Robbins v. Oklahoma, 07-7021.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation519 F.3d 1242
Docket NumberNo. 07-7021.,07-7021.
PartiesDustin ROBBINS and Melissa Gillum, as parents and next friends of Renee Dawn Robbins, a deceased minor, Plaintiffs-Appellees, v. State of OKLAHOMA, ex rel., Department of Human Services; Howard H. Hendrick; Deborah Crosslin; Nancy Vonbargen; Linda Hughes; John Does 1 Through 5; Jane Does; Casey Foreman, in his/her capacity acting under color of state law; Carla Beth McKinney, an individual, d/b/a Carla's Daycare, and/or McKinney's Daycare, Defendants-Appellants.
Decision Date21 March 2008

Richard W. Freeman, Jr., Assistant General Counsel, Department of Human Services, Oklahoma City, OK, (Joseph W. Strealy, Assistant General Counsel, Department of Human Services, Oklahoma City, OK, with him on the briefs), for Defendants-Appellants.

Christine Cave, Abowitz, Timberlake & Dahmke, P.C., Oklahoma City, OK, (Joe Carson, Buxton & Carson, PLLC, Oklahoma City, OK, with her on the briefs), for Plaintiffs-Appellees.

Before McCONNELL, BALDOCK, and GORSUCH Circuit Judges.

McCONNELL, Circuit Judge.

This case arises from the tragic death of an eight month old infant, Renee Dawn Robbins, the child of Dustin Robbins and Melissa Gillum. In 2003, Renee's parents sought financial assistance and other social services from the Oklahoma Department of Human Services ("DHS"). Employees of DHS informed Mr. Robbins and Ms. Gillum that Carla Beth McKinney operated a licensed and privately-owned daycare center in Tahlequah, Oklahoma, where they might obtain state subsidized care for Renee. Plaintiffs further allege that employees of DHS "informed" them that "the McKinney Daycare was the only daycare to which Renee could attend due to financial considerations." Comp. ¶¶ 19 & 20 (emphasis added). Following this consultation, Renee's parents placed her in Ms. McKinney's daycare where she suffered blunt force trauma to the head resulting in her death. The Chief Medical Examiner listed the manner of death as homicide; the state filed criminal charges of first degree murder against Ms. McKinney.

Renee's parents originally filed suit against the State of Oklahoma Department of Human Services, five named employees of DHS in their individual capacities, ten unnamed employees of DHS in their individual capacities, Carla Beth McKinney, and the McKinney Daycare, in the United States District Court for the Eastern District of Oklahoma on June 9, 2005. That case was voluntarily dismissed by the plaintiffs on September 7, 2005. This case was filed by Mr. Robbins and Ms. Gillum on September 7, 2006, against the same parties seeking damages and other relief under 42 U.S.C. § 1983 for alleged violations of Renee's constitutional rights and various torts in connection with Renee's death.

The Oklahoma Department of Human Services, Howard H. Hendrick, Nancy VonBargen, and Casey Foreman filed a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The court granted the defendants' motion to dismiss against DHS on the basis of sovereign immunity, but denied the motion with respect to the individual defendants. Hendrick, VonBargen, and Foreman filed a motion to reconsider. The court granted the motion with regard to the prayer for declaratory relief, but once again denied the individual defendants' qualified immunity claim on the prayer for damages because the court found that "it ha[d] insufficient information," and therefore that some discovery was necessary to determine whether qualified immunity shielded the defendants from suit. Robbins v. Oklahoma Dep't of Human Serv., No. 06-CV-367, 2007 WL 756694, *1 (E.D.Okla., March 7, 2007).

Defendants Hendrick, VonBargen, and Foreman appeal the partial denial of their motion to dismiss, and ask us to consider whether the plaintiffs have adequately stated a claim on which relief may be granted and whether they are entitled to qualified immunity. We reverse the district court's denial of defendants' motion to dismiss, and instruct that the suit be dismissed for failure to state a claim upon which relief can be granted.


Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." At the time when the district court denied the motion to dismiss, this and other courts generally embraced a liberal construction of the pleading requirement, derived from Conley v. Gibson: "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." 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added); see, e.g. Kikumura v. Osagie, 461 F.3d 1269, 1294 (10th Cir. 2006). Under this construction of Rule 8(a), a complaint containing only conclusory allegations could withstand a motion to dismiss unless its factual impossibility was apparent from the face of the pleadings — that is, a complaint was immune from dismissal if it left open the possibility that a fact not alleged in the complaint could render the complaint sufficient. Under this construction of the Rules, the district court in this case was probably correct when it concluded that it should deny the motion to dismiss when "it ha[d] insufficient information" to tell whether the complaint stated a claim or not. Robbins, 2007 WL 756694 at * 1.

Just two months after the district court decision, however, the Supreme Court handed down Bell Atlantic Corp. v. Twombly, rejecting the "no set of facts" language of Conley and announcing a new (or clarified) standard: to withstand a motion to dismiss, a complaint must contain enough allegations of fact "to state a claim to relief that is plausible on its face." ___ U.S. ___, ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Under this revised standard, as we explained in Ridge at Red Hawk, L.L.C. v. Schneider:

the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

493 F.3d 1174, 1177 (10th Cir.2007) (emphasis in original). The burden is on the plaintiff to frame a "complaint with enough factual matter (taken as true) to suggest" that he or she is entitled to relief. Twombly, 127 S.Ct. at 1965. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.

We are not the first to acknowledge that the new formulation is less than pellucid. See Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007) (referring to the "conflicting signals" in the Twombly opinion); Phillips v. County of Allegheny, 515 F.3d 224, 230-31 (3d Cir.2008) (calling the opinion "confusing"). As best we understand it, however, the opinion seeks to find a middle ground between "heightened fact pleading," which is expressly rejected, Twombly, 127 S.Ct. at 1974; see also id. at 1964 (a complaint "does not need detailed factual allegations"), and allowing complaints that are no more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action," which the Court stated "will not do." Id. at 1965.

The most difficult question in interpreting Twombly is what the Court means by "plausibility." The Court states that the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 1974. But it reiterates the bedrock principle that a judge ruling on a motion to dismiss must accept all allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven. "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and `that a recovery is very remote and unlikely.'" Id. at 1965 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Thus, "plausible" cannot mean "likely to be true." Rather, "plausibility" in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs "have not nudged their claims across the line from conceivable to plausible." Id. at 1974. The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.1

This requirement of plausibility serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them. "Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only `fair notice' of the nature of the claim, but also `grounds' on which the claim rests." Id. at 1965 n. 3. See Airborne Beepers & Video, Inc. v. AT & T Mobility L.L.C., 499 F.3d 663, 667 (7th Cir.2007) ("[A]t 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."). The Twombly Court was particularly critical of complaints that "mentioned no specific time, place, or person involved in the alleged conspiracies." 127 S.Ct. at 1971 n. 10. Given such a complaint, "a defendant seeking to respond to plaintiffs' conclusory allegations . . . would have little idea where to begin." Id.


The Third Circuit has noted, and we agree, that the degree of specificity necessary to establish plausibility and fair notice, and therefore the need to include sufficient factual allegations, depends on context: "Context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case. . . ." Phillips, 515 F.3d at 231-32. A simple negligence action based...

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