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Thomas v. Adams

United States District Court, D. New Jersey

October 20, 2014

THADDEUS JAMES THOMAS, Plaintiff,
v.
SHANTAY BRAME ADAMS, et al., Defendants. RONALD NASH, Plaintiff,
v.
CHRIS CHRISTIE et al., Defendants

October 17, 2014

Page 553

For Thaddeus James Thomas, Plaintiff: Lawrence S. Lustberg, Esq., Gibbons P.C., Newark, New Jersey.

For Ronald Nash, Plaintiff: Michael R. Yellin, Esq., Cole, Schotz, Meisel, Forman & Leonard, P.A., Hackensack, New Jersey.

For Christopher J. Christie, Paula T. Dow, Gary M. Lanigan, Jennifer Velez, John Main, Jonathan Poag, Merrill Main, Shantay Braim Adams and Jackie Ottino, Defendants: David L. Dacosta and Daniel M. Vannella, Esqs., Office of the New Jersey Attorney General, Department of Law & Public Safety and R.J. Hughes Justice Complex, Trenton, New Jersey.

Page 554

OPINION APPLIES TO BOTH ACTIONS

DICKINSON R. DEBEVOISE, United States Senior District Judge.

Moving to dismiss Plaintiffs claims, pursuant to Rule 12(b) of the Federal Rule of Civil Procedure, Defendants essentially maintain that Plaintiffs failed to state a plausible claim against them simply because Defendants are high-ranking supervising officials, and Plaintiffs' facts lack the particularities of Defendants' decision-making process and actions. This Court disagrees and will deny Defendants' motions, in part, and grant them in part.

I. BACKGROUND

Both Plaintiffs are civilly committed sexually violent predators (" SVPs" ) confined under the New Jersey Sexually Violent Predator Act (" NJSVPA" ), N.J. Stat. Ann. § 30:4-27.24. Both are now housed at the Special Treatment Unit (" STU" ) of the East Jersey State Prison (" EJSP" ). See County of Hudson v. State Dep't of Corr., (N.J. S.Ct. App.Div. Apr. 22, 2009).[1] Prior to being confined at the EJSP, the SVPs, Plaintiffs included, were confined at a Hudson County facility: at Kearny. See id. at *2-4. Since the events underlying the SVPs' transfer from Kearny to the EJSP STU are relevant to the issues at bar and have already been adjudicated in the state courts, with the DOC having had a full and fair opportunity to present its facts with regard to the DOC's obligation to find -- and its search for -- a transferee facility, it appears warranted to replicate the state courts' findings in detail:

In April 1999, the DOC designated the Kearny facility, which at the time housed 311 minimum security inmates, as the only available site for the temporary housing of SVPs. A few months later, the County of Hudson . . . obtained an order that required the DOC to show cause why . . . the DOC [should not be] enjoined from designating the Kearny facility as a location for the housing of SVPs. The trial court . . . entered a judgment . . . in favor of the County [but] stayed execution of the warrant of removal . . . until September 29, 2000. On September 22, 2000, one week before the stay expired, Governor Christine Todd Whitman invoked her emergency powers, pursuant to the Disaster Control Act, and entered Executive Order 118. [T]he Kearny facility [was, under the Order,] designated as a facility appropriate for the temporary housing of SVPs by the DOC . . . until . . . other temporary facilities capable of and appropriate for the housing of all individuals committed pursuant to the [NJSVPA were located] or until a permanent facility capable of accommodating

Page 555

this population [was] constructed and operational. . . . On June 1, 2004, the County and the DOC filed a stipulation . . . not to challenge Executive Order 118 until December 31, 2006. When that deadline passed -- and another year as well -- without an indication from the DOC as to when the SVPs would be removed from the Kearny facility, the County filed [another legal action. Eventually, the DOC and County agreed that the DOC would produce] the record . . . sufficiently demonstrat[ing] what the DOC has done since 2000.
. . .
The record . . . demonstrate[d] that the DOC has been active but not forceful -- or, at least, not effectual -- in finding a . . . solution . . . . In August 1998, an architectural firm presented a plan to the DOC for the construction of a new 300-bed special treatment unit. State officials thereafter toured Minnesota's SVP facility, identifying several aspects of that facility that might prove beneficial to the DOC's existing proposal. Consideration was given in September 1998 to building a facility on the grounds of [EJSP] at an estimated cost of $20,000,000. Questions arose about the sufficiency of the estimate, followed by objections from the Township of Woodbridge, which commenced litigation and obtained an injunction halting the project. The following month, discussions began in other locations. A site in Maurice River Township was identified as having potential, but was eventually opposed by the township. And, in June 1999, a location in the Borough of Chesilhurst was considered. However, when State officials advised that a public hearing on the subject would be conducted, local residents and officials expressed intense opposition. Little occurred with regard to the creation of a new facility until 2001 when the Department of Treasury requested that the architectural firm update and revise its 1998 study. The firm conducted a series of programming workshops with various officials in an attempt to reach a consensus on the program's needs; its comprehensive plan was presented on February 7, 2002. That plan estimated the cost of the structure at more than $65,000,000. The firm also estimated that the 455-bed facility would require twenty-five acres and estimated the entire cost of the project, including planning, design, construction, permitting and other costs, at more than $82,000,000. The plan was viewed as too expensive. In January 2006, the proposal was reconsidered. By that time, the cost estimate had risen to more than $114,000,000 and was again deemed too expensive. Meanwhile, the adaptation of existing facilities was also explored. Starting in 2002, each of the DOC's facilities was examined and reviewed for this purpose and each deemed unsuitable for a variety of reasons. The DOC considered its Central Reception and Assignment Facility (" CRAF" ) in Trenton, determined it required major improvements to all its buildings, as well as a 17,030 square foot extension at a total cost of more than $17,000,000, and then realized that utilization of CRAF would give rise to a need to find alternate housing for CRAF's inmates. Utilization of the Mid-State Correctional Facility was complicated by the fact that the facility [was] located on federal property. As part of its realignment and closure of Fort Dix, the federal government imposed upon the property it had transferred to the DOC several conditions, which apparently raised concerns about a reversion of the property should it be used to house SVPs. The DOC also harbored concerns about the facility's size

Page 556

and perimeter security. The grounds of the Albert C. Wagner Youth Correctional Facility in Bordentown consisted of one structure found to be too large (consisting of 846 beds), and other structures found too small. The Adult Diagnostic and Treatment Center in Avenel, which is the State's only sex offender prison, was considered. But the proposed facility, if located there, would require subdivision from the remaining population [under the state law], and another location for the prisoners there housed. [In fact, a]ny use of existing correctional facilities would [have] necessarily require[d] the relocation of current inmates, which [would] generate[ an additional] cost to the DOC. The DOC also found problems with Bayside State Prison in Leesburg and Ancora Psychiatric Hospital in Winslow Township [since] Bayside consist[ed] of a 1,221-bed facility, deemed too large for the SVP population, and a farm with open barracks and cottage-type housing units, [was] deemed too insecure for these purposes. Ancora consist[ed] of two separate housing units, with a total of 350 beds, separated by a walking and open recreation space, [and also was] deemed insecure and unsuitable. The DOC reconsidered CRAF in 2006 [but] Jones Farm, a 282-bed satellite unit of CRAF was rejected as too small. On the other hand, [the EJSP] in Rahway, New Jersey State Prison in Trenton, Northern State Prison in Newark, Riverfront State Prison in Camden, and Edna Mahan Correctional Facility in Clinton, were considered too large. The main structure of Mountain view Youth Correctional Facility in Annandale was also considered too large, and its two satellite facilities were considered too small. Other existing facilities presented similar problems. It is not surprising, in light of the nature of the assorted insufficiencies of the DOC's many facilities, that the County compares the DOC's dilemma in identifying an appropriate site to Goldilocks' quandary in " The Story of the Three Bears." That is, the DOC has found some facilities too large, some too small, none just right.
[As years went by], the DOC continued to explore its options, the level of opposition to any chosen locale was met with vociferous opposition. In May 2007, the DOC reconsidered its existing facilities and focused in particular on South Woods State Prison in Bridgeton, which was designated in 2003 as a location for the transition of inmates convicted of sex offenses. This proposal was met with an immediate objection from the Cumberland County Board of Chosen Freeholders. In a letter to the DOC Commissioner, the Freeholders indicated that they were " furious" the DOC was again considering placing the facility in Cumberland County, that in 2000 " our entire County was enraged that an ill-conceived plan was afoot to house sexual predators in Maurice River Township," and that seven years later, the [DOC] " once again targeted" Cumberland County for the placement of the facility at South Woods State Prison.
The DOC has also explored the possibility of privatizing the housing of SVPs. The record [however] reveal[ed] that those efforts were initially clouded by litigation and [never] resulted in any concrete proposal . . . . [In sum, it became clear to the DOC and the state courts that] the vast majority of this State's citizens strongly approve[d] . . . the housing of civilly-committed SVPs where they may be treated until conditions exist for their release -- but not in their town.

Id. at *2-16 (citations, brackets and

Page 557

footnotes 2, 3 and 5 omitted, footnote 4 incorporated).

Noting that " Newton's First Law of Motion states that an object in motion tends to stay in motion[,] and that an object at rest tends to stay at rest unless acted upon by a net external force, [and thus, if the state courts were to] fail to exert [their] own external force, the matter [of transferring the SVPs out of Kearny would] remain at rest for the indefinite future," the state courts directed the DOC to transfer the SVPs, regardless of all financial/logistical difficulties and local opposition. Id. at *17-19. That decision was entered on May 18, 2009, and allow[ed the DOC] one year from [that day] for compliance [with the state court's order]." Id. at *19. Having to scramble for a swift solution, the DOC revisited its above-detailed options and, seemingly finding its previously-twice-rejected option of transferring the SVPs to the EJSP the most viable, called all Kearny SVPs for a meeting on March 17, 2010, and informed them that they would be moved to the EJSP for housing at the STU being carved out of the EJSP's main facility.

The two matters at bar ensued, both commenced pro se.

The complaint submitted by Thaddeus James Thomas (" Thomas" ) in the wake of that March 17, 2010, meeting, asserted two lines of claims. One alleged that the transfer to the EJSP STU, if executed, would subject him to confinement in prison-like conditions since that STU, being carved out of the EJSP, would be structured and administered like a correctional facility, not a medical facility for treatment of mental patients. The other line of claims alleged that, in light of what Thomas understood to be a projected disparity between the levels of treatment at Kearny and at the STU, his transfer to the STU would either wholly deprive him of or markedly reduce his mental treatment indispensable for his recovery.

Thomas' latter claim seemingly proved prophetic.

Thomas' next submissions notified the Court that the SVPs' transfer to the STU did take place, and that his mental therapy was halted during the transfer period. Soon thereafter, he filed a supplement clarifying that his mental therapy resumed shortly after his arrival to the STU, but the extent/frequency of that therapy was indeed markedly lower than that provided at Kearney.[2] Then, Thomas submitted an amended complaint asserting that he was placed in a segregated housing unit (" SHU" ) created within the STU, and that placement fully eliminated his access to any mental therapy. Meanwhile, the complaint filed by Ronald Nash (" Nash" ) similarly suggested reduction in Nash's mental therapy upon his arrival to the EJSP STU and, in addition, repeated other claims raised in Thomas' submissions.

On October 15, 2010, this Court issued an opinion and accompanying order addressing the claims raised in all Nash and Thomas' pro se submissions.

The Court noted that the claims based on the brief gap in therapy associated with the transfer from Kearney to the EJSP STU were facially without merit, while the claims based on reduction/change/elimination of mental therapy were sufficiently pled to survive sua sponte dismissal.[3]

Page 558

This Court, therefore, directed the Clerk to appoint pro bono counsel for each Plaintiff and ordered both counsel to file amended pleadings elaborating on Plaintiffs' individual reduction/change/denial of medical-care claims.[4] Such amended complaints were duly filed, and Defendants timely moved for dismissal of Plaintiffs' claims under Fed.R.Civ.P. 12(b). Being further re-briefed, pursuant to the Court's order, those filings are now before this Court.

II. THE PARTIES' POSITIONS

Thomas' and Nash's respective challenges could be subdivided into three distinct groups. One group could roughly be defined as claims asserting overall inadequacy of treatment administered by the DOC to all SVPs held at Kearny/EJSP STU. See Thomas v. Adams, Civil Action No. 10-5026, Docket Entry No. 26, at 11-13 (asserting that " [t]he number of mental health staff failed to keep pace with the increase in the number of [the SVPs]," " [t]herapy groups increased to a size where they are no longer effective," " [g]roup therapy no longer afforded treatment tailored to [each SVP's] mental health needs," " [the] DOC officials now have a much greater role in the facility," " [the] DOC officers . . . now oversee mental health treatment [and] often actively interfere with this treatment and impede its progress by . . . harassing and degrading [the SVPs]," " the prison-like conditions [of the STU] -- caused both by the nature of the physical facility, which was designed to serve as a high-security prison administrative segregation unit, and by the conduct of the staff -- undermines the ability of [the SVPs] to receive adequate treatment" ); accord Nash v. Christie, Docket Entry No. 22, at 10-11 (" At the STU, [mental therapy] groups have gotten larger and meet . . . less frequently [which] decreas[es] their effectiveness and/or render[s] them entirely ineffective," " [t]he group therapy sessions at the STU improperly group together [SVPs] with a variety of mental health disorders that require distinct treatment regimens," " [t]he group therapy sessions address topics irrelevant to the purpose of [some SVPs'] involuntary commitment [hence rendering these sessions a waste of these SVPs' time," " DOC officers . . . are present in and/or oversee . . . group therapy sessions, undermining the sessions' therapeutic value," " [the SVPs are] not sufficiently informed of the therapy agendas and specific goals of [their] treatment program[s]" " [the SVPs have] not been provided with any meaningful feedback regarding [their] individual mental health progress" ).

The other group consists of Plaintiffs' individualized claims asserting that their own, prescribed mental treatment was provided at Kearny but became denied/reduced/changed for non-medical reasons upon their transfer to the STU/SHU. Toward that end, Thomas stated that, " after serving some ten years in criminal custody [after his] 1990 sexual assault conviction," he has spent more than a decade in civil detention housed at Kearny and then the STU. Thomas, Civil Action No. 10-5026, Docket Entry No. 26, at 9. According to Thomas' allegations, he was receiving several types of prescribed therapy while he

Page 559

was housed at Kearny and therapy " included 'process group' [and] several treatment 'modules' addressing specific issues such as substance abuse or anger management, each of which proceeded in phases in accordance with [Thomas'] individual's progress." Id. at 10. The Kearny treatment proved highly beneficial to Thomas and, " by the time he was transferred out of Kearny in May 2010, he had completed several modules with above-average or average marks." Id. Yet, upon being placed at the STU, he " has been offered no more than 3 hours of treatment per week, [i.e.,] less than one-third of the treatment that he had received at Kearny." Id. at 12. Moreover, the reduced treatment offered to Thomas at the STU took " no account of the treatment that he had completed [in Kearny]" since it " required [him] to start from square one." Id. at 12-13. Worse over, " if a [prescribed] treatment. . . session happene[d] not to be offered on the [SHU grounds, where Thomas became confined soon after his transfer to the STU, that mental treatment became] simply not available to . . . Thomas." Id. at 12, n.1. Consequently, Thomas claims that he has effectively had no mental treatment " since May 2011,. . . due to ongoing construction [at the SHU] that has left no space available for treatment [on the SHU grounds]." Id. Put another way, he asserts that he was denied all mental treatment simply because the DOC officials either did not or could not complete their construction tasks in time.

Nash's re-pled claims as to the reduction of his prescribed mental treatment largely mimic those of Thomas: short of the claim as to complete denial of treatment. Although Nash is confined within the EJSP STU general population (not at the SHU), according to his pleadings,

[d]espite the treatment progress made by Nash at . . . Kearney . .., the . . . DOC. . . has disregarded any treatment already completed by Nash prior to his arrival at the STU. Nash had, for example, successfully completed anger management therapy at . . . Kearney . . . . yet was placed in the lowest level of the anger management module at the STU. In fact, at the STU, Nash has not received more than three hours of therapy per week . . . . At . . . Kearney . .., Nash received, on average, 10 hours of therapy per week.

Nash, Docket Entry No. 22, at 9.

The third group of Plaintiffs' claims is painted in large strokes since it broadly asserts that the " treatment [is] now provided by social workers and recreation staff rather than by psychiatrists, psychologists and social workers . . . . as at Kearny." Thomas, Civil Action No. 10-5026, Docket Entry No. 26, at 11; accord Nash, Docket Entry No. 22, at 9-10 (" At . . . Kearney,. . . Nash received treatment from psychiatrists, psychologists and social workers. At the STU, Nash's treatment . . . is only provided by social workers and/or recreation staff" ). Being stated in those terms, these claims leave the Court guessing whether Plaintiffs' prescribed mental therapy was such that it had to be administered by " psychiatrists, psychologists and social workers" or, in alternative, it was such that it could be " provided by social workers and/or recreation staff." [5]

Plaintiffs named nine Defendants in this matter: Christopher J. Christie (" Christie,"

Page 560

Governor of the State of New Jersey), Paula T. Dow (" Dow," a former Attorney General of the State of New Jersey, who became the First Deputy General Counsel for the Port Authority of New York and New Jersey on January 10, 2012, and later that year became a Superior Court Judge in the Family Court Division in Burlington County), Gary M. Lanigan (" Lanigan," Commissioner of the DOC since March 2010), Jennifer Velez (" Velez," Commissioner of the New Jersey Department of Human Services since 2007), John Main (" John Main," Director of the New Jersey Department of Human Services), Jonathan Poag (" Poag," Director of the Division of Mental Health Services), Merrill Main (" Main," Clinical Director of the EJSP SHU), Shantay Braim Adams (" Adams," Assistant Director of the EJSP SHU) and Jackie Ottino (" Ottino," Program Coordinator of the EJSP SHU). See Nash, Docket Entry No. 11.[6] No subordinate officer of the STU/SHU was ever named as a Defendant, and Plaintiffs' allegations have been consistently devoid of facts suggesting that wrongful acts by any subordinate officer were the cause of Plaintiffs' individualized injuries, i.e., the injuries not shared with other SVPs.

Defendants moved for dismissal of Plaintiffs' claims. These motions (and Defendants' replies to Plaintiffs' opposition to these motions, as well as Defendants' sur-replies filed under this Court's order directing further re-briefing) articulated one key argument and two secondary ones. See Thomas, Civil Action No. 10-5026, Docket Entries Nos. 16, 28 and 29; see also Nash, Docket Entries No. 18, 28. On the one hand, Defendants maintained that Plaintiffs' allegations failed to state a plausible claim within the meaning of Rules 8(a) and 12(b), as clarified by the relevant Supreme Court and Court of Appeals' decisions, since all Defendants here were supervising/high-ranking officials who, by definition, were not involved in the day-to-day operations of the EJSP STU or the SHU within the STU.

In addition to this argument, Defendants asserted that: (a) they were entitled to qualified immunity; and (b) Plaintiffs' challenges were facially insufficient to avail Plaintiffs to permanent injunctive relief upon final resolution of the matters at bar.

III. CLAIM PRECLUSION CONSIDERATIONS

The litigation here has been taking place not only in the aftermath of state litigation in County of Hudson, but also against the backdrop of another long-running litigation: in this District. Almost a decade prior to the SVPs transfer to the EJSP STU, i.e., shortly after Governor Whitman's entry of Executive Order 118 (under which the SVPs became temporarily housed at Kearny), a certain SVP commenced a § 1983 action challenging sufficiency of the overall mental treatment administered at Kearny. See Alves v. Main, at *8, 15-16 (D.N.J. Dec. 4, 2012); see also Alves, et al v. Ferguson, et al, Civil Action No. 01-0789, Docket Entry No. 1. By 2005, about " 30 additional cases" raising analogous challenges were administratively consolidated with that seminal matter. See Alves, at *17, 26-27.

Page 561

By 2012, the volume of those claims became such that a class was certified to address the alleged overall inadequacy of mental treatment administered to all SVPs by the DOC, be it at Kearny or -- during the last stages of the Alves class action -- at the EJSP STU. See Alves v. Ferguson, Civil Action No. 01-0789 (D.N.J.).

Since Plaintiffs' joint amended complaint contained, inter alia, a few passim allegations as to the overall inadequacy of mental treatment administered at the EJSP STU, in October 2011, this Court -- mindful of the then-ongoing Alves litigation -- severed those Plaintiffs' allegations into a separate matter and directed consolidation of that separate matter with the Alves class action. See Thomas v. Christie, Civil Action No. 10-5026, Docket Entry No. 17, at 2 (" [T]he Alves matter [is] a series of cases concerned with the alleged insufficiency of overall medical treatment received by [the] SVPs . .., Plaintiffs are SVPs, and their amended complaint raised, inter alia, a line of challenges virtually indistinguishable from the issues . . . litigated in Alves" ). In contrast, the instant matters were " reserved for . . . Plaintiffs' . . . individualized[] lines of [constitutional] challenges . . . predicated on . . . the alleged [denial, change or] reduction in medical treatment Plaintiffs have been receiving [after the transfer]." Id. at 2-3. The Court's order to that effect was entered in October 2011.

Half a year later, i.e., in March 2012, the Alves class action was settled after hard-fought negotiations. See Alves v. Main, 559 F.App'x 151, (3d Cir. 2014). The Court of Appeals described that process as follows:

[those s]ettlement negotiations began in 2005 . . . . [By 2008], the parties reached an impasse in settlement talks on the issue of adequate treatment. Counsel for both the [SVPs] and the State . . . jointly recommended . . . an expert proposed by the State. On April 3, 2008, the District Court issued an order appointing [that expert] as Joint Neutral Expert and [directed her to] assist in the negotiations [by] submitt[ing] an extensive report suggesting a number of changes to improve the treatment at the STU, based on her professional opinion. The parties executed a formal Settlement Agreement [which] was approved by the District Court . . . . While the Agreement implements many of [the Joint Neutral Expert's] recommendations, it [did] not address certain of her concerns. [Some SVPs] object[ed] . . . argu[ing] that the Settlement was not fair, adequate, or reasonable because (1) it violate[d] the " minimally adequate" constitutional standard [since it did] not implement all of [the Joint Neutral Expert's] suggestions, and (2) the Settlement [was] illusory [since it was] contingent on discretionary state funding.

Id. at 154-155.

The Court of Appeals dismissed the attack by the SVPs who challenged the Alves Settlement and pointed out that the Settlement was a disposition qualitatively different from a judicial resolution of any SVP's individualized constitutional claims. See id. at 155 (" [The SVPs'] arguments are based on the false premise that [the Expert's] evaluation utilized the constitutional standard and conclusively determined which [modalities of the] STU treatment . . . fell below that standard. [However, the Expert] did not even use the constitutional standard, but instead her own expert opinion of how the STU should be run" ) (emphasis supplied).

Thus, upon the Alves Settlement, Plaintiffs' claims that had been consolidated with Alves, i.e., their challenges to the alleged overall inadequacy of mental treatment administered at Kearny/EJSP

Page 562

STU, became fully extinguished and barred for the purposes on any litigation, including the matters at bar. See id. at 156 (" [I]f funding is not secured [to furnish the settlement-based overall mode of mental treatment], Plaintiffs may declare any affected provisions 'void' and resume [their Alves] litigation with respect to that provision" ). In contrast, Plaintiffs' individualized constitutional claims reserved here remained unaffected by the Alves Settlement or the Settlement's references to the SVPs' transfer from Kearny to the EJSP STU. These reserved claims have remained as intact as if all SVPs stayed at Kearny, and the Kearny officials would have denied/reduced/changed Plaintiffs' mental treatment for non-medical reasons. Cf. Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, (3d Cir. Sept. 12, 2014).[7]

IV. RULE 12 STANDARD OF REVIEW

The standard a court applies on a motion for judgment on the pleadings under Rule 12(b) is the same standard the court applies to screen the pleadings for sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii), which -- in turn -- derives from Rule 8(a). See West Penn Allegheny Health System, Inc. v. UPMC, 627 F.3d 85, 98 (3d Cir. 2010); Spruill v. Gillis, 372 F.3d 218, 223 n. 2 (3d Cir. 2004); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

Page 563

In harmony with the aim of the Federal Rules of Civil Procedure, which is " to secure the just, speedy, and inexpensive determination of every action and proceeding," see Fed.R.Civ.P. 1, Rule 8(a) has been modestly asking a pleader for a " short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). These words, known as the " simplified notice pleading requirement," Leatherman v. Tarrant Cty Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), are the linchpin of this nation's federal practice.[8]

The unobtrusive obligation to " show" entitlement to relief was adopted to ensure that form would never be put over substance. See Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (" The Federal Rules reject the approach that pleading is a game of skill in which one misstep . . . may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits" ). In fact, this substance-over-form concern was the main reason the Conley Court ventured into its discussion of the pleading standard. See id.

Yet, by a peculiar whim of jurisprudential fate, a single sentence in Conley, namely, " 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," id. at 46 (" Conley passage" ), which was a mere expression of the Supreme Court's bewilderment with the dismissive treatment Conley's well-pled facts had received at the inferior courts, somehow succeeded at obliterating the facts, the logic and all other aspects of Conley, and it also nearly annihilated the gist of Rules 8(a) and 12(b).[9]

Gradually, the Conley passage came to be construed as allowing a pleader to avoid asserting any facts. With that, even bold, purely ...


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