Watts v. Florida International University

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
____________ FILED
U.S. COURT OF APPEALS
No. 05-13852 ELEVENTH CIRCUIT
AUGUST 17, 2007
_____________
THOMAS K. KAHN
CLERK
D.C. Docket No. 02-60199-CV-AJ

JOHN WATTS,

Plaintiff-Appellant,

versus

FLORIDA INTERNATIONAL UNIVERSITY,
BOARD OF REGENTS OF THE STATE OF FLORIDA,
MODESTO MAIDIQUE,
PSYCHIATRIC INSTITUTE OF DELRAY, a Florida corporation,
KAREN SOWERS-HOAG,
PHYLLIS SINGERMAN,
JOSEPH SALLUZZI,
FIU BOARD OF TRUSTEES,

Defendants-Appellees.

_____________

Appeal from the United States District Court
for the Southern District of Florida
_____________

(August 17, 2007)

Before TJOFLAT, CARNES and HILL, Circuit Judges.
CARNES, Circuit Judge:

This is an appeal by John Watts from the dismissal under Fed. R. Civ. P.

12(b)(6) of his amended complaint claiming, among other things, that because of

his religious beliefs he was terminated from a practicum position, which led to his

dismissal from a seminar and prevented him from earning his master’s degree at a

state university.

I.

Given the procedural posture of the case, we view the allegations in the

amended complaint in the light most favorable to Watts. While the true facts may

be other than those alleged, for present purposes it does not matter. The

allegations, construed favorably to Watts, are what count.

In 1995 Watts enrolled in the Master of Social Work program at Florida

International University, a state university. He was scheduled to graduate in May

of 1997. To complete the program and earn his degree, Watts had to take a course

called “Field Practicum II.” According to FIU’s graduate catalog, Field Practicum

II was a “516-clock hour supervised educational experience in an agency setting

designed to provide the student with an opportunity to develop and practice social

work skills in the student’s area of concentration.” Watts registered for the course,

paid his tuition, and was assigned to Fair Oaks Hospital, a private psychiatric

2
institution affiliated with FIU for purposes of the practicum. While in the

practicum Watts worked under the supervision of Phyllis Singerman, an FIU

graduate field instructor and advisor, and Joseph Salluzzi. Salluzzi was also a

field instructor, but it is unclear whether he worked for FIU or Fair Oaks. In the

spring of 1997, Watts was counseling a patient at Fair Oaks who “lacked a

diagnosis.” After questioning the patient, Watts, consistent with his training,

recommended that the patient join a bereavement support group. The patient

asked where she could find such a group. Watts, who had noticed on the patient’s

assessment form that she was Catholic, included “church” in the options he told

her about. Nothing he said violated any guidelines or requirements of the MSW

program.

Shortly thereafter, Watts received a letter on Fair Oaks letterhead which was

signed by Salluzzi and Singerman, terminating him from the practicum. This is

what it said:

This letter has been drafted in order to make John Watts aware of his
practicum termination at Fair Oaks Hospital on 4/1/97.

The decision has been based on inappropriate behavior related to
patients, regarding religion. This is the second such incident where
personal boundaries have intruded into professional conduct.

The first counseling was verbal, and included Phyllis L. Singerman
(Graduate Field Instructor) and Joseph Salluzzi (Field Instructor).

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Salluzzi and Singerman also orally informed Watts that “his termination was due

to his religious speech.” As a result of his termination from the practicum, Watts

later received another letter dismissing him from “Field Practicum II,” the related

course in which he was enrolled at FIU. Because he was kicked out of the

practicum and the course, Watts could not earn his master’s degree at FIU.

According to Watts, Fair Oaks and Salluzzi “acted in such close concert

with the state, and the state approved their actions, that their actions are fairly

attributable to the state and they are deemed to be state actors for the purposes of

42 U.S.C. § 1983.”1

II.

Watts filed a lawsuit against FIU, the Board of Regents, the Board of

Trustees for FIU, the corporate entity that owns Fair Oaks, Singerman, Salluzzi,

and some others. The complaint asserted under 42 U.S.C. § 1983 three claims that

the defendants’ actions had violated Watts’ constitutional rights to free speech,

1
In quoting these state action allegations from the amended complaint, we do not mean to
imply any view on their legal validity. The district court did not find it necessary to reach that
issue, and we decline to address it in the first instance. Instead, we will assume for present
purposes that Fair Oaks and Salluzzi were state actors and, accordingly, as an employee of Fair
Oaks during the practicum Watts was an employee of the state. We leave it to the district court
to determine in the first instance whether there actually was state action so that Watts was a
government employee.

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free exercise of religion, and procedural due process. It also put forward twelve

state law claims.

In granting the defendants’ motion to dismiss, the district court did not

address their assertion that Fair Oaks and Salluzzi were not state actors for

purposes of the federal claims. Instead, the court ruled that the allegations failed

to state a claim for violation of federal law regardless of state action. As for the

state law claims, the court declined to exercise supplemental jurisdiction over

them and dismissed them without prejudice. Well, more or less. More about that

at the end of this opinion, but for now we turn to the federal claims.

III.

The district court reached its conclusion that Watts’ free speech claim

should be dismissed by applying the employee speech case of Pickering v. Board

of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734 (1968), and its progeny.

The Pickering decision recognized that government “has interests as an employer

in regulating the speech of its employees that differ significantly from those it

possesses in connection with regulation of the speech of the citizenry in general.”

Id. at 568, 88 S. Ct. at 1734. Still, the Supreme Court “unequivocally rejected” the

notion that government employees relinquish their right to comment on matters of

public concern. Id. Because Pickering had spoken on an issue of public

5
importance and there was no evidence that he had knowingly or recklessly made

false statements, the Court held that the school board had infringed on his First

Amendment rights by dismissing him from public employment. Id. at 574, 88 S.

Ct. at 1738.

By contrast, when public employees speak on matters of private concern,

the First Amendment protection is not as extensive. See generally Connick v.

Myers, 461 U.S. 137, 103 S. Ct. 1684 (1983). In the Connick case the Court

explained that while the state generally is prohibited from punishing the

expression of private sentiments:

when a public employee speaks not as a citizen upon matters of
public concern, but instead as an employee upon matters only of
personal interest, absent the most unusual circumstances, a federal
court is not the appropriate forum in which to review the wisdom of a
personnel decision taken by a public agency allegedly in reaction to
the employee’s behavior.

Id. at 147, 103 S. Ct. at 1690. The district court rightly found that Watts spoke on

a matter of private concern. His speech provided private counsel to a single

patient within the confines of a counseling session. If Pickering is the appropriate

yardstick, Watts loses.

Watts argues, however, that the standard to apply is not the Pickering test

but the one governing student speech that is set out in Tinker v. Des Moines

6
Independent Community School District, 393 U.S. 503, 89 S. Ct. 733 (1969), and

its progeny. In that case the Supreme Court famously proclaimed that neither

students nor teachers “shed their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” Id. at 506, 89 S. Ct. at 736. Less famously,

the Court said that the First Amendment rights of students and teachers must be

“applied in light of the special characteristics of the school environment.” Id. In

that special light, school officials may be justified in prohibiting particular

expressions where there is a showing that engaging in the forbidden conduct

would “materially and substantially interfere with . . . appropriate discipline in the

operation of a school.” Id. at 509, 89 S. Ct. at 738 (quotation marks omitted).

Watts argues that because he was a student, the state can only regulate his conduct

under the Tinker test, which limits the government’s power more than the

Pickering test does.

The assumption underlying Watts’ contention is that because the state has

some power to regulate his speech as a student of FIU, it cannot also exercise its

power to regulate his speech as an employee of Fair Oaks. Tinker gives the state a

limited power to restrict speech that materially and substantially interferes with the

operation of a school. Id. Pickering, as modified by Connick, provides the state a

broader power to regulate the private speech of its employees. Connick, 461 U.S.

7
at 147, 103 S. Ct. at 1690. Had Watts not been a student as well as a government

employee, the state plainly would have been entitled to the greater leeway the

Pickering test affords it. The fact that the state could have attempted to assert its

authority over Watts as a student, subject to the Tinker restrictions, does not

prevent the state from asserting its authority over him as an employee, subject to

the Pickering test instead. In any event, once Watts the employee was terminated

from his employment in the practicum, Watts the student could not complete the

course which included the practicum. Without that course he could not earn his

degree. The action that led to the results about which Watts complains is his

termination from employment in the practicum, and to that pivotal action the

Pickering test applies.

As we have already indicated, judged under Pickering, the termination of

Watts from the practicum because of what he said during the private counseling

session does not violate the Free Speech Clause of the First Amendment. The

district court correctly dismissed that claim.

IV.

The district court was also correct in dismissing the due process claim.

Assuming that Watts held a property right in his graduate school education, he has

not been denied constitutionally adequate due process. Because a violation of

8
procedural due process is not complete “unless and until [a] State fails to provide

due process . . . the state may cure a procedural deprivation by providing a later

procedural remedy.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en

banc) (citation and quotation marks omitted). Only when the state refuses to

provide a process sufficient to remedy the procedural deprivation does a

constitutional violation become actionable. Id. The district court identified

several Florida administrative code sections and state court decisions indicating

that Watts could seek relief for his procedural deprivations in state court. Watts’

sole argument on appeal appears to be that an administrative appeal of his

dismissal would have been futile. Even if that is true, Watts has not presented any

reason to believe that he could not receive a procedural remedy through a state

court proceeding. For that reason, the dismissal of the due process claim was

proper.

V.

Watts has, however, pleaded a valid First Amendment free exercise of

religion claim. The district court dismissed this claim because it concluded that

Watts had not alleged that the termination of his practicum employment for his

statement to the counseling patient had substantially burdened his observation of a

central religious belief. That is the wrong standard. To plead a valid free exercise

9
claim, Watts must allege that the government has impermissibly burdened one of

his “sincerely held religious beliefs.” Frazee v. Ill. Dep’t of Employment Sec.,

489 U.S. 829, 834, 109 S. Ct. 1514, 1517 (1989). In numerous decisions,

beginning as far back as 1955, the Supreme Court has used the phrase “sincerely

held” to describe the type of religious belief or practice eligible for protection

under the Free Exercise Clause. See, e.g., Witmer v. United States, 348 U.S. 375,

377, 75 S. Ct. 392, 393 (1955); Frazee, 489 U.S. at 834, 109 S. Ct. at 1518. We

have used that “sincerely held” language as well. See, e.g., Benning v. Georgia,

391 F.3d 1299, 1313 (11th Cir. 2004).

“Sincerely held” is different from “central,” and courts have rightly shied

away from attempting to gauge how central a sincerely held belief is to the

believer’s religion. It is true that in Hernandez v. Commissioner, 490 U.S. 680,

109 S. Ct. 2136 (1989), the Supreme Court described the type of religious belief or

practice that the First Amendment shields from substantial government burden as

“a central religious belief or practice.” Id. at 699, 109 S. Ct. at 2148. After using

that phrase, however, the Court pulled back from it in the very next sentence,

stating: “It is not within the judicial ken to question the centrality of particular

beliefs or practices to a faith, or the validity of particular litigants’ interpretations

of those creeds.” Id.

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 If those two sentences in Hernandez left any doubt about whether the

judiciary should determine the “centrality” of a specific belief, the Court removed

that doubt the next year in Employment Division, Department of Human

Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990). There, the Court

wrote: “It is no more appropriate for judges to determine the ‘centrality’ of

religious beliefs before applying a ‘compelling interest’ test in the free exercise

field, than it would be for them to determine the ‘importance’ of ideas before

applying the ‘compelling interest’ test in the free speech field.” Id. at 886–87, 110

S. Ct. at 1604. The Court asked in Smith: “What principle of law or logic can be

brought to bear to contradict a believer’s assertion that a particular act is ‘central’

to his personal faith? Judging the centrality of different religious practices is akin

to the unacceptable business of evaluating the relative merits of differing religious

claims.” Id. at 887, 110 S. Ct. at 1604 (some quotation marks omitted). It

concluded: “Repeatedly and in many different contexts, we have warned that

courts must not presume to determine the place of a particular belief in a religion

or the plausibility of a religious claim.” Id. While the Free Exercise Clause may

be aimed primarily at protecting “central” religious practices, it is beyond the

competence of the courts to determine the centrality of a particular religious belief

11
or practice. The test is sincerity, not centrality. And it is sincerity that Watts was

required to plead.

With what specificity must sincerity be pleaded? We have held many times

when discussing a Rule 12(b)(6) motion to dismiss, that “the pleadings are

construed broadly,” e.g., Levine v. World Fin. Network Nat’l Bank, 437 F.3d

1118, 1120 (11th Cir. 2006), and that the allegations in the complaint are viewed

in the light most favorable to the plaintiff, e.g., Hawthorne v. Mac Adjustment,

Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). Of course, “a formulaic recitation of

the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly,

___ U.S. ___, ___, 127 S. Ct. 1955, 1965 (2007). While Rule 12(b)(6) does not

permit dismissal of a well-pleaded complaint simply because “it strikes a savvy

judge that actual proof of those facts is improbable,” the “[f]actual allegations

must be enough to raise a right to relief above the speculative level.” Id.

The Supreme Court’s most recent formulation of the pleading specificity

standard is that “stating such a claim requires a complaint with enough factual

matter (taken as true) to suggest” the required element. Id. The standard is one of

“plausible grounds to infer.” Id. The Court has instructed us that the rule “does

not impose a probability requirement at the pleading stage,” but instead “simply

calls for enough fact to raise a reasonable expectation that discovery will reveal

12
evidence of” the necessary element. Id. It is sufficient if the complaint succeeds

in “identifying facts that are suggestive enough to render [the element] plausible.”

Id.

Applying the teachings of Twombly and our decisions to the pleading issue

in this case, the question is whether Watts has alleged enough facts to suggest,

raise a reasonable expectation of, and render plausible the fact that he sincerely

held the religious belied that got him fired.

How do you plead sincerity of belief? One way is to state that the belief is,

in fact, your religious belief. Watts did that in paragraph twenty-six of the

amended complaint:

Mr. Watts is a Christian. He is not Catholic. Mr. Watts’ religious
beliefs include the belief that a patient who professes a religion is
entitled to be informed if the counselor is aware of a religious avenue
within the patient’s religion that will meet the appropriate therapy
protocol for the patient. Mr. Watts’ termination for his “religious
speech” evidences Defendants’ intent to compel Mr. Watts to act
contrary to his religious beliefs and constitutes a substantial burden
on the exercise of his religious beliefs.

The only fair reading of paragraph twenty-six is that Watts’ religion included the

sincere belief that a patient who herself professes religious faith is entitled to be

informed of religious avenues for therapy. That reading is reinforced by the

additional allegation that when Watts was fired for acting on that belief it was

13
done with the intent to compel him to act contrary to his religious beliefs and

imposes a substantial burden on them. If Watts was not sincere about the

religious belief that got him fired, firing him for acting according to it could not

have imposed a substantial burden on the exercise of his religious beliefs, as he

has pleaded.

In Twombly terms, Watts has certainly alleged “enough factual matter

(taken as true) to suggest” that his religious belief was sincerely held, 127 S. Ct. at

1965, putting forward “plausible grounds to infer” that it was sincerely held, id.,

and “identifying facts that are suggestive enough to render [the sincerity of his

belief] plausible,” id. That is all that is required at this stage of the litigation.

Our dissenting colleague acknowledges that Watts has adequately pleaded

the sincerity of his belief, but believes that he has failed to plead sufficiently that

the belief is of a religious character. See infra at 26–27. We disagree with the

dissent’s position that Watts must plead facts sufficient for an objectively

reasonable person to conclude that his belief is religious in nature.

Initially, we question whether a plaintiff could ever plead or proffer

“objective” facts that his particular sincerely held belief is religious in nature.

Religion is by its nature subjective. As Kierkegaard wrote, “it is precisely in

objective analysis that one loses the infinite personal and passionate concern that

14
is the requisite condition for faith, its ubiquitous ingredient, wherein faith comes

into existence.”2 If Watts could explain or prove objectively why his religion

commanded the belief in question, it might no longer be a religious belief, or at

least not one rooted in faith.

We need not delve far into philosophy, however, because the Supreme

Court has at least twice instructed us not to engage in any “objective” test of

whether a particular belief is a religious one. See Thomas v. Review Bd. of the

Ind. Employment Sec. Div., 450 U.S. 707, 101 S. Ct. 1425 (1981); United States v.

Seeger, 380 U.S. 163, 85 S. Ct. 850 (1965). In the Thomas case, the Court wrote

that the resolution of whether a particular belief is religious in nature “is not to

turn upon a judicial perception of the particular belief or practice in question;

religious beliefs need not be acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.” 450 U.S. at 714, 101 S. Ct.

at 1430. It is difficult to gauge the objective reasonableness of a belief that need

not be acceptable, logical, consistent, or comprehensible to others.

The dissent characterizes Thomas as being about the verity of a plaintiff’s

purported religious beliefs rather than about whether those beliefs are religious in

2
Søren Kierkegaard, Concluding Unscientific Postscript, in 2 Classics of Philosophy:
Modern & Contemporary 907 (Louis P. Pojman ed. & trans., Oxford Univ. Press 1998) (1844).

15
character. See infra at 32–33. That is not how we read the case. In its opinion

the Supreme Court takes to task the lower court for concluding that Thomas’

refusal to participate in the production of war materials was a “‘personal

philosophical choice rather than a religious choice.’” Thomas, 450 U.S. at 714,

101 S. Ct. at 1430 (quoting Thomas v. Review Bd. of the Ind. Employment Sec.

Div., 391 N.E.2d 1127, 1131 (Ind. 1979)). In doing so, the Court squarely

addresses the question of whether Thomas’ beliefs were “beliefs rooted in

religion” and explains how to go about “[t]he determination of what is a

‘religious’ belief or practice.” Id. It instructs us that the resolution of that

question does not turn on the judiciary’s perception of the particular belief or

practice. Id. Instead, “[t]he narrow function of a reviewing court in this context

is to determine whether there was an appropriate finding that petitioner terminated

his work because of an honest conviction that such work was forbidden by his

religion.” Id. at 716, 101 S. Ct. at 1431. The honest (sincere) conviction that

counts is that of the plaintiff, not that of the court.

Applying the holding of Thomas, Watts must plead that he believes his

religion compels him to take the actions that resulted in his termination. He need

not plead now, or present later, “objective” evidence that his belief is of the type

16
that a judge would generally consider to be religious in nature. Watts is not on the

hook for our inability to understand his religious system.

We also are unpersuaded by the attempt to distinguish Seeger. See infra at

32 n.2. While acknowledging that the Supreme Court in Seeger recognized that

the First Amendment protects beliefs that are, in the claimant’s “own scheme of

things,” religious, 380 U.S. at 185, 85 S. Ct. at 863, the dissent argues that: “The

focus of the Seeger Court, however, was not the preclusion of any objective

weighing of whether a belief was religious, but rather, an attempt to harness any

extrajudicial weighing of the qualitative worth of any given religion,” see id. The

Seeger opinion does concern the latter point, but it also concerns the former. The

following passage from the opinion addresses both points:

As Mr. Justice Douglas stated in United States v. Ballard, 322 U.S.
78, 86, 64 S. Ct. 882, 886 (1944): ‘Men may believe what they
cannot prove. They may not be put to the proof of their religious
doctrines or beliefs. Religious experiences which are as real as life to
some may be incomprehensible to others.’ Local boards and courts in
this sense are not free to reject beliefs because they consider them
‘incomprehensible.’ Their task is to decide whether the beliefs
professed by a registrant are sincerely held and whether they are, in
his own scheme of things, religious.

Id. at 184–85, 85 S. Ct. at 863.

Simply put, judges and juries must not inquire into the validity of a religious

doctrine, and the task of courts is to examine whether a plaintiff’s beliefs are, “in

17
his own scheme of things, religious.” Id. The question is not whether the

plaintiff’s beliefs are religious in the objective, reasonable person’s view, but

whether they are religious in the subjective, personal view of the plaintiff.

For all these reasons, we conclude that a plaintiff need not prove the

objective reasonableness of his religious belief. But even if the dissent were

correct that at some point in this litigation Watts will need to tender objective

evidence of the nature of his belief, that point is not now. The district court

dismissed Watts’ complaint under Rule 12(b)(6). We are at the pleading stage, not

the proof stage.

The dissent says that we must “ask whether a reasonable person would

accept, without more, that [Watts’ belief] is a religious belief, rather than a

philosophical or professional belief,” and require Watts to set forth specific facts

supporting his position that it is a religious belief. See infra at 30–31. This

formulation sounds remarkably like the standard governing the adjudication of

motions for summary judgment, not motions to dismiss. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 2513 (1986) (“[I]n ruling on a

motion for summary judgment . . . [t]he question . . . is whether a jury could

reasonably find either that the plaintiff proved his case . . . or that he did not.”);

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992)

18
(“In response to a summary judgment motion . . . the plaintiff can no longer rest on

. . . ‘mere allegations,’ but must ‘set forth’ . . . ‘specific facts.’” (citations

omitted)). Even assuming that the questions posed by the dissent would be critical

at summary judgment or at trial, all that is required in a complaint is “a short and

plain statement of the claim.” Fed. R. Civ. P. 8(a)(2).

Even if we agreed with the dissent’s objective-nature position, we would

disagree with its position that Watts’ specific allegation of his religious belief is

not enough because it is merely “a single statement assigning religious motivation

to [his] belief.” See infra at 37. How else does one plead a religious basis or

motivation for a belief except by asserting it in a statement in a complaint?

Surely, the alleged fact is not deficiently pleaded, as the dissent implies, merely

because it is stated only once—in a “single statement.” There is no basis in law or

logic for requiring a plaintiff to make the same allegation two or more times in a

complaint. Once is enough.

The dissent hints at how a plaintiff should demonstrate the religious nature

of a belief by citing Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526 (1972). See

infra at 31–32. Yoder did not concern pleading requirements. Instead, it involved

an appeal by the state from a lower court’s decision overturning a criminal

conviction for violating a compulsory school-attendance law. Id. at 207, 92 S. Ct.

19
at 1529. The Supreme Court examined whether “[t]he trial testimony showed that

respondents believed . . . that their children’s attendance at high school, public or

private, was contrary to the Amish religion and way of life.” Id. at 209, 92 S. Ct.

1530. It concluded, after examining the evidence presented at trial, that the

respondents held a (subjective) belief that their opposition to the compulsory

attendance law was based on religion. Id. at 219, 92 S. Ct. at 1535. The evidence

presented at trial included “expert witnesses [who were] scholars on religion and

education” who presented the history of the Amish people “in some detail,

beginning with the Swiss Anabaptists of the 16th century.” Id. at 209–10, 92 S.

Ct. at 1530. The respondents’ case was sufficiently detailed, in fact, that the

Supreme Court spent more than two thousand words summarizing the relevant

testimony. Id. at 209–13, 216–19, 92 S. Ct. 1530–35.

The Third Circuit decisions from which the dissent borrows its test likewise

discuss evidence presented after the pleading stage. In Africa v. Pennsylvania,

662 F.2d 1025 (3d Cir. 1981), the court affirmed the district court’s denial of an

injunction after it had conducted an evidentiary hearing. Id. at 1025–26. In

Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979), the court affirmed the entry of

summary judgment against a school district for violating the Establishment Clause

20
after the defendants “had filed numerous depositions, answers to interrogatories,

admissions, and other affidavits.” Id. at 198.

We do not understand the dissent to suggest that future First Amendment

litigants should add two thousand words to their complaints, detailing the contours

of their religious beliefs. We have constantly preached to attorneys that they

should avoid repetitious allegations and averments in complaints, warning against

the reviled “shotgun pleadings” style. One of us has been particularly outspoken

on the subject, always ready with the verbal cudgel to pound on those who file

prolix and repetitious complaints, instead of the “short and plain statement of the

claim” contemplated by Rule 8. See, e.g., Strategic Income Fund, L.L.C. v.

Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 n.9 (11th Cir. 2002)

(explaining that this Court has addressed unwieldy pleadings “on numerous

occasions” and “always with great dismay”); Byrne v. Nezhat, 261 F.3d 1075,

1128–34 (11th Cir. 2001) (outlining in meticulous detail a district court’s

obligation not to permit duplicitous pleadings); Anderson v. Dist. Bd. of Trs. of

Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (noting that repetition of

allegations makes it “virtually impossible” to understand a complaint); Pelletier v.

Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991) (warning attorneys against forcing

the court to “sift through the facts” at the pleading stage).

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 Watts has stated in his amended complaint that his “religious beliefs include

the belief” at issue here. His representation is all that is necessary to raise the

possibility that his belief is a religious one “above the speculative level.”

Twombly, 127 S. Ct. at 1965; see Seeger, 380 U.S. at 184, 85 S. Ct. at 863 (“[T]he

claim of the [plaintiff] that his belief is an essential part of a religious faith must

be given great weight.”). We are at a loss to understand how much more he could

say in his complaint and still adhere to the Rule 8 model of “a short and plain

statement of the claim.” Of course, Watts could conceivably be prevaricating

when he pleads that his belief is religious. Or maybe the defendants would say

that he is mistaken about his religious beliefs, taking the position that Samuel

Taylor Coleridge did when he wrote that: “You do not believe; you only believe

that you believe.”3 But it is these possibilities, and not Watts’ straightforward

allegations, that are too speculative to be dispositive at this state in the litigation.

Of course, in allowing this claim to proceed, we express or imply no view

on the ultimate merits, or lack of merit, of the claim. All we hold is that, if there is

state action, see supra note 1, this claim is entitled to proceed to the next step in

the litigation process.

3
Thomas Carlyle, The Hero as Priest (May 15, 1840), in On Heroes, Hero-Worship and
the Heroic in History 160 (Oxford Univ. Press 1974) (1841), quoting Samuel Taylor Coleridge,
better known for penning the Rime of the Ancient Mariner.

22
 VI.

Although we are convinced that, subject to the state action question, Watts

has stated a claim for a violation of his free exercise rights, we affirm the district

court’s ruling that qualified immunity applies to the state defendants whom Watts

has sued in their individual capacities. The factual circumstances of this case are

unusual. There were no decisions in 1997 addressing the free exercise rights of

graduate students in a practicum. Watts seems to have admitted as much because

he urged us to craft a new constitutional standard for precisely this situation,

explaining that applying either employee speech or student speech cases to student

internships is like trying to put “the proverbial square peg in a round hole.” To

decide unusual cases courts sometimes have to cut down pegs and bore out holes,

but when such carpentry is necessary qualified immunity is appropriate. Because

the individual defendants were not on notice that they were violating Watts’

clearly established constitutional rights, the district court correctly granted them

summary judgment in their individual capacities.

VII.

There is one more matter we need to address. We said earlier in our opinion

that the district court “more or less” (our term) had declined to exercise

jurisdiction over the state law claims. Supra at 5. What the court did in its order

23
is state that in light of the dismissal of the federal claims, “I decline to exercise

supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(c)(3),”

and “[t]hus, those claims are DISMISSED WITHOUT PREJUDICE”

(capitalization in original). But then the court said:

Because there may be an appeal, however, and in case I have erred in
dismissing any of the federal claims, I will alternatively address some
of the arguments made by the defendants as to the state law claims.
Should the Eleventh Circuit affirm the dismissal of the federal claims,
the following discussion will, of course, be nothing more than dicta
and not be binding in subsequent state proceedings.

The district court proceeded to explain why some of the pleaded state law

claims were not valid. Others it did not address on the merits. In the conclusion

of the order, however, the district court stated that while the federal claims were

dismissed with prejudice, under 28 U.S.C. § 1367(c) it was declining to exercise

jurisdiction over the state law claims, which were “therefore DISMISSED

WITHOUT PREJUDICE” (capitalization in original). It did not dismiss without

prejudice only some of the state law claims, but all of them.

This is a pretty unusual approach, and we have no precedent exactly on

point about how to handle it. We are sympathetic with the district court’s desire to

move things along should any part of its order addressing the federal claims be

reversed on appeal, but at the same time the court did begin and end its discussion

24
of the state law claims with clear statements indicating that all of them were being

dismissed without prejudice. The decisive point for us is that the most efficient

way to handle this situation is to let the state law claims travel as a group and

avoid any piecemeal appellate consideration of them. A lot can happen to a case

on remand, and it may be that some or all of the state law claims are mooted or fall

by the wayside for one reason or another. We will vacate the judgment as to all of

them and remand them to the district court for further proceedings in light of our

reversal of its judgment as to the federal free exercise claim. Obviously, we are

not implying any view as to the merits of any of the state law claims.

VIII.

The district court’s judgment is AFFIRMED insofar as it dismissed with

prejudice the federal free speech and procedural due process claims, but the

judgment is VACATED AND THE CASE IS REMANDED for further

proceedings insofar as the federal free exercise and all of the state law claims are

concerned.

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HILL, Circuit Judge, concurring:

My colleagues debate well. Concluding that the complaint does not

affirmatively show that the appellant may not have a case, I concur in the opinion

prepared for us by Judge Carnes.

Now, perhaps, the fact contentions will be developed and, if they should not

be in dispute, the court can rule on existing, and not merely alleged, facts. Then,

that ruling will determine something of value to the litigants – the resolution of the

disagreement.

That is, after all, what the judicial branch is said to be about.

26
TJOFLAT, Circuit Judge, dissenting:

Although the majority is correct in holding that Watts must allege the

impermissible burden of a “sincerely held religious belief,” Frazee v. Illinois Dep’t

of Employment Sec., 489 U.S. 829, 834, 109 S. Ct. 1514, 1518, 103 L. Ed. 2d 914

(1989), in determining that Watts pleaded a valid free exercise claim, the majority

conflates what are two distinct analyses under the First Amendment. As I set forth

below, free exercise jurisprudence requires that a plaintiff plead both sincerity and

the religious character of the plaintiff’s belief. Because I conclude that Watts

failed to plead sufficient facts supporting the religious character of the belief for

which he seeks First Amendment protection, I respectfully dissent.

While a plaintiff seeking free exercise protection under the First

Amendment must allege a sincerely held belief, sincerity alone is not enough – the

belief must also be religious. See, e.g., Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 531, 113 S. Ct. 2217, 2225, 124 L. Ed. 2d 472

(1993); Benning v. Georgia, 391 F.3d 1299, 1313 (11th Cir. 2004). Federal case

law is replete with examples of courts articulating the threshold free exercise

requirements as a two-part analysis. See, e.g., Lukumi, 508 U.S. at 531, 113 S. Ct.

at 2226–27 (noting that the Court “must consider” the plaintiffs’ free exercise

claim because no question existed as to the plaintiffs’ sincerity and the practice of

27
animal sacrifice was a religious belief); United States v. Seeger, 380 U.S. 163,

185, 85 S. Ct. 850, 863, 13 L. Ed. 2d 733 (1965) (describing a court’s

responsibility as deciding whether a plaintiff’s beliefs are “sincerely held” and

religious) (citing United States v. Ballard, 322 U.S. 78, 86, 64 S. Ct. 882, 886, 88

L. Ed. 1148 (1944)); Benning v. Georgia, 391 F.3d 1299, 1313 (11th Cir. 2004)

(“[T]he First Amendment . . . requires [a court] to determine whether the asserted

belief . . . is religious and sincerely held.”); Martinelli v. Dugger, 817 F.2d 1499,

1504 (11th Cir. 1987) (“A claimant meets this initial burden, therefore, if he or she

proves that the beliefs are truly held and religious in nature.”); Sutton v. Rasheed,

323 F.3d 236, 251 (3d Cir. 2003) (“Only beliefs which are both sincerely held and

religious in nature are protected under the First Amendment.” (internal quotation

marks omitted)); Wiggins v. Sargent, 753 F.2d 663, 666 (8th Cir. 1985) (“[O]nly

sincerely held beliefs which are ‘rooted in religion’ are protected by the free

exercise clause.” (quoting Thomas v. Review Bd. of the Indiana Employment

Security Division, 450 U.S. 707, 713, 101 S. Ct. 1425, 1429, 67 L. Ed. 2d 624

(1981))); Patrick v. LeFevre, 745 F.2d 153, 157 (2d Cir. 1984) (“This two-pronged

command expressly delineates the contours of our inquiry – beliefs must be

sincerely held and religious in nature to be accorded first amendment protection.”)

(footnote omitted); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981) (noting

28
“two basic criteria” for free exercise protection: (1) that the proffered belief be

“sincerely held” and (2) that the claim be rooted in religious belief and not secular

concerns). In other words, in order for Watts to plead a proper free exercise claim,

his complaint must not only allege sincerity of belief but also the religious

character of that belief.

As the majority notes, the Supreme Court recently articulated the pleading

standard applicable in the Rule 12(b)(6) context in Bell Atlantic Corp. v.

Twombly, __ U.S. __, __, 127 S. Ct. 1955, 1964– 65 (2007). Under the current

pleading regime, a plaintiff must provide more than conclusory grounds for relief.

See id. at 1964–65 (“[A] plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels or conclusions . . . . ” (internal

quotation marks omitted)). Any “formulaic recitation of the elements of a cause of

action” will not pass 12(b)(6) muster. Id. at 1965. For our purposes, then, in order

to survive a motion to dismiss, Watts must allege facts pertaining to both his

sincerity and the religious character of his belief that are sufficient to raise his

right to relief “above the speculative level.” Id. These alleged facts, of course, are

viewed in the light most favorable to Watts. M.T.V. v. DeKalb County Sch. Dist.,

446 F.3d 1153, 1156 (11th Cir. 2006).

29
 My dissent from the majority’s determination that Watts pleaded facts

sufficient for a free exercise claim arises not so much from what was said, but

rather, what was left unsaid. To the extent that the majority finds that Watts

alleged facts that render it plausible that he acted on the basis of a sincere belief, I

have no quibble. At the pleading stage, the sincerity requirement for a valid free

exercise claim is a subjective question best left for the broader and closer scrutiny

possible in later proceedings. See Witmer v. United States, 348 U.S. 375, 381, 75

S. Ct. 392, 396, 99 L. Ed. 428 (1955) (describing the sincerity analysis in

conscientious objector cases as “purely a subjective question”). Because the

question of whether a plaintiff alleges a sincere belief is subjective – i.e., we

assess sincerity with reference to the individual plaintiff’s state of mind – absent

the unlikely event of contravening facts in the complaint itself, viewing the facts

alleged in the light most favorable to the plaintiff, the plaintiff will normally

survive 12(b)(6) dismissal regarding the sincerity prong. The subjectivity of the

sincerity question allows a plaintiff to survive a motion to dismiss simply by

avowing that the given belief is sincere. There are no other facts that Watts need

allege to support a plausible claim of his sincerity under Twombly. See Twombly,

127 S. Ct. at 1965.

30
 Although the subjectivity latent in the sincerity analysis may confer a wider

ambit of protection from 12(b)(6) dismissal, the same cannot be said for the

analysis of the religious character of a plaintiff’s beliefs. Unlike the assessment of

a plaintiff’s sincerity, a court’s assessment of whether a plaintiff alleged facts

sufficient to support a claimed religious belief is an objective question. That is,

once we agree that Watts properly alleged a sincere belief, we must ask whether a

reasonable person would deem his professed belief a religious belief. Confronted

by the complaint before us, that assessment requires us to ask whether a

reasonable person1 would accept, without more, that “the belief that a patient who

professes a religion is entitled to be informed if the counselor is aware of a

religious avenue within the patient’s religion that will meet the appropriate therapy

protocol for the patient” is a religious belief, rather than a philosophical or

professional belief. I dissent because I do not believe that Watts alleged sufficient

facts under Twombly to state a religious belief.

Maintaining that a valid free exercise claim must involve a religious belief

may seem an exercise in stating the obvious – but on the facts before us, to ignore

1
I am in full agreement with the majority’s contention that Watts need not plead now, or
present later, objective evidence that “his belief is of the type that a judge would generally
consider to be religious in nature.” Presiding judges do not import their own perspectives onto
an analysis of a plaintiff’s free exercise pleadings.

31
the requirement that the plaintiff’s belief be religious in character would be to set

aside the precise reason for which I would affirm the district court’s dismissal of

Watts’s claim. Determining what constitutes a “religious” belief is, admittedly, a

delicate process. Despite that difficulty, as the Supreme Court stated in Wisconsin

v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), “the very concept

of ordered liberty precludes allowing every person to make his own standards on

matters of conduct in which society as a whole has important interests.” Id. at

215–16, 92 S. Ct. at 1533. It is necessary, then, to maintain the analysis of

whether a plaintiff properly pleaded a religious belief alongside a separate analysis

of the plaintiff’s sincerity. Sincerity is not a euphemism for religious ardor. If that

were the case, any sincere act is sacrosanct – and potentially subject to

constitutional protection. To interpret the First Amendment in such a fashion

would stretch the scope of free exercise claims to an untenable degree.

In maintaining the necessity of following the distinct components of the

constitutional test for a valid free exercise claim – a subjective inquiry as to the

plaintiff’s sincerity and an objective2 inquiry as to whether the belief is religious in

2
A handful of courts have cited to language in United States v. Seeger, 380 U.S. 163, 85
S. Ct. 850, 13 L. Ed. 2d 733 (1965), suggesting that the task of a court faced with a free exercise
claim is to determine whether the beliefs are, in the claimant’s “own scheme of things,” religious.
Id. at 185, 85 S. Ct. at 863; see, e.g., Fifth Ave. Presbyterian Church v. City of New York, 293
F.3d 570, 574 (2d Cir. 2002); Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981) (“A
court’s task is to decide whether the beliefs avowed are: (1) sincerely held, and (2) religious in

32
character – I want to be clear as to what I am not maintaining as our free exercise

jurisprudence. I am not suggesting an objective inquiry into the verity or validity

of a plaintiff’s purported religious belief; such speculation has been uniformly

rejected. See, e.g., Thomas, 450 U.S. at 714, 101 S. Ct. at 1430 (“[T]he resolution

of [what constitutes a religious belief] is not to turn upon a judicial perception of

the particular belief or practice in question; religious beliefs need not be

acceptable, logical, consistent, or comprehensible to others in order to merit First

Amendment protection.”); Ballard, 322 U.S. at 87, 64 S. Ct. at 887 (“The religious

views espoused by [the plaintiffs] might seem incredible, if not preposterous, to

most people. But if those doctrines are subject to trial before a jury charged with

finding their truth or falsity, then the same can be done with the religious beliefs

of any sect.”); Cooper v. Gen. Dynamics, 533 F.2d 163, 166 n.4 (5th Cir. 1976)

(noting that federal courts are “powerless . . . to evaluate the logic or validity of

beliefs found religious and sincerely held”);3 Patrick, 745 F.2d at 157 (“It cannot

nature, in the claimant’s scheme of things.”). The focus of the Seeger Court, however, was not
the preclusion of any objective weighing of whether a belief was religious, but rather, an attempt
to harness any extrajudicial weighing of the qualitative worth of any given religion. See Seeger,
380 U.S. at 184–85, 85 S. Ct. 863 (“Men may believe what they cannot prove. They may not be
put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as
life to some may be incomprehensible to others.” (quoting United States v. Ballard, 322 U.S. 78,
86j, 64 S. Ct. 882, 886, 88 L. Ed. 1148 (1944))).
3
This circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981).

33
be gainsaid that the judiciary is singularly ill-equipped to sit in judgment on the

verity of an adherent’s religious beliefs.”). There is a distinct difference, however,

between questioning the veracity or reasonableness of a claim and questioning

whether the belief is objectively “religious.” The latter is a foundational

component of determining whether a plaintiff has pleaded a First Amendment free

exercise claim. See Yoder, 406 U.S. at 216, 92 S. Ct. at 1533 (declaring that if the

Amish plaintiffs asserted their claims due to their rejection of “contemporary

secular values,” such claims would rest on a basis that was “philosophical and

personal rather than religious,” and would “not rise to the demands of the Religion

Clauses”). It cannot be the case that plaintiffs may go to trial on a free exercise

claim merely by pronouncing that they possess a “sincere and religious belief”

related to an act for which they seek First Amendment protection.

What, then, must a plaintiff plead with regard to the religious character of a

belief in order to survive a 12(b)(6) motion to dismiss? Although no bright-line

rule can exist, free exercise case law offers some insight. The Third Circuit, in

Africa v. Pennsylvania, 662 F.2d 1025 (3d Cir.1981), suggested three “useful

indicia” as to what might characterize a religious belief: (1) an engagement with

“fundamental and ultimate questions having to do with deep and imponderable

matters”; (2) existence as a component of a “belief-system as opposed to an

34
isolated teaching”; and (3) the possible presence of “certain formal and external

signs.” Africa, 662 F.2d 1025, 1032 (3d Cir. 1981) (citing Malnak v. Yogi, 592

F.2d 197, 207–10 (3d Cir. 1979). Although these “indicia” certainly do not

represent an exhaustive list of features defining a religious belief, “it is important

to have some objective guidelines in order to avoid Ad hoc justice.” Malnak, 592

F.2d at 210 (emphasis added).

On close questions, determining whether a plaintiff has pleaded a religious

belief will undoubtedly require a nuanced consideration of the complaint.

Naturally, not every complaint setting forth a free exercise claim will require a

particularly searching analysis. For example, a Mormon plaintiff seeking

protection for actions related to a belief that individuals ought to be baptized

posthumously may not need to plead much more than a statement of that belief –

baptism is a well-known theological sacrament. Cf. Frazee, 489 U.S. at 834, 109

S. Ct. 1517–18 (concluding that the plaintiff’s refusal to work on Sunday was due

to a religious belief although he was not a member of a particular religious sect).

Other proffered beliefs, however, may present a more tenuous case as to

their religious character. Where a plaintiff alleges a belief that seems to be “far

more the product of a secular philosophy than of a religious orientation,” or where

the motivating concerns appear to be personal or social, rather than “spiritual or

35
other-worldly,” a free exercise claim cannot go forward. Africa, 662 F.2d

1033–34 (arguing that if the plaintiff’s concern that he be given a raw food diet

was considered “religious,” the First Amendment might need to protect a “host of

individuals and organizations who espouse personal and secular ideologies”).

Furthermore, although affiliation with a specific religious denomination or

institution greatly simplifies the question of whether a particular belief is religious,

lack of such membership is not dispositive. Frazee, 489 U.S. at 834, 109 S. Ct. at

1517–18 (“[W]e reject the notion that to claim the protection of the Free Exercise

Clause, one must be responding to the commands of a particular religious

organization.”). That said, however, with closer questions – such as those that are

outside recognized religious denominations or fail to point toward known

theological tenets – a plaintiff, in order to raise plausible grounds for a free

exercise claim, must allege more facts to support that claim.

Turning now to the complaint before us, I cannot say that Watts’s belief that

the Catholic patient he encountered in the spring of 1997 was entitled to hear

“church” among bereavement support group options constitutes a religious belief.

It may very well be the case that Watts is religious; it may very well be that he

often acts upon particular religious beliefs. Membership in a given religious

tradition, however, does not automatically grant the adherents of that religion First

36
Amendment protection. The particular belief Watts alleges must also be religious

in character – but his complaint seems to allege a belief similar to those that could

have been taken from the pages of a professional patient advocacy journal.

The only reference Watts makes to the religious character of his belief is the

conclusory statement that his “religious beliefs include the belief that a patient

who professes a religion is entitled to be informed if the counselor is aware of a

religious avenue within the patient’s religion that will meet the appropriate therapy

protocol for the patient.” This bare assertion would fail even under a broad notice

pleading standard, which we have declared is not so liberal as to encompass

“wholly conclusory allegations.” Jackson v. BellSouth Telecomms., 372 F.3d

1250, 1272 (11th Cir. 2004) (quoting Wagner v. Daewoo Heavy Indus. Am. Corp.,

289 F.3d 1268, 1273 (11th Cir. 2002) (vacated on other grounds)). That being the

case, a single statement assigning religious motivation to the belief that a patient

ought to be informed of an “appropriate therapy protocol” compatible with the

patient’s religion is clearly insufficient to constitute a viable free exercise claim

under Twombly. The complaint, indeed, later states that “Mr. Watts was

terminated from the Practicum because of private religious speech that was

consistent with his training.” The nominal attachment of religious belief onto an

otherwise secular and professional decision (i.e., the decision to inform a patient

37
of a religious avenue for bereavement counseling) does not issue a carte blanche

for free exercise protection.

In conclusion, I would find no error in the district court’s dismissal of the

free exercise claim in this case. Although our limited window into the facts

suggests that the decision to terminate Watts may have been disproportionate, the

federal courts can provide no remedy for the claims presented, and I would affirm

the district court.

38