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In Iqbal, the Supreme Court noted that Twombly had already “retired” the Conley no-set-of-facts standard for determining whether a complaint states a claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009). But how different are Twombly’s “plausibility” and Conley’s “no-set-of-facts” standards in practice? Although the outcomes in Twombly and Iqbal would have differed under Conley’s standards (one need look no further than the district court decisions in both cases that applied Conley to find that the respective complaints survived motions to dismiss in order to see this is so), the Supreme Court also decided another FRCP 12(b)(6) case by summary order in the interim.
In Erickson v. Pardus, 551 U.S. 89 (2007), a prisoner filed a pro se complaint alleging Eighth Amendment violations because prison officials, believing that he was using medical syringes for the injection of illegal drugs, removed his access to syringes and therefore removed him from his hepatitis C medication. Id. at 92.
The Court summarized his complaint as follows:
Indicating it was “undisputed” that he had hepatitis C, that he met the Department’s standards for treatment of the disease, and that “furtherance of this disease can cause irreversible damage to [his] liver and possible death,” petitioner alleged that “numerous inmates” in his prison community had died of the disease and that he was “in imminent danger” himself “due to [the Department’s] refusal to treat him.”
Id. At issue was whether the prisoner sufficiently pled the harm necessary to allege violations of the Eighth Amendment. The Court of Appeals found he had not, noting, “petitioner had made ‘only conclusory allegations to the effect that he has suffered a cognizable independent harm as a result of his removal from the [hepatitis C] treatment program.’” Id. at 92-93 (quoting Erickson v. Pardus, 198 F. App'x. 694, 698 (10th Cir. 2006)).
In a per curiam opinion for seven of the justices, the Court reversed, suggesting that Erickson’s complaint surpassed the low bar set at this stage of litigation:
The complaint stated that Dr. Bloor’s decision to remove petitioner from his prescribed hepatitis C medication was “endangering [his] life.” 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. This alone was enough to satisfy Rule 8(a)(2).
In so doing, the Court emphasized that the Federal Rules, even post-Twombly, reflected a notice-pleading regime. The Court explained, “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. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Given this language, did Twombly retire the approach to pleading in Conley as Iqbal suggests? How far a departure was Twombly originally intended to be?
Alternatively, should the Erickson order be understood instead as limited to complaints brought pro se (indeed, the same context in which Dioguardi arose)? See Erickson, 551 U.S. at 94 (concluding that the lower court’s “departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced” because documents filed pro se should be construed liberally). Do Erickson, Twombly, and Iqbal create a two-tiered pleading regime: one standard for plaintiffs proceeding pro se, and one for everybody else?
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