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More on Yesterday’s Decision in No. 06-7317, Erickson v. Pardus

Two weeks ago, in Bell Atlantic v. Twombly, the Court held that a complaint alleging a violation of the Sherman Act should be dismissed for failure to state a claim when it alleged a conspiracy but failed to specifically allege “some factual context suggesting agreement, as distinct from identical, independent action.” In so holding, the majority rejected fifty-year-old language in the Court’s opinion in Conley v. Gibson regarding “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.” The “no set of facts” language, Justice Souter’s majority opinion in Twombly explained, was merely “an incomplete, negative gloss on an accepted pleading standard” that “described the breadth of opportunity to prove what an adequate complaint complains”; it was not, he emphasized, “the minimum standard of adequate pleading to govern a complaint’s survival.” Commentators mused about Twombly’s impact: our own Marty Lederman queried here whether Twombly “signal[ed] the rejection of notice pleading” altogether, Scott Dodson raised the prospect that “the Court [was] saying that Rule 8 requires ‘notice-plus’ pleading”; and Michael Dorf described a “rough consensus” “that there’s no way to understand the decision if it doesn’t apply a heightened pleading standard.” By contrast, Einer Elhauge (at the Volokh Conspiracy) dismissed the case as “quite insignificant,” while Richard Samp posited that “Twombly does not turn away from notice pleading.”

Yesterday the Court issued a per curiam summary reversal in No. 06-7317, Erickson v. Pardus, that (as Paul Wolfson notes here) seemed to make clear what Justice Souter reiterated in Twombly: the Court in that case was not imposing a heightened pleading standard, but instead requiring “only enough facts to state a claim to relief that is plausible on its face.”

Petitioner William Erickson (who represented himself below and before the Court) was incarcerated in a Colorado state prison, where he began to undergo treatment for hepatitis C. When prison officials terminated his treatment, Erickson filed a complaint alleging (inter alia) that the prison doctor had violated his right under the Eighth Amendment to be free from cruel and unusual punishment. The district court dismissed Erickson’s complaint on the ground that he had failed to allege that the doctor’s actions had caused him “substantial harm.” The Tenth Circuit affirmed, explaining that Erickson had provided “only conclusory allegations to the effect that he has suffered a cognizable independent harm as a result of his removal from the treatment program.”

Yesterday the Supreme Court reversed. The Court explained that “[i]t was error for the Court of Appeals to conclude that the allegations in question, concerning harm caused petitioner by the termination of his medication, were too conclusory to establish for pleading purposes that petitioner had suffered a ‘cognizable independent harm’ as a result of his removal from the hepatitis C treatment program.”

Explaining that “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” and – notably citing Twombly – that “[s]pecific facts are not necessary” because “the statement need only give the defendant fair notice of what . . . the claim is and the grounds upon which it rests” (internal quotations omitted), the Court concluded that the Tenth Circuit’s holding “departs in so stark a manner from” that pleading standard as to warrant review. Addressing the allegations in Erickson’s complaint, the Court found that petitioner’s allegations that the decision to remove him from his medication “endanger[ed] his life,” that the medication was withheld “shortly after” treatment began, that petitioner was “still in need of treatment for this disease,” and that “prison officials were in the meantime refusing to provide treatment” were “alone enough to satisfy Rule 8(a)(2)” – presumably by providing, as Twombly emphasized, sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level.” (Moreover, the Court noted, the Tenth Circuit’s “departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case” because Erickson was proceeding pro se.)

In conclusion, the Court cautioned that “[w]hether petitioner’s complaint is sufficient in all respects is a matter yet to be determined . . . . In particular, the proper application of the controlling legal principles to the facts is yet to be determined.” But it reiterated that Erickson’s case “cannot . . . be dismissed on the ground that [his] allegations of harm were too conclusory to put these matters in issue.”

By contrast, the Section 1 claim at issue in Twombly relied primarily on allegations of parallel behavior by major telecommunications providers, which the plaintiff-respondents alleged was consistent with an anticompetitive motive. Because the plaintiff-respondents in Twombly had failed to provide, however, the additional facts necessary to “nudge[] their claims across the line from conceivable to plausible” – that is, to plausibly suggest a conspiracy – the Court held that “their complaint must be dismissed.”

Justice Scalia would have denied the petition for certiorari in Erickson altogether. Justice Thomas indicated, in a brief dissent, that he would have affirmed the Tenth Circuit’s opinion. First, he reiterated his belief that the Eighth Amendment applies only to “injuries relating to a criminal sentence.” But, he continued, even applying what he regards as the Court’s “flawed Eighth Amendment jurisprudence,” he would “draw the line at actual, serious injuries and reject the claim that exposure to the risk of injury can violate the Eighth Amendment.”

So what exactly does this mean? Erickson seems to confirm that the Court meant exactly what it said in Twombly: although Twombly made clear what the Court means by “notice pleading” – viz., to survive a motion to dismiss, a plaintiff cannot rely solely on generalized allegations – it doesn’t reject “notice pleading” altogether. Precisely how this will play out in different areas of the law and with different kinds of claims will (as Richard Samp discusses here) remains to be seen.

One final note is that of timing. Erickson was first distributed for conference at the beginning of January, but the Court’s consideration of the petition was delayed for several months after the Court called for a response from the respondent prison officials and then called for the record. The docket does not reflect any action on the case for two months after the record was received on March 7; the case was then distributed for the May 10 conference, after which it was relisted three times. The opinion was finally released two weeks after the Court’s opinion in Twombly.

It seems likely that the Court initially identified Erickson as a case that should be held and potentially remanded in light of Twombly. Then, in early May (after the Twombly opinion was in circulation), it decided to summarily reverse in Erickson, likely in order to counteract any impression that could arise that Twombly was intended to set a particularly high pleading standard.