Starting with the complaint.

The complaint will have your jurisdictional statement (why the court can take
jurisdiction of the matter) the story leading up to the causes of action, the causes of
action, the points and authorities of the cause of action and why the court should
rule in your favor.
Subject matter jurisdiction concerns the competence or power of a court to hear a
particular kind of case. It is rarely a concern in state litigation, because a state’s law
gives its courts power to hear any sort of civil case. Subject matter jurisdiction is, in
contrast, a major concern of the federal courts, which are courts of limited
jurisdiction. Their power to hear a particular case must be (1) authorized under the
language of Article III of the Constitution and (2) authorized by a state. Most issues of
federal subject matter jurisdiction involve questions of statutory interpretation.

You must also bear in mind that litigation is like a chess match. While the complaint is
your first move, you must have subsequent moves in mind. Such tactics include filing
a prompt motion(s) for class certification, a motion for summary judgment on cases
involving little or no discovery, or pressing for a prompt initial conference and
discovery. Once you have contemplated your subsequent moves, reexamine your
complaint to make sure that it adequately supports these strategies. These strategies may
call upon you to begin drafting additional documents before the complaint is filed.
And given that a very small percentage of suits filed are ever heard by a fact-finder, the
complaint may be the plaintiffs only opportunity to tell the story.

Purposes of the Complaint

The complaint has at least five purposes:
1) to commence litigation,
2) to tell a persuasive story to a varied audience,
3) to sufficiently set forth the jurisdictional, factual, and legal bases of the case to
avoid or limit the possibility of a motion to dismiss,
4) to enhance the usefulness of the defendant’s answer to the complaint and the ability to
obtain useful information though formal and informal discovery and
5) to lay the groundwork for the resolution of the case through settlement.

Telling the Story…the preliminary statement

The complaint is the first opportunity to tell the story and to explain why the lawsuit
has been filed. It is the first document that will be seen by the judge and law clerks and
will be referred to by them repeatedly throughout the case. The complaint may also have
an audience in the defendants, opposing counsel, the public, the media, and other
observers. The complaint must therefore be logically and narratively compelling so
that, when the reader reaches the final page, he/she feels that a wrong has been
committed, that your legal claims are sound, and that the relief you are requesting is
reasonable and deserved. In addition, the complaint is your first opportunity to
present the FACTS of the case; thus, you want it to be error-free, well-written,
persuasive, and reliable.

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The best place to give a clear and concise summary (or core theory) of
your story is in the complaint’s preliminary statement. It is the legal “sound
bite” that introduces the more technical and complex matters that follow and is what
the judge and others rely most upon in understanding what your case is about. It
should be focused and written in plain language.

Drafting the preliminary statement is truly an art because, although it is neither an

argument nor a detailed rehashing of the contents of the complaint, it must be
convincing. The balance of the complaint continues to tell the story of the case.

FACTS SECTION

The “facts” section is the primary place where the story is fleshed out. As in an
affidavit, each paragraph of the factual allegations should set out a simple, objective
statement of fact. (Fed. R. Civ. P. 8(a)(1)) Every fact that is necessary to plausibly
support each of the legal claims, and the standing of the plaintiffs to advance them,
must be included. It should allege with some precision which legal requirements
have been violated, what defendants have done or have failed to do, and
what relief is sought. You should “cross check” the complaint against your litigation and
trial plan and, as you draft the complaint, have an understanding of how each
fact alleged will be proved. Thus, as both a matter of style and strategy, you should
generally avoid prefacing allegations with “upon information and belief.” If, however,
an allegation lacks evidentiary support but is “likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery,” it must be
specifically identified in the complaint. (Fed. R. Civ. P. 11(b)(3)) Once the factual
portion of the story is told, the sections on legal claims and relief should
flow as logical extensions of the facts bringing the reader along with
you.

When drafting, never merely copy allegations from another complaint

without clearly understanding whether those allegations are
appropriate in your case. Verify that the allegations comport with the current law
in your district or circuit. Ask friends or colleagues to review the complaint as a double-
check for factual clarity and legal sufficiency.

Protection against Motion to Dismiss

The complaint must be sufficient to survive a motion to dismiss. Your thorough
review of the law in the substantive area involved should reveal to you the typical
grounds for motions to dismiss and the potential weaknesses in your case. It is helpful to
imagine yourself as the associate in the opposing counsel’s firm or office assigned to
draft a motion to dismiss your case, thus providing yourself with an opportunity to
identify and address your complaint’s weaknesses before you file it.

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[A] court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief. Iqbal, 556 U.S. at 679.

To successfully assert the defense, it is the official’s obligation to show that

his conduct is sanctioned by the law, or that his conduct is such that the law
provides no guide post for his conduct, and that his conduct was reasonable
under the circumstances. Unless the official can show that a Court
decision or a statute sanctions his conduct, the defense is unavailable.

Clarity of the legal claims.

More recently, the Supreme Court found an inartful complaint sufficient and somewhat
oddly did so without citing either Iqbal or Twombly, but instead citing Swierkiewicz:
"Because this case was resolved on a motion to dismiss for failure to state a claim, the
question below was 'not whether [Skinner] will ultimately prevail' on his procedural due
process claim, but whether his complaint was sufficient to cross the federal court's
threshold. Skinner's complaint is not a model of the careful drafter's art, but under the
Federal Rules of Civil Procedure, a complaint need not pin plaintiff's claim for
relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure
generally requires only a plausible "short and plain" statement of the plaintiff's claim,
not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal
Practice & Procedure § 1219, pp. 277-278 (3d ed. 2004 and Supp. 2010)."  Skinner v.
Switzer, 131 S. Ct. 1289, 1296 (2011) (citations omitted). 

Criminal Complaint

A criminal complaint charges the person named or an unknown

person with a particular offense. A criminal complaint must state the facts
that constitute the offense and must be supported by probable cause . It
may be initiated by the victim, a police officer, the district attorney, or another
interested party. After the complaint is filed, it is presented to a magistrate, who
reviews it to determine whether sufficient cause exists to issue an arrest warrant. If
the magistrate determines that the complaint does not state sufficient probable cause, the
complaint is rejected and a warrant is not issued. In federal court, the complaint is
presented under oath (Fed. R. Crim. P. 3).

“Clearly mere legal conclusions inserted in a complaint are insufficient to state a cause
of action unless substantiated by allegations of ultimate fact. A complaint must
sufficiently allege ultimate facts which, if established by competent evidence, would
support a decree granting the relief sought.” E.g., Doyle v. Flex, 210 So. 2d 493, 494-
95 (Fla. 4th DCA 1968).

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 The Complaint must also contain sufficient allegations of causation, showing a
legal relationship between the alleged negligence and unworthiness of some injury.
As pointed out by the Court in Romans v. Warm Mineral Springs, Inc., 155 So 2d 183,
184 (Fla 2d DCA 1963), in upholding the dismissal of a Plaintiff’s Complaint.
The complaint must show a legal liability by stating the elements of a
cause of action must plead factual matter sufficient to apprize the adversary
of what he is called upon to answer so that the court may determine the legal
effect of the claim.
Civil Complaint

A civil complaint initiates a civil lawsuit by setting forth for the court
a claim for relief from damages caused, or wrongful conduct engaged in,
by the defendant. The complaint outlines all of the plaintiff's theories of relief, or
causes of action (e.g., negligence, battery, assault), and the facts supporting each cause
of action. The complaint also serves as notice to the defendant that legal action is
underway. The Federal Rules of Civil Procedure governs construction of complaints
filed in federal courts. Many state courts follow the same rules as the federal courts,
or similar rules.

In any civil action, no claim for punitive damages shall be permitted unless there
is a reasonable showing by evidence in the record or proffered by the claimant
which would provide a reasonable basis for recovery of such damages.

To properly assert a punitive damages claim, a plaintiff need only make “a reasonable
showing by evidence in the record or proffered by the claimant.” Strasser v.
Yalamanchi, 677 So. 2d 22, 23 (Fla. 4th DCA 1996); Solis v. Calvo, 689 So. 2d 366, 369,
n. 2 (Fla. 3rd DCA 1997). “If there is any evidence tending to show that punitive damages
could be properly inflicted, even if the Court be of the opinion that the preponderance of
evidence is the other way, the Court should leave the question to the jury.” Jonat
Properties, Inc. v. Gateman, 226 So. 2d 703 (Fla. 3rd DCA 1969) (emphasis added).
Prejudging the evidence is not a proper vehicle for the court’s denial of the motion to
amend.” Dolphin Cove Ass’n v. Square D. Co., 616 So. 2d 553 (Fla. 2nd DCA 1993).

Procedural law is distinguished from substantive law, which creates, defines, and
regulates the rights and duties of individuals. Federal and state constitutions, statutes,
court rules and judicial decisions form the basis for substantive civil law on matters
such as contracts, torts, and probate. Procedural law prescribes the methods by
which individuals may enforce substantive laws. The basic concern of
procedural law is the fair, orderly, efficient, and predictable application of substantive
laws. Procedural guidance can be found in court-approved rules, in
statutes, and in judicial decisions.

To win at trial in an action for damages, the plaintiff must establish by a

preponderance of the evidence that the defendant failed to act as he had a legal duty
to act toward the plaintiff and that the plaintiff suffered compensable harm as a
result. Damage actions are usually compensatory in character—that is, they attach

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monetary value to the difference between what the plaintiff’s situation is and what it
would have been if the defendant had performed a legal duty owed to the plaintiff. Courts
may on occasion also award either nominal damages, which are symbolic and do not
require proof of particular harm, or punitive damages, which are penal and may
greatly exceed the assessed amount of actual harm. While English courts usually
require the losing party to pay the victor’s attorney fees, the United States has a strong
tradition against this practice. Subject to a few exceptions, created by statute, each side
pays its own litigation costs.

Damage Claims against Cities and Counties under Section

1983

Most Section 1983 claims for damages involve suits against government employees who
have violated the Constitution, statutes, or their employer’s own stated policies.
“It is the manner of enforcement which gives Title 42 1983 its unique importance, for
enforcement is placed in the hands of the people. Each citizen acts as a private attorney
general who ‘takes on the mantel of the sovereign,’” guarding for all of us the individual
liberties enunciated in the Constitution” Frankenhauser v. Rizzo, 59 F.R.D. (1973).

The Requirement of a Custom, Policy or Practice

It is well established that allegedly unlawful actions by governmental employees
cannot be imputed to the agency, and do not give rise to agency liability under
Section 1983, because a city, county, or similar governmental agency is only liable
for the deprivation of federal rights caused by its own “custom, policy or practice.”
Monell v. New York City Department of Social Services, 436 U.S. 658, 690-91, 692
(1978). Monell establishes the principle that the government is only liable for
actions for which it is directly responsible, establishing the parameters of the
exception to the common law rule that government should be immune from suit.

No Governmental “Respondeat Superior” Liability

The fact that the state actor was a government employee acting within the scope of his or
her employment does not make the government liable for all actions of the employee.
Monell clearly rejected respondeat superior liability for government agencies, reasoning
that “the touchstone of the § 1983 action against a government body is an allegation that
official policy is responsible for a deprivation.” Id. at 690. See also Los Angeles County
v. Humphries, 131 S. Ct. 447, 452 (2010). It further held that a governmental “strict
liability” rule would run counter to the statutory intent that the agency can be held
accountable only when official policy is to blame. Hence, the government entity – as
opposed to the individual government employee or agent – is liable only for acts of its
employee or agent that stem from a “custom, policy or practice” of the entity, and not
from an individual aberration or isolated act, even one committed “under color of law.”
“The policy or practice, moreover, must be that of the entity sued. If the local agency is
carrying out a state policy which results in a deprivation, the local entity may escape
liability.” See, e.g., Surplus Store and Exchange v. City of Delphi, 928 F.2d 788 (7th
Cir. 1991).

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This is generally not an issue when the deprivation of federal rights results from
enforcement of a regulation or policy formally adopted by the agency. The problems
arise when the source of the policy, or the authority under which it is
enforced, is uncertain.

Establishing a “Custom, Policy or Practice” in the Absence of Written Guidelines or

Repeated Acts: The Role of the “Final Policy-Making Authority”
Under Section 1983, an unwritten “standard operating procedure” can amount to a
“custom, policy or practice” if carried out with the acquiescence of the agency
heads. Jett v. Dallas Independent School District, 491 U.S. 701 (1989). Thus, in Jett v.
Dallas Independent School District, which involved an alleged unwritten custom of racial
discrimination, the plaintiff could only establish such a policy or practice by proving that
agency policy-makers “caused the deprivation of rights at issue by ... acquiescence in a
long-standing practice or custom....” Id. at 737. Under this principle, for example, a
housing authority’s custom of permitting friends of its employees to leapfrog the waiting
list for vacant units can be actionable under Section 1983 if shown to be so blatant that
one can infer that the agency had no objection to it.

To establish a “policy or practice” in the absence of a formal agency rule or

guideline will usually require proof of repeated incidents suggesting a pattern or
practice. “[T]he scope of § 1983 liability does not permit such liability to be imposed
merely on evidence of the wrongful action of a single city employee not authorized to
make city policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 833 (1985) (Brennan,
J., concurring). Nonetheless, a single decision made by the “final policy making
authority,” such as the governing body of an agency or one having the power to
finally decide on its behalf, can constitute a “policy” under Section 1983. This is
because “the ‘official policy’ requirement was intended to distinguish acts of the
municipality from acts of employees of the municipality, and thereby make clear that
municipal liability is limited to action for which the municipality is actually
responsible.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (plurality opinion holding that
a prosecutor who, having the power to do so, authorizes a forcible entry in violation
of the Fourth Amendment creates a “policy”, citing as examples of the principle;
Owen v. City of Independence, 445 U.S. 622 (1980) (firing by city counselor allegedly
without due process); and City of Newport v. Fact Concerts, 453 U.S. 247 (1981)
(cancellation of jazz concert by city council because rock group was booked, in violation
of First Amendment).

Other cases have similarly held that a decision made by the authority to whom the
power to decide has been delegated by a governing body is also “policy.” See Monell
v. New York City Department of Social Services, 436 U.S. 658, 694-95 (1978) (policy
which required pregnant teachers to take unpaid leaves without affording teachers due
process). State law determines whether a particular person or entity is
the “final policy-making authority.” Thus, in City of St. Louis v. Prapotnik, 485
U.S. 112 (1988) (plurality opinion), the delegation of power to a lower official did not

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make the official a “policy maker” if final authority still lay elsewhere. In Jett, 491 U.S.
at 701, a school principal was found not to necessarily be the final decision maker as to
render the district responsible for alleged racial discrimination. Moreover, inaction on
the part of the “final policy-maker” in the face of decisions made by subordinates
has been found to be an insufficient delegation of decision-making authority. Gillette
v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). This situation, involving
acquiescence to decisions made by subordinates, can be distinguished from those
involving inaction at all levels, which can constitute “policy.”

As a practical matter, this rule means that an unlawful particular policy or practice
adopted by a mid-level supervisor in the agency will not make the agency liable. A
routine established by a General Assistance unit supervisor or a Section 8 chief housing
inspector will not, absent evidence of knowing acquiescence by the highest levels of the
agency, constitute a custom, policy or practice sufficient to hold the agency liable.

Related to the "final policy-making authority" inquiry is whether, in carrying out

the custom, policy or practice, the defendant official "acted" on behalf of a local
agency or the state. On the one hand, a local official's enforcement of a state law or
policy does not, without more, convert it into local policy. On the other, some ostensibly
local agencies – such as county sheriffs or school boards – can be considered under
state law to be state agencies when carrying out particular functions. As such, the
local agency can escape liability when its officer can be considered a "final policy-
making authority" only in her or his guise as a state official. And the state, of
course, cannot be sued under Section 1983.

Compare Surplus Store and Exchange v. City of Delphi, 928 F.2d 788 (7th Cir.
1991) (no Monell liability possible where the alleged policy was to require police officer
to enforce state law) with McKusick v. City of Melbourne, 96 F.3d 478 (11th Cir. 1996)
(local policy created because, in enforcing a state court injunction against anti-abortion
picketers, the city chose a particular method of enforcement, e.g., to arrest
demonstrators). McMillian v. Monroe County, 520 US. 781 (1997) (county sheriff sued
in his official capacity could not set local law enforcement policies since that power
was vested only in the state). Quern v. Jordan, 440 U.S. 332 (1979) (Since Congress did
not intend Section 1983 to apply to states, Eleventh Amendment bars suit).  State officials
sued in their official capacity are similarly immune. Hafer v. Melo, 502 U.S. 21 (1991).

§ 821 State and federal governments, generally [16A Am Jur 2d

CONSTITUTIONAL LAW]
It follows that the requirements of due process of law extend to every case of the exercise
of governmental power. Union Bridge Co. v United States, 204 US 364, 51 L Ed 523, 27
S Ct 367; Chicago, B. & Q. R. Co. v Illinois, 200 US 561, 50 L Ed 596, 26 S Ct 341;
Seaboard A. L. Ry. v Simon, 56 Fla 545, 47 So 1001. Where rights are acquired by a
citizen under the existing law, there is no power in any branch of the government to take
them away except by due process of law. The purpose of this clause is to exclude
arbitrary power from every branch of the government. It has been asserted that the
guaranty should be enforced even against persons assuming to act under the authority

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of the government. United States v Lee, 106 US 196, 27 L Ed 171, 1 S Ct 240; Charles
Tolmas, Inc. v Police Jury, 231 La 1, 90 So 2d 65; Rowan v State, 30 Wis 129. The
guaranty is violated whenever any person, by virtue of public position under the federal
or state government, deprives another of any right protected by that amendment. The
guaranty may be violated by unfairness or corruption of officers in the performance of
administrative functions. Chicago, B. & Q. R. Co. v Chicago, 166 US 226, 41 L Ed 979,
17 S Ct 581; Norris v Alabama, 294 US 587, 79 L Ed 1074, 55 S Ct 579; Mooney v
Holohan, 294 US 103, 79 L Ed 791, 55 S Ct 340, 98 ALR 406, reh den 294 US 732, 79
L Ed 1261, 55 S Ct 511.

§ 822 State agencies, departments, or officials [16A Am Jur 2d CONSTITUTIONAL

LAW]
A state may not by any of its agencies, departments, or officials, whether legislative,
judicial, or executive, disregard the constitutional prohibition. Every state official, high
and low, is bound by the Fourteenth Amendment. The inhibition includes all
functionaries of state government, judicial as well as political. Buchalter v
New York, 319 US 427, 87 L Ed 1492, 63 S Ct 1129; Brinkerhoff-Faris Trust & Sav.
Co. v Hill, 281 US 673, 74 L Ed 1107, 50 S Ct 451; Georgia Power Co. v Decatur, 281
US 505, 74 L Ed 999, 50 S Ct 369; United States v Raines, 362 US 17, 4 L Ed 2d 524,
80 S Ct 519; Ladner v Siegel, 298 Pa 487, 148 A 699, 68 ALR 1172.
Indeed, the Fourteenth Amendment is a restraint on the legislative, executive, and
judicial departments of the state. Barrows v Jackson, 346 US 249, 97 L Ed 1586, 73 S
Ct 1031, reh den 346 US 841, 98 L Ed 361, 74 S Ct 19; Hansberry v Lee, 311 US 32, 85
L Ed 22, 61 S Ct 115, 132 ALR 741; Brinkerhoff-Faris Trust & Sav. Co. v Hill, 281
US 673, 74 L Ed 1107, 50 S Ct 451; Hovey v Elliott, 167 US 409, 42 L Ed 215, 17 S Ct
841. The act of a public official of a state is the act of the state in depriving
an individual of property, life, or liberty without due process of law. Neal v
Delaware, 103 US 370, 26 L Ed 567(1880).

Liability for Inadequate Training

Often, however, the problem is with not the “policy” of the agency, but that agency
employees are ignorant of the policy. In some narrow circumstances, the agency’s
failure to train its employees to comply with agency policy can lead to liability if, as
a result of employee ignorance or inadequate training, a plaintiff is deprived of
federal rights. For example, the Supreme Court has ruled that the failure to adequately
train police officers to identify prisoners who are injured, or who have serious medical
conditions or mental impairments, can result in the deprivation of the prisoner’s
Fourteenth Amendment liberty interest in receiving adequate treatment while
incarcerated. In City of Canton v. Harris, the court wrote that inadequate training could
give rise to liability if: in light of the duties assigned to specific officers or employees
the need for more or different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that the policy-
makers can reasonably be said to have been deliberately indifferent to the need. City
of Canton v. Harris, 489 U.S. 378, 390 (1989).

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Ordinarily, a showing of deliberate indifference requires a showing of notice and,
thus, a pattern of constitutional violations.  In the Supreme Court's most recent case on
this issue, Connick v. Thompson, the Court held that a single Brady violation by
prosecutors who failed to turn over to the defense exculpatory blood evidence was
insufficient to show inadequate training and thereby impose Section 1983 liability.
Connick v. Thompson, 131 S.Ct. 1350 (2011). The Court found that Thompson's
"single incident" claim did not fall within a hypothesized scenario of single incident
liability for failing to train police in City v. Canton.  Instead, the Court concluded that,
 It does not follow that, because Brady has gray areas and some Brady decisions are
difficult, prosecutors will so obviously make wrong decisions that failing to train them
amounts to "a decision by the city itself to violate the Constitution." To prove deliberate
indifference, Thompson needed to show that Connick was on notice that, absent
additional specified training, it was "highly predictable" that the prosecutors in his office
would be confounded by those gray areas and make incorrect Brady decisions as a
result. In fact, Thompson had to show that it was so predictable that failing to train the
prosecutors amounted to conscious disregard for defendants' Brady rights. He did not
do so. Id. at 1365.

While this issue most often arises in the context of damage suits involving incarceration,
inadequate training is also relevant to the typical legal services practice which routinely
encounters chronic problems related to the avoidable ineptitude of social services or
housing authority employees.  For instance, payment of aid pending an administrative
appeal might be the formally adopted policy of the agency, but not afforded in practice.
An aggrieved party may be able to challenge the chronic failure of agency employees to
provide “aid paid pending” by asserting that the agency has inadequately trained its staff. 
The result of this inadequacy, after all, has been the temporary deprivation of benefits – a
property interest – from those entitled to receive them. In essence, to overcome the rule
that a tort suit couched as a deprivation of due process is not actionable under Section
1983, the plaintiff must show that her injuries evidence a systemic problem which
could have been avoided had procedural safeguards been in place. Compare Parratt
v. Taylor, 451 U.S. 527 (1981), with Zinermon v. Burch, 494 U.S. 113 (1990).

If incidents of this type are fairly pervasive, it suggests a de facto “custom or policy”
which systematically results in the deprivation of due process. An injured party
should accordingly be able to frame her claim in a manner consistent with the
parameters set by Thompson and City of Canton.
In her concurring opinion in City of Canton, Justice O’Connor wrote that a plaintiff must
prove the need for training in one of two ways. “First, a municipality could fail to train
its employees concerning a clear constitutional duty implicated in recurrent situations
that a particular employee is certain to face. . . . Second, . . . municipal liability for
failure to train may be proper where it can be shown that policy-makers were aware of,
and acquiesced in, a pattern of constitutional violations involving the exercise of police
discretion. In such cases, the need for training may not be obvious from the outset, but a
pattern of constitutional violations could put the municipality on notice that its officers
confront the particular situation on a regular basis, and that they often react in a
manner contrary to constitutional requirements.” 489 U.S. at 396-97. In Board of

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Commissioners v. Brown, 520 U.S. 397 (1997), Justice O’Connor’s majority opinion
reiterated that liability could not be based on a single incident without effectively
undermining the Monell rule barring governmental respondeat superior liability.

Such a claim may also be brought in the education context. In Davis v. Monroe County
Board of Education, the Supreme Court applied the “deliberate indifference” standard to
a gender discrimination claim under Title IX of the Civil Rights Act and ruled that a
primary or secondary school student could hold a school district liable for student on
student sexual harassment which continued as a result of the district’s refusal to address
the issue despite notice of the persistent problem. Davis v. Monroe County Board of
Education, 526 U.S. 629 (1999).

Good Faith Defenses and the Availability of Punitive Damages

To what extent can a municipality escape liability on the ground that its officials
acted in “good faith?” Owen v. City of Independence rejected a claim that an agency –
as opposed to an agency employee sued in his or her individual capacity – could claim
qualified immunity based on the good faith of its officials. Owen v. City of
Independence, 445 U.S. 622 (1980). Owen involved the firing of a chief police without
notice of the reasons for this action, or a hearing, allegedly in violation of due process.
The claim was initially dismissed on the ground that, because the applicability of due
process in these circumstances was still “unclear” at the time, and because any
government employee defendants sued in their personal capacity would have been
entitled to claim qualified immunity, the same should apply to the city. The Supreme
Court reversed and ruled that granting qualified or good faith immunity to a
municipality was not compatible with Section 1983's fundamental purpose of
remedying violations of federal rights.

The Court reasoned that the danger of intimidation or inhibition – lurking when an
individual employee has to act under threat of possible suit – is not present when a
municipality or local government agency is sued because these entities can act only
through their employees or agents. Hence, granting immunities to government, or to
government agents sued in their official capacity for actions resulting from the
agency’s custom, policy, or practice, would only undercut the government’s
incentive to conform their operational procedures to federal law, or to control its
employees. Id. at 655-56.

For this reason, in an official capacity suit, damages can be awarded against a
government agency for actions that caused the deprivation of plaintiff’s rights even
if these actions were “objectively reasonable.” In the Court’s words:
By creating an express federal remedy, Congress sought to “enforce provisions of the
Fourteenth Amendment against those who carry a badge of authority of a State and
represent it in some capacity, whether they act in accordance with their authority or
misuse it.” How “uniquely amiss” it would be, therefore, if the government itself ... were
permitted to disavow liability for the injury it has begotten. ... Moreover, § 1983 was
intended not only to provide compensation to the victims of past abuses, but to serve as a
deterrent against future constitutional deprivations, as well. ... The knowledge that a

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municipality will be liable for all of its injurious conduct, whether committed in good
faith or not, should create an incentive for officials who may harbor doubts about the
lawfulness of their intended actions to err on the side of protecting citizens’
constitutional rights. Furthermore, the threat that damages might be levied against the
city may encourage those in a policymaking position to institute internal rules and
programs designed to minimize the likelihood of unintentional infringements on
constitutional rights. Id. at 651-52 (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)
(other citations omitted)).

In short, if the employee is sued in his or her official capacity and the
actions at issue are the result of a custom, policy, or practice, this rule
effectively creates a “strict liability” standard for the governmental
employer.

On the other hand, governmental defendants are immune from a claim of punitive
damages. Punitive damages are available in a Section 1983 action against an
individual defendant on a showing of subjective ill will or malice. Smith v. Wade, 461
U.S. 30 (1983). However, because the government -- already lacking immunity from
awards of actual damages – should not be punished for the actions of rogue
employees, punitive damages cannot be awarded against a government agency or
municipality under Section 1983. In City of Newport v. Fact Concerts, Inc., the court
stated:
Punitive damages ... are not intended to compensate the injured party, but rather to
punish the tortfeasor whose wrongful action was intentional or malicious, and to deter
him and others from similar extreme conduct ... Regarding retribution, . . . an award of
punitive damages against a municipality “punishes” only the taxpayers, who took no part
in the commission of the tort . . . . Newport v. Fact Concerts, Incorporated, 453 U.S. at
266-67

The Court reasoned that it was unclear that an award of punitive damages would deter
municipal officials who would not themselves pay the award. Similarly, it was unclear
that punitive damages were the most effective method for correcting or deterring similar
violations of federal law. Id. at 268-69.

Municipal Liability for Employees Sued in Official Capacities

Generally, a governmental agency can only act through its employees. Unless they
are acting as renegades in violation of agency policy, these employees are merely
implementing the entity’s custom, policy, and practice. If the result of these actions
is a deprivation of federal rights, both the employee and the agency can be sued.
While an employee may be able to invoke qualified immunity so long as the
contours of the federal right were not “clearly established,” the governmental
employer has no such defense. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 828
(2009). If the governing law was clearly established, the plaintiff would theoretically
be entitled to damages from the employee, since the employee would not have
qualified immunity. If suit against the government is permissible under the
circumstances, it may be unproductive to sue the employee in her personal capacity since

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(1) the employer is the “deep pocket,” and (2) additional damages, such as punitive
damages, are likely to be unavailable from the employee. That the employee was
following agency rules probably undermines a claim that the employee possessed the
requisite malice or ill will.

Even if the entity is being sued as a result of a custom, policy, or practice, tactical
reasons or pleading rules may require that the individual employee be named as the
defendant, rather than the agency itself. For example, a claim for an injunction might
name the head of the agency as a defendant in order to hold her or his successor
responsible for future compliance with a court order. Nevertheless, as a practical
matter, so long as the employee is sued in his or her official capacity, the action lies
against the governmental agency. To avoid confusion, it may be useful to contrast
“personal capacity” liability with that based on “official capacity.”

A government employee can be sued in his or her personal or official capacity, or

both, the distinction being the person or entity that the plaintiff is ultimately holding
responsible. The Supreme Court has stated: “Personal-capacity suits seek to impose
personal liability upon a government official for actions he takes under color of state
law. ... Official-capacity suits, in contrast, ‘generally represent only another way
of pleading an action against an entity of which an officer is an agent.’” Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. New York City Department of
Social Services, 436 U.S. 658, 690, n.55). The Court explained “[T]he phrase ‘acting in
their official capacities’ is best understood as a reference to the capacity in which
the state officer is sued, not the capacity in which the officer inflicts the alleged
injury.” Hafer v. Melo, 502 U.S. 21 (1991). For example, in Hafer v. Melo, involving a
state official who had fired state employees because of their political affiliations after
taking over a state agency, the actions of the new head of the agency were
quintessentially "official.” Nevertheless, after the plaintiffs’ original “official capacity”
claim had been dismissed on the ground that any award of damages would, contrary to
the Eleventh Amendment, have been paid by the state, the Supreme Court ruled that the
official could also be sued in her personal capacity. Id. at 26.

In “official capacity” suits, the government agency must comply with the injunction
or pay the damage award. In “personal capacity” suits, the employee is liable,
although agency indemnification is the usual practice. However, the fact that the
official was on the job when he or she deprived the plaintiff of federal rights does
not shield the government agent from personal liability and convert the action into
an “official capacity” suit. A welfare worker who unilaterally discontinues the benefits
of a Food Stamp recipient without the authority of agency regulations is acting on his
own – in his “personal capacity,” and not in an official capacity. By the same token, an
employee who terminated a recipient’s benefits by implementing a state regulation can
theoretically be sued in his official capacity as well as personal capacity, although it
would be better practice to sue the agency and/or the head of the agency, particularly
if prospective equitable relief were sought.

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U.S. Constitution: Eleventh Amendment
Tort Actions Against State Officials .-- In Tindal v. Wesley, 167 U.S. 204 (1897). The
Court adopted the rule of United States v. Lee, 106 U.S. 196 (1883). A tort suit against
federal officials, to permit a tort action against state officials to recover real
property held by them and claimed by the State and to obtain damages for the
period of withholding. “The immunity of a State from suit has long been
held not to extend to actions against state officials for damages arising
out of willful and negligent disregard of state laws.” Johnson v. Lankford,
245 U.S. 541 (1918); Martin v. Lankford, 245 U.S. 547 (1918). The reach of the rule is
evident in Scheuer v. Rhodes, 416 U.S. 232 (1974), in which the Court held that
plaintiffs were not barred by the Eleventh Amendment or other
immunity doctrines from suing the governor and other officials of a
State alleging that they deprived plaintiffs of federal rights under color
of state law and seeking damages, when it was clear that plaintiffs were
seeking to impose individual and personal liability on the officials. There was no
''executive immunity'' from suit, the Court held; rather, the immunity of state
officials is qualified and varies according to the scope of discretion and responsibilities of
the particular office and the circumstances existing at the time the challenged action was
taken. These suits, like suits against local officials and municipal corporations, are
typically brought pursuant to 42 U.S.C. Sec. 1983 and typically involve all the
decisions respecting liability and immunities there under. On the scope of immunity
of federal officials, see supra, pp.748-51.

Defendants
The defendants should be identified with a close eye toward relief. As a rule of thumb, if
you seek damages, seek them from the person who inflicted the injury
leading to the claim for damages. By contrast, if you seek injunctive relief, you
must name the highest-level officials, usually the department heads, since they can offer
the most thorough and far-ranging relief. Injunctive relief starts at the top; damages
start at the bottom. The bedrock principle is to include as defendants
everyone necessary for relief.

The allegations as to the defendants should include not only their past, present, or
future conduct but also their authority. This is obvious when you are seeking
injunctive relief since officials may be enjoined only to act within their authority. But it is
equally true when damages are being sought. You must particularly allege an
official’s authority if you are seeking damages not only from that official but
also from the official’s superior or the municipality or agency employing the official.
Misconduct beyond the scope of employment rarely leads to vicarious or respondeat
superior liability. Thus, allegations as to authority are important for both
injunctive relief and damages.

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Defendant classes may be named under Rule 23. This is equally true in many state courts.
Naming defendant classes may be of considerable value when you bring an action
against a city or county in a state where similar practices are followed in a number
of cities or counties. In federal court, a state may not be sued in its own name. Since Ex
parte Young, complaints for injunctive relief are filed against a state
official, not the state itself. Suits against a state official in federal court may not
seek damages from that person in that person’s official capacity if such damages
ultimately would come from the state treasury.

Pleading Facts and Theories

For the strategic reasons outlined above, the facts should be drafted so
that they tell a clear and compelling story guiding the reader to believe
in the obvious need for relief. Casting the story in human terms makes it more
immediate and, therefore, more compelling. As explained above, this factual
presentation must be made in sufficient detail to satisfy the new plausibility
standards and should be framed in terms that will resonate with the judge's
experience and common sense.  Where possible, refer to the plaintiff by name rather
than by legal designation. Defendants can be personalized when you are emphasizing
their acts as individuals, or they can be depersonalized to remove sympathy for them and
remind the reader of their essential nature as an institution or bureaucracy. If possible,
get someone unfamiliar with the case read (review) the facts to make
sure the story is clear and convincing.

A chronological framework may support the clarity of your presentation, but other
narrative devices may be effective as well. Brevity and clarity may also be enhanced
by attaching supplementary materials, such as notices, and by incorporating them
by reference. As in any writing, pacing is an important element of your drafting. For
instance, if the age and physical condition of your plaintiff is critical to your case, you
may devote separate paragraphs to stating the plaintiff’s age, describing each physical or
mental impairment, and the effect each impairment has on the plaintiff. On the other
hand, if these facts are irrelevant to your legal claims, you may choose to include a range
of identifying and background information in a single paragraph, which introduces your
client without distracting from the more important core of the story you need to tell.
Although you are likely to have several claims, you will have one core legal
theory—the legal theme of the case. That theme should be sounded in the
complaint’s preliminary statement in a succinct but persuasive way. An example of a
poor preliminary statement appears in the Jones v. Clinton complaint: “Plaintiff Paula
Corbin Jones, by counsel, brings this action to obtain redress for the deprivation and
conspiracy to deprive Plaintiff of her federally protected rights as hereafter alleged,
and for intentional infliction of emotional distress, and for defamation.” The
statement is written in overly stilted, legalistic language and is devoid of any
mention of a core theory or persuasive connection between the facts and
the legal claims. Were this not a case destined to capture the attention of the nation,
the statement alone would not have commended the continued reading of the complaint.

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Following the chronology of facts, the complaint should set forth the legal theories
that lead to relief. These may be constitutional, statutory, or regulatory. They may
include both federal and state theories. You must draft the theories clearly and
cite their statutory, regulatory, or constitutional bases. In complex
regulatory cases, you should reduce legal complexity to a minimum in the body of
the complaint. The essential elements of the statutory and regulatory
scheme should be set out in the complaint, but a detailed discussion
should wait for briefing.

In drafting your legal claims, you are likely to have choices about grouping claims
together or listing them separately. For instance, a claim might be “Defendant engaged
in unlawful discrimination by denying plaintiff an apartment because of plaintiff’s
national origin in violation of” and then listing the various statutes,
regulations, and other sources of law. Or a claim might be stated as “Defendant
violated the Fair Housing Act by (a) refusing plaintiff an apartment and (b) giving
plaintiff information different from other applicants.” The key to well-crafted
pleading of claims is to strive for clarity, to delineate them based on the
themes of the case, and to ensure the preservation of claims should any
others be dismissed. If claims are grouped incoherently, then a motion to dismiss
may remove valid claims from your case. Clear delineation of your claims helps in
your ongoing case management as you plan and conduct discovery and as you maintain
time records for an application for attorneys’ fees.

Developing the Legal Theory

Describes the problems to be addressed, begin analyzing whether the acts or
omissions of concern violate any constitutional principles, laws or regulations, or
federally approved plans guiding state action or common law norms.  As this
analysis unfolds, consider what public or private entities or individuals
are arguably responsible for the harm alleged.  In exploring which legal
claims will be asserted in the lawsuit, it is useful to start with some preliminary legal
brainstorming.  Make a list of the types of legal protections that may be infringed by
the detrimental actions the client describes.
A helpful approach is to use a hierarchy of legal claims and, then, to apply it to each
potential defendant in the case:

 Is there a federal constitutional right or protection that a defendant is

violating?
 Is there a state constitutional right or protection that a defendant is
violating?
 Is there a federal statute or regulation that a defendant is violating?
 Is there a state or local statutory right or regulation that a defendant is
violating?
 Is there a federally approved state/county plan that a defendant is violating?

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  Is there a federal, state or local common law right or norm that a defendant
is violating?
 Is the defendant engaging in action that violates the federal or state
Administrative Procedure Act?

Do not prematurely disregard or discount potential claims until your legal research
leads you to conclude that there is no basis for proceeding with such a claim. 
Assemble and study each statutory and regulatory provision arguably
implicated in the issue presented by your client.  Consider the plain meaning
of these provisions, cross-referenced provisions, exceptions, and any indications of
discretion afforded the potential defendant.
Next explore whether other courts have considered the legal claims you may raise,
or similar claims, examine relevant opinions from both federal and state courts. 
However, be aware that reliance solely on computerized research tools will miss
unreported cases or cases that have not yet been decided. 

In examining what other courts have done, pay particular attention to potential
barriers to enforcing the relevant constitutional provision, statute, regulation or
plan and which potential defendants have asserted these defenses.  Consider who
was named as defendants in these cases and what relief was sought.

Framing Relief
The request for relief is a required part of the complaint. It forms the opening
gambit in any negotiations. It acts as the “ceiling” for what you can
obtain either in settlement or from the court. It colors the way others,
including the court and the defendant, perceive the lawsuit depending on whether
they view what you want as reasonable or as overreaching. Thus, how you frame your
request for relief is a strategic decision.
Each type of relief you want must be listed. Your requested relief might include the
following:
 Injunctive relief (prospective, retroactive or both)
 Declaratory relief
 Compensatory damages
 Punitive damages
 Pain and suffering
 Statutory damages, such as treble damages or fines
 Reimbursement of funds paid or lost
 Class action certification, if applicable
 Attorneys’ fees
 Costs

Each type of relief must be supported by the factual allegations and
legal claims that precede it. If injunctive relief is sought, there should also be a
routine allegation that equitable relief is necessary because relief at law is inadequate.
The request for relief should also contain a catchall request for “such other and further

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relief as this court may deem just and proper.” This clause is your protection if you
seek to obtain more than or different relief from what you contemplated when you
drafted the complaint..

The specificity of the relief requested depends on the complexity of the

case and the degree to which specifics are known at the time of filing. For
example, if the relief requested is clear and specific, it may be best to state it: “Provide
plaintiff with the public assistance benefits to which he was entitled from January 15,
2002, the date of his eligibility.” A request for systemic relief, however, may be
phrased more broadly, with details to follow in a consent decree or remedial order.
The important principle is to be broad and inclusive in the prayer for relief. Do not
leave anything out.

Basis for Settlement

You will be thinking about settlement from the moment you begin to prepare the
litigation. The complaint serves as the basis and framework for settlement
throughout the case, especially if prompt settlement is desired or possible. Although
there are exceptions when settlement can provide more relief than you can request
from the court, in general, the relief portion of the complaint serves as the
outside boundaries of what you can request from the defendant in
settlement negotiations. Thus, consider including in the complaint not only what
you want to receive but also what your opponent does not want to provide. Relief that
may be of relatively little importance to you may be of great concern to your
opponent. Giving up that relief may prompt more significant concessions by the
defendant. The quality of the complaint will also serve to enhance your
actual and perceived bargaining position as it reflects your skill as a
litigator, the thoroughness with which you are approaching the issue,
and the factual and legal strength of your case.
A detailed complaint may serve to the plaintiff’s benefit in court-ordered mediation
processes. A well-drafted complaint followed by a typically boilerplate answer
effectively tells a story from the plaintiff’s perspective to the third-party neutral.
Atmospherically or substantively, this may create a measure of
momentum for encouraging settlement on terms more favorable to the
plaintiff.

Protection against Motion to Dismiss

The complaint must be sufficient to survive a motion to dismiss. Your thorough review
of the law in the substantive area involved should reveal to you the typical grounds
for motions to dismiss and the potential weaknesses in your case. It is helpful to
imagine yourself as the associate in the opposing counsel’s firm or office assigned to
draft a motion to dismiss your case, thus providing yourself with an opportunity to
identify and address your complaint’s weaknesses before you file it.

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Prior to 2007, the legal aid attorney could take comfort in the notion that all “the Rules
require is a ‘short and plain statement of the claim’ that will give the defendant fair
notice of what the plaintiff’s claim is and the ground upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957); See Fed. R. Civ. P. 8(a). For fifty years, the Court
followed the principle set forth in Conley v. Gibson that complaints that supplied such
notice should not be dismissed unless it is "beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S.
at 45-46. The Supreme Court rejected efforts to impose heightened pleading standards
as recently as 2002. In Swierkiewicz v. Sorema, 534 U.S. 506 (2002), the Court held that
a plaintiff pleading Title VII and Age Discrimination in Employment Act claims was not
required to plead each element of a prima facie case of discrimination. McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Noting that the McDonnell Douglas
standard was an evidentiary, not a pleading requirement, the Court held that the
complaint need only give “fair notice of the basis for [plaintiff’s] claim.”
Swierkiewicz, 534 U.S. at 514.

In Twombly, a 2007 Sherman Act case, the Court made it quite clear that the complaint
must do more than merely provide notice to the defendant.  Rather, it held that a
complaint must contain facts that "plausibly suggest" a conspiratorial agreement
rather than facts simply alleging conduct consistent with such an agreement. Bell
Atlantic v. Twombly, 550 U.S. 544 (2007). Burying the traditional Conley formulation,
the Court cautioned that "a plaintiff's obligation to provide the 'grounds' of his
'entitlement to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Id. at 555. The complaint
must do more than simply leave open a possibility that the plaintiff could prove its case.
Instead, the pleading must contain detail sufficient to create a reasonable
expectation that discovery will surface evidence of wrongdoing. The Court
insisted that it was not imposing a heightened pleading standard, but instead required
allegations of sufficient detail to "cross the line from conceivable to plausible."
Id. at 570. The Court's clear repudiation of the Conley "no set of facts" language and
extended discussion of the costs of discovery underscore a more rigorous pleading
standard.

The Court's 2009 decision in Iqbal took plausibility pleading beyond antitrust cases and
imposed it quite rigorously. Iqbal was a Bivens case brought by a Pakistani arrested after
9/11 and housed in a maximum security prison under allegedly harsh conditions. To
prevail, Iqbal had to plead and prove that the defendants at issue, the former Attorney
General and the FBI Director, had adopted or approved of detention policies for the
purpose of discriminating against him on the basis of religion, race or national origin.
Iqbal, 556 U.S. at 677. The Court explained that "the pleading standard Rule 8
announces does not require 'detailed factual allegations,' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Id. at 678.

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With respect to the "plausibility" standard described in Twombly, Iqbal explained that
"[a] claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." see Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct.
1309, 1323 (2011).
The Iqbal Court noted that "[t]he plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are 'merely consistent
with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of 'entitlement to relief.'"
When a set of pleaded facts gives rise to two alternate reasonable inferences, one tending
to support liability and the other not, the plausibility standard is met. Fabian v. Fulmer
Helmets, Inc., 628 F.3d 278, 281 (6th Cir. 2010). Swanson v. Citibank, 614 F.3d 400 (7th
Cir. 2010) is an interesting pro se lending discrimination case in which the majority, over
Judge Posner's dissent, took a rather gentle approach to applying Iqbal and Twombly,
stating that, "[a]s we understand it, the Court is saying instead that the plaintiff
must give enough details about the subject-matter of the case to present a
story that holds together. In other words, the court will ask itself could these things
have happened, not did they happen. For cases governed only by Rule 8, it is not
necessary to stack up inferences side by side and allow the case to go forward only if
the plaintiff's inferences seem more compelling than the opposing inferences."  Id. at
404. McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011) later distinguished
Swanson on the facts.

Iqbal's significance lies in operationalizing the plausibility standard.

The Court in Twombly acknowledged that a court must treat the complaint's factual
allegations as true, "even if doubtful in fact." Twombly, 550 U.S. at 555. But, in Iqbal,
the Court cautioned that courts need not accept as true "threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements."

Iqbal, 556 U.S. at 678. For an interesting post-Iqbal decision authored by Justice Souter,
sitting as a Circuit Judge, see Sepúlveda-Villarini v. Dep't of Educ. of Puerto Rico, 628
F.3d 25 (1st Cir. 2010). In Sepúlveda-Villarini, plaintiffs alleged that the defendants
discriminated against them by failing to reduce their class sizes to accommodate
disabilities. The court reversed the trial court's dismissal of their claims, holding that the
facts pled in the complaint could infer a causal connection between the larger class size
and deterioration in the teachers' health. Justice Souter wrote, "[a] plausible but
inconclusive inference from pleaded facts will survive a motion to dismiss, and the fair
inferences from the facts pleaded in these cases point to the essential difference between
each of them and the circumstances in Twombly, for example, in which the same
actionable conduct alleged on the defendant's part had been held in some prior cases to
be lawful behavior." Id. at 30.

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Such recitals are regarded as legal conclusions not subject to the presumption of
truth. The Court set out a procedure for separating legal conclusions from factual
allegations:
[A] court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a complaint, they must
be supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 679.

This procedure requires the court to engage in a two-step analysis that seems to go
beyond what was required in Twombly. First, the court should identify which
statements in the complaint or counterclaim are factual allegations and which are
legal conclusions. Legal conclusions should not be assumed to be true and may,
essentially, be discarded for purposes of the second step: assessing the factual
assertions. Those assertions are not evaluated in overall context, but are stripped
away from the discarded legal conclusions. "Determining whether a complaint states
a plausible claim for relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." The Court
regarded the complaint's allegations in Iqbal as conclusory because, in context, the Court
discerned a more likely explanation for the detentions: Iqbal was rounded up as an
undocumented alien because of his possible connections to the perpetrators of 9/11 as
part of a terrorism investigation, rather than because of discriminatory animus.  

The plausibility principle may have had particular impact in Twombly and Iqbal given the
nature of the claims asserted in those cases. In Twombly, there was no direct evidence of
collusive behavior in violation of the antitrust law. Rather, the plaintiffs alleged a
scenario consistent with such behavior when, at the same time, there existed another
equally or more plausible explanation for the apparent lack of competition that was
entirely innocent in nature. Without factual allegations underlying an inference that the
defendants’ behavior was collusive, the plaintiffs fell short of offering
allegations that made their theory a plausible one in light of the
alternative. Similarly, in Iqbal, the Court suggests that there was no direct evidence of
unlawful discriminatory intent; that intent must be inferred from other facts. The facts
alleged by the plaintiffs, the Court believed, were equally or more consistent with an
explanation that the defendants acted without discriminatory intent. In short, no facts
were alleged to bring the inferential gap between the behavior and the
intent or motive for that behavior.

The Twombly/Iqbal standard may be particularly problematic in cases in which the

defendant is the custodian of most of the facts underlying the complaint or cases turning
on mental states of intent or motive. It is difficult to discern how to allege unlawful
intent or purpose without using language, like "knowingly" or "willfully," that is
not conclusory in nature. Without discovery, plaintiffs will have considerable
difficulty unearthing support for such allegations, but such allegations will not

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permit the plaintiff to proceed to discovery. Iqbal also portends a significant expansion
in judicial power and discretion. Rather than merely determining whether a
complaint was sufficiently detailed to afford the defendant notice, a
fairly objective inquiry, the federal judge must now use their "judicial
experience and common sense" to determine whether allegations are
more subjectively "plausible." In a sense, "plausibility" is in the eye of
the beholder. Some judges may find challenges to the behavior of
governments or corporations implausible because the allegations do not
conform with intuitive or expected understandings.

Twombly and Iqbal have significant consequences. They call for more
detailed and fact-specific complaints, which, in turn, may require more
rigorous pre-filing investigation and preparation. Lurking below the surface
of Twombly and Iqbal are Rule 11 implications; how certain must the legal aid attorney
be of the more detailed factual allegations required to satisfy the plausibility standard?
See Fed. R. Civ. P. 11(b)(3). Note that Rule 11(b)(3) permits pleader to make factual
contentions "specifically so identified" when they "will likely have evidentiary
support after a reasonable opportunity for further investigation or
discovery."  So far, there is little case law dealing with the use of allegations made
under Rule 11(b)(3) to satisfy Iqbal. See Leary v. State Farm Fire & Cas. Co., Civ. No.
3:11-145, 2012 U.S. Dist. LEXIS 23898 at *35, 2012 WL 604338 at *12 (W.D. Pa. Feb.
24, 2012); Kemp v. City of Springfield, No. 10-CV-6420, 2012 U.S. Dist. LEXIS 30141
at *9, 2012 WL 775093 at *3 (D. Ore. Jan. 30, 2012); U.S. ex rel. Folliard v. CDW Tech.
Servs, 722 F. Supp. 2d 20 (D.D.C. 2010); Elan Microelectronics Corp. v. Apple, Inc.,
2009 U.S. Dist LEXIS 83715 (N.D. Cal. Sept. 14, 2009). In an interesting case,
Penalbert-Rosa v. Fortuño-Burset, 631 F.3d 592 (1st. Cir. 2011), a public employee
plausibly claimed that she was fired because of her political affiliation when a new
governor was elected. Id. at 594. However, the complaint offered insufficient
facts supporting her contentions that one of the named defendants was
involved in the firing. Id. The First Circuit affirmed the dismissal of the complaint
against the named defendants, but allowed the employee to amend the complaint to
proceed against John Doe defendants. Id. at 597.

The judge drawn to hear the case may have an immediate impact on the chances that the
defendant will file a motion to dismiss and prevail on that motion. An increased
possibility of a motion to dismiss may alter settlement dynamics. Few federal
appellate courts have had occasion to distinguish Iqbal. Two of note are al-Kidd v.
Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev'd on other grounds, 131 S. Ct. 2074 (2011),
and Smith v. Duffey, 576 F.3d 336 (7th Cir. 2009); see also Gulf Coast Hotel-Motel
Ass'n v. Gulf Coast Golf Course Ass'n, 658 F.3d 500, 506 (5th Cir. 2011); Hamilton v.
Palm, 621 F.3d 816 (8th Cir. 2010).

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 ATTACKS ON THE PLAINTIFF’S PLEADINGS

MOTION TO DISMISS: Attacks on the Plaintiff’s pleadings are generally

made in two forms: motions to dismiss and motions for summary judgment or, for a
judgment on the pleadings. Because of the probability of a Defendant’s claim of qualified
immunity and the immunity defenses raised by government entities, the first obstacle
normally faced by a § 1983 claimant is the motion to dismiss. Fed.R.Civ.P.12(b)(6)
provides that a Defendant’s response to a Plaintiff’s complaint may be in the form of a
motion to dismiss for failure to state a claim.

Most commonly the individual Defendant will rely on his claim of qualified
immunity and that the Plaintiff has failed to sufficiently plead his cause to overcome
the Defendant’s immunity to suit. For the government entity, the defensive claim will
be that the Plaintiff has failed to sufficiently plead that the entity has a policy and custom
of the conduct complained of, that the complained of conduct does not fall within the
state’s waiver of sovereign immunity (i.e. Texas Tort Claims Act, Tex.Civ.Prac. & Rem.
Code § 101.001 et seq.), that the entity is immune to suit because of sovereign immunity
under the Eleventh Amendment, or a myriad of other defensive claims.

In order to overcome the defendant’s initial attack, it is incumbent upon the Plaintiff to
specifically plead his case. Even though the Federal Rules envision notice pleading,
Fed.R.Civ.P. 8(a), in claims under 42 USC § 1983, the Plaintiff is held to a much
stricter standard. When faced with a challenge based on qualified immunity, the district
court should turn to the Plaintiff’s complaint to determine whether it complies with the
heightened pleading requirements triggered by the assertion of qualified immunity.
In doing so, the court should assume to be true the allegations of the complaint.
Notwithstanding the heightened pleading requirement imposed by Defendant’s qualified
immunity defense, the court should, as in the case of any Fed.R.Civ.P. 12(b)(6) motion,
take as true the allegations of the Plaintiff’s complaint. See Mitchell v. Forsyth, 472 U.S.
511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

The Plaintiff must specifically plead and support his allegations against the Defendant(s).
To overcome the Defendant’s attacks the Plaintiff must, depending on the circumstances,
specifically allege the following with respect to individuals and government entities:

(1) that under the circumstances a reasonable person would have known that the
conduct violated clearly established law;

(2) that the conduct was in accordance with the entity’s policy and custom;

(3) that in the case of a single occurrence, the conduct was initiated by or
acquiesced to by a final policy maker with respect to that particular conduct;

(4) that the Defendant’s conduct violates rights protected by the Constitution or

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 laws of the United States;

(5) that the violation of the Constitution or the laws of the United States was the
proximate cause of the Plaintiff’s damages.

SUMMARY JUDGMENT/JUDGMENT ON THE PLEADINGS:

The second of two primary methods of attacking the Plaintiff’s pleadings in a § 1983
action is the Defendant’s motion for summary judgment. In a motion for summary
judgment, a judgment may only be rendered in favor of the moving party if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Walker
v. Sears Roebuck, 853 F.2d 355, 358-359 (5th Cir.1988). A court must draw reasonable
inferences of fact in favor of the party opposing the motion. Walker, 853 F.2d at 358;
Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). So long as
some evidence supports the disputed allegations, the court must deny the motion.
Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir.1981).

In the line of cases beginning with Adickes v. Kress & Co., 396 U.S. 144, 90 S.Ct.
1598 (1970), the Supreme Court addressed the various issues presented in summary
judgment. In Adickes, the court held that “the moving party…[has] the burden of
showing the absence of a genuine issue of material fact, and for these purposes the
material it lodged must be viewed in the might most favorable to the opposing party.”
Adickes at 398 U.S. 157, 90 S.Ct. 1608. The decision in Celotex v. Catrett, 477 U.S. 316,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), altered the Adickes standard for deciding
summary judgments.

The Celotex Court said that if the moving party in summary judgment did not
have the burden of proof at trial, it was not necessary for that movant to present
evidence in support of its motion. Rather, the burden is on the party who has the
burden at trial. Now in a summary judgment the party with the burden at trial must
present sufficient evidence, which if proven by the preponderance of the evidence, would
allow a finder of fact to find in favor of that party having the burden of proof at
trial. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct.2505, 91 L.Ed.2d 202
(1986), the court defined the terms “genuine issue” and “material fact,” and held that:

…summary judgment will not lie if the dispute about a material fact is “genuine,” that is,
if the evidence is such that a reasonable jury could return a verdict for the non-moving
party. Id. at 248.
…the substantive law will identify which facts are material…while the materiality
determination rests on the substantive law, it is the substantive law’s identification of
which facts are critical and which facts are irrelevant that governs. Id. at 248.

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 Just as in motions to dismiss, the Plaintiff must specifically plead his case and be
prepared to support his claims with evidence to overcome a motion for summary
judgment. If the Defendant files a motion for summary judgment, pursuant to
Klingele v. Eikenberry, 849 F.2d 409 (9th Cir.1988), the Plaintiff’s response must
comply with the requirements of Federal Rule of Civil Procedure 56. Rule 56
requires the nonmovant to submit affidavits or other evidence in opposition to a
motion for summary judgment to establish that there are issues of material fact and
that the movant is not entitled to judgment as a matter of law. Pursuant to Local Rule
CR 7(b)(4) (Seattle, Washington), failure to file necessary documents in opposition to a
motion for summary judgment may be deemed by the court to be an admission that the
opposition is without merit.

Pleading Requirements
The burden of pleading and demonstrating subject matter jurisdiction rests on
the party invoking federal jurisdiction. Thus, a federal court plaintiff must
make in the complaint “a short and plain statement of the grounds upon which the
court’s jurisdiction depends.” Likewise, a defendant who removes a case from state
court must allege the basis of federal jurisdiction in the notice of removal. (28 U.S.C. §
1446(a)). In contrast, most state courts of general jurisdiction are presumed to have
jurisdiction over all civil actions unless such jurisdiction is specifically prohibited.
As a result, plaintiffs typically do not need to plead or prove the existence of subject
matter jurisdiction in state court.

Fed. R. Civ. P. 8(a)(1). Plaintiffs do not need to cite the statutory basis of

federal court jurisdiction as long as they plead sufficient facts to
establish jurisdiction. See Andrus v. Charlestone Stone Products Company, 436
U.S. 604, 608 n.6 (1978); Radici v. Associated Insurance Companies, 217 F.3d 737, 740
(9th Cir. 2000); Jensen v. Schweiker, 709 F.2d 1227, 1229 (8th Cir. 1983). If the
defendant facially challenges the jurisdictional allegations by arguing that they are
insufficient to invoke federal jurisdiction, the court will employ a  Fed. R. Civ. P. 12(b)
(6) standard and assume the truth of sufficiently pled jurisdictional allegation for
purposes of resolving the motion.  If the defendant challenges the truth of the factual
assertions, the court will consider evidence outside the pleading and impose on the
plaintiff the burden of demonstrating the facts asserted to warrant federal
jurisdiction.  Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), cert.
denied, 544 U.S. 1018 (2005). See 2 James Wm. Moore, et al., Moore's Federal Practice -
Civil section 12-30 (2010). 

Failure to plead properly the existence of jurisdiction may be cured by amendment.

Indeed, (28 U.S.C. § 1653) provides that such amendment may occur in the trial or
appellate courts. Because federal courts lack power to act without subject matter
jurisdiction, defendants may not waive objections to jurisdiction and may move to
dismiss on jurisdictional grounds at any time. (See Fed. R. Civ. P. 12(h)(3)). Moreover,

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both trial and appellate courts may raise subject matter jurisdiction issues sua
sponte, even after entry of judgment.

Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); see also Reed Elsevier v.
Muchnick, 559 U.S. 154, 130 S. Ct. 1237 (2010) (copyright registration requirement in
Copyright Act is not jurisdictional and does not preclude federal jurisdiction over suits to
enforce copyright claims by those who failed to register their copyright).  The Supreme
Court recently listed cases in which it found certain requirements jurisdictional and
nonwaivable and others waivable claims processing requirements in Union Pacific
Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67, 130 S. Ct. 584,
596-97 (2009).

The federal courts have been "less than meticulous" (Arbaugh, 546 U.S. at 511) in
distinguishing between statutory limitations which are jurisdictional and those which
are essential elements of a claim for relief.  The Supreme Court attempted to clarify
this distinction in Arbaugh v. Y&H Corp. 546 U.S. 500. In Arbaugh, the plaintiff won a
federal judgment after trial in a Title VII case. Subsequently, the employer moved to
dismiss the action on the ground that it was not an "employer" subject to Title VII
because it employed less than fifteen persons. The question presented was whether
Title VII's limitation on the definition of "employer" was jurisdictional, permitting
post-judgment dismissal of the action, or whether satisfying the "employer"
definition was an essential element of plaintiff's claim for relief, the absence of which
may be challenged in a Fed. R. Civ. P. 12(b)(6) motion, and clearly waived if not raised
before judgment.  The Court held that Congress must specify limitations of this sort as
jurisdictional and did not do so in Title VII.  In the absence of a clear statement that
Congress regarded the restriction as jurisdictional, the Court held that it should be treated
as nonjurisdictional. Id. at 515 (noting that the fifteen employee threshold requirement
was not in the jurisdiction section of the statute). Compare CNA v. United States, 535
F.3d 132, 140-43 (3d Cir. 2008) (scope of employment limitation in Federal Tort Claims
Act is jurisdictional as it is in the same sentence as the grant of jurisdiction).

The Court has also considered this distinction in "claim-processing" contexts in which an
individual fails to file timely an administrative appeal regarding a government benefit.
The most recent such case is Henderson v. Shinsekia 131 S. Ct. 1197 (2011) case in
which a veteran failed to appeal the denial of a claim to the Veteran's Court within the
120 days prescribed by Congress. The Court held that, ordinarily, such claim-processing
deadlines are not jurisdictional, and may therefore be tolled or waived, since they do not
govern the court's "adjudicatory capacity" as personal and subject matter jurisdiction do.
(Id. at 1202-03) Congress can intend such a rule to be jurisdictional, but must do so
clearly.  In Henderson, no jurisdictional attributes appeared in the relevant VA statutes,
which are otherwise to be interpreted in favor of veterans. The Court reached the same
result in Sebelius v. Auburn Regional Medical Center, 2013 U.S. LEXIS 915 at *15-21,
2013 WL 215485 at *6-8 (Jan. 22, 2013), where it found a Medicare statute that
permitted providers to appeal reimbursement decisions to a board within 180 days not to
be jurisdictional.

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 Federal Question Jurisdiction

Title 28, Section 1331 of the United States Code confers upon federal
district courts jurisdiction over “all civil actions arising under the Constitution,
laws, or treaties of the United States.” Section 1331, which grants what is commonly
referred to as federal question jurisdiction, is an all-purpose jurisdictional
statute, available regardless of the defendant's identity and, since 1980, is not
limited by any requirement that a minimum dollar amount be in controversy.
Section 1331 also confers jurisdiction in actions authorized by 42 U.S.C. § 1983
against defendants acting under color of state law. (See 28 U.S.C. § 1343). It
is generally available in suits against the federal government and its agencies and in
actions against federal officers and employees. See, e.g., Bivens v. Six Unknown Named
Agents, 403 U.S. 388 (1971).

In addition to the general federal question jurisdiction conferred by Section 1331,

Congress has enacted a number of more specific statutes conferring jurisdiction on the
district courts in cases arising under particular federal laws. One of these, once of
considerable importance, grants jurisdiction of cases arising under any congressional act
regulating commerce, 28 U.S.C. § 1337(a). Section 1337 and provisions conferring
jurisdiction in admiralty, bankruptcy, and patent, trademark, and copyright cases (28
U.S.C. §§ 1333, 1334, and 1338) are in the district court jurisdiction chapter of the
Judicial Code (Chapter 85 of Title 28). Besides conferring jurisdiction in the
federal courts, such organic statutes may waive sovereign immunity,
create causes of action, or specify relief.

Until 1980, § 1331 was limited by a $10,000 amount-in-controversy requirement. Before

the repeal of this limitation, plaintiffs with federal statutory claims involving $10,000 or
less for each plaintiff had to rely on other jurisdictional provisions not so limited.
Plaintiffs often invoked  28 U.S.C. § 1337(a)  since much legislation that is litigated
finds its constitutional authority in the commerce clause. In this regard, § 1337 is now
superfluous. See ErieNet, Incorporated v. Velocity Net, Incorporated, 156 F.3d 513,
519-20 (3d Cir. 1998). Similarly, before 1980, in § 1983 litigation involving $10,000
or less, plaintiffs relied on 28 U.S.C. § 1343(a)(3), the jurisdictional counterpart
of § 1983. While this jurisdictional provision is now also superfluous, it
is often still invoked along with § 1331 in civil rights cases.  See, e.g.,
Clinton v. Jones, 520 U.S. 681, 685 n.1 (1997); Dixon v. Burke Co., Ga., 303 F.3d 1271,
1274 (11th Cir. 2002).

Not only must the action “arise under” the Constitution or federal law, but the
federal question must also appear on the face of a “well-pleaded complaint.”

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(Franchise Tax Board, 463 U.S. at 9–10). In practice, this means that plaintiffs may not
invoke federal jurisdiction by raising contrived federal issues in the complaint or
anticipated federal defenses. Nor can federal jurisdiction be founded on insubstantial
or frivolous federal claims. Hagans v. Lavine, 415 U.S. 528, 535, 542–43 (1974). The
case most often cited for this proposition, though not the first, is Mottley, 211 U.S. at 149.
In Mottley the plaintiff alleged that a federal defense the plaintiff anticipated violated the
Constitution. The Supreme Court denied jurisdiction because “a suit arises under the
Constitution and laws of the United States only when the plaintiff’s statement of his
own cause of action shows that it is based upon those laws or that Constitution.” Id. at
153. See also Merrell Dow, 478 U.S. at 808 (relying on Mottley, 211 U.S. 149). "Nor can
federal jurisdiction rest upon an actual or anticipated counterclaim." Conversely, the
Court has not been willing to allow a plaintiff seeking to avoid federal jurisdiction by
artfully omitting a substantial federal question essential to its case. (Franchise Tax Board,
463 U.S. at 22).

Vaden v. Discover Bank, 556 U.S. 49, 60 (2009) (citing Holmes Group, Incorporated v.
Vornado Air Circulation Systems, Incorporated, 535 U.S. 826 (2002)). In Vaden, the
Court held that a federally preempted state law counter-claim cannot serve as the
basis for federal jurisdiction. Id. at 66-67; see also Rivet v. Regions Bank of Louisiana,
522 U.S. 470, 476 (1998) (defense of claim preclusion based on prior federal judgment
does not justify removal).

Somewhat more difficult are cases in which federal preemption may be a defense to state
law claims.  Generally, the well pleaded complaint rule would disregard such a potential
federal defense and view such claims as not invoking federal jurisdiction.  However, the
Supreme Court has crafted an exception when federal law completely occupies, and
thereby preempts, the entire field addressed by the state law claim.  In such cases,
these state law complaints are recharacterized as necessarily invoking federal law,
thereby permitting the defendant to remove the action to federal court. For example, in
Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 66 (1987), a disability benefits
case preempted by ERISA, the Court permitted removal to federal court where Congress
“clearly manifested an intent” to preempt the field and all state causes of action; see also
Aetna Health Care Incorporated v. Davila, 542 U.S. 200, 208-09 (2004); Beneficial
National Bank v. Anderson, 539 U.S. 1, 8 (2003).

Declaratory Judgment Act

The Declaratory Judgment Act is not, strictly speaking, a jurisdictional statute. See
Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. Under the Act, federal courts have
the power in cases of “actual controversy” to “declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further relief
is or could be sought.” 28 U.S. C. § 2201(a). (See Medimmune v. Genentech, 549 U.S.
118, 126 (2007) (plaintiff did not have to terminate licensing agreement before seeking a
declaratory judgment that underlying patent was invalid). In suits against federal
agencies or officials for review of adverse agency action, plaintiffs often seek
judgments declaring the action illegal as well as (occasionally in lieu of) injunctive
relief.  The Act does not confer or expand federal jurisdiction. See Skelly Oil Co. v.

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Phillips Petroleum Co., 339 U.S. 667, 671 (1950); cf. Franchise Tax Board, 463 U.S. 1,
18-19 (1983) (state declaratory judgment acts do not expand removal jurisdiction).
Therefore, the Act cannot be used defensively to raise federal issues that would not
appear on the face of a well-pleaded complaint. See Franchise Tax Board, 463 U.S. at
15; Skelly Oil Co., 339 U.S. at 671–72. Rather, the Act creates an additional remedy that
is available to a district court in a case in which (1) the case or controversy
requirement of Article III of the Constitution is met and (2) the court independently
has subject-matter jurisdiction because of either the presence of a federal question
or diversity of citizenship. See Aetna Life Insurance Co. v. Haworth, 300 U.S. 227,
240(1937).

Title 42, Section 1983 in a nutshell

United States Code, Title 42, Section 1983 is the federal statutory cause
of action that allows a person to sue a government officer or entity for a
deprivation of federal constitutional rights. Section 1983 states that “[e]very
person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.” 42 U.S.C. §§ 1983 (1994). To recover damages against
a government official under section 1983, a plaintiff must establish that a
constitutional right exists, that the defendant violated that right under color of state
law, and that the defendant’s acts proximately caused the plaintiff's
injury.

In an action brought against a municipality under 42 USCS § 1983 for depriving a

person of federally protected rights, the municipality is not entitled to qualified
immunity from liability by asserting the good faith of its officers or agents as a defense
to liability under § 1983. Owen v Independence (1980, US) 63 L Ed 2d 673, 100 S Ct
1398.

NATURE OF THE ACTION

Section 42 U.S.C. §1983 creates a cause of action against a person acting “under color of
any statute . . . of any State” who deprives another of a federally protected right. Only
state actors can be held liable under § 1983. The under color of state law element of
§1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful. To be liable under §1983, the claimed deprivation
must result from the exercise of a right or privilege having its source in
state authority, and the party charged with the deprivation must be one
appropriately characterized as a state actor.

(1.) Must name only Defendants who are responsible for the constitutional violations.

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(2.) Must state what rights under Constitution and/or laws have been violated and
provide support in the statement of facts for the claimed violations.

(3.) State how each named defendant is involved in the constitutional

violation(s) in the body of the complaint.

(4.) Show causal connection between the defendant(s) named and the injury
sustained and how defendant(s) participated in the deprivation of Plaintiff’s
constitutional rights or directed such action and/or omission that resulted in the
deprivation.

(5.) Must show specifically how Plaintiff has been damaged (how you have been
harmed or injured by the actions and/or omissions of the defendant(s).

(6.) How actions of the municipality or county rise to the level of a custom
or official policy.

For the purposes of § 1983, the actions of a nominally private entity are attributable to
the state when: (1) the entity acts pursuant to the coercive power of the
state or is controlled by the state (“the compulsion test”); (2) when the state provides
significant encouragement to the entity, the entity is a willful participant in
joint activity with the state, or the entity’s functions are entwined with state
policies (“the joint action test” or “close nexus test”); or (3) when the entity has been
delegated a public function by the state (“the public function test”). It is not enough,
however, for a plaintiff to plead state involvement in some activity of the institution
alleged to have inflicted injury upon a plaintiff; rather, the plaintiff must allege
that the state was involved with the activity that caused the injury
giving rise to the action. The question is not whether the decision to establish the
private entity was state action, but rather whether the private entity’s decision to
sanction plaintiffs may be fairly attributable to the government. Sybalski v.
Independent Group Home Living Program, Inc., 546 F.3d 255 (2nd Cir. 2008)

1. One way to prove “wilful joint action” is to demonstrate that public and private actors
engaged in a conspiracy. This requires proof that the public and private
actors shared a common, unconstitutional goal.
2. The pleadings in such a conspiracy claim “must specifically present facts
tending to show agreement and concerted action.” Sigmon v. Community
care HMO, Inc., 234 F.3d 1121 (10th Cir. 2000).

However, a private party acting with a Public Official may be held liable under
§1983 if he or she is a “willful participant in joint activity with the State or
its agents.” Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). This includes

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Citizens outside the state or local government. (quoting Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970). . In order to properly
establish his/her claim, the plaintiff must allege facts indicating: 1. an agreement
between the private and public defendants to commit an illegal act; and 2. an actual
deprivation of constitutional rights.

It should always be remembered, however, that municipalities enjoy no

immunity for their constitutional torts. A municipality can be liable for a
violation of §1983 if one of its municipal official’s decisions constituted an
execution or implementation of official policy. Pembaur v.City of Cincinnati,
475 U.S. 469, 477-81, 106 S.Ct. 1292, 1297-99 (1986). To sustain a §1983 claim
under this test, the symbiotic relationship between the public and
private entities must involve the alleged constitutional violation. Patrick v.
Floyd Medical Center, 201 F.3d 1313 (11th Cir. 2000).

The Supreme Court, in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d
396 (1982), finally established an objective standard for determining qualified immunity.
In Harlow the Supreme Court held that, “government officials performing
discretionary functions generally are shielded 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.” Id. At 457
U.S. 818, 102 S.Ct. 2738.

A municipal corporation is subject to virtually absolute control of the

state legislature as to the exercise of its powers and the organization of
its government, and as to its corporate existence, except as the
legislature may be restricted by the state constitution. Its territory or its
powers may be enlarged or diminished, and its corporate existence is created and may be
terminated, at the will of the state legislature. In other words, the agency of the
municipality for governmental purposes is a revocable agency. As a governmental
agency, a municipality has no vested rights which it may assert as against the state
nor has it any privileges or immunities under the Federal Constitution which it may
invoke in opposition to the will of its creator. The legislature, by establishing a
municipal corporation, does not divest the state of any of its sovereignty, absolve
itself from its right and duty to administer the public affairs of the entire state, or divest
itself of any power over the inhabitants of the district which it possessed
before the charter was granted. Municipal corporations are agents of
the state, having no vested rights. Atkin v Kansas, 191 US 207, 48 L Ed 148, 24
S Ct 124; Laramie County v Albany County, 92 US 307, 23 L Ed 552; Commonwealth
ex rel. Elkin v Moir, 199 Pa 534, 49 A 351; ; People ex rel. Raymond Community High
School Dist. v Bartlett, 304 Ill 283, 136 NE 654.

A case clearly arises under the Constitution for purposes of 28 U.S.C. § 1331 “federal
question jurisdiction” when the plaintiff claims, for example, that a government

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officer or employee, acting in his or her official capacity, injures the
plaintiff by taking an action that violates a provision of the Constitution
or by acting pursuant to an unconstitutional statute. The federal question
jurisdiction of the district courts also encompasses causes of action created by
federal statutes, such as 42 U.S.C. § 1983, which explicitly authorizes a private
remedy for acts that are taken under color of state law and violate
rights secured by federal law. See Grable and Sons Metal Products v. Darue
Engineering and Manufacturing, 545 U.S. 308, 312 (2005).

In such cases, federal law both creates the cause of action, supplying the
underlying substantive rules that govern defendants’ conduct, and
authorizes plaintiffs to enforce the rights created.

As Justice Stevens remarked for the Court in an opinion that canvassed § 1331
jurisprudence, “[t]he ‘vast majority’ of cases that come within this grant of jurisdiction
are covered by Justice Holmes’s statement (in American Well Works v. Layne and Bowler
Co.) that a ‘suit arises under the law that creates the cause of action.’” A civil
action based on federal common law also arises under the laws of the
United States for the purpose of jurisdiction under § 1331. Illinois v. City
of Milwaukee, 406 U.S. 91 (1972).With rare exceptions, (See Shoshone Mining v.
Rutter, 177 U.S. 505 (1900), then, when a federal law creates the claim
and the rules of decision governing it, federal jurisdiction
exists. Mims v. Arrow, 132 S. Ct. 740, 748-49 (2012). The more difficult question is
the converse: when, if ever, does federal question jurisdiction exist when the claim is
presented under state law?  A recent and colorfully written First Circuit decision refers
to these cases as potentially involving "embedded" federal questions. Rhode Island
Fishermen's Alliance v. Rhode Island Department of Environmental Management, 583
F.3d 42, 48 (1st Cir. 2009).

Merrell Dow Pharmaceuticals  Incorporated v. Thompson, 478 U.S. 804, 808 (1986)
(quoting Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 8–
9 (1983) (which in turn quoted American Well Works Co. v. Layne and Bowler Co., 241
U.S. 257, 260 (1916) (suit for damages to business allegedly resulting from slanderous
accusations that plaintiff had infringed defendant’s patent arises under state law even
though federal patent law was an ingredient to the claim).

Decision by the Policy Maker

1. In order to prevail on a claim against a municipality under § 1983 based on acts of a

public official, a plaintiff must prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4)

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damages; and (5) that
an official policy of the municipality caused
the constitutional injury.
2. The official policy element can only be satisfied where a plaintiff proves that a
municipal policy of some nature caused a constitutional tort. A
municipality may not be found liable simply because one of its employees committed
a tort.
3. A municipality cannot be made liable under § 1983 for acts of its employees by
application of the doctrine of respondeat superior. A plaintiff must demonstrate
that, through its deliberate conduct, the municipality was the moving
force behind the alleged injury.
4. A plaintiff may hold a municipality liable for a single decision by a municipal
policymaker. To do so, the plaintiff must show that the official had final
policymaking power, and the challenged actions must be within that
official’s area of policymaking authority.
5. An official has final authority if his decisions, at the time they are made, may
fairly be said to represent official policy. Whether an official has final policymaking
authority is a legal question, determined on the basis of state law. The critical inquiry
is not whether an official generally has final policymaking authority; rather, the court
must specifically determine whether the government official is a final policymaker with
respect to the particular conduct challenged in the lawsuit.

Punitive Damages
In Smith v. Wade, the Supreme Court held that Section 1983 authorizes the
award of punitive damages against state or local officials in their
individual capacity. Smith v. Wade, 461 U.S. 30 (1983). The Court suggested that
punitive damages may be awarded when an official’s conduct is malicious,
intentional, or recklessly or callously indifferent to protected rights. (Id.
at 36 n.5; Newport v. Fact Concerts, 453 U.S. 247, 269-70 (1981) (holding that punitive
damages under Section 1983 are not available against a governmental entity but only
against the responsible officials sued in their individual capacity). See also Kolstad v.
Am. Dental Ass'n, 527 U.S. 526, 535-36 (1999)). This test focuses on the state of mind
of the defendant. Kolstad, 527 U.S. at 535-39. While outrageous or egregious conduct
may provide evidence of the requisite state of mind, the conduct need not be egregious
or outrageous to justify an award of punitive damages. Id. at 538.
The determination of whether to award punitive damages once a
showing of malicious or recklessly indifferent conduct is made rests
within the discretion of the jury or judge (in a jury-waived case). Fairley v.
Jones, 824 F.2d 440 (5th Cir. 1987) When jury instructions properly require the
plaintiff to prove reckless or callously indifferent conduct, they need not require a
finding of “outrageous” or “extraordinary” conduct at the same time. (Kolstad, 527
U.S. at 535-39. Although Kolstad arose under Title VII, the standard for punitive
damages under Title VII (and Title I of the Americans with Disabilities Act) is, pursuant
to 42 U.S.C. § 1981a(b)(1), identical to the Section 1983 standard).

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Courts repeatedly have upheld punitive damage awards against public officials for
discriminatory employment practices, Hardeman v. City of Albuquerque, 377 F.3d
1106 (10th Cir. 2004) (police brutality, DiSorba v. Hoy, 343 F.3d 172 (2d Cir. 2003)
Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997) (collecting cases); Garrick v. City &
County of Denver, 652 F.2d 959 (10th Cir. 1981), and unlawful searches and seizures.
Manganiello v. City of New York, 2010 U.S. App. LEXIS 15156 (2d Cir. Jul. 23, 2010)
(unlawful seizure); Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir. 2008)
(unlawful seizure); Rogers v. City of Kennewick, 304 Fed. Appx. 599 (9th Cir. 2008)
(unlawful seizure); Morgan v. Woessner, 997 F.2d 1244 (9th Cir. 1993) (unlawful
service); Creamer v.Porter, 754 F.2d 1311 (5th Cir. 1985) (unlawful search); Clark v.
Beville, 730 F.2d 739 (11th Cir. 1984) (arrest without probable cause); Smith v. Heath,
691 F.2d 220 (6th Cir. 1982) (unlawful arrest). Courts have also upheld awards for
prisoner mistreatment, McKinley v. Trattles, 732 F.2d 1320 (7th Cir. 1984); Hendrickson
v. Cooper, 589 F.3d 887 (7th Cir. 2009); Stokes v. Delcambre, 710 F.2d 1120 (5th Cir.
1983); Furtado v. Bishop, 604 F.2d 80 (5th Cir. 1979), including deliberate indifference
to medical needs, McKinley v. Trattles, 732 F.2d 1320 (7th Cir. 1984); Hendrickson v.
Cooper, 589 F.3d 887 (7th Cir. 2009); Stokes v. Delcambre, 710 F.2d 1120 (5th Cir.
1983); Furtado v. Bishop, 604 F.2d 80 (5th Cir. 1979), violations of the right to
procedural due process, White v. McKinley, 605 F.3d 525 (8th Cir. 2010); Washington
v. Kirksey, 811 F.2d 561 (11th Cir. 1987); Busche v. Burkee, 649 F.2d 509 (7th Cir.
1981); Hardeman v. City of Albuquerque, 377 F.3d 1106 (10th Cir. 2004), and
violations of First Amendment rights. See cases compiled in Jones v. City of Key West,
679 F. Supp. 1547 (S.D. Fla. 1988), Punitive damages may be awarded even
when the plaintiff suffers only nominal damages from a deprivation of
federal rights. Romanski v. Detroit Entm’t, 428 F.3d 629, 645-50 (6th Cir. 2005)
(approving punitive damages of $600,000 where only $279.05 in compensatory damages
were awarded); Williams v. Kaufman County, 352 F.3d 994, 1016 (5th Cir. 2003)
(approving $15,000 in punitive damages on a nominal damages award of $100); Cush-
Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001) (Title VII); Alexander v.
Riga, 208 F.3d 419, 430-31 (3d Cir. 2000) (Fair Housing Act); Green v. McKaskle, 788
F.2d 1116, 1124 (5th Cir. 1986). However, if a punitive damage award is “grossly
excessive” in relationship to the state’s legitimate interest in punishing and deterring
unlawful conduct, it runs afoul of substantive due process and may be reduced or
reversed on appeal. Philip Morris USA v. Williams, 549 U.S. 346, 353-54 (2007)
(punitive damages based in part on harm to non-parties are takings without due process);
BMW of N. Am. v. Gore, 517 U.S. 559 (1986); Honda Motor Co. v. Oberg, 512 U.S.
415, 430-32 (1994). Recently, in State Farm Mutual v. Campbell, 538 U.S. 408, 425
(2003), the Court suggested that “few awards exceeding a single-digit ratio between
punitive and compensatory damages, to a significant degree, will satisfy due process.”
The Court did, however, recognize that where the compensatory damages were very
small, a higher ratio might be necessary. See, e.g., Romanski, 426 F.3d at 645-50;
Williams, 352 F.3d at 1016.

Page 33 of 60
Elements of a Crime
Every crime is statutorily defined by a list of elements. If a prosecutor persuades a jury
(or a judge), beyond a reasonable doubt, that each of the elements of a
crime has been met, the accused must be found guilty. If the elements have
not been met or if reasonable doubts remain, the accused must be
found not guilty. The elements of a crime typically include (1) a physical act
(or omission), (2) the intent to commit the act, and (3) causation, i.e., the act and
the intent causing or resulting in a violation of the law.

Taking has been defined as entering upon private property for more than a
momentary period and, under the warrant or color of legal authority,
devoting it to a public use, or otherwise informally appropriating or injuriously
affecting it in such a way as substantially to oust the owner and deprive him of
all beneficial enjoyment thereof. State of Florida, Department of Health and
Rehabilitative Services v. Scott, 418 So.2d 1032 (Fla. 2nd DCA 1982); Schick v. Florida
Department of Agriculture, 504 So.2d 1318 (Fla. 1st DCA 1987), rev. denied, 513 So.2d
1060 (Fla. 1987). In VLX Properties, Inc. v. Southern States Utilities, Inc., So.2d (Fla.
5th DCA 2000) (opinion withdrawn on grant of rehearing), the court held that these
elements should be applied in the disjunctive rather than the conjunctive. Thus a
taking under Schick may occur when the first three elements are established or
when the last element is established. See also Bakus v. Broward County, 634 So.2d
641, 642 (Fla. 4th DCA 1993), rev. denied, 649 So.2d 232 (Fla. 1994).

Larceny is an offense against the right of property, or more specifically, a

criminal trespass upon the right of possession. Criminal sanctions are applied to
those who commit larceny, in order to protect the general right of property as well as
individual proprietary rights, and because larceny is deemed to be inherently a
wicked and criminal act. Carlos v State, 155 Fla 740, 21 So 2d 537, cert den 326 US
722, 90 L Ed 428, 66 S Ct 27; Fitch v State, 135 Fla 361, 185 So 435, 125 ALR 360;
People v Odenwald, 104 Cal App 203, 285 P 406, hear den by sup ct as reported in 104
Cal App 211, 286 P 161; Ray v Commonwealth, 230 Ky 656, 20 SW2d 484, 66 ALR
1297.

A person may not be evicted from a residence without post-judgment notice and the
opportunity to be heard and post-deprivation remedies of any sort would be
inadequate to redress an unconstitutional eviction in light of the paramount
importance of the plaintiff’s interest in maintaining possessory right to his place of
residence. Eviction has traditionally involved greater procedural safeguards than those
related to less severe deprivations; an individual’s immediate loss of possession of his or
her home has greater adverse consequences than the loss of personal property or even a
portion of an individual’s wages. Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007).

Page 34 of 60
The Florida Constitution provides that no person shall be deprived of
life, liberty, or property without due process of law (Fla Const Art I § 9).
Thus, the Fourteenth Amendment to the United States Constitution prohibits state action
which would deprive any person of life, liberty, or property without due process of law
and the Florida Constitution imposes similar restraints on the state. Cash v Culver (Fla)
122 So 2d 179 (1960).

The guaranty of due process of law which is stated in the Fifth Amendment binds the
federal government, while that stated in the Fourteenth Amendment binds the states;
and the restraint imposed upon legislation by the due process clause of the Fifth and
Fourteenth Amendments is the same. Betts v Brady, 316 US 455, 86 L Ed 1595, 62 S Ct
1252 (ovrld on other grounds Gideon v Wainwright 372 US 335, 9 L Ed 2d 799, 83 S Ct
792, 23 Ohio Ops 2d 258, 93 ALR2d 733, on remand (Fla) 153 So 2d 299); Georgia
Power Co. v Decatur, 281 US 505. 74 L Ed 999, 50 S Ct 369; Green v Frazier, 253 US
233, 64 L Ed 878, 40 S Ct 499; Jones v Buffalo Creek Coal & Coke Co., 245 US 328,
62 L Ed 325, 38 S Ct 121; Brushauber v Union P. R. Co., 240 US 1, 60 L Ed 493, 36 S
Ct 236.

Under the due process clause of the Fourteenth Amendment to the United States
Constitution, state action affecting property must generally be accompanied by
notification of that action; in such circumstances, an elementary and fundamental
requirement of due process, in any proceeding which is to be accorded finality, is notice
reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and to afford the parties an opportunity to present their objections;
the focus is on the reasonableness of the balance between the interest of the state and the
individual interest sought to be protected by the Fourteenth Amendment; whether a
particular method of notice is reasonable depends upon the particular circumstances.
Tulsa Professional Collection Services, Inc. vs. Pope (1988, US) 99 L Ed 2d 565, 108 S
Ct 1340.

All state governmental powers are subject to the limitations imposed by the
state constitution and applicable provisions of the Federal Constitution.
Gray v Moss, 115 Fla 701, 156 So 262; Whitaker v Parsons, 80 Fla 352, 86 So 247;
Board of Com'rs v Forbes Pioneer Boat Line, 80 Fla 252, 86 So 199, revd on other
grounds 258 US 338, 66 L Ed 647, 42 S Ct 325

"Abuse of process" may be generally defined as the misuse of a legal process, whether
criminal or civil, against another primarily to accomplish a purpose for which the process
is not designed. Bothmann v Harrington (Fla 3rd DCA ) 458 So 2d 1163, 9 FLW 2328
(1984). Abuse of process involves the use of criminal or civil legal process against
another primarily to accomplish a purpose for which it was not designed. See Cline v.
Flagler Sales Corp., 207 So.2d 709 (Fla. 3d DCA 1968).

The crucial language for our purposes was that which guaranteed all citizens "the same
right, in every State and Territory in the United States, . . . to inherit, purchase, lease, sell,

Page 35 of 60
hold, and convey real and personal property . . . as is enjoyed by white citizens . . . ." To
the Congress that passed the Civil Rights Act of 1866, it was clear that the right to do
these things might be infringed not only by "State or local law" but also by "custom, or
prejudice." Thus, when Congress provided in 1 of the Civil Rights Act that the right to
purchase and lease property was to be enjoyed equally throughout the United States by
Negro and white citizens [392 U.S. 409, 424] alike, it plainly meant to secure that
right against interference from any source whatever, whether
governmental or private. Jones v. Mayer Co., 392 U.S. 409 (1968).

"The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections." West Virginia Board of Education v.
Barnette, 319 U.S. 624, 638 (1943).

Where an individual, either for profit or otherwise, uses his private property for a
humane and lawful purpose, and where a state regulating authority makes no initial
and conclusive showing that such use adversely affects the public welfare, no
grounds of enforcement by such regulatory authority exists. State v
Picciochi, 16 Ohio Misc 196, 45 Ohio Ops 2d 147, 241 NE2d 407.

“It is elementary that the meaning of a statute must, in the first instance, be sought in
the language in which the act is framed, and if that is plain, and if the law is within the
constitutional authority of the law-making body which passed it, the sole function of
the court is to enforce it according to its terms. Lake County v. Rollins, 130
U.S. 662, 670, 671; Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 33; United States
v. Lexington Mill and Elevator Co., 232 U.S. 399, 409; United States v. Bank, 234 U.S.
245, 258.” See Carminetti v. U.S., 242 U.S. 470, 485, 489-493 (1916).

A distinction has been made between a net income tax and a gross income tax, the view
being taken that while a tax upon the net income from a particular kind of property is not
a tax upon the property from which the income is derived, nor subject to the
constitutional limitations that affect property taxes, a tax upon the gross income
from particular kinds of property constitutes in effect a tax upon the
property itself. Redfield v Fisher, 135 Or 180, 292 P 813, 295 P 461, 73 ALR 721,
cert den 284 US 617, 76 L Ed 526, 52 S Ct 6; Welch v Henry, 223 Wis 319, 271 NW
68, 109 ALR 508.

“To convey a title the seller must himself have a title to the property which is the
subject of the transfer" 3 B. & C. 47; 3 Burr. 1516; 5 T. R. 683; 7 Bing. 284; 7 Taunt.
265, 278; 13 East, 509; Bouv. Inst. Index, h.t.

Page 36 of 60
PROPERTY. (Bouviera 1856, 6th Edition).
The right and interest which a man has in lands and chattels to the exclusion of others. 6 Binn. 98; 4
Pet. 511; 17 Johns. 283; 14 East, 370; 11 East, 290, 518. It is the right to enjoy and to dispose of certain
things in the most absolute manner as he pleases, provided he makes no use of them prohibited by
law.

Examples of Title 42 USC §§1983 and 1985 Law suits

In The District Court of the United States
Eastern District of Michigan

 
Michael Wyckstandt, ) Case Number
Private Citizen, )  
  )  
Plaintiff ) Verified Complaint and
  ) Petition for Declaratory Judgment
vs. ) and For Preliminary Injunction
  )
GOODLAND TOWNSHIP )
A Municipal Corportion, )
  )
Defendant )
 
 
 
Parties
 
1.                  The Plaintiff, Michael Wyckstandt (Herein after Plaintiff) is a Private
Citizen of Michigan “state” and owns a piece of land situated within, but outside, the
limits and jurisdiction of Goodland Township, Lapeer County, Michigan “state” and can
sue or be sued.
 
2.                  The Defendant, Goodland Township and other interested Parties (Herein
after Defendant or Defendants collectively) is a political subdivision of the “State” of
Michigan, Lapeer County, and can sue and be sued.
 
3.                  Defendant Ronald Cischke, in his private capacity, (Herein after Defendant
or Defendants collectively) is a citizen of Goodland Township, Lapeer County, State of
Michigan, and can sue and be sued.
 
4.                  Defendant Anna Marie Calianno, in her private capacity, (Herein after
Defendant or Defendants collectively) is a citizen of Goodland Township, Lapeer
County, State of Michigan, and can sue and be sued.
 

Page 37 of 60
5.                  Defendant Curtis E. Stowe, in his private capacity, (Herein after Defendant
or Defendants collectively) is a citizen of Goodland Township, Lapeer County, State of
Michigan, and can sue and be sued.
 
Venue
  
6.                  All parties are either owners on, or a political subdivision of the Eastern
District, State of Michigan, Lapeer County, therefore, venue is proper.
 
 
Jurisdiction
 
7.                  Want of jurisdiction of this Court is invoked pursuant to 42 U.S.C. §1983,
28 U.S.C. §2201, §2202, 28 U.S.C. §1331, 1343(a), and 28 U.S.C. § 1367(a).
 
 
Facts of the Case
 
8.                  Michael Wyckstandt Plaintiff, purchased a piece of private property situated
on Goodland Township, Lapeer County, Michigan state. Plaintiff erected a building for
the use of husbandry and for the private use of Plaintiff. The building is at all times, no
different than any other building in the local area.
 
9.                  No Private Citizen has complained about the building from the local area.
As part of the Plaintiff’s husbandry activities, the Plaintiff purchases kilned dried lumber
from a local supplier and uses Plaintiff’s tools of husbandry to make the kilned dried
lumber into a resalable product. At all times the product is owned by the Plaintiff.
 
10.              On or about the 24th, day of April, 2001 the Defendants adopted zoning
violation procedures.

11.              On or about the 8th, day of May, 2001 the Defendants filed and served an
Ordinance Violation complaint Form on Plaintiff. The proposed motion regarding zoning
violation was motioned and seconded by Defendants.
 
12.              On or about the 26th day of October, Curtis E. Stowe (herein after Stowe)
flew over Plaintiff’s property and took pictures.
 
13.             On the 17th, day of February, Stowe did post a red tag notice on property of
the Plaintiff.
 
14.             On the 7th, day of March, 2002, Stowe sent a letter to Plaintiff alleging that
Plaintiff could be in violation of Township building ordinance as adopted by state law.
[Which also stated, civil and/or criminal sanctions could be awarded against Plaintiff.]
 

Page 38 of 60
15.              On the 7th, day of March, 2002 the Plaintiff sent to the Defendants a letter in
response to the red tag notice of 02/17/02 and letter of 03/07/02. In that letter the Plaintiff
herein, demanded a hearing on the matter, pursuant to the adopted procedure prescribed
by the Defendants. No hearing was ever granted to the Plaintiff to date.
 
16.              On the 13th, day of March, 2002 the Plaintiff sent a second letter to
Defendants for the same reasons stated above and no hearing was granted to Plaintiff to
date.
 
17.              On the 13th, day of March, 2002 a third letter was sent to Defendants by
Plaintiff demanding a hearing on the issue at hand and no hearing was granted by
Defendant.
 
18.              Administrative remedy has been exhausted.
 
19.              On the 3rd, day of March, 2002 the Defendant issued a civil infraction for the
non-compliance of not applying for and receiving a building permit. From this civil
infraction a judicial court action was commenced in the courts of Lapeer County.
 
20.              On the 12th, day of April, 2002 the Plaintiff sent to the Defendants a 3rd and
final notice, demanding an administrative hearing on the matters at hand.
 
21.              In retaliation to Plaintiff demanding an administrative hearing, the
Defendants issued a second civil infraction for the noncompliance of applying for and
receiving a building permit.

22.             The Defendant has not shown that the building on Plaintiff’s property is in
any way, will or has diminish the rights of the joining property owners or will be harmful
to the public or is a public nuisance.
 
First Cause of Action--Declaratory Judgment and Federal Question
 
23.             Plaintiff adopts and re-alleges Paragraphs 1 through 21 of this complaint as if
fully set forth herein.
 
24.              The Defendants did on various occasions in the months of March and April,
2002 enforce ordinances that have not been properly enacted by the State of Michigan to
enter upon, take property, extinguish rights of the Plaintiff, to the bitter end of getting an
order from the court to remove the building, now a part of Plaintiff’s property. The
Building code and sub-parts of the building code enforced by the Defendants has not
been enacted by the State of Michigan according to the provisions of Article 4, section 23
of the Michigan Constitution.
 
25.             The Defendants, Goodland Township, Curtis E. Stowes, Ordinance
Enforcement Officer, on or about February, March, and April, 2002 did trespass upon

Page 39 of 60
Plaintiff’s rights, without due process of law, without probable cause and without a
proper warrant, to deprive the Plaintiff of his rights and rights to property.
 
26.             To make a civil infraction out of the use of, and the right to, private property,
is an arbitrary and capricious abuse of legislative discretion, without due process of law,
such conduct is a direct assault on the Plaintiff’s rights without consideration and in
disregard of the facts.
 
 
27.              Husbandry is an absolute in the careful management of resources, in the case
here, the Plaintiff has erected a building and placed inside the building certain equipment
for the re-manufacturing of lumber. The Implements of Husbandry (i.e. Planner, fork lift
and other equipment) are beneficial to the owner and the welfare of the Plaintiffs family.
If the Plaintiff had to move the operation to another location, in this case, further away,
the cost of the operation becomes unbearably expensive and thus an un-repairable
damage and hardship, with economic disaster.
 
28.             On or about October 23, 2003 the Defendants did take private property
belonging to Plaintiff, under the guise of enactment of state laws and township
ordinances, among others, for public use without just compensation.
 
29.              1st Federal Question: When in the course of the business affairs of
Defendant, coming against the rights belonging to Plaintiff, is the Defendants subject to
Defendants Administrative procedures? Plaintiff contends yes, but Defendant did not.
 
30.              Therefore, the Plaintiff is entitled to injunctive relief against Defendants, to
enjoin the Defendant from enforcing un-constitutional actions against Plaintiff.
 
31.              2nd Federal Question. Must laws enacted by the State of Michigan and
adopted by the Defendant, be in compliance with Article 4 section 23 of the Michigan
Constitution? Plaintiff contends yes, but said laws have not been properly enacted by the
state for the Defendant to adopt.
 
32.             Therefore, the Plaintiff is entitled to injunctive relief against Defendant, to
enjoin the Defendant from enforcing un-constitutional laws against Plaintiff.
 
33.              3rd Federal Question. Must the Defendant comply with the administrative
procedures act of the State of Michigan? The Plaintiff contends yes, but Defendant did
not.

34.             Therefore, the Plaintiff is entitled to injunctive relief against Defendant, to

enjoin the Defendant from enforcing un-constitutional actions against Plaintiff.
 
 
Wherefore, plaintiff requests judgment against defendants.
 

Page 40 of 60
 Second Cause of Action--Injunction
 
35.             Plaintiff adopts and re-alleges Paragraphs 1 through 33 of this complaint as if
fully set forth herein.
 
36.             Plaintiff brings this cause of action for an injunction enjoining defendants
from further enforcing Defendant’s improper Ordinance and ordering Defendants not to
enter upon the Plaintiffs property, situated on Defendant Township, to enforce an order to
remove the building on Plaintiff’s property.
 
37.              Defendants contend that Defendants building ordinance is constitutional and
insist that they will continue to enforce it against Plaintiff and Plaintiff has no other
remedy at law.
 
38.             Plaintiff has no adequate remedy at law, in that, an action for damages would
not compensate Plaintiff for the loss of Plaintiff’s constitutional rights as set forth in this
complaint.
 
39.             Therefore, the Plaintiff is entitled to injunctive relief against Defendant, to
enjoin the Defendant from enforcing un-constitutional laws against Plaintiff.

 
Third Cause of Action–42 USC §1983
 
40.             Plaintiff adopts and re-alleges Paragraphs 1 through 38 of this complaint as if
fully set forth herein.
 
41.             Defendant Ronald Cischke, in his private capacity (Herein After Cischke) did
on various occasions mentioned above, move against Plaintiff in violation of Defendant
Township’s policies and procedures to the bitter end of getting an order from a court of
Lapeer County. In violation of Plaintiff’s due process rights under Goodland Township’s
administrative procedures.
 
42.              Therefore, this cause of action is actionable under 42 USC §1983 for
damages in Cischke’s private capacity in the amount of $100,000.00.

Forth Cause of Action–42 USC §1983

 
43.             Plaintiff adopts and re-alleges Paragraphs 1 through 41 of this complaint as if
fully set forth herein.
 
44.             Defendant Anna Marie Calianno, in her private capacity (Herein After
Calianno) did on various occasions mentioned above, move against Plaintiff in violation

Page 41 of 60
of Defendant Township’s policies and procedures to the bitter end of getting an order
from a court of Lapeer County. In violation of Plaintiff’s due process rights under
Goodland Township’s administrative procedures.
 
45.              Therefore, this cause of action is actionable under 42 USC §1983 for
damages in Calianno’s private capacity in the amount of $100,000.00.

 
Fifth Cause of Action–42 USC §1983
 
46.             Plaintiff adopts and re-alleges Paragraphs 1 through 44 of this complaint as if
fully set forth herein.
 
47.             Defendant Curtis E. Stowe, in his private capacity (Herein After Stowe) did
on various occasions mentioned above, move against Plaintiff in violation of Defendant
Township’s policies and procedures to the bitter end of getting an order from a court of
Lapeer County. In violation of Plaintiff’s due process rights under Goodland Township’s
administrative procedures.
 
48.              Therefore, this cause of action is actionable under 42 USC §1983 for
damages in Stowe’s private capacity in the amount of $100,000.00.

Page 42 of 60
 Sixth Cause of Action–42 USC §1983
 
49.             Plaintiff adopts and re-alleges Paragraphs 1 through 47 of this complaint as if
fully set forth herein.
 
50.             Defendant Goodland Township, (Herein After Township) did on various
occasions mentioned above, move against Plaintiff in violation of Defendant Township’s
policies and procedures to the bitter end of getting an order from a court of Lapeer
County. In violation of Plaintiff’s due process rights under Goodland Township’s
administrative procedures.
 
51.              Therefore, this cause of action is actionable under 42 USC §1983 for
damages in Township’s capacity of Employer for the private capacity Defendants
mentioned above, in the amount of $300,000.00.
 
52.              Wherefore, the Plaintiff asks this court to grant the above relief in the amount
of $600,000.00 and,
 
53.             Award plaintiff the costs of this action; and
 
54.             Award plaintiff any other and further relief that the court deems just and
proper.
 

Dated this Day of 2003.

 

_
Michael Wyckstandt
 
 

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ 

Page 43 of 60
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF (Any State)

CIVIL ACTION:
 
John Smith, Jr
 
Plaintiff
 
v.
 
Pocahontas "John's Wife" Smith a/k/a Pocahontas Maiden
E. Chouteau Merrill, in her individual and professional capacities,
LaidBack Attorney, Jr., in his individual and professional capacities,
Sleezy "Mumbles" Attorney, in his individual and professional capacities,
StupidButFamous Attorney, in his individual and professional capacities,
 
Defendants
_______________________________

 
COMPLAINT AND JURY DEMAND ON ALL COUNTS
 
(Plaintiff incorporates by reference the attached exhibits with the same force and effect as
if herein set forth)
 
INTRODUCTION
 
This action arises out of Defendants' conspiracy to commit fraud upon John Smith, Jr.
["Smith"] in order to deprive him of his property.
 
The causes of action brought are (1) violation of 42 U.S.C. sec. 1983 (due process and
equal protection clauses), (2) violation of 42 U.S.C. sec. 1985(3) (conspiracy), (3) fraud
by omission and nondisclosure, (4) common law conspiracy, (5) negligent infliction of
emotional distress, and (6) intentional infliction of emotional distress.
 
 
JURISDICTION
 
1. Jurisdiction of this court arises under 28 U.S.C. secs. 1331, 1337, 1343(a), and
1367(a); 42 U.S.C. secs. 1983 (civil action for deprivation of rights), 1985(3) (conspiracy
to interfere with civil rights), 1988 (proceedings in vindication of civil rights); 18 U.S.C.
1341; 18 U.S.C. 1511.

Page 44 of 60
 2. Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a),
and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers
v. Gibbs, 383 U.S. 715 (1966).
 
PARTIES
 
3. Your Plaintiff, John Smith, Jr. ["Smith"], who resides at XX XXXXXX Street,
Boston, Suffolk County, Massachusetts, was the appellant in Pocahontas Smith v. John
Smith, Jr., entered into the docket as Civil Action Number 01-J-000 in the single justice
session of the Appeals Court (McHugh, J.) and is the defendant husband and father in
Pocahontas Smith v. John Smith, Jr., entered as Docket Number 00D-0000-DV1 in the
Suffolk County Division of the Probate & Family Court Department of the Trial Court of
the Commonwealth of Massachusetts.
 
4. Defendant Pocahontas "John's Wife" Smith ["Pocahontas"], a/k/a Pocahontas
Maiden, who is a natural person, a prestigious-Law-School educated attorney, and
member of the Massachusetts and XXXX Bars, was residing at either XX XXXXXX
Street, Boston, Suffolk County, Massachusetts, or XX XXXXX Drive, XXXXXX,
XXXXXX County, XXXX 00000, United States of America, at all times relevant to this
Complaint.
 
5. Defendant E. Chouteau Merrill ["Merrill"]], who is a natural person, a Harvard-
Law-School-educated attorney, and member of the Massachusetts Bar, was employed by
the law firm known as Brown Rudnick Freed & Gesmer, and has been residing at 370
East Street, Dedham, Norfolk County, Massachusetts, United States of America, at all
times relevant to this Complaint.
 
Although Merrill is currently a sitting justice in the Suffolk County Probate & Family
Court, which is a division of a department of the trial court of the Commonwealth of
Massachusetts, the activities complained-of in this Complaint were activities of Merrill
prior to being nominated for and appointed to the judgeship.
 
6. Defendant LaidBack Attorney, Jr. ["LaidBack"]], who is a natural person, an
attorney and member of the Massachusetts Bar, is employed by the law firm known as
xxxxxxx LaidBack, LLP, XXXXXXXXXXXX, Boston, Suffolk County, Massachusetts
02114, and has been a resident of Massachusetts, United States of America, at all times
relevant to this Complaint.
 
7. Defendant Sleezy Mumbles ["Mumbles"], who is a natural person, an attorney and
member of the Massachusetts Bar, is employed by the law firm known as XXXXXXX
Street, Suite 000, Boston, Massachusetts 02114-1804, and has been a resident of
Massachusetts, United States of America, at all times relevant to this Complaint.
 
8. Defendant StupidButFamous Attorney, who is a natural person, an attorney and
member of the Massachusetts Bar, is employed by the law firm known as Law Office of

Page 45 of 60
StupidButFamous Attorney, and has been residing at XXXXXXXXXXX County,
Massachusetts, United States of America, at all times relevant to this Complaint.

 
FACTS
 
9. On 14 March 2000, Pocahontas's prior counsel, E. Chouteau Merrill ["Merrill"],
wrote Smith's prior counsel stating the "[she] would like to get the . . . property in
YYYYYY appraised," and asked, "Shall we do this jointly or do you want to each hire an
appraiser?" [Exh. A].
 
10. On 5 April 2000, Pocahontas signed a Financial Statement under the pains and
penalties of perjury, and Merrill vouched by countersigning that that which Pocahontas
declared in the Financial Statement was true and correct. In that Financial Statement,
Pocahontas swore falsely (a) that she purchased the YYYYYY property in 1992, (b) that
the then-current assessed value of the property, last assessed in 1999, was $300.000, and
(c) that the fair market value was $500,000 [Exh. B].
 
11. Pocahontas never purchased the YYYYYY property, the YYYYYY property was
never assessed at $300,000, and the fair market value was never half-a-million dollars.
 
12. Invoices from the law firm formerly known as Brown Rudnick Freed & Gesmer
["BRFG"] show that on 31 July 2000, Merrill phoned FSI [Exh. C].
 
13. Shortly thereafter John Smith, Sr., allowed FSI access to the property at
yyyyyyyyyyyyyyyyyy,YYYYYYYYY, Massachusetts.
 
14. On 7 August 2000, ABC reported that the estimated fair market value was
$188,000 [Exh. D].
 
15. From the redactions in BRFG's invoice, it can be inferred that ABC and Merrill
were in communication on the 4 and 7 August 2000 [Exh. E].
 
16. On 7 August 2000, Merrill, on Pocahontas's behalf, offered a settlement which she
wrote should not be disclosed to the court without the consent of both parties. Therefore,
Smith attaches hereto this pleading the offer solely for the purpose of showing that
therein Pocahontas and Merrill ascribed, circumstantially, to the YYYYYY property the
value of $390,000 [Exh. F].
 
17. On 8 August 2000, but a day after the FSI appraiser found the value to be
$188,000, Merrill, in Pocahontas's Pretrial Memorandum, wrote in paragraph A (on page
3) that Pocahontas believed that the YYYYYY property had a fair market value of
$500,000 and that an appraisal was pending [Exh. G].
 
18. On 8 August 2000, Pocahontas once again respectively signed under pains and
penalties of perjury and Merrill once again vouched for Pocahontas's truthfulness and

Page 46 of 60
accuracy in the Financial Statement of that date and in which Pocahontas again swore
falsely (a) that she purchased the property in 1992, (b) that the then-current assessed
value of the property, last assessed in 1999, was $300.000, and (c) that the fair market
value was $500,000 [Exh. H].

19. According to the Town of YYYYYY, the Fiscal Year 2001 value of 00
YYYYYYYY Road was $193,400 [Exh. I].
 
20. The Probate & Family Court appointed HighPaid "StupidButFamous" Attorney as
Discovery Master on 9 March 2001 [Exh. J] and forbade Smith from conducting any
discovery without going through StupidButFamous.
 
21. StupidButFamous and Merrill were both members of the American Academy of
Matrimonial Lawyers and close friends who ....... AAML annual event which took place
on 00 00 0000.
 
22. During or around April 2001, Merrill promised to give Smith's counsel a copy of
the ABC appraisal.
 
23. Merrill told StupidButFamous that she applied for a judgeship.
 
24. Not having received from Merrill the ABC appraisal, Smith's counsel wrote
Merrill and the Discovery Master on 6 June 2001 informing both of them that the
document was not produced and was therefore still outstanding [Exh. K].
 
25. Both StupidButFamous and Merrill failed to respond to Smith's counsel letter of 6
June 2001.
 
26. In or around August of 2001, two more counsel -- LaidBack Attorney and Sleezy
"Mumbles" Attorney -- made their appearance on behalf of Pocahontas in the Probate &
Family Court at Suffolk.
27. During October 2001, Merrill withdrew –– without court action -- as Pocahontas's
counsel for the divorce action [Exh. L].
 
28. StupidButFamous did absolutely nothing on the Smith case until some time in
December 2001, after Merrill was sitting on the bench of the Probate & Family Court.
 
29. Faced with having Merrill on the bench and possibly sitting on his cases,
StupidButFamous did an 180-degree turn and thereafter made almost all decisions against
Smith's interests.
 
30. On 15 March 2002, Pocahontas, for the third time, again signed a Financial
Statement under the pains and penalties of perjury. Neither LaidBack nor Mumbles
signed the copy given to Smith's counsel, but it is assumed one or both of them vouched
for Pocahontas's truthfulness and accuracy and countersigned the Financial Statement
filed in court [Exh. M].

Page 47 of 60
 
31. On the Financial Statement of 15 March 2002, Pocahontas again swore falsely (a)
that she purchased the property in 1992 and (b) that both the then-current assessed and
fair market values were $300,000 [Exh. M].
 
32. According to the Town of YYYYYY Notice of Revaluation for Fiscal Year 2002,
the assessed value of 00 YYYYYYYY Road was $224,000 [Exh. I].
 
33. On 2 May 2002, Judge Lisa Roberts denied Smith's motion to compel Pocahontas
to produce the August 2000 FSI appraisal and further limited Smith's rights to discovery
[Exh. P].
 
34. In paragraph 2.6 of Discovery Master StupidButFamous's report dated 9 May 2002
[Exh. N, page 6], he reports that Pocahontas denied having copies of the appraisals, but
given that Merrill gave her file to Pocahontas's successor counsel, successor counsel's
statement that the appraisal did not exist could not be true.
 
35. On 6 May 2002, Smith's counsel caused a Keeper of the Records deposition
subpoena requesting the FSI file be produced by 8 May 2002.
 
36. The Fannie Mae section and the Supplemental Addendum of the appraisal are
attached hereto this pleading [Exh. O].
 
37. The May 2nd order gave a May 15th cut-off date for depositions AND gave
Pocahontas 5 days to produce medical releases and 10 days to produce documents.
 
38. By allowing Pocahontas those 5 and 10 days, respectively, in which to obey the
order, the medical releases were valueless to Smith: he would not be able to subpoena the
records when he received the releases.
 
39. Thus the court's act had to be based on gender discrimination, for there was no
other reasonable explanation for such an arbitrary and capricious order.
 
40. Similarly, Smith was deprived of the right to perform follow-up discovery on the
other documents to be produced within 10 days.

41. Ten days have passed but Pocahontas has not complied and .
 
42. The 2 May 2002 order was unclear and equivocal as well as violative of the equal
protection laws on the grounds of gender discrimination [Exh. P].
 
The May 2d order also never called out within itself the date "May 2."
 
43. On 9 May 2002, Pocahontas, Mumbles, and LaidBack have moved, with
StupidButFamous's assent and recommendation to the court to allow said motion, for

Page 48 of 60
Smith's counsel to be held in contempt and be sanctioned for subpoenaing the ABC
appraisal of 7 August 2000.
 
44. On 8 May 2002, Judge Lisa Roberts allowed Pocahontas's motion to quash Smith's
subpoena for ABC to produce the appraisal of August 2000.
 
45. On 9 May 2002, StupidButFamous recommended to Judge Lisa Roberts that
Smith be ordered to return any copy of the August 2000 FSI appraisal which he might
have received.
 

COUNT 1: VIOLATION OF 42 U.S.C. SEC. 1983

(DUE PROCESS AND EQUAL PROTECTION CLAUSES)
 
46. Plaintiff repeats and realleges and incorporates by reference the allegations in
paragraphs 1 through 45 above with the same force and effect as if herein set forth.
 
47. At all relevant times herein, Plaintiff had a right under the due process and equal
protection clauses of the state and federal constitutions not to be deprived of his
constitutionally protected interest in his property. U.S.C. Const. Amend. 14; M.G.L.
Const. Pt. 1, Art. 10.
 
48. At all times relevant herein, the defendants were state actors and their conduct was
subject to 42 U.S.C. secs. 1983, 1985, and 1988.
 
"Private persons, jointly engaged with state officials in the challenged action, are
acting `under color' of law for purposes of Section 1983 actions." Dennis v. Sparks. 449
U.S. 24, 27-28 (1980).
 
Such joint participation as when a state allows an ex parte attachment, or as here,
Smith contends, when the state allowed Pocahontas's motions precluding Smith from
conducting discovery, including but not limited to, getting access to the FSI appraisal,
constitutes "a sufficient nexus between state and individual to demonstrate state action
and permit a §§1983 suit against the individual who sought the attachment."
Cf. Gonzales-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000), citing
Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 ("a private party's joint participation
with state officials in the seizure of disputed property is sufficient to characterize that
party as a "state actor" for purposes of the Fourteenth Amendment").
 
49. The Trial Court allowed almost all of Pocahontas's motions to limit Smith's
discovery in the divorce case but denied almost all of Smith's motions to be allowed to
conduct discovery. [Exhs. L and P]
 
50. The only explanation is that the court was discriminating against Smith because of
his gender.
 

Page 49 of 60
51. By depriving the male Smith of his rights to equal protection and affording only
the female Smith her rights to equal protection, the Commonwealth insinuated itself into
the conspiracy and metamorphosed the individual actors into State actors.
 
52. Acting under the color of law, Defendants worked a denial of Smith's rights,
privileges, or immunities secured by the United States Constitution or by Federal law and
guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the Constitution of the
United States, to wit, they sought and got court orders based on their misrepresentations.
 
Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406
Mass. 43, 52 (1989).
 
52. As a result of Defendants' concerted unlawful and malicious conduct, Smith was
both deprived of his rights to equal protection of all the laws and to due process of law, of
his right to his property, and the due course of justice was impeded, in violation of the
Fourth, Fifth, and Fourteenth Amendments of the Constitution of the United States and
42 U.S.C. sec. 1983.
 
53. Smith was harmed, has incurred considerable legal debt which would not
otherwise have been incurred, and has suffered the loss of confidence in and feelings of
betrayal by the justice system, shock, and emotional scarring, all compensable as
emotional distress, and other damages.
 
The rule is well settled, however, that if the natural consequence of the wrongful act,
done willfully or with gross negligence, is mental suffering to the plaintiff, then that
element may be considered in assessing damages.
 
Stiles, 233 Mass. at 185, cites omitted. "Good faith and absence of malice in the
perpetration of such a palpable wrong to the plaintiff constitute no defense to the
defendants against the almost inevitable effect of their acts." Id.
 
WHEREFORE, Plaintiff demands judgment for the violation of his civil rights
against all the defendants, jointly and severally, for actual, general, special, compensatory
damages in the amount of $5,000,000 and further demands judgment against all
defendants, jointly and severally, for punitive damages in an amount to be determined by
the jury, plus the costs of this action, including attorney's fees, and such other relief
deemed to be just, fair, and appropriate.
 
"Punitive damages are recoverable in sec. 1983 suit where defendant's conduct is
motivated by an evil motive or intent, or where it involves reckless or callous indifference
to plaintiff's federally protected rights.” Smith v. Wade, 461 U.S. 30, 50-51 ((1983);
Clark v. Taylor, 710 F.2d 4, 14 (1st Cir. 1983). Miga, supra at 355.

Page 50 of 60
 COUNT 2: VIOLATION OF 42 U.S.C. sec. 1985(3) (conspiracy)
 
To state a claim under Section(s) 1985(3) a plaintiff must allege the existence of
(1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons,
directly or in-directly, of the equal protection of the laws or of equal privileges and
immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4)
either (a) an injury to person or property, or (b) a deprivation of a constitutionally
protected right or privilege. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). See
note 47, infra, re a class-based animus.
 
54. Plaintiff repeats and realleges and incorporates by reference the allegations in
paragraphs 1 through 53 above with the same force and effect as if herein set forth.
 
55. The conspiratorial purpose was financial.
 
56. On or around 5 April 2000 the first step in the conspiracy was taken by Pocahontas
when she decided to sign her name to the Financial Statement of that date.
 
57. By swearing under the pains and penalties of perjury that the assessed and fair
market values she ascribed to the real property at 00 YYYYYYYY Road, YYYYYY,
Massachusetts, were true and accurate, Pocahontas was perpetrating a fraud upon the
court, which if believed by the court would work a larceny upon Smith.

58. If Pocahontas's misrepresentations were persuasive and if Smith was given at least
half the equitable interest in the property, the court would have required Smith pay
Pocahontas $250,000, more than the actual fair market value for the entire property.
 
59. By vouching for Pocahontas's truthfulness and the accuracy of the values on
Pocahontas's Financial Statements, Merrill conspired with Pocahontas to deceive both the
court and Smith.
 
60. Within a day, however, of the August 2000 appraisal of the YYYYYY property
being performed by FSI, which came in lower than Pocahontas and Merrill might have
anticipated, they conspiratorially decided to deny that they received the appraisal.
 
61. Smith attempted since the winter of 2001 to get a copy of the FSI appraisal of the
YYYYYY property [Exh. K].
 
62. On 8 August 2001, Pocahontas and Merrill continued to misrepresent under the
pains and penalties of perjury to the court and to Smith the assessed and fair market
values of the YYYYYY property.
 
63. The scheme of the conspiracy was (1) to declare there was no appraisal, (2) to
misrepresent that the value was $500,000, rather than $188,000 and (3) to persuade the
court that their values were accurate, which would ultimately cause Smith to buy

Page 51 of 60
Pocahontas's alleged interest in the property at an amount $156,000 higher than that
which he would have to pay had the values been true and accurate.

 64. Pocahontas stood to profit financially by misrepresentating to the court; for

example, if the court divided the property 50-50 upon distribution of the marital estate
and if Smith wanted to buy Pocahontas out of the property, he would have to give
Pocahontas $250,000, rather than $94,000.
 
65. Pocahontas's intent was to permanently deprive Smith of his property.
 
66. During Spring 2001, Merrill made application for a judgeship.
 
67. During July 2001, Merrill was nominated by the Governor for a judgeship in
Probate & Family Court.
 
68. Mumbles made his appearance on or around 17 August 2001, and orally
represented to the Court that LaidBack was co-counsel but had a conflict that day.
 
69. Merrill's nomination was approved by the Governor's Council some time between
26 August 2001 and the Fall of 2001.
 
70. By the time Merrill was allowed by the court to withdraw de facto from the case
because of her nomination and approval to a judgeship, she forwarded the file --
approximately in the late Summer or Fall of 2001 -- to LaidBack and/or Mumbles,
Pocahontas's successor counsel [Exh. L].
 
71. LaidBack, Mumbles, and StupidButFamous stood to benefit by getting paid
handsomely by Pocahontas and to ingratiate themselves with Merrill, who had begun
sitting on the bench.
 
72. StupidButFamous's motive for his nonfeasance and then his misfeasance and
malfeasance was not only to ingratiate himself with both Merrill and the court newly
assigned to the Smith case but to benefit economically.
 
73. LaidBack and Mumbles then breached their professional duties by continuing to
conspire to commit fraud on both the court and Smith.
 
74. On 6 December 2001, when LaidBack met with Smith's counsel and
StupidButFamous in StupidButFamous's office, LaidBack misrepresented that the
appraisal did not exist [Exh. N].
 
75. Over Smith's female counsel's argument, StupidButFamous, setting aside the true
facts, chose to believe LaidBack, a male. There was no nondiscriminatory factual or legal
explanation for StupidButFamous believing one counsel over the other.
 

Page 52 of 60
76. On 15 March 2002, after Smith's counsel continued to seek a copy of that
appraisal, the fair market value, according to Pocahontas, of the YYYYYY property fell
magically to $300,000.
 
77. On 15 March 2002, either or both LaidBack and Mumbles conspired with
Pocahontas to continue to misrepresent the assessed and fair market values of the
YYYYYY property.
 
78. Faced with the real appraisal, LaidBack and Mumbles might have had some
misgivings which caused them to decrease the alleged fair market value of the property to
$300,000, which Pocahontas falsely swore under the pains and penalties of perjury was
the assessed value.
 
The YYYYYY property has never been assessed at $300,000, and until recently, was
always below $200,000.

79. Despite having a copy of the Notice of Revaluation of the YYYYYY property,
which showed the assessed values of the property in Fiscal Year 2000 to be $107,000 less
than the amount sworn-to by Pocahontas, and in Fiscal 2001, to be $76,000 less than that
sworn-to by her, LaidBack and Mumbles joined the conspiracy begun by Pocahontas and
Merrill.

80. On 15 March 2002, LaidBack and/or Mumbles countersigned Pocahontas's

Financial Statement to vouch that Pocahontas's false sworn statement was true and
accurate.
 
81. LaidBack and Mumbles opposed Smith's motion to compel the FSI appraisal and
then moved to have the court find Smith's counsel in contempt and be sanctioned.
 
82. StupidButFamous joined the conspiracy by recommending that the Probate &
Family Court deny Smith access to the ABC appraisal and find Smith's counsel in
contempt and sanction her.
 
83. If StupidButFamous knew the law upon which he ostensibly based his
recommendation to preclude the ABC appraisal, he acted maliciously and for personal
ulterior motive.
 
84. If StupidButFamous did not know the law upon which he based his
recommendation to preclude the ABC appraisal, he was incompetent.
 
StupidButFamous argued to Smith’s counsel that the appraisal was protected by an
attorney-client privilege. Later he argued it was protected by the work-product doctrine.
Given that ABC was not a law firm and that the appraisal was relevant to an issue in the
divorce action –– distribution of marital assets –– it was unprotected by any privilege.
 

Page 53 of 60
85. The above acts were some of the steps in a conspiracy to commit fraud, if not
larceny with the requisite mens rea, upon Smith.
 
86. The misrpresentations were deliberate and were designed to produce a judgment
that was favorable to Pocahontas.
 
87. The defendants intentionally interfered with Smith's exercise and enjoyment of his
clear and established rights secured by the state and federal constitutions or laws of the
United States and/or the Commonwealth of Massachusetts, and thereby deprived him of
those rights and caused him injuries.
 
88. As a result of the concerted unlawful and malicious conspiracy of all the
defendants, Smith, as one of the people involved in a case being heard in Probate &
Family Court, was deprived of his rights to both due process and the equal protection of
the laws, and the due course of justice was impeded, in violation of the Fifth and
Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. secs.
1983 and 1985.

 
INVIDIOUS DISCRIMINATORY ANIMUS: THE DISPARATE IMPACT
 
In Aulson v. Blanchard, 83 F.3d 1, 4 (1996), Judge Selya wrote:
In all events, an unforced reading of Section(s) 1985(3) affords no principled basis for distinguishing
between public and private conspiracies. Griffin [v. Breckenridge, 403 U.S. 88, 102 (1971)] neither
supports nor suggests the existence of such a distinction, and, at any rate, it is not the proper province of a
federal court to rewrite a statute under the guise of interpretation. Thus, we decline the plaintiff's invitation
to create by judicial fiat two classes of Section(s) 1985(3) conspiracies along a public/private axis.
 
The problem with that court's conclusion is that it was inherently inconsistent with what it had written
earlier in the same opinion, to wit, that the Supreme Court in Griffin, "under the guise of interpret[ing
1985(3)]" [Aulson, at 4], had already "placed a gloss on these four elements, effectively adding a fifth
requirement." Aulson, at 3. That fifth requirement: that "the conspiratorial conduct of which [the plaintiff]
complains [must be] propelled by `some racial, or perhaps otherwise class-based, invidiously
discriminatory animus.'" Id. at 3, quoting Griffin, at 102.
 
Judge Selya's initial statement was correct: that "it is not the proper province of [any] court to rewrite a
statute under the guise of interpretation." That is, however, what the Supreme Court in Griffin did. It is
quite elementary: Had Congress intended a fifth element, it would have included it when the statute was
enacted. To add the element, Smith contends, was improper, and in so adding it, the high Court was
usurping the power of the legislature.
 
89. In denying Smith his rights to discovery but allowing Pocahontas her rights to
discovery, according to a facially neutral scheme, the violation discriminated -- by its
disparate impact -- against Smith because of his gender, and he was thereby deprived,
indirectly or directly, of the equal protection of the laws, injured in his person and
property and deprived of having and exercising rights and privileges of a citizen of the
United States.
 

Page 54 of 60
90. Smith is a member of the class of male parents, who suffer from a class-based
invidiously discriminatory animus in Massachusetts Probate & Family Courts in today's
society.
 
91. Another example of the invidiously discriminatory animus is the cessation of
discovery by both Judge Gould on 9 March 2001 and Judge Roberts since December
2001.
 
92. Had Smith been a female, he would have been able to get discovery, but Smith
was a male, so he lost his rights to discovery [Exhs. L and P].
 
93. This invidiously discriminatory animus against men because of their gender is
rampant in the Massachusetts Probate & Family Courts.
 
This statement might smack of speculation, but it is not. Potential witnesses abound
with documentary evidence of the invidious gender discrimination. One example is an
Andover fireman who, after all deductions were taken, received a weekly paycheck of
literally 74 cents [Exh. Q]. He was also a sole-proprietor, but his business machinery was
at home and he has been precluded from getting access to the machinery and, of course,
the home.
 
94. The Probate & Family Court department regularly provides victim-witness
advocates to assist women, but does not do so for men.
 
95. In Massachusetts, such victim-witness advocates are sponsored by the
Commonwealth of Massachusetts Office of Victim Assistance, MOVA, which promotes
state-sponsored discrimination against those who are gendered male.
 
96. In this Era of the Woman, fathers have been elevated to a special class, cognizable
for purposes of sec. 1985(3).
 
97. Smith was harmed, was caused to incur considerable debt for legal services, and
has been suffering from anxiety, feelings of hopelessness, loss of trust, loss of confidence
in and feelings of betrayal by the justice system, shock, and emotional scarring, all
compensable as emotional distress, and other damages.
 
WHEREFORE, Plaintiff demands judgment for the violation of his civil rights
against the defendants, jointly and severally, for actual, general, special, compensatory
damages in the amount of $5,000,000 and further demands judgment against each of said
Defendants, jointly and severally, for punitive damages in an amount to be determined by
the jury, plus the costs of this action, including attorney's fees, and such other relief
deemed to be just, fair, and appropriate.

Page 55 of 60
 COUNT 3: FRAUD BY OMISSION OR NONDISCLOSURE
 
98. Smith repeats and realleges and incorporates by reference the allegations in
paragraphs 1 through 97 above with the same force and effect as if herein set forth.
  
99. Financial Statements are not to be lightly disregarded: each party must sign the
Statement under the pains and penalties of perjury and each party’s attorney must
countersign in order to vouch for the truthfulness of the attorney's client and the accuracy
of the financial information supplied by the client.
 
Edinburg v. Edinburg. 22 Mass.App.Ct. 199, 208 n. 18 (1986).
 
100. As a result of this dual signing requirement, trust between the parties and
between each of the parties and the other spouse's attorney is encouraged, fostered, and
implied by the process.
 See Rood v. Newberg. 48 Mass.App.Ct. 185, 192 (1999).

101. When Pocahontas and all three of her attorneys respectively signed and
countersigned the Financial Statements which they all knew to be neither true nor
accurate, and then overzealously opposed Smith getting access to an appraisal which
would prove both their knowledge and intentional misrepresentations, they were
attempting to defraud Smith by nondisclosure.
 
102. In addition, the repeated misrepresentations caused Smith additional legal
expenses that were reasonably foreseeable as a possible result of the defendants
intentional acts.
 
“Common law fraud can be the basis for a claim of unfair or deceptive practices under
the statute [cites omitted], and an intentional fraud can constitute a basis for the
multiplication of damages." McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704,
714 (1990), PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975);
Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 504 (1979). Certain
misrepresentations to a plaintiff are actionable under both common law fraud and G.L. c.
93A. Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 704-705 (1992) citing
Schwanbeck v. Federal-Mogul Corp., 31 Mass.App.Ct. 390, 411-412, 415-416 (1991).
 
103. The defendants are responsible not only for their outright untrue written
statements, but also for untruthfully declaring that the FSI appraisal did not exist [Exh.
N].
 
Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34, 41 (1980) (where affiant,
familiar with the actual facts, made "affidavit either with intent to defraud the Land Court
or with such wilful disregard of the facts as to be tantamount to fraud"). Cf. Zimmerman
v. Kent, 31 Mass.App.Ct. 72, 77-78 (1991) (Where the plaintiff proves "a statement
made, as of the party's own knowledge, which is false, provided the thing stated is not
merely a matter of opinion, estimate, or judgment, but is susceptible of actual

Page 56 of 60
knowledge ... it is not necessary to make any further proof of an actual intent to
deceive"), quoting Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 444 (1975),
quoting Powell v. Rasmussen, 355 Mass. 117, 118 (1969), in turn quoting Chatham
Furnace Co. v. Moffatt, 147 Mass. 403, 404 (1888).

104. Smith was harmed and has been caused to incur considerable legal expenses in
order to get the ABC appraisal, and has been suffering from anxiety, a feeling of
hopelessness, loss of trust, loss of confidence in and feelings of betrayal by the justice
system, shock, and emotional scarring, all compensable as emotional distress, and other
damages.
 
WHEREFORE, Plaintiff demands judgment for the violation of his civil rights
against the defendants, jointly and severally, for actual, general, special, compensatory
damages in the amount of $5,000,000 and further demands judgment against each of said
Defendants, jointly and severally, for punitive damages in an amount to be determined by
the jury, plus the costs of this action, including attorney's fees, and such other relief
deemed to be just, fair, and appropriate.

COUNT 4: COMMON LAW CONSPIRACY

 
105. Smith repeats and realleges and incorporates by reference the allegations in
paragraphs 1 through 104 above with the same force and effect as if herein set forth.
 
106. All the Defendants (a) had an object to be accomplished; (b) had an agreement on
the object or course of action, to wit, to deprive Smith of his right to the equal protection
of the laws, specifically, the right to conduct discovery in the same manner as his wife
was allowed; (c) performed one or more unlawful overt acts; and (d) caused Smith
damages that were a direct result of those acts.
 
107. In furtherance of their object, defendants did two or more overt acts against
the plaintiffs. Those unlawful overt acts include, but are not limited to, the facts
outlined in Count 2, supra, conspiracy under section 1985(3).
 
108. All five defendants are liable for their acts.
 
109. Smith suffered harm and damages, as stated at par. 104, supra, as a direct result
of those acts.
 
WHEREFORE, Plaintiff demands Judgment, including interest, against all five
defendants, jointly and severally, for actual, general, special, compensatory damages in
the amount of $5,000,000, plus the costs of this action, including attorney's fees, and such
other relief deemed to be just, fair, and appropriate.

Page 57 of 60
 COUNT 5: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
 
110. Smith repeats and realleges and incorporates by reference the allegations in
paragraphs 1 through 109 above with the same force and effect as if herein set forth.
 
111. StupidButFamous continually negligently inflicted emotional distress on the
Plaintiff.
 
112. StupidButFamous had a continuing affirmative duty to perform his profes-sional
services in such a manner as not to inflict emotional distress on Smith.
 
113. StupidButFamous breached his duties to Smith.
 
114. Smith never interfered with StupidButFamous's obligations under the above-
described duties.
 
115. Smith suffered not only physical symptomatologies but also, as a consequence of
the physical injury, mentally by StupidButFamous's breach of duty.

116. Smith was, is, and, with a high degree of likelihood, will continue to be inflicted
with emotional distress due to the negligence of StupidButFamous.
 
117. As a result of StupidButFamous's negligent conduct, Smith has suffered and will
continue to suffer physical symptomatologies, such as severe, continuous headaches and
pains in his extremities, weight gain, pain, anguish, severe emotional trauma,
embarrassment, and humiliation.
 
WHEREFORE, Plaintiff demands judgment, including interest, against
StupidButFamous in an amount deemed by this Court to be just and fair and in any other
way in which the Court deems appropriate.

 
COUNT 6: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
 
118. Plaintiff repeats and realleges and incorporates by reference the allegations in
paragraphs 1 through 117 above with the same force and effect as if herein set forth.
 
119. Defendants Pocahontas, Merrill, LaidBack, Mumbles, and StupidButFamous
intentionally and deliberately inflicted emotional distress on Smith by interfering with his
civil rights and conspiring against him, thereby destroying his trust in the judicial system.
 
120. Defendants' conduct was extreme and outrageous, beyond all possible bounds of
decency and utterly intolerable in a civilized community.
 
121. The actions of the Defendants were the cause of Smith's distress.
 

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122. Smith is a reasonable man.
 
123. The emotional distress sustained by Smith was severe and of a nature that no
reasonable man could be expected to endure.
 
Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).
 
124. As a result of the Defendants' extreme and outrageous conduct, Smith has
suffered and with a high degree of likelihood, will continue to suffer mental pain and
anguish, embarrassment, humiliation that he was so betrayed by the judicial system, and
severe emotional trauma.

WHEREFORE, Plaintiff demands Judgment, including interest, against all

defendants, jointly and severally, for actual, general, special, compensatory damages in
the amount of $5,000,000, plus the costs of this action, including attorney's fees and such
other relief deemed to be just, fair, and appropriate.

Respectfully submitted,
 
Dated the Day of , 2004.

 
  ___________________________________
PLAINTIFF JOHN SMITH, JR.
(Address)
 

Use Note:
The “sample complaints” contained in each individual cause of action illustrate all of
the elements of each claim that must be pled in order to survive a motion to dismiss.
You must plead the necessary ultimate facts to support each count in
order to satisfy pleading standard. This allows the Defendant to properly frame a
responsive pleading.

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[INSERT CAPTION]
COMPLAINT
[INSERT NAME OF PLAINTIFF(S)],(“Plaintiff”) hereby makes the following allegations against
[INSERT NAME OF DEFENDANT] (“Defendant”), and alleges as follows:
INTRODUCTION
1. This is an action to recover damages resulting from [INSERT SHORT SUMMARY OF
COMPLAINT HERE].
JURISDICTION AND VENUE
2. This Court has jurisdiction over this dispute because this complaint seeks damages in excess
of $_________ [OR INSERT APPLICABLE JURISDICTIONAL LIMITS], exclusive of interest
and attorneys’ fees.

3. Venue is proper in [INSERT NAME OF COUNTY] County, Florida because [THE DEFENDANT
RESIDES HERE, THE CAUSE OF ACTION ACCRUED HERE OR THE PROPERTY AT
ISSUE IN THE LITIGATION IS LOCATED HERE].
PARTIES
4. Plaintiff is a resident of [INSERT NAME OF COUNTY], Florida, is over the age of eighteen,
and is otherwise sui juris.

Defendant is a [insert state of domicile of Defendant and type of entity or individual Defendant’s
name] which maintains offices [OR RESIDES] in [INSERT NAME OF COUNTY] County,
Florida.

PRELIMINARY STATEMENT
5. The best place to give a clear and concise summary (or core theory) of your story
It is the legal “sound bite” that introduces the more technical and complex matters that follow
and is what the judge and others rely most upon in understanding what your case is about. It
should be focused and written in plain language

SUBSTANTIVE ALLEGATIONS
(FACTS SECTION )
7. [INSERT SUMMARY OF RELEVANT FACTS IN CONSECUTIVELY NUMBERED
PARAGRAPHS.]
COUNT I—INSERT TITLE OF CAUSE OF ACTION
8. Plaintiff realleges and incorporates the allegations set forth above in paragraphs 1-__ above as
if set forth herein in full.

9. [INSERT ALLEGATIONS FOR CAUSE OF ACTION HERE IN CONSECUTIVELY NUMBERED

PARAGRAPHS.]

WHEREFORE, Plaintiff demands damages against Defendant for [INSERT NAME OF CAUSE OF
ACTION].
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all issues so triable.

Respectfully Submitted:

[INSERT PLEADING SIGNATURE BLOCK]

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