. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Thread-bare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation ” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to *1221draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not “show[n]” — “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
Id. at 1949-50 (emphasis added) (internal citations omitted) (second alteration in original).
We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners “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.” The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, and that Mueller was “instrumental” in adopting and executing it. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim, namely, that petitioners adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” As such, the allegations are conclusory and not entitled to be assumed true. To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs’ express allegation of a “‘contract, combination or conspiracy to prevent competitive entry,’ ” because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.
Id. at 1951 (emphasis added) (internal citations omitted) (alterations in original).
Although Iqbal puts considerable meat on this wise rule’s bones, it is not new. In 1988, for example, we said in Taylor v. List, a failed lawsuit against Nevada’s Attorney General and the Director of the Nevada State Prison alleging their “knowledge of and failure to prevent the alleged constitutional violations by their subordinates,” the following:
Liability under section 1983 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.
880 F.2d 1040, 1043, 1045 (9th Cir.1989) (emphasis added) (internal citation omitted).
The days of pleading conclusions without factual support accompanied by the wishful hope of finding something juicy during discovery are over. Wisely, we have moved up judgment day to the complaint stage rather than bog down the courts and parties with pre-summary judgment combat.
This conclusion, of course, does not leave Starr without redress. He may sue the Sheriff in his official capacity, which is the same as suing the County of Los Angeles and the Sheriffs Department, and he may pursue his lawsuit on the ground of official policy or longstanding custom and practice — but he may not sue the Sheriff individually just because he is the Sheriff. See Pembaur v. City of Cincinnati 475 U.S. 469, 478, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Community House, Inc. v. City of Boise, 623 F.3d 945, 973 (9th Cir.2010). The district court clearly understands this distinction:
*1222In other words, any time anything goes wrong of any sort Baca gets blamed and he can be individually liable as opposed to being liable [in his official capacity] as the agent of the county. I can understand that claim. There is no problem with that one, but you are suing him on an individual basis.
Given the amount of time and effort already devoted to trying to get the Sheriff into this case, I seriously doubt any additional facts will come forward. Thus, the next step is summary judgment. So be it.
Accordingly, I respectfully dissent.