July 28, 2011
Ninth Circuit Minces No Words on Supreme Court’s Pleading Jurisprudence
Judge Fletcher of the Ninth Circuit recently upheld a pro se prisoner’s complaint for supervisory liability for deliberate indifference to the dangers of violent attack in county jail. Starr v. Baca, 2011 WL 2988827 (9th Cir. July 25, 2011).
The court traced the history of notice pleading from 1938, and then continued:
In several recent cases, without benefit of statute, the Supreme Court has applied what appears to be higher pleading standard under Rule 8(a) [citing Dura Pharmaceuticals, Twombly, and Iqbal]. . . . In two cases decided during roughly the same period, the Court appears to have applied the original, more lenient version of Rule 8(a) [citing Swiekiewicz and Erickson]. . . .
The juxtaposition of Swierkiewicz and Erickson, on the one hand, and Dura, Twombly, and Iqbal, on the other, is perplexing. Even though the Court stated in all five cases that it was applying Rule 8(a), it is hard to avoid the conclusion that, in fact, the Court applied a higher pleading standard in Dura, Twombly and Iqbal.
But whatever the difference between these cases, we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. . . .
Viewed in the light of all of the Supreme Court's recent cases, we hold that the allegations of Starr's complaint satisfy the standard of Rule 8(a). We do not so hold merely because Starr's complaint, like the complaint in Erickson, alleges deliberate indifference in violation of the Eighth and Fourteenth Amendments. Rather, we so hold because his complaint complies with the two principles just stated.
Judge Trott, relying primarily on Iqbal, dissented.