10th and 1st Circuit remand to permit amendment of claims dismissed under iqbal

In completely separate contexts, both the Tenth and First Circuits reversed dismissal of complaints, instructing the lower courts to permit amendment of the complaints.  Both courts were applying Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which dismissed a complaint based on the inadequacy of the factual allegations. The Tenth Circuit case involved a pro se prisoner alleging constitutional violations.  The appellate court held that some claims were clearly plausible, and for other claims, the prisoner should be allowed to amend his complaint. Gee v. Pacheco, 627 F.3d 1178 (10th Cir. Oct. 26, 2010).  The First Circuit case involved an employee alleging her firing constituted First Amendment political discrimination.  The court noted that she could not prove that any of the named defendants were responsible for her firing, but held she should be afforded the opportunity to amend her complaint to name “John Doe” as the responsible party.  Penalbert-Rosa v. Fortuno-Burset, 2011 WL 256220 (1st Cir. January 28, 2011).

In Gee, the Tenth Circuit found that the district court improperly relied on voluminous documents submitted by the prison to rebut the prisoner’s claims.  This effectively converted the motion to dismiss into a summary judgment motion, without notice to Mr. Gee.  The appellate court reviewed the motion to dismiss without any reference to these documents.  The court explained that it was “sufficient that he plead facts from which a plausible inference can be drawn that the action was not reasonably related to a legitimate penological interest.”  The court held that some of the claims were plausible, while others were not.  Yet, it was reversible error that the pro se plaintiff was not afforded an opportunity to amend the complaint to satisfy pleading standards before the complaint was dismissed with prejudice.

In Panalbert-Rosa, the court found that “the complaint adequately alleges-based on the non-conclusory facts …-that someone fired Peñalbert based on party membership.”  Yet, she clearly did not know who was the responsible party.  The First Circuit instructed the district court to allow her to add a “John Doe” defendant.  The court explained that it viewed Iqbal as “relatively recent” and stated that “developing a workable distinction between ‘fact’ and ‘speculation’ is still a work in progress.”  The court dismissed the complaint against the named defendants, but stated: “we think that the interests of justice warrant a remand to give Peñalbert a reasonable opportunity to move to amend the complaint to seek relief against a ‘John Doe’ defendant.”

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