19-3712
Tangreti v. Bachmann

                           In the
               United States Court of Appeals
                       FOR THE SECOND CIRCUIT



                             AUGUST TERM 2020
                               No. 19-3712

                              CARA TANGRETI,
                              Plaintiff-Appellee,

                                       v.

                          CHRISTINE BACHMANN,
                           Defendant-Appellant. *



             On Appeal from the United States District Court
                    for the District of Connecticut



                         ARGUED: OCTOBER 14, 2020
                        DECIDED: DECEMBER 28, 2020



Before:        WALKER and MENASHI, Circuit Judges. †



*   The Clerk of Court is directed to amend the caption as set forth above.
† Judge Ralph K. Winter, originally a member of the panel, died on
December 8, 2020. The two remaining members of the panel, who are in
agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP
E(b); United States v. Desimone, 

140 F.3d 457

, 458-59 (2d Cir. 1998).
      Plaintiff-Appellee Cara Tangreti was sexually abused by three
correctional officers during her incarceration at York Correctional
Institute. She subsequently sued eight prison supervisory officials
alleging, inter alia, that they violated the Eighth Amendment through
their deliberate indifference to the substantial risk of her sexual abuse
by the three correctional officers. Applying a previously articulated
test for supervisory liability, see Colon v. Coughlin, 

58 F.3d 865

, 873 (2d
Cir. 1995), the district court denied summary judgment and qualified
immunity to one of the defendants, Defendant-Appellant Christine
Bachmann.

      Bachmann appealed from the denial of qualified immunity
arguing that the scope of supervisory liability for deliberate-
indifference claims under the Eighth Amendment is not clearly
established after Ashcroft v. Iqbal, 

556 U.S. 662

(2009), which called the
supervisory-liability test into question. We agree and hold that
(1) after Iqbal, there is no special test for supervisory liability; rather
“a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution,”

id. at 676; (2)

for deliberate-indifference claims under
the Eighth Amendment against a prison supervisor, the plaintiff must
plead and prove that the supervisor had subjective knowledge of a
substantial risk of serious harm to an inmate and disregarded it; and
(3) the pretrial record in this case does not support the inference that
Bachmann had the required subjective knowledge that Tangreti was
at a substantial risk of being sexually abused.

      For these reasons, we REVERSE the district court’s decision
and remand with instructions to enter summary judgment for
Bachmann.


                                    2
             ANTONIO PONVERT III, Koskoff, Koskoff & Bieder, P.C.,
             Bridgeport, CT, for Plaintiff-Appellee.

             MATTHEW B. BEIZER, Assistant Attorney General, for
             William Tong, Attorney General of the State of
             Connecticut, Hartford, CT, for Defendant-Appellant.



MENASHI, Circuit Judge:

      Plaintiff-Appellee Cara Tangreti was a prison inmate at York
Correctional Institute from August 2013 to November 2014. During
her incarceration, Tangreti was sexually abused on numerous
occasions over the course of several months by three correctional
officers—Jeffrey Bromley, Matthew Gillette, and Kareem Dawson—
all of whom were later terminated from their employment with the
Department of Corrections and criminally prosecuted.

      Tangreti subsequently filed suit under 42 U.S.C. § 1983 against
eight prison supervisors alleging, inter alia, that they violated the
Eighth Amendment by displaying deliberate indifference to the
substantial risk of sexual abuse by the three correctional officers. The
district court granted summary judgment to seven of the eight
defendants for the § 1983 claims but denied Defendant-Appellant
Christine Bachmann’s motion for summary judgment, concluding
that there was a genuine issue of material fact as to whether
Bachmann was grossly negligent and that she was not entitled to
qualified immunity. Bachmann appealed from the denial of qualified
immunity.



                                   3
       We conclude that Bachmann is entitled to qualified immunity
because her actions did not “violate[] a statutory or constitutional
right,” let alone such a right “that was clearly established at the time
of the challenged conduct.” Taylor v. Barkes, 

135 S. Ct. 2042

, 2044
(2015). Following Ashcroft v. Iqbal, 

556 U.S. 662

(2009), courts may not
apply a special rule for supervisory liability. Rather, the plaintiff must
directly plead and prove that “each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”

Id. at 676.

       Applying the proper standard, we conclude that there is
insufficient evidence in the pretrial record for the inference that
Bachmann,      through    her    own      actions,   displayed   deliberate
indifference to the substantial risk of sexual abuse. Even considering
only Tangreti’s version of the facts, the pretrial record does not
support the inference that Bachmann had subjective knowledge that
Tangreti was at a substantial risk of sexual abuse. See Farmer v.
Brennan, 

511 U.S. 825

, 829, 837 (1994). It is not sufficient, as the district
court maintained, that Bachmann should have known of the substantial
risk of sexual abuse.

      Accordingly, we reverse the district court and remand with
instructions to enter summary judgment for Bachmann.

                             BACKGROUND

                                      I

      From August 2013 to November 2014, Tangreti was
incarcerated at York Correctional Institute. Over a period of several
months in 2014, Tangreti was sexually abused on numerous occasions




                                     4
by three York correctional officers—Jeffrey Bromley, Matthew
Gillette, and Kareem Dawson.

      During this period, Tangreti lived on the first floor of the Davis
Building. Dawson and Bromley were assigned to the first floor of the
Davis Building. Correctional officers assigned to the first floor had an
office on that floor. Tangreti was sexually abused by Bromley from
May 2014 through September 2014, and by Dawson starting in March
2014. Gillette sexually abused Tangreti twice on the two days that
Gillette was assigned to the Davis Building in September 2014.
Tangreti did not formally report these incidents to any of the staff
until October 31, 2014. On that date, Bachmann and Captain Alex
Smith, who supervised the correctional officers, learned from another
inmate that Tangreti was being sexually abused and questioned
Tangreti about it. 1 York allows an inmate to submit an inmate request
form or inmate administrative remedy anonymously, but Tangreti
did not use these mechanisms.

      During the period of sexual abuse, Bachmann was a counselor
supervisor in the Davis Building and had an office on the first floor.
As a counselor supervisor, Bachmann oversaw the day-to-day
operations of the Marilyn Baker Substance Abuse Program, which is
based in the Davis Building. Bachmann was not Tangreti’s individual


1 On October 24, 2014, Tangreti gave a personal note to Correctional Officer
Daniel Crowley, in which she stated that she was in a relationship with an
unnamed correctional officer. Crowley discarded the note and did not
report this information to any supervisor. After the Department of
Corrections Security Division conducted an investigation into this matter,
Crowley was terminated from his employment and criminally prosecuted.
Tangreti v. Semple, No. 3:17-CV-1420, 

2019 WL 4958053

, at *3 (D. Conn.
October 8, 2019).

                                     5
counselor, but she did interact with the inmates in the substance
abuse program, including Tangreti.

      In her role as a counselor supervisor, Bachmann was not
specifically responsible for compliance matters related to the Prison
Rape Elimination Act (“PREA”), 34 U.S.C. §§ 30301 et seq. However,
if a PREA incident occurred in the Davis Building, Bachmann would
ensure that the proper paperwork was completed and forwarded to
the PREA Coordinator.

      Because she had an office on the first floor of the Davis
Building, Bachmann worked alongside Bromley and Dawson. She did
not know Gillette. On two occasions Bachmann observed
inappropriate interactions between Tangreti and Bromley. Once,
Bachmann noticed Tangreti “lingering at the doorway” of the first-
floor office while Bromley sat behind the desk. Tangreti, 

2019 WL 4958053

, at *19.   Another time, Bachmann witnessed Bromley and
Tangreti speaking in the laundry room of the Davis Building.
Bachmann described the conversation as “inappropriate” because
“they were talking about other staff members.”

Id. In response, Bachmann

claims that she removed Bromley and Tangreti from the
laundry room and told Bromley to “knock it off”—that he “d[idn’t]
need to be talking to inmates about staff, period.” J. App’x 228.
Bachmann also claims that she discussed these incidents with Smith
but did not take any further action because she did not consider the
incidents to be serious. Tangreti disputes that such a discussion
occurred.

      In July 2015, the Department of Corrections Security Division’s
Investigative Office interviewed Bachmann. She reported that she
had “seen some questionable behavior with Bromley in the past,”

                                 6
including “him being too close to the inmates, and having the inmates
in the office when they have no reason to be,” and that “he was always
walking the line of inappropriateness.” Tangreti, 

2019 WL 4958053

, at
*20. She also reported that she had observed that Tangreti and
Bromley were frequently around each other and that other inmates
had complained about their closeness.

      Bachmann further reported that leading up to October 31, 2014,
she noticed a change in Tangreti’s behavior and physical appearance.
Tangreti appeared “anxious,” often visited Bachmann’s office, and
said that she was “very emotional, crying all the time and she didn’t
know why.”

Id. Bachmann also observed

that Tangreti was “not
getting up, or wearing makeup on a regular basis, and she had
definitely gained weight, but not a huge amount.”

Id. On October 31,

2014, Bachmann and Smith questioned Tangreti
about the sexual abuse. Tangreti admitted that she had sexual
encounters with the three correctional officers. York officials
instituted the PREA protocol, which included medical care for
Tangreti and separation from the officers. Tangreti’s allegations were
reported to the Connecticut State Police, resulting in the arrest and
prosecution of the three officers. A formal investigation by the
Department of Corrections Security Division substantiated Tangreti’s
allegations, and the three officers as well as Crowley were terminated
from their employment with the Department of Corrections. Bromley
and Gillette entered guilty pleas in their criminal cases and were
incarcerated.

                                  II

      Tangreti subsequently filed suit under 42 U.S.C. § 1983 against
eight supervisory officials at the Department of Corrections alleging

                                  7
that the officials violated the Eighth Amendment by exhibiting
deliberate indifference to the substantial risk of sexual abuse by the
three officers. 2 At the close of discovery, all eight defendants moved
for summary judgment. The district court granted summary
judgment on the § 1983 claims to every defendant but Bachmann.

      The district court denied summary judgment to Bachmann
because Bachmann “was conceivably personally involved” in the
violations against Tangreti. Tangreti, 

2019 WL 4958053

, at *19. The
district court based its ruling on prior case law establishing that
supervisors may be liable under § 1983 for gross negligence in
supervising subordinates who commit the wrongful acts or for failing
to act on information indicating that unconstitutional acts were
occurring.

Id. (relying on Colon

v. Coughlin, 

58 F.3d 865

, 873 (2d Cir.
1995)). The district court also held that Bachmann is not entitled to
qualified immunity because “[t]he law in the Second Circuit at the
time clearly established that prison inmates had a constitutional right
to be protected from sexual abuse and that prison supervisors could
be liable under § 1983 for gross negligence in supervising
subordinates or for failing to act on information indicating that
unconstitutional acts were occurring.”

Id. at *21

(internal citations,
quotation marks, and alterations omitted).

      Bachmann timely appealed to this court.

                            DISCUSSION

      Bachmann argues on appeal that she is immune from suit
under the doctrine of qualified immunity because her actions did not


2 Tangreti also brought state-law claims for recklessness and intentional
infliction of emotional distress, which are not at issue in this appeal.

                                   8
“violate[] a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” 

Taylor, 135 S. Ct. at 2044

. We agree.

                                    I

      As a threshold matter, we must consider our jurisdiction over
this interlocutory appeal. Ordinarily, a district court’s denial of a
motion for summary judgment is not appealable because it is a non-
final decision. See 28 U.S.C. § 1291 (“The courts of appeals … shall
have jurisdiction of appeals from all final decisions of the district
courts.”); Ortiz v. Jordan, 

562 U.S. 180

, 188 (2011) (“Ordinarily, orders
denying summary judgment do not qualify as ‘final decisions’ subject
to appeal.”). However, a district court’s denial of qualified immunity,
to the extent that it presents a question of law, is a final decision
subject to immediate appeal. Mitchell v. Forsyth, 

472 U.S. 511

, 530
(1985); Vega v. Semple, 

963 F.3d 259

, 272 (2d Cir. 2020). This distinction
proceeds from the recognition that “qualified immunity is in part an
entitlement not to be forced to litigate the consequences of official
conduct” and therefore “a claim of immunity is conceptually distinct
from the merits of the plaintiff’s claim that his rights have been
violated.” 

Forsyth, 472 U.S. at 527-28

.

      Accordingly, “a defendant may not appeal a district court’s
summary judgment order—even one addressing the availability of a
qualified immunity defense—insofar as that order determines
whether or not the pretrial record sets forth a genuine issue of fact for
trial.” Catone v. Spielmann, 

149 F.3d 156

, 159 (2d Cir. 1998) (internal
quotation marks omitted). But Bachmann may invoke our jurisdiction
to review legal questions related to her claim of qualified immunity,
“such as whether [her] conduct … violated ‘clearly established’ law


                                    9
or a fortiori whether it violated the law at all.” Grune v. Rodriguez, 

176 F.3d 27

, 32 (2d Cir. 1999) (internal citation omitted).

      For this reason, in this appeal, Bachmann must “support an
immunity defense on stipulated facts, facts accepted for purposes of
the appeal, or the plaintiff’s version of the facts that the district judge
deemed available for jury resolution.” Salim v. Proulx, 

93 F.3d 86

, 90
(2d Cir. 1996).

      Bachmann offers two arguments. First, she argues that
following the Supreme Court’s decision in Iqbal, the level of personal
involvement necessary to establish that a prison supervisory official
violated the Eighth Amendment through deliberate indifference is
not clearly established. Second, she argues that—even based on the
uncontested facts—her personal involvement was insufficient to
establish a violation of the Eighth Amendment under the proper post-
Iqbal standard. These are reviewable questions of law. We review the
denial of qualified immunity de novo. 

Vega, 963 F.3d at 272

.

                                    II

      Bachmann does not dispute that prison inmates have a clearly
established constitutional right to protection from sexual abuse. See
Boddie v. Schnieder, 

105 F.3d 857

, 861 (2d Cir. 1997). Rather, she argues
that her liability as a supervisor of the Davis Building is not clearly
established. This court articulated standards for supervisory liability
in Colon v. Coughlin, 

58 F.3d 865

(2d Cir. 1995), but the Supreme
Court’s decision in Iqbal called those standards into question and this
court has not clarified whether or to what extent the Colon standards
continue to apply. See Reynolds v. Barrett, 

685 F.3d 193

, 205 n.14 (2d
Cir. 2012) (“Iqbal has … engendered conflict within our Circuit about



                                    10
the continuing vitality of the supervisory liability test set forth in
Colon.”).

      The district court relied on Colon to conclude that Bachmann
was “conceivably personally involved” in violating Tangreti’s rights
under the Eighth Amendment either because Bachmann was grossly
negligent in supervising the officers or because she failed to act on
information indicating that Tangreti was at substantial risk of sexual
abuse. Tangreti, 

2019 WL 4958053

, at *19.

      We disagree with that conclusion. Iqbal holds that a plaintiff
may not rely on a special test for supervisory liability. Rather, “a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.” 

Iqbal, 556 U.S. at 676

. Accordingly, for deliberate-
indifference claims under the Eighth Amendment against a prison
supervisor, the plaintiff must plead and prove that the supervisor had
subjective knowledge of a substantial risk of serious harm to an
inmate and disregarded it. See 

Farmer, 511 U.S. at 837

. The pretrial
record in this case does not support the inference that Bachmann had
the required subjective knowledge that Tangreti was at a substantial
risk of being sexually abused.

                                   A

      Before the Supreme Court decided Iqbal, we identified five
categories of evidence that may establish the liability of a supervisory
official for a subordinate’s conduct under § 1983:

      The personal involvement of a supervisory defendant
      may be shown by evidence that: (1) the defendant
      participated directly in the alleged constitutional
      violation, (2) the defendant, after being informed of the

                                  11
      violation through a report or appeal, failed to remedy the
      wrong, (3) the defendant created a policy or custom
      under which unconstitutional practices occurred, or
      allowed the continuance of such a policy or custom,
      (4) the defendant was grossly negligent in supervising
      subordinates who committed the wrongful acts, or
      (5) the defendant exhibited deliberate indifference to the
      rights of [the plaintiffs] by failing to act on information
      indicating that unconstitutional acts were occurring.

Colon, 58 F.3d at 873

.

      Fourteen years later, the Supreme Court decided Iqbal. In Iqbal,
a Pakistani Muslim detainee filed suit against federal officials
including the former Attorney General of the United States and the
former Director of the Federal Bureau of Investigation. He alleged
that each official “knew of, condoned, and willfully and maliciously
agreed to subject [Iqbal] to harsh conditions of confinement … on
account of his religion, race, and/or national origin” in violation of his
rights under the First and Fifth 

Amendments. 556 U.S. at 669

(internal
alterations, quotation marks, and citations omitted). The Court
explained that—for Bivens suits against federal officials and for § 1983
suits against state officials—the “[g]overnment officials may not be
held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.”

Id. at 676.

Thus, “[b]ecause
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”

Id. The Court noted

that “[t]he factors necessary to establish a
Bivens violation will vary with the constitutional provision at issue.”

Id. When, as in

Iqbal, “the claim is invidious discrimination in
contravention of the First and Fifth Amendments … the plaintiff must

                                    12
plead and prove that the defendant acted with discriminatory
purpose,” regardless of whether the defendant is a subordinate or a
supervisor.

Id. A supervisor’s “mere

knowledge of his subordinate’s
discriminatory purpose” is not sufficient because that knowledge
does not “amount[] to the supervisor’s violating the Constitution.”

Id. at 677.

The Court explained that such a “conception of ‘supervisory
liability’”—according to which a supervisor may be held liable based
on a lesser showing of culpability than the constitutional violation
requires—is “inconsistent” with the principle that officials “may not
be held accountable for the misdeeds of their agents.”

Id. Iqbal cast doubt

on the continued viability of the special
standards for supervisory liability set forth in Colon. See 

Reynolds, 685 F.3d at 205

n.14. Without clear direction from this court, 3 district




3  Since Iqbal, we have not clarified whether and to what extent the
standards for supervisory liability set forth in Colon remain viable. See
Lombardo v. Graham, 807 F. App’x 120, 124 n.1 (2d Cir. 2020) (summary
order) (noting that “Iqbal may have heightened the requirements for
supervisory liability” but declining to decide the issue); Raspardo v. Carlone,

770 F.3d 97

, 117 (2d Cir. 2014) (declining to decide the fate of Colon’s
supervisory liability test because the defendant was not liable under any of
the Colon categories); 

Reynolds, 685 F.3d at 205

n.14 (declining to decide the
fate of Colon’s supervisory liability test because it was “not properly before
us”); Grullon v. City of New Haven, 

720 F.3d 133

, 139 (2d Cir. 2013) (declining
to decide the fate of Colon’s supervisory liability test but noting that Iqbal
“may have heightened the requirements for showing a supervisor’s
personal involvement with respect to certain constitutional violations”); see
also Morgan v. Dzurenda, 

956 F.3d 84

, 90 (2d Cir. 2020) (noting but not
applying the “doctrine of supervisory liability” because it was “not
implicated” in that case); Brandon v. Kinter, 

938 F.3d 21

, 37 (2d Cir. 2019)
(concluding, without mentioning Iqbal’s impact on Colon’s supervisory
liability test, that four supervisory defendants who were “informed of the

                                      13
courts in the circuit have sought, with inconsistent results, to
determine the effect of Iqbal on supervisory liability. Some district
courts have concluded that Iqbal imposes an “‘active conduct’
standard” according to which a supervisor may be held liable only if
he or she took an active part in the constitutional violation but may
not be held liable for inaction or acquiescence. 4 Other district courts
have suggested that Iqbal requires a greater showing of intent for



violation through a report or appeal” and “failed to remedy the wrong”
could be liable under the second Colon category).
4  Bellamy v. Mount Vernon Hosp., No. 07-CV-1801, 

2009 WL 1835939

, at *6
(S.D.N.Y. June 26, 2009) (“Iqbal’s ‘active conduct’ standard only imposes
liability on a supervisor through section 1983 if that supervisor actively had
a hand in the alleged constitutional violation. Only the first and part of the
third Colon categories pass Iqbal’s muster—a supervisor is only held liable
if that supervisor participates directly in the alleged constitutional violation
or if that supervisor creates a policy or custom under which
unconstitutional practices occurred. The other Colon categories impose the
exact types of supervisory liability that Iqbal eliminated—situations where
the supervisor knew of and acquiesced to a constitutional violation
committed by a subordinate.”); see also Newton v. City of New York, 

640 F. Supp. 2d 426

, 448 (S.D.N.Y. 2009) (“[P]assive failure to train claims
pursuant to section 1983 have not survived the Supreme Court’s recent
decision in Ashcroft v. Iqbal.”); Spear v. Hugles, No. 08-CV-4026, 

2009 WL 2176725

, at *2 (S.D.N.Y. July 20, 2009) (holding that because “each
Government official, his or her title notwithstanding, is only liable for his
or her own misconduct … only the first and third Colon factors have
survived the Supreme Court’s decision in Iqbal”) (internal quotation marks
omitted); Joseph v. Fischer, No. 08-CV-2824, 

2009 WL 3321011

, at *14
(S.D.N.Y. Oct. 8, 2009) (“[U]nder Iqbal, a defendant can be liable under
section 1983 only if that defendant took an action that deprived the plaintiff
of his or her constitutional rights. A defendant is not liable under section
1983 if the defendant’s failure to act deprived the plaintiff of his or her
constitutional right.”).

                                      14
§ 1983 claims related to invidious discrimination but not necessarily
to other constitutional violations. 5

       Circuit courts have considered the impact of Iqbal as well. The
Tenth Circuit has concluded that, “after Iqbal, [a p]laintiff can no
longer succeed on a § 1983 claim against [a d]efendant by showing
that as a supervisor he behaved knowingly or with deliberate
indifference that a constitutional violation would occur at the hands
of his subordinates, unless that is the same state of mind required for
the constitutional deprivation he alleges.” Dodds v. Richardson, 

614 F.3d 1185

, 1204 (10th Cir. 2010) (internal quotation marks omitted).
“To establish a violation of § 1983 by a supervisor, as with everyone
else, then, the plaintiff must establish a deliberate, intentional act on
the part of the defendant to violate the plaintiff’s legal rights.” Porro
v. Barnes, 

624 F.3d 1322

, 1327-28 (10th Cir. 2010) (Gorsuch, J.) (internal
quotation marks and alteration omitted). The focus is on what the
supervisor did or caused to be done, “the resulting injury attributable
to his conduct, and the mens rea required of him to be held liable,


5 See, e.g., D’Olimpio v. Crisafi, 

718 F. Supp. 2d 340

, 347 (S.D.N.Y. 2010) (“As
Iqbal noted, the degree of personal involvement varies depending on the
constitutional provision at issue; whereas insvidious discrimination claims
require a showing of discriminatory purpose, there is no analogous
requirement applicable to … allegations regarding [a] search, arrest, and
prosecution. … Thus, the five Colon categories for personal liability of
supervisors may still apply as long as they are consistent with the
requirements applicable to the particular constitutional provision alleged
to have been violated.”); Sash v. United States, 

674 F. Supp. 2d 531

, 544
(S.D.N.Y. 2009) (“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.”).

                                      15
which can be no less than the mens rea required of anyone else. Simply
put, there’s no special rule of liability for supervisors. The test for
them is the same as the test for everyone else.”

Id. at 1328

(internal
citations omitted). Other circuits have endorsed this view. 6

       We join these circuits in holding that after Iqbal, there is no
special rule for supervisory liability. Instead, a plaintiff must plead
and prove “that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” 

Iqbal, 556 U.S. at 676

. “The factors necessary to establish a [§ 1983] violation
will vary with the constitutional provision at issue” because the
elements of different constitutional violations vary.

Id. The violation must

be established against the supervisory official directly.




6 Nelson v. Corr. Med. Servs., 

583 F.3d 522

, 534-35 (8th Cir. 2009) (en banc)
(“In a § 1983 case an official is only liable for his own misconduct and is not
accountable for the misdeeds of his agents under a theory such as
respondeat superior or supervisor liability. [The official] is thus liable only
if he personally displayed deliberate indifference to the [relevant]
hazards.”) (internal citations, quotation marks, and alterations omitted); see
also Vance v. Rumsfeld, 

701 F.3d 193

, 204 (7th Cir. 2012) (en banc) (“Iqbal held
that knowledge of subordinates’ misconduct is not enough for liability. The
supervisor must want the forbidden outcome to occur.”); OSU Student All.
v. Ray, 

699 F.3d 1053

, 1073 n.15 (9th Cir. 2012) (“Iqbal means that
constitutional claims against supervisors must satisfy the elements of the
underlying claim, including the mental state element, and not merely a
threshold supervisory test that is divorced from the underlying claim.”);
Carnaby v. City of Houston, 

636 F.3d 183

, 189 (5th Cir. 2011) (“Under § 1983
… a government official can be held liable only for his own misconduct.
Beyond his own conduct, the extent of his liability as a supervisor is similar
to that of a municipality that implements an unconstitutional policy.”)
(internal citation omitted).

                                      16
       In this case, “[t]o state a claim under the Eighth Amendment on
the basis that a defendant has failed to prevent harm, a plaintiff must
plead both (a) conditions of confinement that objectively pose an
unreasonable risk of serious harm to their current or future health,
and (b) that the defendant acted with ‘deliberate indifference.’” Vega,

963 F.3d 259

, 273 (2d Cir. 2020) (quoting 

Farmer, 511 U.S. at 834

).
Deliberate indifference in this context “means the official must
‘know[] of and disregard[] an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.’” Id. (quoting 

Farmer, 511 U.S. at 837

).

       Tangreti must therefore establish that Bachmann violated the
Eighth Amendment by Bachmann’s own conduct, not by reason of
Bachmann’s supervision of others who committed the violation. She
must show that Bachmann herself “acted with ‘deliberate
indifference’”—meaning that Bachmann personally knew of and
disregarded an excessive risk to Tangreti’s health or safety. Id.
(quoting 

Farmer, 511 U.S. at 834

). Tangreti cannot rely on a separate
test of liability specific to supervisors. See Whitson v. Stone Cty. Jail, 

602 F.3d 920

, 928 (8th Cir. 2010) (“These defendants are thus liable only if
they personally displayed deliberate indifference to the risk that [the
inmate] would be assaulted.”) (emphasis added).

                                      B

       The pretrial record does not support the inference that
Bachmann “kn[ew] of and disregard[ed]” a substantial risk of sexual
abuse by the three officers in the sense that Bachmann was both
“aware of facts from which the inference could be drawn that a
substantial risk of serious harm exist[ed], and [that s]he … also dr[e]w


                                     17
the inference.’” 

Farmer, 511 U.S. at 837

. Accordingly, Bachmann is
entitled to summary judgment.

       Even taking Tangreti’s version of the facts, the pretrial record
does not permit the inference that Bachmann had subjective
knowledge of the risk of the sexual abuse inflicted on Tangreti and
that she decided to disregard that risk. Bachmann observed Bromley
and Tangreti interacting inappropriately twice: once when she
overheard Bromley and Tangreti conversing in the laundry room
about other correctional staff and another time when she noticed
Tangreti lingering in Bromley’s doorway. Neither time did Bachmann
observe a sexual interaction.

       Apart from Bachmann’s two personal observations, the
undisputed pretrial record shows that inmates complained to
Bachmann that Bromley and Tangreti were too familiar but not that
they were sexually involved. It shows that, close to October 31, 2014,
Bachmann had noticed changes in Tangreti’s physical appearance
and emotional behavior but did not infer that the changes stemmed
from ongoing sexual abuse.

       Given this record, at most it may be said that Bachmann could
have or should have made an inference of the risk of sexual abuse. 7
But there is no evidence that she made that inference until October 31,

7 Tangreti also argues that Bachmann knew that the lack of cameras in the
Davis Building increased the risk of sexual abuse. However, Tangreti
acknowledges that Bachmann had discussed the need for cameras with the
warden and deputy warden. Moreover, it is undisputed that Bachmann
was not responsible either for procuring cameras or for York’s camera
policy. The district court correctly concluded that apart from discussing this
problem with other officials, Bachmann had no further responsibility to
resolve it. See Tangreti, 

2019 WL 4958053

, at *19.

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2014, when she discovered, and questioned Tangreti about, the
ongoing sexual abuse. There is therefore insufficient evidence in the
pretrial record that Bachmann acted with deliberate indifference to
support Tangreti’s § 1983 claim. Contrary to the district court’s
conclusion, it is not enough for Tangreti to show that Bachmann was
negligent, or even grossly negligent, in her supervision of the
correctional officers or in failing to act on the information she had.
The deliberate-indifference standard “require[es] a showing that the
official was subjectively aware of the risk,” 

Farmer, 511 U.S. at 829

,
and that showing has not been made.

                                   ***

      In sum, we agree with Bachmann that the scope of supervisory
liability under § 1983 for violations of the Eighth Amendment was not
clearly established at the time of the relevant conduct. To hold a state
official liable under § 1983, a plaintiff must plead and prove the
elements of the underlying constitutional violation directly against
the official without relying on a special test for supervisory liability.
In the context of the Eighth Amendment, that requires a showing of
deliberate indifference on the part of the state-official, and the pretrial
record in this case cannot meet that standard. Accordingly, we
REVERSE the judgment of the district court and remand with
instructions to enter summary judgment for the defendant.




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