IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-10956
_____________________
DONALD TODD,
Plaintiff-Appellant,
v.
KATHLEEN HAWK, Director,
Bureau of Prisons, et al.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
August 2, 1995
Before REYNALDO G. GARZA, KING and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Donald Todd appeals the district court's dismissal of his
civil rights suit on grounds of qualified immunity. We reverse
and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 1993, Todd, a federal prisoner incarcerated
in Texas, filed a complaint alleging violation of his civil
rights by various Bureau of Prison officials. On November 19,
1993, the district court issued an Order to Show Cause, which
instructed Todd to file an amended complaint setting forth
greater factual detail or it would dismiss Todd's complaint for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. On December 16, 1993, Todd filed an
amended complaint seeking damages and injunctive relief against
numerous prison officials who, "with [] knowledge and consent,"
did "purposefully racially discriminate against all Afro-American
inmates by the manufacturing, circulating, and displaying of a
racially [discriminatory] United States Government Memorandum,
which lists as its subject matter `Juneteenth Celebration'."1
Todd further alleged that this memorandum "appeared to be an
official memorandum of the staff of the institution addressed to
all inmates" because it was printed on an official government
form and it was "widely circulated amongst the inmate[s] . . .
and posted on official bulletin boards . . . ." Todd's amended
1
Juneteenth is a date in Texas history which commemorates
the day when slaves in Texas learned of the Emancipation
Proclamation which granted their freedom.
2
complaint sought relief pursuant to 42 U.S.C. §§ 1986,2 2000d,3
and 2000e-5.4
On January 4, 1994, the defendants filed a motion to dismiss
Todd's complaint on grounds that they were entitled to qualified
immunity, that Todd had failed to exhaust available
2
Section 1986 provides in relevant part:
Every person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in section
1985 of this title, are about to be committed, and
having power to prevent or aid in preventing the
commission of the same, neglects or refuses to do so,
if such wrongful act be committed, shall be liable to
the party injured, or his legal representatives, for
all damages caused by such wrongful act, which such
person by reasonable diligence could have prevented . .
. .
42 U.S.C. § 1986.
Section 1985 creates a private right of action to recover
damages against those who conspire to: (1) prevent a federal
officer from performing his duties; (2) intimidate a party,
witness, or juror in a federal court; or (3) deprive any person,
directly or indirectly, of the equal protection of the laws. See
42 U.S.C. § 1985.
3
Section 2000d provides:
No person in the United States shall, on the ground of
race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance.
42 U.S.C. § 2000d.
4
Section 2000e-5 provides a procedure for the enforcement
of unlawful employment practices which are enumerated in 42
U.S.C. § 2000e-2. In order to bring an employment discrimination
suit pursuant to 42 U.S.C. § 2000e-2, a plaintiff must first have
exhausted the administrative remedies as set forth in § 2000e-5.
The parties do not dispute that Todd failed to pursue available
administrative remedies prior to instituting this suit.
3
administrative remedies, and that parties without personal
involvement could not be held liable under the doctrine of
respondeat superior. On June 15, 1994, the district court issued
an order granting the defendants' motion to dismiss Todd's state
tort and § 2000e-5 employment discrimination claims without
prejudice for failure to exhaust administrative remedies, and
also dismissed his claims under 42 U.S.C. §§ 1986 and 2000d for
failure to state a claim upon which relief could be granted. FED.
R. CIV. P. 12(b)(6). However, the court determined that Todd had
stated cognizable Bivens5 claims under the Equal Protection
Clause as well as 42 U.S.C. § 1981.6 On June 30, 1994, the
defendants filed an answer to Todd's amended complaint in which
they asserted the affirmative defense of qualified immunity to
all of Todd's claims.
On July 13, 1994, based on its partial denial of the
defendants' motion to dismiss, the district court struck part of
the defendants' answer, including the affirmative defense of
qualified immunity. On August 11, 1994, the defendants filed an
interlocutory appeal challenging the district court's implicit
denial of their qualified immunity defense due to the district
court's determination that Todd had stated viable causes of
action pursuant to the Equal Protection Clause and § 1981. On
5
See Bivens v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971).
6
Section 1981 states in relevant part that all persons,
regardless of race, "shall be subject to like punishment, pains,
[and] penalties . . . of every kind . . . ." 42 U.S.C. §
1981(a).
4
August 19, 1994, the district court denied Todd's motion to add
certain individuals as defendants on grounds that the addition of
defendants would be futile given Todd's failure to state a
cognizable equal protection claim under this court's heightened
pleading standard.
On September 2, 1994, the defendants filed a "Motion for
Indicative Ruling" in the district court, asking the district
court to indicate how it would resolve the qualified immunity
question if this court should remand for consideration thereof.
See Lairsey v. Advance Abrasives Co., 542 F.2d 928, 932 (5th Cir.
1976) (stating that although district court no longer has
jurisdiction to entertain a Rule 60(b) motion once a notice of
appeal has been filed, the district court can indicate that it
would be "inclined to grant the motion . . . and the movant can
then apply to the appellate court for remand to the trial court
to enter its order."). On September 7, 1994, the district court
granted the motion for an indicative ruling and stated that,
should this court grant the defendants' request for a remand, it
would enter an order dismissing Todd's remaining claims pursuant
to Rule 12(b)(6).
On October 7, 1994, this court granted the defendants'
motion for remand to the district court to consider the validity
of the qualified immunity defense. On October 17, 1994, the
district court dismissed Todd's remaining claims in their
entirety on grounds of qualified immunity. On October 21, 1994,
Todd filed a timely appeal to this court.
5
II. ANALYSIS
Todd's only point of error on appeal is that the district
court erred in applying a "heightened pleading" standard in
dismissing his equal protection and § 1981 claims.7
Specifically, Todd contends that this heightened pleading
standard is inconsistent with the "notice pleading" set forth in
Rules 8(a)(2)8 and 9(b)9 of the Federal Rules of Civil Procedure.
In Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 113 S. Ct. 1160 (1993), the Supreme Court
concluded that the heightened pleading requirement we established
in Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), could not be
7
Racial discrimination claims brought under § 1981 are
subject to the defense of qualified immunity. See Saunders v.
Bush, 15 F.3d 64 (5th Cir. 1994). Furthermore, the heightened
pleading standard enunciated in Elliott v. Perez, 751 F.2d 1472
(5th Cir. 1985), also applies to all civil rights actions where
the defense of qualified immunity is asserted, including § 1981
claims. Wicks v. Mississippi State Employment Svcs., 41 F.3d
991, 996 n.21 (5th Cir. 1995).
8
Rule 8(a) states that:
A pleading which sets forth a claim for relief, whether
an original claim, counterclaim, cross-claim, or third-
party claim, shall contain . . . (2) a short and plain
statement of the claim showing that the pleader is
entitled to relief . . . .
FED. R. CIV. P. 8(a)(2).
9
Rule 9(b) states in relevant part:
(b) Fraud, Mistake, Condition of the Mind. In all
averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with
particularity. . . .
FED. R. CIV. P. 9(b).
6
applied in a § 1983 suit against a municipality; however, the
Court explicitly reserved the question whether a heightened
pleading requirement may survive in cases against individual
public officials who assert the defense of qualified immunity.
Leatherman, 113 S. Ct. at 1162. In our recent en banc decision
in Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc), we
revisited Elliott and held that "we stand by our insistence that
complaints plead more than conclusions, and that a plaintiff can,
at the pleading stage, be required to engage the affirmative
defense of qualified immunity when invoked. However, we will no
longer insist that plaintiff fully anticipate the defense in his
complaint at the risk of dismissal under Rule 12." Schultea, 47
F.3d at 1430.
Thus, instead of requiring that the plaintiff provide
greater specificity in the complaint in anticipation of a
qualified immunity defense, we held that the district court
should abide by the following two-step procedure:
First, the district court must insist that a plaintiff
suing a public official under § 1983 file a short and
plain statement of his complaint, a statement that
rests on more than conclusions alone. Second, the
court may, in its discretion, insist that a plaintiff
file a reply tailored to an answer pleading the defense
of qualified immunity. Vindicating the immunity
doctrine will ordinarily require such a reply, and a
district court's discretion not to do so is narrow
indeed when greater detail might assist. . . .
Id. at 1433-34. In the case at hand, the district court
dismissed Todd's claims pursuant to Rule 12(b)(6) on grounds that
Todd had failed to provide sufficient specificity in his
7
complaint and amended complaint to overcome the defense of
qualified immunity. Because the district court's dismissal
occurred on October 17, 1994-- almost five months prior to our
decision in Schultea-- it could not have anticipated the two-step
process we outlined in Schultea. Nonetheless, Schultea makes it
clear that this two-step process-- requiring the plaintiff to
file a short and plain statement of his claim pursuant to Rule
8(a)(2) followed by a more particularized reply pursuant to Rule
7-- is the preferred procedure preceding consideration of a
motion to dismiss on grounds of qualified immunity.
In the case at bar, Todd's amended complaint specifically
outlines the series of events that led to his injury, and it
attaches a copy of the offending memorandum.10 It is deficient
in specifying the degree of personal involvement of each of the
defendants. The motion to dismiss filed by the defendants is
accompanied by affidavits from twelve of the seventeen named
defendants. The district court's order, however, appears to be
based not upon a review of the affidavits but upon the factual
insufficiency of Todd's pleadings. Therefore, we construe the
district court's order as a dismissal under Rule 12(b)(6), rather
than a grant of summary judgment. Todd was not provided an
opportunity to respond to the defendants' assertion of qualified
immunity prior to the district court's dismissal of his suit. It
is possible that, had Todd been given the opportunity to reply to
10
The government's brief concedes that "the memorandum of
which Todd complains was racially inflammatory and denigrating to
African-Americans . . . ."
8
the qualified immunity defense, his complaint, as augmented by
his reply, would have survived the motion to dismiss. The
district court's abrupt change of mind pretermitted Todd's suit,
without giving him an opportunity to reply, a result that
Schultea's two-step process was intended to avoid. Accordingly,
we think Schultea requires that Todd be given an opportunity to
reply with greater specificity to the defendants' qualified
immunity defense pursuant to Rule 7.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court dismissing Todd's equal protection and § 1981 claims
pursuant to Rule 12(b)(6) is hereby REVERSED and the case is
REMANDED to the district court with instructions to provide Todd
an opportunity to file a reply addressing the merits of the
defendants' asserted qualified immunity defense.
9