Brewster McCauley v. City of Chicag

                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-3561

B REWSTER M C C AULEY, as Special Administrator
of the Estate of Mersaides McCauley,

                                                  Plaintiff-Appellant,
                                  v.


C ITY OF C HICAGO, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 09 C 2604—Amy J. St. Eve, Judge.



   A RGUED S EPTEMBER 15, 2010—D ECIDED O CTOBER 20, 2011




  Before M ANION, S YKES, and H AMILTON, Circuit Judges.
  S YKES, Circuit Judge. Mersaides McCauley was shot
and killed by her ex-boyfriend Glenford Martinez as she
left the parking lot of her church in Chicago. Martinez
then turned the gun on himself. At the time of the murder-
suicide, Martinez was on parole for an earlier homicide
and had a history of harassing and assaulting McCauley
2                                               No. 09-3561

in violation of his parole and a court order of protection
issued on her behalf. Chicago law-enforcement and
Illinois corrections officials were aware of these viola-
tions and could have ensured that Martinez was
detained without bail, but they neither issued a parole-
violation warrant nor arrested him for violating the
order of protection.
  After Mersaides’s death, her father, Brewster McCauley,
as administrator of her estate, filed suit in state court
against the City of Chicago and several of its officials,
the Illinois Department of Corrections (“IDOC”) and its
director, and Martinez’s estate. The complaint alleged
13 separate federal and state claims for relief; those rele-
vant here are equal-protection claims against the City
of Chicago and the IDOC director.
  The city and state defendants removed the case to
federal court and promptly moved to dismiss. The
district court granted the motion. The court held that
female victims of domestic violence are not a “suspect”
or “protected” class for purposes of equal-protection
analysis, so McCauley’s equal-protection claim against
the City failed as a matter of law. The court also held
that McCauley’s claim against the IDOC director was
barred by the Eleventh Amendment because the claim
sought damages from the director in his official capacity.
McCauley asked for leave to conduct limited discovery
in the hope of finding a basis for a personal-capacity equal-
protection claim against the IDOC director. The dis-
trict court denied this request. McCauley appealed.
  We affirm, although on different grounds. The com-
plaint does not plausibly state a policy-or-practice equal-
No. 09-3561                                               3

protection claim against the City. It contains only general-
ized allegations that the City failed to have specific
policies in effect to protect victims of domestic violence
from harm inflicted by those who violate their parole
or court orders of protection by committing acts of domes-
tic violence. The complaint alleges, in essence, that the
City failed to single out domestic-violence victims as a
class for special protection, not that the City denied this
class of victims equal protection.
  McCauley does not contest the dismissal of his equal-
protection claim against the IDOC director in his official
capacity, but he does seek review of the court’s denial of
his request for limited discovery for the purpose of
finding a basis for a personal-capacity claim. At oral
argument, however, McCauley’s counsel admitted he
had no reason to believe the IDOC director had any
personal involvement in supervising Martinez’s parole,
let alone any of the events leading to Mersaides’s
death. Accordingly, the district court properly denied
the request for Rule 12(b)(6) discovery.


                      I. Background
   In 1993 Martinez was convicted of murder and
attempted murder and sentenced to 28 years in prison.
He was released in 2006 and placed on mandatory super-
vised release for three years. In November 2007 Martinez
was arrested and charged with domestic battery for
allegedly choking Mersaides McCauley, his former girl-
friend, until she lost consciousness. Two days later an
Illinois state court entered an emergency order of pro-
4                                              No. 09-3561

tection against Martinez on behalf of Mersaides. Later
that month the court issued a plenary order of protec-
tion. Both orders prohibited Martinez from having any
contact with Mersaides.
  On two separate occasions, the Cook County State’s
Attorney’s Office informed Martinez’s parole officer at
IDOC of the battery charge and arrest. The arrest was a
parole violation and subjected Martinez to immediate
detention without bail until his trial on the domestic-
battery charge. Despite having received this informa-
tion, no one at IDOC ever issued a parole-violation
warrant against Martinez. After his release on bail, Marti-
nez continued to contact Mersaides, repeatedly violating
the orders of protection. The complaint alleges that Chi-
cago police were aware of these violations but never
arrested Martinez.
  That Martinez remained a free man ended tragically
for Mersaides. As she was leaving a church service on
the evening of April 6, 2008, Martinez blocked her
vehicle with his own, trapping her in the church
parking lot. He shot her multiple times, and she died of
the gunshot wounds 30 minutes later. After leaving
the scene, Martinez turned the gun on himself and com-
mitted suicide.
  Mersaides’s father, Brewster McCauley, filed this suit
as special administrator of his daughter’s estate. The
complaint alleged 13 federal and state claims (primarily
for deprivation of due process and equal protection, and
for wrongful death) against the City of Chicago and
unidentified Chicago police officers, IDOC, various IDOC
No. 09-3561                                              5

officials, then-IDOC Director Roger Walker, and Martinez’s
estate. The city and state defendants removed the case to
federal court and moved to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. The
district court granted the motion, dismissed the federal
claims, and declined to exercise supplemental jurisdic-
tion over the state-law claims. See 

28 U.S.C. § 1367

(c)(3);
Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 

551 F.3d 599, 607

 (7th Cir. 2008).
  Only the equal-protection claims against the City and
Walker are at issue on appeal. The claim against the City
was a policy-or-practice claim under Monell v. Depart-
ment of Social Services, 

436 U.S. 658, 694

 (1978). The com-
plaint variously alleges that the City failed to have ade-
quate policies in place for the protection of female
victims of domestic violence. The court began its analysis
of this claim by rejecting McCauley’s contention that
female victims of domestic violence are a “suspect class”
for equal-protection purposes. The judge opted for
rational-basis review and then concluded that to avoid
dismissal, McCauley needed to show that Mersaides
was a member of a protected class. Noting that “protected
class” and “suspect class” mean the same thing in equal-
protection doctrine, the judge held that McCauley
could not establish a necessary prerequisite for a claim
under the Equal Protection Clause; that is, because
Mersaides did not belong to a suspect class, she did not
belong to a protected class either. That meant, the court
held, that McCauley could not satisfy the first require-
ment of a prima facie case of discrimination under the
Equal Protection Clause. Finally, the court held that the
6                                                No. 09-3561

complaint failed to state a “class of one” equal-protection
claim against the City.
  As for the claim against IDOC Director Walker, the
district court held that the Eleventh Amendment’s
sovereign-immunity protections barred McCauley from
recovering damages against him in his official capacity.
See Bd. of Trs. of Univ. of Ala. v. Garrett, 

531 U.S. 356, 363

(2001); Peirick v. IUPUI Athletics Dep’t, 

510 F.3d 681, 695

(7th Cir. 2007); Joseph v. Bd. of Regents of the Univ. of Wis.
Sys., 

432 F.3d 746, 748

 (7th Cir. 2005). McCauley asked the
court for a limited opportunity to conduct discovery in
an effort to find a factual basis for a personal-capacity
claim against Walker. The court denied this request,
essentially holding that it would be futile. Because
McCauley’s equal-protection claim against the City
failed as a matter of law, the court thought any similar
claim against Walker in his personal capacity would fail
as well.


                      II. Discussion
A. McCauley’s Equal-Protection Claim Against the City
   We review de novo the district court’s order dismissing
the equal-protection claim against the City. Brooks v. Ross,

578 F.3d 574, 578

 (7th Cir. 2009). To avoid dismissal,
McCauley’s complaint must contain allegations that
“ ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 

129 S. Ct. 1937, 1949

 (2009) (quoting Bell
Atl. Corp. v. Twombly, 

550 U.S. 544, 570

 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual
No. 09-3561                                                   7

content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” 

Id.

  We note first that the district court’s analysis of
McCauley’s claim against the City suffers from some
analytical confusion; it conflates several distinct strains
of equal-protection doctrine. The court began by
holding that strict scrutiny did not apply because
female victims of domestic violence are not a “suspect
class” for purposes of equal-protection analysis. The
court then opted for rational-basis review, bypassing
any form of intermediate scrutiny. The judge then took
a detour into the caselaw that applies to claims of dis-
crimination in public employment under the Equal Pro-
tection Clause, citing Brown v. Budz, 

398 F.3d 904, 916

(7th Cir. 2005), and Salas v. Wisconsin Department of Cor-
rections, 

493 F.3d 913, 926

 (7th Cir. 2007), for the ele-
ments of a prima facie case under the burden-shifting
approach borrowed from Title VII. Using this framework,
the court held that because female domestic-violence
victims are not a protected class, McCauley could not
establish the first requirement of a prima facie case of
discrimination. Finally, the court held that because the
equal-protection claim was premised on Mersaides’s
group affiliation as a victim of domestic violence, the
complaint did not state a claim for a “class of one” equal-
protection violation. See generally, Vill. of Willowbrook
v. Olech, 

528 U.S. 562, 564

 (2000) (recognizing a “class of
one” equal-protection claim); Srail v. Vill. of Lisle, Ill., 

588 F.3d 940, 943-44

 (7th Cir. 2009) (discussing the elements
of a “class of one” claim).
8                                                   No. 09-3561

  This analysis is problematic for several reasons. For
starters, analyzing the equal-protection claim under class-
of-one doctrine was error. This is not a class-of-one
case; McCauley has never contended that it is. Nor
is the burden-shifting prima facie case methodology
appropriate here. That formula has been used in
employment-discrimination claims arising under the
Equal Protection Clause or 

42 U.S.C. § 1981

 because equal-
protection claims alleging discrimination in public em-
ployment can be analogized to claims under Title VII.
Importing the prima facie case requirements from Title
VII doctrine makes sense in the public-employment
context, but that approach does not apply more
broadly to all equal-protection cases. Finally, whether
female domestic-violence victims are properly con-
sidered a “suspect” or “protected” class for equal-protec-
tion analysis is a merits question. The answer deter-
mines what level of judicial review applies to the defen-
dant’s actions, see, e.g., Srail, 

588 F.3d at 943

, a question
not normally appropriate for resolution at the
pleadings stage.1



1
  We note for completeness that McCauley makes alternative
arguments on this point. He first argues that female victims
of domestic violence ought to be recognized as a suspect class
for equal-protection analysis, requiring strict scrutiny of the
City’s actions. He argues in the alternative that the claim
should be treated as more generally alleging discrimination
on the basis of gender, which calls for the application of inter-
mediate scrutiny. See United States v. Virginia, 

518 U.S. 515, 531

 (1996).
No. 09-3561                                                  9

  Though the district court’s analysis was faulty, the
equal-protection claim against the City was properly
dismissed. To state a Monell claim against the City for
violation of Mersaides’s right to equal protection,
McCauley was required to “plead[] factual content that
allows the court to draw the reasonable inference” that
the City maintained a policy, custom, or practice of in-
tentional discrimination against a class of persons to
which Mersaides belonged. See Iqbal, 

129 S. Ct. at 1949

;
Monell, 

436 U.S. at 694

; Srail, 

588 F.3d at 943

. He did not
meet this burden.
  In reviewing the sufficiency of a complaint under the
plausibility standard announced in Twombly and Iqbal, we
accept the well-pleaded facts in the complaint as true,
but legal conclusions and conclusory allegations merely
reciting the elements of the claim are not entitled to
this presumption of truth. Iqbal, 

129 S. Ct. at 1951

. After
excising the allegations not entitled to the presumption,
we determine whether the remaining factual allega-
tions “plausibly suggest an entitlement to relief.” 

Id.

 The
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Twombly, 

550 U.S. at 555

. That is, the complaint must contain “allegations
plausibly suggesting (not merely consistent with)” an
entitlement to relief. 

Id. at 557

. If the allegations give rise
to an “obvious alternative explanation,” Iqbal, 

129 S. Ct. at 1951

; Twombly, 

550 U.S. at 567

, then the complaint
may “stop[] short of the line between possibility and
plausibility of ‘entitle[ment] to relief,’ ” Twombly, 

550 U.S. at 557

. Making the plausibility determination is “a con-
text-specific task that requires the reviewing court to
10                                              No. 09-3561

draw on its judicial experience and common sense.”
Iqbal, 

129 S. Ct. at 1950

.
  We have interpreted Twombly and Iqbal to require the
plaintiff to “provid[e] some specific facts” to support
the legal claims asserted in the complaint. Brooks, 

578 F.3d at 581

. The degree of specificity required is not
easily quantified, but “the plaintiff must give enough
details about the subject-matter of the case to present
a story that holds together.” Swanson v. Citibank, N.A., 

614 F.3d 400, 404

 (7th Cir. 2010). The required level of
factual specificity rises with the complexity of the claim.

Id. at 405

 (“A more complex case . . . will require more
detail, both to give the opposing party notice of what
the case is all about and to show how, in the plaintiff’s
mind at least, the dots should be connected.”).
  Brooks and Swanson help illustrate the factual heft
required to survive a motion to dismiss after Twombly
and Iqbal. In Brooks the plaintiff was prosecuted for
official misconduct and wire fraud relating to his duties
as a Prison Review Board member. 

578 F.3d at 578

. He
was acquitted on these charges and filed suit alleging
a vast conspiracy by fellow board members, a state
police officer, an IDOC employee, and the Illinois
Attorney General based on their participation in or co-
operation with the investigation against him. 

Id.

 The
complaint alleged that the defendants “knowingly, inten-
tionally[,] and maliciously prosecute[d]” him in retalia-
tion for his exercise of constitutionally protected rights.

Id. at 582

. We held that this was “nothing more” than a
“formulaic recitation of the cause of action,” insufficient
No. 09-3561                                               11

to state a claim under Twombly and Iqbal. 

Id.

 The
remaining allegations—primarily explaining each defen-
dant’s role in the investigation—were just as consistent
with a lawful investigation as an illegal conspiracy to
retaliate against Brooks. 

Id. at 581

 (“The behavior Brooks
has alleged that the defendants engaged in is just as
consistent with lawful conduct as it is with wrongdoing.”).
Accordingly, we affirmed the dismissal of the com-
plaint. 

Id. at 582

.
   In Swanson, on the other hand, we applied Twombly/
Iqbal and held that the plaintiff’s allegations were suf-
ficient to survive a motion to dismiss on at least some
of her claims. Swanson, an African-American loan appli-
cant who was turned down for a loan, claimed that that
the denial was based on her race in violation of the
Fair Housing Act (among other causes of action). 

614 F.3d at 402-03

. Her complaint alleged that the defendants
intentionally undervalued her home and that they did
so because of her race. 

Id. at 403

. She alleged that a third-
party appraiser had valued the home at $240,000, much
higher than the defendant’s valuation of $170,000. 

Id.

We held that because Swanson’s claim of housing dis-
crimination was uncomplicated, Swanson’s pleading
burden under Twombly and Iqbal was satisfied. 

Id. at 404

.
Her complaint contained factual allegations identifying
(1) who discriminated against her; (2) the type of dis-
crimination that occurred; and (3) when the discrimina-
tion took place. 

Id. at 405

. We held that given the straight-
forward nature of the claim, Twombly/Iqbal required
nothing more. 

Id.

 (citing Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 511-12

 (2002)).
12                                              No. 09-3561

  This case is more like Brooks than Swanson. Many of
the alleged “facts” are actually legal conclusions or ele-
ments of the cause of action, which may be disregarded
on a motion to dismiss. See Iqbal, 

129 S. Ct. at 1951

. For
example, McCauley alleges that the City “has an
unwritten custom, practice and policy to afford lesser
protection or none at all to victims of domestic violence”
and that “[t]here is no rational basis” for this purported
policy. Similarly, McCauley alleged the following:
     [The City], through its agents, employees and/or
     servants, acting under color of law, at the level of
     official policy, practice, and custom, with deliberate,
     callous, and conscious indifference to McCauley’s
     constitutional rights, authorized, tolerated, and in-
     stitutionalized the practices and ratified the illegal
     conduct herein detailed, and at all times material to
     this Complaint, [the City] had interrelated de facto
     policies, practices, and customs.
These are the legal elements of the various claims
McCauley has asserted; they are not factual allegations
and as such contribute nothing to the plausibility
analysis under Twombly/Iqbal.
  Once the legal conclusions are disregarded, just one
paragraph of factual allegations remains:
     Defendant violated McCauley’s constitutional rights
     under 

42 U.S.C. § 1983

 by:
        a.   failing to provide adequate security and
             promptly arrest Martinez;
No. 09-3561                                                13

       b.     failing to promulgate any policy to ensure
              the prompt arrest of individuals guilty of
              violating protective orders;
       c.     maintaining a policy or custom of failing
              to timely arrest violators of protective orders;
       d. maintaining a custom and practice of failing
          to adequately train officers concerning the
          necessity of promptly arresting individuals
          guilty of violating protective orders;
       e.     maintaining a policy or custom of failing to
              have safeguards in place to ensure that viola-
              tors of protective orders were timely arrested;
       f.     failing to have a custom, practice and policy
              in effect to verify whether someone who is
              arrested for domestic violence is on parole;
       g. failing to have a custom, practice and policy
          to communicate with state officials and law
          enforcement officials regarding domestic
          violence arrests;
       h. failing to have a custom, practice and policy
          in effect in order to communicate with
          parole agents on domestic violence arrests;
       i.     failing to have a custom, practice and policy
              in effect to verify whether an arrestee of a
              domestic violence offense is on parole prior
              to issuing an order of protection; and
       j.     maintaining a custom, practice and policy of
              ignoring the seriousness of domestic violence
              arrests.
14                                               No. 09-3561

   McCauley maintains that these allegations are suf-
ficient to state a Monell equal-protection claim against
the City. We disagree. In order to state a facially
plausible equal-protection claim under Monell, the
factual allegations in McCauley’s complaint must allow
us to draw the reasonable inference that the City estab-
lished a policy or practice of intentionally discriminating
against female victims of domestic violence in the provi-
sion of police protection. That is, McCauley needed to
allege enough “by way of factual content to ‘nudg[e]’ his
claim of purposeful discrimination ‘across the line
from conceivable to plausible.’ ” Iqbal, 

129 S. Ct. at 1952

(quoting Twombly, 

550 U.S. at 570

)).
   Because the Equal Protection Clause is “concerned . . .
with equal treatment rather than with establishing
entitlements to some minimum of government services,
[it] does not entitle a person to adequate, or indeed to
any, police protection.” Hilton v. City of Wheeling, 

209 F.3d 1005, 1007

 (7th Cir. 2000); see also DeShaney v.
Winnebago Cnty. Dep’t of Soc. Servs., 

489 U.S. 189, 196

(1989) (The government’s failure to protect an individual
from private violence is not actionable under the Due
Process Clause.). “On the other hand, selective with-
drawal of police protection, as when the Southern states
during the Reconstruction era refused to give police
protection to their black citizens, is the prototypical denial
of equal protection.” Hilton, 

209 F.3d at 1007

. The allega-
tions in the paragraph quoted above do not plausibly
suggest that the City maintained a policy or practice of
selective withdrawal of police protection. To the contrary,
the complaint alleges that the City failed to have par-
No. 09-3561                                               15

ticularized practices in place for the special protection of
domestic-violence victims. In essence, the complaint
alleges that the City failed to promulgate specific
policies for this particular class of crime victims, not that
the City denied this class of victims equal protection. At
most, the factual allegations in the complaint plausibly
suggest the uneven allocation of limited police-protection
services; they do not plausibly suggest that the City
maintained an intentional policy or practice of omitting
police protection from female domestic-violence victims
as a class.
  Just as in Brooks, McCauley’s factual allegations are
entirely consistent with lawful conduct—here a lawful
allocation of limited police resources. 

578 F.3d at 581

. And
the complexity of McCauley’s equal-protection claim
distinguishes this case from Swanson. The housing-dis-
crimination claim at issue in Swanson was quite straight-
forward. Putting the defendants on notice of what it
entailed was simple, so Swanson did not need to plead
much by way of factual content in her complaint. There,
in the absence of an obvious legal alternative explana-
tion, pleading the “who, what, and when” of the dis-
crimination claim was enough. See Swanson, 

614 F.3d at 405

. Here, McCauley’s equal-protection claim is more
complicated and counterintuitive. Yet he has alleged
only that the City failed to have particularized safe-
guards in place for the special protection of domestic-
violence victims. For the reasons we have explained, this
does not state a Monell equal-protection claim against
the City. This claim was properly dismissed.
16                                                 No. 09-3561

B. Predismissal Discovery Against Walker
  McCauley does not challenge the district court’s order
dismissing the official-capacity equal-protection claim
against Walker on Eleventh Amendment grounds. In-
stead, he argues that the court should have allowed him
to conduct limited discovery regarding Walker’s per-
sonal involvement in the events leading to Mersaides’s
murder on the chance he might unearth a basis for a
claim against Walker in his individual capacity. We
review the denial of McCauley’s discovery request for
abuse of discretion. Griffin v. Foley, 

542 F.3d 209, 223

(7th Cir. 2008).
   The district court’s refusal to authorize Rule 12(b)(6)
discovery was based largely on the court’s view that any
personal-capacity claim against Walker would suffer
from the same deficiencies as the Monell claim against
the City; namely, that Mersaides was not a member of a
“suspect” or “protected” class for equal-protection pur-
poses. For the reasons we have explained, this analysis
is flawed. We nonetheless affirm on other grounds.
  To determine whether pre-Rule 12(b)(6) discovery
should have been available in this case, we need not
decide the broader and more provocative question
whether it should be available in general, in light of the
Twombly/Iqbal pleading regime.2 This is not a proper case


2
  Proposals for some form of “Rule 12(b)(6) discovery” have
proliferated in academic circles in the wake of Twombly and
Iqbal. See, e.g., Arthur R. Miller, From Conley to Twombly to
                                                  (continued...)
No. 09-3561                                                      17

for Rule 12(b)(6) discovery in any event. McCauley’s
counsel conceded at oral argument that he “has nothing”
to suggest that Walker was personally involved in any of
the events leading to Mersaides’s death. Indeed, based on
the complaint, there is no reason at all to think the IDOC
director had any personal role in Martinez’s parole super-
vision, much less the specific events preceding Mersaides’s
death. Accordingly, the denial of McCauley’s request
for Rule 12(b)(6) discovery was not an abuse of discretion.
                                                       A FFIRMED.




2
   (...continued)
Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60
D UKE L. J. 1, 105-10 (2010); Scott Dodson, New Pleading, New
Discovery, 109 M ICH . L. R EV . 53 (2010); Edward A. Hartnett,
Taming Twombly, Even After Iqbal, 158 U. P A . L. R EV . 473 (2010).
The theory underlying this effort is that the plausibility
standard for surviving a motion to dismiss requires new tools
to meet the higher bar, especially where the information
necessary to survive a motion to dismiss is wholly or largely
in the defendant’s hands. See Miller, supra, at 105 (“Since the
combined effect of Twombly, Iqbal, and the summary judgment
trilogy is to require a plaintiff to have greater knowledge
concerning his claim either before instituting an action or
immediately thereafter, inequality of information access
during those critical time frames poses a significant—if not
the most significant—problem for many people seeking af-
firmative relief.”).
18                                                  No. 09-3561

  H AMILTON, Circuit Judge, dissenting in part. I agree
with my colleagues that plaintiff has failed to state a
claim against defendant Walker. I respectfully dissent
from the rejection of plaintiff’s equal protection claim
against the City of Chicago. I am skeptical about
plaintiff’s ability to prove the claim, but his complaint
should be sufficient to survive a motion to dismiss for
failure to state a claim, even under the new and
subjective pleading standards announced in Ashcroft v.
Iqbal, 

129 S. Ct. 1937

 (2009). I explain first my skepticism,
then some of the problems raised by Iqbal, and finally
why the complaint should survive the motion to dismiss.
   Mr. McCauley’s suit seeks to enforce the Fourteenth
Amendment’s equal protection requirements on the
decisions of a major city police force about how to
allocate its resources. Plaintiff’s only viable equal pro-
tection theory is that the Chicago police department
made a deliberate decision to minimize the police pro-
tection available to victims of domestic violence, and
that the police did so because of an intentional animus
against women, who make up the vast majority of adult
victims of domestic violence. See Bureau of Justice Statis-
tics, U.S. Dept. of Justice, Family Violence Statistics 11 (2005),
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fvs.
pdf (last visited Oct. 17, 2011) (finding that women
were 84% of spouse abuse victims and 86% of victims
of abuse at the hands of a boyfriend or girlfriend).
  As I said, I am skeptical about the plaintiff’s ability to
prove such a claim. We require proof of intentional
animus and do not hold municipalities liable for a mere
No. 09-3561                                             19

failure to arrest, no matter how tragic the consequences
appear in hindsight. E.g., Hernandez v. City of Goshen, 

324 F.3d 535

, 538 (7th Cir. 2003), following DeShaney v.
Winnebago County Dep’t of Social Services, 

489 U.S. 189

(1989). This approach avoids difficult questions that are
all but unanswerable by courts in practice. To begin
with, how should the police allocate their resources? And
how should a federal court measure equality in the al-
location of those resources? Should we focus on patrol
officers on the beat per square mile? Per capita? Based on
neighborhood crime rates? How should we gauge the
seriousness of different crimes? Surely armed robberies
deserve more attention than acts of vandalism, and
attacks on vulnerable persons probably deserve more
attention than bar fights.
  A few moments of reflection could generate a list of
many more variables and factors that a sensible citizen
would want the police to consider in deciding how to
allocate their resources for crime prevention. And no
matter how a police department decides to allocate its
resources, it will be possible to identify categories of
crime victims who receive below-average attention from
the police. There is no way to ensure complete equality,
and the infinite variations in the ways to measure
equality require any court considering the question to
act with great caution.
  And yet the courthouse door must remain open to
claims that the police are systematically denying some
people the literal equal protection of the law. The history
of the Reconstruction after the Civil War reminds us that
20                                                No. 09-3561

state and local governments deliberately and systemati-
cally denied equal protection of the laws to former
slaves and their descendants. More recently, the
Jim Crow laws, internment of Japanese Americans, segre-
gation, voting restrictions, gender discrimination, and
harassment of Muslim Americans in the wake of the
September 11, 2001 terrorist attacks all remind us that
concerns about equal protection are not just matters of
bygone history. A deliberate decision to withdraw or
substantially reduce police protection to groups based
on race, national origin, gender, religion, or political
affiliation should qualify for federal court attention
and remedies.
   We and other federal courts have often recognized
the legal viability of such claims, even if they are difficult
to prove. See, e.g., Schroeder v. Hamilton School Dist., 

282 F.3d 946, 957

 (7th Cir. 2002) (“the core violation of
the equal protection clause is indeed the selective with-
drawal of police protection from a disfavored group”)
(Posner, J., concurring); Hilton v. City of Wheeling, 

209 F.3d 1005, 1007

 (7th Cir. 2000), citing Slaughter-House
Cases, 

83 U.S. (16 Wall.) 36, 70

 (1872); Elliot-Park v.
Manglona, 

592 F.3d 1003, 1007-08

 (9th Cir. 2010) (refusing
to dismiss plaintiff’s claim that officers’ failure to investi-
gate and arrest a drunk driver because of alleged racial
favoritism violated equal protection); Price-Cornelison
v. Brooks, 

524 F.3d 1103, 1113-14

 (10th Cir. 2008) (affirming
denial of qualified immunity where no rational basis
was asserted for alleged policy of providing less pro-
tection to lesbian victims of domestic violence than to
No. 09-3561                                                21

heterosexual victims), citing Watson v. City of Kansas City,
Kansas, 

857 F.2d 690

 (10th Cir. 1988); see also Okin v.
Village of Cornwall-On-Hudson Police Dep’t, 

577 F.3d 415, 438-39

 (2d Cir. 2009) (affirming summary judgment
because plaintiff had not demonstrated the requisite
disparate treatment of her domestic violence com-
plaint); Burella v. City of Philadelphia, 

501 F.3d 134, 148-49

(3d Cir. 2007).
  As a claim that may seem improbable but not impos-
sible, difficult to prove but not implausible, this case
poses a test for federal civil pleading standards in the
wake of Ashcroft v. Iqbal. In Iqbal, plaintiffs alleged that
they had been mistreated by federal law enforcement
officials because of their religion and their national
origin in the wake of the September 11, 2001 terrorist
attacks on the United States. The appeal concerned the
plaintiffs’ claims against the Attorney General of the
United States and the Director of the Federal Bureau of
Investigation. The Supreme Court recognized that the
alleged actions of the federal law enforcement officials
could have been perfectly legal so long as they were
based on even-handed application of the law, but that
mistreatment based deliberately on religion or national
origin could violate the Constitution. 

129 S. Ct. at 1952

.
  The Court held in Iqbal that the plaintiffs had failed
to allege a plausible claim of religious or national origin
discrimination against Attorney General Ashcroft
and FBI Director Mueller. Although the plaintiffs had
alleged discriminatory intent, the Court found that the
complaint did not “contain any factual allegation suf-
22                                              No. 09-3561

ficient to plausibly suggest petitioners’ discriminatory
state of mind.” 

Id.

 The Court wrote that determining
whether a claim is plausible would “be a context-specific
task that requires the reviewing court to draw on its
judicial experience and common sense.” 

Id. at 1950

. The
method of analysis employed by the Court in Iqbal in-
volved first “identifying the allegations in the complaint
that are not entitled to the assumption of truth” because
they are merely a “formulaic recitation of the elements”
of the claim and thus “conclusory.” 

Id. at 1951

. The
Court then looked only to the portions of the com-
plaint it deemed to be “factual allegations” to make
a subjective plausibility determination.
   As a subordinate federal court, it is our responsibility
to do our best to apply the law as stated in Iqbal. My
colleagues do so here, and the Iqbal standard is clearly
decisive for the panel majority. The problem here is that
it also our responsibility to do our best to apply other
Supreme Court decisions involving pleading standards,
including Leatherman v. Tarrant County Narcotics Intel-
ligence and Coordination Unit, 

507 U.S. 163

 (1993); Erickson
v. Pardus, 

551 U.S. 89

 (2007); and Swierkiewicz v. Sorema
N.A., 

534 U.S. 506

 (2002), as well as the Federal Rules
of Civil Procedure as adopted by the Court and
approved by Congress, and the form pleadings that
are part of the Federal Rules of Civil Procedure and
that were also approved by the Court and Congress. Iqbal
is in serious tension with these other decisions, rules,
and forms, and the Court’s opinion fails to grapple with
or resolve that tension. I do not believe it is an exaggera-
No. 09-3561                                                   23

tion to say that these decisions, rules, and forms simply
conflict with Iqbal.
  As a result of this unresolved tension, since Iqbal was
decided, the lower federal court decisions seeking to
apply the new “plausibility” standard are wildly incon-
sistent with each other, and with the conflicting decisions
of the Supreme Court. Iqbal has also generated a small
blizzard of articles by law professors and practitioners
critiquing the decision and analyzing its implications.
One of the most useful and persuasive of those is
Professor Arthur Miller’s article, From Conley to Twombly
to Iqbal: A Double Play on the Federal Rules of Civil Procedure,
60 Duke L. J. 1 (2010). See also, e.g., Robert Bone, Plausibility
Pleading Revisited and Revised: A Comment on Ashcroft v.
Iqbal, 

85 Notre Dame L. Rev. 849

 (2010); Patricia W.
Hatamyar, The Tao of Pleading: Do Twombly and Iqbal
Matter Empirically?, 

59 Am. U. L. Rev. 553

 (2010) (finding
statistically significant differences in the treatment of
motions to dismiss, particularly with regard to civil
rights cases); Hon. Colleen McMahon, The Law of Unin-
tended Consequences: Shockwaves in the Lower Courts after
Bell Atlantic v. Twombly, 

41 Suffolk U. L. Rev. 851

 (2008).
  Without revisiting the entirety of this lengthy critique,
I note below some of the key problems that Iqbal presents
for federal district and circuit judges, and the parties
and attorneys who litigate cases before them:
 First, Iqbal’s reasoning and holding conflict with
Rule 9(b), which requires that a party alleging fraud or
mistake “state with particularity the circumstances con-
24                                              No. 09-3561

stituting fraud or mistake.” As for other states of mind,
however, the rule provides: “Malice, intent, knowledge,
and other conditions of a person’s mind may be alleged
generally.” In this context, “generally” means as a conclu-
sion, without specifying underlying facts that would
support the inference. For example, this provision has
long been understood not to require that discriminatory
intent be alleged with particularity in employment dis-
crimination cases. See Swierkiewicz, 

534 U.S. at 512

 (unani-
mously rejecting requirement that employment discrim-
ination complaint plead facts satisfying elements of
prima facie case, because “imposing the Court of Ap-
peals’ heightened pleading standard in employment
discrimination cases conflicts with Federal Rule of Civil
Procedure 8(a)(2)”).
  Note that Bell Atlantic Corp. v. Twombly endorsed the
continued vitality of Swierkiewicz. 

550 U.S. 544, 569-70

(2007); see also Miller, 60 Duke L. J. at 31. Iqbal also
seemed to endorse the key Swierkiewicz holding re-
garding heightened pleading standards, noting that
Rule 9 “excuses a party from pleading discriminatory
intent under an elevated pleading standard.” 

129 S. Ct. at 1954

 (disclaiming a “rigid rule requiring the detailed
pleading of a condition of mind” as “undesirable”). But
in the analysis that was actually decisive in the
case, however, the Iqbal Court held that under Rule 8
the complaint lacked “any factual allegation sufficient
to plausibly suggest petitioners’ discriminatory state of
mind.” 

Id. at 1952

. Iqbal does not elaborate on the nature
and number of specific facts that must be included in
the Rule 8 “short and plain statement of the claim” in
No. 09-3561                                              25

order to achieve plausibility. The Court’s application
of Rule 8 to impose a more demanding pleading
standard for discriminatory intent is not consistent with
its stated adherence to Rule 9 and its express authoriza-
tion of general pleading of discriminatory intent and
most other states of mind. The Court’s statement about
Rule 9(b) that “ ‘generally’ is a relative term” does not
solve the problem or give practical guidance to district
courts. See 

id. at 1954

.
  Second, Iqbal conflicts with other recent Supreme Court
decisions. Iqbal did not overrule or question a number
of the Court’s prior cases on notice pleading. See
Leatherman, 

507 U.S. at 168

 (unanimously rejecting height-
ened pleading standard for custom-or-policy claim
under 

42 U.S.C. § 1983

); Erickson, 

551 U.S. at 90

 (after
Twombly, summarily reversing dismissal of pro se
prisoner’s complaint for deliberate indifference to
medical needs where the court of appeals deemed the
complaint too “conclusory” with respect to whether
defendant’s actions caused “substantial harm,” and
finding that: “The holding departs in so stark a manner
from the pleading standard mandated by the Federal
Rules of Civil Procedure that we grant review.”). Many
cases, citing Leatherman, reject heightened pleading stan-
dards for the elements of a Monell custom or policy
claim such as the one alleged here. See, e.g., Jackson v.
Marion County, 

66 F.3d 151, 153

 (7th Cir. 1995) (“Leatherman
makes clear that the federal courts are not to interpolate
a requirement of fact pleading into the federal rules.”).
As noted, Iqbal also created tension with Swierkiewicz
by endorsing its holding while simultaneously ap-
26                                               No. 09-3561

pearing to require the same sort of fact-specific
pleading of discriminatory intent that the Swierkiewicz
Court rejected.
  Third, Iqbal conflicts with the form complaints
approved by the Supreme Court and Congress as part of
the Federal Rules of Civil Procedure. Rule 84 provides
that the forms in the appendix “suffice under these
rules and illustrate the simplicity and brevity that
these rules contemplate.” Iqbal did not purport to over-
rule or amend Rule 84 or the forms, but it is difficult
to reconcile the new “plausibility” standard with those
forms. Many of the approved forms require virtually
no explanation of the underlying facts as long as the
defendant is informed of the event or transaction that
gave rise to the claim, according to the broad notice
purpose of the rules.
   For example, Form 15 is a complaint for the conver-
sion of property. It is sufficient for the plaintiff to allege
that on a stated date at a stated place, “the defendant
converted to the defendant’s own use property owned
by the plaintiff,” and to identify the converted prop-
erty and state its approximate value. Nothing more
is needed — no factual details about the defendant’s
actions, and no allegation concerning the defendant’s
state of mind. Under the plausibility standard of Iqbal,
this form complaint seems remarkably “conclusory,” yet
it is sufficient according to Rule 84.
  Similarly, Form 11 is a complaint for negligence. Apart
from jurisdiction and damages, it is sufficient for the
complaint to say only that on a stated date at a stated
No. 09-3561                                              27

place, defendant “negligently drove a motor vehicle
against the plaintiff.” Again, nothing more is needed
about just what the defendant did or why those ac-
tions amounted to negligence. This also seems quite
“conclusory,” but it is sufficient under Rule 84. But cf.
Branham v. Dolgencorp, Inc., 

2009 WL 2604447

, *2
(W.D. Va. Aug. 24, 2009) (applying Iqbal standard to
dismiss slip-and-fall negligence complaint because it
failed to allege “facts that show how the liquid came to
be on the floor, whether the Defendant knew or should
have known of the presence of the liquid, or how the
Plaintiff’s accident occurred”).
  Even Form 21, which includes a claim to set aside a
fraudulent conveyance, is remarkably terse. That portion
of the form complaint says only that on a stated date, the
defendant conveyed all or a specified portion of defen-
dant’s real and personal property to another defendant
“for the purpose of defrauding the plaintiff and hind-
ering or delaying the collection of the debt.” Again,
nothing more is needed about the circumstances of
the conveyance, and the “general” or “conclusory” allega-
tion of a purpose to defraud is sufficient. One could go
on with parallel analysis of the other form complaints.
  Unless one can plausibly explain away the tension
between Iqbal and Rule 9(b) and the Rule 84-endorsed
form complaints, then Iqbal conflicts with the Rules En-
abling Act, 

28 U.S.C. § 2071

 et seq., and the prescribed
process for amending the Federal Rules of Civil Proce-
dure. See Swierkiewicz, 

534 U.S. at 515

, citing Leatherman,

507 U.S. at 168

; Hill v. McDonough, 

547 U.S. 573, 582

 (2006)
28                                                No. 09-3561

(“Specific pleading requirements are mandated by the
Federal Rules of Civil Procedure, and not, as a general
rule, through case-by-case determinations of the federal
courts.”).
  Fourth, Iqbal’s reliance on the fact/conclusion dichot-
omy is highly subjective, and returns courts to the long
disapproved methods of analysis under the regime of
code pleading. See Miller, 60 Duke L. J. at 23-24. Is an
allegation that “defendant was negligent” or that “defen-
dant acted with racially discriminatory intent” an allega-
tion of fact or a conclusion? Calling these assertions
elements of the claim is not logically sufficient to deter-
mine when and if they should be denied a presumption of
truth. Even in Iqbal, the Court presumed true some as-
sertions that could be characterized as conclusory, while
disapproving of others. See 

129 S. Ct. at 1961

 (Souter, J.,
dissenting). Iqbal’s reliance on the fact/conclusion dichot-
omy makes the difference indeterminate. Application
of the dichotomy is leading to judge-specific and case-
specific differences in outcome that confuse everyone
involved. The long legal history of code pleading, though
perhaps distant enough in time to have been largely
forgotten by most of todays’ lawyers and judges, pro-
vides ample additional evidence on this point.
  Fifth, Iqbal’s reliance on “judicial experience and
common sense” invites the highly subjective and incon-
sistent results that have been observed. The Iqbal con-
cept of plausibility is “context-specific.” 

129 S. Ct. at 1950

.
As a practical matter, the concept invites district judges
to exercise their individual views of the likely merits of
No. 09-3561                                               29

the case at the outset, when the only information
available is the complaint. Worse still, an uncritical
reading of the Court’s “obvious alternative explanation”
reasoning seems to invite judges to weigh competing
explanations for alleged conduct and dismiss cases merely
because they believe one explanation over another. See 

129 S. Ct. at 1951

 (referring to “more likely explanations”). In
application, this standard bears a striking resemblance to
the most stringent pleading requirement in American
civil law, for pleading scienter in securities fraud claims,
pursuant to the specific direction of Congress in the
Private Securities Litigation Reform Act. See 15 U.S.C.
§ 78u-4(b)(2) (requiring plaintiff to “state with par-
ticularity facts giving rise to a strong inference that the
defendant acted with the required state of mind”); accord,
Tellabs, Inc. v. Makor Issues and Rights, Ltd., 

551 U.S. 308, 323-24

 (2007) (explaining that a “strong inference” must be
“cogent and compelling, thus strong in light of other
explanations” for the defendant’s actions).
  Congress has not imposed such a demanding standard
for pleading in any other context — including civil rights
and employment discrimination cases, which often turn
on whether a defendant’s explanation for a decision is
legitimate or merely a pretext covering for unlawful
bias. Rule 9(b) and the Supreme Court decisions in
Swierkiewicz and Leatherman permit plaintiffs to plead
intent generally, meaning without the sort of specifics
required under the PSLRA. But if the Iqbal pleading
standard is applied in the district court, plaintiffs who
already face the uphill battle of proving secret intent
30                                              No. 09-3561

must now contend with the possibility of pre-discovery
dismissal whenever the alleged pretext asserted by de-
fendants in their motion to dismiss sounds plausible to
the common sense of the particular judge. The potential
harm of Iqbal in this context is that outcomes will vary
based on how different judges view the plausibility
of, for example, a police policymaker harboring and
acting on improper motives toward women who com-
plain of domestic violence.
   As we struggle with these problems, it is important to
recall that the Iqbal Court disclaimed such a probabilistic
balancing, absent access to evidence, to determine which
theory of the case seems more likely true. See 

129 S. Ct. at 1949

 (“The plausibility standard is not akin to a ‘prob-
ability requirement’ . . . .”). Although the Iqbal opinion
used phrases such as “more likely,” and “as between,”
it should not be read to say that a plaintiff should lose
on the pleadings because a defendant had a more
plausible alternative explanation. Rather, in light of the
alternative explanation, plaintiff needed to “allege more
by way of factual content to ‘nudg[e]’ his claim of pur-
poseful discrimination ‘across the line from conceivable
to plausible.’ ” 

129 S. Ct. at 1952

 (quoting Twombly, 

550 U.S. at 570

). A plausible claim can seem less plausible
or probable than the obvious alternative and still survive
dismissal. Whether this distinction involves a real dif-
ference will depend on the care judges take not to ratify
potential false pretexts as “obvious” when making
their common-sense plausibility determinations on bare
pleadings.
No. 09-3561                                                   31

  For example, in this case, the majority relies on Brooks,
in which we followed the reasoning in Twombly and said
that the recited behavior was “just as consistent with
lawful conduct as it is with wrongdoing.” Brooks v. Ross,

578 F.3d 574, 581

 (7th Cir. 2009). But this does not mean
that we upheld the dismissal because a tie goes to the
defendant. On its face, Iqbal leaves undisturbed the
factual presumption in favor of plaintiff on a motion to
dismiss. 

Id.

 Rather, the claims were dismissed because,
absent more factual content, “Brooks’s allegations are
too vague to provide notice to defendants of the con-
tours of his . . . claim.” 

Id. at 581-82

. The primary pur-
pose of notice pleading under Rule 8 is notice.
Implausible pleadings do harm primarily by failing to
ground themselves sufficiently in reality such that defen-
dants can know what is claimed. 1 Similarly, in Swanson
v. Citibank, N.A., 

614 F.3d 400

 (7th Cir. 2010), we


1
   Some commentators have noted a concern, underlying
Twombly and Iqbal, with limiting defendants’ supposed
burden of complying with discovery. See Miller, 60 Duke L. J. at
53-59; Bone, 85 Notre Dame L. R. at 859. Others answer with
competing concerns about providing plaintiffs with access to
courts in order to discover the actual but often hidden explana-
tion for defendants’ harmful conduct. Given proper notice of the
sort of claim being asserted, the Federal Rules of Civil Pro-
cedure give courts and parties powerful tools to confine the
scope of discovery to relevant issues. See Fed. R. Civ. P. 26(b).
I respectfully suggest that effective use of those tools is
much more likely to control costs of litigation than the subjec-
tive and uncertain pleading standard of Iqbal, which has
been multiplying litigation of pleading disputes.
32                                              No. 09-3561

reversed dismissal of a complaint that only alleged
racial discrimination generally, mentioning just the per-
petrator and time-frame. These allegations were enough
to “give the opposing party notice of what the case is
all about.” 

Id. at 405

.
  The difference in result between Brooks and Swanson
did not depend, in my view, on the existence of an
obvious alternative explanation, which was present in
both cases. See 

id. at 411

 (Posner, J., dissenting in part).
Nor is the Monell claim raised by McCauley here sub-
stantially more complicated than the discrimination
alleged in Swanson. Rather, whether each of these com-
plaints survives a Rule 12(b)(6) motion depends on a
highly subjective plausibility determination. That deter-
mination must be made with great care, guided by an
awareness of the core notice purpose behind Rule 8, as
well as knowledge of the consequence of dismissing
seemingly improbable, yet potentially meritorious, dis-
crimination claims at such an early stage.
  A simple thought experiment underscores the dan-
gerous potential over-breadth of the Iqbal mode
of parsing complaints — of first applying too aggres-
sively the fact/conclusion dichotomy to a complaint,
and then applying the “obvious alternative explana-
tion” analysis to the facts that remain.
  Imagine that as a federal district judge, you have read
Twombly and Iqbal and now must act on a motion to
dismiss an equal protection complaint in which the
key paragraph reads:
No. 09-3561                                               33

    The educational opportunities provided by de-
    fendants for infant plaintiffs in the separate all-Negro
    schools are inferior to those provided for white
    school children similarly situated in violation of the
    equal protection clause of the Fourteenth Amendment
    to the Constitution of the United States. The respects
    in which these opportunities are inferior include
    the physical facilities, curricula, teaching, resources,
    student personnel services, access and all other ed-
    ucational factors, tangible and intangible, offered to
    school children in Topeka. Apart from all other
    factors, the racial segregation herein practiced in
    and of itself constitutes an inferiority in educational
    opportunity offered to Negroes, when compared
    to educational opportunity offered to whites.
Under the Iqbal approach, the first sentence merely
recites a legal conclusion regarding the elements of an
equal protection cause of action and thus should be
excluded from the Iqbal analysis. The third sentence is
similarly a bare conclusion that should also be ignored.
Only the middle sentence contains what might amount
to facts under Iqbal. A closer analysis, however, reveals
an arguably fatal lack of explanation regarding how the
listed items are inferior. The thrust of the sentence is a
bare conclusion that all factors, tangible and intangible,
contribute to the claimed deprivation. Does this complaint
provide the specific factual content required by Iqbal?
  Even if the alleged “respects in which these oppor-
tunities are inferior” might properly be called allega-
tions of fact, it would be difficult for a claim of invidious
34                                                No. 09-3561

discrimination to seem plausible in light of the obvious
alternative explanations for these deficiencies. School
boards possess limited resources. Perhaps they simply
allocated those resources according to neutral factors.
Disparity in outcome is just as consistent with the
natural effects of lower socio-economic status as it
is with pernicious effects of racial segregation. Or so
the post-Iqbal argument might go.
  The paragraph quoted above is, of course, taken
directly from plaintiffs’ amended complaint in Brown v.
Board of Education, filed on May 29, 1951. Amendment
to Paragraph Eight of the Amended Complaint, Brown
v. Board of Education, 

98 F. Supp. 797

 (D. Kan. 1951),
available at http://www.clearinghouse.net/detail.php?id=
5479 (last visited Oct. 17, 2011). We also know that
the conclusory allegation of the third sentence
eventually appeared as the holding of the unanimous
Supreme Court in Brown v. Board of Education,

347 U.S. 483, 495

 (1954) (“Separate educational facilities
are inherently unequal.”). Under the standards of
Iqbal, however, it would be easy to argue that the
plaintiffs in Brown failed to state a plausible claim
for relief that could survive dismissal. The Court’s shift
to “plausibility” pleading, and the assignment of inter-
pretation of that standard to the subjective common-sense
of individual judges, has markedly increased the danger
of throwing out the proverbial baby with the bathwater.2



2
  See also Miller, 60 Duke L. J. at 127-30 (applying a similar
hypothetical analysis to the complaint in the seminal notice
                                                 (continued...)
No. 09-3561                                               35

  In the face of all these problems, what are the lower
federal courts to do? These are all sources of controlling
law that we are obliged to follow. Although careful analy-
sis may help the lower federal courts determine, for
example, that the Iqbal pleading standard would not
require a different result in particular cases, there will
be cases, and Mr. McCauley’s equal protection claim
appears to be one of them, where the standard makes
a decisive difference.
  The first thing we can do is recognize the uncertainty
that litigants, their lawyers, and district courts now
face. As a result of that uncertainty, the courts of
appeals should insist that in all but the most unusual
situations, a party whose pleading is dismissed based
on the Iqbal plausibility standard should be entitled to an
opportunity to amend the pleading after the court has
made its decision. Allowing amendment after pleadings
dismissals had long been our practice even before
Twombly and Iqbal. See, e.g., Barry Aviation Inc. v. Land O’
Lakes Municipal Airport Comm’n, 

377 F. 3d 682, 687

 (7th
Cir. 2004) (quoting 5A Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).
Whether one favors broader or narrower readings of
Twombly and Iqbal, no one denies that the cases are being
interpreted as having caused an upheaval in long-settled
law. Attorneys and parties trying to draft complaints



2
  (...continued)
pleading case of Dioguardi v. Durning, 

139 F.2d 774

 (2d Cir.
1944)).
36                                              No. 09-3561

and other pleadings will be left wondering about many
important questions and contradictions that the Court
has not yet addressed. Rule 1 instructs us to construe
the Federal Rules of Civil Procedure to secure the just,
speedy, and inexpensive determination of cases. The
Supreme Court has often reminded us that pleading
rules should be applied to facilitate a proper decision
on the merits rather than to impose a series of traps in
which one mis-step can be decisive. E.g., Swierkiewicz,

534 U.S. at 514

 (“The liberal notice pleading of Rule 8(a)
is the starting point of a simplified pleading system,
which was adopted to focus litigation on the merits of
a claim.”), quoted in Christensen v. County of Boone, 

483 F.3d 454, 458-59

 (7th Cir. 2007), and in Brooks, 

578 F.3d at 580

. We should exercise caution to avoid punishing
parties for imperfect predictions as to how the subjec-
tive and inconsistent Iqbal standard might be applied
in their case.
  Some statistics show that generosity with regard to
leave to amend appears to have increased under the
new pleading regime, even as the total percentage of
dismissal motions granted has risen. See Hatamyar, 59
Am. U. L. Rev. at 600 (analyzing statistics and finding
a “noticeable increase in dismissals with leave to amend
under Twombly and Iqbal”). District judges should
continue to grant such leave when they are concerned
with the effects on plaintiffs that I have discussed above.
They should also grant leave when doing so could
prevent results in otherwise similar cases from
diverging based merely on differences in plausibility
No. 09-3561                                                 37

determinations made by different judges according to
their individual judicial experience and common sense.
  Courts must freely give leave to amend under
Rule 15(a) where interests of justice so require. Fed. R.
Civ. P. 15(a); Foman v. Davis, 

371 U.S. 178, 181-82

 (1962).
Under this liberal rule, we allow amendment on remand
in many procedural dismissal cases, and certainly do so
when relevant decisional law changed after the com-
plaint was filed. See, e.g., Ienco v. City of Chicago, 

286 F.3d 994, 999

 (7th Cir. 2002). When, as here, the changed deci-
sional law involves the standard for pleading itself,
interests of justice call for an opportunity to amend essen-
tially as a matter of course unless it is clear that the op-
portunity would be futile. In Iqbal itself, the Supreme
Court remanded to the Second Circuit for a determina-
tion whether to further remand — so that plaintiffs could
seek leave to amend. 

129 S. Ct. at 1954

; see also Iqbal v.
Ashcroft, 

574 F.3d 820, 822

 (2d Cir. 2009) (remanding to
district court for determination regarding leave to
amend). We have continued to permit such amendment
after Twombly and Iqbal. See, e.g., Bausch v. Stryker Corp.,

630 F.3d 546, 562

 (7th Cir. 2010). We should do so here.
  But where that approach is not enough to resolve
the case, I believe we must take care not to expand
Iqbal too aggressively beyond its highly unusual con-
text — allegations aimed at the nation’s highest-ranking
law enforcement officials based on their response to
unprecedented terrorist attacks on the United States
homeland — to cut off potentially viable claims. Iqbal
exemplifies the old adage about hard cases. The failure
38                                              No. 09-3561

of the Supreme Court to address all of the law that would
conflict with broad application of the case should weigh
heavily against that broad application, at least until the
Supreme Court provides clearer guidance about how to
reconcile Iqbal with its prior cases, the Federal Rules of
Civil Procedure, and their accompanying forms.
  Reading the present complaint as a whole, plaintiff
McCauley has alleged the particulars of a plausible
Monell claim. As the majority points out, McCauley has
alleged the elements of such a claim using the relevant
legal language. While some of these statements are
conclusory in nature, they serve to notify defendants
and the court of the type of claim being brought. There
can be no doubt that the complaint provides suf-
ficient notice of the circumstances that gave rise to the
claims. McCauley made factual allegations that Chicago
police failed to arrest Martinez despite knowledge of
his harassment and violations, ¶ 25, and that this
failure resulted from a custom of untimeliness and indif-
ference with regard to the seriousness of domestic
violence, ¶ 125(c) and (j). McCauley alleges “deliberate
indifference” generally, see ¶ 126, but elsewhere de-
scribes numerous specific failures to act that are factu-
ally consistent with such an intent. See, e.g., ¶ 51. It
is difficult to imagine what more McCauley might
allege on the crucial question of intent without reciting
a list of specific states of mind that Chicago police policy-
makers might have. We did not require such a recital
in Swanson and we should not do so here.
  By extending Iqbal to dismiss plaintiff McCauley’s
equal protection Monell claim against the City of Chicago,
No. 09-3561                                              39

the majority runs afoul of Leatherman, Rule 9(b), and the
form complaints approved by the Supreme Court and
Congress as part of the Federal Rules of Civil Procedure.
Perhaps the Supreme Court majority intended Iqbal to
work such a revolution in federal civil practice, but if so,
the Court failed to grapple with the conflicts and did not
express any direct rejection of these other governing
sources of law. Under these circumstances, therefore,
I would reverse the dismissal of plaintiff’s equal protec-
tion claim against the City of Chicago and give him
an opportunity to pursue discovery. Even if I agreed
that the current version of the complaint failed to state
a claim, I would remand with instructions to give
plaintiff an opportunity to file an amended complaint
to try to comply with the new and uncertain standards
of Iqbal.




                          10-20-11