2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-14-2006

Thomas v. Independence Twp

Precedential or Non-Precedential: Precedential

Docket No. 05-2275

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"Thomas v. Independence Twp" (2006). 2006 Decisions. Paper 396.

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PRECEDENTIAL

UNITED STATES COURT OF APPEAL

FOR THE THIRD CIRCUIT

 

No. 05-2275

 

ANTHONY W. THOMAS, A.W.T., INC.,

t/d/b/a Independence Deli

v.

INDEPENDENCE TOWNSHIP; JOSEPH CHIODO,

Individually and as a member of the Independence

Township Board of Supervisors; GENE FLEEGAL, 

Individually and as a member Independence Township

Board of Supervisors; WENDY POTTS FLEEGAL,

Individually and as Secretary and Treasurer of the

Independence Township Board of Supervisors; FRED

SCHMIDT, Individually and as a member Independence

Township Board of Supervisors; SAM BUTLER, 

Individually and as a member Independence Township

Board of Supervisors

Joseph Chiodo, Gene Fleegal,

Wendy Potts Fleegal, Fred Schmidt and Sam Butler,

Appellants

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 04-cv-01671)

District Judge: Hon. Gary L. Lancaster

 

Argued March 31, 2006
2

BEFORE: SMITH and COWEN, Circuit Judges,

and ACKERMAN*, District Judge

(Filed September 14, 2006)

Alan E. Johnson, Esq. (Argued)

Marshall, Dennehey, Warner,

 Coleman & Goggin

600 Grant Street

2900 U.S. Steel Tower

Pittsburgh, PA 15219

Counsel for Appellants

Colm W. Kenny, Esq.

Gianni Floro, Esq. (Argued)

Tarasi, Tarasi & Fishman

510 Third Avenue

Pittsburgh, PA 15219

Counsel for Appellee

 

OPINION

 

COWEN, Circuit Judge.

The individual defendants appeal the District Court’s

denial of their qualified immunity defense at the dismissal stage. 

The District Court found that the allegations of plaintiffs’

complaint adequately plead the commission of acts that violate

 

*Honorable Harold A. Ackerman, Senior United States District

Judge for the District of New Jersey, sitting by designation.
3

extremely broad, general propositions of law, and, therefore,

denied qualified immunity at the dismissal stage. Today, we

make clear that a qualified immunity determination must be

made in light of the specific factual context of the case, and

when a complaint fashioned under the simplified notice pleading

standard of the Federal Rules does not provide the necessary

factual predicate for such a determination, the district court

should grant a defense motion (whether formally or informally

made) for a more definite statement regarding the facts

underlying the plaintiff’s claim for relief. 

We continue to stand by established precedent that

recognizes that a plaintiff has no pleading burden to anticipate or

overcome a qualified immunity defense, and a mere absence of

detailed factual allegations supporting a plaintiff’s claim for

relief under § 1983 does not warrant dismissal of the complaint

or establish defendants’ immunity. Nevertheless, our decision

today recognizes that a lack of factual specificity in a complaint

prevents the defendant from framing a fact-specific qualified

immunity defense, which, in turn, precludes the district court

from engaging in a meaningful qualified immunity analysis. The

appropriate remedy is the granting of a defense motion for a

more definite statement under Federal Rule 12(e). Even when a

defendant does not formally move for a more definite statement,

the district court has the discretion to demand more specific

factual allegations in order to protect the substance of the

qualified immunity defense and avoid subjecting government

officials who may be immune from suit to needless discovery

and the other burdens of litigation.

 

Because the complaint in this case presents a textbook

example of a pleading as to which a qualified immunity defense

cannot reasonably be framed, we will vacate the District Court’s

order insofar as it relates to qualified immunity and remand to

the District Court with instructions to order the plaintiffs to file a

more definite statement. In addition, for the reasons given

below, we will reverse the District Court’s order denying

defendants’ motion to dismiss for failure to state a claim with

respect to the claims brought under 42 U.S.C. § 1983 and § 1986

against Wendy Potts Fleegal and the claim brought under 42

U.S.C. § 1986 against Sam M. Butler, and remand with
1

 The complaint purports to assert an unlawful taking claim

under the Fifth and Fourteenth Amendments. There is nothing in

the record that indicates that any public official was authorized,

either directly or unofficially, to engage in any taking without

compensation. Further, there cannot be a taking under the

Fourteenth Amendment unless it is shown that property was taken

for public purposes. At oral argument, even when questioned by

the Panel, counsel was unable to articulate how the facts in this

case rose to the level of a public taking cause of action.

Accordingly, we direct the District Court to dismiss the Takings

Clause claim insofar as it is brought against the Individual

Defendants.

4

instructions to grant plaintiffs leave to amend the complaint. For

the reasons stated below, we will also reverse the District

Court’s order denying defendants’ motion to dismiss for failure

to state a claim with respect to the unlawful taking claim under

the Fifth and Fourteenth Amendments, insofar as the claim is

brought against the Individual Defendants.

I.

This is a civil rights action brought by Anthony W.

Thomas and A.W.T., Inc. d/b/a Independence Deli

(“Independence Deli”) against Independence Township

(“Township”), Joseph Chiodo, the Chairman of the Township

Board of Supervisors, Gene Fleegal, a Township Board member,

Fred Schmidt, a Township Board member, Wendy Potts Fleegal,

the Township’s Secretary and Treasurer, and Sam M. Butler, a

member of the Board’s recreation committee (the “Individual

Defendants”). The complaint purports to assert, against the

Individual Defendants, claims under 42 U.S.C. § 1983 for

deprivations of equal protection, due process, free speech, and

political association, and unreasonable search and seizure, as

well as claims for conspiracy under 42 U.S.C. § 1985(3), neglect

to prevent conspiracy under 42 U.S.C. § 1986, abuse of process,

commercial disparagement, and civil conspiracy.1

The complaint alleges that since January of 2001,

plaintiffs have pursued the transfer of a restaurant liquor license
5

to the Independence Deli in the Township. The Township has

steadfastly opposed the transfer and denied plaintiffs’ successive

applications. In response, plaintiffs have petitioned the state

court for redress. The crux of plaintiffs’ complaint is that during

this same time frame, the Individual Defendants have engaged in

a campaign of harassment and intimidation against plaintiffs.

Defendant Sam M. Butler has allegedly made false and

defamatory statements to the Township’s residents about

Thomas, his business, and his Lebanese-American ancestry. The

Township’s police officers, whom Board members Joseph

Chiodo, Gene Fleegal, and Fred Schmidt have the statutory

authority to supervise, have allegedly engaged in the following

conduct: (1) “entering the Plaintiffs[’] business without

probable cause or valid reason;” (2) wrongly “accusing the

Plaintiff, Anthony W. Thomas, of violating the law;” (3)

“misrepresenting the laws;” (4) “conducting surveillance of

Plaintiffs, their businesses, and patrons from an area located

across the street from Plaintiffs’ business;” (5) “increasing and

heightening police presence and surveillance;” (6) “subjecting

the Plaintiffs to unreasonable and unlawful search and seizure;”

and (7) threatening and/or “causing unwarranted investigations

of the Plaintiffs by other governmental agencies.” (Complaint ¶

40.)

 

The complaint alleges that Individual Defendants Joseph

Chiodo, Gene Fleegal, and Fred Schmidt were aware of the

police misconduct but failed to take any action to abate it. In

addition, the complaint avers that the Individual Defendants

have “portray[ed] the Plaintiff[s] . . . in a false light,” “act[ed]

under color of state law for an unlawful purpose mainly to

prohibit Mr. Thomas from engaging in a lawful enterprise, solely

based upon Mr. Thomas’ race and ancestry,” and “engag[ed] in

the foregoing conduct . . . because of his race.” (Complaint ¶

41.)

The Individual Defendants filed a motion to dismiss

arguing, inter alia, that the complaint, insofar as it asserts claims

against them in their individual capacities, should be dismissed

on the basis of qualified immunity. They reasoned that “it is

impossible to evaluate whether a particular action of a particular
6

individual defendant violated clearly established law, since it is

impossible to know, on the basis of the Complaint, what the

action is.” (App. at 58.) In an opinion entered March 29, 2005,

and a supplemental opinion entered July 27, 2005, the District

Court denied the motion to dismiss without prejudice to the

Individual Defendants’ right to reassert the qualified immunity

defense in a motion for summary judgment based on a more

fully developed record.

Under the collateral-order doctrine, we have jurisdiction

to review the District Court’s denial of qualified immunity. 

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

II.

A.

We have stated that “qualified immunity will be upheld

on a 12(b)(6) motion only when the immunity is established on

the face of the complaint.” Leveto v. Lapina, 258 F.3d 156, 161

(3d Cir. 2001) (citations and internal quotation marks omitted). 

The Individual Defendants have not argued that their conduct as

alleged in the complaint does not violate clearly established law. 

Rather, they make the novel argument that plaintiffs’ complaint

is subject to dismissal on the basis of qualified immunity

because the complaint does not contain any factual allegations

that would negate their qualified immunity defense. More

specifically, the Individual Defendants claim that they are

entitled to qualified immunity because the complaint does not

contain factual allegations supporting a claim of violation of

clearly established law. This argument is legally unsound.

“[T]he qualified-immunity defense shields government

agents from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” 

Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (internal

quotation marks, brackets, and citations omitted). An essential

attribute of qualified immunity is the “entitlement not to stand

trial or face the other burdens of litigation, conditioned on the

resolution of the essentially legal question whether the conduct
7

of which the plaintiff complains violated clearly established

law.” Mitchell, 472 U.S. at 526. The immunity is intended to

protect officials from the potential consequences of suit,

including distraction from official duties, inhibition of

discretionary action, and deterrence of able people from public

service. Id. “[E]ven such pretrial matters as discovery are to be

avoided if possible, as ‘[i]nquiries of this kind can be peculiarly

disruptive of effective government.’” Id. (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 817 (1982)).

Because qualified immunity bestows immunity from suit,

the Supreme Court “repeatedly ha[s] stressed the importance of

resolving immunity questions at the earliest possible stage in

litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). The

Supreme Court has admonished that “[u]ntil this threshold

immunity question is resolved, discovery should not be

allowed.” Harlow, 457 U.S. at 818. Thus, “[u]nless the

plaintiff’s allegations state a claim of violation of clearly

established law, a defendant pleading qualified immunity is

entitled to dismissal before the commencement of discovery.” 

Mitchell, 472 U.S. at 526.

Here, the Individual Defendants argue that plaintiffs’

complaint is subject to dismissal because plaintiffs have failed to

allege facts showing that the Individual Defendants’ conduct

“violate[d] clearly established statutory or constitutional rights

of which a reasonable person would have known.” Behrens, 516

U.S. at 305. They also contend that plaintiffs should not be

allowed to survive a qualified immunity defense at the motion to

dismiss stage by crafting a complaint so lacking in factual detail

that it effectively avoids a qualified immunity analysis. 

(Appellant’s Brief 23.) Their argument is not without some

appeal since imposition of such a pleading requirement would

facilitate the early resolution of the qualified immunity issue and

would avoid the risk of subjecting public officials who are

immune to suit from the burdens of discovery.

While facially appealing, the Individual Defendants’

argument ultimately lacks merit because it conflates qualified

immunity with the merits of a plaintiff’s cause of action under §

1983. In Gomez v. Toledo, 446 U.S. 635, 635-36 (1980), the
8

Supreme Court considered the issue of whether, in an action

brought under § 1983 against a public official whose position

might entitle him to qualified immunity, a plaintiff must plead

allegations in anticipation of the affirmative defense. The

Gomez Court began its analysis by elucidating the distinction

between a plaintiff’s cause of action under § 1983 and a claim of

qualified immunity:

[T]wo -- and only two -- allegations are required in

order to state a cause of action under [§ 1983]. 

First, the plaintiff must allege that some person has

deprived him of a federal right. Second, he must

allege that the person who has deprived him of that

right acted under color of state or territorial law.

Id. at 640. The Gomez Court observed that neither the language

of § 1983 nor its legislative history suggests that a plaintiff has

the duty to plead facts relevant to a qualified immunity defense

in order to state a claim. See id. at 639-40. Qualified immunity,

explained the Court, is a defense available to the government

official in question, not a part of the plaintiff’s cause of action

which he must denigrate. Id. at 640. Citing to the Federal

Rules, the Court stated that “[s]ince qualified immunity is a

defense, the burden of pleading it rests with the defendant.” Id.

(citing Fed. R. Civ. P. 8(c) (imposing upon the defendant the

burden of pleading any “matter constituting an avoidance or

affirmative defense”)). The Court concluded that there is “no

basis for imposing on the plaintiff an obligation to anticipate

such a defense. . . .” 446 U.S. at 640.

The Individual Defendants argue that Gomez is no longer

good law because the standard for measuring qualified immunity

has since changed. At the time the Gomez Court rendered its

decision, the standard for measuring qualified immunity

contained a subjective component. Id. at 641. In Harlow,

however, the Supreme Court eliminated the subjective good faith

component, replacing it with a purely objective standard. 457

U.S. at 818-19. The Individual Defendants question the

continued force of the Gomez rule of pleading since the facts

relevant to the immunity defense are now no longer exclusively

within the knowledge and control of the defendant.
9

However, since the date of the Supreme Court’s decision

in Harlow, the Court has reaffirmed the Gomez rule of pleading. 

Crawford-El v. Britton, 523 U.S. 574, 595 (1998). In CrawfordEl, the Supreme Court considered whether federal courts may

apply a heightened evidentiary standard in § 1983

unconstitutional motive cases brought by prisoners against

government officials. Id. at 577-78. In refusing to allow a

heightened evidentiary standard, the Court observed that “we

have consistently declined similar invitations to revise

established rules that are separate from the qualified immunity

defense.” Id. at 595. Significantly, the Crawford-El Court

stated that it has “refused to change the Federal Rules governing

pleading by requiring the plaintiff to anticipate the immunity

defense.” Id. (citing Gomez, 446 U.S. at 639-40). The Court

explained that “questions regarding pleading, discovery, and

summary judgment are most frequently and most effectively

resolved either by the rulemaking process or the legislative

process.” 523 U.S. at 595.

We read Crawford-El as a reaffirmation of the rule

announced in Gomez that the burden of pleading a qualified

immunity defense rests with the defendant, not the plaintiff. Our

reading of Crawford-El is consistent with general rules of

pleading prescribed by the Federal Rules, which require the

plaintiff to set forth only “a short and plain statement of the

claim showing that the pleader is entitled to relief,” and place on

the defendant the burden to set forth any “matter constituting an

avoidance or affirmative defense.” Fed. R. Civ. P. 8 (a), (c). 

 

We recognize that the Supreme Court stated in Mitchell

and restated in Behrens that “‘[u]nless the plaintiff’s allegations

state a claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before the

commencement of discovery.’” Behrens, 516 U.S. at 306

(quoting Mitchell, 472 U.S. at 526). Notably, however, neither

Mitchell nor Behrens specifically addressed the propriety of

imposing a burden of pleading allegations in anticipation of a

qualified immunity defense on the plaintiff. Rather, Mitchell

and Behrens dealt with the appealability of orders denying

qualified immunity. In Mitchell, the Supreme Court “h[e]ld that

a district court’s denial of a claim of qualified immunity, to the
2

 Because we conclude that plaintiffs have no duty to plead

allegations in anticipation of a qualified immunity defense, we

rather easily conclude that plaintiffs do not have the concomitant

10

extent that it turns on an issue of law, is an appealable ‘final

decision’ within the meaning of 29 U.S.C. § 1291

notwithstanding the absence of a final judgment.” 472 U.S. at

530. In Behrens, the Supreme Court clarified that an order

denying qualified immunity at the summary judgment stage is

immediately appealable even in cases where the defendant

brought a prior appeal of an unfavorable qualified immunity

ruling at the motion to dismiss stage. 516 U.S. at 301-11. 

Moreover, the Mitchell Court itself recognized that “a claim of

immunity is conceptually distinct from the merits of the

plaintiff’s claim that his rights have been violated.” 472 U.S. at

527-28. Indeed, in concluding that a denial of qualified

immunity is immediately appealable, the Mitchell Court

reasoned that a claim of immunity is sufficiently separable from,

and collateral to, the rights asserted in a plaintiff’s action to

satisfy the requirements of the collateral order doctrine. Id. at

527-29. In our view, Mitchell supports our conclusion that a

plaintiff need not plead allegations relevant to an immunity

claim in order to set forth “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a).

We read the above-referenced statement in Mitchell and

Behrens to mean that when a plaintiff, on his own initiative,

pleads detailed factual allegations, the defendant is entitled to

dismissal before the commencement of discovery unless the

allegations state a claim of violation of clearly established law. 

Mitchell, 472 U.S. at 526. We do not read Behrens and Mitchell

as establishing an unprecedented rule of pleading requiring a

plaintiff to set forth allegations negating an affirmative defense.

 

As stated in Gomez and reaffirmed in Crawford-El, the

burden of pleading qualified immunity rests with the defendant,

not the plaintiff. Therefore, we conclude that a plaintiff has no

obligation to plead a violation of clearly established law in order

to avoid dismissal on qualified immunity grounds.2
duty to do so with particularity. In the next section of this opinion,

we address the issue of whether plaintiffs have an obligation to

satisfy a heightened pleading requirement with respect to the

allegations supporting their claim for relief.

11

Accordingly, even if we were to assume that the allegations in

the complaint were too vague and conclusory to state a claim of 

violation of clearly established law, that pleading deficiency

would not entitle the Individual Defendants to dismissal of the

complaint on the basis of qualified immunity or any other

ground. 

B.

Failing that argument, the Individual Defendants make

the related argument that, at a minimum, the complaint does not

plead allegations supporting a constitutional violation. A court

ruling on a qualified immunity issue must make a threshold

inquiry as to whether “[t]aken in the light most favorable to the

party asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right?” Saucier v. Katz, 533

U.S. 194, 201 (2001). Thus, we will consider the threshold issue

of whether plaintiffs have alleged a deprivation of a

constitutional right at all. See Wright v. City of Philadelphia,

409 F.3d 595, 604-07 (3d Cir. 2005) (Smith, J., concurring). For

the reasons stated below, we conclude that, except with respect

to the claims brought under 42 U.S.C. § 1983 and § 1986 against

Wendy Potts Fleegal, and the claim brought under 42 U.S.C. §

1986 against Sam M. Butler, and, as discussed supra, except

with respect to the unlawful taking claim insofar as it is brought

against all of the Individual Defendants, the complaint

adequately alleges the commission of constitutional violations

by the Individual Defendants.

1.

As an initial matter, we reject the Individual Defendants’

argument that we should apply a heightened pleading standard in

cases in which a defendant pleads qualified immunity. In

Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005), we held that a

civil rights complaint brought under § 1983 against a
 3

 The Leatherman Court rejected the argument that a

municipality’s freedom from respondeat superior liability is the

equivalent of immunity from suit. 507 U.S. at 166. The Court

therefore had no occasion to consider whether a heightened

pleading standard was necessary to avoid evisceration of a

municipality’s immunity from suit or “whether our qualified

immunity jurisprudence would require a heightened pleading in

cases involving individual government officials.” Id. at 166-67. 

12

government official need not satisfy a heightened pleading

standard in order to state a claim for relief. Id. at 351-53. We

did not expressly address whether a particularity requirement

applies in civil rights actions in which the defendant pleads

qualified immunity. However, we heavily relied upon the

teachings of two Supreme Court cases: Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit, 507 U.S.

163 (1993), and Swierkiewicz v. Sorema, 534 U.S. 506 (2002),

and the Supreme Court’s guidance in those cases applies with

equal force in cases in which the defendant raises a qualified

immunity defense.

In Leatherman, the Supreme Court held that a federal

court may not apply a heightened pleading standard in civil

rights cases alleging municipal liability under § 1983. 507 U.S.

at 168. The Leatherman Court reasoned that Rule 9(b) of the

Federal Rules imposes a particularity requirement with respect to

averments of fraud and mistake, but does not mention

complaints alleging municipal liability under § 1983. Id. The

Court opined that imposition of a specificity requirement in

cases alleging municipal liability is a “result which must be

obtained by the process of amending the Federal Rules, and not

by judicial interpretation.” Id. 3

Similarly, in Swierkiewicz, the Supreme Court considered

whether a heightened pleading standard applies in employment

discrimination cases. 534 U.S. at 508. In holding that a

heightened standard does not apply, the Court explained that

“Rule 8(a)’s simplified pleading standard applies to all civil

actions, with limited exceptions.” Id. at 513. The Court

highlighted that Rule 9(b) provided for greater specificity only
13

with respect to averments of fraud or mistake. Id. The Court

reiterated that “complaints in these cases, as in most others, must

satisfy only the simple requirements of Rule 8(a).” Id. In so

concluding, the Court echoed its words in Leatherman: “[a]

requirement of greater specificity for particular claims is a result

that ‘must be obtained by the process of amending the Federal

Rules, and not by judicial interpretation.’” Id. at 515 (quoting

Leatherman, 507 U.S. at 168).

The marching orders of the Supreme Court in both

Leatherman and Swierkiewicz are clear: the notice pleading

standard of Rule 8(a) applies in all civil actions, unless otherwise

specified in the Federal Rules or statutory law. There is no

federal rule or statute that prescribes a heightened pleading

standard in § 1983 civil rights actions in which the defendant

pleads a qualified immunity defense. Hence, we now make clear

that which was implied in Evancho: a civil rights complaint

filed under § 1983 against a government official need only

satisfy the notice pleading standard of Rule 8(a), regardless of

the availability of a qualified immunity defense.

2.

Applying a notice pleading standard, and construing the

facts in a light most favorable to plaintiffs, we now consider

whether the complaint adequately alleges the deprivation of

plaintiffs’ constitutional rights. Under a simplified notice

pleading standard, a complaint need contain only “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a). As the Supreme Court has

advised, the Federal Rules “‘do not require a claimant to set out

in detail the facts upon which he bases his claim.’” Leatherman,

507 U.S. at 168 (quoting Conley v. Gibson, 355 U.S. 41, 47

(1957)). Rather, the complaint must only “give the defendant

fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Conley, 355 U.S. at 47. At the outset, we reject

the Individual Defendants’ argument that the complaint is

subject to dismissal due to the lack of detailed factual

allegations. In Alston v. Parker, 363 F.3d 229 (3d Cir. 2004), we

noted that a civil rights complaint was not subject to dismissal

due to the absence of factual allegations. Id. at 233 n.6. We
14

reasoned that “a plaintiff need not plead facts,” but, instead,

“need only make out a claim upon which relief can be granted.” 

Id. Should more facts be necessary to define the disputed facts

and issues, we noted that other procedural mechanisms, such as

discovery, are available. Id. One year later, in In re Tower Air,

Inc., 416 F.3d 229 (3d Cir. 2005), we reiterated that “a plaintiff

will not be thrown out of court on a Rule 12(b)(6) motion for

lack of detailed facts.” Id. at 237. We qualified that “supporting

facts should be alleged, but only those necessary to provide the

defendant fair notice of the plaintiff’s claim and the ‘grounds

upon which it rests.’” Id. (quoting Conley, 355 U.S. at 47). 

With these principles in mind, we turn to the question posed in

Saucier, namely, whether “[t]aken in the light most favorable to

the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right?” 533 U.S. at

201.

First Amendment Claims

In order to plead a retaliation claim under the First

Amendment, a plaintiff must allege: (1) constitutionally

protected conduct, (2) retaliatory action sufficient to deter a

person of ordinary firmness from exercising his constitutional

rights, and (3) a causal link between the constitutionally

protected conduct and the retaliatory action. Mitchell v. Horn,

318 F.3d 523, 530 (3d Cir. 2003). “[T]he key question in

determining whether a cognizable First Amendment claim has

been stated is whether ‘the alleged retaliatory conduct was

sufficient to deter a person of ordinary firmness from exercising

his First Amendment rights.’” McKee v. Hart, 436 F.3d 165, 170

(3d Cir. 2006) (quoting Suppan v. Dadonna, 203 F.3d 228, 235

(3d Cir. 2000)); see also Crawford-El v. Britton, 523 U.S. 574,

589 n.10 (1998) (“The reason why such retaliation offends the

Constitution is that it threatens to inhibit exercise of the

protected right.”). 

Here, the complaint alleges that the Individual Defendants

have engaged in a campaign of harassment and intimidation in

retaliation against plaintiffs for exercising their First

Amendment rights. The complaint asserts that the retaliatory

action has chilled plaintiffs’ speech and discouraged them from
4

 In this regard, we note that there is a “dearth of precedent

of sufficient specificity . . . regarding [an individual’s] First

Amendment right to be free from retaliatory harassment.” McKee,

436 F.3d at 173. 

5

 The complaint purports to assert a violation of plaintiffs’

First Amendment right to freedom of political association. We

cannot rule out that with the addition of supporting allegations,

plaintiffs might be able to allege such a constitutional violation. 

15

seeking judicial redress. Although “it is generally a question of

fact whether a retaliatory campaign of harassment has reached

the threshold of actionability under § 1983,” Suppan, 203 F.3d at

233,4

 construing the allegations in plaintiffs’ favor, we conclude

that plaintiffs have adequately pled First Amendment retaliation

claims under the Free Speech and Petition Clauses.5

 

Fourth Amendment Claim

The Fourth Amendment recognizes “the right of the

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, . . . and no Warrants

shall issue, but upon probable cause.” U.S. Const. amend. IV. 

The Fourth Amendment protection extends in some measure to

businesses. See G.M. Leasing Corp. v. United States, 429 U.S.

338, 353 (1977) (noting that corporations have some Fourth

Amendment rights, but, by their special nature, may open

themselves to intrusions that would not be permissible in a

purely private context).

 

Here, the complaint sets forth the basic relevant facts and

makes reference to an “unreasonable and unlawful search and

seizure.” (Complaint ¶¶ 40, 49.) The complaint indicates that

the allegedly unreasonable search and seizure occurred at

plaintiffs’ business establishment and was part of a course of

conduct “beginning in 2001.” (Complaint ¶¶ 39-40.) In

addition, the complaint avers that the Individual Defendants

“us[ed] excessive force with the Plaintiff, Anthony W. Thomas.” 

(Complaint ¶ 71.) Under the simplified notice pleading

standard, we conclude that plaintiffs have sufficiently alleged a
16

Fourth Amendment claim.

Fourteenth Amendment Due Process Claim

The Fourteenth Amendment prohibits state deprivations

of life, liberty, or property without due process of law. Robb v.

City of Philadelphia, 733 F.2d 286, 292 (3d Cir. 1984). We note

that an individual does not have a protected property interest in

reputation alone. Paul v. Davis, 424 U.S. 693, 701 (1976). 

Similarly, the denial of plaintiffs’ application for a liquor license

transfer cannot support a due process claim. See Appeal of

Spankard, 10 A.2d 899, 903 (Pa. Super. Ct. 1940). However,

“the liberty to pursue a calling or occupation . . . is secured by

the Fourteenth Amendment.” Piecknick v. Commonwealth of

Pennsylvania, 36 F.3d 1250, 1259 (3d Cir. 1994) (internal

citations and quotation marks omitted).

 

The complaint alleges that the Individual Defendants’

campaign of defamation, harassment, and intimidation has

deprived plaintiffs of their liberty and property interests in their

business without due process of law. Construing these

allegations in plaintiffs’ favor, we conclude that plaintiffs have

adequately pled a violation of their Fourteenth Amendment due

process rights. Aside from the qualified immunity issue,

plaintiffs’ ability to succeed on such a due process claim

depends on whether they can show that the alleged harassment

“remove[d] or significantly alter[ed]” plaintiffs’ liberty and

property interests in their business. See San Jacinto Savings &

Loan v. Kacal, 928 F.2d 697, 704 (5th Cir. 1991) (reversing the

district court’s order granting summary judgment and allowing

the plaintiff to proceed on her § 1983 due process claim where

there was evidence that the police officers’ harassment of

plaintiff and her customers caused the plaintiff to lose so much

business that she was forced to close her business and default on

her lease). 

Fourteenth Amendment Equal Protection Claim

The Equal Protection Clause “prohibits selective

enforcement of the law based on considerations such as race.” 

Whren v. United States, 517 U.S. 806, 813 (1996); Village of
6

 The complaint also alleges in generic terms that the

Individual Defendants “enforced [the law] in a selective fashion

against them in retaliation for exercising their [c]onstitutionally

protected rights.” (Complaint ¶ 50.) However, “[a] pure or generic

retaliation claim [ ] simply does not implicate the Equal Protection

Clause.” Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997);

accord Maldonado v. City of Altus, 433 F.3d 1294, 1308 (10th Cir.

2006); R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 440

(6th Cir. 2005).

17

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“[A]

successful equal protection claim[] [may be] brought by a ‘class

of one,’ where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in

treatment.”). Here, the complaint alleges that the Individual

Defendants engaged in a campaign of harassment in order to

deprive plaintiffs of their “right to not have the law enforced in a

selective fashion against them.” (Complaint ¶ 50.) The

complaint avers that the Individual Defendants engaged in the

misconduct “solely based upon Mr. Thomas’ race and ancestry,”

and that plaintiffs are “subject to the exercise of police and

official power and actions to which similarly situated persons are

not subject by the Defendants.” (Complaint ¶¶ 41, 60.) Based

upon these allegations, we conclude that plaintiffs have

adequately alleged an equal protection claim. See Desi’s Pizza,

Inc. v. City of Wilkes-Barre, 321 F.3d 411, 423-26 (3d Cir. 2003)

(indicating, without deciding, that a campaign of harassment

undertaken against plaintiffs with a racially discriminatory intent

might support an equal protection claim).6

Claims Brought Under 42 U.S.C. § 1985(3) and 42 U.S.C. §

1986

Section 1985(3) permits an action to be brought by one

injured by a conspiracy formed “for the purpose of depriving,

either directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws.” Farber v. City of Paterson, 440

F.3d 131, 134 (3d Cir. 2006) (quoting 42 U.S.C. § 1985(3)). 

Section 1986 provides as follows:
18

[E]very person who, having knowledge that any of

the wrongs conspired to be done, and mentioned in

section 1985 of this title, are about to be

committed, and having power to prevent or aid in

preventing the commission of the same, neglects or

refuses so to do, if such wrongful act be

committed, shall be liable to the party injured, or

his legal representatives, for all damages caused by

such wrongful act, which such person by

reasonable diligence could have prevented. . . .

42 U.S.C. § 1986. Except to the extent that the § 1986 claim is

brought against defendants Wendy Potts Fleegal and Sam M.

Butler, which is discussed below, we conclude that the

allegations of the complaint adequately allege constitutional

violations which form the basis of plaintiffs’ claims for relief

under § 1985(3) and § 1986. 

Certain Claims Against Wendy Potts Fleegal, the Township’s

Secretary and Treasurer, and Sam M. Butler, Member of the

Township Recreation Committee

With respect to the claims brought under 42 U.S.C. §

1983 and § 1986 against Wendy Potts Fleegal, the Secretary and

Treasurer of the Township, and the claim brought under 42

U.S.C. § 1986 against Sam M. Butler, member of the Township

Recreation Committee, we conclude that the allegations of

plaintiffs’ complaint do not support cognizable claims. There

are no allegations showing that Wendy Potts Fleegal or Sam M.

Butler were personally involved, through personal direction or

actual knowledge and acquiescence, in the wrongs alleged with

respect to these claims. See Rode v. Dellarciprete, 845 F.2d

1195, 1207 (3d Cir. 1988) (“A[n] [individual government]

defendant in a civil rights action must have personal

involvement in the alleged wrongs; liability cannot be predicated

solely on the operation of respondeat superior. Personal

involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.”) (citations

omitted). As a result, we conclude that the claims brought under

42 U.S.C. § 1983 and § 1986 against Wendy Potts Fleegal, and

the claim brought under 42 U.S.C. § 1986 against Sam M.
19

Butler, must be dismissed, with leave to amend.

Based upon the foregoing, we conclude that the complaint

adequately alleges cognizable constitutional claims against all

Individual Defendants, with the exception of the § 1983 and §

1986 claims against Wendy Potts Fleegal and the § 1986 claim

against Sam M. Butler, and, as discussed supra, the unlawful

taking claim insofar as it is brought against the Individual

Defendants. Accordingly, with those exceptions, the Individual

Defendants are not entitled to dismissal on qualified immunity

grounds and/or for failure to state a claim for relief.

C.

Our conclusion that the Individual Defendants are not

entitled to qualified immunity at this time does not end our

inquiry. In order to protect the substance of the qualified

immunity defense and avoid unnecessarily subjecting the

Individual Defendants who may be immune from suit to

needless discovery and the other burdens of litigation, we will

remand this case to the District Court with instructions to order

plaintiffs to file a more definite statement under Rule 12(e) so

that the Individual Defendants may reassert, and the District

Court may reconsider, the qualified immunity issue in light of

the factual context of this case.

1.

We recognize that there is an inherent tension between

federal qualified immunity jurisprudence and the concept of

notice pleading. See Jacobs v. City of Chicago, 215 F.3d 758,

765 n.3. (7th Cir. 2000) (noting the tension between qualified

immunity and the notice pleading requirements of Rule 8). On

one hand, the Supreme Court has stated that resolution of the

qualified immunity defense entails a fact-specific inquiry, see

Saucier v. Katz, 533 U.S. 194, 201 (2001), which should be

made at the earliest possible stage in litigation, Hunter v. Bryant,

502 U.S. 224, 227 (1991). The Supreme Court has stated that

“[u]nless the plaintiff’s allegations state a claim of violation of

clearly established law, a defendant pleading qualified immunity

is entitled to dismissal before the commencement of discovery.” 

Behrens v. Pelletier, 516 U.S. 299, 306 (1996) (internal
20

quotation marks and citations omitted). Moreover, the Supreme

Court has made denials of qualified immunity at the dismissal

stage immediately appealable. Mitchell v. Forsyth, 472 U.S.

511, 530 (1985).

 

On the other hand, the simplified notice pleading standard

requires a complaint to plead only a “short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed.

R. Civ. P. 8(a). A complaint fashioned under a simplified notice

pleading standard often fails to provide sufficient factual

information for the defendant to frame a proper qualified

immunity defense. For the same reason, the district court is

oftentimes hard-pressed to conduct a fact-specific qualified

immunity analysis at an early stage in the litigation.

 

This case, perhaps better than any other, illustrates the

incompatibility between the concept of notice pleading and the

qualified immunity doctrine, and the resulting quandary faced by

defendants pleading the defense. Here, plaintiffs have crafted a

complaint lacking in detailed factual allegations. While the

complaint complies with the simplified notice pleading standard

of the Federal Rules, which itself is a close call, it clearly does

not provide good fodder for the framing of a qualified immunity

defense. The District Court, in turn, was unable to engage in a

meaningful fact-specific qualified immunity analysis, and,

therefore, denied qualified immunity “without prejudice to

[defendants’] right to raise their arguments again, under Federal

Rule of Civil Procedure 56, after the factual record was more

fully developed.” (App. at 9.) As a result, the Individual

Defendants who may be immune from suit must engage in

discovery and succumb to the other burdens of litigation, all the

while forgoing the very protections afforded by qualified

immunity.

Unsurprisingly, plaintiffs insist that their complaint is

amenable to a qualified immunity analysis. They posit that it is

clearly established that it is unlawful to harass and intimidate a

person based upon his or her race; to conduct searches and

seizures of a person without a warrant or probable cause; and to

use excessive force against a person in an effort to harass and

intimidate. (Response Brief 7-10.) However, these are the kinds
21

of broad propositions of law that cannot guide a court in

determining whether a constitutional right is clearly established. 

If such broad propositions of law were sufficient for purposes of

the qualified immunity analysis, “[p]laintiffs would be able to

convert the rule of qualified immunity that our cases plainly

establish into a rule of virtually unqualified liability simply by

alleging violation of extremely abstract rights.” Anderson v.

Creighton, 483 U.S. 635, 639 (1987). Moreover, “Harlow

would be transformed from a guarantee of immunity into a rule

of pleading.” Id.

In Saucier, the Supreme Court explained that the

qualified immunity inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposition. .

. .” 533 U.S. at 201. Illustrating the level of specificity with

which the constitutional right must be defined, the Saucier Court

observed that “the general proposition that use of force is

contrary to the Fourth Amendment if it is excessive under

objective standards of reasonableness . . . is not enough.” Id. at

201-02. Rather, said the Court, “[t]he relevant, dispositive

inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Id.

We do not doubt that plaintiffs’ allegations support a

violation of extremely abstract constitutional rights. As the

District Court stated, “a reasonable official would know that

directing or permitting the police to harass a citizen because of

his race or ethnicity, through unjustified warrantless searches,

intimidation, or otherwise, or participating in a conspiracy to do

so, would violate an individual’s constitutional rights.” (App. at

12.) However, when the qualified immunity inquiry is framed at

that level of abstraction, the defense fails in its purpose to protect

government officials who are immune from the burdens of

discovery. Given the Supreme Court’s guidance in Saucier and

Anderson, we decline to sanction such a result.

2.

In order to provide government officials the protections

afforded by qualified immunity, a district court must avail itself

of the procedures available under the Federal Rules to facilitate
22

an early resolution of the qualified immunity issue. As the

Supreme Court has admonished, albeit in the context of

unconstitutional-motive cases against public officials, “the trial

court must exercise its discretion in a way that protects the

substance of the qualified immunity defense. . . so that officials

are not subjected to unnecessary and burdensome discovery or

trial proceedings.” Crawford-El, 523 U.S. at 597-98. “‘[A] firm

application of the Federal Rules of Civil Procedure’ is fully

warranted” and may lead to the prompt resolution of

insubstantial claims. Harlow, 457 U.S. at 820 n.35 (quoting

Butz v. Economou, 438 U.S. 478, 508 (1978)). 

When presented with a complaint that does not lend itself

to an early resolution of the qualified immunity issue, a district

court has several options. First, a district court may order the

plaintiff to reply to the defendant’s answer pleading qualified

immunity. Crawford-El, 523 U.S. at 598. Second, a district

court may grant a defense motion for a more definite statement

under Rule 12(e) with respect to the conduct of which the

plaintiff complains. Id. The district court should avail itself of

these options before addressing the immunity question, which

sometimes requires complicated analysis of legal issues. Id. If

the plaintiff’s action survives these hurdles, the plaintiff

ordinarily will be entitled to some discovery, but the district

court may limit the timing, sequence, frequency, and extent of

that discovery under Rule 26. Id. at 598-99. Beyond these

procedural tools, summary judgment remains a useful tool for

precluding insubstantial claims from proceeding to trial. Id. at

600.

The simplified notice pleading rule is made possible by

these “pretrial procedures established by the Rules to disclose

more precisely the basis of both claim and defense and to define

more narrowly the disputed facts and issues.” Conley v. Gibson,

355 U.S. 41, 47-48 & n.9 (1957). Thus, we charge the district

court with the task of utilizing these procedures to protect the

substance of the qualified immunity defense. In this regard, we

note that the district court has broad discretion to utilize these

procedures in a manner that is useful and equitable to the parties. 

See Crawford-El, 523 U.S. at 600-01.
23

We wish to highlight the particular usefulness of the Rule

12(e) motion for a more definite statement. Under Rule 12(e), a

defendant may move for a more definite statement “[i]f a

pleading . . . is so vague or ambiguous that a party cannot

reasonably be required to frame a responsive pleading.” Fed. R.

Civ. P. 12(e). The Rule 12(e) “motion shall point out the defects

complained of and the details desired.” Id. When a complaint

fashioned under a notice pleading standard does not disclose the

facts underlying a plaintiff’s claim for relief, the defendant

cannot reasonably be expected to frame a proper, fact-specific

qualified immunity defense. In turn, the district court cannot

conduct the kind of fact-specific inquiry contemplated in

Saucier. The Rule 12(e) motion for a more definite statement is

perhaps the best procedural tool available to the defendant to

obtain the factual basis underlying a plaintiff’s claim for relief. 

A defendant who makes a motion for a more definite

statement under Rule 12(e) may join that motion with a Rule

12(b) motion to dismiss asserting the qualified immunity

defense, which should be held in abeyance during the pendency

of the Rule 12(e) motion. Fed. R. Civ. P. 12(g) (“A party who

makes a motion under this rule may join with it any other

motions herein provided for and then available to the party.”). 

When presented with an appropriate Rule 12(e) motion for a

more definite statement, the district court shall grant the motion

and demand more specific factual allegations from the plaintiff

concerning the conduct underlying the claims for relief. Even

when a defendant has not formally expressed the need for a

definite statement, the district court has the discretion to order a

more definite statement, in observance of the Supreme Court’s

mandate to facilitate an early resolution of the qualified

immunity issue and in order to avoid a waste of judicial

resources. See Crawford-El, 523 U.S. at 600-01 (recognizing

the district court’s broad discretion to utilize civil procedures in

a manner that is useful and equitable to the parties); see also

Fed. R. Civ. P. 1 (“The[] [rules] shall be construed and

administered to secure the just, speedy, and inexpensive

determination of every action.”).

 

If the plaintiff provides a more definite statement in

compliance with the district court’s order, the defendant may,
24

upon leave of court, supplement the Rule 12(b)(6) motion to

dismiss by framing the qualified immunity argument within the

factual context of the case. Once the motion has been

supplemented, the Rule 12(b)(6) motion asserting qualified

immunity should be expeditiously briefed and considered by the

district court at the earliest possible stage in the litigation. Until

the Rule 12(b)(6) motion is resolved, all discovery must be

stayed. See Harlow, 457 U.S. at 818. Of course, if the plaintiff

fails to provide a more definite statement within ten days after

notice of the order or within such other time as the court may fix,

the court may strike the pleading. Fed. R. Civ. P. 12(e).

 

In this case, the Individual Defendants did not formally

move for a more definite statement, but in their Rule 12(b)

motion to dismiss they argued that “it is impossible to evaluate

whether a particular action of a particular individual defendant

violated clearly established law, since it is impossible to know,

on the basis of the Complaint, what the action is.” (App. at 58.) 

Their argument was essentially that the complaint was “so vague

or ambiguous that [they] cannot reasonably be required to frame

a responsive pleading.” Fed. R. Civ. P. 12(e). Indeed, the

District Court recognized that the essence of their argument was

an expressed need for more definite factual allegations. The

District Court observed that “the individual defendants did not

argue the substantive merits of the [qualified immunity] doctrine,

but alleged instead that they were prevented from doing so due

to the factual insufficiency of plaintiffs’ complaint.” (App. at

11.) Given the clear implication of their argument and the

unquestionable need for more specific allegations concerning the

conduct of which plaintiffs complain, we believe that the most

appropriate procedural step in this case is for the District Court

to order a more definite statement.

Accordingly, we will vacate the District Court’s order

insofar as it relates to qualified immunity and remand to the

District Court with instructions to treat the motion to dismiss as

a consolidated motion to dismiss and motion for a more definite

statement. Because plaintiffs’ complaint does not provide

sufficient factual information for the framing of a proper

qualified immunity defense, we instruct the District Court to

grant the motion for a more definite statement, although we
25

leave to the District Court’s discretion whether or not to require

the Individual Defendants to “point out the defects complained

of and the details desired.” Fed. R. Civ. P. 12(e). We further

instruct the District Court to hold the motion to dismiss in

abeyance during the resolution of the motion for a more definite

statement, and to stay all discovery pending resolution of the

motion to dismiss. Finally, if and when plaintiffs provide a more

definite statement in compliance with the District Court’s order,

we instruct the District Court to reconsider the qualified

immunity issue in light of the factual context of this case.

III.

For the foregoing reasons, the order of the District Court

entered on March 29, 2005, insofar as it relates to qualified

immunity, will be vacated, and the case remanded with the

instructions delineated above. The order, insofar as it relates to

plaintiffs’ alleged failure to state a claim, will be reversed with

respect to the claims brought under 42 U.S.C. § 1983 and § 1986

against Wendy Potts Fleegal and the claim brought under 42

U.S.C. § 1986 against Sam M. Butler, and the case remanded

with instructions to grant plaintiffs leave to amend the

complaint. In addition, the order, insofar as it relates to

plaintiffs’ alleged failure to state a claim, will be reversed with

respect to the unlawful taking claim under the Fifth and

Fourteenth Amendments to the extent that the claim is brought

against the Individual Defendants, and the case remanded with

instructions to the District Court to dismiss the claim to that

extent.