THOMAS v. ADAMS et al
Filing
32
OPINION. Signed by Judge Dickinson R. Debevoise on 10/17/14. (DD, )
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FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
THADDEUS JAMES THOMAS,
Plaintiff,
v.
SHANTA Y BRAME ADAMS, et al.,
Civil Action No. 10-5026 (DRD)
Defendants.
RONALD NASH,
Plaintiff,
v.
Civil Action No. 10-2113 (DRD)
CHRIS CHRISTIE et al.,
OPINION
Defendants.
APPLIES TO BOTH ACTIONS
Appearances:
Lawrence S. Lustberg, Esq., Gibbons P.C.
1 Gateway Center, Newark, New Jersey 07102
for Thaddeus James Thomas, Plaintiff
Michael R. Yellin, Esq., Cole, Schotz, Meisel, Forman & Leonard, P.A.
Court Plaza North, 25 Main Street, Hackensack, New Jersey 07601
for Ronald Nash, Plaintiff
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,
25 Market Street, Trenton, New Jersey 08625
for Defendants Christopher J. Christie, Paula T. Dow, Gary M. Lanigan,
Jennifer Velez, John Main, Jonathan Poag, Merrill Main, Shantay Braim Adams
and Jackie Ottino
Debevoise, 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., 2009 N.J. Super. Unpub. LEXIS 1188, at *2 and
n.2 (N.J. Super. 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:
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"In 1998, the Legislature enacted the [NJSVPA], which authorized the involuntary civil
commitment of persons found to be [SVPs]. The [NJSVPA] define[d an SVP] as 'a person who
has been convicted, adjudicated delinquent or found not guilty by reason of insanity for
commission of a sexually violent offense, or has been charged with a sexually violent offense but
found to be incompetent to stand trial, and suffers from a mental abnormality ... that makes the
person likely to engage in acts of sexual violence if not confined ... for ... treatment.' The
[NJSVPA] placed with the Department of Corrections ('DOC') the responsibility of operating a
facility for 'the custody, care and treatment' of SVPs." County of Hudson, 2009 N.J. Super.
Unpub. LEXIS 1188, at *2 and n.2 (citations omitted, footnote incorporated).
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In April1999, 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 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
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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. 1m. 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 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 Mountainview 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.
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[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.
ld. at *2-16 (citations, brackets and 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]." ld. 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.
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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' prose submissions.
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Thomas' supplement also asserted many other claims. See infra, this Opinion, note 3.
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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 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]
3
The Court also dismissed Plaintiffs' claims asserting that their placement in prison-like
conditions violated their rights. Analogously, the Court dismissed Plaintiffs' challenges based on
reduction in recreational activities. The Court also dismissed Plaintiffs' claims asserting that, as
a result of their transfer, they were prevented from "ordering" personal belongings from outside
sources. Finally, the Court dismissed Plaintiffs' access-to-the-courts claims as facially meritless.
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The Court takes this opportunity to thank both counsel for their dedication to the public
cause and protection of their clie~s· rights, and for their valuable service to this Court.
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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 was housed at Kearny and therapy
"included 'process group' [and] several treatment 'modules' addressing specific issues such as
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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 happen[ed] 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.l. 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]." ld. 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.
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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. 105026, 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,"
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
5
Thus, this group of claims falls somewhat between Plaintiffs' allegations with regard
to: (a) the alleged overall inadequacy of mental treatment administered to all SVPs at Kearny/
EJSP STU; and (b) Plaintiffs' individualized challenges to the above-detailed denial/reduction/
change of their own prescribed mental treatment for non-medical reasons that took place upon
their transfer to the EJSP STU/SHU.
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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' chaUenges were facially insufficient to avail Plaintiffs to permanent
injunctive relief upon final resolution of the matters at bar.
6
During the course of these litigations, "[P]laintiff[s] concede[d] that [they] ha[d] no
claim for damages against ... Cluristie or ... Dow, [who became] sued [only] in their official
capacities," i.e., only for injunctiVIe relief. Thomas, Civil Action No. 10-5026, Docket Entry No.
26, at 26, n.5. The remaining seven Defendants remained sued for both injunctive and monetary
relief, i.e., in their individual as well as official capacities.
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III.
CLAIM PRECLUSION CONSIDERATIONS
The litigation here has been taking place not only in the aftermath of state litigation in
County of Hudson, 2009 N.J. Super. Unpub. LEXIS 1188, 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, 2012 U.S. Dist. LEXIS 171773, 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, 2012 U.S. Dist. LEXIS 171773, at *17, 26-27. 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,
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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, 2014 U.S. App. LEXIS 5234 (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, 200$, 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.
ld. at *4-5.
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 *7 -11 ("[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 ..
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. 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
Keamy/EJSP STU, became fully extinguished and barred for the purposes on any litigation,
including the matters at bar. See iQ,. at* 11 ("[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., 2014 U.S. App. LEXIS 17629 (3d Cir. Sept. 12,
2014). 7
7
In Blunt, the Court of Appeals, reflecting on the res judicata effect that a class action
settlement might have on claims separately raised by one of class members, explained that:
claim preclusion, formerly referred to as res judicata, gives dispositive effect to a
prior judgment if a particular issue, [even if] not litigated, could have been raised
in the earlier proceeding. Claim preclusion requires: ( 1) a final judgment on the
merits in a prior suit involving; (2) the same parties or their privi[]es; and (3) a
subsequent suit based on the same cause of action. In analyzing whether these
three elements have been met, we do not apply this conceptual test mechanically,
but focus on the central pUirpose of the doctrine, to require a plaintiff to present all
claims arising out of the same occurrence in a single suit. In so doing, we avoid
piecemeal litigation and conserve judicial resources. We further have explained
that we take a broad view of what constitutes the same cause of action and that res
judicata generally is thought to tum on the essential similarity of the underlying
events giving rise to the various legal claims. In analyzing essential similarity, we
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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).
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
consider several factors: (1) whether the acts complained of and the demand for
relief are the same; (2) whether the theory of recovery is the same; (3) whether the
witnesses and documents necessary at trial are the same; and (4) whether the
material facts alleged are the same. . . . A claim extinguished by res judicata
includes all rights of the plaintiff to remedies against the defendant with respect to
all or any part of the transaction, or series of connected transactions, out of which
the action arose .... [A] judgment pursuant to a class settlement can bar later
claims based on the allegations underlying the claims in the settled class action...
. [The] rule ... serves the important policy interest of judicial economy by
permitting parties to enter into comprehensive settlements that prevent relitigation
of settled questions at the core of a class action.
2014 U.S. App. LEXIS 17629, at *63-66 (citations, quotation marks, brackets, indentation and
heading omitted, emphasis suppli¢d). Since constitutional claims ensuing from a change in
treatment of a particular SVP for non-medical reasons were never at the core of Alves, and since
Plaintiffs did, indeed, raise all their claims in a single pleading, Alves has no preclusionary effect
here: it would be wholly anomalous of this Court to first direct consolidation of only Plaintiffs'
Alves-like claims and retain jurisdiction over their individualized constitutional challenges, and
then inform Plaintiffs that, upon the Settlement of claims attacking the overall mode of mental
treatment, Plaintiffs' individualized claims disappeared into the oblivion: all in the name of this
Court's now-found judicial economy.
Page 15 of 55
the "simplified notice pleading requirement," Leatherman v. Tarrant Cty Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (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 (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
8
Nowadays, a discussion of the notice pleading requirement is frequently reduced to a
mere blurb. Yet, in February 200$, writing the Court of Appeals' first precedential decision
reflecting on the Rule 12(b) standard, as it stood clarified in Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007), Hon. Richard L. Nygaard reminded the district courts that "[f]ew issues in ...
jurisprudence are more significant than pleading standards, which are the key that opens access to
courts." Phillips v. Cty of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
9
[A] good many judges and commentators have balked at taking the literal terms of
the Conley passage as a pleading standard. See,~. Car Carriers [v. Ford Motor
Co.], 745 F.2d [1101,] 1106 [(7th Cir. 1984)] ("Conley has never been interpreted
literally" and, "[i]n practioe, a complaint ... must contain either direct or
inferential allegations respecting all the material elements necessary to sustain
Page 16 of 55
1
I
II
Gradually, the Conley passage came to be construed as allowing a pleader to avoid
asserting any facts. With that, even bold, purely self-serving, conclusory expressions of
subjective feeling of injustice/displeasure were transformed into viable "pleadings." 10
See,~.
recovery under some viable legal theory" (internal quotation marks omitted;
emphasis and omission in original); Ascon Prop .. Inc. v. Mobil Oil Co., 866 F.2d
1149, 1155 (9th Cir. 1989) (tension between Conley's "no set of facts" language
and its acknowledgment that a plaintiff must provide the "grounds" on which his
claim rests); O'Brien v. DiGrazia, 544 F.2d 543, 546, n.3 (1st Cir. 1976) ("When
a plaintiff supplies facts to support his claim, we do not think that Conley imposes
a duty on the courts to conjure up unpleaded facts that might tum a frivolous
claim of unconstitutional ... action into a substantial one"); McGregor v. Indus.
Excess Landfill. Inc., 856 F.2d 39, 42-43 (6th Cir. 1988) (quoting O'Brien's
analysis); Hazard, From Whom No Secrets Are Hid, 76 Texas L. Rev. 1665, 1685
(1998) (describing Conley as having "turned Rule 8 on its head"); Marcus, The
Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum.
L. Rev. 433,463-465 (1986) (noting tension between Conley and subsequent
understandings of Rule 8).
Twombly, 550 U.S. at 562 (brackets and ellipses omitted); see also infra, this Opinion, note 10.
10
This unfortunate fascination with the Conley passage achieved the very ill the Conley
Court hoped to prevent: it put a hollow pleading form over its factual substance. Notably,
Conley itself had nothing in common with a factless-pleading scenario: the Conley allegations
were extremely well-developed. See Conley, 355 U.S. at 46 ("[T]he complaint alleged, [inter
alia, that the plaintiffs] were discharged wrongfully by the Railroad and that the Union, acting
according to plan, refused to protect their jobs as it did those of white employees or to help them
with their grievances all because they were Negroes. If these [factual] allegations are proven
there has been a manifest breach of the Union's statutory duty to represent fairly and without
hostile discrimination all of the employees in the bargaining unit"). Moreover, "the Steele,
Graham, and Howard cases," i.e., the cases upon which Conley relied, see id. at 45, also dealt
with excellently developed factual allegations. See Brotherhood of R. Trainmen v. Howard, 343
U.S. 768, 770 (1952) ("In summary the complaint alleged: Negro employees such as respondent
constituted a group called 'train porters' although they actually performed all the duties of white
'brakemen'; the Brotherhood of Railroad Trainmen, bargaining representative of 'brakemen' ...
, had for years used its influence in an attempt to eliminate Negro trainmen and get their jobs for
white men who, unlike colored 'train porters,' were or could be members of the Brotherhood; ...
the Brotherhood finally forced [the] discharge [of] the colored 'train porters' and filled their jobs
with white men who, under the agreement, would do less work but get more pay"); Graham v.
Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232,249 (1949) ("Twenty-one
Negro firemen ... employed by southern railroads[] brought this suit against ... the Brotherhood
Page 17 of 55
Arthur R. Miller, Simplified Pleacljng. Meaningful Days in Court. and Trials on the Merits:
Reflections on the Deformation of Federal Procedure, 88 N.Y.U.L. Rev. 286, 365-66 (2013)
("[Under the Conley passage,] the pleader merely had to say that she felt aggrieved and state
what was desired - something ... analogous to [the statement made by Charles Dickens'
character] Oliver Twist [who merely uttered], 'Please, sir ... I want some more gruel'")
(footnote and brackets omitted).
Once the possibility of commencing a legal action governed by the Conley passage
standard came about, loose pleadings devoid of facts became all too common, contributing to the
flood of litigation which swelled judicial dockets and caused parties who suffered true injuries
long delays in vindication of their rights. 11
of Locomotive Firemen and Enginemen .... The complaint alleges in substance that the
Brotherhood is an exclusively white man's union and, as it includes a majority of the craft, it is
possessed of sole collective bargaining power in behalf of the entire craft including the Negro
firemen in consequence of the Railway Labor Act. It has negotiated agreements and
arrangements with the southern railroads which discriminate against colored firemen, who are
denominated "not-promotable" while white ones are "promotable." The effect of the agreements
is to deprive them, solely because of their race, of rights and job assignments to which their
seniority would entitle them. Many Negro firemen have been thus displaced or demoted and
replaced by white firemen having less seniority. . . . It is needless to recite additional details of
the present case"); Steele v. Louisville & N. R. Co., 323 U.S. 192, 194-97 (1944) (offering
almost three pages of facts so wel[-detailed and exceedingly thorough that this factual predicate
is too extensive to be either reproduced or even summarized in this already lengthy footnote).
See,~. Avery Katz, The Effect of Frivolous Suits on the Settlement of Litigation, 10
Int'l Rev. L. & Econ. 3 (1990); D. Rosenberg and S. Shavell, A Model in Which Suits Are
Brought for Their Nuisance Value, 5 Int'l Rev. L. & Econ. 3 (1985); see also Lawrence C.
Marshall et al., The Use and Imp~ct of Rule 11, 86 Nw. U. L. Rev. 943 (1992); accord Robert G.
Bone, Modeling Frivolous Suits, 145 U. Pa. L. Rev. 519, 528-29, 538-41 and accompanying
notes (1997); see also Murakush Caliphate of Amexem Inc. v. New Jersey, 790 F. Supp. 2d 241,
267 (D.N.J. 2011) ("This Court does not know why [plaintiffs] have chosen to file their
labyrinthine, multi-defendant actions in federal courts over the years, or why they have elected to
file the instant matter . . . . These litigants have exacted and will continue to exact a heavy price
on the finite resources of this District Court and other federal courts at district level and, hence,
11
Page 18 of 55
1
11
II
Since the existence of pleadings excesses was insufficient to prevent abuses based on the
Conley passage, the need for a tool facilitating judicial separation of the chaff of baseless
pleadings from the wheat of bona fide claims became evident when courts began expressing their
ire with the "mumbo jumbo" offered for judicial review.
See,~.
Lesher v. Law Offices of
Mitchell N. Kay. PC, 650 F.3d 993, 1006 (3d Cir. 2011) (Jordan, J., dissenting). Hence, the
Supreme Court clarified, albeit in passing, that - for a plaintiff seeking "more gruel" - "it should
not prove burdensome ... to provide [the named defendants with] some indication of the [facts]
that the plaintiff ha[ d] in mind" in support of his claims against these defendants. Dura Pharms ..
Inc. v. Broudo, 544 U.S. 336, 347 (2005). And, since that brief clarification went, alas, largely
unnoticed, the Supreme Court re-explained, this time in detail:
We alluded to the practical significance of the Rule 8 entitlement requirement in
Dura ... , when we explained that something beyond the mere possibility of loss .
. . must be alleged, lest a plaintiff with '"a largely groundless claim"' be allowed
to "take up the time of a nlllmber of other people, with the right to do so
representing an in terrorem increment of the settlement value." ... As we
indicated over 20 years ago, "a district court must retain the power to insist upon
some specificity in pleading before allowing a potentially massive factual
controversy to proceed." . . . It is no answer to say that a claim just shy of a
plausible entitlement to relief can, if groundless, be weeded out early in the
discovery process through "careful case management," given the common lament
that the success of judicial supervision in checking discovery abuse has been on
the modest side. And it is self-evident that the problem of discovery abuse cannot
on litigants in other matters as to whom justice will be delayed while those scarce judicial
resources are expended to process [plaintiffs'] bounty") (citing Bethel v. Bosch, 2010 U.S. Dist.
LEXIS 128065, at *13 (S.D. Ala. Dec. 2, 2010) ("The undersigned will not sit idly by as this
District Court is inundated with harassing and vexatious litigation arising from whatever
[plaintiffs'] perceived multimillion-dollar constitutional affront du jour might be"); Miller v.
Donald, 541 F.3d 1091, 1096 (11th Cir. 2008) ("Frivolous and vexatious law suits threaten the
availability of a well-functioning judiciary to all litigants"); Procup v. Strickland, 792 F.2d 1069,
1072 (11th Cir. 1986) (en bane) ("Every lawsuit filed, no matter how frivolous or repetitious,
requires the investment of court time, whether the complaint is reviewed initially by a law clerk,
a staff attorney, a magistrate, or the judge")).
Page 19 of 55
be solved by "careful scrutiny of evidence at the summary judgment stage," much
less "lucid instructions to juries," the threat of discovery expense will push
cost-conscious defendants to settle even anemic cases before reaching those
proceedings.
Twombly, 550 U.S. at 558-60 (citations and internal quotation marks omitted).
Notably, the Twombly Court took pains to point out that the abusive litigation practices
the Court had in mind were rooted solely in the Conley passage, and no other part of Conley was
in need of a clarification, moreover a vacatur. Contrary to what appears to be the unfortunate
popular belief, Conley- that is, the holding of Conley (i.e., the application of Rule 8 to Conley's
well-pled facts), as opposed to the abusive uses of the Conley passage- remains good law under
Twombly and its progeny:
[S]uch a focused and literal reading of Conley's "no set of facts" [is erroneous
because] a wholly conclusory statement of claim would survive a motion to
dismiss whenever the pleadings left open the possibility that a plaintiff might later
establish some "set of [not pled, initially] undisclosed facts" to support recovery.
. . . [H]ere, the [c ]ourt ... found the prospect of unearthing ... evidence ...
sufficient to preclude dismissal, even though the complaint does not set forth a
single fact ... that suggests [a wrong]. It seems fair to say that this approach to
pleading would dispense with any showing of a "reasonably founded hope" that a
plaintiff would be able to make a case [because, under this approach the plaintiff
can succeed by pleading a merely Charles Dickens' type of] optimism ....
Twombly, 550 U.S. at 561-62 (citations, brackets and internal quotation marks omitted). While
reduced to terms that could hardly qualify as ambiguous, the Twombly teaching barely took. 12
Many construed Twom~ly as limited to antitrust law, and read Erickson v. Pardus, 551
U.S. 89 (2007), as a post-Twombly validation of the Conley passage. While some courts found
such Twombly-Erickson dichotomy unwarranted, see,~. Swanson v. Citibank. N.A., 614 F.3d
400, 409- (7th Cir. 2010) (Posner, J., dissenting), others capitalized on Erickson to create a "civil
rights" exception to Rule 8 with regard to pro se and/or incarcerated litigants. See, ~. Williams
v. City of Milan, 654 F. Supp. 2d 760, 762 (W.D. Tenn. 2009) (contrasting Twombly with
Erickson, which was described as an analysis of "a prisoner's prose§ 1983 civil rights claim," in
order to conclude "that the requirement to plead particular facts [is more] important in 'cases
likely to produce sprawling, costly, and hugely time-consuming litigation"') (quoting Snapp. Inc.
12
Page 20 of 55
1
i
II
II
Thus, the Supreme Court revisited the issue once again, in Ashcroft v. Igbal, this time
spelling out that:
[u]nder ... Rule ... 8(a)(2), a pleading must contain a "short and plain statement
of the claim showing that the pleader is entitled to relief." As the Court held in
Twombly, ... the pleading standard ... does not require "detailed factual
allegations," but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels
and conclusions" or "a formulaic recitation of the elements of a cause of action
will not do." ... [A] complaint must contain sufficient factual matter ... to "state
a claim to relief that is plausible on its face." A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The plausibility
standard is not akin to a "probability requirement," but it asks for more than a
sheer possibility that a defendant has acted unlawfully. . .. Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice. Rule 8 [does not set forth a] hypertechnical, code-pleading regime ...
, but it does not unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions. . . . Determining whether a complaint states a plausible
claim for relief ... [is] a context-specific task that requires the ... court to draw
on its judicial experience and common sense.
556 U.S. 662, 677-79 (2009) (citations and quotation marks omitted); see also id. at 684
(stressing that there could not be an "antitrust" or "prose civil litigant" exception to the pleading
requirement, since "Rule [8(a)] governs the pleading standard in all civil actions and proceedings
in the United States district courts") (quotation marks omitted).
Unlike the teachings in Dura and Twombly, the lgbal guidance sunk in.U
Perhaps, it sunk in too well and in the way the Igbal Court never envisioned since,
diametrically changing their course, many a jurist embarked on coining a misreading of Igbal
v. Ford Motor Co., 532 F.3d 496, 502 n.6 (6th Cir. 2008)) (internal quotation marks omitted).
13
As the Court of Appeals observed, "lgbal ... provide[ d) the final nail-in-the-coffin for
the 'no set of facts"' abusive uses of the Conley passage, Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009), that were divorced from the holding of Conley for almost half a century.
Page 21 of 55
("Igbal misreading") as divorced from the actual holding of Igbal (i.e., from the application of
Rule 8 to Igbal's insufficiently-pled facts) as the abusive uses of the Conley passage were
divorced from the actual holding of Conley. Gradually, the Igbal misreading became construed
as a heightened pleading standard fk facto facilitating denial of access to the courts. See, ~. J.
Scott Pritchard, The Hidden Costs of Pleading Plausibilty, 83 Temp. L. Rev. 757,781 and n.208
(2011) ("Twombly and Igbal have enabled lower courts to use their [']discretion[' in] ... dealing
with ... dockets at the expense of judicial access .... The [']discretion['] bestowed on lower
courts has had the practical effect of officially authorizing the de facto heightened pleading
standard"). 14
Nowhere has the Igbal misreading been more evident and distortive of the letter and spirit
of Rule 8 than in the matters containing claims against defendants holding supervisory positions.
While, half a century ago, the Conley passage came to be construed as allowing a pleader to
avoid asserting any facts, the lgbal misreading came to be used as a shield that allowed virtually
every wrongdoer holding a supervisory position to escape litigation upon claiming "insufficiency
of pleading," i.e., upon uttering the hollow phrase which came to mean that a plaintiff, separated
from the supervisor-wrongdoer by a few ranks of subordinates, simply had no meaningful way to
learn about and plead, without discovery, the particularities of the wrongdoer's exact conduct.
14
See also Miller, Simplified Pleading, 88 N.Y.U.L. Rev. at 304,331-32 and n.172
(defining Twombly and lgbal as "two cases [that brought about] a procedural 'sea change' in
[bona fide] plaintiffs' ability to survive the pleading stage," asserting that these cases "have
impaired both access to the federal courts for many citizens and the enforcement of various
national policies" and misreading Fowler as a decision "explaining that Twombly and Igbal
abrogated notice pleading") (emphasis supplied).
Page 22 of 55
Such Iqbal misreading is troubling. The contraction of the Conley holding into the
Conley passage might or might not have done a long term damage. However, the transformation
of the careful, thoughtful and well-grounded holding of Iqbal into the Iqbal misreading threatens
such damage. 15
Iqbal did not change any aspect of substantive law. Nor did Iqbal create a liability
exception for the defendants fortunate to hold supervisory positions. And,£! fortiori, Iqbal did
not change a single word of Rule 8(a) (or Rule 12(b )), or the meanings of these Rules: the actual
holding of Iqbal merely elaborated on the Supreme Court's original passim observation in Dura
that "it should not prove burdensome [for a plaintiff] to provide [his defendants with] some
indication of the [facts] that the plaintiff has in mind," 544 U.S. at 347 (emphasis supplied),
since the Federal Rules have always been 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); see Animal Sci.
Prods. v. China Nat'l Metals & Minerals Imp. & Exp. Corp., 702 F. Supp. 2d 320, 380-81
(D.N.J. 2010) (addressing the effect of Twombly on a pleading filed during the Conley reign and
citing Schiller v. Phys. Res. Group. Inc., 342 F.3d 563 (5th Cir. 2003), for the observation that
15
The Iqbal misreading has prompted a surge of criticism of the holding of Iqbal from
counsel, judges and academia alike. See Miller, Simplified Pleading, 88 N.Y.U.L. Rev. at 332
and nn.17 4, 198 (claiming that the "effect [of Twombly/Iqbal] has been so dramatic that cartoons
have appeared showing lawyers complaining to their disappointed clients about having been
'Twomblyed in the Iqbals,'" noting the author's own "less than complimentary views of
Twombly and Iqbal spelled out at length" in another law article and listing legislative initiatives
aiming to circumvent Iqbal); see
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