Post-Iqbal Pleading in Federal Courts: Three Recent Circuit Decisions
As is well known by now, several years ago the Supreme Court announced what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)(Bivens action vs. federal officials). Precisely what this means in real-world terms is not entirely clear, and federal courts and litigants have since struggled with the plausibility standard and its relation to notice pleading in federal courts.
As I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010; West Group)(CIVLIBLIT on WESTLAW), I came across three important post-Iqbal circuit court decisions from the Seventh, Tenth and Eleventh Circuits. I want to share them with you in advance of publication this fall of the 2011 Update.
The Seventh Circuit: Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009)(§ 1983 conspiracy complaint)
The Seventh Circuit, in a thoughtful opinion by Judge Posner, addressed the effect of the plausibility standard of Twombly and Iqbal on § 1983 conspiracy claims against an attorney and therapist accused of conspiring with state actors in connection with the plaintiff mother’s loss of custody of her two children after she was diagnosed with “Munchausen syndrom by proxy.” After analyzing these two Supreme Court decisions, Judge Posner summarized:
In other words, the height of the pleading requirement is relative to the circumstances. We have noted the circumstances (complexity [Twombly] and immunity [Iqbal]) that raised the bar in the two Supreme Court cases. This case is not a complex litigation, and the two remaining defendants do not claim any immunity. But it may be paranoid pro se litigation, arising out of a bitter custody fight and alleging, as it does, a vast encompassing conspiracy; and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.
Judge Posner went on to point out that even before this new plausibility requirement, conspiracy allegations were held to a higher standard and that “mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him or her were not enough.” Here, the plaintiff’s allegations of a conspiracy between government officials and the two private defendants were not sufficient to survive a motion to dismiss, even before Twombly and Iqbal, because they were bare of specifics and vague.
The Tenth Circuit: Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010)(§ 1983 pro se prisoner complaint)
In a pro se prisoner’s § 1983 case, the Tenth Circuit made the following post-Iqbal observations:
Iqbal establishes the importance of context to a plausibility determination. The allegations in Iqbal’s complaint had to be read in light of the events of September 11. Nowhere in the law does context have greater relevance to the validity of a claim than prisoner civil-rights claims. Prisons are a unique environment, and the Supreme Court has repeatedly recognized that the role of the Constitution within their walls is quite limited. … Consequently, a prisoner claim will often not be plausible unless it recites facts that might well be unnecessary in other contexts. For example, as we will discuss more fully below, a prisoner claim may not be plausible unless it alleges facts that explain why the usual justifications for the complained-of acts do not apply.
… One of the chief concerns of critics [of Iqbal] is that plaintiffs will need discovery before they can satisfy plausibility requirements when there is asymmetry of information, with the defendants having all the evidence. But prisoners claiming constitutional violations will rarely suffer from information asymmetry (although that could have been the situation in Iqbal itself). Not only do prisoners ordinarily know what has happened to them; but they will have learned how the institution has defended the challenged conduct when they pursue the administrative claims that they must bring as a prerequisite to filing suit.
The Tenth Circuit then went on to find that several of the plaintiff’s § 1983 First and Eighth Amendment claims were plausible and should not have been dismissed for failure to state a claim, while others were properly dismissed.
The Eleventh Circuit: Randall v. Scott, 610 F.3d 701 (11th Cir. 2010)(qualified immunity)
The Eleventh Circuit had previously addressed the effect of Iqbal on a § 1983 action brought by political protesters against law enforcement defendants who raised qualified immunity as a defense. Keating v. City of Miami, 598 F.3d 753 (11th Cir. 2010). It found in Keating that the plaintiffs’ allegations satisfied both Iqbal’s plausibility standard and its own heightened pleading standard.
But in Randall, a later case brought by a terminated investigator alleging First Amendment retaliation, the Eleventh Circuit declared: “We now say explicitly what Keating implied: whatever requirements our heightened pleading standard once imposed [in cases involving qualified immunity] have now been replaced by those of the Twombly-Iqbal plausibility standard [which applies to all civil actions].”
The Eleventh Circuit continued:
Pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a defense shall now be held to comply with the standards described in Iqbal. 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 be supported by factual allegations.. The district court should assume, on a case-by-case basis, that well pleaded factual allegations are true, and then determine whether they plausibly give rise to an entitlement to relief.
In the case before it, the Eleventh Circuit determined that regardless of pleading standard, the plaintiff’s complaint was properly dismissed by the district court on other grounds: the defendant was entitled to qualified immunity because the relevant First Amendment law was not clearly established at the time of the challenged conduct.