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Ramon Pickens #K82154 v. Robert Moore

August 26, 2011

RAMON PICKENS #K82154, PLAINTIFF,
v.
ROBERT MOORE, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Ramon Pickens ("Pickens") filed this pro se action against Robert Moore ("Moore"), a parole officer with the Illinois Department of Corrections, seeking relief under 42 U.S.C. §1983 ("Section 1983"). Pickens accompanied his self-prepared Complaint with requests (1) for permission to proceed in forma pauperis and (2) for appointment of counsel to represent him pro bono publico.

This Court granted both requests, and after the first two appointed attorneys found themselves unable to serve, the present counsel was appointed and filed an Amended Complaint.*fn1 That pleading advanced a single count alleging that Moore violated Pickens' due process rights under the Fourteenth Amendment by filing a false report with the Illinois Prisoner Review Board ("Board") that caused him to be wrongfully incarcerated for nine extra months.

Moore then filed a motion to dismiss that has now been fully briefed. For the reasons discussed below, that motion is denied.

Standard of Review

Under Rule 12(b)(6) a party may seek dismissal of a complaint for "failure to state a claim upon which relief can be granted." In that respect Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) has done away with the formulation first announced in Conley v. Gibson, 355 U.S. 41, 45--46 (1957) "that 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."

As Twombly, 550 U.S. at 562--63 put it: Conley's "no set of facts" language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. Twombly, id. at 570 held instead that a complaint must provide "only enough facts to state a claim to relief that is plausible on its face." Or put otherwise, "[f]actual allegations must be enough to raise a right to relief above the speculative level" (id. at 555).

But almost immediately thereafter the Supreme Court issued another opinion that seemed to cabin Twombly somewhat. Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) has explained that further development:

Two weeks later the Court clarified that Twombly did not signal a switch to fact-pleading in the federal courts. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). To the contrary, Erickson reaffirmed that under Rule 8 "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" 127 S.Ct. at 2200, quoting Twombly, 127 S.Ct. at 1964. Taking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.

And since then Ashcroft v. Iqbal, ------ U.S. --------, 129 S.Ct. 1937 (2009) has both (1) further explicated and (2) universalized Twombly's teaching.

It is thus the Twombly-Iqbal canon that has since controlled the treatment of complaints and does so here. Here is Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492-93 (7th Cir. 2011), a recent statement of the Rule 12(b)(6) standard by our Court of Appeals that employs long-familiar language without the overgenerous gloss that had been provided by Conley v. Gibson:

We construe the complaint in the light most favorable to the plaintiffs, accepting as true all well-pled facts alleged, taking judicial notice of matters within the public record, and drawing all reasonable inferences in the plaintiffs' favor.

This opinion adheres to that ...


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