               Case: 13-10129       Date Filed: 12/23/2013       Page: 1 of 13


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-10129
                              ________________________

                         D. C. Docket No. 2:12-cv-03646-AKK

CINDY LAINE FRANKLIN,

                                                                         Plaintiff-Appellee,

                                            versus

CHRIS CURRY,
individually,
JOHN SAMANIEGO,
individually, et al.,

                                                                   Defendants-Appellants.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________


                                  (December 23, 2013)

Before MARCUS, BLACK and RIPPLE,* Circuit Judges.

PER CURIAM:

       *
          The Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
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       This case arises from Cindy Laine Franklin’s allegation that Michael Keith

Gay, a corrections officer at the Shelby County Jail, sexually assaulted her, and

Franklin’s ensuing lawsuit against Gay and various other officers at the jail. The

officers other than Gay (Appellants or the Supervisory Defendants) moved for

dismissal on the basis of qualified immunity. The district court denied the motion,

and this interlocutory appeal followed. Upon review, we hold that Franklin has

failed to plead a constitutional violation and that Appellants are therefore entitled

to qualified immunity.

                                      I.   BACKGROUND

       We begin with a recitation of the facts as drawn from Franklin’s complaint.

Although the complaint provides little information concerning the sequence and

temporal relation of events, we must accept Franklin’s well-pleaded allegations as

true and draw all reasonable inferences in her favor. See Keating v. City of Miami,

598 F.3d 753, 762 (11th Cir. 2010). 1

       As alleged in the complaint, on October 19, 2010, Franklin was transferred

to Shelby County Jail as a pretrial detainee. During the ensuing booking

procedure, Gay said to Franklin, “I want to see your rug.” Franklin responded that

Gay “would get in trouble,” to which Gay replied, “there is nothing you can do.”


       1
         However, we afford no presumption of truth to legal conclusions and recitations of the
basic elements of a cause of action. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949 (2009); Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).
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As Gay took Franklin’s fingerprints, he placed her hand on his genitals, causing

Franklin to object and tell Gay to leave her alone.

       Some time later, as Franklin slept in her cell, Gay jolted her awake by

getting on top of her with his pants unzipped. Gay forced his penis into Franklin’s

mouth as she resisted. Franklin told her boyfriend and her parole officer about the

incident, after which John Samaniego, a chief deputy at the jail, came to speak with

her. 2 The Alabama Bureau of Investigation obtained a statement from Franklin

and commenced a formal investigation of her claims. Franklin spoke with other

female detainees who told her that Gay had sexually abused another female inmate

and engaged in sex with another. Gay eventually resigned.

       Franklin commenced the instant action against Gay, Chris Curry, Sheriff of

Shelby County, and five other prison officials: Samaniego, the chief deputy who

spoke with her about the assault; Chris George, Division Commander of

Investigations; Chris Corbell, Division Commander of Uniform; Jay Fondren,

Division Commander of Corrections; and Ken Burchfield, Division Commander of

Administration. Franklin asserted constitutional claims under 42 U.S.C. § 1983

against all of the officers in their individual capacities. The Supervisory

Defendants—Curry, Samaniego, George, Corbell, Fondren, and Burchfield—

       2
         Franklin’s complaint does not indicate the duration of her stay at the Shelby County
Jail. However, counsel have stated in filings before the district court and in their brief on appeal
that she was only there “a very short time.”


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moved to dismiss on the basis of qualified immunity. 3 The district court denied the

motion, finding that Franklin had asserted a violation of a clearly established

constitutional right by alleging that she had been harmed by the Supervisory

Defendants’ deliberate indifference to a substantial risk of serious harm. The

Supervisory Defendants now appeal the district court’s denial of their motion.

                                  II.   STANDARD OF REVIEW

      A district court’s denial of qualified immunity on a motion to dismiss is an

appealable order that we review de novo. Rehberg v. Paulk, 611 F.3d 828, 837 n.5

(11th Cir. 2010).

                                          III. DISCUSSION

      Qualified immunity shields government officials acting within their

discretionary authority from liability unless the officials “violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738

(1982). The parties do not dispute that the Supervisory Defendants are government

officials who were acting within the scope of their discretionary authority. Thus,

to evaluate their entitlement to qualified immunity, we ask whether Franklin has

alleged a violation of a constitutional right and, if so, whether the constitutional

right violated was clearly established at the time of the violation. Keating, 598

      3
          Franklin’s claims against Gay are not a part of this appeal.


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F.3d at 762. We hold that Franklin failed to allege a violation of a constitutional

right and thus falls short of this standard.

      In determining whether Franklin alleged a constitutional violation, the

district court made two related errors. First, it applied an incorrect legal standard.

Second, the district court allowed Franklin to satisfy the standard it applied with

conclusory allegations. We address each error in turn.

A. The Legal Standard for Deliberate Indifference

      In analyzing Franklin’s claims against the Supervisory Defendants, the

district court erred by finding allegations that they “knew or should have known”

of a substantial risk of serious harm sufficient to state a deliberate indifference

claim. Deliberate indifference requires more than constructive knowledge.

      The district court began its analysis correctly, stating that, “to establish

supervisory liability under § 1983, a plaintiff must allege that the supervisor

personally participated in the alleged unconstitutional conduct or that there is a

causal connection between the actions of a supervising official and the alleged

constitutional deprivation.” D. Ct. Order at 6 (internal quotation marks and

alterations omitted); see Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

The district court then explained that a plaintiff can show a causal connection, inter

alia, when “the supervisor’s policy or custom resulted in deliberate indifference.”

D. Ct. Order at 6 (internal quotation marks omitted). To this point, the district


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court’s analysis was sound. However, the court then went astray when it

concluded that Franklin had alleged a causal connection, stating:

       Franklin alleges that a causal connection exists because Sheriff Curry
       was on notice of Officer Gay’s alleged conduct and the need to correct
       this practice, but failed to do so, and because Sheriff Curry’s policy or
       custom resulted in deliberate indifference,

and

       [w]ith respect to Officers Samaniego, Burchfield, Fondren, Corbell
       and George, Franklin alleges that they too knew or should have known
       of Officer Gay’s pattern of inappropriate conduct with female
       detainees and inmates but “were deliberately indifferent . . . .”

D. Ct. Order at 7 (emphasis added). In reaching these conclusions, the district

court neglected to analyze whether Franklin had properly alleged deliberate

indifference. In fact, the elements of deliberate indifference do not appear

anywhere in the district court’s order.4

       Its first step should have been to identify the precise constitutional violation

charged—in this case, deliberate indifference—and to explain what the violation

requires. See Baker v. McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979)

(before discussing liability in a § 1983 suit, “it is necessary to isolate the precise

constitutional violation with which [the defendant] is charged”). Had the district




       4
         We do not suggest that district courts must recite a specific set of words in evaluating a
claim, but without setting out even the basic contours of deliberate indifference, the district court
was unable to properly analyze the sufficiency of Franklin’s allegations.
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court done so, Franklin’s failure to allege the required elements would have been

apparent.

      Deliberate indifference requires the following: “(1) subjective knowledge of

a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than

gross negligence.” Goodman v. Kimbrough, 718 F.3d 1325, 1331-32 (11th Cir.

2013) (internal quotation marks omitted). Franklin’s allegations that the

Supervisory Defendants “knew or should have known” of a substantial risk clearly

fall short of this standard. “Were we to accept that theory of liability, the

deliberate indifference standard would be silently metamorphosed into a font of

tort law—a brand of negligence redux—which the Supreme Court has made

abundantly clear it is not.” Id. at 1334. As we have stated, “[t]o be deliberately

indifferent a prison official must know of and disregard an excessive risk to inmate

health or safety; the official must both be aware of facts from which the inference

could be drawn that a substantial risk of serious harm exists, and he must also

draw the inference.” Id. at 1332 (internal quotation marks omitted). Franklin

failed to allege the Supervisory Defendants actually knew of the serious risk Gay

posed even in the most conclusory fashion. Because of this failure, Franklin did

not allege a constitutional violation, and Appellants were entitled to qualified

immunity.




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B. Franklin’s Factual Allegations

      The district court’s second error was finding purely conclusory allegations—

i.e., a “formulaic recitation of the elements of a cause of action”—sufficient to

satisfy the standard it applied. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1937, 1949 (2009) (internal quotation marks omitted). It is important that

defendants be apprised of the conduct that forms the basis of the charges against

them. Conclusory allegations fail to apprise defendants of the factual basis of the

plaintiff’s claims. Accordingly, the Federal Rules of Civil Procedure require a

pleading to contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Specifically, “[t]o survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678,

129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

Ct. 1955, 1974 (2007)). The plausibility standard is met only where the facts

alleged enable “the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. The complaint’s allegations must establish

“more than a sheer possibility that a defendant has acted unlawfully.” Id. Mere

“labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do,” and a plaintiff cannot rely on “naked assertions devoid of

further factual enhancement.” Id. (internal quotation marks and alteration


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omitted); see also id. at 679, 129 S. Ct. at 1950 (“While legal conclusions can

provide the framework of a complaint, they must be supported by factual

allegations.”); Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010) (applying the

standards described in Iqbal to a § 1983 case involving defendants asserting

qualified immunity in place of the heightened pleading standard applied in prior

cases).

      Franklin’s repeated allegations the Supervisory Defendants were deliberately

indifferent or their actions constituted or resulted in deliberate indifference carry

no weight. Similarly, by alleging Appellants “knew or should have known” of a

risk, Franklin has merely recited an element of a claim without providing the facts

from which one could draw such a conclusion. The district court found these

allegations sufficient. Had the district court followed the Supreme Court’s “two-

pronged approach” of first separating out the complaint’s conclusory legal

allegations and then determining whether the remaining well-pleaded factual

allegations, accepted as true, “plausibly give rise to an entitlement to relief,” the

insufficiency of Franklin’s allegations would have been obvious. See Iqbal, 556

U.S. at 679, 129 S. Ct. at 1950; see also Randall, 610 F.3d at 709-10 (“A district

court considering a motion to dismiss shall begin by identifying conclusory

allegations that are not entitled to an assumption of truth—legal conclusions must




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be supported by factual allegations.”); accord Shay v. Walters, 702 F.3d 76, 82 (1st

Cir. 2012).

       Stripping away Franklin’s conclusory allegations leaves only a handful of

properly pleaded facts—specifically, (1) that Gay verbally harassed Franklin and

told her “there is nothing you can do,” (2) that Gay sexually assaulted Franklin,

(3) that Gay had previously sexually assaulted another female detainee, and (4) that

Gay had previously had sexual relations with a third female detainee. Given only

these facts, Franklin’s complaint is insufficient to state a plausible claim that each

of the Supervisory Defendants should have known of a substantial risk that Gay

would sexually assault Franklin, much less that each defendant was subjectively

aware of the risk and knowingly disregarded it. Franklin states that Sheriff Curry

“failed to promulgate, to adopt, to implement or to enforce policies, rules, or

regulations to safeguard female inmates,” but she does not describe any of the

policies that were in place, the sort of policies that should have been in place, or

how those policies could have prevented Gay’s harassment. Similarly, Franklin

alleges the names and titles of the other Supervisory Defendants 5 but alleges


       5
          Appellants point to a related problem of Franklin grouping defendants together in a
manner that makes it impossible to determine the unconstitutional conduct attributed to each one
individually. Our conclusions about the insufficiency of Franklin’s allegations generally render
analysis of this particular deficiency unnecessary except to emphasize the requirement that
Franklin allege each Supervisory Defendant’s subjective awareness of the risk of harm and that
each of them exhibited deliberate indifference through his own actions. Meeting these
requirements without any individualized allegations other than Appellants’ names and titles is
unlikely.
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nothing about the significance of their titles, their individual roles in the jail, their

personal interactions or familiarity with Gay, their length of service, their

management policies, or any other characteristics that would bear on whether they

knew about but were deliberately indifferent to Gay’s conduct and the risk he

posed. 6 From Franklin’s allegations, a finder of fact could not even conclude that

all of the Defendants were ever in the jail, much less that each of their individual

actions constituted deliberate indifference to the risk Gay would abuse Franklin.

Subjecting Appellants to the full “panoply of expensive and time-consuming

pretrial discovery devices,” Nero Trading, LLC v. U.S. Dep’t of Treasury, 570 F.3d

1244, 1249 (11th Cir. 2009), and forcing them to defend this action based on

Franklin’s inadequate allegations not only runs counter to the general rules of

pleading, it also undermines qualified immunity’s fundamental purpose of

protecting “all but the plainly incompetent or those who knowingly violate the




       6
          Before the district court and in her appellate briefs, Franklin essentially conceded that
her allegations concerning the Supervisory Defendants other than Curry were insufficient and
attempted to excuse her lack of specificity by admitting that she simply does not know the details
about the Supervisory Defendants’ responsibilities at this stage. Far from excusing her
insufficient pleadings, this admission only reinforces our conclusion that her complaint was due
to be dismissed. In any event, Franklin cites no legal basis for her contention that her lack of
knowledge should relax the pleading standard to which she is held. Cf. DM Research, Inc. v.
Coll. of Am. Pathologists, 170 F.3d 53, 56 (1st Cir. 1999) (“[T]he discovery process is not
available where, at the complaint stage, a plaintiff has nothing more than unlikely speculations.
While this may mean that a civil plaintiff must do more detective work in advance, the reason is
to protect society from the costs of highly unpromising litigation.”).
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law” from the costs of suit. Aschroft v. al-Kidd, ___ U.S. ___, 131 S. Ct. 2074,

2085 (2011) (internal quotation marks omitted).

       If anything, Franklin’s allegations suggest that the policy of the jail was to

promptly investigate claims of sexual harassment. She alleges that shortly after

she reported Gay’s conduct to her parole officer, a prison official discussed the

attack with her, and an investigation commenced. Ultimately, the officer alleged to

have engaged in wrongdoing resigned. In this way, Franklin’s own allegations

undercut the legal conclusions she asks us to draw from them and fail to allow a

court “to draw [a] reasonable inference that the [Appellants are] liable for the

misconduct alleged.” See Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.

       Thus, even under the relaxed standard the district court applied, Franklin’s

conclusory allegations are insufficient to allege a constitutional violation. This

provides an additional basis for Appellants’ entitlement to qualified immunity. 7

                                        IV. CONCLUSION




       7
          As part of their appeal, Appellants argue that under Iqbal supervisors can only be liable
for constitutional violations if a plaintiff alleges purposeful and intentional conduct. We reject
this argument. Appellants ignore the Iqbal Court’s caution that “[t]he factors necessary to
establish a [claim] will vary with the constitutional provision at issue.” 556 U.S. at 676, 129 S.
Ct. at 1948. The discussion of purposeful intent in Iqbal pertained to claims of invidious
discrimination, not deliberate indifference. See id. Nothing in Iqbal suggests that supervisors
cannot be held liable for deliberate indifference toward risks posed by their subordinates or that
such liability requires a higher mens rea than any other deliberate indifference claim. So long as
a supervisor’s own conduct—and not that of his subordinate—constitutes deliberate indifference,
his status as a supervisor changes nothing. See id.
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      In light of the foregoing, Franklin failed to allege a constitutional violation,

and the district court erred in denying Appellants’ motion to dismiss.

      REVERSED.




                                          13
