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Supervisory Status Alone is Not Enough to State a Claim Under 42 USC §1983

By Kimberley A. Koester, Esq.

When prisoners file lawsuits, in addition to prison and medical staff, they often sue the supervisors of prison staff and supervising medical and corrections officials.  However, if those supervisors have not had any direct contact or involvement in the prisoner’s claims, any 42 USC § 1983 lawsuit will fail.  First, “[r]espondeat superior or vicarious liability will not attach under § 1983.” City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). Instead, liability under § 1983 ‘must be based on more than . . . the right to control employees.’”  Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).

Shehee, one of the Sixth Circuit’s key cases on the issue, explained that “a supervisory official’s failure to supervise, control or train the offending individual is not actionable”.  Rather, the supervisor has to directly participate in or otherwise encourage the “specific incident of misconduct”. At the very least, a prisoner must show that the supervisor discreetly sanctioned, approved, or knowingly consented to the unconstitutional conduct of the lower level employees.  Id.

In Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir. Mich. 2013), the supervisor in question was the former mayor, Kilpatrick.  The Court explained when suing Kilpatrick for constitutional violations under § 1983, a plaintiff “must demonstrate that the actor ‘directly participated’ in the alleged misconduct, at least by encouraging, implicitly authorizing, approving or knowingly acquiescing in the misconduct, if not carrying it out himself.” (Citing Shehee, supra). Further, it is “not enough to show that the actor merely failed to act against misconduct of which he was aware.” Flagg, supra.

Essex v. County of Livingston, 518 Fed. Appx. 351, 355 (6th Cir. Mich. 2013) cautions that “where the supervisor is also the policymaker, an individual-capacity claim may appear indistinguishable from an official-capacity or municipal claim, but these failure-to-train claims turn on two different legal principles.”   To find individual liability, the supervisor must have encouraged or directly participated in the specific misconduct at issue.  Further, a “mere failure to act will not suffice to establish supervisory liability.”  Id, citing Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006)

The nature of the supervisory role does not seem to effect the outcome, as long as the supervisor has not participated in the specific conduct or urged the behavior.  For example, “the denial of a grievance or the failure to act upon the filing of a grievance is insufficient to establish liability under § 1983.” Johnson v. Aramark, 482 Fed. Appx. 992, 993 (6th Cir. Ky. 2012)

The mere ability to control employees is not enough, and a department or higher level supervisor is treated the same as a lower level supervisor.  In Parsons v. Caruso, 491 Fed. Appx. 597, 609 (6th Cir. Mich. 2012), the inmate sued various prison officials including the Michigan Department of Corrections Director Caruso.   However, the inmate “fail[ed] to present evidence that Caruso had any direct involvement in Parsons’s medical care or treatment at Standish, or any direct involvement in the supervision of officials . . . “  The Court noted in Parsons  that “’the liability of supervisors [cannot] be based solely on the right to control employees.’” citing McQueen v. Beecher Cmty. Schools, 433 F.3d 460, 470 (6th Cir. 2006).  While there appeared to be unconstitutional conduct by some employees, “Parsons cannot show that Caruso ‘either encouraged the specific incident of misconduct or in some other way directly participated in it.’” Id. (Quoting Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (internal quotation marks omitted). Therefore, there was no claim against Director Caruso “because Parsons has not produced any evidence that Caruso was involved in the direct supervision of the other defendants in this action and because the policy claim cannot be brought against Caruso, Caruso did not act with deliberate indifference . . .” Parson, supra.

In Watson v. City of Marysville, 518 Fed. Appx. 390, 393-394 (6th Cir. Ohio 2013), with claims of supervisory liability against the Police Chief and Assistant Police Chief, the plaintiff was required to “show, at a minimum, ‘that the [supervisors] at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.’ McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006) (internal quotation marks and citation omitted).”   The Court explained that to find supervisory liability, the plaintiff first had to “prove his claim of municipal liability against the City”, showing “that its failure to train officers on the proper use of tasers” was deliberate indifference. Absent a showing of an underlying constitutional violation, there was no supervisory liability. “Thus, a prerequisite to both of these claims is that a constitutional violation has occurred.”  Watson, supra. The Court found that “[b]ecause Watson cannot show either a clearly established right or a violation thereof, his derivative claims for municipal liability and supervisory liability were also properly dismissed.”  S.L. v. Pierce Twp. Bd. of Trs., 771 F.3d 956, 963 (6th Cir. Ohio 2014) also explains that a “’prerequisite of supervisory liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor.’” Citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006). S.L. then stated:  “But because Bartley did not violate S.L.’s constitutional rights, supervisory liability does not attach to DelGrande under § 1983.

Therefore, prisoners and others who wish to sue supervisors, invoking supervisory liability under 42 USC § 1983, have to demonstrate more than simply a supervisor’s right to control employees.  The mere fact that a supervisor took no action, failed to supervise, control or train the offending employee does not give rise to a § 1983 claim.  Instead, the supervisor has to directly participate in or otherwise encourage the specific action or incident of wrongdoing. A plaintiff and/or prisoner must show that the supervisor discreetly sanctioned, approved, or knowingly consented to the unconstitutional conduct of the employee to show a claim under § 1983, along with an underlying Constitutional violation.