Opposition Brief — Hunter v. Hydrick (No. 07-958)

#0 FILED

(D APR 11 2008

OFFICE OF THE CLERK

No. 07-958 SUPREME COUPT, U.S.

Fun the

Supreme Court of the Anited States

MELVIN E. HUNTER, ET AL.,

PETITIONERS,

JAMES ALLEN HYDRICK, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN

OPPOSITION

J. SCOTT BALLENGER

LATHAM & WATKINS LLP

555 11TH STREET NW

SUITE 1000

WASHINGTON, DC 20004

(202) 637-2200

JOEL EF. KRISCHER

Counsel of Record

JARED A. DELGIN

D. INDER COMAR

JASMINE R. OBERMAN

LATHAM & WATKINS LLP

633 WEST 5TH STREET

SUITE 4000

Los ANGELES, CA 90071

(213) 485-1234

QUESTION PRESENTED

Whether the complaint in this case alleges sufficient

factual detail to survive a motion to dismiss, under

ordinary Federal Rule of Civil Procedure &(a) notice

pleading standards.

ii

TABLE OF CONTENTS

Page

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RM I BAT BIOL BLISS vesiccovsesseasssessoscessscsesosesassnons ili

la asics coinchceinidennnbaicebnishesoinsonbuncsaniaca 1

STATEMENT OF THE CASB.............0..secccscscsssenscnsscseeeed

REASONS FOR DENYING THE WRIT..........00000..... 11

I. THE NINTH CIRCUIT CORRECTLY

HELD THAT THE COMPLAINT STATES

A CLAIM AGAINST PETITIONER ................ 13

Il. THE CIRCUITS UNIFORMLY APPLY

THE SAME STANDARD TO EVALUATE

CIVIL RIGHTS COMPLAINT...........cccccccscsssesees 16

A. This Court’s Opinions Establish the

Applicable Pleading Standard ...................:08 17

B. All the Circuits Now Apply this

icin ch sansncsacesnninoneaii 21

C. None of Petitioners’ Cited Cases

Demonstrate that Other Circuits

i cna dnakiiniainsaredennnictinn 26

cabs cpseiictsiicansesnavendiainenorsnaeincciscncAe

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Abbott v. Latshaw,

164 F.3d 141 (8d Cir. 1998), cert. denzed, 527

Bee I istes nica aonischncsdbecin badcceatidteesiniiimcnanseaiinn 22

Beli Atlantic Corp. v. Twomdly,

IE Th Ee Be vik inter rcevnecsnicsinsesnnncnd 2, 12, 20, 30

Boston & Maine Corp. v. Town of Hampton,

UE Fee CGE Ca. BI ai esiicinicctscitcancensstaceccis 17

Branch v. Tunnell,

ere eek me Ch CE. EDIT) aig ise nce sctiaciccosesnnvascaneens 17

Cali v. Knox County,

470 F.3d 422 (1st Cir. 2006).................ccc00- snake 21

Crawford-E!l v. Britton,

A sc ashinealabee 19

Currier v. Doran,

242 F.3d 905 (10th Cir.), cert. denied, 534

| RE SER IVER Rae Reba ot eet ean Oe re a 24

Dartmouth Review v. Dartmouth College,

Fe AE Oe, FO iisisiacines cepsacincssisiccpssiartnvsis 17

DeShaney v. Winnebago County Department of

Social Services,

Ee ee I iaesicicslbeepshcitnedateccsaidicsndedecasardunssaatandans 31

lV

TABLE OF AUTHORITIES—Continued

Doe v. Cassel,

, 403 F.3d 986 (8th Cir. 2005)... cease

Edgington v. Missouri Department of

Corrections,

G2 FB TTT (Sth Cir. 19GB) .2...cccccsnscasacsesses

Educadores Puertorriquenos en Accion v.

Hernandez,

367 F.3d 61 (1st Cir. 2004)... eee

Empress LLC v. City & County of San

Francisco,

419 F.3d 1052 (9th Cir. 2005) «0... eee

Epps v. Watson,

492 F.3d 1240 (11th Cir. 2007) ....0

Erickson v. Pardus,

BIE Fe Be GO sates issicninnsnnsisnscxcsaracen

Estate of Sims v. County of Bureau,

506 F.3d 509 (7th Cir. 2007) ..........csscssoseees

Evancho v. Fisher,

423 F.3d 347 (8d Cir. 2005)... ceeseseeee

Galbraith v. County of Santa Clara,

307 F.3d 1119 (9th Cir. 2002) .....

Page(s)

sapiabinibent 24

V

TABLE OF AUTHORITIES—Continued

Page(s)

Gomez v. Toledo,

I AP I icine ssatsssanociiccneacdensnandasinsnnaail 2,17, 18

Harlow v. Fitzgerald,

| ___ 5 ENee NEE ED ITE eo 18

Higgs v. Carver,

200 F BG 437 (7th Cir. 2002) ...........ccsssssscssenceeseee 23, 27

Hill v. McDonough,

I cis onsssisies sactnscinaoenindnesnenninemieneaaiinds 20

Iqbal v. Hasty,

490 F.3d 143 (2d Cir. 2007)..............sccssccesseees 22, 26, 27

Johnson v. Johnson,

380 F.3d 503 (Sth Cir. 2004) ...........ccccscssescssescesecs 23, 28

Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit,

SR WP II RIED ininsscencnsssnnanennsensccosenesncension 18, 19, 22

Moya v. Schollenbarger,

465 F.3d 444 (10th Cir. 2006) 0.0.0... ecco 31, 32

Nance v. Vieregge,

147 F.3d 589 (7th Cir. ), cert. denied, 525

eisai idacinpelacigtai 24, 27

vl

TABLE OF AUTHORITIES—Continued

Page(s)

Oliver v. Scott,

BE Ne CPU IE, SPIED ccccncastctccsonnnnccssenccsesinnasacnee 28

Redondo-Borges v. United States HUD,

Br Oe I A, BI cic cncntnccccccnscnsosnessccocssccaccccess 30

Saucier v. Katz,

es cieschentnmndedineeitines 12

Schultea v. Wood,

ee 0 dD) 23

Scott v. Harris,

I I ain tisns coscexiconancsccewscnsssivintedenneesene 12

Smith v. City of Salem,

318 F.3d 566 (Gth Cir. 2004) ........c.cccsceccsccsccccscssereeses 23

Swierkiewicz v. Sorema N.A.,

Nee can sndnaknianentanisiisodnie 20, 21

Thomas v. Independence Township,

GED BG Ber CBG Cir, ZO0G)....20ccccscccscccecsscceccocscccssesasee 22

Trulock v. Freeh,

275 F.3d 391 (4th Cir. 2001), cert. denied,

Neen acananntmmmaneansasnaees 23

Warren v. District of Columbia,

Bee er sn CID, BIG) ov vveccscceseccccsesscnassvssenesenese 25

Vii

TABLE OF AUTHORITIES—Continued

Page(s)

Yeng Jing Gan v. City of New York,

DOG PDE BES Gad Cir, BIG) oaiscsicnnsnnssaseccnssssccsncacsessoese 31

STATUTES AND RULES

Be EF BR icin ticaiaeinsnsenbieseerantsinticctlilstanithanesesiinknl 2

California Welfare & Institutions Code §§ 6600

California Welfare & Institutions Code

6 RENEE RSE a Seer si COE RC 4

California Welfare & Institutions Code § 6601(a).......... 4

California Welfare & Institutions Code § 6601(b).......... 4

California Welfare & Institutions Code § 6601(h).......... 4

California Welfare & Institutions Code § 6601(i)........... 4

California Welfare & Institutions Code § 6604............... 4

California Welfare & Institutions Code § 6605............... 3

California Welfare & Institutions Code § 6605(a)......4, 5

California Welfare & Institutions Code § 6605(q).......... 4

California Welfare & Institutions Code § 6605(e).......... 5

Federal Rule of Civil Procedure 8(a)(2)......... ce eee eee 8

INTRODUCTION

California’s Sexually Violent Predator (“SVP”) Act

creates a system of ongoing civil commitment for

certain persons who have completed their prison

sentences and would otherwise be released.

Respondents were each civilly committed as SVPs at

Atascadero State Hospital following completion of

their prison terms. ~The complaint in this case alleges

that petitioners, who are administrators at Atascadero,

intentionally implemented policies that in many cases

resulted in conditions far worse than those that are

constitutionally mandated for prisons, and that are

unrelated to the SVP Act’s express goals of effective

treatment. The complaint seeks declaratory and

injunctive relief, and damages from petitioners in their

individual capacities.

Although discovery was_ nearly complete,

petitioners chose to file a motion to dismiss, based

solely on the pleadings, on the ground of qualified

immunity. In that posture, in which the complaint’s

allegations must be accepted as true, the Ninth Circuit

held only that the complaint states a claim, and

affirmed the district court’s order denying qualified

immunity as to several of the claims. The Ninth Circuit

expressed no view on the merits, or on whether

petitioners would have a basis to renew their claim of

qualified immunity at summary judgment based on a

fuller record.

Petitioners now ask this Court to review the

pleading standards for civil rights actions against

individual defendants, and claim a phantom circuit

split. But any historical conflicts have already been

resolved by this Court. As early as 1980, this Court

held that it “has never indicated that qualified

2

immunity is relevant to the existence of the plaintiffs

cause of action; instead we have described it as a

defense available to the official in question. . . . Since

qualified immunity is a defense, the burden of pleading

it rests with the defendant.” Gomez v. Toledo, 446 U.S.

635, 640 (1980). Since then, this Court has issued a

steady stream of opinions clarifying that Federal Rule

of Civil Procedure 8 applies to civil rights cases just as

to other cases, and that lower courts should not apply

any different pleading standards absent a rule or

statute so providing. Every circuit has now recognized

that the standard for pleading a claim under 42 U.S.C.

§ 1983 is no different than for pleading other civil

causes of action. This Court’s most recent explication

of that standard, in Bell Atlantic Corp. v. Twombly,

explained that a plaintiff need only plead sufficient

facts that, if true, could provide “plausible grounds to

infer” that a violation of law occurred, or “enough fact

to raise a reasonable expectation that discovery will

reveal evidence . . . even if it strikes a savvy judge that

actual proof of those facts is implausible, and ‘that a

recovery is very remote and unlikely.” 127 S. Ct. 1955,

1965 (2007) (citation omitted).

The Ninth Circuit’s holding in this case is entirely

consistent with those principles. Respondents have

alleged that formal policies at Atascadero, physical

attributes of the facility, and widespread common

practices by facility staff all clearly violate their

constitutional rights. It is considerably more than

“plausible” to infer that petitioners, who are senior

administrators at the hospital, participated in

formulating these policies and were aware of the basic

conditions under which their own program was run.

And the “conflict” petitioners point to reflects only the

3

unsurprising reality that the application of well-settled

pleading standards to widely varying facts necessarily

results in a range of outcomes. Ultimately, petitioners

are complaining only about the Ninth Circuit’s fact-

bound evaluation of this particular complaint, which

obviously is not appropriate for this Court’s review.

Petitioners’ assertion that other circuits would have

applied the law to these facts differently is both

speculative and incorrect.

In the end, petitioners simply disagree that the

facts are actually as alleged, and they disagree with the

Ninth Circuit’s reading of the complaint. But having

expressly chosen not to file a motion for summary

judgment, and instead to try to dismiss this case on the

pleadings, petitioners may not now try to reframe their

disagreement with the allegations as a dispute over the

law. The petition for certiorari should be denied.

STATEMENT OF THE CASE

California’s Sexually Violent Predator Act

California’ss SVP Act, California Welfare &

Institutions Code §§ 6600 et seg., permits California to

place individuals convicted of a certain class of sexual

offenses—and who have fully served their prison

sentences—in civil commitments following’ the

expiration of their sentence. Once committed, these

“sexually violent predators,” or “SVPs,” can only be

released after a court finds that they no longer qualify

as sexually violent predators.! See Cal. Welf. & Inst.

Code § 6605.

1 The SVP Act defines a “sexually violent predator” as a

“person who has been convicted of a sexually violent offense

against one or more victims and who has a diagnosed mental

disorder that makes the person a danger to the health and safety

4

The SVP Act transfers responsibility for SVPs

from the criminal to the civil commitment arena. If an

incarcerated individual is suspected of being an SVP,

both the Department of Corrections and the

Department of Mental Health evaluate the inmate at

least six months prior to his scheduled release. Cal.

Welf. & Inst. Code § 6601(a)-(b). If both agree that the

individual may qualify as an SVP, the county’s

designated counsel then files a petition for civil

commitment in state court. /d. § 6601(h)-(i). Once the

court approves the petition, the SVP is “committed for

an indeterminate term to the custody of the State

Department of Mental Health.” Jd. § 6604.

The statute permits civil commitment of SVPs for

the express purposes of “appropriate treatment” by

the Department of Mental Health. See Cal. Welf. &

Inst. Code § 6604. The SVP Act mandates that the

Department of Mental Health provide “programming”

that “shall afford the person with treatment” and must

“take into consideration the unique characteristics,

individual needs, and choices of persons committed

under this article, including whether or not a person

needs antipsychotic medication, whether or not a

person has physical medical conditions, and whether or

not a person chooses to participate in a specified course

of offender treatment.” Jd. § 6605(a), (d).

Atascadero State Hospital, where respondents

were initially civilly committed, established a five

phase treatment program for SVPs. The five phases of

the program correspond to a “Patient Access System,”

which provides “Access Levels” to Atascadero; a

of others in that it is likely that he or she will engage in sexually

violent criminal behavior.” Cal. Welf. & Inst. Code § 6600(a)(1).

5

higher Access Level means less supervision and access

to more services at Atascadero, such as the law library.

Pet. App. 84a-87a. Phase One of the treatment

consists of group sessions wherein each SVP must sign

a “contract” or statement prepared by Atascadero staff

acknowledging that he has a “problem” or “illness” and

needs “help” or “treatment.” Pet. App. 86a. An SVP

cannot advance from Phase One to Phase Two of the

program without signing this statement. Pet. App.

86a, 88a-89a. Phases Two through Five involve

“cognitive” treatments designed to train SVPs to

associate inappropriate or violent sexual activities with

unpleasant sensations. Pet. App. 86a.

An SVP is entitled to an annual reexamination to

determine whether he should remain in civil

commitment. Cal. Welf. & Inst. Code § 6605(a). If it is

determined that the SVP continues to be a danger to

the health or safety of the community, the civil

commitment continues for two more years. d.

§ 6605(e). Such extensions of civil commitment can

continue indefinitely, or, if the SVP completes Phase

Five of the program, he may be released under a

Conditional Release Program. Pet. App. 86a-87a.

According to the complaint, no SVP had ever been

permitted into the Conditional Release Program.? Id.

The Complaint Against Petitioners

Respondents represent a certified class of

approximately 600 civilly-committed SVPs who were

confined at Atascadero pursuant to the SVP Act. Pet.

App. 3a. Respondents’ Second Amended Complaint,

2 The Ninth Circuit noted that in the years since respondents

filed their complaint, just three (out of over seven hundred) SVPs

have been released under the SVP Act. Pet. App. 6a n.3.

6

which is at issue here, includes as defendants the four

petitioners: Melvin E. Hunter, Executive Director of

Atascadero; Jon DeMorales, former Executive Director

of Atascadero; Craig Nelson, Clinical Administrator of

Atascadero; and Grenda Ernst, Director of Program

VII at Atascadero.

The complaint alleges that petitioners violated

respondents’ constitutional rights in two ways: (1)

petitioners established policies that define and

implement Atascadero’s treatment program under the

SVP Act, and that violate respondents’ constitutional

rights; and (2) petitioners permitted Atascadero

employees to engage in a pattern and practice of

egregious conduct against SVPs, while petitioners had

knowledge of this ongoing conduct yet willfully

ignored, or in some cases actively encouraged, the

behavior. The complaint ineludes, inter alia, the

following allegations:

e Petitioners implemented a practice of force-

medicating respondents in non-emergency situations,

and without following proper protective procedures,

Pet. App. 87a-88a.

e Petitioners imposed a policy of forcibly

restraining respondents and putting them in excessive

restraints for non-threatening, non-disruptive conduct.

Pet. App. 90a-91a.

e Petitioners imposed a classic Catch-22 designed

to ensure that SVPs are never released: SVPs are

required to sign a statement admitting they are ill and

need confinement and treatment. This statement is

used against SVPs at probable cause and commitment

hearings as a sign that the SVP needs further ongoing

treatment. If the SVP declines to sign the statement,

7

he cannot progress through the Phases, which is a

necessary condition for release. Pet. App. 86a, 88a—89a.

e Petitioners established a policy of putting

respondents in four-point restraints and subjecting

them to degrading strip searches. Pet. App. 92a.

e Although respondents are civilly, not criminally,

confined, petitioners housed them in rooms that lack

running water, electrical outlets, tables or chairs, and

cannot be locked from the inside. Pet. App. 91a.

e Petitioners established a practice of reducing

respondents’ access levels and privileges as a form of

punishment for refusing to participate in treatment and

for filing lawsuits challenging conditions of their

confinement. Pet. App. 87a.

e Food served to SVPs at Atascadero is routinely

contaminated with spit, urine, rocks, sticks, and hair.

Petitioners knew of this ongoing practice, and

permitted and encouraged it. Pet. App. 90a.

e Petitioners imposed living conditions on

respondents which are, in many respects, worse than

prison conditions. These conditions include repeatedly

exposing respondents to feces, urine, vomit, spit, and

blood in all areas of Atascadero, including the

courtyards, bathrooms, hallways, and dining rooms.

Pet. App. 89a.

e Respondents were repeatedly subjected to

physical abuse, sexual abuse, and verbal harassment at

Atascadero by both staff and by patients. Petitioners

had personal knowledge of this conduct, and permitted

and encouraged this abuse. Pet. App. 90a.

In sum, respondents allege that petitioners

established conditions at Atascadero that were

“punitive in nature,” and designed to keep respondents

8

committed indefinitely. Pet. App. 85a-87a. They

allege that petitioners’ policies “are not compatible

with treatment purposes, [and] are not reasonably

related to a legitimate non-punitive goal.” Pet. App.

94a-95a. And they allege that petitioners knew about

the egregious abuses at Atascadero, and either

willfully ignored, or in some cases actively encouraged,

such conduct. Respondents allege that petitioners’

conduct violated the First, Fourth, Eighth, and

Fourteenth Amendments to the U.S. Constitution, the

Ex Post Facto and Double Jeopardy Clauses, and

provisions of the California Constitution.

To be clear, respondents are not challenging the

validity of the SVP Act, nor are they seeking to be

released. Rather, they filed this lawsuit with the goal

that they be treated in accordance with constitutional

standards for civil commitment, consistent with the

SVP Act’s requirement that they receive “appropriate

treatment,” not punishment.

Proceedings Below

After substantial discovery, petitioners filed a

motion to dismiss, based solely on the pleadings, on the

ground of qualified immunity. On August 26, 2003, the

district court denied petitioners’ motion to dismiss in a

one-line order. Pet. App. 65a.

The Ninth Circuit affirmed in part and reversed in

part. The court of appeals first noted that its “task is a

limited one.” Pet. App. 9a. Because petitioners’ motion

challenged only the complaint, the court held that

respondents are “only required to give a ‘short and

plain statement’ of their claims,” and that the

allegations “are accepted as true and should be

construed in the light most favorable to [respondents ].”

Pet. App. 8a—-9a (quoting Fed. R. Civ. P. 8(a)(2)). The

9

court also recognized that while one goal of qualified

immunity “is to protect officers against the burden of

discovery and pretrial motions,” that concern did not

apply here: the court acknowledged that “discovery

was almost complete,” and that petitioners “could have

presented this as a motion for summary judgment.”

Pet. App. 9a-10a.

The court held that respondents ultimately “will

need to show how the deliberate indifference or

affirmative actions of each Defendant caused a

constitutional violation before they can seek monetary

damages.” Pet. App. 16a. But the court found that,

“lajt this stage of pleading . . . we do not see how, prior

to discovery, they could plead the individual roles of

each state officer with any more specificity.” Id. The

court found that respondents “sufficiently alleged that

the constitutional violations they suffered were ‘set in.

motion’ by [petitioners’] policy decisions, or, at the very

least, that [petitioners] knew of these abuses and

demonstrated a deliberate indifference to the

[respondents’| plight.” Jd. The Ninth Circuit

concluded that respondents had pled enough detail to.

“state a claim against all of the named [respondents],

each of whom played an instrumental role in

policymaking and enforcement at Atascadero State

Hospital.” Pet. App. 16a—17a.

As to each claim, the court of appeals then reviewed

the specific allegations against petitioners to determine

whether in fact qualified immunity was appropriate.

The court reversed the denial of qualified immunity on

several of the claims, including those brought under the

Double Jeopardy and Ex Post Facto clauses,

procedural due process, and the Eighth Amendment.

Pet App. 29a-32a, 46a. The court also reversed the

10

denial of qualified immunity regarding respondents’

purported First Amendment right to refuse treatment,

and based on the respondents’ allegations of procedural

due process violations under the Fourteenth

Amendment, holding that the respondents had “not

adequately pled the loss of clearly established due

process rights.” Pet. App. 26a, 32a-33a.

With regard to the respondents’ other claims,

however, the Ninth Circuit reviewed and evaluated the

specific allegations in the complaint and agreed with

the district court that the respondents had pled

sufficiently concrete allegations to state a claim.

Among other things, the Ninth Circuit found that

respondents stated a Fourth Amendment violation

based on allegations that “Defendants’ policies and

practices” subjected respondents to “public strip

searches, retaliatory searches of their possessions, and

arbitrary seizures of their personal belongings upon

arrival at Atascadero.” Pet. App. 27a. The court also

found that respondents alleged that they are “shackled

during transport to Atascadero and during visits with

family and friends,” they are physically restrained

“even when they do not pose any physical risk,” and

are “force-medicated as a means of intimidation and

punishment, and for the convenience of staff.” /d.

Accepting the allegations as true, the court concluded

that respondents “may be able to state a ‘clearly

established’ violation of their Fourth Amendment

rights.” /d.

The court of appeals also found the respondents

stated constitutional violations arising from allegations

regarding the living conditions at Atascadero. The

court focused on allegations that petitioners “turned a

blind eye” to rampant egregious abuses by others at

11

Atascadero, and that petitioners forced respondents to

“live in squalid conditions that are inhumane and pose a

serious health risk.” Pet. App. 36a, 37a-38a. The court

found that the allegations would violate even “the

rights afforded prisoners.” Pet. App. 40a.

The Ninth Circuit further found that respondents

stated a First Amendment claim by alleging that that

petitioners “retaliated against them for filing lawsuits

regarding conditions at Atascadero State Hospital,”

Pet. App. 21a.

Ultimately, the court of appeals ruled that

respondents’ complaint “alleges practices that would be

unconstitutional if directed at any prisoner,” Pet. App.

48a, and therefore unquestionably stated a claim in the

context of civil commitment.

Judge Trott dissented in part. He agreed with the

majority that respendents’ allegations presented issues

that “are certainly important and require our

attention,’ but he believed that the abuses at

Atascadero could be addressed without permitting

individual damages claims. Pet. App. 49a.

REASONS FOR DENYING THE WRIT

Petitioners ask this Court to “grant review to

address and resolve the considerable variation among

the circuits regarding the specificity of pleading

necessary to state a claim in individual-capacity civil

rights lawsuits against government actors.” Pet. 9.

Any “variation among the circuits” about the

governing legal standard has already been resolved.

This Court, in a series of rulings over the last three

decades, has clarified that civil rights claims are

subject to Rule &(a)’s “short and plain statement”

pleading standard—and has squarely rejected the

12

notion (previously adopted by some courts) that § 1983

plaintiffs must plead with particularity facts

preemptively negating any qualified immunity defense.

In light of this Court’s cases, every circuit now

applies the same pleading standard for civil rights

cases that it does for other civil cases. Several circuits

expressly overruled their own prior heightened

standards in light of this Court’s recent rulings. All! the

circuits now recognize that civil rights cases are

subject neither to heightened nor relaxed pleadings

requirements. The circuits are remarkably uniform,

and it would make no sense for this Court to grant

review to resolve a disagreement years after the

circuits resolved it on their own.

The only “variation” in the cases that petitioner can

muster is variation based on facts, not any

disagreement about the governing legal standard. A

§ 1983 complaint against an individual must allege facts

that, if true, could give rise to a plausible inference of a

violation of a constitutional right that is clearly

established. See Bell Atl. Corp. v. Twombly, 1278. Ct.

1955, 1965 (2007); Scott v. Harris, 127 S. Ct. 1769, 1773-

74 (2007); Saucier v. Katz, 5383 U.S. 194, 201 (2001).

Petitioners pluck language from cases in which courts

find that various allegations do or do not create a

plausible inference of liability against particular

defendants. But such fact-bound differences based on

how courts interpret the specific allegations and

plausible inferences in particular contexts do not

present any issue that requires this Court’s resolution.

None of petitioners’ cases suggest any actual

disagreement among the circuits with respect to the

pleading standard in § 1983 claims against individual

officers, and petitioners’ own Question Presented

13

waives any reliance on a heightened pleading standard

by conceding that only Rule 8 applies.

At most, petitioners simply disagree with the Ninth

Circuit’s reading of this particular complaint. But the

Ninth Circuit’s standards for evaluating the sufficiency

of a civil rights complaint, and for evaiuating qualified

immunity, are squarely in line with every other circuit.

Petitioners chose to pursue qualified ummunity based

solely on the complaint, and the Ninth Circuit merely

held that certain allegations, if true, state a viable

claim. That conclusion was unremarkable, since the

complaint alleges a pattern of conduct so plainly

improper that it would violate even the rights of

criminally confined prisoners. And the allegations

relate to matters so widespread and central to the

nature of the program at Atascadero that it is more

than “plausible” to infer that the program’s senior

administrators were personally involved and/or aware.

At summary judgment, petitioners may be able to

demonstrate that they are entitled to qualified

immunity. But at this stage, petitioners may not

transform their disagreement with the complaint’s

factual allegations into a legal dispute warranting this

Court’s review.

I. THE NINTH CIRCUIT CORRECTLY

HELD THAT THE COMPLAINT STATES

A CLAIM AGAINST PETITIONERS

Petitioners’ entire argument is grounded on a

misleading portrayal of the Ninth Circuit’s opinion

below. The heart of their argument is that the Ninth

Circuit allowed a complaint to proceed based solely on

bare references to unstated “policies,” with an unstated

connection to petitioners. See, e.g., Pet. i (question

presented); Pet. 10. The Question Presented has no

14

bearing on this case. To the contrary, the Ninth

Circuit held that the complaint’s specific allegations of

policies and acts by petitioners stated a claim (while

correctly noting that, in this posture, the allegations

must be accepted as true). Those allegations in the

complaint are not comparable to the allegations in the

cases petitioners rely on, and would state a claim in any

circuit.

Both the complaint and the Ninth Circuit’s opinion

repeatedly focus on explicit allegations regarding the

policies implemented at Atascadero, and _ specific

allegations tying petitioners to those policies. For

example, the complaint challenges obvious structural

elements of the facilities, such as the fact that

“bedrooms do not have electrical outlets, running

water, tables or chairs, and cannot be locked from the

inside.” Pet. App. 9la. These are not allegations of

isolated rogue conduct by lower level employees. An

allegation regarding lack of water or electricity in

bedrooms is obviously a policy of the facility which it is.

manifestly reasonable at the pleading stage to attribute

to the administrators of the facility.

Similarly, the Ninth Circuit found that respondents

adequately alleged that “they are forced to live in

squalid conditions that are inhumane and pose a serious

health risk.” Pet. App. 37a-38a. Again, this is not an

allegation of a one-time incident, but rather an

allegation regarding the endemic, pervasive conditions

at Atascadero, about which it is certainly plausible to

infer at the pleading stage that petitioners knew or

should have known. (Petitioners remain free to file a

summary judgment motion if these eminently plausible

inferences from the pleadings turn out not to be

consistent with the facts as revealed in discovery).

15

Other allegations in the complaint describe

repeated patterns of egregious conduct, and specifically

allege not only a pattern of behavior, but petitioners’

knowledge of the behavior, and their decision either to

ignore, or in some cases to encourage, such behavior.

For example, the Ninth Circuit noted that respondents

alleged that “they are intentionally exposed to feces,

urine, vomit, spit, and blood in Atascadero’s

courtyards, bathrooms, hallways, dining rooms, and

gymnasium.” Pet. App. 36a. The complaint alleges not

only that such conditions are rampant, but also that

petitioners “have personal knowledge of this conduct,”

and yet “permit and encourage this and other

harassment of SVPs.” Pet. App. 90a.

The complaint also alleges a policy or practice of

“force-medicating the Plaintiffs in non-emergency

situations” with psychotropic drugs, and “public strip

searches, retaliatory searches of their possessions, and

arbitrary seizures of their personal belongings upon

arrival at Atascadero.” Pet. App. 7a, 27a. Again, the

Ninth Circuit correctly observed that the complaint

alleges that these are not isolated incidents, but rather

that they are part of established “polici:s and

procedures” at Atascadero, and that petitioners “knew

of these abuses and demonstrated a deliberate

indifference to [respondents’] plight.” Pet. App. 16a.

Respondents are entitled to all plausible inferences

from the alleged facts, and are not required to allege

with particularity at the pleadings stage the particular

conversations or acts by which each defendant

participated in the formulation of these

unconstitutional policies. That would be heightened

pleading under Rule 9(b), not notice pleading under

Rule 8.

16

These are just examples. The Ninth Circuit

recognized that the complaint alleges, in great detail, a

variety of practices and policies at Atascadero, and

alleges petitioners’ direct role in creating, or willfully

ignoring, these practices. The complaint

unquestionably alleges facts that, if true, plausibly

show that respondents would be “entitled to relief’

under Rule 8.

Ultimately, petitioners cannot genuinely argue that

the complaint lacks specificity regarding the substance

of the policies, and they cannot genuinely argue that

the complaint fails to allege that petitioners themselves

were responsible for these policies. The substance of

petitioners’ objection is that they believe the facts will

show otherwise. But, as the Ninth Circuit correctly

found, petitioners chose to force the courts to evaluate

their qualified immunity defense solely on the

pleadings, and subject to the rule that the facts alleged

in the complaint must be taken as true. Pet. App. ;

In this posture, the Ninth Circuit’s holding that the

complaint states a claim was unquestionably correct,

and consistent with established law. Indeed,

petitioners’ strategic decision to disregard the evidence

assembled during nearly-complete discovery and focus

on the pleadings is a strong indication that the facts

support respondents’ claims.

II. THE CIRCUITS UNIFORMLY APPLY

THE SAME STANDARD TO EVALUATE

CIVIL RIGHTS COMPLAINTS

In the past, some circuits applied a heightened

standard of pleading for civil rights cases involving

individual defendants. The Eighth Circuit, for

example, held that complaints against government

officials “are subject to a heightened standard of

17

pleading with sufficient specificity to put defendants on

notice of the nature of the claim.” Edgington v.

Missouri Dep’t of Corr., 52 F.3d 777, 779 (8th Cir.

1995). The Ninth Circuit required a “substantial

preliminary showing” of the defendant’s motive where

subjective intent was at issue. Branch v. Tunnell, 937

F.2d 1382, 1387 (9th Cir. 1991) (citation omitted). The

First Circuit required plaintiffs to plead “specific

facts,” and applied a “heightened requirement of

specificity” for civil rights cases. Dartmouth Review v.

Dartmouth Coll., 889 F.2d 13, 16-17 (1st Cir. 1989);

Boston & Me. Corp. v. Town of Hampton, 987 F.2d 855,

866 (Ist Cir. 1993).

However, in light of recent opinions by this Court,

each of these circuits has expressly overruled its prior

precedent. Every circuit now recognizes that Rule 8

applies, and that there is neither a heightened nor a

relaxed pleading requirement for civil rights claims

against individual officers.

A. This Court’s Opinions Establish the

Applicable Pleading Standard

Over the last three decades, this Court has clarified

the standards governing pleading a civil rights claim

against individual defendants.

In Gomez v. Toledo, 446 U.S. 635 (1980), this Court

squarely rejected any suggestion that a civil rights

plaintiff bears the burden of pleading that the officer

acted in bad faith in order to overcome qualified

immunity. This Court held that “[b]y the plain terms of

§ 1983, two—and only two—allegations are required in

order to state a cause of action under that statute.” /d.

at 639. The Court confirmed that a plaintiff need only

allege (1) “that some person has deprived him of a

federal right,” and (2) “that the person who has

18

deprived him of that right acted under color of state or

territorial law.” Jd. at 639-40. The Court explained

that, whether the claim is brought under § 1983 or

under the Constitution, the Court “has never indicated

that qualified immunity is relevant to the existence of

the plaintiffs cause of action; instead we have

described it as a defense available to the official in

question. ... Since qualified immunity is a defense, the

burden of pleading it rests with the defendant.” Jd. at

640.

Just two years later, in Harlow v. Fitzgerald, 457

U.S. 800 (1982), the Court considered the scope of

immunity for aides to the President. The Court

reiterated that “[q]ualified or ‘good faith’ immunity is

an affirmative defense that must be pleaded by a

defendant official.” Jd. at 815. The relevant question is

whether the officer’s conduct violates “clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Id. at 818.

In Leatherman v. Tarrant County Narcotics

Intelligence & Coordination Unit, this Court rejected

any “heightened pleading standard’—more stringent

than the usual pleading requirements of Rule &(a) of

the Federal Rules of Civil Procedure—(for] civil rights

eases alleging municipal liability under” § 1983. 507

U.S. 163, 164 (1993). This Court held that “it is

impossible to square the ‘heightened pleading

standard’ applied by the Fifth Circuit in this case with

the liberal system of ‘notice pleading’ set up by the

Federal Rules,” and that “Rule 8(a)(2) requires that a

complaint include only ‘a short and plain statement of

the claim showing that the pleader is entitled to

relief.” Jd. at 168. This Court noted that “the Federal

Rules do address in Rule 9(b) the question of the need

19

for greater particularity in pleading certain actions, but

do not include among the enumerated actions any

reference to complaints alleging municipal liability

under § 1983,” and applied the canon “/e/xpressio

unius est exclusio altertus.” Id. at 168.

In Crawford-El v. Britton, 523 U.S. 574 (1998), this

Court addressed whether lower courts may craft

special procedural rules in qualified immunity cases—

and in particular, whether they may require plaintiffs

to present clear and convincing evidence of improper

motive to defeat a motion for summary judgment.

Once again, this Court rejected any heightened

pleading or proof standards and focused on the

applicable rules and statutes. This Court held that

“(njeither the text of § 1983 or any other federal

statute, nor the Federal Rules of Civil Procedure,

provides any support for imposing the clear and

convincing burden of proof on plaintiffs either at the

summary judgment stage or in the trial itself.” Jd. at

594. This Court also noted that district courts retain a

variety of tools to protect officers from unnecessary

discovery, such as a reply under Rule 7(a), or a motion

for a more definite statement under Rule 12(e). Id. at

597-98. This Court made it crystal clear, however, that

courts are not permitted to manufacture new rules for

qualified immunity cases.

This Court confirmed that principe in Swierkiewicz

v. Sorema N.A., 534 U.S. 506 (2002), holding

unanimously that courts may not impose heightened

pleading requirements absent a rule or statute so

providing. This Court held that the Second Circuit’s

heightened pleading requirement for employment

eases “conflicts with Federal Rule of Civil Procedure

8(a)(2).” Id. at 512. This Court confirmed that, aside

20

from the exceptions identified in Rule 9(b), “rule 8(a)’s

simplified pleading standard applies to all civil actions.”

Td. at 518. As in Leatherman, this Court noted that

‘“{jJust as Rule 9(b) makes no mention of municipal

liability under [42 U.S.C. § 1983], neither does it refer

to employment discrimination.” /d.

More recently, Hill v. McDonough, 547 U.S. 573

(2006), reached the same conclusion in a prisoner § 1983

claim: “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.” Jd. at 582.

And just last Term, this Court in Twombly and

Erickson v. Pardus, 127 S. Ct. 2197 (2007), reaffirmed

that Rule 8 means what it says, and applies to all civil

cases unless a rule or statute otherwise provides. This

Court held that “we do not require heightened fact

pleading of specifics, but only enough facts to state a

claim to relief that is plausible on its face.” Twombly,

127 S. Ct. at 1974. Similarly, in Erickson this Court

confirmed that a § 1983 plaintiff only needs to “give

the defendant fair notice of what the .. . claim is and

the grounds upon which it rests.”” 127 S. Ct. at 2200

(quoting Twombly, 127 S. Ct. at 1964). This Court

squarely held that “specific facts are not necessary.”

Id.

This Court’s opinions could not be clearer. This

Court has repeatedly rejected attempts by the lower

courts to impose heightened standards of proof, or

heightened pleading requirements, in the absence of

rules or statutes so providing. This Court has

repeatedly confirmed that Rule 8—and only Rule 8—

applies to civil rights claims, including claims against

individual officers raising qualified immunity issues.

21

B. All the Circuits Now Apply this Court’s

Decisions

At different times, different circuits have employed

various forms of heightened pleading requirements for

civil rights claims brought against individual officers.

All of those cases have now been expressly overruled

or abandoned in light of this Court’s intervening

decisions, and the case law is now remarkable uniform

and consistent across the circuits.

First Circuit. The First Circuit previously applied

a heightened pleading standard, but has now overruled

it. In Hducadores Puertorriquenos en Accion v.

Hernandez, 367 F.3d 61 (1st Cir. 2004), the First

Circuit revisited its pleading requirements for civil

rights claims against individual officers. The court

recognized that this Court’s jurisprudence “evinces a

developing trend. This trend has approached

crystalline form with Swierkiewicz. ... We join several

of our sister circuits in holding that there are no

heightened pleading standards for civil rights cases,”

and that “[aJll civil rights actions are subject to Rule

8(a)’s notice pleading regime. To the extent that

preexisting circuit precedent contradicts this holding,

we regard that precedent as abrogated by recent

Supreme Court case law.” Jd. at 65-67; see also Calvi

v. Knox County, 470 F.8d 422, 480 (1st Cir. 2006)

(“[T]his court has held that there are no heightened

pleading standards for civil rights cases and that,

therefore, notice pleading rules apply to such actions.”).

Second Circuit. The Second Circuit has reached the

same conclusion. That court recently addressed the

pleading standard for § 1983 claims against individual

officers. After surveying Twombly’s discussion of Rule

8, the Second Circuit held that “[a]bsent any indication

2?

from the Supreme Court that qualified immunity might

warrant an exception to this general approach and the

explicit disclaimer of a heightened pleading standard in

Bell Atlantic, reinforced by the reversal of the Tenth

Circuit’s use of a heightened pleading standard in

Erickson, we conclude that a heightened pleading rule

may not be imposed.” /qbal v. Hasty, 490 F.3d 143, 158

(2d Cir. 2007).

Third Circuit. The Third Circuit picked up on the

trend as early as 1998, and held that “no more is

required of a plaintiff in § 1983 cases” than “the

standards of notice pleading.” Abbott v. Latshaw, 164

F.3d 141, 148 (8d Cir. 1998) (citing Leatherman, 507

U.S. at 168-69), cert. denied, 527 U.S. 1035 (1999); see

also Thomas v. Independence Twp., 463 F.3d 285, 289

(3d Cir. 2006) (“{A] plaintiff has no pleading burden to

anticipate or overcome a qualified immunity defense,

and a mere absence of detailed factual allegations

supporting a plaintiffs claim for relief under § 1983

does not warrant dismissal of the complaint or

establish defendants’ immunity.”).

Fourth Circuit. The Fourth Circuit similarly has

held that “there is no heightened pleading standard in

qualified immunity eases.” Trulock v. Freeh, 275 F.3d

391, 405 (4th Cir. 2001), cert. denied, 537 U.S. 1045

(2002). As this Court suggested in Leatherman, the

Fourth Circuit has encouraged district courts to use

the tools of the federal rules to protect against

unnecessarily disruptive discovery. /d.

Fifth Circuit. The Fifth Circuit previously had a

pleading standard that could arguably be described as

heightened. But in 1995, the Fifth Circuit recognized

that its decisions had intended to require only that

plaintiffs “not plead conelusions’”—which, of course, is

23

perfectly consistent with Rule 8. Schultea v. Wood, 47

F.3d 1427, 1430 (5th Cir. i995). More recently, the

Fifth Circuit explained that “(ijn our decision in

Schultea ... this court modified our prior practice of

requiring heightened, detail-oriented pleading in § 1983

cases against public officials. After Schultea, a plaintiff

no longer needs to ‘anticipate the [qualified immunity]

defense in his complaint at the risk of dismissal under

Rule 12.” Johnson v. Johnson, 385 F.3d 508, 529 (5th

Cir. 2004) (quoting Schultea, 47 F.3d at 1430)

(alteration in original).

Sixth Circuit. The Sixth Circuit confirms that “the

Federal Rules of Civil Procedure provide for a liberal

system of notice pleading. ... Claims made pursuant to

42 U.S.C. § 1983 are not subject to heightened pleading

standards.” Smith v. City of Salem, 378 F.3d 566, 577

(6th Cir. 2004).

Seventh Circuit. The Seventh Circuit holds that “as

the Supreme Court and this court have emphasized,

there are no special pleading rules for prisoner civil

rights cases.” Higgs v. Carver, 286 F.3d 437, 439 (7th

Cir. 2002) (citing Swierkiewicz); cf. Estate of Sims v.

County of Bureau, 506 F.3d 509, 514 (7th Cir. 2007)

(applying Rule 8 and Twombly to civil rights claim

under § 1983); see also Nance v. Vieregge, 147 F.3d 589,

590 (7th Cir.) (“Civil rights complaints are not held to a

higher standard than complaints in other civil

litigation.”), cert. denied, 525 U.S. 973 (1998).

Eighth Circuit. The Eighth Circuit previously

applied a heightened standard, but has now overruled

that standard: “We now recognize [our prior case’s]

heightened pleading requirement in § 1983 suits

against individual defendants has been abrogated,” and

that “[t]he only permissible heightened pleading

24

requirements in civil suits are those contained in the

Federal Rules of Civil Procedure or those in federal

statutes enacted by Congress.” Doe v. Cassel, 403 F.3d

986, 989 (8th Cir. 2005).

Ninth Circuit. The Ninth Circuit similarly now

recognizes that its prior heightened requirement was

inconsistent with this Court’s cases: “In light of

Crawford-El, nearly all of the circuits have now

disapproved any heightened pleading standard in cases

other than those governed by Rule 9(b).” Galbraith v.

County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir.

2002). “In light of Crawford-El and Swierkiewicz, we

must conclude that [our prior cases] are no longer good

law to the extent that they require heightened

pleading of improper motive in constitutional tort

cases.” Id.; see alsu Empress LLC v. City & County of

San Francisco, 419 F.3d 1052, 1056 (9th Cir. 2005)

(“(T]he logical conclusion of Leatherman, Crawford-El,

and Swierkiewicz dictates that a heightened pleading

standard should only be applied when the Federal

Rules of Civil Procedure so require.”).

Tenth Circuit. The Tenth Circuit has also overruled

its prior heightened pleading standard in light of this

Court’s recent cases. “We conclude that this court’s

heightened pleading requirement cannot survive

Crawford-El. ... [This court’s heightened pleading

requirement was based on Harlow. ... Nevertheless,

as the Supreme Court made clear in Crawford-El,

neither the holding nor the reasoning of Harlow, a

qualified immunity case, warranted a change in the

requirements of a plaintiff's affirmative case.” Currier

v. Doran, 242 F.3d 905, 915-16 (10th Cir. ), cert. denied,

534 U.S. 1019 ( 2001).

25

Eleventh Circuit. Petitioners correctly note that

the Eleventh Circuit continues to describe its pleading

standard as “heightened.” Hpps v. Watson, 492 F.3d

1240, 1242-43 (11th Cir. 2007). However, as with the

Fifth Circuit’s prior standard, it is far from clear that

there is anything in fact “heightened” about its

standard. The Eleventh Cireuit describes its

“heightened” standard as requiring that plaintiffs

cannot rely on “vague or conclusory allegations,” and

must inelude at least “[slome factual detail.”’ /7d.

(citations omitted). That standard is consistent with

Rule 8 and is not meaningfully different from other

circuits. The 11th Circuit also has not yet re-analyzed

its case law under this Court’s recent decisions in

Twombly and Erickson.

D.C. Cireuit. The D.C. Cireuit addressed the

pleading requirement in a civil rights claim brought

under § 1983, and confirmed that “at this stage of the

litigation, [plaintiff] needed only to supply ‘a short and

plain statement of the claim showing that the pleader is

entitled to relief,’ Fed. R. Civ. P. 8(a), which he has

done.” Warren v. District of Columbia, 353 F.3d 36, 39

(D.C. Cir. 2004) (citing Swierkiewicz and Leatherman).

In sum, the current state of the law in the circuits is

remarkably uniform. With the possible exception of

the 11th Circuit, all of the formerly divergent circuits

have now reevaluated their pleading standards for civil

rights cases against individual defendants in light of

this Court’s recent opinions. All have reached the

same conclusion: Rule 8 applies, there are no

heightened pleading requirements, and the complaint

must merely allege facts permitting a plausible

inference of individual liability, or a reasonable

26

expectation that discovery will lead to evidence of the

personal involvement of the individual defendant.

C. None of Petitioners’ Cited Cases

Demonstrate that Other Circuits Would

Disagree

Despite the extraordinary consistency in the

articulated pleading standards across the circuits,

petitioners claim to have identified some cases that

suggest a conflict. Petitioners misunderstand the

cases, which reflect fact-bound applications of settled

law to particular factual settings.

Petitioners suggest that the Second and Seventh

Circuits may accept reduced pleading standards, and

endorse conclusory allegations. That is incorrect.

The Second Circuit in /qbal v. Hasty, 490 F.3d 143

(2d Cir. 2007), revisited the pleading standards for

§ 1983 claims in light of Twombly. After surveying

Leatherman, Crawford-El, Swierkiewicz, and

Twombly, the Second Circuit confirmed that “absent

any indication from the Supreme Court that qualified

immunity might warrant an exception to” Rule 8’s

ordinary notice pleading requirements, “and the

explicit disclaimer of a heightened pleading standard in

Bell Atlantic, reinforced by the reversal of the Tenth

Circuit's use of a heightened pleading standard in

Erickson, we conclude that a heightened pleading rule

may not be imposed.” Jd. at 158. The court rejected “a

universal standard of heightened fact pleading,” and

instead held that a plaintiff simply must “amplify a

claim with some factual allegations in those contexts

where such amplification is needed to render the claim

plausible.” Jd. at 157-58. The Second Circuit’s

standard plainly is neither heightened nor reduced,

requires a level of detail that will vary depending on

27

the particular theory of the case, and is consistent with

the standards articulated by this Court and adopted by

other circuits.

Indeed, what petitioners point to as evidence of a

relaxed standard was in fact that court’s effort to

protect individual defendants in civil rights cases. Just

as the Ninth Circuit did below, and just as this Court

endorsed in Leatherman and Crawford-El, the Second

Circuit embraced notice pleading but simultaneously

encouraged district courts to avail themselves of tools

such as Rule 12(e), and “carefully targeted discovery,”

in order to provide “countervailing discovery

safeguards” to “Rule &(a)’s_ liberal pleading

requirement.” /d. at 158-59. That approach is

consistent with established law. It also does not in any

way help petitioners, who, having completed virtually

all discovery, chose to move solely on the complaint.

Similarly, the Seventh Circuit has consistently held

that “(e]ivil rights complaints are not held to a higher

standard than complaints in other civil litigation.”

Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998); see

also Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002)

(“{AJs the Supreme Court and this court have

emphasized, there are no special pleading rules for

prisoner civil rights cases.”). Petitioners claim that

some language in Higgs—which predates Twombly—

suggests that complaints should not be dismissed on

the ground that they are conclusory. But the Seventh

Cireuit now applies Twombly, just as every other

circuit does. See Estate of Sims v. County of Bureau,

506 F.3d 509, 514 (7th Cir. 2007) (applying Rule 8 and

Twombly to civil rights claim under § 1988).

With respect to the Fifth Circuit, petitioners

themselves concede that what the Fifth Circuit meant

28

by a “heightened pleading standard” is that it does not

permit “‘conclusory’ allegations.” Pet. 13. That, of

course, is not “heightened” in any meaningful way, and

it is consistent with current law.

Petitioners rely heavily on Oliver v. Scott, 276 F.3d

736 (5th Cir. 2002). See Pet. 14-16. That case predates

Swierkiewicz, predates Twombly and Erickson, and

predates the Fifth Circuit’s own repudiation of

heightened pleading in Johnson v. Johnson, 385 F.3d

503, 529 (5th Cir. 2004) (confirming that the Fifth

Circuit had “modified our prior practice of requiring

heightened, detail-oriented pleading in § 1983 cases

against public officials”).

In any event, there is nothing in Oliver that helps

petitioners. In Oliver, the plaintiff sued state

correctional officials for cross-sex strip searches. The

court held that the only policy the plaintiff pointed to

was a policy delegating authority to administer strip

searches to wardens. After noting that the language of

the policy is facially constitutional, the court correctly

held that any unconstitutional application at most

could be attributed to the warden, that higher-up

officials could not be liable on a respondeat superior

theory, and that the constitutiona! policy statement

effectively severed the _ state officials from

responsibility for any improper application of the

policy.

Oliver has nothing to do with this case. The Ninth

Circuit held that respondents stated a claim against

petitioners for specific policies created and

implemented by petitioners, and for intentional conduct

by petitioners, that were themselves unconstitutional.

The fact that the Fifth Circuit declined to permit a case

to continue based on different facts, in a different

29

context, based on a different policy, only means that

different facts may lead to different results. Nothing in

Oliver suggests that the Fifth Circuit would reach a

different outcome on the facts of this case.

As explained above, petitioners correctly note that

the Eleventh Circuit continues to describe its pleading

standard as “heightened.” Epps, 492 F.3d at 1242. But

as Epps itself demonstrates, the standard is not

“heightened” in any practical sense. The Eleventh

Circuit in Epps affirmed denial of qualified immunity

under the First Amendment based only on an

allegation that the plaintiff allowed opponents of the

defendant to post campaign signs on her property and

was fired the next day. The court held that it was

“reasonable to infer” retaliation based on those spare

allegations. Jd. at 1244. The court similarly denied

immunity under the Due Process clause even though

the defendant argued that the plaintiff did not plead

that the county’s personnel policy applied to her. The

Eleventh Circuit, “[dJrawing all inferences in favor of

[plaintiff],” held that the allegations referencing the

policy were sufficient. Jd. at 1247. That result does not

indicate any special burdens on plaintiffs in the

Eleventh Circuit. (Regardless, this case would be an

inappropriate vehicle to address any confusion in the

Eleventh Circuit, and also premature—since the

Eleventh Circuit has not yet reanalyzed these issues

after this Court’s recent cases.)

Petitioners also grasp at fact patterns in different

cases, in hopes of showing that other courts might have

reached different conclusions. But these courts all

apply the same legal standard, and all petitioners can

demonstrate is that different factual contexts may lead

to different results. These cases do not establish that

30

the Ninth Circuit’s conclusion in this case was

incorrect, or that there is any dispute worthy of this

Court’s consideration.

For example, petitioners point to the First Circuit’s

analysis in Redondo-Borges v. U.S. HUD, 421 F.3d 1

(Ist Cir. 2005). See Pet. 26. In Redondo-Borges,

plaintiffs alleged that they were “debarred” from

contracting in violation of their right to procedural due

process. 421 F.3d at 8. The court found that the

complaint “does little more than describe what the

plaintiffs call a suspension,” but “does not anchor this

pejorative term in any supporting facts.” Jd. 8-9.

That, of course, is a far cry from the specific allegations

in this case, in which the lengthy complaint is full of

supporting facts.

Similarly, petitioners rely on Evancho v. Fisher,

423 F.3d 347 (3d Cir. 2005). See Pet. 21-24. Evancho

dealt with a single isolated decision of the sort

routinely made by lower level supervisors—the one-

time transfer of the plaintiff to a lesser job position at

Pennsylvania’s Bureau of Narcotics Investigation and

Drug Control. The Third Circuit held that the plaintiff

could not pursue a constitutional claim against the

Attorney General of Pennsylvania in his individual

capacity without alleging facts showing the Attorney

General's involvement in her transfer. 423 F.3d at 353.

The Third Circuit correctly held, in other words, that

the bare facts alleged about one-time conduct by a low

level employee did not supply “plausible grounds to

infer” that the Attorney General was _ personally

involved in the transfer. Cf. Twombly, 127 S. Ct. at

1965.

But the allegations of structural and pervasive

misconduct in this case certainly do provide “plausible

31

grounds to infer” that petitioners knew about, and

participated in, the practices aileged in the complaint.

This case involves allegations of far more systemic and

widespread constitutional violations, and claims against

hospital and program administrators far closer in the

chain of command (and observation) to those problems

than the Attorney General was to the decision at issue

in Evancho. Petitioners in this case are charged with

responsibility for the central policies of the hospital

they are charged with running, and with knowledge of

constitutional violations that were so widespread and

systemic that it is eminently plausible to infer their

knowledge and approval.

In a similar vein, the Second Circuit in Yeng Jing

Gan v. City of New York, 996 F.2d 522 (2d Cir. 1993),

rejected a substantive due process claim alleging an

assistant district attorney’s failure adequately to

protect a complaining witness, under DeShaney v.

Winnebago County Department of Social Services, 489

U.S. 189 (1989). In dicta, the court noted that plaintiff

also had not alleged facts linking the Manhattan

district attorney to the allegations. /d. at 536. As with

Evancho, failing to allege facts tying a supervisor to a

single event does not shed light on the conduct in this

case.

Petitioners’ reliance on Moya v. Schollenbarger, 465

F.3d 444 (10th Cir. 2006), is emblematic of their effort

3 The Ninth Circuit issued its opinion below shortly after

Twombly, and although it did not use the language of Twombly, its

analysis of the complaint is entirely consistent with that decision.

The Ninth Circuit’s opinion leaves no doubt that it found ample

factual allegations supplying “plausible grounds to infer” clearly

established constitutional violations attributable to petitioners.

32

to transform radically different fact patterns into a

purported dispute over the law. Moya involved a

plumber at the State Fair who had complained to his

supervisors about conditions at the Fair, and alleged

that his supervisors retaliated against him for speaking

out. Id. at 446. The Tenth Circuit held, among other

things, that the plaintiff had not alleged any actual

adverse emp/oyment action. The court noted that Mr.

Moya had simply alleged that he was “exposed” to a

“hostile work environment,” but that such a declaration

was too conclusory to state a First Amendment

retaliation claim. Jd. at 457. The court found that “Mr.

Moya’s amended complaint is completely devoid of any

supporting factual allegations as to what made his

work environment or work conditions hostile.” Jd.

Petitioners’ argument that the allegations in Moya

are “similarly conclusory” to the complaint in this case,

Pet. 25, is utterly divorced from the Ninth Circuit’s

opinion, and from the complaint. In Moya, the plaintiff

alleged that he faced “hostile work conditions,” and did

not specify what he meant by such conditions. In this

case, respondents allege egregious conditions of civil

confinement, and the Ninth Circuit found that these

allegations consisted of, among other things:

(1) force-medicating the Plaintiffs in non-

emergency situations; (2) reducing the Plaintiffs’

access levels and other privileges as a form of

punishment for refusing to participate in

treatment sessions or as retaliation for filing

lawsuits; (3) putting the Plaintiffs in restraints

for nonthreatening and/or nondisruptive

conduct, including the refusal to participate in

treatment or therapy; (4) subjecting the

Plaintiffs to publie strip-searches (sometimes

33

while in four-point restraints); (5) failing to

protect the Plaintiffs from abuse by other

patients or by Atascadero employees; (6) failing

to provide the Plaintiffs with constitutionally

satisfactory conditions of confinement; (7)

forcing the Plaintiffs to participate in treatment;

and (8) denying the Plaintiffs adequate

treatment, thereby converting the Plaintiffs'

civil confinement to a de facto extension of their

prison sentence.

Pet. App. 7a.4

In sum, the only thing petitioners’ cases

demonstrate is that different fact patterns may lead to

different results. The fact that other courts have

rejected complaints with far more conclusory

allegations does not cast any doubt on the propriety of

the Ninth Circuit’s conclusion in this ease. Indeed,

petitioners’ arguments simply confirm that their only

genuine grievance is with the lower courts’ fact-bound

reading of the allegations in this particular case.

* * O*

Petitioners invoke the specter that the prospect of

defending civil rights lawsuits will “distract officials

from their governmental duties, inhibit their

decisionmaking, and deter qualified people from

entering public service.” Pet. 34. Given that

petitioners chose to wait until the end of discovery, and

4 Similarly, petitioners cite cases that reject complaints relying

solely on a “bare assertion of the existence” of a policy. Pet. 27.

Petitioners’ recitation alone should suffice to demonstrate why

those cases do not apply here. The Ninth Cireuit found that there

was much more than a “bare assertion” of policies and practices,

and that conclusion is amply supported by the complaint.

34

then chose to move solely on the pleadings, their fear of

discovery rings hollow. All that the Ninth Circuit held

was that the facts alleged in the complaint, if true,

would show that these petitioners engaged in a pattern

of egregious violations of constitutional rights.

Permitting such allegations to reach discovery will not

threaten any governmental decisionmaking, but

instead will simply allow potentially serious misconduct

by state officials to come to light.

Petitioners cannot legitimately contend that any

court would reject these allegations on the pleadings,

and there is no reason for this Court to grant review at

this stage.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

J. SCOTT BALLENGER JOEL E. KRISCHER

LATHAM & WATKINS LLP Counsel of Record

555 11TH STREET NW JARED A. DELGIN

SUITE 1000 D. INDER COMAR

WASHINGTON, DC 20004 JASMINE R. OBERMAN

(202) 637-2200 LATHAM & WATKINS LLP

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