FILED

United States Court of Appeals

Tenth Circuit

March 21, 2008

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DUSTIN ROBBINS and MELISSA

GILLUM, as parents and next friends

of RENEE DAWN ROBBINS, a

deceased minor,

Plaintiffs-Appellees,

v. No. 07-7021

STATE OF OKLAHOMA, ex rel.,

DEPARTMENT OF HUMAN

SERVICES; HOWARD H.

HENDRICK; DEBORAH CROSSLIN;

NANCY VONBARGEN; LINDA

HUGHES; JOHN DOES 1 THROUGH

5; JANE DOES; CASEY FOREMAN,

in his/her capacity acting under color

of state law; CARLA BETH

MCKINNEY, an individual, d/b/a

CARLA’S DAYCARE, and/or

MCKINNEY’S DAYCARE,

Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. NO. CIV-06-364-FHS)

Richard W. Freeman, Jr., Assistant General Counsel, Department of Human

Services, Oklahoma City, Oklahoma (Joseph W. Strealy, Assistant General

Counsel, Department of Human Services, Oklahoma City, Oklahoma, with him on

the briefs), for Defendants-Appellants.
-2-

Christine Cave, Abowitz, Timberlake & Dahmke, P.C., Oklahoma City, Oklahoma

(Joe Carson, Buxton & Carson, PLLC, Oklahoma City, Oklahoma, with her on the

briefs), for Plaintiffs-Appellees.

Before McCONNELL, BALDOCK, and GORSUCH Circuit Judges.

McCONNELL, Circuit Judge.

This case arises from the tragic death of an eight month old infant, Renee

Dawn Robbins, the child of Dustin Robbins and Melissa Gillum. In 2003,

Renee’s parents sought financial assistance and other social services from the

Oklahoma Department of Human Services (“DHS”). Employees of DHS informed

Mr. Robbins and Ms. Gillum that Carla Beth McKinney operated a licensed and

privately-owned daycare center in Tahlequah, Oklahoma, where they might obtain

state subsidized care for Renee. Plaintiffs further allege that employees of DHS

“informed” them that “the McKinney Daycare was the only daycare to which

Renee could attend due to financial considerations.” Comp. ¶¶ 19 & 20 (emphasis

added). Following this consultation, Renee’s parents placed her in Ms.

McKinney’s daycare where she suffered blunt force trauma to the head resulting

in her death. The Chief Medical Examiner listed the manner of death as

homicide; the state filed criminal charges of first degree murder against Ms.

McKinney. 
-3-

Renee’s parents originally filed suit against the State of Oklahoma

Department of Human Services, five named employees of DHS in their individual

capacities, ten unnamed employees of DHS in their individual capacities, Carla

Beth McKinney, and the McKinney Daycare, in the United States District Court

for the Eastern District of Oklahoma on June 9, 2005. That case was voluntarily

dismissed by the plaintiffs on September 7, 2005. This case was filed by Mr.

Robbins and Ms. Gillum on September 7, 2006, against the same parties seeking

damages and other relief under 42 U.S.C. § 1983 for alleged violations of Renee’s

constitutional rights and various torts in connection with Renee’s death. 

The Oklahoma Department of Human Services, Howard H. Hendrick,

Nancy VonBargen, and Casey Foreman filed a motion to dismiss under Rule

12(b)(6) for failure to state a claim upon which relief can be granted. The court

granted the defendants’ motion to dismiss against DHS on the basis of sovereign

immunity, but denied the motion with respect to the individual defendants. 

Hendrick, VonBargen, and Foreman filed a motion to reconsider. The court

granted the motion with regard to the prayer for declaratory relief, but once again

denied the individual defendants’ qualified immunity claim on the prayer for

damages because the court found that “it ha[d] insufficient information,” and

therefore that some discovery was necessary to determine whether qualified

immunity shielded the defendants from suit. Robbins v. Oklahoma Dep’t of

Human Serv., No. 06-CV-367, 2007 WL 756694, *1 (E.D.Okla., March 7, 2007). 
-4-

Defendants Hendrick, VonBargen, and Foreman appeal the partial denial of

their motion to dismiss, and ask us to consider whether the plaintiffs have

adequately stated a claim on which relief may be granted and whether they are

entitled to qualified immunity. We reverse the district court’s denial of

defendants’ motion to dismiss, and instruct that the suit be dismissed for failure to

state a claim upon which relief can be granted.

I.

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must

contain “a short and plain statement of the claim showing that the pleader is

entitled to relief.” At the time when the district court denied the motion to

dismiss, this and other courts generally embraced a liberal construction of the

pleading requirement, derived from Conley v. Gibson: “a complaint should not be

dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” 355 U.S. 41, 45-46 (1957) (emphasis added); see, e.g. Kikumura v.

Osagie, 461 F.3d 1269, 1294 (10th Cir. 2006). Under this construction of Rule

8(a), a complaint containing only conclusory allegations could withstand a motion

to dismiss unless its factual impossibility was apparent from the face of the

pleadings – that is, a complaint was immune from dismissal if it left open the

possibility that a fact not alleged in the complaint could render the complaint

sufficient. Under this construction of the Rules, the district court in this case was
-5-

probably correct when it concluded that it should deny the motion to dismiss

when “it ha[d] insufficient information” to tell whether the complaint stated a

claim or not. Robbins, 2007 WL 756694 at *1.

Just two months after the district court decision, however, the Supreme

Court handed down Bell Atlantic Corp. v. Twombly, rejecting the “no set of facts”

language of Conley and announcing a new (or clarified) standard: to withstand a

motion to dismiss, a complaint must contain enough allegations of fact “to state a

claim to relief that is plausible on its face.” 127 S. Ct. 1955, 1974 (2007). Under

this revised standard, as we explained in Ridge at Red Hawk, L.L.C. v. Schneider: 

the mere metaphysical possibility that some plaintiff could prove some set

of facts in support of the pleaded claims is insufficient; the complaint must

give the court reason to believe that this plaintiff has a reasonable

likelihood of mustering factual support for these claims.

493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). The burden is on

the plaintiff to frame a “complaint with enough factual matter (taken as true) to

suggest” that he or she is entitled to relief. Twombly, 127 S. Ct. at 1965. 

“Factual allegations must be enough to raise a right to relief above the speculative

level.” Id.

We are not the first to acknowledge that the new formulation is less than

pellucid. See Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007) (referring to the

“conflicting signals” in the Twombly opinion); Phillips v. County of Allegheny,

2008 WL 305025, at *3 (3d Cir. Feb. 5, 2008) (calling the opinion “confusing”). 
-6-

As best we understand it, however, the opinion seeks to find a middle ground

between “heightened fact pleading,” which is expressly rejected, Twombly, 127 S.

Ct. at 1974; see also id. at 1964 (a complaint “does not need detailed factual

allegations”), and allowing complaints that are no more than “labels and

conclusions” or “a formulaic recitation of the elements of a cause of action,”

which the Court stated “will not do.” Id. at 1965. 

The most difficult question in interpreting Twombly is what the Court

means by “plausibility.” The Court states that the complaint must contain

“enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. 

But it reiterates the bedrock principle that a judge ruling on a motion to dismiss

must accept all allegations as true and may not dismiss on the ground that it

appears unlikely the allegations can be proven. “[A] well-pleaded complaint may

proceed even if it strikes a savvy judge that actual proof of those facts is

improbable, and ‘that a recovery is very remote and unlikely.’” Id. at 1965

(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Thus, “plausible” cannot

mean “likely to be true.” Rather, “plausibility” in this context must refer to the

scope of the allegations in a complaint: if they are so general that they encompass

a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged

their claims across the line from conceivable to plausible.” Id. at 1974. The
1

 For example in Erickson v. Pardus, decided immediately after Twombly,

the Court held that a prisoner’s pro se complaint stating that the doctor’s decision

to withhold his prescribed Hepatitis C medication was “endangering his life” and

causing “continued damage to [his] liver,” was a sufficient allegation of

substantial harm to survive a motion to dismiss. 127 S. Ct. 2197, 2199 (2007).

Although the allegations made by the petitioner were general, they were not

overly broad. If proven, such harm would in all likelihood be sufficiently

substantial to provide a basis for relief, and therefore, that aspect of the complaint

crosses the line between “possibility and plausibility.” Twombly at 1966.

-7-

allegations must be enough that, if assumed to be true, the plaintiff plausibly (not

just speculatively) has a claim for relief.1

 

This requirement of plausibility serves not only to weed out claims that do

not (in the absence of additional allegations) have a reasonable prospect of

success, but also to inform the defendants of the actual grounds of the claim

against them. “Without some factual allegation in the complaint, it is hard to see

how a claimant could satisfy the requirement of providing not only ‘fair notice’ of

the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. at 1965

n.3. See Airborne Beepers & Video, Inc. v. AT&T Mobility L.L.C., 499 F.3d 663,

667 (7th Cir. 2007) (“[A]t some point the factual detail in a complaint may be so

sketchy that the complaint does not provide the type of notice of the claim to

which the defendant is entitled under Rule 8.”). The Twombly Court was

particularly critical of complaints that “mentioned no specific time, place, or

person involved in the alleged conspiracies.” 127 S. Ct. at 1971 n.10. Given

such a complaint, “a defendant seeking to respond to plaintiffs’ conclusory

allegations . . . would have little idea where to begin.” Id.
-8-

II.

The Third Circuit has noted, and we agree, that the degree of specificity

necessary to establish plausibility and fair notice, and therefore the need to

include sufficient factual allegations, depends on context: “Context matters in

notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case. . . .” 

Phillips, 2008 WL 305025, at *4. A simple negligence action based on an

automobile accident may require little more than the allegation that the defendant

negligently struck the plaintiff with his car while crossing a particular highway on

a specified date and time. See Form 9, Complaint for Negligence, Forms App.,

Fed. Rules Civ. Pro., 28 U.S.C. App., p. 829 (discussed in Twombly, 127 S. Ct. at

1970–71 n.10). The complaint in Twombly was inadequate because the plaintiff

failed to plead any facts to show “contract, combination . . . or conspiracy, in

restraint of trade” beyond a bare allegation of parallel conduct that could be

explained as identical but independent action. Sherman Act § 1, 15 U.S.C. § 1. 

Given that the complaint encompassed scenarios under which the defendants

conspired to engage in parallel conduct and those in which they did not, the Court

found that the likelihood that the plaintiff would be entitled to relief, even if all

of the allegations were true, fell short. To allow such a complaint to proceed

would impose the cost of discovery on the defendants for no plausible basis. “[I]t

is only by taking care to require allegations that reach the level suggesting

conspiracy that we can hope to avoid the potentially enormous expense of
-9-

discovery in cases with no ‘reasonably founded hope that the [discovery] process

will reveal relevant evidence’ to support a § 1 claim.” Twombly, 127 S. Ct. at

1967 (brackets in original) (quoting Dura Pharm., Inc. v. Broudo, 544 U.S. 336,

347 (2005)) (further internal citations omitted).

The context of this case is a claim of qualified immunity by state officials

or employees who were sued for damages in their personal capacity for injuries to

a child inflicted by a third party. Qualified immunity exists “to protect public

officials from the ‘broad-ranging discovery’ that can be ‘peculiarly disruptive of

effective government.’ ” Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982)). Defendants are

permitted to appeal from the denial of a motion to dismiss on qualified immunity

grounds precisely to spare them the ordeal of discovery if the complaint fails to

allege a constitutional violation or if the alleged violation was not clearly

established. Behrens v. Pelletier, 516 U.S. 299, 306 (1996). To “nudge their

claims across the line from conceivable to plausible,” Twombly, 127 S. Ct. at

1974, in this context, plaintiffs must allege facts sufficient to show (assuming

they are true) that the defendants plausibly violated their constitutional rights, and

that those rights were clearly established at the time. This requires enough

allegations to give the defendants notice of the theory under which their claim is

made.
2

In addition, we note that a trial court is under an obligation to “exercise its

discretion in a way that protects the substance of the qualified immunity defense.” 

Crawford-El, 523 U.S. at 597. Trial courts are equipped with means, such as

ordering a reply to defendant’s answer under Rule 7(a) or granting defendant’s

motion for a more definite statement under Rule 12(e), to “insist that the plaintiff

put forward specific, nonconclusory factual allegations,” id. at 598, to assist the

court in determining whether qualified immunity ought to be imposed at this

earliest possible stage or whether the complaint is sufficiently plausible that it

(continued...)

-10-

This does not mean that complaints in cases subject to qualified immunity

defenses must include “all the factual allegations necessary to sustain a

conclusion that defendant violated clearly established law.” Breidenbach v.

Bolish, 126 F.3d 1288, 1293 (10th Cir. 1997). In Currier we found this

heightened pleading standard superceded by the Court’s decision in Crawford-El

v. Britton, 523 U.S. 574 (1998). Currier v. Doran, 242 F.3d 905, 916 (10th Cir.

2001). Twombly, too, rejects a heightened pleading standard. 127 S. Ct. at 1973-

74. However, the complaint must meet the minimal standard of notice pleading as

articulated by the Court in Twombly. Although we apply “the same standard in

evaluating dismissals in qualified immunity cases as to dismissals generally,”

Shero v. City of Grove, Okl., 510 F.3d 1196, 1200 (10th Cir. 2007), complaints in

§ 1983 cases against individual government actors pose a greater likelihood of

failures in notice and plausibility because they typically include complex claims

against multiple defendants. The Twombly standard may have greater bite in such

contexts, appropriately reflecting the special interest in resolving the affirmative

defense of qualified immunity “at the earliest possible stage of a litigation.”2
2

(...continued)

merits imposition of the burdens of discovery on state actors.

-11-

Anderson, 483 U.S. at 646 n.6; Harlow, 457 U.S. at 818. Without allegations

sufficient to make clear the “grounds” on which the plaintiff is entitled to relief, 

Twombly, 127 S. Ct. at 1965 n.3, it would be impossible for the court to perform

its function of determining, at an early stage in the litigation, whether the asserted

claim is clearly established.

A. Danger Creation

Count I of Mr. Robbins’ and Ms. Gillum’s complaint, requesting damages

for violations of Renee’s due process rights, is inadequate both for failure to

provide fair notice and because, even if we take all well-pleaded facts in the

complaint as true, the plaintiffs have failed to present a plausible right to relief. 

We reiterate that “[c]ontext matters in notice pleading. Fair notice under Rule

8(a)(2) depends on the type of case.” Phillips, 2008 WL 305025, at *12. In §

1983 cases, defendants often include the government agency and a number of

government actors sued in their individual capacities. Therefore it is particularly

important in such circumstances that the complaint make clear exactly who is

alleged to have done what to whom, to provide each individual with fair notice as

to the basis of the claims against him or her, as distinguished from collective

allegations against the state. See Twombly, 127 S. Ct. at 1970-71 n.10.
-12-

Count I of Mr. Robbins’ and Ms. Gillum’s complaint fails to isolate the

allegedly unconstitutional acts of each defendant, and thereby does not provide

adequate notice as to the nature of the claims against each. For example,

paragraph 28 of the complaint alleges that “Defendants” . . . “instruct[ed] the

Plaintiffs to place Renee Dawn Robbins in a specific Daycare”; “Defendants” . . .

“assert[ed] control over such Daycare”; and “Defendants” . . . failed to “protect

and supervise the child . . . .” The three defendants named in this appeal are

Howard H. Hendrick, the Director of DHS for the State of Oklahoma; Nancy

Vonbargen, a local DHS social worker; and Casey Foreman, another local DHS

social worker. Other defendants named in the complaint include Ms. McKinney,

two additional named DHS social workers, and ten other unnamed DHS social

workers or supervisors. Presumably, the allegedly tortious acts committed by Mr.

Hendrick as the Director of DHS, Ms. McKinney as the private owner and

operator of the daycare where Renee was killed, and the individual social workers

in Tahlequah, are entirely different in character and therefore are mistakenly

grouped in a single allegation. The complaint makes no mention of which if any

of these defendants had direct contact with Renee and her parents, and for those

defendants who had no direct contact, how they might be individually liable for

deprivations of Renee’s constitutional rights. 

We need not speculate, because the burden rests on the plaintiffs to provide

fair notice of the grounds for the claims made against each of the defendants. 
-13-

Given the complaint’s use of either the collective term “Defendants” or a list of

the defendants named individually but with no distinction as to what acts are

attributable to whom, it is impossible for any of these individuals to ascertain

what particular unconstitutional acts they are alleged to have committed. See

Atuahene v. City of Hartford, 10 F. App’x 33, 34 (2d Cir., May 31, 2001)

(granting a motion to dismiss for failure to provide fair notice under Rule 8 in

part because “[t]he complaint failed to differentiate among the defendants,

alleging instead violations by ‘the defendants’”); Median v. Bauer, 2004 WL

136636, *6 (S.D.N.Y., Jan. 27, 2004); Lane v. Capital Acquisitions and Mgmt.

Co., 2006 WL 4590705, *5 (S.D.Fla., April 14, 2006). 

In addition to the failure of Count I to satisfy the standard of fair notice

required by Rule 8, the plaintiffs do not allege facts sufficient to render their

claim plausible. Setting aside the numerous conclusory allegations, plaintiffs

allege that defendants (we cannot discern which ones): “instructed Plaintiffs to

place Renee Dawn Robbins in a specific Daycare”; “informed Melissa that the

McKinney Daycare was the only Daycare to which Renee could attend due to

financial considerations”; “were or should have been aware of the past nature of

McKinney’s personal background”; “knew that Dustin Robbins and Melissa

Gillum were relying upon DHS to provide them with a safe environment for

Renee”; “fail[ed] to take steps to ensure that Renee was placed in a safe

environment”; “lulled the Plaintiffs into a false sense of security about Renee’s
-14-

welfare”; “failed to correct the misimpressions that the DHS generated report of

available Daycare facilities engendered”; and “continued to place children in [Ms.

McKinney’s] custody . . . instead of revoking [her] license.” Comp. ¶¶ 19–21, 23,

30.

Plaintiffs claim that these factual allegations, if taken as true, show a

violation of Renee’s due process rights under a theory of “danger creation.” In

general, state actors may only be held liable under § 1983 for their own acts, not

the acts of third parties. DeShaney v. Winnebago County of Dep’t of Social

Services, 489 U.S. 189, 197 (1989). The “danger creation” exception to this rule

applies only when “a state actor affirmatively acts to create, or increases a

plaintiff’s vulnerability to, or danger from private violence.” Currier v. Doran,

242 F.3d 905, 923 (10th Cir. 2001). To state a prima facie case, the plaintiff must

show that (1) state actors created the danger or increased the plaintiff’s

vulnerability to the danger in some way, (2) the plaintiff was a member of a

limited and specifically definable group, (3) the defendants’ conduct put the

plaintiff at substantial risk of serious, immediate, and proximate harm, (4) the risk

was obvious or known, (5) the defendants acted recklessly in conscious disregard

of that risk, and (6) the conduct, when viewed in total, shocks the conscience. 

Ruiz v. McDonnell, 299 F.3d 1173, 1182–83 (10th Cir. 2002). 

DeShaney holds that the state has no affirmative obligation under the Due

Process Clause to protect “the interests of life, liberty, and property of its citizens
-15-

against invasion by private actors.” 489 U.S. at 195. Therefore, the defendants

cannot be held liable for their failure to protect Renee from harm, absent some

prior affirmative act that incurred a duty to protect. Graham v. Indep. School

Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994) (“Inaction by the state, in the

face of a known danger is not enough to trigger . . . an affirmative duty to

protect.”). The mere “fail[ure] to take steps to ensure that Renee was placed in a

safe environment” is insufficient as a matter of law to result in liability. Comp. ¶

21. That defendants provided Renee’s parents with a computer generated list of

licensed daycare providers in the locality is also insufficient to impose liability,

because Renee’s parents retained legal custody of Renee and exercised their

independent choice in opting to place Renee in subsidized daycare. Plaintiffs’

only claims that may escape the sweep of DeShaney are: (1) that the defendants

are liable for danger creation for continuing to license Ms. McKinney’s facility,

leading to her inclusion as a licensed provider on the computer generated list

provided to Renee’s parents; and (2) that defendants provided affirmative

representations and assurances as to the quality of care that Renee would receive

at the McKinney Daycare. 

 We refused to impose liability for danger creation on the basis of

negligence in licensing in Ruiz v. McDonnell, 299 F.3d 1173, 1183 (10th Cir.

2002). In Ruiz, we determined that negligence in licensing was not a sufficiently

affirmative act under the standard set by DeShaney because it did not pose an
-16-

immediate threat of harm and was directed at the public in general, rather than the

defendants specifically. The same reasoning applies here, because the failure of

DHS and its employees to revoke Ms. McKinney’s license, even if they had the

authority to do so, would be directed at the public in general rather than at Mr.

Robbins, Ms. Gillum, and Renee specifically. Id. Furthermore, there is no

allegation in the complaint that the named DHS employees were responsible for

licensing either at the time Ms. McKinney’s facility was originally licensed, or

now. Plaintiffs therefore may not bring a claim of danger creation based on the

state’s failure to revoke Ms. McKinney’s license. 

The plaintiffs attempt to distinguish these circumstances from those

presented in Ruiz, claiming that the provision of a list of one subsidized daycare

service to Renee’s parents was an affirmative act directed specifically towards the

plaintiffs sufficient to impose a duty to protect because the list withdrew the

element of choice from Mr. Robbins’ and Ms. Gillum’s decision to place Renee

with Ms. McKinney. First, we note that if we were to accept this theory, every

claim for the violation of due process rights of a child receiving subsidized

daycare in a county that offered only one such daycare would advance to the

summary judgment stage. Furthermore, plaintiffs do not allege sufficient facts to

render their claim plausible. Plaintiffs do not allege that the list omitted other

local subsidized daycare centers, or was otherwise inaccurate, and make no

specific allegations aside from the original licensing of the McKinney Daycare
-17-

and the provision of an accurate list of local subsidized daycare centers to

Renee’s parents, that could qualify as an affirmative act under the “danger

creation” doctrine. Given that the preponderance of imaginable circumstances

encompassed by the complaint would be subject to the Ruiz bar to liability

because the only affirmative act alleged is a negligent licensing decision, this

claim fails to satisfy the Twombly plausibility standard absent specific factual

allegations of additional affirmative acts by the individual defendants. Because

we have no duty to “conjure up unpleaded facts that might turn a frivolous claim .

. . into a substantial one,” O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir.

1976), we find no basis for holding the defendants liable for the unfortunate fact

that in this circumstance, there were no good choices for Renee and her parents.

The complaint also alleges that the employees of DHS “lulled the Plaintiffs

into a false sense of security about Renee’s welfare” and “did nothing to correct

the misimpressions that the DHS generated report of available Daycare facilities

engendered,” Comp. ¶ 23, thereby inducing Renee’s parents to place her with Ms.

McKinney and resulting in her exposure to danger. The Ninth Circuit, in L.W. v.

Grubbs, 974 F.2d 119 (9th Cir. 1992), imposed liability for danger creation when

the state as employer misrepresented to a nurse employed in a state correctional

facility that she would not work with violent sex offenders. We too have

supposed, in dicta, that if the state “affirmatively misleads an employee of the

substantial risks in the workplace, that action may give rise to § 1983 liability.” 
-18-

Uhlrig v. Harder, 64 F.3d 567, 575 (10th Cir. 1995). However, we need not

decide here whether to extend the “danger creation” theory to misrepresentations

made outside of the context of the state as employer, because the plaintiffs do not

allege that defendants made any affirmative statements regarding the quality of

the McKinney Daycare. The allegations of “lulling” and “doing nothing” do not

give rise to a reasonable expectation of relief, given that DeShaney requires an

affirmative act before imposing liability. Therefore, although we might imagine

affirmative acts that could be described as “lulling,” without more specificity,

plaintiffs “have not nudged their claims across the line from conceivable to

plausible. . . .” Twombly, 127 S. Ct. at 1974.

Because we find that the plaintiffs failed to state a claim for violation of

Renee’s due process rights on which relief can be granted, we likewise find that

the plaintiffs have failed to adequately plead supervisory liability. We also add

that Count III of the complaint pertaining to supervisory liability contains almost

no allegations that are neither conclusory nor vacuous. Once again the defendants

are left without notice as to what particular actions are alleged as grounds for

their liability as supervisors who approved, authorized, or ratified

unconstitutional action by their inferiors. 

 B. Equal Protection

 Plaintiffs’ final claim in Count IV of the complaint alleges a violation of

Renee’s rights under the Equal Protection Clause:
-19-

Defendants Hendrick and/or Crosslin and/or Vonbargen and/or

Hughes and/or Foreman and/or John Does 1 through 5 and/or Jane

Does 1 through 5 treated the Plaintiff, Renee Dawn Robbins

differently from similarly situated children on the basis of the

financial ability and ethnicity of the Plaintiff and her mother and

father, or at least without any rational basis. Specifically, said

Defendants disregarded or discounted McKinney’s alleged abuse and

neglect of prior children on the ground that her behavior was not

severe enough to warrant concern and fully acceptable within Native

American families, and that the concerns expressed by other

observers flowed from “cultural biases” and “ethnocentric

viewpoints.” Had said Defendants applied race-neutral and

economically neutral standards to the social work performed in the

Plaintiffs household, Defendants reports [sic] would have objectively

identified the serious and imminent dangers facing the child — and,

as a result, other interested observers would have taken appropriate

measures to protect the child. Instead, the differential treatment the

child received from said Defendants enabled Carla Beth McKinney to

exercise complete dominion over Plaintiff Renee Dawn Robbins, and

ultimately to inflict serious injury and death upon her.

Comp. ¶ 52. Again, this section of the complaint fails to differentiate among

individual defendants and specify which defendants are alleged to have taken

which particular actions. However, the more serious notice problem arises

because the plaintiffs’ open-ended allegations provide no suggestion as to what

the grounds for an equal protection violation might be: whether Ms. McKinney is

alleged to have treated Native American children in her care differently from

other children; whether DHS is alleged to have refused to investigate complaints

against Ms. McKinney because her clientele were all or mostly Native American;

whether DHS is alleged to have treated Native American children differently by

placing them with Ms. McKinney, a known child abuser; or some other
-20-

imaginable set of facts. To make matters worse, none of these possible

interpretations comfortably comport with the allegation that the defendants

“treated the Plaintiff, Renee Dawn Robbins differently from similarly situated

children,” Comp. ¶ 52, given that there is no explanation of the characteristics of

these similarly situated children and how they were allegedly treated differently

than Renee. 

To cure the notice and plausibility problems with their equal protection

claim, plaintiffs must provide additional facts to show their grounds for relief. As

it stands, the complaint encompasses a broad range of imaginable circumstances,

only some of which, if any, would entitle the plaintiffs to relief and therefore,

“stops short of the line between possibility and plausibility of entitlement to

relief.” Twombly, 127 S. Ct. at 1966. 

III.

We REVERSE the judgment of the district court, and REMAND with

instructions to DISMISS the complaint without prejudice for failure to state a

claim on which relief can be granted.