PLAINTIFF’S REPLY TO DEFENDANT’S
MOTION TO DISMISS AMENDED
COMPLAINT PURSUANT TO FRCP
RULE 12(b)(6) AND 12(e); MEMORANDUM OF LAW

Defendant has continually sought to avoid a presentation in this matter based upon the facts and seeks now to dismiss plaintiff’s Amended Complaint which has been submitted in accordance with the prior direction of this Court. The question is whether in this matter, commenced under 42 U.S.C. sec. 1983, there is any type of heightened standard of pleading.

The heightened pleading standard requires plaintiffs in civil rights actions to craft their complaints with factual specificity far in excess of the minimal specificity required by the general notice pleading standard in the Federal Rules of Civil Procedure. For example, Rule 8(a) of the Federal Rules of Civil Procedure provides that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and Rule 9(b) of the Federal Rules of Civil Procedure provides in pertinent part, "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Rule 9 also provides that malice, intent, knowledge and other conditions of mind may be averred generally. Neither Rule 8, Rule 9, nor any other provisions of the Federal Rules of Civil Procedure mentions a heightened pleading standard established by the federal courts is clearly a distinct departure from the pleading requirements under the Federal Rules of Civil Procedure/

In 1993, in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517, 8 I.E.R.Cas. (BNA) 428, 25 Fed.R.Serv.3d (LCP) 1 (1993), the Supreme Court ruled that heightened pleading was not to be applied in civil rights cases brought against municipalities under Title 42 U.S.C.A. sec. 1983 because, among other reasons, municipalities were not entitled to immunity.

The Civil Rights Act of 1871 was codified as 42 U.S.C.A. sec. 1983. Under this statute plaintiffs may bring a suit for damages for violation of their constitutional rights against government agents acting "under color of state law." To establish a prima facie case, plaintiffs must allege that they were deprived of a federally protected right by the defendant, and that the defendant’s actions were taken under color of state law.

A plaintiff in an action under Section 1983 may sue the governmental entity or the municipality itself, in addition to or instead of suing individual agents in their official and/or individual capacities. A municipality may be named as a defendant in a civil rights action under 42 U.S.C.A. sec. 1983 because, as the Supreme Court stated in Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, 17 Fair Empl.Prac.Cas. (BNA) 873, 16 Empl.Prac.Dec. (CCH) 8345 (1978), a municipality is a "person" under Section 1983. The court in Monell held that a municipality was a "person" under Section 1983 and that therefore both a city government and its officials in their official capacities could be directly sued for monetary, declaratory, or injunctive relief for violation of a plaintiff’s constitutional rights on the basis of an alleged unconstitutional action that implemented or executed a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that entity’s officers. The Court in Monell reversed its earlier holding in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), where the court had held that a municipality was not a "person" under Section 1983.

A local government can also be sued for constitutional deprivations arising from a municipal custom even if the custom has not received formal approval through the body’s official decision-making channels.

The Supreme Court further commented on municipal liability in Owen v. City of Independence, MO, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), reh’g denied, 446 U.S. 993, 100 S.Ct. 2979, 64 L.Ed.2d 850 (1980), stating that municipal corporations did not enjoy qualified immunity under Section 1983 flowing from their constitutional violations, and that municipalities could not assert the good faith of their officers as a defense to such liability.

In some ways the heightened pleading requirements in actions under 42 U.S.C.A. section 1983, appear to be in conflict with the Rules of Civil Procedure, which mandate a general notice pleading standard for plaintiffs in crafting their complaints in civil actions. Rule 8(a)(2) of the Federal Rules of Civil procedure provides that a complaint shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This general notice pleading standard had been unambiguously interpreted by case law. In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, 9 Fair Empl.Prac.Cas. (BNA) 439, 1 Empl.Prac.Dec. (CCH) 9656 (1957), the Supreme Court articulated its interpretation of the unambiguous language of Rule 8(a)(2): the plaintiff is merely required to give the defendant fair notice of the claim and the grounds upon which that claim is based. The Court in Conley noted further that the Federal Rules of Civil Procedure do not require claimants to set out in detail the facts upon which they based their claim, but merely a short and plain statement of the claim that will give the defendant fair notice. As to overcoming a motion under Rule 12(b)(6), i.e., a motion to dismiss for failure to state a claim upon which relief can be granted, the Court in Conley opined that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt to the court that the plaintiff could prove no set of facts in support of the claim entitling the plaintiff to relief. The Court in Conley explained further that such simplified notice pleading was made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Federal Rules of Civil procedure to help define the issues more narrowly.

In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, supra, the Supreme Court ruled that heightened pleading is not to be applied in civil rights cases brought under 42 U.S.C. section 1983 against municipalities or government officers in their official capacity because municipalities are not immune from suit under 42 U.S.C.A. section 1983, and the courts since then have reached the same conclusion.

The United States Supreme Court, in Leatherman, supra, held that heightened pleading was not to be applied in civil rights cases brought against municipalities in actions under 42 U.S.C.A. section 1983, and that a federal court could not apply a "heightened pleading standard," more stringent than the usual pleading requirements, in civil rights cases alleging municipal liability under Section 1983. The petitioners in Leatherman were homeowners who filed suit under Section 1983 alleging that local officials, acting in their official capacities, and county and municipal corporations violated the petitioners’ constitutional rights under the Fourth Amendment in searching their homes for drugs. The district court dismissed the case for failure of the petitioners to meet the heightened pleading standard for municipal liability, and the court of appeals affirmed. The Supreme Court reversed. In its opinion, the Supreme Court cited Monell v. Dept. of Social Services of the City of New York, supra, for the proposition that a municipality could not be held liable under Section 1983 on a respondeat superior theory. The Court cited both Monell and Owen v. City of Independence, MO, supra, for the proposition that municipalities enjoyed neither absolute nor qualified immunity from Section 1983 suits. The Court stressed the crucial distinction between certain government officials, who could assert the qualified immunity defense, and municipalities, which did not enjoy immunity from suit under Section 1983, and could not be held liable under Section 1983 unless a municipal policy or custom caused the constitutional injury. The Court further stated that it found the heightened pleading standard to be inconsistent with the liberal system of notice pleading established by the Federal Rules of Civil Procedure. In particular, the Court noted that heightened pleading was not consistent with Rule 8(a)(2) of the Federal Rules of Civil Procedure, which mandates that a complaint must merely contain "a short and plain statement of the claim showing that the pleader is entitled to relief," nor with Conley v. Gibson, supra, which supports Rule 8(a)(2), nor with Rule 9(b), which states that all averments of fraud or mistake must be stated with particularity. The Court noted that, if Rule 8 or 9 were rewritten, claims against municipalities might require particularity, but until that time litigants would have to rely on summary judgment and controlled discovery to week out unmeritorious claims as soon as possible.

Based upon the foregoing, defendant’s Motion should be denied.

Respectfully submitted,
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Attorney for Plaintiff