9.3 SECTION 1983 CLAIM AGAINST SUPERVISORY DEFENDANT IN INDIVIDUAL CAPACITY—ELEMENTS AND BURDEN OF PROOF
In order to prevail on [his] [her] § 1983 claim against the supervisory defendant, [name], the plaintiff must prove each of the following elements by a preponderance of the evidence:
1. the defendant acted under color of law;
2. the act[s] of the defendant’s subordinate[s] [name[s]] deprived the plaintiff of [his] [her] particular rights under [the laws of the United States] [the United States Constitution] as explained in later instructions; and
3. [the defendant directed [his] [her] subordinate[s] in the act[s] that deprived the plaintiff of these rights.]
[the defendant set in motion a series of acts by [his] [her] subordinates that [he] [she] knew or reasonably should have known would cause the subordinates to deprive the plaintiff of these rights.]
[(a) the defendant knew, or reasonably should have known, that [his] [her] subordinate[s] were engaging in these act[s] and that their conduct would deprive the plaintiff of these rights; and
(b) the defendant failed to act to prevent [his] [her] subordinate[s] from engaging in such conduct.]
A person acts "under color of law" when the person acts or purports to act in the performance of official duties under any state, county, or municipal law, ordinance, or regulation. [[The parties have stipulated that] [I instruct you that] the defendant acted under color of law.]
If you find the plaintiff has proved each of these elements, and if you find that the plaintiff has proved all the elements [he] [she] is required to prove under Instruction [specify the instruction[s] that deal with the particular right[s]], your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any one or more of these elements, your verdict should be for the defendant.
Use this instruction only in conjunction with an applicable "particular rights" instruction, such as Instructions 9.9–9.25. Such an instruction should set forth the additional elements a plaintiff must establish to prove the violation of the particular constitutional right or federal law at issue. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir. 2009).
In addition, use this instruction only if the plaintiff alleges a subordinate committed a constitutional violation and there is a causal connection between the violation and the supervisor’s wrongful conduct. Use Instruction 9.2 (Section 1983 Claim Against Defendant in Individual Capacity—Elements and Burden of Proof) if the plaintiff alleges a supervisor personally participated in a constitutional violation.
When there is a factual dispute concerning whether an individual is a supervisor for purposes of § 1983 liability, the court should also instruct the jury on the plaintiff’s burden to prove the defendant’s supervisory status.
This instruction provides alternative formulations to establish a supervisor’s § 1983 liability based on various Ninth Circuit decisions:
In Taylor v. List, the court held a supervisor can be held liable in his or her individual capacity under § 1983 if he or she "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989).
In Larez v. City of Los Angeles, the court approved the district court’s instruction that the jury could find a police chief liable in his individual capacity if he "set[ ] in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he kn[e]w or reasonably should [have] know[n], would cause others to inflict the constitutional injury." (citations omitted). Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991). See also Motley v. Parks, 432 F.3d 1072, 1081 (9th Cir.2005)and Graves v. City of Coeur D’Alene, 339 F.3d 828, 848 (9th Cir.2003).
In Jeffers v. Gomez, the court held a supervisor may be individually liable under § 1983 "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." Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir.2001) (quoting Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.1991) (en banc)).
Although § 1983 suits do not allow for the imposition of vicarious liability and a plaintiff must prove that each supervisory defendant, through his own actions, has violated the Constitution, the factors that a plaintiff must prove in order to establish a claim for supervisory liability depend on the alleged underlying constitutional deprivation. See Ashcroft v. Iqbal, 556 U.S. 662, 675–77 (2009) (finding that plaintiff needed to plead and prove that supervisors acted with discriminatory purpose in order to state a claim for supervisory liability for unconstitutional discrimination); Starr, 652 F.3d at 1206–07 (explaining that because a claim of unconstitutional conditions of confinement may be based on a theory of deliberate indifference, unlike a claim of unconstitutional discrimination, a plaintiff need only show that a supervisor acted or failed to act in a manner that was deliberately indifferent to an inmate’s Eighth Amendment rights in order to hold the supervisor liable for his or her own culpable actions).
In short, "[s]upervisory liability is imposed against a supervisory official in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates, for his acquiescence in the constitutional deprivations of which the complaint is made, or for conduct that showed a reckless or callous indifference to the rights of others." Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir.2005) (citations omitted). See OSU Students Alliance v. Ray, 699 F.3d 1053, 1075 (9th Cir.2012), cert. denied, 2013 WL 1808554 (U.S. 2013) (free speech claims do not require specific intent or purpose; supervisor has requisite mental state if supervisor knowingly acquiesces in subordinate’s violation of plaintiff’s constitutional right to free speech); see also Starr v. Baca, 652 F.3d 1202, 1206–07 (9th Cir.2011) (plaintiff’s allegations that supervisory defendant knew of conditions in jail of his subordinates’ culpable acts and took no action were sufficient to state claim of supervisory liability for deliberate indifference), cert. denied, 132 S. Ct. 2101 (2012).