Commercial Litigation and Arbitration

Supreme Court on Pleading Standards — Take Two

Just how extensively does Bell Atlantic (see our post of May 27, 2007) change the law of notice pleading? In a second pleading opinion issued per curiam last week in a pro se prisoner case, Erickson v. Pardus, 2007 WL 1582936 (U.S. June 4, 2007), the Supreme Court sounded a permissive chord. In his complaint, the prisoner plaintiff alleged that the physician provided by the prison had ‛removed [him] from [his] hepatitis C treatment“ in violation of Corrections Department protocol, ‛thus endangering [his] life.“ He attached to the Complaint grievance forms in which he claimed that he was suffering from ‛continued damage to [his] liver“ as a result of the failure to treat. The Complaint requested damages and an injunction requiring that the Corrections Department treat petitioner for hepatitis C ‛under the standards of the treatment [protocol] established by [the Department].“ The Tenth Circuit affirmed a magistrate judge’s determination dismissing the complaint pursuant to Fed.R.Civ.P. 12(b)(2), holding that Complaint failed to set forth a factual showing of harm sufficiently to satisfy Rule 8(a)(2): ‛[I]n the proceedings before the district court and this court, plaintiff has made only conclusory allegations to the effect that he has suffered a cognizable independent harm as a result of his removal from the Interferon/Ribavirin treatment program“ (2006 WL 2640394, at *4). The Supreme Court summarily vacated the Tenth Circuit decision, observing:

Federal Rule of Civil Procedure 8(a)(2) requires only ‛ a short and plain statement of the claim showing that the pleader is entitled to relief.“ Specific facts are not necessary; the statement need only ‛‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’“ Bell Atlantic Corp. v. Twombly, 550 U.S. ----, ----, 127 S.Ct. 1955, --- L.Ed.2d ----, ---- - ---- (2007) (slip op., at 7-8) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In addition, when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Bell Atlantic Corp., supra, at 1955, 127 S.Ct. 1955 (slip op., at 8-9) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

There appear to be three primary differences between Bell Atlantic and Erickson.

First, the Supreme Court stressed the pro se status of the plaintiff in Erickson — a far cry from the highly sophisticated antitrust counsel in Bell Atlantic:

The Court of Appeals' departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigation's outset, without counsel. A document filed pro se is ‛ to be liberally construed,“ Estelle [v. Gamble], 429 U.S. [97] at 106, 97 S.Ct. 285, and ‛ a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,“ ibid. (internal quotation marks omitted). Cf. Fed. Rule Civ. Proc. 8(f) (‛ All pleadings shall be so construed as to do substantial justice“ ).

There is an argument that the Court is applying a more lenient (euphemism for ‛double“) standard in pro se cases, even as it explains why it is not.

Second, the pleading issue in Erickson was harm, not liability. Under Rule 8(a)(2), only ‛a short and plain statement of the claim showing that the pleader is entitled to relief“ is required:

The complaint stated that Dr. Bloor's decision to remove petitioner from his prescribed hepatitis C medication was ‛ endangering [his] life.“ Petitioner's Complaint 2. It alleged this medication was withheld ‛shortly after“ petitioner had commenced a treatment program that would take one year, that he was ‛still in need of treatment for this disease,“ and that the prison officials were in the meantime refusing to provide treatment. Id., at 3, 4. This alone was enough to satisfy Rule 8(a)(2).

In other words, ‛while ‛detail[ed]“ factual allegations are not required, ‛Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief,“ and this necessitates ‛some factual allegation in the complaint....“ Bell Atlantic, 2007 U.S. LEXIS 5901, at *22 n.3.

Third, Erickson was a simple case, Bell Atlantic a complicated one. What more did the defendants in Erickson really need to know? Not much.

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