Nahmod Law

Suppose a plaintiff decides to file his or her section 1983 complaint in state court, as permitted by the Supremacy Clause. Suppose further that the state court has a very pro-plaintiff pleading standard, which the plaintiff’s section 1983 complaint satisfies. The defendants choose to remove to federal court under 28 U.S.C. section 1441 (all defendants must agree to removal). After removal, does the plaintiff’s section 1983 complaint have to comply with the heightened federal court pleading standard of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)?

Recall that before Iqbal, federal courts were notice pleading jurisdictions. After Iqbal, however, the pleading standard is plausibility: the complaint must contain enough facts to state a claim that raises the right to relief above the speculative level. Otherwise, the complaint is dismissed.

According to the Fifth Circuit, the hypothetical plaintiff’s section 1983 complaint, now in federal court, must satisfy Iqbal‘s plausibility standard.

In Pena v. City of Rio Grande, 2018 WL 386661 (5^th Cir. 2018), the Fifth Circuit addressed  the question of whether and when Iqbal’s plausibility standard applies to section 1983 actions filed initially in state court and then removed to federal court. The plaintiff sued a city and police officers in Texas state court, alleging excessive force. The defendants moved to dismiss and for judgment on the pleadings. After defendants removed to federal court, the plaintiff sought leave to amend to satisfy the federal pleading standard. The district court looked to the plaintiff’s second motion to amend and ruled that the federal pleading standard was not satisfied. It accordingly dismissed the claims against the various defendants.

On appeal, the Fifth Circuit rejected the plaintiff’s argument that F.R.C.P. Rule 8 does not apply to filings before removal. The court observed that where, as in this case, defendants challenge the pleadings in federal court, the federal pleading standard applies. Here, the plaintiff satisfied the allegation of injury prong against the police officers but did not plead facts that plausibly indicated that the officers’ conduct was objectively unreasonable. As to the city, the plaintiff did no more than allege the specific incident in which the plaintiff was involved. Further, the plaintiff did not plausibly allege the policymaker prong for local government liability. The same was true for plaintiff’s failure to train theory.

Comment

Section 1983 plaintiffs have the option for filing initially either in state court or federal court. This decision is based on various strategic considerations such as the choice of judge, the strength of pendent state claims, Eleventh Amendment immunity, the need for a speedy determination, parity, sympathy, hostility and competence. However, if they file in state court, the defendants, for their own strategic reasons, may decide to remove to federal court. If they do so, Pena indicates that they will have the benefit of Iqbal‘s heightened pleading requirement in federal court, even where the plaintiff’s section 1983 complaint satisfied the pleading requirement of the state court where the complaint was initially filed.

For much more on filing section 1983 claims in state court, and on Iqbal in the federal courts, see Chapter 1 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2017).

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