Landrith v Kansas AG Certiorari Petition

QUESTION PRESENTED

Do Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555-57 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678-80 (2009) interpret 28 U.S.C. App. Fed. R. Civ. P. Rule 8: General Rules of Pleading’s factual burden of alleging civil rights retaliation, discrimination and conspiracy claims as requiring more than individualized allegations of each 42 U.S.C. § 1983 claim with supporting averments of factual conduct, circumstances, and knowledge of the conspiracy against each specific defendant?

PETITION FOR CERTIORARI

This case involving the sufficiency of 42 USC §1983 civil rights and 42 USC §1983, 42 USC §1985 (2) and (3) civil rights conspiracy claims against state officials alleged to be acting in concert in furtherance of an ongoing civil rights conspiracy to retaliate against the petitioner and other attorneys for their 42 USC §1981 protected advocacy offers this Court an ideal vehicle to resolve an intractable conflict between the circuits over the plausibility standard from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The present case is not only ideal for resolving the conflict between the circuits because of the complaint’s focus on an expressly alleged agreement to commit civil rights conspiracy pled to meet heightened plausibility requirement Twombly imposed on an inferred antitrust conspiracy which was dismissed under Rule 12(b)(6), but because the Tenth Circuit in reaction to Twombly and Iqbal has created a new heightened standard called the “Refined Standard” that adds to the pleading requirements or Rule 8 and conforms to the minority position in recent Second Circuit and the DC Circuit cases that also expressly impose a heightened pleading standard exceeding the Rule 8 pleading requirements based on Twombly and Iqbal.

Certiorari would clear the confusion of courts across the country that routinely refer to Twombly and Iqbal as having created a "heightened" pleading standard. See, e.g., Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC, at n.2 (N.D. Ind. Jan. 30, 2012) (referring to “the heightened ‘plausibility’ standard articulated in Iqbal and Twombly”)

OPINIONS BELOW

The United States Court of Appeals for the Tenth Circuit Opinion Landrith v. Schmidt, No. 12-3302, No. 12-3332 (10th Cir. Sep. 10, 2013) affirming the district court’s judgment is not reported. The United States District Court decision Landrith v. Kan. Attorney Gen. Case No. 12-2161 (D. Kan., November 2, 2012), and the addendum to decision Landrith v. Kan. Attorney Gen. Case No. 12-2161 (D. Kan., November 30, 2012) are unreported.

JURISDICTION

The Tenth Circuit affirming judgment was issued on Sep. 10. 2013. The Tenth Circuit decision declining en banc rehearing opinion was filed on Nov. 1, 2013. This Court’s jurisdiction is timely invoked under 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

28 USC App Fed R Civ P Rule 8: General Rules of Pleading reads, in the relevant parts:

“28 USC App Fed R Civ P Rule 8: General Rules of Pleading

a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

***

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense…

***

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice.” [Emphasis added].

STATEMENT OF THE CASE

The petitioner brought a 42 USC §1983 civil rights case against state officials a corporate child support collection contractor and two private attorneys for damages and sought to prospectively enjoin an otherwise immune state attorney and the same corporate child support collection contractor for 42 USC §1983 injunctive relief. In an amended complaint, the petitioner added related claims against federal officials of a neighboring district court solely for prospective injunctive relief under the constitution. Cleary, the complaint and amended complaint brought claims against state officials acting under color of state law in conduct that controlling Supreme Court and Tenth Circuit case law clearly established violated the petitioner’s rights under the First Amendment and 42 USC §1981 through retaliation for protected advocacy in the vindication of race based statutory civil rights of an African American and his American Indian witness. However, the Kansas District court dismissed the action as conclusory under the Twombly and Iqbal pleading standard. The district court went on to sanction the petitioner and was upheld by the Tenth Circuit which also ordered a filing injunction against the petitioner.

A. Introduction

The amended complaint alleged direct evidence of all necessary elements at the pleading stage and therefore was not subject to the negative application of Twombly. Doe v. Bd. of Regents, 280 Neb. 492, 505, 788 N.W.2d 264, 278 (2010). The civil rights conspiracy allegation were supported by direct evidence of the defendants' "conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764 (1984). The amended complaint included context supporting the direct allegation of a meeting of the minds and entitlement to relief under Twombly, Id. at 557, 127 S.Ct. 1955; more than the mere possibility of misconduct” Iqbal, 129 S. Ct. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

The complaint and amended complaint’s “who, what, where, and when” factual allegations specific to each defendant’s entry into the civil rights conspiracy accompanied by factual allegations of each individual defendant’s unlawful and lawful conduct in specifically identified actions in furtherance of the civil rights conspiracy contained the “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, 127 S.Ct. 1955). No allegation in the complaint was an ipse dixit, unadorned by any factual assertions that might lend it plausibility” A.G. v. Elsevier, Inc. at pg. 7 (1st Cir., 2013).

1. The Kansas District Court

The petitioner brought an action against State of Kansas officials and their agents for violations of the petitioner’s civil rights actionable under 42 USC §1983 that occurred after the petitioner brought an action in Shawnee County, Kansas District Court (Landrith v. Jordan, SDC Case No. 10C 001436 (04/06/2011)) to address separate and earlier violations of the petitioner’s civil rights. The conduct against the petitioner in the amended complaint took place while the petitioner was attempting to get warehousing, truck driving and laborer jobs without success due to negative information placed on national databases by State of Kansas officials in the years 2006 through 2010.

The amended complaint also charged the state officials and their agents with retaliating against the petitioner’s intimate associates and of preventing individuals from having the resources to compensate the petitioner for labor he had performed out of retaliation for the petitioner’s protected speech and for their association with the petitioner. The amended complaint alleged that the state officials’ unlawful conduct had the foreseeable effect of preventing the petitioner from supporting his family.

The petitioner was disbarred in 2005 by the Kansas Supreme Court (In re Landrith, 280 Kan. 619, 124 P.3d 467 (2005)) for bringing the racial discrimination civil rights claims of an African American to federal court in Bolden v. City of Topeka, Civil Action No. 02-2635-KHV (D. Kan. 2/2/2004) (D. Kan., 2004) because the 42 U.S.C. 1981 and 42 U.S.C. 1982 claims had been dismissed by the Kansas District court. Additionally, the petitioner was disbarred because the petitioner had utilized the voluntary uncontested appearance of the city defendant in the case rather than serving process on the individual city officials who were charged only in their official capacity. A position the Kansas District Court later adopted in Bruner-McMahon v. Cnty. of Sedgwick at pg. 1- 2(D. Kan., 2011). The Kansas Supreme Court disbarred the petitioner for his federal court advocacy on behalf of the African American James L. Bolden before the Tenth Circuit reversed the decision Bolden v. City of Topeka. 441 F.3d 1129 (10th Cir. 2006) where Bolden’s oral argument was canceled due to the actions by the State of Kansas against petitioner the petitioner and the court relied only upon the petitioner’s briefs.

The Kansas Supreme Court also expressly disbarred the petitioner for appealing the denial of Indian Child Welfare Act (“ICWA”) 25 U.S.C. §§1901–1963 protections in a pro bono appeal of a parental rights termination of one of Bolden’s witnesses who had a baby boy found by the court to be American Indian due to his father’s ancestry. The petitioner was disbarred for arguing that the federal statute prohibited the taking and placement of the child in another state without notice to the natural father. The Kansas Supreme Court later adopted the petitioner’s argument that the Indian Child Welfare Act applied to American Indians living off the reservation in its decision on In The Matter Of A.J.S., Kansas Supreme Court Case No. 99,130 (2009). The Kansas Supreme Court has also adopted the petitioner’s argument that misrepresentations by a natural mother to conceal the existence of a child from a father could not disqualify a father’s reasonable efforts to parent his child. In The Matter Of The Adoption Of Baby Girl P. Case No. No. 102, 287 at 13-16 (Kan., Oct. 2010).

The amended complaint consisted of eighty-seven pages, including a four page table of contents and a twenty-five page statement of facts. The statement of facts was broken down into twenty-two bold headings arranging allegations against eighteen named defendants. The allegations against the defendants were grouped into sub headings of material facts and averments of circumstances relative to their individual conduct under a section for each element of fact required to support charges of 42 USC §1983 for violations of the petitioner’s First Amendment and 42 USC §1981 protected advocacy and to be free from retaliation and from being prevented from enforcing contracts for that advocacy; 42 USC §1983 Abuse of Process against two defendants; charges of 42 USC §1983 conspiracy against the ongoing civil rights conspiracy that included identified state officials and their specific unlawful acts in furtherance of the civil rights conspiracy; 42 USC §1985 (2) conspiracy against specifically identified state officials and their agents for the petitioner’s subpoenaed testimony in an unrelated Kansas District Court criminal case USA v. Carrie Neighbors and Guy Neighbors, KS Dist. Ct. Case No. 07-20124, 08-20105, 07-20073; and 42 USC §1985 (3) conspiracy for retaliating against the petitioner out of racial animus for having represent Bolden against the City of Topeka and for representing Bolden’s witness of American Indian descent, David M. Price.

The Statement of Facts detailed an ongoing civil rights conspiracy involving identified State of Kansas government officials in the Kansas SRS, private contractors and their named agents that employed mail and wire fraud predicate acts under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961, et seq. as part of an overarching scheme to control distribution of hundreds of millions of dollars of federal funds related to children in need of care cases and to profit from outcomes in court cases related to parental rights in violation of the False Claims Act, 31 U.S.C. § 3729, et seq., and bad faith state child protective services actions violating 42 U.S.C. § 671. The amended complaint referenced State of Kansas legislative testimony that parents were systematically being deprived of legal representation in defense of their constitutional right to parent their children and Kansas SRS social workers’ testimony that they were forced by Sedgwick County, Kansas and Shawnee County, Kansas District Attorneys to alter their testimony in state court child in need of care cases to facilitate the State of Kansas in taking children out of their family homes and in keeping them in the control of private contractor corporations through fraud for more than a year to maximize the False Claims Act, 31 U.S.C. § 3729, et seq., profits from bad faith state child protective services actions to procure the42 U.S.C. § 671 funds.

The complaint and later the amended complaint alleged that the petitioner was being kept from employment even in non law jobs in other states through the State Officials’ use of government data bases to report false negative information against him for his advocacy as an attorney, but the State Officials renewed their retaliations against the petitioner and his intimate associates when the petitioner’s former parental rights termination client, brought an action in Kansas District Court seeking prospective injunctive relief to have the petitioner reinstated to bring a class action on behalf of many victims of SRS violations of parental constitutional rights to obtain more children for the foster care contractors through fraud, after the client’s sixteen year old daughter, a straight-A honor student was also taken and kept out of school for over a year through the contractor and state attorneys’ fraud on the Shawnee County, District court, and the former client was deprived of counsel after his court appointed counsel fled the state.

The amended complaint also detailed similarly situated victims of the over-arching conspiracy that were retaliated against and their constitutional rights violated in the manner done to the petitioner for their advocacy against the Kansas SRS now the Department of Children and Families.

The allegations regarding the ongoing civil rights conspiracy were express and the allegations for the meeting of minds and when each individual defendant joined the conspiracy and the defendant’s personal acts in furtherance of the conspiracy were alleged with supplemental supporting facts and circumstances.

An example of what the Kansas District Court specifically found was a “conclusory” allegation concerning the meeting of the minds element of conspiracy is the allegation and supporting averments against the SRS state child support contractor law firm Young Williams PC, one of six 42 USC §1983 conspiracy defendants the first amended complaint makes individualized allegations of joining the ongoing civil rights conspiracy. Despite the district court judgment specifically finding that the petitioner had failed to allege “a meeting of the minds”, the amended petition expressly alleges “a meeting of the minds” for each of the conspiracy defendants and typically like in the averments of conspiracy made against Young Williams PC uses the exact words “a meeting of the minds” after introducing the circumstances where Young Williams PC had knowledge of the ongoing civil rights conspiracy against the petitioner, when and where Young Williams PC obtained the knowledge and through who (its attorney employee Amy Raymond) and when Young Williams PC entered into the ongoing conspiracy supported by specific unlawful conduct Young Williams PC then subsequently took against the petitioner ’s former client and intimate associate David M. Price, then goes on to describe affirmative acts of fraud against the petitioner to deprive the petitioner of his right to Due Process in Shawnee County District Court by acting in concert with other specifically identified defendants and the specific misrepresentations of fact and controlling case law Young Williams PC and the co-conspirators made in furtherance of the ongoing civil rights conspiracy:

““2. YOUNG WILLIAMS PC

245. YOUNG WILLIAMS PC through their attorney Amy S. Raymond Kansas Sup. Ct. #20839 had knowledge of the civil rights conspiracy and the Kansas SRS and the role of DON JORDAN FORMER SECRETARY OF SRS and JOHN BADGER FORMER CHIEF COUNSEL in it. YOUNG WILLIAMS PC through their attorney Amy S. Raymond Kansas Sup. Ct. #20839 were representing DON JORDAN FORMER SECRETARY OF SRS in prosecuting David Martin Price for child support while his appeal for Fourteenth Amendment violations in the taking of his daughter and the constructive denial of his parental rights was still before the Kansas appellate courts.

246. YOUNG WILLIAMS PC through their attorney Amy S. Raymond Kansas Sup. Ct. #20839 had first hand knowledge of the loss of his appointed attorney and direct notice from David Martin Price’s Formal Notice served on her.

A. Post Petition Actionable Conduct in Furtherance of the

Civil Rights Conspiracy Taking Place After The Original Petition filed on 10/12/10

247. While YOUNG WILLIAMS PC through their attorney Amy S. Raymond Kansas Sup. Ct. #20839 was in the Shawnee County District Court obtaining an untimely dismissal before the close of pleadings utilizing misrepresentations of law to this court in violations of KRPC 3.3(a)(1), Amy S. Raymond Kansas Sup. Ct. #20839 made the materially misleading argument that the court in Pittsburg had determined it had jurisdiction and therefore YOUNG WILLIAMS PC had not unlawfully abused process in prosecuting the nonpayment of child support in the name of representing DON JORDAN FORMER SECRETARY OF SRS.

B. Post Petition Actionable Conduct in Furtherance of the

Civil Rights Conspiracy Taking Place After The First Amended Petition filed on 04/18/2011

248. The substance of this fraud on the court is that YOUNG WILLIAMS PC was in the Crawford District Court obtaining extensions of time in which to answer the plaintiff’s timely challenge to in personam jurisdiction of the Pittsburg, Kansas divorce court, that YOUNG WILLIAMS PC did not answer and did not have a realistic intention of answering, allowing Amy S. Raymond Kansas Sup. Ct. #20839 to obtain dismissal before the jurisdiction issue was resolved.

249. The most damaging misrepresentations of fact by YOUNG WILLIAMS PC through their attorney Amy S. Raymond Kansas Sup. Ct. #20839, however concerned YOUNG WILLIAMS PC’s one possible defense at law.

250. The defense is that of the agent who can argue it did not have the knowledge of the master. An argument Amy S. Raymond Kansas Sup. Ct. #20839 made on behalf of YOUNG WILLIAMS PC.

251. The plaintiff was unaware that YOUNG WILLIAMS PC was a defendant in that action and was represented by their attorney Amy S. Raymond Kansas Sup. Ct. #20839:

“39. The plaintiff’s process server in an earlier injunctive relief action against Attorney Discipline Office Prosecutor STANTON A. HAZLETT, Janice Lynn King has been injured by duplicative proceedings in this Shawnee County District court instigated by Assistant Kansas Attorney General Steve Phillips in the preceding year and has also filed a detailed complaint against Kansas attorneys that have deprived her of parenting time with her children over five years, federal tax returns, and of support awarded in this court in retaliation for her association with the plaintiff.”[Emphasis added]

Plaintiff’s First Amended Complaint at pg. 7, ¶ 39.

252. Janice Lynn King’s federal court complaint details how the plaintiff Bret D. Landrith’s US Constitutional rights to Due Process were irreparably damaged by retaliation against Janice Lynn King over King’s federally protected advocacy conduct of serving process for the plaintiff in his Kansas District Court action Landrith v. Stanton A. Hazlett, et al Kansas Dist. Case No. 04-2215-DVB seeking prospective injunctive relief against what evidence showed was a bad faith disbarment prosecution of the plaintiff by STANTON A. HAZLETT the brother of a past president the American Adoption Attorney Association on a complaint made in part by Hon. Judge G. Joseph Pierron, Jr.

253. Hon. Judge G. Joseph Pierron, Jr..was serving as a director on the board of one of the state’s largest adoption contractor corporations, the Kansas Children’s Service League (while the contractor in 2002 was being criticized for its performance of federal funding requirements related to adoption [see Foster Kids in Limbo LJ World and ultimately during the plaintiff’s disciplinary panel hearing in January of 2005, KCSL had lost a $33.6 million adoption contract with the state: “Foster care agency loses contract” Lawrence journal World, January 28, 2005) , strongly admonished the plaintiff for raising researched legal concerns about the legitimacy of the Baby C adoption.

254. Hon. Judge G. Joseph Pierron, Jr..was serving as a director on the board of one of the state’s largest adoption contractor corporations, the Kansas Children’s Service League presided over the hostile adoption (adoption contract forced on single Wichita pharmacist while in hospital during delivery and under anesthesia) appeal chronicled in the Wichita ABC affiliate KAKE’s documentary When the Cradle Falls and did not disclose his fiduciary interest in Kansas Children’s Service League or its adoption contracting.

255. The appellate opinion in the Baby C case inaccurately stated that the plaintiff sought only SRS records the father was not entitled to despite numerous appellate motions for many kinds of court records the plaintiff and his client David Martin Price had been denied access to.

256. Janice Lynn King’s complaint details how her rights were repeatedly violated and she was not able to obtain Shawnee County District Court ordered child support in retaliation for her service of process on behalf of the plaintiff in federal court, then she was prosecuted for nonpayment of child support. See Janice Lynn King Civil Rights Complaint.

257. YOUNG WILLIAMS PC through their attorney Amy S. Raymond’s (Kansas Sup. Ct. #20839 ) misrepresentations of fact to this court are also violations of KRPC 3.3(a)(1) under In re Benson, 275 Kan. 913, 69 P.3d 544 (Kan., 2003).

258. After having knowledge of the civil rights conspiracy against the plaintiff and having come to a “meeting of the minds” in adopting and furthering the goals of that conspiracy through the actionable conduct of Fraud on the Court, the defendant YOUNG WILLIAMS PC participated in further acts of retaliation against the plaintiff for his protected speech of advocacy on behalf of the African American racial discrimination victim James L. Bolden and David M. Price’s American Indian son YOUNG WILLIAMS PC through their attorney Amy S. Raymond’s (Kansas Sup. Ct. #20839 ) committed lawful and unlawful acts in furtherance of the conspiracy’s goal to retaliate against the plaintiff by injuring the plaintiff’s former client David M. Price, an intimate friend, for David M. Price’s association with the plaintiff.

259. The defendant YOUNG WILLIAMS PC through their attorney Amy S. Raymond’s (Kansas Sup. Ct. #20839 ) pursued the plaintiff’s former client David M. Price for child support on his daughter Heavenly Price even though the defendant YOUNG WILLIAMS PC through their attorney Amy S. Raymond’s (Kansas Sup. Ct. #20839 ) had knowledge Heavenly was taken from the Price home through fraud and held by an SRS contractor to maximize its receipt of federal funds while violating court orders requiring Heavenly’s school attendance and grades to be reported and through repeated acts of extrinsic fraud to conceal from the court the unlawfulness of Heavenly’s continued taking.

260. The defendant YOUNG WILLIAMS PC through their attorney Amy S. Raymond’s (Kansas Sup. Ct. #20839 ) attempted to deprive the plaintiff’s former client David M. Price of legal representation even though he faced jailing for contempt of court and when that failed the defendant YOUNG WILLIAMS PC through their attorney Amy S. Raymond’s (Kansas Sup. Ct. #20839 ) on information and belief conspired to limit the representation of David M. Price’s court appointed legal counsel so that the attorney could not bring timely civil rights claims against the civil rights including conspirators former Secretary of SRS ROB SIEDLEKI, DON JORDAN FORMER SECRETARY OF SRS, BRIAN FROST, and CRAIG E. COLLINS. “ [Emphasis added]

Landrith v. Kansas Attorney Gen. First Amended Complaint pg.s 51-54, ¶¶ 245-260.

Elsewhere, the amended complaint states each element for Young Williams PC’s 42 USC §1983 Abuse of Process violation against the petitioner in concert with Don Jordan Former Secretary of SRS, similarly supported with averments of facts and circumstances arranged under each element of 42 USC §1983 Abuse of Process according to the controlling case law for the jurisdiction Smith v. St. Paul Fire and Marine Ins. Co., 905 F.Supp. 909 at 922 (D. Kan., 1995) stated as a bold subheading. The allegations in the amended complaint further show how Young Williams PC and Don Jordan Former Secretary of SRS’s 42 USC §1983 Abuse of Process violation was temporally related and a direct retaliation for the petitioner’s testimony with David M. Price in USA v. Carrie Neighbors and Guy Neighbors, KS Dist. Ct. Case No. 07-20124, 08-20105, 07-20073 in support of the African American Guy Neighbors’ competency and right to conduct his own criminal defense when the conspirators had caused the petitioner to be subpoenaed in the belief that the petitioner would perjure himself and be discredited in David M. Price’s prospective injunctive relief action against Kathryn H. Vratil

in her Official capacity as Chief Judge of the United States District Court for the District of Kansas to have the petitioner reinstated to represent Price in a civil rights class action against the SRS, Price v. Vratil, 09-cv-02198 (KS. Dist. 2009).

The charging section of the amended complaint consisted of fifty one pages laying out eleven counts against different groupings of individual defendants with material factual allegations and supporting averments of facts and circumstances arranged under a bold subheading for each element required to state a prima facie case for each violation of 42 USC §1983, 42 USC §1983 conspiracy, 42 USC §1985(2), and 42 USC §1985(3) under the most recent controlling case law for the Kansas District court.

The State of Kansas officials in motions under Fed. R. Civ. P. Rule 12(b)(6) argued qualified immunity and sovereign immunity in defense of the counts for prospective injunctive relief and against damages for Abuse of Process. The State of Kansas officials also vigorously argued that because the amended complaint stated each element for each claim in bold subheadings above the relevant facts and circumstances alleged to support each element, that the amended complaint was “conclusory” and violated Twombly and Iqbal because the amended complaint was not “plausible.”

Additionally, the State of Kansas officials and their agents Frost and Young Williams PC argued that since an ongoing concurrent jurisdiction state case brought by the petitioner was still continuing in Shawnee County, Kansas District court, the federal court lacked jurisdiction, even on later claims resulting from the conduct of Brian Frost and Young Williams PC to deprive the petitioner of Due Process through repeated frauds on the state court detailed in the petitioner’s complaint and amended complaint before the federal court.

The petitioner responded in answer to each motion to dismiss, applying the Tenth Circuit’s post Erickson v. Pardus 551 U.S. 89 (2007) application of of Twombly and Iqbal where the Supreme Court had reversed the Tenth Circuit’s use of the proscription against “conclusory” claims to dismiss a prisoner’s claim for access to healthcare. The petitioner argued that the Tenth Circuit had adopted what the circuit calls a new “Refined Standard” in Khalik v. United Air Lines, 671 F.3d 1188 at 1191 (10th Cir., 2012): “Rule 8(a)(2) still lives. There is no indication the Supreme Court intended a return to the more stringent pre-Rule 8 pleading requirements” Khalik at pg. 1191 id.

The Kansas District court judge, understandably having no interest in the conduct of his state peers and associates being subject to scrutiny in federal court, or even of having the conduct of Kansas licensed attorneys often appearing in Kansas District court being investigated in the context of private party civil rights violation and conspiracy claims, and furthermore recognizing the great expense in legal fees and discovery that allowing the case to go forward through a future summary judgment phase would entail, summarily dismissed all of the petitioner’s claims as an informal sanction for the perceived misconduct of having brought the claims.

The Kansas District court judge reluctantly adopted the argument of the State of Kansas officials’ agents Frost and Young Williams PC that the amended complaint was “conclusory” in violation of Twombly and Iqbal, but strengthened the basis for dismissal by leading with the finding that the petitioner had pled too many facts and had therefore violated Rule 8’s simple and plain statement requirement.

The Kansas District court judge reinforced the Rule 12(b)(6) dismissal sought by the defendants Frost, Young Williams PC, State of Kansas Attorney General Schmidt from damages claims and of State of Kansas Disciplinary Attorney Hazlett from 42 USC §1983 prospective injunctive relief by dismissing all claims against the State of Kansas SRS officials who did not file a motion to dismiss and instead answered the claims, and by dismissing the petitioner’s claims against the two State of Kansas officials who defaulted. The petitioner’s arguments that the Western District of Oklahoma District Court officials subjected to prospective injunctive relief claims under the constitution in the amended complaint were properly subject to the venue where the petitioner resided under 28 U.S.C. § 1391(e)(1)(c), and the petitioner’s request to reserve the district court’s admission committee after they denied they were federal officials.

After the order of dismissal, the State of Kansas officials, both the officials that had answered the complaint and the State of Kansas officials that had defaulted made Rule 11 motions for sanctions against the petitioner for bringing the “conclusory” claims violating Twombly and Iqbal. The Kansas District court judge limited the petitioner’s answers and struck the petitioner’s Rule 59 motion, then laundered the informal sanction of summary dismissal with filing sanctions after the petitioner answered the show cause order.

2. The Tenth Circuit Court of Appeals

The Tenth Circuit affirmed the district court because the court has determined Twombly and Iqbal modify Rule 8(a) by requiring an additional factor to guard against claims that the court believes are too burdensome for government defendants. The affirmation of the district court reasonably conforms to such a Tenth Circuit court position based on governmental qualified immunity because the district court decision suggested that qualified immunity or sovereign immunity deprived it of jurisdiction over some or all of the petitioner’s claims despite detailed answers to each defendant motion to dismiss identifying the controlling law in support of each of the petitioner’s claims rendering both qualified immunity and sovereign immunity inapplicable. 42 U.S.C. § 1983 Abuse of Process is closely related to 42 U.S.C. § 1983 Malicious prosecution which is almost always properly a monetary damages claim against a state attorney. See Calvert v. Ediger at pg. 7 (10th Cir., 2011).

The district court in clear error denied standing for 42 § 1983 prospective injunctive relief against the Kansas Attorney Discipline Official Hazlett, The Kansas SRS Chief Counsel Corkins, and the Kansas SRS Secretary Gilmore (all of whom are state officials), to prevent them from future injury of the petitioner’s constitutional rights and where prior injury to the appellant is unnecessary, immaterial and impermissible as a basis for standing to obtain 42 § 1983 prospective injunctive relief. See Briggman v. Virginia, Dept. of Social Servs., Dcse, 526 F.Supp.2d 590 at 603-604 (W.D. Va., 2007) (“alleging past injuries by the defendants did not state a claim for injunctive relief which instead requires allegations of likely future violations”). The district court in clear error suggested the qualified immunity of Hazlett, Corkins, and Gilmore under 42 § 1983 results from the Federal Courts Improvement Act of 1996.

It has been clearly established in the Tenth Circuit that there is no qualified immunity from injunctive relief under the Federal Courts Improvement Act of 1996. See Roe # 2 v. Ogden, 253 F.3d 1225, 1233-34 (10th Cir.2001), and Leclerc v. Webb, 419 F.3d 405 (Fed. 5th Cir., 2005) and as explained in Dubuc v. Michigan Bd. of Law Examiners, 342 F.3d 610 at 616 (6th Cir., 2003) relying on the Tenth Circuit in Roe # 2 v. Ogden, 253 F.3d 1233-4. Qualified immunity applies only when government defendants are sued in their individual capacities. Brown v. Montoya, 662 F.3d 1152 at 1164 (10th Cir. 2011).

The amended complaint sought to enjoin Hazlett, Corkins, and Gilmore from violating specific federal criminal civil rights statutes including 18 USC §§ 241 and 242, and to require them to produce evidence from the disbarment proceedings to attorney admissions committees in other jurisdictions so that the petitioner can pursue his constitutional right to earn a living. “In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court carved out an exception to Eleventh Amendment immunity for suits against state officials seeking to enjoin alleged ongoing violations of federal law.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir.2011).

Since, at law, the defendants enjoy no qualified immunity or sovereign immunity for the specific claims against them, the Tenth Circuit’s affirmation of the district court dismissal and sanctioning of the petitioner was clearly to further the erroneous public policy of freeing government officials from constitutional and federal statutory claims by utilizing Twombly and Iqbal as justification to revert to the Tenth Circuits’ pre Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) policy in which the circuit describes the policy in Robbins v. Oklahoma, 519 F.3d 1242 (10th Cir., 2008) as a heightened pleading standard based on qualified immunity that it was forced to find unlawful in Currier v. Doran, 242 F.3d 905, 916 (10th Cir. 2001).

The Tenth Circuit also ordered the petitioner to be subject to filing restrictions because the petitioner’s appellate brief had raised Eighteen separately briefed issues of appeal where the district court contradicted clearly established controlling authority in granting the dismissal and in sanctioning the petitioner. The Tenth Circuit did not make findings of fact or law regarding the issues raised in the appeal brief.

II. The Court Should Grant Review

To Establish Plausibility Does Not Grant Courts Discretion To Dismiss Claims That Sufficiently Plead Facts And Circumstances That Reveal An Actionable Civil Rights Violation.

The petitioner pled each element for each claim, the district court instead faulted the inclusion of supporting averments of fact for each element, despite the Tenth Circuit’s holding in Khalik v. United Air Lines, 671 F.3d 1188 (10th Cir., 2012).“The elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim. See Swierkiewicz v. Sorema N.A., 534 U.S. 506 at 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Twombly, 550 U.S. at 570, 127 S.Ct. 1955.”id. at 1192. The petitioner under Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231 (10th Cir., 2013) was required to plead enough supporting facts for each element of each claim against each defendant to make the claims plausible : “a plaintiff must offer specific factual allegations to support each claim.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955);see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (“[T]he pleading standard Rule 8 announces ... demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”)” id at 1235.The Tenth Circuit was in error to uphold a dismissal by the district court expressly for pleading supplemental facts for each element to meet the Tenth Circuit’s plausibility requirements.

A. Misuse of Plausibility As Cover For Discretion

The district court adopted the state government defendants’ argument against the petitioner’s circumstantial averments supplementing the petitioner’s allegations of facts in support of each element of § 1983 Conspiracy and 1985(2) and (3) Conspiracy claims. However these allegations were not legal conclusions but instead circumstantial allegations required to support the plausibility of the clandestine civil rights conspiracy as recognized in the First Circuit which fundamentally disagrees with the Tenth Circuit enhanced pleading requirements for § 1983 claims against government officials. See Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49 at 55 (1st Cir., 2013): “The district court believed that these assertions were immaterial because they did not represent “discrete factual events.” Rodríguez–Reyes, 851 F.Supp.2d at 381 (internal quotation marks omitted). We think that the district court subjected the complaint to an overly stringent pleading standard. An assertion that a defendant was affirmatively seeking information about employees' political affiliations is more than a bare legal conclusion. The plaintiffs' “witch-hunt” and “talk[ing] about politics” averments, though general, are factual assertions that must, at the pleading stage, be given credence. See, e.g., Ocasio–Hernández, 640 F.3d at 15 (holding similar allegations to be factual, not conclusory)” Rodríguez–Reyes id 711 F.3d at 55.

Much of what the State of Kansas officials, their agents and the district court complained of was the petitioner’s inclusion of facts and quoted statements to meet Rule 9 specificity for fraud on the court based § 1983 claims for conduct to deprive the petitioner of Due Process in the concurrent jurisdiction state court proceeding. The attorney defendant Frost and the law firm defendant Young Williams PC misrepresented the facts and the controlling case law (chiefly Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989)) regarding 42 U.S.C. § 1981 standing for retaliation over the protected advocacy of a white attorney on behalf of an African American and an American Indian child in federal race based civil statutes and the misrepresentation of facts regarding sufficient property injury for standing First Amendment retaliation claims to procure interim dismissals in the Shawnee, Kansas District Court case.

Fraud based allegations including 42 U.S.C. § 1983 Fraud on the court must comply not only with the plausibility criteria articulated in Twombly and Iqbal but also with Fed.R.Civ.P. 9(b)'s heightened pleading standard, which requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” See also Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir.2007) (holding that civil RICO claims, which are “essentially a certain breed of fraud claims, must be pled with an increased level of specificity” under Rule 9(b)). We have held that pursuant to Rule 9(b), a plaintiff must allege: “(1) the precise statements, documents, or misrepresentations made; (2) the time, place, and person responsible for the statement; (3) the content and manner in which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged fraud.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir.1997) (applying the requirements to a RICO fraud complaint). The plaintiff must allege facts with respect to each defendant's participation in the fraud. Id. at 1381. The Sixth Circuit has determined : “While notice pleading requirements are based on Rule 8, see Twombly, 550 U.S. at 555, claims for fraud are held to the heightened pleading standard of Rule 9(b).” Ind. State Dist. Council of Laborers & Hod Carriers Pension & Welfare Fund v. Omnicare, Inc.(6th Cir., 2013).

In United States ex rel. Lemmon v. Envirocare of Utah, Inc., the Tenth Circuit described a complaint that did provide sufficient detail regarding how the alleged conduct was fraudulent as including "the conduct that led to the violation, the reason the result constituted a violation, and a description of the effect of the violation." 614 F.3d 1163, 1171 (10th Cir. 2010) (emphasis added).

1. The District Court Plausibility Error

Clearly when a complaint is pled to meet the applicable Rule 8(a) requirements of § 1983 claims for discrimination, retaliation and conspiracy under Rule 8 and additional allegations of the “who, what, where, and when” of specific identified misrepresentations of fact, the reliance made on the misrepresentations and the injury to the plaintiff to meet Rule 9 pleading requirements where the § 1983 claims are based on fraud conduct, the complaint is indisputably plausible. The additional facts and circumstances pled to support fraud based § 1983 claims against specifically identified co-conspirators in furtherance of the civil rights conspiracy necessarily supplies the “heft” to meet the requirements of Twombly and Iqbal regarding plausibility.

A plausibility inquiry is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “The prima facie case is an evidentiary model, not a pleading standard…[and after Twombly and Iqual ]… is not the appropriate benchmark for determining whether a complaint has crossed the plausibility threshold.” Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49 (1st Cir., 2013).

The petitioner’s appellate Tenth Circuit opening brief statement of facts at pgs. 10, ¶¶ 32-35 documented the record that the amended complaint pled a meeting of the minds to form and join the civil rights conspiracy by each named defendant along with supporting facts and circumstances of individual conduct by each to support the plausibility of the conspiracy elements.

2. The Tenth Circuit Erred in Using Plausibility To Restore Heightened Pleading Standards Made Unlawful in Crawford-El v. Britton 523 U.S. 574 (1998)

The Tenth Circuit recognizes the danger in using the plausibility requirement to test a complaint and the proffered evidence as a prima facie case before a victim of actionable discrimination, retaliation, and conspiracy can obtain any discovery needed to plead specific facts about a clandestine conspiracy: “noted in Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir.2010), that “the plausibility standard has been criticized by some as placing an improper burden on plaintiffs,” where a chief criticism “is that plaintiffs will need discovery before they can satisfy plausibility requirements when there is asymmetry of information, with the defendants having all the evidence.” Khalik v. United Air Lines, 671 F.3d 1191.

a. Replacing The Heightened Pleading Standard

Ended in Crawford-El

The Tenth Circuit has previously not found the word plausibility to be a strong guide in itself to applying Rule 8: “The most difficult question in interpreting Twombly is what the Court means by ‘plausibility.’”Robbins v. Oklahoma, 519 F.3d 1242 at 1247 (10th Cir., 2008). The circuit has understandably seen Twombly as creating a useful filter to screen civil rights cases where government officials are charged with discrimination, retaliation, and conspiracy leading to officials having significant foreseeable time spent away from governance, responding to discovery requests and assisting in preparing answers complaints to complaints by victims of constitutional and federal statutory violations.

The Tenth Circuit is certainly in solid company with Seventh Circuit Judge Posner who observed that Iqbal, a discrimination case, adds the concern of official immunity to factors a court needs to weigh when evaluating a complaint’s pleading sufficiency under Rule 12(b)(6) after Twombly. Judge Posner cited Robert G. Bone, “Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal,” 85 Notre Dame L.Rev. 849, 882 (2010); Howard M. Wasserman, “ Iqbal, Procedural Mismatches, and Civil Rights Litigation,” 14 Lewis & Clark L.Rev. 157, 172-73 (2010) in his concerns regarding how Twombly applies in the civil rights context in Swanson v. Citibank, NA, 614 F.3d 400 (7th Cir., 2010). See Swanson, id, POSNER, Circuit Judge, dissent at 407.

b. The Tenth Circuit “Refined Standard”

The Tenth Circuit has named this new standard which it believes is not a heightened pleading standard the “Refined Standard”: “We recently stated this new standard is a “refined standard.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir.2011). In applying this new, refined standard, we have held that plausibility refers “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.’ ” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Further, we have noted that “[t]he nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn, 656 F.3d at 1215; see also Iqbal, 129 S.Ct. at 1950 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”)” Khalik v. United Air Lines, 671 F.3d 1188 at 1191 (10th Cir., 2012).

The Tenth Circuit takes advocacy in furtherance of vindicating the Supreme Court’s controlling precedent on pleading standards very seriously. In Medical Supply Chain, Inc. v. US Bancorp, NA, et al. 03-3342 (10th Cir. 2004) the Tenth Circuit sua sponte sanctioned the petitioner when he was an attorney over $21,000.00 for advocating upon appeal that the same district court and judge had improperly applied a heightened standard of pleading. The district court ruled that Medical Supply was not entitled to relief because there was no private right of action under the USA PATRIOT Act and Medical Supply failed to allege a conspiracy between two legally independent entities.

Medical Supply timely sought reconsideration pointing out the complaint stated the Unknown Hospital Supplier defendant and the identified coconspirators Novation, LLC and Neoforma, Inc. and alleged the independent entities to have been in publicized exclusionary agreements with the US Bancorp Piper Jaffray defendants. Medical Supply also pointed out the express language of the USA PATRIOT Act providing for a private right of action. However the trial judge denied reconsideration.

The petitioner as sole counsel for Medical Supply appealed on these same grounds and that the court had improperly held the complaint to a heightened pleading standard found unlawful in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 to the Tenth Circuit Court of Appeals. The appellate court without finding of law or fact upheld the trial court, stating again that the there was no private right of action created by the USA- PATRIOT Act despite express language in § 355 of the USA-PATRIOT Act, Pub. L. 107-56 describing civil liability and the Arkansas Supreme Court finding civil liability based on § 355 in Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (Ark. 2003).

Two weeks after Twombly, the Supreme Court issued a per curiam opinion, Erickson v. Pardus 551 U.S. 89 (2007) in which it rejected the Tenth Circuit’s finding that a prisoner’s civil rights complaint stating that the doctor's decision to withhold his prescribed Hepatitis C medication was "endangering his life" and causing "continued damage to [his] liver," was too conclusory. Id. at 93.

B. The Court Should End

The Disputes Over Plausibility In Rule 12(b)(6) Motions

The decision below cannot be reconciled with this Court‘s precedent in Crawford-El, Swierkiewicz, Twombly, and Iqbal concerning the sufficiency of civil rights and civil rights conspiracy claims under Federal R. Civ. P. Rule 8.

1. Courts Are Deeply Divided Over How to Apply Plausibility

An intractable conflict between the circuit courts exists over whether plausibility can be subjectively used to require additional allegations of facts beyond the allegations that sufficiently state a claim under Federal R. Civ. P. Rule 8.

a. The Intractable Conflict Between The Circuits

The Tenth Circuit in the case certiorari is sought from, Landrith v Kansas Attorney General; Khalik v. United Air Lines, , 671 F.3d F.3d 1188 (10th Cir., 2012), and Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231 (10th Cir., 2013); and the Second Circuit in Dejesus v. HF Management Services, LLC, No. 12-4565, 2013 WL 3970049 (2d Cir. Aug. 5, 2013) and Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 (2d Cir. 2013); and the D.C. Circuit in Terry v. United States at 10-11 (D.C. Cir., 2012); conflict with the plausibility standard outlined in Twombly and Iqbal and followed by the First Circuit in Rodríguez–Reyes v. Molina–Rodríguez, 711 F.3d 49 (1st Cir., 2013) and Ocasio–hernÁndez v. FortuÑo–burset, 640 F.3d 1 (1st Cir., 2011); the Third Circuit in In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010) and W. Penn Allegheny Health Sys. v. UPMC, No. 09-4468, (3d Cir. November 29, 2010); the Fourth Circuit in Coleman v. Md. Court of Appeals, 626 F.3d 187 (4th Cir. 2010).; the Fifth Circuit in Gardocki v. JP Morgan Chase Bank, N.A. (5th. Cir., 2013); the Sixth Circuit in Pfeil v. State Street Bank & Trust Co., 671 F.3d 585, 593 (6th Cir. 2012) and Fifth Third Bancorp v. Dudenhoeffer 692 F.3d 410 (6th Cir. 2013); the Seventh Circuit in Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146–47 (7th Cir. 2010), and Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); the Eighth Circuit in Hamilton v. Palm, 621 F.3d 816, 817–18 (8th Cir. 2010); the Ninth Circuit in Starr v. Baca, 652 F.3d 1202, 11 Cal. Daily Op. Serv. 9290, 11 Cal. Daily Op. Serv. 11148 (9th Cir., 2011) ;the Eleventh Circuit in Speaker v. U.S. HHS CDC, 623 F.3d 1371, 1380 (11th Cir. 2010); The Federal Circuit in K-Tech Telecommunications, Inc. v. Time Warner Cable, Inc., Nos. 12-1425, -1446 (Fed. Cir. Apr. 18, 2013).

The Tenth and Second Circuits continue this conflict of insisting a plaintiff’s complaint fails at the pleading stage for not alleging more than required by Rule 8, despite the Supreme Court’s reversals in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), and later Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam).

b. The Split in State Courts Over Plausibility

The State courts of Massachusetts, Minnesota, and California have adopted the plausibility standard in Twombly and Iqbal. i.e. Morana v. City of San Bernardino, E044071 (Cal. App. 5/28/2009). However states that have dismissal statutes based on notice pleading and Fed. R. Civ. P. Rule 8 have rejected following in Twombly and Iqbal as a heightened pleading standard.

The State of Kansas which has the concurrent state court jurisdiction over some federal statutory claims in common with the matter certiorari declined to affirm the Shawnee County, Kansas District Court dismissal of the petitioner’s action Landrith v. Jordan, et al, Case No. 10C1436 on the basis of plausibility standard in Twombly and Iqbal in the first of two appeals resulting from the trial court dismissals in Landrith v. Jordan, et al, KS Court of Appeals No. 107959 and the Kansas appellate courts have not based a published decision on the plausibility standard in Twombly and Iqbal.

The state courts of Iowa, Delaware, Tennessee, West Virginia, and Montana have rejected using the plausibility standard in Twombly and Iqbal.

The Supreme Court of Arizona rejected the plausibility standard from Twombly in Cullen v. Auto-Owners Ins. Co., 189 P.3d 344, 218 Ariz. 417 (Ariz., 2008). The Vermont Supreme Court rejected Twombly in Colby v. Umbrella, Inc. 955 A.2d 1082, 1087 n.1 (Vt. 2008). The West Virginia Supreme Court rejected Twombly in Highmark W. Va., Inc. v. Jamie, 655 S.E.2d 509, 513 n.4 (W. Va. 2007). An Alabama appeals court in Crum v. Johns Manville, Inc., 19 So.3d 208 at fn. 2 (Ala. Civ. App., 2009) rejected the plausibility standard in Twombly. A Colorado Appeals court in Med. Lien Mgmt., Inc. v. Allstate Ins. Co., 2013 COA 88 at ¶ 48 (Colo. App., 2013) rejected the plausibility standard in Twombly.

An Ohio appeals Court in Sacksteder v. Senney, 12 Ohio 4452 (Ohio App., 2012) determined that Twombly and Iqbal did not alter or effect the pleading of causes of action in Ohio State courts Sacksteder, 12 Ohio 4452 ¶46.

A Wisconsin appeals court in Data Key Partners v. Permira Advisors LLC at fn. (Wis. App., 2013) stated “We have found no Wisconsin case relying on Twombly or Iqbal to impose heightened pleading standards.”

The Iowa Supreme Court in Hawkeye Foodservice Distribution, Inc. v. Iowa Educators Corp., 812 N.W.2d 600 at 608, 279 Ed. Law Rep. 1194 (Iowa, 2012) has ruled it will not adopt the plausibility standard in Twombly and Iqbal and observes that “[f]or the most part, state high courts have declined to adopt the new standard announced in Twombly and Iqbal. See Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del.2011); Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 424 (Tenn.2011); McCurry v. Chevy Chase Bank, FSB, 169 Wash.2d 96, 233 P.3d 861, 863–64 (2010); Roth v. DeFeliceCare, Inc., 226 W.Va. 214, 700 S.E.2d 183, 189 n. 4 (2010).”

Since Hawkeye Foodservice Distribution was decided in 2010, the Montana Supreme Court has acknowledged that plausibility is “in tension with extant law in Montana” Brilz v. Metro. Gen. Ins. Co., 366 Mont. 78, 285 P.3d 494 at 500, 2012 MT 184 (Mont., 2012).

The Iowa Supreme Court in Hawkeye Foodservice Distribution did point out that the Nebraska Supreme Court in Doe v. Bd. of Regents, 280 Neb. 492, 788 N.W.2d 264, 278 (2010) adopted the plausibility standard in Twombly and Iqbal. However the Nebraska Supreme Court expressed concern over “lower federal courts have interpreted the Court's plausibility standard as a heightened pleading standard. In some cases decided after Twombly and Iqbal -frequently, cases requiring the plaintiff to show a defendant's intent or alleged involvement in unlawful conduct-federal courts have required a complaint to contain specific factual allegations of the defendant's claimed misconduct to survive a motion to dismiss for failure to state a claim” Doe v. Bd. of Regents, 280 Neb. at 504-5.

c. The Current Split In District Courts

Federal judges across the country routinely refer to Twombly and Iqbal as having created a "heightened" pleading standard. See, e.g., Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC, at n.2 (N.D. Ind. Jan. 30, 2012) (referring to “the heightened ‘plausibility’ standard articulated in Iqbal and Twombly”); Riemer v. Chase Bank USA, N.A., 2011 U.S. Dist. LEXIS 56307 (N.D. Ill. May 25, 2011) (“Although Twombly and Iqbal dealt with the detail required in the allegations of a complaint, courts in this and many other districts have extended Twombly's heightened pleading standard to affirmative defenses.”); Aros v. United Rentals, Inc., 2011 U.S. Dist. LEXIS 125870, 2011 WL 5238829, at *3 (D. Conn. Oct. 31, 2011) (pointing out that Iqbal and Twombly “attempt to impose a heightened standard of pleading to limit wasteful expansions of litigation costs”); Chiancone v. City of Akron, No. 5:11CV337, 2011 U.S. Dist. LEXIS 108444, 2011 WL 4436587, at *3 n.3 (N.D. Ohio, Sept. 23, 2011) (referring to the pleading standard established in Twombly as a “heightened pleading standard”); Baroness Small Estates, Inc. v. BJ's Rests., Inc., No. SACV 11-00468, 2011 U.S. Dist. LEXIS 86917, 2011 WL 3438873, at *5 (C.D. Cal. Aug. 5, 2011) (declining to apply “the ‘heightened pleading standard’ articulated by the Supreme Court in Twombly and Iqbal” to the pleading of affirmative defenses). See Twombly and Iqbal: The Introduction of a Heightened Pleading Standard, 27 Touro L. Rev. 233 (2011). A district court in Indiana identified a widespread split in authority among federal district courts over whether the Twombly and Iqbal heightened pleading standard for complaints similarly applies to the pleading of affirmative defenses. See generally Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC (N.D. Ind. Jan. 30, 2012).

2. Plausibility Is Not Cover To Exercise Discretion In The Selective Enforcement of Federal Statutes

The intractable conflict between the circuit courts is aggravated by the minority circuits and district courts following the Tenth Circuit in using the plausibility requirement from Twombly and Iqbal to impose a heightened pleading standard to facilitate their discretion over the choice of federal statutes and defendant parties plaintiffs will be permitted to enforce Congressionally granted private rights of action.

The Tenth Circuit decision in Bolden v. City of Topeka. 441 F.3d 1129 (10th Cir. 2006) conforms to the circuit’s use of discretion to facilitate ruling contrary to Crawford-El before Twombly in a manner that the Supreme Court would reverse the circuit on in Erickson. Even though the petitioner’s complaint was made as an attorney representing the African American James Bolden and alleged violations of Bolden’s race based civil rights under 42 USC §§1981 and 1982 by city officials who sometimes enjoy qualified immunity in similar claims brought in a personal capacity, the circuit clearly chose to reverse the district court’s dismissal construing 42 USC §1983 was not alleged as the cause of action to enforce 42 USC §1981, solely as a reactionary affirmation of Western states’ pro individual land rights in response to the Supreme Court’s contemporary ruling in Kelo v. City of New London, 545 U.S. 469 (2005). While not acknowledged by the circuit in the opinion, the reaction to Kelo is evidenced by the circuit’s finding a 42 USC §1983 cause of action against the city for taking Bolden’s land was adequately pled, while simultaneously using the vilification of the petitioner in the decision to maintain the circuit’s policy of not finding allegations of discrimination by government officials can state a claim. This policy is further highlighted by the circuit’s use of a hypothetical based on the petitioner’s representation of David M. Price in a parental rights termination case as an example to demonstrate the petitioner’s correct position on the effect of the Rooker-Feldman Dosctrine while using dicta to expressly state that the petitioner should be disbarred anyway.

Twombly and later Iqbal did not mean to “tighten pleading standards.” Instead, Twombly is confined to its facts: Twombly determined that a certain set of factual allegations did not support an inference that the defendants conspired in violation of the Sherman Act. . . . In sum, Twombly was concerned with the plausibility of an inference of conspiracy, not with the plausibility of a claim. The Twombly Court pointed out that its "plausibility" standard is not a heightened pleading standard beyond what the Federal Rules of Civil Procedure had always required. Twombly, 127 S.Ct. at 1973 n. 14.

The First Circuit even in the context of antitrust conspiracy is correct: “more general allegations informing the context of an agreement may be sufficient. This is particularly true given the increasing complexity and expert nature of "plus factor" evidence which would not likely be available at the beginning stages of litigation.” Evergreen Partnering Grp., Inc. v. Pactiv Corp.at 28-30 (1st Cir., 2013).

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

_________________________

Bret D. Landrith

Petitioner, pro se.