Brewster McCauley v. City of Chicag

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3561

B REWSTER M C C AULEY, as Special Administrator

of the Estate of Mersaides McCauley,

Plaintiff-Appellant,

v.

C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 C 2604—Amy J. St. Eve, Judge.

A RGUED S EPTEMBER 15, 2010—D ECIDED O CTOBER 20, 2011

Before M ANION, S YKES, and H AMILTON, Circuit Judges.

S YKES, Circuit Judge. Mersaides McCauley was shot

and killed by her ex-boyfriend Glenford Martinez as she

left the parking lot of her church in Chicago. Martinez

then turned the gun on himself. At the time of the murder-

suicide, Martinez was on parole for an earlier homicide

and had a history of harassing and assaulting McCauley

2 No. 09-3561

in violation of his parole and a court order of protection

issued on her behalf. Chicago law-enforcement and

Illinois corrections officials were aware of these viola-

tions and could have ensured that Martinez was

detained without bail, but they neither issued a parole-

violation warrant nor arrested him for violating the

order of protection.

After Mersaides’s death, her father, Brewster McCauley,

as administrator of her estate, filed suit in state court

against the City of Chicago and several of its officials,

the Illinois Department of Corrections (“IDOC”) and its

director, and Martinez’s estate. The complaint alleged

13 separate federal and state claims for relief; those rele-

vant here are equal-protection claims against the City

of Chicago and the IDOC director.

The city and state defendants removed the case to

federal court and promptly moved to dismiss. The

district court granted the motion. The court held that

female victims of domestic violence are not a “suspect”

or “protected” class for purposes of equal-protection

analysis, so McCauley’s equal-protection claim against

the City failed as a matter of law. The court also held

that McCauley’s claim against the IDOC director was

barred by the Eleventh Amendment because the claim

sought damages from the director in his official capacity.

McCauley asked for leave to conduct limited discovery

in the hope of finding a basis for a personal-capacity equal-

protection claim against the IDOC director. The dis-

trict court denied this request. McCauley appealed.

We affirm, although on different grounds. The com-

plaint does not plausibly state a policy-or-practice equal-

No. 09-3561 3

protection claim against the City. It contains only general-

ized allegations that the City failed to have specific

policies in effect to protect victims of domestic violence

from harm inflicted by those who violate their parole

or court orders of protection by committing acts of domes-

tic violence. The complaint alleges, in essence, that the

City failed to single out domestic-violence victims as a

class for special protection, not that the City denied this

class of victims equal protection.

McCauley does not contest the dismissal of his equal-

protection claim against the IDOC director in his official

capacity, but he does seek review of the court’s denial of

his request for limited discovery for the purpose of

finding a basis for a personal-capacity claim. At oral

argument, however, McCauley’s counsel admitted he

had no reason to believe the IDOC director had any

personal involvement in supervising Martinez’s parole,

let alone any of the events leading to Mersaides’s

death. Accordingly, the district court properly denied

the request for Rule 12(b)(6) discovery.

I. Background

In 1993 Martinez was convicted of murder and

attempted murder and sentenced to 28 years in prison.

He was released in 2006 and placed on mandatory super-

vised release for three years. In November 2007 Martinez

was arrested and charged with domestic battery for

allegedly choking Mersaides McCauley, his former girl-

friend, until she lost consciousness. Two days later an

Illinois state court entered an emergency order of pro-

4 No. 09-3561

tection against Martinez on behalf of Mersaides. Later

that month the court issued a plenary order of protec-

tion. Both orders prohibited Martinez from having any

contact with Mersaides.

On two separate occasions, the Cook County State’s

Attorney’s Office informed Martinez’s parole officer at

IDOC of the battery charge and arrest. The arrest was a

parole violation and subjected Martinez to immediate

detention without bail until his trial on the domestic-

battery charge. Despite having received this informa-

tion, no one at IDOC ever issued a parole-violation

warrant against Martinez. After his release on bail, Marti-

nez continued to contact Mersaides, repeatedly violating

the orders of protection. The complaint alleges that Chi-

cago police were aware of these violations but never

arrested Martinez.

That Martinez remained a free man ended tragically

for Mersaides. As she was leaving a church service on

the evening of April 6, 2008, Martinez blocked her

vehicle with his own, trapping her in the church

parking lot. He shot her multiple times, and she died of

the gunshot wounds 30 minutes later. After leaving

the scene, Martinez turned the gun on himself and com-

mitted suicide.

Mersaides’s father, Brewster McCauley, filed this suit

as special administrator of his daughter’s estate. The

complaint alleged 13 federal and state claims (primarily

for deprivation of due process and equal protection, and

for wrongful death) against the City of Chicago and

unidentified Chicago police officers, IDOC, various IDOC

No. 09-3561 5

officials, then-IDOC Director Roger Walker, and Martinez’s

estate. The city and state defendants removed the case to

federal court and moved to dismiss pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. The

district court granted the motion, dismissed the federal

claims, and declined to exercise supplemental jurisdic-

tion over the state-law claims. See 28 U.S.C. § 1367(c)(3);

Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d

599, 607 (7th Cir. 2008).

Only the equal-protection claims against the City and

Walker are at issue on appeal. The claim against the City

was a policy-or-practice claim under Monell v. Depart-

ment of Social Services, 436 U.S. 658, 694 (1978). The com-

plaint variously alleges that the City failed to have ade-

quate policies in place for the protection of female

victims of domestic violence. The court began its analysis

of this claim by rejecting McCauley’s contention that

female victims of domestic violence are a “suspect class”

for equal-protection purposes. The judge opted for

rational-basis review and then concluded that to avoid

dismissal, McCauley needed to show that Mersaides

was a member of a protected class. Noting that “protected

class” and “suspect class” mean the same thing in equal-

protection doctrine, the judge held that McCauley

could not establish a necessary prerequisite for a claim

under the Equal Protection Clause; that is, because

Mersaides did not belong to a suspect class, she did not

belong to a protected class either. That meant, the court

held, that McCauley could not satisfy the first require-

ment of a prima facie case of discrimination under the

Equal Protection Clause. Finally, the court held that the

6 No. 09-3561

complaint failed to state a “class of one” equal-protection

claim against the City.

As for the claim against IDOC Director Walker, the

district court held that the Eleventh Amendment’s

sovereign-immunity protections barred McCauley from

recovering damages against him in his official capacity.

See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363

(2001); Peirick v. IUPUI Athletics Dep’t, 510 F.3d 681, 695

(7th Cir. 2007); Joseph v. Bd. of Regents of the Univ. of Wis.

Sys., 432 F.3d 746, 748 (7th Cir. 2005). McCauley asked the

court for a limited opportunity to conduct discovery in

an effort to find a factual basis for a personal-capacity

claim against Walker. The court denied this request,

essentially holding that it would be futile. Because

McCauley’s equal-protection claim against the City

failed as a matter of law, the court thought any similar

claim against Walker in his personal capacity would fail

as well.

II. Discussion

A. McCauley’s Equal-Protection Claim Against the City

We review de novo the district court’s order dismissing

the equal-protection claim against the City. Brooks v. Ross,

578 F.3d 574, 578 (7th Cir. 2009). To avoid dismissal,

McCauley’s complaint must contain allegations that

“ ‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim

has facial plausibility when the plaintiff pleads factual

No. 09-3561 7

content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id.

We note first that the district court’s analysis of

McCauley’s claim against the City suffers from some

analytical confusion; it conflates several distinct strains

of equal-protection doctrine. The court began by

holding that strict scrutiny did not apply because

female victims of domestic violence are not a “suspect

class” for purposes of equal-protection analysis. The

court then opted for rational-basis review, bypassing

any form of intermediate scrutiny. The judge then took

a detour into the caselaw that applies to claims of dis-

crimination in public employment under the Equal Pro-

tection Clause, citing Brown v. Budz, 398 F.3d 904, 916

(7th Cir. 2005), and Salas v. Wisconsin Department of Cor-

rections, 493 F.3d 913, 926 (7th Cir. 2007), for the ele-

ments of a prima facie case under the burden-shifting

approach borrowed from Title VII. Using this framework,

the court held that because female domestic-violence

victims are not a protected class, McCauley could not

establish the first requirement of a prima facie case of

discrimination. Finally, the court held that because the

equal-protection claim was premised on Mersaides’s

group affiliation as a victim of domestic violence, the

complaint did not state a claim for a “class of one” equal-

protection violation. See generally, Vill. of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000) (recognizing a “class of

one” equal-protection claim); Srail v. Vill. of Lisle, Ill., 588

F.3d 940, 943-44 (7th Cir. 2009) (discussing the elements

of a “class of one” claim).

8 No. 09-3561

This analysis is problematic for several reasons. For

starters, analyzing the equal-protection claim under class-

of-one doctrine was error. This is not a class-of-one

case; McCauley has never contended that it is. Nor

is the burden-shifting prima facie case methodology

appropriate here. That formula has been used in

employment-discrimination claims arising under the

Equal Protection Clause or 42 U.S.C. § 1981 because equal-

protection claims alleging discrimination in public em-

ployment can be analogized to claims under Title VII.

Importing the prima facie case requirements from Title

VII doctrine makes sense in the public-employment

context, but that approach does not apply more

broadly to all equal-protection cases. Finally, whether

female domestic-violence victims are properly con-

sidered a “suspect” or “protected” class for equal-protec-

tion analysis is a merits question. The answer deter-

mines what level of judicial review applies to the defen-

dant’s actions, see, e.g., Srail, 588 F.3d at 943, a question

not normally appropriate for resolution at the

pleadings stage.1

1

We note for completeness that McCauley makes alternative

arguments on this point. He first argues that female victims

of domestic violence ought to be recognized as a suspect class

for equal-protection analysis, requiring strict scrutiny of the

City’s actions. He argues in the alternative that the claim

should be treated as more generally alleging discrimination

on the basis of gender, which calls for the application of inter-

mediate scrutiny. See United States v. Virginia, 518 U.S. 515,

531 (1996).

No. 09-3561 9

Though the district court’s analysis was faulty, the

equal-protection claim against the City was properly

dismissed. To state a Monell claim against the City for

violation of Mersaides’s right to equal protection,

McCauley was required to “plead[] factual content that

allows the court to draw the reasonable inference” that

the City maintained a policy, custom, or practice of in-

tentional discrimination against a class of persons to

which Mersaides belonged. See Iqbal, 129 S. Ct. at 1949;

Monell, 436 U.S. at 694; Srail, 588 F.3d at 943. He did not

meet this burden.

In reviewing the sufficiency of a complaint under the

plausibility standard announced in Twombly and Iqbal, we

accept the well-pleaded facts in the complaint as true,

but legal conclusions and conclusory allegations merely

reciting the elements of the claim are not entitled to

this presumption of truth. Iqbal, 129 S. Ct. at 1951. After

excising the allegations not entitled to the presumption,

we determine whether the remaining factual allega-

tions “plausibly suggest an entitlement to relief.” Id. The

“[f]actual allegations must be enough to raise a right

to relief above the speculative level.” Twombly, 550 U.S.

at 555. That is, the complaint must contain “allegations

plausibly suggesting (not merely consistent with)” an

entitlement to relief. Id. at 557. If the allegations give rise

to an “obvious alternative explanation,” Iqbal, 129 S. Ct.

at 1951; Twombly, 550 U.S. at 567, then the complaint

may “stop[] short of the line between possibility and

plausibility of ‘entitle[ment] to relief,’ ” Twombly, 550 U.S.

at 557. Making the plausibility determination is “a con-

text-specific task that requires the reviewing court to

10 No. 09-3561

draw on its judicial experience and common sense.”

Iqbal, 129 S. Ct. at 1950.

We have interpreted Twombly and Iqbal to require the

plaintiff to “provid[e] some specific facts” to support

the legal claims asserted in the complaint. Brooks, 578

F.3d at 581. The degree of specificity required is not

easily quantified, but “the plaintiff must give enough

details about the subject-matter of the case to present

a story that holds together.” Swanson v. Citibank, N.A., 614

F.3d 400, 404 (7th Cir. 2010). The required level of

factual specificity rises with the complexity of the claim.

Id. at 405 (“A more complex case . . . will require more

detail, both to give the opposing party notice of what

the case is all about and to show how, in the plaintiff’s

mind at least, the dots should be connected.”).

Brooks and Swanson help illustrate the factual heft

required to survive a motion to dismiss after Twombly

and Iqbal. In Brooks the plaintiff was prosecuted for

official misconduct and wire fraud relating to his duties

as a Prison Review Board member. 578 F.3d at 578. He

was acquitted on these charges and filed suit alleging

a vast conspiracy by fellow board members, a state

police officer, an IDOC employee, and the Illinois

Attorney General based on their participation in or co-

operation with the investigation against him. Id. The

complaint alleged that the defendants “knowingly, inten-

tionally[,] and maliciously prosecute[d]” him in retalia-

tion for his exercise of constitutionally protected rights.

Id. at 582. We held that this was “nothing more” than a

“formulaic recitation of the cause of action,” insufficient

No. 09-3561 11

to state a claim under Twombly and Iqbal. Id. The

remaining allegations—primarily explaining each defen-

dant’s role in the investigation—were just as consistent

with a lawful investigation as an illegal conspiracy to

retaliate against Brooks. Id. at 581 (“The behavior Brooks

has alleged that the defendants engaged in is just as

consistent with lawful conduct as it is with wrongdoing.”).

Accordingly, we affirmed the dismissal of the com-

plaint. Id. at 582.

In Swanson, on the other hand, we applied Twombly/

Iqbal and held that the plaintiff’s allegations were suf-

ficient to survive a motion to dismiss on at least some

of her claims. Swanson, an African-American loan appli-

cant who was turned down for a loan, claimed that that

the denial was based on her race in violation of the

Fair Housing Act (among other causes of action). 614 F.3d

at 402-03. Her complaint alleged that the defendants

intentionally undervalued her home and that they did

so because of her race. Id. at 403. She alleged that a third-

party appraiser had valued the home at $240,000, much

higher than the defendant’s valuation of $170,000. Id.

We held that because Swanson’s claim of housing dis-

crimination was uncomplicated, Swanson’s pleading

burden under Twombly and Iqbal was satisfied. Id. at 404.

Her complaint contained factual allegations identifying

(1) who discriminated against her; (2) the type of dis-

crimination that occurred; and (3) when the discrimina-

tion took place. Id. at 405. We held that given the straight-

forward nature of the claim, Twombly/Iqbal required

nothing more. Id. (citing Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 511-12 (2002)).

12 No. 09-3561

This case is more like Brooks than Swanson. Many of

the alleged “facts” are actually legal conclusions or ele-

ments of the cause of action, which may be disregarded

on a motion to dismiss. See Iqbal, 129 S. Ct. at 1951. For

example, McCauley alleges that the City “has an

unwritten custom, practice and policy to afford lesser

protection or none at all to victims of domestic violence”

and that “[t]here is no rational basis” for this purported

policy. Similarly, McCauley alleged the following:

[The City], through its agents, employees and/or

servants, acting under color of law, at the level of

official policy, practice, and custom, with deliberate,

callous, and conscious indifference to McCauley’s

constitutional rights, authorized, tolerated, and in-

stitutionalized the practices and ratified the illegal

conduct herein detailed, and at all times material to

this Complaint, [the City] had interrelated de facto

policies, practices, and customs.

These are the legal elements of the various claims

McCauley has asserted; they are not factual allegations

and as such contribute nothing to the plausibility

analysis under Twombly/Iqbal.

Once the legal conclusions are disregarded, just one

paragraph of factual allegations remains:

Defendant violated McCauley’s constitutional rights

under 42 U.S.C. § 1983 by:

a. failing to provide adequate security and

promptly arrest Martinez;

No. 09-3561 13

b. failing to promulgate any policy to ensure

the prompt arrest of individuals guilty of

violating protective orders;

c. maintaining a policy or custom of failing

to timely arrest violators of protective orders;

d. maintaining a custom and practice of failing

to adequately train officers concerning the

necessity of promptly arresting individuals

guilty of violating protective orders;

e. maintaining a policy or custom of failing to

have safeguards in place to ensure that viola-

tors of protective orders were timely arrested;

f. failing to have a custom, practice and policy

in effect to verify whether someone who is

arrested for domestic violence is on parole;

g. failing to have a custom, practice and policy

to communicate with state officials and law

enforcement officials regarding domestic

violence arrests;

h. failing to have a custom, practice and policy

in effect in order to communicate with

parole agents on domestic violence arrests;

i. failing to have a custom, practice and policy

in effect to verify whether an arrestee of a

domestic violence offense is on parole prior

to issuing an order of protection; and

j. maintaining a custom, practice and policy of

ignoring the seriousness of domestic violence

arrests.

14 No. 09-3561

McCauley maintains that these allegations are suf-

ficient to state a Monell equal-protection claim against

the City. We disagree. In order to state a facially

plausible equal-protection claim under Monell, the

factual allegations in McCauley’s complaint must allow

us to draw the reasonable inference that the City estab-

lished a policy or practice of intentionally discriminating

against female victims of domestic violence in the provi-

sion of police protection. That is, McCauley needed to

allege enough “by way of factual content to ‘nudg[e]’ his

claim of purposeful discrimination ‘across the line

from conceivable to plausible.’ ” Iqbal, 129 S. Ct. at 1952

(quoting Twombly, 550 U.S. at 570)).

Because the Equal Protection Clause is “concerned . . .

with equal treatment rather than with establishing

entitlements to some minimum of government services,

[it] does not entitle a person to adequate, or indeed to

any, police protection.” Hilton v. City of Wheeling, 209

F.3d 1005, 1007 (7th Cir. 2000); see also DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 196

(1989) (The government’s failure to protect an individual

from private violence is not actionable under the Due

Process Clause.). “On the other hand, selective with-

drawal of police protection, as when the Southern states

during the Reconstruction era refused to give police

protection to their black citizens, is the prototypical denial

of equal protection.” Hilton, 209 F.3d at 1007. The allega-

tions in the paragraph quoted above do not plausibly

suggest that the City maintained a policy or practice of

selective withdrawal of police protection. To the contrary,

the complaint alleges that the City failed to have par-

No. 09-3561 15

ticularized practices in place for the special protection of

domestic-violence victims. In essence, the complaint

alleges that the City failed to promulgate specific

policies for this particular class of crime victims, not that

the City denied this class of victims equal protection. At

most, the factual allegations in the complaint plausibly

suggest the uneven allocation of limited police-protection

services; they do not plausibly suggest that the City

maintained an intentional policy or practice of omitting

police protection from female domestic-violence victims

as a class.

Just as in Brooks, McCauley’s factual allegations are

entirely consistent with lawful conduct—here a lawful

allocation of limited police resources. 578 F.3d at 581. And

the complexity of McCauley’s equal-protection claim

distinguishes this case from Swanson. The housing-dis-

crimination claim at issue in Swanson was quite straight-

forward. Putting the defendants on notice of what it

entailed was simple, so Swanson did not need to plead

much by way of factual content in her complaint. There,

in the absence of an obvious legal alternative explana-

tion, pleading the “who, what, and when” of the dis-

crimination claim was enough. See Swanson, 614 F.3d at

405. Here, McCauley’s equal-protection claim is more

complicated and counterintuitive. Yet he has alleged

only that the City failed to have particularized safe-

guards in place for the special protection of domestic-

violence victims. For the reasons we have explained, this

does not state a Monell equal-protection claim against

the City. This claim was properly dismissed.

16 No. 09-3561

B. Predismissal Discovery Against Walker

McCauley does not challenge the district court’s order

dismissing the official-capacity equal-protection claim

against Walker on Eleventh Amendment grounds. In-

stead, he argues that the court should have allowed him

to conduct limited discovery regarding Walker’s per-

sonal involvement in the events leading to Mersaides’s

murder on the chance he might unearth a basis for a

claim against Walker in his individual capacity. We

review the denial of McCauley’s discovery request for

abuse of discretion. Griffin v. Foley, 542 F.3d 209, 223

(7th Cir. 2008).

The district court’s refusal to authorize Rule 12(b)(6)

discovery was based largely on the court’s view that any

personal-capacity claim against Walker would suffer

from the same deficiencies as the Monell claim against

the City; namely, that Mersaides was not a member of a

“suspect” or “protected” class for equal-protection pur-

poses. For the reasons we have explained, this analysis

is flawed. We nonetheless affirm on other grounds.

To determine whether pre-Rule 12(b)(6) discovery

should have been available in this case, we need not

decide the broader and more provocative question

whether it should be available in general, in light of the

Twombly/Iqbal pleading regime.2 This is not a proper case

2

Proposals for some form of “Rule 12(b)(6) discovery” have

proliferated in academic circles in the wake of Twombly and

Iqbal. See, e.g., Arthur R. Miller, From Conley to Twombly to

(continued...)

No. 09-3561 17

for Rule 12(b)(6) discovery in any event. McCauley’s

counsel conceded at oral argument that he “has nothing”

to suggest that Walker was personally involved in any of

the events leading to Mersaides’s death. Indeed, based on

the complaint, there is no reason at all to think the IDOC

director had any personal role in Martinez’s parole super-

vision, much less the specific events preceding Mersaides’s

death. Accordingly, the denial of McCauley’s request

for Rule 12(b)(6) discovery was not an abuse of discretion.

A FFIRMED.

2

(...continued)

Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60

D UKE L. J. 1, 105-10 (2010); Scott Dodson, New Pleading, New

Discovery, 109 M ICH . L. R EV . 53 (2010); Edward A. Hartnett,

Taming Twombly, Even After Iqbal, 158 U. P A . L. R EV . 473 (2010).

The theory underlying this effort is that the plausibility

standard for surviving a motion to dismiss requires new tools

to meet the higher bar, especially where the information

necessary to survive a motion to dismiss is wholly or largely

in the defendant’s hands. See Miller, supra, at 105 (“Since the

combined effect of Twombly, Iqbal, and the summary judgment

trilogy is to require a plaintiff to have greater knowledge

concerning his claim either before instituting an action or

immediately thereafter, inequality of information access

during those critical time frames poses a significant—if not

the most significant—problem for many people seeking af-

firmative relief.”).

18 No. 09-3561

H AMILTON, Circuit Judge, dissenting in part. I agree

with my colleagues that plaintiff has failed to state a

claim against defendant Walker. I respectfully dissent

from the rejection of plaintiff’s equal protection claim

against the City of Chicago. I am skeptical about

plaintiff’s ability to prove the claim, but his complaint

should be sufficient to survive a motion to dismiss for

failure to state a claim, even under the new and

subjective pleading standards announced in Ashcroft v.

Iqbal, 129 S. Ct. 1937 (2009). I explain first my skepticism,

then some of the problems raised by Iqbal, and finally

why the complaint should survive the motion to dismiss.

Mr. McCauley’s suit seeks to enforce the Fourteenth

Amendment’s equal protection requirements on the

decisions of a major city police force about how to

allocate its resources. Plaintiff’s only viable equal pro-

tection theory is that the Chicago police department

made a deliberate decision to minimize the police pro-

tection available to victims of domestic violence, and

that the police did so because of an intentional animus

against women, who make up the vast majority of adult

victims of domestic violence. See Bureau of Justice Statis-

tics, U.S. Dept. of Justice, Family Violence Statistics 11 (2005),

available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fvs.

pdf (last visited Oct. 17, 2011) (finding that women

were 84% of spouse abuse victims and 86% of victims

of abuse at the hands of a boyfriend or girlfriend).

As I said, I am skeptical about the plaintiff’s ability to

prove such a claim. We require proof of intentional

animus and do not hold municipalities liable for a mere

No. 09-3561 19

failure to arrest, no matter how tragic the consequences

appear in hindsight. E.g., Hernandez v. City of Goshen, 324

F.3d 535, 538 (7th Cir. 2003), following DeShaney v.

Winnebago County Dep’t of Social Services, 489 U.S. 189

(1989). This approach avoids difficult questions that are

all but unanswerable by courts in practice. To begin

with, how should the police allocate their resources? And

how should a federal court measure equality in the al-

location of those resources? Should we focus on patrol

officers on the beat per square mile? Per capita? Based on

neighborhood crime rates? How should we gauge the

seriousness of different crimes? Surely armed robberies

deserve more attention than acts of vandalism, and

attacks on vulnerable persons probably deserve more

attention than bar fights.

A few moments of reflection could generate a list of

many more variables and factors that a sensible citizen

would want the police to consider in deciding how to

allocate their resources for crime prevention. And no

matter how a police department decides to allocate its

resources, it will be possible to identify categories of

crime victims who receive below-average attention from

the police. There is no way to ensure complete equality,

and the infinite variations in the ways to measure

equality require any court considering the question to

act with great caution.

And yet the courthouse door must remain open to

claims that the police are systematically denying some

people the literal equal protection of the law. The history

of the Reconstruction after the Civil War reminds us that

20 No. 09-3561

state and local governments deliberately and systemati-

cally denied equal protection of the laws to former

slaves and their descendants. More recently, the

Jim Crow laws, internment of Japanese Americans, segre-

gation, voting restrictions, gender discrimination, and

harassment of Muslim Americans in the wake of the

September 11, 2001 terrorist attacks all remind us that

concerns about equal protection are not just matters of

bygone history. A deliberate decision to withdraw or

substantially reduce police protection to groups based

on race, national origin, gender, religion, or political

affiliation should qualify for federal court attention

and remedies.

We and other federal courts have often recognized

the legal viability of such claims, even if they are difficult

to prove. See, e.g., Schroeder v. Hamilton School Dist., 282

F.3d 946, 957 (7th Cir. 2002) (“the core violation of

the equal protection clause is indeed the selective with-

drawal of police protection from a disfavored group”)

(Posner, J., concurring); Hilton v. City of Wheeling, 209

F.3d 1005, 1007 (7th Cir. 2000), citing Slaughter-House

Cases, 83 U.S. (16 Wall.) 36, 70 (1872); Elliot-Park v.

Manglona, 592 F.3d 1003, 1007-08 (9th Cir. 2010) (refusing

to dismiss plaintiff’s claim that officers’ failure to investi-

gate and arrest a drunk driver because of alleged racial

favoritism violated equal protection); Price-Cornelison

v. Brooks, 524 F.3d 1103, 1113-14 (10th Cir. 2008) (affirming

denial of qualified immunity where no rational basis

was asserted for alleged policy of providing less pro-

tection to lesbian victims of domestic violence than to

No. 09-3561 21

heterosexual victims), citing Watson v. City of Kansas City,

Kansas, 857 F.2d 690 (10th Cir. 1988); see also Okin v.

Village of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415,

438-39 (2d Cir. 2009) (affirming summary judgment

because plaintiff had not demonstrated the requisite

disparate treatment of her domestic violence com-

plaint); Burella v. City of Philadelphia, 501 F.3d 134, 148-49

(3d Cir. 2007).

As a claim that may seem improbable but not impos-

sible, difficult to prove but not implausible, this case

poses a test for federal civil pleading standards in the

wake of Ashcroft v. Iqbal. In Iqbal, plaintiffs alleged that

they had been mistreated by federal law enforcement

officials because of their religion and their national

origin in the wake of the September 11, 2001 terrorist

attacks on the United States. The appeal concerned the

plaintiffs’ claims against the Attorney General of the

United States and the Director of the Federal Bureau of

Investigation. The Supreme Court recognized that the

alleged actions of the federal law enforcement officials

could have been perfectly legal so long as they were

based on even-handed application of the law, but that

mistreatment based deliberately on religion or national

origin could violate the Constitution. 129 S. Ct. at 1952.

The Court held in Iqbal that the plaintiffs had failed

to allege a plausible claim of religious or national origin

discrimination against Attorney General Ashcroft

and FBI Director Mueller. Although the plaintiffs had

alleged discriminatory intent, the Court found that the

complaint did not “contain any factual allegation suf-

22 No. 09-3561

ficient to plausibly suggest petitioners’ discriminatory

state of mind.” Id. The Court wrote that determining

whether a claim is plausible would “be a context-specific

task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 1950. The

method of analysis employed by the Court in Iqbal in-

volved first “identifying the allegations in the complaint

that are not entitled to the assumption of truth” because

they are merely a “formulaic recitation of the elements”

of the claim and thus “conclusory.” Id. at 1951. The

Court then looked only to the portions of the com-

plaint it deemed to be “factual allegations” to make

a subjective plausibility determination.

As a subordinate federal court, it is our responsibility

to do our best to apply the law as stated in Iqbal. My

colleagues do so here, and the Iqbal standard is clearly

decisive for the panel majority. The problem here is that

it also our responsibility to do our best to apply other

Supreme Court decisions involving pleading standards,

including Leatherman v. Tarrant County Narcotics Intel-

ligence and Coordination Unit, 507 U.S. 163 (1993); Erickson

v. Pardus, 551 U.S. 89 (2007); and Swierkiewicz v. Sorema

N.A., 534 U.S. 506 (2002), as well as the Federal Rules

of Civil Procedure as adopted by the Court and

approved by Congress, and the form pleadings that

are part of the Federal Rules of Civil Procedure and

that were also approved by the Court and Congress. Iqbal

is in serious tension with these other decisions, rules,

and forms, and the Court’s opinion fails to grapple with

or resolve that tension. I do not believe it is an exaggera-

No. 09-3561 23

tion to say that these decisions, rules, and forms simply

conflict with Iqbal.

As a result of this unresolved tension, since Iqbal was

decided, the lower federal court decisions seeking to

apply the new “plausibility” standard are wildly incon-

sistent with each other, and with the conflicting decisions

of the Supreme Court. Iqbal has also generated a small

blizzard of articles by law professors and practitioners

critiquing the decision and analyzing its implications.

One of the most useful and persuasive of those is

Professor Arthur Miller’s article, From Conley to Twombly

to Iqbal: A Double Play on the Federal Rules of Civil Procedure,

60 Duke L. J. 1 (2010). See also, e.g., Robert Bone, Plausibility

Pleading Revisited and Revised: A Comment on Ashcroft v.

Iqbal, 85 Notre Dame L. Rev. 849 (2010); Patricia W.

Hatamyar, The Tao of Pleading: Do Twombly and Iqbal

Matter Empirically?, 59 Am. U. L. Rev. 553 (2010) (finding

statistically significant differences in the treatment of

motions to dismiss, particularly with regard to civil

rights cases); Hon. Colleen McMahon, The Law of Unin-

tended Consequences: Shockwaves in the Lower Courts after

Bell Atlantic v. Twombly, 41 Suffolk U. L. Rev. 851 (2008).

Without revisiting the entirety of this lengthy critique,

I note below some of the key problems that Iqbal presents

for federal district and circuit judges, and the parties

and attorneys who litigate cases before them:

First, Iqbal’s reasoning and holding conflict with

Rule 9(b), which requires that a party alleging fraud or

mistake “state with particularity the circumstances con-

24 No. 09-3561

stituting fraud or mistake.” As for other states of mind,

however, the rule provides: “Malice, intent, knowledge,

and other conditions of a person’s mind may be alleged

generally.” In this context, “generally” means as a conclu-

sion, without specifying underlying facts that would

support the inference. For example, this provision has

long been understood not to require that discriminatory

intent be alleged with particularity in employment dis-

crimination cases. See Swierkiewicz, 534 U.S. at 512 (unani-

mously rejecting requirement that employment discrim-

ination complaint plead facts satisfying elements of

prima facie case, because “imposing the Court of Ap-

peals’ heightened pleading standard in employment

discrimination cases conflicts with Federal Rule of Civil

Procedure 8(a)(2)”).

Note that Bell Atlantic Corp. v. Twombly endorsed the

continued vitality of Swierkiewicz. 550 U.S. 544, 569-70

(2007); see also Miller, 60 Duke L. J. at 31. Iqbal also

seemed to endorse the key Swierkiewicz holding re-

garding heightened pleading standards, noting that

Rule 9 “excuses a party from pleading discriminatory

intent under an elevated pleading standard.” 129 S. Ct. at

1954 (disclaiming a “rigid rule requiring the detailed

pleading of a condition of mind” as “undesirable”). But

in the analysis that was actually decisive in the

case, however, the Iqbal Court held that under Rule 8

the complaint lacked “any factual allegation sufficient

to plausibly suggest petitioners’ discriminatory state of

mind.” Id. at 1952. Iqbal does not elaborate on the nature

and number of specific facts that must be included in

the Rule 8 “short and plain statement of the claim” in

No. 09-3561 25

order to achieve plausibility. The Court’s application

of Rule 8 to impose a more demanding pleading

standard for discriminatory intent is not consistent with

its stated adherence to Rule 9 and its express authoriza-

tion of general pleading of discriminatory intent and

most other states of mind. The Court’s statement about

Rule 9(b) that “ ‘generally’ is a relative term” does not

solve the problem or give practical guidance to district

courts. See id. at 1954.

Second, Iqbal conflicts with other recent Supreme Court

decisions. Iqbal did not overrule or question a number

of the Court’s prior cases on notice pleading. See

Leatherman, 507 U.S. at 168 (unanimously rejecting height-

ened pleading standard for custom-or-policy claim

under 42 U.S.C. § 1983); Erickson, 551 U.S. at 90 (after

Twombly, summarily reversing dismissal of pro se

prisoner’s complaint for deliberate indifference to

medical needs where the court of appeals deemed the

complaint too “conclusory” with respect to whether

defendant’s actions caused “substantial harm,” and

finding that: “The holding departs in so stark a manner

from the pleading standard mandated by the Federal

Rules of Civil Procedure that we grant review.”). Many

cases, citing Leatherman, reject heightened pleading stan-

dards for the elements of a Monell custom or policy

claim such as the one alleged here. See, e.g., Jackson v.

Marion County, 66 F.3d 151, 153 (7th Cir. 1995) (“Leatherman

makes clear that the federal courts are not to interpolate

a requirement of fact pleading into the federal rules.”).

As noted, Iqbal also created tension with Swierkiewicz

by endorsing its holding while simultaneously ap-

26 No. 09-3561

pearing to require the same sort of fact-specific

pleading of discriminatory intent that the Swierkiewicz

Court rejected.

Third, Iqbal conflicts with the form complaints

approved by the Supreme Court and Congress as part of

the Federal Rules of Civil Procedure. Rule 84 provides

that the forms in the appendix “suffice under these

rules and illustrate the simplicity and brevity that

these rules contemplate.” Iqbal did not purport to over-

rule or amend Rule 84 or the forms, but it is difficult

to reconcile the new “plausibility” standard with those

forms. Many of the approved forms require virtually

no explanation of the underlying facts as long as the

defendant is informed of the event or transaction that

gave rise to the claim, according to the broad notice

purpose of the rules.

For example, Form 15 is a complaint for the conver-

sion of property. It is sufficient for the plaintiff to allege

that on a stated date at a stated place, “the defendant

converted to the defendant’s own use property owned

by the plaintiff,” and to identify the converted prop-

erty and state its approximate value. Nothing more

is needed — no factual details about the defendant’s

actions, and no allegation concerning the defendant’s

state of mind. Under the plausibility standard of Iqbal,

this form complaint seems remarkably “conclusory,” yet

it is sufficient according to Rule 84.

Similarly, Form 11 is a complaint for negligence. Apart

from jurisdiction and damages, it is sufficient for the

complaint to say only that on a stated date at a stated

No. 09-3561 27

place, defendant “negligently drove a motor vehicle

against the plaintiff.” Again, nothing more is needed

about just what the defendant did or why those ac-

tions amounted to negligence. This also seems quite

“conclusory,” but it is sufficient under Rule 84. But cf.

Branham v. Dolgencorp, Inc., 2009 WL 2604447, *2

(W.D. Va. Aug. 24, 2009) (applying Iqbal standard to

dismiss slip-and-fall negligence complaint because it

failed to allege “facts that show how the liquid came to

be on the floor, whether the Defendant knew or should

have known of the presence of the liquid, or how the

Plaintiff’s accident occurred”).

Even Form 21, which includes a claim to set aside a

fraudulent conveyance, is remarkably terse. That portion

of the form complaint says only that on a stated date, the

defendant conveyed all or a specified portion of defen-

dant’s real and personal property to another defendant

“for the purpose of defrauding the plaintiff and hind-

ering or delaying the collection of the debt.” Again,

nothing more is needed about the circumstances of

the conveyance, and the “general” or “conclusory” allega-

tion of a purpose to defraud is sufficient. One could go

on with parallel analysis of the other form complaints.

Unless one can plausibly explain away the tension

between Iqbal and Rule 9(b) and the Rule 84-endorsed

form complaints, then Iqbal conflicts with the Rules En-

abling Act, 28 U.S.C. § 2071 et seq., and the prescribed

process for amending the Federal Rules of Civil Proce-

dure. See Swierkiewicz, 534 U.S. at 515, citing Leatherman,

507 U.S. at 168; Hill v. McDonough, 547 U.S. 573, 582 (2006)

28 No. 09-3561

(“Specific pleading requirements are mandated by the

Federal Rules of Civil Procedure, and not, as a general

rule, through case-by-case determinations of the federal

courts.”).

Fourth, Iqbal’s reliance on the fact/conclusion dichot-

omy is highly subjective, and returns courts to the long

disapproved methods of analysis under the regime of

code pleading. See Miller, 60 Duke L. J. at 23-24. Is an

allegation that “defendant was negligent” or that “defen-

dant acted with racially discriminatory intent” an allega-

tion of fact or a conclusion? Calling these assertions

elements of the claim is not logically sufficient to deter-

mine when and if they should be denied a presumption of

truth. Even in Iqbal, the Court presumed true some as-

sertions that could be characterized as conclusory, while

disapproving of others. See 129 S. Ct. at 1961 (Souter, J.,

dissenting). Iqbal’s reliance on the fact/conclusion dichot-

omy makes the difference indeterminate. Application

of the dichotomy is leading to judge-specific and case-

specific differences in outcome that confuse everyone

involved. The long legal history of code pleading, though

perhaps distant enough in time to have been largely

forgotten by most of todays’ lawyers and judges, pro-

vides ample additional evidence on this point.

Fifth, Iqbal’s reliance on “judicial experience and

common sense” invites the highly subjective and incon-

sistent results that have been observed. The Iqbal con-

cept of plausibility is “context-specific.” 129 S. Ct. at 1950.

As a practical matter, the concept invites district judges

to exercise their individual views of the likely merits of

No. 09-3561 29

the case at the outset, when the only information

available is the complaint. Worse still, an uncritical

reading of the Court’s “obvious alternative explanation”

reasoning seems to invite judges to weigh competing

explanations for alleged conduct and dismiss cases merely

because they believe one explanation over another. See 129

S. Ct. at 1951 (referring to “more likely explanations”). In

application, this standard bears a striking resemblance to

the most stringent pleading requirement in American

civil law, for pleading scienter in securities fraud claims,

pursuant to the specific direction of Congress in the

Private Securities Litigation Reform Act. See 15 U.S.C.

§ 78u-4(b)(2) (requiring plaintiff to “state with par-

ticularity facts giving rise to a strong inference that the

defendant acted with the required state of mind”); accord,

Tellabs, Inc. v. Makor Issues and Rights, Ltd., 551 U.S. 308,

323-24 (2007) (explaining that a “strong inference” must be

“cogent and compelling, thus strong in light of other

explanations” for the defendant’s actions).

Congress has not imposed such a demanding standard

for pleading in any other context — including civil rights

and employment discrimination cases, which often turn

on whether a defendant’s explanation for a decision is

legitimate or merely a pretext covering for unlawful

bias. Rule 9(b) and the Supreme Court decisions in

Swierkiewicz and Leatherman permit plaintiffs to plead

intent generally, meaning without the sort of specifics

required under the PSLRA. But if the Iqbal pleading

standard is applied in the district court, plaintiffs who

already face the uphill battle of proving secret intent

30 No. 09-3561

must now contend with the possibility of pre-discovery

dismissal whenever the alleged pretext asserted by de-

fendants in their motion to dismiss sounds plausible to

the common sense of the particular judge. The potential

harm of Iqbal in this context is that outcomes will vary

based on how different judges view the plausibility

of, for example, a police policymaker harboring and

acting on improper motives toward women who com-

plain of domestic violence.

As we struggle with these problems, it is important to

recall that the Iqbal Court disclaimed such a probabilistic

balancing, absent access to evidence, to determine which

theory of the case seems more likely true. See 129 S. Ct. at

1949 (“The plausibility standard is not akin to a ‘prob-

ability requirement’ . . . .”). Although the Iqbal opinion

used phrases such as “more likely,” and “as between,”

it should not be read to say that a plaintiff should lose

on the pleadings because a defendant had a more

plausible alternative explanation. Rather, in light of the

alternative explanation, plaintiff needed to “allege more

by way of factual content to ‘nudg[e]’ his claim of pur-

poseful discrimination ‘across the line from conceivable

to plausible.’ ” 129 S. Ct. at 1952 (quoting Twombly, 550

U.S. at 570). A plausible claim can seem less plausible

or probable than the obvious alternative and still survive

dismissal. Whether this distinction involves a real dif-

ference will depend on the care judges take not to ratify

potential false pretexts as “obvious” when making

their common-sense plausibility determinations on bare

pleadings.

No. 09-3561 31

For example, in this case, the majority relies on Brooks,

in which we followed the reasoning in Twombly and said

that the recited behavior was “just as consistent with

lawful conduct as it is with wrongdoing.” Brooks v. Ross,

578 F.3d 574, 581 (7th Cir. 2009). But this does not mean

that we upheld the dismissal because a tie goes to the

defendant. On its face, Iqbal leaves undisturbed the

factual presumption in favor of plaintiff on a motion to

dismiss. Id. Rather, the claims were dismissed because,

absent more factual content, “Brooks’s allegations are

too vague to provide notice to defendants of the con-

tours of his . . . claim.” Id. at 581-82. The primary pur-

pose of notice pleading under Rule 8 is notice.

Implausible pleadings do harm primarily by failing to

ground themselves sufficiently in reality such that defen-

dants can know what is claimed. 1 Similarly, in Swanson

v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010), we

1

Some commentators have noted a concern, underlying

Twombly and Iqbal, with limiting defendants’ supposed

burden of complying with discovery. See Miller, 60 Duke L. J. at

53-59; Bone, 85 Notre Dame L. R. at 859. Others answer with

competing concerns about providing plaintiffs with access to

courts in order to discover the actual but often hidden explana-

tion for defendants’ harmful conduct. Given proper notice of the

sort of claim being asserted, the Federal Rules of Civil Pro-

cedure give courts and parties powerful tools to confine the

scope of discovery to relevant issues. See Fed. R. Civ. P. 26(b).

I respectfully suggest that effective use of those tools is

much more likely to control costs of litigation than the subjec-

tive and uncertain pleading standard of Iqbal, which has

been multiplying litigation of pleading disputes.

32 No. 09-3561

reversed dismissal of a complaint that only alleged

racial discrimination generally, mentioning just the per-

petrator and time-frame. These allegations were enough

to “give the opposing party notice of what the case is

all about.” Id. at 405.

The difference in result between Brooks and Swanson

did not depend, in my view, on the existence of an

obvious alternative explanation, which was present in

both cases. See id. at 411 (Posner, J., dissenting in part).

Nor is the Monell claim raised by McCauley here sub-

stantially more complicated than the discrimination

alleged in Swanson. Rather, whether each of these com-

plaints survives a Rule 12(b)(6) motion depends on a

highly subjective plausibility determination. That deter-

mination must be made with great care, guided by an

awareness of the core notice purpose behind Rule 8, as

well as knowledge of the consequence of dismissing

seemingly improbable, yet potentially meritorious, dis-

crimination claims at such an early stage.

A simple thought experiment underscores the dan-

gerous potential over-breadth of the Iqbal mode

of parsing complaints — of first applying too aggres-

sively the fact/conclusion dichotomy to a complaint,

and then applying the “obvious alternative explana-

tion” analysis to the facts that remain.

Imagine that as a federal district judge, you have read

Twombly and Iqbal and now must act on a motion to

dismiss an equal protection complaint in which the

key paragraph reads:

No. 09-3561 33

The educational opportunities provided by de-

fendants for infant plaintiffs in the separate all-Negro

schools are inferior to those provided for white

school children similarly situated in violation of the

equal protection clause of the Fourteenth Amendment

to the Constitution of the United States. The respects

in which these opportunities are inferior include

the physical facilities, curricula, teaching, resources,

student personnel services, access and all other ed-

ucational factors, tangible and intangible, offered to

school children in Topeka. Apart from all other

factors, the racial segregation herein practiced in

and of itself constitutes an inferiority in educational

opportunity offered to Negroes, when compared

to educational opportunity offered to whites.

Under the Iqbal approach, the first sentence merely

recites a legal conclusion regarding the elements of an

equal protection cause of action and thus should be

excluded from the Iqbal analysis. The third sentence is

similarly a bare conclusion that should also be ignored.

Only the middle sentence contains what might amount

to facts under Iqbal. A closer analysis, however, reveals

an arguably fatal lack of explanation regarding how the

listed items are inferior. The thrust of the sentence is a

bare conclusion that all factors, tangible and intangible,

contribute to the claimed deprivation. Does this complaint

provide the specific factual content required by Iqbal?

Even if the alleged “respects in which these oppor-

tunities are inferior” might properly be called allega-

tions of fact, it would be difficult for a claim of invidious

34 No. 09-3561

discrimination to seem plausible in light of the obvious

alternative explanations for these deficiencies. School

boards possess limited resources. Perhaps they simply

allocated those resources according to neutral factors.

Disparity in outcome is just as consistent with the

natural effects of lower socio-economic status as it

is with pernicious effects of racial segregation. Or so

the post-Iqbal argument might go.

The paragraph quoted above is, of course, taken

directly from plaintiffs’ amended complaint in Brown v.

Board of Education, filed on May 29, 1951. Amendment

to Paragraph Eight of the Amended Complaint, Brown

v. Board of Education, 98 F. Supp. 797 (D. Kan. 1951),

available at http://www.clearinghouse.net/detail.php?id=

5479 (last visited Oct. 17, 2011). We also know that

the conclusory allegation of the third sentence

eventually appeared as the holding of the unanimous

Supreme Court in Brown v. Board of Education,

347 U.S. 483, 495 (1954) (“Separate educational facilities

are inherently unequal.”). Under the standards of

Iqbal, however, it would be easy to argue that the

plaintiffs in Brown failed to state a plausible claim

for relief that could survive dismissal. The Court’s shift

to “plausibility” pleading, and the assignment of inter-

pretation of that standard to the subjective common-sense

of individual judges, has markedly increased the danger

of throwing out the proverbial baby with the bathwater.2

2

See also Miller, 60 Duke L. J. at 127-30 (applying a similar

hypothetical analysis to the complaint in the seminal notice

(continued...)

No. 09-3561 35

In the face of all these problems, what are the lower

federal courts to do? These are all sources of controlling

law that we are obliged to follow. Although careful analy-

sis may help the lower federal courts determine, for

example, that the Iqbal pleading standard would not

require a different result in particular cases, there will

be cases, and Mr. McCauley’s equal protection claim

appears to be one of them, where the standard makes

a decisive difference.

The first thing we can do is recognize the uncertainty

that litigants, their lawyers, and district courts now

face. As a result of that uncertainty, the courts of

appeals should insist that in all but the most unusual

situations, a party whose pleading is dismissed based

on the Iqbal plausibility standard should be entitled to an

opportunity to amend the pleading after the court has

made its decision. Allowing amendment after pleadings

dismissals had long been our practice even before

Twombly and Iqbal. See, e.g., Barry Aviation Inc. v. Land O’

Lakes Municipal Airport Comm’n, 377 F. 3d 682, 687 (7th

Cir. 2004) (quoting 5A Charles Allen Wright & Arthur R.

Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).

Whether one favors broader or narrower readings of

Twombly and Iqbal, no one denies that the cases are being

interpreted as having caused an upheaval in long-settled

law. Attorneys and parties trying to draft complaints

2

(...continued)

pleading case of Dioguardi v. Durning, 139 F.2d 774 (2d Cir.

1944)).

36 No. 09-3561

and other pleadings will be left wondering about many

important questions and contradictions that the Court

has not yet addressed. Rule 1 instructs us to construe

the Federal Rules of Civil Procedure to secure the just,

speedy, and inexpensive determination of cases. The

Supreme Court has often reminded us that pleading

rules should be applied to facilitate a proper decision

on the merits rather than to impose a series of traps in

which one mis-step can be decisive. E.g., Swierkiewicz,

534 U.S. at 514 (“The liberal notice pleading of Rule 8(a)

is the starting point of a simplified pleading system,

which was adopted to focus litigation on the merits of

a claim.”), quoted in Christensen v. County of Boone, 483

F.3d 454, 458-59 (7th Cir. 2007), and in Brooks, 578 F.3d at

580. We should exercise caution to avoid punishing

parties for imperfect predictions as to how the subjec-

tive and inconsistent Iqbal standard might be applied

in their case.

Some statistics show that generosity with regard to

leave to amend appears to have increased under the

new pleading regime, even as the total percentage of

dismissal motions granted has risen. See Hatamyar, 59

Am. U. L. Rev. at 600 (analyzing statistics and finding

a “noticeable increase in dismissals with leave to amend

under Twombly and Iqbal”). District judges should

continue to grant such leave when they are concerned

with the effects on plaintiffs that I have discussed above.

They should also grant leave when doing so could

prevent results in otherwise similar cases from

diverging based merely on differences in plausibility

No. 09-3561 37

determinations made by different judges according to

their individual judicial experience and common sense.

Courts must freely give leave to amend under

Rule 15(a) where interests of justice so require. Fed. R.

Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 181-82 (1962).

Under this liberal rule, we allow amendment on remand

in many procedural dismissal cases, and certainly do so

when relevant decisional law changed after the com-

plaint was filed. See, e.g., Ienco v. City of Chicago, 286 F.3d

994, 999 (7th Cir. 2002). When, as here, the changed deci-

sional law involves the standard for pleading itself,

interests of justice call for an opportunity to amend essen-

tially as a matter of course unless it is clear that the op-

portunity would be futile. In Iqbal itself, the Supreme

Court remanded to the Second Circuit for a determina-

tion whether to further remand — so that plaintiffs could

seek leave to amend. 129 S. Ct. at 1954; see also Iqbal v.

Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009) (remanding to

district court for determination regarding leave to

amend). We have continued to permit such amendment

after Twombly and Iqbal. See, e.g., Bausch v. Stryker Corp.,

630 F.3d 546, 562 (7th Cir. 2010). We should do so here.

But where that approach is not enough to resolve

the case, I believe we must take care not to expand

Iqbal too aggressively beyond its highly unusual con-

text — allegations aimed at the nation’s highest-ranking

law enforcement officials based on their response to

unprecedented terrorist attacks on the United States

homeland — to cut off potentially viable claims. Iqbal

exemplifies the old adage about hard cases. The failure

38 No. 09-3561

of the Supreme Court to address all of the law that would

conflict with broad application of the case should weigh

heavily against that broad application, at least until the

Supreme Court provides clearer guidance about how to

reconcile Iqbal with its prior cases, the Federal Rules of

Civil Procedure, and their accompanying forms.

Reading the present complaint as a whole, plaintiff

McCauley has alleged the particulars of a plausible

Monell claim. As the majority points out, McCauley has

alleged the elements of such a claim using the relevant

legal language. While some of these statements are

conclusory in nature, they serve to notify defendants

and the court of the type of claim being brought. There

can be no doubt that the complaint provides suf-

ficient notice of the circumstances that gave rise to the

claims. McCauley made factual allegations that Chicago

police failed to arrest Martinez despite knowledge of

his harassment and violations, ¶ 25, and that this

failure resulted from a custom of untimeliness and indif-

ference with regard to the seriousness of domestic

violence, ¶ 125(c) and (j). McCauley alleges “deliberate

indifference” generally, see ¶ 126, but elsewhere de-

scribes numerous specific failures to act that are factu-

ally consistent with such an intent. See, e.g., ¶ 51. It

is difficult to imagine what more McCauley might

allege on the crucial question of intent without reciting

a list of specific states of mind that Chicago police policy-

makers might have. We did not require such a recital

in Swanson and we should not do so here.

By extending Iqbal to dismiss plaintiff McCauley’s

equal protection Monell claim against the City of Chicago,

No. 09-3561 39

the majority runs afoul of Leatherman, Rule 9(b), and the

form complaints approved by the Supreme Court and

Congress as part of the Federal Rules of Civil Procedure.

Perhaps the Supreme Court majority intended Iqbal to

work such a revolution in federal civil practice, but if so,

the Court failed to grapple with the conflicts and did not

express any direct rejection of these other governing

sources of law. Under these circumstances, therefore,

I would reverse the dismissal of plaintiff’s equal protec-

tion claim against the City of Chicago and give him

an opportunity to pursue discovery. Even if I agreed

that the current version of the complaint failed to state

a claim, I would remand with instructions to give

plaintiff an opportunity to file an amended complaint

to try to comply with the new and uncertain standards

of Iqbal.

10-20-11