Defense Digest

Squaring The Circle:  The Third Circuit Mandates Pre-Answer Procedures For Qualified Immunity Challenges To Factually Vague Complaints

A long-standing dilemma of civil rights defense lawyers has been how to argue federal qualified immunity in a motion to dismiss where the complaint is vague in its factual allegations but is nevertheless sufficient to meet federal court notice pleading standards. The Third Circuit Court of Appeals answered that question in Thomas v. Independence Twp., 463 F.3d 285 (2006). As the Thomas opinion recognized, "the complaint in this case presents a textbook example of a pleading as to which a qualified immunity defense cannot reasonably be framed . . . . This case, perhaps better than any other, illustrates the incompatibility between the concept of notice pleading and the qualified immunity doctrine, and the resulting quandary faced by defendants pleading the defense." Although the panel adhered to a strict interpretation of federal notice pleading, it formulated new, mandatory procedures to protect individual defendants asserting qualified immunity in a pre-answer setting.

Under well-established Supreme Court and Third Circuit case law, an individual governmental official sued in an individual capacity under 42 U.S.C. § 1983 for alleged constitutional violations may invoke the doctrine of federal qualified immunity with regard to such claims in a Fed. R. Civ. P. 12(b)(6) motion to dismiss, and a denial of qualified immunity invoked in such a motion to dismiss is immediately appealable as a pure question of law. E.g., Behrens v. Pelletier, 516 U.S. 299, 308 (1996); McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir. 2001). A court engaging in qualified immunity analysis in the context of a motion to dismiss must first ascertain whether the complaint adequately states a claim that an individual defendant has committed a constitutional violation. If the complaint states such a claim, the court must then consider whether the complaint adequately states a claim of violation of clearly established constitutional law against the individual defendant. Siegert v. Gilley, 500 U.S. 226, 232 (1991).

The Supreme Court has held that federal notice pleading criteria apply to actions brought against political subdivisions and their officials sued in an official capacity under 42 U.S.C. § 1983. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993). However, the unanimous opinion in Leatherman expressly reserved the question of "whether our qualified immunity jurisprudence would require a heightened pleading in cases involving individual government officials." The Supreme Court has never clearly resolved the issue left open by the Leatherman reservation.

In Thomas, the individual defendants asked the Third Circuit Court of Appeals to answer the question posed by the Leatherman reservation. The Third Circuit responded by holding that notice pleading applies even in the context of a motion to dismiss arguing qualified immunity. In so holding, the court relied on Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), even though Swierkiewicz was a Title VII case (and, accordingly, did not involve the doctrine of federal qualified immunity) and even though the complaint in Swierkiewicz involved much more detailed factual pleading than the complaint in the Thomas case.

The individual defendants relied upon the following principle repeatedly stated by the Supreme Court: "Unless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." Behrens, 516 U.S. at 306 (quoting and citing, with approval, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). The Third Circuit rejected this argument, implicitly holding that the Mitchell-Behrens principle was dictum for those cases.

The individual defendants also argued that the complaint in Thomas did not even meet notice pleading standards, citing several Third Circuit cases, including (as supplemental authority and in oral argument) the recently decided case of Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005). There has been a notorious inconsistency among Third Circuit panels regarding the requirements of notice pleading, and the Thomas panel appeared to take the position of the more liberal notice pleading cases (contrary to Evancho) in holding that the subject complaint, with some exceptions, stated constitutionally cognizable claims against the individual defendants, noting, however, that this conclusion was "a close call" for this case.

Nevertheless, the Thomas opinion recognized that a lack of factual specificity in a complaint prevents an individual defendant from framing a fact-specific qualified immunity defense, which, in turn, precludes the district court from engaging in a meaningful qualified immunity analysis. The court held that the appropriate remedy is the granting of a defense motion for a more definite statement under Fed. R. Civ. P. 12(e). Even when a defendant does not formally move for a more definite statement, the district court has the discretion to demand more specific factual allegations in order to protect the substance of the qualified immunity defense and to avoid subjecting government officials who may be immune from suit to needless discovery and the other burdens of litigation. The Third Circuit, accordingly, vacated the district court's order insofar as it related to qualified immunity and remanded to the district court with instructions to order the plaintiffs to file a more definite statement.

The question of the interrelationship of a Fed. R. Civ. P. 12(e) motion for more definite statement and a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted presents troublesome questions in a qualified immunity context because a denial of a Rule 12(b)(6) qualified immunity motion to dismiss is immediately appealable, whereas a denial of a Rule 12(e) motion for more definite statement is not. Moreover, the effect of Rule 12(g) and 12(h)(2) is that a Rule 12(b)(6) motion is waived if not combined with a Rule 12(e) motion. Although the defense of failure to state a claim could nevertheless be asserted in a motion for judgment on the pleadings (Rule 12(h)(2)), there exists no case law providing that an individual defendant may take an interlocutory qualified immunity appeal from a denial of a qualified immunity motion for judgment on the pleadings. By filing a Rule 12(e) motion without a Rule 12(b)(6) motion, the individual defendant thus risks losing a right to an interlocutory appeal from a denial of a motion to dismiss—a very important right considering that the individual defendant would consequently be subject to discovery contrary to the principles of qualified immunity as articulated by the Supreme Court in a motion to dismiss context. In an apparent attempt to resolve this conundrum, the Thomas panel formulated a novel procedure. A defendant who makes a motion for a more definite statement under Rule 12(e) may join that motion with a Rule 12(b)(6) motion to dismiss asserting the qualified immunity defense, which should be held in abeyance during the pendency of the Rule 12(e) motion. If the plaintiff provides a more definite statement in compliance with the district court's order, the defendant may, upon leave of the court, supplement the Rule 12(b)(6) motion to dismiss by framing the qualified immunity argument within the factual context of the case. Until the Rule 12(b)(6) motion is resolved, all discovery must be stayed.

In Thomas v. Independence Township, the Third Circuit Court of Appeals squared the circle of the tension between notice pleading and qualified immunity by formulating a procedure that should be of great value to individual defendants asserting pre-answer qualified immunity challenges to factually vague complaints.

* Alan is an associate in our Pittsburgh, Pennsylvania office. He can be reached at (412) 803-1196 or aejohnson@mdwcg.com.  He represents the defendants in Thomas v. Independence Township, and he briefed and argued the qualified immunity appeal on behalf of the individual defendants in this case.