District Council 47 v. Bradley

ALDISERT, Chief Judge,

dissenting.

In the grand scheme of things it makes no difference whether the majority’s conclusion or mine prevails in this case. Under either formulation, District Council 47, American Federation of State, County and Municipal Employees AFL-CIO and the two class representatives would have their day in court at some time.

*317 The majority, however, excuse the atrocious pleadings drafted by District Council 47’s lawyers in this important case. I would not. This is not a pro se matter; plaintiffs here were represented by experienced lawyers, a Philadelphia-based firm and the prestigious Washington, D.C.based Lawyers’ Committee for Civil Rights Under Law. The majority also excuse the failure of plaintiffs’ counsel to make any effort to amend the complaint. I would not. I would require plaintiffs’ counsel (at their expense and not that of their clients) to file a new complaint naming the proper defendants and explaining what particular constitutional deprivations have been suffered by the plaintiffs and how the named defendants are responsible. I see no reason to torture and twist controlling case law to accommodate plaintiffs’ counsel. I would not reward slipshod lawyering by making Judge Bechtle the patsy for counsel’s derelictions and by branding the judge’s action as reversible error. Because my disagreement with the majority is fundamental, I set forth my views at length.

I.

A long line of cases in this court and circuit has established that civil rights deprivations must be pleaded with more specificity than other civil complaints. The longstanding rule is to impose a higher standard on civil rights complaints and to dismiss them, as Judge Maris has said, if they do not “set forth with factual specificity the conduct of defendants alleged to have harmed the plaintiff.” Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir.1985); see also Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 67-68 (3d Cir.1986); Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846 , 91 S.Ct. 93 , 27 L.Ed.2d 84 (1970). The value of requiring specific facts in civil rights complaints is increasingly well recognized. A recent commentator noted that:

The leader in this movement has been the Third Circuit, which is forthright about its motivation: “ ‘In recent years there has been an increasingly large volume of cases brought under the Civil Rights Act____ It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litiation____’” To achieve this objective most courts now declare that conclusory allegations are inadequate to state a civil rights claim. They require specific delineation of the facts claimed to show a violation of plaintiff’s civil rights____ 1

Under this court’s standard a complaint alleging violation of a plaintiff’s civil rights will not survive a motion to dismiss pursuant to Rule 8(a), F.R.Civ.P., if it does “not in any manner allege facts showing a nexus between acts ... [violating constitutional rights] and the named individual defendants,” United States v. City of Philadelphia, 644 F.2d 187, 205 (3d Cir.1980), or “identify[] the particular conduct of defendants that is alleged to have harmed the plaintiffs.” Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam) (citations omitted).

District -Council 47 did not satisfy the requirement of specific pleading. 2 Factual allegations set forth in its complaint did not supply the nexus between the actions of the named defendants and injuries suffered by plaintiffs. Instead, the complaint faulted “the Court of Common Pleas of Phila *318 delphia” or McCann Associates, Inc., the firm that the Court hired to prepare, administer and grade the promotional examinations. See, e.g., app. at 7, 9. In all instances in which the complaint addressed the conduct of the named defendants, allegations were non-specific, conclusory, and undifferentiated, referring to “defendants” en masse rather than as individuals. App. at 2, 12, 13, 17. Thus, District Council 47 neither alleged specific facts concerning the particular conduct of the defendants nor demonstrated a nexus between the defendants and the alleged constitutional violations. See United States v. City of Philadelphia, 644 F.2d at 205 ; Ross v. Meagan 638 F.2d at 650 .

The majority nevertheless contend that where “the complaint specifically alleges a violation of clearly identified liberty and property intereste through specific actions, a suit against the officials involved should not be dismissed merely because it fails to allege which particular defendants were personally responsible for the implementation of the alleged constitutional personnel policies.” Majority at 315. Without factual support set forth in the complaint the majority apparently concluded that the named defendants were “the officials involved” because “[responsibility for ... a promotional examination, ultimately must fall on the chief administrative and executive officers of a state government entity.” Majority at 314. This is an appellate court assumption, not a specific allegation set forth in the complaint before the district court. That the complaint alleged the named defendants to have held positions of authority in the Court, however, does not establish the requisite allegation tying the defendants to the unconstitutional activity that caused the injury.

The district court correctly noted that liability under section 1983 cannot be imposed vicariously or on the basis of respondeat superior. Rizzo v. Goode, 423 U.S. 362, 371 , 96 S.Ct. 598, 604 , 46 L.Ed.2d 561 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976); Bracey v. Grenoble, 494 F.2d 566, 571 (3d Cir.1974). This court’s most recent pronouncement is set forth in Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir.1986):

The district court dismissed the equal protection claim solely on the basis that there was insufficient evidence to identify the specific police officers responsible for detaining and confining those plaintiffs. The police log sheets admitted into evidence in response to plaintiffs’ motion to reopen the case did not indicate which officers actually dealt with the plaintiffs. Plaintiffs in section 1983 suite must identify defendants with greater specificity than plaintiffs provided here.

In Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), plaintiffs alleged civil rights abuses by the Philadelphia police. They named defendants who had not personally committed any abuses or been responsible for policies causing them. The Supreme Court held that such defendants could not be held liable under section 1983 merely because they were members of a group of which some other members were guilty of abuses. Id. at 370-71 , 96 S.Ct. at 603-04 . Similarly, the court in Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133 (4th Cir.1982), held that a county sheriff was not per se liable for violations of a plaintiff’s constitutional rights merely because the plaintiff was in a jail for which he was responsible. Without evidence of the sheriff’s participation in the events of the prisoner’s detention, “[h]e cannot be held liable vicariously under § 1983 for any conduct of his subordinates. Vinnedge v. Gibbs, 550 F.2d 926 (4th Cir.1977). Neither could he be held liable on the basis of a failure adequately to supervise or control any conduct that directly caused the specific deprivation charged.” Id. at 1142-43.

The majority rely on Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65 (3d Cir.1986), for their proposition that District Council 47’s “complaint provides sufficient specific *319 facts giving rise to the cause of action to put the proper defendants on notice of the essential elements of plaintiffs’ cause of action.” Majority at 313. Plaintiffs brought suit against the Southeastern Pennsylvania Transportation Authority (SEPTA) in Frazier and in their complaint set “forth a series of acts and practices by SEPTA which discriminate[d] against the plaintiffs on the basis of race, in violation of § 1981.” Frazier, 785 F.2d at 68 (emphasis supplied). This court held that some of their allegations were sufficient to withstand a motion to dismiss under the standard of Rotolo v. Borough of Charleroi, 532 F.2d 920, 923 (3d Cir.1976), because “[although the [complaint] does not state precisely when and where the [racially discriminatory] firings took place, SEPTA’s personnel files undoubtedly will reveal the dates of the disciplinary actions and the officials responsible____” 785 F.2d at 69 . The “officials responsible,” however, were not named defendants. SEPTA was. The officials were identified as employees. Thus, in Frazier there was no uncertainty, as is present here, whether SEPTA was a proper defendant. By contrast, District Council 47 did not file suit against the Philadelphia Court of Common Pleas, but named as defendants only certain individual officers, or representatives, or employees of the Court. In the absence of any allegations describing each defendant’s role in the Court’s allegedly unconstitutional practices, under the teachings of Rizzo v. Goode I cannot conclude that District Council 47 has sued the proper parties. District Council 47 and the majority have thus failed to distinguish this case from “the classic case which is dismissed for lack of specificity”: that which “involves an attempt to sue the chief officials of a state agency for actions which arguably violate a plaintiffs civil rights and which are taken by subordinates.” Majority at 313-14.

Absent any allegation of defendants’ particular or personal involvement or acquiescence in, or knowledge of, the use of the promotion examination, the complaint simply does not meet the standards imposed by this court. Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978) (civil rights plaintiff must allege “the conduct violating his rights ..., time ..., place ... and those responsible____”). Accordingly, I conclude that the district court did not err in dismissing the complaint under Rule 12(b)(6) for failure to state a claim.

II.

The majority seem to think that the rule of this court has been changed on the basis of an isolated passage in Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3d Cir.1985):

Thus, the crucial questions are whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer. At the same time, however, a court cannot expect a complaint to provide proof of plaintiffs’ claims, nor a proffer of all available evidence. In civil rights cases, especially class actions, much of the evidence can be developed only through discovery. While plaintiffs may be expected to know the injuries they allegedly have suffered, it is not reasonable to expect them to be familiar at the complaint stage with the full range of the defendants’ practices under challenge.

The majority interpret these four sentences to eviscerate an entire line of relevant case law. 3 The passage does appear *320 as legal prose in Frazier . Yet the language does not have the bite of precedent, because although the panel, having been assigned the case, had the power to say it, the panel lacked the authority to do so. A panel has the power to speak and interpret, but no authority to change. Accordingly, the passage is a statement that does not rise to the dignity of a “performative utterance,” that is, a court’s holding endowed with precedential vitality. 4 No panel of this court has the authority to overrule, directly or indirectly, a decision of this court, let alone a long line of established case law. Yet, if interpreted literally, these words have the capacity to do just that. If interpreted literally, they have the capacity to nullify ruling case law, firmly entrenched. Replacing the requirement of specificity demanded by a host of precedents, this language suggests that we now will accept the vaguest, most conclusory, non-specific language as sufficient to withstand a motion to dismiss a civil rights complaint. The language suggests that the process of discovery is a substitute for the pleading specificity required by our cases. Taken literally, this language wreaks a profound change in the decisions of this court.

But, to repeat, emphatically, Frazier was a panel opinion, and not that of a court in banc. And to repeat, also emphatically, no panel of this court has the authority to change ruling case law. United States v. Babich, 785 F.2d 415 , 417 n. 2 (3d Cir.1986). Our Internal Operating Procedures specifically “provide that a published opinion of the court expressed by a panel may not be overruled without the approval of a majority of the full court.” 5 Indeed, Judge Adams, the opinion writer in Frazier , has on several occasions reminded us of this limitation. 6 Thus, even if the majority are correct in suggesting that Frazier has promulgated a less rigorous standard for evaluating civil rights complaints than that *321 established by our earlier decisions, those earlier cases still control. The Frazier passage constitutes legal literature, not legal precedent. Those earlier cases still control. And they will continue to control until changed by the court in banc 7 “[T]he integrity of our jurisprudence and the discharge of our function in guiding and informing the district courts require no less.” Gluck v. United States, 771 F.2d 750, 761 (3d Cir.1985) (Garth, J., dissenting).

III.

The majority also accept District Council 47’s alternative contention — that the district court erred by not granting leave to amend the complaint before dismissal. Yet the unvarnished record discloses that plaintiffs’ counsel never requested leave to amend. The majority thus fault the district judge a second time for a transgression that can be laid exclusively upon plaintiffs’ counsel. In effect, Judge Bechtle is charged with denying relief that was never requested, in denying a motion that was never presented, and in erring on a ruling that he never made.

Although the district court did not follow in ipsis verbis the procedure suggested, but not mandated by Borelli v. City of Reading, 532 F.2d 950 , 952 n. 1 (3d Cir.1976), this did not prevent District Council 47 from amending its complaint without seeking leave of court. By the terms of Rule 15(a), F.R.Civ.P., “[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served____” Because the defendants’ motion to dismiss under Rule 12(b)(6) did not constitute a responsive pleading for purposes of Rule 15(a), it did not affect District Council 47’s right to amend. Kelly v. Delaware River Joint Commission, 187 F.2d 93, 94-95 (3d Cir;), cert. denied, 342 U.S. 812 , 72 S.Ct. 25 , 96 L.Ed. 614 (1951). Moreover, District Council 47’s opportunity to amend continued even after entry of the district court’s order dismissing the complaint. Although a plaintiff loses the right to amend the complaint when judgment is entered on a motion to dismiss, “the district court is enjoined to ‘freely’ permit amendment as a matter of discretion.” Kauffman v. Moss, 420 F.2d 1270, 1276 (3d Cir.), cert. denied, 400 U.S. 846 , 91 S.Ct. 93 , 27 L.Ed.2d 84 (1970).

But plaintiffs’ counsel did not seek to amend. Instead they chose to appeal. Consequently, the error asserted by appellants here is not that the district court denied a motion for leave to amend, e.g., Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam), or otherwise foreclosed an opportunity to amend, e.g., Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir.1985). Had District Council 47 sought to persuade this court that it had .valid reasons for standing on its complaint and seeking an immediate appeal rather than amending, the majority’s decision to vacate the order with instructions to grant leave to amend might have some justification. See Borelli v. City of Reading, 532 F.2d at 951 n. 1; 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3914 (1976). No such explanations were presented to us, however. I do not read Borelli to stand for the proposition that a district court’s *322 failure to grant, sua sponte, leave to amend a complaint before dismissing it for failure to state a claim constitutes reversible error. Nor have I been directed to any Federal Rule of Civil Procedure that mandates this.

This case is simply an example of poor lawyering — both in drafting the complaint and in failing to amend it as of right or, subsequently, to seek leave to amend. My colleagues of the panel reward such pec-cancies of counsel. They transmigrate, if not transmogrify, the fault of the lawyer to the judge, and stigmatize the judge with reversible error. This is unfair and it is wrong. I dissent and would affirm the district court’s judgment in all respects.

. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L.REV. 433, 449 (1986), quoting Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976) (quoting Valley v. Maule, 297 F.Supp. 958, 960 (D.Conn.1968)). See also, Jones v. Community Redevelopment Agency, 733 F.2d 646 , 649 (9th Cir. 1984); Albany Welfare Rights Org. Day Care Center, Inc. v. Schreck, 463 F.2d 620 , 623 (2d Cir.1972), cert. denied, 410 U.S. 944 , 93 S.Ct. 1393 , 35 L.Ed.2d 611 (1973).

. I put aside at this time and leave to the district court, as do the majority, the equally serious question of whether, even if supported by specific pleadings, the plaintiffs would have set forth a case of constitutional deprivation under 42 U.S.C. § 1983 that could survive a motion under Rule 12(b)(6) (failure to state a claim upon which relief may be granted) of Rule 56 (summary judgment) of the Federal Rules of Civil Procedure.

. See, e.g., Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir.1985); Cruz v. Donnelly, 727 F.2d 79, 80 (3d Cir.1984) (per curiam); Mokone v. Fenton, 710 F.2d 998 , 1002 n. 12 (3d Cir.1983); United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir.1980); Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981); Boykins v. Ambridge Area School District, 621 F.2d 75, 80 (3d Cir.1980); Rhodes v. Robinson, 612 F.2d 766, 773 (3d Cir.1979); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir.1978); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir.1976); Curtis v. Everette, 489 F.2d 516, 521 (3d Cir.1973), cert. denied sub nom. Smith v. Curtis, 416 U.S. 995 , 94 S.Ct. 2409 , 40 L.Ed.2d 774 (1974); Esser v. Weller, 467 F.2d 949, 950 (3d Cir.1972) (per curiam); Gray v. Creamer, 465 F.2d 179 , 182 n. 2 (3d Cir.1972); Robinson v. McCorkle, 462 F.2d 111, 112-14 (3d *320 Cir.), cert. denied, 409 U.S. 1042 , 93 S.Ct. 529 , 34 L.Ed.2d 492 (1972); Mercedes v. Barrett, 453 F.2d 391, 391-92 (3d Cir.1971) (per curiam); U.S. ex rel Birnbaum v. Dolan, 452 F.2d 1078, 1079 (3d Cir.1971); Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir.1971); Oliver v. Governor of the State of Pennsylvania, 442 F.2d 1347 , 1348 (3d Cir.), cert. denied, 404 U.S. 1002 , 92 S.Ct. 570 , 30 L.Ed.2d 555 (1971); Pusateri v. Johnston, 398 F.2d 327, 329 (3d Cir. 1968); U.S. ex rel Hoge v. Botsinger, 311 F.2d 215 , 216 (3d Cir.1962) (per curiam), cert. denied, 372 U.S. 931 , 83 S.Ct. 878 , 9 L.Ed.2d 735 (1963).

. Elsewhere, I have emphasized that statements in a published opinion must be drafted with extreme care:

Published opinions are the principal means of carrying out the decisional process and, as such, qualify as "performative utterances." Professor J.L. Austin appears to have contrived the word "performative.” When combined with the word "utterances,” the term defines an expression that is not only articulated but also operative.24 Because judicial opinions fit this description,25 we can say that a court’s public performance in reaching a conclusion is at least as important as that conclusion.

24 J. Austin, Philosophical Papers 220 (1961).

25 Here, too, lies the "operative” distinction between a court’s opinion and a law review article. Both are legal utterances; only the opinion is performative.

Aldisert, Opinion Writers and Law Review Writers: A Community and Continuity of Approach, 16 Duquesne L.Rev. 139, 149 (1977-78).

. Internal Operating Procedures of the United States Court of Appeals for the Third Circuit (IOP) provide in relevant part:

B. Policy of the Court.

In order that a panel’s decisions may reflect input from the entire court on the law in this circuit, these procedures are designed:

2. To insure decisional stability of the court by providing a means for the panel system to operate efficiently and at the same time provide that a published opinion of the court expressed by a panel may not be overruled without the approval of a majority of the full court.

IOP, Introduction at iii.

C. Policy of Avoiding Intra-Circuit Conflict of Precedent.

It is the tradition of this court that reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court in banc consideration is required to overrule a published opinion of this court.

IOP, Chapter 8c at 25.

. Government of Virgin Islands v. Martinez, 780 F.2d 302 , 310 n. 10 (3d Cir.1985); Wolk v. Saks Fifth Avenue Inc., 728 F.2d 221 , 224 n. 3 (3d Cir.1984); Matter of Roloff, 598 F.2d 783, 786 (3d Cir.1979).

. This principle has been well recognized in the decisions of this court, e.g., United Food and Commercial Workers Union v. N.L.R.B., 788 F.2d 178 , 182-83 n. 7 (3d Cir.1986); United States v. Accetturo, 783 F.2d 382, 395 (3d Cir.1986) (Sloviter, J., dissenting); Goodman v. Lukens Steel Co., 777 F.2d 113, 131 (3d Cir.1985) (in banc) (Garth, J., dissenting); Gluck v. United States, 771 F.2d 750, 761 (3d Cir.1985) (Garth, J., dissenting); McLaughlin v. Arco-Polymers, Inc., 721 F.2d 426 , 430 n. 5 (3d Cir.1983); American Future Systems v. Pennsylvania State University, 688 F.2d 907 , 914 (3d Cir.), cert. dismissed, 459 U.S. 1093 , 103 S.Ct. 583 , 74 L.Ed.2d 941 (1982); Hood v. New Jersey Department of Civil Service, 680 F.2d 955, 959 (3d Cir.1982) (Sloviter, J., dissenting); Williams v. Red Bank Board of Education, 662 F.2d 1008, 1020 (3d Cir.1981); O. Hommell v. Ferro Corporation, 659 F.2d 340, 354 (3d Cir.1981), cert. denied, 455 U.S. 1017 , 102 S.Ct. 1711 , 72 L.Ed.2d 134 (1982); Hamilton v. Roth, 624 F.2d 1204, 1209 (3d Cir.1980); United States v. Montoya, 612 F.2d 792, 793 (3d Cir.1980); Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 , 1223 n. 3 (3d Cir.1978) (in banc); Chalfant v. Wilmington Institute, 574 F.2d 739 , 753 n. 7 (3d Cir.1978) (in banc) (Garth, J., dissenting).