FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 OCTOBER 21, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-14387

________________________

D. C. Docket No. 03-00011-CV-AR-S

TERRY LEE PASSMORE SWANN, 

as Administrator of the Estate of

Merri Elizabeth Passmore,

Plaintiff-Appellant,

versus

SOUTHERN HEALTH PARTNERS, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

( October 21, 2004 )

Before BIRCH, BARKETT and COX, Circuit Judges.

COX, Circuit Judge:

The Plaintiff, Terry Lee Passmore Swann (“Swann”), executor of the estate of

Merri Elizabeth Passmore, appeals the district court’s judgment for the Defendant,
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Southern Health Partners, Inc. (“SHP”). The court granted the Defendant’s motion

to dismiss the Plaintiff’s second amended complaint for failure to satisfy the

heightened pleading standard applicable to claims brought under 42 U.S.C. § 1983

(1988). Because we conclude that the heightened pleading standard is not applicable

in a § 1983 action against a non-governmental entity that cannot raise qualified

immunity as a defense, we reverse and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

The facts alleged in the complaint may be summarized as follows. Merri

Elizabeth Passmore (“decedent”) was incarcerated at the Blount County Detention

Center from January 3, 2001, until January 9, 2001. SHP, a private corporation, had

contracted with the Sheriff of Blount County and/or Blount County to provide

medical care to inmates at the Blount County Detention Center. While incarcerated,

the decedent repeatedly reported to SHP’s employees at the detention center that she

had not urinated in several days, but was not given a urine test until January 7, 2001.

SHP staff received the results of decedent’s test on January 8, 2001, acknowledging

that she had an infection, but decedent was still not treated. On January 9, decedent

became disoriented and was released on a recognizance bond and sent to the

emergency room at the Blount County Medical Center. The decedent was transferred
 Plaintiff’s initial complaint asserted claims against Larry E. Stanton in his official capacity 1

only. Plaintiff amended the complaint in order to name Stanton in his individual capacity only.

Thereafter, the district court granted Stanton’s motion to dismiss, finding that he was entitled to

qualified immunity.

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to Medical Center East in Birmingham, Alabama, where she went into a coma and

died on January 25, 2001, due to acute renal failure.

Swann filed an action in the district court asserting claims under 42 U.S.C. §

1983. In his initial complaint, Swann named as defendants SHP, Georgette Denny,

BlountCounty Sheriff LarryE. Stanton, and a medical doctor identified as L. Gewin.1

The district court granted SHP’s motion to dismiss the Plaintiff’s first amended

complaint for failure to comply with the Eleventh Circuit’s heightened pleading

standard applicable to actions brought under § 1983. The court gave the Plaintiff the

opportunity to file another complaint within ten days of the court’s order, providing

the Plaintiff with another chance to “comply[] with the higher pleading standards

enunciated in Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th Cir. 1992), and

alleg[e] facts reflecting deliberate indifference and reaching the level of a

constitutional violation.” (R.1-22 at 1.) The Plaintiff then filed a second amended

complaint naming SHP as the only defendant. 
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The district court determined that “[a]lthough the concept of qualified

immunity is not available to Southern Health, as a defense, Southern Health is the

beneficiary of the heightened pleading standard applicable to all claims brought under

42 U.S.C. § 1983.” (R.1-31 at 1.) The court concluded that the Plaintiff’s second

amended complaint did not meet this standard, granted SHP’s motion to dismiss the

Plaintiff’s second amended complaint, and entered judgment for the Defendant.

II. ISSUE ON APPEAL AND STANDARD OF REVIEW

The sole issue on appeal is whether the district court erred in applying a

heightened pleading standard to a § 1983 action against a private entity that could not

assert qualified immunity as a defense. We review de novo a district court’s

dismissal under Rule 12(b)(6) for failure to state a claim, accepting the allegations in

the complaint as true and construing them in the light most favorable to the plaintiff.

Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

III. DISCUSSION

Appellant contends that the United States Supreme Court’s decision in

Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.

163, 113 S. Ct. 1160 (1993), prohibits the application of a heightened pleading

standard to § 1983 actions against private entities, like SHP, who cannot raise

qualified immunity as a defense. Under Federal Rule of Civil Procedure 8(a)(2), a
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complaint only need contain “a short and plain statement of the claim showing that

the pleader is entitled to relief.” In Leatherman, the Supreme Court held that a court

may not apply a heightened pleading standard more stringent than the usual pleading

requirements of Rule 8 in civil rights cases alleging municipal liability under § 1983.

507 U.S. at 164, 113 S. Ct. at 1161. The Court rejected respondent’s argument that

a municipality should enjoy the same heightened pleading standard granted

government officials protected from suit by qualified immunity. The Court

acknowledged that municipalities are afforded certain protections from liability – a

municipality cannot be held liable on a respondeat superior theory but only where a

municipal policy or custom caused the constitutional injury. 507 U.S. at 166, 113 S.

Ct. at 1162. However, protection from liability does not encompass immunity from

suit. Where a § 1983 claim is asserted against a municipality, only the liberal

pleading standards of Rule 8(a)(2) apply. 507 U.S. at 168, 113 S. Ct. at 1163.

Prior to Leatherman, this circuit recognized a heightened pleading standard

broadly applicable in § 1983 actions. In Oladeinde, for example, we stated that “[i]n

pleading a section 1983 action, some factual detail is necessary . . . . [T]his

heightened Rule 8 requirement – as the law of the circuit – must be applied by the

district courts . . . .” 963 F.2d at 1485; see also Arnold v. Bd. of Educ., 880 F.2d 305,

310 (11th Cir. 1989) (“Typically, Rule 8 is applied more rigidly to allegations of
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conspiracy and absolute immunity, and to claims plead against a local government

that the challenged conduct constitutes its official policy or custom.”).

Under the prior panel rule, we are bound by the holdings of earlier panels

unless and until they are clearly overruled en banc or by the Supreme Court. United

States v. Smith, 122 F.3d 1355, 1359 (11th Cir. 1997). “While an intervening

decision of the Supreme Court can overrule the decision of a prior panel of our court,

the Supreme Court decision must be clearly on point.” Garrett v. Univ. of Ala. at

Birmingham Bd. of Tr., 344 F.3d 1288, 1292 (11th Cir. 2003); see also Fla. League

of Prof’l Lobbyists, Inc. v. Meggs, 87 F.3d 457, 462 (11th Cir. 1996) (“[W]e are not

at liberty to disregard binding case law that is so closely on point and has been only

weakened, rather than directly overruled, by the Supreme Court.”). Thus, we have

no authority to overturn the Oladeinde and Arnold line of cases unless Leatherman

overturned them. 

We now address for the fist time the impact of Leatherman on the law of this

circuit. While Oladeinde and Arnold do suggest a broad application of a heightened

pleading standard in all § 1983 cases, we agree with the Appellant that those cases

were effectively overturned by the Leatherman Court. Leatherman made it clear that

any heightened pleading requirements in § 1983 actions against entities that cannot

raise qualified immunity as a defense are improper. While municipalities are
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protected from liability to some extent, they enjoy no immunity from suit. The same

reasoning is applicable in § 1983 suits against non-governmental entities not entitled

to qualified immunity. See Wyatt v. Cole, 504 U.S. 158, 167-69, 112 S. Ct. 1827,

1833-34 (11th Cir. 1992); Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997)

(“When a private entity . . . contracts with a county to provide medical services to

inmates, it performs a function traditionally within the exclusive prerogative of the

state. In so doing, it becomes the functional equivalent of the municipality.” (citations

omitted)). The parties agree that as a private entity, SHP is not entitled to assert a

qualified immunity defense. Therefore, under Leatherman, because SHP cannot raise

qualified immunity as a defense, the Plaintiff need not satisfy any heightened

pleading requirements when asserting § 1983 claims against it.

Appellee contends, however, that cases handed down by this court subsequent

to Leatherman have continued to recognize a heightened pleading requirement in §

1983 actions applicable in cases involving not only individual defendants, but also

entities unable to assert qualified immunity as a defense. If that were the case, we

would be bound by the prior panel rule to continue to recognize a broadly applicable

heightened pleading standard in § 1983 actions. Any such holding could only be

corrected by the en banc court or the Supreme Court. Smith, 122 F.3d at 1359. But,

the prior panel rule does not extend to dicta. Tagle v. Regan, 643 F.2d 1058, 1064
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(5th Cir. 1981); see also Great Lakes Dredge & Dock Co. v. Miller, 957 F.2d 1575,

1578 (11th Cir. 1992) (dicta “is neither the law of the case nor binding precedent”).

As discussed below, we find nothing in our post-Leatherman precedent, other than

dicta, acknowledging a heightened pleading standard in a § 1983 action against a

non-immune defendant.

We recognize that some of our decisions subsequent to Leatherman were

misleading. In GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359 (11th

Cir. 1998), for example, the court stated:

[T]his circuit, along with others, has tightened the application of Rule

8 with respect to § 1983 cases in an effort to weed out nonmeritorious

claims, requiring that a § 1983 plaintiff allege with some specificity the

facts which make out its claim. Some factual detail in the pleadings is

necessary to the adjudication of § 1983 claims. This is particularly true

in cases involving qualified immunity, where we must determine

whether a defendant’s actions violated a clearly established right. 

132 F3d. at 1367 (emphasis added) (citations omitted). GJR involved four Escambia

County officials’ challenge of a district court order denying their motions to dismiss

the plaintiff’s § 1983 claims against them on qualified immunity grounds. Id. at

1361-64. While Escambia County, an entity not entitled to qualified immunity, had

been a party in the original action in the district court, it was not a party to the appeal.

Id. at 1361 n.1. So, the effect of Leatherman on our precedent was not, and could not

have been, an issue on appeal. Though the language quoted above suggests that the
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heightened pleading standard applicable in § 1983 actions is not limited to cases

involving qualified immunity, any such suggestion was dicta. GJR only addressed

the narrow question of whether the four individual defendants were improperly

denied qualified immunity. Id. at 1365.

The other post-Leatherman decisions cited by the Appellee are similarly

limited qualified immunity decisions involving only individual defendants. See, e.g.,

Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003) (determining whether three

individual defendants were entitled to qualified immunity); Cottone v. Jenne, 326

F.3d 1352 (11th Cir. 2003) (determining whether six individual defendants were

entitled to qualified immunity); Dalrymple v. Reno, 334 F.3d 991 (11th Cir. 2003)

(determining only whether Attorney General Janet Reno was entitled to qualified

immunity). The Defendant has not called to our attention any opinion, subsequent

to Leatherman, applying a heightened pleading standard in a case involving

defendants that could not raise qualified immunity as a defense. At least two of our

post-Leatherman cases have in fact recognized that the heightened pleading standard

is only applicable in § 1983 suits against individuals to whom qualified immunity is

available. See, e.g., Laurie v. Ala. Court of Crim. Appeals, 256 F.3d 1266, 1275-76

(11th Cir. 2001) (“‘Heightened pleading is the law of this circuit’ when § 1983 claims

are asserted against government officials in theirindividual capacities.”) (citing GJR,
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132 F.3d at 1367-68); Kyle K. v. Chapman, 208 F.3d 940, 944 (11th Cir. 2000)

(recognizing “heightened pleading requirement applicable to section 1983 actions

against individual government officials”).

Under the circumstances, we are not bound by the prior panel rule to follow

dicta which has specifically been rejected by the Supreme Court. Leatherman

overturned our prior decisions to the extent that those cases required a heightened

pleading standard in § 1983 actions against entities that cannot raise qualified

immunity as a defense. Our post-Leatherman precedent does not require a different

result. 

IV. CONCLUSION

We therefore REVERSE the judgment of the district court and REMAND the

action so that the court may evaluate the sufficiency of the Plaintiff’s second amended

complaint without applying a heightened pleading standard. 

REVERSED AND REMANDED.