# Charlene Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit

> Court of Appeals for the Fifth Circuit · February 28, 1992 · 954 F.2d 1054

URL: https://www.frixlaw.com/law-library/cases/9482532

## Case

- **Full name:** Charlene LEATHERMAN, Et Al., Plaintiffs-Appellants, v. TARRANT COUNTY NARCOTICS INTELLIGENCE AND COORDINATION UNIT, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 28, 1992
- **Citations:** 954 F.2d 1054; 22 Fed. R. Serv. 3d 545; 1992 U.S. App. LEXIS 2715; 1992 WL 23625
- **Precedential status:** Published
- **Opinion:** Concurrence by Goldberg
- **Judges:** Goldberg, Smith, Duhé
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed by Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9482532

## How later opinions describe it (automated extraction)

- applying Palmer but complaining that “[t]he Palmer court did not explain why the heightened pleading requirement should be extended to defendant municipalities, con *1400 sidering that municipalities cannot claim the immunity defense”

## Opinion text

GOLDBERG, Circuit Judge,
concurring specially.
Plaintiffs make no bones about it. Nowhere do they contend that their complaint satisfies the heightened pleading requirement. Instead, they urge this panel to abandon the requirement in favor of the traditional notice pleading standard set forth in Conley v. Gibson, 355 U.S. 41, 47 , 78 S.Ct. 99, 102-03 , 2 L.Ed.2d 80 (1957). I write further to articulate and comment upon their position.
These Dogs Want Their Day
Plaintiffs argue that the heightened pleading requirement finds no support in the Federal Rules of Civil Procedure or in
*1059 Supreme Court precedent. 1 They direct our attention to a plethora of articles and essays by persuasive commentators who champion this view. See, e.g., Schwartz and Kirklin, Section 1983 Litigation: Claims, Defenses and Fees, Vol. I, sec. 1.6, at p. 20 (1991) (“[t]here are pragmatic and theoretical difficulties with the heightened pleading requirement”); Blaze, Presumed Frivolous: Application of Stringent Pleading Requirements in Civil Rights Litigation, 31 Wm. & Mary L.Rev. 935, 949 (1990) (arguing that the creation of the heightened pleading requirement has no “direct legal support”); Tobias, Public Law Litigation and the Federal Rules of Civil Procedure, 74 Cornell L.Rev. 270, 299 (1989) (“[fjederal courts may lack the requisite authority to demand more stringent pleading” in civil rights cases); Kinports, Qualified Immunity in Section 1983 Cases: The Unanswered Questions, 23 Ga. L.Rev. 597, 657 n. 235 (1989) (“[i]t is not obvious that the courts have authority to impose [the heightened pleading] requirement”); Saalman, Rule 11 in the Constitutional Case, 63 Notre Dame L.Rev. 788, 808-09 (1988) (“neither the Federal Rules nor the holdings of the Supreme Court interpreting those Rules provide for such a disparity of treatment” between section 1983 cases and all other lawsuits); Win-gate, A Special Pleading Rule for Civil Rights Complaints: A Step Forward or a Step Back?, 49 Mo.L.Rev. 677, 683 (1984) (arguing that there is no “direct authority for the [heightened pleading] rule”); Roberts, Fact Pleading, Notice Pleading, and
Standing, 65 Cornell L.Rev. 390, 418 n. 175 (1980) (asserting that “[t]he Supreme Court has never approved such an exception to federal notice pleading”).
Plaintiffs also observe that some circuits have declined to embrace the heightened pleading requirement. The Ninth Circuit, for example, has held that the heightened pleading requirement applies neither in the defendant-official context, Bergquist v. County of Cochise, 806 F.2d 1364, 1367 (9th Cir.1986), nor in the municipal liability arena. Karim-Panahi v, Los Angeles Police Dept., 839 F.2d 621 , 624 (9th Cir.1988). That court has stated squarely that our decision in Elliott v. Perez “is not the law in this circuit,” Bergquist, 806 F.2d at 1367 , and that “a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more than a bare allegation that the individual officer’s conduct conformed to official policy, custom, or practice.’ ” Karim-Panahi, 839 F.2d at 624 (quoting Shah v. County of Los Ange-les, 797 F.2d 743, 747 (9th Cir.1986)). In Branch v. Tunnell, however, a later panel of the Ninth Circuit “adopt[ed] a heightened pleading standard in cases in which subjective intent is an element of a constitutional tort action.” 937 F.2d 1382 , 1386 (9th Cir.1991). 2
The Seventh Circuit has expressed skepticism of the heightened pleading requirement as well. Echoing the concerns voiced by our-Judge Higginbotham in his specially *1060 concurring opinion in Elliott v. Perez, 751 F.2d at 1482-83, the Seventh Circuit “deprecate[d] the expression ‘heightened pleading requirement’ ” because, in the court’s view, it appears to conflict with rules 8, 9(b), and 56 of the Federal Rules of Civil Procedure. Judge Easterbrook, writing for the court, explained:
It is better, we think, to recognize that official immunity is an affirmative defense, which need be asserted only after a plaintiff gets past the (slight) hurdles established by Rules 8 and 9(b). A possibility that the defendants will claim immunity does not require the plaintiff to anticipate and plead around that defense. Gomez v. Toledo, 446 U.S. 635 , 100 S.Ct. 1920 , 64 L.Ed.2d 572 (1980). Defendants assert immunity by pleading it in the answer and moving for summary judgment [under Rule 56].
Elliott v. Thomas, 937 F.2d 338, 345 (7th Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 973 , 117 L.Ed.2d 138 (1992).
Plaintiffs also contend that even if the heightened pleading requirement makes sense in the context of cases like Elliott v. Perez, which involve the likely defense of immunity, the extension of the heightened pleading requirement to complaints against municipalities, as in this case, is unwarranted. The rationale underlying the heightened pleading requirement — providing defendant-officials with immunity from defending a lawsuit — carries no force in the municipality context because defendant-municipalities, unlike defendant-officials, cannot claim an immunity defense. Owen v. City of Independence, Mo., 445 U.S. 622, 650 , 100 S.Ct. 1398, 1415 , 63 L.Ed.2d 673 (1980). To the extent that the heightened pleading requirement is on tenuous soil when immunity is available, Elliott v. Perez, 751 F.2d at 1483 (Higginbotham, J., concurring), plaintiffs contend that even less reason exists to fashion an exception to the notice pleading requirement when the defendant enjoys no immunity at all. Municipalities, plaintiffs argue, should not be afforded the benefit of a heightened pleading requirement; like any other defendant in any other case, municipalities should defend an action if the complaint satisfies the traditional, more lenient, notice pleading requirements set forth in Conley v. Gibson.
There is something to be said for this argument. The rationale given by the Rodriguez court for extending the heightened pleading requirement into the municipal liability arena — the expense of litigation and Rule ll’s demand for reasonable inquiry into the facts before bringing an action — is not unique to the section 1983 domain. After all, every lawsuit, not just section 1983 cases, represents a potentially expensive proposition for the defendant, and Rule 11 governs every civil case, no matter what the subject matter of the suit. By adopting notice pleading and not fact pleading, Congress has struck the balance in favor of plaintiffs: “[NJotice pleading concepts rest on acceptance of the idea that one may sue now and discover later....” Elliott v. Perez, 751 F.2d at 1482-83 (Higginbotham, J., concurring). Unless this court — or Congress, rather — intends to abandon notice pleading altogether, it is difficult to justify singling out section 1983 municipality cases over all other cases for application of the heightened pleading requirement. This is especially true in light of the challenges encountered when attempting to establish municipal liability. Plaintiffs must affirmatively prove a policy of inadequate training, yet the heightened pleading requirement forecloses any discovery which might uncover the evidence supporting their general allegations. Of course, we might expect that the municipality would have exclusive access to the information necessary to prove a policy, such as statistics, internal policy manuals, confidential memoranda and the like. As one source observes, the heightened pleading requirement “places an unrealistic burden on civil rights claimants who might have legitimate claims against municipalities, yet are foreclosed by the specific fact-pleading rule from obtaining the necessary information from the municipality through discovery.” Schwartz and Kirklin, supra, Vol. I, sec. 7.12, at p. 393.
Let Sleeping Dogs Lie
The heightened pleading requirement has its proponents and its critics. Its applica *1061 tion to section 1983 suits has generated great debate, resulting in what appears to be a circuit split on the issue. Although I have taken the time to lay out the competing arguments and am impressed by the wealth of authority plaintiffs cite in support of their position, I agree that we, as a panel of this court, must politely decline their invitation to reexamine the wisdom of this circuit’s heightened pleading requirement. Until such a time as the en banc court sees fit to reconsider Elliott or, more specifically, Palmer, and in the absence of an intervening Supreme Court decision undermining our settled precedent, 3 I find myself constrained to obey the command of the heightened pleading requirement. 4
. At least one member of the Supreme Court, Justice Kennedy, has expressed approval of the heightened pleading requirement in the immunity context, though he believes that the plaintiff needs to make specific factual allegations only after the defendant has raised the qualified immunity defense.
The heightened pleading standard is a departure from the usual pleading requirements of Federal Rules of Civil Procedure 8 and 9(b), and departs also from the normal standard for summary judgment under Rule 56. But avoidance of disruptive discovery is one of the very purposes for the official immunity doctrine, and it is no answer to say that plaintiff has not yet had the opportunity to engage in discovery. The substantive defense of immunity controls.
Upon the assertion of a qualified immunity defense the plaintiff must put forward specific nonconclusory factual allegations ... or face dismissal.
Siegert v. Gilley, - U.S. -, 111 S.Ct. 1789, 1795 , 114 L.Ed.2d 277 (1991) (Kennedy, J., concurring).
. The Branch court did not endeavor to reconcile its holding with the earlier Ninth Circuit decision in Bergquist . Indeed, the Branch court did not cite Bergquist . It relied primarily on the District of Columbia Circuit’s decision in Siegert v. Gilley, 895 F.2d 797, 802 (D.C.Cir.1990), affirmed on other grounds, — U.S. —, 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991), and Justice Kennedy’s concurring opinion affirming the District of Columbia Circuit’s decision. 111 S.Ct. at 1795 (Kennedy, J., concurring).
. It appeared that the Supreme Court would resolve the dispute when it granted certiorari in Siegert v. Gilley, — U.S. —, 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991), but the Court did not reach the question. See id. 111 S.Ct. at 1795 (Kennedy, J., concurring) (indicating that he would have preferred that the Court resolve the issue).
. See Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991) ("In this circuit one panel may not overrule the decision, right or wrong, of a prior panel, in the absence of en banc consideration or superseding decision of the Supreme Court.”) (citations and quotations omitted).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482532. Public record. Not legal advice.