                                     PRECEDENTIAL


    UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
                     ______


                  No. 12-3074
                     ______


      KAREN BARKES, as administratrix
       of the Estate of Christopher Barkes;
  ALEXANDRA BARKES; BRITTANY BARKES


                        v.


   FIRST CORRECTIONAL MEDICAL, INC.;
  STANLEY TAYLOR; RAPHAEL WILLIAMS;
CERTAIN UNKNOWN INDIVIDUAL EMPLOYEES
OF THE STATE OF DELAWARE DEPARTMENT OF
              CORRECTIONS;
CERTAIN UNKNOWN INDIVIDUAL EMPLOYEES
  OF FIRST CORRECTIONAL MEDICAL, INC.;
   STATE OF DELAWARE DEPARTMENT OF
              CORRECTIONS


      Stanley Taylor and Raphael Williams,
                          Appellants
                           ______


      On Appeal from the United States District Court
                 for the District of Delaware
       (District of Delaware Civil No. 1-06-cv-00104)
         District Judge: Honorable Leonard P. Stark
                           ______


                Argued September 24, 2013
Before: AMBRO, FISHER and HARDIMAN, Circuit Judges


                 (Filed: September 5, 2014)




Catherine C. Damavandi (ARGUED)
Marc P. Niedzielski
Delaware Department of Justice
820 North French Street
Carvel Office Building, 6th Floor
Wilmington, DE 19801




                              2
      Counsel for Appellants


Jeffrey K. Martin (ARGUED)
Martin & Associates
1508 Pennsylvania Avenue
Suite 1C
Wilmington, DE 19806
      Counsel for Appellees
                           ______


                OPINION OF THE COURT
                           ______



FISHER, Circuit Judge.
        In this appeal, we consider whether two prison
administrators are entitled to qualified immunity from an
Eighth Amendment claim that serious deficiencies in the
provision of medical care by a private, third-party provider
resulted in an inmate’s suicide. We agree with the District
Court that they are not. For reasons to be discussed, we will
affirm.




                               3
                               I.1
                               A.
        Plaintiff-Appellees Karen Barkes, Alexandra Barkes,
and Brittany Barkes (collectively, “Appellees”) are the widow
and children, respectively, of decedent Christopher Barkes
(“Barkes”).2 Barkes committed suicide on November 14,
2004, while being held at the Howard R. Young Correctional
Institution (“HRYCI”) in Wilmington, Delaware, awaiting
transportation to the Violation of Probation Center in Sussex
County, Delaware. He had been arrested the previous day on
an administrative warrant. Barkes was on probation for a
March 2004 domestic abuse conviction, and had been arrested
for loitering while waiting to purchase drugs. Appellees filed
suit against then-Delaware Commissioner of Correction
Stanley Taylor, then-Warden of HRYCI Raphael Williams,
the Delaware Department of Corrections (“DOC”), and the
third-party vendor providing medical services in HRYCI,
First Correctional Medical, Inc. (“FCM”). Appellants here
are Taylor and Williams.
      Barkes was a troubled man with a long history of
mental health and substance abuse problems. On March 15,
1997, Barkes killed two people in a car accident while driving
drunk. He pleaded guilty to two counts of second-degree
vehicular homicide. Seven months after the accident, on

1
  Because we are reviewing the District Court’s denial of
summary judgment on the grounds of qualified immunity, we
view all disputed facts in the light most favorable to the party
claiming injury. Wright v. City of Phila., 509 F.3d 595, 597
n.1, 599 (3d Cir. 2005).
2
  Karen Barkes appears both in her individual capacity and as
administrator of Barkes’s estate.




                               4
October 31, 1997, Barkes attempted suicide while
incarcerated by ingesting an overdose of pills that he had
apparently stockpiled. He was incarcerated at HRYCI (also
known as Gander Hill Prison), the same facility at which he
would eventually commit suicide in 2004.
       Barkes served two and a half years in prison, during
which time he completed a substance abuse program. He
stayed sober for approximately four years before relapsing in
December 2003. He entered the Recovery Center for
Delaware on December 15, 2003, but could stay for only one
week because of limited funding from his insurance provider.
On December 21, 2003, police responded to a reported
domestic altercation at Barkes’s home. After police placed
him in handcuffs, he became unconscious and unresponsive.
Paramedics were called, who opened Barkes’s airways,
provided oxygen, and administered drugs to counteract a
suspected heroin overdose. Barkes admitted – and the
toxicology report in his medical records confirms – that he
consumed one and a half pints of vodka and a “bag” of
heroin, quantity unspecified. He later characterized this
overdose as a suicide attempt.
       Shortly before the December 2003 relapse, Barkes
checked himself into the Rockford Center in Wilmington,
Delaware, where he was diagnosed with post-traumatic stress
disorder. David Becker, Barkes’s probation officer at the
time, opined that Barkes was “[n]ot only . . . a threat to the
community, he is also a threat to himself,” in a “violation
report” dated February 3, 2004. JA at 296.
       On September 10, 2004, sixty-five days before his
death, Barkes attempted to kill himself twice in one day.
During an afternoon house visit by a probation officer, Barkes
was found asleep on top of a bottle of gin. He appeared to be




                              5
extremely intoxicated – he apparently could not recall who he
was – and the officer arrested Barkes. Two hours after his
arrest, Barkes had a blood alcohol content (“BAC”) of .222.
Because of his high BAC the officers took Barkes to a
hospital, where he admitted to a nurse that he had also
consumed forty Tylenol tablets. While being treated, Barkes
attempted to kill himself by wrapping an IV cord around his
neck. Both incidents were recorded in his probation file.
       Barkes received a new probation officer shortly before
his death. In notes dated November 9, 2004 – five days
before he died – the officer indicated her awareness that
Barkes suffered from bipolar disorder, attended one therapy
session and six Alcoholics Anonymous meetings each week,
and took four medications for his bipolar condition and other
mental health problems. The notes also acknowledged three
individuals – the record suggests that they were therapists,
counselors, and/or social workers – whom Barkes was
currently seeing.
       Barkes was arrested on November 13, 2004 for
violating his probation. At approximately 3:00 p.m. that day,
he underwent a medical intake/screening procedure at HRYCI
conducted by a licensed practical nurse (“LPN”) who was
employed by FCM, a private contractor hired to provide
medical services in the prison. The intake procedure included
a form containing questions about Barkes’s mental health,
including questions about suicidal ideation. Barkes indicated
on the form that he had attempted suicide in 2003 but did not
include the 1997 attempt or the two attempts in September
2004. He stated that he had no current suicidal ideation.
       The intake procedure also screened for seventeen
suicide risk factors. If the inmate checked eight or more
factors on a form, or if certain other serious risk factors were




                               6
present (for example, the arresting officer expressed concern
that the inmate was a suicide risk), the on-call physician was
to be notified and suicide prevention measures initiated.
Barkes answered yes to two of the questions: (1) that he had a
psychiatric history; and (2) that he had previously attempted
suicide. The LPN completed a standard medical intake form,
which included questions as to whether Barkes showed signs
of “altered mental status . . . or abnormal conduct.” JA at 71.
The LPN indicated “no” to both. Barkes also denied having a
history of drug abuse. The LPN referred Barkes to mental
health services on a “routine” urgency level, based on his
psychiatric history and the 2003 suicide attempt.
        Barkes was placed alone in a cell in the booking and
receiving area. At some point during the evening of
November 13, Barkes called his wife Karen. According to
Karen, Barkes told her that he “can’t live this way anymore,”
and said that he was going to kill himself. JA at 2, 72. It is
undisputed that Karen did not inform the DOC of Barkes’s
stated intent.
        Shortly before 4:00 a.m. on November 14th, in an
unrelated incident, another inmate at HRYCI was transferred
to the infirmary from his cell and placed on Psychiatric Close
Observation, Level II (“PCO II”). Patients placed on PCO II
are given a “suicide gown” and are checked every 15 minutes
by staff. Appellants’ Br. at 10 (citing Lamb v. Taylor, No.
08-324, 2011 WL 4006586, at *2 n.1 (D. Del. Sept. 8, 2011)
(describing medical care at HRYCI in the context of another
lawsuit arising out of a prison suicide)).
       At 8:00 a.m. on the 14th, Barkes ate breakfast alone in
his cell. Correctional officers observed him lying awake on
his bed at 10:45, 10:50, and 11:00 a.m., and none recalled
anything unusual about him or any indication that he was




                              7
suicidal. At 11:35 a.m., when an officer arrived at his cell to
deliver his lunch, Barkes was hanging by a sheet from a steel
partition. Medical staff responded and Barkes was taken to a
hospital, but attempts to resuscitate him were unsuccessful.
                               B.
       FCM entered into a Health Care Services Contract
with DOC on June 17, 2002, and was the contracted medical
provider at HRYCI at the time of Barkes’s suicide. In that
role it was responsible for inmate intake and medical
screening. The DOC reviewed FCM’s performance in
monthly Medical Review Committee (“MRC”) meetings,
overseen by DOC Bureau Chief of Management Services
Joyce Talley. Talley was the DOC’s appointed representative
for administering the contract with FCM. See Del. Code
Ann. tit. 11, § 6517(13) (currently codified at Del. Code Ann.
tit. 11, § 6517(12)) (requiring that the Commissioner of
Correction “[a]dminister[] the medical/treatment services
contract, or appoint[] a designee to administer the
medical/treatment contract”).
        As Chief of the DOC Bureau of Management Services,
Talley had many responsibilities. She testified that her areas
of oversight responsibility included “fiscal, payroll,
budgeting, food services for the inmates, health care for the
inmates, substance abuse for the inmates, management
information systems, purchasing and warehousing, facilities
maintenance and construction.” JA at 364-65. She further
testified that, in each of these areas except for health care, she
relied on a “key manager [to do] the day-to-day” oversight.
JA at 366. The “key manager” was an official within the
DOC, but with respect to health care services Talley relied on
FCM and the MRC, testifying that she did not make any
assessments regarding FCM’s job performance and that no




                                8
individual working within the DOC “had the knowledge or
the background . . . [to] go out to see if the medical care was
provided.” JA at 367.
        The contract outlined standards of care to which FCM
must adhere. To the extent that the health care standards of
the American Correctional Association and the National
Commission on Correctional Health Care (“NCCHC”)
differed, FCM was to adhere to the higher standard. Taylor
testified that he believed that ensuring FCM “deliver[ed]
health care in accordance with NCCHC standards” was
sufficient to meet his responsibility to deliver health care to
the inmate population. JA at 51. Williams testified that he
had a responsibility to ensure that HRYCI was in compliance
with NCCHC standards, but that he believed he had no
personal responsibility to ensure FCM’s compliance. JA at
55. Talley also testified that she did not believe it to be her
responsibility to ensure FCM’s compliance with NCCHC
standards. JA at 368 (“Q: Did you believe that it was your
responsibility when you served in that role as bureau chief
that you reviewed the compliance with the standards set forth
by NCCHC? A: No.”).
       In 1997, NCCHC published standards for use by
correctional facilities to screen inmates for physical and
mental health problems during the intake process. These
standards included a variety of forms to be completed by
medical intake staff. The NCCHC altered its standards in
2003, doing away with the forms and instead instituting a
narrative recommendation of various mental health warning
signs of which all prison staff should be aware and vigilant.
Though FCM appears to have been relying on the outdated
1997 forms in 2004 when Barkes was incarcerated, NCCHC
accredited HRYCI approximately one year before Barkes’s
suicide. However, part of Appellees’ theory of liability is that




                               9
not only did FCM fail to implement the newer guidelines as
required by its contract, it failed to properly implement the
1997 NCCHC standards. Therefore, it is necessary to discuss
the 1997 NCCHC standards for suicide assessment in some
detail.
       The 1997 NCCHC guidelines provided a number of
sample intake forms covering general physical and mental
health questions.3      These included a suicide-specific
assessment form that asked questions regarding past and
current suicidal ideation, mental health treatment, and recent
emotional trauma. JA at 310. There was also a mental health
screening form that was to be filled out by the intake staff
member. The mental health form instructed the screener to
ask the inmate, in pertinent part: “Have you ever felt so bad,
so depressed, that you tried to take your own life?”; and
“Have you ever taken medication for emotional problems, for
mental illness, or for ‘nerves?’” JA at 313. The following
page of the standards provided criteria for referring an inmate
to a mental health professional based on answers given in the
mental health screening form, which stated:
      Refer an inmate to mental health staff for
      assessment if the inmate gives a “Yes” response
      to ANY question. There are no exceptions to
      this procedure.
3
 For example, the first two questions on the general intake
screening form are: “Was inmate a medical, mental health or
suicide risk during any prior contact or confinement with
department?”; and “Do you believe the inmate is a medical,
mental health or suicide risk now?” JA at 309. That form
also allows the screener to record behavioral observations
about the inmate and whether they suffer from health
problems such as heart disease or epilepsy.




                              10
       If the inmate gives an affirmative response to
       question 9,[4] make an immediate referral to
       mental health staff and make sure continuous
       “eyes on” supervision is provided until seen by
       the mental health staff.
       Remember, this screening inventory IS NOT
       your only guide for referral to mental health
       services. Even if there are all “no” answers,
       you may still refer the inmate:
           if you suspect that, in spite of the
            answers, this inmate is experiencing
            some emotional difficulties;
           if you need additional mental health
            information on an inmate prior to
            classification;
           or for reasons not listed here
JA at 314 (emphasis in original).
       The 1997 guidelines provided sample protocols to be
administered by a qualified mental health professional if the
inmate’s intake screening triggered referral. JA at 322. The
guidelines explicitly required the protocols to be administered
by a mental health professional.
       Appellees claim, however, that FCM failed to comply
with the 1997 NCCHC standards. They argue that the suicide
screening form that FCM administered corresponded to the
screening form to be used by a mental health professional, but
that FCM allowed the form to be administered by an
unqualified LPN rather than a qualified mental health

4
 Question 9 inquired whether the inmate was currently
considering killing himself.




                              11
professional, as required under NCCHC guidelines. To put it
simply, Appellees claim that, if FCM had been in compliance
with NCCHC standards, Barkes’s “yes” answer to the
question “Have you ever attempted suicide?” and his
identification of his psychiatric medication would have
triggered a referral to a mental health professional. The
professional in turn would have instituted increased suicide
prevention procedures, thus preventing Barkes’s death.
       In deposition testimony, Appellants acknowledged that
they were aware of the deteriorating quality of FCM’s
provision of medical services. Williams admitted that FCM’s
performance had degraded significantly and that he was
aware FCM may not have been fulfilling its contractual
obligations. JA at 792. He was aware of significant
backlogs, that FCM may have been intentionally short-
staffing to save money, and that inmate complaints had
increased.     JA at 792-93.       Taylor testified that his
responsibility as Commissioner of Correction was to “provide
health care delivery to the offender population comparable to
that available in the community.”         JA at 799.      He
acknowledged that in the period of 2003-2007 audits
conducted by the NCCHC had identified deficiencies in
healthcare provision in the Delaware prison system. He also
suspected that FCM was intentionally leaving positions
vacant in order to save money rather than simply having
difficulty recruiting and retaining staff. Minutes from a
meeting of the MRC on June 17, 2004, at which Williams
was present, indicate ongoing problems with the DOC’s
document management computer system, called “DACS,”
including that the medical unit at HRYCI was “not putting
information into DACS consistently for medical grievances.”
JA at 809. Talley indicated that FCM was “beyond the
borderline of not being in compliance with the contract” and




                             12
that the MRC would issue a letter of non-compliance at the
next meeting if problems with the computer system were not
resolved by then. Id. Minutes from the MRC’s August 26,
2004 meeting indicate that FCM remained non-compliant
with respect to implementing the DACS system, and that this
issue was to be brought to Taylor’s attention. In May 2005,
Taylor wrote a letter to FCM indicating that the DOC would
be terminating the contract, citing among his reasons “the
serious deficiencies in the delivery of health care outlined in
the National Commission on Correctional Health Care
(NCCHC) audit report dated February 28, 2005.” JA at 788.


                              C.
       On February 16, 2006, Appellees filed a complaint
pursuant to 42 U.S.C. § 1983 in the United States District
Court for the District of Delaware.
       Appellees asserted against Taylor and Williams an
Eighth Amendment claim based on deliberate indifference to
Barkes’s serious medical needs, an Eighth Amendment claim
based on a failure to train/wrongful customs, practices, and
policies, and a state law wrongful death claim. On February
27, 2008, the District Court granted summary judgment to
Appellants. Appellees filed an appeal, see Barkes v. First
Correctional Medical, Inc., No. 08-2280 (docketed May 7,
2008), which we dismissed per stipulation of the parties on
July 9, 2008.
      On May 21, 2008, while the first appeal was pending,
the District Court held a show cause hearing on Appellees’
motion for default judgment against FCM. At that hearing,
the Court granted the motion and granted Appellees leave to
amend. They filed a first amended complaint on June 13,
2008, which Appellants moved to strike on the basis that it




                              13
reasserted claims upon which they had already prevailed on
summary judgment. The Court granted the motion to strike
on March 30, 2009, but permitted Appellees to file a second
amended complaint against Appellants provided that it did
not assert any claims from the previous complaint. Appellees
filed a second amended complaint on April 9, 2009, which
was eventually dismissed.5 Appellees were permitted to file a
third amended complaint only to add an Eighth Amendment
failure-to-supervise claim, which was filed on April 22, 2010.
Appellants moved to dismiss the third amended complaint on
May 6, 2010, and the District Court denied the motion.
      On February 27, 2012, the parties filed cross-motions
for summary judgment. It was then that Appellants asserted



5
  It appears that the first amended complaint was filed in the
District Court before we had dismissed Appellees’ appeal,
which we dismissed while the motion to strike was pending.
In the briefing on the motion to strike, the parties discussed
the then-pending appeal only to acknowledge that it was
premature because claims remained against FCM in the
District Court. No party has raised before us now, and we
therefore do not consider, whether the District Court was
without jurisdiction to grant Appellees leave to file the first
amended complaint. See Bensalem Twp. v. Int’l Surplus
Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) (noting the
general rule that the filing of an appeal divests a district court
of jurisdiction, but with the exception that “a premature
notice of appeal does not”) (internal quotation marks and
citation omitted). If any error existed, it was mooted when
the District Court struck the first amended complaint and
granted leave to file a second amended complaint.




                                14
qualified immunity in a motion for the first time.6 The
District Court denied both motions for summary judgment,
and Appellants filed this appeal pursuant to the collateral
order doctrine.
                              II.
        The district court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to
28 U.S.C. § 1291 and the collateral order doctrine. The
collateral order doctrine allows us to review an interlocutory
order “as a ‘final decision’ if it: ‘(1) conclusively
determine[s] the disputed question, (2) resolve[s] an
important issue completely separate from the merits of the
action, and (3) [is] effectively unreviewable on appeal from a
final judgment.’” Blaylock v. City of Phila., 504 F.3d 405,
408 (3d Cir. 2007) (alterations in original) (quoting Johnson
v. Jones, 515 U.S. 304, 310 (1995)). It is well-established
6
  Though it is undisputed that Appellants raised qualified
immunity in their answer to the third amended complaint, see
JA at 210, Appellees devote a substantial portion of their brief
to a discussion of Appellants’ failure to assert the defense
until so late in this litigation. In their briefs, they do not
suggest that this is of any legal significance – that Appellants
waived the defense, for instance – but only that it is
supposedly “revelatory of [Appellants’] mindset” regarding
the merits of their qualified immunity argument. Appellees’
Br. at 22. At oral argument, counsel for Appellees went a
step further and asked that we find waiver of qualified
immunity. Because Appellants asserted qualified immunity
in their answer, waiver is inappropriate, and whether or not
they exhibit confidence in their assertion of qualified
immunity is of no relevance to this appeal. See Cetel v.
Kirwan Fin. Grp., 460 F.3d 494, 506 (3d Cir. 2006).




                              15
that orders denying qualified immunity at summary judgment
are reviewable under the collateral order doctrine “to the
extent that denial turns on questions of law.” Bayer v.
Monroe Cnty. Children and Youth Serv., 577 F.3d 186, 191
(3d Cir. 2009)); see also Wright v. City of Phila., 409 F.3d
595, 599 (3d Cir. 2005) (“Despite the interlocutory nature of
qualified immunity rulings, they are reviewable on appeal
where the dispute does not turn upon which facts the parties
might be able to prove, but, rather, whether or not certain
facts showed a violation of ‘clearly established’ law.”
(internal quotation marks and citation omitted)).
       “On an appeal from a grant or denial of summary
judgment, our review is plenary and we apply the same test
the district court should have utilized initially.” Giles v.
Kearney, 571 F.3d 318, 322 (3d Cir. 2009). A court may
grant summary judgment only when the record “shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The issue of qualified immunity is generally a
question of law, but a genuine dispute of material fact will
preclude summary judgment on qualified immunity. Giles,
571 F.3d at 326.
                            III.
                             A.
                             1.
       Before discussing the District Court’s qualified
immunity analysis, it is necessary first to consider whether
and to what extent our precedent on supervisory liability in
the Eighth Amendment context was altered by the Supreme
Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Though we have in the past declined “to wade into the
muddied waters of post-Iqbal ‘supervisory liability,’”




                             16
Bistrian v. Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012); see
also Argueta v. U.S. Immigration and Customs Enforcement,
643 F.3d 60, 69-70 (3d Cir. 2011), we find it appropriate to
do so now.
         Section 1983 provides a cause of action against “every
person who,” under color of state law, “subjects, or causes to
be subjected,” another person to a deprivation of a federally
protected right. 42 U.S.C. § 1983. It is well-recognized that
“[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory
of respondeat superior.” Bistrian, 696 F.3d at 366 (alteration
in original) (quoting Iqbal, 556 U.S. at 676). Rather, state
actors are liable only for their own unconstitutional conduct.
Id. With this principle in mind, we have previously identified
two general ways in which a supervisor-defendant may be
liable for unconstitutional acts undertaken by subordinates.
First, liability may attach if they, “with deliberate indifference
to the consequences, established and maintained a policy,
practice or custom which directly caused [the] constitutional
harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original)
(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720,
725 (3d Cir. 1989)). Second, “a supervisor may be personally
liable under § 1983 if he or she participated in violating the
plaintiff’s rights, directed others to violate them, or, as the
person in charge, had knowledge of and acquiesced” in the
subordinate’s unconstitutional conduct. Id. (citing Baker v.
Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
“Failure to” claims – failure to train, failure to discipline, or,
as is the case here, failure to supervise – are generally
considered a subcategory of policy or practice liability. See
Rosalie Berger Levinson, Who Will Supervise the
Supervisors? Establishing Liability for Failure to Train,




                               17
Supervise, or Discipline Subordinates in a Post-
Iqbal/Connick World, 47 Harv. C.R.-C.L. L. Rev. 273, 280
(2012).
        In Sample v. Diecks, we recognized that “‘supervision’
entails, among other things, training, defining expected
performance by promulgating rules or otherwise, monitoring
adherence to performance standards, and responding to
unacceptable performance whether through individualized
discipline or further rulemaking.” 885 F.2d 1099, 1116 (3d
Cir. 1989). Sample involved an Eighth Amendment claim
against a supervisor for implementing deficient policies and
being deliberately indifferent to the risk that the policies
would result in the deprivation of a constitutional right. Id.;
see also Beers-Capitol v. Whetzel, 256 F.3d 120, 133-34 (3d
Cir. 2001) (discussing Sample). We developed a four-part
test for determining whether an official may be held liable on
a claim for a failure to supervise. The plaintiff must identify
a supervisory policy or practice that the supervisor failed to
employ, and then prove that: (1) the policy or procedures in
effect at the time of the alleged injury created an
unreasonable risk of a constitutional violation; (2) the
defendant-official was aware that the policy created an
unreasonable risk; (3) the defendant was indifferent to that
risk; and (4) the constitutional injury was caused by the
failure to implement the supervisory practice or procedure.
Sample, 256 F.3d at 1118; Brown v. Muhlenberg Twp., 269
F.3d 205 (3d Cir. 2001). In this Circuit, when a plaintiff
seeks to hold a defendant liable under the Eighth Amendment
in his or her role as a supervisor, “Sample’s four-part test
provides the analytical structure . . . , it being simply the
deliberate indifference test applied to the specific situation of
a policymaker.” Whetzel, 256 F.3d at 135.




                               18
        Which brings us to Iqbal. Javaid Iqbal sued United
States Attorney General John Ashcroft and FBI Director
Robert Mueller, high-level Executive Branch officials, under
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388 (1971). In Bivens, the Court “‘recognized for the first
time an implied private action for damages against federal
officers alleged to have violated a citizen’s constitutional
rights.’” Iqbal, 556 U.S. at 675 (quoting Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 66 (2001)). Iqbal alleged that he was
unlawfully detained and subjected to harsh conditions of
confinement on the basis of his race, religion, or national
origin, as part of a purposefully discriminatory policy of
which Ashcroft was the “principal architect” and Mueller was
“instrumental” in executing. Id. at 669. Iqbal’s theory of
supervisory liability was that Ashcroft and Mueller could be
liable if they had “knowledge [of] and [had] acquiesce[ed] in
their subordinates’ use of discriminatory criteria to make
classification decisions among detainees.”        Id. at 677
(internal citation and quotation marks omitted).
        In rejecting Iqbal’s claim, the Supreme Court first
recognized that “[t]he factors necessary to establish a Bivens
violation will vary with the constitutional provision at issue.”
Id. at 676. The claim presented in Iqbal – discrimination in
violation of the First and Fifth Amendments – requires that
the plaintiff prove that the defendant acted with a
discriminatory purpose, and “purposeful discrimination
requires more than ‘intent as volition or intent as awareness
of consequences.’” Id. (quoting Personnel Adm’r of Mass. v.
Feeney, 442 U.S. 256, 279 (1979), and citing Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540-41
(1993); Washington v. Davis, 426 U.S. 229, 240 (1976)). The
Court reasoned that, because such a claim requires that the
defendant have acted “‘because of,’ not merely ‘in spite of,’




                              19
[the action’s] adverse effects upon an identifiable group,’” id.
at 676-77 (some internal quotation marks omitted) (quoting
Feeney, 442 U.S. at 279), it necessarily followed that
Ashcroft and Mueller could be held liable only if they had
“adopted and implemented the detention policies at issue . . .
for the purpose of discriminating on account of race, religion,
or national origin,” id. (emphasis added). The Court rejected
Iqbal’s argument that supervisory liability could attach based
on Ashcroft and Mueller’s knowledge of and acquiescence in
their subordinates’ unconstitutional discrimination, stating:
“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.” Id. at 677. In reaching
this conclusion, the Court expressly tied the level of intent
necessary for superintendent liability to the underlying
constitutional tort. See id. at 678 (“In the context of
determining whether there is a violation of clearly established
law to overcome qualified immunity, purpose rather than
knowledge is required to impose Bivens liability on the
subordinate for unconstitutional discrimination; the same
holds true for an official charged with violations arising from
his or her superintendent responsibilities.”).
       This aspect of Iqbal has bedeviled the Courts of
Appeals to have considered it, producing varied
interpretations of its effect on supervisory liability. The
dissenters in Iqbal believed the majority to be abolishing
supervisory liability in its entirety, 556 U.S. at 692-93
(Souter, J., dissenting), and at least one Court of Appeals
impliedly confirmed this view, albeit without much in the
way of discussion, see Carnaby v. City of Houston, 636 F.3d




                              20
183, 189 (5th Cir. 2011).7 The Ninth Circuit, on the other
hand, has suggested that under Iqbal the United States
Attorney General could be liable for knowingly “fail[ing] to
act in the light of even unauthorized abuses” of the federal
material witness statute, insofar as that statute was used as a
pretext to detain terrorism suspects despite a lack of probable
cause of a criminal violation. See al-Kidd v. Ashcroft, 580
F.3d 949, 976 (9th Cir. 2009), overruled on other grounds,
131 S. Ct. 2074 (2011) (overruling the Ninth Circuit on the
basis of qualified immunity, finding no Fourth Amendment
violation, and not reaching the supervisory liability question).
        Most courts have gravitated to the center, recognizing
that because the state of mind necessary to establish a § 1983
or Bivens claim varies with the constitutional provision at
issue, so too does the state of mind necessary to trigger
liability in a supervisory capacity. The Tenth Circuit, for
example, held that, after Iqbal, § 1983 liability may attach to
“a defendant-supervisor who creates, promulgates,
implements, or in some other way possesses responsibility for
the continued operation of a policy the enforcement (by the
defendant-supervisor or her subordinates) of which ‘subjects,
or causes to be subjected,’” the plaintiff to a constitutional
deprivation, if the supervisor “acted with the state of mind
required to establish the alleged constitutional deprivation.”

7
  In Carnaby, the Fifth Circuit affirmed a grant of summary
judgment in favor of a police officer whose alleged
supervisory failure led other officers to commit an excessive
use of force. 636 F.3d at 189. The Court cited Iqbal for the
proposition that “[u]nder § 1983 . . . a government official
can be held liable only for his own misconduct,” id. (citing
Iqbal, 556 U.S. at 692-93), but did not consider whether a
failure to supervise could in some instances be misconduct.




                              21
Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010)
(emphasis added). The Court of Appeals in Dodds reasoned
that such a standard “complies with Iqbal’s requirement that §
1983 liability only be imposed upon those defendants whose
own individual actions cause a constitutional deprivation
because it requires plaintiffs [to] prove each defendant took
some act with the constitutionally applicable state of mind
that caused the alleged constitutional violation.” Id. at 1200.
The Ninth Circuit agreed with this view in Starr v. Baca,
seeing “nothing in Iqbal indicating that the Supreme Court
intended to overturn longstanding case law on deliberate
indifference claims against supervisors in conditions of
confinement cases.” 652 F.3d 1202, 1207 (2011). See also
Whitson v. Stone County Jail, 602 F.3d 920, 922, 927-28 (8th
Cir. 2010) (holding that prison supervisors could be liable on
an Eighth Amendment claim “only if they personally
displayed deliberate indifference to the risk” of a
constitutional deprivation); Sanchez v. Pereira-Castillo, 590
F.3d 31, 49 (1st Cir. 2009) (holding, post-Iqbal, that prison
administrators could be liable in a supervisory capacity for a
Fourth Amendment violation if their “actions displayed
deliberate indifference toward the rights of third parties and
had some causal connection to the subsequent tort”) (quoting
Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999)).
       The Seventh Circuit has also indicated that the mental
state required to impose supervisory liability will vary with
the underlying constitutional tort. In T.E. v. Grindle, the
Seventh Circuit held that a school principal could be liable
under § 1983 for allowing a subordinate teacher to continue
working despite numerous allegations that the teacher was
sexually abusing his female students. 599 F.3d 583, 585-87
(7th Cir. 2010). The plaintiff alleged supervisory liability that
derived from both substantive due process and equal




                               22
protection violations. The Court recognized that Iqbal had
abrogated its prior precedent allowing plaintiffs to recover
from a supervisor who was deliberately indifferent toward a
subordinate’s purposeful discrimination, because in a
discrimination claim Iqbal requires that “a plaintiff must
show that the supervisor possessed . . . discriminatory intent.”
Id. But this was not so with respect to the substantive due
process claim, for which the Court held that “[w]hen a state
actor’s deliberate indifference deprives someone of his or her
protected liberty interest . . . , that actor violates the
Constitution, regardless of whether the actor is a supervisor or
subordinate.” Id. at 591. The Court thus recognized that the
mental state necessary for supervisory liability tracks with the
mental state required for the underlying tort. See also Vance
v. Rumsfeld, 701 F.3d 193, 204 (7th Cir. 2012) (en banc).
        We do not read Iqbal to have abolished supervisory
liability in its entirety. Rather, we agree with those courts
that have held that, under Iqbal, the level of intent necessary
to establish supervisory liability will vary with the underlying
constitutional tort alleged. In this case, the underlying tort is
the denial of adequate medical care in violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment,
and the accompanying mental state is subjective deliberate
indifference. See Farmer v. Brennan, 511 U.S. 825, 847
(1994). Iqbal held that state officials are liable only for their
own unconstitutional actions. The essence of the type of
claim we approved in Sample is that a state official, by virtue
of his or her own deliberate indifference to known
deficiencies in a government policy or procedure, has allowed
to develop an environment in which there is an unreasonable
risk that a constitutional injury will occur, and that such an
injury does occur. Liability in such a situation is, as Iqbal
requires, imposed not vicariously but based on the




                               23
supervisor’s own misconduct, because to exhibit deliberate
indifference to such a situation is a culpable mental state
under the Eighth Amendment. See Starr, 652 F.3d at 1207
(“[W]hen a supervisor is found liable based on deliberate
indifference, the supervisor is being held liable for his or her
own culpable action or inaction, not held vicariously liable
for the culpable action or inaction of his or her
subordinates.”). Accordingly, we hold that the standard we
announced in Sample for imposing supervisory liability based
on an Eighth Amendment violation is consistent with Iqbal.
We leave for another day the question whether and under
what circumstances a claim for supervisory liability derived
from a violation of a different constitutional provision
remains valid.
                                2.
       Our dissenting colleague disagrees with our conclusion
that Sample has survived Iqbal. In his view, a supervisor can
be held liable under the Eighth Amendment only if he
committed an affirmative “action[],” was “personal[ly]
involve[d] in his subordinates’ misfeasance,” and acted with
“intentional . . . deliberate indifference.” Dis. Op. at 9, 19
(internal quotation marks omitted). Our colleague claims that
his position recognizes that “there’s no special rule of liability
for supervisors” and that “the test for them is the same as the
test for everyone else.” Id. at 20 (internal quotation marks
omitted) (quoting Porro v. Barnes, 624 F.3d 1322, 1327-28
(10th Cir. 2010)). But in fact the opposite is true: his test
would immunize from liability prison officials who were
deliberately indifferent to a substantial risk that inmates’
serious medical conditions were being mistreated or not
treated at all. This would subvert the Supreme Court’s
command that any prison official who, “acting with deliberate
indifference, expose[s] a prisoner to a sufficiently substantial




                               24
risk of serious damage to his future health,” violates the
Eighth Amendment. Farmer, 511 U.S. at 844 (internal
quotation marks and citations omitted). Simply because an
official may have a senior position in the DOC does not make
him free to ignore substantial dangers to inmate health and
safety. Id. at 842; Grindle, 599 F.3d at 590 (“When a state
actor's deliberate indifference deprives someone of his or her
protected liberty interest in bodily integrity, that actor violates
the Constitution, regardless of whether the actor is a
supervisor or subordinate, and the actor may be held liable for
the resulting harm.”).
       Treating supervisors and subordinates equally under
the Eighth Amendment does not mean ignoring the different
ways in which each type of officer can, with deliberate
indifference, expose inmates to constitutional injury. We
think our dissenting colleague fails to recognize this fact, and
in doing so makes three significant analytical errors. We
address each below.
                                 i.
       First, the Dissent claims that for a supervisor to be
liable under § 1983, he must have taken a “deliberate,
intentional act . . . to violate the plaintiff’s legal rights.” Dis.
Op. at 12 (quoting Porro, 624 F.3d at 1327-28). The Dissent
draws this principle primarily from the Tenth Circuit’s
opinion in Porro, which we have cited with approval for its
discussion of the mental state required to make out a claim of
supervisory liability. But on this particular point the
Dissent’s reliance is off-base. Porro involved an allegation
of excessive force by an officer, for which the plaintiff also
sued the Sheriff (and his successor) as supervisor. 624 F.3d
at 1324-25. In affirming the district court’s grant of summary
judgment to the Sheriff, the Tenth Circuit began by




                                25
identifying the precise constitutional tort at issue: the use of
excessive force in violation of the due process clause. Id. at
1326. The court stated that for a supervisor to be liable, he
must have committed a “deliberate, intentional act.” Id. at
1327-28. Importantly, it made this statement in the context of
an excessive force claim, which meant that “the focus [was]
on the force the supervisor used or caused to be used, the
resulting injury attributable to his conduct, and the mens rea
required of him to be held liable, which can be no less than
the mens rea required of anyone else.” Id. at 1328 (emphasis
omitted). But excessive force claims are different than
conditions of confinement claims: instead of deliberate
indifference, they require a plaintiff to show that “officials
applied force ‘maliciously and sadistically for the very
purpose of causing harm,’ or . . . with ‘a knowing willingness
that [harm] occur.’” Farmer, 511 U.S. at 835-36 (quoting
Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)). Under the rule
we derive from Iqbal – that the mental state necessary for
supervisory liability will vary with the substance of the
underlying constitutional tort – it makes sense that the Tenth
Circuit would require deliberate action in that case.
       The Dissent’s position neglects the black-letter
principle that the type of Eighth Amendment claim alleged
here can be shown by an act or an omission. See Farmer, 511
U.S. at 835 (“[T]he cases are . . . clear that [the deliberate
indifference standard] is satisfied by something less than acts
or omissions for the very purpose of causing harm or with
knowledge that harm will result” (emphasis added)); Estelle
v. Gamble, 429 U.S. 97, 106 (1976) (“In order to state a
cognizable claim [under the Eighth Amendment], a prisoner
must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” (emphasis
added)). What the Dissent attempts to do is shoehorn into the




                              26
Eighth Amendment the deliberate-act requirement adopted in
our state-created-danger jurisprudence. In that context, we
have held that “[l]iability . . . [must be] predicated upon the
states’ affirmative acts which work to the plaintiff’s detriment
in terms of exposure to danger. It is the misuse of state
authority, rather than a failure to use it, that can violate the
Due Process Clause.” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 235 (3d Cir. 2008) (third alteration added; emphasis in
original) (quoting Bright v. Westmoreland Cnty., 443 F.3d
276, 282 (3d Cir. 2006)).8 The reason for this requirement is
that the Government is not generally required to “guarantee
[a] certain minimal level[] of safety and security” to its
citizens. Bright, 443 F.3d at 280 (quoting DeShaney v.
Winnebago Cnty. Soc. Servs. Dep’t., 489 U.S. 189, 195-96
(1989)).     But this principle does not apply once the
Government takes custody of the citizen and deprives him of
his liberty.
              [Our cases] stand only for the
              proposition that when the State
              takes a person into its custody and
              holds him there against his will,
              the Constitution imposes upon it a
              corresponding duty to assume
              some responsibility for his safety

       8
          The elements of a properly pleaded state-created-
danger claim are: “(1) the harm ultimately caused to the
plaintiff was foreseeable and fairly direct; (2) the state-actor
acted in willful disregard for the plaintiff’s safety; (3) there
was some relationship between the state and the plaintiff; and
(4) the state-actor used his authority to create an opportunity
for danger that otherwise would not have existed.” Phillips,
515 F.3d at 235.




                               27
              and general well-being. . . . The
              affirmative duty to protect arises
              not from the State’s knowledge of
              the individual’s predicament or
              from its expressions of intent to
              help him, but from the limitation
              which it has imposed on his
              freedom to act on his own behalf.


Id. at 280-81 (alteration in original) (quoting DeShaney, 489
U.S. at 199-200). The Dissent cites Grindle in support of its
claim that an affirmative act is required, and he is correct that
this case upheld a supervisory liability claim for substantive
due process deliberate indifference that was predicated upon
an official’s attempt to “conceal[] reports of abuse and
creat[e] an atmosphere that allowed abuse to flourish.” 599
F.3d at 590.       Certainly, an affirmative act such as
concealment of wrongdoing could satisfy the deliberate
indifference standard, but it is not necessary. Under the
Eighth Amendment, prison officials, from the bottom up, may
be liable if by act or omission they display a deliberate
indifference to a known risk of substantial harm to an
inmate’s health or safety. Farmer, 511 U.S. at 843. The
omission alleged here is the deliberately indifferent failure to
enforce FCM’s compliance with proper suicide-prevention
protocols, as required under FCM’s contract with the DOC.
As we will discuss, there is a material factual dispute on this
point.


                               ii.
      The Dissent would require both that the supervisor
“personally display[ed] deliberate indifference,” Dis. Op. at




                               28
20 (internal citation and quotation marks omitted), and that
the supervisor was “personal[ly] involve[d] in his
subordinates’ misfeasance,” id. at 9. With respect to the
former observation, we agree, which is why our decision
requires subjective deliberate indifference on the part of the
offending officer. See Part III.A.1, supra. With respect to the
latter, the Dissent misinterprets the rules for Eighth
Amendment liability under Farmer.
       The Dissent asserts that, by affirming Sample’s vitality
post-Iqbal, our decision wrongly applies an objective, rather
than a subjective, test for evaluating deliberate indifference,
in contravention of Farmer. This criticism is unpersuasive
for two reasons. First, the premise upon which the Dissent’s
argument rests – that “Sample’s objective quality is patent,”
see Dis. Op. at 19 – is far from clear. Sample expressly
constructed its test for deliberate indifference around what the
officer knew and how the officer reacted to that knowledge.
Sample, 885 F.2d at 1118 (asking whether the officer “was
aware that this unreasonable risk existed” and whether that
officer “was indifferent to that risk” (emphasis added)). This
is clearly a subjective test as required by Farmer, a
conclusion bolstered by our recitation of the Sample test in
Brown, a case that post-dates Farmer and yet approves
Sample. See Brown, 269 F.3d at 216. Far from being patently
objective, Sample’s test is explicitly concerned with the
officer’s subjective knowledge.
       The origin of the Dissent’s discontent may be
Sample’s reference to City of Canton v. Harris, 489 U.S. 378
(1989). In City of Canton, the Supreme Court held that a
municipality “can be liable for failure to train its employees
when the municipality’s failure shows ‘a deliberate
indifference to the rights of its inhabitants.’” Farmer, 511
U.S. at 840 (quoting City of Canton, 489 U.S. at 389). In




                              29
Farmer, the Court stated that City of Canton, which allowed
liability to attach based on “obviousness or constructive
notice,” created an objective test for deliberate indifference
that was inappropriate in the Eighth Amendment context.
Farmer, 511 U.S. at 841. To be sure, Sample stated that it
derived its test “[b]ased on City of Canton,” 885 F.2d at 1118,
but the actual test that it articulated clearly sounds in
subjectivity.
        The Dissent cites a passage of Sample in which we
said that “there are situations in which the risk of
constitutionally cognizable harm is so great and so obvious
that the risk and the failure of supervisory officials to respond
will alone support findings of the existence of an
unreasonable risk, of knowledge of that unreasonable risk,
and of indifference to it.” 885 F.2d at 1118; Dis. Op. at 19.
In fairness to our colleague, one could read this as suggesting
that an objective test might be applicable in situations where
evidence of the officer’s knowledge and intent was absent.
But one could also read this statement as recognizing that the
requisite mental state can be proved by circumstantial
evidence. Cf. Farmer, 511 U.S. at 842 (“Whether a prison
official had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence, and a
factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.”
(emphasis added)).
       At any rate, this brings us to the second reason that the
Dissent’s objection fails: the test that we derive from Sample
and apply in this case cannot be described as anything but
subjective, and is thus entirely consistent with Farmer.
Moreover, the Dissent’s statement that the District Court has
already determined that “‘a reasonable factfinder could not




                               30
determine that Defendants were deliberately indifferent to the
risk of suicide,’” Dis. Op. at 18 (quoting JA at 15), is a red
herring because that determination was made in reference to
Count I of the third amended complaint, which alleged that
Appellants were deliberately indifferent to Barkes’s serious
medical needs as an individual. That is a very different claim
than the supervisory liability claim contained in Count V and
that we are allowing to proceed. To the extent that Sample
approved, in some circumstances, an objective test for
determining a prison official’s Eighth Amendment deliberate
indifference, that portion of Sample has been abrogated by
Farmer and it is not the test we apply today.
        Recognizing that our test does, in fact, require an
official’s subjective deliberate indifference, the Dissent pivots
and claims that the plaintiff must nonetheless plead that the
supervisor was “personal[ly] involve[d] in his subordinates’
misfeasance.” Dis. Op. at 9. The Dissent’s rule would have
the practical effect of requiring that a supervisor have
personal knowledge of an individual inmate, that inmate’s
particular serious medical need, and of the prison staff’s
failure to treat that need, before the supervisor could ever be
held liable for deliberate indifference. But Farmer itself
recognized that a prison official cannot avoid liability under
the Eighth Amendment simply “by showing that, while he
was aware of an obvious, substantial risk to inmate safety, he
did not know that the complainant was especially likely to”
suffer a constitutional injury. 511 U.S. at 843.
              The question under the Eighth
              Amendment is whether prison
              officials, acting with deliberate
              indifference, exposed a prisoner
              to a sufficiently substantial “risk
              of serious damage to his future




                               31
             health,” and it does not matter
             whether the risk comes from a
             single source or multiple sources,
             any more than it matters whether
             a prisoner faces an excessive risk
             of attack for reasons personal to
             him or because all prisoners in his
             situation face such a risk. If, for
             example, prison officials were
             aware that inmate “rape was so
             common and uncontrolled that
             some potential victims dared not
             sleep [but] instead . . . would
             leave their beds and spend the
             night clinging to the bars nearest
             the guards’ station,” it would
             obviously be irrelevant to liability
             that the officials could not guess
             beforehand precisely who would
             attack whom.
Id. at 843-44 (internal citations omitted) (quoting Helling v.
McKinney, 509 U.S. 25, 33, 35 (1993); Hutto v. Finley, 437
U.S. 678, 681-82 n.3 (1978)). A high-ranking prison official
can expose an inmate to danger by failing to correct serious
known deficiencies in the provision of medical care to the
inmate population.       That the official had no specific
knowledge of any particular inmate or the failure of
subordinate officials to treat that inmate’s serious medical
condition is irrelevant.
       The Dissent suggests that Nelson v. Correctional
Medical Services, 583 F.3d 522 (8th Cir. 2009) (en banc),
contradicts our analysis, but in fact that case supports our
position. There, an inmate sued a guard and a prison director




                             32
under the Eighth Amendment because her legs had been
shackled during labor, causing her injury. Id. at 525-27. She
alleged that the prison director had violated her rights “by
failing to ensure that proper policies and customs were
implemented with respect to the restraint of female inmates in
labor.” Id. at 534-35. The Eighth Circuit stated that the
director could be liable “if he personally displayed deliberate
indifference to the hazards and pain resulting from shackling
an inmate such as [the plaintiff] during the final stages of
labor.”9 Id. (emphasis added) (citing Farmer, 511 U.S. at
842). The court then engaged in a lengthy analysis of the
policies and procedures in place at the time, and concluded
that they “suggest[ed] administrative concern for the health
and safety of pregnant inmates.” Id. at 536. Under the Eighth
Circuit’s analysis, the outcome would have been different had
the policies and procedures in place been constitutionally
inadequate and had there been evidence of the prison
director’s deliberate indifference to that fact. Nelson’s
analysis also suggests that the director could have been held
liable if, notwithstanding the adequacy of the policies, he had
been deliberately indifferent to a widespread failure to
properly implement the policies. See id. at 536 (recognizing
the adequacy of the policies and stating that “[w]ithout
further allegation or evidence of deliberate indifference,” the
Eighth Amendment claim must fail (emphasis added)). The
latter situation is analogous to that before us today.


       9
          Contrary to the Dissent’s implication, see Dis. Op. at
13, the prison director’s lack of personal knowledge of the
plaintiff and his absence at her delivery were merely
undisputed facts in the case. Nelson, 583 F.3d at 535. No
part of the court’s analysis turned on these facts.




                               33
       What the Dissent fundamentally fails to recognize is
that there are different ways that prison officials can be
responsible for causing an inmate harm. Dissenting in Vance,
Judge Hamilton adroitly provided the following hypothetical:
              “[S]uppose . . . that a local police
              chief or even the FBI director
              issued a policy that authorized the
              use of deadly force against any
              fleeing subject. The policy itself
              would be unconstitutional under
              Tennessee v. Garner[, 471 U.S. 1
              (1985)]. The chief or director who
              authorized that unconstitutional
              use of force could certainly be
              held personally responsible under
              section 1983 or Bivens to a person
              shot by an officer following the
              policy.

Vance, 701 F.3d at 223 (Hamilton, J., dissenting). No less
here, where there is evidence of serious inadequacies in the
provision of adequate medical care for inmates, and there is
evidence that prison officials were aware of the problem and
yet indifferent to the risk that an inmate would suffer a
constitutional injury, they can be held liable under § 1983 for
violating the Eighth Amendment
                              iii.
        Our final point of disagreement with the Dissent is in
his articulation of the deliberate indifference standard itself.
The Dissent claims that we err in failing to apply an
“intentional version of deliberate indifference.” Dis. Op. at




                              34
19. But his formulation of deliberate indifference is entirely
inconsistent with Supreme Court precedent.
       We derive the test for establishing Eighth Amendment
deliberate indifference from Sample and from the Supreme
Court’s decision in Farmer. While the Dissent is correct that
Appellees do not allege that Appellants took an intentional act
to cause inadequate medical care for inmates, this is a straw-
man argument because under Farmer they are not required to
make that allegation. Farmer stated that although “deliberate
indifference entails something more than mere negligence,
the cases are also clear that it is satisfied by something less
than acts or omissions for the very purpose of causing harm
or with knowledge that harm will result.” 511 U.S. at 835.
Deliberate indifference falls “somewhere between the poles
of negligence at one end and purpose or knowledge at the
other.” Id. at 836. “[A]n Eighth Amendment claimant need
not show that a prison official acted or failed to act believing
that harm actually would befall an inmate; it is enough that
the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.” As we will discuss infra,
there remains a genuine dispute of material fact over whether




                              35
Appellants displayed deliberate indifference under this
standard.10
                               B.
        “Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012). The qualified immunity analysis is thus
composed of two constituent questions: first, whether the
plaintiff suffered a deprivation of a constitutional or statutory
right; and second, if so, whether that right was “clearly
established” at the time of the alleged misconduct. If the
answer to either question is “no,” qualified immunity applies.
       10
          The Dissent draws its “intentional” deliberate
indifference test from Vance. Vance stated, in discussing
supervisory liability post-Iqbal, that “[d]eliberate indifference
to a known risk is a form of intent,” but that in order “to show
scienter by the deliberate-indifference route, a plaintiff must
demonstrate that the public official knew of risks with
sufficient specificity to allow an inference that inaction is
designed to produce or allow harm.” 701 F.3d at 204. We
think Vance is distinguishable because that case did not
consider an Eighth Amendment claim. Before reaching the
question of supervisory liability, the Seventh Circuit
considered whether it would recognize a new Bivens remedy
against military personnel who mistreat detainees in violation
of the Detainee Treatment Act, 10 U.S.C. § 801 note and 42
U.S.C. §§ 2000dd to 2000dd-1, and potentially one or more
treaties. 702 F.3d at 198. The allegation involved violation
of a federal statutory right rather than the Eighth Amendment,
and so the mental state need not have matched that which we
apply today.




                               36
Id. Deciding which question to address first is within the
Court’s sound discretion. Pearson v. Callahan, 555 U.S. 223,
236 (2009).
                                1.
       A right is “clearly established” if, at the time of the
alleged deprivation, “‘[t]he contours of [the] right [are]
sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’” al-
Kidd, 131 S. Ct. at 2083 (second alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Crucial to the “clearly established” inquiry is the level of
generality at which the right is defined. A constitutional right
is not “clearly established simply because of the existence of
a broad imperative like the one against ‘unreasonable . . .
seizures,’” Schneyder v. Smith, 653 F.3d 313, 329 (3d Cir.
2011), but nor must there be “a case directly on point [if]
existing precedent . . . [has] placed the statutory or
constitutional question beyond debate,” al-Kidd, 131 S. Ct. at
2083 (citing Anderson, 483 U.S. at 640). Rather, the asserted
right must be sufficiently bounded that it gives “practical
guidance” to officials on the ground. See John C. Jeffries, Jr.,
What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851,
854 (2010). Put another way, the right asserted cannot be so
abstract that any transgression violates a clearly established
right, thereby evaporating “the balance . . . between the
interests in vindication of citizens’ constitutional rights and in
public officials’ effective performance of their duties.”
Anderson, 483 U.S. at 639 (internal quotation marks omitted)
(quoting Davis v. Scherer, 468 U.S. 183, 195 (1984)). The
“ultimate question” in the qualified immunity analysis “is
whether the defendant had ‘“fair warning” that his conduct
deprived his victim of a constitutional right.’” Schneyder,




                               37
653 F.3d at 329 (quoting Hope v. Pelzer, 536 U.S. 730, 740
(2002)).
        The “clearly established” game is won or lost on how
broadly or narrowly one defines the right at issue. Appellants
attempt to atomize the asserted right into oblivion by defining
it narrowly as an inmate’s right to “supervision of the medical
vendor by the prison administrators,” for which they assert
that “[t]here is no case law establishing that a government
entity is responsible for monitoring a medical provider under
Section 1983.” Appellants’ Br. at 19. There are two
problems with this characterization. First, its myopia runs
directly contrary to the Supreme Court’s oft-repeated
admonition that “a case directly on point” is not required for a
right to be clearly established. See al-Kidd, 131 S. Ct. at
2083.      Second, this argument hinges entirely on the
outsourcing of prison medical care to a private, third-party
provider. Appellants do not argue that they have no
responsibility to supervise state-employed correctional staff
such as guards, or that they would have no responsibility to
supervise the medical staff were it composed of state
employees rather than private contractors. Rather, their
argument depends entirely on the Court finding that there is a
difference of constitutional import between the two. No
reasonable prison administrator could believe that hiring a
private contractor to provide a constitutionally required
service would allow them to abdicate their constitutional
supervisory duties. Yet, culled to its essence, that is
Appellants’ argument.
       Even if we were to accept the manner in which
Appellants would particularize the asserted right, they have
nonetheless failed to show a lack of clarity in the law. They
rely on our decision in Spruill v. Gillis, in which an inmate in
a Pennsylvania prison brought a § 1983 claim against, among




                              38
other individuals, the Unit Manager of the Restricted Housing
Unit, alleging that as a result of his deliberate indifference the
plaintiff was injured by an untreated or inadequately treated
back problem. 372 F.3d 218, 222 (3d Cir. 2004). In
affirming dismissal of the complaint against the non-medical
official for failure to state a claim, we held:
       If a prisoner is under the care of medical experts
       . . . , a non-medical prison official will generally
       be justified in believing that the prisoner is in
       capable hands. This follows naturally from the
       division of labor within a prison. Inmate health
       and safety is promoted by dividing
       responsibility for various aspects of inmate life
       among guards, administrators, physicians, and
       so on. Holding a non-medical prison official
       liable in a case where a prisoner was under a
       physician’s care would strain this division of
       labor. Moreover, under such a regime, non-
       medical officials could even have a perverse
       incentive      not     to    delegate      treatment
       responsibility to the very physicians most likely
       to be able to help prisoners, for fear of vicarious
       liability.
Id. at 236.
       Appellants rely on this language to argue that, at the
time of Barkes’s suicide, it was not clearly established that
they, as non-medical prison administrators, had a
constitutional supervisory duty over the medical staff. But in
the very next line of Spruill we stated that “absent a reason to
believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner, a non-
medical prison official . . . will not be chargeable with the




                               39
Eighth Amendment scienter requirement of deliberate
indifference.” Id. Dismissal was proper in Spruill because
the plaintiff had failed to plead facts suggesting that the
official was aware of the alleged inadequacies in medical
care, not because prison administrators are categorically
exempt from a supervisory role over medical personnel. Id.
at 236-37 & n.12. And moreover, there is nothing in Spruill
supporting Appellants’ contention that there is a difference of
constitutional import between state-employed and privately
contracted medical staff. Appellants’ argument that the law
was hazy with respect to their supervisory duty over prison
medical staff is thus belied by the very case upon which they
rely. See Appellants’ Br. at 20 (conceding that Spruill was
“[t]he clearly established” law at the pertinent time).11
       With that said, we think that the right Appellees assert,
properly defined, is this: an incarcerated person’s right to the
proper implementation of adequate suicide prevention
protocols.12 This right is clearly established in our case law,
and was so at the time of Barkes’s suicide. It is beyond

11
   The Dissent asserts that we have not “address[ed] Taylor
and Williams’s argument that there is no clearly established
right to supervision over those charged with implementing
suicide prevention protocols.” Dis. Op. at 24-25. This is a
puzzling disagreement because, as previously demonstrated,
we have discussed and rejected their attempt to characterize
the right in such a manner, and noted that, even were we to
accept it, Spruill forecloses their argument.
12
   The District Court defined the pertinent right as Barkes’s
“constitutional right to adequate medical care.” JA at 21.
While we agree with the District Court’s ultimate ruling on
qualified immunity, we think that this characterization fails to
sufficiently particularize the asserted right.




                              40
dispute that the cruel and unusual punishments clause of the
Eighth Amendment, incorporated by virtue of the Fourteenth,
obliges the States to provide adequate medical care for the
incarcerated. See Estelle, 429 U.S. at 104. This is so because
“[p]risoners retain the essence of human dignity inherent in
all persons.” Brown v. Plata, 131 S. Ct. 1910, 1928 (2011).
Prisoners, because of their incarceration, have lost the means
to provide for themselves, and therefore the prisons that
house them are constitutionally bound to provide sustenance
and adequate physical and mental health care. Id.
        At the time of Barkes’s suicide, we had long
recognized that an inmate’s “particular vulnerability to
suicide” is a serious medical need that prison officials may
not recklessly disregard. Colburn v. Upper Darby Twp., 838
F.2d 663, 669 (3d Cir. 1988) (Colburn I), abrogated on other
grounds by Leatherman v. Tarrant Cnty. Narcotics
Intelligence and Coordination Unit, 507 U.S. 163 (1993). In
Colburn I, we examined for the first time whether a prisoner’s
suicide can give rise to liability under § 1983. We began by
examining cases in which the plaintiff was the victim of
violence by persons other than the defendant-officials, and
drew from that precedent the conclusion that “where prison
officials infringed a liberty interest by intentional conduct,
gross negligence, or reckless indifference, or an established
state procedure, the matter is actionable under section 1983.”
Id. at 667-68 (citing Commonwealth Bank & Trust Co. v.
Russell, 825 F.2d 12 (3d Cir. 1987); Davidson v. O’Lone, 752
F.2d 817 (3d Cir. 1984) (en banc), aff’d sub nom. Davidson v.
Cannon, 474 U.S. 344 (1986)). We saw “no reason not to
apply a similar construction of section 1983 when the acts
causing the injury are those of the prisoner herself.” Id. at
668.
        We drew additional guidance from the Supreme




                             41
Court’s decision in Hudson v. Palmer, 468 U.S. 517 (1984).
See Colburn I, 838 F.2d at 668-69. In Hudson, the Supreme
Court approved of searches of inmates and their cells to
discover contraband in order to not only prevent violence
against correctional staff and other prisoners but also to
prevent suicides. Hudson, 468 U.S. at 526 (recognizing that
suicide was a significant concern in correctional institutions).
Finding particular significance in “the [Hudson] Court’s
statement that prison administrators ‘are under an obligation
to take reasonable measures to guarantee the safety of the
inmates themselves,’” Colburn I, 838 F.2d at 668 (quoting
Hudson, 468 U.S. at 526), we held that when custodial
officials “know or should know of the particular vulnerability
to suicide of an inmate, then the Fourteenth Amendment
imposes on them an obligation not to act with reckless
indifference to that vulnerability,” id. at 669.13




13
   We also relied on the Fifth Circuit’s decision in Partridge
v. Two Unknown Police Officers, 791 F.2d 1182 (5th Cir.
1986). Partridge was one of the first cases to extend the
analysis of Estelle to prison suicide cases. Writing for the
Court, Judge Wisdom observed:




                              42
       We further elucidated this issue in Colburn v. Upper
Darby Township, 946 F.2d 1017 (3d Cir. 1991) (Colburn II).
In Colburn II, we explained that one of the principal
“theoretical underpinnings” in Colburn I was the Supreme
Court’s ruling in Estelle, which established that prison
administrators “violate the Eighth Amendment’s proscription
of cruel and unusual punishment when they exhibit
‘deliberate indifference to serious medical needs of
prisoners.’” Id. at 1023 (quoting Estelle, 429 U.S. at 104)).
We reemphasized in Colburn II that a “particular
vulnerability to suicide” is a serious medical need
encompassed within the rule of Estelle.         Id.   (citing




       [The due process clause imposed on the
       custodial officials] a duty, at a minimum, not to
       be deliberately indifferent to Partridge's serious
       medical needs. A serious medical need may
       exist for psychological or psychiatric treatment,
       just as it may exist for physical ills. A
       psychological or psychiatric condition can be as
       serious as any physical pathology or injury,
       especially when it results in suicidal tendencies.
       And just as a failure to act to save a detainee
       from suffering from gangrene might violate the
       duty to provide reasonable medical care absent
       an intervening legitimate government objective,
       failure to take any steps to save a suicidal
       detainee from injuring himself may also
       constitute a due process violation . . . .

Id. at 1187 (quoted in Colburn I, 838 F.2d at 669).




                              43
Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326
(3d Cir. 1987)).14
       This body of precedent places it “beyond debate,” al-
Kidd, 131 S. Ct. at 2083, that appropriate suicide-preventive
measures are a required component of the Constitution’s
command that prison administrators provide adequate mental
and physical health care for inmates. Our decision in Spruill
gives “fair warning,” Schneyder, 653 F.3d at 329, that non-
medical prison officials may “be chargeable with the Eighth
Amendment scienter requirement of deliberate indifference”
when they possess actual knowledge or have reason to believe
that prison medical staff are mistreating or failing to treat
inmates’ serious medical conditions. Spruill, 372 F.3d at 236.
Accordingly, we hold that the right Appellees assert – an
incarcerated person’s right to the proper implementation of




14
   We note that the District Court cited Woloszyn v. County of
Lawrence, 396 F.3d 314, 319 (3d Cir. 2005), in support of its
holding that Barkes had alleged the violation of a clearly
established right. See JA at 19 n.5. We reiterated in
Woloszyn that a vulnerability to suicide is a serious medical
need. 396 F.3d at 319-20. However, Woloszyn post-dates
Barkes’ 2004 death, and accordingly is not relevant for
purposes of determining the state of the law at the pertinent
time. See Leveto v. Lapina, 258 F.3d 156, 162 (3d Cir. 2001)
(“‘[I]n the light of pre-existing law the unlawfulness must be
apparent’” (quoting Anderson, 483 U.S. at 640)).
Nonetheless, as we discuss above, our decisional law in place
at the time of Barkes’ death suffices to meet the clearly
established inquiry.




                              44
adequate suicide prevention protocols – was clearly
established at the time of Barkes’s suicide.15
                               2.
        The first prong of the qualified immunity analysis
(though we address it second here) asks whether the plaintiff
suffered a deprivation of a constitutional or statutory right. A
finding of qualified immunity grants immunity not only from
liability, but from the burdens of litigation itself. We have
recognized that “‘the determination of qualified immunity
must be made at an early stage in the litigation’” – often in a
pre-answer motion to dismiss. See Ball v. Famiglio, 726 F.3d
448, 461 (3d Cir. 2013) (quoting Vaughn v. U.S. Small Bus.
Admin., 65 F.3d 1322, 1326 (6th Cir. 1995)). We thus often
analyze qualified immunity without the benefit of a factual
record. However, in this case Appellants asserted qualified
immunity in a motion for summary judgment. While “[t]he
issue of qualified immunity is generally a question of law, . . .
a genuine issue of material fact will preclude summary
judgment on qualified immunity.” Giles, 571 F.3d at 326
(citing Deary v. Three Un-Named Police Officers, 746 F.2d
15
   The Dissent makes one final objection to this analysis,
claiming that by defining the right to include the “proper
implementation” of suicide prevention protocols we have
“plainly violate[d] the basic proposition that the Eighth
Amendment does not impose liability for negligence.” Dis.
Op. at 26. We have not. Nothing in our definition of the
right at issue – or in our opinion more broadly – remotely
suggests that a mere negligent failure to properly implement
suicide prevention protocols would be sufficient to trigger
liability. A recklessly indifferent failure to properly
implement such protocols, however, may very well trigger
Eighth Amendment liability.




                               45
185, 192 (3d Cir. 1984)). Based upon our review of the
summary judgment record, we find that there exist genuine
disputes of material fact that preclude a finding of qualified
immunity for Appellants.
       As we noted previously, Sample’s four-part test
provides the rubric for evaluating whether supervisors are
liable under § 1983 for deliberate indifference. See Whetzel,
256 F.3d at 134-35. To hold a supervisor liable for such an
Eighth Amendment violation, the plaintiff must identify a
supervisory policy or procedure that the supervisor defendant
failed to implement, and prove that: (1) the policy or
procedures in effect at the time of the alleged injury created
an unreasonable risk of a constitutional violation; (2) the
defendant-official was aware that the policy created an
unreasonable risk; (3) the defendant was indifferent to that
risk; and (4) the constitutional injury was caused by the
failure to implement the supervisory procedure. Brown, 269
F.3d at 216 (discussing Sample). The District Court found
that disputed factual issues existed as to each of these four
elements. We agree with its analysis.
       Appellees claim that Taylor and Williams should have
enforced FCM’s compliance with their contractual
obligations, specifically by requiring FCM to adhere to up-to-
date NCCHC standards, by properly administering the
standards to which they adhered, and by requiring mental
health screenings to have been conducted by a qualified
mental health professional rather than an unqualified LPN,




                             46
thus satisfying Sample’s threshold requirement.16 Record
evidence indicates a material factual dispute as to whether
FCM’s suicide prevention procedures, coupled with DOC’s
supervision of FCM (or lack thereof), created an unreasonable
risk of a constitutional violation. First, there is evidence that
FCM’s suicide prevention screening practices were not in

       16
          In Count V of the third amended complaint,
Appellees alleged that Taylor and Williams “failed to
supervise and/or monitor the activities of FCM . . . including,
but not limited to, the failure to insure the proper evaluation
of [Barkes’s] psychological condition in light of his responses
to intake inquiries advising of his prior suicide attempt, and
the failure to insure that appropriate suicide-prevention
observation of and/or restrictions upon Mr. Barkes occurred
in the period prior to an evaluation by a fully qualified
medical provider.” JA at 170. They further alleged that “the
intake form filled out by Mr. Barkes indicated a previous
suicide attempt in December of 2003, and the presence of
psychological problems and indications of his usage of
psychotropic medication, yet he was not placed under
heightened surveillance,” and that “the intake form, after
having been filled out by Mr. Barkes, was reviewed only by
an FCM licensed practical nurse prior to the assignment of
Mr. Barkes to a virtually unsupervised booking and receiving
area,” and that “the intake form on which so much reliance
was placed by the DOC and FCM had been removed by the
NCCHC from its 2003 ‘Standards for Health Services in
Prisons’ because the NCCHC had found that prison
administrators were relying too heavily on such forms instead
of implementing the procedures described and recommended
in the text of the ‘Standards for Health Services in Prisons.’”
JA at 171.




                               47
compliance with NCCHC standards, as required by their
contract with the DOC, insofar as FCM was relying on out-
of-date NCCHC guidelines and failed even to properly
implement the standards upon which it was relying.
Specifically, the intake form administered to Barkes was
designed to be used by a qualified mental health professional,
but instead was administered by an unqualified LPN.
Appellees claim that, had the proper procedures been
followed, Barkes’s answer regarding a previous suicide
attempt and his use of certain medications would have
triggered a referral to a mental health professional. While the
NCCHC apparently accredited HRYCI about one year before
Barkes’s death, that is simply one fact among many that the
factfinder will have to consider. Second, the evidence also
suggests that FCM lacked access to Barkes’s probation
records, and that if they had such access they would have
been aware of his lengthy history of mental health problems
and suicide attempts, and may have placed Barkes under
heightened suicide prevention measures. Third, there is
evidence that FCM was intentionally short-staffing to drive
up profits. Fourth, evidence suggests that DOC’s dilatory
manner of supervision allowed FCM’s provision of services
to degrade. Joyce Talley, the DOC official tasked with
ensuring FCM’s compliance with the contract, did not assess
FCM’s provision of medical care to the inmates,17 claimed

17
  See, e.g., JA at 367 (“Q: Did you make any assessments of
the job they [FCM] were doing providing medical care for the
inmates? A: I personally did not, no.”); id. (“Going back to
my question regarding the assessment of the services
provided by the independent vendor FCM, was there anyone
from the Department of Correction who made any such
assessment? A: There was no one that had the knowledge or




                              48
that it was not her responsibility to ensure FCM’s compliance
with NCCHC standards, and stated that she largely relied on
FCM to police itself.18 Based on the record before us, a
reasonable jury could find that FCM’s policies and
procedures in place at the time of Barkes’s suicide created an
unreasonable risk of a constitutional deprivation and that
Appellants’ manner of supervising FCM further exacerbated
the risk.
        Appellants stated in deposition testimony that they
knew that the quality of FCM’s provision of medical services
was degrading, with both Appellants acknowledging
awareness of intentional short-staffing and Williams
acknowledging awareness of FCM’s contractual non-
compliance with respect to implementing the document
management computer system. Taylor’s termination letter to
FCM indicates his awareness of FCM’s gross contractual
non-compliance. A reasonable juror could draw from that
evidence the conclusion that Appellants were aware of an
unreasonable risk that FCM’s declining performance would
result in a failure to treat or a mistreatment of an inmate’s
serious medical condition. A reasonable juror could also
conclude that, by failing to enforce FCM’s compliance with
NCCHC standards as required by their contract, Appellants

the background within the department that could actually go
out to see if the medical care was provided.”).
18
   See JA at 366-67 (“Q: As in the other responsibilities, did
you have any type of key managers? A: Within the medical?
Q: Yes. A: No. It was – no. Q: How is it that you managed
the health care issues for inmates? A: That would be working
with the
contracted vendor and through the MRC, the Medical Review
Committee.”).




                             49
were deliberately indifferent to the risk that FCM’s flagging
quality would result in a violation of an inmate’s
constitutional rights.
       Finally, a reasonable juror could find that Barkes’s
suicide was caused by Appellants’ failures to supervise.
Despite Barkes’s extensive history of mental health problems
and multiple suicide attempts (including one at the very
prison where he was being held, and two a mere 65 days
before his death), the LPN who performed his intake did not
place him on even the lowest level of suicide watch. In
Appellees’ view, had Appellants properly supervised FCM
and ensured compliance with the contract, Barkes’s answers
during his screening would have resulted in additional
preventive measures being taken. Of course, it is also true
that Barkes did not self-report feelings of suicidal ideation,
nor did he exhibit any outward signs of suicidality. But this
serves only to highlight the factual nature of this dispute,
which neither we nor the District Court on summary
judgment are in the position to resolve.
       Based on our review of the summary judgment record,
we conclude that there remain sufficient factual disputes to
preclude a finding that Appellants are entitled to qualified
immunity.
                             IV.
       For the reasons that we have discussed, Appellants are
not entitled to qualified immunity. Accordingly, we will
affirm the District Court’s order and remand for trial.




                             50
Karen Barkes, et al. v. First Correctional Medical Inc., et al.
No. 12-3074

HARDIMAN, Circuit Judge.

        Today the Court holds that two of the most senior
executives in the Delaware prison system must stand trial for
the suicide of Christopher Barkes. In my view, this decision is
a classic case of holding supervisors vicariously liable, a
practice the Supreme Court proscribed in Ashcroft v. Iqbal,
556 U.S. 662 (2009). The majority accomplishes this feat by
attempting to salvage the supervisory liability doctrine we
created twenty years before Iqbal in Sample v. Diecks, 885
F.2d 1099 (3d Cir. 1989). As I shall explain, Sample has been
abrogated by Iqbal. And even assuming I am wrong about
Sample’s abrogation, Defendants Taylor and Williams are
still entitled to summary judgment because Barkes has not
complied with Sample’s requirement that she identify a
specific supervisory practice or procedure that they failed to
employ. I respectfully dissent.

                               I

       Christopher Barkes arrived at the HRYCI around 2:45
p.m. on Saturday, November 13, 2004, following his arrest by
Wilmington Police for a probation violation. Normally,
Barkes would have been taken promptly to the Violation of
Probation Center in Sussex County. Because it was the
weekend, however, the HRYCI held him as a courtesy
because the DOC’s transportation department ran only on
weekdays. The HRYCI booked and processed Barkes as it
would any other inmate, but did not admit him; rather, it held
him in the booking and receiving area.
        As part of Barkes’s intake, the DOC’s medical services
contractor, First Correctional Medical, Inc. (FCM), conducted
a standard medical screening. In doing so, FCM gathered
Barkes’s medical history and checked his vitals and physical
health. FCM also administered a mental health screening
intended to, inter alia, prevent suicides. FCM’s suicide
prevention screening test listed seventeen risk factors. Some
of those factors automatically triggered suicide protection
measures. For example, if an inmate appeared to be under the
influence of alcohol or drugs and showed signs of withdrawal
or mental illness, FCM would immediately initiate its suicide-
prevention protocols and notify a physician. Otherwise, FCM
initiated its protocols if the inmate’s screening noted eight or
more of the seventeen risk factors.1

       A licensed practical nurse employed by FCM
conducted Barkes’s medical screening about fifteen minutes
after his arrival. At that time, he did not appear depressed,
anxious, afraid, or angry, and the arresting officers did not
believe Barkes was a suicide risk. Barkes told the nurse that
he was not thinking about killing himself. Barkes did admit to
a prior suicide attempt in 2003, but he failed to disclose three
other suicide attempts, one of which was just two months

       1
         FCM modeled its suicide prevention screening form
on a sample appended to the National Commission on
Correctional Health Care’s (NCCHC) 1997 standards for
prison health services. In 2003, the NCCHC published a new
edition of its manual, but FCM continued using its form
modeled on the 1997 manual. One year before Barkes’s
suicide, the NCCHC accredited the HRYCI after reviewing
FCM’s suicide prevention screening form.




                               2
prior to his booking at HRYCI. Based on Barkes’s responses
during the screening, only two of the seventeen suicide risk
factors were indicated: a psychiatric history and a suicide
attempt.

       The HRYCI correctional staff monitored Barkes
throughout Saturday night and Sunday morning. Officers
delivered Barkes his breakfast at 8:00 a.m. He was lying
awake on his bed when officers observed him at 10:45 a.m.,
10:50 a.m., and 11:00 a.m. Sometime between 11:00 a.m. and
11:35 a.m. when they next checked on him, Barkes hanged
himself. Officers immediately called FCM staff, who
attempted to resuscitate Barkes.

        None of the officers watching Barkes noticed anything
unusual about him. 2 The only sign that he had been
contemplating suicide came in a phone call Barkes made to
his wife the night before his death, in which he told her: “I
can’t live this way anymore.” Although Barkes’s wife
testified that she interpreted this comment as a suicidal threat,
she did not advise anyone at the HRYCI of this comment or
otherwise alert them that her husband was in distress.

                               II

      The claim at issue—that Barkes was subjected to cruel
and unusual punishment in violation of the Eighth
Amendment—is premised on the provision of constitutionally
inadequate medical care by FCM. Specifically, Barkes

       2
        Those same officers were not blind to inmates who
turned suicidal. In fact, earlier on the same morning that
Barkes died, they transferred a different inmate to the
infirmary for suicide prevention.




                               3
challenges the adequacy of the supervision of FCM’s medical
staff at the HRYCI. Dr. Tammy Kastre, the President and
CEO of FCM, supervised FCM’s medical staff at all of
Delaware’s correctional facilities. The DOC’s Bureau of
Management Services supervised FCM and Dr. Kastre. The
head of that bureau, Joyce Talley, was the DOC’s liaison to
FCM. 3 Talley tasked her deputy chief, Kathy English, with
some of the FCM oversight responsibilities. The formal
responsibility for oversight over FCM’s compliance with its
contract lay with the DOC’s Medical Review Committee,
which Talley chaired and English co-chaired. Every month,
the nine-member committee met with around four FCM
representatives. The committee reviewed certain performance
measures based on NCCHC standards, such as how long it
took FCM to administer its health screening after new
inmates were admitted. The committee also reviewed random
chart audits. If the DOC had any concerns with FCM’s
services, it raised them in those meetings.

       It is important to note that the liability of none of the
persons or entities just mentioned is at issue in this appeal.
Instead, Barkes seeks to hold two DOC executives liable:

       3
        The majority contends that Talley “testified that she
did not believe it to be her responsibility to ensure FCM’s
compliance with NCCHC standards.” Maj. Transcript at 8–9.
As Talley explained, she “managed the health care issues for
inmates” by “working with the contracted vendor and through
the [Medical Review Committee].” App. at 806. Any
complaints about medical issues “would be presented to the
MRC. It was as a group. We were a committee that would
oversee the contract.” App. at 806.




                               4
Commissioner Stanley Taylor (Talley’s supervisor) and
HRYCI Warden Raphael Williams (who was outside the
chain of supervision over FCM). 4 The parties agree that
neither executive had any personal knowledge of Barkes
before his death. In fact, Warden Williams was on vacation
while Barkes was at the HRYCI. Commissioner Taylor was
scarcely more involved in supervising FCM than Warden
Williams; in fact, Delaware law empowered him to designate
someone to administer the state’s medical services contract,
and he appointed Talley to discharge that duty. See Del. Code
tit.11, § 6517(12). The essence of Barkes’s claims against
Taylor and Williams is that despite the fact that others were
responsible for supervising FCM, “the buck stops” at the top.5


      4
          FCM’s medical staff were not employees of the
HRYCI and they did not report to Warden Williams.
Williams’s “participation in health care” at the HRYCI was
limited to “provid[ing] access, space, and security for
[FCM’s] medical staff.” App. at 517. When Barkes’s lawyer
asked Williams whether he “had any responsibilities for the
adequate provision of health care to inmates,” he answered,
“No. That was through management services. That’s where
the responsibility lied.” App. at 517. Another time, Williams
testified: “all those policies were by management services.
They were tasked with ensuring that FCM followed through
with their contractual obligations. That’s strictly through
them.” App. at 792.
      5
        The majority states that “Taylor’s termination letter
to FCM indicates his awareness of FCM’s gross contractual
non-compliance,” and that “[a] reasonable juror could draw
from that evidence the conclusion that Appellants were aware




                              5
        When Barkes’s widow filed this lawsuit6 in 2006, her
complaint included two section 1983 claims against Taylor
and Williams: (1) deliberate indifference to the conditions at
the HRYCI; and (2) failure to supervise the DOC personnel
and failure to institute appropriate procedures.7 United States
District Court Judge Joseph Farnan granted Taylor and
Williams summary judgment on both claims. Barkes’s
deliberate indifference claim failed because she had not
presented sufficient evidence of knowledge by Taylor and
Williams of constitutionally inadequate medical conditions at
the HRYCI. Her supervisory liability claim failed as a matter
of law because she did not satisfy the threshold requirement
for supervisory liability we established in Sample v. Diecks,
885 F.2d 1099 (3d Cir. 1989), which requires a plaintiff to
“identif[y] . . . a specific supervisory practice or procedure
that [the supervisor] failed to employ.” Id. at 1118.



of an unreasonable risk.” Maj. Transcript at 48. However, the
District Court has already recognized that events occurring
after Barkes’s death, such as Taylor’s 2005 letter terminating
the DOC’s contract with FCM “cannot be probative of
Commissioner Taylor’s or Warden William[s]’s awareness in
2004 of a substantial risk.” App. at 83.
      6
         Plaintiffs are Barkes’s widow, Karen, both in her
personal and representative capacity, as well as his two
daughters. For ease of reference, I refer to Plaintiffs
collectively as “Barkes.”
      7
         Not relevant to this appeal, the complaint also
included a wrongful death claim against Taylor and Williams,
upon which they were granted summary judgment.




                              6
       Several months after granting Taylor and Williams
summary judgment, the District Court granted Barkes leave to
file an amended complaint. The Court dismissed that first
amended complaint for reprising the claims dismissed on
summary judgment. Barkes filed a second amended
complaint, which was dismissed for failure to state a claim.

        In 2010, following the retirement of Judge Farnan,
Barkes’s case was reassigned to the Honorable Leonard Stark.
Barkes filed a third amended complaint that again sought to
hold Taylor and Williams liable under a theory of supervisory
liability. Having already suffered a summary judgment on the
claim that Taylor and Williams failed to supervise employees
of the DOC, Barkes shifted gears to argue that they failed to
supervise FCM. Once again, Taylor and Williams sought
summary judgment, asserting qualified immunity for the first
time. Barkes also filed a motion for summary judgment.

       Before deciding the parties’ summary judgment
motions, Judge Stark addressed Barkes’s separate motion to
vacate the 2006 summary judgment and revive the Eighth
Amendment and supervisory liability claims upon which
Taylor and Williams had prevailed in 2006 before Judge
Farnan. With respect to Barkes’s Eighth Amendment claim,
the District Court held:

      Assuming, as Plaintiffs appear to argue, that
      deliberate indifference . . . can be shown by
      Defendants’ deliberate indifference to the
      medical needs of prisoners such as Barkes
      himself . . . the Court nonetheless concludes
      that nothing alters the prior conclusions: a
      reasonable factfinder could not determine that




                             7
       Defendants were deliberately indifferent to the
       risk of suicide.

App. at 15. The District Court also upheld the 2006 summary
judgment on Barkes’s supervisory liability claim for failure to
supervise DOC personnel and failure to institute appropriate
suicide prevention policies, concluding: “even assuming that
the existing policy created an unreasonable risk of Eighth
Amendment injury, there is still not sufficient evidence in the
record from which a reasonable factfinder would conclude
that Defendants were aware such an unreasonable risk was
created and were indifferent to that risk.” App. at 16.

        After upholding the 2006 summary judgment for want
of evidence that Taylor and Williams were aware of and
indifferent to an unreasonable risk of suicide, the District
Court denied their motion for summary judgment on Barkes’s
claim that they failed to supervise FCM. In doing so, as the
majority implicitly acknowledges, see Maj. Typescript at 18,
the District Court erred in its application of Sample by failing
to require Barkes to “identif[y] . . . a specific supervisory
practice or procedure that [the supervisor] failed to employ.”
Sample, 885 F.2d at 1118. That is a significant oversight, as
this was the decisive element for Judge Farnan in deciding the
earlier supervisory liability claim. Taylor and Williams now
appeal that ruling, claiming qualified immunity because
Barkes did not allege a legally cognizable supervisory
liability claim against them and that such a right was not
clearly established.




                               8
                               III

                                A

        I begin with the Supreme Court’s decision in Ashcroft
v. Iqbal, 556 U.S. 662 (2009), which altered the legal
landscape regarding supervisory liability. Iqbal sued U.S.
Attorney General John Ashcroft and F.B.I. Director Robert
Mueller, alleging that the conditions of his detention violated
his constitutional rights. Iqbal claimed that Ashcroft and
Mueller were “liable for knowledge and acquiescence in their
subordinates’ use of discriminatory criteria to make
classification decisions among detainees.” Id. at 677 (internal
quotation marks deleted). “That is to say, [Iqbal] believe[d] a
supervisor’s mere knowledge of his subordinate’s
[unconstitutional] discriminatory purpose amounts to the
supervisor’s violating the Constitution.” Id. The Court
“reject[ed] [the] argument,” ruling that “a plaintiff must plead
that each Government-official defendant, through the
official’s own individual actions, has violated the
Constitution.” Id. at 676–77. The Court continued: “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.” Id. at 677.

       Since Iqbal, supervisory liability claims must spring
from “actions” or “misconduct,” Iqbal, 556 U.S. at 676, 677;
the mere fact that the supervisor occupied a position of
authority is insufficient. Accordingly, the overwhelming
weight of authority requires plaintiffs to establish the
supervisor’s personal involvement in his subordinates’
misfeasance. See Vance v. Rumsfeld, 701 F.3d 193 (7th Cir.




                                9
2012) (en banc); Carnaby v. City of Houston, 636 F.3d 183,
189 (5th Cir. 2011); Porro v. Barnes, 624 F.3d 1322 (10th
Cir. 2010); Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th
Cir. 2009) (en banc). But see Starr v. Baca, 652 F.3d 1202
(9th Cir. 2011) (upholding failure to supervise claim when
supervisor was not personally involved, but bore statutory
responsibility for plaintiff’s injury). The courts of appeals
requiring the supervisor’s personal involvement—i.e., the
Fifth, Seventh, Eighth, and Tenth Circuits—have upheld
supervisory liability claims when the challenged policy
originates with the supervisor or he contributes to its
unlawfulness. See, e.g., Dodds v. Richardson, 614 F.3d 1185,
1190 (10th Cir. 2010) (challenging sheriff’s accession to
unlawful policy of denying bond after hours); T.E. v. Grindle,
599 F.3d 583 (7th Cir. 2010) (challenging school principal’s
active concealment of abuse reports). None of those courts of
appeals has upheld a so-called “failure-to” claim, in which
subordinates violate the law while the supervisor fails to take
remedial action.

        Decisions of both the Seventh and Tenth Circuits
illustrate the fundamental dichotomy between cases involving
the supervisors’ personal involvement on the one hand and
those relying on the supervisor’s position of authority. For
example, the Seventh Circuit upheld a supervisory liability
claim in T.E. v. Grindle, 599 F.3d 583 (7th Cir. 2010), when
the plaintiffs “allege[d] that [the principal was] liable for
actively concealing reports of abuse and creating an
atmosphere that allowed abuse to flourish. In other words,
they argue[d] that [the principal’s] own actions deprived them
of their constitutional right.” Grindle, 599 F.3d at 590




                              10
(emphasis added).8 Significantly, the plaintiffs’ theory did not
rely on the “mere failure of supervisory officials to act.” Id.
The allegations survived Iqbal “[b]ecause plaintiffs seek to do
no more than hold [the principal] liable ‘for . . . her own
misconduct.’” Id. (quoting Iqbal).

       Two years after Grindle was decided, the Seventh
Circuit, sitting en banc, confronted a failure-to-supervise
claim in Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en
banc). Vance sued Secretary of Defense Donald Rumsfeld,
alleging that “[Secretary Rumsfeld] received reports that his
subordinates     sometimes       [unlawfully]      used    [harsh
interrogation] techniques . . . and . . . he did not do enough to
bring interrogators under control.” Id. at 203. The Seventh
Circuit recognized that after Iqbal, “[t]he supervisor can be
liable only if he wants the unconstitutional or illegal conduct
to occur.” Id. For Vance’s deliberate indifference claim, that
meant he “would need to allege that Rumsfeld knew of a
substantial risk to security contractors’ employees, and
ignored that risk because he wanted plaintiffs (or similarly
situated persons) to be harmed.” Id. at 204. This was because,
absent that showing, supervisory liability claims become
claims for vicarious liability. Id. “The head of any large
bureaucracy receives reports of misconduct. . . . But heads of
organizations have never been held liable on the theory that
they did not do enough to combat subordinates’ misconduct,
and the Supreme Court made it clear in Iqbal that such
theories of liability are unavailing.” Id. at 204–05. For these

       8
         Contrary to the majority’s view of the case, the
Grindle plaintiffs alleged much more than that the supervisor-
principal “allow[ed] a subordinate teacher to continue
working.” Maj. Typescript at 23.




                               11
reasons, the Seventh Circuit granted Secretary Rumsfeld
qualified immunity.9


      9
         The majority distinguishes Vance on the basis that
Secretary Rumsfeld’s subordinates violated a federal statute
instead of the Eighth Amendment. Although it is true that
Vance did not involve an Eighth Amendment claim, its
analysis on this point relied exclusively on Eighth
Amendment case law. It goes without saying that if both a
federal statute and the Eighth Amendment embrace the same
state of mind, the analysis is identical. The majority and
Vance both apply Farmer v. Brennan, 511 U.S. 825 (1994), a
fact obscured by the majority’s removal of “But Farmer v.
Brennan, holds that” in quoting Vance. See Maj. Typescript at
36 n.10. Vance’s unaltered text explains:

      The supervisor must want the forbidden
      outcome to occur. Deliberate indifference to a
      known risk is a form of intent. But Farmer v.
      Brennan, 511 U.S. 825 (1994), holds that, to
      show scienter by the deliberate-indifference
      route, a plaintiff must demonstrate that the
      public official knew of risks with sufficient
      specificity to allow an inference that inaction is
      designed to produce or allow harm.

701 F.3d at 204. One sentence later, the court restated its
reliance on Farmer:

      Prisons are dangerous places, and misconduct
      by both prisoners and guards is common.
      Liability for wardens would be purely vicarious.




                             12
        Like the Seventh Circuit’s decision in Grindle, the
Tenth Circuit’s decision in Dodds v. Richardson, 614 F.3d
1185 (10th Cir. 2010), did not involve a “failure-to” claim.
That case involved a sheriff who violated a state law
requiring sheriffs to accept bonds for “persons jailed at times
other than the normal working hours.” Id. at 1190. The sheriff
acceded to a county clerk’s non-binding policy of forbidding
persons charged with felonies from posting bond after hours.
Id. The Tenth Circuit held that Iqbal limited section 1983
liability to “defendants whose own individual actions cause a
constitutional deprivation because it requires plaintiffs prove
each defendant took some act with the constitutionally
applicable state of mind that caused the alleged constitutional
violation.” Id. at 1200 (emphasis added). It upheld the claim
because the plaintiff “presented facts that establish personal
involvement” by “show[ing] [the sheriff] may have played
more than a passive role in the alleged constitutional




      Farmer rejected a contention that wardens (or
      guards) can be liable just because they know
      that violence occurs in prisons and don't do
      more to prevent it on an institution-wide basis.
      To get anywhere, [plaintiffs] would need to
      allege that Rumsfeld knew of a substantial risk
      to security contractors’ employees, and ignored
      that risk because he wanted plaintiffs (or
      similarly situated persons) to be harmed.

701 F.3d at 204.




                              13
violation—he may have deliberately enforced or actively
maintained the policies in question at the jail.” Id. at 1204.10

       Unlike the direct involvement alleged in Dodds, the
Tenth Circuit was presented with a failure-to-supervise claim
in Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010). There, an

       10
          The majority warns that this “rule would have the
practical effect of requiring that a supervisor have personal
knowledge of an individual inmate, that inmate’s particular
serious medical need, and of the prison staff’s failure to treat
that need,” Maj. Transcript at 32. In fact, Dodds demonstrates
the incorrectness of the majority’s supposition because there
the “Plaintiff [did] not allege [the Supervisor-]Defendant was
one of the jail employees who told him and the individuals
who inquired about posting bail on his behalf that he could
not post the bail . . . . Nor [did the] Plaintiff contend [the
Supervisor-]Defendant personally instructed those employees
to refuse to accept bail from [the] Plaintiff.” Dodds, 614 F.3d
at 1194.

       Separately, the majority attacks this rule with a
hypothetical from Judge Hamilton’s dissent from Vance in
which “a local police chief or even the FBI director issued a
policy that authorized the use of deadly force,” which policy
“would be clearly unconstitutional.” Maj. Transcript at 34
(quoting Vance, 701 F.3d at 223 (Hamilton, J., dissenting)).
This hypothetical clearly survives Dodds because the policy’s
unconstitutional quality originates with the supervisor. Judge
Hamilton’s hypothetical is poles apart from Barkes’s
complaint, which alleges FCM’s policies—not the DOC’s—
caused the HRYCI’s healthcare to deteriorate below the
constitutional minimum.




                              14
inmate who was tasered three times by correctional officers
brought a supervisory liability action against the county
sheriff. Id. at 1324–25. The sheriff did not approve the
tasering and was not present when it occurred. Id. at 1327.
Consistent with Dodds, the Tenth Circuit held that “[t]o
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.” Id. at 1327–28 (quotations and
alterations omitted) (emphasis added); see also Dodds, 614
F.3d at 1195 (“[T]he plaintiff must establish a deliberate,
intentional act by the supervisor to violate constitutional
rights.”). The court rejected the claim against the sheriff
“because there [was] no evidence of his direct personal
responsibility for the force used.” Id. at 1326 (emphasis in
original).

        Like the Seventh and Tenth Circuits, the Fifth and
Eighth Circuits have rejected similar “failure-to” claims after
Iqbal. In Nelson v. Correctional Medical Services, 583 F.3d
522 (8th Cir. 2009) (en banc), a prison guard shackled the
plaintiff’s legs during labor, causing permanent injuries while
she gave birth. The plaintiff sued the director of the Arkansas
Department of Correction, for “[failure] to ensure that proper
policies and customs were implemented with respect to the
restraint of female inmates in labor.” Id. at 527. Sitting en
banc, the Eighth Circuit held that under Iqbal a supervisor is
“liable only if he personally displayed deliberate indifference
to the hazards and pain resulting from shackling an inmate
such as [Plaintiff] during the final stages of labor.” Id. at 535




                               15
(emphasis added). 11 The court confined its analysis to the
polices actually promulgated by the Department of Correction
under the director’s watch, concluding that the policies
showed “administrative concern for the health and safety of
pregnant inmates.” Id. at 536. 12 Noting the absence of the
commissioner’s “personal involvement,” the Eighth Circuit
granted qualified immunity. Id. On this point, the en banc
court was unanimous. Id. at 536 (Riley, J., concurring in part
and dissenting in part). The Fifth Circuit has likewise
narrowed supervisory liability to conform to Iqbal: “Beyond
[the supervisor’s] own conduct, the extent of his liability as a
supervisor is similar to that of a municipality that implements




       11
         The Eighth Circuit reiterated this point in Whitson v.
Stone County Jail, 602 F.3d 920 (8th Cir. 2010), when it
stated that prison supervisors can be liable on an Eighth
Amendment claim “only if they personally displayed
deliberate indifference to the risk” of a constitutional
deprivation. Id. at 927–28.
       12
          Just as Nelson approved of the Arkansas Department
of Correction’s policies expressed in its regulations, we
would not hesitate to approve of the Delaware Department of
Correction’s policy expressed in its contract that requires
FCM “to implement ‘Best Practices’ from State Correctional
Services” for mental health care if Barkes challenged the
DOC’s policies. App. at 138. That analysis is unnecessary,
however, because Barkes does not challenge the DOC’s
policies.




                              16
an unconstitutional policy.” Carnaby v. City of Houston, 636
F.3d 183, 189 (5th Cir. 2011).13

        The Ninth Circuit’s decision in Al-Kidd v. Ashcroft,
580 F.3d 949 (9th Cir. 2009), overruled on other grounds,
131 S. Ct. 2074 (2011), aligns with these authorities. In that
case, the government detained the plaintiff under the authority
of the federal material witness statute and held him for
suspected terrorist activity. The plaintiff brought a
supervisory liability action against Attorney General John
Ashcroft alleging two violations of the law. First, that
Ashcroft “purposefully used the material witness statute” to
unlawfully detain persons and that Ashcroft “designed and
implemented” this policy. Id. at 957, 976. 14 That claim

      13
           The First Circuit’s pre-Iqbal case law already
required “an affirmative link between the behavior of a
subordinate and the action or inaction of his supervisor . . .
such that the supervisor’s conduct led inexorably to the
constitutional violation.” Soto-Torres v. Fraticelli, 654 F.3d
153, 158 (1st Cir. 2011) (quoting Pineda v. Toomey, 533 F.3d
50, 54 (1st Cir. 2008)) (internal quotation marks omitted); see
also Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir.
2009) (quoting Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st
Cir. 1999)). Whether this standard satisfies Iqbal remains a
question of first impression for the First Circuit, however.
Soto-Torres, 654 F.3d at 158 n.7; Maldonado v. Fontanes,
568 F.3d 263, 274 n.7 (1st Cir. 2009).
      14
          The majority reads Al-Kidd as “suggest[ing] that
under Iqbal the United States Attorney General could be
liable for knowingly ‘fail[ing] to act in the light of even
unauthorized abuses.’” Maj. Typescript at 21. In fact, the




                              17
survived Ashcroft’s qualified immunity defense because,
“unlike in Iqbal, these [were] not bare allegations that the
Attorney General ‘knew of’ the policy. Here, the complaint
contain[ed] allegations that plausibly suggest that Ashcroft
purposely instructed his subordinates to bypass the plain
reading of the statute.” Id. at 976. The second supervisory
liability claim sought to hold Ashcroft liable for subjecting
the plaintiff to “unreasonably punitive conditions of
confinement” during his detention. Id. at 957. The Ninth
Circuit granted Ashcroft qualified immunity on this claim
because “the complaint [did] not allege any specific facts—
such as statements from Ashcroft or from high ranking
officials in the DOJ—establishing that Ashcroft had personal
involvement in setting the conditions of confinement.” Id. at
978. Neither claim required the court to decide whether the
“knowing failure to act standard” survived Iqbal, and it
reserved judgment on that question. Id. at 976 n.25.15



Ninth Circuit took pains to ensure that its decision was not
read for that proposition: “We need not address whether [the
‘knowing failure to act’ standard survived Iqbal] because al-
Kidd plausibly pleads ‘purpose’ rather than just ‘knowledge’
to impose liability on Ashcroft.” Al-Kidd v. Ashcroft, 580
F.3d 949, 976 n.25 (9th Cir. 2009).
       15
           Although the Al-Kidd majority explained that its
decision relied on the plaintiff’s pleadings of purpose and not
a failure to act, Judge Bea perceived otherwise and dissented
from the decision on this point, saying “it is doubtful that the
majority’s knowing failure to act standard survived Iqbal.”
580 F.3d at 992 n.13 (Bea, J., dissenting).




                              18
        When the Ninth Circuit faced a “failure-to” claim in
Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), it departed from
the approaches taken by the Fifth, Seventh, Eighth, and Tenth
Circuits. Contrary to the other four courts of appeals, the
Ninth Circuit upheld an Eighth Amendment supervisory
liability claim against a sheriff “because he knew or should
have known about the dangers in the [jail], and . . . was
deliberately indifferent to those dangers.” Id. at 1204–05. The
plaintiff’s complaint contained detailed allegations
concerning the sheriff’s knowledge of his subordinates’
unlawfulness.16 In determining the sheriff’s culpability for his

       16
          It is worth noting that Barkes’s allegations of
knowledge by Taylor and Williams come nowhere near the
facts averred by the Starr plaintiff:

       Starr specifically alleges numerous incidents in
       which inmates in Los Angeles County jails have
       been killed or injured because of the culpable
       actions of the subordinates of Sheriff Baca. The
       complaint specifically alleges that Sheriff Baca
       was given notice of all of these incidents. It
       specifically alleges, in addition, that Sheriff
       Baca was given notice, in several reports, of
       systematic problems in the county jails under
       his supervision that have resulted in these
       deaths and injuries.

652 F.3d at 1216. On the question of knowledge, Barkes
alleges merely that Taylor and Williams “were aware that the
suicide rate in Delaware prisons was above the national
average,” that they knew “jailed detainees have a higher
incidence of suicide than incarcerated inmates” but “there




                              19
inaction, however, the Court permitted the claim to go
forward because a state statute held the sheriff “answerable
for the prisoner’s safekeeping.” Id. at 1208. In a vigorous
dissent, Judge Trott claimed that the “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.” Id. at 1217 (Trott, J., dissenting).
In his view, “simply alleging generally that the Sheriff is
answerable for the prisoner’s safe-keeping doesn’t cut it.”
Id.17




was only one suicide prevention policy applicable to both,”
and that both were “aware that the first twenty-four hours of a
jailed detainee’s detention were a time of high-suicide risk.”
App. at 171–72.
       17
          Although no statute holds Taylor and Williams
responsible for medical conditions at the HRYCI, Judge
Trott’s observations apply equally well to this appeal:

       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.”

Starr, 652 F.3d at 1219 (Trott, J., dissenting).




                               20
                             B

        Barkes’s allegations are inadequate under any of our
sister circuits’ interpretations of Iqbal. Barkes argues that
FCM acted unlawfully in providing medical care at the
HRYCI, and she would hold Taylor and Williams liable
because they allegedly knew that FCM provided
constitutionally inadequate medical care and failed to cure
FCM’s deficiencies. But nothing in the pleadings alleges that
Taylor and Williams “personally displayed deliberate
indifference,” Nelson, 585 F.3d at 535, committed a
“deliberate, intentional act,” Porro, 624 F.3d at 1327–28;
Dodds, 614 F.3d at 1195, or “wanted plaintiffs (or similarly
situated persons) to be harmed.” Vance, 701 F.3d at 204. Nor
does Barkes challenge any of the policies promulgated by the
DOC. In fact, she does the opposite, citing with approval the
DOC’s contract requiring FCM to use “[b]est [p]ractices” for
mental health care as proof of wrongdoing. App. at 138.
Barkes has alleged nothing beyond knowledge on the part of
Taylor and Williams. She complains that Taylor spent “‘very
little’ time on prison health care issues, delegating the
responsibility to others.” App. at 172. But after Iqbal, that
fact alone merits a dismissal because Barkes must establish
that Taylor and Williams “played more than a passive role in
the alleged constitutional violation.” Dodds, 614 F.3d at
1204. Claims brought because—in Barkes’s words—the
supervisor “presided over a system” fall well short of the
standard established in Iqbal. App. at 745.

       Barkes’s claim fails even under the Ninth Circuit’s
approach in Starr. That opinion applied a pure deliberate
indifference standard without a personal involvement
requirement. Unlike in Starr, here no statute holds either
Commissioner Taylor or Warden Williams “answerable” for




                             21
medical care in Delaware prisons. In fact, a Delaware statute
does the opposite insofar as it empowered Taylor to appoint a
designee to administer the medical services contract. See Del.
Code tit.11, § 6517(12). He did just that, charging the DOC’s
bureau of management services with this duty. And as for
Warden Williams, Barkes’s claim is completely unsupported
because he had no supervisory authority over FCM. FCM
“answer[ed]” to Talley, but not to Taylor or Williams. See
Starr, 652 F.3d at 1208. Barkes might have a cognizable
supervisory liability suit against Talley under Starr, but not
against two senior executives who did not supervise FCM.
Unsurprisingly, when both Judges Farnan and Stark viewed
Barkes’s allegations through a pure deliberate indifference
lens, they too concluded that “a reasonable factfinder could
not determine that Defendants were deliberately indifferent to
the risk of suicide.” App. at 15, 82–82.

                               C

        In light of Iqbal, we must also overrule the framework
we adopted for supervisory liability claims in Sample v.
Diecks, 885 F.2d 1099 (3d Cir. 1989). The absence of
deliberate indifference has not proven fatal to Barkes’s claim
because the majority has determined that Barkes’s claim
should be measured not by a pure deliberate indifference
standard but by Sample, which enunciated a test unique to the
supervisory context. The majority upholds Sample, noting
that our old supervisory liability test already required the
plaintiff to show deliberate indifference. Maj. Typescript at
23–24. True though that statement is, it fails to recognize that
Sample’s version of deliberate indifference differs markedly
from the subjective version of deliberate indifference required
under the Eighth Amendment and omits the personal
involvement requirement that all but one of our sister circuits




                              22
have required. First, Sample does not require the supervisor’s
actual knowledge. Its version of deliberate indifference is
objective, Sample, 885 F.2d at 1118, meaning that a plaintiff
could establish deliberate indifference by establishing that the
supervisor should have known of the excessive risk to inmate
health and safety even if the plaintiff admits the supervisor
actually had no such awareness.

        Sample’s objective quality is patent, insofar as it
fashioned a test based on the objective deliberate-indifference
standard that the Supreme Court established for municipal
liability in City of Canton v. Harris, 489 U.S. 378 (1989). In
Sample, we actually grappled with the fact that the record
before us did not indicate that the supervisor had actual
knowledge of the allegedly constitutionally inadequate prison
procedures. Sample, 885 F.2d at 1118. But we answered that
under Canton,

       this absence of prior incidents and knowledge
       thereof is not necessarily fatal to Sample’s case.
       As we have noted, [Canton] observed that there
       are situations in which the risk of
       constitutionally cognizable harm is so great and
       so obvious that the risk and the failure of
       supervisory officials to respond will alone
       support findings of the existence of an
       unreasonable risk, of knowledge of that
       unreasonable risk, and of indifference to it.

Id. The majority admits that this part of the test we expressed
in Sample is untenable today. Maj. Typescript at 31–32.
Nevertheless, after denuding Sample of its objective quality,
the majority upholds a test that does not require the plaintiff
to plead personal involvement by the supervisor. Under




                              23
Sample, the plaintiff need only establish a “supervisory
practice or procedure that [the supervisor] failed to employ.”
Sample, 885 F.2d at 1118. That is a far cry from the
“personally displayed deliberate indifference,” Nelson, 585
F.3d at 535, or “deliberate, intentional act,” Porro, 624 F.3d
at 1327–28; Dodds, 614 F.3d at 1195, that our sister circuits
have required after Iqbal.

       “Simply put, there’s no special rule of liability for
supervisors. The test for them is the same as the test for
everyone else.” Porro, 624 F.3d at 1328. None of the cases
discussed—not even the Ninth Circuit’s decision in Starr—
has upheld a special test that applies only to supervisors. The
majority disagrees, saying Sample’s “essence” is deliberate
indifference, Maj. Transcript at 24, so we should continue to
treat supervisors differently. Only by doing so, can the
majority circumvent the District Court’s prior holdings that
the record does not show deliberate indifference. App. at 15.18
Sample’s unique combination of elements applies only to the
supervisory form of deliberate indifference and permits
Barkes to take her claim to trial without alleging Taylor and
Williams’s personal involvement.

       18
           The majority argues Barkes’s earlier claims are
distinct, Maj. Transcript at 31, but it is a distinction without a
difference. Whether Barkes argues Taylor and Williams
failed to supervise DOC staff (as in the earlier claim) or FCM
(as in the claim at issue now), knowledge and indifference is
the common thread, and the fact that “there is still not
sufficient evidence in the record from which a reasonable
factfinder would conclude that Defendants were aware such
an unreasonable risk was created and were indifferent to that
risk” is fatal. App. at 16.




                               24
        With due respect to my colleagues’ concern that Iqbal
has “bedeviled” the courts of appeals, Maj. Typescript at 20, I
perceive near unanimous agreement among our sister circuits.
Barkes’s claim plainly seeks to hold Taylor and Williams
vicariously liable for, in Barkes’s words, “presid[ing] over a
system,” App. at 745, that she deems unlawful. Today’s
decision invites plaintiffs to sue senior government officials
whenever prison guards use force against an inmate or police
officers mistreat a suspect. Regrettably, it exposes
Commissioner Taylor and Delaware’s prison wardens to
lawsuits from any Delaware inmate with a complaint about
FCM’s services. “In an ideal world, [supervisors] would have
achieved full compliance with the [law], but a public
official’s inability to ensure that all subordinate . . .
employees follow the law has never justified personal
liability. . . . [S]upervisors are not vicariously liable for their
subordinates’ transgressions.” Vance, 701 F.3d at 203.

       For these reasons, I would reverse the District Court’s
denial of Taylor and Williams’s motion for summary
judgment on qualified immunity. See Dodds v. Richardson,
614 F.3d 1185, 1194 (10th Cir. 2010) (explaining that
questions of supervisory liability, though part of the substance
of a section 1983 claim, are also part of the qualified
immunity analysis); al-Kidd v. Ashcroft, 580 F.3d 949, 964–
65 (9th Cir. 2009) (same). None of the courts that have
considered Iqbal have applied a standard like Sample’s, as the
majority does today. The District Court’s prior decision that
Barkes cannot prove Taylor and Williams’s deliberate
indifference combined with the absence of any allegation of
personal involvement on their part, entitles them to qualified
immunity.




                                25
                              IV

      Even had Iqbal not substantially changed the law of
supervisory liability and had Sample remained good law, I
would still hold that Taylor and Williams are entitled to
summary judgment. According to Sample, the test for
supervisory liability is as follows:

       Based on City of Canton, we conclude that a
       judgment could not properly be entered against
       [the supervisor] in this case based on
       supervisory liability absent an identification by
       [the plaintiff] of a specific supervisory practice
       or procedure that [the supervisor] failed to
       employ and specific findings by the district
       court that (1) the existing custom and practice
       without that specific practice or procedure
       created an unreasonable risk of prison
       overstays, (2) [the supervisor] was aware that
       this unreasonable risk existed, (3) [the
       supervisor] was indifferent to that risk, and (4)
       [the subordinate’s constitutional tort] resulted
       from [the supervisor’s] failure to employ that
       supervisory practice or procedure.

885 F.2d at 1118. The District Court erred by omitting
Sample’s threshold prerequisite, namely, that the plaintiff
identify “a specific supervisory practice or procedure that [the
supervisor] failed to employ.” Id.; accord Maj. Typescript at
18. It applied only Sample’s enumerated elements without
ever requiring Barkes to identify a supervisory practice and
misstated Sample’s causation element by omitting the
identified supervisory practice. Judge Farnan properly applied
Sample when he granted Taylor and Williams summary




                              26
judgment on Barkes’s first supervisory liability claim, and his
analysis turned on Sample’s threshold element. And although
the majority has accurately spelled out the Sample test—
implicitly recognizing the District Court’s error—it errs in
concluding that Barkes has satisfied this essential element.

        Barkes’s complaint does not even attempt to make the
identification required by Sample. Nevertheless, according to
the majority:

       Appellees claim that Taylor and Williams
       should have enforced FCM’s compliance with
       their contractual obligations, specifically by
       requiring FCM to adhere to up-to-date NCCHC
       standards, by properly administering the
       standards to which they adhered, and by
       requiring mental health screenings to have been
       conducted by a qualified mental health
       professional rather than an unqualified LPN,
       thus satisfying Sample’s threshold requirement.

Maj. Typescript at 46. The majority does not say where
Barkes makes this contract enforcement allegation and my
review of the pleadings failed to locate it either.

       But even if Barkes had made this allegation, her
Sample claim would fail because “enforcing” a contract is not
“a supervisory practice or procedure.” Sample’s threshold
element forces the plaintiff to explain not just that the
supervisor failed to act, but also what he should have done
differently. As we cautioned in Sample:

       [I]t is not enough for a plaintiff to argue that the
       constitutionally cognizable injury would not




                               27
      have occurred if the superior had done more
      than he or she did. The district court must insist
      that [the plaintiff] identify specifically what it is
      that [the supervisor] failed to do that evidences
      his deliberate indifference. Only in the context
      of a specific defalcation on the part of the
      supervisory official can the court assess whether
      the official’s conduct evidenced deliberate
      indifference and whether there is a close causal
      relationship between the “identified deficiency”
      and the “ultimate injury.”

885 F.2d at 1118. Barkes’s contention that Taylor and
Williams should have enforced the contract fails to meet our
specificity requirements. The relevant question is: what
“supervisory practice or procedure” should Taylor or
Williams have implemented to enforce the contract?
Commissioner Taylor already tasked a bureau with enforcing
the FCM contract, and Warden Williams had no supervisory
responsibilities over FCM. Pursuant to Delaware law, Joyce
Talley, the chief of the DOC’s Bureau of Management
Services, supervised FCM. Barkes’s utter failure to satisfy
this element of Sample’s test underscores the fact that neither
Taylor nor Williams supervised FCM. Barkes has targeted
them merely as top-level DOC executives.

        Even had Sample survived Iqbal, Taylor and Williams
would be entitled to summary judgment. Judge Farnan
granted them summary judgment on the first supervisory
liability claim because Barkes failed to meet Sample’s
threshold requirement. Barkes did not allege in her third
amended complaint a specific supervisory practice that Taylor
and Williams should have performed, and any allegations that
Taylor and Williams should have “enforced” the contract




                               28
would do nothing to cure that omission. The District Court
should have granted Taylor’s and Williams’s motion for
summary judgment on the supervisory liability claim for the
same reasons Judge Farnan did on the earlier supervisory
liability claim.

                               V

        Finally, I disagree with the majority’s formulation of
the constitutional right at issue. In addition to challenging the
viability of supervisory liability after Iqbal, Taylor and
Williams argued that Barkes’s asserted right was not “clearly
established.” If true, that would also entitle them to qualified
immunity. See Reichle v. Howards, 132 S. Ct. 2088, 2093
(2012). They argued that our case law had not clearly
established a right “to supervision of the medical vendor by
the prison administrators.” Br. of Appellants at 19. The
majority responds by stating “that the right [Barkes] assert[s],
properly defined, is this: an incarcerated person’s right to the
proper implementation of adequate suicide prevention
protocols.” Maj. Typescript at 40. This is problematic for two
reasons. First, the description of a right to suicide prevention
protocols does not address Taylor and Williams’s argument
that there is no clearly established right to supervision over
those charged with developing and carrying out suicide
prevention protocols since this supposed right concerns
FCM’s responsibilities.19


       19
          I disagree with the majority’s belief that Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004), established a right to
supervision for a simple reason: Spruill was not a supervisory
liability case, and the defendant had no supervisory
relationship with the medical staff.




                               29
        The more concerning error is that the majority’s
articulation of the constitutional right departs from the Eighth
Amendment case law. The majority claims this right “to the
proper implementation of adequate suicide prevention
protocols,” Maj. Typescript at 40, is established in our
precedents, but it cites no case for this proposition, and I have
found none. Indeed, the majority’s description of a right to
“adequate suicide prevention protocols” (and for that matter,
Barkes’s contention that FCM’s administration of the
NCCHC’s 1997 standards by an LPN amounts to cruel and
unusual punishment) would appear to be inconsistent with the
weight of authority on this question. See, e.g., Jenkins v. Cnty.
of Hennepin, 557 F.3d 628, 633 (8th Cir. 2009) (plaintiff’s
allegations “that the Detention Center’s intake procedures
were insufficient to identify certain types of serious injuries”
failed because “the range of acceptable medical care is broad.
Jailers bear only the responsibility to identify medical needs
that are so obvious that even a layperson would easily
recognize the necessity for a doctor's attention.”); Brumfield
v. Hollins, 551 F.3d 322, 328 (5th Cir. 2008) (granting
defendants summary judgment where jail had no written
policy but an oral policy required officers to place a detainee
in an observation cell if the detainee appeared suicidal);
Belcher v. Oliver, 898 F.2d 32, 34–35 (4th Cir. 1990) (“The
general right of pretrial detainees to receive basic medical
care does not place upon jail officials the responsibility to
screen every detainee for suicidal tendencies.”).

       Even if it were true that clearly established law
mandated “adequate suicide prevention protocols,” the
majority’s requirement of the “proper implementation” of
those protocols plainly violates the basic proposition that the
Eighth Amendment does not impose liability for negligence.




                               30
See Colburn v. Upper Darby Twp., 946 F.2d 1017, 1024 (3d
Cir. 1991). “Failure to follow written procedures does not
constitute per se deliberate indifference. If this were so, such
a rule would create an incentive for jails to keep their policies
vague, or not formalize policies at all.” Luckert v. Dodge
Cnty., 684 F.3d 808, 819 (8th Cir. 2012) (granting supervisor
qualified immunity when the prison’s “actual practice in
dealing with suicide intervention . . . did not reflect [the
prison’s] written policy”).

                             * * *

       Barkes has targeted Taylor and Williams for
“presid[ing] over a system.” App. at 745. This runs afoul of
Iqbal and the substantial weight of authority among our sister
courts, which holds that supervisors like Taylor and Williams
cannot be liable under section 1983 absent their personal
involvement. Even under the Ninth Circuit’s approach,
Barkes would need to sue the person actually supervising
FCM and cannot recover against the DOC’s top executives.
None of the courts of appeals since Iqbal have upheld a
supervisory liability test like Sample’s, which treats
supervisors differently from everyone else.

       Even assuming arguendo that Sample remains good
law, Barkes’s allegation that Taylor and Williams failed to
enforce a contract with FCM does not satisfy Sample’s
threshold element. Finally, the “right to the proper
implementation of adequate suicide prevention protocols” is a
departure from Eighth Amendment case law that had never
been established before today. Because Taylor and Williams
are entitled to summary judgment on the grounds of qualified
immunity, I respectfully dissent.




                               31
