IV. Pleading and Filing the Section 1983 Lawsuit

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

IV. PLEADING AND FILING THE SECTION 1983 LAWSUIT

A. Federal Rule 8: Plausibility under Iqbal and Twombly

Federal Rule of Civil Procedure 8, which sets forth the general rules of pleading, requires that a claim for relief contain only "a short and plain statement of the claim showing that the pleader is entitled to relief."⁴⁰ Prior to 2007, the Supreme Court's leading case on pleading standards, Conley v. Gibson, held that federal pleadings need only give the opposing party "fair notice" of the basis for the claim, and that claims should not be dismissed unless it appears beyond doubt that the plaintiff can prove "no set of facts" that would entitle the plaintiff to relief.⁴¹ The Supreme Court had even rejected attempts by lower courts to impose heightened pleading requirements,⁴² including in § 1983 claims specifically.⁴³

In 2007, however, the Supreme Court changed course. In Bell Atlantic Corp. v. Twombly,⁴⁴ the Court held that plaintiffs must plead "enough facts to state a claim to relief that is plausible on its face."⁴⁵ The Court stated that the "no set of facts" standard from Conley v. Gibson, which had reigned for 50 years, had "earned its retirement."⁴⁶ Applying this principle to the antitrust claims alleged in Twombly, the Court concluded that plaintiffs "have not nudged their claims across the line from conceivable to plausible" and thus dismissed the complaint.⁴⁷

Early uncertainty over the scope of Twombly, including speculation that it would be limited to antitrust claims, was quickly put to rest. Two years later, in Ashcroft v. Iqbal,⁴⁸ the Court applied the rule announced in Twombly to a civil rights case⁴⁹ and made clear that the new plausibility standard applied to all federal claims. The Court explained that "[t]wo working principles underlie our decision in Twombly."⁵⁰ First, although a court must accept as true all factual allegations in a complaint, the same does not apply to legal conclusions: "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."⁵¹ Second, the Court expanded on Twombly's plausibility requirement:

The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"⁵²

"Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."⁵³

Much has been written about the new regime of pleading standards set forth in Iqbal and Twombly. Scholars and practitioners have largely criticized the Court for failing to provide a workable standard and for erecting a plausibility test that turns a judge's subjective opinion about whether allegations of misconduct are believable.⁵⁴ Some state courts have even explicitly disagreed with Iqbal and Twombly, holding that the plausibility standard does not apply to their identical state court pleading rules.⁵⁵ Studies are mixed as to whether Iqbal and Twombly have, in fact, led to significant changes in the dismissal rates of complaints.⁵⁶ One thing is clear, however: under Iqbal and Twombly, plaintiffs must be very careful to plead their claims with as much factual specificity as possible, paying attention that each element of each claim is supported by factual, not merely legal, assertions.

A recent decision in the Eleventh Circuit provides a cautionary tale. In Franklin v. Curry,⁵⁷ a woman was sexually assaulted by a jail guard while in pretrial detention and brought suit against the guard as well as supervisory staff in the jail. Citing Iqbal and Twombly, the court dismissed all claims against the supervisory staff, reversing the district court, on the basis that all of the plaintiff's allegations against those supervisors were legal conclusions that could not be credited:

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.⁵⁸

The court does not explain why an allegation that a defendant "knew" something should be considered a legal conclusion, rather than a factual assertion. It is clear, however, that the court wanted a much more detailed explanation of facts that would support the finding that the supervisors had knowledge of the guard's risk for assault. The plaintiff had provided some facts that could likely have helped show that the supervisors were aware of the risk—that the guard had previously sexually assaulted another female detainee and had sexual relations with a third female detainee—but the plaintiff had not taken the additional step of explaining how the supervisors knew of those facts, and then how they disregarded the risks.⁵⁹ The court cataloged many other deficiencies in the pleading:

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 but alleges 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. 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.⁶⁰

Whether Franklin had access to any of these facts at the time she filed her pleading is a separate question—but one that obviously does not concern the court.

Not all post-Iqbal and post-Twombly decisions are quite as harsh or require as extensive factual pleading as Franklin v. Curry. And courts frequently allow litigants the opportunity to amend a complaint to cure deficiencies under Federal Rule of Civil Procedure 15(a).⁶¹ But as it should be clear, to avoid what is now a heightened risk of dismissal of the complaint, it is imperative for counsel to conduct extensive factual research before filing suit and to include as many relevant facts in a pleading as possible.

B. Specific Issues Post-Twombly/Iqbal

1. Heightened Pleading Requirements?

Prior to Twombly and Iqbal, several circuits had created heightened pleading standards that applied to certain § 1983 claims, such as cases raising immunity issues and Monell claims. Although the Supreme Court rejected heightened pleading standards in Monell claims,⁶² some courts of appeals, including the Eleventh Circuit, still persisted in applying heightened pleading requirements in § 1983 cases raising immunity defenses.

Even post-Twombly and post-Iqbal, the Eleventh Circuit continued to cite its own precedent applying a heightened pleading standard in cases raising qualified immunity.⁶³ A subsequent Eleventh Circuit case, however, Randall v. Scott,⁶⁴ clarified that the plausibility standard that applied to all claims had now replaced the circuit's heightened-pleading requirements in qualified immunity cases. The fact that the court felt no need to continue applying its heightened-pleading requirement, in light of Iqbal and Twombly, is itself evidence of the impact those cases have had on plaintiffs' complaints.

In addition, two particular rules may require pleading with additional specificity. In Crawford-El v. Britton,⁶⁵ in which the Supreme Court rejected the lower circuit's attempts to enact a heightened proof requirement for claims involving state of mind, the Court emphasized that defendants had other tools to require plaintiffs to supply additional factual information before unlocking costly discovery: Under Federal Rule of Civil Procedure 7(a), an individual defendant may ask the Court to order the plaintiff to reply to her assertion of qualified immunity, and Federal Rule of Civil Procedure 12(e) allows a defendant to move for a more definite statement of the plaintiff's claim.⁶⁶ Under either rule, the plaintiff could be required to plead "specific, non-conclusory factual allegations" to support his claims.⁶⁷ These procedures remain available post-Twombly and post-Iqbal, although defense counsel would likely prefer to file a motion to dismiss rather than provide the plaintiff the opportunity to clarify and strengthen her pleadings.

2. Pleading "on Information and Belief"

When a plaintiff does not have direct knowledge of a fact, such as instances in which facts are uniquely within the possession or control of a defendant, or a plaintiff has some basis to infer a fact to be true, a plaintiff could plead the fact "on information and belief." Courts have reached different opinions as to what weight should be given to facts pleaded "on information and belief" post-Iqbal and post-Twombly. For example, in Arista Records, LLC v. Doe 3...