506 F.3d 183

WALLACE, Circuit Judge,
concurring in the judgment:
As Judge Cardamone correctly points out in his opinion, Monell v. Department of Social Services bars indirect liability section 1983 claims against state officials. 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.2002) (“A supervisor may not be held liable under section 1983 merely because his subordinate committed a constitutional tort”). I agree with Judge Cardamone that the district court erred by awarding a judgment in the appellees’ favor on these claims, and reversal is required.
I recognize along with Judge Cardamone and Judge Straub that, apart from the bar on respondeat superior liability under section 1983, this court has held that “a supervisor may be found liable for his deliberate indifference to the rights of others.” Poe, 282 F.3d at 140. The analysis of Judge Cardamone persuades me, but that issue is not properly before us and we need not pursue it. First, the appellees failed to allege either in their complaint or in the pretrial order that the State appellants acted with deliberate indifference or gross negligence. Second, the district court never made findings to this end. Third, until prompted to do so, the appellees did not address these issues and even tried to distinguish City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the case on which the deliberate indifference analysis depends. Finally, the deliberate indifference approach fails to provide a coherent account of the district court’s disposition of the various claims in the complaint. It strikes me that we cannot review a case on appeal that was not tried in the district court, and I would not now permit appellees to correct on appeal strategic mistakes that they made in the trial court; the issue is forfeited and Monell ends the game. Under these circumstances, I conclude there is no reason to remand and allow appellees to start over with a new game plan.

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