The battle lines of Federal Rule of Civil Procedure 8(a) (2) and the effects on a pro se litigant's ability to survive a motion to dismiss.

Author:Rhodes, Melodee C.
  1. Introduction II. The Development of the Pro Se Frenzy III. The Development of Federal Rule of Civil Procedure 8(a)(2) A. Conley v. Gibson & Bell Atlantic v. Twombly B. Erickson v. Pardus C. Ashcroft v. Iqbal IV. The relationship between Pro Se Litigation and Federal Rule of Civil Procedure 8(a)(2) V. Denial of Due Process and the Role of the Court System A. Labor and Employment Law and the Pro Se Litigant B. Civil Rights Claims and the Pro Se Litigant C. Divorce Law and the Pro Se Litigant VI. Proposed Solution A. Modifying the Federal Rules of Civil Procedure B. State-Wide Programs Should Be Implemented 1. Self-Service Centers 2. Court Personnel 3. Attorneys C. Say "NO" to Pro Se Litigation VII. Conclusion I. INTRODUCTION

    At the core of the American judicial system is the unfettered right to due process and equal protection of the law. (2) Indeed, the Due Process Clause of the Fifth and Fourteenth Amendments contain the constitutional underpinning of our right to access the judicial system. (3) However, the Supreme Court of the United States has yet to interpret the Due Process Clause of the Fifth and Fourteenth Amendment as providing the absolute right to access the courts. (4) In response, most states have enacted a constitutional provision that either expressly, or by interpretation, allows individuals to represent their own causes in the courts of that state. (5)

    Ideally, equal protection of the law entitles an individual to equal justice and the right to access the American court system, notwithstanding their financial status. (6) The painstaking truth of the matter is that the financial status of the aggrieved party does play a vital role in the ability of an individual to successfully maneuver through our adversary system. (7) In particular, pro se litigants, (8) who often do not have the financial means to hire legal representation, are frequently denied the right to proceed through our court system because their complaints fail to allege a "short and plain statement showing that the pleader is entitled to relief." (9)

    In light of the recent decision announced by the Supreme Court of the United States in Ashcroft v. Iqbal, (10) the pleading standard established under Federal Rule of Civil Procedure 8(a)(2) requires that, in order to survive a motion to dismiss, a complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." (11) With respect to pro se plaintiffs, Federal Rule of Civil Procedure 8(a)(2) is unconstitutional because it violates an individual's procedural due process rights by requiring a pleading standard that a layperson finds difficult to satisfy. Even under the less stringent standard announced in Conley v. Gibson, (12) pro se plaintiffs have found it difficult to survive a motion to dismiss. (13) Nevertheless, pro se plaintiffs who do not possess the requisite skill, knowledge, or experience to effectively comply with the requirements of Federal Rule of Civil Procedure 8(a)(2), are allowed to draft and file their own complaints in civil action cases. (14)

    Contrary to numerous opinions, which propose that pro se plaintiffs are granted more leniency in fulfilling the requirements of Federal Rule of Civil Procedure 8(a)(2), an overwhelming majority of their complaints are dismissed for failure to pass muster under the 8(a)(2) standard. (15) This, in turn, could potentially violate a pro se litigant's due process rights because their claims are prematurely dismissed, thus depriving them of the opportunity to be heard before a court of law. Furthermore, this pattern of premature dismissal is prevalent in areas of the law such as labor and employment, civil rights cases, and divorce law. (16)

    Therefore, in order to afford pro se litigants their constitutional due process rights, this Comment proposes that the Federal Rules of Civil Procedure be modified to include guidance for pro se plaintiffs filing a civil complaint or a prohibition against pro se plaintiffs filing their own complaint. (17)

    Part II of this Comment discusses the development of pro se litigation from its historical roots to modern day concepts. (18) Part III addresses the transformation of Federal Rule of Civil Procedure 8(a)(2) through the Court's interpretation in Conley v. Gibson, Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal. (19) Part IV explains the unique relationship between pro se litigation and the Federal Rules of Civil Procedure. (20) Part V examines the tremendous effect of pro se litigation on the court system and highlights areas of the law in which pro se litigants find it extremely difficult to survive a motion to dismiss. (21) Part VI argues for the proposed solution to increase the likelihood that a pro se litigant has the opportunity to have meaningful access to the court system. (22)


    "Historically, the ability in the United States to represent oneself in court dates to the founding of our country." (23) Indeed, the Judiciary Act of 1789 (24) granted litigants "the right to plead and conduct their own case personally in any court of the United States." (25) This privilege continues today under Section 1654 of Title 28 of the United States Code, which provides civil litigants with a statutory right to self representation. (26)

    The number of unrepresented individuals in the court system has continued to persist as a growing phenomenon in America. (27) One study conducted on cases filed in the federal forum found that pro se cases constituted thirty-seven percent of all cases filed. (28) Another study found that overall, pro se filings account for approximately one quarter of all civil cases. (29) Today, in the federal court system, approximately twenty-seven percent of the civil actions filed were by pro se litigants, of which ninety-two percent were prisoner petitions and ten percent were non-prisoner petitions. (30)

    Unfortunately, studies have shown that a majority of pro se litigants represent themselves because they are financially unable to obtain adequate representation. (31) These statistics demonstrate the plain and simple truth that pro se litigants are an imperative component of our adversary system. (32) Therefore, it is inevitable that at some point during the judicial process, a pro se litigant will meet the demise of his or her complaint at the behest of Federal Rule of Civil Procedure 8(a)(2).


    Federal Rule of Civil Procedure 8(a) provides, "a pleading that states a claim for relief must contain" three essential requirements. (33)

    Most importantly to this Comment, Federal Rule of Civil Procedure 8(a)(2) requires a pleading to contain a "short and plain statement showing that the pleader is entitled to relief." (34) There have been several critical United States Supreme Court decisions that have worked to cultivate and define the meaning of 8(a)(2) in the context of a plaintiff's ability to survive a motion to dismiss. (35)


      In 1957, Justice Black delivered the majority opinion in Conley v. Gibson and announced, "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (36)

      Fifty years later, the Supreme Court expressed its desire to rid of the no set of facts language in the 2007 decision of Bell Atlantic Corp. v. Twombly. (37) In Twombly, the Court announced a required "plausibility standard" in order for a plaintiff to effectively comply with 8(a)(2). (38)

      Indeed, Justice Souter writing for the majority held,

      [w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. (39) However, two weeks after the Twombly decision, the Supreme Court issued a decision that dealt specifically with the dismissal of a pro se litigant's complaint for failure to state a claim. (40)


      In Erickson, the Supreme Court appeared to conflict with its holding in Twombly by citing the standard announced in Conley that "[s]pecific facts are not necessary; the [short and plain] statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" (41) Petitioner, William Erickson, brought a pro se [section] 1983 suit against prison medical officials, alleging deliberate indifference to his serious medical needs, in violation of his Eighth Amendment rights. (42) Erickson, who suffered from Hepatitis C, was incarcerated in the Limon Correctional Facility in Limon, Colorado. (43) After complying with the necessary procedures to receive Hepatitis C treatment, he began treatment at the facility, which consisted of administering weekly self-injections with the use of a syringe. (44)

      Soon after Erickson began his treatment, one of the medical syringes became unaccounted for and prison officials held him responsible. (45) Subsequently, Erickson was prohibited from continuing the hepatitis treatment at the facility, and was found in violation of the Colorado Code of Penal Discipline. (46) Erickson filed a complaint against the prison officials alleging his removal from the hepatitis treatment was in violation of Department protocol, "thus endangering [his] life." (47) The District Court in Colorado dismissed Erickson's complaint and he appealed to the United States Court of Appeals for the Tenth Circuit, which affirmed the lower court. (48) The Supreme Court of the United States vacated the Court of Appeals judgment and went on to conclude that the Court of Appeals' departure from the liberal pleading standards set forth by Rule 8(a)(2)...

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