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Pro Se Tips and Tactics - Motions to Dismiss

1. Rule 12(b)(6) Motions To Dismiss For Failure To State A Claim

In some prison cases filed pro se by prisoners, the defendants will file a "motion to dismiss for failure to state a claim." In cases filed in federal court under 42 U.S.C. §1983, a motion to dismiss for failure to state a claim is filed under Federal Rule of Civil Procedure 12(b)(6), which I will call by the shorthand "Rule 12(b)(6)." This column provides a brief overview of Rule 12(b)(6) motions to dismiss and some ideas on how to defend against them.

Rule 12(b)(6) is a sub-part of part of Rule 12(b). Rule 12(b) states in general that all defenses should be put in the defendants' answer, but it also gives the defendants the option to raise some defenses by motion before an answer is filed. Thus defendants can, instead of answering right away, raise one or more Rule 12(b) defenses by motion, and only if the defendants lose that motion will they be required to file an answer to the complaint.

One of the defenses Rule 12(b) allows to be raised by motion is the defense set out in Rule 12(b)(6): "...failure to state a claim upon which relief can be granted." If the defendants win a motion claiming that your entire complaint fails to state a claim upon which relief can be granted, the case will be dismissed. This means that the case will be over in the district (trial) court and you will have to appeal to get your case reinstated.

Defending against a motion to dismiss for failure to state a claim upon which relief can be granted requires you to understand what a "claim" is under the federal rules; the law governing what federal courts do to decide Rule 12(b)(6) motions; and when a motion filed under Rule 12(b)(6) should be treated as a summary judgment motion. I will discuss each of these topics in turn, followed by a few practical tips.

2. What A "Claim" Is

Under the Federal Rules of Civil Procedure, a "claim for relief" is defined in Rule 8(a) as containing three elements:

"a short and plain statement of the grounds upon which the court's jurisdiction depends..."

"a short and plain statement of the claim showing that the pleader is entitled to relief..."

"a demand for judgment for the relief the pleader seeks..."

These phrases mean that a complaint need not be long and complicated, but it must contain statements that support the federal court's jurisdiction (such as that the case is brought to enforce constitutional rights under 42 U.S.C. § 1983), allegations of fact that support a specific claim that is being made, and a request for relief. The rules make a "short and plain statement" enough because the policy behind the rules is to simplify pleading and not to put up technical barriers to relief that a plaintiff needs and can get from the court.

The most important part of Rule 8(a) for purposes of a Rule 12(b)(6) motion is the middle one - "a short and plain statement of the claim..." This means a short and plain statement of facts that make up the claim. For example, in a case in which you allege unconstitutional medical care, you must put in statements that cover what happened to you, how you were injured, and the important mental state element -- that the defendant or defendants acted with "deliberate indifference to serious medical needs." The facts of what happened to you, as we will see, are the most important for Rule 12(b)(6) motions, and so you must make sure to make allegations of fact : who did what, where, and when. You should avoid conclusions that are not allegations of fact, for example saying things such as "the doctor violated my rights" or "the doctor gave bad medical care" without stating what the doctor did or did not do. You can, after putting in the factual allegations, say something like, "these facts show unconstitutional medical care," but do not put a conclusory statement like this in instead of the factual allegations.

If you put in your complaint jurisdictional allegations, the facts of what the defendant did (including how you are injured by what the defendant did), allegations of deliberate indifference or other necessary mental state, and a request for relief, you have a claim. (As always, I assume that you will only put in a complaint factual allegations that are true to the best of your knowledge.) A Rule 12(b)(6) motion tests whether such a claim is one "upon which relief can be granted."

3. Standards For Decision Of Rule 12(b)(6) Motions

Courts do not in general favor Rule 12(b)(6) motions to dismiss, because the policy of the federal rules is to allow cases to proceed if there is any reasonable chance that the plaintiff is entitled to relief. Thus the federal courts require the defendants to make a very strong showing before a complaint may be dismissed for failure to state a claim.

A Rule 12(b)(6) motion tests whether, based only on what is said in the complaint, the plaintiff possibly could be entitled to relief. Courts do not determine whether the facts you state are true, but instead assume the truth of your factual statements and decide whether you may have a claim that could lead to relief. As the Ninth Circuit recently stated, when reviewing a Rule 12(b)(6) motion, a federal court must

"take as true all allegations of material fact stated in the complaint and construe them in the light most favorable to the nonmoving party." Warshaw v. Xoma Corp ., 74 F.3d 955, 957 (9th Cir. 1996). As the Supreme Court has stated, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). Rather, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson , 355 U.S. 41, 45-46 (1957).

Our review in this case is even more searching than usual because the district court dismissed the prisoners' complaint without leave to amend. "[D]ismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Chang v. Chen , 80 F.3d 1293, 1296 (9th Cir. 1996).

Schneider v. California Department of Corrections , 151 F.3d 1194, 1196 (9th Cir. 1998).

This quotation contains several important points you should use in defending against a Rule 12(b)(6) motion. First, a true Rule 12(b)(6) motion does not include the addition by the defendants of any factual material; instead, the allegations of the complaint are taken as if they are true, and the court decides whether, read favorably to the plaintiff, the complaint could support a claim. If the defendants do attempt to add factual material, it is likely the motion will be treated not as a Rule 12(b)(6) motion, but as a motion for summary judgment, as is discussed in the next section of this column.

Second, this standard is very favorable to plaintiffs. Only if the plaintiff cannot conceivably make out a claim will the complaint be dismissed. For example, in a prison medical care case, the complaint can be dismissed at this stage only if the plaintiff fails to claim deliberate indifference or fails to set out show that a serious medical need was not attended to. Note, however, that if you try to raise a constitutional claim of inadequate medical care but say only that the defendant doctor was "negligent," your complaint will be dismissed because negligence is not enough to state a constitutional claim; you must in good faith allege "deliberate indifference" to state this claim. See , for example, Davis v. Hall , 992 F.2d 151 (8th Cir. 1993).

Third, the Ninth Circuit in Schneider talks about dismissal "without leave to amend," and how courts look with disfavor on dismissals without leave to amend. This is a reference to the usual practice of courts to allow plaintiffs whose complaints appear possibly defective a chance to amend the complaint at least once:

The federal rule policy of deciding cases on the basis of substantive rights involved rather than on technicalities requires that plaintiff be given every opportunity to cure a formal defect in his pleading. This is true even though the court doubts that plaintiff will be able to overcome the defects in his initial pleading. Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim.

Wright and Miller, Federal Practice and Procedure , Vol 5A, § 1357.

One final helpful legal point is that pleadings filed by pro se prisoners are "held to less stringent standards than formal pleadings drafted by lawyers..." Haines v. Kerner , 404 U.S. 519 (1972). This means that, in judging a Rule 12(b)(6) motion against a pro se complaint, the court is supposed to look even more carefully to see whether any set of facts consistent with the complaint could be proven, and if so to deny the Rule 12(b)(6) motion.

4. When A Rule 12(b)(6) Motion Becomes A Summary Judgment Motion

Rule 12(b)(6) ends with a statement that if, as part of the proceedings on a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment" governed by the standards and procedures of Rule 56, although all parties will be given a chance to comply with Rule 56. Read this section carefully and be wary: If the defendant includes factual material along with a Rule 12(b)(6) motion, you should think about asking the court not consider the new material. If you don't, or the court decides over your objection to consider the material, then you have a summary judgment motion, not a Rule 12(b)(6) motion, to deal with.

In addition, you should be careful not to turn a Rule 12(b)(6) motion into a summary judgment motion by adding factual material yourself. If you are not ready to present facts, do not add factual material when responding to a Rule 12(b)(6) motion, as you may inadvertently push the case to a summary judgment stage, where factual material must be presented.

5. Special Rules For Prison Cases, and Practice Tips

In addition to the possibility that defendants will file a Rule 12(b)(6) motion, you need to be aware of 28 U.S.C. § 1915A(a), which is part of the Prison Litigation Reform Act (PLRA). Under this section, federal district courts must review "as soon as practicable" a complaint filed by a prisoner seeking relief from actions of government agencies or employees, identify "cognizable claims," and dismiss any claim that is "frivolous, malicious, or fails to state a claim upon which relief can be granted..." This means that the judge can dismiss your case for failure to state a claim before the defendant files a motion. In many cases, before finally deciding to dismiss under this statute, a court will identify deficiencies in the complaint and provide an opportunity to amend. If the court suggests you amend, take this suggestion very seriously . If you don't amend, the court will probably dismiss the claim and you may not be able to complain about this on appeal because you did not take advantage of the opportunity. Moreover, be very aware of this statute because a dismissal under it is likely to count against you as a "strike" under the PLRA that will prevent you from filing lawsuits with in forma pauperis status after "three strikes."

The best way to avoid dismissal under § 1915A(a) or to deal with a Rule 12(b)(6) motion filed by defendants is through prevention: Plead your claim well at the outset. Follow Rule 8(a), which tells you what a claim is. Learn the elements of the claim or claims you are trying to make in your complaint, that is the basic things you have to show if you are to get relief. If you cannot meet those elements, you cannot in good faith make that claim, so don't bother. But if you can put in your complaint clear factual allegations about what happened to you and these facts track the elements of a claim on which a federal court can grant relief, a Rule 12(b)(6) motion is much less likely to be granted.

If the defendants file a Rule 12(b)(6) motion, cite the law set out in section 3 above about how the court has to give you every reasonable chance to state a valid claim. Explain how your complaint covers the elements of the claim you are trying to make. Ask for permission to amend if the court thinks you haven't yet stated a claim. If you are given the opportunity to amend, go back and make sure of the elements and re-think your claim; you may well be able in good faith to state a stronger case in the amended complaint.

In this brief column, I have been able to discuss these issues only in general terms. Each case is different, and you should do independent research when deciding what to do with your case.

[John Midgley is a staff attorney at Columbia Legal Services in Tacoma, WA.]

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