Starr

Before: STEPHEN S. TROTT and WILLIAM A. FLETCHER, Circuit Judges, and CHARLES R. BREYER, District Judge. [*]

Order; Dissent by Judge O'SCANNLAIN.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

O'SCANNLAIN, Circuit Judge, joined by GOULD, TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and IKUTA, Circuit Judges, dissenting from the order denying rehearing en banc:

A mere two years ago, the Supreme Court rejected the argument that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007), applied only to antitrust and similarly complex commercial cases, stating that its "decision in Twombly expounded the pleading standard for `all civil actions.'" Ashcroft v. Iqbal, 556 U.S. 662 , 129 S.Ct. 1937, 1953 , 173 L.Ed.2d 868 (2009) (quoting Fed. R.Civ.P. 1). The panel majority in this case disregards that holding, suggesting instead that the Twombly/Iqbal standard does not apply to all civil actions. In reaching this erroneous result, the panel also resurrects a theory of supervisory liability for…

dissenting from the order denying rehearing en banc:

A mere two years ago, the Supreme Court rejected the argument that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007), applied only to antitrust and similarly complex commercial cases, stating that its “decision in Twombly expounded the pleading standard for ‘all civil actions.’” Ashcroft v. Iqbal, 556 U.S. 662 , 129 S.Ct. 1937, 1953 , 173 L.Ed.2d 868 (2009) (quoting Fed. R.Civ.P. 1). The panel majority in this case disregards that holding, suggesting instead that the Twombly/Iqbal standard does not apply to all civil actions. In reaching this erroneous result, the panel also resurrects a theory of supervisory liability for constitutional torts that the Supreme Court has foreclosed. I therefore must dissent from the regrettable failure of our court to rehear this case en banc.

I

Dion Starr, a former inmate of Los Angeles County’s Men’s Central Jail, alleges that on January 27, 2006, correctional officers willfully opened his cell to allow other prisoners to stab him. He further alleges that the officers joined in the beating and then intentionally prevented him from receiving prompt medical…

Order; Dissent by Judge O’SCANNLAIN.

ORDER

A judge of the court called for a vote on the petition for rehearing en bane. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).